Skip to main content

Full text of "A history of English law"

See other formats 


.IT) 


^^=^"1 

k; =□ 

O^Sr^ 

-  " 

SS^Br^ 

>^^^a= 

§-==rn 

S«: 


gg? 


the  ppesence  of  this  Book 


in 


the].m.  kelly  liBRapy 

has  Been  made  possiBle 

thRouqh  the  qeneposity 


of 


Stephen  B.  Roman 


From  the  Library  of  Daniel  Binchy 


* 


A  HISTORY  OF  ENGLISH  LAW 


f 


A  HISTORY  OF  ENGLISH  LAW 

IN  SEVEN  VOLUMES 
For  List  of  Volumes  and  Scheme  of  the  History,  see  p.  vii. 


A   HISTORY 
OF  ENGLISH  LAW 


BY 


W.  S.  HOLDSWORTH.  KG.,  D.G.L. 

VINERIAN    PROFESSOR    OF  ENGLISH  LAW  IN  THE  UNIVERSITY  OF  OXFORD;    FELLOW   OF    ALL    SOULS 

COLLEGE,   OXFORD  ;    LATE  FELLOW   OF   ST.   JOHN'S  COLLEGE,  OXFORD  ;     FOREIGN    ASSOCIATE 

OF  THE   ROYAL   BELGIAN  ACADEMY  ;    FELLOW  OF  THE   BRITISH   ACADEMY 


VOLUME  III 


THIRD   EDITION,    REWRITTEN 


To  say  truth,  although  it  is  not  necessary  for  counsel  to  know  what 
the  history  of  a  point  is,  but  to  know  how  it  now  stands  resolved,  yet  it  is  a 
wonderful  accomplishment,  and,  without  it,  a  lawyer  cannot  be  accounted 
learned  in  the  law.  Roger  North 


METHUEN    &    GO.    LTD. 

36    ESSEX    STREET    W.C. 

LONDON 


First  Published  ....  May  igoj 
Second  Edition  ....  October  igi4 
Third  Edition,  Rewritten    .         .  1923 


PRINTED   IN   GREAT    BRITAIN 


TO 

The  Right  Honourable  FREDERICK  EDWIN 
EARL  BIRKENHEAD 

SOMETIME  LORD  HIGH  CHANCELLOR  OF  GREAT  BRITAIN 

THIS    WORK 

IS 

BY    HIS    lordship's    PERMISSION 

RESPECTFULLY    DEDICATED 


PLAN  OF  THE    HISTORY 

(Vol.  I.)  BOOK  I. — The  Judicial  System  :  Introduction.  Chap.  I.  Origins. 
Chap.  II.  The  Decline  of  the  Old  Local  Courts  and  the  Rise  of  the  New  County 
Courts.  Chap.  III.  The  System  of  Common  Law  Jurisdiction.  Chap.  IV.  The  House 
of  Lords.  Chap.  V.  The  Chancery.  Chap.  VI.  The  Council.  Chap.  VII.  Courts 
of  a  Special  Jurisdiction.     Chap.  VIII.  The  Reconstruction  of  the  Judicial  System. 

(Vol.  II.)  BOOK  II.  (449-1066) — Anglo-Saxon  Antiquities  :  Introduction. 
Part  I.  Sources  and  General  Development.  Part  II.  The  Rules  of  Law :  §  i  The 
Ranks  of  the  People ;  §  2  Criminal  Law ;  §  3  The  Law  of  Property ;  §  4  Family  Law ; 
§  5  Self-help  ;  §  6  Procedure. 

BOOK  III.  (1066-1485) — The  Medieval  Common  Law:  Introduction.  Part 
I.  Sources  and  General  Development:  Chap.  I.  The  Intellectual,  Political,  and 
Legal  Ideas  of  the  Middle  Ages.  Chap.  II.  The  Norman  Conquest  to  Magna  Carta. 
Chap.  III.  The  Reign  of  Henry  III.  Chap.  IV.  The  Reign  of  Edward  I.  Chap.  V. 
The  Fourteenth  and  Fifteenth  Centuries.  (Vol.  III.)  Part  II.  The  Rules  of  Law: 
Chap.  I.  The  Land  Law  :  §  i  The  Real  Actions ;  §  2  Free  Tenure,  Unfree  Tenure, 
and  Chattels  Real ;  §  3  The  Free  Tenures  and  Their  Incidents ;  §  4  The  Power  of 
Alienation ;  §  5  Seisin  :  §  6  Estates ;  §  7  Incorporeal  Things ;  §  8  Inheritance ;  §  9 
Curtsey  and  Dower  ;  §  10  Unfree  Tenure ;  §  ii  The  Term  of  Years ;  §  12  The  Modes 
and  Forms  of  Conveyance ;  §  13  Special  Customs.  Chap.  II.  Crime  and  Tort : 
§  I  Self-help ;  §  2  Treason ;  §  3  Benefit  of  Clergy,  and  Sanctuary  and  Abjuration ; 
§  4  Principal  and  Accessory ;  §  5  Offences  Against  the  Person ;  §  6  Possession  and 
Ownership  of  Chattels  ;  §  7  Wrongs  to  Property ;  §  8  The  Principles  of  Liability ; 
§  9  Lines  of  Future  Development.  Chap.  III.  Contract  and  Qua  si-Contract.  Chap. 
IV.  Status :  §  i  The  King ;  §  2  The  Incorporate  Person ;  §  3  The  Villeins ;  §  4  The 
Infant ;  §  5  The  Married  Woman.  Chap.  V.  Succession  to  Chattels  :  §  i  The  Last 
Will ;  §  2  Restrictions  on  Testation  and  Intestate  Succession ;  §  3  The  Representa- 
tion of  the  Deceased.  Chap.  VI.  Procedure  and  Pleading  :  §  i  The  Criminal  Law ; 
§  2  The  Civil  Law. 

(Vol.  IV.)  BOOK  IV.  (1485-1700) — The  Common  Law  and  Its  Rivals:  Intro- 
duction. Part  I.  Sources  and  General  Development:  Chap.  I.  The  Sixteenth 
Century  at  Home  and  Abroad.  Chap.  II.  English  Law  in  the  Sixteenth  and  Early 
Seventeenth  Centuries :  The  Enacted  Law.  (Vol.  V.)  Chap.  III.  English  Law  in 
the  Sixteenth  and  Early  Seventeenth  Centuries  :  Developments  Outside  the  Sphere 
of  the  Common  Law — International,  Maritime,  and  Commercial  Law.  Chap.  IV. 
English  Law  in  the  Sixteenth  and  Early  Seventeenth  Centuries :  Developments  Out- 
side the  Sphere  of  the  Common  Law — Law  Administered  by  the  Star  Chamber  and 
the  Chancery.  Chap.  V.  English  Law  in  the  Sixteenth  and  Early  Seventeenth 
Centuries:  The  Development  of  the  Common  Law.  (Vol.  VI.)  Chap.  VI.  The 
Public  Law  of  the  Seventeenth  Century.  Chap.  VII.  The  Latter  Half  of  the  Seven- 
teenth Century :  The  Enacted  Law.  Chap.  VIII.  The  Latter  Half  of  the  Seven- 
teenth Century  :  The  Professional  Development  of  the  Law. 

(Vol.  VII.)  Partll.  The  Rules  of  Law.  Chap.  I.  The  Land  Law  :§  i  The  Action 
of  Ejectment ;  §  2  Seisin  Possession  and  Ownership ;  §  3  Contingent  Remainders ; 
§  4  Executory  Interests  ;  §  5  Powers  of  Appointment ;  §  6  The  Rules  Against  Per- 
petuities ;  §  7  Landlord  and  Tenant ;  §  8  Copyholds ;  §  9  Incorporeal  Things ;  §  10 
Conveyancing;  §  11  The  Interpretation  of  Conveyances.  Chap.  II.  Chattels 
Personal :  §  i  The  Action  of  Trover  and  Conversion ;  §  2  The  Ownership  and 
Possession  of  Chattels;  §3  Choses  in  Action.  Chap.  III.  Contract  and  Quasi- 
Contract :  §  i  The  Doctrine  of  Consideration  ;  §  2  The  Invalidity,  the  Enforcement, 
and  the  Discharge  of  Contract ;  §  3  Quasi-Contract.  Chap.  IV.  The  Law  Mer- 
chant. I. — Commercial  Law:  §1  Usury  and  the  Usury  Laws;  §2  Negotiable 
Instruments ;  §  3  Banking;  §  4  Commercial  Societies  ;  §  5  Agency ;  §  6  Bankruptcy. 
II. — Maritime  Law.  III. — Insurance.  Chap.  V.  Crime  and  Tort.  Lines  of  De- 
velopment. §  I  Constructive  Treason  and  Other  Cognate  Offences ;  §  2  Defama- 
tion ;  §  3  Conspiracy,  Malicious  Prosecution,  and  Maintenance ;  §  4  Legal  Doctrines 
Resulting  from  Laws  Against  Religious  Nonconformity ;  §  5  Lines  of  Future 
Development;  §  6  The  Principles  of  Liability.  Chap.  VI.  Status:  §  i  The  King 
and  Remedies  Against  the  Crown :  §  2  The  Incorporate  Person ;  §  3  British  Sub- 
jects and  Aliens.  Chap.  VII.  Evidence,  Procedure,  and  Pleading :  §1  Evidence; 
§  2  Common  Law  Procedure ;  §  3  Equity  Procedure. 


CONTENTS 


PAGE 

Plan  of  the  History vii 

List  of  Cases xxxvii-xli 

List  of  Statutes xliii-xlv 

BOOK  III.  (continued) 

PART  II 
THE  RULES  OF  LAW 

CHAPTER  I 

The  Land  Law 

§  I.  The  Real  Actions 3-29 

What  is  a  real  action  ? 3.4 

Importance  of  the  real  actions 4 

Those  by  which  rights  to  corporeal  hereditaments  of  free  tenure 

were  asserted 5-14 

(i)  The  writ  of  right  group 5-8 

Varieties 5-6 

Magna  Carta  §  34 6 

Survivals  in  them  of  old  rules 6-7 

Disuse  of  writs  of  right 7-8 

Neglect  to  pass  statutes  of  limitation — Legal  memory        .  8 

(ii)  The  Assize  of  novel  disseisin 8-11 

Origins 8 

Scope 9 

Development 9-10 

Used  to  protect  title 10 

Extended  by  the  legislature 10 

Extended  by  omission  to  pass  statutes  of  limitation    .         .  10 

The  Assize  of  nuisance 11 

(iii)  The  writs  of  entry  sur  disseisin 11-14 

Principle  of  the  writs  of  entry 11-12 

Date  when  they  originated 12 

Reason  for  their  invention 12-13 

Their  original  scope 13 

Entry  in  the  per  and  cui 13 

Magna  Carta 13 

Entry  in  the /05^ 13-14 

Their  position  in  relation  to  the  other  groups     ...  14 

They  supersede  the  others 14 

The  other  real  actions 15-26 

(i)  The  actions  which  lie  as  between  lord  and  tenant .         .         .  15-17 

Ne  injuste  vexes 15 

De  consuetudinibus  et  serviciis 15-16 

Cessavit 16 

ix 


CONTENTS 


PAGE 

Mesne *  i6 

Warrantia  Cartae i6 

Escheat i6 

De  recto  Custodiae  terrae  et  heredis 17 

(ii)  The  actions  which  lie  to  protect  the  lord  or  tenant  of  parti- 
cular estates  in  the  land 17-19 

Estates  tail 17-18 

The  writ  of  Formedon         .         .         .      *  .         .         .  17 

Its  nature 17 

Varieties 17 

Did  they  exist  before  De  Donis  ?          ....  18 

Estates  for  life 19 

Intrusion 19 

Entry  ad  communem  legem 19 

Entry  in  casu  proviso 19 

Entry  in  consimili  casu 19 

Estates  for  life  or  years 19 

Ad  terminum  qui  praeteriit 19 

Estates  held  in  common 19 

Partitione  facienda 19 

(iii)  The  actions  which  lie  to  protect  incorporeal  rights         .         .  19-20 

Novel  disseisin 19 

Quod  permittat 20 

Quo  jure 20 

Secta  ad  molendinum 20 

(iv)  The  action  which  lies  to  assert  the  right  to  a  villein       .         .  20 

Native  habendo 20 

De  Libertate  Probanda 20 

(v)  The  actions  which  arise  out  of  certain  family  relationships    .  20-24 

Husband  and  wife 20-22 

Writs  connected  with  dower 20-21 

Writ  of  right  of  dower 20 

Writ  of  dower  under  nihil  habet 21 

Admeasurement  of  dower 21 

Developments   made  by  Chancery  in  the  eighteenth 

century 21-22 

Cui  in  vita 22 

Cui  ante  divortium 22 

Causa  matrimonii  praelocuti 22 

Ancestor  and  heir 22-24 

Writs  of  right 22-23 

Assize  of  Mort  d'ancestor 23 

Extensions  of  the  assize 23 

Ayel,  Besaiel,  Cosinage 24 

(vi)  The  actions  which  arise  out  of  the  incapacity  of  persons        .  24 

Dum  fuit  non  compos  mentis 24 

Dum  fuit  infra  aetatem 24 

Sine  assensu  capituli 24 

(vii)  The  actions  concerning  ecclesiastical  property       .         .         .  24-26 

The  writ  of  right  of  advowson 24 

Assize  of  darrein  presentment 24-25 

Quare  impedit 25 

Quare  non  admisit 25 

Assize  utrum 25-26 

(viii)  The  actions  which  deal  with  abuse  of  the  process  of  the  court  26 

Attaint 26 

Quod  ei  deforceat 26 

Redisseisin  and  post  disseisin 26 

Encroachments  of  the  personal  actions 26-29 

Trespass  and  novel  disseisin 27 

„          „    wardship 27 

„          „    replevin 27 


CONTENTS  Td 

PAGB 

Trespass  and  nuisance 28 

„  „    Curia  Claudenda,  Cessavit,  Secta  ad  Molen- 

dinum 28 

,,          „    Annuities  and  Corodies          ....  28 

The  real  actions  and  real  property 29 

§  2.  Free  Tenure,  Unfree  Tenure,  and  Chattels  Real         .        .  29-34 

Free  tenure  and  unfree  tenure 29-34 

The  procedural  test 29-30 

Wide  field  covered  by  the  free  tenures 30 

Comparison  with  French  law 30 

Survivals 30-31 

What  ideas  underlie  the  procedural  test  ? 31 

Their  fluctuating  nature 31 

Incidents 31 

Character  of  services 31 

Analogy  of  servant  and  independent  contractor      .         .         .  31-32 

Status 32 

Control  of  lord  over  those  holding  in  villeinage  necessary  for 

the  working  of  the  manor 32-33 

The  distinction  remains  after  the  causes  for  it  disappear       .         .  33 

The  conveyancing  test 33*34 

Free  tenure  and  chattels  real 34 

Denial  of  the  real  actions  rests  on  no  economic  difference     .         .  34 

Difference  in  future  history 34 

§3.  The  Free  Tenures  and  their  Incidents 34-73 

The  free  tenures 34-54 

(i)  Frankalmoin 34*37 

Definition ^4-^S 

Services 35 

Jurisdiction 35 

No  secular  service 36 

Tenure  by  Divine  Service 36 

Effect  of  Edward  I.'s  legislation 36-37 

(ii)  Knight  service 37-46 

Knight  service  in  Littleton 37 

Had  lost  its  original  meaning  in  the  fifteenth  century       .         .  37-38 

Knight  service  in  the  reigns  of  William  I.  and  II.     .         .         .  38-39 

King,  mesne,  and  tenant 39-40 

Commutation  for  personal  service 40 

Uncertain  fine  as  between  king  and  tenant  in  chief   .         .  40-41 

Scutage  as  between  mesne  lord  and  tenant         ...  41 

Effects  on  the  development  of  the  tenure  of  (a)  royal  policy       .  42-44 

Favours  commutation 42 

The  enquiry  of  1 1 66 43 

Effects 43 

Lords  grant  their  scutages  to  the  king       ....  43 

Tends  to  be  levied  as  if  a  national  tax       ....  43 

Quia  Emptores 44 

Uncertain  fines  paid  to  the  king  lost  sight  of     .         .         .  44 
Effects  on  the  development  of  this  tenure  of  (6)  the  growth  of 

parliament 44-45 

Magna  Carta  and  scutage 44 

Superseded  by  newer  forms  of  national  taxation         .         .  45 

Tenure  per  baroniam 45-46 

(iii)  Serjeanty 46-51 

Serjeantry  and  service 46 

The  "Servientes"  of  Domesday 46 

Personal  character  of  the  service 46 

Legal  consequences  of  this 46-47 

Non-military  services 4748 

The  great  officers  of  the  kingdom 47-48 


xii  CONTENTS 

PAGE 

Domestic  services 48 

The  magnates  and  their  Serjeants 48 

Military  services 49-51 

Supplied  light  auxiliary  troops 49 

Becomes  a  duty  to  supply  small  munitions  of  war     ...  49 

Causes  of  decay 49-51 

Hired  servants  more  efficient 49-5° 

Honourable  and  military  services  only  left         ....  50 

Grand  and  petit  serjeanty 50 

Origin  of  technical  distinction 50-5^ 

(iv)  Socage 51-54 

Negative  characteristics  of  the  tenure 51 

"  Soc  "  and  "  Socmen  " 51 

Villein  and  free  socage 52 

General  characteristics 52 

Socage  and  fee  farm 52-53 

Merger  of  the  two  classes 53 

Socage  falls  in  best  with  modern  ideas  of  land-holding      .         .  53 

Burgage 53-54 

The  incidents  of  the  free  tenures 54-73 

(i)  Homage  and  Fealty 54-57 

Definitions 54 

Original  consequences  of  homage 55 

Homage  and  felony 55 

Importance  diminishes 56 

Homage  and  allegiance 56 

Growth  of  jurisdiction  of  common  law  courts     ...  56 

Consequences  become  proprietary 56 

Conclusions  to  be  drawn  from  this  history         ....  57 

(ii)  Relief  and  Primer  Seisin 57-61 

Origin  of  the  relief 57-58 

Not  payable  on  death  of  lord 58 

At  first  a  characteristic  of  tenure  by  military  service          .         .  58 

Spreads  to  the  other  tenures 59 

Amount  of  the  relief 59 

Gradually  fixed 59-60 

The  lord  and  primer  seisin 60 

The  Statute  of  Marlborough 60-61 

The  king  and  primer  seisin 61 

(iii)  Wardship  and  Marriage 61-66 

Basis  of  these  rights 61 

Ancient  and  modern  ideas 61-62 

Vagueness  of  these  rights  after  the  Conquest     ....  62 

Glanvil 63 

Magna  Carta 63 

Statute  of  Merton 63-64 

Statute  of  Westminster  I. 64 

Regarded  as  chattels 64 

Slight  modifications 64 

Conflict  between  the  rights  of  different  lords     ....  64-65 

Statute  of  Westminster  H 65 

Only  exist  in  tenure  by  knight-service  and  grand  serjeanty        .  65 

Guardianship  in  socage 65-66 

(iv)  Aids 66-67 

Original  vagueness 66 

Magna  Carta 66 

Growth  of  fixity 66-67 

Statutes  of  1275  ^^^  i35o 67 

(v)  Escheat  and  Forfeiture 67-73 

Definitions 67 

Escheat  and  reversion 67-68 

Escheat  propter  defectum  sanguinis 68 


CONTENTS  xiii 

PAGE 

Escheat  propter  delictum  tenentis 69 

Felony  and  escheat 69 

Magna  Carta 69 

Doctrine  of  corruption  of  blood 69 

Year,  day,  and  waste 69-70 

The  Act  of  1870 70 

Forfeiture 70 

Forfeiture  and  treason 70-71 

The  Act  of  1870 71 

The  application  of  escheat  and  forfeiture  to  equitable  estates    .  71-72 

Law  as  to  this  in  the  Middle  Ages 71 

The  Statute  of  Uses 71 

Later  equitable  estates 71-72 

(a)  Escheat 71-72 

(b)  Forfeiture 72 

General  conclusions 73 

4.  The  Power  of  Alienation 73-87 

(i)  Restrictions  in  the  interest  of  expectant  heirs         ....  73-76 

Glanvil 73-74 

Effects  of  the  rule  of  primogeniture  on  the  older  rules      .        .  75 

Bracton 75 

Heir  compensated  by  prohibition  of  devise        .         .         .         .  75-76 
(2)  Restrictions  in  the  interest  of  the  maintenance  of  the  rights  and 

duties  involved  in  the  relation  of  lord  and  tenant        .         .  76-87 

Vague  ideas  of  the  older  law 76-77 

Land-owning  becomes  a  form  of  property         ....  77 

The  royal  courts  favour  freedom  of  alienation    ....  77-78 

Mortmain 78 

Magna  Carta 78-79 

(i)  Feudal  restraints 79-86 

(a)  Mesne  tenant  and  mesne  lord 79-83 

Alienation  of  land 79-8 1 

Subinfeudation  and  substitution       .         .         .         .  79  80 

Quia  Emptores 80-81 

It  diminishes  the  importance  of  tenure    ...  81 

Did  not  apply  to  the  king 81 

Alienation  of  the  seignory 81-83 

Feudal  difficulty 82 

Legal  difficulty 82 

Attornment 82-83 

(b)  The  tenant  in  chief  and  the  king 83-85 

Ordinance  of  1256 83 

The  law  as  laid  down  accepted        ....  83-84 

Statute  of  1327 84 

Reasons  for  difference  in  treatment  of  tenants  in  chief  84 

The  principle  of  freedom  of  alienation      ...  85 

Public  policy 85 

Limited  restraints  allowed 85-86 

Restrictions  on  tenants  of  smaller  estates         .         .  86 

No  hint  of  a  rule  against  remoteness        ...  86 

(ii)  Restraints  upon  alienation  to  religious  houses      .         .         .  86-87 

The  Provisions  of  Westminster 87 

De  Viris  Religiosis 87 

Ancient  and  modern  reasons  for  this  legislation       .         .  87 

\  5.  Seisin 88-101 

Meaning 88 

Ownership  and  possession 88-89 

The  contrast  the  mark  of  a  mature  system  of  law        ....  89 

English  law  has  no  theory  of  ownership  like  that  of  Roman  law .         .  89 

Scope  of  the  writ  of  right 89-90 

Bracton's  treatment  of  the  subject 90 


XIV 


CONTENTS 


Seisin  and  different  rights  thereto  is  all  that  English  law  recognizes 

Consequences       

(li  The  person  seised  has  all  the  rights  of  an  owner 
(2)  The  person  disseised  has  none  of  these  rights . 

Better  protection  of  the  right  to  seisin  .... 

Rights  of  person  seised  not  curtailed 

The  Real  Property  Limitation  Acts 

No  usucapio  because  it  is  not  wanted 

The  logical  consequences  of  this  principle    .... 

Originality  of  the  common  law  theory 

The  question  why  the  law  protects  possession 

Application  of  these  theories  to  the  facts  of  land  holding 

Two  persons  cannot  possess  at  once  the  same  thing    . 

But  applied  to  lord  and  tenant  and  to  life  tenant  and  reversioner 

An  incorporeal  thing  cannot  be  possessed     .... 

The  idea  of  livery  of  seisin  is  applied  to  incorporeal  things  . 

ii)  In  respect  of  transfer  and  creation  .... 
2)  In  respect  the  way  the  law  regards  them 
{3)  In  respect  of  the  way  in  which  they  are  enforced  and  protected 


PAGE 

91 
91 

91-92 
92 

92-93 
93 

93-94 
94 
94 
95 
95 
96 
96 
96 

96-97 
97-101 

98-99 

99-100 

100- 10 1 


§  6.  Estates 


estate  tail 


Wide  powers  of  landowners  in  the  thirteenth  century  .... 
The  "  law  "  which  could  be  imposed  by  the  Forma  Doni     . 

Royal  gifts 

Influence  of  Roman  learning  as  to  conditions 

Confused  state  of  the  law 

Thomas  of  Weyland's  settlement 

Determinable  fees 

Estates  in  possession 

The  estate  in  fee  simple 

The  word  *•  heirs  "  a  word  of  limitation  .... 

This  conclusion  reached  through  the  law  as  to  warranty 

Was  favoured  both  by  the  judges  and  the  great  landowners 

The  word  "  assigns  "      . 

Becomes  unnecessary     . 

Origins  of  the  rule  in  Shelley'' s  Case 

Later  history 

Why  it  has  caused  so  many  doubts 
The  estate  in  fee  simple  conditional  and  the 
The  maritagium     .... 
The  conditional  gift 
The  interpretation  of  these  gifts     . 
A  fixed  rule  of  interpretation  grows  up 
De  Donis  Conditionalibus 
The  literal  meaning  of  the  statute  . 
Bereford,  C.J.'s,  construction 
Its  modern  construction . 
Varieties  of  the  estate  tail 
Petitions  for  repeal  of  De  Donis 
The  legal  profession  evade  it . 

Warranty        .... 
Lineal  and  collateral  warranty 
Warranty  and  collusive  real  action 
The  common  recovery     . 

Antiquity  of      . 
Taltartini's  Case 
The  effect  of  a  fine  . 
Estates  for  life,  pur  autre  vie,  at  will  and  at  sufferance 
Old  ideas  as  to  the  position  of  the  tenant  lor  life 

Newer  ideas — Waste 

The  tenant  for  life  is  seised     .... 
Results  of  this 


101-137 

ioi-ro2 

102-103 

103 

103 

103-104 

104 

105 

105-132 

105-111 

105 

105-106 

106 

106 

106-107 

107-108 

108-109 

109-111 

111-120 

III 

111-112 

112-113 

113-114 

114 

114 

"5 

115-116 

116 

116-117 

117-120 

117 

117-118 

118-119 

118 

118 

119 

120 

120-125 

120 

120 

120 

120-121 


CONTENTS  XV 


PAGE 

The  Provisions  of  Westminster 121 

The  Statute  of  Marlborough 121 

The  Statute  of  Gloucester 121 

The  Statute  of  Westminster  II 121-122 

Later  legislation 1^2 

The  year  books  and  waste 122 

Must  be  voluntary 122 

Permissive  waste 122-123 

Ameliorating  waste 123 

"  Without  impeachment  of  waste "  .         .         .         .  123 

Botes  and  estovers 123 

The  estate  pur  autre  vie  a  chattel  in  the  thirteenth 

century     123-124 

Regarded  as  a  freehold  in  the  fourteenth  century     .  124 

Occupancy 124-125 

The  tenancy  at  will 125 

Originally  regarded  as  a  servitude  ....  125 

Emblements 125 

Tenancy  at  sufferance 125 

Co-ownership 126-128 

The  various  kinds 126 

Gradual  evolution 126 

Bracton  and  Britton 126-127 

Partition 127 

Tenancy  in  common 127-128 

Tenancy  by  entireties 128 

Estates  created  to  secure  money  lent ;  tenancies  by  Elegit, 

Statute  Merchant,  and  Statute  Staple          .         .         .  128-132 

Mortuum  vadium  and  vivum  vadium  in  Glanvil     .         .  128-129 

Defects 129 

They  disappear 129 

Three  methods  adopted 129-130 

The  form  which  prevailed 130 

Reasons  for  this 130 

Strictness  of  the  common  law 130 

The  Jews  and  the  mortgage 130-131 

Tenancy  by  Elegit 131 

Statutes  Merchant  and  Staple 131-132 

Estates  in  expectancy 132-137 

Reversions  and  remainders 132-133 

The  reversion 133 

Reversion  and  escheat 133 

The  remainder 134-137 

Vested  or  contingent 134 

The  latter  cease  to  be  valid 134 

Littleton  on  Rickhill's  settlement 135 

Begin  to  be  allowed  in  Henry  VI. 's  reign       .         .         .  135-136 

Not  fully  allowed  till  the  following  period       .         .         .  136 

A  doubtful  case  in  the  Book  of  Assizes  ....  136-137 

Note  upon  Taltarum's  Case 137 

7.  Incorporeal  Things 137-171 

Advowsons,  Commons,  Rents,  and  Easements 138-157 

Advowsons 138-143 

Definition 138 

Historical  importance    .         . 138 

Origins 139 

The  older  and  the  newer  ideas 140 

Treated  like  a  piece  of  land 140 

Why  it  gave  rise  to  so  much  litigation 140-141 

Helps  towards  the  realization  of  incorporeal  things       .         .  141-142 

And  towards  their  classification 142-143 

VOL.    III. — b 


xvi  CONTENTS 

PAGE 

Commons     .         .         .* 143-151 

Classification  of  rights  of  common 143-144 

Origins i44-i45 

Rights  of  common  and  the  village  community       .         .         .  146 

Approvement 146-147 

The  Statute  of  Merton 147 

The  Statute  of  Westminster  II 147 

Causes  which  led   to  distinction  between  rights  appendant 

and  those  appurtenant         .         .         .         •         .         •  147-150 

Rights  appurtenant  become  the  most  general          .         .  150-151 

Rent  service,  rent  sec  and  rent  charge 151-153 

Annuities 152 

Corodies 152-153 

Mediaeval  realism 153 

Easements I53-I57 

Classification I53-I54 

Number  of  easements  not  fixed 

Nature  not  clearly  fixed 154 

The  easement  and  proceedings  for  nuisance  ....  154-156 

No  clear  distinction  between  easements  and  natural  rights     .  156 

No  easement  in  gross 156-157 

Covenants  annexed  to  the  land 157-166 

Easements  and  covenants 157-158 

Origin  in  the  obligation  of  warranty 158-159 

(i)  How  far  on  a  conveyance  in  fee  simple  can  (i)  the  benefit 
and  (ii)  the  burden  of  a  covenant  be  made  to  run  with 

the  land 159-165 

Modes  of  enforcing  the  obligation  of  warranty          .         .  159-160 

Implied  and  express  warranties 160-161 

(i)  The  benefit  of  these  covenants 161-163 

The  analogy  of  inheritance 161-162 

The  analogy  of  an  easement 162 

Pakenhani's  Case 162 

Privity  of  estate  in  assignor 162-163 

Covenants  for  title 163 

(ii)  The  burden  of  these  covenants 163-165 

Bracton 163 

Cannot  be  annexed  to  land 164 

This  accords  with  the  principles  of  modern  law      .  164-165 
(2)  How  far  could  a  covenant  be  made  to  run   with  the 

reversion 165 

Prescription 166-171 

Only  applies  to  certain  kinds  of  incorporeal  things          .         .  166 

What  is  legal  memory 166 

Bracton 166-167 

Deed,  custom,  prescription 167-168 

Special  "  law  "  created 168 

Therefore  prescription  only  for  things  against  common  right  i68-i6g 

Franchises     .         .         . i6g 

Communities  prescribe 169 

Change  in  the  theory  of  prescription 169-170 

Evidence  of  a  grant  made  before  memory      .         .         .         .  170 

Effects  of  the  old  and  nev^^  theories 170-171 

§8.  Inheritance 171-185 

The  rules  of  inheritance 171-172 

(i)  The  preference  of  males  to  females 172 

(2)  The  rules  of  primogeniture  and  coparcenary 172-175 

Primogeniture  the  rule  of  the  military  fief          ....  172 

Parage 173 

Spread  of  the  rule 173-174 

Coparcenary  in  Bracton 174 


CONTENTS  xvii 

PAGE 

Coparcenary  and  the  incidents  of  tenure 174-175 

(3)  The  rule  of  representation 175 

Glanvil  and  Bracton 175 

The  "  casus  regis  " 175 

Settled  in  Edward  I.'s  reign 175 

(4)  The  exclusion  of  ascendants 175-177 

Blackstone's  view 176 

Maitland's  view 176 

Objections 176 

Quia  Emptores  and  Britton 177 

(5)  The  inheritance  of  collaterals 177-183 

The  "  gradual  "  and  '*  parentelic  "  schemes      ....  177-178 

The  parentelic  scheme  in  the  Year  Books 178-179 

What  about  remote  ascendants  ? 179 

"  Paterna  paternis,  materna  maternis  " 179-180 

This  maxim  and  the  law  of  procedure 180 

Illustration 180-181 

Case  in  Y.B.  49  Edward  III 181 

Father's  ancestors  preferred 181-182 

How  are  we  to  decide  between  the  father's  ancestors  ?       .         .  182 

Clere  v.  Brook 182 

Manwood  C.B.'s  dictum 182 

Bacon  and  Hale 182 

Plowden  and  Blackstone 183 

The  Inheritance  Act 183 

(6)  The  position  of  the  half-blood 183-185 

Uncertain  in  the  thirteenth  century 183-184 

Growth  of  common  law  rule  as  to  "  possessio  fratris  "      .         .  184-185 

Hardships  of  the  rule 185 

9.  Curtesy  and  Dower 185-197 

Curtesy .  185-189 

Derivation  of  the  term i86 

Origins i86 

The  common  law  rule 187 

De  Donis 187 

The  wife's  seisin 187-188 

Birth  of  issue 188 

Later  history 188-189 

Dower 189-197 

The  common  law  rule 189 

Five  kinds  of  dower  known  to  Littleton 189 

(i)  The  old  order — dower  created  by  the  act  of  the  parties  .         .  189-191 

Glanvil  and  Bracton 189-190 

Dower  of  chattels  disappears 190 

Limitation  of  amount  disappears 190 

Ad  ostium  ecclesiae 190 

Ex  assensu  patris 191 

Disappearance 191 

(2)  The  new  order — dower  created  by  law 191-197 

(i)  The  reasons  for  the  change 192-193 

Feudalism  and  the  widow's  rights       ....  192 

La  pluis  beale 192 

The  power  of  alienation  and  the  widow's  rights  .         .  192 

Need  for  a  fixed  rule  of  law 192-193 

(ii)  The  contents  of  the  widow's  right 193-195 

The  third 193 

Thehusband's  alienation  does  not  affect  it  .         .         .  193 

The  technical  reasons  for  this  rule      ....  193-194 

A  compromise 194 

Relation  to  the  named  dowers 194-195 

Becomes  general 195 


xviii  CONTENTS 


PAGE 

(iii)  The  modes  in  which  dower  may  be  barred       .         .         .  195-197 

Joint  tenancy I95 

Elopement 195 

Exchange 195 

Fines 195-196 

The  Use 196 

The  Statute  of  Uses 196 

Equitable  bar 196-197 

The  devices  of  the  conveyances 197 

The  Dower  Act 197 

10.  Unfree  Tenure 198-213 

The  common  field  mode  of  cultivation 198 

The  "  farm  "  system 198 

The  labour-service  system 198-199 

The  money-rent  system 199 

Thirteenth  to  fifteenth  centuries — transition  from  labour-service   to 

money-rent  system 199 

The  composite  class  of  villani 199-200 

Services 200 

Incidents •         .         .  200-201 

Origins  of  these  incidents  are  diverse 201 

Fixity  of  the  system 201 

Gradual  nature  of  the  transition 201-202 

The  process  of  transition 202-206 

Growing  prosperity 202 

Rent-paying  tenants  in  the  thirteenth  century        .         .         .  202-203 

The  Black  Death 203 

Breaks  up  the  old  economic  conditions 203-204 

The  revolt  of  1381 205 

Spread  of  leases  and  commutation 205-206 

Tenure  by  copy  of  the  court  roll 206 

The  effect  of  this  transition  on  the  land  law          ....  206-209 

Increased  protection  for  the  copyholder 206-207 

Need  for  this .  207-208 

The  Chancery  and  the  Council 208 

The  common  law  courts  follow 208-209 

The  settlement  of  the  position  of  the  copyholder    ....  209-213 

Not  settled  till  the  Tudor  period 209 

Increased  need  for  regulation  at  this  period   ....  209-210 

Statutes  and  royal  commissions 210 

Efforts  of  all  the  courts 21  r 

Nature  of  the  settlement  effected 211-212 

Effect  on  the  law  of  copyhold  tenure 212  213 

11.  The  Term  of  Years 213-217 

The  termor's  right  is  a  jus  in  personam 213-214 

The  Quare  ejecit  infra  terminum 214 

Statute  of  Gloucester 

Trespass — ejectio  firmae 214 

Why  it  remained  a  chattel  interest       .         .         .         .         .         .         .  214-216 

The  term  becomes  recoverable  by  ejectio  firmae 216 

Reasons  for  this 216-217 

Real  property  and  chattels  real 217 

12.  The  Modes  and  Forms  of  Conveyance 217-256 

Existing  conveyances  show  us  the  land  law  in  motion          .         .        .  218 

The  practice  of  conveyancers 218 

Compared  with  the  Responsa  Prudentum 219 

Of  less  authority  in  this  period  than  later 219 

These  conveyances  occupy  a  larger  sphere  owing  to  importance  of  the 

land  law 219 


CONTENTS  xix 

PAGE 

The  history  of  the  forms  of  conveyance 219-249 

Conveyancing  in  France  and  England 220 

(i)  Freehold  interests  in  lands  held  by  free  tenure         .         .         .  220-246 
(i)  Conveyances  which  take  effect  simply  by  the  act  of  the 

parties 221-234 

Feoffment  with  livery  of  seisin 221 

Writing  not  needed 221 

Ceremonies  which  evidence  livery        ....  221-222 

Need  to  leave  the  land  vacant 222 

Tendency  to  confuse  the  livery  with  ceremonies  which 

evidence  it 222 

Roman  law 222-223 

The  delivery  of  a  deed 223 

In  England  the  deed  is  not  allowed  to  convey    .         .  223-224 

The  Jury 224 

Conveyance  not  conceivable  without  a  real   trans- 
fer    224 

Reasons  for  the  long  life  of  this  principle  .         .         .  224 

Elimination  of  the  lord's  participation         .         .         .  225 
Deeds  become  common  to  show  the  intent  with  which 

seisin  is  delivered 225 

Writ  forms 226 

Influenced  by  ecclesiastical  ideas        ....  226 

The  modern  deed 226-227 

Deeds  poll  and  indentures 227 

Parts  of  the  deed  and  usual  clauses     ....  227-230 

Date  and  ceremonies  attending  execution  .         .         .  230-231 

The  Release 232 

The  Surrender 232 

The  Confirmation 232-233 

The  Exchange 233 

Partitions 233 

Deeds  of  Grant  and  incorporeal  things        .         .         .  233-234 

Growing  importance  of  Deeds  of  Grant      .         .         .  234 
(ii)  Conveyances  which   depend  for  their  efficacy  on   the 

machinery  of  the  court 234-246 

Conveyances  made  in  the  king's  court        .         .         .  235 

Conveyances  enrolled  there 235 

Effect  of  possession  by  order  of  the  court  .         .        .  235-236 

Fines 236-245 

Parts  of  the  fine 236-238 

The  writ 236 

The  Licentia  concordandi 237 

The  concord          .......  237 

The  note -37 

The  foot       .         .        .         .         .         .         .         .  237-238 

Varieties  of  the  fine 238 

The  two  types 238 

Sur  done  grant  et  render  combines  the  advantages 

of  both 239 

Reverence  with  which  the  fine  was  regarded     .         .  239-240 

Its  effects 240-245 

(i)  Bars  adverse  claims 240-244 

Fines  and  livery  of  seisin          ....  240-241 

Fines  become  a  substitute  for  livery  of  seisin  .  241-242 

Effect  of  merely  levying  a  fine          .         .         .  242-243 

Statute  of  non-claim 243-244 

Richard  III.  and  Henry  VII.'s  statutes    .         .  244 

(2^  Guarantee  against  forgery 245 

(3)  Attornment  of  tenants 245 

i^)  The  married  woman's  conveyance         .         .         .  245 

5)  Useful  for  settlements 245 


XX  CONTENTS 

PAGE 

Recoveries 246 

Not  a  regular  mode  of  conveyance  in  this  period        .  246 

{2)  The  Copyhold 246-248 

Surrender  and  admittance 246 

Effects  various  transactions 247 

Reasons  for  the  form 247 

Lord  becomes  merely  passive 247- 248 

(3)  The  Lease  for  Years 248-249 

Forms  of  conveyance  similar  to  freehold  interests    .         .  248-249 

Need  for  entry 249 

The  modes  in  which  landowners  can  deal  with  their  land  by  these 

conveyances 249-254 

Thirteenth  century  settlements 250 

Elaborate  conditions  in  leases 250 

Growing  fixity  in  forms 250 

Many  conveyances  needed  to  effect  a  settlement ....  250 

Feoffment  and  re-feoffment 250-251 

Instance  from  1348 251-252 

Fines  and  settlements 252 

Fines  and  the  validity  of  dispositions  thereby  made     .         .         .  252 

Control  by  the  judges 252 

Advantages  to  the  parties 253 

Comparison  with  the  law  of  pleading 253 

Effects  on  the  art  of  conveyancing 253-254 

Mediaeval  conveyancing  and  the  development  of  the  law   .         .         .  254-256 

The  conveyances  illustrate  many  branches  of  law         .         .         .  254 

Personal  and  human  side  of  legal  development    ....  255-256 

§  13.  Special  Customs 256-275 

Survivals  of  an  old  order 256 

Causes  which  made  for  their  disappearance 257 

Causes  which  made  for  the  retention  of  such  as  survived      .         .         .  257-259 

Gavelkind 259-263 

Derivation  of  the  term 259 

(i)  The  Kentish  Custumal  and  its  contents 260-262 

Contents 260-262 

Extent  of  application 262 

(2)  The  reasons  for  the  continued  existence  of  these  Kentish  cus- 
toms    262-263 

Ancient  Demesne 263-269 

Definition 263-264 

The  king  a  franchise  holder 264 

Peculiar  tenure 264-265 

Blackstone's  account 265 

The  little  writ  of  right 265-266 

The  writ  of  monstraverunt 266 

The  tenant's  services 266 

Survival  from  pre-Conquest  days 266-267 

Later  law 267 

Freeholders  or  not  ? 267-269 

31  George  IL  c.  14 .         .  269 

Disappearance  of  the  peculiar  remedies 269 

The  Borough  Customs 269-275 

Causes  of  divergence   .         . 269 

(i)  Rules  arising  from  the  fact  that  the  borough  customs  were 

codified 270-271 

Restraints  on  alienation 270-271 

Inheritance 271 

Borough  English          .         .         .     •    .         .         .         .  271 

(2)  Rules  arising  from  the  commercial  character  of  the  borough    .  271-273 

Devise 271 

Repair  and  waste 272 


CONTENTS  xxi 

PAGE 

The  lessee  for  years 272 

Wardship 272-273 

The  customs  are  influenced  by  and  influence  the  common  law       .  273 

Germs  of  later  legal  doctrines  in  some  of  the  customs   .         .         .  273-274 

Survive  only  in  isolated  rules 274 

Historical  importance 274 

Miss  Bateson's  summary 274-275 

CHAPTER  H 

Crime  and  Tort 

Characteristics  of  the  criminal  law  in  this  period 276 

The  law  encumbered  by  survivals 276 

Judicial  decisions  and  the  criminal  law 277 

Statutes  and  the  criminal  law 277 

Progress  in  the  law  of  tort 277-278 

§  I.  Self  HELP 278-287 

Self-help  and  the  law  of  crime  and  tort 278 

In  defence  of  person  or  property 278-279 

Recapture  of  goods 279-280 

The  crown's  rights  in  case  of  felony 280 

Re-entry  on  land 280 

Distraint 281-287 

Definition 281 

Development  of 281 

Its  various  forms 281 

(i^  Distraint  damage  feasant 281 

(2)  The  landlord's  right  to  distrain 281-287 

Origin  and  development 28i-:?82 

Regulation 282 

Vetitum  namii ^82-283 

Things  distrained  in  the  custody  of  the  law         .         .         .  283 

Replevin 283-284 

History  of  the  action 284 

Procedure 284 

De  proprietate  probanda 284 

Replevin  and  trespass 285 

Replevin  and  trover 285-287 

§  2.  Treason 287-293 

The  position  of  Edward  III. 's  statute 287 

(i)  Earlier  ideas  as  to  treason 287-291 

(a)  The  idea  of  treachery 287-288 

Alfred's  law 287 

Petit  treason 288 

(b)  The  idea  of  a  breach  of  the  feudal  bond 288 

Clauses  due  to  this  idea 288 

Conspiracy  to  levy  war 288 

(c)  The  idea  that  duty  to  the  king  is  higher  than  the  feudal  duty 

to  the  lord 288-289 

Loss  of  England's  continental  possessions  ....  288 

Theories  of  the  king's  lawyers 289 

(d)  The  Roman  law  of  laesa  mejestas 289 

Elasticity  of  these  ideas 289 

Treason  and  felony 289-290 

No  clear  distinction 290 

Reason 290 

Extensions  of  treason 290-291 

Objects  of  the  framers  of  Edward  III. 's  statute          .         .         .  291 

(2)  Treason  in  the  fourteenth  and  fifteenth  centuries    ....  291-293 


xxii  CONTENTS 

PAGE 

Treason  in  Richard  II.'s  reign 291-292 

Henry  IV ^ ^?2 

No  constructive  extensions  in  the  fifteenth  century              .         .  292 
Indications  of  the  form  that  these  extensions  will  take  m  later 

law 292-293 

§  3.  Benefit  of  Clergy,  and  Sanctuary  and  Abjuration         .        .  293-307 

Benefit  of  clergy  and  sanctuary 293-294 

Benefit  of  clergy 294-302 

How  it  developed 294-295 

Its  mediaeval  history 295-299 

(i)  The  thirteenth  century 295-297 

(i)  The  procedure  when  clergy  was  claimed  ....  295-296 

(ii)  How  the  church  dealt  with  its  criminals  ....  296 

(iii)  Persons  who  could  claim  the  privilege      ....  296-297 

(iv)  Cases  in  which  it  could  not  be  claimed     ....  297 

(2)  The  fourteenth  and  fifteenth  centuries 297-299 

(i)  Extension  of  the  privilege 297 

(ii)  Increased  control  of  the  royal  courts         ....  297-299 

(iii)  Exclusion  of  certain  oiTences 299 

Later  history 299-302 

Henry  VII.'s  and  VIII.'s  statutes 299-300 

Modificationof  Henry  VIII. 's  statutes 300 

(i)  Persons  who  could  claim  the  privilege     ....  300 

(ii)  Consequences  of  a  successful  claim 300-301 

(iii)  Further  exclusion  of  offences 301 

Results  of  this 301-302 

Blackstone  and  Benefit  of  Clergy 302 

Sanctuary  and  Abjuration •        .  303"307 

Nature  of  this  institution 303 

Principles  underlying  it 303 

The  principle  that  certain  places  are  sanctuaries    ....  303 

The  principle  that  the  refugee  must  abjure  the  kingdom        .         .  303-304 

What  places  were  sanctuaries 304 

Refusal  to  abjure 304-305 

Effects  of  abjuration 305 

Who  could  not  take  sanctuary 305 

Crimes  to  which  the  privilege  applied 305 

Attempts  to  restrict  it  in  the  Middle  Ages 305-306 

Changes  made  in  Henry  VIII.'s  reign 306-307 

His  legislation  repealed  in  1603 307 

Its  abolition 307 

Later  so-called  sanctuaries 307 

§  4.  Principal  and  Accessory 307-310 

The  common  law  classification 307-308 

Only  important  in  felony 308 

Reasons  for  this 308 

Accessories  at  the  fact 308 

Accessories  before  or  after  the  fact 308 

The  definition  of  principal  and  accessory      ......  309 

Application  of  the  rule  that   you  cannot  try  the  accessory  till   the. 

principal  is  convicted 309-310 

Elaboration  of  the  rules 310 

Later  changes 310 

§  5.  Offences  against  the  Person 310-318 

Homicide 310-316 

The  modern  classification 310-311 

Not  reached  in  this  period 311 

Process  of  discrimination  begun 311 

Homicide  always  an  offence .  311 


CONTENTS 


XXlll 


Very  few  exceptions 

Pardons  in  cases  of  misadventure  or  self-defence 

Misadventure 

Self  defence 

Various  degrees  of  guilt  in  felonious  homicide 

Murdrum  and  Murder 

Killing  other  than  by  malice — manslaughter 
Need  for  a  voluntary  act  directly  causing  death 

Attempts 

Suicide 


Rape 


Definitions 

Statute  oi  Westminster  II 

Mayhem 

Definition 

Ceases  to  be  a  felony 

Large  extent  of  trespass      .... 
Shows  the  need  for  extending  the  criminal  law 
its  criminal  side  sinks  into  the  background  . 
Later  statutory  misdemeanours   . 


of  detinue 


§6.  Possession  and  Ownership  of  Chattels 

Law  originates  in  the  history  of  the  personal  actions 
The  development  of  the  personal  actions     . 
(i)  Involuntary  loss  of  possession 

Glanvil  and  Bracton  .... 

(i)  The  appeals  of  robbery  and  larceny  . 
(ii)  Actions  for  res  adiratae 

Relation  between  the  two  remedies 
Nature  of  the  remedy     . 
Origin  of  sale  by  operation  of  law . 
Decay  of  these  remedies  .... 
(i)  The  appeals  and  the  action  of  Trespass 
Comparison  between  these  remedies 
(ii)  The  action  for  res  adiratae  and  the  action 
Scope  of  detinue     .... 
Detinue  against  other  than  bailees 
The  count  in  trover 
(iii)  Legal  doctrines  resulting  from  these  developments 
These  actions  delictual  in  character 
The  overlapping  of  these  remedies 
Order  of  priority  chronological 
Precedence  of  the  indictment  to  Tresp 
This  advantageous  to  the  Crown    . 
Effects  on  the  law  .... 

(a)  "Property"  ascribed  to  thieves 

(b)  Torts  which  amount  to  felonies 
{c)  The  rule  in  Baker  v.  Bolton 

(2)  Voluntary  parting  with  possession 
The  term  bailment    . 
Legal  position  of  the  bailee 
The  bailor's  ownership 
Liability  of  the  bailee 
The  law  in  Glanvil's  day 
Influence  of  Roman  ideas 
(i)  Influence  of  the  Roman  idea  of  dominium 

Bailor  gets  increased  rights    . 

Bailee's  rights  based  on  his  liability  over 
Influence  of  Roman  ideas  of  liability 

Idea  that  bailee's  absolute  liability  should  be 

These  ideas  do  not  materalize 

But  some  tendencies  in  this  direction 


(ii) 


modified 


PAGE 

3" 

312-313 
313 

313-314 
314 
314 
315 
315 
315 

315-316 
316 
316 
3i6 

316-317 
316 
317 
317 
317 
318 
318 

318-360 

318-319 
319-351 
319336 
319-320 

320 
320-322 

321 
321-322 

322 

322 
322-324 
323-324 
324-327 

324 
324-326 

327 

328-336 

328 

328 

329 

329 

329-331 

331-336 

331 

331-333 

333-336 

336-350 

336 

336 

336-337 

337-338 

338-339 

339 

339-341 

339-340 

340-341 

341-347 

341 

341 

341-342 


xxiv  CONTENTS 

PAGE 

Theory  that  he  can  sue  because  accountable  accepted     .  342-344 

Hence  no  diminution  in  his  liability        ....  344 

Is  this  historically  true  ? 344-345 

An  academic  question  in  the  Middle  Ages      .         .         .  345 
Reasons  in  favour  of  this  view         .....  345-346 
Reasons  for  basing  his  right  to  sue  on  his  possession      .  346 
A  continuous  tradition  in  its  favour          .         .         .  34^-347 
In  harmony  with  fundamental  common  law  prin- 
ciples          347 

Holmes's  view  correct 347 

Continued  extension  of  the  Bailor's  rights          ....  347-348 

Trespass 34^ 

Detinue 348-349 

(3)  The  origins  of  the  action  of  trover  and  conversion          .         .         .  35o-35i 

Why  necessary 350-35^ 

How  it  differed  from  Detinue 35 1 

Summary 351 

The  Mediaeval  theory  of  the  ownership  and  possession  of  chattels        .  351-360 

Comparison  between  land  and  chattels 351 

Differences 351-352 

But  fundamental  similarity  in  principle 352-353 

Need  for  a  delivery  to  pass  property 353-354 

The  two  exceptions 354 

The  contract  of  sale 354-357 

The  deed 357*358 

They  elucidate  the  conception  of  ownership 358 

Elucidated  mainly  by  the  increased  powers  of  owners  out  of 

possession 359 

Parallel  between  lands  and  chattels 359 

Influence  of  the  law  of  actions 359-3^0 

§  7.  Wrongs  to  Property 360-371 

Larceny 360-368 

Not  originally  a  felony 360 

Reason 360 

A  felony  from  Henry  II. 's  reign    .         , 360 

Bracton 360-361 

Subsequent  history 361 

(i)  Larceny  and  the  theory  of  possesssion 361-366 

Physical  change  of  possession 361 

Asportation 361 

Intention 361-362 

Definition  too  narrow 362 

Bailee  cannot  commit 362 

Consent  of  owner  got  by  fraud 362-363 

Taker  from  a  thief 363 

In  this  period  only  extended  in  two  ways  ....  363-366 

The  servant 363-364 

The  licencee 364-365 

Interpretation  of  these  exceptions         ....  365 

The  carrier  who  broke  bulk 366 

(2)  The  value  of  the  thing  stolen 366-367 

Grand  and  petit 367 

(3)  Things  not  the  subject  of  larceny 367-368 

Robbery 368 

Burglary 369 

Coke 369 

Britton 369 

Fitzherbert 369 

The  rule  as  to  commission  at  night  later       .....  369 

The  intent    ...........  369 

Arson 370 


CONTENTS  XXV 

PAGE 

Coke 370 

Anglo-Saxon  law ^^o 

Later  definition    , 370 

Only  form  of  injury  to  property  recognized  as  a  felony  in  this 

period 370 

The  scope  of  trespass 370-371 

18.  The  Principles  of  Liability 371-388 

The  old  principles  remembered 371 

Criminal  liability 372-375 

Grounds  of  excuse         .........  372 

Compulsion  in  time  of  war 372 

Self-defence 372 

Infancy 372 

Madness 372 

Damage  done  by  animals      ....         ....  373 

Femes  covert 373 

Act  and  intent 373 

Felony  and  civil  wrong         . 374 

Intent  the  chief  but  not  the  only  test 374 

The  intent  and  the  evidence  of  it 374-375 

Civil  liability 375-388 

Old  principles  not  mitigated  in  the  case  of  civil  liability       .         .  375 

A  man  is  liable  for  his  acts 375 

Illustrated  from  the  Y.BB 375-376 

Accident  no  defence 376 

Nor  infancy  or  lunacy 376-377 

But  some  harm  may  be  justifiably  inflicted 377 

In  the  public  interest 377 

Protection  of  private  rights 377-378 

The  act  causing  damage  is  the  plaintiff's 378 

Origin  of  doctrine  of  contributory  negligence          .        .         .  378-379 

Idea  of  proximate  consequence 379 

Negligence •         .         .  379-380 

Act  of  God •        .         .         .  380 

Convenience  amounting  to  necessity 380-381 

Effects  of  those  developments  on  old  principle  of  liability      .         .  381 

Effect  of  growth  of  actions  on  the  case 381 

Roots  of  a  doctrine  of  negligence 381-382 

Liability  of  a  master  for  the  acts  of  his  servant     ....  382-385 

The  older  rules 382 

Command  and  consent  must  be  proved 382-383 

Was  the  servant's  act  the  act  of  the  master  ?         .         .         .  383-384 

Consequence  of  the  prevailing  principle  of  liability                   .  384 

A  question  of  agency  simply 384 

Practical  results 384-385 

Extensions  of  the  strict  theory  on  grounds  of  public  policy    .  385-387 

Damage  by  fire 385 

Innkeepers,  etc 385-386 

Work  done  badly  under  a  contract 386  387 

Statutes 387 

Mercantile  custom 387 

The  later  rule 387 

The  mediaeval  principles  of  liability  and  constitutional  law    .  387-388 

9.  Lines  of  Future  Development 388-411 

Public  duties  of  communities,  officials,  and  citizens     ....  388-389 

Growing  laxity  of  the  control  of  the  common  law         ....  389-390 

Offences  against  the  machinery  of  justice    ......  390-391 

(i)  Contempts  of  the  court  and  its  process 39^-394 

Fine  and  imprisonment 391-392 

Statutory  extensions 392 


xxvi  CONTENTS 

PAGE 

Control  by  the  court  of  its  officers  and  of  jurors         .         .         .  392 

Contempts  in  the  presence  of  the  court 392-393 

No  power  to  punish  summarily 392-393 

Indictment .  393 

Enlargement  of  the  court's  power  to  punish  summarily      .  393 

Influence  of  Star  Chamber 393 

Later  part  of  the  seventeenth  century  ....  393-394 

The  King  v.  Almon 394 

(2)  Perversion  of  the  machinery  of  justice 394-400 

Prevalence  of  these  offences 394*395 

Evolution  of  certain  specific  offences 395 

Champerty 395*396 

Maintenance 396-399 

Stat.  West.  1 396 

Stat.  West.  II 397 

Ordinance  against  conspirators,  1293          ....  397 

Statute  of  conspirators .  397 

Later  statutes 397-398 

Coke's  definition  of  maintenance  and  champerty        .         .  398 

Mediaeval  distinctions 398-399 

Embracery  and  maintenance 399-400 

{3)  Off"ences  against  justice  generalized  in  later  law    ....  400-408 

Forgery  and  perjury 400-401 

Conspiracy 401-407 

Bracton  and  Britton 401 

Effect  of  Edward  I. 's  legislation 401-402 

(i)  Edward  I.'s  statutes  .......  402-404 

(ii)  The  writ  of  conspiracy  and  its  development         .         .  404-405 

Limitations  on  the  writ 405 

(iii)  The  action  on  the  case  in  the  nature  of  a  conspiracy    .  405-407 

Deceit 407-408 

Original  scope 407 

Extension  in  case  of  sales 407-408 

Defamation 408-411 

Scandalum  Magnatum 409 

Object  of  this  legislation 409 

Not  effective 409-410 

The  ecclesiastical  jurisdiction 410 

The  common  law  controls  ecclesiastical  jurisdiction       .         .         .  410-411 

Does  not  assume  jurisdiction  in  this  period 411 

CHAPTER  III 

Contract  and  Quasi-Contract 

Antiquities 412 

"  Cause  "  in  French  Law 412 

English  and  Roman  theories  of  contract 412-413 

Consideration 413 

Consideration  and  "  cause " 413 

Periods  in  the  history  of  the  law 414 

The  age  of  Glanvil  and  Bracton .         .  414-417 

Glanvil 414-415 

Bracton 415-416 

The  real  and  formal  principles  predominate 416 

The  Use 416 

The  thirteenth,  fourteenth  and  early  fifteenth  centuries      ....  417-428 

Covenant 417-420 

Why  a  sealed  writing  was  binding 417 

Sealed  writings  evidencing  a  debt 418 

Other  agreements 418-419 

The  seal  and  consideration 419-420 

Develops  idea  of  an  actionable  agreement 420 


CONTENTS  xxvii 


Debt 


PAGE 
420-424 


Debt  and  detinue 420 

Debt  and  contract 421 

On  what  contracts  debt  lies ^21 

Quid  pro  quo 421-422 

Of  what  Quid  pro  quo  may  consist 422 

Extensions  of  the  idea  of  Quid  pro  quo 422-423 

Historical  importance  of  these  extensions 423 

Inconveniences  of  the  action 423-424 

Felt  more  as  the  common  law  became  more  common   .         .         .  424 

The  idea  of  quasi-contract 424-428 

Developed  by  the  action  of  debt ,  425-426 

Developed  also  by  the  action  of  account 426-428 

Evolution  of  this  action ,  426-427 

Brings  out  idea  of  implied  and  quasi-contract         .         .         .  427-428 

Is  superseded  in  later  law 428 

The  fifteenth  and  sixteenth  centuries 428-454 

Extensions  of  delictual  liability 428 

Contract  and  tort 428-429 

Case  and  Assumpsit 429 

(i)  Original  application  of  the  action — misfeasance    ....  429-434 
Liability  in  tort  incurred  by  doing  work  badly  in  breach  of  an 

undertaking 429-430 

Illustrations 430-431 

Somerton's  Case 431-432 

Ground  of  liability  is  tort 432 

No  liability  for  non-feasance     . 433-434 

(2)  Extension  of  action  to  remedy  certain  non-feasances     .         .         .  434-441 

Views  of  Paston  and  Juyn,  J.J 434-435 

Their  principle  too  large 435 

The  test  ultimately  applied 435 

Doight's  Case 435-436 

Reasons  for  this  decision 436-437 

Views  of  Newton  and  Prisot,  C.JJ. 437*438 

Their  reasoning  fallacious 438 

Explanation  of  it 438-439 

State  of  the  law  at  the  close  of  the  Middle  Ages      .         .         .  439-440 

Further  extension — The  Doctor  and  Student    ....  440-441 

Comparison  with  Quid  pro  quo 441 

Wholly  executory  contracts  not  enforceable      ....  441 

(3)  Absorption  of  the  sphere  of  Debt,  and  extension  to  remedy  the 

breach  of  executory  contracts                 441-446 

Competition  of  the  Chancery 442 

Popularity  of  Assumpsit 442 

(i)  Absorption  of  the  sphere  of  Debt 442-444 

(ii)  Extension  to  wholly  executory  contracts     ....  444-446 

Slade^s  Case 445-446 

Special  Assumpsit  and  Indebitatus  Assumpsit        .         .  446 

(4)  Extension  of  the  action  to  implied  contracts 446-451 

Slade's  Case  and  implied  contracts 446 

Assumpsit  on  a  quantum  meruit 446-447 

The  principle  generalized 447 

Competition  with  the  Chancery 447 

Encroachment  on  spheres  of  Debt,  Account,  and  Case      .         .  447-448 

(i)  Applied  to  enforce  the  liability  of  innkeepers,  etc.      .         .  448 

(ii)  Confusion  of  the  spheres  of  tort  and  contract      .                  .  448-450 

Consideration 449-450 

(iii)  Effect  on  principles  of  liability 450 

Extension  to  quasi-contractual  obligations  later        .         .         .  450-451 

Assumpsit  becomes  the  contractual  action  of  the  common  law     .         .  451 

Application  of  the  maxim  actio  personalis,  etc 451-452 

Measure  of  damages 452 


xxviii  CONTENTS 


PAGE 

Evolution  of  an  original  theory  of  contract 453 

Why  this  was  possible 453-454 

Effect  on  the  law  as  a  whole 454 

CHAPTER  IV 

Status 

•'  Status  to  Contract  " — how  far  true 455-456 

Complexity  of  the  mediaeval  law  of  status 456 

The  point  of  view  of  mediaeval  law 457 

Gradual  growth  of  the  idea  of  a  normal  person 457 

Varieties  of  status  in  mediaeval  law 457-458 

§  I.  The  King 458-469 

Blackstone's  account  of  the  prerogative 458-459 

Periods  in  the  history  of  the  prerogative 459 

Double  aspect  of  the  prerogative  in  the  Middle  Ages  ....  460 

The  feudal  ideas 460-463 

The  king  a  feudal  lord  writ  large 460 

These  feudal  powers  more  frequently  heard  of  in  the  courts  .        .  461 

Consequences  of  this  conception 461 

Allegiance  and  homage 461-462 

The  king  is  a  lord  who  cannot  be  sued 462 

Not  the  sole  fountain  of  justice 462 

Proprietary  and  governmental  rights 462 

Descent  of  the  kingdom 462 

The  king's  property 462-463 

The  national  ideas 463-469 

The  king  the  representative  of  the  state 463 

Subject  to  law 463 

The  king  a  natural  man 463 

The  king  can  die 463-464 

The  king  can  be  under  age 464 

The  king  can  do  wrong 464-466 

No  idea  that  the  king  has  two  capacities 466 

The  theory  suspected 466-467 

Can  the  king  be  seised  to  a  Use  ? 467-468 

Henry  VII. 's  Statute  of  Treason 468 

Effect  of  the  decline  of  feudal  ideas 468-469 

§  2.  The  Incorporate  Person 469-490 

The  earlier  groups 469 

The  group  and  the  corporation 469-470 

The  idea  of  a  corporation  is  neither  primitive  nor  native      .         .         .  470 

Why  the  idea  was  received  by  the  common  lawyers   ....  470 

The  church 471 

Earlier  ideas  and  difficulties 471-474 

The  theory  of  the />^rso«a^i;^a    . 474 

The  theory  applied  to  other  groups 474 

The  borough 474-475 

Evolution  of  the  consequences  of  this  conception         .         .         .         .  475 

Creation 475-479 

Who  can  create 475-476 

Corporation  and  franchise 476 

Agreement  of  canon  and  common  law 477 

How  reconciled  with  the  existence  of  unincorporate  groups  .         .  477-478 

The  trust  concept 478 

The  point  of  view  of  public  law 478-479 

Classification 479-482 

Corporations  aggregate  and  sole 479 

Corporations  aggregate  and  the  boroughs 480 

The  church  and  the  corporation  sole 480-481 


CONTENTS  xxix 

PAGE 

King  and  corporation  sole 482 

Idea  imperfectly  worked  out 482-483 

The  nature  of  corporate  personality 482-487 

(i)  Distinct  from  its  members 482-483 

(ii)  Its  property  distinct  from  that  of  its  members      ....  483-484 

(iii)  Its  property  is  not  liable  for  the  debts  of  its  members   .         .         .  484 

Speculations  as  to  its  nature 484-485 

Difficulties  in  the  application  of  these  speculations        .         .         .  485 

(i)  Effect  of  duress  applied  to  members  of  a  corporation      .         .  483-486 

(ii)  Effect  of  death,  etc.,  of  the  head  of  a  corporation   .         .         .  486-487 

Powers,  capacities,  and  liabilities         .......  487-489 

Difficulties  arising  from  the  character  of  a  corporation         .         .  487-488 

Delictual  liability 488 

Proprietary  and  contractual  capacity — the  seal     ....  488-499 

Dissolution 489-490 

How  dissolved      ..........  489-490 

Fate  of  its  property 490 

Future  development  of  the  law  ........  490 

3.  The  Villeins 491-510 

A  composite  class 491 

Theories  borrowed  from  the  Roman  law  of  slavery      ....  491 

(i)  Do  not  fit  the  facts  of  English  life 491-493 

No  market  in  villeins 492 

Protected  by  the  custom  of  the  manor 492 

Facility  of  manumission  ........  492-493 

(2)  Do  not  fit  the  rules  of  English  law 493-496 

Public  law 493 

Public  duties 493 

Protected  and  punished  by  the  criminal  law     ....  494 

Modes  of  getting  freedom 494 

Private  law 494 

Liberty  and  the  theory  of  seisin 494-495 

Relativity  of  servitude 495 

Results  of  this  theory 495 

Privileged  position  of  the  villein  in  procedure  ....  495-496 

(3)  Do  not  fit  the  leaning  of  the  royal  lawyers  in  favour  of  liberty      .  496-500 

Legal  theories 496-497 

Procedure  in  questions  of  status 497-498 

Status  of  children .  499 

Prescription 499 

Summary 500 

Changes  in  the  social  and  agricultural  system 500 

Legislation  in  favour  of  lords 500 

Ineffective  ............  500-501 

Gradual  disappearance  of  the  status 501 

Still  survived  in  a  decadent  condition 501 

Hard  lot  of  surviving  villeins 501-502 

Why  it  survived 502 

(i)  The  status  valuable  for  purposes  of  oppression  and  chicane  .         .  502-505 

Illustrations 503-504 

(2)  The  status  might  be  valuable  to  the  lord 505-507 

The  villein  who  rose  in  life 505-506 

Payments  for  enfranchisement 506 

Elizabeth's  manumissions 506-507 

Final  extinction 507-508 

Note  on  the  terms  "  Regardant  "  and  "  In  Gross  "  as  applied  to  villeins  509-510 

4.  The  Infant 510-520 

(i)  The  age  of  majority 510-511 

The  general  rule 510 

Other  ages  for  other  purposes 510-51 1 


XXX  CONTENTS 

PAGE 

(2)  Guardianship 511-513 

No  general  rules  as  to  guardianship 511 

Various  guardians  for  various  purposes 511-512 

The  old  and  the  new  view  of  guardianship       ....  512 

Inadequate  machinery  of  the  common  law         ....  512-513 

(3)  The  capacity  of  the  infant 513-520 

Difficulty  when  there  is  no  adequate  theory  of  guardianship     .  513 

Maintenance  of  the  status  quo 513-514 

Demurrer  of  the  parol 514 

Long  life  of  this  conception 514 

Compared  with  France 514 

Modifications  of  the  theory 514 

Bracton 514-515 

Applies  chiefly  to  inherited  rights  and  real  actions    ...  515 

But  applied  to  some  personal  actions  in  this  period  .         .         .  515-516 

The  infant  has  proprietary  capacity 516 

He  is  in  some  cases  allowed  to  be  made  liable  ....  516-517 

In  some  cases  allowed  to  act 517 

But  could  disaffirm  on  majority 517 

Evasion  of  this  rule 517 

The  Guardian  ad  litem — common  recoveries     ....  517-518 

Letters  under  the  Privy  Seal 518 

Private  Acts  of  Parliament 518 

The  infant's  contracts 518-519 

Could  disaffirm  on  majority 519 

Modifications 519 

The  "  next  friend  " 519-520 

Instead  of  a  law  of  guardianship  the  capacity  of  the  infant  is 

defined 520 

§5.  The  Married  Woman 520-533 

Difficulty  of  the  problem  of  the  married  woman 520-521 

Diverse  solutions 521 

Two  systems  recognized  in  Europe 521-522 

But  the  division  not  very  clear 522 

Twelfth  and  early  thirteenth  centuries 522-524 

The  wife's  land 522-523 

The  wife's  chattels 523 

The  latter  part  of  the  thirteenth  century 524 

Community  rejected — reasons 524 

(i)  The  common  law  loses  sight  of  the  wife's  right  to  chattels 

on  her  husband's  death 524 

(2)  The  common  law  makes  the  law  of  the  nobles  the  law  for  all  524-525 

(i)  The  wife's  property 525-527 

Freehold 525-526 

Chattels 526-527 

Paraphernalia 527 

Choses  in  action 527 

The  Chattel  real 527 

(ii)  The  wife's  contracts 528-530 

No  capacity 528 

But  can  act  as  her  husband's  agent    ....  528 

Analogy  of  the  monk 528-529 

The  rule  of  agency  established 529 

Fineux,  C.J 529 

Manby  v.  Scott'  ........  529 

Agency  by  necessity 530 

(iii)  Criminal  and  civil  liability 530-532 

The  wife's  crimes 530 

Idea  of  the  husband's  coercion 530-531 

The  wife's  torts 531 

Consequences  of  her  proprietary  disabilities         .         .  531 


CONTENTS 


XXXI 


PAGE 

Ante-nuptial  torts  and  debts 531 

Post-nuptial  torts 531-532 

Distinction  between  post-nuptial  torts  and  post-nuptial 

debts 532 

Rigidity  of  the  common  law  rules 532-533 

Need  for  equitable  rules 533 

General  tendency  of  these  rules 533 


CHAPTER  V 
Succession  to  Chattels 


Peculiarities  of  this  branch  of  the  law 


§  I.  The  Last  Will 


of  a 


will 


Intestacy  in  the  Middle  Ages 
Canon  Law  and  Common  Law   . 

The  making,  revocation,  and  interpretation 
Eleventh  and  twelfth  century  wills 
The  will  with  executors 
Testamentum  and  Ultima  Voluntas 
Verbal  or  nuncupative  wills  . 
Variety  of  forms  of  written  wills  . 
Proof  of  the  nuncupative  will 
A  will  always  revocable 
Modes  of  revocation      ... 
The  interpretation  of  the  will 
The  capacity  to  make  a  will 

Lyndwood 

The  villein 

The  married  woman     . 

Common  law  and  canon  law  . 

Lyndwood      .... 

Wills  made  by  married  women 

Victory  of  the  common  law    . 

Fineux,  C.J 

The  infant 

Age  for  making  a  will  fixed  by  canon  law 
Some  clauses  found  in  the  wills  of  this  period 
Usual  clauses        .... 
Wills  and  the  chantries 
Charitable  bequests 
The  specific  legacies     . 
Legacies  of  books 
Clauses  relating  to  the  executor   . 
Importance  of  the  executor    . 
Powers  conferred  on  him 
Extensive  results  achieved  by  the  testator  through  him 
The  human  side  of  these  wills 


§  2.  Restrictions  on  Testation  and  Intestate  Succession 

The  rights  of  wife  and  children 

The  writ  de  rationabili  parte  bonorum         .... 
The  evidence  for  the  older  scheme        .... 

Wills 

Survivals 

It  disappears  in  the  South  of  England  so  far  as  it  imposes 

restrictions  on  testation 

The  reasons  for  the  disappearance  of  the  older  scheme 

Want  of  evidence 

The  meeting-place  of  lay  and  ecclesiastical  jurisdictions 
No  fixed  rules  in  either  common  or  canon  law 

VOL.   lll.—C. 


534-535 


535-550 

535-536 
536 

536-541 
536 

536-537 
537 

537-538 

538-539 

539-540 
540 
540 

540-541 

541-545 
541 
542 

542-544 

542-543 
543 
543 

543-544 
544 

544-545 
545 

545-550 
545 

545-546 
546 

546-547 
546-547 

547-548 
548 
548 

548-549 

549-550 

550-563 

550 

550 

551-554 

551-552 

552 

552-554 

554-556 

554 

554 

554-555 


xxxii  CONTENTS 

PAGE 

The  common  law  and  the  married  woman     ....  555 

Effect  on  the  old  scheme       .         .         .         .  •      .         .         .  555 

The  common  law  and  the  children 555-556 

Analogies  from  the  land  law 555 

No  court  to  superintend  the  administration  of  their  shares    .  555-556 

The  growth  of  the  modern  law 556-563 

The  administrator 556 

No  adequate  control 556 

Perkins 556-557 

The  Reformation 557 

Antagonism  of  the  common  law 558 

The  case  of  Hughes  v.  Hughes 558-559 

It  causes  a  legislative  change 559 

The  Bill  of  1668 559-560 

The  Statute  of  Distribution  . 560 

Objects  of  the  Statute 560 

The  effect  of  the  Statute        . 560-562 

Survivals  from  the  older  law 562-563 

§3.  The  Representation  of  the  Deceased 563-595 

Origins 563-572 

(i)  The  executor 563-566 

Executor  and  hceres 563 

The  •♦  Salman " 563-564 

Becomes  the  testamentary  executor 564 

Comparison  with  his  position  abroad 565 

Testamentary  executor  and  Salman 565 

Supervisors  and  coadjutors 566 

Joint  executors 566 

The  executor's  title  to  the  goods 566 

(ii)  The  administrator 566-571 

Swinburn 566 

Special  and  limited  grants 567 

His  position  before  1357 567-568 

The  ordinary 568 

The  ordinary's  delegate 568 

His  position  after  1357 568-569 

31  Edward  III.  st.  i  c.  11 569 

Survival  of  older  ideas 569 

Devolution  of  the  office     .         .        .         .         .         .        .         .  569 

Title  to  the  property 569 

Graysbrook  v.  Fox 570 

Hewson  v.  Shelley 571 

(iii)  The  Executor  de  son  tort 57^-572 

Definition 571 

Why  so-called 571 

His  position 571-572 

His  position  in  harmony  with  common  law  principles      .         .  572 

In  harmony  with  principles  of  ecclesiastical  law        .         .         •  572 

What  will  make  a  man  such  an  executor 572 

The  mode  in  which  and  the  extent  to  which  executors  and  administra- 
tors have  become  the  representatives  of  the  deceased    .        .  572-595 

Executor  and  heir 572-573 

Bracton 573 

Actions  by  and  against  executors  in  the  royal  courts     .         .         .  573-574 

New  division  of  functions 574 

Effect  on  the  Ordinary  and  the  administrator       ....  574 

(i)  Restrictions  on  liability  and  rights  of  the  heir        .         .         .  574-576 

TheY.BB 574-575 

Causes 575 

Inconveniences 575-576 

(ii)  The  extent  of  the  liability  of  the  executor      ....  576-583 


CONTENTS  xxxiii 

PAGE 

Actio  personalis  moritur  cum  persona         ....  576 

History  of  the  maxim 576-578 

Does  not  appear  in  the  Y.BB 576 

Was  Coke  its  inventor  ? 576 

Bracton 577 

Application  to  assumpsit 577*578 

To  Trespass  and  Case 578 

Why  principally  confined  to  actions  in  tort          .         .  578 
In  thirteenth  century  applied  to  nearly  all  personal 

actions 578-579 

Sherrington's  Case 579 

The  principle  in  the  Y.BB 579-580 

Supersession  of  detinue  by  trover 580-581 

Hambley  v.  Trott 581 

Assumpsit  an  alternative  remedy 581 

Phillips  V.  Homfray 582 

A  reversion  to  the  mediaeval  common  law  ....  582 

Inconvenience  of  the  law 582 

Mitigated  in  practice  by  testamentary  directions         .         .  582-583 

(iii)  The  right  of  the  executor  to  the  estate  of  the  deceased  .        .  583-585 

Chattels 583-584 

Choses  in  action 584 

Early  modification  of  '•  actio  personalis,"  etc     .        .        .  584 

Reasons 584 

13  Edward  I.  st.  i  c.  23 584 

4  Edward  III.  c.  7 584 

Extensions 584-585 

The  position  of  the  representative  at  common  law  and  in  the  Ecclesias- 
tical Courts 585-595 

(i)  At  common  law ,        .  585-591 

Point  of  view  of  the  common  law 585 

The  fundamental  principle 586 

The  sanction  of  personal  liability 586 

The  order  in  which  debts  must  be  paid 586-587 

Preference 587 

Powers  to  trade 587-588 

Debts  due  from  the  deceased  to  the  representative    .        .        .  588 

Retainer — allowed  even  to  a  sole  executor         ....  588-589 

Debts  due  from  the  representative  to  the  deceased    .        .        .  589 

Extinguishment 589 

Liability  "  de  bonis  propriis  " 589-590 

Inconveniences  of  the  common  law  rules 590-591 

Cause  of  these  inconveniences 591 

(ii)  In  the  Ecclesiastical  Courts 591-595 

Historical  position  of  these  rules 591 

The  inventory 591-592 

Executor  treated  as  a  trustee 592 

His  powers 592 

Account 593 

Illustration 593-594 

Decay  of  the  jurisdiction  of  the  ecclesiastical  courts  .        .        .  594 

Chancery 594-595 

CHAPTER  VI 

Procedure  and  Pleading 

Fundamental  changes  in  this  period 596 

Permanence  of  the  mediaeval  principles 597 

Divergence  of  criminal  and  civil  procedure 597 

§  I.  The  Criminal  Law 597-^23 

Process 597-607 


xxxiv  CONTENTS 

PAGE 

(i)  The  arrest  of  persons  not  yet  indicted 598-604 

(i)  Twelfth-fourteenth  centuries — communal  action     .        .         .  598-599 

(ii)  Fourteenth-sixteenth  centuries 599-601 

The  ordinary  citizens  and  the  official 599 

Growing  precision  in  the  law 599-600 

The  constable 600 

More  liberal  construction  of  powers  of  officials    .         .         .  601 

Obscurity  of  the  law 601 

(iii)  Late  sixteenth  century 601-604 

Increased  power  of  officials 602 

Hale 602-603 

The  constable  and  the  private  person 603-604 

(2)  The  arrest  of  persons  who  have  been  indicted        ....  604 

The  Sheriff's  powers  and  immunities 604 

(3)  Process  against  persons  evading  arrest 604-607 

Outlawry 604-605 

Verbal  accuracy  in  the  process 605 

Writs  of  error 605-606 

Treason 606 

Extension  to  trespass  in  a  modified  form 606-607 

Procedure  and  Pleading 607-623 

The  normal  procedure 607 

Other  forms  of  procedure 607 

(i)  Exceptional  forms  of  procedure 607-611 

The  criminal  caught  in  the  act 608 

The  appeal 608-609 

Arraignment  on  an  appeal  which  failed         .         .         .  6og 

Its  influence  on  the  indictment 609 

Other  exceptional  modes  of  procedure 610 

Arraignment  on  a  jury's  finding  in  a  civil  action  .         .  610-611 

Presentment  of  a  coroner's  inquest        ....  611 

(2)  The  normal  procedure  of  indictment 611-620 

The  old  conception  of  a  trial 612 

Adapted  to  the  jury 612-613 

(i)  The  differences  between  the  new  and  the  old  procedure    .  613-615 

The  jury  is  not  a  mechanical  test 613 

The  jury  do  not  decide  matters  of  law     ....  613-614 

Special  pleas 614-615 

(ii)  Resemblances  between  the  new  and  the  old  procedure      .  615-620 

Pleading  adheres  to  the  old  oral  forms    ....  615-616 

Question  submitted  to  jury  as  to  one  of  the  older  tests    .  616 

The  formality  of  the  indictment 616 

(a)  Illustrations  of  this 617-618 

(b)  Reasons  for  this 618-619 

{c)  Effects — bad  and  good 619-620 

(3)  The  peculiarities  of  English  criminal  procedure       .         .         .  620-623 

The  English  and  the  continental  development     .         .         .  620-621 

Accusatory  not  inquisitorial 621 

An  action  between  parties 622 

Due  to  survival  of  old  ideas    .        .        .        .        .        .  622 

Its  defects 623 

Future  history 623 

§2.  The  Civil  Law 623-656 

Process       623-627 

Its  characteristics — slowness  and  technicality       ....  623-624 

Real  actions 624-625 

Personal  actions 625 

Impossible  to  avoid  mistakes 625-626 

Bad  effect  of  these  rules .'  626 

Trespass  vi  et  armis 626-627 

Procedure  and  Pleading '.  627-656 


CONTENTS 


XXXV 


(i)  The  origins  and  development  of  the  new  system 
The  common  law  system  of  pleading  . 
Why  was  this  peculiar  system  developed  ? 
Old  idea  of  trial  adapted  to  jury  system 

The  varieties  of  pleas 

Bracton  and  exceptiones      .... 
The  old  rules  and  the  new  exceptiones 
Roman  rules  which  survived 
Effect  of  cessation  of  Roman  influence 
(i)  Adaptation  of  new  ideas  of  pleading  to  jury  system 
Possible  to  submit  complicated  issues  to  the  jury 
Rules  as  to  way  they  must  be  submitted    . 
Statements  must  be  material,  single,  and  certain 
No  argumentative  pleading        .... 

Negative  pregnant 

Double  pleas — Protestations      .... 

No  departures  in  pleading 

(ii)  Characteristics  of  the  older  system  of  pleading 

Oral 

Rules  adapted  to  this  system      .... 
Its  strong  point — latitude  allowed 
This  necessitated  by  absence  of  law  of  evidence 
Illustrations  of  these  points         .... 
Colour  and  demurrer  to  evidence 
(2)  The  introduction  of  written  pleadings     .... 

The  new  system 

Large  effects  of  the  change 

(i)  The  change  to  written  pleadings  .... 

Series  of  small  changes 

Old  and  new  system  intimately  related 
(a)  The  beginnings  of  the  change 

Growth  in  technical  strictness 

Coke  and  Hale 

Change  in  mode  of  recording  pleas  . 

Reeves's  summary 

Practice  of  leaving  a  note  of  the  plea  with  the  pro 

thonotary 

Disapproved  by  the  judges 

Litigants  appearing  in  person  . 

Helped  by  the  prothonotaries  or  their  clerks 

Their  clerks  employed  as  attornies  . 

First  mention  of  "  paper  "  pleadings  in  this 

nection 

Views  of  the  court 

(&)  Development  of  "  paper  "  pleadings 
Growth  of  law  of  evidence 
Takes  away  old  objections  to  these  pleadings 
Example  of  the  Chancery  and  Star  Chamber 
Growth  of  complexity — the  special  pleader 
Attornies  of  the  parties  oust  the  prothonotaries 
Modern  system  reached  . 
Survivals  of  the  older  practice 
(ii)  The  effects  of  these  changes  .... 
Effect  on  the  mechanism  of  legal  institutions 
Effect  on  the  law  report    .... 
Effect  on  the  law 


Conclusion 


clerks 


PAGE 

627-639 

627-628 

628 

628-629 

629-630 

630 

630-631 

631-632 

632-633 

633-634 

633 

633 

633 

633-634 

634 

634 

634 

634-639 

634 

635 

635 

635-636 

636-638 

638-639 

639-656 

639-640 

640 

640-653 

640 

640-641 

641-648 

641 

641-642 

642-643 

643-644 

644-645 
645 
645 

645-646 
646 

646-647 

647-648 

648-653 

648-649 

649-650 

650 

650-651 

651-653 

653 

653 

653-656 

653-654 

654-655 

655-656 

656-658 


APPENDIX 

I.  Specimens  of  original  writs  from  the  Register  . 


659-664 


(3) 
(4) 


xxxvi  CONTENTS 

PAGE 

A.  Real  Actions — 

(i)  Writs  of  Entry 659 

(2)  Writs  of  Formedon 659-660 

Mesne 660 

Customs  and  Services 660 

(5)  De  scutagio  habendo 660 

(6)  Cessavit 660 

(7)  Quod  Permittat 660 

(8)  Cui  in  Vita 661 

(9)  Ayel,  Besaiel,  and  Cosinage 661 

(10)  Dower  unde  nihil  habet 661 

(11)  Quare  impedit 661 

(12)  Little  writ  of  right 661 

(13)  Monstraverunt 661 

(14)  Quare  ejecit  infra  terminum 662 

(15)  Ejectio  firmae 662 

(16)  De  nativo  habendo 662 

(17)  De  libertate  probanda 662 

B.  Personal  Actions — 

(i)  Debt 662 

(2)  Detinue 662 

h)  Covenant 663 

(4)  Account 663 

(5)  Trespass  to  the  person 663 

(6)  Trespass  to  land  and  goods 663 

{7)  Trespass  on  the  case 663-664 

(8)  Assumpsit  (misfeasance) 664 

(9)  Assumpsit  (non-feasance) 664 

n.  A  manorial  Extent 664-666 

III.  Early  Conveyances 

(i)  The  Land  Book 666-667 

(2)  The  Laen 667 

(3)  Writ  form  of  conveyance 667 

(4)  Transition  between  Anglo-Saxon  and  Anglo-Norman  forms  of 

conveyance 667-668 

(5|  Indenture  form  of  conveyance 668-669 

(6)  Deed  poll  form  of  conveyance 669 

(7)  Fines 670 

IV.  Wills 

(i)  Tenth  century 670-671 

(2)  Fourteenth  century 671 

(3)  Fifteenth  century    ,         . 672 

V.  Statutes  Merchant  and  Staple  . 672-673 

VI.  Grants  of  Wardship  and  Marriage 674 

VII.  The  Law  Terms  and  the  Dies  in  Banco,  or  Return  Days  .         .         .  674-675 

VIII.  Some  criticisms  on  the  decision  of  the  House  of  Lords  in  the  case  of 

The  Admiralty  Commissioners  v.  S.S.  Amerika    ....  676-677 

Index 679-695 


LIST  OF  CASES 


PAGE 
Abbot  of  Hulme's  Case  .  .  484,  485 
Abbot  of  Strata  Marcella,  Case  of  .  169 
Abbots  Ripton  v.  St.  John  .  .  210 
Abram  v.  Cunningham  .  .  .  570 
Ackroyd  v.  Smith  .  .  .  .156 
Admiralty   Commissioners   v.   S.S. 

Amerika       .         .        335,  336, 676-677 
Agars  V.  Lisle  ....     286 

Alden's  Case 265 

Angus  V.  Clifford  .  .  .  -375 
Anthony  Ashley's  Case  .  .  .  601 
Applegarth  v.  Sergeantson  .  .  439 
Armstrong's  Case  ....  606 
Arnold  v.  Jefferson  ....  347 
Atkinson  and  Horsell's  Contract,  m 

94 

72 

72 


Attorney-General  v.  Duke  of  Leeds 
Attorney-General  v.  Sands 
Austerberry  v.  Corporation  of  Old- 
ham      


164 


B 


Baily  v.  Birtles  .  .  .  .581 
Bainbridge  v.  Postmaster-General  .  388 
Baker  v.  Bolton    330,  333,  334,  335,  676, 

677 
Balme  v.  Hutton  ....  323 
Banister  v.  Benjamin  .  .  .  649 
Banks  V.  Sutton  ....  196 
Barretry,  Case  of     .         .         .         .     397 

Basset's  Case 515 

Basset  v.  Corporation  of  Torington  489 
Beauchamp,  in  re  .  .  .  .531 
Beauchamp  v.  Croft        .         .  409 

Beddall  v.  Maitland        .         .         .     280 

Bernina,  the 677 

Bettisworth's  Case  ....  224 
Beverley's  Case       ....     516 

Bevil's  Case 99 

Bibithie's  Case  .  .  .  308,  310 
Birkenhead    Railway   Company  v. 

Pilcher 519 

Birt  V.  Rothwell  ....  643 
Bishop  V.  Viscountess  Montague  286,  287 
Bishop  of  Winchester  v.  Knight  .  268 
Blackamore's  Case  ....     653 


Blackborough  v.  Davis 
Blake  v.  Lanyon 
Blount's  Case 
Bourne  v.  Keane 
Bovey  v.  Castleman 
Brediman's  Case 
Brett  v.  Rigden 
Brewster  v.  Kitchell 
Britton  v.  Gradon 
Brown  V.  Hancock 
Bruistone  v.  Baker 
Buckler's  Case 
Burgess  v.  Wheate 
Burton  v.  Eyre 
Butler  and  Baker's  Case 
Butler  V.  Crouch 
Butts  V.  Penny 


Calvin's  Case  .  56,  290,  373, 

Carter  v.  Abbot  of  Malmesbury 

Carter  v.  Crawley  .       558,  560, 

Casborne  v.  Scarfe  . 

Cayle's  Case  .... 

Chamberlain  v.  Williamson 

Chawner  v.  Bowes . 

Chesterfield  v.  Harris 

Chudleigh's  Case    . 

Clapham  v.  Clapham 

Clark  v.  General  Omnibus  Co. 

Clark  v.  Thomson   . 

Clarke  v.  Clarke 

Clere  v.  Brooke       .         .      178 

Clowes  V.  Hughes  . 

Cochrane  v.  Moore . 

Coggs  V.  Bernard    .         .       341 

Colls  V.  Home  and  Colonial  Stores  . 

Colthirst  V.  Bejushin 

Combe's  Case . 

Conolly  V.  Vernon   . 

Constable's  Case 

Cooke  V.  Danvers    . 

Cooper's  Case 

Cooper,  in  the  goods  of   * 

Cooper  V.  Macdonald 

Cooper  V.  Witham  . 

Corbet's  (Miles)  Case 


PAGE 

561,  562 
.  677 

517,  518 
.  677 
.  446 
100 
.  108 
.  164 
.  630 
.  418 

.  394 
.  224 
72,  197 
.  650 
.  196 
506,  508 
.  507 


461, 


464 

•  504 
561,  562 
188,  196 

.  368 
.  584 
.  418 

•  171 
.  158 

196,  197 

.  335 

.  452 

560 

183 

286 

354 
449 
156 

253 
268 
268 

65 
268 
312 

544 
i8g 

334 
144 


182, 


345: 


XXXVlll 


LIST  OF  CASES 


PAGE 

Corbet's  Case 639 

Core's  Case  .  .  35i.  357.  4i7.  427 
Corpus  Christi  College's  Case  .     486 

Cotton's  Case 87 

Coulter's  Case  .        .         .         -572 

Cox  V.  Paxton 333 

Coxe  V.  Wirrall  .  .  .  .407 
Cranmer's  Case  .  .  .  .  33° 
Cromwel's  Case  .  .  .84,  ig6 
Cromwell's  Case  .  .  .  .409 
CuUyer  v.  Knyvett  .  .  .  .212 
Currie  v.  Misa         ....     413 


D 


Dalton  V.  FitzGerald 

Davidson  v.  lllidge 

Dawes  v.  Coveneigh 

Dean's  Case    . 

Dean  of  Exeter  v.  Trewinnard 

Debenham  v,  Mellon 

Dee  V.  Bacon  . 

Derry  v.  Peek 

Despencers,  Case  of  the 

Dockeray's  Case 

Doight's  Case 

Donald  v.  Suckling 

Dore  V.  Wilkinson  . 

Dormer's  Case 

Dowman's  Case 

Drake,  ex  pte. 

Drury's  Case  . 

Dufour  V.  Pereira    . 

Duke  of  Suffolk's  Case 

Dunraven  v.  Llewellyn 

Dyke  v.  Kendall 


.  94 

.  588 

333.  334 

•  393 

•  587 

•  530 
.  216 
.  408 
.  290 
.  358 
.  435 
.  322 
.  286 
.  119 

614,  650 

.  322 

.  65 

.  540 

.  557 

.  144 

.  197 


Eager  v.  Furnivall 

Eden  v.  Harris 

Edgcomb  v.  Dee     . 

Edwards  v.  Burre   . 

Edwards  v.  Freeman 

Edwick  V.  Hawkes 

Egles  V.  Vale  . 

Ellis  V.  Ellis    . 

Etriche  v.  An  Officer  of  the  Revenue 

Evelyn  v.  Evelyn     .... 


188 
233 
445 
443 
562 
280 
447 
570 
286 
562 


Farley  v.  Bonham  . 
Fawcet  v.  Charter  . 
Feather  v.  the  Queen 
Fermor's  Case 
Finlay  v.  Chirney    . 
Fleir  v.  Southcot     . 
Flud  V.  Rumcey 
Ford  V.  Hoskins 
Foreacre  v.  Fraunceys 
Forger  v.  Sales 


.     197 

•  452 
.  466 
.     244 

578,  579 

•  571 
.  589 
.     211 

210,  211,  501 
.        .     651 


Forster  v.  Crachroode 
Foster  v.  Bates 
Fotherbie's  Case 
Fouke  V.  Lewen 
Fouldes  V.  Willoughby 
Foxwell  V.  Van  Grutten 
Frederick  v.  Holt    . 
Freeman  v.  Bernard 


PAGE 
569 

287 
109 
567 

447 


Gale  V.  Noble 

Gate  ward's  Case     . 

George  v.  Chambers 

Gerberge,  Case  of  . 

Gibson  and  Johnson  v.  Hunter 

Goodman  v.  Mayor  of  Saltash 

Gower  v.  Capper 

Gray  v.  Briscoe 

Graysbrook  v.  Fox 

Green  v.  Goddard 

Greenwood,  in  re 

Greneley's  Case 

Grenelife  v.  W. 

Griesley's  Case 

Gylbert  v.  Fletcher 


144. 


.     268 

150,  170 

.     285 

.     291 

•  639 
.     171 

•  445 
.         .         .     163 

567.  568,  570,  57a 
.     279 

.     197 
.     128 


163, 


230 

391 
518 


H 

Hall  V.  Wright 
Hambley  v.  Trott   . 
Hamington  and  Ryder's 
Hammersley  v.  de  Biel 
Hampson  v.  Sydenham 
Harris  v.  Bervoir     . 
Hartfoot  v.  Jones     . 
Harvey  v.  Brydges . 
Hatchard  v.  Meg6  . 
Hayward  v.  Davenport 
Heming  v.  Brabason 
Heming  v.  Stoke  Poges 
Henry  Ferrers'  Case 
Hensloe's  Case 
Heskett  v.  Lee 
Hewer  v.  Bartholemew 
Hewson  v.  Shelley  . 
Heydon's  Case 
Heydon  and  Smith's  Case 
Heyron  v.  Proute    . 
Higgins  v.  Andrews 
Higgins  V.  Betts 
Higgins  V.  Butcher . 
Hills  V.  Mills  . 
Holden  v.  Smallbrooke 
Holford  V.  Piatt 
Holmes's  Case 
Holmes  v.  Seller     . 
Holt  V.  Frederick    . 
Hope  V.  Hope 
Howlet  V.  Osborne . 
Hudson  V.  Lee 
Hughes  V.  Hughes . 


Case 


579 

.  581 

.  163 

540 

■  545 

.  427 

.  286 

.  280 

.  579 

.  447 

.  87 

Golf  Club  .  280 

.  617 

.        .  561 

.         .  518 

•  427 

567.  570,  571 

.  209 

.         .  346 

.  650 

.  280 

.         .  156 

I,  332,  334.  676 

.  567 

.         .  96 

.  575 

.  370 

.        .  165 

.  562 

.  189 

.  449 

.  329 
558.  559.  594 


33 


LIST  OF  CASES 


XXXIX 


PAGE 

PAGE 

Hulbert  v.  Watts    . 

. 

.      518 

Maylard  v.  K ester  . 

444 

Hunt  V.  Burn  . 

,         . 

.      268 

Melwich  v.  Luter    . 

.     2og 

Hussey  v.  Cooke     . 

,         , 

.      400 

Mennie  v.  Blake     . 

.     287 

Hutchings  v.  Strode 

• 

.      212 

Mentney  v.  Petty    . 

Mersey  Docks  Trustees  v.  Gibbs 

561 
.     388 

I 

Merttens  v.  Hill      . 
Middlemore  v.  Goodale  . 

.     268 
163 

Inhabitants  of  Whitby  v 

.York 

207,  211 

Middleton  v.  Spicer 

72 

Isaack  v.  Clarke 

. 

.      327 

Midland  Insurance  Co.  v.  Smith 

^^^ 

Israel  v.  Etheridge . 

.      286 

Mildmay's  Case      ...        86,  117 

Mingay  v.  Hammond 

648 

J 

Mires  v.  Solebay     . 

286 

James  v.  Warren     . 
Jesson  V.  Wright     . 

• 

.      530 
.       109 

Mitchel  V.  Reynolds 
Montague  v.  Benedict    . 
Moore  v.  Browne    . 

419 

28 

Jesus  College  v.  Gibbs     . 
John  at  Hill,  Case  of       . 
John  Imperial,  Case  of    . 
John  de  Northampton,  Case  of 

.         87 

.      291 

.      291 

390,  409 

Mortimer,  Roger,  Case  of 
Moseley  v.  Fosset  . 
Mountford  v.  Catesby 
Mouse's  Case .... 
Moyle  Finch's  Case 

290 
448 
163 

377 
244 

John  St.  Albans'  Case 
Johns  V.  Rowe 

• 

.       518 

553.  561 

Johnson  v.  Clark 

• 

245.  528 

N 

K 

Nedham's  Case        .... 

589 

Kelly  V.  Metropolitan  Railway  ( 

:o. .     429 

Netheway  v.  George 

504 

Kendal  v.  Fox 

.     118 

Newport  v.  Mildmay 

518 

Kenicot  V.  Bogan    . 

.     286 

Newton  v.  Harland 

280 

Kent  V.  Seynt  John  , 

.     211 

Nichols  V.  More 

447 

Keppel  V.  Bailey     . 

.     164 

Nichols  V.  Raynberd 

445 

Ketsey's  Case 

517.  519 

North's  Case 

387 

L 

Norwood  V.  Read    .         .      445,  45 

1.452 

Lane  v.  Cotton 

.     388 

0 

Le  Mason  v.  Dixon 

578,  580 

Ocle,  William,  Case  of  . 

128 

Leicester  Town,  Case  of 

.     265 

Ognel's  Case 

561 

Levanne's  Case 

.     558 

Osborn  v.  Gillett      .         .      334,  33 

5.336 

Lewes  v.  Ridge 

.     163 

Oxenham  v.  Clapp  .... 

572 

Ley,  Viscount,  v.  Stephe 

IS 

.     409 

Lincoln,  Earl  of,  v.  Rouj 

jhton 

.     409 

P 

Lincoln  v.  Topliff    . 

.     427 

Lincoln  College's  Case 

.     230 

Pakenham's  Case    .... 

162 

Lisle  V.  Grey . 

.     109 

Palmer  v.  Allicock  .... 

558 

L.S.W.R.  V.  Gomm 

.     164 

Parker  v.  Alder       .... 

374 

Long's  Case    . 

617,  619 

Partridge  v.  Strange 

92 

Lord  V.  Thornton     . 

•     394 

Patrick  v.  Stubbs     .... 

147 

Lumley  v.  Gye 

.     677 

Peachy  v.  Duke  of  Somerset    . 
Pearne  v.  Lisle        .... 

72 
508 

M 

Pecke  V.  Redman    .... 
Pelham's  Case         .... 

445 
119 

Mackalley's  Case    . 

602, 

614,  619 

Perrin  v.  Blake        ...      10 

3.  iio 

Maleverer  v.  Spinke 

.     123 

Perry  v.  Clissold      .... 

93 

Manby  v.  Scott 

. 

529,  530 

Peters  v.  Hey  ward  .         .         . 

322 

Markal's  Case 

515.  517 

Peters  v.  Leeder     .... 

572 

Markham  v.  Cobb   . 

332, 

333.  334 

Pett's  Case 

562 

Martyn  v.  Williams 

.     165 

Phillips  V.  Homfray 

582 

Mary  Portington's  Case 

"7. 

119,  518 

Pigg  V.  Caley          .... 

508 

Maskall  and  Goldfinch's 

Contract,           | 

Piggot's  Case .         .         .         .51 

f.  567 

inre    . 

. 

.     261 

Pimb's  Case 

70 

Master  v.  Miller      . 

. 

•     333 

Pinchon's  Case        .         .      444,  452 

J.  567 

Matravers,  Case  of . 

. 

.     290 

Plessington's  Case  .... 

130 

Maundrell  v.  Maundrell . 

. 

•     197 

Plummer  v.  Whitchcroft 

387 

xl 


LIST  OF  CASES 


Portland,  Duke  of,  v.  Hill 
Postnati,  Case  of  the 
Powlter's  Case 
Prince's  Case  . 
Proud  V.  Turner      . 
Pudsey  v.  Newsam 


51 


PAGE 
268 
461 
302 

562 
163 


R 


Raleigh  v.  Goschen 

Rangeley  v.  Midland  Rly 

Ratcliff's  Case 

Ravensworth,  Adam  de, 

Ray  V.  Pung    . 

Read  and  Redman's  Case 

Reeves  v.  Capper 

Rege  Inconsulto,  Case  of 

Reniger  v.  Fogossa 

R.  V.  Almon    . 

R.  V.  Berchet  . 

R.  V.  Charnock 

R.  V.  Cooke     . 

R.  V.  Daily  Mail 

R.  V.  Davies   . 

R.  V.  Johnson . 

R.  V.  Prince    . 

R.  V.  Raynes  . 

R.  V.  Rose 

R.  V.  Rosewell 

R.  V.  Tolson    . 

R.  V.  Townley 

R.  V.  Tucker    . 

Rhodes  v.  Swithenbank 

Riches  v.  Bridges    . 

Robinson  v.  Duleep  Singh 

Roddy  V.  Fitz  Gerald 

Ross  V.  Hill    . 

Rowbotham  v,  Wilson 

Rowlet's  Case 

Rushden's  Case 

Russel  and  Prat's  Case 

Russell's  Case 

Ryle's  Case     . 


Shipwick  V.  Blanchard    . 
Shopland  v.  Ryoler 
Shrewsbury,  Earl  of,  Case  of  the 
Six  Carpenters'  Case 
Skinner  v.  Gunton  . 


.     388 
Co.  .     156 

176,  5"»  557 

Case  of  390,  409 

.     197 

.    585 

•  365 
.    460 

639,  648 
392,  394 
.  615 
.  615 
.  633 
.     393 

•  393 
.     606 

.  374 

.  567 

•  615 
.  618 

•  374 
.  368 
.  618 
.  520 

.  449 
46,  148,  149 
109 
344 
165 
119 
92 

584 
649 
618 


Slade's  Case     .       444,  445,  446,  45 

Slawney's  Case 

Smith  V.  Adams 

Smith  V.  Browne 

Smith  V.  Colgay 

Smith  V.  Cranshaw 

Smith  V.  Selwyn 

Smith  V.  Smith 

Somerton's  Case     .      431, 

Sommersett's  Case .       498, 

Southcote  V.  Bennet 

Spencer's  Case 

Spicer  v  Martin 

Stanley  v.  Powell 

Stan  tons.  Case  of  the 

Stapleton's  Case 

Stapleton  v.  Sherwood 

Stavern  v.  Bouynton 

Stephenson  v.  Hill  . 

Stokes  V.  Porter 

Stoneham  v.  Stoneham 

Stonehouse  v.  Bodvil 

Story  V.  Lord  Windsor 

Stowel  V.  Lord  Zouch  240,  241,  243,  244 


PAGE 

286 

66 

28 

447 
404 

t.  452 
558 
197 

507 

584 

401 

676 

•     515 

432,  433,  434 

499.  508,  509 

343.  344.  346 

162 

102 

382 

242 

518 

552 

649 

268 

572 

354 

422 

244 


Strangborough  and  Warner's 
Stroud's  Case . 
Stubbings  v.  Rotheram 
Swayne's  Case 
Syer's  Case     . 
Symons  v.  Darknoll 


333 


380, 


Case 


445 
392 
451 
168 
310 
448 


576.  578, 


119 
527 


Salter  v.  Butler  .  .  .  .286 
Sanchar's  Case  .  .  .  .310 
Sanders  v.  Easterby  .  .  -452 
Saunders  and  Browne's  Case  .  .  288 
Scammel  v.  Wilkinson     .         .         .     544 

Scott,  in  re 562 

Scott  V.  Tyler 586 

Searle  v.  Williams  ....  301 
Segrave's  Case  ....  290 
Serle  v.  Rosse  .  .  .  .451 
Seymor's  Case  ....  230 
Shannon  v.  Shannon  .  .  .285 
Sharington  v.  Strotton  .  .  419,  441 
Shelley's  Case  99,  107,  108,  109,  no, 
III,  134,  242 
Sherrington's  Case  .         .      579,  580 

Ship  Money,  Case  of       ,        ,        .    388 


Talbot  V.  Frere 

Taltarum's  Case 

Tasker  v.  Tasker     . 

Tennant  v.  Goldwin 

Tey'sCase      . 

Tharpe  v.  Stallward 

Thomas  v.  Quatermaine  . 

Thomas  v.  Sylvester 

Thomas  Buckler's  Case  . 

Throckmerton  v.  Tracy   . 

Thorogood  v.  Bryan 

Tilford  V.  French     . 

Tinkler  v.  Poole 

Tooker  v.  Loane 

Townsend,  Lord,  v.  Hughes 

Trenchard  v.  Hoskins 

Tufton  and  Ashley's  Case 

Twycross  v.  Grant  . 

Tyrringhams  Case  .         .       143,  1481 


Vachell  v.  Jeffreys 
Vaux  v.  Brooke 


588 
137 
544 
168 
236 

569 
429 
28 
617 
224,  650 
677 

447 
286 

558 
409 

163 
653 

584 
150 


562 
6x8 


LIST  OF  CASES 


xli 


Vavassour  v.  Chadworth . 
Vivion  V.  St.  Abyn 
Vynior's  Case . 

W 


PAGE 

594 
649 

540 


Walker  v.  Woolaston  .  .  .  567 
Walpole  V.  Orford  ....  540 
Walsh  V.  Walsh  ....  562 
Wankford  v.  Wankford  .  .  .  589 
Warbrooke  v.  Griffin  .  .  .  447 
Warrick  v.  Queen's  College,  Oxford  144 
Watt  V.  Crook  ....     562 

Weekly  v.  Wildman  .  .  .  171 
Wells  V.  Abrahams  .  .  •  333 
Weyland,  Thomas,  Case  of  .  104,  240 
Wheatley  v.  Low  .  .  .  449,  450 
Wheler  v.  Huchynden  .  .  .  436 
Wickals  V.  Johns  ....  445 
Wilkin  V.  Wilkin  ....  447 
Wilkinson  v.  Coverdale  .  .  .  449 
Williams  v.  Thomas       .  21,  22,  193 


PAGE 

Williamson  v.  Norris  .  .  .374 
Willion  V.  Berkeley  18,  68,  108,  113,  120, 
224,  253,  467 


Winkfield,  The  . 
Wiseman  v.  Cotton 
Withers  v.  Iseham  . 
Woodward  v.  Chichester 
Woodward  v.  Darcy 
Wotton  V.  Brinth  . 
Wrotesley  v.  Adams 
Wyat  Wyld's  Case 


York,  Mayor  of,  v.  Towne 
Young's  Case  .... 
Young  and  Ashburnham's  Case 
Young  V.  Englefield 


Zouch  and  Michel's  Case 


337.  345 
260 
170 
590 
589 
433 

132,  224 
.  150 


450 
602 
446 
653 


517 


LIST  OF  STATUTES 


PAGE 

PAGE 

Magna 

Carta  6,  37,  41,  46,  59,  63,  64, 

13] 

Edward  I.  St.  i  c.  16 

.    65 

192,  260, 

329,  461, 

,, 

,. 

„   „  c.  18 

•   131 

464,  505, 

535,  550 

,, 

,, 

„   „  c.  19 

.   568 

20 

Henry 

III.  c.  4 

•  147 

.. 

,, 

„   „  c.  21 

.    16 

,, 

„  c.  6 

. 

17,63 

„ 

„ 

„   „  c.  23 

.   584 

,, 

„  c.  7 

.   63 

,, 

,, 

„   „  c.  24 

II,  19 

43 

„  c.  3 

. 

26,38 

,, 

,, 

„   „  c.  25   20,  100,  152, 

52 

„  cc.  I,  2 

. 

.  282 

153 

», 

„  c.  3 

. 

61,  282 

,, 

,, 

„   „  c.  32    87,  117,  246 

,, 

„  cc.  4,  15 

. 

.  282 

,, 

„ 

„   „  c.  34 

.   316 

,, 

„  c.  16 

. 

.   61 

,. 

,, 

„   „  c.  35 

•    17 

„ 

„  c.  17. 

.   66 

.» 

„ 

„   „  c.  39 

•   392 

., 

„  C.  21  . 

. 

.  282 

,. 

,, 

„   „  c.  40 

•   515 

,, 

„  c.  25. 

. 

.  315 

„ 

,, 

„  ^^  „  c.  46 

.   147 

,, 

„  c.  29. 

. 

.   13 

,, 

,, 

„  St.  3 

•   131 

3 

Edward  I.  St.  i  c.  13 

. 

316,  397 

,, 

,, 

„  St.  4  c.  I 

.   410 

., 

„   „  c.  15 

. 

.  366 

18 

,, 

„  C.  I 

68,  80,  87, 

,, 

,, 

„    „   C.  22 

. 

.   64 

160,  176 

,, 

.1 

„   „  c.  36 

. 

.   67 

20 

,, 

„  St.  2 

.  122 

,, 

), 

„   „  c.  39 

. 

10 

21 

,, 

,,   ,, 

.  312 

», 

,, 

„  C.  21  . 

. 

•   63 

27 

,, 

„  St.  I  c.  I 

.  241 

,, 

,, 

„  c.  34 . 

.  409 

28 

,, 

„  St.  3  c.  10 

.  402 

>. 

,, 

„  c.  47. 

. 

.  515 

„ 

,, 

„    „   C.  II 

.  397,  398 

,, 

„ 

„  C.  48  . 

. 

.  519 

33 

„ 

„  St.  2 

398,  403 

4 

„ 

M  St.  3c.  5 

. 

•  297 

34 

,, 

„  St.  3 

.   87 

,, 

,. 

„   „  c.  6 

. 

.  160 

9 

Edward  II.  St.  i  c.  4 

.  410 

6 

.1 

. 

•  532 

I 

Edward  III.  St.  i  c.  11 

.  410 

,, 

., 

„  c.  2. 

. 

.  515 

.. 

„  cc.  12,  I 

3   .   84 

„ 

,» 

„  c.  3 

. 

.  193 

4 

c.  7   . 

.  584 

,, 

,, 

„  c.  4 

. 

.   16 

.. 

C.  II 

.  397 

,, 

,» 

„  c.  5 

.    63 

121,  122 

5 

c.  10   . 

•  399 

., 

,, 

„  c.  6 

. 

•  193 

14 

St.  I  c.  4 

.  314 

„ 

„ 

„  c.  7 

. 

.   19 

,, 

„  c.  9 

.  387 

,, 

,, 

„  c.  9 

. 

.  312 

.. 

St.  4  c.  2    . 

.  141 

.. 

.. 

„  c.  ri 

I 

17,  214 

246,  272 

20 

cc.  4,  5,  6 

.  398 

7 

>, 

1, 

.   87 

25 

St.  3c.  4 

.  296,  297 

12 

„ 

,, 

. 

.  419 

St.  5  c.  2 

.  288 

13 

», 

„  St.  I  c.  I 

17, 18 

,  68,  112, 

.» 

,.  c.  4 

.  608 

"3. 

187,  373. 
397.  403 

„  c.  5 
,.  c.  7 

.    .  565 
.    .  584 

„ 

.. 

„   „  c.  2 

. 

.  284 

.. 

,        „   C.  II 

.   67 

,, 

,, 

„   „  c.  3 

"7. 

121,  193, 
246,  526 

». 

„  c.  18 
„  c.  21 

20,  500 
.    .  387 

" 

,» 

„   „  c.  4 

26. 

117.  193. 
246 

27 

,    St.  2  c.  9 
„  c.  19 

.  132 

.  383,  387 

.» 

», 

,,   »,  c.  5 

25 

100,  141 

28 

c.  3   . 

.  608 

,1 

„ 

„   „  c.  6 

10 

31 

„    St.  I  c.  II 

.   565-568 

., 

,, 

„      „  c.  14 

. 

.  122 

34 

c.  8   . 

.  399 

,, 

„ 

„   „  c.  15 

. 

.  519 

»i 

„    c.  15 

.    .   84 

xl 

iii 

xliv 


LIST  OF  STATUTES 


PAGE 

PAGE 

34  Edward  III.  c.  i6 

.   243 

6  Edward  VI.  c.  11 

.         72 

38            „          c.  12 

.    399 

5  Elizabeth  c.      9 

.      649 

42            „          c.    3      . 

.     608 

8            „       c.      4 

.       301,  332 

I  Richard  II.  c.  4 

.     398 

13            1.       c-    10 

.           .      487 

»>             ».         c.  6 

.     204, 500 

18           „      c.      7 

300,  301,  332 

2             „         St.  I  c. 

5       .        .409 

27            M       c.      5 

.      650 

St.  2  c. 

3       .         .305 

M              C.        13 

.           .      482 

9            „         c.    2 

.     500 

39           .»       cc-    9,  15 

.      301 

12               „          C.  II 

.     409 

43  ,        1.       c.      8 

.     557 

15            »        c.    5 

.         .       87 

I  Jac.  I.  c.    8 

.    301 

4  Henry  IV.  c.  18 

.     392 

„      „      c.  25 

•    307 

5             »         c.    8 

.     393 

3       »      c.  13 

.     393 

c.  14 

.      236,  237 

21       „       c.    6 

.     300 

I  Henry  V.  c.  3    . 

.     400 

„       «      c.  13 

.     650 

2  Henry  VI.  c.  10 

.         .     387 

,,       »      c.  28 

.     307 

8          „          eg 

.       27 

16  Car.  I.  c.  6 

.        .         .     673 

c.  10 

.     404 

12  Car.  II.  c.  24      44,  45,  51,  53,  56,  61, 

„          „          c.  12 

.         .         .     368 

65-67.  273 

II          n          c.    5 

.     122 

22,  23  „       c.  10    . 

.       560-562 

23           „          c.    I 

.         .         .     387 

29         M       c.    3     . 

.     124,  561 

I  Edward  IV.  c.  i 

.         .     467 

I  Jac.  II.  c.  17     . 

552,  561,  562 

I  Richard  III.  c.  5 

.         .         .     468 

3  William  and  Mary  c. 

9    .         .302 

c.  7 

.     244 

4            »»            i»        ^* 

9    .         -300 

4  Henry  VII.  c.  24 

.      120,  244 

4.5        »            ..        c. 

2    .        .552 

II              »          c.     I 

.         .         .    468 

6            „            „        c. 

10    .         .     273 

12            „         c.    7 

.     301, 315 

7,  8  William  III.  c.  3 

.         .         .     615 

21            „         c.    7 

.         .     365 

II               ,1              c.  38 

•     552 

3  Henry  VIII.  c.  14 

.    406 

I  Anne  St.  2  c.    9 

.     302,  310 

4            »           c.    2 

.     299 

2,  3  m      c.    5 

.     552 

21            „           c.    2 

.         .     306 

4i  5  »      c.  16 

•         .         .     578 

c.    5 

.         .     569 

5      M      c.    3 

.      100,  234 

II            ,.          c.    7 

•     362, 365 

II       M      c.    6 

.     300 

C.  II 

.      280,  320 

II      „      c.  31 

.         .         .     363 

22            „           c.  14 

.         .         .     306 

7      „      c.  18 

.     100 

23               „             C.     I 

299.  300,  315 

12      „      St.  2  c.  6 

.         .         .     482 

II                 »               C.  10 

.         .     546 

4  George  I.  c.  11  . 

.     300 

II                 »               C.  II 

.      299,  300 

6           „        c.  23  . 

.     300 

24            „           c.    5 

.     312 

9           11        c.    7. 

.         .         .     478 

25            »           c.    3 

.     300,  302 

II           „         c.  18 . 

.    552 

26            „           c.  13 

•       70,  305 

14  George  II.  c.  20 

.     124 

27            „           c.  10 

.     196 

24          ..         c.  48 

.         .         .     673 

II            »          c.  17 

.     300 

30           II          c.  24 

.         .         .     363 

11            »           c.  19 

.         .         .     306 

31          11         c.  14 

.        .         .     269 

28               „             C.     I 

.    300 

39  George  III.  c.  85 

.         .         .     365 

31            ..           c.    I 

.       19,  127 

39,  40      „         c.  88 

.       72 

32               „             C.     I 

.     246,  273 

41            »          c.  23 

.         .         .     478 

II                 »               C.      2 

10,  93 1  508 

54           »          c.  14 

.       70 

II            »          c.    3 

.     300 

59           1.          c.  94 

.       72 

II             »           c.    9 

.     400 

7  George  IV.  c  64 

.     310 

•1                 »               C.  12 

.         .         .     306 

7. 8       „         c.  28 

.     302,  310 

II                II              C.  21 

•         .         .     673 

.1           II         c.  29 

.      363.  367 

II            ,1          c.  30 

.     650 

9           11         c.  31 

.       70 

II            »           c.  32 

.       19 

II  Geo.  IV.  and  i  Will. 

IV.  c.  47.     514 

c.  34 

.        .        .     165 

II              II                    1) 

c.  60  .       72 

II            II          c.  36 

.     120 

II              II                    11 

c.  70 .     673 

33            »           c.  20 

.       72 

I  William  IV.  c.    47 

.        .        .     576 

I  Edward  VI.  c.  12 

•      195,  300,  305 

2,3        »          c.    39 

.         .        .     674 

2,  3        „           c.  12 

.     212 

3.4        M          c.    42 

.     576,  585 

c.  33 

.     300,  307 

c.    74 

.        .        .     269 

5»6        „           c.    9 

.    300 

II           II          c.  104 

.         .     576 

c.  10 

.     300,  302 

c.  105 

.     197 

II                „              C.  II 

.      195,  690 

II           I.          c.  106 

.       70.  183 

LIST  OF  STATUTES 


xlv 


PAGE 

4,  5  William  IV.  c.    23  .         .       72 

I  Victoria  c     26   .       124,  540,  541,  545 


I,    2  „ 

3.     4  M 

4'    5  M 

8.    9  „ 

9.    10  M 

II,  12  ,, 

13.    14  M 

15.    16  .» 

18,  19  „ 

19.  20  „ 
22,  23  „ 


c.    69  . 

C.     96  . 

C.      22  . 

c.  106  . 

c.  93  . 

c.  46  . 

c.  60  . 

c.  76  . 

c.  117  . 

c.  94  . 

c.  17  . 


.  72 

.  482 

.  302 

92,  93,  160,  234 

•  335 
.  310 

•  72 
.  269 
.  482 
.  552 
.  621 


24,  25  Victoria  c.  95 
c.  100 


33.34 
36.37 
39.40 
44.45 
47.48 
50.51 
51.52 
53.54 
56.57 
60,  61 


23 
66 
18 
41 
71 
59 
42 
29 
53 
65 


PACK 

.   310 

70,  315 

70,  71 

673 

482 

72 

72 

410 

87 

561 

72 

565 


ERRATUM 
P.  284,  n.  5.     For  •'  withernamio  "  read  **  vetito  namio.' 


BOOK  III 

(1066-1485) 
THE  MEDIi^VAL  COMMON  LAW  {Continued) 


VOL.    III.  -  I 


A  HISTORY  OF  ENGLISH  LAW 

PART  II 

THE   RULES   OF   LAW 

CHAPTER  I 
THE  LAND  LAW 

I  HAVE  already  described  in  outline  the  general  features  of  the 
development  of  the  land  law  during  this  period.  Here  I 
shall  trace  in  somewhat  greater  detail  the  history  of  some  of 
its  more  important  doctrines.  All  through  this  period  it  holds  the 
first  place  both  for  political  and  legal  reasons.  My  arrangement  of 
the  subject  will  be  as  follows  :  §  i.  The  Real  Actions  ;  §  2.  Free 
Tenure,  Unfree  Tenure,  and  Chattels  Real ;  §  3.  The  Free 
Tenures  and  their  Incidents ;  §  4.  The  Power  of  Alienation ; 
§  5.  Seisin  ;  §  6.  Estates  ;  §  7.  Incorporeal  Things  ;  §  8.  Inherit- 
ance ;  §  9.  Curtesy  and  Dower;  §  10.  Unfree  Tenure  ;  §  ii.  The 
Term  of  Years;  §  12.  The  Modes  and  Forms  of  Conveyance; 
§  13.  Special  Customs. 

§  I.  The  Real  Actions 

In  the  developed  common  law  a  real  action  was  an  action  in 
which  the  specific  thing  demanded  could  be  recovered  ;  and,  as, 
in  the  great  majority  of  cases,  it  was  only  certain  interests  in  or 
incorporeal  rights  over  land,^  which  were  so  recoverable,  they 
could  be  defined  with  substantial  accuracy  by  Blackstone  as 
"  actions  whereby  the  plaintiff  .  .  .  claims  title  to  have  any  lands 
or  tenements,  rents,  commons,  or  other  hereditaments,  in  fee 
simple,  fee  tail,  or  for  term  of  life."  ^  Any  action,  even  an  action 
of  covenant,  in  which  the  land  itself  was  recovered,  was  classed  as 
a  real  action  ;  ^  while  certain  actions,  such  as  the  action  of  waste, 
in  which  both  the  land  and  damages  could  be  recovered,  were 

1  Many  incorporeal  things,  such  as  offices  or  corrodies  were,  from  the  point 
of  view  of  remedies,  and  in  some  other  respects,  treated  like  land,  vol.  ii  355-357 ; 
below  97-101,  151-153. 

2  Bl.  Comm.  iii  117-118. 

3  For  this  action  of  covenant  real,  whereon  fines  were  usually  levied,  see 
Maitland,  Collected  Papers  i  448  ;  Forms  of  Action  358. 


4  THE  LAND  LAW 

classed  as  mixed  ^  But  when  Bracton  wrote,  the  common  law 
had  not  attained  this  classification  of  actions  ;  and  the  term  real 
action  had  not  developed  its  modern  meaning.  Bracton,  as 
Maitland  points  out,^  "  knew  too  much  of  Roman  law  to  call  an 
action  '  real '  merely  because  the  successful  plaintiff  will  thereby 
obtain  possession  of  a  specific  thing.  The  novel  disseisin,  for 
example,  is  actio  personalis  ;  it  may  be  rei  persecutoria,  but  it  is 
personalis.  .  .  .  With  him  the  test  is  rather  the  nature  of  the 
mesne  than  the  nature  of  the  final  process.  If  the  mesne  process 
is  against  the  thing,  if  e.g.  the  land  is  seised  into  the  king's  hand, 
the  action  is  real,  but  if,  as  in  the  assize  of  novel  disseisin,  the 
process  is  attachment,  then  the  action  is  personal."  But  long 
before  the  close  of  the  mediaeval  period  the  term  "  real  action  "  had 
acquired  its  modern  meaning.  Bracton  himself  uses  the  term  in 
this  sense ;  ^  and,  when  at  the  close  of  the  thirteenth  century, 
English  lawyers  ceased  to  know  anything  about  the  terminology 
and  rules  of  Roman  law,^  it  was  in  this  sense  that  they  used  the 
term.^     It  is  in  this  sense  that  I  use  it  in  this  section. 

The  learning  of  the  real  actions  is  the  foundation  of  by  far 
the  greater  part  of  the  land  law  of  the  Middle  Ages.  The  lead- 
ing divisions  of  our  law  of  property  at  the  present  day — the 
divisions  into  realty  and  personalty,  and  into  land  held  by  free- 
hold tenure,  by  copyhold  tenure,  and  for  a  term  of  years — can  be 
traced  ultimately  to  the  rules  which  defined  the  scope  of  these  real 
actions.  Similarly,  as  we  may  see  from  Littleton's  book,^  many 
of  the  doctrines  of  the  land  law,  both  of  the  Middle  Ages  and  of 
the  present  day,  took  their  shape,  in  the  first  instance,  from  the 
various  real  actions  which  protected  many  and  various  rights  in  the 
land.  In  order,  therefore,  to  understand  the  mediaeval  land  law 
it  is  necessary  to  approach  it  from  the  point  of  view  of  the  real 
actions,  just  as  in  Roman  law  it  is  necessary  to  approach  the 
conceptions  of  "  dominium  ex  jure  Quritium,"  "  bonitary  owner- 
ship," and  "possession"  from  the  point  of  view  of  the  various 
remedies  which  protect  them.  Moreover,  in  approaching  the 
subject  in  this  way  we  are  placing  ourselves  at  the  point  of  view 
of  our  earliest  authorities — Glanvil  and  Bracton.  Littleton,  it  is 
true,  does  not  approach  the  subject  from  this  point  of  view ;  but 
his  treatise  was  a  treatise  primarily  upon  tenures  and  estates ; 
and,  when  he  discusses  the  principles  of  the  law,  he  assumes  a 
knowledge  of  the  real  actions.  The  doctrines  which  he  discusses 
cannot  be  understood  without  a  knowledge  of  the  law  of  real 
actions,  any  more   than   the  doctrines  discussed    by  Gaius   and 

1  Bl.  Comm.  iii  ii8. 

^Collected  Papers  i  448 ;  Forms  of  Action  370-371 ;  cf.  vol.  ii  261. 
3  f.  159b.  4  Vol.  ii  287.288. 

5  P.  and  M.  ii  568.  «  Vol.  ii  582-588. 


THE  REAL  ACTIONS  5 

Justinian  in  the  second  and  third  books  of  their  Institutes  can  be 
understood  without  some  reference  to  some  of  the  topics  discussed 
in  their  fourth  books. 

In  dealing  with  the  real  actions,  I  shall,  in  the  first  place, 
describe  those  by  means  of  which  a  person  could  assert  his  right 
to  the  seisin  of  corporeal  hereditaments  held  by  free  tenure  ;  and, 
in  the  second  place,  I  shall  enumerate  some  of  the  more  important 
of  the  other  real  actions,  or  actions  real  in  their  nature,^  which 
protected  other  rights  incident  to  land-holding.  Their  enumera- 
tion will  show  us  the  skeleton  round  which  the  largest  part  of  the 
body  of  the  mediaeval  land  law  grew  up. 

Tke  Actions  by  which  Rights  to  Corporeal  He7'editanients  of 
Free  Tenure  were  Asserted 

These  actions  may  be  divided  into  three  groups,  (i)  the  writ 
of  right  group  ;  (ii)  the  assize  of  novel  disseisin  ;  and  (iii)  the  writs 
of  entry  sur  disseisin.  This  division  represents  the  chronological 
order  of  development.  As  in  Roman  law  we  see  in  the  Legis 
Actio  Sacramenti  the  most  primitive  form  of  real  action,  and  in 
the  new  formulary  procedure  per  sponsionetn  and  per  formulam 
arbitrariam  successive  improvements  upon  the  primitive  form  ;  ^  so 
in  English  law  the  writs  of  right  are  our  oldest  form  of  real  action, 
while  the  assize  of  novel  disseisin  and  the  writs  of  entry  represent 
the  new  improvements  effected  by  royal  justice.  In  both  systems 
the  survivals  of  the  older  forms  mark  definite  periods  of  historical 
development. 

(i)  The  writ  of  right  group.^ 

There  are  three  varieties  of  the  writ  of  right — the  writ  of  right 
patent,  the  praecipe  in  capite,  and  the  little  writ  of  right.  The 
last  named  was  the  writ  by  means  of  which  the  tenant  in  ancient 
demesne  could  recover  his  land  ;  and  I  shall  speak  of  it  again 
when  I  discuss  that  tenure.* 

The  writ  of  right  patent  was  the  original  form  of  the  writ  of 
right.  "It  is,"  says  Booth,  "the  general  writ  of  right;"  "and  it 
hath  the  greatest  respect  and  the  most  assured  judgment."  ^  This 
form  of  the  writ  was  used  when  the  land  was  held  of  a  mesne 
lord.  It  was  directed  to  the  lord  of  whom  the  land  was  held,  and 
ordered  him  to  do  full  right  to  his  tenant.  If  the  lord  waived  his 
right  to  his  court,  a  special  variety  of  the  writ,  known  as  the  writ 
of  right  "  quia  dominus  remisit  curiam,"  was  directed  to  the  sheriff", 
and  proceedings  thereon  were  had  in  the  king's  court.^     It  was 

^  Booth,  Real  Actions  86,  87,  125.  ^Qirard,  Droit  Romain  327-332. 

3  For  the  forms  see  vol.  i  App.  V  a,  b,  and  c. 

4  Vol.  ii  378,  578;  below  265-266;  Booth,  Real  Actions  116,  117;  App.  Ia  (12). 

5  Booth,  op.  cit.  87,  Booth  treats  separately  the  writ  of  right  in  London  ;  but,  as 
he  says,  "  it  is  of  the  same  nature  with  the  writ  of  right  patent,  only  different  as  to 
the  place  where  the  lands  lie,  i.e.  concerning  lands  in  London,"  ibid  117. 

"Vol.  i  178. 


6  THE  LAND  LAW 

thus  essentially  a  feudal  and  not  a  royal  plea,  so  that  it  is  not 
surprising  to  find  that  such  pleas  were  not  stopped,  as  most  royal 
pleas  were  stopped,  by  the  coming  of  the  Eyre.^  The  praecipe 
in  capite  directed  to  the  sheriff  was  the  proper  writ  when  the  land 
was  held  in  chief  of  the  king.  By  it  the  sheriff  was  directed  to 
order  the  tenant  to  restore  to  the  demandant  the  land  in  question, 
and  if  he  did  not  so  restore  it,  to  summon  him  to  show  why  he 
had  not  done  so.  The  proceedings  upon  it  took  place  in  the  king's 
court.  If  it  be  true  that  originally  a  writ  of  right  was  so  called 
because  it  ordered  a  lord  to  do  full  right  to  the  demandant,  this 
form  of  the  writ  cannot  properly  be  classed  as  a  writ  of  right.  But, 
as  Maitland  has  pointed  out,^  "  when  possessory  actions  had  been 
established  in  the  king's  court  '  right '  was  contrasted  with  *  seisin,' 
and  all  writs  originating  proprietary  actions  for  land,  including 
the  praecipe  in  capite,  came  to  be  known  as  writs  of  right." 

The  praecipe  in  capite  ought  only  to  have  been  allowed  when 
the  land  in  dispute  was  held  of  the  king  in  chief  But  Henry  II., 
pursuing  the  policy  of  attracting  to  the  king's  court  jurisdiction 
over  all  cases  concerning  land  held  by  free  tenure,  had  extended 
the  scope  of  the  praecipe  in  capite  from  the  cases  where  the  land 
was  held  in  chief  to  cases  where  it  was  held  of  a  mesne  lord.  It 
was  this  extension  which  the  Barons  effectively  checked  by  the 
thirty-fourth  clause  of  Magna  Carta.^  As  the  result  of  this  clause 
a  plea  begun  by  the  writ  praecipe  in  capite  could,  even  at  the  last 
stage  of  the  action,  be  stopped  by  showing  that  the  land  was  not 
held  of  the  king.^ 

These  writs  of  right  carried  with  them  to  the  end  many  marks 
of  their  great  antiquity.  We  see  a  survival  of  the  days  when 
litigants  could  buy  procedural  advantages  of  the  crown  ^  in  the 
tender  of  the  demi  mark.  If  the  tenant  tendered  this  sum  at  the 
proper  time  (what  was  the  proper  time  was  "a  great  question  in 
law  "  ^)  he  could  defeat  the  demandant,  if  the  demandant  was  not 
seised  in  the  reign  of  the  king  alleged  in  his  count;  otherwise  the 
Grand  Assize  '^  could  find  for  the  demandant  if  his  ancestor  had 
been  seised  at  a  time  more  remote.^     We  see  a  survival  of  the  old 

^  "  The  third  cry  was  that  no  court  or  count}'  court  should  be  holden  within  the 
said  county  during  the  continuance  of  the  Eyre  save  by  reason  of  some  plea  of  land, 
and  that  by  writ  of  right  patent,  or  for  appeals  in  the  county  court,"  Eyre  of  Kent 
(S.S.)  i  7  ;  for  this  effect  of  the  coming  of  the  Eyre  see  vol.  i  266-267. 

2  Collected  Papers  ii  129  n  i ;  Forms  of  Action  318. 

^  Vol.  i  58-59  ;  see  McKechnie,  Magna  Carta  (2nd  ed.)  346-355  ;  Maitland,  Forms 
of  Action  317-318. 

4  Eyre  of  Kent  (S.S.)  ii  86-87 ;  cp.  Y.B.  20,  21  Ed.  I.  (R.S.)  72-74. 

^  Vol.  i  57-58  ;  there  are  some  illustrations  of  this  step  in  the  proceedings  in  Y.B. 
5  Ed.  II.  (S.S.)  (1312)  26,  44;  it  was  probably  because  its  object  was  to  buy  a  pro- 
cedural advantage  that  it  could  not  be  tendered  as  against  the  king,  Y.B.  20  Ed.  III. 
(R.S.)  i  416. 

^  Booth,  Real  Actions  98.  "^  For  the  Grand  Assize  see  vol.  i  327-329. 

8  Litt.  §  514,  "  Herle,  Justice,  said  to  the  Grand  Assize  after  that  they  were 
charged  upon  the  mere  right,  You  good  men,  Reynold  [the  tenant]  gave  half  a  mark 


THE  REAL  ACTIONS  7 

rule  that  a  defendant  must  deny  the  plaintiffs  case  in  every  detail 
with  minute  accuracy.^  Trial  by  battle  was  possible  till  1819.''' 
The  tenant  need  not  make  use  of  any  pleas  open  to  him  :  he 
might  submit  the  whole  case  to  the  battle  or  the  Grand  Assize — 
"  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 ;  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  proceedings  decided  the  question  of  better  right  only  as 
between  the  parties.  The  mere  judgment  bound  no  one  else. 
A  stranger  was  only  bound  if,  being  under  no  disability,  he  did 
not  claim  within  a  year  and  a  day  after  execution  of  the  judg- 
ment.* Success  in  the  writ  of  right  therefore  did  not  depend 
upon  absolute  right,  but  upon  majusjus.  We  shall  see  that  the 
tenant  could  not  defend  himself  by  setting  up  2.  jus  tertii,  through 
which  he  did  not  claim,  in  order  to  disprove  the  demandant's  title.^ 
If  the  demandant's  title  was  better  than  the  tenant's  he  would  re- 
cover. At  the  same  time  the  action  is  a  real  action,  brought  to 
assert  the  demandant's  right  to  the  land.  It  is  no  mere  delictual 
action  in  which  the  demandant  accuses  the  tenant  of  ouster  forcible 
or  otherwise.  But  in  this  fact  that  success  depends,  not  upon 
absolute  title,  but  upon  majusjus,  we  may  see  one  more  trait  of 
its  ancient  origin.  It  goes  back  to  the  time  when  the  chief  con- 
cern of  the  law  was  to  adjudicate  upon  a  dispute  between  litigants 
— when  it  had  not  as  yet  begun  to  analyse  the  conceptions  of 
ownership  and  possession.^ 

We  have  seen  that  Magna  Carta  secured  for  lords  of  tenants 
their  right  to  try  actions  begun  by  writ  of  right.''  It  thus  pre- 
served for  centuries  this  piece  of  feudal  jurisdiction.  But,  as  we 
have  seen,  it  had  come  to  be  of  little  value  to  these  lords  as  early 
as  Edward  I.'s  reign.^  In  fact,  the  procedure  was  too  primitively 
cumbersome.     This  was  recognized  in  a  register  of  writs  of  the 

to  the  king  for  the  time,  to  the  intent  that  if  you  find  that  the  ancestor  of  John  [the 
demandant]  was  not  seised  in  the  time  that  the  demandant  hath  pleaded,  you  shall 
inquire  no  further  upon  the  right;  and,  for  this,  you  shall  tell  us  whether  the  ancestor 
of  John  was  seised  in  King  Henry's  time  as  he  hath  pleaded  or  not.  ...  If  Reynold 
had  not  tendered  the  half  mark  to  inquire  of  the  time,  etc.,  then  the  Grand  Assize 
ought  to  be  charged  only  to  inquire  of  the  mere  right,  and  not  of  the  possession,  etc. ;  " 
cp.  Y.B.  20,  21  Ed.  I.  (R.S.)  292. 

^  Booth,  Real  Actions  94,  95  ;  vol.  ii  106  ;  below  629,  630-631. 

2  Vol.  i  309-310,  and  App.  XXVII.  ^  p.  and  M.  ii  63. 

*  Booth,  Real  Actions  loi,  '*  Judgment  after  the  niise  joined  binds  all  strangers 
that  make  not  their  claim  within  a  year  and  a  day  :  but  this  is  to  be  after  execution  ;  " 
Y.B.  ir,  12  Ed.  III.  (R.S.)  306. 

'  Below  90.  ^  Vol.  ii  79.  '  Above  6. 

^  Hengham,  Magna  c.  3,  cited  vol.  i  59  n.  2 ;  for  a  case  of  this  sort  which  had 
been  removed  into  the  Bench  see  Y.B.  6,  7  Ed.  II.  (S.S.)  67-68. 


8  THE  LAND  LAW 

early  years  of  Edward  I.'s  reign ;  ^  and  in  1338  the  court  admitted 
that  the  writ  of  right  involved  too  much  delay. ^  Newer  remedies 
were  invented  which  met  all  the  ordinary  needs  of  litigants ;  and 
these  newer  remedies  were  only  available  in  the  royal  courts.^  It 
was  a  rare  case  in  which  recourse  to  a  writ  of  right  was  necessary.* 
Finally  it  should  be  noted  that  the  writ  of  right,  in  common 
with  the  other  real  actions,  suffered  from  the  neglect  of  the  legis- 
lature to  pass  statutes  of  limitation.  "  Before  1237  claimants  had 
been  allowed  to  go  back  to  a  seisin  on  the  day  in  1 1 3  5  when 
Henry  I.  died  ;  then  they  were  restricted  to  the  day  in  1 1  54  when 
Henry  H.  was  crowned;  in  1275  the  boundary  was  moved  for- 
ward to  the  coronation  of  Richard  I.  in  1 189,  and  there  it  remained 
during  the  rest  of  the  middle  ages."  ^  The  fact  that  it  remained 
there  so  long  was  the  decisive  cause  of  the  length  of  legal  memory. 
Legal  memory  in  the  Middle  Ages  naturally  refused  to  go  behind 
the  period  of  limitation  fixed  for  the  writ  of  right ;  but  because 
it  went  back  to  this  date  in  the  Middle  Ages  it  continued  to  do 
so,  even  after  new  statutes  of  limitation  were  passed.*^  And  we 
shall  see  that  this  practice,  traceable  ultimately  to  the  negligence 
of  the  legislature,  has  had  a  permanent  influence  on  the  law  of 
prescription.^ 

(ii)  The  assize  of  novel  disseisin. 

I  have  already  said  something  of  the  origin  and  purpose  of  the 
assize  of  novel  disseisin.^  Unlike  the  writ  of  right,  which  bears 
upon  it  the  traces  of  a  very  primitive  antiquity,  it  was  a  new  royal 
remedy  founded  on  positive  ordinance.  It  was  invented,  not  to 
decide  which  of  two  litigants  had  a  better  right  to  the  property  in 
dispute,  but  to  protect  the  person  who  is  seised  or  possessed  of 
property;  and  not  only  will  the  person  seised  and  disseised  be 
restored  to  his  seisin,  but  the  disseisor  will  be  punished.^  "  There 
can  be  no  doubt  that  this  action  was  suggested  by  the  canonists' 
actio  spoilt,  which  itself  had  its  origin  in  the  Roman  interdict  uiide 
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."  ^^  It  was  popular 
because  it  was  both  speedy  and  effective.     It  will  be  seen  by  a 

1  H.L.R.  iii  215  ;  vol.  ii  App.  Vd  (14),  "  quia  propter  .  .  .  discrimina  brevis  de 
recto  vitandum  ab  omnibus  consiliariis  et  justiciariis  domini  Regis." 
2Y.B.  12,  13  Ed.  III.  (R.S.)98. 

3  Y.B.  2,  3  Ed.  II.  (S.S.)  202  n.  I.  4  P.  and  M.  ii  70. 

« Ibid  81.  «Bk.  ivPt.  I.  c.  2. 

7  Below  166 ;  Bk.  iv.  Ft.  II.  c.  i  §  g. 

^  Vol.  i  275,  329  and  App.  IIIa  ;  see  Maitland,  Forms  of  Action  321-323. 
9  Eyre  of  Kent  (S.S.)  iii  138.  "  P.  and  M.  ii  47. 


THE  REAL  ACTIONS  9 

reference  to  the  Appendix  ^  that  the  question  which  the  assize  was 
to  settle  was  formulated  in  the  writ  which  called  the  assize  to- 
gether ;  there  need  not  therefore  be  any  pleadinf^.  There  could 
be  no  vouching  to  warranty  and  no  essoin  ;  and  it  could  be  taken 
though  the  defendant  made  default  in  appearance.  The  assize, 
in  fact,  protected  seisin — whether  rightful  or  wrongful.  It  pro- 
tected the  man  in  possession  from  attack  ;  and  it  restored  a  person 
disseised  if  he  took  proceedings  at  once.-  But  if  the  person  dis- 
seised was  on  the  land  he  must  take  such  proceedings  within  four 
days.^  Otherwise  the  disseisor  was  seised  and  the  only  remedy 
for  the  person  disseised  was,  before  the  invention  of  the  writs  of 
entry,  the  writ  of  right. 

Such  was  the  assize  of  novel  disseisin  when  it  first  made  its 
appearance.  But  in  course  of  time  it  gradually  lost  those  char- 
acteristics of  speediness  and  effectiveness  which  made  it  so  useful 
a  remedy  in  the  twelfth  and  thirteenth  centuries.  In  the  first 
place,  the  growing  elaboration  of  the  law  was  giving  to  the  terms 
of  the  question  put  to  the  jurors  by  the  assize — Did  B  unjustly 
disseise  A  of  his  free  tenement? — special  and  technical  meanings.^ 
This  meant  that  the  number  of  incidental  questions  of  law  or  fact 
which  must  be  answered  before  the  main  question  was  reached 
was  growing,  and  that,  therefore,  a  large  scope  was  given  to  the 
new  arts  of  the  pleader;  for,  as  we  have  seen,  it  had  become 
possible  to  plead  many  "  exceptiones  ;  "  ^  and  these  "  exceptiones  " 
might  involve  the  decision  of  many  questions  of  law  by  the  court, 
or  of  fact  by  a  jury  into  which  the  assize  must  be  turned  for  this 
purpose.^  In  the  second  place,  the  maintenance  of  the  assize  as 
a  remedy  for  the  person  seised — seised  rightly  or  wrongly — re- 
quired a  large  measure  of  the  "  lawyerly  courage  "  "^  which  will 
prevent  hard  cases  from  making  bad  law.  The  judges  did  not 
always  possess  this  courage.  They  could  not  withstand  the 
temptation  of  doing  substantial  justice.      Consequently  the  scope 

;voi.  i  App.  iiiA. 

-  p.  and  M.  ii  52,  "  Besides  serving  as  '  an  interdict  for  the  recovery  of  posses- 
sion,' it  will  often  serve  as  'an  interdict  for  the  retention  of  possession.'  To  consti- 
tute an  actionable  disseisin  a  successful  ejectment  of  the  possessor  is  not  indispensable  ; 
an  unsuccessful  attempt,  a  repelled  invasion,  will  be  enough," 

^  Vol.  ii  263,  583  ;  L.Q.R.  iv  29 — if  he  is  away  from  the  land  a  further  reasonable 
time  is  allowed ;  "  the  reasonable  time  is  in  several  cases  determined  by  the  parallel 
rules  about  essoins ; "  as  to  the  four  days  Bracton,  f.  163,  says,  "  Quia  si  primo  die 
rejicere  non  potuit,  potest  tamen  in  crastino  vires  resumere,  arma  congerere  et 
auxilia  amicorum  invocare." 

^Vol.  ii  354;  L.Q.R.  iv  28;  P.  and  M.  ii  48,  "The  ideas  answering  to  the 
terms  *  injuste,'  '  disseisivit,'  '  libero  tenemento '  are  being  developed  and  defined,  and 
it  is  becoming  rather  rash  for  laymen  over  whose  heads  an  attaint  is  pending  to  swear 
that  B  has  unjustly  disseised  A  of  his  free  tenement ;  "  for  the  later  developments  of 
the  law  which  centered  round  these  conceptions  see  Bk.  iv  Pt.  II.  c.  i  §  2. 

^Vol.  ii  251  ;  below  630-632;  for  illustrative  cases  see  Y.BB.  4  Ed.  II.  (S.S.) 
126-128;  5  Ed.  II.  (S.S.)  (1312)  9-11. 

•*  Vol.  i  330-331.  ■-  P.  and  M.  ii  52. 


10  THE  LAND  LAW 

of  the  assize  was  modified.  In  Bracton's  day,  if  A  disseised  B 
and  enfeoffed  X,  B  could  proceed  against  A  and  X,  provided  that 
A  was  still  alive :  A  was  punished  for  the  disseisin ;  X  must  re- 
store the  land.  But  the  assize  did  not  lie  either  for  the  heir  of 
the  disseisee  or  against  the  heir  of  the  disseisor,  or,  if  the  disseisor 
was  dead,  against  his  feoffee  or  disseisor.^  But  in  allowing  it 
under  any  circumstances  against  the  disseisor's  feoffee  it  is  clear 
that  the  law  was  extending  the  scope  of  the  assize.  It  not  only 
protected  actual  seisin,  but  also  enabled  a  person  entitled  to  seisin 
to  recover  it.  But  its  original  scope  and  purpose  was  so  far  re- 
membered that  the  question  whether  the  disseisee  could  recover 
from  the  disseisor's  feoffee  depended  upon  the  question  whether  the 
disseisor  was  alive  or  dead.  It  is  clear  that  this  will  soon  appear 
to  be  a  very  arbitrary  limitation.  In  the  third  place,  this 
tendency  to  introduce  considerations  of  title  was  strengthened  by 
two  other  circumstances,  (i)  The  great  usefulness  of  the  assize 
induced  the  legislator  to  extend  still  further  its  capacity  to  pro- 
tect the  owner.  The  Statute  of  Westminster  II.  enabled  it  to  be 
used  by  an  owner  against  a  tenant  for  years  and  a  guardian  who 
had  aliened  in  fee,  and  also  against  their  feoffees.^  Here,  again, 
therefore,  a  plaintiff  could  recover  on  the  strength  of  his  title 
against  a  person  who  had  got  peaceable  seisin.  (2)  The  period 
of  limitation,  i.e.  the  time  within  which  the  assize  must  be  brought, 
gradually  lengthened.  Short  periods  of  limitation  were  at  first 
fixed  by  royal  ordinance.  These  periods  gradually  ceased  to  be 
fixed.^  1242  was  the  date  fixed  by  the  Statute  of  Westminster 
I.  ;^  and  1242  the  date  remained  till  the  year  1540.^  "  If,"  says 
Maitland,  "  I  be  permitted  to  demand  restitution  of  land  on  the 
ground  that  you  ejected  me  eighty  or  even  twenty  years  ago, 
whatever  we  may  call  this  complaint,  it  will  be  difficult  to  think 
of  it  as  other  than  a  demand  that  you  should  restore  to  me  what 
is  mine,  difficult  to  think  of  it  as  based  not  on  proprietary  right, 
but  on  injured  possession,  and  difficult  because  substantially  un- 
just to  prevent  your  pleading  whatever  title  you  may  have."  ^ 
Thus  we  are  not  surprised  to  find  that  the  plaintiff  in  the  assize 
gradually  relied  more  and  more  on  title.'''     The  cases  in  which 

^P.  and  M.  ii  55 — we  may  note  that  if  A  had  enfeoffed  X  during  the  time 
allowed  to  B  for  self-help,  both  A  and  X  could  be  punished  as  disseisors. 

2  13  Ed.  I.  St.  I  c.  6,  *'  In  case  also  when  any  holding  for  term  of  years  or  in 
ward  alieneth  the  same  in  fee  and  by  such  alienation  the  freehold  is  transferred  to 
the  feoffee,  the  remedy  shall  be  by  writ  of  Novel  Disseisin,  and  as  well  the  feoffor, 
as  the  feoffee  shall  be  had  for  disseisors,  so  that  during  the  life  of  any  of  them  the 
said  writ  shall  hold  l^ce."  In  Bracton's  day  these  cases  were  met  by  writs  of  entry, 
P.  and  M.  ii  54  n.  i  ;"^.B.  3,  4  Ed.  II.  (S.S.)  112,  113. 

3  P.  and  M.  ii  50,  51.  ^3  Edward  I.  st.  i  c.  39. 
^  32  Henry  VIII.  c.  2.                                       6  L.Q.R.  iv  293. 

'  See  the  cases  cited  by  Maitland  from  the  Y.BB.  of  Edward  I.  and  III.,  L.Q.R. 
iv  287-289 ;  as  he  says,  they  show  that  the  requirement  of  title  is  growing  more 


THE  REAL  ACTIONS  11 

the  true  owner  could  not  recover  by  its  means  on  the  strength  of 
his  title  became  fewer  and  fewer ;  and  those  which  remained — the 
cases  of  Descents  Cast  and  Discontinuances  ^ — soon  began  to  be 
regarded  as  anomalies. 

The  result  was  fatal  to  the  assize  of  novel  disseisin.  More 
and  more  scope  was  allowed  to  the  subtleties  of  pleaders  en- 
deavouring to  evade  the  main  question  to  be  decided  by  raising 
points  of  law  or  incidental  questions  of  fact.^  "  And  so  the  assize 
falls  into  the  ruck  of  the  real  actions."  ^ 

Before  passing  from  the  assize  of  novel  disseisin  to  the  newer 
forms  of  action  which  took  its  place,  we  must  glance  at  the  As- 
size of  Nmsance,  which  was,  in  a  manner,  supplementary  to  it.  It 
lay,  says  Fitzherbert,^  "  where  a  man  levieth  a  nuisance  to  my 
freehold  which  I  have  for  my  life,  in  tail,  or  in  fee  simple."  The 
novel  disseisin  was  directed  to  secure  an  undisturbed  possession : 
the  assize  of  nuisance  to  secure  its  free  enjoyment.^  Being  a  real 
action  it  only  lay  for  or  against  freeholders  who  had  suffered  by 
or  who  had  caused  the  nuisance.^  For  a  more  general  remedy 
against  other  persons  unconnected  with  the  land  there  was  no 
remedy  till  the  rise  of  actions  of  trespass  on  the  case.'^ 

(iii)  The  writs  of  Entry  sur  disseisin. 

These  writs  of  Entry  begin,  like  the  PrcBcipe  in  capite,  with  the 
words  "  Praecipe  quod  reddat ; "  but  they  do  not  leave  at  large,  as 
between  the  parties,  the  question  of  better  right.     They  go  on 

stringent;  cp.  the  Eyre  of  Kent  (S.S.)  ii  192-193;  iii  143-144;  Y.B,  8  Ed.  II,  (S.S.) 
2g  per  Bereford,  C.J. 

1  Vol.  ii  585-586. 

2  See  e.g.  Y.BB.  5  Ed.  II.  (S.S.)  (1312)  112-113;  20  Ed.  III.  (R.S.)  ii  128-138; 
12  Rich.  II.  114-115. 

^  L.Q.R.  iv  295,  "  The  formulation  in  the  original  writ  of  the  question  for  the 
jurors  was  a  device  only  suitable  to  an  age  whose  law  was  as  yet  but  meagre.  As 
such  terms  as  •  freehold '  and  '  disseisin  '  become  more  and  more  technical,  the 
pleader  of  one  litigant  becomes  more  and  more  anxious  that  the  question  so  formu- 
lated shall  not  be  answered,  and  the  justices  take  that  pleader's  side,  for  they  hold 
that  matter  of  law  is  for  the  court  and  only  purest  fact  for  the  laymen.  The  plead- 
ings in  assizes  become  at  least  as  complicated  and  as  colourable,  because  there  is  a 
fixed  question  for  the  jurors  which  has  to  be  evaded.  And  so  the  assizes  fall  into  the 
ruck  of  the  real  actions." 

^F.N.B.  183I-184B;  for  the  writ  see  Bracton  f.  233;  for  another  specimen  see 
Eynsham  Cart,  i  no.  504. 

^  P.  and  M.  ii  53.  A  writ  which  was  directed  to  a  somewhat  similar  object  is  the 
Curia  Claudenda;  "This  writ,"  says  Booth  (Real  Actions  242),  "  lies  for  him  who  is 
tenant  for  life,  or  has  other  estate  of  freehold  in  land,  and  he  who  has  land  next  ad- 
joining, ought  to  inclose  his  land  and  will  not,  to  the  nuisance  of  the  plaintiff." 

«  Y.B.  20  Ed.  III.  (R.S.)  ii  148-150  ;  F.N.B.  185  G. ;  Bl.  Comm.  ii  222 ;  the  scope 
of  the  assize  was  slightly  extended  by  the  celebrated  clause  24  of  the  Stat.  West.  II. 
which  empowered  the  issue  of  writs  on  the  case — indeed,  the  narrow  scope  of  the  as- 
size is  given  as  an  illustration  of  the  kind  of  evil  the  statute  was  meant  to  remedy ; 
for  the  effect  upon  substantive  law  of  this  limitation  in  the  scope  of  the  assize  see 
below  156-157. 

7  Below  28. 


12  THE  LAND  LAW 

to  suggest  that  the  tenant,  or  his  predecessors  in  title,  "  had  no 
entry  into  the  land  claimed  "  except  by  some  means  stated  in  the 
writ,  which  means  will  give  no  right  to  the  land.  The  question 
to  be  tried,  therefore,  is  limited  to  the  question.  Did  or  did  not 
the  tenant  come  to  the  possession  of  the  land  in  the  manner  sug- 
gested by  the  demandant  ? 

Though  these  writs  do  not  appear  in  Glanvil's  book,  we  can 
see  an  approach  to  them  in  the  writ  provided  for  the  debtor,  who, 
having  gag^d  his  land  to  a  creditor  for  a  term  of  years,  wishes  to 
redeem  it.  The  writ  commands  N  that  he  restore  to  R  certain 
land,  which  R  gaged  to  N  for  lOO  marks  for  a  term  which  has 
elapsed, -^nd  that  he  (N)  receive  his  money.^  As  Maitland  has 
pointed  oiit  ^  this  is  a  writ  Prcecipe  for  land,  assigning  as  a  special 
reason  why  the  tenant  should  restore,  the  fact  that  the  term  has 
expired.  "  The  change  of  a  few  words  would  turn  the  writ  now 
before  us  into  one  of  the  commonest  of  the  writs  of  entry,  the  writ 
of  entry  ad  terminum  qui  praeteriit.  Here  i&  the  first  germ  of  a 
great  institution."^  The  institution  was  not  long  in  making  its 
appearance ;  for  some  of  these  writs  are  known  in  the  first  years 
of  the  thirteenth  century/ 

The  reason  for  the  invention  of  these  writs  is  to  be  found 
primarily  in  the  cumbersome  character  of  the  writ  of  right  and  the 
limitations  of  the  original  scope  of  the  novel  disseisin.  It  was 
felt  to  be  hard  to  drive  a  man,  who  might  perhaps  have  a  recent 
and  long-continued  seisin  on  his  side,  to  prove  his  title  by  means 
of  a  writ  of  right. ^  He  was  allowed,  therefore,  to  suggest  a  par- 
ticular fault  in  the  tenant's  title,  and  to  recover  if  he  could  show 
that  the  tenant  entered  by  the  faulty  title  suggested.  This  being 
the  reason  for  the  invention  of  these  writs,  we  are  not  surprised  to 
find  that  some  of  the  earliest  of  them  are  the  "  writs  of  entry  sur 
disseisin."  At  first  perhaps  they  were  only  allowed  where  either 
disseisor  or  disseisee  had  died  pending  the  trial  of  the  assize ;  ^ 

1 "  Precipe  N  quod  juste  et  sine  dilatione  reddat  R  totam  terram,  vel  terram  illam 
in  ilia  villa,  quam  ei  invadiavit  pro  centum  marcis  ad  terminum  qui  preteriit  ut  dicit, 
et  denarios  suos  idem  recipiat,"  Glanvil  x  9. 

2  Forms  of  Action  333.  3  Ibid. 

^  Vol.  ii  193  ;  P.  and  M.  ii  64 ;  a  writ  of  entry  for  the  disseisee  against  the  heir  of 
the  disseisor  was  made  a  writ  of  course  in  1205,  Rot.  CI.  John  32,  cited  P.  and  M.  loc. 
cit.  n.  I ;  in  the  Eyre  of  Kent  (S.S.)  iii  41  Spigurnel,  J.,  puts  the  converse  case  of  a 
writ  of  entry  for  the  heir  of  the  disseisee  against  the  disseisor ;  for  specimens  see 
App.  Ia  (i). 

^  For  a  similar  development  based  on  similar  reasons  in  the  canon  law  see  P.  and 
M.  ii  66. 

6  Bracton,  f.  219b,  puts  the  following  clause  in  the  writ,  "  Et  unde  assisa  novae 
disseisina;  summonita  fuit  coram  justiciariis  nostris  ad  primam,  etc.,  et  visus  terra 
captus,  et  remansit  assisa  capienda  eo  quod  praedictus  C.  obiit  ante  captionem  illius 
assisae  ;  "  but  ibid  2i«b  he  says,  "  In  omni  casu  tenet,  sive  incepta  fuerit  in  vita  ante- 
cessoris  sive  non  et  quoad  restitutionem,  et  secundum  quosdam  tenet  quoad  poenam, 
si  assisa  fuerit  incepta,  et  quoad  restitutionem,  et  aliter  non  "—the  law  was  clearly  in 
an  uncertain  state;  and  cp.  Y.B.  3,  4  Ed.  II.  (S.S.)  112  per  Herle. 


THE  REAL  ACTIONS  13 

but  this  soon  ceased  to  be  a  condition  of  obtaining  them.  Indeed, 
the  justice  and  expediency  of  limiting  in  some  way  the  enquiry 
as  to  better  right  was  obvious ;  and,  as  we  have  seen,  the  right  to 
get  this  advantage  by  the  tender  of  the  demi  mark  was  even  ad- 
mitted in  the  writ  of  right  itself.^ 

Once  having  allowed  the  principle  of  these  writs,  two  questions 
naturally  arise,  (i)  Can  the  disseisee  or  any  of  his  heirs  sue? 
(2)  Can  the  tenant  be  sued  if  a  faulty  entry  by  any  of  his  prede- 
cessors in  title  at  any  distance  of  time  in  the  past  be  suggested  ? 
The  first  question  was  answered  in  the  affirmative  from  the  early 
years  of  the  thirteenth  century.^  The  second  cjuestion  was 
answered  in  the  negative  until  the  Statute  of  Marlborough  (1267).^ 
Before  1 267  the  demandant  might  suggest  that  the  tenant  had  no 
entry  save  per  A,  which  A  had  disseised  the  demandant  or  his  an- 
cestors {writ  of  entry  in  the  per) ;  or  he  might  suggest  that  the 
tenant  had  no  entry  sdiVQper  A  to  whom  (cut)  B  demised  the  land, 
which  B  had  disseised  '^the- demandant  or  his  ancestors  (writ  of 
entry  in  the  per  and  cut).  It  was  only  "  within  these  degrees  " 
that  a  writ  of  entry  lay.^  But  there  was  no  logical  reason  for  this 
limitation,  and  perhaps  no  legal  reason.  Probably  the  reason  was 
political.  All  these  writs  of  entry  began,  as  we  have  seen,  with 
the  words  "  Praecipe  quod  reddat ; "  and  Magna  Carta  had  con- 
ceded to  the  feudal  lords  that  the  writ  Praecipe  should  not  issue 
so  that  a  man  shall  lose  his  court. ^  It  is  true  that  the  clause  in 
the  Charter  was  probably  directed  to  the  praecipe  in  capite ;  but 
it  is  equally  clear  that  if  the  demandant  was  allowed  to  allege  a 
flaw  in  the  tenant's  title,  at  any  period  however  remote,  in  a  form 
of  action  which  could  only  be  brought  in  the  king's  court,  the 
clause  in  the  Charter  would  be  rendered  nugatory.  In  1267, 
however,  the  king  was  again  master  in  his  realm ;  and  in  that  year 
the  view  for  which  Bracton  had  argued  ^  became  law.  A  de- 
mandant was  allowed  to  bring  the  writ  of  entry  in  the  post ;  that 
is,  he  could  allege  that  the  tenant  had  no  entry  save  after  (post)  a 
disseisin  that  one  A  had  committed  against  the  demandant  or  some 
one  of  his  ancestors.''     In  other  words,  the  writ  was  allowed  to  be 

1  Above  6.  '^  P.  and  M.  ii  64,  70.  ^  52  Henry  III.  c.  29. 

,  \V.  and  M.  ii  64,  65  ;  App.  Ia  (i)  ;  Bracton  f.  2igb;  it  is  suggested  ibid  f.  318 
that  the  limit  originated  in  the  fact  that  the  entry  should  ht.  proved  by  the  testimony 
of  living  witnesses,  "  non  enim  excedit  tertium  gradum  nee  tempus  quod  excedit 
testimonium  de  visu  et  auditu;"  318b— so  the  writ  of  entry  maybe  turned  into  a 
writ  of  right  "  propter  longissimum  ingressum;  "  below  14  n.  2. 
,       °(i2i5)  c.  34;  vol.  i  58-59;  above  6. 

i  "f.  219b,  "  Et  si  hujusmodi  tenementum  ulterius  quam  ad  tertiam  personam 
iranslatum  non  fuerit,  locum  non  habebit  breve  de  ingrespu,  nisi  sit  qui  dicat  quod 
sine  mentione  de  ingressu  fieri  possit  breve  hoc  modo." 

'  52  Henry  III.  c.  29,  "  Habeat  conquerens  breve  de  recuperanda  seisina  sine 

\mencione  graduum,  ad  cujuscunque  manus  per  hujusmodi  alienaciones  res  ilia  de- 

venerit,  per  brevia  originalia  per  consilium  domini  Regis  providenda  ;  "  as  Maitland 


14  THE  LAND  LAW 

brought  "  out  of  the  degrees ; "  and  when  the  writ  was  so  brought 
there  was  no  need  to  show  how  the  land  had  passed  from  A  the 
disseisor  to  the  tenant. 

It  is  clear  that  these  writs  of  entry  occupy  a  middle  position 
between  the  summary  possessory  remedy  of  the  novel  disseisin 
and  the  lengthy  proprietary  remedy  of  the  writ  of  right.  It  is 
clear  too  that,  as  between  the  various  writs  of  entry,  some  partake 
rather  of  the  nature  of  possessory,  some  of  the  nature  of  pro- 
prietary remedies.  Bracton  is  not  quite  clear  in  his  own  mind  as 
to  their  nature.  He  sometimes  speaks  of  them  as  if  they  were 
merely  supplementary  to  the  assize  of  novel  disseisin ;  ^  but  he  ad- 
mits that  other  species  of  writs  of  entry  are  proprietary;  and  some 
of  them  have  such  close  affinity  with  the  writ  of  right  that  they 
can  be  turned  into  a  writ  of  right  by  the  pleading  of  the  parties 
to  the  action.^  This  double  aspect — partly  possessory,  partly 
proprietary — they  retained  to  the  end.^ 

The  popularity  of  these  writs  was  due  to  the  flexibility  of 
the  principle  upon  which  they  were  based.  New  writs  could 
easily  be  formed  on  this  model  to  protect  the  various  rights 
recognized  in  the  land.  Though  the  older  remedies  survived, 
and  were  sometimes  used,  their  work  and  sphere  were  for  the 
most  part  usurped  by  writs  of  entry  of  one  sort  or  another.  A 
writ  of  entry  in  the  post  could  do  most  of  the  work  of  the  writ 
of  right,  and  a  writ  of  entry  in  the  nature  of  an  assize'*  came  in 
practice  to  be  substituted  for  the  assize  of  novel  disseisin.  In 
fact,  the  various  writs  of  entry  were,  during  this  period,  made  to 
do  for  the  land  law  what  the  various  developments  of  the  writs 
of  trespass  and  deceit  were  made  to  do  for  the  law  of  tort,^ 
because,  in  both  cases,  the  flexibility  of  the  form  of  action  made 
it  capable  of  the  most  diverse  applications. 

has  said,  Forms  of  Action  336,  '*  the  Statute  of  Marlborough,  which  in  many  ways 
marks  the  end  of  feudalism,  in  effect  abolished  the  restrictions  on  the  formation  of 
writs  of  entry — but  it  only  did  this  by  adding  to  their  number ;  "  apparently  a  writ  in 
the  post  was  abateable  if  a  writ  within  the  degrees  could  have  been  brought,  Y.B.  6 
Ed.  II.  (S.S.)  i  61. 

^  f .  220,  ♦'  Tale  breve  de  ingressu  naturam  sapit  assisae  novae  disseisinae  ad  omnia 
quoad  restitutionem  licet  non  quoad  pcenam." 

2f.  318b,  "Nisi  breve  de  ingressu  per  narrationem  vertatur  in  breve  de  recto, 
propter  longissimum  ingressum,  qui  probari  non  poterit  per  visum  proprium  alicujus 
et  auditum  sed  ahenum ; "  this  doctrine  became  obsolete,  P.  and  M.  ii  74  n.  2. 
Was  this  owing  to  the  invention  of  writs  of  entry  in  the  post  ?  The  entry  in  such  a 
writ  could  not  be  proved  per  visum  et  auditum  proprium. 

3Y.BB.  33-35  Ed.  I.  (R.S)  421;  3  Ed.  II.  (S.S.)  160,  "I  wish  all  of  ycu  to 
understand  that  no  writ  of  entry  is  a  writ  of  right,  but  it  lies  in  the  possession  coloured 
by  right ;  for  that  only  is  a  writ  of  right  which  takes  issue  in  the  right,"  per  Bereford, 
C.J. 

4  F.N.B.  igiC-ig2F ;  Booth,  Real  Actions  174  seqq.  It  is  sometimes  called  a 
writ  of  entry  in  the  Quibus,  and  as  Booth  says,  172,  **  differs  not  from  an  assize  of 
novel  disseisin  in  the  cause  of  action,  but  in  the  proceedings  and  process ;  "  for  a 
case  in  which  such  a  writ  was  brought  see  Y.B.  12  Rich.  II.  172. 

"*  Vol.  ii  455-456;  below  350-351,  429-451. 


i 


THE  REAL  ACTIONS  15 


The  other  Real  Actions 


We  must  now  consider  the  other  real  actions  which  protected 
the  diverse  interests  which  various  persons  might  have  in  the 
land.  It  would  be  impossible  to  describe  them  all  in  detail ;  but, 
as  I  have  said,  their  enumeration  will  serve  as  a  useful  guide  to 
the  mediaeval  land  law  regarded  from  the  mediaeval  point  of 
view.  In  thus  enumerating  them  I  shall  divide  them  into  the 
following  groups : — 

(i)  The  actions  which  lie  as  between  lord  and  tenant, 
(ii)  The  actions  which  lie  to  protect  the  lord  or  tenant  of 

particular  estates  in  the  land. 
(iii)  The  actions  which  lie  to  protect  incorporeal  rights, 
(iv)  The  action  which  lies  to  assert  the  right  to  a  villein, 
(v)  The  actions  which  arise  out  of  certain  family  relation- 
ships, 
(vi)  The  actions  which  arise  out  of  the  incapacity  of  persons. 
(vii)  The  actions  concerning  ecclesiastical  property, 
(viii)  The  actions  which  deal  with  abuse  of  the  process  of  the 
court. 

In  the  various  forms  of  action  falling  within  these  groups 
we  can  see  the  various  stages  in  the  development  of  the  real 
actions.  There  are  the  actions  which  fall  within  the  writ  of  right 
group,  e.g.  the  ne  injuste  vexes,  and  the  writ  of  right  of  dower. 
There  are  actions  which  belong  to  the  possessory  assize  group, 
e.g.  the  assize  of  mort  d'ancestor,  and  darrein  presentment. 
The  most  numerous  class  of  actions  are  those  begun  by  writs  of 
entry,  in  the  per^  cut,  ^.ndpost,  devised  to  protect  the  many  new 
relations  which  gradually  came  into  being  with  the  growing 
elaboration  of  the  law. 

(i)  The  actions  which  lie  as  between  lord  and  tenant. 

Ne  injuste  vexes}  This  writ  lay  where  the  tenant  and  his 
ancestors  held  the  land  of  the  lord  and  his  ancestors  by  certain 
services,  and  the  lord,  by  the  hand  of  his  tenant,  got  seisin  of 
more  or  greater  services  and  distrained  for  them  ;  in  such  a 
case  the  tenant  by  this  writ  could  assert  his  freedom  from  such 
services. 

De  consuetudinibus  et  serviciis}  This  writ  lay  for  the  lord 
against  the  tenant  who  withheld  his  due  services.     It  is  a  writ 

^  Booth,  Real  Actions  126,  127 ;  cp.  Y.B.  3,  4  Ed.  II.  (S.S.)  ^^y  Scrope,  J.,  for 
various  alternative  remedies ;  for  the  cases  in  which  the  lord  might  use  an  assize  of 
novel  disseisin,  or  mort  d'ancestor,  or  a  writ  of  right  sur  disclaimer  see  Bl.  Comm. 
iii  232,  233. 

2  Booth,  Real  Actions  132;  cp.  Y.BB.  i,  2  Ed.  II.  (S.S.)  116;  11,  12  Ed.  III. 
(R.S.)  ig8 ;  App.  Ia  (4). 


16  THE  LAND  LAW 

of  right  in  its  nature — in  the  debet  and  solet  when  the  lord  counts 
of  his  own  seisin ;  in  the  debet  when  he  counts  of  the  seisin  of  his 
ancestor.  Being  a  writ  of  right  in  its  nature,  the  procedure  upon 
it  was  slow  and  cumbrous.  The  lord,  if  successful,  established 
his  title  to  the  services,  and  could  distrain  for  them;  but  he 
could  not  regain  possession  of  the  land.  If  there  was  nothing  on 
the  land  to  be  distrained  it  was  a  remedy  of  small  value. ^  In 
fact,  after  the  decay  of  the  feudal  courts,  the  lord  had  no  effective 
remedy  against  a  tenant  who  left  his  services  unperformed  and 
his  land  uncultivated.  In  such  a  case  a  remedy  was  required  by 
which  the  lord  could  regain  possession  of  the  land  itself.^  Such 
a  remedy  he  obtained  by  means  of  the  writ  of  Cessavit. 

Cessavit}  This  writ  was  introduced  by  the  Statutes  of 
Gloucester  (1278)  and  Westminster  II.  (1285)^ in  order  to  enable 
the  lord  to  get  the  land  itself  in  default  of  the  due  performance 
of  the  services.  It  was  derived,  through  the  canon  law,  from 
Justinian's  legislation.^  But  Miss  Bateson  has  shown  that  the 
action  differs  from  the  Roman  model,  and  resembles  the  rules 
laid  down  in  some  of  the  borough  customs  in  its  requirements 
(i)  that  the  land  must  have  lain  fresh  for  two  years;  (2)  that 
there  must  be  no  distrainable  goods  on  the  land ;  and  (3)  that 
the  landlord  must  have  got  judgment^  According  to  Roman 
law  it  was  only  necessary  that  the  rent  should  be  in  arrear  for 
the  required  period.  Probably  here  as  in  other  cases  a  Roman 
idea  has  been  naturalized  and  adapted  to  native  requirements. 
The  writ  could  be  brought  in  the  per^  cui^  or  post. 

Mesne?  This  writ  lay  where  there  was  lord,  mesne,  and  tenant, 
and  the  mesne  did  not  perform  his  services,  so  that  chattels  on 
the  land  held  by  the  tenant  were  distrained.  The  tenant  re- 
covered damages  from  the  mesne,  and  got  judgment  that  the 
mesne  acquit  him  by  performing  his  services. 

Warrantia  Car  tee}  This  writ  lay  against  the  feoffor  or  his 
heirs  where  a  man  was  enfeoffed  by  deed  with  warranty,  and  was 
impleaded  in  an  action  (e.g.  an  assize)  in  which  he  could  not 
vouch  to  warranty.  There  were  also  other  remedies  for  breach 
of  warranty  of  which  I  shall  speak  later. ^ 

Escheat}^  The  lord  had  this  writ  to  recover  the  land  when 
his  tenant  in  fee  simple  died  without  heirs. 

1  P.  and  M.  i  333.  2  ibid  i  335. 

3  Booth,  Real  Actions  133;  Y.B.  11,  12  Ed.  III.  (R.S.)  196;  App.  Ia  (6). 
^6  Edward  I.  c.  4 ;  13  Edward  I.  st.  i  c.  21. 
^  P.  and  M.  i  334  n.  2 ;  Bl.  Comm.  iii  334. 
fi  Borough  Customs  (S.S.)  ii  Ixiv, 

7  Booth,  Real  Actions  136;  for  instances  see  Y.BB.  3,  4  Ed.  II.  (S.S.)  130; 
4  Ed.  II.  (S.S.)  71 ;  App.  lA  (3). 

^  Booth,  Real  Actions  240.  '  Below  159-161. 

1°  Booth,  Real  Actions,  135. 


THE  REAL  ACTIONS  17 

De  Recto  CustodicB  terrce  et  heredis}  This  was  a  writ  of  right 
by  which  the  lord  could  assert  his  right  to  the  wardship  of  the 
land  and  of  the  body  of  the  infant  heir. 

Of  the  remedies  for  waste  I  shall  speak  later  ;  ^  and  with  the 
action  of  replevin  which  arose  out  of  the  lord's  right  of  distraint  I 
shall  deal  with  when  I  come  to  the  subject  of  self-help.^ 

(ii)  The  actions  which  lie  to  protect  the  lord  or  tenant  of 
particular  estates  in  the  land. 

Estates  tail. 

The  writ  of  Formedon  {fonna  doni\  though  originally  regarded 
as  being  possessory  in  character,*  came  to  be  regarded  as  so 
distinctly  proprietary  that  it  was  called  the  writ  of  right  for  the 
tenant  in  tail.^  In  the  developed  common  law  there  were  three 
varieties  of  the  writ.  Formedon  in  reverter.  This  variety  of  the 
writ  could  be  brought  by  the  donor  or  his  heirs  when  the  issue  of 
the  donee  in  tail  failed.  Formedon  in  descender.  This  variety  of 
the  writ  could  be  brought  by  the  issue  in  tail  against  the  alienee 
or  disseisor  of  the  donee  in  tail  after  the  death  of  such  donee. 
Formedon  in  remainder.  If  the  tenant  in  tail  alienated,  or  was 
disseised,  and  died  without  issue,  the  remainder-man  had  this  writ 
to  recover  the  land.^  The  question  whether  some  or  all  of  these 
writs  were  known  to  the  common  law  before  the  passing  of  the 
Statute  de  Donis  Conditionalibus  (1285),''  or  whether,  like  the 
estate  tail,  they  were  created  by  this  statute,  has  been  the  subject 
of  some  controversy.  It  seems  to  me  that  this  controversy  can 
only  be  settled  by  considering  the  object  with  which  the  Statute 
de  Donis  was  passed.  We  shall  see  ^  that  before  this  statute  a 
gift  to  a  man  and  the  heirs  of  his  body  created  a  fee  simple  con- 
ditional. It  was  a  gift  to  a  man  and  his  heirs  conditionally  upon 
the  birth  of  issue.  Hence  if  no  issue  was  born,  the  condition  was 
not  fulfilled,  and  the  donor  could  recover  the  land  ;  but,  if  issue 
was  born,  the  condition  was  fulfilled,  and  the  donee  got  in  substance 
a  fee  simple,  which  he  could  alienate  as  he  pleased.  If,  however, 
he  did  not  alienate,  and  died  without  issue,  the  estate  reverted, 

^  Booth,  Real  Actions  132  ;  for  the  writs  of  ejectment  and  ravishment  of  ward  (20 
Henry  III.  c.  6;  13  Edward  I.  st.  i  c.  35)  see  F.N.B.  1391-1400  ;  Reeves,  H.E.L. 
ii  117,  118;  Y.BB.  33-35  Ed.  I  (R.S.)  174;  13,  14  Ed.  III.  (R.S.)  146;  17,  18 
Ed.  III.  (R.S.)  392  ;  they  are  writs  in  the  nature  of  trespass,  and  they  are  an  early, 
probably  the  earliest,  instance  in  which  such  a  writ  was  employed  to  protect  rights 
for  which  there  was  a  real  action,  below  27 ;  it  was  the  easier  to  protect  these 
rights  in  this  way  because  they  were  regarded  as  chattels,  below  215. 

2Below  121-123.  3  Below  283-287. 

4Y.B.  I,  2  Ed.  II.  (S.S.)  159. 

5  Booth,  Real  Actions  139  ;  App.  Ia  {2).  ^  Co.  Litt.  326b. 

'  13  Edward  I.  c.  i,  Stat.  Westminster  II. 

8  Below  111-114  ;  cf.  vol.  ii  349-350. 

VOL.   in.— 2 


18  THE  LAND  LAW 

just  as  if  no  issue  had  been  born.  This  being  the  case,  it  is  not 
surprising  to  find  that  there  is  a  practically  uni\'ersal  consensus  of 
opinion  that  the  first  form  of  the  writ — Xh&fonnedon  in  reverter 
existed  at  common  law.^  On  the  other  hand,  it  seems  to  me  that 
the  weight  of  the  evidence  is  in  favour  of  the  view  that  the 
formedon  in  descender  was  introduced  by  the  statute.  Before 
the  statute  the  issue  had  no  remedy  if  his  ancestor  alienated ; 
and  one  of  the  objects  of  the  statute  was  to  give  him  a  remedy  in 
such  a  case.^  It  is  true  that  if  his  ancestor  was  disseised  he  had 
a  remedy ;  but  it  was  probably  not  by  writ  of  formedon,  but  by 
assize  of  mort  d'ancestor.^  This,  it  seems  to  me,  is  the  view  of 
the  law  accepted  in  the  Year  Books  ;  and,  having  regard  to  the 
words  and  scope  of  the  statute,  the  view  which  is  a  priori  the 
most  probable.  The  writ  of  formedon  in  remainder  is  not  given 
by  the  statute ;  nor  is  there  any  positive  evidence  that  it  existed 
at  common  law.  Estates  in  remainder  were  certainly  limited  to 
take  effect  after  conditional  fees  ;  ^  but  as  yet  we  have  no  evidence 
that  any  writ  was  devised  for  their  protection.^  However  that 
may  be,  it  is  quite  clear  that  such  a  writ  was  introduced  shortly 
after  the  passing  of  the  Statute  de  Donis.^ 

^ "  Breve  per  quod  donator  habet  recuperare  suum,  deficiente  exitu  satis  est  in 
usu  in  cancellaria,"  13  Edward  I.  c.  i  ;  cf.  Y.BB.  i,  2  Ed.  II.  (S.S.)  3  ;  3,  4  Ed.  II. 
(S.S.)  41 ;  8  Ed.  II.  (S.S.)  60  ;  18,  19  Ed.  III.  (R.S.)  202  ;  Willion  v.  Berkeley  (1561) 
Plowden  at  p.  235 ;  Coke,  Second  Instit.  336 ;  Booth,  Real  Actions  140 ;  Challis, 
Real  Property  (3rd  ed.)  84;  according  to  one  not  improbable  view,  Plowden  at  p. 
247,  cited  below  115  n.  4,  it  did  not  lie  after  three  descents  from  the  donee ;  see 
below  115  for  an  explanation  of  this  view.  It  would  seem,  however,  that  before 
De  Donis  the  donor's  right  was  not  a  reversion,  but  merely  a  possibility  of  reverter, 
below  68  n.  5. 

2"  Et  quia  in  novo  casu  novum  remedium  est  apponendum  fiat  impetranti  tale 
breve  "—then  follows  the  writ,  13  Edward  I.  c.  i. 

3  Y.BB.  3,  4  Ed.  II.  (S.S.)  112-113  ;  2  Rich.  II.  48-49 ;  Willion  v.  Berkeley  (1561) 
Plowden  at  p.  239;  Coke,  Second  Instit.  336;  Booth,  Real  Actions  140.  On  the 
other  hand,  the  existence  of  the  writ  at  common  law  is  thought  to  be  probable  by 
Maitland  from  a  consideration  of  a  MS.  register  of  writs  of  Edward  I.'s  reign, 
cited  vol.  ii  615  App.  Vd  note  4 ;  and  this  view  is  supported  by  Co.  Litt.  19a  ;  an 
intermediate  opinion  is  that  of  Serjeant  Bendloe  who  thought  that  a  formedon  in 
descender  lay  at  common  law  where  an  assize  would  not  serve  the  issue ;  thus  if  a 
man  married  a  first  wife  and  had  a  son,  and  he  then  married  a  second  wife  and  land 
was  given  to  him  and  the  heirs  of  his  body  by  the  second  wife,  and  he  had  a  son  by 
her— then,  as  the  assize  would  not  meet  the  case  of  the  son  by  the  second  wife, 
because  he  was  not  heir,  this  son  had  a  formedon  in  descender,  Plowden  at  p.  239 ; 
but  there  is  no  evidence  that  such  a  writ  was  ever  brought  before  the  statute  in  such 
a  case. 

4  P.  and  M.  ii  23-25  ;  Maitland,  Remainders  after  Conditional  Fees,  Coll.  Papers 
ii  174 ;  Challis's  reply  to  this  paper  will  be  found  in  his  Real  Property  (3rd  ed.) 
App.  II. 

5  Co.  Litt.  280b  ;  Booth,  Real  Actions  151,  says,  "  This  writ  is  partly  grounded 
upon  the  equity  of  the  Statute  de  Donis  Conditionalibus ;  "  it  is  true  that  Bracton, 
f.  69,  says  that  there  was  such  a  writ,  and  that  he  will  give  it,  but  he  fails  to  do  so ; 
see  P.  and  M.  ii  24. 

6  It  is  mentioned  in  Y.B.  33-35  Ed.  I.  (R.S.)  20 ;  and  there  is  a  case  turning  on 
such  a  writ  in  Y.B.  i,  2  Ed.  II.  (S.S.)  166-168. 


THE  REAL  ACTIONS  19 

Estates  for  life. 

Intrusion}  This  was  a  writ  of  entry  (in  the/^^,  cui  or  post) 
which  lay  for  the  reversioner  when  the  tenant  for  life,  in  dower, 
or  by  the  curtesy  died  seised,  and  after  his  death  one  intruded 
upon  the  land. 

Entry  ad  communem  legem}  This  was  a  writ  of  entry  (in 
the  per^  cui  or  post)  which  lay  for  the  reversioner  after  the  death 
of  the  tenant  for  life,  in  dower,  or  by  the  curtesy  when  such 
tenant  had  aliened. 

Entry  in  casu  proviso}  This  was  a  writ  of  entry  (in  the/e?r, 
cui  ox  post)  given  by  the  Statute  of  Gloucester  (1278).  It  lay 
when  the  tenant  in  dower  aliened  in  fee,  in  tail,  or  for  life ;  and 
by  it  the  reversioner  could  recover  the  land  even  during  the  life 
of  the  tenant  in  dower.  "  The  statute,"  said  Bereford,  CJ., 
"was  provided  to  supply  a  deficiency  in  the  common  law;  for 
under  the  common  law  there  could  have  been  no  recovery  during 
A's  [the  tenant's]  lifetime ;  and  the  statute  was  made  in  remedy 
of  that  hardship."  * 

Entry  in  consimili  casu}  By  the  Statute  of  Westminster  II. 
(1285)  the  last  mentioned  writ  was  extended  to  the  cases  of  the 
tenant  for  life  and  tenant  by  curtesy. 

Estates  for  life  or  years. 

Ad  terminmn  qui prceteriit}  This  was  a  writ  of  entry  (in  the 
pery  cui,  or  post)  which  lay  for  the  lessor  or  his  heirs,  when  such 
lessor  had  leased  for  life  or  years,  and  the  lessee,  after  the  ter- 
mination of  the  lease,  held  on,  or  where  a  stranger  entered,  so 
that  the  land  was  detained  from  the  lessor  or  his  heirs. 

Estates  held  in  Common. 

Partitione  Facienda}  This  writ  lay  at  common  law  for 
coparceners  (whether  at  common  law  or  under  the  custom  of 
gavelkind)  to  compel  a  division  of  the  land.  It  was  not  extended 
to  tenants  in  common  and  joint  tenants  till  Henry  VIII.'s  reign. ^ 

(iii)  The  actions  which  lie  to  protect  incorporeal  rights. 
The  Assize  of  novel  disseisin  lay  if  a  man  were  disturbed 
in  his  possession  of  certain  incorporeal  things,  such  as  rents  or 

J  Booth,  Real  Actions  i8i.  "^WAA.  190;  Y.B.  3,  4  Ed.  II.  (S.S.)  22,  23. 

3  Booth,  Real  Actions  197;  6  Edward  I.  c.  7;  Y.B.  3  Ed.  II.  (S.S.)  16. 

*Y.B,  6,  7  Ed.  II.  (S.S.)  60;  see  ibid,  xxi-xxiii  for  the  manner  in  which  the 
writ  was  used  instead  of  a  formedon  in  order  to  avoid  being  barred  by  the  ancestor's 
warranty  ;  as  to  this  effect  of  warranty,  see  below  117-118. 

5  Booth,  Real  Actions  199 ;  13  Edward  I.  st.  i  c.  24 ;  Y.B.  17,  18  Ed.  III.  (R.S). 
440  seqq. 

^  Booth,  Real  Actions  195 ;  for  the  evolution  of  the  writ  see  P.  and  M.  ii  68,  n.  2, 

^  Booth,  Real  Actions  244 ;  Litt.  §  247. 

831  Henry  VIII.  c.  i ;  32  Henry  VIII.  c.  32. 


20  THE  LAND  LAW 

rights  of  common.^  Its  scope  in  this  direction  was  extended  by 
the  Statute  of  Westminister  lU 

Quod  Permittat}  This  was  a  writ  which  might  be  in  the 
nature  either  of  a  writ  of  right  or  of  a  writ  of  entry.  It  lay  for 
the  disturbance  of  rights  of  common  or  other  incorporeal  rights  ; 
and  could  be  brought  by  the  heir  of  the  disseisee  against  the 
disseisor,  his  heir,  or  feoffee.  In  some  cases  the  question  whether 
it  or  a  Praecipe  quod  reddat  was  the  appropriate  writ  gave  rise 
to  controversy ;  ^  and  in  other  cases  it  was  coextensive  with  the 
assize  of  novel  disseisin  as  extended  by  the  Statute  of  West- 
minster II.  Its  scope  was  extended  to  remedy  many  various 
nuisances  to  incorporeal  hereditaments  by  the  provision  of  c.  24 
of  the  same  statute,  which  permitted  the  making  of  writs  in  consi- 
mili  casu. 

Quo  ]ure}  This  writ  lay  for  a  tenant  seised  in  fee  simple 
against  one  who  claimed  common  over  his  land. 

Secta  ad  Molendinum.'^  This  writ  lay  for  a  man  to  whose 
mill  another  owed  suit,  if  that  suit  were  withdrawn. 

(iv)  The  action  which  lies  to  assert  the  right  to  a  villein. 

Nativo  habendo?  This  was  a  writ  directed  to  the  sheriff 
ordering  him  to  deliver  to  the  lord  his  villein  who  has  run  away 
from  his  manor.  The  villein  could,  before  1350,^  stop  all  pro- 
ceedings on  this  writ,  till  the  itinerant  justices  came  into  the 
county,  by  suing  out  the  writ  de  libertate  probanda!^ 

(v)  The  actions  which  arise  out  of  certain  family  relationships. 

Husband  and  wife. 

The  writs  connected  with  dower.  The  law  provided  several 
writs  to  enable  a  woman  to  recover  her  dower. ^^  The  first  of 
these  writs  is  the  Writ  of  right  of  dower. '^^  This  was  a  writ  of  right 
patent  directed  to  the  heir  of  the  husband  ordering  him  to  do  the 
wife  right  in  his  court.  ^^  But,  because  it  was  a  writ  of  right 
patent  triable  in  the  lord's  court,  it  came  in  course  of  time  to  be 

1  P.  and  M.  ii  130,  131,  139.  2  j^  Edward  I.  st.  i  c.  25. 

8  Booth,  Real  Actions  237;  F.N.B.  123F-125A ;  App.  Ia  (7). 

^The  Eyre  of  Kent  ii  131,  132,  133,  134,  135,  136;  it  seems  to  have  been 
thought  that  if  the  disturber  of  the  right  was  the  owner  of  the  soil  of  the  servient 
tenement  this  writ  lay ;  and  if  the  disturber  was  a  stranger  a  Praecipe  quod  reddat 
lay. 

^  Booth,  Real  Actions  129. 

« Ibid  137 ;  see  Y.B.  12,  13  Ed.  III.  (R.S.)  122  for  a  specimen. 

'  Booth,  Real  Actions  127 ;  App.  Ia  {16). 

8  25  Edward  III.  c.  18.  »  Booth,  Real  Actions  128 ;  App.  Ia  (17). 

^°  For  the  law  as  to  dower,  see  below  189-197. 

1^  Glanvil  vi  5;  Booth,  Real  Actions  118;  Maitland,  Forms  of  Action  330. 

12  If  he  had  no  court  the  writ  was  directed  to  the  sheriff  and  was  returnable  in 
the  Common  Pleas,  Booth,  op.  cit.  118. 


THE  REAL  ACTIONS  21 

superseded  by  the  writ  of  dower  unde  nihil  habet}  This  was  a 
writ  of  right  brought  in  the  king's  court ;  and,  as  its  name  im- 
plies, only  lay  when  the  woman  had  received  no  part  of  her 
dower.  The  explanation  given  by  Bracton  ^  of  the  reason  why 
the  action  lay  in  the  king's  court  in  such  a  case  is  as  follows : — 
It  is  possible  that  the  widow  has  not  got  any  part  of  her  dower 
because  the  heir  denies  that  she  was  married.  But  this  question, 
being  a  matter  of  ecclesiastical  law,  can  only  be  tried  by  the 
bishop ;  and  the  bishop  can  only  be  compelled  to  certify  as  to 
this  by  the  king's  court.^  "  It  follows  that  if  there  is  any  chance 
of  a  denial  of  the  marriage  the  widow  must  go  to  the  king's 
court. "  *  Because  this  writ  lay  in  the  king's  court  it  eventually 
superseded  the  writ  of  right  of  dower,  "  wherein  sometime  great 
delays  are  used."  ^  Booth  speaks  of  it  as  the  "ordinary  writ," 
and  explains  that  generally,  when  a  wife  sues  for  dower,  she  has 
no  part  of  her  dower  assigned  to  her.*'  The  writ  of  Admeasure- 
ment of  dower  lay  when  "  the  heir  when  he  is  within  age  endoweth 
the  wife  of  more  than  she  ought  to  have  dower  of:  or  if  the 
guardian  endow  the  wife  of  more  than  the  third  part  of  the  land 
of  which  she  ought  to  have  dower.""  In  these  cases  the  heir, 
when  he  attained  his  full  age,  could  sue  for  admeasurement,  and 
the  restoration  of  the  surplus.  As  the  result  of  a  judgment  in 
a  writ  of  dower  the  widow  could  not  enter,  but  she  must  get  a 
writ  to  the  sheriff  to  assign  her  dower ;  ^  and,  in  a  writ  of  dower 
unde  nihil  habet,  the  statute  of  Merton  gave  her  damages  against 
the  heir  for  its  detention ;  ^  but  her  right  to  damages  was  lost  if 
the  heir  died  before  they  were  assessed. ^^ 

The  inconvenience  of  this  procedure  for  the  recovery  of 
dower  induced  the  court  of  Chancery  to  interfere  in  the  eighteenth 
century.  ^^  That  court  not  only  gave  a  better  remedy,  but  actually 
enlarged  the  scope  of  the  widow's  right.  It  gave  her  a  third  of 
the  rents  and  profits  from  the  date  of  her  husband's  death  till 

^  Glanvil  vi  15 :  Booth,  Real  Actions  166 ;  Bl.  Comm.  iii  183 ;  Maitland, 
Forms  of  Action  330-331 ;  App.  I  a  (10). 

2  Ff.  106,  296b.  3  See  vol.  i  121. 

^  Maitland,  Forms  of  Action  331.  ^  Co.  Litt.  32b. 

"  "  This  writ  is  of  little  use  or  practice  because  of  the  ordinary  writ  of  dower 
(unde  nihil  habet) ;  for  ordinarily  now  the  wife  has  no  part  of  her  dower  assigned  to 
her  when  she  sues  for  dower,  and  unless  she  have  some  part  of  her  dower  in  the  same 
town,  and  of  the  same  person,  and  sues  for  the  residue,  she  needs  not  bring  a  right 
of  dower,  but  the  other,  unde  nihil  habet,"  Booth,  Real  Actions  118;  and  see 
3  Edward  I.  st.   i  c.  49. 

'  F.N.B.  148F;  Bracton  ff.  314-315. 

8  Co.  Litt.  34b.  »  Ibid  32b  ;  20  Henry  III.  c.  i. 

^°  Williams  v.  Thomas  [1909]  i  Ch.  at  p.  720  ;  cf.  Fitz.,  Ab.  Damages  pi.  119. 

^^  See  the  judgment  of  Cozens-Hardy,  M.R.,  in  Williams  v.  Thomas  at  pp.  720- 
r23  ;  apparently  Somers,  L.C.,  refused  to  give  any  relief  to  a  dowress  in  1699,  2  Eq. 
"i^as.  Ab.  386 ;  but  Cowper,  L.C.,  in  1710  allowed  a  dowress  a  third  of  the  profits 
ifore  the  assignment  of  dower,  ibid.  386-387, 


22  THE  LAND  LAW 

dower  was  assigned,  not  only  as  against  the  heir,  but  also,  if  the 
the  heir  was  dead,  against  his  representatives.  Thus  the  widow 
got  in  equity  "two  distinct  rights,  namely  first  a  right  to  one 
third  of  the  rents  and  profits  from  the  death,  and  next  a  right  to 
have  dower  assigned  to  her ;  "  ^  and  her  right  of  action  to  get  an 
assignment,  though  it  may  be  barred  by  laches,  does  not  fall 
within  the  Real  Property  Limitation  Act.^ 

Cui  in  vita.^  This  was  a  writ  of  entry  (in  the  per,  cui,  or 
post)  which  could  be  brought  by  the  wife,  after  her  husband's 
death,  to  recover  the  wife's  freehold  aliened  by  the  husband. 
If  the  wife  died  before  she  brought  this  writ,  the  heir  had  a 
writ  of  entry  sur  cui  in  vita  if  the  estate  was  in  fee  simple  :  a 
formedon  if  the  estate  was  an  estate  tail. 

Cui  ante  divortiurn}  This  was  like  a  cui  in  vita,  substituting 
the  divorce  for  the  death  of  the  husband. 

Causa  matrimonii  prcelocuti.^  This  was  a  writ  of  entry  (in 
the  per,  cui,  or  post)  which  lay  to  enable  a  woman  to  recover 
land  from  a  man  to  whom  she  had  given  it  in  consideration  of 
a  contemplated  marriage  with  him,  which  had  not  taken  place. 

Ancestor  and  heir. 

The  three  different  varieties  of  the  real  actions — the  writ 
of  right,  the  assizes,  and  writs  analogous  to  the  writs  of  entry 
in  that  they  extend  the  scope  of  the  assize — can  be  seen  in 
the  actions  provided  to  protect  the  interests  of  the  heir. 

The  writs  of  right,  (a)  If  there  were  two  claimants  to  the 
estate,  both  of  whom  claimed  to  be  descended  from  the  same 
ancestor,  and  the  rival  pedigrees  were  not  disputed,  the  matter 
was  tried  by  writ  of  right  as  a  pure  question  of  law  on  the 
pleadings.  There  was  neither  battle  nor  the  grand  assize.^ 
(J))  The  writ  of  right  de  rationabili  parte?  If  an  ancestor 
seised  in  fee  simple  made  a  lease  for  life  and  died,  and  after- 
wards the  lessee  died,  and  then  one  of  two  or  more  coparceners 
deforced  the  other  or  others,  they  could  bring  this  writ  to  recover 
their  share.  As  in  case  {a)  the  question  was  tried  on  the 
pleadings,      ic)  Nuper  obiit.^      This    writ    was    not    properly    a 

^  Williams  v.  Thomas  [1309]  i  Ch.  at  p.  721. 

2  "  In  my  opinion  the  statute  applies  to  an  action  at  law  or  suit  in  equity  to  gain 
possession  of  a  definite  piece  of  land  as  distinguished  from  a  proceeding  to  obtain  a 
delimitation  of  parcels  under  which  for  the  first  time  a  title  to  a  definite  piece  of 
land  will  be  obtained,"  ibid,  at  p.  722  per  Cozens-Hardy,  M.R. 

2  Booth,  Real  Actions  185  ;  for  the  evolution  of  this  writ  see  P.  and  M.  ii  68  n.  2, 
and  Y.B.  20  Ed.  III.  (R.S.)  i  428  per  Hillary,  J.  ;  App.  Ia  (8). 

4  Booth,  Real  Actions  188. 

5  Ibid  197  ;  vol.  ii  594  n.  i ;  Y.BB.  i,  2  Ed.  II.  (S.S.)  32-34  ;  13,  14  Ed.  Ill  (R.S.) 
226. 

«P.  and  M.  ii  61.  '  Booth,  Real  Actions  119. 

^  Ibid  204 ;  for  cases  which  illustrate  its  scope  see  the  Eyre  of  Kent  (S.S.)  iii 
147-151.  153-159' 


THE  REAL  ACTIONS  28 

writ  of  right  at  all.  But,  as  Booth  says,  it  had  great  affinity 
with  the  last-mentioned  writ.  Both  lay  for  the  recovery  of 
land  by  one  coparcener  against  another.  The  difference  was 
that  the  writ  of  right  de  rationabili  parte  might  be  brought  if 
the  ancestor  was  seised  at  any  time,  whereas  for  the  purpose 
of  this  writ  the  ancestor  must  have  died  seised. 

The  assize  of  mort  d' ancestor.  I  have  already  said  some- 
thing of  the  scope  of  the  assize  of  mort  d'ancestor.^  The  assize 
was  summoned  to  answer  the  following  definite  questions — "the 
points  of  the  assize  "  :  (i)  Was  A  seised  in  his  demesne  as  of 
fee  on  the  day  on  which  he  died?  (2)  Did  he  die  within  the 
period  of  limitation  allowed  by  the  writ  ?  (3)  Is  the  claimant 
A's  nearest  heir  ?  ^  The  need  for  this  assize  arose  because,  as 
Maitland  has  pointed  out,  "  seisin  is  not  conceived  of  as  a 
descendible  right."  ^  In  the  age  of  Bracton  the  law  did  not, 
as  in  the  days  of  Littleton,^  attribute  a  seisin  in  law  to  the  heir.^ 
Seisin  had  not  in  the  former  period  acquired  that  connotation 
of  title  which  it  was  acquiring  in  the  latter.^  If  the  law  had 
conceived  of  seisin  as  a  descendible  right  "  there  would  have 
been  no  place  for  the  mort  d  ancestor,  for  its  sphere  would 
have  been  covered  by  the  novel  disseisin."^  The  assize  did 
not  lie  in  respect  of  lands  which  were  devisable.^  It  followed 
that  when,  as  the  result  of  the  legislation  of  Henry  VIII.'s 
and  Charles  ll.'s  reigns,  all  land  became  devisable,  this  remedy 
became  obsolete.^ 

Extensions  of  the  assize.  The  assize  of  mort  d'ancestor 
lay  not  only  against  the  original  abator,  but  against  anyone 
holding  the  land  however  remotely,  from  that  abator ;  ^^  but 
it  could  only  be  brought  by  the  father,  mother,  brother,  sister, 
uncle,  aunt,  nephew,  or  niece  of  the  deceased  ancestor. ^^  The 
reason  for  this  limitation  was  probably  the  same  as  the  reason 
for  which  the  scope  of  the  writs  of  entry  were  formerly  limited — 
an  extension  would  have  taken  business  from  the  feudal  lords 
and  their  courts.  ^^     These  lords  do  not  seem  to  have  objected 

1  Vol.  i  275-276,  329  ;  P.  and  M.  ii  56-62. 

2  Booth,  Real  Actions  207.  3  Forms  of  Action  324  ;  P.  and  M.  ii  59. 
4  §  448  ;  Bk.  iv  Pt.  II.  c.  I  §  2. 

'  P.  and  M.  ii  60.  ^  Above  10 ;  vol.  ii  354,  584. 

■^  Forms  of  Action  324  ;  P.  and  M.  ii  59. 

8  "  If  the  tenements  be  devisable  the  mort  d'ancestor  does  not  lie,  and  I  will 
tell  you  why.  In  respect  of  devisable  tenements  the  demandant  may  aver  the 
points  of  his  writ  .  .  .  yet,  though  he  have  all  the  points,  he  cannot  recover  against 
the  devisee ;  wherefore  the  mort  d'ancestor  does  not  lie,"  the  Eyre  of  Kent  (S.S.) 
iii  42  per  Spigurnel,  J. ;  but  this  did  not  apply  to  the  other  ancestral  writs  aiel, 
besaiel,  and  cosinage,  Y.B.  3  Ed.  II.  (S.S.)  198-199. 

9  Bl.  Comm.  iii  187.  10  P.  and  M.  ii  61. 
^^  Booth,  Real  Actions  206 ;  P.  and  M.  ii  56. 

^2  Above  13  ;  MaitUnd,  Forms  of  Action  325. 


24  THE  LAND  LAW 

to  its  extension  by  means  of  the  writs  of  Aiel  and  Besaiel}  by- 
means  of  which  heir  got  a  remedy  when  the  deceased  was  his 
grandfather  or  great-grandfather.  But  they  did  object  to  the 
writ  of  Cosinage  ^  by  means  of  which  the  heir  got  a  remedy 
where  the  deceased  was  his  collateral  relative,  however  remotely 
related  ;  and,  in  support  of  their  objection,  they  contended  that 
such  an  extension  was  contrary  to  the  clause  of  Magna  Carta 
which  limited  the  right  to  issue  the  writ  Praecipe.^  Bracton 
argued  that  this  extension  was  no  infringement ;  and  the  writ 
was  upheld.^  Thus  we  get  a  set  of  writs  of  entry  which  were 
supplementary  to  the  assize  of  mort  d'ancestor  in  the  same 
manner  as  the  writs  of  entry  sur  disseisin  were  supplementary 
to  the  assize  of  novel  disseisin. 

(vi)  The  actions  which  arise  out  of  the  incapacity  of  persons. 

Dum  fuit  non  compos  mentis}  This  was  a  writ  of  entry  (in 
the  per,  cut,  or  post)  by  which  a  person,  or  his  heir,  who  had 
aliened  his  land  in  fee  simple,  fee  tail,  for  life,  or  years,  while 
he  was  of  unsound  mind,  could  recover  the  land. 

Dum  fuit  infra  cetatem}  This  was  a  similar  writ  in  the  case 
of  alienation  during  infancy. 

Sine  assensu  capituli}  This  writ  lay  in  the  per,  cui,  or  post 
for  the  successor  of  a  dean,  bishop,  prebendary,  abbot,  prior, 
or  master  of  a  hospital  where  the  predecessor  had  alienated 
the  lands  belonging  to  the  house  or  office  without  the  consent 
of  their  convent  or  chapter. 

(vii)  The  actions  concerning  ecclesiastical  property. 

These  actions  were  a  very  important  branch  of  the  law  of 
real  actions,  and  we  can  see  here,  as  in  other  cases,  the  same 
distinct  varieties. 

The  writ  of  right  of  advowson?  This  was  a  writ  analogous 
to  the  writ  of  right  for  land  by  which  a  person  seised  in  fee 
simple  of  an  advowson  could  recover  the  advowson.  It  very 
early  came  to  be  superseded  by  the  two  following  writs. 

The  assize  of  darrein  presentment.^  This  assize  was  sum- 
moned   to   answer   the   question,    who    presented    on    the    last 

1  For  these  writs  see  Booth,  Real  Actions  200  ;  F.N.B.  221  D-O  ;  App.  Ia  (9). 

2  Bracton  f.  281a;  Bracton's  Note  Book,  case  1215. 

"See  Y.B.  6  Ed.  II.  (S.S.)  212  where  the  proprietary  character  of  the  writ 
comes  out  in  the  remark  of  Bereford,  C.J.,  to  the  effect  that  "this  is  a  writ  of 
cosinage  in  which  you  can  take  your  title  as  high  as  you  want  to  as  long  as  you 
can  make  yourself  cousin  to  him  from  whom  you  take  your  title." 

*  Booth,  Real  Actions  189.  ^  Ibid  193. 

«  F.N.B.  194I-195B.  '  Booth,  Real  Actions  121. 

8  Vol.  i  276,  329;  Booth,  Real  Actions  i2r,  224;  P,  and  M.  ii  136,  137;  see 
Y.B.  3,  4  Ed.  II.  (S.S.)  47  for  an  instance. 


THE  REAL  ACTIONS  25 

vacancy  of  a  church,  the  advowson  of  which  A  is  claiming 
against  B.  "  The  act  of  successfully  presenting  a  parson  to  a 
church  was  regarded  as  a  seisin,  a  possession  of  the  advowson,"  ^ 
so  that  if  A  or  his  ancestors  presented  on  the  last  occasion, 
A  will  probably  2  be  adjudged  to  be  entitled  to  present  on  this 
vacancy. 

Quare  impedit?  This  writ  was  an  extension  of  the  assize 
of  darrein  presentment.  If  A  presented  to  a  church  on  the 
last  vacancy,  and,  in  the  meantime,  conveyed  his  right  to  B, 
B  could  not  assert  his  right  by  the  assize  ;  but  he  could  sue 
by  this  writ  any  one  who  hindered  his  right.  Originally,  if  the 
wrongdoer  presented  before  action  brought,  B  had  no  remedy 
whatever;  but  the  Statute  of  Westminster  11.  (1285)  allowed 
him  a  period  of  six  months  from  the  vacancy  within  which 
to  assert  his  right.  The  same  statute  also  preserved  the  rights 
of  infants,  married  women,  and  reversioners  by  allowing  them 
to  bring  the  assize  or  this  writ,  in  spite  of  a  usurpation  made 
while  they  were  under  disability ;  and  gave  damages  to  the 
plaintiff.  It  was  for  this  reason  that,  in  Richard  II.'s  reign, 
it  was  regarded  as  being  rather  delictual  than  proprietary  in 
its  character.* 

Supplementary  to  these  writs  was  the  Quare  non  admisit. 
It  lay  when  a  man,  having  recovered  his  advowson,  and  having 
got  a  writ  to  the  bishop  to  admit  his  clerk,  the  bishop  refused 
to  admit  him.^ 

The  assize  utrum  was  directed  to  a  different  purpose.  Its 
original  object  was,  as  we  have  seen,  to  determine  whether 
land  was  held  by  spiritual  or  by  a  lay  tenure,  in  order  that 
the  case  might  go  before  the  proper  tribunal,  spiritual  or  lay.^ 
But  in  spite  of  the  clause  of  the  Constitutions  of  Clarendon,'^ 
which  stated  that  all  cases  concerning  land  held  in  frankalmoin 
should  go  to  the  ecclesiastical  courts,  the  king's  courts  had 
obtained  jurisdiction   over   all    land    held  by  this   tenure.     The 

^  Maitland,  Forms  of  Action  326  ;  below  98,  100. 

2  A  might  have  granted  the  advowson  to  B,  and  B  could  plead  this  by  an 
exceptio,  P.  and  M.  ii  137. 

3  Ibid  137,  138;  13  Edward  I.  st.  i  c.  5  ;  Booth,  Real  Actions  223  seqq. ; 
App.  Ia  (ii). 

4  Y.B.  12  Rich.  II.  ^•^  per  Charlton,  CJ. 

'"  F.N.B.  47C ;  for  a  case  in  which  such  a  writ  was  brought  see  the  Eyre 
of  Kent  (S.S.)  iii  162 ;  for  other  supplementary  writs  relating  to  these  matters 
see  F.N.B.  36G-39G. 

^  Vol.  i  276,  329-330  ;  Glanvil,  xiii  2,  mentions  other  recognitions  "  utrum," 
e.g.  "  utrum  aliquis  seisitus  fuerit  de  aliquo  libero  tenemento  die  quo  obiit  ut  de 
fcedo  vel  ut  de  vadio ;  utrum  aliquis  sit  infra  astatem  vel  plenum  habuerit  aetatem ; 
utrum  aliquis  obierit  seisitus  de  aliquo  libero  tenemento  ut  de  foedo  vel  ut  de 
warda ; "  but  these  never  developed  into  definite  legal  processes  for  beginning  £( 
litigation. 

^  c,  ix  ;  below  35. 


26  THE  LAND  LAW 

ordinary  tenant  in  frankalmoin,  therefore,  had  the  ordinary  free- 
holder's remedies,  possessory  and  proprietary ;  and  he  was 
denied  any  others.  But  the  land  belonging  to  a  parish  church 
was  regarded  as  a  gift  to  the  church  and  not  to  the  rector  and 
his  successors.  The  rector  was  regarded  simply  as  the  guardian 
of  the  church  ;  and  though  he  might  have  a  possessory  remedy, 
e.g.  the  assize  of  novel  disseisin,  he  had  no  proprietary  remedy. 
The  assize  utrum  came  in  the  thirteenth  century  to  be  so  used 
that  it  gave  him,  in  right  of  his  church,  a  proprietary  remedy. 
This  writ,  said  Scrope  arguendo  in  1 3 12-13 1 3,  "  is  a  writ  of  right, 
in  which  the  parson  can  try  the  right  of  his  church  as  highly 
as  by  any  other  writ  that  there  is ; "  and  to  this  argument 
Bereford,  C.  J.,  assented.^  Thus  the  writ  came  to  be  "  the 
parson's  writ  of  right."  ^ 

(viii)  The  actions  which  deal  with  abuse  of  the  process  of  the 
court. 

Some  of  the  actions  which  were  given  to  remedy  these  abuses 
had  a  peculiar  reference  to  the  real  actions.  The  writ  of  Attaint 
lay  originally  only  against  the  assize.^  The  writ  Quod  ei  deforceat^ 
was  given  by  the  Statute  of  Westminster  II.  (1285)  to  enable  a 
tenant  of  the  particular  estate  of  freehold  to  recover  land  which 
he  had  lost  by  default  in  a  real  action.  The  writ  of  Redisseisin 
was  given  by  the  Statute  of  Merton  (123 5- 1236),  and  lay  when 
a  man  who  had  recovered  in  an  assize  and  had  had  execution 
was  again  disseised  by  the  same  disseisor.  The  writ  of  Post  disseisin 
was  given  by  the  same  statute  after  a  recovery  in  any  real  action. 
The  disseisor  was  sent  to  prison,  and  the  injured  party  was  by 
the  Statute  of  Westminster  II.  awarded  double  damages.^  I  have 
already  mentioned  the  statutes  which  gave  special  remedies  in  the 
case  of  forcible  entries.^ 

At  the  beginning  of  the  mediaeval  period  the  sphere  of  the 
real  actions  was  kept  quite  distinct  from  the  sphere  of  the 
personal  actions ;  ^  but,  as  we  have  seen,  the  action  of  trespass 
and  its  offshoots  showed,  at  the  end  of  this  period,  a  tendency  to 
encroach  upon  the  sphere  of  the  other  personal  actions.^  It  was 
hardly  possible  that  its  expansion  should  leave  the  real  actions 
wholly  unaffected.  The  old  stringency  was  being  somewhat  re- 
laxed.    The  forms  of  action  were  no  longer  divided  from  one 

lY.B.  6Ed.  II.  (S.S.)70,  71. 

2  P.  and  M.  i  226-228 ;  the  parson  is  not  yet  regarded  as  a  corporation  sole, 
below  480-481. 

3  Vol.  i  337. 

*  Booth,  Real  Actions  253 ;  13  Edward  I.  st.  i  c.  4. 
•^  Booth,  Real  Actions  260,  261 ;  20  Henry  III.  c.  3. 
"  Vol.  ii  453  ;  below  27  n.  5. 
7  Vol.  ii  261 ;  below  27  n.  4.  »  Vol.  ii  455-456. 


THE  REAL  ACTIONS  27 

another  by  compartments  which  were  completely  watertight.^ 
From  an  early  date  trespass  was  regarded  as  being  in  some  cases 
supplementary  to  the  assize  of  novel  disseisin.  In  the  assize  the 
plaintiff  could  only  recover  damage  to  the  actual  freehold,  and 
not  damages  for  injury  to  the  chattels  thereon/  unless  the  injury 
to  the  chattels  and  the  disseisin  were  all  part  of  one  transaction.^ 
In  other  cases  it  was  possible  to  make  trespass  do  the  work  of 
the  novel  disseisin;^  and  Henry  VI. 's  statutes  of  forcible  entries, 
by  giving  actions  of  trespass,  encroached  on  the  sphere  of  the 
assize  of  novel  disseisin.^  But  it  is  not  to  be  expected  that 
trespass  will  make  serious  advances  in  this  direction,  in  spite  of 
the  greater  convenience  of  its  procedure,  till  something  more  than 
damages  can  be  recovered  by  its  means.  It  was  used  at  the  end 
of  this  period  to  protect  the  copyholder^  and  the  lessee  for 
years ;  ^  and,  when  it  has  become  possible  by  its  means  to  restore 
to  the  lessee  his  term,  it  will  become  by  easy  fictions  a  serious 
rival  not  only  to  the  novel  disseisin,  but  also  to  many  other  real 
actions.®     But  this  is  as  yet  in  the  future. 

There  are,  however,  other  cases  in  which  some  forms  of  the 
action  of  trespass  were  making  inroads  upon  the  outlying  frontiers 
of  the  field  of  the  real  actions.  I  have  already  noted  that  what 
was  in  substance  a  variety  of  the  writ  of  trespass  could  be  used 
to  do  the  work  of  the  writ  of  right  of  ward.^  In  Edward  III.'s 
reign  another  variety  of  the  same  writ  became  concurrent  with 
the  action  of  replevin. ^*^  But  trespass  was  chiefly  used,  or  attempts 
were  made  to  use  it,  in  the  cases  where  the  specific  restitution 
given  by  the  real  actions  was  not  so  clearly  superior  to  the 
damages  given  by  the  personal  action.  It  is  clear  that  encroach- 
ments upon  the  free  enjoyment  of  some  of  that  miscellaneous 
collection  of  incorporeal  things  known  to  the  mediaeval  common 

1  Vol.  ii  454-455. 

2  Eyre  of  Kent  (S.S.)  iii  63,  73-74. 

^  This  is  Mr.  Bolland's  explanation  of  the  cases  cited,  ibid  xx. 

^Bracton's  Note  Book  case  378;  Y.B.  11,  12  Ed.  III.  (R.S.)  186  Stonore,  C.J., 
says,  "  In  a  plea  of  trespass,  by  plea  of  the  defendant  the  plea  may  be  turned  out  of 
the  nature  of  the  writ,  by  pleading  in  the  Right ;  but  let  the  plaintiff  take  care  for 
himself  that  he  do  not  plead  out  of  the  nature  of  the  writ;  "  ibid  516  Trewith  says, 
"  It  is  not  decided  whether  a  writ  of  trespass  lies  for  a  disseisin  ;  "  see  Y.BB.  14 
Ed.  III.  (R.S.)  230,  232  ;  14,  15  Ed.  III.  104  seqq.  for  cases  in  which  trespass  was 
brought  where  an  assize  might  have  lain. 

^8  Henry  VI.  c.  g;  Hale,  H.C.L.  210,  211,  "Many  titles  of  land  were  deter- 
mined in  personal  actions ;  and  the  reasons  hereof  seem  to  be  .  .  .  3rdly,  because 
the  statute  of  8  Henry  VI.  had  helped  men  to  an  action  to  recover  their  possessions 
by  a  writ  of  forcible  entry ;  even  while  the  method  of  recovery  of  possessions  by 
ejectments  was  not  known  or  used." 

^  Below  208-209  ;  vol.  ii  578.  "^  Below  216  ;  vol.  ii  581. 

«  Bk.  iv  Pt.  II.  c.  I  §  I. 

*•  Above  17  n.  i  ;  and  the  writ  of  Deceit  and  a  Cui  in  vita  might  be  concurrent, 
Y.B.  20  Ed.  III.  (R.S.)  i  428, 

^«  Below  285. 


28  THE  LAND  LAW 

law  might  easily  be  remedied  by  some  form  of  this  action.^  In 
Henry  IV. 's  reign  an  attempt  was  made  to  bring  this  action  for 
an  obstruction  to  a  right  of  way ;  but  it  was  laid  down  that  the 
case  was  one  for  the  assize  of  nuisance,  and  the  writ  abated.^ 
But  though,  both  in  this  period  ^  and  later,^  there  was  some  re- 
luctance to  interfere  with  the  sphere  of  the  real  actions,  the  opinion 
was  expressed  that  as  against  persons  against  whom  the  assize 
did  not  lie,  or  for  minor  disturbances,  not  amounting  to  total 
obstruction,  the  action  might  lie.^  As  early  as  Richard  II.'s 
reign  it  was  allowed  to  do  the  work  of  the  writ  Curia  Claudenda ;  ^ 
and  in  Henry  VI. 's  reign  there  are  several  cases  in  which  trespass 
on  the  case  was  used  either  as  a  substitute  for  or  a  supplement 
to  a  Cessavit, '^  or  a  Secta  ad  Molendinum.^  It  was  in  respect  to 
such  rights  as  annuities  and  corodies,^  which  lie  on  the  borderland 
between  property  and  contract,  that  the  most  definite  encroach- 
ments were  made  in  this  period.  In  Richard  II.'s  reign  it  was 
allowed  that  the  infringement  of  a  customary  right  of  the  bedell 
of  a  hundred  to  claim,  as  incident  to  his  office,  certain  gallons  of 
beer,  could  be  remedied  by  action  of  trespass  on  the  case ;  ^^  and, 
in  Edward  IV.'s  reign,  "  Moyle  and  other  justices  and  some  of 
the  Serjeants  resolved  that,  if  a  man  grants  me  that  I  shall  have 
yearly  for  my  life  hay  and  straw  in  my  house  sufficient  for  the 
keep  of  two  cows  during  the  winter  season,  and  if  I  am  seised  of 
this  right  and  disseised,  I  shall  have  action  on  my  case."  ^^  These 
precedents  were  cited  by  Coke  in  the  Earl  of  Shrewsbury  s  Case}'^ 
in  which  the  modern  rule  was  established  that,  in  such  cases,  the 
parties  might  sue  either  by  an  assize  or  by  action  of  trespass  on 
the  case. 

1  Vol.  ii  355-356. 

^Fitz.,  Ab.  Accion  stir  le  Cas  pi.  24,  Markham  said,  "  Si  home  leve  un  fosse  ou 
molin  a  travers  de  mon  chymin,  j'avera  assise  de  nusans  etnul  auter  brief;  "  cp.  Y.B. 
19  Hy.  VI.  Mich.  pi.  ^g per  Paston,  J.  (p.  29). 

^Y.B.  20  Hy.  VII.  Mich.  pi.  18,  '•  A  ce  que  Kingsmill  dit  que  ou  Nusance  gist, 
la  ne  gist  Action  sur  le  cas  jeo  agre  bien  :  car  I'un  est  real,  et  I'autre  mere  personel, 
et  tiels  actions  ne  peuvent  estre  ensemble ;  "  this  idea  survived  till  the  abolition  of 
the  real  actions  in  the  rule  that  the  action  of  debt  would  not  lie  to  recover  a  freehold 
rent,  so  long  as  the  freehold  on  which  it  was  charged  existed,  Thomas  v.  Sylvester 
(1873)  L.R.  8  Q.B.  at  p.  371  per  Blackburn,  J. 

**  See  Anon.  (1566)  Dyer  248b;  Moore  v.  Browne  (1573)  ibid  319b. 

5Y.BB.  19  Hy.  VI.  Mich.  pi.  49;  33  Hy.  VI.  Trin.  pi.  10  per  Prisot,  C.J., 
and  Moile,  J. 

"Fitz.,  Ab.  Accion  sur  le  Cas  pi.  50. 

'Y.B.  22  Hy  VI.  Hil.  pi.  36  (p.  47). 

8  Ibid  Mich.  pi.  33.  9  Below  152-153. 

^^  Fitz.,  Ab.  Accion  sur  le  Cas  pi.  51 — this  indulgence  was  put  on  the  ground  that 
the  man  could  hardly  be  said  to  have  a  freehold ;  as  Thirning  said,  "  Paraventour  il 
n'ad  riens  mes  pur  cause  de  son  office  pour  le  temps,  et,  come  un  clerke  cieins,  il  n'ad 
rien  forsque  un  occupacion  pour  le  temps  ;  uncore,  si  ascun  luy  fait  tort  a  chose  que 
afifectira  a  son  office,  il  avera  brief  de  trespass." 

"  Ibid  pi.  17  =  Y.B.  4  Ed.  IV.  Pasch.  pi.  2. 

12  (161 1)  9  Co.  Rep.  atf.  51a, 


FREE  AND  UNFREE  TENURE     29 

In  these  directions,  therefore,  certain  small  inroads  had  been 
made  upon  the  sphere  of  the  real  actions  by  the  action  of  trespass 
on  the  case.  When  a  variety  of  trespass  on  the  case  came  to  be 
regarded  as  a  contractual  action,^  we  can  see  one  road  by  which 
some  of  these  miscellaneous  incorporeal  things  of  mediaeval  law 
lost  their  character  of  things  and  became  rights  arising  out  of 
contract.  We  can  see,  too,  one  of  the  roots  of  the  later  doctrines 
as  to  covenants  running  with  the  land.  The  rights  conferred  by 
these  covenants  were  in  many  cases  things  which  issued  out  of 
the  land,  the  right  to  which  could  be  enforced  against  the  holder 
of  the  land  for  the  time  being  by  real  action.^  Some  of  them 
did  not  lose  this  characteristic  when  they  came  to  be  regarded  as 
rights  which  rested  upon  the  agreement  of  the  parties.  But,  as 
I  have  said,  the  supremacy  of  this  organized  system  of  real 
actions  was  not  seriously  threatened  during  this  period.  That 
supremacy  it  had  held  for  three  hundred  years,  so  that  it  was 
inevitable  that  the  rights  which  were  protected  by  it  should 
assume  a  form  different  from  those  which  were  not  so  protected. 
In  fact,  the  determination  of  the  question  whether  any  given  right 
fell  within  its  sphere  has  in  many  cases  affected  the  whole  subse- 
quent history  of  that  right  by  placing  it  in  one  or  other  of  the 
two  great  categories  known  to  English  law,  real  or  personal 
property.  We  do  not  meet  the  term  "real  property"  in  the 
mediaeval  common  law;  but  the  foundations  of  that  conception 
were  laid  in  the  rules  which  determined  the  sphere  of  these  real 
actions.  So  marked  were  the  peculiarities  impressed  upon  the 
rights  which  fell  within  that  sphere  that,  though  the  real  actions 
have  disappeared,  real  property  remains.  In  the  ensuing  sections 
we  shall  see  what  rights  in  the  land  were  included  within  the 
sphere  of  influence  of  the  real  actions  and  what  were  not ;  and  we 
shall  see  that  their  inclusion  or  exclusion  has  given  rise  to  large 
differences  in  the  substantive  law  relating  to  them. 

§  2.  Free  Tenure,  Unfree  Tenure,  and  Chattels  Real 

The    distinctions    between    free   tenure,    unfree    tenure,    and 
chattels  real  are  fundamental  in  the  land  law.     I  have  already 
lid  something  of  these  distinctions.^     Here  I  must  say  something 
I  little  more  in  detail  about  their  origins  and  the  principles  which 
iderlie  them. 

Free  Tenure  and  Unfree  Tenure 

In  the  thirteenth  century  the  legal  effect  of  deciding  that  land 
is  held  by  free  or  unfree  tenure  was  clear.     If  the  land  was 

i  Below  429-453. 

2  Cp.  Holmes,  Common  Law  388-390 ;  below  161-165. 

3  Vol.  ii  260-262,  576-578,  581-582. 


30  THE  LAND  LAW 

held  by  free  tenure  the  tenant  was  protected  by  the  courts  of 
common  law  and  by  the  real  actions.  If  it  was  held  by  unfree 
tenure  the  tenant  was  protected  neither  by  these  courts  nor  by 
these  actions.  What  was  the  principle  which  underlay  this  pro- 
cedural test,  and  what  were  its  effects  upon  the  law  ? 

The  free  tenures  cover  a  wide  field,  comprising  many  kinds  of 
relationship  between  many  different  classes  of  persons ;  ^  and  the 
conception  of  tenure  covers  a  yet  wider  field.^  But  all  those  who 
held  by  these  free  tenures  were  protected  by  the  same  courts  and 
by  the  same  forms  of  action.  It  was  only  those  who  held  by 
unfree  tenure  who  escaped  their  direct^  influence.  Now,  this 
extension  of  the  jurisdiction  of  the  royal  courts  effected  a  great 
simplification  in  the  land  law.  To  see  how  great  it  was  we  need 
only  look  across  the  Channel.  In  France  the  laws  relating  to  the 
military  fiefs,  to  the  lands  of  the  roturier  (a  person  answering  in 
some  respects  to  the  socage  tenant),  and  to  the  lands  of  the 
villein,  all  differed  from  one  another;^  jurisdiction  over  land  held 
by  these  different  kinds  of  tenure  was  parcelled  up  among  many 
feudal  lords ;  ^  and,  as  we  have  seen,  the  franc  alien  was  still 
known. ^  It  is  clear,  therefore,  that  the  royal  judges,  in  making 
this  great  simplification  in  the  land  law,  must  have  been  obliged 
to  ignore  many  old  distinctions,  and  to  draw  their  lines  through 
many  different  classes  of  tenure  and  classes  of  persons  which,  in 
the  old  days  of  customary  law,  shaded  off  into  one  another.^ 
Certain  cases  decided  in  the  thirteenth  century,  when  these  great 
distinctions  were  being  drawn,  afford  an  illustration.  These  cases 
apparently  lay  down  the  rule  that  the  lord  cannot  eject  a  free 
man  holding  by  unfree  tenure  so  long  as  he  duly  performs  his 
services.^  But  in  later  law,  so  soon  as  it  was  admitted  that  the 
services  were  villein  services,  the  courts  of  common  law  would 
have  enquired  no  further.  These  cases  are  in  fact  a  survival 
from  the  days  before  all  land-holding  had  been  neatly  divided 
into  two  classes  upon  the  principle  of  protected  or  not  protected 
by  the  king's  court. ^  They  cannot  be  regarded  as  foreshadowing 
the  copyhold  tenure  of  later  law.^*^  It  is  true  that  some  of  the 
customs  observed  by  the  unfree  tenants  within  the  manor,  and 

^  Vol.  ii  200,  260  ;  below  34-54.  ^  Ibid  199-201. 

'As  to  their  indirect  influence  see  vol.  ii  380-381. 

"^Esmein,  Histoire  du  Droit  Frangais  (nth  ed.)  215-248. 

5  Ibid  294-301.  fi  Vol.  ii  75  n.  8. 

7  P.  and  M.  i  389. 

^Bracton's  Note  Book  cases  70  and  88  (1220);  case  1103  (1225);  a  decision  of 
William  Raleigh  cited  Bracton  f.  200;  for  these  cases  see  Vinogradoff,  Villeinage 
78-81 ;  the  Mirror  tries  to  distinguish  the  villein  from  the  serf  (cp.  Vinogradoff, 
op.  cit.  App.  III.),  and  the  book  sometimes  represents  conservative  opinion,  vol.  ii 

332-333- 

^  P.  and  M.  i  340  n.  3. 

1**  For  this  view  see  Leadam,  L.Q.R.  ix  351. 


FREE  AND  UNFREE  TENURE     31 

that  some  of  the  exceptional  modes  of  land-holding  recognized 
by  the  common  law,  supply  striking  evidence  of  old  resemblances 
ignored  by  the  clear-cut  distinctions  of  the  royal  judges ;  ^  but 
copyhold  tenure  was  the  product  of  later  influences,  such  as  the 
growth  of  fixed  customs  created  by  the  working  of  the  manorial 
courts,  and  changes  in  the  economic  system.^ 

What  then  were  the  tests  adopted  by  these  judges  if  it  became 
necessary  to  decide  whether  a  giv^en  piece  of  land  was  held  by 
one  tenure  or  another,  and  what  were  the  social  or  economic  facts 
at  the  back  of  this  distinction  ? 

The  tests  which  the  judges  applied  were  somewhat  fluctuating 
and  uncertain.  They  sometimes  took  some  particular  incident 
and  treated  it  as  presumptive  evidence  of  unfree  tenure.  The 
incident  most  usually  taken  is  Merchet — the  fine  paid  for  leave  to 
give  a  son  or  daughter  in  marriage.^  Other  incidents  were  the 
liability  to  tallage,^  and  the  fact  that  the  land  descends  to  the 
youngest  child. ^  But  none  of  these  tests  based  upon  the  incidents 
of  tenure  were  decisive,  because  such  incidents  were  found  in  the 
case  of  lands  held  by  free  tenure  as  well  as  in  the  case  of  lands 
held  by  unfree  tenure.*^  A  more  satisfactory  test  was  found  in 
the  character  of  the  services  themselves.  In  employing  this  test 
the  judges  sometimes  dwelt  upon  the  certainty  or  the  uncertainty 
of  the  services,"  sometimes  upon  the  nature  of  the  services. 

When  the  judges  talked  of  services  which  were  uncertain 
they  did  not  mean  that  the  tenant's  work  was  not  fixed.  As  a 
rule  it  was  very  elaborately  fixed  in  the  manorial  extent.  They 
meant  that  the  lord  could  order  the  tenant  to  do  one  of  several 
things.^  The  distinction  which  they  had  in  their  minds  really 
corresponds  to  the  distinction  drawn  in  later  law  between  the 
servant  and  the  independent  contractor.^  The  one  has  the  order- 
ing and  control  of  the  work  which  he  is  doing,  the  other  has  not. 
So  with  these  different  classes  of  tenant — the  free  tenant  may 
have  to  perform  various  agricultural  services  not  very  different  in 
kind  from  some  of  those  required  of  the  unfree  tenant ;  ^^  but  as 

^  Below  256-275  ;  and  see  vol.  ii  72-73,  376.  ^ggiow  202-213. 

2  Vinogradoff,  Villeinage  153  ;  Braction  f.  208b,  "  Talliari  autem  potest  ad 
voluntatem  domini  ad  plus  vel  ad  minus.  Item  dare  merchetum  ad  filiam  maritandam, 
et  ita  semper  tenebitur  ad  incerta,  ita  tamen  quod  si  liber  homo  sit,  hoc  faciat  nomine 
villenagii  et  non  nomine  personas,  nee  etiam  tenebitur  ad  merchetum  de  jure,  quia 
hoc  non  pertinet  ad  personam  liberi,  sed  villani." 

•*  Vinogradofif,  Villeinage  83,  163 ;  P.  and  M.  i  354-356. 

5  Vinogradoff,  Villeinage  157.  ^Ibid  155;  P.  and  M.  i  355. 

■^  Bracton  f.  208b,  "  lUe  qui  tenet  in  villenagio,  sive  liber  sive  servus,  faciet  de 
villenagio  quicquid  ei  praeceptum  fuerit,  nee  scire  debeat  sero  quid  facere  debeat  in 
crastino,  et  semper  tenebitur  ad  incerta;  "  cp.  Ramsey  Cart  iii  no.  680,  and  ibid  pp. 
283,  289,  295  for  some  cases  of  services  of  a  mixed  character. 

8  P.  and  M.  i  353,  354 ;  for  a  specimen  of  a  Manorial  Extent  see  App.  II. 

9  Pollock,  Torts  (5th  ed.)  75. 

^^  See  Eynsham  Cart,  i  nos.  409,  467 ;  Ramsey  Cart,  i  no.  226. 


32  THE  LAND  LAW 

a  rule  the  free  tenant  is,  subject  to  the  necessity  of  performing 
certain  definite  duties,  more  completely  the  master  of  his  time 
and  labour.  Moreover,  we  must  not  forget  that,  though  the 
royal  courts  drew  a  clear  distinction  between  holding  by  an  un- 
free  tenure  and  being  personally  unfree,^  in  a  large  number  of 
cases  unfreedom  of  tenure  and  personal  unfreedom  went  together. 
The  villein  is  not  master  of  his  own  time  or  his  own  person. 
Tenure  of  land  in  return  for  services  which  put  a  large  part  of  a 
man's  time  and  the  ordering  of  his  life  at  the  disposal  of  another 
may  well  have  seemed  to  connote  unfree  tenure.  The  man 
himself,  if  personally  free,  could  throw  up  his  holding  and  depart ; 
but  while  he  remained  he  lived  the  life  of  a  villein.^ 

The  same  principle  is  at  the  back  of  the  distinction  based 
upon  the  nature  of  the  services  due.  A  tenant  whose  chief 
services  were  labour  services  held  by  an  unfree  tenure ;  a  tenant 
who  paid  rent — though  he  performed  some  labour  services — held 
by  a  free  tenure.^  In  the  former  case  the  tenant  was  but  a  unit 
in  the  agricultural  organization  of  the  manor.  He  was  simply 
one  of  the  hands  by  means  of  which  the  lord's  demesne  was 
cultivated.  In  the  latter  case  the  tenant  was  in  the  position  of 
a  man  who  is  engaged  on  a  venture  of  his  own.  It  is  true  indeed 
that  even  from  the  free  tenant  the  system  of  agriculture  in  vogue 
demanded  much  communal  action.^  It  is  true  that  the  jurisdic- 
tional and  police  powers  sometimes  annexed  to  the  manor 
increased  a  communal  feeling  which  came  very  naturally  to  a 
feudal  age.^  But  if  we  look  simply  at  the  facts  of  land  tenure 
we  can  see,  as  Sir  Paul  Vinogradoff  has  said,  that  "  the  tenants 
in  villeinage  generally  appear  arranged  into  large  groups,  in  which 
every  man  holds,  works,  and  pays  exactly  as  his  fellows ;  so  that 
when  the  tenements  and  services  of  some  one  tenant  have  been 
described  we  then  read  that  the  other  tenants  hold  similar  tene- 
ments and  owe  similar  services.  On  the  other  hand,  the  free- 
holds seem  scattered  at  random  without  any  definite  plan  of 
arrangement,  parcelled  up  into  unequal  portions,  and  subjected 
to  entirely  different  duties.  One  man  holds  ten  acres  and  pays 
3s.  for  them;  another  has  eight  and  a  half  acres  and  gives  a 
pound  of  pepper  to  his  lord  ;  a  third  is  possessed  of  twenty-three 
acres,  pays  4s.  6d.,  and  sends  his  dependants  to  three  boon-works ; 
a  fourth  brings  one  penny  and  some  poultry  in  return  for  his  one 

1  Vol.  ii  264-265,  577. 

2  Bracton  f.  208b,  "  Si  autem  villanus  fuerit,  omnia  faciat  et  incerta  tarn  ratione 
villenagii  quam  personas,  nee  liber  homo,  si  sic  tenuerit,  contra  voluntatem  domini 
villenagium  retinere  poterit,  nee  ipse  compelli  quod  retineat  nisi  velit," 

3  P.  and  M.  i  354 ;  in  the  eleventh  century  we  get  a  similar  distinction  betweoi 
socmen  and  villeins,  Vinogradoff,  English  Society  439. 

4  Vol.  ii  56-61,  376-377.  5  Vol.  i  184-186;  vol.  ii  381-384. 


FREE  AND  UNFREE  TENURE    33 

acre.  The  regularity  of  the  villein  system  seems  entirely  opposed 
to  the  capricious  and  disorderly  phenomena  of  free  tenure."  ^ 
The  royal  courts  had  confined  the  political  influence  of  feudal 
jurisdiction  within  the  narrow  bounds  of  the  manor.^  When  they 
had  assumed  jurisdiction  over  all  lands  held  by  free  tenure  they 
may  well  have  thought  that  enough  had  been  done.  It  may  well 
have  seemed  that  to  extend  this  jurisdiction  further  would,  by 
depriving  landowners  of  proper  control  over  the  working  of  their 
estates,  have  created  great  difficulty  in  their  management ;  and 
the  disputes  between  tenants  and  their  lords  on  the  manors  of 
the  ancient  demesne  prove  that  such  a  view  would  not  have  been 
groundless.^  Even  in  the  nineteenth  century  the  legislature 
thought  that  it  was  "  much  too  delicate  a  matter  "  to  interfere  as 
between  the  stewards  of  manors  and  their  lords.*  For  these 
reasons  we  can  see  that  at  the  back  of  the  vague  and  sometimes 
contradictory  criteria  applied  by  the  royal  courts  to  distinguish 
free  from  unfree  tenure  there  was,  in  the  thirteenth  century,  a 
broad  basis  of  social  and  economic  fact. 

This  fundamental  division  in  the  economic  ordering  of  society 
in  the  thirteenth  century  was  given  a  prominence  and  a  per- 
manence by  the  procedural  rule  which  the  royal  courts  based 
upon  it.  Consequently  its  effects  on  the  land  law  lasted  long  after 
the  facts  upon  which  it  was  originally  based  had  changed.  Labour 
services  were  commuted  for  money  payments.  Tenants  who 
held  by  an  unfree  tenure  got  the  protection  of  the  royal  courts. 
A  definite  body  of  law  relating  to  land  held  by  unfree  tenure — 
not  wholly  unaffected  by  the  common  law  relating  to  lands  held 
by  free  tenure — gradually  emerged.  Tenure  in  villeinage  was 
replaced  by  copyhold  tenure ;  ^  and  with  the  disappearance  of  the 
older  tests,  the  conveyancing  test  of  our  modern  law  makes  its 
appearance.  But,  owing  to  this  procedural  rule  made  in  the 
thirteenth  century,  lands  held  by  unfree  tenure  had  remained 
outside  the  sphere  of  the  real  actions,  and  only  came  under  the 

^  Villeinage  334,  335 ;  Bracton's  Note  Book  case  1210  gives  a  very  good 
illustration  of  the  various  tests  employed  to  distinguish  free  from  unfree  tenure.  In 
that  case  the  jurors  found  that  Roger  paid  2S.  a  year,  did  two  works  in  the  autumn, 
the  lord  finding  food,  and  gave  two  fowls  at  Christmas,  "  et  manducabit  cum  domino 
suo  ;  "  and  that  neither  he  nor  his  ancestors  had  paid  merchet  nor  tallage.  Thomas 
(the  lord)  admitted  that  other  tenants  did  all  manner  of  villein  services.  Therefore 
"  Quia  nullum  servicium  facit  nisi  predictos  denarios  et  servicia  nominata  nee  dat 
merchetum  pro  filia  nee  talliatus  est,  ideo  consideratum  est  quod  tenuit  libere." 

2  Vol.  i  179-180.  2  Vol.  ii  378  ;  below  204. 

^Watkins,  Copyholds  (4th  ed.  1828)  ii  454,  tells  us  that,  "Some  few  years  ago 
there  was  a  design  of  bringing  a  Bill  into  Parliament  for  regulating  the  fees  of 
Stewards  of  Manors,  but  the  Legislature  thought  it  much  too  delicate  a  matter  to 
interfere  in,  and  the  design  was  dropped  "  (cited  Webb,  Local  Government,  Manor 
and  Borough  71  n.  i). 

^  Below  206. 

VOL.   III.— 3 


34  THE  LAND  LAW 

direct  influence  of  the  royal  courts  two  centuries  later  than  lands 
held  by  free  tenure.  The  resulting  differences  in  substantive  law 
have  made  the  distinction  between  free  and  copyhold  tenure 
fundamental  in  our  modern  land  law. 

Free  Tenure  and  Chattels  Real 

The  real  actions  were  denied  alike  to  the  unfree  tenant  and 
to  the  man  who  held  for  a  term  of  years ;  and  therefore  the 
interest  of  the  lessee  for  years,  like  the  interest  of  the  unfree 
tenant,  falls  apart  from  the  law  relating  to  the  free  tenures.  But 
the  ground  upon  which  these  remedies  were  denied  to  the  lessee 
for  years  was  very  different  from  the  ground  upon  which  they 
were  denied  to  the  unfree  tenant.  The  denial  of  these  remedies 
to  the  lessee  for  years  was  not,  in  the  first  instance,  founded  upon 
any  great  social  or  economic  division.  It  was  founded,  as  we 
have  seen,  upon  an  arbitrary  and  unfortunate  application  of 
Roman  doctrines  of  possession.^  We  shall  see  that  the  subse- 
quent history  of  the  lessee  for  years  is  very  different  from  that 
of  the  unfree  tenant  The  interest  of  the  latter  is  gradually 
absorbed  into  the  law  of  real  property  under  the  name  of  copy- 
hold tenure.  The  interest  of  the  former  becomes  a  chattel  real 
and  remains  personal  property. 

§  3.  The  Free  Tenures  and  their  Incidents 
The  Free  Tenures 
(i)  Frankalmoin. 

"  Tenant  in  frankalmoin  is,  where  an  abbot  or  prior,  or  another 
man  of  religion,  or  of  holy  church,  holdeth  of  his  lord  in  frankal- 
moin, that  is  to  say  in  Latin,  in  liberam  elemosinam,  that  is,  in 
free  alms."^  The  word  eleniosina  means  simply  charity;  and  in 
Domesday  Book  land  given  for  a  charitable  motive,  e.g.  to  a 
blind  man,  is  said  to  be  given  in  elemosina.^  But,  as  we  have 
seen,  by  far  the  most  frequent  donees  of  land  given  out  of  charit- 
able motives  were  churches  and  monasteries.^  A  gift,  therefore, 
in  elemosina  comes  to  mean  a  gift  to  a  religious  person  or  body.^ 
But  the  land,  though  given  directly  to  the  religious  person  or 

1  Vol.  ii  205. 

2  Litt.  §  133 ;  cp.  Y.B.  30,  31  Ed.  I.  (R.S.)  484  for  a  curious  case  of  a  gift  to  an 
individual  for  life,  remainder  to  the  church.  The  land  was  not  held  in  frankalmoin 
till  the  life  dropped. 

3  P.  and  M.  i  219,  220,  citing  D.B.  i  293,  and  iv  466. 

4  Vol.  ii  68-69. 

^  P.  and  M.  i  220,  221,  ♦'  In  the  twelfth  century,  the  century  of  new  monastic 
jOTders,  of  lavish  endowments,  of  ecclesiastical  law,  the  gift  in  free,  pure,  and  perpetual 
alms  bas  a  well-known  meaning." 


THE  FREE  TENURES  85 

body,  was  regarded  as  given,  through  it,  to  God  and  the  saints.^ 
The  donor  no  doubt  expected  spiritual  benefits  from  the  prayers 
of  the  donees ;  but  as  the  land  was  primarily  regarded  as  given 
through  them  to  God,  no  very  definite  enumeration  of  the  services 
expected  could  be  made,  and  no  oath  of  fealty  could  be  required. 
It  did  not,  however,  always  follow  that  the  land  in  the  hands  of 
the  donees  owed  no  services  of  a  secular,  tangible  sort  Land  so 
given  might  be,  and  in  many  cases  was,  given  by  a  mesne  lord.^ 
That  lord  might  owe  military  service,  or  rent,  or  labour  services 
for  the  land.  The  mere  gift  could  not  free  the  land  from  liability 
to  perform  these  services.  To  effect  this  there  would  be  need  of 
the  consent  of  the  donor's  lord.  Therefore  for  land  held  in  frankal- 
moin  secular  services  were  often  due,  and  might  be  performed 
either  by  the  donor  or  by  his  donee  in  frankalmoin  according  to 
the  bargain  made  between  them  at  the  time  of  the  gift.^  More- 
over, it  was  not  impossible  that  even  as  between  donor  and  donee 
some  secular  service  might  be  reserved  if  the  gift  was  only  in 
"  free  and  perpetual  alms,"  and  not  in  "  free,  pure,  and  perpetual 
alms."* 

In  the  twelfth  and  thirteenth  centuries  the  characteristic 
which  distinguished  tenure  in  frankalmoin  from  other  tenures 
was,  not  so  much  the  absence  of  secular  service,  as  the  fact  that 
jurisdiction  over  land  so  held  belonged  to  the  ecclesiastical  courts. 
But  we  have  seen  that  by  the  end  of  the  thirteenth  century  this 
test  was  no  longer  applicable.^  The  jurisdiction  of  the  ecclesias- 
tical courts  over  land  was  limited  to  consecrated  land  or  buildings.^ 
The  king's  courts  had  assumed  a  jurisdiction  over  land  held  in 
frankalmoin  as  exclusive  as  that  assumed  by  them  over  land  held 
by  any  other  free  tenure.  What  then  was  the  distinguishing 
feature  of  this  tenure?  It  was  the  tenure  by  which  religious 
persons  or  bodies  held  land ;  but  the  fact  that  land  was  so  held 
afforded  no  proof  of  its  existence,  because  such  persons  or  bodies 
held  land  by  many  different  tenures.     A  better  test  was  found  in 

1  Bracton  f.  12,  "  Primo  et  principaliter  fit  donatio  Deo  et  ecclesiae  .  .  .  secundario 
canonicis  vel  monachis  vel  personis ;  "  the  saint  is  a  landowner  and  in  that  capacity 
may  be  guilty  of  trespass — so  it  is  written  in  Domesday  Book  concerning  Sanctus 
Paulus,  D.B.  ii  13,  cited  Ballard,  Domesday  Inquest  92. 

2  P.  and  M.  i  223,  224. 

3  Ibid  i  224  n.  i ;  cp.  Y.B.  12  Rich.  II.  178 — a  prior  holding  of  W.  in  frankalmoin 
Compels  W.  by  writ  of  mesne  to  acquit  him  of  the  services  which  W.  owes  to  his  lord 
the  Earl  of  Salisbury. 

^Bracton's  Note  Book  case  21,  land  was  demised  to  a  parson,  reserving  twelve 
pence  of  rent,  three  ploughings  and  ditchings,  and  twenty-one  shillings'  worth  of 
scutage;  the  court  of  Common  Pleas  says,  "plures  terrae  datae  sint  in  elemosinam 
ecclesiis  quarum  quadam  datae  sunt  in  liberam  puram  et  perpetuam  elemosinam, 
ilia  scilicet  que  nullum  faciunt  servicium,  alia  in  liberam  elemosinam  tantum,  scilicet 
ilia  que  faciunt  servicium  quod  ad  terram  illam  pertinet ;  "  Eynsham  Cart,  i  no,  25 
(1213-1225)  reservation  of  half  a  pound  of  cumin,  '♦  salvo  servitio  domini  regis." 

^  Vol.  ii  305.  "  Vol.  i  630. 


36  THE  LAND  LAW 

the  fact  that  it  was  land  held  with  no  obligation  of  fealty,  in 
return  for  services  of  a  general  character  due  to  God — services 
which,  not  being  capable  of  enforcement  by  ordinary  processes 
of  law,  were  only  capable  of  enforcement  by  spiritual  censures  ; 
and  this  absence  of  secular  service  is  the  test  adopted  by  the  law 
and  stated  by  Littleton.^  But  there  was  one  difficulty  about 
adopting  this  test.  What  was  to  be  the  position  of  lands  in 
which  some  definite  service  was  reserv^ed  ?  If  the  definite  service 
was  of  a  secular  kind,  like  that  mentioned  in  the  case  cited  from 
Bracton's  Note  Book,^  the  tenure  would  no  doubt  be  classed  as 
one  of  the  other  free  tenures — probably  socage.  If  it  was  of  a 
spiritual  kind  it  was  called  tenure  by  Divine  Service}  In  this 
case  fealty  was  due  to  the  lord,  and  he  could  distrain  if  the  services 
were  not  done,  "  because  the  divine  service  is  put  in  certain  by 
their  tenure  which  the  abbot  or  prior  ought  to  do."  "* 

The  effect  of  Edward  I.'s  legislation  was  to  make  tenure  in 
frankalmoin  a  tenure  of  diminishing  importance,  (i)  The  Statutes 
of  Mortmain  ^  prevented  indiscriminate  grants  of  land  to  the  re- 
ligious. (2)  If  a  religious  house  alienated  land  to  a  secular 
person  the  land  ceased  to  be  held  by  this  tenure,  because  no  secular 
person  could  hold  by  it.^  On  the  other  hand,  the  Statute  of 
Quia  Emptores  ^  prevented  any  person  from  granting  lands  in 
fee  simple  so  that  the  lands  were  held  of  him.  If  therefore  a 
tenant  by  knight  service  got  a  licence  in  mortmain  and  made  a 
grant  to  a  religious  house,  that  house  held,  not  of  the  grantor  in 
frankalmoin,  but  of  the  grantor's  lord  by  the  same  knight  service 
as  that  upon  which  the  grantor  had  formerly  held.^  (3)  In  the 
instance  just  given  the  grantee  could  not  hold  of  the  grantor's 
lord  in  frankalmoin,  even  if  the  lord  were  willing  that  he  should 
so  hold  ;  for  it  was  laid  down  that  lands  could  only  be  held  in 
frankalmoin  of  the  grantor  or  his  heirs.®  Thus,  if  an  abbot  held 
by  this  tenure  of  a  mesne  lord,  and  the  mesne  lord  died  without 
heirs,  the  abbot  could  not  hold  by  this  tenure  of  the  lord  para- 
mount.    He  held  of  such  lord  by  fealty.^"     As  Littleton  says," 

1  Litt.  §§  135,  136 ;  Y.B.  33-35  Ed.  I.  (R.S.)  206  per  Bereford  ;  "  libere  et  quiete 
sicut  elemosinam  decet,"  Eynsham  Cart,  i  nos.  85a,  87,  2og. 

2  Above  35  n.  4. 

^  Litt.  §  137,  «« Such  tenure  shall  not  be  said  to  be  tenure  in  frankalmoin,  but 
is  called  tenure  by  divine  service.  For  in  tenure  in  frankalmoin  no  mention  is  made 
of  any  manner  of  service ;  for  none  can  hold  in  frankalmoin,  if  there  be  expressed 
any  manner  of  certain  service  that  he  ought  to  do,  etc. ;  "  cp.  Y.B.  13,  14  Ed.  III. 
(R.S.)  282,  284. 

4  Litt.  §  137.  5  Vol.  ii  348-349  ;  below  86-87. 

«  Litt.  §  139.  7  Vol.  ii  348  ;  below  80-81. 

8  Litt.  §  140 ;  Y.B.  12  Ed.  IV.  Pasch.  pi.  7  (p.  4). 

'♦Y.B.  3  Ed.  XL  (S.S.)  i6g,  170,  "Frankalmoin  is  of  such  a  nature  that  the 
tenant  can  never  attorn  away  from  the  feoffor  nor  from  his  heirs  ;  "  Y.B.  13,  14  Ed. 
in.  (R.S.)  266,  268. 

10  Litt.  §  141  and  Y.B.  13,  14  Ed.  III.  (R.S.)  282.  "  §  140. 


THE  FREE  TENURES  37 

except  in  the  case  of  a  grant  by  the  king,  "  none  can  hold  in 
frankalmoin,  unless  it  be  by  title  of  prescription,  or  by  force  of  a 
grant  made  to  any  of  his  predecessors  before  the  same  statute 
(Quia  Emptores)  was  made."  This  stamps  it  as  a  stationary  and 
a  gradually  decaying  tenure. 

(ii)  Knight  Service. 

It  is  possible  that  a  person  who  had  not  read  anything  about 
tenure  by  knight  service  except  the  account  given  by  Littleton 
would  wonder  how  the  tenure  got  its  name.  He  would  read 
much  of  such  incidents  of  the  tenure  as  wardship  and  marriage  ^ 
— but  nothing  of  military  service.  He  would  learn  indeed  that 
such  tenants  paid  "  escuage  "  if  they  did  not  perform  in  person 
the  duty  of  castle  guard  ;  ^  but  he  might  wonder  why  this  pay- 
ment of  escuage  was  treated  differently  from  the  payment  of  rent 
which  was  due  from  the  socage  tenant.  It  is  true  that  if  he 
turned  to  Littleton's  chapter  on  Escuage  he  would  learn  that  it 
was  a  money  payment  connected  with  the  Latin  Scutagium,  and 
that  it  was  "  commonly  said  "  to  represent  the  personal  military 
service  originally  due  from  the  tenant  to  the  crown.  But  he 
would  also  learn  that  the  amount  which  could  be  levied  as  escuage 
was  dependent  upon  parliamentary  assessment ;  and,  seeing  that 
the  military  service  was  due  to  the  king,  he  might  wonder  why 
escuage  was  apparently  a  payment  made  by  the  tenant  to  his 
mesne  lord.^ 

The  difficulties  which  arise  in  understanding  Littleton's  account 
of  tenure  by  knight  service  show  that  by  the  fifteenth  century  it 
had  lost  its  original  meaning.  In  fact,  it  had  become  merely  a 
part  of  the  law  of  property.  But  it  had  once  been  far  more  than 
this.  Tenure  by  knight  service  was  the  typical  tenure  of  the 
feudal  system,  and,  as  we  have  seen,  the  feudal  system  was  far 
more  than  a  system  of  land  tenure.^  In  the  twelfth  century  a 
tenant  holding  by  this  tenure  often  filled  a  public  position  of  no 
mean  importance.  His  military  service  (in  theory)  protected  the 
state. ^  He  was  entitled  to  a  voice  in  the  commune  concilium.^ 
He  had  or  claimed  to  have  jurisdiction  over  his  tenants.''  But 
the  development  of  the  art  of  war,  the  growth  of  a  centralized 

iLitt.  §§  103-111,  114,  ii6.  2 §111. 

^  §  95,  "  Escuage  is  called  in  Latin  scutagium,  that  is  service  of  the  shield  ;  and 
that  tenant  which  holdeth  his  land  by  escuage  holdeth  by  knight  service ;  "  §  97,  "  It 
is  commonly  said  that  the  escuage  shall  be  assessed  and  put  in  certain ;  scil.  a  certain 
sum  of  money,  how  much  every  one  which  holdeth  by  a  whole  knight's  fee,  who  was 
neither  by  himself  nor  with  any  other  with  the  king,  shall  pay  to  his  lord  of  whom 
he  holds  the  land  by  escuage  ;  "  see  also  §§  100,  10 1. 

•»Vol.  i  17,  18. 

5  See  Vinogradoff,  English  Society  190,  191  for  the  old  idea  that  land  held  by 
such  persons  in  demesne  was  not  liable  to  geld. 

^  Magna  Carta  {1215)  c.  14.  '  Vol.  i  25-26,  176-178. 


38  THE  LAND  LAW 

government,  and  the  successful  competition  of  the  royal  courts 
had  gradually  diminished  the  importance  of  this  tenure  in  public 
law.  The  inefficiency  of  the  feudal  levy  for  any  prolonged 
campaign  had  soon  become  apparent,  and  tenure  by  barony 
ceased  to  be  a  title  to  a  seat  in  the  House  of  Lords. ^  The  tenant 
by  knight  service  found  his  remnant  of  jurisdiction  of  little  avail, 
and  was  often  glad  to  avail  himself  of  the  superior  processes  of 
the  courts  of  common  law.  The  same  causes  which  destroyed 
the  political  influence  of  feudalism  necessarily  destroyed  the  old 
meaning  of  tenure  by  knight  service.  The  old  state  of  society  in 
which  it  had  once  flourished  had  disappeared,  leaving,  as  we  have 
seen,  a  few  archaic  survivals  in  our  public  law,^  and  in  our  private 
law  leaving  this  tenure  in  the  position  described  by  Littleton. 
It  had  been  reduced  to  this  position  by  complicated  and  still  ob- 
scure processes,  the  outlines  of  which  I  must  now  endeavour  to 
trace. 

It  is  fairly  clear  that  William  I.  enfeoffed  his  followers  with 
tracts  of  English  land,  and  placed  them  under  the  obligation  of 
performing  in  return  a  certain  amount  of  military  service.  This 
military  service  was  the  service  due  {servitium  debitum)  for  the 
land  so  granted.^  The  arrangement  thus  made  was  the  origin  of 
tenure  by  knight  service  in  the  form  in  which  that  tenure  was 
known  to  the  common  law.  Existing  records  show  that  the 
large  landowners,  both  lay  and  ecclesiastical,  owed  for  their  lands 
a  definite  quota  of  knights.  The  time  for  which  the  knights  were 
required  to  serve  seems  to  have  been  early  fixed  at  the  period  of 
forty  days.*  But  as  to  the  exact  number  of  the  knights  which 
each  must  produce  there  was  often  some  uncertainty.  "The 
amount,"  says  Mr.  Round,  "of  the  servitium  debitum  was  a 
matter  of  custom  and  tradition,  and  could  not  usually  be  deter- 
mined by  reference  to  written  grants  or  charters."  ^  In  a  great 
many  of  these  cases  the  tenant  had  been  enfeoffed  since  the 
Conquest,  perhaps  without  charter.^'  But  as  a  rule  the  number 
of  knights  due  is  found  to  be  some  multiple  of  five  or  ten.     The 

^Vol.  i  357  and  n.  ii. 

-  See  vol.  i  179-187  for  the  manorial  jurisdiction  of  later  law. 

^  Vol.  ii  169. 

^  For  a  possible  explanation  of  the  "  forty  days  "  see  below  40 ;  as  Maitland 
says,  it  existed  "  rather  in  theory  than  practice,  and  its  theoretic  existence  can  hardly 
be  proved  for  England  out  of  any  authoritative  document;  "  but  it  was  known  in 
Normandy  both  before  and  after  the  Conquest,  Haskins,  Norman  Institutions  20,  21. 

°  Feudal  England  257,  citing  some  returns  made  to  the  inquest  of  1166,  e.g. 
William  fitz  Alan's  tenants  assert  "  that  his  Norfolk  fief  non  debet  domino  Regi  nisi 
i  militem  .  .  .  ut  antiqui  testantur ;  that  his  Shropshire  fief  non  debet  Regi  nisi  x 
milites  in  exercitu  .  .  .  sicut  antiqui  testantur ;  and  that,  as  to  his  Wiltshire  fief, 
non  sumus  certi  quod  servitium  debeat  Regi  de  hoc  tenement©. " 

8  Provisions  of  Westminster  1259  §  i  (Stubbs,  Sel.  Ch.  401) ;  Round,  loc  cit.  258  ; 
Vinogradoff,  English  Society  227. 


I 

I 


THE  FREE  TENURES  39 

reason  for  this  is,  Mr.  Round  thinks,  that  the  unit  of  the  feudal 
army  in  England  was  a  constabularia  of  ten  knights.  This  unit 
appears  in  the  reigns  of  Stephen  and  Henry  II.,  and  was  familiar 
to  the  Normans  in  Normandy.^ 

Thus  by  the  deliberate  acts  of  the  first  Norman  kings  the 
vague  conditions  of  land-holding  prevailing  in  the  country  were 
given  a  new  and  a  definite  form.  Tenants  in  chief  now  held  of 
the  crown  by  a  definite  military  service,  and  all  the  incidents  of 
that  tenure  familiar  to  the  Normans  were  introduced,  as  Henry 
I.'s  charter  shows.  At  the  same  time  it  is  probable  that,  just  as 
feudal  jurisdiction  was  nothing  very  new  to  the  older  inhabitants, 
so  land-holding  on  such  conditions  did  not  appear  to  them  to  be 
a  very  strange  thing.  They  were,  as  we  have  seen,  accustomed 
to  connect  with  land  ownership  both  military  service  and  the 
right  to  exercise  private  jurisdiction.  What  was  new  was  the 
substitution  of  one  definite  principle  for  the  older  confusion  caused 
by  lack  of  such  one  definite  principle.^ 

The  king's  relation  was  solely  with  his  tenants  in  chief.  It 
was  no  concern  of  his  what  they  did  with  their  land  so  long  as 
they  produced  their  knights  when  liable  to  do  so.  It  was,  of 
course,  the  policy  of  the  Norman  kings  to  emphasize  the  fact 
that  they  were  not  only  the  lords  of  tenants,  but  also  the  kings 
of  subjects.^  Thus  they  insisted,  and  insisted  successfully,  that 
military  service  was  due  to  no  one  but  the  king,  though  no  such 
rule  as  this  was  known  in  Normandy.*  But,  as  we  might  expect, 
it  is  their  capacity  of  lords  of  tenants  that  appears  to  predominate 
in  their  relations  to  their  tenants  by  knight  service.  This  is  very 
clearly  put  by  Mr.  Round.  "  Making  every  allowance,"  he  says, 
"  for  the  policy  of  the  Conqueror  in  insisting  on  the  direct  allegi- 
ance of  the  under-tenant  to  the  crown  .  .  .  the  fact  remains  that 
what  we  may  term  the  *  military  service '  bargain  was  a  bargain 
between  the  crown  and  the  tenant  in  chief,  not  between  the  crown 
and  his  under-tenants."  ^  The  tenant  in  chief  was  responsible 
to  the  king  for  his  service,  which  he  could  perform  either  by 

'  Feudal  England  259,  260.  ^Vol.  ii  74,  169-170;  vol.  i  24-25. 

3  P.  and  M.  i  249. 

^Ibid  243  ;  hence  military  service  was  par  excellence  "forinsec"  (vol.  ii  200) — 
it  was  always  due  to  the  crown. 

5  Feudal  England  248 ;  cp.  Ramsey  Cart,  ii  nos.  474,  476  for  the  arrangements 
made  by  the  abbot  for  the  performance  of  his  military  service  in  1244  and  1243  ;  for 
the  number  of  knights  enfeoffed  by  him  in  1184-1189  see  ibid  iii  nos.  548,  581;  it 
appears  (no.  548)  that  with  the  knights  there  were  enfeoffed,  "  Multi  frankelarmi, 
quorum  quidam  tenent  dimidiam  hidam,  quidam  plus,  quidam  minus,  et  debent  et 
Solent  adjuvare  milites  ad  servitium  faciendum;"  the  knights  themselves  served  in 
turn,  cp.  ibid  ii  nos.  474,  476,  and  ibid  iii  no.  550,  "  secundem  consuetudinem  ab- 
batiae  ;  "  for  a  statement  of  this  custom  see  ibid  iii  no.  556  ;  for  the  procedure  to  elect 
the  knights  to  serve  see  Select  Pleas  in  Manorial  Courts  (S.S.)  61,  63,  64,  77,  78,  80, 
84. 


40  THE  LAND  LAW 

enfeoffing  mesne  tenants,  or  by  hiring  knights,  or  in  any  other 
way  he  chose. 

Probably  in  the  first  years  after  the  Conquest  this  military 
tenure  was  really  military.  The  Normans  were  a  small  army  of 
soldiers  in  a  hostile  land,  and  it  was  to  the  tenants  in  chief  and 
to  their  Norman  mesne  tenants  that  the  king  looked  to  put  down 
English  insurrections.  But  even  when  tenure  by  knight  service 
really  was  a  military  tenure  it  is  probable  that  the  tenant  could 
perform  his  service  either  by  paying  a  substitute  or  by  making  a 
money  payment  to  the  person  to  whom  the  service  was  due. 
This  payment  is  known  as  scutage^  in  later  law.  Mr,  Round 
tells  us  that  "  payment  in  lieu  of  military  service,  which  was  the 
essential  principle  of  scutage,  was  (in  Henry  II.'s  reign)  no  new 
thing.  The  two  forms  which  this  payment  might  assume — pay- 
ment to  a  substitute  or  payment  to  the  crown — both  appear  in 
Domesday  as  applicable  to  the  fryd.  .  .  .  From  the  very  com- 
mencement of  knight  service  the  principle  must  have  prevailed, 
for  the  '  baron  '  who  had  not  enfeoffed  knights  enough  to  dis- 
charge his  servitium  debitum  must  always  have  hired  substitutes 
to  the  amount  of  the  balance.  ...  It  should  be  noted  as  a 
suggestive  fact  that  the  forty  days  of  military  service,  though 
bearing  no  direct  proportion  either  to  the  week  or  to  the  month, 
do  so  to  the  marc  and  to  the  pound.  The  former  represents  4d. 
and  the  latter  6d.  for  each  day  of  the  military  service."  ^  If  there 
is  any  connection  between  the  "  forty  days "  and  the  marc  or 
pound  it  would  seem  that  from  a  very  early  date  military  service 
was  regarded  as  capable  of  expression  in  terms  of  money. 

If  it  were  necessary  to  consider  only  the  relations  between 
the  king  and  his  tenants  in  chief  the  commutation  of  military 
service  for  money  would  present  fewer  difficulties.  But  we  must 
consider  also  the  relation  of  the  tenant  in  chief  to  his  mesne 
tenants.  The  tenant  in  chief  owed  his  service  to  the  crown  ;  the 
mesne  tenants  owed  their  services  to  their  lord.  The  former 
must  produce  his  quota  of  knights  or  pay  the  king ;  the  latter 
must  serve  or  pay  their  lord.  It  is  possible  that  if  a  tenant  in 
chief  enfeoffed  more  knights  than  the  quota  he  owed  to  the  king, 
he  could  pocket  the  amount  they  paid  him  in  commutation  of 
the  military  service  which  they  owed  to  him  and  he  did  not  owe 
to  the  crown.^     It  is  certainly  clear  that  we  must  distinguish  the 

'  Scutage  is  sometimes  used  to  cover  other  payments,  e.g.  the  aids  (below  66-67) 
to  which  the  lord  was  entitled, 

2  Feudal  England  270;  see  Vinogradoff,  English  Society  15,  16  for  the  current 
rates  of  pay  at  different  dates. 

3 Red  Book  of  the  Exchequer  (R.S.)  ii  clviii,  "In  extreme  cases,  indeed,  as  in 
that  of  the  military  service  prevalent  in  Normandy,  the  tenant  in  chief  would  be  en- 
titled to  receive  a  contribution  from  his  own  men  of  much  greater  value  than  that 
which  he  tendered  to  the  crown ;  "  P.  and  M,  i  244. 


THE  FREE  TENURES  41 

service  due  by  the  tenant  in  chief  to  the  crown,  or  the  money 
paid  in  commutation  of  this  service,  from  the  money  paid  by  the 
mesne  tenant  to  his  lord  in  commutation  of  similar  service.  The 
first  is  a  fine  of  an  indeterminate  amount,^  to  which  tenants  in 
chief  of  the  crown  ut  de  corona  ^  were  liable.  The  second  is  the 
fixed  sum  due  from  mesne  tenants  to  their  lord  ;  and  it  is  this 
sum  which  comes  to  be  known  as  scutage.  Madox  ^  saw  this 
distinction.  It  is  perhaps  most  clearly  brought  out  by  Mr.  Hall- 
in  his  introduction  to  the  Red  Book  of  the  Exchequer.*  "  The 
real  meaning  of  scutage,"  he  says,  "  is  derived  from  the  appear- 
ance of  the  tenant  in  the  king's  army,  as  certified  by  the  Scutage 
Rolls  of  the  Marshal,  in  order  to  qualify  himself  by  force  of  the 
king's  writ  '  to  have  his  scutage '  ^  on  his  return,  by  way  of  an 
authorized  levy  upon  his  own  sub-tenants.  In  this  aspect  the 
great  bulk  of  scutage  was  actually  collected  by  the  tenant  and 
not  by  the  crown,  and  there  is  really  no  evidence  that  the  current 
scale  of  one  marc  or  two  marcs  [on  the  knight's  fee]  .  .  .  was 
assessed  for  the  purpose  of  receiving  the  commuted  service  of  the 
lord,  rather  than  to  enable  the  latter  to  ascertain  the  amount  that 
he  would  be  authorized  in  levying  from  his  sub-tenants.  .  .  . 
The  constitutional  doctrine  prevailed,  unshaken  by  any  lax  excep- 
tions, that  the  tenant  in  chief  must  perform  his  due  service,  the 
v^alue  of  which  far  exceeded  in  all  times  the  average  value  of 
scutage.  Indeed,  when  personal  service  really  fell  into  disuse  in 
the  thirteenth  century,  the  value  of  the  equivalent  is  seen  in  the 
immense  fines  paid  by  the  military  tenants  *ne  transfretent.'  .  .  . 
The  proper  view  to  take  of  the  whole  question  would  seem  to  be 
this  :  (i)  That  the  tenants  in  chief  rendered  personal  service,  or 
a  more  or  less  real  equivalent  in  the  shape  of  payment  of  a 
deputy,  promissum,  donum,  fine,  or  simply  '  scutage,'  but  not 
necessarily  the  latter  alone  as  a  sufficient  commutation  in  all 
cases.  (2)  That  the  tenant  in  chief  who  had  thus  satisfied  the 
requirements  of  the  crown  might  or  might  not  obtain  in  turn 
facilities  for  recouping  himself  by  the  levy  of  scutage  from  his 
sub-tenants  at  a  proportionate  rate." 

Of  the  manner  in  which  many  pressing  questions  of  practical 
politics  were  intimately  bound  up  with  the  various  problems  and 
the  rival  interests  involved  in  tenure  by  knight  service  we  may 

^  P.  and  M.  i  247;  see  Ramsey  Cart,  iii  no.  510  for  a  list  of  these  sums  paid  by 
the  abbot  in  1313  and  1314. 

-A  tenant  "  ut  de  corona"  held  by  direct  grant  from  the  crown  :  a  tenant  "ut 
de  honore  "  held  of  the  crown,  but  only  because  the  lands  of  his  mesne  lord  had  come 
to  the  crown  by  escheat ;  generally  speaking  such  a  tenant,  though  holding  in  capite, 
was  in  the  same  position  as  a  mesne  tenant,  Magna  Carta  (1215)  c.  43  ;  Challis,  Real 
Property  4  n. 

^Exchequer  i  652,  657.  ^ii  clviii,  clix  ;  see  E.H.R.  xxxvii  321-324. 

^  See  App.  Ia  (5)  for  the  writ. 


42  THE  LAND  LAW 

read  at  large  in  our  constitutional  histories.  We  are  here  in- 
terested in  the  effects  which  the  policy  pursued  by  the  king  and 
by  the  greater  tenants  in  chief  produced  upon  this  tenure.  It  is 
to  such  political  or  constitutional  events  that  we  must  look  for 
an  explanation  of  the  curious  form  which,  as  we  have  seen,  it 
ultimately  assumed.  These  events  can  be  conveniently  grouped 
under  the  two  heads  of  royal  policy  and  the  growth  of  Parliament. 
(a)  Royal  policy.  Henry  II.  dreaded,  not  national  rebellions, 
but  feudal  disorder.  In  consequence  his  policy  was,  in  all  de- 
partments of  government,  anti-feudal.  We  have  already  seen 
that  his  royal  courts  began  the  process  of  subtracting  jurisdiction 
from  the  feudal  courts ;  and  it  is  clear  that  to  suppress  disorder  he 
needed  a  disciplined  band  of  paid  soldiers.  It  was  therefore  to 
his  interest  to  push  much  further  than  had  been  done  before  the 
policy  of  commuting  military  service  for  money  payments.  For 
other  reasons  the  tenants  in  chief  themselves  found  it  to  their 
interest  also  to  accept  money  payments  from  their  mesne  tenants 
instead  of  military  service.  In  a  more  orderly  state  of  society 
money  was  more  useful  than  armed  retainers.  Moreover,  the  free 
dealing  with  land  which,  as  we  shall  see,  was  encouraged  by  the 
royal  courts  ^  was  making  personal  service  impossible.  Knights' 
fees  were  so  split  up  that  the  service  due  could  only  be  expressed 
in  terms  of  money. ^  Both  the  king  and  the  tenants  in  chief 
therefore  favoured  commutation.  The  tenant  in  chief  paid  the 
king  a  sum  which  neyer  seems  to  have  been  definitely  fixed.^ 
The  king  allowed  the  tenant  in  chief  who  had  paid  to  levy  scut- 
age  from  his  mesne  tenants.^  As  we  might  expect,  Henry  II. 
was  careful  that,  in  the  process  of  commutation,  the  king's  in- 
terests did  not  suffer.  We  have  seen  that  if  the  tenant  in  chief 
enfeoffed  more  knights  than  he  owed  he  might  make  a  profit  out 
of  a  levy  of  scutage.^  From  Henry  II.'s  point  of  view  such  a 
profit  was  a  diversion  to  private  uses  of  money  which  should  have 

^  Below  77-78. 

2  P.  and  M.  i  235,  "Already  in  Henry  II.'s  reign  we  hear  of  the  twelfth,  the 
twenty-fourth  part  of  a  knight's  fee;  in  John's  reign  of  the  fortieth  ;  "  cp.  Y.B.  11, 
12  Ed.  III.  (R.S.)  64 — knight  service  might  be  combined  with  the  service  of  plough- 
ing and  still  be  knight  service. 

3  Red  Book  of  the  Exchequer  (R.S.)  ii  clix,  "What  the  nature  of  the  service  or 
what  the  equivalent  that  was  rendered  by  the  tenant  in  chief  to  the  crown  we  have 
absolutely  no  clear  information." 

^  Ibid  clx,  "  Scutage  was  a  contribution  paid  by  the  tenants  whose  service  was 
neither  expected  nor  desired  by  their  lord,  and  had  little  to  do  with  his  personal 
service  or  with  any  special  bargain  with  the  crown  for  commutation  thereof.  In 
this  aspect  the  lord  appears  as  a  sort  of  middleman  in  connection  with  the  assess- 
ment of  a  scutage.  He  kept  the  crown  informed  of  the  exact  liabilities  of  his  sub- 
tenants, and  contracted  as  it  were  by  payment  of  personal  service,  or  of  a  donum, 
^ne,  promissum,  or  'scutage'  for  their  scutages,  which  were  thereupon  recognized 
as  his  scutages." 

^  Vol.  ii  183-184  ;  above  40. 

ll 


THE  FREE  TENURES  48 

helped  to  defray  the  cost  of  national  defence.  It  was  for  this 
reason  that  in  1 166  he  required  all  tenants  in  chief  to  inform  him 
(i)  how  many  knights  had  been  enfeoffed  before  the  death  of 
Henry  I. ;  (2)  how  many  had  been  enfeoffed  since  ;  (3)  how  many 
remained  to  be  enfeoffed  to  satisfy  the  service  due  for  the  land. 
When  the  returns  were  sent  in  the  king  could  see  whether  his 
tenants  had  enfeoffed  more  knights  than  were  required  to  fulfil 
the  service  due  for  the  land.  If  he  found  that  they  had  enfeoffed 
more,  he  increased  the  service  due  to  that  extent.^  Though, 
therefore,  the  king  had  no  direct  interest  in  the  scutages  due  from 
the  mesne  tenant  to  the  mesne  lord  he  was  determined  that  the 
mesne  lord  should  not  appropriate  to  himself  all  the  increase  in 
profits — all  the  **  unearned  increment " — of  the  land  ;  and  it  is 
easy  to  see  that  such  a  policy  tended  to  stop  the  growth  of  this 
tenure,  because  it  meant  that  the  mesne  lord  could  get  no  profit 
out  of  either  the  military  service  or  the  scutage  taken  in  lieu 
thereof.^ 

In  course  of  time  the  direct  interest  of  the  king  in  the  scutages 
payable  by  the  mesne  tenants  tended  to  increase.  From  Henry 
III.'s  reign  onwards  the  tenants  in  chief  sometimes  granted  to 
the  king  the  scutage  of  their  tenants.^  The  king  then  levied  the 
scutage  through  the  sheriff"  just  as  if  it  had  been  a  national  tax. 
In  fact,  the  decay  of  feudal  jurisdiction  made  it  increasingly  diffi- 
cult for  a  lord  to  collect  his  scutage  without  the  aid  of  the  sheriff".^ 
If  lands  escheated  to  the  crown,  the  tenant  held  these  lands  from 
the  crown  ut  de  honor e}  The  scutages  formerly  payable  to  the 
mesne  lord  were  now  payable  to  the  king.^  If  the  king  made  a 
grant  of  a  manor  to  be  held  of  himself  by  knight  service,  the 
grantee  was  answerable  for  scutage ;  but  he  could  not  exact  such 
scutage  from  the  tenants  of  the  manor  if  they  had  not  rendered 
military  service   to   the  king  when  part  of  his  demesne.^     The 

^  Round,  Feudal  England  236-246;  to  take  an  example  at  p.  242,  Walter  de 
Aincurt  returns  24  fees  de  veteri,  5  de  novo,  and  11  super  dominium.  In  1168  the 
Exchequer  records  him  as  paying  on  35  fees  de  veteri  and  on  5  de  novo. 

=^Red  Book  of  the  Exchequer  (R.S.)  ii  ccxxxv,  vi,  "  In  Normandy,  as  elsewhere 
on  the  continent,  this  custom  [of  enfeoffing  more  knights  than  were  needed  to  perform 
the  servitium  debitum]  receives  its  chief  encouragement  from  the  prevalence  of  private 
warfare.  In  England  it  seems  to  have  been  used  chiefly  as  a  means  of  seignorial  ex- 
tortion, which  was  practically  interdicted  in  the  reign  of  Henry  II.  by  the  simple 
device  of  rendering  the  tenant  in  chief  liable  for  scutage  on  one  and  all  of  his  impro- 
vident enfeoffments,  .  .  .  We  have  in  the  next  century  the  strange  spectacle  of  a 
distraint  of  knighthood  to  restore  the  shrunken  proportions  of  military  service." 

s  Ibid  clx  ;  Stubbs,  C.H.  ii  64  n.  2. 

^  Madox,  Exchequer  i  675,  679,  680  n.  m  ;  in  a  note  in  Y.B.  33-35  Ed.  I.  (R.S.) 
234  the  need  for  such  a  writ  in  all  cases  seems  to  be  assumed  ;  similarly  the  lord 
could  take  proceedings  in  the  king's  courts  to  collect  his  aids,  below  66. 

^  Above  41  n.  2. 

^  Madox,  Exchequer  i  652,  citing  two  cases  of  Edward  II.'s  reign. 

'  Ibid  678  n.  i. 


44  THE  LAND  LAW 

ultimate  effect  of  the  statute  Quia  Emptores  was  to  increase  the 
number  of  persons  who  held  directly  of  the  king — to  increase 
therefore  the  number  of  cases  in  which  the  king  was  directly 
entitled  to  scutage.  For  these  reasons  scutage  becomes  far 
more  important  than  the  fines  payable  by  the  original  tenants  in 
chief  for  not  performing  their  servitiuni  debituni.  Scutage  is 
mentioned  specifically  by  Littleton,  and  by  the  Act  which  abolished 
tenure  by  knight  service  in  Charles  II.'s  reign  ;  ^  whereas  there  is 
hardly  a  hint  in  either  place  of  the  fines  payable  by  the  tenant  in 
chiefs  One  of  the  last  references  to  the  personal  liability  of 
tenants  in  chief  seems  to  be  in  an  Act  of  i  503  which  provided  that 
persons  having  lands  of  the  king's  gift  should  forfeit  them  if,  with- 
out reasonable  excuse,  they  omitted  to  "  geve  theyr  dayly  attend- 
aunce  in  their  persones  upon  his  Highnesse  when  he  shall  fortune 
to  goo  in  Warres  within  this  his  Realme  or  elsewhere  ...  in  his 
personne."  ^  But  this  was  a  different  and  a  less  onerous  liability, 
as  it  did  not  apply  to  tenants  who  had  purchased  their  lands  of 
the  king.^  It  is  no  doubt  for  these  reasons  that  it  came  to 
be  thought  that  scutage  had  always  been  merely  the  sum  paid  by 
all  tenants  by  knight  service — ^whether  tenants  in  capite  or  mesne 
tenants — as  commutation  for  their  military  duties.  As  we  have 
seen,  this  came  to  be  substantially  true  by  a  very  gradual  process, 
but  we  shall  now  see  that  even  before  this  process  was  complete, 
scutage  had  ceased  to  be  levied  for  reasons  now  to  be  considered. 
{U)  The  growth  of  Parliament.  The  inquest  of  1 166  showed, 
as  we  have  seen,  that  the  king  wished  to  share  any  surplus  profits 
made  by  his  tenants  in  chief  The  Charter  of  1215^  introduced 
a  clause  which  limited  the  king's  rights  in  this  respect.  For  the 
future  no  scutage  was  to  be  imposed,  "  nisi  per  commune  concilium." 
This  clause  was  not  repeated  in  the  reissue  of  the  charter  in  1216  ; 
but  in  1 217  it  was  provided  that  scutage  should  be  taken  "  sicut 
capi  consuevit  tempore  Henrici  regis  avi  nostri."  ^  But  in  fact 
consent  to  a  levy  of  scutage  was  usually  asked  ;  ^  and  when  the 
constitution  of  Parliament  became  fixed,  Parliament  claimed  to 
exercise  the  same  control  over  the  levy  of  scutage  as  it  claimed 
to  exercise  over  the  other  forms  of  direct  taxation.^     As  a  result 

^  12  Charles  II.  c.  24. 

^  §  2  of  the  statute  mentions  "  tenure  by  homage,  escuage,  voyages  royal,  and 
charges  for  the  same ;  "  it  may  be  that  the  term  "  voyages  royal  "  is  a  reminiscence 
of  these  payments  ;  cp.  Litt.  §  95. 

3  R.P.  vi  525-526  (19  Hy.  VII  no.  4).  *  Ibid  526.  "  §  12. 

«  §  44  ;  Stubbs,  C.H.  ii  28  n.  2.  '  Ibid  28  n.  2,  32  n.  i,  64. 

« Ibid  569,  "The  scutages  so  frequent  under  John  and  Henry  III.  had  ceased 
to  be  remunerative.  The  few  taxes  of  the  kind  raised  by  Edward  I.  seem  to 
have  been  collected  almost  as  an  afterthought,  or  by  a  recurrence  to  the  old  idea  of 
scutage  as  commutation  for  personal  service  .  .  .  The  scutages  of  the  28th,  31st,  and 
34th  years  of  the  reign  appear  so  late  in  the  reign  of  Edward  II.  as  to  seem  nothing 
better  than  a  lame  expedient  for  pecuniary  exaction  ;  "  see  E.H.R.  xxxvii  324  seqq. 


THE  FREE  TENURES  45 

scutage  seems  to  have  been  superseded  by  other  and  newer  forms 
of  taxation.  There  is  one  instance  of  its  levy  in  Edward  II.'s 
reign,  and  another  in  Edward  III.'s  reign. ^  It  was  remitted  in 
1385  by  Richard  11.^  After  that  we  hear  no  more  of  it  except 
its  formal  abolition  in  1660.^ 

Thus  by  the  fourteenth  century  tenure  by  knight  service  had 
ceased  to  provide  either  soldiers  or  their  pay.  The  armies  which 
fought  in  the  Hundred  Years'  War  were  armies  of  paid  soldiers, 
raised  by  contracts  made  between  the  crown  and  the  great  nobles.'* 
The  money  payments  for  which  the  actual  military  service  had 
been  commuted  had  come  to  depend  on  parliamentary  grant.  Their 
amount  was  not  sufficient  to  keep  on  foot  an  army  for  foreign 
war ;  and  Parliament  preferred,  and  in  fact  was  obliged,  to  raise 
the  money  required  for  such  an  army  in  other  ways.  "  If,"  says 
Maitland,  "  tenure  by  knight  service  had  been  abolished  in  1 300 
the  kings  of  the  subsequent  ages  would  have  been  deprived  of  the 
large  revenue  that  they  drew  from  wardships,  marriages,  and  so 
forth  ;  really  they  would  have  lost  little  else."  ^ 

The  history  of  tenure  by  knight  service  is,  as  I  have  said,  a 
history  of  the  gradual  disappearance  of  the  elements  in  it  which 
once  gave  it  importance  in  public  law,  and  of  its  gradual  conver- 
sion into  a  form  of  land-holding  and  nothing  more.  It  is  because 
its  history  has  taken  this  course  that  English  law,  although  it 
knows  a  barony  or  an  honour,  knows  no  tenure  by  barony.^  The 
baron  paid  a  higher  relief ;  ^  but  except  in  that  one  point  there  is 
nothing  to  distinguish  his  tenure  from  tenure  by  knight  service. 
From  the  first  it  was  not  the  quality  but  the  size  of  the  holding 
which  distinguished  the  baron  from  other  tenants  in  chief  of  the 
crown.  No  doubt  a  holding  of  a  certain  size  in  1 2 1 5  entitled  the 
baron  to  an  individual  summons  to  the  commune  concilium.  But 
as  tenure  of  land  came  to  be  more  and  more  a  matter  of  private 
law  merely,  the  barony  by  tenure  came  to  look  more  and  more 
anomalous,  and  as  we  have  seen,  it  finally  disappeared.^  From 
this  point  of  view  its  disappearance  is  a  phenomenon  of  the  same 
kind  as  the  disappearance  of  the  military  duties  involved  in  tenure 

^  See  P.  and  M.  i  232  n.  for  a  list  of  scutages  levied. 

^^  Stubbs,  C.H.  ii  569.  3  12  Charles  II.  c.  24  §  2. 

*  Stubbs,  C.H.  iii  582,  583.  ^  p_  and  M.  i  256. 

"  Ibid  259 ;  on  the  whole  subject  see  Tait,  Manchester  182-197  5  ^^^  the 
honour  "  see  Vinogradoff,  English  Society  348,  349. 

'  Below  60. 

^  Vol.  i  357  and  n.  11.  In  early  days  the  honours  and  baronies  were  kept  intact 
:ause,  as  Challis  says,  to  have  severed  them  '•  would  have  disarranged  both  the 
)litical  and  the  military  organization  of  the  kingdom,"  Real  Property  5  n.  How- 
ler, this  was  occasionally  done  ;  see  instances  from  the  reigns  of  Henry  II.  to 
Edward  I.,  Madox,  Bar.  Angl.  44-50.  In  later  days,  when  this  reason  ceased  to 
^pply,  when  such  tenure  became  merely  a  matter  of  land-holding,  "  land-baronies 
^ere  divided  and  subdivided  till  at  length  they  were  brought  to  nought,"  ibid  59. 


46  THE  LAND  LAW 

by  knight  service.  Both  illustrate  the  passing  of  the  feudal  ideas 
which  connected  the  government  of  the  state  with  the  holding  of 
land. 

(iii)  Serjeanty. 

Serjeanty  means  service.  The  serjeant  means  primarily  one 
who  serves.  As  we  have  seen,  those  who  follow  and  serve  the 
law  are  the  serjeants-at-law.  Tenure  by  serjeanty  means,  there- 
fore, tenure  by  service.  All  the  tenures  imply  service  of  some 
sort.  Indeed,  the  whole  of  mediaeval  society  is  held  together  by 
the  services  of  tenants — the  church  is  endowed,  the  kingdom  is 
defended,  the  land  is  cultivated.  But  that  which  distinguishes 
the  service  of  one  who  holds  by  serjeanty  from  the  service  of  one 
who  holds  by  the  other  tenures  is  the  fact  that  the  service  of  the 
Serjeant  is  a  pre-eminently  personal  service.  We  at  the  present 
day  sometimes  use  the  term  "  service  "  to  mean  the  calling  of  the 
domestic  servant — we  talk  of  going  into  service — though  we  know 
well  that  all  employment  involves  service.  When  we  use  the 
term  "  service  "  in  this  restricted  sense  we  mean  to  emphasize  the 
same  personal  or  domestic  character  of  the  employment  as  the 
lawyer  of  the  twelfth  and  thirteenth  century  emphasized  when  he 
talked  of  tenure  by  serjeanty.^ 

The  tenants  by  serjeanty  are  no  doubt  the  descendants  of  the 
servientes  of  Domesday  Book,  who  held  land  in  many  counties  as 
the  servants,  in  many  capacities,  of  the  king  and  the  great  nobles  ^ 
— in  so  many  capacities  that  Domesday  Book  rarely  states  the 
precise  nature  of  their  services.^  By  the  end  of  the  twelfth  cen- 
tury we  can  see  from  Glanvil  that  the  tenure  of  the  serviens  has 
become  the  special  tenure  by  serjeanty  ;  ^  and,  even  when  the 
personal  service  due  from  other  tenants  had  become  a  thing  of 
the  past,  the  personal  character  of  the  service  due  from  the 
Serjeant,  or  serviens,  remained,  and  accounted  for  many  of  the 
peculiar  features  of  the  tenure  as  it  existed  in  the  thirteenth  cen- 
tury. Thus  the  service  could  not  be  commuted  for  a  money 
payment,  and  therefore  no  scutage  was  due.^  The  land  held  by 
serjeanty,  because  it  was  held  in  return  for  personal  service,  used 

^  P.  and  M.  i  262,  267. 

2  Ibid  268,  269,  "  Among  the  Wiltshire  Servientes  are  three  chamberlains 
(camerarii),  a  hoarder  [granatarius),  and  a  cross-bowman  (arbalistarius) ;  else- 
where are  an  archer,  an  usher,  a  goldsmith,  a  baker,  a  bedchamber  man  .  .  .  there 
can  be  little  risk  in  finding  the  ancestors  in  law  of  Bracton's  rod  knights,  and  the 
abbot  of  Ramsey's  ridemanni  in  the  radchenistres  and  radmanni  of  Domesday  Book." 

3  Ballard,  Domesday  Inquest  105  ;  cp.  Vinogradoff,  English  Society  60-62  ;  see 
ibid  72-74  for  the  "  Francigenae  "  class  of  servientes,  who  were  chiefly  of  the  military 
sort. 

^  Vol.  ii  201. 

^  Litt.  §  158 ;  cp.  McKechnie,  Magna  Carta  55-56. 


THE  FREE  TENURES  47 

to  go  back  to  the  donor  when  the  tenant  died  ;  and  though  in  the 
thirteenth  century  such  land  descended  to  the  heir,  we  can  see 
a  reminiscence  of  the  older  idea  in  the  fact  that  the  relief  was 
arbitrary.^  When  hereditary  succession  was  allowed,  the  land  was 
never  partitioned — even  when  daughters  inherit — because  such 
personal  service  cannot  be  partitioned.^  Though  the  tenants  of 
lands  held  by  other  tenures  acquired  the  right  to  alienate,  lands 
held  by  serjeanty  long  remained  inalienable.^  In  such  rules  as 
these  we  see  not  only  striking  illustrations  of  the  meaning  and 
character  of  this  tenure,  but  also  the  survival  of  older  ideas  which 
once  shaped  some  of  the  incidents  of  the  other  tenures — especially 
tenure  by  knight  service — in  the  days  when  the  services  due  for 
land  were  really  personal  services,  and  not  merely  the  perform- 
ance of  duties  which  could  be  performed  by  deputy  or  commuted 
for  a  money  payment. 

In  the  twelfth  and  thirteenth  centuries  tenure  by  serjeanty 
still  covered  a  wide  field.  Lands  were  held  by  this  tenure  both 
of  the  crown  and  of  mesne  lords,^  and  the  services  reserved  were 
very  various.  We  may  divide  these  services  into  two  main 
classes — those  which  were  not  military  and  those  which  were 
military. 

The  non-military  class. 

Of  the  non-military  serjeanties  we  must  place  first  the  various 
species  of  service  owed  to  the  king  by  his  tenants  in  chief  holding 
by  this  tenure.  Among  these  tenants  the  great  officials  of  the 
kingdom  or  the  royal  household,  who  held  the  great  hereditary 
serjeanties,  take  the  first  place.  "  Tenant  by  Grand  Serjeanty  is 
where  a  man  holds  his  lands  or  tenements  of  our  sovereign  lord 
the  King  by  such  services  as  he  ought  to  do  in  his  proper  person 
to  the  King,  as  to  carry  the  banner  of  the  King,  or  his  lance,  or  to 
lead  his  army,  or  to  be  his  marshal,  or  to  carry  his  sword  before 
him  at  his  coronation,  or  to  be  his  sewer  at  his  coronation,  or  his 
carver,  or  his  butler,  or  to  be  one  of  the  chamberlains  of  the 
receipt  of  his  Exchequer,  or  to  do  other  like  services,  etc."  ^ 
ilready  in  the  thirteenth  century  they  were  regarded  rather  as 
>nferring  dignity  than  as  involving  service.  In  1236,  when 
[enry  III.'s  queen  was  crowned,  there  was  much  dispute  among 
le  magnates  as  to  who  was  entitled  to  bear  a  sword  before  the 

^  Bracton  f.  84b ;  it  had  become  fixed  by  1410,  Y.B.  11  Hy.  IV.  Trin.  pi.  9,  cited 
and  M.  270  n.  3  ;  Litt.  §  154. 

2  P,  and  M.  i  270  n.  4.  sjbid  315,  316. 

*Ibid  265;  Bracton  f.  35b,  "Item  poterit  quis  feoffare  alium  per  serjanteriam 
lae  quidem  multiplex  esse  poterit  et  unde  quaedam  pertinent  ad  ipsum  dominum 
iffantem,  et  quaedam  ad  ipsum  regem," 

6  Litt.  §  153. 


48  THE  LAND  LAW 

king,  and  as  to  who  was  entitled  to  act  as  his  seneschal.^  We 
see  the  causes  at  work  which  will  give  to  these  honourable 
services  a  longer  life  than  the  actual  tenure.  Besides  these  great 
Serjeants  many  tenants  held  by  the  tenure  of  doing  an  almost 
infinite  variety  of  humbler  services.  There  are  serjeanties  con- 
nected with  hawking  and  hunting,  with  the  forests,  with  carrying 
duties,  with  bee-keeping,  with  agricultural  duties,  with  eating  and 
drinking,  with  the  washing  and  drying  of  clothes,  with  various 
branches  of  the  civil  service.^  In  fact,  the  list  of  serjeanties  com- 
prises most  of  the  needs  of  the  royal  household,  and  many  of  the 
needs  of  the  government  of  the  state. 

What  the  king  does  the  magnates  imitate.  Their  personal 
needs,  and  the  staff  required  to  administer  their  estates,  were 
supplied  by  letting  lands  to  be  held  by  serjeanty.  There  were 
the  servants  who  looked  after  the  household  accounts,  the  ward- 
robe, the  kitchen,  and  the  person  of  the  lord  ;  there  were  the 
servants  who  looked  after  the  agricultural  arrangements  of  the 
estate ;  and  there  were  the  servants  who  looked  after  the  juris- 
dictional rights  involved  in  the  manor. ^  The  importance  of  this 
class  of  tenants  by  serjeanty  was  very  great.  It  is  difficult  at  the 
present  day,  as  Sir  Paul  Vinogradoff  has  pointed  out,  to  realise 
this  importance.  "We  live  in  a  time  of  free  contract,  credit, 
highly  mobilized  currency,  easy  means  of  communication,  and 
powerful  political  organization.  .  .  .  Every  feature  of  the 
mediaeval  system  which  tended  to  disconnect  adjoining  localities, 
to  cut  up  the  country  into  a  series  of  isolated  units,  contributed 
at  the  same  time  to  raise  a  class  which  acted  as  a  kind  of  nervous 
system,  connecting  the  different  parts  with  a  common  centre,  and 
establishing  national  intercourse  and  hierarchical  relations.  The 
libertinihdid  to  fulfil  kindred  functions  in  the  ancient  world,  but  their 
importance  was  hardly  so  great  as  that  of  mediaeval  Serjeants  or 
ministeriales.  .  .  .  The  first  cook  and  gatekeeper  of  a  celebrated 
abbey  were  real  magnates  who  held  their  offices  by  hereditary 
succession,  and  were  enfeoffed  with  considerable  estates.  ...  At 
every  step  we  find  in  the  cartularies  of  Glastonbury  Abbey  proofs 
of  the  existence  of  a  numerous  and  powerful  *  serjeant '  class."  ^ 

1  Red  Book  of  the  Exchequer  (R.S.)  ii  756,  757 — •*  Factae  sunt  contentiones 
magnae  de  servitiis  ministerialium  domus  Regis  et  de  juribus  pertinentibus  ad  eorum 
ministeria." 

2  Ibid  451-468,  De  Serjantiis  in  Diversis  Comitatibus  Angliae. 

*  Vinogradoff,  Villeinage  317-320;  cp.  Bracton  f.  35b,  "  Servitia  tenendi  placita 
dominorum  suorum,  vel  portandi  brevia  infra  certa  loca,  vel  pascendi  leporarios  et 
canes,  vel  mutandi  aves,  vel  inveniendi  arcus  et  sagittas,  vel  portandi,  et  de  iis 
serjantiis  non  poterit  certus  numerus  comprehendi ;  "  cp.  Eynsham  Cart,  i,  nos.  32S, 
360,  365.  391,  453.  496,  542,  544. 

^Villeinage  323,  324;  for  this  class  of  ministeriales  in  Germany  see  Schulte, 
Histoire  du  Droit  D'AUemagne  (Tr.  Fournier)  269-272. 


THE  FREE  TENURES  49 

The  military  class. 

In  the  twelfth  and  thirteenth  centuries  the  military  serjeanties 
were  as  important  as  those  which  were  non-military.  They  sup- 
plied the  feudal  army  with  light  auxiliary  troops,  with  attendants 
upon  the  fully-armed  knights,  with  material  for  war,  with  "  the 
means  of  military  transport."^  Such  services  as  these  were  due, 
not  to  the  king  only,  but  also  to  the  mesne  lord.  The  lord,  when 
he  went  to  war  in  person,  needed  Serjeants  to  attend  upon  him ; 
and  at  all  times  the  want  of  an  adequate  police  force  necessitated 
a  retinue  of  followers  to  protect  person  and  property.^  The 
military  service  of  these  humbler  members  of  the  feudal  army  had 
perhaps  a  longer  life  than  the  military  service  of  the  tenant  by 
knight  service ;  but  it  too  disappeared.  "  Such  a  tenant  ought 
not  to  go,  nor  do  anything  in  his  proper  person  touching  the 
war."  ^  It  became  merely  a  duty  to  supply  certain  small 
munitions  of  war.^  For  all  that  the  tenure  retained,  even  then,  a 
slightly  more  direct  connection  with  war  than  tenure  by  knight 
service;  and  in  the  popular  language  of  modern  times  the 
Serjeant,  unlike  the  knight,  is  still  connected  with  the  army. 

We  must  now  turn  to  the  causes  which  led  to  the  decay  of 
this  tenure.  The  system  of  paying  servants  by  granting  them 
land  to  be  held  by  serjeanty  was  in  many  ways  inconvenient  and 
costly.  The  office  and  the  land  became  hereditary.  We  get 
that  confusion  between  office  and  property  which  was  long 
an  effectual  hindrance  to  efficiency  and  reform  both  in  the 
judicial  and  in  many  other  departments  of  the  state.  ^  This 
confusion  can  be  seen  not  only  among  the  serjeanties  held  of  the 
crown,  but  also  among  those  held  of  mesne  lords.  "John  of 
Norwood,  abbot  of  Bury  St.  Edmunds,  had  to  resort  to  a  regular 
coup  d'etat  in  order  to  displace  the  privileged  families  which  had 
got  hold  of  the  offices  and  treated  them  as  hereditary  property."  ^ 
We  were  not  surprised,  therefore,  to  find  that  in  the  fourteenth 
century  there  is  a  growing  tendency  to  substitute  the  contract 
with  the  hired  servant  for  the  status  of  the  tenant  who  holds  by 
serjeanty ;  and  in  many  cases  the  tenure  by  serjeanty  is  turned 

^  P.  and  M.  i  264,  265 ;  Bracton  f.  36,  "  Per  servitium  inveniendi  domino 
regi  .  .  .  unum  hominem  et  unum  equum  et  saccum  cum  brochia  pro  aliqua 
necessitate  vel  utilitate  exercitum  suum  contingente." 

2  See  Bracton's  Note  Book  case  758 — the  case  of  the  abbess  of  Barking,  who 
had  thirty  tenants  who  •*  solent  ire  cum  Abbatissis  vel  cum  senescallis  suis  quo  ipse 
voluerunt  ad  maneria  sua."  As  Sir  Paul  Vinogradoff  points  out,  some  of  the 
"milites"  mentioned  in  D.B.  were  probably  tenants  by  serjeanty  of  later  law, 
English  Society  77-79  ;  the  Anglo-Saxon  thane — the  predecessor  of  the  "  miles  " — 
really  occupied  this  double  position,  ibid  403,  404. 

^  Litt.  §  160 ;  if  the  duty  was  to  find  a  man  to  go  to  war  or  to  go  in  person  the 
tenure  was  grand  serjeanty,  ibid  §  157. 

*§  159.  "  Small  things  belonging  to  war." 

^Vol.  i  246-250,  424-425.  *  Vinogradoff,  Villeinage  325. 

VOL.  ni.--4 


50  THE  LAND  LAW 

into  tenure  by  socage.^  Both  the  king  and  the  mesne  lord  found 
it  paid  better  to  take  rent  for  their  lands  and  to  hire  servants 
than  to  enfeoff  tenants  to  hold  by  serjeanty.^  It  is  clear  that 
this  change  in  the  economic  ordering  of  society  tends  to  destroy 
the  largest  and  perhaps  the  most  powerful  class  of  the  tenants  by 
serjeanty. 

As  a  result  little  was  left  of  tenure  by  serjeanty  except  the 
tenure  of  those  who  held  by  the  dignified  serjeanties  of  perform- 
ing various  ceremonial  services  for  the  king  on  solemn  occasions, 
and  the  tenure  of  those  who  held  by  doing  some  service  pertain- 
ing to  war.  Already  in  Britton's  day  serjeanty  was  specially  but 
not  exclusively  connected  with  war ;  ^  and  when  once  this  con- 
nection had  been  established  it  is  easy  to  see  how  the  idea  arose 
that  all  tenure  by  serjeanty  must  be  tenure  in  chief."*  Such  warlike 
services  could,  according  to  the  established  principles  of  English 
law,  only  be  rendered  to  the  crown.  ^  Britton,  who  connects  the 
services  involved  in  serjeanty  with  war,  seems  to  hint  that  tenure 
by  serjeanty  must  be  tenure  in  chief.^  Both  these  ideas  had 
hardened  into  fixed  rules  when  Littleton  wrote.'' 

It  is  clear  that  there  is  a  broad  social  line  between  these  two 
surviving  cases  of  tenure  by  serjeanty.  This  difference  is  ex- 
pressed by  the  use  of  the  terms  "grand"  and  "petit."  These 
terms  are  used  both  by  Bracton^  and  by  Britton.^  But  they  are 
not  yet  technical  terms  which  express  two  settled  varieties  of  the 
same  tenure  ;  they  express  rather  the  substantial  difference  be- 
tween the  nature  or  kind  of  the  services  due.^*^  That  they  came 
to  have  a  technical  meaning  was  probably  due  to  the  need  for 
settling  the  question  whether  tenure  by  serjeanty  gave  rise  to  the 
incidents  of  wardship  and  marriage.^^  In  the  charter  of  12 15 
John  had  promised  that  he  would  not  claim  wardship  on  account 
of  any  "  small  serjeanty."  ^^     As  the  greater  number  of  the  older 

^  P.  and  M.  i  315 — Serjeanties  which  had  been  ahenated  were  arrented,  i.e. 
changed  into  knight's  service  or  socage;  cp.  Ejoisham  Cart,  i,  no.  459. 

2 See  below  205,  for  a  similar  process  in  the  case  of  the  villein  tenants; 
Madox,  Form.  nos.  176,  183,  gives  specimens  of  deeds  by  which  men  were  retained 
for  a  fixed  sum. 

^ii  5  and  n.  a  from  MS.  A^;  cp.  ibid  10 — "to  be  keeper  of  our  goshawks"  is 
given  as  an  illustration  of  grand  serjeanty. 

^Litt.  §161.  5  Above  39. 

^ii  10  and  n.  g;  cp.  Bracton  f.  35b,  "Sunt  et  alia  genera  serjantiae  quae  ad 
dominum  capitalem  non  pertinent  sed  ad  dominum  regem  pro  exercitu  regis  ad 
patriae  tuitionem." 

'^§§  158,  161.  *ff35b,  87b;  cp.  P.  and  M.  i  304.  "  ii  5,  10. 

^0  The  great  "  secundum  quosdam  "  are  worth  loos. ;  the  small  are  worth  half  a 
marc,  or  5s. 

"  P.  and  M.  i  304. 

12  §  27,  "  Nos  non  habebimus  custodiam  heredis  vel  terras  alicujus,  quam  tenet  de 
alio  per  servitium  militare,  occasione  alicujus  parvas  sergenterias  quam  tenet  de  nobis 
per  servitium  reddendi  nobis  cultellos,  vel  sagittas,  vel  hujusmodi ; "  the  clause  is 
repeated  in  subsequent  re-issues. 


THE   FREE  TENURES  51 

serjeanties  dropped  out,  leaving  only  the  serjeanties  performed  by 
the  great  nobility  on  state  occasions,  and  the  smaller  military 
serjeanties,  it  would  be  natural  to  refer  the  words  of  the  charter 
to  the  latter  class,  and  to  infer  that  they  did  not  apply  to  the 
former  class.  Thus  tenure  by  the  latter  class  of  serjeanty  came 
to  be  "  but  socage  in  effect ;  "  ^  while  tenure  by  the  former  class 
came  to  be  similar  to  tenure  by  knight  service,  till  it  too  was 
turned  into  tenure  by  socage.^  The  honorary  services  due  from 
the  tenant  by  grand  serjeanty  were  preserved  by  the  Act  of 
Charles  11.,^  and  are  the  last  traces  of  a  tenure  which  once  covered 
many  diverse  relationships — political,  social,  and  economic. 

(iv)  Socage. 

At  the  end  of  this  period  free  socage  has  become  the  tenure 
by  which  all  freehold  lands  are  held  if  they  are  not  held  by 
frankalmoin,  knight  service,  or  serjeanty.  This  negative  char- 
acteristic of  the  tenure  is  clearly  brought  out  by  Littleton.'*  It 
is  clear  from  his  account  that  we  can  say  much  as  to  the  services 
and  incidents  which  are  not  due  from  the  socage  tenant ; 
but  that  we  can  say  little  about  the  services  which  are  due. 
Military  service  or  scutage  is  not  due ;  ^  and  above  all  there 
is  no  wardship  and  marriage,^  Generally  a  money  rent  is 
due,''  and  occasionally  agricultural  services.^  This  rent  may 
be  nominal  or  substantial ;  ^  it  may  consist  in  the  gift  of  some 
thing  of  real  value,  e.g.  a  pound  of  pepper,  or  of  merely  nominal 
value,  e,g.  a  rose.  Sometimes  no  rent  at  all,  but  only  fealty, 
is  due.^^  But  it  is  only  gradually  that  tenure  by  socage  has 
attained  these  characteristics. 

The  term  "  soc  "  is,  as  we  have  seen,  connected  with  the  word 
"  seek."  ^^  That  which  the  socman  must  seek  is  his  lord's  soke  or 
jurisdiction.  He  is  therefore  a  man  who,  because  he  must  seek 
his  lord's  court,  is  dependent  in  some  manner  upon  him.  These 
socmen  appear  in  Domesday  in  the  Danish  districts  ;  and  socage 
describes  their  tenure.  Often  they  were  bound  to  perform  agri- 
cultural services ;  and  this  no  doubt  led  both  Bracton  ^^  and  Little- 
ton ^^  to  the  erroneous  belief  that  the  word  "  socage  "  was  connected 
with  the  French  soc^  a  ploughshare. 

1  Litt.  §  i6o  ;  cp.  Bracton  f.  87b. 

-  12  Charles  II.  c.  24.  ^  Ibid  §  7. 

^§  117,  "  Tenure  in  socage  is  where  the  tenant  holdeth  of  his  lord  the  tenancy 
by  certain  service  for  all  manner  of  services,  so  that  the  service  be  not  knight  service." 

5  §§  120,  211.  6  §§  123-125.  7  §  117. 

^  §  iig,  "  And  in  divers  places  the  tenants  yet  do  such  services  with  their  ploughs 
to  their  lords." 

»  P.  and  M.  i  274.  ^»  Litt.  §§  128,  129,  130,  131. 

^^  Vol.  i  20 ;  Vinogradoff,  Villeinage  ig6 ;  English  Society  125  n.  i. 

^2  f.  77b,  "  Et  dici  poterit  sockagium  a  socko  et  inde  tenentes  qui  tenent  sockagio 
sockemanni  dici  poterunt  eo  quod  deputati  sunt,  ut  videtur,  tantummodo  ad  culturam." 

^'^i  119. 


52  THE  LAND  LAW 

In  the  days  before  the  royal  courts  had  created  the  four  great 
types  of  free  tenure  the  variety  of  the  classes  of  these  socmen 
was  very  great.  In  fact,  we  have  socmen  of  all  kinds,  from  the 
substantial  rent-paying  tenant  to  the  tenant  bound  to  perform 
labour  services  and  perhaps  personally  unfree.^  It  is  for  this 
reason  that  the  great  dividing  line  between  free  and  unfree  tenure 
cuts  through  this  class.  The  law  retained  traces  of  the  fact  that 
the  line  had  been  drawn  through  it  in  the  existence  of  both  villein 
socage  and  free  socage.^ 

Primarily  then  the  tenant  by  free  socage  is  a  dependent 
tenant ;  and  his  services  are  generally  connected  with  agriculture.^ 
He  pays  rent  for  land  which  he  cultivates,  or  he  performs  labour 
services,  or  he  does  both.  We  can  see  from  Glanvil  that  the 
conditions  of  his  tenure  are  not  yet  assimilated  to  the  conditions 
of  the  other  free  tenures.  The  succession  to  his  land  is  still 
governed  by  local  custom ;  the  period  when  he  attains  full  age 
is  not  fixed ;  ^  and  we  can  still  see  traces  of  these  differences  in 
the  time  of  Bracton.'*  At  the  end  of  the  thirteenth  century  it  is 
clear  that  the  rights  and  powers  of  a  tenant  holding  by  free  socage 
have  come  into  line  with  the  rights  and  powers  of  the  tenants 
holding  by  the  other  free  tenures.  But  because  it  is  not  a  tenure 
which  is  connected  with  war  no  military  service  is  due,  and  no 
scutage.^  For  the  same  reason  the  lord  cannot  assert  that  he  has 
that  paramount  interest  in  the  wardship  and  marriage  of  the 
infant  heir  of  his  socage  tenant  which,  in  the  days  when  tenure 
by  knight  service  was  really  a  military  tenure,  gave  him  these 
rights  over  the  infant  heir  of  his  military  tenant^  Whatever 
doubts  there  may  have  been  as  to  this  latter  principle,  it  is  by 
implication  asserted  in  the  Charter  of  1 2 1 5.  ^ 

In  the  twelfth  and  thirteenth  centuries  the  tenant  who  held 
simply  at  a  rent  would  not  necessarily  have  been  called  a  tenant 
in  socage.  He  might  have  been  called  a  tenant  in  fee  farm. 
"  To  hold  in  fee  farm  means  to  hold  heritably,  perpetually,  at  a 
rent;  the  fee,  the  inheritance,  is.  let  to  farm."  ^     Tenure  by  fee 

1  Vinogradoff,  Villeinage  196-203 ;  cp.  Bracton  ff.  7,  7b  as  to  the  different  classes 
on  the  royal  demesne. 

2  Ibid  ff.  77b,  78. 

3  Ibid  f.  86b,  speaking  of  the  different  ages  at  which  different  classes  of  tenants 
attain  majority,  he  says  that  the  heir  of  the  socman  is  of  full  age  when  he  has  the 
strength  and  knowledge  needed  "  ea  exercere  quae  pertinent  ad  agriculturam." 

^  viii  c.  3  ;  vol.  ii  201  ;  below  510  ;  as  Sir  Paul  Vinogradoff  says  (English  Society 
40),  •*  Socage  tenure  proceeded  from  an  older  stratum  of  law  than  the  feudal  one." 

5  E.g.  ff.  86,  86b. 

^  There  is  a  small  exception  in  favour  of  "  escuage  certain,"  i.e.  a  sum  fixed  once 
for  all,  and  not  assessed  on  each  occasion  by  Parliament,  Litt.  §  120. 

'  Below  65-66.  8  §  37,  above  50  n.  12. 

^  P.  and  M.  i  273,  274. 


THE  FREE  TENURES  58 

farm  appears  as  a  separate  tenure  in  Magna  Carta/  in  Bracton,^ 
in  Britton/  and  in  the  Old  Tenures."*  Probably  such  tenants 
would  be  a  higher  class  of  rent-paying  tenants — men  who  had 
nothing  to  do  with  agricultural  work.  In  the  course  of  the  four- 
teenth and  fifteenth  centuries  fee  farm  becomes  merged  in  socage. 

The  cause  possibly  was  the  fact  that  the  agricultural  services 
of  the  socage  tenant  were  being  generally  commuted  for  money 
payments.^  The  same  cause  which  was  fatal  to  the  military 
duties  of  the  tenant  by  knight  service,  which  destroyed  the  most 
important  class  of  tenants  by  serjeanty,  which  played  some  part 
in  the  substitution  of  the  copyholder  for  the  villein,  operated  to 
destroy  any  real  distinction  between  the  tenant  by  fee  farm  and 
the  tenant  by  free  socage.  It  was  the  most  important  class  of 
the  socmen,  the  class  which  were  least  burdened  with  labour 
services,  which  thus  became  the  tenants  by  free  socage.^  In 
many  cases  they  had  always  paid  some  rent,  and  very  probably 
they  would  be  the  first  to  feel  the  effects  of  the  movement  in  the 
direction  of  commutation.  Thus  tenure  by  free  socage  comes  to 
embrace  not  only  the  class  of  well-to-do  farmers,  but  also  all  the 
classes  who  hold  at  a  rent — whether  that  rent  be  onerous  or 
merely  nominal.  It  includes  not  only  "  tenants  holding  merely 
under  lease  at  a  rent,"  but  also  the  great  landowners  of  the 
kingdom.  So  wide  a  tenure  can  only  be  described,  as  Littleton 
described  it,  by  negative  characteristics  ;  ^  and  it  is  exactly  these 
negative  characteristics  which  caused  it  to  be  highly  valued,  for 
they  gave  the  tenant  exemption  from  scutage  and  wardship  and 
marriage.  It  was  the  least  encumbered  of  all  the  tenures  with 
obsolete  and  oppressive  incidents,  reminiscent  of  an  older  day 
when  land-holding  involved  public  rights  and  duties  as  well  as 
private  rights  of  ownership.  It  was  because  it  fitted  in  best  with 
the  newer  ideas  which  regarded  land-holding  simply  as  a  form  of 
property  that  it  finally  superseded  all  the  other  free  tenures.^ 

Tenure  in  burgage  is  only  a  variety  of  tenure  in  free  socage. 
It  is  the  tenure  of  those  who  hold  land  freely  in  the  boroughs.^ 
In  many  cases  its  incidents  have  been  affected  by  the  particular 
custom  of  the  borough  in  which   it  is  situate. ^^     It  sometimes 

1(1215)  §37.  -f.  86.  3ii  II.  '•At  p.  92. 

^Vinogradoff,  Villeinage  178-181 ;  below  205. 

^  Vinogradoff,  Villeinage  308,  309. 

"^  As  early  as  Britton  (ii  11)  it  is  so  described — "  Sokemanries  are  lands  and 
tenements  which  are  not  held  by  knight  service,  or  by  grand  or  petty  serjeanties  ;  " 
we  may  note  that  he  thinks  that  they  are  "  enfranchised  "  lands — they  are  held  "by 
simple  services,  as  lands  enfranchised  by  us  or  by  our  predecessors  of  our  ancient 
demesnes." 

^  12  Charles  II.  c.  24. 

^  P.  and  M.  i  275,  276  ;  Litt.  §  162,  "  Such  tenure  is  but  tenure  in  socage." 

1"  Litt.  §  165,  "  AJso  for  the  greater  part  such  boroughs  have  divers  customs  and 
usages  which  be  not  had  in  other  towns," 


54  THE  LAND  LAW 

contains  survivals  and  reminiscences  of  old  rules  and  ideas  which 
have  disappeared  in  the  country  at  large  because  the  country  at 
large  is  subject  to  the  common  law  alone.  Some  of  these  pecu- 
liarities I  shall  notice  when  I  deal  with  certain  variations  from 
the  general  rules  of  the  land  law.^ 

The  Incidents  of  the  Free  Tenures 

The  services  due  from  the  tenant  mark  out  the  guiding  lines 
of  the  different  types  of  tenure.  We  must  distinguish  from  these 
different  services  the  incidents  which  are  dependent  upon  them.^ 

Blackstone  ^  enumerates  as  the  incidents  of  tenure  aids,  relief, 
primer  seisin,  wardship,  marriage,  fines  for  alienation,  and  escheat. 
I  shall  deal  with  the  whole  subject  of  freedom  of  alienation  in  the 
next  section.  Here  I  shall  deal  with  the  other  incidents  of  tenure 
as  enumerated  by  Blackstone,  and  also  with  some  of  its  other 
consequences  in  the  following  order  :  (i)  homage  and  fealty  ;  (ii) 
relief  and  primer  seisin  ;  (iii)  wardship  and  marriage;  (iv)  aids; 
(v)  escheat  and  forfeiture. 

(i)  Homage  and  fealty. 

Homage  is  the  ceremony  which  makes  the  tenant  the  man  of 
his  lord.*  The  oath  of  fealty  is  the  oath  which  the  tenant  swears 
to  be  faithful  to  his  lord.^  "Fealty,"  it  is  said  in  a  Year  Book 
of  Edward  I.'s  reign,  "does  not  make  the  tenant ;  for  that  is  only 
an  acknowledgment  of  the  services :  but  homage  makes  the 
tenant."''  If  a  tenant  holds  several  pieces  of  land  of  different 
lords  he  can  only  perform  unconditional  or  liege  homage,  he  can 
only  swear  unconditional  fealty,  to  one  of  these  lords.  That  lord 
is  called  the  liege  lord.  He  is  usually  the  lord  who  or  whose 
ancestors  made  the  most  ancient  of  these  feoffments.  When 
homage  is  done  or  fealty  is  sworn  to  the  other  lords  a  saving  must 
be  made  of  the  duty  to  the  liege  lord.''' 

All  free  tenants  must  take  an  oath  of  fealty  to  their  lords ; 
and  such  an  oath  might  be  exacted  at  the  present  day.  Homage, 
on  the  other  hand,  when  we  first  read  of  it,  was  a  ceremony  only 
performed  by  the  military  tenant,^  and  it  could  not  be  performed 

1  Below  269-275. 

2Y.B.  20,  21  Ed.  I.  (R.S.)  132  per  Tiltone  arguendo,  "  Relief  is  not  a  service, 
but  dependent  on  a  service ; "  cp.  3,  4  Ed.  II.  (S.S.)  96,  99  per  Scrope  avg. 

^Comm.  ii  63. 

4  For  the  ceremony  see  Bracton  f.  80;  Britton  ii  37  ;  Litt.  §  85  ;  Y.B.  is  Ed.  III. 
(R.S.)  446. 

^Bracton  f.  80;  Britton  ii  39,  40;  Litt.  §  91 ;  it  tells  us  nothing  of  the  services 
which  may  be  due,  Y.B.  18  Ed.  III.  (R.S.)  318. 

"Y.B.  21,  22  Ed.  I.  (R.S.)  240. 

"'  P.  and  M.  i  279 ;  Glanvil  ix  c.  i ;  Litt.  §  89. 

8  Bracton  ff.  77I),  78 ;  but  in  Bracton's  day  the  socage  tenant  often  performed  it, 
P.  and  M.  i  286,  287. 


INCIDENTS  OF  FREE  TENURES  55 

by  a  woman. ^  Its  performance  brought  into  existence  many- 
important  rights  and  duties.  Its  history,  like  that  of  the  military 
tenures,  is  a  history  of  decay ;  and  the  cause  of  its  decay  is  that 
elimination  from  the  land  law  of  the  public  elements  originally 
contained  in  it  which  has  already  been  noted  in  dealing  with  th^ 
history  of  the  free  tenures. 

In  the  older  law,  represented  in  the  Laws  of  Henry  I.,  the 
ceremony  of  homage  put  the  military  tenant  under  the  duty  of 
aiding  and  protecting  his  lord,  with  his  life  it  may  be,  of  honouring 
him,  and  of  faithfully  serving  him  against  all  men.  Such  a  tenant 
was  a  member  of  the  lord's  court  and  council,  and  as  such  had  a 
share  in  the  government  of  the  fief.  On  the  other  hand,  the  lord 
was  under  the  duty  of  protecting  the  tenant,  and  of  defending  him 
with  his  name  and  power  against  attacks,  whether  those  attacks 
took  the  form  of  legal  proceedings  or  of  open  force.^  The  lord 
is  far  more  than  a  landlord.  The  tenant  owes  many  other  and 
different  duties  than  a  mere  tenant.  Lord  and  tenant  are  related 
rather  as  ruler  and  subject.  The  state  is  weak.  The  man  wants 
protection  and  the  lord  retainers.^  The  ceremony  of  homage 
cements  those  associations  of  lords  and  men  which,  in  the  days  of 
the  weakness  or  the  infancy  of  the  state,  of  necessity  assume 
many  public  duties,  and  cause  landowning  to  be  a  matter  of  public 
law.  It  is  for  this  reason  that  the  breach  of  the  obligations 
involved  in  homage  is  the  most  heinous  offence  known  to  the 
law.*  It  is  the  essence  of  felony,  in  the  earliest  sense  in  which 
that  term  was  used ;  ^  and  it  is,  as  we  shall  see,  one  of  the  most 
primitive  of  all  the  different  ideas  which  have  gone  to  the  making 
of  our  law  of  treason,  because  these  obligations  are  the  bond  which 
knits  the  feudal  state.®  In  England  we  must  look  to  old  compila- 
tions like  the  Laws  of  Henry  I.,  or  to  continental  analogies,  if  we 
would  understand  the  significance  of  homage,  because  in  England 
the  rise  of  the  common  law  necessarily  involved  a  diminution  in 
its  importance.  But  in  spite  of  the  activity  of  the  common  law 
we  can  see  from  the  disorder  of  the  fifteenth  century  that  the 
political  ideas  which  underlay  the  old  conception  of  homage  still 
lived  on.     Legal  rules,  which  run  counter  to  the  prevalent  ideas 

^  Glanvil  ix  c.  2. 

2  P.  and  M.  i  280,  281,  and  passages  from  the  Leges  Henrici  there  cited,  287 ; 
French  law,  because  feudalism  was  stronger,  gives  us  the  best  idea  of  the  older  con- 
sequences of  homage,  see  Esmein,  Histoire  du  Droit  Fran^ais  218-224;  the  mutual 
obligations  of  lord  and  man  are  well  brought  out  in  Glanvil's  definition  (ix  c.  4), 
"  Mutua  quidem  debet  esse  dominii  et  homagii  fidelitatis  connexio,  ita  quod  quantum 
homo  debet  domino  ex  homagio,  tantum  illi  debet  dominus  ex  dominio  praeter  solam 
reverentiam;  "  cp.  Y.B.  3,  4  Ed.  II,  (S.S.)  7  per  Bereford,  C.J. 

•'*  Maitland  says  of  the  ceremony,  "  Everything  seems  done  to  tell  us  that  the  man 
has  come  helpless  to  the  lord  and  has  been  received  into  the  lord's  protection,"  P.  and 
M.  i  278. 

■'Leg.  Henr.  75.  i.  ^Vol.  ii  357-358.  «  Below  287-288. 


56  THE  LAND  LAW 

of  the  age,  must  be  rigidly  applied  for  many  years  before  they 
bring  about  a  reform  of  these  prevalent  ideas,  and  create  an 
instinctive  preference  for  different  ideas  in  harmony  with  them- 
selves. During  the  whole  of  this  period  this  change  was  gradually 
and  silently  taking  place.  The  public  element  in  the  land  law  was 
being  reduced  to  the  lowest  dimensions ;  and  thus  homage  was 
becoming  a  mere  ceremony  of  constantly  diminishing  importance. 
The  causes  and  stages  of  this  process  may  be  summarized  as 
follows  :  (i)  With  the  increase  of  the  power  of  the  state,  the  duty 
to  the  king  as  supreme  lord — the  duty  of  allegiance — takes  pre- 
cedence of  the  duty  to  the  lord.  William  I.  insisted  on  the 
recognition  of  this  principle,^  and  his  successors  more  than  main- 
tained his  claims.^  Thus  the  worst  crimes — the  felonies  and 
treasons  of  our  later  law — come  to  be  offences  not  against  the  lord 
but  against  the  king.  They  are  breaches  of  the  tie  of  allegiance, 
not  of  homage.^  But,  as  we  shall  see,  some  traces  of  the  older 
ideas  were  long  preserved  in  the  existence  of  the  crime  of  petty 
treason,  and  in  the  lord's  right  of  escheat  if  his  tenant  committed 
felony.^  (2)  As  we  have  seen,  the  supreme  control  asserted  by 
the  courts  of  common  law  over  all  disputes  as  to  the  possession 
of  or  right  to  lands  held  by  a  free  tenure  tended  to  break  up  the 
solidarity  of  the  feudal  group ;  and  so  the  bond  which  once  united 
this  group  necessarily  lost  its  meaning.  (3)  As  the  land  law 
comes  to  be  merely  property  law  the  consequences  of  homage 
become  merely  proprietary.  It  gives  rise  to  duties  to  warrant  the 
title ;  ^  and,  as  its  older  significance  decayed,  and  as  the  differences 
between  the  free  tenures  began  to  fade,  the  ceremony  ceased  to 
be  confined  to  the  military  tenant.  It  could  be  and  was  expressed 
in  terms  borrowed  from  the  Roman  law  of  obligations ;  ^  and,  when 
the  duties  of  warranty  came  to  be  based  rather  on  express  covenants 
than  upon  the  ceremony  of  homage,''  it  really  ceased  to  have  any 
meaning  at  all,  and  was  appropriately  abolished  in  1660  ^  with  the 
military  tenures  themselves. 

^ Saxon  Chronicle  s.a.  1086,  "After  that  he  went  about  so  that  he  came  at 
Lammas  to  Salisbury,  and  there  came  to  him  his  witan,  and  all  the  landowning  men 
of  property  there  were  over  all  England,  whose  soever  men  they  were,  and  all  bowed 
down  to  him  and  became  his  men,  and  swore  oaths  of  fealty  to  him  that  they  would 
be  faithful  to  him  against  all  other  men." 

2  In  all  the  forms  of  the  ceremony  (above  54  n.  4)  the  faith  owed  to  the  king  is 
saved. 

3  P.  and  M.  i  284-286 ;  Calvin's  Case,  7  Co.  Rep.  at  pp.  4b-6 ;  Bl.  Comm.  i  369. 

4  Below  69,  288. 

f^Glanvil  ix.  c.  4;  Britton  ii  26;  Litt.  §§  143-145;  below  160. 

^Bracton,  f.  78b,  defines  it  as,  "  Juris  vinculum  quo  quis  astringitur  ad  warranti- 
zandum,  defendendum,  et  acquietandum  tenentem  suum  in  seisina  versus  omnes  per 
certum  servitium  in  donatione  nominatum  et  expressum ;  et  etiam  vice  versa  quo 
tenens  re  obligatur  et  astringitur  ad  fidem  domino  suo  servandam  et  servitium  debitum 
faciendum ;  "  cp.  above  55  n.  2. 

■^  Below  161,  8 12  Charles  II.  c.  24, 


INCIDENTS  OF  FREE  TENURES  57 

In  the  history  of  homage  and  fealty  we  may  see  in  little  the 
history  of  two  important  tendencies  of  our  land  law.  Homage 
represented  the  public  element  in  feudal  law.  Because  it  did  so, 
it  decayed,  and  disappeared  together  with  the  tenures  and  those 
of  their  incidents  which  were  characteristic  of  that  older  state  of 
society  of  which  it  had  once  been  the  bond.  Fealty  represented 
the  bond  between  lord  and  tenant  Its  retention  bears  witness  to 
that  universality  of  tenure  ^  in  our  land  law  which  was  secured  by 
the  very  cause  which  was  fatal  to  homage — the  existence  of  a 
central  court  strong  enough  both  to  repress  the  elements  in 
feudalism  which  were  hostile  to  the  development  of  the  state,  and 
to  make  the  feudal  conception  of  land  tenure  the  common  law  of 
the  land. 

(ii)  Relief  and  Primer  Seisin. 

The  dependency  of  the  man  upon  his  lord  was,  as  we  have 
seen,  the  result  of  many  different  causes.  The  various  types  of 
tenure  known  to  the  law  represented  many  different  kinds  of 
bargain  between  the  contracting  parties.^  According  to  the  nature 
of  the  bargain  the  right  of  the  heir  of  the  tenant  to  succeed  to  the 
land  of  his  ancestor  will  be  stronger  or  weaker.  In  the  eleventh 
and  twelfth  centuries  the  heir  of  the  tenant  by  knight  service  has, 
as  a  rule,  the  right  to  succeed  to  the  lands  of  his  ancestor — but 
upon  terms.  With  the  development  of  the  common  law  the  rules 
for  the  military  tenant  are  extended  to  all  free  tenants,  and  the 
terms  attain  fixity.  These  terms  become  the  incidents  of  tenure 
known  as  relief  and  primer  seisin. 

I  shall  discuss  here  the  origin  of  the  relief,  the  spread  of  the 
11  relief  to  all  free  tenures,  the  manner  in  which  its  amount  came  to 
i  be  fixed,  and  the  manner  in  which  the  rights  of  the  lord  and  the 
;  heir  were  adjusted. 

In  dealing  with  the  origin  of  the  relief  we  must  at  the  outset 
i  distinguish  the  relief  from  the  heriot.  We  have  seen  ^  that,  at  the 
i  time  of  the  Conquest,  the  man  was  expected  to  give  his  lord  an 
i  heriot  at  death.  This  heriot — the  arms  of  the  thegn,  the  stock  of 
I  the  peasant,  perhaps  the  gift  to  the  lord  that  he  may  recognize 
I  the  will  of  his  tenant  * — represent  in  theory  the  return  to  the  lord 
I  of  the  capital  which  he  has  advanced  to  his  tenant  The  relief,  on 
!  the  other  hand,  represents  the  sum  paid  by  the  heir  to  the  lord 
that  he  may  succeed  to  the  property  of  his  ancestor.^     In  the  case 

^  Vol.  ii  199.  2  Ibid  200;  vol.  i  21-23, 

^  Vol.  ii  75.  ^  Ibid ;  Bracton  f.  86. 

°  Ibid  f.  84,  when  homage  and  fealty  have  been  taken,  the  "  hsereditas,  quae 
jacens  fuit  per  eorum  decessum,  relevetur  in  manus  heredem,  et  propter  talem  releva- 
tionem,  facienda  erit  ab  heredibus  quaedam  praestatio,  quae  dicitur  relevium  ...  fit 
\  '■  quaedam  praestatio,  quae  non  dicitur  relevium,  sed  quasi,  sicut  heriettum;  "  cp.  Y.B. 
J  j  17,  18  Ed.  III.  (R.S.)  322,  where  it  is  said  that  relief  should  be  taken  before  homage  ; 
I  for  relief  in  D.B.  see  Vinogradoff,  English  Society  224,  243. 


58  THE  LAND  LAW 

of  the  greater  military  tenants  there  can  be  no  question  of  the 
advance  of  arms  or  stock.  Their  lands  have  been  granted  to  them 
in  return  for  public  services  past  and  future.  From  the  time  of 
the  Conquest  it  has  been  recognized  that  these  lands  will  descend 
to  the  heir  of  the  tenant.  But  the  heir  must  pay  a  relief  in 
recognition  of  the  lord's  sefgnory.  The  land  was  originally  given 
by  the  lord  to  the  tenant ;  but  the  lord  does  not  want  to  seek  a 
new  tenant  whenever  an  old  tenant  dies.  The  heir  is  the  obvious 
person  to  take  the  land.  He  is  willing  to  pay  something  to  be 
allowed  to  succeed.  The  outcome  is  the  recognition  of  hereditary 
right  in  return  for  the  payment  of  the  relief  It  may  perhaps  be 
said  that,  if  this  is  the  origin  of  the  relief,  we  should  expect  to  find 
that  when  a  remote  heir  succeeds  a  larger  sum  is  charged  than 
when  a  near  heir  succeeds.  It  is  not  so  much  to  the  advantage 
of  the  lord  to  allow  a  remote  heir,  whom  perhaps  he  does  not 
know,  to  become  his  tenant,  as  to  allow  a  son,  with  whom  perhaps 
he  has  grown  up,  to  have  the  land.  He  might  be  better  off  if  he 
enfeoffed  a  stranger.  In  France  there  are  traces  that  the  relief 
varied  upon  this  principle.^  That  we  have  no  trace  of  such  varia- 
tion in  England  is  due,  perhaps,  to  the  fact  that  the  centralized 
administration  of  the  law  made  for  simplicity  in  its  rules.  And  the 
view  that  it  is  these  conflicting,  but  not  adverse,  interests  of  lord 
and  tenant  which  supply  the  key  to  the  origin  of  the  relief  gains 
perhaps  additional  probability  by  the  fact  that  a  relief  was  never 
payable  by  the  tenant  on  the  death  of  the  lord.  It  may  be  that 
in  the  past,  when  the  tenant's  holding  was  regarded  as  entirely 
precarious,  and  before  there  was  much  fixed  law  on  these  matters, 
the  new  lord  exacted  such  a  payment.^  But  in  the  reign  of 
William  II.  the  claim  to  make  this  exaction  was  regarded  as 
wholly  illegal.^  In  such  a  case,  indeed,  it  was  really  to  the  interest 
of  the  new  lord — himself  liable  to  pay  a  relief  and  perhaps  to  pay 
some  of  his  ancestor's  debts — to  respect  the  existing  interests  of 
his  tenants.  He  might  perhaps  induce  his  tenants  to  help  him 
pay  his  relief'^ — but  this  is  an  aid,^  a  sum  paid  by  an  existing 
tenant  It  is  no  relief,  no  payment  for  the  recognition  of  his 
status  as  tenant. 

It  is  with  reference  to  the  tenants  by  military  service  that 
we  first  hear  of  the  relief.     Socage  shades  off  into  villein  tenure ; 

1  Esmein,  Histoire  du  Droit  Fran9ais  227,  says  that  by  the  thirteenth  century  relief 
was  paid  as  a  rule  only  by  collaterals,  "  sans  aucun  doute,  les  textes  du  droit  romain, 
sur  les  siii  heredes  et  la  contimiatio  dominii  k  leur  profit  exercerent  ici  une  grande 
influence." 

2  P.  and  M.  i  298. 

3  Ibid  299;  Bracton,  f.  84b,  says  distinctly  that  it  must  be  paid,  "  non  nisi  semel 
tantum  id  est  quamdiu  heres  duraverit  qui  semel  relevavit." 

4  Glanvil  ix  8. 

^  Below  66 ;  Bracton,  f.  85,  seems  to  deny  that  such  an  aid  can  be  demanded. 


INCIDENTS  OF  FREE  TENURES  59 

and  it  was  at  first  perhaps  doubtful  whether  the  socage  tenant 
paid  relief  at  all — whether  his  payment  was  not  rather  in  the 
nature  of  the  heriot.^  But  both  in  Glanvil  and  in  Henry  III.'s 
reign  we  hear  of  socage  tenants  paying  reliefs ;  ^  and,  though  some 
of  them  still  paid  heriots,  it  is  coming  to  be  thought  that  this 
payment  should  be  made  only  by  those  who  hold  by  a  villein 
tenure.^  Probably  from  the  beginning  of  the  fourteenth  century 
onwards  it  was  recognized  that  the  socage  tenant  paid  a  relief. 
In  the  case  of  serjeanty  the  peculiarly  personal  services  due  from 
the  tenant  hindered,  as  we  have  seen,  the  growth  of  the  idea  that 
lands  so  held  should  descend  to  the  heirs.*  There  could  be  no 
thought,  therefore,  of  a  relief.  We  shall  see  that  it  was  not  till 
some  time  after  the  reliefs  of  other  tenants  had  been  fixed  that  any 
rule  was  arrived  at  in  the  case  of  tenants  by  serjeanty.  A  case 
decided  in  1410^  implies  that  they  paid  a  relief;  and  this  is 
definitely  stated  by  Littleton.*^ 

In  early  days  the  amount  of  the  relief  was  no  doubt  left  to  be 
fixed  by  individual  bargaining;  and  bargaining  in  that  age  was 
generally  conducted,  not  by  reference  to  the  abstract  law  of  supply 
and  demand,  but  rather  by  reference  to  the  effective  fighting  force 
of  the  contending  parties.'^  The  growth  of  a  settled  system  of 
law,  and  the  need  for  setting  some  limit  to  the  avarice  of  the 
crown,  seem  to  have  been  the  two  causes  which  led  to  the  definite 
fixing  of  the  amounts  payable.  William  II.  had  stretched  the 
rights  of  the  crown  to  the  utmost.  We  are  not  surprised,  there- 
fore, to  find  that  the  first  attempt  to  fix  the  relief  is  made  in  the 
charter  which  Henry  I.  issued  at  the  beginning  of  his  reign.  He 
promised  that  the  heirs  of  tenants  in  chief  and  the  heirs  of  mesne 
tenants  should  not  be  compelled  to  buy  back  their  lands,  but 
should  only  be  obliged  to  pay  a  just  and  lawful  relief.^     Glanvil  ^ 

^  Glanvil,  ix  4,  and  Bracton,  f.  84b,  talk  as  if  the  payment  made  by  a  socage  tenant 
was  a  relief;  Bracton,  f.  85b,  and  Britton,  ii  50,  seem  to  confine  the  relief  to  grand  ser- 
jeanty or  knight's  service — the  payment  made  by  the  socage  tenant  Britton  calls  a 
recognition  of  seignory.  In  a  case  reported  Y.B.  33-35  Ed.  I.  (R.S.)  350-355  it  was 
argued  that  tenancy  in  fee  farm  (above  52)  carried  no  relief — but  the  case  vv^ent  off 
on  another  point. 

2  Below  n.  9 ;  Excerpta  e  Rot.  Fin.  (R.C.)  i  409  (28  Hy.  III.). 

'  Britton  ii  51.  ^  Above  46-47. 

5  Y.B.  II  Hy.  IV.  Trin.  pi.  9  cited  P.  and  M.  i  270. 

^§  154.  7  p^  and  M.  i  297  citing  Burton  Cart.  30. 

^  §  2,  "  Si  quis  baronum,  comitum  meorum  sive  aliorum  qui  de  me  tenent,  mor- 
tuus  fuerit,  haeres  suus  non  redimet  terram  suam  sicut  faciebat  tempore  fratris  mei, 
sed  justa  et  legitima  relevatione  relevabit  earn.  Similiter  et  homines  baronum 
meorum  justa  et  legitima  relevatione  relevabunt  terras  suas  de  dominis  suis." 

^  ix  4,  "  Dicitur  autem  rationabile  relevium  alicujus,  juxta  consuetudinem  regni 
de  fcedo  unius  militis,  centum  solidi ;  de  socagio  vero  quantum  valet  census  illius 
socagii  per  unum  annum ;  de  baroniis  vero  nihil  certum  statutum  est  .  .  .  idem  est 
de  serjanteriis ;  "  some  commentators  think  that  these  rates  were  not  binding  on  the 
crown,  so  that  all  tenants  in  chief  were  liable  to  arbitrary  reliefs,  McKechnie,  Magna 
Carta  197  n.  i ;   but  see  Round,  Magna  Carta  Commemoration  Essays  53-59 ;  those 


60  THE  LAND  LAW 

and  the  Dialogus  de  Scaccario^  tell  us  that  the  relief  of  the 
knight's  fee  is  fixed  at  lOOs.,  but  that  the  relief  of  baronies  and 
serjeanties  is  not  fixed.  The  charter  of  1215  fixed  the  relief  of 
the  barony  at  ;^ioo,  and  that  of  the  knight's  fee  at  lOOs.  ;2  but 
at  some  period  before  the  revision  of  the  charter  by  Edward  I. 
the  ;^ioo  had  been  reduced  to  100  marks.  ^  Towards  the  end  of 
the  thirteenth  century  the  payment  made  by  the  heir  of  the  socage 
tenant — which,  as  we  have  seen,  came  to  be  called  a  relief — was 
finally  fixed  in  the  mode  stated  by  Glanvil  at  one  year's  addi- 
tional renf*  At  some  period  before  the  beginning  of  the  fifteenth 
century  the  relief  of  the  tenant  by  serjeanty  was  fixed  at  one  year's 
additional  value  of  the  land.^ 

It  is  one  thing  to  fix  the  amount  of  the  relief  payable :  it  is 
another  thing  to  secure  a  peaceable  succession  to  the  heir  on  pay- 
ment of  that  relief.  The  lord's  interest  is  to  get  payment,  and  he 
will  naturally  contend  that  he  has  the  right  to  take  possession  of 
the  land  and  exclude  the  heir  till  payment  is  made.  The  heir's 
interest  is  to  enter  upon  his  inheritance,  and  he  will  naturally  con- 
tend that  he  has  the  right  to  take  and  keep  possession  of  the  land 
which  is  his,  paying  his  relief.  Both  Glanvil  and  Bracton  allow 
the  lord  to  take  a  "  simple  seisin" — such  a  seisin  as  will  not  dis- 
turb the  heir.*^  But  obviously,  till  an  heir  appears,  the  lord  has 
the  right  to  take  possession  of  what  is  his,  if  there  is  no  heir.'^  It 
appears  from  the  Petition  of  the  Barons  (1258)  that  the  lords  had 
gone  beyond  their  rights.  They  had  taken  possession  of  and 
wasted  the  land,  though  an  undoubted  heir  existed  who  was 
ready  to  pay  his  relief.^  In  1267  the  Statute  of  Marlborough 
settled  the  law  in  the  sense  in  which  it  had  been  laid  down  by 
Bracton.     It  enacted  that  if  there  was  a  person  clearly  entitled 

who  paid  reliefs  to  the  crown  were,  till  1258,  liable  for  a  further  sum  called  "  Queen's 
Gold,"  payable  to  the  queen,  McKechnie,  op.  cit.  198. 

Mi  x(p.  135). 

2  c.  2  ;  Mr.  Round  has  shown  that  the  line  drawn  in  this  chapter  between  baronies 
and  knights'  fees  for  the  purposes  of  relief,  has  nothing  to  do  with  the  line  drawn  in 
chapter  fourteen  between  the  greater  barons  and  the  other  tenants  in  chief.  Magna 
Carta  Commemoration  Essays  46-53 ;  as  he  points  out,  ibid  77,  "  the  line  drawn  in 
the  second  chapter  was  in  practice  sharply  defined,  because  the  relief  payable  to  the 
crown  could  only  be  determined  by  it ;  the  line  drawn  in  the  fourteenth  was,  on  the 
contrary,  vague,  and  remained  in  practice  undefined." 

2  P.  and  M.  i  289,  "  And  thus  the  notion  that  a  barony  consists  of  13^  knights' 
fees  was  engendered." 

^  Glanvil  ix  4 ;  Bracton  f.  85b  ;  P.  and  M.  i  290  n.  i. 

^  Above  47  n.  i . 

^  Glanvil  vii  9,  ix  4 ;  Bracton  ff.  252,  252b.  Glanvil's  words  (vii  9)  are,  *'  Haeredes 
vero  majores  statim  post  decessum  antecessorum  suorum  possunt  se  tenere  in  haeredi- 
tate  sua,  Hcet  domini  possint  foedum  suum  cum  hasrede  in  manus  suas  capere ;  ita 
tamen  moderate  id  fieri  debet,  ne  aliquem  disseisinam  haeredibus  faciant :  possunt 
enim  haeredes,  si  opus  fuerit,  violentiae  dominorum  resistere,  dum  tamen  parati  sunt 
relevium  et  alia  recta  servitia  eis  inde  facere." 

''  Glanvil  ix  6.  s  §  j  (gel  Ch,  382), 


INCIDENTS  OF  FREE  TENURES  61 

as  heir  in  possession,  "  the  chief  lord  shall  not  put  him  out,  nor 
take,  nor  remove  anything  there,  but  shall  take  only  simple  seisin, 
that  he  may  be  known  as  lord  ;  and  if  the  lord  ousts  the  heir, 
the  heir  shall  recover  damages  as  in  assize  of  novel  disseisin."  ^ 
It  was  only  if  no  heir  appeared,  or  if  there  was  a  dispute  as  to 
the  inheritance,  that  the  lord  could  take  more  than  "  simple  seisin." 

But  in  this  branch  of  the  law,  as  in  many  others,  "  the  king 
was  prerogative."  On  the  death  of  the  tenant  in  chief  he  was 
always  and  under  all  circumstances  entitled  to  first  seisin — primer 
seisin!^  Being  so  seised  he  issued  the  writ  diem  clausit  extre- 
mum  ^  to  the  escheator,  who  held  an  inquisitio  post  mortem.  When 
the  heir  had  done  homage  and  paid  his  relief,  he  might  then,  and 
not  till  then,  sue  the  tenements  from  out  of  the  king's  hand  {ouster 
le  main)  and  get  seisin.  This  right  of  the  king  was  recognized  by 
the  Statute  of  Marlborough  *  and  the  Prserogativa  Regis. ^ 

Reliefs  are  in  theory  still  payable.  The  royal  right  to  primer 
seisin  was  abolished  in  1660.® 

(iii)  Wardship  and  marriage. 

We  have  seen  that  the  interest  of  the  tenant  only  gradually 
became  hereditary,  and  that  when  it  had  become  hereditary  the 
obligation  to  pay  a  relief  still  reminded  the  heir  of  the  lord's 
rights.  It  is  clear  that  when  the  hereditary  principle  was  still 
struggling  for  recognition  the  lord's  claim  to  take  back  the  land 
on  the  death  of  his  tenant  would  be  most  strongly  felt  when  the 
tenant's  heir  was  an  infant  or  a  woman.  The  lord,  it  would  be 
argued,  must  be  allowed  to  educate  the  infant  heir,  so  that  he 
may  become  a  worthy  tenant,  and  he  must  have  some  say  in  the 
marriage  of  the  woman,  lest  he  be  forced  to  accept  as  a  tenant 
his  personal  enemy.  ^  We  have  seen  that  these  ideas  were  making 
themselves  felt  in  England,  as  in  other  parts  of  Europe,  in  the 
Anglo-Saxon  period.^  After  the  Conquest  new  point  was  given 
to  these  rights  of  the  lord  by  the  rigid  theory  of  tenure,  by  the 
centralized  administration  of  the  law,  and  by  the  power  of  the 
crown.  The  rights  of  wardship  and  marriage  became  definite 
rights  of  great  pecuniary  value  both  to  the  king  and  to  the  mesne 
lords.  ^     To  modern  minds  such  rights  seem  to  be  very  fiduciary 

1  52  Henry  III.  c.  i6 ;  cp.  Britton  ii  52. 

2  Glanvil  ix  6 ;  Bracton  f.  252b. 

^  For  this  writ  see  F.N.B.  252K ;  in  its  final  form  the  writ  is  not  known  till  the 
end  of  Henry  III.'s  reign;  we  have  incidental  uses  of  the  phrase  "diem  clausit 
extremum  "  in  the  27th  and  29th  years;  but  at  first  various  forms  of  words  were 
used,  Excerpta  e  Rot.  Fin.  (R.C.)  ix,  x. 

'*52  Henry  III.  c.  16.  "c.  3  ;  for  this  document  see  vol.  i  473  n.  8. 

"  12  Charles  II.  c.  24.  '  See  Glanvil  vii  12.  "^  Vol.  ii  75. 

^  See  e.g.  Bl.  Comm.  ii  76,  77 ;  but  as  Maitland  says  (P.  and  M.  i  304),  '♦  To 
speak  of  the  English  lords  as  groaning  under  the  burdens  of  wardship  and  marriage 
is  hardly  permissible ;  we  do  not  hear  their  groans." 


62  THE  LAND  LAW 

in  their  nature.  None  of  the  incidents  of  tenure  are  more  ah'en 
to  our  ideas,  and  none  have  been  more  execrated.  That  they 
were  beginning  to  be  repugnant  to  the  current  morahty  even  of 
the  thirteenth  and  fourteenth  centuries  there  are  some  signs.  In 
the  French  law  of  the  thirteenth  century  the  right  of  wardship  is 
not  simply  a  valuable  right  of  the  lord ;  ^  and  in  England,  unlike 
the  other  incidents  of  tenure,  they  were  always  incidents  of  the 
military  tenures  only — they  never  became  common  to  all  the  free 
tenures.  We  may  well  believe  that  these  rights  originally  as- 
sumed the  extremely  commercial  form  which  they  took  in  Eng- 
land, because  the  land  law  in  England  was  reduced  to  a  set  of 
definite  rules  at  an  early  period  ;  and  that  they  retained  this 
form,  because  they  formed  an  increasingly  valuable  asset  of  the 
royal  revenue.  It  should  be  remembered  also  that  it  is  not  only 
in  England  that  early  law  regards  as  a  right  that  which  a  more 
mature  system  of  law  regards  as  a  duty.  The  tutela  of  Roman 
law  supplies  an  analogy.  All  varieties  of  tutelce  were  originally 
valuable  rights.  The  tutela  impuberum  developed  into  an  onerous 
trusteeship ;  but  the  perpetua  tutela  mulierum  was  incapable  of 
this  development.  Just  as  it  gradually  became  an  anomaly  and 
an  anachronism  because  it  could  only  represent  the  primitive  idea, 
so  these  incidents  of  wardship  and  marriage  were  gradually  felt 
to  be  more  and  more  oppressive  and  finally  disappeared.  But  in 
their  case  there  could  be  no  such  gradual  modification  and  gentle 
decay  as  we  see  in  Roman  law,  because  they  were  not  only  valu- 
able rights,  but  valuable  rights  in  which  the  king  had  come  to  be 
chiefly  interested. 

As  was  the  case  with  the  other  incidents  of  tenure,  so  with 
wardship  and  marriage,  their  extent  was  at  first  vague.  There 
can  be  no  doubt  that  they  were  exploited  to  the  utmost  by 
William  II.  ;^  and,  as  in  the  case  of  the  relief,  Henry  I.  was  ob- 
liged to  promise  some  reform.  If  any  of  the  king's  tenants,  he 
says,  wishes  to  marry  his  female  relative  to  any  one  he  is  to 
speak  with  the  king  ;  the  king  will  not  take  anything  for  giving 
his  licence,  nor  will  he  forbid  the  match,  unless  it  is  proposed  to 
marry  the  lady  to  his  enemy.  A  female  heiress  the  king  will 
marry  after  taking  counsel  with  his  barons.  A  widow  shall  not 
be  compelled  to  marry  against  her  will.  If  she  has  children  their 
lands  and  persons  shall  be  entrusted  to  the  widow  or  to  their 

lEsmein,  Histoire  du  Droit  Fran^ais  236,  "Dans  la  plupart  des  coutumes  la 
garde  seigneuriale  fut,  de  bonne  heure,  remplac^e  par  le  hail,  qui  forme  le  droit 
commun  au  xiiie  siecle.  II  consista  en  ce  que  la  jouissance  du  fief,  au  lieu  de  retour- 
ner  au  seigneur,  pendant  la  minority  de  I'heretier,  resta  k  la  famille  de  celui  ci ;  un 
parent,  en  qualite  de  baillistre,  eut  la  jouissance  du  fief,  a  charge  d'en  faire  les  ser- 
vices ; "  we  see  a  similar  development  in  the  guardianship  in  socage,  below  65-66 ; 
for  guardianship  in  general  see  below  511-513. 

2  P.  and  M.  i  306,  307. 


INCIDENTS  OF  FREE  TENURES  63 

nearer  relatives.  The  barons  shall  observe  the  same  law  with 
respect  to  their  tenants.^  These  promises  were  certainly  not 
fulfilled.  Probably  both  the  king  and  the  mesne  lords  were  loath 
to  abandon  valuable  rights.  Glanvil  ^  lays  it  down  that  until 
majority  the  lord  has  the  custody  of  the  sons  and  heirs  of  his 
military  tenants,  and  also  of  their  estates,  "so  as  to  have  com- 
plete power  of  disposing  of  both."  He  has  the  marriage  of  his 
female  wards  and  "  can  manage  their  affairs  generally  in  the  same 
way  as  he  is  accustomed  to  manage  his  own."  He  cannot,  how- 
ever, alienate  the  inheritance ;  he  must  properly  maintain  the 
heir ;  and,  to  the  extent  of  the  value  of  the  inheritance,  he  must 
pay  the  deceased's  debts  ;  he  must  also  restore  the  inheritance  in 
good  condition.  Glanvil,  therefore,  recognizes  both  wardship 
and  marriage  as  valuable  rights  belonging  to  the  lord.  It  is  true 
that  he  also  recognizes  that  the  lord  has  duties  to  perform  ;  and 
that  when  he  talks  of  the  right  of  marriage  he  only  mentions  the 
marriage  of  female  wards.  These  characteristics  may  be  due 
to  a  growing  feeling — perhaps  derived  from  Roman  law — that 
guardianship  involved  duties  as  well  as  rights,  and  to  reminiscences 
of  the  original  ground  for  the  right  of  marriage  which  fitted  in 
with  these  newer  ideas.  However  that  may  be,  Maitland  has 
shown  that  these  newer  ideas  ran  counter  to  the  practice  of  the 
time.^  At  the  time  when  Glanvil  was  writing  the  wardships  and 
marriages  both  of  male  and  of  female  wards  were  regarded  simply 
as  valuable  rights  to  be  bought  and  sold ;  and  it  is  clear  from 
Magna  Carta  that  the  barons  were  not  disposed  to  give  them  up. 
The  charter  asserted  them  in  large  terms.  The  guardian  must  not 
waste  the  lands  of  his  ward  ;  the  ward  must  not  be  married  to 
one  of  lower  social  rank.  Subject  to  this  the  guardian  has  a  free 
hand.^  TheStatuteofMerton^  (123  5- 1236)  still  further  emphasized 
the  lord's  right  by  giving  to  the  lord  new  remedies  if  his  ward 

1  Henry  I.'s  Charter  §§  3  and  4,  '•  Et  si  quis  baronum  vel  aliorum  hominum 
meorum  filiam  suam  nuptum  tradere  voluerit  sive  sororem,  sive  neptim,  sive  cognatam 
mecum  inde  loquatur  ;  sed  neque  ego  aliquid  de  suo  pro  hac  licentia  accipiam  neque 
defendam  ei  quin  earn  det,  excepto  si  earn  vellet  jungere  inimico  meo.  Et  si  mortuo 
barone  sive  alio  homine  meo  filia  haeres  remanserit,  illam  dabo  consilio  baronum 
meorum  cum  terra  sua.  Et  si  mortuo  viro  uxor  ejus  remanserit  et  sine  liberis  fuerit, 
dotem  suam  et  maritationem  habebit,  et  eam  non  dabo  marito  nisi  secundum  velle 
suum. 

"  Si  vero  uxor  cum  liberis  remanserit,  dotem  quidem  et  maritationem  habebit, 
dum  corpus  suum  legitime  servaverit,  et  eam  non  dabo  nisi  secundum  velle  suum. 
Et  terrae  et  liberorum  custos  erit  sive  uxor  sive  alius  propinquiorum  qui  justius  esse 
debebit.  Et  praecipio  quod  barones  mei  similiter  se  contineant  erga  filios  vel  filias 
vel  uxores  hominum  suorum." 

2  vii  9,  12.  3  P.  and  M.  i  305,  306. 

^cc.  4,  5,  6,  37;  see  McKechnie,  Magna  Carta  206-209;  the  provisions  against 
waste  were  re-enacted  by  3  Edward  I.  c.  21,  and  damages  were  in  some  cases  given  to* 
the  heir  by  6  Edward  I.  c.  5. 

^  20  Henry  IH.  cc.  6  and  7. 


64  THE  LAND  LAW 

were  abducted ;  and  by  providing  that,  if  the  child  married  with- 
out licence,  double  the  value  of  the  marriage  should  be  forfeited, 
and  the  land  should  be  held  by  the  lord  till  that  sum  was  paid. 
The  lord  could  not  compel  his  ward  to  marry  ;  but  the  same 
statute  provided  that  if  he  declined  the  match  his  lord  proposed 
he  must  pay  its  value,  "  quia  maritagium  ejus  qui  infra  aetatem 
est  mero  jure  pertinet  ad  dominum  foedi."  The  provisions  of 
this  statute  were  re-enacted  and  extended  in  1275.^  In  particular 
it  was  enacted  that  if  the  lord,  wishing  to  keep  the  land,  did  not 
marry  his  female  ward  at  fourteen,  he  should  keep  the  land  till 
the  ward  was  sixteen,  and  after  that  should  lose  his  rights  to 
wardship  and  marriage.^  Wardship  and  marriage,  therefore,  were 
valuable  proprietary  rights.  They  were  chattels  which  could  be 
sold,  which  could  be  bequeathed,  which  would  pass  to  the 
guardian's  executors  or  administrators.^  In  two  respects  only 
did  this  final  settlement  of  the  law  curtail  the  rights  of  the  lords, 
(i)  Apparently  they  lost  the  right,  which  perhaps  they  once  had, 
to  control  the  marriage  either  of  a  female  tenant  of  full  age  or  of 
the  daughter  of  a  military  tenant.^  It  was  only  the  king  who 
ultimately  retained  something  of  these  rights  in  his  power  to 
control  the  marriage  of  widows  who  held  of  him  in  chiefs  (2) 
The  heir  who  had  been  in  wardship  need  pay  no  relief/'  but  in 
spite  of  this  the  king  still  retained  his  right  to  half  a  year's  profits 
of  the  land  as  a  fine  for  suing  out  livery — i.e.  obtaining  the  livery 
of  seisin  of  the  lands  from  the  king.'^ 

We  have  seen  that  one  man  may  hold  of  many  different  lords. 
If  he  died,  leaving  an  infant  heir,  who  was  entitled  to  the  ward- 
ship and  marriage  ?  If  the  king  was  one  of  these  lords  there  was 
no  question.  He  was  entitled  to  the  wardship  both  of  all  the  lands, 
of  whomsoever  they  were  held,  and  of  the  person  of  the  heir,  and 
to  his  marriage,  to  the  exclusion  of  all  others.^  A  clause  of 
Magna  Carta  was  needed  to  prevent  the  king  from  exercising  his 
right  when  the  land  held  of  the  king  by  the  tenant  was  socage, 
fee    farm,  burgage,    or  petit  serjeanty,  and  when  the  king  held 

1  3  Edward  I.  st.  i  c.  22 ;  Y.B.  18,  19  Ed.  III.  (R.S.)  370,  372. 

2 See  Litt.  §  103;  and  for  a  discussion  of  these  statutes  cp.  Y.B.  35  Hy.  VI. 
Hil.  pi.  17. 

^  P.  and  M.  i  303;  cp.  Y.B.  30,  31  Ed.  I.  (R.S.)  312;  for  grants  of  wardship 
see  Madox,  Form.  nos.  519,  573-575 ;  Eynsham  Cart,  i  no.  572  ;  App.  VI. 

^  Glanvil  vii  c.  12. 

"*  Magna  Carta  c.  8  reserved  this  right  to  the  king  and  other  lords  ;  but  it  came 
to  be  important  only  in  the  case  of  the  king  ;  for  instances  see  Excerpta  e  Rot.  Fin. 
(R.C.)  i  7,  204 ;  the  latter  entry  runs,  •'  Stephanus  de  Sedgrave  finem  fecit  cum  rege 
centum  libris  pro  habendo  maritagio  Emmae  de  Canz  quae  fuit  uxor  Johannis  de 
Sedgrave  ad  maritandum  earn  cui  ipse  et  haeredes  vel  assignati  sui  voluerit  absque 
disparagatione ;  "  cp.  Y.B.  20  Ed.  III.  (R.S.)  i  544,  546. 

^  Magna  Carta  c.  3. 

■^  Bl.  Comm.  ii  76.  s  Bracton  f.  87. 


INCIDENTS  OF  FREE  TENURES  65 

merely  ut  de  honore  and  not  ut  de  corona}  If  the  king  was  not 
one  of  these  lords  each  lord  got  the  wardship  of  the  land  held  of 
him.  It  was  ultimately  settled  in  1285  that  the  wardship  of  the 
heir's  body  and  the  right  to  his  marriage  were  given  to  the  lord 
of  whom  the  heir  held  by  the  oldest  feoffment.^  But  these  rules 
as  to  mesne  lords,  which  were  often  complicated,  tended  to  fall 
into  disuse,  partly  because  of  the  extent  of  the  king's  right  of 
prerogative  wardship,  partly  because  of  the  effect  of  Quia 
Emptores.^  When  the  court  of  Wards  and  Liveries  was  estab- 
lished in  the  sixteenth  century,  the  rights  to  wardship  and  mar- 
riage were  almost  exclusively  the  king's  rights,  and  he  alone  was 
compensated  when  these  rights  were  abolished.^ 

These  rights  of  wardship  and  marriage  were  confined  to  the 
tenures  by  knight  service  and  grand  serjeanty.  They  were  never 
extended  to  socage  and  petty  serjeanty.^  The  rule  as  to  wardship 
which  ultimately  prevailed  in  the  case  of  such  tenants  is  that 
stated  by  Glanvil.^  "  The  heirs  of  socage  tenants  shall  on  the 
death  of  their  ancestor  be  under  the  guardianship  of  their  nearest 
relations,  provided,  however,  that  if  the  inheritance  has  descended 
from  the  father's  side  the  wardship  belongs  to  the  relations  on 
the  mother's  side,  but  if  the  inheritance  has  descended  from  the 
mother's  side,  then  it  belongs  to  the  relations  of  the  father.  For 
the  wardship  is  never  by  law  placed  in  the  hands  of  any  one  of 
whom  any  suspicion  can  be  entertained  that  he  may  or  will  claim 
any  right  to  the  inheritance."  At  first  the  wardship  of  socage 
tenants,  no  less  than  the  wardship  of  military  tenants,  was  re- 
garded as  a  valuable  right,  to  be  bought  and  sold.*"  But  in  the 
thirteenth  century  the  idea  that  wardship  imposed  duties  was 
growing.  The  Statute  of  Marlborough  (1267)  enacted  that  the 
heir,  when  he  attained  majority,  should  have  an  action  of  account 
against  his  guardian,  and  that  the  guardian  should  not  give  or  sell 
the  marriage  of  the  heir  "  but  to  the  advantage  of  the  foresaid 

^  cc.  37  and  43  ;  above  41  n.  2. 

^Bracton  ff.  87,  Sg-gib;  13  Edward  I.  st.  i  c.  16;  Y.BB.  21,  22  Ed.  I.  (R.S.) 
10 ;  6  Ed.  11.  (S.S.)  180 ;  6,  7  Ed.  II.  (S.S.)  I4g  seqq. ;  in  Y.B.  i,  2  Ed.  II.  (S.S.)  60 
it  is  said  by  Herle  that  before  the  statute  "  he  who  can  snap  up  the  body  of  the  heir 
shall  have  the  wardship,  and  the  other  shall  have  no  recovery  ;  "  for  a  case  where  this 
procedure  had  apparently  been  followed  see  6  Ed.  II.  (S.S.)  31. 

^  The  disregard  of  the  interests  of  mesne  lords  is  illustrated  by  the  ruling  in  Sir 
Drew  Drury's  Case  (1608)  6  Co.  Rep.  at  f.  74b,  that  if  the  king  makes  the  heir  a 
knight  in  the  life  of  his  father  he  is  out  of  wardship,  though  he  is  under  age  ;  see  also 
Sir  Henry  Constable's  Case  {1601)  8  Co.  Rep.  173a. 

4  TO  Ch3.rlcs  II    c    2a 

*Y.BB.  20,  21  Ed.  I.  (R.S.)  240;  21,  22  Ed.  I.  (R.S.)  180;  Bracton,  f.  85b, 
says  that  they  were  extended  to  socage  in  the  bishopric  of  Winchester— of  this 
Bracton  disapproved  ;  for  other  similar  instances  cp.  P.  and  M.  i  301,  302. 

"viic.  11;  cp.  Litt.  §§  123,  124. 

■''  Bracton  f.  8g,  cited  P.  and  M.  i  303  n.  4. 
VOL.   III.  — 5 


66  THE  LAND  LAW 

heir."  ^  Thus  guardianship  in  socage  developed  into  a  trusteeship.^ 
It  became  the  model  to  which  all  forms  of  guardianship  ultimately 
conformed/  just  as  socage  tenure  itself  became  the  tenure  in  which 
all  the  other  free  tenures  were  merged. 

(iv)  Aids. 

In  the  days  when  the  feudal  group  was  a  little  state  associated 
for  mutual  help  and  protection  the  lord  might  call  upon  the 
tenant  to  assist  him  in  emergencies.^  In  early  days  these 
emergencies  were  not  strictly  defined.  It  was  only  possible  to 
give  leading  instances,  such  as  the  knighting  of  an  eldest  son  or 
the  marriage  of  an  eldest  daughter.  Glanvil  declines  to  give  an 
exhaustive  list,  and  says  nothing  as  to  their  amount  except  that 
they  must  be  proportionate  to  the  value  of  the  fee.^  The  charter 
of  1 2 1 5  lays  it  down  that,  except  with  the  consent  of  the  com- 
mune concilium,  they  may  only  be  taken  on  three  occasions — to 
ransom  the  lord's  person,  to  make  his  eldest  son  a  knight,  and  to 
marry  his  eldest  daughter.®  This  clause  did  not  appear  in  later 
editions  of  the  charter,  and,  in  fact,  aids  were  taken  by  lords  for 
many  other  purposes — e.g.  to  enable  a  lord  to  pay  his  debts,  or  even 
to  stock  his  land.'''  Bracton  speaks  as  if  the  grant  of  aid  was  always 
a  favour  granted  by  the  tenant  to  help  his  lord  out  of  difficulties 
and  never  demandable  as  of  right^  But,  as  Maitland  points  out, 
though  there  may  be  historical  truth  in  this  theory,  it  was  be- 
coming obsolete.^  A  contribution  which  will  be  sued  for  in  the 
king's  courts  if  it  is  refused  cannot  be  said  to  depend  altogether 
on  the  favour  of  the  tenant. ^^  In  England,  as  in  France,  the 
tendency  was  to  fix  the  amount  of  the  aid  and  the  occasions  on 

1 52  Henry  III.  c.  17 ;  at  that  time  the  writ  of  Account  was  a  new  writ,  P.  and 
M.  i  303  n.  6. 

2  Litt.  §  125,  "  The  guardian  in  chivalry  hath  the  wardship  to  his  own  use,  and 
the  guardian  in  socage  hath  not  the  wardship  to  his  own  use,  but  to  the  use  of  the 
heir ;  "  cp.  Plowden  293  ;  but  the  guardian  could  do  certain  acts  in  his  own  name, 
e.g.  grant  copyholds,  Shopland  v  Ryoler  (1606)  Cro.  Jac.  98. 

3  12  Charles  II.  c.  24  §  9. 

^As  Blackstone  says  (Comm.  ii  63),  "Aids  were  originally  mere  benevolences 
granted  by  the  tenant  to  his  lord  in  times  of  difficulty  and  distress." 

^  ix  c.  8,  "  Postquam  vero  convenerit  inter  dominum  et  haeredem  tenentis  sui  de 
rationabili  relevio  dando  et  recipiendo,  poterit  idem  haeres  rationabilia  relevia  de 
hominibus  suis  inde  exigere,  ita  tamen  moderate  secundum  quantitatem  foedorum 
suorum  et  secundum  facultates,  ne  nimis  gravari  inde  videantur,  vel  suum  contene- 
mentum  amittere.  Nihil  autem  certum  statutum  est  de  hujusmodi  auxiliis  dandis 
vel  exigendis,  nisi  ut  praedicta  forma  inviolabiliter  observetur." 

^c.  12.  7  See  instances  cited  P.  and  M.  i  331. 

^  f.  36b,  •'  Nunquam  igitur  exigitur  auxilium,  nisi  praecedat  necessitas,  nee 
tenetur  aliquis  ad  hujusmodi  auxilium  prasstandum,  nisi  ex  indigentia  domini  sui 
capitalis,  et  ex  eo  quod  est  liber  homo  suus." 

^  P.  and  M.  i  331. 

'oy.B.  6,  7  Ed.  II.  (S.S.)  237;  cp.  Y.B.  33-35  Ed.  I.  (R.S.)  134,  where  in  an 
avowry  it  is  stated  that  "  when  the  vill  of  B  is  assessed  at  20s.  at  each  creation  of  a 
bishop  [clearly  a  form  of  aid]  the  lady  shall  pay  i6Jd.,  and  when  at  more,  more,  etc." 


INCIDENTS  OF  FREE  TENURES  67 

which  it  could  be  demanded,  and  thus  to  create  a  legal  obligation 
to  pay  it.^  In  1275  the  rate  of  the  aid  for  knighting  the  lord's 
eldest  son  and  for  marrying  the  lord's  eldest  daughter  was  fixed ,^ 
and  in  1350^  the  rates  so  fixed  were  made  binding  upon  the 
crown.  These  statutes  seem,  in  effect,  to  have  fixed  not  only 
the  amount  of  the  aid,  but  also  the  occasions  on  which  it  could 
be  demanded.  Aids  as  so  fixed  were  abolished  in  1660.'*  But 
it  is  interesting  to  note  that  as  early  as  i  503  the  commons  had 
imposed  a  tax  on  all  lands — freehold,  copyhold,  or  ancient 
demesne — part  of  the  consideration  for  which  was  the  release  of 
the  king's  rights  to  the  two  aids  then  due  for  the  marriage  of  his 
eldest  daughter  and  the  knighting  of  his  eldest  son.  The  reason 
assigned  for  taking  this  course  was  that  "  if  the  same  Aides  shuld 
be  of  them  levyed  and  had  by  reason  of  their  tenures,  accordyng 
to  the  Auncient  Lawes  of  this  Land,  shuld  be  to  theym  doubte- 
full,  uncerteyn  and  great  inquietness,  for  the  serche  and  non 
knowledge  of  their  severall  Tenures,  and  of  their  Landes  chargeable 
to  the  same "  ^ — a  reason  which  makes  it  clear  that  the  older 
theory  underlying  these  payments  had  by  that  time  completely 
disappeared.  The  plan  then  adopted  of  commuting  them  for  a 
Parliamentary  grant  foreshadows  the  course  which  a  century  and 
a  half  later  will  be  adopted  with  respect  to  all  these  incidents  of 
tenure. 

(v)  Escheat  and  forfeiture. 

All  land  is  held  of  some  lord.  That  lord  or  some  one  of  his 
predecessors  in  title  is  supposed  to  have  given  the  land  to  the 
tenant  or  some  one  of  his  predecessors  in  title.  Therefore,  if  the 
tenant  die  without  heirs  it  is  only  right  that  the  lord  should  have 
back  again  that  which  he  gave  to  the  tenant.  This  is  escheat 
propter  defectum  sanguinis.  Similarly,  if  the  tenant  commits  any 
gross  breach  of  the  feudal  bond — commits,  that  is,  a  "  felony  "  in 
the  original  sense  of  that  term  ^ — the  lord  may  take  again  that 
which  he  gave.     This  is  escheat  propter  delictum  tenentis. 

The  right  of  escheat  was  thus  a  tenurial  right  wholly  de- 
pendent upon  the  fact  that  the  freehold  had  no  tenant.  There- 
fore it  could  only  arise  when  a  tenant  in  fee  simple  died  without 
heirs  or  committed  felony.  If  the  estate  was  a  life  estate  it 
obviously  disappeared  when  the  tenant  died  ;  and  if  the  tenant 
committed  felony,  the  reversioner  or  the  remainder  man  became 

^  In  France  we  find  the  same  three  aids  as  are  fixed  by  Magna  Carta,  with  a 
fourth  to  assist  the  lord  who  is  going  on  crusade,  Esmein,  Histoire  du  Droit  Fran9ais 
220. 

■^3  Edward  I.  st.  i  c.  36.  ^25  Edward  III.  st.  5  c.  11. 

*  12  Charles  II.  c.  24. 

» R.P.  vi  532  (19  Hy.  VII.  no.  11).  "Vol.  ii  357-358. 


68  THE  LAND  LAW 

entitled.  Similarly,  if  the  estate  was  an  estate  tail,  the  reversioner 
or  remainder  man  could  bring  his  formedon  and  recover  the  land 
if  the  tenant  died  without  issue  or  committed  felony  before  the 
birth  of  issue.^  But,  in  these  cases,  it  was  the  operation  of  the 
Statutes  de  Donis  ^  and  Quia  Emptores  ^  which  clearly  differen- 
tiated this  right  of  the  reversioner  or  remainder  man  to  succeed 
on  the  expiration  of  a  particular  estate,  from  the  tenurial  right  of 
the  lord  to  take  the  fee  simple  by  escheat.  Before  the  passing  of 
De  Donis  there  were  no  estates  tail.  Gifts  which,  after  De  Donis, 
gave  an  estate  tail,  then  gave  an  estate  in  fee  simple  conditional.* 
Before  the  passing  of  Quia  Emptores  estates  in  fee  simple,  as 
well  as  other  estates,  were  held  of  the  donor.  It  followed  that  if 
the  donee  of  an  estate  in  fee  simple  died  without  an  heir,  or  if 
the  donee  of  an  estate  in  fee  simple  conditional  died  without 
having  had  an  heir  of  his  body,  the  lord  took  the  estate.  Whether 
he  took  it  as  a  reversion  or  as  an  escheat  it  was  neither  possible 
nor  necessary  to  say.  Thus  it  is  not  surprising  to  find  that  at 
this  period  the  words  "revert"  and  "escheat"  are  used  indis- 
criminately ;  for  it  was  not  till  the  passing  of  these  two  statutes 
that  it  was  possible  to  draw  the  modern  distinction  between 
them.^  It  is  not  till  then,  therefore,  that  the  incidents  of  the 
modern  estate  in  reversion  were  clearly  ascertained. *" 

The  history  of  the  two  varieties  of  escheat — escheat  propter 
defectum  sanguinis  and  escheat  propter  delictum  tenentis — has  been 
dissimilar. 

Escheat  propter  defectum,  sanguinis  is  still  part  of  the  law. 
But  in  practice,  owing  to  the  operation  of  the  statute  Quia  Emp- 
tores ^  in  destroying  mesne  tenure  or  the  evidence  of  its  existence, 
it  gradually  came  to  be  a  right  more  valuable  to  the  crown  than 
to  any  one  else ;  and  even  to  the  crown  it  came  to  be  of  little 
value  when  all  free  tenants  acquired  the  right  to  devise  freely  their 
estates.^ 

The  change  in  the  conception  of  felony  which  made  it  mean, 

^  F.N.B.  144A.  2 13  Edward  I.  st.  i  c.  i- 

3  18  Edward  I.  c.  i.  *  Below  111-114. 

^  See  Willion  v.  Berkeley  (1562)  Plowden  at  pp.  247-248  per  Anthony  Browne, 
J.;  P.  and  M.  ii  22-23;  H.L.R.  iii  170,  where  it  is  pointed  out  that,  in  a  MS. 
Register  of  Henry  III.'s  reign,  a  writ,  which  answers  the  purpose  of  a  writ  of 
formedon  in  the  reverter,  is  called  a  writ  of  escheat. 

8  Below  133.  7  Vol.  ii  348  ;  below  81. 

^Glanvil  vii  17  thus  expresses  the  rule,  *'  Ultimi  heredes  aliquorum  sunt  eorum 
domini.  Cum  quis  ergo  sine  certo  haerede  moritur,  quemadmodum  sine  filio,  vel  filia, 
vel  sine  tali  haerede  de  quo  dubium  non  sit  ipsum  esse  propinquiorem  haeredem  et 
rectum,  possunt  et  solent  domini  foedorum  feoda  ilia  tanquam  escaetas  in  manus  suas 
capere  et  retinere ;  quicunque  sint  domini,  sive  rex,  sive  alius ;  "  to  the  same  effect  Britton 
ii  326,  "  the  lord  shall  stand  in  place  of  the  heir  ;  "  Glanvil  and  Britton  do  not  mean 
necessarily  that  the  lord's  position  was  in  all  respects  the  same  as  that  of  the  heir,  cp. 
Bracton  f.  297b  ;  they  are  using  a  figurative  expression  to  describe  the  title  of  the  lord 
who  takes  by  escheat. 


INCIDENTS  OF  FREE  TENURES  69 

not  the  breach  of  the  feudal  bond,  but  serious  crime,  was  no  doubt 
at  first  profitable  to  the  lord.  He  obtained  an  escheat  propter  de- 
lictum tejientis  whenever  his  tenant  had  committed  one  of  a  grow- 
ing number  of  felonies.^  No  doubt,  too,  this  change  in  the  mean- 
ing of  the  term  "  felony  "  caused  escheat  to  the  lord  for  this  reason 
to  be  somewhat  destitute  of  meaning.  If  a  felony  is  a  crime 
against  the  state,  and  if  it  is  desirable  to  confiscate  the  property  of 
criminals,  one  would  think  that  the  state  should  benefit.  But  this 
would  have  been  too  serious  a  departure  from  feudal  conceptions 
to  be  insisted  on.  The  establishment  of  an  effective  criminal  law 
was  difficult  enough.  It  would  have  been  well-nigh  impossible 
if  it  had  diminished  the  proprietary  as  well  as  the  jurisdictional 
rights  of  the  landowner.  At  all  events,  whatever  may  have  been 
the  wishes  of  the  crown,  the  will  of  the  great  landowners  was 
clearly  and  decisively  expressed  in  the  clause  of  Magna  Carta  in 
which  the  crown  renounced  any  claim  to  forfeiture  on  the  ground 
of  felony.^  In  the  thirteenth  century,  then,  a  conviction  for  felony 
entailed  the  escheat  of  the  lands  of  the  felon  to  the  lord ;  and  the 
conviction  related  back  to  the  moment  of  the  commission  of  the 
crime,  so  that  all  intervening  dealings  with  the  property  were 
avoided.^  As  the  newer  conception  of  felony  prevailed  it  was  sup- 
posed to  have  this  effect  because  the  felon's  blood  was  attainted  or 
corrupted.  He  could  not  own  any  property  himself,  nor  could 
any  heir  born  before  or  after  the  felony  claim  through  him.^  The 
same  consequences  followed  upon  an  abjuration  of  the  realm,^  and 
upon  a  judgment  of  outlawry  upon  an  indictment  for  felony.^ 

In  all  such  cases  of  escheat  the  lord's  right  was  subject  to  the 
right  of  the  crown  to  "year,  day,  and  waste."  This  is  an  old 
right — it  appears  in  Glanvil  ^ — but  its  origin  is  obscure.  The 
wite  of  Anglo-Saxon  law  shows  us  that  the  king  was  regarded  as 
having  some  interest  in  the  enforcement  of  criminal  justice.^    This 

1  P.  and  M.  i  285. 

'^  (1215)  §  32,  "  Nos  non  tenebimus  terras  illorum  qui  convicti  fuerint  de  felonia, 
nisi  per  unum  annum  et  unum  diem,  et  tunc  reddantur  terrae  dominis  foedorum." 

3  Bracton  ff  30b,  130a  ;  at  f.  30b  he  cites  for  the  rule  Dig.  39,  5,  15  ;  P.  and  M. 
i  460 ;  but  in  the  case  of  conviction  on  an  appeal  of  felony  there  was  no  relation  back, 
Co.  Litt.  13a,  b,  390b. 

*  "  Et  sicut  non  valet  donatio  post  feloniam  perpetratam,  ita  nee  valebit  generatio 
quoad  successionem,  quantum  ad  hereditatem  paternam  et  maternam,  cum  sit  pro- 
genita  talis  ex  testiculo  et  sanguine  felonis,"  Bracton  f.  130a ;  Y.B.  20,  21  Ed.  I. 
(R.S.)  352  ;  Co.  Litt.  8a. 

5  P.  and  M.  ii  588,  589 ;  Coke,  Third  Instit.  217;  below  303-30^. 

^Bracton  f.  130a  ;  Coke,  Third  Instit.  212  ;  below  604-605. 

■^  vii  c.  17,  "  Terra  quoque  per  unum  annum  remanebit  in  manu  domini  regis, 
elapso  autem  anno,  terra  eadem  ad  rectum  dominum,  scilicet  ad  ipsum  de  cujus  foedo 
est,  revertetur,  verumtamen  cum  domorum  subversione  et  arborum  extirpatione ;  "  if 
a  lord  disregarded  the  right  of  the  crown  the  land  was  seized,  and  the  lord  was  made 
liable  for  mesne  profits,  the  Eyre  of  Kent  (S.S.)  i  58-59  ;  in  later  law  the  right  to  waste 
was  always  in  practice  compounded  for  by  the  lord,  Challis,  Real  Property  35. 

^  Vol.  ii  47. 


70  THE  LAND  LAW 

right  of  the  crown  may  be  a  new  way  of  expressing  that  interest. 
Continental  analogies,  however,  would  lead  us  to  suppose  that  the 
property  was  regarded  as  in  some  way  under  the  king's  ban — per- 
haps because  it  was  regarded,  like  the  deodand,  as  tainted  with 
guilt.^ 

This  cause  for  escheat  has  almost  disappeared  from  the  law. 
The  doctrine  of  abjuration,  with  the  right  of  sanctuary  to  which 
it  was  appendant,  was  abolished  in  1624.^  The  doctrine  of  cor- 
ruption of  blood,  as  far  as  it  prevented  any  descent  from  being 
traced  through  the  convicted  felon,  was  abolished  by  the  Inherit- 
ance Act  in  1834^  and,  after  being  modified  in  other  ways  by 
several  statutes,*  the  whole  law  of  escheat  for  felony,  together 
with  the  king's  right  to  year,  day,  and  waste,  was  abolished  in 
1870.^  All  that  remains  of  QschQdX  propter  delictum  tenentis  is 
escheat  as  a  consequence  of  outlawry  upon  an  indictment  for 
felony. 

The  right  of  forfeiture  in  no  way  depends  upon  tenure.  It  was 
the  prerogative  right  of  the  king  as  king  to  all  the  lands  of  a 
person  convicted  of  high  treason.^  Land  thus  forfeited  was,  if 
granted  out  by  the  crown,  held  ut  de  corona,  unlike  land  escheated 
for  felony  which,  if  granted  out  again,  was  held  ut  de  honored 
But  forfeiture  resembled  escheat  propter  delictum  tenentis  in  that 
the  crown's  right  related  back  on  conviction  to  the  time  when  the 
offence  was  committed.^  It  can  be  traced  as  far  back  as  John's 
reign.  Probably  at  that  time  the  crown  was  attempting  to  en- 
force a  right  to  the  land  of  all  felons.  But,  as  we  have  seen, 
Magna  Carta  distinctly  stated  that  the  crown  had  no  such  right  in 
the  case  of  ordinary  felony.®  In  the  case  of  high  treason  the 
crown  had  a  stronger  claim  to  override  the  claim  of  the  feudal 
lord.  Treason  is  an  offence  against  the  king  and  the  state.  It  is 
a  breach  of  the  bond  of  allegiance,  whereas  felony  had  once  been 
a  breach  of  the  feudal  bond  of  homage ;  and  no  doubt  it  seemed 

1  Maitland,  Coll.  Papers  ii  61,  Possession  for  a  year  and  a  day,  where  the  various 
effects  which  possession  for  this  period  might  have  in  different  circumstances  are  col- 
lected. We  may  perhaps  see  in  this  right  to  year,  day,  and  waste  some  reminiscence 
of  the  missio  in  bannum  regis  of  the  Prankish  kings— the  administrative  sequestration 
of  the  property  of  a  contumacious  defendant,  Borough  Customs  (S.S.)  ii  xvii,  xviii,  1. 

2  21  James  I.  c.  28  §  7 ;  for  abjuration  and  sanctuary  see  below  303-307. 
33,4  WiUiam  IV.  c.  106  §  10. 

^  54  George  III.  c.  14 ;  9  George  IV.  c.  31  §  2  ;  24,  25  Victoria  c.  100  §  8. 

^  33i  34  Victoria  c.  23  §  i — the  king's  right  to  year,  day,  and  waste  does  not  seem 
to  be  specifically  noted. 

8  P.  and  M.  i  332. 

'  Hale,  P.C.,  i  253-254 ;  for  this  distinction  see  above  41  n.  2. 

8  Challis,  Real  Property  36,  citing  Pimb's  Case  {1585)  Moore  196 ;  in  the  case  of 
estates  tail  the  effect  of  De  Donis  was  to  limit  the  forfeiture  to  the  life  interest  of  the 
traitor ;  but  26  Hy.  VIII.  c.  13  §  5  extended  the  right  of  the  crown  to  the  time  during 
which  issue  existed  who  might  have  inherited, 

"^  Above  69. 


INCIDENTS  OF  FREE  TENURES         71 

like  robbery  to  take  lands  from  the  feudal  lord  for  offences  called 
by  a  name  which  was  still  used  to  signify  an  offence  against  the 
relationship  of  lord  and  man.  The  crown  made  good  its  claim  in 
cases  of  high  treason.  The  lands  of  a  convicted  traitor  were  for- 
feited to  the  crown,  of  whatsoever  lord  they  were  held,  and  the 
lord  thereby  lost  all  claims  to  an  escheat.  As  we  have  seen,  it 
was  largely  this  conflict  of  interest  between  king  and  lord  which 
led  to  the  definition  of  high  treason  in  Edward  III.'s  reign.  ^ 
Forfeiture  upon  conviction  for  treason  was  abolished  in  1870 
by  the  same  statute  which  abolished  escheat  for  felony.^  It 
still  exists  as  a  consequence  of  outlawry  upon  an  indictment  for 
treason.^ 

The  rise  of  the  Use  in  the  Middle  Ages,*  and  the  subsequent 
growth  of  equitable  trusts  in  the  sixteenth  and  seventeenth 
centuries,^  naturally  raised  the  problem  of  the  relation  of  the  lord's 
right  of  escheat,  and  of  the  king's  right  of  forfeiture  to  these  new 
interests  in  the  land. 

In  the  Middle  Ages  this  problem  was  settled  upon  clear  and 
logical  principles.  These  rights  attached  only  to  the  legal  estate. 
Therefore  the  estate  of  the  cestuique  use  was  unaffected  by  them, 
just  as  it  was  unaffected  by  any  of  the  other  incidents  of  tenure. 
On  the  other  hand,  the  estate  of  the  feoffee  to  uses  was  subject  to 
them,  so  that  if  a  sole  feoffee  died  without  heirs,  or  committed 
felony  or  treason,  the  lord  or  the  king  could  claim  the  land  as  an 
escheat  or  a  forfeiture ;  "^  and  as  the  lord  or  the  king  was  in  **  in 
the  post,"  '^  i.e.  was  in  by  title  paramount,  they  were  not  bound  by 
the  trust. ^  We  shall  see  that  it  was  a  principal  object  of  the 
Statute  of  Uses  to  restore  to  the  crown  the  revenue  arising  from 
the  right  of  forfeiture  and  from  escheat  and  the  other  incidents  of 
tenure ;  and  that  it  succeeded  in  restoring  this  revenue,  because, 
when  it  applied,  it  transferred  the  legal  estate  of  the  feoffees  to 
uses  to  the  cestuique  use.^  In  later  law  the  liabilities  of  the  new 
equitable  estates  arising  after  the  Statute  of  Uses  to  the  rights  of 
escheat  and  forfeiture  respectively  diverged,  and  therefore  they 
must  be  considered  separately. 

(i?)  In  the  case  of  escheat  the  law  formerly  applicable  to  the 
use  was  followed.  If  the  cestuique  use  died  without  heirs  and 
intestate  or  committed  felony,  there  was  no  escheat.     The  trustee 

1  Vol.  ii  449-450,  475-476.  ^  33»  34  Victoria  c.  23  §  r. 

^L.Q.R.  xviii  297,  Outlawry,  Is  it  Obsolete  ? 

^  Bk.  iv.  Pt.  I.  c.  2.  5  Ibid,  and  cc.  4  and  8. 

«Bk.  iv.  Pt.  I.  c.  2. 

'  This  expression,  which  is  always  used  to  denote  that  the  person's  title  is  not  de- 
rived from  the  former  holder,  but  is  paramount  to  it,  is  obviously  derived  from  the  use 
of  the  same  expression  in  connection  with  the  writs  of  entry,  above  13. 

8  Bk.  iv.  Pt.  I.  c.  2.  9  Ibid. 


72  THE  LAND  LAW 

held  for  his  own  use.^  Lord  Mansfield,  it  is  true,  dissented  from 
this  view  of  the  law,  and  contended  that  in  such  a  case  there  was 
an  escheat  to  the  crown.^  This  view  always  had  its  supporters  ;^ 
but  it  was  not  till  1884  that  the  legislature  adopted  it  in  respect 
to  the  only  important  case  of  escheat  which  had  survived — escheat 
propter  defectum  sanguinis^  On  the  other  hand,  if  a  sole  trustee 
died  without  heirs  and  intestate  or  committed  felony  there  was  an 
escheat  and  the  crown  or  other  lord  was  not  bound  by  the  trust.  ^ 
Statutes  of  the  nineteenth  century  were  passed  to  obviate  the  hard- 
ships resulting  from  this  state  of  the  law.^  At  the  present  day 
escheat  for  felony  has  been  abolished,  and  the  Conveyancing  Act, 
1881,^  provides  that  such  estates  shall  devolve  upon  the  trustee's 
personal  representatives  notwithstanding  any  testamentary  dis- 
position;  and  the  Trustee  Act,  1893,^  gives  the  court  power  to 
vest  the  trust  estate  in  the  person  entitled  thereto. 

{U)  In  the  case  of  forfeiture  for  treason  statutes  of  Henry 
VIII.'s  and  Edward  VI. 's  reigns  provided  that  the  crown  should 
acquire  the  estates  held  to  the  use  of  a  person  who  had  committed 
high  treason ;  ^  and  these  statutes  were,  after  a  little  hesitation, 
held  to  apply  to  equitable  trusts. ^^  In  other  cases  in  which 
the  crown  was  entitled  to  land  by  virtue  of  its  prerogative, 
whether,  as  in  the  case  of  chattel  interests,  because  the  property 
was  bona  vacantia^^  or,  as  under  the  older  law,  because  land 
was  held  by  or  on  trust  for  an  alien,^^  it  was  entitled  to  both 
legal  and  equitable  interests.  Treason  committed  by  a  sole 
trustee  originally  meant  the  forfeiture  of  the  estate ;  but  the 
law  on  this  point  was  changed  by  the  same  series  of  statutes 
as  applied  to  escheat  for  felony.  ^^ 

'  Attorney- General  v.  Sands  (1668)  Hardres  488  ;  Hale,  P.C.  i  249  ;  Burgess  v. 
Wheate  (1757-1759)  i  Eden  177  ;  a  good  account  of  the  last-named  case  will  be  found 
in  an  article  on  the  Law  of  Escheat  by  F.  W.  Hardman,  L.Q.R.  iv  330-332. 

"^  I  Eden  at  pp.  215-239. 

3  L.Q.R.  iv.  33^-335.  ^47,  48  Victoria  c.  71  §  4. 

**  Peachy  v.  Duke  of  Somerset  (1722)  i  Stra.  at  p.  454;  Burgess  v.  Wheate 
1  Eden  at  p.  203 ;  Attorney-General  v.  Duke  of  Leeds  (1833)  2  My.  and  K.  343  ; 
Sanders,  Uses  (5th  ed.)  305  ;  exactly  the  same  principle  appHed  when  a  mortgagee  died 
without  heirs  and  intestate  ;  the  lord  took  free  from  the  mortgagor's  equity  of  redemp- 
tion ;  see  L.Q.R.  iv  329-330. 

^39,  40  George  IH.  c.  88  §  12;  59  George  IIL  c.  94;  11  George  IV.  and 
I  William  IV.  c.  60;  4,  5  William  IV.  c.  23  §  2 ;  i,  2  Victoria  c.  69;  13,  14  Victoria 
c.  60. 

'  44,  45  Victoria  c.  41  §  3. 

^  56,  57  Victoria  c.  53  §§  26,  29. 

»  33  Henry  VIII.  c.  20  ;  5,  6  Edward  VI.  c.  11 ;  Hale,  P.C.  i  240-244. 

10  Ibid  i  248-249. 

^^  Middleton  v.  Spicer  (1783)  i  Bro.  C.C.  201 ;  cp.  note  to  Burgess  v.  Wheate, 
I  Eden  at  pp.  259-260. 

^2  Attorney- General  v.  Sands  (1668)  Hardres  at  p.  495 /^r  Hale,  C.B.  ;  cp. 
Sanders,  op.  cit.  308-311 ;  L.Q.R.  iv  324. 

^3  Above  n.  6  ;  Sanders,  op.  cit.  305. 


{ 


POWER  OF  ALIENATION  73 

The  history  of  these  incidents  and  consequences  of  tenure 
bears  witness  to  the  same  tendencies  as  those  which  have  been 
noted  in  the  history  of  the  free  tenures  themselves.  Incidents 
like  homage,  primer  seisin,  wardship,  marriage  and  aids  being 
inconsistent  with  the  new  conception  of  landowning  as  a  form 
of  property  merely,  became  rapidly  meaningless,  and  only  sur- 
vived because  they  conferred  valuable  rights  upon  the  crown. 
Forfeiture  and  escheat  propter  delictum  teneniis  survived  longer 
on  grounds  of  public  policy.  On  the  other  hand,  incidents 
like  fealty,  relief,  and  escheat  propter  defectum  sanguinis  still 
survive,  partly  because  their  abolition  might  have  disturbed 
the  rights  of  private  persons,  but  chiefly  because  it  would  have 
been  difficult  to  destroy  them  without  rooting  up  the  whole 
conception  of  tenure.  Though  the  different  tenures  and  all 
their  incidents  lasted  on  till  1660,  it  cannot  be  doubted  that 
most  of  them  had  existed  as  burdensome  anomalies  for  at  least 
three  centuries.  The  land  law  had  become  property  law  pure 
and  simple  by  the  beginning  of  the  fourteenth  century.  The 
public  elements  once  contained  in  it,  to  which  the  different 
tenures  and  their  incidents  bore  witness,  had  evaporated.  This 
fact  will  be  more  clearly  brought  out  in  the  following  section, 
in  which  1  shall  trace  the  process  by  which  at  an  early  date 
all  free  tenants  had  gained  almost  complete  freedom  of  alienation. 

§  4.  The  Power  of  Alienation 

The  power  to  alienate  land  freely  was  in  the  twelfth  century 
affected  by  two  sets  of  causes.  In  the  first  place,  there  were 
certain  restrictions  imposed  in  the  interest  of  expectant  heirs. 
In  the  second  place,  there  were  certain  restrictions  imposed 
in  the  interest  of  the  maintenance  of  the  rights  and  duties 
involved  in  the  relation  of  lord  and  tenant. 

Restrictions  Imposed  in  the  Interest  of  Expectant  Heirs 

We  have  seen  that  in  the  Anglo-Saxon  period  it  was  only 
over  his  bookland  that  a  man  had  free  powers  of  disposition. 
Over  the  land  held  by  folk  right  his  powers  were  more  limited.^ 
In  the  future  the  rules  as  to  bookland,  so  far  as  concerns  trans- 
actions inter  vivos,  were  to  be  the  rules  of  the  common  law. 
But  this  was  not  clearly  settled  when  Glanvil  wrote.  In  his 
book  we  can  still  see  the  traces  of  the  old  rules ;  and  what  he 
tells  us  upon  these  matters  is  confirmed  by  the  conveyances  of 
this   period.     The    consent    of  the   heir  is   obtained ;    and    it  is 

1  Vol.  ii  68. 


74  THE  LAND  LAW 

sometimes  thought  worth  while  to  pay  a  price  to  obtain  it.^ 
Glanvil  tells  us  that  we  must  draw  distinctions  between  land 
acquired  by  purchase  and  that  acquired  by  inheritance  ^  and 
between  the  different  purposes  for  which  the  alienation  is  made. 
A  man  may  freely  give  a  marriage  portion  to  his  daughter,  or 
indeed  to  any  other  woman,  or  gifts  to  those  who  have  served 
him,  or  gifts  to  the  church.^  He  cannot,  as  a  rule,  make  gifts 
when  he  is  dying,  because  of  such  gifts  there  can  be  no  livery 
of  seisin.*  As  we  shall  see,  such  livery  of  seisin  is  beginning 
to  be  regarded  by  the  king's  court  as  the  first  essential  of  a 
valid  conveyance.^  But  even  these  gifts  may  stand  if  the 
heir  does  not  object.^  On  the  other  hand,  a  man  must  not 
so  alienate  as  to  deprive  his  heir,  or  his  heirs,  if  the  land  is 
partible,  of  his  or  their  reasonable  portions ;  and  though  he 
has,  as  a  rule,  more  power  over  acquired  than  inherited  land, 
he  cannot  alienate  even  the  acquired  land  if  this  is  needed  to 
secure  these  reasonable  portions  to  the  heirs. ^  Gifts  to  one 
child  which  will  deprive  the  others  of  their  due  share  are  es- 
pecially prohibited.^  The  severity  of  this  prohibition  may  well 
be  due  to  the  antiquity  of  the  rules.  At  an  early  period,  when 
there  was  no  trade  in  land,  it  would  be  favouritism  as  between 
the  children  rather  than  alienation  to  strangers  which  would 
chiefly  call  for  express  prohibition.  But,  seeing  that  gifts  to 
daughters  on  their  marriage  or  to  retainers  or  to  the  church 
were  allowed,  it  was  easier  to  make  such  gifts  as  these  than 
to    make  gifts  to   a  child    which  might  diminish  the  shares  of 

^  P.  and  M.  ii  307-309  and  references  there  cited ;  cp.  Madox,  Form.  nos. 
426,  427. 

'^  Glanvil  vii  i,  "  Aut  habet  hereditatem  tantum  aut  questum  tantum ;  "  *'  Sin 
autem  et  hereditatem  et  questum  habuerit,  tunc  indistincte  verum  est  quod  poterit 
de  questu  suo  quantumlibet  partem  sive  totum  cuicunque  voluerit  dare ;  "  Somner, 
Gavelkind  40,  and  Charter  of  1204,  cited  P.  and  M.  ii  307,  n.  3. 

•' "  Potest  itaque  quilibet  liber  homo  terram  habens  quandam  partem  terrae  suse 
cum  filia  sua,  vel  cum  aliqua  alia  qualibet  muliere,  dare  in  maritagium  sive 
habuerit  heredem  sive  non,  velit  heres  vel  non,  imo  et  eo  contradicente  vel  reclamante. 
Quilibet  etiam  cuicunque  voluerit  potest  dare  quandam  partem  sui  liberi  tenementi, 
in  remunerationem  servitii  sui,  vel  loco  religioso  in  elemosina." 

* "  Si  vero  donationem  talem  nulla  sequuta  fuerit  seisina,  nihil  post  mortem 
donatoris  ex  tali  donatione  contra  voluntatem  heredis  efficaciter  peti  potest." 

^  Below  221-222,  224 ;  vol.  ii  352-353. 

^ "  Tamen  hujusmodi  donatio  in  ultima  voluntate  alicui  facta  ita  tenere  si  cum 
consensu  heredis  fieret,  et  ex  suo  consensu  confirmaretur." 

'  "  Si  vero  questum  tantum  habuerit  .  .  .  non  totum  questum  non  potest  filium 
suum  heredem  exheredare." 

^ "  Si  autem  plures  habuerit  filios  mulieratos  non  poterit  de  facili  preter 
consensum  heredis  sui  filio  suo  postnato  de  hereditate  sua  quantam  libet  partem 
donare.  Quia  si  hoc  esset  permissum  accideret  inde  frequens  prius  natorum 
filiorum  exheredatio,  propter  majorem  patrum  affectionem  quam  saepe  erga  post 
natos  filios  suos  habere  solent;  "  cp.  Britton  ii  245,  when  the  ancestor  has  agreed 
to  give  his  wife  dower  he  cannot  increase  it  to  the  heir's  prejudice — this  may  be 
a  survival. 


POWER  OF  ALIENATION  75 

the  other  children ;  and  this  anomaly  became  the  more  striking 
as  the  rule  of  primogeniture  was  extended  from  lands  held  by 
military  tenure  to  lands  held  by  the  other  kinds  of  free  tenure. 
The  eldest  son  was  the  heir.  Without  his  consent  nothing 
could  be  given  to  the  younger  sons,  whereas  something  could 
be  given  to  a  stranger — in  fact,  the  position  of  a  bastard  was 
preferable  to  that  of  a  legitimate  child.  ^  The  rule  thus  reduced 
to  an  absurdity  had  disappeared  from  English  law  by  the  time 
of  Bracton.^  As  Maitland  puts  it,  "  Free  alienation  without 
the  heir's  consent  comes  in  the  wake  of  primogeniture."^  The 
word  "  heirs "  in  a  deed  of  gift  comes  to  be  merely  a  word  of 
[limitation  and  not  a  word  of  purchase — it  marks  the  extent  of 
the  gift  and  gives  nothing  to  the  heirs.  The  common  law 
from  the  thirteenth  century  onwards  knows  no  retrait  lignagner. 
\  The  heir  was  in  some  degree  compensated  by  the  prohibi- 
Ition  of  the  devise  of  land.  The  question  whether  or  no  these 
jdevises  should  be  allowed  was  an  open  question  when  Bracton 
|wrote;  and  his  opinion  as  to  their  validity  fluctuated.*  As 
jMaitland  points  out,  we  can  find  at  least  one  case  in  the  latter 
half  of  the  thirteenth  century  in  which  a  large  estate  passed 
junder  such  a  devise ;  ^  and,  in  books  of  precedents,  forms  for 
jthese  devises  are  given. ^  Probably  the  decision  to  prohibit 
itheqi  was  caused  chiefly  by  the  fact  that  to  permit  them  would 
lower  the  value  of  the  incidents  of  tenure,  and  enormously 
{diminish  the  lord's  chance  of  an  escheat.  Partly,  perhaps,  it 
pay  have  been  felt  that  something  was  due  to  the  heir ;  partly 
jthat  to  allow  land  to  pass  by  will  would  have  created  a  large 
exception  to  the  rule  that  land  cannot  pass  without  a  genuine 

I       ^  •'  Sed   nunquid   filio   suo   bastardo   potest  quis   filium  et   heredem  habens  de 

(lereditate   sua   donate  ?     Quod   si   verum   est  tunc  melioris   conditionis  est  in  hoc 

aastardus  filius  quam  mulieratus  postnatus — quod  tamen  verum  est." 
£         2  Bracton's   Note   Book  case    1054,    "  Et   Radulphus    [the  plaintiff]  venit    et 
e  ;ognoscit    cartam   patris   sui    [i.e.    the   charter   conveying  the  landj  .  .  .  sed  petit 
:    udicium  si  pater  suus  potuit  dare  totam  terram  quam  tenuit  per  servicium  militare 
;,  luUo  retento  servicio  sibi  vel  heredibus  suis  " — ^judgment  is  given  for  the  defendant, 

•  quia  Radulphus  cognoscit  cartam  patris  sui." 
I         '  P.  and  M.  ii  307. 

*ff.  i8b,  19  bethinks  that  "though  this  is  unheard  of,"  a  writ  might  well  be 

termed  to  meet  the  case;  but  ff.  49,  60b,  412b  are  opposed  to  this;  cp.  also 
I  iGlanvil  vii  i  and  5. 

j  '^  P.  and  M.  ii  27 — in  1262  Henry  III.  allowed  Peter  of  Savoy  to  bequeath  the 
!i.  Iionour  of  Richmond ;   when   he   died    the   honour   passed   under   his  will ;    "  it  is 

|30ssible  that  the  discussion  of  this  famous  case  convinced  the  king  and  the  great 
IS  Teudatories  that  they  would  lose  a  great  many  wardships  and  marriages  if  land 
eij  pecame  devisable  per  for  mam  doniy 

ijj         "L.Q.R.  vii   67,  68  Maitland  says,  "I  am  persuaded  by  Bracton's  vacillating 

4  anguage,  by  a  precedent  that  I  have  found  in  another  collection,  and   by  several 

::i  ictual  deeds  that  I  have  seen,  that  this  attempt  very  nearly  succeeded,  that  the 

{  x)wer  of  devise  given   by  the  statutes  of  Henry  VIII.  and   Charles  II.  was  very 

jiearly  won  in  the  middle  of  the  thirteenth  century." 


76  THE  LAND  LAW 

livery  of  seisin.^  However  that  may  be,  from  the  end  of  the 
thirteenth  century  the  law  was  settled.  The  ancestor  could 
alienate  as  he  pleased  in  his  lifetime.  He  could  not  prevent 
the  heir  from  inheriting  what  he  had  left  at  his  death. 

The  Feudal  Restrictions  imposed  in  the  Interests  of  the  Mainten- 
ance of  the  Rights  and  Duties  involved  in  the  Relation 
of  Lord  and  Tenant 

The  history  of  the  free  tenures  has  shown  us  that,  to  a 
greater  or  a  less  degree,  landowning  in  the  eleventh  and  twelfth 
centuries  was  a  matter  of  public  law.  We  at  the  present  day 
would  consider  it  anomalous  if  we  were  told  that  offices  which 
involved  the  performance  of  public  duties  were  freely  alienable. 
As  we  have  seen,  such  offices  were  often  alienable  in  the  past.^ 
The  proprietary  element  in  feudalism  was  so  strongly  developed 
in  this  country  that  it  was  sometimes  improperly  extended  to 
things  which  should  never  have  been  regarded  as  property  at 
all.  Probably  something  of  the  modern  feeling  against  the 
alienability  of  public  offices  was  in  the  twelfth  and  thirteenth 
centuries  directed  against  the  free  alienation  of  land ;  and 
probably  that  feeling  was  stronger  in  the  higher  ranks  of  the 
feudal  hierarchy  than  in  the  lower.  Such  dignified  persons  as 
earls,  barons,  or  tenants  by  grand  serjeanty  were  expected  to 
fill  very  public  positions  and  to  perform  very  onerous  duties. 
We  shall  see  that  restrictions  upon  the  power  of  free  alienation 
lasted  longer  in  the  case  of  the  tenants  in  chief  than  in  the 
case  of  other  tenants.^ 

It  is  possible  that  the  very  generality  of  this  feeling  that  free 
alienation  was  "  contrary  to  public  policy "  prevented  any  very 
definite  statement  of  it  as  a  principle.  There  is  no  mention  of  it 
in  Glanvil,  though  he  mentions,  as  we  have  seen,  the  analogous 
subject  of  the  restriction  upon  free  alienation  in  the  interest  of  the 
heir.*  But  there  is,  as  Maitland  has  shown,  plenty  of  evidence 
from  charters  of  conveyance  that  the  lord's  consent  to  a  gift  by 
a  tenant  was  thought  desirable ;  ^  and  there  is  a  little  evidence 

^  Vol.  ii  352-353 ;  P.  and  M.  ii  326,  327. 

2  Vol.  i  19,  250-251,  259-260,  425,  439,  App.  XXX. 

3  Below  83-84.  •*  Above  73-74. 

''P.  and  M.  i  321-327  and  authorities  there  cited;  Madox,  Form.  nos.  71, 
73>  74.  77.  83,  98,  676;  below  228;  at  p.  324  Maitland  says,  "It  is  quite  imposs- 
ible for  us  to  hold  that  the  restriction  expressed  in  the  charter  of  12 17  was  a  new 
thing,  or  that  the  free  alienability  of  the  fee  simple  is  the  starting-point  of  English 
law ;  we  must  be  content  with  a  laxer  principle,  with  some  such  idea  as  this,  that  the 
tenant  may  lawfully  do  anything  that  does  not  seriously  damage  the  interests  of  his 
lord.  He  may  make  reasonable  gifts,  but  not  unreasonable.  The  reasonableness  ol 
the  gift  would  perhaps  be  a  matter  for  the  lord's  court;  the  tenant  would  be  entitled 
to  the  judgment  of  his  peers;  "  cp.  Wright,  Tenures  154-157,  and  Gilbert,  Tenures 
51,  52,  who  affirm  that  the  licence  of  the  lord  was  needed  for  alienation,  with  Coke. 


FEUDAL  RESTRICTIONS  77 

that  lords  sometimes  consulted  their  tenants  before  they  made  a 
conveyance  of  their  own  land.^  As  we  shall  see,  one  aspect  of 
the  law  as  to  the  necessity  for  the  tenant's  attornment  on  the 
I  alienation  of  a  seignory  was  based  upon  the  wrong  done  to  a 
tenant  if  his  lord,  by  alienating  his  seignory,  substituted  for  him- 
jself  a  personal  enemy  of  the  tenant,  or  one  incapable  of  fulfilling 
Ithe  duties  of  a  lord.^  Though,  therefore,  we  get  in  Glanvil  no 
[definite  statement  as  to  restraints  upon  alienation  based  on  the 
feudal  principle,  such  as  we  get  in  the  law  of  France  of  the  same 
period,  and  even  later,^  we  should  probably  not  be  far  wrong  if 
Ave  concluded  that  such  principles  were  generally  recognized  in 
England — so  generally  recognized  that  there  was  little  need  to 
make  definite  statements  about  them. 

In  the  thirteenth  century  both  in  France  and  England  land- 
pwning  was  tending  to  become  more  and  more  exclusively  a 
branch  of  the  law  of  property.  Just  as  ideas  drawn  from  Roman 
law  helped  to  build  up  the  conception  of  the  state,  so  they  helped 
^o  define  and  strengthen  the  legal  conception  of  ownership.  The 
)\vner  of  land  is  an  owner  of  property;  he  has  the  dominium, 
:hough  it  is  land  of  which  he  is  dominus.  Thus  we  find  that  both 
n  England  and  in  France  these  old  restraints  on  the  freedom  of 
ilienation  tend  to  disappear.  The  process  and  the  final  result 
jire  different ;  but  the  general  tendency  is  the  same.  We  can  see 
:hat  in  England  this  general  tendency  was  welcomed  and  strongly 
promoted  by  the  judges  of  the  royal  courts.  In  fact,  they 
sympathized  with  it  on  two  separate  grounds — on  technical 
grounds  because  it  gave  to  the  owner  a  power  which,  according 
.0  Roman  law,  all  owners  ought  to  have,*  on  grounds  of  public 
policy  because  it  reduced  landowning  to  mere  property  law,  and 
hereby  broke  up  the  solidarity  of  the  feudal  group.  ^  But  the 
)kl  ideas,  though  never  expressed  in  definite   rules,  died  hard, 

>econd  Inst.  65,  who  thought  that  as  a  rule  the  tenant  could  alienate ;  probably  all 
hese  earlier  authorities  are  inclined  to  give  too  sharp  an  edge  to  vague  customary 
,ules ;  Esmein,  Histoire  du  Droit  Fran^ais  238-240,  comes  to  a  conclusion  somewhat 
limilar  to  that  of  Maitland ;  but  in  France  the  original  restrictions  on  alienation  were 
more  definitely  expressed  than  in  England,  and  the  freedom  ultimately  acquired  less 
omplete. 

'  P.  and  M.  i  327 ;  cp.  Esmein,  op.  cit.  240 ;  ibid  n.  3  he  notes  that  several  lords 
siti  Languedoc  in  1360  refused  to  comply  with  the  treaty  of  Bretigny  on  this  ground. 
J      2  Below  82. 

'I  'Esmein,  op.  cit.  238,  citing  Lihri  Feudorum  i  13,  ii  9,  34,  39,  40,  Grand 
Koutumier  de  Normandie  (thirteenth  century),  and  Uancienne  coutume  de  Bourgogne 
cjlfourteenth  century). 

^1  *  Bracton  f.  46b,  "  Est  autem  libertas,  naturalis  facultas  ejus,  quod  quique  facere 
'Pibet,  quod  voluerit,  nisi  quod  de  jure  vel  vi  prohibetur.  .  .  .  Cum  igitur  donatio  pura 
,  jit  et  perfecta  sine  conditione  vel  servitute  imposita,  dici  possit  libera,  et  cum  donatio 
'/  em  faciat  accipientis,  et  sit  libera,  et  ex  libertate  sequatur,  quod  donatorius  de  re 
^i.ata  facere  possit,  quod  voluerit,  si  rem  ulterius  dederit,  domino  suo  non  injuriatur, 
■'1  um  totum  habuerit  quod  ad  ipsum  pertinuerit." 
5  Vol.  187-88. 


78  THE  LAND  LAW 

because  they  represented  very  general  and  very  deeply  rooted 
traditional  ideas  as  to  the  ordering  of  society.  How  general  and 
how  deeply  rooted  these  ideas  were  we  can  see  from  the  fact  that 
during  the  mediaeval  period  a  recrudescence  of  feudal  ideas  was 
always  ready  to  occur,  weakening  the  state  and  perverting  the 
law.^  Thus  we  are  not  surprised  to  find  that  Bracton,  when  he 
lays  it  down  that  an  owner  of  land  can  freely  or  almost  freely 
alienate  his  land,  is  conscious  that  he  is  laying  down  a  new  and 
an  unpopular  doctrine ;  and  that  therefore  his  statement  of  the 
law  is  both  argumentative  and  apologetic.^ 

Though  the  newer  ideas  as  to  the  rights  of  owners  and  the 
position  of  the  land  law  were  undermining  the  feudal  restraints 
on  alienation,  changed  social  conditions  were  demanding  the  im- 
position of  another  restraint  based  upon  other  grounds.  As  in 
the  days  of  Bede,^  so  in  the  thirteenth  century,  the  evils  of  gifts 
of  land  to  the  religious  in  mortmain  were  beginning  to  be  felt. 
Lords  were  deprived  of  the  incidents  of  tenure ;  ^  and  the  land 
itself  was  rendered  inalienable.  Such  gifts  therefore  were  opposed 
to  the  interests  of  the  lords  and  offended  the  prejudices  of  the 
lawyers. 

In  some  respects  Magna  Carta  reflects  very  well  the  state  of 
public  opinion  at  the  beginning  of  the  thirteenth  century.^  In 
no  respect  does  it  do  so  more  faithfully  than  in  the  clauses  which 
deal  with  this  question  of  freedom  of  alienation.  The  barons 
resented  the  tendency  to  do  away  with  all  restraints  upon  aliena- 
tion by  their  tenants.  This,  no  doubt,  was  the  cause  for  enacting 
that,  *'  No  freeman  from  henceforth  shall  give  or  sell  any  more  of 
his  land,  but  so  that  of  the  residue  of  the  lands  the  lord  of  the  fee 
may  have  the  service  due  to  him  which  belongeth  to  the  fee."  * 
All  classes  of  lay  lords  saw  their  interests  endangered  by  the 
acquisitive  capacity  of  the  religious  houses.  This  no  doubt  was 
the  cause  for  enacting  that,  ''It  shall  not  be  lawful  from  hence- 
forth to  any  to  give  his  lands  to  any  religious  house,  and  to  take 
the  same  again  to  hold  of  the  same  house.  Nor  shall  it  be  law- 
ful to  any  house  of  religion  to  take  the  lands  of  any,  and  to  lease 

'  Vol.  ii  408,  415-416. 

2f.  45b,  "  Sed  posset  aliquis  dicere,  quod  ex  hoc,  quod  donatorius  ulterius  dat  et 
transfert  rem  donatam  ad  alios,  quod  hoc  facere  non  potest,  quia  per  hoc  amittit 
dominus  servitium  suum,  quod  quidem  non  est  verum,  salva  pace  et  reverentia 
capitalium  dominorum.  .  .  .  Cum  enim  quis  tenementum  dederit,  certum  dat  tene- 
mentum  tali  modo,  ut  certas  consuetudines  recipiat  et  certum  servitium.  .  .  .  Et  unde 
de  jure  plus  petere  non  poterit,  si  habuerit  quod  convenit,  et  sic  tollat  quod  suum 
fuerit,  et  vadat." 

3  Vol.  ii  68. 

4  Vol.  ii  348-349;  cp.  Y.B.  30,  31  Ed.  I.  (R.S.)  62. 
s  Vol.  ii  208. 

^(1217)  c.  39  ;  Bracton's  Note  Book  case  1248,  where  the  clause  was  applied  to 
prevent  a  gift  in  frankalmoin. 


FEUDAL  RESTRICTIONS  79 

the  same  to  him  of  whom  they  were  received  to  be  holdea  If 
any  from  henceforth  so  give  his  lands  to  any  religious  house,  and 
thereupon  be  convict,  the  gift  shall  be  utterly  void,  and  the  land 
shall  accrue  to  the  lord  of  the  fee."^  Both  these  clauses  are 
vague,  because  both  attempt  to  deal  with  problems  upon  which 
as  yet  there  had  been  no  need  for  definite  rules.  Both  demand 
that  some  control  shall  be  placed  upon  freedom  of  alienation ;  but 
the  principles  upon  which  that  control  is  demanded  are  very 
different.  The  first  represents  the  desire  to  maintain  the  older 
feudal  conception  of  land-holding;  the  second  the  desire  to 
maintain  the  rights  of  landowners  and  to  guard  the  state  against 
a  public  danger.  Both  clauses  show  that  the  vague  customary 
practices  no  longer  sufficed — that  the  time  had  come  for  positive 
law  to  deal  expressly  with  this  question  of  freedom  of  alienation. 
They  form,  therefore,  a  convenient  starting-place  for  the  history 
of  that  law.  I  shall  deal  (i)  with  the  feudal  restraints  upon  free- 
dom of  alienation,  and  (ii)  with  the  restraints  upon  alienation  to 
the  religious  houses. 

(i)  Feudal  restraints  upon  freedom  of  alienation. 

We  must  at  the  outset  distinguish  the  case  of  the  mesne 
tenant  and  the  mesne  lord  from  the  case  of  the  tenant  in  chief 
and  the  king. 

{a)  The  mesne  tenant  and  the  mesne  lord. 

How  far  could  the  mesne  tenant  alienate  his  land  without  the 
consent  of  his  lord?  How  far  could  the  mesne  lord  alienate  his 
seignory  without  consulting  his  tenant  ?  These  two  questions  are 
obviously  parts  of  the  same  problem,  but  they  involved  somewhat 
different  considerations  and  were  answered  in  different  ways. 

In  answering  the  first  question — how  far  could  the  mesne 
tenant  alienate  his  land  without  the  consent  of  his  lord? — we 
must  begin  by  noting  that  alienation  might  take  the  form  either 
of  subinfeudation  or  of  substitution.^  If  B  is  A's  tenant,  B  may 
either  enfeoff  C  of  part  of  his  land  so  that  he,  B,  is  C's  lord  and 
remains  A's  tenant ;  or  he  may  put  C  in  his,  B's,  place,  so  that 
C  is  now  A's  tenant,  and  he,  B,  drops  out  entirely.  The  first  is 
a  case  of  subinfeudation,  the  second  a  case  of  substitution.  In 
the  first  case  Bracton  argued  strongly  that  no  legal  wrong  {injuria) 
was  done  to  the  lord,  though  in  fact  the  lord  was  damaged.  B 
was  still  his  tenant.  A  could  still  distrain  for  B's  services  on  the 
whole  of  B's  fee.  A's  incidents  of  tenure  might  be  diminished  in 
value,  but  of  this  the  law  would  take  no  account.  Incidents  of 
tenure  were  only  incidents.      If  A  got  his  services  he  must  be 

^  (1217)  c.  43.  2  p^  and  M.  i  310,  311. 


80  THE  LAND  LAW 

content.^  The  second  is  a  much  weaker  case  for  the  tenant. 
Here  B  drops  out,  and  it  would  seem  that  the  lord  might  rightly 
object  to  having  C,  a  poor  man  perhaps,  or  his  personal  enemy, 
imposed  upon  him  as  his  tenant  instead  of  B.  In  Edward  III.'s 
reign  some  thought  that  in  such  a  case  the  lord  could,  before  the 
statute  Quia  Emptores,  have  declined  to  accept  the  feoffment^ 
Nevertheless  Bracton  argues  that  even  in  this  case  B  has  full 
power  to  substitute  without  consulting  A.^  There  is  a  slight 
hint,  perhaps,  in  one  passage  that  the  lord  should  be  allowed  to 
exercise  a  right  of  pre-emption  ;  but  it  is  little  more  than  a  hint ;  ^ 
and  in  other  passages  Bracton  is  clearly  in  favour  of  giving  to  the 
tenant  the  fullest  powers  of  substitution.^  English  law  has  never 
permitted  a  ''  retrait  feodaiy 

The  question  was  finally  settled  by  the  statute  Quia  Emp- 
tores^ (i2go).  As  we  have  seen,  the  incidents  of  tenure  were  at 
that  date  more  important  to  the  lords  than  the  services  reserved/ 
The  tenant  wanted  the  power  of  free  alienation.  The  lord  did  not 
want  to  lose  his  incidents.  A  compromise  was  made  by  this 
statute ;  and  it  was  a  compromise  which  it  was  the  more  easy  to 
make  seeing  that  lords  and  tenants  did  not  form  two  exclusive 
classes.  Many,  perhaps  most,  free  tenants  were  both  lords  and 
tenants  in  respect  of  different  parts  of  their  possessions.  The 
statute  enacted  that  "  from  henceforth  it  shall  be  lawful  to  every 
freeman  to  sell  at  his  own  pleasure  his  lands  or  tenements  or 
part  of  them,  so  that  the  feoffee  shall  hold  the  same  lands  or 
tenements  of  the  chief  lord  of  the  same  fee,  by  such  service  and 
customs  as  his  feoffor  held  before."  If  part  of  the  land  were 
conveyed  the  services  were  to  be  apportioned.  The  statute  was 
to  apply  only  to  conveyances  in  fee  simple.^  It  was  settled  in 
Edward  II.'s  reign  that  the  lord  could  not  evade  the  statute  by 

^  f.  45b,  •'  Non  enim  fit  donatio  tali  modo,  quod  habeat  custodiam  terras  et 
heredis  et  maritagium,  sed  quod  habeat  homagium  et  servitium." 

2Y.B.  17,  18  Ed.  III.  (R.S.)  324  per  R.  Thorpe,  arguendo,  "Before  the  statute 
Quia  Emptores,  even  though  my  tenant  aliened  in  fee  simple  no  law  compelled  me 
to  accept  the  feoffment ;  then  my  avowry  was  good  upon  my  former  tenant  and  upon 
his  heirs,  and  I  should  avow  upon  the  heirs  for  a  relief,  notwithstanding  the  con- 
veyance." 

3f.  81,  "  Si  tenens  cum  homagium  fecerit  domino  suo,  se  dimiserit  ex  toto  de 
haereditate  sua  et  ahum  feoffaverit,  tenendum  de  domino  capitali,  et  quo  casu  tenens 
absolvitur  ab  homagio  et  extinguitur  homagium,  velit  nolit  dominus  capitalis." 

*  ff.  46,  46b— in  a  case  where  there  is  a  feoffment  with  a  condition  against  aliena- 
tion, if  the  feoffee  has  aUenated,  and  the  lord  does  not  immediately  eject  the  alienee, 
but  only  ejects  him  after  an  interval,  he  should  restore  the  land  to  the  feoffee,  "  nisi 
forte  dare  voluerit  valorem  vel  precium." 

5  Above  77,  78.  G 18  Edwatd  I.  c.  i. 

'  Vol.  ii  348-349. 

818  Edward  I.  c.  i  §  3  ;  Y.B.  21,  22  Ed.  I.  (R.S.)  641,  "The  statute  Quia 
Emptores  terrarum,  etc.,  is  understood  of  the  case  of  one  enfeoffing  another  in  fee 
simple,  and  not  in  fee  tail;"  see  Y.B.  3,  4  Ed.  II.  (S.S.)  for  an  illustration  of  the 
effect  of  its  working. 


FEUDAL  RESTRICTIONS  81 

charging  fines  upon  alienation.^  The  result  was  to  give  to  the 
tenant  in  fee  simple  full  power  of  alienation  by  way  of  substitu- 
tion, but  to  stop  all  subinfeudation  when  a  grant  was  made  in 
fee  simple.  If  a  mesne  lord  has  at  the  present  day  a  tenant  in 
fee  simple  of  lands  of  free  tenure,  that  tenure  must  have  been  in 
existence  before  the  year  1290. 

There  are  two  features  of  this  settlement  of  the  question  of 
the  freedom  of  alienation  to  which  it  is  necessary  to  call  attention 
at  this  point.  Firstly,  because  the  statute  stopped  all  subinfeuda- 
tion when  a  grant  was  made  in  fee  simple,  it  set  in  motion  a 
process  by  which  in  course  of  time  the  importance  of  merely  tenurial 
principles  has  been  immensely  decreased.  "  It  is,"  says  Challis,^ 
"  the  general  effect  of  the  statute  of  Quia  Emptores,  so  often  as  a 
mesne  tenure  for  a  fee  simple  is  extinguished  by  union  of  the 
land  and  the  lordship  in  the  same  hands,  to  prevent  the  mesne 
tenure  from  being  ever  again  revived  by  any  act  of  the  parties. 
Thus,  by  the  gradual  extinction  of  the  mesne  tenures,  the  seignory 
of  all  freehold  lands  held  for  a  fee  simple  tends  to  become  con- 
centrated in  the  crown."  The  principle  and  consequences  of 
tenure  tend  to  become  simplified;  and  that  means  the  removal 
of  a  great  obstacle  to  the  conception  of  the  land  law  merely  as 
property  law.  This,  as  we  shall  see,  is  illustrated  by  the  history 
of  the  law  as  to  land  which  is  held  by  copyhold  tenure.  To  this 
day  the  consequences  of  tenure  form  a  real  hindrance  to  its  pro- 
fitable user.  Secondly,  the  statute  did  not  extend  to  the  crown.  ^ 
The  king  was  the  one  person  who  was  always  lord  and  never 
tenant.  He  could  freely  alienate  already,  and  could  therefore 
gain  no  advantage  by  the  statute.  By  insisting  on  his  right  to 
prevent  his  tenants  in  chief  from  alienating  he  could  derive  some 
pecuniary  benefit ;  and,  as  the  statute  bound  them,  he  would  still 
be  assured  of  his  incidents  of  tenure  if  he  allowed  them  to  sell 
their  lands.  Moreover,  as  we  shall  see,  the  public  position  of  the 
king  and  his  tenants  in  chief  to  some  extent  differentiated  them 
from  the  mesne  lords  and  their  tenants. 

We  must  now  turn  to  the  second  question — how  far  could  the 
mesne  lord  alienate  his  seignory  without  consulting  his  tenant  ? 
There  are,  as  Maitland  has  pointed  out,*  two  difficulties  involved 

^  R.P.  i  298  (8  Ed.  II.  no.  36) ;  for  later  cases  which  declared  void  all  attempts 
to  restrict  alienation  see  33  Ass.  pi.  11 ;  Y.BB.  14  Hy.  IV.  Mich.  pi.  6  (at  p.  3) ;  21 

IHy.  VI.  Hil.  pi.  21 ;  8  Hy.  VII.  Hil.  pi.  3  ;  13  Hy.  VII.  Pasch.  pi.  9  ;  in  the  last  cited 
case  Brian,  C.J.,  at  p.  23  interrupted  Keble,  who  was  trying  to  argue  that  a  tenant 
in  fee  simple  could  be  bound  by  condition  not  to  alienate,  and  said,  "  que  ils  ne 
vouloient  luy  ouir  a  arguer  a  cest  conceit,  pur  ceoque  il  est  merement  incontre 
f  nostre  comon  erudition,  et  est  or  in  manner  un  principal ;  "  for  Littleton's  classical 
exposition  of  this  principle,  see  below  85. 

2  Real  Property  22.  ^  ibij  20,  21. 

*  P.  and  M.  i  328. 

VOL.   III.— 6 


82  THE  LAND  LAW 

in  the  alienation  by  the  lord  of  his  seignory.      (i)  There  is  the 
difficulty  in  giving  to  a  tenant,  who  has  contracted  to  serve  one 
lord,  another.     This,   it  will  be  observed,   is  a  precisely  similar 
difficulty  to  that  which  is  involved  in  allowing  a  tenant  to  sub- 
stitute another  for  himself.     It  is,  as  Maitland  calls  it,   "a  feudal 
difficulty ; "  and  if  it  had  stood  alone  probably  it  would  not  have 
been  allowed   to  stand    in  the  way  of  a  free  alienation  of  the 
seignory.     Mere  feudal  difficulties  were,  as  we  can  see  from  the 
converse  case,  apt  to  be  disregarded  by  royal  judges.^     But  (2) 
there  was  another  difficulty — a  legal  difficulty,  which  in  the  eyes 
of  those   same    royal  judges    was   naturally  treated  with    more 
respect.     How  could  a  lord,  who  was  not  seised  of  the  land  in 
demesne,  deliver  seisin  of  the  land  which  he  held  only  in  service?^ 
The  answer  was  that   he   could    not   do    so    unless   the   tenant 
attorned  to  the  new  lord,  i.e.  recognized  him  as  his  lord.     Perhaps 
he  might  at  one  time  have  refused  to  attorn ;  but  in  the  thirteenth 
century  a  writ  was  invented,  called  per  quce  servitia,  by  which  the 
tenant  could  be  compelled  to  attorn  when  the  seignory  was  con- 
veyed by  fine.^     It  is  true  that  a  tenant  who  had  done  homage 
to  his  lord    could  object   to  having  his  homage   transferred* — 
though  the  lord  could  not,  as  we  have  seen,  prevent  the  tenant 
from  abandoning  his  land,  and  so  freeing  himself  from  the  duties 
imposed  upon  him  by  the  ceremony  of  homage.^     ''A  lord,"  it 
was  truly  said,   ''cannot  so  lightly  get  rid  of  his   tenant  as   a 
tenant  can  of  his  lord.  "^     This  seeming  unfairness  to  the   lord 
may  be  due  to  the  fact  that  the  lord's  duties  were  regarded  as 
contractual  in  their  nature — as  a  sort  of  chose  in  action  which 
could  not  be  assigned  ;  '^  whereas  the  tenant's  duties  were  bound 
up  with  the  land,  and,  so   to  speak,   ran  with  it,  so  that  they 
were  assignable  with  the  land.^     However  this  may  be,  it  is  clear 
that  the  rule  preventing  a  transfer  of  the  tenant's  homage  placed 
no  serious  impediment  on  the  assignment  of  a  seignory.     On 
such  a  transfer  the  tenant's  services  could  always  be  transferred 
by  attornment  whether  the  tenant  consented  or  not ;  ^  and  when 

^  Above  78  ;  Madox,  Form.  no.  512  (a  deed  of  Hy.  II. 's  time)  in  which  a  tenant 
makes  an  exchange  with  his  lord,  and  confirms  the  lord's  grant  in  frankalmoin  of  the 
land  originally  belonging  to  him. 

2  Below  100. 

3  P.  and  M.  i  330 ;  Bracton's  Note  Book  cases  948  and  1622  ;  Y.B.  33-35  Ed.  I. 
(R.S.)  314.  It  seems  that  the  recognition  could  take  the  form  either  of  the  oath  of 
fealty  or  payment  of  rent,  Y.B.  3,  4  Ed.  II.  (S.S.)  17,  157. 

^Bracton  ff.  8ib,  82.  ^  Above  79-80. 

6  Y.B.  3  Ed.  II.  (S.S.)  171. 

'  Bracton,  f.  78b,  defines  homage  in  the  terms  of  the  Roman  definition  of  obligatio ; 
as  to  the  non-assignability  of  choses  in  action  at  this  period  see  below  92 ;  Bk. 
iv  Pt.  II.  c.  2  §  3. 

**  Y.B.  14  Hy.  IV.  Mich.  pi.  6  (p.  4)  "  un  chose  que  passa  ove  la  terre." 

*  Bracton  f.  82,  "  Homagium  dividi  nee  attornari  non  potuit  contra  voluntatem 
tenentis,  licet  servitium  dividi  posset   et  attornari,   et  sic  videtur   quod  servitium 


FEUDAL  RESTRICTIONS  83 

the  ceremony  of  homage  ceased  to  be  performed  the  limitation 
itself  became  obsolete. 

{b)  The  tenant  in  chief  and  the  king. 

Magna  Carta,  as  we  have  seen,  drew  no  distinction  between 
the  capacity  of  the  mesne  tenant  and  the  tenant  in  chief  to 
alienate  their  lands.  ^  But  between  12 17  and  the  end  of  Edward 
I.'s  reign  a  wide  distinction  in  respect  of  freedom  of  alienation 
was  drawn  between  them.  In  1256^  the  king  issued  an  ordinance 
which  forbade  all  tenants  in  chief  to  alienate  without  his  licence, 
and  ordered  the  sheriff  to  seize  all  lands  so  alienated.  The 
reason  assigned  for  the  ordinance  was  that  by  reason  of  such 
alienations  the  king  lost  his  incidents  of  tenure,  and  that  his 
tenants  were  so  impoverished  that  they  could  not  perform  their 
due  services.  Britton,^  Fleta,*  the  so-called  statute  Praerogativa 
Regis, ^  the  Quo  Warranto  enquiries,^  the  articles  of  the  Eyre  '^ 
and  the  Year  Books,^  all  assume  that  this  is  the  law.  These 
authorities  all  make  it  clear  that  land  held  by  serjeanty  (which, 
as  we  have  seen,  was  always  held  directly  of  the  crown  ^)  could 
not  be  alienated  at  all.^^  Land  held  in  chief  by  knight  service, 
and  probably  all  land  so  held  by  any  free  tenure,  either  could  not 
be  alienated  at  all,  or  could  not  be  alienated  so  that  the  tenant 
was  disabled  from  performing  his  due  services.  In  the  fourteenth 
century  the  traditional  view  held  in  the  law  courts  was  that  this 
difference  between  the  position  of  the  tenant  in  chief  and  other 
tenants  arose  in  Henry  1 1  I.'s  reign.  ^^  Having  regard  to  the 
ordinance  of  1256,  this  view  was  probably  substantially  correct. 
There  was  certainly  more  truth  in  it  than  in  the  view  held  by 
Parliament  that  the  king's  right  was  based  on  the  apocryphal 
statute  Praerogativa  Regis. ^^  However,  whatever  was  the  basis 
of  the  king's  right,  he  clearly  had  an  indefinite  right  at  the 
beginning  of  the  fourteenth  century  to  prevent   his   tenants  in 

attornari  poterit  in  omni  casu,  et  contra  voluntatem  tenentis  ipsius,  licet  homagium 
non  possit." 

1  Above  78. 

2  L.Q.R.  xii  299-301 ;  it  is  perhaps  this  ordinance  to  which  Hankford  referred, 
when  he  said,  Y.B.  14  Hy.  IV.  Mich.  pi.  6  (at  p.  4),  "  Jeo  die  expressement  que  en 
temps  de  roi  Henry  le  tenant  le  Roy  purra  avoir  aliener  auxy  frank  tenement  come  le 
tenant  d'ascun  auter  sans  ascun  fine." 

^i  222.  ^p.  178. 

^  As  to  this  document  see  vol.  i  473  n.  8. 

^  Vol.  i  662  articles  24.  '  Britton  i  71. 

8  Y.BB.  32,  33  Ed.  I.  (R.S.)  38 ;  33-35  Ed.  I.  (R.S.)  306. 

^  Above  50. 

^"  Praerogativa  Regis  cc.  6  and  7  only  mentions  land  held  by  serjeanty  and 
knight's  service ;  Y.B.  14  Ed.  III.  (R.S.)  144,  146. 

^lY.B.  15  Ed.  III.  (R.S.)  156-158;  20  Ass.  pi.  17;  26  Ass.  pi.  37;  29  Ass.  pi. 
ig ;  Y.B.  14  Hy.  IV.  Mich.  pi.  6. 

^'^R.P.  ii  265;  a  view  also  propounded  by  Willoughby,  J.,  in  Y.B.  20  Ed.  III. 
(R.S.)  ii  232. 


84  THE  LAND  LAW 

chief  from  freely  alienating  their  lands.  The  extent  of  the 
right  was  gradually  settled  by  statute.  It  was  enacted  in  1327 
that  lands  held  of  the  king  ut  de  honore  should  be  freely  alienable, 
and  that,  if  lands  held  of  the  king  ut  de  corona  were  alienated 
without  the  king's  licence,  he  would  not  hold  the  lands  forfeit, 
but  would  exact  only  a  reasonable  fine.^ 

One  reason  for  this  distinction  between  the  position  of  the 
tenant  in  chief  and  the  mesne  tenant  may  perhaps  be  found  in 
the  more  or  less  public  position  which  many  tenants  in  chief  held  ; 
and  in  this  connection  it  may  be  noted  that  the  Praerogativa 
Regis  mentions  the  case  of  tenants  by  knight  service  and  ser- 
jeanty,^  and  that  Britton  specially  mentions  earls,  barons, 
knights,  and  Serjeants.^  As  between  mesne  lord  and  mesne 
tenant  the  land  law  had  become  property  law  ;  but  this  was  not 
altogether  the  case  as  between  the  king  and  his  tenants  in  chief. 
The  king's  court  and  the  common  law  had  no  doubt  sapped  the 
political  strength  of  the  feudal  baron ;  but  that  court  was  itself 
organized  and  staffed  by  officials  whose  names  and  duties  recalled 
the  days  of  feudalism.  The  state  which  had  sapped  the  strength 
of  feudalism  was  still  organized  on  a  feudal  model.  This  naturally 
tended  to  emphasize  the  older  view  that  the  high  officials  of  the 
state  held  both  their  official  estates  and  their  offices  by  the  same 
tenure ;  and  that  the  king  was  therefore  entitled  to  exercise  some 
control  over  all  alienations  either  of  land  or  of  office.  A  rule 
applied  to  one  class  of  tenants  in  chief  was  easily  applied  to  all  ; 
and  thus  the  very  cause  which  promoted  the  free  alienation  of 
land  in  the  case  of  the  mesne  tenant,  may  have  hindered  it  in  the 
case  of  the  tenant  in  chief.  Moreover,  as  we  have  seen,  the  king, 
who  was  always  lord  and  never  tenant,  had  not  the  same  interest 
as  other  lords  in  allowing  freedom  of  alienation  on  the  terms 
settled  by  the  statute  Quia  Emptores.* 

But  such  a  rule,  when  applied  to  all  tenants  in  chief,  became 
more  and  more  inconvenient,  as,  owing  to  the  operation  of  the 
statute  Quia  Emptores,  more  and  more  land  came  to  be  held 
directly  of  the  crown.  The  law  as  settled  in  Edward  III.'s 
reign  gave  to  the  crown  one  more  feudal  incident — the  fine  for 

^  I  Edward  III.  st.  r  cc.  12  and  13 ;  cp.  33-35  Ed.  I.  (R.S.)  306 — perhaps  a 
case  of  land  held  ut  de  honore,  and  Hengham's  doubt  as  to  whether  the  tenant  could 
or  could  not  alienate  may  be  based  on  this.  In  Y.B.  20  Ed.  III.  (R.S.)  i  90  it  is 
stated  in  argument  that  then  no  tenant  in  chief  could  subinfeudate.  By  the  statute 
34  Edward  III.  c.  15  all  subinfeudations  made  by  tenants  in  chief  under  Henry  III. 
and  his  predecessors  were  confirmed ;  the  statute  of  1327  was  always  taken  to 
apply  to  tenure  by  serjeanty,  Cromwel's  Case  (1601)  2  Co.  Rep.  at  ff.  80b,  8ia. 

2  Above  83  n.  10. 

3  i  222,  "  Neither  can  earls,  barons,  knights,  or  Serjeants  who  hold  in  chief  of 
us,  so  dismember  our  fees  without  our  leave  as  that  we  may  not  lawfully  eject  the 
purchasers." 

^  Above  80. 


FEUDAL  RESTRICTIONS  85 

alienation ;  but  it  left  all  tenants  free  to  alienate  their  lands. 
Restraints  on  alienation  based  upon  feudal  principles  had  ceased 
to  exist.  We  shall  see,  when  we  come  to  trace  the  history  of  the 
estate  tail,  that  the  courts  were  astute  to  prevent  the  creation  of 
of  any  new  restraints  upon  this  freedom  of  alienation.^ 

The  result  of  these  developments  was  so  to  strengthen  the  bias 
in  favour  of  freedom  of  alienation  which  the  common  law  had 
always  possessed,  that  it  came  to  be  regarded  as  a  fixed  principle 
depending  upon  "  reason  "  or  public  policy.  This  feeling  comes 
out  very  clearly  in  many  of  the  Year  Books,^  and  was  stated  in  its 
final  form  by  Littleton.^  "If  a  feoffment  be  made  upon  this 
condition  that  the  feoffee  shall  not  alien  the  land  to  any,  this 
condition  is  void ;  because  when  a  man  is  enfeoffed  of  lands  and 
tenements  he  hath  power  to  alien  them  to  any  person  by  the 
law :  for  if  such  a  condition  should  be  good,  then  the  condition 
should  oust  him  of  all  the  power  which  the  law  gives  him,  which 
should  be  against  reason ;  and  therefore  such  a  condition  is  void." 
To  which  Coke  adds  that  such  a  restraint  would,  in  the  case  of  a 
chattel,  be  "  against  trade  and  traffic  and  bargaining  and  contract- 
ing between  man  and  man."*  Thus  it  is  clear  that  Bracton  and 
Littleton  and  Coke  all  regarded  these  restraints  upon  the  power 
of  a  tenant  in  fee  simple  to  alienate  freely  as  contrary  to  public 
policy ;  but  if  they  had  been  asked  to  give  concrete  reasons  for 
so  regarding  them,  they  would  all  have  assigned  somewhat  differ- 
ent causes.  Bracton  would  have  said  that  they  were  contrary 
to  the  conception  of  dominium,  and  would  also  have  emphasized 
the  importance  of  breaking  up  the  solidarity  of  the  feudal  group. 
Littleton  would  have  emphasized  the  importance  of  maintaining 
the  principle  of  freedom  of  alienation  because  it  was  a  principle 
of  the  common  law.  Coke  would  have  had  in  view  the  attempt 
of  the  landowners  to  create  perpetuities,^  and  he  emphasized,  as 
we  have  seen,  the  commercial  advantage  of  a  free  circulation  of 
property.  Though  the  reasons  assigned  by  these  three  lawyers 
would  have  been  different,  all  had  in  their  minds  the  impolicy  of 
a  general  restriction  on  the  power  of  the  tenant  in  fee  simple  to 
alienate. 

It  followed  from  this  that  both  a  condition  restraining  aliena- 
tion, not  generally,  but  to  a  particular  person,^  and  a  condition 
that  the  feoffee  shall  reconvey  to  the  feoffor,  and  that  if  he  does  not, 
the  feoffor  should  have  a  right  to  re-enter,"^  were  valid,  because 
such  conditions  did  not  impose  either  a  general  or  an  indefinite 

^  Below  117-120.  2  Above  8i  n.  i. 

^§  360;  see  Sweet,  Restraints  on  Alienation  L.Q.R.  xxxiii  242-243. 
"» Co.  Litt.  223a.  5  Bk.  iv  Pt.  II.  c.  i  §  6.  «  Litt.  §  361. 

'  These  conditions  were  very  common  at  this  period  as  they  generally  formed 
part  of  the  mediaeval  family  settlement,  below  250-251  ;  cp.  L.Q.R.  xxxiii  248-249. 


86  THE  LAND  LAW 

restraint  upon  the  freedom  of  alienation.  The  same  reasoning 
applied  also  to  a  restriction  upon  a  tenant  of  a  smaller  estate 
than  an  estate  in  fee  simple.  To  such  tenants  the  statute  of  Quia 
Emptores  had  no  application,  so  that  there  was  not  the  same 
opportunity  for  a  feeling  against  restraining  alienation  by  such  tenants 
to  grow  up.  But,  right  down  to  the  end  of  the  mediaeval  period, 
some  of  the  judges  were  inclined  to  disallow  such  restraints  even 
upon  these  tenants ;  ^  and  it  was  not  till  the  beginning  of  the 
seventeenth  century  that  it  was  finally  decided  to  allow,  in  favour 
of  a  reversioner,  the  imposition  of  a  restriction  upon  the  freedom 
of  alienation  of  a  tenant  for  life  or  years,^  but  to  refuse  to  allow 
such  a  restriction  to  be  imposed  upon  a  tenant  in  tail.^  In  later 
law: the  courts  have  allowed  other  forms  of  modified  restraint  upon 
freedom  of  alienation.  But  the  law  relating  to  them  has  been 
confused  by  a  failure  to  distinguish  between  restrictions  which  are 
invalid  because  they  impose  an  undue  restriction  on  freedom  of 
alienation,  and  limitations  which  fail  because  they  are  limited  to 
vest  at  too  remote  a  date — i.e.  because  they  infringe  the  rules 
against  perpetuities.^ 

Though  the  mediaeval  land  law  had  thus  evolved  rules  which 
protected  the  freedom  of  alienation  it  had  evolved  no  rules  against 
remoteness  of  limitation.  Such  rules  were  not  then  needed,  be- 
cause, as  we  shall  see,  landowners  had  very  limited  powers  of  creating 
future  estates  in  the  land.^  Therefore  the  danger  that  landowners 
would  use  their  powers  to  alienate  freely  to  destroy  freedom  of 
alienation  had  not  yet  arisen ;  and  it  was  not  till  it  arose  in  the 
latter  half  of  the  sixteenth  century  that  rules  against  perpetuities 
became  necessary.  But  we  shall  now  see  that  an  analogous 
danger  had  arisen  during  this  period  owing  to  the  desire  of 
landowners  to  make  gifts  to  religious  houses ;  but  that  this 
danger  had  been  adequately  met,  even  before  it  was  completely 
realized,  by  the  legislation  which  prohibited  such  gifts. 

(ii)  Restraints  upon  alienation  to  religious  houses. 

1  have  already  said  something  of  the  loss  of  all  the  incidents  of 
tenure  which  necessarily  followed  a  gift  to  a  religious  house — a  gift 

iSee  Y.BB.  21  Hy.  VI.  Hil.  pi.  21;  8  Hy.  VII.  Hil.  pi.  3;  13  Hy.  VII.  Pasch. 
pi.  91,  where  Fineux,  C.J.,  at  p.  23,  and  Townshend  and  Vavisor,  J.J.,  at  p.  24  were 
in  favour  of  the  restriction,  and  Brian,  C.  J.,  at  p.  23  was  against  it ;  Bk.  iv.  Pt.  II.  c.  i 

§7. 

2  Bk.  iv  Pt.  II.  c.  I  §  7 ;  L.Q.R.  xxxiii  243. 

3  Mildmay's  Case  (1606)  6  Co.  Rep.  at  f.  43a ;  though  he  might  be  restrained 
from  alienation  by  feoffment  or  fine  because  these  conveyances  had  a  tortious  operation, 
Y.BB.  cited  below  119  n.  9  ;  L.Q.R.  xxxiii  244. 

^Gray,  Perpetuities  (2nd  ed.)  Introd. ;  L.Q.R.  xxxiii  236-237;  on  restraints 
against  alienation  see  Gray's  book  on  this  subject,  and  Mr.  Sweet's  two  articles, 
L.Q.R.  xxxiii  236,  342 ;  on  the  history  of  the  rules  against  perpetuities  see  Bk.  iv  Pt, 
II.  c.  I  §  6. 

''Below  134-136. 


i 


ALIENATION  IN  MORTMAIN  87 

in  mortmain.^  The  clause  of  Magna  Carta  was  enforced  by  the 
Provisions  of  Westminster  ^  in  1259.  This  clause  of  the  Provisions 
of  Westminster  was  not  re-enacted  in  1267;  but  in  1279^  the 
statute  De  Viris  Religiosis — the  first  Statute  of  Mortmain — put 
a  stop  to  all  sales  or  gifts  of  land  to  religious  houses  without 
the  king's  licence ;  ^  and  this  prohibition  was  extended  to  all 
corporate  bodies  in  Richard  II.'s  reign. ^  Though  modern  statutes 
have  created  some  exceptions  to  the  general  law,*'  the  prohibition 
has  been  maintained  from  the  thirteenth  century  to  the  present 
day.  It  is  true  that  the  reasons  for  the  law  are  no  longer  the 
same.  The  incidents  of  tenure  are  things  of  the  past.  The  law 
is  now  maintained  because  to  give  land  to  a  corporation  is 
to  render  it  wholly,  or  almost  wholly  inalienable.  Though  a 
restriction  on  the  freedom  of  alienation,  it  is  a  restriction  in  name 
only ;  for,  like  the  modern  rule  against  perpetuities,  it  is  maintained 
in  order  to  promote  the  freedom  of  alienation. 

The  history  of  the  elimination  of  the  older  restraints  upon 
alienation  points  to  the  same  conclusion  as  the  history  of  the  free 
H  tenures  and  their  incidents — the  land  law  is  fast  becoming  a  branch 
^L^of  the  private  law  of  property.  Thus  we  find  that  legal  interest 
^Bin  the  land  law  tends  to  centre  rather  upon  the  nature  of  the  estates 
^Rwhich  persons  may  have  in  the  land  than  upon  the  tenures  by 
^B which  it  is  held.  Littleton's  book  is  a  treatise  upon  tenures;  but 
K  he  deals  first,  as  we  have  seen,  with  estates.  I  must  now  say 
HL  something  of  some  of  these  estates  ;  but  before  describing  them  I 
^■•must  first  say  something  of  the  doctrine  of  seisin,  upon  which 
^Kdepends  not  only  much  of  the  learning  as  to  estates,  but  also  the 
^»  learning  as  to  many  other  branches  of  the  land  law. 

1  Vol.  ii  348-349. 

^c.  14,  •'  Viris  autem  religiosis  non  liceat  ingredi  foedum  alicujus  sine  licentia 
capitalis  domini,  de  quo  scilicet  res  ipsa  immediate  tenetur." 

3  7  Edward  I. ;  vol.  ii  348  ;  attempted  evasions  of  the  statute  were  always  met 
by  fresh  statutes,  13  Edward  I.  st.  i  c.  32  (collusive  recoveries),  34  Edward  I.  st.  3 ; 
15  Richard  II.  c.  5  (preventing  conveyances  in  mortmain  by  way  of  use).  In  the 
statute  Quia  Emptores  it  is  stated  that  nothing  in  the  Act  is  to  enable  gifts  to  be 
made  in  mortmain.  With  respect  to  leases  for  years  the  courts  seem  to  have  held 
that  a  lease,  e.g.  for  80  years,  which  was  obviously  likely  to  exceed  the  duration  of 
a  life  estate,  was  hit  by  the  statutes,  Y.B.  4  Hy.  VI.  Hil.  pi.  i ;  but  that  a  lease  for 
20  or  40  years  might  be  good,  Y.B.  3  Ed.  IV.  Mich.  pi.  8  (p.  13)  per  Nele  arg. ;  and 
this  view  seems  to  have  been  approved,  see  Cotton's  Case  (1613)  Godbolt  at  p.  192 ; 
Heming  v.  Brabason  (1660)  O.  Bridg.  at  p.  7;  Jesus  College  v.  Gibbs  (1835)  i  Y.  and 
C.  (Ex.)  at  p.  147;  but  it  is  doubtful  whether  this  distinction  is  now  applicable  in 
viewof  the  definition  of  "assurance"  in  the  Mortmain  Act  of  1888,  51,  52  Victoria  c.  42 
§  10  (i)  (ii) ;  see  Halsbury,  Laws  of  England  viii  367  n.  (^),  where  all  the  authorities 
are  collected. 

4  See  Y.BB.  30,  31  Ed.  I.  (R.S.)  535-536;  32,  33  Ed.  I.  (R.S.)  499  (a  licence  in 
mortmain) ;  i,  2  Ed.  II.  (S.S.)  14  (an  enquiry  as  to  a  collusive  evasion  of  the  statutes) ; 
14  Ed.  III.  (R.S.)  1  ii  1  iii  (an  apparently  successful  evasion  by  means  of  collusive 
litigation). 

^  15  Richard  II.  c.  5.  ^51,  52  Victoria  c.  42, 


88  THE  LAND  LAW 

§  5.  Seisin 

Seisin  means  possession.  It  is  derived  from  the  same  root  as 
the  Roman  possessio  and  the  German  besitz.  "  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."  ^  If  we  except 
those  parts  of  the  land  law  which  deal  exclusively  with  the  nature 
of  the  free  tenures  and  the  definition  of  their  incidents,  it  would 
be  true  to  say  that  this  branch  of  the  law  is  dominated  by  the 
conception  of  seisin.  The  meaning  and  consequences  of  seisin 
constitute  the  background  of  principle  which  gives  colour  and 
unity  to  its  various  rules.  We  have  seen  that  it  was  just  about 
the  time  when  Littleton  was  writing  his  Tenures  that  the  term 
"  seisin  "  was  appropriated  to  describe  the  possession  of  freehold 
estates  in  land,  while  the  term  "  possession "  was  appropriated  to 
chattels.^  This  separation  shows  that  the  seisin  of  freehold  estates 
in  land,  which  was  protected  by  the  real  actions,  had  come  to 
differ  from  the  possession  of  chattels,  protected  only  by  personal 
actions.  I  have  said  also  something  as  to  the  meaning  and  conse- 
quences of  seisin  at  different  periods  in  the  history  of  the  law.^ 
Here  I  shall  attempt  to  sum  up  the  history  of  the  development  of 
the  doctrine,  and  to  estimate  the  position  which  it  held  in  the  law 
at  the  end  of  this  period.  But  before  I  endeavour  to  explain  the 
mediaeval  doctrine  upon  this  matter  it  may  conduce  to  clearness 
if  I  recall  what  may  be  called  the  modern — the  "  general  juris- 
prudence " — point  of  view. 

Ownership  and  possession  are  sufficiently  familiar  topics  in 
mature  systems  of  law.  Such  systems  of  law  regard  ownership  as 
the  relation  of  a  person  to  a  thing  which  gives  to  the  person 
indefinite  rights  enforceable  at  law  to  or  over  the  thing.  When 
considering  a  question  of  ownership  we  attend  not  so  much  to  the 
physical  relation  between  the  person  and  the  thing,  as  to  the 
question  whether  the  relation  between  them  has  been  so  constituted 
that  the  law  will  annex  to  it  these  indefinite  rights  ;  for  ownership 
is  pre-eminently  a  right.  Possession,  on  the  other  hand,  expresses 
the  physical  relation  of  control  exercised  by  a  person  over  a  thing. 
The  possessor  may  or  may  not  be  owner,  according  to  whether  or 
not  this  physical  relation  of  control  has  been  constituted  under 
conditions  to  which  the  law  annexes  the  rights  of  ownership.  If 
in  all  cases  where  such  physical  control  existed  the  law  annexed 
the  right  of  ownership,  the  law  relating  to  possession  would  merge 
in  the  law  relating  to  ownership.  But  this  is  not  the  case.  For 
many  causes  arising  both  ex  contractu  and  ex  delicto  the  owner 

^  P.  and  M.  ii  29,  30.  '^  Vol.  ii  581  and  n.  2, 

3 Ibid  205,  262,  353-355.  S^i,  582-588. 


SEISIN  89 

of  property  is  not  the  possessor.  The  relationships  between 
persons  and  things  grow  more  complex  with  the  growing  com- 
plexity of  social  relations ;  ^  and  the  law  must  define  the  many 
kinds  of  subordinate  control  excercised  by  persons  over  things 
which  co-exist  together  with  or  in  opposition  to  the  principal 
control  which  it  calls  ownership.  Thus  we  get  a  law  of  possession 
which,  both  in  Roman  and  in  English  law,  covers  many  species 
of  subordinate  control,  and  exists  side  by  side  with  a  law  of 
ownership. 

This  general  theory  is,  of  course,  a  generalization  from  the 
rules  of  mature  systems  of  law.  Primitive  systems  of  law  have 
no  such  abstract  conceptions  as  those  of  ownership  and  possession. 
They  are  concerned  rather  with  the  invention  and  maintenance  of 
rules  for  the  settlement  of  disputes.^  Here  I  must  trace  the 
history  of  the  process  by  which  the  common  law  attained  a 
theoiy  about  the  ownership  and  possession  of  land.  The  history 
of  that  process  is,  in  relation  to  the  land  law,  the  history  of  the 
development  of  the  doctrine  of  seisin. 

We  have  seen  that  the  common  law  has  not,  and  never  has 
had,  any  theory  of  ownership  like  that  of  the  Roman  law.  It  had 
no  action  like  the  Roman  vindication  which  protected  an  abstract 
right  of  dominium.  The  writ  of  right  simply  decided  the  question 
of  better  right  to  possession  as  between  the  demandant  and  the 
tenant.  In  other  words,  it  was  a  form  of  action  directed,  not  to 
establish  the  abstract  right  of  the  demandant,  but  to  settle  a  dispute 
between  two  litigants.^  No  doubt  when  Henry  II.'s  reform 
allowed  the  question  of  better  right  to  be  tried  by  the  grand  assize* 
instead  of  by  battle,  more  consideration  could  be  given  to  the  title 
of  the  parties.  It  is  true  that  Bracton,  using  Roman  terms,  talks 
of  the  action  as  establishing  t\\Q proprietas  of  the  successful  party.^ 
But  that  the  majusjus  established  by  the  writ  of  right  was  not  the 
proprietas  of  Roman  law  we  may  see  by  asking  what  the  demandant 
must  plead  and  prove  in  order  to  substantiate  his  claim,  and  what 
the  tenant  can  plead  in  order  to  substantiate  his  defence.  The 
demandant  must  plead  and  prove  that  he  or  his  ancestors  had  a 
better  right  to  the  possession  than  the  tenant  or  his  ancestors  at 
some  period  within  the  existing  statutes  of  limitation.^  This  he 
will  do  by  showing  that  he  has  been  in  possession  or  has  done 
such  acts — e.g.  collected  the  rents  from  tenants  or  made  livery  of 
seisin — as  only  a  possessor  could  do.      The  tenant  must  deny  the 

1  See  the  passage  from  Bentham  cited  Pollock  and  Wright,  Possession  6-10. 

2  Vol.  ii  78-79.  3  Above  7.  *  Vol.  i  328. 

^f.  434b,  "  Est  etiam  jus  proprietatis  quod  dicitur  jus  merum."  It  is  probable 
that  this  "j/zs  merum  "  is  a  mistaken  translation  of  the  Anglo-French  mere  dreit,  i.e. 
majcur  droit,  P.  and  M.  ii  77 ;  cp.  Bracton's  Note  Book  case  240. 

« Above  7,  8  ;  L.Q.R.  ii  484. 


90  THE  LAND  LAW 

demandant's  claim  and  prove  any  facts  he  alleges  to  show  that  he 
has  the  better  right  to  possession.  But  he  cannot  say  to  the 
demandant,  ''  You  have  not  proved  your  case  because  X,  a  third 
person,  through  whom  neither  of  us  claims,  has  a  better  right  than 
either  of  us,  and  this  I  am  prepared  to  prove."  ^  Seeing  that  the 
demandant  need  only  prove  a  better  right  to  possession  and  not 
an  absolute  dominium^  the  tenant  cannot  rely  upon  a  jus  tertii 
through  which  he  does  not  claim.^  The  question  at  issue  is  the 
better  right  of  the  parties  to  possession ;  and  if  this  be  the  issue 
such  a  jus  tertii  is  merely  irrelevant.^  This,  it  would  seem,  is  a 
principle  which  is  common  to  many  bodies  of  Germanic  law.^ 

Even  the  writ  of  right,  therefore,  did  not  decide  the  abstract 
question  of  ownership.  Still  less  was  such  a  question  at  issue  in 
the  newer  forms  of  action — the  assizes  and  the  writs  of  entry — 
which,  as  we  have  seen,  superseded  the  writ  of  right.  ^  The 
question  at  issue  in  these  forms  of  action  was  simply  the  question 
of  seisin.  "  Did  A  disseise  B  ?  "  "  Did  A  enter  on  the  land 
through  {per)  X,  which  X  disseised  B  ?  "  An  answer  is  required 
to  a  question  of  fact.  No  question  of  law  is  directly  suggested  ; 
though,  as  we  have  seen,  many  such  questions  might  incidentally 
arise.  No  doubt  in  describing  the  nature  and  incidents  of  seisin, 
and  the  modes  in  which  it  could  arise  and  terminate,  Bracton 
borrowed  much  substantive  law  from  Rome.*^  No  doubt  he  was 
almost  bound  to  do  so,  because  the  novel  disseisin  (the  most 
summary  of  the  actions  which  protected  seisin,  because  it  excluded 
all  questions  as  to  the  right  to  seisin)  was  borrowed  from  Roman 
sources.  No  doubt  he  often  talks  as  if  the  right  to  seisin  protected 
by  the  writ  of  right  could  be  compared  with  the  dominium 
protected  by  a  vindication  just  as  truly  as  the  seisin  protected  by 

^  But  in  Y.B.  6  Ed.  II.  (S.S.)  244-245  a  third  person,  not  a  party  to  the  plea,  was 
allowed  to  intervene  to  prove  that  he  was  the  person  really  entitled ;  this,  however,  is  a 
very  different  matter  to  allowing  one  of  the  parties  to  invoke  in  his  defence  the  right 
of  an  absent  third  person. 

2  P.  and  M.  ii  75,  76 ;  the  principle  may  also  be  illustrated  from  the  pleadings 
in  cases  of  inheritance,  see  below  180-181.  Note  that  the  rules  as  to  the  conditions 
under  which  the  ju^  tertii  may  be  pleaded  as  a  defence  by  the  tenant  in  possession 
were  different  in  the  later  action  of  ejectment,  and  therefore  in  modern  law,  Bk.  iv 
Pt.  II.  c.  I  §  2. 

3  This  principle  is  illustrated  by  Y.B.  20  Ed.  III.  (R.S.)  ii  248-252;  in  that  case 
a  gift  was  made  to  E.  and  the  heirs  of  her  body  by  W. ;  a  writ  of  formedon  in  the 
descender  was  brought  by  J.,  and  it  was  said  in  the  writ  that  the  land  ought  to  descend 
to  J.  "  post  mortem  praedictorum  W.  et  E. ;  "  the  writ  was  abated  because,  the  gift 
being  to  E.,  there  was  no  need  to  recite  the  death  of  W.  in  the  writ ;  to  the  argument 
that  it  was  necessary  to  recite  it  because  he  might  have  been  entitled  to  an  estate  by 
the  curtesy,  Willoughby,  J.,  said,  "  Although  you  would  not  have  an  action  against  him 
(W,),  or  against  anyone  who  had  his  estate,  at  any  rate  your  action  would  be 
maintainable  against  a  stranger  who  could  not  claim  anything  of  his  estate." 

*Schulte,  Droit  de  L'Allemagne  (Tr.  Fournier)  448-453,  467-468,  and  the 
authorities  there  cited. 

''Above  8-14,  ^Vol.  ii  282, 


J 


SEISIN  91 

the  novel  disseisin  could  be  compared  with  \hQ  possessio  protected 
by  the  interdicts.  But  the  position  in  English  law  of  the  seisin 
protected  by  the  novel  disseisin  or  the  writs  of  entry  differs  from 
the  position  of  the  ^omdi\-\  possessio  because  the  English  law  knows 
no  dominium  with  which  it  can  be  compared.  English  law  only 
knows  various  rights  to  seisin,  some  more  recent,  some  less  recent, 
which  can  be  asserted  by  different  forms  of  action.^  In  Roman 
law  dominium,  and  possessio  can  be  and  are  sharply  contrasted. 
In  English  law  we  can  only  compare  seisin  with  seisin,  the  seisin 
protected  by  the  writ  of  right  with  that  protected  by  the  writ  of 
entry,  the  seisin  protected  by  the  writ  of  entry  with  that  protected 
by  the  novel  disseisin — the  older,  in  short,  with  the  more  recent. 
English  law  protects  seisin  and  various  rights  to  seisin  of  varying 
dates  by  different  forms  of  action.^ 

It  is  seisin  therefore,  or  the  right  thereto,  which  the  law 
protects ;  and  the  law  follows  out  rigidly  the  consequences  of 
this  conception,  (i)  The  person  seised  is  the  person  who  can 
exercise  all  the  rights  of  an  owner.  (2)  The  person  not  seised 
may  have  a  right  of  entry  or  action  ;  but  till  he  has  entered  or 
recovered  seisin  by  action  he  has  none  of  the  rights  of  an  owner. 
Let  us  look  at  the  results  which  flow  from  these  two  principles.^ 
(i)  The  person  seised  may  make  a  feoffment  and  convey  an 
estate  in  fee  simple — a  tortious  estate,  it  may  be,  but  still  an 
estate  in  fee  simple.*  "  The  disseisor  claimeth  fee  and  right  and 
freehold  till  his  tort  be  proven."  '^  "  Every  tenant  by  disseisin 
has  a  fee  until  his  estate  be  defeated."  ^  **  A  feoffment  de  facto 
made  by  them  that  have  such  interest  or  possession  [as  a  lessee 
for  years  or  a  tenant  by  elegit]  is  good  between  the  parties  and 
against  all  men,  but   (i.e.  except)  only  against  him  that  hath  a 

1  Bracton  ff.  434b,  435,  is  discussing  the  case  where,  after  the  death  of  an 
ancestor,  a  younger  son  gets  seisin,  dies  seised,  and  transmits  the  land  to  his  heirs ; 
in  that  case,  '*  transmittit  ad  hasredes  suos  cum  jure  possessionis  quod  ipse  habuit 
quasi  in  foedo  quoddam  jus  proprietatis  cum  jure  possessionis  ipsius,  quod  sequi 
debeat  primam  proprietatem,  et  sic  de  haerede  in  hasredem  usque  in  infinitum,  et  sic 
erunt  ibi  duo  jura  proprietatis  per  diversum  descensum  et  diversas  personas  et 
gradus.  Sed  unus  eorum  majus  jus  proprietatis  habebit  propter  prioritatem,  sicut 
frater  antenatus  et  ipsius  haeredes,  et  illi  minus  jus  qui  descendunt  de  fratre 
postnato  .  .  .  plura  possunt  esse  jura  proprietatis,  et  plures  possunt  habere  majus  jus 
aUis." 

2Y.B.  14,  15  Ed.  III.  (R.S.)  218,  "Every  one  who  is  named  in  the  writ  of 
assize  can  deny  the //aiwfi^'s  title,  that  is  to  say,  the  seisin;  "  Lightwood,  Possession 
of  Land  150,  truly  says  that  in  English  law  "  there  is  no  marked  distinction  between 
ownership  and  seisin.  Seisin  is  the  source  of  a  right  of  property  which  is  always 
valid  as  against  persons  with  an  inferior  right.  It  may  be  defeasible  because  some 
one  else  has  a  better  right,  but  as  against  a  stranger  at  any  rate  it  is  good." 

2  See  Maitland's  article  on  "  The  Mystery  of  Seisin,"  L.Q.R.  ii  481  seqq. ;  and 
cp.  H.L.R.  iii  25-28. 

^Bracton  f.  11;  Litt.  §  611;  ChalHs,  Real  Property  (2nd  ed.)  371;  Williams, 
Seisin  7. 

5  Y.B.  6,  7  Ed.  II.  (S.S.)  89  per  Scrope,  J. 
« Y.B.  II,  12  Ed.  III.  (R.S)  202. 


92  THE  LAND  LAW 

right."  ^  This  principle  was  followed  out  logically.  The  heir  of 
the  person  seised  will  succeed  to  his  property  ;  ^  and  it  is  only  a 
person  seised  who  can  be  a  stock  of  descent.^  His  widow  is 
entitled  to  dower.*  The  husband  of  a  woman  seised  as  of  wrong 
is  entitled  to  curtesy.^  Rights  appendant  to  the  estate  belong 
to  the  disseisor.^  The  fact  that  there  is  a  person  seised  of  the 
land  will  prevent  that  land  escheating  to  the  lord,  even  though 
the  disseisee  —  the  person  entitled — has  died  without  heirs.''' 
Similarly,  it  seems  that  all  the  ordinary  incidents  of  tenure  affect 
the  tenant  seised  as  of  wrong  just  as  if  he  had  been  the  rightful 
tenant.^  (2)  The  position  of  the  person  disseised  is  the  exact 
converse  of  this.  He  has  nothing  which  he  can  alienate.  To 
alienate  effectually  he  must  make  livery  of  seisin.^  Not  having 
seisin,  he  has  only  a  right  of  entry  or  action — a  chose  in  action, 
which,  till  1845,  was  inalienable.^*^  At  common  law,  said  Mount- 
ague,  C.J.,  in  1553,  "he  who  was  out  of  possession  might  not 
bargain,  grant  or  let  his  right  or  title,  and  if  he  had  done  it,  it 
should  have  been  void."  ^^  His  right  of  action  may,  it  is  true, 
descend  to  his  heir ;  but  the  time  will  come  when,  owing  to  the 
operation  of  statutes  of  limitation,  even  that  right  of  action  will 
be  lost.  His  wife  is  not  entitled  to  dower.  He,  if  married  to  a 
woman  disseised,  is  not  entitled  to  curtesy.  Of  a  mere  right  of 
action,  and  in  the  Middle  Ages  of  a  right  of  entry,  there  could 
be  no  escheat ;  nor  did  such  rights  render  those  entitled  thereto 
liable  to  any  of  the  other  incidents  of  tenure. ^^ 

Now  we  have  seen  that  at  the  end  of  this  period  the  rights  of 
the  disseised  tenant  as  against  the  disseisor  were  so  far  extended 
that  he  had  in  most  cases  a  right  of  entry  ;  ^^  and  that  his  rights 

1  Co.  Litt.  367a. 

2  Bracton  f.  435  ;  15  Ed.  III.  (R.S.)  330  ;  cp.  5  Ed.  II.  (S.S.)  {1311-1312)  204-207. 
3Y.B.  20  Ed.  III.  (R.S.)  ii  12-16;  below  172. 

*Y.B.  13,  14  Ed.  III.  (R.S.)  314.  316;  cp.  Y.B.  5  Ed.  II.  (S.S.)  (1312)  ijj per 
Spigurnel,  J. 

5L.Q.R.  ii  488;  cp.  Litt.  §§  393,  394. 

«Y.B.  14  Ed.  III.  (R.S.)  24;  but  see  Y.B.  8  Ed.  II.  (S.S.)  196-197  where  a 
doubt  is  expressed  as  to  an  advowson  appendant. 

'  L.Q.R.  ii  486,  487  and  references  there  cited,  especially  Y.B.  6  Hy.  VII. 
Mich.  pi.  4  (p.  9)  per  Brian ;  for  the  later  modification  of  the  law  on  this  point  see 
Bk.  iv  Pt.  II.  c.  I  §  2. 

8  L.Q.R.  ii  487,  488  ;  Y.B.  17,  18  Ed.  III.  (R.S.)  324.  »  Below  221-222,  224. 

1°  Up  till  8,  9  Victoria  c.  106  §  6  ;  see  Ames,  H.L.R.  iii  337,  "  The  rule  that  a 
chose  in  action  is  not  assignable  was  a  rule  of  the  widest  application.  A  creditor 
could  not  assign  his  debt.  A  reversioner  could  not  convey  his  reversion,  nor  a  re- 
mainderman his  remainder.  A  bailor  was  unable  to  transfer  his  interest  in  a  chattel. 
And  .  .  .  the  disseisee  of  land  or  chattels  could  not  invest  another  with  his  right  to 
recover  the  res  or  its  value  ;  "  cp.  Y.B.  3,  4  Ed.  II.  (S.S.)  9  where  to  a  writ  of  for- 
feiture of  marriage  it  was  pleaded  that  the  plaintiff  was  never  seised  of  the  ward. 

11  Partridge  v.  Strange  (1553)  Plowden  at  p.  88. 

^2  Rushden's  Case  (1533)  Dyer  at  f.  5a  ;  L.Q.R.  ii  485-488  ;  for  later  modifications 
of  these  rules  see  Bk.  iv  Pt.  II.  c.  i  §  2. 

i3Vol.ii  583-585. 


i 


SEISIN  93 

of  action  were  similarly  extended  by  the  omission  to  pass  any 
effective  statutes  of  limitation.^  We  have  seen  that  such  cases 
as  the  cases  of  descents  which  tolled  entries,  or  discontinuances, 
where  the  true  owner's  right  of  entry  could  not  be  asserted 
against  the  person  wrongfully  seised,  had  come  to  be  anomalous.^ 
This  meant,  not  that  mere  ownership  in  the  abstract  was  better 
protected,  but  that  fuller  opportunity  was  given  to  the  better 
right  to  recover  seisin.  The  disseised  owner  was  not  allowed  to 
dispose  of  his  rights.  This  would  have  offered  direct  encourage- 
ment to  that  maintenance  and  champerty  which  Parliament  and 
the  judges  of  the  fifteenth  century  made  such  determined  and 
such  ineffectual  efforts  to  suppress.^  The  way  was  made  easier 
for  him  to  recover  his  rights  by  entry  or  action.  But  till  he  had  re- 
covered them  he  had  only  a  right  of  entry  or  action.  The  disseisor 
had  the  seisin.  Seisin  may  be  defeasible.  It  may  be  made 
easier  by  an  improvement  in  legal  remedies  to  defeat  it.  But 
this  does  not  curtail  the  rights  of  the  person  seised  while  he  is 
seised.  All  through  this  period  and  long  afterwards  the  person 
seised  continued  to  enjoy,  the  person  disseised  was  deprived  of 
most  of  the  fruits  and  consequences  of  property.  It  is  not  till  a 
much  later  date  that  owners  while  still  disseised  have  been  able 
to  dispose  of  their  rights,  or  that  disseisors  while  seised  have 
ceased  to  be  able  to  convey  a  tortious  estate  in  fee  simple  by 
feoffment;*  and  in  spite  of  modern  changes  much  of  the  old 
principle  still  remains.^  Seisin  is  still  prima  facie  evidence  of 
ownership.  The  best  right  to  seisin  is  still  the  only  form  of 
ownership  recognized  by  English  law.  "The  standing  proof 
that  English  law  regards,  and  has  always  regarded,  possession  as 
a  substantive  root  of  title,  is  the  standing  usage  of  English  lawyers 
and  landowners.  With  very  few  exceptions  there  is  only  one 
way  in  which  an  apparent  owner  of  English  land  who  is  minded 
to  deal  with  it  can  show  his  right  so  to  do ;  and  that  way  is  to 
show  that  he  and  those  through  whom  he  claims  have  possessed 
the  land  for  a  time  sufficient  to  exclude  any  reasonable  probability 
of  a  superior  adverse  claim."  ^     The  earliest  statute  of  limitation  "^ 

1  Above  8,  10.  ^  Vol.  ii  585-586. 

2  Ibid  416,  452.  '*8,  9  Victoria  c.  106. 
^Lightwood,  Possession  of  Laxid  151,  sums  up  the  historical  development  very 

well ;  as  he  says,  the  possessor  was  at  first  protected  even  against  the  owner,  but  the 
law  "  more  and  more  diminished  this  protection,  and  more  and  more  admitted 
matters  of  title  in  possessory  actions  until  at  length  it  was  only  the  freeholder  taking 
by  descent  who  was  protected  as  against  the  true  owner,  and  it  was  only  therefore  a 
descent  cast  which  checked  the  pleaders  on  either  side  in  carrying  back  their  tale  of 
wrongs  to  the  respective  rights  of  possession  ;  "  this  exception  was  done  away  with 
in  1833 ;  and  since  that  date  *'  seisin  was  still  the  source  of  a  title  good  against 
strangers,  but  it  was  no  longer  protected  against  the  true  owner ;  "  cp.  Perry  v. 
Clissold  [1907]  A.C.  at  pp.  79,  80. 

^  Pollock  and  Wright,  Possession  94,  95.  "^  32  Henry  VIII.  c.  2. 


94  THE  LAND  LAW 

did  not  confer  ownership  upon  the  person  seised.  In  so  far  as  it 
applied  to  corporeal  hereditaments,^  it  simply  barred  the  action 
of  the  person  who  might  otherwise  have  had  a  better  right  to 
seisin.  Even  our  present  statutes  content  themselves  with  barring 
the  action  and  extinguishing  the  right  of  the  person  who  would 
otherwise  have  a  better  right  to  get  seisin.  They  do  not  confer  a 
title  upon  the  person  seised.  A  system  of  usucapio  which  by 
lapse  of  time  turns  possessio  into  dominium  would  be  unnecessary 
and  indeed  unintelligible.  All  the  law  need  do  when  it  wishes  to 
secure  the  rights  of  those  seised  against  those  who  have  a  better 
right  to  seisin  is  to  bar  that  better  right.  If  they  are  seised, 
and  if  the  titles  of  those  with  a  better  right  to  seisin  are 
barred,  they  have  the  best  of  titles  which  the  law  can  give  ;  ^ 
and  the  fact  that  this  is  the  principle  underlying  these  statutes 
of  limitation — a  truth  long  since  understood  by  the  few  students 
who  had  cared  to  study  the  history  of  the  law — has  recently 
been  stated  by  the  Court  of  Appeal.^ 

This  conception  is  followed  out  to  its  logical  consequences. 
When  the  original  owner's  right  of  action  and  title  are  extinguished 
by  the  operation  of  the  statute  of  limitation,  the  title  of  the 
person  in  whose  favour  the  statute  was  running  is  rendered  in- 
defeasible. It  follows  that,  even  though  he  is  not  in  possession 
at  the  moment  when  the  original  owner's  right  and  title  is  barred, 
he  gets  an  indefeasible  title.  If  he  has  been  disseised  and  the 
disseisor  is  in  possession,  he  can  recover  possession  from  him,  if 
he  brings  his  action  in  time.  If  he  has  settled  the  property  by 
deed  or  will  on  X  for  life  remainder  in  fee  simple  to  Y,  both  X 
and  Y's  titles  will  be  indefeasible  for  their  respective  interests. 
X's  heir  cannot  claim  to  hold  as  against  the  remainder-man 
because  the  settlor's  title  was  originally  defeasible.  The  settlor 
had  seisin,  had,  that  is,  a  title  good  as  against  all  save  the 
original  owner ;  *  and  the  mere  fact  that  that  title  has  now  become 
indefeasible  cannot  vary  the  rights  of  those  who  claim  under  it.^ 

1  As  to  this  see  Bk.  iv  Pt.  II  c.  i  §  9.  2  Cp.  H.L.R.  iii  318,  319. 

3 ««  We  have  had  a  great  deal  of  discussion  as  to  the  effect  of  the  Statute  of 
Limitations  in  a  matter  of  this  kind.  .  .  .  My  present  view  is  that  the  phrase 
•  statutory  conveyance '  and  so  on,  is  a  loose  metaphorical  term,  and  that  the  true 
view  is  this,  that  whenever  you  find  a  person  in  possession  of  property,  that  possession 
is  prima  facie  evidence  of  ownership  in  fee,  and  that  prima  facie  evidence  becomes 
absolute  when  once  you  have  extinguished  the  right  of  every  other  person  to 
challenge  it.  That  is  the  effect  of  s.  34  of  the  Real  Property  Limitation  Act,  and 
that  explains  how  the  person  who  has  been  in  possession  for  more  than  the  statutory 
period  does  get  an  absolute  legal  estate  in  the  fee,  and  there  is  no  one  who  can 
challenge  the  presumption  which  his  possession  of  the  property  gives,"  in  re 
Atkinson  and  Horsell's  Contract  [1912]  2  ch.  at  p.  9  per  Cozens-Hardy,  M.R. ;  a  good 
illustration  of  the  misunderstanding  which  formerly  prevailed  on  the  topic  will  be 
found  in  an  article  in  L.Q.R.  xxxiv  253,  and  see  Sir  F.  Pollock's  note  at  p.  260. 

^See  Co.  Litt.  367a  cited  above  91-92. 

•^  Pollock  and  Wright,  Possession  95  ;  and  for  a  case  in  which  these  principles 
were  applied  see  Dalton  v.  FitzGerald  [1897]  2  Ch.  86. 


SEISIN  95 

The  germs  of  the  mediaeval  doctrines  as  to  seisin  can  be  traced 
back  to  the  common  basis  of  Germanic  custom  which  we  find  in 
those  parts  of  the  Anglo-Saxon  laws  which  relate  to  the  posses- 
sion of  chattels.^  Those  doctrines  have  been  developed  and 
modified  by  the  invention  of  new  remedies  for  the  protection  of 
possession,  borrowed  in  the  first  instance  from  Roman  law ;  and 
with  those  remedies  some  of  the  law  as  to  the  nature  and  con- 
sequences of  possession  has  also  been  borrowed.^  But  the  basis 
of  primitive  doctrine  has  never  been  lost,  and  it  has  exercised  the 
most  permanent  influence  upon  the  law.  The  conditions  of  the 
working  of  the  mediaeval  jury  system  fell  in  with  a  set  of  primitive 
ideas  which  laid  the  greatest  stress  upon  the  fact  of  seisin  ;  and 
the  cessation  of  the  influence  of  Roman  law  in  the  fourteenth 
century,  which  ensured  the  peculiar  development  of  the  jury 
system,^  prevented  any  further  borrowing  from  the  Roman  ideas 
of  dominium  and  possessio.  Thus  it  has  happened  that  at  the  end 
of  this  period  the  common  law  has  worked  out  a  wholly  original 
set  of  doctrines  as  to  the  possession  and  ownership  of  land — 
doctrines  the  contents  of  which  are  perhaps  the  most  striking  of 
all  testimonies  to  its  essential  continuity.  Seisin  is  prima  facie 
ownership.  The  person  seised  has  all  the  rights  of  an  owner  : 
the  person  disseised  has  the  right  to  get  seisin  by  entry  or 
action  ;  but,  till  he  has  got  it,  he  has  none  of  the  rights  as  an 
owner.  In  other  words,  the  common  law  recognizes,  not  dominium 
and  possessio,  but  seisin  only. 

The  minds  of  philosophers  and  philosophic  jurists  have  been 
much  exercised  by  the  question.  Why  does  the  law  protect  posses- 
sion ?  *  It  will  be  clear  that  this  question  loses  much  of  its  point 
when  it  is  asked  of  a  system  of  law  which  knows  no  sharp  con- 
trast between  dominium  Sind  possessio.  The  law  protects  seisin 
because  the  person  seised  is  owner  till  some  one  else  proves  a 
better  right  to  seisin  ;  and  therefore  to  ask  why  the  law  protects 
seisin  amounts  to  asking  why  the  law  protects  ownership.  But 
perhaps  we  may  say  that  both  the  development  of  the  remedies  for 
the  protection  of  seisin  in  English  law,  and  the  development  of  the 
remedies  for  the  protection  of  possession  in  Roman  law,  show 
that  the  working  of  remedies,  which  in  the  first  instance  protect 
possession  in  order  to  aid  the  law  of  crime  and  tort,  come  at 
length  to  protect  it  in  order  to  aid  the  law  of  property ;  and  that 
they  end  by  creating  in  English  law  the  whole,  and  even  in  Roman 
law  no  inconsiderable  part,  of  the  law  of  property.^ 

1  Vol.  ii  78-80.  2  Ibid  282. 

3  Vol.  i  317,  318,  320.  ■*  Cp.  Holmes,  Common  Law  206-209. 

^  Maitland  has  shown  (P.  and  M.  ii  40-46)  that  possession  is  protected  (a)  as  a 
branch  of  the  criminal  law,  {b)  as  a  branch  of  the  law  of  tort,  (c)  as  a  branch  of  the 
law  of  property,  and  (d)  because  possession  per  se  gives  a  kind  of  right  as  against  the 


96  THE  LAND  LAW 

Such  in  outline  is  the  mediaeval  doctrine  of  seisin.  We  must 
now  glance  at  the  manner  in  which  that  doctrine  was  applied  to 
the  complex  facts  of  land-holding.  We  shall  be  struck  alike  by 
the  simplicity  and  by  the  imagination  of  the  fathers  of  the 
common  law.  We  shall  get  a  notable  illustration  of  what  Ihering 
has  well  called  "  the  economy  "  of  primitive  legal  ideas. ^  We 
shall  get  a  fresh  proof  of  the  manner  in  which  the  doctrines  of  the 
mediaeval  land  law  influenced  many  branches  of  the  common  law. 

If  seisin  means  possession,  and  if  possession  expresses  the 
fact  of  physical  control  exercised  by  a  person  over  a  thing,  two 
consequences  would  seem  to  follow.  In  the  first  place,  two  per- 
sons cannot  at  the  same  time  both  exclusively  possess  the  same 
thing.  This  principle  was  stated  by  Coke  '^  in  the  terms  of  Roman 
law;  it  was  elaborated  by  Vaughan,  C.J.  ;^  and  it  is  recognized 
by  the  modern  authorities.^  But  in  spite  of  this  theoretical  diffi- 
culty the  conception  of  seisin  was  applied  not  only  to  the  interest 
of  the  tenant  who  holds  in  demesne,  but  also  to  the  interest  of 
the  lord  who  holds  in  service ;  ^  and  not  only  to  the  tenant 
of  the  particular  estate,  but  also  to  the  reversioner  or  remainder- 
man. As  we  have  seen,  it  was  this  extension  of  the  doctrine 
of  seisin  which  was  a  principal  cause  for  the  evolution  of  the 
conception  of  estates  in  the  land.^  In  the  second  place,  it  is 
difficult  to  conceive  of  the  possession  of  an  incorporeal  thing. ^ 

man  who  is  not  possessed  ;  all  these  reasons  for  the  protection  of  possession  can  be 
traced  in  Roman  law ;  as  to  (a)  Code,  8.  4.  7.  and  11 ;  as  to  [b)  Dig.  43.  16.  i.  6 ; 
and  43.  24.  13.  pr. ;  as  to  (c)  Dig.  6.  i.  24 ;  and  43.  17.  i.  3  ;  as  to  (d)  Dig.  41.  2. 
53  ;  and  43.  17.  2. 

^  Ihenng,  Geist  des  Romischen  Rechts  (French  tr.)  iv.  235,  236,  explains  it  as 
*•  I'art  de  s'aider  adroitement  des  moyens  que  Ton  a  sa  disposition  ;  "  and  comparing 
the  ancient  law,  where  this  principle  is  all  pervading,  with  the  modern,  he  aptly  says, 
"  Celui  qui  est  pass^  maitre  manie  les  regies  de  I'art  autrement  que  le  commenfant. 
Le  maitre  travaille  avec  une  liberty  plus  large,  car  il  est  plus  sur  de  sa  science.  Le 
disciple  plus  timide  encore,  y  met  aussi  une  servility  plus  grande.  C'est  I'^cole, 
c'est  a  dire  la  p^riode  de  la  soumission  servile  a  la  regie,  qui  mene  vers  la  liberty 
dans  I'art." 

2  Co.  Litt.  368a. 

3  Holden  v.  Smallbrooke  {1668)  Vaughan  at  p.  189. 

^  Pollock  and  Wright,  Possession,  "  Possession  is  single  and  exclusive.  As  the 
Romans  said,  plures  eandem  rem  in  solidum  possidere  non  possunt.  This  follows 
from  the  fact  of  possession  being  taken  as  the  basis  of  a  legal  right.  Physical  posses- 
sion is  exclusive  or  it  is  nothing.  If  two  men  have  laid  hands  on  the  same  horse  or 
the  same  sheep,  each  meaning  to  use  it  for  his  own  purpose  and  to  exclude  the  other, 
there  is  not  any  de  facto  possession  until  one  of  them  has  gotten  the  mastery ;  "  cp. 
Williams,  Seisin  7,  "  If  one  person  is  seised  another  person  cannot  be  so." 

^Bracton  f.  81,  "  Nisi  ipse  vel  antecessores  sui  in  seysina  fuerint  de  tenemento 
illo  in  dominico  vel  servitio." 

6  Vol.  ii  350-352. 

'  Dig.  41.  3.  4.  26,  "  Nee  possideri  intelligitur  jus  incorporale ;  "  but  as  we  shall 
see  (below  97)  this  difficulty  was  not  felt  in  the  early  common  law.  •'  Where  in- 
corporeal rights  over  real  estate  consist  in  or  admit  of  exclusive  enjoyment,  the  de  facto 
exercise  of  them  is  analogous  to  possession,  and  is  protected  by  the  same  remedies," 
Pollock  and  Wright,  Possession  35. 


SEISIN  97 

But,  notwithstanding  this  difficulty,  the  conception  of  seisin  was 
extended  to  the  large  and  miscellaneous  list  of  incorporeal  things 
known  to  the  mediaeval  common  law;  and  this  extension  has 
given  rise  to  some  curious  and  long-lived  rules,  firstly  as  to  the 
transference  or  creation  of  these  incorporeal  things,  secondly  as  to 
the  manner  in  which  they  were  regarded  by  the  law,  and  thirdly 
as  to  the  conditions  under  which  they  could  be  enforced  and 
protected.  ^ 

(i)  In  the  thirteenth  century  it  is  quite  clear  that,  for  the 
transference  or  creation  of  an  incorporeal  thing,  some  act  or  acts 
of  user,  which  necessarily  varied  with  the  nature  of  the  thing, 
were  as  necessary  as  a  livery  of  seisin  in  the  case  of  a  corporeal 
thing.  These  acts  were  in  fact  the  equivalent  of  a  livery  of  seisin, 
for  they  were  the  equivalent  of  that  physical  apprehension  of  a 
corporeal  thing,  which  was  the  essence  of  such  a  livery.  Thus  the 
attornment  of  the  tenant  was  necessary  to  complete  the  grant  of 
a  seignory,  a  reversion,  a  remainder,  or  a  rent.^  Persons  were 
enfeoffed  of  rents  ;  even  Bracton  speaks  of  the  feoffee  of  a  rent ;  ^ 
and  Britton  gives  a  form  of  rent  charge  which  assumes  that  it  is 
necessary  to  give  seisin  of  the  rent  to  complete  the  validity  of  the 
grant.  ^  The  earlier  Year  Books  show  that  this  idea  was  very 
tenaciously  adhered  to.^  Even  a  fine  could  not  vest  an  advowson 
until  the  donee  had  presented ;  ^  and  we  shall  see  that  this  idea 
can  be  seen  in  the  wording  of  some  of  the  earlier  forms  of  convey- 
ance.^ In  fact,  so  deeply  rooted  was  it  in  men's  thoughts  about 
matters  legal  that  it  crops  up  in  quite  unexpected  places.  '*  It  is 
remarkable,"  says  Nicolas,^  ''that  in  all  the  records  of  the  sur- 
render and  delivery  of  the  Great  Seal,  it  is  particularly  stated  that 
on  its  being  placed  in  the  hands  of  the  new  Chancellor  or  the 
new  Keeper  he  had  sealed  Writs,  Charters,  or  Patents  therewith ; 
as  if  the  actual  use  of  the  seal  was  necessary  to  prove  that  he  had 
taken  full  possession  of  his  office." 

^The  authorities  for  this  subject  are  P.  and  M.  ii  124-148;  Pike,  Feoffment  and 
Livery  of  Incorporeal  Hereditaments,  L.Q.R.  v  29. 

2  Above  82;  Y.BB.  33-35  Ed.  I.  (R.S.)  50  (cited  vol.  ii  356  n.  3) ;  i,  2  Ed.  II. 
(S.S.)  80;  2,  3  Ed.  II.  (S.S.)  65;  15  Ed.  III.  (R.S.)  428. 

^f.  169,  cited  L.Q.R.  v.  32.  *i  270. 

5  Y.B.  21,  22  Ed.  I.  (R.S.)  608,  counsel  argues  that  an  advowson  is  an  incorporeal 
thing  of  which  there  can  be  no  transmutation  of  possession ;  but  it  seems  to  be 
admitted  that  the  mere  charter  cannot  convey  it ;  it  is  not  yet  argued  that  a  charter 
will  convey  it  because  no  transmutation  of  possession  is  possible. 

8  Y.B.  I,  2  Ed.  II.  (S.S.)  ?,per  Bereford;  and  cp.  ibid  at  p.  80  for  another  dictum 
by  the  same  judge  as  to  the  grant  of  a  seignory. 

■^  Below  224. 

8  Records  of  the  Privy  Council  vi  clxxxii ;  a  very  good  illustration  will  be  found 
in  Letters  and  Papers  xix  No.  459  (pp.  292-293)  where  an  account  is  given  firstly  of 
the  delivery  in  1545  of  the  Great  Seal  to  Wriothesley  to  keep  while  Audeley,  the 
chancellor,  was  incapacitated,  and  secondly  of  the  delivery  of  the  seal  to  him  on  his 
appointment  a  few  days  later  as  Chancellor  after  Audeley's  death. 

VOL.   III.  — 7 


98  THE  LAND  LAW 

During  the  fourteenth  century  the  lawyers  were  beginning  to 
appreciate  the  distinction  between  a  corporeal  and  an  incorporeal 
thing.      Bracton,  indeed,  had  learned  the  meaning  of  the  distinc- 
tion from  Roman  law ;  ^  but  a  knowledge  of  Roman  law  was  not, 
as  we  have  seen,  very  common  amongst  English  lawyers  of  the 
latter  part  of  the  thirteenth  century.^     "  Not  long  ago,"  said  Herle 
in  1334,^  "it  was  not  known  what  an  advowson  was,  but,  when 
the  intention  was  to  give  an  advowson  to  another,  it  would  be 
expressed  in  the  charter  that  the  alienor  gave  the  church."     In 
1334,  however,  it  was  beginning  to  be  seen  that  the  incorporeal 
advowson  was  different  from  the  physical    fabric  of  the  church. 
But  the  first  results  of  the  appreciation  of  this  distinction  seem  to 
have  been  to  produce  considerable  confusion  in  the  minds  of  the 
lawyers  as  to  the  manner  in  which  these  incorporeal  things  could 
be  transferred  or  created.     Some  lawyers  seem  to  have  thought 
that  they  could  still  be  transferred  or  created  by  attornment  or 
other  act  which  was  equivalent  to  a  livery  of  seisin.*     Others 
thought  that  a  deed  was  needed  as  well  as  an  act ;  ^  others  that 
a  deed  alone, •"  or  even  mere  words  would  suffice.^     But  the  last 
view  did  not  prevail ;  and,  when  Littleton  wrote,  it  was  settled 
that  incorporeal  things  could  pass  by  deed  of  grant  without  livery 
of  seisin.^     Littleton  does  not,  however,  say  that  a  deed  of  grant 
is  the  only  way  in  which  such  things  could    be  transferred    or 
created.      It  is  probable  that  he  inclined  to  this  view,^  though  he 
knew  well  enough  that  the  law  on  this  point  was  not  quite  settled. 
However  that  may  be,  the  law  was  settled  shortly  after  he  wrote. 
In  1490  Brian,  C.J.,  laid  it  down  that  because  an  advowson  or  a 

^Vol.  ii  274;  below  140,  141.  ^Vol.  ii  287. 

3Y.B.  7  Ed.  III.  Hil.  pi.  8,  cited  L.Q.R.  v  37. 

4Y.BB.  6  Ed.  II.  (S.S.)  130,  131;  6  Ed.  II.  (S.S.)  i  94,  gg per  Hereford,  C.J. ; 
43  Ed.  III.  Hil.  pi.  4  (cited  Pollock  and  Wright,  Possession  54)  Thorpe  says,  "  1 
deny  your  statement  that  a  man  cannot  grant  an  advowson  without  deed,  for  I  say  it 
is  well  enough  to  go  to  the  door  of  the  church  and  say,  I  grant  you  this  advowson 
and  deliver  seisin  of  the  door,  and  the  grant  is  good  enough  without  a  deed ;  and  to 
this  all  the  justices  agreed;"  see  also  Y.BB.  14  Ed.  III.  (R.S.)  xlviii  in,  112;  20 
Ed.  III.  (R.S.)  ii  24;  L.Q.R.  v  35. 

5  Y.BB.  3,  4  Ed.  II.  (S.S.)  145;  6  Ed.  II.  (S.S.)  i  94,  gs  per  Herle  arg.;  Bere- 
ford,  C.J.,  ibid  at  p.  93  admitted  that  this  might  be  so  in  the  case  of  a  demandant 
but  denied  that  it  applied  to  the  tenant. 

^  '•  Note  that  if  common  of  pasture  in  any  waste  be  granted  to  me  by  specialty, 
I  can  use  my  common  as  soon  as  I  like,  without  delivery  of  seisin,  per  Passeley  and 
M aimer thorpe.  And  Westcote  said  that  in  such  a  case  where  it  was  found  that  the 
plaintiff  was  never  seised,  but  was  disturbed  by  another  depasturing  beasts  there,  he 
brought  the  assize  and  recovered,"  the  Eyre  of  Kent  (S.S.)  ii  3;  Y.BB.  20  Ed.  III. 
ii  194;  12  Hy.  IV.  Hil.  pi.  13. 

'"An  advowson  is  a  thing  which  cannot  be  handled,  wherefore  it  passes  by 
words,"  Y.B.  14  Ed.  III.  (R.S.)  14  per  Willoughby,  C.J.  ;  to  the  same  effect  Y.B. 
17  Ed.  III.  (R.S.)  56  per  Sharshulle,  J. 

8  §§  618,  628. 

'See  §  183  where  he  speaks  of  "such  things  which  cannot  be  granted  nor 
filiened  without  deed  or  fine." 


SEISIN  99 

rent  passed  by  grant  it  could  not  pass  by  livery  ;  and  to  this 
view  of  the  law  Vavisor  agreed,  and  Townshend  did  not  dissent.^ 
Coke  was  thus  warranted  in  laying  it  down  that  "  an  advowson 
doth  not  lie  in  livery  but  in  grant,"  ^  and  the  same  rule  obviously 
must  be  applied  to  other  incorporeal  things.  It  followed  also 
that,  if  a  fine  was  levied  or  a  recovery  suffered  of  such  things, 
they  vested  in  the  transferee  by  the  effect,  not  of  the  execution 
of  the  judgment,  but  of  the  judgment  itself^ 

But  though  it  had  thus  been  finally  settled  that  these  incor- 
poreal things  could  be  transferred  or  created  by  deed,  and  that 
they  did  not  lie  in  livery,  many  of  the  consequences  of  the  medi- 
aeval law  remained.  This,  as  we  shall  now  see,  was  due  to  the 
manner  in  which  they  were  regarded  by  the  law,  and  to  the  con- 
ditions under  which  they  were  enforced  and  protected. 

(2)  A  lord  has  a  right  to  seisin  of  his  tenant's  services — fealty, 
rent,  knight  service,  suit  of  court,  and  so  forth.*  A  person  who 
has  charged  his  land  with  rent  in  favour  of  another  (though  that 
other  holds  nothing  of  him)  has  given  a  real  right  to  that  rent. 
A  man  who,  or  a  religious  house  which,  has  granted  a  corody  to 
another,  gives  to  that  other  a  real  right  to  the  food,  clothes,  firing, 
or  lodging  specified  in  the  grant.  ^  A  man  who  grants  an  advowson 
or  a  right  of  common  grants  a  thing.  The  remedies  provided  for 
the  enforcement  and  protection  of  all  these  incorporeal  rights 
make  it  very  clear  that  they  are  regarded  as  things  to  which  the 
doctrines  of  seisin  can  be  applied.  If  the  tenant  withholds  his 
services  the  lord  may  either  bring  a  real  action,  the  writ  "  of  cus- 
toms and  services,"  ^  in  which  he  alleges  that  some  ancestor  was 
seised  of  these  services  by  taking  esplees  to  such  a  value  ;  or,  if 
he  has  recently  been  deprived  of  them,  he  may  bring  an  assize 
of  novel  disseisin.''  The  lord  also  has  similar  proprietary 
remedies  against  third  persons  who  disseise  him  of  his  tenant's 
services.^  Similarly  the  person  entitled  to  a  rent  charge^  or  a 
corody  can  bring  an  assize  of  novel  disseisin  if  he  is  deprived  of 
his  rights  either  by  the  person  bound  to  perform  or  by  any  third 

ly.B.  5  Hy.  VII.  Pasch.  pi.  5. 

2  Co.  Litt.  335b  ;  hence  I  do  not  regard  Pike's  strictures  on  the  accuracy  of  Coke's 
statement,  L.Q.R.  v  36,  as  justified. 

3  Shelley's  Case  {1579-1581)  i  Co.  Rep.  at  f.  97b. 

4  In  Y.B.  3,  4  Ed.  II.  (S.S.)  18  issue  was  taken  on  the  question  whether  or  not 
the  lord  was  seised  of  the  tenant's  fealty  ;  in  Y.B.  6,  7  Ed.  II.  (S.S.)  6-7  the  effect  of  a 
deed  of  release  on  an  alleged  seisin  of  services  was  discussed,  and  it  was  alleged  that 
the  deed  proved  the  seisin  to  be  tortious  ;  see  Bevil's  Case  (1583)  4  Co.  Rep.  8a. 

^ "  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,  clothing,  or  other  commodities,"  P.  and  M.  ii  133 ;  below  152-153. 

"Above  15-16. 

"^  P.  and  M.  ii  125 ;  cp.  Y.B.  16  Ed.  III.  (R.S.)  ii  500,  502. 

8  P.  and  M.  ii  126.  *  Litt.  §  236. 


100  THE  LAND  LAW 

person.^  We  have  seen  that  the  person  entitled  to  an  advowson 
was  protected  by  a  series  of  real  actions  similar  to  those  which 
protected  the  person  entitled  to  land ;  ^  and  the  same  proposition 
is  true  of  the  grantee  of  a  right  of  common.^ 

(3)  It  was  the  nature  of  these  remedies  by  which  these 
incorporeal  things  were  enforced  and  protected  which  long 
preserved  many  of  the  principles  of  the  mediaeval  law  relating  to 
them.  Thus  an  advowson  might  be  granted  by  deed ;  but,  says 
Maitland,  "the  grantee  until  he  has  successfully  presented  is  in 
an  extremely  insecure  position."*  If  the  church  falls  vacant  he 
can  assert  his  right  to  present  by  the  writ  Quare  hnpedit ;  ^  but  if 
a  wrongdoer  presents  before  the  person  rightfully  entitled,  and  six 
months  elapse,  the  latter  cannot  sue  by  a  possessory  action,  for 
he  is  not  seised ;  and  he  cannot  sue  by  a  proprietary  action 
because  he  cannot  allege  that  he  or  his  ancestor  has  been  seised  of 
the  right  by  actually  presenting.®  Similarly  the  attornment  of 
the  tenant  of  the  land  was  necessary  to  complete  the  transfer  of 
a  seignory,  a  reversion,  a  remainder,  or  a  rent  till  Anne's  reign. ^ 
"He  who  hath  a  rent,"  says  Coke,^  "  hath  not  taken  the  explees 
thereof  until  he  hath  seisin  by  the  hands  of  the  tenant  of  the 
freehold  ...  for  he  who  hath  a  rent  (and  especially  a  rent  seek) 
hath  not  a  perfect  or  explete  or  complete  estate  in  the  rent  until 
he  had  seisin  thereof."  Similarly,  "if  there  be  lord  mesne  and 
tenant,  and  the  lord  will  grant  the  services  of  the  mesne;  ...  it 
is  necessary  that  the  mesne  attorn."  ^  It  is  not  surprising  to  find 
that  those  entitled  to  these  incorporeal  things  were  always  careful 
to  get  seisin ;  '^^  and  that  the  conveyancers,  when  they  were  creat- 

^13  Edward  I.  st.  i  c.  25,  "Forasmuch  as  there  is  no  writ  in  the  Chancery 
whereby  plaintiffs  can  have  so  speedy  remedy  as  by  writ  of  Novel  disseisin,"  it  is 
enacted  that  such  a  writ  shall  lie  for  estovers  of  wood ;  profit  to  be  taken  in  woods 
by  gathering  of  nuts,  acorns,  and  other  fruits ;  corodies ;  toll,  tronage,  passage, 
pontage  to  be  taken  in  places  certain;  keeping  of  parks,  woods,  etc.,  and  other  baili- 
wicks and  offices  in  fee  ;  common  of  turbary  ;  fishing. 

2  Above  24-25.  '  Above  19-20. 

4  P.  and  M.  ii  138 ;  cp.  Y.BB.  6  Ed.  II.  (S.S.)  64 ;  14  Ed.  III.  (R.S.)  24. 

^  Above  25. 

6  13  Edward  I.  st.  i  c.  5  ;  Y.B.  6  Ed.  II.  (S.S.)  per  Herle  arg. ;  the  law  was  not 
altered  till  7  Anne  c.  18. 

'5  Anne  c.  3 ;  Y.B.  18,  19  Ed.  III.  (R.S.)  328,  330;  Litt.  §§  567-572;  L.Q.R.  ii 
490-492. 

8  Brediman's  Case  (1607)  6  Co.  Rep.  at  f.  58b ;  and  cp.  Y.B.  20  Ed.  III.  (R.S.)  ii 
96-98.  The  position  of  the  holder  of  a  rent  seek  was  not  improved  till  by  4  George 
II.  c.  28  §  5  he  got  power  to  distrain. 

»  6  Co.  Rep.  at  f.  59a. 

1"  This  is  well  illustrated  by  some  instructions  which  Thomas  Cromwell  gave  in 
1528  to  "  Maister  Willyam  Holgill  for  possession  lyverage  and  season  to  be  taken  in 
the  parsonage  of  Rudly  in  Clevelonde ;  "  one  of  these  instructions  runs  as  follows  : — 
"  Item  that  the  attorneis  named  in  the  deede  of  Feoffement  made  to  the  said  Willyam 
Holgill  and  others,  do  enter  into  thacre  of  londe  named  in  the  said  deede  of  Feoffe- 
ment and  delyver  season  by  a  turfe  to  the  saide  Maister  Holgill,  and  also  to  delyver 
possession  and  season  by  the  ryng  of  the  churche  dore,"  Merriman,  Letters  of  Thomas 
Cromwell  i  323. 


ESTATES  101 

ing  or  transferring  them,  were  equally  careful  to  insert  a  clause 
stating  that  the  transferor  has  put  the  transferee  "  in  full  and 
actual  possession  and  seisin  of  the  said  annuity  or  yearly  rent  by 
the  payment  of  sixpence  of  lawful  money  of  England  at  the  time 
of  the  ensealing  and  delivery  of  these  presents  in  the  name  of 
seisin  and  possession  thereof."^ 

The  incapacity  of  an  immature  system  of  law  to  distinguish 
between  a  right  and  the  subject  of  a  right,  the  large  space  which 
the  land  law  filled  in  the  law  of  the  Middle  Ages,  the  convenience 
to  a  system  which  worked  with  a  jury  of  insisting  upon  some  open 
and  notorious  act — all  worked  together  to  produce  these  extensions 
of  the  doctrine  of  seisin,  which  make  it  important  for  the  right 
understanding  of  many  branches  of  the  common  law.  We  shall 
see  that  the  analogous  subject — the  possession  of  movables — is 
no  less  important  in  the  law,  criminal  and  civil,  relating  to 
chattels. 

We  must  now  turn  to  the  various  estates  in  the  land  of  which 
men  could  be  seised. 

§  6.  Estates 

The  growth  of  the  legal  conception  of  an  estate  in  the  land  at 
the  end  of  the  thirteenth  century,^  and  the  rapid  growth  in  the 
following  century  of  detailed  rules  as  to  the  varieties  of  these 
estates,  and  as  to  their  qualities  and  incidents,  had,  at  the  close  of 
the  mediaeval  period,  resulted  in  the  formation  of  a  very  definite 
set  of  principles  both  as  to  their  manipulation,  and  as  to  the 
respective  rights  and  duties  of  those  entitled  to  them.  But  during 
the  twelfth  and  the  greater  part  of  the  thirteenth  centuries,  during 
the  period,  that  is,  before  the  common  law  had  acquired  its  theory 
of  estates,  there  were  no  very  definite  restrictions  upon  the  kinds 
and  the  nature  of  the  interests  in  the  land  which  the  landowner 
could  create  at  his  will.  He  therefore  was  able  to  do  many  things 
which  became  impossible  to  his  successors  after  the  various  kinds 
of  estates  had  become  fixed  and  their  nature  determined  by  rigid 
rules  of  law.^  In  fact,  the  point  of  view  from  which  the  law 
regarded  his  powers  to  create  such  estates  is  not  at  all  like  that 
of  modern  times.  We  at  the  present  day  see  a  clear  distinction 
between   creating   an   estate  in  favour  of  another   and    making 

^The  Modern  Conveyancer  (ed.  1706)  i  5.  ^Vol.  ii  350-352. 

3  P.  and  M.  ii  27,  "It  is  a  mistake  to  suppose  that  our  common  law  starts  with 
rigid  narrow  rules  .  .  .  knows  only  a  few  precisely  defined  forms  of  gift  and 
rejects  everything  that  deviates  by  a  hair's-breath  from  the  established  models. 
On  the  contrary,  in  the  thirteenth  century  it  is  elastic  and  liberal,  loose  and 
vague." 


102  THE  LAND  LAW 

covenants  which  will  run  with  that  estate  and  bind  it  in  the  hands 
of  subsequent  owners.  If  we  merely  create  an  estate  we  simply 
convey  a  well-known  definite  thing  with  well-known  legal  at- 
tributes. If  we  attempt  to  attach  new  incidents  of  our  own  devis- 
ing to  that  thing  we  feel  that  we  are  engaging  in  quite  a  different 
legal  operation.  We  feel  that  we  are  making  in  some  sort  a  new 
law  which  subjects  the  holders  of  that  thing  to  special  conditions 
different  from  those  to  which  they  are  subjected  by  the  ordinary 
law  of  the  land.^  In  the  twelfth  and  thirteenth  centuries  all  kinds 
of  dealing  with  land  were  regarded  from  this  latter  point  of  view. 
The  law  seems  to  start  from  what  is  really  a  very  primitive  stand- 
point. It  seems  to  think  that  the  normal  and  regular  state  of 
things  is  that  in  which  the  land  is  occupied  and  cultivated  by  the 
owner  in  his  lifetime,  and  descends  after  his  death  to  his  kin.  All 
dispositions  of  land  which  divert  it  from  these  purposes  or  take 
it  away  from  the  kin  are  regarded  as  so  many  deviations  from 
the  common  law — permissible  deviations  it  may  be,  but  still 
deviations.  The  owner  who  makes  these  dispositions  is  regarded 
as  subjecting  the  land  by  the  form  of  his  gift  to  a  special  law  out- 
side the  ordinary  law.^ 

Before  the  thirteenth  century  there  were  indeed  limitations  of 
a  vague  sort  upon  the  power  to  alienate  imposed  in  the  interests 
of  lords  or  tenants  or  heirs ;  ^  but  provided  that  a  landowner  had 
the  power  to  alienate  there  was  very  little  law  as  to  the  modes  in 
which  that  power  to  alienate  should  be  exercised.  A  man  could 
impose  almost  any  set  of  laws  or  limitations  upon  his  land  by  the 
form  of  his  gift.  These  large  powers  were  due  in  part  to  very 
primitive  ideas  as  to  the  things  which  a  man  could  effect  by  his 
own  agreement,  in  part  to  imitation  of  the  large  powers  assumed 
by  royal  personages  in  their  dealings  with  land,  and  in  part 
perhaps,  in  Bracton's  day,  to  an  application  of  the  Roman  rules  as 
to  what  could  be  done  by  means  of  conditions. 

In  the  Laws  of  Henry  I.  the  maxim  that  the  agreement  of 
the  parties  will  prevail  against  the  law  is  expressly  stated  ;  ^  and 
we  have  seen  that  in  Saxon  times  the  number  of  things  which 
a  man  could  do  by  his  agreement  was  great.      He  could   give 

1  Cp.  e.g.  Spicer  v.  Martin  (1888)  14  A.C.  at  p.  25. 

2  Vol.  ii  68,  92;  Bracton  f.  igb,  **  Item  poterit  conditio  impedire  descensum  ad 
proprios  hasredes,  contra  jus  commune,  ut  si  dicam,  Concede  tibi  tantum  terra2  ad 
terminum  decem  annorum,  et  post  terminum,  revertatur  ad  me  terra  ilia,  et  si  infra 
terminum  decem  annorum  decessero,  concede  pro  me  et  hasredibus  meis  quod  terra 
ilia  tibi  remaneat  ad  vitam  tuam  vel  in  foedo,  et  sic  facit  conditio  liberum  tenementum 
et  foedum  et  tollit  conditio  hseredibus  assisam  mortis  antecessoris." 

^  Above  73-74,  76-78. 

^  "  Pactum  enim  legem  vincit,"  xlix.  5  ;  cp.  Bracton,  f.  17b,  '♦  Modus  enim  legem 
dat  donationi,  et  modus  tenendus  est  contra  jus  commune  et  contra  legem,  quia 
modus  et  conventio  vincunt  legem." 


ESTATES  103 

limself  a  landlord,  an  overlord,  or  a  protector.^  Again,  the 
lumber  of  things  which  the  king,  or  his  greater  thegns,  who 
litated  him,  could  do  by  the  written  Book  were  wide  and 
miscellaneous.'^  "  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  influence  of  the  royal  privilegia  goes  far  to  explain  the 
power  of  the  forma  doni."  ^  In  Bracton's  time  these  vague  rules 
were  expressed  in  the  language  of  Roman  law.  Bracton  found 
much  in  the  Institutes  of  the  conditions  which  could  be  attached 
to  a  stipulatio.  He  borrowed  this  learning ;  and,  when  he  is 
considering  the  nature  of  the  different  interests  which  landowners 
can  create  in  their  lands,  he  talks  of  the  conditions  annexed  to 
the  land  by  the  forma  doni  which  will  put  the  land  outside  the 
ordinary  law.*  Here,  as  elsewhere,  he  is  clothing  an  old  idea 
in  Roman  terms.  In  fact,  this  old  idea  that  a  person  by  limiting 
his  land  in  certain  ways  was  putting  that  land  outside  the  common 
law  lived  on  in  forms  of  expression  used  by  lawyers  after  the 
kinds  of  estates  known  to  the  law  and  their  incidents  had  become 
fixed.  It  is  one  of  the  roots  of  the  modern  application  of  the 
term  "specialty"  to  mean  a  deed.^ 

In  Bracton's  day  little  had  been  done  to  reduce  to  order  the 
variety  of  these  laws  which  a  landowner  could  impose  upon  his 
land.  The  old  fetters  upon  the  powers  of  alienation  were  dis- 
appearing. The  new  law,  which  will  know  only  certain  definite 
types  of  estate,  had  not  yet  grown  up.  Thus  a  landowner  may 
give  land  and  say  that  it  shall  not  be  alienated,  or  shall  not  be 
alienated  to  a  particular  class,  e.g.   to  the  Jews  or  a  monastery.^ 

^  Vol.  i  21,  22.  2  Ibid  20,  21 ;  vol.  ii  6g. 

3  P.  and  M.  ii  I2.  ^  Vol.  ii  263-264,  281. 

^  Salmond,  Essays  in  Jurisprudence  93,  94,  *'  In  our  early  law  an  agreement  was, 
in  general,  regarded,  not  as  a  title  conferring  rights  or  creating  obligations  at  common 
law,  but  as  itself  the  origin  of  a  rule  of  special  law  excluding  the  common  law,  just  as 
a  local  custom  did.  .  .  .  This  idea  is,  indeed,  the  origin  of  the  term  specialty,  as 
applied  to  a  deed.  The  term  expresses  the  idea  of  special  law  as  opposed  to  common 
law ;  a  deed,  as  evidence  of  such  a  rule  of  special  law,  came  to  be  called  a  specialty : 
EspecialtS  qe  defet  commune  droit  [Y.B.  4  Ed.  II.  102]." 

^  P.  and  M.  ii  25,  26,  and  references  there  cited ;  Madox,  Form.  nos.  149,  160, 
201,  327,  329,  470  ;  Eynsham  Cart,  i  nos.  197,  390,  450  ;  L.Q.R.  vii  63,  64 — a  pre- 
cedent of  a  thirteenth-century  conveyance  in  which  alienation  to  Jews  and  religious 
houses  is  prohibited ;  Bracton  f.  13.  The  general  principle  is  broadly  expressed  by 
Bracton  f.  32b,  "  Ita  poterit  donator  in  donatione  sua  cum  consensu  accipientis 
legem,  conditionem,  et  modum  apponere  quem  voluerit,  dum  tamen  hoc  non  sit  in 
prejudicium  sui  ipsius  et  hseredum  suorum,  quamvis  hoc  sit  contra  legem  terrae  et 
consuetudinem  regni ; "  cp.  Britton  i  256,  257  ;  and  for  an  attempt  to  restrict  alien- 
ation cp.  Y.B.  I,  2  Ed.  II.  (S.S.)  62. 


104  THE  LAND  LAW 

It  is,  as  we  have  seen,  by  no  means  settled  that  the  landowner 
cannot  devise  his  land.^  We  shall  see  that  it  was  this  power  to 
determine  by  condition  what  should  be  the  fate  of  land  in  certain 
events  that  enabled  land  to  be  given  in  various  ways  as  security 
for  money  lent.^  This  same  power  enabled  landlords  to  give  a 
remainder  after  a  fee  limited  on  condition^ — even  a  remainder 
which  in  later  law  would  have  been  described  as  contingent.* 
Perhaps  the  best  illustration  of  the  freedom  of  action  assumed  by 
the  settlor  of  land  at  this  period  is  to  be  found  in  the  actual 
settlement  of  Thomas  of  Weyland  in  1278.^  Thomas  recognized 
by  fine  that  a  manor  held  by  him  of  the  Earl  of  Gloucester 
belonged  to  Geoffry  of  Ashley.  In  return  Geoffry  granted  it  to 
Thomas,  Margery  his  wife,  and  Richard  his  son.  Thomas  and 
Margery  were  to  hold  the  property  of  the  lords  of  the  fee  during 
their  lives.  After  their  death  it  was  to  remain  to  Richard  and 
the  heirs  of  his  body,  to  be  held  of  the  right  heirs  of  Thomas. 
If  Richard  died  without  an  heir  of  his  body  the  land  was  then 
to  remain  to  the  heirs  male  of  Thomas  begotten  on  Margery,  to 
be  held  of  the  right  heirs  of  Thomas.  If  these  heirs  male  died 
without  heirs  of  their  bodies  it  was  to  remain  to  the  right  heirs 
of  Thomas,  to  be  held  of  the  chief  lords  of  the  fee.  When 
Weyland  committed  felony  and  abjured  the  realm,  the  validity 
of  this  settlement  came  into  question.  The  Earl  of  Gloucester 
argued  that  it  was  a  mere  fraud,  intended  to  deprive  him  of  his 
escheat.  The  case  was  so  unprecedented  that  it  was  argued 
before  all  the  judges,  the  barons  of  the  Exchequer,  the  Council, 
and  Parliament;^  and  the  fine,  so  far  as  regarded  Margery's 
estate,  was  upheld.  As  Maitland  points  out,^  this  settlement 
shows  us  "what  a  judge  of  the  Common  Pleas  thought  that  he 
could  do  in  1278;  not  only  could  he  create  remainders  after 
conditional  fees,  but  he  could  play  some  tricks  with  tenures  which 
seem  very  odd  to  us  who  have  the  happiness  of  living  under 
Quia  Emptores." 

1  Above  75.  ^  Below  129-130. 

2  L.Q.R.  vi  22  ;  P.  and  M.  ii  23,  24,  and  references  there  cited. 

*  Bracton  f.  13,  "  Item  dare  poterit  quis  concubinae  suae  .  .  .  et  pueris  suis  natis 
et  nascituris,  vel  haeredibus  eorum  vel  assignatis;  "  cp.  a  similar  statement  in  Britton 
i  231;  Britton's  fourteenth-century  annotator  says,  "In  feoffments  it  behoveth  to 
name  certain  purchaser,  and  certain  donor,  and  certain  tenement ;  and  those  who 
were  not  in  rerum  natura  at  the  time  of  the  translation  cannot  claim  part  in  the 
thing  transferred;  "  Madox,  Form.  no.  140  (7  Ric.  I.). 

5  R.P.  i  66  (19  Ed.  I.  no.  i) ;  cp.  L.Q.R.  vi  24  ;  Madox,  Form.  no.  555. 

8  "  Et  quia  casus  consimilis  nunquam  antea  evenit  predictus  Comes  Domino 
Regi  supplicavit  quod  precipere  vellet  scrutari  Rotulos  de  Itiner'  Justic'  de  antiquis 
temporibus,  ut  de  tempore  Martini  de  PateshuUe  et  aliorum  Justiciariorum  ante  et 
post;  et  etiam  Rotulos  tam  de  Banco  quam  de  Cancellaria,  et  de  Scaccario  de 
consimili  casu  si  inveniri  poterit." 

7  L.Q.R.  vi  24. 


ESTATES  IN  POSSESSION  105 

We  may  perhaps  see  some  trace  of  this  period  of  uncertainty 
as  to  the  kind  of  interests  which  landowners  could  create  in  the 
controversy — still  not  perhaps  settled — as  to  whether  the  law 
knows  such  a  thing  as  a  determinable  fee.^  The  estates  which 
landowners  can  create  became  gradually  fixed,  not  by  any  definite 
statute,  but  by  the  practice  of  conveyancers  and  by  the  growing 
precision  of  other  rules  of  law,  notably  the  rules  relating  to  seisin. 
We  cannot,  therefore,  expect  to  find  any  definite  opinion  as  to 
the  validity  of  unusual  limitations  which  do  not  appear  to  offend 
against  any  of  the  well  settled  principles  of  the  law. 

This  wide  power  of  creating  interests  in  land  necessarily 
brought  into  prominence  the  distinction  between  present  existing 
interests,  and  interests  which  will  only  take  effect  when  some 
condition  has  been  fulfilled,  or  after  the  expiration  of  some 
definite  present  interest.  It  emphasized,  that  is  to  say,  the 
difference  between  estates  in  possession  and  estates  in  expectancy. 
Within  each  of  these  two  classes  of  estates  certain  forms  of 
limitation  became  usual,  and  the  law  began  to  have  definite  rules 
about  their  nature.  This  process,  by  which  certain  forms  of 
estate  gradually  emerged  and  then  became  stereotyped,  I  must 
now  endeavour  to  trace.  I  shall  deal  firstly  with  the  leading 
classes  of  estates  in  possession,  and  secondly  with  estates  in 
expectancy. 

Estates  in  Possession 

The  estate  in  fee  simple. 

In  Bracton's  day  it  was  settled,  as  we  have  seen,  that  a  gift 
to  a  man  and  his  heirs  gave  nothing  to  the  heirs. ^  It  is  probable 
that  the  technical  legal  reasoning  by  means  of  which  this  result 
was  reached  must  be  looked  for  in  the  law  as  to  warranty.  If 
an  ancestor  alienated  land  with  warranty,  the  obligation  of  this 
warranty  descended  upon  his  heir.  The  heir  was  therefore  de- 
barred from  recovering  the  land  to  which  he  might  otherwise 
have  had  a  title.  A  case  from  Bracton's  Note  Book,^  cited  by 
Maitland,  shows  us  a  feoffment  with  warranty  by  the  plaintiff's 
ancestor  pleaded  in  answer  to  the  plaintiff's  claim.  As  Maitland 
says,  **  were  it  fully  established  that  a  tenant  in  fee  simple  could 
alienate  without  his  heir's  consent,  a  reliance  on  warranty  would 
be  out  of  place."  ^  This  case,  therefore,  coming  from  a  time 
when  this  rule  was  very  new,  gives  us  a  valuable  hint  as  to  the 

^Pollock,  Land  Laws  App.  221-223;  L.Q.R.  ii  395;  iii  399,  403  ;  Gray,  Per- 
petuities {2nd  ed.)  31,  32,  556-560. 

2  Above  75.  ^  Case  224. 

^  P.  and  M.  ii  311  n.  i. 


106  THE  LAND  LAW 

mode  in  which  the  final  result  was  reached,  and  renders  the  more 
probable  Blackstone's  conjecture  that  express  warranties  were 
introduced  to  evade  the  rule  as  to  non-alienation  without  the 
consent  of  the  heir.^  The  forces  which  set  in  motion  this  chain 
of  legal  reasoning  must  probably  be  looked  for  (i)  in  the  bias  of 
the  courts  in  favour  of  free  alienation,  and  (2)  in  the  feeling  that 
any  other  interpretation  might  hinder  the  lord's  right  to  a  relief 
— if  the  heir  was  allowed  to  take  as  purchaser,  it  is  not  at  all 
clear  that  the  lord  would  be  entitled  to  a  relief^  Thus  the  rule 
which  made  the  word  *' heirs"  a  word  of  limitation  merely  was 
in  the  unusual  position  of  falling  in  with  the  policy  and  doctrines 
of  the  king's  judges,  and  of  being  not  altogether  opposed  to  the 
interests  of  the  great  landowners.  In  other  words,  it  was  desired 
by  the  two  sections  of  the  community  whose  policy  and  wishes 
were  the  main  forces  which  moulded  the  mediaeval  land  law. 

But  though  it  was  settled  in  the  thirteenth  century  that  the 
word  "  heirs  "  was  a  word  of  limitation,  it  was  not  quite  settled, 
when  Bracton  wrote,  whether  or  no  an  estate  in  fee  simple  which 
had  been  alienated  would  go  back  to  the  donor  on  the  failure  of 
the  heirs  of  the  original  donee.  It  is  stated  in  some  passages  in 
Bracton  that  an  original  donor  need  not  warrant  the  title  of  an 
assignee  of  his  donee  unless  his  original  gift  to  his  donee  had 
been  to  the  donee,  his  heirs  and  assigns}  As  Maitland  points 
out,  a  person  who  could  not  call  upon  a  warrantor  was  in  a  weak 
position  if  his  right  to  the  land  were  attacked.*  Again  it  is 
stated  by  Bracton  and  Britton,  and  laid  down  as  law  in  decided 
cases,  that  the  estate  of  a  bastard  who  dies  childless  will  go  back 
to  the  donor  on  his  death,  whether  or  no  he  has  alienated  it.*^ 
On  the  other  hand,  there  are  other  passages  in  Bracton  which 
point  to  the  later  rule  that  the  estate  to  a  man  and  his  heirs  will 
last  so  long  as  either  the  donee,  or,  if  he  has  alienated,  his  alienee, 
has  heirs ;  '^  and  we  have  seen  that  it  was  in  this  sense  that  the 

^  Comm.  ii  301.  Maitland  tells  us,  P.  and  M.  ii  311  n.  i,  that  the  clause  of 
warranty  becomes  a  normal  part  of  the  charter  of  feoffment  about  the  year  1200. 

2  Fraudulent  feoffments  of  a  man's  eldest  son  to  evade  wardship  were  dealt  with 
by  the  Statute  of  Marlborough  {52  Henry  III.  c.  6).  In  Y.B.  3,  4  Ed.  II.  (S.S.)  184 
(no.  69)  there  is  a  good  illustration  of  the  preference  for  title  by  inheritance  over  title 
by  purchase. 

2  Bracton  f.  17b  ;  P.  and  M.  ii  14.  ^  Ibid  14  n.  3. 

^  Bracton  f.  12b ;  Bracton's  Note  Book  case  402 ;  Britton  i  223  ;  ii  302,  and 
other  references  cited  P.  and  M.  ii  14  n.  2.  Bracton  f.  20b  says  that  the  limitation 
to  heirs  and  assigns  was  first  invented  to  help  the  bastard. 

^Bracton  ff.  23b,  48b— it  is  clear  from  these  passages  that  difficult  problems  as 
to  services  and  incidents  due  might  arise;  if  A  enfeoffs  B  to  hold  of  him  by  knight 
service,  and  B  enfeoffs  C  to  hold  of  him  in  socage,  and  B's  estate  escheats,  so  that 
C  now  holds  of  A — is  A  entitled  to  wardship  of  C's  heir  ?  "  Solvat  hoc  si  poterit," 
says  Bracton,  *'  diligens  et  providus  curialis ; "  as  such  questions  could  but  rarely 
arise  after  Quia  Emptores,  the  practical  obstacle  to  giving  the  larger  meaning  to  a 
gift  to  a  man  and  his  heirs  disappeared. 


ESTATES  IN  POSSESSION  107 

law  was  finally  settled  in  Edward  I.'s  reign.^  Perhaps  the  settle- 
ment made  by  the  statute  of  Quia  Emptores  -  of  the  vexed 
question  of  the  power  to  alienate  had  something  to  do  with  the 
final  result.  The  recognition  by  that  statute  of  the  power  of  the 
tenant  in  fee  simple  to  alienate  freely,  and  the  fact  that  the  alienee 
must  now  step  into  the  shoes  of  the  alienor,  and  hold  of  his 
alienor's  lord,  must  have  destroyed  much  of  the  old  reasoning 
which  would  have  allowed  a  lord,  who  had  granted  to  a  man  and 
heirs  simply,  to  disregard  the  assignee  of  his  donee.  Every  gift 
to  a  man  and  his  heirs  made  after  the  statute  carried  with  it  the 
power  to  assign,  and  had  therefore  by  implication  of  law  the  same 
effect  as  the  older  gift  to  a  man,  his  heirs  and  assigns. 

It  is  probable  that  the  same  two  causes  which  led  the  courts 
to  hold  that  the  word  "  heirs  "  is  a  word  of  limitation  had  much 
to  do  with  the  further  development  of  the  principle  which  is 
known  as  the  rule  in  Shelley's  Case?  At  the  beginning  of  Edward 
I  I.'s  reign  the  rule  had  not  clearly  emerged  ;  *  but  towards  the 
end  of  the  reign  legal  opinion  was  inclining  to  it.^  It  was  hinted 
at  in  1342.*^  It  was  laid  down  clearly  enough  in  135 1  ^  and 
1365,^  and  was  made  the  basis  of  a  decision  in  1367.^  The  cases 
show  us  that  it  was  based  partly  upon  the  policy  of  rendering 
land  freely  alienable,  and  partly  upon  the  fact  that  any  other  in- 
terpretation might  have  defrauded  the  lord  of  his  relief.  The 
latter  cause  is  much  insisted  on  by  Thorpe  in  1367.^^    In  addition 

!r     ^  Y.B.  33-35  Ed.  I.  (R.S.)  362  ;  vol.  ii  349.  2  Above  80. 

'(1579-1581)  r  Co.  Rep.  at  f.  104a,  "When  the  ancestor  by  any  gift  or  convey- 
ance takes  an  estate  of  freehold,  and  in  the  same  gift  or  conveyance  an  estate  is 
limited  either  mediately  or  immediately  to  his  heirs  in  fee  or  in  tail,  that  always  in 
such  cases  the '  heirs '  are  words  of  limitation  of  the  estate  and  not  words  of  purchase." 

^Y.B.  2,  3  Ed.  II.  (S.S.)  4-7 — several  reports  of  the  same  case  from  which  it 
appears  that  the  rule  was  not  known  as  an  absolute  rule  of  law ;  in  one  report  how- 
ever, at  p.  7,  Stanton,  J.,  says,  "  First  you  limit  to  Roger  for  the  term  of  his  life  and 
afterwards  to  the  heirs  of  Roger  of  his  body  begotten,  so  that  his  heirs  get  a  fee  tail 
by  means  of  the  conusance.     That  is  not  reason." 

^Y.B.  18  Ed.  II.  ff.  577,  578 — the  limitation  was  to  John  and  Matilda  and 
Walter  their  son  for  life,  remainder  to  the  heirs  of  the  body  of  Walter,  and  if  he  died 
without  an  heir  of  his  body  remainder  to  the  right  heirs  of  John;  Walter  died  with- 
out an  heir  of  his  body  in  the  lifetime  of  John.  John  died  seised.  The  question 
whether  he  was  seised  only  of  a  life  estate  or  in  fee  was  the  question  at  issue  between 
his  heir  and  a  creditor  by  Statute  Merchant.  The  court  inclined  to  the  opinion  that 
John  had  the  fee ;  Trivaignon  said,  "  Jeo  vous  proeve  que  par  la  fine  nul  droit  ne  poit 
accrestre  a  dreitz  heirs  John  vivant  lui,  mes  en  ascun  personne  convenit  il  demorrer  ; 
par  que  apres  la  mort  Walter  il  convenit  demorrer  en  la  personne  John." 

«  Y.B.  16  Ed.  III.  (R.S.)  ii  212,  214. 

■7  Y.B.  24  Ed.  III.  Mich.  pi.  79  =  Bro.  At.  Done  pi.  55. 

8  Y.B.  38  Ed.  III.  Mich.  p.  26  Candish  said,  "  En  ce  cas  le  terre  est  done  a  R 
et  K  [husband  and  wife]  et  J  [their  son]  et  les  heires  engendres,  et  pur  defaut  d'issu 
le  remainder  a  R  et  K  et  lour  heires :  issint  en  effet  auront  ils  estat  de  fee  simple, 
coment  que  les  heires  de  J  auront  mesne  estat  en  le  tail." 

9  Y.B.  40  Ed.  III.  Hil.  pi.  18;  cp.  Y.B.  II  Hy.  IV.  Trin.  pi.  14. 

^^  Y.B.  40  Ed.  III.  Hil.  pi.  18,  "Jeo  scay  bien  ou  vous  voudrez  este  mes  vous 
avez  pledez  que  vous  ne  duissomes  mie  aver  pay  reliefe,  pur  ceo  que  vous  estes  eins 
come  purchasour  .  .  .  mes  vous  estes  eins  come  heire  a  vostre  pere." 


108  THE  LAND  LAW 

to  these  reasons  we  can  see  also  another  reason  in  the  necessity 
of  meeting  certain  technical  difficulties  which  were  beginning  to 
be  felt  as  to  permitting  an  abeyance  of  the  seisin — difficulties 
which  in  their  origin  were  caused  to  some  extent  by  the  fact  that, 
if  an  abeyance  of  the  seisin  were  permitted,  there  might  be  no  one 
who  would  be  answerable  for  the  incidents  of  tenure  and  other 
obligations  to  which  the  ownership  of  the  land  might  give  rise.^ 
If,  for  instance,  land  were  given  to  A,  remainder  to  B  and  the 
heirs  of  his  body,  remainder  to  the  heirs  of  A,  and  if  B  died  in 
A's  lifetime  without  leaving  an  heir  of  his  body,  in  whom  could 
the  fee  be  vested  if  it  had  not  vested  from  the  first  in  A?^  It 
may  be  well  that  A  had  no  heirs  living  either  at  the  time  of  the 
gift  or  at  B's  death;  and  it  is  no  answer  to  say  that  in  such  a 
case  A  might  take  for  life  with  a  contingent  remainder  in  favour 
of  his  heirs ;  for,  as  we  shall  see,  it  is  probable  that  the  law  had, 
by  this  time,  decided  against  the  validity  of  contingent  remain- 
ders.^ 

For  these  reasons  the  rule  had  become  established  during  the 
mediaeval  period.  It  was  fully  accepted  in  1568  in  the  case  of 
Brett  V.  Rigden,'^  which  decision  made  it  clear  that  it  applied  not 
only  to  limitations  in  a  deed,  but  also  to  limitations  in  a  will ;  ^ 
and  it  was  stated  in  its  classical  form  in  ShelUys  Case  ^  which  was 
before  the  courts  between  the  years  1579  and  I  581.  Probably 
it  was  the  fact  that  it  made  for  freedom  of  alienation  that  then 
weighed  most  strongly  with  the  judges ;  for  it  was  just  about  that 
time  that  the  courts  were  beginning  their  long  struggle  against 
the  various  devices  employed  by  testators  and  settlors  to  create 
perpetuities.     Of  its  later  history  it  is  not  necessary  to  speak  at 

1  "  The  freehold  must  of  necessity  be  in  some  one,  in  order  that  he  who  has  title 
or  right  to  it  may  know  against  whom  he  ought  to  demand  it,"  Willion  v.  Berkeley 
(1561)  Plowden  at  p.  22^  per  Anthony  Brown,  J, ;  see  also  Y.B,  2,  3  Ed.  II.  (S.S.)  4, 
cited  in  the  next  note  ;  for  the  application  of  this  rule  to  the  limitation  of  estates  in 
possession  and  remainder  see  below  135. 

-Y.B.  2,  3  Ed.  II.  (S.S.)  4  Berefordt  J.,  asked  who,  in  the  case  of  a  Hmitation 
to  the  heirs  of  a  living  person,  was  to  do  the  homage ;  Y.B.  18  Ed.  II.  f.  578,  Stonore, 
C.J.,  says,  in  answer  to  a  contention  that  if  John  had  aliened  without  warranty  his 
heir  could  have  claimed,  "  Donques  le  fee  et  le  droit  apres  la  morte  Walter  fuit  en 
nuUui  personne ;  "  for  the  limitations  in  this  case  see  above  107  n.  5  ;  cp.  Y.BB.  18,  19 
Ed.  III.  (R.S.)  566;  19  Ed.  III.  (R.S.)  102. 

^  Below  134.  ^  Plowden  341. 

5  The  point  actually  decided  was  that  if  A  devises  land  to  B  and  his  heirs,  and 
B  dies  in  the  life  of  A,  B's  heir  takes  nothing ;  the  word  heirs,  it  was  held,  at  p.  345, 
was  merely  a  word  of  limitation  ;  "  it  is  by  no  means  a  just  conclusion,"  it  was  said, 
••  that  because  the  land  should  have  descended  to  the  heir  of  Henry,  that  ergo  the 
heir  of  Henry  shall  take  it  immediately,  in  as  much  as  his  father  died  in  the  life  time 
of  the  devisor ;  for  by  the  same  way  of  reasoning  it  might  be  said,  that  if  Henry  died 
without  heir,  the  lord  should  have  had  the  land  by  escheat,  and  that  the  wife  of 
Henry  shall  have  the  third  part,  because  she  should  have  been  endowed  if  it  had  been 
vested  in  Henry." 

*  I  Co.  Rep.  at  f.  104a,  cited  above  107  n.  3  ;  for  a  full  analysis  and  explanation 
of  the  case  see  Challis,  Real  Property  (3rd  ed.)  154-161. 


ESTATES  IN  POSSESSION  109 

any  length;  for  it  has  been  sketched  by  the  hand  of  a  master.^ 
Though  its  status  as  a  rule  of  law  had  been  clearly  recognized 
throughout  the  seventeenth  century,^  during  the  eighteenth  and 
nineteenth  centuries  doubts  began  to  be  cast  on  it,  and  limitations 
suggested.  The  result  was  that  the  rule,  during  those  centuries, 
gave  rise  to  an  enormous  mass  of  litigation.  The  great  contro- 
versy in  the  eighteenth  century  arose  over  the  case  of  Perrin  v. 
Blake,^  in  which  Lord  Mansfield  and  the  court  of  King's  Bench, 
Yates,  J.,  dissenting,  attempted  to  reduce  the  rule  to  the  level  of 
a  mere  rule  of  construction.  That  decision  was  reversed  by  the 
court  of  Exchequer  Chamber ;  ^  but  it  gave  rise  to  a  discussion  in 
which  Fearne,  Hargrave,  and  Lord  Thurlow  took  part ;  and  it  was 
the  cause  of  quarrels  between  Lord  Mansfield  and  Fearne,  and 
between  Hargrave  and  Lord  Thurlow.^  Notwithstanding  the 
reversal  of  the  decision  in  Perrin  v.  Blake  the  controversy  left 
the  position  of  the  rule  very  uncertain,^  till  its  status  as  a  rule  of 
law  was  finally  restored  by  the  decisions  of  the  House  of  Lords  in 
1820  in  the  case  oi  Jesson  v.  Wright,^  and  in  1 857-1 858  in  the 
case  oi  Roddy  v.  FitzGerald.^ 

The  reasons  why  the  rule  has,  in  these  later  centuries,  given 
rise  to  so  many  doubts  are  somewhat  as  follows  :  Firstly,  the  old 
reason  for  the  rule,  based  on  the  need  for  preserving  the  value  of 
the  incidents  of  tenure,  had  disappeared  in  1 660  ;  and  secondly 
the  more  modern  reason — its  tendency  to  promote  freedom  of 
alienation — had  less  force  at  a  time  when  the  modern  rule  against 
perpetuities  was  practically  settled.  But  rules  for  which  no  reason 
could  be  given  did  not  consort  well  with  the  rationalistic  temper 
of  the  eighteenth  century.  To  many  lawyers  of  the  eighteenth 
century,  "  its  feudal  origin  was  a  disgrace.  Its  antiquity  was  a 
reproach.  Some  judges  thought  that  on  those  grounds  it  ought 
to  be  discountenanced."  ^  Among  these  lawyers  was  Lord  Mans- 
field. We  shall  see  that  Lord  Mansfield,  aided  by  some  of  the 
puisne  judges  of  the  court  of  King's  Bench  who  had  fallen  under 
his  influence,  was  very  desirous  of  reforming  some  of  the  older 
doctrines  of  the  common  law  on  equitable  lines,  in  order  both  to 
bring  them  into  line  with  those  principles  of  general  jurisprudence 

1  Lord  Macnaghten's  judgment  in  Fox  well  v.  Van  Gnitten  [1897]  A.C.  at  pp. 
667-681. 

2 "  I  take  the  rule  in  Shelley's  Case  to  be  a  positive  law  of  which  there  can  no  reason 
be  given,"  Lisle  v.  Grey  (1679)  T.  Raym.  at  p.  319. 

3  (1770)  4  Burr,  2579,  much  more  fully  reported  in  Collect.  Jurid.  i  283-322. 

*  (1772)  I  W.  Blackst.  673  n. ;  for  Blackstone's  famous  judgment  on  this  occa- 
sion see  Harg.,  Law  Tracts  i  490. 

5  [1897]  A.C.  at  p.  670;  for  Fearne's  views  see  his  treatise  on  Contingent  Re- 
mainders (9th  ed.)  168-208. 

"  [1897]  A.C.  at  pp.  671-672.  '2  Bligh  1. 

8  6  H.L.C.  823.  9  [1897]  A.C.  at  p.  669. 


110  THE  LAND  LAW 

with  which  his  studies  in  continental  law  had  made  him  familiar, 
and  to  obviate  the  need  for  going  to  the  court  of  Chancery  for 
relief  against  the  strictness  of  the  law.^  Now  it  was  well  settled 
that  in  interpreting  a  will  the  intention  of  the  testator  was  the 
paramount  consideration ;  and  that  the  rule  in  Shelley's  Case  did 
not  apply  to  executory  trusts.  Partly  because  Lord  Mansfield 
regarded  the  rule  as  an  obsolete  relic  of  feudalism,  partly  because 
he  thought  that  he  ought  to  give  a  weight  to  the  intention  of  the 
testator  which  a  strict  enforcement  of  the  rule  would  have  pre- 
vented,^ and  partly  because  he  thought  that  he  could  thereby  give 
greater  weight  to  equitable  considerations,^  he  treated  the  rule  as 
a  mere  rule  of  construction.  It  followed  that  it  was  inapplicable 
if,  on  the  construction  of  the  whole  will,  it  was  clear  that  its  en- 
forcement would  frustrate  the  intentions  of  the  testator.*  We 
should  note  also  that  it  was  the  more  possible  to  adopt  this  course 
because  the  line  between  rules  which  were  rules  of  law  and  rules 
which  were  merely  rules  of  construction  was  then  by  no  means 
clearly  drawn.  We  shall  see  that,  from  the  sixteenth  century 
onwards,  many  cases  had  been  reported  in  which  the  judges  had 
put  particular  interpretations  on  particular  phrases.  Of  the 
growth  of  this  practice,  and  of  the  advantages  and  disadvantages 
of  thus  accumulating  these  rules  of  interpretation,  I  shall  say 
something  in  a  later  volume.^  Here  it  is  only  necessary  to  remark 
that  it  tended  to  introduce  a  confusion  which  was  not  present 
in  the  mediaeval  common  law,  between  rules  which  were  merely 
rules  of  construction,  and  rules  which,  under  the  guise  of  interpret- 
ing words,  really  laid  down  a  principle  of  substantive  law/ 

1  In  Perrin  v.  Blake,  Collect.  Jurid.  321-322,  Lord  Mansfield  said,  *'  If  courts  of 
law  will  adhere  to  the  mere  letter  of  the  law,  the  great  men  who  preside  in  Chancery 
will  ever  devise  new  ways  to  creep  out  of  the  lines  of  law,  and  temper  with  equity." 

2 "  I  shall  ever  discountenance,  as  much  as  I  can,  anything  which  savours  of 
ancient  strictness  and  policy,  and  when  I  can  possibly  depart  with  justice  from  an  old 
maxim  the  policy  of  which  has  now  ceased,  I  certainly  will.  And  here  I  will  mention 
cursorily,  that  in  Shelley's  case  the  rule  is  confined  to  Done  or  conveyance^  and  there- 
fore by  no  means  applicable  to  a  will.  Wills  have  always  been  liberally  expounded 
to  fulfil  the  testator's  intention,"  per  Willes,  J.,  Collect.  Jurid.  at  pp.  277-278,  in  which 
argument  Lord  Mansfield  concurred,  ibid  at  p.  318. 

3  Above  n.  i. 

4  "  The  legal  intention  (of  the  testator),  when  clearly  explained,  is  to  control  the 
legal  sense  of  a  term  of  art  unwarily  used  by  the  testator,"  Collect.  Jurid.  at  p.  318. 

6  Bk.  iv  Pt.  II.  c.  I  §  II. 

6  Thus  Fearne,  Contingent  Remainders  (gth  ed.)  172,  arguing  for  the  rule  says, 
"  Is  there  anything  impolitic,  anything  harsh  in  deciding  that  the  intention  of  the 
testator  should  never  be  so  far  indulged  as  to  control  all  established  rules  of  con- 
struction ?  "  ;  similarly  Yates,  J.,  in  his  dissenting  judgment,  Collect.  Jurid.  at  pp.  310- 
311,  talks  about  the  rule  in  Shelley's  case  as  a  "  legal  rule  of  construction  ; "  the  true 
view  is  that  if  a  testator  uses  the  expression  '•  heirs  "  or  •*  heirs  of  the  body  "  without 
more,  the  law  says  that  those  words  are  words  of  limitation  and  must  be  so  construed 
even  though  the  testator's  intentions  are  defeated.  It  is  only  if  it  is  clear  from  the  docu- 
ment that  he  is  using  these  expressions  in  another  sense,  e.g.  to  designate  a  particular 
person  or  class,  that  the  rule  does  not  apply,  because  the  word  '•  heirs  "  is  then  used 


ESTATES  IN  POSSESSION  111 

For  all  these  reasons  the  operation  of  the  rule  in  Shelley's 
Case  had  become  obscure  and  its  status  doubtful,  until,  by  the 
decisions  of  the  House  of  Lords  in  the  last  century,  its  original 
meaning  was,  as  we  have  seen,  restored,  and  its  status  as  a  rule 
of  law  put  beyond  question.  But  we  must  return  from  this 
digression  to  the  mediaeval  common  law. 

The  estate  in  fee  simple  conditional  and  the  estate  tail. 

In  the  days  when  the  claims  of  expectant  heirs  fettered  the 
power  to  alienate  land  freely  there  was,  as  we  have  seen,  one  form 
of  gift  which  was  always  permitted.  A  man  could  always  give  a 
maritagium  or  marriage  portion  to  a  woman,  usually  his  daughter 
or  near  relative.^  This  maritagium  was  a  provision  for  the 
woman  and  her  children — a  gift  to  her  and  the  heirs  of  her  body. 
If  she  died  without  children  the  property  reverted  to  the  donor. 
These  gifts  might  be  ordinary  or  free.  In  the  first  case  the 
donee  might  be  bound  to  do  homage  to  the  donor  and  to  perform 
the  forinsec  service  charged  upon  the  land.  In  the  second  case 
the  donee  and  her  issue  were  free  of  all  services  till  there  had  been 
three  descents  from  the  donee ;  ^  and  this,  as  Maitland  points  out, 
gives  to  gifts  in  free  marriage  a  "  tenurial  quality,"  i.e.  those  to 
whom  such  gifts  are  made  hold  by  a  tenure  which  is  peculiar  in 
that  no  services  are  due.  The  ordinary  maritagium  is  a  species 
of  estate :  the  gift  in  liberum  maritagium  is  that  species  of  estate 
held  by  a  peculiar  kind  of  tenure.^ 

In  the  thirteenth  century  these  maritagia  were  generally 
limited  either  to  a  woman  and  the  heirs  of  her  body,  or  to  the 
husband  and  wife  and  the  heirs  of  their  bodies.  ''An  examina- 
tion 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."  * 
We  can  see  also  from  Bracton  that  limitations  to  persons  and 
their  heirs,  provided  that  they  had  an  heir  of  their  body,  were 
also  well  known.  ^  Maitland  thinks  that  these  forms  of  limitation 
were  invented  because  it  was  at  this  time  that  the  tenant  of  land 
in  fee  simple  was  getting  the  power  to  alienate  his  land  without 
consulting  his  heirs.  Settlors  tried  to  fetter  this  freedom  of 
alienation  by  expressly  stating  that  the  land  must  go  to  a  particu- 
lar class  of  heirs.^     These  gifts  were  described  by  the  judges  as 

in  a  non-technical  sense,  see  [1897]  A.C.  at  p.  663  per  Lord  Herschell ;  cp.  Hawkins, 
Wills  (2nd  ed.)  229-231 ;  all  the  cases  of  this  kind  seem  to  be  cases  of  wills. 

^  Above  74  ;  Glanvil  vii  18. 

2  Ibid;  Bracton  f.  21 ;  Y.B.  30,  31  Ed.  I.  (R.S.)  388,  390. 

^  P.  and  M.  ii  16  n.  i.  The  tenant  in  frank  marriage,  unlike  the  tenant  for  life, 
was  not  liable  for  waste,  Y.B.  18,  19  Ed,  III.  (R.S.)  22. 

4  P.  and  M.  ii  16.  <>  Bracton  ff.  18,  i8b,  47. 

8  P.  and  M.  ii  18. 


112  THE  LAND  LAW 

conditional  fees.  It  is  probable  that  such  gifts  so  limited  were  in 
many  cases  taking  the  place  of  the  maritagiurn.  Bracton  speaks 
first  of  these  conditional  gifts  ^  and,  directly  after,  of  the  mari- 
tagium}  The  same  course  is  pursued  by  the  statute  De  Donis ;  ^ 
and  we  shall  see  that  the  incidents  of  these  maritagia  had  some 
influence  upon  the  construction  ultimately  placed  upon  the 
statute.*  In  later  law  the  maritagium  was  regarded  as  a  par- 
ticular species  of  estate  tail.^  It  was  already  taking  this  position 
in  the  thirteenth  century,  for  it  was  regarded  as  a  particular 
species  of  conditional  fee.  The  only  mark  of  its  distinctive 
character  and  of  its  ancient  origin  which  it  retained  in  the  fifteenth 
century  is  to  be  found  in  the  rules  as  to  advancement  and  hotch- 
pot which  were  still  applied  to  gifts  of  these  estates  and  of  these 
estates  alone.  ^ 

If  we  wish  to  understand  the  interpretation  which  was  put 
upon  these  conditional  gifts  in  the  time  of  Bracton  we  must  bear 
in  mind  three  things  : — (i)  The  existence  of  the  gift  in  maritagium  ; 
(2)  the  fact  that  the  words  *' heirs"  or  "heirs  of  the  body"  were 
already  regarded  as  words  of  limitation ;  ^  and  (3)  the  fact  that 
there  was  much  authority  for  the  proposition  that  a  gift  to  a  man 
and  his  heirs  (even  though  the  donee  had  alienated)  would  fail 
upon  the  failure  of  the  donee's  heirs. ^  If  we  remember  these 
three  things  we  shall  see  that  the  manner  in  which  the  different 
kinds  of  conditional  gifts  were  treated  by  Bracton  was  not  wholly 
unreasonable.  We  may  divide  them  from  this  point  of  view  into 
three  classes : — 

(i)  A  gift  to  a  man  and  the  heirs  of  his  body  by  a  particular 
wife  gave  a  life  estate  to  the  donee,  which  expanded  into  an  estate 
of  inheritance  on  the  birth  of  heirs,  and  sank  again  into  a  life 
estate  if  all  the  heirs  predeceased  the  donee.  Whether  alienated 
or  not,  it  reverted  to  the  donor  on  failure  of  this  class  of  heirs. ^ 
We  must  probably  include  in  this  class  gifts  in  maritagium. 

Iff.   17b,   18.  2ff.  20b-23. 

2 13  Edward  I.  c.  i.  *  Below  115. 

5  P.  and  M.  ii  16  n.  i ;  cp.  Y.BB.  5  Ed.  II.  (S.S.)  {1312)  226  per  Bereford,  C.J.; 
17,  18  Ed.  III.  (R.S.)  342. 

6  Vol.  ii  579;  Y.BB.  33-35  Ed.  I.  (R.S.)  290;  5  Ed.  II.  (S.S.)  (1312)  240. 
■^  Bracton  f.  17  ;  Note  Book  case  566  ;  above  75,  106. 

^  Above  106. 

^  f.  17b,  '•  Do  tali  tantam  terram  .  .  .  sibi  et  haeredibus  suis  quos  de  carne  sua 
et  uxore  sibi  desponsata  procreatos  habuerit.  .  .  .  Quo  casu,  cum  certi  hasredes 
exprimantur  in  donatione,  videri  poterit,  quod  tantum  sit  descensus  ad  ipsos  haeredes 
communes  per  modum  in  donatione  appositum.  .  .  .  Et  unde  si  hujusmodi  hseredes 
procreati  fuerint,  ipsi  tantum  vocantur  ad  successionem,  et  si  taliter  feoffatus  aliquem 
ulterius  inde  feoffaverit,  tenet  feofifamentum  et  hasredes  tenentur  ad  warrantiam.  .  .  . 
Si  autem  nuUos  tales  haeredes  habuerit  revertetur  terra  ilia  ,  .  .  et  ita  si  haeredes 
aliquando  extiterint  et  defecerint.  .  .  .  Ubi  nullus  extiterit  semper  erit  res  data  donatorio 
liberum  tenementum  et  non  fcedum  .  .  .  cum  autem  inceperint  habere,  incipit  liberum 
tenementum  esse  foedum,  et  cum  desierint  esse,  desinit  esse  foedum."     Perhaps  this 


ESTATES  IN  POSSESSION  lis 

(ii)  A  gift  to  a  man  and  the  heirs  of  his  body  gave  the  donee 
an  estate  of  inheritance ;  but  on  failure  of  the  heirs  of  his  body 
the  estate  reverted  to  the  donor,  whether  it  was  in  the  hands  of 
the  donee,  an  heir  of  his  body,  or  (probably)  an  alienee.^ 

(iii)  A  gift  to  a  man  and  his  heirs,  provided  that  he  had  an 
heir  of  his  body,  gave  the  donee  a  life  estate  till  an  heir  was  born  ; 
the  birth  of  such  an  heir,  whether  or  no  the  heir  survived,  fulfilled 
the  condition,  and  the  donee  could  alien  as  if  the  estate  had 
originally  been  limited  to  him  and  his  heirs ;  and,  if  he  died 
without  aliening,  the  estate  descended  to  his  heirs  general.^ 

The  forms  in  which  conditional  gifts  were  limited  were  various.^ 
They  were  not  always  clearly  in  accord  with  any  of  these  three 
types.  In  the  result,  the  interpretation  placed  upon  all  gifts  to  a 
man  and  the  heirs  of  his  body  seems  to  have  been  evolved  from  a 
mixture  of  the  principles  which  governed  these  three  classes.  If 
the  donee  never  had  an  heir  of  his  body,  or  if,  having  had  such 
heirs,  they  all  predeceased  him,  and  he  died  without  aliening,  the 
estate  reverted  to  the  donor  in  accordance  with  the  principles 
applied  to  the  first  two  classes.  If,  on  the  other  hand,  an  heir 
was  born  alive  (whether  or  not  he  survived),  the  donee  could  alien 
for  an  estate  in  fee  simple  in  accordance  with  the  principles 
applicable  to  the  third  class ;  and  this  estate,  according  to  the 
newer  law  as  to  the  duration  of  such  an  estate,  did  not  fail  with 
the  failure  of  the  original  donee's  heirs.^ 

The  result  was  a  fixed  rule  of  interpretation  which  constantly 
disappointed  the  intentions  of  settlors.  The  great  landowners 
wanted  such  gifts  to  be  interpreted  in  a  manner  more  in  accordance 
with  their  interests  and  with  the  plain  sense  of  words.     The  aid 

case  and  the  following,  in  which  some  kind  of  reversion  clearly  existed,  account  for 
the  view  that  the  writ  of  formedon  in  reverter,  and  possibly  in  remainder,  existed  at 
common  law,  above  i8. 

^  f.  47,  "  Si  autem  sic  dicatur,  Do  tali  et  haeredibus  suis,  vel  tali  et  haeredibus 
suis  de  corpore  procreatis  .  .  .  statim  erit  perfecta  donatio  et  foedum  donatorio  .  .  . 
ab  initio,  facta  traditione,  sed  resolvitur  sub  tali  conditione,  quae  quidem  tacita  esse 
possit,  sicut  expressa,  et  de  necessitate  revertitur  res  data  ad  donatorem  propter 
defectum  haeredum,  cum  non  extiterint,  vel  si  extiterint  et  defecerint;  "  whether  in 
either  case  the  failure  ot  heirs  or  heirs  of  the  body  would  cause  the  lands  to  be  taken 
from  the  alienee  was  perhaps  not  settled,  above  io6 ;  Bracton's  Note  Book  case  566, 
and  note. 

2  f.  17  ;  f.  47,  *•  Ut  si  dicatur,  Do  tali  et  haeredibus  suis,  si  haeredes  habuerit  de 
corpore  suo,  si  tales  habuerit,  licet  defecerint,  alii  remotiores  vocantur  ad  successionem, 
sed  semper  erit  liberum  tenementum,  et  non  foedum,  quousque  tales  inceperint." 

^  Madox,  Form,  vii,  viii ;  P.  and  M.  ii  18. 

■»  13  Edward  I.  c.  i  preamble;  Y.B.  32,  33  Ed.  I.  (R.S.)  278,  280;  cp.  Willion  v. 
Berkeley  (1562),  Plowden  at  p.  235.  It  was  thought,  in  later  times,  that  if  the  gift 
was  to  a  man  and  a  special  class  of  heirs  (e.g.  heirs  male),  and  an  heir  male  was  born, 
and  predeceased  the  donee,  his  birth  enlarged  the  class  of  heirs  and  made  it  possible 
for  the  land  to  go  to  a  daughter ;  this  was  not  the  law  at  the  time  of  Bracton,  nor  is 
there  much  evidence  that  it  was  ever  law ;  it  really  rests  on  a  strained  construction  of 
the  preamble  of  De  Donis ;  see  P.  and  M.  ii  17  n.  2,  and  cp.  Challis,  Real  Property 
239,  240. 

VOL.  III.— 8 


114  THE  LAND  LAW 

of  the  legislator  was  invoked ;  and  from  this  point  of  view  we  may 
regard  the  statute  De  Bonis  Conditionalibus  (i  285)  as  the  ancestor 
of  the  long  line  of  statutes  passed  to  remedy  a  rigid  rule  of 
judicial  interpretation  which  has  gradually  hardened  into  an 
inconvenient  rule  of  law. 

In  order  that  for  the  future  donees  of  these  conditional  gifts 
should  have  no  power  by  their  alienation  to  deprive  either  their 
issue  or  the  donor  or  his  heirs  of  the  land  so  given,  the  statute 
enacted  that  the  will  of  the  donor  clearly  expressed  in  his  charter 
of  gift  should  be  observed.^  It  then  gave  or  recognized  writs  of 
formedon  in  the  descender  and  writs  of  formedon  in  the  reverter 
to  the  issue  and  to  the  donor  respectively ;  and  as  we  have  seen, 
a  writ  of  formedon  in  the  remainder  was  shortly  after  invented, 
by  analogy  to  the  other  two  writs.^  In  this  way  the  statute  turned 
all  fee  simple  conditional  estates  in  lands  of  free  tenure  into  estates 
tail.  It  applied  to  all  such  estates  ;  but  it  did  not  affect  alienations 
of  such  estates  made  before  the  passing  of  the  statute.^ 

The  literal  words  of  the  statute  would  seem  to  show  that  it 
was  only  the  first  donees  whose  alienation  was  restrained  in  the 
interests  of  either  the  heirs  of  their  body,  or  the  reversioner,  or 
the  remainder-man.*  It  is  true  that  the  word  "  exitus,"  i.e.  '*  issue," 
is  used ;  and  it  is  true  that  in  the  developed  common  law  issue 
means  lineal  descendants  in  infinitum.  But,  if  we  look  at  the 
manner  in  which  the  term  is  used  in  the  statute,  there  is  good 
reason  for  thinking  that  it  must  be  interpreted  as  meaning  issue 
in  the  first  degree  only,  i.e.  the  children  of  the  donee.  Unless 
this  interpretation  is  adopted  we  cannot,  as  Mr.  Holland  has 
pointed  out,  attach  any  meaning  to  the  phrase  ''heir  of  such 
issue."  ^  Under  these  circumstances  it  is  not  surprising  to  find 
that  there  is  evidence  that  many  lawyers  thought  that  the  statute 
should  be  interpreted  so  as  to  restrain  from  alienation  only  the 
original  donees.^     It  is  possible  that  this  interpretation  would  have 

^Vol.  ii  350.  2  Above  17-18. 

3Y.B.  32,  33  Ed.  I.  (R.S.)  278;  but  it  did  affect  the  alienation  of  a  conditional 
gift  when  such  alienation  was  made  after  the  statute,  Y.B.  3,  4  Ed.  II.  (S.S.)  43  per 
Herle. 

^"Ita  quod  non  habeant  illi,  quibus  tenementum  sic  fuit  datum  sub  condicione, 
potestatem  alienandi  tenementum  sic  datum,  quo  minus  ad  exitum  illorum  quibus 
tenementum  sic  fuerit  datum  remaneat  post  eorum  obitum,  vel  ad  donatorem  vel  ad 
ejus  heredem,  si  exitus  deficiat  per  hoc  quod  nullus  sit  exitus  omnino,  vel  si  aliquis 
exitus  fuerit,  per  mortem  deficiet,  herede  hujus  modi  exitus  deficiente,"  13  Edward  I. 
St.  I  c.  i;  on  this  subject  see  Mr.  Bolland's  Introd.  to  Y.B.  5  Ed.  II.  (S.S.)  (1311- 
1312)  xxv-ix;  cp.  Reeves,  H.E.L.  ii  200. 

'^  "  The  '  issue '  of  the  draftsman  of  the  Statute  was  not  the  '  issue  '  of  the  later 
lawyer,  for  to  the  latter  '  the  heir  of  the  issue'  is  just  as  much  and  as  truly  '  issue  of 
the  feoffee '  as  he  to  whom  he  was  heir,  and  the  words  '  heir  of  the  issue '  would  be  a 
meaningless  superfluity;  while,  on  the  other  hand,  if  *  issue '  means  only  issue  in  the 
first  degree,  then  the  expression  '  heir  of  such  issue '  has  a  very  definite  meaning," 
Y.B.  5  Ed.  II.  (S.S.)  (1311-1312)  xxvii. 

6  Y.BB.  5  Ed.  II.  (S.S.)  (1311-1312)  x-jT  per  Scrope  arg.;  5  Ed.  II.  (S.S.)  (1312) 
225  per  Scrope  and  Herle  arg. ;  4  Ed.  III.  Trin.  pi.  4  per  Shardelow  arg. 


ESTATES  IN  POSSESSION  115 

prevailed  but  for  Bereford  C.J. 's  decisions  in  1311-1312  and  131 2, 
that  "he  that  made  the  statute  meant  to  bind  the  issue  in  tail  as 
well  as  the  feoffees  until  the  tail  had  reached  the  fourth  degree ; " 
and  that  as  "  it  was  only  through  negligence  that  he  omitted  to 
insert  express  words  to  that  effect  in  the  statute,"  it  must  be  con- 
strued as  if  those  words  were  inserted.^  It  is  I  think  fairly  clear 
that  Bereford,  C.J.,  considered,  not  altogether  unreasonably,  that 
the  paramount  intention  of  the  legislature  was  to  deal  with  those 
libera  maritagia  which  were  the  occasion  of  the  majority  of  con- 
ditional gifts  ;  ^  and  that,  to  give  effect  to  this  intention,  the  words 
of  the  statute  must  be  extended  to  apply  to  the  donees  and  to 
their  issue  to  the  extent  to  which  the  peculiar  tenurial  quality  of 
a  gift  in  frank  marriage  lasted.^  Until  there  had  been  three 
descents  the  rights  of  the  issue  and  the  donor  must  be  protected. 
After  that  time  their  rights  might  well  be  left  to  the  common  law.^ 
According  to  this  view  the  object  of  the  framers  of  the  statute  was 
to  preserve  the  spirit  of  the  old  law  by  giving  remedies  which 
would  ensure  its  observance  in  accordance  with  the  intentions  of 
donors.  It  was  very  likely  an  interpretation  which  did  carry  out 
that  object.  But,  having  regard  to  the  words  of  the  statute,  it 
was,  according  to  our  modern  notions,  a  most  extraordinary  way 
of  interpreting  it.  It  was  not,  however,  so  extraordinary  in  days 
when  the  judicature,  the  legislature,  and  the  executive  were  not 
so  separate  as  they  afterwards  became ;  and  we  have  seen  that 
other  judges  construed  other  statutes  in  a  similarly  free  manner.^ 
Once  this  construction  had  been  admitted  it  was  not  long 
before  the  judges  refused  to  stop  at  the  fourth  degree,  and  held 
that  all  the  heirs  of  the  body — all  the  issue  in  the  modern  sense 
of  that  term — were  restrained.  We  do  not  know  the  line  of 
reasoning  by  which  this  result  was  reached.  Stonore,  C.J.,  in 
1 33 1  seems  to  have  thought  that  the  statute  restrained  all  the 
line  of  issue  from  alienating  to  the  prejudice  of  the  reversioner 
and  his  heirs;  and  that  therefore  a  fortiori  each  heir  of  the  body 
must  be  restrained  from  doing  anything  to  prejudice  the  rights  of 
his  issue.  ^  It  is  not  quite  clear  how  he  arrived  at  his  major  pre- 
miss— perhaps  the  fact  that  the  statute  refers  to  ''ad  donatorem 

lY.BB.  5  Ed.  II.  (S.S.)  (1311-1312)  177;  5  Ed.  II.  (S.S.)  (1312)  226. 
2Above  111-112.  ^ibid  j-j-j;^ 

•*  Having  regard  to  the  prevalence  of  these  gifts  in  frank  marriage,  probably 

inthony  Browne,  J.,  was  not  far  wrong  when  he  said,  Plowden,  at  p.  247,  that  at 

ommon  law  before  De  Bonis  "  notwithstanding  that  the  donee  had  issue,  yet  the 

^'donor  had  a  right  to  have  the  land  again,  if  the  issue  failed ;  and  so  if  there  were  four 

■descents,  and  the  last  issue  died  without  issue,  the  donor  should  have  had  it  again 

'  )efore  the  statute,  for  the  fee  simple  after  issue  had  was  not  absolute  to  this  purpose." 

5  Vol.  ii  308. 

'  "  Lestatut  restraint  le  poar  le  issue  en  la  tail  daliener  en  prejudice  de  celuy  en  le 
reversion  per  expresse  parol :  donque  a  plus  fort  home  atteindra  son  poar  restraint  en 
prejudice  de  la  tail,"  Y.B.  4  Ed.  III.  Trin.  pi.  4,  cited  Y.B.  5  Ed.  II.  (S.S.)  (1311-1312) 
xxvii  n.  2. 


116  THE  LAND  LAW 

vel  ad  ejus  heredem  "  had  something  to  do  with  it.^  If  we  are 
going  to  give  a  right  to  all  the  heirs  of  the  reversioner,  it  must 
be  given  against  all  the  issue  of  the  donee.  Possibly,  too,  the 
judges  were  the  more  inclined  to  adopt  this  conclusion  by  reason 
of  the  interpretation  which  was  being  placed  on  the  phrase  **  heirs  " 
and  '*  heirs  of  the  body."^  It  had  been  held  in  the  first  years  of 
Edward  II.'s  reign  that  the  heirs  of  the  body  to  whom  the  estate 
tail  was  limited  did  not,  as  the  result  of  the  statute,  take  as  pur- 
chasers.^ The  expression  "  heirs  of  the  body  "  was  just  as  much 
a  word  of  limitation  as  the  word  "heirs."  But  if  a  gift  to  a  man 
and  his  heirs,  or  to  a  man  and  the  heirs  of  his  body,  gave  an 
estate  which  might  go  on  descending  so  long  as  he  had  heirs  or 
heirs  of  his  body ;  and  if  the  statute  had  given  the  heirs  of  the 
body  a  particular  remedy — the  formedon  in  descender — to  recover 
the  land  if  it  was  alienated,  should  not  each  heir  of  the  body  be 
entitled  to  that  remedy? 

However  that  may  be,  this  interpretation  seems  to  have  been 
put  upon  the  statute  early  in  Edward  I  II.'s  reign.^  As  thus  in- 
terpreted it  afforded  a  complete  protection  to  heirs,  remainder-men, 
or  reversioners,  not  only  against  alienation  by  a  tenant  in  tail,  but 
also  against  the  consequences  of  a  forfeiture  or  escheat  incurred 
by  him  for  treason  or  felony.  In  the  following  century  the  vari- 
ous kinds  of  estates  tail  were  gradually  evolved  and  their  inci- 
dents determined.^  The  position  of  the  tenant  in  tail,  who  could 
never  have  issue  of  the  class  designated  in  the  deed  of  gift,  was 
defined  as  a  tenant  in  tail  after  possibility  of  issue  extinct.^ 

The  restrictions  placed  by  the  statute,  as  thus  interpreted,  upon 
tenants  in  tail  were  soon  found  to  be  not  only  irksome,  but  pro- 
ductive of  great  injustice.  Parliament  was  petitioned  for  its 
repeal,  but  these  petitions  were  always  rejected.  "The  truth 
was  that  the  lords  and  commons,  knowing  that  their  estates  tail 
were  not  to  be  forfeited  for  felony  or  treason,  as  their  estates  of 
inheritance  were  before  the  said  Act  .  .  .  and  finding  that  they 
were  not  answerable  for  the  debts  or  incumbrances  of  their  an- 

1  Above  114  n.  4.  2  Above  107-108. 

3  Y.BB.  I,  2  Ed.  II.  (S.S.)  71 ;  3  Ed.  II.  (S.S.)  loi. 

^  Y.B.  4  Ed.  III.  Trin.  pi.  4  ;  it  is  stated  as  a  well-known  principle  in  1346 — Grene 
arg.  says  "  You  see  plainly  how  he  has  confessed  that  J.  was  issue  in  tail  whose  deed 
is  as  much  restrained  by  statute  as  the  deed  of  the  tenant  in  tail  himself,"  Y.B.  20 
Ed.  III.  (R.S.)  ii  202. 

^Challis,  Real  Property,  266,  267;  see  a  discussion  in  Y.B.  18,  19  Ed.  III.  (R.S.) 
194-206  as  to  the  effect  of  a  gift  to  one  and  the  heirs  male  of  his  body  ;  and  see  ibid 
114  for  a  decision  as  to  the  effect  of  a  gift  to  two  persons  and  the  heirs  of  their  bodies 
which  substantially  lays  down  modern  law. 

6Y.BB.  30,  31  Ed.  I.  (R.S.)  46;  17  Ed.  III.  (R.S.)  580.  Such  a  tenant  was  not 
liable  for  waste,  like  a  life  tenant,  though  in  some  other  respects  his  interest  was  simi- 
lar, Y.B.  4  Ed.  II.  (S.S.)  188-189  P^r  Bereford,  C.J. ;  Co.  Litt.  27b,  28;  in  Y.B.  6 
Ed.  II.  (S.S.)  i  82-83  the  question  whether  he  should  vouch  or  pray  aid  is  discussed, 
and  it  was  held  he  must  vouch,  ibid  121. 


ESTATES  IN  POSSESSION  117 

cestors,  nor  did  the  sales,  alienations,  or  leases  of  their  ancestors 
bind  them  for  the  lands  which  were  entailed  to  their  ancestors, 
they  always  rejected  such  bills."  ^  In  default  of  parliamentary 
aid  the  ingenuity  of  the  legal  profession  set  itself  to  work  to 
evade  the  statute. 

The  statute  itself  had  enacted  that  a  fine  levied  of  such  an 
estate  should  be  null  and  void — nothing  therefore  could  be 
effected  by  this  means.^  Nor  was  the  expedient  of  suffering 
judgment  to  go  by  default  in  a  collusive  real  action  any  more 
efficacious.^  It  was  held  that  judgment  in  such  an  action  would 
not  bar  the  issue,  the  reversioner,  or  perhaps  the  remainder-man.^ 
Recourse  was  had  in  the  first  instance  to  the  law  of  warranty.^ 
If  an  ancestor  alienated  lands  and  bound  himself  and  his  heirs  to 
warrant  the  title  of  the  donee,  the  heirs  were  bound  to  fulfil  this 
duty.*^  If,  therefore,  a  tenant  in  tail  alienated  in  fee  with  war- 
ranty, it  would  appear  that  the  issue  would  be  prevented  by  the 
duty  which  had  thus  descended  upon  them  from  claiming  the 
entailed  lands.  But  it  was  decided  in  Edward  I.'s  reign  that 
such  warranty  did  not  bind  the  issue  unless  assets  had  descended 
to  them,^  and  were  in  their  possession  when  judgment  was  given 
on  the  writ  of  formedon.^  This  requirement,  however,  of  assets 
as  a  condition  precedent  to  the  binding  force  of  the  ancestor's 
warranty  only  applied  to  a  lineal  warranty.     It  did  not  apply  to 

^  Mildmay's  Case  (1606),  6  Co.  Rep.  40. 

^  "  No  fine,  please  God,  shall  ever  be  levied  in  respect  of  tenements  held  in  fee 
tail,  for  the  Statute  says  that  if  a  fine,  etc. ;  and  we  will  never  allow  any  fine  which 
we  know  can  be  set  aside,"  the  Eyre  of  Kent  (S.S.)  ii  201  per  Spigurnel,  J. ;  Y.B. 
8  Ed.  II.  (S.S.)  61,  68-6g. 

2  This  expedient  was  used  to  enable  a  tenant  to  convey  his  land  free  from  a  term, 
to  enable  a  husband  to  convey  his  wife's  land,  to  evade  dower,  and  to  evade  the  law 
of  mortmain,  till  the  statutes  6  Edward  I.  c.  11  and  13  Edward  I.  cc.  3,  4,  32 ;  see 
L.Q.R.  vi  285. 

4L.Q.R.  vi  285,  286;  Litt.  §§  688-690. 

^  Above  105-106. 

•^  For  illustrations  of  the  workings  of  this  principle  see  the  Eyre  of  Kent  (S.S.)  ii 
202,  iii  142-143  ;  it  was  held  by  Hereford,  C.J.,  in  1310  that  the  recompense  in  value 
due  from  the  warrantor  was  measured  by  the  state  of  the  tenements  at  the  time  when 
he  entered  into  the  warranty,  so  that  if  they  were  increased  in  value  by  being  built 
on  he  could  not  be  made  liable  to  the  extent  of  the  increased  value,  Y.B.  3,  4  Ed.  II. 
(S.S.)  II. 

7  Y.B.  33-35  Ed.  I.  (R.S.)  386;  cp.  Y.BB.  5  Ed.  II.  (S.S.)  (13 12)  133  fev  Scrope, 
J.;  II,  12  Ed.  III.  (R.S.)  144;  12,  13  Ed.  III.  (R.S.)  144.  As  Reeves  points  out, 
H.E.L.  ii  240,  this  rule  was  probably  an  extension  of  the  provisions  of  the  Statute  of 
Gloucester  (6  Ed.  I.  c.  3),  concerning  the  alienation  of  the  tenant  by  the  curtesy,  to 
the  case  of  the  tenant  in  tail ;  see  5  Ed.  II.  (S.S.)  (1312)  133  where  Scrope,  J.,  refers  to 
^the  statute  in  this  connection. 

« L.Q.R.  vi  285  citing  Mary  Portington's  Case  (1614),  10  Co.  Rep.  38a,  "neither 
the  warranty  without  the  assets,  nor  the  warranty  and  assets  without  judgment  in  a 
formedon,  shall  bar  the  estate  tail ;  for  if  the  issue  (without  judgment  given)  aliens 
the  assets,  his  issue  shall  recover  the  land  in  tail ;  "  but  according  to  Bereford,  C.J.,  it 
would  be  otherwise  if  the  assets  had  been  collusively  alienated,  Y.BB.  4  Ed.  II.  (S.S.) 
67 ;  8  Ed.  II.  (S.S.)  137. 


118  THE  LAND  LAW 

a  collateral  warranty.^  The  latter  species  of  warranty  bound  the 
heir  even  though  no  assets  descended  upon  him ;  and  in  this  way 
the  issue  might  be  barred  provided  that  the  obligation  to  warrant 
descended  upon  them  by  a  line  of  descent  which  differed  from 
the  line  of  descent  by  which  they  traced  their  title  to  the  land. 
The  same  reasoning  always  applied  to  the  case  where  the  obliga- 
tion to  warrant  descended  upon  the  remainder-man  or  reversioner 
as  heir  general  of  the  warrantor ;  in  such  a  case  he  would  be 
prevented  from  claiming  the  land  by  writ  of  formedon.  But  this 
expedient  was  uncertain  in  its  operation ;  and  though  it  might 
sometimes  bar  the  issue,  the  reversioner,  or  the  remainder-man, 
it  did  not  necessarily  have  this  result.  Much  depended  on  the 
manner  in  which  the  obligation  to  warrant  on  the  one  side,  and 
right  to  the  entailed  land  on  the  other,  happened  to  devolve; 
and  this  again  depended  on  the  accidents  of  births  and  deaths.^ 

An  efificacious  method  of  effecting  what  was  desired  was  at 
length  found  in  a  combination  of  the  doctrine  of  warranty  with 
the  use  of  a  collusive  action  to  recover  the  land  A  brought  a 
writ  of  right  against  B,  the  tenant  in  tail ;  B  vouched  C  to 
warranty.  C  accepted  the  duty  of  warranting  the  title,  and  then 
allowed  judgment  to  go  by  default.  The  judgment  was  that  A 
do  recover  the  land  from  B,  and  that  B  do  recover  land  of  equal 
value  from  C.  The  land  if  recovered  from  C  would  have  been 
held  by  B  in  the  same  manner  as  he  held  his  original  estate  tail ; 
and  thus  all  parties  concerned  in  the  limitations  of  the  original 
estate  tail  were  compensated.^  It  is  not  quite  certain  when  this 
expedient  was  first  invented.  Elphinstone  thinks  that  he  has 
come  upon  it  as  early  as  the  Y.B.  of  14  Edward  III. ;  and  the 
report  reads  exactly  like  the  report  of  the  proceedings  in  such  an 
action.^     Certainly  as  early  as  the  first  year  of  Henry  IV.'s  reign 

ly.B.  20  Ed.  III.  (R.S.)  ii  202-204;  as  to  this  distinction  see  L.Q.R.  vi  283. 
Elphinstone  thus  explains  it :  "  Lineal  warranty  is  where  the  warranty  devolves  on 
the  person  to  whom  the  right  to  the  land  passes  as  heir  of  the  warrantor,  so  that  he 
has  the  right  to  the  land  as  heir,  and  is  the  heir  on  whom  the  warranty  descends. 
...  A  collateral  warranty  is  a  warranty  collateral  to  the  title  to  the  land,  and  is 
where  a  man  has  a  right  to  the  land  in  a  different  character  to  that  under  which  the 
warranty  descends  to  him.  For  example,  if  an  elder  brother  tenant  in  tail  discon- 
tinue with  warranty  (i.e.  make  a  feoffment  in  fee  simple  with  warranty)  and  die, 
leaving  his  brother  heir  at  law  and  also  remainder-man  in  tail,  the  warranty  is  col- 
lateral, because  the  brother  is  bound  to  warranty  as  heir  while  he  takes  the  land  as 
purchaser ;  "  for  examples  see  Litt.  §§  716,  718  ;  Kendal  v.  Fox  (1628)  Cro.  Car.  145. 

2  See  L.Q.R.  vi  282,  283  for  an  example. 

s  L.Q.R.  vi  286.  For  the  forms  of  the  common  recovery  in  later  law  see  Clarke, 
Students'  Precedents  in  Conveyancing  Pt.  IL  iii. 

*  Y.B.  14  Ed.  in.  (R.S.)  104,  "  On  a  writ  of  right  the  tenant  vouched  to  war- 
ranty one  who  came  and  warranted  and  afterwards  joined  in  the  mise  on  the  better 
right,  and  afterwards  made  default.  Wherefore  Hillary  adjudged  that  the  demand- 
ant should  recover  against  the  tenant,  to  him  and  his  heirs  for  ever,  quit  of  the 
vouchee  and  of  the  tenant  and  of  their  heirs  for  ever,  and  that  the  tenant  should 
recover  over  to  the  value  against  the  vouchee,  and  that  the  vouchee  should  be  in 


ESTATES  IN  POSSESSION  119 

we  have  a  conveyance  in  tail  which  contains  a  clause  directed 
against  any  attempt  to  interfere  with  the  descent  of  the  entailed 
land ;  ^  Rickhill's  settlement,  which  Littleton  criticizes,  shows  that 
attempts  to  interfere  with  the  course  of  an  entail  by  means  of  an 
alienation  with  warranty  were  well  enough  known  in  Richard  II.'s 
reign  ;  ^  and  in  the  Old  Natura  Brevium  a  process  of  vouching  to 
warranty  seems  to  be  hinted  at  as  a  mode  of  barring  one's  issue. ^ 
It  is  obvious  from  Taltarum's  or,  as  it  should  be  written,  Tal- 
cartas  or  Tolcartis  Case,^  which,  in  spite  of  Coke's  authority,^  is 
sometimes  still  said  to  have  given  rise  to  the  practice,  that  in 
1472  the  common  recovery  was  in  full  working  order.^  The  fact 
that  a  recovery  was  suffered  is  pleaded  as  if  it  were  a  well-known 
expedient/  The  whole  argument  turned  upon  its  effect  under 
the  peculiar  circumstances  of  the  case.  In  Elphinstone's  opinion 
the  effect,  if  any,  of  Taltarum' s  Case  was  to  make  it  clear  that 
there  were  some  cases  in  which  a  recovery  with  a  single  voucher 
did  not  suffice,  and  thus  to  introduce  the  recovery  with  a  double 
voucher  of  later  law.^  But  though  we  may  rightly  conclude  that 
the  practice  of  suffering  recoveries  was  in  full  working  order  in 
1472,  we  can  perhaps  gather  from  Littleton's  book  that  the  re- 
covery was  in  his  day  regarded  rather  as  a  device  for  evading  De 
Donis  ^  than  as  a  "  common  assurance."  ^^     Littleton  cannot  talk, 

mercy,  etc. ;  "  whether  or  not  this  is  the  report  of  a  merely  collusive  action,  it  is 
clear  that  the  process  of  vouching  and  recovery  over  was  well  understood,  so  that  the 
way  was  prepared  for  the  introduction  of  the  common  recovery;  cp.  also  Y.B.  12 
Rich.  II.  xo  per  Rickhill  arg. 

^  Madox,  Form.  no.  736.  2  Ljtt.  §§  720-723  ;  below  135. 

^  f.  146b,  citing  a  case  from  Mich.  7  Rich.  II. 

•*Y.B.  12  Ed.  IV.  Mich.  pi.  25;  for  a  description  of  the  case  and  the  name 
corrected  from  the  roll  see  L.Q.R.  xii  301. 

^Co.  Litt.  361b;  Mary  Portington's  Case  (1614),  10  Co.  Rep.  37b,  cited  L.Q.R. 
vi  287. 

^  Dr.  Sharpe,  Calendar  of  Hustings  Wills  i  xix,  says  that  upon  the  Hustings 
Rolls,  *'  from  the  very  commencement  of  the  reign  of  Edward  IV.,  or  more  than 
ten  years  before  judgment  had  been  given  in  [Taltarum's  Case],  fictitious  recoveries 
were  constantly  enrolled,  and  a  true  recovery  is  only  occasionally  found." 

"^  For  the  pleadings  in  the  case  see  note  at  the  end  of  this  section. 

^  L.Q.R.  vi  287 ;  the  recovery  with  the  single  voucher  has  been  described  above 
118 ;  in  the  simplest  form  of  recovery  with  a  double  voucher,  A,  tenant  in  tail, 
conveyed  the  land  to  B,  the  tenant  to  the  prcEcipe,  i.e.  the  person  made  tenant  for 
the  purpose  of  having  the  writ  praecipe  quod  reddat  brought  against  him.  C,  the 
demandant,  sued  B,  B  vouched  A,  A  vouched  the  common  vouchee;  for  the  reason 
why  a  double  voucher  was  sometimes  needed  see  Winchester's  Case  (1583)  3  Co. 
Rep.  at  f,  5b. 

«See  Y.BB.  21  Hy.  VI.  Hil.  pi.  21;  10  Hy.  VII.  Mich.  pi.  28;  S.C.  11  Hy. 
VII.  Mich.  pi.  25,  and  13  Hy.  VII.  Pasch.  pi.  9  for  discussions  as  to  whether  a  con- 
dition that  tenant  in  tail  should  not  discontinue  was  good ;  in  Y.B.  11  Hy.  VII. 
Mich.  pi.  25  it  was  held  by  all  the  judges  that  such  a  condition  was  good ;  above 
86  n.  3. 

^0  It  is  repeatedly  called^i  common  assurance  by  Coke,  see  Pelham's  Case  (1590) 
I  Co.  Rep.  at  f.  15b ;  Dormer's  Case  (1593)  5  Co.  Rep.  at  f.  40b ;  at  the  same  time 
the  procedural  details  could  not  be  wholly  disregarded,  see  Rowlet's  Case  (1361) 
Dyer  i88a, 


120  THE  LAND  LAW 

as  the  judges  could  talk  in  Elizabeth's  reign,^  of  the  right  of  every 
man  to  bar  his  issue  by  suflferii^  a  recoven* ;  nor  can  he  assert, 
like  a  modem  writer  on  the  law  of  real  propert>%  that  the  capacity 
of  an  estate  tail  to  be  barred  is  one  of  its  most  striking  features. 

It  was  only  by  \-irtue  of  a  statute  of  Henry  VI  I. 's  reign,  a 
strained  construction  erf"  that  statute,  and  a  statute  of  Henr\'  VIIL's 
reign  confirming  that  construction,  that  the  clause  of  De  Donis 
^idiich  declared  that  fines  levied  of  such  estates  should  be  void, 
was  repealed.^  Even  then  a  fine  did  not,  like  a  recovery,  bar  the 
reversioners  and  remainder-men  as  well  as  the  issue:  In  other 
words,  it  turned  the  estate  tail,  not  into  an  estate  in  fee  simple, 
but  into  a  base  fee. 

Estates  for  itfe,  pur  autre  vie,  at  will,  and  at  sufferance? 

We  have  seen  that  it  was  CMily  by  d^^rees  that  tenants  ac- 
quired the  right  to  alienate  their  land  freely.  In  the  days  when 
a  man's  lord  might  daim  to  make  his  heir  "  redeem "  his  land ; 
in  the  da>*s  when  the  claims  of  a  man's  expectant  heirs  were  a 
serious  chedc  upon  his  powers  of  disposition,  it  may  well  have 
seemed  that  an  estate  for  life,  or  something  which  resembled  it, 
was  all  or  almost  all  the  interest  which  any  one  could  have  in  the 
land.  With  the  growth  of  free  powers  of  alienation  both  as 
against  the  lord  and  as  against  the  heir  the  position  of  the  tenant 
for  life  tended  to  change.  He  no  longer  hsid  the  largest  interest 
in  the  land  known  to  the  law.  There  were  others  who  had  exist- 
ing estates  in  reversion  or  remainder.  Older  rules  which  went 
fer  to  put  the  tenant  for  life  into  the  position  of  an  o^^-ner  must 
be  adjusted  to  the  &cts  of  his  new  position.  We  can  see  in  the 
legal  position  of  the  tenant  for  life  abundant  traces  of  the  older 
ideasL  We  can  see  their  modification  chiefly  in  the  development 
of  the  law  as  to  waste. 

From  the  earliest  period  in  our  law  the  rule  has  been  estab- 
lished that  a  gift  to  a  man  simply  gives  him  only  a  life  estate.* 
Perhaps  this  shows  that  at  an  early  period  the  life  estate  i^-as  the 
ordinaiy  or  normal  estate.  At  any  rate  the  tenant  for  life  repre- 
sents the  land  for  all  purposes  of  public  law  and  for  purposes  of 
litigation.  He  must  be  attacked  by  a  claimant  to  the  land  ;  and 
conversely  he  has  a  seisin  which  entitles  him  to  the  protection  of 
the  real  actions.^  Being  thus  seised,  he  enjoys  all  the  advantages 
of  seisin.*     It  will  be  seen  that  this  puts  enormous  powers  into 

1  WiDioo  ▼.  BcdEcley  (1562)  Ftowdcn  at  p.  244. 
«  4  Hcmy  \TL  c  24 ;  I^  3a;  32  Hemy  VIIL  c  36. 

'The  cable  for  life  of  the  faofhand  who  holds  by  the  cvtesyaDd  of  the  wife 
wiio  holds  IB  dower  aie  dealt  with  bdow,  §  9. 


*BtMMmL  27;  Y.R  15  Ed.  IIL  (R.S.)  322. 

'P.  and  M.  ii  9,  la  *  Above  91-92. 


ESTATES  IX  POSSESSION  121 

his  hands.  If  he  is  sued  it  is  no  doubt  his  duty  to  "pray  aid** 
of  the  other  parties  interested  in  the  land ;  but  he  need  not  "  pray 
aid ; "  and  if  the  proceedings  are  collusive  he  will  certainly  not 
do  so.  By  a  collusive  recovery  he  might,  before  1285,  have  de- 
prived a  remainder-man  of  all  remedy,  and  have  driven  the 
reversioner  to  his  writ  of  right  A  clause  in  the  Statute  of  West- 
minster IL  gave  the  reversioner  a  writ  of  entry  in  such  a  case:^ 
As  we  have  seen,  the  law  did  not  directly  diminish  the  advantages 
of  the  person  seised.  The  tenant  for  life  might  still  make  a 
tortious  feoffment ;  but  in  most  cases  the  true  owner  was  given 
an  effective  remedy  against  the  alienee.* 

Already  in  the  days  of  Bracton  it  was  clear  that  the  tenant 
for  life  had  a  better  position  than  ^^-as  warranted  by  the  quantity 
of  his  interest ;  and  we  have  seen  that  by  means  of  the  writ  of 
Prohibition  relief  was  given  in  cases  where  tenants  for  life  or 
other  limited  owners  committed  waste:'  The  number  of  cases  in 
Bracton's  Note  Book  upon  this  topic  shows  that  a  more  d^nite 
ule  was  needed.  Therefore  we  are  not  surprised  to  find  that  it 
as  dealt  with  by  the  Provisions  of  Westminster ;  *  but  the  clause 
eferred  only  to  tenants  for  term  of  yearsw  The  Statute  of  Mari- 
c^orough  (1267)  re-enacted  this  clause  of  the  Provisions  of  West- 
minster, and  forbade  the  firmarius  to  coounit  waste  "  nisi  spedalem 
inde  habuerit  concessionem."  *  Other  cases  were  left  to  the 
common  law.  But  its  rules  were  still  very  indefinite:  Thus  it 
^-as  not  certain  that  the  actioQ  wouki  lie  against  any  tenant  for 
life,  save  the  tenant  in  dower  or  tenant  by  the  curtesy,*  unless  a 
royal  prohibition  against  committing  waste  had  been  directed  to 
the  tenant'  The  Statute  of  Gloucester  (1278)*  laid  down  a 
general  rule,  and  gave  a  new  remedy.  "  It  is  provided,''  runs  the 
statute,  "that  a  man  from  henceforth  shall  have  a  Writ  of  Waste 
in  the  Chancery  against  him  that  holdeth  by  the  law  of  England 
or  othen;^'ise  for  term  of  life  or  for  term  of  years  or  a  woman  in 
dower.  And  he  which  shall  be  attainted  of  waste  shall  lose  the 
thing  that  he  hath  wasted,  and  moreover  shall  recompense  thrice 
so  much  as  the  waste  shall  be  taxed  at"  Another  statute,  how- 
ever, w^as  required  to  make  it  plain  that  this  liability  was  incurred, 

^  13  Edward  L  st.  i  c  3 ;  above  117  n.  3 ;  Lin.  §  481 ;  tbe 
to  the  rrmaindrr-man,  Litt.  loc  dt. ;  Co.  Utt.  28obL 

*  Above  9S-93.  *  VoL  ii  248-249. 
'§  20  (SeL  Ch.  404),  *«Item  firmaiii 

Tenditxnem  Td  cxilhim  non  laciant  de  ' 
aUquibos  ad  tenemenia  quae  ad  fimtn 
habeant  mnccMJontm  per  acii|iturawii  am 
hoc  faccn  pogan*.     £t  si  feccrini,  ct  de  hoc 

*  52  Hcxuy  in.  c  23. 

*  Co.  Litt.  53b,  54a;  Second  Insdt.  145,  299. 

*  BtactoD  £.  315.  *6£dwaxd  Lc  5. 


122  THE  LAND  LAW 

even  though  no  royal  prohibition  had  been  directed  to  the  tenant 
guilty  of  making  waste.^  In  1292  the  right  to  sue  for  waste  was 
extended  to  the  heir  of  the  reversioner ;  ^  and  in  1433  the  penalties 
for  waste  were  extended  to  tenants  for  life  who  held  an  equitable 
estate.^  Magna  Carta  had  provided  that  the  guardian  in  chivalry 
who  wasted  the  land  should  lose  the  wardship/  The  Statute  of 
Gloucester  ^  made  the  writ  of  waste  given  by  the  statute  available 
in  such  a  case.  After  some  hesitation  it  was  held  that  this  writ 
was  not  available  where  a  guardian  in  socage*'  or  a  bailiff^  com- 
mitted waste.  The  proper  remedy  in  these  cases  was  the  action 
of  account 

The  Year  Books  contain  many  decisions  upon  the  effect  of 
these  enactments.^  These  decisions  are  the  basis  of  the  modern 
law  upon  this  subject.  It  was  very  early  settled  that  the  waste 
must  be  committed  by  the  voluntary  act  of  the  tenant.  The  fact 
that  the  damage  had  occurred  accidentally  or  that  it  had  been 
occasioned  by  vis  major  was  a  good  defence ;  ^  and  Bereford, 
C.J.,  once  ruled  that  the  damage  done  must  not  be  too  trivial.^® 
On  similar  principles  it  was  held  in  Edward  III.'s  reign  that  the 
tenant  was  not  liable  for  waste  occasioned,  not  by  his  own  acts, 
but  by  the  defective  condition  of  the  property  demised. ^^  How 
far  the  tenant  was  liable  if  he  simply  permitted  the  premises  to 
decay  was  not  then  and  has  never  yet  been  quite  clearly  settled. ^^ 
The  fact  that  positive  acts  of  destruction  are  usually  alleged 
would  seem  perhaps  to  indicate  that  the  law  was  inclining  to  the 
view  that  he  was  not  liable  for  merely  permissive  waste;  and 
this,  as  we  shall  see,^^  was  in  accordance  with  the  prevailing 
mediaeval  view  that  liability  was  based  on  a  positive  act  contrary 
to  law  which  caused  damage.     It  was,  however,  settled  at   the 

1 13  Edward  I.  st.  i  c.  14. 

2  20  Edward  I.  st.  2.  The  statute  was  made  in  consequence  of  the  doubts  of 
the  judges  upon  this  question ;  the  case  in  which  these  doubts  arose  is  recited  in 
the  statute  by  way  of  preamble. 

3 II  Henry  VI.  c.  5.  ^  {1225)  §  4.  "6  Edward  I.  c.  5. 

6Y.B.  2,  3  Ed.  II.  (S.S.)  35  the  matter  was  treated  as  doubtful;  Y.B.  16  Ed. 
III.  (R.S.)  i  50-54  it  was  held  that  the  proper  remedy  was  account ;  Co.  Litt.  54a. 

'Y.B.  3,  4  Ed.  II.  (S.S.)  136. 

8  For  illustrations  of  the  various  kinds  of  waste  alleged  see  Y.BB.  32,  33  Ed.  I. 
(R.S.)  112;  17,  18  Ed.  III.  (R.S.)  338;  20  Ed.  III.  (R.S.)  i  402-412. 

9  Y.BB.  21,  22  Ed.  I.  (R.S.)  30;  30,  31  Ed.  I.  (R.S.)  480. 

^^  •'  It  would  be  fine  law  were  we  to  rule  the  abatement  of  a  house  worth  twelve 
pence  to  be  waste  in  a  messuage,  and  of  a  couple  of  apple  trees  worth  sixpence  to 
lie  waste  in  a  garden.     We  will  not  do  it,"  Y.B.  5  Ed.  II.  (S.S.)  (1312)  247. 

11  Y.B.  29  Ed.  III.  Pasch.  p.  33. 

12  Y.B.  18  Ed.  III.  (R.S.)  42,  •*  Note  that  Moubray  in  order  to  delay  judgment 
touched  firstly  the  point  that  it  had  not  been  found  that  the  tenants  committed  waste 
.  .  .  and  also  that  in  the  houses  waste  was  not  found,  but  want  of  roofing  " — the 
point  was  not  decided,  as  the  tenant  agreed  to  accept  the  verdict  of  the  jury  finding 
waste. 

13  Below  375-377- 


ESTATES  IN  POSSESSION  123 

end  of  this  period  that  the  tenant  for  years  must  keep  the  pro- 
perty in  repair ;  ^  but  that,  in  the  absence  of  an  express  contract, 
the  tenant  for  life  or  years  was  not  h'able  for  not  rebuilding  a 
house  let  in  a  ruinous  condition.^  We  shall  see  that  Coke  laid 
it  down  that  both  lessees  for  years  and  for  life  were  liable  for 
merely  permissive  waste ;  ^  and  that,  though  his  statement  fixed 
the  law  for  some  time,  later  decisions  have  rendered  the  question 
of  the  liability  of  tenants  for  life  and  years  for  permissive  waste 
somewhat  more  doubtful. 

There  is  a  clear  decision  in  Edward  II I. 's  reign  that  acts  which 
improve  the  value  of  the  property  cannot  be  considered  to  be 
waste — that  there  can  be  no  such  thing  as  "ameliorating  waste."* 
Later  decisions,  however,  make  it  clear  that  acts  which  improve 
the  property  only  from  the  tenant's  point  of  view  may  be  waste 
if  they  injure  the  interest  of  the  reversioner.^  It  is  clear  from 
the  terms  of  the  Statute  of  Marlborough  that  the  landlord  or  the 
reversioner  could  always  permit  waste. *^  From  very  early  times 
there  have  been  tenants  for  life  "without  impeachment  of  waste."  ^ 

The  tenant  for  life  was  entitled  to  take  reasonable  "  botes " 
and  "  estovers  "  without  committing  waste — he  could  cut  under- 
wood for  firing  or  timber  trees  for  the  repair  of  the  house. ^  But 
he  could  not  cut  timber  trees  for  any  other  purpose.^ 

The  tenant  for  life  could  always  alienate  his  estate  for  the 
term  of  his  life.  Thus  was  created  the  Estate  pur  autre  vie}^ 
As  to  the  exact  nature  of  this  estate  the  law  never  quite  made  up 
its  mind.  Even  in  modern  law  it  hovers  uncertainly  upon  the 
borders  of  realty  and  personalty.  In  the  thirteenth  century  it 
was  regarded  as  a  chattel  interest,  like  the  term  of  years. ^^  If 
undisposed  of  by  will  it  reverted  to  the  donor. ^^  In  Edward  I.'s 
day,  however,  it  was  beginning  to  be  regarded  as  a  freehold ;  ^^ 
but  whether  it  was  chattel  real  or  freehold    was  then  an  open 

1  Litt.  §  71. 

2  Y.BB.  22  Hy.  VI.  Mich.  pi.  34 ;  Longo  Quinto  100;  10  Hy.  VII.  Mich.  pi.  3, 
"  Fuit  tenu  per  touts  les  justices,  si  jeo  lesse  une  meason  a  terme  de  vie  ou  d'ans,  si 
la  meason  ne  soit  couvre  al  temps  del  lease  fait,  le  lessee  n'est  tenu  a  ce  couvre ;  et 
aussi  si  la  meason  fuit  ruinous  al  temps  del  lease  fait,  ce  sera  bon  matier  pur  le 
termor  a  ce  mettre  en  un  brief  de  waste." 

3  Bk.  iv  Pt.  II.  c.  I  §  7. 

^Y.B.  14  Ed.  III.  (R.S.)  170;  for  later  rules  see  Maleverer  v.  Spinke  (1538) 
Dyer  at  f.  36b  ;  Co.  Litt.  53a  ;  the  rules  there  laid  down  seem  to  be  the  foundation  of 
the  view  that  acts  which  improve  the  value  of  the  property  may  be  waste. 

»See  Bk.  iv  Pt.  II.  c.  i  §  7.  ^  Above  121. 

7  Y.BB.  12,  13  Ed.  III.  (R.S.)  166;  18,  ig  Ed.  III.  (R.S.)  540. 

8  Y.BB.  II,  12  Ed.  III.  (R.S.)  486;  21  Hy.  VI.  Pasch.  pi.  23. 

»Y.BB.  20,  21  Ed.  I.  (R.S.)  166;  II,  12  Ed.  III.  (R.S.)  446,  448;  20  Ed.  III. 
(R.S.)  i  402-412. 

1"  Madox,  Form.  no.  197. 

11  Bracton  f.  13.  12  \\y^^  26b,  27a. 

13  Hengham,  Parva  c.  5,  cited  P.  and  M.  ii  81  n,  i. 


124  THE  LAND  LAW 

question^ — in  131 3  it  was  said  in  argument  that  "the  law  doth 
not  suffer  a  man  to  make  a  freehold  for  the  term  of  the  life  of 
another."  ^  But  it  would  appear  from  the  annotator  of  Britton  and 
from  the  Old  Tenures  that  it  was  settled  in  the  fourteenth  century 
that  the  tenant  pur  autre  vie  had  a  freehold/  Whether  a  lessor, 
tenant  in  fee,  who  created  such  a  tenancy  could  hold  his  tenant 
liable  for  waste  was  doubted  in  Edward  III.'s  reign. ^  It  was 
settled  when  Littleton  wrote  that  he  was  liable  for  waste. ^ 

Being  freehold  the  estate  could  not  be  devised  ;  and  what  was 
to  happen  if  the  tenant  pur  autre  vie  died  in  the  life  of  the  cestui 
que  vie,  the  lawyers  of  the  fourteenth  and  fifteenth  centuries  could 
not  satisfactorily  decide.  In  1 343  a  fine  was  refused  because  it 
was  so  limited  that  no  provision  was  made  for  this  possible 
contingency;  and  it  was  only  admitted  when  the  heir  of  the 
tenant  pur  autre  vie  was  inserted  in  the  limitation.*^  The  diffi- 
culty was  a  logical  difficulty  which  specially  appealed  to  the 
lawyers  of  this  period.  If  A,  tenant  for  life,  grants  his  life 
estate  to  B  for  his  (A's)  life,  and  if  B  dies  in  the  life  of  A,  who 
will  take  the  land  ?  Not  A,  because  he  has  disposed  of  his  whole 
interest,  and  not  B's  heirs,  both  because  they  have  not  been 
named  and  because  the  estate  is  not  an  estate  of  inheritance. 
The  only  conclusion  we  can  come  to  is  the  conclusion  of  the 
reporter  in  a  Year  Book  of  Henry  VI. 's  reign,  that  the  estate 
**occupanti  conceditur."  ^  The  estate  goes  to  the  first  taker — 
the  general  occupant.  It  was  perhaps  by  analogy  to  this  doctrine 
of  general  occupancy  that  the  title  '*  special  occupant "  was,  at 
the  end  of  the  sixteenth  century,^  applied  to  the  case  where,  the 
grant  being  to  A  and  his  heirs  pur  autre  vie,  A's  heir  succeeds 
on  his  death.  A's  heir  takes,  not  as  heir,  because  the  estate  is 
not  an  estate  of  inheritance,  but  as  occupant.^     Later  statutes, ^^ 

1  Y.B.  2,  3  Ed.  II.  (S.S.)  197.  2  Y  B.  6,  7  Ed.  II.  (S.S.)  196  per  Hedon  arg. 

3  Britton  ii  124  n.  c ;  Old  Tenures  90. 

4  Y.B.  14  Ed.  III.  (R.S.)  158.  5  Litt.  §  57 ;  Co.  Litt.  41b. 

^Y.B.  17,  18  Ed.  III.  (R.S.)  76,  "Humphrey  de  Bassynburne  grants  and 
renders  the  tenements,  etc.,  to  A  and  B  for  the  whole  of  Humphrey's  life,  so  that 
after  Humphrey's  decease  the  tenements  shall  remain  over.  Shardelowe,  J. — The 
fine  must  be  final,  and  limited  in  certain  persons  with  whom  the  land  will  abide : 
and  suppose  the  two  died  during  Humphrey's  life,  who  would  have  the  land  ? 
Thorpe. — The  heirs  of  him  who  should  survive  for  the  time.  .  .  .  And  afterwards 
he  made  the  render  to  the  two,  and  the  heirs  of  one  of  them,  for  the  life  of 
Humphrey." 

7  Y.B.  38  Hy.  VI.  Pasch.  pi.  9 ;  Y.B.  19  Hy.  VI.  Mich.  pi.  49  Paston  seems  to 
regard  it  as  a  freehold  while  the  cestui  que  vie  lives,  but  if  the  tenant  holds  over  it  is 
a  chattel  interest. 

^See  L.Q.R.  xxxii  399,  where  it  is  pointed  out  that  though  the  special  occupant 
was  known  to  Coke,  he  was  not  known  to  Littleton  or  Perkins. 

3  Co.  Litt.  41b;  Challis,  Real  Property  327,  328. 

i"29  Charles  II.  c.  3  §  12;  14  George  II.  c.  20  §  9 ;  i  Victoria  c.  26  §  2  (the 
Wills  Act). 


ESTATES  IN  POSSESSION  125 

which  have  been  passed  to  abolish  the  doctrine  of  general  oc- 
cupancy by  vesting  the  estate  in  the  personal  representative,  have 
given  to  this  estate  its  double  character  in  modern  law.  If  it 
vests  in  them  under  these  statutes  it  is  administered  as  personalty : 
if  it  vests  in  the  heir  as  special  occupant  it  is  administered  as  realty. 

As  we  have  seen,  the  estate  of  the  tenant  at  will  is  recognized 
by  Littleton.^  In  the  thirteenth  century  such  an  interest  in  land 
would  hardly  have  been  classified  as  an  estate.  Most  estates 
held  at  the  will  of  the  lord  were  estates  held  by  unfree  tenure. 
If  there  was  no  question  of  unfree  tenure  it  would  appear 
from  Fleta  that  the  law  regarded  it  as  a  kind  of  servitude 
analogous  to  usufruct  or  habitatio.^  It  is  recognized  as  an 
estate  at  the  end  of  this  period ;  and  it  is  in  connection  with 
this  kind  of  estate  that  Littleton  introduces  the  law  as  to  emble- 
ments. "If  the  lessee  soweth  the  land,  and  the  lessor  after  it  is 
sown,  and  before  the  corn  is  ripe,  put  him  out,  yet  the  lessee  shall 
have  the  corn,  and  shall  have  free  entry,  egress,  and  regress  to 
cut  and  carry  away  the  corn,  because  he  knew  not  at  what  time 
the  lessor*  would  enter  upon  him.  Otherwise  it  is  if  tenant  for 
years,  which  knoweth  the  end  of  his  term,  doth  sow  the  land."^ 
The  principle  of  this  rule  had  been  applied,  as  Coke  said,  and  as 
the  authorities  cited  by  him  show,  to  *'  every  particular  tenant 
that  hath  an  estate  incertain."^  The  statutes  relating  to  waste 
did  not  apply  to  the  tenant  at  will,  but  the  landlord  could  bring 
trespass  if  voluntary  waste  were  committed.^ 

A  tenancy  at  sufferance  arises  where  "  he  that  at  the  first  came 
in  by  lawful  demise  and  after  his  estate  ended  continued  the  pos- 
session and  wrongfully  holdeth  over."^  It  is  not  an  estate,  "for 
in  judgment  of  law  he  hath  but  a  bare  possession."  "  Such  a 
person  is  not  a  disseisor ;  and  a  lessor  could  not  bring  trespass 
against  him  before  he  (the  lessor)  had  entered  on  the  property.^ 
It  was  with  a  view  to  enable  the  landlord  to  recover  his  land  in 
these  circumstances  that  some  of  the  earliest  of  the  writs  of  entry 
were  invented.^ 

1  §§  68-72  ;  vol.  ii  579.  * 

'^B*  15'  3.  *' Ut  si  quis  sine  scripto  concesserit  alicui  habitationem  vel  usum- 
fructum  in  re  sua  tenendi  ad  voluntatem  suam,  haec  quidem  possessio  est  precaria 
et  nuda ;  eo  quod  tempestive  et  intempestive  pro  voluntate  domini  poterit  revocari, 
velut  de  servis  in  villenagio." 

^§68;  the  question  whether  the  termor  had  a  right  to  emblements  was  doubtful 
in  1310-11,  but  opinion  was  inclining  to  the  rule  ultimately  reached,  see  the  reporter's 
note  Y.B.  4  Ed.  II.  (S.S.)  133.  On  similar  principles  the  tenant  at  will  of  a  house 
had  free  entry  to  take  away  his  goods  in  the  house  after  the  end  of  the  tenancy,  Litt. 
§69. 

4  Co.  Litt.  55b;  10  Ass.  pi.  6;  Y.BB.  18,  19  Ed.  III.  (R.S.)  466;  7  Hy.  IV. 
Trin.  pi.  15. 

»  Co.  Litt.  57a  (§  71).  «  Ibid  57b. 

7  Ibid.  8  Ibid.  9  Above  12. 


i 


126  THE  LAND  LAW 

Co-ownership, 

The  law  of  the  fifteenth  century  knew  four  kinds  of  estate 
held  in  co-ownership — joint  tenancy,  coparcenary,  tenancy  by 
entireties,  and  tenancy  in  common.^  Each  has  its  peculiar 
features.  The  estate  of  the  joint  tenant  cannot  be  partitioned 
unless  all  the  joint  tenants  consent.^  They  are  seised  ''per  my 
et  per  tout ; "  so  that  a  writ  against  joint  tenants  will  not  abate 
by  the  death  of  one  of  them ;  ^  and  if  one  joint  tenant  wishes  to 
convey  his  share  to  the  other  or  others  he  must  do  so  by  release. 
The  estate  is  distinguished  by  four  unities — the  joint  tenants  must 
get  their  estate  by  the  same  title,  they  must  begin  to  enjoy  it  at 
the  same  time,  they  must  take  the  same  interest,  they  have  the 
same  possession.  If  one  dies  the  other  or  others  take  by  survivor- 
ship— 'jus  accrescendi  prcefertur  oneribus.  Coparcenary  occurs 
when  several  take  as  co-heirs.  Coparceners  can  compel  partition 
by  an  appropriate  writ  of  partition.  They  convey  to  one 
another  either  by  feoffment  with  livery  of  seisin  or  by  release. 
There  is  no  right  of  survivorship.  Each  coparcener's  share 
descends  to  her  heirs.  Tenancy  by  entireties  can  only  exist 
where  an  estate  is  given  to  husband  and  wife.  During  their 
marriage  husband  and  wife  are  one  person  in  law ;  and  an  estate 
so  given  must  come  to  the  wife  (unless  it  has  been  conveyed 
away  by  fine),  notwithstanding  any  alienation  or  forfeiture  incurred 
by  the  husband.  Tenancy  in  common  is  distinguished  by  unity 
of  possession  only.  ''A  tenancy  in  common,  though  it  is  an 
ownership  only  of  an  undivided  share,  is,  for  all  practical  purposes, 
a  sole  and  several  tenancy  or  ownership;  and  each  tenant  in 
common  stands,  towards  his  own  undivided  share,  in  the  same 
relation  that,  if  he  were  sole  owner  of  the  whole,  he  would  bear 
towards  the  whole.  And  accordingly  one  tenant  in  common 
must  convey  his  share  to  another,  by  some  assurance  which  is 
proper  to  convey  an  undivided  hereditament ;  and  he  cannot  so 
convey  by  release."* 

It  was  only  gradually  that  these  four  distinct  species  of  estate 
were  evolved.  Bracton  recognizes  coparcenary,^  joint  tenancy 
where  the  tenants  are  seised  ''per  my  et  per  tout,"  ^  and  perhaps 

1  Litt.  §§  277-324. 

2  See  Y.B.  ig  Ed.  III.  (R.S.)  12,  14,  for  a  quaint  tale  about  a  partition. 

2  •'  But  in  a  case  of  parcenary  such  a  death  will  abate  the  writ.  And  the  reason  is 
that  in  a  case  of  parcenary  the  estate  of  each  tenant  is  changed  by  the  accretion  of 
his  share  of  the  estate  of  a  parcener  that  dies,  whereas  in  a  case  of  joint  feoffment 
the  estate  of  the  tenant  is  not  changed,  seeing  that  each  of  them  is  tenant  of  the 
whole,"  the  Eyre  of  Kent  (S.S.)  ii  84. 

4  Challis,  Real  Property  336,  337 ;  and  on  the  subject  generally  see  ibid  332- 
346. 

5f.  72. 

6f.  13 ;  Britton  i  232,  233 ;  Y.B.  4  Ed.  II.  (S.S.)  52  per  Bereford,  C.J. 


ESTATES  IN  POSSESSION  127 

tenancy  by  entireties.^  It  is  clear  that  in  his  day  the  incident 
of  survivorship  was  already  a  characteristic  of  joint  tenancy ;  and  it 
had  already  occurred  to  some  that  it  might  be  used  to  defeat  the 
lord's  claim  to  relief  or  wardship.^  It  would  appear  that  Britton 
thought  that  this  incident  was  not  peculiar  to  the  estate  of  the 
joint  tenant.  He  ascribes  it  also  to  the  estate  of  the  coparcener.^ 
But  it  would  appear  that  as  early  as  1 3 1 2  it  was  recognized  that  "  in 
case  of  parcenary,  each  parcener  hath  a  several  right ;  "  '*  and  that 
in  1 340  it  was  recognized  that  the  estate  of  the  coparcener  was 
not  subject  to  the  incident  of  survivorship.^  In  Bracton's  day  it 
had  already  been  distinguished  from  the  estate  of  the  joint  tenant 
by  the  fact  that  each  coparcener  had  the  writ  of  partition,  whereas 
there  could  be  no  partition  between  joint  tenants  without  their 
mutual  consent.^  The  estate  of  the  joint  tenant  has  thus  come 
to  be  distinguished  from  the  estate  of  the  coparcener  by  three 
leading  differences — the  several  rights  of  the  parceners,  survivor- 
ship, and  partition. 

As  early  as  Edward  I.'s  reign  the  distinction  between  joint 
tenancy  and  tenancy  in  common  was  becoming  apparent.^  In 
fact,  it  was  bound  to  emerge  when  a  partition  was  made  and  the 
tenants  continued  to  live  together  on  the  land.  In  1304  it  was 
decided  that  in  such  a  case  there  could  be  no  survivorship — to 
have  decided  otherwise  would  have  prejudiced  the  lord.^  The 
distinction  between  joint  tenancy  and  tenancy  in  common  was 
emphasized  by  Parning  in  1340;^  and  in  1365  Knyvet  said,^^ 
'  If  a  remainder  be  limited  to  two  in  tail,  he  who  survives  will 
have  the  whole  interest  .  .  .  and  the  heirs  will  never  have  several 
actions,  unless  their  titles  begin  from  several  rights;  as  if  two 

1  f.  208,  "  Item  tenementorum  aliud  proprium  et  alicujus  per  se  sine  participe  vel 
sine  adjuncto,  aliud  non  per  se,  sed  cum  adjuncto  et  participe.  Cum  adjuncto,  ut  si 
vir  cum  uxore  .  .  .  qui  non  dicuntur  participes  quia  jura  eorum  et  res  divisionem  non 
accipiunt;  sunt  enim  una  caro,  quamvis  animae  diversae." 

2  P.  and  M.  ii  20  n.  2. 

^  ii  73,  315,  316 ;  at  p.  73  it  is  said  that  there  is  no  inheriting  between  parceners 
— the  share  of  one  accrues  to  the  other  ;  and  this  is  so  even  after  partition  if  one  die 
without  heir  of  the  body.  The  annotator  of  MS.  N  denies  this  and  states  the  later 
rule ;  and  cp.  a  case  of  1304,  below  n.  8. 

^Y.B.  5  Ed.  II.  (S.S.)  13 12,  116  per  Stanton,  J.,  but  see  above  126  n.  3. 
for  the  older  view. 

6Y.BB.  14,  15  Ed.  III.  (R.S.)  34;  cp.  17,  18  Ed.  III.  (R.S.)  174. 
"ff.  72  seqq.,  443b;  Britton  ii  65-73  5  Y.B.  30,  31  Ed.  I.  (R.S.)  324.     The  writ 
of  partition  was  not  extended  to  joint  tenants  till  31  Henry  VIII.  c.  i. 

'  Terms  are  not,  of  course,  used  in  their  later  precise  meaning,  see  Y.B.  2,  3  Ed. 
II.  (S.S.)  144. 

^  Y.B.  32,  33  Ed.  I.  (R.S.)  152,  "  Bereford,  J. — After  the  partition  made  as  you 
say,  cannot  they  again  hold  jointly  as  they  did  before?  Royston. — The  law  does 
not  allow  it ;  it  would  prejudice  the  lord :  for  if  two  persons  enfeoffed  jointly  in  fee 
simple  make  partition  between  them,  one  portion  will  sooner  escheat  to  the  chief  lord 
than  survive  to  the  other  joint  feoffee ;  "  in  Y.B.  6,  7  Ed.  II.  (S.S.)  86  Bereford,  C.J., 
seems  to  have  adhered  to  his  view  which  was  not  the  view  which  prevailed. 

»  Y.B.  14  Ed.  III.  (R.S.)  198,  200.  10  Y.B.  38  Ed.  III.  Mich.  p.  26b. 


128  THE  LAND  LAW 

parceners  alien  certain  land,  reserving  to  themselves  a  certain 
rent,  the  heirs  of  either  will  inherit,  because  their  rights  in  the 
land  are  several  But  when  their  right  is  by  purchase  the  inherit- 
ance will  never  be  several."  It  is  clear  that  the  several  rights  of 
the  tenants  in  common  and  of  coparceners  are  distinct  from  the 
joint  rights  of  joint  tenants. 

We  can  see  from  a  case  of  the  same  reign,  cited  by  Coke,^ 
that  the  distinguishing  characteristic  of  tenancy  by  entireties  was 
known  to  the  law.  Even  the  treason  of  the  husband  did  not  bar 
the  wife's  right  to  the  land. 

By  Edward  Ill's  reign,  therefore,  the  law  had  reached  the  four 
types  of  co-ownership.  All  that  was  wanted  was  the  expression 
of  the  differences  between  these  types  by  apt  terms.  It  may  be 
that  Littleton's  book  had  something  to  do  with  fixing  the  final 
form  of  the  terms  used  to  express  these  different  types. 

Estates  created  to  secure  money  lent ;  tenancies  by  Elegit 
Statute  Merchant^  and  Statute  Staple. 

We  have  seen  that  the  ordinary  common  law  form  of  mortgage 
was  settled  in  its  final  form  when  Littleton  wrote. ^  We  must  now 
trace  the  process  by  which  this  form  was  reached,  and  examine 
the  reason  why  this  particular  form — a  feoffment  defeasible  upon 
condition  subsequent — was  adopted. 

The  giving  of  land  as  a  security  for  a  debt  was  well  known  to 
early  law — we  see  it  in  Domesday  Book ;  ^  and  the  machinery 
adopted  for  effecting  this  purpose  was  very  various.  In  Glanvil's 
day  we  can  lay  down  two  general  rules:  (i)  The  mortgagee  is 
always  in  possession.  A  mere  agreement  that  property  shall  be 
security  for  a  debt  is  not  recognized  by  the  king's  court*  (2) 
The  transaction  might  be  either  mortuum  vadium  or  vivum  vadium. 
In  the  former  case  the  profits  of  the  land  did  not  go  in  reduction 
of  the  debt ;  and,  though  a  creditor  who  made  this  bargain  fell 
into  the  sin  of  usury,  it  was  not  prohibited  by  the  law.  In  the 
latter  case  the  profits  went  in  reduction  of  the  debt,  and  it  was 
considered  to  be  a  fair  and  honourable  bargain.^  Subject  to  these 
two  rules  the  machinery  adopted  by  the  parties  to  carry  out  their 

^  Co.  Litt.  187a  (§  291)  citing  the  case  of  William  Ocle  and  Joan  his  wife  ;  Mich. 
33  Ed.  III.  Coram  Rege  Salop,  in  Thesaur. ;  cp.  Y.B.  39  Hy.  VI.  Hil.  pi.  8  ad 
fin. — a  dictum  of  the  court  which  shows  that  the  estate  was  known  in  its  modern 
shape;  see  Greneley's  Case  {1610)  8  Co.  Rep.  71b. 

2  Vol.  ii  579.  See  on  the  whole  subject  two  articles  by  Professor  Hazeltine, 
H.L.R.  xvii  549,  xviii  36. 

2  P.  and  M.  ii  118  n.  i,  citing  D.B.  ii  137,  141,  217.  *  Glanvil  x  8. 

^  Ibid  X  6  and  8.  Glanvil  and  Littleton  give  different  explanations  of  the  term 
"mortgage;"  according  to  Glanvil  the  gage  is  "dead"  when  its  profits  are  not 
working  off  the  debt  and  interest ;  according  to  Littleton  (§  332)  the  gage  is  "  dead  " 
to  the  debtor  if  the  debt  is  not  paid  to  date  ;  as  we  shall  see,  these  different  explana- 
tions are  suited  to  the  state  of  the  law  at  the  periods  when  they  were  given. 


ESTATES  IN  POSSESSION  129 

intentions  might  vary.  If  the  land  was  conveyed  to  the  creditor  for 
a  fixed  term,  the  parties  might  agree  that,  in  default  of  payment 
on  the  day,  the  land  should  belong  to  the  creditor ;  but,  if  this 
agreement  had  not  been  made,  the  creditor  must,  at  the  fixed  day, 
come  to  the  court,  and  get  an  order  to  pay,  and  a  declaration  that, 
in  default  of  payment,  the  land  should  belong  to  him.^  If  the  land 
was  not  conveyed  to  the  creditor  for  a  fixed  term  he  could  at  any 
time  go  to  the  court  and  get  an  order  to  pay,  and  a  declaration 
that,  in  default  of  payment,  the  land  should  belong  to  him.^  The 
great  defect  of  these  arrangements  from  the  debtor's  point  of  view 
lay  in  the  fact  that  he  lost  possession,  from  the  creditor's  point  of 
view  in  the  fact  that  his  possession  was  not  protected  by  the 
assizes.  If  ejected,  even  by  the  mortgagor,  he  could  not  recover 
the  land.^  It  was  probably  due  chiefly  to  the  latter  cause  that 
the  peculiar  interest  of  the  mortgagee,  as  defined  by  Glanvil,  dis- 
appeared. He  ceased  to  take  a  peculiar  interest  as  mortgagee, 
and  took  instead  some  one  of  the  recognized  estates  or  interests 
in  the  land — a  fee  simple,  a  life  estate,  or  a  term. 

During  the  period  from  the  thirteenth  to  the  fifteenth  century 
we  can  distinguish  three  different  methods  of  effecting  a  mortgage, 
(i)  The  debtor  might  give  the  creditor  a  lease  at  a  nominal 
rent.  The  rents  and  profits  of  the  land  paid  off  the  debt,  and 
provided  interest  for  the  creditor,  without  the  suspicion  of  com- 
mitting the  sin  of  usury.^  (2)  The  debtor  might  convey  the  land 
to  the  creditor  for  a  term  of  years,  with  a  proviso  that  if  the  debt 
be  not  paid  at  the  end  of  the  term  the  creditor  shall  keep  the  land 
in  fee.^  (3)  The  debtor  might  convey  the  land  to  the  creditor  in 
fee,  with  a  proviso  that  if  the  debt  was  paid  by  a  fixed  date  the 
land  should  be  reconveyed ;  ^  and  this  condition  was  strictly  con- 
strued.    Britton  distinctly  denies  that  there  can  be  any  equity  of 

1  Glanvil  x  6,  and  8,  "  Preterea  cum  ad  certum  terminum  res  aliqua  ponatur  in 
vadium,  aut  ita  convenit  inter  creditorem  et  debitorem,  quod  si  ad  terminum  ilium 
vadium  suum  non  acquietaverit  debitor  ipse ;  tunc  vadium  ipsum  remanebit  ipsi 
creditori,  ita  quod  negotium  suum  sicut  de  suo  inde  faciat ; "  if  there  is  no  such 
agreement,  when  the  term  expires  the  creditor  summons  the  debtor,  and,  if  the  debtor 
admits  liability,  *'  precipietur  ei  quod  ad  rationabile  terminum  vadium  ipse  acquietet, 
et  nisi  fecerit,  dabitur  licentia  ipsi  creditori,  de  cetero  negotium  suum  de  vadio  ipso, 
sicut  de  propria  re,  facere  quovis  modo  voluerit." 

2  Ibid.  "  Si  vero  non  ad  aliquem  terminum  sed  sine  termino  res  aliqua  invadia- 
tur,  quocunque  tempore  voluerit  creditor,  debitum  petere  potest." 

^Ibid  X  II,  "Creditor  siquidem  a  seisina  sua  ceciderit  per  debitorem  vel  per 
alium,  nuUam  inde  seisinam  per  curiam  recuperabit,  nee  etiam  per  recognitionem  de 
nova  disseisina." 

^  P.  and  M.  ii  121,  and  Bracton's  Note  Book  cases  50  and  370  there  cited. 

^  Bracton  f.  20 ;  Britton  ii  125,  126  ;  Y.BB.  21,  22  Ed.  I.  (R.S.)  125,  222  ;  6  Ed. 
II.  (S.S.)  i  57  ;  8  Ed.  II.  (S.S.)  35-36  ;  Madox,  Form.  no.  509  ;  12  Ass.  pi.  5  ;  cp.  i. 
2  Ed.  II.  (S.S.)  63  and  n.  The  conveyance  might  possibly  be  for  life,  see  Y.B.  12 
Rich.  II.  ^T  per  Hill  arg.;  or  till  the  day  of  payment,  Y.B.  6  Ed.  II.  (S.S.)  235. 

«  Bracton's  Note  Book  case  458;  Y.BB.  30,  31  Ed.  I.  (R.S.)  210,  266;  8  Ed. 
II.  (S.S.)  37 ;  II,  12  Ed.  III.  (R.S.)  373  ;  13,  14  Ed.  III.  (R.S.)  122, 
VOL.   III.— 9 


130  THE  LAND  LAW 

redemption.^  Both  the  two  last  forms  were  known  to  Littleton ;  ^ 
but  it  is  the  third  form  which  ultimately  prevailed.  It  gained  in 
popularity  from  the  fourteenth  century  onwards ;  ^  and,  when  the 
rules  as  to  the  creation  of  future  estates  in  the  land  became  more 
definitely  fixed,  the  lawyers  began  to  think  that  the  second  form 
of  mortgage,  according  to  which  a  term  of  years  swells  into  a  fee 
by  the  happening  of  an  event,  is  legally  impossible.*  Just  as  the 
rules  of  the  king's  courts  as  to  the  kinds  of  seisin  protected  by  the 
assizes  destroyed  the  twelfth-century  estate  in  mortgage,  so  the 
later  rules  of  the  common  law  as  to  the  modes  in  which  the  estates 
of  which  men  could  be  seised  might  be  manipulated,  limited  to 
one  type  the  interest  of  the  mortgagee.  He  took  an  estate  de- 
feasible upon  condition  subsequent.  His  estate  was,  it  is  true, 
only  a  security  for  money  lent.  This  fact  was  recognized  in 
Edward  II.'s  reign ;  ^  and,  as  we  have  seen,  it  was  recognized  also 
by  Littleton.^  But,  as  a  result  of  the  strictness  with  which  such 
conditions  were  construed,  this  feature  of  his  estate  was  obscured 
till  the  court  of  Chancery  began  to  erect  the  elaborate  super- 
structure of  our  present  law  of  mortgage  upon  the  basis  provided 
by  the  mediaeval  common  law.''  The  narrowness  of  this  basis 
has  necessitated  the  elaboration  of  the  superstructure,  and  has 
caused  the  consequent  complication  of  the  law.  That  the  basis 
was  so  narrow  was  due  in  part  to  the  hasty  generalizations  of  the 
lawyers  of  the  thirteenth  century,  in  part  to  the  technical  doctrines 
of  the  lawyers  of  the  succeeding  three  centuries. 

Before  the  Jews  were  expelled  from  England  ^  a  different  form 

^  ii  128,  •'  And  if  the  plaintiffs  say  that  equity  ought  to  assist  them  on  account  of 
the  smallness  of  the  debt  [i.e.  when  they  have  not  paid  on  the  day],  that  shall  not 
avail  them,  since  every  freeman  may  dispose  of  his  property  at  his  will  without  doing 
any  wrong  to  his  heirs." 

^§§332,349- 

2  This  fact  can  be  illustrated  from  the  forms  of  conveyance  printed  in  Madox, 
Form.  In  1255  (no.  230)  we  have  a  mortgage  of  the  older  type  made  by  a  lease  for 
fifteen  years.  In  Edward  III.'s  reign  the  custom  seems  to  have  been  to  employ  two 
deeds.  A  feoffment  in  fee  was  made ;  and  then  by  another  deed  it  was  agreed 
that  if  the  money  was  paid  within  a  specified  time  the  feoffment  should  be  void  ;  if  it 
was  not  paid  the  land  was  to  belong  to  the  feoffee  and  his  heirs  (nos.  560,  561,  562). 
In  1401  only  one  deed  is  used,  and  the  condition  is  indorsed  on  the  deed  (no.  579). 
19  Hy.  VI.  we  get  a  mortgage  in  the  modern  form  (no.  589). 

^  P.  and  M.  ii  122  ;  formerly  such  arrangements  had  been  common  enough,  both 
for  the  purpose  of  a  mortgage  and  otherwise,  Madox,  Form.  nos.  514,  538  ;  Plessing- 
ton's  Case  (1383)  Bellewe  101-102. 

^  "  When  a  man  pledges  tenements  his  intention  is  not  to  grant  an  estate  of  in- 
heritance, but  to  give  security  for  the  repayment  of  the  money  he  has  borrowed  and 
to  redeem  the  tenements  ;  and  in  such  case,  if  he  repay  the  money  he  can  enter,"  the 
Eyre  of  Kent  (S.S.)  iii  85  per  Spigurnel,  J. ;  for  this  case  see  ibid  Introd.  xxi. 

^  Vol.  ii  579  n.  10. 

'  There  is  an  application  of  a  mortgagor  to  the  Chancellor  as  early  as  1456, 
Select  Cases  in  Chancery  (S.S.)  137-139 ;  for  the  later  equitable  developments  see 
Bk.  iv.  Ft.  I.  cc.  4  and  8. 

5  For  the  position  of  the  Jew  see  vol.  i  45-46. 


ESTATES  IN  POSSESSION  181 

of  mortgage  was  recognized  by  the  Jewish  Exchequer.  "  The 
Jewish  gagee  was  not  always  in  possession,  and  it  seems  possible 
that  under  the  system  of  registration  which  had  been  introduced 
in  Richard's  reign  a  valid  gage  could  be  given  to  him,  though  the 
gagor  never  went  out  of  possession  for  a  moment."  ^  On  default 
he  could  get  possession  of  the  lands,  and,  after  a  year's  possession, 
sell  them  or  hold  them  himself,  or  demise  them  to  another  till  the 
debt  was  paid  out  of  the  rents  and  profits.^  As  Maitland  points 
out,  if  the  Jews  had  not  been  expelled  the  common  law  might 
have  come  by  a  simpler  form  of  mortgage  than  the  conditional 
feoffment.^  However  this  may  be,  it  is  not  improbable  that  the 
legislature  borrowed  some  ideas  from  the  laws  of  the  Jewry  when 
it  gave  the  judgment  creditor  a  right  to  take  possession  of  his 
debtor's  lands  by  a  writ  of  Elegit}  It  was  enacted  in  1285  ^  that 
**  when  debt  is  recovered  or  acknowledged  in  the  king's  court,  or 
damages  awarded,  it  shall  henceforth  be  in  the  election  of  him 
that  sueth  for  such  debt  or  damages  to  have  a  writ  oi  fieri  facias 
unto  the  sheriff  for  to  levy  the  debt  from  the  lands  and  goods  ;  or 
that  the  sheriff  shall  deliver  to  him  all  the  chattels  of  the  debtor 
(saving  only  his  oxen  and  the  beasts  of  his  plough)  and  the  one 
half  his  land  upon  a  reasonable  price  or  extent."  The  creditor 
held  the  land  till  the  debt  was  paid.*^  His  interest  was  a  chattel 
interest ;  ^  but  by  the  express  provision  of  the  statute  he  was 
allowed  to  recover  by  the  assize  of  novel  disseisin.  Another 
statute  of  the  same  year  gave  a  similar  remedy  to  merchant 
creditors.^  The  creditor  could  summon  his  debtor  "before  the 
mayor  of  London  or  before  some  chief  warden  of  a  city  or  of  an- 
other good  town  where  the  king  shall  appoint."  The  debt  being 
acknowledged    before  them,   and  a  time  of  payment   fixed,  the 

^  P.  and  M.  ii  122. 

2  Select  Pleas  of  the  Jewish  Exchequer  (S.S.)  xiii ;  ibid  2  (Charter  of  John) ; 
ibid  100,  loi  (plaintiffs  put  in  seisin  of  lands  gaged  till  debt  be  paid) ;  Calendar  of 
Plea  Rolls  of  the  Exchequer  of  the  Jews  i  158,  173,  227  (cases  of  demise).  These 
practices  led  to  frequent  actions  being  brought  for  account,  see  e.g.  Calendar,  etc. 
17,8. 

3  P.  and  M.  ii  123.  *  Ibid  i  457,  458. 

^  13  Edward  I.  st.  i  c.  18  ;  cp.  a  roll  of  3,  4  Ed.  I.  cited  Madox,  Exch.  i  247,  and 
P.  and  M.  i  458,  to  the  effect  that,  "  according  to  the  assize  and  statutes  of  the  king's 
Jewry,  his  Jews  ought  to  have  one  moiety  of  the  lands,  rents,  and  chattels  of  their 
Christian  debtors  until  they  shall  have  received  their  debts  ;  "  L.Q.R.  xviii  307. 

«Y.B.  30,  31  Ed.  I.  (R.S.)  440;  Y.B.  15  Ed.  III.  (R.S.)  326— a  term  being  a 
chattel  cannot  be  delivered  in  execution  under  this  writ. 

^  Co.  Litt.  43b  ;  and  the  tenants  by  Statute  Merchant  and  Staple  also  had  chattel 
interests,  ibid. ;  Y.B.  2,  3  Ed.  II.  (S.S.)  67,  68  Inge,  J. A.,  "  Properly  speaking  [the 
estate  given  by  the  statute]  is  not  the  freehold,  for  the  creditor  has  nothing  but  a  terra 
of  years,  though  he  holds  in  the  name  of  freehold  by  the  form  of  the  statute  ;  "  but 
note  that  in  1311  Stanton,  J.,  ruled  that  "  holding  by  Statute  Merchant  is  not  holding 
for  a  term  of  years  but  is  frank  tenement,"  Y.B.  4  Ed.  II.  (S.S.)  183 — a  view  which 
was  not  followed. 

8  13  Edward  I.  st.  3. 


132  THE  LAND  LAW 

creditor  could,  if  the  debtor  did  not  pay  at  the  time  so  fixed,  make 
another  application  to  the  court.  The  court  could  then  commit 
the  debtor  to  prison.  Within  three  months  the  debtor  could  sell 
his  land  to  pay  his  debt ;  but  if  at  the  end  of  that  time  it  was  not 
paid,  all  the  lands  and  goods  of  the  debtor  were  delivered  to  the 
creditor.  The  creditor  who  had  thus  got  the  land  was  substanti- 
ally in  the  some  position  as  the  tenant  by  Elegit.^  Similar  pro- 
visions were  made  in  1353  by  the  Statute  of  the  Staple  in  the 
case  of  debts  acknowledged  before  the  staple  court^  These 
remedies  bound  the  land  in  the  case  of  Elegit  from  the  date  of 
judgment ;  in  the  case  of  Statutes  Merchant  and  Staple  from  the 
recognizance.^ 

Estates  in  Expectancy 

The  two  species  of  estates  in  expectancy  known  to  the 
mediaeval  common  law  were  the  reversion  and  the  remainder.* 

The  term  "  revert "  has  been  used  from  the  earliest  times 
both  in  this  country  and  elsewhere  to  signify  what  will  happen 
when  an  estate  for  life  expires.  The  land  revertit  or  redit  to  the 
grantor.  The  natural  contrast  to  revertit  or  redit  is  remanet. 
The  land,  instead  of  returning,  remains  away  from  the  grantor.^ 
We  get,  as  we  have  seen,  the  terms  "  reversion  "  and  "  remainder  " 
in  Edward  I.'s  reign,  and,  somewhat  later,  the  terms  "  reversioner  " 
and  "  remainder-man."  ^  In  later  days  the  derivation  of  the  terms 
"  reversion  "  and  "  remainder  "  became  obscured.  It  came  to  be 
thought  that  these  interests  in  land  were  so  called  because  they 
were  estates  left  over  after  a  smaller  estate  had  been  carved  out 
of  a  greater  estate.  "A  reversion  is  where  the  residue  of  the 
estate  always  doth  continue  in  him  that  made  the  particular 
estate. "'^  A  remainder  is  a  ''remnant  of  an  estate  in  lands  or 
tenements  expectant    upon  a  particular  estate  created    together 

1  For  various  small  differences  between  tenant  by  Elegit  on  the  one  hand,  and 
tenant  by  Statute  Merchant  or  Staple  on  the  other,  see  Y.B.  15  Hy.  VII.  Mich.  pi.  6. 
For  the  forms  see  App.  V. 

2  27  Edward  III.  st.  2  c.  9  ;  for  this  court  see  vol.  i  542-543. 

3  Digby,  History  of  the  Law  of  Real  Property  (4th  ed.)  280,  281. 

^For  rights  of  entry  for  condition  broken,  and  possibilities  of  reverter,  which 
are  future  interests,  but  not  estates  in  the  land,  see  Gray,  Perpetuities  (2nd  ed.) 
6-7 ;  Challis,  Real  Property  (3rd  ed.)  82-84 ;  as  Coke  points  out,  Co.  Litt.  22a-b, 
the  effect  of  De  Donis  was  to  convert  the  possibility  of  reverter,  which  the  donor 
of  a  conditional  fee  had  at  common  law,  into  a  reversion  ;  cp.  Plowden  at  p.  247. 

^  P.  and  M.  ii  21 ;  it  is  there  pointed  out  that  the  term  revertit  is  thus  used  in 
the  A.-S.  land  book;  that  we  find  the  term  remanet  used  in  this  sense  on  the 
Continent;  and  that  the  two  terms  are  contrasted  in  this  way  in  a  passage  of 
Ulpian's  Fragments. 

«Vol.  ii  350,  351. 

''Co.  Litt.  22b;  it  is  clear  from  Wrotesley  v.  Adams  (1558)  Plowden  at 
p.  196  that  the  judges  had  adopted  the  new  definition,  though  they  still  remembered 
the  old. 


ESTATES  IN  EXPECTANCY  133 

with  the  same  at  one  time."  ^  But,  as  Maitland  points  out,- 
**  if  we  look  at  the  documents  of  the  thirteenth  century,  we 
soon  see  that  the  word  renianere  did  not  express  any  such 
notion  of  deduction  or  subtraction.  The  regular  phrase  is  that, 
after  the  death  of  A,  or  if  A  shall  die  without  an  heir  of  his 
body,  then  the  said  land  .  .  .  shall  remain  to  B,  that  is,  shall 
await,  shall  abide  for,  shall  stand  over  for,  shall  continue  for 
B."  The  later  erroneous  derivation  of  these  terms  was  perhaps 
a  natural  consequence  of  regarding  these  future  interests  as 
present  existing  estates  in  the  land.  The  common  law  theory 
of  estates  gave  a  reality — a  corporeal  character — to  that  abstract 
thing,  the  interest  of  the  tenant  in  fee  simple,  and  therefore  to 
the  various  smaller  interests,  whether  in  possession  or  expectancy, 
which  he  could  create  out  of  his  larger  interest.^  The  modern 
definitions  given  by  Challis  ^  of  the  reversion  and  the  remainder 
were  the  definitions  substantially  reached  in  the  fourteenth 
century. 

The  Reversion. 

We  have  seen  that  it  was  not  until  after  the  passing  of  the 
statute  Quia  Emptores  ^  that  the  title  of  the  reversioner  became 
distinct  from  the  title  of  the  lord  who  takes  by  escheat.  After 
the  passing  of  that  statute,  if  a  tenant  in  fee  simple  dies  without 
heirs,  his  land  escheats  to  the  lord  of  whom  it  is  held ;  and  that 
lord  is  not  the  donor  unless  the  tenant  has  taken  the  land  by 
grant  from  the  crown.  If,  on  the  other  hand,  the  interest  of 
a  tenant  for  a  smaller  estate  expires  the  land  reverts  to  the 
donor  who  gave  the  estate,  and  of  whom  the  estate  is  held. 
The  statute  therefore  differentiated  the  reversion  from  the  right 
of  the  lord  to  take  by  escheat,  and  brought  it  clearly  into  view 
as  a  distinct  estate.  The  right  to  escheat  depends  upon  tenure, 
and  upon  tenure  alone — the  land  goes  back  to  the  lord  of  whom 
it  is  held.  This  right  is  not  an  estate — it  is  a  mere  possibility 
that  an  estate  will  arise.  The  reversion  depends  also  on  tenure 
— the  smaller  estate  is  held  of  the  donor ;  but  it  is  more  intimately 
related  to  the  quantum  of  estate  taken  by  the  tenant,  and  it  is 
itself  an  estate  in  the  land.  When  the  tenant's  estate  expires 
the  donor's  estate  in  expectancy  becomes  an  estate  in  possession. 

1  Co.  Litt.  143a.  -  L.Q.R.  vi  25. 

2  Vol.  ii  350-352  ;  cp.  Challis,  Real  Property  73  note,  "  Although  it  would  be 
historically  and  etymologically  incorrect  to  regard  the  word  'remainder  '  as  signifying 
what  is  left  over  when  the  particular  estate  has  been  subtracted,  yet  the  doctrine  of 
the  relative  quantum  of  estates  has  been  now  for  several  centuries  firmly  established 
in  English  law ;  and  it  is  quite  usual  and  not  improper  to  speak  of  a  particular 
estate,  or  several  successive  estates,  as  having  been  carved  or  derived  out  of  an 
original  estate." 

*  Challis,  Real  Property  68.  »  Above  68. 


184  THE  LAND  LAW 

The  Rejfiainder. 

In  modern  law  remainders  are  either  vested  or  contingent. 
The  distinction  between  them  is  clearly  pointed  out  in  Fearne's 
well-known  definition.^  ''It  is  not  the  uncertainty  of  ever 
taking  effect  in  possession  that  makes  a  remainder  contingent ; 
for  to  that  every  remainder  for  life  or  in  tail  is  and  must  be 
liable ;  as  the  remainder-man  may  die,  or  die  without  issue,  before 
the  death  of  the  tenant  for  life.  The  present  capacity  of  taking 
effect  in  possession,  if  the  possession  were  to  become  vacant,  and 
not  the  certainty  that  the  possession  will  become  vacant  before 
the  estate  limited  in  remainder  determines,  universally  distin- 
guishes a  vested  remainder  from  one  that  is  contingent." 

We  have  seen  that  in  the  days  before  the  various  interests 
in  the  land  were  stereotyped  within  the  limits  of  certain  classes 
of  estates,  interests  which  answered  to  the  description  of  the 
contingent  remainder  of  later  law  were  created.'^  As  soon  as 
the  estates  in  the  land  known  to  the  law  became  fixed,  the 
possibility  of  creating  such  contingent  interests  began  to  be 
questioned,  on  the  ground  that,  pending  the  contingency,  there 
was  no  one  in  whom  the  seisin  could  vest.  In  1 304  ^  we  have 
the  following  note :  "  A  man  acknowledged  tenements  to  be 
the  right  of  another  as  that  which  he  had  of  his  gift ;  and  for 
that  acknowledgment  the  other  granted  and  rendered  the  same 
tenements  to  the  aforesaid  man  and  his  wife  to  have  and  to 
hold  to  them  and  to  the  heirs  of  their  bodies  begotten,  and  if 
they  died,  etc.,  that  the  tenements  should  remain  to  the  right 
heirs  of  the  man — this,  however,  is  strange,  seeing  that  the 
remainder  was  not  granted  to  any  certain  person."  In  1304 
the  rule  in  Shelley  s  Case  was  hardly  known.^  By  virtue  of 
that  rule  limitations  of  this  kind  to  the  heirs  of  a  donee  were 
valid,  because  the  gift  was  construed  as  a  gift  to  the  donee, 
and  not  to  his  heirs.  But  we  can  see  that  the  reporter  has 
hit  upon  the  objection  which  will  prove  fatal  to  the  contingent 
remainder.  A  remainder  limited  to  the  heirs  of  a  living  person 
is  contingent  because  till  that  person  dies  his  heirs  cannot  be 
ascertained.  As  we  have  seen,  Stonore,  C.J.,  took  this  point 
in  1324.^  In  1337  a  remainder  to  named  persons  not  in  esse 
at  the  time  of  the  gift  was  assumed  to  be  bad ;  ^  and  cases  of 
Henry  IV.  and  Richard  II.'s  reigns  show  that  this  was  the 
law  of  the  fourteenth  century. "' 

'  Fearne,  Contingent  Remainders  (gth  ed.)  216. 

2  Above  104.  3  Y.B.  32,  33  Ed.  I.  (R.S.)  328. 

^  Above  107,  108.  ^  Above  108  n.  2. 

«  Y.B.  10  Ed.  III.  Mich.  pi.  8  per  Parning. 

■^Y.B.  II  Hy.  IV.  Trin.  pi.  14,  "  Terre  hors  de  ma  personne  ne  puit  my  passer 
in  nubibus  ''per  Thirning  and  Hill ;  Fitz.,  Ab.  Detimie  (P.  2  R.  II.)  pi.  46. 


ESTATES  IN  EXPECTANCY  185 

The  four  sections  of  Littleton's  book  in  which  he  deals  with 
the  reasons  why  a  settlement  made  by  Rickhill,  J.,  in  Richard 
II.'s  reign  could  not  take  effect,  show  that  Littleton  must  have 
regarded  such  remainders  as  invalid.^  Rickhill  had  settled  his 
land  on  his  eldest  son  and  the  heirs  of  his  body,  remainder  in 
default  of  issue  to  his  second  son  and  the  heirs  of  his  body, 
and  similarly  to  his  other  sons  and  the  heirs  of  their  bodies  in 
succession.  Then,  with  a  view  of  preventing  any  interference 
with  this  settlement,  he  provided  that,  if  any  of  his  sons  aliened 
or  made  warranty  to  bar  the  remainders,  their  estate  should 
cease  and  should  remain  to  the  son  next  entitled.^  Littleton 
explains  that  this  settlement  was  invalid  for  three  reasons : 
Firstly,  because  *'  every  remainder  which  beginneth  by  a  deed 
it  behoveth  that  the  remainder  be  in  him  to  whom  the  remainder 
is  entailed  by  force  of  the  same  deed  before  the  livery  of  seisin  is 
made  to  him  which  shall  have  the  freehold,  for  in  such  case  the 
growing  and  being  of  the  remainder  is  by  the  livery  of  seisin 
to  him  that  shall  have  the  freehold,  and  such  remainder  was 
not  to  the  second  son  at  the  time  of  the  livery  of  seisin  in 
the  case  aforesaid."^  Secondly,  because,  to  use  modern  terms, 
it  broke  the  rule  that  a  remainder  must  wait  for  the  regular 
ending  of  the  precedent  estate.  Here  was  an  attempt  to  make 
a  remainder  begin  upon  an  arbitrary  event — a  discontinuance  by 
the  tenant  in  tail ;  upon  an  event,  moreover,  which  gave  the 
discontinuee  a  fee  simple.*  Thirdly,  because  it  was  an  attempt 
to  break  the  rule  that  the  benefit  of  a  condition  or  a  right  of 
entry  can  be  limited  only  to  the  donor  or  his  heirs.  ^  Littleton's 
examination  of  Rickhill's  settlement  was,  as  we  shall  see,  found 
extremely  useful  by  the  courts  when,  during  the  latter  half  of 
the  sixteenth  century,  they  began  their  long  struggle  against 
the  creation  of  perpetuities.  At  this  point  it  is  only  necessary 
to  say  that  it  shows  that,  without  some  modification  of  the  first 
of  the  rules  for  the  limitation  of  estates  which  is  there  stated, 
contingent  remainders  would  have  been  legally  impossible. 

It  was  not  till  Henry  VL's  reign  that  any  relaxation  of  the 
rule  was  allowed.  In  1430^  a  case  is  reported  in  which  the 
subject  is  discussed  ;  and  there  is  an  evident  inclination  to  make 
some  sort  of  relaxation  of  the  strict  rule.  Martin,  J.,  said, 
'*  It  has  been  decided  that  if  land  be  given  to  a  man  for  life, 
the  remainder  to  the  right  heirs  of  one  A  who  is  alive,  and  then 

i§§  720-723.  2  §720.  ^§721. 

*  §  722 ;  for  this  rule  see  Bk.  iv  Pt.  II.  c.  i  §  3  ;  it  really  follows  from  the  third 
rule  which  prohibits  the  limitation  of  a  condition  or  a  right  of  entry  to  a  stranger, 
see  Challis,  Real  Property  (3rd  ed.)  81. 

5§  723  ;  vol.  ii  594.  «  Y.B.  9  Hy.  VI.  Trin.  pi.  19. 


136  THE  LAND  LAW 

A  has  issue  and  dies,  and  then  the  tenant  for  life  dies,  the  heir 
of  the  stranger  (A)  will  have  the  land  ;  and  yet  at  the  time  of 
the  grant  the  remainder  was  in  a  manner  void. — This  was  not 
denied  ;  but  Paston,  J.,  said  that  that  did  not  appear  reasonable. 
Babington. — The  point  is  one  which  is  argued  in  the  moots." 
In  1453,  however,  the  law  was  settled  as  laid  down  by  Martin, 
J.,^  though  Littleton  would  not  have  approved.^  This  decision 
did  not,  of  course,  mean  that  all  contingent  remainders  were 
valid.  It  settled  only  that  a  remainder  to  the  heir  of  a  living 
person  was  valid  if  that  living  person  died  before  the  precedent 
estate  fell  in.  We  shall  see  that  as  late  as  1536  the  court  had 
serious  doubts  about  a  remainder  the  vesting  of  which  was 
dependent  upon  a  contingency  of  another  kind.^  It  is  not 
till  the  following  period,  when  contingent  remainders  became 
firmly  established  in  the  law,  that  the  rules  which  governed 
them  began  to  be  definitely  ascertained.^ 

It  has  been  thought  by  some^  that  a  discussion  in  one  of  the 
Books  of  Assizes,*'  shows  that  in  Edward  III.'s  reign  the  law  had 
not  definitely  decided  against  the  validity  of  contingent  re- 
mainders. But,  in  the  first  place,  the  discussion  is  somewhat  in- 
conclusive,^ and  the  decision  is  opposed  to  the  other  cases  cited 
above.  In  the  second  place,  the  case  turned  upon  the  provisions 
of  a  will  devising  lands  in  Winchester  which  were  devisable  by 
custom.  The  case  of  the  year  1430,^  which  was  also  a  case  of 
devise,  shows  clearly  enough  that  we  cannot  reason  from  the 
limitations  possible  in  a  devise  to  the  limitations  possible  in  a 
deed.  In  that  case  Godred  said,  "  A  devise  is  a  much  stronger 
thing  than  a  grant  by  deed ;  for  if  .  .  .  land  is  leased  by  deed 
to  a  man  for  life,  remainder  over  in  fee,  and  there  is  no  such  man 
in  rerum  natura,  the  remainder  and  all  is  void,  for  debile  fmida- 
mentum,  etc.,  but  if  one  devises  under  similar  circumstances,  the 
remainder  is  good;"  and  Babington  said,  "The  nature  of  a 
devise,  where  lands  are  devisable,  is  such  that  one  can  devise 
that  one's  land  be  sold  by  executors,  and  this  is  good,  as  has 
been  said  before ;  and  the  principle  of  the  law  is  marvellous  ;  but 
it  is  the  nature  of  a  devise,  and  this  form  has  been  used  from  all 
time.     And  thus  one  can  get  a  good  estate  of  freehold  from  him 

1  Fitz.,  Ab.  Feffementes  (H.  32  Hy.  VI.)  pi.  99,  "  Si  terre  soit  done  a  un  home 
en  taille  le  remainder  as  droit  heires  d'un  I  que  est  en  vie,  si  I  devie  devant  le 
donor,  le  remainder  est  bon,  autrement  ntmi^  per  totam  curiam.*^ 

2  Above  135. 

3  Bk.  iv  Pt.  II.  c.  I  §  3.  4  Ibid. 

"  Digby,  History  of  the  Law  of  Real  Property  263  n. 

^  30  Ass.  p.  47  (tr.  Digby  (4th  ed.)  269-271). 

■^  See  the  opinions  of  Finchden  and  Fish. 

8  Y.B,  9  Hy.  VI.  Trin.  pi.  19 ;  above  135  n.  6. 


INCORPOREAL  THINGS 


187 


who  had  none,  just  as  one  gets  fire  from  flint,  and  yet  no  fire  is 
in  the  flint."  ^ 

Note  upon  Taltarum's  Case 

The  pleadings  in  this  case  will  be  found  translated  and  explained  in  Digby's 
History  of  the  Law  of  Real  Property  253-255.  They  are  here  presented  in  a  tabular 
form  in  order  that  they  may  be  more  easily  followed. 


I 


The  defendant s 
pleading. 

T.B.,  seised  in  fee, 

I 
gave  in  tail  to 

W.  Smith ; 

descent  to  son 

Richard ; 

I 
descent  to  son 

J.  Smith 
{the  defendant). 
The  plaintiff  entered  upon 
the  defendant,  claiming  by 
colour  of  a  deed  of  gift 
made  before  the  gift  in  tail 
to  W.  Smith ;  thereupon 
the  defendant  ousted  the 
plaintiff,  and  it  is  for  this 
ouster  that  the  plaintiff 
sues. 


The  plaintiff's 
pleading, 

T.B.,  seised  in  fee, 

I 
gave  m  tail  to 

W.  Smith ; 

who  had  two  sons, 
I 

Humphrey  (i).  Richard  (2). 
H.  entered  as  eldest  son  per 
fortnam  doni ;  against  him 
Taltarum  brought  a  writ  of 
right.  In  that  action  Hum- 
phrey vouched  King  to  war- 
ranty; King  imparled  and 
made  default ;  Taltarum 
therefore  had  judgment 
against  Humphrey  for  the 
land;  and  Humphrey  had 
judgment  against  King  for 
compensation  —  i.e.  Hum- 
phrey suffered  a  recovery ; 
Taltarum  being  seised  of  the 
land  enfeoffed  the  plaintiff. 


The  defendant's 
reply. 

Humphrey,  before  Tal- 
tarum brought  his  action, 
enfeoffed  one  Tregos  in 
fee.  Tregos  gave  the 
lands  to  Humphrey  and 
his  wife  Jane  in  tail,  re- 
mainder to  the  right 
heirs  of  Humphrey. 
Jane  died  without  issue, 
whereby  Humphrey  be- 
came tenant  in  tail  after 
possibility.  While  seised 
of  that  estate  Taltarum 
brought  his  action,  after 
which  Humphrey  still 
remained  seised.  There- 
fore this  recovery  barred 
only  the  tenancy  in  tail 
after  possibility.  There- 
fore, after  Humphrey's 
death,  Richard,  the 
second  son,  entered,  as 
well  he  might. 


The  argument  in  the  case  really  turned  upon  the  question  whether  the  recovery 
suffered  by  Humphrey  in  favour  of  Taltarum  only  barred  Humphrey's  tenancy  in 
tail  after  possibility ;  or  whether  it  could  bar  all  other  estates,  and  confer  the  fee 
simple;  this  was  treated  as  depending  on  the  doctrine  of  remitter  (vol.  ii  587). 


§  7.  Incorporeal  Things 

We  have  seen  that  the  list  of  incorporeal  things  known  to  the 
mediaeval  common  law  was  large ;  ^  and  that  the  law  treated  them 
so  far  as  possible  as  if  they  were  actual  corporeal  things.^  To 
write  a  full  history  of  all  these  things,  even  though  that  history 
were  confined  to  the  mediaeval  period,  would  be  far  too  long  a 
task  to  be  here  attempted.  We  must  leave  on  one  side  the 
offices,  the  franchises,  the  seignories,  and  the  tithes,  in  favour  of 
the  advowsons,  the  commons,  the  rents,  and  the  easements,  be- 
cause they  hold  and  long  have  held  a  much  more  important  place 

^  This  is  used  as  a  metaphor  simply.  It  is  not  used  as  the  doctrine  of  scintilla 
juris  was  used  in  later  law  as  a  serious  legal  doctrine.  The  contrast  illustrates  what 
I  have  said,  vol.  ii  589-590,  as  to  the  difference  between  the  mediaeval  and  the  later 
doctrines  of  the  law  of  real  property. 

2  Vol.  ii  355-356.  3  Above  97-101. 


lad  THE  LAND  LAW 

in  English  law.  For  the  same  reason  I  shall  deal  with  certain 
covenants  which  have  a  peculiar  relation  to  the  land  law.  They 
are  not  incorporeal  things,  but  they  have  some  of  the  qualities 
of  incorporeal  things;  and  some  principles  borrowed  from  this 
branch  of  the  law  have  been  applied  to  them.  Lastly,  I  shall 
deal  with  a  topic  peculiar  to  some  of  these  incorporeal  things — 
the  topic  of  prescription.  I  shall  deal,  therefore,  firstly  with  the 
four  classes  of  incorporeal  things  mentioned  above  ;  secondly  with 
certain  covenants  annexed  to  the  land ;  and  thirdly  with  pre- 
scription. 

AdvowsonSy  Commons ^  Rents y  and  Easements 

Advowsons. 

**  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  unless  he  can  show  one  of 
some  few  good  causes  for  refusing  to  do  so."  ^  The  law  as  to 
advowsons  is  part  of  \hQJus  patronatus  of  the  canon  law ;  ^  and 
the  general  idea  of  an  advowson  is  therefore  derived  from  that 
law.  But,  in  England  as  abroad,^  it  is  intimately  related  to  the 
land  law.  We  have  seen  that  on  that  account  the  title  to  and 
possessory  rights  in  an  advowson  were  matters  which  fell  within 
the  jurisdiction  of  the  royal  courts,  and  that  they  were  protected 
by  appropriate  real  actions — the  writ  of  right  of  advowson,  the 
assize  of  darrein  presentment,  and  the  quare  impedit.^  We  shall 
see  that,  for  many  different  reasons,  disputes  as  to  the  title  to  and 
the  possession  of  advowsons,  and  as  to  many  other  matters  relat- 
ing to  them,  gave  rise  in  the  Middle  Ages  to  an  enormous  mass 
of  litigation.  But  into  the  details  of  the  many  rules  which  were 
established  as  the  result  of  this  litigation  it  would  be  both  useless 
and  tedious  to  enter.  The  chief  service  that  this  large  amount  of 
litigation  did  for  English  law  was  the  elucidation  of  the  nature  of 
an  incorporeal  thing ;  and  that  it  was  able  to  perform  this  service 
was  largely  due  to  the  fact  that  English  law,  like  the  law  of  the 
other  countries  of  Western  Europe,  had  accepted  the  main  con- 
clusion of  the  canon  law  as  to  the  nature  of  the  right  of  patron- 
age.^ But  in  order  to  explain  this  it  will  be  necessary  to  say  a 
few  words  as  to  the  origin  of  the  advowson.  It  will  then  be 
possible  to  indicate  the  manner  in  which  this  species  of  property 

^  P.  and  M.  ii  135. 

^Fhillimore,  Ecclesiastical  Law  (ist  ed.)  i  329,  330. 
^Esmein,  Droit  Fran9ais  (nth  ed.)  177-178.  • 

*  Above  24-25. 

^  Thus  Fleta  5.  14.  6,  cites  the  decree  of  the  Lateran  Council  as  to  the  Bishop's 
right  to  present  if  the  living  be  not  filled  up  within  six  months. 


ADVOWSONS  139 

was  dealt  with  by  the  mediaeval  common  law,  and  to  see  more 
clearly  why,  in  the  Middle  Ages  and  later,  it  gave  rise  to  so  large 
an  amount  of  litigation. 

Blackstone's  account  of  the  word  **advowson,"  and  of  the 
origin  of  the  right  of  patronage,  which  is  conferred  by  it,  in  sub- 
stance represents  the  final  stage  which  had  been  reached  by  the 
canon  law  in  the  latter  part  of  the  twelfth  century.  *' Advowson, 
advocatiol'  he  says,^  "  signifies  in  clientelam  recipere,  the  taking 
into  protection ;  and  therefore  is  synonymous  with  patronage, 
patronatus :  and  he  who  has  the  right  of  advowson  is  called  the 
patron  of  the  church.  For,  when  lords  of  manors  first  built 
churches  on  their  own  demesnes  .  .  .  the  lord  who  thus  built  a 
church,  and  endowed  it  with  glebe  or  land,  had  of  common  right 
a  power  annexed  of  nominating  such  minister  as  he  pleased  (pro- 
vided he  were  canonically  qualified)  to  officiate  in  that  church  of 
which  he  was  the  founder,  endower,  maintainer,  or,  in  one  word, 
the  patron."  This  right  of  patronage,  which  had  thus  come  to 
be  recognized  by  the  canon  law  of  the  twelfth  century,  was  the 
product  of  an  historical  development.  During  the  dark  ages 
which  followed  on  the  overthrow  of  the  Roman  Empire  landowners 
of  all  kinds,  lay  and  ecclesiastical,  had  put  forward  claims  to  be 
the  owners  of  churches.  In  fact  these  churches  had  come  to  be 
regarded  as  things  attached  to  the  land,  which  could  be  disposed 
of  by  the  landowner,  just  as  he  disposed  of  other  rights  connected 
with  the  land.^  All  that  the  church  could  do  was  to  take  pre- 
cautions that  fitting  clerks  should  be  presented,  and  that  they 
should  be  given  a  sufficient  income.^  It  was  not  till  the  pontifi- 
cate of  Alexander  III.  (1159-1181)  that  it  was  recognized  that 
the  landowner  was  not  the  owner,  but  the  patron  of  the  church — 
that  what  he  owned  was  not  the  church  but  the  incorporeal  right 
of  patronage.^ 

^Bl.  Comm.  ii  21  ;  cp.  Co.  Litt.  119b,  "  Advowson,  ^^T/Ofrt^io,  so  called  because 
the  right  of  presenting  to  the  church  was  first  gained  by  such  as  were  founders,  bene- 
factors, or  maintainers  of  the  church:  viz.  ratione fnndationis,  as  when  the  ancestor 
was  founder  of  the  church ;  or  ratione  donationis,  when  he  endowed  the  church  ;  or 
ratione  fundi,  as  when  he  gave  the  soil  whereupon  the  church  was  built :  and  there- 
fore they  were  called  Advocati.  They  were  also  called  Patroni,  and  therefore  the 
Advowson  is  called  j^ns  Patronatus ;"  Fleta  5.  14.  2;  Esmein,  Droit  Fran^ais  177. 

2 «» Beacoup  de  particuliers,  grands  propri^taires  et  seigneurs  en  puissance,  se 
pretendaient  propri^taires  des  chapelles  et  des  eglises  .  .  .  leur  pretention,  reconnue 
et  consolid^e  par  la  coutume,  r^sultait  de  cette  tendance  qui  portait  alors  les  hommes 
a  considdrer  tous  choses  sous  leur  aspect  material  et  pecuniarement  profitable. 
Les  etablissements  eccl^siastiques,  convents  et  ^vech^s,  revendiquaient  cette  propriete 
et  en  tiraient  profit,  aussi  bien  que  les  laics.  .  .  .  Dans  le  desordre  de  la  monarchic 
franque,  ces  pretentions  s'accentuerent  et  triumpherent.  Cela  aboutit  k  une  th^orie 
assez  nette :  I'^glise  envisag^e  sous  son  aspect  material,  etait  un  d^pendance  du 
sol;  .  .  .  naturellement  le  seigneur  disposait  de  I'eglise  k  sa  volont^,  comma  il 
pouvait  disposer  du  sol,  I'un  emportait  I'autre  et,  tous  les  modes  de  succession  et 
d'alienation  lui  dtaient  applicables,"  Esmein,  op.  cit.  177. 

3  Ibid  178.  4  Ibid. 


140  THE  LAND  LAW 

But  the  older  ideas  died  hard.  In  England  the  common  law 
administered  by  the  king's  courts,  often  represented  a  com- 
paratively primitive  order  of  legal  ideas ;  and  these  primitive  legal 
ideas  tended  to  become  stereotyped  when,  at  the  end  of  the 
thirteenth  century,  the  influence  of  the  civil  and  canon  law  ceased 
to  be  felt^  We  can  see  an  illustration  of  the  conflict  between  the 
older  and  the  newer  ideas  as  to  the  nature  of  the  advowson  in 
Bracton's  treatise.  He  tells  us  that  laymen  commonly  confused 
the  ownership  of  the  church  and  the  right  of  patronage.  These  two 
things  were,  as  he  points  out,  quite  distinct.  The  gift  of  a  church 
did  not  properly  convey  the  right  to  present.  If  it  was  desired 
to  give  the  right  to  present,  what  should  be  given  was,  not  the 
church,  but  the  advowson.^  "  Nevertheless,"  he  says,^  ''  the  gift  of 
a  church  is  by  custom  and  use  differently  interpreted  and  under- 
stood. For  instance,  if  a  man  says  I  give  such  a  church  to  such 
a  monastery,  when  he  should  have  mentioned  in  his  gift  the 
advowson,  this  gift  will  be  sufficient  to  transfer  the  advowson ; 
and,  on  account  of  the  simplicity  of  the  lay  folk,  it  is  interpreted 
as  if  the  layman  gives  by  these  words  all  the  right  which  he  had 
in  the  church,  that  is  to  say  the  advowson  together  with  the 
church."  The  native  development  of  English  law  made  for  the 
perdurance  of  these  ideas.  And  so  we  see  that,  like  other  rights 
annexed  to  the  land,  the  advowson  is  treated  both  by  the  adjec- 
tive and  the  substantive  law  as  if  it  were  a  piece  of  land.  The 
actions  by  which  it  is  protected,^  the  manner  in  which  it  is  con- 
veyed and  in  which  the  doctrines  of  seisin  and  disseisin  are  applied 
to  it,^  the  mode  in  which  it  will  devolve  on  death  ^ — all  follow 
the  rules  as  to  corporeal  hereditaments.''  If  we  consider  the 
manifold  complications  both  of  the  procedure  in  the  real  actions, 
and  of  the  substantive  doctrines  of  the  mediaeval  land  law ;  if  we 
remember  that  the  advowson  and  the  many  questions  centering 
round  it  stood  on  the  frontier  of  the  lay  and  ecclesiastical  jurisdic- 
tions,^ and  that  the  exercise  of  the  right  of  presentation  involved, 

1  Vol.  ii  287.  2  f^  ^3a. 

3  *'  Habet  tamen  hujus  modi  donatio  ex  consutudine  et  ab  usu  aliam  interpreta- 
tionem  et  alium  intellectum,  ut  si  dicat  quis,  Do  talem  ecclesiam  talibus  viris 
religiosis,  ubi  mentionem  facere  debet  de  advocatione,  sufficit  donatio  talis,  quantum 
ad  jus  advocationis  transferendum,  et  propter  simplicitatem  laicorum  interpretatur, 
quod  laicus  per  haec  verba  dat  quicquid  juris  habuit  in  ecclesia  ilia,  id  est  jus 
advocationis,  simul  cum  ecclesia  ilia,"  ibid ;  Bracton's  Note  Book  case  141 8  ;  P. 
and  M.  ii  135. 

•*  Above  24-25. 

5  Above  98,  100  ;  Bracton  f.  243b ;  Co.  Litt.  307a. 

"  Thus  it  descends  to  daughters  as  coparceners  who  present  in  turn  according  to 
age,  beginning  from  the  eldest;  cp.  Y.B.  6  Ed.  II.  (S.S.)  6i per  Bereford,  C.J. ;  Co. 
Litt.  i8a. 

'  "  An  Advowson  wherein  a  man  has  as  absolute  ownership  and  property  as  he 
hath  in  lands  or  rents,"  Co.  Litt.  17b. 

^  "  Jurisdiction  in  matters  of  patronage  belongeth  to  this  court,  but  jurisdiction  as 
to  parsonage  belongeth  to  Court  Christian ;  and  no  matter  how  he  acquired  posses- 


ADVOWSONS  141 

in  most  cases,  the  action  of  the  bishop  as  well  as  of  the  patron ;  ^ 
if  we  bear  in  mind  that  the  king  was  the  owner  of  many  advow- 
sons  and  had  peculiar  prerogatives  in  relation  to  them  ;  if  we 
recall  the  fact  that  wealthy  monasteries  ^  and  large  landowners 
were  also  the  owners  of  many  more ;  and  if  we  remember  that 
there  had  been  much  legislation  on  the  subject  of  advowsons  ^ — 
we  shall  not  be  surprised  at  the  enormous  mass  of  litigation  to 
which  in  this  litigious  age,  the  advowson  gave  rise.  As  the 
result  of  this  litigation  the  rules  relating  to  it  were  developed 
with  such  minuteness  that  little  was  left  to  be  added  by  the 
lawyers  of  a  later  age. 

From  the  point  of  view  of  the  history  of  English  law  the  main 
interest  of  this  development  of  the  law  as  to  advowsons  is,  as  I 
have  said,  the  impetus  which  it  gave  to  the  elucidation  of  the 
nature  and,  to  some  extent,  of  the  classification  of  incorporeal 
things.  The  canon  law  had  made  it  perfectly  clear  that  the  right 
of  patronage — the  advowson — was  an  incorporeal  right  quite  dis- 
tinct from  the  ownership  of  a  corporeal  church.  No  doubt,  as 
we  have  seen,  the  mediaeval  common  lawyers  made  this  incor- 
poreal right  as  much  as  possible  like  the  right  to  corporeal  land. 
No  doubt  Bracton  has  great  difficulty  in  fitting  the  conception  of 
this  incorporeal  right  on  to  the  very  materialistic  rules  of  English 
law.  If  a  view  is  demanded  in  a  writ  of  right  of  advowson,  how 
can  it  be  given  of  an  intangible  right?*  How  can  such  a  right 
be  taken  into  the  king's  hands  ?  ^  But,  for  all  that,  there  can  be 
little  doubt  that  the  analysis  of  the  nature  of  an  incorporeal  thing 
which  at  different  points  in  his  treatise  Bracton  gives  in  connec- 
tion with  advowsons,^  greatly  helped  English  lawyers  to  grasp 

sion,  we  cannot  oust  him,  for  we  cannot  determine  whether  he  be  the  right  parson  or 
not,"  Y.B.  5  Ed.  II.  (S.S.)  170  per  Bereford,  C.J. ;  for  the  history  of  the  manner  in 
which  jurisdiction  over  the  question  of  the  plenarty  or  voidance  of  a  benefice  came  to 
be  divided  between  the  temporal  and  ecclesiastical  courts  see  T.  F.  T.  Plucknett, 
Camb.  Law  Journal  no.  i  60-75. 

1  Unless  the  advowson  was  coUative  or  donative,  Co.  Litt.  1 19b,  344a ;  Philli- 
more,  Ecclesiastical  Law  i  331-332. 

2  The  fact  that  these  monasteries  were  aliens,  and  sometimes  alien  enemies,  also 
gave  rise  to  litigation,  see  Y.B.  17,  18  Ed.  III.  (R.S.)  266-278. 

3  For  a  case  turning  on  the  Stat,  of  West.  II.  c.  5  see  Y.B.  6  Ed.  II.  (S.S.)  48 
seqq. ;  for  cases  turning  on  the  statute  14  Edward  III.  st.  4  c.  2  see  Y.B.  15  Ed. 
III.  (R.S.)  262-264. 

^  *'  Et  quamvis  hujusmodi  jura  videri  non  possunt  cum  sint  invisibilia,  nee  palpari 
sicut  corpora,  tamen  cum  sine  corpore  vel  subjecto  quibus  insunt  esse  non  possunt, 
res  illae  videri  possunt  et  palpari,  et  unde  sufficit  pro  visu  quod  res  corporatae  in  qui- 
bus jura  consistunt  designentur,  vel  per  visum  vel  per  quod  tantumdem  valet," 
Bracton,  flf.  377b,  378a. 

'  '*  Sed  cum  jus  advocationis  ecclesiae  incorporate  sit,  et  per  defaltam  tenentis 
aliquando  praecipiatur  vicecomiti  quod  ilium  capiat  in  manum  domini  regis  .  .  . 
qualiter  potest  in  manum  domini  regis  capi,  quod  videtur  impossibile  ?  "  the  answer 
is  "  dicetur  vicecomiti  quod  capiat  ecclesiam  in  manum  domini  regis  simplici  capcione, 
et  per  consequens  capit  id  quod  inest  corpori,"  ibid  ff.  378a,  378b. 

"  See  f.  53b,  and  the  last  two  notes. 


142  THE  LAND  LAW 

the  meaning  of  an  incorporeal  thing.  Thus  we  have  seen  that  in 
.1334  Herle's  statement  shows  that  the  distinction  between  the 
gift  of  a  church  and  the  gift  of  an  advowson  had  been  fully 
grasped;  and  that  in  1 34 1  and  1344  the  courts  were  fully  alive 
to  its  incorporeal  character.^ 

Similarly  it  was  in  the  law  relating  to  advowsons  that  we  can  see 
the  beginnings  of  the  classification  of  incorporeal  things  into  rights 
appendant,  appurtenant,  and  in  gross.  Normally  and  regularly 
an  advowson  was  appendant  to  a  manor.  An  advowson  thus 
appendant  passed  with  the  manor  without  special  mention.^ 
''  But  advowsons  are  often  severed  from  the  manors  to  which,  in 
legal  theory,  they  had  some  time  or  other  belonged.  The  lord 
gives  the  manor  but  retains  the  advowson,  or  else  he  gives  the 
advowson  but  retains  the  manor.  The  latter  transaction  is  com- 
mon ;  numerous  advowsons  are  detached  from  their  manors  by 
being  given  to  religious  houses.  An  advowson  thus  detached 
becomes,  to  use  a  phrase  which  is  current  in  the  last  years  of  the 
thirteenth  century,  'a  gross'  that  is,  a  thing  by  itself,  a  thing 
which  has  an  independent  existence."  ^  Thus  we  get  the  modern 
idea  of  an  incorporeal  thing  in  gross  as  contrasted  with  one  which 
is  appendant.  Further,  it  would  seem  that  if  an  advowson  was 
annexed,  not  to  a  manor,  but  to  a  messuage  or  some  other  speci- 
fied piece  of  land,  it  was  sometimes,  in  Edward  II.'s  reign,  spoken 
of  as  appurtenant*  In  this  we  may  possibly  see  the  germ  of  the 
distinction  between  rights  appendant,  i.e.  annexed  immemorially 
and  of  common  right  ^  to  land,  and  rights  which  are  appurtenant, 
i.e.  annexed  by  special  act  of  the  parties  to  the  land.^ 

When  Blackstone  took  the  advowson  as  the  type  and  model 
of  an  incorporeal  hereditament,"  he  was  doing  a  great  deal  more 
than  giving  an  apt  illustration.  He  was  indicating  an  historical 
truth.  The  canonists  had  developed  from  the  old  crude  idea  of 
the  ownership  of  a  church  the  idea  of  the  incorporeal  right  of 

^  Above  98.  2  Bracton  f.  55 ;  Co.  Litt.  307a. 

3  P.  and  M.  ii  135. 

*  **  We  have  made  the  advowson  appurtenant  to  the  messuage  from  the  time  of 
king  Henry  till  now,  by  means  of  presentments  which  have  been  made  as  appurten- 
ances," Y.B.  4  Ed.  II.  (S.S.)  lygper  Malberthorpe  arg. ;  on  the  other  hand,  an  advow- 
son was  said  to  be  appendant  to  a  manor,  ibid  181 ;  but  probably  at  this  time  the 
distinction  was  not  very  fully  grasped,  see  Y.B.  6  Ed.  II.  48-49,  85 ;  moreover,  it  is 
difficult  to  distinguish  the  two  words  when  they  are  abbreviated  and  in  their  Latin 
form,  below  148. 

^For  this  phrase  see  below  168-169. 

''"Appendants  are  ever  by  prescription,  but  appurtenances  maybe  created  in 
some  cases  at  this  day,"  Co.  Litt.  121b;  for  the  evolution  and  application  of  this 
distinction  in  the  case  of  rights  of  common  see  below  147-150  ;  note  that  when  Coke 
said  that  "  appendants  are  ever  by  prescription,"  he  was  not  using  the  word  "  prescrip- 
tion "  in  its  technical  sense,  but  simply  to  denote  immemorial  user ;  as  we  shall  see, 
common  appendant  could  not  be  claimed  by  prescription,  below  149,  169. 

'  Comm.  ii  21-22. 


COMMONS  143 

patronage.  The  courts  of  common  law  naturally  took  over  this 
idea  when  they  asserted  jurisdiction  over  advowsons  ;  and,  as  we- 
shall  now  see,  it  helped  them  to  build  up  the  law  as  to  other 
kinds  of  incorporeal  things. 

Commons. 

There  are  many  varieties  of  rights  to  profits  a  prendre  in  alieno 
solo  known  to  the  common  law,  and  most  of  them  may  be  the 
subjects  of  common  rights.  These  common  rights  were  a  neces- 
sary part  of  that  common  or  open  field  system  ^  upon  which  most 
of  the  land  of  England  was  cultivated  for  many  centuries.^  Thus 
we  find  common  of  turbary,  or  the  right  to  cut  turf  for  fuel ; 
common  of  estovers,  or  the  right  to  cut  timber,  underwood,  furze, 
etc.,  for  fuel  or  litter;  common  of  piscary,  or  the  right  to  fish  in 
another's  water ;  and,  by  far  the  most  important  of  all,^  the  right 
of  common  of  pasture.  It  is  this  right  with  which  we  are  here 
concerned. 

Rights  of  common  of  pasture  may  be  divided  according  to 
their  legal  qualities  into  different  classes — common  appendant, 
common  appurtenant,  common  in  gross,  common  pur  cause  de 
vicinage,  and  common  of  shack.*  The  distinction  between  the  first 
two  of  these  classes  is  thus  stated  by  Mr.  Scrutton.^  **  Common 
Appendant  is  the  right  which  every  freehold  tenant  of  the  manor 
possesses  to  depasture  his  commonable  cattle,  levant  and  couchant 
on  his  freehold  tenement  anciently  arable,  on  the  wastes  of  the 
manor,  and  originally  on  all  (common)  pasture  in  the  manor.  .  .  . 
Common  Appurtenant,  on  the  other  hand,  is  against  common 
right,  becoming  appurtenant  to  land  either  by  long  user  or  by 
grant  express  or  implied.  Thus  it  covers  a  right  to  common  with 
animals  that  are  not  commonable,  such  as  pigs,  donkeys,  goats, 
and  geese ;  or  a  right  to  common  claimed  for  land  not  anciently 
arable,  such  as  pasture,  or  land  reclaimed  from  the  waste  within 
the  time  of  legal  memory."  Common  in  gross,  on  the  other  hand, 
is  not  annexed  to  the  holding  of  any  land.  It  is  a  personal  as 
opposed  to  a  praedial  right.  Common  pur  cause  de  vicinage 
exists  where  there  are  adjoining  wastes  belonging  to  two  different 
manors  and  the  tenant  of  each  manor  is  allowed  to  put  his  beasts 

iVol.  ii  56-61. 

2 "  The  common,  so  far  from  being  an  incidental  or  occasional  feature,  or  a 
separate  and  auxiliary  means  of  small  gains,  was  an  integral  part  of  a  system," 
E.  C.  K.  Gonner,  Common  Land  and  Enclosure  4. 

•■' "  Sed  quoniam  magis  Celebris  est  ilia  servitus  per  quam  conceditur  alicui  jus 
pascendi ;  ideo  primo  dicendum  est  de  ea  quae  dicitur  communia  pasturae,"  Bracton 
f.  222a. 

*  A  large  part  of  the  mediaeval  learning  is  ably  summarized  by  Coke  in  Tyrring- 
ham's  Case  (1584)  4  Co.  Rep.  36b ;  for  a  good  modern  account  see  Gonner,  op.  cit. 
96-100. 

°  Commons  42,  43,  cited  Vinogradoff,  Villeinage  265,  266. 


144  THE  LAND  LAW 

on  the  wastes  of  the  other.  ^  Common  of  shack  existed,  as  we 
have  seen,  in  some  parts  of  the  country,  over  lands  of  the  manor 
after  harvest  and  before  the  land  was  sown ;  or  over  those  parts 
of  the  manor  which,  according  to  the  course  of  cultivation  there 
pursued,  were  for  the  time  being  lying  fallow.  During  these 
periods  the  cattle  of  the  village  were  pastured  promiscuously  over 
the  open  fields.^  These  rights  of  common  might  be,  and  usually 
were,  enjoyed  not  only  by  the  freehold  but  also  by  the  villein, 
or  later  copyhold  tenants  of  the  manor. 

There  have  been  two  views  as  to  the  historical  origin  of  rights 
of  common.  According  to  one  view,  they  owed  their  origin  to  a 
grant  of  the  lord.  This  view  long  was,  and  perhaps  still  is,  the 
theory  of  the  common  law.^  Certainly  we  owe  to  it  the  un- 
doubted rule  of  law  that  all  rights  of  common  must  originate  in  a 
grant,  and  cannot  therefore  be  claimed  by  an  indefinite  collection 
of  persons  because  they  cannot  take  a  grant  ^ — a  conclusion  which 
is  contradicted  by  the  fact  that  the  numerous  miscellaneous  com- 
munities of  the  Middle  Ages  were  capable  of  very  various  ac- 
tivities, rights,  and  liabilities.^  It  has  been  defended  by  Mr. 
Scrutton,^  who  relies  on  the  words  of  Bracton;  but,  as  I  have 
said  above,  we  must  be  careful  lest  we  miss  historical  truth  by 
not  making  allowance  for  the  fact  that  Bracton,  like  other  common 
lawyers,  looked  at  all  legal  phenomena  from  the  point  of  view  of 
the  feudal  and  individualistic  ideas  of  the  royal  courts/  As  Sir 
Paul  Vinogradoff  has  pointed  out,  if  we  take  the  bare  rules  of  the 
royal  courts  it  is  wholly  impossible  to  understand  the  principles 
which  underlie  these  rules.  ^  We  must  go  deeper  and  adopt  the 
other  view  as  to  the  origin  of  these  rights  of  common  if  we  are  to 
understand  the  principles  which  gave  the  rules  their  later  form. 

The  other  view,  adopted  by  Joshua  Williams  ^  and  Sir  Paul 
Vinogradoff,  finds  the  origin  of  rights  of  common  in  the  prevalent 

1  Bracton  ff.  222,  228b ;  Digby,  History  of  the  Law  of  Real  Property  201  n.  2 ; 
Vinogradoff,  Villeinage  264,  265 ;  Bracton's  Note  Book  cases  392,  1230. 

2  Vol.  ii  57;  Bracton  ff.  222,  228b;  Miles  Corbet's  Case  (1585)  7  Co.  Rep. 
5a ;  disputes  sometimes  arose  as  to  the  mode  of  regulating  these  rights,  see  Y.BB. 
3  Ed.  II.  (S.S.)  112,  113  ;  II,  12  Ed.  III.  (R.S.)  370 ;  I  think  that  the  case  reported  in 
Y.B.  5  Ed.  II.  (S.S.)  {1312)  125  refers  to  common  of  shack,  and  that  "  temps  ouert " 
or  "tempore  aperto"  means,  not,  as  it  is  translated,  "open  weather,"  but  at  the 
time  when  the  land  is  unenclosed,  i.e.  after  harvest. 

3  Lord  Dunraven  v.  Llewellyn  (1850)  15  Q.B.  791;  Williams,  Real  Property 
(17th  ed.)  App.  F. 

^  Gateward's  Case  (1607)  ^  Co.  Rep.  59a  ;  Warrick  v.  Queen's  College,  Oxford 
(1871)  L.R.  6  Ch.  Ap.  716,  724;  below  170-171. 

''Vol.  ii  377  ;  below  169. 

^  Commons  and  Common  Fields  chap.  ii. 

"^  Vol.  ii  403. 

8  Vinogradoff,  Villeinage  266-269 ;  cp.  also  his  book  on  the  Growth  of  the  Manor 
165-170. 

^  Rights  of  Common  37-40. 


COMMONS  145 

mode  of  cultivating  the  land  ;  ^  and  this  explains  why  the  common 
rights  of  the  free  and  the  unfree  tenant  are  so  similar.  The 
strip-holder  in  the  common  fields  possessed  not  only  his  strips ; 
he  had  as  incident  to  his  holding  certain  rights  of  common  in  the 
waste :  we  have  here  the  germ  of  the  common  appendant  of  later 
law.  In  the  days  when  large  tracts  of  marsh  or  moor  or  wood 
separated  villages  it  must  have  been  difficult  to  define  exactly  the 
boundaries  of  each.  It  was  natural  that  these  villages  should  use 
such  ground  in  common.  ''  Neighbours  deem  it  often  advan- 
tageous to  establish  a  certain  reciprocity  in  this  respect.  By 
special  agreement  or  by  tacit  allowance  lords  and  tenants  inter- 
common  on  each  others'  lands."  It  is  "much  too  frequent  to  be 
considered,  as  it  was  by  later  law,  a  mere  excuse  for  trespassing."  ^ 
It  is  clear  that  we  have  here  the  common  pur  cause  de  vicinage 
of  later  law.  The  common  of  shack  is  of  course  sufficiently  ex- 
plained by  the  system  of  common  field  cultivation.  Cases  in  the 
Year  Books  show  that  varieties  of  this  custom  sometimes  gave 
rise  to  disputes.^  This  view,  therefore,  of  the  origin  of  rights  of 
common  explains  most  of  the  leading  divisions  of  later  law.  It 
does  not,  however,  explain  the  division  between  common  append- 
ant and  appurtenant,  nor  does  it  explain  the  right  of  common  in 
gross.  The  division  between  appendancy  and  appurtenancy  does 
not  clearly  appear  until  the  end  of  the  fifteenth  century.^  Changes 
in  the  social  order,  changes  in  the  agricultural  system,  and  the 
growing  precision  of  rules  of  law,  altered  and  sharpened  the  rules 
relating  to  rights  of  common,  and,  by  so  doing,  gave  rise  to  this 
distinction.  The  recognition  of  the  right  of  common  in  gross  is 
due  to  the  growth  of  the  view  that  a  right  of  common  was  rather 
a  piece  of  property  which  could  be  granted  by  a  lord  to  any  one, 
whether  connected  with  the  manor  or  not,^  than  a  necessary 
accompaniment  of  the  system  of  agriculture.^  I  must  now  say 
something  about  the  manner  in  which  these  changes  came  to  pass. 

^  Vol.  ii  56-61. 

2  Vinogradoff,  Villeinage  264,  265  and  authorities  there  cited  ;  for  a  case  where 
it  arose  by  express  agreement  see  Ramsey  Cart,  i  p.  164 ;  the  view  taken  of  it  in 
later  law  is  illustrated  by  the  dictum  of  Man  wood,  C.B.,  in  1573,  Dyer  316b,  to  the 
effect  that,  "  such  commoner  by  cause  of  vicinage  may  not  drive,  or  put  in  his  beasts 
into  the  other  waste  at  first ;  but  first  in  his  own  common,  and  then  the  beasts  may 
well  stray,  and  go  into  the  other  common,  without  being  distrained." 

^Vol.  ii  547. 

*  Scrutton,  op.  cit.  chap,  ii ;  L.Q.R.  iii  396.  The  first  case  in  which  we  get 
anything  like  the  modern  distinction  drawn  is  Y.B.  37  Hy.  VI.  Trin.  pi.  20 ;  for  a 
grant  of  common  appurtenant  see  Madox,  Form.  no.  485. 

^Gonner,  op.  cit.  11,  98-99. 

^  Bracton  did  not  consider  it  a  right  of  common,  "  Item  notandum  quod  non 
debet  dici  communia,  quod  quis  habuerit  in  alieno,  sive  pro  precario,  sive  ex  causa 
emptionis,  cum  tenementum  non  habeat  ad  quod  possit  communia  pertinere,  sed 
potius  herbagium  dici  debet  quam  communia;  "  but  it  is  so  considered  in  Edward 
I.'s  reign,  Y.BB.  21,  22  Ed.  I.  (R.S.)  28 ;  30,  31  Ed.  I.  (R.S.)  328 ;  32,  33  Ed.  I. 

VOL.   III.—  10 


146  THE  LAND  LAW 

The  village  community  is,  as  we  have  seen,  not  far  below  the 
surface  of  the  manor. ^  In  many  cases  the  lord  was  obliged  to 
conform  to  the  communal  system  of  agriculture,  and  though  he 
was  the  owner  of  the  waste  he  was  obliged  to  conform  to  the 
rules  as  to  its  user.  These  rules  were  asserted  against  him  not 
only  by  his  freehold  tenants,  as  against  whom  he  would  be 
estopped  by  his  grant  from  diminishing  any  rights  of  common 
incident  to  holdings  which  had  been  granted  by  himself,  but  also 
by  the  whole  community,  servile  as  well  as  free.^  So  completely 
were  the  rights  of  even  the  villeins  to  the  common  recognized, 
that  the  lord  sometimes  negotiated  and  entered  into  an  agreement 
with  them  with  reference  to  these  rights.^  But  when  the  condi- 
tion of  the  country  improved,  when  more  land  came  under  cultiva- 
tion, the  question  of  the  limits  of  the  lord's  rights  was  bound  to 
arise.  The  free  tenant  could  appeal  to  the  courts  against  any 
diminution  in  his  rights ;  and  we  cannot  doubt  that  it  was  this 
fact  which  brought  clearly  into  prominence  the  legal  question, 
Can  the  lord  approve  the  common  without  the  consent  of  the 
tenants  ?  On  the  whole  it  is  probable  that  he  could  not ;  *  but  it 
is  probable  that  it  was  a  question  (like  the  question  of  the  free 
alienation  of  land  by  the  tenant)  ^  as  to  which  there  was  no  posi- 

(R.S.)  464;  cp.  also  Y.BB.  15  Ed.  III.  (R.S.)  184;  11  Hy.  VI.  Hil.  pi.  19;  in  later 
law  vestura  or  herbagium  terrae  is  •' a  particular  right  in  the  land,"  Co.  Litt.  4b; 
Robinson  v.  Duleep  Singh  (1878)  11  CD.  at  p.  813. 

1  Vol.  ii  72-73. 

2  Ibid  377-381 ;  Vinogradofif,  Villeinage  272,  "  The  number  and  kind  of  beasts 
which  may  come  to  the  common  from  his  land  is  fixed,  as  well  as  the  number  that 
may  come  from  the  land  of  a  cottager.  The  freeholders  alone  can  enforce  the 
rule  against  him,  but  it  is  set  up  not  by  the  freeholders,  but  by  the  entire  community 
of  the  manor,  and  practically  by  the  serfs  more  than  by  the  freeholders,  because  they 
are  so  much  more  numerous ;  "  Growth  of  the  Manor  170-173  ;  cp.  Y.B.  32,  33  Ed. 
I.  (R.S.)  228,  230  where  Hengham,  J.,  says,  "  I  shall  never  be  of  any  other  opinion 
than  that  this  writ  (admeasurement  of  pasture)  will  serve  as  well  between  lord  and 
tenant,  as  between  neighbour  and  neighbour  ;  "  at  p.  234  Bereford,  J.,  says,  •'  If  the 
lord  surcharge  so  that  the  tenant  cannot  have  sufficient  common  he  disseises  him  ;  " 
Y.B.  33-35  Ed.  I.  (R.S.)  8  Hunt,  arg.,  says,  '•  Many  a  man  has  soil  where  he  ought 
not  to  common." 

^  Select  Pleas  in  Manorial  Courts  172,  "  Ad  istam  curiam  venit  tota  communitas 
villanorum  de  Bristwalton  et  de  sua  mera  et  spontanea  voluntate  sursum  reddidit 
domino  totum  jus  et  clamium  quod  idem  villani  habere  clamabant  racione  commune 
in  bosco  domini  qui  vocatur  Hemele  et  landis  circumadjacentibus  .  .  .  et  pro  hac 
sursum  reddicione  remisit  eis  dominus  de  sua  gracia  speciali  communam  quam 
habuit  in  campo  qui  vocatur  Estfield." 

*  The  authorities!  in  favour  of  this  view  are  the  preamble  to  the  Statute  of 
Merton;  Bracton's  statement  ff.  227,  228b;  see  also  E.H.R.  xxxiii  344-347  for  three 
twelfth-century  Lincolnshire  charters  in  which  sokemen  consented  to  grants  of  the 
waste  made  by  a  lord ;  for  the  view  held  by  the  lawyers  at  the  end  of  the  century 
see  Y.B.  20,  21  Ed.  I.  (R.S.)  354,  356,  464.  That  the  law  before  the  statute  was 
not  quite  clear  may  be  seen  from  Bracton's  Note  Book,  case  1975 — on  the  jurors  de- 
claring that  a  tenant  has  sufficient  after  an  approvement  made  the  plaintiff  withdraws ; 
cp.  case  1881 ;  the  numerous  assarts  which  were  made  about  this  period  may  per- 
haps show  that  a  power  to  approve  was  assumed,  Scrutton,  op.  cit.  65,  66. 

'^  Above  76-79. 


i 
t 


COMMONS  147 

tive  rule  till  new  circumstances  called  for  the  making  of  such  a 
rule.^  The  Statute  of  Merton(  123  5- 1 2 36),"  after  reciting  the  doubt 
which  had  arisen,  provided  that  a  lord  should  be  able  to  approve 
as  against  his  tenants,  provided  that  he  left  them  a  sufficiency  of 
common,  with  free  ingress  and  egress  to  and  from  the  common ; 
and  the  question  as  to  the  sufficiency  of  the  common  and  the 
freedom  of  ingress  and  egress  was  to  be  tried  by  assize.  But  this 
statute  dealt  only  with  rights  of  common  as  between  a  lord  and 
his  tenants.  In  1285  ^  these  provisions  were  extended  to  rights 
of  common  as  between  neighbours,  i.e.  to  common  pur  cause  de 
vicinage,  "  because  foreign  tenants  have  no  more  right  to  common 
in  the  wastes,  woods,  or  pastures  of  any  lord  than  the  lord's  own 
tenants."  It  was  also  specially  provided  that  if  a  man  erected  a 
windmill,  a  sheepcote,  a  cowshed,  or  made  a  necessary  enlargement 
of  his  court  or  curtilage,  no  assize  of  novel  disseisin  for  diminish- 
ing common  of  pasture  should  lie  against  him.*  These  statutes 
did  not  apply  to  any  grant  of  common  made  specially  by  a 
lord.^ 

It  was  in  the  course  of  the  three  following  centuries  that  the 
distinctions  between  common  appendant,  common  appurtenant, 
and  common  in  gross,  grew  up.  They  had  begun  to  emerge  at  the 
end  of  the  mediaeval  period ;  but  it  was  not  till  the  end  of  the 
sixteenth  and  the  beginning  of  the  seventeenth  centuries  that  they 
attained  their  modern  shape.  The  causes  which  gave  rise  to  them 
were  somewhat  as  follows  : — 

One  effect  of  the  statutes  of  Merton**  and  Westminster  11.'' 
was  to  draw  a  distinction  between  the  kinds  of  common  as  against 
which  the  lord  could  approve,  and  the  kinds  of  common  as  against 
which  he  could  not  approve.  These  statutes  clearly  applied  to 
common  appendant  and  to  common  pur  cause  de  vicinage.  The 
Statute  of  Westminster  II.  further  provided  that  its  provisions 
were  to  apply  to  those  who  claimed  common  of  pasture  as  per- 
taining to  their  tenements ;  but  that  '*  if  a  man  claimed  common 
by  a  special  feoffment  or  grant  for  a  certain  number  of  cattle,  or 

^See  Gonner,  op.  cit.  101-104. 

2  20  Henry  III.  c.  4;  it  was  agreed  in  1312-1313  that  if  admeasurement  was  im- 
possible or  difficult,  owing  to  the  fact  that  the  common  was  claimed  as  appendant  to 
a  burgage  tenement,  there  could  be  no  common  appendant ;  but  this  argument  was 
over-ruled,  Y.B.  6  Ed.  II.  (S.S.)  112-114. 

3  13  Edward  I.  st.  i  c.  46. 
**For   a  case  on  the  meaning  of  this  clause  see  Y.B.  2,  3  Ed.  II.  (S.S.)  38, 

"  The  statute  has  not  so  wide  a  meaning  that  by  reason  of  his  seignory  a  man  may 
take  and  enclose  another's  common  to  make  a  meadow  or  pasture  within  his 
court ;  it  only  permits  him  to  enlarge  his  court  by  curtilage  or  garden  or  what  else 
is  necessary  for  his  court;"  per  Bereford,  J.;  for  a  modem  case  see  Patrick  v. 
Stubbs  (1842)  9  M.  and  W.  870. 

5  13  Edward  I.  st.  i  c.  46 ;  below  148-149.  ^  20  Henry  III.  c.  4. 

'  13  Edward  I.  st.  i  c.  46. 


148  THE  LAND  LAW 

otherwise  than  he  ought  of  common  right  to  have  it,  since  agree- 
ment derogates  from  the  law,  let  him  recover  his  own  as  he  ought 
to  do  in  accordance  with  the  form  of  grant  made  to  him."  ^  As 
the  result  of  this  enactment  the  Year  Books  of  Edward  II. 's  reign 
distinguished  common  granted  by  specialty  from  common  append- 
ant.^ But  what  did  this  common  granted  by  specialty  include  ? 
Did  it  include  or  did  it  exclude  common  appurtenant?  The 
answer  to  this  question  is  rendered  the  more  difficult  by  the 
similarity  of  the  two  words.  Both  are  abbreviated  as  "  App.  "  in 
the  Year  Books  ;  and  the  same  Latin  word  '*  pertinens  "  does  duty 
for  both;  so  that,  as  Coke  says,  we  are  driven  to  rely  on  the 
context  to  discover  which  is  meant. ^  It  would  seem,  however, 
that  there  is  a  good  deal  to  be  said  for  the  view,  which  was  put 
forward  in  argument  as  late  as  1878,'^  that  the  statute  excluded 
common  appurtenant^  The  statute  distinctly  excludes  common 
which  is  against  common  right  ;  and  we  shall  see  that  common 
appurtenant  was,  as  contrasted  with  common  appendant,  recognized 
to  be  against  common  right. "^  But  this  is  not  the  view  which  has 
prevailed.  The  clause  of  the  Statute  of  Westminster  II.  which 
has  been  set  out  above  was  mis-translated,  and,  in  the  mis-transla- 
tion, was  made  to  read  *'  if  any  claim  common  by  special  feoff- 
ment or  grant  for  a  certain  number  of  beasts  or  otherwise  which 
he  ought  to  have  of  common  right."  No  one  seems  to  have  been 
aware  of  this  mis-translation  till  it  was  pointed  out  by  Joshua 
Williams.''  It  seems  to  have  induced  Coke  to  believe  that  the 
statute  included  both  common  appendant  and  common  appurten- 

^  "  Et  hoc  observetur  de  his  qui  clamant  pasturam  tanquam  pertinentem  ad 
tenementa  sua.  Sed  si  quis  clamat  communam  per  speciale  feoffamentum  vel  con- 
cessionem  ad  certum  numerum  averiorum  vel  alio  modo  quam  de  jure  communi 
habere  deberet,  cum  conventio  legi  deroget,  habeat  suum  recuperare,  quale  habere 
deberet  per  formam  concessionis  sibi  factae." 

2Y.BB.  5  Ed.  II.  (S.S.)  (1312)  147— "  Scro/^r.— Whereas  he  saith  that  he  is 
seised,  we  tell  you  that  he  is  seised  in  this  manner,  by  his  payment  of  twenty  shillings 
in  some  years  and  of  four  marks  in  others  for  the  privilege  of  commoning,  etc.,  and 
so  he  is  not  seised  of  it  as  appendant,  but  by  his  own  payment ;  ready,  etc. 
Denham  seised  as  appendant,  ready,  etc. ;  "  6  Ed.  II.  (S.S.)  113.  "  Herle. — If  you 
claim  this  common  you  must  claim  common  appendant  or  by  specialty  ;  "  ibid  126- 
"  Toudeby. — In  what  way  your  common  ?     By  specialty  or  as  appendant  ?  " 

3  "  And  it  was  said  in  this  case  this  word  pertinens  is  Latin  as  well  for  appurten- 
ant as  appendant,  and  therefore  subjecta  materia;  and  the  circumstances  of  the  case 
ought  to  direct  the  court  to  judge  the  common  to  be  appendant  or  appurtenant," 
Tyrringham's  Case  (1584)  4  Co.  Rep.  at  f.  38a. 

^Robinson  v.  Duleep  Singh  11  CD.  at  p.  821. 

^In  Y.B.  20,  21  Ed.  I.  (R.S.)  432-436  Berwick,  J.,  held  that  a  grant  to  a  man 
by  charter  of  the  right  to  common  "  in  the  same  manner  as  his  neighbours  do 
common  "  gave  the  lord  the  same  right  to  approve  against  him  as  he  had  to  approve 
against  his  neighbours ;  the  reporter  appends  a  note  "  that  in  this  case  the  charter 
does  not  hold  good,"  evidently  thinking  that,  if  it  had,  there  would  be  no  right  to 
approve ;  and  in  Y.B.  3  Ed.  II.  (S.S.)  136-137  Stanton,  J.,  seems  to  take  the  view 
that  if  a  lord  granted  his  tenant  common  by  deed,  i.e.  common  appurtenant,  he  could 
not  approve  against  him. 

^  Below  149,  i6g.  '  Rights  of  Common  iii. 


COMMONS  149 

ant,  and  excluded  only  common  in  gross ;  ^  and  this  view  was  up- 
held in  1 878  by  the  judgment  of  the  court  of  appeal, ^  Cotton,  L.  J., 
relying  on  the  mis-translated  passage  in  the  Statute  of  Westminster 
11.^  No  doubt  this  interpretation  was  expedient.  We  shall  see 
that  common  appurtenant  was  tending  to  become  of  greater  im- 
portance than  common  appendant;^  and  it  was  not  in  accordance 
with  the  agricultural  policy  pursued  by  the  Tudors,^  or  with  the 
economic  views  of  the  court  of  appeal  in  1878,*  to  throw  insuper- 
able obstacles  in  the  way  of  improvements  which  increased  the 
productivity  of  the  soil.  Technically  the  result  of  this  interpreta- 
tion has  been  to  cause  the  provisions  of  these  statutes  to  bring  out 
the  distinction,  not  between  common  appendant  and  common 
appurtenant,  but  between  these  two  kinds  of  common  and  common 
in  gross.  As  we  shall  now  see,  other  causes  were  bringing  out  the 
distinction  between  common  appendant  and  common  appurtenant 
In  the  first  place,  one  effect  of  the  working  of  the  Statute  of 
Quia  Emptores  was  to  diminish  the  number  of  cases  in  which 
common  could  be  claimed  as  incident  to  tenure  of  a  manor, 
because,  after  the  passing  of  that  statute,  on  a  feoffment  in  fee, 
the  tenant  did  not  hold  of  the  manor.  Such  tenants,  therefore,  if 
they  were  given  a  right  of  common,  must  have  a  right  of  common 
appurtenant.^  This  tended  to  increase  the  number  of  cases  in 
which  tenants  in  the  manor  had  these  different  rights  of  common. 
In  the  second  place,  we  have  seen  that  the  Statute  of  Westminster 
II.  distinguished  those  rights  of  common  which  were  of  common 
right  from  those  which  were  not.^  Though  the  significance  of 
this  distinction,  so  far  as  relates  to  approvement,  had  been 
obscured  by  a  mistranslation  of  the  statute,  the  distinction 
survived,  and  gave  rise  to  two  practical  consequences.  Firstly, 
because  common  appendant  was  of  common  right  it  could  not 
be  prescribed  for;  but  common  appurtenant,  being  contrary  to 
common  right,  could  be  prescribed  for.^  This  rule  was  clearly 
laid  down  in  Henry  VI.'s  reign,  and  it  is  noted  by  the  reporter 
as  if  it  was  a  new  idea  to  him.^^  Secondly,  common  appendant 
was  not  destroyed  by  unity  of  seisin.  If  the  person  having  a 
right    of   common  appendant,  acquired  the  land  over  which    it 

^  "  So  here  it  is  to  be  observed  that  neither  this  statute  nor  the  statute  of  Merton 
doth  extend  to  any  common,  but  to  common  appendant  or  appurtenant  to  his  tene- 
ment, and  not  to  a  common  in  gross  to  a  certain  number,"  Second  Instit.  475. 

2  Robinson  v.  Duleep  Singh  11  CD.  798. 

3  Ibid  at  p.  822.  *  Below  150-151. 

^  Bk.  iv  Pt.  I.  c.  I ;  it  may  be  noted  that  the  statutes  of  Merton  and  Westminster 
II.  were  approved  and  confirmed  by  3,  4  Edward  VI.  c.  3  §  2. 

''Robinson  v.  Duleep  Singh  11  CD.  at  p.  815 per  James,  L.J. 

^  Co.  Litt.  i2ib  ;  L.Q.R.  iii  397. 

^  Above  148  n.  i.  ^  Below  169. 

loy.B.  22  Hy.  VI.  Mich.  pi.  13  per  Newton  and  all  the  court;  cp.  Y.B.  4  Hy, 
VI.  Hil.  pi.  10;  Co,  Litt,  i2ib, 


150  THE  LAND  LAW 

existed,  and  afterwards  granted  this  land  to  another,  the  right  of 
common  revived ;  ^  and  similarly  if  he  purchased  part  of  the  land 
over  which  it  existed,  the  common  was  apportioned.^  But  in 
both  these  cases  the  right  of  common  appurtenant  ceased  to 
exist.  ^  In  the  third  place,  the  older  rights  of  common,  to  which 
the  statutes  of  Merton  and  Westminster  II.  applied,  could  only 
be  attached  to  arable  land  anciently  held  of  the  manor.  No  right 
of  common  could  attach  to  any  other  land,  or  therefore  to  any 
part  of  the  waste  which  had  been  approved,  otherwise  than  by 
express  grant.*  In  the  fourth  place,  the  hardening  of  the 
distinction  between  free  and  copyhold  tenure  led  the  lawyers  to 
put  into  different  categories  the  common  rights  attached  to  free- 
holds held  anciently  of  the  manor,  and  the  common  rights 
attached  to  copyholds.  The  right  of  a  copyholder  as  against  his 
lord  was  a  right  which  was  dependent  upon  manorial  custom ; 
and  if  he  wished  to  claim  common  by  long  user  as  against  another 
he  must  prescribe  in  the  name  of  his  lord.^  All  these  causes 
tended  to  differentiate  these  two  species  of  rights  of  common ; 
and  it  was  therefore  only  natural  that  they  should  come  to  be 
known  by  different  names.  Rights  of  common  which  depend  on 
express  grant  or  prescription  are  rights  appurtenant :  those  which 
do  not  are  rights  appendant.^ 

Common  appurtenant  was  destined  to  increase  at  the  expense 
of  all  the  other  rights  of  common  of  pasture  formerly  known  to 
the  law,  just  as  socage  tenure  increased  at  the  expense  of  the 
other  free  tenures.'''  With  the  disuse  of  the  common-field  system 
common  of  shack  gradually  went  out  of  use,  and  the  growth 
of  population  and  the  improvement  of  the  country  rendered 
infrequent  common  pur  cause  de  vicinage.  Common  appendant 
was  confined  to  the  rights  of  the  freehold  tenants  of  the  manor ; 
and  the  doctrine  of  the  royal  courts  that  an  unincorporate  com- 
munity could  not  claim  a  right  of  common  by  prescription, 
because  no  grant  could  be  made  to  it,^  probably  destroyed  many 

^ "  If  I  have  land  to  which  common  is  appendant,  and  I  purchase  the  land  in 
which  I  used  to  have  the  common,  and  afterwards  I  give  the  land  to  which  the 
common  was  appendant  to  you,  you  will  have  the  common,  notwithstanding  the  unity 
of  seisin  of  both  lands,"  Y.B.  20  Ed.  III.  (R.S.)  ii  64-66  per  Willoughby,  J. 

2  Tyrringham's  Case  (1584)  4  Co.  Rep.  at  fT.  37b,  38a ;  Wyat  Wyld's  Case  (1610) 
8  Co.  Rep.  at  f.  yga. 

=^Last  note;  but  on  alienation  of  part  of  the  land  to  which  the  common  is 
appurtenant  it  will  be  severed,  for,  if  the  law  were  otherwise,  "  all  common  appurten- 
ants in  England  would  be  destroyed,  which  would  be  against  the  commonwealth," 
Wyat  Wyld's  Case  at  f.  79b ;  Co.  Litt.  122a. 

4  Bracton  f.  225b ;  Y.B.  26  Hy.  VIII.  Trin.  pi.  15. 

5  Forston  v.  Crachroode  (1587)  4  Co.  Rep.  31b  ;  cf.  Gateward's  Case  (1607)  6  Co. 
.  Rep.  at  f.  6ob ;  these  rights  can  hardly  be  classed,  as  Scrutton,  op.  cit.  43,  classes 

them  as  rights  of  common  appurtenant. 

^  Above  143,  '^  Above  53.  ^  Below  170-171, 


RENTS  151 

customary  rights  enjoyed  in  the  Middle  Ages.  Any  right  of 
common  not  appendant  and  not  belonging  to  the  other  classes  of 
common  came  to  be  considered  as  a  right  of  common  appurtenant. 
Thus  common  appurtenant  came  to  mean,  not  only  a  right  of 
common  depending  upon  express  grant  or  prescription,  but 
also  a  right  of  common  belonging  to  a  tenant  of  the  manor  to 
turn  out  beasts  other  than  commonable  beasts,^  and  a  right 
attached  to  land  other  than  ancient  arable  land.'^  Probably  rights 
of  common  appurtenant,  rights  of  common  in  gross,  and  customary 
rights  of  common  enjoyed  by  the  copyholders,  are  the  three  most 
usual  classes  of  rights  of  common  at  the  present  day. 

Rents. 

A  rent  was  one  of  the  services  in  return  for  which  land  might 
be  granted.  It  issued  out  of  the  land.  It  could  be  distrained  for 
by  the  lord  in  whosoever's  hands  the  land  was.  It  was  treated 
as  a  thing — a  tenement — just  like  the  land.^  Such  rent  service 
ceased  to  be  rent  service  if  the  lord  granted  it  to  another.  It 
became  rent  seek.  The  grantee,  not  being  the  lord,  could  not 
distrain ;  but  for  all  that  the  rent  was  still  regarded  as  a  thing. 
The  grantee  to  complete  his  title  must  get  seisin ;  *  and  if  he  had 
got  seisin  he  was  protected  by  the  assize  of  novel  disseisin  or  the 
quod  permittat.^  The  effect  of  the  Statute  Quia  Emptores  was 
to  make  a  reservation  of  a  rent  service  on  a  grant  in  fee  simple 
impossible.  Instead,  the  grantee  charged  his  lands  with  the  pay- 
ment of  rent  to  the  grantor,  and  gave  him  expressly  a  power  of 
distress — hence  we  get  the  rent  charge,  the  grantee  of  which 
was,  so  far  as  remedies  by  action  went,  in  the  same  position  as 
the  grantee  of  a  rent  seek.  We  can  see  these  different  kinds  of 
rent  from  an  early  period.  They  are  distinguishable  in  the 
Year  Books  of  Edward  I.  and  II I. 's  reigns;^  and  are,  as  we  have 
seen,  defined  in  their  modern  sense  by  Littleton.'^ 

All  these  rents  issued  out  of  land ;  they  were  in  a  sense  part 
of  the  land  which  was  charged  with  their  payment.  But  a  man 
might  promise  to  pay  a  rent  without  definitely  charging  any 
particular  land  with  its  payment.^  A  person  entitled  to  a  pay- 
ment of  this  kind  was  not  entitled  to  the  protection  of  the  real 

lY.B.  37  Hy.  VI.  Trin.  pi.  20. 

2  Above  150;  Williams,  Real  Property  (17th  ed.)  633. 

3  P.  and  M.  ii  129-132;  Holmes,  Common  Law  389,  390. 
^  Above  loo-ioi. 

^  Above  19-20 ;  Y.B.  9  Hy.  VI.  Trin  pi.  7  per  Paston,  J. 

8Y.BB.  30,31  Ed.  I.  (R.S.)  420;  ir,  12  Ed.  III.  (R.S.)  500;  18,  19  Ed.  III. 
(R.S)  20. 

'  Vol.  ii  577  ;  cp.  Plowden  132. 

«  P.  and  M.  ii  132 ;  cp.  Y.B.  33-35  Ed.  I.  (R.S.)  a  writ  of  annuity  for  an  annual 
sum  promised  in  return  for  the  services  of  a  pleader;  Y.B.  6,  7  Ed.  II.  (S.S.)  80-84 
a  like  writ  for  a  sum  promised  for  medical  attendance. 


152  THE  LAND  LAW 

actions — a  rent  which  came  from  nowhere  in  particular  was  not 
sufficiently  intimately  connected  with  the  land.^  For  such  "an- 
nuities "  a  writ  of  annuity  was  invented  about  the  end  of  Henry 
III.'s  reign.  It  is  clear  that  actions  brought  under  this  writ 
were  sufficiently  real  to  preclude  wager  of  law ;  ^  and  that  these 
annuities,  though  unconnected  with  the  land,  were  regarded  as 
incorporeal  things,^  which  ''savoured  of  the  freehold."*  The 
grantee  may  be  in  difficulties  if  he  cannot  allege  seisin.^  They 
are  said  to  issue  from  the  grantor's  chamber — and  it  was  in 
Edward  I.'s  reign  a  moot  point  as  to  the  proper  venue  of  such 
an  action.  The  reporter  of  Edward  I.'s  reign  drew  distinctions 
based  upon  the  approximation  of  the  annuity  to  a  thing  or  to  a 
contract  respectively.  His  words  show  us  that  even  then  the 
annuity  had  this  double  aspect.^  It  was  not  till  the  law  of 
contract  developed  that  the  practice  of  granting  such  annuities 
was  superseded  by  the  practice  of  creating  contractual  obligations. 
Somewhere  between  the  rent  which  is  a  tenement  and  the 
mere  annuity  is  the  corody.  A  corody  is  a  grant,  usually  by  a 
religious  house,  to  some  person  of  clothing,  board,  and  lodging 
for  a  fixed  period.^     It  might  represent  a  reward  for  service  done 

1  Bracton  f.  i8o  ;  Bracton's  Note  Book  case  52  ;  "  the  statute  [West.  II.  c.  25] 
speaks  of  taking  profits,  as  nuts  or  acorns,  in  a  place  certain ;  and  the  case  of  an 
annuity  charged  upon  a  manor  is  similar.  But  if  I  grant  you  an  annuity  issuing 
from  my  chamber,  that  is  not  a  place  certain,  for  my  chamber  is  there  where  I  myself 
happen  to  be  or  to  be  sojourning,  and  in  that  case  you  cannot  have  an  assize,"  the 
Eyre  of  Kent  (S.S.)  iii  142  per  Scrope  arg. 

2Y.B.  6,  7  Ed.  II.  (S.S.)  82-83. 

3 See  Y.BB.  3  Ed.  II.  (S.S.)  137,  138;  16  Ed.  III.  (R.S.)  ii  478;  18  Ed.  III. 
(R.S.)  352 — it  is  prescribed  for  as  a  thing ;  but  this  seems  to  be  overruled  in 
Y.B.  49  Ed.  III.  Hil.  pi.  9  by  Belknap  and  the  v^hole  court — their  personal 
character  is  emerging ;  on  the  other  hand,  prescription  was  allowed  in  Y.B.  12 
Rich.  II.  136,  and  the  fact  that  it  was  claimed  in  this  way  was  held  to  show  that  it 
was  not  a  merely  contractual  right,  and  so  the  claim  could  not  be  barred  by  a  release 
of  actions  for  debt  account  or  any  other  contract;  but  in  Y.B.  21  Ed.  IV.  Hil.  pi.  83 
the  court  was  divided  as  to  their  real  or  personal  character,  and  consequently  as  to 
their  capacity  to  be  assigned. 

4  The  Eyre  of  Kent  (S.S.)  ii  51  per  Bereford,  C.J. 

5  Y.B.  21,  22  Ed.  I.  (R.S.)  128,  540;  in  Y.B.  6,  7  Ed.  II.  (S.S.)  120  there  is  an 
allegation  that  the  plaintiff  is  seised. 

'^  Y.B.  20,  21  Ed.  I.  (R.S.)  320,  "  Note  that  if  a  man  bind  himself  by  a  writing 
to  pay  an  annuity,  the  process  depends  on  the  form  of  the  writing ;  that  is  to  say, 
if  the  writing  mentions  that  the  annuitant  is  to  receive  the  annuity  from  his  chamber 
at  such  a  place,  then  the  writ  shall  issue  to  the  sheriff  of  the  county  where  the  place 
is;  and  if  the  writing  makes  no  mention  of  the  place  where  he  is  to  receive  the 
annuity,  but  only  says  that  he  is  to  receive  it  from  his  chamber,  then  the  grantee 
shall  bring  his  writ  in  the  county  where  the  obligor  is,  wheresoever  the  chamber 
may  be :  for  his  chamber  is  where  he  himself  is.  And  if  the  writing  make  no 
mention  of  either,  but  only  binds  him  to  pay  yearly  forty  shillings,  then  the  grantee 
must  bring  his  writ  in  the  county  where  the  contract  was  made;  "  cp.  Y.B.  3  Ed.  II. 
(S.S.)  137,  138;  the  Eyre  of  Kent  ii  50-51;  in  the  latter  case  it  is  held  that  an 
annuitant  could  sue  for  the  arrears  of  an  annuity  by  writ  of  debt ;  but  that,  if  he  tried 
to  enforce  payment  by  such  a  writ  during  the  currency  of  the  annuity,  he  would  be 
for  the  future  unable  to  recover  any  further  instalments. 

"•  Plummer,  Fortescue  337-339;  P.  and  M.  ii  133  ;  see  e.g.  Y.B.  21,  22  Ed.  I. 
(R.S.)  576  the  keeper  of  the  gate  of  the  abbey  of  Westminster  had  a  corody  of  two 


EASEMENTS  153 

or  to  be  done,  or  a  bargain  and  sale  by  one  who  wished  to 
provide  for  old  age,^  or  an  obligation  which  a  religious  house 
owed  to  its  founder  or  to  the  crown.  The  crown  often  used 
corodies  to  reward  its  servants  or  officials ;  and  exemptions  from 
the  duty  got  by  religious  houses  were  sometimes  made  a  matter 
of  complaint  by  Parliament^  Such  a  grant  issued  out  of  a 
certain  place — it  is  more  real  than  an  annuity.  It  was  not 
charged  on  any  specific  land — it  is  less  real  than  the  rent.^ 
However,  in  1285*  those  entitled  to  corodies  were  allowed  to 
bring  the  assize  of  novel  disseisin.  If  an  efficient  remedy  was 
wanted  the  legislator  was  then  obliged  to  go  to  the  real  actions ; 
and  this,  of  course,  emphasized  the  reality  of  what  we  should 
consider  to  be  a  merely  personal  obligation.^  Annuities  and 
corodies  in  theory  formed  a  class  of  incorporeal  things  till  the 
abolition  of  the  real  actions.** 

In  the  case  of  rents,  as  in  the  case  of  many  other  incorporeal 
things  known  to  the  mediaeval  common  law,  the  exaggerated 
development  of  the  real  actions  as  compared  with  all  others  made 
an  excessive  *'  realism  "  the  line  of  least  resistance  to  the  mediaeval 
legislator  when  he  wished  to  protect  adequately  new  legal  re- 
lations. It  shows  us  why,  from  the  days  of  Bracton  to  the  days 
of  Littleton,  we  must  look  to  the  land  law  for  rules  about  trans- 
actions which  in  modern  times  belong  to  quite  different  branches 
of  the  law." 

Easements. 

In  our  modern  law  an  easement  is  the  right  either  of  using 
the  land  or  streams  of  another  for  certain  defined  purposes,  such 
as  walking,  or  driving,  or  turning  a  mill ;  or  the  right  of  restrain- 
ing the  owner  from  using  his  land  in  certain  defined  ways,  such 

white  loaves,  and  of  one  gallon  and  a  half  of  ale,  and  of  two  messes  of  meat  from 
the  convent  kitchen,  and  of  six  shillings  of  rent,  and  a  cartload  of  hay  and  a  truss  of 
grass. 

1  Eynsham  Cart,  i  no.  335  (a  pension  to  an  old  servant) ;  no.  360  (pay  of  the 
porter) ;  no.  496  (pay  of  the  mason) ;  no.  203  (in  return  for  a  covenant  to  leave  all 
movables  and  immovables  to  the  abbey) ;  no.  257  (in  return  for  a  gift  of  land) ;  for 
some  late  instances  see  Rievaulx  Cart.  354,  355. 

-R.P.  V  184a,  301b,  cited  Plummer,  op.  cit.  339;  see  Ramsey  Cart,  iii  99-108, 
where  the  king's  right  is  successfully  disputed ;  Eynsham  Cart,  i  no.  552,  where  it  is 
acceded  to. 

^  Y.B.  21,  22  Ed.  I.  (R.S.)  326,  328.  Howard^  arg',  says,  "  By  their  writ  they 
demand  it  as  a  rent  which  is  issuing  out  of  the  soil;  and  by  their  demonstrance 
it  was  a  corody  which  is  not  issuing  out  of  the  freehold  .  .  .  judgment  of  the 
contrariety." 

^  13  Edward  I.  st.  i  c.  25. 

^  Y.BB.  21,  22  Ed.  I.  (R.S.)  580,  582  the  descent  and  alienation  of  a  corody  is 
traced  ;  18  Ed.  III.  (R.S.)  342  Mowbray ^  arg.,  said  that  in  proceedings  for  a  corody 
the  view  could  be  had,  as  in  other  real  actions,  and  that  what  would  be  put  in  view 
would  be  the  abbey. 

"  Bl.  Comm.  ii  40,  "^  Vol,  ii  280-281,  590, 


154  THE  LAND  LAW 

as  building  on  it  so  as  to  obstruct  the  access  of  light,  or  digging 
in  it  so  as  to  let  down  a  house.  In  both  cases  the  duty  of  the 
servient  owner  is  to  permit ;  but  in  the  first  case  the  right  of  the 
owner  of  the  dominant  tenement  is  to  do  positive  acts ;  in  the 
second  case  the  right  of  the  dominant  owner  is  merely  to  prevent 
acts  being  done  which  would  interfere  with  the  enjoyment  of  his 
property.  In  the  first  case,  therefore,  the  easement  is  called 
positive;  in  the  second  case  it  is  called  negative.^  We  have 
seen  that  Bracton,  when  speaking  of  such  rights,  borrowed  both 
the  language  and  the  principles  of  Roman  law ;  ^  and  through 
Bracton  Roman  law  has  had  a  good  deal  of  influence  upon  our 
modern  law  of  easements.^  In  modern  times  it  is  well  settled 
that,  to  use  Roman  terms,  an  easement  is  a  praedial  servitude. 
There  can  be  no  such  thing  as  an  easement  in  gross ;  and  herein 
an  easement  differs  from  a  profit  a  prendre.*  But,  as  we  have 
seen,  neither  when  Bracton  nor  when  Littleton  wrote  was  the  list 
of  possible  easements  closed ;  ^  nor  had  the  lawyers  as  yet  begun 
to  speculate  much  upon  the  characteristics  of  the  easement.  That 
there  were  certain  definite  rights  of  this  character  which  one  man 
could  give  another  over  his  land  was  clear.  ^  That  those  rights 
could  be  acquired  by  grant  or  prescription  was  also  clear.  But 
we  do  not  find  much  positive  doctrine  as  to  the  nature  of  the 
rights.  It  was  not  clear,  for  instance,  that  there  could  not  be 
an  easement  in  gross. '^  Such  learning  as  we  do  find  upon  the 
subject  is  generally  connected  with  proceedings  for  nuisance — in 
this  period  the  assize  of  nuisance,^  and  later  the  action  on  the 
case  for  nuisance ;  ^  or  sometimes  with  the  other  real  actions 
which  lay  for  the  infringement  of  easements  and  other  incorporeal 
rights ;  ^^  or  with  actions  of  trespass  ^^  or  novel  disseisin  ^^  taken 
against  persons  who  had  interfered  with  an  easement,  and  justified 

^  The  oldest  definition  of  an  easement  is  perhaps  to  be  found  in  Termes  de  la 
Ley ;  at  p.  284  it  is  defined  as,  *'  a  privilege  that  one  neighbour  hath  of  another  by 
writing  or  prescription  without  profit,  as  a  way  or  a  sink  through  his  land  or  such- 
like ; "  but  neither  the  term  nor  the  definition  appear  in  the  older  editions  of  the 
treatise ;  in  the  later  editions  where  it  appears  it  is  adapted  from  Kitchin,  Courts 
(1580)  f.  105b,  to  which  reference  is  made ;  the  term  is  used  in  Bracton's  Note  Book 
case  720,  and  in  Y.B.  19  Ed.  III.  (R.S.)  342. 

2  Vol.  ii  283-284. 

3  See  Bk.  iv  Pt.  II.  c.  i  §  9 ;  and  cp.  Williams,  Institutes  of  Justinian  illustrated 
by  English  Law  80-88. 

*  For  this  rule  see  below  156-157.  ®  Vol.  ii  262,  580. 

^  See  Madox,  Form.  no.  217  (grant  of  water  rights) ;  Rievaulx  Cart.  (Surt.  Soc.) 
207 ;  Y.B.  18,  19  Ed.  III.  (R.S.)  298  (right  of  way). 

7  Y.B.  19  Ed.  III.  (R.S.)  342;  in  Y.B.  11  Hy.  IV.  Mich.  pi.  12  "  un  chymin  en 
gros  per  especialty  "  appears  to  be  contemplated  ;  for  the  growth  of  the  modern  rule 
see  below  156-157. 

8  See  e.g.  Y.B.  20  Ed.  III.  (R.S.)  ii  148-153  ;  cp.  Bracton  f.  221a. 

^  For  the  growth  of  the  action  on  the  case  see  Bk.  iv  Pt.  II.  c.  i  §  9, 

1"  As  to  these  see  above  19-20. 

"  Y,B.  6,  7  Ed.  II.  (S.S.)  I,  2.  ^2  Ibid  76. 


EASEMENTS  155 

their  interference  by  claiming  that  they  were  only  abating  a 
nuisance.  It  was  through  these  actions  that  the  law  arrived  at 
assured  conclusions  both  as  to  what  were  the  natural  rights 
incident  to  ownership,^  and  as  to  what  were  the  respective  rights 
of  the  dominant  and  servient  owners  where  an  easement  existed. 

A  man  may  use  his  property  as  he  pleases,  provided  that 
he  does  not  infringe  the  natural  rights  of  others  by  causing  a 
nuisance.  Even  if  the  user  of  his  property  causes  damage  to 
others  he  will  not  be  liable  to  proceedings  for  a  nuisance,  pro- 
vided that  his  acts  are  not  prohibited  by  the  law.^  Thus  a 
plaintiff  who  complained  of  a  nuisance  in  that  his  neighbour  had 
built  a  house  on  his  (the  neighbour's)  ground  which  darkened 
the  plaintiff's  windows  and  rendered  his  house  more  difficult  of 
access,  found  that  he  had  no  cause  of  action.^  "  A  man,"  said 
Choke,  '*  has  no  need  to  prescribe  for  things  which  are  of  common 
right,  as  to  distrain  for  rent,  service,  etc. ;  or  if  I  should  prescribe, 
when  a  man  builds  a  house  so  that  from  the  house  the  water 
runs  on  to  my  land,  that  I  can  abate  that  which  causes  the  water 
to  run  on  my  land,  such  prescription  is  void  ;  for  by  the  common 
law  I  can  do  this  well  enough."  *  If  a  man  has  granted  an 
easement  to  another  over  his  property  he  (the  grantor)  may  use 
his  property  as  he  pleases,  provided  that  he  causes  no  nuisance 
either  by  infringing  the  natural  rights  of  others,  or  by  infringing 
the  rights  of  the  person  entitled  to  the  easement.^  Thus,  from 
the  point  of  view  of  the  person  entitled  to  the  easement,  a  test 
is  supplied  as  to  the  extent  of  the  right  conferred.  The  person 
entitled  may  enjoy  his  right  freely;  but  he  cannot  complain 
unless  the  servient  owner  has  done  something  which,  having 
regard  to  the  existence  of  the  right,  amounts  to  a  nuisance. 

An  easement  is,  from  the  point  of  view  of  the  dominant 
owner,  a  right  of  property  ;  from  the  point  of  view  of  the  servient 
owner  a  limitation  upon  a  right  of  property.     Both  the  extent  of 

1  For  instances  see  Y.BB.  ii,  12  Ed.  III.  (R.S.)  464-470;  30,  31  Ed.  I.  (R.S.) 
40;  33-35  Ed.  I.  (R.S.)  456 ;  18  Ed.  III.  (R.S.)  210. 

2  "  Licitum  est  enim  unicuique  facere  in  suo,  quod  damnum  injuriosum  non 
eveniet  vicino,  ut  si  quis  in  fundo  proprio  construat  aliquod  molendinum,  et  sectam 
suam  et  aliorum  vicinorum  substrahat  vicino,  facit  vicino  damnum  et  non  injuriam  : 
cumja  lege  vel  a  constitutione  prohibitus  non  sit,  ne  molendinum  habeat  vel  construat," 
Bracton  f.  221a ;  but  Bracton  sometimes  darkens  counsel  by  calling  these  natural 
rights  servitudes  imposed  by  law — •*  item  a  jure  imponitur  servitus  praedio  vicinorum, 
s.  ne  quid  stagnum  suum  altius  tollat  per  quod  tenementum  vicini  submerget," 
f.  22ia ;  see  also  f.  232a. 

3  Y.B,  7  Ed.  III.  Mich.  pi.  25. 

*Y.B.  8  Ed.  IV.  Pasch.  pi.  14;  for  the  meaning  of  the  phrase  "things  of 
common  right"  see  below  168-169  ;  cp.  Y.B.  6,  7  Ed.  II.  (S.S.)  TJ  fer  Bereford,  C.J., 
who  asserts  what  is  in  substance  a  natural  right  to  abate  injuries  to  the  freehold. 

^  '•  Nocumenta  vero  infinita  sunt,  secundum  quod  inferius  dicetur,  quae  omnino 
servitutes  tollunt,  vel  saltem  impedimentum  dant  quo  minus  commode  uti  possit 
servitutibus,"  Bracton  f,  231b, 


156  THE  LAND  LAW 

the  right  thus  conferred  upon  the  dominant  owner,  and  the 
limitation  thus  imposed  upon  the  general  right  of  property  belonging 
to  the  servient  owner  are  ascertained  by  the  same  tests  as  are 
employed  to  ascertain  the  limitations  upon  the  natural  rights  in- 
volved in  ownership.  This  principle,  recently  asserted  by  the 
House  of  Lords  in  the  case  of  the  easement  of  light, ^  is  as  old  as 
the  Year  Books.  But  both  Bracton^  and  the  Year  Book  cases 
show  that  the  similarity  of  the  remedy  for  certain  infringements 
of  the  natural  rights  of  property,  to  the  remedy  for  infringe- 
ments of  the  rights  conferred  by  easements,  tended  to  cause  some 
confusion  between  easements  and  natural  rights.  Thus  Mark- 
ham,  in  a  case  of  Henry  VI. 's  reign,^  said,  ''  If  a  man  builds 
a  house  and  stops  up  the  light  coming  to  my  house,  or  causes 
the  rain  to  fall  from  his  house  and  so  undermines  my  house, 
or  does  anything  which  injures  my  free  tenement,  I  shall  have 
the  assize  of  nuisance;"  and  Moile  said,  ''If  I  have  a  way 
appendant  to  my  land  over  your  land  and  you  obstruct  the  road 
so  that  I  cannot  use  my  way,  I  shall  have  against  you  the  assize." 
It  is  clear  that  no  distinction  is  drawn  between  natural  rights  and 
easements,  because,  in  considering  the  nature  of  the  remedy,  it 
was  not  necessary  to  draw  a  distinction.  We  shall  see  that,  for 
this  reason,  it  was  long  before  the  law  attained  a  clear  distinction 
between  these  two  classes  of  rights ;  and  that  this  was  no  small 
impediment  to  the  growth  of  a  clear  and  consistent  definition  of 
the  juridical  character  of  an  easement. "^ 

On  the  other  hand,  it  is  probable  that  the  modern  rule  that 
there  cannot  be  an  easement  in  gross  ^ — a  rule,  as  we  have  seen, 
not  clearly  recognized  at  this  period  ^ — is  due  in  part  to  another 
characteristic  of  the  assize  of  nuisance.  The  assize,  as  we  have 
seen,  only  lay  for  a  freeholder  against  a  freeholder."  It  is  true 
that  in  a  case  of  1346  an  easement  in  gross  seems  to  be  contem- 
plated ;  ^  but  it  is  clear  that  the  person  entitled  to  it  had  no 
remedy  for  disturbance  by  the  assize  unless  he  could  show  that 
such  disturbance  interfered  with  his  free  tenement.^     "Put  the 

1  Colls  V.  Home  and  Colonial  Stores  [1904]  A. C.  179,  186,  197;  cp.  Higgins  v. 
Betts  [1905]  2  Ch.  at  pp.  214-215  per  Farwell,  J. 

2  Above  155  n.  2. 

3  Y.B.  22  Hy.  VI.  Mich.  pi.  23 ;  cp.  Y.B.  30,  31  Ed.  I.  (R.S.)  22. 

4  Bk.  iv  Pt.  II.  c.  I  §  9. 

^Ackroyd  v.  Smith  (1850)  10  C.B.  at  p.  180;  Rangeley  v.  Midland  Railway 
Company  (1868)  L.R.  3  Ch.  at  pp.  310,  311 ;  the  rule  does  not  of  course  apply  to 
customary  rights  in  the  nature  of  easements,  for  these  rights  and  distinction  between 
them  and  easements  see  Bk.  iv  Pt.  II.  c.  i  §  9. 

^  Above  154.  '  Above  11. 

^  Y.B.  rg  Ed.  III.  (R.S.)  342  Sharshulle  says,  "  Assize  of  nuisance  lies  only  for 
that  which  is  appendant,  for  it  does  not  lie  to  have  an  easement  in  gross  except  by 
specialty." 

^  *•  Cannot  one  have,"  says  Sharshulle,  "a  way  even  without  any  land,  and  can 
he  not  have  an  assize  in  respect  of  that  way  ?     Suppose  then  that  you  had  a  way  by 


I 


COVENANTS  ANNEXED  TO  THE  LAND  157 

case,"  said  Sharshulle  in  1349,  "that  I  grant  you  a  way  over  my 
land  by  specialty  to  such  a  mill,  and  at  this  time  you  are  not 
seised  of  the  mill,  but  you  purchase  the  mill  afterwards ;  I  say 
that,  though  I  disturb  your  user  of  this  way  afterwards,  you 
would  not  be  able  to  have  the  assize,  but  it  would  be  necessary 
for  you  to  have  recourse  to  your  writ  of  covenant."  ^  It  may  be 
that,  though  the  remedy  by  the  assize  became  obsolete,  this  con- 
dition precedent  for  obtaining  a  remedy  was  remembered,  and, 
changing  somewhat  its  shape,  hardened  into  the  fixed  rule  of 
substantive  law  that  all  easements  must  be  appurtenant.^  It  was 
the  easier  to  reach  this  conclusion  because  Bracton  had  held  that 
these  servitudes  were  all  of  a  praedial  character.^  His  view  thus 
led  to  a  result  similar  to  that  reached  by  the  procedural  rules  as 
to  the  assize.  But  it  was  probably  these  procedural  rules  which 
were  the  decisive  cause  of  our  modern  rule ;  and  in  support  of 
this  view  it  may  not  be  perhaps  quite  irrelevant  to  note  that 
many  of  the  various  '*  profits,"  disturbance  of  which  was  remedied, 
not  by  the  assize  of  nuisance  but  by  the  novel  disseisin,  can  be 
enjoyed  in  gross. 

Neither  this  nor  many  other  questions  relative  to  these  ease- 
ments were  settled  at  this  period.  The  principles  which  Bracton 
drew  from  Roman  law  had  not  as  yet  been  naturalized.  But 
these  mediaeval  developments  illustrate  the  manner  in  which  the 
modern  law  will  eventually  be  constructed,  partly  from  Roman 
rules  and  principles  and  partly  from  a  series  of  deductions  from 
the  common  law  remedies  for  the  infringement  of  these  rights.* 


¥ 


Covenants  Annexed  to  the  Land^ 


An  easement  is  a  right  attached  to  a  dominant  tenement.  It 
goes  with  that  tenement,  and  can  be  exercised  by  any  one  who 
comes  to  the  possession  of  that  tenement  whether  or  not  such 

grant  from  me  where  you  had  no  freehold,  and  afterwards  purchased  land,  would 
you  not  have  an  assize  by  reason  thereof  ?  "  ibid. 

1  Y.B.  21  Ed.  III.  Hil.  pi.  5. 

2Y.B.  5  Hy.  VII.  Mich.  pi.  15  Fairfax  says,  "Si  un  ad  un  voie  appendant  a 
son  manoir  ou  a  son  meason  per  prescription  ce  voie  ne  poit  estre  fait  en  gros  per  ce 
que  nul  home  poit  prendre  profit  de  eel  voie  sinon  qu'il  ad  le  manoir  ou  le  meason 
a  ce  que  le  voie  est  appendant ;  "  the  old  rule  said  that  only  a  freeholder  could  sue  ; 
the  new  rule  eventually  took  the  form  that  only  the  freeholder  could  use ;  but  partly 
owing  to  the  procedural  change  brought  about  by  the  substitution  of  the  action  on 
the  case  for  nuisance  for  the  assize,  partly  owing  to  the  long  continued  confusion  of 
easements  with  customary  rights  in  the  nature  of  easements,  it  was  long  before  the 
rule  was  definitely  ascertained. 

^ "  Servitutes  vero  ratione  tenementorum  a  quibus  debentur,  et  semper  con- 
sistunt  in  alieno,  et  non  in  proprio,  quia  nemini  servire  potest  suus  fundus  proprius ; 
et  nullus  hujus  modi  servitutes  constituere  potest,  nisi  ille  quod  fundum  habet  et 
tenementum,  quia  praediorum  aliud  liberum,  aliud  servituti  suppositum,"  f.  220b. 

^  Bk.  iv  Pt.  II.  c.  I  §  9. 

5  On  the  whole  of  this  subject  see  Holmes,  Common  Law,  Lecture  XL 


158  THE  LAND  LAW 

person  succeeds  to  the  actual  estate  in  the  land  to  which  the 
easement  was  first  annexed.  Suppose,  for  instance,  that  A, 
tenant  in  fee  simple,  acquires  a  right  of  way  over  the  land  of  B. 
Not  only  will  X,  who  purchases  A's  estate  be  entitled  to  the 
easement,  but  also  A's  tenants,  or  A's  lord  who  takes  by  escheat. 
As  a  general  rule  a  covenant  binds  only  the  parties  to  it  or  their 
representatives.  But  the  mediaeval  land  law  recognized  certain 
covenants  which  had  a  wider  operation.  They  were  regarded  as 
being  in  a  sense  annexed  to  an  estate  in  the  land,  so  that  they 
could  be  enforced  by  any  one  who  took  that  estate  in  the  land. 
In  this  respect  they  have  some  analogy  to  easements.  They 
differ  from  easements  in  that  they  can  be  enforced  only  by  the 
person  who  has  the  same  estate  as  the  original  covenantee. 
''  If,"  says  Coke,^  '*a  man  hath  a  warranty  to  him,  his  heirs  and 
assigns  and  he  make  a  lease  for  life  or  a  gift  in  tail,  the  lessee 
or  donee  shall  not  vouch  as  assignee,  because  he  hath  not  the 
estate  in  fee  simple  whereunto  the  warranty  was  annexed."  In 
the  case  put  above  it  would  only  be  the  person  who  took  A's 
actual  estate  who  could  enforce  such  a  covenant  made  with  him. 
Neither  his  tenants  nor  his  lord  who  took  by  escheat  could  en- 
force it.^  At  law,  therefore,  covenants  do  not  run  with  the  land : 
they  run  with  the  estate  in  the  land  to  which  they  are  annexed. 
The  conception  of  covenants  running  with  the  land  is  a  later  con- 
ception due  to  equity  ;  and,  because  these  covenants  running  with 
the  land  in  equity  really  run  with  the  land,  and  not  merely  with 
an  estate  in  it,  they  have  many  more  of  the  characteristics  of 
true  easements  than  the  covenants  which  run  at  law  with  an 
estate  in  the  land.^ 

For  the  origin  of  these  covenants  thus  annexed  to  an  estate  in 
land  we  must  look  at  the  old  obligation  of  warranty.  A  warranty 
might  be  implied ;  ^  but,  as  we  have  seen,  from  a  very  early  date 
express  warranties  were  entered  into  with  a  view  to  securing 
greater  freedom  of  alienation.^  These  warranties,  if  contained 
in  a  deed,  could  operate  as  covenants  ;  and,  though  they  operated 
as  covenants,  they,  together  with  other  covenants  relating  to  the 
land,  were  still  regarded  as  annexed  to  the  estate  in  the  land. 
During  the  course  of  the  sixteenth    and   seventeenth  centuries 

1  Co.  Litt.  385b. 

2  Chudleigh's  Case  (1589)  i  Co.  Rep.  122b  (cited  Holmes,  op.  cit.  399),  "  Always 
the  warranty  as  to  voucher  requires  privity  of  estate  to  which  it  was  annexed.  .  .  . 
But  of  things  annexed  to  land  it  is  otherwise,  as  of  commons,  advowsons,  and  the 
like  appendants  or  appurtenances.  ...  So  a  disseisor,  abator,  or  intruder,  or  the 
lord  by  escheat,  etc.,  shall  have  them  as  things  annexed  to  land.  So  note  a 
diversity  between  a  use  or  warranty,  and  the  like  things  annexed  to  the  estate  of  the 
land  in  privity,  and  commons,  advowsons  and  other  hereditaments  annexed  to  the 
possession  of  the  land." 

^'Maitland,  Equity  169-170. 

^  Below  160,  230.  ^  Above  105-106. 


COVENANTS  ANNEXED  TO  THE  LAND  159 

these  old  warranties  implied  or  express  gave  way  to  the  modern 
covenants  for  title.  The  old  warranties  having  disappeared,  the 
law  was  concerned  only  with  covenants  annexed  to  the  estate  in 
the  land ;  and  so  the  modern  law  as  to  these  covenants  is  gradu- 
ally built  up.  At  this  point  I  shall  deal  with  the  history  of  these 
covenants  in  the  case  of  a  conveyance  of  land  in  fee  simple.  The 
analogous  subject  of  covenants  running  with  the  estate  in  the  land 
or  the  reversion  as  between  landlord  and  tenant  I  shall  deal  with 
in  the  next  Book  of  this  History,  as  the  principles  of  this  branch 
of  the  law  were  not  settled  till  the  sixteenth  century. 

At  this  point,  then,  we  must  consider  (i)  how  far,  on  a  con- 
veyance in  fee  simple,  could  (i)  the  benefit,  and  (ii)  the  burden  of 
a  covenant  be  made  to  run  with  the  estate  in  the  land ;  and  (2) 
how  far  could  a  covenant  be  made  to  run  with  the  reversion. 

(i)  How  far ^  on  a  conveyance  in  fee  simple^  could  {^  the  benefit ^ 
and  (ii)  the  burden  of  a  covenant  be  made  to  run  with  the  estate  in 
the  land? 

For  the  origins  of  this  branch  of  the  law  we  must,  as  I  have 
said,  look  to  the  old  law  of  warranty. 

A  donee  could  enforce  the  obligation  of  a  donor  or  his  heirs 
to  warrant  his  title  either  {a)  by  the  process  of  vouching  to  war- 
ranty, or  {U)  by  a  writ  of  Warrantia  Cartce^  or  {c)  by  using  this 
obligation  as  a  defence  or  rebuttal,  {a)  If  B  claimed  to  be  en- 
titled to  land  in  the  possession  of  A,  A,  instead  of  defending  the 
action  for  himself,  might  vouch  his  donor  C  to  warranty.^  C,  on 
being  vouched,  might  either  deny  his  obligation  to  warrant,  in 
which  case  he  was  said  to  counterplead  the  warranty;  or  he 
might  defend  the  action;  or  he  might  vouch  a  third  person.  If 
C  failed  in  his  duty  of  warranting  A's  title,  and  A  in  consequence 
lost  his  lands,  C  must  restore  to  A  lands  of  equal  value.  Thus 
we  get  a  procedure  applied  to  actions  for  land  very  similar  to 
that  which,  in  Anglo-Saxon  times,  was  applied  to  actions  for 
chattels,^  and  to  that  which  in  Bracton's  day  was  applied  to  the 
appeals  of  robbery  or  larceny.^  It  probably,  as  Maitland  has 
pointed  out,  is  based  on  the  same  primitive  order  of  ideas  ac- 
cording to  which  a  plaintiff  is  concerned  rather  with  tracing  out 
a  wrongdoer  than  of  deciding  a  question  of  title.*     But,  as  failure 

^  For  a  full  account  of  this  process  see  P.  and  M.  ii  659-660. 

2  Vol.  ii  112-114.  2  Below  320. 

^  "  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  wrongdoer 
who  took  his  land  away  from  him.  Thus  the  process  of  voucher  was  at  first  a  pro- 
cess which  in  the  interest  of  plaintiffs  strove  to  bring  before  the  court  the  real  offender 
in  order  that  he  might  pay  for  his  offence,"  P.  and  M.  ii  660. 


160  THE  LAND  LAW 

to  fulfil  a  duty  to  warrant  might  involve  specific  restitution,  it 
must  be  regarded  as  intimately  related  and  supplementary  to  the 
real  actions,  (b)  In  certain  actions,  e.g.  in  the  assizes,  the  dila- 
tory process  of  vouching  to  warranty  was  not  allowed.^  In  these 
cases  if  a  feoffor  had  bound  himself  to  warrant,  or  was  under  an 
implied  duty  to  warrant,  the  feoffee  could  secure  the  fulfilment  of 
this  duty  by  writ  of  Warrantia  Carice,  by  means  of  which  he 
could  likewise  recover  land  of  equal  value. ^  (c)  Lastly  the  obli- 
gation to  warrant  could  be  used  as  a  defence  or  rebuttal.  A  war- 
ranty, as  Coke  said,  arms  the  purchaser  "not  only  with  a  sword 
by  voucher  to  get  the  victory  of  recompense  by  recovery  in  value, 
but  with  a  shield  to  defend  a  man's  freehold  and  inheritance  by 
way  of  rebuttal."^  If  A,  a  feoffee,  were  sued  by  the  heir  of  a 
feoffor  who  had  bound  himself  and  his  heirs  to  warranty,  A  could 
rebut  the  heir's  claim  by  showing  that  the  duty  to  warrant  had 
descended  upon  him.  In  other  words  he  could  use  the  duty  to 
warrant  as  a  defence  to  an  action  brought  against  him.^ 

''In  Bracton's  day  a  tenant  had  as  a  general  rule  a  right  to 
call  upon  his  feoffor,  who  would  also  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  containing  the  usual  formula  Sdatis 
me  dedisse."  ^  But  we  have  seen  that,  to  guard  against  the  claims 
of  the  heir,  or  to  give  a  larger  scope  to  the  persons  entitled  to  or 
bound  by  the  warranty,  express  warranties  were  frequently  entered 
into.^  The  combined  effect  of  the  Statute  de  Bigamis^  and  the 
Statute  Quia  Emptores  ^  made  these  express  warranties  essential 
on  a  conveyance  in  fee  simple.  The  former  statute  enacted  that 
if  a  gift  were  made  to  be  held  of  the  lord  of  the  fee,  or  of  persons 
other  than  the  feoffor,  and  no  express  clause  of  warranty  was  in- 
serted, only  the  feoffor  and  not  his  heirs  were  impliedly  bound  to 
warrant.^  But  the  result  of  the  Statute  Quia  Emptores  was  that 
all  land  given  in  fee  simple  was  held,  not  of  the  feoffor,  but  of  his 

1  F.N.B.  134  D. 

2  Whether  the  "  veroi  value  de  la  terre  perdue  en  deners  "  or  "  terre  pour  terre," 
i.e.  land  of  equal  value,  was  recoverable  by  this  writ  was  a  matter  of  doubt  at  the 
beginning  of  the  fourteenth  century,  Eyre  of  Kent  (S.S.)  ii  207  per  Spigurnel,  J. 

3  10  Co.  Rep.  Pref. 

^  P.  and  M.  ii  310-3 11;  in  later  law  very  fine  distinctions  were  drawn  between 
cases  where  a  man,  though  he  could  not  vouch,  yet  could  use  the  obligation  of  war- 
ranty as  a  rebuttal,  Co.  Litt.  385b. 

^P.  and  M.  ii  660.  ^  Above  105-106. 

'  4  Edward  I.  st.  3  c.  6.  ^  18  Edward  I. 

"^ "  Ubi  autem  (in  cartis)  continentur  (Dedi  et  Concessi,  etc.)  tenendum  de  capita- 
libus  dominis  foedi ;  aut  de  aliis  quam  de  feoffatoribus,  vel  haeredibus  suis,  nullo 
servitio  sibi  retento,  sine  homagio  vel  sine  dicta  clausula  warrantiae,  haeredes  sui 
non  teneantur  ad  warrantiam.  Ipse  tamen  feoffator  in  vita  sua  ratione  doni  proprii 
tenetur  warrantizare  ;  "  the  force  of  the  word  "  dedi  "  was  recognized  in  the  grant 
of  an  annuity  in  Y.B.  6,  7  Ed.  II.  (S.S.)  119,  120;  Coke,  Second  Instit.  275-277  ;  this 
implied  warranty  was  abolished  in  1845,  8,  g  Victoria  c.  io6  §  4. 


i 


COVENANTS  ANNEXED  TO  THE  LAND  161 

lord.^  Therefore  express  covenants  of  warranty  became  necessary 
to  secure  the  estate  of  the  feoffee.  Hence  these  express  covenants 
of  warranty  became  almost  universal.  Therefore  the  question, 
how  far  their  benefit  or  burden  could  be  made  to  run  with  the  estate 
in  the  land,  was  a  question  of  the  greatest  practical  importance. 

(i)  Benefit 

These  covenants  could  be  used  either  as  a  warranty,  i.e.  the 
person  entitled  to  the  benefit  of  the  warranty  could  by  the  pro- 
cess of  voucher  or  by  writ  of  Warrantia  Cartce  get  lands  of  equal 
value ;  or  they  could  be  used  as  a  covenant  on  which  an  action 
for  damages  could  be  brought.^  In  either  case  they  were  annexed 
to  the  estate  in  the  land,  and  could  be  enforced  by  persons  other 
than  the  original  feoffee  with  whom  they  were  made.  Thus  if  A 
enfeoffed  B  and  his  heirs  of  land,  and  covenanted  to  warrant  their 
title,  either  B  or  his  heirs  could  call  upon  either  A  or  his  heirs  to 
fulfil  this  obligation.  Moreover,  if  A's  covenant  were  to  B  and 
his  heirs  and  assigns,  not  only  B  but  any  person  who  became 
entitled  to  the  estate  in  the  land  as  B's  assign  was  able  to  sue  if 
B's  heirs  failed.^  Later  the  assign  could  sue  the  original  grantor 
whether  or  no  the  heirs  of  his  grantor  had  failed.^  Possibly  this 
was  the  result  of  the  Statute  Quia  Emptores.  As  we  have  seen, 
that  statute  made  the  mention  of  assigns  as  well  as  heirs  un- 
necessary when  a  grant  in  fee  simple  was  made,  because  the 
statute  allowed  assignment,  and  put  the  alienee  into  the  place  of 
the  alienor.^  It  was  only  natural  therefore  to  give  the  assign  a 
right  of  recourse  directly  against  the  original  grantor.  The  ex- 
planation which  Bracton  gives  of  this  fact  is  that  the  assign  comes 
in  because  he  is  named  as  a  quasi-heir.  He  explains  it  by  the 
analogy  of  succession ;  and  it  was  probably  because  this  analogy 

^  Above  80. 

2'»By  a  writ  of  covenant  a  demandant  can  recover  naught  but  damages  only, 
while  this  writ  of  warranty  of  charter  is  given  in  lieu  of  a  voucher,  by  which  he  can 
recover  land  to  the  value  of  the  land  he  has  lost,"  the  Eyre  of  Kent  (S.S.)  ii  20"]  per 
Spigurnel,  J. 

3  For  an  early  case  in  which  an  assignee  sued  see  Bracton's  Note  Book,  Case 
804 ;  it  is  not  there  stated  whether  or  not  the  heirs  of  the  donee  had  failed. 

^Y.B.  14  Hy.  IV.  Mich.  pi.  6  (p.  5);  Holmes,  Common  Law  374,  375;  the 
extent  of  the  grantor's  liability  to  the  assignee  is  perhaps  a  little  doubtful  in  Edward 
I.'s  reign,  Y.B.  20,  21  Ed.  I.  (R.S.)  232,  234 ;  it  is  clear  enough  in  Edward  III.'s 
reign  Y.BB.  13,  14  Ed.  III.  (R.S.)  24  per  Sharshulle,  J. ;  18  Ed.  III.  (R.S.)  440,  442 ; 
Co.  Litt.  384b;  but  apparently  the  use  of  the  term  "assigns"  was  still  necessary  if 
the  covenant  was  to  have  the  effect  of  a  warranty,  i.e.  to  render  the  warrantor  liable 
to  give  lands  in  recompense ;  otherwise  if  it  was  to  take  effect  simply  as  a  covenant 
which  ran  with  the  land,  i.e.  to  render  the  covenantor  only  liable  for  damages,  Co. 
Litt.  384b,  385a ;  Y.B.  50  Ed.  III.  Trin.  pi.  2  ;  in  Y.B.  3,  4  Ed.  II.  (S.S.)  11  it  was 
held  that  the  measure  of  damages  was  the  value  of  the  land  at  the  time  when  the 
warranty  was  given,  not  its  value  at  the  time  when  the  litigation  arose. 

■^  Above   106-107.     Holmes    suggests  this    explanation    without  adopting     it, 
Common  Law  375  n.  i. 
VOL.   III.— II 


162  THE  LAND  LAW 

was  used  that  assigns  must  be  named  if  they  were  to  be  able  to 
make  use  of  the  covenant   as   a  warranty  which  would    enable 
them  to  recover  lands  of  equal  value,  and  not  merely  as  a  cove- 
nant which  would  only  enable  them  to  recover  damages.^     But  a 
right  of  this  kind  which  was  in  a  manner  attached  to  an  estate  in 
land  looked  rather  like  an  easement ;  and  it  could  equally  well 
be  explained  on  this  analogy.      Hence  it  came  to  be  said  that 
such  a  covenant  ran  with  the  estate  in  the  land,  on  the  analogy 
of  an  easement ;  and,  if  we  adopt  this  analogy,  there  will  be  no 
need    to  mention  assigns,    because    the    land   will    pass   to   the 
assignee  with  its  appurtenances  whether  or  no  they  are  named  in 
the  grant.      Hence,  whether  or  no  assigns  are  named,  they  can 
sue   on    such  a  covenant    annexed   to    the    land   and    recover 
damages.     This  mode  of  regarding  the  matter  comes  out  clearly 
in  the    much   discussed  case   of    Pakenhani}     Pakenham    sued 
a  prior  for  breach  of  the  prior's  covenant  made  with  Pakenham 's 
great-grandfather    that    the  prior  and    convent  should    celebrate 
divine  service  weekly  in  his  chapel.     The  plaintiff  claimed  not 
as  heir  but  as  assignee ;  and  it  was  held  that  he  was  entitled  to 
recover — '*he  is  tenant  of  the  land,  and  it  is  a  thing  which  is 
annexed  to  the  chapel,  which  is  in  the  manor,  and  so  annexed  to 
to  the  manor."     Similarly  it  was  held  in  1582  that  where  A  had 
enfeoffed  B  in  return  for  certain  services,  and  granted  that  if  the 
feoffee  his  heirs  or  assigns  were  distrained  for  greater  services, 
he  (the  feoffee)  his  heirs  or  assigns  could  levy  a  distress  in  A's 
manor,   the  assign  of  B  could  take  advantage  of  the  covenant.^ 
It  is  clear  from  Pakenham  s  Case  that  the  covenantor  need 
not  necessarily  be  connected  with  the  land.*     In  that  case  the 
prior  was  a  stranger ;  and  this  was  one  of  the   cases    cited    by 
Coke  to  illustrate  his  remark  that  "  a  covenant  is  in  many  cases 
extended  further  than  a  warranty."^     But  as  early  as   1401    it 
was  recognized  that  the  assign  must,  to  enable  him  to  sue,  have 
the  land  to  which  the  covenant  was  annexed.^     An  assign  cannot, 

1  Above  161  n.  4. 

2Y.B.  42  Ed.  III.  Hil.  pi.  14;  Holmes,  Common  Law  395-398;  cp.  Y.B.  45 
Ed.  III.  Mich.  pi.  7  (covenant  to  pay  rent) ;  Dyer  at  f.  42b,  "  the  feoffee  .  .  .  has  a 
fee  simple  in  the  warranty  as  he  has  in  the  land." 

3  Moore  179 — "  Le  Court  dit  que  cy,  pur  ceo  que  le  covenant  trencha  ove  les 
terres :  et  si  le  parole  •  assign es  '  ne  fuisset  eins  tamen  le  parole  'heires'  voiloit 
garranter  le  distress  al  assignee /»«?'  Pirryam  Justice." 

^See  I  S.L.C.  (loth  ed.)  72-73. 

5  "  And  note  there  is  a  diversity  between  a  warranty  that  is  a  covenant  real, 
which  bindeth  the  party  to  yield  lands  or  tenements  in  recompense,  and  a  covenant 
annexed  to  the  land,  which  is  to  yield  but  damages,  for  that  a  covenant  is  in  many 
cases  extended  further  than  the  warranty,"  Co.  Litt.  384b. 

«Y.B.  2  Hy.  IV.  Mich.  pi.  25  (p.  6);  Holmes,  Common  Law  398,  399; 
Spencer's  Case  (1583)  5  Co.  Rep.  at  f.  i8a — "  but  if  such  covenant  were  made  to  say 
divine  service  in  the  chapel  of  another,  then  the  assignee  shall  not  have  an  action  of 
covenant,  for  the  covenant  in  such  case  cannot  be  annexed  to  the  chapel,  because  the 
chapel  doth  not  belong  to  the  covenantee,  as  is  adjudged  in  2  H.  4,  6." 


COVENANTS  ANNEXED  TO  THE  LAND  163 

like  an  heir,  rely  on  the  privity  of  contract :  he  can  only  rely  on 
privity  of  estate.^  Hence  we  get  the  modern  rule  that  the 
benefit  of  covenants  made  with  the  purchaser  of  land  will,  if  they 
relate  to  the  land,  run  with  that  purchaser's  estate  in  the  land, 
that  is  they  can  be  enforced  by  successive  tenants  of  that  estate.^ 
It  was  partly  this  settlement  of  modern  rule  as  to  the  conditions 
under  which  the  benefit  of  covenants  will  run  with  the  estate  in 
the  land,  and  partly  the  inconvenience  of  the  procedure  available 
to  enforce  a  warranty,^  which  has  led  to  the  substitution  of  the 
modern  covenants  for  title  for  the  old  warranties  express  or  im- 
plied. In  the  course  of  the  sixteenth  and  seventeenth  centuries 
covenants  for  seisin,^  for  the  right  to  convey,^  for  quiet  enjoy- 
ment,^ for  freedom  from  incumbrances,^  and  for  further  assurance,^ 
became  usual  covenants  on  a  conveyance  of  land.  They  are  at 
the  present  day  by  far  the  commonest  class  of  covenants,  the 
benefit  of  which  runs  with  the  estate  in  the  land.® 

(ii)  Burden. 

Whether  or  not  the  burden  of  a  covenant  made  by  a  purchaser 
of  land  could  be  annexed  to  it  so  as  to  run  with  the  land  was 
long  an  unsettled  question.  Bracton  ^"  seems  to  think  that  land 
might  be  so  bound  to  warranty  that  the  burden  of  warranty  would 
pass  to  the  assignee  of  the  land.  This  would  imply  that  a  man 
might  by  a  covenant  bind  his  land  and  subject  it  to  something 
very  like  an  easement.     Probably  such  covenants  were  rare.     The 

1  See  Lewes  v.  Ridge  (1601)  Cro.  Eliz.  863. 

»i  S.L.C.  (loth  ed.)  72. 

3  That  procedure  was  intimately  bound  up  with  the  procedure  in  the  real 
actions  and  was  open  to  objections  similar  to  those  which  proved  fatal  to  them. 

^An  instance  of  this  covenant  will  be  found  in  Gray  v.  Briscoe  {1607)  Noy. 
142 ;  for  the  covenant  see  Piatt,  Covenants  306-307 ;  the  vendor  covenanted  that  he 
was  seized  of  "  the  very  estate  both  in  quantity  and  quality  that  he  purports  to  con- 
vey;" it  fell  into  disuse  because,  when  limitations  to  uses  to  bar  dower  became 
usual,  conveyances  were  made  under  powers  operating  under  the  Statute  of  Uses, 
Halsbury,  Laws  of  England  xxv  463  n.  (/). 

^Trenchard  v.  Hoskins  (1621)  Litt.  62. 

"  Grenelife  v.  W.  {1539)  Dyer  42 — on  a  sale  of  copyholds ;  Mountford  v.  Catesby 
(1574)  Dyer  328a — on  a  lease  for  years. 

'  Hamington  and  Ryder's  Case  (1588)  i  Leo.  92 ;  Lewes  v.  Ridge  (1601)  Cro. 
Eliz.  863. 

8  Pudsey  v.  Newsam  (1603)  Yelv.  44. 

^  Middlemore  v.  Goodale  (1639)  Cro.  Car.  503  ;  i  S.L.C.  (loth  ed.)  72. 

^•^  ff.  382,  382b,  "  Non  solum  obligatur  persona  feoffatoris  .  .  .  poterit  etiam 
tenementum  obligari.  .  .  .  Sed  quid  si  tenementum  sic  obligatum  tacite  vel  expresse, 
propter  defectum  vel  propter  delictum  feoffatoris  tanquam  escheata,  deveniat  in 
manum  domini  regis  vel  capitalis  domini  superioris  ?  Quaero  an  ille  teneatur  ad 
warrantiam  cum  ad  warrantum  vocetur.  Et  videtur  quod  sic,  quia  res  cum  onere 
transit  ad  quemcumque  ;  "  the  case  cited  for  this  in  Bracton's  Note  Book  is  case  748  ; 
Fleta  II.  23.  19  lays  down  the  law  in  the  same  way;  cp.  Holmes,  Common  Law 
395 ;  it  will  be  observed  that  this  goes  further  than  the  cases  which  establish  the 
converse  proposition,  as  the  lord  is  not  in  of  the  same  estate  as  the  warrantor  :  the 
analogy  with  the  easement  is  more  complete,  above  158. 


164  THE  LAND  LAW 

more  usual  case  would  be  where  land  was  charged  with  rent, 
which,  as  we  have  seen,  was  regarded  as  an  independent  in- 
corporeal hereditament,  or  with  other  services,  which  were 
similarly  regarded.^  Any  covenants  which  fettered  the  freedom 
of  alienation  would  probably  have  been  held  to  be  void  as  incon- 
sistent with  the  nature  of  the  estate  granted.^  In  fact  the  power 
to  burden  the  land  by  such  covenants  seems  to  be  negatived  by 
the  dictum  laid  down  in  a  Year  Book  of  Edward  I.'s  reign  to  the 
effect  that  '*  No  one  can  bind  his  assigns  to  warranty,  because  the 
burden  of  warranty  always  extends  only  to  heirs  who  claim  by 
succession,  and  not  to  those  who  claim  by  assignment."  ^  And 
it  should  be  noted  that,  if  a  feoffee  vouched  his  feoffor  to  warranty, 
or  sued  him  by  a  writ  of  Warrantia  Cartae  he  could  only  get  such 
lands  as  the  feoffor  had  at  the  date  of  the  purchase  of  the  writ."^ 
There  is  nothing  in  Coke's  commentary  which  gives  colour  to  the 
view  that  the  burden  of  such  covenants  could  be  annexed  to  the 
land,  though  he  has  much  to  say  of  the  manner  in  which  these 
benefits  might  be  so  annexed.  Holt,  C.J.,  was  clearly  of  the 
opinion  that  the  burden  could  not  be  annexed  to  the  land,  for  he 
decided  that,  though  land  might  be  charged  with  a  rent,  it  could 
not  be  bound  by  a  covenant.^ 

This  conclusion  is  clearly  in  accordance  with  the  principles  of 
our  modern  land  law.  To  allow  the  burden  of  a  covenant  to  be 
attached  to  the  land  would  be  tantamount  to  allowing  landowners 
to  subject  it  to  something  very  like  an  easement ;  and  it  is  well 
settled  that  it  is  not  possible  for  landowners  to  create  new  ease- 
ments at  their  will  and  pleasure.*'  Moreover,  such  a  covenant 
would  obviously  tend  to  restrict  free  alienation,  and  so  would 
infringe  the  policy  of  the  modern  rule  against  perpetuities. '^  It 
is  therefore  not  surprising  that  in  1885  the  court  of  appeal  in  the 
case  of  Austerberry  v.  Corporation  of  Oldham  ^  decided  that  the 

^  Above  151 ;  below  168  ;  this  point  of  view  comes  out  clearly  in  Y.B.  6,  7  Ed.  II. 
(S.S.)  185-187. 

2  Above  85. 

3  Y.B.  32,  33  Ed.  I.  (R.S.)  516;  it  appears,  however,  to  have  been  thought  by 
Bereford,  C.J.,  in  13 12  that  a  covenant  made  by  a  husband  by  fine  on  the  conveyance 
of  land  would  bar  his  wife's  dower,  Y.B.  5  Ed.  II.  (S.S.)  83,  84. 

■* "  The  defendant  shall  have  in  value  of  the  lands  against  the  vouchee  which  he 
had  at  the  time  of  the  purchase  of  his  Warrantia  Chartce,  and  therefore  it  is  good 
policy  to  bring  his  Warrantia  Chartce  against  him  before  he  be  sued,  to  bind  the 
lands  of  the  vouchee  which  he  had  at  that  time,"  F.N.B.  134  K  ;  if  he  had  no  lands 
the  plaintiff  got  damages,  Y.B.  29  Ed.  III.  pp.  3,  4  cited  F.N.B,  134  K  n.  (a). 

5  Brewster  v.  Kitchell  (1697)  12  Mod.  166 ;  for  a  full  discussion  of  this  case  and 
the  subject  generally  see  t  S.L.C.  (loth  ed.)  76-85 ;  the  view  there  taken  as  to  the 
interpretation  of  Holt's  words  is  supported  by  Lindley  and  Fry,  I..JJ.,  in  Austerberry 
V.  Corporation  of  Oldham  (1885)  29  CD.  at  pp.  782,  785. 

^Keppel  V.  Bailey  (1835)  2  M.  and  K.  517. 

'L.S.W.R.  V.  Gomm  {1882)  20  CD.  562;  for  the  history  of  the  rule  against 
perpetuities  see  Bk.  iv  Pt.  II.  c.  i  §  6. 

8  29  CD.  750. 


COVENANTS  ANNEXED  TO  THE  LAND  165 

burden  of  covenants  relating  to  the  land  could  not  be  annexed  to 
it.  "I  am  not,"  said  Lindley,  L.J.,^  "prepared  to  say  that  any 
covenant  which  imposes  a  burden  upon  land  does  run  with  the 
land,  unless  the  covenant  does,  upon  the  true  construction  of  the 
deed  containing  the  covenant,  amount  to  either  a  grant  of  an 
easement,^  or  a  rent  charge,  or  some  estate  or  interest  in  the  land," 

(2)  How  far  could  a  covenant  be  made  to  run  with  the  reversion  ? 

With  this  question  I  can  deal  much  more  briefly.  Though 
the  analogy  of  the  easement  enabled  certain  kinds  of  covenant 
to  run  with  the  estate  in  the  land,  this  analogy  could  not  be 
invoked  to  enable  them  to  run  with  the  reversion.  Before 
the  Statute  of  Quia  Emptores  it  may  be  doubted  whether 
an  interest  like  a  reversion  could  be  regarded  as  a  sufficiently 
definite  thing  to  allow  a  covenant  to  be  annexed  to  it — it  would 
probably  have  been  regarded  as  too  indefinite  in  its  nature.^ 
After  Quia  Emptores  there  was  no  reversion  after  a  grant  in  fee 
simple.  The  covenant  therefore  could  only  bind  the  covenantor 
or  his  heirs.  On  the  other  hand  there  can  be  a  reversion  after 
the  grant  of  an  estate  less  than  an  estate  in  fee  simple.  In  the 
case  of  these  estates  therefore  the  question  arises  whether  and 
under  what  conditions  covenants  could  run  with  the  reversion. 
But  in  such  cases  the  tenant  holds  of  the  reversioner,  so  that  the 
law  applicable  to  these  covenants  depends  upon  the  rules  as  to 
the  conditions  under  which  covenants  will  run  with  the  estate  in 
the  land  or  th»  reversion  as  between  landlord  and  tenant.  We 
shall  see  in  the  following  Book  that  these  rules  have  had  a  history 
which  is  different  from  the  rules  which  have  just  been  discussed, 
and  that,  in  consequence,  the  modern  law  on  this  subject  is  also 
different. 

In  these  ways  and  by  these  means,  the  law  by  sometimes 
using  the  analogy  of  easements,  sometimes  the  analogy  of  succes- 
sion, arrived  at  the  conception  of  covenants  running  with  the  land 
as  between  the  vendor  and  purchaser  of  an  estate  in  fee  simple. 
The  possibility  of  making  such  covenants  will  do  a  little  to  restore 

^29  CD.  at  p.  781. 

"^  For  cases  in  which  this  construction  has  been  put  upon  a  covenant  see  Holmes 
V.  Seller  {1692)  3  Lev.  305 ;  and  cp.  Rowbotham  v.  Wilson  (i860)  8  H.L.C.  at  p.  362 
fer  Lord  Wensleydale. 

^Y.B,  21,  22  Ed.  I.  (R.S.)  326,  Howard  arg.,  says,  "Rent  is  a  gross  issuing 
out  of  the  freehold ;  and  he  demands  it  as  an  accessory  appendant  to  a  gross ;  and 
we  do  not  think  that  the  rent  which  is  a  gross  thing  can  be  accessory  to  another 
gross ;  "  Co.  Litt.  47a,  121a,  •'  A  thing  corporeal  cannot  properly  be  appendant  to  a 
thing  corporeal,  nor  a  thing  incorporeal  to  a  thing  incorporeal ;  "  for  the  later  law  on 
this  subject  see  i  S.L.C.  (loth  ed.)  89-91 ;  it  seems  to  have  been  modified  in  certain 
cases  so  as  to  allow  a  covenant  to  run  with  incorporeal  hereditaments  in  cases  aris- 
ing as  between  landlord  and  tenant ;  possibly  this  is  due  to  32  Henry  VIII.  c.  34,  see 
Martyn  v.  Williams  {1857)  i  H.  and  N.  at  p.  829. 


166  THE  LAND  LAW 

to  landowners  that  freedom  to  determine  the  incidents  of  estates 
in  the  land  which  was  largely  restricted  by  the  limitation  of  the 
number  and  quality  of  estates  known  to  the  law.  More  will  be 
done  later  by  equitable  extensions  of  these  doctrines. 

Prescription  ^ 

English  law  knows  no  positive  prescription  for  corporeal 
hereditaments.  As  we  have  seen,  a  person  claiming  a  corporeal 
hereditament  must  allege  that  he  or  his  predecessor  in  title  was 
seised  of  the  hereditament  within  the  period  allowed  by  the  statutes 
of  limitation  for  the  time  being  in  force.  Unless  he  can  show 
that  he  was  thus  seised  within  this  period  and  that  his  seisin  is 
older  and  better  than  that  of  the  tenant,  his  claim  fails,  and,  so 
far  as  he  is  concerned,  the  seisin  of  the  tenant  is  indefeasible.^ 
On  the  other  hand,  if  a  man  can  show  either  that  he  and  his 
ancestors,^  or  that  he  and  all  those  whose  estate  he  has,*  have 
enjoyed  certain  kinds  of  incorporeal  hereditaments  from  before  the 
time  of  legal  memory,  he  gets  a  positive  title  to  the  hereditament 
claimed.  This  time  of  legal  memory  was  fixed  at  the  year  1 189 
by  analogy  to  the  period  of  limitation  fixed  for  the  writ  of  right 
by  the  statute  of  1275.^  I^i  the  case  of  corporeal  hereditaments, 
therefore,  the  law  merely  provides  a  statute  of  limitations ;  in  the 
case  of  certain  kinds  of  incorporeal  hereditaments  it  allows  that 
length  of  user  confers  a  positive  title. 

When  Bracton  wrote,  the  law  on  this  subject  was  very  different 
both  in  substance  and  form  from  what  it  afterwards  became.  This 
was  due  partly  to  the  fact  that  the  theory  upon  which  prescription 
was  then  based  was  not  the  same  as  the  theory  upon  which  it  has 
come  to  be  based  in  the  modern  common  law;  and  partly  to 
Bracton's  habit  of  using  the  language  of  Roman  law.  Possibly, 
as  I  have  said,  the  principles  of  the  modern  common  law  would 
never  have  emerged  if  Bracton's  successors  had  been  as  learned  as 
himself  in  the  civil  and  canon  law.^  But  beneath  the  Roman 
phraseology  we  can  see  some  of  the  germs  of  the  later  law. 

In  the  first  place  we  can  see  that  a  man  may  meet  an  action 
which  questions  his  right  to  an  incorporeal  hereditament,   like  an 

^See  on  this  subject  Salmond,  Essays  in  Jurisprudence  and  Legal  History, 
Essay  II. 

2  Above  89-90.  '  Used  for  a  right  in  gross. 

^  "  In  a  que  estate,"  used  for  a  right  appurtenant  or  appendant. 

•*  Above  8  ;  P.  and  M.  i  147;  Litt.  §  175  ;  but  Littleton,  ibid,  tells  us  that  in  the 
opinion  of  some  the  period  for  prescription  was  fixed  by  the  common  law  so 
that  that  time  was  literally  the  "  time  whereof  the  mind  of  man  runneth  not  to  the 
contrary,"  and  was  independent  of  the  statute  of  1275;  "and  the  rather  in  so  much 
that  the  said  limitation  of  a  Writ  of  Right  is  of  so  long  time  passed;  "  but  un- 
fortunately this  suggestion  never  materialized,  see  Bk.  iv  Pt.  II.  c.  i  §  9. 

« Vol.  ii  284. 


PRESCRIPTION  167 

easement  or  a  right  of  common,  by  alleging  seisin  from  before 
the  time  of  legal  memory/  or  if  he  claims  it  he  may  rely  upon  a 
similar  title.  In  the  second  place  we  can  see  that  seisin  of  such 
an  incorporeal  hereditament  for  a  very  much  shorter  period  may 
confer  possessory  rights.  In  this  case  exactly  the  same  principles 
were  applied  to  both  corporeal  and  incorporeal  hereditaments. 
If  I  have  been  in  actual  seisin  of  land  or  of  a  profit  for  a  year, 
and  I  am  ejected,  I  can  bring  an  assize  of  novel  disseisin  and 
succeed  in  regaining  possession — whatever  may  be  the  result  of 
a  writ  of  right  or  other  more  proprietary  action.^  But,  as  Sir 
John  Salmond  says,^  ''When  in  later  times  it  became  allowable  to 
set  up  title  in  bar  of  a  possessory  action,  this  branch  of  the  law 
fell  into  desuetude."  The  man  who  would  recover  his  incorporeal 
hereditament  must  show  seisin  before  the  time  of  legal  memory. 
Nothing  less  will  suffice. 

What  then  was  the  principle  upon  which  seisin  from  before 
the  time  of  legal  memory  conferred  a  positive  title?  To  explain 
this  we  must  bear  in  mind  what  has  been  said  above  as  to  the  point 
of  view  from  which  the  law  regarded  the  power  of  the  landowner 
to  create  interests  in  his  land.  We  have  seen  that  the  man  who, 
to  use  modern  phraseology,  limited  an  estate,  was  regarded  as 
making  a  special  law  for  that  estate,  differing  from  the  ordinary 
law  which  would  have  governed  it  if  it  had  not  been  thus  limited.^ 
A  man  who  charged  his  land  with  rent,  or  who  gave  to  a  stranger 
a  right  of  common,  or  who  gave  a  neighbour  a  right  of  way, 
subjected  his  land  to  a  special  law  in  favour  of  the  grantee. 
Such  grantee,  if  his  right  was  questioned,  must  show  that  he  was 
entitled  ;  and  this  he  could  only  do  in  three  ways.  He  might 
either  produce  the  deed,  the  "  specialty,"  by  which  this  special  law 
was  made;  or  he  could  prescribe,  i.e.  show  that  he  had  enjoyed 
the  right  from  time  immemorial ;  or  he  could  show  that  in  the 
district  in  which  the  land  was  situated  there  was  a  special  custom 
which  entitled  all  persons  in  his  position  to  the  right  claimed.^ 
In  all  these  three  cases  the  claimant  succeeded  because  he  was 
able  to  set  up  a  special  law  applicable  to  his  case.  The  deed  was 
conclusive.     The  user  for  so  long  a  period  was  equally  conclusive, 

^  P.  and  M.  ii  141  and  references  to  Bracton's  Note  Book  there  cited;  Bracton 
f.  230,  "  Longum  tempus  qui  excedit  memoriam  hominum." 

2  Y.BB.  21,  22  Ed.  I.  (R.S.)  422;  I,  2  Ed.  II.  (S.S.)  20;  Eyre  of  Kent  (S.S.)  iii 
130  n.  17  ;  P.  and  M.  ii  141. 

''Op.  cit.  no;  vol.  ii  354;  above  9-10. 

*  Above  102-103. 

"•A  franchise  of  this  kind  may  be  claimed  in  various  ways ;  by  specialty,  or  by 
prescription  of  time,  or  as  appendant,  etc.,"  Y.B.  5  Ed.  II.  (S.S.)  143  per  Malber- 
thorpe  arg.;  cp.  Y.B.  7  Ed.  II.  212,  '*  Nota  en  cas  usage  defait  commune  ley,  que 
usage  usee  parmy  le  pais  defait  commune  ley,  mes  usage  de  un  ville  ou  de  deux  ne 
defait  commune  ley." 


168  THE  LAND  LAW 

because  no  evidence  from  before  the  time  of  legal  memory  could 
be  of  any  avail  to  show  that  the  user  was  wrongful.^  Custom,  if 
proved,  set  up  a  special  local  law  for  the  district  which,  if  reason- 
able, might  supersede  the  common  law.  Both  custom  and  pre- 
scription set  up  a  special  law.  The  difference  was  that  one  was 
personal,  the  other  local.  ^ 

That  this  conception  of  prescription  as  a  personal  law  in  favour 
of  the  person  seised  of  a  right  from  before  the  time  of  legal 
memory  is  correct,  we  can  see  from  the  rule  that  it  was  only  things 
"against  common  right  "  which  could  be  prescribed  for.  It  is 
not  all  incorporeal  things  which  could  be  prescribed  for,  because 
some  of  these  things  are  recognized  by  the  common  law  just  in 
the  same  way  as  the  ownership  of  corporeal  things.  Sir  John 
Salmond  has  shown  this  very  clearly.^  **The  ownership  of  a 
corporeal  hereditament  is  a  matter  of  common  right ;  the  ordinary 
incidents  of  the  ownership  of  land  are  recognized  by  the  common 
law.  Therefore,  in  a  plea  of  right  for  land,  the  claimant  counted 
not  of  immemorial  seisin,  but  merely  of  the  seisin  of  himself  as  of 
fee  and  of  right  at  such  and  such  a  time.  Of  incorporeal 
hereditaments,  on  the  other  hand,  some  are  of  common  right  and 
some  against  common  right.  Certain  forms  of  services  are 
recognized  by  the  common  law  as  possible  incidents  of  freehold 
tenure,  due  by  reason  of  that  tenure  from  the  tenant  to  the  lord. 
Such  services,  of  which  the  most  important  is  rent  service,  are, 
therefore,  of  common  right,  and  when  a  lord  claimed  them  by 
a  writ  of  custorhs  and  services,  or  avowed  in  replevin  by  reason  of 
them,  he  alleged  not  immemorial  seisin  of  them,  but  merely  seisin 
of  himself  or  his  predecessors  at  the  hand  of  the  tenant  or  his  pre- 
decessors. All  other  services,  however,  were  against  common 
right,  and  the  claimant  was  required  to  allege  seisin  from  before 

1  Bracton  f.  230,  "  Item  docere  oportet  longum  tempus  et  longum  usum,  ilium 
videlicet  qui  excedit  memoriam  hominum,  tale  enim  tempus  sufficiat  pro  jure,  non 
quia  jus  deficiat,  sed  quia  actio  deficit  vel  probatio ;  "  and  this  continued  to  be  the 
view  of  the  common  law,  see  the  Y.BB.  cited  2  Rolle  Ab.  268-269 ;  cp.  20  Ed.  III. 
(R.S.)  i  342,  "  That  which  is  before  time  of  memory  does  not  fall  within  the  know- 
ledge of  anyone,"  per  Thorpe  arg. 

2  "  And  nota  the  difference  between  prescription  which  is  made  in  the  person  of 
any,  as  he  and  all  his  ancestors,  etc.,  or  all  those  whose  estate  he  hath,  etc.,  and 
custom  which  lies  upon  the  land,  as  infra  manerinm  talis  habetur  constietudo,  etc.  ; 
and  this  custom  binds  the  land,  as  gavelkind  borough  English  and  the  like," 
Swayne's  Case  (1609)  8  Co.  Rep.  at  f.  64a ;  cp.  Salmond  op.  cit.  95,  96. 

3 Ibid  100-102;  in  Y.B.  32,  33  Ed.  I.  (R.S.)  264,  Bereford,  J.,  says  "Since 
you  affirm  your  estate  by  a  custom,  which  custom  is  against  common  right,  and 
which  custom  began  by  a  tort,  it  is  necessary,  if  you  wish  to  prove  your  estate 
by  that  custom,  that  you  should  maintain  it  by  long  continuance  of  time ;  "  see  also 
Bereford's  statement  in  Y.B.  6  Ed.  II.  (S.S)  102;  Y.B.  3,  4  Ed.  II.  (S.S.)  65  per 
Malberthorpe  arg.;  and  Choke's  statement  in  Y.B.  8  Ed.  IV.  Pasch.  pi.  14  cited 
above  155  n.  4;  cp.  Tennant  v.  Goldwin  (1705)  Salk.  360;  we  have  seen  above  155, 
that  this  was  one  of  the  ideas  which  helped  to  differentiate  easements  from  natural 
rights. 


PRESCRIPTION  169 

the  memory  of  man.  ...  So,  again,  if  the  service  claimed  was  that 
of  suit  at  the  mill  of  the  claimant,  the  method  of  claim  depended 
on  whether  he  against  whom  it  was  made  was  the  claimant's 
tenant  or  not.  If  he  was,  the  service  was  of  common  right,  and 
the  claimant  merely  alleged  seisin  at  the  hands  of  his  tenant  or 
his  ancestors.  If  he  was  not,  the  claim  was  against  common  right, 
and  required  to  be  supported  by  immemorial  usage."  On  the 
same  principle  common  appendant,  being  of  common  right,  need 
not  be  prescribed  for ;  ^  common  appurtenant  or  in  gross  and 
easements,  not  being  of  common  right,  must  be  prescribed  for. 

In  the  Middle  Ages  some  of  the  most  important  classes  of 
incorporeal  things  were  franchises.  As  we  have  seen,  in  Bracton's 
day  these  things 'could  not  be  prescribed  for.'^  Neither  statute 
nor  custom  would  bind  the  crown  unless  the  crown  was  specially 
included ;  for  the  king  is  praerogative ;  and  prescription  being  a 
special  personal  law,  presumed  from  lapse  of  time  in  favour  of  an 
individual,  could  not  avail  against  the  king.  The  law  was  modified 
by  the  Statutes  of  Gloucester ;  ^  and  in  the  case  of  certain  franchises 
a  prescriptive  title  was  allowed  to  be  good  even  against  the  crown.^ 
But,  subject  to  this  limitation,  all  kinds  of  incorporeal  things 
against  common,  right — profits  as  well  as  easements — could  be 
prescribed  for ;  and,  as  the  communities  of  the  land  were  definite 
enough  for  very  various  purposes,  not  only  persons  natural  or  in- 
corporate, but  also  unincorporate  communities  could  prescribe. 
Thus  in  1305  ^  Hugo  and  others,  with  the  whole  county  and  the 
king's  tenants  of  the  vill  and  land  of  Montgomery,  sued  E.  de 
Mortuomari  for  that  he  had  deforced  them  of  their  common  of 
pasture  in  L.,  their  free  chase  and  fishery  throughout  the  whole 
of  Sabrina,  and  of  all  their  streams  in  the  lands  of  K.,  of  which 
they  had  been  seised  from  before  the  time  of  memory.  The 
defendant  did  not  appear.  The  assize  confirmed  the  claim  of  the 
plaintiffs,  and  the  court  gave  judgment  that  they  do  recover  their 
seisin  of  their  common,  their  chase,  and  their  fishery. 

But,  before  the  end  of  the  mediaeval  period,  the  theory  upon 
which  prescription  was  allowed  to  operate  had  changed.  As  the 
things  against  common  right  which  could  be  prescribed  for  were 
normally  created  by  a  deed  of  grant,  it  came  to  be  thought  that 
prescription  was  based,  not  so  much  on  a  personal  law  in  favour 

1  Above  149;  but  it  must  of  course  be  proved,  and  in  1312  Hereford,  C.J., 
ruled  that  it  was  not  proved  merely  by  showing  seisin  of  it  for  twenty  years,  Y.B. 
5  Ed.  II.  (S.S.)  150. 

'^  Vol.  i  87.  3  Ibid  88,  8g. 

*  But  not  in  the  case  of  franchises  which  required  either  a  record  or  a  charter 
made  within  time  of  memory  to  support  them.  Case  of  Abbot  of  Strata  Marcella 
(1592)  9  Co.  Rep.  at  ff.  27b,  28a;  Bl.  Comm.  ii  265;  cp.  Salmond  op.  cit.  107  n.  i. 

«Y.B.  32,  33Ed.  I.  (R.S.)5i9,  520. 


170  THE  LAND  LAW 

of  the  person  seised,  as  on  the  fact  that  such  immemorial  user 
was  conclusive  evidence  of  a  grant  made  before  the  time  of  legal 
memory.  This  was  a  theory  very  different  to  the  older  theory ; 
and  it  entailed  different  consequences.  At  the  same  time  some  of 
the  rules  which  had  sprung  from  the  older  theory  still  survived. 
The  result  was  the  creation  of  a  body  of  somewhat  arbitrary 
rules  as  to  the  persons  who  could  and  the  persons  who  could  not 
prescribe. 

We  have  seen  that  on  the  old  theory  no  prescription  was 
possible  as  against  the  crown ;  but,  on  the  newer  theory,  there 
could  be  no  objection  to  such  a  prescription.  However,  we  see 
traces  of  the  older  theory  in  the  rules  that  certain  franchises  cannot 
be  prescribed  for.^  On  the  other  hand  the  newer  theory  proved 
fatal  to  the  claims  of  unincorporate  communities  to  prescribe  for 
profits  a  prendre.  Such  communities  may  indeed  avail  themselves 
of  a  customary  right  in  the  nature  of  an  easement ;  but  they  cannot 
prescribe  because  they  cannot  take  a  grant ;  and,  as  profits  a  prendre 
cannot  be  claimed  by  custom,  they  cannot  claim  rights  of  this  kind. 
Both  the  old  and  the  new  theory  prevented  tenants  for  limited 
interests  from  prescribing  in  their  own  names  ;  for  on  either  theory 
prescription  is  use  from  before  the  time  of  legal  memory ;  and,  as 
Blackstone  puts  it,^  *'it  is  absurd  that  they  should  pretend  to 
prescribe,  whose  estates  commenced  within  the  memory  of  man." 

These  conclusions  were  in  course  of  formation  in  Edward  IV. 's 
reign.  Inhabitants,  it  was  said,  were  in  the  position  of  tenants  at 
will,  and  could  not  therefore  prescribe  for  a  profit,^  though  they 
could  establish  a  right  of  way  by  custom.*  On  the  other  hand  it 
seems  to  have  been  thought  that  a  tenant  for  a  definite  limited 
interest  could  prescribe.^  But  it  was  stated  in  1553  in  the  case 
of  Withers  v.  Iseham  that  neither  an  unincorporate  body  of  men 
nor  tenants  for  a  limited  interest  could  prescribe ;  *^  and  this  was 
finally  accepted  as  settled  law  in  1607  i^  Gateward's  Case'' — 
probably    in    part    from    motives    of    public    policy.^     But    this 

^  Above  169  n.  4.  2  Comm.  ii  265. 

8Y.B.  15  Ed.  IV.  Trin.  pi.  j  per  Pigot. 

*lh\A, per  Brian ;  see  also  Y.B.  18  Ed.  IV.  Pasch  pi.  15. 

^ "  Mon  verey  tenent  poit  prescriber  en  son  droit  demesne,  et  tenant  pur  term 
d'ans  auxi  quod  fuit  conccssum,  mes  le  Seigneur  tout  temps  doit  prescriber  pur  son 
tenant  a  volunte,"  Y.B.  15  Ed.  IV.  Trin.  pi.  per  Choke. 

*^  '*  A  tenant  at  will,  or  for  years,  or  life  cannot  prescribe  in  their  own  names  to 
have  common  from  the  weakness  of  their  estates.  The  inhabitants  of  a  town,  being 
tenants  at  will,  could  not  prescribe  to  have  common  in  the  waste,  etc.,  because,  in  their 
persons,  there  is  no  such  ability  or  capacity,  without  being  a  corporation ;  but  they 
may  prescribe  for  a  way  to  church  or  to  grind  toll  free  which  are  only  easements," 
Dyer  at  71a. 

'  5  Co.  Rep.  59b. 

^  '•  No  improvements  can  be  made  in  any  wastes  if  such  custom  should  be  allowed 
for  tenants  for  life,  for  years,  at  will,  tenant  by  elegit,  statute  staple,  and  statute  mer- 
chant," ibid  at  ff.  60a,  60b, 


INHERITANCE  171 

rule  was  productive  of  some  injustice  in  that  it  tended  to  defeat 
customary  rights  of  the  inhabitants  of  districts  which  may  well 
have  dated  long  before  the  establishment  of  these  rules  of  the 
common  law.^  This  consequence  of  this  new  theory  of  prescription 
had  been  seen  as  early  as  Edward  IV.'s  reign ;  and  in  our  modern 
law  the  courts  have  been  astute  to  evade  its  consequences  by 
methods  somewhat  resembling  those  indicated  in  the  Year  Book 
of  Edward  IV.2 

These  rules  show  us  that  by  the  end  of  the  mediaeval  period 
the  main  characteristics  of  prescription  at  common  law  have  been 
reached.  Prescription  is  a  mode  of  acquiring  certain  incorporeal 
hereditaments  by  user  from  before  the  time  of  legal  memory. 
Such  user  has  this  effect  because  it  supplies  the  place  of  a  lost 
grant ;  and  since  it  operates  in  this  way  no  prescriptive  title  can 
be  acquired  unless  a  grant  of  the  thing  was  legally  possible.^ 

§  8.  Inheritance 

The  fully  developed  common  law  knew  seven  rules  which 
regulated  the  descent  of  estates  in  fee  simple  in  lands  held  by  free 
tenure.*  (i)  Inheritances  lineally  descended  to  the  issue  of  the 
person  last  seised  in  infinitum,  but  never  lineally  ascended.  (2) 
Male  issue  were  admitted  before  female.  (3)  When  there  were 
two  or  more  males  in  equal  degree  the  eldest  only  inherited,  but 
the  females  inherited  together.  (4)  The  lineal  descendants  in 
infinitum  o(  any  person  deceased  represented  their  ancestor.  (5) 
On  failure  of  lineal  descendants  of  the  person  last  seised  the  in- 
leritance  descended  to  his  collateral  relatives  being  of  the  blood 

^  "  It  is  agreed  that  this  common  cannot  be  good  by  prescription.  ...  In  ancient 

times  such  grants  might  be,  as  to  the  inhabitants,  etc.,  which  were  then  allowed 

l^good,  as  the  grant  of  the  isle  of  Wrexham,  but  such  grants  would  not  be  good  at  this 

tday,"  per  Treby,  C.J.,  Weekly  v.  Wildman  (1699)  i  Ld.  Raym.  at  p.  407. 

P         ^Y.B.  15  Ed.  IV.  Trin.  pi.  j— Littleton  put  the  case  of  prescription  by  a  sheriff 

[for  a  payment  from  a  certain  vill;  no,  said  Choke,  the  sheriff  could  not  prescribe 

I  because  he  is  only  tenant  at  will ;  but  lay  the  prescription  in  the  crown  to  the  use 

|of  the  sheriff  for  the  time  being ;  Littleton  also  said,  "  Moy  semble  que  le  prescription 

fpoit  estre  fait  en  auter  maner  et  forme,  come  adire,  que  il  ad  este  use  de  temps  d'ont 

memory  ne  curt  deins  le  City  de  Coventry,  que  les  citizens  et  inhabitants  deins  mesme 

[le  Cite  duissent  cominer  en  mesme  la  lieu  .  .  .  issint  que  I'effect  del  plea  serra  sur  le 

[use; "  cp.  this  last  statement  with  Goodman  v.  Mayor  of  Saltash  (1882)  7  A.C.  633, 

^here  it  was  presumed  that  the  grant  of  a  profit  a  prendre  had  been  made  to  the 

orporation  on  trust  for  the  inhabitants ;  Lord  Blackburn  pointed  out  in  his  dissenting 

pudgment  that  such  a  trust  was  not  historically  probable ;  but  the  Y.B.  shows  that 

"le  idea  of  a  use  or  trust  in  this  connection  was  not  quite  new ;  in  fact,  that  property 

:ould  be  held  to  the  use  of  parishioners  was  laid  down  as  good  law  by  Fineux,  C.J.,  in 

"".B.  12  Hy.  VII.  Trin.  pi.  7  p.  29;  but  in  Lord  Chesterfield  v.  Harris  [1908]  2  Ch. 

^*  P-  433  it  was  pointed  out  by  Buckley,  L.J.,  that  in  Goodman  v.  Mayor  of  Saltash 

'lis  presumption  of  a  trust  was  made  to  aid  a  prescriptive  right  claimed  in  gross,  and 

lot  to  aid  a  prescriptive  right  claimed  as  appurtenant  to  land ;  and  the  same  remark 

Ipplies  to  the  case  put  by  Littleton. 

•'  Bl.  Comm.  ii  265.  *  Ibid  c.  14. 


172  THE  LAND  LAW 

of  the  first  purchaser,  subject  to  rules  (2),  (3),  and  (4).  (6)  The 
collateral  heir  of  the  person  last  seised  must  have  been  his  next 
collateral  kinsman  of  the  whole  blood.  (7)  In  collateral  inherit- 
ances the  male  stocks  were  preferred  to  the  female,  unless  the 
lands  had  in  fact  descended  from  a  female. 

Most  of  these  rules  were  ascertained  in  this  period.  Some  of 
them  are  obvious  and  call  for  no  comment.  The  rule,  for  instance, 
that  the  land  in  the  first  place  descends  is  the  "natural"  rule;^ 
and  the  rule  that  makes  the  person  last  seised  the  stock  of  descent 
follows  from  the  position  of  importance  assigned  to  seisin  in  the 
mediaeval  common  law.^  Most  of  these  rules  are  not  so  obvious, 
and  can  only  be  explained  by  history.  In  dealing  with  this  his- 
tory I  shall  divide  the  subject  as  follows: — (i)  The  preference  of 
males  to  females  ;  (2)  The  rules  of  primogeniture  and  coparcenary ; 
(3)  The  rule  of  representation ;  (4)  The  exclusion  of  ascendants  ; 
(5)  The  inheritance  of  collaterals ;  (6)  The  position  of  the  half 
blood. 

(i)  The  preference  of  males  to  females. 

Even  before  the  Conquest  the  preference  of  males  to  females 
was  the  rule.  "  This  precedence  is  far  older  than  feudalism,  but 
the  feudal  influence  made  for  its  retention  or  resuscitation."^  At 
the  same  time,  it  is  clear  that  as  early  as  the  reign  of  Henry  I. 
women  could  inherit  after  men.*  We  shall  see  that  this  preference 
holds  good  not  only  in  the  descending,  but  also  in  the  ascending 
line;  and  that,  after  some  controversy,  it  has  been  applied  to 
ascertain  the  order  in  which  the  remotest  collateral  is  entitled  to 
inherit.^ 

(2)  The  rules  of  primogeniture  and  coparcenary.^ 

There  seems  to  be  little  doubt  but  that  the  rule  of  primo- 
geniture was  a  rule  which  was  at  first  applied  to  military  fiefs.  ^  It 
was  to  the  interest  of  the  lord  that  such  fiefs  should  be  impartible. 
Thus  we  find  that  all  over  Europe  there  was  a  movement  in  the 
eleventh  and  twelfth  centuries  in  favour  of  the  impartibility  of  these 
fiefs,  and,  consequently,  in  favour  of  the  rule  that  they  should  go 
to  the  eldest  son."^     Obviously  it  was  easier  for  the  lord  to  get  his 

^  P.  and  M.  ii  258,  "  The  preference  of  descendants  before  all  other  kinsfolk  we 
may  call  natural,  that  is  to  say,  we  shall  find  it  in  every  system  that  is  comparable 
with  our  own." 

2  Above  91-92;  there  is  a  good  illustration  of  this  rule  in  Y.B.  5  Ed.  II.  (S.S.) 
(1312)  246  in  an  action  brought  on  a  writ  of  cosinage. 

^P.  and  M.  ii  259  ;  Vinogradoff,  English  Society  253. 

^  P.  and  M.  ii  260  ;  Henry  I.'s  Charter  §  3. 

^  Below  183.  ^  P.  and  M.  ii  260-276. 

■^  Thus  in  1312-1313  Hereford,  C.J.,  ruled  that  if  land  were  held  by  knight  ser\'ice 
"it  could  not  by  any  usage  be  parted  between  males,"  Y.B.  6  Ed.  II.  (S.S.)  201. 

^Glanvil  vii  3;  we  find  the  rule  in  the  Assize  of  Jerusalem,  1099;  in  the  rule 
that  Frederick  Barbarossa  made  for  dukes,  counts,  and  marquises,  1158;  and  in 


INHERITANCE  173 

services  ;  and,  in  the  days  when  the  military  tenures  really  supplied 
soldiers,  it  made  for  the  efficiency  of  the  service  itself  How  could 
a  tract  of  land  split  up  among  a  dozen  small  proprietors  provide 
an  expensive  knight  ?  It  was  on  much  the  same  principle  that 
we  find  on  many  manors  a  custom  that  the  villein  tenements  shall 
descend  to  one  person — either  the  widow  or  the  eldest  or  youngest 
son.  Perhaps  at  first  the  person  upon  whom  the  land  thus 
descended  as  one  undivided  whole  was  not  regarded  as  its  owner. 
His  younger  brothers  lived  on  the  land  with  him.  They  held  it 
together  "  in  parage  "  as  equals  (J)ares) ;  but  it  is  the  eldest  to 
whom  the  lord  looks  for  the  due  performance  of  the  services ;  and 
when  once  a  man  is  thus  held  responsible  he  is  on  the  high  road 
to  ownership.  He  grasps  at  this  position  and  attains  it  at  the 
expense  of  his  brothers.  Their  claims  escape  the  notice  of  the 
law  and  become  merely  moral.  ^ 

It  was  in  the  case  of  lands  which  were  held  upon  terms  which 
did  not  admit  of  the  application  of  this  seignorial  pressure  that 
the  old  rules  which  divided  the  land  among  the  sons  survived  the 
longest.  Both  Granvil  and  Bracton  knew  land  held  by  socage 
tenure  which  was  partible  among  heirs  and  had  always  been  so 
partible.^  No  doubt  it  had  always  been  so  divided  in  the  days 
before  the  Conquest.  But,  as  the  rules  affecting  the  military 
tenures  were  applied  by  the  royal  courts  to  all  free  tenures, 
primogeniture  became  the  rule.  It  came  to  be  thought  that, 
except  in  Kent,  partibility  must  be  proved  as  a  special  custom.^ 
The  rule  was  so  stated  by  Herle  in  argument  as  early  as  1309.^ 

At  the  very  time  when  primogeniture  was  becoming  the 
general  rule  for  all  lands  held  by  free  tenure  the  original  reason 
for  the  establishment  of  the  rule  was  fast  sinking  into  oblivion. 
We  have  seen  that  in  the  thirteenth  century  the  military  service 
of  the  military  tenant  was  becoming  obsolete ;  ^  the  rule  of 
primogeniture  could  no  longer  be  explained  by  the  military  needs 
of  the  feudal  host.  For  the  old  explanation  a  new  but  similar 
one  was  substituted,  based  upon  national  needs.  In  Edward  I.'s 
reign  it  is  said  to  be  needed  in  order  to  maintain  a  race  of  wealthy 

Brittany  in  1185,  see  Kenny,  Primogeniture  10,  11 ;  for  the  influence  of  this  idea  in 
Germany  see  Schulte,  Histoire  du  droit  de  I'AUemagne  (Tr.  Fournier)  233-235 ;  cp.  Bl. 
Comm.  ii  215. 

1  P.  and  M.  ii  261,  262. 

2  Glanvil  vii  3  ;  Bracton  f.  76 ;  P.  and  M.  ii  268. 

^  Plac.  Abbrev.  28b  (1200) — the  burden  of  proof  seems  to  be  on  the  person 
asserting  partibility,  but  this  is  not  very  conclusive,  as  he  is  the  plaintiff ;  Y.B.  20, 
21  Ed.  I.  (R.S.)  326  it  is  argued  that  impartibility  is  the  rule  except  in  Kent  ;  but 
Y.B.  33-35  Ed.  I.  (R.S.)  514  it  is  ruled  that  custom  may  make  even  a  knight's  fee 
partible — a  rule  denied  by  Bereford,  C.J.,  above  172  n.  7  ;  for  Kent  see  below  261. 

''Y.B.  2,  3  Ed.  II.  (S.S.)  97,  "  It  is  against  common  law  that  tenements  should  be 
partible  among  males.  So  it  behoves  you  to  say  how  they  are  partible,  and  how  and 
between  whom  partitioned." 

'  Above  45. 


174  THE  LAND  LAW 

landowners  who  can  see  to  it  that  the  land  is  cultivated  and  the 
cultivators  protected.^ 

Of  the  rule  of  coparcenary  I  have  already  said  something.^ 
Like  the  rule  of  primogeniture,  it  rests  upon  the  interest  of  the 
lord  ;  and  at  one  period  it  was  perhaps  possible  that  the  lord 
would  get  the  right  to  choose  which  of  the  daughters  should 
inherit.^  But  this  idea  is  based  upon  the  notion  that  that  which 
is  inherited  is  something  more  than  mere  land — that  it  is  office 
and  franchise.  The  idea  disappeared  when  land  came  to  be 
regarded  merely  as  a  form  of  property.  It  survives  only  in  the 
rule  that  if  a  peer  dies  leaving  only  daughters  the  peerage  is  in 
abeyance,  and  that  the  crown  may  determine  the  abeyance  in 
favour  of  one  of  the  daughters.^  The  rule  that  the  daughters  take 
together  as  coparceners  is  as  old  as  Glanvil ;  ^  but  both  in  his  day 
and  in  that  of  Bracton  the  eldest  held  of  the  lord  and  was  answer- 
able for  the  services.^  The  younger  daughters  held  of  the  eldest 
and  did  their  service  through  her.  It  might  have  been  that  if 
this  scheme  had  prevailed  the  rights  of  the  younger  sisters  would 
have  become  merely  moral. '^  But  it  did  not  prevail,  because,  when 
the  incidents  of  tenure  came  to  be  more  valuable  to  the  lord  than 
the  services,  another  scheme  was  found  to  be  more  profitable  to 
him.  From  the  beginning  of  the  thirteenth  century  the  king  had 
been  in  the  habit  of  making  all  the  parceners  do  homage  to  him, 
and  of  thus  securing  for  himself  the  incidents  of  tenure.^  The 
ordinance  of  1236,  which  declares  this  to  be  the  law  in  the  case  of 
tenants  in  chief,  also  states  that  if  the  parceners  hold  of  a  mesne 
lord,  only  the  eldest  does  homage,  but  that  the  lord  is  entitled  to 
wardships  and  marriages  from  all.^  But,  under  this  arrangement, 
mesne  lords  often  found  it  difficult  to  get  their  wardships  and 
marriages. ^^    Britton  recommends  them  to  imitate  the  king  and  to 

1  In  1276,  in  the  charter  by  which  Edward  I.  disgavelled  the  lands  of  John  of 
Cobham,  it  is  explained  that,  "  It  has  often  happened  by  the  ancient  Kentish  custom 
of  partition  in  gavelkind  that  lands  and  tenements,  which  in  certain  hands  when 
undivided  are  quite  sufficient  for  the  service  of  the  state,  and  the  maintenance  of 
many,  are  afterwards  divided  and  broken  up  amongst  coheirs  into  so  many  parts  and 
particles,  that  no  one  portion  suffices  even  for  its  owner's  maintenance,"  Robinson, 
Gavelkind  60. 

2  Vol.  ii  349. 

3  P.  and  M.  ii  273  citing  Bracton's  Note  Book  case  12 — but,  as  Maitland  points 
out,  the  plea  which  attempted  to  assert  this  principle  was  probably  overruled ;  cp. 
case  1273,  which  decided  that  the  lands  of  the  Earl  of  Chester  were  divisible  among 
coparceners. 

4  Co.  Litt.  165a.  5yii  2. 
«Ibid;  Bracton  f.  78;  P.  and  M.  ii  274,  275. 

'  P.  and  M.  ii  276. 

8  The  law  is  so  stated  in  the  writ  sent  by  the  king  to  Ireland  in  1236 ;  the  writ  is 
sometimes  called  Statutum  Hibernice  de  Coheredibus,  P.  and  M.  ii  275. 

8  To  allow  the  eldest  sister  the  guardianship  "  esset  quasi  committere  agnum  lupo 
de  orandum,"  seeing  that  she  has  all  to  gain  by  their  death  without  issue. 

^'^  Vol.  ii  349. 


INHERITANCE  175 

take  the  homage  of  all  the  parceners.^  This  meant  that  the 
interest  of  all  the  daughters  was  definitely  recognized  by  law ;  so 
that,  just  as  the  interest  of  the  lord  in  the  service  of  his  military 
tenants  had  in  former  days  made  for  primogeniture  among  sons, 
so,  in  later  days,  his  interest  in  the  incidents  of  tenure  made  for 
coparcenary  among  the  daughters. 

(3)  The  rule  of  representation. 

The  descendants  of  a  child  stand  in  the  place  which  the  child 
himself  would  have  occupied  had  he  been  alive.  Thus  the  children 
(male  or  female)  of  an  elder  son  inherit  before  a  younger  son.  The 
law  had  not  adopted  this  rule  in  Glanvil's  day.^  But  it  was  coming 
to  be  the  law  in  the  time  of  Bracton.  Bracton  regards  it  as  the 
true  rule.  Indeed,  it  is  involved  in  the  principles  underlying  the 
law  of  inheritance.^  But  its  application  to  the  case  of  uncle  and 
nephew  was  hindered  by  the  casus  regis.^  To  have  ruled  that  the 
nephew,  the  son  of  an  elder  son,  had  a  better  title  than  his  uncle, 
the  younger  son,  would  have  been  an  aspersion  upon  John's  title 
to  the  throne,  and  therefore  upon  the  title  of  his  son  Henry  III., 
the  reigning  king.  Though  in  Edward  I.'s  Year  Books  we 
perhaps  see  some  traces  of  this  old  hesitation  as  between  uncle  and 
nephew,  the  principle  seems  to  be  admitted ;  ^  and  it  is  clear 
that  the  remoter  descendants  from  a  son  are  preferred  to  the 
nearer  descendants  from  daughters.^  As  Maitland  points  out,  the 
principle  of  representation  was  accepted  and  acted  upon  in  the 
great  case  between  Bruce  and  Balliol  for  the  crown  of  Scotland. 
"  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."  ^ 

(4)  The  exclusion  of  ascendants. 

No  lineal  ascendant  of  the  person  from  whom  descent  is 
traced  can  inherit  the  land ;  but  the  brothers  and  sisters  and  other 
descendants  of  such  ascendant  can  inherit.  The  rule  is  clear 
enough  as  early  as  Glanvil's  day;  but  neither  he  nor  Bracton 
attempt  to  explain  it.  They  can  only  say  that  an  inheritance, 
like  a  heavy  body,  cannot  fall  upwards.^     Two  explanations  of  the 

^ii  29.  '^vii  3  ;  P.  and  M.  ii  282. 

3  Below  178.  •«  p  and  M.  ii  283. 

^Y.B.  33-35  Ed.  I.  (R.S.)  154,  "Note  by  Warr.  If  the  uncle  enter  as  heir 
apparent  while  the  true  heir  is  out  of  the  kingdom,  and  die  seised,  and  his  son  be  seised, 
although  the  true  heir  comes  back  he  shall  never  recover  by  English  law  " — this  looks 
as  if  the  heir  could  recover  from  the  uncle. 

"Y.B.  33-35  Ed.  I.  (R.S.)  236;  Y.B.  14,  15  Ed.  III.  (R.S.)  34— it  is  assumed 
that  each  parcener's  share  descends  to  her  issue ;  ibid  200,  202. 

"'  P.  and  M.  ii  284. 

^  Glanvil  vii  i,  "  Nunquam  naturaliter  ascendit ;  "  Bracton  f.  62b,  "  Descendit 
itaque  jus  quasi  ponderosum  quid  cadens  deorsum  recta  linea  vel  transversali,  et 


176  THE  LAND  LAW 

rule  have  been  offered.  The  first  is  that  of  Blackstone.^  He  tells 
us  that  the  rule  is  of  ''  feudal  original."  If  difeudum  novum  were 
granted  to  a  son,  it  was  only  the  descendants  from  his  body  who 
were  entitled  to  succeed.  If,  on  the  other  hand,  he  had  succeeded 
to  a  feudum  antiquum  by  inheritance  from  his  father,  his  father 
must  be  dead.  In  order  to  enlarge  the  possible  number  of  heirs 
to  the  son  he  might  be  granted  a  feudum  novum  to  be  held  ut 
feudum  antiquum.  This  had  all  the  qualities  of  a  true  feudum 
antiquum.  Therefore  the  direct  ascendants  could  not  take,  as 
they  had  in  theory  died.  The  second  theory  is  that  of  Maitland.^ 
He  suggests  that  it  springs  from  the  rule  laid  down  by  Glanvil 
that  a  man  cannot  be  both  lord  and  heir.  If  A  enfeoffed  his  son 
B  of  land,  and  B  had  done  homage  to  A,  A  was  entitled  to  the 
services  due  from  the  land — he  held  it  in  service ;  and  B  was 
entitled  to  the  land — he  held  it  in  demesne.  It  was  thought  that 
A,  having  the  services,  could  not  inherit  the  land.  A,  therefore, 
would  be  passed  over  and  the  land  would  go  to  the  next  heir.  It 
was  only  if  all  the  heirs  failed  that  A  could  take  the  land  as  an 
escheat. 

Blackstone's  theory  may  be  true  of  a  Lombard  rule  which 
was  known  in  the  Middle  Ages ;  ^  but  there  is  no  proof  that  any 
such  theory  was  ever  received  in  this  country.  It  is  open  to  the 
objection  that  it  proves  too  much.  According  to  it  an  elder 
ought  not  to  be  able  to  succeed  to  a  younger  brother ;  but  there 
is  no  doubt  that  he  was  able  to  do  so.  At  first  sight  it  would 
seem  as  if  the  rival  theory  was  open  to  a  similar  objection. 
According  to  the  rule  that  no  man  may  be  both  lord  and  heir, 
not  only  the  father  but  also  the  elder  brother  might  be  excluded. 
For  instance,  A  enfeoffs  his  younger  son  C,  reserving  homage, 
and  dies ;  C  dies  without  issue ;  his  elder  brother  B  cannot 
inherit  from  C  because  the  lordship  of  C's  lands  has  descended  to 
him  on  the  death  of  A.*  Moreover,  if  the  rule  excluding 
ascendants  rests  upon  this  ground,  the  statute  Quia  Emptores  ^ 
ought  to  have  abolished  it.  Bracton  is  quite  clear  that  if  the 
land  is  not  held  of  the  father,^  or  if  the  father  has  taken  no 
homage  of  his  son,^  the  rule  does  not  apply.  In  such  cases  the 
father  is  not  lord  and  therefore  can  be  heir.  But  this  was  the 
state  of  things  invariably  effected  in  every  case  of  a  conveyance 
in  fee  simple  as  the  result  of  the  statute.     These  are  difficulties 

nunquam  reascendit  ea  via  qua  descendit,  post  mortem  antecessorum.  A  latere  tamen 
ascendit  alicui  propter  defectum  hasredum  inferius  provenientium ;  "  there  is  a  good 
deal  of  very  unprofitable  speculation  on  this  topic  in  RatcHfT's  Case  (1592)  3  Co.  Rep. 
at  ff.  40a,  40b. 

^  Comm.  ii  211,  212.  2  p_  and  M.  ii  286-293. 

2  Hale,  Common  Law  248;  P.  and  M.  ii  286. 

*  Bracton  ff.  65b,  277.  ^  18  Edward  I.  c.  i. 

6  f.  65b.  '  f.  277. 


INHERITANCE  177 

in  the  way  of  this  explanation.  They  are  perhaps  diminished  by 
the  following  considerations.  Britton,  who  wrote  just  after  Quia 
Emptores,  says  positively  that  the  father  can  inherit  from  the  son.^ 
He  probably  thought,  rightly  enough,  that  this  was  the  logical 
result  of  the  fact  that  the  father  who  made  a  gift  to  the  son  in  fee 
simple  was  no  longer  the  son's  lord.  But,  though  there  is  no 
doubt  that  the  effect  of  the  statute  was  to  render  obsolete  the  rule 
that  no  man  can  be  both  lord  and  heir,^  though,  consequently,  the 
elder  was  admitted  to  succeed  to  the  younger  brother,  the  father 
was  not  admitted  to  succeed  to  the  son.  That  this  was  so  was  due 
largely  to  the  fact  that  the  rule  excluding  direct  ascendants  had 
hardened  into  a  positive  rule  of  law.  Partly  perhaps  it  was  due 
to  the  fact  that  other  reasons  had  been  found  for  it.  Perhaps  the 
original  reason  for  the  rule  that  a  man  cannot  be  lord  and  heir 
was  a  feeling  that  it  was  dangerous  to  give  a  lord  an  interest  in 
his  tenant's  death.  It  might  be  dangerous  to  the  tenant  (especially 
if  that  tenant  was  a  minor)  to  allow  the  lord  to  get  his  land  by 
becoming  his  heir.^  The  statute  of  Quia  Emptores  did  away  with 
this  danger  by  making  it  very  unlikely  that  a  lord  could  ever  be 
in  a  position  to  claim  as  heir.  But,  as  Holmes  has  very  truly 
said,* '*  When  ancient  rules  maintain  themselves  .  .  .  new  reasons 
more  fitted  to  the  time  have  been  found  for  them,  and  they 
gradually  receive  a  new  content,  and  at  last  a  new  form,  from  the 
grounds  to  which  they  have  been  transplanted."  We  may  have 
here  an  instance  of  the  application  of  this  principle.  In  most 
cases  there  would  be  no  risk  in  allowing  the  elder  to  succeed  to 
the  younger  brother ;  but  it  may  have  been  thought  dangerous  to 
make  parents  their  children's  heirs.  The  antagonism  of  interest, 
which  may  have  been  at  the  root  of  the  notion  that  a  man  cannot 
be  both  lord  and  heir,  may,  with  the  decay  of  feudal  relations, 
have  taken  this  new  shape. 

(5)  The  inheritance  of  collaterals. 

The  rights  of  collaterals  may  be  regulated  by  either  a 
"gradual"    or   a    "parentelic"  scheme.^     The  law  of  intestate 

^  Britton  ii  319,  325 ;  cp.  note  to  MS.  N  ii  164. 

2  See  P.  and  M.  ii  291,  n.  6. 

2  Cp.  the  statute  de  coheredibus  above  174  n.  9  for  this  feeling  in  the  case  of 
sisters,  who  are  on  this  ground  deprived  of  guardianship  in  favour  of  the  lord. 
Perhaps  also  we  may  see  the  idea  that  as  a  matter  of  public  policy  tenures  are  to  be 
maintained,  not  extinguished,  cp.  Bracton  f.  24,  "  Homagium  non  evanescit  nee 
extinguitur  cum  sint  alii  heredes  cognati  vel  fratres;  "  but  in  later  times,  when  the 
maintenance  of  tenures  ceased  to  be  a  matter  of  public  policy,  the  former  reason 
would  come  to  the  front,  and  lead  to  the  new  form  of  the  rule  excluding  the  direct 
ascendant. 

■*  Common  Law  36. 

'^  P.  and  M.  ii  293  seqq.     See  Bl.  Comm.  ii  207,  208  n.  4  as  to  the  differences  in 
the  methods  of  computation  employed  by  the  civil  and  canon  law  in  working  out  the 
gradual  scheme. 
VOL.  HI.— 12 


178  THE  LAND  LAW 

succession  to  personality  is  regulated  almost  entirely  by  the  first 
scheme,  the  law  of  inheritance  to  realty  by  the  second.  It  will 
help  us  to  understand  this  part  of  the  law  of  inheritance  if  at  the 
outset  I  say  something  of  these  two  schemes. 

According  to  the  gradual  scheme  each  step  in  the  descending 
or  the  ascending  line  is  a  degree.  You  take  a  given  prepositus, 
and  you  reckon  as  a  degree  each  step  from  him  to  the  person 
whose  relationship  to  him  you  are  seeking  to  determine.  Thus  a 
son  is  one  degree  from  his  father,  two  degrees  from  his  brother, 
three  degrees  from  his  brother's  son. 

According  to  the  parentelic  scheme  you  take  a  given  prepositus 
and  exhaust  all  his  descendants — his  parentela.  When  you  have 
exhausted  them  you  take  another  prepositus  and  repeat  the 
process. 

The  following  table  will  illustrate  the  difference  between  the 
two  methods  of  computation  : — 

X 

I 

I        i 


I 
£ 


i 


F. 


Let  O  be  the  prepositus.  O  to  F  =  five  degrees,  reckoning 
up  to  A  and  down  to  F.  O  to  B  =  four  degrees.  Thus  if  you 
reckon  according  to  the  gradual  scheme  B  is  nearer  to  O  than  F. 
Now  let  us  see  what  happens  if  you  reckon  according  to  the 
parentelic  scheme.  Seeing  that  O  has  no  descendants,  you  look 
first  at  C  to  see  if  he  has  any  descendants.  He  has  none.  You 
then  go  to  A  and  take  his  descendants  in  order.  If  D  and  E  be 
dead,  F  will  take  after  O,  for,  as  we  have  seen,  neither  A  nor  C 
can  take  because  they  are  direct  ascendants.  Thus  F,  though 
farther  from  O  than  B,  if  we  reckon  by  the  gradual  scheme,  is 
nearer  if  we  reckon  by  the  parentelic.^ 

Both  the  Year  Books  and  the  text  writers  show  us  that 
it  is  the  parentelic  scheme  which  is  the  basis  of  the  law  of  in- 
heritance. Let  us  take  an  instance  from  one  of  the  earliest 
Year  Books  of  Edward  I.'s  reign.     In  a  case  reported  in  1293  ^ 

^  The  case  of  Clere  v.  Brook  (below  182)  illustrates  the  difference.  Edward 
Clere  was  nearer  by  proximity  of  blood.  To  this  argument  the  defendant  answered 
that  they  were  not  in  one  degree,  so  that  proximity  of  blood  could  not  be  regarded, 
Plowden  448. 

2Y.B.  21,  22Ed.  I.  (R.S.)  36,38. 


INHERITANCE  179 

the  following  pedigree  can  be  constructed  from  the  pleadings  of 
the  parties : — 

X 

I 


Jurdan  Emma 


bert 


j  I  Ro 

Agnes  Jurdan  I 

^1  I  W  (the  plaintiflF) 

Laurence  Thomas 

John 

The  plaintiff  traced  his  claim  from  John,  and  contended  that 
as  neither  Thomas,  nor  Jurdan  the  grandfather,  nor  Jurdan  the 
great-grandfather  had  left  issue,  the  land  must  descend  to  the 
issue — the  parentela — of  X,  of  which  he,  W,  was  the  repre- 
sentative. He  was  met  by  the  assertion  that  **  Jurdan  the  great- 
grandfather had  a  son  named  Jurdan  and  (the  son  had)  a  sister 
named  Agnes,  which  Agnes  had  a  son  named  Laurence,  who  is 
still  alive ;  and  if  there  is  to  be  a  resort,  it  should  be  to  Agnes, 
the  sister  of  Jurdan  the  grandfather  and  to  Laurence,  the  son  of 
Agnes,  rather  than  to  Emma,  the  sister  of  the  great-grandfather." 
The  other  side  could  not  answer  this  reasoning  except  by  the 
averment  that  Agnes  was  illegitimate.  Britton^  thus  states  the 
principle :  "  For  default  of  heirs  who  would  have  made  a  degree 
in  the  direct  line,  the  right  shall  descend  to  one  who  shall  be 
found  in  the  collateral  line,  and  for  default  of  a  degree  in  the 
collateral  line,  the  right  shall  resort  again  to  the  direct  line  at  a 
higher  degree,  and  if  it  find  that  degree  full  it  shall  attach  there ; 
if  not,  it  shall  go  on  descending  in  the  collateral  line,  and  so  of  all 
the  other  degrees." 

But  when  all  a  given  couple's  descendants  are  exhausted,  and 
it  is  necessary  to  have  recourse  to  the  ascending  line,  the  question 
arises.  Are  we  to  ascend  in  the  maternal  or  in  the  paternal  line  ? 
Early  law  answered  this  question  by  the  application  of  the  maxim 
^' paterna paternis,  materna  maternis''  If  the  land  has  descended 
from  the  father  we  ascend  in  his  line ;  if  from  the  mother  we  ascend 
in  her  line.^  But,  having  decided  whether  the  estate  is  to  go  to 
collaterals  ex  parte  paterna  or  ex  parte  materna,  another  difficulty 
awaits  us.  How  are  we  to  decide  between  the  descendants  from 
the  different  ancestors  of  the  father  and  the  mother?  Granted 
that  the  estate  goes  to  collaterals  on  the  father's  side,  how  are  we 
to  decide  between  the  collaterals  which  descend  from  that  father's 

Mi  325. 

^Bracton  f.  64;  P.  and  M.  ii  297,  298;  for  illustrations  of  the  rule  cp.  Y.BB, 
33-35  Ed.  I.  (R.S.)  302  ;  2,  3  Ed.  II.  (S.S.)  81. 


180  THE  LAND  LAW 

two  parents?  Glanvil  does  not  meet  the  difficulty  at  all. ^  He 
does  not  seem  to  contemplate  any  more  remote  relations  than 
uncles  or  aunts.  Bracton  does,  however,  consider  the  case  of 
more  remote  relations ;  but  he  lays  down  no  certain  rules  for  the 
solution  of  this  difficulty.^  The  only  clue  which  we  have  is  the 
TEidLXAm  paterna  paternis^materna  maternis  ;  and  if  we  look  at  the 
ordinary  procedure  by  which  disputes  of  this  kind  were  then 
settled,  we  shall  see  that  this  maxim  will  solve  many  difficulties 
as  to  the  title  of  remote  collaterals.  Moreover,  we  shall  see  that 
this  procedure  emphasized  the  two  fundamental  rules  of  the 
common  law  that  descent  is  traced  from  the  person  last  seised, 
and  that  the  claimant  must  be  of  the  blood  of  the  first  purchaser 
— i.e.  he  must  be  either  descended  from  him  or  from  some 
ancestor  of  his. 

As  between  remote  relations  the  possessory  assize  of  mort 
d'ancestor  did  not  lie.^  Recourse  must  be  had  to  a  writ  of 
right;  and  Bracton  tells  us  that  you  cannot  generally  get  be- 
yond the  sixth  ancestor  because  you  cannot  go  behind  the  time 
limited  for  bringing  a  writ  of  right — a  rule  which  of  course 
became  obsolete  by  the  omission  to  pass  new  statutes  of  limita- 
tion.^ What,  then,  was  the  procedure  on  a  writ  of  right  brought 
by  a  remote  relation  to  recover  his  inheritance  ?  It  was  neither 
the  duel  nor  the  grand  assize;  but  it  was  ''per  narrationem  " — 
i.e.  the  claimant  must  strictly  deduce  his  descent  from  some 
remote  ancestor  who  had  an  undisputed  right.  ^  The  defendant 
must  rebut  the  prima  facie  case  so  raised  by  attacking  the 
pedigree  and  showing  that  he  is  the  nearer  heir.  Thus  the 
procedure  adopted  made  it  necessary  for  a  remote  relation  to 
derive  his  claim,  if  he  could,  from  the  original  purchaser,  or 
from  some  one  as  near  thereto  as  the  existing  statutes  of  limita- 
tion allowed  him  to  go.^  The  court  decided  whether  on  the 
facts  proved  the  plaintiff  or  the  defendant  had  the  better  claim. 
It  did  not  attempt  to  lay  down  abstract  rules  for  determining 
between  conflicting  lines  of  ascendants.  As  in  any  other  case 
of  disputed  ownership,  it  simply  decided  the  question  of  majus 
jus?  Let  us  take  an  illustration  of  the  manner  in  which  these 
rules  worked  from  an  actual  case.     In  a  case  argued  in  1304^ 


2ff.  67,  68 ;  cp.  Fleta  6.  2 ;  Y.B.  39  Ed.  III.  p.  30  per  Finch,  J. 

3  Above  23.  *  Bracton  f.  67 ;  Britton  ii  324. 

5  Bracton  flf.  267,  267b,  268,  279 ;  Y.B.  5  Ed.  II.  (S.S.)  (1312)  165-166  per 
Scrope,  J. 

'^  Ibid  f.  372,  "  Non  enim  sufficit  simpliciter  proponere  intentionem  suam  sic 
dicendo,  Peto  tantam  terram  ut  jus  meum,  nisi  sic  illam  fundaverit  quod  doceat 
ad  ipsum  jus  pertinere,  et  per  quam  viam  et  per  quos  gradus,  jus  ad  ipsum  debeat 
descendere." 

'Above  7,  89-90.  8 Y.B.  32,  33  Ed.  I.  (R.S.)  16-20. 


INHERITANCE 


181 


the    following    pedigree   was    set   out    in    the    pleadings  of  the 
plaintiff: — 

Ralph  Cange 


(i)  Ralph 
(2)  Adam 


(3)  Ralph 

(4)  Ralph 

(5)  Ralph 


(6) 


Mabel 
Robert 

Robert 

I 
Robert 
(Tenant) 


(6)  Alice 

Alexander 

Jonette 

Robert  de  Meringe 
(Plaintifif) 


The  plaintiff  showed  how  that  the  land  had  descended  in 
the  order  indicated  by  the  numbers,  and  complained  that  whereas 
he,  as  representing  Alice,  ought  to  have  half,  Robert,  the  tenant, 
had  kept  possession  of  the  whole.  Robert's  answer  was  that 
this  pedigree  was  wrong,  because  Mabel  was  really  the  daughter 
of  Ralph  (4),  and  the  sister  of  Ralph  (5) ;  and  thus,  '*  since  he  is 
issue  of  Mabel,  who  is  of  the  blood  in  a  lower  degree,  judgment, 
if  he  ought  to  be  answered  on  his  resort  which  he  has  made  to 
one  of  the  blood  higher  up."     Issue  was  joined  on  this  averment. 

That  the  law  thus  managed  to  get  on  well  enough  without 
any  very  determinate  rules  as  to  the  rights  of  remote  collaterals 
was  no  doubt  due  to  the  fact  that  cases  in  which  the  rights  of 
such  collaterals  come  into  question  are  not  of  common  occurrence. 
But  in  Edward  IIl.'s  reign  a  case  arose  to  which  the  existing 
rules  gave  no  clear  answer.  It  was  for  this  reason  an  important 
case,  and  its  importance  is  shown  by  the  fact  that  the  Year 
Books  give  us  two  reports  of  it^  A  man  purchased  land  and 
died  seised  thereof  without  descendants,  and  without  heirs  on 
the  part  of  his  father.  The  bailiffs  of  the  town  of  C.  claimed 
this  land  as  an  escheat.  The  plaintiff  claimed  to  inherit  as 
heir  on  the  part  of  the  purchaser's  mother,  and  judgment  was 
given  for  him.  Tank,  J.,  said,  ''When  the  land  once  comes 
into  the  blood  of  the  father  by  the  descent  of  the  inheritance, 
there  is  no  doubt  that  it  will  not  resort  back  to  the  blood  of 
the  mother ;  and  the  same  is  true  of  the  converse  case.  It 
will  rather  escheat  to  the  lord,  because,  as  the  land  comes  down 
from  the  person  who  had  it,  it  is  reason  that  it  be  continued  in 
that  person's  blood.  But  when  the  land  comes  to  a  man  by 
his  own  purchase,  and  has  not  descended  to  him,  but  he  is 
the  beginning  of  this  inheritance ;  in  that  case  when  his  father's 
branch  fails  it  is  reasonable  that  it  descend  to  the  heirs  on  the 
part  of  the  mother  rather  than  that  it  should  escheat  to  the  lord." 


^Y.B.  49  Ed.  III.  Pasch.  pi.  5;  49  Ass.  pi.  4,  the  decision  was  in  accordance 
with  the  law  as  laid  down  by  Finch^  J.,  in  39  Ed,  III,  Mich.  p.  30, 


182  THE  LAND  LAW 

This  decision  was  followed  in  Edward  IV.'s  reign. ^  We  may 
gather,  therefore,  from  these  cases  that,  on  failure  of  descend- 
ants, collaterals  on  the  father's  side  would  inherit;  and  that, 
on  failure  of  collaterals  on  the  father's  side,  collaterals  on  the 
mother's  side  would  inherit,  provided  in  either  case  that  these 
collaterals  were  of  the  blood  of  the  first  purchaser. 

But  the  Year  Books  still  kept  open  the  question  as  to  the 
priority  between  the  various  ascendants  on  the  father's  or  the 
mother's  side.  This  question  was  discussed  in  1573  in  the 
case  of  Clere  v.  Brook?  The  pedigree  in  that  case  was  as 
follows : — 

John  Young  John  Clere 

I  I 

Humphrey  Young  Dorothy  Edward  Clere 

Edward  Young  Willie  Hadden  =  Margaret 

Clere  Hadden 
(the  purchaser). 

The  question  to  be  decided  was  whether  Edward  Young 
or  Edward  Clere  was  the  heir  to  Clere  Hadden  the  purchaser. 
It  was  held  that  Edward  Young  was  the  heir,  because  the 
ascendants  in  the  paternal  line  and  their  descendants  must 
be  exhausted  before  recourse  can  be  had  to  the  mother  and 
the  maternal  ascendants.  So  far  the  decision  followed  the 
Year  Book  cases,  and  added  nothing  to  the  law.  But  Manwood, 
C.R,  ventured  on  the  dictum,  assented  to  by  the  judges  of  the 
court  of  Common  Pleas,^  that  if  there  is  only  a  question  as 
between  paternal  ancestors,  the  descendants  of  the  less  remote 
female  paternal  ancestor  will  be  preferred  to  the  descendants 
of  the  more  remote  female  paternal  ancestor.  For  instance, 
the  brother  or  sister  of  the  purchaser's  grandmother  will  be 
preferred  to  the  brother  or  sister  of  the  purchaser's  great- 
grandmother.  This  dictum  seems  at  the  time  to  have  been 
accepted  as  good  law.  Thus  Bacon  says,*  *'In  the  first  degree 
the  law  respecteth  dignity  of  sex  and  not  proximity ;  and  there- 
fore the  remote  heir  on  the  part  of  the  father  shall  have  it  before 
the  near  heir  on  the  part  of  the  mother ;  but  in  any  degree  para- 
mount the  firsts  the  law  respecteth  it  not ;  and  therefore  the  near 
heir  of  the  grandmother  on  the  part  of  the  father  shall  have  it 
before  the  remote  heir  of  the  grandfather  on  the  part  of  the 
father; "  and  the  law  is  so  stated  by  Hale.^ 

J  Y.B.  12  Ed.  IV.  Mich.  pi.  12.  2  piowden  442. 

2  Ibid  at  p.  451.  "*  Works  (ed.  Spedding)  vii  328. 

^Common  Law  271,  272,  "  The  father's  mother's  sister  shall  be  preferred  before 
the  father's  grandmother's  brother  .  .  .  because  they  are  all  in  the  female  line 
and  the  father's  mother's  sister  is  the  nearest." 


INHERITANCE  183 

But,  after  all,  this  opinion  really  rested  on  a  dictum,  and, 
as  Plowden  and  others  saw,  it  was  not  a  very  logical  dictum. 
He  tells  us  that  he  afterwards  put  it  to  the  judges  of  the  court 
of  Common  Pleas  that,  from  the  actual  decision  in  the  case, 
the  correct  deduction  was  that  the  descendants  of  the  more 
remote  female  paternal  ancestor  should  be  preferred  to  the 
descendants  of  the  less  remote  female  paternal  ancestor.  For, 
if  the  brother  of  the  purchaser's  grandmother  is  preferred  to 
the  brother  of  the  purchaser's  great-grandmother  why  should 
not  the  brother  of  the  purchaser's  mother  be  preferred  to  the 
brother  of  the  purchaser's  grandmother? — and  in  that  case 
Edward  Clere  would  have  succeeded.^  But  the  judges  adhered 
to  their  opinion.  They  had  followed  the  older  cases  in  giving 
the  preference  to  the  paternal  ascendants.  They  were  not 
inclined  to  carry  this  preference  of  male  to  female  any  further 
than  they  were  obliged,  even  to  satisfy  the  claims  of  logic.^ 
But  the  claims  of  logic  found  a  champion  in  Blackstone.^  He 
had  no  difficulty  in  showing  that  the  logical  consequence  of  the 
decision  in  Clere  v.  Brook,  and  of  the  other  rules  of  inheritance, 
was  to  give  the  preference  to  the  descendants  of  the  more 
remote  female  paternal  ancestor  rather  than  to  the  descendants 
of  the  less  remote.  Largely  in  consequence  of  his  advocacy 
the  logical  view  has  received  the  sanction  of  the  legislature.* 

(6)  The  position  of  the  half  blood. 

In  the  thirteenth  and  early  fourteenth  centuries  the  posi- 
tion of  the  half  blood  in  the  scheme  of  inheritance  was  very 
uncertain.  In  the  first  place,  the  position  of  the  half  blood  is 
not  immediately  obvious,^  and  that  is  a  position  which  easily 
leads  to  the  formation  of  an  arbitrary  and  even  an  accidental 
rule.  In  the  second  place,  the  question  was  obscured  by  the 
fact  that  the  mode  in  which  brothers  and  sisters  succeeded  to 
one   another    differed    from    the  mode  in  which  other  relations 

^  Plowden  451,  "  Many  were  of  opinion  that,  because  there  was  no  nearer  heir 
of  the  male  line,  the  brother  of  the  grandmother  should  not  be  preferred  (as  Justice 
Manwood  had  said)  but  that  the  brother  of  the  great-grandmother  should  be 
adjudged  heir,  for  his  blood  is  derived  from  the  purchaser  by  two  males,  viz.  by 
his  father  and  grandfather,  whereas  the  blood  of  the  brother  of  the  grandmother  is 
derived  from  the  purchaser  but  by  one  male,  and  the  grandfather  was  not  of  the 
blood  of  the  brother  of  the  grandmother,  but  he  was  of  the  blood  of  the  brother  of 
the  great-grandmother,  and  therefore  such  blood  is  more  worthy." 

'^  Just  as  the  rule  of  representation  was  not  at  once  accepted  in  the  case  of  near 
relations  (above  175) ;  so  the  preference  of  males  to  females  was  not  at  first  applied 
to  the  case  of  remote  relations. 

2  Comm.  ii  238,  239  and  Christian's  note. 

43,  4  William  IV.  c.  106  §8. 

°P.  and  M.  ii  303,  "We  cannot  say  nowadays  that  there  is  any  obviously 
proper  place  for  the  half  blood  in  a  scheme  of  inheritance,  especially  in  our 
parentelic  scheme." 


184  THE  LAND  LAW 

succeeded  to  one  another.  Brothers  and  sisters,  according  to 
Bracton,  had  an  equal  right  to  the  possession;  and  the  assize 
of  mort  d'ancestor  did  not  lie  between  them.^  So  intimate 
was  the  union  between  parceners  that  they  did  not  inherit  from 
each  other,  but  took  like  joint  tenants  in  modern  times,  "  by  a 
kind  of  right  called  that  of  accruer."^  Those  related  by  the 
half  blood,  however,  had  no  such  equal  right,  and  were  regarded 
as  taking  by  inheritance  from  those  of  the  whole  blood.  ^  But 
neither  Bracton,  Britton,  nor  Fleta  knew  any  certain  rules  as 
to  the  order  in  which  they  ought  to  succeed.  The  only  principle 
which  they  apply  seems  to  be  the  old  principle  paterna  paternis^ 
materna  maternis.  Thus,  the  sister  of  the  whole  blood  will 
succeed  to  the  brother,  if  the  brother  is  the  purchaser ;  but  if 
the  common  father  is  the  purchaser,  brother  and  sister  succeed 
to  the  paternal  inheritance  as  if  they  had  both  sprung  from 
the  same  mother.'^  On  the  other  hand,  if  the  inheritance  is 
the  mother's,  a  daughter  of  hers  will  be  preferred  to  a  son  by 
a  second  wife.^  But  the  son  may  succeed  to  the  daughter 
after  the  death  without  issue  of  all  the  children  of  the  first  wife.*^ 

The  growth  of  the  two  rules  that  the  heir  must  be  (i)  the 
heir  of  the  person  last  seised,  and  (2)  of  the  blood  of  the  first 
purchaser,  cleared  this  confusion  and  settled  the  position  of  the 
half  blood. 

When  it  was  settled  that  descent  must  be  traced  from  the 
person  last  seised  it  became  clear  that,  if  the  common  father  was 
the  person  last  seised,  a  half-brother  could  succeed  to  him  on  the 
death  of  the  half-brother.  There  can,  of  course,  be  no  question 
of  the  half  blood  as  between  ancestor  and  descendant.'''  It  was 
for  this  reason  that  half  blood  could  always  succeed  to  half  blood 
in  the  case  of  an  estate  tail,  because  in  the  case  of  these  estates 
descent  was  always  traced  from  the  purchasing  ancestor.^  But  if 
the  person  last  seised  was  the  son,  his  brother  by  the  half  blood 
could  not  succeed  to  him,  because  he  was  a  collateral  and  not 
necessarily  of  the  blood  of  the  first  purchaser.  Thus  the  sister 
of  the  whole  blood  succeeded  to  the  brother  of  the  whole  blood 
— possessio  fratris  facit  sororem  esse  heredeni.  Half  blood  could 
not  succeed  to  half  blood ;  the  land  would  sooner  escheat,  because 

1  ff.  64b,  65,  267.  '  Britton  ii  73,  316. 

3  Bracton  f.  65b,  "  Poterint  haeredes  esse  pares,  cum  fuerint  de  uno  patre  vel 
de  una  matre  a  quibus  jus  descendit.     Si  autem  de  diversis  tunc  impares." 

4  Bracton  f.  66b ;  Fleta  6.  i.  13. 

5  Bracton  f.  65  ;  Fleta  6.  i.  14;  Britton  ii  317,  318. 
''Ibid  316,  317  ;  Bracton  f.  66b. 

'  Bracton  distinguishes  the  case  where  the  land  was  an  acquisition  from  the 
common  father  from  the  case  where  it  was  an  acquisition  of  the  brother,  f.  66b. 

8Y.BB.  4  Ed.  II.  (S.S.)  58-59;  5  Ed.  II.  147;  6,  7  Ed.  II.  (S.S.)  73-74;  12  Ed. 
11.380. 


CURTESY  185 

they  were  collateral  kinsmen,  and  not  necessarily  of  the  blood  of 
the  first  purchaser.  We  have  seen  that  as  late  as  Edward  III.'s 
reign  it  had  been  contended  that  there  ought  to  be  an  escheat 
when  the  first  purchaser  died  seised  leaving  only  maternal  kin  ;  ^ 
it  is  not  altogether  surprising  that  this  contention  was  sanctioned 
when  the  kin  were  not  clearly  of  the  blood  of  the  first  purchaser. 
The  rule  had  been  practically  reached  in  Edward  I.'s  reign,^  cer- 
tainly by  Edward  II. 's  reign.^  It  is  stated  in  its  modern  form 
by  Littleton.'^ 

The  rule,  then,  was  a  deduction  from  the  two  premises  that 
the  heir  must  make  himself  heir  to  the  person  last  seised,  and 
that  he  must  be  clearly  of  the  blood  of  the  first  purchaser.  As 
Blackstone  pointed  out,  it  was  not  an  altogether  logical  deduc- 
tion.^ Granted  that  a  relation  of  the  half  blood  is  not  clearly  of 
the  blood  of  the  first  purchaser,  there  is  at  least  a  chance  that 
he  may  be ;  and  a  chance  as  great  as  that  of  a  relation  of  the 
whole  blood  in  a  remote  degree,  e.g.  the  half-brother  has  the 
same  chance  of  being  descended  from  the  purchasing  ancestor  as 
the  uncle.  Moreover,  the  rule  was  especially  unreasonable  when 
the  ancestor  of  both  brothers  was  known,  and  when,  therefore, 
they  were  both  equally  likely  to  be  of  the  blood  of  the  first 
purchaser. 

The  rule  made  for  escheats. '^  It  made  clear  law  where  before 
all  was  vague.  But  it  was  barely  logical,  and  it  was  productive 
of  such  great  hardship  that  even  Blackstone  recommended  its 
alteration.'' 

§  9.  Curtesy  and  Dower 

Curtesy 

The  husband  after  the  death  of  the  wife  may  be  entitled  to 
an  estate  by  the  curtesy.  If  no  child  has  been  born  of  the 
marriage  the  wife's  real  estate  descends  to  her  heirs.  The 
husband  has  no  claim  to  it.      If  a  child  has  been  born  of  the 

^  Above  181. 

^Y.B.  21,  22  Ed.  I.  (R.S.)  552 — Hyham,  a r^.,  says,  "We  freely  admit  that 
Alice  died  seised ;  but  from  Alice  to  Laurence  as  brother  nothing  could  descend, 
because  they  were  not  of  the  same  venter ;  there  would  sooner  be  an  escheat ;  "  but 
the  rule  was  not  quite  fixed,  cp.  Y.B.  32,  33  Ed.  I.  (R.S.)  444. 

3Y.BB.  3,  4  Ed.  II.  (S.S.)  25;  5  Ed.  II.  148;  6  Ed.  II.  (S.S.)  198;  6,  7  Ed. 
II.  (S.S.)  yoper  Bereford,  C.J. ;  12  Ed.  II.  380;  19  Ed.  II.  628— in  these  cases  the 
rule  is  accepted ;  the  dispute  is  as  to  the  person  from  whom  the  descent  is  to  be 
traced ;  in  the  last  case  Scrope  makes  the  question  whether  the  brother  of  the  half 
blood  can  inherit  depend  entirely  on  the  question  whether  the  sister  has  died  seised. 
The  rule  is  clearly  explained  by  Finch,  J.,  in  Y.B.  39  Ed.  III.  p.  30;  cp.  14  Ed.  Ill, 
(R.S.)  120  per  Schardelowe. 

^§8.  ^Comm.  ii  230,  231.; 

"  P,  and  M,  ii  303,  '  Comm,  ii  233, 


186  THE  LAND  LAW 

marriage  who  was  capable  of  inheriting  the  wife's  lands,  the 
husband  is  entitled  to  an  estate  in  the  whole  of  the  wife's  lands 
for  his  life.  This  estate  is  called  tenancy  by  the  curtesy,  or 
tenancy  by  the  law  of  England.  Blackstone  derives  the  word 
"curtesy"  from  ''curialitas; "  he  says  that  it  means  an  atten- 
dance upon  the  lord's  court  or  curtis.  '*  As  soon  as  any  child 
was  born  the  father  began  to  have  a  permanent  interest  in  the 
lands,  he  became  one  of  the  pares  curtis,  did  homage  to  the  lord, 
and  was  called  tenant  by  the  curtesy  initiate."^  As  Maitland 
has  shown,  this  derivation  is  rather  ingenious  than  true.^  (i)  To 
say  that  it  is  connected  with  homage  and  attendance  on  the  lord's 
court  contradicts  Littleton.^  Littleton  says  that  homage  need 
not  be  done  for  a  life  estate ;  and  therefore,  if  the  husband  delay 
homage  till  the  wife's  death,  he  need  not  do  homage  at  all.  (2) 
The  name  "  tenancy  by  the  law  of  England "  would  seem  to 
emphasize  its  peculiarity  to  England.*  Britton  calls  it  "  une 
especialite  graunte  par  ley  en  Engleterre  et  en  Hyrelaunde."  ^ 
The  name  "curtesy"  would  seem  to  emphasize  the  liberality  of 
the  right ;  and  the  liberality  of  the  right  is  the  point  which  would 
strike  a  lawyer  who  was  comparing  it  with  the  analogous  custom 
of  Normandy.^  In  Normandy,  if  a  child  was  born,  the  husband 
took  the  wife's  estate,  but  he  lost  it  if  he  married  again.  From 
another  point  of  view,  too,  it  is  a  liberal  right.  It  gives  the 
husband  the  land  and  defeats  the  lord's  right  of  wardship.''' 

What,  then,  was  the  origin  of  this  right?  Old  customs 
regulate  in  many  different  ways  the  rights  of  the  husband  in  his 
wife's  land  after  his  wife's  death. ^  Thus  by  the  gavelkind  custom 
of  Kent  and  by  some  copyhold  customs  the  survivor,  whether 
husband  or  wife,  is  entitled  to  half  the  other's  lands. ^  This  right 
is  often  called  free  bench — though  in  some  manors  the  name 
"  free  bench  "  is  appropriated  to  widow's  right.  But  this  right 
ceases  if  the  husband  marries  again.  Perhaps  in  old  days  the 
husband  may  have  got  his  right  as  guardian  of  his  children.  But 
a  later  age  separates  the  right  of  the  husband  as  guardian  from 
his  personal  right  to  his  deceased  wife's  land.^^  Thus  in  Kent 
he  may  take  one  half  during  minority  as  guardian,  and  the  other 
half  while  he  remains  unmarried  as  widower. 

It  is  probable  that  the  rules  laid  down  by  the  king's  courts 

^  Bl.  Comm.  ii  126,  127.  ^  P.  and  M.  ii  412.  ^§  go. 

^Bl.  Comm.  ii  126  n.  4;  P.  and  M.  ii  413.  ^i  220. 

^  P.  and  M.  ii  413.  In  many  places  the  husband  was  given  no  rights  at  all, 
Brissaud  ii  1658. 

"'  P.  and  M.  ii  415. 

^  For  the  various  older  continental  customs  see  Brissaud  ii  1649-1653. 

^  Robinson,  Gavelkind  128,  129;  cp.  Borough  Customs  (S.S.)  ii  cvii-cxi  for  the 
customs  observed  in  the  boroughs. 

^^  P,  and  M.  ii  416,  417. 


J 


CURTESY  187 

were  based  upon  some  such  indeterminate  rules  as  these.  The 
idea  that  the  widower  takes  as  guardian  may  be  represented  by 
the  rule  that  required  the  birth  of  issue.  ^  But  the  modern  rule, 
as  developed  by  the  common  law,  diverged  widely  from  the 
primitive  customary  rules  in  the  interests  of  simplicity.  The 
same  set  of  ideas  which  made  for  the  impartibility  of  inherit- 
ances^ made  for  the  rule  which  gave  the  whole  estate  to  the 
husband  for  his  life;  and  the  desire  to  secure  simplicity  and 
uniformity  made  for  the  extension  of  the  husband's  right  to  the 
case  when  the  child  had  died.  In  many  cases  it  would  be  far 
easier  to  prove  the  fact  of  birth  to  a  jury  of  the  neighbourhood 
than  the  fact  of  death.  The  idea  of  guardianship  is  only  one  of 
the  ideas  underlying  the  husband's  right.  If  in  conformity  with 
that  idea  we  deprive  him  of  his  rights  in  the  event  of  no  child 
being  born,  we  compensate  him  by  giving  him  the  estate  for  his 
whole  life  if  a  child  has  been  born ;  and  we  cannot  stop  to  inquire 
whether  or  no  that  child  has  died.  The  common  law  in  laying 
down  its  general  rules  has  made  other  rough  compromises  of  a 
similar  kind.^  Thus  the  common  law  extended  the  husband's 
right ;  and  so  courteously  and  liberally  was  it  inclined  to  push 
this  policy  that  a  statute  was  needed  to  define  its  limits.  It  had 
been  held,  after  some  conflict  of  opinion,*  that  a  second  husband 
could  hold  for  his  life  even  his  wife's  marriage  portion  (i.e.  lands 
given  to  her  and  the  heirs  of  her  body  by  her  first  husband)  as 
against  the  issue  of  her  first  husband.  The  Statute  De  Donis'^ 
enacted  that  for  the  future  ^  the  second  husband  should  have  no 
right  to  curtesy  in  respect  of  such  lands. 

The  four  conditions  precedent  for  the  existence  of  an  estate 
by  the  curtesy  are  marriage,  seisin  of  the  wife,  issue,  and  death 
of  the  wife."  I  have  already  said  something  of  the  first  requisite. 
The  temporal  courts  often  required  that  there  should  be  some 
open  and  notorious  act — ''some  act  in  pays" — from  which  the 
jury  could  infer  the  existence  of  the  marriage.  The  mere  consent 
of  the  parties,  which  was  sufficient  for  the  canon  law,  was  not 
always  enough  for  the  king's  court.  ^  The  other  two  requisites 
about  which  a  word  must  be  said  are  the  requisites  (l)  of  the 
wife's  seisin,  and  (2)  of  the  child's  birth,  (i)  The  wife  must  be 
seised  of  such  an  estate  of  inheritance  as  the  issue  which    the 

^  Bl.  Comm.  ii  126;  P.  and  M.  ii  417. 
'-^  Above  172-173. 

^  See  e.g.  above  80  as  to  freedom  of  alienation ;  above  75  as  to  freedom  of 
testation  ;  vol.  i  628,  629  as  to  the  limits  of  lay  and  ecclesiastical  jurisdiction. 

*  Bracton  f.  43713;  P.  and  M.  ii  414  and  authorities  there  cited. 
°  13  Edward  I.  st.  i  c.  i. 

*  The  statute  was  not  retrospective,  Y.BB.  21,  22  Ed.  I.  (R.S.)  276;  30,  31  Ed. 
I.  (R.S.)  126. 

'  Bl.  Comm.  ii  127.  ^  Vol,  i  622. 


188  THE  LAND  LAW 

husband  has  by  her  may  by  possibility  inherit ;  ^  and  the  estate 
must  be  in  possession.  There  can  be  no  curtesy  of  a  reversion 
or  a  remainder  unless  it  vests  in  possession  during  the  marriage. 
A  mere  seisin  in  law  will  not  suffice.  No  doubt  the  reason  for 
the  rule  requiring  an  actual  seisin  is  based  partly  on  the  general 
principle  that  a  husband,  like  any  one  else  not  actually  seised, 
has  nothing ;  and  having  nothing  of  his  wife's,  nothing  can  sur- 
vive to  him.^  Partly  it  is  based  on  motives  of  policy.  It  was  a 
rule  which  induced  husbands  to  make  every  effort  to  get  seisin 
in  an  age  when  the  getting  of  seisin  was  often  difficult  and  dan- 
gerous.^ The  latter  reason  appears  to  have  predominated  in 
Coke's  day.*  If  it  was  quite  impossible  to  get  seisin  this  requisite 
ceased  to  be  essential.  If,  for  instance,  the  wife  had  an  advowson 
or  the  right  to  receive  a  rent,  and  the  wife  died  before  the  church 
fell  vacant  or  the  rent  fell  due,  the  husband  was  excused.^  (2) 
The  issue  must  have  been  born  alive.  ^  The  older  authorities  say 
that  it  must  have  been  born  and  heard  to  cry  within  the  four 
walls,  because  this  was  in  early  days  regarded  as  almost  necessary 
evidence  of  the  vitality  required.^  It  must  also  be  such  an  heir 
as  the  common  law  will  recognize.  That  is,  it  must  be  born  of 
a  marriage  recognized  by  the  royal  courts  and  during  the  sub- 
sistence of  such  marriage.  Subsequent  marriage  will  not  make 
a  child  born  before  the  marriage  legitimate  for  the  purpose  of 
succeeding  to  English  land.^ 

The  later  history  of  curtesy  may  be  briefly  dismissed.  It 
was  originally  doubtful  whether  the  husband  could  claim  curtesy 
if  the  estate  of  the  wife  was  equitable.  The  Doctor  and  Student'^ 
states  that  one  reason  for  the  prevalence  of  uses  was  "to  put  away 
tenancy  by  the  curtesy."  But  it  is  now  settled  law  that  the  hus- 
band is  entitled  to  curtesy  out  of  his  wife's  equitable  estates  under 
the  same  conditions  as  he  is  entitled  to  curtesy  out  of  her  legal 
estates.  ^*^     This  gives  the  husband  the  right  to  curtesy  out  of  the 

iLitt.  §52.  ''Above  92. 

3  Williams,  Real  Property  (17th  ed.)  App.  D. 

*Co.  Litt.  31a,  "It  lieth  not  in  the  power  of  the  wife  to  bring  it  to  an  actual 
seisin  as  the  husband  may  do  of  his  wife's  lands  when  he  is  to  be  tenant  of  the 
curtesy;"  for  another,  baseless  reason,  founded  on  the  necessity  for  the  seisin  of 
the  wife  if  her  child  was  to  be  heir  to  her,  see  Co.  Litt.  40a ;  Bl.  Comm.  ii  128 ; 
Williams,  Real  Property  App.  D. 

'^Co.  Litt.  2ga;  a  curious  modern  instance  of  the  application  of  this  principle 
will  be  found  in  the  case  of  Eager  v.  Furnival  {188 1)  17  CD.  115  ;  The  Doctor  and 
Student  ii  c.  15  seems  to  regard  the  rule  as  merely  arbitrary. 

'  Litt.  §  35. 

'  Ibid;  Bracton  f.  438 ;  Y.B.  20,  21  Ed.  I.  (R.S.)  38,  "  Note  that  in  order  that 
the  husband  may  hold  the  inheritance  of  his  wife  by  the  Curtesy  of  England  by 
reason  of  issue  between  them,  it  is  necessary  that  the  issue  be  heard  to  cry  or  squall 
within  the  four  walls." 

^Vol.  i  622;  vol.  ii  218  n.  i.  "  ii  22, 

1"  Cz^sborne  v,  Scarfe  (1737)  i  Atk.  603, 


DOWER  189 

separate  estate  of  his  wife,  whether  such  separate  estate  is  settled 
by  express  limitation  ^  or  arises  under  the  Married  Women's  Pro- 
perty Acts/^  provided  that  the  wife  has  made  no  disposition  of  it 
by  her  will. 

Dower 

The  wife,  after  the  death  of  her  husband,  is  entitled  to  dower. 

We  have  seen  that  in  the  Anglo-Saxon  period  the  rights  of  the 
wife  depended  upon  the  settlement  made  by  the  husband  or  his 
relatives  at  the  marriage.^  At  the  end  of  this  period  the  wife's 
right  to  dower  has  become  a  right,  given  to  every  married  woman 
by  law,  to  a  third  of  the  land  for  her  life  of  which  her  husband 
has  ever  been  solely  seised  during  the  marriage  for  an  estate  of 
inheritance  to  which  issue  of  the  wife  by  the  husband  might  by 
possibility  inherit ;  ^  and  of  this  right  she  cannot  be  deprived  by 
any  alienation  made  by  the  husband.  She  can  only  be  deprived 
of  it  for  certain  defined  causes  and  in  certain  defined  ways  which 
are  very  limited  in  number.  But  even  at  the  end  of  this  period, 
though  this  common  law  dower  was  by  far  the  most  usual  form, 
certain  survivals  still  existed  which  show  us  that  it  had  only 
gradually  prevailed  over  other  and  older  modes  of  providing  for 
the  wife's  interests. 

Littleton^  tells  us  that  there  are  five  kinds  of  dower,  viz. 
"dower  by  the  common  law,  dower  by  the  custom,  dower  ad 
ostium  ecclesicEy  dower  ex  assensu  patris,  and  dower  de  la  pluis 
beale"  Neglecting  for  the  moment  the  last  species  of  dower,*' 
we  may  say  that  the  other  four  species  fall  into  two  classes:  (i) 
those  created  by  the  act  of  the  parties,  and  (2)  those  created  by 
law.  Into  the  first  class  fall  the  dower  ad  ostium  ecclesice  and 
the  dower  ex  assensu  patris  ;  into  the  second  class  fall  dower  by 
the  common  law  and  dower  by  the  custom.  These  two  classes 
represent  respectively  the  old  order  and  the  new ;  and  in  this 
order  I  shall  describe  them. 

(i)  The  old  order — dower  created  by  the  act  of  the  parties. 

Both  Glanvil ''  and  Bracton  ^  speak  of  dower  as  a  gift  by  the 
husband,  which  it  is  his  duty  to  make.     It  might  consist  either 


1  Cooper  V.  Macdonald  {1877)  7  CD.  288,  295. 

2  Hope  V.  Hope  [1892]  2  Ch.  336. 


3  Vol.  ii  88-90.  ^  Below  193. 

5§  51.  8  Below  192. 

'vi  c.  I,  "  Dos  enim  dicitur  vulgariter  id  quod  aliquis  liber  homo  dat  sponsae 
suae  ad  ostium  ecclesiae  tempore  desponsationis  suas.  Tenetur  quisque  tam  jure 
ecclesiastico  quam  jure  seculari  sponsam  suam  dotare  tempore  desponsationis." 

8  f.  92,  "  Sciendum  quod  dos  est  id  quod  liber  homo  dat  sponsae  suae  ad  ostium 
ecclesiae,  propter  nuptias  futuras  ...  si  vir  praemoriatur." 


190  THE  LAND  LAW 

of  land  or  of  chattels  ;  ^  but  it  would  not  comprise  property  of 
the  husband  acquired  after  the  marriage  unless  there  had  been  a 
special  stipulation  to  this  effect  at  the  time  of  the  marriage.^  If 
the  amount  were  not  specified  it  would  be  a  third  of  the  husband's 
land.  It  could  not  be  more  in  the  time  of  Glanvil ;  ^  and  the  rule 
was  the  same  in  the  time  of  Bracton  if  the  lord  objected.*  In 
the  course  of  the  thirteenth  and  fourteenth  centuries  these  rules 
were  modified.  In  the  first  place,  the  dower  of  chattels  disap- 
peared. We  shall  see  that  the  married  woman  could  own  no 
chattels — that  marriage  was  regarded  as  a  gift  of  the  wife's 
chattels  to  the  husband.^  We  shall  see  that  in  the  fourteenth 
century  the  wife's  common  law  right  to  dower  overrode  the 
husband's  power  to  alienate.^  Therefore  to  have  allowed  dower 
out  of  chattels  would  have  fettered  his  powers  of  free  alienation 
and  have  cast  doubts  upon  his  absolute  ownership.  It  was  for 
these  reasons  that  the  dower  of  chattels  was  pronounced  to  be 
legally  impossible  in  Henry  IV's  reign."  In  the  second  place, 
the  limitations  upon  the  amount  of  the  named  dowers  disappeared. 
These  limitations  were  beginning  to  disappear  even  when  Bracton 
wrote — the  lord,  as  we  have  seen,  could  complain  of  a  larger  gift, 
but  a  larger  gift  was  not  illegal  if  the  heir  consented.^  They  had 
quite  disappeared  when  Littleton  wrote. ^  In  his  day  the  named 
dowers  had  fallen  into  the  two  classes  above  mentioned. 

The  endowment  ad  ostium  ecclesics  was  made  by  the  husband 
himself  "  When  a  man  of  full  age  seised  in  fee  simple,  who 
shall  be  married  to  a  woman,  and  when  he  cometh  to  the  church 
door  to  be  married,  there,  after  affiance  and  troth  plighted  between 
them,  he  endoweth  the  woman  of  his  whole  land,  or  of  the  half, 
or  other  lesser  part  thereof,  and  there  openly  doth  declare  the 
quantity  and  certainty  of  the  land  which  she  shall  have  for  her 
dower."  ^^  It  takes  us  back  to  Anglo-Saxon  days — to  the  settle- 
ment made  by  the  husband  on  the  wife  which  is  evidenced  by  the 

^  Glanvil  vi  cc.  i,  2;  Bracton  £.94;  a  writ  '*de  dote  in  denariis  "  is  found  in  a 
MS.  Register  of  the  early  years  of  Edward  I.'s  reign,  vol.  ii  App.  Vd  12,  H.L.R.  iii 
215  ;  and  this  writ  also  appears  in  the  printed  Register  f.  170b — a  proof  of  the  early 
period  at  which  it  became  stereotyped,  vol.  ii  514. 

2  Glanvil  vi  c.  2 ;  Bracton  f.  95b.  ^  vi  cc.  i,  2. 

*  f.  93.  ^  Below  526-527.  ^  Below  193-194. 

'  Y.B.  7  Hy.  IV.  Pasch.  pi.  10,  '•  Markham. — Ceo  ne  fuit  unques  nostre  ley  que 
feme  serra  endowe  des  biens  sa  baron ;  mes  auter  est  per  le  ley  civil,  pur  ceo  que 
la  elle  ne  serra  endowe  des  terres,  mes  per  nostre  ley  elle  serra  endowe  de  terre,  et 
nemy  des  biens.  Thirning. — Per  nul  maner  de  droit  feme  ne  poit  aver  droit  d'estre 
endowe  des  biens  sa  baron,  et  le  cause  est  pur  ce  que  le  baron  poit  aliener  touts  ses 
biens,  et  elle  apres  son  mort  n'avera  action  a  demander  ascun  parcel  d'iceux." 

8  f.  93  ;  the  lord  might  complain,  but,  "  secus  esset  si  haeres  hoc  fecerit  sciens  et 
prudens." 

9  §§  39  and  41. 
^^  Litt.  §  39 ;  for  a  case  which  turned  upon  this  variety  of  dower  see  Y.B.  6,  7 

Ed.  II.  (S.S.)  235. 


DOWER  191 

forms  which  the  church  employs  to  consecrate  the  union.  ^  The 
endowment  ex  assensu  patris  met  the  case  where  tlie  son  and  heir- 
apparent  (who  as  yet  has  nothing  in  the  land)  is  marrying  with 
the  approval  of  his  father.  In  such  a  case  the  son  "  endoweth  his 
wife  at  the  monastery  or  church  door  of  parcel  of  his  father's 
lands  or  tenements  with  the  assent  of  his  father  and  assigns  the 
quantity  of  parcels."^  It  seems  to  have  been  much  used  in  the 
thirteenth  and  early  fourteenth  centuries.^  No  doubt  its  popu- 
larity was  due  to  the  complete  power  which  the  father  had 
acquired  to  defeat  the  claims  of  his  heirs  by  alienation  in  his  life- 
time.'^ In  both  these  forms  of  dower  the  solemnization  of  the 
marriage  at  the  church  which  accompanied  the  gift  was  sufficient 
evidence  of  it  in  the  thirteenth  and  early  fourteenth  centuries  ;  ^ 
but  later  in  Edward  III.'s  reign  a  deed  was  required  in  the  case 
of  dower  ex  assensu  patris.^  In  such  a  case  there  could  be  no 
livery  of  seisin — there  was  merely  an  assent  of  which  the  country 
might  have  no  knowledge.  It  could  not  therefore  be  merely 
averred  :  it  must  be  proved  by  specialty.  In  both  cases  the  wife 
could  enter  upon  her  dower  immediately  upon  the  death  of  her 
husband.  She  was  not  obliged  to  wait,  as  in  the  case  of  dower 
at  common  law,  till  the  heir  assigned  her  her  dower.'' 

In  later  days  these  two  kinds  of  dower  were  superseded  either 
by  the  dower  provided  by  the  law,  or  by  the  jointures  given  under 
the  provisions  of  the  more  elaborate  settlements  which  it  had 
become  possible  to  make  upon  a  wife  at  the  time  of  her  marriage.^ 
In  the  time  of  Littleton  they  were  of  small  importance  compared 
with  the  dower  provided  by  the  law. 

(2)  The  new  order — dower  created  by  law. 

In  the  time  of  Littleton  the  two  forms  of  dower  created  by 
law  were,  as  we  have  seen,  dower  at  common  law  and  dower  by 
the  custom.  I  shall  consider  (i)  the  reasons  for  the  change  from 
the  old  order  to  the  new,  (ii)  the  contents  of  the  right  which  the 
law  secures  to  the  widow,  and  (iii)  the  modes  in  which  dower 
may  be  barred. 

1  Vol.  ii  89.  2  Litt.  §  40. 

3  See  Y.BB.  i,  2  Ed.  II.  (S.S.)  145,  and  3  Ed.  II.  (S.S.)  68  for  two  cases  dealing 
with  this  form  of  dower. 

^  Above  75. 

5  Glanvil  vi  c.  ii ;  Y.B.  i,  2  Ed.  II.  (S.S.)  148. 

^Y.B.  40  Ed.  III.  Mich.  pi.  26,  "  Finchden. — Assignment  de  dower  per  le  fitz 
poit  estre  averrer  sans  fait ;  mes  assignment  de  dower  d 'assent  le  pere,  ne  poit  estre 
averrer,  sinon  par  especialit^,  et  la  cause  est  quant  il  assigne  dower  a  la  feme  il  meme 
n'est  seisi  de  frank  tenement,  par  cause  le  frank  tenement  est  en  le  pere,  et  assent  ne 
gist  pas  en  averrment." 

'Litt.  §43. 

^  For  a  specimen  see  below  251-252. 


192  THE  LAND  LAW 

(i)  The  reasons  for  the  change  from  the  old  order  to  the  new. 

There  can  be  little  doubt  that  in  the  twelfth  and  thirteenth 
centuries  the  widow's  rights  were  very  uncertain.  We  have 
already  seen  that  the  tenant's  powers  over  his  land  were  restricted 
both  by  the  rights  of  his  lord  and  of  his  heirs. ^  Till  the  position 
of  the  tenant  in  relation  to  these  two  sets  of  rights  has  been  deter- 
mined we  must  not  expect  to  find  much  certainty  in  the  position 
of  his  widow. 

Feudalism,  as  Maitland  points  out,  made  for  the  curtailment 
of  the  widow's  rights.  "  If  it  is  a  concession  that  the  dead  man's 
beneficium  should  descend  to  his  heir,  it  is  a  larger  concession  that 
a  third  of  it  should  come  to  the  hand  of  the  widow."  ^  We  may 
see  traces  of  this  feeling  in  Glanvil's  statement  that  the  dower  can 
never  be  more  than  a  third  of  the  husband's  land,  and  in  Bracton's 
statement  that  the  lord  may  object  if  the  dower  is  more  than  a 
third.^  Perhaps  the  dower  la  pluis  beale,  as  we  see  it  in  Littleton, 
may  be  a  survival  from  the  days  when  the  lord  of  land  held  by 
military  tenure  looked  with  no  favourable  eye  upon  the  widow's 
claims.  If  a  man,  Littleton  tells  us,^  dies  seised  of  forty  acres, 
twenty  of  which  are  held  by  knight  service  and  twenty  are  held 
by  socage,  leaving  a  widow  and  an  infant  heir  ;  in  that  case  the 
lord  may  hold  the  twenty  acres  held  by  knight  service  as  guardian 
in  chivalry  free  from  all  claims  to  dower,  while  the  widow  may 
satisfy  her  claims  to  dower  de  la  pluis  beale — i.e.  of  the  fairest  of 
the  socage  tenements,  which  she  holds  as  guardian  in  socage. 
The  claims  of  the  lord  and  the  older  claims  of  the  family  were  not 
settled  in  the  eleventh  and  twelfth  centuries.  In  the  absence  of 
fixed  rules  of  law  we  get  special  arrangements  made  by  the  parties 
for  themselves — the  named  dowers,^  the  maritagia,^  and  the  condi- 
tional gift.^  In  the  thirteenth  century  the  feudal  claims  of  the 
lord  were  ceasing  to  curtail  the  tenant's  powers  over  his  land.  So 
far  as  his  lord  was  concerned  the  tenant  was  getting  the  power  to 
alienate  freely.  But  the  question  which  was  not  as  yet  settled 
was  the  question  how  this  power  of  alienation  should  be  reconciled 
with  the  claims  of  the  family.  Was  it  to  be  permitted  that  a  man 
should  sell  all  his  property  in  his  lifetime,  and  leave  his  heirs  and 
his  widow  destitute  ?  With  the  case  of  the  heir  I  have  already 
dealt.  ^     That  the  wife's  rights  needed  protection  against  the  action 

1  Above  73-74,  76-77.  2  p^  and  M.  ii  424.  ^  Above  igo. 

4§  48  ;  cp.  Y.BB.  15  Ed.  III.  (R.S.)  336;  16  Ed.  III.  (R.S.)  i  52. 

^  Above  190-191. 

"Above  111-112  ;  cp.  Y.B.  20,  21  Ed.  I.  (R.S.)  142,  where  in  the  plea  of  one  of 
the  parties  a  gift  in  frank  marriage  is  represented  as  performing  much  the  same 
function  as  dower  ad  ostium  ecclesice  ;  they  are  treated  together  in  §  7  of  the  Charter 
of  1215. 

'  Above  75. 


DOWER  193 

of  her  husband  may  be  seen  from  the  provisions  of  the  statutes  of 
Gloucester  and  Westminster  11./  which  show  that  the  devices  of 
alienation  with  warranty  and  suffering  a  recovery,  in  order  to  de- 
feat the  widow's  rights,  were  common.  It  is  evident  that  if  the 
widow's  rights  were  to  be  adequately  secured  they  must  be  defined 
by  a  fixed  rule  of  law. 

(ii)  The  contents  of  the  right  which  the  law  secures  to  the 
widow. 

It  was  probably  in  the  early  years  of  the  fifteenth  century  that 
the  common  law  dower  was  fixed  at  a  third  ^  of  the  land  of  which 
the  husband  had  ever  been  solely  seised  during  the  marriage  for 
an  estate  of  inheritance  to  which  issue  of  the  wife  by  the  husband 
might  by  possibility  inherit.^  As  we  have  seen,  the  third  was 
already  regarded  as  the  reasonable  dower  in  Glanvil's  day  in  the 
case  of  land  held  by  military  tenure.  At  one  time  the  mere  con- 
sent of  the  wife  to  the  husband's  alienation  or  perhaps  even  the 
husband's  alienation  without  such  consent,  would  have  barred 
the  wife's  rights  to  dower  out  of  land  so  alienated.*  But  at  the 
end  of  the  thirteenth  century  it  was  settled  that  the  husband's 
alienation  could  not  affect  the  right ;  and  that  the  wife's  consent 
to  be  valid  must  be  given  by  means  of  a  fine,  during  the  levying 
of  which  she  was  separately  examined  by  the  court  as  to  the 
reality  of  her  consent.^  The  technical  reasoning  which  made 
it  possible  to  settle  the  law  in  this  manner  was  probably  based 
partly  upon  a  strict  interpretation  of  the  clause  of  the  charter 
of  1 2 1 7  which  deals  with  dower ;  ^  and  partly  upon  the  analogy 

^  6  Edward  I.  c.  3,  and  the  exposition  of  the  statute  c.  6  ;  13  Edward  I.  st.  i  c.  3 
and  4 ;  cp.  Y.BB.  21,  22  Ed.  I.  (R.S.)  460 ;  8  Ed.  II.  (S.S.)  99-112. 

2  The  value  was  taken  as  at  the  time  of  assignment,  Co.  Litt.  32a ;  Williams  v. 
Thomas  [1909]  i  Ch.  at  pp.  723-724. 

^  Litt.  §§  36,  53.  The  custom  as  to  dower  is  so  stated  in  the  instructions  to  the 
ambassadors  to  the  heiress  of  the  Duke  of  Bavaria  to  negotiate  a  marriage  between 
her  and  the  Duke  of  Bedford  in  1418,  Nicolas  ii  242,  243  ;  but  though  tJhe  right  to 
dower  out  of  estates  in  fee  simple  had  been  fixed  long  before  this  date,  the  law  as  to 
dower  out  of  estates  tail  had  not  long  been  settled  ;  in  Edward  II.'s  reign  there  was  a 
disposition  to  hold  that  a  second  wife  could  not  claim  dower  out  of  a  fee  tail,  on  the 
ground  that  the  provisions  of  the  Statute  De  Donis  as  to  the  second  husband's  curtesy 
should  be  extended  to  dower,  Y.BB.  4  Ed.  II.  (S.S.)  161-167 ;  6  Ed.  II.  (S.S.)  43-44  ; 
but  it  was  held  in  14  ii  that  such  an  extension  of  the  words  of  the  statute  could  not 
be  made,  Y.B.  12  Hy.  IV.  Mich.  pi.  3  ;  and  the  argument  in  that  case  seems  to  have 
been  the  foundation  of  the  principle  stated  by  Littleton  that  the  right  to  dower  is  de- 
pendent on  the  possibility  of  inheritable  issue. 

*  P.  and  M.  ii  421,  422. 

^  The  law  is  assumed  to  be  already  fixed  in  this  sense  in  the  exposition  of  the 
Statute  of  Gloucester,  6  Edward  I.  c.  6  ;  cp.  Bracton  f.  95b — he  says  dower  may  be 
barred  "  per  judicium  vel  per  concordiam ;  "  and  Y.B.  33-35  Ed.  I.  (R.S.)  292 ;  in 
London  it  could  be  barred  by  deed  enrolled  in  the  Hustings  Court,  Calendar  of 
Hustings  Wills  i  xl. 

"  C.  7,  •'  Assignetur  autem  ei  pro  dote  sua  tertia  pars  totius  terrae  mariti  sui  quce 
suafuit  in  vita  sua  nisi  de  minori  dotata  fuerit  ad  ostium  ecclesiae ; "  P.  and  M.  ii 
422. 

VOL.    HI.— 13 


194  THE  LAND  LAW 

of  the  older  named  dowers  which  the  husband  could  not  alienate 
to  the  prejudice  of  the  wife.^  The  cause  which  made  the  lawyers 
ready  to  adopt  this  reasoning  was,  as  I  have  hinted,  a  feeling 
that  the  husband's  position  was  sufficiently  advantageous.  Just 
as  the  heir  had  been  secured  against  the  testamentary  disposition 
of  his  ancestor,  so  the  wife's  life  interest  in  a  third  of  any  land, 
which  had  been  part  of  her  husband's  estate  during  the  marriage, 
was  secured  against  any  alienation  which  the  husband  might 
make.  In  both  cases  a  compromise  between  conflicting  claims 
— between  family  rights  and  the  right  to  alienate  freely — was 
embodied  in  a  simple  fixed  rule.  In  one  respect,  indeed,  the 
widow's  rights  were  larger  than  those  secured  by  the  heir.  The 
heir  was  secured  only  against  the  testamentary  disposition  of 
his  ancestor.  The  widow  was  secured  against  any  alienation. 
Nor  was  the  gift  of  this  larger  right  to  the  widow  unjust.  As 
we  shall  see,  the  law  denied  her  any  proprietary  capacity  during 
the  marriage ;  it  gave  all  her  chattels  to  her  husband,  and  made 
him  the  uncontrolled  manager  of  her  realty.  Some  compensation 
was  due  to  her.^ 

When  the  position  of  the  common  law  dower  had  been  thus 
fixed,  questions  naturally  arose  as  to  the  relations  between  it 
and  the  older  named  dowers.  Notwithstanding  the  charter  of 
1217,^  it  very  soon  seems  to  have  been  thought  that  a  woman 
could  not  debar  herself  from  her  common  law  rights  by  an  agree- 
ment to  accept  one  of  these  named  dowers.  This  appears  to  have 
been  the  view  held  in  Edward  I.'s  reign;*  but  probably  the 
question  was  not  clearly  settled  till  early  in  the  fourteenth  century. 
Britton's  annotator  gives  us  an  interesting  discussion  of  the 
subject,  and  the  reason  for  the  rule  ultimately  adopted.  *'  Dower," 
he  says,  "was  ordained  by  common  constitution  of  the  people 
and  cannot  be  undone  by  any  single  person.  For  if  by  one  then 
by  another,  and  so  the  constitution  would  be  destroyed :  quod 
non  est  permissum  ne  pereat  lex  approbata''  ^  To  allow  a  woman 
to  contract  herself  out  of  her  rights  would  put  her  rights  at  the 
mercy  of  the  unscrupulous ;  and  this  was  just  the  evil  which  the 

^  Bracton  f.  95b. 

2  Below  525-527 ;  cp.  Brissaud,  Droit  Fran9ais  ii  1657,  1658. 

3  Above  193  n.  6 ;  cp.  Bracton  f.  94. 

^  Y.B.  20,  21  Ed.  I.  (R.S.)  142,  ''Mowther. — Even  if  certain  tenements  had  been 
assigned  to  her  by  her  husband,  etc.,  yet  it  is  in  her  election,  after  her  husband's 
death,  either  to  take  those  certain  tenements,  or  to  be  endowed  at  common  law ;  " 
but  once  having  elected  she  could  not  change  her  mind,  Y.B.  2,  3  Ed.  II.  (S.S.)  56. 

^Britton  ii  236-237,  note  from  MS.  A^ ;  it  is  admitted  that  "usage  of  dower  is 
become  law,"  so  that  "a  wife  is  suflficiently  endowed  though  her  husband  say 
nothing;"  but  what  will  happen  if  "the  husband  protests  distinctly  and  solemnly 
at  the  time  of  the  marriage  that  he  does  not  intend  that  his  wife  shall  be  in  any  way 
endowed  after  his  decease,  and  this  is  a  known  and  notorious  fact  ?  " — the  answer, 
after  argument  the  other  way,  is  that  given  in  the  text. 


DOWER  195 

common  law  dower  was  designed  to  prevent.  In  Edward  VI. 's 
reign  her  rights  were  secured  also  against  the  claims  of  the  lord 
or  crown  to  escheat  or  forfeiture  if  her  husband  committed  felony ; 
but  the  old  law  remained  if  her  husband  committed  treason, 
whether  grand  or  petit.  ^ 

This  common  law  dower  soon  began  to  prevail  not  only  over 
the  older  named  dowers,  but  also  over  other  older  customary 
arrangements  which  were  once  widespread.  Some  of  these  customs 
gave  the  wife  half  for  life  or  until  she  remarried.^  This  may  at 
one  time  have  been  the  general  rule  in  the  case  of  land  held  by 
socage  tenure.^  But,  by  the  time  of  Littleton,  the  rule  of  a  third 
for  life,  which  had  originated  in  the  case  of  land  held  by  military 
tenure,  had  been  applied  by  the  royal  courts  to  all  land  held  by 
free  tenure.  Those  who  claimed  the  older  customary  dowers 
must  allege  and  prove  the  custom.'* 

(iii)  The  modes  in  which  dower  may  be  barred. 

The  law,  by  thus  securing  the  widow  the  right  to  a  third  of 
the  land  of  which  her  husband  had  ever  been  seised  during  the 
marriage,  pro  tanto  restricted  the  husband's  right  of  free  alienation. 
In  fact,  the  widow's  right  to  dower  was  the  one  restriction  upon 
the  power  of  free  alienation  inter  vivos  in  the  interest  of  the 
family  which  the  common  law  retained.  Even  this  one  restriction 
soon  began  to  appear  irksome ;  and  it  is  for  this  reason  that  the 
expedients  for  barring  dower  take  an  important  place  in  any 
account  of  the  history  of  this  subject. 

From  the  earliest  period  certain  modes  of  barring  dower  were 
recognized.  The  jus  accrescendi,  in  the  case  of  joint  tenancy, 
prcefertur  oneribus ;  and  of  these  burdens  the  widow's  right  to 
dower  is  one.^  A  wife  who  eloped  lost  her  dower/  and  if  lands 
were  exchanged  the  right  to  dower  ceased  to  attach  to  the  lands 
given,  and  began  to  attach  to  the  lands  taken  in  exchange.^  By 
a  fine,  as  I  have  said,  the  land  could  be  conveyed  free  from  dower, 
perhaps  because  the  married  woman  could  be  separately  examined 

1 1  Edward  VI.  c.  12 ;  §  16  allowed  her  to  have  dower  even  if  her  husband  com- 
mitted treason;  but  5,  6  Edward  VI.  c.  11  §  11  restored  the  old  law  in  case  of 
treason  ;  Hale,  P.C.  i  359. 

'^  P.  and  M.  ii  423,  424  ;  for  a  case  in  which  such  a  special  custom  was  pleaded 
see  Y.B.  6,  7  Ed.  II.  (S.S.)  53-57. 

^Bracton  f.  93,  "Et  haec  quae  dicta  sunt  de  tertia  parte  vera  sunt  de  foedo 
militari,  nisi  aliter  observetur  de  aliqua  consuetudine  speciali,  vel  nisi  terra  teneatur 
in  sockagio,  ubi  diversimode  fit  dotis  constitutio,  vel  in  gavelkind,  vel  si  sockagium 
adjungatur  foedo  militari." 

'Litt.  §37. 

'Y.B.  33-35  Ed.  I.  (R.S.)  512. 

8  Y.BB.  2,  3  Ed.  II.  (S.S.)  145 ;  14,  15  Ed.  III.  (R.S.)  224. 

7  Y.B.  30,  31  Ed.  I.  (R.S.)  316,  318 ;  cp.  Y.BB.  i,  2  Ed.  II.  (S.S.)  100  ;  3  Ed. 
II.  (S.S.)  192. 


196  THE  LAND  LAW 

to  see  if  she  had  consented  ;  ^  and  the  suffering  of  a  recovery  by 
husband  and  wife  had  the  same  result^ 

But  these  expedients  were  not  sufficient.  More  efficacious 
modes  were  discovered,  firstly  in  the  Use,  secondly  in  the  trust 
estates  protected  by  the  chancellor  in  the  seventeenth  century, 
and  thirdly  in  the  ingenuity  of  the  conveyancers. 

(i)  We  have  already  seen  that  jointures  given  by  the  more 
elaborate  settlements  which  the  rise  of  uses  rendered  possible  in 
the  fifteenth  century  caused  the  practical  disuse  of  the  older  forms 
of  dower.^  The  same  expedient  could  be  used  to  defeat  the 
common  law  dower ;  for  if  a  man  settled  his  property  to  his  own 
use,  so  that  he  only  had  an  equitable  estate,  no  right  to  dower 
attached,  because  his  estate  was  equitable.*  When  this  expedi- 
ent was  resorted  to,  the  wife's  right  was  limited  to  the  jointure  ^ 
limited  by  the  settlement.  The  Statute  of  Uses  recognized  the 
prevalence  of  this  arrangement,  and  dealt  with  it  by  a  provision 
which  added  another  mode  to  the  existing  modes  of  barring 
dower.  The  effect  of  the  statute  was  to  execute  the  use — that 
is,  to  turn  the  equitable  estate  of  the  cestui  que  use  into  a  legal 
estate.  Therefore  if  the  statute  had  been  silent  the  widow  would 
have  been  entitled,  not  only  to  the  jointure  conferred  upon  her  by 
settlement,  but  also  to  dower  out  of  the  other  estates  of  her 
husband  which  had  been  made  legal  estates  by  the  statute.^ 
The  statute  therefore  provided  that  a  jointure  settled  on  the  wife 
before  marriage  should  bar  her  rights  to  dower,  but  that,  if  she 
were  evicted,  her  common  law  rights  should  revive.'''  If  the 
jointure  was  settled  on  her  after  marriage  she  could  elect  to 
take  either  the  jointure  or  her  dower.  ^  To  have  this  effect 
the  jointure  must  be  ''of  lands  or  tenements  to  take  effect 
presently  in  possession  or  profit  after  the  decease  of  the  husband 
for  the  life  of  the  wife  at  the  least."  ^  (2)  Equity,  after  some 
hesitation,  departed  from  its  usual  rule  of  following  the  law.  It 
not  only  refused  to  allow  dower  out  of  trust  estates, ^^  but  also 

^  Above  193  ;  see  below  245  and  n.  7  for  another  explanation  of  the  efficacy  of 
a  fine. 

2  Lord  Cromwel's  case  (1601)  2  Co.  Rep.  at  ff.  74a,  74b.  For  a  case  in  which 
the  earl  of  Warenne  in  13 16  surrendered  estates  to  the  crown,  and  took  back  an  estate 
for  life  with  remainders  in  tail,  in  order  to  bar  dower,  see  Select  Cases  before  the 
Council  (S.S.)  Ixix. 

3  Above  191. 

*  Doctor  and  Student  ii  c.  22 ;  cp.  preamble  to  the  Statute  of  Uses,  27  Henry 
VIII.  c.  10. 

'^  As  Coke  says,  Co.  Litt.  36b,  "  A  jointure  in  common  understanding  extendeth 
as  well  to  a  sole  estate  as  to  a  joint  estate  with  her  husband." 

^  Gilbert,  Uses  (3rd  ed.)  321-337 ;  Bl.  Comm.  ii  137,  138. 

■^  27  Henry  VIII.  c.  10  §§  4  and  5. 

8  Ibid  §  7 ;  Butler  and  Baker's  Case  (1591)  3  Co.  Rep.  at  f.  27a. 

»  Co.  Litt.  36b. 

^^  The  wife's  right  to  dower  was  favoured  by  Jekyll,  M.R.,  in  Banks  v.  Sutton 
(1732)  2  P.  Wms.  700;  but  in  Clapham  v.  Clapham  (1733)  3  P.  Wms.  229  it  was 
settled  that  she  was  not  entitled ;  Lord  Hardwicke  in  Casborne  v.  Scarfe  (1737)  i  Atk. 


DOWER  197 

invented  a  new  mode  of  barring  it,  by  holding  that  property 
settled  on  the  wife,  which  would  not  have  been  a  good  legal 
jointure  under  the  Statute  of  Uses  because  it  was  personal  pro- 
perty, might  operate  in  equity  to  bar  dower. ^  Probably  the 
reasons  which  induced  the  chancellors  to  take  this  course  were 
firstly,  analogy  to  the  rule  applied  to  uses  before  the  Statute  of 
Uses,  and  secondly  the  fact  that  the  wife's  rights  inconveniently 
restricted  freedom  of  alienation.^  (3)  The  separation  of  the 
ownership  of  property  from  the  power  of  disposing  of  it, 
rendered  possible  by  the  invention  of  powers  of  appointment, 
became,  in  the  hands  of  the  conveyancers  and  the  court  of 
Chancery,  the  foundation  of  an  efficient  mode  of  depriving  the 
wife  of  dower,  and  yet  of  giving  to  the  husband  all  the  advan- 
tages of  an  estate  of  inheritance.'* 

These  expedients  were  rendered  unnecessary  in  1833.  The 
Dower  Act  of  that  year  put  the  widow's  rights  at  the  mercy  of 
the  husband,  and  thus  destroyed  this  solitary  yet  long-lived 
survival  from  an  age  when  family  rights  of  many  kinds  fettered 
alienation.^  The  widow  is  still  entitled  to  dower,  and,  by  virtue 
of  the  Dower  Act,  out  of  equitable  as  well  as  legal  estates  ;  but 
only  out  of  those  estates  to  which  the  husband  was  entitled  bene- 
ficially at  his  death,  and  only  if  he  has  not  exercised  by  deed  or 
will  his  power  of  taking  away  her  right.  The  one  surviving  rule 
which  may  remind  us  of  the  time  when  the  widow's  dower  was 
a  real  fetter  upon  alienation  is  the  rule  that  a  legacy  to  a  wife 
in  satisfaction  of  an  existing  claim  to  dower  gets  priority  over 
other  legacies,  because  the  wife  can  be  regarded,  not  as  a  mere 
volunteer,  but  as  a  purchaser  of  the  legacy.^ 

at  p.  606  admitted  that  this  was  the  law,  though,  as  he  said,  it  was  "  hard  to  find  a 
sound  reason  for  it,"  see  the  corrected  report  of  the  case  in  2  Jac.  and  W.  at  p.  199 ; 
Lord  Mansfield  in  Burgess  v.  Wheate  (1757-1759)  i  Eden  at  p.  224  agreed  that  the 
law  was  not  founded  on  reason,  but  that  "  wrong  determinations  had  misled  in  too 
many  instances  to  be  now  set  right ;  "  cp.  Smith  v.  Adams  (1854)  5  De  G.  M.  and 
G.  at  p.  720. 

^  Dyke  v.  Kendall  (1852)  2  De  G.  M.  and  G.  209,  218,  219,  **  What  was  not  a 
legal  bar  might  be  made  an  equitable  bar — the  ground  of  this  equitable  bar  being 
contract;  "  there  was  no  right  as  under  the  statute  to  have  recourse  to  the  common 
law  dower  in  case  of  eviction ;  '*  if  a  woman,  being  of  age,  accepts  a  particular 
something  in  satisfaction  of  dower,  she  must  take  it  with  all  its  faults,  and  must 
look  to  the  contract  alone,  and  cannot  in  case  of  eviction  come  against  any  one  in 
possession  of  the  lands  on  which  otherwise  her  dower  might  have  attached." 

2  Above  196  n.  4;  see  Clapham  v.  Clapham  {1733)  3  P.  Wms.  at  pp.  233- 
234 ;  Smith  v.  Adams  (1854)  5  De  G.  M.  and  G.  at  p.  720. 

2  For  the  conveyance  to  uses  to  bar  dower  see  Williams,  Real  Property  (22nd  ed.) 
397-398,  and  for  further  illustrations  of  the  use  made  of  powers  of  appointment  for  this 
purpose  cp.  Ray  v.  Pung  (1822)  5  B.  and  Aid.  561 ;  Maundrell  v.  Maundrell  (1804) 
10  Ves.  246. 

*3,  4  William  IV.  c.  105;  the  Act  applies  to  lands  held  under  the  custom  of 
gavelkind ;  it  does  not  apply  to  lands  of  copyhold  tenure,  probably  because  it  was 
not  required  to  enable  the  husband's  alienation  to  destroy  the  right  to  dower,  see 
Farley  v.  Bonham  (1861)  2  J.  and  H.  177-180, 

^  Re  Greenwood  [1892]  2  Ch.  295. 


198  THE  LAND  LAW 

§  10.  Unfree  Tenure 

The  greater  part  of  the  land  of  England  was  cultivated  by 
persons  who  held  by  unfree  tenure.  To  understand,  therefore, 
the  law  relating  to  that  tenure  we  must  constantly  keep  before 
our  minds  the  main  features  of  the  system  of  agriculture  which, 
as  we  have  seen,  prevailed  here  and  elsewhere  both  before  and 
after  the  mediaeval  period  ;  ^  for  it  was  the  basis  upon  which  the 
law  rested.  But  within  that  system  we  can  see  changes  which 
correspond  to  social  and  economic  changes  in  the  state ;  and  we 
must  take  these  changes  into  account,  no  less  than  the  system 
itself,  if  we  are  to  understand  the  development  of  the  rules  of 
law. 

In  the  oldest  documents  we  see  what  has  been  called  the 
farm  system.^  The  '*  farm,"  which  is  the  same  word  as  the 
Saxon  feorm  or  food,  is  the  amount  of  produce  needed  to  main- 
tain the  lord's  household  for  a  certain  fixed  period ;  and  the 
system  itself  goes  back  to  the  Saxon  period.  In  Domesday 
Book  a  ''firma  unius  noctis  "  was  due  from  some  of  the  royal 
manors.^  Other  landowners  followed  this  example.  Their 
estates  were  let  to  farm  so  as  to  produce  a  certain  quantity  of 
food.^  Thus  the  manors  of  St.  Paul's  were  let  in  such  a  way 
that  they  produced  food  for  fifty-two  weeks  and  six  and  five-sixths 
days.^  Sir  Paul  Vinogradofif  says,  *'The  practice  of  arranging 
the  produce  rents  according  to  farms  was  by  no  means  restricted 
to  ecclesiastical  management :  it  occurs  also  on  the  estates  of  the 
crown,  and  was  probably  in  use  on  those  of  lay  lords  generally."  ^ 
This  system  gave  place  to  the  system  of  labour  service.  The 
lord  managed  his  own  farm  by  his  own  officials.  They 
must  strictly  account  to  him  and  his  superior  officers.  The 
labour  was  done  by  the  tenants  as  service  due  in  return  for  their 
holdings.  As  compared  with  the  earlier  system  it  was  far  more 
highly  organized.  The  earlier  system  was  somewhat  rough  and 
ready.  It  ''was  imposed  from  above  without  much  trouble  being 
taken  to  ascertain  the  exact  value  and  character  of  the  tributary 
units  subjected  to  it."''  Under  the  later  system  a  far  more  uni- 
formly proportionate  profit  could  be  made  from  the  land.  But  it 
was  a  system  which  required  an  elaborate  and  detailed  organiza- 
tion impossible  to  a  primitive  civilization.  It  was  gradually  sub- 
stituted for  the  earlier  system  as  the  great  landowners,  imitating 
the  centralized  organization  of  the  royal  court,  introduced  some 

^  Vol.  ii  56-61.  -  Vinogradoff,  Villeinage  301-307. 

'  Domesday  Book  and  Beyond  146  ;  Domesday  of  St.  Paul's  (C.S.)  xl. 

^  Domesday  Book  and  Beyond  147,  citing  the  Black  Book  of  Peterborough. 

5  Domesday  of  St.  Paul's  (C.S.)  xxxix. 

•^  Vinogradoff,  Villeinage  302,  303.  '  Ibid  306. 


UNFREE  TENURE  199 

of  the  royal  methods  of  enrolment  and  accounting  into  the 
management  of  their  demesnes.^ 

It  is  this  system  which  we  see  prevalent  in  the  thirteenth 
century ;  and,  as  we  have  seen,  it  was  those  tenants  whose  duties 
consisted  chiefly  or  wholly  in  cultivating  the  lord's  demesne  who 
were  classed  by  the  lawyers  as  unfree  tenants.^  It  was  gradually 
replaced  by  a  system  of  money  rents.  The  tenant  hires  his  land 
of  his  lord ;  and  the  lord  cultivates  his  own  land  by  paid  labour, 
or  lets  it  to  a  tenant  who  pays  rent. 

It  is  the  transition  from  the  second  system  to  the  third  which 
occupies  the  period  from  the  thirteenth  to  the  fifteenth  centuries ; 
and  the  transition  necessarily  involved  a  gradual  change  in  the 
rules  of  law  relating  to  the  tenure  of  land  by  the  cultivators  of 
the  soil.  In  the  earlier  period  we  see  a  community  pursuing  a 
communal  system  of  agriculture,  and  cultivating  by  their  labour 
services  the  demesne  of  a  lord.  In  the  later  period  we  see  in 
many  cases  a  similar  community  pursuing  a  similar  system  of 
agriculture,  but  owing  only  certain  customary  rents  and  dues  to  a 
landlord.  There  has  been  a  transition  from  the  relation  of  lord 
and  villein  to  the  relation  of  landlord  and  copyholder.^ 

In  dealing  with  the  earlier  period  it  is  sometimes  difficult  to 
keep  apart  questions  of  status  and  tenure.  As  we  have  seen,  the 
man  who  held  by  an  unfree  or  villein  tenure  was  often,  though 
not  necessarily,  an  unfree  person.^  Here  I  shall  deal  only  with 
villein  tenure,  leaving  to  a  later  chapter  the  topic  of  villein 
status.^ 

We  have  seen  that  the  technical  and  legal  distinction  between 
free  and  unfree  tenure  consisted  in  the  fact  that  the  first  was,  and 
the  second  was  not,  protected  by  the  courts  of  common  law.  We 
have  seen  too  that  this  broadly  and  roughly  corresponded  with  a 
social  and  economic  distinction  between  different  classes.  The 
courts  of  common  law  lumped  together  all  the  class  of  unfree 
tenants  under  the  comprehensive  term  ''  villani."  The  term 
itself  is  characteristic.  It  is  a  *'  Latin  record  term  ;  "  and  its 
victory  illustrates  the  far-reaching  effects  of  the  classification 
effected    by   the    royal    courts.     A    very   cursory  glance  at    the 

^  See  The  Economic  Development  of  a  Norfolk  Manor  22-25  for  a  description  of 
the  organization  of  a  manor,  its  relations  to  the  other  manors  belonging  to  the  same 
estate,  and  the  duties  of  the  officers  of  the  manor  and  of  the  estate,  who  travelled 
round,  like  the  king's  itinerant  justices,  keeping  the  local  officials  up  to  their  duties 
and  overhauling  their  accounts.  The  arrangement  was  long  observed ;  in  a  tract 
upon  "the  well  ordering  of  an  honourable  estate  or  revenue,"  published  in  1624  ^^^ 
written  by  Tho.  Clay,  "  Surveyor  and  Student  in  the  Mathematicks,"  we  meet  a 
similar  set  of  officers  with  similar  duties. 

2  Above  31-33. 

•'  For  the  term  '•  copyholder,"  see  below  206  and  n.  3. 

4  Vol.  ii  202,  264,  577 ;  cp.  Y.B.  i,  2  Ed.  II.  (S.S.)  61. 

^  Below  491-510. 


200  THE  LAND  LAW 

manorial  records  will  show  that  this  class  of  villani  was  com- 
pounded of  many  different  elements  and  contained  many  different 
classes  of  persons.  Terminology  alone  shows  this.  We  meet 
with  terms  such  as  servus,  nativus,  or  rusticus,  which  sometimes 
imply  that  the  tenant  is  personally  unfree.  Sometimes  the  term 
"  villanus  "  is  used  to  mean  the  holder  of  a  plot  of  normal  size, 
as  contrasted  with  cottarii  or  bordarii,  who  held  smaller  plots. 
Sometimes  terms  are  used  which  express  the  nature  of  the  ser- 
vices due,  such  as  operarii  or  akermanni,  or  the  incidents  of  tenure, 
such  as  gersumarii.^ 

We  see  the  same  thing  still  more  clearly  if  we  look  at  the 
leading  characteristics  of  unfree  tenure.  1  have  already  described 
the  various  labour  services  due.  They  were  elaborately  set 
out  in  the  manorial  extents;  and  they  formed  the  chief 
characteristic  of  unfree  tenure.^  But,  in  addition,  the  lord 
was  entitled  to  other  incidents  of  tenure  which  cannot  be  ex- 
plained by  the  economic  needs  of  the  manor.^  The  merchet, 
which,  as  we  have  seen,  was  often  taken  as  the  badge  of  unfree 
status,*  shows  that  a  large  number  of  the  personally  unfree  went 
to  make  up  the  class  of  villein  tenants.  The  heriot,  or  sum 
payable  from  the  chattels  of  a  deceased  villein  tenant,  may  re- 
present either  the  theory  that  the  villein  is  personally  unfree  and 
can  own  nothing,  or  the  theory  that  the  lord  has  lent  him  his 
stock.  The  relief  on  the  other  hand  is,  as  in  the  case  of  land 
held  by  free  tenure,  a  payment  by  the  heir  for  the  right  to  succeed. 
Then  we  get  a  number  of  privileges  possessed  by  a  lord,  because 
as  lord  he  has  a  certain  political  authority.  He  can  amerce  and 
fine  transgressors  in  his  court  if  they  break  the  customary  rules 
or  the  by-laws  of  the  manor.  ^  He  can  tallage  his  villein  tenants 
— even  where  the  status  of  the  tenant  is  free.^  He  often  has  a 
mill  to  which  all  villein  tenants  must  bring  their  corn  to  be 
ground,  or  a  fold  in  which  their  sheep  must  be  enclosed.  In 
many  cases  a  villein  tenant  could  not  sell  his  cattle  or  allow  his 
son  to  take  holy  orders  without  the  lord's  consent ;  he  cannot 

1  For  these  terms  see  Vinogradoff,  Villeinage  140-150 ;  the  term  akermanni 
seems  to  mean  those  whose  duty  it  was  to  follow  the  demesne  ploughs,  and  the 
teTm  gersumarii  to  mean  those  who  pay  a  fine  for  giving  their  daughters  in  marriage, 
ibid  147. 

2  Vol.  ii  370,  379-380,  and  App.  II.  to  this  volume. 

2  For  these  incidents  see  Vinogradoff,  Villeinage  153-164. 

*  However,  it  was  sometimes  paid  by  free  persons,  Vinogradoff,  Villeinage  155  ; 
the  same  thing  applies  to  other  incidents  generally  thought  servile,  ibid  201,  202. 

^  Vol.  ii  376-377 ;  see  Ramsey  Cart,  ii  p.  22  for  a  curious  custom  by  which  the  "  tota 
villata  "  paid  20s.  as  a  composition  for  certain  amercements  which  its  members 
might  incur. 

^See  Y.B.  33-35  Ed.  I  (R.S.)  338— a  lord  avowed  for  nonpayment  of  tallage  in 
a  plea  for  wrongfully  taking  cattle ;  the  plaintiff  pleaded  that  she  "  was  free  and  of 
free  estate,"  so  that  she  was  not  liable  for  tallage ;  the  court,  after  taking  time  to 
consider,  adjudged  the  avovt^ry  good. 


UNFREE  TENURE  201 

refuse  to  serve  as  reeve,  and  his  youngest  son  succeeds  to  his 
property ;  and  all  these  incidents,  like  the  incident  of  merchet, 
came  to  be  connected  with  servile  status.  But,  as  Sir  Paul  Vino- 
gradoff  has  pointed  out,^  "they  do  not  fit  well  together  :  the  pro- 
hibition against  selling  animals  is  connected  with  disabilities  as  to 
property,  and  not  directly  derived  from  the  personal  tie ;  as  for 
the  rule  of  succession,  it  testifies  merely  to  the  fact  that  the  so- 
called  custom  of  Borough  English  was  most  widely  spread  among 
the  unfree  class.  The  obligation  of  serving  as  a  reeve  or 
in  any  other  capacity  is  certainly  derived  from  the  power  of  a 
lord  over  the  person  of  his  subject ;  he  had  it  always  at  his 
discretion  to  take  his  man  away  from  the  field,  and  to  em- 
ploy him  at  pleasure  in  his  service.  Lastly,  the  provision  that 
a  villein  may  not  allow  his  son  to  receive  holy  orders  stands 
on  the  same  level  as  the  provision  that  he  may  not  give  his 
daughter  in  marriage  outside  the  manor :  either  of  these  pro- 
hibited transactions  would  have  involved  the  loss  of  a  subject." 
Thus  the  various  incidents  characteristic  of  unfree  tenure  come 
from  very  diverse  sources,  and  truly  represent  the  diverse  origins 
of  the  composite  class  of  unfree  tenants.  The  services  and 
incidents  were  fixed  by  their  enrolment  on  the  court  rolls  and 
extents  of  the  manor.  As  so  fixed  they  represented  simply 
the  custom  of  the  particular  manor ;  and  therefore  there  is  none 
of  that  uniformity  about  them  which  is  characteristic  of  the  free 
tenures.  Their  characteristic  is  rather  that  stereotyped  diversity 
which  is  still  the  mark  of  the  copyhold  tenure  of  our  modern  law. 
We  have  already  seen  to  what  an  extent  the  enrolment  of  the 
villeins'  services,  the  regular  keeping  of  courts,  the  imitation, 
conscious  or  unconscious,  of  the  rules  of  the  common  law,  and  the 
communal  custom  of  the  manor,  tended  to  fix  not  only  the  duties 
of  the  tenant,  but  also  the  rights  and  liabilities  of  the  lord.^  The 
result  was  a  system  which  seemed  to  have  attained  a  fixity  and 
stability  remarkable  even  in  the  Middle  Ages.  But  a  series  of 
causes  gradually  led  to  a  commutation  of  the  old  labour  services 
and  many  of  the  old  incidents  of  tenure  for  money  payments.  The 
memory  of  the  old  economic  order  lived  on  only  in  the  names  of 
the  customary  payments  due  from  the  tenant,  or  in  the  occasions 
upon  which  these  payments  could  be  demanded.  This  transition 
from  the  labour-service  system  to  the  system  of  money  rents  was 
as  gradual,  perhaps  more  gradual,  than  the  transition  from  the 
farm  system  to  the  labour- service  system.  Even  in  the  seven- 
teenth century  Coke  can  talk  of  the  *'so  little  Commonwealth" 
of  lord  and  copyholders.^     The  dependency  of  the  tenant  upon 

1  Villeinage  156,  157.  2  Vol.  ii  378-381. 

3 Coke,  in  his  epilogue  to  his  tract  styled  "The  Complete  Copyholder,"  says, 
"  And  so  I  conclude  with  copyholders,  wishing  that  there  may  be  ever  a  perfect 


202  THE  LAND  LAW 

the  manor  was  loosened ;  but  the  manor  and  its  courts  remained. 
A  communal  system  of  agriculture  ^  and  dependency  upon  a  lord, 
who  often  possessed  a  court  with  a  leet  jurisdiction,^  helped  to 
bridge  the  gap  between  the  mediaeval  and  the  modern. 

The  history  of  this  transition  I  must  now  trace.  I  shall  deal 
firstly  with  the  process  of  transition ;  secondly,  with  the  effect  of 
this  transition  upon  the  land  law ;  and,  thirdly,  with  the  settle- 
ment of  the  position  of  the  copyholder  which  was  effected  in  the 
sixteenth  century  as  the  result  of  this  transition. 

The  Process  of  Transition 

The  centralized  government  of  England  which  kept  the  peace, 
the  insular  position  of  the  country  which  kept  it  free  from  foreign 
invasion,  and  the  rise  of  the  woollen  industry,  supplied  three 
economic  conditions  precedent  for  the  transition  from  a  system  of 
natural  husbandry  to  a  system  of  money  rents.  Owing  to  these 
three  causes  wealth  could  increase,  trade  could  flourish,  and  money 
could  become,  in  consequence,  more  plentiful.  "The  conse- 
quences," says  Sir  Paul  Vinogradoff,  ''are  to  be  seen  on  every 
side  in  the  arrangements  of  state  and  society.  The  means  of 
government  were  modified  by  the  economic  change.  Hired 
troops  took  the  place  of  feudal  levies ;  kings  easily  renounced  the 
military  service  of  their  tenants,  and  took  scutages  which  gave 
them  the  means  of  keeping  submissive  and  well  drilled  soldiers. 
The  same  process  took  place  all  through  the  country  on  the  land 
of  secular  and  ecclesiastical  lords.  They  all  preferred  taking 
money,  which  is  so  readily  spent  and  so  easy  to  keep,  which  may 
transform  itself  equally  well  into  gorgeous  pageants  and  into  capi- 
tal for  carrying  on  work,  instead  of  exacting  the  old-fashioned  un- 
wieldy ploughings  and  reapings  or  equally  clumsy  rents  in  kind."  ^ 

Even  in  Domesday  Book  we  can  see  some  rent- paying  tenants.^ 
In  the  thirteenth  century  we  see  a  class  of  '*  molmen,"  ''  censuarii," 
or  "gavelmanni,"  who  are  released  from  their  labour  services  on 
condition  of  paying  a  money  rent,  and  who,  in  consequence,  often 
win  their  way  upwards  almost  to  an  equality  with  the  free  tenants.^ 
Again,   we  see  that  small  portions  of  the  demesne  or  outlying 

union  betwixt  them  and  their  lords,  that  they  may  have  a  feeling  of  each  other's 
wrongs  and  injuries ;  that  this  so  little  Commonwealth  having  all  its  members  knit 
together  in  complete  order  may  flourish  to  the  end." 

1  Vol.  ii  378,  392  n.  I ;  at  the  court  of  Castle  Combe  we  find  orders  made  relating  to 
the  common  fields  as  late  as  1661,  History  of  Castle  Combe,  344,  345 ;  for  informa- 
tion as  to  its  activities  in  the  eighteenth  century  see  Webb,  Local  Government,  Manor 
and  Borough  75-89. 

2  Vol.  i  184-185.  »  Villeinage  181. 
^  Vinogradoff,  English  Society  390,  462. 

5  Ibid  Villeinage  183-188. 


PROCESS  OF  TRANSITION  208 

pieces  of  land  are  sometimes  let  to  the  villeins  for  a  money-rent ;  ^ 
and  often  the  extent  will  state  that  if  the  tenant  of  a  plot  per- 
forms labour  services  such  and  such  services  are  due,  while,  if  he 
pays  rent,  so  much  is  due.^  But  before  the  middle  of  the  four- 
teenth century  the  process  of  commuting  labour  services  for  rent 
had  not  gone  far.^  We  find,  indeed,  that  some  of  the  labour 
services  are  now  and  again  commuted.  The  bailiff  sells  the  cus- 
tomary work  at  a  customary  rate  of  i  d.  or  ^d.  a  day.  But  there 
is  no  general  commutation.  The  number  of  "works"  sold  varies 
from  year  to  year,  and  depends  on  the  local  and  temporary  cir- 
cumstances of  the  particular  manor  or  district."*  It  is  not  till 
after  the  Black  Death  that  commutation  becomes  at  all  general. 
The  havoc  wrought  among  all  classes,^  and  especially  among  the 
labouring  classes,  gave  a  severe  shock  to  the  old  economic  order, 
and  strengthened  the  existing  tendency  to  substitute  the  new  cash 
nexus  for  the  old  labour-service  nexus. 

It  would  be  a  mistake  to  attribute  too  permanent  and  specific 
an  effect  to  the  Black  Death.^  But  it  is  clear  that  it  did  much  to 
break  up  the  solidarity  of  the  existing  agricultural  organization 
of  the  manor.''  That  organization  depended  for  its  permanence 
on  two  main  conditions,  firstly,  that  the  labour  services  demanded 
were  on  the  whole  fair,  having  regard  to  the  economic  conditions 
of  the  state ;  and  secondly,  seeing  the  ease  with  which  a  villein 
might  escape,  that  the  population,  as  a  whole,  had  no  other  more 
attractive  careers  open  to  them  if  they  deserted  the  manor. ^     Both 

1  Vinogradoff,  Villeinage  328-333. 

-Ibid  307,  citing  R.H.  ii  815a,  "  dabit  8  solidos  per  annum  pro  operibus  suis  qui 
solidi  poterunt  mutari  in  aliud  servicium  ad  valorem  pro  voluntate  domini ;  "  Ramsey 
Cart,  i  pp.  325,  434,  487;  ii  32;  in  the  Eynsham  Cart,  i  no.  291  (1253)  we  have  a 
commutation  of  a  converse  kind — the  abbot  commutes  his  duty  to  give  a  dinner  on 
St.  Bartholomew's  Day  to  the  men  of  Bampton  for  eighteenpence  annually. 

2  History  of  a  Cambridgeshire  Manor,  E.H.R.  417-439 ;  Development  of  a  Norfolk 
Manor  47,  48  ;  Page,  The  End  of  Villeinage  in  England  45,  46,  gives  a  table  showing 
that  out  of  81  manors  44  were  worked  wholly  by  labour  services  ;  on  22  these  services 
supplied  half  the  labour ;  on  9  they  supplied  only  a  small  part ;  and  only  on  6  were 
the  services  abolished. 

■*  Development  of  a  Norfolk  Manor  47,  48 — the  increase  in  the  number  of  works 
sold  between  1273  and  1306  "  does  not  appear  to  be  a  consequence  of  the  working  of 
general  causes  or  to  indicate  an  advance  toward  complete  commutation.  On  the  con- 
trary, a  close  examination  of  the  rolls  seems  to  show  that  local  and  temporary  causes 
suffice  to  explain  the  change." 

'  The  evidence  of  the  wills  proved  in  the  London  Court  of  Hustings  is  clear 
evidence  for  London,  see  Calendar  i  xxvii,  xxviii. 

•5  See  Vinogradoff,  E.H.R.  xv  779,  780. 

'  Economic  Development  of  a  Norfolk  Manor  51-53 ;  E.H.R.  ix  438  Maitland 
says  that  at  Wilburton  between  1350  and  1410  the  lord  has  great  difficulty  in  getting 
new  and  keeping  old  tenants,  but  that  he  still  gets  a  considerable  quantity  of  works 
from  the  old  tenants ;  Page,  op.  cit.  59-65. 

^Vinogradoff,  Villeinage  158,  159,  "Every  page  of  the  documents  testifies  to 
frequent  migration  from  the  manors  in  opposition  to  the  express  will  of  the  land- 
owners. The  surveys  tell  of  serfs  who  settle  on  strange  land  even  in  the  vicinity  of 
their  former  home.     It  is  by  no  means  exceptional  to  find  mention  of  enterprising 


204  THE  LAND  LAW 

these  conditions  ceased  to  exist  in  the  latter  part  of  the  fourteenth 
and  in  the  fifteenth  centuries.  With  the  scarcity  of  labour  wages 
rose.  At  the  same  time  the  growth  of  manufacturing  industries 
caused  a  demand  for  more  labour  in  the  towns  and  even  in  the 
villages.^  The  legislature  endeavoured  to  keep  down  the  price  of 
labour  by  the  Statutes  of  Labourers ;  ^  and  the  working  of  these 
statutes,  the  provisions  of  which  tended  to  become  progressively 
more  severe,  must  have  embittered  the  relations  between  employer 
and  employed ;  and  the  more  so  because,  owing  to  the  economic 
conditions,  the  labourers  were  becoming  prosperous,  and  saw 
that,  but  for  this  legislation,  they  might  be  still  more  prosperous.^ 
The  proper  working  of  the  old  system  required  the  willing  co- 
operation of  lord  and  tenant.  The  tenants  now  banded  themselves 
together  in  "  conventicles  "  to  resist  the  demands  made  upon  them.^ 
Sometimes  they  questioned  the  lord's  rights  in  courts  of  law,  as- 
serting that  they  were  entitled  to  the  privileges  of  the  tenants  on 
the  Ancient  Demesne  of  the  crown.  ^  Tenants  all  over  the  country, 
especially  the  holders  of  the  smaller  plots,  abandoned  their  land 
for  the  more  profitable  occupations  either  of  hired  labourers  upon 
the  land,  or  of  artisans,  or  of  soldiers  of  the  crown,  or  of  paid 
retainers  of  some  great  lord.^  Ejection  from  the  tenement,  the 
effectual  sanction  of  the  old  regime,  had  now  no  terrors.  Some 
lords  accepted  the  situation  and  granted  out  the  land  for  short 
terms  at  a  money  rent,  others  tried  to  insist  upon  their  rights.^ 

landlords  drawing  away  the  population  from  their  neighbours'  manors.  The  fugitive 
villein  and  the  settler  who  comes  from  afar  are  a  well-marked  feature  of  this  feudal 
society." 

1  Oman,  The  Great  Revolt  of  1381,  at  pp.  167-182  gives  the  detailed  Poll  Tax 
returns  of  Hinckford  Hundred  in  Essex;  he  remarks,  at  p.  182,  on  "the  enormous 
proportion  of  artisans  in  some  of  the  villages;"  "the  figures  suggest  that  these 
places  are  small  industrial  centres."  In  fact  the  restrictions  on  communal  industry 
in  the  towns  drove  trade  into  the  country  ;  and  this  tendency  was  strengthened  by  the 
pressure  of  taxation  on  a  population  much  diminished  by  the  Black  Death,  Select 
Cases  before  the  Council  (S.S.)  Ixxx. 

^  Vol.  ii  459-464. 

3  Oman,  The  Great  Revolt  9,  citing  Piers  Plowman  ix  330-337. 

^  Ibid  10 ;  Page,  op.  cit.  55  n.  i. 

^  For  Ancient  Demesne  see  below  263-269 ;  the  statute  i  Richard  II.  c.  6  recites 
that,  "  Villeins  and  tenants  of  land  in  villeinage  withdraw  their  customs  and  services 
from  their  lords,  having  attached  themselves  to  other  persons,  who  maintained  and 
abetted  them;  and  who,  under  colour  of  exemplifications  from  Domesday  of  the 
manor  and  villes  in  which  they  dwelt,  and  of  wrong  interpretation  of  those  exempli- 
fications, claimed  to  be  quit  and  discharged  of  all  manner  of  service  either  of  their 
body  or  of  their  lands,  and  would  suffer  no  distress  or  other  course  of  justice  to  be 
taken  against  them  ;  the  villeins  aiding  their  maintainers  by  threatening  the  officers 
of  their  lords  with  peril  to  life  and  limb,  as  well  by  open  assemblies  and  by  con- 
federacies to  support  each  other ;  "  Domesday  was  the  only  evidence  by  which  such 
tenure  could  be  proved,  below  264 ;  Hale,  Domesday  of  St.  Paul's  (C.S.)  Ivii,  Iviii, 
thinks  that  this  is  the  meaning  of  this  passage. 

^  Page,  op.  cit.  55,  56 ;  at  Wilburton  it  is  chiefly  the  cottagers  who  desert  between 
1350  and  1410,  E.H.R.  ix  438. 

"^  Page,  op.  cit.  60-64,  gives  a  table  showing  the  progress  made  by  the  practice  of 
commutation. 


PROCESS  OF  TRANSITION  205 

W^  It  was  while  the  agricultural  system  was  passing  through  this 
transition  stage  that  the  revolt  of  1381  broke  out.  It  was  far 
from  being  exclusively  a  villein  revolt.  The  incompetence  of  the 
government ;  the  inquisitorial  measures  taken  to  punish  the  evasion 
of  an  unfair  tax ;  ^  municipal  disorders  caused,  sometimes  by  the 
hostility  of  the  townsfolk  to  their  lords,^  sometimes  by  the  hos- 
tility of  the  mass  of  the  citizens  to  a  ruling  oligarchy,^  sometimes 
by  feuds  among  the  ruling  oligarchy ;  *  the  socialistic  and  com- 
munistic teaching  of  the  friars  ^ — all  combined  with  the  harshness 
with  which  some  lords  made  use  of  the  consequences  of  unfree 
status,  unfree  tenure,  and  the  Statutes  of  Labourers,  to  produce 
the  sudden  outbreak.^  All  districts  both  in  town  and  country 
had  their  special  grievances.  A  spark  could  cause  an  explosion 
because  everywhere  there  was  explosive  material  sufficient.  But 
though  the  material  was  all  explosive  its  character  in  other  re- 
spects differed  from  district  to  district. 

Neither  the  revolt  nor  its  suppression  had  much  effect  upon 
the  transition  from  the  labour-service  system  to  the  rent-paying 
system  except  to  accelerate  it.''^  We  shall  see  that  the  legislation 
which  followed  the  Black  Death  and  the  revolt  of  1 381  affected 
the  question  of  unfree  status  rather  than  the  question  of  unfree 
tenure.^  The  practice  of  leasing  land  for  terms  of  years  and  of 
commuting  labour  service  for  money  payments  spread  rapidly  in 
the  later  years  of  the  fourteenth  century,  and  continued  to  make 
way  after  the  effects  of  the  Black  Death  and  the  peasants'  revolt 
had  ceased  to  operate,  simply  because  the  old  system  was  becom- 
ing more  and  more  impossible.^  It  is  clear  from  the  terms  of 
some  of  the  leases  that  the  lords  hoped  that  this  new  order  would 
be  temporary.  ^^     In  fact,  it  was  irrevocable.     The  tables  printed 

^  Oman,  op.  cit.  chap,  ii  and  App.  4. 
Kj^    2  E.g.  at  St.  Albans  and  Bury,  Oman,  op.  cit.  91-96,  105-108. 
■*    'E.g.  in  London,  Oman,  op.  cit.  15-17.  '^Ibid  18,  55,  56. 

'  Sir  Charles  Oman  shows,  op.  cit.  19-21,  that  it  was  the  friars  with  their  doctrine 
of  evangelical  poverty  rather  than  Wycliffe's  Poor  Priests  who  preached  revolution. 

^  The  Anomial  Chronicle  of  St.  Mary's,  translated  by  Sir  Charles  Oman,  op.  cit. 
App.  5,  tells  us  that  Sir  Simon  Burley  just  before  the  outbreak  had  arrested  a  man  at 
Gravesend  as  his  born  serf;  '*  and  the  good  folks  of  the  town  came  to  him  to  make 
a  bargain  for  the  man ; "  but  he  demanded  the  impossible  sum  of  ;^30o.  "  And  the 
good  folks  prayed  him  to  mitigate  his  demand,  but  could  not  come  to  terms  .  .  . 
though  they  said  to  Sir  Simon  that  the  man  was  a  good  Christian  and  of  good  dis- 
position, and  in  short  that  he  ought  not  to  be  so  undone.  But  the  said  Sir  Simon 
was  of  an  irritable  and  angry  temper  .  .  .  and  for  haughtiness  of  heart  he  bade  his 
Serjeants  bind  the  said  man  and  to  take  him  to  Rochester  Castle  to  be  kept  in  custody 
there :  from  which  there  came  later  great  evil  and  mischief." 

'  Tawney,  the  Agrarian  Revolution  in  the  Sixteenth  Century  90-91. 

^  Below  500,  503. 

^  Page,  op.  cit.  table  at  pp.  7S-82 ;  the  same  phenomenon  appears  at  Wilburton 
after  1410,  E.H.R.  ix  438 ;  and  at  Forncett,  Development  of  a  Norfolk  Manor  57,  58. 

^0  Development  of  a  Norfolk  Manor  76,  77,  and  see  the  series  of  conveyances 
relating  to  a  piece  of  the  demesne  from  1422-1563  given  in  App.  XI ;  Page,  op.  cit. 
84,  85  ;  E.H.R.  ix  438. 


206  THE  LAND  LAW 

by  Mr.  Page  show  us  that  by  the  middle  of  the  fifteenth  century 
labour  services  had  been  generally  commuted  for  money  rents. 
There  were  one  or  two  survivals  of  the  older  order,  but  they 
were  only  survivals.^  "With  the  completion  of  the  transition 
from  praedial  services  to  money  rents  tenure  in  villeinage  may  be 
said  to  have  come  to  an  end.  .  .  .  The  essence  of  villein  tenure 
had  consisted  in  the  uncertainty  of  the  tenant's  services,  and  when 
the  old  agricultural  services  were  commuted  for  a  fixed  money 
payment  this  uncertainty  passed  away. "  ^  The  change  is  marked 
by  a  gradual  change  in  the  name  of  the  tenure.  Tenure  by  copy 
of  the  court  roll  tends  to  replace  the  old  tenure  in  villeinage.^ 
The  term  ''villein"  tends  to  be  more  strictly  confined  to  persons 
whose  status  is  unfree.* 

The  Effect  of  this  Transition  on  the  Land  Law 

We  have  already  seen  that  the  unfree  tenant  had  no  locus 
standi  in  the  courts  of  common  law,  but  that  he  was  well  enough 
protected  by  the  custom  of  the  manorial  court. ^  As  time  went  on, 
the  custom  which  that  court  administered  tended  to  become  more 
and  more  fixed  and  stable.  In  the  cases  which  came  incidentally 
before  the  royal  courts  it  could  be  pleaded  and  reasoned  upon 
almost  in  the  same  manner  as  a  copyhold  custom  would  be  pleaded 
and  reasoned  upon  at  the  present  day.®  Indeed,  in  1390  it  was 
said  that  perhaps  the  king's  court  might  interfere  if  the  lord  de- 
clined to  hold  a  court  for  his  tenants.'''  But  the  king's  court  as 
yet  declined  to  interfere  between  lord  and  tenant.     The  lord  has 

1  For  some  survivals  from  the  late  fifteenth,  sixteenth,  and  seventeenth  centuries 
see  Tawney,  op.  cit.  52-53  ;  at  a  still  later  period  lessees  sometimes  covenanted  to  per- 
form labour  services  for  their  landlords,  Bk.  iv  Pt.  II.  c.  i  §  7. 

2  Page,  op.  cit.  83. 

^  We  see  the  admission  and  surrender  as  early  as  1339,  Y.B.  13,  14  Ed.  III. 
(R.S.)  102 ;  we  see  a  reference  to  the  "  recordum  curiae  et  rotulum  "  in  a  document 
dated  about  1320,  Domesday  of  St.  Paul's  (C.S.)  156;  we  get  copyholders  eo 
nomine  mentioned  in  Y.B.  42  Ed.  III.  Mich.  pi.  9,  "  Et  trove  fuit  per  verdict  que 
le  dit  J  tient  meme  le  terre  del  Prior  per  copy  de  court  roll  a  volunte  le  Prior ;  "  cp. 
the  Court  Roll  of  the  manor  of  Forncett  for  1400,  Development  of  a  Norfolk  Manor 
App.  X. ;  but  it  probably  did  not  become  general  till  the  end  of  the  fifteenth  century, 
as  in  the  sixteenth  century  Fitzherbert,  Nat.  Brev.  12c,  could  say  that  copyholder 
"  was  but  a  new-found  term." 

^  This  distinction  had  always  been  recognized,  vol.  ii  202,  264,  577  ;  above  199  ; 
but  the  fact  that  Littleton  §  73  uses  the  word  "tenants,"  while  Coke  comments  on 
it  as  if  it  were  "  tenements,"  see  Challis,  Real  Property  (3rd  ed.)  25  n,  may  show 
that  the  separation  between  status  and  tenure  was  less  sharp  when  Littleton  wrote 
than  in  the  days  of  Coke ;  and  this  is  the  more  probable  if  we  consider  the  nature  of 
the  settlement  arrived  at  as  to  the  copyholder's  position,  below  211-212. 

^  Vol.  ii  30,  378-381. 

«  Y.BB.  12,  13  Ed.  III.  (R.S.)  228,  230;  13,  14  Ed.  III.  (R.S.)  102. 

'  Fitz.,  Ab.  Faux  Jugement  pi.  7,  "  Thirning. — Je  vey  en  bank  le  roy  ou  plee 
fuit  pendant  en  court  le  seigneur  entre  deux  que  fueront  al  volunte  que  brief  fuit 
grantz  al  seigneur  al  distreindre  le  seigneur  de  faire  droit  entre  eux,  etc.  Candish. 
— Et  ceo  ne  fuit  semble  a  ceo  cas,  car  le  seigneur  puit  estre  constrain  de  faire  droit." 


EFFECT  OF  THIS  TRANSITION         207 

the  freehold.  The  tenant  cannot  question  his  doings,  even 
indirectly  by  the  writ  of  false  judgment^  It  is  clear,  however, 
that  when  the  labour-service  system  gave  place  to  the  rent  system 
much  of  the  original  reason  for  the  non-interference  of  the  royal 
courts  ceased.  Protection  given  by  the  royal  courts  would  no 
longer  mean  an  interference  with  or  an  enquiry  into  the  agricultural 
economy  of  the  manor ;  ^  it  would  mean  only  the  due  enforcement 
of  a  bargain,  the  terms  of  which  could  be  easily  ascertained  by 
looking  at  the  rolls  of  the  manor  court.  But  this  change  in  cir- 
cumstances would  not  by  itself  have  led  the  common  law  courts 
to  interfere.  There  were  too  many  precedents  which  laid  it  down 
that  such  tenants  had  no  interest  save  at  the  will  of  the  lord.  It 
was  too  clear  that  the  freehold,^  which  was  acquiring  a  meaning 
charged  with  technical  sanctity,'^  was  the  lord's  and  the  lord's 
alone.  But  the  conversion  of  arable  land  into  pasture,  which 
seemed  to  be  leading  to  the  depopulation  and  devastation  of  the 
country,  and  the  high-handed  proceedings  of  the  lords,  who  took 
advantage  of  the  uncertainty  of  the  terms  of  the  tenure  under  the 
new  leases  granted  to  tenants,  made  some  interference  necessary 
in  the  public  interest.^  Much  of  the  old  communal  feeling  upon 
which  the  custom  of  the  manor  rested  had  been  destroyed. 
Rules  and  observances  which  were  clear  enough  to  persons  who 
were  accustomed  to  the  social  and  economic  conditions  of  the  old 
order   badly   wanted    definition  when   they  came  to  be  applied 

1  Fitz.,  Ab.  Faux  Jiigement  pi.  7.  2  Above  33. 

^Fitz.,  Ab.  Faux  jfugement  pi.  7,  the  following  statement  was  accepted  by  the 
court,  "  La  custume  de  maner  et  la  nature  de  tenancy  est  tiel  que  ceux  del  maner 
teignent  lour  terres  forsque  al  volunte  le  seigneur,  et  ils  et  lour  heires  serra  inheritez 
al  volunte  de  seigneur  solonque  la  custume  del  maner,  issint  que  les  tenants  or  n'ont 
riens  forsque  al  volunte  le  seigneur,  et  le  franc- tenement  est  en  le  seigneur." 

-•Vol.  ii354,  581. 

^  For  a  case  of  1553  see  Inhabitants  of  Whitby  v.  York,  Select  Pleas  in  the 
Court  of  Requests  (S.S.)  198-201 ;  for  a  case  of  1504  turning  upon  an  oppressive 
action  of  the  Duke  of  Buckingham,  see  L.Q.R.  ix  364  n.  i ;  on  the  whole  subject 
see  E.H.R.  viii  684-696;  it  must  have  been  sometimes  difficult  to  distinguish  be- 
tween the  tenant  at  will  at  common  law  and  the  copyholder,  owing  to  the  uncertain 
practice  in  letting  the  land  at  the  end  of  the  fourteenth  and  the  beginning  of  the 
fifteenth  century,  below  210  n.  2  ;  of  course,  when  once  the  character  of  the  letting 
had  been  ascertained  the  legal  distinction  was  clear,  Litt.  §  82.  Prudent  landlords 
sometimes  got  surrenders  from  their  copyholders,  and  turned  them  into  tenants  at 
will,  see  Select  Pleas  in  the  Court  of  Requests  (S.S.)  81  for  such  action  of  the 
abbot  of  Ramsey ;  and  the  lords  were  able  the  more  easily  to  do  this  because  the 
copyholders,  impoverished  by  the  ravages  made  by  the  armies  who  fought  the  wars 
of  the  Roses,  could  not  fulfil  their  liabilities,  see  extract  from  the  proceedings  of  the 
Court  of  Requests  cited  by  Cunningham,  Industry  and  Commerce  i  455  n.  8.  Prob- 
ably the  action  taken  by  landowners  at  this  critical  period  influenced  the  whole  future 
interest  of  their  property,  cp.  P.  and  M.  i  386,  387 ;  it  made  all  the  difference  to  the 
lords  whether  their  lands  were  let  permanently  to  copyholders  at  fee  farm  rents  which 
came  to  be  ridiculously  low  (below  212),  or  whether  they  were  let  merely  for  life 
or  years  at  common  law.  As  we  shall  see  (below  257-259)  the  rule  was  not  yet 
quite  recognized  that  the  lord  could  not  convert  one  tenure  into  another,  or  change  as 
he  pleased  the  customs  of  old  annexed  to  certain  lands. 


208  THE  LAND  LAW 

under  other  conditions,  and  by  persons  who  wished  in  their  own 
interest  to  put  another  meaning  upon  them.  What  served  well 
enough  when  the  will  of  the  lord  was  substantially  in  agreement 
with  the  custom  of  the  manor  no  longer  served  when  the  will  of 
the  lord  and  the  custom  of  the  manor  pulled  different  ways. 

Under  these  circumstances  it  is  not  surprising  to  find  a  petition 
from  the  copyholders  of  the  manor  of  Winkfield  to  the  council 
against  the  Abbot  of  Abingdon  as  early  as  1 394  ;  ^  and  to  learn 
that  the  first  interferences  on  the  part  of  the  government  in  the 
relation  of  lord  and  copyholder  come  from  the  Chancery  in 
Henry  VI. 's  reign.^  As  we  have  seen,  the  Chancery  at  this 
period  was  intimately  connected  with  the  council ;  ^  and  it  was 
the  council  which  was  responsible  for  maintaining  the  peace  and 
wellbeing  of  the  country.  Moreover,  we  have  seen  that  there  was 
a  constant  tradition  from  the  thirteenth  century  to  Coke  that  the 
lord  had  certain  equitable  powers  in  dealing  with  his  copyholders. 
Lawyers  were  familiar  with  the  idea  that  the  copyholder  could 
petition  his  lord  to  do  justice.*  A  petition  to  the  chancellor, 
who  was  coming  to  be  connected  with  cases  which  demanded 
equitable  interference,  would  not  be  a  very  startling  innovation. 
But  we  have  seen  also  that  the  extension  of  the  jurisdiction  of 
the  Chancery  was  beginning  to  excite  the  jealousy  of  the  common 
lawyers ;  ^  and  some  recommended  that  the  competition  of  the 
chancellor  should  be  met  by  a  greater  liberality  in  allowing  actions 
of  trespass  on  the  case.^  We  shall  see  that  the  pursuance  of  this 
line  of  policy  won  for  the  common  law  courts  a  jurisdiction  over 
the  law  of  contract,  which  might  otherwise  have  slipped  from  their 
grasp.'''  It  is  not  surprising,  therefore,  to  find  that  in  1467  and 
in  1 48 1  we  get  dicta  to  the  effect  that  the  interest  of  the  copy- 
holder might  be  protected  by  that  action.  In  1467  Danby,  C.J., 
said,  *'  If  the  lord  ousts  his  [copyhold]  tenant  he  does  him  a 
wrong,  for  his  tenant  is  as  well  inheritor  to  have  the  land  to  him 

1  Select  Cases  before  the  Council  (S.S.)  82-85,  and  Introd.  ciii-iv. 

2 Copyhold  Cases  in  Early  Chancery  Proceedings,  E.H.R.  xvii  296-303,  by 
Alexander  Savine;  the  earliest  case  cited  by  Mr.  Savine  is  February  4th,  17  Hy. 
VI.  Mr.  Savine  shows  that  Mr.  Leadam  dates  the  protection  given  by  the  royal 
courts  too  early;  on  the  other  hand,  Mr.  Leadam  shows  that  Professor  Ashley  places 
it  too  late,  E.H.R.  viii  684-696. 

3  Vol.  i  401-402,  404;  for  a  case  which  came  before  the  council  in  1462  see 
Select  Cases  before  the  Council  (S.S.)  114-115,  and  Introd.  cxvi-vii. 

^Vol.  ii  384;  Fitz.,  Ab.  Faux  Jugement  pi.  7,  Thirning  and  Cher i ton  agree 
with  Rykyll  that,  "  Vous  naver  autre  remedy  en  ceo  cas  mes  de  suer  al  seigneur  que 
ad  le  franc  tenement  per  peticion."  King  and  council  set  a  good  example.  We 
find  in  1443,  in  the  proceedings  of  the  council,  that  when  Henry  VI.  succeeded  to 
certain  manors  of  Lord  Tiptoft,  he  granted  out  new  leases  to  copyholders  on  the  old 
terms,  Nicolas  v  245,  246. 

^  Vol.  i  459. 

8  Y.B.  21  Ed.  IV.  Pasch.  pi.  g  (p.  23),  per  Fairfax,  J. 

'  Below  424. 


POSITION  OF  THE  COPYHOLDER     209 

and  his  heirs  according  to  the  custom  of  the  manor  as  any  man 
is  to  have  his  lands  at  common  law."^  In  1481  Brian,  C.J., 
said,  in  answer  to  counsel,  who  had  contended  that  if  the  lord 
ejected  a  copyhold  tenant  the  tenant  had  no  remedy  because  he 
held  at  will,  ''That  was  never  my  opinion,  and  I  believe  never 
will  be,  for  then  every  copyholder  in  England  would  be  ousted, 
wherefore  I  understand  that  always  if  he  pays  his  customs  and 
services,  and  the  lord  ousts  him,  he  will  have  an  action  of  trespass 
on  the  case  against  the  lord."^  How  far  these  dicta  were  acted 
on  at  the  end  of  the  fifteenth  century  could  only  be  ascertained 
by  examining  many  plea  rolls.^  Littleton  would  have  approved 
of  them  as  being  in  accordance  with  public  policy ;  ^  but  he  does 
not  venture  to  affirm  any  such  rule  of  law.  They  were,  however, 
incorporated  into  Littleton's  text  in  15  30.  As  so  incorporated 
they  were  commented  on  by  Coke,  and  thus  became  legally 
authentic  facts  of  English  legal  history.  On  the  whole,  having 
regard  to  the  action  of  the  Chancery,  and  to  the  relations  between 
the  Chancery  and  the  common  law,  it  is  not  improbable  that  there 
were  many  judges  prepared  to  act  upon  them. 

It  was  decided  in  1588  that  the  lessee  of  a  copyholder  could 
maintain  ejectment.^  The  result  of  this  decision  was  to  give  the 
copyholder  protection  by  the  same  form  of  action  as  that  which 
had  come  to  be  generally  used  by  the  freeholder,^  and  thus  to 
effect  a  unification  and  simplification  of  the  remedies  open  to  these 
two  different  classes  of  landowners. 

The  Settlement  of  the  Position  of  the  Copyholder 

It  was  not  till  the  sixteenth  century  that  the  legal  position  of 
the  copyholder  was  settled ;  and  as  the  amount  of  land  held  by 
this  tenure  was  large, '^  its  settlement  was  a  work  of  considerable 
difficulty.  All  the  causes  which  had  called  for  the  interference  of 
the  Chancery  under  Henry  VI.  and  Edward  IV.  were  present 
during  this  century  in  increased  strength.  It  was  the  century  of 
transition  from  mediaeval  to  modern ;  and  the  difficulties  caused 
by  the  change  from  the  old  order  to  the  new  were  further  in- 
creased by  the  fact  that  the  growing  demand  for  wool  caused  the 
conversion  of  an  ever-increasing  quantity  of  land  from  arable  to 

ly.B.  7  Ed.  IV.  Mich.  pi.  16.  2  Y.B.  21  Ed.  IV.  Mich.  pi.  27. 

3  See  L.Q.R.  vii  174. 

*§  77i  "The  lord  cannot  break  the  custom  which  is  reasonable  in  these  cases;  " 
§  82,  "  The  custom  of  the  manor  in  some  cases  may  aid  him  to  bar  his  lord  in  an 
action  of  trespass,  etc. ;  "  vol.  ii  581-582. 

5  Melwich  v.  Luter  (1588)  4  Co.  Rep.  26a. 

«Bk.  ivPt.  II.  c.  I  §  I. 

'  "  For  as  much  as  great  part  of  the  land  within  the  realm  is  in  grant  by  copy," 
Heydon's  Case  {1584)  3  Co.  Rep.  at  f.  8b. 

VOL.   III.— 14 


210  THE  LAND  LAW 

pasture.^  The  substitution  of  money  rents  for  labour  services  had 
caused  a  very  general  uncertainty  as  to  the  terms  upon  which 
many  of  the  tenants  held  their  lands.  ^  Hence  the  landowners 
attempted  not  only  to  enclose  common  land,  but  also  to  evict 
their  tenants.  Such  attempts  become  common  under  the  ex- 
travagant government  of  the  earlier  years  of  Henry  VHL's  reign ;  ^ 
and  the  tendency  in  this  direction  was  not  diminished  by  the 
confiscation  of  the  monastic  lands.  As  Leadam  says,^  "The 
transfer  occurred  at  a  moment  when  the  impoverishment  of  the 
landlords  by  foreign  wars,  taxation,  and  extravagance,  and  the 
enrichment  of  the  commercial  classes  in  a  period  of  internal  peace, 
had  created  a  new  order  of  men  whose  instinct  was  to  become 
possessors  of  land  and  to  treat  their  acquisitions  not  simply  as  an 
accession  of  feudal  dignity  but  as  an  investment  to  be  made 
remunerative."  It  was  not  without  aid  of  the  legislature,  royal 
commissions,  and  the  action  not  only  of  the  courts  of  common 
law,  but  also  of  the  courts  of  Chancery,  Requests,  and  the  Star 
Chamber  that  the  conflicting  rights  of  landlords  and  tenants  were 
settled  and  the  position  of  the  copyholder  ascertained. 

Many  statutes  were  passed  to  prohibit  the  conversion  of  arable 
into  pasture,  and  to  stop  the  **  pulling  down  of  towns,"  and  the 
depopulation  which  this  process  involved.^  A  royal  commission 
was  appointed  in  1517  to  deal  with  the  question  of  enclosures.* 
The  court  of  Chancery  still  continued  to  exercise  an  active  juris- 
diction in  copyhold  cases ;  ^  and,  by  the  admission  of  the  courts 
of  common  law  themselves,  gave  remedies  which  they  could  not 

1  Cunningham,  History  of  Industry  362,  468,  469  ;  Royal  Hist.  Soc.  Tr.  vi  170. 

2  Page,  op.  cit.  85,  86.  At  Fomcett  we  get  a  period  when  the  demesne  as  well 
as  the  land  of  the  unfree  tenants  is  leased  on  short  terms,  before  the  period  when  the 
demesne  is  let  as  copyhold  at  a  free  farm  rent,  and  conveyed  in  the  manor  court  like 
copyhold,  Development  of  a  Norfolk  Manor  57,  76  and  App.  XI. ;  the  novelty  of  these 
lettings  was  sometimes  fatal  to  tenants  who  claimed  the  privileges  of  copyholders, 
see  Foreacre  v.  Frauncys  (1544)  Select  Cases  in  the  Court  of  Requests  (S.S.)  169-172  ; 
Abbot's  Ripton  v.  St.  John,  ibid  99-101 ;  above  207  n.  5  ;  below  212. 

3  More,  Utopia,  "  Your  shepe  that  were  wont  to  be  so  meke  and  tame  and  so 
smal  eaters,  now,  as  I  heare  saye  .  .  .  consume  and  destroye  and  devoure  whole 
fieldes,  howses,  and  cities." 

4  Select  Pleas  in  the  Court  of  Requests  (S.S.)  Ivi ;  see  Royal  Hist.  Soc.  Tr.  vi 
189-191  for  the  enclosures  made  by  the  Duke  of  Buckingham.  A  good  illustration 
of  what  had  been  going  on  is  afforded  by  D'Ewes'  address  to  his  tenants  in  1631 ;  he 
tells  them  that  his  father  had  taken  a  fine  of  two  years'  value  on  alienation  and  death 
— but  in  so  doing,  "  he  dealt  not  justly  and  equally ;  for  he  was  a  purchaser  at  a  very 
dear  rate :  and  besides  some  of  you  know  that  the  fines  and  casual  profits  were 
warranted  to  him  that  they  should  amount  unto  ;^ioo  yearly  for  certain  years  after 
his  purchase,  so  that  he  was  thereby  necessitated  to  take  the  same  rates  and  follow 
the  same  proportions,  which  had  been  formerly  observed,"  Autobiography  ii  35. 

^  For  an  account  of  this  legislation  see  Bk.  iv  Pt.  I.  c.  i. 

^  See  the  Domesday  of  Enclosures,  edited  by  Leadam,  Royal  Hist.  Soc. 

'  It  would  appear  from  the  Plumpton  Corr.  (C.S.)  238,  240,  that  copyholders  in 
Henry  VIII.'s  reign  were  very  ready  to  appeal  to  the  chancellor  if  they  thought  that 
they  were  being  oppressed  by  their  lords. 


POSITION  OF  THE  COPYHOLDER     211 

give.^  In  addition  to  the  court  of  Chancery,  the  court  of  Requests 
and  the  Star  Chamber  were  appealed  to  by  both  lords  and  tenants. 
In  fact,  as  many  of  these  cases  show,  on  the  settlement  of  the 
position  of  the  copyholder  the  peace  and  prosperity  of  the  state 
to  a  large  extent  depended.  It  is  well  to  remember  that  the  un- 
remedied grievances  of  French  peasants,  who  held  by  a  tenure 
very  similar  to  copyhold  tenure,  were  among  the  most  powerful 
causes  of  the  first  French  Revolution.^  The  strong  government 
of  the  Tudors  acting  through  the  Council,  Parliament,  and  all  the 
courts  new  and  old,  did  much  to  remedy  the  grievances  of  the 
copyholder,  and  to  convert  the  copyholders'  interest  into  a  form 
of  property,  inconvenient  it  may  be,  but  still  a  form  of  property 
of  considerable  value  to  the  copyholder.  And,  if  we  can  believe 
Roger  North,  the  position  of  the  copyholder  was  not  improved 
when,  in  the  latter  half  of  the  seventeenth  century,  the  strict 
control  of  the  central  government  was  relaxed.^  In  fact  the 
change  thus  effected  was  similar  in  its  nature  to  the  change  which 
was  taking  place  in  respect  to  land  held  by  the  free  tenures.  In 
both  cases  the  purely  proprietary  aspect  of  land-holding  was 
emphasized,  and  the  effects  and  consequences  of  tenure  were 
diminished.  No  doubt  the  process  was  less  complete  in  the  case 
of  copyhold ;  but  its  tendency  was  in  the  same  direction. 

In  effect  the  settlement  arrived  at  proceeded  somewhat  on  the 
following  lines  :  If  the  copyholders  held  land  which  was  anciently 
copyhold,  the  lords  were  compelled  to  respect  the  customs  of  the 
manor  and  the  terms  of  the  tenure.^  On  the  other  hand,  the  rule 
was  enforced  that  no  land  was  copyhold  unless  it  was  so  by  pre- 
scription.^ Copyhold  tenure,  like  the  manor  itself,  must  be  time 
out  of  mind.  This  secured  the  tenants  of  lands  anciently  copy- 
hold, who  had  perhaps  been  on  the  land  for  generations,  and  left 
the  lord  free  to  develop  as  he  pleased  other  parts  of  his  property 
which  could  not  be  proved  to  have  been  anciently  let  as  copyhold. 
In  this  way  the  lord  retained  a  free  hand  over  his  demesne,  and 
over  such  parts  of  the  waste  as  he  had  enclosed,  provided  that  he 
obeyed  the  statutes  relating  to  enclosures,  and  provided  that  he 
left  sufficient  common  not  only  for  the  freeholders  but  also  for 
the   copyholders,  a   decision   in  the   reign    of  Elizabeth  having 

1  It  was  held  in  Ford  v.  Hoskins  (1615)  Cro.  Jac.  368  that  an  action  would  never 
lie  against  the  lord  of  a  manor  who  refused  to  admit  a  copyholder,  but  that  he  might 
obtain  relief  in  Chancery. 

■-*  Maine,  Early  Law  and  Custom  299  seqq. 

3  Lives  of  the  Norths  i  31;  cf.  Tawney,  the  Agrarian  Problem  in  the  Sixteenth 
Century  397-400. 

4  Inhabitants  of  Whitby  v.  York,  Select  Cases  in  the  Court  of  Requests  (S.S.) 
(1553)  198;  E.H.R.  viii  690,  691. 

5  Litt.  §  73 ;  E.H.R.  viii  688,  689 ;  Kent  and  others  v.  Seynt  John,  Select  Cases 
in  the  Court  of  Requests  (1543-1544)  64 ;  Foreacre  v.  Frauncys  (1544)  ibid  loi. 


212  THE  LAND  LAW 

brought  the  copyholders  within  the  statutes  of  Merton  and  West- 
minster 11.^  Thus  the  copyhold  tenant  got  a  fully-protected 
interest  in  the  land  on  the  terms  upon  which  his  services  had 
been  commuted  in  the  fourteenth  or  fifteenth  centuries.  He  was 
fortunate  in  being  thus  able  to  hold  upon  terms  settled  at  so 
early  a  date.  The  general  fall  in  the  value  of  money  which  took 
place  towards  the  end  of  the  sixteenth  century  caused  these  fixed 
payments  to  be  much  less  than  the  real  value  of  the  land.  And 
so  the  copyholder  got  a  substantial  interest  in  the  land,  which 
interest  is  really,  as  Maitland  has  said,  *'  an  unearned  increment, 
the  product  of  the  American  mines."  ^ 

No  doubt  in  individual  cases  it  depended  a  good  deal  upon 
chance,  or  upon  the  action  of  lords  in  the  fourteenth  and  fifteenth 
centuries,  whether  a  given  piece  of  land  became  copyhold  or  not ;  ^ 
and  this  uncertainty  gave  rise  in  the  sixteenth  and  seventeenth 
centuries  to  litigation,^  and  even  in  one  case  to  legislation.^  At 
the  same  time  we  cannot  doubt  that  in  many  cases  copyhold  was 
really  anciently  copyhold,  i.e.  land  originally  let  upon  an  unfree 
tenure.  The  rule  that  copyhold  must  be  by  prescription  was  a 
rough  working  rule  which  made  for  a  fair  settlement  of  the  con- 
flicting claims  of  lords  and  tenants.  The  rule  itself  cannot  be 
proved  to  be  universally  true — in  individual  cases  it  is  certainly 
untrue.  Technically,  it  is  one  instance  of  the  comparatively  new 
doctrine  which  forbade  lords  to  change  at  their  pleasure  the 
quality  of  the  tenure  of  their  lands  and  the  customs  upon  which 
they  were  held.^  But  the  rule  is  more  than  a  mere  technicality. 
It  has  some  facts  behind  it.  Like  the  distinction  drawn  in  earlier 
days  between  free  and  unfree  tenure  it  rested  on  a  basis  of  fact, 
it  made  for  peace  between  conflicting  interests,  and  it  had  im- 
portant effects  upon  the  fabric  of  the  law. 

We  shall  see  that  the  courts  of  common  law  gradually  as- 
similated the  law  of  copyhold  tenure  to  the  law  of  free  tenure, 
statutory  and  otherwise,  in  so  far  as  that  law  did  not  conflict  with 
the  custom  of  the  manor. '^  Thus  tenure  by  copyhold  became 
merely  a  form  of  land-ownership,  without  servile  taint.     A  father 

^  For  these  statutes  see  above  147 ;  Bk.  iv  Pt.  I.  c.  i ;  Leadam,  Select  Cases  in 
the  Court  of  Requests  (S.S.)  lix,  says  that  he  has  a  note  of  such  a  decision,  but  that 
he  has  not  been  able  to  verify  it ;  cp.  Williams,  Commons  123. 

2E.H.R.  ix  439.  3  Above  207  n.  5. 

^Cullyer  v.  Knyvett  (Ed.  VI.)  Calendars  of  Chancery  Proceedings  (R.C.)  i 
cxxxvii-ix;  Hutchings  v.  Strode  {1635)  Nels.  26. 

^  A  statute  was  passed  in  1548,  2,  3  Edward  VI.  c.  12,  to  validate  certain  demises 
of  land  to  be  held  as  copyhold  which  had  been  made  by  the  Duke  of  Somerset,  which 
demises  were  not  valid,  as  the  land  was  not  anciently  copyhold ;  cp.  also  Lords' 
Journals,  July  15,  1536,  where  there  is  mention  of  "  Billa  quod  homines  suas  terras 
possidere  debeant  et  gaudere  in  quibus  Dominus  Rocheforde,  Henricus  Norreis  et 
alii  seisinam  habuerunt." 

6  Below  257-259.  '  Bk.  iv  Pt.  II.  c.  i  §  8. 


TERM  OF  YEARS  213 

could  settle  copyholds  on  his  daughters  in  consideration  of 
natural  love  and  affection,  just  as  he  might  settle  any  other  form 
of  property ;  ^  for,  as  Coke  says,  **  in  the  point  of  service  a  man 
can  scarce  discern  any  difference  between  freehold  lands  and  copy- 
hold lands."  ^  The  differences  had  become  merely  historical.  The 
wise  settlement  arrived  at  in  the  Tudor  period  affords  abundant 
justification  for  Coke's  eloquent  comparison  between  the  present 
and  the  past  condition  of  the  copyholder.^  Time  had  indeed 
dealt  very  favourably  with  copyholders  in  divers  respects. 


§  II.  The  Term  of  Years 

We  have  seen  that  in  the  twelfth  century  the  lawyers  were 
led,  by  an  unfortunate  application  of  the  Roman  law  of  possession, 
to  deny  any  seisin  to  the  lessee  for  years.*  The  lessee  may,  it  is 
true,  repel  force  by  force;  he  may,  that  is,  resist  the  would-be 
ejector  if  he  can ;  ^  but  all  the  legal  remedy  he  has  is  a  personal 
action  against  his  lessor  on  the  covenant,  by  which  he  may 
recover  damages  or,  if  the  term  has  not  expired,  possession  of  the 
land  leased.^  As  against  third  persons  he  has  probably  no 
remedy  at  all.'''  An  ejectment  by  a  third  person  is  a  wrong  to 
the  freeholder,  and  it  is  the  freeholder,  therefore,  and  the  free- 
holder alone,  who  can  bring  the  assize  of  novel  disseisin.  The 
lessee's  right  is  a  jus  in  personam,  and  not  a  just  in  rem.  It 
followed  from  this  that  his  rights  were  postponed  to  the  rights  of 
third  persons  who  could  claim  some  interest  in  the  freehold.     If 

^  History  of  Castle  Combe  336,  337 — a  settlement  in  1631  by  the  lord  of  the  manor 
on  his  two  daughters  of  customary  land,  "  Reddendo  domino  .  .  .  xxxiis.  ac  omnia 
alia  opera,  onera,  consuetudines  et  servitia  inde  prius  debita  et  de  jure  consueta,  et 
pro  herietto,  cum  acciderit,  pro  praedicto  messuagio  et  virgato  terrae  .  .  .  suum 
optimum  animal." 

3  Complete  Copyholder  §  7. 

3  §  9,  "  But  now  copyholders  stand  upon  a  sure  ground,  now  they  weigh  not 
their  Lord's  displeasure,  they  shake  not  at  every  sudden  blast  of  wind,  they  eat,  drink, 
and  sleep  securely ;  onely  having  an  especial  care  of  the  main  chance  (viz.)  to  per- 
form carefully  what  duties  and  services  soever  their  Tenure  doth  exact,  and  Custome 
doth  require :  then  let  Lord  frown,  the  copyholder  cares  not,  knowing  himself  safe 
and  not  within  any  danger.  For  if  the  Lord's  anger  grow  to  expulsion,  the  Law  hath 
provided  several  weapons  of  remedy ;  for  it  is  at  his  election  either  to  sue  a  Subpoena 
or  an  action  of  trespass  against  the  Lord.  Time  hath  dealt  very  favourably  with 
Copyholders  in  divers  respects." 

■'Vol.  ii  205. 

5  P.  and  M.  ii  106. 

«Ibid  n.  2;  Y.BB.  32,  33  Ed.  I.  (R.S.)  474;  11  Hy.  VI.  Mich.  pi.  11;  33  Hy. 
VI.  Mich.  pi.  19. 

■^  As  we  have  seen  (vol.  ii  364)  the  action  of  trespass  did  not  become  general 
till  late  in  the  thirteenth  century.  The  old  view  which  put  the  writ  de  ejectione 
firmse  before  the  Quare  ejecit  is  clearly  impossible,  P.  and  M.  ii  log  n.  i ;  we 
may  observe  that  in  Y.B.  2,  3  Ed.  II.  (S.S.)  86  Herle,  arg.,  thus  states  the  law, 
below  214, 


214  THE  LAND  LAW 

the  lessor  died  leaving  an  infant  heir  or  a  widow,  the  lessee's  rights 
were  inferior  to  those  of  the  guardian  in  chivalry  or  the  dowress/ 
I  But  in  spite  of  the  reasonings  of  the  lawyers,  the  inconvenience 
of  holding  that  the  lessee  for  years  had  merely  a  personal  right 
made  some  change  in  the  law  imperative.  Accordingly  the 
remedies  of  the  lessee  were  gradually  improved.  As  we  have 
seen,  about  1235  William  Raleigh  invented  the  writ  Quare  ejecit 
infra  terminum}  Bracton  seems  to  have  thought  that  it  would 
lie  against  any  one  who  ejected  the  lessee ;  ^  but  a  little  later  it 
is  clear  that  it  had  not  this  extensive  effect.  In  its  final  form 
this  writ  only  applied  to  the  case  where  the  lessor  had  sold  the 
land  to  another  who  had  ejected  the  lessee.  ''  Under  the  old 
law,"  said  Herle  in  1309,  *'  I  should  have  no  recovery  against  any 
one  but  my  lessor,  no  matter  by  v/hom  I  were  ejected ;  and 
because  there  was  hardship  in  the  case  when  the  lessor  had 
nothing,  remedy  is  granted  against  my  ejector  by  the  writ 
'occasione  cujus  venditionis,  etc.'"*  In  1278  the  Statute  of 
Gloucester  protected  the  lessee  from  losing  his  term  in  conse- 
quence of  a  collusive  use  of  a  real  action.  If  the  lessor  procured 
some  third  person  to  sue  him,  and  allowed  judgment  to  go  by 
default,  the  lessee  had  formerly  no  remedy.  The  statute  allowed 
him  to  intervene  to  protect  his  interest.^  As  against  ejectors  in 
general  the  lessee  was  protected,  certainly  from  Edward  I  I.'s  reign 
onwards,  by  the  action  of  trespass,  which  in  the  form  applicable 
to  him  came  to  be  known  as  the  action  of  ejectio  firmcB.^  But 
we  should  note  that  he  could  only  recover  damages  in  such  an 
action,  whereas  by  an  action  on  the  covenant  or  by  the  Quare 
ejecit  he  might  recover  the  land  itself^ 

We  have  seen  that  when  the  legislator  of  the  thirteenth  century 
wanted  to  provide  an  efficacious  remedy  he  often  extended  the 
scope  of  the  assize  of  novel  disseisin.^  The  question  arises, 
Why  was  not  this  course  taken  in  the  case  of  the  lessee  for  years  ? 
As  Maitland  points  out,  we  cannot  explain  this  by  saying  that 

^  P.  and  M.  ii  107 — if  ejected  by  the  guardian  his  rights  revived  when  the  vizard 
came  of  age :  if  ejected  from  a  third  by  the  widov^^  he  held  the  other  two-thirds  for 
a  longer  period  as  compensation. 

2  Vol.  ii  231  ;  for  the  writ  in  its  final  form  see  App.  Ia  {14);  this  writ  and 
that  of  covenant  were  alternative,  Y.B.  30,  31  Ed.  I.  (R.S.)  282. 

3f.  220,  •'  De  consilio  curiae  provisum  est  firmario  contra  quoscunque  dejectores 
per  tale  breve." 

4  Y.B.  2,  3  Ed.  II.  (S.S.)  86— the  writ  is  the  Quare  ejecit,  the  operative  effect 
of  which  had  been  narrowed  by  the  insertion  of  the  words  cited  by  Herle ;  the  law 
is  so  stated  by  Fleta  4.  31.  4;  cp.  Y.B.  6  Ed.  II.  (S.S.)  222-223,  226-227. 

^  6  Edward  I.  c.  11 ;  supplemented  by  21  Henry  VIII.  c.  15 ;  Co.  Litt.  46a. 

6 Y.B.  15  Ed.  II.  Hil.  ff.  458,  458b;  for  later  cases  see  Y.BB.  12  Hy.  IV. 
Mich.  pi.  20 ;  I  Hy.  V.  Pasch.  pi,  3 ;  Fitz.,  Ab.  Ejectione  Firmce  pi.  2  for  a  case  of 
Richard  II. 's  reign ;  32  Hy.  VI.  Hil.  pi.  27  ;  and  cp.  Maitland,  Forms  of  Action  350- 
351 ;  for  the  writ  see  App.  Ia  (15). 

7  Y.B.  33  Hy.  VI.  Mich.  pi.  19.  ^  ^bove  10. 


TERM  OF  YEARS  215 

such  leases  were  rare,  nor  by  saying  that  such  lessees  were  mere 
farmers  or  bailiffs.^  On  the  contrary,  large  sums  of  money  were 
sometimes  invested  in  leases ;  for  a  beneficial  lease  was,  as  we 
have  seen,  one  of  the  modes  by  which  money  could  be  raised  on 
the  security  of  land  and  a  fair  rate  of  interest  secured  for  the 
lender  without  his  incurring  the  guilt  of  usury.^  Moreover,  it  was 
quite  clear,  as  a  result  of  thirteenth-century  legislation,  that  the 
lessee  for  years  had  something  much  more  than  a  mere  personal 
right  as  against  his  lessor.  *•  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  a  usufruct,  nor  that  he 
has  a  servitude  comparable  to  a  right  of  way ;  they  say  boldly 
that  he  holds  a  tenement."^  Thus  Fleta  says,*  '*a  man  should 
not  be  able  to  eject  a  lessee  from  his  farm  any  more  than  any 
other  tenant  from  his  free  tenement.  Hence  if  a  man  should 
eject  a  lessee  from  his  farm  he  must  restore  to  him  his  seisin 
together  with  damages,  because  such  spoliation  differs  not  much 
from  disseisin."  The  lessee,  then,  has  a  real  right ;  but  probably 
this  real  right  was  not  given  the  protection  of  the  real  actions 
because,  if  it  had  been  so  protected,  it  would  have  been  difficult 
to  say  that  the  lessee's  interest  was  not  a  freehold  like  the  interest 
of  the  tenant  for  life.  His  interest  was  not  a  freehold.  It  was 
a  chattel  interest ;  ^  and  if  we  regard  these  leases  as  being  primarily 
investments  of  capital,  we  shall  see  that  there  was  a  very  good 
reason  why  lessees  should  prefer  that  their  interests  should  be 
thus  regarded  rather  as  chattel  than  as  freehold  interests.  Being 
chattels,  they  were  capable  of  being  bequeathed  ;  and,  as  Maitland 
says,  *'  It  is  natural  that  a  man  who  has  put  a  big  sum  of  money 
into  an  investment  should  wish  for  the  power  of  bequeathing  that 
investment.  It  is  an  utterly  different  thing  from  the  landed 
estate  which  one  would  wish  to  keep  in  one's  family."  ^  Thus 
the  interest  of  the  lessee  for  years  was  treated  as  a  chattel  interest 
because  the  lease  of  the  thirteenth  century  was  as  often  an  invest- 
ment of  capital  as  the  letting  of  land  to  a  farmer.  As  Maitland 
has  shown,  it  is  comparable  from  this  point  of  view  to  the 
feudal  incidents  of  wardship  and  marriage,  in  the  purchase  of 
which  large  amounts  of  capital  were  invested.  These  rights,  like 
the  interest  of  the  lessee  for  years,  were  chattel  interests  and 
therefore  bequeathable  like  chattels.'''     But  it  is  clear  that  if  this 

^  P.  and  M.  ii  113.  ''Above  128.  ^  P.  and  M.  ii  113. 

^  "  Non  enim  potuit  aliquis  firmarium  ejicere  de  firma  sua,  magis  quam  tenentem 
aliquem  de  libero  tenemento  suo.  Et  unde  si  quis  firmarium  a  firma  ejecerit 
seisinam  restituet  cum  dampnis,  quia  talis  spoliatio  non  multum  differt  a  disseisin^," 
4.  31.  4  ;  cp.  Pollock  and  Wright,  Possession  48-49. 

5  Y.B.  33-35  Ed.  I.  (R.S.)  164  ;  vol.  ii  354-355-  ^  P.  and  M.  i  ir6. 

Mbid.  115-117;  cp.  Y.B.  6  Ed.  II.  (S.S.)  174,  where  it  is  pointed  out  that  the 
right  to  the  wardship  goes  with  the  land,  but  that  when  the  person  entitled  got 


216  THE  LAND  LAW 

is  the  view  taken  of  the  interest  of  the  lessee  for  years,  the  exist- 
ing remedies  protect  him  well  enough.  It  really  does  not  so 
much  matter  to  him  that  he  has  only  a  personal  action  against 
his  lessor,  and  that  he  can  only  get  damages  by  means  of  the 
writ  of  trespass.  It  is  his  capital  he  wants,  not  the  land ;  and 
for  the  loss  of  his  capital  damages  are  an  adequate  compensation. 
There  was  therefore  no  reason  why  the  real  actions  should  be 
extended  to  the  lessee  for  years ;  and  there  was  some  reason  why 
they  should  not  be  extended.  If  there  had  been  a  substantial  reason 
why  they  should  have  been  extended  to  him  no  doubt  they  would 
have  been  so  extended.  We  have  seen  that  the  tenant  by  elegit 
was  protected  by  the  assize  of  novel  disseisin  though  he  had  but 
a  chattel  interest ;  ^  and  the  reason  for  this  is  plain.  The  fact 
that  a  creditor  has  elected  to  take  the  land  in  execution  is  pretty 
clear  evidence  that  the  debtor  has  not  sufficient  chattels  to  pay 
his  debts,  and  that  therefore  a  personal  action  against  him  would 
be  useless. 

We  have  seen  that  as  late  as  1455  the  established  rule  that  in 
an  action  of  ejectio  firmcB  the  lessee  could  only  recover  damages 
was  restated.^  But  in  1468  and  1482  this  rule  was  denied,  and 
it  was  said  that  the  lessee  for  years  could  recover  by  this  action 
not  only  damages  but  also  the  land  itself;  ^  and  the  law  was 
finally  fixed  in  this  way  in  1499  by  a  decision  of  the  Common 
Pleas  which  was  confirmed  by  the  King's  Bench. ^  The  reasons 
why  this, change  was  made  were  partly  legal  and  partly  economic. 
We  have  seen  that  the  machinery  of  a  term  of  years  had  ceased 
for  technical  legal  reasons  to  be  employed  in  the  creation  of  a 
mortgage.^  Therefore  the  beneficial  lease  for  this  purpose  went 
out  of  use.  We  have  seen  that  the  decay  of  the  labour-service 
system  was  the  cause  of  a  great  extension  in  the  practice  of 
letting  the  land  to  lessees  for  years  for  longer  or  shorter 
terms.^  It  is  quite  clear  that  such  lessees,  if  ejected,  would 
not  have  been  compensated  adequately  if  they  had  only  been 
given  damages.  We  have  seen,  too,  that  the  government  desired 
to  stop  the  depopulation  of  the  country  caused  by  the  conversion 
of  arable  land  into  pasture  for  sheep.^     It  is  obvious  that  a  rule 

seisin  it  was  a  chattel  in  his  hands ;  for  specimens  of  grants  of  these  interests  see  App. 
VI. 

^  Above  131.  2  Above  214  n.  7. 

^Y.BB.  7  Ed.  IV.  Pasch.  pi.  16,  "II  {Fairfax)  disoit  expresse  que  en  Ejectione 
FirmcB  et  Quare  ejecit  infra  terminum,  si  le  terme  ne  soit  passe,  le  plaintif  recovera 
son  terme  et  damages  pur  le  temps  que  I'autre  ad  occupy.  .  .  .  Brian  a  mesme 
I'entent;  "  21  Ed.  IV.  Mich.  pi.  2,  "  En  Quare  ejecit  infra  terminum,  Ejectione  firmce 
et  ejectment  de  gard  home  est  a  recoverer  possession  et  ses  damages  auxi,"  per 
Hussey,  J. 

^F.N.B.  220  H. ;  Reeves,  H.E.L.  iii  178;  Maitland,  Forms  of  Action,  350. 

^  Above  130.  "Above  205.  '^  Above  210, 


THE  FORMS  OF  CONVEYANCE        217 

that  the  ejected  lessee  could  not  recover  the  land  would  have 
facilitated  the  operations  of  the  landlords,  who  were  pursuing 
this  undesirable  policy.  These  were  no  doubt  the  decisive 
reasons  which  brought  about  the  enlargement  of  the  remedy 
which  could  be  obtained  by  the  writ  of  ejectio  firnice. 

If,  in  an  earlier  period,  the  power  of  the  lessee  for  years  to 
bequeath  his  land  by  will  made  his  position  preferable  to  that  of 
the  freeholder,  in  a  later  period  the  convenience  of  the  action  by 
which  he  was  protected  gave  him  an  advantage  almost  equally 
great.  The  writ  of  ejectio  firmcB  and  the  action  of  ejectment  to 
which  it  gave  rise  won  their  greatest  victory  in  the  following 
period  when,  by  a  series  of  legal  fictions,^  they  were  made  to  do  the 
work  of  the  real  actions  so  efficaciously  that  they  gradually  re- 
duced them  to  the  rank  of  antiquarian  curiosities.  We  have  seen 
that  by  that  date  the  writ  and  the  action  had  also  become  avail- 
able to  the  copyholder,^  so  that  through  them  the  common  law 
at  length  acquired  a  uniform  remedy  for  the  protection  of  all 
kinds  of  interests  in  land. 

The  law  relating  to  these  chattel  interests  borrowed  from  the 
law  relating  to  freehold  some  of  the  principles  of  tenure,^  some  of 
the  rules  which  gave  the  landowner  power  to  create  estates  in  the 
land,  and  some  of  the  rules  applicable  to  covenants  running  with 
the  land.*  But  in  the  long  run  it  is  probable  that  it  is  the  law 
relating  to  freehold  which  is  the  debtor  to  the  law  relating  to 
chattels  real.  If  we  look  at  the  capacity  of  the  chattel  real  to  be 
bequeathed,  at  the  remedy  ultimately  devised  for  its  protection, 
and  at  the  machinery  by  which  it  devolved  upon  the  next-of-kin 
or  the  legatee,  we  shall  see  that  it  has  been  an  example,  tardily 
followed,  but  for  all  that  followed,  by  the  law  relating  to  freehold. 
The  interest  of  the  lessee  for  years  is  and  always  has  been  merely 
private  property.  It  is  but  natural  that  the  principles  applicable 
to  his  interest  should  exercise  a  greater  and  greater  influence  upon 
the  interest  of  the  freeholder  as  his  interest  also  comes  to  be  re- 
garded more  and  more  as  simply  a  form  of  private  property. 

§  12.  The  Modes  and  Forms  of  Conveyance 

In  the  preceding  sections  I  have  been  describing  the  theory  of 
the  land  law.  I  have  said  something  of  the  shape  which  it  had 
taken  under  the  influence  of  the  procedural  forms  of  the  common 
law,  working  upon  a  basis  of  feudal  and  customary  rules ;  of  the 

1  Bk.  iv  Pt.  II,  c.  i  §  I.  2  Above  209. 

3  See  Y.B.  5  Hy.  VII.  Hil.  pi.  2  per  Fairfax  as  to  the  tenure  between  lessor  and 
lessee,  and  the  fealty  due ;  because  there  was  a  relation  of  tenure,  the  lessor  had  the 
remedy  of  distraint,  Litt.  §  58. 

■*  Bk,  iv  Pt.  II.  c.  I  §  7. 


218  THE  LAND  LAW 

quality  and  quantity  of  the  interests  which  different  kinds  of 
tenants  can  have  in  the  land ;  of  the  powers  possessed  by  these 
different  kinds  of  tenants.  In  this  section  I  shall  deal  with  the 
history  of  the  modes  in  which  tenants  were  able  to  give  practical 
effect  to  their  powers  of  disposition.  Both  in  the  Public  Records 
and  in  the  cartularies  of  religious  houses  there  are  numerous  docu- 
ments, both  printed  and  unprinted,  which  either  evidence  or 
actually  accomplish  all  the  various  dealings  with  the  land  which 
were  possible  during  this  period.^  These  documents  show  us  the 
actual  everyday  working  of  the  principles  of  the  land  law.  They 
show  us  also  how  its  principles  became  fixed  and  settled  by  their 
application  to  the  concrete  needs  of  individual  landowners.  In 
the  application  of  the  general  principles  of  the  law  to  these  count- 
less concrete  cases  we  see  the  legal  profession  at  work  out  of  court, 
just  as  in  the  Year  Books  we  see  it  at  work  in  court,  settling  the 
knotty  problems  which  changes  in  social  needs  and  restless  human 
energy  continually  set  to  the  general  principles  of  the  law.  And, 
just  as  the  theory  of  the  law  has  been  built  up  out  of  the  solutions 
of  these  problems  by  the  lawyers  in  court,  so  much  of  the  detailed 
working  out  of  the  theory  of  the  land  law  has  been  built  up  by 
these  same  lawyers,  who,  out  of  court,  devised  forms  which  have 
enabled  landowners  to  give  effect  to  their  wishes  in  accordance 
with  the  general  principles  of  the  law.  In  both  cases  the  applica- 
tion of  the  law  to  individual  cases  has  shaped  and  hardened  its 
rules  ;  and  though  no  doubt  the  activities  of  the  conveyancers  have 
always  been  exercised  under  the  control  of  the  courts,  though  the 
courts  have  always  been  the  ultimate  arbiters  as  to  the  validity 
and  the  interpretation  of  the  forms  which  they  employ,^  yet  there 
can  be  no  doubt  that  these  draftsmen  of  conveyances  have,  from 
early  times,  had  a  great  and  an  independent  influence  upon  the 
law.  They  have  made  common  forms ;  and  the  common  forms, 
whether  of  writs  or  of  pleadings  or  of  conveyances,  have  a  habit 
of  acquiring  a  customary  meaning  from  which  the  court  will  not 
readily  depart,  and  of  thus  becoming  a  part  of  the  law  itself.^ 
With  the  growth  of  the  complexity  of  the  law,  and  therefore  of 
the  forms  which  were  devised  to  give  effect  to  it,  there  has  grown 
up  a  respect  for  the  opinion  of  those  who  have  constructed  these 

^  A  very  complete  collection  of  mediaeval  charters  of  all  kinds  is  to  be  found  in 
Madox,  Formulare  Anglicanum ;  they  are  drawn  from  the  Repository  of  the  Aug- 
mentation OfKce,  from  the  Cottonian  Library,  from  the  Collegiate  Church  of  West- 
minster, from  the  Cathedral  Church  of  Canterbury,  from  the  library  of  Corpus  Christi, 
Cambridge,  and  from  the  Pipe  Rolls ;  in  later  days  the  same  motives  which  led  in 
earlier  times  to  enrolment  on  the  Pipe  Rolls  led  to  enrolment  on  the  Close  Rolls, 
below  235  ;  while  for  conveyances  which  were  effected  by  the  machinery  of  the 
court  we  have  the  Feet  of  Fines  ;  for  these  various  rolls  see  vol.  ii  181-186 ;  in  the 
last  century  many  cartularies  have  been  published  in  the  Rolls  Series,  and  in  the  works 
of  many  learned  societies ;  for  some  specimens  of  early  forms  see  App.  III. 

2  Below  252-253.  '^  See  below  6^2  as  to  pleadings. 


THE  FORMS  OF  CONVEYANCE        219 

forms  which  more  nearly  approaches  to  the  respect  paid  in  the 
days  of  the  Republic  to  the  Responsa  Prudentum  than  anything 
else  in  English  law.^  In  this  period,  it  is  true,  we  are  only  at  the 
beginning  of  the  process  which  will  make  the  opinion  and  practice 
of  the  conveyancers  almost  a  source  of  law.  There  were  many 
learned  amateurs  in  the  monasteries  who  drew  conveyances  ac- 
cording to  the  pattern  approved  of  by  the  monastery.^  We  can, 
however,  see  the  beginnings  of  the  process  which  will  eventually 
lead  to  this  result.^  Any  collection  of  precedents  will  show  us  a 
growth  of  uniformity  and  complexity  which  points  to  the  rise  of 
a  class  of  professional  conveyancers. 

Though  we  cannot  in  this  period  ascribe  to  the  practice  of  con- 
veyancers that  authority  which  it  afterwards  attained,  we  can  see 
that  from  another  cause,  the  work  of  the  conveyancer  occupied  a 
more  important  place  in  the  common  law  of  the  Middle  Ages  than 
it  occupies  in  subsequent  periods.  As  I  have  already  pointed  out, 
the  land  law  occupied  a  larger  space  in  this  period  than  any  other 
branch  of  the  law.*  Many  arrangements  took  the  form  of  a 
conveyance  of  an  incorporeal  thing  which  to-day  would  take  the 
form  of  a  simple  contract,  written  or  verbal.^  For  this  reason 
these  conveyancing  precedents  shed  much  light  on  branches  of 
the  law  which  to-day  hardly  come  within  the  scope  of  the  con- 
veyancer's art ;  90  that  a  knowledge  of  the  forms  which  the  con- 
veyancers of  this  period  employed  is  more  necessary  than  in  later 
days  to  a  proper  understanding  of  the  law  as  a  whole. 

In  this  section  I  shall  deal,  firstly,  with  the  history  of  the  forms 
of  conveyance ;  secondly,  with  some  of  the  modes  in  which  land- 
owners were  able  to  deal  with  their  land  by  these  means ;  and 
thirdly,  with  the  light  which  some  of  these  mediaeval  conveyances 
shed  upon  the  development  of  the  law. 

The  History  of  the  Forms  of  Conveyance 

The  bold  simplifications  in  the  land  law  effected  by  royal 
justice  are  very  apparent  if  we  compare  the  law  of  conveyancing 

^  It  may  be  useful  to  note  that  Acts  like  the  Conveyancing  Act  and  the  Settled 
Land  Acts  in  some  of  their  sections  codify  the  practice  of  the  conveyancers,  just  as 
Acts  like  the  Sale  of  Goods  Act  codify  case  law.  In  the  manner  in  which  such 
covenants  as  covenants  for  title,  devised  by  the  conveyancers  and  formerly  expressly 
inserted  in  every  conveyance,  have  come  to  be  implied,  we  may  note  an  historical 
development  closely  paralleled  by  the  development  of  the  contract  Emptio  Venditio 
in  Roman  law,  see  Moyle,  Contract  of  Sale  iii,  112,  192-195. 

2  "  It  is  most  certain  that  the  cloisterers  in  making  their  leases  and  deeds  had 
commonly  a  peculiar  form  thereof  which  they  would  stick  to  so  precisely,  that  rather 
than  deviate  from  their  custom  they  would  mar  the  whole,"  Plowden  at  f.  163. 

2  Note  that  in  13 12- 13 13  the  lawyers  who  practised  before  the  courts  were  eni- 
ployed  to  draw  fines,  see  Y.B.  6  Ed.  II.  (S.S.)  197  note  from  the  record, 

*  Vol.  ii  590.  5  Ibid  355,  356. 


220  THE  LAND  LAW 

in  England  with  that  observed  in  France.  The  French  lawyer 
who  was  dealing  with  conveyancing  in  mediaeval  times  must  make 
many  divisions  and  distinctions.  He  must  consider  the  franc 
alleu^  the  fief,  and  the  censive^  in  town  and  country.  He  must 
put  the  rules  prevailing  in  th^  pays  du  droit  ^crit  in  a  class  apart 
from  the  rules  prevailing  in  th.Q  pays  du  droit  coutumier ;^  and 
when  dealing  with  the  latter  class  he  must  consider  various 
special  customs  and  exceptions.^  He  must  consider  the  influ- 
ence of  Roman  law,  which,  in  different  places  and  with  different 
degrees  of  strength,  was  making  for  the  transfer  of  property  by 
means  of  written  instruments.^  He  must  consider  the  various 
retraits  of  lord  and  heir,^  which,  by  affecting  the  security  of  the 
purchaser,  sometimes  had  an  influence  on  the  form  of  conveyance 
which  it  was  advisable  to  adopt. '^  The  English  lawyer,  from  the 
thirteenth  century  onwards,  was  not  troubled  by  any  question  of 
retrait ;  freedom  of  alienation  was,  as  we  have  seen,  the  rule.^ 
The  growing  uniformity  of  the  rules  of  law  applicable  to  lands  of 
free  tenure  necessarily  caused  a  growing  uniformity  in  the  forms 
of  conveyance.  We  must,  it  is  true,  make  distinctions  between 
land  held  by  free  tenure  on  the  one  side  and  land  held  by  copy- 
hold tenure  and  for  a  term  of  years  on  the  other.  But,  as  we 
have  seen,  many  of  the  rules  and  principles  of  law  applying  to 
land  held  by  free  tenure  came  in  time  to  be  applied  to  the  other 
two  classes ;  ^  and  the  same  tendency  will  be  found  in  the  rules 
of  law  dealing  with  conveyances.  But,  seeing  that  the  land  law 
of  the  Middle  Ages  falls  into  these  three  subdivisions,  we  must 
accept  them  as  the  basis  of  our  treatment  of  the  forms  of  convey- 
ance in  this  period.  The  first  division  will  be  found  to  be  actu- 
ally and  historically  by  far  the  most  important,  both  because  of 
the  great  variety  of  rights  included  under  it,  and  because  it  is 
the  model  which  the  other  two  divisions  tend  to  follow. 

(i)  Freehold  interests  in  lands  held  by  free  tenure. 

In  dealing  with  the  ordinary  forms  of  conveyance  I  shall 
divide  them  into  two  classes,  (i)  those  which  take  effect  simply 
by  the  act  of  the  parties,  and  (ii)  those  which  depend  for  their 
efficacy  upon  the  machinery  of  the  court.     Under  the  first  head 

^  Vol.  ii  75  and  n.  8;  Brissaud,  Droit  Fran9ais  ii  1289-1291. 

2  Ibid  1285-1289.  3  Ibid  1291.  ^  Ibid  1291-1299. 

^  Ibid  1302-1307.  6  Ibid  1333  seqq. 

'  E.g.  the  "  Appropriances  per  bannies  d'apres  la  Coutume  de  Bretagne,"  dat- 
ing from  the  thirteenth  century.  Three  proclamations  on  successive  Sundays  barred 
those  in  Brittany  in  eight  days,  those  absent  in  a  year  and  a  day,  including,  among 
other  things,  "  la  faculty  de  retrait  au  profit  des  parents  ou  du  seigneur,"  Brissaud  ii 
1295-1297. 

8  Above  ^^^  80.  9  Above  212-213,  217. 


THE  FORMS  OF  CONVEYANCE        221 

will  fall  such  conveyances  as  feoffments  with  livery  of  seisin,  re- 
leases, surrenders,  various  deeds  of  grant,  exchanges,  partitions, 
and  confirmations.  Under  the  second  head  will  fall  fines  and  re- 
coveries. 

(i)  Conveyances  which  take  effect  simply  by  the  act  of  the 
parties. 

The  normal  and  regular  mode  of  creating  or  transferring  a 
freehold  interest  in  land  of  free  tenure  is  by  a  feoffment.  *'  Feoff- 
ment is  a  species  of  the  genus  gift."  ^  It  is  a  gift  of  a  freehold 
interest  in  land  accompanied  by  livery  of  seisin.  The  essential 
part  of  the  feoffment  is  the  livery  of  seisin  made  with  the  intention 
of  giving  the  whole  or  some  part  of  the  donor's  interest.  It  was 
long  unnecessary  to  evidence  this  transaction  by  any  writing,  if  it 
was  intended  to  transfer  an  estate  in  possession ;  ^  and,  as  we 
have  seen,  at  first  writing  was  equally  unnecessary,  while  some- 
thing equivalent  to  livery  of  seisin  was  equally  necessary,  in 
the  case  of  incorporeal  things.^  Probably  in  Anglo-Saxon  days 
the  use  of  writing  was  the  exception  rather  than  the  rule.*  After 
the  Norman  Conquest  the  use  of  writing  became  more  frequent ; 
but  the  writings  were  short  and  meagre.  As  Madox  says,  large 
estates  were  conveyed  in  early  days  by  *'very  minute  charters."^ 
Under  these  circumstances  it  was  inevitable  that  in  early  days 
great  importance  should  be  attached  not  only  to  the  livery  of 
seisin,  but  also  to  any  other  ceremonial  observances  which  would 
evidence  the  gift.  With  some  of  these  other  observances — the 
attestation  by  a  court  or  men  of  the  neighbourhood,  the  presence 
.of  a  number  of  witnesses,  preferably  officials  or  important  men, 
fsome  ceremony  before  the  altar  of  a  church — I  shall  deal  later. 
Here  we  are  concerned  with  the  livery  of  seisin  which,  as  we  have 
>een,  came  to  be  regarded  by  the  common  law  as  the  essential 
)rerequisite  to  the  validity  of  a  feoffment.  *'  It  seems  probable," 
lys  Maitland,  "  that  in  this  respect  our  law  represents  or  repro- 
fduces  very  ancient  German  law,  that  in  the  remotest  age  to  which 
we  can  profitably  recur  a  transfer  of  rights  involved  of  necessity 
a  transfer  of  things,  that  a  conveyance  without  livery  of  seisin 
was  impossible  and  inconceivable."  ^ 

In  early  days  the  ceremonies  accompanying  this  livery  of  seisin 
^took  many  different  forms.     The  livery  of  seisin  itself  was  given 

^  P.  and  M.  ii  82,  citing  Britton  i  221. 

2  Bracton,  f.  33b  ;  Litt.  §§  214-217  ;  Co.  Litt.  48b  ;  Madox,  Form,  i,  ii ;  writing 
was  not  required  till  the  Statute  of  Frauds,  29  Charles  II.  c.  3  §  2  ;  cp.  Y.BB.  33-35 

^Ed.  I.  (R.S.)  50 ;  2,  3  Ed.  II.  (S.S.)  168,  169,  170,  171 ;  3  Ed.  II.  (S.S.)  157. 

3  Above  97-98.  ^  Vol.  ii  76-77. 
'  Madox,  Form.  xxvi.     Even  in  Edward  I.'s  reign  feoffments  and  settlements 

^were  made  without  charter,  Y.B.  20,  21  Ed.  I.  (R.S.)  32  ;  vol.  ii  352-353. 
8  P.  and  M.  ii  84. 


222  THE  LAND  LAW 

normally  and  regularly  by  putting  the  donee  into  possession  of 
the  land,  but  the  fact  that  it  had  thus  been  given  was  evidenced 
by  handing  over  a  stick,  a  hasp,  a  ring,  a  cross,  or  a  knife,  which 
was  sometimes  inscribed  or  curved  or  broken.^  In  the  Ramsey 
Cartulary  we  read  of  a  deathbed  gift  made  by  means  of  some  hair 
cut  off  from  the  head  of  the  dying  man  and  deposited  upon  the 
altar.2 

In  addition  to  delivering  possession  the  donor  must  leave  or 
otherwise  abjure  the  land.  There  can  be  no  livery  of  seisin  unless 
the  land  is  left  vacant^  Thus  we  read  in  a  letter  of  attorney  to 
deliver  seisin  that  the  attorney  was  directed  "to  remove  and 
wholly  expel  all  the  tenants  and  other  occupants  of  the  land  with 
their  belongings."*  It  is  for  the  same  reasons  and  under  the 
influence  of  the  same  ideas  that  we  find  in  certain  places  a  ceremony 
of  abjuration  of  the  land  performed  by  the  person  who  is  convey- 
ing it.^  In  early  days,  therefore,  it  is  impossible  to  exaggerate 
the  importance  of  livery  of  seisin  as  evidence  of  title ;  and,  in  later 
days,  the  stress  laid  upon  it  by  the  king's  court  made  it  even  more 
important.  It  is  for  this  reason  that  we  sometimes  find  in  monastic 
cartularies,  even  as  late  as  the  fourteenth  century,  narratives  setting 
forth  with  great  minuteness  the  story  of  the  events  which  accom- 
panied a  gift^ 

It  is  not  always  easy  to  keep  apart  such  distinct  things  as  the 
transaction  itself  and  the  evidence  of  that  transaction.  Thus  we 
find  that  there  was  from  early  times  a  tendency  to  confuse  the 
actual  livery  of  seisin  with  the  symbolical  observances  designed  to 
evidence  it.  The  tendency  to  this  confusion  was  helped  forward 
by  the  growing  practice  of  drawing  up  a  written  charter  to  be 
a  perpetual  memorial  of|  the  transaction.  This  practice  was 
encouraged  by  the  influence  of  Roman  law.  *'To  the  eye  of  the 
barbarians  the  Roman  provincials  seemed  to  be  conveying  land 

^  For  these  ceremonies  see  P.  and  M.  ii  84;  Brissaud  ii  1278-1280;  for  instances 
cp.  Madox  no.  100,  and  Select  Civil  Pleas  (S.S.)  xv. 

'^  Ramsey  Cart,  i  257  (1133-1160),  "  Missis  ad  Rameseiam  per  Walterum  filium 
suum  propriis  crinibus  reddidit  [terram]  ecclesiae.  .  .  .  Qui  Walterus  .  .  .  praefatos 
crines  deferens  et  super  altare  ponens  ...  in  ipso  loco  et  tempore  eandem  terram 
quietam  ex  sua  parte  clamavit." 

3  P.  and  M.  ii  84,  85 ;  cp.  the  Y.B.  cited  vol.  ii  352-353- 

^  Madox  no.  351,  "  Omnes  tenentes  et  alios  occupatores  quoscumque  eorundem 
terrarum  et  tenementorum  cum  suis  pertinenciis,  ab  eisdem  amovendum  et  penitus 
expellendum." 

5 Ibid  472,  "Ego  Radulfus  Grassus  et  ego  Susanna  abjuravimus  praenominatam 
Domum  coram  Burgensibus  prasdicti  Burgi; "  cp.  Eynsham  Cart.  (O.H.S.)  i  no.  147, 
"  Predictus  Helias  et  mater  ejus  Avicia  et  frater  ejus  Walterus  venerunt  in  comitatu 
et  ibi  foris  juraverunt  et  foris  affidaverunt  terram  predictam." 

«  Ramsey  Cart,  i  160-166  (1146-1153)  an  account  of  the  foundation  of  the  abbey 
of  Saltrey ;  cp.  ibid  i  186  (1342)  an  account  of  "  La  Hveraunce  de  la  seisine  de  marreys 
de  Waltone;"  and  i  137,  "Quia  quae  non  scribuntur  citius  a  veritate  et  a  memoria 
labuntur,  testamentum  mutuae  vicissitudinis  inter  Reinaldum  abbatem  Ramesiensem 
et  Hugonem  de  Haliwelle,  scripto  firmare  curavimus." 


THE  FORMS  OF  CONVEYANCE        223 

by  means  of  documents ;  "  \  and  the  Anglo-Saxon  land  book  may, 
as  we  have  seen,  have  operated  as  a  conveyance  of  land.^  Thus 
less  stress  came  to  be  laid  upon  the  actual  livery  of  seisin,  and 
more  stress  upon  the  symbolical  ceremonies  or  the  writing  designed 
to  evidence  this  livery.  Abroad  the  symbolical  ceremonies  or  the 
writing  came  in  some  cases  to  supersede  the  actual  livery  of  seisin. 
The  written  charter  or  the  symbolical  traditio  became  the  convey- 
ance. But  this  was,  as  we  might  expect,  a  gradual  process.^  It 
is  possible  that  the  mere  making  of  the  land  book  did  not,  even  in 
Anglo-Saxon  times,  suffice  to  convey  the  land  without  the  delivery 
of  the  writing.^  In  England,  as  elsewhere,  it  is  probable  that 
there  was  a  combination  of  ideas  new  and  old.  The  delivery  of 
the  writing  was  allowed  to  stand  in  the  place  of  the  delivery  of 
those  rings  or  rods  or  knives  by  means  of  which  seisin  had 
formerly  been  delivered,  or  its  delivery  had  been  evidenced,  and 
English  law  long  retained  traces  of  this  phase. ^  To  this  day  a 
deed  takes  its  effect  from  its  delivery,  and,  as  we  shall  see,  a  fine 
was  to  the  end  '*  levied."  This  may  have  recalled  the  time  when 
the  document  lying  on  the  ground  between  the  parties  was  lifted 
up  by  one  of  them.^ 

It  is  easy  to  see  that  when  the  law  has  reached  this  point  it  is 
but  a  short  step  to  take  to  say  that  the  document  conveys  the 
land.  It  is  true  that  Justinian's  Code  expressly  stated  that 
''  traditionibus  et  usucapionibus  dominia  rerum  non  nudis  pactis 
transferuntur ; "  ^  but  it  was  admitted  in  the  Institutes  that  "  inter- 
dum  etiam  sine  traditione  nuda  voluntas  domini  sufficit  ad  rem 
transferendam ; "  and  the  school  of  the  glossators  made  the  most 
of  these  exceptional  cases.  They  allowed  that  the  delivery  of  the 
document  containing  words  to  the  effect  that  there  had  been  a 
traditio  could  transfer  possession.  Azo  declared  broadly  that 
"  traditione  instrumentorum  acquiritur  dominium  vel  possessio."  ^ 

^  P.  and  M.  ii  igo. 

2  Vol.  ii  77 ;  and  cp.  Brissaud  ii  1284. 

5  Ibid  1281-1284 — perhaps  the  symbolical  traditio  was  at  first  allowed  when 
the  ceremonies  were  performed  before  a  court  of  law,  and  afterwards  without  the 
intervention  of  the  court ;  later  the  symbolical  traditio  became  the  essential  part  of 
the  transaction. 

4  P.  and  M.  ii  86. 

5Y.B.  2,  3  Ed.  II.  (S.S.)  168  Bereford,  C.J.,  says,  "Under  old  law  it  is  the 
practice  to  enfeoff  a  man  without  charter  by  horn  or  spur  or  rod." 

^  Brissaud  ii  1284,  "  La  remise  de  la  carta  devint  pour  eux  le  symbole  de  I'aliena- 
tion ;  ils  virent  une  tradition  per  cartam  la  oil  il  n'y  avait  pour  les  Romains  qu'une 
traditio  cartce.  La  fusion  de  la  pratique  romaine  et  du  droit  germanique  s'opdra  si 
bien  qu'on  rencontre  des  formules  d'apres  lesquelles  sur  la  carta  ddpos^e  a  terre  se 
placent  la  motte  de  terre  et  le  rameau  d'arbre ;  le  tout  est  lev6  de  terre  et  remis  k 
I'acqu^reur ;  "  but  it  is  not  quite  certain  whether  the  "levying"  of  a  fine  refers  to 
the  lifting  of  it  from  the  ground,  or  to  the  fact  that  the  fine  is  levied  or  transacted 
between  the  parties,  P.  and  M.  ii  86,  97. 

■^  Code  2.  3.  20. 

8  Brissaud  ii  1302,  1303,  and  references  there  cited. 


224  THE  LAND  LAW 

But  in  England  this  step  was  not  taken.  Rather  there  was  a 
reversion  to  the  old  ideas  which  required  an  actual  livery  of  vacant 
seisin.  This  fact  is  illustrated  by  a  very  clear  statement  in  a  case 
which  was  before  the  courts  in  1537.  "A  man  was  seised  of  a 
messuage,  and  of  a  close  adjoining  to  the  messuage,  and  made  a 
lease  of  the  messuage  for  term  of  years  or  life ;  and  afterwards 
made  a  feoffment  of  the  messuage  and  close,  and  delivered  seisin 
in  the  messuage  (the  termor  being  at  market,  and  his  wife  and 
children  being  in  the  house)  in  the  name  of  all :  now  it  is  to  be 
considered  whether  the  house  passed  or  not.  And  it  seems  not, 
inasmuch  as  the  continuance  of  the  wife  and  children  of  the  lessee 
saved  the  right  and  possession  of  the  lessee."  ^  We  must,  as  we 
have  seen,^  ascribe  this  rigid  rule  laid  down  by  the  royal  courts 
mainly  to  the  importance  of  the  publicity  of  an  actual  livery  in  a 
system  which  worked  with  the  jury.  Perhaps  also  it  was  partly 
due  to  the  early  date  at  which  Roman  law  ceased  to  exercise  an 
appreciable  influence  on  English  law,^  and  partly  to  the  incapacity 
of  the  primitive  mind  to  conceive  of  a  transfer  of  things  without 
actual  traditio.  Its  long  continuance  in  the  law  we  must  ascribe 
partly  to  the  fact  that  it  helped  to  promote  publicity  of  conveyance, 
and  thus  to  prevent  the  frauds  which  secrecy  of  conveyance  renders 
possible ;  *  and  partly  to  the  fact  that  the  procedure  in  the  real 
actions  necessitated  the  presence  of  a  tenant  who  was  seised.^  As 
a  result  of  this  rule  the  principle  that  no  freehold  can  be  limited 
in  futuro  comes  to  be  perhaps  the  most  fundamental  rule  for  the 
limitation  of  estates  in  English  law ;  and  the  principle  was  applied 
not  only  to  estates  in  possession,^  but  also  to  estates  in  remainder 
and  reversion/  With  some  of  the  important  consequences  which 
in  later  law  flowed  from  this  principle  I  shall  deal  in  a  later 
volume.  Here  we  need  only  note  that  we  can  see  its  effects  upon 
the  forms  employed  by  the  conveyancers.  In  the  later  written 
charters  we  often  get  statements  not  only  that  the  gift  has  been 
made,  but  also  of  the  steps  taken  to  deliver  the  seisin.^ 

Thus  the  common  law  revived  and  perpetuated  a  set  of  legal 

^Dyer  i8b;  cp.  Bettisworth's  Case  (1580)  2  Co.  Rep.  at  ff.  31b,  32a. 

2  Above  95.  3  Vol.  ii  287. 

**  Cp.  Brissaud  ii  1309. 

^  Willion  V.  Berkley  (1561)  Plowden  at  p.  229  per  Brown,  J. ;  cp.  Challis,  Real 
Property  (3rd  ed.)  loo-ioi. 

^  Throckmerton  v.  Tracy  (1556)  Plowden  at  p.  156 ;  Buckler's  Case  (1597)  2  Co. 
Rep.  at  f.  55a. 

■^  Wrotesley  v.  Adams  (1558)  Plowden  at  p.  197. 

8  Madox,  Form.no.  100;  Ramsey  Cart,  i  137,  139;  and  cp.  Brissaud  ii  1283, 
"  L'entr^e  en  possession  est  ddcrite,  parfois  avec  un  grand  luxe  de  details  dans  les 
documents  du  moyen  ^ge  jusqu'a  une  ^poque  r^cente,"  with  P.  and  M.  ii  89,  "  One 
could  not  be  too  careful;  one  could  not  have  too  many  ceremonies;  "  cp.  Bl.  Comm. 
ii  3i5»  316,  for  a  modern  description,  and  for  the  difference  between  livery  in  deed  and 
livery  in  law. 


THE  FORMS  OF  CONVEYANCE        225 

ideas  more  ancient  than  feudalism.^  On  the  other  hand,  we  have 
seen  that  the  common  law  had,  at  an  early  date,  begun  to  elimin- 
ate the  elements  of  public  law  contained  in  feudalism,  and  that 
it  had  begun  to  regard  land-holding  by  a  free  tenure  as  property 
law  simply.  Thus  it  happens  that  it  is  only  occasionally  and  in 
the  century  following  the  Conquest  that  we  see  anything  of  forms 
which  illustrate  the  lord's  rights  in  the  land  by  requiring  his 
participation  in  a  conveyance,^  such  as  we  see  in  France  all 
through  this  period,^  and  such  as  we  see  in  England  in  the  case 
of  unfree  tenure.* 

The  livery  of  seisin,  then,  is  the  essential  part  of  the  convey- 
ance. But  gradually  the  use  of  writing  to  show  the  intent  with 
which  seisin  has  been  delivered  becomes  more  common ;  and 
Bracton  pointed  out  that  it  was  convenient  for  the  purpose  of 
perpetuating  testimony.^  As  it  becomes  more  common  it  becomes 
possible  to  indicate  precisely  the  varying  kinds  of  intent  with 
which  seisin  is  delivered ;  and,  if  we  look  at  the  large  powers 
which  landowners  have  of  making  what  dispositions  they  please 
of  their  property,*^  we  shall  see  that  these  written  charters  which 
evidence  the  livery  of  seisin  are  in  practice  absolutely  necessary, 
both  to  show  the  intent  with  which  seisin  was  delivered,  and  to 
prove  that  intent  in  case  of  litigation."  With  the  history  of  the 
forms  which  they  take  we  begin  the  history  of  the  art  of  con- 
veyancing. 

We  have  seen  that  the  Anglo-Saxon  land  book — the  earliest 
written  document  which  either  transferred  or  evidenced  the  transfer 
of  land — was  of  ecclesiastical  origin ;  but  that  the  formulae  of 
these  land  books  tended  to  become  stereotyped,  because,  under 
the  later  Anglo-Saxon  kings,  there  grew  up  a  secretarial  bureau 

1  P.  and  M.  ii  88,  89. 

2  Madox,  Form.  no.  508 — a  grant  by  Henry  II.  of  land  which  had  been  sur- 
rendered to  him  for  that  purpose  ;  cp.  Ramsey  Cart,  i  no.  182  for  a  similar  grant  in 
the  same  reign. 

3  Brissaud  ii  1285-1289.  ^  Below  247. 

'  "  Et  fiunt  aliquando  donationes  in  scriptis,  sicut  in  chartis,  ad  perpetuam 
memoriam,  propter  brevem  hominum  vitam,  et  ut  facilius  probari  possit  donatio," 
f.  33b  ;  a  good  account  of  the  manner  in  which  the  written  charter  and  the  cere- 
mony of  livery  of  seisin  was  combined  is  contained  in  West,  Symboleography  (ed. 
1615)  §  251,  "  the  usual  manner  of  delivery  of  seisin  of  houses,  lands,  tenements, 
is,  that  the  feoffor  and  feoffee  if  they  be  present,  or  in  their  absence  their  procurators 
or  atturnies  .  .  .  doe  come  to  the  house  or  place  where  seisin  is  to  be  delivered  : 
And  these  in  the  presence  of  sundry  good  witnesses  openly  read  or  cause  to  be 
read,  the  deed  of  feoffment  ...  or  to  declare  the  verie  effect  thereof  before  them  in 
English.  Which  being  so  done  the  feoffor  or  his  Atturney  must  take  a  clod  of 
earth  or  a  bough  or  a  twig  of  a  tree  thereupon  growing,  or  the  ring  or  haspe  of  the 
door  of  the  house,  and  deliver  the  same  with  the  said  deed  unto  the  feoffee  or  his 
Atturney  saying  :  I  deliver  these  unto  you  in  the  name  of  possession  and  seisin  of  all 
the  lands  and  tenements  contained  in  this  deed,  to  have  and  to  hold  according  to  the- 
form  and  effect  of  the  same  deed." 

6  Above  102-105.  7  Y.B.  4  Ed.  II.  (S.S.)  160,  187. 

VOL.  in.  — 15 


226  THE  LAND  LAW 

which  corresponded  to  the  Chancery  of  the  Anglo-Norman  kings. ^ 
We  have  seen,  too,  that  in  the  Anglo-Saxon  period  a  new  form 
of  written  document  was  being  developed.  This  was  the  royal 
writ,  which  was  used  to  give  many  different  kinds  of  orders.  It 
might,  for  instance,  be  used  to  order  that  a  person  should  be  put 
into  the  possession  of  property,  and,  as  so  used,  it  could  obviously 
be  regarded  as  a  form  of  conveyance.^  Under  the  strong  Norman 
and  Angevin  kings  this  writ  form  became  the  general  form  for 
the  issue  of  royal  commands.  Therefore  it  developed  in  many 
different  directions  as  the  business  of  the  state  expanded ;  and  it 
became  specialized  with  the  growing  specialization  of  different 
departments  of  the  central  government.  It  becomes,  as  we  have 
seen,  the  parent  of  charters,  letters  patent,  letters  close,  and 
ordinary  judicial  writs ^ — a  fact  which  is  accounted  for  by  ''its 
great  adaptability  to  all  purposes."  ^  Short  business-like  forms 
appealed  to  the  business-like  Norman  and  Angevin  kings.  They 
had  no  use  for  the  pompous  and  meaningless  rhetoric  which 
characterized  many  of  the  Anglo-Saxon  land  books.  After  the 
Norman  Conquest,  therefore,  this  new  style  of  writ  charter  super- 
seded the  old  land  book ;  ^  and  the  great  landowners  soon 
followed  the  royal  example  when  they  wished  to  deal  with  their 
land.^  But  naturally  there  was  a  period  of  transition.  The 
older  ecclesiastical  precedents  were  not  lost  sight  of — especially 
in  the  case  of  gifts  to  religious  houses.  Side  by  side  with  the 
new  documents,  drawn  up  in  the  style  of  a  writ,  we  have  docu- 
ments in  which  the  grantor  swears  to  abide  by  the  gift,'^  in  which 
the  donor  is  made  to  offer  some  symbol  of  his  gift  upon  the 
altar, ^  in  which  ecclesiastical  penalties  are  threatened  against 
those  who  attempt  anything  against  it,*  in  which  elaborate  an- 
cestral curses  are  invoked  against  heirs  who  presume  to  dispute 
it.i« 

It  is  from  these  two  sources  that  the  ordinary  deed  evidencing 
a  feoffment  with  livery  of  seisin  springs.  In  early  days  these 
deeds  are  brief,  irregular,  and  untechnical  in  form.  It  is  only 
by  degrees  that  the  settlement  of  the  principles  of  the  land  law, 
and  the  growth  of  conveyancing  as  a  distinct  branch  of  the  work 

1  Vol.  ii  77.  2  Ibid. 

3  E.H.R.  xxvii  5  ;  vol.  ii  77.  ^  E.H.R.  xxvii  5. 

5  For  specimens  see  Madox,  Form.  nos.  62,  63,  64,  65,  285,  492,  504,  505; 
Eynsham  Cart.  (O.H.S.)  i  no.  27;  Vinogradoff,  English  Society  220,  221,  225. 

•5  Madox,  Form.  nos.  75,  288,  289,  290,  291,  493. 

■^Ibid  nos.  293,  295;  Eynsham  Cart.  (O.H.S.)  i  no.  61,  '♦  verbo  veritatis  inter- 
posito;"  cp.  ibid  no.  147,  "juraverunt  quod  nunquam  inde  clamorem  facient ;  " 
Rievaulx  Cart.  (Surt.  Soc.)  p.  76. 

^  Ramsey  Cart,  i  133,  "  Et  ipse  Andreas  dedit  in  capitulo  duas  terras  Deo  et 
Sancto  Benedicto  offerens  super  altare  cum  cultello  suo  ;  "  Madox,  Form.  no.  399. 

^  App.  III.  (4).  ^0  Madox,  Form.  nos.  397,  421. 


THE  FORMS  OF  CONVEYANCE        227 

of  the  legal  profession,  produces  a  settlement  both  of  their 
various  parts  and  of  the  wording  of  their  various  clauses.  When 
they  have  attained  this  form  they  come  to  be  used  for  many 
purposes  besides  those  of  creating  or  transferring  an  estate  in  the 
land.  I  shall,  in  the  first  place,  say  something  of  the  various 
parts  of  the  ordinary  deed  of  feoffment,  and,  in  the  second  place, 
of  the  various  modes  of  conveyance  which  could  be  either  effected 
or  evidenced  by  such  a  deed. 

In  modern  times  we  divide  deeds  into  deeds  poll  and  indentures. 
The  deed  poll  is  a  deed  to  which  there  is  only  one  party.  The 
indenture  is  a  deed  to  which  two  or  more  persons  are  parties. 
The  latter's  name  is  due  to  the  old  precautions  taken  against 
fraud.  If  several  persons  were  parties  to  a  deed  as  many  copies 
of  it  were  made  as  there  were  parties  on  one  sheet  of  parchment, 
and  the  parchment  was  then  cut  into  parts  in  an  indented  fashion 
across  some  word  such  as  "  Chirograph."  It  was  thus  very 
difficult  to  substitute  a  forged  deed  for  the  real  one  without  risk 
of  detection.  Such  precautions  were  not  considered  necessary  in 
the  case  of  a  deed  to  which  there  was  only  one  party;  it  therefore 
had  a  ** polled"  or  smooth  top.^ 

The  deed  poll  of  the  present  day  begins  with  the  words 
''  Know  all  men  by  these  Presents."  This  form  originates  in 
the  writ  style,  which  as  we  have  seen  was  frequently  adopted 
after  the  Conquest.  ^  Deeds  were  generally  addressed  to  certain 
persons  or  to  certain  classes  of  persons  in  very  various  styles,  e.g. 
we  find  deeds  addressed  to  a  particular  sheriff  or  justice,  or  to  all 
men  French  or  English,  or  to  all  sons  of  Holy  Mother  Church.^ 
This  mode  of  beginning  deeds  seems  originally  to  have  been 
common  to  all.  But  certainly  as  early  as  Edward  III.'s  reign 
it  was  beginning  to  be  dropped  in  the  case  of  the  indenture  in 
favour  of  the  modern  form — '*This  indenture  made  between  A 
and  B." ' 

From  the  earliest  time  we  find  recitals  setting  forth  the  oc- 
casion of  the  gift.  The  Anglo-Saxon  books,  especially  in  the  case 
of  gifts  to  religious  houses,  piously  reflect  upon  the  virtue  of  giving 

^  Litt.  §§  370-372 ;  Bl.  Comm.  ii  295,  296 ;  Madox,  Form,  xxviii,  xxix — there 
are  instances  of  indenting  in  Henry  II.  and  Richard  I.'s  reigns,  "  Nevertheless,"  says 
Madox,  "  I  do  not  perceive  that  indenting  of  the  Chirograph  became  a  general 
practice  before  the  reign  of  King  Henry  the  Third." 

2  Above  226;  App.III.  (6). 

^  Madox,  Form  xxxii,  xxxiii  and  instances  there  cited ;  **  In  general  it  seems  the 
forms  of  compellations  were  such  as  suited  to  the  condition  of  the  lords  and  donours 
that  used  them,  to  the  countrey  where  their  estates  or  the  estates  of  their  donees  lay, 
and  to  the  relation  there  was  between  them  and  their  officers  and  vassals." 

*Ibid  no.  561;  cp.  no.  448 — a  deed  of  13 16 — which  begins,  "Hoc  scriptum 
Cyrograffatum  inter,  etc.  .  .  .  testatur;"  Litt.  §§371,  372  gives  both  styles;  App. 
III.  (5). 


228  THE  LAND  LAW 

to  religious  purposes.^  Gradually  these  vague  recitals  give  place 
to  more  business-like  statements  setting  forth  the  occasions  of  and 
the  reasons  for  the  gift.^  These  recitals  are  followed  by  the 
names  of  the  grantor  and  the  grantee,  the  description  of  the  thing 
granted,  and  sometimes  the  consideration  for  the  grant. ^  In  the 
earlier  deeds  we  find,  in  addition  to  the  name  of  the  grantor,  the 
consents  of  his  relatives^  or  his  lord.^  The  description  of  the 
thing  granted  is  often  lengthy,  when  individual  acres  in  the 
common  fields  are  described  at  length,^  or  when  it  is  followed  by 
a  long  list  of  general  words  describing  rights  and  privileges  an- 
nexed to  the  thing  granted.'''  Sometimes  the  property  is  simply 
described  by  reference  to  the  persons  lately  occupying  it.^ 

Then  follow  the  habendum  and  tenendum.  In  later  deeds  the 
habendum  describes  in  stereotyped  form  the  estate  or  estates 
granted.  In  earlier  deeds,  and  before  the  list  of  possible  estates 
had  been  finally  ascertained,  various  and  different  forms  were 
employed.^  In  particular  many  words  were  sometimes  used 
when  it  was  desired  to  give  to  the  donee  the  fullest  powers  over 
the  land.^^  With  the  growing  fixity  of  the  estates  known  to  the 
law,  and  with  the  growth  of  the  technical  words  which  define 
them,  this  clause  necessarily  shrinks  in  size.  The  tenendum  was 
used  before  the  statute  of  Quia  Emptores  to  indicate  the  lord  of 
whom  the  land  was  to  be  held,^^  and  the  tenure  by  which  it 
was  to  be  held.^^  After  the  statute  it  was  useful  only  for 
the  latter  of  these  two  purposes.  Following  on  these  two 
clauses  was  the  reddendum — i.e.  the  clause  which  indicated  the 
services  to  be  rendered  to  the  grantor  or  the  lord  of  the  fee. 
This  clause  was  necessarily  of  the  most  varied  character,  as  the 
services  might  be  either  of  the  most  nominal  character,  such  as 
the  gift  of  a  rose,^^  or  necessitate  elaborate  stipulations  for  periodi- 

1  See  Eynsham  Cart,  i  19-30  for  the  foundation  charter  of  Ethelred  ;  as  we  have 
seen  (vol.  ii  6g)  whatever  the  gift  there  is  usually  a  small  preamble  of  a  theo- 
logical character,  cp.  Madox,  Form.  no.  283. 

2  See  e.g.  Madox  Form.  no.  292.  ^See  e.g.  ibid  no.  342. 

•*Ibid  nos.  87-90;  Ramsey  Cart,  i  nos.  78,  92;  Rievaulx  Cart.  p.  51;  Eynsham 
Cart,  i  nos.  64-69  ;  70-77  ;  78-83 ;  109 ;  105. 

s  Madox,  Form.  nos.  71,  73,  74,  77,  83,  98,  140 ;  Ramsey  Cart,  i  nos.  78,  92  ; 
Eynsham  Cart,  i  nos.  86,  88, 

^5  Rievaulx  Cart.  207,  208  ;  Eynsham  Cart,  i  nos.  150,  205. 

■^  See  e.g.  Madox,  Form.  nos.  352,  295,  296 ;  Ramsey  Cart,  i  no.  96 ;  ii  no.  460. 

8  Madox,  Form.  Feoffments  in  Fee  passim. 

^  Ibid  V  for  various  instances. 

i°For  a  good  instance  see  Eynsham  Cart,  i  no.  263  (1240-1250),  •' Habendas  et 
tenendas  libere  et  quiete  et  honorifice  et  pacificein  foedo  et  hereditate  sibi  et  heredi- 
bus  suis  vel  suis  assignatis  et  eorum  heredibus  vel  cuicunque  vel  quando-cunque  dare 
vendere  legare  vel  assignare  voluerint  in  perpetuum." 

1^  Madox,  Form.  nos.  306  and  335,  and  many  other  instances. 

12  Ibid  no.  291  (knight  service) ;  no.  318  (frankalmoin). 

13  Ibid  nos.  245,  247,  233  ;  cp.  no.  313,  "  reddendo  quasdem  cyrothecas ;  "  no.  305, 
"  unam  libram  cymini  vel  duos  denarios." 


THE  FORMS  OF  CONVEYANCE        229 

cal  duties  or  payments.^  The  reddendum  might  be  followed  by 
conditions  or  covenants  of  an  equally  varied  character.  It  was 
by  means  of  such  conditions  that  such  a  feoffment  came  to  be 
available  as  a  mortgage.^  In  earlier  times,  when  the  powers 
which  landowners  possessed  to  impose  their  will  upon  the  grants 
which  they  made  were  large,  we  find  very  various  covenants. 
A  very  usual  covenant  in  the  thirteenth  century  was  a  covenant 
wholly  or  partially  restricting  alienation.^  As  we  have  seen, 
there  is  an  instance  in  Henry  IV.'s  reign  in  which  it  was  at- 
tempted in  this  way  to  prevent  a  donee  doing  anything  to  impede 
the  proper  descent  of  an  estate  tail.*  But  it  is,  of  course,  to 
demises  for  life  or  years  rather  than  to  feoffments  in  fee  that  we 
must  look  for  the  most  elaborate  of  these  covenants.  We  find, 
for  instance,  covenants  relating  to  the  upkeep  of  the  property  and 
to  the  mode  of  cultivation  of  the  land,^  to  compensation  for  im- 
provements,^ to  the  mode  in  which  damage  by  fire  shall  be  made 
good,^  to  the  doing  of  services  such  as  suit  of  court. ^  Some- 
times the  lessee  binds  himself  to  reside  upon  the  property,  to  do 
suit  of  court,  and  to  grind  corn  for  the  lessor ;  ^  sometimes  to 
perform  the  personal  or  professional  duties  in  return  for  which 
the  grant  has  been  made.^*^ 

Following  on  these  clauses  comes  the  important  clause  of 
warranty.  We  find  this  clause  soon  after  the  Norman  Conquest. 
In  early  conveyances,  in  the  older  writ  form,  it  appears  in  the 
form  of  a  prohibition  against  disturbing  the  gift.^^  It  is  only 
gradually  that  it  assumes  the  shape  of  an  actual  warranty. ^^  We 
may  perhaps  regard  its  form  as  derived — like  the  form  of  the 
deed    itself — partly  from    these   prohibitions  against   disturbing 

1  Eynsham  Cart,  i  no.  409  (1268-1281). 

2  Above  129-130. 

■"*  Madox,  Form.  nos.  327,  329,  470 ;  Ramsey  Cart,  ii  nos.  364,  398 ;  Eynsham 
Cart,  i  nos.  197,  450. 

^  Above  118-119. 

^  Madox,  Form.  nos.  225,  226,  235,  236,  244. 

^  Ibid  no.  224.  "^  Ibid  no.  202. 

^  Ibid  no.  223  ;  cp.  no.  682.  ^  Ibid  no.  212. 

^^  Ibid  no  243 — a  lease  for  nineteen  years,  in  consideration  that  the  lessee  acts  as 
the  attorney  of  the  lessor  in  the  Exchequer ;  for  this  mode  of  remunerating  the  legal 
profession  see  vol.  ii  491  ;  cp.  ibid  no.  216  ;  Rievaulx  Cart.  323,  324. 

^^  Madox,  Form.  nos.  285,  290. 

^^  Ibid  no.  285,  **  Et  defendo  ne  ahquis  eis  injuriam  inde  faciat,  super  foris- 
facturam  meam,  magis  quam  faceret  si  Ego  illud  manerium  in  mea  dominica  manu 
tenerem" — charter  of  William  II.  to  Battle  Abbey;  ibid  no.  293,  "  Hanc  autem 
venditionem  feci  ego  et  confirmavi  in  perpetuum  esse  tenendam ;  jurando  super 
textum  et  altare  cum  omnibus  filiis  meis  " — charter  of  the  time  of  Henry  II. ;  ibid, 
no.  295,  "  Et  banc  predictam  terram  juravi  et  fidem  meam  donavi  illi  guarantizare 
contra  omnes  homines ;  "  and  cp.  Ramsey  Cart,  i  no.  98,  "  Et  ego  eis  warantizabo 
in  Deo  istam  predictam  terram  contra  omnes  homines.  Quare  volo  et  firmiter  pre- 
cipio,  ut  locus  ille,  et  terra  ilia,  sint  quieti  et  liberi  ...  a  me  et  heredibus  meis  post 
me  futuris." 


280  THE  LAND  LAW 

the  gift,  partly  from  the  ecclesiastical  censures  and  curses  which 
threatened  the  disturbers  of  gifts  made  by  book.^ 

It  is  probable,  as  we  have  seen,  that  the  rules  as  to  warranty 
which  we  meet  in  Anglo-Saxon  times  in  the  case  of  the  sale  of 
movables,  were  applied  by  the  judges  of  the  king's  court  to  the 
conveyance  of  land.^  Perhaps  the  gift  of  the  lord  to  his  tenant, 
certainly  the  ceremony  of  homage,  impliedly  bound  the  lord  to 
warrant  the  gift.^  But  notwithstanding  this  implied  warranty 
these  clauses  of  express  warranty  came  into  use  both  in  order  to 
ensure  freedom  of  alienation  by  guarding  against  the  claims  of 
lords  or  heirs, ^  and  in  consequence  of  the  provisions  of  the 
statutes  De  Bigamis  and  Quia  Emptores.^  The  extent  of  the 
protection  afforded  by  these  clauses  of  warranty,  and  the  mode 
in  which  they  were  expressed,  is  at  first  very  varied.  As  a 
general  rule  they  are  expressed  to  be  against  all  men/  but 
sometimes  they  are  only  expressed  to  be  against  a  particular 
claim/  In  earlier  days  they  are  often  fortified  by  the  oath  of 
the  person  warranting,^  and  amplified  by  a  promise  to  grant  lands 
in  exchange  if  the  warrantor  is  unable  to  warrant  the  land  given. ^ 
These  two  clauses  gradually  disappear.  The  oath — perhaps  a 
survival  of  the  old  ecclesiastical  book — became  valueless  with  the 
exclusion  of  the  jurisdiction  of  the  ecclesiastical  courts  in  all 
cases  which  concerned  land.  The  obligation  to  give  land  in 
exchange  if  the  duty  of  warranty  was  not  fulfilled  came  to  be 
implied  by  the  law.  We  have  seen  that  in  the  course  of  the 
sixteenth  and  seventeenth  centuries  the  modern  covenants  for 
title  took  the  place  of  these  clauses  of  warranty.  ^*^ 

The  remaining  parts  of  the  deed  are  concerned  with  the  date 
and  the  ceremonies  attending  its  execution.  Early  charters  are 
often  not  dated ;  and  for  this  Coke  found  a  technical  reason  more 
ingenious  than  historical. ^^  Those  which  are  dated  are  dated  in 
a  variety  of  different  ways — in  earlier  days  by  the  Indiction,  in 

^  Vol.  ii  69.  2  Ibid  76,  82  ;  above  159. 

3  Above  160 ;  and  cp.  6,  7  Ed.  II.  (S.S.)  119-122. 

*  Above  105-106.  ^  Above  160-161. 

^  Madox,  Form,  vi,  vii. 

'  Ibid  no.  389,  "  Et  prasterea  iidem  N  et  M  concesserunt  pro  se  et  heredibus 
ipsius  M  quod  ipsi  Warrantizabunt  praedicto  J  et  heredibus  suis  praedicta  tenementa 
.  .  .  contra  Georgium  Abbatem  Westmonasterii  et  successores  suos  imperpetuum  ;  " 
for  later  cases  turning  on  the  interpretation  of  different  clauses  of  warranty  see 
Executors  of  Grenelife  v.  W.  (1539)  Dyer  at  f.  42b ;  Lincoln  College's  Case  {1595) 
3  Co.  Rep.  at  f.  63a ;  Edward  Seymor's  Case  (1613)  10  Co.  Rep.  at  ff.  96b,  97a. 

8  Above  229  n.  12.  ^  Madox,  Form.  vii.  ^^  Above  163. 

^^ "  The  reason  thereof  was  for  that  the  limitation  of  prescription  or  time  of 
memory  did  often  in  process  of  time  change;  and  the  law  was  then  holden  that  a 
deed  bearing  date  before  the  limited  time  of  prescription  was  not  pleadable;  and 
therefore  they  made  their  deeds  without  date,  to  the  end  they  might  allege  them 
within  the  time  of  prescription,"  Co.  Litt.  6a;  but  as  Madox  says  (Form,  xxx), 
•'  whether  that  were  the  true  reason  may  be  justly  doubted." 


THE  FORMS  OF  CONVEYANCE        281 

later  times  by  the  regnal  year,  by  reference  to  a  church  festival, 
a  remarkable  event,  or  by  the  year  of  our  lord.^  At  the  end  of 
this  period  deeds  are  always  dated  either  at  the  beginning  or  at 
the  end.  The  other  ceremonies  attending  the  execution  of  a 
deed  in  modern  times  are  sealing,  the  delivery,  and  the  attesta- 
tion of  witnesses.  Signature,  though  usual,  is  not  necessary  for 
validity,  unless  required  by  statute.'^  With  the  significance  of 
the  delivery  of  the  deed  I  have  already  dealt,^  The  custom  of 
sealing  seems  to  have  been  introduced  into  England  from  Nor- 
mandy by  Edward  the  Confessor ;  but  for  some  time  after  the 
Conquest  the  Anglo-Saxon  custom  of  signing  with  crosses  was 
retained.*  Gradually  the  seal  supersedes  the  cross  and  becomes, 
as  we  have  seen,  essential  to  the  validity  of  the  deed.  **  If  a 
man  had  not  his  own  seal  in  readiness,  he  would  sometimes 
cause  the  seal  of  another  to  be  affixt :  or  if  his  own  were  not  well 
known,  or  for  better  security  and  confirmation,  he  would  some- 
times use  both  his  own  seal  and  the  seal  of  some  other  that  was 
better  known  than  his.  Sometimes  one  seal  was  sett  for  two 
persons.  And  sometimes  the  witnesses  have  sett  their  seals."  ^ 
The  attestation  by  witnesses  was  in  practice  perhaps  the  most 
important  part  of  the  execution  of  the  deed  in  early  days.  We 
have  seen  that  the  law  made  much  use  of  such  pre-appointed 
witnesses ;  and  that  in  questions  which  turned  upon  the  validity 
of  a  deed  the  witnesses  would  sometimes  be  joined  with  the  jury.^ 
Hence  the  large  number  of  witnesses  which  we  sometimes  find, 
and  the  care  taken  to  get  as  witnesses  either  persons  of  the 
neighbourhood,  or  officials,  or  fellow-tenants,  and  sometimes  even 
the  king  himself.''  We  can  see  a  survival  of  the  Anglo-Saxon 
land  book  in  the  practice  of  adding  to  the  number  of  witnesses 
the  Deity  and  a  larger  or  smaller  number  of  the  saints.^  "  The 
witnesses'  names,"  says  Madox,  "were  usually  inserted  in  the 
charter,  and  made  a  particular  clause  or  part  of  it ;  which  clause 
has  been  called  the  Hiis  Testibus.  In  that  case  the  clerk  or 
writer  of  the  charter  used  to  write  down  the  witnesses'  names, 
and  not  the  witnesses  themselves  their  own  names,  as  at  this  day 
they  do  upon  the  back  or  at  the  foot  of  the  deed.^ 

Such,  then,  was  the  general  scheme  of  the  deed  which  had 
been  developed  at  the  end  of  this  period.  It  was  used  to 
evidence  or  to  effect  many  different  kinds  of  conveyances,  among 

1  Madox,  Form,  xxx,  xxxi ;  for  the  Indiction  see  vol.  ii  28. 

2  Bl.  Comm.  ii  306.  ^  Above  223. 
*  Madox,  Form,  xxvi-xxviii ;  vol.  ii  29. 

'Madox,  Form,  xxviii.  ^Vol.  i  334. 

'  Madox,  Form,  xxxi  and  no.  163. 
8  See  instances  in  ibid  xxxi,  xxxii. 
^  Ibid  xxxi. 


282  THE  LAND  LAW 

which  we  may  mention  the  following  varieties: — The  release^ 
was  used  when  the  tenant  was  already  in  occupation  of  the  land, 
and  his  lord  desired  to  convey  to  him  his  rights.  As  Littleton 
puts  it,  ''  It  shall  be  in  vain  to  make  an  estate  by  livery  of  seisin 
to  another,  when  he  hath  possession  of  the  same  land  by  the  lease 
of  the  same  man  before."  ^  In  the  course  of  the  fifteenth  century 
it  was  used,  in  conjunction  with  a  lease  and  entry  thereunder,  as  an 
alternative  method  of  conveyance  to  the  feoffment  with  livery  of 
seisin.^  In  earlier  times  there  was  sometimes  a  ceremony  with  a 
rod  to  symbolize  the  transaction ;  ^  sometimes  the  party  swore  to 
abide  by  the  transaction ;  ^  sometimes  it  was  stated  that  the  deeds 
were  also  delivered  up ;  ^  sometimes  there  is  some  proceeding 
either  in  the  king's  ^  or  in  the  lord's  court. ^  In  later  times  either 
a  deed  or  a  fine  became  the  essential  feature.  As  we  have  seen, 
at  the  end  of  this  period  the  release  filled  a  large  space  in  the  law, 
because  it  was  possible  by  its  means  to  convey  those  adverse 
rights  of  owners  out  of  possession  to  the  person  in  possession 
which  the  disorders  of  the  times  made  so  common.®  We  may 
note,  too,  that  with  the  increasing  definiteness  of  the  various  forms 
of  co-ownership,  it  comes  to  be  regarded  as  the  proper  form  of 
conveyance  between  joint  tenants,  and  a  possible  form  of  convey- 
ance between  parceners,  because  they  are  each  seised  of  the  whole 
property.  ^^  The  later  classification  of  releases,  which  we  find  in  Black- 
stone,-^^  has  been  in  substance  arrived  at  the  end  of  this  period. 
The  converse  case  to  the  release  is  the  surrender — i.e.  ''a  yielding 
up  of  an  estate  for  life  or  years  to  him  that  hath  an  immediate 
estate  in  reversion  or  remainder,  wherein  the  estate  for  life  or  years 
may  drown  by  mutual  agreement  between  them."^^  Such  trans- 
actions were  often  effected  by  deed.  But  a  deed  was  not  strictly 
necessary.  In  England,  as  we  have  seen,^^  this  form  of  convey- 
ance was  not  so  important  in  the  conveyance  of  freehold  interests 
as  it  was  in  countries  more  completely  feudalized.  A  conveyance 
which  is  somewhat  allied  to  the  release  is  the  confirmation}^     It 

1  P.  and  M.  ii  go,  91 ;  Madox,  Form,  xix-xxi. 

2§  460;  and  cp.  Y.BB.  i,  2  Ed.  II.  (S.S.)  28;  12,  13  Ed.  III.  (R.S.)  106, 
Stoutford,  arg. ;  see  Y.B.  18,  19  Ed.  III.  (R.S.)  478  for  a  case  in  which  this  con- 
veyance was  discussed. 

3  Y.BB.  II  Hy.  IV.  Mich.  pi.  61 ;  21  Ed.  IV.  Pasch.  pi.  10 ;  for  the  later  law  see 
Sanders,  Uses  (5th  ed.)  ii  73-75,  and  the  references  there  cited. 

^  Madox,  Form.  xix.  ^Ibid  nos.  671,  674,  688. 

^  Ibid  xxi  and  no.  674.  '^  See  e.g.  Ramsey  Cart,  i  no.  182. 

8  Madox,  Form.  nos.  660,  674.  ^  Vol.  ii  588. 

10  Y.B.  20  Ed.  III.  (R.S.)  ii  286;  Madox,  Form.  no.  706  (1377). 

^1  Bl.  Comm.  ii  324,  325,  he  says  that  a  release  may  operate  (i)  to  enlarge  an 
estate  ;  (2)  to  pass  an  estate  ;  (3)  to  pass  a  right ;  (4)  by  way  of  extinguishing  a  right; 
and  {5)  by  way  of  entry  and  feoffment. 

^2  Co.  Litt.  337b;  Bl.  Comm.  ii  326;  cp.  Madox,  Form.  no.  512. 

^^  Above  225.  ^'*  Madox,  Form.  xix. 


THE  FORMS  OF  CONVEYANCE        238 

was  a  conveyance  which  attempted,  so  far  as  the  conveying  party 
could  effect  it,  to  make  secure  an  estate  which  might  otherwise 
have  been  voidable.  Madox  tells  us  that  "the  most  ancient  con- 
firmations made  after  the  Conquest  often  run  like  feoffments,  with 
the  words  Dedi^  or  Concessi  and  Confirmavi,  and  are  distinguish- 
able from  the  feoffments  chiefly  by  some  words  importing  a  former 
feoffment  or  grant."  In  early  times  the  uncertainty  as  to  how 
far  the  lord  or  the  heir  was  bound  by  the  ancestor's  gift  made 
them  an  important  class  of  conveyance.^  In  later  times  they 
were  important  for  reasons  very  similar  in  kind  to  those  which 
made  releases  important.^  The  exchange^  is  "a  mutual  grant  of 
equal  interests,  the  one  in  consideration  of  the  other."  ^  The  use 
of  the  word  "  exchange  "  came  to  be  necessary  to  the  validity  of 
the  conveyance;  but  in  early  days  was  not  necessarily  used.* 
No  livery  of  seisin  was  needed  to  perfect  the  conveyance ;  but  we 
can  see  that  something  equivalent  was  required  in  the  rule  that 
the  conveyance  was  not  perfect  till  both  parties  had  ipade  entry 
on  the  land.^  Partitions  were  generally  made  by  deed.  In  the 
case  of  coparceners,  this  was  not  strictly  necessary  until  the 
passing  of  the  Statute  of  Frauds,  because,  in  the  case  of  co- 
parceners, the  right  to  partition  did  not  depend  upon  the  agree- 
ment of  the  parties.  Any  one  of  them  could  compel  partition. '^ 
In  the  case  of  joint  tenants  and  tenants  in  common  it  was  neces- 
sary because  it  could  only  be  made  by  mutual  agreement.^  The 
ordinary  deed  of  grant  has  come  by  the  end  of  this  period  to  be 
the  usual  mode  of  conveying  incorporeal  things ;  ^  and  among 
things  which  are  counted  as  incorporeal  for  the  purposes  of  convey- 
ance are  rents,  reversions,  and  seignories.^^  But,  as  we  have  seen, 
the  rule  that  an  incorporeal  thing  lies  in  grant  is  of  gradual  growth  ; 
and  to  the  end  the  grantee  did  not  enjoy  his  full  rights  unless  he 
could  prove  an  actual  user  of  his  right. ^^  In  the  case  of  a  rent  the 
deed  sometimes  recites  that  a  payment  has  been  made  to  the 

1  Above  75,  76.  2  Litt.  §§  515-550. 

^  For  some  instances  from  D.B.  see  Vinogradoff,  English  Society  226 ;  for  the 
general  rules  relating  to  exchanges,  see  Co.  Litt.  51b. 

^  Bl.  Comm.  ii  323 ;  for  specimens  see  Madox,  Form.  no.  272 ;  Eynsham  Cart, 
i  no.  179  (1199)  by  fine;  cp.  Y.BB.  i,  2  Ed.  II.  (S.S.)  143  ;  20  Ed.  III.  (R.S.)  i  58, 
60  for  some  discussion  as  to  its  nature. 

5  Madox,  Form.  nos.  259,  260,  261 ;  as  early  as  13 10  a  warranty  was  implied  and 
the  parties  relied  on  this,  Y.B.  3,  4  Ed.  II.  (S.S.)  155 ;  cp.  Y.B.  4  Ed.  II.  (S.S.) 
62,  and  the  Eyre  of  Kent  (S.S.)  ii  162 ;  in  the  earlier  forms  express  warranties  are 
usually  inserted,  see  e.g.  Madox  Form,  nos.  263,  264. 

8  Litt.  §  62  ;  Bl.  Comm.  ii  323. 

^  Above  127;  Britton  ii  72  n.g.  note  from  M.S.  N ;  Bl.  Comm.  ii  325. 

8  Above  127;  Eden  v.  Harris  (1576)  Dyer  350b;  see  Madox,  Form.  no.  163,  for 
a  form  of  partition  between  coparceners. 

^  Above  98-99. 

^0  See  e.g.  Ramsey  Cart.  ii.  no.  465. 

^1  Above  98-99,  loo-ioi. 


234  THE  LAND  LAW 

grantee.^  In  the  case  of  seignories  and  reversions  the  convey- 
ance is  not  complete  unless  the  tenant  attorns  to  his  new  lord — ■ 
i.e.  accepts  him  as  his  lord  ;  ^  and  sometimes  in  the  grant  of  a 
seignory  or  reversion  the  various  tenants  and  their  services  will  be 
accurately  named. ^  Such  attornment  could  be  oral ;  but  some- 
times we  see  ceremonies,  such  as  the  payment  of  a  small  sum  of 
money,  to  evidence  the  transaction.^  If  the  tenant  refused  to 
attorn  himself  the  court  would  attorn  him.^  We  shall  see  that  it 
was  one  of  the  advantages  of  the  conveyance  by  fine  that  upon 
it  proceedings  could  easily  be  taken  to  attorn  the  tenant. 

1  have  said  that  it  is  not  always  easy  to  keep  apart  such 
distinct  things  as  the  transaction  itself  and  the  evidence  for  that 
transaction.^  Though  the  livery  of  seisin  was  the  essential  part 
of  the  feoffment,  though  in  the  case  of  certain  of  these  other  con- 
veyances some  other  similar  ceremony,  such  as  actual  user  of  the 
right,  actual  entry  on  the  land,  or  the  attornment  of  the  tenant 
was  sometimes  necessary ;  it  was  inevitable  that  the  deed,  which 
contained  the  expression  of  the  parties  intent,  and  preserved  it  as 
a  perpetual  memorial  of  their  title,  should  assume  greater  and 
greater  importance.  That  importance  was  increased  in  the 
following  period  by  the  rise  of  Uses,  and  the  consequent  develop- 
ment of  new  and  complex  forms  of  conveyance,  by  means  of 
which  the  land  could  be  conveyed  without  the  need  for  livery  of 
seisin.  Written  documents  came  to  be  capable  of  conveying 
property.  Under  these  circumstances  it  is  not  surprising  to  find 
that  the  ceremonies  analogous  to  livery  of  seisin,^  and  ultimately 
even  the  need  for  livery  of  seisin  itself,  should  be  abolished  by  the 
legislature.  From  this  point  of  view  the  enactment  that  corporeal 
as  well  as  incorporeal  things  should  lie  in  grant  as  well  as  in 
livery  ^  is  the  logical  result  of  a  long  historical  development. 

(ii)  Conveyances  which  depend  for  their  efficacy  upon  the 
machinery  of  the  court. 

In  early  days  the  ceremonies  attending  the  conveyance  of 
property,  or  the  execution  of  the  writing  which  evidenced  that 

^  Madox,  Form.  no.  482,  *'  Et  in  possessionem  dicti  annui  redditus  praedictum 
Radulphum  Comitem  per  solucionem  unius  denarii  posui ;  "  cp.  nos.  477,  491. 

2  P.  and  M.  ii  93. 

'  See  e.g.  Ramsey  Cart,  ii  nos.  448,  465  ;  Rievaulx  Cart.  no.  349. 

^  Madox,  Form.  no.  187  (12  Ed.  IV.),  "  Noveritis  eciam,  nos  praefatam  Ducissam 
attornasse,  per  solucionem  unius  denarii,  praefatis  Priori  et  Conventui." 

^  P.  and  M.  i  328 ;  ii  93  ;  above  82. 

"Above  222;  cp.  Y.B.  14  Ed.  III.  (R.S.)  214-216,  Parning  argued  that, 
•*  Where  a  deed  is  produced  to  prove  the  title,  and  the  title  is  not  good  without  a 
deed,  as  in  the  case  of  rent  charge  and  the  like,  the  issue  may  be  taken  on  the  deed, 
but  where  gift  or  feoffment  is  taken  for  title,  even  though  a  deed  be  produced  to 
prove  the  title,  issue  shall  never  be  taken  on  the  deed." — But  the  reporter  notes  that 
the  common  opinion  is  against  Parning. 

'  E.g.  5  Anne  c.  3  as  to  the  attornment  of  the  tenant ;  7  Anne  c.  18  ;  above  100. 

8  8,  9  Victoria  c.  106  §  2. 


THE  FORMS  OF  CONVEYANCE        235 

conveyance,  were  numerous  and  varied,  in  order  that  there  might 
be  no  dispute  at  a  subsequent  period  as  to  the  facts.  If  there 
was  a  writing,  we  have  seen  that  important  or  official  persons,  or 
persons  who  lived  in  the  neighbourhood  of  the  property,  were 
often  secured  as  witnesses,^  in  order  that  the  authenticity  of  the 
writing  might  be  beyond  question.  It  is  on  similar  principles 
that  in  Anglo-Saxon  times  the  land  books  were  often  executed 
before  some  court,  or  the  fact  that  they  had  been  executed 
was  notified  to  some  court  ^ — the  Witan  in  the  case  of  the  king, 
and  humbler  courts  in  the  case  of  humbler  men.  We  meet  many 
variations  in  this  practice  after  the  Norman  Conquest.  Convey- 
ances of  all  kinds  were  acknowledged  or  executed  before  the 
king's  court,  in  addition  sometimes  to  other  ceremonies.  In 
1 1 78  Helewisa,  the  daughter  of  Roger  de  Cily,  and  the  wife  of 
William  Cheinedut,  made  a  release  to  the  Abbey  of  Eynsham. 
She  and  her  husband  swore  to  abide  by  the  arrangement  before 
the  high  altar  at  Eynsham,  and  then  acknowledged  the  gift  at 
the  Exchequer  at  Westminster  before  the  king's  justices.^  Cere- 
monies like  homage  were  similarly  witnessed ;  ^  and  we  may  per- 
haps regard  some  of  the  documents  drawn  up  in  the  style  of  the 
writ  as  emanating  from  the  curia  regis. ^  As  in  the  preceding 
period,  conveyances  continued  to  be  acknowledged,  or  com- 
promises made,  before  the  courts  of  boroughs  and  other  local 
courts.*'  After  the  Conquest  the  practice  of  enrolment,  which  was 
adopted  by  the  king's  court,  provided  another  security.  There 
are  many  instances  in  which  persons  paid  sums  of  money  in  order 
that  their  dealings  might  be  entered  on  the  Pipe  Roll ;  ^  and  when 
in  later  times  we  get  other  series  of  rolls,  such  as  the  Patent  ^  or 
Close  rolls,^  we  find  that  a  similar  use  is  made  of  them. 

But  in  all  these  cases  the  part  played  by  the  court  is  merely 
passive.  We  get  the  same  advantages  of  authenticity,  the  same 
guarantee  against  forgery,  and,  in  addition,  another  still  greater 

1  Above  231.  2  Vol.  ii  76-77. 

2  Eynsham  Cart,  i  no.  168  ;  for  other  instances  see  Madox,  Form,  xi-xiii ;  Y.BB. 
21,  22  Ed.  I.  (R.S.)  146 ;  13,  14  Ed.  III.  (R.S.)  14. 

^  Madox,  Form.  no.  291,  "  Ego  autem  homagium  suum  accepi  coram  hiis  baroni- 
bus  de  Scaccario  "  [then  follows  a  list  of  names]. 

5  Above  226. 

^  Madox,  Form.  nos.  144 — an  agreement  made  in  the  court  of  the  abbot  of 
Ramsey  before  the  abbot  and  the  sheriffs  of  Cambridge  and  Huntingdon;  328 — 
sesin  delivered  coram  probis  hominibus  of  the  town  of  Southampton ;  674 — sur- 
render of  charter  in  lord's  court ;  677 — a  release  before  the  court  of  the  borough 
of  Newcastle  (1233);  cp.  a  curious  tale  in  Rievaulx  Cart.  111-113,  of  a  dispute 
settled  in  the  lord's  courts ;  for  the  borough  courts  and  the  part  which  they  took  see 
Borough  Customs  (S.S.)  ii  cxvi,  cxvii;  Ejoisham  Cart,  i  no.  147  (1171) — a  quit  claim 
in  the  county  court  of  Cambridgeshire ;  Ramsey  Cart,  ii  no.  453 — a  confirmation 
before  an  ecclesiastical  court;  Dugdale,  Orig.  Jurid.  93  ;  for  analogies  in  Germanic 
law  see  Schulte,  Histoire  du  droit  de  I'Allemagne  (Tr.  Fournier)  457-458,  460-463. 

'  Madox,  Form.  nos.  140,  141,  142,  320,  325 ;  Ramsey  Cart,  i  no.  200. 

^  Rievaulx  Cart.  423,  424.  ®  Ibid  423. 


236  THE  LAND  LAW 

advantage  if  the  court  actually  orders  the  successful  party  in 
a  suit  to  be  put  into  possession.  It  was  an  old  rule,  and  one 
common  to  many  Germanic  nations,  that  possession  by  order  of  a 
court  gave  to  the  possessor  an  undisputed  title  as  against  all  the 
world  after  the  lapse  of  a  short  period — generally  a  year  and  a 
day.^  It  is  for  this  reason  that  landowners  desired  the  active 
intervention  of  the  court.  When,  in  Henry  II.'s  reign,  the  royal 
court  succeeded  in  securing  all,  or  almost  all,  the  important 
litigation  concerning  land  held  by  free  tenure,  it  is  not  surprising 
to  find  that  its  processes  were  made  use  of  to  effect  conveyances. 
We  begin  to  see  the  fines  and  recoveries  of  later  law.  Land- 
owners not  only  secured  the  benefit  of  possession  by  order  of  the 
court,  but  also  the  benefit  of  the  preservation  of  their  conveyances 
in  the  king's  Treasury.  As  we  have  seen,  a  special  set  of  records 
— the  Feet  of  Fines — are  almost  coeval  with  the  court  itself.^ 
Gradually  the  mode  in  which  the  fine  is  levied  and  the  legal 
consequences  of  levying  it  become  fixed  ;  and  the  royal  processes, 
here  as  elsewhere,  were  imitated  by  such  of  the  local  courts  as  still 
retained  jurisdiction  over  real  actions.^  Here  I  shall  deal  in  the 
first  place  with  fines  levied  in  the  king's  court,  and  in  the  second 
place  with  recoveries  suffered  before  the  same  tribunal. 

Fines.^ 

A  fine  or,  to  give  it  its  full  title,  a  ''  Finalis  Concordia,"  is  an 
action  compromised  in  court,  and  by  the  leave  of  the  court,  upon 
certain  terms  approved  by  the  court.  ^  One  of  the  parties  to  the 
fine  must  be  seised  of  an  estate  of  freehold  in  the  land,  either 
rightly  or  wrongfully — ''  otherwise  it  might  be  in  the  power  of  any 
two  strangers  to  deprive  a  third  person  of  his  estate  by  levying  a 
fine  of  it." ^  The  essential  parts  of  the  fine  were  fixed  during  this 
period,  and  were  as  follows:  (i)  The  original  writ  upon  which  a 
''  primer  fine "  was  payable  to  the  king.  In  later  days  it  was 
usually  a  writ  of  covenant.  In  earlier  days  many  different  kinds 
of  writ  were  used.'^     Sometimes  the  parties  used  a  writ  of  right 

1  Borough  Customs  (S.S.)  ii  cxv-cxvii ;  P.  and  M.  ii  95  ;  cp.  Brissaud  1292- 1301, 
and  Schulte,  op.  cit.  464-465  for  French  and  German  analogies.  On  the  whole 
subject  see  Maitland,  Coll.  Papers  ii  61-80  ;  above  70  n.  i. 

2  Vol.  ii  184.  For  later  measures  taken  to  further  guard  against  the  risks  of 
forgery  see  5  Henry  IV.  c.  14 ;  and  cp.  R.P.  4  Hy.  IV.  no  35,  5  Hy.  IV.  no.  28. 

3  Madox,  Form.  nos.  154,  379,  394. 

^App.  III.  (7);  P.  and  M.  ii  96-105;  Madox,  Form,  xiii-xviii ;  Coke,  Reading 
on  Fines  (1592). 

" "  Finalis  Concordia  eo  quod  Finem  imponit  negotio,  adeo  ut  neutra  pars 
litigantium  ab  eo  de  caetero  poterit  reccdere,"  Glanvil  viii  3 ;  to  the  same  effect 
Bracton  f.  435b. 

^Cruise,  Fines  105. 

■^  Madox,  Form.  nos.  361,  363,  365,  366,  474  ;  Tey's  Case  (1592)  5  Rep.  39,  cited 
P.  and  M.  ii  gS  n.  i. 


THE  FORMS  OF  CONVEYANCE        237 

and  went  as  far  as  the  battle'  or  the  grand  assize.^  It  was 
because  the  process  was  more  simple  in  personal  actions  that  the 
writs  beginning  a  real  action  went  out  of  use.^  It  would  seem 
that  if  a  fine  had  been  levied  without  original  writ  it  would, 
though  irregular,  have  been  valid,  but  reversible  by  means  of  a 
writ  of  error.*  But  all  the  property  which  was  to  be  dealt  with 
by  the  fine  must  be  mentioned  in  the  writ,  or  must  be  appurtenant 
to  that  which  was  mentioned  in  the  writ ;  though  the  exact  extent 
of  this  rule  was  perhaps  doubtful,  and  was  not  very  strictly  observed 
in  early  law.*  In  some  of  the  earlier  precedents  it  is  difficult  to  dis- 
tinguish a  fine  in  the  strict  sense  and  a  composition  dealing  with 
many  matters  settled  by  the  leave  and  with  the  sanction  of  the 
court ;  ^  and  these  earlier  precedents  naturally  puzzled  the  lawyers 
when  the  fine  and  the  procedure  upon  it  became  the  subject  of  a 
mass  of  technical  rules.^  (2)  The  '*  Licentia  concordandi,"  or 
leave  to  compromise  the  suit  upon  which  the  "  king's  silver  "  or 
*' post  fine"  is  payable. '^  (3)  The  ''concord,"  or  the  terms  upon 
which  the  parties  agree.  "It  is  usually  an  acknowledgment 
from  the  deforciants,  or  those  who  keep  the  other  out  of  possession, 
that  the  lands  in  question  are  the  right  of  the  demandant ;  and 
from  this  acknowledgment  or  recognition  of  right  thus  made,  the 
party  who  levies  the  fine  is  called  the  cognizor  or  conusor,  and 
the  person  to  whom  it  is  levied  the  cognizee  or  conusee."^ 
These,  Blackstone  tells  us,^  are  the  essential  parts  of  the  fine. 
The  two  remaining  parts  are  designed  to  preserve  the  evidence 
for  the  existence  and  the  terms  of  the  fine.  (4)  The  ''note." 
This  is  an  abstract  of  the  writ  of  covenant  and  the  concord,  con- 
taining the  parties,  the  parcels  of  land,  and  the  agreement.  A 
statute  of  Henry  IV.  provided  for  the  due  enrolment  of  these 
" notes."  ^^     (5)  The  "foot"  or  "pes."     This  contains  the  whole 

1  Madox,  Form.  no.  305  (g  Rich.  I.);  Eynsham  Cart.  no.  173  (1179);  Hunter, 
Fines  ii  97  (10  John). 

2  P.  and  M.  ii  98  n.  i. 

^Y.B.  21  Ed.  IV.  Mich.  pi.  31  (p.  62)  per  Brian,  "  Jeo  die  que  en  ancien 
temps  fines  purront  estre  levies  sans  original,  et  si  tiel  fin  a  cest  jour  soit  leve 
devant  nous  serra  bon  tanque  soit  reverse  per  breve  d'error ; "  Coke,  Reading, 
Lecture  10. 

^Ibid,  Lecture  11;  he  admits  that  in  earlier  times  the  rule  was  not  strictly 
observed;  cp.  Y.B.  16  Ed.  IIL  (R.S.)  ii  332,  from  which  it  would  appear  that 
the  stricter  rule  was  emerging  in  the  case  of  the  married  woman,  '*  because  the 
court  can  only  examine  her  about  the  matters  comprised  in  the  writ." 

5  Madox,  Form,  xviii ;  vol.  ii  266  ;  and  below  239  n.  i. 

^  As  it  was  said  in  Y.B.  21  Ed.  IV.  Mich.  pi.  32,  "  En  ancien  temps  les  Justices 
voillent  accepter  fine  quel  a  cest  jour  serra  void  .  .  .  et  le  cause  fuit  que  ceux  que 
fueront  Judges  a  eel  temps,  ne  fueront  connus  de  la  ley,  mes  ore  quant  homes  ont 
studies  le  perfeccion  de  la  ley  devomus  entendre  lour  acts  auxi  pres  lour  entents 
come  nous  poiomus  per  reason." 

■^  Cruise  17.  ^  Ibid  25. 

»  Bl.  Comm.  ii  351.  10  5  Henry  IV.  c.  14. 


238  THE  LAND  LAW 

transaction — the  subject  matter  of  the  agreement,  the  parties,  day, 
year,  place,  and  the  persons  before  whom  it  was  levied.^  Copies 
were  made  at  the  chirographer's  office,  and  delivered  to  the 
conusor  and  the  conusee,  and  another  copy  was  retained  by  the 
chirographer.2  H  jg  ^-j^jg  copy  which  was  the  chief  record  of  the 
transaction.^  It  seems  to  have  been  called  the  ''  pes  "  because 
originally  the  three  copies  of  the  fine,  which,  since  July  15,  1195, 
had  been  the  form  which  the  record  of  the  fine  had  been  required 
to  take,*  were  written  on  one  parchment;  the  conusor's  and  the 
conusee's  parts  were  written  side  by  side  at  the  top ;  and  below 
them,  separated  by  an  indented  line  cut  across  the  word  '*  chiro- 
graph," was  the  chirographer's  copy,  which  was  preserved  in  the 
Treasury.  The  Pedes  Finium  were  therefore  literally  what  they 
were  called — the  feet  of  fines.  ^ 

Gradually,  as  fines  became  more  common,  the  lawyers  began 
to  distinguish  between  the  kinds  of  fine  according  to  the  different 
transactions  effected  by  them.*' 

The  two  leading  types  of  fine  are  the  fine  sur  cognizance  de 
droit  come  ceo  que  il  ad  de  son  done,  and  the  fine  sur  cognizance  de 
droit  tantum.  The  first  is  what  is  called  an  executed  fine,  i.e. 
as  between  parties  and  privies  ^  it  operates  as  a  livery  of  seisin  in 
law.  In  other  words,  the  conusee  may  enter  without  a  writ  to 
the  sheriff  of  habere  facias  seisinam.  It  is  called  in  1 344  "  the 
strongest  possible  fine."^  The  second  is  an  executory  fine.  A 
writ  to  the  sheriff  to  give  seisin  to  the  conusee  is  needed  for  its 
completion.^  By  it  the  conusor  simply  recognizes  the  right  of 
the  conusee.  In  later  law  it  was  chiefly  used  to  pass  reversionary 
interests. ^^  Another  variety  of  this  kind  of  fine  was  the  fine  sur 
concessit,  according  to  which  the  conusor,  to  end  a  dispute  or  for 
some  other  reason,  grants  a  new  estate  to  the  conusee.^^  Both 
these  varieties  of  this  kind  of  fine  acknowledged  or  created  a 
right  in  the  conusee.  In  neither  case  was  this  right  based  upon 
a  precedent  gift.  They  do  not  appear  to  be  clearly  distinguished 
when  Coke  wrote. 

1  Bl.  Comm.  ii  351. 

2  Madox,  Form,  xiv,  xvi,  the  parties  originally  drew  their  chirograph  and  got  the 
sanction  of  the  court  to  it :  when  the  new  practice  of  drawing  it  up  in  triplicate  by 
the  officer  of  the  court  came  in  (vol.  ii  184),  it  took  the  form  of  a  chirograph  and  the 
officer  who  drew  it  was  called  the  chirographer. 

3  Cruise  34.  ^Vol.  ii  184. 
'See  diagram  in  Scargill-Bird's  index  121. 

^  Bl.  Comm.  ii  352,  353  ;  Coke,  Reading,  Lectures  2-8. 

■^ "  Privies  to  a  fine  are  such  as  are  anyway  related  to  the  parties  who  levy  the 
fine,  and  claim  under  them  by  any  right  of  blood,  or  other  right  of  representation. 
Such  as  are  the  heirs  general  of  the  cognizor  .  .  .  the  vendee  .  .  .  and  all  others 
who  must  make  title  by  the  person  who  levied  the  fine,"  Bl.  Comm.  ii  355. 

8Y.B.  18,  19  Ed.  III.  (R.S.)82. 

^  Coke,  Reading,  Lectures  2  and  6;  and  cp.  Y.B.  13,  14  Ed.  IIL  (R.S.)  94  for  an 
early  statement  of  the  distinction. 

"  Bl.  Comm.  ii  353.  Ji  Ibid. 


THE  FORMS  OF  CONVEYANCE         239 

The  first  class  of  fines  (the  executed  fine)  may  perhaps  be 
later  in  date/  and  designed  to  obviate  the  necessity  for  delivery 
of  seisin  by  the  sheriff.  Just  as  livery  of  seisin  is  out  of  place 
where  the  feoffee  is  already  in  possession,  so  a  writ  to  the  sheriff 
to  confer  seisin  would  be  out  of  place  where  the  conusee  is  al- 
ready seised.  In  the  case  of  this  kind  of  fine  it  appears  that  he 
is  already  seised,  for  the  conusor  acknowledges  that  the  pro- 
perty belongs  to  the  conusee  by  virtue  of  his  (the  conusor's) 
gift.^  But  by  this  kind  of  fine  only  an  absolute  estate  of  in- 
heritance or  of  freehold  could  pass.  It  could  not  be  used  to 
effect  such  things  as  compromises  or  family  settlements.^  With 
this  object  the  fine  sur  done  grant  et  render  was  devised,  which 
was  a  combination  of  the  two  chief  varieties  of  fine.  The  ac- 
knowledgment of  a  precedent  gift  by  conusor  to  conusee  afforded 
a  foundation  for  the  gift  by  the  conusee  of  other  estates.  In 
this  way  the  fine  could  be  used  to  effect  more  complicated  limita- 
tions than  were  possible  under  the  form  ^^ come  ceo"  and  at  the 
same  time  there  was  preserved  what  was  the  valuable  quality  of 
this  form — the  capacity  to  pass  as  between  parties  and  privies 
the  seisin  in  law  without  the  need  of  suing  out  writs  to  the 
sheriff  Thus,  for  instance,  A  (conusor)  acknowledges  that  the 
property  belongs  to  B  (conusee)  and  his  heirs  as  that  which  B 
had  of  A's  gift ;  and  B  grants  the  estate  to  A  for  life  with  re- 
mainders over.^  Such  a  re-grant  by  B  could  not  be  founded 
upon  a  fine  of  the  second  or  third  class,  because  in  such  a  case 
B  has  nothing  in  the  lands  till  the  fine  has  been  executed,  and  a 
man  cannot  grant  what  he  has  not  got.^ 

Such,  then,  was  the  conveyance  by  fine  as  it  had  been  evolved 
during  this  period.  From  the  earliest  period  in  the  history  of 
the  common  law  it  had  been  regarded  as  the  most  sacred  and 
certain  of  all  assurances.  It^takes  an  important  place  in  Glanvil's 
treatise ;  ^  and  by  the  time  of  Bracton  it  has  already  become  the 
centre  of  much  learning.     The  mode  in  which  it  could  be  levied 

1  Cruise  64;  and  cp.  the  earlier  fines  in  Madox,  Form.,  and  those  in 
Hunter,  Fines  (Rec.  Comm.) ;  some  of  the  latter,  e.g.  ii  65,  are  really  only 
compositions. 

^Y.B.  II,  12  Ed.  III.  (R.S.)  536,  "Even  if  John  whom  we  suppose  to  have 
rendered  had  nothing,  still  the  fine  may  be  eifective ;  for  if  Robert  who  acknowledged 
was  seised  at  the  time  when  the  fine  was  levied,  by  his  acknowledgment  the  fee 
simple  vested  in  John's  person,  and  by  John's  render  the  estate  of  Robert,  which  was 
only  a  freehold,  and  the  estate  among  them  and  their  blood  was  affirmed  such  for  ever 
as  was  supposed  by  the  fine ; "  cp.  2,  3  Ed.  II.  (S.S.)  156. 

^Bl.  Comm.  ii  353. 

4  Madox,  Form.  nos.  372  (7  Ed.  I.),  375  (i  Ed.  II.),  377  (7  Ed.  III.). 

^  Coke,  Reading,  Lecture  6,  •'  Cest  fin  sur  grant  et  render  ne  poet  estre  levie  sur 
un  fin  executorie :  et  pur  ceo,  si  home  levie  un  fine  sur  conusans  de  droit  tantum  al 
J.S.  il  ne  poet  graunte  et  render  les  terres  arrere  al  conusor,  pur  ceo,  que  le  conusee 
n'ad  riens  en  les  terres,  tanque  execution  sue,  et  home  ne  poet  graunt  ceo,  que  il 
n'ad;"  cp.  Y.BB.  2,  3  Ed.  II.  (S.S.)  156;  18,  19  Ed.  III.  (R.S.)  108-112. 

^  Glanvil,  Bk.  viii. 


240  THE  LAND  LAW 

was  in  the  thirteenth  century  the  subject  of  a  short  tract,  which 
is  printed  among  the  statutes  of  uncertain  date ;  ^  and  in  the 
fourteenth  century  there  is  at  least  one  other  unpublished  tract 
relating  to  the  same  subject.^  The  effects  of  a  fine  had  engaged, 
as  we  shall  see,  the  attention  of  the  legislature ;  and  it  had  been 
said  in  Parliament,  in  Thomas  Weyland's  case  ^  (1291),  that  *' in 
this  realm  there  is  neither  provided  nor  devised  a  greater  or  more 
solemn  assurance,  nor  one  through  which  a  man  may  have  a  more 
secure  estate,  nor  can  he  produce  more  solemn  testimony  to  prove 
the  existence  of  that  estate,  than  a  fine  levied  in  the  court  of  our 
lord  the  king."*  All  through  this  period  it  was  regarded  with 
the  same  reverence.  To  Coke  it  was  "  one  of  the  highest  matters 
of  record,  first  instituted  for  the  quiet  establishing  and  sure  settling 
of  men's  inheritances."  ^  If  we  look  at  some  of  the  effects  of  the 
fine  we  shall  understand  the  reasons  for  the  reverence  with  which 
it  was  regarded. 

(i)  In  early  law  the  fine  ''  sets  a  short  preclusive  term  running 
against  the  whole  world,  parties,  privies,  and  strangers."^  The 
only  exceptions  are  persons  under  some  such  specific  disabilities 
as  minority,  imprisonment,  insanity  or  absence  beyond  the  seas.'^ 
As  we  have  seen,  one  of  the  parties  must  be  seised  of  the  land ; 
but  even  if  neither  were  seised  it  was  enacted  in  1 299  that  the  fine, 
provided  it  were  duly  levied,  though  it  had  no  effect  on  the  rights 
of  strangers,  should  bind  parties  and  privies.^  The  length  of  this 
term  was  ultimately  fixed  at  a  year  and  a  day.^     Unless  within 

^  Modus  Levandi  Fines,  Statutes  (R.C.)  i  214;  it  is  often  printed  as  a  statute  of 
18  Edward  I. 

2  P.  and  M.  ii  98  n.  i.  3R.p.  j  67  (19  Ed.  I.  no.  i). 

*  Cp.  the  Modus  Levandi,  which  speaks  of  the  "  haute  bare,"  •*  graunt  force,"  and 
"  puissaunt  nature  "  of  the  fine. 

^  Coke,  Reading,  Lecture  i ;  to  the  same  effect  is  the  argument  in  Stowel  v. 
Lord  Zouch  (1563)  Plowden  at  p.  357. 

^  P.  and  M.  ii  loo. 

■^  Modus  Levandi,  "  A  fine  .  .  .  concludeth  not  only  such  as  be  parties  and 
privies  thereto,  and  their  heirs,  but  all  other  people  of  the  world  being  of  full  age,  out 
of  prison,  of  good  memory,  and  within  the  four  seas  the  day  of  the  fine  levied,  if  they 
make  not  their  claim  by  their  action  on  the  foot  of  the  fine  within  a  year  and  a  day;  " 
cp.  Eynsham  Cart,  i  p.  7  (1220)  for  a  fine  disputed  on  the  ground  of  absence. 

^  P.  and  M.  ii  loi  n.  i ;  27  Edward  L  st.  i  c.  i — the  statute  had  a  retrospective 
operation;  its  interpretation  is  discussed  at  some  length  in  Y.B.  13,  14  Ed.  III. 
(R.S.)  36,  86-96;  at  p.  36  Scrope  says,  "  It  would  be  right  that  the  fine  should  be 
avoided  by  averment  when  he  who  rendered  had  nothing,  and  in  all  other  cases 
where  the  fines  are  good  only  as  between  parties  who  are  ousted  of  the  averment  by 
statute ;  "  at  p.  90  Aldeburgh  says,  "  The  subject  of  this  statute  is  that  of  fines  duly 
levied,  and  its  purport  is  that  neither  those  who  are  parties  to  the  fines  nor  their 
heirs  shall  be  admitted  to  avoid  them  .  .  .  still,  the  object  of  his  averment  is  not  to 
avoid  the  fine,  but  it  is  to  prove  by  the  deed  which  he  alleges  that  the  fine  was 
never  in  force  against  him  and  so  to  prove  that  it  has  not  been  duly  levied; 
wherefore  ...  he  shall  have  the  averment ;  "  cp.  as  to  this  point  Y.B.  33-35  Ed.  I. 
(R.S.)  435-439. 

*  P.  and  M.  ii  loi — it  was  not  settled  in  Bracton's  time,  but  it  was  in  the  reign 
of  Edward  I.,  as  appears  from  the  Modus  Levandi,  and  Fleta  6.  53  ;  cp.  Plowden  at  pp. 
357.  358. 


THE  FORMS  OF  CONVEYANCE        241 

that  term  action  had  been  brought,  claim  entered,  or  entry  made, 
all  adverse  rights  disappeared.^  It  is  probable  that  this  term 
began  to  run,  not  from  the  time  when  the  action  was  compromised, 
but  from  the  time  when  the  sheriff  had  delivered  seisin  in  pur- 
suance of  the  fine.  "  Seisin  under  the  order  of  the  king's  court, 
seisin  under  the  king's  ban,  it  is  this  rather  than  the  mere  com- 
promise of  an  action  that,  if  we  look  far  enough  back,  seems  the 
cause  of  preclusion."^  Therefore,  it  would  be  a  good  plea  to  a 
fine  to  say  that  the  party  levying  it  and  his  heirs  had  been  seised 
at  the  time  of  the  fine  and  ever  since.  The  statute  of  1 299,  asserting 
that  this  was  contrary  to  old  law,  took  away  this  plea  from  the 
parties  and  privies.^  The  result  was  that  the  short  preclusive  term 
began  to  run  as  against  the  parties  and  privies  from  the  levying  of 
the  fine — in  other  words,  the  fine,  and  not  the  livery  of  seisin  given 
in  pursuance  of  the  fine,  as  between  the  parties  and  privies,  became 
the  conveyance. 

We  have  seen  already  that  the  legislation  of  Edward  I.'s  reign 
was  tending  to  obscure  the  meaning  of  the  term  *'  seisin  " — to  give 
it  some  connotation  of  property.*  Probably  this  legislation  with 
regard  to  fines  assisted  the  process.  It  allowed  this  seisin  to  be 
transferred,  as  between  parties  and  privies,  by  a  ceremony  before 
a  court ;  and  this  must,  in  the  long  run,  have  tended  to  make  a 
transfer  of  seisin  look  a  little  less  like  the  simple  delivery  of 
possession  which  is  transferred  by  a  physical  traditio.  It  certainly 
tended  to  obscure  the  fact  that  it  was  seisin  given  by  order  of  the 
court,  and  not  the  mere  levying  of  the  fine  which  originally  gave  to 
a  fine  its  peculiar  effects  as  against  all  the  world  ;  and  at  the  same 
time  other  causes  were  operating  in  the  same  direction,  (i)  We 
have  seen  that  if  the  conusee  was  already  seised  a  writ  to  the  sheriff 
to  give  him  seisin  was  not  necessary ;  and  that  the  fine  "  cofne  ceo  " 
probably  gained  its  popularity  because,  the  fact  of  the  conusee's 

1  P.  and  M.  ii  loi,  102;  Coke,  Second  Instit.  518.  Maitland  (P.  and  M.  ii  102) 
tells  us  that  it  is  a  common  thing  on  old  fines  to  see  claims  entered  ;  at  the  back  of 
the  "  pes  "  we  read,  '•  A  apponit  clameum  suum ;  "  see  Plowden  at  p.  358. 

2  P.  and  M.  ii  loi ;  and  it  is  quite  clear  that  the  mere  judgment  of  the  court  will 
not  do — there  must  be  a  physical  transfer  of  seisin,  see  Y.BB.  20,  21  Ed.  I.  (R.S.)  52 
per  Berewicke ;  33-35  Ed.  I.  (R.S.)  200,  per  Herle,  arg. ;  i,  2  Ed.  II.  (S.S.)  47, 
"  Freehold  never  passes  till  seisin  is  delivered  by  the  king's  officer  with  the  court's 
warrant ;  "  Stowel  v.  Lord  Zouch  (1563)  Plowden  at  p.  357.  It  is  the  fact  that  the 
fine  owes  its  effect  to  seisin  delivered  by  a  royal  official,  which  renders  it  doubtful 
whether  there  is  any  relation  between  it  and  the  injure  cessio  of  Roman  law ;  Bracton, 
no  doubt  (f.  310a,  b)  defines  it  in  terms  applying  to  the  in  jure  cessio ;  but  we  cannot 
lay  any  great  stress  on  his  use  of  the  phraseology  of  Roman  law,  vol.  ii  284-285. 

s  27  Edward  I.  st.  i  c.  i ;  as  Maitland  points  out  (P.  and  M.  ii  105  n.  i),  to  allow 
such  a  plea  to  a  party  may  well  have  been  an  innovation ;  but  it  is  probable  that  it 
had  always  been  allowed  to  the  heir ;  he  shows  that  it  is  sanctioned  by  Bracton  and 
by  cases  in  the  Note  Book;  cp.  Y.B.  17,  18  Ed.  III.  (R.S.)  178  per  Shardelowe,  J., 
for  a  good  statement  of  the  evil  which  the  statute  was  designed  to  remedy. 

*  Vol.  ii  354. 

VOL.   III.  — 1 6 


242  THE  LAND  LAW 

being  seised  being  obvious  on  the  face  of  the  fine,  seisin  by  order 
of  the  court  could  be  dispensed  with.  Such  a  fine  conferred  a 
seisin  in  law  as  against  the  conusor  and  those  in  privity  with  him.^ 
If  it  was  desired  to  make  any  further  limitations  recourse  could, 
as  we  have  seen,  be  had  to  the  fine  ^^  sur  done  grant  et  render.'^ 
(ii)  When  it  came  to  be  recognized  that  incorporeal  things  lay 
in  grant,  the  levying  of  any  kind  of  fine  of  an  incorporeal  thing 
had  the  effect  of  a  grant,  and  vested  that  thing  in  the  conusee.^ 
In  all  these  cases,  therefore,  the  levying  of  the  fine  rather  than 
the  actual  conferring  of  seisin  by  the  court  came  to  be  the 
important  matter.  It  is  true  that  the  seisin  so  obtained,  whether 
under  the  statute  of  1299  o^  under  the  fine  "-^  come  ceo!'  bound  only 
the  parties  and  privies.  It  would  therefore  be  open  to  a  stranger 
to  show  that  the  facts  alleged  by  the  fine  were  otherwise ;  ^  or  that 
the  conusee  had  never  been  seised  ;  *  or  that  the  fine  had  not  been 
duly  levied  so  as  to  bring  it  within  the  protection  of  the  statute  of 
1 299.^  But  the  case  of  the  Stantons  shows  that  the  court  regarded 
the  last-mentioned  plea  with  suspicion  and  admitted  it  with 
difficulty.*'  As  Coke,  referring  to  this  case,  well  puts  it,'''  "  The 
judges  themselves  were  sometimes  so  fearful  to  weaken  the 
strength  and  force  of  fines,  and  sometimes  so  bedazzled  with  the 
bright  solemnity  of  the  fine,  as  Sir  John  Stoner,  Chief  Justice  of 
the  Court  of  Common  Pleas,  did  see,  that  an  averment  ought  to 
be  had  against  a  fine,  both  by  Conscience  and  the  Law  of  God  ; 
and  yet,  lest  the  fine  should  be  avoided,  he  would  be  advised."^ 
Unless  it  could  be  shown  that  neither  of  the  parties  to  the  fine 

^For  the  advantages  of  an  executed  fine  see  Y.B.  2,  3  Ed.  II.  (S.S.)  156  per 
Brabazon,  C.J. ;  Coke,  Reading,  Lecture  2,  says  of  an  executed  fine  ^^  come  ceo,'''' 
that  it  is  so  called,  not  because  the  conusee  is  in  possession,  but  because,  being 
executed  as  between  the  parties,  he  is  deemed  as  against  them  to  be  in  possession ; 
but  as  against  strangers  the  conusor  is  in  possession  till  entry  made,  see  next  note ; 
the  principle  is  clearly  stated  Y.B.  17,  18  Ed.  III.  (R.S.)  200  hy  R.  Thorpe,  arg., 
that  the  effect  of  a  fine  ^^  come  ceo  "  is  to  vest  the  freehold  as  against  the  conusor 
in  the  conusee. 

2  Coke,  Reading,  Lecture  2,  '*  C'est  fin  est  execute,  pur  ceo  que  suppose  un 
done  precedent,  mes  coment  que  ceo  soit  execute  enter  les  parties,  uncore  quant  a 
touts  estrangers  le  conusor  demurt  seise  del  terre :  mes  si  tiel  fine  soit  levie  d'un 
Rent,  Common,  Advowson,  Liberties,  ou  tiels  semblables,  le  conusee  ad  un  frank 
tenement  en  Ley  en  luy,  devant  ascun  possession,  ou  actual  seisin  ewe;"  cp. 
Shelley's  Case  (1581)  i  Co.  Rep.  at  p.  97a. 

3  Eyre  of  Kent  (S.S.)  ii  170;  Y.B.  12  Rich.  II.  138-139. 

4  See  Y.B.  6  Ed.  II.  (S.S.)  i  116-117. 

5 Y.B.  13,  14  Ed.  in.  (R.S.)  go;  above  240. 

«Ibid  16-36;  cp.  3,  4  Ed.  II.  (S.S.)  52-56. 

'  Second  Instit.  523. 

^  The  views  of  Stonore,  C.J.,  are  taken  from  another  case  of  the  same  year, 
Y.B.  13,  14  Ed.  III.  (R.S.)  96,  "We  see,  on  the  one  hand,  that  according  to  good 
conscience  and  the  law  of  God  it  would  be  contrary  to  what  is  right,  if  the  plaintiff 
speaks  the  truth,  that  by  such  a  fine,  which  is  void,  he  should  be  disinherited ;  and, 
on  the  other  hand,  it  is  a  strong  measure,  having  regard  to  the  law  of  the  land,  to 
take  an  averment  which  may  annul  the  fine  ;  wherefore  we  wish  well  to  consider  it." 


THE  FORMS  OF  CONVEYANCE        243 

had  anything  in  the  land  on  the  day  when  the  fine  was  levied,  it 
was  in  practice  difficult  for  strangers  to  stop  the  running  of  the 
short  period  of  a  year  and  a  day  which  would  bar  their  rights  for 
ever.  In  1338  Trewitt,  with  the  assent  of  the  court,  maintained 
that  it  was  only  if  a  third  person  could  show  that  neither  party 
had  anything  in  the  land  at  the  time  of  the  fine  levied  that  he 
could  avoid  the  fine ;  and  in  order  to  do  this  he  must,  as  Shar- 
shulle,  J.,  pointed  out,  show  who  was  seised.^  It  might  well 
happen  that  the  interested  persons  never  heard  of  the  fine  till  it 
was  too  late.  Nor  were  matters  mended  if  these  strangers  were, 
as  it  was  very  likely  they  would  be,  persons  entitled  in  remainder 
or  reversion.  Coke^  tells  us  that  such  entry  as  would  stop  the 
running  of  the  period  of  limitation  must  be  made  by  the  person 
who  had  a  present  right ;  "  and  therefore  if  there  were  tenant  for 
life  or  in  tail,  the  reversion  or  remainder  over  in  fee,  he  that  had 
right  of  reversion  or  remainder  expectant  upon  an  estate  for  life 
or  in  tail  could  make  no  claim,  because  he  had  neither  present 
right  of  action  nor  of  entry ;  and  therefore  in  that  case  the  tenant 
for  life  or  in  tail  must  make  his  claim ;  and  that  claim  either  by 
action  or  entry  upon  the  foot  of  the  fine,  or  by  lawful  entry  or  by 
continual  claim,  should  not  only  have  preserved  their  own  right, 
but  also  the  right  of  them  in  reversion  or  remainder ;  but  if  no 
claim  were  made  by  the  particular  tenant,  the  right  of  them  in 
rernainder  or  reversion  were  for  ever  bound  by  the  common  law."  ^ 
Against  such  law  we  are  not  surprised  to  find  parliamentary 
petitions.^  In  answer  to  one  of  these  petitions  the  Statute  of 
Non-claim  was  enacted  in  1360,^  by  which  it  was  provided  that 
a  fine  should  not  affect  the  rights  of  strangers.  But  this  went 
too  far  in  the  other  direction.  No  man  could  be  sure  of  his 
possessions;  and  if  we  consider  the  extent  to  which  the  techni- 
cality of  the  law  favoured  the  manoeuvres  of  the  powerful  and 

lY.B.  12,  13  Ed.  III.  (R.S.)  536;  cp.  17,  18  Ed.  III.  (R.S.)  178,  18^  per  Grene, 
arg. ;  S.C.  at  p.  184  Sharshulle,  J.,  says,  •*  I  understand  the  statute  to  mean  (and  so 
I  have  heard  the  sages  of  the  law  say)  that  neither  parties  nor  heirs  of  parties  shall 
have  any  averment  contrary  to  the  fine  in  order  to  avoid  it,  nor  a  stranger  any 
more,  except  on  special  matter.  .  .  .  The  special  matter  which  would  give  him  the 
averment  would  be  on  the  ground  that  himself,  or  some  other  person,  whose  estate 
he  has,  was  seised ;  therefore  that  affirmative,  that  is  to  say  the  seisin  of  another 
person,  would  be  a  more  natural  issue  than  the  negative  on  the  non-seisin  of  the 
[parties ;  "  cp.  p.  202  for  another  version  of  the  same  statement  ;  for  a  case  in  which 
la  stranger  tried  to  delay  the  levying  of  a  fine  on  the  ground  that  the  parties  had 
lothing  in  the  land  see  Y.B.  6  Ed.  II.  (S.S.)  195. 

2  Second  Instit.  518;  to  the  same  effect  Stowel  v.  Lord  Zouch  (1563)  Plowden 
[at  p.  359. 

[  2  These  doctrines  will  make  it  plain  that  by  levying  a  fine  it  was  very  easy  to 
[defeat  the  claims  of  donors  and  heirs  to  conditional  fees  (above  113-114),  and  will 
show  that  the  clause  in  De  Bonis  (above  117)  to  the  effect  that  a  fine  should  not 
affect  their  rights  was  absolutely  necessary  to  secure  the  due  working  of  the  statute. 

*R.P.  ii  142  (i7Ed.  III.  no.  26).  834  Edward  III.  c.  16. 


244  THE  LAND  LAW 

the  litigious,^  if  we  consider  the  encouragement  which  this  state 
of  the  law  gave  to  disorders  which  culminated  in  the  Wars  of 
the  Roses,  we  are  not  surprised  to  find  that  in  Richard  II  I. 's 
and  Henry  VII.'s  reigns  this  statute  was  repealed  and  the  law 
modified.  ''When  we  remember,"  says  Maitland,^  "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."  It  was  clearly  a  piece  of  good  statesmanship  to 
restore  this  piece  of  firm  ground. 

Henry  VII.'s  statute^  to  some  extent  restored  to  the  fine 
its  old  preclusive  effect.  The  court  of  Common  Pleas  again 
became  ''market  overt  for  the  assurances  of  land  by  fine."^ 
But  the  statute  lengthened  the  period  which  must  elapse  before 
this  effect  was  obtained  to  five  years;  and  it  avoided  some  of 
the  defects  of  the  old  law  by  requiring  the  fine  to  be  levied  with 
proclamations,  and  by  allowing  those  in  reversion  and  remainder, 
as  well  as  those  under  certain  specified  disabilities,  a  period  of 
five  years  after  their  estates  vested  in  possession,  or  their  dis- 
ability terminated,  to  make  their  claims.  Thus  the  older  law 
was  restored  with  modifications.  The  difference  between  exe- 
cuted and  executory  fines  still  remained  ;  and  it  was  made  a 
principal  division  by  Coke  in  his  Reading  on  Fines.  It  serves 
to  remind  us  of  the  time  when  it  was  not  the  levying  of  the 
fine,  but  the  livery  of  seisin  by  the  sheriff  which  made  the 
conveyance.  With  the  rise  of  uses  all  the  older  questions  as 
to  the  passing  of  the  seisin  rapidly  became  obsolete.  When 
a  fine  ''come  ceo''  was  levied  to  certain  uses  the  seisin  was 
transmuted,  and  the  statute  operated  to  annex  to  the  uses 
declared  upon  that  seisin  the  legal  estate.^ 

With  the  effect  of  the  fine  in  barring  an  estate  tail  I  have 
already  dealt.® 

1  Vol.  ii  415-416,  457-459.  ^  p.  and  M.  ii  102. 

2  4  Henry  VII.  c.  24,  re-enacting  and  improving  i  Richard  III.  c.  7. 
^Fermor's   Case  (1602)  3  Co.  Rep.  78b;  cp.  Coke,  Reading,  Lecture  i,  "As 

the  common  law  hath  prescribed  a  sure  and  safe  way  to  require  and  get  the 
property  of  goods,  by  sale  in  market  overt ;  so  also  the  common  law  hath  ordained 
a  sure  manner  of  conveyance  for  the  purchaser  of  lands;  "  "if  it  is  a  mere  legal 
title,  and  a  man  has  purchased  an  estate  which  he  sees  himself  has  a  defect  upon  the 
face  of  the  deeds,  yet  the  fine  will  be  a  bar ;  ...  for  the  defect  upon  the  face 
of  the  deeds  is  often  the  occasion  of  the  fine's  being  levied,"  Story  v.  Lord  Windsor 
{1743)  2  Atk.  at  p.  631  per  Lord  Hardwicke;  and  see  Stowel  v.  Lord  Zouch  (1569), 
Plowden  at  p.  369 ;  the  arguments  in  this  case  contain  a  very  elaborate  discussion 
of  this  Act. 

5B1.  Comm.  ii  363,  364;  Sir  Moyle  Finch's  Case  (1607),  6  Co.  Rep.  68a,  68b. 

^  Above  120. 


THE  FORMS  OF  CONVEYANCE        245 

(2)  The  fine  gave  an  effectual  guarantee  against  forgery.  It 
is  true  that  attempts  to  forge  fines  were  not  unknown ;  but  there 
was  every  chance  that  the  forger  would  be  discovered.^  We 
have  seen  that  this  security  was  strengthened  by  an  Act  of 
Henry  IV.'s  reign.^ 

(3)  There  was  a  very  speedy  process  provided  by  which 
the  conusee  could  get  possession ;  or,  if  the  fine  was  of  a 
reversion,  by  which  the  tenants  could  be  attorned  to  the 
conusee.^ 

(4)  From  the  thirteenth  century  onwards  it  was  the  married 
woman's  conveyance.  The  judges  must  examine  her  to  see 
if  she  freely  consents.^  If  they  were  satisfied  and  passed  the 
fine,  she  could  not  upset  the  transaction  by  a  cui  in  vita  ^  after 
her  husband's  death.  The  principle  seems  to  be  that  a  fine 
is  so  solemn  in  its  nature  that,  once  passed,  it  stands.  "This 
is  so  to  be  understood,"  says  Coke,  ''  that  it  [the  fine]  ought 
not  to  be  received,  if  she  be  not  examined,  and  freely  assent 
as  is  aforesaid ;  but  if  the  fine  be  received,  and  recorded,  the 
feme  covert  or  her  heirs  shall  not  be  received  to  aver  that 
she  was  not  examined  nor  assented :  for  this  should  be  against 
the  Record  of  the  Court,  and  tending  to  the  weakening  of 
the  general  assurances  of  the  Realm."  ^  It  was  not,  as  in 
later  law,  the  separate  examination,  but  the  sanctity  of  the 
fine,  which  made  it  the  married  woman's  conveyance/  The 
same  principles  were  applied  to  a  fine  levied  by  an  infant  or  a 
lunatic,  or  to  an  irregular  fine  which  had  been  in  fact  levied.^ 

(5)  It  afforded  an  easy  way  of  effecting  a  family  settlement 
by  one  conveyance ;  but  of  this,  and  of  the  influence  of  the 
fine  upon  the  development  of  conveyancing,  I  shall  speak 
later.  9 

^P.  and  M.  ii  loo;  Plac.  Abbrev.  182. 

2  Above  237.  3  p^  and  M.  ii  100,  102. 

4  Modus  Levandi ;  see  e.g.  Y.B.  19  Ed.  III.  (R.S.)  38 ;  and  Y.B.  3,  4  Ed.  II. 
(S.S.)  151  for  a  case  where,  on  examination,  it  appeared  that  the  woman  did  not 
consent. 

"  For  this  writ  see  above  22. 

^  Second  Instit.  515  ;  but  the  woman  was  not  barred  if  the  fine  was  on  the 
acknowledgment  of  the  husband  alone,  Y.B.  20  Ed.  III.  (R.S.)  ii  72-80. 

'  In  later  law  the  reason  for  the  efficacy  of  this  conveyance  is  found  rather  in 
the  separate  examination,  see  the  authorities  collected  by  Parker^  J.,  in  Johnson 
v.  Clark  [1908]  i  Ch.  at  pp.  313-318.  The  transition  between  these  two  views 
probably  occurred  in  Edward  IV. 's  reign  ;  in  Y.B.  9  Ed.  IV.  Trin.  pi.  44  Littleton 
said  in  argument  that,  though  a  married  woman  could  not  be  estopped  by  deed, 
she  might  be  estopped  by  such  matter  of  record  as  a  fine  or  a  recovery ;  but  in 
Y.B.  15  Ed.  IV.  Trin.  pi.  6  Littleton  and  Brian,  C.J.,  agreed  that  she  could  not 
ibe  estopped  by  fine  or  recovery  unless  she  had  been  separately  examined, 
f  8  Cruise  iii ;  Coke,  Reading,  Lecture  7  ;  Plowden,  34;  above  242  ;  Y.B.  12,  13 
Ed.  III.  (R.S.)  276— the  judge  who  had  received  an  infant's  fine  unconditionally  was 
blamed ;  apparently  the  fine  was  good — but  the  report  is  not  very  clear, 

^  Below  252-254. 


246  THE  LAND  LAW 

Recoveries. 

I  have  already  said  something  of  the  nature  of  a  recovery.^ 
During  this  period  it  was  never,  like  the  fine,  a  regular  mode 
of  conveyance.^  It  was  regarded  rather  as  a  collusive  proceeding 
designed  to  evade  the  law.  That  this  was  its  character  in 
early  law  is  quite  clear.  It  had  been  used  to  oust  termors 
of  their  land,^  to  enable  husbands  to  convey  their  wives'  land,^ 
to  evade  their  wives'  claims  to  dower,  ^  to  defeat  the  laws  of 
mortmain.^  In  all  these  cases  it  had  been  necessary  to  pass 
statutes  to  nullify  the  effects  of  a  recovery.  Finally  we  have 
seen  it  was  used  in  conjunction  with  the  law  as  to  warranty 
to  bar  an  estate  tail.'''  It  was  only  because  this  coincided 
with  the  policy  of  the  law  that  it  was  allowed  to  operate  in 
this  case,  and  thus  at  length  to  attain  to  the  dignity  of  a 
common  assurance.^  As  was  the  case  with  the  fine,  the  re- 
covery was  not  perfect  till  seisin  had  been  delivered  in  pursu- 
ance of  the  judgment  of  the  court  ;^  but  here,  too,  the  rise  of 
uses  deprived  such  questions  of  almost  all  their  practical  im- 
portance. Similarly  a  recovery  suffered  by  a  married  woman 
or  an  infant  was  good  in  the  same  manner  and  for  the  same 
reasons  as  a  fine  levied  by  persons  under  these  disabilities.^^ 

(2)  The  Copyhold. 

It  is  during  this  period  that  the  present  mode  of  copyhold 
conveyance  by  way  of  surrender  in  court  and  admittance  by 
the  lord  or  his  steward  was  evolved.  The  form  of  this  con- 
veyance was  one  of  the  earliest  results  of  the  practice  of  keeping 
court  rolls,  which,  as  we  have  seen,  became  general  in  the 
thirteenth  century. ^^  It  is  the  form  of  the  conveyance  which 
has  given  to  the  copyholder  his  name,  and  has  supplied  in 
later  law  the  chief  test  between  free  and  copyhold  tenure. ^^ 

We  can  see  the  evolution  of  this  mode  of  conveyance  upon 
the  rolls  of  manorial  courts.  Maitland  observes  that,  from 
the  rolls  of  the  Bishop  of  Ely's  court  at  Littleport,  we  can  see 
a  stage  in  the  growth  of  this  mode  of  conveyance,  and  therefore 

1  Above  117,  118-119. 

2  This  is  well  illustrated  by  the  fact  that  no  fine  for  alienation  was  payable  on 
a  recovery  till  32  Henry  VIII.  c.  i,  "  for  it  was  no  alienation  since  the  recoveror 
claimed  not  in  by  the  tenant,"  Staunford,  Prerogative  c.  7. 

2  Stat,  of  Gloucester,  6  Edward  I.  c.  11. 

4  13  Edward  I.  st.  i  c.  3.  '  Ibid  c.  4. 

^  Ibid  c.  32.  '  Above  118-120. 

8  It  was  said  in  1614  (10  Co.  Rep.  at  p.  40)  that  they  were  "  the  sinews  of 
assurances  and  inheritances  and  founded  upon  great  reason  and  authority;"  and 
that  a  person  who  dared  speak  against  them  was  •'  not  worthy  to  be  of  the  pro- 
fession of  the  law." 

»  Cruise,  Recoveries  13,  138,  139.  1°  Ibid  143,  146;  below  517-518. 

^1  Vol  ii  370-371,  ^"^  Ibid  33  ;  below  268, 


THE  FORMS  OF  CONVEYANCE        247 

in  the  formation  of  copyhold  tenure.  **  In  the  cases  from 
Edward  I.'s  reign,  in  which  there  is  litigation  about  villein 
tenements,  a  jury  is  employed ;  at  a  little  later  date  the  liti- 
gants put  themselves  not  upon  a  jury,  but  upon  the  rolls  of 
the  court  as  giving  the  proper  proof  of  title. ^  On  the  Durham 
Halmote  rolls,  a  tenant  is  said  in  1345  to  hold  ''per  rotulos 
Halmoti."^  When  this  mode  of  conveyance  has  become  firmly 
established  we  can  see  that  it  is  used  to  effect  many  different 
kinds  of  disposition — settlements,^  partitions,*  and,  in  fact,  most 
of  the  other  arrangements  which,  in  the  case  of  land  of  free 
tenure,  were  effected  or  evidenced  by  deed.^  Similarly  we 
see  in  the  manorial  court  a  proceeding  very  like  a  fine.* 

It  is  clear  that  this  mode  of  conveyance  emphasized  the  lord's 
rights.  He  was  able  to  charge  fines  upon  admittance  '^  and  some- 
times for  enrolment ;  ^  and  therefore  from  an  early  date  the  rule 
was  established  that  the  use  of  any  other  mode  of  conveyance 
was  a  cause  of  forfeiture.^  The  lord  must  not  be  defrauded  of 
his  dues.  Also  he  was  entitled,  in  early  days,  to  some  discretion 
as  to  the  kind  of  tenants  who  proposed  to  join  his  manor.  As 
we  have  seen,  the  manor  was  a  little  community ;  ^^  and  the  con- 
veyance which  conferred  the  duties  and  privileges  of  membership 
could  not  be  regarded  as  merely  the  affair  of  the  transferor  and 
the  transferee.  Both  the  lord  and  the  court  were  interested  in 
knowing  something  about  it.^^ 

In  later  days,  when  copyhold  custom  became  stereotyped,  and 
enforceable  as  against  the  lord ;  ^^  when  copyhold  tenure  came  to 
denote  simply  property  of  a  peculiar  type ;  the  discretionary  powers 
of  lord  and  court  disappeared.     By  the  time  of  Coke  the  lord  had 

^The  Court  Baron  (S.S.)  112;  cp.  for  instances  of  the  ordinary  modes  of  con- 
veyance, ibid  122,  125,  130,  135,  6 ;  for  a  case  where  the  terrier  is  vouched  as 
evidence,  ibid  133  (1321);  where  the  rolls  are  vouched,  134  (1321) ;  where  the  rolls 
are  ordered  to  be  searched,  147  (1327). 

2  Halmote  Rolls  (Surt.  Soc.)  14. 

'Select  Pleas  in  Manorial  Courts  (S.S.)  126,  127  for  an  elaborate  settlement, 
and,  apparently,  a  testamentary  bequest  by  the  chaplain ;  The  Court  Baron  (S.S.) 
135.  136. 

4  Select  Pleas,  etc.  183. 

^Durham  Halmote  Rolls  ri,  6g  (compositions);  most  of  the  instances  on  the 
rolls  are  grants  of  life  interests. 

^  Select  Pleas  in  Manorial  Courts  24 ;  cp.  The  Court  Baron  138 — a  married 
woman  separately  examined. 

■^  Select  Pleas,  etc.  11,  23. 

8  Ibid  40,  where  los.  is  paid  to  have  a  settlement  enrolled  in  full  court. 

*  Ibid  37,  38  ;  gi  (fine  imposed),  171. 

10  Vol.  ii  377-378. 

"  Select  Pleas  in  Manorial  Courts  127 — the  entry  which  deals  with  the  testa- 
mentary proceedings  of  the  chaplain  tells  us  that  the  jury,  saying  that  they  knew 
nothing  of  the  matter,  departed  in  contempt ;  Maitland  suggests  that  they  did  so 
because  they  did  not  like  these  proceedings. 

^2  Above  208-209. 


248  THE  LAND  LAW 

become  simply  "custom's  instrument."^  He  is  merely  an  agent 
to  carry  out  the  wishes  of  the  tenant  in  accordance  with  the 
custom.^  The  form  of  the  conveyance  tells  us  of  a  time  when 
his  position  was  very  different — but  it  is  a  bare  form,  out  of 
which  the  reality  has  departed. 

(3)   The  lease  for  years. 

We  have  seen  that  the  position  of  a  chattel  real  assumed  by 
the  lease  for  a  term  of  years  was  the  result  of  a  technical  rule 
which  had  its  origin  in  an  attempt  to  imitate  the  Roman  law  of 
possession.^  We  have  seen,  too,  that  the  result  of  this  rule  was 
to  deny  any  kind  of  real  right  to  the  lessee  for  years  and  to  give 
him  only  a  personal  right  as  against  his  landlord ;  but  that  this 
result  was  found  to  be  so  inconvenient  in  practice  that  he  gradu- 
ally attained  a  right  as  real  as  that  of  the  freeholder,  though, 
owing  to  this  unfortunate  imitation  of  Roman  law,  it  was  pro- 
tected by  personal  actions,  and  was  accounted  a  chattel.^  The 
ordinary  forms  of  creating  or  conveying  these  interests  show  more 
clearly  than  anything  else  the  extreme  technicality  of  the  rule 
which  denied  a  real  right  to  the  lessee  for  years.  There  is  often 
very  little  difference  between  a  lease  for  life  and  a  lease  for  years 
— in  fact,  some  demises  seem  to  be  a  combination  of  the  two.^ 
On  the  other  hand,  because  demises  for  years  were  used  for  a 
variety  of  different  purposes,*'  there  are  great  differences  in  their 
contents.  There  is  little  in  common  between  a  demise  of  a  large 
manor,  with  all  its  rights  and  privileges,"  and  the  demise  of  a 
small  plot  of  land  to  a  tenant  farmer  in  which  the  feudal  rights 
of  the  lord  are  carefully  reserved.^  It  would  hardly  be  going  too 
far  to  say  that  the  rule  which  puts  estates  for  years  into  a  cate- 
gory different  from  that  of  estates  for  life  has  left  little  trace 
upon  conveyancing  in  this  period.  We  may  perhaps  see  some 
trace  of  it  in  the  forms  of  warranty  employed.  Thus,  in  1257  we 
get  an  elaborate  warranty  in  a  lease  for  forty  years  to  the  Abbey 

^  Coke,  Copyholder  §  41,  "  In  disposing  of  it  (the  copyhold)  he  is  bound  to 
observe  the  custome  precisely  in  every  point,  and  can  neither  in  estate  nor  tenure 
bring  in  any  alteration  in  this  respect ;   the  law  accounts  him  custom's  instrument." 

2  Being  an  agent  it  does  not  matter  whether  or  no  he  is  under  disability  to  make 
ordinary  conveyances  when  he  admits.  Coke,  Copyholder,  §  34. 

2  Vol.  ii  205.  ^Ibid  261-262,  354-355. 

5  Madox,  Form.  no.  205,  "  Ad  terminum  vitae  suag  et  duorum  annorum  subse- 
quencium  post  vitam ;  "  cp.  Eynsham  Cart,  i  no.  573  (1350),  grant  for  life  and  one 
year  over. 

8  Above  215. 

"^  Madox,  Form.  nos.  239,  246,  248. 

8  Ibid  no.  237,  *'  Salvo  tamen  eidem  Abbati  Dominio  suo  ut  in  wardis,  releviis, 
escaetis,  herietis,  sectis  curiarum,  attachiamentis,  cum  omnimodis  amerciamentis 
inde  provenientibus ;  "  cp.  nos.  240,  244  for  good  specimens  of  agricultural  leases. 


J 


LANDOWNERS  AND  CONVEYANCES     249 

of  Eynsham;^  and  in  a  charter  of  Edward  III.'s  reign  there  is 
a  clause  in  a  lease  providing  that  neither  the  lessor  nor  any  other 
deriving  title  through  him  will  eject  the  lessee  within  the  term.^ 
But  for  the  most  part  the  clauses  of  warranty  are  similar  in  form 
to  those  contained  in  any  other  demise ;  and  in  other  respects 
their  contents  present  similar  features.  There  are  similar  clauses 
of  distress  and  powers  of  re-entry.^  There  are  the  same  varied 
covenants  and  conditions.  The  forms  employed  also  go  through 
similar  changes.  Thus  we  find  in  early  demises  the  pledge  of 
faith ;  we  find  that  in  the  later  demises  the  parties  are  content 
with  the  ordinary  clause  of  warranty.* 

Until  the  time  of  the  passing  of  the  Statute  of  Frauds 
writing  was  not  required  for  a  lease  for  years.  But  indirectly 
the  parties  were  practically  compelled  to  make  such  leases  by 
deed.  It  was  only  if  the  lease  was  by  deed  that  the  lessee  could 
bring  covenant  against  his  landlord — his  only  remedy  until  the 
rise  of  the  newer  remedies  for  the  protection  of  his  possession ;  ^ 
or  that  lessor  or  lessee  could  enforce  the  mutual  covenants  which 
they  had  entered  into.  But  the  mere  making  of  the  deed  did 
not  suffice  to  give  the  lessee  any  estate  in  the  land.  Till  entry 
he  had  merely  an  inter  esse  termini^  a  right  to  enter.®  It  was  not 
till  he  had  entered  that  he  was  possessed  of  his  term,  so  that 
till  then  he  could  take  no  release/  nor  was  he  entitled  to  use  the 
new  remedies  for  the  protection  of  his  possession  with  which  the 
law  had  provided  him.^  In  this  as  in  other  branches  of  the 
common  law  writing  by  itself  did  not  suffice  to  transfer  posses- 
sion. 

The  Modes  in  which   Landowners  were  able  to  deal  with   their 
Lands  by  means  of  these  Conveyances. 

The  brief  conveyances  of  the  first  two  centuries  after  the 
Conquest  generally  effected  little  else  than  the  actual  creation 
or  transfer  of  some  estate  in  the  land.      It  is  not  till  the  latter 

^  Eynsham,  Cart,  i  no.  313,  "  Ego  vero  Willelmus  vel  heredes  mei  dictum  tene- 
mentum  nuUi  omnino  hominum  Judeo  vel  Christiano  infra  dictum  terminum  dabimus 
vel  vendemus,  invadiabimus  vel  legabimus  preter  dictis  dominis  meis;  "  and  if  any- 
thing be  done  contrary  to  this  undertaking  the  abbey  is  to  have  the  land  in  fee. 

'^  Madox,  Form.  no.  168,  "  Vult  tamen  et  concedit  prasfata  Alicia  quod  si  nee 
praefatus  Prior  nee  successores  sui,  nee  aliquis  alius  per  eos,  illam  ejeeerint  infra 
terminum  suum;"  ep.  Y.B.  10  Ed.  III.  Trin.  pi.  33 — a  lease  for  twelve  years  on 
condition  that  if  the  lessee  is  disturbed  he  shall  have  the  land  in  fee. 

3  Madox,  Form.  cp.  nos.  241,  242  (leases  for  years)  with  nos.  212,  216  (leases 
for  life). 

^Ibid  nos.  223,  229,  232  for  the  pledge  of  faith  and  mutual  oath  of  the  parties. 

^  Above  213. 

6  Litt.  §  58 ;  for  the  position  of  a  person  who  had  an  interesse  termini  see  Bk.  iv 
Pt.  II.  e.  I  §  7. 

'  Bl.  Comm.  ii  324,  ^  Above  214, 


250  THE  LAND  LAW 

half  of  the  thirteenth  century  that  we  get  documents  the  object 
of  which  is  more  ambitious.  In  that  period  of  the  rapid  expan- 
sion of  the  common  law  we  get,  as  we  have  seen,  documents  in 
which  an  owner  purports  to  effect  somewhat  elaborate  settlements 
of  his  property.^  It  is  not  quite  clear  that  an  owner  has  no 
power  to  devise ;  and  we  have  seen  that  we  still  get  instances  of 
anomalous  gifts  which  seem  to  partake  of  the  nature  both  of  the 
settlement  and  the  devise.^  Again,  it  was  possible  to  insert  very 
varied  stipulations  in  a  lease  for  term  of  years ;  and  by  means 
and  as  part  of  such  a  lease  somewhat  complicated  arrangements 
were  sometimes  effected.  Thus  in  1257^  William  de  Submuro 
leased  his  tenement  to  the  Abbey  of  Eynsham  for  forty  years. 
In  return  for  this  lease  the  abbey  redeemed  the  tenement  in 
question  from  the  Jews,  and  gave  to  the  lessor  and  his  wife 
during  the  term,  if  they  should  so  long  live,  three  quarters  of 
corn  and  one  quarter  of  barley  a  year.  If  the  lessor  died  before 
his  wife  she  was  to  have  either  her  dower  of  a  third  or  the  annual 
corn  and  barley,  as  she  might  choose.  If  the  lessor  was  taken 
into  the  service  of  the  monastery  only  half  the  corn  and  barley 
was  to  be  payable  "  ad  opus  uxoris  meae ; "  moreover,  the  lessees 
were  to  acquit  the  lessor  of  the  three  shillings  rent  charge  which 
he  owed  his  mother  as  her  dower,  and  of  two  pence  rent  which 
he  owed  the  prior. 

We  have  seen  that  the  growing  fixity  in  the  principles  of 
the  law  tended  to  set  some  bounds  to  the  freedom  with  which 
individual  owners  of  property  could  make  their  own  law  for 
their  estates.*  Hence  conveyances  tended  to  become  more  fixed 
in  their  form ;  and  it  became  less  possible  to  effect  directly  by  a 
single  conveyance  a  complicated  settlement  of  property.  Settlors 
therefore  made  elaborate  covenants  binding  themselves  to  carry 
out  a  particular  scheme ;  and  afterwards  carried  out  that  scheme 
by  drawing  up  the  several  different  kinds  of  conveyances  which 
were  necessary  to  give  effect  to  it.  Later,  as  the  ingenuity  of 
the  conveyancer  developed  the  art  of  conveyancing,  it  became  in 
some  cases  possible  to  effect  by  a  single  instrument  an  intention 
which  in  earlier  days  several  instruments  were  needed  to  effect. 
I  have  already  noted  one  instance  of  this  process  in  the  develop- 
ment of  the  forms  used  to  effect  a  mortgage.^  It  is  still  more 
noticeable  in  the  forms  used  to  effect  a  family  settlement  A 
very  common  manner  of  effecting  such  a  settlement  in  this  period 
was  by  making  use  of  the  feoffment  and  refeoffment.^     X  being 

1  Above  104. 

2 Above  222;  cp.  Eynsham  Cart,  i  no.  132  {1172-1190),  a  gift  "in  articulo 
mortis." 

3  Ibid  no.  313.  4  Above  105. 

''Above  130  n.  3,  « P.  and  M.  ii  91,  92, 


LANDOWNERS  AND  CONVEYANCES     251 

seised  in  fee  simple  enfeoffs  A,  B,  and  C  that  they  may  convey 
to  him  a  life  estate  or  an  estate  tail  with  the  appropriate  re- 
mainders. In  Edward  I.'s  reign  there  is  an  instance  in  which 
the  parties  seem  to  contemplate  at  least  four  assurances  in  order 
to  effect  this  object.  There  was  first  the  feoffment,  secondly  a 
covenant  to  make  the  refeoffment,  thirdly  the  refeoffment  itself, 
and  fourthly  a  fine  to  be  levied  to  secure  the  whole  transaction.^ 
Towards  the  end  of  this  period  the  same  result  was  secured  by 
two  deeds.  The  feoffor  enfeoffed  several  persons  on  condition 
that  they  made  the  feoffment  required.^  These  later  deeds  illus- 
trate the  point  which  has  already  been  noted,  that  common  law 
conditions  were  capable  of  being  so  used  that  they  could  effect 
some  of  the  objects  of  the  use ;  but  they  show  us  also  one  point 
in  which  the  machinery  of  the  use  possessed  a  decisive  superiority. 
At  least  two  deeds  were  needed  to  give  effect  to  the  conveyance 
by  way  of  conditional  feoffment :  the  whole  transaction  could  be 
effected  by  one  conveyance  by  means  of  the  machinery  of  the 
use.^  If  anything  more  elaborate  was  required  than  a  convey- 
ance to  the  feoffor  with  limitations  over  considerably  more  than 
two  conveyances  were  needed.  There  is  a  very  good  instance  of 
this  in  one  of  the  forms  in  Madox's  collection.*  In  March,  1348, 
Ralph  Lord  Stafford  agreed  with  John  L'Estrange  of  Whitchurch 
that  Fulk,  the  son  of  John,  should  marry  Elizabeth,  the  daughter 
of  Lord  Stafford.  John  was  to  enfeoff  Fulk  and  Elizabeth  and 
the  heirs  of  their  bodies  with  land  to  the  value  of  200  marks  in 
the  counties  of  Shropshire  and  Cheshire,  reversion  to  John  and 
his  heirs ;  and  as  to  the  rest  of  the  lands  and  advowsons  belong- 
ing to  himself  or  his  wife  (excepting  lands  to  the  value  of  ;^ioo), 
John  and  his  wife  agree  to  levy  a  fine  to  certain  persons  and 
their  heirs  to  the  intent  that  they  shall  refeoff  John  with  the 
lands  of  which  he  is  solely  seised  for  his  life,  remainder  to  Fulk 
and  the  heirs  of  his  body  by  Elizabeth,  remainder  to  the  right 
heirs  of  John ;  and  as  to  the  lands  of  which  John  is  jointly  seised 
with  his  wife,  to  the  intent  that  they  shall  levy  a  fine  in  favour 
of  John  and  his  wife  for  their  joint  lives,  remainder  to  Fulk  and 
the  heirs  of  his  body  by  Elizabeth,  remainder  to  the  right  heirs 
of  John.  Lord  Stafford  covenants  to  pay  to  John  ^1,000  at 
certain  specified  dates,  to  secure  which  Lord  Stafford  has  entered 
into  a  recognizance  in  Chancery — this  recognizance  to  be  void  on 
payment,  or  on  failure  by  John  in  the  performance  of  any  of  the 
covenants  to  be  by  him  performed.     John,  on  the  other  hand,  has 

^  Madox,  Form.  no.  165.  2  jbid  nos.  345,  745. 

'  Ibid  no.  749 ;  for  anoUier  point  in  which  the  use  was  superior,  see  vol.  ii  594  n.  5  ; 
Bk.  iv  Pt.  I.  c.  2. 
*No,  170. 


252  THE  LAND  LAW 

entered  into  a  recognizance  in  Chancery  to  repay  to  Lord  Stafford 
500  marks  if  Elizabeth  dies  before  the  age  of  thirteen.  Lord 
Stafford,  at  his  own  costs,  is  to  purchase  a  licence  from  the  king 
permitting  John  to  enfeoff  Fulk  and  Elizabeth  and  the  heirs  of 
their  bodies  with  the  land  to  the  value  of  200  marks.  After  the 
marriage  Fulk  and  Elizabeth  are  to  be  maintained  by  John  till 
Elizabeth  is  thirteen,  and  John  is,  up  to  that  time,  to  have  the 
custody  of  the  land  to  the  value  of  200  marks.  This  illustration 
shows  us  that  it  was  possible  by  various  devices  and  by  many 
different  instruments  to  give  effect  to  an  elaborate  family  settle- 
ment. It  shows  us,  too,  how  great  was  the  simplification 
rendered  possible  by  the  development  of  the  use ;  and  it  there- 
fore gives  us  one  very  strong  reason  for  its  popularity. 

It  will  be  apparent  from  this  illustration  that  the  levying  of  a 
fine  was  generally  a  part  of  these  settlements  of  property.  I 
have  already  said  something  of  the  reasons  for  the  popularity  of 
the  fine.^  In  this  connection  two  other  reasons  must  be  noted 
which  made  the  adoption  of  the  conveyance  by  way  of  fine  a 
prudent  measure  if  any  elaborate  disposition  of  property  was  to 
be  adopted.  In  the  first  place,  settlors  could  by  using  a  fine  effect 
by  one  instrument  objects  to  fulfil  which  at  least  two  instruments 
would  otherwise  have  been  needed.^  But,  in  the  second  place, 
by  far  the  most  important  advantage  in  using  the  fine  consisted 
in  the  fact  that  the  settlor  thereby  obtained  some  sort  of  guaran- 
tee of  the  validity  of  his  dispositions.  The  Year  Books  make  it 
quite  clear  that  during  the  whole  of  this  period  the  court  exer- 
cised a  large  control  over  fines.  As  we  have  seen,  their  capacity 
to  bind  the  interest  of  the  married  woman  probably  springs  from 
this  fact.^  The  court  was,  of  course,  bound  to  see  that  the  king's 
interest  was  not  adversely  affected.'*  But,  quite  apart  from  this 
reason  for  the  exercise  of  their  control,  which  rested  to  some  ex- 
tent upon  grounds  of  public  policy,  they  interfered  with  a  view  to 
the  maintenance  of  legal  principle  and  correct  conveyancing. 
**We  will  never  allow  any  fine  which  we  know  can  be  set  aside," 
said  Spigurnel,  J.,  in  1313-1314;^  and  there  are  many  cases  in 
which  the  court  declined  to  receive  a  fine  which  appeared  to 
them  to  be  irregular,  or  only  received  it  conditionally  upon 
certain  modifications  being  made.^ 

1  Above  240-245.  2  Above  239.  ^  Above  245. 

^Staunford,  Prerogative  f.  31,  "And  note  that  if  the  justices  before  vi'hom  the 
fine  shall  be  levied  be  informed  that  the  lands  be  holden  of  the  king ;  and  that  so  ap- 
pear to  them  by  any  record,  they  will  not  take  the  fine  till  they  have  seen  the  licence 
[to  alienate]  nor  yet  engross  it  till  they  have  received  a  writ  out  of  the  Chancery 
called  Quod  permittat  finem  levari  by  which  they  may  be  fully  certified  of  the  king's 
pleasure ;  "  cp.  above  246  n.  2,  for  the  rule  in  the  case  of  a  recovery. 

5  Eyre  of  Kent  (S.S.)  ii  201. 

^  The  following  are  a  few  instances : — ^Y.BB.  33-35  Ed.  I.  (R.S.)  214-216  (not 
admitted) ;  i,  2  Ed.  II.  (S.S.)  14,  37  (not  admitted) ;  2,  3  Ed.  II.  (S.S.)  4,  5  (questioned 


LANDOWNERS  AND  CONVEYANCES     253 

Hence  the  fact  that  a  certain  set  of  limitations  had  been 
made  by  fine  afforded  at  least  a  prima  facie  guarantee  that 
those  limitations  were  such  as  the  parties  could  legally  make.^ 
Certainly  as  late  as  the  sixteenth  century  the  fact  that  the 
judges  had  received  a  fine  could  be  advanced  as  an  argument 
for  the  validity  of  the  limitations  contained  in  it.^  It  is  im- 
possible to  exaggerate  the  importance  of  this  action  of  the 
judges  both  to  the  parties  to  a  conveyance  and  to  the  art  of 
conveyancing.  The  parties  were  given  the  chance  of  avoiding 
a  fatal  error  before  it  was  too  late.  The  conveyancers  were 
instructed  as  to  the  kind  of  limitations  which  they  could  safely 
employ.  Points  which  in  later  law  were  only  determined  upon 
the  interpretation  of  a  conveyance  already  completed  could  in 
this  period  be  determined  before  the  conveyance  was  finally 
settled.  We  shall  see  that  the  system  of  oral  pleadings  in 
use  at  this  period  admitted  of  amendment  and  adaptation  far 
more  freely  than  the  later  system  of  written  pleadings,  under 
which  the  parties  were  tied  down  to  the  mode  of  presenting 
their  case  which  they  had  selected  before  they  came  into  court^ 
Just  in  the  same  way  the  mediaeval  proceedings  on  a  fine  in- 
structed the  parties  before  it  was  too  late  as  to  the  sort  of 
limitations  which  the  law  allowed,  instead  of  leaving  them  to 
make  their  conveyances  at  their  own  risk.  In  the  earlier  stages 
of  the  development  of  the  law  of  conveyancing,  as  in  the  earlier 
stages  of  the  development  of  the  law  of  pleading,  the  principles 
of  the  law  and  the  forms  apt  to  give  effect  to  those  principles 
were  settled  by  the  legal  profession  under  the  control  of  the 
court.  It  is  only  when  the  principles  have  been  thus  settled 
that  the  legal  profession  can  be  left  to  apply  these  principles 
and  use  these  forms  without  the  need  for  this  constant  and 
continuous  supervision ;  for  it  is  not  till  then  that  the  lawyers, 
having  acquired  a  stock  of  established  common  forms  large 
enough  to  suffice  for  common  cases,  can  dispense  with  the  aid 
of  the  court,  except  in  cases  which  for  one  reason  or  another 
are  uncommon.     It  is  when  this  result  has  been  reached  that 

and  corrected),  97,  147  (notes  as  to  the  manner  in  which  it  should  be  drawn) ;  6  Ed. 
II.  (S.S)  i  118,  129  (not  admitted) ;  12,  13  Ed.  III.  (R.S.)  92,  370  (not  admitted) ;  13, 
14  Ed.  III.  (R.S.)  76  (criticized),  246  (not  admitted  as  drawn),  300  (admission  of  fine 
criticized) ;  14  Ed.  III.  (R.S.)  176  (not  admitted) ;  14,  15  Ed.  III.  (R.S.)  34  (in  part 
refused),  74,  76  (not  admitted),  84  (corrected) ;  15  Ed.  III.  (R.S.)  128  (not  admitted) ; 
16  Ed.  III.  (R.S.)  ii  58  (criticized),  174,  176  (in  part  refused);  20  Ed.  III.  (R.S.)  i 
160  (wording  settled) ;  it  would  seem  from  Plowden's  words  in  Colthirst  v.  Bejushin 
(1551)  Plowden  at  p.  34  that  at  the  beginning  of  the  sixteenth  century  the  court  still 
exercised  some  censorship  over  the  fines  which  it  was  willing  to  admit. 

1  Not  necessarily  an  absolute  guarantee,  cp.  Y.B.  33-35  Ed.  I.  (R.S.)  434-438 ; 
and  it  might,  of  course,  be  shown  that  the  fine  was  for  some  reason  not  duly  levied, 
see  above  240. 

2  (1562)  Willion  v.  Berkley,  Plowden  at  p.  252. 

3  Below  635,  655. 


254  THE  LAND  LAW 

we  begin  to  see  in  the  following  period  the  growth  of  that 
influence  of  the  conveyancers  upon  the  law  to  which  I  have 
already  referred.^ 

MedicBval  Conveyancing  and  the  Development  of  the  Law 

I  have  already  referred  to  some  of  the  cases  in  which  the 
mediaeval  conveyance  illustrates  the  development  of  the  law. 
The  history  of  the  gradual  delimitation  of  the  boundary  between 
the  ecclesiastical  and  the  lay  jurisdictions ;  the  history  of  the 
gradual  disappearance  of  restraints  on  the  freedom  of  alienation, 
whether  in  the  interest  of  the  lord  or  in  the  interest  of  the 
heir ;  the  gradual  commutation  of  labour  services  for  money 
rents ;  the  extraordinary  variety  of  incorporeal  rights  known 
to  the  mediaeval  land  law ;  the  working  of  the  statutes  of 
mortmain  ;  the  part  played  by  the  corody  in  mediaeval  society ; 
the  mode  in  which  services,  professional  or  otherwise,  were 
remunerated  in  this  period  ;  the  manner  in  which  the  common 
law  endeavoured  to  fill  by  means  of  common  law  conditions 
the  wants  which  the  use  was  destined  to  supply  more  adequately ; 
the  gradual  prohibition  of  the  devise  of  land — are,  as  we  have 
seen,  abundantly  illustrated  in  the  charters  and  deeds  which 
we  possess.  We  shall  see  that  these  same  documents  shed  a 
similar  light  upon  other  branches  of  the  law.  Thus,  the 
gradual  manner  in  which  the  position  of  the  married  woman 
in  the  common  law  was  arrived  at ;  ^  the  old  customs  as  to 
the  succession  to  chattels ;  ^  the  large  part  played  by  contracts 
under  seal,  owing  to  the  lack  of  an  effective  method  of  enforcing 
executory  simple  contracts,^  can  equally  well  be  illustrated  from 
the  same  sources.  Here  I  shall  call  attention  to  the  manner 
in  which  these  collections  of  charters  can  be  made  to  illustrate 
the  personal  and  human  side  of  legal  development.  Just  as 
the  reporters  in  the  Year  Books  entertain  us  with  many  side- 
lights and  personal  touches  which  tend  to  disappear  when  law 
reporting  becomes  a  definite  art ;  so  these  mediaeval  conveyances 
often  contain  documents  throwing  much  light  both  on  the 
manners  of  the  day  and  upon  prevalent  legal  conceptions, 
which  we  necessarily  lose  when  the  conveyancer,  having  at 
his  hand  a  printed  store  of  blank  forms,  need  no  longer  ac- 
cumulate precedents  of  actual  legal  transactions. 

Madox  prints  among  his  documents  an  agreement,  probably 
of  Henry  HI.'s  reign,  between  the  Earl  Marshal  and  the  Earl 
of  Gloucester  making  a  truce  for  sixteen  days.^     The  document 

1  Above  218-219.  2  Below  522  seqq.  ^  Below  551-553. 

^  Below  420.  ®  No.  155. 


CONVEYANCING  AND  THE  LAW      255 

takes  the  same  form  as  any  private  convention  between  ordinary 
persons — thereby  illustrating  not  only  the  disturbed  state  of 
the  country,  but  also  the  non-existence  of  a  clear  distinction 
between  public  and  private  law  which  is  characteristic  of  feudalism. 
The  large  prerogative  rights  exercised,  even  in  England,  by 
some  of  the  great  lords  on  the  Marches  of  Wales  are  illustrated 
by  a  pardon  issued  by  William  Montagu,  Count  of  Salisbury 
and  Lord  of  the  Isle  of  Man  and  Denbigh,  to  one  Richard 
Dorel  of  all  manner  of  trespasses,  felonies,  robberies,  arsons, 
and  homicides  committed  within  the  lordship  of  Denbigh.^ 
The  dangers  of  travel  are  illustrated  by  a  document  of  the 
thirteenth  century  in  which  the  contents  of  a  document  are 
certified  because  it  is  dangerous  to  send  the  original.^  A  good 
illustration  both  of  the  manner  in  which  all  kinds  of  rights 
were  dealt  with  as  if  they  were  tangible  property,  and  of  the 
corruption  of  the  church  just  before  the  Reformation,  is  afforded 
by  a  document  of  the  year  1526,^  in  which  the  Priory  of 
Stamford  leases  to  one  Isaac  Mychell  for  two  years  *'  all  the 
comodyteys,  profetts,  and  advantageys  that  by  reyson  or  occasyon 
off  all  indulgences,  pardons,  and  faculteys  be  gyffen  to  the  seyd 
Monastory  by  divers  Holy  Fathers  Popes  of  Rome  ...  so  thet 
yt  shal  be  lefull  to  the  seyd  Isaac  and  to  hys  lafull  assignes  in 
the  Dyocys  of  Salysbury,  Wynchestre,  Bathe,  Excetter,  Saint 
Davyd,  London,  and  Canterbury,  to  declare  the  seyd  Pryvy- 
legeys  and  pardons,  and  to  gedder  the  brotherhed  and  devocion 
of  good  Cristyn  peple  to  hys  best  advantage  and  profe,  dewrynge 
the  seyd  terme  of  ii  yers."  A  document  more  creditable  to  the 
religious  houses  is  a  deed  whereby  the  Abbey  of  Eynsham 
grants  £s  sl  year  to  a  poor  student  at  Oxford.^  The  financial 
straits  to  which  these  houses  were  sometimes  reduced  are  il- 
lustrated by  the  bonds  or  recognizances  into  which  they  entered 
to  repay  sums  borrowed  either  from  the  Jews  or  from  firms  of 
Italian  merchants.^  The  large  freedom  which  at  the  beginning 
of  the  thirteenth  century  was  allowed  in  making  agreements 
is  illustrated  by  a  fine  of  the  year  12 19,  which  at  the  present 
day  would  be  held  to  be  void  for  champerty.®  The  agreement, 
which  was  made  between  Stephen  de  Fretewelle  and  the  abbot 
of  Eynsham,  was  as  follows :  Stephen  released  his  claim  to  a 
quarter  of  a  knight's  fee,  and  in  return  the  abbot  granted  two 
corodies  to  himself  and  his  wife,  promised  to  get  a  marriage 
(without  disparagement)  for  one  of  Stephen's  daughters  within 

1  Madox,  Form.  no.  705  (1352) ;  for  the  Lords  Marchers  see  vol.  i  120-122. 

2  Ibid  no.  12  (1^57).  3  Ibid  no.  251. 
"*  Eynsham  Cart,  i  no.  361  (1268). 

^  Rievaulx  Cart.  409-411  (1280).  •  Eynsham  Cart,  i  no.  186. 


256  THE  LAND  LAW 

the  next  five  years,  gave  him  an  acre  of  land  in  fee,  and  finally 
promised  to  aid  him  in  any  claims  to  land  which  he  could  dis- 
cover, on  the  terms  that  half  the  land  so  recovered  should  belong 
to  the  abbey  in  free  alms ;  Stephen  promising  to  enter  into  no 
compromise  without  the  consent  of  the  abbey.  ^ 

These  are  but  a  few  illustrations  of  the  sidelights  upon  con- 
temporary manners  which  the  conveyances  of  this  period  afford. 
If  we  compare  their  form  with  the  form  of  the  documents  which 
are  designed  either  to  evidence  or  effect  a  conveyance  properly  so- 
called,  they  afford  perhaps  the  most  striking  evidence  of  the  vast 
influence  which  ideas  and  principles  and  machinery,  which  origin- 
ated in  the  first  instance  in  the  land  law,  had  upon  all  branches  of 
the  common  law  of  the  Middle  Ages. 

§  13.  Special  Customs 

The  common  law  had  created  certain  types  of  tenure,  certain 
kinds  of  estate,  certain  modes  of  conveyance,  and  certain  legal 
doctrines  relating  to  land-holding  which  prevailed  almost  uni- 
versally within  the  jurisdiction  of  the  common  law  courts.  If  we 
think  of  the  mass  of  local  customs  which  made  up  the  land  law 
in  the  eleventh  century  we  may  well  admire  the  universality  of  its 
rules.  But  in  spite  of  all  its  efforts  one  or  two  survivals  still 
remained  to  remind  us  of  the  old  order.  We  have  seen  that  the 
large  power  which  landowners  once  had  of  making  what  **  laws  " 
they  pleased  to  govern  the  disposition  of  their  property  had  been 
reduced  to  a  capacity  to  limit  some  one  or  more  of  a  fairly  definite 
number  of  estates,^  just  as  the  large  variety  of  special  customs 
which  regulated  the  tenure  of  land  had  given  place  to  the  fixed 
categories  of  certain  definite  tenures.^  But  just  as  the  old  uncer- 
tainty as  to  the  powers  of  the  landowner  survives  to-day  in  the 
uncertainty  as  to  the  legal  possibility  of  certain  kinds  of  estates,* 
so  the  old  variety  of  customs  which  once  regulated  the  tenure  of 
land  survives  in  certain  special  customs  which  form  exceptions 
to  the  regular  types  of  tenure.  It  is  with  these  special  customs 
that  I  propose  to  deal  in  this  section. 

^  "  Predictus  etiam  abbas  et  successores  sui  ad  expensas  suas  adjuvabunt  pre- 
dictum  Stephanum  ad  deliberandum  et  recuperandum  terras  suas  et  jura  sua  scilicet, 
etc.  [naming  certain  lands],  et  in  omnibus  aliis  locis  ubi  ipse  Stephanus  et  heredes  sui 
ex  parte  sua  vel  abbas  et  successores  sui  ex  parte  sua  poterunt  inquirere  quod  jus 
ipsius  Stephani  jaceat.  Et  cum  abbas  vel  successores  sui  aliquam  predictarum  ter- 
rarum  recuperaverint,  medietas  tocius  illius  conquesti  remanebit  abbatiae  de  Egnesham 
in  liberam  et  perpetuam  elemosinam.  .  .  .  Et  predictus  Stephanus  sive  heredes  .  .  . 
non  placitum  nee  pacem  inibunt  de  aliqua  terra  in  qua  predictus  Stephanus  jus  vendi- 
care  possit  sine  voluntate  consilio  vel  assensu  predicti  abbatis  et  successorum  suorum 
et  ad  eorum  custum." 

2  Above  102-105. 

2  Vol.  ii  201,  260,  348;  above  34-54.  ^  Above  105. 


SrECIAL  CUSTOMS  257 

We  have  seen  that  in  the  twelfth  and  thirteenth  centuries  the 
presence  of  a  masterful  common  law  was  tending  to  reduce  many 
of  these  customs  to  insignificance.  Moreover,  the  action  both  of 
the  king  and  of  the  larger  landowners  was,  in  the  interests  of 
certainty  and  fixity,  tending  to  produce  a  similar  result.  Thus 
King  John,  in  the  third  year  of  his  reign,  granted  to  the  Arch- 
bishop of  Canterbury  and  his  successors  the  power  to  change  land 
held  of  the  see  of  Canterbury  from  gavelkind  to  knight  service  ;  ^ 
and  the  fact  that  the  king  possessed  this  power  himself  and  could 
grant  it  to  others  was  recognized  by  the  courts.^  Simon  de 
Montfort  in  1255  granted  to  the  burgesses  of  Leicester  that  their 
lands  should  for  the  future  descend  to  the  eldest,  and  not,  as 
heretofore,  to  the  youngest  son.^  Similarly,  it  was  held  that,  in 
the  event  of  lands  subject  to  a  special  custom  escheating  or 
forfeiting  to  the  lord  for  any  cause,  the  special  custom  ceased  to 
apply  when  the  lands  were  in  the  hands  of  the  lord."^  It  is  clear 
that  such  principles  as  these  make  for  the  extinction  of  special 
customs.  But  in  the  course  of  the  fourteenth  century  the 
independent  position  of  a  law  which  could  only  be  changed  by 
Parliament,  and  the  growing  fixity  of  the  land  law,  caused  a 
change  in  the  legal  point  of  view. 

The  beginnings  of  this  change  can  be  seen  in  the  arguments 
used  in  a  case  which  was  heard  in  the  Eyre  of  Kent  of  1313-1314.^ 
The  point  at  issue  was  the  capacity  of  the  lord  to  change  by  his 
deed,  which  had  been  confirmed  by  the  crown,  the  tenure  of  land 
from  gavelkind  to  knight  service.  It  is  clear  that  the  opinion 
was  gaining  ground  that,  whatever  might  be  the  power  of  the  lord 
over  land  held  by  villein  tenure,  or  by  tenure  in  ancient  demesne, 
such  a  change  was  not  possible  in  the  case  of  land  held  by  a  custom 
like  gavelkind  which,  being  a  free  tenure,  was  more  intimately 
connected  with  the  common  law.*'     To  permit  such  a  change 

^  See  the  charter  in  Robinson,  Gavelkind  (5th  ed.)  56 ;  cp.  ibid  18  for  the  petition 
of  the  monks  of  Canterbury  to  Henry  II.,  in  which  it  is  stated  that  Lanfranc,  on  the 
orders  of  the  king,  turned  his  threngs  and  drengs  into  knights  for  the  defence  of  the 
realm. 

2  Ibid  57-61.  3  See  the  charter  printed  ibid  66. 

^  In  a  case  before  the  Justices  in  Eyre,  Itin.  Kane.  21  Ed.  I.  r.  53  (Berewicke), 
cited  Robinson  63,  64,  the  county  said  that  gavelkind  could  be  turned  into  frank  fee 
by  the  grant  of  the  king  or  archbishop,  by  escheat  to  the  lord,  and,  "  when  the  lands 
are  given  back  into  the  hands  of  the  lord,  the  services  being  too  heavy  for  the  tenant, 
without  any  expectation  of  having  them  again,"  but  that  in  this  case  the  land  would 
be  still  gavelkind  if  the  lord  restored  the  land  on  any  conditions. 

5  The  Eyre  of  Kent  (S.S.)  iii  153-159. 

"  "  Spigurnel,  jf. — I  put  the  case  that  a  lord  of  ancient  demesne  releases  the  services 
due  from  the  socman,  and  grants  and  confirms  the  tenements  to  him  to  hold  of  him, 
the  lord,  by  knight  service.  The  nature  of  the  soil  is  changed,  for  then  it  is  frank  fee. 
Friskeney. — Again  the  case  is  not  a  parallel  one,  for  socmen  are  not  so  near  the 
common  law  as  those  who  hold  by  gavelkind  tenure ;  for  these  latter  can  bring  writs 
of  novel  disseisin  and  all  other  writs  under  the  common  law,  etc.,  and  so  it  takes  more 

VOL.   HI.— 17 


258  THE  LAND  LAW 

would  be  in  effect  to  change  the  common  law ;  and  it  was  prob- 
ably this  reason  which  induced  the  judges  in  this  case  to  doubt 
even  the  king's  power  to  make  such  a  change.^  Moreover,  there 
are  indications  of  a  feeling  that,  if  such  changes  were  permitted, 
they  might  operate  unfairly  to  other  persons,  whether  lords  or 
tenants,  who  had  interests  in  the  land.^  But  it  is  clear  that  both 
these  lines  of  reasoning  logically  lead  to  the  conclusion  that  none 
of  these  customs  are  changeable  at  the  will  of  king,  lord,  or  tenant. 
The  customs  which  regulated  the  rights  of  those  who  held  by 
villein  tenure  or  by  the  tenure  of  ancient  demesne  were  fast 
attaining  fixity,  and  were  coming  to  be  regarded  as  a  part  of  the 
common  law.^  Thus  it  is  not  surprising  to  find  that  in  1376* 
very  considerable  doubts  were  entertained  as  to  the  power  of  a 
lord  to  change  the  tenure  of  lands  held  by  the  tenure  of  ancient 
demesne.  It  was  very  strongly  contended  that,  though  a  deed 
which  purported  to  effect  this  change  might  be  operative  as 
between  the  parties  to  it,  it  could  not  affect  others,  and  could 
not  therefore  change  the  nature  of  the  tenure.^  This  particular 
contention  did  not  wholly  prevail  in  the  case  of  lands  held 
either  by  the  tenure  of  ancient  demesne  or  by  copyhold  tenure ; 
for  in  both  cases  the  land  could  be  enfranchised  by  the  lord.^ 
But,  subject  to  this  exception,  this  view  was  in  substance 
adopted.  These  customs  were  a  part  of  the  common  law. 
On  the  one  hand,  they  could  not  be  created  de  novo  even  by  the 

to  change  the  nature  of  soil  held  in  gavelkind  than  of  soil  held  in  socage,"  ibid  155  ; 
cf.  Y.B.  5  Ed.  II.  (S.S.)  (13 12)  16  where  Bereford,  C.J.,  held  that  "  though  that  which 
is  the  king's  ancient  demesne  can  be  turned  into  frank  fee,  yet  that  which  is  frank  fee 
cannot  be  turned  into  ancient  demesne." 

1  The  case  was  ultimately  adjourned  into  the  Common  Bench,  and  the  king  wrote 
to  the  judges  informing  them  of  his  right  to  make  such  a  change,  citing  the  charter 
summarized  at  p.  xxxi  n.  i  of  the  Y.B. ;  but  no  judgment  was  given ;  as  Mr.  Bolland 
says,  the  inference  is  that  the  judges  "  could  not  see  their  way  to  accept  the  theory  set 
out  in  the  king's  letter,"  the  Eyre  of  Kent  iii  xxxi. 

2  See  the  arguments  of  Malmerthorpe,  Passeley,  and  Ingham  set  out  ibid  at 

p.  157- 

3  Vol.  ii  381,  522  ;  above  201 ;  "  that  court  (a  court  of  ancient  demesne)  is  as  much 
governed  by  its  custom,  and  it  is  their  law  there,  as  this  court  is  governed  by  common 
law ;  .  .  .  and  in  like  manner  their  customs  are  as  well  defined  between  them  for  the 
purpose  of  giving  judgment  as  the  common  law  is  for  a  Justice  to  know  it,"  Y.B.  20 
Ed.  III.  (R.S.)  ii  438  per  Grene  arg, 

4  Y.B.  49  Ed.  III.  Hil.pl.  12. 

^  '*  Kirton. — II  poit  estre  que  per  usage  deins  un  certain  manor  d'auncient  demesne, 
que  le  fitz  puisne  serra  enheritable  de  la  terre,  que  est  tenu  per  customes  de  manor,  et 
tallages,  et  autres  bondes  services  ;  jeo  die  que  mesque  le  seignior  de  manor  release  al 
tenant  tout  son  droit,  issint  que  il  ad  perdu  son  seigniory  pur  tant  ...  jeo  die  que  per 
tant  la  nature  de  la  tenancy  n'est  my  chaunge  eiant  regarde  al  inheritance  de  la  tenancy 
devers  I'heire.  .  .  .  Persay. — Si  la  terre  soit  tenus  de  son  seignior  d'antiquity,  issint 
que  le  seigniory  en  sa  main  fuit  frank  fee,  il  poet  estre  per  son  fait  la  nature  de  tenancy 
serroit  change  devers  le  seignior  :  mes  nemy  devers  estranges  person,  que  ne  claimont 
riens  de  Testate  le  seignior,  come  en  nostre  cas  nous  sumus  ore ;  "  for  other  applications 
of  this  principle  see  above  41,  64-65,  212  ;  below  259,  264. 

^  Viner,  Ab.  Ancient  Demesne  I  and  K. 


SPECIAL  CUSTOMS  259 

crown ;  ^  on  the  other  hand,  they  could  not  be  altered  by  the 
caprice  of  landowners,^  or  by  the  accidents  of  such  events  as 
escheat  and  forfeiture.^  These  customs  were  inseparably  annexed 
to  the  land,  and  nothing  short  of  an  Act  of  the  legislature  could 
change  them.* 

Thus  it  has  happened  that  certain  of  these  special  customs, 
dating  back  to  the  days  before  the  common  law,  have  survived 
until  modern  times.  I  shall  deal  here  with  three  of  the  most 
important — Gavelkind,  Tenure  in  Ancient  Demesne,  and  certain 
of  the  Borough  Customs. 

Gavelkind  J" 

There  have  been  many  suggested  derivations  of  the  term 
"gavelkind."^  The  true  derivation  connects  it  with  the  old 
English  gafol,  or  gavel^  which  means  rent  or  a  customary  per- 
formance of  agricultural  services^  "The  tenant  from  whom 
such  services  were  due  was  called  a  gavel  man  ;  and  *  gavelkind  ' 
being  taken  as  a  compound  of  this  word  *  gavel'  and  'gekynde,' 
which  is  nature,  kind,  quality  (usually  appearing  under  the  form 
*  gafol  cund  '  in  the  most  ancient  records),  the  proper  signification 
of  the  term  will  be  land  of  the  kind  or  nature  which  yielded  rent, 
or  '  censual  land  '  ...  as  distinguished  from  knight  service  land, 
which  being  held  by  free  military  service  yielded  no  'cens'  or 
rent  in  money,  provision,  or  works."  ^  No  doubt  in  early  days 
the  term  "  gavelkind  "  denoted  land  held  by  this  particular  ten- 
ure ;  ^  and  much  land  held  by  this  tenure  became  the  free  socage 
tenure  of  later  law.  But  in  the  later  common  law  the  meaning 
of  the  term  has  been  altered.  It  has  come  to  be  used  generally 
as  the  name  for  the  custom  by  which  lands  in  Kent  are,  in  the 
absence  of  proof  to  the  contrary,  presumed  to  be  affected ;  ^  and 
sometimes,  in  later  law,  to  express  the  fact  that  lands,  whether 
in  Kent  or  elsewhere  are  divided  between  male  heirs  on  the  death 

1  Y.B.  37  Hy.  VI,  Trin.  pi.  3  Littleton  says,  *'  Le  Roi  ne  poet  faire  ne  granter 
Ancien  demesne  a  ce  jour  .  .  .  le  Roy  ne  poet  faire  terres  devisables  a  ce  jour,  et 
ensement  que  le  puisne  fitz  sera  inheritable  sicome  il  est  la  deins  la  dit  ville,  et  uncore 
le  Roy  ne  poet  granter  ce  a  cest  jour  ;  "  Coke,  Copyholder  §  31 ;  above  258. 

2Y.B.  49  Ed.  III.  Hil.  pi.  12  cited  above  258  n.  5. 

3  Y.B.  14  Hy.  IV.  Mich.  pi.  6  (p.  7)  per  Hankford ;  in  Y.B.  11  Hy.  VII.  Trin.  pi.  6 
this  is  taken  as  settled  law. 

4  "  If  gavelkind  lands  escheat  or  come  to  the  crown  by  attainder  or  dissolution  of 
monasteries,  and  be  granted  to  be  held  by  knight  service  or  per  haroniam — the  cus- 
tomary descent  is  not  changed  ;  neither  can  it  be  but  by  Act  of  Parliament ;  for  it  is 
a  custom  fixed  to  the  land,"  Hale,  H.C.L.  312. 

^  The  most  complete  modern  account  will  be  found  in  Robinson  on  Gavelkind, 
5th  edition,  1897,  by  C.  I.  Elton  and  H.  J.  H.  Mackay. 

*»  Robinson  i-ii.  "^  Ibid  6. 

8  Ibid  7 — before  the  statute  of  Quia  Emptores  we  often  get  charters  in  which  the 
land  is  granted  "tenendum  in  gavelkende." 

3  Robinson  8. 


260  THE  LAND  LAW 

of  the  ancestor.^  Here  I  shall  use  the  term  gavelkind  in  the 
former  sense.  We  must  consider  in  the  first  place  the  Kentish 
Custumal  ^  and  its  contents,  and  in  the  second  place  the  reasons 
for  the  existence  of  this  peculiar  set  of  customs  in  Kent. 

(i)  The  Kentish  Custumal  and  its  contents. 

"  These  are  the  usages  and  customs,"  so  runs  the  Kentish 
Custumal,  "the  which  the  commonalty  of  Kent  claimeth  to 
have  in  the  tenements  of  gavelkinde,  and  in  the  men  of  gavel- 
kinde,  allowed  in  Eire  before  John  of  Berwike  and  his  Com- 
panions, Justices  in  Eire  in  Kent,  the  twenty-first  year  of  the 
reign  of  King  Edward  the  son  of  King  Henry."  The  more  im- 
portant of  these  privileges  were  the  following :  All  Kentish  men 
were  born  free.  From  Edward  I.'s  time  onward  the  fact  that  a 
man's  father  was  born  in  Kent  was  a  sufficient  answer  to  a 
claim  to  him  as  a  villein;^  and  from  Henry  VI. 's  reign  it  was  a 
sufficient  answer  to  show  that  the  person  claimed  was  born  in 
Kent*  They  might  freely  sell  or  give  their  lands  and  sue  for 
the  same  in  the  king's  courts,  even  as  against  their  lords.  There 
was  no  escheat  for  felony  nor  was  the  king  entitled  to  year,  day, 
and  waste — **  the  father  to  the  bough,  the  son  to  the  plough  ;  "  ^ 
nor  was  the  felon's  wife  deprived  of  her  customary  dower.  But 
neither  rule  applied  to  treason,  or  to  the  case  where  a  man  fled 
for  suspicion  of  felony  or  where  he  was  outlawed  or  abjured  the 
realm ;  ^  nor  were  the  goods  of  the  felon  exempt  from  forfeiture. 

1  Bracton  e.g.  says,  f.  374a,  "  Sicut  in  gavelkind,  vel  alibi  ubi  terra  est  partibilis 
ratione  terrae ;  "  it  is  pointed  out,  Robinson  10,  11,  that  in  the  mediaeval  period  the 
term  is  not  applied  to  all  land  which  is  partible  amongst  heirs,  cp.  Y.BB.  2  Ed.  III. 
Trin.  pi.  5,  and  5  Ed.  III.  Mich.  pi.  107  there  cited ;  but  in  later  law  it  is  used  of 
all  partible  land,  e.g.  in  a  Private  Act  of  21  James  I.  c.  6,  and  in  Wiseman  v.  Cotton 
(1664)  I  Sid.  135,  137.  As  Sir  Paul  Vinogradoff  has  pointed  out  (English  Society 
93,  94),  in  Kent  the  custom  may  be  regarded  as  "  county  law,"  whereas  elsewhere  it 
is  rather  the  product  of  "  manorial  usage." 

2  For  the  texts  of  the  custumal  see  Robinson  222-228.  It  is  to  be  found  in  Tottell's 
edition  of  Magna  Carta  and  the  statutes  published  in  1556 ;  Coke,  on  that  account, 
gives  it  the  title  of  the  Statutum  de  Consuetudinibus  Kanciae.  It  is  printed  in  the 
Record  Commission's  edition  of  the  Statutes  i  223-225  among  the  statutes  of  un- 
certain date ;  for  these  statutes  see  vol.  ii  App.  III. ;  we  have  no  official  text,  but  all 
the  rules  are  authenticated  by  early  records,  P.  and  M.  ii  270  n.  i. 

^Fitz.,  Ab.  Villenage  pi.  46,  "Sans  pluis  enquery  fuit  agarde  que  elle  suit 
fraunke,  etc.,  pur  ceo  que  il  n'ad  villein  en  Kent ;  "  but  this  custom  was  not  primaeval, 
as  there  had  been  villeins  in  Kent  since  the  Conquest,  Robinson,  op.  cit.  224-225. 

^Y.B.  7  Hy.  VI.  Pasch.  pi.  27— Candish.—''  En  le  County  de  Kent  ils  ont  tiel 
custome,  que  chescun  n^  deins  le  County,  nient  contristant  que  son  pere  suit  nief. 
Tissue  sera  frank."     Martin. — "  Ceo  est  per  Parliament,  et  un  Statut  eut  fait." 

5  For  other  instances  of  a  similar  custom  in  Gloucester  and  Hereford  see 
Robinson  177,  178.  The  custom  is  again  so  stated  in  the  De  Prasrogativa  Regis — 
perhaps  to  show  specifically  that  the  king's  right  to  year,  day,  and  waste  was  barred 
as  well  as  the  lord's  escheat.  It  appears  that  according  to  the  oldest  versions  the 
son  goes  to  the  '•  lowe  "  or  hearth,  P.  and  M.  i  166  n.  2 ;  for  these  rights  of  king 
and  lord  see  above  68-70. 

8  The  Eyre  of  Kent  (S.S.)  193. 


SPECIAL  CUSTOMS  261 

The  wife  was  entitled  to  a  half  of  the  land  of  which  her  husband 
had  been  solely  seised  during  the  marriage  for  her  life,  or  so  long 
as  she  remained  chaste  and  unmarried.^  We  have  mention  of 
the  hue  and  cry — a  curious  archaic  procedure  to  be  followed  to 
recover  the  land  if  the  conditions  to  be  observed  by  the  widow 
were  broken.^  The  husband  was  entitled,  on  the  death  of  his 
wife,  to  the  half  of  the  lands  which  she  held  for  an  estate  of  in- 
heritance, for  his  life  or  till  he  married  again,  whether  or  no  issue 
was  born  of  the  marriage.^  Upon  the  death  of  the  ancestor  the 
land  was  divided  among  the  sons,  and  the  youngest  was  to  have 
the  homestead.  Here  again  we  have  mention  of  a  curious  pro- 
cedure by  which  this  partition  was  effected.^  A  child  under 
fifteen  was  under  a  guardian  who  must  be  assigned  by  the  lord ; 
but  the  guardian  was  appointed  from  among  those  relatives  of  the 
child  who  could  not  inherit  the  land,  and  he  must  account  for 
the  profits.^  At  fifteen  the  child  could  alienate  his  land — a 
reminiscence  of  the  days  when  the  age  of  majority  varied  ac- 
cording to  the  circumstances  of  different  classes  of  society.*  In 
the  case  of  personalty  the  old  rules  which  gave  one  third  to 
the  widow,  one  third  to  the  children,  and  allowed  the  deceased 
to  dispose  of  the  remaining  third,  were  followed.  We  shall  see 
that  there  is  some  reason  to  suppose  that  these  rules  formed  at 
one  time  the  common  law  of  the  land.'^  Besides,  there  were 
many  less  important  privileges  in  matters  of  procedure,  amongst 
which  may  be  mentioned  the  curious  rule  observed  in  the  case  of 
the  tenant  who  wished  to  recover  land  which  his  landlord  had 
taken  for  non-payment  of  rent.     The  custumal  embodies  an  old 

^  Robinson  139,  157 ;  early  records  make  it  quite  clear  that  as  at  common  law 
alienation  by  the  husband  would  not  bar  the  wife's  claim  to  dower,  ibid  148. 

2  Ibid  143,  144  ;  in  a  case  tried  coram  rege  17  Ed.  III.  Trin.  rot.  32  Kane,  (there 
cited)  the  jury  found  "  that  a  widow  would  lose  her  dower  of  gavelkind  land,  if  she 
married  again  or  if  she  bore  a  child  in  her  widowhood,  wherever  in  the  County  the 
child  might  be  heard  to  cry,  provided  always  that  the  heir  or  reversioner  next  in 
succession  came  in  person  .  .  .  and  raised  the  Hue  and  Cry  immediately  after  the 
birth." 

3  Ibid  128-138. 

^  Ibid  116,  117.     The  old  custom  was  obsolete  by  Elizabeth's  reign. 

•*  Ibid  158-160.  It  appears  that  the  lord  could  distrain  the  guardian  to  account 
under  the  old  law,  and,  according  to  Lambard,  might  even  have  been  held  liable  to 
make  good  deficits  in  the  account.  In  the  Eyre  of  Kent,  however,  of  1313-1314,  iii 
43,  it  was  said  by  the  assize  in  one  case  that  the  lord  had  the  guardianship,  but  that 
the  nearest  in  blood  could  acquire  it  from  the  lord  at  his  own  cost ;  the  person  so 
acquiring  it  must  render  an  account,  and  the  sum  which  he  paid  for  the  wardship  was 
allowed  in  the  account ;  moreover,  it  was  said  that  he  could  assign  over  his  guardian- 
ship to  another. 

^  Vol.  ii  98  ;  here  the  custom  has  been  strictly  construed,  as  it  is  only  a 
feoffment  which  can  be  made  by  a  child  of  fifteen,  Robinson  166 ;  and  c.p.  In  re 
Maskell  and  Goldfinch's  Contract  [1895]  2  Ch.  525  ;  it  would  appear  from  Y.BB. 
II  Hy.  IV.  Mich.  pi.  61,  and  21  Ed.  IV.  Pasch.  pi.  10  that  this  restrictive  construc- 
tion was  applied  at  an  early  date. 

'  Vol.  ii  94  ;  below  550-554. 


262  THE  LAND  LAW 

Saxon  proverb  which,  while  seeming  to  give  the  right  of  re- 
covery, really  denies  it  by  requiring  an  impossible  condition  to 
be  performed  by  the  tenant^ 

These  are  some  of  the  more  salient  features  of  the  Lex 
Kentice.  No  doubt  the  greater  part  of  Kent  was  subject  to  it ; 
but  it  did  not  apply  to  lands  held  anciently  by  military  service, 
grand  serjeanty,  or  frankalmoin.^  The  exceptions,  however, 
tended  to  diminish,  owing  to  the  fact  that  the  presumption  was 
always  in  favour  of  the  application  of  the  custom,  so  that  much 
land,  not  really  subject  to  the  custom,  became  subject  to  it 
from  lack  of  evidence  to  the  contrary.^  The  same  cause  has 
often  rendered  almost  nugatory  many  of  the  disga veiling  Acts 
passed  from  time  to  time  by  the  legislature.* 

(2)  The  reasons  for  the  continued  existence  of  these  Kentish 
customs. 

If  we  look  at  these  customs  we  shall  see  many  things  which 
may  remind  us  of  the  days  before  the  royal  courts  drew  the  bold 
lines  of  the  mediaeval  land  law,  and  substituted  a  uniform  com- 
mon law  for  many  similar  yet  divergent  local  customs.  The 
partibility  of  the  land  among  all  the  sons,  the  old  rules  govern- 
ing that  partition,  the  allotment  of  the  hearth  to  the  younger  son, 
the  absence  of  escheat  for  felony,  the  rule  as  to  the  age  at  which 
a  son  can  make  a  feoffment,  the  old  procedure  by  which  the 
landlord  could  recover  the  land  if  the  rent  were  not  paid,  the 
quaint  rules  as  to  the  penalty  which  the  tenant  must  pay  who 
wished  to  recover  land  thus  forfeited — all  are  archaic  traits  and 
genuine  survivals  from  the  days  before  the  common  law.  But 
why  did  they  survive  in  Kent  ?  In  Domesday  Book  there  is  no 
sign  that  Kent  will  develop  a  law  of  its  own ;  ^  and  yet  such  a 

^  Just  as  there  were  differences  in  the  procedure  in  real  actions  in  the  case  of 
gavelkind  lands  which  date  from  Henry  II I. 's  charter  to  the  county  (Robinson  206  ; 
the  Eyre  of  Kent  (S.S.)  iii  209)  so,  instead  of  the  ordinary  writ  of  cessavit,  there  was 
a  special  action  of  gavelet  (Robinson  194  seqq.) ;  if  the  landlord  had  seized  the  land  in 
this  action,  and  the  tenant  desired  to  recover  it,  "  Let  him  nine  times  pay  and  nine 
times  repay  the  arrears  and  five  pounds  for  his  wergild  before  he  shall  have  his  tene- 
ment again ;  "  cp.  P.  and  M.  ii  269  n.  4,  '*  It  is  one  of  those  humorous  rules  of  folk- 
law which,  instead  of  telling  a  man  that  he  cannot  have  what  he  wants,  tells  him 
that  he  may  have  it  if  he  will  perform  an  impossible  condition  ;  "  cp.  Robinson  201 
for  a  similar  case  in  connection  with  the  castle  guard  rents  by  which  estates  were 
held  of  Rochester  Castle  ;  it  was  said  that  if  such  rent  fell  into  arrear  it  was  liable 
to  be  doubled  and  multiplied  at  each  return  of  the  tide  in  the  Medway  ;  see  on  the 
whole  subject  Borough  Customs  (S.S.)  ii  clvii-clix,  appendix  on  the  sursise  of  rent. 

2  Robinson  49,  50,  74.  ^  Ibid  44. 

^  For  these  Acts  see  ibid  67-72  ;  at  p.  69  it  is  said,  "  None  of  the  Disgavelling 
Acts  contained  any  schedule  of  lands  affected,  which  have  therefore  to  be  ascertained 
by  the  help  of  licences  of  alienation,  inquisitions  post  mortem,  royal  grants,  wills, 
private  Acts,  and  such  like  records  ;  and  since  it  is  difficult  to  procure  evidence  of 
this  kind  with  respect  to  small  detached  parcels,  it  is  found  in  many  cases  that  proof 
of  identity  is  gone,  and  that  by  force  of  the  presumption  .  .  .  the  lands  have  returned 
into  the  custom  of  gavelkind. " 

°  P.  and  M.  ii  270 ;  Vinogradoff,  Manor  318. 


SPECIAL  CUSTOMS  263 

Lex  Kantice  is  developed  between  the  period  of  the  Conquest  and 
Edward  I.'s  reign.  There  being  little  doubt  but  that  the  con- 
tents of  the  custumal  are  genuine  survivals,  the  thing  which  it  is 
difficult  to  explain  is,  not  the  provisions  of  the  custumal,  but  the 
fact  of  their  survival.  For  that  explanation  we  must  look,  as 
Maitland  points  out,  not  so  much  to  legal  as  to  economic  and 
social  history.^  The  best  explanation  seems  to  be  found  in  the 
fact  that  the  geographical  position  of  Kent  gave  to  it  social  and 
economic  advantages  which  were  not  enjoyed  by  the  rest  of  the 
country.  It  lay  on  the  great  highroads  between  England  and 
the  Continent ;  and  these  highroads  are  ''  the  arteries  along  which 
flows  money,  the  most  destructive  solvent  of  seigneurial  power." 
The  lords  of  Kentish  land  preferred  money  to  feudal  rights ;  and 
the  inhabitants  were  prosperous  enough  to  pay  it.  Dwelling 
between  the  seaport  towns  and  London,  they  had  a  choice  of 
pursuits  open  to  them ;  and  those  who  engaged  in  agriculture 
found  that  agriculture  paid  better  than  in  districts  more  remote 
from  the  great  world  of  politics  and  trade. *^  For  these 
reasons  "  Kent  seems  to  have  proceeded  from  the  tribal  system 
and  the  independent  village  system  directly  towards  commercial 
husbandry,  without  going  through  the  intermediate  stage  of 
manorial  husbandry  which  was  common  to  the  rest  of  England."  ^ 
The  inhabitants  were  able,  in  fact,  to  retain  old  customs  and  old 
rules  because  the  new  rules  and  classifications  of  the  common 
law  were  unsuited  to  the  peculiar  conditions  of  Kent. 

The  men  of  Kent  were  proud  of  their  peculiar  customs  and 
their  peculiar  law,  and,  inverting  cause  and  effect,  they  regarded 
them  as  the  cause  of  the  prosperity  of  the  county.  In  course  of 
time  additions  were  made  to  the  custumal  for  which  there  was 
no  warrant  in  early  law ;  *  and,  on  the  other  hand,  changes  both 
in  substantive  and  adjective  law  rendered  other  parts  of  the 
custumal  absolete.  But  much  of  the  law  of  Kent  remains,  and 
still  forms  a  unique  survival  in  the  law  of  land  held  by  free  tenure 
of  certain  of  the  customary  rules  which  prevailed  before  the 
birth  of  the  common  law. 

Ancient  Demesne,^ 

The  ancient  demesne  of  the  crown  was  the  land  which 
belonged  to  the  crown  in  1066 — on  the  day  when  King  Edward 

1  P.  and  M.  i  i66.  ^  Ibid  i66,  167 ;  ii  269,  270. 

'  Vinogradoff,  Manor  318;  P.  and  M.  ii  270. 

^  E.g.  the  custom  to  devise  land,  Robinson  185  seqq. ;  for  an  attempt  to  prove 
that  no  Englishry  vi^as  ever  presented  in  Kent,  which  deservedly  failed,  see  the  Eyre 
of  Kent  (S.S.)  i  xxxv-vii,  12,  19-20. 

5  Vinogradoff,  Villeinage  89-126;  P.  and  M.  i  366-389;  Blackstone,  Law  Tracts, 
♦'  Considerations  on  the  question  whether  tenants  by  copy  of  the  Court  Roll  accord- 
ing to  the  custom  of  the  manor,  though  not  at  the  will  of  the  lord,  are  freeholders 
qualified  to  vote  in  elections  for  knights  of  the  shire  "  (1758). 


264  THE  LAND  LAW 

was  alive  and  dead.  To  ascertain  whether  or  no  a  given  piece 
of  land  was  ancient  demesne,  Domesday  Book  was  the  only 
evidence  admitted ;  and  its  evidence  was  conclusive.^  The  king 
was  frequently  acquiring  other  land  by  escheat,  forfeiture,  or 
other  titles  ;  but  this  land  was  not  ancient  demesne.  Conversely, 
when  the  king  gave  away  parts  of  his  ancient  demesne,  the  land 
did  not  on  that  account  cease  to  be  subject  to  the  rules  peculiar 
to  it  when  it  was  part  of  the  demesnes  of  the  crown.  This,  as 
Maitland  points  out,^  is  simply  an  application  of  the  general  rule 
that  '^the  escheat  of  a  mesne  lordship  should  leave  unaltered 
the  rights  and  duties  of  those  who  are  the  subjects  of  that  lord- 
ship, and  if  a  lord  puts  a  mesne  between  himself  and  his  tenant 
that  tenant  should  neither  gain  nor  lose  by  the  change." 

In  the  days  when  franchises  and  immunities  abounded  the 
king  naturally  enough  acquired  for  his  estates  a  liberal  measure 
of  these  advantages  desired  by  all  landowners.^  Thus,  just  as  on 
the  manors  of  many  another  franchise  holder,  so  on  these  manors 
of  the  ancient  demesne,  there  is  much  which  is  exceptional 
from  the  point  of  view  of  public  law.  "The  king's  manor  is 
treated  as  a  franchise  isolated  from  the  surrounding  hundred  or 
shire,  its  tenants  are  not  bound  to  attend  the  county  court  or  the 
hundred  moot,  they  are  not  assessed  with  the  rest  for  danegeld 
or  common  amercements  or  the  murder  fine,  they  are  exempted 
from  the  jurisdiction  of  the  sheriff,  and  do  not  serve  on  juries  or 
assizes  before  the  king's  justices ;  they  are  free  from  toll  in  all 
markets  and  custom  houses.  Last,  but  not  least,  they  do  not  get 
taxed  with  the  country  at  large,  and  for  this  reason  they  have 
originally  no  representatives  in  Parliament.  .  .  .  On  the  other 
hand,  they  are  liable  to  be  tallaged  by  the  king  without  consent 
of  Parliament  by  virtue  of  his  private  right  as  opposed  to  his 
political  right."  * 

It  is  not  these  exceptional  rules  of  public  law  which  make 
the  manors  of  the  ancient  demesne  important  in  the  history  of 
the  land  law.  It  is  the  fact  that  there  exists  upon  them  a  peculiar 
species  of  tenure.  There  were  on  these  manors  tenants  free  and 
unfree,  holding  their  land  upon  the  ordinary  tenures  known  to 
the  common  law.     But  in  addition  there  were  found  on  it  a  third 

1  Vinogradoff  go ;  Y.BB.  33-35  Ed.  I.  (R.S.)  308 ;  2,  3  Ed.  II.  (S.S.)  60,  61; 
II,  12  Ed.  III.  (R.S.)  164;  49  Ed.  III.  Trin.  pi.  8;  but  the  allegation  that  certain 
tenements  in  a  manor  of  the  ancient  demesne  were  at  common  law  might  be  tried 
by  the  country,  9  Ass.  pi.  9;  or  semble  by  specialty,  Y.B.  16  Ed.  III.  (R.S.)  ii  562  per 
Thorpe  arg. ;  as  Maitland  points  out,  the  rule  that  Domesday  Book  is  the  only 
evidence  may  be  no  later  than  the  fourteenth  century,  P.  and  M.  i  382  n,  i. 

2  P.  and  M.  i  367,  368 ;  Y.B.  11,  12  Ed.  III.  (R.S.)  340,  342 ;  for  the  distinction 
between  lands  held  ut  de  corona  and  ut  de  honore,  which  is  one  instance  of  this  principle, 
see  above  41,  64-65,  258  n.  5. 

3  Vol.  i  91.  ^  Vinogradoff  92  and  references  there  cited. 


SPECIAL  CUSTOMS  265 

class  of  tenants  who  do  not  distinctly  belong  to  the  class  either 
of  the  free  or  of  the  unfree  tenants.  We  learn  from  Bracton  that 
there  were  on  the  ancient  demesne  of  the  crown,  besides  the 
ordinary  freeholders  and  the  ordinary  villeins,  a  class  of  villein 
socmen  ;  a  class,  that  is,  holding  in  privileged  villeinage  by  servile 
yet  certain  services,  who  could  not  be  ousted  from  their  land  so 
long  as  they  performed  these  services.^  All  three  classes  of 
tenants  were  affected  by  many  of  the  peculiar  rules  of  public  law 
which  applied  to  the  ancient  demesne.^  It  is  only  this  third  class 
who  held  by  the  peculiar  tenure  which  is  known  as  tenure  in 
ancient  demesne. 

The  main  characteristic  of  this  peculiar  tenure  is  well  described 
by  Blackstone  as  follows:  *'The  truth  is,"  he  says,  "that  these 
lands  are  of  such  an  amphibious  nature  that  when  compared  with 
mere  copyholds  they  may  with  sufficient  propriety  be  called  free- 
holds ;  and  when  compared  with  absolute  freeholds  they  may  with 
equal  or  greater  propriety  be  denominated  copyholds."  ^  They 
resembled  lands  held  by  villein  tenure  in  that  the  ordinary  real 
actions  were  not  available  to  the  tenant ;  ^  and  even  after  villein 
tenure  had  become  copyhold,  and  had  got  the  protection  of  the 
action  of  ejectment,  that  action  was  never  extended  to  them.^ 
They  differed  from  lands  held  by  villein  tenure  in  the  fact  that 
these  tenants  were  protected  in  their  holdings  by  two  royal  writs 
— the  little  writ  of  right  and  the  writ  of  monstraverunt.^  The 
little  writ  of  right  was  directed  to  the  bailiffs  of  the  manor  if  the 
land  was  in  the  hands  of  the  crown,  to  the  lord  if  it  had  been 
granted  to  a  subject ;  and  it  ordered  the  bailiffs  or  the  lord,  as 
the  case  may  be,  to  do  full  right  "  according  to  the  custom  of 
the  manor"  to  the  complainant.  The  case  was  heard  in  the 
court  of  the  manor ;  but  the  proceedings  of  that  court  could  be 
brought  by  the  usual  methods  before  the  courts  of  common  law/ 

^  ff.  7b,  208b  ;  Bracton  also  deals  in  these  passages  with  the  "  conventioners  ;  " 
for  these  see  above  30 ;  cp.  Y.B.  i,  2  Ed.  II.  (S.S.)  92  for  a  disquisition  on  this 
subject  taken  from  Bracton. 

2  See  Stubbs,  C.H.  ii  566  n.  as  to  tallage ;  in  the  case  of  the  Town  of  Leicester 
(1586)  2  Leo.  191,  Shute,  J.,  said  of  the  privilege  of  freedom  of  toll,  "An  inhabitant 
within  ancient  demesne,  although  he  be  not  tenant,  shall  have  the  privilege." 

3  Blackstone,  op,  cit.  145. 

*See  Y.B.  5  Ed.  II.  (S.S.)  (1312)  76  for  an  attempt  to  bring  replevin  for  a 
seizure  on  land  in  ancient  demesne,  on  the  ground  that  it  was  merely  a  personal 
action ;  the  court  inclined  to  the  view  that  the  action  did  not  lie,  and  this  was  later 
settled  to  be  the  law,  below  267  n.  6 ;  Alden's  Case  (1601)  5  Co.  Rep.  at  f.  105a;  cp. 
21  Ed.  IV.  Pasch.  pi.  3. 

"  Bk.  iv  Pt.  II.  c.  I  §  I. 

''App.  Ia  (12)  (13);  cp.  Ramsey  Cart,  iii  no.  560  for  a  plea  on  a  writ  of 
monstraverunt. 

7  Vol.  i  178;  Y.BB.  33-35  Ed.  L  (R.S.)  236;  16  Ed.  III.  (R.S.)  ii  560;  for  a  case 
in  which  a  plea,  begun  by  little  writ  of  right,  was  removed  into  the  Bench  on  an 
allegation  that  the  king  by  his  charter  had  converted  the  land  into  freehold  see  Y.B. 


266  THE  LAND  LAW 

If  the  manor  was  not  in  the  king's  hands  such  a  writ  would  lie 
even  against  the  lord  himself,  who  could  be  distrained  by  the 
manor  court  to  appear.^  The  little  writ  was  thus  the  appro- 
priate remedy  for  the  individual  tenant  if  he  was  disturbed  in  his 
holding.  The  writ  of  monstraverunt  was  a  remedy  by  which 
all  the  tenants  collectively  could  complain  of  some  infringe- 
ment of  the  custom.  It  was  really  a  complaint  to  the  king ; 
and  in  form  it  did  not  differ  much  from  the  form  of  many  other 
complaints  which  were  made  to  the  king  by  various  classes  of 
his  subjects.^  There  is  some  evidence  that  it  did  not  become  a 
writ  of  course  for  the  tenants  in  ancient  demesne  till  quite  the 
end  of  the  thirteenth  century. ^  By  means  of  these  two  writs, 
therefore,  the  tenant  in  ancient  demesne  was  put  on  a  level  with 
the  freeholder  in  point  of  the  protection  which  he  got  from  the 
king's  court  But  if  we  look  at  some  of  the  services  which  these 
tenants  were  obliged  to  do  we  shall  find  a  large  number  of  the 
principal  features  of  villein  tenure.  Thus  at  King's  Ripton  the 
tenants  in  ancient  demesne  must  work  one  day  a  week  at  what- 
ever work  their  lord  assigns  them,  and  three  days  a  week  in 
August  and  September ;  they  pay  arbitrary  tallage  and  merchet ; 
they  cannot  have  their  sons  ordained  or  leave  the  manor  without 
the  lord's  licence.^ 

What,  then,  is  the  explanation  of  this  curious  class  of  men? 
The  best  explanation  seems  to  be  that  it  was  a  genuine  survival 
from  the  days  before  the  royal  courts  had  grouped  all  tenures 
into  the  two  classes  of  the  free  and  the  unfree.^  x^ll  the  accounts 
of  it  which  we  possess  are  connected  with  the  settlement  made 
at  the  Conquest. *"  Its  name  and  characteristics  show  that  it  is 
ancient.  There  were  many  sokemen  before  the  Conquest  whose 
services  were  various,  who  could  not  be  grouped  under  any  of 
the  types  of  tenure  created  by  the  common  law.^     That  these 

3,  4  Ed.  II.  (S.S.)  1-3.  As  was  the  case  with  the  copyholder,  the  little  writ  could  by 
protestation  he  made  to  serve  the  purpose  of  an  assize  of  novel  disseisin  and  other 
real  actions,  Y.B.  8  Ed.  II.  (S.S.)  96,  97. 

^Select  Pleas  in  Manorial  Courts  (S.S.)  114-121. 

2  Vinogradoff  102-104,  *'  When  for  some  reason  right  could  not  be  obtained  by 
the  means  afforded  by  the  common  law,  the  injured  party  had  to  apply  to  the  king 
by  petition.  One  of  the  most  common  cases  was  when  redress  was  sought  for  some 
act  of  the  king  himself  or  of  his  officers,  when  the  consequent  injunction  to  the 
common  law  courts  or  to  the  Exchequer  to  examine  the  case  invariably  began  with 
the  identical  formula  which  gave  its  name  to  the  writ  by  which  privileged  villeins 
complained  of  an  increase  of  services." 

3  P.  and  M.  i  371  n.  3 — Maitland  says  that  it  is  not  mentioned  by  Glanvil  or 
Bracton  or  by  any  register  of  writs  of  Henry  III.'s  day,  but  that  in  1290  there  is 
endorsed  on  a  petition  to  Parliament  of  certain  ancient  demesne  tenants  a  direction  to 
make  a  writ  for  such  cases  "  to  endure  for  all  time." 

^Ibid  376,  377.  ^Ibid  382-384;  Vinogradoff  122-125. 

"  Dialogus  de  Scaccario  i  10 ;  Bracton  f.  7. 
'Vol.  ii  72,  170,  201. 


SPECIAL  CUSTOMS  267 

men  should  have  survived  on  the  king's  manors  while  they  dis- 
appeared elsewhere  is  perhaps  not  strange.  Other  lords  got 
what  they  could  out  of  the  conquered  population  and,  assisted  by 
the  royal  courts,  degraded  them  to  the  position  of  villeins. 
The  king  posed  as  the  successor  of  Edward  the  Confessor.  The 
new  legal  doctrines  could  not  perhaps  so  easily  be  applied  to  his 
manors.  In  many  ways  they  stood  apart  from  the  rest  of  the 
country  because  he  was  king.  Even  if  he  alienated  his  manor 
these  peculiar  characteristics  remained,  partly  because  it  would 
not  have  been  fair  to  existing  tenants  to  allow  such  alienation 
to  alter  their  rights  ;  ^  partly  because  the  king,  if  he  ever  resumed 
his  grant,  would  not  wish  to  see  his  property  wasted  and  his 
tenants  exiled;^  partly  because  even  after  such  alienation  he 
often  assumed  to  exercise  some  rights  within  the  manor.  ^ 

In  later  days  the  existence  of  this  tenure  puzzled  the  lawyers. 
When  tenure  in  villeinage  had  become  tenure  by  copyhold,  when 
copyholders  had  gained  protection  in  the  king's  court,^  the  differ- 
ences between  ordinary  copyhold  tenure  and  tenure  in  ancient 
demesne  became  merely  technical.  The  ease  with  which  an  act 
of  the  lord  might  convert  the  latter  tenure  into  freehold  ^  must 
have  tended  to  reduce  the  amount  of  land  held  by  it.  In  fact, 
in  some  cases  the  privileged  tenant  in  ancient  demesne  found 
himself  at  a  disadvantage  as  compared  with  the  copyholder.  The 
copyholder  had  a  right  of  action  in  the  king's  court :  the  tenant 
in  ancient  demesne  must  sue  in  the  lord's  court,  and  could  not 
make  use  of  the  new  action  of  ejectment. "^ 

The  lawyers  never  quite  made  up  their  minds  whether  or  no 
these  tenants  had  the  freehold.  In  the  early  years  of  the  fifteenth 
century  it  was  laid  down  that  sokemen  who  use  the  little  writ  and 
convey  their  lands  by  feoffment  are  freeholders ;  while  those  who 
convey  * '  by  the  rod  "  cannot  use  the  little  writ,  and  are  therefore 
villeins  or  copyholders.^     This  seems  to  be  the  view  taken  by 

^  Vinogradoflf,  English  Society  326,  330,  429,  474. 

2  P.  and  M.  i  380 ;  Vinogradoff,  Villeinage  107  ;  cp.  Coke,  Fourth  Instit.  269 — 
he  says  that  they  have  their  privileges  •'  to  the  end  that  they  might  better  apply  them- 
selves to  their  labours  for  the  profit  of  the  king." 

3  Vinogradoff"  105-107.  *  Above  206,  208-209. 
^See  Viner,  Ab.  Ancient  Demesne  I  and  K. 

^  Ibid  E  pi.  23  ;  Coke,  Fourth  Instit.  270,  says,  "  This  privilege  [of  suing  in  the 
manor  court]  doth  not  extend  to  meer  personal  actions,  as  debt  upon  a  lease,  trespass, 
quare  clausum  fregit,  and  the  like,  in  which  by  common  intendment  the  title  of  the 
freehold  shall  not  come  in  debate.     But  otherwise  it  is  of  all  real  actions,  and  also  in 

I  actions  of  account,  replevin,  ejectione  firmae,  writ  of  mesne,  and  the  like,  where  by 
common  intendment  the  realty  shall  come  in  question;  "  cp.  Y.BB.  17,  18  Ed.  III. 
(R.S.)  142;  18  Hy.  VI.  Mich.  pi.  11. 
'  Y.B.  14  Hy.  IV.  Hil.  pi.  51,  Hankford,  J.,  said,  "  Comment  que  vous  avez  use 
de  porter  bref  de  droit,  etc.  Et  ce  ad  este  malement  use,  et  enconter  ley,  car  jeo 
meme  veye  un  foits  ceo  matter  debate  en  Parliament,  et  la  fuit  determine  que  touts 
les  terres  que  sont  tenus  par  verge  ne  sont  pledables  par  bref,  mes  par  bill,  per  ce  que 


268  THE  LAND  LAW 

Fitzherbert/  and  with  respect  to  those  who  conveyed  by  feoff- 
ment, it  is  the  view  which  has  prevailed.^  If  it  had  prevailed  at 
an  earher  period,  it  might  have  taken  their  privileges  from  many 
tenants  in  ancient  demesne.  But,  as  Maitland  points  out,  we 
hear  of  this  doctrine  at  a  time  when  it  does  not  much  matter  to 
the  tenant  in  ancient  demesne  whether  or  not  he  is  entitled  to 
the  little  writ,  seeing  that  as  a  copyholder  he  was  acquiring  other 
and  better  remedies.^  No  doubt  the  fact  that  some  lawyers 
adopted  this  doctrine  was  one  reason  why  this  class  of  tenants 
tended  to  decrease.  But  it  was  not,  and  it  could  not  be,  uni- 
versally adopted.  There  were  still  tenants  who  used  the  little 
writ  and  yet  conveyed  by  the  rod,  who  held  by  the  custom  of  the 
manor  but  not  at  the  will  of  the  lord.  The  rule  laid  down  by 
Fitzherbert  took  no  account  of  those  who  held  in  this  manner. 
Some  thought  that  they  could  be  called  freeholders,*  while  others 
denied  them  this  title ;  ^  and  it  is  the  latter  opinion  which  has 
prevailed.^ 

The  difficulty  was  an  old  one.  The  same  judge  who  laid  it 
down  that  all  who  conveyed  by  the  rod  held  by  villein  tenure 
seems  to  say  in  an  earlier  case  of  the  same  year  that  by  special 
custom  one  who  was  seised  of  an  estate  of  inheritance  in  the  land 
might  convey  by  surrender  to  his  lord ''  This  case  shows  us  that 
even  in  the  mediaeval  period  some  confusion  was  caused  by  the 
fact  that  the  term  "  freehold  "  was  used  sometimes  to  express  the 
quality  of  the  tenure,  sometimes  the  quantity  of  the  estate ;  and 
at  a  later  period  this  was  a  still  more  fertile  source  of  confusion.^ 

le  franktenement  est  en  le  Seigneur.  Et  auxi  il  ad  diversite  parenter  sokeman  de 
franktenure  et  sokeman  de  base  tenure ;  sokemen  de  franktenure  sont  ceux  que  de- 
murrant en  auncient  demesne,  queux  sont  pledable  par  brief  de  droit  close ;  mes 
sokemen  de  base  tenure  sont  ceux  que  teignont  par  verge  al  volunte  le  Seignior,  et  le 
franktenement  est  en  le  Seignior."  This  distinction  does  not  seem  to  be  insisted  on 
in  the  Old  Natura  Brevium,  cited  Blackstone,  op.  cit.  126. 

ip.N.B.  II  F,  12  B  and  C. 

2  Third  Report  of  the  Real  Property  Commission  12-14;  Merttens  v.  Hill  [1901] 
I  Ch.  842  ;  hence  it  was  held  in  that  case  that  no  fine  for  alienation  could  be  charged 
— a  deduction  clearly  in  harmony  with  the  rules  of  the  common  law  as  to  freedom 
of  alienation,  above  85  ;  but  cp.  Professor  Vinogradoff's  criticism  L.Q.R.  xxx  499. 

^  Above  208-209. 

^Bro.,  Ab.  Tenant  per  copie  pi.  22  {3  Ed.  III.);  Combe's  Case  (1614)  9  Rep. 
76 ;  Cro.  Car.  229,  '*  Though  it  be  mentioned  that  the  land  is  granted  by  copy  it  is 
not  said  tenendum  ad  voluntatem  domini ;  so  it  may  be  well  intended  a  freehold : 
and  in  Wales  there  be  many  freeholds  granted  by  copy  and  by  verge;"  Co.  Litt. 
59b  ;  Coke,  Copyholds  §  32 ;  Gale  v.  Noble  (1698)  Carth.  432. 

^Hunt  V.  Burn  (1701)  Salk.  57,  Holt,  C.J,,  said  that  tenants  in  ancient  demesne 
were  free  as  to  their  persons,  but  not  as  to  their  estates. 

^  Bishop  of  Winchester  v.  Knight  (1717)  i  P.  Wms.  406 ;  Stephenson  v.  Hill 
(1762)  3  Burr,  at  p.  1278;  Conolly  v.  Vernon  {1804)  5  East  51;  Cooke  v.  Danvers 
(1806)  7  East  299;  Duke  of  Portland  v.  Hill  {1866)  L.R.  2  Eq.  765,  777. 

7  Y.B.  14  Hy.  IV.  Mich.  pi.  2;  cp.  Bro.,  Ab.  Customes  pi.  2  =  Y.B.  3  Hy.  VI. 
Pasch.  pi.  24 — but  in  this  case  the  tenants  are  said  to  be  seised  of  •'  their  tenancy," 
not  as  in  the  former  case  of  "  the  inheritance." 

^  Duke  of  Portland  v.  Hill,  above  n.  6. 


SPECIAL  CUSTOMS  269 

In  fact,  the  question  whether  or  not  these  tenants  had  the  free- 
hold might  well  have  remained  a  moot  point  had  not  their  right 
to  the  parliamentary  franchise  turned  upon  its  solution.  Black- 
stone  considered  the  question,  and  came  to  the  historically  correct 
conclusion  that  these  tenants  were  neither  freeholders  nor  copy- 
holders, but  a  tertium  quid ;^  and  his  conclusion  that  they  could 
not  be  said  to  have  the  freehold  has,  as  we  have  seen,  been 
adopted  by  the  judges.^  So  far  as  it  applied  to  the  parlia- 
mentary franchise  it  was  immediately  adopted  by  the  legislature.^ 
The  peculiar  form  of  the  actions  which  were  obligatory  upon 
tenants  in  ancient  demesne  sometimes  caused  difficulties  when 
these  actions  were  used  for  the  purpose  of  suffering  a  recovery 
or  levying  a  fine.  These  difficulties  were  removed,  and  preced- 
ing irregularities  so  far  as  possible  rectified,  by  the  Act  which 
abolished  fines  and  recoveries.  In  consequence  of  the  changes 
made  by  the  Common  Law  Procedure  Act,  1852,  the  peculiari- 
ties of  this  species  of  tenure  have  for  the  most  part  disappeared.* 

The  Borough  Customs} 

There  are  two  main  causes  for  the  divergence  of  the  borough 
customs  from  the  common  law.  (i)  These  customs  were  in  many 
cases  codified  in  the  borough  custumal  at  an  early  date.*^  Because 
they  were  thus  stereotyped  they  were  more  able  to  resist  the  en- 
croachments of  the  common  law  than  the  uncodified  customs  of 
the  open  country.  Thus  we  find  that  in  many  cases  they  pre- 
serve old  rules  which  elsewhere  have  passed  away.  (2)  The 
borough  was  a  commercial  centre,  and  therefore  landowning  in 
the  borough  tended  to  diverge  at  many  points  from  landowning 
in  the  country.  The  rules  which  suited  the  knight,  the  religious 
house,  the  serjeant,  or  the  socman,  and  the  manorial  rules  regu- 
lating the  humbler  classes  which  cultivate  the  soil,  could  not  be 
transplanted  in  their  entirety  to  the  house  and  the  shop  of  the 
burgess.  No  doubt  the  gulf  between  the  dweller  in  the  town  and 
the  dweller  in  the  country  was  in  some  ways  less  deep  in  mediaeval 
than  in  modern  times;  and  there  are  boroughs  and  boroughs. 
Great  cities  like  London  or  Bristol  were  more  commercial  and 
less  agricultural  than  market  towns  like  Oxford  or  Cambridge. 
Some  boroughs  owned  many  acres  of  common  lands.  ^  But, 
when  all  allowances  have  been  made,  it  is  obvious  that  the  com- 
merce of  the  boroughs  necessitated  some  exceptions  to  the  ordin- 
Iary  rules  of  the  land  law. 
^  Above  265.  2  Above  268.  ''31  George  II.  c.  14. 

*  Williams,  Real  Property  57,  58;  3,  4  William  IV.  c.  74;  15,  16  Victoria  c.  76. 
^See  Miss  Bateson's  Introduction  to  vol.  ii  of  the  Borough   Customs  (S.S.) ; 
M.  W.  Hemmeon,  Burgage  Tenure  in  Mediaeval  England,  some  parts  of  which  will 
be  found  in  L.Q.R.  xxvi  215,  331,  and  xxvii  43. 
8  Vol.  ii  373-375.  7Vol.  ii39. 

I 


270  THE  LAND  LAW 

I  shall  here  very  briefly  mention  a  few  of  the  special  customs 
in  the  boroughs,  and  I  shall  group  them  under  these  two  heads. 
Of  course,  it  is  not  possible  thus  to  group  exactly  the  almost 
infinite  variety  of  these  customs.  Some  primitive  rules  may  well 
have  sprung  up  and  survived  from  both  these  causes,  but  this  will 
give  us  a  rough  principle  of  division  between  a  somewhat  chaotic 
mass  of  various  rules. 

(i)  Rules  arising  from  the  fact  that  the  borough  customs  were 
codified. 

In  some  boroughs  there  are  restraints  upon  alienation  both  in 
the  interests  of  the  lord  and  in  the  interests  of  the  kin  which  take 
us  back  to  the  days  of  the  Laws  of  Henry  I.  and  of  Glanvil.^ 
The  burgess  had,  at  an  early  date,  got  his  lord's  leave  to  sell  his 
houses  on  payment  of  a  fixed  price,  and  the  obligation  to  pay 
that  price  remained  even  when  freedom  of  alienation  had  become 
the  general  rule  of  the  common  law.^  The  kin  had  the  right  to 
hinder  the  alienation  of  land,^  except  in  certain  cases  of  neces- 
sity ;  *  and  their  rights  were  greater  in  the  case  of  inherited  than 
in  the  case  of  purchased  land.^  In  some  cases,  however,  this 
right  to  hinder  alienation  had  sunk  to  a  right  of  pre-emption^ — 
and,  according  to  the  custumals  of  some  towns,  at  a  price  lower 
than  that  offered  by  the  stranger  purchaser.'''  In  other  cases  if 
the  kin  did  not  exercise  this  right  of  pre-emption  the  lord  could 
exercise  it.^  These  restrictions,  however,  were  modified  by  the 
very  general  rule  that  seisin  for  a  year  and  a  day  gave  the  pur- 
chaser a  good  title.  ^ 

We  have  seen  that  in  the  thirteenth  century  the  owner  of 
land  could  impose  restrictions  upon  its  alienation  to  certain 
classes  of  persons,  such,  for  instance,  as  Jews  or  religious  houses.^^ 
These  restrictions  appear  in  many  custumals. ^^  No  doubt  they 
date  back  to  the  time  when  the  law  as  to  limitations  on  alienation 

1  Borough  Customs  (S.S.)  ii  Ixxxv-xci;  Hemmeon,  op.  cit.  52-54,  iii,  115-126; 
above  73-75. 

2  Borough  Customs  ii  65  Northampton  (fifteenth  century) ;  70  Kidderminster 
(1333  ?) ;  Hemmeon,  op.  cit.  54-58. 

3  Borough  Customs  (S.S.)  ii  6g  Bury  (1327). 

^Ibid  61  London  (1133-1154) ;  63,  64  Northampton  (1190). 

^Ibid  69  Manchester  (1301) ;  95,  96  and  notes  as  to  devise;  cp.  above  74. 

^  Ibid  69,  70. 

'  Ibid  70,  71  Fordwich  (fourteenth  century) ;  72  Dover  (fifteenth  century). 

8  Ibid  64,  65  Northampton  (1190). 

^Ibid  ii  cxv-cxvii;  62,  63  Nottingham  Charter  (1155-1165),  "  Et  quicunque  bur- 
gensium  terram  vicini  sui  emerit  et  possederit  per  annum  integrum  et  diem  unum, 
absque  calumpnia  parentum  vendentis,  si  in  Anglia  fuerit,  postea  eam  quiete  possi- 
debit." 

^^  Above  103, 

^1  Borough  Customs  ii  xci;  93  Chard  (1230);  Waterford  (1300)  "except  ...  to 
such  people  as  cannot  aid  or  succour  the  city  if  there  be  need;"  Godmanchester 
(1324)  not  '*  to  any  foreigner." 


SPECIAL  CUSTOMS  271 

was  uncertain,  but  they  were  also  regarded  as  useful  by  boroughs 
who  desired  to  discourage  foreigners. 

Some  of  the  rules  of  inheritance  are  old  survivals.  We  know 
from  Glanvil  that  one  of  the  gifts  which  a  landowner  was  allowed 
to  make  was  the  gift  of  a  marriage  portion  to  his  daughter.^  We 
see  this  permission  in  some  of  the  custumals,^  with  the  addition 
that  the  child  to  whom  such  an  advance  has  been  made  is  "  foris- 
familiated," i.e.  she  cannot  claim  any  further  share  in  the  inherit- 
ance.^ We  see,  too,  that  in  the  borough  partibility  of  the  inheritance 
was  the  rule,  as  it  was  the  rule  in  Glanvil's  time  in  the  case  of 
land  held  by  non-military  tenure.*  But  the  number  of  variations 
upon  this  custom  is  great.  Among  these  variations  the  best 
known  is  the  custom  of  descent  to  the  youngest  son — the  "  borough 
English"  of  the  common  law.  The  name  is  derived  from  the 
fact  that  at  Nottingham  it  was  the  custom  of  the  English  as  con- 
trasted with  the  French  town.^  It  was,  however,  found  at  other 
places  besides  Nottingham,  and  it  was  known  in  manors  as  well 
as  boroughs,  both  in  England  and  abroad.^  Probably  its 
explanation  is  to  be  found  in  the  fact  that  **the  younger  son,  if 
he  lack  father  and  mother,  because  of  his  younger  age,  may  least 
of  all  his  brethren  help  himself"  ^ 

(2)  Rules  arising  from  the  commercial  character  of  the 
boroughs. 

Of  the  special  customs  which  may  be  ascribed  to  the  com- 
mercial character  of  the  boroughs  the  most  striking  is  the  custom 
to  devise  lands.^  In  its  origin  it  may  no  doubt  come  down  from 
the  time  when  the  common  law  had  not  as  yet  firmly  set  its  face 
against  the  will  of  land.^  But  it  cannot  be  doubted  that  its 
extension  was  an  object  of  ambition  to  the  boroughs,  because  the 
burgess  regarded  his  house  as  part  of  his  capital,  and  desired  to 
have  the  same  freedom  of  disposition  over  it  as  he  had  over  his 
chattels. ^^  Therefore,  as  Maitland  has  said,  "  it  is  in  the  boroughs 
that  landownership  first  reaches  a  modern  degree  of  purity  and 
intensity."  ^^ 

1  Above  74. 

2  Borough  Customs  ii  92  Northampton  (1190). 

2  Ibid  133  Ipswich  (1291) ;  and  Exeter  Court  Roll  (1321,  2);  vol.  ii  272,  579. 

*  Ibid  132,  133.  ^  Ibid  xcv.  ^  Robinson,  Gavelkind  238,  239. 

■^  Litt.  §  165;  and  cp.  Robinson,  Gavelkind  232-235;  Littleton's  explanation  is 
that  adopted  in  Y.B.  8  Ed.  IV.  Mich.  pi.  30. 

^  For  a  general  account  see  Hemmeon,  op.  cit.  130-144. 

^  Borough  Customs  ii  xcii ;  we  see  in  some  places  the  distinction  drawn  between 
acquired  and  inherited  land,  e.g.  98  Norwich  (1306). 

^°  Ibid  xciii,  xciv ;  see  ibid  96  London  and  Northampton  (1295-1316),  "Pur- 
chased lands  which  a  man  can  devise  like  a  chattel,  and  this  because  burgess 
merchants  generally  employ  the  half  or  more  of  their  chattels  in  their  housing,  where- 
fore they  may  devise  their  purchased  land,  but  not  their  inherited  land." 

^^  Township  and  Borough  72. 


272  THE  LAND  LAW 

The  maintenance  in  a  proper  state  of  repair  of  the  buildings 
of  the  borough  was  necessary  to  the  safety  of  the  community. 
Thus  there  are  stringent  rules  as  to  repair,  and  a  peculiar  pro- 
cedure in  case  ofwaste.^  In  case  of  waste  it  was  necessary  to 
consider  not  only  the  interests  of  the  community,  but  also  the 
interests  of  the  lord.  The  lord  could  not  so  easily  seize  a  tenement 
in  the  borough  as  he  could  seize  a  tenement  in  one  of  his  own 
manors  if  it  were  being  wasted.^  Therefore  a  special  process  in 
case  of  waste  is  developed  earlier  in  the  boroughs  than  at  common 
law.  For  similar  reasons,  as  we  have  seen,  the  royal  remedy 
afforded  by  the  writ  of  cessavit  may  have  been  suggested  by  some 
of  the  borough  remedies  for  rent  in  arrear.^  Conversely  the 
interest  of  the  tenant  for  term  of  years  was  sometimes  better 
protected  than  at  common  law.  The  clause  of  the  Statute  of 
Gloucester  ^  which  allowed  the  termor  to  intervene  in  a  collusive 
action  arranged  by  his  landlord  to  deprive  him  of  his  land  may 
have  been  suggested  by  the  needs  of  Londoners.  At  Dublin  the 
termor  had  a  right  of  pre-emption  if  bis  lessor  proposed  to  sell  or 
let  the  land.  5 

Escheat,  usually  to  the  crown,  and  forfeiture  are  found  in  the 
boroughs  ;  ®  but  there  are  very  few  of  the  other  incidents  of  tenure. 
Reliefs  are  not  found  in  the  larger  boroughs,^  and  heriots  only  in 
those  which  were  purely  agricultural.^  No  aids  ^  are  exacted,  and 
the  incident  of  marriage  is  unknown.^^  It  is  in  respect  to  the 
incident  of  wardship  that  the  greatest  divergence  is  apparent;  for 
it  is  clear  that  the  claim  of  the  lord  to  wardship  is  wholly  incom- 
patible with  the  interests  of  the  burgesses.  "  In  the  smaller 
boroughs,  under  a  single  lordship,  it  was  early  made  a  clause  of 
the  borough  charter  that  the  lord  should  give  up  his  right  of 
wardship,  and  that  the  duty  of  guardianship  should  devolve  in 
the  last  resort  on  the  reeve  or  some  person  selected  by  the 
burgesses.  There  was  to  be  a  dative  guardianship  when  the 
natural  or  testamentary  guardianship  failed,  never  any  seignorial 
guardianship.  The  testamentary  guardianship,  of  course  unknown 
to  early  folk  law,  .  .  .  seems  to  have  become  a  borough  privilege 
akin  to  the  privilege  of  freedom  of  alienation  or  devise."  ^^  We 
are  not  surprised  to  find  that  the  borough  courts  exercised  a 
stringent  control  over  the  guardian's  conduct  ^^     They  were  com- 

1  Borough  Customs  i  278-280.  ^  Ibid  ii  cxxv,  cxxvi ;  ibid  i  281-285. 

3  Above  16. 

4 6  Edward  I.  c.  11 — the  statute  applies  primarily  to  the  City  of  London;  cp. 
Hemmeon,  op.  cit,  go. 

'Borough  Customs  ii  cxxvi ;  and  cp.  i  312,  313. 

^  Hemmeon,  op.  cit.  24,  45;  it  was  said  in  argument  in  Y.B.  8  Ed.  II.  (S.S.)  73 
that  burgage  tenure  was  always  tenure  in  chief. 

'  Hemmeon,  op.  cit.  18-21.  ^  Ibid  22. 

»Ibid  11,12.  10  Ibid  12,  15. 

^' Borough  Customs  ii  cxxviii,  cxxix;  145  seqq.  ^^jbid  148-153. 


SPECIAL  CUSTOMS  273 

pelling  him  to  account,  before  the  common  law  had  attained  an 
adequate  process  for  this  purpose.^  Their  rules  made  the  guardian 
a  trustee,  whose  duties  were  minutely  regulated.^ 

Such,  then,  are  some  of  the  principal  variations  of  the  borough 
customs  from  the  common  law  relating  to  landholding.  They 
have  not  been  wholly  uninfluenced  by  the  common  law,  nor  has 
the  common  law  been  wholly  uninfluenced  by  them.  We  can 
trace  the  influence  of  the  real  actions  given  by  the  common  law 
in  many  of  the  proceedings  which  could  be  taken  for  the  recovery 
and  protection  of  property  in  the  borough  courts,  and  in  the 
estates  for  which  such  lands  could  be  held.^  On  the  other  hand, 
the  larger  protection  given  by  the  common  law  to  the  termor,  the 
effective  remedy  by  writ  of  cessavit  given  to  the  landlord,  the 
action  of  account  given  against  the  guardian  in  socage — if  they 
were  not  actually  suggested  by  the  borough  customs,  at  least  were 
to  be  found  existing  there  in  principle  before  they  became  part 
of  the  common  law.  In  the  custom  to  devise  land,  and  in  the 
permission  to  appoint  a  guardian  by  will,  we  can  see  rules  which 
the  common  law  was  slow  to  follow ;  ^  and  in  the  strict  control 
which  the  borough  court  exercised  over  the  guardian  we  can  see 
the  development  of  a  trusteeship  to  the  conception  of  which  the 
common  law  never  attained.  That  it  never  attained  to  this  con- 
ception is  due  in  no  small  degree  to  the  fact  that  it  set  its  face 
against  the  devise  of  land,  and  to  the  fact  that  it  had  abandoned 
jurisdiction  over  wills  of  personalty  to  the  ecclesiastical  courts.^ 
This  will  be  apparent  if  we  look  at  some  of  the  cases  in  the  Year 
Books  which  turn  upon  these  devises  in  the  boroughs.  They 
show  us  that  the  germs  of  some  legal  doctrines,  which  grew  in 

^  Borough  Customs  ii  cxxxii. 

2  Ibid  147,  148,  extracts  from  the  White  Book  of  London  (1243)  and  from  the 
coram  rege  roll  Pasch.  3  Ed.  II.  r.  74  (no.  200)  {13 10) ;  "  From  the  end  of  the  thirteenth 
century  wardship  had  become  in  some  of  the  boroughs  a  trust  under  the  superintendence 
of  the  borough  court,"  ibid  cxxxiii;  and  cp.  Williams,  Executors  (8th  ed.)  1553-1554; 
Calendar  of  Wills  in  the  Court  of  Husting  xlvi,  xlvii ;  Hobart's  Rep.  (1619)  case  314 ; 
Lex  Londiniensis,  or  City  Law  (ed.  1680),  deals  at  pp.  55-99  with  the  Orphans'  Court. 
The  usefulness  of  the  London  court  in  looking  after  orphans'  goods  in  the  sixteenth 
century  is  illustrated  by  James  Whitelocke's  Liber  Famelicus  (C.S.)  6.  But  at  the 
end  of  the  seventeenth  century  the  City  of  London  found  itself  unable  to  meet  its 
obligations  to  the  orphans,  Hist.  MSS.  Com.  13th  Rep.  App.  Pt.  V.  no.  329  ;  a  bill  was 
introduced  into  the  House  of  Lords  in  1690  which  was  dropped  in  the  Commons,  ibid  ; 
it  was  reintroduced  in  1691,  but  rejected  by  the  Commons,  ibid  no.  434 ;  an  Act  was 
finally  passed  in  1694-1695,  6  WiUiam  and  Mary  c.  10. 

3  Borough  Customs  ii  cxix-cxxiv ;  at  p.  cxxiii  it  is  said  that,  "  The  practitioners  in 
the  borough  court  imitated  the  procedure  in  the  royal  courts  in  dealing  with  the  newer 
real  actions  by  causing  the  demandant  who  brought  a  writ  of  right  to  protest  that  he 
would  prosecute  his  action  •  in  the  manner  of  one  of  the  common  law  actions."  For 
the  assize  of  fresh  force,  which  apparently  was  at  one  time  the  possessory  remedy  for 
those  who  had  land  in  boroughs  having  the  franchise  to  hear  pleas  of  land,  see  the 
Eyre  of  Kent  (S.S.)  iii  xxxvi-xl. 

4  Guardianship  12  Charles  II.  c.  24  §  8;  Wills  32  Henry  VIII.  c.  i. 

5  Vol.  i  625-629 ;  below  536,  585,  591-595- 
VOL.  III.  — 18 


274  THE  LAND  LAW 

later  days  to  great  importance  under  the  fostering  hand  of  the 
chancellor,  might  have  been  elaborated  in  the  common  law.  In 
the  bargain  and  sale  by  executors  we  see  v/hat  is  in  substance  a 
power  of  appointment.^  In  a  case  of  Edward  III.'s  reign  we  see 
a  future  interest  in  land  which  is  certainly  not  a  remainder.^  In 
fact,  the  attention  paid  to  the  intentions  of  the  testator  rather  than 
to  his  exact  words  reminds  us  far  more  of  later  equitable  doctrines 
than  of  any  of  the  usual  doctrines  of  the  common  law.^  These 
instances  may  show  us  that  if  the  common  law  had  not  set  its  face 
so  rigidly  against  the  devise  of  land  many  doctrines,  which  later 
were  appropriated  by  and  elaborated  in  the  Chancery,  might  have 
come  within  its  sphere  of  influence. 

But  the  borough  customs  as  to  the  land  law  were  not  destined 
to  exercise  any  of  these  large  liberalizing  influences.  They  gradu- 
ally disappeared — absorbed  into  the  general  system  of  English 
law ;  and  they  left  their  traces  only  in  isolated  rules  of  which  the 
law  must  still  make  mention  as  exceptions  to  its  uniformity. 

It  is  not  to  the  land  law  that  we  must  look  for  any  important 
influence  of  the  borough  customs  on  the  common  law.  In  the 
boroughs  the  land  law  was  not,  even  in  the  Middle  Ages,  the 
most  important  branch  of  the  law.  It  is  rather  to  the  rules 
regulating  commercial  transactions,  and  more  especially  to  the 
rules  which  regulate  foreign  trade,  that  we  must  look  for  the 
sources  of  more  permanent  and  important  influences.^  But  though 
the  borough  customs  cannot  be  said  to  have  exercised  a  great 
influence  upon  the  development  of  the  law,  they  are  of  great  im- 
portance to  those  who  study  its  history,  because  they  throw  light 
upon  many  early  phases  and  upon  many  of  those  old  rules  which 
formed  the  raw  material  of  its  founders.  Upon  this  aspect  of 
their  importance  we  cannot  do  better  than  copy  the  eloquent  words 
of  Miss  Bateson — the  learned  and  lamented  historian  who  has 
given  us  back  again  our  borough  law : — ^ 

*'  For  the  sake  of  uniformity  of  worship,  many  quaint  rites 
have  been  abandoned ;  in  the  great  temple  of  the  common  law 
the  side  chapels  are  altarless  and  empty.     The  justice  of  the  local 

^Y.B.  19  Hy.  VI.  Mich.  pi.  47,  Markham  says,  "  Et,  Sir,  jeo  veux  prover  bien 
que  I'executors  peuvent  donner  choses  qu'ils  n'avoient,  et  en  ceo  sont  semble  a  un 
whetstone  que  don  sharpness  a*un  cottel,  et  uncore  nul  est  en  luy ;  "  above  136-137. 

2  Above  136. 

^Y.B.  22  Ed.  III.  Mich.  pi.  59  it  was  argued  that  a  devise  without  words  of 
limitation  passed  the  fee  simple ;  this  was  not  acceded  to  ;  Fitzherbert  abridges  this 
case  twice,  Devise  pi.  11  and  20;  pi.  11  follows  the  Y.B, ;  but  pi.  20  (perhaps  from 
another  MS.)  adds,  "  mes  si  soit  a  avoir  a  luy  imperpetuum  mesque  nul  mencion  soit 
fait  de  ses  heires  uncor  il  avera  fee,  mesne  la  ley  est  d'un  devise  fait  a  un  home  et 
assignatis  suis." 

4  Vol.  i  543-544»  569.  570-573;  vol.  ii  309-310,  592;  Bk.  iv  Pt.  I  c.  3. 

^  Borough  Customs  ii  clvi. 


SPECIAL  CUSTOMS 


275 


courts  has  been  ruthlessly  condemned  as  incompetent,  provincial, 
archaic,  unprogressive,  unable  to  adapt  itself  to  a  new  state  of 
society.  The  old  local  justice  is  '  antiquity  forgot,  custom  not 
known,'  because  in  the  system  of  national  justice  the  general 
destroyed  the  particular,  no  doubt  for  good  reason.  And  yet  for 
the  true  understanding  of  the  'jus  et  consuetudo  regni,'  founded 
on  a  bedrock  of  unwritten  tradition,  on  general  immemorial  custom, 
it  may  be  well  to  stoop  to  examine  the  unworthy  particulars.  In 
borough  custom  we  have  a  neglected  series  of  rocks,  not  primary 
in  antiquity,  but  full  of  the  signs  of  life,  and  the  extinct  forms 
which  it  permits  us  to  handle  have  a  place  in  the  history  of  the 
making  of  the  common  law.' " 


CHAPTER  II 

CRIME  AND  TORT 

IT  is  in  this  period  that  the  foundations  of  our  present  law  as 
to  Wrongs  criminal  and  civil  are  laid.  I  have  already 
indicated  some  of  its  salient  features.  The  crown  has  assumed 
jurisdiction  over  the  more  serious  crimes — the  felonies.  Treason 
has  been  made  the  subject  of  a  special  statute  and  has  been 
differentiated  from  the  other  felonies.  For  offences  under  the 
degree  of  felony  there  is  the  writ  of  trespass,  which  has,  as  we 
have  seen,  both  a  criminal  and  a  civil  aspect.^  Such  offences 
when  criminally  prosecuted  will  become  the  misdemeanours  of  our 
later  law.  At  the  beginning  of  this  period  many  of  the  smaller 
wrongs  to  person  and  property  were  dealt  with  in  the  local  courts. 
At  the  end  of  this  period  the  writs  of  trespass  and  deceit  and  their 
offshoots  enabled  the  royal  courts  to  offer  better  remedies  for  a 
varied  and  growing  class  of  wrongs.  Consequently  new  principles 
both  of  criminal  and  civil  liability  were  being  evolved. 

The  history  of  the  criminal  law  of  the  fourteenth  and  fifteenth 
centuries  is  in  the  main  the  history  of  the  detailed  working  out  of 
the  principles  which  had  been  laid  down  in  the  reign  of  Edward 
I.  If  we  except  the  statute  of  Edward  III.  relating  to  treason, 
we  find  no  great  fundamental  changes  made  by  the  legislature. 
We  see,  it  is  true,  the  beginnings  of  the  criminal  law  as  to  labour 
and  vagrants,^  and  some  small  attempts  to  prevent  offences  which 
may  injure  the  state  in  its  relations  with  foreign  states.^  But 
these  branches  of  law  do  not  attain  any  great  importance  in  this 
period.  The  Statute  of  Praemunire  and  the  legislation  on  the 
subject  of  heresy  I  have  already  dealt  with.*  As  we  have  seen, 
most  of  the  statutes  of  this  period  which  create  new  criminal 
offences  have  no  great  permanent  importance  in  the  history  of 
the  criminal  law.^  It  was  not  till  the  state  renewed  its  vigour  in 
the  following  period  that  we  get  either  in  the  statutes  or  in  decided 
cases  any  great  developments.  For  the  present  the  criminal 
law  is  cumbered  with  decadent  survivals.  Appeals  of  felony, 
approvers,  benefit  of  clergy,  sanctuary,  abjuration,  deodands, — 

1  Vol.  ii  357-365,  449-450.  2  Ibid  459-464.  3  Ibid  473-474. 

^  Vol.  i  585-586,  617.  5  Vol.  ii  449-453. 

276 


i 


CRIME  AND  TORT  277 

raise  many  intricate  questions  ;  and  the  intricacies  of  process 
hamper  the  due  administration  of  the  criminal  law  almost  as  much 
as  they  hamper  the  administration  of  the  civil  law.  The  king's 
rights  to  escheats  and  forfeitures  and  the  chattels  of  felons  seem 
sometimes  to  interest  the  judges  almost  as  much  as  the  due 
maintenance  of  law  and  order.  Nor  were  the  common  law 
judges  aroused  to  greater  activity  by  the  existence  of  the 
competition  of  a  rival  court.  We  have  seen  that  Parliament  had 
set  its  face  against  any  interference  with  the  common  law  in 
matters  of  life  and  limb ;  ^  and  though  the  jurisdiction  of  the 
council  was  exercised,  and  sometimes  even  recognized  by  the 
legislature,  the  weakness  of  the  central  government  prevented  the 
fear  of  its  competition  from  exercising  a  liberalizing  influence 
upon  the  doctrines  of  the  common  law.^  Moreover,  at  all  periods 
of  our  history  it  has  been  far  more  difficult  to  extend  the  criminal 
law  by  a  process  of  judicial  decision  than  any  other  branch  of  the 
law.  There  has  always  been  a  wholesome  dread  of  enlarging  its 
boundaries  by  anything  short  of  an  Act  of  the  legislature.  The 
fate  of  Richard  II. 's  judges,  who  tried  prematurely  to  invent  a 
doctrine  of  constructive  treason,  was  somewhat  of  an  object-lesson 
to  the  judges  of  this  period  ;  ^  and  for  many  centuries  to  come  the 
fear  of  an  impeachment  held  in  check  even  judges  of  pronounced 
absolutist  tendencies.  Thus  it  has  happened  that  the  criminal 
law  has,  more  than  any  other  branch  of  the  law,  been  developed 
by  statutes.  But  those  statutes  have  been  interpreted  in  the 
light  of  doctrines  which  were  elaborated  in  the  Middle  Ages  ;  and 
though  the  statutes  have  enlarged  the  boundaries  of  the  criminal 
law  they  took  away  no  one  of  those  half  obsolete  rules  and 
practices  which  were  cumbering  the  law  in  this  period.  Thus  it 
happened  that,  till  the  beginning  of  the  last  century,  there  were 
probably  more  archaic  survivals  both  in  the  substantive  and 
adjective  parts  of  the  criminal  law  than  in  any  other  part  of  the 
law  of  England.* 

The  law  of  tort  in  this  period  shows  far  more  progress.  This 
was  partly  due  to  the  fact  that  in  the  writs  of  trespass  and  deceit 
on  the  case  the  law  had  gained  forms  of  action  which  facilitated 
development.  Partly  also  it  was  due  to  the  fact  that  in  giving 
new  civil  remedies  for  admitted  wrongs  the  courts  were  not 
hampered  by  the  dread  that  they  were  incurring  unpopularity  by 
infringing  the  liberty  of  the  subject — on  the  contrary,  they 
probably  added  to  the  popularity  of  the  common  law  by  thus 
increasing  its  efficiency.     But  above  all  the  courts  were  m.et  at 

1  Vol.  i  486-488.  2  Ibid  489-491.  'Vol.  ii  560;  below  291-292. 

*  Obvious  illustrations  are  trial  by  battle,  peine  forte  et  dure,  deodands,  pardons 
of  course,  benefit  of  clergy. 


278  CRIME  AND  TORT 

the  end  of  this  period  by  the  competition  of  the  Chancery ;  and, 
as  we  have  seen,  there  was  every  reason  to  fear  that  if  they  sent 
empty  away  suitors  who  complained  of  obvious  wrongs,  those 
suitors  would  betake  themselves  to  the  rival  jurisdiction.^ 

I  shall  deal  with  the  history  of  the  more  salient  features 
of  this  branch  of  the  law  in  the  following  order: — §  i.  Self- 
help  ;  §  2.  Treason ;  §  3.  Benefit  of  Clergy,  and  Sanctuary  and 
Abjuration ;  §  4.  Principal  and  Accessory  ;  §  5.  Offences  against 
the  Person ;  §  6.  Possession  and  Ownership  of  Chattels ;  §  7. 
Wrongs  to  Property ;  §  8.  The  Principles  of  Liability ;  §  9. 
Lines  of  future  Development. 

§  I.  Self-help 

The  first  business  of  the  law,  and  more  especially  of  the  law 
of  crime  and  tort,  is  to  suppress  self-help.  And  so  we  find  that 
the  further  back  we  go  into  the  history  of  law  the  more  frequent 
and  detailed  are  the  prohibitions  against  asserting  one's  rights  by 
force.  The  law  cannot  safely  allow  many  exceptions  to  its 
general  prohibitions,  for  that  would  be  to  weaken  the  force  of  a 
general  rule,  obedience  to  which  is  a  condition  precedent  to  its 
life.^  It  is  only  when  obedience  to  law  has  become  the  rule  that 
the  occasions  upon  which  self-help  will  be  allowed  can  be  safely 
defined.  At  the  beginning  of  this  period  we  are  still  in  the  state 
of  society  when  the  general  rule  needs  to  be  firmly  enforced.  At 
the  end  of  this  period  the  common  law  had  acquired  a  large 
number  of  rules  upon  this  matter,  and,  in  the  Year  Books,  a  still 
larger  number  of  concrete  instances  of  the  manner  of  their 
application.  There  were  in  fact  several  reasons  why  the  question 
whether  a  litigant's  self-help  was  or  was  not  justifiable  had  become 
important.  We  have  seen  that  the  weakness  of  the  executive  had 
led  to  a  recrudescence  of  feudal  disorder.^  We  have  seen,  too, 
that,  alterations  in  the  law,  which  extended  a  disseised  owner's 
right  of  entry,  gave  opportunities  for  forms  of  disorderly  self- 
help  which  had  been  sternly  prohibited  in  the  thirteenth  century.* 
For  these  reasons  we  begin  to  see  some  of  the  leading  principles 
of  the  law  relating  to  the  conditions  under  which  self-help  is 
permitted. 

In  defence  of  personal  freedom  a  man  imprisoned  by  another 
in  his  house  was  allowed  to  break  open  the  house  to  effect  an 
escape  ;  ^  and  we  shall  see  that  the  conditions  under  which  corporal 

1  Vol.  ii  592-593  ;  below  424,  436,  442,  447. 

2  Vol.  ii  44.  3  Ibid  414-418. 
*  Ibid  263,  583-586 ;  cp.  P.  and  M.  ii  572. 

f*  Y.B,  9  Ed.  IV,  Mich.  pi.  lo  per  Littleton, 


SELF-HELP  279 

injuries  to  another,  in  defence  of  a  man's  person,  or  that  of  his 
servants  or  family,  were  justifiable,  were  growing  more  precise.^ 
Similarly  we  see  some  attempts  at  defining  the  conditions  under 
which  a  man  was  allowed  to  help  himself  if  his  rights  to  the  quiet 
enjoyment  of  his  property  were  attacked.^  An  illustration  of  the 
right  to  help  oneself  in  these  cases  is  afforded  by  the  remedy  of 
abatement.  A  man  was  allowed  to  enter  premises  where  a 
nuisance  exists  and  abate  it,  if  the  nuisance  rendered  his  land 
unprofitable  or  his  house  uninhabitable.^  Also,  within  certain 
limits,  an  owner,  if  deprived  of  his  goods,  might  recapture  them, 
or  if  disseised  of  his  land  might  peaceably  enter  thereon  ;  and  in 
the  case  of  these  rights  of  recapture  or  re-entry  the  conditions 
under  which  they  were  permissible  were  somewhat  more  liberal 
at  the  end  of  this  period  than  they  were  at  the  beginning ; 
and  they  tended  to  become  still  more  liberal  in  modern  law.* 
Of  this  development  in  the  law  I  must  at  this  point  speak 
briefly. 

In  the  case  of  goods,  the  man  who  retook  them  by  force 
committed  a  trespass,  and  in  the  thirteenth  century  ran  consider- 
able risks  of  being  treated  as  a  thief  ^  At  the  end  of  this  period 
the  use  of  force  was  probably  tortious,^  and  might,  if  it  resulted 
in  the  death  of  the  person  against  whom  it  had  been  used,  be 
felonious  ;  '^  but,  of  course,  if  the  person  wrongfully  in  possession 
used  violence  to  defend  that  possession,  the  violence  of  the 
rightful  owner  might  be  justifiable  if  it  could  be  proved  that  it  was 
used  in  the  necessary  defence  of  his  person.^  On  the  other  hand, 
peaceable  recapture  was  allowed  ;  and  it  was  lawful  for  this 
purpose  to  enter  upon  the  land  of  the  person  who  had  wrongfully 
taken  the  goods,  but  not  to  break  into  his  house.®  But  such 
entry  was  not  permissible  if  the  true  owner  had  bailed  them  to 
the  person  on  whose  land  they  were  ;  nor  (probably)  if  the  person 
who  had  wrongfully  taken  the  goods  had  sold  or  bailed  them  to 

1  Below  312-314,  377-378. 

2  Below  378  ;  Coke  lays  it  down,  Second  Instit.  316,  that  a  man  may  justify  an 
assault  and  battery  in  defence  of  lands  or  goods,  but  not  maiming  or  wounding  or 
menace  of  life  or  member — '•  and  so  note  a  diversity  between  the  defence  of  his  person, 
and  the  defence  of  his  possessions  or  goods  ;  "  Green  v.  Goddard  (1704  circ.)  2  Salk. 
641  per  Powell,  J. 

8  Bracton  f.  231b — but  in  his  day  only  if  the  nuisance  was  recent ;  Y.BB.  20,  21 
Ed.  I.  (R.S.)  462 ;  9  Ed.  IV.  Mich.  pi.  10  per  Littleton.  As  yet  the  limits  of  the 
right  to  abate  are  not  very  clearly  defined ;  the  process  of  limiting  this  right  till  it 
becomes  a  remedy  of  very  exceptional  character  has  not  gone  very  far  in  this  period. 

^  L.Q.R.  xxviii  275. 

'  Britton  i  57,  116 ;  cp.  Pollock,  Torts  (5th  ed.)  362  n.  x ;  below  284  n.  6,  320. 

«  See  Y.B.  35  Hy.  VI.  Mich.  pi.  ^  per  Prisot,  C.J. 

■^  Below  312. 

8  Y.BB.  22  Hy.  VI.  Mich.  pi.  12  (p.  ?>)  per  Pole,  arg. ;  35  Hy.  VI.  Mich.  pi.  3  ; 
9  Ed.  IV.  Mich.  pi.  10. 

»Y.BB.  9  Ed.  IV.  Mich.  pi.  10;    21  Hy.  VII.  Hil.  pi.  18, 


280  CRIME  AND  TORT 

another  and  they  were  on  that  other's  land/  unless  the  wrongful 
taking  amounted  to  larceny.^  But  in  the  case  of  goods  we  must 
always  remember  that,  if  the  goods  had  been  taken  under  such 
circumstances  as  amounted  to  a  felony,  and  the  thief  had  been 
convicted,  the  right  of  recapture  was  subject  to  the  crown's  right 
to  have  these  goods  as  a  forfeiture.  It  was  only  under  special 
circumstances  that  the  rights  of  the  true  owner  overrode  the  rights 
of  the  crown.^ 

In  the  case  of  land  the  disseised  owner  could,  even  in  the 
thirteenth  century,  re-enter,  if  he  did  so  at  once,  i.e.  within 
some  four  or  five  days.^  But  we  have  seen  that  this  right  of 
re-entry  had  been  largely  extended  at  the  end  of  this  period.^ 
There  could  be  no  larceny  of  land  ;  so  that  the  right  to  re- 
enter was  not  limited,  as  in  the  case  of  goods,  by  the  paramount 
claims  of  the  crown.  It  was  found  that  the  law  allowed  dis- 
seised owners  too  large  a  licence  for  the  due  maintenance  of 
the  peace.  Therefore  the  statutes  of  forcible  entries  made 
forcible  entry  a  criminal  offence.^  The  question  of  the  effect 
of  these  statutes  upon  the  right  of  an  owner,  who  having  a 
right  of  entry,  makes  a  forcible  entry  upon  his  property,  has 
long  been  an  unsettled  question.  There  is  clear  Year  Book 
authority  to  the  effect  that  these  statutes  give  only  a  criminal 
remedy,  and  that,  as  they  do  not  affect  the  civil  remedies  of 
the  parties,  a  person  who  thus  enters  gets  legal  possession.^ 
It  follows  that,  as  the  person  thus  in  possession  is  entitled, 
the  person  ousted  cannot  get  restored  to  possession  or  recover 
damages  for  the  loss  of  possession.  Though  there  was  weighty 
authority  to  the  contrary,^  this  would  seem  to  be  right  in 
principle,  and  has  recently  been  decided  to  be  the  better  opinion.^ 

^  Higgins  V.  Andrews  (1619)  2  Rolle.  Rep.  55 ;  Bl.  Comm.  iii  5. 

2  Ibid. 

3  Vol.  ii  361 ;  below  329-331.  After  21  Henry  VIII.  c.  11,  which  introduced  the 
writ  of  restitution  after  the  thief  had  been  convicted  on  indictment,  it  was  ruled  that 
recapture  was  lawful  in  cases  where  the  writ  of  restitution  was  obtainable,  Hale, 
P.C.  i  546.  The  man  who,  knowing  of  the  felony,  *'  taketh  of  the  thief  his  goods 
again,  or  amends  for  the  same  to  favour  or  maintain  him,  that  is  not  to  prosecute 
him,"  Coke,  Third  Instit.  134,  is  guilty  of  theft  bote ;  cp.  Stephen,  H.C.L.  i  502. 

4  Vol.  ii  263  ;  cp.  Y.B.  3  Ed.  II.  (S.S.)  192.  ^  Above  278. 

^Vol.  ii  453;  in  Y.B.  21,  22  Ed.  I.  (R.S.)  556  Hyham,  arg.,  says,  "I  may 
enter  my  own  land  with  all  manner  of  arms  if  I  please ;  for  I  am  doing  no 
trespass." 

'  *'  On  aura  action  sur  le  Statute  quand  on  entre  I'ou  son  entre  n'est  congeable 
sans  parler  de  fort  main  s'il  veut,  Quod  fuH  concessum.  Mes  on  n'aura  accion 
quand  il  est  ouste  ove  fort  main  per  un  autre  quand  son  entre  fuit  congeable, 
pur  ce  que  pur  le  fort  main  le  party  convict  sera  fine  au  Roy  .  .  .  Quod  fuit 
concessum  per  touts,'*  Y.B.  9  Hy.  VI.  Trin.  pi.  12 ;  to  the  same  effect  Y.B.  15 
Hy.  VII.  Hil.  pi.  12. 

8  Newton  v.  Harland  (1840)  i  M.  and  G.  644;  Beddall  v.  Maitland  (1881) 
17  CD.  174;  Edwick  v.  Hawkes  (1881)  18  CD.  199. 

^Hemmings  v.  Stoke  Poges  Golf  Club  [1920]  i  K.B.  720,  over-ruling  the 
cases  cited  in  n.  8;  Harvey  v.  Brydges  (1845)  14  M,  and  W,  437;  Clark  and 
Lindsell,  Torts  (4th  ed.)  334-335. 


SELF-HELP  281 

The  oldest  form  of  self-help  is  the  process  of  distraint. 
The  essence  of  distraint  is,  as  Blackstone  ^  puts  it,  "  the  taking 
of  a  personal  chattel  out  of  the  possession  of  the  wrongdoer 
into  the  custody  of  the  party  injured,  to  procure  a  satisfaction 
for  the  wrong  committed."  This  expedient  is  at  once  ancient, 
common,  and,  in  early  law,  used  for  a  variety  of  different 
purposes.^  It  is  so  useful  that  it  has  maintained  its  place 
even  in  mature  legal  systems ;  but  it  has  only  maintained  its 
place  because  it  has  been  minutely  regulated.  In  consequence 
of  this  regulation  it  has  almost  ceased  to  be  a  form  of  self-help, 
and  has  risen,  even  as  in  Roman  law  the  Legis  Actiones  per 
manus  injectionem  and  per  pignoris  capionem  rose,^  to  the  dignity 
of  a  regular  legal  process.  It  is  from  this  point  of  view  that 
it  differs  from  the  forms  of  self-help  which  have  just  been  dis- 
cussed. They  are  forms  of  self-help  pure  and  simple,  deliberately 
allowed  by  a  settled  system  of  law  as  just  and  reasonable :  dis- 
traint is  a  particular  form  of  self-help  which  has  survived  from 
the  time  when  the  coercive  force  of  law  was  weak,  because  it 
has  been  broken  in  to  the  service  of  the  law  and  become  a 
useful  part  of  legal  process.  But  though  the  law  made  use  of 
distraint  as  part  of  its  process  to  enforce  appearance,*  and 
sometimes  as  a  mode  of  enforcing  obedience  to  the  orders  of 
its  courts,^  there  are  still  surviving  some  forms  of  it  which 
recall  the  days  when  it  was  the  remedy  of  the  private  person 
— when  it  was  a  form  of  self-help  pure  and  simple.  It  is 
with  these  forms  that  I  must  here  deal. 

The  two  forms  of  this  kind  of  distraint  which  have  survived 
in  the  common  law  are  (i)  distraint  damage  feasant,  and  (2)  the 
landlord's  right  to  distrain  for  rent  or  other  services  in  arrear. 

(i)  The  person  who  finds  beasts  on  his  land  doing  damage 
may  keep  them  or  impound  them  till  their  owner  pays  for 
the  damage  which  they  have  caused.^ 

(2)  The  second  form — the  landlord's  right  to  distrain — is 
by  far  the  most  important  of  the  two.  It  may  be,  indeed,  that 
this  right  of  the  landlord  was  not  originally  a  true  case  of  self- 
help;  for  it  may  be  a  survival  from  the  days  when  lords  of 
tenants  kept  a  court  for  those  tenants,  and  distrained  by  the 
judgment  of  that  court,''  just  as  in  much  later  days  the  court 

^Comm.  iii  6.  ^  P.  and  M.  ii  573. 

3  Moyle,  Justinian  644.  *  Below  626,  675. 

^  In  the  case  of  the  sheriff's  tourn  or  the  court  leet  certain  fines  or  amercements 
might  be  recovered  by  distress,  "in  the  nature  of  an  execution,"  Gilbert,  Distresses 
(ed.  1780)  12-15. 

6  Y.BB.  20,  21  Ed.  I.  (R.S.)  76,  78  ;  32,  33  Ed.  I,  (R.S.)  133. 

'  Cp.  Bracton  f.  157b,  •*  Cum  vero  uterque  praesens  fuerit  in  comitatu,  tunc 
dicat  captor  quod  juste  cepit  et  per  considerationem  curies  sua-,  pro  servitio,  quod 
idem  querens  et  tenens  suus  ei  debuit  et  ei  injuste  detinuit,  et  inde  poterit  vocare 
curiam  suam  ad  warrantum  si  voluerit ;  "  P.  and  M.  ii  574, 


282  CRIME  AND  TORT 

leet  distrained  for  the  amercements  inflicted  by  it.  However 
that  may  be,  the  right  continued  to  be  the  right  of  the  land- 
lord after  he  had  ceased  to  possess  or  hold  a  court.  It  became 
so  distinct  from  the  right  to  hold  a  court  that,  though  it  belonged 
to  the  landlord  qua  landlord,  it  was  denied  to  the  court  baron/ 
As  happened  in  other  cases,  what  had  at  first  been  the  right 
of  lords  high  in  the  feudal  scale  became  the  right  of  all  landlords. 
Thus  it  comes  to  be  merely  an  incident  of  the  relationship  of 
landlord  and  tenant,  and  so  much  a  part  merely  of  property 
law  that  it  can  be  given  in  certain  cases  by  the  agreement  of 
the  parties,  though  no  tenure  exists  between  them.^  Having 
been  tried,  and  found  an  efficient  remedy,  it  has  been  used, 
extended,  and  improved  by  the  legislature.^ 

We  may  regard,  then,  the  landlord's  right  to  distrain  as  a 
true  case  of  self-help.  But  because  it  is  a  case  of  self-help, 
and  a  form  of  it  which  can  be  easily  used  to  compel  almost 
any  kind  of  performance  or  even  to  gratify  spite,  the  law  has 
found  it  very  necessary  to  watch  jealously  its  exercise  and  to 
regulate  the  conditions  under  which  it  will  be  allowed.  When 
order  was  restored  after  the  Barons'  War,  one  of  the  first 
things  to  be  regulated  by  the  Statute  of  Marlborough  (1267) 
were  various  unlawful  uses  which  had  been  made  of  the  practice 
of  distraint.^  It  is  because  distraint  was  the  ready  weapon 
of  the  lord  who  wished  to  usurp  jurisdiction  and  political  power 
over  his  land  that  the  breach  of  these  rules  was  regarded  as 
an  offence  of  the  most  serious  character.^  The  lord  who  takes 
distresses  and  declines  to  give  them  up,  after  the  person  distrained 
has  offered  security  to  appear  and  contest  the  lord's  claim 
in    an   action,  has  committed   the  offence  of  Vetituni  namii — 

1  Gilbert,  Distresses  15,  16. 

2  In  the  case  of  a  rent  charge,  above  151. 

^Cp.  Bl.  Comm.  iii  7,  "For  several  duties  and  penalties  inflicted  by  special 
Acts  of  Parliament  (as  for  assessments  made  by  commissioners  of  sewers  or  for  the 
relief  of  the  poor)  remedy  by  distress  and  sale  is  given  ;  "  in  earlier  days  it  was  the 
usual  process  by  which  local  courts  enforced  penalties  for  breach  of  their  by-laws, 
vol.  ii  378  ;  for  the  later  law  as  to  distresses  for  breach  of  such  by-laws  see  Gilbert, 
Distresses  23,  24. 

^52  Henry  III.  cc.  1-4,  15,  21;  the  first  clause  tells  us  that,  "Tempore 
turbationis  nuper  in  regno  .  .  .  multi  magnates  et  alii  .  .  .  de  vicinis  suis  et  aliis 
per  seipsos  graves  ultiones  fecerunt,  et  districtiones,  quousque  redempciones  receperint 
ad  voluntatem  suam.  Et  praeterea  quidam  eorum  se  per  ministros  Domini  Regis 
justiciari  non  permittunt,  nee  sustineant  quod  per  ipsos  liberentur  districtiones,  quas 
auctoritate  propria  fecerint  ad  voluntatem  suam." 

^  Thus  in  the  Eyre  of  Kent  the  justices  were  directed  to  enquire  of  "  great 
men  and  their  bailiffs,  and  others,  the  king's  officers  only  excepted,  unto  whom 
special  authority  is  given,  which  at  the  complaint  of  some,  or  by  their  own  authority 
have  attached  others,  or  their  goods,  passing  through  their  jurisdiction,  compelling 
them  to  answer  afore  them  upon  contracts,  covenants  and  trespasses,  done  out  of 
their  power  and  their  jurisdiction,  where  indeed  such  hold  nothing  of  them,  nor 
be  within  their  franchise,"  the  Eyre  of  Kent  (S.S.)  i  45  art.  135. 


SEI.F-HELP  283 

an  offence  which  Bracton  tells  us  is  a  form  of  robbery,  and  an 
even  greater  offence  against  the 'king's  peace  than  disseisin.^ 
Thus  it  was  necessary  to  make  the  rules  which  regulated  the 
taking  of  distresses  so  severe  that  even  a  small  neglect  of  them 
exposed  the  lord  to  a  heavy  liability  which  was  analogous  to 
that  of  a  trespasser  or  a  disseisor.^  It  is  for  the  same  reason 
that  the  law  has  always  sternly  adhered  to  the  view  that  the 
things  distrained  are  merely  pledges  taken  to  compel  the  tenant 
to  satisfy  the  landlord's  claims,  and  that  they  must,  therefore, 
be  restored  when  the  claim  is  satisfied.  They  are  in  the  custody 
of  the  law ;  and  the  landlord  gains  no  possession  of  them  by 
the  taking.^  Hence  neither  trespass  ^  nor  novel  disseisin  ^  lay 
originally  against  a  person  who  wrongfully  distrained.  To  meet 
the  case  of  a  wrongful  distraint  the  law  provided  the  special 
remedy  of  replevin ;  and  this  action  became  not  only  the 
usual  action  in  which  to  settle  disputes  between  landlord  and 
tenant,  but  also  a  means  by  which  chattels  which  had  been 
seized  (even  though  not  seized  in  the  supposed  exercise  of  a 
right  to  distrain)  could  be  recovered.  The  history  of  this  action 
shows  us  very  clearly  the  manner  in  which  a  right  of  self- 
help  has  been  so  controlled  that  it  has  become  simply  a  peculiar 
form  in  which  legal  proceedings  may  be  initiated. 

Probably  from  the  time  of  Glanvil,^  and  certainly  from  the 
end  of  the  twelfth  or  the  beginning  of  the  thirteenth  century,^ 
the  plea  de  vetito  namio — the  proceeding  which  came  to  be 
known  as  the  action  of  replevin — was  a  recognized  plea  of  the 

1  f.  157b  ;  P.  and  M.  ii  575. 

2  Bracton  f.  217,  cited  P.  and  M.  ii  575;  Y.B.  3,  4  Ed.  II.  (S.S.)  195-196 
Bereford,  C.J.,  considered  that,  replevin  being  similar  to  trespass,  the  process 
should  be  capias — *'  were  it  not  every  rascal  in  the  country  might  take  his 
neighbours'  beasts  .  .  .  and  go  fleeing  from  place  to  place;"  Bl.  Comm.  iii  14, 
15,  "I  must  observe  that  the  many  particulars  which  attend  the  taking  of  a  dis- 
tress, used  formerly  to  make  it  a  hazardous  kind  of  proceeding ;  for,  if  any  one 
irregularity  was  committed,  it  vitiated  the  whole,  and  made  the  distrainors  tres- 
passers ab  initio ; "  for  the  rules  as  to  the  things  privileged  from  distress  (some 
of  which  are  very  old,  P.  and  M.  ii  575),  see  Gilbert,  Distresses  25-39;  Bl. 
Comm.  iii  7-10. 

3  P.  and  M.  ii  574;  Y.B.  12  Rich.  II.  4  per  Pynchbek,  C.B. ;  Bl.  Comm.  iii  10, 
13  ;  H.L.R.  iii  31.     He  could  not  sell  the  goods  till  1659,  Pollock,  Land  Laws,  141. 

*Ames,  Lectures  on  Legal  History  60  n.  2,  citing  Plac.  Abbrev.  265  col.  2 
(32  Ed.  I.) ;  for  the  later  change  in  the  law  on  this  point  see  below  285.  Coke's 
view,  Second  Instit.  105,  which  is  supported  by  the  Y.BB.,  see  H.L.R.  xxix  390, 
was  that  trespass  originally  lay  against  a  lord  for  an  unlawful  distress,  but  that 
it  was  superseded  by  the  remedy  provided  by  the  Statute  of  Marlborough  c.  3 ; 
the  date  at  which  trespass  became  a  common  remedy  (vol.  ii  364)  somewhat 
militates  against  this  view. 

^  The  Eyre  of  Kent  (S.S.)  iii  99-102 ;  but  see  Britton  i  281. 

^  xii  c.  12. 

''  The  plea  de  vetito  namio  is  said  to  date  from  John's  reign  in  Y.B.  30-31  Ed. 
I.  (R.S.)  222,  see  P.  and  M.  ii  576  n.  2  ;  and  cp.  Maitland,  Forms  of  Action  342. 
Possibly  it  did  not  exist  as  a  plea  of  the  crown  eo  nomine  in  Henry  II. 's  reign. 


284  CRIME  AND  TORT 

crown.^  No  doubt  it  became  a  plea  of  the  crown  because  the 
irregular  taking  of  distresses  was  a  particularly  dangerous  practice 
from  the  point  of  view  of  royal  justice.  It  was  not  only  an 
excuse  for  all  kinds  of  oppression,^  it  was  also,  as  we  have  seen, 
an  easy  and  obvious  mode  of  establishing  some  sort  of  feudal 
jurisdiction.  In  Edward  I.'s  reign,  however,  royal  justice  had 
got  the  upper  hand ;  and  we  can  see  from  the  clauses  of  the 
Statute  of  Westminster  11.  that  the  action  has  come  to  be  chiefly 
a  means  of  settling  differences  between  landlord  and  tenant.^ 
The  ordinary  course  of  the  action  was  as  follows  :  ^  The  sheriff, 
on  application  being  made  to  him  by  the  distrainee,  replevies 
the  goods,  i.e.  redelivers  them  to  the  distrainee,  upon  his  giving 
security  to  prosecute  his  action  and  to  return  the  things  dis- 
trained if  he  loses  his  action.  If  the  sheriff  could  not  replevy 
the  property  distrained  because  it  had  been  eloigned  (removed) 
by  the  distrainor,  the  distrainee  could  get  a  writ  of  Withernam 
directing  the  sheriff  to  take  an  equal  amount  of  the  distrainor's 
property,  and  to  keep  it  till  the  distrainor  restored  the  property 
which  he  had  taken. ^  The  distrainor  could  always  stop  the 
action  of  replevin  by  claiming  to  be  the  owner  of  the  goods ;  ^ 
and  as  this  claim  was  often  made  merely  to  delay  the  proceed- 
ings, the  writ  de  proprietate  probanda  was  devised  early  in  the 
fourteenth  century  which  enabled  the  sheriff  to  determine  sum- 
marily the  question  of  ownership. '^  If  the  question  of  ownership 
was  determined  against  the  distrainor  thei  goods  were  delivered 
back  to  the  distrainee.  The  latter  then  brought  his  action  of 
replevin  against  the  former.  The  former  defended  it  by  *'  avow- 
ing," i.e.  by  pleading  the  circumstances  which  showed  that  he 
had  the  right  to  distrain.     If  he  succeeded  the  court  awarded  *'  a 

1  This  is  strongly  asserted  by  Bracton  f.  155b,  "  Detentio  namii  pro  districtione 
facienda  pertinet  ad  coronam  domini  regis  et  vix  conceditur  alicui  terminandum 
praeterquam  ipsi  domino  regi  vel  justitiariis  suis ;  "  the  sheriff  holds  this  plea  as  a 
royal  justice. 

2  For  illustrations  see  H.  E.  Cam,  Vinogradoff,  Oxford  Studies  vi,  xi  163-165. 
^  13  Edward  I.  st.  i  c.  2. 

*B1.  Comm.  iii  147-150. 

^  F.N.B.  157  G,  158  A,  B ;  cp.  Bl.  Comm.  iii  148,  149  for  the  tale  of  how  Sir 
Thomas  More  puzzled  the  omniscient  German  who  offered  to  dispute  concern- 
ing "  de  omni  scibili  et  de  quolibet  ente  "  by  the  question,  "  utrum  averia  carucae 
capta  in  withernamio  sint  irreplegibilia." 

^  Y.B.  32,  33  Ed.  I.  (R.S.)  54  ;  though  possibly  there  was  some  risk  that  an  un- 
founded claim  of  ownership  might  be  met  by  an  appeal  of  larceny,  Y.B.  21,  22  Ed. 
I.  (R.S.)  106. 

'  Ames,  Lectures  in  Legal  History  68,  thought  that  the  earliest  reference  to 
the  writ  was  in  1357,  citing  Fitz.,  Ab.  Prop.  Proh.  pi.  3  ;  but  as  Mr.  Bordwell  points 
out,  H.L.R.  xxix  376,  there  is  a  reference  to  the  writ  in  1326,  Fitz.,  Ab.  Replevin 
pi.  26  ;  a  case  in  the  Eyre  of  Kent  of  1313-1314  (the  Eyre  of  Kent  (S.S.)  iii  197-198), 
which  seems  to  contemplate  the  issue  of  such  a  writ,  puts  its  date  back  still  further  ; 
the  writ  is  not  mentioned  eo  nomine,  but  the  procedure  outlined  seems  similar  to 
the  procedure  on  such  a  writ  as  described  by  Fitz.,  Ab.  Prop.  Proh.  pi.  4, 


SELF-HELP  285 

return,"  i.e.  ordered  the  goods  distrained  to  be  restored  to  him. 
If  he  failed  he  must  pay  damages  for  a  wrongful  distress. 

We  have  seen  that  at  the  end  of  the  thirteenth  century  the 
spheres  of  trespass  and  replevin  were  distinct.^  But  before  the 
end  of  the  mediaeval  period  the  action  of  trespass  was  allowed  to 
be  used  as  an  alternative  to  replevin.^  This  result  had  been 
gradually  attained  during  the  course  of  the  fourteenth  and 
fifteenth  centuries.  It  seems  to  have  been  admitted  that  this  was 
possible  in  1312-1313;^  but  in  1342-1343'*  the  question  was 
treated  as  doubtful;  and  in  1345^  the  practice  of  the  King's 
Bench  and  Common  Pleas  was  said  to  differ  upon  the  question. 
In  1406^  Gascoigne,  C.J.,  ruled  that  the  plaintiff  could  elect 
which  form  of  action  he  would  use;  and  in  1441  '^  Newton  stated 
the  law  as  finally  settled  as  follows  :  "  If  you  should  have  taken 
my  cattle  I  can  elect  to  sue  by  way  of  replevin  which  proves  that 
the  property  is  in  me,  or  to  sue  by  writ  of  trespass  which  proves 
that  the  property  is  in  the  taker."  Conversely  replevin  was 
allowed  to  be  brought  instead  of  trespass  de  bonis  asportatis} 
But  in  practice  a  form  of  trespass  was  generally  used  instead  of 
replevin ;  and  the  fact  that  replevin  might  be  used  instead  of 
trespass  was  almost  forgotten  till  the  old  learning  was  recalled 
by  some  cases  decided  in  the  earlier  half  of  the  nineteenth  cen- 
tury.^ 

At  the  latter  part  of  the  sixteenth  and  in  the  seventeenth 
and  eighteenth  centuries  the  spheres  of  replevin  and  trover  began 
to  overlap.  There  are  several  cases  at  the  end  of  the  sixteenth 
and  the  beginning  of  the  seventeenth  centuries  in  which  trover 
was  brought  by  a  plaintiff  whose  goods  had  been  distrained.  They 
were  all  decided  on  points  of  pleading  in  favour  of  the  plain- 
tiff   for    reasons   which    show    that    it    was   difficult    to    plead 

1  Above  283. 

2  H.L.R.  iii  31-33,  Essays  A.A.L.H.  iii  553  and  cases  there  cited. 
8Y.B.  6  Ed.  II.  (S.S.)  147  ^^r  Bereford,  C.J. 

4Y.B.  17  Ed.  III.  (R.S.)  96-98.  5  Y.B.  19  Ed.  III.  (R.S.)  476. 

8  Y.B.  7  Hy.  IV.  Mich.  pi.  5  (p.  28). 

'  "  Si  vous  eussiez  pris  mes  averia  est  en  ma  volonte  a  suer  replevin  que  prouve 
que  le  propriete  est  en  moy,  ou  a  suer  breve  de  trespass  que  prove  que  le  propriete  est 
en  celui  qui  prist,"  Y.B.  19  Hy.  VI.  Pasch.  pi.  5. 

8  Vol.  ii  455  n.  I ;  cp.  6  Ed.  II.  (S.S.)  143,  148,  149  per  Bereford,  C.J. ;  Y.B. 
6  Hy.  VII.  Mich.  pi.  4  (p.  8)  per  Vavisor  ;  H.L.R.  xi.  374-375,  Essays  A.A.L.H.  iii 
428,  431-432. 

^  Shannon  v.  Shannon  (1804)  i  Sch.  and  Lef.  327 ;  George  v.  Chambers  (1843) 
II  M.  and  W.  per  Parke,  B.,  at  p.  159 ;  H.L.R.  xi  375,  Essays  A.A.L.H.  iii  431- 
432;  and  cp.  H.L.R.  iii  31,  Essays  A.A.L.H.  iii  553.  Even  Blackstone  (Comm. 
iii.  146)  seems  to, have  thought  that  it  only  lay  for  a  distrainee;  but  as  Ames  points 
out  (H.L.R.  xi  375)  there  is  a  clear  case  against  this  view  in  1608,  Godbolt  150  pi. 
195  ;  cp.  Comyn,  Digest,  Replevin  A ;  Gilbert,  Distress  (4th  ed.)  80  ;  i  Co.  Rep. 
54a  note,  where  it  is  said  that,  '*  a  replevin  is  a  remedy  which  lies  to  recover  damages 
for  an  immediate  wrong  without  force,  in  taking  and  detaining  cattle  and  goods 
whether  by  distress  for  rent  damage  feasant  etc.  or  otherwise.'" 


286  CRIME  AND  TORT 

a  distraint  duly  effected  as  a  defence  to  such  an  action.^  In 
1600  there  is  a  dictum  that  trover  or  replevin  will  lie  against  a 
trespasser  who  has  taken  goods  ;^  and  in  161 1  it  was  assumed 
that  trover  would  lie  for  a  wrongful  distress.^  This  was  finally 
decided  to  be  good  law  by  Lord  Mansfield  in  1770  ;^  and  so,  as 
Ames  has  pointed  out,^  and  as  the  cases  recognize,^  we  get  a 
doctrine  applied  to  the  taking  of  chattels  somewhat  like  the 
doctrine  of  disseisin  at  election  as  applied  to  land.^  For,  as  we 
have  seen,  the  plaintiff,  if  he  brought  replevin,  elected  to  consider 
himself  still  possessed,  while,  if  he  brought  trespass  or  trover,  he 
elected  to  consider  that  he  was  dispossessed.  Conversely  replevin 
could  in  some  cases  be  brought  instead  of  trover — indeed,  Lord 
EUenborough  once  ruled  that  if  a  plaintiff  wanted  the  return  of 
his  chattel  in  specie  replevin  was  the  more  appropriate  remedy, 
for  by  bringing  trover  only  damages  could  be  got^  But  trover 
and  replevin  never  became  so  completely  convertible  as  replevin 
and  trespass.  In  one  respect  perhaps  the  scope  of  replevin  was, 
till  1770,  wider  than  that  of  trover;  for  at  least  two  cases 
recognized  (and  on  principle  rightly  recognized)  that  it  was 
not  every  case  of  wrongful  distress  which  would  support  an 
action  of  trover.^     But  in  most  respects  trover  was  much  wider 

^  Dee  V.  Bacon  (1595)  Cro.  Eliza.  435  ;  Salter  v.  Butler  Noy  46-47 ;  Agars  v. 
Lisle  (1614)  Hutton  10. 

2  Bishop  V.  Viscountess  Montague  (1600)  Cro.  Eliza.  824,  S.C.  Cro.  Jac.  50. 

3  Kenicot  v.  Bogan  (161 1)  Yelv.  198,  at  p.  200. 

*  Tinkler  v.  Poole  (1770)  5  Burr.  2657. 
■^  Essays  A.A.L.H.  iii  553. 

"Above  n.  i  ;  Y.B.  6  Hy.  VII.  Mich.  pi.  4  (at  p.  8)  Vavisor  says,  "II  poit 
estre  hors  del  properte  s'il  voile  ;  come  on  poit  estre  disseisi  de  rents,  s'il  voile 
per  porter  del  Assise  mes  ceo  est  a  son  volunte.  Et  issint  est  des  biens  prises,  on 
poit  devester  le  properte  hors  de  luy,  s'il  voile,  per  proces  de  action  de  Trespass,  on 
demander  properte  per  Replevin  ou  brief  de  detinue,  et  issint  doncque  s'il  soit  a  son 
pleasure ;  "  so  in  Bishop  v.  Viscountess  Montague  {1600)  Cro.  Eliza.  824  it  was  said, 
•'  Although  Trespass  lies  yet  he  may  have  this  action  (Trover)  if  he  will,  for  he  hath 
his  election  to  bring  either.  And  as  he  may  have  detinue  or  replevin  for  goods  taken 
by  a  trespass,  which  affirms  always  property  in  him  at  his  election,  so  he  may  have 
this  action  ;  "  cp.  H.L.R.  xxix  386. 

'  For  the  doctrine  of  disseisin  at  election  see  Bk.  iv.  Pt.  II.  c.  i  §  2. 

8  Dore  V.  Wilkinson  (1817)  2  Starkie  288. 

*  Mires  v.  Solebay  (1677)  2  Mod.  at  p.  244  ;  Etriche  v.  An  Officer  of  the  Revenue 
(1720)  Bunbury  67 ;  S.C.  sub.  nom.  Israel  v.  Etheridge  (1721)  ibid  80 ;  the  latter 
case  was  characterized  as  "  a  very  loose  note  "  by  Lord  Mansfield,  and  overruled  by 
him  in  Tinkler  v.  Poole  (1770)  5  Burr.  2657,  and  the  former  case  was  not  cited ;  but 
Lord  Kenyon  in  Shipwick  v.  Blanchard  (1795)  6  T.R.  298,  though  he  had  some 
doubts  as  to  whether  Trover  ought  to  lie  in  these  cases,  followed  Tinkler  v.  Poole  ;  in 
Clowes  V.  Hughes  (1870)  L.R.  5  Exch.  160  no  objection  was  taken  to  the  form  of  the 
action.  The  law  therefore  is  settled,  but  it  is  not  generally  the  case  that  the  taking  of  a 
distress  is  a  conversion  ;  the  court  truly  said  in  Mires  v.  Solebay,  '•  the  defendant  could 
be  guilty  of  no  conversion,  unless  the  driving  the  cattle  by  virtue  of  the  replevin 
would  make  him  guilty ;  but  at  that  time  the  sheep  were  in  custodia  legis  and  the 
law  did  then  preserve  them  so  that  no  property  can  be  changed  ;  and  if  so,  there 
could  be  no  conversion;  "  and  Holt,  C.J.,  seems  to  have  been  of  the  same  opinion, 
since  he  said  by  way  of  dictum  in  Hartfort  v.  Jones  (1699)  i  Ld.  Raym.  393, 
'•  Though  the  detainer  [by  a  person  entitled  to  a  lien]  be  lawful  yet  it  does  not  amount 


TREASON  287 

than  replevin.  Replevin  would  lie  only  against  a  defendant 
who  had  taken  the  goods,  and  not  against  a  bailee  or  other 
person  to  whom  the  taker  had  conveyed  them.^ 

But  we  must  return  from  this  digression  into  the  law  of  pro- 
perty to  the  law  of  crime  and  tort. 

§  2.   Treason 

I  have  already  said  something  of  the  main  outlines  of  the 
law  of  treason  during  this  period.  We  have  seen  that  it  attained 
to  a  statutory  definition  in  1352 — at  an  earlier  period  than  any 
other  criminal  offence — by  reason  both  of  its  political  importance 
and  of  its  importance  in  the  land  law ;  ^  and  the  fact  that  it  was 
defined  thus  early  caused  many  archaic  traits  to  be  preserved  in 
the  statute.^  The  fact  that  the  statute  itself  was  a  limiting  and 
defining  statute,  if  it  has  caused  its  provisions  to  be  often 
neglected  in  times  of  excitement,  has  caused  also  a  constant 
tendency  all  through  our  legal  history  to  revert  to  its  provisions 
in  quieter  times.  It  is  chiefly  for  this  cause  that  it  is  still  the 
foundation  of  the  law  of  treason.  In  this  section  I  shall  endea- 
vour to  give  a  brief  account  of  (i)  some  of  the  earlier  ideas  upon 
the  subject  of  treason  which  we  see  embodied  in  the  statute,  and 
(2)  the  mode  in  which  the  statute  was  applied  in  this  period. 

(i)  The  earlier  ideas.* 

In  the  provisions  of  Edward  III. 's  statute  we  can  see  at  least 
four  distinct  ideas  which  have  gone  to  make  up  the  offence  of 
treason :  (a)  the  idea  of  treachery  ;  (d)  the  idea  of  a  breach  of 
the  feudal  bond  ;  (c)  the  idea  that  the  duty  to  king  as  king  is 
higher  than  the  feudal  duty  to  a  lord  ;  (d)  an  admixture  of  ideas 
taken  from  the  Roman  law  of  /cFsa  majestas. 

(a)  The  idea  that  treachery  is  a  peculiarly  heinous  offence 
appears  as  far  back  as  Alfred's  law  ;  and  it  was  perhaps  helped 
by  the  recollection  that  it  was  the  sin  of  Judas  Iscariot.^  The 
idea  survived  in  the  fact  that  an  indictment  for  treason  always 

to  a  conversion,  no  more  than  a  distress  for  rent ;  "  for  as  Rolfe,  B.,  said  in  Fouldes  v. 
Willoughby  (1841)  8  M.  and  W.  at  p.  550,  *•  in  every  case  of  trover  there  must  be  a 
taking  with  the  intent  of  exercising  over  the  chattel  an  ownership  inconsistent  with 
the  real  owner's  right  of  possession." 

1  Mennie  v.  Blake  (1856)  6  E.  and  B.  842 ;  at  pp.  847-849  the  court  seemed 
rather  to  agree  with  Blackstone's  view  (above  285  n.  9)  but  this  was  only  a  dictum  ; 
the  decision  was  that  "  replevin  was  not  maintainable  unless  in  a  case  in  which  there 
has  been  first  a  taking  out  of  the  possession  of  the  owner  ;  "  cp.  Bishop  v.  Viscountess 
Montague  {1600)  Cro.  Eliza.  824. 

2  Vol.  ii  449-450. 

3  For  a  summary  of  the  statute  see  vol.  ii  449  n.  7. 

*  For  the  best  account  of  these  ideas  see  P.  and  M.  ii  501-507  ;  for  the  general 
history  Hale,  P.C.,  i  87-252;  Stephen,  H.C.L.  ii  248-297. 
5  Vol.  ii  48. 


288  CRIME  AND  TORT 

contained  the  words  ^^ proditorie,''  and  "  contra  ligeantice  sues 
debitumr  ^  But  it  came  out  more  clearly  still  in  the  fact  that  the 
statute  recognized,  side-  by  side  with  the  offence  of  high  treason 
or  treason  to  the  king,  the  offence  of  petit  treason — "  that  is  to 
say,  when  a  servant  slayeth  his  master,  or  a  wife  her  husband,  or 
when  a  man,  secular  or  religious,  slayeth  his  prelate  to  whom  he 
oweth  faith  and  obedience."^  As  we  have  seen,  this  particular 
branch  of  treason  was  not  abolished  till  1828.^ 

(J))  The  clauses  which  make  it  treason  to  violate  *'  the  king's 
companion,  or  the  king's  eldest  daughter  unmarried,  or  the  wife 
of  the  king's  eldest  son  and  heir,"^  were  probably  due  to  the 
fact  that  these  were  peculiarly  aggravated  breaches  of  the  feudal 
bond.^  But  it  is  not  so  much  what  the  statute  contains  as  what 
it  omits  that  shows  the  influence  of  these  ideas.  As  is  well 
known,  there  is  no  mention  in  the  statute  of  a  conspiracy  to  levy 
war;  and,  as  Maitland  points  out,  this  is  probably  due  to  the 
fact  that  such  a  conspiracy  was  hardly  regarded  as  an  offence  if 
the  war  was  properly  declared.®  In  fact,  all  through  the  first 
three  centuries  after  the  Conquest  the  manifold  complications  of 
the  feudal  bond  hindered  the  development  of  a  law  of  treason. 
Many  English  barons  owed  allegiance  both  to  the  king  of  France 
and  to  the  king  of  England ;  and  the  king  of  England  himself 
had  sometimes  cause  to  know  that  he  was  a  vassal  of  the  king  of 
France.  In  case  of  war  between  England  and  France  it  was 
hardly  possible  to  deal  with  the  offences  of  such  persons  merely 
from  the  point  of  view  of  municipal  law.  An  international 
elem.ent  was  present  which  could  fairly  be  made  the  subject 
matter  of  a  treaty.^ 

ic)  These  difficulties  tended  to  disappear  when  the  kings  of 
England  lost  their  continental  possessions;  and  Edward  III. 
himself  could  deny  that  he  owed  allegiance  to  anyone,  seeing 
that  he  claimed  to  be  the  king  of  France.  But,  though  former 
English  kings  had  as  Dukes  of  Normandy  been  the  vassals  of 
the  king  of  France,  in  England  they  had  claimed  from  the  time 
of  the  Conquest  to  be  above  any  of  their  feudal  barons.     They 

1  Hale,  P.C.  i  59,  77  n.  a;  Coke,  Third  Instit.  4. 

2  25  Edward  III.  st.  5  c.  2  §  10 ;  see  Saunders  and  Browne's  Case  (1574)  Dyer 
332a. 

3  Vol.  ii  449  n.  9.  •*  §  3. 

^  P.  and  M.  ii  503.  ^  Ibid  503,  504;  below  461. 

'  For  these  difficulties  see  Hale,  P.C.  i  65-70 — as  Hale  points  out,  when  in 
1170  Henry  II.  crowned  his  eldest  son,  to  whom  the  king  of  Scots  did  homage,  we 
get  three  kings  to  whom  allegiance  was  due  in  different  degrees.  For  such  treaties 
see  ibid  69 ;  it  is  noted,  Hale,  loc.  cit.,  that  in  18  Ed.  I.  the  petition  of  the  Earl  of 
Eu  in  France  for  the  castles  of  Hasting  and  Tikehill  is  answered  by  saying  that  he 
shall  have  them  when  the  French  king  has  restored  the  possessions  in  France  of 
which  he  has  deprived  the  English  barons. 


TREASON  289 

had,  as  we  have  seen,  asserted  their  right  to  be  kings  of  subjects, 
and  not  merely  lords  of  vassals  ;  ^  and  the  victory  of  the  common 
law  over  all  its  rivals  realized  the  theories  of  the  king's  lawyers, 
that  all  political  power  flows  from  him,^  and  enabled  statutory 
force  to  be  given  to  many  of  their  ideas  touching  the  contents 
of  treason.  Hence  we  can  see  that  in  Edward  III.'s  statute  high 
treason  is  the  important  matter,  petit  treason  merely  an  archaic 
survival.  The  king  is  really  coming  to  represent  the  state.  He 
must  be  guarded  with  the  utmost  care,  and  it  must  be  made  an 
offence  not  only  to  kill  him,  but  even  to  plot  against  his  life. 
It  will  be  an  offence  to  be  adherent  to  his,  that  is  to  the  state's, 
enemies ;  to  levy  war  against  him ;  or  to  slay  his  chancellor, 
treasurer,  or  judges  whilst  acting  as  his  servants.^ 

{d)  From  the  time  of  Glanvil  the  king's  lawyers  had  imported 
a  Roman  element  into  the  law.  They  not  only  defined  as 
treasonable,  practices  which  were  obviously  dangerous  to  the 
peace  of  the  state ;  they  also  held  that  certain  kinds  of  forgery 
were  also  treason.*  To  the  Romans  "  falsifying  Caesar's  image 
was  a  kind  of  sacrilege ;  "  ^  and  to  this  idea  we  owe  the  clauses  of 
the  statute  which  make  it  high  treason  to  counterfeit  the  king's 
great  or  privy  seal  or  his  money,  or  to  bring  false  money  into  the 
realm,  knowing  it  to  be  false.® 

But  these  ideas  of  the  king's  lawyers  were  elastic ;  and  the 
victory  of  the  common  law  caused  their  elasticity  to  become 
dangerous.  We  have  seen  that  all  the  more  serious  crimes  had 
come  to  be  regarded  as  offences  against  the  king's  peace,  his 
crown,  and  dignity.'''  That  being  so,  it  was  becoming  a  little 
difficult  to  draw  the  line  between  the  mere  ordinary  felony  and 
the  crime  of  treason.  Both  were  offences  against  the  king. 
What,  it  might  be  asked,  was  the  element  which  differentiated 
treason  from  felony  ?  At  the  present  day  we  should  have  little 
difficulty  in  answering  the  question.  We  should  say  that  the 
essence  of  treason  consisted  in  the  fact  that  it  was  an  offence 
against  the  safety  or  well-being  of  the  king  as  representing  the 
safety  or  well-being  of  the  state.     We  shall  see  that  such  an 

1  Vol.  i  33-34;  above  56  n.  1.  2  Vol.  i  87-88. 

3§§  2,  4,  7  of  Edward  III.'s  statute  ;  cp.  with  the  older  authorities — Glanvil,  xiv 
I,  puts  down  as  three  of  the  heads  of  treason,  mors  regis,  seditio  regni,  seditio 
exercitus;  Bracton,  f.  ii8b,  says,  "  Habet  etiam  crimen  laesas  majestatis  sub  se 
multas  species,  quarum  una  est,  ut  si  quis  ausu  temerario  machinatus  sit  in  mortem 
domini  regis,  vel  aliquid  egerit  vel  agi  procuraverit  ad  seditionem  domini  regis,  vel 
exercitus  sui,  vel  procurantibus  auxilium  et  consilium  praebuerit  vel  consensum ;  " 
seditio  in  this  context  probably  means  "  betrayal,"  P.  and  M.  ii  501  n.  3. 

■*  Glanvil  xiv  7  ;  Bracton  f.  ii8b,  "  Continet  etiam  sub  se  crimen  laesae  majestatis 
crimen  falsi,  quod  quidem  multiplex  est :  ut  si  quis  falsaverit  sigillum  domini  regis, 
vel  monetam  reprobam  fabricaverit  et  hujusmodi ;  "  cp.  119b. 

"^  P.  and  M.  ii  503  n.  6.  « §  6.  "^  Vol.  ii  358. 

VOL.   ni.~l9 


290  CRIME  AND  TORT 

answer  would  have  been  impossible  at  this  period.^  The  idea 
that  the  king  had  two  capacities — a  natural  and  a  politic  capacity 
— was  not  clearly  grasped ;  and  the  idea  itself  had  come  to  be 
associated  with  excuses  for  treasonable  practices.  In  fact,  to 
hold  this  opinion  had  come  to  be  regarded  as  in  itself  treason- 
able. The  use  of  it  attributed  to  Piers  Gaveston  and  the  De- 
spencers  had  discredited  it ;  ^  and  it  would  almost  appear  that 
in  Edward  II. 's  reign  the  charge  of  holding  this  opinion  was  used 
for  the  purpose  of  founding  vague  charges  of  treason,  in  much  the 
same  way  as  the  charge  of  "  accroaching  the  royal  power."  But, 
as  there  was  thus  no  clear  distinction  between  treason  and  felony, 
it  was  the  easier  to  extend  the  scope  of  treason ;  and  there  were 
good  reasons  why  the  king  should  desire  to  see  this  extension. 

The  vagueness  of  the  offence  made  it  a  valuable  political 
weapon.  It  was  easier  to  get  a  conviction  for  treason  than  for 
any  of  the  more  precisely  defined  felonies ;  and  in  case  of  such 
conviction  it  was  coming  to  be  thought  that  no  clergy  could  be 
pleaded.^  The  consequences  of  a  conviction  were  far  more 
serious,  and,  as  we  have  seen,  more  profitable  to  the  king.^ 
Therefore  we  are  not  surprised  to  find  cases  in  which  the  law 
was  extended  for  these  various  reasons.  The  case  of  Segrave 
(1305),  who  had  deserted  the  king's  army  and  sued  in  the  court 
of  the  French  king,  thus  subjecting  the  king  and  kingdom  of 
England  to  France;^  the  cases  of  the  Despencers  (1321  and 
1326)  and  of  Roger  Mortimer  (1331)  who  were  convicted  of 
accroaching  the  royal  power;*'  the  case  of  Matravers  (1330),  who 
was  convicted  of  treason  because  he  falsely  told  Edmund,  Earl 
of  Kent,  the  half-brother  of  Edward  II.,  that  Edward  II.  was 
still  alive,  and  thereby  induced  him  to  commit  treason  by  raising 
an  army  for  his  deliverance  '^ — are  all  illustrations  of  the  manner 
in  which  the  law  of  treason  was  stretched  for  political  objects.^ 

1  Below  466-467. 

2  Chronicles  of  Edward  I.  and  II.  (R.S.)  i  153;  ii  33,  65;  Statutes  (R.C.)  i  182; 
the  argument  was  that  "homagium  et  sacramentum  ligiantiae  potius  sunt  .  .  . 
ratione  coronae  quam  personae  regis  .  .  .  ,"  hence  "si  rex  aliquo  casu  erga  statum 
coronae  rationabiliter  non  se  gerit,  ligii  sui  per  sacramentum  factum  coronas  regem 
reducere  et  coronas  statum  emendare  juste  obligantur  "...  and,  as  the  forms  of 
law  are  not  much  use  in  such  a  case,  "  judicatum  est  quod  error  per  asperitatem 
amoveatur,"  because  the  king's  subjects  must  maintain  the  law;  for  a  similar  idea 
in  Magna  Carta  and  Bracton  see  vol.  ii  213,  255  ;  cp.  Harcourt,  the  Steward  and  Trial 
of  Peers  152-153;  Coke,  Calvin's  Case  {1608)  7  Rep.  iia,  calls  this  opinion 
"  damnable  and  damned  ;  "  see  below  466. 

3  Below  297,  299. 

*  For  the  punishment  of  treason  see  P.  and  M.  ii  499 ;  for  the  forfeiture  which 
was  the  consequence  of  it  see  above  70. 

i' Parliament  Roll  1305  (R.S.)  255;  Hale,  P.C.  i  79;  Stephen,  H.C.L.  ii  245. 

6Hale,  P.C.i8o,  81.  'Ibid  82. 

8  The  Despencers  in  their  answer  in  132 1  say,  '*  De  cunctis  sibi  oppositis  nihil 
tangit  feloniam  aut  proditionem  ;  "  and  that  *•  omnes  illi,  per  quos  judicium  exstitit 
ordinatum,  fuerunt  capitales  inimici." 


TREASON  291 

The  case  of  Gerberge  (1348),  who  was  convicted  of  treason  for 
highway  robbery,^  and  the  case  of  John  at  Hill  (1349),  who  was 
convicted  for  the  murder  of  a  king's  messenger,'-^  are  illustrations 
of  the  extensions  of  treason  for  other  objects.^ 

It  was  doubtless  with  these  cases  in  their  minds  that  the 
framers  of  Edward  III.'s  statute  set  to  work.  Except  in  the  one 
case  of  plotting  the  king's  death,  they  declined  to  make  any  mere 
conspiracies  treason — they  required  an  overt  act;  and  they 
expressly  enacted  that,  "if  any  man  ride  armed  covertly  or 
secretly  with  men-of-arms  against  any  other  to  slay  him  or  rob 
him  or  take  him  or  retain  him  till  he  have  made  fine  or  ransom," 
it  is  not  treason ;  ^  they  expressly  guarded  the  lord's  right  to 
escheat  in  cases  of  petit  treason  ;  ^  and  they  attempted  to  guard 
against  the  creation  of  fresh  treasons  by  judicial  interpretation  by 
a  clause  which  required  that  the  statute  should  be  interpreted 
not  by  the  judges,  but  by  Parliament.^ 

We  must  now  turn  to  the  law  of  treason  as  administered 
under  the  statute  during  this  period. 

(2)  Treason  in  the  fourteenth  and  fifteenth  centuries. 

The  reign  of  Richard  II.  was  productive  of  new  treasons. 
As  Hale  says,^  **  Things  were  so  carried  by  factions  and  parties 
in  this  king's  reign  that  this  statute  was  little  observed ;  but  as 
this  or  the  other  party  prevailed,  so  the  crimes  of  high  treason 
were  in  a  manner  arbitrarily  imposed  and  adjudged  to  the  dis- 
advantage of  that  party  that  was  intended  to  be  suppressed ;  so 
that  de  facto  that  king's  reign  gives  us  as  various  instances  of  these 
arbitrary  determinations  of  treasons,  and  the  great  inconveniences 
that  arose  thereby,  as  if  indeed  the  statute  of  25  E.  3  had  not 
been  made  or  in  force."  The  judges,  at  the  king's  bidding  in 
1388,  declared  it  to  be  treason  to  impede  the  exercise  of  the 
royal  prerogative.^     As   we   have  seen,  they   were   themselves 

1  Hale,  P.C.  i  80.  2  Ibid  81. 

^  Hale  tells  us  that  Gerberge  pleaded  his  clergy,  but  was  ousted  of  it  because 
the  charge  was  treason ;  and  cp.  Y.B.  21  Ed.  III.  Trin.  pi.  16,  where  killing  a  man 
who  was  on  his  way  to  help  the  king  at  the  war  was  represented  as  treason. 

*25  Edward  III  st.  5  c.  2  §  13  ;  Hale  says,  P.C.  i  137-138,  that  "the  especial 
reason  of  the  express  adding  of  this  clause  seems  to  be  in  respect  of  that  judgment 
of  treason  given  against  Sir  John  Gerberge." 

=  §ii. 

"§12;  see  vol.  i  377-378  for  the  clause  and  the  interpretation  put  on  it;  it  is 
fairly  clear  that,  whether  it  refers  to  interpretation  by  the  whole  Parliament  or  by  the 
House  of  Lords,  the  framers  of  the  statute  were,  in  the  light  of  past  experience, 
not  inclined  to  entrust  the  manufacture  of  new  treasons  to  the  judges.  The  case  of 
John  Imperial  (1380)  was  decided  under  this  clause;  he  was  a  public  minister  who 
had  come  into  the  country  with  a  royal  safe-conduct  and  had  been  murdered.  Hale, 
P.C.  i  83,  and  vol.  ii  450,  473. 

7  P.C.  i  83. 

8  Ibid  84,  they  were  asked,  '*  Qualiter  sunt  illi  puniendi,  qui  impediverunt  regem, 
quo  minus  poterat  exercere  quae  ad  regalia  et  praerogativam  suam  pertinuerunt,"  and 
they  replied,  "  Quod  sunt  ut  proditores  etiam  puniendi." 


292  CRIME  AND  TORT 

appealed  of  treason,  under  the  general  charge  of  accroaching 
the  royal  power.^  In  1397  it  was  enacted  that  it  should  be 
treason  to  compass  or  purpose  the  death  or  deposition  of  the 
king,  or  to  render  up  one's  liege  homage,  or  to  assemble  persons 
together  and  ride  against  the  king  in  order  to  make  war  within 
the  realm,  or  to  procure  the  repeal  of  statutes  made  in  that 
Parliament.^ 

The  history  of  treason  in  this  reign  in  many  ways  anticipates 
the  growth  of  the  constructive  treasons  of  later  law,  just  as  it 
anticipates  later  absolutist  theories  of  the  prerogative.^  But  the 
new  treasons  so  created  had  but  a  short  life.  As  we  have  seen, 
they  were  repealed  in  Henry  IV. 's  reign ;  and  the  law  laid  down 
in  the  statute  of  Edward  III.  was  again  restored.^  All  through 
this  period  that  statute  continued  to  contain  the  law  of  treason. 
The  other  statutory  additions  were  insignificant.^  As  I  have 
said,  the  time  was  not  yet  ripe  for  the  later  growth  of  constructive 
treason.  In  order  that  it  may  be  possible  to  extend  this,  the 
most  important  branch  of  the  criminal  law,  by  judicial  construc- 
tion, there  must  be  a  law-abiding  habit  in  the  nation ;  and  this 
in  the  fifteenth  century  was  conspicuous  by  its  absence.  Acts 
of  attainder  were,  as  we  have  seen,  a  more  congenial  weapon. 
But  we  can  see  at  the  end  of  this  period  a  certain  development 
in  the  doctrines  relative  to  the  prerogative.^  The  king  was 
coming  to  be  regarded  less  exclusively  as  a  person,  more  as  the 
official  at  the  head  of  the  state.  It  is  when  the  prerogative, 
having  restored  law  and  order,  had  become  the  most  important 
power  in  the  state,  and  when  legal  doctrine  had  invested  it  with 
attributes  of  a  superhuman  character,  that  we  get  the  con- 
ditions which  will  make  for  a  large  judicial  expansion  of  the  law 
of  treason.  As  at  the  end  of  this  period  we  are  but  at  the 
beginning  of  this  development  of  the  prerogative,  we  do  not  see 
many  signs  of  the  corresponding  development  in  the  law  of 
treason. 

We  do,  however,  see  some  signs  of  the  manner  in  which  it 
will  be  possible  to  expand  it.  Edward  III.'s  statute  had  declared, 
not  that  killing  the  king,  but  that  compassing  or  imagining  his 
death,  was  treason.  In  other  words,  it  had  made  the  essence  of 
this  species  of  treason  not  the  act  of  killing  but  the  intention 
to  kill.'''  We  shall  see  that  in  the  latter  half  of  the  fourteenth 
century  certain  judges  were  inclined  to  take  the  will  for  the  deed 

^  Vol.  ii  560.  2  Ibid  450.  3  Ibid  414. 

4  Ibid  450.  0  Ibid.  «  Below  463-468. 

'  '•  Done  il  fuist  demand  si  on  sera  mort  pur  chose  que  il  ne  jamais  fist.  Newton 
dit  ouy,  que  on  sera  mort,  trait,  pend,  et  disclos  pur  chose  que  il  ne  jamais  est  fait  ny 
consentant  ny  aidant.  Come  si  on  en  son  fame  (?  ame)  imagine  la  mort  le  Roy,  et 
ne  ad  fait  plus,  pur  cet  imaginacion  il  sera  mort  come  devant,"  Y.B.  ig  Hy.  VI. 
Mich.  pi.  103. 


BENEFIT  OF  CLERGY  293 

and  punish  felonious  intentions,  though  no  act  was  done.^  If 
this  was  possible  in  the  case  of  felony,  much  more  was  it  likely 
that  the  judges  would,  from  motives  of  public  policy,  give  a 
wider  construction  to  the  words  of  Edward  III.'s  statute,  and 
declare  to  be  treason  any  intention  which  pointed  at  the  death 
or  deposition  of  the  king,  however  manifested.  There  are  a 
number  of  mediaeval  precedents  from  Henry  IV.,  Henry  VI., 
and  Edward  IV.'s  reigns  which  seem  to  show  that  the  judges 
were  inclined  to  take  this  view,  and  to  hold  that  mere  words 
which  showed  such  intentions  were  treasonable.^  In  some  of 
them  no  doubt  other  overt  acts  were  joined  to  the  speaking  of 
words ;  but  in  several  the  mere  speaking  of  words  seems  to  have 
been  adjudged  to  be  treasonable.'^  We  shall  see  that  in  the 
seventeenth  century  it  was  held  that  the  mere  speaking  of  words 
could  not  amount  to  treason ;  *  but  we  shall  see  also  that,  just 
as  the  wording  of  Edward  III.'s  statute  had  made  these  mediaeval 
decisions  possible,  so  that  same  wording  was  in  the  sixteenth 
and  seventeenth  centuries  the  basis  on  which  was  erected  the 
modern  doctrine  of  constructive  treason.^  These  mediaeval  de- 
cisions cannot  be  regarded  as  the  basis  of  that  doctrine.  They 
seem  rather  to  be  a  different  manifestation  of  a  similar  idea  ;  and 
they  may  by  suggestion  have  helped  the  judges  to  arrive  at  it. 

We  must  now  turn  from  treason  to  the  felonies  and  other 
lesser  wrongs  to  person  and  property.  But,  before  I  discuss  the 
history  of  these  different  offences,  I  must  deal  with  two  topics 
which  are  important  chiefly  in  connection  with  the  law  as  to 
felony — firstly,  Benefit  of  Clergy,  and  Sanctuary  and  Abjuration ; 
and  secondly.  Principal  and  Accessory. 

§  3.  Benefit  of  Clergy,  and  Sanctuary 
AND  Abjuration 

Benefit  of  Clergy  and  the  institution  of  Sanctuary  and  Ab- 
juration are  the  two  most  important  instances  in  which  ecclesi- 
tastical  law  influenced  the  mediaeval    criminal  law.     Benefit  of 

^  Below  373  n.  4. 

2  These  cases  are  noted  and  discussed,  and  the  records  in  two  of  them  are  given 
an  article  by  Isobel  D.  Thornly,  E.H.R.  xxxii  556-561 ;  for  other  cases  see  Hale, 
*.C.  i  111-115;  and  the  collection  of  precedents  in  Cro.  Car.  118-261. 

^See  e.g.  Cro.  Car.  121.  The  accused  had  not  only  uttered  words,  but  had 
ilculated  the  king's  nativity  and  had  published  seditious  ballads;  cp.  E.H.R.  xxxii 

J56-557. 

-•Bk.  ivPt.  II.  c.  5§  T. 

'*Ibid.  I  cannot  agree  with  the  view  put  forward  in  E.H.R.  xxxii  556-557  that 
le  mediaival  decisions  were  founded  on  the  theory  that  treason  could  be  committed 
words  at  common  law,  and  that  Edward  III.'s  statute  had  not  superseded  the 
)mmon  law ;  this  seems  to  me  to  be  contrary  to  the  whole  history  of  the  law  of 
reason  since  the  statute,  and  a  wholly  unnecessary  supposition  in  view  of  the  wording 
~  the  statute. 


294  CRIME  AND  TORT 

Clergy  was,  in  the  earlier  part  of  the  Middle  Ages,  the  privilege 
of  the  ordained  clerk  accused  of  felony ;  but  it  was  ceasing  to  be 
merely  this  at  the  latter  part  of  the  mediaeval  period  ;  and  it 
only  secured  the  prolongation  of  its  life  till  the  nineteenth 
century  by  becoming  a  clumsy  set  of  rules  which  operated  in 
favour  of  all  criminals  to  mitigate  in  certain  cases  the  severity 
of  the  criminal  law.  The  institution  of  Sanctuary  and  Abjuration 
existed  for  the  benefit  of  all  persons  except  clerks.  It  was 
wider  in  its  extent  than  Benefit  of  Clergy  in  that  it  applied  to 
a  greater  variety  of  cases  of  wrongdoing;  and  it  was  a  local 
rather  than  a  personal  privilege.  Like  Benefit  of  Clergy,  it  was 
radically  modified  in  later  law ;  and,  because  it  was  thus  modified, 
it  secured  a  new  lease  of  life.  But  even  in  its  modified  form  it  gave 
rise  to  many  abuses ;  public  opinion  in  many  countries  turned 
against  it ;  and  so  it  was  abolished  some  two  centuries  before 
the  Benefit  of  Clergy. 

Benefit  of  Clergy 

As  the  result  of  Becket's  murder  the  royal  courts  had  been 
obliged  to  abandon  their  claim  to  try  and  punish  a  clerk  who  was 
guilty  of  felony;  and  this  abandonment  gave  rise  to  the  "  Benefit 
of  Clergy."^  Thus  it  happened  that  *'an  ordained  clerk  who 
commits  any  of  those  grave  crimes  that  are  known  as  felonies, 
can  be  tried  only  in  an  ecclesiastical  court,  and  can  be  punished 
only  by  such  punishment  as  that  court  can  inflict."^  This  benefit 
of  clergy  had  a  long  and  curious  history ;  and,  in  the  course  of 
it,  it  completely  changed  its  meaning.  It  ceased  to  be  a  special 
privilege  of  the  clergy,  and  became,  as  I  have  said,^  a  complicated 
series  of  rules  exempting  certain  persons  from  the  death  penalty 
incurred  by  those  found  guilty  of  certain  felonies.*  In  this  sec- 
tion I  propose  to  trace  the  history  of  this  transformation.  We 
shall  see  that  in  the  thirteenth  century  it  was  really  a  clerical 
privilege,  and  to  a  large  extent,  it  retained  its  original  character 
all  through  the  Middle  Ages.  But  in  consequence  mainly  of  the 
growing  strength  of  the  royal  courts,  we  can  already  see  signs,  at 
the  latter  part  of  the  mediaeval  period,  of  a  change  in  its  character. 
It  is  not,  however,  till  the  sixteenth  century  that  it  began  to  lose 
its  original  character  of  a  privilege  of  the  clergy.  This  change 
was  due  mainly  to  the  action  of  the  legislature ;  and  a  series  of 
statutes   of  the  two    following  centuries    finally  completed    the 

^  See  vol.  i  615  for  some  account  of  this  controversy. 

2  P.  and  M.  i  424.  3  Vol.  i  615-616. 

^  Till  the  beginning  of  the  nineteenth  century  nearly  all  felonies  were  punishable 
with  death ;  the  only  exceptions  were  petty  larceny  (below  366)  and  mayhem  (below 
316-317);  see  Stephen,  H.C.L.  i  463,  471. 


BENEFIT  OF  CLERGY  295 

change,  and  made  it  a  clumsy  and  intricate  set  of  rules  which 
operated  to  modify  in  a  very  unsatisfactory  manner  the  undue 
severity  of  the  criminal  law.  It  will  be  necessary  therefore  to 
deal  separately  with  its  mediaeval  and  its  later  history. 

Mediceval  history. 

In  the  first  place,  I  shall  describe  shortly  the  nature  of  the 
benefit  of  clergy  in  the  thirteenth  century,  and  secondly  the 
modifications  which  were  made  in  the  two  succeeding  centuries. 

(i)  The  thirteenth  century. 

We  must  consider  (i)  the  procedure  when  clergy  was  claimed  ; 
(ii)  the  manner  in  which  the  church  dealt  with  its  criminals ;  (iii) 
the  persons  who  could  claim  the  privilege ;  and  (iv)  the  cases  in 
which  it  could  not  be  claimed. 

(i)  At  the  beginning  of  the  thirteenth  century  a  clerk  arrested 
on  a  charge  of  crime  must  be  delivered  up  to  the  bishop  if  he 
demands  him,  and  the  bishop  is  bound  under  a  heavy  penalty  to 
produce  him  before  the  itinerant  justices.^  When  the  justices 
come,  and  the  clerk  is  brought  before  them,  he  does  not  answer 
the  charge,  but  pleads  his  clergy,  and  the  official  of  the  bishop 
demands  him  as  a  clerk.  He  is  then  delivered  to  the  bishop,  and 
no  enquiry  takes  place  in  the  king's  court  as  to  his  guilt.^  But 
before  the  end  of  Henry  III.'s  reign  the  king's  court,  before  the 
clerk  is  delivered  up,  takes  an  inquest  as  to  his  guilt.^  This 
change  may  be  due  partly  to  the  view  put  forward  by  Bracton 
that  the  king's  court  can  try  the  clerk ;  but  that  it  must,  if  he 
was  convicted,  hand  him  over  to  the  bishop  that  he  may  inflict 
the  punishment  of  degradation  which  the  lay  court  is  incompetent 
to  inflict.'^  Bracton's  theory  was  not  completely  accepted,  for,  as 
Maitland  points  out,^  this  inquest  taken  by  the  king's  court  is 
not  a  trial.  It  merely  ascertained  the  view  of  the  royal  court  as 
to  the  clerk's  guilt  or  innocence  on  the  evidence  before  it ;  and 
it  was  for  that  reason  that  the  taking  of  such  an  inquest  was 
allowed  to  be  compatible  with  a  plea  of  clergy.^  If  the  inquest 
thinks  the  accused  guilty  he  is  delivered  to  the  bishop  as  guilty, 
if  it  thinks  him  not  guilty  he  is  delivered  to  him  as  not  guilty. 
If  he  is  delivered  as  not  guilty  his  lands  and  goods,  if  they  have 

^  P.  and  M.  i  424 ;  but  a  man  arrested  in  a  liberty  with  stolen  property  on  him 
must  be  sent  to  the  king's  prison,  though  claimed  by  the  ordinary,  apparently  because 
a  franchise  court  cannot  allow  such  a  claim,  the  Eyre  of  Kent  (S.S.)  i  148. 

2  P.  and  M.  i  424-425,  citing  Bracton  f.  123b. 

3  Ibid. 

*  P.  and  M.  i  429,  citing  Bracton  if.  401,  401b,  407,  411. 
■^Ibid  425. 

8 The  Eyre  of  Kent  (S.S.)  i  iig  per  Bereford,  C.J. ;  at  this  period  a  man  could 
not  plead  not  guilty,  take  his  trial,  and  then,  if  convicted,  plead  his  clergy,  below  298. 


296  CRIME  AND  TORT 

been  seized,  will  be  at  once  restored ;  and  if  he  is  delivered  as 
guilty,  they  will  be  retained  till  the  result  of  the  trial  in  the 
ecclesiastical  court  is  known. ^ 

(ii)  We  know  little  of  the  manner  in  which  the  church  dealt 
with  its  criminals.  But  "  we  have  reason  to  believe  that  before 
the  end  of  the  thirteenth  century  its  procedure  in  criminal  cases 
was  already  becoming  little  better  than  a  farce."  ^  It  never 
adopted  the  new  inquisitorial  procedure  of  the  canon  law,^  but 
continued  to  employ  the  old  fashioned  compurgation.^  So  in- 
adequate a  method  was  this  to  secure  convictions  that  the  royal 
courts  sometimes  adopted  the  device  of  handing  over  a  clerk 
absque  purgatione — that  is,  they  ordered  that  the  clerk  should  not 
be  allowed  to  clear  himself  by  compurgation.^  "  In  these  cases 
if  the  ordinary  admitted  him  to  his  purgation,  he  was  fineable 
for  it  as  a  great  misdemeanour,  and  the  party  delivered  by  such 
purgation  shall  be  again  committed  to  prison."^  In  1350  the 
Archbishop  of  Canterbury  had  promised  the  king  that  he  would 
make  an  ordinance  for  the  safe  keeping  and  due  punishment  of 
clerks  delivered  to  the  ordinaries  "so  that  no  clerk  shall  take 
courage  to  offend  for  default  of  correction;"'^  and  there  is  no 
doubt  that  the  ecclesiastical  courts  could  sentence  to  imprison- 
ment for  life  or  to  corporal  punishment  short  of  death  if  the 
clerk  failed  to  clear  himself^  But  it  is  quite  clear  that  in  the 
ecclesiastical,  as  in  other  courts,^  such  a  failure  was  rare,  and  so 
the  clerks  went  unpunished.  ^^ 

(iii)  The  only  persons  who  could  claim  the  privilege  were 
ordained  clerks,  monks,  and  nuns.^^  At  this  period  the  claimant 
must  prove  that  he  was  an  ordained  clerk  by  the  production  of 
the  bishops  letters  of  ordination.  The  mere  claim  of  the  ordinary 
without  this  proof  was  not  sufficients^  Because  the  privilege  was 
really  the  privilege  of  the  ordained  clerk  no  woman  (other  than 
a  nun)  could  claim  it ;  ^^  and  for  the  same  reason  it  was  possible 
for  the  church    by  its  legislation  to  exclude   persons  from  the 

^  P.  and  M.  i  425  ;  see  the  Eyre  of  Kent  (S.S.)  i  107,  141,  154. 

2  P.  and  M.  i  426. 

3  For  this  see  Bk.  iv  Pt.  I.  c.  4.  *  For  this  see  vol.  i  305-308. 

^  An  instance  of  a  delivery  absque  purgatione  will  be  found  in  Y.B.  12  Rich.  II, 
40;  it  is  said  in  the  Eyre  of  Kent  (S.S.)  i  83  Ixxv  that  a  convicted  clerk  who  was  a 
monk  was  never  admitted  to  purge  himself;  for  other  cases  where  a  clerk  was  de- 
livered absque  purgatione  see  Hale,  P.C.  ii  384-385. 

6  Ibid  329.  '^  25  Edward  III.  st.  3  c.  4. 

8  P.  and  M.  i  427-428.  ^  Vol.  i  306. 

^0  P.  and  M.  i  427-428.  ^^  Ibid  428  ;  as  to  the  nun  see  ibid  n.  2. 

12 The  Eyre  of  Kent  (S.S.)  i  149 — "The  Justices  must  ask  the  ordinary  who 
claims  him  where  he  was  ordained,  and  if  he  have  letters  of  orders ;  notwithstanding 
that  the  ordinary  claims  him  as  a  clerk ;  "  it  would  seem  too  that  the  person  claiming 
on  behalf  of  the  ordinary  must  produce  authority  not  only  to  claim  the  accused  but 
also  to  receive  him,  ibid  123. 

13  Stephen,  H.C.L.  i  461. 


BENEFIT  OF  CLERGY  297 

privilege.  Thus  at  the  Council  of  Lyons  the  *'bigamus,"  that 
is  the  man  who  has  married  a  second  wife,  or  who  has  married 
a  widow,  was  excluded  from  the  privilege ;  ^  and  this  rule  was 
received  in  England  and  given  statutory  force  in  1276.^ 

(iv)  Before  the  end  of  the  thirteenth  century  the  process  of 
excluding  certain  offences  from  the  benefit  of  clergy  had  begun. 
Henry  II.  had  excluded  offences  against  the  forest  law;^  and, 
after  considerable  opposition^  on  the  part  of  the  clergy,  minor 
offences — transgressiones — were  excluded  by  the  beginning  of 
Edward  I.'s  reign, ^  As  it  is  from  these  transgressiones  that  the 
misdemeanours  of  our  modern  law  originate,  it  followed  that  the 
benefit  of  clergy  never  applied  to  misdemeanours.  It  was  com- 
ing to  be  thought  that  the  treasons  which  directly  concerned  the 
king  were  also  excluded.^  But  we  have  seen  that  in  the  thir- 
teenth century  the  offences  included  within  the  scope  of  treason 
were  not  accurately  defined  ;  ^  and  so  it  was  not  till  Edward  II I.'s 
reign  that  the  rule  excluding  treason  was  finally  settled.^ 

(2)   The  fourteenth  and  fifteenth  centuries. 

During  these  centuries  three  tendencies  are  apparent.  Firstly, 
the  privilege  was  extended  to  persons  who  were  not  ordained ; 
secondly,  the  control  of  the  royal  courts  both  over  the  conditions 
under  which,  and  of  the  procedure  by  which  it  was  claimed,  was 
enlarged ;  and  thirdly,  additional  offences  were  excluded  from  it. 

(i)  By  the  statute  pro  clero  of  1350^  the  privilege  was 
extended  to  secular  as  well  as  religious  clerks,  i.e.  to  persons  such 
as  door-keepers,  readers  or  exorcists,  who  merely  assisted  the 
clergy  in  the  services  of  the  church. ^^  It  seems  to  have  been  in 
consequence  of  this  statute  that  the  privilege  was  later  extended 
to  all  who  could  read.  But  this  extension  is  connected  with  the 
greater  control  assumed  by  the  royal  courts  over  the  conditions 
under  which  the  privilege  could  be  claimed. 

(ii)  We  have  seen  that  all  through  this  period  the  royal  courts 
kept  a  very  strict  control  over  the  ecclesiastical  courts. ^^  This  led 
them  to  assume  control  over  the  question  whether  the  person 

1  P.  and  M.  i  428. 

24  Edward  I.  st.  3  c.  5 ;  see  Y.B.  30,  31  Ed.  I.  (R.S.)  530;  the  Eyre  of  Kent 
(S.S.)  i  140-141. 

^  P.  and  M.  i  429. 

^  For  the  controversy  over  this  question  see  ibid  430  n.  i. 

''Hale,  P.C.  ii  325,  citing  a  case  of  7,  8  Ed.  I. 

"  P.  and  M.  i  429 ;  probably  a  distinction  was  taken  between  those  treasons  which 
were  immediately  against  the  king's  person  and  others,  see  Hale,  P.C.  ii  326  n.  (/>). 

■^  Above  290  ;  vol.  ii  360. 

8  Hale,  P.C.  ii  326-327  cites  a  case  of  17  Ed.  II.  in  which,  as  he  says,  "  a  kind  of 
allowance  is  made  of  clergy  in  high  treason ;  "  below  299. 

*  25  Edward  III.  st.  3  c.  4. 

10  Stephen,  H.C.L.  i  461.  "  Vol.  ii  304-305. 


298  CRIME  AND  TORT 

claiming  tlie  privilege  was  entitled  to  it  or  not.  This  control 
was  an  usurpation,  for,  as  Hale  says,  this  was  originally  a  matter 
for  the  ordinary ;  ^  and  it  could  hardly  have  been  exercised  by 
the  royal  courts  till  the  privilege  had  become,  not  a  privilege  of 
the  clergy,  but  of  all  persons,  not  otherwise  disqualified,  who 
could  read.  It  is  clear  that  both  the  extension  of  the  privilege 
to  all  who  could  read  and  the  control  of  the  royal  courts  was 
complete  by  the  end  of  the  fifteenth  century.  "  If,"  says  Hale,^ 
"  the  ordinary  had  challenged  one  as  a  clerk  that  the  court  judged 
not  to  be  such,  the  ordinary  or  bishop  should  be  fined,  and  his 
temporalities  seised,^  and  the  felon  shall  be  hanged.  Again,  if 
the  ordinary  refuse  one  that  can  read,  and  return  non  legit ^  yet 
the  court  may  hear  him,  and  if  they  judge  him  to  read  sufficiently, 
the  prisoner  shall  be  saved,  notwithstanding  the  refusal  and  the 
return  of  the  ordinary."^  These  propositions  are  supported  by 
abundant  authority  from  this  period ;  and  they  show  that  the 
ordinary  is  already  taking  the  place  of  "the  minister  or  at  most 
the  assistant  to  the  court,  and  not  the  judge."  ^ 

Similarly,  the  control  of  the  royal  courts  was  tightened  by  a 
change  in  the  procedure  by  which  the  privilege  was  claimed.  At 
the  beginning  of  the  fourteenth  century  the  courts  refused  to  allow 
an  accused  person  to  plead  to  the  indictment,  and  afterwards,  if 
convicted,  to  plead  his  clergy.  When  a  person  put  himself  on 
his  country  "saving  his  clergy,"  Bereford,  C.J.,  said,  ''What  do 
you  suppose  is  the  good  of  such  a  putting  yourself  upon  the 
country  as  that  amounts  to?  Suppose  the  jury  convicts  you; 
what  will  have  been  the  use  of  trying  you  at  all  if  you  can  then 
set  up  the  plea  of  clergy?"^  But  in  1388  a  person  who  had 
pleaded  not  guilty  to  an  appeal  of  felony  was  allowed  his  clergy 
after  conviction ;  ^  and  in  the  reign  of  Henry  VI.  this  course  was 
sanctioned  by  Prisot,  C.J.^  in  the  case  of  prisoners  indicted,  and 
was  usually  pursued.  The  prisoner,  instead  of  pleading  his  clergy 
on  his  arraignment,  pleaded  not  guilty  and  was  tried ;  and  then, 
if  he  was  convicted,  he  pleaded  his  clergy.  This  course  was  said 
to  be  better  for  the  prisoner  as  he  thereby  got  a  chance  of  being 
acquitted  by  the  royal  courts.^  It  was  also  to  the  advantage  of 
the  crown  as,  on  conviction,  the  crown  got  the  goods  of  the  person 
convicted ;  and  it  was  settled  at  the  beginning  of  the  fifteenth 

iP.C.  ii38o.  2  Ibid  381. 

3  As  early  as  1313-1314  the  whole  lay  fee  of  an  ordinary  who  had  claimed  as  a 
clerk  one  who  was  really  a  layman  was  seised  into  the  king's  hand,  the  Eyre  of  Kent 
(S.S.)  i  86. 

4  Note  that  in  the  Eyre  of  Kent  (S.S.)  i  154,  before  the  king's  courts  had  assumed 
this  control,  a  clerk  who  was  not  claimed  by  the  ordinary  was  hung. 

5  Hale,  P.C.  ii38i. 

8  The  Eyre  of  Kent  (S.S.)  i  119;  see  also  ibid  112,  115,  Ixxv-lxxvii. 

7  Y.B.  12  Rich.  II.  40.  8  Hale,  P.C.  ii  378.  » Ibid. 


BENEFIT  OF  CLERGY  299 

century  that  the  goods  should  not  be  restored  upon  the  clerk's 
subsequently  making  his  purgation.^  Obviously  this  change  in 
practice  increased  the  hold  of  the  royal  courts  over  these  criminous 
clerks. 

(iii)  It  seems  to  have  been  settled  before  the  close  of  the 
fourteenth  century  that  ''  insidiatores  viarum  "  and  "  depopulatores 
agrorum  "  could  not  claim  the  benefit  of  clergy.^  It  was  said  also 
that  those  charged  with  the  wilful  burning  of  houses  were  also 
excluded  ;  but  there  seems  to  be  no  clear  proof  of  this.^  In  one 
case  reported  in  the  Eyre  of  Kent  of  13 13- 131 4  a  clerk,  who  had 
been  delivered  to  the  ordinary  as  guilty,  and  who  had  escaped 
from  the  bishop's  prison,  was  hung — *'  for  he  that  breaks  the  law 
cannot  have  the  advantage  of  the  law."  *  But  this  does  not  seem 
to  have  become  a  recognized  case  in  which  the  privilege  was  taken 
away.^  In  the  case  of  sacrilege  clergy  was  allowed,  unless  the 
ordinary  refused  to  claim  the  accused.^  In  Edward  III.'s  reign 
it  was  settled  that  those  charged  with  high  treason  as  defined  by 
Edward  III.'s  statute  could  not  claim  clergy.'^  Thus  the  privilege 
still  extended  to  petty  treason  and  to  nearly  all  the  felonies.  It 
is  not  till  the  following  period  that  the  list  of  felonies  excluded 
from  it  is  enlarged. 

The  later  history. 

It  was  inevitable  that  benefit  of  clergy  should  be  affected  by 
the  changes  in  the  relations  of  church  and  state  which  came  in 
the  sixteenth  century.  Even  before  these  changes  the  process  of 
modification  had  begun.  A  statute  of  Henry  VII. 's  reign  had 
attempted  to  restrict  its  scope  by  drawing  a  distinction  between 
those  who  were  actually  in  orders  and  those  who  were  not.  In 
the  case  of  the  former  no  change  was  made ;  but  the  latter,  on 
conviction,  were  to  be  branded,  and  disabled  from  claiming  the 
privilege  a  second  time.*^  In  Henry  VIII.'s  reign  much  more 
radical  changes  were  made.  Statutes  of  1513,^  and  1531-1532^^ 
took  away  the  privilege  in  a  large  number  of  cases  from  persons 
who  were  not  actually  in  orders ;  and  the  ordinary  was  given 
power  to  degrade  those  actually  in  orders,  and  to  hand  them  over 

1  Hale,  P.C.  ii  384.  2  ibid  333. 

^  Ibid  333,  346.  ^  The  Eyre  of  Kent  (S.S.)  i  86. 

5  It  is  not  mentioned  by  Hale,  P.C.  ii  332-333  ;  and  at  p.  385  he  points  out  that 
it  is  enacted  by  23  Henry  VIH.  c.  11  that  this  offence  was  made  felony  without 
benefit  of  clergy  for  those  not  in  orders,  and  that  those  in  orders  were  to  be  imprisoned 
absque  purgatione. 

^  Hale,  P.C.  ii  333.  ''  Ibid  332  ;  see  also  ibid  327-328. 

8  4  Henry  VII.  c  14.  »  4  Henry  VIII.  c.  2. 

1°  23  Henry  VIII.  cc.  i  and  11;  the  former  statute  excluded  from  clergy  petty 
treason,  murder,  robbery  of  holy  places,  robbery  in  dwelling  houses  and  putting  the 
owner  in  fear,  robbery  on  or  near  the  highway,  burning  of  dwelling  houses  or  barns 
where  grain  is  stored ;  the  latter  statute  deals  with  breaking  the  prison  of  the  ordinary. 


300  CRIME  AND  TORT 

to  be  hanged  like  laymen.^  By  later  statutes  the  privilege  was 
taken  away  in  certain  cases  from  all  persons  whether  in  orders  or 
not.^  If  this  course  of  legislation  had  been  pursued  benefit  of 
clergy  would  probably  soon  have  disappeared  ;  and  the  reform  in 
the  law  advocated  in  Italy  by  Fra  Paolo  Sarpi  in  1613  would 
have  been  anticipated  in  England  by  nearly  a  century.^  But  the 
reaction  against  the  severity  of  Henry  VII I. 's  statutes,  which 
produced  the  abolition  of  many  of  the  new  treasons  and  felonies 
created  in  his  reign,  produced  also  the  partial  restoration  of  the 
benefit  of  clergy,^  and  set  in  motion  the  process  which  made  it  a 
complicated  set  of  rules  which  exempted  certain  persons  from  the 
punishment  incurred  by  the  commission  of  certain  felonies. 

The  history  of  these  changes  I  shall  summarize  shortly  under 
the  following  heads :  firstly,  the  persons  who  could  claim  the 
privilege ;  secondly,  the  consequences  of  successfully  claiming 
the  privilege;  and,  thirdly,  the  growth  of  the  non-clergyable 
felonies. 

(i)  The  class  of  persons  who  could  claim  the  privilege  was 
extended,  and  distinctions  were  drawn  between  them.  In  1547  ^ 
"  bigarni,"  and  in  1692^  women  were  allowed  to  claim  it.  In 
1705  '^  the  necessity  for  reading  was  abolished.  The  distinction 
drawn  in  1489  between  those  actually  in  orders  and  those  not^ 
was  preserved;  and  in  1547  ^  a  peer  was  for  a  first  offence  given 
the  privilege  of  a  clerk  actually  in  orders. 

(ii)  We  have  seen  that  the  Act  of  1489  had  enacted  that 
every  person  not  actually  in  orders  who  was  convicted  of  a  clergy- 
able felony  should  be  branded  ;^^  and  in  1576^^  the  court  was 
given  power  to  imprison  such  persons  for  any  term  not  exceed- 
ing one  year.  In  1717^^  it  was  enacted  that  such  persons,  if 
convicted  of  clergyable  larcenies,  were  to  be  transported  for 
seven  years  instead  of  being  branded.  It  followed  that  those 
actually  in  orders  and  peers  for  a  first  offence  escaped  all  punish- 
ment, and  that  in  the  case  of  all  others  their  punishment  was 
mitigated  in  the  manner  prescribed  by  the  Acts  just  mentioned. 

^  23  Henry  VIII.  c.  i  §  4 ;  23  Henry  VIII.  c.  11  §  3  ;  see  25  Henry  VIII.  c.  3  for 
an  amending  Act  to  prevent  certain  evasions  of  these  two  Acts  by  standing  mute, 
challenging  over  twenty,  or  by  escaping  to  another  country. 

-27  Henry  VIII.  c.  17 ;  28  Henry  VIII.  c.  i  ;  32  Henry  VIII.  c.  3. 

2  For  an  account  of  his  work  on  the  Immunity  of  the  Clergy  see  Alexander 
Robertson,  Fra  Paolo  Sarpi  226-228 ;  below  307  n.  9. 

*  I  Edward  VI.  c.  12  §  9 ;  but  it  was  soon  found  necessary  again  to  deprive  certain 
offences  of  the  benefit  of  clergy,  see  2,  3  Edward  VI.  c.  33 ;  5,  6  Edward  VI.  cc.  9 
and  10. 

^  I  Edward  VI.  c.  12  §  15. 

^4  William  and  Mary  c.  9 ;  21  James  I.  c.  6  had  allowed  women  the  privilege  in 
the  case  of  the  larceny  of  goods  under  los.  in  value. 

'  5  Anne  c.  6.  ^  Above  299. 

'  I  Edward  VI.  c.  12  §  13.  1°  Above  299. 

^^  18  Elizabeth  c.  7.  ^^4  George  I.  c.  11 ;  6  George  I.  c.  23. 


BENEFIT  OF  CLERGY  801 

Till  1576  the  person  who  successfully  pleaded  his  clergy  was 
handed  over  to  the  ecclesiastical  court  to  make  his  purgation. 
It  is  true  that  he  might  have  been  handed  over  absque  ptirgatione  ; 
but  Hale  cites  no  instances  of  such  a  proceeding  later  than  1487.^ 
During  the  sixteenth  century  it  was  realized  that  the  process  of 
making  purgation  was  a  mere  farce  which  turned  "  the  solemn 
trial  of  truth  by  oath  into  a  ceremonious  and  formal  lie."^  For 
this  reason  the  ceremony  of  delivering  to  the  ordinary  and 
purgation  was  abolished  in  1576;^  and,  as  we  have  seen,  the 
court  was  given  power  to  order  that  those  not  actually  in  orders 
should,  on  conviction,  be  imprisoned  for  a  year. 

(iii)  During  the  sixteenth  and  seventeenth  centuries  a  large 
number  of  felonies  were  excluded  from  benefit  of  clergy.  The 
series  begins  in  1496,^  when  a  statute  was  passed  which  deprived 
laymen  of  clergy  if  they  committed  petty  treason.  By  successive 
statutes  passed  during  the  sixteenth  and  seventeenth  centuries 
the  following  offences  were  deprived  of  the  benefit  of  clergy — 
petty  treason,  murder  in  churches  or  highways,  and  later  all 
murders,  certain  kinds  of  robbery  and  arson  (except  in  the  case  of 
clerks  in  orders),  piracy,  burglary  and  house-breaking  if  any  one 
was  in  the  house  and  put  in  fear,  horse-stealing,  rape,  abduction 
with  intent  to  marry,  stealing  clothes  off  the  racks,  or  stealing 
the  king's  stores.^  And  the  list  was  largely  increased  during  the 
eighteenth  century.  Blackstone  in  1769  says  that  at  that  date 
no  less  than  160  offences  had  been  declared  to  be  felonies 
without  benefit  of  clergy.*^ 

It  was  to  a  large  extent  due  to  the  manner  in  which  these 
statutes  dealt  with  the  benefit  of  clergy  that  the  law  relating  to 
it  came  to  be  so  complex.  It  is  clear  from  Hale's  Pleas  of  the 
Crown  that  in  his  day,  though  certain  general  rules  could  be 
stated,  it  was  not  possible  to  give  a  complete  account  of  this 
branch  of  the  law  without  a  careful  study  of  the  statute  law  ap- 
plicable to  each  particular  felony.^  The  main  reason  has  been 
clearly  pointed  out  by  Stephen.  He  says:  ^  *' A  trial  might  end 
either  by  the  accused  person  standing  mute  and  being  pressed  to 
death,  or  by  his  challenging  too  many  jurors  and  being  hanged, 

1  P.C.  ii  328,  citing  Y.B.  3  Hy.  VII.  Mich.  pi.  5,  where  it  was  said  that  those 
who  had  confessed,  abjured  the  realm,  been  outlawed,  or  had  become  approvers,  were 
to  be  handed  over  absque  purgatione. 

2 "  The  perjuries  indeed  were  sundry:  one  in  the  witnesses  and  compurgators; 
another  in  the  jury,  compounded  of  clerks  and  laymen.  And  of  the  third,  the  Judge 
himself  was  not  clear,  all  turning  the  solemn  trial  of  truth  by  oath  into  a  ceremonious 
and  formal  lye,"  Searle  v.  Williams  (1620)  Hob.  at  p.  291. 

'^  18  Elizabeth  c.  7.  *  12  Henry  VII.  c.  7. 

'  Stephen,  H.C.L,  i  464-466 ;  for  some  illustrations  see  8  Elizabeth  c.  4 ;  18 
Elizabeth  c.  7  ;  39  EHzabeth  cc.  9  and  15  ;  i  James  I.  c.  8. 

«  Comm.  (2nd  ed.)  iv  18,  cited  Stephen,  H.C.L.  i  470. 

'  P.C.  ii  323-390,  cc.  xliv-liv.  ^  H.C.L.  i  466. 


302  CRIME  AND  TORT 

or  by  his  pleading  guilty,  or  by  his  being  convicted  and  pardoned, 
or  by  his  being  convicted  and  attainted.  If  a  statute  taking 
away  clergy  did  not  expressly  mention  all  these  possible  cases, 
and  take  away  clergy  in  all  of  them,  both  from  the  principal  and 
from  his  accessories  both  before  and  after,  clergy  remained  in 
every  omitted  case.  Hence  questions  arose  on  the  special  word- 
ing of  every  statute,  as  to  whether  it  ousted  an  offender  of  clergy 
not  only  if  he  was  convicted,  but  if  he  pleaded  guilty,  if  he  stood 
mute,  etc.,  and  similarly  as  to  his  accessories."  ^  Some  simplifica- 
tion was  made  by  a  statute  of  1691,^  which  in  effect  provided 
that  an  exclusion  from  the  benefit  of  clergy  should  extend  to  a 
conviction  upon  any  of  these  grounds  ;  and  by  a  statute  of  1702  ^ 
which  made  a  similar  rule  in  the  case  of  accessories.  But  though 
the  law  had  been  considerably  simplified  it  was  still  very  tech- 
nical. In  particular  it  appears  from  Blackstone  that  the 
question  whether  a  statute  took  away  clergy  from  the  accessory 
as  well  as  from  the  principal  turned  upon  the  somewhat  fine 
distinction  between  words  which  took  it  away  from  the  offence 
and  words  which  took  it  away  from  the  person  committing  the 
offence.* 

Blackstone's  habit  of  praising  somewhat  indiscriminately  all 
the  laws  and  institutions  of  England  is  perhaps  most  strikingly 
illustrated  by  his  panegyric  on  the  benefit  of  clergy  as  it  existed 
in  his  day.  *'The  wisdom  of  the  English  legislature,"  he  says,^ 
"  has,  in  the  course  of  a  long  and  laborious  process,  extracted  by 
a  noble  alchemy  rich  medicines  out  of  poisonous  ingredients, 
and  converted,  by  gradual  mutations,  what  was  at  first  an  un- 
reasonable exemption  of  particular  popish  ecclesiastics,  into  a 
merciful  mitigation  of  the  general  law  with  respect  to  capital 
punishment."  It  never  seems  to  have  occurred  to  Blackstone 
that  a  penal  system  which  needed  such  a  corrective  was  obviously 
defective,  or  that  the  correction  thus  administered  was  to  the 
last  degree  absurd  and  capricious.  It  was  not  till  1827  that  these 
obvious  facts  induced  the  legislature  to  abolish  the  benefit  of 
clergy.*^ 

1  A  good  illustration  of  the  difficulties  thus  caused  will  be  found  in  the  discussion 
in  Foster,  Crown  Law  332-336,  of  the  question  whether  25  Henry  VIII.  c.  3  was 
revived  wholly,  as  Coke  maintained  (Powlter's  Case  (1611)  11  Co.  Rep.  29),  or  only 
partially,  by  5,  6  Edward  VI.  c.  10. 

2  3  William  and  Mary  c.  9  §  2.  ^  i  Anne  St.  2  c.  9. 
^  Comm.  iv.  366-367.  ^  Ibid  364. 

^  7,  8  George  IV.  c.  28;  Stephen  tells  us,  H.C.L.  i  462,  that  when  this  Act  was 
passed  the  clause  of  the  Act  of  1547  which  gave  a  special  privilege  to  peers  (above 
300)  was  overlooked ;  and  that  on  the  occasion  of  Lord  Cardigan's  trial  in  1841  it 
was  a  question  whether,  if  convicted,  he  might  not  claim  his  clergy ;  the  case  of 
peers  was  specially  dealt  with  by  4,  5  Victoria  c.  22  which  repealed  this  clause  of 
Edward  VI's  Act. 


SANCTUARY  AND  ABJURATION       303 

Sanctuary  and  Abjuration  ^ 

This  institution  was  a  striking  feature  of  the  criminal  law  of 
the  Middle  Ages.  The  form  which  it  had  assumed  during  the 
period  which  stretches  from  the  thirteenth  to  the  first  half  of  the 
sixteenth  century,  can  be  described  shortly  as  follows :  A  person 
who  has  committed  a  crime  can  flee  for  refuge  to  consecrated  soil. 
The  coroner  must  then  be  summoned,  to  whom  the  criminal  must 
confess  his  guilt.  Then,  on  taking  an  oath  to  abjure  the  kingdom, 
he  will  be  allowed  to  proceed  in  safety  to  a  port  assigned  to  him. 
He  must  reach  this  port,  and  he  must  embark  from  it  within  a 
certain  number  of  days,  unless  prevented  by  causes  beyond  his 
control.^  This  institution  has  obviously  two  quite  distinct  and 
almost  contradictory  roots — the  principle  that  certain  places  are 
sanctuaries  which  wijl  protect  from  human  punishment  those  who 
take  refuge  there,  and  the  rule  that  the  person  so  taking  refuge 
there  must,  as  punishment  for  his  crime,  abjure  the  kingdom.^ 

The  principle  that  certain  places  are  sanctuaries  which  will 
protect  from  human  punishment  is,  as  M.  Reville  has  said,  not  a 
product  of  Christianity,  but  a  legacy  from  antiquity.  "  But  the 
Church  made  of  it  a  universal  institution  ;  the  converted  bar- 
barians accepted  it  along  with  their  new  faith  ;  .  .  .  and  so  at  the 
beginning  of  the  mediaeval  period  it  had  become  part  of  the  public 
law  of  the  kingdoms  which  had  been  founded  on  the  ruins  of  the 
Roman  Empire."*  It  appears  in  the  Anglo-Saxon  laws  ;  ^  and, 
having  been  taken  over  by  the  Conqueror,  it  appears  in  those 
collections  of  Anglo-Norman  laws  which  purported  to  state  the 
laws  of  Edward  the  Confessor^  and  William  I.^  But,  as  was  the 
case  on  the  Continent,^  none  of  these  laws  promised  complete 
immunity  to  the  criminal.  They  merely  saved  him  from  capital 
punishment.  How  then  was  he  to  be  punished  ?  As  regular 
prisons  did  not  exist,  the  only  alternative  was  exile  and  forfeiture 
of  property.  It  was  probably  this  fact  that  connected  the 
institution  of  abjuration  with  that  of  sanctuary.^ 

It  is  possible  that  the  origin  of  abjuration  is  to  be  sought  in 
the  institution  of  outlawry.^*^    Outlawry  was  the  penalty  for  various 

1  The  best  account  of  this  institution  is  to  be  found  in  a  paper  on  Abjuratio  Regni 
by  Andre  Reville,  Revue  Historique  vol.  50  1-42  (1892). 

2  See  P.  and  M.  ii  588-589. 

•''  Reville  4,  5.  *  Op.  cit.  lo-ii. 

^  Laws  of  Ine  c.  5  ;  Laws  of  Alfred  c.  5  ;  Laws  of  Athelstan  IV.  4 ;  Laws  of 
Ethelred  VIL  5. 

''■  "  Quicumque  reus  vel  noxius  ad  ecclesiam  pro  presidio  confugerit,  ex  quo  atrium 
ingressus  fuerit  securus  sit,  et  a  nemine  insequente  uUo  modo  apprehendatur,  nisi  per 
pontificem  loci  illius,  vel  ministros  ejus,"  c.  v. 

^  "  Cujuscumque  criminis  reus,  si  ad  ecclesiam  confugerit,  pacem  habeat  vitae  et 
membrorum,"  c.  1. 

8  Reville  12.  9  Ibid.  i« Ibid  5-8. 


304  CRIME  AND  TORT 

offences  in  the  Anglo-Saxon  laws.  It  involved  forfeiture  of  goods, 
and  necessitated  removal  from  the  state,  the  protection  of  which 
had  been  withdrawn  ;  and  in  the  laws  of  Ethelred  and  Canute  the 
outlaw  and  the  banished  man  are  spoken  of  as  if  they  were 
identical.^  But  there  is  one  obvious  distinction  between  them. 
A  decree  of  outlawry  is  generally  pronounced  against  a  person 
who  will  not  appear.  On  the  other  hand,  a  man  who  has  been 
arrested  can  be  banished — can  be  forced,  that  is,  to  abjure  the 
realm.  And  such  a  man,  if  he  is  forced  to  abjure  the  realm,  can 
be  made  to  take  an  oath  that  he  will  depart  and  will  not  return. 
Such  abjuration  was  known  as  a  definite  punishment  in  the  twelfth 
and  thirteenth  centuries.^  Two  well-known  persons  punished  in 
this  way  by  Edward  I  were  Piers  Gaveston  and  Thomas  de 
Weyland.^  But,  at  the  end  of  the  thirteenth  century,  it  seems  to 
have  dropped  out  of  use  as  a  definite  punishment,  and  was  not 
revived  as  such  till  the  practice  of  transporting  criminals  to  the 
colonies  began  in  1597.*  It  survived  only  as  an  appendage  to 
the  right  of  sanctuary,  for  it  supplied  exactly  the  punishment 
which  was  needed  for  those  who  had  escaped  the  capital  penalty 
by  reaching  a  place  of  refuge.^ 

The  books  of  Bracton,^  Britton,^  and  Fleta,^  show  that  by  the 
end  of  the  thirteenth  century  the  institution  was  well  established  ; 
and,  as  thus  established,  it  had  passed  over  to  France — perhaps 
from  England.^  It  is  not  surprising  therefore  to  find  that  some 
legal  learning  was  beginning  to  accumulate  round  it. 

It  seems  to  have  been  the  rule  that  only  consecrated  ground 
could  afford  a  sanctuary  ;^^  but  apparently  other  places  might  get 
the  privilege  by  papal  bull  or  royal  charter.^^  Naturally  the 
problem  of  the  man  in  the  sanctuary  who  refused  to  abjure  soon 
presented  itself  Bracton  denied  that  he  could  be  forcibly 
removed,  but  asserted  that,  after  the  lapse  of  forty  days,  he  could 
be  starved  into  surrender ;  ^^  and  his  view  prevailed,^^  except  in  the 

1  Institutiones  Ethelredi  I.  i  (Thorpe  ii  511) ;  Cnuti  Institutio  Legum  Secularium 
c.  13  (Thorpe  ii  531). 

2  Thus  as  Reville  points  out,  op.  cit.  9,  the  assizes  of  Clarendon  and  Northampton 
provided  this  penalty  for  those  accused  of  murder,  theft  or  arson  who  were  found 
guilty  by  ordeal,  and  even  for  those  found  not  guitly  if  they  were  suspect. 

2  Reville  10,  citing  Rymer,  Fcedera  (Rec.  Com.)  I.  pt.  i  209-210,  and  R.P.  i  283b. 

^  Ibid  41-42 — "  Or  au  debut,  on  les  expediait,  non  dans  un  colonic  p^nitentiaire 
ni  en  un  lieu  speciale,  mais  seulement  au  del^  des  mers,  ^  charge  de  vivre  ou  ils 
pourraient  et  comme  ils  I'entendraient.  Sous  cette  forme  premiere,  n'^tait  ce  pas  une 
reminiscence  plutot,  qu'une  innovation  ?  C'^tait  I'antique  abjuration,  moins  le 
serment,  mais  avec  les  memes  sanctions." 

5"Elle  offrait  le  triple  avantage  de  satisfaire  I'Eglise,  vu  qu'elle  respectait  la 
personne  des  condamnes,  d'enricher  le  roi,  qui  s'attribuait  leurs  depouilles,  et  de 
prevenir  les  recidives  par  I'expulsion  des  coupables,"  ibid  12. 

•^  ff.  I35b-i36a.  '^  Vol.  i  61.  ^  I.  c.  29. 

9  Reville  13,  14.  ^"  Ibid  15. 

^1  Ibid  ;  and  cp.  Brooke,  Ab.  Corone  pi.  181. 

12  f.  136a.  "Staunford,  P.C.  iiSb,  119. 


SANCTUARY  AND  ABJURATION      305 

case  of  the  northern  sanctuaries,  such  as  that  of  St.  John  of 
Beverley,  where  the  criminal,  on  taking  the  oath  to  the  lord  of  the 
liberty,  could  remain  all  his  life.^  If  the  criminal  took  the  oath 
of  abjuration  he  must  not  diverge  from  the  route  which  was 
assigned  to  him.  If  he  did,  he  was  liable  to  be  arrested  and 
executed  out  of  hand  ;  and  the  same  results  followed  if  he 
returned  to  England  without  the  royal  licence.^  No  doubt  many, 
either  because  they  could  not  find  means  of  transport,  or  because 
they  were  willing  to  take  the  risk,  disappeared  on  their  journey, 
and  swelled  the  ranks  of  roving  brigands  with  which  the  country 
was  infested.^  Probably  it  was  only  a  small  proportion  of  these 
who  were  caught ;  but  if  they  were  caught  they  were  always  hung.'* 
The  effects  of  abjuration  were  exactly  the  same  as  those  of  a 
condemnation  to  death  except  that  the  criminal's  life  was  spared. 
His  goods  were  forfeited,  his  lands  escheated,  and  his  wife  was 
treated  as  a  widow.^ 

Certain  persons  were  not  allowed  to  take  sanctuary — those 
who  had  been  condemned  whether  or  not  sentence  had  been 
passed,  those  taken  with  the  stolen  property  on  them,*^  and 
clerks."  The  last  named  must,  as  the  church  had  successfully 
insisted  in  the  thirteenth  century,  be  handed  over  to  the  eccle- 
siastical courts.'^  Certain  offences  also,  such  as  felonies  com- 
mitted in  churches,^  prevented  the  offender  from  taking  sanctuary. 
But,  with  this  exception,  the  extent  of  the  privilege  was  con- 
siderably wider  than  the  extent  of  the  privilege  conferred  by 
the  benefit  of  clergy.  It  perhaps  extended  to  treason ;  ^  and 
it  was  made  use  of  by  those  who  were  guilty  of  minor  offences,^^ 
and  even  by  debtors  who  wished  to  evade  payment  of  their 
debts.  Several  petitions  were  presented  to  Parliament  against 
this  abuse  of  sanctuary  by  fraudulent  debtors  ;^^  and  in  1379^^ 

1  Reid,  The  King's  Council  in  the  North  13-14. 

2  Reville  17,  18  ;  but  if  he  had  been  compelled  to  leave  the  road  through  no  fault 
of  his  own  he  was  sent  on  his  way  again,  ibid  27,  citing  Fitzherbert,  Ab.  Corone 
pi.  14. 

3  Reville  23,  26  ;  cp.  The  Eyre  of  Kent  (S.S.)  i  Ixxiii. 

4  Fitzherbert,  Ab.  Corone  pi.  14  (P.  21  Hy.  VI.) ;  pi.  65  (7  Hy.  VII.) ;  pi.  72 
(8  Hy.  IV.). 

5  Reville  18,  19. 

"  Bracton  f.  136a  ;  Brooke,  Ab.  Corone  pi.  no. 

^  Reville  20;  Articuli  Cleri,  9  Edward  II.  st.  i  c.  15. 

»Staunford,  P.C.  117a;  Coke,  Third  Instit.  115. 

9  This  is  denied  by  Staunford,  P.C.  ii6a;  but  see  Y.B.  i  Hy.  VII.  23-24; 
R.H.S.  Tr.  3rd  Ser.  xi  113  ;  it  was  necessary  to  provide  by  26  Henry  VIII.  c.  13  §  2 
that  it  should  not  apply  to  treasons  created  by  that  Act. 

I'' This  is  reasonably  clear  from  R.P.  iii  37,  below  306  n.  i;  but  it  is  denied 
by  Brooke,  Ab.  Corone  pi.  181,  who  says  that  it  was  confined  to  cases  where  the 
criminal  was  in  jeopardy  of  his  life;  considering  the  serious  consequences  of  ab- 
juration it  was  probably  mainly  used  in  these  cases. 

"  R.P.  ii  369  (50  Ed.  III.  no.  51) ;  iii  37  (2  Rich.  II.  no.  28). 

^2  2  Richard  II.  st.  2  c.  3. 

VOL.   HI.— 20 


306  CRIME  AND  TORT 

it  was  enacted  that  if  a  debtor  thus  seeking  to  evade  his  creditors 
had  been  summoned  to  the  door  of  the  sanctuary  once  a  week 
for  five  weeks,  judgment  should  be  given  against  him,  and 
that  his  creditors  should  have  execution  against  his  property. 

In  1378  an  unsuccessful  attempt  was  made  to  restrict  it 
to  crimes  capitally  punished ;  ^  and,  during  the  fifteenth  century, 
it  was  several  times  attacked,^  and  the  abuses  arising  from  it 
in  particular  cases  pointed  out.^  But  in  the  face  of  the  op- 
position of  the  clergy  nothing  could  be  effected.  It  was  not 
till  the  sixteenth  century  that  any  serious  changes  were  made ; 
and,  as  we  shall  now  see,  these  changes  prolonged  its  life  for 
nearly  a  century. 

The  existing  law  was  enforced  in  1529,^  with  the  addition 
that  the  abjuring  criminal  should,  for  purposes  of  identification, 
be  marked  in  the  hand  with  the  letter  A.  In  the  following 
year  came  a  great  change.^  Banishment  was  beginning  to 
lose  some  of  its  terrors ;  and  the  legislature  discovered  that 
these  criminals  who  thus  voluntarily  banished  themselves  were 
often  "expert  mariners"  or  "very  able  and  apt  for  the  wars 
and  defence  of  this  realm."  It  was  therefore  enacted  that 
persons  who  had  abjured  should  go  to  such  sanctuary  as  they 
should  choose  and  remain  there  for  life,  on  pain  of  death  if 
they  left  it.  ft  was  further  provided  that  sanctuary  men  who 
again  committed  felony  should  lose  all  privilege  of  sanctuary. 
In  1535-1536  further  provision  was  made  for  the  discipline  of 
these  sanctuary  men  while  in  sanctuary.*^  Finally,  in  1540,^ 
the  places  which  should  be  regarded  as  sanctuaries  were  defined 
by  the  Act ;  and,  where  the  boundaries  of  existing  sanctuaries 
were  ill-defined,  a  commission  was  appointed  to  ascertain  them. 
Only  twenty  inmates  were  to  be  allowed  in  each  privileged 
place.  They  were  to  be  mustered  daily ;  and,  if  they  failed 
without  excuse  to  appear  for  three  days  in  succession,  they 
lost  their  privilege.  The  same  result  followed  if,  while  in 
sanctuary,  they  committed  felony.  No  privilege  of  sanctuary 
was  to  be  allowed  for  those  guilty  of  murder,  rape,  burglary, 
robbery,  arson,  or  sacrilege. 

Henry  VIII. 's  legislation  as  to  the  privilege  of  sanctuary 
did  not  suffer  the  same  fate  as  his  legislation  as  to  the  benefit 

1  The  petitioners  stated  that  the  judges  had  said  that  the  church  ought  to 
have  no  immunity  for  debts  or  trespass,  but  for  crime  only;  and  that  the  doctors 
of  the  civil  and  canon  law  had  said  "  que  en  cas  de  dette,  d'accompte,  ne  pur 
trespass  fait,  si  homme  n'y  doit  perdre  vie  ou  membre,  nully  doit  en  Sainte  Eglise 
avoir  Immunite,"  R.P.  iii  37  (2  Rich.  II.  no.  28). 

2R.P.  iii  503-504  {4  Hy.  IV.  no.  70) ;  R.P.  iv.  291  (3  Hy.  VI.  no.  39). 

3  R.P.  V  247-248  (31,  32  Hy.  VI.  no.  45) ;  R.P.  vi  110  (14  Ed.  IV.  no.  6). 

4  21  Henry  VIII.  c.  2.  ^22  Henry  VIII.  c.  14. 
^  27  Henry  VIII.  c.  19.                                    '^  32  Henry  VIII.  c.  12. 


PRINCIPAL  AND  ACCESSORY         307 

of  clergy.^  It  is  true  that  Edward  Vl.'s  legislation  restored  the 
privilege  of  sanctuary,  as  it  restored  the  benefit  of  clergy,  in 
the  case  of  certain  crimes  which  had  been  excluded  from  it 
by  Henry  VIII. 's  legislation."  But  the  other  restrictions  im- 
posed by  that  legislation  remained ;  and  in  at  least  one  case 
a  statute  which  took  away  the  benefit  of  clergy  also  took  away 
the  privilege  of  sanctuary.^  But  the  modified  system  of  sanctuary 
introduced  by  Henry  VIII. 's  legislation  did  not  work  well.'^ 
It  was  repealed  in  1603^  and  so  the  common  law  was  restored. 
But  this  restoration  was  hardly  tolerable  in  the  seventeenth 
century.  Public  opinion  in  all  countries,  Roman  Catholic  and 
Protestant  alike,  was  turning  against  it.  Innocent  VIII.  had, 
as  early  as  1487,  declared  that  it  should  not  be  available  for 
fraudulent  debtors;^  Francis  I.  had  abolished  it  in  France  in 
1539;"  the  papacy  in  1591  withdrew  it  from  assassins,  heretics, 
traitors,  brigands,  and  those  who  stole  in  churches  or  on  the 
highways;^  and  in  161 3  Fra  Paolo  Sarpi  advocated  a  series 
of  restrictions  very  similar  to  those  effected  by  Henry  VIII. 's 
legislation.^  This  changed  state  of  public  opinion  made  it 
possible  to  effect  that  abolition  of  the  whole  institution  which 
had  been  vainly  urged  in  the  fifteenth  century ;  and  so  it  was 
abolished  in  1623-1624.^^ 

The  result  of  this  statute  was  that  sanctuary  with  its  pendant 
abjuration  ceased  to  exist  as  a  legal  institution.  But  we  shall  see 
that  certain  so  called  sanctuaries  existed  till  the  eighteenth 
century,  which  gave  practical  immunity  to  fraudulent  debtors  and 
even  to  criminals. ^^  They  existed  in  spite  of  statutes  passed  to 
suppress  them  ;  and  did  not  wholly  disappear  till  the  arm  of  the 
law  was  strengthened  by  the  establishment  of  an  efficient  police 
system. 

§  4.  Principal  and  Accessory 

The  common  law  knows  four  kinds  of  parties  to  the  com- 
mission of  felonies.  There  is  the  principal  in  the  first  degree,  i.e. 
the  man  who  actually  commits  the  felony ;  the  accessory  at  the 
fact,  or  the  principal  in  the  second  degree,  i.e.  the  man  who  is 
present  at  the  commission  of  the  felony  aiding  and  abetting  ;  the 

^  Above  300.  2  J  Edward  VI.  c.  12  §  9. 

3  2,  3  Edward  VI.  c.  33. 

* "  To  say  the  truth.  Abjuration  was  exceedingly  intricated  and  perplexed  by 
the  said  Act  of  22  H.  8  c.  14  and  other  statutes,"  Coke,  Third  Instit.  115. 

"  I  James  I.  c.  25  §  7.  "^  Reville  33. 

•^  Ibid  34.  8  Ibid  40. 

^  He  wrote  a  book  on  "Sanctuaries  for  Offenders"  in  1613,  which  Grotius 
called  a  great  book,  in  which  he  advocated  a  reduction  of  the  number  of  sanctuaries, 
arid  that  they  should  be  placed  under  the  control  of  the  state,  Alexander  Robertson, 
Life  of  Sarpi,  226-228. 

10  21  James  I.  c.  28  §  7.  n  Bk.  iv  Pt.  I.  c.  7. 


308  CRIME  AND  TORT 

accessory  before  the  fact,  i.e.  the  man  who  counsels,  procures,  or 
commands  the  felony  ;  and  the  accessory  after  the  fact,  i.e.  the 
man  who  "  receives  and  comforts "  the  felon,  thus  aiding  him  to 
escape  from  justice.^ 

This  classification  of  the  parties  to  a  crime  is  only  important 
in  the  case  of  felony.  The  rule  was  very  early  laid  down  that  in 
the  case  of  treason  ^  and  trespass  ^  (which,  as  we  have  seen,  became 
the  misdemeanour  of  later  law)  all  concerned  were  principals.  No 
doubt  in  the  case  of  treason  the  reason  for  this  rule  was  primarily 
the  desire  to  suppress  the  greatest  crime  known  to  the  law ;  and 
a  technical  reason  could  be  found  for  it  in  the  fact  that  the  essence 
of  the  most  important  head  of  treason  lay,  not  in  the  act  of  killing, 
but  in  the  intention  to  kill  the  king.  The  trespasses  had,  as  we 
have  seen,  their  civil  as  well  as  their  criminal  side  ;  and,  seeing 
that  all  concerned  in  a  trespass  were  equally  liable  to  pay  damages 
if  sued  by  the  injured  party  in  a  civil  action,  it  was  only  logical 
to  make  them  all  equally  liable  to  punishment  if  prosecuted  by 
the  crown. 

The  common  law  had  at  the  end  of  this  period  reached  the 
conclusion  that  no  distinction  could  be  drawn  between  principals 
and  accessories  at  the  fact.  Both  were  principals  in  the  first  and 
second  degree  respectively.*  In  the  case  of  accessories  before  and 
after  the  fact  the  law  started  from  two  leading  principles.  The 
first  was  that  the  accessory  cannot  be  tried  until  the  principal  has 
been  convicted.^  No  doubt  the  stringency  of  this  rule  was,  as 
Maitland  has  pointed  out,  due  to  the  fact  that  the  older  methods 
of  trial  were  appeals  to  the  judgment  of  God  ;  and,  ''  what  could 
we  think  of  the  God  who  suffered  the  principal  to  come  clean 
from  the  ordeal  after  the  accessory  had  blistered  his  hand  ?  "  * 
The  second  principle  was  that  accessories,  whether  before  or  after 
the  fact,  deserved  the  same  punishment  as  the  principals.^ 

The  cases  in  the  Year  Books  are  concerned  for  the  most 
part  in  (i)  elaborating  the  distinctions  between  principals  and 

^  Kenny,  Criminal  Law  chap.  vi.  ^  Y.B.  ig  Hy.  VI.  Mich.  pi.  103. 

3Y.B.  30,  31  Ed.  I.  (R.S.)  106-108;  cp.  Y.B.  20,  21  Ed.  I.  (R.S.)  392.  Nor 
could  there  be  any  accessories  before  the  fact  in  the  case  of  manslaughter,  "  for 
manslaughter  ought  to  ensue  upon  a  sudden  debate  or  affray,"  Bibithe's  Case  (1597) 
4  Co.  Rep.  44a. 

^  Below  309. 

5  Y.B.  33-35  Ed.  I.  (R.S.)  54 ;  in  Y.B.  30,  31  Ed.  I.  (R.S.)  506  a  decision  to  the 
contrary  is  noted  as  having  been  rather  "  ad  appruyamentum  regis,"  than  "  ad  legem 
manutenendum ;  "  Y.B.  19  Ed.  III.  (R.S.)  176  the  rule  is  stated  as  well  settled. 

^  P.  and  M.  ii  508  ;  cp.  vol.  i  302-311. 

■^This  principle  is  as  old  as  the  Assize  of  Clarendon  (1166),  see  P.  and  M.  ii  508. 
Is  it  possible  that  we  see  here  a  faint  trace  of  the  old  principle  of  the  Hability  of  the 
family  as  a  group  (see  vol.  ii  36 ;  and  cp.  Brissaud  ii  1370,  1371)  ?  The  extension 
of  the  activities  of  the  state  makes  for  individual  responsibility ;  but  reminiscences  of 
the  old  principle  might  well  lead  to  this  result  where  several  were  concerned  in  the 
commission  of  a  crime. 


i 


PRINCIPAL  AND  ACCESSORY  309 

accessories,  and  (2)  in  working  out  the  consequences  of  the  rule 
that  you  cannot  try  the  accessory  unless  the  principal  has  been 
convicted. 

(i)  A  distinction  was  drawn  between  those  who  were  present 
aiding,  or  prepared  to  aid,  in  the  commission  of  a  felony,  and  those 
who  were  merely  bystanders  and  simply  remained  passive.  The 
first  were  principals  in  the  second  degree  ;  the  second,  though 
they  were  finable  for  not  raising  the  hue  and  cry,  were  not  guilty 
of  felony  as  principals  or  accessories.^  The  distinction  between 
principals  in  the  second  degree  and  accessories  before  the  fact  was 
not  at  first  clearly  drawn.  Bracton  regarded  the  former  as 
accessories  ;  ^  and  his  view  seems  to  have  been  acted  on  at  least 
once  in  Edward  III.'s  reign.^  But  there  are  earlier  cases  which 
lay  down  the  modern  rule  ;  *  and  it  was  clearly  established  in 
Henry  VII.'s  reign.^  Its  practical  importance  lay  in  the  fact  that 
if  a  man  was  principal  in  the  second  degree  he  could  be  tried 
whether  or  not  the  principal  in  the  first  degree  had  been  convicted. 
The  question  what  assistance  would  render  a  man  accessory  after 
the  fact  was  discussed  in  several  cases.  It  was  settled  that  the 
assistance  must  be  of  such  a  kind  as  to  aid  the  man  to  escape 
from  justice  by  illicit  means.  Mere  advice  or  petitions  for  release 
were  innocent,^  and  so  was  the  mere  receipt  of  stolen  property, 
as  that  did  not  amount  to  help  given  to  the  prisoner  himself.'' 
Some  difficult  questions  arose  in  the  case  where  the  unlawful 
assistance  had  been  given  in  a  county  different  from  that  in  which 
the  crime  had  been  committed,  because  knowledge  of  the  crime 
could  not  be  presumed  in  the  accessory,  and  because  he  could  not 
be  tried  by  a  jury  of  either  county.^ 

(2)  The  varieties  of  the  modes  of  trial  ;  the  intricacies  of 
procedure  ;  the  possibility  that  a  person,  though  convicted,  might 
escape  by  pleading  his  clergy,  or  by  getting  a  pardon  ;  the 
difference  between  a  pardon  after  a  verdict  of  se  defendendo  or 
misadventure,  and  a  pardon  which  was  not  so  much  a  matter  of 
course — all  made  the  application  of  the  rule  that  you  cannot  try 
the  accessory  unless  the  principal  has  been  convicted  exceedingly 
complicated.^  Indeed,  the  technicality  and  complexity  of  the 
rules  upon  this  subject  will  bear  comparison  even  with  the  rules 

'  Fitz.,  Ab.  Corone  pi.  395  (8  Ed.  II.). 

2  In  his  day  these  principals  in  the  second  degree  were  appealed,  not  de  facto,  but 
de  vi  etforcia — you  must  convict  the  chief  culprit  before  you  try  them,  P.  and  M.  ii 
508  n.  I ;  Plowden  at  pp.  gg-ioo  gives  a  clear  account  of  the  history  of  the  develop- 
ment of  the  law  on  this  matter. 

3  Fitz.,  Ab.  Corone  pi.  90  (40  Ed.  III.). 

4  Ibid  pi.  314  and  350  (3  Ed.  III.) ;  and  cp.  pi.  86  (11  Hy.  IV.). 

f^Y.B.  4  Hy.  VII.  Mich.  pi.  10  =  Fitz,,  Ab.  Corone  pi.  60;  Hale,  P.C.  i  437. 

s  26  Ass.  pi.  47.  7  27  Ass.  pi.  69. 

8  Staunford,  P.C.  i  c.  46,  »  See  ibid  cc.  49  and  50. 


310  CRIME  AND  TORT 

of  procedure  which  governed  the  working  of  the  real  actions. 
Though  some  of  the  points  (debated  in  the  Year  Books  were 
settled  in  the  later  law,  the  complexity  of  the  rules  tended  to 
increase  in  consequence  of  the  provisions  of  the  numerous  statutes 
which  created  new  felonies,  and  of  the  mode  in  which  those 
statutes  were  interpreted  by  the  judges.^  It  would  be  both 
tedious  and  useless  to  enter  into  a  detailed  account  of  them.  No 
doubt,  as  Stephen  says,  they  helped  to  mitigate  the  harshness  of 
a  code  which  meted  out  to  accessories  the  same  severe  punishments 
as  it  meted  out  to  principals.  For,  "The  result  of  them  was  that 
if  the  principal  died,  stood  mute,  challenged  peremptorily  more 
than  the  proper  number  of  jurors,  was  pardoned,  or  had  his  clergy, 
the  accessory  altogether  escaped."  ^  It  was  not  till  Anne's  reign 
that  these  rules  were  in  any  way  changed.^  Even  then  the 
accessory  could  not  be  tried  '*  till  the  guilt  of  the  principal  had 
been  legally  ascertained  by  conviction  or  outlawry,  unless  both 
were  tried  together."^  In  1826  it  was  enacted  that  accessories 
before  the  fact  should  be  able  to  be  indicted  of  a  substantive 
felony  independently  of  the  principal;^  and  in  1847  a  similar 
provision  was  made  in  the  case  of  accessories  after  the  fact.^ 
Accessories  after  the  fact  had  always  had  the  benefit  of  clergy.^ 
When  this  was  abolished,  in  1827,^  statutory  provision  was  made 
for  the  punishment  of  the  felonies  to  which  this  privilege  had 
been  attached  ;  ^  and  in  1862  special  provision  was  made  for  the 
punishment  of  all  accessories  after  the  fact.^^ 

§  5.  Offences  Against  the  Person 

In  this  section  I  shall  deal  firstly  with  the  common  law  felony 
of  homicide  and  the  statutory  felony  of  rape,  and  secondly  with 
offences  against  the  person  under  the  degree  of  felony.  The  few 
additional  statutory  felonies  created  during  this  period  have 
already  been  mentioned, ^^  and  do  not  call  for  further  comment. 

Homicide. 

At  the  present  day  we  can  divide  homicides  into  two  great 
classes — those  which  are  innocent  and  those  which  are  felonious. 
Under  the  first  class  fall  justifiable  homicides,  e.g.  those  committed 

^Stephen,  H.C.L.  ii  234,  235. 

2  Ibid  232 ;  see  Syer's  Case  (1590)  4  Co.  Rep.  43b ;  Bibithe's  Case  (1597)  ibid. 

3  I  Anne  st.  2  c.  g. 

4  Foster,  Crown  Law  360,  cited  Stephen,  H.C.L.  ii  235 ;  cp.  Lord  Sanchar's 
Case  {1613)  9  Co.  Rep.  at  f.  120b. 

^  7  George  iv  c.  64  §  9.  '^  11,  12  Victoria  c.  46  §  2. 

'  Stephen,  H.C.L.  ii  237. 

8  7,  8  George  iv  c.  28  §  6.  »  Ibid  §  8. 

i**  24,  25  Victoria  c.  95  §  4  ;  24,  25  Victoria  c.  100  §  67. 

"Vol.  ii  451. 


J 


OFFENCES  AGAINST  THE  PERSON     311 

in  the  execution  or  the  advancement  of  justice,  or  in  defence  of 
life/  and  excusable  homicide,  e.g.  killing  in  the  course  of  a  sudden 
combat  {chance-medley)  when  there  is  no  other  means  of  escape, 
or  killing  by  misadventure  in  the  course  of  a  lawful  act.  Under 
the  second  class  fall  suicide,  murder,  and  manslaughter.^ 

All  through  this  period  the  law  is  only  feeling  its  way  tenta- 
tively towards  this  classification.  It  has  but  recently  emerged 
from  the  stage  in  which  any  kind  of  homicide  gives  rise  to  a 
criminal  appeal  at  the  suit  of  the  murdered  man's  kin^ — a  state 
of  the  law  not  far  removed  from  that  in  which  homicide  gives  rise 
sometimes  to  claims  to  wer  and  bot,  and  sometimes  to  wite  or 
blood  feud.'^  As  we  have  seen,  all  through  this  period  appeals 
were  known  ;  '^  and  their  prosecution  often  gave  rise  to  some 
pretty  legal  problems  as  to  who  were  entitled  to  bring  them  and 
the  like.*^  But  they  were  gradually  giving  place  to  the  royal 
procedure  by  way  of  indictment ;  and  that  procedure  is  founded 
on  the  modern  notion  that  the  repression  of  homicide  is  the  affair 
of  the  state.  Moreover,  as  we  have  seen,  the  royal  lawyers  were 
beginning  to  distinguish  between  the  guilt  of  various  forms  of 
homicide  by  reference  to  the  circumstances  under  which  they  were 
committed.^  No  doubt  Bracton's  speculations,  which  he  derived 
from  Bernard  of  Pavia,  were  too  fine-drawn  to  suit  the  common 
law  of  this  period,  or  indeed  any  system  of  merely  human  law.^ 
No  doubt,  too,  there  were  peculiar  difficulties  in  England,  where, 
although  the  procedure  by  way  of  indictment  was  superseding 
the  procedure  by  way  of  appeal,  yet  the  substantive  law  as  to  the 
offences  for  which  men  could  be  indicted  retained  many  traits  of 
its  ancient  origins  in  the  atmosphere  of  deodand,  wer,  and  blood 
feud.  In  spite  of  this  we  can  see  that  throughout  this  period  the 
work  of  discriminating  between  homicide  and  homicide  goes  on  ; 
and,  at  the  end  of  it,  we  are  not  very  far  from  the  main  outlines 
of  the  scheme  of  later  law.  But  even  then  the  outlines  are  very 
bare.  The  production  of  the  finished  picture  will  require  many 
centuries  of  judicial  labour,  with  occasional  assistance  from  the 
legislature. 

We  start,  then,  with  the  broad  rule  that  homicide  is  an  offence, 
felonious  or  otherwise.     Practically  the  only  exceptions  are  the 

1  See  The  Eyre  of  Kent  (S.S.)  i  98-99. 

"^  Kenny,  Criminal  Law  chaps,  viii  and  ix. 

^Vol.  ii  197,  362;  as  we  have  seen,  a  person  if  appealed  of  homicide  must 
swear  that  he  had  done  nothing  whereby  the  deceased  was  "further  from  life  or 
nearer  to  death." 

•*  Vol.  ii  43-46  ;  P.  and  M.  ii  474.  ^  Vol.  ii  362-364. 

« Y.B.  I,  2  Ed.  II.  (S.S.)  42 ;  Fitz.,  Ab.  CoYonc  pi.  41,  322,  385  ;  vol.  ii  362  n.  i. 

"^  Bracton  f.  104b,  "  Item  crimen  homicidii,  sive  sit  casuale  vel  voluntarium,  licet 
eandem  pcenam  non  contineat,  quia  in  uno  casu  rigor  et  in  alio  misericordia," 

>*  Vol.  ii  258-259. 


312  CRIME  AND  TORT 

cases  where  it  is  committed  in  execution  of  the  sentence  of  a 
competent  court,  in  the  arrest  of  felons  when  such  arrest  cannot 
be  otherwise  effected/  and  by  statute  in  the  case  of  foresters  or 
parkers  who  slew  a  trespasser  whom  they  were  attempting  to 
arrest.^  The  narrowness  of  these  exceptions  is,  as  Maitland  points 
out,  illustrated  by  the  fact  that  it  was  thought  advisable  in  1532 
to  pass  an  Act  to  make  it  clear  that  a  person  who  killed  another 
who  had  tried  to  rob  him  in  his  house  or  on  or  near  the  highway 
did  not  incur  a  forfeiture  of  his  goods.^  Apart  from  these  excep- 
tions there  is  abundant  authority  for  the  proposition  that  all  other 
homicide  was  an  offence.  The  most  striking  illustration  of  this 
fact  is  the  rule  that  the  man  who  had  committed  it  by  misadventure 
or  se  defendendo  (though  not  guilty  of  felony)  needed  a  royal 
pardon.*  The  Statute  of  Gloucester  (1278)  regulated  the  pro- 
cedure to  be  followed  in  such  cases. ^  It  enacted  that  a  person 
accused  of  homicide  '*  without  felony"  must  remain  in  prison  till 
the  coming  of  the  justices  in  eyre  or  of  gaol  delivery ;  that  he 
must  then  plead  to  the  indictment ;  and,  "  in  case  it  be  found  by 
the  country  that  he  did  it  in  his  defence  or  by  misfortune,  then 
by  the  report  of  the  justices  to  the  king  the  king  shall  take  him 
to  his  grace  if  it  please  him."  Even  then,  however,  the  accused 
would  forfeit  his  chattels  if  he  had  fled  on  account  of  his  act,  and 
later,  whether  he  had  fled  or  not.^  Moreover,  the  royal  pardon, 
when  obtained,  did  not  shelter  the  accused  from  proceedings  by 
way  of  appeal."^  In  the  old  days  of  wer  and  bot  the  person  who 
slew  another,  even  though  it  was  by  misadventure  or  in  self- 
defence,  had  been  liable  to  pay  the  statutory  sums  to  the  deceased's 
kin.  In  the  old  days  therefore  he  would  not  have  escaped  scot 
free  if  "appealed"  of  the  death  by  the  kin;  and  therefore  he 

1  Bracton's  Note  Book  case  1084 ;  Northumberland  Assize  Rolls  (Surt.  Soc.)  94 ; 
Y.B.  30,  31  Ed.  I.  (R.S.)  512 ;  Fitz.,  Ab.  Corone  pi.  lyg  per  Thorpe  ;  cp.  also  ibid  192, 
194,  261,  288;  Hale,  P.C.  i  489-492. 

2  21  Edward  I.  st  2;  P.  and  M.  ii  477  n.  2. 

3  24  Henry  VIH.  c.  5  ;  P.  and  M.  ii  477  n.  5.  Maitland  says,  citing  North.  Assize 
Rolls  85,  that  he  does  not  think  that  a  homicide  in  self-defence  would  have  been 
justifiable,  even  though  perpetrated  in  the  endeavour  to  prevent  a  felony,  and  this  is 
borne  out  by  the  Eyre  of  Kent  (S.S.)  i  131-132,  139,  150;  but  in  Edward  III.'s  reign 
the  point  was  discussed  and  it  was  decided  that  the  accused  did  not  require  a  pardon,  but 
went  quit,  26  Ass.  pi.  23  and  32  ;  cp.  also  Y.B.  21  Hy.  VII.  Mich.  pi.  50 ;  Henry  VIII. 's 
statute  was  passed,  as  the  preamble  states,  to  clear  up  the  doubt  and  make  the  law 
more  precise,  Cooper's  Case  (1640)  Cro.  Car.  544;  Hale,  P.C.  i  487;  Stephen,  H.C.L. 
iii  39,  40. 

^For  examples  see  P.  and  M.  ii  478;  Register  flf.  309,  309b;  Stephen,  H.C.L. 
iJi  37-39;  cp.  Select  Pleas  of  the  Crown  (S.S.)  pi.  114,  188;  Fitz.,  Ab.  Corone  pi.  302 
and  354 — in  the  latter  case  there  is  a  special  direction  that  the  man  is  not  to  be  put  in 
irons.  As  no  felony  was  committed,  no  one  could  be  indicted  as  accessory,  Y.B.  15 
Ed.  III.  (R.S.)  262. 

^  6  Edward  I.  c.  9. 

''P.  and  M.  ii  479;  Stephen,  H.C.L.  iii  76,  77. 

7  Vol.  ii  ^4,  363  n._2 ;  Y.B.  30,  31  Ed.  I.  (R.S.)  514;  P.  and  M.  ii  481, 


I 


OFFENCES  AGAINST  THE  PERSON     313 

cannot  escape  scot  free  if  indicted  by  the  crown.  The  fact  that 
the  result  of  conviction  upon  an  appeal  or  an  indictment  was  no 
longer  a  money  payment,  but  death  or  mutilation,  made  no 
difference  to  the  liability ;  and  the  mercy  of  the  king  would  suffice 
where  it  was  clearly  wrong  that  such  liability  should  be  enforced. 
When  appeals  went  out  of  use,  and  the  royal  pardon  became  a 
matter  of  course,  the  need  for  getting  it  became  a  mere  formality. 
The  simpler  course  was  adopted  of  allowing  jurors  to  return 
verdicts  of  not  guilty  in  such  cases.^ 

The  rules  as  to  what  would  amount  to  misadventure  or  self- 
defence  were  gradually  evolved.  In  early  days  "  there  could  be 
little  law  about  this,  for  all  depended  upon  the  king's  grace."  ^ 
We  can  see  from  the  Year  Books  of  Edward  IV. 's  and  Henry 
VI I. 's  reigns  that  a  person  could  establish  the  defence  of  mis- 
adventure if  he  could  show  that,  while  engaged  in  a  lawful  act,^ 
he  had  accidentally  killed  another ;  and  this,  it  was  pointed  out, 
was  the  great  distinction  between  criminal  and  civil  liability.  A 
man  is  cutting  his  trees  and  by  accident  they  fall  on  some  one's 
head  and  kill  him  ;  or  a  man  is  shooting  at  the  butts,  and  by 
accident  his  hand  shakes  and  his  arrow  kills  another ;  *  or  one 
kills  another  in  a  tournament  which  is  lawfully  held  because  it  is 
held  by  the  king's  command  ^ — in  these  cases  there  is  no  felony, 
though  there  is  liability  to  a  civil  action  of  trespass.  With  regard 
to  the  plea  of  self-defence  it  was  laid  down  in  Edward  III.'s  reign 
that  the  man  must  not  use  force  unless  he  can  escape  in  no  other 
way.  "  At  the  gaol  delivery  at  Newgate  before  Knivet  and  Lode! 
it  was  found  by  verdict  that  a  chaplain  killed  a  man  se  defendendo. 
And  the  Justices  demanded  to  know  how  :  and  the  jury  said  that 
the  deceased  pursued  him  with  a  stick  and  struck  him ;  and  the 
accused  struck  him  again  so  that  he  died ;  and  they  said  further 
that  the  accused  could  have  fled  from  his  assailant  if  he  had 
wished.  And  the  Justices  adjudged  him  to  be  a  felon,  and  said 
that  he  was  bound  to  flee  as  far  as  he  could  to  save  his  life."^ 
Such  force  might  be  used  not  only  in  the  strict  defence  of  one's 
own  person,  but  also  in  the  defence  of  one's  master's  person.'^     We 

1  Stephen,  II.C.L.  iii  76,  77,  citing  Foster,  Discourse  of  Homicide  288,  289;  it 
should  be  noted,  however,  that  Hale,  P.C.  i  471,  said  that  the  proper  course  was  for  the 
jury  to  find  the  facts  specially  in  such  cases,  '*  et  sic  per  infortunium  or  se  defendendo," 
"  because  the  court  must  judge  upon  the  special  matter  whether  it  be  per  infortunium 
or  se  defendendo,  and  the  jury  is  only  to  find  the  fact,  and  leave  the  judgment  there- 
upon to  the  court." 

2  P.  and  M.  ii  483. 

3Y.B.  II  Hy.  VII.  Pasch.  pi.  14  per  Fineux,  C.J. 
4  Y.B.  6  Ed.  IV.  Mich.  pi.  18 ;  cp.  below  373-374. 
^Y.B.  II  Hy.  VII.  Pasch.  pi.  14. 

«43  Ass.  pi.  31;  Y.B.  2  Hy.  IV.  Mich.  pi.  40;  Fitz.,  Ab.  Corone  pi.  284,  286; 
cp.  Bracton's  Note  Book  case  1216;  Select  Pleas  of  the  Crown  (S.S.)  pi.  70. 
'26  Ass.  pi.  23 ;  Y.B.  21  Hy.  VII.  Mich.  pi.  50. 


314  CRIME  AND  TORT 

have  seen  that  in  Edward  III.'s  reign  it  would  probably  have  been 
a  good  defence  if  the  killing  had  been  done  to  prevent  the  com- 
mission of  such  offences  as  robbery,  arson,  or  burglary ;  and  that 
certain  cases  of  killing  on  such  occasions  were  declared  to  be 
justifiable  by  a  statute  of  Henry  VIII. 's  reign.^ 

Homicide  which  was  neither  justifiable,  nor  by  misadventure, 
nor  se  defendendo  was  felonious.  But  it  was  obvious  that  such 
felonious  homicide  might  be  of  very  various  shades  of  moral  guilt. 
It  might  be  the  result  of  carelessness,  and  that  carelessness  might 
be  of  very  various  degrees  ;  or  it  might  be  deliberate  and  intentional 
— the  result  of  "  malicia  praecogitata."  ^  This  expression  "  malice 
aforethought"  gradually  came  to  be  the  expression  used  to 
describe  the  worst  form  of  felonious  homicide ;  and,  from  the 
latter  part  of  the  fourteenth  century,  homicide  of  this  kind  came 
to  be  known  by  the  name  of  murder;  while  later,  felonious 
homicide,  which  is  not  murder,  came  to  be  known  as  homicide  by 
chance-medley,  and,  later  still,  as  manslaughter.^ 

The  history  of  the  term  "  murdrum "  is  curious.  Germanic 
peoples  treat  more  severely,  under  the  head  of  morth,  certain 
forms  of  secret  homicide.  The  word  itself  implies  concealment, 
and  both  the  word  and  the  thing  lived  on  under  the  name 
murdrum}  As  Maitland  has  pointed  out,  Glanvil  treats  murdrum, 
or  secret  homicide,  differently  from  open  and  intentional  killing.^ 
But  by  that  time  the  legislation  of  William  I.  had  given  a  new 
technical  meaning  to  the  term.  As  we  have  seen,  the  hundred 
must  pay  a  murder  fine  whenever  a  dead  body  was  found  within 
its  limits  which  could  not  be  proved  to  be  that  of  an  Englishman, 
and  the  delinquent  was  not  produced,  or  natural  cause  of  death 
proved.  Murder,  therefore,  came  to  mean  that  secret  killing  for 
which  a  murder  fine  was  payable.^  When,  in  1340,^  the  murder 
fine  was  abolished,  the  term  was  released  from  its  former  technical 
meaning,  and  seems  soon  to  have  reverted  to  what  was  its  earliest 
and  perhaps  had  always  been  its  popular  meaning — the  most 
serious  form  of  homicide.     But  by  that  time  the  most  serious  form 

^  Above  312. 

2  The  expression  is  used  in  Fitz.,  Ab.  Corone  pi.  284  (1330). 

^Staunford,  whose  book  on  the  pleas  of  the  crown  was  published  in  1560,  con- 
trasts (i  10)  "homicide  par  chance  medley,"  and  "homicide  par  voy  de  murder;" 
Coke,  writing  a  little  later,  uses  the  term  "manslaughter"  in  its  modern  sense.  It 
would  appear  from  the  Oxford  English  Dictionary  that  the  word  was  already  in  use 
as  a  popular  term ;  but  that  it  was  coming  into  use  as  a  legal  term  during  the  latter 
half  of  the  sixteenth  century;  Lambard,  Eirenarcha  ii  vii  (1581)  is  cited  as  saying, 
"  Using  manslaughter  as  a  sort  of  Felonie  that  comprehendeth  under  it  all  manner  of 
Felonious  homicide  whatsoever; "  and  it  seems  to  have  been  used  in  this  sense  by 
the  legislation  as  early  as  1547,  see  i  Edward  VI.  c.  15  §  6. 

4  Stephen,  H.C.L.  iii  25-27;  P.  and  M.  ii  484. 

^  P.  and  M.  ii  484  n.  5,  citing  Glanvil  xiv  3. 

«  Vol.  i  15.  '  14  Edward  III.  st.  i  c.  ^. 


OFFENCES  AGAINST  THE  PERSON     315 

of  homicide  was  not  concealed  as  opposed  to  open  killing,  but 
killing  with  malice  aforethought.  Murder  then  was  applied  to 
felonious  killing;  and  more  especially  to  killing  with  malice 
aforethought.^  But  the  growing  precision  which  was  coming  to 
be  attached  to  misadventure  and  self-defence  on  the  one  side,  and 
to  malice  aforethought  on  the  other,  caused  it  to  be  necessary  to 
distinguish  further  between  the  various  forms  of  felonious  homi- 
cide. This  necessity  was  recognized  just  after  the  close  of  this 
period  by  the  statutes  which  excluded  from  the  benefit  of  clergy 
killing  by  malice  aforethought,  but  left  other  forms  of  felonious 
homicide  still  clergyable.^  Thus  we  get  the  line  drawn  between 
murder  and  the  manslaughter  of  later  law.  The  further  elabora- 
tion of  this  distinction  does  not  here  concern  us.  It  has  been  the 
work  of  several  succeeding  centuries.^ 

It  was  recognized  from  an  early  period  that  to  constitute 
homicide  there  must  be  a  voluntary  act  directly  causing  the  death. 
Thus  a  doctor,  whose  patient  died  within  three  days  after  he  had 
begun  to  treat  him,  could  not  be  said  to  be  guilty  of  felonious 
homicide.*  Similarly  it  must  be  shown  that  the  death  was 
sufficiently  connected  with  the  act.  At  an  early  date  the  rule 
was  laid  down  that  if  death  ensued  within  a  year  and  a  day 
sufficient  connection  would  be  presumed.^  Perhaps  this  period 
was  connected  with  the  fact  that  it  was  the  length  of  time  within 
which  the  relatives  of  the  murdered  man  were  able  to  bring  their 
appeal.  An  injury  to  a  child  not  yet  born  is  not  murder;^  nor, 
in  spite  of  a  little  authority  to  the  contrary,  is  a  frustrated  attempt 
to  murder.''  It  is  only  by  express  statutory  enactment  that  such 
an  attempt  has  been  made  felony.^  It  was  settled  during  this 
period  that  the  person  who  intentionally  took  his  own  life  was 
guilty  of  felony,  in  spite  of  Bracton's  doubts.^  Probably,  as 
Maitland  says,  the  practice  of  always  exacting  a  forfeiture  of  goods 
in  such  cases  determined  the  question.  Such  forfeiture  was  the 
usual  accompaniment  of  felony.     But  the  severity  of  the  law  was 

^  So  quickly  did  the  new  meaning  of  the  term  become  popular  that  in  1348,  Y.B. 
21  Ed.  III.  Hil.  pi,  23,  the  judges  stated  that  before  the  year  1267  a  man  who  com- 
mitted murder  in  self-defence  or  by  misadventure  was  hanged,  referring  to  the  Statute 
of  Marlborough,  1267  {52  Henry  III.  c.  25),  which  stated  that  killing  by  misadventure 
was  not  to  be  judged  "  murdrum  ;  "  cp.  Hale,  P.C.  i  425  ;  Stephen  H.C.L.  iii  42. 

2  12  Henry  VII.  c.  7  (Petit  Treason) ;  23  Henry  VIII.  c.  i  §  3,  "wilful  murder 
by  malice  prepensed." 

3  See  Bk.  iv  Ft.  II.  c.  5.  ^Fitz.,  Ab.  Corotte  pi.  163  (1330). 

^  Ibid  pi.  303  (1330) ;  Hale  points  out,  P.C.  i  426,  that  "  the  title  of  the  lord  by 
escheat  to  avoid  mesne  incumbrances  relates  to  the  stroke  given,  and  not  only  to  the 
death." 

"  Ibid  pi.  263 ;  3  Ass.  pi.  2 ;  22  Ass.  pi.  94 — either  because  he  has  not  been 
baptized  and  has  no  name,  or  because  he  "nunquam  fuit  in  rerum  natura." 

■^  As  to  this  see  below  373. 

^24,  25  Victoria  c.  100  §  11. 

^Fitz.,  Ab.  Corone  pi.  301 ;  P.  and  M.  ii  486  n.  6  for  the  earlier  law. 


316  CRIME  AND  TORT 

relaxed  in  the  case  of  the  man  who  was  of  unsound  mind/  or  the 
man  who  slew  himself  by  misadventure.^  In  later  law  the  freedom 
with  which  juries  found  "  temporary  insanity  "  has  rendered  the 
crime  of  very  infrequent  occurrence.^ 

Rape. 

Rape  from  the  earliest  times  was  remedied  by  the  appeal  of 
the  injured  woman  ;  and  it  may  perhaps  in  early  days  have  com- 
prehended abduction  as  well  as  z/Z^/^^/^j"  concubitus.^  From  the 
time  of  the  Conquest  onwards  the  two  things  tended  to  fall 
apart ;  and  rape  became  the  name  for  the  more  serious  offence.^ 
If  prosecuted  by  the  woman  by  way  of  appeal  it  was  a  felony,  and 
the  penalty  was  loss  of  limb ;  but  the  appeal  might  be  com- 
promised, and  sometimes  was  compromised,  on  the  basis  of  a 
marriage.^  If  the  woman  brought  no  appeal  and  the  ravisher 
was  indicted,  the  crime  was  not  regarded  as  a  felony,  and 
could  be  expiated  by  fine  and  imprisonment.'''  The  Statute  of 
Westminster  I.^  lengthened  the  period  within  wliich  the 
woman  could  bring  her  appeal  to  forty  days,  and  increased  the 
punishment  if  the  guilty  person  was  indicted.  The  Statute  of 
Westminster  II.®  made  tlie  ofifence  in  all  cases  a  felony  ;  and  it 
was  after  this  period  that  its  essentials  were  clearly  defined. ^^ 
The  precision  of  that  definition  has  caused  the  necessity  in 
later  law  for  the  enactment  of  many  statutes  dealing  with  such 
offences  as  abduction  and  forcible  marriage. 

Mayhem. 

Mayhem  was  an  injury  to  the  person  that  amounted  to  the 
deprivation  of  some  member  that  was  useful  for  the  purposes 
of  fighting.  ^^     Like  rape,  it  could  be  prosecuted  by  an  appeal  of 

ipitz.,  Ab.  Corone  pi.  412  (1315),  in  this  case  the  goods  were  confiscated;  pi. 
244  (1349)  they  were  not. 

2  Ibid  pi.  304.  3  Kenny,  Criminal  Law  113,  114. 

4  P.  and  M.  ii  488,  489 ;  for  a  curious  precedent  of  such  an  appeal  see  Novse 
Narrationes  fF.  71,  72. 

5  Bracton  f.  148,  '« Item  excipere  potest  et  dicere  quod  non  abstulit  ei  pucil- 
lagium  suum;"  Bracton,  it  would  seem  (f.  147),  would  have  restricted  it  to  violent 
intercourse  with  a  virgin. 

«Ibid  148,  "  Cum  igitur  mulier  habeat  electionem,  et  spreto  judicio  petat  ipsum 
in  virum,  conceditur  ei  ex  gratia  regis,  ob  favorem  matrimonii ;  "  P.  and  M.  ii  489 
n.  7;  Y.B.  30,  31  Ed.  I.  (R.S.)  500 ;  The  Eyre  of  Kent  (S.S.)  i  134-135- 

7  Northumberland  Assize  Rolls  (Surt.  Soc.)  92,  94,  329,  cited  P.  and  M.  ii  490 
n.  I. 

8  3  Edward  I.  st.  i  c.  13. 

» 13  Edward  I.  st.  i  c.  34 ;  for  the  connection  of  this  statute  with  that  of  1275 
see  P.  and  M.  ii  490  n.  2. 
1"  Hale,  P.C.  i  628. 
"  Bracton  f.  145b ;  Fitz.,  Ab.  Corone  pi.  458  (citing  H.  8  Ed,  IV.  21). 


OFFENCES  AGAINST  THE  PERSON    317 

felony;  but  unlike  rape  it  never  became  an  indictable  felony. 
The  result  was  that  it  gradually  dropped  out  of  the  list  of  felonies 
with  the  disuse  of  appeals.^  We  have  seen  that  in  such  cases 
Britton  recommended  complainants  to  bring  the  action  of  tres- 
pass rather  than  the  appeal.^  Appeals  were,  however,  sometimes 
brought  in  this  period ;  and  it  was  for  the  judges  to  decide, 
either  by  personal  inspection  ^  or  by  medical  evidence,^  whether 
the  injury  amounted  to  a  mayhem.  But  as  a  rule  proceedings 
for  trespass  were  taken,  with  the  result  that  **till  late  in  the 
seventeenth  century  the  most  violent  crimes  against  the  person 
were  treated  as  misdemeanours  punishable  with  fine  and  im- 
prisonment." ^  Even  in  this  period  the  laxity  of  the  law 
occasioned  one  piece  of  special  legislation  against  certain  gross 
forms  of  injury.*^ 

The  number  and  variety  of  the  precedents  of  writs  of  tres- 
pass in  the  Register  show  us  how  extensive  was  the  use  made  of 
it.  Insults,  beating,  wounding,  ill-treatmunt  such  as  to  endanger 
life,  and  "alia  enormia,"  are  the  common  allegations.'^  Another 
common  complaint  is  of  imprisonment  till  a  ransom  is  paid,^  till 
an  oath  is  given  not  to  sue  for  the  trespass,^  or  till  some  claim  is 
released.^^  Less  common  complaints  are  of  the  abduction  of  a 
wife,^^  apprentice,^^  or  monk  ;  ^^  of  a  dogbite ;  ^^  of  attempts  to 
poison,^^  waylay,  or  kill ;  ^^  ill-treatment  by  a  gaoler  of  a 
prisoner  ;^^  even  a  contempt  of  court. ^^  Moreover,  there  are 
many  other  precedents  of  causes  of  action  founded  partly  upon 
wrongs  to  the  person,  partly  upon  wrongs  to  property — cattle 
have  been  driven  off,  tenants  threatened,  and  the  land  cannot  be 
cultivated.^^ 

These  writs  of  trespass  are  a  striking  testimony  to  the 
narrowness  of  the  criminal  law.  They  show  us  that  the  inter- 
position of  the  council  was  needed  to  supply  its  defects,  quite  as 
much  as  the  interposition  of  the  Chancery  was  needed  to  supply 
the  defects  of  the  civil  law.     It   is  true  that   trespass  had   its 

-  iVol.  ii  361.  2  Ibid. 

^Fitz.,  Ab.  Corone  pi.  63,  74.  *Ibid  209. 

'^Stephen,  H.C.L.  iii  log. 

8  Vol.  ii  451 ;  for  the  later  statute  law  see  Stephen,  H.C.L.  iii  112,  113;  Bk.  iv 
Pt.  I.  cc.  2  and  7. 

'  See  e.g.  the  Register  f.  93,  "  Quare  vi  et  armis  in  ipsum  A  apud  N  insultum 
fecit,  et  ipsum  verberavit,  vulneravit,  imprisonavit,  et  male  tractavit,  et  alia  enormia, 
etc. ;  "  App.  IB  (5)  (6)  (7). 

8  Ibid  f.  93.  9  Ibid  f.  95b.  10  Ibid  f.  93. 

11  Ibid  f.  97.  12  Ibid  f.  109.  13  Ibid  f.  99. 

14  Ibid  f.  97.  15  Ibid  f.  102. 

i«  Ibid  f.  102.  17  Ibid  if.  100,  loob. 

15  Ibid  ff.  95,  95b,  the  marginal  note  runs,  '•  De  quodam  brevi  de  prohibitione  in 
luto  project©  et  pedibus  conculcato;  "  for  tlie  development  of  the  law  as  to  such 
contempts  see  below  391-394. 

i»Ibidf.  94b. 


318  CRIME  AND  TORT 

criminal  side.  Trespassers  could  be  prosecuted,  if  presented  at 
the  tourn  or  before  the  king's  judges ;  and  the  trespasses  which 
were  so  prosecuted  became  the  common  law  misdemeanours  of 
our  later  criminal  law.^  But  as  early  as  Edward  II.'s  reign  the 
civil  aspect  of  trespass  was  gaining  ground ;  ^  and  we  have  seen 
that  in  this  period  more  reliance  was  placed  upon  the  action  of 
the  injured  individual  than  upon  the  presentment  of  a  jury.^ 
The  weakness  of  the  executive,  the  decay  of  the  old  communal 
system  of  presentment  in  the  tourn  and  leet,  the  ease  with  which 
juries  were  corrupted  or  terrorized,  caused  the  criminal  aspect  of 
trespass  to  dwindle  in  importance,  and  prevented  any  important 
development  in  the  law  as  to  crimes  under  the  degree  of  felony.* 
A  large  gap  was  thus  left  in  the  criminal  law  which  in  later  times 
will  be  filled  by  the  creation  of  many  statutory  misdemeanours.^ 
Without  the  aid  of  the  legislature  it  would  have  been  impossible 
to  win  back  to  the  field  of  criminal  law  the  territory  which,  in  this 
period,  had  been  annexed  by  the  law  of  tort.  Even  these  statu- 
tory misdemeanours  retain  many  traces  of  the  days  when  crime 
and  tort  were  not  clearly  separated.  They  recall  the  double 
nature — criminal  and  civil — of  the  old  writs  of  trespass.^ 

We  must  now  turn  to  the  various  wrongs  to  property  recog- 
nized by  the  law.  But  before  we  can  understand  their  nature, 
we  must  first  deal  with  the  principles  of  the  law  as  to  the 
possession  and  ownership  of  chattels ;  for  it  is  in  connection 
with  this  branch  of  the  law  of  crime  and  tort  that  the  earliest 
developments  of  these  principles  were  made,  and  it  is  on  these 
principles  that  this  branch  of  the  law  depends. 

§  6.  Possession  and  Ownership  of  Chattels 

The  origins  of  our  modern  law  as  to  the  possession  and 
ownership  of  chattels  must  be  sought  in  the  history  of  the 
personal  actions,  just  as  the  origins  of  our  modern  law  as  to  the 
possession  and  ownership  of  land  must  be  sought  in  the  history 
of  the  real  actions.  In  the  case  both  of  chattels  and  land  the 
development  of  the   mediaeval   law   on    this    subject   has    been 

1  The  gradual  way  in  which  the  term  "  misdemeanour  "  became  the  technical 
term  for  crimes  under  the  degree  of  felony  can  be  seen  in  the  Oxford  English 
Dictionary.     It  was  clearly  not  used  in  this  way  till  well  on  in  the  sixteenth  century. 

2  *'  Although  *  with  force  and  arms  '  be  contained  in  the  writ,  she  does  not  ex- 
pect to  recover  damages  for  that,  but  rather  for  the  trespass  done  to  her,"  per 
Brabazon,  C.J.,  Y.B.  4  Ed.  II.  (S.S.)  29,  cited  H.L.R.  xxix  389. 

3  Vol.  ii  453-454.  ^  Below  389-390. 
'^Vol.  ii  365  ;  below  390;  Bk.  iv  Pt.  I.  cc.  2  and  7. 

^  Professor  Kenny,  Criminal  Law,  at  p.  99  says,  "  A  prosecution  for  misde- 
meanour is  hardly  distinguishable  from  an  action  for  tort  in  which  the  king  is 
plaintiff,  and  which  aims  at  punishment  and  not  at  damages," 


PERSONAL  ACTIONS  319 

shaped  by  these  two  sets  of  actions ;  and  it  is  therefore  domi- 
nated by  the  accidents  of  their  evolution.  And,  just  as  in  the 
case  of  land  we  can  see  at  the  end  of  the  mediaeval  period  a  new 
action  of  trespass — the  action  of  ejectment — which  will  replace  the 
real  actions  and  create  our  modern  law  as  to  the  possession  and 
ownership  of  land  ;  so,  in  the  case  of  chattels,  we  can  see,  also 
at  the  end  of  the  mediaeval  period,  the  beginnings  of  another  off- 
shoot of  trespass — the  action  of  trover  and  conversion  of  our 
modern  law — the  development  and  working  of  which  will  make 
important  additions  to  the  law  as  to  the  possession  and  owner- 
ship of  chattels.  In  this  section  I  shall  begin  by  tracing  the 
development  of  the  older  personal  actions  which  protected  the 
possession  or  ownership  of  chattels,  and  the  origins  of  the 
modern  action  of  trover  and  conversion.  I  shall  then  say 
something  of  the  mediaeval  theory  of  the  possession  and  owner- 
ship of  chattels  which  resulted  from  the  development  of  these 
actions. 

The  Development  of  the  Personal  Actions 

In  the  twelfth  century  the  remedies  of  the  dispossessed  owner 
of  a  chattel  were  essentially  similar  to  those  which  he  had  in 
Anglo-Saxon  times. ^  No  new  royal  remedies,  such  as  had  been 
invented  to  protect  the  seisin  of  the  freeholder,  had  come  to  the 
aid  of  the  possessor  of  a  chattel.  As  in  the  Anglo-Saxon  period, 
therefore,  we  must  distinguish  the  case  where  the  owner  in- 
voluntarily lost  possession  from  the  case  where  he  voluntarily 
parted  with  it.  This  distinction  runs  all  through  the  law  of 
this  period,  because  it  is  the  foundation  of  two  very  different  sets 
of  remedies ;  and  our  modern  law,  having  been  shaped  by  these 
remedies,  still  bears  the  marks  of  this  distinction.  I  shall  there- 
fore deal  (i)  with  the  case  of  involuntary  loss  of  possession; 
(2)  with  the  case  of  voluntary  parting  with  possession ;  and  (3) 
with  the  origins  of  the  modern  action  of  trover  and  conversion. 
That  action  will,  in  the  following  period,  to  a  great  extent 
supersede  the  older  actions,  and  to  some  extent  blur  the  sharp- 
ness of  the  mediaeval  distinction  between  the  involuntary  loss  of 
and  the  voluntary  parting  with  possession. 

(i)  Involuntary  loss  of  possession. 

When  Glanvil  and  even  when  Bracton  wrote,  theft  and  the 
remedies  for  its  prevention  were  the  starting-point  of  the  law. 
The  man  who  has  been  deprived  of  his  goods  should  follow  the  trail. 
The  thief,  if  captured  "  hand-having "  or  "  back-bearing,"  might 

^Vol.  ii  iio-iii*. 


320  CRIME  AND  TORT 

be  executed  without  being  allowed  to  defend  himself.^  If  such 
a  summary  measure  was  not  possible,  two  courses  were  open  to 
the  man  who  had  lost  his  goods.  Either  (i)  he  might  bring  the 
appeals  of  robbery  ^  or  larceny  (called  respectively  by  Bracton  the 
actio  vi  bonorum  raptorum  and  actio  furti)  ^  against  the  person 
whom  he  had  found  in  possession  of  his  goods  ;  or  (ii)  he  might 
omit  the  charge  of  larceny  and  claim  the  goods  as  res  adiratce,  i.e. 
as  his  goods  which  have  gone  from  his  possession  against  his  will.* 

(i)  If  the  owner  brought  his  appeal  the  appellee  might,  as 
under  the  old  practice,  either  prove  that  the  thing  was  his  by 
showing,  e.g.  that  he  had  bought  it,  or  that  it  had  always  been  his  ; 
or  he  might  vouch  to  warranty ;  or  he  might  admit  the  appellor's 
title,  give  up  the  goods,  and  confine  himself  to  proving  that  he 
came  honestly  by  them.^  It  is  clear,  therefore,  that  the  appeal 
was  a  remedy  available  against  any  one  who  was  in  possession  of 
the  goods,  whether  he  came  by  them  honestly  or  not ;  and  that 
the  result  of  this  proceeding  might  be  to  give  the  appellor  the 
goods — not  merely  damages.^  In  fact,  as  I  have  said,  up  to 
1529  ^  this  was  the  only  proceeding  known  to  the  law  which  had 
this  result.  It  is  for  this  reason  that  Bracton's  identification  of 
the  actio  furti  with  the  appeal  of  larceny  was  mistaken  ;  for  the 
actio  furti  was  a  purely  penal  action.^  It  could  be  brought,  not 
necessarily  by  the  owner,  but  by  the  person  who  had  an  interest  in 
the  safety  of  the  goods.  Therefore  it  was  open  to  bailees  ;  ^  and 
we  shall  see  that  the  fact  that  it  was  thus  identified  with  an  action 
which  was  open  to  bailees  may  have  had  something  to  do  with 
fixing  the  position  of  the  bailee  in  later  law.^^ 

(ii)  Bracton  tells  us  the  owner  may  omit  the  words  of  felony 
and  charge  the  defendant  with  being  in  the  possession  of  his  res 
adiratce.  A  person  who  has  elected  this  remedy  may,  if  he  likes, 
abandon  it  and  proceed  by  appeal  of  larceny  ;  but  the  converse 

1  Bracton  flf.  137,  150b;  Britton  i  56;  Sel.  Pleas  of  the  Crown  (S.S.)  pi.  173; 
Northumberland  Assize  Rolls  (Surt.  Soc.)  70;  cp.  Borough  Customs  (S.S.)  i  72,  73; 
ii  xxi,  xxii. 

2  It  is  probably  the  appeal  of  robbery  that  is  historically  the  most  important,  as 
it  seems  to  have  been  more  especially  the  precursor  of  trespass,  see  the  authorities 
cited  by  Mr.  Bordwell,  H.L.R.  xxix  507-508. 

3  Bracton  and  Azo  (S.S.)  182. 

*  Bracton  f.  150,  *'  Cum  autem  sit  qui  sequatur  possit  ab  initio  agere  civiliter 
vel  criminaliter  utrum  voluerit :  poterit  enim  rem  suam  petere  ut  adiratam  per 
testimonium  proborum  virorum,  et  sic  consequi  rem  suam  quamvis  furatam.  Et  si 
ille  qui  seistus  fuerit  in  hoc  ei  non  obtemperaverit,  poterit  accrescere  et  petere  earn 
ut  furatam  (sed  non  e  contrario)  et  dicere  quod  ille  qui  tenet  latro  est;  "  Bracton's 
Note  Book  case  824  gives  a  good  example  of  the  procedure ;  cp.  Britton  i  55-66 ;  see 
vol.  ii  366  n.  8  for  the  derivation  of  the  word  "adirata." 

"P.  and  M.  ii  161-163;  Bracton  f.  151. 

^See  Eyre  of  Kent  (S.S.)  i  109,  142-143  for  cases  where  goods  were  thus  recovered. 

'21  Henry  VIII.  c.  11 ;  vol.  ii  361.  *  Institutes  iv  6.  18. 

*  Ibid  iv  I.  13-17.  '"  Below  340-341. 


PERSONAL  ACTIONS  321 

course  cannot  be  pursued,  because,  though  you  may  go  from  the 
lower  to  the  higher  remedy,  you  cannot  go  from  the  higher  to  the 
lower.  We  can  see  from  a  case  reported  in  Bracton's  Note  Book 
that  the  gist  of  such  an  action  is  the  wrongful  detention  after  a 
request  by  the  owner  for  delivery.^  The  same  thing  clearly 
appears  from  the  count  in  such  an  action  which  is  contained  in 
the  Novae  Narrationes.^  "  W.,  who  is  here,  showeth,  etc.,  that 
whereas  he  had  as  his  own  a  horse  of  such  a  colour  and  worth 
so  much,  on  such  a  day  and  year  and  in  such  a  place  the  horse 
was  lost  to  him,  and  he  went  seeking  him  from  one  place  to 
another,  and  caused  him  to  be  demanded  in  fair  and  market,  and 
he  of  his  horse  could  not  be  certified,  nor  could  he  hear,  till  on 
such  a  day  he  came  and  found  his  horse  in  the  custody  of  W.  of 
E.,  who  is  there,  and  in  the  custody  of  the  same  W.  in  the  same 
vill,  and  he  (the  plaintiff)  told  him  (the  defendant)  how  that  the 
horse  had  gone  from  him,  and  of  this  he  brought  sufficient  proofs 
to  prove  the  said  horse  to  be  his  before  the  bailiffs  and  the  people 
of  the  vill,  and  prayed  him  to  deliver  over  the  horse  to  him,  and 
this  he  was  not  willing  to  do  nor  is  he  now  willing  to  do,  to  the 
wrong  and  damages  of  the  said  W.  20s."  Ames  says  that  we 
have  no  instance  of  such  an  action  being  brought  in  the  royal 
courts.^  Doubtless  the  small  value  of  most  of  the  things  so 
sought  to  be  recovered  would  cause  the  majority  of  such  actions 
to  be  brought  in  the  local  courts.  But  a  note  in  the  Year  Book 
of  21,  22  Edward  I.^.  would  seem  to  show  that  some  information 
about  the  action  was  considered  to  be  useful  to  the  practitioners 
in  the  royal  courts.  "  Note,"  it  is  said,  "  that  where  a  thing 
belonging  to  a  man  is  lost,  he  may  count  that  he  (the  finder) 
tortiously  detains  it,  etc.,  and  tortiously  for  this,  that  whereas  he 
lost  the  said  thing  on  such  a  day,  etc.,  he  (the  loser)  on  such  a 
day,  etc.,  and  found  it  in  the  house  of  such  an  one  and  told  him, 
etc.,  and  prayed  him  to  restore  the  thing,  but  that  he  would  not 
restore  it,  etc.,  to  his  damage,  etc.  ;  and  if  he  will,  etc.  In  this 
case  the  demandant  must  prove  by  his  law  by  his  own  hand  the 
twelfth,  that  he  lost  the  thing." 

It  is  clear  that  this  action,  just  like  the  appeal  of  larceny,  lay 
against  any  one  who  detained  the  goods,  and  that  the  result  of 
the  action  was  to  give  the  plaintiff  the  goods  which  he  claimed  as 

1  Case  824,  "  Editha  de  Wackfordia  .  .  .  dixit  quod  Wilelmus  Nutach  .  .  . 
injuste  detinuit  ei  tres  porcos  qui  ei  fuerunt  addirati,  et  inde  produxit  sectam  quod 
porci  sui  fuerunt  et  ei  porcellati  et  postea  addirati ;  "  William  denies  the  charge; 
thereon  Edith  goes  out  and  takes  counsel,  and  having  returned,  counts  against 
William  as  a  thief;  see  Y.B.  17  Ed.  III.  (R.S.)  214  for  what  is  possibly  another 
instance  of  this  procedure ;  Liber  Mem.  de  Bernewelle  88,  89  gives  an  account  of  a 
similar  proceeding  in  1274,  '"  which  an  inquest  was  taken  as  to  the  title, 

2ff.  65b,  66. 

^  Essays  A.A.L.H.  iii  439.  *  At  pp.  466-468, 

VOL.   III.— 21 


322  CRIME  AND  TORT 

his  own,  or  their  value.  ^  We  should  note,  however,  that  the 
plaintiff  does  not  necessarily  recover  the  thing.  He  may  be 
obliged  to  content  himself  with  its  value.  Bracton  expressly  says 
that  in  actions  to  recover  a  movable  the  defendant  is  bound  to 
restore  alternatively  the  thing  or  its  price  ;  and  that  if  the  plaintiff 
names  no  value  the  action  fails. ^  It  is  no  doubt  true  that  the 
circumstances  under  which  the  appeal  or  the  action  for  res  adiratm 
was  brought,  in  practice  ensured  the  return  of  the  chattels  in 
specie ;  but  even  if  his  words  do  not  apply  to  the  appeal  of  larceny, 
there  seems  no  reason  why  they  should  not  apply  to  this  action 
for  res  adiratce  as  well  as  to  the  action  of  detinue.^  However 
that  may  be,  Bracton's  words  show  that  when  he  wrote  there  was 
no  real  action  for  movables  ;  and  therefore,  as  Maitland  has 
pointed  out,  we  see  one  of  the  roots  of  our  modern  distinction 
between  realty  and  personalty.  ^  We  also  see  the  origin  of  that 
which  in  later  times  came  to  be  known  as  a  "  sale  by  operation 
of  law.  "^ 

Such,  then,  were  the  old  remedies  for  an  involuntary  loss  of 
possession.  It  was  inevitable  that  they  should  decay  and  finally 
change  their  shape  with  the  development  of  the  common  law. 
The  history  of  this  process  I  shall  consider  under  the  following 
heads  :  (i)  The  appeals  of  robbery  and  larceny  and  the  action  of 
trespass  ;  (ii)  The  action  for  res  adiratce  and  the  action  of  detinue  ; 
and  (iii)  Legal  doctrines  resulting  from  the  development  of  these 
actions. 

(i)  The  appeal  was,  as  I  have  said,  a  criminal  prosecution. 
As  the  idea  grew  up  that  to  constitute  a  crime  there  must  be 
some  sort  of  a  mens  rea  on  the  part  of  the  accused,  it  came  to 
look  unjust  to  accuse  a  man  of  theft  merely  because  he  happened 
to  be  in  possession  of  goods  to  which  another  had  a  better  right.'' 
Moreover,  as  we  have  seen,'^  the  technical  difficulties  in  the  way 

1  Ames,  Essays  A.A.L.H.  iii  437-438;  Ames  thinks  that  a  plaintiff  could  only 
formally  demand  his  res  as  adirata  in  the  court,  and  that  on  refusal  he  could  bring  the 
appeal ;  in  other  words,  that  the  proceeding  to  recover  a  res  as  adirata  was  in  the 
nature  of  a  formal  request,  not  of  a  contested  action ;  but  the  precedent  from  Y.B.  20, 
21  Ed.  I.  looks  as  if  it  was  a  regular  action. 

2f.  102b,  "  Si  quisrem  mobilem  vindicaverit  ex  quacumque  causa  ablatam  vel  com- 
modatam,  debet  in  actione  sua  definire  precium  et  sic  proponere  actionem  suam  .  .  . 
alioquin  non  valebit  rei  mobilis  vindicatio,  precio  non  apposito ;  "  cp.  Y.BB.  14,  15 
Ed.  III.  (R.S.)  30  ;  I  Hy.  V.  Hil.  pi.  4  ;  and  for  the  rule  in  modern  law  see  Peters  v. 
Heyward  (1624)  Cro.  Jec.  682 ;  Donald  v.  Suckling  (1866)  L.R.  i  Q.B.  at  p.  601. 

2  The  complaint  might  be, "  Conqueror  quod  talis  mihi  injuste  detinet  vel  robbavit 
talem  rem  tanti  precii,"  f.  102b  ;  but  cp.  P.  and  M.  ii  173  n.  i. 

*  P.  and  M.  ii  173. 

»  See  ex  pte.  Drake  (1877)  5  CD.  at  p.  871,  Vessel,  M.R.,  said,  "  The  theory  of 
the  judgment  in  an  action  of  detinue  is  that  it  is  a  kind  of  involuntary  sale  of  the 
plaintiff's  goods  to  the  defendant.  The  plaintiff  wants  to  get  his  goods  back,  and  the 
court  gives  him  the  next  best  thing,  that  is,  the  value  of  the  goods." 

6  Vol.  ii  259,  359,  452  ;  below  373-374-  "^  Vol.  ii  198,  256-257. 


PERSONAL  ACTIONS  328 

of  an  appeal  caused  it  to  be  a  risky  remedy.  Though  the 
appellor,  if  successful,  might  get  the  goods,  many  things  might 
happen  to  prevent  this  result.  If  there  had  been  no  fresh  pursuit ; 
if  the  thief  had  not  been  captured  by  the  appellor  or  one  of  his 
company ;  if  the  goods  were  not  found  in  the  possession  of  the 
thief;  if  for  any  reason,  e.g.  the  suicide  of  the  thief  or  his  abjura- 
tion, he  was  not  convicted  as  a  result  of  the  appeal — in  all  these 
cases  the  appeal  failed,  and  the  king  got  the  goods  in  the  event 
of  the  thief  being  subsequently  convicted  of  felony  as  the  result 
of  an  indictment.^  Consequently  the  place  of  the  appeal  was 
taken  by  the  semi-criminal  action  of  trespass  de  bonis  asportatis. 
Britton,^  as  we  have  seen,  recommended  this  action  to  be  brought 
rather  than  an  appeal.  But  we  should  note  that  this  action 
differed  from  the  appeal  both  in  its  scope  and  in  its  consequences.^ 
It  differed  in  its  scope  because  the  action  could  be  brought,  not 
against  any  one  in  possession  of  the  goods,  but  only  against  the 
actual  person  who  had  taken  them  out  of  the  possession  of  the 
plaintiff.*  It  differed  in  its  consequences  because  the  plaintiff  if 
successful  got,  not  the  thing  taken,  but  only  damages.  ^  Although, 
therefore,  trespass  was  a  convenient  action  compared  with  the 
appeal,  if  we  look  at  the  speediness  and  efficiency  of  its  process, 
it  was  very  much  inferior  to  the  appeal  in  the  variety  of  persons 
who  might  be  attacked  by  it,  and  in  the  completeness  of  the 
remedy  which  might  be  thereby  obtained.  In  1489  Hussey  and 
Fairfax  agreed  that,  "  appeal  is  for  recovery  of  one's  goods  and 
affirms  property  continually  in  the  party,  but  it  is  otherwise  of 
trespass,  for  that  is  not  for  recovery  of  his  goods  but  for  damages 
for  the  goods.  And  I  have  learnt  that  if  one  take  my  goods 
and  another  take  the  goods  from  him  I  shall  have  appeal  against 
the  second  felon  ;  but  it  is  otherwise  of  trespass."  ^     It  was  thus 

^The  special  difficulties  in  the  waj'  of  the  appeal  of  larceny  are  summed  up  and 
illustrated  from  the  Y.BB.  by  Ames  in  H.L.R.  xi  279-281 ;  and  cp.  Hale,  P.C.  i  539- 
540;  for  some  of  the  illustrations  there  cited  see  Fitz.,  Ab.  Corone  pi.  162,  318,  319, 
379.  392 ;  in  The  Eyre  of  Kent  (S.S.)  i  84  Mutford,  J.,  thus  states  the  law:  "All 
stolen  goods  are  forfeit  to  the  king,  except  the  thief  be  shortly  afterwards  convicted ;  " 
and  the  judges  were  angry  when  a  royal  bailiff  gave  up  stolen  cows  to  the  owner, 
on  what  they  considered  to  be  inadequate  proof  of  ownership,  ibid  109. 

^i  123.  3  p_  and  M.  ii  165-167. 

*Y.BB.  2  Ed.  IV.  Pasch.  pi.  9,  "Si  le  cas  soit  que  jeo  bailie  biens  a  un  F  a 
garder  a  mon  oeps,  et  F  eux  done  a  un  G,  jeo  voile  bien  que  jeo  n'avera  trespass 
versus  G,  car  il  avait  loial  possession  de  eux  per  reason  del  bailment,  et  per  son  don 
le  property  est  vest^  en  le  donee,"  per  Choke ;  13  Ed.  IV.  Trin.  pi.  7 ;  4  Hy.  VII. 
Pasch.  pi.  I,  per  Hussey  and  Fairfax;  so  too  if  A  takes  B's  goods,  and  C  takes  the 
same  goods  from  A,  B  cannot  sue  C  in  trespass,  Y.B.  21  Ed.  IV.  Hil.  pi.  6  (p.  74). 

^See  Y.B.  19  Ed.  III.  (R.S.)  124  for  the  measure  of  damages  recoverable  in  this 
action  as  compared  with  the  action  cf  detinue  per  Moubray ;  substantially  the  modern 
rule  seems  to  be  laid  down,  see  Balme  v.  Hutton  (1833)  9  Bing.  at  p.  477. 

•5  Y.B.  4  Hy.  VII.  Pasch.  pi.  i  (p.  5);  the  translation  is  from  Pollock  and 
Wright,  Possession  156,  where  other  authorities  pointing  out  the  differences  between 
the  appeal  and  trespass  will  be  found;  see  also  H.L.R.  xxix  387. 


324  CRIME  AND  TORT 

a  personal  action  for  damages  against  a  wrongdoer  which  took 
the  place  of  an  action  which,  though  essentially  criminal  in  its 
nature,  possessed  in  the  range  of  persons  who  might  be  attacked, 
and  sometimes  in  the  character  of  the  remedy  which  might  be 
obtained,  two  of  the  marks  of  a  real  action. 

(ii)  The  action  for  res  adiratce  probably  fell  out  of  use  with 
the  disuse  of  the  appeal.  What  took  its  place  ?  This  is  a  difficult 
question  to  answer.  The  received  view  is  that  the  owner  who 
had  involuntarily  lost  possession  of  his  property  had,  after  the 
decay  of  the  older  actions,  no  action  save  the  action  of  trespass, 
which,  as  we  have  seen,  lay  only  against  the  actual  taker ;  and 
that  it  was  not  till  the  invention  of  the  actions  of  detinue  and 
trespass  sur  trover  that  he  got  any  available  action  against  a 
person  who  was  in  possession  of  his  goods,  but  who  was  not  an 
actual  trespasser.  The  action  of  detinue,  it  is  thought,  lay 
originally  only  against  a  bailee,  i.e.  it  was  available  only  to  an 
owner  who  had  voluntarily  parted  with  the  possession  of  his  goods 
to  another.^  Some  words  of  Littleton  in  1455,  describing  a  count 
in  trover  as  a  "new  found  haliday,"  are  taken  to  mean  that  the 
action  of  detinue  was  practically  confined  before  that  date  to 
actions  against  bailees.^ 

It  is,  however,  difficult  to  believe  that  the  rights  of  owners  of 
goods  were  so  curtailed  during  the  fourteenth  century.  No  doubt 
the  action  of  detinue  was  an  action  which  was  used  chiefly  against 
bailees ;  and  some  dicta  perhaps  would  seem  to  imply  that  the 
action  lay  only  against  a  bailee.  But  such  dicta,  if  spoken  in 
course  of  an  action  of  detinue  sur  bailment,  would  not  negative 
a  possibility  of  bringing  such  an  action  against  some  one  other 
than  a  bailee.^     We  want  a  precise  statement  to  the  effect  that 

1  Holmes,  Common  Law  i6g,  "  We  find  it  laid  down  in  the  Year  Books  that, 
if  I  deliver  goods  to  a  bailee  to  keep  for  me,  and  he  sells  or  gives  them  to  a  stranger, 
the  property  is  vested  in  the  stranger  by  the  gift,  and  I  cannot  maintain  trespass 
against  him ;  but  that  I  have  a  good  remedy  against  the  bailee  by  writ  of  detinue  for 
his  failure  to  return  the  goods.  These  casts  have  been  understood,  and  it  would 
seem  on  the  whole  rightly,  not  merely  to  deny  trespass  to  the  bailor,  but  any  action 
whatever;  "  P.  and  M.  ii  174,  "  Despite  the  generality  of  the  writ  (of  detinue),  the 
bailor  of  a  chattel  can  never  bring  this  action  against  any  one  save  his  bailee,  or 
those  who  represent  his  bailee  by  testate  or  intestate  succession." 

^Y.B.  33  Hy.  VI.  Trin,  pi.  12  (p.  27),  '■'■Littleton  dit  secrettement  que  cest 
declaracion  per  inventionem  est  un  tiew  found  haliday  :  car  I'ancien  declaracioun  et 
entrie  ad  ete  tout  temps  en  tiel  cas  coment  les  chartres  [the  things  in  dispute  in  the 
case]  ad  manus  et  possessionem  defendentis  devenerunt  generalment,  et  ne  monstra 
coment :  mes  s'il  fuit  sur  un  bailment  perenter  le  pleintif  et  defendant  auter  sera." 

3  See  Y.B.  16  Ed.  II.  f.  490 — Detinue  against  B,  alleging  a  bailment  to  D,  and 
that  after  D's  death  the  thing  came  to  B's  hands.  The  action  failed ;  but  the  ground 
of  failure  was,  not  that  there  could  be  no  action  of  detinue  except  against  a  bailee, 
but  that,  the  plaintiff  having  brought  detinue  sur  bailment,  the  defendant  must 
made  privy  to  the  bailee;  see  e&^tc\d\\y  Aldeburgh^s  argument  where  he  says,  "  J( 
pose  que  vous  eussez  counte  que  a  tort  nous  detenons  I'escript,  et  pur  ceo  a  tort  qu« 
i'escript  devynt  en  nostre  main,  votre  counte  ne  vaudra  rien  donque  quant  vou 


PERSONAL  ACTIONS  325 

the  action  lies  against  a  bailee  and  no  one  else.  To  borrow  the 
precise  language  of  the  pleaders,  we  must  have,  not  only  an 
averment  that  an  action  of  detinue  lies  only  against  a  bailee,  but 
also  an  averment  that  it  lies  only  against  a  baillee  '* sans  ceo  que" 
it  lies  against  any  one  else.  It  is  just  this  averment  which  it  is 
difficult  to  find.^  There  are  in  fact  some  cases  which  would  seem 
to  show  that  the  action  of  detinue  was  sometimes  allowed  to  do 
part  of  the  work  of  the  old  action  for  res  adiratcB,  and  that  the 
owner  who  had  involuntarily  parted  with  the  possession  of  his 
goods  might  sometimes  sue  one  who  was  not  the  actual  taker. 
The  gist  of  the  old  action  for  res  adiratce  was  the  fact  that 
the  plaintiff  had  lost  his  goods,  that  they  had  come  into  the 
hands  of  the  defendant,  and  that  the  defendant  on  request  refused 
to  give  them  up.  Just  as  in  the  action  of  detinue,  it  is  the 
wrongful  detention  which  is  the  gist  of  the  action.^  This  is 
brought  out  in  the  precedent  from  the  Novae  Narrationes,  the 
Year  Book  of  Edward  I.,  and  the  case  from  Bracton's  Note  Book 
which  I  have  referred  to  above.^  It  is  not  therefore  inconceivable 
that  this  old  action  should  have  been  superseded  by  a  form  of 
detinue,  just  as  the  appeal  was  superseded  by  trespass.  Besides 
the  case  from  the  Year  Book  of  Edward  II.'s  reign  which  I  have 
cited  above,^  the  following  cases  would  seem  to  show  that  a  form 
of  detinue  was  recognized  which  enabled  a  man,  whose  property 
had  gone  from  him  involuntarily,  to  recover  it  from  the  persons 

commencez  vostre  counte  du  bailie  fait  a  certein  persone,  et  puis  .  .  .  votis  ne  pursuez 
mye  stir  le  bailie  come  fesaunt  nous  prive  a  celui  a  qui  voiis  baillastes  eins  nousfaisez 
tout  estrange  a  eel  bayl.''^  Thus  the  possibility  of  suing  on  a  devenerunt  ad  manus — 
"devynt  en  nostra  main" — which  Littleton  said  was  the  old  manner  of  pleading — is 
clearly  recognized  at  this  early  date. 

^  It  is  true  that  in  Y.B.  6  Hy.  VII,  Mich.  pi.  4  (p.  g)  Brian,  arguing  as  to  the 
nullity  of  a  gift  of  goods  by  one  out  of  possession,  says.  "  Cesty  de  que  les  biens  sont 
pris  ne  poit  avoir  accion  de  detinue  ...  car  en  Detinue  on  doit  mettre  que  le 
defendant  vient  a  eux  loyalment ;  "  but  he  admits  that  he  can  "  s'il  voile  porter  accion 
de  Detinue  et  count  sur  trover  ou  bailment  pur  ce  que  ce  n'est  traversable;  "  and  cp. 
Y.B.  12  Ed.  IV.  Mich.  pi.  2  the  same  judge  says,  "  Si  jeo  bailie  biens  a  un  home  a 
garder  icy  en  queconque  mains  les  biens  deviendra  il  est  chargeable  a  moy  .  .  .  mes 
si  cestui  a  qui  les  biens  sont  bailies  bailie  les  biens  a  un  auter  cest  seconde  baile  n'est 
chargeable  forsque  durant  le  possession,  etc.,  car  s'il  bailie  ouster  il  est  discharge;  " 
so  Y.B.  43  Ed.  III.  Mich.  pi.  11  (p.  29)  Belknap's  words  clearly  refer  to  a  case  where 
there  has  been  a  bailment — he  is  not  thinking  of  a  case  where  there  has  been  none. 
The  fact  that  for  some  time  when  there  had  been  a  bailment  the  bailor  could  only 
sue  the  bailee  in  detinue  sur  bailment  (below  348-349)  is  consistent  with  the  fact 
that  there  may  have  been  another  form  of  detinue  open  to  a  person  whose  goods  had 
left  his  possession  involuntarily.  The  only  direct  statement  I  have  seen  that  no  action 
lies  at  common  law  against  a  person  to  whose  hands  goods  had  come,  "because  he 
was  not  party  nor  privy  to  the  delivery,"  comes  from  a  plaintiff's  bill  in  Chancery 
(1413-1417),  Select  Cases  in  Chancery  (S.S.)  113-114;  but  we  cannot  always  trust  the 
statements  in  these  ex  parte  allegations. 

2  Y.B.  20,  21  Ed.  I.  (R.S.)  192 ;  cp.  Y.B.  9  Hy.  V.  Mich.  pi.  22  per  Cottesmore ; 
and  32  Hy.  VI.  Mich.  pi.  20 ;  below  327  n.  2. 

3  Above  321.  *  Above  324  n.  3. 


326  CRIME  AND  TORT 

into  whose  hands  it  had  come.  In  13 13,  in  an  action  of  detinue 
of  charters,  Toudeby,  arguing  for  the  defendant,  objected  that  the 
plaintiff  had  not  shown  that  he  had  bailed  the  charter  to  him, 
or  that  he  (the  defendant)  received  it  by  bailment  from  any  of 
the  plaintiff's  ancestors.  To  this  Scrope,  the  plaintiffs  counsel, 
replied,  "  If  you  disseise  me  and  carry  off  my  charters  and  I  bring 
my  writ  and  demand  these  same  charters,  it  is  then  no  answer  to 
my  writ  to  say  that  I  did  not  bail  you  any  charter.  Likewise  if 
you  should  find  my  charters  you  would  answer  for  the  detinue."  ^ 
In  1329^  it  v/as  stated  that  the  owner  of  a  charter  might  recover 
against  one  who  had  "  found  it  in  the  way  and  defaced  it ; "  and 
it  was  ruled  that  a  person  who  had  defaced  it  while  in  his  posses- 
sion might  be  sued  in  trespass — though  apparently  he  had  not 
taken  it  from  the  plaintiff's  possession.  In  1 343  detinue  for  a 
horse  was  brought  against  executors  personally.  Grene  afterwards 
said,  "  In  whatever  way  it  (the  horse)  came  into  your  possession, 
whether  as  executors,  or  because  you  took  it  out  of  the  possession 
of  some  one  else,  or  because  you  found  it,  if  you  detain  it  I  shall 
have  an  action ;  whereupon,  inasmuch  as  you  do  not  answer  as 
to  the  detinue,  which  is  the  principal  matter  of  the  action,  judg- 
ment." The  other  side  were  driven  to  traverse  the  fact  that  the 
horse  had  come  into  their  possession  and  the  detention.^  In 
1344  there  was  another  case  in  which  the  ground  of  the  action 
was  not  a  bailment  but  a  devenerunt  ad  manus.*  In  1 37 1  detinue 
was  brought  for  an  ass.  ^  The  plaintiff  counted  that  the  ass  strayed 
into  the  seignory  of  the  defendant,  who  took  the  animal  as  an 
estray,  that  he  had  tendered  a  reasonable  sum,  and  that  the 
defendant  had  refused  to  deliver  up  the  ass.  Issue  was  taken 
on  the  sufficiency  of  the  tender.  No  one  seemed  to  suppose  that 
detinue  did  not  lie  in  such  a  case ;  and  this  is  just  such  a  case  as 
would  in  older  time  have  supported  an  action  for  res  adiratcE^' — 
the  man  had  lost  his  property  and  it  had  come  to  the  defendant's 
hands.  In  1410  Thirning  diwd  Hill  agreed  that  detinue  lay 
against  a  stranger  who  found  another's  property  and  declined  to 
restore  it.''' 

lY.B.  6Ed.  II.  (S.S.)  167. 

2Y.B.  2  Ed.  III.  Hil.  pi.  5  Aldehurgh  argued,  "  Vous  poiez  avoir  votre  Prcecipe 
quod  reddat  (i.e.  detinue)  vers  celui  a  qui  vous  baillastez  votre  chartre,  et  il  ouster 
vers  nous  et  issint  votre  recoverie  vers  nous  per  auter  voy ;  "  Scrope  says,  "  Si  vous 
ussez  trove  la  chartre  en  le  voy,  jeo  avera  mon  recoverie  vers  vous  per  le  Praecipe 
quod  reddat ;  "  no  one  seems  to  deny  this. 

•'' Y.B.  17,  18  Ed.  III.  (R.S.)  514,  516. 

4Y.B.  18  Ed.  III.  {R.S.)  214  seqq.  ^y.B,  44  Ed.  III.  Pasch.  pi.  30. 

«H.L.R.  X  379;  The  Court  Baron  (S.S.)  144. 

'  Y.B.  II  Hy.  IV.  Hil.  pi.  20  (p.  46),  "  Queconque  que  soit  en  possession  de  rnohl 
escript  ou  per  bailler,  ou  que  il  trouvast  en  le  chemin  j'avera  accion  vers  luy  pur  le 
possession  et  le  deteiner  .  .  .  quod  Hill  concessit;"  in  Y.B.  9  Hy.  V.  Mich.  pi.  2a 
Cottesmore  says  much  the  same  thing;  cp.  also  Fitz.,  Ab.  Brief e  pi.  644 — a  case  o| 
Mich.  13  Rich.  II. 


PERSONAL  ACTIONS  327 

These  cases  show  that  detinue  sur  trover  was  known  early 
in  the  fourteenth  century.  In  fact,  the  "finding"  was  merely 
a  common  mode  in  which  the  property,  which  the  owner  had 
lost,  got  into  the  hands  of  the  defendant.^  The  action  (whether 
brought  on  a  bailment,  a  devenerunt  ad  manus,  or  a  finding) 
was  not  based  upon  the  mode  in  which  the  defendant  had  ac- 
quired the  possession,  but  upon  the  fact  that  he  detained  another 
person's  property  which  had  got  into  his  hands,  by  finding  or  in 
some  other  manner.  The  plaintiff  must  of  course  show  how  the 
property  got  into  the  defendant's  hands — by  bailment,  by  finding, 
or  as  executor.^  If  he  proved  the  necessary  facts  he  recovered 
in  detinue  even  though  he  had  parted  with  the  goods  involuntarily. 
In  Henry  VI. 's  reign  this  count  in  detinue — sur  trover,  on  the 
finding,  became  common  form.  To  allege  a  finding  was  an 
easy  and  a  usual  way  of  showing  how  goods  had  come  to  the 
defendant's  hands. ^  Littleton's  words  probably  only  refer  to 
this  improvement  in  pleading.  Coke,  at  any  rate,  seems  to 
have  attached  this  meaning  to  them.*  They  certainly  do  not 
imply  that  before  that  time  detinue  only  lay  sur  bailment ;  for 
he  admits  in  so  many  words  that  it  lay  on  a  "  devenerunt  ad 
manus  et  possessionem  defendentis."  ^  The  effect  of  his  words 
was  perhaps  greater  than  the  effect  of  most  casual  utterances  by 
counsel.  They  seem  to  have  given  authority  to  the  growing 
practice  of  using  this  count  in  trover.  Henceforward  the  count 
in  trover  and  the  count  in  bailment  are  the  two  great  types  of 
the  action  of  detinue. 

Thus  the  older  remedies  for  an  involuntary  loss  of  posses- 
sion were  practically  superseded  by  various  newer  remedies. 
If  the  property  was  stolen  the  owner  might  still  bring  the 
appeal  if  he  cared  to  risk  this  very  doubtful  remedy.  It  was 
still  the  only  remedy  by  which  he  might  recover  the  thing  itself 
from  third  persons.  Otherwise  the  thief  must  be  indicted,  and 
if  he  were  convicted  the  owner  lost  all  chance  of  restitution  or 
of  compensation  until  Henry  VIII. 's  statute.^     If  the  property 

1  Cp.  Y.BB.  7  Hy.  VI.  Pasch.  pi.  3 ;  9  Hy.  VI.  Hil.  pi.  4. 

2  Brooke,  Ab.  Detinue  de  Biens  pi.  50  (3  Hy.  IV.) — detinue  sur  bailment;  Y.B. 
35  Hy.  VI.  Mich,  pi.  33  (p.  27)  per  VVangford— trover  is  merely  one  way  of  pleading 
an  action  of  detinue  based  on  a  devenerunt  ad  manus;  cp.  L.Q.R.  xxi  46,  where  Sir 
John  Salmond  clearly  points  this  out.  Ames  has  pointed  out  that  while  in  the  old 
action  for  res  adiratae  the  plaintiff  alleges  that  he  is  the  finder  (above  321),  in 
detinue  sur  trover  he  alleges  that  the  defendant  found  the  things,  Essays,  A.A.L.H. 
iii  440 ;  but  in  view  of  the  fact  that  it  was  not  the  finding,  but  the  detention  that 
was  the  gist  of  the  action,  this  difference  would  not  seem  to  be  very  material. 

3  See  e.g.  Y.B.  12  Ed.  IV.  Mich.  pi.  2. 

^Isaack  v.  Clarke  (1613)  2  Bulstr.  at  p.  312,  "And  a  man  may  count  either  upon 
a  devenerunt  ad  manus  generally,  or  specially  per  inventionem,  and  one  may  at  this 
day  declare  upon  a  devenerunt  ad  manus,  but  the  latter  (per  inventionem)  is  the 
better  .  .  .  This  is  the  most  certain  and  better  count." 

■*  Above  324  n  2.  *Vol.  ii  361. 


328  CRIME  AND  TORT 

was  taken  from  the  owner  without  felonious  intent  he  could 
bring  trespass  against  the  taker.  As  against  third  persons  into 
whose  hands  the  property  had  come  he  could  bring  detinue 
either  on  a  "  devenerunt  ad  manus "  or  in  trover.  But  by 
bringing  these  personal  actions  he  could  only  get  damages. 
The  owner  of  goods  has  a  real  right ;  but  it  can  only  be  enforced 
in  a  personal  action  for  damages.  He  can  get  no  specific  re- 
stitution at  common  lav/. 

(iii)  Legal  doctrines  resulting  from  the  development  of 
these  actions. 

I  have  already  called  attention  to  one  of  the  consequences 
resulting  from  the  fact  that  the  law  gave  no  real  action  for  the 
recovery  of  chattels,  but  only  these  personal  actions  of  trespass 
and  detinue — the  consequence  that  it  has  helped  the  formation 
of  the  modern  distinction  between  real  and  personal  property.^ 
Another  consequence,  which  has  coloured  the  whole  future 
history  of  the  law  as  to  the  ownership  and  possession  of  chattels, 
has  resulted  from  the  fact  that  these  personal  actions  were 
delictual  in  character.  Their  delictual  character,  has  closely 
bound  up  this  branch  of  the  law  with  the  law  of  tort,  because 
it  is  through  these  personal  actions  in  tort  that  it  has  been  de- 
veloped.^ Besides  these  two  general  consequences  which  flowed 
from  the  development  of  these  actions,  other  consequences  of 
a  more  technical  kind  have  resulted  from  the  overlaping  of  these 
various  remedies — criminal,  semi-criminal,  and  civil — in  which 
we  can  see  the  origins  of  important  rules  of  English  law. 

We  have  seen  that  it  might  well  happen  that,  on  the  same 
facts,  an  appeal,  an  indictment,  and  an  action  of  trespass  might 
be  open  to  the  aggrieved  party.  Sometimes  also  a  plaintiff 
might  consider  that  an  action  of  detinue  on  a  devenerunt  ad 
manus  or  a  finding  would  be  better  suited  to  the  facts  of  his 
case.^  Naturally  a  good  deal  of  law  of  a  somewhat  technical 
kind  arose  from  this  overlapping  of  remedies  old  and  new.  It 
was   the    sort   of   subject   with  which    the   mediaeval    common 

1  Above  322. 

2  Maitland,  Forms  of  Action  369 — '*  I  think  we  are  obliged  to  say  that  the  mere 
possessing  of  a  movable  thing  by  one  who  is  not  entitled  to  possess  it  is  a  tort  done 
to  the  true  owner.  It  would  surely  have  been  far  more  convenient  if  we  could  have 
said  that  the  owner's  action  is  in  rem,  that  he  relies  merely  on  the  right  of  ownership, 
and  does  not  complain  that  the  possessor,  who  came  by  the  thing  quite  honestly,  has 
all  along  been  doing  him  a  wrong.  The  foundation  for  all  this  was  abolished  by 
the  Common  Law  Procedure  Act  of  1854  which  enabled  a  judge  to  order  execution 
to  issue  for  the  return  of  a  chattel  detained  without  giving  the  defendant  the  option 
of  paying  the  value  assessed.  .  .  .  But  I  think  we  must  still  say  that  an  action 
whereby  an  owner  claims  his  chattel  is  an  action  founded  on  tort." 

8  Thus  in  Y.B.  33  Hy.  VI.  Trin.  pi.  12  (pp.  26-27)  Prisot,  C.J.,  and  Littleton 
differed  on  the  question  whether  trespass  or  detinue  should  be  brought  against  a 
finder;  cf.  Ames,  Essays,  A.A.L.H.  iii  439. 


PERSONAL  ACTIONS  829 

lawyers  were  very  familiar ;  for  the  various  real  actions  pro- 
vided a  parallel  case  of  a  hierarchy  of  actions  of  varying  dates 
which  were  open,  sometimes  alternatively,  and  sometimes  in 
succession,  to  a  person  claiming  to  be  entitled  to  land.^  In  the 
case  of  these  criminal  or  quasi-criminal  remedies  the  order  of 
superiority  was  chronological.  The  appeal  was  the  oldest 
remedy.  Therefore  it  was,  as  we  have  seen,^  given  priority  to 
the  indictment ;  and  when  this  priority  was  taken  away,  it  was 
provided  that,  in  the  case  of  an  appeal  of  murder,  an  acquittal 
on  an  indictment  should  be  no  bar  to  an  appeal.^  On  the  other 
hand,  trespass  was  a  more  recent  remedy  than  an  indictment ; 
and  therefore  the  indictment  took  precedence  of  it.  It  would 
seem  too  that  trespass,  perhaps  because  of  its  semi-criminal 
character,  was  given  precedence  to  the  action  of  detinue.^ 

It  was  the  precedence  of  the  indictment  to  the  action  of 
trespass  that  was  the  most  rigidly  insisted  on,  because  a  conviction 
for  felony  on  an  indictment  was  most  advantageous  to  the  king. 
Unless  the  king  had  granted  to  some  lord  the  right  to  the 
chattels  of  felons  within  his  manor  or  other  area,  he  was  the 
person  entitled  to  these  chattels.^  This  was  the  direct  result  of 
the  assumption  by  the  crown  in  the  twelfth  century  of  jurisdiction 
over  all  felonies.  The  process  was  nearly  complete  when  Glanvil 
was  writing  ;  ^  and  the  claims  of  the  crown  were  tacitly  admitted 
by  those  who  drafted  Magna  Carta.''  It  has  been  very  truly  said 
that,  in  the  Middle  Ages,  the  royal  prerogative  often  appears  to 
be  simply  some  advantage  over  the  subject  which  the  law  gives 
to  the  king  when  their  rights  conflict.^  The  manner  in  which  the 
king  asserted  his  claims  to  the  goods  of  felons  is  one  of  the  most 
striking  instances  of  the  truth  of  this  saying.  Some  very  good 
illustrations  of  this  fact  are  afforded  by  the  Pleas  of  the  crown 

1  The  lawyers  then  and  later  often  appealed  to  this  analogy,  see  e.g.  Hudson  v. 
Lee  (1589)  4  Co.  Rep.  43a. 

^  Vol.  ii  362  ;  it  was  said  by  counsel  in  1346  that  '*  an  action  of  appeal "  was  of 
an  "higher  nature  "  than  an  action  of  trespass,  Y.B.  20  Ed.  III.  (R.S.)  i  432;  Y.B. 
12  Rich.  II.  i^y  per  Rickhill,  arg. 

3  Vol.  ii  362  ;  3  Henry  VII.  c.  i. 

4  In  Y.B.  I,  2  Ed.  II.  (S.S.)  170  there  is  a  case  in  which  an  action  of  detinue 
is  adjourned  because  the  defendant  alleges  that  she  is  bringing  the  semi-criminal 
action  of  trespass. 

sp  and  M.  ii  164. 

^Glanvil  vii  17;  he  expressly  contrasts  land  with  chattels  from  this  point  of 
view — "  sin  autem  de  alio  quam  rege  tenuerit  is  qui  utlagatus  est  vel  de  felonia 
convictus,  tunc  quoque  omnes  res  suae  mobiles  regis  erunt.  Terra  quoque  per  unum 
annum  remanebit  in  manu  domini  regis,  elapso  autem  anno,  terra  eadem  ad  rectum 
dominum  .  .  .  vertetur ;  "  but  the  process  was  not  quite  complete,  for,  "  Praeterea 
si  de  furto  fuerit  aliquis  condemnatus  res  ejus  mobiles  et  omnia  catalla  sua  vicecomiti 
provinciae  remanere  solent." 

7  McKechnie,  Magna  Carta  (2nd  ed.)  339-340. 

8  Hallam,  Middle  Ages  (ed.  i860)  iii  148  ;  below  460. 


330  CRIME  AND  TORT 

heard  in  the  Eyre  of  Kent  in  1313-1314,^  As  we  have  seen,  it 
was  only  if  the  owner  made  fresh  pursuit,  captured  the  thief  with 
the  goods  in  his  possession,  and  convicted  him  as  the  result  of  the 
appeal,  that  the  owner  saved  his  goods  from  forfeiture."  So  far 
did  the  claims  of  the  crown  go  that,  when  in  a  quarrel  about 
certain  coins  a  man  was  killed,  the  king  claimed  the  coins,  and  the 
judges  took  time  to  consider  what  judgment  they  should  give.^ 
It  would  seem  that  the  severity  of  the  law  as  to  theft-bote — the 
retaking  of  one's  chattels  from  a  thief  in  order  to  favour  or 
maintain  him — was  due  to  this  cause.  The  owner  guilty  of  this 
offence  was  said  at  one  time  to  have  been  punished  capitally ;  ^ 
and  it  is  probable  that  we  must  look  to  these  ideas  for  one  of  the 
roots  of  the  modern  rule  that  agreements  which  have  the  effect  of 
stifling  a  prosecution  are  illegal.  It  is  not  till  the  beginning  of 
the  fifteenth  century  that  we  begin  to  hear  of  any  mitigations  of 
this  rule  in  favour  of  goods  found  in  the  possession  of  a  thief 
which  were  obviously  not  his  property.^  Even  when  Staunford 
wrote  the  old  strict  law  seems  to  have  been  still  in  force  ;  ^'  and  it 
was  not  till  the  seventeenth  and  eighteenth  centuries  that  we 
hear  of  any  substantial  modifications  of  the  crown's  claims^ 

In  so  far  as  these  claims  by  the  crown  hastened  the  disuse  of 
appeals,  by  inducing  the  judges  to  be  astute  to  quash  them,  the 
greed  of  the  crown  had  beneficial  results.  But  it  had  other 
results  which  have  been  less  beneficial.  It  has  confused  men's 
ideas  on  the  subject  of  ownership  and  possession ;  and  it  is  the 
source  of  two  rules  of  our  modern  law  of  tort — the  rule  that  if 
a  tort  amounts  to  a  felony  the  injured  person  cannot  sue  for 
damages  unless  the  tort-feasor  has  been  prosecuted,  and  the  rule 
that  **  in  a  civil  court  the  death  of  a  human  being  cannot  be 
complained  of  as  an  injury."  ^     Of  these  three  consequences  of 

1  The  Eyre  of  Kent  (S.S.)  i  78-79,  82,  84,  89,  151-152 ;  and  for  other  illustrations 
see  Fitz.,  Ab.  Corone  pi.  317-319,  334;  in  the  case  last  cited  goods  bailed  were 
forfeited. 

2  Above  323  and  n.  i.  ^  The  Eyre  of  Kent  (S.S.)  i  95-96. 
^  Winfield,  Present  Law  of  Abuse  of  Legal  Procedure  117,  146-147. 

^Y.B.  12  Rich.  IL  4,  "and  it  was  said  if  a  man  pledge  certain  goods  to  another, 
who  commits  felony  and  is  attainted,  etc.,  the  king  shall  not  have  those  goods,  because 
the  property  in  those  goods  is  throughout  in  the  pledgor." 

^  Praerogative  45b. 

■^  Thus  Hale  says,  Pleas  of  the  Crown  i  251,  that  "  at  common  law  the  king  by 
attainder  of  treason  was  not  entitled  to  any  chattels  that  the  party  had  eji  autre  droit  ;^^ 
Hawkins,  P.C.  ii  c.  49  §  9  says,  "It  seems  agreed  that  all  things  whatsoever  which 
are  comprehended  under  the  notion  of  a  personal  estate,  whether  they  be  in  action 
or  possession,  which  the  party  hath,  or  is  entitled  to  in  his  own  right,  and  not  as 
executor  or  administrator  to  another,  are  liable  to  such  forfeiture; "  he  admits,  however, 
(§  17)  that  stolen  property  waived  is,  as  a  rule,  forfeited  ;  he  tries  {§  9  n.  a)  with  very 
little  success  to  impugne  the  correctness  of  Staunford's  statements  ;  it  is  probable 
that  the  process  of  modification  began  with  terms  of  years  limited  to  the  felon's 
executors,  see  Cranmer's  Case  (1572)  Dyer  309. 

8  Baker  v.  Bolton  (1808)  i  Camp.  493  j>er  Lord  EUenborough,  C.J. 


t 


I 


PERSONAL  ACTIONS  331 

the  manner  in  which  the  crown  insisted  on  the  preference  of  the 
indictment  to  the  action  of  trespass  I  must  at  this  point  say  a  few 
words. 

{a)  It  is  probable  that  the  crown's  claims  to  the  goods  of 
felons  was  one  of  the  causes  which  led  the  lawyers  to  ascribe 
"  property  "  to  thieves.  The  thief  has  the  possession  of  the  stolen 
goods;  and  the  terms  "possession"  and  "property"  were  often 
used  convertibly  in  the  Year  Books.  ^  When  it  is  said  that  the 
thief  has  property  in  the  stolen  goods,  all  that  is  meant  to  be 
asserted  is  the  obvious  fact  that  he  has  possession  of  them.  But 
the  king  continued  to  take  and  keep  the  goods,  though  the 
distinction  between  property  and  possession  was  coming  to  be 
more  clearly  recognized.^  Therefore  it  begins  to  be  said  that 
because  the  king  can  acquire  property  in  the  stolen  goods  the 
thief  himself  must  have  had  such  property.  This,  as  Maitland 
has  pointed  out,  is,  from  the  historical  point  of  view,  an  inversion 
of  logic,  due  to  the  gradual  manner  in  which  the  distinction 
between  possession  and  the  right  to  possession  (i.e.  property  in 
the  modern  sense  of  the  term)  has  arisen.^  ^ 

{b)  The  rule  that  if  a  tort  amounts  to  a  felony  the  injured 
party's  right  of  action  is  barred  does  not  seem  to  be  expressly 
stated  in  the  Year  Books.  Perhaps  the  judges  in  the  Middle 
Ages  considered  it  to  be  unnecessary  to  state  what  they  would 
have  regarded  as  an  elementary  rule  of  procedure.  The  earliest 
express  statement  of  the  rule  occurs  in  the  case  of  Higgins  v. 
Butcher  in  1607.^  In  that  case  a  husband  brought  an  action  of 
trespass  for  assault  on  his  wife  from  the  effects  of  which  she  had 
died  on  the  day  following  the  assault.  Tanfield,  J.,  said  :  "  If  a 
man  beats  the  servant  of  J.S.  so  that  he  dies  of  the  battery,  the 
master  shall  not  have  an  action  against  the  other  for  the  battery 
and  loss  of  the  service,  because  the  servant  dying  of  the  extremity 
of  the  battery,  it  is  now  become  an  offence  to  the  Crown,  being 
converted  into  felony,  and  that  drowns  the  particular  offence  and 
private  wrong  offered  to  the  master  before,  and  his  action  is 
thereby  lost ; "  and  in  this  reasoning  Fenner  and  Yelverton,  J. J., 
concurred. 

^  In  the  Y.BB.  the  term  "  property  "  is  used  (1)  to  signify  possession,  Y.BB.  12 
Rich.  II.  4  ■per  Pynchbek,  C.B.,  2  Ed.  IV.  Pasch.  pi.  9,  cited  above  323  n.  4 ;  or  (2) 
to  signify  the  thing  possessed,  Y.B.  i  Hy.  V.  Hil.  pi.  4,  *'  L'ou  home  demande  certain 
chateux,  et  per  son  bref  est  prove  que  la  propertie  est  devestue  de  son  possession  per 
le  prisel; "  or  (3)  to  signify  the  right  to  possession,  Y.B.  18  Ed.  IV.  Hil.  pi.  5,  "  Si 
jeo  bailie  a  vous  mes  robes  pur  garder,  et  vous  eux  spendez  issint  qu'ils  perishes, 
j'averai  action  de  Detinue,  car  le  property  n'est  altere ;  "  and  cp.  below  356. 

2  The  boroughs  sometimes  secured  some  modificatioH  of  this  principle  by  charter, 
see  Borough  Customs  (S.S.)  ii  xH,  Iviii,  lix. 

•'*  P.  and  M.  ii  164,  "  One  of  the  reasons  why  the  thief  is  said  to  have  '*  property  " 
in  these  goods  is  that  the  king  has  acquired  a  habit  of  taking  them  and  refusing  to 
give  them  up;  "  cp.  Ames,  Essays  A.A.L.H.  iii  542-543. 

4  Yelv.  89. 


332  CRIME  AND  TORT 

It  was  for  some  time  very  doubtful  whether,  in  such  cir- 
cumstances, the  cause  of  action  in  tort  was  wholly  lost,  or 
whether  it  was  only  suspended.  At  a  time  when  all  felonies 
were  punished  by  death,  when  all  the  felon's  chattels  were 
forfeited  to  the  crown,  who  was  not  liable  to  his  debts,  and 
when  his  lands  escheated  to  his  lord,  this  was  a  purely  academic 
question.^  But  in  the  sixteenth  century  it  was  ceasing  to  be 
entirely  academic.  Hale  ^  tells  us  that,  as  a  result  of  statutes 
of  1566  and  1576,^  a  person  convicted  of  a  clergyable  felony 
and  burnt  in  the  hand,  though  he  forfeited  all  the  goods  belong- 
ing to  him  at  the  time  of  conviction,  "  Yet  by  his  burning  in  the 
hand  he  is  put  into  a  capacity  of  purchasing  and  retaining  other 
goods"  ;  and  that  ''presently  upon  his  burning  in  the  hand  he 
ought  to  be  restored  to  the  possession  of  his  lands,  and  from 
thenceforth  to  enjoy  the  profits  thereof."  It  might,  therefore, 
be  a  very  practical  question  whether  the  injured  peirson  had  lost 
his  right  of  action  in  tort,  or  whether  that  right  of  action  was 
only  suspended. 

There  seems  at  first  to  have  been  a  considerable  body  of 
opinion  in  favour  of  the  view  expressed  in  Higgins  v.  Butcher^ 
that  the  right  of  action  was  wholly  lost ;  and  there  was  something 
to  be  said  for  it.  It  was  clear  that  the  appeal  and  the  action  of 
trespass  were  alternative  remedies ;  ^  and  it  was  clear  also  that, 
except  in  the  case  of  the  appeal  of  murder,  acquittal  or  con- 
viction upon  an  indictment  was  a  bar  to  an  appeal.^  Was  it  not 
reasonable,  therefore,  to  hold  that  trespass  and  indictment  were 
alternative  remedies,  so  that  a  conviction  or  an  acquittal  upon 
an  indictment  would  bar  an  action  for  trespass,  just  as  it  would 
bar  an  appeal,  other  than  an  appeal  of  murder?  This  would 
seem  to  have  been  somewhat  the  line  taken  by  the  dissenting 
judgment  of  Jones,  J. ,  in  Markham  v.  Cobb ;  ^  and  there  was 
clearly  a  widespread  opinion  that  this  was  the  law.  Among  the 
proposals  for  the  reform  of  the  law  put  forward  in  1653  ^  was  a 
proposal  that,  "It  shall  not  be  lawful  for  any  person  who  shall 
have  goods  feloniously  taken  away,  to  bring  any  civil  action  for 
the  recovery  thereof,  or  for  damage  for  the  same,  before  he  have 
proceeded  criminally,  with  effect,  against  the  offenders;  but 
that  he  may  bring  his  action  after  such  effectual  prosecution." 

^  In  1621  a  bill  passed  the  House  of  Commons  which  provided  that  the  estates 
of  attainted  persons  should  be  liable  to  their  debts,  but  it  failed  to  pass  the  House  of 
Lords,  Hist.  MSS.  Com.  3rd  Rep.  App.  25. 

2  P.C.  ii  387-389.  3  8  Elizabeth  c.  4 ;  18  Elizabeth  c.  7. 

4Yelv.  89. 

•*  Above  329 ;  Markham  v.  Cobb  (1625)  W.  Jones  at  pp.  148,  149. 

^Vo!.  ii  363  ;  Hale,  P.C.  i  249,  251. 

"  W.  Jones  at  pp.  149,  150.  ^  Somers  Tracts  vi.  239. 


PERSONAL  ACTIONS  333 

Similarly,  in  the  set  of  proposals  for  the  amendment  of  the  law, 
published  in  1657  by  William  Shepherd,  under  the  title  of 
** England's  Balme,"  it  is  said,  "that  it  is  an  hard  law  that  no 
recompense  is  given  to  a  man's  wife  or  children  for  killing  of 
him,  whereas  for  the  beating  or  wounding  of  him  while  he  was 
alive,  he  should  have  had  recompense  for  the  wrong."  ^  Buller,  J., 
in  1 791  considered  that  the  question  was  open;^  and  Lord 
Eldon  in  1810  seems  to  have  been  in  favour  of  the  view  that 
the  right  of  action  was  wholly  lost.^  Nevertheless,  from  the 
first  quarter  of  the  seventeenth  century,  there  had  been  a  series 
of  cases  in  which  the  contrary  view  was  taken.  In  1625  in  the 
case  of  Markhant  v,  Cobb^  trespass  was  brought  for  breaking 
into  the  house  of  the  plaintiff  and  the  taking  of  ;^3000.  The 
defendant  pleaded  that  he  had  been  convicted  of  that  felony, 
and  that  he  had  had  his  clergy.  Doderldge,  J.,  held  that  the 
action  lay,  and  that  the  conviction  for  felony  did  not  take  away 
the  action  for  trespass.  To  this  opinion  he  adhered  after  hearing 
a  second  argument;  and  Whitlock,  J.,  agreed  with  him.  This 
decision  was  followed  in  1652  by  Rolle,  C.J.,  in  the  exactly 
parallel  case  of  Dawes  v.  Coveneigh ;  ^  these  decisions  seem  to 
be  approved  by  Hale  in  his  Pleas  of  the  Crown ;  ^  and  it  is  now 
settled  law  that  the  fact  that  a  tort  to  property  ^  or  to  the  per- 
son ^  amounts  to  felony  does  not  destroy,  but  only  suspends, 
the  right  of  action.  In  such  cases  the  plaintiff's  action  is  stayed 
till  the  felony  has  been  prosecuted.^ 

{c)  The  broad  rule  laid  down  by  Lord  Ellenborough  at  nisi 
prius  in  1808  to  the  effect  that  "in  a  civil  court  the  death  of  a 
human  being  cannot  be  complained  of  as  an  injury,"  ^^  admits  of 
two  perfectly  distinct  applications.  Firstly,  it  covers  part  of  the 
ground  covered  by  the  maxim  actio  personalis  moritur  cum  persona 
— the  representative  of  the  deceased  victim  of  a  tort,  which  has 
caused  his  (the  victim's)  death,  cannot  sue  in  his  representative 
, capacity. ^^  Secondly,  it  makes  it  impossible  for  a  plaintiff  to  sue 
[a  defendant  for  a  wrong  committed  by  the  defendant  to  the 
iplaintiff,  when  that  wrong  consists  in  damage  causing  the  death 

1  At  p.  148. 

2  Master  v.  4,  Miller,  T.R.  at  pp.  332-333. 

3 Cox  V.  Paxton,  17  Ves.  329;  he  remarked,  at  p.  331,  "those  who  obtained 
this  Act  of  Parliament,  making  the  embezzlement  of  their  clerks  felony,  are  much 
surprised  at  the  consequence,  that  they  cannot  recover  their  money." 

4  Latch  144;  S.  C.  W.  Jones  147. 

5  Style,  346.  ep.C.  i  546-547- 

7  Wells  V.  Abrahams  (1872)  L.R.  7  Q.B.  554 ;  cp.  Midland  Insurance  Co.  v. 
Smith  (i88t)  6  Q.B.D.  561. 

8  Smith  V.  Selwyn  [1914]  3  K.B.  98.  » Ibid. 
^"  Baker  v.  Bolton  {1808)  i  Camp.  493. 

1^  For  this  maxim  and  its  history  see  below  576-583,  584. 


334  CRIME  AND  TORT 

of  a  person  in  the  continuance  of  whose  life  the  plaintiff  had  an 
interest.  It  is^clear  that  the  second  application  of  the  principle 
has  nothing  to  do  with  the  maxim  actio  personalis^  etc.,  as  both 
plaintiff  and  defendant  are  still  alive.  The  death  is  simply  an 
element  in  the  cause  of  action.  It  is  with  the  second  of  these 
applications  of  the  principle  that  I  am  here  concerned.  At  this 
point  I  am  only  concerned  with  the  first  in  so  far  as  it  has  affected 
the  development  of  the  broad  principle  which  we  are  considering. 

It  is  probable  that  the  origin  of  the  second  application  of  this 
principle  is  to  be  found  in  the  rule,  which  has  just  been  discussed, 
that,  if  a  cause  of  action  in  tort  disclosed  a  felony,  the  right  of 
action  in  tort  was  affected.^  This  was  suggested  in  O shorn  v. 
Gillett^  and  no  other  suggestion  has  ever  been  made.  But  we 
have  seen  that  it  is  now  settled  that  this  rule  only  suspends,  but 
does  not  destroy,  the  right  of  action  in  tort.  It  would  seem  to 
follow,  therefore,  that  the  mere  fact  that  a  felonious  tort  to  the 
person  results  in  death  should  not  debar  a  person  who  has 
suffered  loss  by  the  death  from  suing  in  tort  for  such  damages 
as  he  can  prove  that  he  has  sustained,  provided  that  the  felony 
has  been  prosecuted.  A  fortiori  he  ought  to  be  able  to  sue  if  the 
tortious  act  causing  death  does  not  amount  to  a  felony.  In  1668, 
in  the  case  of  Cooper  v.  Withaniy  Levinz,  the  reporter,  seems  to 
think  that  this  was  the  logical  result  of  the  cases  of  Markham  v. 
Cobb  and  Dawes  v.  Coveneigh.^  But  logic  has  been  disregarded  ; 
and  in  cases  where  the  tort  results  in  death  a  right  of  action 
is  denied.  What,  then,  is  the  reason  for  a  rule  which,  even  on 
technical  grounds,  seems  to  be  illogical?  The  absence  of  all 
authority  between  the  seventeenth-century  cases  and  Lord 
EUenborough's  dictum  in  Baker  v.  Bolton  makes  it  impossible  to 
give  a  certain  answer  to  this  question.  I  would  suggest  tentatively 
that  the  two  following  causes  may  have  helped  its  growth : 

(i)  In  the  great  majority  of  cases  in  which  death  ensues  as  a 
result  of  a  tort  felony  has  been  committed.  In  a  large  number  of 
cases  also  the  persons  damaged  by  the  tort  are  the  deceased's 
near  relations.  I  would  suggest,  therefore,  that  the  rule  based 
upon  the  maxim  actio  personalis^  etc.,  became  confused  with  the 
rule  based  upon  the  fact  that  the  tortious  act  was  a  felony.  It  is 
true  that  in  Higgins  v.  Butcher  "^  the  Court  seems  to  have  been 
perfectly  well  aware  of  the  distinction   between  the  husband's 

1  Above  331-333-  ^  (1873)  L.R.  8  Exch.  at  p.  96. 

^  I  Lev.  247  :  "  Twysden  said,  that  an  action  did  not  lie  for  the  master  for  beating 
of  his  servant  to  death,  for  that  he  lost  his  service ;  for  the  party  ought  to  be  indicted 
for  it,  as  is  Yelv.  go.  But  see  Latch  144,  Markham  against  Cobb,  Style  346,  347, 
Dawes  against  Coveneigh,  that  trespass  Hes  for  a  felonious  taking  money  after  the 
party  has  been  convicted  and  burnt  in  the  hand." 

4(1607)  Yelv.  89. 


PERSONAL  ACTIONS  335 

claim  to  sue  as  representing  his  wife  and  his  claim  to  sue  in  his 
own  right.  The  first  claim  was  disallowed,  and  then  the  Court 
decided  that  the  second  must  also  be  disallowed  for  the  reasons 
set  out  above. ^  But  we  can  see  signs  of  this  confusion  in  the 
passage  from  Shepherd's  book  cited  above.^  It  is  equally 
apparent  in  the  preamble  to  the  Fatal  Accidents  Act,  1848,^ 
which  recites  that  ''  No  action  is  now  maintainable  against  a 
person  who  by  his  wrongful  acts  may  have  caused  the  death  of 
another  person."  But  Bramwell,  B.,  pointed  out  in  Osborn  v. 
Gillett^  that  the  general  statement  contained  in  that  preamble 
must  be  cut  down  by  reference  to  the  subject-matter  of  the 
statute,  and  that  it  must  be  taken  to  refer  to  the  survivorship  of 
the  cause  of  action  which  the  deceased  would  have  had  if  he  had 
survived ;  and  in  this  view  Lord  Alverstone  concurred  in  Clark 
V.  General  Omnibus  Co.^  I  should  like  to  suggest,  therefore, 
that  when  Lord  Ellenborough  gave  his  ruling  in  Baker  v.  Bolton  he 
was  the  victim  of  the  same  confusion  of  ideas.  As  we  have  seen, 
his  statement,  like  the  statement  in  the  preamble  to  the  Fatal 
Accidents  Act,  1848,  is  so  wide  that  it  covers  these  two  wholly 
distinct  rules  of  law.  (2)  This  wide  principle  was  laid  down  by 
Lord  Ellenborough  at  nisi  prius.  It  was  not  the  considered 
judgment  of  the  court ;  and  it  was  uttered  at  a  time  when  there 
was  very  considerable  doubt  whether  the  fact  that  a  civil  wrong 
was  also  a  felony  destroyed  or  only  suspended  the  right  of  action 
in  tort.^ 

We  have  seen  that  the  criminal  appeal  of  murder  was  in 
practice  so  used  that  it  afforded  a  partial  mitigation  of  this  rule 
of  law. '^  But  criminal  appeals  are  now  things  of  the  past.^  At 
the  same  time  it  is  now  well  recognized  that  the  rule  based  on 
the  maxim  actio  personalis  moritur  cum  persona  is  quite  distinct 
from  this  rule.^  All  the  evidence  points  to  the  fact  that  the  rule 
is  based  ultimately  on  the  principle  that  no  action  will  lie  for  a 
ptort  which  is  also  a  felony  till  the  felon  has  been  prosecuted — a 
>rinciple  which,  as  we  have  seen,  is  ultimately  traceable  to  the 
[preference  which,  in  the  pecuniary  interest  of  the  crown,  was 
;iven  to  the  indictment  over  the  action  of  trespass.  ^^  If  the  rule 
rests  on  this  basis  it  follows  that  it  cannot  be  supported  in  the 
form  in  which  it  was  propounded  by  Lord  Ellenborough.  On 
the  contrary  there  is  no  reason  why  a  civil  action  should  not 
lie  for  a  tort  which  results  in  death,  provided  that,  if  a  felony  has 
been  committed,  the  felon  is  first  prosecuted. 

1  Above  331.  2  Above  333. 

"9  and  10  Victoria  c.  93.  *  (1873)  L.R.  8  Exch.  at  p.  95. 

'^[1906]  2  K.B.  at  pp.  658-659.  «  Above  332-333. 

7  Vol.  ii  363.  8  Ibid  364. 

^The  Admiralty  Commissioners  v.  S.S.  Amerika  [1917]  A.C.  at  pp.  43,  44. 

^'^  Above  329-330. 


336  CRIME  AND  TORT 

The  rule  as  laid  down  by  Lord  Ellenborough  is  obviously 
unjust ;  ^  it  is  technically  unsound  because,  as  we  have  seen,  it  is 
based  upon  a  misreading  of  legal  history ;  ^  and  yet  it  is  the  law  of 
England  to-day,  for  it  was  upheld  by  the  House  of  Lords  in  191 7 
in  the  case  of  The  Amerika.^  The  House  of  Lords  attempted 
to  justify  its  decision  by  an  appeal  to  legal  history.  But  the 
display  of  historical  knowledge  which  was  made  on  this  occasion 
is  an  object  lesson  both  in  the  dangers  of  hastily  acquiring  such 
knowledge  for  a  special  occasion,  and  in  the  consequences  of  the 
neglect  of  this  branch  of  legal  learning.^  It  is  not  the  only  case 
in  our  books  which  shows  that  the  historical  continuity  of  English 
law  demands  a  thorough  knowledge  of  its  history  if  those  "  apices 
juris,"  upon  which  the  courts  are  sometimes  called  to  adjudicate, 
are  to  be  correctly  determined. 

But  we  must  return  from  this  modern  chapter  of  accidents  to 
the  Middle  Ages. 

(2)    Voluntary  parting  with  possession. 

The  general  term  used  to  express  any  voluntary  parting  with 
possession  is  the  term  "bailment."  This  term  covers  many  dif- 
ferent kinds  of  transactions — loans  for  use  or  consumption, 
pledges,  hirings,  and  deliveries  for  many  special  purposes,  such 
as  safe  custody  or  carriage.  Any  person  to  whom  an  owner 
delivers  possession  of  his  goods  for  a  special  purpose  is  a  bailee ;  ^ 
and,  if  we  except  the  case  of  such  persons  as  servants,^  anyone 
who  has  the  de  facto  control  of  another's  goods  is  in  possession 
of  them.  We  have  seen  that  the  bailee,  being  in  possession,  was 
the  person  who  could  pursue  all  the  remedies  of  an  owner,  such 
as  the  appeals  of  robbery  or  larceny  or  the  action  for  res  adiratcs. 
Indeed,  the  character  of  these  remedies  almost  necessitated  their 
being  brought  by  the  person,  who,  being  in  possession,  knew  at 
once  of  his  loss.  Nevertheless  the  bailee  was  never  regarded  as 
the  owner.  "  If,"  as  Maitland  has  said,^  "  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.  But  we  know  that  this 
happened ;  we  know  that  before  the  end  of  the  Middle  Ages  the 

1  Csborn  v.  Gillett  (1873)  L.R.  8  Exch.  at  pp.  93-Q9per  Lord  Bramwell ;  Pollock, 
Torts  (loth  ed.)  67-68. 

2  Above  334. 

3  Admiralty  Commissioners  v.  S.S.  Amerika  [1917]  A.C.  38. 
^For  some  criticism  of  that  case  see  App.  VIII. ;  it  is  clear  that  the  rule  owe 

nothing  to  Roman  law,  as  is  admitted  in  The  Amerika  [1917]  A.C.  at  p.  44 ;  indeed,  thi 
Roman  Aile  was  less  harsh  than  the  English  rule,  and  was  based  on  social  conditionj 
very  different  from  those  prevailing  in  a  modern  state,  see  L.Q.R,  xxxii  436-437. 

5  P.  and  M.  ii  168,  169. 

"Below  363-365.  '  P.  and  M.  ii  176. 


I 


PERSONAL  ACTIONS  337 

bailor  is  owner,  has  'the  general  property'  in  the  thing,  and  no 
Act  of  Parliament  has  given  him  this."  The  bailor  then,  is  the 
owner.  But  the  conception  of  ownership  is  not  as  yet  the  con- 
ception which  is  familiar  to  modern  lawyers.  As  we  have  seen, 
the  definite  outline  of  such  conceptions  as  ownership  and  obligation 
is  the  product  of  a  mature  legal  system  ;  and  the  outline  becomes 
more  and  more  blurred  as  we  go  back  to  primitive  times.^  And 
so,  although  the  bailor  was  the  owner,  the  sum  of  his  rights  as 
owner  was  originally  his  better  right  as  against  the  bailee  to  get 
possession ;  for  this  better  right  to  get  possession  was  the  only 
form  of  ownership  which  the  mediaeval  common  law  recognized. 
He  could  assert  this  right  by  the  action  of  detinue  in  which  he 
claimed  "  his"  things  detained  by  the  bailee ;  but  this  was  the  ex- 
tent of  his  rights.  Till  he  had  recovered  possession  his  position 
was  like  that  of  the  disseised  owner  of  land.^  He  was  deprived  of 
most  of  the  fruits  and  consequences  of  ownership,  while  the  bailee 
in  possession  was,  as  against  all  the  world  except  his  bailor,  treated 
as  owner.^  English  law  starting  from  that  common  basis  of 
Germanic  custom  of  which  there  are  traces  in  the  Anglo-Saxon 
period,^  gave  all  the  rights  of  ownership — rights  of  action  and 
powers  of  disposition — to  the  bailee ;  and  it  still  retains  a  sub- 
stantial link  with  this  primitive  idea.  A  bailee  can,  and  always 
could,  sue  one  who  has  taken  goods  from,  or  damaged  goods  in 
his  possession,  as  though  he  were  owner,  and  the  defendant  can- 
not set  up  thejus  tertii  of  the  bailor  unless  he  claims  through  it.^ 
It  is  for  this  reason  that  originally  the  liability  of  the  bailee 
to  the  bailor  was  absolute.  The  bailee,  having  been  given  the 
position  of  owner  as  regards  third  parties,  it  was  only  fair  that 
he  should  be  held  liable  to  the  bailor  ;  ^  and  in  the  primitive 

^  Vol.  ii  79.  2  Above  92. 

3  Y.B.  II  Hy.  IV.  Mich.  pi.  39 — this  was  an  action  of  replevin  against  a  defendant 
who  pleaded  that  the  cattle  distrained  belonged  to  another ;  and  it  was  suggested 
that,  as  this  was  the  case,  the  plaintiff  should  not  have  said  the  cattle  were  his,  but  that 
they  were  in  his  •*  custodia ;  "  to  this  suggestion  Thirning,  C.J. ,  said  "  Ne  pledes  pluis 
de  cest  matter,  car  vers  vous  il  ad  property ; "  cp.  Bordwell,  Property  in  Chattels 
H.L.R.  xxix  502,  737.  On  the  other  hand,  in  Y.B.  11  Hy.  IV.  Mich.  pi.  2,  where  a 
villein  brought  Trespass,  a  plea  that  the  goods  were  another's,  i.e.  his  owner's,  was 
upheld — but  this  was  probably  due  to  the  fact  that  he  was  a  villein ;  as  to  this  see 
Y.B.  18,  19  Ed.  III.  (R.S.)  500-502;  Select  Pleas  of  the  Crown  (S.S.)  pi.  138  p.  90; 
for  another  explanation  of  this  case  see  below  346. 

^  Vol.  ii  79-80.  ''The  Winkfield  [1902]  P.  42. 

^Holmes,  Common  Law  166-167;  "that  the  bailor  has  no  action  against  any 
person  other  than  his  bailee,  no  action  against  one  who  takes  the  thing  from  his 
bailee,  no  action  against  one  to  whom  the  bailee  has  sold  or  bailed  the  thing — this 
is  a  proposition  which  we  nowhere  find  stated  in  all  its  breadth.  No  English  judge 
or  text  writer  hands  down  to  us  any  such  maxim  as  Mobilia  non  hahent  sequelam. 
Nevertheless  we  can  hardly  doubt  that  this  is  the  starting  point  of  our  common  law," 
P.  and  M.  ii  171 ;  I  think  that  this  is  true  in  spite  of  Mr.  Bordwell's  reasons,  H.L.R. 
xxix  505-508 ;  it  seems  to  me  that  Mr.  Bordwell  underrates  the  amount  of  con- 
tinuity existing  between  the  ideas  of  older  law  and  the  new  law  laid  down  by  the 

VOL.    HI.— 22 


338  CRIME  AND  TORT 

period,  when  these  rules  orighiated,  we  must  not  expect  to  find 
a  nice  discrimination  between  degrees  of  liability.  Liability  and 
strict  liability  are  all  one.  Thus  the  position  of  the  bailor  and 
the  bailee  with  respect  to  the  chattels  bailed  was  governed  by 
principles  which  were  both  logical  and  definite.  The  extent  of 
the  bailee's  powers  was  compensated  for  by  the  extent  of  his 
liability  to  the  bailor :  the  meagreness  of  the  bailor's  powers  was 
compensated  for  by  denying  to  the  bailee  any  defence  against  his 
bailor's  action  for  the  return  of  the  goods. 

Glanvil  is  perhaps  the  latest  authority  in  which  we  can  catch 
a  glimpse  of  this  state  of  the  law.  He  does  not,  it  is  true,  say 
that  if  the  goods  are  stolen  the  bailee  alone  can  sue.  But  he 
does  say  that  the  appeal  of  larceny  could  not  be  brought  by  the 
bailor  against  the  bailee,  even  if  the  bailee  misused  the  goods, 
because  the  bailor  had  delivered  the  goods  to  the  bailee ;  ^  and 
he  is  clearly  very  uncertain  whether  the  bailor  had  any  rights 
against  the  bailee  if  the  bailee  misused  the  goods.  Since  it  is 
quite  clear  that  under  the  older  law  a  bailee  could  \)nng  the 
appeals  of  robbery  or  larceny,  and  that  such  appeals  were  brought 
by  bailees  in  the  period  when  Glanvil  wrote  and  afterwards,^ 
it  is  possible  that  it  was  only  the  bailee  who  could  bring  these 
appeals  if  the  goods  were  stolen  from  him ;  and  this  rule  could 
be  justified  on  Roman  principles  ;  for  we  may  remember  that  the 
Roman  law,  though  as  a  rule  it  refused  possession  to  bailees, 
originally  allowed  them  and  not  the  owner  to  bring  the  actio  furti,^ 
if  and  when  they  were  liable  over  to  their  bailor.  That  English 
law  in  the  time  of  Glanvil  followed  the  same  rules,  is  the  more 
probable  in  that  Glanvil  states  definitely  that  the  bailee  is 
absolutely  liable.  He  makes  it  quite  clear  that  no  care,  no 
accident,  no  vis  major  excused  him  if  the  goods  were  lost  or 
damaged  while  in  his  custody  ;  *  and  his  statement  of  the  law  is 

king's  court  in  the  thirteenth  century  ;  in  fact,  the  mixture  of  the  old  ideas  and  the 
new  seems  to  me  to  have  given  rise  to  a  conception  of  the  bailee's  position  which 
owes  something  both  to  the  primitive  period  and  to  the  thirteenth  century  ideas, 
below  342-343- 

1  "  Praeterea  si  quis  usque  ad  certum  locum  rem  suam,  vel  usque  ad  certum 
tempus  alii  commodaverit,  et  is  qui  eam  ita  recepit  ultra  ilium  locum  vel  illud  tempus 
eadem  re  usus  fuerit,  an  quantum  id  emendare  debeat,  vel  sub  qua  probatione  vel 
cujus  idem  sit  judicandum  quero.  A  furto  enim  omni  modo  excusatur  per  hoc  quod 
initium  habuerit  suas  detentionis  per  dominum  illus  rei,"  Glanvil  x  13 ;  but  an 
appeal  would  lie  if  and  when  the  bailee  ceased  to  be  a  bailee,  Select  Pleas  of  the 
Crown  (S.S.)  pi.  126. 

2  Select  Civil  Pleas  (S.S.)  pi.  8  (1200)  ;  Select  Pleas  of  the  Crown  (S.S.)  pi.  105 
p.  60  (1212) ;  below  339-340. 

3  Justinian,  Instit.  iv  i.  13-17;  vol.  ii  279. 

^  **  Sin  autem  res  ipsa  interierit  vel  perdita  fuerit,  quocunque  modo  in  custodia 
tua,  omni  modo  teneris  ad  rationabile  pretium  mihi  restituendum,"  Glanvil  x  13 ; 
cp.  P.  and  M.  ii  169. 


k 


PERSONAL  ACTIONS  339 

borne  out  by  a  case  of  the  year  1200.^  We  have  seen  that 
Glanvil's  book  was  inspired  by  the  influence  of  the  legal  re- 
naissance of  the  twelfth  century.^  But,  just  as  when  dealing  with 
the  older  restraints  upon  the  alienation  of  land,  he  preserves  the 
memory  of  rules  which,  when  he  wrote,  were  on  the  point  of 
becoming  obsolete ;  ^  so,  in  dealing  with  the  position  of  bailor 
and  bailee,  he  adheres  very  closely  to  the  old  legal  conceptions 
which  the  new  Roman  learning  was  rapidly  undermining. 

The  new  ideas  introduced  by  this  learning  tended  to  dislocate 
both  parts  of  this  primitive  scheme  for  the  regulation  of  the 
rights  of  bailor  and  bailee.  As  we  have  seen,  these  new  ideas 
operated  in  England  both  quickly  and  powerfully  through  the 
royal  central  courts.^  Two  ideas  in  particular  exercised  a  dis- 
turbing influence  upon  the  two  parts  of  this  scheme.  The  first 
was  the  influence  of  the  Roman  conception  of  dominium  which,  as 
we  have  seen,^  early  made  its  influence  felt  in  the  land  law.  The 
second  was  the  influence,  which  filtered  through  the  canon  law, 
that  liability  should  be  based  on  some  fault.^  Both  these  ideas 
were  beginning  to  make  their  influence  felt  at  the  beginning  of 
the  thirteenth  century.      Let  us  look  at  their  effects. 

(i)   The  influence  of  the  Roman  conception  of  dominium. 

In  the  thirteenth  century  there  are  numerous  instances  of 
appeals  of  robbery  or  larceny  brought  by  bailees,  in  which  the 
bailee  alleged,  not  that  the  goods  were  his,  but  that  they  were  in 
his  custodia?  The  bailor  is  regarded  as  the  owner  ;  and  it  is 
probable  that  both  Bracton,^  and  Britton  ^  considered  that  either 


1  Select  Civil  Pleas  (S.S.)  pi.  8,  where  it  was  held  that  the  fact  that  a  bailee  was 
bbed  of  the  goods,  for  which  robbery  he  is  bringing  an  appeal,  was  no  defence. 

2  Vol.  ii  203.  ^  Above  73-75.  •*  Vol.  ii  146,  176-177. 
5  Above  77.                           ^  Vol.  ii  258-259,  451-452. 

^  '*  Omnia  ista  habuit  ipse  in  custodia  per  balliam  matris  suas,  et  de  custodia  sua 
ea  robata  fuerunt,"  Select  Pleas  of  the  Crown  (S.S.)  pi.  105,  p.  60  (1212) ;  Bracton's 
Note  Book,  cases  723  (1225),  824  (1233);  Bracton  f.  146a;  later  it  seems  to  have 
been  immaterial  whether  a  bailee  alleged  custody  of  or  property  in  the  goods,  Y.BB. 
48  Ed.  III.  Mich.  pi.  8  ;  11  Hy.  IV.  Mich.  pi.  39 ;  in  Y.B.  11  Hy.  IV.  Mich.  pi.  46,  p.  24, 
it  was  said  that  the  Chancery  clerks  would  not  grant  a  writ  for  goods  "in  custodia," 
for  which  reason  doubtless  the  phrase  dropped  out ;  see  H.L.R.  xxix  731. 

8  •'  Et  non  refert  utrum  res,  quae  ita  subtracta  fuit,  extiterit  illius  appellantis 
propria,  vel  alterius,  dum  tamen  de  custodia  sua,"  f.  151a;  it  may  be  noted,  however, 
that  at  f.  103b  Bracton  seems  to  be  trying  to  distinguish  larceny  from  robbery  in  this 
respect — "  Sciendum  quod  actio  furti  sive  condictio  domino  rei  competat  contra 
fiirem  et  ejus  successorem  et  contra  quemlibet  detentorem.  Actio  vi  bonorum 
raptorum  de  rebus  mobilibus  vi  ablatis  sive  robbatis  datur  domino  rerum  vel  de  cujus 
custodia  surreptae  sunt,  et  qui  intravit  in  solutionem  erga  dominum  suum,  ita  quod 
ejus  intersit  agere ;  "  as  to  this  see  Maitland's  comment,  Bracton  and  Azo  (S.S.)  182 ; 
Bracton's  treatment  of  robbery  and  larceny  at  f.  157  does  not  lead  me  to  think  that 
he  really  meant  to  put  great  stress  on  the  distinction  between  robbery  and  larceny ; 
on  this  matter  I  do  not  agree  with  Mr.  Bordwell,  H.L.R.  xxix  507-508,  748-749, 
though  I  think  he  is  probably  right  in  thinking  that  it  is  the  appeal  of  robbery  which 
is  the  prototype  of  trespass. 

"  Bk.  i  c.  16  (Nichols  i  55),  *'  Let  careful  enquiry  also  be  made  concerning 


340  CRIME  AND  TORT 

the  bailor  by  virtue  of  his  ownership,  or  the  bailee  by  virtue  of 
his  custodia,  had  the  right  to  bring  these  appeals.  The  Mirror 
of  Justices  also  seems  to  say  that  this  is  the  law.^  But  these 
statements  are  not  quite  precise ;  and  in  particular,  they  leave  it 
uncertain  whether  the  bailor  could  sue  if  the  goods  were  taken 
from  the  custody  of  the  bailee.^  It  may,  however,  be  remembered 
that  Bracton  identifies  the  appeal  of  larceny  with  the  actio  furti ;  ^ 
and,  following  Justinian's  Institutes,^  he  perhaps  meant  to  give  the 
bailor  the  right  to  elect  whether  he  would  sue  his  bailee  or  the 
thief.  However  that  may  be,  it  is  clear  from  his  and  from  other 
contemporary  statements  that  the  rights  of  the  bailor  were  gaining 
recognition ;  and,  as  we  shall  see,  it  is  probable  that  this  recog- 
nition had  something  to  do  with  the  permission,  given  to  the 
bailor  in  the  first  half  of  the  fourteenth  century,  to  bring  trespass 
against  a  third  person  who  had  taken  the  goods  from  the  bailee.^ 
But  when  the  custodia  of  the  bailee  was  thus  distinguished  from 
the  ownership  of  the  bailor,  it  was  inevitable  that  the  right  of  the 
bailee  to  sue  as  if  he  were  owner  should  begin  to  appear  some- 
what anomalous.  Therefore  the  bailee  usually  alleged  in  these 
appeals  that  he  was  accountable  to  the  owner ;  ^  and  Bracton 
perhaps  thought  that  this  allegation  was  necessary.'''  Here  again 
he  was  perhaps  influenced  by  his  identification  of  the  appeal  of 
larceny  with  the  actio  furti ;  for  Roman  law  gave  the  actio  furti 

robbers,  thieves  and  Such  like  offenders ;  as  to  whom  our  will  is  that  if  those  who  rob 
or  steal  the  goods  of  another  amounting  to  twelve  pence  or  more,  be  freshly  pursued 
for  the  same  by  the  owners,  or  by  those  out  of  whose  custody  the  things  were  stolen 
or  robbed  .  .  .  they  shall  forthwith  be  taken,  etc." 

^  "  In  these  actions  {the  appeals  of  robbery  and  larceny)  two  rights  may  be 
concerned — the  right  of  possession,  as  is  the  case  where  a  thing  is  robbed  or  stolen 
from  the  possession  of  one  who  had  no  right  of  property  in  it  (for  instance  where  the 
thing  has  been  lent,  bailed,  or  let) ;  and  the  right  of  property,  as  is  the  case  where 
the  thing  is  stolen  or  robbed  from  the  possession  of  one  to  whom  the  property  in  it 
belongs,"  the  Mirror  (S.S.)  57,  cited  H.L.R.  xxix  509. 

2 "These  statements  are  brief  and  unsatisfactory.  They  were  incidental  to  an 
account  of  criminal  proceedings,  and  lack  the  precision  they  would  have  had  if  they 
had  been  part  of  an  exposition  of  the  law  of  bailments.  They  allow  the  appeals  to 
the  owner  and  to  the  one  having  custody,  and  leave  us  to  speculate  as  to  whether 
the  owner  whose  goods  were  taken  from  the  custody  of  another  was  allowed  them 
or  not,"  Bordwell,  H.L.R.  xxix  510. 

3  Above  338.  ^  Instit.  IV.  i.  16. 

^  Below  348. 

6  Bracton  f.  103b  cited  above  339  n.  8 ;  we  see  such  an  allegation  in  Select 
Pleas  of  the  Crown  (S.S.)  pi.  126  p.  81 — ♦'  ipse  (the  appelor)  intravit  in  solucionem^ 
versus  dominum  suum  pro  predicto  firmaculo  et  anulo." 

'  "  Appellat  quandoque  quis  alium  de  alterius  rebus,  quam  de  suis  propriis,  ut 
ab  aliquo  robbatas  fuerint  res  aliquae,  quas  habuerit  in  custodia  sua,  de  rebus  domini 
sui  vel  alterius,  et  quo  casu,  oportet  eum  docere,  quod  sua  intersit  appellare,  quia 
alias  appellum  non  habebit,  non  magis  quam  de  morte  alicujus  extraneae  personse. 
De  re  vero  aliena  docere  oportet,  quod  de  custodia  sua  robbata  fuerit  simul  cum  rebus 
suis  propriis,  vel  sine,  et  quod  ipse  custos  appellans  intravit  in  solutionem  de  tant 
pecunia  erga  dominum  suum,"  f.  146;  Bracton's  Note  Book  case  1664;  above  n.  6 
H.L.R.  xxix  731 ;  P.  and  M.  ii  170  and  n.  5. 


PERSONAL  ACTIONS  341 

to  the  bailee  because  he  was  answerable  over.^  Thus  the  view 
that  the  bailee's  responsibility  over  to  the  bailor  was  the  reason 
for  his  right  to  sue  was  introduced  into  the  law  ;  and  that  it 
rapidly  became  the  view  universally  accepted  both  in  England 
and  abroad  is  illustrated  by  the  fact  that  Beaumanoir,  whose 
book  was  written  slightly  later  in  the  thirteenth  century  than 
that  of  Bracton,  and  under  much  the  same  set  of  influences, 
adopted  a  similar  explanation  of  the  bailee's  right  of  action.^ 

(ii)  The  influence  of  the  Roman  ideas  of  liability. 

Under  this  same  influence  Bracton  was  prepared  to  modify 
the  extent  of  the  bailee's  responsibility.^  "  It  is  plain,"  says 
Maitland,^  "that  already  in  his  day  English  lawyers  were  be- 
coming familiar  with  the  notion  that  bailees  need  not  be  abso- 
lutely 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."  In  this  he  was  followed  by 
Britton.  Britton  would  excuse  a  bailee  if  the  goods  were  lost 
*•  by  accident  of  fire,  water,  robbery,  or  larceny,"  for,  "against 
such  accidents  no  one  ought  to  answer  for  things  lost,  unless  they 
happened  by  his  fault  or  negligence ; "  ^  and  effect  was  given  to 
this  view  in  1299  when  robbery  was  allowed  as  a  good  defence 
to  a  bailee  in  an  action  of  detinue.^  But,  as  we  have  seen,  these 
Roman  ideas  ceased  in  the  course  of  the  fourteenth  century  to 
influence  English  law/  Therefore  Bracton's  rules  did  not  in  the 
Middle  Ages  become  part  of  English  law ;  and,  in  spite  of 
Chief  Justice  Holt's  efforts,^  they  are  not  even  now  thoroughly 
acclimatized. 

There  are  indeed,  some  indications  in  the  Year  Books  of  the 
fourteenth  and  fifteenth  centuries  of  a  tendency  to  introduce 
some  modifications  of  the  bailee's  liability.  In  a  doubtful  case 
of  1 3 1 5,  which    has  been    very  variously  interpreted,    there  is 

Unstit.  iv  I.  13-17;  Bracton  and  Azo  (S.S.)  183. 

2  Holmes,  Common  Law  167 ;  for  its  speedy  adoption  in  England  see  below  342. 

3 "  Qui  pro  usu  vestimentorum  auri  vel  argenti,  vel  alterius  ornamenti,  vel 
jumenti  mercedem  dederit,  vel  promiserit,  talis  ab  eo  desideratur  custodia,  qualem 
diligentissimus  pater  familias  suis  rebus  adhibet,  quam  si  praestiterit,  et  rem  aliquo 
casu  amiserit,  ad  eam  restituendum  non  tenebitur,"  f.  62b ;  with  regard  to  a  person 
"qui  utendum  accipit"  he  says,  f.  99b,  •*  ad  vim  majorem  vel  casus  fortuitos  non 
tenetur  quis  nisi  culpa  sua  interuenerit,"  though  in  a  preceding  sentence  he  has 
apparently  made  the  commodatarius  almost  if  not  quite  absolutely  liable,  see  vol. 
ii  275  ;  the  pledgee  is  under  the  same  liability  as  "  is  qui  utendum  accipit,"  ibid. ; 
while  the  depositee  is  not  even  liable  for  his  negligence ;  as  to  the  confusion  of  ideas 
in  this  passage  see  vol.  ii  275-276 ;  and  Maitland's  note,  Bracton  and  Azo  (S.S.) 
147,  there  cited. 

■*  P.  and  M.  ii  170.  ^  Bk,  i  c.  xxix,  Nichols  i  157. 

^  Brinkburn  Cartulary  p.  105,  cited  P.  and  M.  ii  170. 

'  Vol.  ii  287. 

^Coggs  v.  Bernard  {1703)  2  Ld.  Raym.  909, 


342  CRIME  Al^D  TORT 

possibly  a  hint  that  the  fact  that  the  goods  had  been  stolen 
might  be  a  good  defence  to  the  bailee ;  ^  and  the  law  was  so 
stated  in  1355.^  In  1339  counsel  said  in  argument  that  the 
fact  that  the  goods  bailed  were  burned  together  with  the  house  in 
which  they  were  stored  would  be  a  good  defence  to  the  bailor's 
action.^  In  1432  Cotesmore,  J.,  ruled  that,  "  If  I  grant  goods  to  a 
man  to  keep  to  my  use,  if  the  goods  by  his  default  are  stolen  he 
is  accountable  to  me  for  the  goods  ;  but  if  he  is  robbed  of  the 
goods  he  is  excusable  by  law."  ^  Perhaps  in  these  cases  the 
judges  were  trying  to  apply  to  the  liability  of  the  bailee  the  view 
that  a  man,  though  liable  for  his  own  acts  which  wrongfully 
cause  damage  to  another,  is  not  liable  for  the  acts  of  others  or 
acts  beyond  his  control.^  But  these  attempts  thus  to  modify 
the  liability  of  the  bailee  never  materialised.  Though,  as  we 
shall  see,  the  recognition  of  the  bailor's  dominium  led  to  the  de- 
velopment of  his  rights  against  third  persons  who  had  taken  the 
goods,^  no  substantial  diminution  was  made  in  the  extent  of  the 
bailee's  liability.  The  reason  for  this  is  to  be  found  in  the 
elaboration  of  the  new  theory  as  to  the  ground  of  that  liability 
which  had  emerged  in  the  time  of  Bracton. 

We  have  seen  that  Bracton  distinguished  the  "custodia"  of 
the  bailee  from  the  "  dominium  "  of  the  bailor,  and  put  forward 
the  accountability  of  the  bailee  to  the  bailor  as  an  explanation 
of  the  bailee's  right  of  action.''  We  have  seen  also  that  this 
same  explanation  was  given  by  Beaumanoir.^  That  it  found 
speedy  acceptance  is  clear  from  the  fact  that  it  was  hinted  at 
in  a  plea  in  the  court  of  the  Honour  of  Broughton  in  1258,^ 
It  involved  a  departure  from  the  older  conceptions  but  not  a 
very  serious  departure.  According  to  this  view  the  right  of  the 
bailee  to  sue  as  if  he  were  owner  is  taken  for  granted — the  old 
rules  of  law  which  gave  him  that  position  were  too  strongly 
rooted  to  be  overthrown.  But  these  old  rules  were  rationalized 
by  assigning  his  liability  over  to  the  bailor  as  the  reason  for  his 
right  to  sue.     Maitland's  dictum  that  between  the  rules  that  the 

ly.B.  8  Ed.  II.  275;  Fitz.,  Ab.  Detinue  pi.  59;  see  Holmes,  Common  Law 
176;  Beale,  Carrier's  Liability,  Essays,  A.A.L.H.  iii  157;  Bordwell,  H.L.R.  xxix 
736-737 ;  if  Fitzherbert's  account  of  the  matter  is  correct  and  issue  was  taken  on  the 
theft,  it  would  seem  that  theft  was  a  good  defence  to  an  action  of  detinue  against 
the  bailee;  the  Y.B.  says  that  the  plea  being  that  the  goods  were  delivered  in  a 
locked  chest,  and  the  replication  being  that  they  were  delivered  out  of  the  chest, 
issue  was  taken  on  that;  it  is  not  unlikely,  as  Mr.  Bordwell  says,  that  the  Y.B.  re- 
presents a  tentative  pleading  (below  635,  637),  and  that  we  have  in  Fitzherbert's 
account  the  issue  really  taken. 

2  29  Ass.  163  pi.  28;  Beale,  op.  cit.  Essays  A.A.L.H.  iii  152  n.  2. 

3  Y.B.  12,  13  Ed.  in.  (R.S.)  246.  4  Y.B.  10  Hy.  VI.  Mich.  pi.  69. 
^  Below  378,  380.  ^  Below  348-349. 

'  Above  340-341.  8  Above  341. 

^  Select  Pleas  in  Manorial  Courts  (S.S.)  65-66. 


PERSONAL  ACTIONS  343 

bailee  could  sue  third  parties  because  he  was  liable  to  his  bailor, 
and  that  he  was  liable  to  his  bailor  because  he  could  sue  third 
parties,  there  was  no  logical  priority,^  exactly  represents  the 
view  which  was  beginning  to  prevail  in  Bracton's  day.  In  a 
sense  too  it  represented  older  law ;  but,  while  in  the  older  law 
the  greater  stress  was  laid  on  the  bailee's  possession,  in  the 
newer  scheme  the  greater  stress  was  laid  on  his  liability  over. 
In  the  older  law  his  right  to  sue  third  parties  by  virtue  of  his 
possession  was  the  premise,  and  his  liability  was  the  conclusion. 
From  the  days  of  Bracton  onwards  the  situation  tends  to  be 
reversed.  His  liability  over  tends  to  become  the  premise  from 
which  his  right  to  sue  third  parties  is  deduced  as  the  conclusion. 
The  bailee's  liability  over  is  very  clearly  put  forward  as  the 
reason  for  his  right  to  sue  in  an  action  of  replevin  heard  in  the 
Eyre  of  Kent  of  1 3 1 3-1 3 14.^  It  is  the  generally  accepted  theory 
in  the  Year  Books  of  the  fourteenth,^  fifteenth,*  and  early  six- 
teenth ^  centuries  ;  and  it  appears  in  Croke's  report  of  Southcote 
V.  Bennet^  in  1601  as  one  of  the  reasons  for  the  decision  of  the 
court.  "  It  is  not  any  plea  in  a  detinue,"  say  Gawdy  and  Clench, 
J  J.,  **to  say  that  he  was  robbed  .  .  .  ;  for  he  hath  his  remedy 
over  by  trespass  or  appeal  to  have  them  again."  Having  been 
thus  adopted  into  the  modern  common  law,  this  view  of  the 
reason  for  the  bailee's  right  to  sue  has  been  repeated  by  many 
lawyers  of  the  seventeenth,  eighteenth,  and  nineteenth  cen- 
turies.'^  The  consequences  of  this  theory  were  also  accepted. 
It  followed  that  if  the  bailee  was  not  able  to  sue  he  was  not 
liable  to  his  bailor.  Thus  if  the  goods  were  damaged  by  the 
king's    enemies  ^   or  by  the   act  of  God,^    he  clearly  had    no 

^  "  Perhaps  we  come  nearest  to  historical  truth  if  we  say  that  between  the  two 
old  rules  there  was  no  logical  priority.  The  bailee  had  the  action  because  he  was 
liable  and  was  liable  because  he  had  the  action,"  P.  and  M.  ii  170. 

"^  **  Passeley. — By  your  writ  you  asserted  that  the  property  of  the  beasts  was  in 
yourself,  and  now,  by  your  counting,  you  say  that  the  beasts  are  not  yours,  but  one 
N.'s.  Judgment  whether  you  can  now  avow  property  in  another's  beasts.  Stonore.—^ 
The  beasts  are  in  our  custody,  so  that  we  should  be  liable  if  they  were  lost  and  they 
do  not  deny  that  they  took  them.  Judgment,  etc.  Ashby. — ^You  first  affirmed  that 
the  property  was  in  yourself,  and  now  you  affirm  that  it  is  in  someone  else.  .  .  .  He 
was  told  to  say  something  else." 

3  Last  note. 

4Y.BB.  II  Hy.  IV.  Mich.  pi.  46  (p.  24)  per  Hankford,  Hill  and  Culpeper; 
Holmes,  Common  Law  170  n.  2. 

5Y.B.  21  Hy.  VIL  Hil.  pi.  23. 

•'Cro.  Eliza.  815;  see  also  the  MS.  report  of  this  case  printed  in  H.L.R.  xiii 
43 ;  at  p.  44  the  fact  that  the  defendants  had  a  remedy  over  is  alleged  as  a  reason  for 
allowing  the  plaintiff  to  sue. 

7  Bk.  iv.  Pt.  IL  c.  2  §  2. 

^Y.B.  33  Hy.  VI.  Hil.  pi.  3;  for  a  full  account  of  this  case,  which  is  dis- 
cussed in  most  of  the  subsequent  cases  on  this  point,  see  Holmes,  Common  Law 
176-177. 

^Thus  in  Y.B.  33  Hy.  VI.  Hil.  pi.  3  it  seems  to  have  been  admitted  that  an 
accidental  fire  or  a  sudden  tempest  would  have  been  an  excuse — such  damage  was 


344  CRIME  AND  TORT 

remedy  over ;  and  therefore  it  was  held  that  he  was  not  liable  to 
the  bailor  for  damage  due  to  these  causes.  The  same  result 
followed  if  it  was  through  the  action  of  the  bailor  that  the  goods 
were  not  returned  or  damaged.^  Conversely,  if  by  reason  of  a 
special  contract  with  his  bailor  or  for  any  other  reason  he  was 
not  liable  over,  it  seems  to  have  been  the  opinion  of  Brian  and 
Littleton  that  he  could  not  sue  a  person  who  had  taken  the 
goods  from  his  possession.^ 

Thus  a  more  or  less  logical  theory  was  evolved  which 
accounted  both  for  the  bailee's  right  to  sue  as  if  he  were  owner, 
and  his  absolute  or  almost  absolute  responsibility  to  his  bailor. 
As  that  absolute  responsibility  was  thus  accounted  for,  the 
attempts  to  limit  it  which  we  see  in  the  earlier  law  cease  in  the 
fifteenth  century.  And  the  law  as  thus  settled  was  authoritatively 
laid  down  by  Coke  in  Southcotes  Case  in  1601.  ''  If  A  delivers 
goods  to  B  generally  to  be  kept  by  him,  and  B  accepts  them 
without  having  anything  for  it,  if  the  goods  are  stolen  from  him, 
yet  he  shall  be  charged  in  detinue :  for  to  be  kept  and  kept  safe 
are  all  one."  ^ 

The  question  now  arises,  what  is  the  historical  truth  as  to  the 
basis  of  the  bailee's  rights  to  sue  and  as  to  his  liability  over  ?  Is  it 
true  to  say  that  the  bailee  could  sue  as  if  he  were  owner  merely 
because  he  is  liable  over?     Or  is  it  true  to  say  that  he  is  liable 

not  the  act  of  the  defendant,  therefore  not  attributable  to  him ;  cp.  Holmes,  Common 
Law  200,  201-202 — as  Holmes  says,  this  principle  was  not  peculiar  to  bailees  ; 
it  is,  as  we  shall  see,  a  consequence  of  the  mediaeval  principle  of  liability  for  tort, 
below  380. 

ly.B.  II  Hy.  IV.  Mich.  pi.  46  (p.  'Z^)per  Hankford,  Hill  and  Culpeper ;  cp. 
H.L.R.  xxix  738. 

^Fitz.,  Ab.  Barre  pi.  130—"  Detinu.  Le  defendant  monstre  coment  le  bailment 
fuit  fait  a  gard  al  jeopardy  le  pleintif,  et  monstre  coment  un  tiel  aver  pris  les  biens  de 
luy.  Brian  bon  pie,  pur  ceo  que  le  bayle  ne  puit  aver  accion  pur  recoverer  damages 
quar  il  ne  recoverait  damages  mes  pour  le  charge  que  il  ad  ouster  al  baylour,  et  il 
n'est  charge  ouster  icy,  mes  auter  est  de  general  baylle;  "  this  is  Y.B.  3  Hy,  VII. 
Trin.  pi.  16;  in  the  Y.B.  Brian's  words  are  not  quite  so  definite  as  P'itzherbert  makes 
them ;  but  that  this  was  the  idea  held  by  both  Brian  and  Littleton  appears  clearly 
enough  in  Y.B.  9  Ed.  IV.  Mich.  pi.  9,  of  which  a  good  account  is  given  H.L.R.  xxix 
741-742;  it  was  a  question  of  "colour  "  (see  below  639) — would  a  bailment  to  the 
predecessor  of  a  prior  support  an  action  by  the  successor  ?  Brian  said  no — "  si  jeo 
bailie  certain  biens  a  un  home  pur  garder,  si  soient  emportes,  puis  il  avera  bref  de 
Trespass  pur  le  possession,  car  il  est  chargeable  ouster  a  moy.  Mes  si  biens  bailies 
a  un  Prior  soient  emportes,  le  successor  n'avera  action,  car  il  n'est  chargeable,  issint 
a  nul  mischief,"  and  Littleton  said  practically  the  same  thing. 

^4  Co.  Rep.  85b ;  it  should  be  noted  that  Dodderidge,  counsel  for  the  defendant, 
argued  that  it  was  only  when  a  bailee  took  goods  at  his  peril  that  he  was  bound  if 
they  were  stolen ;  on  the  other  hand,  Pynde,  counsel  for  the  plaintiff,  argued  that,  this 
being  a  bailment  to  keep  safely,  was  equivalent  to  taking  the  goods  at  the  peril  of 
the  bailee,  and  it  was  only  if  a  bailee  took  goods  to  keep  as  his  own  goods  that  he 
would  be  excused,  H.L.R.  xiii  43,  44 ;  clearly  Coke  adopted  and  even  went  further 
than  Pynde's  argument  when  he  ruled  that  "  to  be  kept  and  kept  safe  are  all  one  ;" 
that  Coke  was  right  in  treating  the  words  "kept  safe"  as  merely  the  common  form 
of  alleging  the  bailee's  duty  is  shown  by  Ross  v.  Hill  (1846)  2  C.B.  877  ;  cp.  Street, 
Foundations  of  Legal  Liability  ii  264  n.  5. 


PERSONAL  ACTIONS  345 

over  because,  being  in  possession,  he  has,  like  any  other  possessor, 
the  rights  of  an  owner  as  against  all  save  his  bailor?  In  other 
words,  is  the  basis  of  his  rights  to  sue  his  liability  over,  or  his 
possession  ?  This  problem  was  to  a  large  extent  academic  in  the 
Middle  Ages.  We  have  seen  that  practically  the  only  cases  in 
which  the  bailee  was  not  liable  over  were  cases  in  which  he  could 
sue  no  one.  If  the  goods  were  damaged  by  the  king's  enemies 
or  by  the  act  of  God  clearly  there  was  no  one  to  sue.^  It  was 
only  when  a  case  arose  in  which  a  third  person  damaged  the 
goods  in  the  bailee's  possession,  under  circumstances  which  did 
not  make  the  bailee  liable  to  the  bailor,  that  the  question  of  the 
basis  of  his  liability  could  arise  in  a  practical  form.  If  in  such  a 
case,  we  base  his  right  to  sue  on  his  liability  over,  he  clearly  has 
no  right  of  action  against  the  wrongdoer.  On  the  other  hand,  if 
we  base  his  rights  of  action  on  his  possession  he  has  a  right  of 
action.  The  possibility  of  such  a  case  arising  could  not  easily 
occur  till  after  the  decision  of  Holt,  C.J. ,  in  Coggs  v.  Bernard  \n 
1703  ;"  and  we  shall  see  that  it  was  not  for  nearly  two  hundred 
years  after  that  decision  that  the  problem  was  authoritatively 
settled  in  favour  of  the  view  that  the  bailee's  right  to  sue  is  based, 
not  on  his  liability  over,  but  on  his  possession.^ 

The  question,  however,  whether  this  was  an  historically 
correct  decision  is  essentially  a  problem  of  mediaeval  legal 
history ;  and  opinions  have  and  probably  will  continue  to  differ 
upon  it. 

In  favour  of  the  view  that  the  bailee's  right  to  sue  should  be 
based  on  his  liability  over  the  following  considerations  have  been 
and  can  be  urged :  we  have  very  little  evidence  that  the  rule 
that  the  bailor  was  confined  to  his  rights  against  the  bailee  was 
ever  the  law  of  England.  On  the  contrary,  early  in  the  thirteenth 
century,  the  bailor's  rights  of  property  are  distinctly  recognized, 
and  the  bailee's  rights  are  based  on  his  liability  over.  We  cannot 
pray  in  aid  those  old  conceptions  of  Germanic  law  because,  like 
many  other  primitive  ideas,  they  went  down  before  the  new 
common  law  which  was  being  created  in  the  thirteenth  century. 
Hence,  as  soon  as  we  get  definite  information  as  to  the  bailee's 
position,  we  find  that  the  bailor's  rights  of  property  are  recognized, 
and  that  the  bailee's  rights  are  based  on  his  liability  over.  This 
tradition  has  been  continuous  right  down  to  the  nineteenth  cen- 
tury ;  *  and  we  have  seen  that  Brian  and  Littleton  drew  the 
logical  consequence,  and  held  that  if  he  were  not  liable  over,  he 

^  Above  343-344.  '-*  2  Ld.  Raym.  gog. 

3  The  Winkfield  [igo2]  P.  42. 

*  These  considerations  are  ably  set  out  by  Bordvvell,  Property  in  Chattels  H.L.R, 
jcxix  501  seqq. ;  731  seqq. 


346  CRIME  AND  TORT 

could  not  sue  anyone  who  interfered  with  his  possession  of  the 
goods.  ^ 

But,  notwithstanding  these  reasons,  I  think  that  the  evidence 
goes  to  show  that  the  bailee's  right  to  sue  was  based  on  his 
possession.  It  is,  I  think,  reasonably  clear  from  Glanvil's  book 
that  English  law  did  start  from  the  old  conceptions  of  Germanic 
law  which  gave  the  bailee  as  possessor  the  rights  and  powers  of 
the  owner.  ^  It  is  no  doubt  true  that  these  old  conceptions  were 
modified  as  the  result  of  the  legal  renaissance  of  the  thirteenth 
century.  But  they  were  not  wholly  got  rid  of.  Here,  as  in  many 
other  cases,  they  were  transplanted  and  developed  in  a  modified 
form.  There  was  a  modification  of  legal  doctrine,  but  no  absolute 
breach  of  continuity.  No  doubt  the  Roman  conceptions  of 
ownership  and  possession  exercised  a  disturbing  influence  both 
in  the  law  as  to  hereditaments  and  as  to  chattels.  But  neither 
in  respect  to  hereditaments  nor  in  respect  to  chattels  did  they 
succeed  in  ousting  the  old  idea  that  seisin  or  possession  is  owner- 
ship as  against  all  the  world  save  as  against  the  man  with  the 
better  right.  Hence  it  followed  that  the  bailee,  being  a  possessor, 
had  the  rights  of  a  possessor  and  could  sue  by  virtue  of  those 
rights.  There  is  support  for  this  view  in  the  Year  Books.  In 
the  case  of  1409^  already  referred  to,  in  which  a  villein  brought 
trespass,  one  of  the  counsel  argued  that  the  fact  that  the  goods 
were  in  his  custody  at  the  time  of  the  taking  entitled  him  to  bring 
the  action.  This  argument  was  not  upheld  because,  I  think,  of 
the  personal  incapacity  of  the  plaintiff;  for  in  the  same  case 
Thirning,  C.J.,  ruled  that  as  against  a  stranger  the  bailee  had 
property.*  In  the  case  of  1469,  which  has  also  been  referred  to. 
Choke  and  Nedham  upheld,  as  against  Brian  and  Littleton,  the 
right  of  the  bailee  to  sue  by  virtue  of  his  possession  ;  ^  and  it  is 
noteworthy  that  in  Coke's  report  of  Southcotes  Case  '^  he  did  not, 
as  in  Hey  don  and  Smith's  Case;  base  the  bailee's  liability  to  his 

^  Above  344  n.  2.  2  Above  388-389. 

^Y.B.  II  Hy.  IV.  Mich.  pi.  2;  above  337  n.  3;  note  that  Rolle,  Ab.  Trespass 
M.  6  conjectures  that  this  ruling  was  due  to  the  fact  that  he  was  not  chargeable 
over ;  but  there  is  no  hint  of  this  in  the  report. 

4Y.B.  II  Hy.  IV.  Mich.  pi.  39. 

5  Y.B.  9  Ed.  IV.  Mich.  pi.  9 ;  above  344  n.  2 ;  H.L.R.  xxix  741-742 ;  in  that 
case  Choke  said,  •*  Cest  possession  est  sufficient,  pour  ce  qu'il  poit  per  cause  del 
possession  aver  meintenir  breve  de  Trespass  ou  appell  de  Robberie  s'ils  eussent 
estres  emportes ;  "  and  Nedham  said,  "  Et,  Sir,  quand  il  aver  possession  de  les  biens, 
par  celle  possession  il  purra  maintenir  action,  s'il  fuissent  pris  hors'de  son  possession, 
vers  chescun  forsque  vers  cestui  que  droit  aver;  "  but,  later,  though  he  granted  the 
bailee's  right  to  recover  on  the  possession,  he  at  once  added  the  reason  that  he  was 
chargeable  over ;  but  it  is  clear  from  the  whole  gist  of  his  argument  that  he  regarded 
the  possession  as  the  foundation  of  the  right  to  sue;  it  may  be  noted  that  in  Y.B.  21 
Hy.  VII.  Hil.  pi.  23  Fineux,  C.J.,  though  he  assigns  as  a  reason  for  the  bailee's  right 
to  sue  that  he  is  chargeable  over,  yet  lays  stress  on  the  principle  that  he  "  ad  properte 
encontre  chescun  estranger." 

•^  (1601)  4  Co.  Rep.  83b.  ''  (1611)  13  Co.  Rep.  at  p.  69. 


PERSONAL  ACTIONS  347 

bailor  upon  his  right  to  sue  a  third  person  who  had  taken  the 
goods.  On  the  contrary,  he  bases  his  liability  on  "  his  acceptance 
upon  such  delivery,"  ^  i.e.  upon  his  possession.  It  is  true,  as  we 
shall  see,  that  the  bailor's  ownership  was  recognized  when  he  was 
allowed  to  bring  trespass  against  persons  who  had  taken  the 
chattels  from  the  bailee.^  But  it  is  significant  that  these  exten- 
sions of  the  rights  of  the  bailor  were  not  accompanied  by  any 
relaxation  of  the  bailee's  liability.  No  doubt  we  can  explain  this 
fact  by  saying  there  was  no  need  to  relax  his  liability  because 
these  extensions  of  the  bailor's  rights  were  not  made  at  the 
expense  of  the  bailee's  rights — while  in  possession,  he  still  had 
all  the  rights  of  the  owner.  But  this  explanation  clearly  puts  the 
stress  on  the  possessory  aspect  of  the  bailee's  rights. 

In  fact,  the  view  that  the  bailee  can  sue  by  virtue  of  his 
possession  is  in  harmony  with  the  root  principles  of  the  common 
law  as  to  the  position  of  a  possessor — whether  finder,  wrongdoer, 
or  bailee ;  while  the  view  that  the  bailee  can  sue  only  by  virtue 
of  liability  over  can  only  be  harmonized  with  those  root  principles 
by  treating  a  bailee  differently  from  any  other  possessor.  It  is 
true  that  a  continuous  chain  of  authority  can  be  cited  for  the  view 
that  the  bailee's  rights  rest  upon  his  liability  over  ;  but  this  is 
largely  discounted  by  the  fact  that  these  statements  were  made  in 
cases  in  which  it  was  immaterial  which  view  of  his  position  was 
adopted.  They  are  to  a  large  extent  dicta,  and  cannot  therefore 
weigh  against  the  generally  accepted  principles  of  the  common 
law  as  to  the  legal  rights  of  a  possessor. 

Therefore  I  regard  the  view  which  bases  the  bailee's  rights  to 
sue  upon  his  liability  over  as  the  product  of  the  disturbing  influence 
exercised  by  Roman  law  in  the  thirteenth  century.  And  in 
support  of  this  view  it  is  possible  to  point  to  the  analogy  of  the 
land  law.  Just  as  ideas  drawn  from  the  Roman  conceptions  of 
dominium  and  possessio  gave  rise  to  the  unfortunate  distinction 
between  the  seisin  of  the  freeholder  and  the  possession  of  the 
termor,^  so  these  same  conceptions,  coupled  with  Roman  con- 
ceptions of  liability,  obscured  the  fact  that  the  rights  of  the  bailee 
depended  on  his  possession.  In  spite,  therefore,  of  the  reasons 
[which  have  been  alleged  to  the  contrary,  I  must  subscribe  to 
'Holmes'  argument  that  the  bailee's  position  depends,  not  on  his 
[liability  over,  but  on  his  possession.  We  shall  see  in  a  later 
'volume  ^  that,  with  the  help  of  Holmes'  argument,  this,  the  true 
listorical  view,  has  prevailed. 

But  we  must  return  to  the  Middle  Ages.  Though  the  new 
Ideas  of  the  thirteenth  century  did  not  in  any  way  diminish  the 

1 4  Co.  Rep.  at  f.  83b ;  cp.  also  Arnold  v.  Jefferson  (1697)  i  Ld.  Raym.  at  p.  276. 
2  Below  348.  »  Above  213.  -i  Bk.  iv  Pt.  II.  c.  2  §  2. 


348  CRIME  AND  TORT 

powers  of  the  bailee  as  possessor,  they  did  help  to  add  to  the 
rights  of  the  bailor  as  owner.  We  have  seen  that  Bracton  allowed 
him  to  bring  the  appeals  of  robbery  or  larceny  ;  ^  and  it  is  by  no 
means  unlikely,  as  Mr.  Bordwell  has  suggested,  that  the  rules  thus 
laid  down  with  respect  to  the  criminal  appeals  helped  to  induce 
the  judges  in  the  fourteenth  century  to  allow  him  rights  of  action 
against  other  persons  besides  his  bailee.^  It  is  certainly  sig- 
nificant that  the  action  which  was  the  first  to  be  extended  to  the 
bailor  was  that  semi-criminal  action  of  trespass  which  was  taking 
the  place  of  the  criminal  appeals ;  ^  and  that  this  extension  was  at 
once  accepted.^  Probably  this  extension  took  place  in  the  first 
half  of  the  fourteenth  century.  In  Edward  ll.'s  reign  the  older 
rule  that,  in  case  of  a  bailment,  only  the  bailee  could  sue  seems 
to  be  upheld.^  But  in  1344^  Huse,  arguendo,  said,  "A  writ  of 
trespass  and  a  writ  of  appeal  are  given  to  him  to  whom  the 
property  belongs,  and  also  to  one  out  of  whose  possession  the 
property  is  taken,  because  both  master  and  servant  will  have  an 
appeal  in  respect  of  the  same  felony;"  and  he  was  not  contradicted. 
In  1374  it  was  admitted  that  either  the  bailor  or  the  bailee  could 
bring  trespass  against  one  who  had  wrongfully  taken  possession 
of  the  goods. '^  It  is  true  that  in  later  law  it  was  laid  down  that 
the  bailor  could  not  bring  trespass  if  the  goods  had  been  bailed 
for  a  fixed  term  or  pledged.^  But  it  is  doubtful  if  the  law  was  so 
laid  down  in  this  period.  There  is  some  ground  for  thinking  that 
trespass  was  then  regarded  as  a  general  action  which  was  capable 
of  remedying  wrongs  to  personal  rights,  wrongs  to  the  possessory 
rights  of  bailees,  and  wrongs  to  the  proprietary  rights  of  bailors  ; 
and  that  it  was  not  till  the  following  period  that  it  came  to  be 
regarded  as  an  exclusively  possessory  remedy.^ 

More  difficulty  was  felt  in  allowing  a  bailor  to  bring  detinue 
against  persons  other  than  his  bailee  in  cases  where  there  had 
been  a  bailment.  The  actions  of  debt  and  detinue  were,  so  to 
speak,  twin  actions. ^^    They  are  placed  together  in  the  register  ;^^ 

1  Above  339,  and  n.  8.  2  h.L.R.  xxix  509  ;  above  340  n.  2. 

3  Vol.  ii  360,  364-365.  ■*  H.L.R.  xxix  573. 

^  Y.B.  16  Ed.  II.  f.  490 ;  above  324  n.  3. 

^  Y.B.  18,  19  Ed.  III.  (R.S.)  508.  It  may  be  noted  that  this  extension  was  made 
in  Germany  in  the  thirteenth  century,  Schulte,  Histoire  du  droit  de  PAllemagne  (Tr. 
Fournier)  471. 

■^  Y.B.  48  Ed.  III.  Mich.  pi.  8  (pp.  20,  21) ;  this,  of  course,  does  not  apply  if  the 
bailee  gives  the  goods  to  another,  as  in  that  case  there  is  no  trespass,  Y.BB.  2  Ed. 
IV.  Pasch.  pi.  9 ;  21  Hy.  VII.  Mich.  pi.  49. 

8  Bk.  iv  Pt.  II.  c.  2  §  2. 

9  H.L.R.  xxix  517-519,  citing  Litt.  §  71,  and  Y.B.  12  Ed.  IV.  Pasch.  pi.  ^o per 
Choke;  of  course  during  the  term  the  bailor  could  not  sue  the  bailee,  Y.B.  17  Ed.  IV. 
Pasch.  pi.  2  per  Brian,  C.J. 

10  P.  and  M.  ii  171,  172  ;  and  cp.  Y.BB.  20,  21  Ed.  I.  (R.S.)  138,  21,  22  Ed.  L 
(R.S.)  256,  with  Y.B.  33-35  Ed.  I.  (R.S.)  454 ;  vol.  ii  366. 

1^  f.  139  ;  for  the  writs  see  App.  Ib.  (i)  (2). 


PERSONAL  ACTIONS  349 

and  their  wording  is  almost  identical.  Debt  lay  where  the 
plaintiff  demanded  the  payment  of  money :  detinue  if  he  asserted 
his  right  to  a  specific  chattel.  It  would  not  be  true  to  say  that 
either  cause  of  action  rested  upon  a  contract.  It  is  true  that  in 
the  Year  Books  this  expression  is  sometimes  used  ;  ^  and  if  debt 
was  brought  upon  an  agreement  executed  on  one  side,  or 
detinue  was  brought  upon  a  bailment,  the  expression  was  not 
inappropriate.  As  a  matter  of  fact,  the  right  to  the  payment  or 
the  money  or  the  conveyance  of  the  chattel  really  rested  either 
upon  a  grant  of  the  defendant,  or  upon  some  provision  of  positive 
law  which  created  such  right.^  But,  though  the  contractual  aspect 
of  debt  and  detinue  was  gaining  prominence,  from  the  reign  of 
Edward  III.  onwards,  it  never  entirely  prevailed  over  the  older 
ideas.  We  have  seen  that  in  the  case  of  involuntary  loss  of 
possession  the  owner  was  allowed  to  bring  detinue  based  on  a 
devenerunt  ad  manus  or  a  trover.^  It  was  only  natural  therefore 
that  the  right  of  the  bailor  to  bring  detinue  against  other  persons 
besides  the  bailee  should  be  gradually  extended.  He  was  first 
allowed  to  sue  the  bailee's  executor ;  *  and  then  any  third  person 
who  had  got  possession  of  the  goods  and  detained  them.^  By 
the  reign  of  Edward  IV.  he  was  allowed  to  choose  whether  he 
would  sue  his  bailee,  or  whether  he  would  sue  any  third  person 
by  making  use  of  the  count  in  trover.*'  This  extension  of  the 
bailor's  rights,  which  gave  a  fuller  recognition  of  his  ownership,  is 
as  Ames  has  pointed  out,  closely  analogous  to  the  contemporary 
process  by  which  the  chancellor  extended  the  rights  of  the  cestui 
que  use,  and  gave  him  a  remedy  not  only  against  the  feoffee  to 
uses  but  also  against  many  other  persons  in  possession  of  the 
legal  estate.  In  both  cases  the  result  was  to  convert  a  right  which 
was  originally  a  right  in  personam  into  a  right  which  was 
substantially  a  right  in  rem? 

1  Y.BB.  20,  21  Ed.  I.  (R.S.)  202 ;  17,  18  Ed.  III.  (R.S.)  622  pi.  42 ;  37  Hy.  VI. 
Mich.  pi.  18  (debt) ;  18  Hy.  VI.  Pasch.  pi.  7  (p.  9)  (detinue). 

2 See  Y.B.  3  Ed.  II.  (S.S.)  191  for  a  good  statement  of  this  conception;  vol. 
ii  367*  368  ;  below  356. 

^  Above  326-327. 

4  Y.B.  16  Ed.  II.  f.  490;  cp.  Y.B.  9  Hy.  VI.  Hil.  pi.  4.  In  Y.B.  11  Hy.  IV.  Hil. 
pi.  20  Hankford  said,  •'  Avant  ces  heures  il  ad  estre  en  disputacion  si  home  avera 
accion  de  detinue  vers  executor  sur  un  bailler  d'un  fait  bailie  al  testator  sans 
especialty  ou  nemy." 

''Y.B.  II  Hy.  IV.  Hil.  pi.  20  Thirning  ssiys,  •'  Si  jeo  bailie  un  chartre  touchant 
I'enheritance  d'un  estranger  a  un  home,  et  il  bailie  ouster,  j'averay  assey  bon  action 
vers  le  possessor  sans  especialty.     Hankford. — Jeo  grant  bien." 

•5  Y.B.  12  Ed.  IV.  Mich.  pi.  2  above  325  n.  i;  Brian  notes  that  the  bailee  is 
always  liable;  but  that  a  sub-bailee  or  finder  is  only  liable  while  in  possession — 
much  the  same  principle  as  is  now  applied  to  the  original  lessee  and  the  assignee 
in  respect  of  covenants  running  with  the  land. 

'  Ames,  Essays  A.A.L.H.  iii  435  ;  for  the  detailed  history  of  this  change  in  the 
case  of  the  cestui  que  use  see  Bk.  iv  Pt.  I.  c.  2. 


350  CRIME  AND  TORT 

Thus  in  the  case  of  voluntary  parting  with  possession,  just 
as  in  the  case  of  involuntary  loss  of  possession,  the  rights  of 
the  owner  came  to  be  recognized.  They  obtained  more  com- 
plete recognition  through  a  new  action,  the  origins  of  which  we 
can  discern  at  the  close  of  this  period. 

(3)   The  origins  of  the  action  of  Trover  and  Conversion. 

At  the  end  of  this  period  the  rights  of  owners  out  of  posses- 
sion were  beginning  to  be  further  protected  by  an  action  of 
trespass  on  the  case.  This  action  on  the  case  developed  into 
the  modern  action  of  trover  and  conversion  which,  in  course  of 
time,  almost  superseded  the  action  of  detinue,  and  made  con- 
siderable encroachments  on  the  sphere  of  trespass.^  In  fact,  the 
career  of  this  action  in  the  law  of  tort  is  very  similar  to  the 
career  of  assumpsit  in  the  law  of  contract^  It  is  true  that 
trover  did  not  supersede  these  older  personal  actions  which  re- 
dressed wrongs  to  the  ownership  and  possession  of  chattels  so 
completely  as  assumpsit  superseded  the  older  personal  actions 
of  debt  and  covenant ;  but  the  history  of  both  trover  and  as- 
sumpsit is  similar  in  that  they  both,  to  a  large  extent,  took  their 
place,  and  both  helped  thereby  to  simplify  and  generalize  the 
law. 

The  need  for  this  new  action  originated  in  the  defects  of  the 
action  of  detinue.  That  action  lay  if  the  defendant  refused  to 
deliver  at  the  plaintiffs  request.  As  we  have  seen,  it  was  not 
the  bailment  but  the  detention  that  was  the  gist  of  the  action.^ 
It  lay  also  if  the  defendant  had  by  his  misconduct  disabled  him- 
self from  redelivery,  as  for  instance  if  wine  had  been  bailed,  and 
the  bailee  had  drunk  it  up.^  But  this  action  did  not  afford  a 
remedy  if  the  bailee  misused  the  chattels,^  or  if  he  restored  them 
in  a  damaged  condition.^  To  get  damages  in  these  cases  it  was 
necessary  to  bring  an  action  of  trespass  on  the  case.  It  was 
equally  necessary  to  sue  by  this  form  of  action  if  it  was  desired 
to  get  damages  against  a  third  person  who  had  destroyed  the 
goods. ^  This  being  so,  it  was  but  a  short  step  to  take  to  allow 
the  owner  to  sue  at  once  the  bailee  who  had  damaged  the  goods 

1  Bk.  iv  Pt.  II.  c.  2  §  I ;  it  also  superseded  replevin,  above  285-287. 

2  For  assumpsit  see  below  429-453  ;  Ames,  H.L.R.  xi  386. 
2  Above  327  n.  2. 

-♦Y.B.  20  Hy.  VI.  f.  16  pi.  2;  Statham,  Ab.  Detinue  pi.  9;  Fitzherbert,  Ab. 
Office  del  Court  pi.  22  (20  Ed.  III.) ;  Y.B.  17  Ed.  III.  f.  45  pi.  i ;  all  these  cases  are 
cited  by  Ames,  Essays  A.A.L.H.  iii  433  n.  7. 

^Glanvil  x  13,  above  338  n.  i;  Y.B.  2  Ed.  IV.  Pasch.  pi.  9  Littleton  says, 
'*  Jeo  pose  que  jeo  bailie  a  vous  mon  toge  et  vous  le  ardez,  jeo  avera  trespass  sur  le 
cas  vers  vous." 

«  Y.B.  18  Ed.  IV.  Hil.  pi.  5  {Brian  dissenting) ;  cp.  Y.B.  12  Ed.  IV.  Mich.  pi.  9. 

7  Y.B.  12  Ed.  IV.  Mich.pl.  9. 


I 


MEDIAEVAL  THEORY  OF  POSSESSION    351 

by  a  form  of  trespass  on  the  case ;  ^  and  it  was  settled  by  the 
middle  of  the  sixteenth  century  that  this  action  on  the  case  lay 
both  against  a  bailee  and  against  a  person  to  whose  hands  the 
goods  had  come  by  finding  or  otherwise,^ 

But,  even  then,  the  sphere  of  this  new  action  on  the  case 
based  on  a  trover  and  a  conversion  differed  from  the  sphere  of  the 
action  of  detinue.  The  gist  of  the  action  of  detinue  was  the  de- 
tention after  a  request  to  deliver  or  to  redeliver  :  the  gist  of  the 
action  of  trover  was  the  conversion.  It  was  only  as  the  result 
of  later  developments  that  the  spheres  of  the  two  actions  were 
brought  into  closer  approximation  to  one  another.  These  de- 
velopments were  the  work  of  the  lawyers  of  the  latter  half  of  the 
sixteenth  and  of  subsequent  centuries ;  and  with  them  I  shall 
deal  in  a  subsequent  Book  of  this  History.^  But  it  is  clear  that 
the  developments  which  had  already  taken  place  at  the  close  of 
the  mediaeval  period  had  resulted  in  a  considerable  improvement 
in  the  position  of  the  dispossessed  owner  of  chattels.  Such  an 
owner,  whether  he  had  parted  voluntarily  or  involuntarily  with 
his  chattels,  had  a  choice  of  remedies.  If  he  had  parted  volun- 
tarily with  the  chattels  he  might  sue  his  bailee  either  in  detinue 
sur  bailment,  or,  if  the  bailee  had  damaged  the  goods,  by  tres- 
pass on  the  case.  If,  having  parted  with  them  involuntarily, 
they  had  got  into  the  hands  of  third  persons,  or  if,  having  parted 
with  them  voluntarily,  a  third  person  detained  them  from  the 
bailee,  he  could  sue  such  third  person  in  detinue  sur  trover,  or 
on  a  devenerunt  ad  manus  ;  or  he  might  be  able  to  sue  by  an 
action  of  trespass  on  the  case,  alleging  a  trover  and  a  conversion.* 

Let  us  now  turn  to  the  effect  of  those  developments  in  the 
law  of  actions  upon  the  mediaeval  theory  of  the  possession  and 
ownership  of  chattels. 

The  Mediceval  Theory  of  the  Possession  and  Ownership  of 

Chattels 

The  main  principles  and  the  historical  development  of  the 
law  relating  to  possession  are  the  same  in  the  case  both  of  land 
and  chattels ;  but  the  law  relating  to  the  possession  of  chattels 
has  come  to  differ  both  in  form  and  in  detail  from  the  law  re- 
lating to  the  seisin  of  land.  The  differences  arise  from  two  con- 
nected causes,     (i)  Land  differs  from    chattels  both  in  respect 

1  Y.B.  2  Hy.  VII.  Hil.  pi.  9;  but  this  form  of  action  was  not  allowed  against  a 
bailee  who  merely  declined  to  restore  till  1675,  H.L.R.  xi  385. 

2  Brooke,  Ab.  Action  sur  Case  pi.  103  {26  Hy.  VIII.);  pi.  113  (4  Ed.  VI.): 
Core's  Case  (1537)  Dyer  at  p.  22  per  Fitzjames,  C.J. 

3Bk.  iv  Pt.  II.  c.  2§  I. 

^Y.B.  27  Hy.  VIII.  Mich.  pi.  3;  conversion  is  alleged  in  Y.BB.  18  Ed.  IV. 
Hil.  pi.  5,  and  20  Hy.  VII.  Mich.  pi.  13. 


352  CRIME  AND  TORT 

of  its  legal  importance  and  in  respect  of  its  physical  character- 
istics. The  importance  of  land-holding  in  a  society  still,  to 
some  extent,  organized  upon  feudal  principles  is  obvious.  It  is 
obvious  also  that  any  system  of  land  tenure  necessitates  the  ex- 
istence of  two  separate  sets  of  interests  in  the  land — the  interest 
of  the  lord  and  the  interest  of  the  tenant ;  that  the  physical 
characteristics  of  land  make  it  possible  that  it  shall  be  enjoyed 
in  succession ;  and  that  the  large  powers  given  to  the  landowner 
of  carving  estates  out  of  his  land,  or  of  charging  it  in  various 
ways,  gives  rise  to  many  other  simultaneous  interests  in  the 
same  piece  of  land.  No  such  simultaneous  interests  were  al- 
lowed to  coexist  in  the  case  of  a  chattel.  A  chattel  is  not  the 
subject  of  tenure,  nor  can  it  be  carved  out  into  estates.^  (2) 
Consequently,  the  remedies  given  by  law  for  the  protection  of 
land  differ  entirely  from  the  remedies  given  by  law  for  the  pro- 
tection of  chattels.  We  have  seen  that  the  various  interests  which 
might  coexist  in  land  were  protected  each  by  its  appropriate  real 
action,  and  that  the  rights  of  the  person  dispossessed  of  a 
chattel  were  protected  only  by  personal  actions.  Though,  as 
we  shall  now  see,  the  evolution  of  these  personal  actions  has 
produced  a  law  as  to  possession  fundamentally  similar  to  the 
law  as  to  seisin,^  the  form  in  which  these  bodies  of  law  have 
come  to  be  expressed  is  so  different  that  this  fundamental 
similarity  may  easily  be  overlooked. 

That  the  common  law  has,  throughout  its  history,  applied  to 
the  possession  of  chattels  the  same  general  principles  as  it  applied 
to  the  seisin  of  freehold  interests  in  land,  will  be  clear  if  we  look 
at  the  following  facts  and  rules  of  law:  (i)  the  words  "seisin" 
and  "possession"  were  used  convertibly  till  quite  the  end  of  this 
period ;  ^  and  the  lawyers  frequently  illustrate  the  principles  of  the 
law  as  to  possession  from  the  law  as  to  seisin.^  (2)  We  have  seen 
that  the  rule  that  two  persons  cannot  possess  the  same  thing  at 
the  same  time  was  as  applicable  to  chattels  as  it  was  to  land.^ 
(3)  The  person  in  possession  is  the  person  who  has  all  the  rights 
of  an  owner,  "the  convertor  of  a  chattel,  like  the  disseisor  of  land 
had  the  power  of  present  enjoyment  and  the  power  of  alienatioh. 
If  dispossessed  by  a  stranger  he  might  proceed  against  him  by 
trespass,  replevin,  detinue,  or  trover.  He  could  sell  the  chattel 
or  bail  it.  It  w  ould  go  by  will  to  the  executor,  or  be  cast  by 
descent  upoa  the  administrator.     It  was  forfeited  to  the  crown 

iSee  H.L.R.  iii  39;  for  the  history  of  the  very  limited  extent  to  which  future 
interests  in  chattels  could  be  created  at  common  law  see  Bk.  iv  Pt.  II.  c.  2  §  2. 

2  Above  89-95.  3  Vol.  ii  581. 

4 See  e.g.  Y.BB.  2  Ed.  IV.  Mich.  pi.  8 ;  6  Hy.  VII.  Mich.  pi.  4  (p.  9)  per  Brian, 
and  (p.  8)  per  Vavisor. 

^  Above  96. 


MEDIAEVAL  THEORY  OF  POSSESSION    353 

for  felony;  and  was  subject  to  execution."^  Thus  a  delivery  of 
chattels  by  a  trespasser  had  a  tortious  effect  very  similar  to  the 
effect  of  a  feoffment  by  a  disseisor.^  (4)  On  the  other  hand,  the 
person  out  of  possession  had  merely  a  right  to  recover  the  chattel ; 
and  that  right  was  a  chose  in  action  which  was  inalienable.^  He 
might  retake  it ;  but,  as  we  have  seen,  his  rights  of  recaption  were 
very  limited.^  It  is  true  that  quite  at  the  end  of  this  period  some 
of  the  judges  were  of  opinion  that  he  might  release  his  rights  to 
the  trespasser ;  but  this  was  denied  by  others ;  ^  and  even  this 
very  limited  exception  was  not  established  till  the  following 
period.  If  he  owed  money  (unless  the  creditor  was  the  king)  no 
execution  could  be  levied  from  chattels  which  were  out  of  his 
possession.®  If  a  villein  or  a  wife  were  dispossessed  of  their 
chattels  neither  the  lord  nor  the  husband  could  assign  their  rights 
to  the  villein's  or  the  wife's  chattels,  unless  and  until  they  had 
reduced  them  to  possession  in  the  lifetime  of  the  villein  or  wife.'' 
We  shall  see  that,  though  it  was  settled  in  Edward  I.'s  reign  that 
the  executor  or  administrator  of  a  deceased  person  could  bring 
debt  or  detinue  for  the  property  of  the  deceased,^  it  was  only  by 
virtue  of  express  legislation  that  he  got  the  right  to  bring  trespass 
for  chattels  carried  off  in  the  deceased's  lifetime.^  The  chief 
instance  in  which  the  position  of  a  dispossessed  owner  of  a  chattel 
differed  from  that  of  a  disseised  owner  of  land  was  in  respect  of 
the  rights  of  the  crown  to  the  chattels  of  a  dispossessed  owner, 
who  had  died  intestate  and  without  next  of  kin,  or  who  had  been 
convicted  of  felony  or  outlawed.  We  have  seen  that  in  the  case 
of  land  there  was  no  escheat  in  such  cases ;  ^*^  but  in  the  case  of 
chattels  the  crown  took  them,  in  the  first  case  as  bona  vaccantia, 
and  in  the  other  two  cases  as  forfeited.  They  were  choses  in 
action,  it  is  true  ;  but  the  rule  that  choses  in  action  are  not  assign- 
able does  not  apply  to  the  crown.^^     (5)  A  delivery  of  possession 

1  Ames,  Essays  A.  A.L.H.  iii  560 ;  and  cp.  Y.B.  17, 18  Ed.  III.  (R.S.)  628,  the  reply 
of  W.  Thorpe  to  a  plea  of  justification  in  an  action  of  trespass  for  carrying  off  lead. 

2  Ames,  Essays  A.  A.L.H.  iii  550,  551 ;  Pollock  and  Wright,  Possession  i6g,  170 ; 
as  is  pointed  out  by  Fineux  and  Tremayle,  C.J  J.,  this  rule  does  not  apply  where  a 
stranger  takes  goods  from  a  bailee  or  from  a  person  wrongfully  in  possession,  Y.B.  21 
Hy.  VII.  Mich.  pi.  49  cited  below  358  n.  6,  as  in  that  case  the  owner  could  sue  the 
stranger  by  action  of  detinue  or  trover,  above  326-327,  350-351. 

3  Y.B.  6  Hy.  VII.  Mich,  pi,  4,  "  Le  lessee  poit  surrenderor  per  parol,  mes  si  le 
lessor  luy  disseisit,  et  or  il  voile  surrenderor  son  droit  per  parole  c'est  void,  et  issint 
jeo  entend  touts  fois  qu'on  ne  poit  surrenderor  son  droit,  ou  doner  ou  releaser  per 
parol  soit  eel  chose  personel  ou  real,  car  tout  est  un  a  tiel  entent  comme  semble." 

^  Above  279-280. 

5Y.BB.  2  Ed.  IV.  Mich.  pi.  8  per  Danby,  C.J.,  and  Nedham,  J.,  dissentiente 
Littleton  arg. ;  6  Hy.  VII.  Mich.  pi.  4  (pp.  8,  9)  per  Vavisor,  J.,  dissentiente  Brian 
C.J.  ;  cp.  Ames,  Essays  A.A.L.H.  iii  555. 

"Y.B.  22  Ed.  IV.  Pasch.  pi.  29.  "^  Ames,  Essays  A.A.L.H.  iii  558-559. 

8  Below  584.  9  Ibid.  10  Above  92. 

"Ames,  Essays  A.A.L.H.  iii  558 ;  for  the  history  of  choses  in  action  see  Bk.  iv 
Pt.  II.  c.  2  §  3. 

VOL.   HI.— 23 


354  CRIME  AND  TORT 

was  in  the  thirteenth  century  in  all  cases  as  necessary  for  the  valid 
transfer  of  a  chattel  as  a  livery  of  seisin  was  for  the  valid  transfer 
of  a  freehold  interest  in  land.^  But  of  this  last  rule,  and  of  two 
important  exceptions  to  it  which  emerged  during  this  period,  it  is 
necessary  to  speak  a  little  more  in  detail. 

The  rule  that  a  delivery  of  possession  is  necessary  for  the 
valid  transfer  of  a  chattel  is  the  law  of  England  to-day.  It  was 
laid  down  in  1890  in  the  case  of  Cochrane  v.  Moore'^  that  "  accord- 
ing to  the  old  law  no  gift  or  grant  of  a  chattel  was  effectual  to 
pass  it,  whether  by  parol  or  deed,  and  whether  with  or  without 
consideration,  unless  accompanied  by  delivery."  Thus  was 
settled  in  strict  accordance  with  historical  truth  a  longstanding 
doubt  whether  or  not  the  property  in  chattels  could  pass  by  parol 
gift  without  delivery.  But  it  was  not  till  the  following  period 
that  this  doubt  emerged,  and  therefore  I  shall  deal  with  the  history 
of  this  episode  in  the  following  Book  of  this  History.^  It  is  true 
that  it  was  recognized  in  Edward  IV.'s  reign,  if  not  earlier,  that 
no  delivery  was  needed  if  the  goods  were  already  in  the  possession 
of  the  transferrer*  To  use  Roman  terms,  a  traditio  brevi  manu 
was  an  effectual  traditio.  But  this  is  no  real  exception.  The 
case  of  Cochrane  v.  Moore  did,  however,  recognize  that  there  were 
two  real  exceptions  to  the  general  rule:  "On  that  law  two 
exceptions  have  been  grafted,  one  in  the  case  of  deeds,  and  the 
other  in  that  of  contracts  of  sale  where  the  intention  of  the  parties 
is  that  the  property  shall  pass  before  delivery."  ^  Of  the  history 
of  these  two  exceptions  I  must  speak  at  this  point  because  they 
emerged  during  this  period. 

According  to  the  law  of  the  thirteenth  century  no  property 
passed  upon  a  bargain  and  sale  until  delivery  had  been  made  or 

^Glanvil  x  14 ;  P.  and  M.  ii  179,  208,  citing  Bracton  f.  62  and  Fleta  p.  127; 
references  cited  in  Cochrane  v.  Moore  (1890)  25  Q.B.D.  at  pp.  66-67;  vol.  ii  277; 
H.L.R.  vi  393  and  n.  5 ;  Madox,  Form.  Angl.  no.  167 — a  deed,  dated  15  Ed.  II., 
which  after  reciting  a  sale  of  "  blada  prata  et  pasturae,"  and  the  gift  of  earnest,  goes 
on  to  provide  that  the  vendee  shall  not  remove  the  goods  till  the  whole  price  is  paid. 
This  looks  as  if  the  vendee  would  have  been  entitled  to  carry  off  the  goods  on  such 
a  bargain  and  sale;  but  it  implies  that,  till  carried  off,  they  remained  the  property 
of  the  vendor  ;  a  fortiori  no  property  could  pass  on  a  mere  agreement  to  sell  specific 
goods. 

2  25  Q.B.D.  at  pp.  72-73.  3  Bk.  iv  Pt.  II.  c.  2  §  2. 

*"  En  detinue  des  chateaux  il  est  bon  plee  a  dire  que  le  pleintif  puis  le  bailment 
ad  done  eux  al  defendant,  et  uncore  il  poit  avoir  son  ley,  quod  fuit  concessum"  Y.B. 
21  Ed.  IV.  Mich.  pi.  "ZT  per  Brian,  C.J. ;  cp.  Cochrane  v.  Moore  (1890)  25  Q.B.D.  at 
pp.  69,  70;  Stoneham  v.  Stoneham  [1919]  i  Ch.  at  pp.  154-155 />^y  P.O.  Laurence,  J. 

5 25  Q.B.D.  at  p.  73  ;  Lord  Esher,  M.R.,  ibid  at  pp.  74,  75,  laid  it  down  that  this 
exception  applied  to  a  contract  both  of  sale  and  exchange;  and  generally  the  same 
principles  apply  to  both  contracts,  though,  as  Chalmers  points  out,  "  the  question 
has  been  by  no  means  fully  worked  out,"  Sale  of  Goods  Act  (2nd  ed.)  4 ;  however, 
the  history  of  the  origin  of  this  exception,  below  355-357,  would  seem  to  indicate 
that  Lord  Esher  was  right  in  thinking  that  a  contract  either  of  exchange  or  of  sale 
would  pass  the  property. 


MEDIEVAL  THEORY  OF  POSSESSION    355 

taken.  ^  The  vendor  could,  on  delivery,  sue  for  the  price  by 
action  of  debt.  The  purchaser  on  payment  could  not  sue  for  the 
goods  by  action  of  detinue.  His  remedy  was  to  sue  by  writ  of 
debt  in  the  detinet.  He  could  not  sue  by  writ  of  detinue  because 
he  could  not  allege  that  the  things  were  his.^  Probably  if  the 
contract  were  merely  executory  neither  could  sue  the  other.^ 
The  same  rule  was  applied  as  was  applied  in  later  law  to  contracts 
other  than  the  contract  of  sale.*  In  Henry  VI. 's  reign,  however, 
it  was  said  that  upon  an  agreement  to  sell  a  specific  chattel  the 
vendor  could  sue  in  debt  and  the  purchaser  in  detinue.^  The 
right  to  get  the  chattel  gave  a  right  to  sue  in  detinue ;  and  this 
applied  both  to  the  case  of  the  purchaser  in  an  agreement  to  sell, 
and  to  a  third  person  to  whom  goods  were  to  be  handed  by  a 
bailee  of  the  owner.^  It  is  clear  that  this  is  a  departure  from  the 
old  law  and  an  extension  of  the  actions  of  debt  and  detinue.  It 
seems  to  me  that  in  these  extensions  we  can  see  the  origin  of  the 
doctrine  that  a  contract  of  sale  of  specific  goods  passes  the 
property  in  the  goods. 

We  have  seen  that  the  action  of  detinue  had  come  to  be 
generally  used  by  owners  out  of  possession  to  assert  their  right  to 
possession.^  No  doubt  its  proper  sphere  was  the  recovery  of  a 
possession  which  had  formerly  belonged  to  the  plaintiff.  But  if 
it  could  be  generally  used  to  assert  a  right  to  possession,  why 
limit  it  to  the  case  where  the  person  having  such  right  had 
formerly  been  in  possession  ?  It  was,  however,  inevitable  that 
this  extension  of  the  scope  of  the  action  of  detinue  should  react 
on  the  action  of  debt.  At  this  period  the  theory  had  been 
developed  that  the  receipt  of  any  substantial  benefit — quid  pro 
quo — would  support  an  action  of  debt  against  the  recipient  by  the 
person  who  conferred  that  benefit.  As  a  general  rule  it  is  only 
performance  by  the  plaintiff  which  will  amount  to  a  sufficient  quid 

1  Above  354  n.  I. 

2  Y.B.  50  Ed.  III.  Trin.  pi.  8,  debt  for  four  quarters  of  corn  due  as  rent — "  bref 
de  detinue  ne  puis  jeo  aver  en  le  cas,  pur  ceo  que  jeo  n'ava  unques  propertie  en 
mesmes  les  biens  devant,  et  puis  le  bref  fuit  agard  bon ;  "  cp.  Y.BB.  3,  4  Ed.  II.  (S.S.) 
26;  7  Hy.  IV.  Pasch.  pi.  10. 

3Y.B.  21  Ed.  III.  Hil.  pi.  2. 

4  Y.BB.  37  Hy.  VI.  Mich.  pi.  18  (p.  g)  per  Moile ;  12  Ed.  IV.  Pasch.  pi.  22  {per 
Brian). 

5  Y.B.  20  Hy.  VI.  Trin.  pi.  4,  Fortescue  {arguendo)  says,  "  Sir,  jeo  veux  prouver 
que  si  jeo  achete  un  cheval  de  vous,  maintenant  le  propertie  del  cheval  est  a  moy,  et 
pur  ceo  vous  aurez  breve  de  Debte  pour  les  deniers,  et  j'aurai  Detinue  pour  le  cheval 
sur  cest  bargain  ;  "  cp.  Y.BB.  37  Hy.  VI.  Mich.  pi.  18  ;  17  Ed.  IV.  Pasch.  pi.  2 ;  49 
Hy.  VI.  Mich.  pi.  23. 

^  "  Mes  quant  a  ce  que  Laicon  ad  dit  que  si  jeo  bailie  certeins  biens  ou  chattels 
a  bailler  a  un  J.  que  le  property  est  or  en  J.  et  nemy  en  moy,  et  que  J.  aura  action 
de  ce,  et  nemy  moy ;  ce  n'est  pas  issint:  car  il  est  chargeable  a  nous  ambideux;  car 
s'il  ne  livre  les  biens  a  J.  jeo  puisse  avoir  action  et  J.  puit  avoir  action,  mes  I'un  action 
sera  fin  de  tout,"  Y.B.  39  Hy.  VI.  Hil.  pl.  7,  per  Prisot,  C.J. 

'  Above  351. 


356  CRIME  AND  TORT 

pro  quo  ;  but  it  is  clear  that  a  right  to  sue  in  detinue  is  almost  as 
substantial  a  benefit  as  performance ;  and  therefore  a  contract  to 
sell  which  conferred  such  a  right  would  be  a  quid  pro  quo  for  the 
right  to  sue  in  debt.^  It  is  equally  clear  that  this  reasoning  will 
not  apply  to  contracts  in  general,  but  only  to  a  contract  of  sale. 
If  I  agreed  with  a  carpenter  to  build  me  a  house  for  ;^20,  no  right 
of  action  accrued  to  me  during  this  period  by  the  mere  fact  of  the 
agreement.^  There  was  therefore  no  quid  pro  quo  for  my  promise 
to  pay  till  the  house  was  built.  Inasmuch  as  there  was  no  right 
of  action  recognized  by  the  common  law  for  unliquidated  damages 
for  breach  of  an  executory  agreement,  the  making  of  such  a 
contract  could  be  no  quid  pro  quo  for  an  action  of  debt.  As  there 
was  a  right  of  action  for  failure  to  deliver  a  specific  chattel,  based 
on  the  right  to  possession  thereby  given,  the  making  of  such  a 
contract  was  a  sufficient  quid  pro  quo  for  an  action  of  debt. 

This  being  the  case,  it  is  not  difficult  to  see  how  the  idea 
arose  that  the  property  passes  upon  an  agreement  to  sell  a  specific 
chattel.  If  A  agrees  to  sell  B  his  horse  for  ;^io,  A  can  bring 
debt  for  the  money,  because  he  has  a  right  to  it  by  virtue  of  B's 
grant.  B  can  bring  detinue  for  the  horse  because  he  has  a  right 
to  the  possession  by  virtue  of  A's  grant.  As  we  have  seen,  this 
right  to  possession  is  very  often  called  * '  property  "  in  the  Year 
Books.^  When  improved  remedies  made  this  right  to  possession 
more  easily  enforceable  it  took  upon  itself  more  of  the  character- 
istics of  ownership.  It  was  natural  to  think  of  the  rights  of  any 
one  who  had  a  right  to  possess  enforceable  by  the  action  of  detinue 
as  property.  If,  therefore,  a  contract  of  sale  were  made  which 
gave  the  purchaser  the  right  to  bring  detinue  for  the  thing  sold, 
it  was  easy  to  say  that  he  had  the  property  as  the  result  of  the 
sale.^     It  is  clear  that  this  reasoning  will  not  apply  to  sales  of 

^  H.L.R.  xi  259,  •'  The  right  of  the  buyer  to  maintain  detinue  and  the  correspond- 
ing right  of  the  seller  to  sue  in  debt  were  not  conceived  of  by  the  mediaeval  lawyers 
as  resulting  from  mutual  promises,  but  as  resulting  from  reciprocal  grants — each 
party's  grant  of  a  right  being  the  quid  pro  quo  for  the  corresponding  duty  of  the 
other;  "  Y.B.  49  Hy.  VI.  Mich.  pi.  23  per  Choke;  and  cp.  Plowden,  Comm.  at  p.  11, 
where  it  is  said  that,  "  An  action  of  deljt  for  the  duty  ...  is  taken  to  be  of  the  same 
effect  as  a  satisfaction  indeed  and  shall  countervail  a  satisfaction  ;  "  see  below  4.21- 
423  for  quid  pro  quo. 

2 Y.B.  37  Hy.  VI.  Mich.  pi.  18  Prisot,  C.J.,  says,  "On  poet  avoir  action  de 
Debte  sur  retention  ove  un  home  estre  de  son  conseil,  et  que  j'aurai  x\s.  per  an ; 
uncore  j'aurai  bon  accion  sur  cest  contract ;  mes  en  cest  cas  covient  a  moy  declarer 
en  mon  count  que  jeo  suis  ove  luy,  ou  autrement  voile  luy  consailler,  s'il  le  voile 
avoir  demande."  We  may  note,  too,  that  to  succeed  in  debt  the  price  must  have 
been  fixed,  Y.B.  12  Ed.  IV.  Pasch.  pi.  22  (p.  g)  per  Brian,  C.J. ;  below  423. 

^  Above  331. 

*  Cp.  Blackstone's  words  (Comm.  ii  448),  "  As  soon  as  the  bargain  is  struck  the 
property  of  the  goods  is  transferred  to  the  vendee,  and  that  of  the  price  to  the 
vendor;"  as  Sir  F.  Pollock  says,  L.Q.R.  ix  283,  284,  this  is  only  intelligible  if  we 
interpret  property  to  mean  the  right  to  get  possession  which  can  be  enforced  by  the 
appropriate  action ;  it  should  be  noted  however  that  no  property  would  pass  by  the 


MEDIAEVAL  THEORY  OF  POSSESSION    357 

chattels  which  are  not  specific,  as  detinue  would  not  lie  in  such  a 
case.^  Therefore  although  an  "  executed  contract  of  sale  "  will  pass 
the  property  in  the  goods,  an  "  executory  contract  of  sale"  will  not. 
It  is  clear  too  that  this  reasoning  does  not  apply  to  the  case  of  a 
sale  of  land.  Till  livery  of  seisin  has  been  made  no  real  right  to 
the  land  passes.^  The  intenser  ownership  of  land  protected  by 
the  real  actions  made  the  line  between  the  personal  right  against 
a  vendor  to  get  seisin  of  the  land,  and  the  actual  obtaining  of 
seisin,  far  more  clear  than  it  could  be  in  the  case  of  a  chattel  In 
the  case  of  a  chattel  a  contract  of  sale  gave  a  right  to  possession 
which  was  asserted  by  the  same  form  of  action  as  the  right  of  an 
owner  out  of  possession  to  get  possession  was  asserted.  In  the 
case  of  land  the  personal  action  which  lay  against  a  vendor,  and 
the  real  actions  which  lay  against  a  disseisor,  were  wholly 
different. 

It  is  probable  that  the  second  exception — the  gift  by  deed — 
was  introduced  in  the  course  of  the  fifteenth  century.  In  1468 
the  reporter  notes,  as  if  it  were  new  law,  the  fact  that  Choke  and 
the  other  judges  had  held  that  such  a  gift  could  be  made  by  deed 
without  delivery,  and  that  it  could  only  be  avoided  if  the  donee 
disclaimed  it  in  a  court  of  record.^  It  is  possible  that  causes 
similar  to  those  which  gave  rise  to  the  first  exception  gave  rise 
also  to  this.  It  is  well  known  that  if  A  promises  B  by  deed  a 
sum  of  money  B  can  sue  by  the  action  of  debt*  There  seems  to 
be  no  reason  why  B  should  not  sue  A  by  action  of  detinue  if  A 
promised  him  by  deed  a  specific  chattel.^     If  this  is  the  case,  the 

agreement  if  payment  and  delivery  were  to  be  simultaneous,  Y.B.  17  Ed.  IV.  Pasch. 
pi.  2  (p.  2)  per  Littleton,  and  even  if  the  property  passed,  no  delivery  need  be  made 
till  payment,  ibid,  per  Brian,  C.J. 

1  *'  A  man  bought  twenty  quarters  of  barley  to  be  delivered  at  a  certain  place  on 
a  certain  day ;  the  vendor  did  not  perform  his  contract,  by  which  the  vendee  was 
driven  to  buy  barley  for  his  business,  being  a  brewer,  at  a  much  greater  price ;  the 
vendee  upon  this  matter  was  permitted  to  bring  an  action  upon  the  case,  and 
adjudged  maintainable :  and  so  he  might  well  have  had  an  action  of  debt  for  barley, 
but  not  detinue,  for  the  property  of  the  barley  could  not  be  known,  for  one  quarter 
cannot  be  known  from  another  quarter,"  Core's  Case  (1537)  Dyer  at  f.  22b. 

2  In  Y.BB.  20  Hy.  VI.  Trin.  pi.  4;  22  Hy.  VI.  Hil.  pi.  29;  37  Hy.  VI.  Mich. 
pi.  18,  Prisot  and  Newton,  CJJ.,  held  that  though  no  right  to  tlie  possession  of  the 
land  passed,  yet  debt  lay  for  the  price ;  as  Ames  says.  Lectures  on  Legal  History 
140  n.  3,  this  was  "an  idiosyncrasy  of  these  three  judges.  .  .  .  There  was  no  quid 
pro  quo  to  create  a  debt ;  "  and  so  the  law  is  laid  down,  Y.B.  12  Hy.  IV.  Hil.  pi  13  ; 
as  we  shall  see  (below  438)  the  view  taken  by  these  judges  can  be  explained  by  the 
history  of  the  development  of  the  action  of  assumpsit. 

2  Y.B.  7  Ed.  IV.  Mich.  pi.  21 ;  cp.  L.Q.R.  VI.  448. 

^  Bl.  Comm.  ii  442,  "  Where  A  contracts  with  B  to  pay  him  ;£'ioo  and  thereby 
transfers  property  in  such  sum  to  B,  etc. ;  "  cp.  L.Q.R.  ix  283. 

«In  Y.B.  22  Hy.  VI.  Hil.  pi.  33  (p.  46),  it  is  said  that  if  A  bails  goods  by  deed 
to  B,  to  be  rebailed  to  him.  A,  detinue  lies;  in  Y.B.  39  Hy.  VI.  Mich.  pi.  46,  Prisot, 
C.J.  says,  "  Si  jeo  bailie  biens  per  fait  indente  et  puis  porte  bref  de  detinue  pour 
ceux  jeo  ne  count  sur  le  fait  indente  pur  ce  que  n'est  que  chose  testmoinant  le 
baillement  ,  .  .  ad  quod  omnes  justitiarii  concesserunt ;  ^^  I  have  found  no  distinct 


358  CRIME  AND  TORT 

same  reasoning  which  applies  to  the  case  of  sale  will  apply  to  a 
deed  promising  to  give.  Dockerays  Case  (1536)  would  seem  to 
show  that  this  reasoning  was  so  applied.  It  was  said  in  argument 
in  that  case,  and  not  contradicted,  that  a  "  covenant  relating  to 
a  personal  thing  can  alter  the  possession  of  that  thing.  As  if  I 
covenant  with  you  that  if  you  pay  me  ;^20  you  shall  have  all  my 
cattle  within  the  manor  of  Dale,  if  you  pay  the  ;^20  on  such  a 
day,  then  you  can  take  all  my  cattle  within  the  said  manor,  and 
on  payment  there  is  a  perfect  contract.  .  .  .  And  the  law  is  the 
same  if  I  bargain  with  you  for  money."  ^  But,  as  a  matter  of  fact, 
as  this  case  recognizes,  a  deed  has  a  double  aspect.  It  may  operate 
either  as  a  contract  or  a  conveyance  ;  and  this  double  aspect  has 
always  been  one  of  its  characteristics.^  In  the  Middle  Ages  it  is 
something  between  a  conveyance  and  a  contract.  It  is  the  grant 
of  a  liability  to  pay  or  do  conclusively  evidenced  by  the  sealed 
writing — ^just  as  the  receipt  of  money  or  chattels  from  another  was 
evidence  of  a  grant  by  the  recipient  that  he  was  liable  to  pay  a 
certain  sum  which  could  be  recovered  by  action  of  debt.^  At  the 
end  of  the  period  both  the  contractual  and  the  conveying  powers 
of  the  deed  became  more  clearly  distinct.  The  deed  became  the 
only  mode  of  making  an  executory  contract.^  On  the  other  hand, 
it  was  being  recognized  that  a  deed  could  both  convey  a  chattel 
and  create  or  transfer  an  incorporeal  hereditament.^  No  doubt 
the  rule  that  a  promise  under  seal  to  convey  goods  passed  the 
property  was  helped  by  this  double  aspect,  which  from  the  first 
had  been  characteristic  of  the  writing  under  seal. 

The  recognition  of  these  two  exceptional  cases,  in  which 
property  could  be  conveyed  without  delivery,  no  doubt  helped 
to  develop  the  idea  that  ownership  is  a  right  which  can  be  dis- 
tinguished from  the  fact  of  physical  control.^     But  there  is  no 

authority  for  the  proposition  in  the  text,  but  it  seems  logically  to  follow  from  the  law 
laid  down  in  the  case  of  sale,  and  from  the  law  laid  down  in  the  case  of  a  bailment 
to  rebail  to  a  third  person,  Y.B.  39  Hy.  VI.  Hil.  pi.  '^  per  Prisot,  above  355  n.  6. 

1  Y.B.  27  Hy.  VIII.  Trin.  pi.  6  (p.  16)  per  Deinshil,  arg. ;  Brooke,  Ab.  Propertie 
pi.  2, 

2  P.  and  M.  ii  215,  216.  3  y.B.  39  Hy.  VI.  Mich.  pi.  46. 
^  Below  420.                                                        "  Vol.  ii  580  ;  above  98-99. 

^  Perhaps  this  is  illustrated  by  a  dictum  of  Fineux  and  Tremayle,  C.JJ.,  who 
said,  Y.B.  21  Hy.  VII.  Mich.  pi.  49,  "Si  jeo  bailie  les  biens  a  un  home,  et  il  eux 
don  a  un  estranger  ou  vend  :  si  I'estranger  eux  prend  sans  livere,  il  est  trespassor, 
et  jeo  aurai  bref  de  trespass  vers  luy :  car  per  le  don  ou  vend  le  properte  ne  fuit 
change  mes  (per)  le  prisel :  mes  s'il  fait  delivered'eux  al  vendee  ou  donee,  donque  jeo 
n'aurai  bref  de  trespass;  "  these  two  judges  could  hardly  have  been  ignorant  of  the 
fact  that  a  sale  passes  the  property,  nor  could  they  have  intended  to  hold  that  if  I 
(the  owner)  by  word  give  goods  to  X,  I  can  sue  X  if  he  takes  in  pursuance  of  my 
gift,  provided  that  the  gift  stands  unrevoked ;  clearly  they  intended  to  hold  that  a 
mere  sale  by  a  non-owner  cannot  pass  the  property,  though  a  delivery  by  a  non- 
owner  passes  the  possession.  Thus  the  dictum  shows  that,  in  one  case  at  least,  this 
rule  did  emphasize  the  distinction  between  ownership  and  possession. 


MEDIAEVAL  THEORY  OF  POSSESSION    359 

doubt  that  the  strongest  influence  making  for  this  recognition 
must  be  looked  for,  not  in  these  two  exceptional  rules,  but  in 
those  modifications  of  the  personal  actions  which  gave  increased 
powers  to  dispossessed  owners.^  And  here  again  we  can  see  a 
similarity  between  the  law  as  to  chattels  and  the  land  law ;  for 
just  as  the  right  of  a  disseised  owner  to  get  seisin  was  developed 
by  modifications  in  the  real  actions,^  so  the  position  of  the  dis- 
possessed owner  was  improved  by  gradual  modifications  in  some 
of  the  personal  actions.  Thus,  as  I  said  at  the  outset,  the 
historical  development  of  the  law  relating  to  the  possession  of 
chattels  is  parallel  to  the  historical  development  of  the  law  re- 
lating to  the  seisin  of  land.  Possession  is  prima  facie  evidence 
of  ownership.  The  possessor  has,  as  against  third  persons,  all 
the  rights  of  an  owner ;  but  the  right  of  the  true  owner  to  pos- 
session is  better  protected.  The  man  with  the  better  right  to 
possession  has  "  the  property."  This  better  right  to  possession  is 
the  only  form  of  "  property  "  either  of  lands  or  chattels  recog- 
nized by  the  common  law. 

Everywhere  we  can  trace  the  leading  doctrines  and  the  funda- 
mental distinctions  of  the  common  law  to  differences  between 
the  classes  of  actions  and  to  epochs  in  the  history  of  some  one 
class  of  actions.  The  differences  between  the  classes  of  actions 
mark  out  the  main  divisions  of  the  law.  The  epochs  in  the 
history  of  each  class  leave  their  traces  in  substantive  rules  which 
may  be  justified  but  hardly  explained  upon  strictly  analytical 
principles.  They  can  usually  be  justified  because,  owing  to  the 
manner  in  which  the  forms  of  action  were  moulded  under  the 
pressure  of  the  constantly  shifting  demands  of  human  society, 
there  either  is  or  has  been  some  obvious  need  behind  them 
which  they  have  been  formed  to  satisfy.  They  cannot  be  ex- 
plained unless  we  watch  the  mode  in  which  these  ever-shifting 
social,  business,  and  political  demands  of  successive  generations 
instruct  the  lawyers  to  make  and  improve,  and  again  to 
improve  and  remake,  the  technical  machinery  which  will  satisfy 
them.  The  history  of  this  process  shows  us  how  the  lawyers 
of  past  ages  have  made  laws  fit  to  rule  a  changing  society,  and 
how  those  laws  have  sometimes  reacted  upon  the  society,  the 
needs  of  which  have  been  the  primary  cause  of  the  shape  which 
the  lawyers  have  given  to  them.  In  the  following  period  we 
shall  see  that  the  same  processes  centering  round  the  actions 
of  trover  and  ejectment,  instead  of  round  these  mediaeval  per- 
sonal and  real  actions,  have  built  up  our  modern  law  of  owner- 
ship and  possession. 

^  Above  327,  348-351.  2  Above  92-93. 


360  CRIME  AND  TORT 

I  have  dealt  with  the  history  of  the  possession  and  owner- 
ship of  chattels  in  the  common  law  in  a  chapter  upon  crime  and 
tort,  because,  as  we  have  seen,  it  is  through  the  working  of 
delictual  and  quasi-criminal  remedies  that  the  common  law 
attained  a  theory  about  these  matters.  We  must  now  turn 
again  to  the  law  of  crime  and  tort,  and,  with  the  help  of  the 
light  which  we  have  derived  from  the  common  law  theory  of 
possession,  examine  those  wrongs  to  property  which  the  law 
recognized  at  this  period. 

§  7,  Wrongs  to  Property 

In  this  section  I  shall  deal,  firstly,  with  the  four  felonies  of 
larceny,  robbery,  burglary,  and  arson,  and,  secondly,  I  shall  say 
a  few  words  about  the  other  wrongs  to  property  which  were 
remedied  for  the  most  part  by  the  action  of  trespass  and  its 
offshoots. 

Larceny. 

Larceny,  though  the  most  important  and  the  most  common 
of  the  wrongs  to  property,  was  the  last  to  be  included  in  the 
list  of  felonies.^  We  have  seen  that  the  older  proceedings  for 
larceny  partook  quite  as  much  of  the  nature  of  a  proceeding  to 
recover  the  goods  as  of  a  proceeding  to  punish  a  criminal.^ 
The  proceedings  by  which  a  wrong  is  punished  have  much  to  do 
with  determining  its  legal  nature ;  and  it  may  well  have  been 
thought  unjust  to  class  the  person  convicted  upon  an  accusation 
of  larceny  (who  might  well  be  an  honest  man)  with  the  person 
convicted  of  such  heinous  offences  as  murder,  rape,  robbery,  or 
arson. ^  However  that  may  be,  the  offence  of  larceny  was  in- 
cluded by  Henry  H.  among  the  pleas  of  the  crown  to  be  pro- 
secuted by  indictment;*  and  from  that  time  it  has  taken  its 
place  among  the  felonies. 

Bracton  defined  larceny  in  terms  drawn  from  Roman  law, 
but  so  modified  as  to  suit  English  law.  It  is  "the  fraudulent 
dealing  with  another  man's  property  with  the  intent  of  stealing 
it  against  the  will  of  its  owner."  ^     The  judges  of  the  fourteenth 

^  P.  and  M.  ii  493.  2  Above  320. 

'Maitland  (P.  and  M.  ii  493)  says  that  Bracton  treats  theft  differently  from  the 
other  felonies — "he  seems  hardly  to  know  that  appeal  of  larceny  which  became 
fashionable  at  a  later  period,  nor  do  we  find  appeals  of  larceny  as  distinguished  from 
robbery  on  the  earliest  plea  rolls." 

*  Assize  of  Clarendon  (1166). 

^  f.  150b,  "  Furtum  est  secundum  leges  contrectatio  rei  alienae  fraudulenta  cum 
animo  furandi,  invito  illo  domino  cujus  res  ilia  fuerit ;  "  cp.  Just.  Dig.  47.  2.  i.  3, 
•'  Furtum  est  contrectatio  rei  fraudulosa  lucri  faciendi  gratia  vel  ipsius  rei  vel  etiam 
usus  ejus  possessionisve." 


WRONGS  TO  PROPERTY  361 

and  fifteenth  centuries,  starting  with  this  definition,  interpreted 
it  in  such  a  way  that  it  fitted  in  both  with  the  theory  of  posses- 
sion which  I  have  just  described,^  and  with  the  English  division 
into  land  and  other  property  which  could  be  recovered  in  a  real 
action,  and  property  which  was  not  land  and  could  not  be  re- 
covered in  a  real  action.^  To  a  certain  extent  also  they  were  in- 
fluenced by  older  rules  which  drew  distinctions  based  upon  the  idea 
that  the  thing  stolen  must  be  property  of  some  value,  and  upon  the 
idea  that  the  gravity  of  the  crime  depended  on  the  value  of  the  pro- 
perty stolen.  In  describing  larceny,  therefore,  we  must  consider 
(i)  the  elements  due  to  the  common  law  theory  of  possession ;  (2) 
the  question  of  the  value  of  the  thing  stolen  ;  and  (3)  the  things 
which  cannot  be  the  subject  of  larceny. 

(i)  Larceny  and  the  theory  of  possession. 

Fraudulent  dealing — "  contrectatio  " — is  a  vague  term  and 
covered  many  things  in  Roman  law.^  In  English  law  it  is 
narrowed  down  to  the  case  where  there  has  been  an  actual 
physical  change  of  possession  effected  by  the  act  of  the  thief 
without  the  consent  of  the  person  entitled  to  the  goods.^  This 
change  of  possession  has  from  the  earliest  times  been  essential 
to  larceny ;  ^  so  that  there  can  be  no  larceny  where  there  is  no 
trespass.  A  wife  cannot  steal  her  husband's  goods,  for  a  taking 
by  her  works  no  change  in  the  possession ;  they  remain  in  the 
husband's  possession  as  before.^  In  addition  there  must  be  an 
asportation — a  carrying  away  ;  but  from  the  time  of  the  Year 
Books  a  very  slight  removal  sufficed.  Thus  when  a  man  stayed 
in  another's  house,  got  up  early,  took  the  sheets  from  the  bed- 
room to  the  hall  intending  to  steal  them,  went  to  the  stable  to 
get  his  horse,  and  was  caught  by  the  ostler,  he  was  held  to  be 
guilty  of  larceny.'^ 

Bracton,  as  we  have  seen,  laid  stress  on  the  animus  furandi ;  ^ 
but  we  have  seen  that  appeals  of  larceny  were  often  brought 
against  innocent  people.^  However,  when  larceny  became  a 
felony  to  be  prosecuted  by  indictment,  and  when  the  mental 
element  in  felony  came  to  be  regarded  as  its  distinguishing 
characteristic,  felonious  taking  was  distinguished  from  other 
unlawful    taking   by   reference  to   the  intention  of  the  taker.^^ 

1  Above  351-354.  2  Vol.  ii  261-262. 

^  Moyle,  Justinian  notes  to  Instit.  4.  i.  i. 

'*  Hale,  P.C.  i  504  seqq.  ;  Kenny,  Criminal  Law  182,  183  ;  as  to  larceny  by  a 
finder  see  the  Eyre  of  Kent  (S.S.)  i  81,  146. 

^Britton  i  115.  ^  Fitz.,  Ab.  Corone  pi.  455  ;  below  526-527. 

7  27  Ass.  pi.  39.  8V0I.  ii359. 

9  Above  320;  cp.  Y.B.  21,  22  Ed.  I.  (R.S.)  106. 

loy.B.  13  Ed.  IV.  Pasch.  pi.  ^  per  Hussey,  the  King's  Attorney,  "  Felony  is 
to  claim  feloniously  the  property  without  cause,  to  the  intent  to  defraud  him  in 


862  CRIME  AND  TORT 

Definite  rules  as  to  various  circumstances  under  which  this  in- 
tent may  be  held  to  exist  have  been  and  still  are  being  worked 
out  as  concrete  cases  arise  for  decision.  It  was  settled  during 
this  period  that  the  intent  must  be  to  deprive  the  person  out 
of  whose  possession  the  things  are  taken  of  the  benefit  of  that 
possession.  We  have  seen  that  possession  and  property  are  not 
accurately  distinguished  in  earlier  law.  The  possessor  \s  prima 
facie  the  owner,  and  is  treated  as  such  till  another  can  prove  a 
better  right  to  possession.^  Hence,  a  bailee,  from  whose  posses- 
sion goods  had  been  taken  feloniously,  could  prosecute  any  one, 
even  the  bailor,^  unless  probably  the  bailment  was  determinable 
at  the  bailor's  will.^  Seeing  that  the  essence  of  the  offence  is 
the  taking,  English  law  does  not  require  that  the  thief  should 
have  intended  to  profit  by  the  things  stolen.  Bracton  omits 
this  element  from  the  Roman  definition;  and  it  has  probably 
never  been  part  of  English  law.* 

It  follows  from  these  principles  that  the  scope  of  larceny 
in  English  Law  was  far  too  narrow  to  be  an  adequate  protection 
to  owners  of  chattels,  (i)  Seeing  that  a  trespassory  taking  was 
required,  the  offence  could  not  be  committed  by  any  one  who 
came  to  the  possession  of  the  goods  with  the  consent  of  the 
owner,^  or  with  the  consent  of  the  bailee  if  they  were  bailed.^ 
It  is  only  by  statute  that  appropriation  by  a  bailee  is  larceny.' 
(ii)  For  the  same  reason,  if  the  owner  really  consented  to  part 
with  his  entire  property  in  the  thing,  no  offence  was  committed, 
even  though  that  consent  had  been  obtained  by  fraud. ^  It  was 
only  if  the  fraud  was  carried  out  by  means  injurious  to  the  public 
generally  that  the  misdemeanour  of  cheating  was  committed.^ 
Hence  the  necessity  for  creating  the  offence  of  obtaining  goods 

whom  the  property  is,  animo  furandi."  The  Chancellor,  "  Felony  is  according  to 
the  intent."  Molincux,  **  A  matter  lawfully  done  may  be  called  felony  or  trespass 
according  to  the  intent."  The  translation  is  from  Pollock  and  Wright,  Possession 
134,  135- 

1  Above  352-353. 

2  Y.B.  7  Hy.  VI.  Trin.  pi.  18,  "  Et  fuit  dit  que  si  jeo  vous  bailie  certeins  biens  a 
gard  et  puis  jeo  eux  reprend  felonisement,  jeo  serai  pendu,  et  uncore  le  propertie  en 
moy.  Et  Norton  dixit  que  il  fuit  ley;"  cp.  Y.B.  13  Ed.  IV.  Pasch.  pi.  5  per 
Nedham,  J. 

3  Pollock  and  Wright,  Possession  165. 

4  Stephen,  H.C.L.  iii  132. 

5  Y.B.  13  Ed.  IV.  Pasch.  pi.  5;  cp.  Pollock  and  Wright,  Possession  131,  132. 

« Y.BB.  16  Hy.  VII.  Mich.  pi.  7;  21  Hy.  VII.  Mich.  pi.  49.  If  a  third  person 
takes  goods  from  a  bailee  the  bailor  can  sue  in  trespass,  and,  of  course,  larceny  has 
been  committed,  see  Pollock  and  Wright,  op.  cit.  169,  170. 

"^  21  Henry  VIII.  c.  7  (if  the  bailee  was  a  servant) ;  20,  21  Victoria  c.  54  §  17 
(bailees  generally). 

8  Pollock  and  Wright,  op.  cit.  218-220;  the  distinction  between  this  case  and 
the  cases  where  there  has  really  been  no  consent  to  pass  the  entire  property  (larceny 
by  a  trick)  is  later  than  this  period. 

9  Stephen,  H.C.L.  iii  161. 


WRONGS  TO  PROPERTY  368 

by  false  pretences.^  (iii)  The  person  in  possession  had,  as  we 
have  seen,  the  rights  of  an  owner;  hence  if  a  thief  passed  the 
goods  to  a  third  person,  that  third  person,  having  got  the  goods 
by  a  delivery,  even  though  he  knew  that  they  had  been  stolen, 
had  not  committed  larceny,^  but  only  a  misdemeanour.^  For 
this  reason  it  was  necessary  to  create  the  felony  of  receiving 
stolen  goods  knowing  them  to  have  been  stolen.*  Even  in  this 
period  the  inadequacy  of  larceny,  as  thus  deduced  from  the 
principles  of  the  law  of  possession,  must  have  been  apparent. 
But  the  lawyers  of  this  period  were  above  all  logical ;  and  it  was 
only  in  two  respects  that  they  mitigated  the  severity  of  their 
logic  in  order  to  give  a  more  ample  protection  to  property. 

(a)  It  was  during  this  period  that  the  modern  distinction 
between  the  bailee  who  has  possession  and  who  therefore  cannot 
commit  larceny,  and  the  servant  who  has  no  possession  and  who 
therefore  can  commit  larceny,  was  growing  up.  The  growth  of 
the  distinction  was  gradual.  During  the  thirteenth  and  earlier 
part  of  the  fourteenth  century  all  kinds  of  dependants  brought 
the  appeals  of  larceny  or  robbery  if  chattels  were  taken  from 
their  custody.  In  1 194  an  appeal  was  brought  by  the  '*  serviens  " 
of  a  lord  ;  ^  Bracton  states  in  one  passage  that  it  does  not  matter 
whether  the  stolen  thing  was  the  property  of  the  appellor  or  not, 
provided  that  it  was  taken  from  his  custody;^  and  in  1 344-1 345 
Huse  said,^  arguendo,  "A  writ  of  trespass  and  a  writ  of  appeal 
are  given  to  him  to  whom  property  belongs,  and  also  to  one 
out  of  whose  possession  the  goods  are  taken,  because  both 
servant  and  master  will  have  an  appeal  in  respect  of  the  same 
felony." 

It  is  clear  that  the  modern  distinction  was  unknown  to 
Bracton ;  and  it  is  hardly  possible  that  it  should  have  occurred 
to  him.  His  Roman  authorities  attributed  possession  neither  to 
bailees  nor  to  servants ;  and,  as  we  have  seen,  he  could  find  in 
the  rules  as  to  who  could  bring  the  actio  furti,  which  he  identi- 
fied with  the  appeal  of  larceny,  a  sufficient  explanation  of  their 

1  30  George  II.  c.  24  §  i ;  7,  8  George  IV.  c.  29  §  53. 

2Y.BB.  21  Ed.  IV.  Hil.  pi.  6;  16  Hy.  VII.  Mich.  pi.  7.  It  would  seem,  too, 
that  if  A  stole  X's  goods,  and  B  then  stole  them  from  A,  X,  though  he  might  appeal 
B  of  theft,  could  not  sue  him  for  trespass,  Y.B.  21  Ed.  IV.  Hil.  pi.  6;  Pollock  and 
Wright  155-157 ;  above  323  ;  though  it  was  otherwise  if  B  stole  from  X's  bailee, 
above  348,  358  n  6. 

3  Hale,  P.C.  i  620. 

*5  Anne  c.  31 ;  7,  8  George  IV.  c.  29  §  54 ;  cp.  Stephen,  H.C.L.  ii  238, 

''Rot.  Cur.  Reg.  53,  cited  H.L.R.  xxix  509  n.  68;  it  should  be  noted  that  the 
term  there  used  is  "  serviens  "  which  may  denote  a  servant  or  a  tenant  by  serjeanty 
— perhaps  at  this  date  this  would  have  been  a  distinction  without  a  difference, 
above  46. 

8  "  Et  non  refert  utrum  res,  quae  ita  subtracta  fuit,  extiterit  illius  appellantis  pro- 
pria vel  alterius,  dum  tamen  de  custodia  sua,"  f.  151a. 

7  Y.B.  18,  19  Ed.  III.  (R.S.)  508. 


364  CRIME  AND  TORT 

right  to  bring  their  appeals  against  a  thief.  Their  right  to  sue 
depended,  he  considered,  in  English  as  in  Roman  law,  upon  the 
fact  that  they  were  accountable  to  the  owner.^  We  have  seen 
that  he  emphasized  this  fact,  and  made  their  right  to  sue  depend 
upon  it.^  It  is  not,  I  think,  improbable  that  it  is  in  this  con- 
dition of  accountability,  upon  which  the  right  to  sue  is  founded, 
that  we  can  find  the  germ  of  the  distinction  between  the  servant 
and  the  bailee.  At  any  rate  it  indicates  the  line  upon  which 
the  separation  gradually  proceeded ;  for  it  roughly  differentiates 
the  mere  servant  from  those  whose  powers  and  discretion  are 
greater.^  The  principle  that  the  bailee  had  possession  was  too 
firmly  rooted  in  the  common  law  to  be  got  rid  of.  But  it  was 
obviously  inconvenient  to  attribute  possession  to  mere  servants 
who  would  be  very  unlikely  to  be  able  to  indemnify  the  owner 
if  they  abused  the  large  powers  which  possession  conferred. 
Besides  they  might  well  be  villeins ;  *  and  technical  difficulties 
stood  in  the  way  of  allowing  them  to  sue  as  if  they  were  owners/ 
And  so,  as  Stephen  says,  "  the  distinction  between  a  charge  and 
a  possession  readily  suggested  itself."*^  But  it  took  some  time 
to  harden  into  a  technical  rule.  It  was  hinted  at  in  1339  ;  ^  but, 
as  we  have  seen,  it  seems  to  be  ignored  in  1344-1345.^  It  was 
stated  clearly  enough  in  1474,  and  extended  to  the  case  of  a 
person  allowed  to  use  a  thing  by  the  mere  licence  of  the  owner, 
such  as  the  guest  at  a  tavern/  but  in  1488  Brian  and  the  other 
judges  seem  to  deny  it^^  It  was,  however,  finally  established, 
in  1506;"  and  the  law  as  thus  established  was  summed  up  and 
passed    on  into  modern   law   by   Coke.^^     In  modern  law  the 

1  Above  340-341.  2  Above  340  n.  7. 

3  See  belovi'  365  n.  6. 

<•  As  to  the  incapacity  of  villeins  see  below  491-500. 

'^  Above  337  n.  3.  '^  H.C.L.  iii  151. 

'  12  Ass.  pi.  32.  ^  Above  363. 

"^Y.BB.  49  Hy.  VI.  Mich.  pi.  9;  13  Ed.  IV.  Pasch.  pi.  5,  "If  a  taverner  serve 
a  man  with  a  piece,  and  he  take  it  away,  it  is  felony,  for  he  had  not  possession  of 
this  piece ;  for  it  was  put  on  the  table  but  to  serve  him  to  drink  :  and  so  it  is  of  my 
butler  or  ax)k  in  my  house ;  they  are  but  ministers  to  serve  me,  and  if  they  carry  it 
away  it  is  felony,  for  they  had  not  possession,  but  the  possession  was  all  the  while  in 
me ;  but  otherwise  peradventure  if  it  were  bailed  to  the  servants,  so  that  they  s^re  in 
possession  of  it." 

10  Y.B.  3  Hy.  VII.  Mich.  pi.  9. 

^^  Y.B.  21  Hy.  VII.  Hil.  pi.  21 ;  translated  by  Kenny,  Select  Cases  on  Criminal 
Law  216. 

^2 «'  Also  there  is  a  diversity  between  a  possession  and  a  charge,  for  when  I  deliver 
goods  to  a  man  he  hath  the  possession  of  the  goods,  and  may  have  an  action  of  tres- 
pass or  an  appeal,  if  they  be  taken  or  stolen  out  of  his  possession.  But  my  butler 
or  cook  that  in  my  house  hath  charge  of  my  vessel  or  plate  hath  no  possession  of 
them,  nor  shall  have  an  action  of  trespass  or  appeal,  as  the  bailee  shall ;  and  therefore 
if  they  steal  the  plate  or  vessel,  it  is  larceny.  And  so  it  is  of  a  shepherd.  ...  If  a 
taverner  set  a  piece  of  plate  before  a  man  to  drink  in,  and  he  carry  it  away,  etc.,  this 
is  larceny :  for  it  is  no  bailment  but  a  special  use  to  a  special  purpose,"  Third 
Instit.  108. 


WRONGS  TO  PROPERTY  365 

principle  is  applied  to  all  licencees.  None  of  them  have  pos- 
session ;  ^  and  therefore  all  of  them  can  commit  larceny  of  the 
goods  which  they  are  allowed  to  use. 

None  of  these  exceptional  cases  covered  very  much  ground. 
The  most  important  is  the  case  of  the  servant;  and,  at  first, 
this  exception  was,  as  we  might  expect  from  the  manner  in 
which  it  originated,  very  narrowly  construed.  It  was  said 
in  the  Year  Book  of  1506  that  it  only  applied  if  the  servant 
was  on  his  master's  premises,  or  while  he  was  accompanying 
him.^  This  was  recognized  to  be  law  by  the  framers  of  the 
statute  of  1529,  which  was  passed  to  extend  this  exception. 
That  statute  enacted  that  if  a  person  delivered  goods  above 
the  value  of  40s.  to  his  servant  to  keep  or  to  carry  for  him, 
and  the  servant  took  them  animo  furandi,  he  should  be  guilty 
of  felony.^  Hence  we  get  the  modern  rule  that  a  servant  can 
commit  larceny  of  his  master's  goods  entrusted  to  his  custody, 
not  only  if  he  is  on  his  master's  premises  or  accompanying 
him,  but  also  if  the  goods  have  been  delivered  to  him  by  his 
master  to  keep,  or  even  to-  use,  or  to  carry  to  a  third  person, 
in  the  course  of  his  employment  as  servant. '^ 

Even  as  thus  extended  the  exception  did  not  apply  if  the 
master  transferred  the  property  to  the  servant  for  a  special 
purpose,^  or  presumably  if  he  specifically  bailed  the  possession 
to  him;^  and  what  was  perhaps  more  important,  it  did  not 
apply  if  goods  were  given  by  a  third  person  to  a  servant  to 
give  to  his  master.^  This  latter  defect  was  not  remedied  till 
the  statutory  offence  of  embezzlement  was  created.^ 

1  Reeves  v.  Capper  (1838)  6  Bing.  N.C.  136. 

2  "  Tantost  que  il  est  in  ma  meason,  ou  ove  moy,  ce  que  j'ay  deliver  a  luy  est 
ajuge  in  ma  possession;  comme  mon  butler  que  ad  mon  plate  en  gard,  si  il  fuye 
ove  ce,  il  est  felony:  meme  le  Ley  si  cesty  que  gard  mon  cheval  va:  et  la  case 
est,  ils  sont  touts  fois  in  ma  possession :  mes  si  jeo  deliver  un  cheval  a  mon 
servant  de  chevaucher  a  la  marche,  et  il  fuye  ove  luy,  il  n'est  felony,  car  il  vient 
loialment  a  le  cheval  par  delivery.  Et  issint  est,  si  jeo  done  a  luy  une  bague  de 
carier  a  Londres;  ou  de  payer  a  ascun,  ou  de  emer  ascun  chose,  et  il  fuye  ove 
ce,  il  n'est  felony;  car  il  est  hors  de  ma  possession,  et  il  vient  loialment  a  ce," 
Y.B.  21  Hy.  VII.  Hil.  pi.  21 ;  cp.  Y.B.  49  Hy.  VI.  Mich.  pi.  roper  Billing. 

3  21  Henry  VII.  c.  7;  Coke,  Third  Instit.  105  ;  Hale,  P.C.  i  505. 
^  Pollock  and  Wright,  Possession  138. 

^  Ibid,  and  authorities  cited  in  n.  6. 

''See  Y.B.  13  Ed.  IV.  Pasch.  pi.  5  cited  above  364  n.  9;  Pollock  and  Wright, 
Possession  138-139  ;  it  would  seem  that  even  in  modern  law  the  extent  of  the  authority 
given  to  the  servant  may  make  his  "charge'.'  very  like  a  true  possession — "It 
may  be  that  it  will  sometimes  as  against  strangers  be  treated  as  a  possession  in 
cases  when  the  servant's  charge  is  to  be  executed  at  a  distance  from  the  master  and 
when  the  manner  of  the  execution  is  necessarily  left  to  the  discretion  of  the  servant," 
ibid  139-140 ;  so  that  there  was  good  sense  in  the  line  drawn  in  the  Y.BB., 
but  the  exigency  of  the  statute  21  Henry  VIII.  c.  7  has  caused  the  line  to  be 
drawn  at  a  somewhat  different  place. 

'Dyer  5a;  Coke,  Third  Instit.  105;  Stephen,  H.C.L.  iii  152,  153. 

*  39  George  III.  c.  85. 


366  CRIME  AND  TORT 

{b)  The  second  exception  to  strict  principle  is  to  be  found 
in  the  famous  case  of  the  carrier  who  broke  bulk.^  It  was 
decided  in  that  case  that  "  a  bailee  of  a  package  or  bulk  might, 
by  taking  things  out  of  the  package  or  breaking  the  bulk,  so 
far  alter  the  thing  in  point  of  law  that  it  becomes  no  longer 
the  same  thing — the  same  package  or  bulk — which  he  received, 
and  thereupon  his  possession  was  held  to  become  trespassory. 
If  a  carrier  fraudulently  sold  the  whole  tun  of  wine  unbroken 
he  committed  no  crime ;  if  he  drew  a  pint  it  was  felony  ;  per 
Choke,  J."  ^  That  this  was  a  departure  from  principle  is 
obvious.  As  Brian  put  it,  "  Where  he  has  the  possession 
from  the  party  by  a  bailing  and  delivery  lawfully  it  cannot 
after  be  called  felony  nor  trespass,  for  no  felony  can  be  but 
with  violence  and  vi  et  armis,  and  what  he  himself  has  he 
cannot  take  vi  et  armis  nor  against  the  peace  ;  therefore  it 
cannot  be  felony  nor  trespass,  for  he  may  not  have  any  other 
action  of  these  goods  but  action  of  detinue."  The  goods  in 
question  belonged  to  a  merchant  stranger;  and  the  judges, 
perhaps  to  please  the  king,  who  might  otherwise  have  been 
involved  in  diplomatic  difficulties,^  ''reported  to  the  chancellor 
in  council  that  the  opinion  of  most  of  them  was  that  it  was 
felony."  The  face  of  the  strict  doctrine  was  saved  by  adopting 
the  distinction  suggested  by  Choke  between  breaking  bulk  and 
taking  the  whole  of  the  goods  without  breaking  bulk. 

(2)  The  value  of  the  thing  stolen. 

Many  systems  of  law  distinguish  between  the  larceny  of 
large  things  and  the  larceny  of  small,  and  between  manifest 
and  non-manifest  theft*  "In  England  both  an  old  English 
and  an  old  Prankish  tradition  may  have  conspired  to  draw 
the  line  between  *  grand  '  and  '  petty  larceny '  at  twelve  pence."  ^ 
Grand  larceny,  as  we  have  seen,  became  a  felony,  and  therefore 
punishable  with  death.  Petty  larceny,  not  being  a  true  felony,^ 
was  only  punishable  by  whipping  or  the  pillory.     The  fact  that 

1  Y.B.  13  Ed.  IV.  Pasch.  pi.  5 ;  a  translation  of  this  case  will  be  found  in 
Pollock  and  Wright,  Possession  134-137. 

2  Ibid  133.  3  Stephen,  H.C.L.  iii  139,  140. 

*As  Maitland  has  shown  (P.  and  M.  ii  494  n.  i)  the  distinction  between  the 
thief  caught  in  the  act  and  the  thief  afterwards  discovered  was  known  to  English 
law  before  and  after  the  Conquest.  It  is  substantially  the  same  distinction  as 
that  marked  in  Roman  law  by  the  terms  manifestus  and  nee  manifestus. 

5  P.  and  M.  ii  494;  cp.  vol.  ii  48;  3  Edward  I.  c.  15  §  4,  those  indicted  for 
larceny  below  the  value  of  twelve  pence  are  bailable;  Y.B.  30,  31  Ed.  I.  (R.S.) 
537;  in  Y.B.  30,  31  Ed.  I.  (R.S.)  533  previous  larcenies  were  allowed  to  be 
proved  to  make  up  the  amount,  and  this  view  is  taken  in  the  Eyre  of  Kent  (S.S.) 
i  82  ;  but  these  decisions  were  not  followed,  Y.B.  11,  12  Ed.  III.  (R.S.)  532. 

^  As  Hale  points  out,  P.C.  i  530,  the  offence  had  some  of  the  marks  of  felony; 
the  indictment  xd^nfelonice,  and  on  conviction  the  offender  lost  his  goods. 


WRONGS  TO  PROPERTY  367 

grand  larceny  came  to  be  a  felony  and  therefore  punishable  with 
death  is  probably  the  reason  why  the  distinction  between  mani- 
fest and  non-manifest  theft  disappeared.  Both  were  punished 
in  the  same  way.  The  only  difference  was  the  mode  of  trial. 
The  manifest  thief  was,  as  we  have  seen,  put  to  death  in 
summary  fashion,^  the  non-manifest  thief  after  a  regular  trial 
before  the  royal  judges.  Grand  and  petty  larceny  therefore 
remained  as  the  only  division  between  larcenies  in  the  com- 
mon law  till  1827.2 

The  question  what  was  the  value  of  the  goods  stolen  was 
a  matter  of  fact  for  the  jury.  Already  in  Edward  III.'s  reign 
juries  were  beginning  to  use  their  power  to  save  petty  thieves 
from  the  gallows  by  depreciating  the  value  of  the  stolen 
property.  "One  was  arraigned  for  that  he  had  stolen  two 
sheep  value  twenty  pence,  and  the  jury  found  him  guilty  but 
they  said  that  the  sheep  were  only  worth  ten  pence ;  where- 
fore he  was  remanded  to  prison  as  a  punishment,  and  he  will 
be  liberated  at  the  next  session."^ 

This  distinction  between  grand  and  petty  larceny  may  show 
us  that  the  law  has  always  required  that  the  things  taken 
shall  have  some  value.  This  in  fact  is  a  necessary  requirement. 
**  Otherwise  it  would  be  a  crime  to  dip  your  pen  in  another 
man's  inkstand,  or  to  pick  up  a  stone  in  his  garden  to  throw 
at  a  bird."*  Thus  this  consideration  of  value  has  not  only 
caused  the  division  of  larceny  into  two  species,  it  has  also 
had  some  bearing  on  the  question  as  to  the  things  which  can 
and  the  things  which  cannot  be  the  subject  of  larceny. 

(3)  Things  not  the  subject  of  larceny. 

We  find  in  the  books  a  heterogeneous  list  of  things  which 
cannot  be  stolen  ;  ^  and  the  comprehensiveness  of  the  list  has 
necessitated  the  passing  of  many  statutes  in  order  to  fill  up 
the  many  lacunae  thus  appearing  in  the  criminal  law.  Three 
main  principles  have  been  at  work  in  the  formation  of  this 
list.  The  first  is  based  upon  the  idea  of  larceny  as  consisting 
of  taking  and  carrying  away.  The  second  is  based  upon  the 
idea  that  there  can  be  no  larceny  of  things  which  are  not 
property  because  of  no  value.  The  third  is  based  upon  the 
idea  that  the  stolen  thing  must  have  an  owner.  By  virtue 
of  the  first  principle,  land  and  things  annexed  to  land  were 
not  the  subject  of  larceny.     A  man  who  cut  and  took  away 

fi  Above  319-320 ;  below  608 ;  P.  and  M.  ii  495.  ^  7,  8  George  IV.  c.  29  §  2. 

^  Fitz.,  Ab.  Coroiie  pi.  451  (1368) ;  see  also  18  Ass.  pi.  14. 
*  Macaulay,  Indian  Penal  Code  n.  N,  cited  Kenny,  Criminal  Law  200. 
•^See   Pollock  and    Wright  230-236;     Stephen,    H.C.L.   iii    142-144;    Hale, 
P.C.  i  510-512. 


368  CRIME  AND  TORT 

trees  did  not  commit  larceny ;  though  it  would  be  other- 
wise if  he  had  carried  off  trees  already  cut.^  By  virtue  of 
the  second  principle  it  was  held  that  such  things  as  animals 
fercB  natures  could  not  be  stolen  if  they  were  useful  neither 
for  food  nor  domestic  purposes.^  By  virtue  of  the  third 
principle  animals  ferce  naturce,  unless  confined,  were  again 
excluded ;  ^  and  also  such  things  as  waif,  wreck,  or  treasure 
trove.*  But  these  principles  were  extended,  not  always  very 
logically,  owing  perhaps  to  a  feeling  against  capital  punish- 
ment. They  were  not  easy  to  keep  apart ;  and  it  was  possible 
to  exclude  the  same  thing  on  several  grounds.  Thus  title 
deeds  to  land  might  be  excluded,  either  because  they  were 
annexed  to  land,  or  because,  being  merely  evidences  of  a  right 
of  entry  or  action,  they  were  choses  in  action  of  no  value. 
That  they  were  excluded  was  settled  at  the  end  of  this  period  ;  ^ 
and  this  exclusion  was  the  foundation  for  the  exclusion  of  all  other 
choses  in  action^ — a  decision  which  involved,  as  Stephen  points 
out,  the  absurd  conclusion  that  a  banknote  cannot  be  stolen.'^ 

Robbery. 

Robbery  is  larceny  aggravated  by  violence.  It  has  been  a 
felony  certainly  since  the  reign  of  Henry  11.^  Hale^  defines  it 
as  "  the  felonious  and  violent  taking  away  of  any  money  or  goods 
from  the  person  of  another,  putting  him  in  fear."  Thus  where 
two  took  hold  of  a  man  and  made  him  swear  on  pain  of  death  to 
bring  them  ;^i,ooo,  it  was  adjudged  to  be  robbery.^^  That  the 
value  of  the  property  taken  was  immaterial  was  decided  as  early 
as  Edward  III.'s  reign. ^^ 

^  Y.B.  II,  12  Ed.  HI.  (R.S.)  640. 

2  Y.B.  12  Hy.  VIII.  Trin.  pi.  3,  Eliot  argued  that  things  that  are  only  useful 
for  pleasure  cannot  be  stolen,  "  Car  une  Dame  qui  ad  un  petit  chien  ne  veut  vendre 
ceo  pur  grand  summe  d'argent,  et  si  un  prend  ceo,  il  n'est  reason  que  elle  aura 
action  vers  luy  pur  le  plaisir  que  elle  avoit  en  luy ;  "  this  view  was  pushed  to  an 
extreme  by  Hales,  J,,  in  Edward  VI. 's  reign,  who  ruled  that  it  was  no  felony  to 
take  a  precious  stone,  Stephen,  H.C.L.  iii  143. 

2  Y.B.  12  Hy.  VIII.  Trin.  pi.  3,  Brt(dnel  said,  "  Pur  ceo  que  tiels  choses  sont 
fera  natures  et  bestes  sauvages  jeo  n'aurai  appel  de  felony,  pur  ceo  que  jeo  n'ay 
ascun  propriete  in  eux,  car  nul  poit  dire  fcras  suas;^^  22  Ass.  pi.  95  it  was 
admitted  that  the  law  was  otherwise, if  they  were  kept  in  confinement;  for  a 
modern  application  of  this  principle  see  R.  v.  Townley  (1870)  i  C.C.R,  315. 

^  22  Ass.  pi.  99. 

^  Y.B.  49  Hy.  VI.  Mich.  pi.  9,  Choke,  "  11  semble  que  il  n'est  felony  pour  deux 
causes,  I'un  ils  sont  issint  reals  que  il  ne  puit  estre  felony.  .  .  .  Auter  cause  est 
pour  ce  que  ils  ne  poient  estre  values." 

•^  "  Un  obligation  n'est  valuable  mes  un  chose  in  accion,"  Dyer  5b  (1533). 

■^Stephen,  H.C.L.  iii  144;  Cayle's  Case  (1584)  8  Co.  Rep.  32a.  For  the 
statutory  modifications  of  these  rules  see  Stephen,  op.  cit.  147-149 — as  he  points 
out,  a  statute  was  passed  as  early  as  1429  (8  Henry  VI.  c.  12  §  3)  to  make  the 
stealing  of  records  felony. 

8  P.  and  M.  ii  492,  493.  »  P.C.  i  532. 

10  Y.B.  44  Ed.  III.  Pasch.  pi.  32. 

"Y.B.  13,  14  Ed.  III.  (R.S.)  352  =  Fitz.,  Ab.  Corone  pi,  115. 


WRONGS  TO  PROPERTY  369 

Burglary. 

It  is  probable  that  the  nature  of  the  crime  which  the  common 
law  knows  as  burglary  was  not  completely  determined  in  this 
period.  According  to  Coke,  "A  burglar  is  a  felon  that  in  the 
night  breaketh  and  entreth  into  the  mansion  house  of  another,  of 
intent  to  kill  some  reasonable  creature,  or  to  commit  some  other 
felony  within  the  same,  whether  his  felonious  intent  be  executed 
or  not."  ^  The  Anglo-Saxons  knew  the  crime  of  hamsoken  or 
breaking  into  a  house  ;'^  and  Britton^  tells  us  that  those  who 
feloniously  break  churches,  houses,  or  the  walls  and  gates  of  cities 
are  burglars.  But  neither  in  Britton's  definition,  nor  in  the  cases 
cited  in  Fitzherbert's  Abridgment,^  is  the  time  of  the  commission 
of  the  crime  an  element  in  it.  There  was  no  doubt  a  disposition 
in  some  cases  to  regard  certain  crimes  committed  at  night  as 
more  serious  than  if  they  were  committed  by  day ;  and,  as  Maitland 
remarks,  Bracton  speaks  of  the  crime  of  hamsoken  in  close  connec- 
tion with  the  fur  nocturnus.^  But  probably  the  rule  that  burglary 
can  only  be  committed  at  night  is  not  much  older  than  the 
sixteenth  century.  For  the  appearance  of  the  word  "  noctanter^^ 
in  the  indictment  Coke  can  cite  no  earlier  authority  than  a  case 
of  Edward  VI. 's  reign  ;  ^  and  Staunford  cites  no  authority  at  all 
— merely  saying  that  for  all  that  appears  in  the  older  authorities 
the  crime  might  as  well  be  committed  by  day  as  by  night,  but 
that  the  law  is  not  so  now.^  Asa  matter  of  fact,  certain  cases 
of  breaking  into  or  robbing  in  dwelling-houses,  whether  by  day 
or  night,  had  been  made  felonies  by  statutes  of  Henry  VIII., 
Edward  VI.,  Mary,  and  Elizabeth's  reigns;^  and  this  may  have 
led  to  the  restriction  of  the  common  law  felony.  The  result  was 
that  housebreaking  in  the  daytime,  unless  it  fell  within  some  one 
of  these  statutes,  sank  to  the  level  of  a  misdemeanour. 

That  the  intent  of  the  breaking  and  entering  must  be  to 
commit  a  felony  was  settled  as  early  as  Henry  IV.'s  reign.^ 
The  questions  what  can  be  said  to  be  a  house  and  what  will 
amount  to  breaking  and  entering  have  been  elaborated  by  later 
decisions. 

1  Third  Instit.  63.  2  p^  ^nd  M.  ii  491,  492. 

3  Britton  i  42. 

4  Fitz.,  Ab.  Cor  one  pi.  185  =  22  Ass.  pi.  95 ;  264. 
^  P.  and  M.  ii  492  n.  2. 

s  Third  Instit.  63,  citing  Bro.,  Ab.  Corone  pi.  180  (2  Ed.  VI.),  and  185  (4  Ed.  VI.) ; 
the  latter  entry  runs,  "  Burglarie  ne  sera  adjudge  nisi  ou  le  infriendre  del  meason  est 
per  noctem." 

'''  P.C.  i  24,  *•  Et  nota  que  pur  ascun  chose  contenus  in  ceux  livres  [the  Y.BB.] 
burglary  peut  estre  fait  auxi  bien  au  jour  come  au  nuit,  etc.  Mes  le  ley  n'est  issint 
prise,  quar  tous  lenditementes  de  burglary e  sont  quod, noctanter /regit." 

8  For  these  statutes  see  Hale,  P.C.  i  548 

9Y.B.  13  Hy.  IV.  Mich.  pi.  20/^;'  Hankford;  Fitz.,  Ab.  Corone  pi.  229. 
VOL.   III.— 24 


370  CRIME  AND  TORT 

Arson. 

Arson,  like  burglary,  is  a  crime  against  the  sanctity  of  the 
homestead.  It  is  described  by  Coke  as  *'a  felony  at  the  common 
law  committed  by  any  that  maliciously  and  voluntarily  in  the  day 
or  night  burneth  the  house  ot  another."^  ''House"  in  this 
definition  is  taken  more  largely  than  in  the  definition  of  burglary. 
"  For  the  indictment  of  burglary  must  say  domum  mansionalem, 
but  so  need  not  the  indictment  of  burning,  but  domuni^  viz.  a 
barn,  malt-house  or  the  like."^  From  the  Anglo-Saxon  times 
arson  was  regarded  as  the  worst  of  crimes  ;  ^  and  as  late  as  John's 
reign  the  punishment  was  death  by  burning."*  But  the  law  on 
this  point  changed,  and  its  punishment  became  the  same  as  that 
of  the  other  felonies — certainly  as  early  as  Edward  II.'s  reign. ^ 
From  the  first  the  element  of  malice  was  required — Bracton 
remarks  that  a  fire  caused  merely  negligently  gives  rise  only  to  a 
civil  action.^  The  common  law  crime  of  arson  did  not  cover 
much  ground.  Some  part  of  the  building  must  have  been  burnt ; 
and  the  building  burnt  must  belong  to,  i.e.  be  occupied  by,  another, 
so  that  if  a  tenant  burnt  his  house  he  did  not  commit  arson.'' 
As  in  other  cases  the  crime  has  been  largely  extended  by  statute.^ 

The  narrowness  of  the  crime  of  arson  at  common  law  is  the 
more  remarkable  when  we  remember  that  it  was  *'  the  only  form 
of  injury  to  property  that  was  recognized  by  the  common  law  as 
a  crime."  ^  All  other  kinds  of  damage  to  property  were  treated 
simply  as  trespasses.  Here,  as  in  the  case  of  offences  to  the 
person, ^"^  the  civil  aspect  of  trespass  was  dwarfing  the  criminal 
aspect ;  and,  as  I  have  said  before,  the  wide  field  which  the  writs 
of  trespass  cover  is  the  best  proof  of  the  scantiness  of  the  criminal 
law.  The  man  who  has  put  a  cat  into  his  neighbours  dove-cot,^^ 
or  who  has  extracted  wine  from  his  neighbour's  casks  and  filled 
them  with  sea  water ;  ^^  the  man  who  has  removed  his  neighbour's 
landmark,^^  or  destroyed  his  neighbour's  sea  wall ;  ^^  the  man  who 
has  laid  waste  his  neighbour's  fields,^^  or  besieged  his  house  ^^ — all 
are  sued  by  an  action  of  trespass.  Moreover,  the  writs  of  trespass 
on  the  case  were,  as  we  shall  see  in  the  following  section,  begin- 
ning to  lay  the  foundations  of  our  modern  law  as  to  civil  liability 

1  Third  Instit.  66;  Hale,  P.C.  i  cap.  xlix. 

2  Third  Instit.  67.  3  p,  and  M.  ii  490. 
^Gloucester  Pleas  pi.  216,  cited  P.  and  M.  ii  490  n.  7;  Britton  i  41. 
5  Hale,  P.C.  i  566,  citing  H.  7  Ed.  II.  Coram  Rege  Rot.  88  Norf. 
^Bracton  f.  146b;  P.  and  M.  ii  491. 

'  Holmes's  Case  (1635)  Cro.  Car.  377. 

^  The  various  statutes  are  now  consolidated  by  24,  25  Victoria  c.  97. 

^  Kenny,  Criminal  Law  166.  i^"  Above  317-318. 

^^  Register  f.  106.  i^jbid  f,  g^b. 

laibidf.  107b.  ^^  Ibid  f.  92b. 

i^Ibidf.  94.  16  Ibid  f.  95. 


PRINCIPLES  OF  LIABILITY  371 

for  wrongdoing,  and,  as  we  shall  see  in  the  following  chapter,  our 
modern  law  of  contract. 


§  8.  The  Principles  of  Liability 

In  the  thirteenth  century  there  are  many  evidences  that  the 
old  principles  of  liability  as  they  existed  in  the  days  before  the 
Norman  Conquest  were  still  remembered.^  We  have  seen  that  a 
man  who  has  killed  another  by  misadventure,  though  he  may 
deserve  a  pardon,  is  guilty  of  a  crime ;  and  the  same  rule  applies 
to  one  who  has  killed  another  in  self-defence,^  and  to  one  who  is 
a  lunatic  ^  or  an  infant.^  It  is  only  in  very  exceptional  cases  that 
killing  is  absolutely  justified.^  A  man  is  still  liable  for  all  the 
harm  done  by  animals  while  under  his  control ;  ^  and  the  existence 
of  the  deodand  testifies  to  a  survival  from  the  time  when  anything 
instrumental  in  doing  the  wrong  was  regarded  as  tainted  with 
guilt. '^  It  is  true  that  a  master  is  not  necessarily  liable  for  the 
wrongful  acts  of  his  servants ;  but  we  can  see  traces  of  the  older 
principles  under  which  he  was  held  to  be  liable  in  the  rule  which 
made  him  responsible  for  the  doings  of  his  household  or  "  main- 
past  ;  "  ^  and  in  the  rule  which,  as  a  condition  of  escaping  liability, 
required  him  to  swear  that  he  had  nothing  to  do  with  the  wrongful 
act.^  Even  those  who  had  acted  under  duress  in  times  of  war  or 
rebellion  did  not  escape  scot  free.^*^ 

All  these  survivals  point  to  the  permanence  of  the  old  prin- 
ciples ;  but  the  influence  of  the  civil  and  canon  law  tended  to 
make  them  look  archaic.  Bracton  would  have  liked  to  rationalize 
the  law  by  the  aid  of  these  more  civilized  systems.^^  But,  as  we 
have  seen,  they  ceased  to  exercise  any  appreciable  influence  on 
the  development  of  English  law  after  the  thirteenth  century .^^ 
In  working  out  the  principles  of  liability,  as  in  constructing  a  law 
of  contract, ^^  English  lawyers  were  thrown  back  upon  themselves, 
and  were  obliged  to  evolve  by  their  own  efforts  the  new  principles 
demanded  by  an  advancing  civilization. 

I  shall  deal  in  this  section  firstly  with  criminal,  and  secondly 
with  civil  liability.     Though,  as  I  have  said,  crime  and  tort  are 

1  Vol.  ii  50-54.  2  Above  312-313. 

3  P.  and  M.  ii  478;  Fitz.,  Ab.  Corone  pi.  412  (8  Ed.  II.). 

4  Below  372;  cp.  Hale,  P.O.  i  24;  the  Register  f.  309b — a  pardon  granted  to  a 
child  under  seven. 

^  Above  310-31 1,  ^12.  ^  Vol.  ii  47,  52.  "^  Ibid  47. 

8  Below  383 ;  cp.  Fitz.,  Ab.  Corojie  pi.  428  (8  Ed.  II.). 

^Bracton  f.  204b;  Bracton's  Note  Book  Cases  779,  781;  Y.B.  30,31  Ed.  I, 
(R.S.)  532. 

^•^  See  extracts  from  the  Dictum  de  Kenilworth,  cited  Hale,  P.C.  i  50,  51. 
"  Vol.  ii  258-259.  12  Ibid  359,  452. 

^3  Below  413. 


372  CRIME  AND  TORT 

not  sharply  distinguished  in  this  period,  the  distinction  is  begin- 
ning to  emerge ;  and  it  is  in  the  different  principles  of  liability 
which  are  applicable  that  it  appears  most  plainly. 

Criminal  Liability 

We  have  seen  that  by  Edward  I.'s  reign  the  tender  age  of 
the  delinquent  was  admitted  as  an  excuse.^  We  have  seen,  too, 
that  necessary  self-defence,  misadventure,  or  lunacy  were  admitted 
to  be  good  grounds  for  mitigation  of  punishment.^  These  de- 
partures from  the  older  principles  continued  all  through  this 
period  to  take  the  form  simply  of  mitigations  of  punishment 
But  they  tended  to  grow  more  precise ;  and  their  growing  pre- 
cision doubtless  helped  to  develop  the  view  that  the  proof  of 
some  of  these  facts  should  negative  guilt.^  This  will  clearly 
appear  from  the  manner  in  which  they  are  dealt  with  in  the 
later  law. 

As  early  as  Edward  1 1  I.'s  reign  it  was  ruled  that  offences 
committed  under  compulsion  in  time  of  war  or  rebellion  were 
excusable.^  We  have  seen  that  the  meaning  of  self-defence  and 
misadventure  was  being  more  precisely  defined.^  With  regard 
to  crimes  committed  by  children  it  was  settled  in  later  law  that 
a  child  below  the  age  of  seven  cannot  be  guilty  of  felony,  that 
between  seven  and  fourteen  there  is  a  rebuttable  presumption  to 
the  same  effect,  and  that  over  fourteen  he  is  fully  doli  capax.^ 
The  law  is  not  quite  settled  in  this  way  in  this  period;  but  it  is 
tending  to  such  a  settlement  J  In  Henry  VI.'s  reign  Moile,  J., 
was  shocked  that  even  a  civil  action  for  trespass  to  the  person 
should  be  brought  against  a  child  of  four.^  Similarly  madness, 
if  it  existed  when  the  crime  was  committed,  was  a  defence.^     In 

1  Vol.  ii  358  n.  8.  2  Above  312-313,  316. 

3  Cp.  Y.B.  4  Hy.  VII.  Hil.  pi.  3. 

^Hale,  P.C.  i  49,  50,  citing  records  of  Mich.  21  Ed.  III.  Coram  Rege  Rot.  loi 
Line,  and  Mich.  7  Hy.  V.  Coram  Rege  Rot.  20  Heref. ;  and  cp.  record  of  14  Ed.  II., 
cited  at  pp.  56-58. 

^Above  313-314. 

^  Plowden  19  n.  /;  Hale,  P.C.  i  24-29;  in  the  Eyre  of  Kent  (S.S.)  i  108  it  was 
said  that  a  child  of  twelve  could  not  be  outlawed  because  he  "  was  not  of  a  tithing  nor 
sworn  to  the  law." 

7Y.BB.  3  Hy.  VII.  Hil.  pi.  4,  and  Mich.  pi.  8;  35  Hy.  VI.  Mich.  pi.  18;  so 
early  as  Edward  II. 's  reign  the  judges  were  applying  the  maxim  '*  malitia  supplet 
aetatem,"  the  Eyre  of  Kent  (S.S.)  i  148-149 ;  see  also  Fitz.,  Ab.  Corone  pi.  ri8  =  Y.B. 
II,  12  Ed.  III.  (R.S.)  627. 

^  Y.B.  35  Hy.  VI.  Mich.  pi.  18,  ^^  Moile  dit  a  Wangford,  purres  vous  trouver  en 
vostre  conscience  a  declarer  envers  ce  enfans  de  ceo  tendre  age  ?  Jeo  croy  que  il  ne 
scait  ascun  malice,  car  il  n'est  person  de  grand  pouvoir  .  .  .  et  cum  hoc  Moile  leve 
sus  meme  person,  supporte  I'enfans  ove  sa  main,  et  luy  mit  en  le  Place,  et  dit  a 
Wangford,  icy  est  le  person;  et  pur  ceo  advises  vous." — All  counsel  could  say  was 
that  he  was  instructed  that  the  child  had  put  out  his  client's  eye. 

^  Under  the  older  law  the  chattels  were  forfeited,  Fitz.,  Ab.  Corone  pi.  412  (8  Ed. 
II.),  but  it  was  about  this  time  the  law  was  changing,  as  in  a  case  of  this  kind  in  the 


CRIMINAL  LIABILITY  373 

the  case  of  damage  done  by  animals,  knowledge  on  the  part  of 
the  owner  that  the  animal  was  fierce  was  necessary  to  fix  him 
with  criminal,  and  perhaps  even  civil,  liability.^  We  can  see 
the  beginnings  of  the  rules  which  excused  a  wife  in  case  of  the 
commission  of  certain  crimes  under  the  coercion  of  her  husband.^ 
Both  married  women  and  infants  were  granted  certain  procedural 
privileges,  based  upon  the  presumption  of  their  incapacity  to 
understand  and  obey  as  a  full-grown  man.^ 

These  rules  make  it  clear  that  the  law  was  laying  more 
emphasis  upon  the  ethical  element  in  wrongdoing.  It  was 
beginning  to  be  felt  that  the  essence  of  the  more  serious  crimes 
lay  in  the  intent  with  which  the  act  was  done ;  and  we  even  find 
cases  in  which  the  judges  took  the  will  for  the  deed,  and  punished 
the  intent  only,  though  the  act  was  not  accomplished.*  This  was 
a  dangerous  doctrine,  but  tempting  perhaps  at  a  time  when  there 
was  no  legislation  directed  against  attempts  to  commit  crimes. 
There  is  no  evidence,  however,  that  it  was  ever  generally  held 
in  the  case  of  ordinary  felonies.  It  was  only  in  the  case  of  high 
treason  that  an  intent  was  made  criminal.  The  completed  act 
was  required  together  with  an  intent  in  all  other  cases.^  But 
the  common  forms  of  presentments  and  indictments  strengthened 
the  idea  that  accompanying  the  act  there  should  be  an  element 
of  moral  wrongdoing.  Accordingly,  in  the  later  Year  Books  the 
felonies  were  differentiated  from  civil  wrongs  on  this  basis. 
"  Felony,"  said  Fairfax,*^  "  is  of  malice  prepense,  and  when  an 

Eyre  of  Kent  of  6,  7  Ed,  II.  (i  81)  the  chattels  were  not  forfeited ;  the  law  was  settled 
in  this  way  in  Edward  III.'s  reign,  Fitz.,  Ab.  Corone  pi.  244  (22  Ed.  III.) ;  see  Hale, 
P.C.  i  35,  36 ;  26  Ass.  f.  123  pi.  27 ;  Y.B.  21  Hy.  VII.  Mich.  pi.  16 ;  above  316. 

1  Fitz.,  Ab.  Corone  pi.  311  (1330),  a  presentment  was  made  that  a  child  had  been 
killed  by  a  cow,  "  et  demande  fuit  si  elle  fuit  accustome  de  male  faire,  et  ils  disent 
que  oile ;  et  demande  fuit  si  le  home  fuit  en  vie  que  aver  la  jument,  que  disent  que 
non ;  et  dit  fuit  s'il  ust  estre  en  vie  il  ust  estre  arraigne  de  mort  et  amercy  vers  le  roy ; 
mes  quatenus  il  connust  sa  maner  il  duist  aver  luy  lie  en  un  sur  lieu." 

2  Hale,  P.C.  i  45,  and  the  record  cited  at  p.  47;  27  Ass.  f.  137  pi.  40;  Fitz.,  Ab. 
Corone  pi.  160  ;  Kelyng  31. 

3  They  are  not  imprisoned  according  to  the  provisions  of  Stat.  West.  II.  though 
they  vouch  a  record  and  fail  at  the  day,  13  Ass.  pi.  i,  cited  Hale,  P.C.  i  20 ;  an  infant 
is  not  imprisoned  though  he  fail  to  attach  an  offender,  Fitz.,  Ab.  Corone  pi.  395  ;  in 
Y.B.  12  Rich.  II.  21  it  is  said  that  neither  laches  nor  folly  nor  prejudice  could  be  im- 
puted to  an  infant ;  but  the  exact  limits  of  these  privileges  were  not  clear,  see  the 
Y.BB.  cited  by  Hale,  P.C.  i  21,  notes/,  h,  and  i. 

4  Fitz.,  Ab.  Corone  pi.  383  (15  Ed.  II.) ;  Stephen,  H.C.L.  ii  222;  P.  and  M.  ii 
474  n.  5.  This  was  a  case  of  homicide;  for  similar  rules  in  the  case  of  larceny, 
robbery,  etc.,  cp.  Y.B.  25  Ed.  III.  Pasch.  pi.  33  ;  27  Ass.  pi.  38;  Y.B.  13  Hy.  IV. 
Mich.  pi.  20;  Staunford,  P.C.  i  20;  Coke,  Third  Instit.  5;  Ellesmere's  judgment  in 
Calvin's  Case  2  S.T.  at  pp.  674-675 ;  Hale,  P.C.  i  425-426,  532.  Maitland  thinks 
that  the  adoption  of  this  maxim,  Voluntas  reptitahitur  pro  facto,  "  was  but  a  moment- 
ary aberration ;  "  but  Staunford,  Coke,  Ellesmere,  and  Hale  treat  it  as  seriously  held 
in  Edward  III.'s  reign. 

^  Above  315  ;  Plowden  259;  Coke,  Third  Instit.  5. 

6  Y.B.  6  Ed.  IV.  Mich.  pi.  18 ;  cp.  13  Ed.  IV.  Pasch.  pi.  5  per  Hussey,  the  Chan- 
cellor, and  Molineux,  above  361  n,  10, 


374  CRIME  AND  TORT 

act  is  done  against  a  man's  will  there  is  no  felonious  intent."  It 
may  be  that  in  civil  cases  the  law  will  deem  that  the  intent  of  a 
man  is  not  triable;^  but  in  criminal  cases,  as  Rede,  J.,  said,  the 
intent  shall  be  tried ;2  "for  instance,  if  a  man  is  shooting  at  the 
butts,  and  kills  another,  it  is  not  felony,  and  it  shall  be  accounted 
as  if  he  had  had  no  intent  to  kill  him ;  and  so  in  the  case  of  a 
tiler  on  a  house  who  with  a  stone  kills  a  man  unwittingly,  it  is 
not  felony."  In  one  of  the  cases  of  high  treason,  as  we  have 
seen,  the  intent  itself — the  compassing  or  imagining  of  the  king's 
death — constituted  the  offence ;  ^  and  it  is  just  the  presence  or 
absence  of  this  element  of  wrongful  intention  which  differentiates 
felony  from  trespass.  It  is  taken  as  one  of  the  tests — perhaps 
the  chief  test — which  distinguishes  criminal  from  civil  liability. 
It  would  not,  of  course,  be  true  to  say  that  it  is  or  can  be  the 
only  test.  At  all  times  the  state  may  find  it  expedient  to  sup- 
press acts  which  it  deems  to  be  dangerous  by  saying  that  those 
who  do  them  are  guilty  of  a  crime,  whether  or  not  they  had  any 
intention  to  do  the  act  in  question.^  Or,  again,  the  state  may 
find  it  convenient  to  presume  a  guilty  intent  from  a  course  of 
conduct  which  appears  to  be  dangerous,^  In  such  cases  as  these 
a  man  may  be  held  to  be  guilty  of  crime  though  he  had  no  guilty 
intent  at  all,  or  no  intent  to  commit  the  crime  which  the  law 
imputes  to  him.  But  these  are  really  exceptional  cases.  The 
general  rule  of  the  common  law  is  that  crime  cannot  be  imputed 
to  a  man  without  mens  i^ea.^  It  is,  of  course,  quite  another  ques- 
tion how  the  existence  of  that  mens  rea  is  to  be  established. 
The  thought  of  man  is  not  triable  by  direct  evidence ;  but  if  the 
law  grounds  liability  upon  intent  it  must  endeavour  to  try  it  by 
circumstantial  evidence.  Much  of  that  circumstantial  evidence 
will  be  directed  to  show  that  a  man  of  ordinary  ability,  situated 
as  the  accused  was  situated,  and  having  his  means  of  knowledge, 
could  not  have  acted  as  he  acted  without  having  that  mens  rea 
which  it  is  sought  to  impute  to  him.  In  other  words,  we  must 
adopt  an  external  standard  in  adjudicating  upon  the  weight  of 
the  evidence  adduced  to  prove  or  disprove  mens  rea.     That,  of 

^Per  Brian  Y.B.  17  Ed.  IV.  Pasch.  pi.  2;  and  cp.  Y.BB.  33-35  Ed.  I  (R.S.)  32^  ; 
17,  18  Ed.  III.  (R.S.)  464;  20  Ed.  III.  (R.S.)  ii  396. 

2  Y.B.  21  Hy.  VII.  Trin.  pi.  5,  "  Coment  que  1' entente  del  defendant  icy  suit  bon; 
uncore  intant  que  I'entente  ne  puit  estre  construi :  mes  in  felony  il  sera." 

2  Above  292. 

^  For  a  modern  instance  see  Parker  v.  Alder  [1899]  i  Q.B.  20 ;  on  this  matter 
generally  see  Kenny,  Criminal  Law  46-47;  R.  v.  Prince  (1875)  L.R.  2  C.C.R.  154; 
R.  V.  Tolson  (i88g)  23  Q.B.D.  168. 

5  See  Stephen's  Digest  of  Criminal  Law,  Art,  223,  for  the  various  states  of  mind 
which  may  constitute  tlie  "  malice  aforethought  "  which  will  make  homicide  murder. 

"Williamson  v.  Norris  [1899]  1  Q.B.  at  p.  14  Lord  Russell,  C.J.,  said,  "The 
general  rule  of  English  law  is  that  no  crime  can  be  committed  unless  there  is  mens 


CIVIL  LIABILITY  375 

course,  does  not  mean  that  the  law  bases  criminal  liability  upon 
non-compliance  with  an  external  standard.  So  to  argue  is  to 
confuse  the  evidence  for  a  proposition  with  the  proposition  proved 
by  that  evidence.^ 

Civil  Liability 

The  mitigations  existing  at  this  period  of  the  old  strict 
principles  of  criminal  liability  are  not  found  in  the  case  of  civil 
liability.  The  reason  is  well  explained  by  Hale.  He  points 
out  that  such  incapacities  as  infancy,  madness,  compulsion,  or 
necessity  do  not  excuse  the  person  suffering  from  them  from  a 
liability  to  a  civil  action  for  damages  for  the  wrong  done,  "be- 
cause such  a  recompense  is  not  by  way  of  penalty,  but  a  satis- 
faction of  damage  done  to  the  party ;  but  in  cases  of  crimes  and 
misdemeanours,  where  the  proceedings  against  them  are  ad 
poenam^  the  law  in  some  cases  .  .  .  takes  notice  of  these  defects, 
and  .  .  .  relaxeth  .  .  .  the  severity  of  their  punishments."^ 
Thus  throughout  this  period  the  old  ideas  still  dominated  the 
principles  of  the  law  as  to  civil  liability.  The  general  rule  is 
that  a  man  is  liable  for  the  harm  which  he  has  inflicted  upon 
another  by  his  acts,  if  what  he  has  done  comes  within  some  one 
of  the  forms  of  action  provided  by  the  law,  whether  that  harm 
has  been  inflicted  intentionally,  negligently,  or  accidentally.  In 
adjudicating  upon  questions  of  civil  liability  the  law  makes  no 
attempt  to  try  the  intent  of  a  man,^  and  the  conception  of  negli- 
gence has  as  yet  hardly  arisen.     A  man  acts  at  his  peril. 

It  is  not  difficult  to  illustrate  these  conceptions  from  decided 
cases.  In  the  Year  Book  of  6  Edward  IV.*  a  case  is  reported, 
the  facts  of  which  are  as  follows  :  The  plaintiff  brought  trespass 
against  the  defendant  for  breaking  his  close  and  trampling  down 
his  grass.  The  defendant  pleaded  that  he  was  cutting  thorns 
upon  his  own  land,  that  some  of  the  thorns  fell,  ipso  invito,  on 
the  plaintiff's  land,  that  he  came  at  once  on  to  the  plaintiffs  land 
and  collected  them,  and  that  this  was  the  trespass  complained 
of.  The  court  held  that  this  plea  disclosed  no  defence ;  and  the 
reasoning  of  Brian  and  Littleton  shows  clearly  that  the  old  ideas 
still  held  their  ground.  Brian  said,  "When  a  man  does  a  thing 
he  is  bound  to  do  it  in  such  a  way  that  by  his  acts  he  causes  no 
damage  to  others.     If,  for  instance,  I  am  building  a  house,  and 

^  See  Angus  v.  Clifford  [1891]  2  Ch.  at  p.  471  per  Bowen,  L.J. 

2  Hale,  P.C.  i  15,  16.  There  were  some  few  cases  in  which  laches  would  not 
prejudice  an  infant  in  other  than  criminal  proceedings  (see  Litt.  §§  402,  403  and  Coke's 
comment) ;  but  these  cases  relate  chiefly  to  real  actions,  and  have  little  bearing  on 
criminal  or  delictual  liability. 

=•  Above  374  n.  i. 

^y.B,  6  Ed,  IV.  Mich.  pi.  18;  Holmes,  Common  Law  85-87, 


376  CRIME  AND  TORT 

while  the  timber  is  being  put  up  into  position  a  piece  falls  on 
my  neighbour's  house,  he  will  have  a  right  of  action,  though  the 
building  of  the  house  was  lawful,  and  the  timber  fell  me  invito. 
So,  too,  if  a  man  assaults  me,  and  I  cannot  avoid  him,  but  as  he 
is  about  to  hit  me,  I  in  my  defence  raise  my  stick  to  strike  him, 
and  there  is  one  behind  me,  and  in  raising  my  stick  I  hurt  him, 
in  this  case  he  has  a  right  of  action  against  me,  though  the  rais- 
ing of  my  stick  in  self-defence  was  lawful,  and  though  1  hurt 
him  me  invito ;  so  in  this  case."  Littleton  said,  "If  your  cattle 
come  upon  my  land  and  eat  my  grass,  though  you  come  at  once 
and  drive  them  off,  you  must  make  amends  for  what  your  cattle 
have  done.  .  .  .  And,  sir,  if  it  is  law  that  he  can  enter  and  take 
the  thorns,  by  the  same  reasoning  if  he  cut  down  a  great  tree  he 
could  come  with  carts  and  horses  and  carry  away  the  branches, 
which  is  clearly  against  reason,  for  there  might  be  corn  there  or 
other  growing  crops ;  no  more  can  he  do  such  a  thing  in  this 
case,  for  the  law  is  the  same  for  small  things  as  for  great,  and 
according  to  the  extent  of  his  trespass  he  must  pay  damages." 
It  is  clear  from  the  language  used  in  this  case  that  the  plea  of 
accident  was  no  defence  in  an  action  for  trespass,  either  to  the 
person  or  to  property ;  and  there  are  other  decisions  which  lay 
down  a  similar  rule.^  This  principle  seems  to  have  been  applied 
whether  the  damage  were  done  by  a  man's  animals  or  by  him- 
self.^ On  the  same  principle  the  law  declined  to  excuse  lunatics 
and  infants  ^  who  by  their  acts  had  damaged  another.  The  state 
might  remit  penalties,^  but  they  were  civilly  liable  like  any  one 
else  to  pay  damages  to  the  injured  party.  Bacon,  in  his  Maxims, 
accurately  summed  up  the  law  as  it  existed  then  and  in  his  day.^ 
''  In  capital  cases,  in  favorem  vitce^  the  law  will  not  punish  in  so 
high  a  degree,  except  the  malice  of  the  will  and  intention  do 
appear ;  but  in  civil  trespasses  and  injuries  that  are  of  an  inferior 
nature,  the  law  doth  rather  consider  the  damage  of  the  party 
wronged,  than  the  malice  of  him  that  was  the  wrongdoer.  .  .  . 
So  if  a  man  be  killed  by  misadventure,  as  by  an  arrow  at  butts, 

^  Y.B.  35  Hy.  VI.  Mich.  pi.  i8,  above  372  n.  8.  Moile  appeals  to  counsel  not  to 
go  on  with  the  case  against  the  child  because  he  could  not  have  known  what  he  was 
doing,  so  that  there  could  hardly  be  said  to  be  an  act  in  this  case;  but  he  seems  to 
admit  that  if  the  child  pleaded  and  was  found  guilty  the  judge  would  have  no  dis- 
cretion; Y.B.  21  Hy.  VII.  Trin.  pi.  5  ;  see  a  similar  rule  applied  to  liability  for  waste, 
Y,B.  19  Ed.  III.  (R.S.)  194,  ig6.  It  was  otherwise  if  the  act  was  done  with  the 
assent  of  the  plaintifiF  so  that  the  maxim,  volenti  non  fit  injuria  was  applicable,  Y.B. 
12  Rich,  II.  125. 

2Y.BB.  10  Ed.  IV.  Pasch.  pi.  19;  20  Ed.  IV.  Mich.  pi.  10;  as  to  dogs  and  the 
scienter  rule,  see  below  381. 

3  Y.B.  2,  3  Ed.  II.  (S.S.)  112 — the  parol  will  not  demur  for  the  defendant's  nonage 
if  he  is  personally  charged  with  tort;  below  515,  516. 

^  Above  372. 

^  Bacon,  Maxims,  Regula  vii,  Works  (ed.  Spedding)  vii  347,  348. 


CIVIL  LIABILITY  377 

this  hath  a  pardon  of  course ;  but  if  a  man  be  hurt  or  maimed 
only,  an  action  of  trespass  lieth,  though  it  be  done  against  the 
party's  mind  and  will,  and  he  shall  be  punished  in  the  same  as 
deeply  as  if  he  had  done  it  of  malice.  .  .  .  So  if  an  infant  within 
years  of  discretion,  or  a  madman,  kill  another,  he  shall  not  be 
impeached  thereof;  but  if  he  put  out  a  man's  eye,  or  do  him 
like  corporal  hurt,  he  shall  be  punished  in  trespass." 

This  strict  theory  of  civil  liability  is  quite  consistent  with  the 
fact  that  the  law  occasionally  allows  that  certain  kinds  of  harm 
may  be  justifiably  inflicted. 

In  the  first  place,  in  the  public  interest,  the  law  must  make 
some  exceptions  of  this  kind  to  its  theories  of  liability ;  and  the 
public  interest  demands  that  such  exceptions  shall  be  made  to 
the  usual  rules  of  civil  no  less  than  to  the  usual  rules  of  criminal 
liability.^  In  1293  the  fact  that  the  hue  and  cry  had  been 
raised  and  that  the  plaintiff  had  been  in  consequence  attached 
and  imprisoned  for  failure  to  find  pledges  was  considered  to  be 
a  good  defence  to  an  action  for  trespass.^  In  Henry  VI I. 's  reign 
the  general  principle  of  such  cases  was  explained  by  Kingsmill, 
J,3  ''When  the  goods  of  anyone,"  he  said,  "are  taken  against 
his  will,  the  taking  must  be  justified  either  because  it  is  necessary 
for  the  Commonwealth  or  because  of  a  condition  in  law.  Firstly, 
for  a  matter  concerning  the  Commonwealth  a  man  shall  justify 
the  taking  of  goods  out  of  a  house  when  that  is  necessary  for  the 
safety  of  the  goods,  or  the  pulling  down  of  a  house  for  the  safety 
of  others.  So  in  time  of  war  a  man  shall  justify  an  entry  upon 
another's  land  to  make  a  bulwark  for  the  defence  of  king  and 
realm,  and  these  things  are  justifiable  and  lawful  for  the  main- 
tenance of  the  Commonwealth.  And  secondly,  when  a  man 
distrains  my  horse  for  his  rent  it  is  justifiable,  because  the  land 
is  bound  by  this  condition  of  distress ;  and  so  of  other  conditions. 
And  so  by  these  two  ways  a  man  can  justify  the  taking  of  a 
thing  against  the  owner's  will." 

Jn  the  second  place,  other  exceptions  are  needed  for  the 
adequate  protection  of  private  rights.  For  this  reason,  if  an  act 
causing  damage  and  otherwise  actionable  was  done  in  the  neces- 
sary defence  of  the  defendant's  person,  or  in  the  exercise  of  his 
rights  of  property,  no  cause  of  an  action  arose.  Thus  in  a  case 
of  Henry  IV.'s  reign,^  which  has  already  been  cited,  it  is  laid 
down  that  if  A  is  about  to  assault  B,  B  need  not  wait  till  he  is 
actually   hit,  "for  peradventure  his  blow  will  come  too  late;'* 

1  Above  310-311,  312.  2  Y.B.  21,  22  Ed.  I.  (R.S.)  184. 

3  Y.B.  21  Hy.  VII.  Trin.  pi.  5  ;  cp.  Y.B.  19  Ed.  III.  (R.S.)  196;  Mouse's  Case 
(1609)  12  Co.  Rep.  63. 

4Y,B,  2  Hy.  IV.  Mich.  pi.  40. 


378  CRIME  AND  TORT 

and  on  similar  principles  a  battery  by  a  master  in  defence  of  his 
servant  or  vice  versa  was  held  to  be  justifiable.^  In  Edward 
II I. 's  ^  reign,  in  an  action  for  trespass  in  breaking  a  close,  it  was 
held  that  it  was  a  good  defence  to  plead  that  the  place  was 
common,  that  the  defendant  was  a  commoner,  and  that  he  had 
broken  the  close  for  the  purpose  of  exercising  his  right  of  de- 
pasturing his  cattle.  In  these  cases,  though  the  defendant's  act 
may  have  caused  damage,  he  had  not  exposed  himself  to  liability, 
because  he  had  merely  been  exercising  his  legal  rights. 

Obviously  there  is  no  departure  from,  but  rather  an  illustra- 
tion of  the  general  principle  on  the  rule  that,  if  the  act  which 
caused  the  damage  was  the  act  of  the  plaintiff  himself,  then  it  is 
no  cause  of  action.  This  rule  is  established  by  a  case  of  Edward 
I  V.'s  reign,^  the  facts  of  which  were  as  follows  :  The  plaintiff  had 
a  close  adjoining  the  king's  highway,  and  he  sued  the  defendant 
for  damages  caused  by  the  entry  into  Kis  close  of  the  cattle 
which  the  defendant  was  driving  along  the  highway.  The 
defendant's  plea  was  that  the  close  was  not  kept  properly  secured, 
and  that  it  was  the  defect  in  the  closure  which  caused  the  damage. 
The  court  held  this  a  good  plea.  "  If,"  said  Moile,  J.,  "a  man  has 
a  close  which  he  has  enclosed  from  time  immemorial,  and  adjoining 
that  close  I  have  a  way  for  the  purpose  of  driving  my  cattle  to 
such  a  place,  if  the  close  lies  open,  and  my  beasts  being  driven 
along  the  way  enter,  he  will  have  no  right  of  action  against 
me."^  It  is  to  be  observed  that  this  is  exactly  the  substance 
and  meaning  of  that  miscalled  doctrine  *' contributory  neglig- 
ence."^ According  to  this  doctrine,  when  the  plaintiff's  own 
act  is  the  effective  cause  of  the  damage  which  he  has  suffered, 
he  cannot  recover.  But  this  rule  of  law  arose  at  a  time  when 
the  common  law  had  no  doctrine  of  negligence.  The  result  is 
that  the  name  given  to  the  doctrine  does  not  fit  in  with  its  actual 
meaning  ;  nor  does  this  actual  meaning  fit  in  quite  harmoniously 
with  a  system  of  civil  liability  which  is  supposed  to  be  based 

1  Y.BB.  20  Ed.  III.  (R.S.)  i  502 ;  19  Hy.  VI.  Mich.  pi.  59  ;  35  Hy.  VI.  Hil.  pi. 
15 ;  21  Hy.  VII.  Mich.  pi.  50 — it  is  noted  in  the  last  cited  case  that  a  battery  in 
consequence  of  mere  threats  to  assault  is  not  justifiable. 

2Y.B.  II,  12  Ed.  III.  (R.S.)  184-187, /'rr  Sharshulle,  J.;  cp.  Y.B.  17,  18  Ed. 
III.  (R.S.)  628,  630 — a  plea  to  an  action  of  trespass  for  carrying  off  lead  that  the 
lead  belonged  to  the  defendant:  and  cp.  Y.B.  21  Hy.  VII.  Mich.  pi.  50  as  to  the 
right  to  resist  a  riotous  assault  on  one's  house. 

^  Y.B.  10  Ed.  IV.  Pasch.  pi.  19;  the  rule  was  the  same  in  criminal  cases,  Fitz., 
Ab.  Corone  pi.  94  (44  Ed.  III.). 

^Cp.  also  Y.B.  II  Ed,  IV.  Trin.  pi.  6,  "Si  home  moy  vende  un  chival  et 
garrantie  qu'il  ad  deux  ocules,  s'il  n'ad  il  n'avera  accion  de  Disceit  car  jeo  puis  avoir 
conusans  de  ceo  al  commencement." 

'  I  say  "  miscalled  "  because,  as  Sir  F.  Pollock  says  (Torts,  5th  ed.  430),  "It 
rather  suggests  as  the  ground  of  the  doctrine  that  a  man  who  does  not  take  ordinary 
care  for  his  own  safety  is  to  be  in  a  manner  punished  for  his  carelessness  by  disabil- 
ity to  sue  anyone  else  whose  carelessness  was  concerned  in  producing  the  damage." 


CIVIL  LIABILITY  379 

upon  negligence.  For,  "  if  the  defendant  could  finally  have 
avoided  the  mischief  by  ordinary  diligence,  it  matters  not  how 
careless  the  plaintiff  may  have  been  at  the  last  or  any  preceding 
stage  ;  "  ^  and  the  converse  of  this  proposition  is  equally  true.  If 
we  are  basing  our  theories  of  civil  liability  upon  the  fact  that 
the  defendant  has  acted  negligently  to  the  damage  of  the 
plaintiff,  and  not  merely  upon  the  fact  that  he  has  acted  to  his 
damage,  the  justice  of  this  rule  seems  questionable.  It  is  not 
surprising  that  a  doctrine  called  by  this  misleading  name,  and 
leading  to  results  which  do  not  harmoniously  fit  in  with  modern 
ideas  as  to  the  incidence  of  civil  liability,  should  have  given  rise 
to  many  doubts  and  much  discussion  in  modern  times.  All  this 
we  shall  see  when,  in  the  following  Book  of  this  History,  I  relate 
the  later  history  of  this  doctrine.^ 

It  should  be  noted  that  this  case  clearly  shows  that  a  man 
is  not  liable  unless  his  act  is  the  proximate  cause  of  the  damage. 
We  have  got  far  away  from  the  old  ideas  which  disregarded  the 
remoteness  of  the  damage.^  A  man  acts  at  his  peril ;  but  it  is 
the  immediate  and  not  the  remote  consequences  of  his  act  which 
imperil  him.  It  is  to  this  limitation  of  liability  to  the  proximate 
consequences  of  a  man's  act  that  we  must  look  for  one  of  the 
causes  which  will  in  time  partially  subvert  the  older  theory  by 
introducing  the  conception  that  liability  is  based  upon  some 
shortcoming  of  the  defendant  rather  than  upon  his  acts.  The 
only  principle  upon  which  we  can  justify  the  limitation  of  the 
defendant's  liability  to  the  proximate  consequences  of  his  acts 
is,  to  use  the  words  of  Holmes,  the  principle  that,  "if  the  inter- 
vening events  are  of  such  a  kind  that  no  foresight  could  have 
been  expected  to  look  out  for  them,  the  defendant  is  not  to 
blame  for  having  failed  to  do  so."*  This  is  clearly  true  if  we 
strictly  analyse  the  reason  why  we  limit  the  liability  of  a  man 
for  an  act  causing  damage  to  the  proximate  consequences  of  that 
act.  But  in  this  period  this  limitation  of  liability  was  perhaps 
accepted  as  a  measure  of  obvious  justice  without  a  precise  analysis 
of  its  consequences  and  bearing  upon  the  prevalent  theory  of 
civil  liability.     The  conception  of  negligence  is  latent  in  such  a 

1  Pollock,  Torts  431.  2  Bk.  iv.  Pt.  II.  c.  5  §  6. 

3  Vol.  ii  52. 

^Common  Law,  92,  "If  running  a  man  doAvn  is  a  trespass  when  the  accident 
can  be  referred  to  the  rider's  act  of  spurring,  why  is  it  not  a  tort  in  every  case  .  .  . 
seeing  that  it  can  always  be  referred  more  remotely  to  his  act  of  mounting  and  taking 
the  horse  out  ?  Why  is  a  man  not  responsible  for  the  consequences  of  an  act 
innocent  in  its  direct  and  obvious  effects,  when  those  consequences  would  not  have 
followed  but  for  the  intervention  of  a  series  of  extraordinary,  although  natural, 
events  ?  [He  would  have  been  liable  in  the  old  days,  vol.  ii  52.]  The  reason  is 
that,  if  the  intervening  events  are  of  such  a  kind  that  no  foresight  could  have  been 
expected  to  look  out  for  them,  the  defendant  is  not  to  blame  for  having  failed  to 
do  so." 


380  CRIME  AND  TORT 

limitation ;  but  in  this  period  this  latent  consequence  has  not 
been  discovered. 

This  rule,  therefore,  does  not  conflict  with  the  leading 
principle  of  the  mediaeval  common  law  that  a  man  acts  at  his 
peril.  It  is  true  that  we  can  now  see  that  the  limitation  of  the 
defendant's  liability  to  the  proximate  consequences  of  his  acts 
will  necessarily  lead  to  some  modification  of  this  theory;  but 
this  effect  of  the  limitation  is  not  as  yet  realized.  It  is  to  another 
quarter  that  we  must  look  for  the  earliest  conscious  modification 
of  this  theory  of  civil  liability.  As  we  shall  see,  it  does  not, 
even  at  the  very  end  of  the  period,  carry  us  very  far. 

It  was  settled  in  Edward  III.'s  reign  that  if  damage  were 
caused  to  a  barn  by  a  sudden  tempest  no  writ  of  waste  would 
lie  against  the  tenant,  even  though  the  tenant  had  covenanted 
to  restore  the  barn  in  good  condition.^  In  other  words,  necessity 
caused  by  an  "  act  of  God  "  is  a  good  defence  to  an  action, 
because  the  act  causing  damage  is  not  the  act  of  the  defendant. 
This  principle  was  admitted  by  Choke,  J.,  in  the  "  thorns  case" 
discussed  above.^  "To  plead,"  he  said,  "that  the  thorns  fell 
ipso  invito  is  no  good  plea,  but  he  must  say  that  he  could  do  it 
in  no  other  manner,  or  that  he  did  all  that  he  could  to  keep  them 
on  his  ground — otherwise  he  is  answerable  for  damages  ;  and, 
sir,  if  the  thorns  or  a  great  tree  had  been  blown  down,  in  that 
case  he  might  have  entered  the  defendant's  land  to  take  them, 
because  the  fall  was  not  his  act,  but  the  act  of  the  wind^  The 
concluding  words  made  it  pretty  clear  that  Choke  had  no  sort  of 
idea  of  negligence  in  his  mind.^  He  was  merely  putting  the 
case  of  a  necessity  so  strong  that  it  negatived  the  idea  that  an 
act  causing  damage  had  been  done  by  the  defendant.  To  say 
that  a  defendant  is  not  liable  in  such  a  case  is  perfectly  consistent 
with  the  general  principle  of  the  law.  But  when  the  law  im- 
proved upon  this  idea  and  excused  defendants,  not  only  in  cases 
of  necessity,  but  also  in  cases  of  what  we  may  call  convenience 
amounting  to  necessity,  we  do  see  a  small  departure  from  the 
rigidity  of  the  older  principle.  Thus  in  Edward  IV. 's  reign  ^ 
it   was    said    that    if  a    drover   was    driving   cattle   along    .the 

1  Y.B.  43  Ed.  III.  Hil.  pi.  i6 ;  this  is  assumed  in  Y.B.  i8  Ed.  III.  (R.S.)  212— 
though  the  court  denied  that  the  principle  was  applicable  in  the  case  before  it. 

2  Above  375-376 ;  and  cp.  Y.BB.  20  Ed.  III.  (R.S.)  i  82-86 ;  33  Hy.  VI.  Hil. 
pi.  3  for  other  instances  of  this  principle. 

3  But  see  Holmes,  Common  Law  103,  for  another  view.  In  Stanley  v.  Powell 
[189 1]  I  Q.B.  86  it  was  decided  that  for  merely  accidental  trespasses  to  the  person 
no  action  lies ;  but  the  decision  was  based  mainly  on  authorities  subsequent  to  the 
Y.BB.  ;  the  only  Y.B.  cited  in  the  judgment  is  21  Hy.  VII.  Trin.  pi.  5  (below  381) ; 
though  the  decision  is  both  good  sense  and  accepted  as  good  law,  we  may  doubt 
whether  it  would  have  been  arrived  at  in  our  period  ;  for  the  later  development  of  the 
law  see  Bk.  iv.  Pt.  II.  c.  5  §  6. 

^  Y,B.  22  Ed.  IV.  Pasch.  pi.  24. 


CIVIL  LIABILITY  881 

highway  and  by  chance  they  got  a  mouthful  of  corn,  no 
action  lay  ;  and,  in  the  same  case,  that  if  in  ploughing  the 
plough  turned  upon  another's  land,  it  was  generally  held  to  be 
the  custom  of  the  country  that  such  trespass  gave  no  cause  of 
action.  We  should  note,  however,  that  in  both  cases  the  excep- 
tion was  pleaded  as  a  special  custom  of  a  county,  though,  as 
Brian  said,  it  was  a  very  general  custom.^  So  in  Henry  VII.'s 
reign  Rede,  J.,  said,^  '•  that  if  my  cattle  are  with  your  cattle  in 
a  field  I  may  drive  all  the  cattle  together  until  I  get  them  to  a 
strait  place  where  they  can  be  severed."  Perhaps  too  we  should 
class  under  this  head  the  rule,  if  rule  it  was  at  this  period,  that 
damage  done  by  a  dog  was  not  actionable  unless  his  master  knew 
him  to  be  savage.^  It  is  clear  that  if  the  principle  of  such 
decisions  is  extended ;  if  they  become  confused  with  cases  in 
which  the  defendant  is  excused  because  his  act  is  justifiable,  or 
because  the  plaintiff's  act  was  the  proximate  cause  of  the  damage, 
or  because  he  acted  in  his  own  defence ;  if  all  these  causes  of 
excuse  are  considered  in  conjunction  with  the  rule  that  the 
defendant  is  only  answerable  for  the  proximate  consequences  of 
his  actions,  a  door  will  be  opened  to  the  weakening  of  the  old 
rigid  principle,  and  an  opening  will  be  made  for  basing  liability 
upon  the  quality  of  the  act  which  had  caused  damage,  and  not 
merely  upon  the  act  itself.  It  is  clear,  too,  that  with  the  widen- 
ing of  the  area  of  civil  liability  rendered  possible  by  the  widening 
scope  of  writs  of  trespass  on  the  case,  some  such  development 
will  be  necessary.  But  at  the  end  of  our  period  this  process  has 
not  gone  far.  We  merely  see  faint  indications  of  the  quarters 
from  which  a  change  may  come.  When  that  change  has  come 
abundant  traces  will  remain  in  the  law  of  the  mode  in  which  it 
has  been  produced.  As  Professor  Wigmore  says,*  ''  Inevitable 
necessity,  unavoidable  accident,  could  not  act  otherwise,  seem 
indiscriminately  to  hit  off  in  judicial  language  the  reasons  of 
justice  on  which  they  equally  exempted  him  who  acted  in  self- 
defence,  and  him  who  had  not  been  to  blame  for  what  we  now 

1  Brian  al  Townshend,  "  lis  font  en  mon  country  come  Suliard  dit  en  chescun 
country  que  jeo  scay,  forsque  en  votre  paies,  c'est  a  savoir  en  Norfolke,  lou  vous 
gages  votre  chivalx,  issint  que  ils  ne  poient  issint  faire.  Et  la  justification  fuit  agard 
bon,  si  la  custome  soit  tiel  come  il  ad  suppose." 

2Y.B.  21  Hy.  VII.  Trin.  pi.  5  (at  p.  28). 

^Y.B.  20  Ed.  IV.  Mich.  pi.  10  would  seem  to  negative  the  scienter  rule ;  cp. 
however,  Fitz.,  Ab.  Corone  pi.  311  cited  above  373  n.  i,  and  the  writ  in  the  Register 
f.  nob,  "  Canes  ad  mordendas  oves  consuetos  apud  B  scienter  retinuit  ;  "  but  it 
should  be  observed  that  the  Register  f.  ma  contains  a  precedent  of  a  writ  for  damage 
done  by  a  boar  in  which  scienter  is  also  alleged,  though  there  is  no  allegation,  as  in 
the  case  of  the  dog,  that  it  was  accustomed  to  bite  ;  it  would,  I  think,  be  dangerous 
to  use  these  phrases  in  the  writs  as  evidence  of  any  particular  principle  of  liability  ; 
for  the  later  developments  of  the  law  see  Bk.  iv  Pt.  II.  c.  5  §  6. 

4  H.L.R.  vii  443. 


382  CRIME  AND  TORT 

call  negligence,  and  him  who  trespassed  on  the  plaintiff's  land 
to  avoid  highway  attack.  The  phrases  non potuit  aliter  facere  ditid 
inevitable  necessity  served  as  leading  catchwords  for  many 
centuries ;  and  even  up  to  the  nineteenth  century  we  find  court 
and  counsel  constantly  interchanging  inevitable  accident  and 
absence  of  negligence  nnd  blame."  As  I  have  said  above,  we 
can  want  no  better  illustration  of  the  manner  in  which  the 
modern  doctrines  of  negligence  have  been  imposed  upon  a  set 
of  primitive  conceptions  which  did  not  know  such  doctrines  than 
the  comparison  between  the  title  of  the  doctrine  called  contribu- 
tory negligence  and  its  actual  meaning.  And  though  the  con- 
ception that  negligence  is  a  ground  of  liability  has  modified  our 
ideas  of  civil  liability  for  injuries  to  the  person/  the  old  concep- 
tions still  in  substance  remain  in  our  modern  law  as  to  liability 
for  acts  which  infringe  upon  another's  possession  or  right  to 
possess  land  or  chattels.  A  man  is  liable  if  by  his  act  he  in- 
fringes upon  or  damages  in  any  way  his  neighbour's  possession 
or  rights  to  possess.  We  can  no  doubt  explain  this  in  a  modern 
way  by  saying  that  every  man  ought  to  know  the  titles  to 
his  own  property,  or,  if  he  is  authorized  to  deal  with  another's 
property,  that  he  should  get  proof  of  that  other's  title  to  give  the 
authority  ;  and  that  he  is  negligent  if  he  does  not  possess  this 
knowledge  or  take  these  precautions.'^  But,  however,  we  explain 
it,  the  fact  remains  that  our  modern  law  on  this  point  is  in  sub- 
stantial agreement  with  the  conceptions  of  the  mediaeval  common 
law.  With  the  historical  reason  for  this  survival  of  mediaeval 
principles  I  shall  deal  later.^ 

Though  these  mediaeval  doctrines  as  to  civil  liability  may 
sometimes  have  operated  severely,  they  tended  to  a  diminu- 
tion in  severity  in  that  branch  of  the  law  which  deals  with 
the  liability  of  a  master  for  the  acts  of  his  servants.  We  have 
seen  that  in  early  law  the  master  was  absolutely  liable  for  the 
wrongful  acts  of  his  servants,  or  perhaps  we  should  rather  say 
his  slaves.^  We  have  seen,  too,  that  in  Bracton's  day  the  master 
escaped  from  criminal  liability,  unless  the  crime  had  been  com- 
mitted by  his  command  and  consent.^  All  through  this  period 
the  law  as  to  civil  liability  was  tending  to  follow  the  law  as  to 
criminal  liability.^  In  1292,  upon  an  allegation  being  made 
that  a  deed  had  been  taken  and  torn  up  by  the  bailiff  of  a  certain 
lady,  Berewicke,  C.J.,  said,  "  The  lady  committed  no  tort,  even 
if  her  bailiff  did  as  you  have  stated  ;  but  it  was  the  bailiff  who 
committed  the  tort ;  and  your  action  against  the  lady's  bailiff  is 

i  Stanley  v.  Powell  [1891]  i  Q.B.  86.  2  Holmes,  Common  Law  98. 

8  Bk.  iv  Pt.  II.  c.  5  §  6.  *  Vol.  ii.  47. 

^  Above  371  n.  9.  *  H.L.R.  vii  384. 


CIVIL  LIABILITY  383 

saved."  In  consequence  of  this  ruling  counsel  was  driven  to 
aver  that  the  taking  and  tearing  were  by  command  of  the  lady.^ 
Perhaps  the  process  was  helped  by  the  fact  that  the  action  of 
trespass,  the  chief  action  for  the  redress  of  civil  wrongs,  was  in 
its  origin  of  a  semi-criminal  nature.  But  the  law  of  civil  liability 
followed  the  law  of  criminal  liability  more  slowly.  We  find, 
especially  in  the  local  courts,  remembrances  of  old  rules  which 
made  the  master  liable  for  the  acts  of  his  mainpast,  or  the  father 
liable  for  the  acts  of  his  children.^  Even  when  these  old  rules 
were  forgotten  or  overruled  by  the  royal  courts,^  even  when  the 
independent  labourer  had  largely  supplanted  the  dependent 
villein,^  public  policy  prevented  the  test  of  command  and  con- 
sent from  being  applied  as  thoroughly  in  the  sphere  of  civil  as  in 
the  sphere  of  criminal  liability. 

We  get  a  statement  of  the  general  principle  in  a  clause  of 
the  Statute  of  the  Staple^  (i353))  which  was  intended  to  make 
the  common  law  rule  the  rule  for  the  merchants  resorting  to  the 
staple  towns,  except  in  so  far  as  it  was  contrary  to  mercantile 
custom.  "No  merchant,"  it  is  said,  ''or  other  person,  of  what 
condition  so  ever  he  be,  shall  lose  or  forfeit  his  goods  or 
merchandise  for  any  trespass  or  forfeiture  incurred  by  his  servant, 
unless  his  act  is  by  the  command  and  consent  of  his  master."^ 
The  reason  for  this  principle  was  really  the  prevailing  view  as 
to  the  ground  of  civil  liability.  "  It  would  be  against  all  reason," 
said  counsel  in  Henry  IV.'s  reign,'^  '*  to  impute  blame  or  default 
to  a  man,  where  he  has  none  in  him,  for  the  carelessness  of  his 
servants  cannot  be  said  to  be  his  act."  In  strict  accordance 
with  this  conception  Martin,  J.,  in  Henry  VI. 's  reign,  explained 
the  manner  in  which  the  master  might  incur  liability,  and  the 

lY.B.  20,  21  Ed.  I.  (R.S.)  64. 

2  The  Court  Baron  (S.S.)  case  13,  a  father  is  made  liable  for  his  son's  theft  of 
apples  from  the  lord's  garden  because  he  is  his  mainpast ;  see  also  case  34  and  p.  127  ; 
and  this  liabihty  seems  to  have  been  enforced  in  the  Eyre  of  Kent  of  1313-1314,  the 
Eyre  of  Kent  (S.S.)  i  67,  90,  95. 

3  Y.B.  30,  31  Ed.  I.  (R.S.)  202,  "A  poor  woman  complained  that  B  had  deforced 
her  by  frequent  distresses  and  had  taken  from  her  loos.  B. — Not  guilty.  The  Inquest 
said  that  the  woman's  son  whom  she  was  bringing  up  at  home  had  committed  damage 
in  B's  wood,  and  that  B  came  and  took  2s.  from  the  woman.  Berewick,  J. — And 
inasmuch  as  he  did  wrong  to  distrain  the  woman  on  account  of  her  mainpast  the 
court  adjudges  that  she  do  recover  her  2s.  and  her  damages  of  6d. ;  and  that  B  be  in 
mercy." 

^  The  Court  Baron  (S.S.)  case  36  note,  a  defendant  denies  that  two  persons,  for 
whose  acts  he  was  sought  to  be  made  liable,  wfere  his  mainpast,  and  alleges  that  they 
were  hired  labourers. 

'  27  Edward  III.  st.  2  c.  19. 

^  We  shall  see,  below  387,  that  certain  provisoes  are  introduced  which  limit  the 
generality  of  the  principle  ;  but  the  principle  so  stated  is  obviously  the  rule,  and  the 
provisoes  are  in  the  nature  of  exceptions. 

'Y.B.  2  Hy.  IV.  Pasch.  pi.  5,  ''Hull. — Ceo  serra  encounter  tout  reason  de 
mitter  culpe  ou  default  en  un  home,  lou  il  n'ad  nul  en  luy,  car  negligence  de  ses 
servants  ne  poit  estre  dyt  son  fesauns." 


384  CRIME  AND  TORT 

extent  of  that  liability.^  Rolf,  arguendo^  had  said,  "  If  I  have 
a  servant  who  is  my  factor,  and  he  goes  to  a  fair  with  a  lame 
horse  or  other  defective  merchandise  and  sells  it,  shall  the  pur- 
chaser have  an  action  of  deceit  against  me  ?  Why,  no."  Martin 
replied,  "No,  not  if  you  did  not  command  the  sale  of  the  thing 
to  that  purchaser  or  to  any  one  in  particular;  but  if  your  servant 
by  your  consent  and  command  sells  any  one  bad  wine,  the 
purchaser  will  have  a  right  of  action  against  you,  for  it  is  then 
your  sale.  And  if  it  be  the  case  that  you  did  not  command  your 
servant  to  sell  to  such  person,  then  you  can  say  that  you  did 
not  sell  to  the  plaintiff."  "  It  would  be  dangerous  indeed  to 
leave  such  a  fine  distinction  in  matter  of  law  to  the  jury,"  was 
Rolfs  comment.  It  is  clear  from  this  statement  that  the  law 
was  very  far  from  having  reached  the  idea  that  a  servant  who 
does  wrong  while  acting  within  the  scope  of  his  authority  will 
render  his  master  liable.  He  will  only  render  his  master  liable 
if  he  does  that  very  thing  which  his  master  commanded  him  to 
do,  and  if  that  thing  is  a  wrongful  act.  It  is  only  if  the  act  of 
the  servant  is  the  act  of  the  master  that  the  master  can  be  held 
liable.  It  is  clear  from  this  that  a  master's  liability  on  his 
servant's  contracts  and  his  liability  on  his  servant's  wrongful  acts 
were  governed  by  the  same  principle.  It  was  really  a  question 
of  agency;  and  this  followed  from  the  prevailing  theory  of  the 
law  that  it  was  an  act  causing  damage  which  exposed  to  liability  ; 
for  unless  the  master  had  commanded  or  consented  to  the 
servant's  act  it  could  not  be  said  to  be  his  act.^ 

It  followed  from  this  that  if  the  servant  did  a  wrongful  act 
without  the  command  or  consent  of  his  master  the  servant 
alone  was  liable.  On  the  other  hand,  if  the  master  commanded 
the  servant  to  do  a  lawful  act,  and  damage  occurred  through 
the  subsequent  wrongful  act  of  the  master,  the  master  alone 
was  liable.  "Put  the  case,"  said  Rede,  J.,^  "that  the  master 
commands  the  servant  to  distrain,  and  he  does  so,  and  brings  the 

1  Y.B.  9  Hy.  VI.  Mich.  pi.  37.  It  was  held  that  where  an  agent  bought  corn 
and  left  a  bullock  with  the  vendor  on  the  terms  that  the  vendor  should  keep  the 
bullock  if  the  corn  was  not  paid  for,  and  the  corn  was  used  by  the  principal,  the 
principal  was  liable  if  he  took  the  bullock  from  the  vendor;  obviously  there  was  a 
ratification  of  the  agent's  act,  27  Ass.  pi.  5. 

2  The  Doctor  and  Student  Bk.  ii  c.  42  treats  the  liability  of  the  master  for  the 
servant's  wrongful  acts  and  his  liability  on  the  servant's  contracts  as  being  part  of 
the  same  subject,  and  as  being  substantially  dependent  on  the  same  principles  ;  com- 
pare, for  instance,  the  dicta  of  Martin,  J.,  cited  above,  and  the  following  extract  from 
this  chapter :  "  If  a  man  send  his  servant  to  a  fair  or  market  to  buy  for  him  certaine 
things,  though  he  command  him  not  to  buy  them  of  no  man  in  certaine,  and  the 
servant  doth  according,  the  master  shall  be  charged  ;  but  if  the  servant  in  that  case 
buy  them  in  his  owne  name,  not  speaking  of  his  Maister,  the  Maister  shall  not  be 
charged,  unless  the  things  bought  come  to  his  use," 

3  Y.B.  20  Hy.  VII.  Mich.  pi.  23  ;  cp.  S.C.  21  Hy.  VII.  Hil.  pi.  21. 


CIVIL  LIABILITY  385 

distress  to  his  master,  and  the  master  then  damages  the  property, 
is  there  any  reason  to  punish  the  servant?  Certainly  not.  And 
if  the  master  commands  the  servant  to  distrain,  and  the  servant 
does  so,  there  is  no  reason  why,  if  the  servant  damages  the 
property,  the  master  should  be  punished  for  a  command  the 
giving  of  which  was  lawful."  It  equally  followed  that  if  a  master 
gave  a  command  to  a  servant  to  do  an  unlawful  act,  and  the 
servant  obeyed  that  command,  both  the  master  and  the  servant 
were  liable.  "If,"  said  Yelverton,^  ''one  by  my  consent  and 
command  takes  the  goods  of  another  person,  or  beats  him,  the 
writ  is  maintainable  both  against  him  who  did  the  deed  and 
against  me." 

Such  were  the  general  principles  which  governed  the  liability 
of  masters  for  their  servants'  misdeeds.  They  were,  as  I  have 
said,  logical  deductions  from  the  prevailing  principles  as  to  civil 
liability.  But  there  were  certain  cases  in  which  a  greater 
extension  was  given  to  the  master's  liability  upon  grounds  of 
public  policy.  In  certain  cases  the  master  was  regarded  as  being 
under  a  legal  duty  to  avoid  certain  kinds  of  acts  which  were 
obviously  dangerous.  In  these  cases,  if  an  act  of  this  kind  were 
done,  either  by  the  master  or  by  his  servants  or  by  other  persons 
for  whom  he  was  regarded  as  being  responsible,  and  damage  was 
caused,  the  master  was  held  to  be  liable,  because  he  had  failed  in 
the  duty  which  the  law  had  placed  upon  him. 

(i)  One  of  the  most  important  of  these  cases  was  the  liability 
for  damage  by  fire.  The  law  imposed  a  duty  upon  all  house- 
holders to  keep  their  fires  from  damaging  their  neighbours. 
Hence  if  a  fire  arose  in  a  house  by  the  act  of  any  of  the  servants 
or  guests,  and  damage  was  caused  to  the  houses  of  others,  the 
owner  was  liable.  He  could  only  escape  from  liability  if  he  could 
show  that  the  fire  had  originated  from  the  act  of  a  stranger.^  (2) 
We  have  seen  that  mediaeval  society  was  regarded  as  divided  into 
very  distinct  orders  of  men,  each  to  a  certain  extent  bound  by  the 
particular  rules  which  applied  to  that  particular  order — each 
holding  a  particular  "status"  regulated  by  law.^  Persons  like 
innkeepers  or  common  carriers,  and  perhaps  persons  like  smiths 
or  surgeons,  were  considered  to  be  bound  by  their  calling  to  show 
a  certain  degree  of  skill  in  their  respective  callings.     If  they  did 

'  Y.B.  21  Hy.  VI.  Pasch.  pi.  6. 

2Y.B.  2  Hy.  IV.  Pasch.  pi.  6,  "Si  mon  servant  ou  mon  hosteller  mette  un 
chandel  en  un  pariet,  et  le  chandel  eschiet  en  le  straw,  et  arde  ma  meason  et  le 
meason  de  mon  vicine  auxi,  en  cest  cas  jeo  respondra  al  mon  vicine  de  damage  que 
il  ad,  quod  concedehatur  per  curiam.  .  .  Mes  si  home  de  hors  ma  meason  encounter 
ma  volunte  boute  la  fewe  en  le  straw  de  ma  meason  .  .  .  de  ceo  jeo  ne  serra  pas 
tenus  de  responder  a  eux ;  "  for  the  later  history  of  this  rule  see  Bk,  iv  Pt.  II.  c.  3  §  6. 

3  Vol.  ii  464-465. 
VOL.   III.— 25 


386  CRIME  AND  TORT 

not  show  this  degree  of  skill  they  were  liable  to  an  action  of 
trespass  on  the  case  for  negligence.^  Similarly  persons  like 
taverners,  vintners,  or  butchers,  whose  business  it  was  to  sell  food, 
were  liable  to  an  action  of  deceit  on  the  case  if  they  sold  unwhole- 
some food,  whether  or  not  they  had  made  representations  as  to 
the  quality  of  the  food.^  The  ground  for  allowing  an  action  in 
tort  in  both  these  classes  of  cases  was  at  bottom  public  policy. 
It  was  for  the  interest  of  the  community — then  as  now — that 
persons  who  professed  a  partxular  calling  should  show  an 
adequate  amount  of  care,  skill,  and  honesty  in  following  their 
calling.  They  could,  therefore,  be  sued  in  tort  if  they  did  not  come 
up  to  the  standard  imposed  by  the  law.^  Clearly  this  liability 
would  not  have  been  an  adequate  safeguard  to  the  public  unless 
the  persons  professing  such  skill  had  been  made  liable,  not  only 
for  the  acts  done  by  themselves,  but  also  for  the  acts  done  by 
their  servants  in  the  pursuit  of  their  several  callings.  Therefore 
in  these  cases  this  extended  liability  was  imposed.*  (3)  We  shall 
see  that  if  a  person  undertook  to  do  work  for  another,  and  did  it 
badly,  so  that  the  other  person  was  damaged,  an  action  lay;  ^  and 
that  action  lay  whether  the  work  had  been  actually  done  by  the 
person  who  had  undertaken  or  his  servant.  Indeed,  it  might  well 
be  that  the  master  was  liable  and  the  servant  was  not,  for  the 
ground  of  the  master's  liability  was  his  undertaking  and  the 
damage  which  resulted  from  its  non-fulfilment.     The  servant  who 

1  Y.B.  II  Hy.  IV.  Hil.  pi.  18  Thirning  said,  "  Coment  que  un  home  que  n'est 
my  commen  hostler,  moy  herberge  en  son  hostel,  il  ne  respondra  pas  de  mes  biens, 
quod  fuit  concessJim ; ''  Y.B.  19  Hy.  VI.  Hil.  pi.  5  Paston,  J.,  said  to  Markham, 
♦'  Vous  n'avez  mettre  que  il  est  un  common  mareschal  a  curer  tiel  cheval ;  en  quel 
cas,  mesque  il  tua  votre  cheval  per  ses  medicines,  urcore  vous  n'aurez  accion  vers 
luy  sans  assumption ;  "  cp.  the  Register  f.  104,  "  Cum  secundum  legem  et  con- 
suetudinem  regni  nostri  Angliae  hospitatores  qui  hospitia  communia  teneiit  ad 
hospitandum,  etc.  .  .  .  teneantur." 

2  Y.B.  9  Hy.  VI.  Mich.  pi.  37,  ^*  Babington. — Si  jeo  vien  en  une  taverne  a 
manger,  et  il  don  ou  vend  a  moy  bier  ou  chair  corrupt,  pur  le  quel  jeo  suis  mis  en 
grand  infirmite,  j'aurai  action  en  vers  luy  sur  mon  cas  clerement ;  et  uncore  il  ne 
fist  garrante  a  moy.  Godred. — Fuit  adjudge  or  tard  en  Bank  le  Roy  que  un  vendist 
un  piece  de  panno  laneo  sciens  ipsam  raticam  et  nemy  bien  fulle,  et  ceo  fuit  adjudge 
bon  sans  garrante.     Et  puis  Weston  dit  que  le  bref  fuit  warrant.     Et  sic  fuit." 

^Holmes,  Common  Law  184.  Such  persons  are  sometimes  said  to  be  liable  by 
the  "common  custom  of  the  realm,"  above  n.  i ;  as  Holmes  says  op.  cit.  188,  "The 
allegation  did  not  so  much  imply  the  existence  of  a  special  principle  as  state  a 
proposition  of  law  in  the  form  which  was  then  usual ; "  this  is  stated  in  so  many 
words  in  Y.B.  2  Hy.  IV.  Pasch.  pi,  5,  "  Hornby. — Judgment  de  count,  car  il  ad  count, 
d'un  common  custom  del  realme,  et  n'ad  my  dist  que  cest  custome  ad  estre  use.  A 
que  tota  curia  dit  passez  ouster  car  comen  ley  de  cest  realme  est  comen  custome  de 
realme." 

^  Y.BB.  II  Hy.  IV.  Hil.  pi.  18  ;  9  Hy.  VI.  Mich.  pi.  37 ;  19  Hy.  VI.  Hil.  pi.  5 
cited  above  n.  i  ;  Doctor  and  Student,  Bk.  ii  c.  42,  "  If  a  man  desire  to  lodge  with 
one  that  is  no  common  hosteler,  and  one  that  is  servant  to  him  that  he  lodgeth  with, 
robbeth  his  chamber,  his  master  shall  not  be  charged  for  that  robbing ;  but  if  he  had 
been  a  common  hosteler  he  should  have  been  charged," 

^  Below  429-431. 


CIVIL  LIABILITY  387 

had  made  no  such  undertaking  was  not  liable.  As  Choke,  J., 
put  it,^  "  If  a  man  undertakes  to  cure  me  of  a  certain  disease,  and 
he  gives  me  medicine  which  makes  me  worse,  I  shall  have  action 
on  my  case  against  him  ;  but  if  he  thus  undertakes  and  then 
commands  his  servant  to  administer  the  medicine,  and  the  servant 
does  so  and  I  am  made  worse,  I  have  no  action  against  the  servant 
but  against  the  master."  (4)  By  statute  in  certain  cases  bailiffs, 
sheriffs,  and  others  were  made  liable  for  all  the  misdeeds  of  their 
servants  in  or  about  the  duties  pertaining  to  their  office.^  (5) 
The  clause  of  the  Statute  of  the  Staple^  which,  as  we  have  seen,* 
states  the  general  principle  applicable  to  the  master's  liability  for 
the  torts  of  his  servant,  indicates  that  that  principle  was  sometimes 
modified  by  mercantile  custom.  The  master  may  be  liable  if  the 
servant  has  ''misbehaved  in  the  office  in  which  he  has  been 
placed  by  his  master,"  or  if  "his  master  is  otherwise  bound  to 
answer  for  the  act  of  his  servant  by  the  Law  Merchant,  as  has 
been  heretofore  customary." 

At  the  end  of  the  seventeenth  century  some  of  the  ideas  con- 
tained in  some  of  these  exceptions  to  the  general  principle 
governing  the  master's  liability  for  the  torts  of  his  servants  will 
help  the  common  law  to  the  attainment  of  another  view  as  to 
the  extent  of  that  liability.  But  we  shall  see  that  this  new  view 
was  not  merely  a  developoient  from  these  exceptions.  It  was  a 
new  departure  necessitated  by  the  growth  of  England's  industry 
and  commerce,  and  by,  the  fact  that  the  victory  of  the  common 
law  courts  over  the  court  of  Admiralty  had  added  the  new  field 
of  mercantile  jurisdiction  to  the  common  law.  Naturally,  there- 
fore, its  origin,  like  the  origin  of  other  doctrines  of  mercantile 
law  which  were  then  appearing  in  the  common  law  courts,  owed 
something  to  those  rules  applied  in  the  court  of  Admiralty, 
which  the  common  law  courts  took  over  when  they  absorbed 
the  mercantile  jurisdiction  formerly  exercised  by  that  court* 

In  conclusion  it  should  be  noted  that  these  mediaeval  princi- 
ples of  civil  liability  have  in  England  an  importance  beyond 
that  which  they  possess  as  a  branch  of  private  law.  They  were 
in  the  future  destined  to  leave  deep  marks  upon  that  part  of  our 
constitutional  law  which  determines  the  relation  of  the  crown 
and  its  servants  to  the  public.      In  fact,  some  of  the  best  weapons 

1  Y.B.  II  Ed.  IV.  Trin.  pi.  lo  ;  cp.  Ames,  Lectures  on  Legal  History  132,  and 
Bl.  Comm.  i  418  there  cited. 

2  14  Edward  III.  st.  i  c.  g  ;  25  Edward  IIL  st.  5  c.  21  §  6 ;  2  Henry  VL  c.  10 ; 
23  Henry  VL  c.  i ;  Doctor  and  Student  Bk.  ii  c.  42 ;  Lord  North's  Case  (1558) 
Dyer  i6ia ;  Plummer  v.  Whitchcroft  (1676)  2  Lev.  158. 

'^  27  Edward  III.  st.  2  c.  19. 

4  Above  383.  ^  Bk.  iv  Pt.  IL  c.  5  §  6. 


388  CRIME  AND  TORT 

in  the  arsenal  of  the  parliamentary  lawyers  of  the  seventeenth 
century  were  deductions  from  them;  and  the  victory  of  the 
Parliament,  by  establishing  the  supremacy  of  the  common  law, 
gave  these  principles  a  great  place  in  English  public  law.  Thus 
the  rules  explained  by  Kingsmill,  J.,^  as  to  the  circumstances 
under  which  an  interference  with  another's  property  was  justifi- 
able were  the  bases  of  Holborne's  argument  in  the  Case  of  Ship 
Money  ;  ^  and  at  the  present  day  they  are  the  basis  upon  which 
the  powers  of  the  crown  and  its  subjects  and  servants  to  deal 
with  riot  or  rebellion  or  invasion — sometimes  miscalled  martial 
law — rest.^  Similarly,  it  is  these  mediaeval  rules  as  to  the 
liability  of  masters  and  servants  for  wrongful  acts  which  are  the 
basis  of  the  present  law  which  determines  the  liability  of  the 
servants  of  the  crown  to  the  public  for  their  wrongful  acts. 
The  king  is  a  master  who  is  in  a  peculiar  position  because  he 
cannot  be  sued.^  But  this  peculiar  position,  the  lawyers  of  the 
fifteenth  century  held,  limited  his  powers  to  act  because,  if  the 
law  was  otherwise  the  subject  would  be  deprived  of  all  remedy 
for  his  unlawful  acts.^  He  must  act  through  a  servant,  and  all 
servants  of  the  crown  are  liable  if  they  do  or  command  others 
to  do  illegal  acts.  But,  however  exalted  their  position,  they  are 
but  servants  ;  and,  since  it  has  been  held  to  be  impossible  to  ex- 
tend the  modern  principle  of  employer's  liability  to  their  em- 
ployer, the  crown,  their  liability  still  depends  upon  the  principles 
of  the  mediaeval  common  law  ^ — a  result  which  sometimes  makes 
for  serious  injustice  in  these  days  of  constantly  increasing  state 
activity.'^ 

§  9.  Lines  of  Future  Development 

From  the  earliest  times  the  royal  judges  had  assumed  juris- 
diction to  enforce  the  public  duties  of  citizens,  and  the  regular 
performance  of  the  various  functions  both  of  the  communities  of 
the  land,  and  of  subordinate  courts  and  officials. 

The  law  made  it  the  duty  of  every  citizen  to  disclose  any 
treason  or  felony  of  which  he  had  knowledge,  and  a  person  who 

1  Above  377.  '  (1637)  3  S.T.  at  975. 

3  Vol.  i  578. 

^  For  this  rule  and  the  later  deduction  from  it  that  the  king  can  do  no  wrong, 
see  below  465-466. 

^Y.B.  I  Hen.  VII.  Mich.  pi.  5,  "  Hussey,  Chief  Justice,  disoit  que  Sir  jfohn 
Markham  disoit  au  Roy  Ed.  le  4  qu'il  ne  poit  arrester  un  home  sur  suspeceon  de 
treason  ou  felon,  sicome  ascuns  de  ses  lieges  puissent,  parce  que  sHl  face  tort,  le 
party  ne  poit  aver  accion." 

^  Lane  v.  Cotton  (1701)  i  Ld.  Raym.  646 ;  Mersey  Docks  Trustees  v.  Gibbs 
(1866)  L.R.  I  H.  of  L.  93,  124  per  Lord  Wensleydale ;  Raleigh  v.  Goschen  [1898] 
I  Ch.  73;  Bainbridge  v.  Postmaster-General  [1906]  i  K.B,  178. 

7  For  the  modern  history  of  this  branch  of  the  law  see  Bk.  iv  Pt.  II.  c.  6  §  i. 


LINES  OF  FUTURE  DEVELOPMENT    389 

did  not  fulfil  this  duty  was  guilty  of  a  "  misprision"  of  treason 
or  felony.^  It  was  likewise  the  duty  of  every  citizen,  if  called 
upon,  to  help  to  arrest  a  felon ^  or  to  serve  on  a  jury;  and 
criminal  proceedings  could  be  taken  against  those  who  neglected 
these  duties,  or  against  those  who  performed  them  badly.^ 
There  was  a  curious  case  in  1330  in  which  Edward  III.  took 
proceedings  against  the  Bishop  of  Winchester  for  neglecting  his 
duty  by  departing  from  the  Parliament  before  it  was  ended.* 
It  would  seem  that  the  king  regarded  such  a  neglect  of  duty  as 
a  species  of  contempt  And  he  sometimes  used  this  procedure 
to  enforce  not  only  public  duties,  but  also  his  private  rights;  for, 
as  little  distinction  was  drawn  at  this  period  between  the  king's 
capacities,^  little  distinction  could  be  drawn  between  his  various 
powers  and  rights.  Thus  in  1371  he  took  proceedings  against 
the  abbot  of  St.  Oswald  for  disobedience  to  his  command  to 
assign  a  corrody  to  a  certain  person,  which  he  asserted  and  the 
abbot  denied  was  in  his  gift.*^ 

In  the  thirteenth  century  the  control  of  the  courts  over  the 
misdeeds  of  subordinate  courts  and  officials  was  strict.  We  have 
seen  that  a  large  part  of  the  business  of  the  Eyre  consisted  of  an 
examination  of  the  mode  in  which  they  had  fulfilled  their  duties. '^ 
But  the  general  Eyre  ceased  to  be  held,  the  local  government  of 
the  country  gradually  passed  for  the  most  part  into  the  hands  of 
the  justices  of  the  peace,^  and  the  law  came  to  rely  rather  upon 
the  action  of  the  injured  individual  than  upon  the  action  of  the 
central  government.^  In  fact,  as  the  old  communal  organization 
of  the  local  government  decayed,  the  direct  control  of  the  courts 
grew  weaker.  The  offences  for  which  these  old  communities  of 
the  land  and  their  officials  were  punishable  tended  to  become 
obsolete  with  the  changes  in  the  form  of  government  involved  in 

^  Staunford,  P.C.  i  c.  39  ;  Coke,  Third  Instit.  139.  In  earlier  days,  when  the 
offence  of  treason  was  ill-defined,  above  289-291,  it  would  seem  that  the  conceal- 
ment of  treason  ranked  as  treason,  Bracton  f.  ii8b;  Coke,  Third  Instit.  36,  Hale, 
P.C.  i  372  ;  no  doubt  the  definition  of  treason  effected  by  Edward  III.'s  statute 
helped  to  differentiate  treason  from  misprision  of  treason,  though  it  was  not  clearly 
differentiated  till  later,  Bk.  iv  Ft.  II.  c.  5  §  i  ;  and  in  Coke's  day  an  element  of 
confusion  had  arisen  in  that  the  term  "  misprision  "  had  got  an  extended  meaning  ; 
to  use  Coke's  words,  it  was  not  merely  a  crimen  omissionis,  consisting  in  the  con- 
cealment of  treason  or  felony,  it  was  also  crimen  commissionis,  "  as  in  committing 
some  heinous  offence  under  the  degree  of  felony;"  in  this  latter  sense  it  was  a 
vague  offence  which  covered  many  various  contempts. 

2Fitz.,  Ab.  Corone  pi.  395  (8  Ed.  II.);  the  Eyre  of  Kent  (S.S.)  i  152-153;  but 
persons  under  age  and  "not  sworn  to  the  law"  were  excused,  the  Eyre  of  Kent 
loc.  cit. 

^Fitz.,  Ab.  Corone  pi.  207 — a  juror  arraigned  for  discovering  the  king's  counsel ; 
cp.  ibid  pi.  272. 

4  Ibid  pi.  i6i=Y.B.  3  Ed.  III.  Pasch.  pi.  32. 

5  Below  463-468. 

«  Y.B.  44  Ed.  III.  Trin.  pi.  33.  '  Vol.  i  269-271. 

8  Ibid  285-292.  ^  Above  317-318. 


390  CRIME  AND  TORT 

the  rise  of  the  justices  of  the  peace.  The  courts  were  hampered 
with  much  old  learning  relating  to  the  older  system.  Not  hav- 
ing as  yet  realized  the  new  conditions,  they  had  not  yet  es- 
tablished that  firm  control  over  the  new  authorities  which  the 
justices  in  eyre  had  been  accustomed  to  exercise  over  the  old 
authorities.  Consequently  the  control  of  the  common  law  over 
the  local  government  of  the  country  was  never  weaker  than  it 
was  at  the  close  of  this  period.  It  was  not  till  the  strong  govern- 
ment of  the  Tudors  had  again  accustomed  the  country  to  an 
active  executive  that  the  common  law,  either  in  alliance  or  in 
competition  with  the  council,  regained  this  control.  The  old 
learning  was  then  made  to  supply  precedents  for  the  exercise  of 
that  control  whenever  the  central  government  was  strong  or 
active  enough  to  set  the  law  in  motion.  The  lawyers  remembered 
some  of  these  old  precedents  when  they  wished  to  amplify  their 
jurisdiction  in  order  to  compete  with  rival  courts.  Thus  Coke 
used  the  two  cases  of  Adam  de  Ravensworth  and  John  de 
Northampton  to  prove  that  libel  was  a  common  law  offence.^ 
The  case  of  Adam  de  Ravensworth  was  probably  a  case  of 
scandalum  magnatum,^  which,  as  we  shall  see,  was  specially  pro- 
vided for  by  statute.^  John  de  Northampton  was  an  attorney 
of  the  King's  Bench  who  had  written  a  letter  which  libelled  the 
judges  and  clerks  of  the  court  ;^  and  he  was  probably  dealt  with 
by  the  court  by  virtue  of  its  power  to  punish  contempts  com- 
mitted by  its  officers.^  The  cases  obviously  do  not  bear  out  the 
broad  proposition  for  which  they  were  cited.  But,  Coke  wished 
to  show  that  the  King's  Bench  had  as  wide  a  jurisdiction  in 
cases  of  libel  as  the  court  of  Star  Chamber  ;  and  they  were  the 
only  likely  cases  which  he  could  find.** 

One  subject  upon  which  the  criminal  law  of  this  period 
was  full  and  ample  was  the  subject  of  offences  against  the 
machinery  of  justice.  These  fall  under  three  main  heads : 
Firstly,  offences  which  are  in  the  nature  of  a  contempt  of  the 
court  and  its  process ;  secondly,  offences  which  aim  at  the  per- 
version of  the  machinery  of  justice  ;  and  thirdly,  offences  which 

1  Third  Instit.  174. 

2"  Adam  de  Ravensworth  was  indicted  in  the  King's  Bench  for  the  making  of 
a  Hbel  in  writing,  in  the  French  tongue,  against  Richard  of  Snowshall,  calHng  him 
therein  Roy  de  Ravenors,  etc.,"  ibid. 

2  Below  409. 

^He  wrote  to  John  Ferrers,  one  of  the  king's  Council,  "that  neither  Sir 
William  Scot,  Chief  Justice,  nor  his  fellows  the  king's  justices,  nor  their  clerks,  any 
great  thing  would  do  by  the  commandment  of  our  Lord  the  King,  nor  of  Queen 
Philip,  in  that  place,  more  than  of  any  other  of  the  realm,"  Third  Instit.  174. 

^  Below  392. 

« "  The  mention  as  notable  of  these  two  cases  which  seem  in  no  other  way 
notable,  looks  as  if  they  were  the  only  cases  of  libel  which  Coke  had  met  with  in 
his  study  of  the  records,"  Stephen,  H.C.L.  ii  302. 


LINES  OF  FUTURE  DEVELOPMENT    391 

originally  fell  under  the  last-mentioned  head,  but  which  were 
later  generalized,  and,  as  so  generalized,  added  important 
chapters  to  the  law  of  crime  and  tort.  This  classification  is 
beginning  to  emerge  in  the  sixteenth  century.  It  is  hardly 
apparent  in  the  Middle  Ages.  But,  if  we  look  at  some  of  the 
very  miscellaneous  and  somewhat  amorphous  mediaeval  rules 
upon  these  topics,  we  can  see  the  germs  of  the  later  classifica- 
tion. I  shall  therefore  deal  with  these  rules  under  these  three 
heads  ;  and  under  each  head,  I  shall  indicate  the  manner  in 
which  they  developed  in  later  law.  We  shall  thus  be  able  to 
perceive  the  origins  of  certain  bodies  of  law,  the  development  of 
which  will  be  related  in  the  succeeding  Book  of  this  History. 

(i)  Offences  which  are  in  the  nature  of  a  contempt  of  the  court 
and  its  process} 

Disobedience  to  the  king's  writ  was  a  contempt  of  the 
king;  and  from  an  early  period  the  offender  could  be  attached 
summarily.^  When  in  prison  he  would  be  allowed  after  an 
interval  to  purge  his  contempt  by  making  fine  with  the  king. 
The  fine  thus  settled  between  the  judges  and  the  offender  was 
a  "  bilateral  transaction — a  bargain.  It  is  not  '  imposed,'  it 
is  'made'."^  This  process  of  making  fine  with  the  king  was 
being  extensively  used  by  the  judges  in  Henry  III.'s  reign  ;  * 
and  it  naturally  superseded  the  older  amercements  imposed 
by  the  courts  for  many  sundry  irregularities  committed  by 
officers  of  the  courts  and  others,  which  were  affeered  by  the 
suitors  of  the  court. ^ 

This  power  to  imprison  and  fine  those  guilty  of  contempt 
seems  to  have  been  originally  used,  firstly,  to  punish  direct 
disobedience  to  the  process  of  the  court,  and  secondly,  to 
punish  all  kinds  of  irregularities  and  misfeasances  of  officials 
of  the  court.  That  direct  disobedience  to  the  process  of  the 
court  could  be  punished  by  attachment  has  never  been  doubted.* 
It    would   seem,    for   instance,  that    disobedience   to  a  writ  of 

^  The  lest  historical  account  of  this  matter,  on  which  my  summary  is  mainly 
based,  is  to  be  found  in  two  articles  by  Mr.  C.  J.  Fox  on  *'  The  King  v.  Almon," 
L.Q.R.  xxiv  184,  266  ;  and  two  articles  by  the  same  author  on  "  Summary  Process 
to  Punish  Contempt,"  L.Q.R.  xxv  238,  354. 

2  L.Q.R.  xxv  238 ;  xxiv  194-195 ;  it  is  pointed  out,  L.Q.R.  xxv  252  n.  a, 
that  in  the  Prohibition  upon  the  articles  of  the  clergy,  printed  among  the 
statutes  of  uncertain  date.  Statutes  (R.C.)  i  209,  attachments  vi  laica  are  said 
to  pertain  to  the  crown  ;  attachment  was  not  granted  as  a  civil  process  till  the 
end  of  the  seventeenth  century,  L.Q.R.  xxv  252-253  n.  a. 

3  P.  and  M.  ii  516. 

4  Ibid. 

^ L.Q.R.  xxv  240-242;   see  Y.B.   7  Hy.   VL   Mich.   pi.  17  per  Cottesmore; 
Griesley's  Case  (1588)  8  Co.  Rep.  at  f.  38b. 
^  Above  n.  2. 


I 


392  CRIME  AND  TORT 

prohibition  was  from  the  first  punished  by  attachment ;  ^  and 
the  power  thus  to  attach  those  who  disobeyed  the  king's  com- 
mands was  extended  by  statute — it  was,  for  instance,  given 
to  sheriffs  by  a  clause  of  the  Statute  of  Westminster  11.^ 
Probably  also  the  court  had  power  from  an  early  date  to  deal 
thus  with  its  officers  who  were  guilty  of  irregularities  or  con- 
tempts.^ It  is  clear  that  this  jurisdiction  was  well  established 
in  the  fourteenth  and  fifteenth  centuries.  Thus,  jurors  were 
frequently  fined  for  eating  and  drinking  before  giving  their 
verdict.  An  undersheriff  was  attached  because  his  servant 
allowed  the  jury  to  go  at  large.  A  juror  who  failed  to  appear 
could  be  amerced.  An  attorney  guilty  of  sharp  practice  or 
other  misconduct  could  be  imprisoned.*  Probably  John  of 
Northampton — an  attorney  of  the  King's  Bench  who,  as  we 
have  seen,^  was  punished  for  writing  a  letter  which  was  ad- 
judged to  be  in  scandalum  Justiciae  et  Curise — was  thus  dealt 
with  because  he  was  an  officer  of  the  court.  And  this  power 
of  dealing  summarily  with  attornies  and  of  striking  them  ofif 
the  rolls  was  enlarged  by  a  statute  of  1403.^ 

In  these  two  classes  of  cases,  then,  the  courts  could  attach 
and  summarily  punish  an  offender  by  imprisoning  him,  and 
subsequently  releasing  him  on  payment  of  a  fine.  It  would 
seem  too,  that,  as  early  as  Edward  III.'s  reign,  they  had 
power  thus  to  deal  with  contempts  committed  by  other  persons 
in  their  actual  presence ; ''  and  this,  as  Littleton  and  Selden 
explained  in  1627,^  could  be  justified  by  the  theory  that  "  the 
offence  being  done  in  the  face  of  the  court,  the  very  view  of 
the  court  is  a  conviction  in  law."  But  all  through  the  medi- 
aeval period,  and  long  afterwards,  the  courts,  though  they 
might  attach  persons  who  were  guilty  of  contempts  of  court, 
could  not  punish  them  summarily.  Unless  they  confessed 
their  guilt,  they  must  be  regularly  indicted  and  convicted. 
Mr.  Fox  has  given  a  list  of  forty  cases  of  various  contempts — 

iBracton  ff.  410,  411;  cp.  Y.B.  22  Ed.  IV.  Mich.  pi.  g — attachment  against 
the  Ordinary  of  St.  Albans  for  disobedience  to  a  writ  ordering  him  to  absolve 
an  excommunicate. 

2  13  Edward  I.  st.  i  c.  39  §  23  ;  Gilbert,  C.J.,  in  his  history  of  the  Common 
Pleas  suggested  that  this  statute  was  the  origin  of  the  power  to  commit,  but 
this  view  was  not  taken  by  Wilmot,  J.,  in  The  King  v.  Almon,  nor  by  Blackstone, 
L.Q.R.  xxiv  192-193. 

3  See  Y.B.  3,  4  Ed.  II.  (S.S.)  195  where  Stanton,  J.,  thus  addressed  an  at- 
torney :  "  Because  you  to  delay  the  woman  from  her  dower  have  vouched  and 
have  not  sued  a  writ  to  summon  your  warrantor,  this  Court  awards  that  you  go 
to  prison." 

*  See  the  authorities  cited  by  Mr.  Fox,  L.Q.R.  xxv  245. 

"  Above  390.  ^  4  Henry  IV.  c.  i8. 

7  Y.B.  17  Ed.  III.  (R.S.)  276,  cited  L.Q.R.  xxv  253  n./. 

8  Stroud's  Cas3  (1629)  3  S.T.  at  p.  267. 


LINES  OF  FUTURE  DEVELOPMENT     393 

insults  to  the  judges,  an  assault  on  the  attorney  general, 
beating  jurors,  striking  a  witness,  trampling  on  a  writ  of 
prohibition — in  all  of  which  the  offender  was  tried  by  the 
ordinary  course  of  law.^  That  this  was  the  correct  course  to 
pursue  was  stated  by  Anderson,  C.J.,  in  1599;^  and  in  the 
famous  case  of  the  convicted  prisoner  who,  at  the  Salisbury 
assizes  in  1631,  *' Ject  un  brickbat  a  le  dit  justice  que  narrowly 
mist,"  an  indictment  was  immediately  drawn  by  Noy,  and 
his  hand  was  cut  off  and  fixed  to  the  gibbet  on  which  he  was 
immediately  after  hanged.^ 

Two  connected  developments  mark  the  later  history  of 
this  branch  of  the  law.  (i)  The  Council  and  later  the  Star 
Chamber  had  long  possessed  a  jurisdiction  over  contempts 
committed  against  any  court  ;^  and  the  common  law  courts 
had  from  an  early  period  sometimes  referred  such  cases  to 
them.^  After  the  abolition  of  the  Star  Chamber  and  the 
jurisdiction  of  the  Council  in  England  in  1 641  the  King's 
Bench  assumed  this  jurisdiction.^  It  was  then  able  the  more 
easily  to  do  so  because  it  could  be  represented  as  a  supplement 
to  and  a  corollary  of  its  powers  to  correct  **  misdemeanours 
extra-judicial  "  ^  committed  by  or  occurring  in  all  inferior  courts  ; 
and  as  a  consequence  of  the  fact  that  it  had  inherited  from 
the  Star  Chamber  the  position  of  custos  morum  ^  of  all  the 
subjects  of  the  realm.  And  these  are  the  bases  on  which 
this  jurisdiction  is  now  rested.^  (ii)  Simultaneously  with  this 
development  we  can  see  the  gradual  enlargement  of  the  powers 
of  the  court  to  convict  and  punish  summarily  without  having 
recourse  to  an  indictment  and  the  verdict  of  a  jury.  This 
development  was  partly  due  to  statutes  which  gave  the  courts 
in  certain  cases  power  to  inflict  punishment  after  examination 
without  a  trial  by  jury,^^  and  partly — perhaps  mainly — to  the 
example  of  the  Council  and  later  of  the  Star  Chamber.  The 
Council  and  Star  Chamber  proceeded  by  the   examination  of 

1  L.Q.R.  XXV  242-244. 

2 "  A  man  may  be  imprisoned  for  a  contempt  done  in  court  but  not  for  a 
contempt  out  of  court,"  Dean's  Case  (1599)  Cro.  Eliza  at  p.  690,  cited  L.Q.R, 
XXV  246;  it  may  be  noted  that  Hale  laid  it  down,  P.C.  i  587,  that  "if  an  affray 
be  made  in  the  presence  of  a  justice  of  peace  ...  he  may  arrest  him,  and  de- 
tain him  ex  officio  till  he  can  make  a  warrant  and  send  him  to  gaol." 

3  Dyer  i88b  note. 

'*  L.Q.R.  xxiv  272-273  ;  Hudson,  Star  Chamber  117. 

^For  the  earlier  cases  see  L.Q.R.  xxv.  354-355;  for  later  cases  see  L.Q.R. 
xxiv  272-273. 

^  L.Q.R.  xxiv  273-274.  "^  Coke,  Fourth  Instit.  71 ;  vol.  i  212. 

8  Hawkins,  P.C.  Bk.  ii.  C  3  §  4. 

^  R.  V.  Davies  [1906]  i  K.B.  32;  R.  v.  Daily  Mail  [1921]  2  K.B.  733. 

^0  A  long  list  of  these  statutes  stretching  from  5  Henry  IV.  c.  8  to  3  James  I. 
c.  13  is  given  by  Mr.  Fox  in  L.Q.R.  xxv  358-362. 


394  CRIME  AND  TORT 

the  accused  and  without  a  jury.  And,  as  the  relations  between 
the  comnion  law  judges  and  the  Star  Chamber  were  intimate, 
it  is  not  improbable  that  the  procedure  of  the  latter  court 
had  some  influence  on  the  evolution  of  the  common  law  doctrine 
on  these  matters.^  Thus,  even  at  the  beginning  of  the  seven- 
teenth century,  the  judges  were  taking  upon  themselves  to 
punish  summarily  offences  which  in  the  Middle  Ages  would 
have  been  remedied  by  an  indictment^  or  a  bill  of  deceit.^ 
It  is  not,  however,  till  after  the  abolition  of  the  Star  Chamber 
in  1 64 1  that  the  great  expansion  of  their  jurisdiction  to  deal 
summarily  with  all  manner  of  contempts  takes  place.  In  the 
middle  of  the  seventeenth  century  they  were  exercising  this 
jurisdiction  in  the  case  of  contempts  committed  out  of  court.^ 
Occasionally  indeed  earlier  sixteenth  and  seventeenth  precedents 
were  followed,  and  a  procedure  by  way  of  information  and 
trial  by  jury  was  used ;  ^  but  informations  were  often  abused 
in  many  ways,  and  they  were  unpopular  ;  *'and  so  the  summary 
process  slipped  in  and  the  supposed  delinquents  were  deprived 
of  the  privilege  of  having  their  cases  tried  by  the  verdict  of 
even  one  jury."  ^  This  jurisdiction  reached  its  furthest  limit 
when  it  was  laid  down  in  Wilmot,  J.'s,  undelivered  judgment 
in  Tke  King  v.  Almon  (1765)  that  a  libel  on  the  court,  or  a 
judge  in  his  judicial  capacity,  could  be  punished  summarily 
by  attachment — a  decision  for  which  there  was  little  if  any 
authority.^  But,  in  spite  of  this  fact,  it  was  accepted  as  correct, 
and  it  forms  the  basis  of  the  modern  law  on  this  subject.^ 

(2)  Offences  which  aim  at  the  pei'version  of  the  machinery  of 
justice. 

In  a  relatively  primitive  society  private  war  is  the  natural 
and  most  congenial  remedy  of  those  who  are  or  think  they  are 

^  As  Mr.  Fox  say-^,  L.Q.R.  xxv  356,  '*  When  it  is  remembered  that  some  of 
the  judges  were  members  of  this  committee  (the  Star  Chamber),  it  will  be  seen 
that  there  was  an  intimate  connexion  between  the  common  la\v  courts  and  the 
Star  Chamber,  and  that  the  procedure  of  the  latter  court  might  be  gradually 
introduced  into  the  practice  of  the  common  law  courts.  It  is  certain  that  the 
old  procedure  by  bill  for  contempt  followed  by  attachment,  whereby  the  (de- 
fendant was  brought  in  to  have  the  question  tried  by  a  jury,  was  in  course  of 
time  transformed  into  an  attachment  followed  by  an  examination  of  the  accused 
by  interrogatories,  whereby  he  might  be  acquitted  or  convicted  by  the  court." 

2  In  Bruistone  v.  Baker  {1616)  i  Rolle  315  Coke,  C.J.,  clearly  thought  that 
he  had  the  power  (though  he  refused  to  exercise  it  in  the  case  before  him)  of 
punishing  summarily  a  person  who  had  treated  the  process  of  the  court  with 
contempt ;  see  L.Q.R.  xxv  249. 

3  Lord  v.  Thornton  (1614)  2  Bulstr.  67 — a  person  aged  sixty-three  who 
pleaded  infancy  to  delay  the  proceedings  was  attached. 

^  L.Q.R.  xxv  366,  and  references  to  Style's  Practical  Register  there  cited  ; 
for  earlier  cases  of  Charles  I.'s  reign  see  ibid  369. 

5  Ibid  368.  8  Ibid  369. 

■^  Ibid  xxiv  184  seqq. ;  266  seqq. ;  the  judgment  is  reported  in  Wilmot's  Notes  243. 

^  See  the  modern  cases  cited,  L.Q.R.  xxv  238-240. 


LINES  OF  FUTURE  DEVELOPMENT    395 

wronged ;  and,  when  the  strength  of  the  law  makes  a  recourse  to 
this  expedient  dangerous  or  impossible,  when  those  who  are 
wronged  are  compelled  to  have  recourse  to  the  law,  much  of  the 
unscrupulousness  and  trickery  which  accompany  the  waging  of  a 
war  are  transferred  to  the  conduct  of  litigation.  The  courts  are 
beseiged  with  angry  litigants  who  fight  their  lawsuits  in  the  same 
spirit  as  they  would  have  fought  their  private  or  family  feuds. 
This,  as  we  have  seen,  is  a  phenomenon  which  recurs  in  many 
nations  at  many  periods :  ^  but  it  was  specially  apparent  in 
mediaeval  England.  The  victory  won  by  royal  justice  in  the 
thirteenth  century  was  somewhat  premature.  The  legal  and 
political  ideas  held  by  the  royal  judges  were  too  far  in  advance 
of  a  society  which  was  still  permeated  by  feudal  ideas  of  a  retro- 
grade type.^  And  so,  contemporaneously  with  the  growth  of  the 
power  of  the  royal  courts,  we  get  the  growth  of  many  various 
attempts  to  pervert  their  machinery ;  and,  when  the  royal  power 
weakened,  these  attempts  were  so  frequently  and  successfully 
made  that  the  law  was  subverted  and  civil  war  ensued.^ 

But  naturally  the  struggle  of  the  courts  with  these  forms  of 
lawlessness  produced  the  growth  of  a  body  of  law,  both  enacted 
and  unenacted,  which  defined  and  distinguished  many  various 
offences.  Both  the  statutes  and  the  Year  Books  show  that,  by 
the  end  of  the  mediaeval  period,  it  had  grown  to  a  large  bulk. 
Such  offences  as  rescous,  escape,  and  prison  breach  were  largely 
illustrated  in  the  books.*  But  more  interesting  than  these  are 
certain  offences  which  were  more  directly  designed  to  pervert  the 
machinery  of  justice.  These  are  the  offences  of  forgery,  perjury, 
conspiracy,  deceit,  champerty,  maintenance,  and  embracery.  Of 
the  first  four  of  these  I  shall  speak  under  the  following  head,  as 
they  all  became  generalized,  and  developed  into  offences  which 
had  nothing  to  do  with  the  perversion  of  the  machinery  of  justice. 
At  this  point  I  must  say  something  of  the  history  of  the  last 
three  of  these  offences. 

It  would  seem  that  the  earliest  of  these  offences  to  become 
differentiated  was  champerty.^  Neither  Glanvil  nor  Bracton 
have  anything  to  say  of  maintenance.^  But  Bracton  mentions 
what  afterwards  came  to  be  known  as  champerty,  that  is  the 
maintenance  or  support  of  a  suit  in  consideration  of  a  share  of 
the  proceeds.  This  it  would  seem,  was  a  criminal  offence  when 
Bracton   wrote,  as   it  was  included   among  the  articles  of  the 

1  Vol.  i  506  and  n.  6.  2  Vol.  ii  415-418.  3  ibid. 

^Staunford,  P.C.  i  cc.  25-33  ;  Hale,  P.C.  i  caps,  lii,  Hii,  liv. 
5  On  this  subject  generally  see  Winfield,  Hist,  of  Conspiracy  chap,  vi,  the  sub- 
stance of  which  is  also  printed  in  L.Q.R.  xxxv  50. 
^  Hist,  of  Conspiracy  140. 


396  CRIME  AND  TORT 

Eyre  ;^  but  it  is  very  doubtful  whether  at  that  time  mere  mainten- 
ance of  a  suit  on  behalf  of  another  was  unlawful.  It  is  true  that 
Coke  and  subsequent  authorities  held  that  it  was  a  common  law 
offence.^  But  there  is  no  clear  evidence  for  this  proposition  ;  and 
for  two  reasons  it  is  difficult  to  suppose  that  much  evidence  can 
be  forthcoming  on  this  point.  In  the  first  place,  whether  it  was 
a  common  law  offence  or  not,  it  was  made  an  offence  by  a  series 
of  statutes  of  Edward  I.'s  reign.  In  the  second  place,  there  is  no 
reason  to  think  that  the  term  maintenance  became  the  technical 
name  for  this  particular  offence  till  the  passing  of  these  statutes.^ 
Even  after  this  date  it  was  often  used  in  the  untechnical  sense  of 
supporting  or  upholding.  A  litigant  will  maintain  his  writ ;  the 
king  will  maintain  his  jurisdiction.^ 

It  was  only  a  few  years  after  Bracton  wrote  that  the  legislature 
discovered  that  the  maintenance  of  another's  action  might  lead 
to  the  perversion  of  justice,  even  though  there  was  no  agreement 
that  the  maintainer  should  share  the  profits.^  With  this  discovery 
begins  the  history  of  maintenance  as  a  criminal  and  a  civil  offence. 
Naturally  many  of  the  statutes  dealt  also  with  champerty ;  and  it 
is  mainly  the  treatment  of  these  two  offences  by  the  legislature, 
and  the  litigation  to  which  they  gave  rise,  which  have  emphasized 
the  fact  that  they  are  offences  of  the  same  nature,  and  have  given 
rise  to  the  modern  definition  of  champerty  as  an  aggravated  form 
of  maintenance.^ 

The  first  of  these  statutes  is  the  Statute  of  Westminster  I.''' 
Chapter  25  made  champerty  committed  by  a  royal  officer  a 
criminal  offence.^  Chapter  28  inter  alia  made  it  a  criminal  offence 
for  clerks  of  justices  or  sheriffs  to  maintain  suits  depending  in  the 
king's  courts.  Chapter  33  attempted  to  suppress  maintenance 
in  the  local  courts — an  offence  which  had  been  facilitated  by  the 

i'*De  excessibus  vicecomitum  et  aliorum  ballivorum,  si  aliquam  litem  su?cita- 
verint  occasione  habendi  terras  vel  custodias,  vel  perquirendi  denarios,  vel  alios 
profectus,  vel  per  quod  justitia  et  Veritas  occultetur,  vel  dilationem  capiat,"  f.  117a. 

''Coke,  Second  Instit.  212  ;  Hawkins,  P.C.  Bk.  i  cap.  83  §  35  ;  for  other  authorities 
which  have  taken  the  same  view  see  Hist,  of  Conspiracy  139. 

3  Ibid  140-141. 

*  Ibid  134,  and  references  there  cited. 

5 ««  We  have  long  been  told  that  champerty  is  a  species  of  maintenance.  This  is 
true  now,  but  historically  it  looks  very  much  like  an  inversion  of  genus  and  species. 
.  .  .  Before  Edward  I.'s  time,  maintenance  was  used  in  its  purely  popular  sense  of 
support.  Merely  to  maintain  or  support  the  suit  of  another  was  probably  not  a  sub- 
stantive wrong  at  all.  But  it  was  wrongful  if  the  support  were  for  the  purpose  of 
sharing  the  proceeds  of  the  suit,"  Hist,  of  Conspiracy  140. 

^Thus  Coke  says,  Second  Instit,  208,  "An  action  of  maintenance  did  lie  at  the 
common  law,  and  if  maintenance  in  genere  was  against  the  common  law,  a  fortiori 
Champerty,  for  that  of  all  maintenances  is  the  worst ;  "  and  cf.  Co.  Litt.  368b. 

■^  3  Edward  I. 

8  The  reason  why  royal  officials  are  specially  signalled  out  is  the  growing  and 
widespread  corruption  amongst  them,  which  is  well  illustrated  by  the  political  songs 
of  the  period,  see  vol.  ii  294. 


LINES  OF  FUTURE  DEVELOPMENT    397 

general  permission  given  by  the  Statute  of  Merton  to  appoint 
attornies  to  sue  in  those  courts.^  Ths  Statute  of  Westminster  II. 
cap.  49''^  for  the  first  time  mentioned  champerty  eo  nomine.  It 
forbade  the  royal  officials  from  the  Chancellor  downwards  to 
commit  this  offence.^  The  ordinance  against  conspirators  of  21 
Edward  I.  seems  to  be  directed  against  those  guilty  of  both 
maintenance  and  champerty  as  well  as  against  those  guilty  of 
conspiracy ;  *  and  it  perhaps  applied  to  all  persons  guilty  of  main- 
tenance and  champerty,  and  not  only  to  royal  officials.^  However 
that  may  be,  it  is  clear  that  in  the  Articuli  super  Cartas  of  1 300 
there  is  a  general  prohibition  against  champerty,^  and  anyone 
was  allowed  to  sue  for  the  penalty  on  behalf  of  the  king.^  But 
champerty  as  a  term  of  art  was  new.  It  therefore  needed  defini- 
tion ;  and  a  definition  was  supplied  in  the  Statutum  de  Conspira- 
toiibus,  which  defined  conspiracy.^  The  two  offences  were  then 
intimately  allied — indeed,  as  Dr.  Winfield  points  out,  it  was  at 
that  date  hardly  possible  to  distinguish  clearly  the  three  offences 
of  champerty,  maintenance,  and  conspiracy.®  It  should  be  noted 
that  none  of  these  statutes  gave  a  purely  civil  remedy ;  and  the 
absence  of  any  civil  remedy  is  borne  out  by  what  authority  there  is 
in  the  Year  Books.^^ 

In  Edward  III.'s  reign  the  prohibitions  of  both  maintenance 
and  champerty  were  multiplied.  In  1331  a  civil  as  well  as  a 
criminal  remedy  was  for  the  first  time  given ;  ^^  and  there  is  no 

I  Vol.  ii  316.  2  13  Edward  I.  st.  i. 

3"  The  Chancellor,  Treasurer,  Justices,  nor  any  of  the  king's  counsel,  nor  clerk 
of  the  Chancery,  nor  of  the  Exchequer,  nor  of  any  justice  or  other  officer,  nor  any  of 
the  king's  house  clerk  or  lay,  shall  not  receive  any  church  nor  advowson  of  a  church, 
land,  nor  tenement  in  fee  by  gift  nor  by  purchase,  nor  to  farm,  nor  by  champerty,  nor 
otherwise,  so  long  as  the  thing  is  in  plea  before  us  or  before  any  of  our  officers." 

4  R.P.  i  96  cited  below  402  n.  3  ;  Statutes  (R.C.)  i  216  ;  for  the  writ  authorized  by 
the  Statute  see  below  404  n.  i. 

5  Its  words  seem  to  warrant  this  construction  ;  but  Dr.  Winfield  points  out.  Hist, 
of  Conspiracy  147  n.  i,  that  the  framers  of  28  Edward  I.  c.  11  thought  that  they  were 
making  the  first  general  statute  on  the  subject ;  the  statute  is  said  to  be  made 
•*  because  the  king  hath  heretofore  ordained  by  statute  that  none  of  his  ministers 
shall  take  no  plea  for  champerty,  by  which  statute  others  besides  his  ministers  are 
not  before  this  time  bound." 

^28  Edward  I.  st.  3  c.  ri. 

7  See  Y.BB.  4  Ed.  II.  (S.S.)  141-143;  n.  12  Ed.  III.  (R.S.)  538-542,  634-637. 

^  "  Campi  participes  sunt  qui  per  se  vel  per  alios  placita  movent  vel  movere 
faciant ;  et  ea  suis  sumptibus  prosequuntur,  ad  campi  partem,  vel  pro  parte  lucri 
habenda,"  33  Edward  I.  st.  2;  below  403;  those  who  habitually  committed  these 
and  the  like  offences  were  said  to  be  guilty  of  barratry,  see  the  Case  of  Barratry 
(158S)  8  Co.  Rep.  36b. 

'•*  "  Conspirators  were  roughly  speaking  those  who  combined  to  abuse  legal  pro- 
cedure. But  what  less  could  be  said  of  champertors  and  maintainers,"  History  of 
Conspiracy  146;  see  the  Eyre  of  Kent  (S.S.)  i  145,  for  a  cass  of  a  conspiracy  to 
maintain. 

10  Hist,  of  Conspiracy  150,  and  see  the  Y.BB.  of  6  Ed.  III.  and  14  Ed.  II.  cited 
at  pp.  148-149. 

II  4  Edward  III.  c.  11. 


398  CRIME  AND  TORT 

doubt  that  such  an  action  was  recognized  in  the  latter  part  of 
the  mediaeval  period.^  In  1347  there  is  another  comprehensive 
statute;^  and  Richard  II.'s  reign  opens  with  another  statute  of  a 
similar  character.^  We  have  seen  that  during  the  remainder  of 
the  mediaeval  period  statutes  directed  against  these  and  cognate 
offences  were  multiplied ;  ^  but  that  they  were  all  ineffective  to 
cure  the  evil  by  reason  of  the  "want  of  goverance"  from  which 
the  country  was  suffering.^  But,  though  they  were  unable  to 
effect  the  purpose  for  which  they  were  passed,  they  did  result  in 
defining  with  a  certain  amount  of  precision  the  two  offences  of 
maintenance  and  champerty. 

Coke  defined  maintenance  as  "  an  unlawful  upholding  of  the 
demandant  or  plaintiff,  tenant,  or  defendant  in  a  cause  depending 
in  suit,  by  word,  action,  writing,  countenance,  or  deed ; "  ^  and  in 
Dr.  Winfield's  opinion  this  fairly  represents  the  Year  Book 
authority.^  Similarly  we  have  seen  that  Coke  defines  champerty 
as  being  simply  an  aggravated  variety  of  maintenance ;  and  that, 
as  a  result  of  this  mediaeval  legislation,  this  is  what  it  had  in 
substance  become.^  There  was  a  good  deal  of  authority  on  the 
question  of  what  was  "unlawful"  upholding.  We  have  seen 
that  the  courts  were  inclined  to  define  very  many  kinds  of  "  up- 
holding "  as  unlawful — the  giving  of  unsolicited  testimony  ^  and 
even  standing  with  a  stranger  at  the  bar.^^  But  it  had  been 
recognized  in  the  Articuli  super  Cartas  that  a  man  might  have 
the  counsel  of  his  legal  advisers  or  his  relations  or  neighbours ;  ^^ 
and  the  cases  make  it  clear  that  blood  relationship,  or  the  relation 
of  master  and  servant,  or  even  charity,  made  it  lawful  to  maintain. ^^ 

We  shall  see  that  these  mediaeval  rules  as  to  maintenance 
and  champerty  are  the  foundation  of  our  modern  law.^^  But  by 
no  means  all  the  mediaeval  rules  have  survived  till  modern  times. 
The  multiplicity  of  the  mediaeval  statutes  and  cases  had  given 
rise  to  numerous  distinctions  which  are  now  obsolete.  Coke  tells 
us  of  the  distinction  between  manutenentia  ruralis  and  curialis,^^ 

1  Hist,  of  Conspiracy  153-154  and  the  Y.BB.  there  cited. 

2 20  Edward  III.  cc.  4,  5,  6.  ^1  Richard  II.  c.  4. 

4  Vol.  ii  452;  see  Hist,  of  Conspiracy  151-152. 

"^  Vol.  ii  414-416  ;  see  Hist,  of  Conirpiracy  154-157. 

8  Second  Instit.  212.  '  Hist,  of  Conspiracy  136. 

^  Above  396  n.  6. 

»  Y.B.  22  Hy.  VI.  Mich.  pi.  7  (p.  5)  per  Paston,  J.  ;  see  vol.  i  334-335- 

10  Y.B.  22  Hy.  VI.  Mich.  pi.  7  (p.  6) per  Newton,  J.;  cp.  Y.B.  21  Hy.  VI.  Mich, 
pi.  30  (p.  15)  per  Paston,  J. 

^^  28  Edward  1.  st.  3  c.  11 ;  vol.  ii  315  n.  i. 

12  Y.B.  21  Hy.  VI.  Mich.  pi.  30  (p.  16). 

"Bk.  iv  Pt.  II.  c.  5§3. 

"  Co.  Litt.  368b ;  manutenentia  curialis  is  what  we  understand  by  maintenance  ; 
manutenentia  ruralis  is  '*  to  stir  up  and  maintain  quarrels,  that  is  complaints,  suits, 
and  parts  in  the  country,  other  than  their  own,  though  the  same  depend  not  in  plea," 
Second  Instit.  213;  Hist,  of  Conspiracy  131-134;  as  Dr.  Witifield  points  out,  it  was 
probably  never  a  distinction  of  very  much  importance. 


LINES  OF  FUTURE  DEVELOPMENT     399 

and  the  distinction  between  general  and  special  maintenance.^ 
But  the  latter  distinction  was  chiefly  or  only  a  pleading  distinc- 
tion ;  and  it  is  doubtful  if  manutenentia  ruralis  still  exists. 

Coke  also  classified  embracery  as  a  subdivision  of  manuten- 
entia curialis.  "  When  one  laboureth  the  jury  if  it  be  but  to 
appeare,  or  if  he  instruct  them,  or  put  them  in  feare,  or  the  like, 
he  is  a  maintainer,  and  is  in  law  called  an  embraceor,  and  an 
action  of  maintenance  lyeth  against  him."^  No  doubt  the 
offences  of  embracery  and  maintenance  are  similar  in  their 
nature ;  but  they  are  clearly  distinct,^  and  are  distinguished  in 
certain  dicta  in  the  Year  Books.^  They  are  not  identified  by 
Fitzherbert,^  and  the  statute  law  relating  to  them  is  different. 
Statutes  of  1332^  and  1361  ^  had  made  it  a  criminal  offence  in  a 
juror  to  receive  a  bribe,  and  had  allowed  anyone  to  sue  for  the 
penalty  provided  for  this  offence.  In  1365^  a  penalty  of  ten 
times  the  amount  taken  was  imposed  both  on  a  juror  who  took 
a  bribe  and  on  an  embraceor  who  actually  took  money  to  labour 
or  procure  a  jury — a  penalty  enforced  by  the  writ  of  decies 
tantum.^  But  it  was  clear  that  a  person  "who  had  come  to  the 
bar  and  talked  in  the  cause,  or  who  had  stood  there  to  survey 
the  jury  or  put  them  in  fear,"  ^^  had  done  an  act  very  similar  to 
and  hardly  distinguishable  from  an  act  of  maintenance.  Natur- 
ally therefore  the  courts  tended  to  regard  such  acts  as  acts  of 
maintenance;^^  and  the  analogy  was  strengthened  by  the  fact 
that  relationships  which  would  afford  a  defence  to  proceedings 
for  maintenance  were  also  a  defence  to  certain  acts  which  might 

1  As  to  this  see  Hist,  of  Conspiracy  136-138  ;  the  most  intelligible  account  of  it 
seems  to  me  to  be  given  by  Paston,  J.,  in  Y.B.  21  Hy.  VI.  Mich.  pi.  30  (p.  15) 
where  he  says  that  it  is  a  good  justification  to  say  that  the  maintainer  is  of  kin  to 
the  person  maintained,  "auterment  (si)  ceux  que  sont  lais  gens  voillent  prendre  ceo 
pur  un  maintenance,  issint  coarcterait  I'autre  de  monstrer  special  maintenance ; " 
by  which  I  understand  him  to  mean  that  a  verdict  against  the  defendant  who  had 
pleaded  such  a  plea  could  only  be  supported  by  proof  of  special  facts — just  as  at  the 
present  day  a  plea  of  privilege  can  be  rebutted  by  proving  express  malice ;  but  as 
Dr.  Winfield  points  out  the  cases  are  conflicting;  in  Y.B.  22  Hy.  VI.  Mich.  pi.  7 
(p.  6)  Newton,  J.,  seems  to  regard  it  as  an  act  which  needs  to  be  specially  defined 
in  the  declaration — like  an  innuendo  in  the  case  of  a  libel  which  is  not  at  first  sight 
defamatory. 

2  Co.  Litt.  3653.  2  Hist,  of  Conspiracy  135-136. 

4  Y.BB.  13  Hy.  IV.  Hil.  pi.  12  per  Hankford,  J. ;  11  Hy.  VI.  Mich.  pi.  24  per 
Martin,  J.,  cited  Hist,  of  Conspiracy  136  n.  r. 

^F.N.B.  171  B.  thus  defii  es  an  Embraceor:  "An  Embraceor  is  he  who  cometh 
to  the  bar  with  the  party  and  talketh  in  the  cause,  or  standeth  there  to  survey  the 
jury,  or  to  put  them  in  fear ;  but  the  lawyers  may  plead  in  the  cause  for  their  fees, 
but  they  cannot  labour  the  jury,  and  if  they  take  money  so  to  do  they  are  em- 
lDr3.C£ors  ' ' 

6  Edward  III.  c.  10.  ^  3^  Edward  III.  c.  8. 

838  Edward  III.  c.  12. 

9  "  Decies  Tantum  lieth  against  an  embraceor  if  he  take  money,  as  well  as 
against  a  juror,  otherwise  not,"  F.N.B.  171  A. 

10  Above  n.  5. 

liY.B.  22  Hy.  VI.  Mich.  pi.  7  (p.  b)  per  Newton,  J. 


400  CRIME  AND  TORT 

otherwise  have  amounted  to  embracery.^  The  legislature  also 
took  the  view  that  the  two  offences  were  substantially  similar 
when  it  penalized  them  in  the  same  way  in  1541.^  Probably 
therefore  Coke  did  not  materially  misrepresent  the  actual  state 
of  the  law  in  his  day  when  he  classified  embracery  as  a  species 
of  maintenance.^  This  was  in  fact  the  result  of  the  way  in  which 
this  branch  of  the  law  had  been  developing  during  the  fifteenth 
and  sixteenth  centuries.  When  this  identification  had  been 
established  it  became  possible  to  contend  that  acts  of  embracery 
were,  equally  with  acts  of  maintenance,  offences  at  common  law.^ 
But  obviously  for  this  proposition  there  was  even  less  authority 
than  for  the  proposition  that  maintenance  was  a  common  Jaw 
offence.^  No  doubt  from  an  early  period  violence  to  jurors 
could  be  punished  by  indictment  as  a  contempt  of  court ;  ^  but, 
till  the  passing  of  the  statutes  of  1361  and  1365,  and  the  identi- 
fication of  embracery  with  maintenance,  it  is  difficult  to  find  any 
authority  for  the  punishment  of  those  who  attempted  to  influence 
them  unduly. 

(3)  The  offences  designed  to  pervert  the  machinery  of  justice 
which  were  generalized  in  later  law. 

Under  this  head  come,  as  I  have  said,  the  offences  of  forgery, 
perjury,  conspiracy,  and  deceit.  All  these  offences  were  origin- 
ally simply  offences  against  the  machinery  of  justice.  The 
offence  of  forgery  had  been  known  to  the  common  law  from  an 
early  period  ;  but,  apart  from  forgery  of  the  king's  seal  or  money, 
which  was  treason,  the  only  forgery  punishable  at  the  common 
law  was  *'  the  reliance  upon  a  forged  document  in  a  court  of 
law." ''  In  the  case  of  perjury  the  only  form  of  it  punishable  by 
the  common  law  was  the  perjury  of  jurors.^  Other  forms  of  per- 
jury were  matters  for  the  ecclesiastical  courts.  ''  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.  .  .  .  And  so  our  ancestors  perjured 
themselves  with  impunity."^  Since  Edward  I.'s  reign,  if  not 
earlier,  the  law  had  known  the  offence  of  conspiracy  ;  but  the 
only  conspiracy  which  it  punished  was  a  conspiracy  to  take  civil 

1  Y.B.  21  Hy.  VI.  Mich  pi.  30  (p.  16)  per  Newton  and  Paston,  J.J. ;  cp.  Hussey 
V.  Cooke  11621)  Hob.  294;  Hawkins,  P.C.  Bk.  i  c.  85  §  6. 

2  32  Henry  VIII.  c.  g  §  3.  ^  Co.  Litt.  369a. 

4  Hawkins,  P.C.  Bk.  i  c.  85  §  7. 

5  Above  395-396.  ^  Above  393. 

■^  P.  and  M.  ii  539;  for  a  good  instance  see  Y.B.  21,  22  Ed.  I.  (R.S.)  388.  Ap- 
parently in  the  twelfth  century  it  was  treated  as  a  felony,  Assize  of  Northampton 
c.  i ;  and  cp.  Y.B.  18,  19  Ed.  III.  (R.S.)  76,  78  ;  i  Henry  V.  c.  3  gave  a  civil  remedy. 

8  Vol.  i  337-338,  339-340.  ^  P.  and  M.  ii  541. 


LINES  OF  FUTURE  DEVELOPMENT    401 

or  criminal  proceedings  maliciously.'  Similarly  the  law  possessed 
a  writ  of  deceit ;  but  originally  it  lay  only  for  some  deceit  com- 
mitted in  the  course  of  legal  proceedings.^  In  the  future  the 
law  will  be  developed  by  generalizing  all  these  offences.  In  all 
these  cases  this  development  will  be  assisted  and  in  some  cases 
initiated  by  the  practice  of  the  Council  and  the  Star  Chamber  ;^ 
and  in  the  case  of  forgery  and  perjury  it  will  be  assisted  by  the 
legislature.* 

But,  though  this  development  is  mainly  the  work  of  the  six- 
teenth and  early  seventeenth  centuries,  it  was  already  beginning 
in  the  mediaeval  period  in  the  cases  of  conspiracy  and  deceit. 
Of  the  origins  and  mediaeval  development  of  these  two  offences, 
therefore,  it  will  be  necessary  to  speak  at  this  point. 

Conspiracy. 

Both  Bracton  ^  and  Britton  ^  mention  conspiracies  or  con- 
federacies among  the  pleas  of  the  crown  which  should  be  pre- 
sented by  the  jury  of  presentment.  Bracton  would  seem  to 
equate  those  who  conspired  to  commit  crimes  with  accessories  to 
crimes.^  Britton  would  seem  to  confine  the  term  to  conspiracies 
to  hinder  justice;^  and  in  1279  Edward  I.  had  issued  letters 
close  to  the  justices  in  Eyre  ordering  them  to  enquire  into  such 
conspiracies — a  step  which  led  to  the  inclusion  in  the  Articles  of 
the  Eyre  of  the  Article  '*de  mutuis  sacramentis."  ^  But  it  is 
not  till  certain  statutes  of  Edward  I.'s  reign  gave  a  writ  of  con- 
spiracy that  the  offence  definitely  emerged.  Though  some  writers 
have  thought  that  such  a  writ  existed  at  common  law,^^  Dr.  Win- 
field's  examination  of  the  MSS.  Registers  of  writs  would  seem  to 
make  it  very  much  more  probable  that  it  owes  its  origin  to  these 
statutes. ^^    In  fact,  it  may  well  be  that  the  need  for  more  stringent 

^  Below  402-404.  2  Vol.  ii  366  ;  below  407. 

s  Bk.  iv  Pt.  I.  c.  4.  Mbidc.  2. 

"£.128.  6ig5, 

'  "  Ubi  principale  non  consistit,  nee  ea  quae  sequuntur  locum  habere  debent, 
sicut  did  poterit  de  precepto,  conspiratione,  et  consimilibus  quamvis  hujusmodi  esse 
possunt  etiam  sine  facto,  et  quandoque  puniuntur  si  factum  subsequatur,  sed  sine 
facto  non,  juxta  illud :  quid  enim  obfuit  conatus,  cum  injuria  nullum  habuit  effectum. 
Nee  enim  obesse  debent  preceptum,  conspiratio,  preceptum  et  consilium,  nisi  factum 
subsequatur,"  f.  128. 

8  "  Let  it  also  be  enquired  concerning  confederacies  between  the  jurors  and  any 
of  our  officers,  or  between  one  neighbour  and  another,  to  the  hindrance  of  justice ; 
and  what  persons  of  the  county  procure  themselves  to  be  put  upon  inquests  and 
juries,  and  who  are  ready  to  perjure  themselves  for  hire,  or  through  fear  of  anyone  : 
and  let  such  persons  be  ransomed  at  our  pleasure,  and  their  oath  never  after  be 
admissible,"!  95. 

^  H.  E.  Cam,  Vinogradoff,  Oxford  Studies  vi,  xi  58-59. 

^"Staunford,  Pleas  of  the  Crown  172a;  Coke,  Second  Instit.  562;  Y.B.  11  Hy. 
VII.  Trin.  pi.  7  per  Fairfax,  J. ;  Smith  v.  Cranshaw  (1625)  W.  Jones  93. 

^1  Hist,  of  Conspiracy  29-37. 

VOL.  HI.— 26 


402  CRIME  AND  TORT 

measures  was,  as  Miss  Cam  suggests,  caused  by  the  attempts  of 
guilty  persons  to  evade  the  enquiries  made  by  the  government  in 
the  general  Eyre  and  otherwise.^  We  must  therefore  regard  these 
statutes  and  the  writ  given  by  them  as  the  starting  point  of  the 
modern  law  on  this  subject.  But,  as  with  many  another  of  these 
old  writs,  so  with  the  writ  of  conspiracy,  there  was  a  tendency  in 
the  fourteenth  and  fifteenth  centuries  to  supplement,  and  almost 
to  supersede  it  by  an  analogous  action  on  the  case.  The  rise 
and  spread  of  this  action  introduced  a  new  element  into  the 
offence  of  conspiracy,  which  has  had  a  large  influence  on  the 
common  law  on  this  subject,  and  has  modified  both  directly  and 
indirectly  the  law  which  has  grown  up  round  the  writ  of  con- 
spiracy. Therefore  in  dealing  with  the  common  law  on  this 
subject  I  shall  deal  firstly  with  Edward  I.'s  statutes ;  secondly, 
with  the  writ  of  conspiracy  and  its  development ;  and  thirdly, 
with  the  action  on  the  case  in  the  nature  of  a  conspiracy. 

(i)  Edward  I.'s  Statutes. 

There  are  three  of  these  statutes.^  The  first  is  the  so-called 
Statute  of  Conspirators,  which  probably  comes  from  the  year 
1293.^  It  enacted  that  a  writ^  should  be  provided  for  those  who 
wished  to  complain  of  conspirators,  and  of  those  guilty  of  main- 
tenance or  champerty;  and  that  those  found  guilty  of  these 
offences  should  be  punished  by  imprisonment  and  ransom.  The 
second  of  these  statutes  is  a  clause  in  the  Articuli  super  Cartas 
of  1300.  It  provided  that,  "in  respect  of  conspirators,  false  in- 
formers, and  evil  procurers  of  dozens,  assizes,  inquests,  and  juries, 
the  king  has  ordained  a  remedy  by  writ  of  the  Chancery ; "  and 
it  gave  power  to  the  judges  of  either  bench  and  judges  of  assize 
to  try  by  a  jury,  without  writ,  complaints  made  of  such  offences.^ 
These  statutes  had  spoken  of  conspirators  without  giving  any 

1  H.  E.  Cam,  Vinogradoff,  Oxford  Studies  vi,  xi  59. 

2  For  the  statute  of  13  Edward  I.  st.  i  c.  12  for  the  punishment  of  those  who 
brought  or  abetted  false  appeals,  and  the  subsequent  application  of  the  writ  of  con- 
spiracy to  this  case  see  Hist,  of  Conspiracy  39-51.  The  statute  does  not  make  this 
offence  conspiracy,  though  the  two  offences  were  closely  allied. 

3  R.P.  i  96,  "  De  illis  qui  conqueri  voluerint  de  Conspiratoribus,  in  patria  placita 
malitiose  moveri  procurantibus,  ut  contumelie  braciatoribus  placita  ilia  et  contufne- 
lias  ut  campi  partem  vel  aliquod  aliud  commodum  inde  habeant  maliciose  manu- 
tenentibus  et  sustinentibus,  veniant  de  cetero  coram  justitiariis  ad  placita  Domini 
Regis  assignatis,  et  ibi  inveniant  securitatem  de  querela  sua  prosequenda.  Et 
mandetur  Vicecomiti  per  breve  capitalis  justitiarii  et  sub  sigillo  suo,  quod  attachien- 
tur  quod  sint  coram  Rege  ad  certum  diem  :  et  fiat  ibi  celeris  justitia.  Et  illi  qui  de 
hoc  convicti  fuerint  puniantur  graviter,  juxta  discretionem  Justiciariorum  predic- 
torum,  per  prisonam  et  redemptionem  :  Aut  expectent  tales  querentes  Iter  justit- 
iariorum  in  partibus  suis  si  voluerint,  et  ibidem  sequantur  etc. ;  "  for  what  is  perhaps 
another  version,  see  Statutes  of  Uncertain  Date,  Statutes  (R.C.)  i  216. 

^  For  a  discussion  as  to  whether  this  writ  was  original  or  judicial  see  Hist,  of 
Conspiracy  37-39. 

^  28  Edward  I.  st.  3  c.  10. 


LINES  OF  FUTURE  DEVELOPMENT     403 

definition  of  the  term ;  and  as  can  be  seen  from  some  of  the 
writs  in  the  MSS.  Registers,^  the  offence  of  conspiracy  badly- 
wanted  definition.  At  all  times  this  offence  has  been  apt  to  shade 
off  into  the  particular  wrong  which  the  conspirators  have  com- 
bined to  commit.  It  is  therefore  not  surprising  to  find  that,  in 
the  thirteenth  century,  plaintiffs  purchased  writs  of  conspiracy 
when  their  cause  of  action  was  rather  deceit  or  some  other 
specific  wrong.  ^  As  Dr.  Winfield  has  pointed  out,  many  writs 
were  very  "  fluid  "  before  "  the  phrases  in  them  had  crystallized 
as  terms  of  art."^  It  was  with  a  view  of  helping  litigants  to 
ascertain  whether  their  cause  of  action  was  properly  redressible 
by  a  writ  of  conspiracy  ^  that  in  1304  the  legislature  passed  the 
third  of  these  statutes  on  the  subject.^  It  runs  as  follows  : — - 
"  Conspirators  be  they  that  do  confeder  or  bind  themselves  by 
oath  covenant  or  other  alliance  that  every  of  them  shall  aid 
and  support  the  enterprise  of  each  other  falsely  and  maliciously 
to  indict,  or  cause  to  be  indicted,  or  falsely  to  acquit  people, 
or  falsely  to  move  or  maintain  pleas ;  and  also  such  as  cause 
children  within  age  to  appeal  men  of  felony,  whereby  they  are 
imprisoned  and  sore  grieved;  and  such  as  retain  men  in  the 
country  with  liveries  and  fees  for  to  maintain  their  malicious 
enterprises  and  to  suppress  the  truth ;  and  this  extendeth  as 
well  to  the  takers  as  to  the  givers.  And  stewards  and  bailiffs  of 
great  lords,  which  by  their  seignory  office  or  power  undertake  to 
bear  or  maintain  quarrels,  pleas,  or  debates  for  other  matters 
than  such  as  touch  the  estate  of  their  lords  or  themselves."  The 
definition  thus  covered  a  wide  ground ;  but  most  of  the  cases 
brought  under  the  writ  of  conspiracy  were  cases  of  conspiracy 
to  indict  or  appeal  others  for  criminal  offences.  There  are  a 
few  cases  of  conspiracy  to  take  civil  proceedings ;  but  there 
are  none  of  the  other  cases   mentioned  in  the  statute.^      We 

^  Hist,  of  Conspiracy  31-33  ;  as  Dr.  Winfield  says,  "  The  absence  of  any  defini- 
tion of  conspiracy  before  33  Edward  I.  would  justify  experiments  with  the  writ." 

2  Ibid  32 ;  thus  in  Y.B.  3  Ed.  II.  (S.S.)  196  Scrope  argued  that  in  that  case  the 
proper  remedy  was  deceit ;  and  this  argument,  as  Dr.  Winfield  points  out,  prevailed 
at  a  later  date,  Hist,  of  Conspiracy  32. 

3  Ibid  33. 

4  "  The  Statute  of  Westminster  II.  gives  a  writ  in  a  general  way  for  a  plea  of 
conspiracy,  etc.  Bat  the  king  being  advised  that  this  Statute  was  too  general  or- 
dained another  which  names  other  cases  of  conspiracy,"  Y.B.  3  Ed.  II.  (S.S.)  194 
per  Bereford,  C.J. 

5  33  Edward  I.  st.  2. 

^Hist.  of  Conspiracy  51-52  ;  Dr.  Winfield  points  out  that  the  Y.BB.,  and  Fitz- 
herbert's  and  Brooke's  Abridgments  give  fifty-two  cases ;  of  these  thirty-five  were 
cases  of  conspiracy  to  indict  or  appeal  of  criminal  offences,  eight  were  cases  of  abuse 
of  civil  procedure,  one  was  not  a  case  of  abuse  of  procedure,  and  there  are  eight  in 
which  the  nature  of  the  conspiracy  is  not  stated  ;  in  the  Register  of  Writs  "  eight 
out  of  the  nine  writs  are  against  those  who  have  procured  false  appeals  or  indict- 
ments." 


404  CRIME  AND  TORT 

shall  now  see  that  these  limitations  on  the  use  made  by  liti- 
gants of  the  writ  of  conspiracy  had  a  considerable  effect  upon 
its  development. 

(ii)  The  writ  of  Conspiracy  and  its  development. 

The  writ  given  by  the  statute  of  1293^  contemplates  one 
defendant  only,  and  summons  him  to  answer  for  the  plaintiff's 
plea  of  conspiracy  and  trespass.  Later  forms  of  the  writ  set 
out  the  conspiracy  alleged,  and  always  suppose  at  least  two 
defendants.^  In  fact  the  forms  of  the  writ  grew  more  precise 
with  the  growing  precision  in  the  definition  of  the  offence 
remedied  by  the  writ.  It  is  the  development  of  this  definition 
of  the  offence  which  I  must  here  briefly  trace. 

The  writ  of  conspiracy  resembles  many  other  writs  of  the 
thirteenth  century  in  that  it  is  by  no  means  clear  whether  the 
remedy  contemplated  by  it  was  criminal  or  civil.^  In  fact,  like 
the  writ  of  trespass,  the  remedy  given  by  it  was  both  of  a 
criminal  and  civil  nature ;  ^  and  so  in  later  law  a  plaintiff  could 
either  indict  the  defendants,^  or  sue  them  for  damages.^  Just 
as  the  writ  of  trespass  is  the  parent  both  of  the  misdemeanour 
and  of  the  tort,  so  the  writ  of  conspiracy  could,  at  the  option 
of  the  injured  party,  be  used  as  either  a  criminal  or  a  civil 
remedy. 

But  the  cases  in  which  this  remedy  was  available  came 
gradually  to  be  limited  in  the  following  ways : — 

Firstly,  the  writ  came  to  lie  exclusively  for  a  conspiracy  to 
indict  or  appeal  a  man  of  felony.  It  is  pretty  clear  from  the 
definition  given  in  the  statute  of  1304,^  and  from  a  case  of  the 
year  1310  ^  that  its  scope  had  once  been  very  much  wider.  In 
that  case  the  court  held  that  it  lay  for  a  conspiracy  to  procure  an 
infant  to  make  a  statute  merchant,  in  order  to  use  it  to  get  his 

1  •'  Rex  Vicicomiti  Salutem.  Precipimus  tibi  quod  si  A.  de  B.  fecerit  te  securum 
de  clamore  suo  prosequendo,  tunc  pone  per  vadia  et  salvos  pledgios  G.  de  C.  quod  sit 
coram  nobis  a  die  Sancti  Trinitatis  in  XV  dies,  ubicumque  tunc  fuerimus  in  Anglia 
ad  respondendum  prefato  A  de  placito  conspiration  is  et  transgressionis  secundum 
ordinacionem  nostram  nuper  inde  provisam,  sicut  idem  rationabiliter  monstr^re 
poterit  quod  ei  inde  respondere  debeat.  Et  habeas  ibi  nomina  pledgiorum  et  hoc 
breve.     Teste  G.  de  Thornton,"  Statutes  (R.C.)  i  216. 

3  See  the  writ  from  Reg.  Brev.  f.  134,  cited  Hist,  of  Conspiracy  37-38. 

3  Vol.  ii  365,  460.  ■*  Ibid  365. 

^  Y.B.  II  Hy.  VII.  Trin.  pi.  j per  Fairfax;  cp.  Skinner  v.  Gunton  (1669)  Wms. 
Saunders  at  p.  230  ;  the  judgment  if  this  course  was  pursued  was  the  same  as  that 
on  a  writ  of  attaint  (see  vol.  i.  341),  27  Ass.  pi.  59 ;  43  Ass.  pi.  11  ;  we  may  perhaps 
see  it  in  germ  in  Britton  i  95. 

« Y.BB.  24  Ed.  Ill  Mich.  pi.  35 ;  43  Ed.  III.  Mich.  pi.  41  ;  8  Henry  VI.  c.  10 
§  4  gave  in  certain  cases  both  the  criminal  and  the  civil  remedy,  see  Y.B.  11  Hy. 
VII.  Trm.  pi.  7. 

'  Above  403. 

8  Y.B.  3  Ed.  II.  (S.S.)  193-198. 


LINES  OF  FUTURE  DEVELOPMENT     405 

land  by  fraud  when  he  came  of  age.^  In  Edward  III.'s^  and 
Henry  I V.'s  ^  reigns  it  was  held  that  it  lay  for  a  conspiracy  to 
indict  for  trespass ;  and  there  is  a  precedent  of  a  writ  for  a 
conspiracy  of  this  kind  in  the  Register.*  But,  towards  the  end  of 
the  fifteenth  century,  the  judges  were  coming  to  the  conclusion 
that  it  lay  only  for  a  conspiracy  to  indict  or  appeal  for  felony.^ 
It  was  not  till  the  seventeenth  century  that  the  question  arose 
whether  a  conspiracy  to  indict  a  man  for  treason  was  actionable ; 
and  then  it  arose  in  relation,  not  to  the  writ  of  conspiracy,  but  to 
the  action  on  the  case  for  a  conspiracy.^  Secondly,  the  conditions 
under  which  a  person  indicted  or  appealed  for  felony  could  bring 
the  writ  were  precisely  defined.  Thus,  *'  nothing  else  than  a 
technical  acquittal  by  verdict  would  support  the  action.  If  the 
plaintiff  had  gone  free  by  reason  of  a  defective  indictment,  a  charter 
of  pardon,  or  benefit  of  clergy,  he  had  no  standing  in  court ; "  '' 
and  the  law  as  to  the  circumstances  under  which  a  person  appealed 
for  felony  could  sue  were  very  intricate.^  Thirdly,  although  the 
plaintiff  could  either  indict  the  defendant  for  conspiracy  or  sue  him 
for  damages,  the  gist  of  the  proceedings  was  not  the  damage  which 
he  had  suffered,  but  the  act  of  conspiring.  It  followed  therefore 
that  the  proceedings  could  not  be  taken  against  one  defendant.^ 
Since  the  writ  of  conspiracy  had  been  thus  fenced  about  with 
limitations  which  seriously  diminished  its  efificiency,  it  is  not 
surprising  that  here,  as  in  other  cases,  it  was  necessary  to  give  a 
wider  remedy  by  means  of  an  action  on  the  case  in  the  nature  of 
conspiracy. 

(iii)  The  action  on  the  case  in  the  nature  of  conspiracy. 

It  is  clear  that  the  statutes  of  Edward  I.'s  reign  contemplated  a 
very  much  wider  remedy  than  that  given  by  the  writ  of  conspiracy 

1  Y.B.  3  Ed.  II.  (S.S.)  193-194  Ruston  argued  that  the  writ  only  lay  in  two  cases 
*'  namely  where  a  man  sues  a  plea  to  have  champerty  of  the  land,  and  where  there 
is  imprisonment  on  a  false  indictment ; "  but  Hereford,  C.J.,  did  not  give  much  en- 
couragement to  his  argument. 

2  "  Un  Bill  de  Conspiracy  fuit  maintenu  en  Bank  le  Roy  par  agarde  pur  celuy  que 
fuit  endite  de  common  trespass  et  acquitte,  non  obstant  que  ce  ne  fuit  mis  felonie,'* 
3  Ass.  pi.  13. 

3Y.B.  7Hy.  IV.  Mich.  pi.  15. 

^  f.  134 ;  and  this,  says  Dr.  Winfield,  is  paralleled  in  several  MSS.  Registers, 
Hist,  of  Conspiracy  54. 

5  Y.B.  31  Hy.  VI.  Trin.  pi.  6  per  Prlsot,  C.J. ;  F.N.B.  116  A-H  ;  the  remark 
cited  from  3  Ass.  pi.  13  above  n.  2  would  seem  to  show  that  even  in  Edward  III.'s 
reign  opinion  was  tending  in  this  direction. 

^  Hist,  of  Conspiracy  58-59 ;  see  Bk.  iv  Pt.  II.  c.  5  §  3. 

■^  J.  W.  Bryan,  the  Development  of  the  English  Law  of  Conspiracy  (Johns 
Hopkins  University  Studies)  23  ;  cp.  F.N.B.  115  E-G ;  Y.B.  42  Ed.  III.  Pasch.  pi. 
27  per  Kirton  arg. 

8  Hist,  of  Conspiracy  39-51. 

9  Y.B.  24  Ed.  III.  Mich.  pi.  34;  F.N.B.  114  D,  116  L;  see  Winfield,  Hist,  of 
Conspiracy  59  seqq. ;  Present  Law  of  Abuse  of  Legal  Procedure  158-159. 


406  CRIME  AND  TORT 

as  defined  and  limited  by  the  law  of  the  fifteenth  century.  Under 
these  circumstances  it  was  not  difficult  to  apply  the  action  on  the 
case  to  conspiracies  which  did  not  fall  under  the  statutory  writ. 
From  Edward  II I. 's  reign  onwards  there  are  a  large  number  of 
these  actions.^  Possibly,  at  a  time  when  the  limitations  on  the 
writ  of  conspiracy  were  not  yet  precisely  ascertained,  some  of  them 
may  have  been  considered  to  fall  under  the  statutory  writ.^  But 
Fitzherbert,  writing  at  a  time  when  these  limitations  had  been 
ascertained,  has  no  difficulty  in  classing  them  as  actions  on  the 
case.  It  is  clear  that  here  as  in  other  branches  of  the  law  this 
action  was  exerting  a  liberalizing  influence.  As  in  the  earlier 
period  before  the  offence  had  been  rigidly  defined,^  there  is  at 
least  one  case  in  which  the  conspiracy  alleged  has  apparently 
nothing  to  do  with  the  taking  of  legal  proceedings  against  the 
plaintiff.^  But  generally  the  cause  of  action  alleged  a  conspiracy 
to  defraud  the  plaintiff  by  the  fraudulent  use  of  the  machinery  of 
the  courts.  No  doubt  in  allowing  these  actions  the  judges  were 
influenced  not  only  by  the  wide  definitions  of  the  earlier  statutes,^ 
but  also  by  their  willingness  to  suppress  those  abuses  of  legal 
process  which  were  the  most  crying  evil  of  the  time.^  In  one  case 
indeed  of  Richard  II.'s  reign  ^  they  held  (contrary  to  Bracton's 
opinion,^  and  contrary  to  the  prevailing  theory  of  liability  at 
common  law)  ^  that  nn  action  would  lie,  though  nothing  had  been 
done  in  furtherance  of  the  conspiracy.^^ 

Thus  it  is  quite  clear  that  the  scope  of  the  offence  was  being 
very  much  extended  by  the  application  to  it  of  the  action  on  the 
case.  And  not  only  was  its  scope  being  thus  extended  by  the 
action  on  the  case,  but  its  nature  was  becoming  somewhat  altered 
by  reason  of  a  difference  in  the  character  of  the  conditions  needed 
to  support  such  an  action.  The  gist  of  all  actions  on  the  case 
was  the  damage  suffered  by  the  plaintiff.  Hence  the  cause  of 
action  was  not,  as  in  the  proceedings  under  the  writ  of  conspiracy, 
the  act  of  conspiring,^^  but  the  resulting  damage.     It  followed  that 

ip.N.B.  ii6  A-H  ;  Hist,  of  Conspiracy  55-58. 

2  Above  404-405  ;  see  Y.BB.  8  Ed.  III.  Hil.  pi.  50 ;  42  Ed.  III.  Pasch.  pi.  27. 

3  Above  403. 

*  Y.B.  40  Ed.  III.  Pasch.  pi.  10  cited  Hist,  of  Conspiracy  57  ;  for  another  case 
see  a  writ  cited  from  a  MS.  Register  of  the  fourteenth  century,  ibid  37 ;  for  other 
cases  from  the  Parliament  Rolls  and  other  sources  see  ibid  no- 112. 

^Thus  in  Y.B.  11  Hy.  VII.  Trin.  pi.  7  Fairfax  seems  to  think  that  while  at 
common  law  ♦'  on  n'aura  Conspiracy  forsque  sur  Enditement  de  felony,"  under  the 
Statutes  "il  aura  in  trespass." 

^  Vol.  ii  457-459  ;  above  395.  '  Bellewe  f.  80. 

^  Above  401  n.  7. 

*  Above  373,  375  ;  cp.  preamble  to  3  Henry  VII.  c.  14. 

^^  This  case  reported  by  Bellewe  should  probably  be  connected  with  the  view  held 
by  some  of  the  judges  at  this  period  that  the  intent  without  the  act  was  punishable, 
above  373  n.  4. 

^^  Above  405. 


LINES  OF  FUTURE  DEVELOPMENT     407 

an  action  on  the  case  differed  from  proceedings  taken  under  the 
writ  of  conspiracy  in  that  it  was  possible  to  sue  one  conspirator 
alone  without  joining  the  others.^ 

It  is  possible  that  if  the  offence  of  conspiracy  had  been  de- 
veloped by  the  common  law  alone,  the  old  writ  of  conspiracy 
would  have  become  obsolete,  and  the  offence  would  have  become 
a  tort  pure  and  simple  redressible  by  an  action  for  damages. 
As  I  have  already  pointed  out,  there  was  a  tendency  during  the 
latter  part  of  the  mediaeval  period  for  the  miscellaneous  wrongs 
redressible  by  the  writ  of  trespass  to  drop  their  criminal  char- 
acter, and  become  torts.^  But  we  shall  see  that  in  the  sixteenth 
century  the  court  of  Star  Chamber  took  a  hand  in  the  develop- 
ment of  this  offence;  and  that  its  action  introduced  a  very 
different  order  of  ideas  as  to  its  nature,^  which  tended  to  special- 
ise the  character  of  the  offence  redressible  by  the  common  law 
writs.* 

Deceit. 

We  have  seen  that  the  writ  of  deceit  originally  lay  only  for 
some  fraud  committed  in  the  course  of  legal  proceedings ;  ^  and 
the  intricacies  of  process  afforded  abundant  opportunities  for  the 
commission  of  these  frauds;^  the  following  are  some  typical 
examples :  A  protection  was  given  to  a  knight  who  was  serving 
with  the  king  in  Scotland.  Another  knight  of  the  same  name 
deceived  the  court  by  its  means  ;  and  the  injured  party  was  told 
by  all  the  judges  that  it  was  a  proper  case  for  a  writ  of  deceit.'^ 
Judgment  was  entered  against  a  defendant  by  default,  and  then 
it  was  found  that  by  the  fraud  of  the  plaintiff  he  had  had  no 
notice  whatever  of  the  proceedings.^  A  person  counterfeited  a 
statute  merchant,  which  he  put  forward  in  lieu  of  a  statute 
which  had  been  satisfied  and  cancelled.^ 

It  was  in  connection  with  the  contract  of  sale  that  the  earliest 
extension  of  the  writ  of  deceit  is  to  be  found.  In  1 367  ^^  it 
appeared  that  the  plaintiff  had  bought  cattle  from  the  defendant 
and  paid  the  price ;  but  that  the  defendant  was  not  entitled  to 
the  cattle.  It  seems  to  have  been  agreed  that  he  could  recover 
damages  for  this  fraud  by  a  writ  of  deceit  on  the  case.  In 
Henry  VI.'s  reign  there  was  a  considerable  development  of  the 
writ  of  deceit  on  the  case  along  these  lines ;  and  we  shall  see 
that  these  writs  covered  much  the  same  ground  as  that  covered 

^Y.B.  II  Hy.  VII.  Trin.  pi.  7  per  Hussey;  F.N.B.  114  D;  Coxe  v.  Wirrall 
(1607)  Cro.  Jac.  193. 

2  Above  318.  3  Bk.  iv  Pt.  I.  c.  4. 

4  Ibid  Pt.  II.  c.  5  §  3.  5  Vol.  ii  366. 

«  Below  623-626.  7  Y.B.  32,  33  Ed.  I.  (R.S.)  468. 

8  Y.B.  33-35  Ed.  I.  (R.S.)  192 ;  cp.  a  similar  case  in  Y.B.  i,  2  Ed.  II.  (S.S.)  19. 

»  Y.B.  15  Ed.  III.  (R.S.)  314.  "  42  Ass.  pi.  8. 


408  CRIME  AND  TORT 

by  some  of  the  writs  of  trespass  on  the  case.^  The  man  who 
had  sold  bad  meat,  or  who  had  warranted  the  soundness  of  an 
unsound  article,  might  be  said  to  be  liable  either  for  a  form  of 
deceit,  or,  looking  at  the  damage  thereby  caused  to  the  plaintiff,  for 
a  form  of  trespass.  But  even  at  the  end  of  this  period  we  are  only 
at  the  beginning  of  this  development  in  the  law.  The  writ  of  deceit 
was  being  extended  ;  but  there  is  no  attempt  as  yet  to  analyse 
the  nature  of  deceit.  The  law  is  inclined  to  look  rather  at  the 
acts  of  the  parties  and  the  resulting  damage  than  at  their  in- 
tentions ;  ^  and  this  tendency  was  emphasized  by  the  fact  that 
these  deceits  in  the  performance  of  a  contract  of  sale  could 
equally  well  be  regarded  as  breaches  of  warranty.  Owing  to  the 
fact  that  the  writ  had  been  extended  in  this  way  it  was  not  till 
the  following  period  that  the  action  of  deceit  based  on  a  false 
warranty  was  distinguished  from  an  action  for  a  false  representa- 
tion of  fact,^  and  it  was  not  till  much  later  that  actions  of  deceit 
for  a  false  representation  of  fact  became  common.*  It  is  not  till 
our  own  days  that  it  has  been  finally  established  that  the  plaintiff 
in  such  an  action  must  prove  an  intention  to  defraud.^ 

As  I  said  at  the  beginning  of  this  chapter,  we  can  see, 
in  the  tendency  of  the  judges  to  extend  the  scope  of  trespass  on 
the  case,  a  prospect  of  many  new  developments.  We  have  seen 
that  in  consequence  it  is  possible  to  discern  the  germs  of  some  of 
our  modern  principles  of  civil  liability.*'  Bracton,  when  speaking 
of  the  action  for  a  nuisance,  made  some  attempt  to  distinguish 
between  damnum  and  injuria;  and  we  can  see  in  this,  as 
Maitland  points  out,  "  an  incipient  attempt  to  analyse  the  action- 
able wrong."''  In  fact  the  extensions  of  the  actions  of  trespass 
and  deceit  and  the  consequent  extensions  of  the  sphere  of  liability,^ 
made  the  problem  of  drawing  the  line  between  the  damnum, 
which  was  and  the  damnum  which  was  not  an  injuria  a  very 
pressing  problem  at  the  end  of  this  period.^  Perhaps  the  best 
proof  that  the  judges  were  disposed  to  extend  the  area  of  the 

1  Below  429  n.  3  ;  see  Bellewe  139-140.  *'  Trespass  sur  cas  eo  quod  le  defendant 
vend  a  luy  un  chival  et  luy  garrant  d'estre  bon  et  sane  de  touty  maladies,  lou  le 
defendant  sach  le  dit  chival  d'estre  plein  de  maladies  en  le  oyels  et  legges.  Pinchon. 
Cest  bref  suppose  faux  et  fraudulent  vend,  quel  sound  in  disceit,  jugement,  Et  non 
allocatur,  7  R.  2." 

2  When  deceit  on  the  case  was  brought  for  breach  of  warranty  there  was  often 
an  allegation  that  the  defendant  knew  it  to  be  false,  Y.B.  9  Hy.  VI.  Mich.  pi.  37; 
but  it  would  seem  that  this  allegation  was  not  necessary,  Y.B.  11  Ed.  IV.  Trin.  pi.  10  ; 
a  counsel  said  arg.  in  Y.B.  17  Ed.  IV.  Trin.  pi.  2,  '*  home  n'avera  action  de  chose 
que  depend  solement  sur  I'entent  d'ascun  person ;  "  and  this  idea  was  not  far  from 
the  minds  of  many  lawyers  at  this  period. 

3  Bk.  iv  Pt.  II.  c.  5  §  6.  4  Ibid.  5  Derry  v.  Peek  {1889)  14  A.C.  347. 
«  Above  381-382.            7  P.  and  M.  ii  532,  533-  ^  Vol.  ii  455,  456-457- 

9  Y.BB.  6  Ed.  IV.  Mich.  pi.  18;  17  Ed.  IV.  Trin.  pi.  2  the  phrase  is  used  to 
distinguish  the  case  where  an  action  lies  from  the  case  where  it  does  not;  see 
below  410  n.  8. 


LINES  OF  FUTURE  DEVELOPMENT     409 

actionable  wrong  is  to  be  found  in  one  or  two  cases  which  show 
that  they  were  beginning  at  the  very  end  of  this  period  to  discuss 
actions  on  the  case  for  defamation.  But  in  order  to  understand 
the  view  which  the  law  took  of  defamation  at  the  end  of  this 
period  I  must  say  a  few  words  of  its  earlier  history. 

In  the  reign  of  Edward  I.  the  law  had  made  provision  for 
punishing  defamatory  rumours  affecting  the  reputation  of  mag- 
nates. The  first  statute  dealing  with  the  offence  of  Scandalum 
Magnatum  was  passed  in  1275.^  It  was  re-enacted  in  1379,  and 
the  classes  of  persons  who  could  be  reckoned  magnates  were 
defined.^  In  1389  it  was  enacted  that  the  disseminators  of  such 
tales  should  be  punished  if  the  originator  could  not  be  found. ^ 
These  statutes  were  passed,  not  so  much  to  guard  the  reputation 
of  the  magnates,  as  to  safeguard  the  peace  of  the  kingdom. 
This  is  obvious  from  the  words  of  the  statute  of  1275 ;  *  and  the 
same  idea  can  be  traced  in  the  other  two  statutes.^  The  legis- 
lature fears  that  the  good  government  of  the  country  will  suffer 
if  tales  are  told  "  whereby  discord  may  arise  between  the  king 
and  his  people  or  the  great  men  of  this  realm."  This  was  no 
vain  fear  at  a  tirpe  when  the  offended  great  one  was  only  too 
ready  to  resort  to  arms  to  redress  a  fancied  injury.  Such  events 
as  the  rebellion  of  the  Percys  in  Henry  IV.'s  reign  will  show  us 
that  the  throne  might  be  endangered  by  ''the  growth  of  a 
slander  between  the  king  and  the  great  men  of  his  realm."  But 
it  is  probable  that  these  statutes  were  not  very  effective.  Coke 
can  only  cite  two  mediaeval  cases  from  the  records  known  to 
him.^  There  is  another  case  of  Richard  II. 's  reign  in  the  Rolls 
of  Parliament,  in  which  proceedings  were  taken  against  one  John 
Cavendish,  a  fishmonger,  who  had  accused  the  chancellor, 
Michael  de  la  Pole,  of  bribery ;  '^  and  from  the  sixteenth  century 
onwards  there  is  a  thin  stream  of  these  cases.^     Though  it  had 

^  3  Edward  I.  c.  34;  and  see  on  this  subject  Jusserand,  English  Wayfaring  Life  272. 

2  2  Richard  II.  st.  i  c.  5.  ^  12  Richard  II.  c.  11. 

^  "  From  henceforth  none  be  so  hardy  to  tell  or  publish  any  false  news  or  tales, 
whereby  discord  or  occasion  of  discord  or  slander  may  grow  between  the  king  and 
his  people  or  the  great  men  of  the  realm ;  "  it  was  for  this  reason  that  these 
actions  were  qiti  tarn  actions,  Cromwell's  Case  (1578)  4  Co.  Rep.  at  f.  13a ;  but  its 
civil  tended  to  become  more  prominent  than  its  criminal  aspect. 

^  Thus  in  2  Richard  II.  st.  i  c.  5  it  is  recited  that,  in  consequence  of  such  slanders 
"  Debates  and  slanders  might  arise  betwixt  the  said  lords,  or  between  the  lords  and 
the  commons  .  .  .  and  whereof  great  peril  and  mischief  might  come  to  all  the 
realm,  and  quick  subversion  and  destruction  of  the  said  realm." 

"Third  Instit.  174 — the  cases  of  Adam  de  Ravensworth  and  John  de  Northamp- 
ton ;  as  we  have  seen  above  392,  the  latter  was  probably  not  a  case  of  scandalum 
magnatum.  This  may  be  due  to  the  competition  of  the  Constable  and  Marshal's 
Court,  vol.  i  580. 

7  R,P.  iii  168-170  (7  Rich.  II.  nos.  11-15). 

^  Beauchamp  v.  Croft  (1569)  Dyer  285a;  Earl  of  Lincoln  v.  Roughton  (1607) 
Cro.  Jac.  196;  Viscount  Ley  v.  Stephens  (1629)  Cro.  Car.  135 ;  all  the  former  cases 
were  fully  considered  in  Lord  Townsend  v.  Hughes  (1677)  2  Mod.  105 ;  cf.  Comyn, 
Dig.  Action  on  the  Case/or  Defamation^  B.  1-3, 


410  CRIME  AND  TORT 

long  been  obsolete,  the  offence  of  scandalum  magnatum  was  not 
formally  abolished  till  1888.1 

Unless  the  case  fell  within  the  provisions  of  these  statutes 
the  courts  of  common  law  declined  to  give  any  action  for 
defamatory  words.  We  have  seen  that  this  wrong  had  been 
recognized  by  the  Anglo-Saxon  laws;^  and  Bracton  had, 
under  the  influence  of  Roman  law,  classed  it  with  the  wrong 
of  trespass  to  the  person.^  But  we  have  seen  that  the  principle 
that  no  such  action  lay  at  common  law  had  been  solemnly 
laid  down  by  Parliament  in  Edward  I.'s  reign.*  It  was  only 
if  the  defamatory  words  were  accompanied  by  some  overt 
act,  such  as  beating  or  destruction  of  property,  that  the  court 
gave  a  remedy.  Probably  in  such  cases  the  words  aggravated 
the  damages.^  At  any  rate  plaintiffs  in  actions  of  trespass 
usually  allege  insults  ''inter  alia  enormia."  For  defamation 
pure  and  simple  the  plaintiff  was  obliged  to  resort  either  to 
the  local  courts,  which,  as  we  have  seen,  freely  entertained 
such  cases,^  or  to  the  ecclesiastical  courts.  The  jurisdiction 
of  the  ecclesiastical  courts  was  recognized  both  by  the  legisla- 
ture ^  and  the  judges.^  But  it  was  soon  *seen  that  an  un- 
limited jurisdiction  over  cases  of  defamation  might  be  used, 
like  an  unlimited  jurisdiction  over  breaches  of  faith  was  used, 
to  get  indirectly  control  over  cases  which  ought  to  have  gone 
to  the  king's  court.  Thus  persons  indicted  and  acquitted 
had  a  habit  of  suing  the  indictors  for  defamation  in  the  eccle- 
siastical courts.  It  was  enacted  that  in  such  cases  a  prohibition 
should  lie.^  In  Edward  IV. 's  reign  1*^  we  get  an  odd  tale  of 
a  similar  perversion  of  the  action  for  defamation  told  of  no 
less  a  person    than    the   abbot    of   St.    Albans.      He  had   sent 

^50,  51  Victoria  c.  59,  which  repealed  the  statutes  creating  it. 

2  Vol.  ii  382  n.  II. 

3  f.  155.  *'  Fit  autem  injuria  non  solum  cum  quis  pugno  percussus  fuerit, 
verberatus,  vulneratus,  vel  fustibus  caesus,  verum  cum  ei  convitium  dictum  fuerit, 
vel  de  eo  factum  carmen  famosum  et  hujusmodi." 

4Vol.  ii366.  5 p   and  M.  ii  536.  "Vol.  ii  382-383. 

■^  13  Edward  I.  st.  4  c.  i  §  8  ;  9  Edward  II.  st.  i  c.  4, 

^Y.BB.  12  Hy.  VII.  Trin.  pi.  2  (p.  24),  •' Le  cas  de  diffamation  est  tput 
spirituel  offence,"  per  Fineux,  C.J. ;  17  Ed.  IV.  Trin.  pi.  2,  "  Et  sont  divers 
cases  en  nostre  ley  lou  home  avera  dampnum  sine  injuria,  come  le  defamation 
en  appellant  un  home  laron  ou  traytor,  cest  damage  en  nostre  ley,  mes  nul  tort," 
per  Nedham  and  Billing. 

^  I  Edward  III.  st.  i  c.  11.  We  may  note  that  in  the  MS.  Register,  described 
vol.  ii  App.  Ve  (p.  619  n.  5),  there  are  at  ff.  28,  28b  two  writs  of  prohibition  to  meet 
the  case  where  proceedings  in  the  king's  courts  were  made  the  basis  of  an  action 
for  defamation  in  the  ecclesiastical  courts ;  for  an  actual  case  see  Y.B.  18  Ed. 
IV.  Pasch.  pi.  32 — action  for  defamation  founded  on  proceedings  in  the  King's 
Bench  for  trespass  de  bonis  asportatis. 

i"Y.B.  22  Ed.  IV.  Trin.  pi.  47  and  Mich.  pi.  9;  for  Cardinal  Morton's  letter 
to  the  Abbot  of  St.  Albans  as  to  the  illegal  and  immoral  practices  of  himself 
and  the  monks  see  Gairdner,  LoUardy  and  the  Reformation  i  269-273. 


LINES  OF  FUTURE  DEVELOPMENT     411 

for  a  certain  married  woman,  detained  her  in  his  chamber, 
and  solicited  her  chastity  without  success.  Her  husband  then 
sued  the  abbot  for  the  imprisonment  of  his  wife.  The  abbot 
thereupon  sued  him  for  defamation  in  the  ecclesiastical  court. 
In  such  a  case  the  court  found  no  difficulty  in  awarding  a 
prohibition  to  the  ecclesiastical  court  and  declining  to  grant 
a  writ  of  consultation.  In  self-defence,  then,  the  courts  of 
common  law  would  prohibit  certain  actions  for  defamation. 
But,  in  spite  of  one  doubtful  case  to  the  contrary,^  it  is  clear 
that  all  through  this  period  they  declined  to  entertain  actions 
merely  for  defamation.  It  is  not  till  Henry  VIII. 's  reign,  in 
the  very  last  of  the  Year  Books,^  that  we  have  any  hint  that 
the  courts  are  beginning  to  think  of  claiming  some  share  in 
this  jurisdiction.  Here,  as  in  other  branches  of  the  law  of 
crime  and  tort,  the  decline  of  the  ecclesiastical  courts  and 
the  competition  of  the  court  of  Star  Chamber  led  to  important 
developments  in  the  common  law.^ 

I30  Ass.  pi.  ig— an  action  by  bill  by  Sir  Th.  Seton,  "justice  of  our  lord  the 
king,"  against  Lucy,  the  wife  of  one  C.,  for  that  she  in  the  presence  of  the 
treasurer  and  the  barons  of  the  Exchequer  called  him  traitor,  felon,  and  robber  ; 
the  defendant  aggravated  her  offence  by  pleading  that  the  plaintiff  had  been 
excommunicated  by  a  papal  bull,  see  vol.  ii  252  n.  i  ;  this  case  probably  forms  no 
exception  to  the  general  rule,  as  it  might  be  considered  to  be  either  a  case  of 
Scandalum  Magnatum,  or  more  probably  a  species  of  contempt,  above  393 ; 
L.Q.R.  xxv  242-244. 

^Y.B.  27  Hy.  VIII.  Mich.  pi.  4 — action  on  the  case  for  calling  a  man  a 
"  heretic  and  one  of  the  new  learning ;  "  "  II  est  cler  que  cest  action  ne  gist 
icy ;  car  il  est  merement  spirituel.  Et  si  le  defendant  justifieroit  que  le  pleintif 
est  Heretique  .  .  .  nous  ne  pouvons  discusser  s'il  soit  heresie  ou  non  ;  mes  s'il 
fuit  un  chose  ou  pouvons  determiner  le  principal,  come  Thief  ou  Traitor  ou  tiels, 
pro  eux  un  action  gist  icy.  .  .  .  Ascuns  choses  sont  mixez  et  punissable  en 
ambideux  Leys,  come  si  un  dit  que  auter  tient  Bawdry  .  .  .  et  pro  ceux  on  peut 
eslire  ou  il  veut  porter  son  cas." 

3  For  these  developments  see  Bk.  iv  Pt.  I.  c.  4 ;  Pt.  II.  c.  5  §  2. 


CHAPTER  III 

CONTRACT  AND  QUASI-CONTRACT 

WE  have  seen  that  neither  the  Anglo-Saxons  nor  any  of 
the  other  barbarian  tribes  who  overran  the  Roman  Em- 
pire had  attained  to  the  idea  that  agreements  as  such 
could  be  enforced  by  action ;  ^  but  that  in  the  twelfth  and 
thirteenth  centuries  the  study  of  Roman  law  had  familiarized 
Europe  with  the  Roman  conception  of  contract.^  That  a  bare 
agreement  was  not  actionable  was  clearly  to  be  learnt  from 
that  law.  The  agreement  must  be  clothed  with  some  one 
of  many  varied  vestments  before  it  could  become  a  contract.^ 
But  under  the  influence  of  the  canon  law  more  and  more 
attention  was  being  paid  to  the  bare  agreement,  less  and 
less  attention  to  the  learning  of  vestments.  "  The  ecclesiastical 
law  gained  a  foothold  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.  .  .  .  Even  the  '  nude 
pact'  should  be  enforced,  at  any  rate  by  penitential  discipline."* 
But  when  the  old  theory  that  an  agreement  was  not  valid 
unless  made  in  certain  defined  ways  had  been  abandoned,  it 
was  difficult  to  arrive  at  any  principle  by  which  agreements 
could  be  satisfactorily  distinguished  from  contracts.  The  test 
which  was  arrived  at  by  the  canon  law  was  a  much  generalized 
form  of  the  Roman  *' causa,"  which  is  the  ancestor  of  the 
cause  of  French  law  and  the  law  of  other  continental  countries. 
This  cause  might  consist  in  a  moral  obligation,  or  in  the 
mere  intention  to  make  a  present ;  but  if  it  was  entirely  absent 
there  was  no  contract.  And  if  the  promisee  could  have  no 
substantial  interest  in  the  performance  promised,  there  was  no 
such  interest  as  would  amount  to  a  cause} 

In  England   Roman  theories  of  contract  never  took  root. 
Bracton's  book    shows  us  that  they  did  not  fit  English  facts; 

Wol.  ii  82-87.  2 Ibid  igi^  204,  265,  276. 

s  Ibid  275.  *  P.  and  M.  ii  193. 

^  Pollock,  Contracts,  App.  note  E  ;  see  Bk.  iv  Pt.  I.  c.  3  §  i  for  a  comparison 
between  the  continental  theory  and  the  English  doctrine  of  consideration. 

412 


CONTRACT  AND  QUASI-CONTRACT    413 

and  after  his  time  they  ceased  to  influence  the  common  law.^ 
Nor  was  the  common  law  influenced  by  the  theories  of  the 
canon  law ;  for,  in  spite  of  their  continual  efforts,  the  eccle- 
siastical courts  were  not  allowed  to  interfere  with  ordinary 
agreements ;  '^  and  we  shall  see  that  a  theory  of  contract  based 
on  the  canonist  idea  of  causa,  which  was  being  worked  out  by 
the  mediaeval  chancellors,  failed  to  establish  itself.^  The  one 
idea  which  the  common  law  borrowed  from  the  Roman  law 
was  the  idea  that  bare  agreements  were  not  enforceable  at 
law.*  The  common  law  borrowed  nothing  more  positive  than 
this  ;  and  therefore  it  was  obliged  to  decide  for  itself  what 
agreements  should  be  enforceable — to  evolve  in  fact  its  own 
theory  of  contract. 

The  theory  of  the  English  law  of  contract  is  contained  in  the 
doctrine  of  consideration.  It  is  the  presence  of  consideration 
which  distinguishes  a  bare  agreement  from  a  contract.  If  we 
leave  out  of  account  the  contract  of  record  (which  is  no  contract), 
the  contract  under  seal,  and  the  contracts  required  by  special 
statutes  to  be  made  with  special  formalities,  it  would  be  true  to 
say  that  every  agreement  coupled  with  a  consideration  is  en- 
forceable at  law — is,  in  other  words,  a  contract.  This  considera- 
tion, according  to  the  classical  definition,^  "  may  consist  either  in 
some  right,  interest,  profit,  or  benefit  accruing  to  the  one  party,  or 
some  forbearance,  detriment,  loss,  or  responsibility  given,  suffered, 
or  undertaken  by  the  other."  It  is  wider  in  its  scope  than  the 
cause  as  defined  in  modern  French  law  ;  for  "  it  does  not  matter 
whether  the  party  accepting  the  consideration  has  any  actual 
benefit  thereby  or  not :  it  is  enough  that  he  accepts  it,  and  that 
the  party  giving  it  does  thereby  undertake  some  burden,  or  lose 
something  which  in  contemplation  of  law  may  be  of  value. "  ^  At 
the  same  time  it  is  more  definite  and  precise.  It  excludes  such 
things  as  mere  motives  or  moral  obligations. 

It  is  not  till  the  end  of  this  period  that  we  begin  to  see  in 
dim  outline  this  doctrine  of  consideration  upon  which  the  Eng- 
lish theory  of  contract  rests.  Some  of  the  chief  elements  of  it 
are  present ;  but  these  elements  have  not  yet  been  developed 
sufficiently  to  be  summed  up  and  expressed  by  the  term  "con- 
sideration."    The   law  is   as    yet    in  the  stage  in  which  those 

1  Vol.  ii  276,  287.  2  Ibid  305.    ^  ^Bk.  iv  Pt.  I.  c.  4. 

*This  is  expressed  in  Roman  terms  in  Y.B.  11  Hy.  VI.  Pasch.  pi.  30  (p. 
38)  where  Rolf  says,  "Jeo  die  que  ceo  n'est  'pactum  nudum'  mais  'pactum 
vestitum':"  cp.  Y.B.  15  Ed.  III.  (R.S.)  136,  "  B/at^.— This  I  say,  that  he  would 
not  have  an  action  for  either  except  by  way  of  covenant  against  his  grantor. 
Basset,  J. — Ex  nudo  pacto  non  oritur  actio." 

^Currie  v.  Misa  (1875)  L.R.  10  Ex.  at  p.  162. 

6  Pollock,  Contracts  {5th  ed.)  166. 


414    CONTRACT  AND  QUASI-CONTRACT 

doctrines  which  it  has  about  contracts  are  implicated  in  the  law 
as  to  several  different  kinds  of  personal  actions.  It  is  therefore 
at  the  history  of  these  personal  actions,  and  at  the  ideas  upon 
which  they  are  based,  that  we  must  look,  if  we  are  to  understand 
the  manner  in  which  the  common  law  has  evolved  its  own  peculiar 
theory  of  contract. 

The  history  of  these  personal  actions  falls  into  three  fairly 
well  marked  periods,  (i)  The  age  of  Glanvil  and  Bracton,  in 
which  the  old  ideas  as  to  contract  which  have  already  been  dis- 
cussed were  still  prominent.  (2)  The  end  of  the  thirteenth,  the 
fourteenth,  and  the  beginning  of  the  fifteenth  centuries,  in  which 
these  old  ideas  were  remodelled  and  modified  by  the  rules  which 
regulated  the  conditions  under  which  the  older  personal  actions 
of  covenant,  debt,  and  account  could  be  brought.  (3)  The  latter 
part  of  the  fifteenth,  the  sixteenth,  and  the  beginning  of  the  seven- 
teenth centuries,  in  which  we  can  see  the  beginnings  of  the  career 
of  the  new  action  of  assumpsit,  under  the  influence  of  which  the 
whole  law  of  contract  was  destined  to  be  reformed,  and  our 
modern  theory  of  contract  created. 

The  Age  of  Glanvil  and  Bracton 

Glanvil's  account  of  contract  is  coloured  by  Roman  phrase- 
ology ;  ^  but,  in  spite  of  that  phraseology,  the  older  ideas  still 
survive.  He  uses  the  Roman  terms  mutuum,  depositum,  com- 
modatum,  emptio  venditio,  locatio  conductio ;  and,  as  I  have 
said,  transactions  similar  to  those  which  are  known  by  these 
names  were  doubtless  familiar  to  the  men  of  those  days ;  but 
the  law  relating  to  them  was  not  the  Roman  law.  Sale  is  clearly 
stated  to  be  a  real  and  not  a  consensual  contract ;  ^  and  no  clear 
distinction  is  drawn  between  these  various  transactions.  They 
are  all  regarded  as  creating  a  debt ;  ^  and  a  debt,  Glanvil  tells  us 
in  one  passage,  is  created  sometimes  by  giving  sureties,  some- 
times by  giving  some  property  as  security,  sometimes  by  pledge 
of  faith,  sometimes  by  writing.^  These  words  are  reminiscent  of 
the  ideas  which  were  prevalent  in  Anglo-Saxon  days.  We  see 
the  real  principle  in  the  surety  and  the  security;    we  see  the 

^  Vol.  ii  igi,  204. 

2  Glanvil  x  14,  •*  Perficitur  autem  emptio  et  venditio  cum  effectu  ex  quo  de  pretio 
inter  contrahentes  convenit ;  ita  tamen  quod  secuta  fuerit  rei  empta  et  venditce  tra- 
ditio.^' 

2 Ibid  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  commodato,  aut  ex 
locato,  aut  ex  deposit©,  aut  ex  alia  justa  debendi  causa." 

4 Ibid  X  3,  "Cum  quid  autem  creditur  alicui  solet'illud  plerunque  credi  sub 
pledgioruui  datione,  quandoque  sub  vadii  positione,  quandoque  sub  fidei  interposi- 
tione,  quandoque  sub  cartas  expositione,  quandoque  etiam  sub  plurium  istorum  simul 
securitate." 


AGE  OF  GLANVIL  AND  BRACTON    415 

ecclesiastical  influence  in  the  pledge  of  faith ;  we  see  the  formal 
principle  in  the  writing.^  But  we  may  note  that  though  Glanvil 
thus  speaks  of  debts  proved  by  pledge  of  faith,  he  makes  it  clear 
in  other  passages  that  the  king's  courts  refused  to  enforce  con- 
tracts made  only  with  this  formality  ;  ^  and  the  Constitutions  of 
Clarendon  prohibited  the  ecclesiastical  courts  from  attempting  to 
do  so,  asserting  that  pleas  of  debt,  whether  or  not  contracted 
with  pledge  of  faith,  belonged  to  the  jurisdiction  of  the  royal 
courts.^  Similarly  he  lets  us  see  that  the  giving  of  a  security, 
symbolic  or  otherwise,  was  ceasing  to  make  an  agreement  bind- 
ing.* Thus,  although  we  see  in  Glanvil  traces  of  the  old  ideas 
which  will  live  long  in  popular  custom  and  in  outlying  branches 
of  the  law,^  we  see  clear  signs  of  the  newer  ideas  which  will,  in 
course  of  time,  require  an  agreement  either  to  be  performed  on 
one  side  or  to  be  in  writing  if  it  is  to  be  actionable.  But  as  yet 
it  is  only  debts  which  will  be  enforced  if  evidenced  by  writing. 
Even  writing  will  not  render  mere  *'privatae  conventiones " 
actionable  in  the  royal  courts.^ 

In  Bracton's  account  of  contract  the  Roman  element  is 
stronger ;  ^  but  in  the  case  of  the  law  of  contract  it  is  very  much 
on  the  surface ;  and  it  has  exercised  the  least  influence  of  all 
Bracton's  borrowings  upon  the  fabric  of  the  law.  In  his  day  it 
is  at  the  rules  which  regulate  the  personal  actions  that  we  must 
look  for  such  living  rules  upon  the  subject  of  contract  as  the 
common  law  possessed.  These  rules  were  beginning  to  exercise 
a  more  decisive  influence  upon  the  fabric  of  the  law  than  in  the 
earlier  period,  because  of  the  rapid  increase  in  the  number  of 
writs  "  of  course."  ^  The  writ  of  debt  was  a  luxury  to  be  pur- 
chased at  a  high  price  in  Glanvil's  day,^  and  he  does  not  mention 
the  writ  of  covenant.  In  Bracton's  day  both  these  writs  were 
commonly  used.  Though,  therefore,  Bracton  has  copied  many 
more  Roman  rules  than  Glanvil,  we  are  not  surprised  to  find 
that  the  actual  principles  of  the  law  are  much  the  same  as  they 
were  in  Glanvil's  day.     Thus  we  can  see  the  real  principle  in  the 

1  Vol.  ii  83-87. 

2  Glanvil  x  12,  "  Creditor  ipse  si  non  habeat  inde  vadium  nee  plegium,  nee  aliam 
diracionationem,  nisi  sola  fides,  nulla  est  haec  probatio  in  curia  domini  regis." 

3  C.  XV. 

^  P.  and  M.  ii  200,  201 ;  cp.  Glanvil  x  6,  7  (there  cited),  and  his  treatment  of 
earnest  in  x  14,  P.  and  M.  ii  206. 

15  Vol.  ii  87. 

^ "  Predictos  vero  contractus  qui  ex  privatorum  consensu  fiunt,  brevitur  transigi- 
mus,  quia  ut  predictum  est,  privatas  conventiones  non  solet  curia  domini  regis  tueri, 
et  quidem  de  talibus  contractibus  qui  quasi  privatae  quaedam  conventiones  censeri 
possunt,  se  non  intromittit  curia  domini  regis,"  Glanvil  x  18,  see  also  ibid  x  8;  cp. 
Street,  Foundations  of  Legal  Liability  ii  8-10,  who  I  think  rightly  distinguishes  the 
sealed  writing  evidencing  a  debt,  and  other  covenants  evidenced  by  sealed  writing. 

'  Vol.  ii  275-277.  8  Ibid  245,  513-514.  s  P.  and  M.  ii  203,  204. 


416    CONTRACT  AND  QUASI-CONTRACT 

transfer  of  money  or  chattels  which  must  be  alleged  and  proved 
if  one  would  succeed  in  an  action  of  debt ;  and  the  formal  prin- 
ciple in  the  writing,  identified  by  Bracton  with  the  siipulatio, 
which  gives  rise  to  the  action  of  covenant.  It  is  clear,  however, 
from  Bracton's  words  that,  though  generally  it  was  only  debts 
evidenced  by  writing  which  would  be  enforced  in  the  king's 
courts  by  action  of  debt,  these  courts  were  beginning  as  a  special 
favour  to  think  of  enforcing  by  action  of  covenant  ''privatae  con- 
ventiones,"  provided  that  they  were  evidenced  by  writing.^  But 
the  new  principles  which  determine  the  action  of  the  king's  courts 
have  not  yet  quite  got  that  sharpness  of  outline  which  they  will 
get  in  later  law,  nor  have  all  the  older  principles  disappeared. 
Thus  it  is  not  yet  quite  settled  that  the  writing  which  will  give 
rise  to  an  action  of  covenant  must  be  a  sealed  writing;^  and  a 
verbal  contract  of  suretyship  was  then  and  for  some  time  to  come 
enforceable — it  is  still  remembered  that  the  surety  originally  gave 
himself  as  a  security,  and  that  "  in  later  days  there  has  been  a 
formal  ceremony  with  a  wed  or  ^festuca"  ^  But  the  royal  courts 
were  still  more  firmly  declining  to  enforce  agreements  made  with 
pledge  of  faith,  and  were  regularly  prohibiting  the  ecclesiastical 
courts  if  they  discovered  them  attempting  to  do  so.  Though 
these  courts,  in  spite  of  royal  prohibitions,  long  continued  to 
exercise  much  jurisdiction  of  this  kind,  it  is  clear  that,  accord- 
ing to  the  common  law  as  laid  down  in  the  royal  courts,  the 
real  and  the  formal  principles  were  fast  coming  to  be  the  only 
two  recognized.  As  we  have  seen,  Bracton  practically  admits 
that  there  is  no  such  thing  as  a  consensual  contract  in  English 
law."* 

It  may  be  noted  that  both  Glanvil  and  Bracton  recognize  in 
some  cases  the  interest  of  one  who  holds  to  the  use  of  or  on 
account  of  another.^  This  is  a  conception  which  will  bear  more 
fruit  in  the  law  of  property  and  in  the  law  of  quasi-contract  than 
in  the  law  of  contract.*^  We  must  here  just  note  that  it  is  one  of 
those  primitive  legal  conceptions  which,  together  with  the  real 
and  the  formal  principles,  are  at  the  root  of  some  of  those  older 
personal  actions  which  shaped  such  law  of  contract  as  was  pos- 
sessed by  the  common  law  during  the  larger  part  of  the  mediae- 

^"Quae  ex  conventione  utriusque  partis  concipitur  .  .  .  et  quarum  totidem  sunt 
genera,  quot  paene  rerum  contrahendarum,  de  quibus  omnibus  omnino  curia  regis  se 
non  intromittit,  nisi  aliquando  de  gratia,"  f.  looa. 

2  Below  417  n.  2. 

^Y.B.  7  Ed.  II.  242;  Holmes,  Common  Law  260;  P.  and  M.  ii  209 ;  vol.  ii  84 ; 
below  424  n.  6. 

4  Vol.  ii  277. 

^In  Glanvil  in  the  case  of  the  executor,  Glanvil  vii  6,  8;  L.Q.R.  i  164,  165; 
for  Bracton  see  the  Note  Book  cases  641,  754,  999,  1244,  1683,  1581 ;  and  see  P.  and 
M.  ii  231-236,  note  on  the  early  history  of  the  use. 

"  Bk.  iv  Pt.  I.  c.  2 ;  below  426  ;  vol.  ii  593-595. 


XIIITH  TO  EARLY  XVTH  CENTURIES    417 

val  period.     To  the  development  of  these  older  personal  actions 
we  must  now  turn. 

The  Thirteenth^  Fourteenth^  and  Early  Fifteenth  Centuries 

The  personal  actions  of  covenant  and  debt^  are  the  two 
personal  actions  which  have  influenced  the  early  development  of 
the  law  of  contract. 

The  action  of  covenant  was  the  action  which  was  brought 
upon  instruments  which  were  enforceable  by  virtue  of  their  form. 
After  a  period  of  hesitation  it  was  settled  in  Edward  I.'s  reign 
that  that  form  must  be  a  writing  which  is  sealed.^  The  older 
forms  had  disappeared.  The  new  form  is  "  no  product  of  the 
ancient  folk-law.  The  '  act  and  deed '  that  is  chosen  is  one  that 
in  the  past  has  been  possible  only  to  men  of  the  highest  rank.'* 
Here,  as  in  other  branches  of  the  law,  the  law  for  the  great  has 
become  common  law  for  alL^  The  reason  why  a  sealed  writing 
was  regarded  as  having  this  effect  was  perhaps  the  fact  that  it 
was  only  the  sealed  writing  which  could  be  received  as  irrebut- 
table evidence  that  the  person  whose  seal  is  attached  was  bound. 
Such  person  was  originally  bound,  not  because  the  sealed  writing 
evidenced  an  agreement,  but  because  it  was  conclusive  proof  that 
the  defendant  had  come  under  a  liability  to  the  plaintiff.*  But 
when  once  this  conclusion  as  to  the  probative  effect  of  the  sealed 
writing  has  been  reached,  "It  is  a  short  step  to  holding  as  a 
matter  of  law  that  '  a  deed '  .  .  .  has  an  operative  force  of  its 
own  which  intentions  expressed  never  so  plainly  in  other  ways 
have  not."  ^ 

^  For  the  writs  see  App.  Ib  {3),  and  (i). 

2  See  the  authorities  collected  in  P.  and  M.  ii  218  n.  i ;  and  cp.  H.L.R.  vi  400. 
In  Y.B.  20,  21  Ed.  I.  (R.S.)  222  the  absence  of  a  writing  is  unsuccessfully  pleaded  in 
an  action  of  debt,  and  (apparently)  successfully  in  an  action  of  covenant ;  in  Y.B.  30 
Ed.  I.  (R.S.)  158  the  absence  of  the  seal  is  noted ;  the  rule  is  clearly  stated  in  Fleta 
ii  60.  25,  "  Non  solum  sufficiet  scriptura  nisi  sigilli  munimine  stipulantis  roboretur 
cum  testimonio  fide  dignorum  praesentium ; "  it  is  assumed  in  Y.B.  32,  33  Ed.  I. 
(R.S.)  198,  200;  in  the  Eyre  of  Kent  (S.S.)  ii  35  Herle  arg.  maintained  that  a  tally 
was  no  specialty — "  a  man  may  notch  or  carve  these  notches  at  his  will  or  may  shave 
them  away  without  anyone  knowing  anything  about  it,"  and  this  view  seems  to  have 
prevailed,  see  ibid  57  per  Bereford,  C.J.,  who  applied  Herle's  reasoning  to  a  sealed 
tally;  Core's  Case  (1537)  Dyer  at  f.  23a;  but  it  seems  to  have  been  thought  that, 
though  an  averment  that  nothing  was  due  could  be  made  in  answer  to  a  sealed  tally, 
there  could  be  no  wager  of  law  if  the  plaintiff  produced  such  a  tally,  Y.B.  3  Ed.  II. 
(S.S.)  46-47. 

^iP.  and  M.  ii  220-223. 

4"  If  a  man  by  a  writing  confesses  himself  indebted  to  us,  and  the  writing  goes 
on  to  say  '  and  for  further  security  I  procure  such  an  one  who  binds  himself,'  and  this 
latter  affixes  his  seal  to  the  writing,  how  can  you  argue  that  he  does  not  say  the  same 
thing  as  the  other  man  says  ?  He  affirms  it  by  the  fact  of  affixing  his  seal ;  and  so 
you  must  answer  to  the  deed,"  fer  Spigurnel,  J.,  the  Eyre  of  Kent  (S.S.)  ii  10. 

°  P.  and  M.  ii  218 ;  we  can  see  the  transition  if  we  compare  a  passage  from 
Bracton  with  a  later  Y.B. ;  Bracton  f.  loob  says,  "  Si  quis  scripserit  alicui  se  debere 
VOL.   III.— 27 


418    CONTRACT  AND  QUASI-CONTRACT 

In  the  case,  however,  of  those  writings  which  evidenced  a 
debt^  it  was  several  centuries  before  this  short  step  was  taken. 
If  money  was  handed  over  so  that  a  debt  was  created,  or  if 
chattels  were  bailed,  and  the  transaction  was  evidenced  by  a 
deed,  the  deed  was  considered  merely  as  evidence  of  the  trans- 
action, and  not  as  actually  effecting  it  It  was  irrebuttable  evi- 
dence, it  is  true,  but  only  evidence ;  and  therefore  the  proper 
remedy  was  the  action  of  debt  or  detinue  and  not  the  action  of 
covenant.^  It  was  not  till  1585  that  the  Queen's  Bench  al- 
lowed covenant  as  an  alternative  to  debt  in  such  a  case  ;  ^  and  it 
was  probably  not  till  late  in  the  first  half  of  the  seventeenth 
century  that  the  Court  of  Common  Pleas  followed  suit* 

In  the  case  of  other  agreements  evidenced  by  sealed  writing 
it  would  seem  that  this  short  step  was  taken  almost  immediately. 
We  have  seen  that  in  the  time  of  Bracton  the  king's  court  occa- 
sionally enforced  these  agreements.^  In  fact,  in  the  thirteenth 
century  various  arrangements  relating  to  land — agreements  to 
levy  a  fine,  to  let  land  for  a  term  of  years,  to  settle  land  by  way 
of  feoffment  and  covenant  for  refeofifment^ — were  enforced  by 
writ  of  covenant ;  and  there  is  some  evidence  that  an  attempt 
was  made  to  establish  by  means  of  these  covenants  a  sort  of 
modified  villeinage. '^     Clearly  the  scope  of  covenant  was  being 

sive  pecunia  numerata  sit  sive  non,  obligatur  ex  scriptura  nee  habebit  exceptionem 
pecuniae  non  numeratae  contra  scripturam ; "  in  Y.B.  8  Rich.  II.  (Bellewe  iii,  cited 
Salmond,  Essays  in  Jurisprudence  181)  it  is  said,  •*  En  dette  sur  contract  le  plaintiff 
monstra  in  son  count  pur  quel  cause  le  defendant  devient  son  dettour.  Autrement  en 
dette  sur  obligation,  car  I'obligation  est  contract  en  luy  meme." 

^  Above  415  n.  6. 

2  This  comes  out  clearly  enough  in  the  Y.BB.  See  Y.B.  39  Hy.  VI.  Mich.  pl. 
46  where  Prisot,  C.J.,  said,  "  Si  jeo  bailie  biens  per  fait  indente  et  puis  port  detinue 
pur  ceux  jeo  ne  count  ore  sur  le  fait  indente  pur  ce  que  n'est  que  chose  testmoignant 
le  bailiment ; "  cp.  Y.B.  6  Hy.  IV.  Hil.  pl.  34,  '*  En  briefe  de  Covenant  il  recovera 
damages  pur  chescun  covenant  enfreint  .  .  .  mes  en  det  il  recovera  forsque  le 
summe  comprise  deins  I'obligation  per  cause  del  covenant  enfreint ;  "  as  Ames  says, 
Lectures  on  Legal  History  152,  "  Such  a  covenant  being  regarded  as  a  grant  of  the 
money  or  chattels,  debt  was  the  appropriate  action  for  their  recovery." 

'Anon.  3  Leo.  119, cited  Ames,  Lectures  152. 

^In  the  case  of  Chawner  v.  Bowes  (1589)  Godb.  217  Warburton  and  Nichols, 
J.J.,  denied  that  covenant  lay;  and  in  Brown  v.  Hancock  {1628)  Het.  iii,  112  the 
same  view  was  expressed  in  argument ;  Ames  says.  Lectures  153,  "  Precisely  when 
the  Common  Bench  adopted  the  practice  of  the  King's  Bench  it  is  perhaps  im- 
possible to  discover ;  but  the  change  was  probably  effected  before  the  end  of  the 
reign  of  Charles  I." 

^  Above  416  n.  i. 

^  P.  and  M.  ii  214,  215  ;  for  specimens  see  Madox,  Form.  nos.  628  (option  to 
purchase) ;  635  (suretyship) ;  536,  541  (money  bonds). 

■^  Bracton  ff.  208b,  209a,  '*  Est  etiam  vilenagium  non  ita  purum,  sive  concedatur 
libero  homini  vel  villano,  ex  conventione  tenendum  pro  certis  servitiis  et  consuetu- 
dinibus  nominatis  et  expressis,  quamvis  servicia  et  consuetudines  sunt  villanae.  Et 
unde  si  liber  ejectus  fuerit,  vel  villanus  manumissus  vel  alienatus,  recuperare  non 
potuerunt  ut  liberum  tenementum,  cum  sit  villenagium,  et  cadit  assisa,  vertitur 
tamen  in  juratam  ad  inquirendum  de  conventione,  propter  voluntatem  dimittentis  et 
consensum  ;  "  see  H.L.R.  vi  399;  above  30. 


XIIITH  TO  EARLY  XVTH  CENTURIES    419 

gradually  enlarged ;  and  it  is  clear  from  the  Statute  of  Wales 
(1284)^  that  by  that  date  any  kind  of  agreement  could  be  en- 
forced by  action  of  covenant.^  In  the  fourteenth  and  fifteenth 
centuries  it  was  a  general  remedy  which  covered  the  whole  field 
of  executory  contracts.  The  commonest  defence  to  actions  on 
such  contracts  was  that  the  plaintiff  had  no  sealed  writing.^ 

These  covenants  or  contracts  under  seal  were  thus,  as 
Holmes  has  said,*  "  no  longer  promises  well  proved."  They  had 
come  to  be  "  promises  of  a  distinct  nature  for  which  a  distinct 
form  of  action  was  provided."  In  later  days,  when  the  doctrine 
of  consideration  had  come  to  be  the  most  distinctive  feature  of 
the  English  law  of  contract,  these  contracts  under  seal  were 
thought  to  be  brought  into  line  with  the  general  rule  requiring 
consideration,  by  saying  that  the  seal  imports  a  consideration, 
and  that  the  parties  were  therefore  bound.  This  view  that  the 
seal  imports  a  consideration  was  put  forward  as  early  as  1 566  ;  ^ 
but  at  that  date  the  theory  of  consideration  was  not  completely 
developed ;  ®  and  the  expression  was  there  used  somewhat 
metaphorically  to  express  the  undoubted  truth  that  the  operation 
of  the  seal  upon  the  agreement  was  similar  to  the  operation  of  a 
consideration,  in  that  it  made  it  enforceable  at  law.  But  if  the 
expression  is  used  to  mean  that  consideration  is  presumed,^ 
it  obviously  gives  a  wholly  false  view  of  the  reason  why  the 
stipulations  in  an  instrument  under  seal  are  enforceable.  They 
are  enforceable  by  reason,  not  of  the  presumption  of  considera- 
tion, but  of  the  form  of  the  instrument,  and  in  fact  there  are 

1 12  Edward  I. 

2  Dealing  with  the  writ  of  covenant  it  says,  "  Quia  infiniti  sunt  contractus  con- 
ventionum  difficile  esset  facere  mentionem  de  quolibet  in  speciali,"  cited  P.  and  M. 
ii  216  n.  2. 

3  E.g.  Y.BB.  43  Ed.  III.  Mich.  pi.  38 ;  2  Hy.  IV.  Mich.  pi.  9. 
*  Holmes,  Common  Law  272-273. 

^  Sharington  v.  Strotton  Plowden  at  p.  309 — "  Where  it  is  by  deed,  the  cause  or 
consideration  is  not  enquirable,  nor  is  it  to  be  weighed,  but  the  party  ought  to 
answer  to  the  deed,  and  if  he  confesses  it  to  be  his  deed,  he  shall  be  bound,  for  every 
deed  imports  in  itself  a  consideration,  viz.  the  will  of  him  that  made  it,  and  therefore 
when  the  agreement  is  by  deed,  it  shall  never  be  called  a  nudum  pactum.  And  in 
an  action  of  debt  upon  an  obligation,  the  consideration  upon  which  the  party  made 
the  deed  is  not  to  be  enquired,  for  it  is  sufficient  to  say  that  it  was  his  will  to  make 
the  deed." 

6  Bk.  iv  Ft.  II.  c.  3  §  I. 

'  "  So  thoroughly  has  this  conception  (the  doctrine  of  consideration)  established 
itself  in  recent  times  that  having  made  the  presence  of  a  consideration  one  of  the 
general  conditions  of  a  valid  contract,  we  are  now  accustomed  to  bring  contracts 
under  seal  within  the  terms  of  the  condition  by  saying  that  when  a  contract  is  under 
seal  the  consideration  is  presumed,"  Pollock,  Contracts  (5th  ed.)  131 ;  as  is  there 
pointed  out  "  the  ancient  reason  why  a  deed  could  be  sued  upon  lay,  not  in  a  con- 
sideration in  our  present  sense  of  the  word  being  presumed  from  the  solemnity  of  the 
transaction,  but  in  the  solemnity  itself;  "  as  Markby  says.  Elements  of  Law  (3rd  ed.) 
309,  '*  To  say  that  a  deed  imports  consideration  is  only  another  way  of  saying  that  a 
promise  under  seal  may  be  sued  on  without  consideration ;  "  a  case  where  this 
erroneous  idea  appears  is  Mitchel  v.  Reynolds  (171 1)  1  P.  Wms.  at  p.  193. 


420    CONTRACT  AND  QUASI-CONTRACT 

many  sealed  writings  upon  which   an  action  can   be  brought, 
which  cannot  be  brought  into  line  with  any  theory  of  contract.^ 

In  the  Middle  Ages  the  action  of  covenant,  as  thus  developed 
so  as  to  remedy  the  breach  of  any  agreement  entered  into  by 
writing  under  seal,  was  a  more  purely  contractual  action  than 
any  other  known  to  English  law.  By  means  of  it  alone  could 
unliquidated  damages  be  got  for  breach  of  an  executory  contract 
It  is  therefore  an  important  action  because  it  helped  to  familiar- 
ize English  lawyers  with  the  idea  of  contract.  As  we  shall  now 
see,  debt  was  not  properly  a  contractual  action  at  all ;  and, 
owing  to  the  limitations  upon  its  scope  which  arose  from  this 
cause,  and  to  other  disadvantages  from  which  it  suffered,  it  was 
a  very  inadequate  remedy  for  the  enforcement  of  contracts. 

I  have  already  said  something  of  the  nature  of  the  action  of 
debt.  We  have  seen  that  originally  it  was  hardly  distinguish- 
able from  detinue,  but  that  in  course  of  time  debt  (especially  if 
brought  in  "the  debet")  tended  to  become  somewhat  more  con- 
tractual in  its  nature,  while  detinue  tended  to  become  somewhat 
more  proprietary  or  delictual.^  In  fact,  actions  of  debt,  like 
actions  of  covenant,  were  as  often  as  not  brought  upon  contracts  ; 
and  just  as  contracts  under  seal  were  supposed  to  be  brought 
into  line  with  the  general  theory  of  contract  by  the  fiction  that 
the  seal  imports  consideration,^  so  all  causes  of  action  upon  which 
the  action  of  debt  could  be  brought  were  by  various  fictions 
supposed  to  be  of  contractual  origin.^  But,  in  spite  of  this, 
neither  debt  nor  detinue  ever  became  completely  contractual  or 
completely  proprietary  or  delictual.  The  fact  was  never  lost 
sight  of  that  the  action  of  debt  was  based  upon  mutual  grants  ; 
and  it  could  be  brought  for  many  causes  of  action  which  were 
far  removed  from  contract.^  On  the  other  hand,  though  the 
action  of  detinue  was  generally  used  to  enable  owners  to  assert 
their  right  to  the  possession  of  chattels,  the  oldest  form  of 
detinue — detinue  sur  bailment — might  be  regarded  as  founded 
on  a  contract.^  At  this  point  we  are  concerned  with  the  most 
important  class  of  actions  of  debt — those  based  on  a  contract. 

In  the  action  of  debt  "the  defendant  was  conceived  of^as 
having  in  his  possession  something  belonging  to  the  plaintiff 
which  he  might  not  rightfully  keep  but  ought  to  surrender."  ^ 
Now,  it  is  clear  that  if  A  had  sold,  or  lent,  or  deposited  goods 

1  Pollock,  Contracts  6-7.  ^  Vol.  ii  368. 

3  Above  419. 

^Salmond,  Essays  in  Jurisprudence  177,  178;  and  cp.  Y.B.  9  Hy.  IV.  Mich, 
pi.  8  Hulls  says,  "Action  personal  est  properment  action  de  Trespass  ou  de 
Debte  .  .  .  et  auxlnt  tiels  actions  surdent  de  tort  fait  al  person  d'un  home,  ou  de 
contract  enter  person  et  person." 

5  Vol.  ii  368;  below  425. 

"  Above  324.  '  H.L.R.  vi  260. 


XIIITH  TO  EARLY  XVTH  CENTURIES    421 

to  or  with  B  for  a  fixed  sum,  and  A  wished  to  be  paid  that  sum, 
the  action  of  debt  would  lie.  It  is  equally  clear  that  till  the 
possession  of  the  goods  had  been  handed  over  no  such  action 
could  be  brought.  The  action  of  debt,  therefore,  was  the 
appropriate  action  by  which  many  of  the  commonest  classes  of 
contracts  could  be  enforced,  provided  that  one  of  the  parties  to 
the  contract  could  prove  that  he  had  so  far  performed  his  part 
of  the  contract  that  he  could  allege  that  the  defendant  owed  him 
a  debt.  Therefore  the  condition  precedent  for  the  liability  of 
the  defendant  upon  such  a  contract  was  the  fact  that  he  had 
received  something  from  the  plaintiff.  In  other  words,  the 
plaintiff  could  not  sue  upon  such  a  contract  unless  he  could  show 
some  ''  quid  pro  quo''  for  the  defendant's  promise.^  As  Sir  John 
Salmond  says, ''The cause  that  led  to  this generali:^ation  respect- 
ing quid  pro  quo — to  this  explicit  statement  of  what  had  been 
implicit  from  the  beginning — was  probably  the  disturbing  in- 
fluence of  the  idea  that  simple  contract  debts  were  really  based 
on  mere  agreement,  and  the  consequent  necessity  of  defining  the 
limits  within  which  an  agreement  was  obligatory."  ^  That  this 
generalization  had  been  arrived  at  at  least  as  early  as  1339 
is  clear  from  the  following  passage  from  a  Year  Book  of  that 
date.^  '*A  writ  of  debt  was  brought  against  one;  and  he 
counted  that  the  plaintiff,  by  covenant  between  him  and  the 
defendant,  had  been  made  his  attorney  for  ten  years,  taking  20s. 
for  every  year,  which  were  in  arrear.  .  .  .  Pole. — He  has  nothing 
showing  the  covenant.  Sharskulie,  J. — If  one  were  to  count 
simply  of  a  grant  of  a  debt  he  would  not  be  received  without 
a  specialty  ;  but  here  you  have  his  service  for  his  allowance,  of 
which  knowledge  may  be  had,  and  you  have  quid  pro  quo" 
Between  this  date  and  the  reign  of  Henry  VI.  we  do  not  get 
many  references  to  quid  pro  quo  under  that  name ;  but  it  is  clear 
that  the  principle  is  quite  familiar,'^     In  Henry  VI. 's  reign  it  is 

A  Salmond,  Essays  in  Jurisprudence  i8i,  182;  Maitland  says,  P.  and  M.  ii  211, 
212,  "  We  may  take  it  as  a  general  principle  of  ancient  German  law  that  the  courts 
will  not  undertake  to  uphold  gratuitous  gifts  or  to  enforce  gratuitous  promises.  .  .  . 
We  may  doubt  whether  in  the  thirteenth  century  a  purely  gratuitous  promise, 
though  made  in  a  sealed  instrument,  would  have  been  enforced,  if  its  gratuitous 
character  had  stood  openly  revealed." 

2  Op.  cit.  182 ;  Y.B.  9  Hy.  IV.  Mich.  pi.  8,  above  420  n.  4. 

3  Y.B.  II,  12  Ed.  III.  (R.S.)  586 ;  cp.  Y.B.  16  Ed.  III.  (R.S.)  ii  526 ;  in  Y.B.  i,  2 
Ed.  II.  (S.S.)  161  we  see  the  generalization,, but  not  the  name  for  it,  Bereford,  J., 
says,  "  When  the  parson  ought  to  have  had  an  estate  by  the  grant  of  the  prior  he 
had  nothing.  Would  it  then  be  reason  that  he  should  be  condemned  in  a  debt  ?  " 
In  Y.B.  20,  21  Ed.  I.  (R.S.)  367  the  term  "  cause"  is  used. 

*  Salmond,  Essays  in  Jurisprudence  183;  Holmes,  Common  Law  267,  268  ;  in 
Y.B.  ig  Ed.  III.  (R.S.)  100  Stonore,  C.J.,  says,  "  There  is  quid  pro  quo ;  and  so  there 
is  a  bargain  of  which  the  court  will  have  cognizance;  "  in  Y.B.  12  Rich.  II.  234 
Rikhill  arg.  says,  "issint  del  heure  que  nous  ne  pouvons  avoir  qtiid  pro  quo  nous 
demandons  jugement  si  encountre  ceomatiere  accion  deviez  avoir." 


422    CONTRACT  AND  QUASI-CONTRACT 

taken  to  be  settled  law.  This  is  illustrated  by  two  cases  (the  facts 
of  which  were  identical)  which  occurred  in  that  reign.^  In  both 
these  cases  A  brought  an  action  of  debt  against  B,  alleging  that 
B  had  promised  A  a  sum  of  money  if  he  married  B's  daughter, 
that  A  had  married  the  daughter,  and  that  B  had  declined  to 
pay  the  money ;  and  in  both  the  whole  argument  turned  on  the 
question  whether  the  marrying  of  the  daughter  was  sufficient 
quid  pro  quo  for  the  promise  to  pay. 

These  two  cases  illustrate  very  clearly  the  evolution  of  the 
conception  oi  quid  pro  quo,  and  the  fact  that,  through  its  exten- 
sion, a  wider  scope  was  given  to  the  action  of  debt.  The  general 
idea  oi  quid  pro  quo  was  benefit  to  the  defendant ;  and  anything 
of  value  which  the  plaintiff  had  conferred  upon  the  defendant 
was  a  quid  pro  quo.  But  men's  conception  of  what  could  be 
regarded  as  conferring  a  thing  of  value  upon  the  defendant  were 
at  first  somewhat  narrow  and  material.  Thus,  in  the  first  of 
these  cases,  Paston,  J.,  denied  that  the  fact  that  the  plaintiff  had 
married  the  defendant's  daughter  could  be  a  quid  pro  quo  for 
the  defendant's  promise.^  He  had  not  directly  done  anything 
for  or  given  anything  to  him.  But  in  the  second  of  these  cases 
some  of  the  judges  were  clearly  of  opinion  not  only  that  the 
marriage  was  a  benefit  which  could  be  regarded  as  in  effect  a 
quid  pro  quo,  but  also  that  any  benefit  conferred  upon  a  third 
person  at  the  defendant's  request  could  be  similarly  regarded.^ 
In  the  sixteenth  and  seventeenth  centuries  this  view  seems  to 
have  prevailed,^  though,  as  we  shall  see,  the  growth  of  the  action 
of  assumpsit  prevented  its  definite  solution  from  being  a  question 
of  much  practical  importance.  Thus  the  conception  of  quid  pro 
quo  had  been  extended  from  the  notion  of  doing  something  for 
or  giving  a  physical  something  to  the  defendant,  to  the  doing 

1  Y.BB.  7  Hy.  VI.  Mich.  pi.  3  ;  37  Hy.  VI.  Mich.  pi.  18. 

2  "  li  ad  declare  coment  il  aura  eu  la  file,  etc.,  mes  il  n'ad  declare  que  le  defendent 
aura  ^w/rf  pro  quo,''  Y.B.  7  Hy.  VI.  Mich.  pi.  3;  in  this  Paston  followed  Y.B.  9 
Hy.  V.  Mich.  pi.  23,  cited  Ames,  Lectures  on  Legal  History  93,  in  which  it  was  held 
that  a  release  by  the  plaintiff  of  a  debt  due  to  him  from  T.  was  no  quid  pro  quo  for 
the  defendant  s  promise  to  pay  him  T.'s  debt. 

3  "  Sicome  jeo  die  a  un  home  que  s'il  voile  carier  xx  quarters  de  frument  de  Mon. 
maistre  Prisot  a  G.  il  aura  xlv,  or  sur  le  matiere  s'il  carie  les  xx  quarters  il  aura  bon 
action  de  Det  vers  moy  des  xlv,  et  encore  la  chose  n'est  fait  a  moy,  eins  per  mon 
commandement,"  Y.B.  37  Hy.  VI.  Mich.  pi.  18  (p.  8)  per  Danvers,  J. ;  "  Sicome  jeo 
die  a  un  Surgeon,  que  s'il  voile  aller  a  un  J.  qui  est  malade,  et  luy  doner  medicine, 
et  face  luy  safe  and  sound  il  aura  c.S.  or  si  le  dit  surgeon  done  al  dit  J.  medicine 
et  luy  iace  safe  and  sound,  il  aura  bon  action  de  Debte  vers  moy  des  c.S.  et  uncore 
la  chose  est  a  un  autre  et  memy  al  defendant  meme :  et  issint  n'ad  il  quid  pro  quo, 
mes  tant  en  effect,"  ibid  p.  9  per  Moyle,  J.  ;  in  Y.B.  17  Ed.  IV.  Trin.  pi.  4,  Rogers 
and  Suliard  thought  that  a  marriage  was  quid  pro  quo,  but  Choke  and  Littleton 
apparently  agreed  that  as  the  matter  concerned  marriage  it  was  not  a  matter  for  the 
common  law  courts. 

^  See  Stonehouse  v.  Bodvil  (1663)  T.  Raym.  67,  and  the  dicta  in  other  cases  of 
actions  of  assumpsit  cited  by  Ames,  Lectures  93-94. 


XIIITH  TO  EARLY  XVTH  CENTURIES    423 

something  for  or  giving  something  to  another  at  his  request,  which 
could  be  regarded  as  a  benefit  to  him.  It  was  quite  clear  how- 
ever that  the  benefit,  whether  conferred  on  the  defendant  him- 
self or  on  a  third  person  at  his  request,  must  have  been  actually 
conferred.  A  mere  promise  to  confer  it  was  not  sufficient.  But 
here  again  we  can  see  a  modification  of  the  original  rule.  We 
have  seen  that  in  the  case  of  a  contract  to  sell  goods  the  promise 
to  convey  was  regarded  as  a  sufficient  quid  pro  quo  for  the  promise 
to  pay.^ 

We  shall  see  that  these  two  extensions  of  the  original  scope 
of  the  action  were  of  considerable  service  to  the  lawyers  when 
they  began  to  develop  the  action  of  assumpsit ;  for  both  afforded 
analogies  which  could  be  made  to  justify  extension.  The  exten- 
sion of  the  conception  of  what  could  be  regarded  as  a  quid  pro 
quo  helped  to  suggest  the  limits  within  which  assumpsit  should 
be  allowed  for  a  non-feasance  in  breach  of  an  undertaking ;  ^  and 
the  fact  that  an  action  lay  on  a  contract  of  sale,  though  the 
goods  had  not  been  delivered  and  the  price  had  not  been  paid, 
was  used  to  justify  the  extension  of  the  action,  firstly  to  certain 
cases  of  non-feasance  in  breach  of  an  undertaking,^  and  secondly 
to  remedy  the  breach  of  wholly  executory  contracts.* 

But,  in  spite  of  these  developments,  the  action  of  debt  was 
for  several  reasons  an  inconvenient  action.  Firstly,  wager  of 
law  was  in  many  cases  possible,  and  when  wager  of  law  was 
possible  the  action  did  not  lie  against  the  representatives  of  a 
deceased  person.^  Secondly,  the  plaintiff  must  be  prepared  to 
prove  the  exact  amount  of  the  debt.  If  he  could  not  prove  that 
the  exact  sum  which  he  claimed  was  due  he  lost  his  action  ;  ^ 
and  great  particularity  was  required  in  his  declaration.'''  Thirdly, 
the  greatest  of  all  its  defects  lay  in  the  fact  that  by  it  claims  for 
unliquidated  damages  for  the  breach  of  executory  contracts  could 
not  be  enforced.  It  followed  that  there  was  no  remedy  for  the 
enforcement  of  such  contracts  unless  an  agreement  under  seal 
had  been  made.  That  this  was  an  inconvenient  state  of  the  law 
was  practically  admitted  in  Edward  III.'s  reign,  in  a  case  which 
shows  us  the  manner  in  which  this  inconvenience  will  hereafter 
be  remedied.^  Its  inconvenience  may  indeed  have  been  miti- 
gated by  the  fact  that  the  local  courts  and  the  courts  of  boroughs 

^  Above  355-356  ;  below  436;  cp.  H.L.R.  xi  261-262. 

2  Below  436-439,  445-456.  3  Ibid.  ^Ibid. 

^  Vol.  i  307 ;  below  578  ;  cp.  Y.B.  12  Rich.  II.  24. 

«Y.B.  3  Hy.  VI.  Mich.  pi.  4  (p.  5). 

'  See  Ames,  Lectures  153,  cited  below  444  n.  5. 

8  Y.B.  48  Ed.  III.  Hil.  pi.  II — action  on  the  case  for  negligence  in  failing  to  cure 
a  horse;  Candish  called  the  action  an  action  of  covenant,  and  said,  •*  Cest  action  de 
covenant  pur  necessity  est  maintenant  sauns  especiality  pur  ceo  que  pur  cy  petit 
chose  home  ne  puit  my  aver  tout  temps  clerke  pur  faire  especiality  ;  "  see  the  case 
noted  by  Holmes,  Common  Law  281,  282. 


424    CONTRACT  AND  QUASI-CONTRACT 

enforced  many  covenants  which  were  not  under  seal.^  Indeed, 
the  fact  that  many  boroughs  by  custom  enforced  such  contracts 
was  allowed  in  some  cases  to  be  a  recognized  exception  to  the 
common  law  rule.'^  But  these  mitigations  tended  to  become  less 
real  as  the  king's  courts,  by  gradually  absorbing  the  greater  part 
of  the  litigation  of  the  country,  made  the  common  law  still  more 
common.  And  as  its  rules  became  more  rigid  ^  it  was  more  and 
more  strongly  felt  that  the  fetters  imposed  upon  the  growing  law 
of  contract  by  the  limitations  of  these  personal  actions  were  too 
burdensome.  Here,  as  in  other  branches  of  the  law,  the  limita- 
tions drawn  by  the  common  law  scheme  of  writs  had  made  the 
law  certain  at  the  price  of  eliminating  many  older  ideas  which, 
if  they  had  been  retained,  would  have  made  for  expansion.^  For 
instance,  just  as  the  rigid  rules  as  to  the  transference  of  seisin 
had  driven  the  conception  of  the  Use  from  the  land  law,^  so  the 
rigid  rules  which  bounded  the  actions  of  covenant  and  debt  had 
prevented  a  verbal  contract  of  suretyship  from  being  enforced,^ 
and  had  made  it  impossible  to  enforce  any  simple  executory  con- 
tract. That  a  remedy  which  could  enforce  such  contracts  was 
demanded  can  be  seen  (i)  from  the  fact  that  the  ecclesiastical 
courts  were  able,  in  spite  of  writs  of  prohibition,  to  maintain  an 
effective  rivalry  all  through  this  period ;  ^  and  (ii)  from  the  fact 
that  the  chancellor  was  prepared  to  supply  a  remedy.^  Fortun- 
ately for  the  common  law,  the  need  for  enlarging  its  forms  of 
action  became  so  pressing  that  something  was  done  to  meet  that 
need  before  its  growing  rigidity  and  the  increasing  activity  of 
the  chancellor  had  allowed  the  opportunity  to  slip.  But,  before  I 
can  deal  with  the  manner  in  which  the  common  lawyers  met  that 
need,  I  must  first  say  something  of  the  manner  in  which  the 
conception  of  quasi-contract  originated  fromithe  working  of  some 
of  these  older  personal  actions. 

In  our  modern  law  there  are  a  large  number  of  obligations 
which  hover  on  the  border  line  of  contract.^     Some  of  them  are 

1  Vol.  ii  382,  388-389. 

2  F.N.B.  146  A  ;  Y.B.  14  Hy.  IV.  Hil.  pi.  33,  "  lis  sont  divers  actions  que  home 
puit  aver  deins  la  Citee  de  Loundres,  que  home  n'avera  my  a  la  common  ley,  come 
action  de  Covenant  sauns  especially." 

^  Cp.  for  the  less  rigid  view  Y.B.  21,  22  Ed.  I.  (R.S.)  458 ;  vol.  i  539  n.  4. 

4  Vol.  ii  344-347>  592-595-  ^  Ibid  593-594- 

^  Such  a  contract  was,  as  we  have  seen  (above  416),  originally  enforced;  it  was 
laid  down  Y.BB.  18  Ed.  III.  (R.S.)  22,  and  44  Ed.  III.  Trin.  pi.  23,  that  such  an 
action  was  not  maintainable.  Here,  again,  there  might  be  an  exception  by  virtue  of 
special  custom,  F.N.B.  122  K  n. ;  as  Holmes  says  (L.Q.R.  i  172),  "  Logic,  that  great 
destroyer  of  tradition,  pushed  suretyship  into  the  domain  of  covenant,  and  the  more 
frequent  and  important  real  contract  succeeded  in  dividing  the  realm  of  debt  with 
instruments  under  seal." 

7  Vol.  ii  305.  8  Bk.  iv  Pt.  I.  c.  4. 

*  Pollock,  Contracts  (5th  ed.)  11-13  ;  Anson,  Contracts  (12th  ed.)  394-397' 


XIIITH  TO  EARLY  XVTH  CENTURIES    425 

real  though  tacit  contracts,  because,  though  there  is  no  express 
agreement,  there  is  an  implied  consent.  They  may  therefore  be 
properly  styled  implied  contracts.  Others  are  not  contracts  at 
all  because  there  is  no  consent ;  but  the  law,  in  order  to  give  a 
remedy,  when  a  remedy  is  plainly  desirable,  treats  the  parties  as 
if  they  had  consented.  They  are  sometimes  styled  contracts 
implied  in  law,  or  more  properly,  quasi-contracts.  The  manner 
in  which  at  different  periods  the  common  law  has  treated  these 
various  obligations  has  tended  to  obscure  their  real  nature. 
Their  shape  has  been  determined  by  the  remedies  by  which  at 
different  periods  they  have  been  enforced;  and  either  because 
the  courts  have  attended  rather  to  the  form  and  development  of 
the  remedy  than  to  the  nature  of  the  right  protected,  or  because 
they  have  allowed  some  of  these  remedies  to  be  extended  to 
rights  of  very  various  natures  by  fictitious  averments,  the  law 
relating  to  them  is  somewhat  heterogeneous  and  confused.  We 
shall  see  that  the  first  of  these  causes  is  plainly  apparent  in  the 
mediaeval  development  of  this  branch  of  the  law ;  and  that  the 
second  is  equally  plainly  apparent  in  its  modern  development, 
owing  to  the  shifts  resorted  to  make  some  form  of  assumpsit 
applicable  to  those  miscellaneous  obligations. 

During  this  period  the  two  actions  which  helped  forward  the 
development  of  this  branch  of  the  law  were  the  actions  of  debt 
and  account. 

We  have  seen  that  the  action  of  debt  was  very  amorphous  in 
its  character.  It  was  proprietary  ;  and  this  in  early  days  was 
perhaps  its  leading  characteristic.^  But,  as  we  have  just  seen, 
it  was  sufficiently  contractual  to  be  capable  of  being  used  to  en- 
force certain  varieties  of  contract ;  ^  and  it  had  also  a  certain 
delictual  element.^  Therefore,  as  we  have  seen,  it  could  be  used 
to  enforce  many  various  obligations  which  are  very  remote  from 
contract.  Thus  it  could  be  used  to  recover  statutory  penalties, 
forfeitures  under  bye-laws,  amercements,  and  money  adjudged 
to  be  due  by  the  judgment  of  a  court*  It  is  largely  because 
judgments  could  be  so  enforced  that  English  law  has  come  by 
that  variety  of  quasi-contract  which  it  styles  a  contract  of  record. 
And  the  development  of  the  actions  of  debt  and  detinue  helped 
also  to  introduce  another  variety  of  quasi-contract.  During  the 
fourteenth  century  it  was  clear  law  that  if  A  bailed  goods  to  B 
for  the  benefit  of  C,  C  could  sue  B  in  Detinue.^  There  is  at 
least  one  authority  which  shows  that  as  early  as  Edward  I.'s 
reign  Debt  would  lie  at  the  suit  of  a  beneficiary  if  money  had 

^  Vol.  ii  368.  2  Above  420-423.  ^  Vol.  ii  368. 

^  Ibid  367.  "  Above  355  and  n.  6. 


426    CONTRACT  AND  QUASI-CONTRACT 

been  given  to  a  third  person  for  his  benefit ;  ^  and  this  principle 
was  certainly  established  in  the  reign  of  Henry  VI.^  Obviously 
in  such  a  case  there  is  no  contractual  relation  between  the  receiver 
of  the  money  and  the  beneficiary.  But,  as  the  beneficiary  had  a 
right  of  action,  his  right  to  the  money  was  just  such  a  right  as 
the  later  lawyers  classed  as  quasi-contractual.  But  it  is  prob- 
able that  the  competence  of  Debt  to  enforce  this  and  other 
analogous  obligations  owes  something  to  the  development  of  the 
action  of  account,  through  which  obligations  in  the  nature  both 
of  implied  contracts  and  quasi-contracts  were  enforced. 

We  have  seen  that  the  action  of  account  became  a  regular 
form  of  action  towards  the  end  of  Henry  lU.'s  reign,  and  that  it 
was  made  more  efficacious  by  statutes  of  1267  and  1285.^  The 
action  was,  as  Maitland  says,  founded  upon  the  proprietary  writs. 
The  plaintiff  demanded  that  the  defendant  should  "  render  '  the 
account^  It  was  really  founded  upon  quasi-contractual  rather 
than  contractual  relationship ;  for  it  gave  effect  to  the  principle 
that  "one  who  had  received  money  from  another  to  be  applied  in 
a  particular  way  was  bound  to  give  an  account  of  his  stewardship."  ^ 
Thus  it  was  used,  "  sometimes  exclusively,  sometimes  concurrently 
with  debt,  to  enforce  claims  of  the  kind  which  in  modern  times 
have  been  the  subject  of  actions  of  assumpsit  for  money  had  and 
received  or  the  like.'  ^  In  this  way  it  gave  some  recognition  to 
the  principle  that  there  should  be  some  remedy  against  one  who 
holds  to  the  use  of  another ;  and,  on  that  account,  it  was  a  popular 
action  in  the  fourteenth  century."^  The  fact  that  there  was  no 
such  action  where  one  held  land  to  the  use  of  another  was  one 
cause  for  the  rise  of  the  chief  branch  of  the  chancellor's  equitable 
jurisdiction.^  In  the  end  it  was  superseded  by  the  more  con- 
venient remedies  which  the  superior  machinery  of  the  court  of 

1  Y.B.  33-35  Ed.  I.  (R.S.)  238 ;  and  the  court  seems  to  have  held  the  same  view 
in  Y.B.  41  Ed.  III.  Pasch.  pi.  5. 

'^"  Quand  un  home  paye  a  un  autre  certain  monoie  per  mon  commandment  a 
mon  oeps,  si  cestuy  que  receut  eel  monnoie  ne  veut  a  moy  payer,  jeo  aurai  bon  brief 
de  Det  ou  Accompttnvtxs  luy,"  Y.B.  36  Hy.  VI.  pi.  5  at  pp.  g-ioper  Wangford  arg.; 
Y.B.  39  Hy.  VI.  Hii.  pi.  y  per  Laicon ;  see  Ames,  Essays  A.A.L.H.  ii  743  and  cases 
there  cited. 

^  Vol.  ii  367. 

^  P.  and  M.  ii  219 ;  for  a  good  general  description  of  the  nature  and  scope  of  the 
action  see  Langdale,  Equity  Jurisdiction  H.L.R.  ii  250  seqq.  The  following  is  the 
form  in  the  Register  f.  135b,  "  Praecipe  A  quod  juste,  etc.,  reddat  abbati  de  Evesham 
rationabile  computum  suum,  etc.  •, "  App.  Ib  (4). 

^  Ames,  Lectures  163. 

6  Pollock,  Contracts  139,  140;  see  e.g.  Y.BB.  33-35  Ed.  I.  (R.S.)  294;  i,  2  Ed. 
II.  (S.S.)  107  ;  2,  3  Ed.  II.  (S.S.)  34  ;  14  Ed.  III.  (R.S.)  Ixviii,  Ixix. 

7  Y.B.  20  Ed.  III.  (R.S.)  ii  xxvii  seqq. 

^  Ames,  H.L.R.  vi  258,  says,  "  That  the  defendant's  duty  to  account  whether  as 
bailiff  or  receiver  arose  from  his  receipt  of  property  as  a  trustee,  and  that  a  plaintiff 
entitled  to  an  account  was  strictly  a  cestui  que  trust.  In  other  words,  trusts  for  the 
payment  of  money  were  enforced  at  common  law  long  before  Chancery  gave  effect 
to  trusts  of  land.     It  need  not  surprise  us,  therefore,  that  upon  delivery  of  money  by 


XIIITH  TO  EARLY  XVTH  CENTURIES    427 

Chancery  was  able  to  offer,^  and  It  survived  only  as  a  remedy  as 
between  tenants  in  common.  Though,  as  Maitland  has  said,^  it 
did  little  or  nothing  for  the  development  of  the  law  of  contract, 
it  did,  as  we  shall  now  see,  something  for  the  development  of  the 
law  as  to  implied  contract  and  as  to  quasi-contract. 

It  is  clear  that  in  some  of  the  cases  in  which  account  lay  there 
is  an  implied  contract — the  element  of  consent  is  present.  If  I 
hand  over  money  to  another  to  employ  for  my  use,  or  if  one  whom 
I  have  made  my  factor  or  bailiff  receives  money  on  my  account, 
the  receiver  of  the  money,  or  the  factor  or  bailiff,  do  in  fact  consent 
to  hold  it  on  my  account,  and  to  hand  it  over  or  otherwise  to 
account  for  it  to  me.  But  if  we  are  regarding  these  rules,  not  so 
much  from  the  point  of  view  of  the  modern  theory  that  the  essence 
of  contract  is  consent,  as  from  the  point  of  view  of  the  duty  to 
pay  enforced  by  the  action  of  account,  it  is  clear  that  the  duty  of 
a  receiver  of  money  to  pay  to  a  third  person  on  whose  behalf  he 
has  received  the  money,  is  not  very  different  from  his  duty  to  pay 
to  the  person  from  whom  he  has  received  it.^  Hence  it  is  not 
surprising  to  find  that,  from  the  fourteenth  century  onwards,  the 
action  of  account  could  be  brought  by  the  third  person  on  whose 
account  the  money  had  been  received ;  *  and  it  is  clear  that  this 
is  a  quasi-contractual  duty  of  the  same  kind  as  that  which  was 
enforced  by  the  action  of  debt.  It  was  not  a  very  long  step  to 
take  to  hold  that  if  A,  by  reason  of  a  mistake  or  in  consequence 
of  false  or  fraudulent  representations  made  by  B,  had  paid  money 
to  B,  he  could  bring  Account  against  B.  This  step  was  taken  at 
the  end  of  the  sixteenth  century ;  ^  and  the  allowance  of  a  right  of 
action  in  cases  of  this  type  could  clearly  be  regarded  as  an  example 
of  the  application  of  "the  equitable  principle  which  lies  at  the 
foundation  of  the  great  bulk  of  quasi-contracts,  namely,  that  one 
person  shall  not  unjustly  enrich  himself  at  the  expense  of  another."  ^ 
No  doubt,  as  Ames  says,'^  "  This  principle  established  itself  very 

A  to  B  to  the  use  of  C  or  to  be  delivered  to  C,  C  might  maintain  an  action  of  account 
against  B.  .  .  .  The  words  'to  the  use  of  still  bear  witness  to  the  trust  relation." 

1  Bk.  iv  Pt.  I.  cc.  4  and  8.  2  p^  and  M.  ii  220. 

-'  Thus  as  Street  says,  Foundations  of  Legal  Liability  ii  205,  the  many  various 
duties  in  the  nature  of  debt  and  enforced  by  the  action  of  debt  "  make  up  a 
homogeneous  mass,  the  principle  of  liability  being  the  same  in  all  of  them  ; "  but  that 
*'  when  viewed  from  the  standpoint  of  assumptual  obligation  they  fall  into  two 
distinct  classes,  viz.  the  so-called  implied  contracts  (contracts  implied  as  of  fact)  and 
the  quasi-contracts  (contracts  implied  as  of  law) ;  "  it  was  from  the  standpoint  of 
debt  that  they  were  regarded  by  the  mediaeval  common  law,  because,  till  the 
development  of  assumpsit,  the  modern  and  logically  correct  distinction  between 
implied  confracts  and  quasi-contracts  was  hardly  conceivable. 

^Y.BB.  41  Ed.  III.  Pasch.  pi.  5 ;  36  Hy.  VL  pi.  5  cited  above  426  n.  2;  Ames, 
Essays  A.A.L.H.  ii  743  n.  5 ;  Core's  Case  (1537)  Dyer  at  f.  21a.  per  Mountague  arg.; 
Lincoln  v.  Topliif  (1597)  Cro.  Eliza.  644 ;  Harris  v.  Beivoir  (1625)  Cro.  Jac.  687  ;  cp. 
Ames,  Lectures  163. 

^  Hewer  v.  Bartholomew  (1597)  Cro.  Eliza.  614. 

^Ames,  Lectures  162.  'Ibid, 


428    CONTRACT  AND  QUASI-CONTRACT 

gradually  in  the  common  law  ; "  but,  it  seems  to  me,  he  is  right 
in  pointing  to  the  action  of  account  as  the  chief  instrument  by 
which  this  principle  was  first  suggested  to  the  minds  of  the 
common  lawyers. 

But,  though  the  first  suggestion  of  this  principle  may  have 
come  through  the  action  of  account,  it  was  not  through  this  action 
that  it  was  destined  to  be  developed.  We  have  seen  that  even  in 
the  Middle  Ages  it  was  recognized  that  in  certain  cases  Debt 
and  Account  were  concurrent  remedies.^  In  the  sixteenth  and 
seventeenth  centuries  the  rule  was  established  that  in  all  cases  in 
which  Account  lay  for  a  fixed  sum  of  money,  Debt  also  lay.^ 
Thus  it  followed  that  Debt  could  be  brought  for  the  recovery  of 
those  fixed  sums  of  money  which  the  defendant  was  under  an 
obligation  enforceable  by  action  of  account  to  pay  to  the  plaintiff. 
But  we  shall  see  that  at  the  end  of  the  sixteenth  and  in  the 
seventeenth  centuries  one  of  the  forms  of  the  action  of  assumpsit — 
indebitatus  assumpsit — was  coming  to  be  alternative  to  the  action 
of  debt.^  It  followed  that  indebitatus  assumpsit  could  be  brought 
for  many  of  those  duties  arising  from  implied  contracts  or  quasi- 
contracts  which  had  formerly  been  enforced  by  the  actions  of  debt 
or  account.  Therefore  it  was  through  this  action  that  the  modern 
law  on  these  subjects  grew  up.  But  with  this  development  I 
cannot  deal  till  I  have  described  the  nature  of  this  action  of 
assumpsit,  the  different  forms  which  it  assumed,  and  the  manner 
in  which  its  sphere  was  gradually  extended,  until  it  supplied  that 
great  want  of  the  mediaeval  common  law — an  adequate  remedy 
for  the  enforcement  of  simple  executory  contracts. 

The  Fifteenth,  Sixteenth  and  Seventeenth  Centuries 

I  have  already  said  something  of  the  manner  in  which  the 
common  law  doctrines  as  to  liability  in  tort  had  been  extended 
and  improved  by  the  working  of  the  actions  of  trespass  and 
deceit  on  the  case.^  In  the  course  of  these  extensions  of  de- 
lictual liability  it  was  inevitable  that  there  should  be  some 
approach  to  the  confines  of  the  territory  of  contractual  liability. 
It  is  quite  clear  that  some  torts  may  be  at  once  torts  and,  if 
there  has  been  any  agreement  between  the  injured  and  the 
injurer,  breaches  of  contract.  At  the  present  day  the  law 
clearly  recognizes  that  there  are  certain  states  of  fact  which  may 

1  Vol.  ii  455  and  n.  i  ;  and  see  Y.BB.  41  Ed.  III.  Pasch.  pi.  5  ;  36  Hy.  VI.  pi.  5 
cited  above  426  n.  2. 

'■^See  the  cases  cited  above  426  n.  2 ;  as  Langdale  has  pointed  out,  H.L.R.  ii 
254-256,  the  two  actions  did  not  become  concurrent  when  the  amount  due  was  not 
ascertained,  and  could  only  be  ascertained  by  taking  an  account,  see  Anon.  (1707)  n 
Mod.  92,  cited  at  p.  256. 

3  Below  447,  450.  4  Vol.  ii  455-457. 


XVTH  TO  XVIITH  CENTURIES         429 

be  regarded  either  as  torts  or  as  breaches  of  contract.^  At  this 
period  there  was,  of  course,  the  greater  temptation  to  bring  such 
causes  of  action  before  the  courts  as  causes  of  action  in  tort, 
seeing  that  they  would  not  have  been  actionable  at  all  if  they 
had  been  sued  on  simply  as  breaches  of  contract.^  It  is  from 
the  later  years  of  Edward  III.'s  reign  onwards  that  cases  of  this 
kind  begin  to  be  numerous ;  and  it  is  in  these  cases,  which  were 
treated  at  first  purely  as  cases  of  tort,  that  we  can  gradually 
trace  the  development  of  our  modern  theory  of  contract.  The 
particular  kind  of  action  of  trespass  or  deceit  on  the  case  ^  which 
was  brought  in  such  cases  gradually  came  to  be  known  as  the 
action  of  Assumpsit)  and  assumpsit,  without  ceasing  to  be  used 
as  an  action  in  tort,  developed  other  branches,  by  means  of  which 
contracts  expressed  and  implied,  and  at  length  even  quasi- 
contracts,  could  be  enforced.  We  shall  see  that  it  is  to  the  con- 
ditions which  must  be  fulfilled  for  the  successful  bringing  of  one 
or  other  of  the  forms  of  this  action  that  we  must  look  for  the 
conditions  which  an  agreement,  other  than  an  agreement  under 
seal,  must  fulfil  before  it  will  be  regarded  by  the  law  as  a  contract. 
The  conversion  of  the  action  of  assumpsit  from  a  delictual 
remedy  to  the  chief  contractual  remedy  of  the  common  law  can 
be  divided  into  the  following  chronological  stages: — (l)  The 
original  application  of  the  action  to  remedy  misfeasances  in 
breach  of  an  undertaking ;  (2)  its  extension  to  remedy  certain 
kinds  of  non-feasance  in  breach  of  an  undertaking ;  (3)  its  absorp- 
tion of  the  greater  part  of  the  sphere  of  Debt,  and  its  extension 
to  remedy  the  breach  of  executory  contracts ;  (4)  its  extension 
to  remedy  the  breach  of  implied  contracts. 

( I )  The  original  application  of  the  action  to  remedy  misfeasances 
in  breach  of  an  undertaking. 

In  the  second  half  of  the  fourteenth  century  the  rule  was 
established  that  a  liability  in  tort  arose  when  one  person  had 

1  Thomas  v.  Quatermaine  (1889)  18  Q.B.D.  per  Bowen,  L.J.,  at  pp.  698,  699 ; 
cp.  Kelly  V.  Metropolitan  Railway  Co.  [1895]  i  Q«B.  944;  Pollock,  Torts  chap, 
xiii. 

2  In  the  seventeenth  and  eighteenth  centuries  the  tendency  was  exactly  the 
reverse,  owing  to  the  convenience  of  the  action  of  assumpsit.  In  The  Circuiteers  : 
An  Eclogue  (see  L.Q.R.  i  232),  "  parts  of  which  may  now  almost  serve  as  a  sort  of 
valedictory  address  to  the  defunct  science  of  Special  Pleading,"  it  is  written — 

•'  Thoughts  much  too  deep  for  tears  subdue  the  court 
When  I  assumpsit  bring,  and  god-like  waive  a  tort." 
For   some  difficulties    which    have  arisen   in  consequence   of    this    practice    see 
below  449-450. 

3  It  is  a  little  difficult  to  define  the  exact  boundaries  of  trespass  and  deceit  on 
the  case;  but  generally,  as  Sir  John  Salmond  says  (Essays  in  Jurisprudence  208), 
•*  Trespass  was  applicable  only  10  the  case  of  damage  to  the  person  or  property  of 
the  plaintiff.     But  deceit  included  all  cases  in  which  the  plaintiff  had  suffered 


430    CONTRACT  AND  QUASI-CONTRACT 

caused  damage  to  another  by  the  manner  in  which  he  had  ful- 
filled a  duty  which  he  had  undertaken  (assumpsit)  to  perform. 
This  liability  was  enforced  by  the  special  variety  of  trespass  or 
deceit  on  the  case  which  came  to  be  known  as  the  action  of 
assumpsit.  The  original  scope  of  this  action  can  be  illustrated 
from  two  of  the  earliest  cases  on  this  subject  which  have  got 
into  the  books.  In  the  first  of  these  cases  the  plaintiff  complained 
that  the  defendant  had  undertaken  {emprisf)  to  carry  his  cattle 
over  the  Humber,  that  the  defendant  had  overloaded  his  boat, 
and  that  in  consequence  his  cattle  had  perished.  The  objection 
that  the  plaintiff  should  have  brought  covenant  was  overruled, 
and  the  court  held  that  overloading  the  boat  and  the  consequent 
drowning  of  the  cattle  was  a  trespass.^  The  second  case  comes 
from  the  year  1370.^  The  plaintiff  alleged  that  the  defendant 
undertook  {manucepif)  to  cure  his  horse,  and  that  he  did  his  work 
so  negligently  that  the  horse  died.  Again  the  objection  that 
the  proper  action  was  covenant  was  overruled.  The  gist  of  the 
action  was  held  to  be  the  negligence  which  had  caused  the  death 
of  the  horse.^  In  other  words,  the  action  sounded  in  tort  and 
therefore  trespass  on  the  case  was  the  appropriate  writ.  The 
principle  of  these  cases  was  well  summed  up  by  Newton  in  1436.^ 
*'  If  a  carpenter,"  he  said,  ''makes  a  covenant  with  me  to  make 
me  a  house  good  and  strong  and  of  a  certain  form,  and  he  makes 
me  a  house  which  is  weak  and  bad  and  of  another  form,  I  shall 
have  an  action  of  trespass  on  my  case.  So  if  a  smith  makes  a 
covenant  with  me  to  shoe  my  horse  well  and  properly,  and  he 
shoes  him  and  lames  him,  I  shall  have  a  good  action.  So  if  a 
doctor  takes  upon  himself  to  cure  me  of  my  diseases,  and  he 
gives  me  medicines,  but  does  not  cure  me,  I  shall  have  action  on 
my  case.  So  if  man  makes  a  covenant  with  me  to  plough  my  land 
in  seasonable  time,  and  he  ploughs  in  a  time  which  is  not  season- 
able, I  shall  have  action  on  my  case.  And  the  cause  is  in  all 
these  cases  that  there  is  an  undertaking  and  a  matter  in  fact 
beyond  the  matter  which  sounds  merely  in  covenant.  ...  In 
these  cases  the  plaintiffs  have  suffered  a  wrong."  Similarly 
deceit  upon  the  case  lay  where  a  man  expressly  warranted 
a  thing  sold,  and  the  thing  proved  to  be  other  than  as  warranted, 
to  the  damage  of  the  plaintiff.^     "  If,"  said  Brian,^  '*  a  man  sells 

injury  by  acting  in  reliance  on  the  defendant's  promise ;  "  obviously  on  some  facts 
either  might  lie ;  see  above  385-386. 

^22  Ass.  pi.  41  f.  94;  cp.  the  Register  ff.  105b,  108,  no,  nob. 

2Y.B.  43  Ed.  III.  Mich.  pi.  38. 

5  Belknap  said,  '•  Cest  accion  est  prise  pur  ce  que  vous  fists  vostre  cure  ita 
negligenter,  issint  que  le  chival  morust." 

^  Y.B.  14  Hy.  VI.  p.  18  ;  cp.  Ames's  summary,  Lectures  130. 

5  Above  408.  fi  Y.B.  11  Ed.  IV.  Trin.  pi.  10. 


XV  TH  TO  XVIITH  CENTURIES        431 

me  seed  and  warrants  it  good,  and  it  is  bad,  or  warrants  that  it 
is  seed  of  a  certain  county,  and  it  is  not,  I  shall  have  action  of 
deceit."  It  may  be  that  a  vendor  who  sold  goods  knowing  that 
he  had  no  title  to  them  was  liable  without  express  warranty  in 
action  for  deceit.^  But  apart  from  this,  unless  the  vendor  was 
under  a  public  duty  by  virtue  of  his  calling  to  warrant  the 
quality  of  the  goods  sold,^  he  was  not  liable  in  the  absence  of 
an  express  warranty.^  If  the  purchaser  was  deceived  it  was  his 
own  folly. 

The  principle  of  these  cases  was  easily  extended  to  other 
cases  in  which  the  defendant  had  damaged  the  plaintiff  by  acts 
of  a  fraudulent  character  contrary  to  an  express  undertaking. 
In  the  case  of/.  Somerton — a  case  of  the  year  1433  which  was 
several  times  argued  * — the  facts  were  as  follows :  the  plaintiff 
had  retained  the  defendant  to  be  his  counsel  in  the  negotiations 
for  the  purchase  of  a  manor,  and  had  agreed  to  pay  him  a  fixed 
sum.  The  defendant  had  by  collusion  become  counsel  for 
another,  betrayed  the  secrets  of  his  first  employer,  and  bought 
the  manor  for  his  second  employer.^  There  was  much  discussion 
as  to  whether  the  action  lay,  and  the  result  does  not  appear ;  but 
there  were  many  opinions  expressed  which  would  seem  to  show 
that  some  of  the  judges  thought  that  it  should  be  decided  in  the 
same  manner  as  if  the  defendant  had  expressly  warranted  to  the 
plaintiff  that  he  should  have  the  manor  and  had  not  got  it 
for  him.^  The  dealing  with  a  third  person,  after  contracting  to 
be  of  counsel  with  a  certain  employer,  was,  they  held,  an  act 
which  was  wrongful  because  it  was  contrary  to  the  undertaking 
involved  in  a  retainer.  Therefore  it  was  as  much  a  deceit  as  the 
breach  of  an  express  undertaking  such  as  a  warranty.  If  there 
had  been  a  retainer  as  alleged,  and  merely  a  failure  to  get  the 
manor  without  any  specific  positive  breach  of  duty  to  his  first 
employer,  there  would  have  been  no  cause  of  action.  The  case 
would  have  been  analogous  to  one  in  which  a  man  promises 
certain  services  or  certain  things,  but  makes  no  warranty  as  to 
the  result  of  his  services  or  as  to  the  quality  of  the  things. 
Martin,  J.,  however,  put  the  case  differently  and  more  correctly. 
A  warranty  that  a  man  will  do  a  thing  is  really  an  independent 
contract  of  guarantee.  It  is  quite  different  to  warranties  as  to  a 
present  fact  made,   e.g.   by  a  vendor  as  to  the  quality  of  his 

^42  Ass.  pi.  8  f.  259;  above  407;  Ames,  Lectures  137;  Y.B.  9  Hy.  VI. 
Mich.  pi.  37. 

2  Above  386. 

3  Y.B.  9  Hy.  VI.  Mich.  pi.  37;  Y.B.  11  Ed.  IV.  Trin.  pi.  10. 

4  Y.B.  II  Hy.  VI.  Hil.  pi.  10;  Pasch,  pi.  i ;  Trin.  pi.  26. 
»See  the  writ  Y.B.  11  Hy.  VI.  Pasch.  p!.  i  (p.  25). 

«Y.B.  II  Hy.  VI.  Hil.  pi.  10,  and  Trin.  pi.  2^  per  Paston,  J. 


432    CONTRACT  AND  QUASI-CONTRACT 

goods.^  Nor  was  this  case  similar  to  a  promise  to  act,  and  a 
breach  of  that  promise  by  acting  negligently  in  the  attempt  to 
fulfil  the  promise ;  ^  for  here  there  was  no  act  done  at  all  in 
pursuance  of  the  promise.  In  this  case  it  was  either  independent 
parol  guarantee  or  nothing.  But  no  action  could  be  had  on  such 
a  parol  guarantee  without  deed.^  Therefore  breach  of  such 
guarantee  gave  no  ground  of  action  in  this  case.  The  only 
possible  ground  of  action  was  the  wrongful  act  involved  in  the 
fact  that  the  defendant  had  become  counsel  for  another.* 

In  all  these  cases  of  trespass  or  deceit  on  the  case,  the 
ground  of  action  was  a  tort  pure  and  simple.  The  plaintiff 
sued  for  a  physical  injury  to  his  person  or  property  or  for  a 
fraudulent  injury  to  his  rights  caused  by  some  active  misconduct 
on  the  part  of  the  defendant ;  and,  as  Ames  says,  *'  the  gist 
of  the  action  being  tort  not  contract,  a  servant,  a  wife,  or  a 
child  who  is  injured  may  sue  a  defendant  who  was  employed 
by  the  master,  the  husband,  or  the  father."  ^  It  is  true  that 
in  some  of  these  cases  there  would  have  been  no  liability  to 
compensate  for  the  damage  caused  if  there  had  not  been  an 
undertaking ;  but  it  was  not  the  breach  of  the  undertaking 
which  was  the  ground  of  the  action.  The  ground  of  the  action 
was  the  damage  caused  by  a  wrongful  act.  The  fact  that  the 
defendant  had,  in  these  cases,  expressly  undertaken  not  to  do 
acts  of  that  class  supplied  a  reason  why  the  act  was  wrongful.^ 
It  did  not  make  the  undertaking  the  ground  of  the  action. 
As  Cotesmore  said  in  Somertons  Case,'^  "matter  which  lies 
in  covenant  may  by  matter  arising  ex  post  facto  become 
deceit ;  for  though  I  employ  you  to  purchase  to  yourself  a 
manor,  and  you  fail  to  do  so,  I  shall  have  no  action  against 
you  unless  the  contract  is  by  deed.  So  if  I  undertake  to  pay 
you  ;^20  without  deed  and  do  not  do  so,  you  will  have  no 
cause  of  action,  for  the  undertaking  sounds  in  covenant  .  .  . 
yet  when  a  man  who  is  counsel  to  one  becomes  counsel  to 
another,  this  is  a  deceit,  and  changes  what  was  before  merely 
a  covenant  between  the  parties  into  a  deceit,  for  the  which 
deceit  he  shall  have  action  on  his  case." 

^  This  is  clearly  explained  in  Y.B.  ii  Ed.  IV.  Trin.  pi.  lo,  where  the  principle 
is  accepted  as  settled  law. 

2  Above  430.  8  Above  417. 

^Y.B.  II  Hy.  VI.  Hil.  pi.  10,  ^^ Newton. — II  est  bon  issue  pur  le  defendant  a 
dire  que  il  fist  son  devoir  a  luy  a  purchaser  ce  manoir  solonque  le  retenir  avandit, 
sans  ceo  que  il  ad  discovre  son  consail  et  deviendre  de  counsail  d'un  autre.  Paston. 
— Nient  contristant  cest  pie  il  reliera  sur  vous,  entant  que  il  n'est  dedit  que  il  gar- 
rante  a  luy  a  purchaser  cest  manor  ;  en  quel  cas  il  duist  luy  faire  avoir  ce.  Martin. 
— II  n'aura  unques  accion  de  son  garran*^  sans  fait ;  issint  c'est  le  cause  de  sa  accion 
que  il  est  devenu  del  counsail  ove  un  autre,  etc.,  et  quand  eel  est  traverse,  tout  que 
est  le  cause  de  son  accion  per  cest  maner  d'accion  est  respondu." 

^  Lectures  131.  "  Above  430. 

7  Y.B.  II  Hy.  VI.  Hil.  pi.  10;  above  431. 


XVTH  TO  XVIITH  CENTURIES         433 

It  is  clear  that  many  of  these  cases  are  capable  of  being 
regarded  as  breaches  of  contract — we  at  the  present  day  would 
think  it  the  most  natural  way  to  regard  them.  As  Newton 
said  in  Somertons  Case^  "This  is  a  writ  of  trespass  on  the 
case,  but  it  sounds  in  a  manner  in  covenant."  We  have  al- 
ready seen  that  one  of  the  most  usual  defences  to  such  actions 
was  the  defence  that  the  action  was  for  breach  of  contract, 
and  therefore  should  have  been  brought  by  writ  of  covenant.^ 
It  was  not  difficult,  however,  to  decide  in  the  class  of  cases 
which  I  have  just  discussed  that  an  active  misfeasance,  though 
it  was  in  breach  of  an  undertaking,  was  sufficient  to  give  rise 
to  a  liability  in  tort.  But  the  same  reasoning,  as  Cotesmore 
and  Martin  pointed  out  in  Somerton^s  Case^  does  not  necessarily 
apply  to  a  mere  non-feasance.  If  I  undertake  to  act,  and 
omit  to  act  to  the  damage  of  the  other  party,  can  it  be  said 
that  I  have  done  anything  which  will  be  sufficient  to  make 
me  liable  to  an  action  of  trespass  or  deceit  on  the  case?  In 
Henry  IV. 's  reign  this  distinction  was  clearly  'seen,  and  it 
was  held  that  there  was  no  liability  where  the  damage  was 
caused  merely  by  non-feasance.  The  report  of  the  earliest 
of  these  cases  *  runs  as  follows  :  "  Laurence  Wotton  brought 
a  writ  on  his  special  case  against  Thomas  Brinth  which  ran 
as  follows :  Whereas  the  said  Thomas  had  undertaken  at 
Grimsby  well  and  faithfully  to  rebuild  certain  houses  of  the 
said  Laurence  within  a  certain  time,  nevertheless  the  said 
Thomas  has  neglected  to  rebuild  the  houses  of  the  said 
Laurence  within  the  aforesaid  time,  to  the  damage  of  the 
said  Laurence  ^lo.  Tirwit. — Sir,  you  see  well  how  that 
he  has  counted  of  a  covenant,  and  offers  no  evidence  of  the 
covenant — judgment.  Gascoigne. — Now  that  you  answer  nothing 
we  demand  judgment  and  pray  our  damages.  Tirwit. — This 
is  simply  a  covenant.  Bryn, — So  it  is ;  and  yet  if  he  had 
counted,  or  in  the  writ  mention  had  been  made,  that  the 
work  had  been  begun  and  then  by  negligence  not  finished, 
it  would  have  been  otherwise.  .  .  .  Rikhill,  J. — Seeing  that 
you  have  counted  on  a  covenant  and  offered  no  evidence  of 
it,  take  nothing  by  your  writ  and  be  in  mercy."  So  in  another 
case  of  the  same  reign,^  also  an  action  against  a  carpenter  for 
failure  to  build  a  house,  Thirning  said,  in  answer  to  an  argu- 
ment that  an  action  would  lie  if  he  had  built  badly,  "  Certainly 
it  would  lie  in  that  case,  because  he  would  then  answer  for 
the  wrong  which  he  had  done,  but  when  a  man  makes  a  covenant, 

lY.B.  II  Hy.  VI.  Trin.pl.  26. 

2  Above  430.  3  Above  432. 

4Y.B.  2  Hy.  IV.  Mich.  pi.  9.  ^Y.B.  11  Hy.  IV.  Mich.  pi.  60. 

VOL.   III.— 28 


434    CONTRACT  AND  QUASI-CONTRACT 

and  does  nothing  under  that  covenant,  how  can  you  have  an 
action  against  him  without  a  deed?"  Early  in  Henry  VI. 's 
reign  (1425)  the  opinion  of  Martin,  J.,  was  to  the  same  effect;^ 
and  in  Somertons  Case  he  insisted  on  the  same  distinction. 
"  The  plaintiff,"  he  said,  "  will  never  have  an  action  for  breach 
of  the  defendant's  undertaking  to  be  of  counsel  with  him 
without  a  deed  :  the  real  ground  of  his  action  is  that  the 
defendant  has  become  of  counsel  with  another."^ 

(2)   The  extension  of  the  action  to  remedy  certain  kinds  of  non- 
feasance in  breach  of  an  undertaking. 

Notwithstanding  this  strong  current  of  authority,  it  is 
clear  from  certain  decisions  and  dicta  that  there  was  a  growing 
inclination  among  some  of  Henry  VI. *s  judges  to  hold  that  a 
mere  non-feasance  in  breach  of  an  undertaking  gave  a  good 
cause  of  action  in  trespass  or  deceit  on  the  case.  The  reasons 
for  this  inclination  were  the  great  inconvenience  of  the  absence 
of  remedy  on  executory  contracts  made  without  deed,  and, 
in  the  latter  part  of  the  period,  the  fear  that  litigants  might 
apply  to  the  chancellor  to  supply  this  much  felt  want.  In  the 
case  already  referred  to,  reported  in  1425,  some  of  the  judges 
were  evidently  inclined  to  hold  that  the  mere  failure  to  perform 
an  agreement  was  a  good  cause  of  action  in  trespass  on  the 
case;^  and  in  1436*  Faston  and  Juyn,  JJ.,  laid  the  principle 
down  in  the  broadest  of  terms.  The  report  runs  as  follows  : 
**  Paston. — It  is  said  that  if  a  carpenter  takes  upon  himself 
to  make  me  a  house,  and  does  not  do  so,  I  shall  have  no 
action  upon  my  case ;  Sir,  I  say  that  I  shall.  And,  Sir,  if 
in  your  hostelry  a  smith  makes  a  covenant  with  me  to  shoe 
my  horse,  and  he  does  not  do  so,  and  I  move  on,  and  my 
horse  has  no  shoes,  and  is  injured  for  want  of  shoes,  I  shall 
have  action  on  my  case.  And  if  you  who  are  Serjeant  at 
law  take  upon  yourself  to  plead  my  plea,  and  -do  not  do  it, 
or  do  it  in  another  manner  to  that  which  I  have  directed,  so 
that  I  lose,  I  shall  have  action  on  my  case.  .  .  .  fuyn. — 
Agreed,  and  as  Paston  has  said,  if  the  smith  does  not  shoe 
my  horse  I  shall  have  an  action  just  as  much  as  if  he  had 
shode  him  and  lamed  him ;  for  all  that  is  dependent  upon 
the  agreement  and  merely  accessory  to  it;  and  as  I  have  an 
action  upon  that  which  is  accessory,  I  shall  have  an  action 
on  the  principal.  Paston. — That  is  very  well  said."  It  is 
clear,    therefore,    that    these    two  judges  held  that  the   breach 

1  Y.B.  3  Hy.  VI.  Hil.  pi.  33.  2  Above  432. 

3  Y.B.  3  Hy.  VI.  Hil.  pi.  33  per  Babington  and  Cokain,  JJ. 
4Y.B.  i4Hy.  VI.  pp.  18,  19. 


XVTH  TO  XVIITH  CENTURIES         435 

of  an  undertaking,  whether  by  misfeasance  or  by  non-feasance, 
v/^as  actionable,  and  that  the  gist  of  the  action  was  not  a  tort, 
but  the  damage  flowing  from  the  breach  of  the  undertaking. 

But  this  principle  was  far  too  large.  It  meant,  as  Martin 
put  it,  "  that  one  shall  have  trespass  for  any  breach  of  covenant 
in  the  world."  ^  In  other  words,  its  acceptance  would  have 
made  it  impossible  to  distinguish  between  agreements  which 
the  law  would  enforce  and  those  which  it  would  not  enforce. 
The  law  would  have  erred  on  the  side  of  liberality  as  much 
as  it  had  formerly  erred  on  the  side  of  rigidity.  No  doubt 
there  was  urgent  need  to  give  protection  to  some  classes  of 
executory  contracts ;  and  obviously  the  existing  remedies  must 
be  extended  in  such  a  way  that  they  should  be  capable  of 
redressing  not  only  misfeasances,  but  also  some  kinds  of  non- 
feasances which  amounted  to  breaches  of  contract.  The  prob- 
lem was  to  find  a  test  which  would  enable  a  distinction  to 
be  drawn  between  those  agreements  the  non-performance  of 
which  would  give  ground  for  an  action,  and  those  agreements 
the  non-performance  of  which  would  not  give  ground  for  an 
action.  The  test  ultimately  reached  was  obtained  by  asking 
whether  the  damage  resulting  from  the  breach  of  the  agree- 
ment was  caused  solely  by  the  breach  of  the  agreement,  or 
whether,  in  consequence  and  on  the  faith  of  the  agreement, 
the  plaintiff  had  been  led  to  change  his  position,  so  that  the 
damage  which  he  suffered  was  caused  not  merely  by  the 
breach  of  the  agreement,  but  also  by  the  change  of  position 
which  the  making  of  the  agreement  had  induced.  In  the 
first  case  mere  non-feasance  in  breach  of  an  agreement  was 
not  actionable.  In  the  second  case  it  was.  But  this  general 
test  of  the  actionability  of  agreements  was  only  gradually 
reached.  I  must  now  endeavour  to  trace  the  steps  which  led 
up  to  it. 

We  can  take  as  our  starting-point  a  case  of  the  year  1442.^ 
A  bill  of  deceit  was  brought  in  the  King's  Bench  against  one 
John  Doight  The  plaintiff  counted  that  he  bargained  with 
the  said  John  for  the  purchase  from  him  of  so  much  land  for 
;^ioo  to  him  paid,  and  that  the  said  John  had  enfeoffed  one 
A  of  the  same  land,  and  had  so  deceived  him.  Clearly  this 
was  a  case  in  which  the  damage. resulted  to  the  plaintiff  from 
a  non-feasance.  For,  as  it  was  pointed  out,  to  enfeoff  a  stranger 
and  not  to  enfeoff  the  plaintiff  was  the  same  thing  ;    and   if 

ly.B.  3  Hy.  VI.  Hil.  pi.  33;  cp.  Ames,  Lectures  139;  as  Ames  says,  it  is 
important  in  all  these  cases  to  note  that  "  covenant "  was  often  used  in  the 
sense  of  agreement. 

2Y.B.  20Hy.VI.Trin.pl.  4. 


486    CONTRACT  AND  QUASI-CONTRACT 

no  right  of  action  lay  for  not  enfeoffing  the  plaintiff,  none 
could  lie  for  enfeoffing  a  stranger.^  The  defendant  was,  in 
fact,  at  perfect  liberty  to  enfeoff  a  stranger  if  the  contract  was 
not  binding.  On  the  other  hand,  there  were  two  reasons 
why  mere  non-feasance  in  this  case  should  be  held  to  be 
actionable.  (i)  This  was  a  case  in  which  the  plaintiff  had 
paid  his  money  and  had  therefore  a  moral  right  to  the  land. 
It  was  just  this  moral  right  that  the  chancellor  came  to  recog- 
nize by  holding  that  the  vendor  in  such  a  case  stood  seised 
of  the  land  to  the  use  of  the  purchaser  ;  ^  and,  even  if  the 
chancellor  was  not  yet  prepared  to  decide  that  the  vendor  held 
in  trust,  he  was  clearly  prepared  to  give  relief  in  equity  to 
persons  who  had  suffered  a  detriment  by  acting  on  the  faith 
of  such  a  promise  to  convey  land.^  If  the  common  law  courts, 
therefore,  were  to  compete  successfully  with  the  Chancery  it 
was  in  just  such  a  case  as  this  that  they  ought  to  supply  a 
remedy,  (ii)  A  kind  of  reason  could  be  found  for  granting 
the  action  in  an  application  of  the  law  as  to  the  sale  of  chattels. 
We  have  seen  that  if  a  man  contracted  to  buy  specific  chattels 
for  a  fixed  price,  and  paid  the  money,  he  could  bring  detinue 
for  the  chattels.  On  the  other  hand,  the  vendor  who  in  such 
a  case  had  handed  over  the  chattels  could  bring  debt  for 
the  price.*  But  a  purchaser  who  had  contracted  to  buy  land 
and  had  paid  the  price  had  no  such  action  as  detinue  for  the 
land.  It  was  argued,  therefore,  that  if  in  such  a  case  the 
purchaser  had  no  right  of  action  for  damages  the  law  would 
be  grossly  unfair;  for  in  the  converse  case  the  vendor  who 
had  sold  the  land  and  conveyed  it  could  clearly  bring  debt 
for  the  price.  ^  It  was  therefore  allowed  that  in  such  a  case 
deceit  on  the  case  lay.^ 

"^Ascough,  atfr.,  said,  *' Entre  nostre  cas  si  defendant  ust  retenu  la  terre  en 
sa  main  sans  feoffment  fait,  donques  le  pleintiff  n'aura  forsque  seulement  bref  de 
Covenant ;  et  jeo  entend  tout  un  cas  quand  le  defendant  fist  feoffment  a  un 
estranger." 

2  It  is  not  clear  that,  in  the  fifteenth  century,  the  chancellor  recognized  that 
a  bargain  and  sale  transferred  the  use,  Ames,  Lectures  239 — in  Y.B.  21  Hy. 
VII.  Hil.  pi.  30  there  is  a  diversity  of  opinion,  and  in  Y.B.  20  Hy.  VII.  Mich, 
pi.  20  the  point  is  treated  as  open  ;  Bk.  iv.  Pt.  I.  c.  2. 

^Wheler  v.  Huchynden,  Cal.  Ch.  ii  ii ;  the  facts  of  the  case  were  that  the 
plaintiff,  relying  on  a  promise  by  the  defendant  to  convey  land  to  him,  incurred 
expenses  in  taking  legal  advice,  and  that  the  defendant  had  then  refused  to 
convey ;  the  date  of  the  case  is  between  1377  and  1390  ;  see  Ames,  Lectures 
143-144,  and  references  there  given  to  two  other  cases  cited  by  Mr.  S.  R.  Bird 
in  the  Antiquary  iv  185,  and  v  38. 

*  Above  355-356. 

°Y.B.  20  Hy.  VI.  Trin.  pi.  4;  it  is  not  distinctly  stated  in  this  case  what  the 
decision  was,  but  the  argument  seems  to  tend  in  the  direction  stated  in  the  text, 
and  to  go  even  further ;  below  438  n.  3. 

SY.BB.  2  Hy.  VII.  Hil.  pi.  15;  3  Hy.  VII.  Mich.  pi.  20;  it  is  not  stated  in 
these  cases  that  the  price  was  paid  when  the  contract  was  made ;  but  cp.  Y.B. 


XVTH  TO  XVIITH  CENTURIES         437 

If  we  look  at  the  second  of  these  reasons  for  thus  deciding 
this  case  from  the  point  of  view  of  the  older  law,  we  must  allow 
that  it  was  somewhat  specious.  The  vendor  who  had  sold  land 
and  conveyed  it  could  bring  debt  for  the  price,  not  because  any 
contract  had  been  broken,  but  because  the  grant  of  the  land  was 
quid  pro  quo  for  the  grant  of  the  money.  ^  It  is  quite  true  that 
the  purchaser  who  had  contracted  to  buy  land  and  who  had  paid 
the  price  had  no  right  of  action  for  damages  for  breach  of  contract. 
But,  as  we  have  seen,  there  was  no  right  of  action  for  breach  of 
contract  in  the  converse  case.  Nor  was  there  any  logical  in- 
justice in  not  allowing  an  action  in  such  a  case  because  there  is 
some  authority  for  saying  that  a  purchaser  who  had  paid  for  his 
land,  and  had  not  got  it,  could  sue  in  debt  to  get  back  his  money. ^ 
But  though  we  may  admit  that  the  decision  was,  from  the  point 
of  view  of  the  older  law,  not  strictly  logical,  it  was  very  reason- 
able from  the  point  of  view  of  the  larger  conceptions  of  contract 
which  were  coming  to  the  front ;  and  it  was  a  very  necessary 
decision  if  the  competition  of  the  Chancery  was  to  be  successfully 
met. 

Two  of  the  judges  (Newton  and  Prisot,  C.J  J.)  were  pre- 
pared to  go  even  further  than  this,  and  to  hold  that  a  mere 
contract  to  sell  land  at  a  fixed  price  (though  that  price  had  not 
been  paid)  would  give  to  the  purchaser  a  right  to  sue  in  case  if 
the  land  were  not  conveyed,  and  the  vendor  a  right  to  sue  in  debt 
if  the  money  were  not  paid.  In  other  words,  they  were  prepared 
to  hold  that  a  wholly  executory  contract  to  sell  land  was  action- 
able. That  there  was  some  tendency  to  take  this  view  appears 
probable  from  the  fact  that  in  the  Register  (described  above), 
which  dates  from  the  early  years  of  Henry  VI. 's  reign,  there  is 
a  precedent  of  a  writ  for  beginning  such  an  action.^     It  may  be 

21  Hy.  VII.  Mich.  pi.  66  where  Fineux,  C.J.,  says,  *'  Et  issint  est  si  on  fait 
bargain  ove  moy  que  jeo  aura  sa  terre  a  moy  .  .  .  pur  xx  li.  .  .  .  si  jeo  pay  a  luy 
les  XX  li.,  si  il  ne  veule  faire  estat  a  moy  accordant  al  covenant,  jeo  aurai  Accion 
sur  mon  cas,  et  nebesoigne  suit  subpoena;  "  cp.  below  439-440/^)'  Frowyck,  C.J. 

-  Vol.  ii  368 ;  above  356,  421-423. 

2Y.B.  21,  22  Ed.  I.  (R.S.)  598-600,  ^*  Metingham. — If  a  covenant  be  made 
between  Robert  de  Hertford  and  me  that  he  shall  enfeoff  me  of  a  carucate  of  land 
and  put  me  in  seisin  at  Easter  in  consideration  of  thirty  marks ;  and  Easter  comes 
and  he  does  nothing  for  me ;  in  that  case  I  may  choose  whether  I  will  demand  the 
money  by  writ  of  Debt,  or  demand  by  writ  of  Covenant  that  he  perform  his  covenant 
with  me  in  respect  of  the  land." 

3  Vol.  ii  App.  Ve,  f.  72b  De  ntessuagio  cmpto :  *' Quare  cum  idem  A  unum 
messuagium  cum  pertinenciis  in  N  de  prefato  B  pro  quadam  pecunie  summa  eidem 
B  ad  certos  terminos  solvenda  apud  N  emisset  et  idem  B  prasfatum  A  in  seisinam 
messuagii  predicti  infra  certum  tempus  ponere  ibidem  assumpsisset  predictus  B 
ipsum  A  in  seisinam  ejusdem  messuagii  infra  tempus  predictum  ponere  non  curavit 
ad  dampnum,  etc.";  this  precedent  does  not  appear  in  the  printed  register;  on  the 
same  page  there  are  two  other  writs  for  non-feasance,  one  for  not  building,  and  the 
other  for  not  repairing  a  house,  after  agreeing  to  do  so  for  a  fixed  price;  in  the 
former  case  the  money  is  stated  to  have  been  paid. 


438    CONTRACT  AND  QUASI-CONTRACT 

observed  that  if  the  common  law  could  have  sanctioned  this  it 
would  have  anticipated  the  equity  of  the  chancellor.  For  it  was 
not  yet  clear,  even  when  the  money  was  actually  paid,  that  the 
chancellor  would  compel  the  vendor  to  hold  to  the  use  of  the 
purchaser.^  But  the  reasons  which  were  given  for  this  conclusion 
were  clearly  illogical.  They  rested,  in  fact,  upon  a  misapplied 
application  of  the  law  as  to  the  sale  of  chattels.^  If  a  man 
agreed  to  sell  chattels  for  a  fixed  price  the  vendor  could  bring 
debt  for  the  price,  and  the  purchaser  detinue  for  the  chattels. 
The  grant  of  the  price  was  quid  pro  quo  for  the  grant  of  the  right 
to  possess  the  chattels.  It  was  assumed  that,  in  the  case  of  land 
as  in  the  case  of  chattels,  the  mere  promise  to  pay  the  fixed  sum 
could  be  sued  on  by  action  of  debt ;  and  it  was  argued  that  as 
the  purchaser  was  liable  in  debt  for  the  price,  he  had  a  clear 
equitable  right  to  the  land  ;  and,  as  he  had  no  other  action  (such 
as  covenant  or  detinue),  he  must  be  allowed  to  sue  by  this  action 
of  deceit  on  the  case.^  As  Ames  says,  this  argument  rested  on 
a  false  premise.^  No  action  of  debt  lay  for  the  price  under  a 
mere  agreement  to  sell  land,  for  there  was  no  quid  pro  quo. 
The  reason  why  debt  lay  for  the  vendor  in  the  case  of  an  agree- 
ment to  sell  chattels  was  the  fact  that  the  purchaser  could  sue 
in  detinue.  If  the  purchaser  could  bring  no  such  action  the 
proper  conclusion  to  draw  was  that  the  vendor  had  no  action  of 
debt  for  the  money.^  This  reasoning  is,  therefore,  as  Ames  calls 
it,  a  departure  from  strict  principle.  But  I  should  like  to  suggest 
that  it  is  not,  as  he  calls  it,  merely  an  "  idiosyncrasy  "  of  the 
judges  who  adopted  it.  It  was  a  means  of  arriving  at  a  decision 
which  was  expedient  if  the  common  law  courts  were  to  retain  a 
jurisdiction  which  the  chancellor  might  otherwise  have  absorbed. 
We  must  not  expect  to  find  all  the  decisions,  still  less  all  the 
reasons  for  the  decisions,  quite  logical  and  consistent  at  a  time 
when  the  courts  were  seeking  to  find  a  liberal  principle  by  means 
of  which  the  enforceability  or  unenforceability  of  agreements  could 

1  Above  436  n.  2.  -  Above  355356. 

3  Y.B.  20  Hy.  VI.  Trin.  pi.  4  Newton  said,  "  Quand  le  pleintif  avoit  fait  plein 
bargain  ove  le  defendant,  maintenant  le  defendant  purra  demander  ceux  deniers 
per  bref  de  Debt,  et  en  conscience  et  en  droit  le  pleintiff  doit  avoir  la  terre,  mesque 
le  propriete  ne  pent  passer  en  luy  par  Ley  sans  livere  del  seisin.  Done  ceo  serra 
merveillous  Ley  que  un  bargain  serra  parfait  sur  que  I'un  party  serra  lie  par  action 
de  Debte,  et  que  il  serra  sans  remedie  envers  I'autre  ;  par  que  I'accion  de  Deceit 
gist  bien  ;  "  we  find  the  same  reasoning  in  Y.BB.  19  Hy.  VI.  Mich.  pi.  47  (p.  24) ; 
22  Hy.  VL  Hil.  pi.  29 ;  37  Hy.  VI.  Mich.  pi.  18 ;  above  436. 

*  Lectures  140  n.  3. 

8  This  is  pointed  out  by  Fortescue,  in  Y.B.  20  Hy.  VI.  Trin.  pi.  4;  after 
admitting  that  debt  lies  for  the  vendor  and  detinue  for  the  purchaser  on  a  contract 
to  sell  a  chattel  for  a  fixed  pries,  he  says,  "  Mes  n'est  issint  en  notre  cas,  car  mesque 
le  pleintiff  ad  droit  d'avoir  celle  terre  en  conscience,  uncore  la  terre  ne  passe  sans 
livere." 


XVTH  TO  XVIITH  CENTURIES        439 

be  tested.^  It  is  clear  that  these  judges  wished  to  find  some 
principle  by  means  of  which  they  could  enforce  some  purely 
executory  contracts.  They  hit  upon  the  idea  that  the  test  should 
be  the  question  whether  or  no  the  plaintiff  had  come  under  some 
legal  liability  to  the  defendant.  But  this  was  really  an  impos- 
sible test  because  it  involved  a  circular  argument.  Those  who 
used  this  argument  began  by  assuming  a  legal  liability  to  be  sued 
in  debt  which  did  not  exist ;  and  they  argued  from  it  to  a  liability 
to  be  sued  in  case.  Whether  or  not  in  the  fifteenth  century  the 
reasoning  of  these  judges  was  accepted  in  the  special  case  of  a 
contract  to  sell  land,  it  is  perhaps  impossible  to  say  certainly. 
Most  probably  it  was  not.^  It  was  not  till  the  following  century, 
and  by  a  somewhat  similar  chain  of  reasoning  that  the  law  found 
itself  able  to  effect  substantially  the  object  of  these  judges  by  dis- 
tinguishing satisfactorily  between  the  executory  contracts  which 
it  would  and  the  executory  contracts  which  it  would  not  enforce.^ 
This  case,  then,  which  was  followed  by  other  similar  cases, ^ 
established  the  proposition  that  if  A  agrees  to  sell  land  to  B  for 
a  sum  of  money  and  B  pays  the  money,  and  A  conveys  the 
land  to  another,  B  may  sue  A  by  an  action  of  deceit  on  the  case. 
It  was  no  long  step  to  take  to  say  that  if,  in  a  similar  case,  A 
simply  did  not  convey  the  land,  a  similar  action  would  lie ;  ^  and 
obviously  this  reasoning  will  apply  to  other  contracts  besides 
those  for  the  sale  of  land.  If,  then,  money  was  paid  in  pursu- 
ance of  any  contract,  an  action  on  the  case  lay  against  the  other 
party  if  he  did  not  perform  his  part  of  the  contract.  These  con- 
clusions follow  logically  from  the  case  which  we  have  just  dis- 
cussed ;  but  here,  again,  it  is  probable  that  the  competition  with 
the  Chancery  exercised  a  liberalizing  influence.^  That  it  was 
under  these  conditions  that  an  action  on  the  case  lay  for  non- 
feasance we  can  see  from  a  statement  by  Frowyck,  C.  J.,  in  1 504.'^ 
"If,"  he  says,  "  I  sell  you  ten  acres  of  my  land  parcel  of  my 
manor  and  then  make  a  feoffment  of  my  manor,  you  shall  have 

^  Judged  by  the  law  as  afterwards  settled,  some  of  the  Chancery  decisions  at 
this  period  go  too  far  in  upholding  agreements,  Ames,  Lectures,  144  n.  6. 

2  Above  438  n.  5  ;  the  fact  that  the  writ  noted  above  437  n.  3  does  not  appear 
in  the  printed  register  supports  this  conclusion. 

3  Below  444-445.  ^  Above  436  n.  6. 
®Y.B.  21  Hy.  VII.  Mich.  pi.  66,  above  436  n.  6. 

^  See  Appelgarth  v.  Sergeantson  (1438)  i  Cal.  Ch.  xli — the  facts  are  curious  ; 
the  plaintiff  alleged  that  the  defendant  "  sought  upon  hir  to  have  hir  to  wyfe,  desir- 
ing to  have  of  hir  certaine  golde  to  the  some  of  xxxviZi  for  costes  to  bee  made  of 
their  marriage,  and  to  employ  in  marchandise  to  his  encrease  and  profit  as  to  hir 
husbande ;  "  she  trusting  him,  "  nor  desiring  of  him  eeny  contract  of  matrymogne," 
gave  him  the  money ;  he  has  married  another  woman  and  will  not  give  it  up ;  see 
also  Select  Cases  in  Chancery  (S.S.)  Nos.  119  (1417-1424)  and  128  (1422-1426). 

■^  Keilw.  77,  78  pi.  25,  cited  Ames,  Lectures  142  n.  i ;  see  Street,  Foundations  of 
Legal  Liability  ii  33  n. 


440    CONTRACT  AND  QUASI-CONTRACT 

an  action  on  the  case  against  me,  because  I  received  your  money, 
and  in  that  case  you  have  no  other  remedy  against  me.  And  so, 
if  I  sell  you  my  land  and  covenant  to  enfeoff  you  and  do  not, 
you  shall  have  a  good  action  on  the  case,  and  this  is  adjudged.^ 
.  .  .  And  if  I  covenant  with  a  carpenter  to  build  a  house,  and 
pay  him  ;^20  for  the  house  to  be  built  by  a  certain  day,  now  I 
shall  have  a  good  action  on  my  case,  because  of  payment  of 
money,  and  still  it  sounds  only  in  covenant  and  without  pay- 
ment of  money  in  this  case  no  remedy,  and  still  if  he  builds  it 
and  misbui!ds,  action  on  the  case  lies.  And  also  for  non-feas- 
ance, if  money  paid,  case  lies." 

It  was  inevitable  that,  when  the  law  had  reached  this  point, 
some  further  generalization  should  be  made  of  the  cases  in  which 
an  action  on  the  case  for  non-feasance  would  lie.  Such  a 
generalization  was  needed,  just  as  in  an  earlier  day  the  general- 
ization of  the  conditions  under  which  an  action  of  debt  would  lie 
had  been  needed  and  ultimately  effected  by  the  doctrine  of  quid 
pro  quo.  Indeed,  as  we  shall  now  see,  the  latest  developments 
in  the  doctrine  of  quid  pro  quo  ^  probably  suggested  the  general- 
ization effected  for  the  competence  of  these  actions  on  the  case 
for  non-feasance. 

As  the  law  stood  at  the  end  of  the  mediaeval  period  the  con- 
dition precedent  for  success  in  an  action  on  the  case  for 
damages  for  non-feasance  was  the  fact  that  the  plaintiff  had  paid 
money  under  the  agreement.  But  should  not  any  other  detri- 
ment suffered  by  the  plaintiff  on  the  faith  of  the  promise  be  as 
good  a  reason  for  allowing  him  to  sue  in  case  as  the  payment  of 
money  ?  It  was  recognized  that  this  was  so  in  two  cases  of 
Henry  VIII.'s  reign.^  It  was  held  in  those  cases  that  if  A  said 
to  B,  ''Supply  goods  to  C,  and  if  he  (C)  does  not  pay  I  will," 
and  B  supplied  the  goods,  B  could  sue  A — a  decision  which,  as 
Ames  puts  it,  "  introduced  the  whole  law  of  parol  guarantee."  * 
Thus  we  find  it  stated  in  The  Doctor  and  Student  ^  that  *'  if  he  to 
whom  the  promise  is  made  have  a  charge  by  reason  of  the 
promise  which  he  hath  also  performed,  then  in  that  case  he  shall 
have  an  action  for  that  thing  that  was  promised,  though  he  that 
made  the  promise  have  no  worldly  profit  by  it.  As  if  a  man  say 
to  another.  Heal  such  a  poor  man  of  his  disease,  or  make  an 
highway,  and  I  shall  give  thee  thus  much,  and  if  he  do  it,  I 
think  an  action  lieth  at  the  common  law."  This  was  obviously 
a  result  very  similar  to  that  reached  by  the  decisions  that  a  benefit 

1  Note  that  he  does  not  actually  say  here  that  the  money  has  been  paid,  but  the 
context  makes  it  reasonably  clear  that  this  is  meant. 

2  Above  422-423. 

3Y.BB.  12  Hy.  VIII.  Mich.  pi.  3;  27  Hy.  VIII.  Mich.  pi.  3. 

^  Lectures  143.  ^11.  c.  24;  as  to  this  book  see  Bk.  iv  Pt.  I.  c.  4. 


XVTH  TO  XVIITH  CENTURIES         441 

conferred  on  a  third  person  at  the  defendant's  request  could  be  re- 
garded as  a  quid  pro  quo  ;  ^  and  some  have  thought  that  this  sentence 
refers  to  the  action  of  debt.'^  But  there  is  this  difference.  The 
doctrine  of  quid  pro  quo  as  applied  to  the  action  of  debt  regarded 
the  matter  from  the  point  of  view  of  the  benefit  to  the  promisor  ;  ^ 
while  in  the  action  of  assumpsit  the  conditions  needed  for  success 
were,  owing  to  the  nature  of  the  action,  looked  at  from  the  point 
of  view  of  the  detriment  to  the  promisee.  As  in  this  passage 
the  emphasis  is  laid  on  the  "  charge,"  I  think  it  more  probably 
refers  to  the  action  of  assumpsit. 

It  would  appear  from  these  cases  of  suretyship  and  from 
The  Doctor  and  Student  that  the  plaintiff  must  have  incurred  *'  a 
charge,"  and  that  that  charge  must  consist  in  the  fact  that  the 
plaintiff  had  performed  his  side  of  the  agreement*  It  is  probable 
that  this  was  partly  due  to  the  rule  that  if  the  defendant's  obli- 
gation was  to  pay  a  fixed  sum  of  money,  the  plaintiff  must  sue 
in  debt^  In  practice  this  rule  must  have  worked  somewhat  as 
follows  :  To  sue  in  debt  it  must  be  shown  that  the  plaintiff  had 
given  a  quid  pro  quo :  on  the  other  hand,  to  sue  in  assumpsit  it 
must  be  shown  that  the  plaintiff  had,  as  a  result  of  the  agreement, 
undertaken  to  bear  some  charge.  As  to  sue  in  debt  performance 
by  the  plaintiff  must  be  shown,  it  was  natural  and  in  many  cases 
logical  to  lay  down  a  similar  rule  in  assumpsit.  Thus  (to  use 
the  example  in  The  Doctor  and  Student^  if  A  promises  B  that  he 
will  pay  B  ;^io  if  he  heals  a  poor  man,  B  can  only  sue  by  action 
of  debt,  and  he  cannot  make  use  of  that  action  till  the  healing  is 
effected.  But,  conversely,  till  A  has  paid  the  money  it  is  diffi- 
cult to  see  how  he  has  such  "a charge"  as  will  entitle  him  to  sue 
by  action  of  assumpsit.  He  is  not  under  any  ''  charge  "  merely 
in  consequence  of  his  agreement  with  B,  for  it  is  quite  clear  that 
B  cannot  sue  him  by  action  of  debt  merely  on  the  agreement  to 
heal.  In  fact,  there  are  the  same  objections  to  making  him  liable 
in  such  a  case  as  applied  to  the  attempt  of  Newton  and  Prisot, 
C.JJ.,  to  enforce  an  executory  contract  for  the  sale  of  land.^ 

(3)  The  absorption  by  the  action  of  the  greater  part  of  the  sphere 
of  Debty  and  its  extension  to  remedy  the  breach  of  executory  contracts. 

If  the  development  of  the  law  had  stopped  at  this  point  many 
purely  executory  contracts,  certainly  all  which  involved  a  money 

^  Above  422.  2  Pollock,  Contracts  (8th  ed.)  178  n.  (A). 

•"Above  423. 

^  Street,  op.  cit.  ii  36 — as  is  there  pointed  out,  though  much  is  said  in  Sharing- 
ton  V.  Strotton  (1566)  Plovv^den  at  p.  302  about  actionable  assumpsits,  "  not  one  of 
the  illustrations  there  given  affords  an  instance  of  a  contract  of  mutual  promises," 

''Above  418  n.  2  ;  and  see  Ames,  Lectures  151  cited  below  443. 

« Above  437-439- 


442    CONTRACT  AND  QUASI-CONTRACT 

payment  on  one  side,  would  have  been  unenforceable.  Indeed, 
looking  at  the  authorities  which  have  just  been  discussed,  it  may 
be  doubted  whether  any  wholly  executory  contract  would  have 
been  enforceable.  All  the  cases  seem  to  contemplate  that  plaintiff 
has  either  paid  money  or  done  some  act  in  pursuance  of  the 
contract.  That  the  development  of  the  law  did  not  stop  at  this 
point  was  no  doubt  largely  due  to  the  fact  that  the  constantly 
expanding  jurisdiction  of  the  Chancery  was  an  ever-increasing 
stimulus  to  the  judges  as  the  sixteenth  century  drew  to  a  close.^ 
And  the  necessary  further  development  was  rendered  the  more 
possible  by  the  constant  increase  in  the  number  of  cases  in  which 
assumpsit  was  brought  on  account  of  its  procedural  advantages 
over  debt.  It  was  never  forgotten  that  assumpsit  was  not  based, 
like  debt,  upon  the  grant  of  a  sum  of  money  in  return  for  the 
grant  of  property  or  service,  but  upon  an  undertaking  the  mak- 
ing of  which  had  exposed  the  plaintiff  to  "  a  charge."  But,  so 
long  as  debt,  and  debt  alone,  could  be  brought  upon  an  obliga- 
tion to  pay  money,  the  mere  making  of  the  agreement  did  not 
in  the  majority  of  cases  expose  either  party  to  a  charge  unless  it 
had  been  performed  on  one  side.  If,  however,  assumpsit  were 
allowed  to  be  brought  on  an  agreement  to  pay  money  made  in 
return  for  an  agreement  to  do  an  act,  it  is  clear  that  attention 
will  begin  to  be  paid  rather  to  the  mutual  promises  of  the  parties, 
which  constitute  that  agreement,  than  to  the  performance  by  one 
of  them  ;  and  that  the  mutual  undertakings  of  the  parties,  rather 
than  the  performance  by  one  of  them,  will  tend  to  be  regarded  as 
the  fact  which  imposes  the  liability.  Performance  on  one  side 
will  no  longer  be  requisite;  and  thus  wholly  executory  contracts 
will  become  enforceable. 

In  these  circumstances  it  is  not  surprising  to  find  that  the 
absorption  by  the  action  of  assumpsit  of  the  greater  part  of  the 
sphere  of  the  action  of  debt,  and  its  extension  to  remedy  the 
breach  of  executory  contracts,  were  developments  which  were 
intimately  allied.  This  fact  will  be  apparent  if  we  look  firstly 
at  the  lines  of  cases  which  resulted  in  making  the  sphere  of 
Assumpsit  almost  coterminous  with  the  sphere  of  Debt,  and 
secondly  at  the  line  of  cases  which  resulted  in  making  it  an  ade- 
quate remedy  for  the  breach  of  executory  contracts. 

(i)  It  would  seem  that  it  was  about  the  middle  of  the  six- 
teenth century  that  the  courts  began  to  allow  assumpsit  to  be 
brought  for  a  debt,  provided  that  the  debtor  had,  after  incurring 
the  debt,  expressly  promised  to  pay  it.^     But  for  some  time  it 

'■  Vol.  i  456,  460-461. 

2'*  Ou  home  est  endetted  a  moy  et  il  promes  de  payer  devant  Michaelmas  jeo 
puis  aver  accion  de  dett  sur  le  contract  ou  accion  del  cas  sur  le  promise  ...  car 


XVTH  TO  XVIITH  CENTURIES        443 

was  absolutely  necessary  that  this  express  promise  should  have 
been  made  after  the  incurring  of  the  debt.  Thus  in  1572 
Manwood,  C.B.,  objected  to  a  declaration  in  assumpsit  on  the 
ground  that  the  plaintiff  "  ought  to  have  said  quod postea  assump- 
sit for  if  he  assumed  at  the  time  of  the  contract  then  debt  lies, 
and  not  assumpsit ;  but  if  he  assumed  after  the  contract,  then  an 
action  lies  upon  the  assumpsit,  otherwise  not,  quod  Whiddon  and 
Southcote,  JJ.,  with  the  assent  of  Catlin,  C.  J.,  concesserunty  ^  The 
reason  for  this  limitation  is  no  doubt  that  assigned  by  Ames.^ 
'•  The  solution  of  this  puzzle  must  be  sought  in  the  nature  of  the 
action  of  debt.  A  simple  contract  debt  as  well  as  a  debt  by 
specialty  was  originally  conceived  of,  not  as  a  contract  in  the 
modern  sense  of  the  term,  that  is,  as  a  promise,  but  as  a 
grant.  .  .  .  Inasmuch  as  the  simple  contract  debt  had  been 
created  from  time  immemorial  by  a  promise  or  agreement  to 
pay  a  definite  amount  of  money  in  exchange  for  a  quid  pro  quo, 
the  courts  could  not  allow  an  action  of  assumpsit  also  upon  such 
a  promise  or  agreement,  without  admitting  that  two  legal  rela- 
tions, fundamentally  distinct,  might  be  produced  by  one  and  the 
same  set  of  words.  ...  To  them  it  seemed  more  natural  that 
the  force  of  the  words  of  agreement  was  spent  in  creating  the 
debt.  Hence  the  necessity  for  a  new  promise  if  the  creditor 
desired  to  charge  his  debtor  in  assumpsit." 

The  further  development  which  allowed  assumpsit  to  be 
brought  upon  a  debt  without  this  express  subsequent  promise 
originated  in  the  court  of  King's  Bench.  That  court  had  no 
jurisdiction  to  hear  actions  of  debt  begun  by  original  writ ;  but 
assumpsit,  being  an  action  of  trespass  on  the  case,  fell  within  its 
jurisdiction.  Naturally  therefore  it  desired  to  extend  the  scope 
of  assumpsit,  and  so  it  took  the  obvious  step  of  implying  an 
agreement  from  the  existence  of  a  debt,  and  allowing  assumpsit 
to  be  brought  on  this  implied  agreement.^  In  1573,  in  the  case 
of  Edwards  v.  Burre,  Wray,  J.,  said  that  it  was  the  custom  of  the 
King's  Bench  to  treat  a  debt  as  "an  assumption  in  law,"  and  he 
expressly  contrasted  this  custom  with  the  opposite  custom  of 
the  court  of  Common  Pleas.*  For  some  time  the  court  of 
Exchequer  Chamber  refused  to  allow  the  legality  of  this  practice. 
As  late  as  1601  it  reversed  a  decision  of  the  King's  Bench  which 

sur  le  promise  ne  gist  accion  de  dett,"  Brooke,  Ab.  Action  sur  le  Cas  pi.  5;  this 
remark  does  not  occur  in  the  case  which  Brooke  was  abridging,  Y.B.  27  Hy.  VII. 
Mich.  pi.  3  ;  thus,  as  Mr.  Street  says  (Foundations  of  Legal  Liability  ii  61  n.  i),  the 
principle  is  probably  of  later  origin ;  "  but  as  Brooke  died  in  1558  the  date  when  the 
point  was  decided  cannot  be  far  from  the  middle  of  the  century ;  "  as  Mr.  Street  notes, 
in  another  case  abridged  by  Brooke  in  the  same  title,  pi.  105  of  33  Hy.  VIII.,  the 
principle  seems  to  be  admitted. 

1  Anon.  Dalison  84  pi.  35.  2  Lectures  151. 

3  Ibid  146.  4  Dalison  104  pi.  45, 


444    CONTRACT  AND  QUASI-CONTRACT 

had  treated  a  debt  as  **an  assumption  in  law."  ^  But  in  1602 
in  Slade's  Case,  after  argument  before  all  the  judges,  the  view  of 
the  King's  Bench  was  finally  upheld.^  The  result  was  that 
"  Debt  as  a  remedy  upon  simple  contracts  practically  disappeared, 
its  place  being  taken  by  Indebitatus  Assumpsit."  ^  It  practically 
disappeared,  because,  from  the  point  of  view  of  the  creditor,  this 
new  form  of  action  had  manifold  advantages.  Not  only  was 
wager  of  law  not  possible,*  but  the  same  preciseness  of  pleading 
was  not  required,^  and,  as  we  shall  see,  the  action  (unlike  Debt 
upon  a  verbal  contract)  could  be  brought  against  the  representa- 
tive of  a  deceased  person.^ 

(ii)  This  development  which  made  Indebitatus  Assumpsit 
coterminous  with  Debt  was  not  in  itself  a  violent  departure  from 
that  line  of  cases  which  had  allowed  assumpsit  to  be  brought  for 
the  non-performance  of  an  undertaking  by  a  person  who  had 
changed  his  position  on  the  faith  of  the  making  of  the  undertaking. 
In  fact  this  development  could  be  regarded  as  merely  applying 
the  same  principle  to  both  of  the  parties  to  an  undertaking.  The 
earlier  line  of  cases  had  decided  that  when  money  had  been  paid 
or  other  detriment  had  been  incurred  on  the  faith  of  a  promise, 
assumpsit  lay  for  non-fulfilment  of  that  promise.  The  later  line 
of  cases  had  decided  that  when  a  promise  had  been  fulfilled,  so 
that  a  debt  was  incurred,  a  promise  to  pay  that  debt  was  action- 
able. But  if  payment  would  give  rise  to  an  action  when  the 
promise  on  the  faith  of  which  the  payment  was  made  was  not 
fulfilled ;  and  if  the  fulfilment  of  the  promise  for  which  payment 
was  expected  would  give  rise  to  an  action  on  a  special  promise 
to  pay — why  should  not  any  promise  be  actionable  if  given  for  a 
promise? 

The  cases  would  seem  to  show  that  it  was  the  growth  of 
Indebitatus  Assumpsit,  in  which  the  idea  of  promise  was  the  gist 
of  the  action,  which  brought  this  idea  to  the  front.     The  case  of 

1  Maylard  v.  Kester  Moore  711. 

'^  4  Co.  Rep.  92b ;  see  the  passage  from  ff.  94a,  94b  cited  below  445  ;  for  the 
similar  victory  of  the  King's  Bench  in  Pinchon's  Case  (1612)  9  Co.  Rep.  86b  see 
below  451-452. 

3  Street,  op.  cit.  ii  65.  ■*  Above  423. 

^'*  The  count  in  Debt  must  state  the  quantity  and  description  of  goods  sold  with 
the  details  of  the  price,  all  the  particulars  of  a  loan,  the  names  of  the  persons  to 
whom  money  was  paid  with  the  amounts  of  each  payment,  the  names  of  the  person 
from  whom  money  was  received  to  the  use  of  the  plaintiff  with  the  amounts  of  each 
receipt,  the  precise  nature  and  amounts  of  services  rendered.  In  Indebitatus  As- 
sumpsit, on  the  other  hand,  the  debt  being  laid  as  an  inducement  or  conveyance  to 
the  assumpsit,  it  was  not  necessary  to  set  forth  all  the  details  of  the  transaction  from 
which  it  arose.  It  was  enough  to  allege  the  general  nature  of  the  indebtedness,  as 
for  goods  sold,  money  lent,  .  .  .  and  that  the  defendant  being  so  indebted  promised 
to  pay.     This  was  the  origin  of  the  common  counts,"  Ames,  Lectures  153-154. 

^  Below  451-452, 


XVTH  TO  XVIITH  CENTURIES         445 

Pecke  V.  Redman  (1555)^  was  treated  by  Coke^  as  a  case  which 
decided  that  a  wholly  executory  contract  was  enforceable  by 
assumpsit ;  and,  if  the  case  is  an  authority  for  this  proposition,^ 
it  is  perhaps  the  earliest  case  in  which  this  principle  was  admitted. 
The  remark  in  argument  in  the  case  of  Norwood  v.  Reed  (1558) 
that  "every  contract  executory  is  an  assumpsit  in  itself"^  shows 
that  the  lawyers  were  beginning  to  realize  that  the  mutual  under- 
takings— the  mutual  assumpsits — of  the  two  parties  to  an 
executory  contract  would  give  rise  to  mutual  actions  of  assumpsit ; 
and  the  principle  was  recognized  in  1589  in  Strangborougk  and 
Warner's  Case.^  "  Note,"  it  was  said,  *'  that  a  promise  against  a 
promise  will  maintain  an  action  upon  the  case,  as  in  consideration 
that  you  do  give  to  me  ;£"io  on  such  a  day,  I  promise  to  give  you 
^10  such  a  day  after."  This  case  was  quickly  followed  by  other 
cases  in  which  the  same  point  was  adjudged ;  ^  and  it  was  finally 
sanctioned  and  justified  by  all  the  judges  in  Slade's  Case?  **  Every 
contract  executory,"  it  was  said,  ''imports  in  itself  an  assumpsit, 
for  when  one  agrees  to  pay  money  or  to  deliver  anything  thereby 
he  assumes  or  promises  to  pay  or  deliver  it,  and  therefore  when 
one  sells  any  goods  to  another,  and  agrees  to  deliver  them  at  a 
day  to  come,  and  the  other  in  consideration  thereof  agrees  to  pay 
so  much  money  at  such  a  day,  both  parties  may  have  an  action 
of  debt,  or  an  action  on  the  case  on  assumpsit,  for  the  mutual 
executory  agreement  of  both  parties  imports  in  itself  actions  upon 
the  case  as  well  as  actions  of  debt."  But,  as  was  pointed  out  in 
Nichols  V.  Raynberdy^  both  the  promises  "  must  be  at  one  instant 
for  else  they  will  be  both  nuda  pacta." 

Slade's  Case,  then,  marks  the  culmination  of  these  two 
developments  of  the  action  of  assumpsit  which  had  been  going 
on  throughout  the  sixteenth  century  ;  and  the  terms  of  the  resolu- 
tion in  that  case  which  has  just  been  cited  show  clearly  the 
interdependence  of  these  two  developments.  But  it  should  also 
be  noted  that  the  decision  owed  something  to  that  development 
of  the  action  of  debt  which  had,  in  the  case  of  the  contract  of  sale 
of  goods,  and  in  the  case  of  that  contract  alone,  permitted  an 

1  Dyer  113a. 

2  Slade's  Case  (1602)  4  Co.  Rep.  at  f.  94b. 

3  The  report  in  Dyer  is  not  very  clear ;  it  is  possible  that  the  contract  had  been 
partly  performed. 

^  Plowden  at  p.  182.  ^  4  Leo.  3. 

^  Gower  v.  Capper  (1597)  Cro.  Eliza.  543  ;  Wickals  v.  Johns  (1600)  ibid  703. 

■^  (1602)  4  Co.  Rep.  at  ff.  94a,  94b ;  the  only  dissentient  note  was  sounded  by 
Vaughan,  C.J.,  in  Edgcomb  v.  Dee  (1670)  Vaughan's  Rep.  at  p.  loi,  who  called 
the  resolution  in  that  case  illegal,  and  said  that  "  that  which  is  so  commonly  now 
received,  that  every  contract  executory  implies  a  promise,  is  a  false  gloss,  thereby  to 
turn  actions  of  debt  into  actions  on  the  case." 

8  (1615)  Hob.  88. 


446    CONTRACT  AND  QUASI-CONTRACT 

action  of  debt  on  an  executory  contract.^  Just  as  that  analogy 
had  helped  the  lawyers  to  extend  the  sphere  of  assumpsit  to 
remedy  certain  cases  of  non-feasances  in  breach  of  an  undertaking,''^ 
so  at  a  later  period  it  helped  them  to  extend  its  sphere  to- remedy 
the  breach  of  executory  contracts.  The  "infinite  precedents" 
which  were  shown  to  Coke  to  justify  the  decision  of  the  court 
appear  to  have  been  cases  of  contracts  of  sale ;  ^  and  the  terms  of 
the  resolution  show  that  it  was  the  contract  of  sale  that  the  judges 
had  in  their  minds. 

But,  though  these  two  developments  which  gave  rise  to 
Indebitatus  Assumpsit,  and  to  the  extension  of  assumpsit  to 
remedy  purely  executory  contracts,  were  in  their  origin  inter- 
dependent, these  two  varieties  of  assumpsit  came  in  time  to 
develop  differences  which  made  them  distinct  forms  of  action. 
Thus  in  1696  it  was  held  that,  though  assumpsit  lay  on  an 
executory  contract,  Indebitatus  Assumpsit  only  lay  when  Debt 
would  lie,  and  could  not  therefore  be  brought  on  a  purely  ex- 
ecutory contract.^  Special  or  Express  assumpsit  thus  became 
distinct  from  Indebitatus  Assumpsit ;  and,  as  we  shall  see  immedi- 
ately, both  were  distinct  from  the  action  in  tort  grounded  on  an 
assumpsit  which  had  been  their  first  parent. 

(4)  The  extension  of  the  action  to  remedy  the  breach  of  implied 
contracts. 

The  notion  of  an  implied  contract  figures  prominently  in 
Slades  Case ;  and  it  was  a  notion  which  was  badly  needed  to  fill 
up  a  serious  lacuna  in  the  law.  The  view  held  by  the  court  of 
Common  Pleas,  that  Indebitatus  Assumpsit  only  lay  when  there 
had  been  an  express  subsequent  promise  to  pay,  had  led  to  very 
serious  hardship.  Thus  in  1587,  in  Young  and  Asburnhams 
Case  ^  it  was  held,  in  accordance  with  mediaeval  precedents,^  that, 
when  a  man  had  lodged  at  an  inn  without  agreeing  upon  a  fixed 
price  for  his  entertainment,  the  innkeeper  could  not  bring  Debt ; 
and  clearly,  as  no  express  promise  to  pay  had  been  made,  he 
could  not  bring  Indebitatus  Assumpsit.'''  One  of  the  effects  of 
the  decision  in  Slade's  Case  was  to  remedy  this  injustice.     Jn 

1  Above  423.  2  Above  436-439. 

3  The  first  reason  alleged  for  the  decision  was  "  in  respect  of  infinite  precedents 
(which  George  Kemp  Esqr.  Secondary  of  the  Prothonotaries  of  the  King's  Bench, 
shewed  me)  ...  in  the  reigns  of  H.  6,  E.  4,  H.  7  and  H.  8,  by  which  it  appears 
that  the  plaintiffs  declared  that  the  defendants,  in  consideration  of  a  sale  to  them  of 
certain  goods,  promised  to  pay  so  much  money,  etc.,  in  which  cases  the  plaintiffs  had 
judgment,"  4  Co.  Rep.  at  ff.  93a,  93b. 

^Bovey  v.  Castleman  i  Ld.  Raym.  69.  °3  Leo.  161. 

fi  •'  Et  Brian  disoit  que  si  jeo  port  un  drape  a  un  taylor  de  avoir  un  toge  fait,  si 
le  price  ne  soit  en  certain  devant  combien  jeo  payera  pur  le  fesans,  il  n'avera  Det  vers 
moy,"  Y.B.  12  Ed.  IV.  Pasch.  pi.  22  (p.  9). 

■^  Above  443. 


XVTH  TO  XVIITH  CENTURIES         447 

1 6 10  in  the  case  of  Warbrooke  v.  Griffin  it  was  recognized  that 
the  innkeeper  could  sue  for  the  value  of  the  entertainment  which 
he  had  provided  ;  ^  and  thus  was  introduced  the  idea  that,  when 
a  promise  to  pay  can  be  implied,  assumpsit  can  be  brought  on 
a  quantum  meruit.^  This  principle  was  soon  accepted ;  and 
Shepherd  in  his  book  on  Actions  on  the  Case  cites  a  case  of  the 
year  1632  for  the  general  proposition  that,  "If  one  bid  me  do 
work  for  him,  and  do  not  promise  anything  for  it ;  in  that  case 
the  law  implieth  the  promise,  and  I  may  sue  for  the  wages."  ^ 
This  principle  was  easily  extended  in  the  course  of  the  seventeenth 
century  to  tailors,^  carriers,^  factors  or  bailiffs,^  vendors  of  goods,^ 
and,  in  the  eighteenth  century,  to  actions  by  paying  sureties 
against  the  principal  debtor.^  It  was  also  extended  to  accounts 
stated,^  and  to  the  enforcement  of  an  award  by  arbitrators  order- 
ing one  of  the  parties  to  the  arbitration  to  do  a  specific  act.^^  In 
making  these  logical  applications  of  the  principle  sanctioned  in 
Slade's  Case  it  is  probable  that  the  common  law  courts  were  in- 
fluenced, as  they  had  been  influenced  at  earlier  periods  in  the 
history  of  this  branch  of  the  law,  by  the  fact  that  the  court  of 
Chancery  gave  a  remedy  in  such  cases.^^  In  consequence  of  this 
action  of  the  courts  of  common  law  the  interference  of  equity 
became  unnecessary ;  and  Spence  was  somewhat  at  a  loss  to 
account  for  the  suits  brought  to  enforce  "  purely  legal  demands 
of  a  personal  nature"  which  he  found  on  the  records  of  the  court 
in  the  sixteenth  century.  ^^  As  Ames  has  pointed  out  the  fact  that 
assumpsit  could  not  then  be  brought  on  a  quantum  meruit  is  a 
sufficient  explanation. 

It  followed  from  these  cases  that  assumpsit  became  a  possible 
remedy  in  many  cases  which  were  formerly  only  remediable  by 
Debt,  Account,  or  an  innominate  action  on  the  case.  Thus  we 
have  seen  that  it  lay  on  an  account  stated,^^  and  against  factors 
and  bailiffs  for  the  payment  of  ascertained  sums  of  money  due 
from  them.^*  But  it  is  the  extension  of  one  or  other  of  the  forms 
of  assumpsit  to  some  of  these  innominate  actions  on  the  case 

^  2  Brownlow  254,  S.C.  Moore  876-877,  cited  Ames,  Lectures  154  n.  4. 

2  Ibid  154.  3  Cited  ibid  154-155. 

4  See  the  Six  Carpenters'  Case  (1611)  8  Co.  Rep.  at  f.  147a;  and  cp.  Ames, 
Lectures  154  n.  5. 

6  Nichols  V.  More  (1661)  i  Sid.  36.  6  Wilkin  v.  Wilkin  (1691)  i  Salk.  9. 

'  Hayvvard  v.  Davenport  {1697)  Comb.  426  per  Powell,  J. 

8  See  Ames,  Lectures  155-156.  ^  Egles  v.  Vale  (1606)  Cro.  Jac.  70. 

^o  If  the  award  was  to  pay  a  sum  of  money  Debt  lay ;  but  there  was  no  remedy 
at  common  law  if  the  award  was  to  do  any  other  act,  see  Ames,  Lectures  159,  citing 
Tilford  V.  French  (1663)  i  Lev.  113 ;  but  at  the  end  of  the  seventeenth  century  Holt, 
C.J.,  allowed  assumpsit  to  be  brought  in  such  a  case,  Freeman  v.  Bernard  (1698) 
I  Ld.  Raym.  at  p.  248. 

"  Ames,  Lectures  156.  ^^  Equitable  Jurisdiction  i  693-694. 

13  Above  n.  9.  ^^  Above  n.  6. 


448    CONTRACT  AND  QUASI-CONTRACT 

against  innkeepers,  bailees,  and  carriers  which,  historically,  is, 
for  several  reasons,  the  most  interesting. 

(i)  We  have  seen  that  in  the  Middle  Ages  the  liability  of 
innkeepers,  carriers,  and  others  whose  callings  were  of  a  quasi- 
public  character,  for  want  of  skill  in  the  exercise  of  their  callings, 
was  enforced  by  an  action  in  tort  on  the  custom  of  the  realm. 
This  liability  in  tort  followed  from  the  fact  that  they  were  re- 
garded as  holding  a  definite  status  to  which  this  liability  was 
annexed  by  law.^  We  have  seen  also  that  persons  who  under- 
took other  trades  could  also  be  made  liable  for  misfeasance  in 
breach  of  their  undertaking  ;  and  that  in  these  cases  the  ground 
of  the  liability  was  also  tort."  But  we  have  seen  that  it  became 
possible  in  some  of  these  cases  to  sue  by  action  of  assumpsit  on 
a  quantum  meruit  for  breach  of  their  contract  express  or  im- 
plied ;  ^  and  we  shall  see  directly  that,  in  the  seventeenth  cen- 
tury, the  bailee  who  caused  damage  by  acting  carelessly  could 
be  made  liable  in  Special  Assumpsit.  The  result  was  that  the 
liabilities  of  such  persons  seemed  no  longer  to  be  founded  on 
tort,  but  to  flow  from  the  contracts  which  they  had  made. 
The  adoption  therefore  of  these  forms  of  assumpsit  in  these 
cases  tended  to  promote  and  emphasize  a  transition  from  status 
to  contract 

(ii)  This  development  of  assumpsit  has  tended  to  obscure 
the  nature  of  the  liability  of  the  person  who  causes  damage  by 
the  manner  in  which  he  has  conducted  either  his  trade  or  any 
duty  which  he  may  have  undertaken.^  As  an  illustration  of 
this  confusion  let  us  take  the  case  of  the  bailee.  In  the  fifteenth 
century  the  bailee  who  was  guilty  of  negligent  misfeasance  in 
breach  of  his  undertaking  was  liable  in  an  action  in  tort  based 
on  his  undertaking.^  The  action  sounded  in  tort,  though  it  was 
necessary  to  allege  as  a  ground  of  this  liability  that  he  had 
undertaken  to  act,  as,  without  this  undertaking,  there  was  no 
delictual  liability.*^  But,  in  the  seventeenth  century  when  negli- 
gence had  come  to  be  regarded  as  a  ground  of  liability,  it  was 
seen  that  the  liability  was  really  founded  on  negligence,  and  that 
the  undertaking  was  an  immaterial  detail.^  Its  averment  was 
therefore  generally  omitted    by  the  plaintiff  in  actions  against 

1  Above  385-386.  2  Ibid.  3  Above  447. 

^On  this  subject  see  Ames,  Lectures  131-135. 

^Ibid  132-133,  citing  Statham  Ab.  Action  on  Case  (27  Hy.  VI.) ;  and  Y.BB.  12 
Ed.  IV.  Mich.  pi.  10;  2  Hy.  VII.  Hil.  pi.  9. 

^  Above  430 ;  see  Ames,  Lectures  131-132. 

'  In  Mosley  v.  Fosset  (1598)  Moore  543  all  the  judges  of  the  Queen's  Bench 
agreed  that  "  without  such  an  assumpsit  the  action  would  not  lie  ;  "  but  in  Symons 
V.  Darknoll  (1629)  Palmer  523  the  court  held  that  the  action  would  lie  though  there 
was  no  promise,  Whitelock,  J.,  saying  that  the  action  "  est  ex  malefacto  non  ex 
contracto." 


XVTH  TO  XVIITH  CENTURIES         449 

such  persons.^  These  actions  came  therefore  to  be  regarded 
simply  as  actions  on  the  case  for  negligence.  But  in  the  six- 
teenth century  several  cases  had  occurred  in  which  it  had  been 
sought  to  make  bailees  liable  in  Special  Assumpsit — that  is,  to 
hold  them  liable  in  that  form  of  assumpsit  which  had  assumed 
the  form  of  a  contractual  action.  But  the  plaintiffs  in  these 
actions  failed  because  they  were  unable  to  prove  consideration.^ 
However,  in  1623  it  was  held  that  a  bailee  might  be  charged  in 
Special  Assumpsit  on  a  merely  gratuitous  bailment,^  and  to 
justify  this  step  the  courts  thought  it  necessary  to  invent  a  con- 
sideration. According  to  some  of  the  judges  the  consideration 
consisted  in  the  fact  that  he  had  received  the  money  and  had 
promised  to  deliver  it ;  *  and  according  to  another  the  fact  that 
the  bailee  was  liable  in  an  action  of  account  and  that  he  was 
freed  from  this  liability  by  the  bringing  of  assumpsit,  constituted 
the  consideration.^  The  same  difficulty  was  felt  in  Coggs  v. 
Bernard.^  It  was  said  by  Holt,  C.J.,  in  that  case  that  "  the 
owner's  trusting  him  with  the  goods  is  a  sufficient  consideration 
to  oblige  him  to  a  careful  management ;  "  ^  and  Powell,  J.,  in  the 
same  case  found  a  consideration  in  the  fact  that  ''the  taking  of 
the  goods  into  his  custody  is  his  own  act."  ^  Still  greater  diffi- 
culties have  been  found  by  those  who  have  tried  to  regard  the 
liability  of  a  gratuitous  employe,  such  as  was  in  issue  in  the  case 
of  Wilkinson  v.  Coverdale^  as  a  contractual  liability.^^    The  truth 

1  Ames,  Lectures  135  n.  6,  citing  Institutio  Clericalis  ii  185,  and  Chitty,  Plead- 
ing (7th  ed.)  ii  506,  507. 

2  See  Howlet  v.  Osbourn  (1595)  Cro.  Eliza.  380  ;  Riches  v.  Bridges  (1602)  ibid 
883,  and  other  cases  cited  by  Ames,  Lectures  134  n.  3 ;  in  the  last  cited  case  the 
Queen's  Bench  held  that  receipt  of  the  property  was  good  consideration  for  the 
promise  to  deliver,  but  the  decision  was  reversed  by  the  Exchequer  Chamber. 

^Wheatley  v.  Low  (1624)  Cro.  Jac.  668;  S.  C.  Palmer,  281  sub.  nom.  Loe's 
Case. 

^"  Being  that  he  accepted  this  money  to  deliver,  and  promised  to  deliver  it, 
it  is  a  good  consideration  to  charge  him,"  Cro.  Jac.  668. 

5"  Dodderidge  dit  que  (per)  le  bailment  le  bailee  fuit  subject  al  accompt,  qui 
est  discharge  et  freed  par  cest  action,  que  est  sufficient  consideration,"  Palmer  at 
p.  282. 

s  {1704)  2  Ld.  Raym.  909. 

■^  Ibid  at  p.  919 ;  see  Markby,  Elements  of  Law  {3rd  ed.)  313  for  some  very 
apposite  remarks  on  this  "  bold  discovery  "  of  a  consideration. 

8  Ibid  at  p.  911. 

8  (1793)  I  Esp.  75  ;  see  Sir  F.  Pollock's  remarks  on  this  case  in  53  Rev.  Rep. 
Preface. 

1"  Thus  Anson  says,  Contracts  (14th  ed.)  109,  that  **  the  liability  was  stated  to 
arise  on  the  promise,  and  was  disputed  on  the  ground  that  there  was  no  considera- 
tion for  the  promise.  It  was  therefore  based  on  contract ;  "  but  the  form  of  the 
action  was  Case,  not  Assumpsit ;  and  though  Lord  Kenyon,  C.J.,  started  an  objection 
as  to  want  of  consideration,  on  it  being  pointed  out  that  the  action  was  an  action  on 
the  case  for  negligence,  he  admitted  that  the  objection  was  misplaced  and  allowed 
the  action  to  proceed ;  no  doubt  it  was  the  alleged  promise  to  the  plaintiff  which 
created  the  duty  to  get  the  insurance  poUcy  in  a  certain  form,  just  as  it  was  the 
undertaking  to  a  plaintiff  by  a  person  professing  a  particular  trade  which  created  the 
VOL.   III.— 29 


450    CONTRACT  AND  QUASI-CONTRACT 

is  that  all  these  cases  are  really  cases  of  delictual  liability  dis- 
guised by  the  form  of  the  action.  The  whole  difficulty  arises 
from  the  fact  that  the  courts  allowed  a  cause  of  action  founded 
on  tort  to  masquerade  as  an  action  founded  on  contract.  The 
parties  were  allowed  to  waive  the  tort  and  sue  in  contract, 
just  as  in  cases  of  wrongs  to  property  they  were  some- 
times allowed  to  waive  the  trespass  and  sue  in  trover.^  But 
in  the  latter  class  of  cases  defences  like  the  jus  tertii,  which 
were  not  allowed  to  a  defendant  in  Trespass,  were  not  allowed 
if  Trover  was  used  merely  as  an  alternative  to  trespass.^  It 
would  have  removed  much  confusion  if,  in  these  cases  of 
assumpsit  against  bailees,  the  courts  had  refused  to  allow 
the  defence  of  want  of  consideration  on  the  ground  that 
assumpsit  was  merely  alternative  to  Case,  in  which  form  of 
action  no  such  defence  was  available.^ 

(iii)  We  shall  see  in  a  later  volume  that  the  fact  that  the 
liability  of  carriers  and  other  bailees  tended,  by  reason  of  these 
extensions  of  assumpsit,  to  be  regarded  as  contractual  in  its 
nature,  helped  to  mitigate  some  of  the  severe  rules  as  to  the 
nature  of  their  liability  which  were  laid  down  by  the  mediaeval 
common  law.^ 

It  is  clear  that  this  last  extension  of  the  sphere  of  assumpsit 
brings  us  close  to  the  border  line  of  the  sphere  of  contract.  We 
have  seen  that  Debt  or  Account  lay,  not  only  in  certain  cases  in 
which  there  had  been  an  implied  consent,  but  also  in  cases  in 
which  there  had  been  no  consent  at  all.^  They  lay,  in  other  words, 
for  the  breach  of  certain  quasi-contractual  obligations.  It  was 
inevitable  that  Indebitatus  Assumpsit  should  be  extended  also  to 
these  obligations.  But  this  was  a  more  violent  extension  than  any 
of  the  others,  because  Indebitatus  Assumpsit  pre-supposed  some 
sort  of  agreement  express  or  implied.  In  fact  we  shall  see  that 
Holt,  C  J.,  objected  on  this  ground  to  this  extension  ;  ^  and  as  it  was 
not  suggested  till  the  end  of  the  seventeenth  nor  finally  sanctioned 
till  the  beginning  of  the  eighteenth  century,  I  shall  deal  with  it 
in  the  following  Book.*^     We  shall  see  that  the  effects  upon  legal 

duty  not  to  hurt  the  plaintiff  by  the  way  in  which  he  exercised  his  trade  in  pursuance 
of  his  undertaking,  above  386,  430 ;  but  in  both  cases  it  was  not  the  undertaking, 
but  the  negligence  which  was  the  gist  of  the  action. 

iBk.  iv  Pt.  II.  c.  2§  I.  2  Ibid. 

3 Ley,  C.J.,  seemed  to  have  had  some  perception  of  this  fact,  for  he  said  in 
Wheatley  v.  Low,  Palmer  at  p.  282,  '*  comment  ne  fuit  consideration  ou  assumpsit, 
uncore  le  detainer  del  argent  est  damage  al  plaintiff,  sur  que  il  poet  avoir  action ; 
et  non  assumpsit  n'est  proper  issue  icy,  mes  nient  culp" — in  other  words,  the  rights 
of  the  parties  must  be  regulated  in  an  action  of  assumpsit  brought  on  these  facts  as 
if  they  had  brought  an  action  on  the  case. 

4  Bk.  iv  Pt.  II.  c.  5  §  6,  5  Above  425-426. 

"  Mayor  of  York  v.  Towne  (1700)  i  Ld.  Raym.  502  ;  Bli,  iv  Pt.  II.  c.  3  §  3. 

7  JBk.  iv  Pt.  II.  c.  3  §  3. 


XVTH  TO  XVIITH  CENTURIES         451 

development  of  the  extensions  of  the  scope  of  the  action  which 
have  just  been  described  and  of  this  last  extension  have  not  been 
dissimilar  ;  for  just  as  the  main  principles  of  the  law  as  to  express 
and  implied  contracts  were  evolved  in  and  through  the  earlier 
extensions  of  the  action,  so  the  main  principals  of  the  modern  law 
as  to  quasi-contracts  were  evolved  in  and  through  this  last 
extension. 

It  was  S lades  Case  which  fixed  the  character  of  the  action  of 
assumpsit ;  for,  as  we  have  seen,  it  enabled  it  to  absorb  the 
greater  part  of  the  sphere  occupied  by  the  action  of  debt,  and  to 
become  a  remedy  for  the  breach  of  purely  executory  contracts. 
From  henceforward  it  was  the  contractual  action  of  the  common 
law ;  and  the  fact  that  its  character  was  thus  fixed  is  shown  by 
the  settlement  nine  years  later  of  the  much  debated  question 
whether  the  representatives  of  a  deceased  person  could  be  made 
liable  in  an  action  of  assumpsit  for  the  contracts  of  the  deceased  ; 
or  whether  they  could  escape  from  liability,  either  on  the  ground 
that,  as  they  were  not  liable  in  an  action  of  debt  in  which  a 
testator  might  have  waged  his  law,^  they  ought  not  to  be  made 
liable  in  assumpsit,  or  on  the  ground  that  assumpsit  was  an  action 
to  which  the  maxim  actio  personalis  moritur  cum  persona  applied.^ 
This  had  been  a  doubtful  question  during  the  sixteenth  century. 
In  1 521  Fineux,  C.J.,  had  decided  that  the  maxim  actio  personalis^ 
etCy  did  not  apply  and  that  the  executors  were  liable.^  But  in 
1536  Fitzherbert  dissented  vigorously  from  this  decision;*  and 
his  view  was  upheld  in  1546.^  However,  in  1558,  in  the  case  of 
Norwood  V,  Read^  the  court  reverted  to  the  view  of  Fineux,  C.J. 
But  apparently  in  this  case  the  bearing  of  the  maxim  actio 
personalis^  etc.y  was  not  considered.  The  view  taken  seems  to  have 
been  that  the  reason  why  the  representatives  were  not « liable  in  an 
action  of  debt  was  the  fact  that,  if  such  an  action  had  been  brought 
against  the  deceased,  he  could  have  waged  his  law  ;  and  that,  as 
wager  of  law  was  not  possible  in  an  action  of  assumpsit,  there  was 
no  reason  why  they  should  not  be  liable.  But  though  the  Queen's 
Bench  held  the  view  that  the  executor  could  be  made  liable,  in 
1 595  ^  and  i  596  ^  their  decisions  to  that  effect  were  reversed  in  the 
Exchequer  Chamber.  It  was  not  till  161 2  that  the  view  of  the 
King's  Bench  upon  this  question  prevailed,  as  it  had  prevailed  in 

1  Above  423. 

2  For  the  history  of  this  maxim  see  below  576-582,  584;  a  very  clear  account  of 
the  development  of  the  law  on  this  matter  will  be  found  in  Goffin,  the  Testamentary 
Executor  58-63, 

8Y.B.  12  Hy.  VIII.  Mich.  pi.  3  (p.  11). 

4  Y.B.  27  Hy.  VIII.  Trin.  pi.  2t.  ^  prook,  N.C.  5.  «  Plowden  181. 

'  Stubbings  V.  Rotheran,  Cro.  Eliza.  454. 

^  Serle  v.  Rosse,  Cro.  Eliza.  459. 


452    CONTRACT  AND  QUASI-CONTRACT 

Slade's  Case^  on  other  questions  relative  to  the  competence  of 
assumpsit.  In  Pinchoris  Case  ^  the  court  held  that  the  action  lay 
against  the  representatives,  not  only  on  the  ground  taken  in 
Norwood  V.  Read,  but  also  on  the  ground  that  assumpsit  was  as 
clearly  a  contractual  action  as  the  action  of  covenant.^  It  was  no 
longer  an  action  to  get  damages  for  a  tort,  but  an  action  to  obtain 
redress  for  the  breach  of  a  contract.  In  other  words,  it  enforced 
the  payment  of  the  deceased's  debts  and  gave  damages  for  non- 
performance of  his  contractual  liabilities ;  and,  as  the  court  said, 
"  It  is  more  consonant  to  justice  and  common  right  that  the  just 
debts  should  be  paid  than  the  executors,  who  have  the  goods  in 
another's  right,  should  convert  the  goods  to  their  private  uses 
without  paying  the  testator's  debts."  *  It  was  held  shortly 
afterwards,  in  spite  of  some  divergence  of  judicial  opinion,  that 
this  reasoning  applied  not  only  when  assumpsit  was  brought  to 
enforce  payment  of  a  debt,  but  also  when  it  was  brought  to  get 
damages  for  the  breach  of  any  other  contract.^ 

It  was  not  long  before  other  consequences  of  the  con- 
tractual character  which  the  action  had  now  assumed  appeared. 
Damages  came  to  be  assessed,  not  upon  the  delictual  principle  of 
compensating  the  plaintiff  for  the  detriment  he  had  incurred,  but 
upon  the  contractual  principle  of  compensating  the  plaintiff  for 
the  failure  to  obtain  that  which  had  been  promised  to  him.^  The 
special  conditions  which  must  be  present  before  the  action  could 
be  brought — conditions  summed  up  in  the  word  "  consideration  " 
— were  not  the  same  as  the  conditions  which  were  necessary  to 
support  an  ordinary  action  in  tort  based  upon  the  active  or 
negligent  misconduct  of  the  defendant.^  It  is  true  that  the  action 
did  not  cease  to  be  capable  of  being  put  to  its  original  use  of  an 
action  in  tort.^  It  is  true  that,  even  when  it  was  used  as  a  purely 
contractual  action,  it  did  not  loose  all  traces  of  its  delictual  origin. 
In  fact  the  ordinary  form  of  the  declaration  in  assumpsit  vividly 
recalled  them.^     But  pleading  forms  are  long-lived  things,  and 

1  Above  444,  445.  ^9  Co.  Rep.  86b. 

3  "  An  action  sur  assumpsit  upon  good  consideration,  without  specialty  to  do  a 
thing,  is  no  more  personal,  i.e.  annexed  to  the  person,  than  a  covenant  by  specialty 
to  do  the  same  thing,"  ibid  at  f.  89a. 

4  Ibid  at  f.  90a. 

^Sanders  v.  Esterby  (1616)  Cro.  Jac.  417;  Clark  v.  Thomson  (1621)  ibid  571 ; 
Favi'cet  v.  Charter  (1623)  ibid  662. 

^Slade's  Case  (1602)  4  Co.  Rep.  at  f.  94b;  cp.  Salmond,  Essays  in  Jurisprudence 
212. 

■^  For  the  history  of  consideration  see  Bk.  iv  Pt.  II.  c.  3  §  i. 

8  Above  448-450. 

9  See  Heme's  Pleader  (ed.  1657)  p.  130,  "  Notwithstanding,  the  said  defendant 
his  promise  and  assumption  little  regarding,  but  meaning  and  intending  him  the  said 
plaintiff  craftily  and  suhtilly  to  deceive  and  defraud,  the  said  £g  los.  (the  price  of 
goods  sold)  according  to  his  promise  and  assumption  aforesaid  to  the  said  plaintiff  has 
not  yet  paid  or  any  wayes  contented  ;  "  and  this  phrasing  continued  to  the  end,  see 
the  precedent  in  Stephen,  Pleading  (ist  ed.)  48. 


XVTH  TO  XVIITH  CENTURIES        453 

often  represent  a  past  stage  in  legal  history.  In  all  its  essential 
characteristics  assumpsit  was  established  as  an  independent 
contractual  action  by  the  end  of  the  first  decade  of  the  seventeenth 
century. 

It  has  been  necessary  in  tracing  the  history  of  assumpsit  to 
pass  far  beyond  the  mediaeval  period.  Its  history  has  been  so 
continuous  that  it  hardly  admits  of  a  chronological  division  ;  and 
a  clear  understanding  of  its  whole  course,  and  of  the  relation  of 
this  action  to  the  older  personal  actions,  is  necessary  to  the 
proper  understanding  of  many  of  those  doctrines  of  the  sub- 
stantive law  of  contract  with  which  I  shall  deal  in  the  following 
Book.  Even  at  the  end  of  the  mediaeval  period,  and  still  more 
at  the  end  of  the  sixteenth  century,  it  had  become  clear  that  the 
common  law  had  obtained  a  very  flexible  form  of  action  by 
means  of  which  many  various  agreements  could  be  enforced  if 
the  plaintiff  could  show  that  he  had  made  a  counter-promise,  or 
had  incurred  a  detriment  on  the  faith  of  the  defendant's  promise. 
During  the  mediaeval  period  the  law  cannot  as  yet  be  stated  in 
this  general  form,  nor  has  the  word  **  consideration "  yet  been 
applied  to  express  the  conditions  under  which  a  plaintiff  can 
succeed  in  this  action.  But  the  roots  of  this  doctrine  are  firmly 
fixed  in  the  law,  and  the  appearance  of  the  doctrine  itself  is  not 
far  off.  When  it  appears  we  shall  be  able  to  say  that  by  means 
of  a  series  of  developments  in  the  law  of  actions  the  common  law 
has  won  its  way  to  a  wholly  original  test  of  the  enforceability  of 
agreements — ^the  test  of  consideration. 

The  earlier  part  of  this  period  is  marked  by  the  presence  of 
several  competing  forms  of  action  which,  under  different  circum- 
stances, supplied  more  or  less  partially,  and  more  or  less  in- 
directly, a  remedy  for  breach  of  contract.  The  cases  in  which 
Account,  Covenant,  Debt,  and  Assumpsit  lay  might  have  been 
separately  generalized  and  reduced  to  rule,  and,  as  a  consequence, 
we  might  have  had  a  list  of  distinct  species  of  contracts,  but  no 
general  theory  of  contract  as  a  whole.  That  the  common  law 
was  saved  from  this  fate  is  due  mainly  to  three  causes,  (i)  The 
competition  for  business  among  the  common  law  courts,  and 
especially  the  competition  which,  at  the  end  of  the  period,  sprang 
up  between  the  common  law  courts  and  the  Chancery,  helped  to 
extend  those  actions  which  offered  the  best  remedies,  (ii)  The 
various  forms  of  action  were  consequently  so  extended  that  they 
were  always  tending  to  overlap  one  another,  and,  as  we  have 
seen,  they  were  allowed  to  become  in  many  cases  concurrent.^ 

^  Vol.  ii  455  n.  i :  above  428,  442-444,  447. 


454    CONTRACT  AND  QUASI-CONTRACT 

(iii)  The  action  of  assumpsit  offered  such  advantages  to  the  liti- 
gant, both  in  its  freedom  from  old  technical  restrictions  and  in 
its  capacity  for  expansion,  that  it  soon  showed  signs  of  covering 
the  whole  or  almost  the  whole  field  of  the  older  actions;^  and 
thus  the  theory  of  contract  developed  in  the  action  of  assumpsit 
became  the  theory  of  the  common  law.  It  was  largely  due  to 
the  fact  that  the  common  law  had  come  by  this  reasonable  and 
flexible  theory  of  contract  that  this  branch  of  the  law  was  able 
to  extend  its  borders  at  the  expense  both  of  the  law  of  property 
and  the  law  of  persons.  In  the  law  of  property  much  of  that 
miscellaneous  mass  of  incorporeal  things,  which,  as  we  have  seen, 
is  a  peculiar  characteristic  of  the  law  of  the  earlier  Middle  Ages, 
disappeared,  because  men  found  that  they  could  effect  their  ob- 
jects more  easily  by  making  a  contract  than  by  conveying  a  res. 
In  the  law  of  persons  special  contracts  came  to  regulate  many 
of  the  duties  involved  in  those  professions  and  callings  which,  in 
the  mediaeval  period,  seemed  to  rest  rather  upon  a  status  deter- 
mined by  law  than  upon  the  agreement  of  those  who  required 
the  services  of  such  persons.  In  this  country  the  action  of  as- 
sumpsit must  be  reckoned  a  technical  instrument  which  gave  no 
small  help  to  the  forces  which  were  making  for  the  transition 
from  status  to  contract  To  the  mediaeval  law  of  status  we  must 
now  turn. 

1  Thus  it  is  said  in  The  Doctor  and  Student,  Bk.  II  c.  24,  •'  It  is  not  much  argued 
in  the  Laws  of  England  what  diversite  is  between  a  contract,  a  concord,  a  promise, 
a  gift,  a  loan,  or  a  pledge,  a  bargain,  a  covenant,  or  such  other.  For  the  intent  of 
the  law  is  to  have  the  effect  of  the  matter  argued  and  not  the  terms." 


CHAPTER  IV 

STATUS 

MAINE'S  famous  dictum  that  "the  movement  of  progres- 
gressive  societies  has  hitherto  been  a  movement  from 
status  to  contract,"^  is  a  generalization  from  the  histori- 
cal development  of  institutions  and  rules  which  originated  in  the 
patriarchal  family.  It  is  applied  by  Maine  only  to  that  depart- 
ment of  law  which  mature  legal  systems  style  private  law,  and 
chiefly  to  that  department  of  private  law  which  comprehends 
those  topics  which  the  Roman  institutional  writers  grouped 
under  the  rubric  "law  of  persons."^  If  we  except  those  forms 
of  status  due  to  youth  or  mental  incapacity,  which  must  neces- 
sarily be  found  in  all  legal  systems  at  all  stages  of  their  develop- 
ment, the  dictum  is  in  this  department  of  private  law  very  largely 
true.  Thus,  in  Roman  law,  if  we  compare  the  status  of  the  filius- 
familias  or  the  married  woman  in  the  early  days  of  Roman  law 
with  their  status  under  Justinian ;  and  if  we  look  at  the  elimina- 
tion of  the  status  of  mancipium,  and  the  gradual  assimilation  of 
the  class  of  libertini  to  that  of  ingenui,  we  see  instances  of  the 
operation  of  this  principle.  Similarly,  we  can  see  it  in  operation 
in  English  law  if  we  look  at  the  history  of  the  status  of  the  villein 
and  the  married  woman.  But  we  must  not  give  the  dictum  a 
greater  extension  than  its  author  intended.  In  particular  we 
must  note  that  it  has  never  had  any  direct  application  in  the 
sphere  of  public  or  semi-public  law.  On  the  contrary,  the  growth 
in  progressive  societies  of  the  complexity  both  of  the  state  and 
of  social,  commercial,  and  industrial  relations  has  led  to  the 
growth  of  new  varieties  of  status.  Under  the  later  Roman 
Empire  the  soldier  and  the  civil  servant  occupied  a  far  more 
definitely  defined    status   than  in  primitive  society;   and  under 

^Ancient  Law  170;  cp.  Pollock's  comment  L.Q.R.  xxi  291-293;  he  suggests 
that  the  dictum  should  be  "limited  to  the  law  of  property  taking  that  term  in  its 
widest  sense  as  inclusive  of  whatever  has  a  value  measurable  in  exchange." 

2**  All  the  forms  of  Status  taken  notice  of  in  the  Law  of  Persons  were  derived 
from,  and  to  some  extent  are  still  coloured  by,  the  powers  and  privileges  anciently 
residing  in  the  Family.  If  then  we  employ  Status  ...  to  signify  these  personal 
conditions  only,  and  avoid  applying  the  term  to  such  conditions  as  are  the  immediate 
or  remote  result  of  agreement,  we  may  say  that  the  movement  of  progressive  societies 
has  hitherto  been  a  movement  from  Status  to  Contract,"  loc.  cit. 

455 


456  STATUS 

the  early  empire  one  of  the  effects  of  the  change  in  the  character 
of  slavery  produced  by  the  foreign  conquests  of  Rome  was  the 
statutory  creation  of  the  status  of  the  Latini  Juniani  and  the 
Dedditicii.  Under  all  modern  systems  of  law  the  soldier,  and 
under  most  continental  systems  of  law  the  civil  servant,  occupy 
a  status  unknown  to  early  systems  of  law ;  and  the  growth  of 
corporations  has  added  a  new  population  of  artificial  persons  to 
all  modern  states.  Religion,  too,  has  at  all  times  claimed  for  its 
priests  a  special  status ;  and  this  special  status  of  priests,  and 
the  still  more  special  status  of  those  who  occupy  the  higher 
ranks  in  religious  hierarchies,  have  been,  both  in  ancient  and  in 
modern  societies,  perhaps  the  most  enduring  of  all  forms  of  status. 
No  doubt  the  decay  of  certain  forms  of  status,  and  the  appropria- 
tion of  the  sphere  which  they  once  occupied  by  the  lav/  of  con- 
tract is  the  mark  of  certain  progressive  societies.  But  new  forms 
of  status  have  been  constantly  arising  and  it  is  the  fact  that  the 
societies  in  which  they  have  arisen  are  progressive  societies  that 
is  the  cause  and  occasion  for  their  creation. 

The  law  of  persons  or  status  in  the  mediaeval  common  law  is 
complex ;  and  the  cause  of  its  complexity  is  the  same  as  the 
cause  for  the  complexity  of  many  other  branches  of  that  law. 
We  have  seen  that  the  customary  basis  of  the  mediaeval  common 
law  often  led  to  the  retention  by  it  of  many  primitive  ideas  ;  and 
some  of  these  primitive  ideas  may  have  helped  to  perpetuate  old 
rules  as  to  the  legal  position  of  infants  and  their  guardians,  of 
married  women,  and  of  many  of  those  humbler  persons  which 
went  to  make  up  the  class  of  villeins.  On  the  other  hand,  neither 
the  English  state  nor  the  common  law  was  the  product  of  purely 
primitive  custom.  Ideas  drawn  from  the  civil  and  canon  law  had 
helped  to  mould  both ;  and  the  fact  that  the  English  state,  like 
the  other  states  of  Western  Europe,  was  part  of  the  Holy  Roman 
Empire  and  recognized  the  authority  of  the  Pope,  gave  to  all 
ecclesiastics  a  definite  status,  and  secured  recognition  for  the 
many  different  forms  of  status  which  existed  under  the  law  of 
the  church.  Thus  we  have  not  only  forms  of  status  which  are 
characteristic  of  a  primitive  society,  but  also  forms  of  status, 
corporate  status  for  instance,  which  were  called  into  existence 
by  the  new  needs  of  a  progressive  society ;  and  forms  of  status, 
the  status  of  the  king  for  instance,  which  are  the  product  of  both 
the  primitive  and  the  more  advanced  ideas.  No  doubt  the 
growing  supremacy  of  the  common  law  made  for  the  obliteration 
of  the  lines  of  division  between  status  and  status  ;  and  it  has 
always  been  an  arguable  question  at  what  point  so  few  differ- 
ences are  left  that  the  status  disappears.  In  the  mediaeval 
common  law,  for  instance,  the  growing  uniformity  of  the  criminal 


STATUS  457 

law  caused  the  difference  between  free  and  villein  from  some 
points  of  view  to  disappear ;  ^  but  no  one  would  deny  that  the 
villein  occupied  a  definite  status.  On  the  other  hand,  the  tend- 
ency of  the  common  law  to  absorb  the  jurisdiction  of  the  older 
commercial  courts  leaves  it  a  debatable  point  whether  or  not  we 
should  assign  a  definite  status  to  the  mediaeval  merchant^ 

But  debates  as  to  whether  this  or  that  class  occupies  a  definite 
status  are  apt  to  degenerate  into  barren  controversies  over  ter- 
minology. Whether  we  give  this  or  that  class  a  special  status 
it  is,  I  think,  clear  that  in  the  Middle  Ages  there  were  a  number 
of  persons  who  occupied  a  special  position  of  their  own.  We 
should  perhaps  be  guilty  of  an  anachronism  if  we  called  them 
abnormal  persons  ;  for  it  may  be  doubted  whether  early  law 
recognizes  such  a  thing  as  a  normal  person.  It  recognizes  rather 
various  ranks  and  groups  and  classes,  each  occupying  its  own 
legal  position  in  a  loosely  organized  society.^  The  very  idea  of 
a  normal  person  is  the  creation  of  a  common  law  which  has 
strengthened  the  bonds  of  this  society  by  administering  an  equal 
justice  to  all  its  members.  All  through  this  period  the  mediaeval 
common  law  was  creating  the  idea  of  the  normal  person — the 
free  and  lawful  man  of  English  law.^  But  all  the  time  primitive 
ideas,  religious  beliefs  and  ecclesiastical  law,  political  legal  and 
commercial  necessities,  and  social  differences,  combined  to  pro- 
duce large  and  variegated  classes  of  persons  who,  to  a  greater  or 
a  lesser  extent,  departed  from  this  norm. 

The  truth  of  this  will  be  apparent  if  we  enumerate  some  of 
the  "  sorts  and  conditions  "  of  men  whom  Maitland  has  described 
in  the  History  of  English  law,^  and  glance  at  one  or  two  other 
classes  of  persons  who  occupied  a  special  status  of  their  own. 
We  have  the  forms  of  status  created  by  permanent  physical  facts 
— the  infant  ^  and  the  lunatic,^  to  whom  in  mediaeval  days  we 
should  add  the  leper.^  Primitive  ideas  helped  to  create  the 
status  of  the  married  woman  ^  and  the  villein,^^  and  perhaps  to 
deny  the  woman  any  place  in  public  law.^^     Religious  beliefs 

1  Below  493-494' 

2  See  P.  and  M.  i  449-450,  where  the  opinion  is  expressed  that  neither  in  public 
nor  in  private  law  can  the  merchant  be  said  to  have  a  special  status. 

3  See  vol.  ii  464-465. 

^Speaking  of  the  thirteenth  century  Maitland  says,  "Among  laymen  the  time 
has  indeed  already  come  when  men  of  one  sort,  free  and  lawful  men  [liberi  et 
legates  homines)  can  be  treated  as  men  of  the  common,  the  ordinary,  we  may  per- 
haps say  the  normal  sort,  while  men  of  all  other  sorts  enjoy  privileges  or  are  subject 
to  disabilities  which  can  be  called  exceptional,"  P.  and  M.  i  390. 

5  Bk.  II  chap.  ii. 

^  Below  510-520.  '  Vol.  i  473-476. 

^  P.  and  M.  i  463.  ^  Below  520-533. 

^^  Below  491-510.  ^^  P.  and  M.  i  465. 


458  STATUS 

and  ecclesiastical  law  gave  to  priests  a  special  status ;  ^  and  to 
the  monk,  who  was  treated  as  legally  dead,  a  status,  or  rather 
absence  of  status,  still  more  special.^  We  shall  see,  too,  that 
ecclesiastical  law  had  no  small  influence  in  introducing  into 
English  law  the  idea  of  the  corporate  person.^  Both  religious 
and  political  ideas  helped  to  create  the  peculiar  status  of  the 
Jew ;  ^  and  political  needs  tended  gradually  to  define  the  position 
of  the  alien. ^  We  shall  see  that  both  political  and  legal  ideas 
helped  to  give  the  king  his  very  peculiar  status  in  English  law.*^ 
The  legal  sanctions  applied  by  the  common  law  to  enforce  its 
rules,  adjective  and  substantive,  gave  rise  to  the  status  of  the 
outlaw  and  person  attainted,''  and  those  applied  by  the  ecclesi- 
astical law  to  the  status  of  the  excommunicate.^  Political  needs 
in  the  sphere  of  local  government  helped  to  develop  and  turn 
to  secular  uses  the  ecclesiastical  idea  of  the  corporate  person  ;  ^ 
and  commercial  needs  will  soon  begin  to  take  an  even  more 
important  share  in  this  work.^^  Lastly,  social  and,  to  a  small 
extent,  legal  differences  tended  to  make  the  position  of  the  peer 
very  distinct  from  that  of  the  commoner ;  ^^  and  the  position 
of  the  trader  to  some  extent  diffetent  from  other  members  of  the 
community.  ^^ 

It  is  unnecessary  at  this  point  to  describe  all  these  many 
classes  of  persons  who  occupied  a  more  or  less  special  status. 
Of  the  lunatic,  the  Jew,  and  the  excommunicate,  the  peer,  and  the 
merchant,  I  have  already  said  something  in  a  former  volume  of 
this  History;  and  of  the  merchant,  the  ordinary  subject,  and  the 
alien,  I  shall  speak  in  later  volumes.  At  this  point  I  shall  deal 
with  the  King ;  the  Incorporate  Person ;  The  Villein ;  the 
Infant ;  and  the  Married  Woman. 

§  I.  The  King 

The  position  which  the  king  and  his  prerogative  hold  in  the 
full-grown  common  law  is  well  summarized  in  Blackstone's 
Commentaries.^^  Beginning  with  the  statement  that  the  king 
is  subject  to  law,  Blackstone  proceeds  to  distinguish  between 
his  direct  and  his  incidental  prerogatives.  The  direct  pre- 
rogatives   "  are    such    positive   substantial    parts    of  the    royal 

^  P.  and  M.  i  422  440;  for  the  benefit  of  clergy  see  above  294-302. 
2  Ibid  416-421.  2  Below  470,  474-475. 

4  Vol.  i  45-46;  P.  and  M.  i  451-458. 

5  P.  and  M.  i  441-449 ;  Bk.  iv  Pt.  II.  c.  6  §  3. 

"  Below  460-469.  '^  P.  and  M.  i  459-461. 

8  Vol.  i  631 ;  P.  and  M.  i  461-463. 

9  Below  474-475.  1"  Bk.  iv.  Pt.  II.  c.  6  §  2. 
"  Vol.  i  357-35S;  P-  and  M.  i  391-394. 

^2  Vol.  i  526-544.  ^2  i  231  seqq. 


THE  KING  459 

character  and  authority  as  are  rooted  in  and  spring  from  the 
king's  political  person."  By  virtue  of  these  prerogatives  he  is 
personally  sovereign,  and  has  the  pre-eminence  over  all  within 
his  realm  ;  he  can  do  no  wrong ;  he  can  never  die ;  he  is  the 
representative  of  the  state  in  its  dealings  with  foreign  nations ; 
he  is  a  part  of  the  legislature ;  the  head  of  the  army ;  the 
fountain  of  justice,  always  present  in  all  his  courts ;  the  fountain 
of  honour;  the  arbiter  of  commerce;  the  head  of  the  church. 
The  incidental  prerogatives  are,  so  Blackstone  tells  us,  "only 
exceptions  in  favour  of  the  crown  to  those  general  rules  that  are 
established  for  the  rest  of  the  community."  Instances  are  the 
rules  that  no  costs  shall  be  recovered  against  the  king,  that  he 
cannot  be  a  joint  tenant,  that  a  debt  due  to  him  is  preferred. 
We  could  have  no  better  illustration  of  the  gradual  way  in  which 
both  the  English  constitution  and  the  common  law  have  been 
built  up  than  these  doctrines  as  to  the  meaning  and  extent  of 
the  king's  prerogative.  In  fact,  the  prerogative  is  the  oldest 
part  of  the  constitution,  and  the  law  which  centres  round  it  bears 
upon  it  the  marks  of  all  the  varied  phases  through  which  the 
constitution  has  passed.  It  is  this  fact  which  gives  to  it  its 
'*  peculiar  import,"  and  makes  it  impossible  to  define  it  com- 
pletely **  by  any  theory  of  executive  functions."  ^ 

Taking  a  broad  view  of  our  legal  and  constitutional  history, 
we  can  see  three  distinct  periods  in  its  development,  (i)  During 
the  mediaeval  period  the  king  was  regarded  quite  as  much  as  a 
superior  feudal  lord  with  special  privileges  as  a  ruler  entrusted 
with  the  executive  powers  of  the  state.  It  is  for  this  reason 
that  the  doctrines  as  to  those  prerogatives  which  Blackstone 
calls  "  incidental  "  were  then  elaborated.  (2)  It  is  to  the  lawyers 
of  the  sixteenth  and  early  seventeenth  centuries  that  we  owe 
those  attributes  of  perfection  and  immortality  with  which  the 
law  still  invests  the  king.  They  gave  him  a  politic  capacity, 
and  they  emphasized  his  powers  in  such  a  way  that,  through 
his  prerogative,  he  was  able  to  act  as  the  executive  of  a  modern 
state.  What  Blackstone  calls  the  direct  prerogatives  of  the 
crown  were  given  their  modern  shape  by  lawyers  who  based 
their  theories  upon  the  achievements  of  the  Tudor  dynasty. 
(3)  In  the  seventeenth  century  the  controversy  as  to  the  relation 
of  the  prerogative  to  the  law  was  fought  out  and  decided.  The 
events  of  that  century  decided  that  the  prerogative  was  subject 
to  law ;  and  Blackstone  prefaces  his  account  of  it  by  a  clear 
statement  to  this  effect.  In  this  section  we  are  concerned  only 
with  the  mediaeval  period  and  its  influence  upon  the  subsequent 
law. 

^Hallam,  Middle  Ages  iii  148. 


460  STATUS 

In  this  period  the  prerogative  has,  so,  to  speak,  a  double 
aspect.  The  king  is  the  head  and  the  representative  of  the 
English  state  in  a  truer  sense,  perhaps,  than  any  other  ruler  in 
Europe  could  claim  to  be  the  head  and  representative  of  his 
state.  The  strong  centralized  government  which  had  given 
England  a  common  law  gave  the  king  this  position.  But,  for  all 
that,  men's  legal  and  political  ideas  were  cast  in  a  feudal  mould. 
Legal  theories  were  necessarily  influenced  by  these  ideas.  They 
have  exercised,  as  we  have  seen,  an  enduring  influence  upon  the 
land  law,  and  they  had  some  effect  upon  the  law  of  treason. 
They  exercised  at  this  period  a  large  influence  upon  the  view 
which  the  law  took  of  the  king  and  his  prerogative.  I  shall, 
therefore,  say  something,  firstly,  of  the  feudal  ideas  which 
coloured  men's  conception  of  the  prerogative  at  this  period,  and, 
secondly,  of  the  national  ideas. 

The  Feudal  Ideas 

The  organization  of  the  average  manor  was  the  organization 
of  the  kingdom  in  little.^  The  king  was  very  like  a  feudal  lord 
writ  large.  His  powers  were  the  powers  of  other  feudal  lords 
magnified.  "He  has  hardly  a  power,"  says  Maitland,  *'for 
which  an  analogy  cannot  be  found  elsewhere."  ^  It  is  from  this 
point  of  view  that  the  prerogative  is  defined  as  libertas  or  privi- 
legium  regis — as  "exceptions  in  favour  of  the  crown  to  those 
general  rules  that  are  established  for  the  rest  of  the  community."  ^ 
The  contents  of  the  so-called  statute  Praerogativa  Regis  are  a 
good  illustration  of  this  conception  of  the  prerogative.*  Accord- 
ing to  its  sixteen  chapters  it  consists  of  slightly  exaggerated 
feudal  privileges.  Certain  procedural  privileges  were  gradually 
added  in  this  period ;  ^  and  when  in  i  548  Sir  William  Staunford 
compiled  his  exposition  of  the  king's  prerogative  from  the  Year 
Books  he  followed  the  chapters  of  the  statute,  merely  adding  an 
account  of  the  legal  process  which  could  be  used  by  or  against 
the  crown.  Staunford,  indeed,  did  not  forget  that  this  exposition 
did  not  exhaust  the  subject.^     Already  in  his  day  these  feudal 

1  See  Vinogradoff,  Villeinage  324,  325. 

"^  P.  and  M.  i  497.  ^Co.  Litt.  f.  gob  ;  above  459. 

^  For  this  statute  see  vol.  ii  223  n.  i ;  vol.  i  473  n.  8.  The  matters  dealt  with  are 
wardship,  marriage,  primer  seisin,  dower,  fines  lor  alienation,  advowsons,  idiots, 
lunatics,  wreck,  the  lands  of  Normans,  intrusion  of  the  heirs  of  tenants  in  chief 
into  their  lands  before  they  have  done  homage  to  the  king  and  got  seisin  fiom  him, 
escheats  of  the  lands  of  a  bishop's  tenants  while  the  see  is  vacant,  interpretation  of 
the  king's  grants,  the  lands  of  felons  attainted. 

«See  e.g.  Y.BB.  8  Ed.  II.  (S.S.)  x'ioper  Scrope  arg. ;  12,  13  Ed.  III.  (R.S)  332; 
Bacon's  argument  in  the  case  De  Rege  Inconsulto,  Works,  vii  681 ;  for  the  history 
of  the  subject's  remedies  against  the  crown,  see  Bk.  iv  Pt.  IT.  c.  6  §  i. 

*"  Divers  other  Prerogatives  there  bee,  whiche  the  king  hath  by  the  order  of  the 
common  la  we  that  bee  not  within  this  statute  comprised." 


THE  KING  461 

privileges  of  the  crown  were  sinking  into  the  background.  They 
were  becoming  merely  the  "  incidental "  prerogatives  of  the 
crown — the  ordinary  private  rights  of  the  crown  as  contrasted 
with  the  sovereign  position  it  held  or  claimed  to  hold  in  public 
law.  It  may  be  said,  too,  that  an  exposition  of  the  prerogative 
derived  from  reported  cases  will  always  tend  to  exaggerate  these 
incidental  prerogatives,  because  it  is  chiefly  about  them  that 
there  is  argument  in  the  law  courts ;  ^  and  that  the  lawyers, 
because  they  know  more  about  them,  may  forget  to  attach  due 
weight  to  the  more  important  prerogatives  which  make  the  king  the 
head  of  the  state.  We  could  imagine  a  royalist  lawyer  and  states- 
man like  Bacon  levelling  this  charge  against  a  parliamentary 
lawyer  like  Coke;  and  we  should  be  obliged  to  admit  that  it 
contained  an  element  of  truth.  But,  though  in  later  days  these 
feudal  privileges  of  the  king  were  matters  of  very  small  account, 
and  formed  but  a  small  part  of  the  sum  total  of  the  prerogative, 
we  cannot  in  this  period  disregard  either  the  ideas  which  under- 
lay them  or  the  consequences  which  flowed  from  them.  That 
these  ideas  had  then  an  important  effect  upon  the  powers  and 
position  of  the  king  there  are  many  proofs. 

Allegiance  was  due  to  the  king  from  his  subjects,  just  as 
homage  and  fealty  were  due  from  a  tenant  to  his  feudal  lord. 
It  is  true  that  an  English  king  could  insist  upon  an  oath  of 
allegiance  from  all  his  subjects,  whosesoever  men  they  were. 
It  is  true  that  in  later  law  many  deductions  as  to  the  subject's 
position  in  relation  to  the  crown  were  drawn  from  the  nature 
and  consequences  of  allegiance.^  But  these  deductions  were 
not  drawn  in  this  period ;  and  the  idea  that  allegiance  constituted 
a  mutual  tie  to  which  either  party  could  put  an  end  leaves  its 
traces  even  in  English  history.  Though  in  1 2 1 3  Stephen  Langton 
had  argued  that  the  king  could  not  wage  war  against  his  barons 
without  the  judgment  of  his  court,^  this  did  not  negative  the  right 
of  either  king  or  subject  to  get  rid  of  the  tie  of  allegiance.  In 
1 2 1 5  the  barons  gave  a  solemn  notice  {diffidatid)  that  they  had 
renounced  their  allegiance;^  and  Henry  III.  sent  Richard,  the 
Earl  Marshal,  a  formal  diffidation  before  he  marched  against 
him — a  step  which  in  the  opinion  of  the  earl  legalized  his  resist- 
ance to  the  king.^  If,  in  fact,  this  solemn  notice  that  allegiance 
had  been  renounced  was  given,  the  levying  of  war  against  the 
king  was  probably  not  treason  till  Edward  III.'s  statute.^     Even 

1  As  Bacon  said  in  the  case  of  the  Postnati  (Works  vii  646),  *'  Although  the 
king  in  his  person  be  solutus  legibus,  yet  his  acts  and  grants  are  limited  by  law,  and 
we  argue  them  every  day." 

2  See  Bk.  iv  Pt.  II.  c.  6  §  3.  ^  McKechnie,  Magna  Carta  29. 
*Ibid  34 ;  and  see  Adams,  Origin  of  the  English  Constitution  181  n, 
^Matthew  Paris  (R.S.)  iii  249,  258. 

•*  P.  and  M.  ii  503-505 ;  above  288. 


462  STATUS 

under  that  statute  a  conspiracy  to  levy  war  was  no  treason. 
When  Edward  11.  and  Richard  11.  were  deposed,  there  were  no 
such  theoretical  difficulties  as  were  felt  in  i688.  In  the  first  case, 
Sir  William  Trussell,  as  proxy  for  the  lords  spiritual  and  temporal 
and  others,  renounced  their  allegiance  :  in  the  second  case,  Richard 
released  his  subjects  from  their  allegiance.^  We  are  not  surprised 
to  find  that  the  feudal  tie  between  lord  and  man  was  often 
found  to  be  stronger  than  the  national  tie  between  king  and 
subject.  The  men  of  his  earldom  of  Chester  supported  Richard 
II.  to  the  last.  The  duchy  of  Lancaster  always  afforded  a  refuge 
for  Henry  VI. ^ 

The  idea  which  in  later  law  appears  in  the  form  of  the  maxim 
that  the  king  can  do  no  wrong  is  in  this  period  simply  the  applica- 
tion of  the  ordinary  rule  that  a  lord  cannot  be  sued  in  his  own 
court.^  The  king  has  not  always  been  the  sole  fountain  of  justice. 
Statutes  were  needed  in  Richard  II.'s  reign  to  stop  an  attempt 
to  create  a  new  form  of  private  jurisdiction.*  We  have  seen  that 
in  Henry  VI.'s  reign  the  whole  apparatus  of  local  government 
was  controlled  by  a  turbulent  baronage ;  and  that  the  livery  of  a 
great  lord  was  often  a  better  protection  than  the  king's  peace. 

Perhaps  the  most  important  influence  of  these  feudal  ideas 
may  be  found  in  the  confusion  between  proprietary  rights  and 
governmental  rights  which  was  fostered  by  them.  Feudalism  is, 
as  we  have  seen,  both  a  system  of  property  law  and  a  system  of 
government.^  Political  rights  and  privileges  were  regarded  as 
property ;  and  the  king's  political  rights  and  privileges — his 
prerogative — did  not  escape  the  influence  of  this  idea.  The 
descent  of  the  kingdom  itself  is  regulated  by  much  the  same  law 
as  the  descent  of  an  estate,^  and,  as  we  have  seen,  the  descent  of 
the  kingdom  had  in  Henry  II I. 's  reign  a  very  direct  bearing  upon 
the  law  of  inheritance."  The  king  can  sell  privileges  and  franchises, 
just  as  he  can  sell  or  give  away  the  royal  demesne.  No  distinction 
is  drawn  between  the  king's  private  property  and  the  property 
which  he  holds  in  the  right  of  his  crown. ^     That  the  king  should 

^  ••  Ego  Willielmus  Trussell,  vice  omnium  de  terra  Anglias  et  totius  parliamenti 
procurator,  tibi  Edwardo  reddo  homagium  prius  tibi  factum,  et  extunc  diffido  te  et 
privo  omni  potestate  regia  et  dignitate,  nequaquam  tibi  de  caetero  pariturus," 
(Knighton  (R.S.)  i  441.  "  Ego  Ricardus  omnes  archiepiscopos,  etc.  .  .  .  et  ligeos 
homines  meos  quoscunque  .  .  .  a  juramento  fidelitatis  ethomagii,  et  aliis  quibuscunque 
mihi  factis,  omnique  vinculo  ligeantiae  ac  regaliae  ac  dominii  quibus  mihi  obligati 
fuerunt  vel  sint,  vel  alias  quomodo  libet  astricti,  absolvo,"  R.P.  iii  416,  417  (i  Hy. 
IV.  nos  10-14) ;  both  passages  are  cited  by  Allen,  Prerogative  note  P. 

2  Stubbs,  C.H.  iii  551,  552.  ^BeJow  465-466. 

4  Vol.  i  178  n.  8.  5  Ibid  17-18. 

"  P.  and  M.  i  497-499.  '  Above  175. 

8  P.  and  M.  i  502.  We  see  perhaps  an  attempt  to  distinguish  them  in  Edward 
III.'s  v/ill,  see  P.  and  M.  i  506  n.  2;  and  Henry  V.,  though  he  could  clearly  leave 
his  property  by  his  will,  was  unable,  so  Parliament  decided,  to  bequeath  the  kingdom, 
R.P.  iv  326  ;  Nicholas  iii  xii,  xiii ;  but  we  can  see  that  the  distinction  is  not  qarried 


THE  KING  463 

*'  live  of  his  own  "  was  the  ideal  of  mediaeval  Parliaments.  That 
meant  that  the  king's  household  should  be  maintained  from  the 
royal  estates;  and  of  the  king's  household  all  the  servants  of 
central  government  were  members. 

In  this  period  these  feudal  ideas,  though  they  left  the  king 
free  to  use  his  property  and  his  prerogatives  as  he  pleased,  yet 
helped  to  weaken  his  position  by  depriving  him  of  any  peculiar 
sanctity.  Moreover,  as  we  shall  now  see,  they  affected  what  I 
have  called  the  national  idea  of  his  prerogative. 

The  Natiofial  Ideas 

Something  has  already  been  said  of  the  position  of  the  king 
in  his  capacity  of  the  fountain  of  justice,  and  head  and  representa- 
tive of  the  state.  We  have  seen  that  Bracton  strongly  emphasized 
these  attributes  of  the  prerogative.^  We  have  seen,  too,  that  the 
king's  prerogative  was  regarded  as  subject  to  law,  and  subject  in 
some  respects  to  the  control  of  Parliament ;  but  that  the  problems 
involved  in  his  relations  to  the  law  and  to  Parliament  were  never 
really  faced  in  this  period.^  But,  in  spite  of  the  high  position  thus 
assigned  by  the  law  to  the  king,  the  law  never  regarded  him  as 
being  anything  else  than  a  natural  man.  "  The  mediaeval  king," 
says  Maitland,^  "was  every  inch  a  king,  but  just  for  this  reason 
he  was  every  inch  a  man  and  you  did  not  talk  nonsense  about  him. 
You  did  not  ascribe  to  him  immortality  or  ubiquity,  or  such  powers 
as  no  mortal  can  wield.  If  you  said  that  he  was  Christ's  Vicar, 
you  meant  what  you  said,  and  you  might  add  that  he  would 
become  the  servant  of  the  devil  if  he  declined  towards  tyranny. 
...  In  all  the  Year  Books  I  have  seen  very  little  said  of  him  that 
was  not  meant  to  be  strictly  and  literally  true  of  a  man,  of  an 
Edward  or  a  Henry."  This  manner  of  looking  at  the  king  has 
some  very  important  effects  upon  the  manner  in  which  the  law 
regards  his  prerogatives.  It  prevents  at  once  the  attribution  to 
the  king  of  those  "transcendent  qualities"  with  which  the  lawyers 
of  a  later  age  invested  him.     Let  us  look  at  some  of  its  results. 

The  king  can  die  and  his  peace  expires  with  him.  A  well- 
known  passage  in  the  Anglo-Saxon  Chronicle  tells  us  that,  on  the 
death  of  Henry  I.,  "there  was  tribulation  soon  in  the  land,  for 
every  man  that  could  forthwith  robbed  another."  ^  On  the  death 
of  Henry  III.,  Edward  I.'s  peace  was  sworn  on  the  following  day, 
and  he  began  his  reign  on  the  day  of  his  father's  funeral,  though 

far—  effect  is  given  to  the  dispositions  of  the  will  through  the  council  by  the  ordinary 
machinery  of  the  state,  cp.  Nicholas  iii  34,  ^9,  57,  60,  68,  69,  100,  105,  115,  127,  131 ; 
iv  128,  143,  144,  226,  229,  230. 

1  Vol.  ii  253.  2  Ibid  255.256,  564. 

3  L.Q.R.  xvii  132.  4  stubbs  (Sel.  Ch.)  98. 


464  STATUS 

absent  at  the  time  in  the  Holy  Land.^  Succeeding  kings  began 
to  reign  immediately  on  the  demise  of  their  predecessors.  But 
even  as  late  as  1485  many  supposed  that  there  would  be  a  short 
interregnum  after  the  battle  of  Bosworth ;  ^  and  in  the  reign  of 
James  I.  the  judges  found  it  necessary  to  resolve  that  "  coronation 
is  but  a  royal  ornament  and  solemnization  of  the  royal  descent, 
but  no  part  of  the  title  ; "  and  that  "  by  the  laws  of  England  there 
can  be  no  interregnum  within  the  same."  ^ 

It  was  recognized  in  Henry  HI.'s  reign  that  the  king  could  be 
under  age,  and  was  entitled  to  the  privileges  of  minority.  Like 
any  other  infant  he  insisted  that,  with  respect  to  his  rights,  the 
status  quo  should  be  maintained  during  his  minority,  and  that 
therefore  grants  made  during  his  minority  needed  confirmation 
when  he  came  of  age.^  That  view  was  acted  on  when  in  1225 — 
the  year  after  Henry  HI.'s  minority  had  been  declared  to  be  at  an 
end — the  Great  Charter  and  the  Charter  of  the  Forest  were  con- 
firmed at  a  price  ;  ^  and  thus  the  fact  that  Magna  Carta  assumed  its 
final  form  in  that  year  is  due  to  the  fact  that  the  king  till  then  was 
a  minor.  Even  in  Henry  VI. 's  reign  we  can  see  some  traces  of 
this  idea ;  ^  but  by  that  time  it  was  beginning  to  be  seen  that  it 
was  possible  to  distinguish  the  king  from  the  human  child  who 
occupied  the  throne.  Already  in  Edward  HI.'s  reign  a  reporter 
tells  us  that  several  "  peers  and  sages  of  the  realm  "  are  saying  that 
the  king's  gift  will  not  be  defeated  by  his  nonage ;  but  he  adds  a 
quaere. ''^  In  1427  ^  the  chancellor  "  reherced  that  how  be  it  that 
as  great  auctorite  of  governaille  is  now  in  oure  saide  sovereign 
lorde's  persone  duryng  his  saide  tendre  eage  as  ever  shal  be  here- 
after." When  such  words  could  be  spoken  the  law  is  not  far  from 
the  idea  that  the  king  is  never  a  minor.  But,  though  such  an  idea 
was  fostered  by  a  minority,  it  tended  all  through  this  period  to 
sink  into  the  background  when  the  age  of  majority  was  attained. 

We  do  not  find  that  any  one  says  that  the  king  can  do  no 
wrong.     Indeed,  the  council  made  due  provision  for  the  physical 

1  P.  and  M.  i  506.  Henry  VI.  succeeded  the  day  after  Henry.  V.'s  death 
Nicholas  iii  i. 

2  ♦'  The  council  of  the  city  [of  York]  which  used  to  date  its  sittings  by  the  year 
of  the  king's  reign,  wrote,  the  day  after  Henry's  victory,  '  vacata  regali  potestate,'  " 
Gairdner,  Letters  and  Papers  of  Richard  HI.  and  Henry  VH.  (R.S.)  ii  xxxi. 

^Calvin's  Case  (1608)  7  Co.  Rep.  lob,  11. 

^  Below  513;  P.  and  M.  i  507,  508.  •'McKechnie,  Magna  Carta  153-155. 

^  Nicholas  iii  324,  the  council  will  not  definitely  decide  the  question  whether 
Beaufort's  acceptance  of  the  cardinal's  hat  meant  vacation  of  his  English  bishopric, 
because  "  Nolebant  nee  audebant  praejudicare  Regi  durante  minore  aetate ;  "  cp.  also 
ibid  325  ;  ibid  iv  95,  it  is  said  that  a  truce  with  France  might  be  concluded,  but  not 
a  permanent  peace,  "  for  as  of  pes  it  semeth  there  ne  may  noon  be  concluded  con- 
sidering the  tendrenesse  of  the  King's  aage ;  "  perhaps  we  may  see  the  same  idea  in 
ibid  iv  62,  where  it  is  said  that  offices  should  be  filled  preferably  by  appointing  those 
who  had  served  the  king's  father  or  grandfather  ;  for  survivals  in  Ed.  VI. 's  reign  see 
Tanner,  Constitutional  Documents  100. 

'  26  Ass.  pi.  54.  ^  Nicholas  iii  238. 


THE  KING  465 

chastisement  of  Henry  VI. 's  faults  ;^  and  they  remonstrated  with 
him  if  he  attempted  to  disregard  their  advice,  pointing  out  his  lack 
of  years  and  experience.^  It  is  true  that  the  king  could  not  be 
sued  in  his  own  courts.  Whatever  doubts  there  may  have  been 
in  the  thirteenth  century  as  to  the  existence  of  a  power  in  the 
assembled  baronage  to  coerce  the  king,^  his  incapacity  to  be  thus 
sued  had  been  a  recognized  principle  of  English  law  since  Bracton's 
days ;  *  but  this  is  no  peculiar  privilege ;  for  no  feudal  lord  could 
be  sued  in  his  own  court.^  It  is  remarkable  that  in  Edward  III.'s 
reign  judges  could  be  found  who  believed  the  fable  told  by  a 
counsel  in  1 307  ^  that  there  had  been  a  time  when  the  king  was  sued 
in  his  own  courts  like  an  ordinary  person.^  But  this  fact  shows 
clearly  enough  that  the  law  had  not  yet  come  to  the  conclusion 
that  the  king  can  do  no  wrong.  It  would  have  been  impossible 
for  any  judge  to  have  believed  this  fable,  if,  as  in  later  times,  the 
king's  incapacity  to  be  sued  had  been  regarded  merely  as  a  particular 
consequence  flowing  from  the  general  principle  that  he  can  do  no 
wrong.  But  just  as  we  can  see  some  signs  of  the  growth  of  the 
idea  that  the  king  cannot  be  a  minor,^  so  we  can  see  some  signs  of 
the  growth  of  the  idea  that  the  king  can  do  no  wrong.  We  have 
seen  that  lawyers  and  political  philosophers  held  the  view  that  re- 
straints on  the  king's  power  which  prevented  him  from  doing  wrong 
were  no  real  diminution  of  his  power ;  ^  and  this  view  was,  it  seems 
to  me,  the  basis  of  the  practical  rule  laid  down  by  Huse  in  1485  that 
there  were  certain  acts  which  the  king  could  not  do,  as,  if  he  did 
wrong,  the  subject  would  have  no  remedy.^^  But,  when  once 
this  practical  rule  has  been  accepted,  it  will  soon  seem  to  be  a 
somewhat  obvious  consequence  that  the  king  can  do  no  wrong. 
And  in  fact  this  consequence  was  being  drawn,  and  older  views  were 
disappearing,  simultaneously  with  the  statement  of  this  practical 
rule.  In  1 342-1 343  there  was  no  hesitation  in  imputing  a  wrong 
to  the  king ;  ^^  and  this  was  in  accordance  with  the  language  of 

1  Nicholas  iii  297,  298,  300 — "  Item  the  said  Erie  shal  have  auctorite  and  power 
to  chastise  the  Kyng  after  his  goode  avis  and  discrecion  whan  the  Kyng  trespasseth 
or  doth  amys ;  "  see  also  ibid  iv  134,  135. 

2  Ibid  iv  287-289 ;  v  88,  89.  ^Vo\.  ii  255. 

*  P.  and  M.  i  500,  501 ;  Bracton's  Note  Book  case  1108  there  cited. 

^P.  and  M.  i  502,  "  He  cannot  be  compelled  to  answer  in  his  own  court,  but 
this  is  true  of  every  petty  lord  of  every  petty  manor ;  that  there  happens  to  be  in  this 
world  no  court  above  his  court  is,  we  may  say,  an  accident." 

'Y.E.  33-35Ed.  I.  (R.S.)47o. 

7  Y.BB.  22  Ed.  III.  Hil.  pi.  25  ;  24  Ed.  III.  Trin.  pi.  40;  43  Ed.  III.  Mich.  pi. 
12  ;  for  an  account  of  these  cases,  and  for  the  history  of  the  growth  of  special  remedies 
against  the  crown  see  Bk.  iv  Pt.  II.  c.  6  §  i. 

8  Above  464.  8  Vol.  ii  253,  435.  ^°  Above  388  n.  5. 

"  "  If  the  escheator,  with  warrant,  take  an  inquest  which  serves  for  the  king's 
benefit,  and  he  seizes,  he  does  no  wrong  in  seizing,  as  the  fact  is  in  our  case,  and 
whether  the  king  had  right  or  committed  wrong,  the  thing  seized  shall  be  sued  out  of 
his  hand,"  Y.B.  17  Ed.  III.  (R.S.)  16^  per  W.  Thorpe,  arg. 

VOL.   ni. — 30 


466  STATUS 

Bracton  and  of  later  authorities.^  In  1457  it  was  affirmed  on  one 
side  and  denied  on  the  other  that  the  king  could  be  a  disseisor ;  ^ 
and  in  1483  the  question  whether  or  no  the  king  could  be  a  disseisor 
led  to  a  statement  in  the  Chancery,  which  was  agreed  to  by  all  the 
judges  and  Serjeants,  of  the  general  principle  that  the  king  cannot 
commit  a  wrong.^  But  as  yet  this  was  a  very  new  principle.  It 
was  not  till  the  sixteenth  century  that,  with  the  growth  of  the  idea 
of  the  dual  capacity  of  the  king,  it  became  acclimatized  in  the  law. 
It  was  not  till  the  seventeenth  century  that  it  was  made  the  basis  of 
the  modern  doctrine  of  ministerial  responsibility.^ 

In  fact  throughout  the  mediaeval  period,  the  king,  though  he 
was  the  head  of  the  state,  was  regarded  as  a  natural  man. 
Except  when  the  king  was  a  minor  we  see  but  few  signs  that 
any  one  thinks  that  he  has  one  capacity  as  man  and  another 
as  king.  The  feudal  ideas  as  to  the  king  and  his  prerogative 
prevented  the  growth  of  such  a  notion.  To  have  allowed  that 
the  king  was  a  ruler  differing  in  kind  from  any  other  ruler  would 
have  run  counter  to  the  deeply-rooted  ideas  which  saw  in  him 
and  his  powers  little  more  than  the  person  and  the  powers  of  a 
feudal  lord  enlarged.  It  would  have  seemed  to  many  that  a 
king  whose  powers  were  greater  and  altogether  unlike  those  of 
other  lords  would  be  a  tyrant.  Therefore,  to  elevate  unduly 
the  office  and  the  prerogative  of  the  king,  and  to  theorize  about 
his  kingly  capacity  as  the  head  of  the  state,  was  not  a  popular 
exploit,  as  Richard  II.  found  to  his  cost.^  On  the  other  hand, 
the  king,  from  his  point  of  view,  might  well  think  twice  before 
adopting  it.  A  separation  between  his  prerogative  and  his  person 
might  mean  a  diminution  of  that  free  control  which  he  exercised 
over  his  property,  and  of  that  free  discretion  which  he  exercised 
in  the  government  of  the  state.  It  might  be  argued  that  the 
natural  man  ought  to  be  restrained  in  the  interests  of  the  kingly 
office.  It  was  chiefly  for  this  reason  that  in  Edward  II.'s  reign 
the  assertion  of  this  doctrine  had  been  made  the  basis  of  accusa- 
tions of  treason.*'     It  was  a  suspected  theory — suspected  both  by 

^  See  Ehrlich,  Vinogradoff,  Oxford  Studies  vi  42-43,  127-128. 

2Y.B,  35  Hy.  VI.  Trin.  pi.  i  (p.  62)  Danvers,  J.,  said,  '•  Le  Roy  puit  faire  tort 
a  un  sibien  come  un  auter  person  puit  faire,  et  envers  luy  jeo  auray  remedy  per  voie 
de  petition  come  jeo  auray  envers  auter  person  per  voie  d'accion ;  "  but  Moyle,  J., 
said  at  p.  61,  '•  Le  Roy  ne  disseisera  aucun  home." 

^  "  Le  Roy  ne  poet  esse  dit  que  fist  tort ;  car  si  on  veut  disseiser  un  auter,  al  ceps 
le  Roy,  ou  le  Roy  n'ad  droit,  le  Roy  ne  poet  esse  dit  disseisor,"  Y.B.  i  Ed.  V.  Trin. 
pi.  13  ;  cp.  Ehrlich,  Vinogradoff,  Oxford  Studies  vi  139  n.  4. 

•*  Hale  P.C.  i  43-44 — "  It  is  regularly  true  that  the  law  presumes  the  king  will 
do  no  wrong ;  and  therefore  if  the  king  command  an  unlawful  act  to  be  done,  the 
offence  of  the  instrument  is  not  thereby  indemnified;  "  for  a  clear  statement  of  the 
modern  rule  see  Feather  v.  the  Queen  (1865)  6  B.  and  S.  at  pp.  295, 296 /^r  Cockburn, 
C.J. 

''Vol.  ii  411,  414.  8 Above  290. 


THE  KING  467 

king  and  subject.  It  is  only  very  occasionally  that  we  can  see 
any  hints  that  the  king  has  two  capacities  ^ — though  the  idea 
of  a  double  capacity  was  otherwise  not  unfamiliar  to  the  lawyers.^ 
If  it  is  a  case  of  resuming  improvident  grants  made  by  a  pre- 
decessor it  may  be  convenient  to  say  that  the  crown  is,  as  it  were, 
a  minor,  and  that  such  transactions  can  be  revoked.^  Similarly, 
if  the  crown  wishes  to  assert  rights  which  its  subjects  have 
usurped,  it  will  be  convenient  to  say  that,  as  against  the  crown, 
no  lapse  of  time  will  be  a  bar — whatever  this  or  that  king  may 
have  done  or  neglected,  such  acts  or  neglects  cannot  tell  against 
the  crown  ;^  and  in  1470  it  was  beginning  to  be  seen  that  in  the 
interests  of  good  government  certain  acts  even  of  a  usurper  must 
be  held  to  be  valid.  ^  But  the  king  is  slow  to  assert  this  theory 
or  to  allow  it  to  be  asserted  when  it  makes  against  his  interests. 
In  the  same  case  of  1470  it  was  argued  that  the  validity  of  one 
of  Henry  VI.'s  grants  must  be  determined  upon  the  same  prin- 
ciples as  those  which  were  applied  to  determine  the  position  of 
an  owner  who,  having  been  disseised  of  his  land,  had  got  back 
into  possession.^ 

In  the  sixteenth  century,  when  the  king  was  regarded  as 
possessing  both  a  politic  and  a  natural  capacity,  it  was  said  that 
the  king  could  not  be  seised  to  a  use  because  a  body  politic 
could  not  be  so  seised.'^  One  case  from  the  Year  Books  of 
Edward  IV.  was  cited  for  the  rule ;  ^  but  it  does  not  bear  out  the 
later  reason  given  for  it.  In  Edward  IV.'s  reign  the  legislature 
recognized  that  kings  had  in  fact  been  seised  to  uses  ;  ^  and  the 
reasoning  of  the  case  cited  seems  to  proceed  either  upon  the 
ground  that  the  king  ought  to  be  indifferent  as  between  all  his 
subjects,  which  he  could  not  be  if  he  was  seised  to  the  use  of 
one  of  them,^^  or  upon  the  ground  that,  it  being  necessary  that 
the  king  should  be  seised  by  matter  of  record,  he  could  not  be 
seised  by  deed  of  feoffment  and  livery  of  seisin ;  and  that,  there- 
fore, an  office  which  found  that  he  had  been  thus  enfeoffed  by 

^See  P.  and  M.  i  508,  509. 

2  In  Y.B.  20  Ed.  III.  (R.S.)  i  370  the  theory  is  put  forward  that  the  Archbishop 
of  Canterbury  has  two  capacities — one  as  archbishop  and  the  other  as  ordinary. 

spiac.  Abbrev.  339  (15  Ed.  II.)  cited  P.  and  M.  i.  509  n.  i. 

4  Vol.  i  87;  Y.B.  18  Ed.  III.  (R.S.)  156. 

^"Le  Roy  H.  fuit  Roy  en  possession,  et  il  covient  que  le  roialme  eit  un  Roy 
south  que  les  leyes  seront  tenus  et  mainteins,  doncque  pur  ce  que  il  ne  fuist  eins 
forsque  per  usurpation,  uncore  chescun  judicial  act  fait  per  luy  que  touche  jurisdic- 
tion royal  sera  bon,  et  Hera  le  Roy  de  droit,"  Y.B.  9  Ed.  IV.  Pasch.  pi.  2,  cited  Vino- 
gradoff,  L.Q.R.  xxix  279. 

SY.B.  9  Ed.  IV.  Pasch.  pi.  2;  cp.  9  Ed.  IV.  Trin.  pi.  3,  cited  L.Q.R.  xxix  279. 

■^  Willion  V.  Berkeley  (1562)  Plowden  at  p.  238. 

8Y.BB.  5  Ed.  IV.  Mich.  pi.  15;  S.C.  7  Ed.  IV.  Mich.  pi.  11— a  traverse  of 
office ;  for  the  nature  of  the  proceedings  see  Bk.  iv  Pt.  II.  c.  6  §  i. 

»  I  Edward  IV.  c.  i  §  14. 

10  Y.B.  7  Ed.  IV.  Mich.  pi.  11  per  Markham,  C.J.,  at  p.  17b. 


468  STATUS 

deed  to  the  use  of  another  was  wholly  void.^  Richard  III.,  it 
is  true,  divested  himself  by  statute  of  all  property  of  which  he 
had  been  seised  to  the  use  of  others  ;  ^  but  the  statute  contains  no 
hint  that  it  was  legally  impossible  that  he  should  hold  to  another's 
use.  The  reason  assigned  is  that  if  the  king  should  remain  so 
seised,  "hurte,  trouble  and  charges"  might  be  caused  to  the 
cestui  que  use — and  in  this  we  may  well  see  an  indirect  reference 
to  the  uncertainty  of  the  royal  title  to  the  throne,  and  there- 
fore a  testimony  to  the  want  of  any  distinction  between  the  person 
and  property  of  the  natural  man  and  the  king.  In  Henry  VI  I. 's 
reign  it  was  recognized  that  the  king  might  be  seised  of  land 
"in  right  of  the  crown  or  otherwise  ;  "  ^  but  in  the  same  reign  a 
a  statute  was  needed  to  make  it  clear  that  faithful  service  to  a 
reigning  king  was  no  treason  to  a  successful  claimant  to  the 
throne ;  *  and  Stephen  is  probably  warranted  in  saying  that  this 
statute  is  "  the  earliest  recognition  to  be  found  in  English  Law  of 
a  possible  difference  between  the  person  and  the  office  of  the 
king."^ 

The  view,  therefore,  that  the  king,  though  the  head  of  the 
state,  is  yet  a  natural  man  with  no  sort  of  double  capacity  helped 
to  preserve  the  influence  of  the  feudal  ideas  which  all  through 
this  period  coloured  men's  political  thoughts.  It  is  not  until  these 
feudal  ideas  have  ceased  to  influence  politics,  it  is  not  until  men 
have  begun  to  think  of  their  ruler  as  the  national  king  of  a 
modern  state,  that  he  acquires  other  capacities,  and  that  his 
prerogative  begins  to  assume  another  form.  It  is  not  till  then 
that  the  feudal  element  in  that  prerogative  will  only  be  traceable 
in  certain  small  incidental  rights — the  survivals  of  an  obsolete 
form  of  political  society.^ 

But,  though  these  feudal  ideas  were  reduced  to  a  very  sub- 
ordinate position  in  the  later  common  law,  we  shall  see  that 
certain  of  their  consequences  long  continued  to  influence  the  law 
relating  to  the  king  and  his  prerogative,  and,  perhaps,  influence  it 
even  at  the  present  day.  But  the  manner  in  which  the  new  politi- 
cal ideas  of  the  sixteenth  century  completely  changed  the 
nature  of  the  prerogative,  and   the  reason  why  some  of  these 

1  Y.B.  7  Ed.  IV.  Mich.  pi.  ii  per  Markham  at  pp.  i6b,  17b ;  Brian  thought  the 
feoffment  good  and  the  use  bad ;  but  his  reasoning  is  not  clear ;  throughout  the 
case  there  is  no  hint  of  any  double  capacity  in  the  king — the  chief  point  argued  being 
the  validity  of  the  office  found. 

2  I  Richard  III.  c.  5.  3  R.P.  7  Hy.  VII.  no.  5  (vi  444). 
*ii  Henry  VII.  c.  i. 

'^H.C.L.  ii  254  n.,  "This  statute  may  perhaps  be  regarded  as  the  earliest 
recognition  to  be  found  in  English  law  of  a  possible  difference  between  the  person 
and  the  office  of  the  king,  though  nothing  can  be  more  vague  and  indirect  than  the 
way  in  which  the  distinction  is  hinted  at." 

^  See  Figgis,  Divine  Right  (ist  ed.)  30. 


THE  INCORPORATE  PERSON  469 

mediaeval    ideas  were  revived  in  the    seventeenth   century,  are 
topics  which  belong  to  the  legal  history  of  those  centuries. 

§  2.  The  Incorporate  Person 

I  have  already  said  something  of  those  numerous  groups  of 
persons  whose  activities  fill  so  large  a  space  in  the  law  of  the 
thirteenth  and  fourteenth  centuries.^  They  comprised  bodies 
so  dissimilar  as  counties,  boroughs,  hundreds,  townships,  manors, 
merchant  gilds,  trading  gilds,  chantries,  deans  and  chapters, 
monasteries  of  various  kinds,  the  universities  and  the  societies  of 
lawyers  which  developed  into  the  Inns  of  Court.  Some  of  these 
groups  were  dissolved  into  their  component  parts  either  by  the 
logic  of  the  doctrines  of  the  common  law  and  by  the  procedure 
of  the  common  law  courts,  or  by  changes  in  agricultural  methods, 
or  by  changes  in  commercial  organization.  Some  remained  as 
groups.  In  the  department  of  local  government  such  entities  as 
counties,  hundreds,  and  townships  will  be  known  to  the  end. 
They  were  and  are  essential  parts  of  the  constitution,  and,  as  we 
have  seen,  our  constitutional  law  has  been  the  most  conservative 
of  all  branches  of  the  common  law.  But,  as  the  work  of  local 
government  tended  to  fall  more  and  more  into  the  hands  of  the 
justices  of  the  peace  and  their  subordinates,^  these  entities  tended 
to  look  less  like  communities  and  more  like  geographical  expres- 
sions. They  do  not,  however,  sink  to  the  level  of  merely 
geographical  expressions.  Though  the  older  powers  of  these 
self-governing  communities  were  placed  in  other  hands,  the  old 
traditions  of  self-government  were  carried  on  by  their  successors  ; 
and  a  continuous  traditional  sentiment  was  helped  by  rules  of 
law  which  recalled  the  older  order.^  In  our  own  days,  therefore, 
it  has  been  possible  to  use  them  as  the  basis  of  a  reformed  scheme 
of  local  government  in  which  the  new  and  the  old  are  combined. 
Elsewhere  we  do  not  see  many  instances  of  the  survival  of  these 
groups — the  greatest  examples  of  such  a  survival  are  the  Inns  of 
Court* 

When  we  have  exhausted  the  classes  of  groups  which  were 
dissolved  and  the  classes  of  groups  which  remained,  we  are  left 
with  the  third  class  which  is  the  subject  of  this  section — the 
class  which  became  corporations.  It  was  neither  possible  nor 
desirable  to  dissolve  all  these  groups  into  their  component  parts. 
To  use  the  words  of  Sir  F.  Pollock,^  "  in  a  complex  state  of 

1  Vol.  ii  401-405.  2  Vol.  i  285-288. 

3  E.g.  rules  as  to  the  venue  of  the  jury,  liability  of  the  hundred  for  damage,  the 
surviving  franchises. 

4  Vol.  ii  493-503  ;  cp.  Maitland,  Political  Theories  of  the  Middle  Age  xxxi. 

5  Contracts  {5th  ed.)  109. 


470  STATUS 

civilization,  such  as  that  of  the  Roman  Empire,  or  still  more  of 
the  modern  Western  nations,  it  constantly  happens  that  legal 
transactions  have  to  be  undertaken,  rights  acquired  and  exercised, 
and  duties  incurred  by  a  succession  of  sole  or  joint  holders  of  an 
office  of  a  public  nature,  involving  the  tenure  and  administration 
of  property  for  public  purposes,  or  by  or  on  behalf  of  a  number 
of  persons  who  are  for  the  time  being  interested  in  carrying  out 
a  common  enterprise  or  object."  This  being  the  case,  it  is 
necessary  from  the  point  of  view  both  of  private  and  of  public 
law  to  replace  the  old  vague  group  by  something  more  definite. 
The  law  knows  the  natural  person.  Its  rules  and  its  process  are 
fitted  to  deal  with  him.  They  are  not  fitted  to  deal  with  inde- 
terminate groups  which  exist,  and  yet  show  a  tendency  to 
crumble  when  an  attempt  is  made  to  apply  legal  rules  in  detail 
to  themselves  and  their  activities.  It  is  for  this  reason  that  the 
law  adopts  the  device  "  of  constituting  the  official  character  of 
the  holders  for  the  time  being  of  the  same  office,  or  the  common 
interest  of  the  persons  who  for  the  time  being  are  adventurers  in 
the  same  undertaking,  into  an  artificial  person  or  ideal  subject  of 
legal  capacities  and  duties."  ^  Thus  we  get  the  division  between 
"persons  natural  created  by  God,"  and  *•  persons  incorporate  or 
politick  created  by  the  policy  of  man  .  .  .  either  sole  or  aggre- 
gate of  many."  ^ 

This  conception  of  an  "  incorporate  person "  was  becoming 
naturalised  in  our  law  at  the  end  of  this  period.  It  is  neither  a 
primitive  nor  a  native  conception.  When  Bracton  wrote  it  had 
not  been  clearly  perceived  even  by  the  canonists  and  civilians  of 
his  day.^  The  first  person  to  call  a  group  of  persons  a  persona 
■ficta  was,  according  to  Gierke,  Sinibald  Fieschi,  who  in  1243 
became  Pope  Innocent  IV.*  As  to  the  fictitiousness  of  this  in- 
corporate person  there  has  been  in  these  days  much  learned  dis- 
pute ;  and  it  may  be  doubted  whether  Innocent  IV.  was  prepared 
to  draw  from  the  fictitiousness  of  the  personality  of  this  incor- 
porate group  all  the  consequences  drawn  by  later  lawyers.^ 
But,  fictitious  or  not,  it  was  to  be  regarded  henceforth  as  a  person 
and  coordinated  with  natural  men.  This  conception  was  received 
by  the  common  lawyers  because  it  supplied  a  useful  explanation 
of  certain  associations  which  frequently  appeared  in  the  law 
courts  as  the  owners  of  property  or  franchises,  a  useful  theory  for 
the  regulation  of  their  activities,  and  a  useful  mode  of  checking 
the  too  frequent  multiplication  of  these  bodies. 

^  Pollock,  Contracts  (5th  ed.)  no. 

2  Co.  Litt.  2a.  ^  P.  and  M.  i  477. 

4  Political  Theories  of  the  Middle  Age  xix. 

^  See  H.  A.  Smith,  Law  of  Associations  152-157. 


THE  INCORPORATE  PERSON  471 

It  was  from  the  associations  in  which  the  property  of  the 
church  was  vested,  and  through  which  its  various  activities  were 
exercised,  that  we  get  the  earliest  development  in  the  direction  of 
the  establishment  of  this  new  law  of  incorporate  persons.  Nor  is 
this  fact  surprising.  The  church  had  from  the  earliest  times  been 
a  large  property  owner.  This  property  belonged  at  the  end  of 
this  period  to  archbishops,  bishops,  deans  and  chapters,  monas- 
teries, or  rectors.  Such  persons  were  at  the  end  of  this  period 
corporations  sole  or  aggregate,  and  owned  this  property  in  their 
corporate  capacity.  But  before  this  useful  device  was  known  to 
the  law  we  see  the  very  greatest  uncertainty  as  to  who  the  owner 
of  the  property  really  was.  If  a  man  gave  property  to  a  church 
or  a  monastery  he  gave  it  to  the  patron  saint.^  "Gradually  (if 
we  may  so  speak)  the  saint  retires  behind  his  churches  ;  the 
church  rather  than  the  saint  is  thought  of  as  the  holder  of  lands 
and  chattels.^  But  the  old  idea  was  not  lost  sight  of.  Bracton 
tells  us  that  a  gift  to  a  church  is  made  in  the  first  place  to  God 
and  the  saint,  and  only  in  the  second  place  to  the  ecclesiastic  in 
charge  ofit.^  But  this  property  was  managed  by  a  human  being 
or  by  groups  of  human  beings.  These  groups  were,  it  is  true,  said 
to  be  perpetual — not  because  they  were  fictitious  persons  which  by 
their  nature  were  exempt  from  death  and  other  ills  of  mortal  life, 
but  because  they  were  like  a  flock  of  sheep,  which  is  always  the 
same  flock  by  the  constant  renewal  of  its  parts  * — an  idea  which 
Blackstone  borrowed  to  explain  the  immortality  of  the  modern 
corporate  body.^ 

What,  then,  was  the  relationship  of  these  persons  or  groups 
to  this  property?  They  were  clearly  not  owners.  But  they 
exercised  many  of  the  powers  of  owners  in  relation  to  the  pro- 
perty of  the  church.  The  common  law  showed  a  tendency  to 
treat  the  church  as  a  minor,  as  a  being,  that  is,  who  could  com- 
plain if  its  guardian  by  wrongful  acts  exposed  it  to  loss.^     "  The 

1  P.  and  M.  i  481,  482.  2  n,id  482. 

3ff.  12,  375;  above  35  n.  i. 

^  Bracton  f.  374b,  '*  In  collegiis  et  capitulis  semper  idem  corpus  manet,  quam- 
vis  successive  omnes  moriantur,  et  alii  loco  ipsorum  substituantur,  sicut  dici  poterit 
de  gregibus  ovium,  ubi  semper  idem  grex,  quamvis  omnes  oves  sive  capita  successive 
decedant;"  cp.  this  with  Y.B.  17  Ed.  III.  (R.S.)  14,  "The  Chapter  is  always 
one  and  cannot  die  ;  "  and  see  below  484  for  later  statements  as  to  the  immortality 
of  the  fictitious  person.  In  Germany,  we  are  told,  by  Schulte,  Droit  D'Allemagne 
(Tr.  Fournier)  186,  "A  la  suite  de  cette  conception  de  I'empire  franc  qu'une 
personne  juridique  n'existait  pas  et  ne  pouvait  avoir  de  propri^t^,  chaque  Eglise  dut 
avoir  une  personne  physique  comme  son  Seigneur.  Pour  les  petites  Eglises,  ces 
seigneurs  furent,  en  general,  les  propri^taires  fonciers ;  pour  les  abbayes,  ce  furent 
les  particuliers ;  pour  un  grand  nombre  des  deux,  ce  fut  le  roi." 

5  '•  All  the  individual  members  that  have  existed  from  the  foundation  to  the 
present  time,  or  that  shall  ever  hereafter  exist,  are  but  one  person  in  law,  a  person 
that  never  dies ;  in  like  manner  that  the  river  Thames  is  still  the  same  river,  though 
the  parts  which  compose  it  are  changing  every  instant,"  Bl.  Comm.  i  456. 

6  Bracton  ff.  12,  226b ;  Y.B.  20,  21  Ed.  I.  (R.S.)  32  ;  below  517. 


472  STATUS 

church,"  said  Westcote,  arguendo,  in  1 3 1 3-1 3 14,  ''is  within  age  ; "  ^ 
from  which  he  deduced  the  conclusion  that  the  neglect  of  a  prior 
to  claim  his  franchises  at  a  general  Eyre  ought  not  to  prejudice 
him.  If  an  abbot  attempted  to  alienate  the  abbey  lands,  his 
successor  could  recover  them ;  and  a  special  action  was  invented 
to  enable  him  to  do  so.^  The  church  or  the  abbey  or  the 
chapter  is  regarded  as  continuing,  though  its  human  administrators 
come  and  go  ;  ^  and  in  1 3 1 3  it  seems  to  have  been  thought  that 
when  a  prior  had  waged  his  law  his  successor  could  perform  it* 
At  the  same  time  the  law  does  not  as  yet  very  distinctly  realize 
this  continuing  entity.  It  is  a  somewhat  passive  owner,  very 
much  in  the  hands  of  its  mortal  administrators.^  It  suffers  from 
a  negligent  administrator.  It  grows  rich  under  one  who  is 
prudent.  But  it  itself  does  nothing.  We  talk  of  its  ^'mort 
main'^  when  we  wish  to  describe  its  characteristic  as  a  land- 
owner :  we  might  well  think  that  not  only  its  hand,  but  also  its 
whole  body  was  dead  for  all  the  active  life  that  we  can  see.  It 
is  true  that  by  a  proper  use  of  the  seal  the  monastery  or  the 
chapter  might  be  bound.^  But  in  early  days  this  is  far  more 
probable  because  the  use  of  the  seal  was  conclusive  evidence  of 
the  transaction  than  for  any  other  reason  ;  ^  and  we  shall  see  that 
the  later  rule  as  to  the  necessity  of  signifying  corporate  consent 
by  the  seal  was  probably  an  outcome  of  this  earlier  rule  of 
evidence.^  However  that  may  be,  it  is  clear  that  a  sealed  docu- 
ment would  bind  the  community — even  though  the  community 
at  the  time  of  the  transaction  had  no  head.^     But  this  decision 

1  The  Eyre  of  Kent  (S.S.)  iii  184. 

2Bracton  f.  12;  above  24;  cp.  Y.B.  3,  4  Ed.  II.  (S.S.)  91,  "Albeit  his  pre- 
decessor had  charged  the  tenement  with  suit,  the  successor  would  be  received  to 
discharge  it."  per  Stanton,  J. 

3Bracton  f.  374b,  375;  Y.B.  32,  33  Ed.  I.  (R.S.)  8,  *'Herle.—'^t  admit  that 
we  have  avowed  for  the  arrears  of  nine  years,  and  we  have  been  Prior  for  sixteen 
years.  Howard,  jf. — If  there  were  arrears  for  the  time  of  the  predecessor,  do  you 
not  think  that  the  church  should  have  them  ?  (intimating  the  affirmative)." 

4  Y.B.  6,  7  Ed.  II.  (S.S.)  176;  at  p.  175  Inge,  J.,  says,  "Abbot  and  Prior  are 
names  of  dignity  ;  and  in  virtue  of  that  dignity  the  right  that  was  in  the  predecessor 
will  so  wholly  vest  itself  in  the  person  of  the  successor  after  his  creation  that  none 
other  than  he  can  defend  the  rights  of  his  church." 

^  It  is  even  said  sometimes  that  the  goods  of  the  house  belong  to  the  abbot,' 
Y.B.  48  Ed.  III.  Mich.  pi.  10 ;  cp.  Y.B.  4  Ed.  II.  109 ;  in  Y.B.  20,  21  Ed.  I.  (R.S.) 
34  Mutford  argued  that  a  writ  against  a  dean  and  chapter  would  abate  if  the  whole 
chapter  were  changed;  and  in  13 13  an  action  against  the  abbot  of  Westminster  did 
abate  on  death  of  the  Abbot,  Y.B.  6,  7  Ed.  II.  (S.S.)  36;  on  the  other  hand,  there 
was  a  contrary  decision  in  i3i2,Y.B.  6  Ed.  II.  (S.S.)i  85. 

6  See  e.g.  Y.BB.  20  Ed.  III.  (R.S.)  i  96,  98  ;  22  Hy.  VI.  Mich.  pi.  6  ;  below  489. 

"^  Above  417.  ^  Below  489. 

9  Y.BB.  8  Ed.  II.  (S.S.)  132  per  Bereford,  C.J. ;  7  Ed.  III.  Trin.  pi.  35— the 
court  decided  for  the  plaintiff  both  on  the  ground  of  the  deed  and  on  the  ground  that 
the  money  lent  and  promised  to  be  repaid  by  the  deed  had  come  to  the  profit  of  the 
house,  "  La  court  tient  le  fait  a  nient  dedit,  et  que  les  deniers  deviendront  al  profit 
de  la  meason  ; "  cp.  Y.B.  20  Hy.  VI.  Trin.  pi.  35. 


THE  INCORPORATE  PERSON  478 

was  based  partly  upon  the  ground  that  the  community  had  bene- 
fited ;  and  the  contracts  of  an  abbot,  even  if  made  by  him  in 
his  personal  capacity,  might  make  the  community  liable  if  it  had 
benefited  thereby/  Unless,  however,  a  contract  or  conveyance 
had  been  made  under  the  seal  of  the  community  regularly  affixed, 
or  unless  the  community  had  actually  had  the  use  of  property  or 
other  benefits,  it  could  not  be  liable." 

The  most  important  of  these  ecclesiastical  bodies  were  under 
one  head  with  large  powers.  The  abbot,  for  instance,  ruled  over 
a  community  of  monks  who  were  dead  persons  in  law;  and 
though  there  were  cases  in  which  the  management  of  affairs  was 
in  the  hands  of  the  community,  the  division  of  ecclesiastical 
property  between  abbots,  priors,  bishops,  chapters,  and  prebends 
tended  to  bring  the  common  law  courts  into  contact  with  indi- 
viduals rather  than  groups.^  Thus  in  the  case  of  the  abbey, 
though  the  property  when  recovered  might  belong  to  the  house, 
the  rights  to  sue  were  rights  to  be  exercised  by  the  abbot  and 
not  by  the  house ;  ^  and  those  rights,  if  in  respect  of  a  wrongful 
act,  died  with  him  before  the  Statute  of  Marlborough.^  An 
irregular  conveyance  could,  as  we  have  seen,  be  set  aside ;  but 
the  right  to  set  it  aside  was  the  right  of  the  new  abbot. ^  Simi- 
larly, liability  upon  a  tort  committed  by  a  deceased  abbot  died 
with  him  ;  ^  and  the  same  rule  would  apply  to  liability  upon  a 
contract,  unless  made  under  the  abbey  seal,  or  unless  the  house 
had  benefited.^  The  abbot  was  liable  for  the  torts  of  his 
monk  ^ — as  a  husband  for  the  torts  of  his  wife ;  ^^  and  this  analogy 
tended  to  strengthen  the  idea  that  the  property  in  the  goods  of 
the  house  could  be  laid  in  the  abbot.  We  may  note  that  this 
rule  as  to  the  delictual  liability  of  the  abbot  helped  to  solve  what 
in  later  law  is  a  difficult  problem.  Even  at  the  present  day  we 
might  find  it  difficult  to  justify  in  theory  the  practice  of  holding 
a  corporation  to  be  liable  in  tort,  if  we  were  not  helped  by  the 

ly.B.  39  Hy.  VI.  Mich.  pi.  31 — the  question  whether,  if  an  abbot  bought 
things  for  the  use  of  the  house  and  died  before  they  had  come  to  the  use  of  the  house, 
his  successor  should  be  charged,  was  treated  as  open. 

2  Y.B.  39  Hy.  VI.  Mich.  pi.  31 ;  this  was  a  case  of  a  contract  to  pay  an  annuity 
in  return  for  counsel  given ;  the  court  said,  "  L'action  n'est  maintenable  envers  le 
successor  de  nul  contract  ou  escript  fait  per  le  predecessor,  sinon  que  I'effect  vient  al 
profit  del  Meason,  pur  ceo  que  cestuy  grant  ne  fuit  forsque  solement  le  fait  I'Abbe 
predecessor,  et  nemy  le  fait  de  le  Convent." 

3  P.  and  M.  i  484-489. 

4  Y.B.  9  Hy.  VI.  Trin.  pi.  21 ;  above  472  n.  5. 
"52  Henry  III.  c.  28;  cp.  Y.B.  4  Ed.  II.  109. 

8  Above  472  n.  2  ;  P.  and  M.  i  485. 

7  Y.B.  49  Ed.  III.  Mich.  pi.  5. 

8  Eyre  of  Kent  (S.S.)  ii  33,  47;  Y.BB.  20  Ed.  III.  (R.S.)  ii  552-554 ;  20  Hy.  VI. 
Hil.  pi.  19. 

» Y.BB.  48  Ed.  III.  Mich.  pi.  10 ;  49  Ed.  III.  Mich.  pi.  5. 
^0  Below  531. 


474  STATUS 

modern  doctrines  of  employers'  liability.^  The  common  law  of 
the  Middle  Ages  had  not,  as  we  have  seen,  this  resource.^ 

These  rules  show  us  very  clearly  the  difficulties  which  arose 
from  the  want  of  a  distinct  conception  of  the  nature  of  the  person- 
ality of  these  ecclesiastical  groups.  In  fact,  these  continuing  though 
somewhat  passive  entities  badly  needed  to  be  embodied  in  some 
tangible  form  if  they  were  to  live  and  flourish  in  this  transitory 
world  of  human  beings  and  elaborate  laws  for  human  conduct. 
The  theory  that  they  were  personce  fictce  gave  them  just  that 
reality  which  they  needed.  Lawyers  could  speculate  about  their 
nature,  and  rules  could  be  laid  down  for  their  conduct.  They 
were  no  longer  concealed  by  the  activities  of  those  who  were,  for 
the  time  being,  their  human  representatives.  They  were  persons 
created  by  the  law,  distinct  from  their  human  members.  They 
were  immortal  and  invisible.  They  could  commit  neither  sin 
nor  crime ;  and  some  said  no  tort  ^ — truly  suitable  representatives 
for  saints  and  churches. 

When  once  this  generalization  had  become  the  accepted 
theory  of  the  canon  law,  it  was  inevitable  that  it  should 
affect  the  common  law.  These  personce  fictce  were  with  ever 
increasing  frequency  litigants  in  the  common  law  courts ;  * 
and,  when  the  common  lawyers  became  familiar  with  them, 
and  with  the  canonists'  theories  concerning  them,  they  naturally 
proceeded  to  apply  these  theories  to  other  groups  which  had 
nothing  to  do  with  the  church.  The  boroughs,  the  univer- 
sities with  their  colleges,  and  the  gilds,  were  groups  to  which 
this  conception  could  easily  and  profitably  be  applied.  Owing 
to  their  manifold  activities,  the  boroughs  were  the  group 
which,  from  the  point  of  view  of  the  development  of  legal 
doctrine,  are  the  most  important.  Moreover,  they  were  bodies 
composed  of  many  members ;  and,  that  being  so,  the  body 
itself  stood  out  with  greater  distinctness  from  its  individual 
members. 

We  have  seen  that  even  in  the  thirteenth  century  the 
borough  was  a  community  more  highly  organized  than  the 
other  communities  through  which  the  local  government  of 
the  country  was  conducted.^  Even  in  Edward  II.'s  reign  it 
is  referred  to  as  "  un  corps ;"  ^  and  in  Edward  III.'s  reign 
it  was  definitely  taking  its  place  as  an  independent  body  {un 

1  Political  Theories  of  the  Middle  Age  xxxix,  xl ;  Salmond,  Jurisprudence 
291-293. 

2  Above  384.  3  Political  Theories  of  the  Middle  Age  xix. 
4  P.  and  M.  i  489,  490.  ^Vol.  ii  392-395. 

^  Y.B.  4  Ed.  II.  103,  Herle,  arg.,  ♦'  Non  est  simile  que  c'est  un  custume  regard 
a  chescun  persone  separatim,  mes  c'est  custume  a  un  comminalte  come  a  un 
corps;"  below  482-483. 


THE  INCORPORATE  PERSON  475 

gros)  side  by  side  with  monasteries  and  chapters.^  As 
Pike  puts  it,  "  The  lawyers  had  often  been  troubled  by  the 
question  whether  something  in  dispute  was  appendant  or  ap- 
purtenant to  something  else,  or  was  a  thing  by  itself  and 
independent,  which  they  called  a  gross.  ...  By  a  curious 
psychological  process  they  realized  that  what  we  now  call  a 
corporation  was  a  '  gros,'  or  something  which  had  an  existence 
per  se  :  and  this  something  they  called  alternatively  '  un  corps.' 
Thus  they  came  to  the  idea  of  an  individuality  composed  of 
the  members  of  a  corporation,  or  as  we  might  now  say,  to 
the  idea  of  a  persona  ficta^^ 

During  the  fourteenth  and  fifteenth  centuries  some  of  the 
leading  consequences  of  this  conception  were  elucidated.  This 
we  shall  see  if  we  look  at  some  of  the  rules  which  were  being 
developed  as  to  the  creation  of  these  incorporate  persons,  as 
to  their  varieties,  as  to  the  nature  of  their  corporate  personality, 
as  to  their  powers  capacities  and  liabilities,  and  as  to  their 
dissolution. 

Creation. 

One  of  the  greatest  differences  between  these  new  corporate 
bodies  and  the  older  indeterminate  groups  is  to  be  found  in 
the  mode  of  their  creation.  The  older  groups  formed  them- 
selves naturally.  The  corporation  was  an  artificial  creation; 
and  except  in  the  palatinates,  where  thQ  Jura  regalia  had  been 
granted  to  a  subject,^  they  must  be  created  by  the  state,  or, 
in  the  case  of  ecclesiastical  corporations,  by  the  Pope."*  The 
Pope's  powers  disappeared  of  course  at  the  Reformation,  and 
the  palatine  jurisdictions  gradually  decayed,  so  that  we  get 
the  modern  rule  that  a  corporation  can  only  be  created  either 
mediately  or  immediately  by  the  crown,^  or  by  Act  of  Parlia- 
ment.^ 

This  rule  is  in  accordance  with  the  theories  of  the  canonists 
who   held   that   it  was  only  the  sovereign  who  could  make  a 

^  p.  and  M.  i  489 ;  22  Ass.  pi.  67,  a  commonalty  cannot  be  imprisoned  or 
outlawed;  note,  however,  that  the  conclusion  here  drawn,  that  trespass  does 
not  lie  against  it,  was  not  followed,  below  488  ;  49  Ass.  pi.  8,  the  commonalty  of 
London  is  "  perpetuel,"  **d'antiquity,"  and  •*  un  gros." 

2  Y.B.  16  Ed.  III.  (R.S.)  i  xlvi. 

3  Vol.  i  109 ;  cp.  Grant,  Corporations  {ed.  1850)  11. 
^  Below  477. 

5  Grant,  op.  cit.  11,  12;  for  some  instances  where  one  corporation  has  created 
another — a  right  which  must  have  been  conferred  by  the  crown,  see  ibid  12 
n.  m  ;  49  Ass.  pi.  8 ;  Henry  VIII. 's  charter  gave  this  power  to  Oxford  University, 
see  H.  A.  Smith,  Law  of  Associations  157. 

^  That  a  statute  could  create  a  corporation  was  well  recognized  in  the  Middle 
Ages,  below  476 ;  for  a  statutory  power  given  to  persons  to  found  and  incor- 
porate hospitals  and  houses  of  correction  see  39  Elizabeth  c.  5. 


476  STATUS 

persona  ficta}      But   it  would  seem  that  English  law  arrived 
at  this  result  by  a  road  of  its  own. 

We  have  seen  that  such  corporate  communities  as  cities 
or  boroughs  in  all  cases  comprised  a  franchise  or  franchises.^ 
The  rule  that  all  franchises  depended  upon  the  king's  grant 
was  clearly  laid  down  by  Bracton,^  and  was  enforced  by 
Edward  I.*  In  Edward  11. 's  reign  the  judges  deduced  from 
this  rule  the  consequence  that  it  was  only  bodies  like  cities 
or  boroughs  possessed  of  a  royal  charter  giving  them  capacity 
to  take  franchises,  which  could  claim  them.  Without  such 
a  charter  a  community  was  not  capable  of  taking  the  grant 
of  a  franchise,  and  could  not  therefore  claim  it  by  prescription.^ 
Clearly  we  are  getting  near  to  the  idea  that  a  royal  charter 
can  create  a  new  body  with  a  capacity  different  to  that  of  a 
mere  community.  Such  a  community  is,  as  Herle  said,  ''  un 
corps."  *^  It  is  not  surprising  therefore  to  hear  it  said  in  the 
first  half  of  the  fourteenth  century  that  there  can  be  no  "  com- 
monalty "  capable  of  taking  a  grant  of  property  without  royal 
charter ;  '^  and  that,  as  such  a  charter  will  generally  be  a  royal 
charter,  all  escheats  in  these  communities  must  go  to  the 
king.^  Thus  the  right  itself  to  be  such  a  community  could 
obviously  be  regarded  as  a  franchise ;  ^  and  this  reinforced 
the  view  that  these  grants  of  incorporation  were  dependent  on 
royal  grant.  Both  these  lines  of  argument  probably  helped 
the  court  to  arrive  at  the  decision  of  Edward  III.'s  reign  already 
cited.  ^^  It  never  seems  to  have  been  doubted  that  what  could 
be  done  by  royal  charter  could  be  done  by  Act  of  Parliament 
with  even  greater  effect.  Both  in  Edward  III.  and  Edward 
IV. 's  reigns  it  was  assumed  that  an  Act  of  Parliament  could 
not  only  create  a  corporation  but  also  cure  defects  in  a  royal 
charter  of  incorporation.^^  And  defects  there  might  well  be ; 
for  it  had  been  solemnly  declared  in  1359  that  a  charter  which 

1  Political  Theories  of  the  Middle  Age  xxx. 

2Vol.  ii39.  3  Ibid  87.  "» Ibid  88. 

^  *'  You  must  remember  that  you,  who  are  a  community,  are  in  a  very  different 
position,  in  the  matter  of  claiming  a  franchise  by  prescription,  from  that  in  Which 
Sir  W.  Ormesby,  or  any  other  individual  person  who  might  claim  through  his 
ancestors,  would  be ;  quia  communa  non  est  capax  Ubertatis,  and  a  city  cannot 
be  a  city  unless  it  was  originally  constituted  one  by  grant  of  the  king,"  the 
Eyre  of  Kent  (S.S.)  i  131  per  Staunton,  J.;  for  an  explanation  of  this  passage 
see  vol.  i  go  n.  5. 

^  Above  474  n.  6.  '  49  Ass.  pi.  8  per  Knyvet. 

8  "All  escheats  within  cities  accrue  as  of  right  to  our  lord  the  king,  no  matter 
of  what  lord  the  lands  be  held,"  the  Eyre  of  Kent  (S.S.)  i  93. 

*  *♦  A  classical  definition  lias  taught  that  *  a  Corporation  is  a  Franchise,'  and 
a  franchise  is  a  portion  of  the  State's  power  in  the  hands  of  a  subject,"  Maitland, 
Political  Theories  of  the  Middle  Age  xxxi,  citing  Kent,  Comm.  Lect.  33. 

^"  49  Ass.  pi.  8  ;  above  n.  7. 

"49  Ass.  pi.  8 ;  Y,B.  2i  Ed,  IV.  Mich.  pi.  28  p.  59. 


THE  INCORPORATE  PERSON         477 

infringed  the  rules  of  the  common  law  was  void  ;  ^  and  in  the 
litigation  between  Lowestoft  and  Yarmouth  in  1 378-1 380  it 
was  assumed  that  a  royal  charter  which  contained  provisions 
contrary  to  an  Act  of  Parliament  was  void.^  In  Henry  VIII. 's 
reign  Fineux,  C.J.,  said  that  corporations  might  be  by  grant 
of  the  king  or  pope,  or  both,  or  by  Act  of  Parliament,  or  at 
common  law.^  Thus  the  theories  both  of  the  canon  law  and 
of  the  common  law  led  to  the  same  result.  No  doubt  the 
theories  of  the  canon  law  helped  the  common  lawyers  to  arrive 
at  the  conception  of  the  incorporate  person.  But  both  in  respect 
to  the  manner  of  its  creation,  and,  as  we  shall  see,  in  respect  to 
many  another  of  its  incidents,  native  rules  and  reasoning  produced 
the  actual  English  law  relating  to  it. 

This  new  rule  of  law  cut  across  the  older  rules  which  allowed 
many  powers  to  unincorporate  groups.^  Many  of  these  groups 
existed,  and  were  habitually  acting  as  if  they  were  corporations ; 
and  some  concession  was  made  to  the  actual  facts  of  English  life 
by  the  recognition  of  the  rule  that  a  corporation  might  be  by 
prescription. ^  Though  an  unincorporate  community  could  not  pre- 
scribe to  take  a  franchise  or  any  other  property,  such  a  com- 
munity might  acquire  the  status  of  a  corporation,  and  therefore 
capacity  to  take,  by  prescription.  Another  concession  was  made 
in  the  rule  that  a  corporation  for  a  limited  purpose  might  arise  by 
implication — as  where  the  king  grants  land  to  the  men  of  a  certain 
vill  rendering  rent,  they  will  be  a  corporation  for  this  purpose.® 
Another  concession  was  made  in  the  rule  that  such  persons  as 
churchwardens  might  be  a  quasi-corporation  for  certain  purposes. '^ 

1  Vinogradoff,  Oxford  Studies  vi  ix,  x. 

2  Select  Cases  before  the  Council  (S.S.)  61,  62,  68-6g — the  contention  of 
Lowestoft;  Yarmouth  did  not  deny  the  principle  but  asserted  that  their  charter 
had  Parliamentary  sanction,  ibid  at  p.  66 ;  for  an  assertion  of  this  principle  on 
the  Calendar  of  Patent  Rolls,  April  28,  1381,  p.  633,  see  ibid  xci. 

3  Y.B.  14  Hy.  VIII.  Mich.  pi.  2 ;  see  the  passage  cited  L.Q.R.  xvii  133. 
^Vol.  ii  377. 

5Y.BB.  34  Hy.  VI.  Mich.  pi.  6;  i  Ed.  IV.  Mich.  pi.  15. 

^  "  Nota  que  fuit  tenu  en  le  Comon  Bank  que  si  le  Roy  done  terre  en  fee  ferme 
probis  hominibus  villae  de  Dale,  que  le  corporation  est  bon,"  Y.B.  7  Ed.  IV.  Trin. 
pi.  7 ;  '*  Si  le  Roy  grant  hominibus  de  Islington  que  ils  seront  discharges  de  toll, 
c'est  bon  corporation  a  cest  intent,  mes  nemy  a  purchaser,"  Y.B.  21  Ed.  IV.  Mich, 
pi.  28  (p.  59)  per  Brian,  C.J. ;  but  such  a  grant  of  corporate  character  would  not  be 
implied  when  it  would  run  counter  to  rules  of  law,  e.g.  if  the  king  gave  to  another 
the  right  to  give  to  an  uncertain  person  the  power  to  take  property,  the  gift  could 
not  be  supported  by  supposing  that  he  had  created  a  corporation,  Y.B,  2  Hy.  VII. 
Hil.  pi.  16. 

' "  En  ma  opinion  un  done  fait  des  biens  al  use  de  paroissiens  est  assez  bon  pur 
le  saufgard  de  tiels  choses  que  sont  dons,  dont  covient  esse  ascuns  persons  a  prendre, 
et  a  ceo  extender  le  Corporation  per  le  Common  Ley,  car  par  common  reason  ils 
sont  charges  ove  divers  choses  appurtenant  al  Eglise  de  trover  ornaments  et  similia, 
lequel  common  reason  eux  admet  able  a  purchaser  les  choses  avandits,  et  a  ceo  ex- 
tender lour  Corporation,  et  a  nul  auter  entente,"  Y.B.  12  Hy.  VII.  Trin.  pi.  7 
(p.  29)  per  Fineux,  C.J. 


478  STATUS 

These  concessions  show  that  this  new  law  of  corporations  did  not 
wholly  fit  the  facts  of  English  life  ;  and  in  some  cases  the  legis- 
lature has  found  it  necessary  to  intervene — e.g.  it  has  given  to 
churchwardens  powers  of  which  these  new  theories  had  deprived 
them.^  But  we  shall  see  in  succeeding  volumes  that  the  best 
corrective  will  be  found  in  the  Chancellor's  development  of  the 
conception  of  the  use  or  trust.  ^  An  attempt  was  made  to  apply 
this  idea  to  an  unincorporate  group  in  Edward  II  I. 's  reign.  ^  But 
we  shall  see  that  by  that  time  the  law  had  made  up  its  mind  not 
to  recognize  the  interest  of  the  persons  to  whose  use  land  was 
held.  A  fortiori  it  refused  to  recognize  that  an  unincorporate 
group,  which  had  no  power  to  purchase,  could  have  such  a  bene- 
ficial interest  in  land.^  There  are  some  signs  that  it  might  have 
recognized  in  exceptional  cases  the  interest  of  a  group  to  whose 
use  chattels  were  held.^  The  recognition  of  such  a  use  was  not 
wholly  contrary  to  the  principles  of  the  common  law/  But  it  was 
contrary  to  those  principles  to  allow  that  an  indeterminate  group 
could  own  property ;  ^  and  so  the  law  favoured  the  somewhat  in- 
adequate idea  of  a  quasi-corporation  in  certain  exceptional  cases.  ^ 
But  though  this  new  theory  of  corporations  tended  to  limit 
narrowly  the  activities  of  these  unincorporate  groups,  this  limita- 
tion had,  from  the  point  of  view  of  public  law,  many  compensating 
advantages.  In  fact  it  was  a  result  which  was  necessary  in  the 
interests  of  good  government.  Both  at  Rome  and  in  England  a 
mature  system  of  law  and  a  centralized  system  of  government 
have  found  it  necessary  to  limit  the  free  power  of  association  which 
is  characteristic  of  a  more  primitive  period  in  the  history  of  law. 
Under  both  systems  of  law  a  few  of  the  older  associations  lived 
on  as  survivals  of  the  older  order ;  but  in  both  the  state  found  it 
necessary  to  maintain  some  control  over  the  formation  of  new 
associations.®     In  the  Middle  Ages  an  unlimited  power  to  form 

1  Grant,  Corporations  (ed.  1850)  607-608,  citing  9  George  I.  c.  7  §  4,  41  George 
III.  c.  23  §  9,  59  George  III.  c.  12  §  17. 

2  Bk.  iv.  Pt.  I.  c.  2. 

^In  49  Ass.  pi.  8,  it  was  argued  that  though  an  unincorporate  gild  could  not  pur- 
chase property,  "  uncore  la  done  fait  a  eux  que  preigne  al  oeps  de  ceux  de  la  Com- 
minalte  de  la  gild  est  assez  bon,"  just  as  a  gift  to  the  monk  to  the  use  of  the  house 
gives  an  estate  to  the  house  ;  but  this  was  denied;  the  gift  to  the  monk  to  the  use 
of  the  house  might  be  good  because  the  house  could  purchase,  but  the  gild,  being 
unincorporate,  could  not. 

^  Y.B.  13  Hy.  VII.  Mich.  pi.  5,  "  Fuit  tenu  per  touts  les  Justices  que  eel  use  ne 
peut  estre  bon  in  les  paroissiens,  car  ils  n'ont  pas  capacite  de  purchaser  per  meme 
le  nom,  nient  pluis  ils  n'ont  pouvoir  daver  ascun  feoffment  fait  a  lour  oeps." 

^  Y.B.  37  Hy.  VI.  Trin.  pi.  11,  a  devise  of  a  book  to  the  use  of  the  parish  was 
held  good  by  Moile,  J.,  infavorem  Ecclesice,  and  because  the  parishioners  are  bound 
to  find  a  mass  book,  chalice,  and  vestments. 

^ Above  171  n.  2.  'Above  170. 

8  Above  477  nn.  6  and  7. 

^  Girard,  Droit  Romain  230,  "  On  peut  done  dire  que  le  droit  romain  suit,  en  ce 
matiere,  le  systeme  de  la  concession,  selon  lequel   la  personality  morale  n'existe 


THE  INCORPORATE  PERSON  479 

groups  would  have  meant  the  partition  of  the  powers  of  the  state 
among  the  larger  landowners  and  the  towns.  It  would  have  pre- 
vented the  growth  of  any  common  law.  It  would  have  meant  a 
wholesale  reception  of  Roman  law  at  a  later  period  to  fill  the  gap 
caused  by  the  absence  of  any  common  law.  The  history  of 
mediaeval  Germany  should  be  somewhat  of  an  example  to 
us ;  and  in  modern  times  both  England  and  the  United  States 
have  had  experience  of  the  danger  of  allowing  the  formation  of 
anomalous  groups  which  are  not  corporations.  The  trade  union 
could  contend  that,  because  it  was  not  incorporated,  it  was  not 
legally  liable  for  its  misdeeds ;  and  the  misdeeds  of  corporations 
and  trusts  tax  to  the  utmost  the  resources  of  the  federal  govern- 
ment. In  the  interests  of  public  order,  we  should  not  allow  large 
numbers  of  men  an  unlimited  and  an  unregulated  power  of  group- 
ing themselves  for  a  common  object.  No  doubt  it  is  right  that 
the  state  should  give  men  freedom  to  incorporate  themselves  for 
lawful  purposes.  Such  groups  have  the  sanction  of  the  state  and 
fall  under  its  code  of  corporation  law.  We  can  allow  this  larger 
freedom  in  modern  times  because  the  coercive  power  of  the  state 
is  stronger.  Maitland,  speaking  of  self-help,  has  said  that  "  in 
our  own  day  our  law  allows  an  amount  of  quiet  self-help  that 
would  have  shocked  Bracton,"  because  "  it  has  mastered  the  sort 
of  self-help  that  is  lawless."  ^  So  we  can  allow  a  larger  liberty  of 
incorporation  because  the  law,  by  strongly  adhering  to  the  view 
that  incorporation  is  a  privilege  granted  by  the  state,  is  in  a  posi- 
tion to  dictate  terms  to  the  groups  which  it  thus  allows. 

Classification. 

The  recognition  of  this  incorporate  person  as  a  subject  of  rights 
and  duties  raised  many  legal  problems.  Not  the  least  was  the 
problem  of  classifying,  in  a  manner  appropriate  to  this  new 
idea,  the  incorporate  persons  recognized  by  the  law.  A  century 
before  Coke  the  law  was  coming  to  the  conclusion  that  they  could 
be  divided  into  two  main  groups — corporations  aggregate  and 
corporations  sole.^  This  was  the  leading  division  adopted  by  Coke,^ 
and  it  became  the  leading  division  of  the  law  of  the  eighteenth 
century.  "  Corporations  aggregate,"  says  Blackstone,*  "  consist  of 
many  persons  united  together  into  one  society,  and  are  kept  up  by 
a  perpetual  succession  of  members,  so  as  to  continue  for  ever  :  of 

qu'en  vertu  d'une  concession  du  legislateur ;  "  the  liberty  of  founding  such  associa- 
tions was  originally  large,  but,  •'  plus  tard  une  loi  Julia  de  C^sar  ou  d'Auguste, 
dirigee  contre  les  associations  politiques  ne  laissa  subsister  qu'une  partie  des  anci- 
ennes  associations  .  .  .  et  subordonna  la  creation  des  associations  nouvelles  a  une 
autorisation  pr^lable." 

1  P.  and  M.  ii  572.  2  gee  below  480  n.  3. 

3  Above  470.  4  Comm.  i  457. 


480  STATUS 

which  kind  are  the  mayor  and  commonalty  of  a  city,  the  head  and 
fellows  of  a  college,  the  dean  and  chapter  of  a  cathedral  church. 
Corporations  sole  consist  of  one  person  only  and  his  successors,  in 
some  particular  station,  who  are  incorporated  by  law,  in  order  to 
give  them  some  legal  capacities  and  advantages,  particularly  that 
of  perpetuity,  which  in  their  natural  persons  they  could  not  have 
had.  In  this  sense  the  king  is  a  sole  corporation  :  so  is  a  bishop  : 
so  are  some  deans  and  prebendaries,  distinct  from  their  several 
chapters  :  so  is  every  parson  and  vicar." 

Corporations  aggregate  were  destined  to  be  by  far  the  most 
important  class  of  corporations.  In  the  Middle  Ages  the  boroughs 
were  its  most  important  members ;  and  it  was  through  the  borough 
community  that  the  notion  of  a  corporation  aggregate  came  to  be 
distinctly  realized  by  the  common  law.  But  the  corporation  sole 
or  corporations  analogous  thereto  were  the  oldest  variety  known 
to  the  law ;  and  the  conception  of  a  corporation  sole  came  into  the 
common  law  by  way  of  the  church.  The  process  by  which  this 
conception  was  developed  by  the  common  law  was  probably  some- 
what as  follows  : — 

The  fact  that  the  common  lawyers  were  gaining  a  firm  hold 
upon  the  conception  of  a  corporation  reacted,  as  Maitland  has 
pointed  out,  upon  those  ecclesiastical  corporations  which  had 
originally  introduced  these  common  lawyers  to  the  idea  of  2, persona 
ficta.  The  corporation  is  a  person.  The  law  knows  only  persons 
as  the  subjects  of  rights  and  the  objects  of  gifts.  We  must  drop 
our  talk  of  gifts  to  saints  and  churches.  It  must  be  to  a  person 
that  a  conveyance  of  land  is  made ;  and,  as  the  common  law  will 
not  recognize  the  interest  of  one  to  whose  use  a  conveyance  is 
made,  the  conveyance  must  be  made  directly  to  a  person,  real  or 
fictitious.^  Thus,  if  a  conveyance  is  to  be  made  to  a  rector  it 
cannot  be  made,  as  of  old,  to  the  church,  or  the  saint,  or  to  God  ; 
it  must  be  made  to  the  man  J.S.  who  is  rector  and  his  successors.^ 
But  we  do  not  mean  to  benefit  J.  S.  personally  ;  we  mean  to  benefit 
the  parson  of  the  church  of  St.  X.,  just  as,  if  we  convey  land  to  the 
abbot  and  monks  of  such  an  abbey,  we  mean  to  benefit  not  the 
individuals  but  the  house.  If  we  are  debarred  from  saying  that 
we  give  the  land  to  J.  S.  to  the  use  of  the  church,  it  will  appear  to 
be  a  somewhat  obvious  alternative  to  say  that  J.S.,  the  rector,  is  a 
corporation  sole.^     The  conveyance  is  then  made  to  a  person,  and 

1  L.Q.R.  xvi  346,  citing  Y.BB.  21  Ed.  IV.  Mich.  pi.  32,  and  9  Hy.  VII.  Mich. 
pi.  6. 

2  Ibid  336,  citing  Brook,  Ab.  Corporations  et  Capacities  pi.  41. 

3  Maitland  (L.Q.R.  xvi  336,  337)  suggests  that  Richard  Brook,  of  the  Abridgment, 
who  died  in  1558,  if  he  was  not  the  true  and  first  inventor  of  the  term  "  corporation 
sole,"  was  probably  one  of  the  first  to  apply  it  to  the  parson.  That  some  connotation 
of  corporateness  attached  to  the  parson  even  in  Edward  IV.'s  reign  would  appear  in 
Pigot's  statement  in  Y.B.  21  Ed.  IV.  f.  13  ;  he  is  explaining  that  a  corporation  cannot, 


THE  INCORPORATE  PERSON  481 

the  church  is  benefited.  The  alternative  was  the  more  obvious 
because  the  law  recognized  many  differences  between  a  corporation, 
like  a  borough  or  a  chapter,  composed  of  capable  persons,  and  a 
corporation,  like  a  monastery,  composed  of  one  sovereign  head  and 
a  body  of  monks  who  were  dead  in  law.^  The  abbot  and  his 
monastery  were  halfway  between  the  corporation  aggregate  and  the 
corporation  sole ;  but  nearer  to  the  latter  than  to  the  former.^ 
The  rules  of  law  applying  to  this  particular  corporation  thus  paved 
the  way  to  the  recognition  by  the  common  law  of  such  a  conception 
as  that  of  the  corporation  sole. 

We  shall  see  that  this  conception  was  used  to  elucidate  the 
position  of  the  king.^  But  we  shall  see  that  just  as  older  rules 
of  law,  and  the  course  of  our  political  and  constitutional  history, 
prevented  this  device  from  effecting  all  that  it  might  have  effected 
in  the  sphere  of  constitutional  law ;  so,  in  the  case  of  the  parson, 
older  rules  as  to  the  parson's  interest  in  the  glebe  prevented  this 
application  of  the  doctrine  of  corporations  from  being  any  real  use.* 
**  We  are  told  that  a  sole  corporation,  as  a  bishop  or  parson,  cannot 
make  a  lease  to  himself,  because  he  cannot  be  both  lessor  and 
lessee.  We  are  told  that  if  a  bishop  hath  lands  in  both  capacities 
he  cannot  give  or  take  to  or  from  himself  Those  who  use  such 
phrases  as  these  show  plainly  enough  that  in  their  opinion  there  is 
no  second  *  person '  involved  in  the  cases  of  which  they  speak  : 
'he'  is  'himself,'  and  there  is  an  end  of  the  matter."^     In  the 

as  a  corporation,  commit  treason  or  felony,  nor  can  these  offences  be  committed 
against  a  corporation  "  ne  vers  un  parson  del  Eglise  en  quant  Parscon  ou  Vicar,  car 
toutz  ceux  come  tielx  corps  ne  puissent  tiel  tort  faire  " —  so  that  Brook  had  at  least 
one  authority  for  his  statement ;  but  Brook  was  evidently  inclined  to  extend  this 
idea — thus  he  says,  Ab.  Corporations  et  Capacities  pi.  25  that  possibly  the  Chancellor 
of  a  University  may  be  regarded  as  a  corporation. 

^  Above  473  ;  Y.B.  5  Hy.  VII.  Pasch.  pi.  7  the  reporter  tells  us  that  Brian  '•  mit 
diversite  entre  corps  espirituel  politique,  et  corps  temporal  politique  de  lour  capacite. 
Come  Abbe  et  Convent  sont  corps  espirituel  politique  et  le  Abbe  convient  a  suer  et 
etre  sue  solement  .  .  .  mes  en  I'autre  cas  del  corps  politique  et  temporal  come  Dean 
et  Chapiter  et  Major  et  Comunalte,  ils  convient  suer  et  estre  sue  per  lour  noms  .  .  . 
car  de  tiels  corporations  chescun  du  corps  est  personable  in  Ley  et  nemy  en  I'auter 
cas ; "  and  for  another  case  in  which  he  drew  the  same  distinction  see  Y.B.  i  Ed.  V. 
Trin.  pi.  10  (p.  5). 

"Y.B.  20  Ed.  III.  (R.S.)  i  98  Stonore,  C.J.,  said,  in  answer  to  an  attempt  to 
distinguish  the  deed  of  the  abbot  from  that  of  the  house,  •'  I  see  plainly  that  you  are 
leaching  the  Grey  Friars  how  to  plead,  but  you  may  rest  assured  that  the  Abbots  of 
that  order  used  to  bear  the  same  seal  of  their  House  and  to  bind  the  House  ;  "  so  too 
in  Y.B.  21  Ed.  IV.  Hil.  pi.  9  (p.  76)  Vavisor  equates  a  dean,  who  has  sole  possession 
separate  from  the  chapter,  with  an  abbot ;  cp.  also  Y.B.  12  Ed.  IV.  Pasch.  pi.  24 
(p.  lo)  per  Choke,  J. 

3  Bk.  iv  Pt.  I.  c.  I ;  Pt.  II.  c.  6  §  I. 

^L.Q.R.  xvi  346-353 ;  as  Maitland  says,  to  carry  the  theory  through,  and  by  its 
means  to  give  an  intelligible  account  of  the  parson's  relation  to  his  glebe,  "  would 
have  necessitated  a  breach  with  traditional  ideas  ;  "  so  that  the  idea  tliat  the  parson 
is  a  corporation  sole  gives  us  no  real  help  ;  the  corporation  sole  is  a  natural  man, 
**  and  when  that  man  dies  the  freehold  is  in  abeyance." 

^Ibid  xvi  353,  354;  it  seems  too  that  no  property  except  realty  can  go  to  the 
successor  of  the  corporation  sole,  but  that  other  property  will  go  to  his  executors  ; 
VOL.   HI. — 31 


482  STATUS 

case  both  of  the  king  and  the  parson  the  common  law  was  hampered 
by  the  perdurance  of  old  rules  which  resolutely  declined  to  admit 
that  one  man  has  two  capacities.  As  Sir  John  Salmond  says,  the 
conception  of  a  corporation  sole  is  a  perfectly  logical  conception.^ 
It  is  known  to  other  systems  besides  our  own,  and  has  been  used 
by  the  legislature  at  different  periods  in  English  legal  history.  ^ 
But  the  doctrine  of  corporations  was  new  doctrine  in  the  sixteenth 
century ;  and  corporations  sole  collided  with  some  very  ancient 
prejudices  or  limitations  which  the  very  precocity  of  its  develop- 
ment had  stereotyped  in  the  common  law. 

We  shall  now  see  that  these  same  causes  caused  other  difficul- 
ties in  the  application  of  this  new  conception  of  corporate  person- 
ality ;  and  that,  though  the  lawyers  were  beginning  to  have  some 
ideas  as  to  its  nature,  they  found  it  by  no  means  an  easy  task  to 
apply  these  ideas  to  the  concrete  facts  of  the  cases  which  came 
before  them. 

The  nature  of  corporate  personality. 

The  recognition  of  the  existence  of  an  incorporate  person 
necessarily  involves  the  recognition  of  the  three  following  prin- 
ciples :  (i)  A  corporation  is  a  person  distinct  from  its  members  ; 
(ii)  the  property  of  the  corporation  is  distinct  from  the  property 
of  its  members  ;  (iii)  the  property  of  its  members  cannot  be  taken 
in  execution  for  the  debt  of  the  corporation,  and  vice  versa.  We 
shall  now  see  that  these  principles  gradually  gained  recognition 
during  the  fifteenth  century ;  that,  in  consequence,  the  lawyers 
began  to  acquire  some  ideas  as  to  the  nature  of  corporate  person- 
ality ;  and  that  difficult  questions  were  arising  as  to  the  effect 
which  matters  affecting  the  natural  men  composing  the  corpora- 
tion could  be  allowed  to  have  upon  the  corporation. 

(i)  In  Edward  III.'s  reign  the  fact  that  a  corporation  is  a 
person  distinct  from  its  members  had  hardly  yet  been  grasped. 
To  a  bond  given  by  the  mayor  and  commonalty  of  Newcastle  to 
John  de  Denton  the  report  tells  us  that  it  was  pleaded  that  John 
de  Denton  was  then  mayor  and  that  a  man  cannot  be  bound  to 
himself;  ^   and  we  see  a  similar  confusion  in  a  plea  of  the  }  ear 

for  this  rule  the  astounding  reason  is  given  that  the  title  to  chattels  cannot  be  in 
abeyance — as  if  the  same  principle  did  not  apply  also  to  realty,  Grant,  Corporations 
629,  630. 

^  Jurisprudence  (2nd  ed.)  285. 

"^  Grant,  Corporations  661,  points  out  that  the  clerk  of  the  peace  was  made  a 
quasi-corporation  sole  by  27  Elizabeth  c.  13 ;  and  ibid  626,  that  the  Master  of 
Pembroke  College,  Oxford,  was  made  a  corporation  sole  by  letters  patent  of  Charles  I. 
confirmed  by  12  Anne  btat.  2  c.  6  §  7 ;  modern  examples  are  the  Postmaster- 
General,  3,  4  Victoria  c.  96  §  67;  the  Secretary  of  State  lor  War,  18,  19  Victoria 
c.  117  §  2 ;  the  Solicitor  to  the  Treasury,  39,  40  Victoria  c.  18  §  i. 

sy.B.  17,  18  Ed.  III.  (R.S.)  70;  this  seems  to  be  the  case  referred  to  in  Y.B. 
21  Ed.  IV.  Mich.  pi.  4  (p.  15)  by  Vavisour;  neither  the  Y.B.  report  nor  the  roll  quite 
bears  out  Vavisour's  statement  as  to  the  plea. 


THE  INCORPORATE  PERSON  483 

1424,  in  which  it  was  said  that  a  member  of  a  commonalty  could 
not  appear  as  attorney  for  that  commonalty,  since  he  could  not  be 
attorney  for  himself.^  So,  too,  in  1429,  to  an  action  of  trespass 
brought  against  the  corporation  of  Ipswich  and  one  J.  Jabe,  it  was 
pleaded  that  J.  Jabe  was  a  member  of  the  corporation  and  was 
therefore  twice  named. ^  But  the  argument  in  the  last  cited  case 
shows  us  that  the  fallacy  was  then  perceived  by,  at  any  rate,  some 
of  the  lawyers.^  Indeed,  this  distinction  between  the  corporation 
and  its  members  was  an  essential  part  of  the  canon  law  theory, 
and  had  been  applied  by  the  common  lawyers  to  ecclesiastical 
corporations  as  early  as  Edward  III.'s  reign.*  In  the  latter  part 
of  the  fourteenth  and  the  beginning  of  the  fifteenth  centuries,  the 
practice  grew  up  of  dropping  the  word  "heirs"  in  a  grant  to  a 
corporate  body,  and  of  substituting  therefor  the  word  "succes- 
sors;"^ and  in  Henry  VI.'s  reign  it  was  held  that  a  fee  simple 
could  be  conveyed  to  it  without  that  word.^  In  1480  this  capacity 
to  take  by  succession  was  put  forward  as  the  distinctive  mark  of  a 
corporation.  If  a  gift  were  made  to  an  individual  (even  though 
he  was  an  individual  holding  an  office)  and  his  successors,  the  suc- 
cessors could  not  take,  but  it  would  go  on  his  death  to  his  exe- 
cutors.'^  This  reasoning  is  an  additional  proof  that  the  corporation 
was  coming  to  be  regarded  as  a  distinct  body,  separate  and  of 
another  nature  from  the  men  who  composed  it. 

(ii)  It  is  clear,  even  in  Edward  III.'s  reign,  that  a  corporate 

1  Y.B.  3  Hy.  VI.  Pasch.  pi.  16. 

2  Y.B,  8  Hy.  VI.  Mich.  pi.  2  and  pi.  34  ;  this  case  is  cited  P.  and  M.  i  476. 
^Ibid  at  p.  15,  '•  Le  trespass  est  fait  par  les  Bailies  at  le  Commonalty  et  J.  que 

sont  ii,  mesque  J.  soit  un  de  eux,  car  un  de  le  Commonalty  n'est  le  Commonalty, 
mes  aggregatum  ex  omnibus  est  le  Commonalty,"  per  Rolf;  and  ibid  at  p.  i,  Paston, 
J.,  points  out  the  practical  injustice  of  taking  the  opposite  view,  "  Si  J.  fist  le  tort  a 
nous  de  son  teste  demesne,  et  nemy  come  un  de  Commonalty  ensemble  ove  le  Com- 
monalty et  jeo  suis  mis  a  tiel  brief  come  vous  parlez,  et  jeo  avois  jugement  de  re- 
coverer  damages,  jamais  n'aurai  execution  si  non  des  biens  le  Commonalty,  et  nemy 
des  biens  singulaires; "  Y.B.  5  Hy.  VII.  Pasch.  pi.  7  Brian  puts  the  case  of  the  man 
who  could  sue  his  own  executor,  "  Si  un  home  est  oblige  a  un  Abbe,  et  puis  il  entre 
in  Religion  en  meme  le  Meason  a  qui  il  est  debtor,  et  puis  il  est  fait  Abbe,"  the  debt 
is  not  extinguished  on  the  ground  that  the  same  person  is  debtor  and  creditor,  but  "  il 
aura  action  de  Debte  envers  ses  executors  demesne." 

*  17  Ass.  pi.  29,  *'  Le  Prior  pleda  en  barre  per  release  del  Dean  et  Chapter  de  B 
dont  le  pleintiff  se  pleint  come  Treasurer,  a  quel  temps  le  pleintiff  mesme  fuit  un  del 
Chapter  et  non  allocatur  per  Shard ;  pur  ceo  que  le  pleintiff  demande  de  son  several 
droit  severe  de  Chapter; "  S.C.,  Y.B.  18,  19  Ed.  III.  (R.S.)  74;  and  the  distinction 
emerges  still  more  clearly  in  a  case  of  39  Ed.  III. :  "Alien  nee  est  fait  prior  dun 
meason  et  port  action,  il  n'est  pie  que  est  alien  nee  .  .  .  car  il  port  Taction  come 
prior  in  jure  domus  et  non  in  jure  proprio,"  Bro.  Ab.  Denizen  pi.  15. 

5  Y.B.  16  Ed.  III.  (R.S.)  i  xliv,  Ixxxiv-lxxxv. 

«  Y.B.  39  Hy.  VI.  Mich.  pi.  17  (p.  13)  ^«r  Littleton  ;  cp.  Y.B.  20  Hy.  VI.  Mich, 
pi.  16  (pp.  6,  7). 

■^ "  Si  un  home  soit  oblige  a  le  Dean  de  Pauls  et  a  ses  successors,  et  le  Dean 
devy,  le  successor  n'aura  my  I'action,  mes  ses  executors,  car  il  n'ad  my  succession 
per  tiel  nosme,  mes  si  home  soit  oblige  a  Dean  et  Chapiter  de  Pauls  et  a  lour  suc- 
cessors, la  le  successor  avera  Taction,  et  nemy  Texecutor,"  Y.B.  20  Ed.  IV.  Pasch. 
pi.  7  per  Littleton. 


484  STATUS 

body  can  own  property  which  is  not  the  property  of  its  individual 
members.^  In  one  of  the  last  of  the  books  of  Assizes  it  is  this 
capacity  of  the  corporation  to  own  property  which  is  put  before  us 
as  the  characteristic  which  distinguishes  a  corporate  from  an  unin- 
corporate  body ;  ^  and  the  fact  that  this  property  is  distinct  from 
the  property  of  the  individuals  who  compose  the  corporation  was 
clearly  stated  several  times  during  the  fifteenth  century.^ 

(iii)  As  to  whether  the  private  property  of  the  members  of  the 
corporation  could  be  taken  in  execution  on  a  judgment  against  the 
corporation  was  discussed  in  1429.*  It  was  argued  that  such  pro- 
perty might  be  taken  because  the  king  took  the  property  of  indi- 
viduals if  a  community,  such  as  a  county  or  hundred,  were  amerced. 
The  reply  was  that  one  cannot  argue  from  the  king's  case  to  that 
of  a  common  person.  In  fact,  it  was  just  this  rule  which  brought 
out  the  difference  between  the  modern  corporation  and  the  old  un- 
incorporate  group ;  and  it  was  held  in  1440^  and  in  1442^  that 
on  a  judgment  against  a  corporation  only  the  corporation  goods 
could  be  taken. 

When  the  law  had  arrived  at  these  results  it  had  got  some 
way  towards  a  recognition  of  the  incorporate  person.  We  find, 
therefore,  in  the  Year  Books  of  Henry  VI.'s  and  Edward  IV. 's 
reigns — more  especially  in  the  Abbot  of  Hulme's  case^ — much 
speculation  as  to  its  nature.  It  was  said  to  be  invisible,  of  no 
substance,  a  mere  name,  and  yet  a  person.^  That  it  was  immortal 
had  been  clearly  seen  in  Richard  II.'s  reign  when  the  mortmain 
laws  had  been  extended  to  these  lay  corporations.^  It  followed 
from  its  nature  that  it  could  not  be  outlawed  -^  or  excommuni- 
cated ;  ^^  that  it  could  not  be  assaulted  or  imprisoned  ;  ^^  that  it 

1 17  Ass.  pi.  29. 

249  Ass.  pi.  8,  •*  II  ne  puit  estre  per  Ley  que  ce  Comminalty  de  la  Gild,  que 
n'est  afifirm  par  chartre  le  Roy,  purroit  estre  adjudge  un  corps  de  purchaser  estat  da 
frank  tenure,"  per  Knyvet. 

3Y.BB.  8  Hy.  VI.  Mich.  pi.  2,  "  Singulaires  ne  sont  les  biens  del  Commonalty," 
per  Strange  ;  19  Hy.  VI.  Pasch.  pi.  i  (p.  64)  per  Markham  ;  21  Ed.  IV.  Pasch.  pi.  22 
per  Choke. 

4Y.B.  8  Hy.  VI.  Mich.pl.  2. 

5  Y.B.  ig  Hy.  VI.  Pasch.  pi.  i  (p.  64)  per  Markham. 

^  Y.B.  20  Hy.  VI.  Mich.  pi.  ig  per  Fortescue. 

''This  case  appears  four  times  in  Y.B.  21  Ed.  IV.  Pasch.  pi.  21,  Mich.  pi.  4, 
Pasch.  pi.  22,  Mich.  pi.  53,  at  pp.  7,  12,  27,  67;  the  abbot  sued  the  mayor  and  com- 
monalty of  Norwich  on  a  bond ;  the  plea  was  that  the  abbot  had  got  the  bond  exe- 
cuted by  imprisoning  the  mayor;  and  the  question  to  be  decided  was  whether  this 
was  a  good  plea. 

8 Y.B.  21  Ed.  IV.  f.  13,  "Le  corporacion  de  eux  n'est  q'un  nosme  que  ne  poit 
my  estre  view,  et  n'est  my  substance,"  per  Pigot;  Y.B.  32  Hy.  VI.  Mich,  pi.  13 
(f.  9).  cited  P.  and  M.  i  474  n.  5,  '•  lis  sont  per  cest  nosme  un  person  corporate." 

9  Vol.  ii  475. 

10  22  Ass.  pi.  67 ;  Y.BB.  45  Ed.  III.  Hil.  pi.  5 ;  21  Ed.  IV.  pp.  13,  14. 
1^  Y.B.  21  Ed.  IV.  p.  14  per  Choke. 

12  Ibid  pp.  13,  14. 


THE  INCORPORATE  PERSON  485 

could  not  commit  treason  or  felony  ;  ^  and  that,  according  to  some 
of  the  canonists,  it  could  not  commit  a  sin  or  a  delict.^ 

But,  when  these  theoretical  attributes  of  the  incorporate 
person  came  to  be  applied  to  its  activities  in  the  world  of  fact, 
some  difficult  questions  arose.  In  the  first  place,  certain  cases 
raised  the  question  how  far,  if  at  all,  matters  affecting  individual 
members  of  the  corporate  body  affected  the  validity  of 
corporate  acts.  In  the  second  place,  other  cases  showed  that  the 
older  ideas,  which  had  diminished  the  usefulness  of  the  conception 
of  a  corporation  sole,^  operated  in  certain  cases  to  prevent  an 
entirely  logical  development  of  the  conception  of  the  corporate 
personality  of  a  corporation  aggregate. 

(i)  In  two  cases  of  Edward  IV.'s  reign  the  question  arose 
whether  duress  to  the  members  of  a  corporate  body  would  avoid 
a  corporate  act.  In  1476  to  an  action  of  debt  against  an  abbot 
and  convent  upon  a  bond  sealed  with  their  corporate  seal,  it  was 
pleaded  that  the  abbot's  predecessor  compelled  his  monks  to 
execute  the  deed  by  duress.*  This  was  held  to  be  no  plea.  Brian, 
C.J.,  held  that  the  corporation  was  not  menaced  because  all  the 
individual  monks  were  menaced  ;  ^  and  Littleton,  J.,  held  that  if  the 
abbot  and  the  majority  of  the  convent  agreed,  the  mere  fact  that 
they  had  menaced  the  minority  was  no  cause  to  avoid  the  deed.*^ 
Brian's  view  was  perhaps  the  strictly  logical  view  ;  but  Littleton's 
view  was  the  more  practical  view,  as,  on  the  strictly  logical  view, 
it  is  obvious  that  a  corporation  could  never  set  aside  a  deed  to 
which  it  had  put  its  seal  under  the  influence  of  duress  applied  to 
all  its  members.  This  was  recognized  by  Brian  in  1481  in  the 
Abbot  of  Hulme's  case.  "  As  to  what  is  said  by  my  Lord 
Choke  that  if  an  action  is  brought  against  a  corporate  body  by 
the  name  of  the  Commonalty  only,  it  is  no  plea  to  say  that  one 
of  the  Commonalty  was  in  prison,  that  is  good  law ;  but  if  the 
greater  part  of  them  be  imprisoned,  then  it  is  a  good  plea.  And 
if  the  greater  part  agree  to  the  making  of  a  deed,  it  is  good ;  for 
if  they  are  not  able  to  do  anything  until  they  are  all  of  one  mind, 
peradventure  they  may  never  come  to  an  agreement ;  and  for  that 
reason  ubi  major  pars  ibi  tota.     And  when  it  is  said  that  such  a 

ly.B.  21  Ed.  IV.  p.  \iper  Pigot ;  ibid  p.  x^pcr  Catesby. 

2  Political  Theories  of  the  Middle  Age  xix;  cp.  Y.B.  15  Ed.  IV.  Mich.  pi.  2  fcr 
Brian ;  below  488. 

3  Above  481-482. 

^15  Ed.  IV.  Mich.  pi.  2,  summarized  by  Pollock,  L.Q.R.  xxvii  233. 

'  "  Nient  obstant  que  touts  les  moignes  de  le  dit  meason  fueront  manasses  un- 
core  il  n'ad  allege  que  covent  fuit  manasse,  et  aussi  un  covent  ne  poit  my  estre 
manasse  ne  en  prison,  car  c' est  jus  corporale  "  {({u.  incorporale]. 

^  "  Si  I'Abbe  et  le  greindre  part  de  les  commoignes  ove  lour  bon  volunte  font 
un  obligation  et  le  meinder  part  de  les  commoignes  soit  enprisones,  son  successor 
ne  voidera  eel  fait  per  reason  del  enprisonment  de  meinder  part  de  les  commoignes." 


486  STATUS 

body  cannot  be  severed,  that  is  not  so ;  for  if  the  mayor  dies  they 
are  severed,  and  when  a  new  mayor  is  made  the  corporation  is  as 
it  was  before  ;  and  for  such  things  as  are  done  by  the  body  politic 
there  must  be  consent,  that  is  of  natural  men  and  private  persons  ; 
for  this  body  incorporated  under  the  name  of  mayor  sheriff  and 
commons  cannot  as  a  corporate  body  consent,  but  the  consent 
must  be  the  consent  of  the  particular  persons  to  the  deed  or 
another  act ;  for  if  this  body  wishes  to  do  anything  it  must  be  in 
writing  ;  and  then  how  shall  this  writing  be  made  ?  Clearly  by 
the  consent  of  each  particular  person.  And  as  to  the  argument 
that  he  (the  mayor)  was  in  prison  as  a  private  person,  that  is  not 
so,  for,  for  such  imprisonment,  the  body  corporate  will  have  a  writ 
false  imprisonment."  ^  The  same  principle  was  also  recognized 
when  it  was  held  in  the  same  year  by  all  the  judges  except 
Fairfax,  that  the  fact  that  a  juror  in  an  action  brought  by  a  dean 
and  chapter  was  brother  to  one  of  the  canons  was  a  good  cause 
of  challenge.^ 

(ii)  Though  a  corporation  aggregate  was  recognized  as  a  con- 
tinuing person  which  had  a  perpetual  existence,  the  lawyers  could 
not  wholly  separate  it  from  accidents  in  the  life  of  the  natural 
man  who  was  at  its  head,  any  more  than  they  could  separate  the 
corporation  sole  from  the  natural  man  of  whom  it  consisted.^ 
Thus  Brian,  C.J.,  held  that  if  a  mayor  was  outlawed,  or  if  there 
was  a  vacancy  of  the  office,  at  the  time  of  doing  an  act,  that  fact 
would  be  a  good  answer  to  an  action  by  his  successor  based  on 
that  act  ;^  it  was  held  by  Broke,  J.,*  and  Brudnel,  CJ.,*'  that  a 
dean  and  chapter  could  not  present  the  dean  to  a  living,  for  no 
man  could  present  himself ;  and  Littleton  laid  it  down  that  dur- 
ing the  vacancy  of  the  headship  of  a  monastery  the  monastery  was 
capable  of  no  corporate  act.'^  This  is  intelligible  as  applied  to 
a  monastery,  for  the  monks  were  dead  persons  in  the  law  ;  but  it 
was  applied  to  corporations  of  capable  persons,  such  as  deans  and 
chapters  or  colleges.^  It  followed  from  this  rule  that  a  devise  or  a 
grant  to  a  corporation  during  the  vacancy  of  the  headship  was 
void,^  so  that  the  mayor  or  the  head  of  a  college  could  not  him- 
self devise  to  the  corporation.^*^  No  doubt  these  rules  can  bfe 
explained  by  saying  that  an  incomplete  corporation  is  incapable 
of  corporate  action  ;  and  as  so  explained  they  are  consistent  with 
the  view  that  the  personality  of  the  corporation  is  wholly  distinct 

lY.B.  21  Ed.  IV.  Mich.  pi.  53  (p.  70). 

2Y.B.  21  Ed.  IV.  Mich.  pi.  33  (p.  63) ;  cp.  Pollock,  L.Q.R.  xxvii  234-235. 
3  Above  481.482.  4Y.B.  12  Ed.  IV.  Pasch.  pi.  24. 

«Y.B.  13  Hy.  VIII.  Pasch.  pi.  2  (p.  13). 
fiy.B.  14  Hy.  VIII.  Pasch.  pi.  2  (pp.  30-31). 

'  §  443.  «  Co.  Litt.  263b.  » Ibid  246a. 

1°  Corpus  Christi  College  Case  (1587)  4  Leo.  223;  S.C.  Dalison  31;  Gran-, 
Corporations  (ed.  1850)  123 ;  Maitland,  Coll.  Papers,  iii  221  n.  3. 


THE  INCORPORATE  PERSON  487 

from  that  of  its  members.  But  they  far  more  probably  originated 
in  a  confusion  between  the  corporation  and  the  natural  man  at  its 
head.  This  is  illustrated  by  other  cognate  rules  which  are  clearly 
based  on  this  confusion.  Thus  Frisot,  C.J.,  held  that  if  an  abbot, 
prior,  dean,  or  master  was  suing  on  some  cause  of  action  arising 
in  the  time  of  his  predecessor,  he  must  show  how  he  came  to  be 
made  the  head  of  the  corporation,  just  as  a  natural  person,  claim- 
ing e.g.  as  executor  or  heir,  would  be  obliged  to  show  his  title  to 
sue  in  such  a  capacity ;  ^  and  some  thought  that  if  a  corporation 
consisting  of  mayor  and  aldermen  were  suing,  it  must  be  shown 
who  was  mayor  when  the  charter  of  incorporation  was  granted.'* 
Similarly,  Coke  cites  a  case  of  1597^  in  which  it  was  laid  down 
that,  if  a  dean  and  chapter  made  a  lease  which  was  void  as  being 
contrary  to  the  provisions  of  an  Act  of  1571,^  the  lease  was  not 
"  utterly  void  presently  according  to  the  express  letter  of  the 
Act,"  but  was  only  voidable  after  the  death  of  the  dean  who  was 
party  to  the  lease.* 

It  would  seem  therefore  that,  though  the  lawyers  had  arrived 
at  one  or  two  general  ideas  as  to  the  nature  of  corporate  per- 
sonality, they  had  found  considerable  difficulty  in  applying  these 
general  ideas  to  the  concrete  facts  of  individual  cases.  This  diffi- 
culty had  arisen  partly  from  the  facts  of  these  cases,  and  partly 
from  the  survival  of  older  ideas  which  were  natural  to  a  period  in 
which  the  conception  of  corporate  personality  was  new.  Both 
these  causes  affected  the  subsequent  development  of  the  law. 
They  tended  to  a  development  of  the  law  which  will  prevent  it 
from  attaining  any  very  clear  or  logical  conception  of  corporate 
personality,  because  it  will  lead  to  the  creation  of  a  number  of 
particular  rules  regulating  the  various  activities  of  different  kinds 
of  corporate  bodies.  But  this  we  shall  see  more  clearly  in  the 
following  section. 

Powers^  capacities  and  liabilities. 

So  soon  as  the  law  had  arrived  at  the  conception  of  an  in- 
corporate person  the  question  of  the  powers,  capacities  and  liabili- 
ties of  such  a  person  arose.  We  have  seen  that  certain  powers, 
capacities  and  liabilities  affecting  the  natural  man  were  obviously 
ruled  out  by  the  nature  of  the  corporate  personality.     On  the 

lY.B.  34  Hy.  VI.  Mich.  pi.  6.  2  y.B.  13  Ed.  IV.  Pasch.  pi.  4. 

3  3  Co.  Rep.  at  f.  60a.  ^  13  Elizabeth  c.  10. 

'*'  As  the  Act  was  made  for  the  benefit  of  the  successors,  that  the  lease  should 
not  be  void  till  after  the  death  of  the  dean,  who  was  party  to  the  lease  :  and  although 
the  successor  of  the  dean  is  not  successor  to  the  whole  corporation  who  made  the 
lease,  but  only  the  principal  member  of  it ;  yet  because  the  whole  corporation  never 
dies,  such  lease,  by  construction,  shall  be  void  after  the  death  of  the  dean,  who  is 
the  principal  member  of  the  corporation,  and  his  successor,  with  the  chapter,  shall 
avoid  it";  cp.  the  rules  as  to  forfeiture  Hale,  P.C.  i  252;  Royal  Hist.  Soc.  3rd 
Ser,  xi  117-118, 


488  STATUS 

other  hand,  other  powers,  capacities  and  liabilities — a  power  to 
own  property,  to  contract,  to  sue  and  be  sued,  liability  on  contract, 
or  for  wrongs  done  as  the  owner  of  property — were  as  obviously 
included.  The  main  difficulty  then  and  now  was  and  is  to  endow 
this  corporate  person  with  a  capacity  for  doing  acts  and  incurring 
liabilities  which  will  not  hamper  its  freedom  of  action,  and  will 
adjust  satisfactorily  its  relations  to  its  neighbours. 

Even  at  this  early  period  of  our  legal  history  it  is  clear  that 
a  consideration  of  the  abstract  character  of  this  incorporate  person 
was  beginning  to  create  theoretical  difficulties  as  to  its  capacities 
and  liabilities.  In  1476^  Brian,  C.J.,  laid  it  down  that  "a  man 
shall  not  have  a  writ  of  trespass  against  an  abbot  and  convent 
because  the  convent  cannot  commit  trespass  ;  no  more  shall  a 
man  have  a  writ  of  trespass  against  a  mayor  or  commonalty — 
which  was  admitted  by  the  whole  court."  If  Brian  (as  is  most 
probable)  was  referring  to  trespasses  to  the  person,  this  statement 
is  not  only  true  but  obvious.  But  the  broad  way  in  which  the 
law  was  laid  down  indicates  a  line  of  thought  which  will  long 
tend  to  restrict  the  delictual  capacity  of  corporations,  and  has 
had  some  effect  upon  determining  the  powers  and  capacities  of 
corporations  in  other  directions.^  During  this  period  it  was  only 
just  beginning  to  be  developed ;  and  even  at  this  period  it  is 
clear  that  the  law  on  this  subject  was  being  constructed  rather  by 
considerations  of  expediency  which  emerged  from  the  discussion 
of  individual  cases,  than  by  any  attempt  to  work  out  logically 
deductions  drawn  from  the  nature  of  corporate  personality.  Let 
us  look  at  one  or  two  illustrations. 

Though  some  of  the  canonists  had  laid  it  down  that  a  cor- 
poration cannot  commit  a  delict,^  though  its  capacity  for  delictual 
liability  was  clearly  restricted  in  certain  directions ;  ^  the  common 
lawyers  found  no  difficulty  in  making  it  liable  for  certain  kinds  of 
wrong-doing.  We  have  seen  that  delictual  liability  was  founded 
upon  an  act  contrary  to  law  which  caused  damage  to  another ;  * 
and  the  common  lawyers  agreed  that  for  such  acts  which  caused 
damage  to  the  person  or  property  of  another  a  corporation  was 
liable.^  Again,  being  a  person  which  owned  property,  it  could 
suffer  delicts  in  respect  of  that  property.'''  It  could  also  deal 
with  that  property,  and  for  that  purpose  make  conveyances  or 
contracts ;  and  it  could  be  made  liable,  if  through  its  servants 

ly.B.  15  Ed.  IV.  Mich.  pi.  2;  see  L.Q.R.  xxvii  233  for  Sir  F.  Pollock's  ex- 
planation of  this  passage. 

2  Bk.  iv.  Pt.  II.  c.  6  §  2. 

3  Above  474.  ■*  Above  484-485.  ^  Above  375-377. 
"Y.BB.  45  Ed.  III.  Hil.  pi.  5;  46  Ed.  III.  Mich.  pi.  7;  8  Hy.  VI.  Mich.  pi.  2; 

32  Hy.  VI.  Mich.  pi.  13. 

■^  Y.B.  21  Ed.  IV.  pp.  13,  14  per  Brian,  C.J. 


THE  INCORPORATE  PERSON  489 

damage  was  caused  to  another  by  breach  of  contract.^  Gradually 
the  rule  that  the  consent  of  the  corporation  to  be  bound  can  only 
be  evidenced  by  its  seal  hardened  into  a  fixed  rule  of  law.^  But 
the  exceptions,  (i)  that  a  corporation  which  has  had  the  benefit 
of  property  must  pay  for  it,  though  there  is  no  contract  under 
seal,^  and  (ii)  that  for  small  everyday  matters  the  seal  need  not 
be  used,^  seem  almost  contemporary  with  the  establishment  of 
the  principal  rule.  Indeed  the  first  exception  may  be  older  than 
the  principal  rule  in  its  final  form — a  survival  from  the  days  when 
the  idea  of  2.  persona  ficta  was  as  yet  ungrasped.  As  yet  the  law 
on  all  these  points  is  meagre  ;  but  we  shall  see  that  it  is  from  these 
decisions  that  the  later  common  law  rules  were  developed. 

Dissolution. 

We  have  seen  that  one  of  the  most  marked  distinctions  be- 
tween an  incorporate  and  a  natural  person  was  the  fact  that  the 
incorporate  person  was  not  subject  to  death  or  other  weaknesses 
which  affect  the  natural  man.^  But,  for  all  that,  it  was  beginning 
to  be  apparent  that  it  was  liable  to  dissolution  and  other  casualties 
which  could  be  compared  to  death  or  other  incapacities  by  which 
natural  men  are  affected.  Thus  it  was  laid  down  in  144 1  that  if 
all  the  members  of  a  corporation  perished  the  corporation  was 
dissolved  ;  ^  and  if,  as  the  result  of  proceedings  on  a  scire  facias, 
its  charter  was  revoked  or  modified,  it  necessarily  disappeared  or 
altered  its  character.'^  Similarly,  its  life  might  be  suspended  or 
perhaps  destroyed  as  the  result  of  proceedings  on  a  writ  of  quo 

1  V.B.  48  Ed.  III.  Trin.  pi.  ^  per  Belknap. 

2Y.B.  22  Hy.  VI.  Mich.  pi.  6;  Longo  Quinto  43;  Y.B.  21  Ed.  IV.  Hil.  pi.  9 
a  distinction  is  again  drawn  between  the  case  of  the  abbot  or  the  sole  dean  and  other 
corporate  bodies ;  a  lease  by  them,  though  not  under  seal,  holds  good  for  their  term 
of  office;  but  it  is  otherwise  of  a  corporation  aggregate  like  a  borough  or  chapter; 
the  growing  importance  of  the  latter  class  of  corporations  tended  to  make  the  rule 
a  fixed  general  rule  of  law. 

3  Above  473. 

^Y.BB.  4  Hy.  VII.  Pasch.  pi.  2,  "Est  diversite  parenter  tiels  chosesqui  sont 
occupies  chescunjour  et  auters,"/^r  Townsend;  7  Hy.  VII.  Hil.  pi.  2,  "11  ne  re- 
quiert  avoir  fait  a  chescun  petit  chose," /^y  Tremaile. 

''Above  484. 

^  "  Brown. — Et  mesques  touts  les  Moines  meurent  en  cest  Abbey  a  un  temps, 
uncore  auters  puront  estre  profess;  en  quel  cas  le  rent  tout  temps  demeuront. 
Paston. — Certes  ceo  ne  puisent  sans  novel  creation.  Ad  quod  concordat  Newton,'''' 
Y.B.  20  Hy.  VI.  Mich.  pi.  7  (p.  8) ;  we  shall  see  that  this  view  prevailed,  though  in 
Y.B.  7  Ed.  IV.  Trin.  pi.  2  (p.  12)  Danby,  differing  from  Choke,  was  of  the  same 
opinion  as  Brown. 

■^  See  Y.B.  15  Ed.  IV.  Mich.  pi.  12  (p.  7)  per  CoUow  and  Fincham,  arg. ;  Basset 
v.  Corporation  of  Torington  (1568)  Dyer  276a  was  a  case  of  a  scire  facias  to  repeal 
a*grant  of  a  market  to  the  corporation;  and  in  a  similar  case  of  1571,  reported  in 
Moore  327,  the  judges  seemed  to  think  that  the  whole  charter  might  be  repealed ; 
there  does  not  seem  to  be  any  mediaeval  precedent  for  the  repeal  of  a  charter  of 
incorporation  by  scire  facias,  Grant,  Corporations  (ed.  1850)  40  n.  [s) ;  whether  a 
charter  creating  a  corporation  could  be  forfeited  by  any  means  was  one  of  the  points 
argued  in  the  proceedings  against  the  City  of  London  in  1682,  Bk.  iv.  Pt.  II.  c.  6  §  2, 


490  STATUS 

warranto ;  ^  and  we  have  seen  that  the  death  or  removal  of  its 
head  reduced  it  to  a  condition  of  suspended  animation,  which  had 
an  effect  upon  its  capacity  somewhat  analogous  to  the  effect  of 
a  minority  upon  the  capacity  of  a  natural  man.^  What  would 
happen  to  its  property  in  case  of  dissolution  is  by  no  means  clear. 
No  rule  seems  as  yet  to  have  emerged  as  to  chattels ;  but  in  the 
case  of  land  the  rule,  which  has  ultimately  prevailed,  that  the 
donor  who  gave  the  land  could  re-enter,  was  laid  down  in  Edward 
IV.'sireign.^  Up  to  that  time  it  was  doubtful  whether  in  such 
a  case  the  donor  could  re-enter  or  whether  the  land  escheated.* 
Gray  has  pointed  out  that  the  view  of  those  who  held  that  the 
land  escheated  was  the  more  logical ;  ^  and  he  is  probably  right 
in  thinking  that  the  opposite  view  was  derived  from  a  considera- 
tion of  cases  where  the  land,  being  held  in  frankalmoin,  was  neces- 
sarily held  of  the  donor ;  ^  so  that  whether  it  escheated  or  not  the 
donor  would  get  it7  But  on  all  these  matters  we  can  see  little 
more  than  the  germs  of  the  modern  rules. 

It  is  thus  clear  that,  by  the  end  of  the  mediaeval  period, 
the  conception  of  an  incorporate  person  has  been  introduced 
into  the  common  law.  The  law  has  acquired  some  general 
ideas  as  to  the  nature  of  such  a  person  ;  and  from  these  general 
ideas  certain  concrete  rules  have  been  deduced  which  are  the 
basis  of  the  rules  of  the  modern  common  law.  But  we  can  see 
that  the  main  body  of  the  law  will  be  constructed,  not  by  the 
method  of  deducing  rules  from  the  nature  of  corporate  personality, 
but  by  the  much  more  practical  method  of  regulating  in  detail 
the  activities  of  these  corporations  as  and  when  questions  as  to 
their  powers,  capacities  and  liabilities  come  before  the  courts. 
In  this  period,  therefore,  both  the  foundation  of  the  modern  rules 
and  the  mode  of  the  future  development  of  this  branch  of  the 
law  are  foreshadowed.  Of  the  way  in  which  the  modern  law 
was  developed  on  this  basis  I  shall  speak  in  subsequent  Books 
of  this  History. 

1  See  cases  from  the  P.Q.W.  cited  Grant,  Corporations  297 ;  for  these  placita 
see  vol.  i  88 ;  for  the  later  history  of  the  procedure  by  quo  warranto  see  Bk.  iv.  Pt. 
II.  c.  6  §  2. 

2  Above  486-487  ;  for  the  effect  of  minority  see  below  513. 

3  Y.BB.  7  Ed.  IV.  Trin.  pi.  2  (p.  12)  per  Choke;  11  Ed.  IV.  Trin.  pi.  7  per 
Choke. 

^In  Y.B.  9  Ed.  III.  Trin.  pi.  24  (p.  26)  Hill  and  Schardelowe  favour  the  view 
that  the  property  escheats ;  and  the  same  view  seems  to  have  been  held  by  Littleton, 
Y.B.  35  Hy.  VI.  Pasch.  pi.  2  (pp.  56-57) ;  Bro.  Ab.  Corporations  pi.  78  vouches  Y.B. 
20  Hy.  VI.  Mich.  pi.  7  for  the  rule  that  the  land  escheats,  but  the  printed  Y.B.  does 
not  bear  this  out. 

^  Perpetuities  {2nd  ed.)  43-47. 

"Above  36-37. 

■^  Perpetuities  45-46  ;  it  may  be  noted  that  in  Y.B.  12  Ed.  IV.  Pasch.  pi.  7  (p.  3) 
Catesby  states  the  rule  as  applicable  to  land  held  in  frankalmoin — "  si  jeo  done  terre 
a  un  Abbe  en  frankalmoigne,  si  touts  les  moignes  devient,  jeo  avera  la  terre," 


THE  VILLEIN  491 

§  3.  The  Villein  ^ 

The  villeins  were  a  composite  class.  They  were  made  up 
of  those  slaves  which  were  known  to  the  Anglo-Saxon  law 
and  of  those  free  yet  dependent  cultivators  of  the  soil  whose 
tenure  was  defined  by  the  Norman  lawyers  to  be  unfree.  These 
diverse  classes  were  thrown  together  by  the  Norman  and  Angevin 
lawyers  and  classed  as  villeins ;  and  under  the  influence  of 
conceptions  borrowed  from  Roman  law  many  of  the  rules  and 
maxims  of  the  Roman  conception  of  slavery  were  applied  to 
them.  Their  lord  had  absolute  power  over  their  bodies  and 
their  goods.  He  could  sell  them  and  treat  them  as  he  pleased ; 
for  they  were  his  chattels.  They  were  all  equally  things — 
"there  are  no  degrees  of  personal  unfreedom."^  The  Dialogus 
de  Scaccario,  Glanvil,  Bracton,  Britton,  and  Fleta  all  hold  the 
theory.^  But  it  was  a  theory  which  fitted  in  veiy  badly  (l) 
with  the  facts  of  English  life,  (2)  with  the  principles  of  English 
law,  public  and  private,  and  (3)  with  the  leaning  in  favour  of 
liberty  which  was  constantly  proclaimed  by  the  king's  judges 
from  the  earliest  period.  Consequently  the  general  theory 
with  which  the  law  started  was  modified  in  every  direction, 
with  the  result  that  the  status  of  the  villein  became  one  of  the 
greatest  curiosities  of  the  mediaeval  common  law. 

(i)  The  theory  of  the  lawyers  fitted  in  very  badly  with  the 
facts  of  English  life.  The  villein  was  the  inhabitant  of  the 
manor,  who  held  his  land  on  the  terms  of  performing  various 
agricultural  services.  In  some  cases  he  was  the  descendant  of 
the  Anglo-Saxon  theow;  but  in  many  cases  he  was  the  de- 
scendant of  the  dependent  yet  personally  free  ceorl.^  The  Mirror 
of  Justices  considered  it  an  abuse  that  all  these  persons  should 
be  considered  personally  unfree ;  and  in  this  instance  the  Mirror 
may    well    have    preserved   an   old  tradition.^     He  held  a  plot 

1  The  chief  authorities  are  Vinogradoff,  Villeinage ;  P.  and  M.  i  395-415 ; 
Maitland,  History  of  a  Cambridgeshire  Manor,  E.H.R.  ix  417-439;  Davenport, 
Development  of  a  Norfolk  Manor ;  Leadam,  articles  in  Royal  Hist.  Soc.  Tr. 
N.S.  vi  and  viii ;  E.H.R.  viii  684  ;  L.Q.R.  ix  348  ;  and  the  cases  and  introductions 
in  Select  Cases  in  the  Court  of  Requests  (S.S.),  and  Select  Cases  in  the  Court 
of  Star  Chamber  (S.S.) ;  Savine,  Bondmen  under  the  Tudors,  Royal  Hist.  Soc. 
Tr.  N.S.  xvii  235  seqq, 

2 P.  and  M.  i  396;  for  the  meaning  of  the  terms  "villein  regardant"  and 
•*  in  gross,"  which  were  at  one  time  supposed  erroneously  to  denote  degrees  of 
personal  unfreedom,  see  note  at  the  end  of  this  section. 

3  See  references  in  Vinogradoff,  Villeinage  44,  45  ;  Dialogus  II.  x,  "  Cum  enim 
ascriptitiorum  dominis  liberum  sit,  non  solum  illos  transferre,  verum  etiam  qui- 
buscunque  modis  distrahere,  sicut  supra  dictum  est;  et  non  tantem  catallorum 
sed  et  corporum  merito  domini  reputentur." 

^  Vol.  ii  42-43,  167,  202,  264-265. 

"*  At  p.  80 ;  and  cp.  Leadam,  Tr.  Royal  Hist.  Soc.  N.S.  vi  195,  and  Select  Cases 
in  the  Court  of  Star  Charriber  (S.S.)  cxxvii,  cxxviii, 


492  STATUS 

of  land  of  his  own,  and  made  his  h'ving  out  of  it.  In  fact,  he 
was  of  Httle  use  apart  from  his  tenement ;  and  though  the 
lord  could  change  his  tenement  as  he  pleased,  he  could  make 
little  profit  of  him  unless  he  employed  him  upon  the  land  and 
gave  him  a  home.^  It  is  for  this  reason  that  we  hear  very  little  of 
sales  of  villeins  apart  from  the  land.  No  doubt  the  lord  could 
so  sell  them  if  he  pleased,  and  sometimes  did  so.^  But  economic 
causes  prevented  the  existence  of  anything  like  a  market  for 
villeins ;  and  this  fact  alone,  whatever  might  be  the  theories  of 
the  lawyers,  fixed  a  great  gulf  between  the  villein  and  the  slave. ^ 
Living  thus  in  the  manor  the  villein  was  protected  (i)  by  the 
growing  fixity  of  the  custom  of  the  manor  which  defined  his 
duties  and  his  lord's  rights,  and  (ii)  by  the  communal  character 
of  the  manorial  organization,  which  preserved  the  memory  of 
the  time  when  such  communities  were  composed  of  the  personally 
free.  *  We  have  seen  that  the  manor  through  its  court  was  capable 
of  very  varied  activities — even  of  agreements  with  the  lord ;  ^ 
and  that  court  was  often  composed  of  villeins.  The  atmosphere 
of  legality  which  we  see  in  the  manorial  courts  made  transactions 
between  lord  and  villein  seem  very  natural.  But  if  the  theory  as 
to  the  villein's  status  held  by  the  royal  courts  was  adopted,  these 
transactions  were  legally  impossible.  The  lawyers  could  save 
their  theory  only  by  adopting  one  or  other  of  two  courses.  They 
might  decline  to  recognize  these  transactions,  or  they  might  say 
that  the  fact  that  they  were  entered  into  operated  as  an  implied 
manumission.  They  chose  the  latter  alternative  because,  as  we 
shall  see,  it  was  more  convenient,  and  more  consonant  with 
other  principles  of  the  common  law.^  The  result  was  that  a 
gift  to  a  villein  by  his  lord  of  an  estate  of  inheritance,^  pleading 
with  one's  villein  in  court  as  if  he  were  free,^  perhaps  appointing 
him   as   attorney  for  litigation  in  a  court  of  record,^  and,  after 

^The  Mirror  (S.S.)  165  tried  to  represent  that  the  lord's  right  to  his  serf  was 
conditional  on  his  providing  sustenance.  Leadam  thinks  that  there  was  a  con- 
tinuous legal  tradition  to  this  effect,  Select  Pleas  in  the  Star  Chamber  (S.S.)  cxxviii 
— but  he  hardly  proves  his  point;  see  above  30  nn.  8-10. 

2  P.  and  M.  i  397  n.  2,  and  Madox,  Form.  nos.  755,  763-765;  Y.B.  21  Ed.  IV. 
Pasch.  pi.  13  we  have  an  instance  of  a  lease  of  a  villein  for  a  term  of  years ; 
see  Madox,  Form.  nos.  302,  315,  410,  440  for  sales  of  land  with  villeins. 

^  Vinogradoff,  Villeinage  151-153. 

^  Vol.  ii  376-377.  '  Ibid  377  ;  cp.  E.H.R.  xxxvii  409-413. 

"  Bracton  ff.  24  b,  208b  seems  to  think  that  an  agreement  might  be  made  with 
a  villein  ;  but  this  was  not  the  view  which  prevailed,  Litt.  §§  205-207 ;  cp.  P. 
and  M.  i  401  ;  Vinogradoff,  Villeinage  70-74 ;  above  418  n.  7. 

7  P.  and  M.  i  410  ;  Y.BB.  20,  21  Ed.  I.  (R.S.)  374 ;  21,  22  Ed.  I.  (R.S.)  8 ; 
32,  33  Ed.  I.  (R.S.)  240;  14,  15  Ed.  III.  (R.S.)  48 — vouching  a  villein  to  warranty; 
but  cp.  18  Ed.  III.  (R.S.)  at  p.  122  where  the  opinion  is  expressed  that  he  could 
be  vouched,  with  a  saving  of  the  •*  servitude."  Note  the  opinion  of  Inge,  J.,  in 
Y.B.  6,  7  Ed.  II.  (S.S.)  202  that  it  was  only  a  feoffment  "to  hold  by  homage" 
that  would  enfranchise  the  villein  ;  this  view  does  not  seem  to  have  been  followed, 

^y.B.  ^  Ed.  II.  (S.S.)  130 — but  the  reporter  questioned  this  rule, 


THE  VILLEIN  493 

a  little  hesitation,  making  a  covenant  with  him — all  operated 
as  manumissions.  It  was  therefore  very  dangerous  for  a  lord 
either  to  litigate  or  to  have  any  business  dealings  with  his 
villein,  and  he  found  but  a  poor  set  off  in  the  converse  rule 
that  an  admission  by  a  villein  in  court  that  he  was  a  villein 
was  conclusive  as  to  servile  status.^ 

The  theory  of  the  lawyers,  which  threw  together  into  the 
class  of  the  personally  unfree  the  majority  of  the  humbler 
cultivators  of  the  soil,  had  ignored  the  fact  that  many  of  these 
persons  were  personally  free ;  and  facts  revenged  themselves 
upon  such  a  theory.  The  lawyers  were  obliged  to  reintroduce 
a  distinction  which  they  had  ignored  by  distinguishing  sharply 
unfreedom  of  status  from  unfreedom  of  tenure,^  because  it  was 
quite  obvious  that  many  were  holding  by  a  tenure  classified  as 
unfree  whose  status  could  not  only  not  be  proved  to  be  unfree, 
but  could  even  be  proved  to  be  free.  The  necessity  of  drawing 
this  distinction,  which  it  was  difficult  to  maintain  in  practice, 
was  really  a  consequence  of  trying  to  impose  too  simple — too 
Roman — a  classification  upon  the  complex  elements  of  which 
the  humbler  classes  of  English  society  were  composed.  Though 
the  condition  of  the  former  freemen  was  depressed  by  the  theory 
of  the  lawyers,  the  condition  of  the  former  slaves  was  raised. 
Both  were  thrown  together  into  one  class.  As  a  matter  of  fact, 
in  the  daily  life  of  the  manor  it  made  little  difference  whether 
the  status  or  the  tenure  or  both  were  unfree;  for,  as  we  have 
seen,  the  fixed  customs  and  communal  life  of  the  manor  regulated 
the  lives  of  all  who  dwelt  therein. 

(2)  The  theory  of  the  lawyers  fitted  in  very  badly  with  the 
principles  of  English  law,  public  and  private.  We  have  seen  that 
the  local  government  of  the  country  was  carried  on  through  the 
agency  of  the  communities  of  the  land.  Many  whose  status  was 
unfree  were  obliged  to  serve  in  leet,  tourn,  and  hundred  court,  and 
to  act  as  jurors.  They  must  possess  the  arms  required  by  the 
Assize  of  Arms  and  the  Statute  of  Winchester.  They  must  turn 
out  to  assist  the  sheriff  to  keep  the  peace.  They  were  liable  to 
pay  taxes  with  free  persons  on  any  movables  which  they  possessed. 
"  The  state  has  a  direct  claim  upon  their  bodies,  their  goods,  their 
time,  and  their  testimony."^     The  lord  could  imprison  and  beat 

1  Y.BB.  20,  21  Ed.  I.  (R.S.)  40 ;  19  Hy.  VI.  Mich.  pi.  65  '«  Newton  dit  a  les 
tesmoignes,  Come  prochein  estes  vous  del  sang  del  defendant  ?  et  ils  mirerent  que 
ils  furerent  ses  oncles.  Newton. — Estes  vous  villeins  al  pleintif  auxi  ?  Qui  disent, 
Ouy.  Done  dit  Newton,  Coment  que  vous  ussies  etre  franc  devant  cest  jour,  par 
cest  conisance  devant  nous,  vous  avez  lie  vous  et  vos  heires  de  votre  corps  a 
villeinage  a  toujours." 

2  Vol.  ii  202,  264,  577. 

^  P.  and  M.  i  404,  405 ;  see  ibid  405  n.  i  as  to  the  extension  of  the  provisions  of 
the  Assize  of  Arms  to  villeins. 


494  STATUS 

his  villein ;  and  in  practice  this  may  have  led  to  a  good  deal  of 
oppression  in  particular  cases.^  But  against  grosser  forms  of 
personal  violence  he  was  protected  by  the  criminal  law.^  The 
peace  must  be  kept ;  and  this  exception  to  the  absolute  character 
of  the  lord's  rights  could  be  justified  by  the  rescript  of  Antoninus, 
which  laid  it  down  that  the  master  must  not  grossly  illtreat  his 
slave,  because  it  was  for  the  public  interest  to  see  that  no  one  made 
a  bad  use  even  of  his  own  property.^  Conversely,  in  the  public 
interest  he  must  be  punished  as  a  freeman  if  he  committed  crimes  ; 
and  if  he  was  attainted  of  felony,  the  king  and  not  the  lord  took 
his  chattels.^  To  allow  his  lord  sole  jurisdiction  over  him  would 
be  to  establish  again  those  private  jurisdictions  the  limitation  of 
which  was  the  condition  precedent  of  the  life  of  royal  justice  and 
the  common  law.^  We  may  note,  too,  that  the  rights  of  the  king 
and  of  the  church  sometimes  conflicted  with  the  rights  of  the  lord, 
and  operated  to  confer  freedom.  A  man  who  had  lived  in  a 
borough  or  on  the  king's  demesne  for  a  year  and  a  day  became 
free,  unless  he  acknowledged  his  lord's  rights  by  paying  a  sum 
called  chevagiurn.  Similarly,  a  man  who  had  entered  religion  was 
free  unless  and  until  he  resumed  a  secular  life.*  All  these  various 
rules  of  public  or  constitutional  law  were  thus,  in  their  different 
ways,  wholly  opposed  to  the  theory  that  a  villein  was  a  slave. 

The  theory  was  opposed  no  less  to  certain  fundamental 
principles  of  private  law,  which,  in  their  origin,  were  closely 
connected  with  some  of  these  principles  of  public  law.  We  have 
seen  that  the  principle  that  the  peace  must  be  kept  and  self-help 
prohibited,  led  the  common  lawyers  of  the  thirteenth  century  to 
protect  by  rapid  and  effective  remedies  any  de  facto  seisin.'''  We 
have  seen  that  many  incorporeal  things  were  then  regarded  as 
being  the  subjects  of  seisia  Among  these  things  was  the  valuable 
right  of  liberty.  "In  Bracton's  day  a  serf  who  fled  had  to  be 
captured  within  four  days,  otherwise  he  could  not  be  captured  unless 
within  year  and  day  he  returned  to  his  "  villein  nest : "  a  parallel 
rule  gave  the  ejected  landholder  but  four  days  for  self-help."  ^  We 
shall  see  that  the  courts  placed  a  very  heavy  burden  of  proof  upon 
the  lord  who  was  obliged  to  use  legal  process  to  recapture  his 

lY.B.  6,  7  Ed.  II.  (S.S.)  201-203  and  liv-lv ;  cp.  Y.B.  6  Ed.  II.  (S.S.)  151-152. 

2  See  Bills  in  Eyre  (S.S.)  no.  40,  and  Mr.  BoUand's  comment  Introd.  lix. 

3  P.  and  M.  i  39S,  399  and  references  there  cited. 

4  The  Eyre  of  Kent  (S.S.)  i  141. 

5  Vinogradotf,  Villeinage  64,65;  and  see  Y.B.  30,  31  Ed.  I.  (R.S.)  536;  vol. 
ii  202,  272. 

fi  P.  and  M.  i  412 ;  as  to  chevagium  see  Vinogradoff,  op.  cit.  157 ;  he  seems  to 
give  a  somewhat  different  definition  in  E.H.R.  xv  778;  but  as  to  this  see  Savine, 
Royal  Hist.  Soc.  Tr.  xvii  266  n.  i. 

'  Above  9. 

^  P.  and  M.  i  401.  The  expression  "  villein  nest "  occurs  in  Y.BB.  21,  22  Ed.  I. 
(R.S.)  449;  33-35  Ed.  I.  (R.S.)  205;  I.  2  Ed.  II.  (S.S.)  II. 


THE  VILLEIN  495 

villein.^  Thus,  as  Sir  Paul  Vinogradoff  has  said,  "  it  was  sufficient 
to  cross  a  brook  or  to  remove  to  a  neighbouring  borough  to  secure 
preliminary  protection,  and  often  to  sever  the  tie  binding  a  man  to 
his  villein's  nest  for  ever."^  This  application  to  the  law  of  villein 
status  of  the  principles  applied  to  seisin  was  followed  out  in  detail 
in  other  directions ;  and  it  is  mainly  on  account  of  the  manner  in 
which  it  was  thus  followed  out  that  the  great  characteristic 
contrast  between  mediaeval  villeinage  and  Roman  slavery  was 
reached.  We  have  seen  that,  as  the  result  of  the  doctrine  of 
seisin  in  property  law,  the  common  law  knew  no  such  thing  as 
absolute  dominium,:  all  it  knew  was  a  variety  of  rights  to  seisin, 
older  and  better,  or  younger  or  weaker,  relatively  good  and 
relatively  bad,  but  all  alike  entitling  the  person  de  facto  seised  to 
the  rights  of  ownership.^  Now  if  we  apply  these  doctrines  to  the 
seisin  by  the  lord  of  his  villein  on  the  one  side,  and  to  the  seisin  by 
the  escaped  villein  of  his  liberty  on  the  other,  we  shall  find  that  they 
will  result  in  the  doctrine  that  though  the  villein  qua  his  lord  is 
rightless  or  nearly  so,  qua  all  the  rest  of  the  world  he  must  be  re- 
garded as  free.  In  other  words,  villeinage  is  the  relation  of  a 
person  to  his  lord  :  it  is  not,  like  slavery,  a  condition  of  rightless- 
ness  as  against  the  world  at  large.  As  against  the  lord  who  is 
seised  of  him  the  villein  has  no  property,  and  can  bring  no  action  if 
assaulted  or  imprisoned.  As  against  the  rest  of  the  world,  who  are 
not  seised  of  him,  the  villein  himself  is  seised  of  his  freedom,  and 
can  act  as  a  free  man.*  This  sometimes  led  to  curious  results.  A 
villein  could  sue  any  third  person  as  if  he  were  free,  but  if  he  were 
sued  he  might  reply  that  he  was  X's  villein  and  owned  no  property, 
and  the  action  was  dismissed.^  This  rule  was  probably  modified  in 
the  case  of  the  personal  actions,  but  it  remained  in  the  case  of  the 
real  actions.^  But  even  in  the  case  of  the  personal  actions  the 
plaintiff  who  recovered  was  in  a  precarious  position.  The  lord 
might  intervene  and  claim  all  the  villein's  chattels  as  his  own.'' 
It  is  not  uncommon  to  find  that  the  villein  who  has  been  condemned 
to  pay  fines  in  the  ecclesiastical  courts  is  punished  by  the  lord  for 
wasting  what  are  really  the  lord's  goods. ^ 

The  result  was  to  give  the  villein  in  some  events  a  privileged 
position.     He  could  sue,  but  could  evade  being  sued.     This  opened 

^  Below  498-499. 

2E.H.R.  XV  778,  779;  and  cp.  P.  and  M.  i  414,  415. 

3  Above  91. 

^Vinogradoff,  Villeinage  67-69;  P.  and  M.  i  412,  413. 

6Y.BB.  32,  33  Ed.  I.  (R.S.)  240;  17, 18  Ed.  III.  (R.S.)  152;  Britton  ii  159,  168, 
169;  the  plea  could  not  be  contradicted  till  37  Edward  III.  c.  17  altered  the  law; 
it  is  obvious  that  the  rule  was  being  made  use  of  for  purposes  of  fraud,  see  Fitz.,  Ab. 
Briefe  pi.  322,  cited  P.  and  M.  i  408  n.  3 — a  man  may  confess  himself  villein 
to  his  father  and  get  a  release  the  next  day  ;  and  cp.  Y.BB,  15  Ed.  III.  (R.S.)  338; 
18,  19  Ed.  III.  (R.S.)  xxxv-xxxvi ;  Vinogradoff,  Growth  of  the  Manor  344. 

6  P.  and  M.  i  403.  '  Ibid  404.  s  Vol.  ii  381. 


496  STATUS 

the  door  to  abuse  and  collusion.  We  have  seen  that  the  later 
part  of  the  mediaeval  period  was  characterized  by  litigiousness  and 
by  a  readiness  to  take  advantage  of  every  shift  provided  by  an 
elaborate  procedure.  Much  could  be  done  to  stop  or  impede  an 
action  by  a  plea  of  villeinage.^  These  opportunities  were  not  let 
slip ;  and  we  shall  see  that  it  was  the  abuse  of  this  and  other 
technical  rules  which  had  indirectly  something  to  do  with  the  long 
continuance  and  the  ultimate  disappearance  of  the  status.^  Here 
we  need  only  note  that  these  abuses  were  rendered  possible  by 
the  peculiar  status  of  the  villein;  and  that  that  status  was  the 
logical  consequence  partly  of  the  rules  of  public  and  criminal  law, 
which  in  the  public  interest  treated  him  in  all  respects  as  a  free 
man,  and  partly  of  the  rules  of  private  law,  which  was  almost 
compelled  by  its  own  principles  to  allow  that  he  was  seised  of 
freedom  as  against  all  save  his  lord. 

(3)  The  theory  of  the  lawyers  was  opposed  to  that  leaning  in 
favour  of  liberty  which  was  professed  by  all,  and  more  especially 
by  the  lawyers  themselves.  That  the  condition  of  serfdom  was 
coming  to  be  considered  hard  we  can  see  from  the  words  which 
Chaucer  puts  into  the  mouth  of  his  Parson.^  A  lord,  ever  since 
the  days  of  Bracton,  could,  as  we  have  seen,  manumit  his  villeins 
by  charter;*  but  such  manumissions  were  generally  made  in 
consideration  of  a  money  payment.^  They  were  favoured  by  the 
courts ;  but,  after  all,  they  were  occasional,^  and  hardly  affect,  if 
they  do  not  illustrate,  the  legal  theory  of  villeinage.  The  lord 
when  he  manumits  is  disposing  of  his  own  property."  It  is  in  the 
doctrines  of  the  lawyers  that  we  get  the  strongest  statements  in 
favour  of  liberty ;  and  these  doctrines  may  well  have  helped  to 
form  a  public  opinion  adverse  to  the  continuance  of  the  status. 
We  get  a  good  idea  of  the  general  principle  adopted  by  the  lawyers 

1  Vol.  ii  459  nn.  3,  4.  2  Below  502-505. 

^The  Parson's  Tale  (cited  by  Leadam,  Select  Cases  in  the  Star  Chamber 
(S.S.)  cxxv).  Those  are  condemned  who  "  taken  of  here  bondmen  amerciments, 
whiche  mighte  more  resonably  ben  cleped  extorcions  than  amerciments.  Of  whiche 
amerciments  and  raunsoninge  of  bondemen  some  lordes  stywardes  seyn  that  it  is 
rightful,  for  as  much  as  a  cherl  hath  no  temporel  thing  that  it  ne  is  his  lordes,  as 
they  seyn.  But  certes,  thise  lordeshipes  doon  wrong  that  bireven  hir  bondefolk 
thinges  that  they  never  yave  them  ;  "  for  a  hard  case  of  this  kind  in  1435  see  History 
of  Castle  Combe  223,  225. 

^  Vol.  ii  202  n.  I 

5  The  difficulty  that  a  villein,  being  capable  of  owning  no  property,  could  not  buy 
his  manumission  was  got  over  by  the  intervention  of  a  third  person  to  whom  the 
villein  had  previously  handed  the  price  of  manumission,  Glanvil  v.  5 ;  P.  and  M.  i 
410,  411 ;  Select  Cases  in  the  Court  of  Star  Chamber  (S.S.)  cxxix. 

^  Sometimes  they  seem  to  have  been  made  only  because  the  villein  was  old  and 
useless,  see  a  manumission  of  the  Bishop  of  Exeter,  cited  E.H.R.  xv  25. 

^  See  below  504  n.  3  for  the  curious  point  as  to  whether  a  tenant  in  tail  of  a 
manor  can  manumit  for  a  longer  period  than  his  own  life ;  Select  Cases  in  the 
Court  of  Requests  (S.S.)  Ixxii. 


THE  VILLEIN  497 

from  the  following  words  used  by  Herle  in  argument  in  1310:^ 
"  In  the  beginning,"  he  says,  "  every  man  in  the  world  was  free, 
and  the  law  is  so  favourable  to  liberty  that  he  who  is  once  found 
free  in  a  court  that  bears  record  shall  be  hoi  den  free  for  ever, 
unless  it  be  that  some  later  act  of  his  own  makes  him  villein."  But 
general  statements  about  the  rights  of  man  are  not  of  much  avail 
unless  they  are  translated  into  practical  rules.  It  was  because  the 
leaning  of  the  lawyers  in  favour  of  liberty  was  translated  into  many 
different  practical  rules  that  their  views  had  a  large  effect  all 
through  this  period  in  reducing  the  number  of  those  who  were  of 
villein  status  ;^  and  we  shall  see  that  in  the  following  period  these 
rules  were  the  main  cause  for  the  final  disappearance  of  those  last 
remnants  of  a  status  which  still  survived  to  remind  men  of  an  order 
of  society  which  had  passed  away.^  I  have  already  touched  upon 
the  rules,  procedural  and  otherwise,  by  virtue  of  which  the  lawyers 
were  swift  to  imply  a  manumission  from  any  transaction  or 
litigation  between  lord  and  villein.^  The  same  bias  is  seen  in  the 
rules  laid  down  by  them  upon  the  procedure  to  be  followed  in 
trials  of  disputed  questions  of  status,  and  upon  certain  of  the  modes 
in  which  the  status  might  arise. 

The  lord  who  wished  to  recover  his  fugitive  villein  could  seize 
him  if  he  returned  to  his  manor,^  or  he  could  bring  the  writ  de 
nativo  habendo.^  If  the  lord  seized  the  villein,  the  villein  might 
bring  the  writ  de  homine  replegiando,  and  the  sheriff  would  replevy 
the  villein  on  his  giving  security  to  answer  the  charge  of  villeinage. 
If  the  lord  brought  his  action  he  might  seize  pending  the  trial  of 
the  writ,  unless  the  villein  sued  out  the  writ  de  libertate probanda^ 
This  privilege  was,  as  we  have  seen,  taken  away  from  the  villein 
by  a  statute  of  Edward  III.'s  reign, ^  and  the  writ  fell  into  disuse. 

1  Y.B.  3  Ed.  II.  (S.S.)  94;  cp.  Bracton  f.  igib ;  and  Y.B.  30,  31  Ed.  I.  (R.S.) 
166,  where  Hervy,  J.,  says  of  the  doctrine  that  a  nief,  married  to  a  freeman,  after  the 
death  of  her  husband  returns  to  her  former  condition,  that  it  is  "  worse  than  false,  it 
is  heresy." 

2  A  good  illustration  is  contained  in  Y.B.  20  Ed.  III.  (R.S.)  ii  468 — •*  the  Prior 
of  St.  Dionyslus  near  Southamptone  brought  his  writ  of  Naifty  against  John,  and, 
after  appearance,  he  was  non  suited.  Therefore,  because  this  was  a  writ  of  right, 
judgment  was  given,  infavorem  libertatis,  that  the  defendant  was  a  free  man  with 
regard  to  the  Prior  and  his  successors  for  ever.  And  this  is  a  case  in  which,  by 
reason  of  the  non  suit  of  the  demandant  before  the  mise  has  been  joined,  final 
judgment  will  be  rendered  against  him.  And  the  reason  is  the  favour  shown  to 
freedom,  etc." 

3  Below  508.  *  Above  492-493. 

5  Y.B.  21,  22  Ed.  I,  (R.S.)  448,  Metinghanij  J.,  "  If  my  villein  beget  a  child  on 
my  land  which  is  villeinage  and  the  child  so  begotten  go  out  of  the  limits  of  my  land, 
and  six  or  seven  or  more  years  afterwards  return  to  the  same  land,  and  I  find  him  in 
his  own  nest,  at  his  own  hearth,  I  can  take  him  and  tax  him  as  my  villein ;  for  the 
reason  that  his  return  brings  him  to  the  same  condition  as  he  was  in  when  he  went." 

^  Above  20  ;  App.  Ia  (16). 

■^  App.  Ia  (17) ;  cp.  Maitland,  Forms  of  Action  331. 

8  Above  20 ;  below  500. 
VOL.   III.— 32 


498  STATUS 

But  the  writ  de  homine  replegiando  was  still  open  to  the  person  so 
seized.^  At  the  trial  the  lord  was  under  many  very  serious 
disadvantages.  "  The  kind  of  evidence  which  the  lord  required  to 
prove  villeinage,  and  allowed  in  disproof  of  it,  is  only  applicable  to 
a  slavery  in  blood  and  family,  one  uninterruptedly  transmitted 
through  a  long  line  of  ancestors  to  the  person  against  whom  it  was 
alleged.  On  the  lord's  part  it  was  necessary  that  he  should  prove 
the  slavery  against  his  villein  by  other  villeins  of  the  same  blood, 
such  as  were  descended  from  the  same  common  male  stock,  and 
would  acknowledge  themselves  villeins  to  the  lord,  or  those  from 
whom  he  derived  his  title;  and  at  least  two  witnesses  of  this 
description,  and  of  the  male  sex,  were  requisite  for  the  purpose. 
Nay,  so  strict  was  the  law  in  this  respect,  that  in  the  Nativo 
Habendo  the  defendant  was  not  obliged  to  plead  to  the  claim  of 
villeinage,  unless  the  lord  at  the  time  of  declaring  on  his  title 
brought  his  witnesses  with  him  into  court,  and  they  acknowledged 
themselves  villeins,  and  swore  to  their  consanguinity  with  the 
defendant ;  and  if  the  plaintiff  failed  in  adducing  such  previous 
evidence,  the  judgment  of  the  court  was  that  the  defendant  should 
be  free  for  ever,  and  the  plaintiff  was  amerced  for  his  false  claim. 
In  other  actions  the  production  of  suit  or  witnesses  by  the  plaintiff 
previously  to  the  defendant's  pleading  fell  into  disuse.^  .  .  .  But 
in  the  Nativo  Habendo  the  actual  production  of  suit  and  also  the 
examination  of  them,  unless  the  defendant  released  it  in  court, 
continued  to  be  indispensable,  even  down  to  the  time  when 
villeinage  expired."  Similarly,  if  the  person  whose  status  was  at 
stake  "  could  prove  that  slavery  was  not  in  his  blood  and  family, 
he  entitled  himself  to  liberty."^  He  was  allowed  to  use  two  or 
more  pleas,  for  the  rules  against  duplicity  in  pleading  were  in  this 
case  relaxed.  A  plea  that  he  or  any  of  his  male  ancestors  was  a 
bastard  was  a  peremptory  answer  to  the  lord,  because  a  bastard  is 
a  filius  nullius,  and  it  cannot  be  presumed  that  this  unknown  person 
was  a  villein."^  "  In  case  of  a  stranger  settling  on  land,  his  liberty 
was  always  assumed,  and  the  court  declined  to  construe  any 
uncertainty  of  condition  against  him.  When  villeinage  was  pleaded 
in  bar  against  a  person  out  of  the  power  of  the  lord,  the  special 
question  was  very  often  examined  by  a  jury  from  the  place  where 
the  person  excepted  to  had  been  lately  resident,  and  not  by  a 
jury  from  the  country  where  he  had  been  born.  This  told  against 
the  lord,  because  the  jurors  might  often  have  very  vague  notions  as 

^  Hargrave's  argument  in  Sommersett's  Case  (1771)  20  S.T.  38,  39  n. 

''Vol.  i  301. 

•''  Sommersett's  Case  43-46  and  authorities  there  cited ;  '*  Note  that  if  a  man  can 
prove  that  his  great-great-grandfather  was  a  free  man,  then  he  himself  is  no  villein 
because  his  grandfather  and  his  father  and  himself  may  have  fallen  into  and  continued 
in  a  state  of  villeinage,"  Y.B.  5  Ed.  II.  (S.S.)  113. 

^  Ibid  ;  the  rule  as  to  the  bastard  appears  as  early  as  Y.B.  19  Ed.  II.  ff.  651,  652. 


THE  VILLEIN  499 

to  the  previous  condition  of  their  new  fellow  countryman."  ^  This 
leaning  in  favour  of  liberty  settled  some  difficult  questions  as  to 
circumstances  under  which  a  child  might  be  born  a  villein.  If  both 
parents  were  villeins  the  child  was  of  course  a  villein;  but  if  one 
was  free  difficulties  began.  The  canon  law  laid  down  the  simple 
rule  that  whenever  one  of  the  parents  was  servile  the  child  was 
servile.  According  to  Bracton,  a  bastard  followed  the  mother; 
but  if  the  parents  were  married  much  depended  on  the  question 
whether  the  child  was  born  in  a  free  or  a  servile  tenement.  Later 
lawyers  distinguished  more  clearly  between  status  and  tenure. 
They  made  the  status  of  the  father  the  test^ — a  test  which  was 
perhaps  partly  the  cause,  partly  the  effect  of  the  rules  laid  down  as 
to  the  evidence  required  to  prove  servile  blood. ^ 

In  the  thirteenth  century  we  can  see  this  same  leaning  in 
the  doubt  as  to  how  far  prescription  could  make  free  blood 
servile.^  Ultimately  it  was  admitted  that  a  title  could  be  made 
by  prescription ;  but  of  course  a  claim  of  this  kind  might  be  met 
by  such  defences  as  bastardy  or  "adventif"^  As  a  matter  of 
fact,  if  a  family  holding  land  by  villein  services  had  long  been 
settled  in  a  manor,  the  presumption  of  unfree  status  would  be  easy 
to  make  and  difficult  to  disprove.  Though  it  might  be  laid  down 
in  theory  that  no  title  could  be  made  by  prescription,  the  fact  that 
a  lord  could  prove  that  a  family  had  held  by  villein  tenure,  and 
that  it  had  performed  villein  services  for  some  generations,  would 
give  him  the  means  of  satisfying  even  the  strict  proof  required  to 
maintain  the  writ  de  nativo  habendo.  Thus  it  may  easily  come  to 
be  said  that  villein  status  can  arise  by  prescription.®  We  may 
perhaps  find  some  parallel  in  the  manner  in  which  in  later  law 
prescription  by  way  of  lost  grant  sprang  up  by  the  side  of  pre- 
scription at  common  law.  In  both  cases  rules  of  law  were  adapted 
to  fit  the  common  facts  of  life  and  practice. 

1  Vinogradoff ,  Villeinage  84,  85 ;  such  a  plea  was  known  as  the  plea  oi^^adventif.''* 

2  Ibid  59-63  ;  P.  and  M.  i  405,  406. 

'It  is  laid  down  by  Britton  i  207,  and  Fitzherbert,  Ab.  Villein  pi.  37,  that  villein 
descent  could  not  be  traced  through  women ;  cp.  Sommersett's  Case,  loc.  cit.  44  n. 

^  That  prescription  could  not  make  free  blood  servile  was  asserted  in  a  case  of 
20  Ed.  I.,  reported  in  Hale,  P.C.  ii  298,  by  two  judges  of  assize;  but  this  was 
reversed  by  the  auditors  of  complaints ;  it  was  also  asserted  by  Britton  i  ig6,  206, 
and  in  Y.B.  33-35  Ed.  I.  (R.S.)  12,  14;  see  also  Y.B.  5  Ed.  II.  (S.S.)  113  cited 
above  498  n.  3 ;  the  annotator  of  Britton,  however,  seems  to  assert  that  perform- 
ance of  servile  services  for  five  generations  '^ill  make  a  free  man  servile,  Vino- 
gradoff  63;  but  cp.  30,  31  Ed.  I,  (R.S.)  138;  Fitz.,  Ab.  Villeinage  pi.  24  says 
that  occupation  of  villein  land  from  time  immemorial  makes  a  man  a  villein :  and 
that  a  title  can  be  made  by  prescription  seems  to  follow  from  what  Littleton  says  §§ 
182,  183. 

^  Fitz.,  Ab.  Villeinage  pi.  24. 

^  See  Fitzherbert,  Surveying  chap.  13  cited  below  503 ;  and  cp.  Litt.  §  174 — 
villein  service,  he  says,  does  not  make  a  free  man  villein,  yet  it  is  •'  folly  of  such 
free  man  to  take  in  such  form  lands  or  tenements  to  hold  of  the  lord  by  such 
bondage." 


500  STATUS 

In  the  result,  villein  status  as  moulded  by  these  influences 
became  a  very  relative  kind  of  praedial  serfdom  tempered  by 
custom  of  the  manor  and  by  that  communal  life  which  it  had 
inherited  from  a  time  before  there  was  common  law  or  legal 
memory.  For  many  purposes  the  common  law  must,  in  the 
interests  of  the  state  and  in  obedience  to  its  own  principles,  hold 
the  villein  to  be  a  free  and  lawful  man ;  and  it  will  throw  obstacles 
in  the  way  of  those  who  wish  to  reduce  their  fellows  even  to  this 
relative  servitude.  If  a  man  is  a  villein,  the  Romanizing  tenets  of 
the  lawyers  of  the  twelfth  and  thirteenth  centuries  have  had  just 
sufficient  result  to  give  the  lord  (subject  always  to  the  claims  of 
the  state)  large  powers  over  both  his  person  and  his  property ; 
and  seeing  that  these  powers  were  for  the  most  part  exercised 
over  those  who  held  by  an  unfree  tenure,  they  formed  a  useful 
help  in  maintaining  an  agricultural  system  run  upon  the  labour- 
service  method.  So  long  as  that  system  maintained  itself,  there 
was  nothing  in  this  relative  praedial  servitude  hopelessly  out  of 
harmony  with  the  existing  economic  and  social  order.  But  we 
have  seen  that  that  system  really  rested  upon  an  unstable  basis.  ^ 
The  same  causes  which,  by  substituting  a  system  of  money  rents 
for  a  system  of  labour  services,  destroyed  villein  tenure,  went  a 
long  way  to  render  villein  status  a  mischievous  survival. 

We  have  seen  that  the  Black  Death,  by  raising  the  value  of 
labour,  increased,  and  in  many  cases  created,  the  temptation  to 
desert  the  land  and  take  service  as  a  hired  labourer.^  We  have 
seen,  too,  that  the  Statutes  of  Labourers  endeavoured  to  fix  the 
price  of  labour  at  the  older  rates.  ^  The  lords  naturally  had  re- 
course to  the  powers  which  the  law  gave  them  over  their  villeins ; 
and  the  legislature  strengthened  their  powers.  We  have  seen 
that  in  1350^  it  was  enacted  that  the  purchase  of  the  writ  de 
libertate  probanda  should  not  prevent  the  lord  from  seizing  his 
fugitive  villein.  A  statute  of  1377,^  directed  against  confederacies 
of  the  villeins  who  went  about  to  prove  their  freedom,  enacted 
that  special  commissions  should  be  issued  to  try  such  cases,  and 
that  those  arrested  should  not  be  admitted  to  bail  or  mainprize. 
A  statute  of  1384^  enacted  that  a  plea  put  in  by  a  lord  to  an 
action  by  a  villein  should  not  be  construed  as  a  manumission  of 
the  villein.  But  just  as  legislation  was  powerless  to  stop  the 
economic  and  social  change,  so  it  was  powerless  to  preserve  a 
status  which  had  been  moulded  to  fit  the  older  agricultural  order. 
We  have  seen  that  the  tide  was  setting  strong  in  favour  of  the 

1  Above  202-203.  2  Above  203-204.  ^Vol,  ii  459-464. 

4  25  Edward  III.  st.  5  c.  18.  ^  ^  Richard  II.  c.  6. 

89  Richard  II.  c.  2;  for  petitions  recounting  the  grievances  of  the  lords  and 
asking  for  further  legislation  see  R.P.  iii  294,  296  (15  Rich.  II.  nos.  39  and  5),  448 
(I  Hy.  IV.  no.  6). 


THE  VILLEIN  501 

system  of  money  rents.  It  was  setting  equally  strongly  in  favour  of 
the  free  labourer.  The  Statutes  of  Labourers  introduced  the  claims 
of  a  third  party  between  the  relation  of  lord  and  villein ;  ^  and 
though  eventually  the  courts  decided  that  the  claims  of  the  lord 
must  prevail  ^  if  the  lord  needed  his  villein,  the  lords  in  most  cases 
found  that  it  paid  better  to  lease  their  land  than  to  fight  doubtful 
actions  to  get  unwilling  labour.^  The  court  was  of  opinion  in 
Henry  VI I. 's  reign  that  a  lease  for  years  to  a  villein  operated,  like 
a  feoffment  of  a  freehold  interest,  as  an  enfranchisement ;  and  this 
opinion  must  have  freed  very  many.^  Moreover,  the  greater 
fluidity  of  labour,  which  the  rise  of  manufacturing  industries  and 
the  growth  of  other  pursuits  ensured,  must  have  encouraged  with- 
drawal from  the  manor  and  thus  made  it  difficult  in  many  cases 
to  prove  villein  status.^  For  all  these  reasons  villeinage  tended 
in  the  majority  of  cases  to  pass  away  almost  silently;  and 
many  lords,  when  the  position  of  their  tenants  as  copyholders, 
lessees  for  years,  or  tenants  at  will  had  become  fixed,  accepted  the 
situation,  and  rightly  thought  it  unprofitable  to  imperil  the  peace 
of  their  "  little  commonwealth  "  by  insisting  upon  doubtful  claims 
which  would  be  certain  to  provoke  ill-feeling.^ 

But  though  these  social  and  economic  changes  must  have 
operated  to  reduce  the  importance  of  the  status,  they  could  not 
abolish  it.  It  still  survived  in  a  decadent  condition  all  through 
the  Tudor  period ;  and  the  very  fact  that  it  thus  survived  in  a 
decadent  condition  probably  made  the  lot  of  the  surviving  villeins 
the  harder.  They  could  be  taunted  with  their  servile  con- 
dition by  more  fortunate  neighbours  whose  origin  was  similar  to 

^  As  to  this  see  Royal  Hist.  Soc.  Tr.  xvii  254,  255.  Mr.  Savine  says,  "  Professor 
Petrushevsky  shows  very  well  that  the  Edwardian  statutes  struck  a  very  heavy 
blow  at  the  whole  fabric  of  the  manorial  system.  ...  The  agents  of  the  king  and 
of  the  common  law,  the  justices  of  assize  and  the  justices  of  peace,  entered  into  the 
sacred  precinct  of  the  manor  in  order  to  control  the  relations  between  the  lord  and 
his  villeins.  Though  perfectly  hostile  to  liberal  tendencies,  the  labour  legislation 
in  the  long  run  certainly  assisted  to  loosen  the  dependence  of  the  bondman  on  his 
lord.  The  man  of  manorial  custom  to  a  certain  extent  changes  into  a  man  of 
common  law;  "  for  early  cases  upon  the  conflicting  interests  of  lords  and  hirer  see 
Y.BB.  40  Ed.  III.  Mich.  pi.  16;  50  Ed.  III.  Mich.  pi.  2. 

2Y.BB.  22  Hy.  VI.  Mich.  pi.  49  (p.  32);  27  Hy.  VI.  Mich.  pi.  15. 

'Above  205. 

^  Y.B.  II  Hy.  VII.  Hil.  pi.  6,  Hussey  said,  "  Si  la  seignior  a  luy  fait  lease  pur 
terme  d'ans  cest  enfranchisement,  pour  ce  que  il  prend  interest  in  la  terre  vers  le 
seignior." 

5  Economic  Development  of  a  Norfolk  Manor  96,  "  Neither  the  Forncett  nor 
the  Moulton  rolls  show  continuity  in  the  servile  population  after  1350.  The  change 
comes  slowly,  but  gradually  the  old  names  disappear.  In  Forncett  by  1556  only 
three  bond  families  were  left. 

^  See  the  letter  of  Sir  Thomas  Denys  to  the  court  of  Requests  in  favour  of  the 
tenants  in  the  case  of  Foreacre  and  Person,  Customary  tenants  of  Bradford  (Somerset) 
V.  Frauncys,  Select  Cases  in  the  Court  of  Requests  (S.S.)  at  p.  122  ;  and  cp.  D'Ewes' 
address  to  the  tenants  of  his  manor  of  Laverham  in  163I  on  his  accession  to  the 
property,  D'Ewes,  Autobiography  ii  32  seqq. 


502  STATUS 

their  own.^  A  vStar  Chamber  case  of  the  year  i  500,^  which  tells 
us  of  the  manumission  of  the  plaintiff's  grandfather  by  the  abbot 
of  Malmesbury,  lets  us  see  that  the  villein  of  the  fifteenth  century 
was  beginning  to  feel  his  position.  John  Newman,  husbandman, 
of  the  age  of  seventy-five  years,  deposed  that  Thomas  Carter,  his 
master,  ''  was  very  desirous  to  be  free  and  to  be  manumised,  howbe- 
it  that  he  was  very  aged  and  had  not  many  yeres  to  lyve,  yet 
natheleas  he  had  greate  mynd  that  his  heires  and  blode  aftre  him 
might  be  free,  and  that  he  might  be  free  or  he  died,  and  if  he 
might  bring  that  aboute  it  wold  be  more  joiful  to  him  than  any 
worlelie  goode."  He  tells  us  how  he  went  to  the  abbey  with  his 
neighbours,  and  how  the  money  to  be  paid  for  manumission  (;^io) 
•'  was  paid  and  told  opinlie  upo  the  boorde  in  the  hall  of  thabbay," 
and  how  he  heard  the  deed  of  manumission  "  red  opinlie  in  the 
hall,"  and  saw  it  sealed  with  the  abbey  seal,  and  delivered  to  the 
said  Thomas ;  he  then  tells  us  how,  when  the  ceremony  was  over, 
''They  that  were  the  said  Thomas  Carters  frindes  went  forth  of 
thabbay  into  the  town  of  Malmesberie  and  there  thay  yete  a  cople 
of  Capons  .  .  .  and  that  doone  the  said  Thomas  Carter  and  all 
his  Neighburs  rode  home  to  thair  houses  and  on  the  sonday 
folowyng,  at  the  parsons  hous  of  Newnton,  whos  name  was  Sir 
Hugh,  a  northern  man,  in  presence  of  the  substaunce  of  the  parissh, 
there  then  for  this  cause  assembled  at  the  desire  of  the  said 
Thomas  Carter,  the  said  dede  was  opinlie  red  and  declared  to 
the  understanding  of  all  thaim  that  were  there  bi,  the  same  Sir 
Hugh  and  the  people  there  enjoyed  and  were  glad  that  the  said 
Thomas  was  manumysed  he  and  his  heires."  ^ 

The  reasons  why  the  life  of  this  status  was  prolonged  were 
chiefly  two  :  (i)  It  could  be  made  use  of  for  purposes  of  oppression 
and  chicane ;  (2)  It  might  in  isolated  cases  be  pecuniarily  very 
valuable  to  the  lord. 

(i)  The  existence  of  the  status  of  villeinage  was  a  valuable 
weapon  in  the  hands  of  the  overmighty  subject.  Under  cover  of 
a  plea  of  villeinage  an  easy  means  was  provided  for  the  defeat  or 
delay  of  creditors.  We  have  seen  that  up  till  the  year  1 363  a  plea 
that  the  defendant  was  a  villein  in  some  cases  stopped  the  action 

^  Savine,  Royal  Hist.  Soc.  Tr.  xvii  267,  268,  cites  a  petition  from  one  Shapwke, 
tenant  of  the  duchy  of  Lancaster,  asking  the  queen  to  manumit  him  because  froward 
people  object  to  the  name  of  bondman,  and  nobody  desires  to  marry  his  children ; 
as  Mr.  Savine  says,  *'  It  was  natural  that  Norfolk  bondmen  persuaded  Ket  to  insert 
the  demand  of  their  emancipation  in  the  articles  of  1549 ;  that  so  many  bondmen 
applied  to  Queen  Elizabeth  for  manumission;  that  even  more  bondmen  tried  to 
conceal  their  servile  origin  and  evaded  the  processes  of  the  inquisitive  surveyors." 

2  Select  Cases  in  the  Court  of  Star  Chamber  (S.S.)  118. 

3  As  Leadam  remarks,  Select  Cases  in  the  Court  of  Star  Chamber  (S.S.) 
cxxiv  n.  9,  provision  for  the  publication  of  enfranchisement  was  made  as  early  as 
the  Laws  of  Henry  1.  78.  i. 


THE  VILLEIN  508 

altogether.^  The  statutes  of  Richard  11'.  s  reign,  which  strengthened 
the  hands  of  the  lords,  opened  the  door  to  further  abuses  of  a  similar 
character.  A  petition  of  1402  tells  us  that  under  cover  of  the 
statute  of  1384  debtors  when  sued  plead  that  the  plaintiff  is  their 
villein ;  that  this  plea  is  enrolled,  and  sometimes  leads  to  loss  of 
liberty.^  Still  more  could  be  done  under  cover  of  a  claim  of 
villeinage.  Under  cover  of  such  a  claim  a  powerful  lord  could  be 
guilty  of  false  imprisonment  and  of  all  kinds  of  extortion.  A 
petition  of  1404  tells  us  that  the  statute  of  1377  is  being  abused. 
Good  and  honest  burgesses  and  free  tenants  are  imprisoned  till 
they  make  fine  and  ransom  or  consent  to  hold  their  lands  in 
villeinage.^  In  a  petition  from  the  second  decade  of  the  fifteenth 
century  it  is  alleged  that  Thomas  Saintquyntyn,  esquire  of  the 
county  of  York,  falsely  claimed  that  John  Bigge,  a  man  of  some 
property,  was  his  villein ;  "  and  he  died  because  of  that  slander  as 
the  common  parlance  was,"  whereupon  the  said  Thomas  seized  his 
property  wrongfully  and  with  force  and  arms.^  From  the  year 
1447  we  have  the  tragic  history  of  John  Whitehorne,^  a  gentleman 
of  property  in  the  county  of  Wiltshire.  Humphrey,  Duke  of 
Gloucester,  captured  him  under  the  pretence  that  he  was  his  villein, 
and  imprisoned  him  in  a  castle  in  Wales  belonging  to  the  Earl  of 
Pembroke.  There  he  was  detained  upwards  of  seven  years  in  a 
dark  dungeon,  and  so  rigorous  was  his  imprisonment  that  when  he 
regained  his  liberty  and  his  property  his  health  was  broken  and  he 
was  totally  blind.  Against  lawlessness  of  this  character  the  Tudor 
sovereigns  struggled  hard ;  and  it  is  quite  clear  that  the  struggle 
taxed  even  their  strength.  Fitzherbeit  tells  us,  in  his  book  on 
surveying,^  that  "there  be  many  freemen  taken  as  bondemen,  and 
their  landes  and  goodes  taken  fro  them,  so  that  they  shall  nat  be 
able  to  sue  for  remedy,  to  prove  themselfe  fre  of  blode.  And  that 
is  moste  commonly  where  the  freemen  haue  the  same  name  as  the 
bondmen  haue,  or  that  his  auncesters,  of  whome  he  is  comen,  was 
manumysed  before  his  byrthe."  That  Fitzherbert  was  not  draw- 
ing upon  his  imagination  is  made  quite  clear  from  cases  which  came 

^  Above  495  n.  5. 

2R.P.  iii  499  (4  Hy.  IV.  no.  50),  "Queux  defendantz  en  Court  respoignent  en 
chief  a  Taction  de  ditz  pleintifs ;  en  primies  de  lour  malice  fesant  protestation  que 
les  pleintifs  soient  lour  Villeins,  quelle  protestation  ensi  demurant  de  record  serroit 
mauveys  ensample  et  leger  en  temps  a  venir  turneroit  en  perpetuell  disheritance  de 
tiels  gentz  de  frank  condicion." 

8R.P.  iii  556  (6  Hy.  IV.  no.  55) ;  we  may  note  that  an  enemy  of  the  Paston 
family  circulated  a  report  that  they  were  of  villein  blood,  Paston  Letters  (ed.  1904) 
Introd.  i  26-30. 

*  Select  Cases  in  Chancery  (S.S.)  iio-iii. 

^R.P.  V  448,  449 — Whitehorne  was  a  gentleman  of  property;  there  were  taken 
from  him  60  messuages,  6  tofts,  i  dovecot,  600  acres  of  land,  30  acres  of  meadow, 
6  acres  of  pasture,  6s.  8d.  worth  of  rent,  besides  goods  and  chattels ;  for  other  cases 
see  Select  Cases  in  Chancery  (S.S.)  So- 81,  151-153,  154-155. 

«Chap.  13. 


504  STATUS 

before  the  council,  the  Star  Chamber,  and  the  court  of  Requests. 
Carter  v.  the  Abbot  of  Mabnesbury  of  the  year  i  500  is  a  case  of 
this  character.^  In  the  case  of  Netheway  v.  George^  which  came 
before  the  court  of  Requests  in  1 534,  the  plaintiff  sold  the  defendant 
an  ox.  When  he  asked  for  the  price  the  defendant,  *'in  moost 
ragyouse  maner,"  answered,  '*  Thou  schalt  have  noo  money  of  me 
ffor  that  oxe,  butt  swerynge  grete  and  detestable  othis  that  he  wolde 
have  your  sayd  humble  subjett  his  goodes  ffor  that  he  toke  hym 
as  his  bondman,  and  that  he  would  sease  his  londes  that  he  hyld 
of  other  men  and  kepe  them  dewerynge  his  lyfe  and  that  he  would 
ffeche  him  att  an  horse  tayle  and  make  hym  to  turn  a  broche  in 
his  kechyn."  We  find  similar  complaints  against  the  Earl  of  Bath 
in  two  cases  which  came  before  the  court  of  Requests  in  1 540  and 
1551.^  In  the  first  case  the  earl  had  seized  goods  of  the  plaintiff 
to  the  value  of  ;6^400  upon  the  pretext  that  he  was  his  bondman, 
and  it  was  only  after  three  writs  of  privy  seal  that  the  earl  made 
restoration.  In  the  second  case  he  seized  his  horses  and  cattle 
upon  the  same  pretext.  But  perhaps  the  most  striking  of  all  these 
cases  is  one  which  came  before  the  council  in  1 586.^  In  that  year 
the  council  had  before  them  a  complaint  by  the  inhabitants  of  the 
manor  of  Thornbury  in  Gloucestershire  of  the  conduct  of  Lord 
Stafford,  who  claimed  them  as  his  villeins  regardant  to  that  manor. 
On  June  the  19th  the  council  addressed  a  letter  to  Lord  Stafford, 
from  which  it  appears  that  he  had  attempted  to  seize  no  less  persons 
than  R.  Cole,  the  Mayor  of  Bristol,  and  Thomas,  his  brother.^ 

Such  cases  as  these  go  far  to  explain  why  the  courts  had  at  all 
periods  favoured  liberty.  The  parliamentary  petitions,  and  cases 
like  those  of  Whitehorne,  show  us  that,  as  soon  as  Parliament  made 
it  easier  to  prove  villein  status,  the  power  to  do  so  was  used  to 
cover  all  manner  of  fraud  and  oppression.     We  may  be  sure  that 

1  Select  Cases  in  the  Court  of  Star  Chamber  (S.S.)  118. 

2  Select  Cases  in  the  Court  of  Requests  (S.S.)  43. 

8  Ibid  48,  54.  The  earl's  defence  seems  to  be  based  on  the  view  that  the  ancestor 
who  had  enfranchised  was  only  tenant  in  tail  and  could  not  enfranchise  for  a  longer 
period  than  his  life,  ibid  Ixxii ;  the  law  is  thus  stated  in  Y.B.  13  Ed.  IV.  Mich.  pi.  4 ; 
and  this  is  consistent  with  the  reasons  given  by  the  court  in  Y.B.  2  Hy.  VI.  Trin.' 
pi.  I,  for  its  decision,  that  manumission  of  villeins  by  tenant  in  dower  was  not 
waste ;  but  it  appears  from  Y.B.  33  Hy.  VI.  Pasch.  pi.  3,  cited  by  Leadam,  that 
one  judge  at  least  thought  that  the  rule  was  once  manumitted  always  free.  For 
what  may  be  a  similar  case  see  Plumpton  Correspondence  (C.S.)  55. 

^  Savine,  Royal  Hist.  Soc.  Tr.  xvii  261-263,  citing  Dasent  xiv  48, 100,  153  ;  xv  69, 
303,  304- 

^  The  council  ordered  Lord  Stafford  to  forbear  to  molest  R.  and  Th.  Cole  under 
pretext  that  they  are  his  bondmen,  "  seinge  they  offer  to  aunswer  his  Lordship  in 
lawe,  and  that  their  Lordships  thincke  it  requisite  that  a  principall  officer  of  such  a 
place  and  his  brother,  having  ben  both  themselves  and  their  auncestors  heretofore 
reputed  freemen,  should  not  be  so  hardlie  dealt  upon  anie  suposicion  ;  "  for  similar 
acts  of  the  Duke  of  Buckingham  in  Henry  VIII. 's  reign  see  L.Q.R.  ix  364  n.  i,  and 
Royal  Hist.  Soc.  Tr.  vi  187-191. 


THE  VILLEIN  505 

the  abuses  which  cropped  up  under  the  new  feudalism  of  the  fifteenth 
century  would  have  been  known  in  the  thirteenth  century  if  the 
vigilance  of  the  courts  had  been  relaxed.  When  the  weakness  of 
the  crown  gave  to  a  turbulent  nobility  the  powers  of  turning  to 
feudal  uses  all  the  powers  of  the  state  and  all  the  technicalities  of 
the  law,  the  law  relating  to  villein  status  offered  many  opportunities ; 
and  it  was  only  by  unremitting  diligence  that  even  the  powerful 
jurisdictions  of  the  council,  the  Chancery,  and  the  court  of  Requests 
succeeded  in  checking  these  abuses.  If  in  the  Tudor  period  these 
courts  strained  the  law  in  the  interests  of  the  humbler  classes,^  we 
must  admit  that  they  strained  it  in  the  interests  of  honesty,  of  liberty, 
and  of  orderly  government. 

(2)  The  continuance  of  villein  status  might  in  isolated  cases  be 
very  valuable  to  the  lord.  The  children  of  two  villeins  were  also 
villeins.  In  the  old  days  such  persons  would  either  have  occupied 
their  father's  place  in  the  manor,  or  they  would  have  left  the  manor 
to  follow  similar  pursuits,  paying  a  small  sum  as  chevagium  for 
permission  to  reside  elsewhere.  Occasionally  we  hear  of  villeins 
by  birth  rising  to  high  place.^  Probably  such  cases  were  rare ; 
but  it  is  clear  that  if  some  record  of  them  were  preserved  the  lord 
would  have  a  profitable  source  of  income.  The  case  of  Simon  of 
Paris,^  alderman  and  former  sheriff  of  the  city  of  London,  may  show 
us  that  as  early  as  1 308  the  lords  were  ready  to  make  their  profit 
out  of  such  accidents  of  fortune.  Simon  was  seized  and  imprisoned 
because  he  refused  the  office  of  reeve,  and  when  he  sued  for  damages 
he  was  met  by  the  plea  of  villeinage.  He  proved  that  he  was  free, 
and  eventually  recovered  heavy  damages.  Such  a  case  was  rare 
in  the  fourteenth  century.  It  was  by  no  means  rare  in  the  fifteenth 
and  sixteenth  centuries.  The  villein  might  either  leave  the  land 
and  pursue  some  other  career,  or  he  might  stay  on  the  land.  In 
either  case  there  was  a  chance  for  a  lord  who  kept  a  careful  record 
of  the  pedigrees  of  his  villeins. 

If  the  villein  left  the  land  there  were  many  careers  open  to  him ; 
and,  therefore,  just  because  the  state  of  society  to  which  villeinage 
was  more  or  less  natural  was  decaying,  just  because  a  villein  by 
blood  might  rise,  the  lord's  interest  might  become  very  valuable. 
Speaking  of  a  survey  of  villeins  regardant  to  the  manor  of  Long 
Bennington,  Lincolnshire,  made  in  i  570,  Mr.  Savine  says,^  "  Many 
of  these  villeins  had  lost  almost  all  vital  connection  with  the  manor 

^Leadam  considers,  Select  Cases  in  the  Court  of  Requests  (S.S.)  Iv,  that  this 
opinion  expressed  by  Froude,  History  of  England  ii  449,  is  perfectly  correct. 

2  P.  and  M.  i  415,  "  It  was  said  that  John's  famous  captain,  Gerard  de  Athie, 
whose  name  is  handed  down  to  infamy  by  Magna  Carta,  was  of  servile  birth  ;  in 
1313  the  Bishop  of  Durham  manumitted  a  scholar  of  Merton^ho  was  already  a 
Master." 

^Y.B.  I,  2  Ed.  II.  (S.S.)  11-13.  4  Royal  Hist.  Soc.  Tr.  xvii  275. 


506  STATUS 

and  the  village  community.  It  is  strange  that  three  of  them  were 
curates  in  neighbouring  counties,  and  the  survey,  in  full  agreement 
with  legal  theory,  makes  no  difference  between  these  parsons  and 
the  other  bondmen.  The  jurors  had  lost  all  trace  of  one  bondman. 
They  heard  that  he  was  villein  regardant  to  the  manor  and  that 
he  had  died  of  late,  but  what  goods  he  left  they  did  not  know. 
The  jurors  could  also  say  nothing  about  another  deceased  bondman, 
but  a  speculative  search  was  rewarded  by  finding  that  he  '  dyed 
rich  by  marying  of  a  wydoo  sister  of  Isacke  of  London.'  "  ^ 

If  the  villein  remained  on  the  land  he  might  acquire  other 
estates  and  die  rich.^  We  have  seen  that  the  rise  of  prices  in 
the  sixteenth  century  caused  the  rents  for  which  copyholders  had 
commuted  their  labour  services  to  be  much  under  the  value  of  the 
land.^  The  same  causes  which  gave  the  villein  a  valuable  tenant 
right  gave  the  lord  an  additional  inducement  to  insist  where  pos- 
sible upon  the  incidents  of  villein  status.  If  the  tenant  was  rich 
he  would  generally  be  willing  to  pay  a  large  sum  to  enfranchise 
himself;  and  if  he  was  not  willing  the  lord  might  use  his  powers 
to  compel  him  to  do  so.  There  is  a  case  of  this  kind  as  early  as 
Henry  V.'s  reign  ;  *  and,  as  the  wealth  of  this  class  increased,  these 
cases  were  multiplied.  In  I  556  a  tenant  of  the  manor  of  Forncett 
probably  paid  ;^I20  for  his  manumission.^  Mr.  Savine  sa\  s  that 
''the  amount  of  these  exactions  for  enfranchisement  was  settled  in 
the  middle  of  the  sixteenth  century  ...  in  the  practice  of  the 
Augmentation  Ofifice.  .  .  .  The  bondmen  manumitted  must  pay 
.  .  .  a  third  part  of  their  lands  and  goods."  ^  It  is  for  this  reason 
that  we  have  in  the  books  of  the  Elizabethan  surveyors  some 
mention  of  the  value  of  the  villeins  as  if  they  were  an  asset  of  the 
manor ;  ^  and  it  is  for  the  same  reason  that  in  the  sixteenth  cen- 
tury the  crown  so  frequently  manumitted  the  villeins  on  its  lands. ^ 
"The  thing  was  done  so  openly,"  says  Mr.  Savine,^  "that  Eliza- 
bethan courtiers  could  receive  as  a  special  sign  of  favour  from  the 
sovereign  a  commission  to  enfranchise  a  definite  number  of  villein 

^  The  facts  in  Butler  v.  Crouch  (1568)  Dyer  266b  illustrate  the  same  point;  see 
also  the  case  of  the  brothers  Cole,  above  504 ;  and  the  case  of  the  Heynes  in  1435 
in  the  History  of  Castle  Combe  223,  225 ;  cp.  Tawney,  Agrarian  Problem  in  the 
Sixteenth  Century,  83-84. 

2  See  Economic  Development  of  a  Norfolk  Manor  88-95  for  accounts  of  the 
families  of  Bolitont,  Dosy,  and  Houlot,  cp.  Tavi^ney,  op.  cit.  72-7^. 

3  Above  212.  ^Y.B.  2  Hy.  V.  trin.  pi.  it. 
^Economic  Development  of  a  Norfolk  Manor  89,  90;  App.  XIII.  xci. 

^  Royal  Hist.  Soc.  Tr.  xvii  270. 

■^  See  ibid  241,  242  for  the  Surveyor's  Dialogue  by  Norden,  the  first  edition  of 
which  was  published  in  1607,  and  for  Norden's  survey  of  the  Forest  of  Pickering 
(1619-1621),  in  which  he  enquired  into  bondmen ;  we  may  note  that  in  the  tract  on 
Surveying  by  Clay,  published  1624,  there  is  no  such  mention  of  bondmen. 

8  For  an  illusti^tion  see  the  commissions  issued  by  Henry  VIII.  in  1544,  Letters 
and  Papers  xix  i  no.  278  (5)  (67). 

^  Royal  Hist.  Soc.  Tr.  xvii  270,  271. 


THE  VILLEIN  507 

families  on  the  crown  manors  ;  that  is  to  say,  they  were  enabled 
to  repair  their  fortunes  with  the  payments  for  enfranchisement." 
Thus  in  1575  Elizabeth  commissioned  Sir  Henry  Lee  to  manumit 
two  hundred  bondmen  on  the  estates  of  the  duchy  of  Lancaster. 
These  two  hundred  must  pay  the  price  fixed  by  Lee  ;  and,  in  de- 
fault, Lee  could  seize  their  lands,  together  with  all  lands  alienated 
by  them  since  I  568.^  These  powers  were  acted  on  ;  and  careful 
inventories  and  valuations  were  made  of  the  property  of  the  vil- 
leins in  order  that  the  proper  amount  for  manumission  might  be 
levied.  Sometimes  the  villeins  were  poor  and  nothing  could  be 
got  from  them.  They  were  not  manumitted.  Often,  as  we  have 
seen,  they  were  fairly  well  off,  and  then  manumission  was  forced 
upon  them.  Elizabeth's  action  reminds  us  on  a  small  scale  of  the 
manner  in  which  Caracal  la  extended  from  fiscal  motives  the  right 
of  Roman  citizenship  to  all  the  inhabitants  of  the  Empire.^ 

This  is  clearly  the  last  phase.  The  chief  profit  to  be  made 
from  villeins  is  a  profit  to  be  made  from  manumissions.  The 
country  was  settling  down  at  the  end  of  the  sixteenth  century. 
Both  villein  tenure  and  villein  status  were  obsolete.  Public  opinion 
was  shocked  at  the  continuance  of  such  an  institution  as  villein 
status.  The  doctor  in  The  Doctor  and  Student  had  grave  doubts 
as  to  its  righteousness.^  Fitzherbert  laments  its  continuance.*  Sir 
Thomas  Smith  allows  that  some  few  exist,  but  considers  that  they 
are  almost  all  extinct.^  Harrison  boldly  states  that  there  are  none 
in  England,  and  that  such  is  the  privilege  of  our  country  '*  by  the 
especial  grace  of  God  and  the  bounty  of  our  princes,  that  if  any 
come  hither  from  other  realms,  so  soon  as  they  set  foot  on  land 
they  become  as  free  in  condition  as  their  masters."^  Harrison's 
words  were  rather  prophetic  than  true.  There  was,  in  fact,  some 
danger  in  the  seventeenth  century  that,  under  cover  of  phrases 
about  the  custom  of  the  merchants,  the  law  would  recognize  a 
right  of  property  in  negro  slaves ;  '^  and  in  spite  of  a  decision  of 
Holt,  C.J.,  which  in  effect  bore  out  Harrison's  statement,^  the  law 

1  Royal  Hist.  Soc.  Tr.  xvii  270,  271. 

2  Girard,  Droit  Romain  11 1,  *' Antonin  Caracalla  donne  en  212  la  qualite  de 
citoyens  a  tous  les  habitants  de  Tempire  afin  de  leur  ^tendre  a  tous  I'impot  de  cinq 
pour  cent  existant  sur  la  succession  des  citoyens." 

^11.  chap.  18,  "  Methinketh  it  first  good  to  see  whether  it  may  stand  with  con- 
science that  one  man  may  claime  another  to  be  his  villein,  and  that  he  may  take 
from  him  his  lands  and  goods,  and  put  his  body  in  prison  if  he  will,  it  seemeth  hee 
loveth  not  his  neighbour  as  himselfe  that  doth  so  to  him." 

*  Surveyinge,  chap.  13  (the  first  edition  of  the  book  was  published  in  1523) ;  he 
says,  "  Howe  be  it  in  some  places  the  bondemen  contynue  as  yet,  the  wh'che  me 
semeth  is  the  greatest  inconvenience  that  now  is  suflFred  by  the  lawe." 

^  De  Repubiica  Bk.  iii  chap.  viii. 

^  Description  of  England,  cited  Savine,  Royal  Hist.  Soc.  Tr.  xvii  239. 

^  Butts  V.  Penny  {1677)  2  Lev.  201. 

8  Smith  V.  Brown  (1707)  2  Salk.  666. 


508  STATUS 

was  not  finally  so  laid  down  till  Lord  Mansfield's  decision  in 
Sominerseifs  Case  in  1771.^  The  decision  was  then  no  foregone 
conclusion.  The  slave  trade  was  a  well  established  and  a  lucra- 
tive business  in  which  many  had  an  interest ;  Yorke  and  Talbot, 
when  attorney  and  solicitor-general  had  given  an  opinion  against 
this  view  of  the  law;^  and  Yorke  had  adhered  to  this  opinion 
when  he  became  Lord  Chancellor,^  That  Lord  Mansfield  should 
refuse  to  follow  the  custom  of  the  merchants,  and  should  give  a 
decision  based  mainly  on  the  rules  of  the  mediaeval  common  law, 
no  doubt  surprised  many  of  his  contemporaries  as  much  as  an  op- 
posite decision  would  have  surprised  us. 

It  has  been  suggested  that  Sir  Thomas  Smith's  book  was 
written  in  France  with  the  patriotic  desire  of  proclaiming  the 
merits  of  English  institutions.^  But  probably  Smith's  book  told 
the  substantial  truth.  The  courts  were  putting  down  the  abuses 
rendered  possible  by  the  survivals  of  villein  status.  They  leaned 
more  strongly  than  ever  in  favour  of  liberty  ;  and  they  were  as- 
sisted by  Henry  VIlI.'s  statute  of  limitations,  which  restricted 
proceedings  upon  the  writ  de  nativo  habendo  to  a  period  of  sixty 
years.  ^  Landowners  valued  the  status  chiefly  for  what  they  could 
get  out  of  the  villeins  as  the  price  of  manumission ;  and  this,  as  I 
have  said,  accounts  for  the  references  to  it  in  treatises  on  the  law 
of  manorial  courts  of  the  sixteenth  century,  and  in  bailiffs'  surveys 
of  the  sixteenth  and  even  the  early  years  of  the  seventeenth  cen- 
turies. Those  worth  manumitting  were  manumitted — the  rest 
were  not  worth  considering. 

Villein  status,  then,  had  become  merely  a  survival  of  an  older 
social  and  economic  order  by  the  middle  of  the  fifteenth  century. 
Its  life  had  been  prolonged  to  the  end  of  the  sixteenth  century 
because  it  served  the  purposes  of  the  lawless,  and  because  it  some- 
times gave  to  lords  valuable  rights  over  persons  who  prospered 
either  on  the  land  or  in  some  of  the  other  pursuits  which  afforded 
careers  to  the  ambitious.  When  the  Tudor  dynasty  had  fulfilled 
its  mission  by  restoring  peace  and  good  government  to  the  country, 
when  lords  had  made  what  they  could  out  of  their  prosperous  vil- 
leins by  selling  charters  of  manumission,  this  status,  always  frowned 
upon  by  the  law,  after  a  long  and  dishonourable  old  age,  at  length 
died  a  natural  death.  The  law  of  villein  status  was  never  repealed. 
It  simply  fell  into  disuse  because  the  persons  to  whom  it  applied 
had  ceased  to  exist. *^ 

1 20  S.T.  I.  ^  Ibid  at  pp.  81-82. 

•^  Pearne  v.  Lisle  {1749)  Ambler  at  p.  76. 

^  Royal  Hist.  Soc.  Tr.  xvii  240.  See  Maitland's  Introd.  to  Alston's  ed.  for  the 
best  account  of  this  book;  it  will  be  described  in  Bk.  iv  Pt.  I.  c,  i. 

5  32  Henry  VIII.  c.  2  ;  Butler  v.  Crouch  (1568)  Dyer  266b,  283b. 

^This  is  clear  enough  from  the  case  of  Pigg  v.  Caley  (1618)  Noy  27,  the  last 
case  of  villein  status;   the  jury  found  a  verdict  for  the  villein;  and  Hubbard,  J.,  in 


THE  VILLEIN  509 

Note  on  the  terms  "Regardant"  and  ''In  gross"  as  applied  to 

villeins 

There  can  be  no  doubt  that  the  terms  '♦  regardant "  and  ♦*  in  gross  "  as  applied  to 
villeins  did  not,  as  has  been  sometimes  asserted,  indicate  any  difference  of  condition 
between  two  classes  of  villeins.  The  terms  are  terms  of  pleading  which  are  not 
peculiar  to  the  law  of  villein  status.  They  are  used  in  exactly  the  same  sense  in  the 
law  relating  to  such  incorporeal  rights  as  commons,  advowsons,  or  services.  Thus 
in  1310  (Y.B.  3,  4  Ed.  II.  (S.S.)  103-104)  it  was  said  that  services  of  homage,  fealty, 
and  ten  shillings  a  year  regardant  to  a  manor,  on  being  assigned  to  a  woman  for  her 
dower,  were  assigned  as  a  gross,  i.e.  the  right  to  collect  them  was  attached  to  the 
woman,  and  not  to  the  ownership  of  the  manor.  Similarly  a  man  might  claim  a 
villein,  a  right  of  common,  or  an  advowson  as  regardant  to  a  manor,  i.e.  attached  to 
a  manor,  of  which  he  was  the  owner  ;  or  he  might  claim  them  as  his  own  without 
reference  to  any  other  property  owned  by  himself  (Hallam,  Middle  Ages  iii  173  and 
note  xiv  ;  Vinogradoff,  Villeinage  48-58).  *•  If,"  said  Bromley,  C.J.,  "a  man  leases 
his  manor  for  life  or  years  except  his  villeins,  now  they  are  in  gross  and  not  re- 
gardant" (Plowden  104).  As  we  have  seen  (above  166)  there  were  two  modes 
of  claiming  such  rights  by  prescription,  according  as  they  were  rights  in  gross  or 
attached  to  other  property.  At  the  same  time  the  erroneous  opinion  that  these 
pleading  terms  as  applied  to  villein  status  indicated  a  difference  of  condition  is  an 
old  opinion.  It  seems  to  have  been  held  by  Sir  Thomas  Smith  in  the  sixteenth 
century  (see  extract  printed  by  Vinogradoff,  op.  cit.  49  n.  i)  and  was  not  doubted  even 
by  a  lawyer  like  Hargrave  in  Sommersett's  case.  But  at  the  date  of  that  case  (1771) 
the  law  as  to  villein  status  had  long  been  obsolete ;  and  we  do  not  find  that  lawyers 
like  Littleton  and  Coke,  who  lived  nearer  the  time  when  this  branch  of  the  law  was 
in  use,  fell  into  this  mistake  (Litt.  §§  175,  181,  182,  185;  Co.  Litt.  123b).  It  looks 
therefore  as  if  this  erroneous  opinion  did  not  originate  with  the  lawyers.  The  ques- 
tion is,  How  did  it  originate  ?  I  would  suggest  tentatively  that  the  following  con- 
siderations may  supply  some  sort  of  reason,  (i)  Differences  in  the  mode  in  which 
a  man  is  obliged  to  plead  his  title  to  a  thing  sometimes  give  rise  to  differences  in 
the  rules  of  law  relating  to  that  thing.  Thus  in  Y.B.  20  Ed.  III.  (R.S.)  ii  304-306, 
it  was  argued  that  though  a  monk  who  was  a  dead  person  in  law  could  not  claim  a 
villein  as  his  own,  i.e.  in  sjross,  he  could  claim  him  as  regardant  to  the  manor  of 
which  he  was  bailiff.  In  Y.B.  i  Hy.  IV.  Mich.  pi.  11  (cited  P.  and  M.  i  397  n.  i) 
a  nief  appeals  her  lord  of  the  death  of  her  husband ;  on  its  being  argued  that  con- 
viction of  the  lord  would  mean  the  enfranchisement  of  the  neif,  it  was  replied  that 
it  would  only  have  this  effect  if  she  were  a  villein  in  gross ;  for,  if  regardant  to  a 
manor,  the  manor  and  the  things  regardant  to  it  would  be  forfeit  to  the  crown. 
Again,  in  Y.B.  13  Ed.  IV.  Mich.  pi.  4  and  11,  there  is  an  inconclusive  debate  as  to 
whether  a  decision  in  favour  of  a  villein,  who  was  claimed  as  regardant  to  a  manor, 
was  an  estoppel  to  an  action  claiming  him  as  a  villein  in  gross ;  and  in  Y.B.  2  Hy. 
VI,  Trin.  pi.  i  there  was  an  attempt  to  say  that  though  a  woman  could  be  endowed 
of  villeins  regardant  she  could  not  be  endowed  of  villeins  in  gross.  In  a  few  small 
points,  therefore,  villeins  regardant  differed,  or  were  thought  to  differ,  from  villeins 
in  gross.  (2)  We  have  seen  that  some  villeins  stayed  on  the  manor  and  lived  lives 
similar  to  those  of  their  forefathers,  while  others  left  the  manor  for  other  pursuits 
(above  505-506).  We  have  seen,  too,  that  the  copyholders  who  lived  on  the  manor 
were  protected  in  respect  of  their  copyholds  (above  208-209).  There  is  some  evid- 
ence for  Leadam's  view  (L.Q.R.  ix  358-361)  that  this  protection  was  given  to  a 
copyholder  who  was  a  bondman  ;  so  that  if  a  lord's  copyholder  were  also  his  bond- 
man, the  lord's  rights  over  his  property,  other  than  his  copyhold,  were  greater  than 
over  his  copyhold.  But  a  villein  who  left  the  manor  vi'ould  not  be  a  copyholder. 
All  his  property  was,  in  legal  theory,  at  the  lord's  mercy.  I  would  suggest  that  in 
the  latter  part  of  the  Tudor  period,  when  villein  status  was  becoming  rare,  when  the 

giving  judgment  remarked,  "  If  a  man  has  not  seisin  of  a  villein  in  gross  within  sixty 
years  he  shall  be  barred  Ijy  32  Henry  VIII.  of  limitations  in  nativo  habendo,  for 
liberty  is  favoured.  But  yet  of  a  villein  regardant  the  seisin  of  the  manor  to  whom, 
etc.,  is  sufficient  seisin  of  the  villein  " — the  law  is  clearly  unchanged.  In  France  it 
continued  to  the  end  ;  in  1779  Louis  XVI.  freed  the  serfs  on  the  crown  lands,  but 
serfdom  still  remained  on  the  lands  of  the  nobility,  Esmein,  Histoire  du  droit  Fran- 
gais  (nth  ed.)  758;  and  the  grievances  of  the  serfs  had  no  small  share  in  causing 
the  Revolution,  above  211. 


510  STATUS 

law  relating  to  it  was  fading  into  oblivion,  the  terms  •'  regardant  to  a  manor  "  and 
"in  gross"  were  by  some  taken  to  apply  to  these  two  classes  of  villeins.  There 
were,  as  we  have  seen,  small  legal  differences  between  them,  arising  out  of  the 
method  by  which  they  were  claimed.  It  might  easily  be  supposed,  therefore,  by 
those  whose  knowledge  of  law  was  slight,  that  villeins  regardant  and  villeins  in  gross 
were  really  two  sorts  of  villeins ;  and  there  was  the  distinction  in  the  world  of  fact 
ready  to  hand  between  those  who  lived  on  the  manor  and  had  some  degree  of  pro- 
tection, and  those  who  lived  away  and  had  no  property  which  was  protected.  What 
was  easier  and  more  natural  than  to  apply  the  term  •'  regardant  to  a  manor"  to  the 
one  class,  and  the  term  *'  in  gross  "  to  the  other  ?  I  may  perhaps  add  that  this  was 
just  the  sort  of  confusion  which  was  likely  to  arise  upon  a  legal  subject  which  was 
ceasing  to  possess  much  practical  importance,  and  yet  had  both  a  certain  amount  of 
antiquarian  interest,  and  a  certain  amount  of  attraction  for  the  literary. 

§  4.  The  Infant 

I  shall  consider  the  position  of  the  infant  in  the  mediaeval 
common  law  under  the  three  following  heads:  (i)  The  age  of 
majority,  (2)  guardianship,  and  (3)  the  capacity  of  the  infant. 

(i)  The  age  of  majority. 

We  have  seen  that  in  Anglo-Saxon  days  the  law  recognized 
that  there  was  a  definite  age  of  majority  both  for  males  and  for 
females,  but  that  there  was  no  fixed  rule  as  to  what  that  age  was.^ 
In  the  eleventh  and  twelfth  centuries  there  was  a  similar  un- 
certainty. The  tendency  seems  to  have  been  to  fix  different 
ages  for  different  classes  of  society.  The  knight  came  of  age  at 
twenty-one  ;  the  socman's  heir  when  he  was  fifteen  ;  the  burgess's 
son  when  he  was  of  age  to  count  pence,  measure  cloth,  and  con- 
duct his  father's  business.^  But  gradually  the  rule  of  the  knight 
came  to  be  the  general  rule  for  all  classes  of  society.  Twenty- 
one  comes  to  be  the  age  of  majority  for  ordinary  purposes.^  The 
other  rules  lingered  on  as  customs  only  ;  and  they  were  customs 
which  did  not  meet  with  much  favour  at  the  hands  of  the  royal 
justices.*  The  rule  that  the  tenant  holding  g;  velkind  land  may 
make  a  feoffment  at  fifteen  is  perhaps  the  one  permanent  sur- 
vival.^ We  have,  as  Maitland  points  out,  another  instance  of 
the  process  by  which  the  law  for  the  higher  classes  of  society 
became  the  law  for  all.^  We  have,  too,  another  example  of  the 
manner  in  which  the  rules  of  the  land  law  affected  all  othfer 
branches  of  the  law.  Twenty-one,  then,  becomes  the  age  of 
majority  for  most  purposes  ;  but  other  ages  were  recognized  as 
forming  less  important  epochs.  Coke  gives  us  some  account  of 
the  seven  ages  of  a  woman  "  for  several  purposes  appointed  to  her 
by  law."  ^     The  rules  as  to  age  at  which  a  person  had  capacity  to 

1  Vol.  ii  98.  2  Bracton  flF.  86,  86b. 

3  P.  and  M.  ii  436,  437. 

4  Y.BB.  12,  13  Ed.  III.  (R.S.)  236 ;  18,  19  Ed.  III.  (R.S.)  328. 
"Above  261.  ^  P.  and  M.  ii  436. 

'Co.  Litt.  78b,  *' Seven  ye^ires  for  the  lord  to  have  aid  pur  file  marier ;  nine 
yeares  to  deserve  dower ;   twelve  yeares   to  consent  to  marriage ;   until   fourteen 


THE  INFANT  511 

make  a  will  of  chattels,  being  a  matter  for  the  canon  law,  followed 
the  Roman  rule  of  fourteen  for  a  male  and  twelve  for  a  female ;  ^ 
while  the  age  at  which  a  person  could  act  as  executor  was  fixed 
by  the  canon  law  at  seventeen.^  The  only  really  important 
modification  of  the  general  rule  known  to  the  common  law  is 
found  in  the  rules  as  to  criminal  and  delictual  liability.  To  be  guilty 
of  felony  a  child  must,  as  we  have  seen,  be  doli  cap  ax ;  and  this 
he  may  be  if  he  is  over  the  age  of  seven ;  ^  while  it  would  almost 
appear  that  a  child  of  any  age  might  be  liable  for  a  trespass  which 
he  had  voluntarily  committed.*  This  is  quite  in  accordance  with 
the  theory  of  delictual  liability  which  was  prevalent  during  this 
period.^  It  naturally  tended  to  become  modified  in  later  law  with 
the  growth  of  the  idea  that  such  liability  is  founded,  not  on  an 
unlawful  act  simply,  but  upon  such  an  act  done  intentionally  or 
negligently.^ 

(2)  Guardianship. 

Though  the  common  law  had,  by  the  end  of  this  period,  suc- 
ceeded in  fixing  upon  one  definite  age  of  majority  for  most 
purposes,  it  had  got  no  general  rules  as  to  the  persons  to  be 
appointed  the  guardians  of  an  infant,  or  as  to  the  rights,  powers, 
or  responsibilities  involved  in  guardianship.  It  knew  only  a  variety 
of  different  guardians  for  various  different  cases.  The  father  is 
the  natural  guardian  of  his  child,  and  had  a  remedy  if  any  one 
attempted  to  abduct  him.^  If  the  father  was  dead  the  question 
who  was  the  child's  guardian  depended  upon  the  nature  of  the 
property  which  he  inherited.     There  was  the  guardian  in  chivalry 

yeares  to  be  in  ward ;  fourteen  yeares  to  be  out  of  ward  if  she  attained  thereunto 
in  the  life  of  her  ancestor ;  sixteen  yeares  for  to  tender  her  marriage  if  she  were 
under  the  age  of  fourteen  at  the  death  of  her  ancestor;  and  one-and-twenty  yeares 
to  alienate  her  lands,  goods,  and  chattels;"  and  similarly  the  man  "for  several 
purposes  has  divers  ages  assigned  unto  him  " — mostly  connected  with  the  incidents 
of  tenure. 

1  Below  545. 

2  Piggot's  Case  (1598)  5  Co.  Rep.  29 ;  Prince's  Case  (1600)  ibid  29b. 

^  Above  372  ;  for  the  old  view  that  the  infant  was  not  in  the  law  till  twelve, 
because  not  compelled  till  that  age  to  take  the  oath  of  allegiance  in  the  leet,  see 
Hale,  P.C.  i  23,  24;  and  cp.  Y.B.  30,  31  Ed.  I.  (R.S.)  529,  where  this  view  was 
acted  upon. 

*Y.B.  35  Hy.  VI.  Mich.  pi.  18,  above  376  n.  i. 

5  Above  375-377. 

"  We  may  note  that  in  the  Y.B.  cited  above  n.  4  Moile,  J.,  said,  "  Jeo  croy  que 
il  ne  scait  ascun  malice;  "  for  the  later  law^ee  Bk.  iv  Pt.  II.  c.  5  §  6;  and  cp. 
Pollock's  Torts  (5th  ed.)  50,  51. 

'  P.  and  M.  ii  442 ;  "  Al  comone  ley  homme  avera  accion  de  son  enfaunt  ou 
servaunt  pris  hors  de  sa  garde ;  "  Y.B.  12  Rich.  II.  15 />gr  Thirning,  J. ;  RatclifF's 
Case  (1592)  3  Co.  Rep.  37,  39b,  "The  father  has  the  guardianship  of  his  son  Jure 
natures,  and  this  is  inseparable  and  cannot  be  waived.  .  .  .  The  father  during  his 
life  shall  have  the  marriage  of  his  son  .  .  .  and  not  the  lord ;  "  he  therefore  has  the 
writs  of  trespass  and  ravishment  of  ward  if  his  son  be  abducted  (ibid  38b) ;  even  in 
the  case  of  the  father's  right  of  wardship  there  is  some  connotation  of  profit  and 
privilege. 


512  STATUS 

and  the  guardian  in  socage  for  the  heir  who  inherited  land  held  by- 
knight  service  or  socage  tenure.^  An  infant  heir  might  well  have 
several  different  guardians  in  respect  of  several  different  properties 
which  he  had  inherited. 

In  the  boroughs  the  borough  customs  often  made  some  provi- 
sion for  the  infant  who  was  an  orphan — the  London  Court  of 
Orphans  lasted  on  till  late  in  the  seventeenth  century  as  an  effective 
institution ;  ^  and  there  seems  to  have  been  some  similar  provision 
in  the  province  of  York.^  Perhaps,  as  Maitland  says,  '*  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."^  But  for  the  case  of  the  ordinary  orphan,  who  was  not 
an  heir  to  land,  the  common  law  seems  to  have  made  no  general 
rules.  When  legal  proceedings  were  necessary  the  court  would 
appoint  a  guardian  ad  litem,  who  Vas  often  one  of  its  own  officials.^ 
Yox  the  most  part,  however,  the  law  did  not  interfere  unless  there 
was  litigation  in  process  for  which  a  guardian  was  needed.  It 
may  be  that  here  as  elsewhere  the  king  was  considered  to  be  the 
guardian  of  the  orphan ;  ^  but  in  the  Middle  Ages  and  long  after 
he  took  no  steps  to  assume  the  responsibilities  of  that  position 
unless  the  infant  had  property,  or  unless  he  was  involved  in  litigation. 

The  truth  is  that  in  the  Middle  Ages  the  law  of  guardianship 
was  defective  and  inadequate  because  it  halted  between  two 
opinions — the  older  opinion  that  guardianship  was  a  valuable  right 
which  existed  for  the  benefit  of  the  guardian,^  and  the  newer 
opinion  that  guardianship  involved  responsibilities  to  the  infant. 
The  perdurance  of  the  feudal  right  of  wardship  gave  an  un- 
naturally long  life  to  the  older  opinion.  As  we  have  seen,  there 
is  some  connotation  of  profit  even  in  the  case  of  the  father's  rights.^ 
But  we  can  see  the  influence  of  the  newer  opinion  in  the  statutes 
which  compelled  the  guardian  in  socage  to  account.^  Owing, 
however,  to  the  deficiencies  of  the  action  of  account,^^  the  common 
law  had  no  machinery  sufficient  to  give  effect  to  the  newer  opinion 
by  compelling  the  guardian  to  realize  his  responsibilities  ;  and  it 

1  Above  61-66.  2  Above  273  n.  2. 

^Swinbum,  Testaments  loi-iog. 

^  P.  and  M.  ii  442 ;  below  556  ;  as  Miss  Bateson  notes,  Borough  Customs 
(S.S.)  ii  cxxxiii,  it  v/as  in  the  Boroughs,  where  ecclesiastical  jurisdiction  over  probate, 
etc.,  was  excluded,  that  a  law  of  guardianship  developed.  But  it  was  apparently 
known  in  the  province  of  York  also ;  I  should  therefore  be  rather  inclined  to 
connect  the  phenomenon  with  the  maintenance  of  the  old  rules  of  succession, 
below  550-554. 

5Y.B.  35  Hy.  VI.  Mich.  pi.  18  Copley,  one  of  the  prothonotaries,  was  appointed 
guardian ;  cp.  P.  and  M.  ii.  439  and  n.  5. 

^  Brissaud  ii  1149. 

7  Above  62;  and  cp.  Brissaud  ii  1144-1147. 

8  Above  511  and  n.  7.  *  Vol.  ii  65-66, 
!<>  Vol.  i  458-459  ;  above  426-427. 


THE  INFANT  518 

was  not  until  the  rise  of  the  equitable  jurisdiction  of  the  chancellor 
that  English  law  obtained  such  machinery,  and,  with  and  in  con- 
sequence of  that  machinery,  a  somewhat  more  adequate  conception 
of  the  position  of  guardian.  Even  then,  as  we  shall  see,  older 
ideas  still  limited  the  guardian's  activities.^ 

(3)  The  capacity  of  the  infant. 

The  question  of  the  legal  capacity  of  an  infant  must  always 
be  a  difficult  one.  It  is  impossible — especially  when  the  age  of 
majority  is  twenty-one — to  deny  him  all  capacity.  Equally  it 
would  be  obviously  unfair  to  the  infant  to  treat  him  as  a  full-grown 
man.  Where  and  how  is  the  line  to  be  drawn  ?  The  problem  is 
easier  when  we  have  got  a  developed  system  of  guardianship. 
The  guardian  can  act  for  the  ward — his  consent  can  be  made 
necessary  for  most  of  the  infant's  acts,  and  he  can  represent  him 
in  litigation.  Helped  by  the  guardian,  we  can  restrict  the  scope 
of  the  infant's  own  activities  within  a  small  compass.  But  early 
law  has  not  got  this  resource.  Guardianship  is  the  privilege  of 
the  guardian.  In  the  interests  of  the  infant  we  cannot  allow  him 
a  free  hand  to  do  acts  on  the  infant's  behalf.  Nor  is  it  possible 
to  allow  him  to  represent  the  infant  in  litigation.  As  we  have 
seen,  the  idea  that  one  person  can  completely  represent  another 
for  the  purposes  of  litigation  is  not  a  primitive  idea.  Such  repre- 
sentation is  a  luxury  to  be  allowed  only  occasionally  to  full-grown 
men,  and  under  the  guarantee  of  solemn  forms  ^ — to  the  end  an 
infant  could  not  appoint  an  attorney.  Early  law  therefore  is 
obliged  to  have  recourse  to  a  ruder  expedient.  The  guardian 
will  manage  the  infant's  property  during  his  minority ;  but 
during  that  minority  the  status  quo  must  as  far  as  possible  be 
maintained.  The  infant  must  get  his  property  at  his  majority  as 
it  was  left  to  him.  All  claims  by  or  against  the  infant  must  await 
the  infant's  majority  for  settlement.  All  actions  to  assert  those 
claims  will  therefore  be  suspended.  To  use  the  technical  phrase- 
ology of  the  common  law,  age  will  be  prayed,  and  the  parol  will 
demur  {loquela  remanebit)}  It  was  this  conception  which  was 
the  basis  of  the  common  law  doctrine  as  to  infants ;  and  it  was 
a  conception  which  was  in  early  days  well  known  in  other  systems 
besides  that  of  the  common  law.  What  is  peculiar  to  the  common 
law  is  its  long  life.     It  became  part  of  the  technical  machinery  of 

1  Below  520.  2  Vol.  ii  315-317. 

'  Brissaud  ii  1147  states  the  general  principle  very  clearly :  *•  La  capacity  du 
mineur  est  nulle ;  il  n'a  pas  le  droit  d'agir  en  justice  et  il  ne  saurait  etre  actionn^. 
Les  droits  qu'il  peut  avoir  ne  se  d^gagent  qu'^  sa  majority  et  par  consequent  tout 
proces  ou  il  est  int^resse  doit  sommeiller  jusque  \k.  Son  tuteur  n'a  pas  ^  le 
repr^senter ;  il  agit  en  son  nom  propre,  pour  son  compte  personnel.  D'ailleurs,  la 
representation  en  justice  est  interdite  en  principe  ;  I'admettre  par  exception  dans  ce 
cas  eut  €\.€  risquer  de  compromettre  les  int^r^ts  du  mineur." 

VOL.   HI.— 33 


514  STATUS 

the  common  law  when  the  land  law  and  the  real  actions  were  the 
most  important  part  of  that  law  ;  and  in  this  matter  equity  followed 
the  law,  and  applied  the  doctrine  in  cases  in  which  it  was  applied 
at  common  law.^  Having  thus  been  stereotyped  in  the  land 
law,  we  are  not  surprised  to  find  that  it  lasted  in  a  modified  form, 
along  with  other  archaisms,  till  the  year  1830.^  In  France  the 
doctrine  had  been  wholly  abolished  exactly  five  hundred  years 
earlier.^ 

It  is  therefore  with  the  old  conceptions  involved  in  the  demurrer 
of  the  parol  that  we  must  start.  We  shall  see  that  the  beginnings 
of  the  modern  law  on  this  subject  are  to  be  found  in  the  modifi- 
cations of  that  doctrine.  These  modifications  have  not  gone  very 
far  at  the  end  of  this  period ;  but  they  have  gone  far  enough  to 
enable  us  to  discern  in  dim  outline  some  of  the  main  features  of 
our  present  law.  They  proceeded  upon  various  principles,  and 
they  were  introduced  at  different  dates.  The  fact  that  the  later 
law  of  infancy  and  guardianship  has  been  constructed  from  the 
piecing  together  of  a  mass  of  exceptions  to  an  archaic  principle  has, 
more  than  any  other  single  cause,  rendered  it  difficult  and  obscure. 
We  who  write  history  ought  not  to  complain  of  survivals ;  but  in 
this  instance  we  must  admit  the  deplorable  effect  upon  the  common 
law  of  this  particular  survival.* 

There  may,  perhaps,  have  been  a  time  when  all  actions  by  or 
against  the  infant  were  suspended.  But  from  an  early  period  it 
was  found  necessary  to  modify  the  principle,  both  in  the  interest 
of  the  persons  injured  by  the  acts  of  the  infant,  and  in  the  interests 
of  the  infant,  who  sometimes  lost  his  rights  in  consequence  of  the 
suspension  of  the  action,  owing  to  the  disappearance  of  the  proofs 
necessary  to  substantiate  them.  ^  The  modified  form  of  the  prin- 
ciple, as  we  find  it  stated  in  Bracton,  seems  to  be  this  :  ^  if  an 
infant  has  obtained  property  of  which  his  ancestor  was  seised,  a 
person  who  claims  better  right  to  that  property  cannot  bring  his 
action  till  the  infant  attains  his  majority ;  and  conversely,  if  an 
infant  claims  in  the  right  of  his  ancestor  to  have  a  better  right  to 
property  of  which  another  is  seised,  he  cannot  sue  till  he  comes  of 
age.  Similarly,  if  in  a  chain  of  warrantors  an  infant  is  vouched, 
the  action  will  be  suspended  till  the  infant  comes  of  age.     The 

^Spence,  Equitable  Jurisdiction  i  616;  below  515  n.  5 ;  for  the  cases  in  which 
in  later  law  the  doctrine  was  applied  see  below  515-516. 

2 II  George  IV.,  i  William  IV.  c.  47  §  10. 

^Brissaud  ii  1148,  "  En  1330  une  ordonnance  abolit  tout  a  fait  le  vieux  droit." 

•*Swinburn,  Testaments,  loi,  says,  "  The  customes  ot  this  Realme  are  so  divers 
and  contrary  one  to  another,  which  doe  concerne  this  matter  [of  guardianship]  that 
I  might  easily  fall  into  divers  errors." 

^Brissaudii  1147,  1148. 

^  ff.  274-275b ;  P.  and  M,  ii  440,  441 ;  cp.  the  Eyre  Qf  Kent  (S.S.)  ii  102,  208  \ 
Y,B.  6  Ed.  II,  (S.S.)  i  xxxiv-xxxv. 


THE  INFANT  515 

principle  seems  already  to  have  been  for  the  most  part  restricted 
to  the  case  where  the  infant  is  claiming  an  inherited  right  to 
possession,  or  where  a  right  to  possession  is  being  claimed  against 
him  as  representing  some  ancestor.^  It  does  not  as  a  rule  apply 
where  the  claim  by  or  against  the  infant  arises  out  of  the  infant's 
own  acts  or  transactions.^  Thus  he  may  bring  the  novel  disseisin 
if  he  is  disseised ;  or,  conversely,  it  may  be  brought  against  him 
if  he  is  a  disseisor.'  This  principle,  in  its  application  to  the  real 
actions,  came  in  time  to  be  overlaid  with  a  mass  of  technical  dis- 
tinctions between  the  different  classes  of  these  actions  ;  and  it  was 
complicated  by  one  or  two  statutory  modifications.*  But  sub- 
ject to  these  exceptions  it  seems  to  have  been  founded  to  the 
end  upon  this  distinction  between  actions  based  upon  a  right 
descended  and  actions  based  upon  the  infant's  own  acts ;  and 
the  same  distinction  was  observed  by  the  court  of  Chancery.^ 
Even  in  Bracton's  day,  the  ancient  generality  of  this  old  principle 
was  thus  restricted.  He  deals  with  it  mainly  in  its  application 
to  some  classes  of  the  real  actions ;  and,  as  1  have  said,  it  was 
in  relation  to  these  actions  that  it  survived  till  the  nineteenth 
century.  That  it  had  once  been  wider  we  can  see  from  the  fact 
that  it  was  applied  to  the  action  of  debt  when  the  infant  was 
sued  by  the  creditors  of  his  ancestor,^  to  the  action  of  account, 
probably   under   the   same   conditions,'^    and    to    the   appeal   of 

1  Bracton  ff.  274b,  422b ;  Markal's  Case  (1593)  6  Co.  Rep.  3b,  **  Generally  in 
all  real  actions  which  the  infant  brings  upon  his  own  seisin,  though  he  had  the  land 
by  descent  .  .  .  the  parol  will  not  demur.  ..."  Thus,  *'  when  his  ancestor  dies 
seised,  and  the  land  descends  to  the  infant  and  he  enters  and  takes  esplees  and  pro- 
fits, in  that  case  it  would  be  prejudice  to  the  infant  that  he  should  lose  the  seisin 
which  he  has,  and  be  delayed  till  his  full  age.  But  when  only  a  bare  right  descends 
to  him  there  is  no  such  prejudice.  ...  In  all  cases  where  a  bare  right  in  fee  simple 
descends  to  him  from  an  ancestor,  there,  in  any  ancestral  action  brought  by  him, 
the  tenant,  without  any  plea  pleaded,  may  pray  that  the  parol  demur  ;  "  see  Y.BB. 
5  Ed.  II.  (1312)  (S.S.)  158-159 ;  the  Eyre  of  Kent  (S.S.)  ii  140-141 ;  8  Ed.  II.  (S.S.) 
53,  156-158;  12  Ed.  IV.  Mich.  pi.  20;  Fitz,,  Ab.  Age  pi.  39;  Basset's  Case  (1557) 
Dyer  at  ff.  137a,  137b. 

2  Bracton  f.  422,  "  Et  sciendum  quod  respondere  tenetur,  non  obstante  aetate, 
majori  in  omni  casu  tam  super  proprietate  quam  super  possessione,  et  minori  in  causa 
possessionis,  si  fuerit  feoffatus  in  minori  aetate ; "  Basset's  Case  (1557)  Dyer  at  f. 
137b ;  see  for  good  instances  of  the  application  of  this  principle  Y.B.  3,  4  Ed.  II. 
(S.S.)  14,  185. 

3  See  Holford  v.  Piatt  (1618)  Cro.  Jac.  at  p.  467  per  Croke,  J. ;  similarly  it  was 
held  in  Smith  v.  Smith  (i6o5)  Cro.  Jac.  in  that  ♦*  dower  is  demandable  against  an 
infant,  and  he  shall  not  have  his  age;  wherefore  it  is  reason  his  default  should 
prejudice  himself,  and  not  the  plaintiff;  for  otherwise  the  wife  should  never  recover 
during  his  minority,  for  he  would  always  make  default,  and  dower  is  to  be  favoured." 

*  Stat.  West.  I.  3  Edward  I.  c.  47;  Statute  of  Gloucester,  6  Edward  I.  c.  2  ;  Stat. 
West.  II.  13  Edward  I.  st.  i  c.  40. 

"*•'  A  corresponding  rule  was  adopted  by  the  court  of  Chancery,  and  the  parol 
was  allowed  to  demur  in  that  court  when  the  suit  was  by  creditors  to  affect  lands 
which  had  descended  on  an  infant  heir,"  Spence,  Equitable  Jurisdiction  i  616. 

"Y.B.  19  Ed.  II.  p.  623 ;  cp.  Bracton's  N.B.  case  1543 ;  Fitz.,  Ab.  Age  pi.  51. 

'  Y.B.  18  Ed.  II.  p.  563 — the  report,  which  is  very  short,  does  not  state  that  the 
liability  was  that  of  the  ancestor. 


516  STATUS 

felony.^  We  must  now  turn  to  the  modifications  of  this  old 
principle  which  form  the  beginnings  of  the  modern  law  as  to  the 
capacity  of  the  infant. 

We  have  seen  that  the  deficiencies  in  the  mediaeval  conception 
of  guardianship  were  largely  caused  by  the  survival,  in  the  inter- 
ests of  the  feudal  lord,  of  the  old  idea  that  guardianship  is  a 
privilege.  We  have  seen  that  the  principle  of  the  demurrer  of 
the  parol  belongs  to  the  same  order  of  ideas — that  it  comes  to  us 
from  a  time  when  to  permit  the  guardian,  who  had  the  privileges 
and  profit  of  the  office,  to  act  for  the  infant  would  hardly  be 
beneficial  to  the  infant ;  and  from  a  time  when  the  theory  that 
the  guardian  could  represent  the  infant  was  a  theory  as  yet  un- 
recognized by  the  law.  Thus  it  happened  that  no  comprehensive 
theory  of  guardianship  arose  ;  and  when  the  old  principle  of  the 
demurrer  of  the  parol  was  modified,  the  modification  took  the 
form,  not  of  giving  extended  powers  and  liabilities  to  the  guardian, 
but  of  allowing  the  infant  himself  to  do  certain  acts  and  to  effect 
certain  legal  results.  In  France  the  old  principle  was  swept  away 
and  a  law  of  tutor  and  ward,  based  on  Roman  principles,  was 
gradually  substituted ;  ^  and  it  would  seem  that,  at  the  end  of 
the  sixteenth  century,  there  were  some  who  thought  that  it 
would  have  been  better  if  the  Roman  institution  of  Tutela  had 
been  introduced  into  the  common  law.^  But  it  never  was  intro- 
duced. The  old  principle  of  the  demurrer  of  the  parol  remained ; 
but  it  was  modified  by  the  growth  of  rules  which  allowed  the  in- 
fant himself  to  act  in  certain  cases. 

The  infant  can  acquire  and  own  property.^  He  is  liable  also 
civilly  and,  if  doli  capax,  criminally  for  his  wrongful  acts.^  It 
follows  from  this  that  he  can  be  made  liable  if  he  dispossesses  an- 
other ;  *  if  he  commits  waste,  or  any  kind  of  trespass \'^  if  he  does 

1  Y.BB.  21  Ed.  III.  Trin.  pi.  i6 ;  45  Ed.  III.  Trin.  pi.  36;  41  Ass.  pi.  14.  Here 
it  did  some  damage.  If  a  child  of  three  appealed  a  man  of  felony  the  parol  de- 
murred, and  no  indictment  could  be  brought  (Fitz.,  Ab.  Corone  pi.  114  =  Y.B.  21 
Ed.  III.  Trin.  pi.  16) ;  this  opened  the  door  to  collusion  and  evasion ;  therefore  we 
find  that  the  rule  was  abandoned  in  Henry  VI. 's  reign  (Fitz.,  Ab.  Corone  pi.  278, 
279). 

^Brissaud  ii  1159  n.  5,  "  On  peut  dire  qu'au  quatorzieme  siecle,  I'idde  de  pro- 
tection du  mineur  I'emporte ;  ^  partir  de  ce  moment,  elle  p^netre  de  plus  en  plus  la 
legislation  et  la  pratique." 

3  Thus  in  Beverley's  Case  (1603)  4  Co.  Rep.  at  ff.  125b,  126a,  Coke  tells  us  that 
in  the  case  of  lunatics,  many  preferred  the  civil  law,  and  that  it  was  commonly  said 
to  be  "  a  great  defect  in  law  that  no  tutor  is  assigned  to  them  by  law,  who  may  pro- 
tect them,  and  principally  their  inheritance  " — clearly  much  the  same  reasoning  is 
applicable  to  infants. 

^  P.  and  M.  ii  437,  438.  ^  Above  372,  376. 

^  Bracton  f.  422,  "  Respondebit  etiam  in  minori  astate  de  facto  suo  et  injuria  sua 
propria,  tam  in  causa  criminali  quam  civili,  dum  tamen  civiliter  agatur  :  ut  si  minor 
disseysinam  fecerit,  ad  assisam  novae  disseysinae  respondebit." 

7  Y.B.  3  Hy.  VI.  Mich.  pi.  22. 


THE  INFANT  517 

not  pay  the  rent  or  perform  the  services  due  from  his  land.^  Con- 
versely he  can  sue  for  money  due  to  himself,^  or  bring  the  action 
of  account  against  one  who  has  received  money  on  his  behalf.^ 

It  is  when  we  come  to  attempted  activities  on  the  part  of  the 
infant,  such  as  the  alienation  or  letting  of  his  property,  the  pur- 
chasing of  goods,  the  receipt  of  money  on  behalf  of  another,  or 
the  detention  of  another's  property,  that  doubts  begin. "^  After 
some  conflict  of  opinion  ^  it  was  settled,  at  the  end  of  this  period, 
that  he  could  lease  his  property,  though  he  could  disaffirm  the 
transaction  when  he  came  of  age.  In  other  words,  such  an  act 
was  not  void,  but  voidable.^  It  was  therefore  impossible  for  an 
infant  to  make  a  disposition  of  his  property  which  would  bind  him 
irrevocably  when  he  came  of  age.  But  this  disability  was  in 
many  cases  by  no  means  for  the  advantage  of  the  infant.  This 
fact  was  beginning  to  be  perceived  in  the  sixteenth  and  early 
seventeenth  centuries ;  and  the  courts  tried  to  get  round  the  rule 
by  a  very  curious  expedient.  There  was  authority  in  the  Year 
Books  for  the  proposition  that,  if  an  infant  appeared  by  a  guardian 
ad  litem,"'  and  the  guardian  caused  him  loss  by  the  negligent  way 
in  which  he  conducted  the  litigation,  the  infant  had  a  right  of 
action  against  the  guardian.^  Thus  if  the  guardian  had  omitted 
to  plead  infancy,  and  judgment  had  been  given  against  the  infant, 
the  judgment  stood,  and  the  infant's  only  remedy  was  against  the 
guardian.^  From  these  premises  the  conclusion  was  deduced 
that  if  an  infant  conveyed  his  property  by  common  recovery  in 
which  he  appeared  by  guardian  and  did  not  plead  infancy,  the 
conveyance  stood. ^*^  The  infant,  it  was  said,  had  a  remedy  against 
his  guardian  which  was,  or  ought  to  be  sufficient,  ^^  as  it  was  the 

1  Markal's  Case  (1593)  6  Co.  Rep.  3b  ;  cp.  Y.B.  18  Ed.  IV.  Pasch.  pi.  7;  Fitz., 
Ab.  Age  pi.  33,  55,  140,  but  see  contra  pi.  log,  132. 

2  Y.B.  18  Ed.  IV.  Pasch.  pi.  t  her  Brian  and  Littleton. 
3Y.B.  6Ed.  III.  Mich.  pi.  12. 

*Fitz.,  Ab.  Enfant  pi.  11 — account  does  not  lie  against  an  infant;  Y.B.  4I 
Ed.  III.  Mich.  pi.  35 — detinue  does  not  lie. 

°  Y.B.  3,  4  Ed.  II.  (S.S.)  142  Stanton,  J.,  seems  to  think  that  a  release  by  an 
infant  is  worth  nothing;  Eyre  of  Kent  (S.S.)  ii  181,  183  an  infant's  deed  is  held  to  be 
void ;  Y.B.  9  Hy.  VI.  Pasch.  pi.  13  there  is  a  long  discussion  as  to  whether  a  feoff- 
ment by  an  infant  is  void  or  voidable. 

^  Y.B.  7  Ed.  IV.  Pasch.  pi.  16  (p.  6)  per  Brian,  a  lease  by  a  feme  covert  is  **  al 
commencement  merement  void  et  nemy  bon.  .  .  .  Et  il  n'est  semble  I'ou  un  enfant 
deins  age  fait  un  lease  reservant  certein  rent,  car  il  poit  faire  eel  lease  bon  per  agree- 
ment quant  il  vient  a  son  plein  age,  pur  ceo  que  eel  lease  fuit  bon  al  commence- 
ment;" cp.  Y.B.  9  Hy.  VII.  Pasch.  pi.  7;  Ketsey's  Case  (1614)  Cro.  Jac.  320. 

'  For  this  guardian  see  above  512  ;  below  519. 

8  Y.B.  9  Ed.  IV.  Mich.  pi.  10  (p.  35).  » Ibid. 

^"  See  Blount's  Case  (1618)  Hob.  at  p.  197,  where  the  prothonotaries  cited  pre- 
cedents of  such  recoveries  from  M.  38  H.  8  onwards. 

^^  ♦'  An  enfant  tenant  in  tail  did  suffer  a  recovery  by  his  guardian  ;  it  was  holden 
by  the  Court,  that  the  same  should  binde  him,  because  he  might  have  remedy  over 
against  the  guardian  by  action  upon  the  case,"  Zouch  and  Michel's  Case  (1610) 
Godbolt.  61. 


518  STATUS 

duty  of  the  court  to  see  that  the  guardian  it  appointed  was  capable 
of  answering  in  damages  to  the  infant.^  Clearly  this  rule,  based 
on  this  somewhat  far-fetched  reason,  was  adopted  in  order  to 
provide  a  means  by  which  an  infant  might  make  an  indefeasible 
conveyance ;  and  at  the  end  of  the  sixteenth  century  it  was  ap- 
parently accepted  as  good  law,  and  the  expedient  was  extensively 
employed  for  this  purpose.^  But  its  efficacy  was  seriously  shaken 
by  Coke's  ruling  in  1614  that  *'a  common  recovery  against  an 
infant,  although  he  appears  by  guardian,  shall  not  bind  the 
infant."  ^  To  get  over  this  ruling  the  expedient  was  adopted, 
certainly  as  early  as  161 8,*  of  petitioning  the  king  to  write  to  the 
judges  of  the  Common  Pleas  a  letter  under  the  privy  seal  request- 
ing them  to  allow  the  infant  to  suffer  a  recovery.  If  he  did  so, 
and  the  recovery  was  suffered,  it  was  the  established  rule  during 
the  seventeenth  century  that  the  infant  was  bound.  ^  But  the 
judges  had  always  claimed  some  discretion  in  allowing  or  refusing 
to  allow  these  recoveries  ;  and  after  the  Revolution  they  asserted 
their  independence  more  strongly,  and  sometimes  refused  to  allow 
a  recovery  in  obedience  to  an  order  of  the  king.^  This  seems  to 
have  been  fatal  to  the  efficacy  of  this  expedient,  as  Cruise  tells  us 
that,  when  he  wrote,  it  had  ceased  to  be  the  practice  to  apply  to 
the  king,  and  that  recourse  was  always  had  to  a  private  Act  of 
Parliament.^ 

As  the  law  of  contract  during  this  period  was  less  developed 
than  the  law  of  property,  there  is  less  authority  as  to  the  con- 
tractual capacity  of  infants.  We  can  see,  however,  the  beginnings 
of  some  of  the  later  rules  of  the  common  law.  As  a  general  rule 
the  law  was  tending  to  treat  such  contracts  in  the  same  manner 
as  the  other  acts  of  an  infant,  and  to  rule  that  they  were  not  void, 
but  voidable.  Even  if  a  contract  was  clearly  for  the  benefit  of 
the  infant,^  such  as  a  contract  of  apprenticeship,  it  was  held  at 

1  Y.B.  9  Ed.  IV.  Mich.  pi.  10  (p.  34) ;  Newport  v.  Mildmay  (1634)  Cro.  Car.  307. 

2  Stapleton's  Case  (1596)  Cro.  Eliza.  471 ;  Blount's  Case  (1618)  Hob.  196 ;  New- 
port V.  Mildmay  (1634)  ^^^'  ^^^'  S^?* 

3  Mary  Portington's  Case  10  Co.  Rep.  at  f.  43a. 
*  Blount's  Case  Hob.  196. 

"  Heskett  v.  Lee  (1670)  i  Mod.  48 ;  S.C.  2  Wms.  Saunders  95-96  and  note,  Cp. 
Hulbut  V.  Watts  (1697)  i  Ld.  Raym.  at  p.  112  where  it  was  stated  in  argument  that 
"it  is  the  usual  practice  "  for  infants  to  suffer  these  recoveries  in  pursuance  of  these 
writs  under  the  privy  seal ;  for  instances  of  their  issue  see  S.P.  Dom.  1638-1639,  440, 
ccccxii  74  ;  1660-1661,  588,  xxxv  59. 

« Sir  John  St.  Alban's  Case  (1689)  2  Salk.  567. 

'  Fines  and  Recoveries  (3rd  ed.)  ii  184. 

^  "  Tilton.—We  have  said  that  the  loan  was  for  your  profit,  and  you  ought  to 
be  answerable  for  it,  just  as  an  infant  under  age  is  answerable  when  he  attains  his 
age  for  what  he  has  received  to  his  profit.  Assheley. — I  do  not  agree  in  that  .  .  . 
for  an  infant  when  he  attains  his  age  may  disclaim  all  that  he  did  while  he  was 
under  age,"  Eyre  of  Kent  (S.S.)  ii  46-47;  Assheley's  view  prevailed,  see  Y.BB.  21 
Hy.  VI.  Hil.  pi.  18  ;  21  Ed.  IV.  Pasch.  pi.  17  ;  Gylbert  v.  Fletcher  (1630)  Cro.  Car. 
179. 


THE  INFANT  519 

the  end  of  this  period,  in, spite  of  a  little  earlier  authority  to  the 
contrary/  that  it  was  voidable.  But  we  can  see  signs  of  two 
later  modifications  of  this  general  rule.  In  the  first  place,  if  an 
infant  had  taken  a  lease  of  land  and  occupied  the  land  he  must 
pay  the  rent  '^ — a  decision  which  helped  to  establish  the  modern 
rule  *  that,  '*  When  an  infant  acquires  an  interest  in  permanent 
property  to  which  obligations  attach,  or  enters  into  a  contract 
which  involves  rights  and  duties,  benefits  and  liabilities,  and 
takes  some  benefit  under  the  contract,  he  is  bound,  unless  he 
expressly  disclaims  the  contracts."  *  In  the  second  place  the 
courts  were  gradually  coming  to  the  conclusion  that  a  contract  for 
necessaries  will  bind  the  infant  to  pay  the  money  due  in  such  a 
case ;  but  what  will  be  deemed  to  be  necessaries,  and  whether 
or  not  the  infant  must  pay  the  contract  price,  are  questions  which 
will  not  be  settled  till  a  later  period  in  the  history  of  the 
law.^ 

We  must  note  that  in  all  these  cases  it  is  the  infant  himself 
who  acts.  Therefore  it  became  necessary  to  consider  how  he 
should  appear  before  the  court  if  his  acts  came  into  question. 
Old  ideas  prevented  him  from  appointing  an  attorney.®  Gradu- 
ally the  idea  sprang  up  that  the  court  should  allow  a  next  friend 
to  sue  on  behalf  of  the  infant  who  had  some  right  to  assert ; 
while,  if  he  was  sued,  the  court  should  appoint  a  guardian  ad 
litem y  who  might,  as  we  have  seen,  be  one  of  its  own  officials. '^ 

1  In  Y.B.  12  Rich.  II.  108-110  it  was  maintained  that  a  contract  of  service  could 
be  made  by  a  child  of  twelve  ;  this  may  be  due  to  ideas  derived  from  the  Statutes 
of  Labourers  ;  in  Y.B.  21  Hy.  VI.  Hil.  pi.  18  Newton  distinguishes  an  obligation  to 
serve  based  on  those  statutes  and  a  contract  of  apprenticeship ;  see  vol.  ii  462. 

2  Y.B.  21  Hy,  VI.  Hil.  pi.  18  (p.  31)  ^er  Newton;  cp.  Ketsey'sCase  (1614)  Cro. 
Jac.  320. 

3  See  Birkenhead  Rly.  Co.  v.  Pilcher  (1857)  5  Ex.  at  p.  126  per  Parke,  B. 
*  Anson,  Contracts  (12th  ed  )  124-125. 

5  In  Y.B.  21  Hy.  VI.  Hil.  pi.  18  the  question  whether  the  infant  could  be  bound 
for  necessaries  was  discussed.  Paston  seemed  to  think  he  could  not ;  the  question 
also  appears  doubtful  in  Y.B.  10  Hy.  VI.  Mich.  pi.  46;  but  in  Y.B.  18  Ed.  IV. 
Pasch.  pi.  7  we  get  the  modern  principle  laid  down  in  a  dictum  of  Vavisour's  to 
the  following  effect :  '*  Vavisour  dit  in  secreto  a  Littleton  a  meme  le  temps,  que  si 
un  enfant  soit  al  table  ove  moy  pregnant  pour  son  table  xx  deniers  per  chescun 
semaign,  ou  s'il  achate  vesture  ou  draps  de  moy  .  .  .  jeo  avera  accion  de  Det 
vers  luy,  et  ne  sera  plee  a  dire  que  il  fuit  deins  age,  pour  ce  que  le  ley  entend  que 
il  ne  poit  vivre  sans  manger  boier  et  vesture,  et  pour  ce  le  ley  voit  que  il  rendra 
I'argent  due  per  luy  en  cest  case ;"  seeing  that  the  plaintiff  in  Debt  must  sue  lor 
the  agreed  price  (Y.B.  3  Hy.  VI.  Mich.  pl.  4  (p.  5)),  it  would  seem  that  if  Debt 
lay,  the  agreed  price,  and  not  simply  a  reasonable  price,  could  be  recovered ;  we 
shall  see  that  the  modern  rule  that  only  a  reasonable  price  is  recoverable  grew  up  in 
connection  with  the  form  of  the  action  usually  employed  in  later  law — assumpsit  on 
a  quantum  meruit,  Bk.  iv  Pt.  II.  c.  3  §  2. 

^  Bracton  f.  422 ;  vol.  ii  317. 

'Above  512  n.  5;  see  the  Register  f.  93b  for  the  writ;  Stat.  West.  I.  c.  48; 
Stat.  West.  II.  c.  15 ;  as  Coke  says  (Second  Instit.  390)  the  guardian  and  the  next 
friend  are  often  in  the  older  writers  taken  as  almost  synonymous  terms ;  see  Y.B. 
2  Ed.  III.  Mich.  pl.  13  for  a  suit  by  next  friend. 


520  STATUS 

And,  when  an  infant  is  a  party,  the  court  will  not  be  extreme  to 
mark  small  deviations  from  its  procedural  rules.^ 

In  the  absence,  then,  of  a  comprehensive  law  of  guardianship 
the  common  law  attempted  to  define  the  capacity  of  the  infant. 
It  made  him  liable,  and  it  allowed  him  to  act  in  certain  cases ; 
and,  at  the  end  of  this  period,  it  was  arriving  at  some  tentative 
conclusions  as  to  the  legal  results  of  those  acts.  It  was  not  till 
feudal  wardship  was  abolished,  and  the  equitable  conception  of 
trusteeship  was  so  extended  as  to  embrace  the  guardian,^  that  the 
guardian  was  able  in  any  way  to  supplement  the  imperfect 
capacity  of  the  infant.  Even  then  the  powers  of  the  guardian, 
unless  expressly  conferred  upon  him  by  some  one  who  was 
settling  property  on  the  infant,  were  very  limited.  We  have  seen 
that  to  increase  these  powers,  or  to  enable  the  infant  to  bind  him- 
self irrevocably,  a  private  Act  of  Parliament  was  necessary.^  It 
is  not  till  these  last  days,  and  by  express  statutory  provision,  that 
the  guardian  of  the  infant  who  owns  land  has  been  empowered  to 
act  on  the  infant's  behalf."^  English  law  has  adhered  so  closely 
to  the  old  ideas  embodied  in  the  demurrer  of  the  parol,  that  the 
guardian  cannot  act  generally  for  the  infant ;  and  the  infant, 
therefore,  except  in  so  far  as  later  rules  have  allowed  him  to 
modify  his  own  position,  must  get  his  property  at  his  majority  in 
the  same  condition  as  it  was  in  at  the  time  when  he  succeeded 
to  it. 

,  §  5.   The  Married  Woman 

The  status  of  the  married  woman  is  one  of  the  most  difficult  of 
all  the  problems  of  private  law ;  and  to  it  legal  systems  have  given, 
and  still  give,  the  most  diverse  answers.^  No  legal  system  which 
deals  merely  with  human  rules  of  conduct  desires  to  pry  too 
closely  into  the  relationship  of  husband  and  wife.  Dealings  be- 
tween husband  and  wife  are  for  the  most  part  privileged.  But 
some  rules  every  legal  system  must  have  to  regulate  the  pro- 
prietary relationships  of  the  parties  when  they  both  own  property, 
and  to  regulate  the  fate  of  such  property  when  the  marriage 
terminates.  Then,  again,  both  husband  and  wife  have  deah'ngs 
with  the  outside  world.  The  wife  may  commit  crimes,  or  torts, 
or  make  contracts.     What  is  her  position  and  that  of  her  husband 

1  Above  373  n.  3  ;  Fitz.,  Ab.  Enfant  pi.  7 ;  41  Ass.  p.  254  pi.  14;  Y.B.  20  Ed. 
III.  (R.S.)  i  272,  422;  Dyer  at  f.  104b;  P.  and  M.  ii  439;  for  a  modern  case  in 
which  an  infant  was  given  a  procedural  privilege  which  could  not  have  been  given 
to  an  adult  see  Rhodes  v.  Svvithenbank  (1889)  22  Q.B.D.  577. 

2  Vol.  i  437  n.  I,  466.  3  Above  518. 
4  Settled  Land  Act,  1882,  44,  45  Victoria  c.  38  §§  59,  60. 
^  P.  and  M.  ii  397. 


THE  MARRIED  WOMAN  521 

with  respect  to  these  diverse  activities  ?  It  is  obvious  that  the 
answer  given  will  be  coloured  by  the  prevailing  views  as  to  the 
constitution  of  the  family.  One  answer  will  be  given  if  the  family 
recognized  by  law  is  an  agnatic  family,  another  if  the  woman  and 
her  children  are  regarded  as  related  to  her  old  family.  In  later 
law  the  answer  given  will  be  coloured  by  the  position  in  society 
which  the  married  couple  occupy.  There  will  be  one  law  for 
the  noble,  another  for  the  free  but  not  noble,  another  for  the 
burgess.^  Still  later  it  will  be  coloured,  in  the  interest  of  the 
wife,  by  ideas  drawn  from  the  later  Roman  law  which  carefully 
safeguarded  the  married  woman's  dos}  Up  to  comparatively 
recent  times,  and  especially  in  the  Middle  Ages,  it  will  be 
coloured  by  the  canonist's  conception  of  marriage  as  a  sacrament 
which  makes  the  husband  and  wife  one  flesh,  and  gives  the  hus- 
band dominion  over  the  wife.^  Thus  many  varied  influences  are 
brought  to  bear  upon  a  legal  problem,  the  factors  of  which  are,  in 
the  normal  case  very  hazy.  The  woman  has  property ;  the  man 
has  property ;  as  we  have  seen,  both  have  powers  of  dealing  with 
it,  and  both  have  certain  rights  of  succession.^  While  things  go 
well  the  husband  will  probably  have  the  largest  share  in  managing 
this  common  stock ;  but  neither  will  wish  to  see  this  stock  per- 
manently dissipated.  It  is  not  right  that  the  family  property 
should  be  squandered :  at  the  same  time  it  is  advisable  to  give 
the  husband  a  free  hand  in  its  management — he  is  the  head  of 
the  family.  The  problem  is  to  draw  the  line  in  such  a  way  as  to 
preserve  something  for  the  wife  and  family  without  unduly 
fettering  the  powers  of  the  husband ;  to  protect  the  wife,  and  yet 
not  give  her  and  her  property  so  ample  a  protection  that  third 
parties  will  be  prejudiced.  It  is  not  surprising  that  to  a  problem 
so  delicate,  so  many-sided,  and  complicated  by  so  many  varying 
ideas,  new  and  old,  as  to  the  nature  of  the  family  and  the  con- 
ception of  marriage,  there  should  have  been  many  different 
answers. 

Taking  a  very  broad  view  of  the  many  various  answers  which 
have  been  given  to  this  problem,  we  can  say  that  the  lawyers  of 
Western  Europe  recognized  two  main  systems.     There  were  the 

1  Below  524-525. 

2Cp.  e.g.  Brissaud  ii  1726-1727  as  to  the  borrowing  of  the  principle  of  the 
separatio  bonorum  in  the  sixteenth  century ;  for  the  "  Regime  Dotal  Romain  "  as 
it  existed  in  Italy,  Spain  and  the  pays  de  droit  dcrit,  see  ibid  1689-1694. 

3  For  a  belated  instance  of  the  religious  influence  see  Hawkins,  P.C.  i  93 ;  he 
is  explaining  the  rule  that  the  wile  cannot  commit  larceny  of  her  husband's  goods, 
and  says,  "  A  husband  and  wife  are  considered  but  as  one  person  in  law,  and  the 
husband,  by  endowing  his  wife  at  marriage  with  all  his  worldly  goods,  gives  her  a 
kmd  of  interest  in  them;"  cp.  below  530  for  Bracton's  rule  as  to  the  wife  aiding 
the  husband  who  has  committed  felony. 

4  Above  185-197 ;  below  550,  561. 


522  STATUS 

countries  which  recognized  a  system  of  community  of  ownership 
between  husband  and  wife,  and  countries  which  did  not.  Under 
the  first  head  fall  the  co-partnership  in  acquisitions  recognized  in 
Spain  and  south-west  France,  the  co-ownership  of  movables  and 
acquisitions  recognized  in  France  in  the  pays  du  droit  coutumier 
and  in  some  parts  of  Germany,  and  the  co-ownership  in  all  property 
recognized  in  other  parts  of  Germany.  Under  the  second  head 
fall  England,  Normandy,  a  large  part  of  Germany  and  Switzerland, 
\}^Q.  pays  du  droit  ^crit  and  some  parts  of  the  east  of  France,  Italy, 
and  the  parts  of  Spain  which  recognized  the  system  of  the  Roman 
dos} 

But  in  the  Middle  Ages  the  fundamental  division  between  these 
two  systems  was  by  no  means  clear  cut.  The  lawyers  had  not  yet 
sharpened  their  distinctions  and  invented  detailed  rules  to  give 
effect  to  their  principles.  The  principles  themselves  were  still 
governed  by  custom,  and  were  therefore  hazy  and  flexible.  As 
Brissaud  says,^  *'Up  to  the  end  of  the  older  law  it  could  be  said, 
however  paradoxical  the  expression  may  seem,  that  the  set  of  rules 
which  approached  most  nearly  to  community  was  the  set  of  rules 
which  excluded  community.  .  .  .  Where  community  is  recognized, 
it  is  said,  the  woman  is  interested  in  the  prosperity  of  the  house- 
hold ;  that  is  true ;  but  it  is  not  more  true  where  it  is  recognized, 
and  where  she  only  has  a  right  to  a  third  of  the  common  property, 
than  where  it  is  not  recognized  and  she  also  has  a  right  to  a  third 
as  survivor.  The  transmission  to  her  heirs  of  her  rights  in  the 
common  fund  is  the  only  practical  difference.  At  first,  then,  the 
system  of  community  does  not  differ  much  from  the  rules  which 
obtained  among  the  barbarians.  But  an  evolution,  due  entirely 
to  'jurisprudence'  and  to  practice,  modified  the  primitive  traits  of 
the  system  of  community  by  multiplying  in  the  interest  of  the  wife 
privileges  and  safeguards  as  checks  upon  the  very  extensive  powers 
of  the  husband.  ...  It  is  because  originally  the  system  of  com- 
munity was  not  very  different  from  the  older  system  that  there 
were  retained,  side  by  side  with  it,  institutions  such  as  the  dower 
and  the  mutual  gift,  which  were  far  more  in  harmony  with  the 
older  order."  It  was  possible  for  a  strong  ''jurisprudence,"  by 
insisting  on  one  aspect  of  the  older  order  and  by  neglecting  another, 
to  construct  out  of  it  the  most  divergent  systems  of  law.  We  are 
at  the  source  of  the  stream,  and  a  very  little  will  determine  whether 
the  water  flows  down  one  slope  or  the  other. 

English  law  of  the  twelfth  and  the  beginning  of  the  thirteenth 
centuries  is  the  law  of  a  period  which  has  not  yet  made  up  its 
mind  as  to  the  position  of  the  married  woman.  Let  us  take  first 
of  all  the  case  of  the  wife's  land.     Neither  husband  nor  wife  can 

^  Brissaud  ii  1655.  ^^ii  1699,  1700. 


THE  MARRIED  WOMAN  523 

be  sued  without  the  other.  But,  according  to  some,  if  this  course 
is  pursued  the  husband  may  vouch  his  wife  as  warrantor,  and  she 
will  appear  and  plead ;  according  to  others  the  writ  will  abate.^ 
The  husband  can  alienate  the  wife's  land  ;  but  the  wife  sometimes 
gives  her  land  with  her  husband's  consent,  sometimes  she  conveys 
her  land  together  with  her  husband  ;  and  the  price  is  either  paid  to 
both,  or  a  separate  price  is  given  to  each.^  It  was  not  till  Bracton's 
day,  and  as  the  result  of  judicial  decision,  that  the  rule  became 
clear  that  a  fine,  and  a  fine  alone,  will  suffice  to  convey  the  wife's 
land;  but  in  Henry  Il.'s  reign  we  see  the  germs  of  such  a  rule  in 
the  fact  that  the  conveyance  before  a  court  is  deemed  advisable  if 
a  married  woman  is  the  conveying  party.^  Similarly,  as  we  have 
seen,  it  was  not  till  the  beginning  of  the  fifteenth  century  that  the 
wife  gained  a  settled  right  to  dower  out  of  a  third  of  the  husband's 
lands  of  which  he  had  ever  been  solely  seised  for  an  estate  of 
inheritance  during  the  marriage.* 

If  we  look  at  the  wife's  chattels  we  shall  see  that  it  is  not  at 
all  certain  that  she  cannot  own  chattels.  In  1231  a  wife  living 
apart  from  her  husband  was  successfully  sued  for  goods  bought 
and  money  borrowed.^  In  later  law  a  married  woman  could,  by 
the  custom  of  certain  towns,  be  sued  if  she  was  carrying  on  a  trade 
apart  from  her  husband.®  We  shall  see  that  there  has  been  con- 
siderable doubt  as  to  whether  or  not  a  wife  could  make  a  will ;  and 
that  long  after  the  thirteenth  century  such  wills  were  known.'' 
Even  in  the  developed  common  law  a  wife's  will  would  hold  good 
if  the  husband  did  not  dispute  it ;  ^  and  the  rule  that  the  wife's 
personal  ornaments — her  paraphernalia — will  survive  to  her  may 
well  take  us  back  to  primitive  rules  which  regarded  these  things  as 
peculiarly  her  property.^  Again,  we  shall  see  that  the  wife  in  early 
days  had  a  right  to  a  third  of  the  chattels  if  she  survived  her  husband, 
of  which  right  probably  the  husband  could  not  deprive  her  by  his 
will ;  and  that  it  is  by  no  means  certain  that  the  wife  could  not  dis- 
pose of  this  third  by  her  will.^*^ 

^  P.  and  M.  ii  405,  406. 

^  Ibid  407,  408,  and  references  there  cited;  cp.  Eynsham  Cart  nos.  163,  164. 

"  P.  and  M.  ii  409,  410,  and  reference  to  Winchcombe  Landboc  i  180  there  cited ; 
cp.  Y.BB.  30,  31  Ed.  I.  (R.S.)  364,  "  Bereford,  J.— If  you  have  had  an  attornment  in 
pais  why  do  you  wish  to  have  it  here  in  court  ?  Warr. — To  make  sure  Adam's  estate  ; 
because  Christiana  is  a  married  woman ; "  32,  33  Ed.  I.  (R.S.)  46,  a  release  and  quit 
claim  in  court  affecting  a  wife,  and  afterwards  sued  on ;  see  Y.B.  18  Ed.  III.  (R.S.) 
376  for  a  survival,  "  We  tell  you  that  by  the  custom  of  Winchester,  where  the  tene- 
ments are,  if  a  husband  and  his  wife  make  a  feoffment,  and  the  wife  comes  into  their 
court  there  and  acknowledges  that  it  is  her  wish,  she  is  barred  for  ever." 

*  Above  193. 

^Bracton's  Note  Book  case  568,  cited  P.  and  M.  ii  432. 

^Borough  Customs  (S.S.)  ii  cxii,  cxiii. 

'  Below  543.  8  Below  544. 

» Ibid.  ^0  Below  550,  555. 


524  STATUS 

The  husband  is  husband,  and  as  such  the  guardian  of  his  wife's 
property.  He  has  large  powers  over  that  property,  whether  it  be 
chattels  or  land.  But  these  large  powers  do  not  necessarily  mean 
that  the  wife  has  no  powers,  still  less  that  she  has  no  rights.  Many 
of  these  rules  show  us  that  the  law  might  easily  have  decided  in 
favour  of  recognizing  a  community  of  ownership  between  husband 
and  wife.^ 

In  the  course  of  the  thirteenth  century  the  law  took  a  turn 
which  resulted  in  the  rejection  of  any  theory  of  community.  This 
was  due  to  two  causes,  (i)  We  have  seen  that  the  royal  courts, 
and  therefore  the  common  law,  surrendered  to  the  ecclesiastical 
courts  all  jurisdiction  over  testamentary  and  intestate  succession  to 
chattels.^  This  meant  that  the  common  law  lost  sight  of  the  wife's 
right  to  chattels  on  the  death  of  her  husband.  It  looked  only  at 
the  state  of  things  which  existed  while  the  marriage  lasted ;  and, 
during  this  period,  both  in  countries  which  recognized  community 
and  in  countries  which  did  not,  its  chief  feature  was  the  absolute 
control  of  the  husband.  Thus  the  common  law  naturally  tended 
to  magnify  the  control  of  the  husband  to  such  a  degree  that  it 
literally  gave  him  the  chattels  of  the  wife,  and  denied  the  wife  any 
capacity  to  own  them.^  We  may  note  that,  in  the  case  of  land, 
the  husband's  and  wife's  rights  of  succession  after  death  were  not 
left  to  the  ecclesiastical  courts.  We  have  seen  that  the  wife  got  a 
right  to  dower  out  of  her  husband's  lands,  of  which  her  husband 
could  not  deprive  her ;  *  and  that,  though  the  husband  had  large 
powers  over  the  wife's  land,  that  land  went  eventually  to  her 
heirs. ^  If  the  common  law  had  been  obliged  to  consider  the  rights 
of  the  husband  and  wife  to  each  other's  chattels  after  death,  as  they 
were  obliged  to  consider  their  rights  to  each  other's  land,  we  may 
well  doubt  whether  they  would  have  laid  it  down  that  marriage 
gives  the  wife's  chattels  absolutely  to  the  husband.  We  shall  see 
that  this  view  is  borne  out  by  the  position  assigned  to  the  husband 
by  the  developed  common  law  in  relation  to  his  wife's  land  as 
compared  with  the  position  assigned  to  him  in  relation  to  her 
chattels.^  (2)  As  we  have  seen,  the  common  law  made  the  law 
of  the  nobles  the  law  for  all.     Brissaud^  tells  us  that  "community 

^  Cp.  these  two  passages  of  Bracton;  (i)  f.  32a,  *'  Omnia  quae  uxoris  sunt,  sunt 
ipsius  viri,  nee  habeat  uxor  potestatem  sui,  sed  vir ;  "  and  (2)  f.  429a  (speaking  of 
land),  **  Res  tamen  propria  uxoris  et  vir  ejus  custos,  cum  sit  caput  mulieris,  et  in  quo 
casu  non  respondebitur  viro  sine  uxore  nee  e  contrario." 

2  Vol.  i  625-630. 

'  P.  and  M.  ii  430,  if  the  lay  lawyer  "  had  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 ; " 
below  526-527. 

*  Above  193-194.  °  Above  179. 

^  Below  525-526.  '  ii  1705,  1706. 


THE  MARRIED  WOMAN  525 

is  the  law  of  the  merchants ; "  that  "  in  the  country  the  land  does 
not  belong  to  the  peasant,  but  to  the  lord.  These  smaller  folk 
have  little  else  than  movables,  and  the  wife's  cannot  easily  be  dis- 
tinguished from  the  husband's ;  they  are  therefore  held  in  com- 
munity. Thus  community  is  the  system  which  prevails  among 
the  serfs  and  the  roturiers.  This  system  made  its  way  with  far 
greater  difficulty  among  the  class  of  nobles.  The  share  which 
belonged  to  the  wife  was  generally  very  moderate — unless  she  was 
the  heiress  of  a  fief  She  was  obliged  to  be  content  with  her  dower. 
In  time  the  system  of  community  was  extended  to  the  nobles,  but 
the  Queen  of  France  never  owned  her  chattels  in  community  with 
the  king — a  remarkable  survival  from  the  older  system."  Here  in 
England  the  situation  is  reversed.  The  law  of  the  smaller  folk 
disappears,  and  lives  on  only  in  some  of  the  borough  customs,  which 
treated  the  woman  who  carried  on  a  trade  apart  from  her  husband 
as,  in  some  respects,  independent ;  ^  while  the  Queen  of  England, 
certainly  as  early  as  1 343-1 344,  was  treated  by  the  courts  as  an 
unmarried  woman  in  respect  of  her  proprietary  capacity.  ^ 

In  this  section  I  shall  deal  with  the  status  of  the  married  woman 
while  the  marriage  lasts.  The  rules  as  to  the  succession  of  husband 
and  wife  to  each  other's  realty  I  have  already  dealt  with  :  ^  the  rules 
as  to  succession  to  personalty  I  shall  deal  with  in  the  following 
chapter.*  The  subject  will  fall  under  the  following  heads :  (i) 
Property,  (ii)  Contract,  (iii)  Criminal  and  civil  liability. 

(i)  Property. 

Over  the  wife's  freehold  interests  in  land  the  husband  has 
complete  power — but  only  for  so  long  as  the  marriage  lasts,  or, 
if  there  has  been  a  child  of  the  marriage  capable  of  inheriting, 
during  his  life.  When  the  husband  dies  the  land  will  go  to  the 
wife's  heirs,  if  she  has  predeceased  him ;  if  she  has  not,  she  may 
get  back  from  the  alienee  any  of  her  land  alienated  by  her 
husband  by  the  writ  of  entry  known  as  the  cui  in  vita}     The 

^Vol.  ii  387;  p.  and  M.  ii40o;  cp.  Hemmeon,  Burgage  Tenure  in  Mediaeval 
England  144-146. 

2Y.B.  17,  18  Ed,  III.  (R.S.)  430,  Queen  Philippa  was  the  plaintiff  in  a  Qtiare 
impedit ;  "/?.  Thorpe  defended  .  .  .  and  said  that  he  did  not  understand  that  he 
would  be  put  to  answer,  because  this  is  a  suit  taken  according  to  the  common  law, 
and  she  who  is  plaintiff  is  covert  baron,  and  is  not  in  a  condition  to  be  answered 
without  her  husband.  Hilary,  J.— Answer,  And  he  said  by  judgment  that  this  was 
fitting;  "  but  it  should  be  noted  that  by  the  statute  of  i  Henry  VIII.  c.  18,  which 
confirmed  the  letters  patent  granting  Queen  Katharine  her  dower,  she  is  not  only 
given  the  privileges  of  an  English  subject,  but  also  those  of  a  feme  sole — perhaps  only 
ex  abundanti  cautela.  It  was  clearly  a  convenient  rule,  seeing  that  the  king  could 
not  be  sued  at  all  ;  and  very  likely  this  was  the  origin  of  the  queen's  privilege. 

3 Above  185-197.  '•Below  550,  561. 

--  '  For  the  writ  see  above  22  ;  Y.B.  20,  21  Ed.  I,  (R.S.)  20,  "  Note  that  if  a  woman 
make  a  quit  claim  while  she  is  coverte,  and  quit  claim  her  dower  for  the  whole 
of  her  life,  it  is  worth  nothing." 


526  STATUS 

only  mode  in  which  the  wife  can  be  debarred  from  this  remedy  is 
by  making  a  conveyance  by  fine,  during  the  levying  of  which  she 
has  been  separately  examined.^  If  an  estate  is  conveyed  to  the 
husband  and  the  wife  they  take,  as  we  have  seen,  as  tenants  by 
entireties — both  own  the  whole.  Neither  during  the  marriage  has 
anything  of  which  he  or  she  can  dispose  save  by  fine.^  If  actions 
are  brought  concerning  the  wife's  land  they  must  be  brought  by  or 
against  both — otherwise  the  writ  will  abate. ^  The  wife  was  em- 
powered to  intervene  in  collusive  legal  proceedings  taken  by  the 
husband  in  order  to  deprive  her  of  her  land.*  In  these  rules  we 
see,  not  so  much  an  ownership  by  the  husband  of  the  wife's  land, 
as  a  developed  form  of  the  husband's  profitable  guardianship 
over  the  wife's  land  while  the  marriage  lasts.  It  is  this  idea  of 
guardianship,  defined  and  hardened  into  definite  rules,  which 
ultimately  gave  the  husband  an  estate,  but  a  peculiar  limited 
estate,  in  the  wife's  lands.  In  1310-1311  two  men  and  their 
wives  brought  Entry  ad  terminuni  qui  prceteriity  and  it  was  said 
in  the  writ  that  the  property  ought  to  revert  to  the  men  and  their 
wives.  Herle  excepted  to  the  writ  on  the  ground  that  the  re- 
version was  said  to  belong  to  the  husbands  as  well  as  to  the  wives. 
But  Bereford,  C.J.,  said,  *'  How  can  the  reversion  be  to  the  wives 
alone  whilst  they  are  covert  ?  The  reversion  of  the  demesne  can 
be  to  the  husbands  [with  their  wives],  although  the  reversion  of 
the  right  belongs  to  the  wives."*  As  Coke  puts  it,  **the  estate 
which  the  husband  gaineth  dependeth  upon  uncertainty  and  con- 
sisteth  in  privity."^ 

There  are  no  limitations  to  the  husband's  rights  over  his  wife's 
chattels.  From  the  end  of  the  thirteenth  century  the  common 
law  has  definitely  decided  that  marriage  makes  the  wife's  chattels 
absolutely  the  property  of  her  husband.^  Husband  and  wife 
cannot  own  chattels  in  common,  as  the  Year  Book  of  7  Henry 

1  Above  245.  *  Above  126,  128. 

8  It  was  just  about  Bracton's  time  that  the  point  was  settled  that  the  husband, 
if  sued  without  his  wife,  should  plead  in  abatement  of  the  writ,  P.  and  M.  ii  405- 
406  ;  Eyre  of  Kent  (S.S.)  ii  28-29  '.  above  523  ;  for  the  later  law  see  Comyn,  Digest, 
Baron  et  Feme  v. 

^  13  Edward  I.  st.  i  c.  3. 

"  Y.B.  4  Ed.  II.  (S.S.)  41  ;  in  this  case  Stanton,  J.,  differed  from  Hereford,  and 
the  writ  abated ;  but  Hereford's  view  prevailed  in  another  similar  case,  ibid  44  ;  see 
a  discussion  as  to  the  nature  of  this  estate  in  Y.H.  10  Hy.  VI.  Mich.  pi.  38,  Cottes- 
more said  that  the  husband  *'  aura  estat  en  le  franktenement  a  term  de  vie  sa  feme ;  " 
but  Chant  said,  "  Le  franktenement  n'est  pas  merement  en  le  baron,  eins  tout  en  le 
feme  " — pointing  out  that  her  estate  would  be  forfeited  for  her  felony ;  Newton 
adopted  the  first  view,  which  was  that  which  prevailed;  thus  it  followed  that  if  one 
feme  sole  leased  to  another,  and  both  married,  and  died,  the  one  husband  by  virtue 
of  his  estate  could  sue  the  other  for  rent  in  arrear. 

«  Co.  Litt.  351a. 

'  Hritton  i  227;  Y.BH.  30,  31  Ed.  1.  (R.S.)  522,  538  ;  32,  33  Ed.  I.  (R.S.)  186; 
33-35  Ed.  I.  (R.S.)  312;  12  Rich.  II.  33. 


THE  MARRIED  WOMAN  527 

VI.  says ;  ^  and  this  rule  is  accepted  with  all  its  consequences — 
the  husband,  for  instance,  cannot  give  his  wife  anything  during 
the  marriage ;  ^  and  if  a  married  woman  were  convicted  of  felony 
no  enquiry  was  made  as  to  her  chattels.^  It  is  a  rule  to  which 
there  are  no  real  exceptions.  We  may  perhaps  see  a  partial  ex- 
ception in  the  wife's  paraphernalia — the  dress  and  personal  orna- 
ments. These,  it  is  true,  survive  to  her,  but  only  if  the  husband 
has  not  alienated  them."^  That  the  husband  does  not  acquire  her 
choses  in  action  not  reduced  to  possession  ^  is  no  exception  at  all. 
As  we  have  seen,  a  man  has  not  got  things  which  he  does  not 
possess.^  He  has  a  right  to  reduce  them  to  possession  while  the 
marriage  lasts;  and  he  can  sue  for  them  alone. '^  If  he  does  not 
exercise  that  right  they  are  not  his.^ 

Chattels  real,  such  as  a  term  of  years,  a  wardship,  a  statute 
merchant  or  staple,  seem  to  be  halfway  between  land  and  "  pure 
personalty,"^  They  are  so  far  chattels  that  they  are  the  pro- 
perty of  the  husband  which  he  can  alienate,  as  he  can  alienate  any 
of  his  other  chattels.  They  are  so  far  land  that,  if  he  does  not 
alienate  them  in  his  lifetime,  they  will  survive  to  the  wife  free 
from  any  charges  created  by  the  husband.  ^"^  They  will  not  pass 
under  his  will ;  nor  will  they  go  with  his  other  chattels  to  his  next 
of  kin.  The  law  on  this  point  was  doubtful  in  Henry  IV. 's 
reign ;  ^^  but  it  seems  to  have  been  settled  in  this  way  at  least  as 
early  as  the  beginning  of  Henry  VI. 's  reign. ^^  This  solution  was 
well  suited  to  the  double  character  of  this  class  of  property. 

^Y.B.  7  Hy,  VI.  Mich.  pi.  6,  **  Le  baron  et  sa  feme  ne  poit  aver  biens  en 
commun." 

2  The  Eyre  of  Kent  (S.  S.)  ii  29.  ^  ibid  i  112. 

*P.  and  M.  ii  427,  428 ;  for  the  modern  rules  see  Tasker  v.  Tasker  [1895]  P-  i« 

'Y.B.  10  Hy.  VI.  Mich.  pi.  38  (p.  12). 

^  Above  9a  and  n.  10. 

7  Y.B.  3,  4  Ed.  II.  (S.S.)  150. 

sy.B.  5  Ed.  II.  (S.S.)  (1312)  248. 

'  **  As  to  this  which  is  said  of  a  lease  for  a  term  of  years  made  to  the  husband 
and  to  the  wife,  and  likewise  of  a  writ  of  wardship,  I  say  that  it  is  not  a  similar 
case  to  this  [i.e.  a  case  of  pure  personalty]  because  these  cases  are  in  the  realty, 
etc.,"  Y.B.  12  Rich.  II.  37  per  Thirning,  J. 

10  The  Eyre  of  Kent  (S.S.)  ii  29. 

1^  Y.B.  2  Hy.  IV.  Pasch.  pi.  14,  Debt  against  husband  and  wife  on  a  lease  for 
years,  "  Thirning. — Ceo  est  un  chatel  real  quel  vestue  auxi  bien  en  le  person  le  feme, 
come  en  le  person  le  baron,  et  tout  serra  entendue  pour  le  profit  del  feme,  et  eel 
profit  nous  ne  voilloms  pas  demitter  ou  devester  hors  de  sa  person,  tanque  elle  dis- 
agrea  quand  elle  est  sole,  et  le  voit  faire.  Et  fuit  dit  per  son  agreement,  quand  elle 
est  sole,  elle  est  charge  de  tout  le  ferme  incurue  en  temps  son  baron.  Hankford. — 
II  moy  semble  que  tout  sera  adjudge  en  le  baron,  car  il  poit  doner  le  terme  de  la 
feme,  et  deviser  .  .  .  cujus  contrarium  alii ;  ^^  cp.  Y.BB.  14  Ed.  III.  (R.S.)  280; 
45  Ed.  III.  Mich.  pi.  7. 

12  Y.B,  7  Hy.  VI.  Mich.  pi.  6,  '*  Quand  la  feme  continuason  estat  en  le  terme,  et 
or  est  eins  le  terme  apres  la  mort  le  baron,  elle  serra  adjuge  eins  en  son  melior  droit 
del  term,  i.e.  par  le  lessor,  et  nemy  par  le  baron  .  .  .  et  ceo  fuit  V  opinion  de  court ; " 
Co.  Litt.  351a  and  b. 


528  STATUS 

(ii)  Contract. 

The  married  woman  has  no  property,  and  therefore  she  can 
make  no  contracts.  But  this  incapacity  to  contract  rests  simply 
upon  her  proprietary  disabilities  ;  for  it  is  quite  clear  that  a  woman 
is  not  made  personally  incompetent  by  marriage.  Thus  a  married 
woman  could  be  an  executor  and  deal  like  any  one  else  with  the 
property  thus  held  by  her  en  autre  droit}  It  is  the  fact  that  the 
married  woman's  incapacity  to  contract  rests  only  upon  her  pro- 
prietary disability  which  has  permitted  its  modification  in  cases 
where  she  contracts  as  agent  of  the  husband.  Until  quite  the  end 
of  this  period  the  law  was  somewhat  uncertain  as  to  the  exact 
rationale  and  bearings  of  this  exception.  A  case  cited  by  Fitz- 
herbert  from  a  Year  Book  of  34  Ed.  I.  is  perhaps  our  earliest 
definite  authority  upon  this  matter.^  It  runs  as  follows:  *'A 
man  brought  debt  and  counted  that  the  wife  of  the  defendant 
obtained  fpom  him  ten  quarters  of  corn  which  came  to  the  profit 
of  the  defendant  (the  husband) ;  and  the  defendant  demurred  to 
this  count  on  the  ground  that  the  contract  of  the  wife  was  void, 
that  the  wife  was  not  liable  on  such  a  contract,  and  that  therefore 
the  husband  was  not  liable.  It  was  said  that  the  case  is  not 
similar  to  the  case  where  an  abbot  buys  something  which  comes 
to  the  profit  of  the  house,  by  reason  of  which  he  is  bound  by  the 
contract,  and  his  successor  also,  if  he  had  the  profit.  It  was  ad- 
judged that  the  plaintiff  should  take  nothing.  But  if  he  had  said 
that  the  defendant,  through  Alice  his  wife,  had  received  so  much 
to  his  profit,  he  would  have  recovered." 

The  statement  that  money  or  goods  "  had  come  to  the  profit 
of"  the  husband  was  often  used  in  argument  in  order  to  fix  him 
with  liability  on  his  wife's  contract ;  ^  but  the  phrase  was  too 
vague.  It  barred  out  certain  cases ;  but  it  did  not  supply  a  suffi- 
ciently accurate  test.  Suppose  the  goods  had  been  profitable  to 
the  husband,  but  had  yet  been  supplied  contrary  to  his  wish. 
Suppose,  for  instance,  that  an  adulterer  had  carried  off  the  wife, 
and  decked  her  out  in  new  clothes,  and  that  then  the  wife  had 
returned  to  the  husband  and  had  worn  the  clothes — could  it  be 
said  that  he  must  pay  if  sued  by  the  person  who  had  supplied 
them?*  Then,  again,  the  analogy  with  the  person  professed, 
who  was  dead  in  the  law,  was  a  tempting  analogy,  and  lived  long,^ 

1  Co.  Litt.  351b.     See  Johnson  v.  Clark  [1908]  i  Ch.  at  pp.  312-318  for  an  ex- 
cellent exposition  of  the  common  law  principle  by  Parker,  J. 
2Fitz.,  Ab.  Dette  pi.  163. 

3  The  Eyre  of  Kent  (S.S.)  ii  46-47;  Y.B.  6  Ed.  II.  (S.S.)  155. 

4  Y.B.  II  Hy.  IV.  Mich.  pi.  27,  "  Hankford. — Si  un  advowterer  prent  le  feme 
d'un  home  et  luy  vest  bien  de  novel  draps,  la  baron  reprendra  le  feme  ovesque  les 
draps." 

5  See  Y.B.  20  Hy.  VI,  Hil.  pi.  19  (p.  21)  when  it  is  used  by  Markham. 


THE  MARRIED  WOMAN  529 

because  it  could  be  usefully  employed  to  illustrate  the  married 
woman's  delictual  liability ;  but  it  had  little  bearing-  upon  her 
contractual  capacity.  The  fallacy  underlying  it  had  been  exposed 
by  Bereford,  CJ.,  in  1312;^  and  as  late  as  the  reign  of  Henry 
VII.  it  was  necessary  to  expose  it  again. ^  As  the  Year  Books 
point  out,  the  wife,  though  suffering  from  proprietary  disability, 
is  yet  a  living  person,  and  capable  of  various  activities.  It  gradu- 
ally came  to  be  seen  that  the  real  ground  of  the  married  woman's  in- 
capacity to  contract  was  her  incapacity  to  own  property  on  her  own 
account.  But  she  could,  as  we  have  seen,  own  property  in  autre 
droit ;  she  could  act  as  the  agent  or  servant  of  her  husband ;  and, 
that  being  the  case,  her  contracts,  if  previously  authorized  or  sub- 
sequently ratified  by  him,  were  valid,  because  they  were  his 
contracts.^  The  validity  of  her  contracts  therefore  depended  upon 
the  question  whether  she  had  made  contracts  as  the  agent  of  her 
husband,  and  whether  these  contracts  had  been  previously  author- 
ized or  subsequently  ratified  by  him.  In  Henry  VI  I. 's  reign 
this  was  clearly  stated  by  Fineux,  C.J.^  **If,"  he  said,  **a 
married  woman  makes  a  contract,  or  buys  anything  in  the  market, 
the  contract  is  void.  .  .  .  But  my  wife  can  buy  a  thing  to  my 
use,  and  I  can  ratify  that ;  and  so,  if  I  command  my  wife  to  buy 
necessaries,  and  she  buys  them,  I  shall  be  bound  by  reason  of  my 
general  authority  given  to  her.  And  if  my  wife  buys  things  for 
my  household,  such  as  bread,  etc.,  and  I  know  nothing  of  it,  even 
though  they  be  consumed  in  my  household,  I  shall  not  on  that 
account  be  charged."  It  is  clear  that  the  law  has  by  the  end  of 
this  period  arrived  at  its  final  position.  These  principles  were 
more  elaborately  stated,  but  substantially  reproduced,  in  1663  in 
the  case  of  Manby  v.  Scott}     But,  since  the  case  of  Manby  v. 

^  "  The  cases  are  not  similar.  For  in  the  one  case  the  woman  is,  in  virtue  of 
her  profession,  as  one  that  is  dead,  so  that  she  cannot  claim  aught  by  way  of  law. 
But  in  the  other  case  the  wife  can  claim  along  with  her  husband  and  otherwise," 
Y.B.  5  Ed.  II.  (S.S.)  212. 

2  Y.B.  27  Hy.  VIII.  Mich.  pi.  3,  **  Et  n'est  semble  al  cas  ou  on  fist  contract  ove 
un  moin,  car  la  est  un  disabilite  en  le  moin  issint  que  I'agrement  du  Soveraine  ne 
poit  faire  ceo  bon ;  mes  issint  n'est  en  une  femme  coverte ;  donques  si  c'est  assump- 
tion soit  bon  tanque  le  baron  disagre,  et  il  appiert  ici  que  le  baron  ad  agre,  pur  que 
ce  agreement  fait  I'assumption  bon;"  to  the  same  effect  Y.B.  3  Hy.  VI.  Hil.  pi.  i 
per  Babington,  the  wife  is  not  a  *'  mort  person  en  ley  ;  "  for  the  status  of  the  person 
professed,  see  P.  and  M.  i  416-419 ;  and  for  some  modifications  of  the  theory  that  the 
person  professed  was  wholly  dead  see  Y.B.  5  Ed.  II.  (S.S.)  (1312)  xxxvi. 

3"Un  femme  coverte  n'ad  ascun  volunte,  mes  la  volcnte  del  baron  est  sa 
volonte ;  et  donques  quand  le  baron  agre  a  un  acte  fait  per  sa  femme,  cest  agrement 
fait  cest  Tacte  le  baron,"  Y.B.  27  Hy.  VIII.  Mich.  pi.  3.  Some  perception  of  this 
appears  as  early  as  1313  in  Hedon's  argument  in  the  Eyre  of  Kent  (S.S.)  ii  48 — 
'♦  We  tell  you  that  if  any  contract  were  made  by  our  wife  it  was  made  without  our 
consent  and  against  our  will ;  and  we  do  not  think  that  the  husband  is  liable  under 
a  contract  made,  etc.,  during  coverture." 

4  Y.B.  21  Hy.  VII.  Mich.  pi.  64. 

^  I  Lev.  4 — the  report  of  the  case  in  the  King's  Bench ;  i  Sid.  log — the  report 
of  the  case  in  the  Exchequer  Chamber;  2  S.L.C.  (loth  ed.)  433. 

VOL.  HI.— 34 


530  STATUS 

Scott,  one  exception  has  been  engrafted  on  to  the  law.  Holt,  CJ. , 
decided  in  the  case  of  James  v.  Warren  in  1 707  that  if  a  man 
wrongfully  deserts  his  wife,  and  leaves  her  destitute,  she  is  his 
"agent  of  necessity"  and  can  pledge  his  credit  for  necessaries.^ 
Up  to  that  time,  and  according  to  the  opinion  of  the  majority  of 
the  judges  in  Manby  v.  Scotty  the  wife  had  in  these  circumstances 
no  remedy  at  common  law,  but  only  a  remedy  in  the  Chancery 
or  in  the  ecclesiastical  courts.^  But  there  was  a  strong  dissentient 
minority — the  majority  of  the  judges  in  the  King's  Bench,  ^  and 
the  minority  of  the  judges  in  the  Exchequer  Chamber,^  holding 
that  she  had  also  a  remedy  at  common  law.  Though  this  minor- 
ity opinion  was  probably  new  law,  and  inspired  by  a  desire  to 
encroach  on  the  province  of  the  Chancery  and  the  ecclesiastical 
courts,  it  was  endorsed  by  Holt,  and  has  become  a  settled  prin- 
ciple of  the  modern  common  law.^ 

(iii)  Criminal  and  civil  liability. 

The  married  woman's  capacity  to  commit  crimes  is  almost 
normal.^  Even  at  the  present  day  the  effect  of  marriage  upon 
criminal  liability  is  small ;  and  in  Bracton's  day  it  was  still  smaller. 
In  his  day  the  married  woman  was  not  guilty  as  an  accessory 
merely  because  she  received  and  sheltered  her  husband,  nor  was 
she  bound  to  accuse  him  of  a  felony  which  to  her  knowledge  he 
had  committed ;  ^  and  later  it  was  decided  that  she  could  not  be 
guilty  of  stealing  from  her  husband.^  But  in  other  respects 
marriage  made  no  difference.^  The  law  remained  the  same  with 
respect  to  the  more  heinous  crimes,  such  as  treason  or  murder ;  ^^ 
but,  later,  it  was  slightly  altered  in  the  case  of  certain  other  crimes, 
such  as  burglary  or  larceny,  by  the  growing  tendency  of  the  judges 
to  presume  that  such  crimes,  if  committed  in  her  husband's  com- 
pany and  by  his  command,  were  committed  under  his  coercion.'^ 

1  '•  If  a  man  runs  away  from  his  wife,  or  turns  her  away,  and  leaves  her  not 
wherewithal  to  maintain  herself,  then  he  gives  his  wife  credit  for  money  or  neces- 
saries," Holt  (K.B.)  104. 

2  "  Que  (coment  le  feme  ne  poiet  lier  le  baron  per  sa  contract  uncore)  la  feme 
nest  destitute  de  remedy,  sed  per  le  common  ley  le  Chancery  poit  order  luy  neces- 
saries vel  al  miens  le  cannon  ley  (que  est  subservient  a  ceo)  in  le  Spiritual  Court," 
I  Sid.  at  p.  124. 

3 1  Lev.  at  pp.  4-5.  4  J  Sid.  at  pp.  iii  seqq. 

5  Montague  v.  Benedict  (1825)  3  B.  and  C.  at  p.  635  per  Bayley,  J. ;  Debenham 
V.  Mellon  (1880)  6  A.C.  at  p.  31. 

6Cp.  Fitz.,  Ab.  Corone  pi.  383. 

■^f.  151b;  Staunford,  P.C.  i.  c.  19;  and  cp.  the  record  of  37  Ed.  III.  cited  by 
Hale,  P.C.  i  47. 

8  Fitz.,  Ab.  Corone  pi.  455,  citing  a  report  of  Hil.  21  Hy.  VI. ;  Hale,  P.C.  i  516. 

"Bracton  f.  151b,  "Desicut  sunt  participes  in  crimine,  ita  erunt  participes  in 
poena." 

10  Hale,  P.C.  i  45. 

"Fitz.,  Ab.  Corone  pi.  160 (M.  2  Ed.  III.)  the  law  seems  doubtful;  ibid  pi.  igg 
(27  Ass.  40)  the  rule  is  acted  on. 


THE  MARRIED  WOMAN  531 

But,  of  course,  this  did  not  apply  where  these  conditions  were  not 
present ;  and  if  they  were  present,  the  presumption  was  rebuttable.^ 
It  is  said  that  the  fact  that  the  woman  could  not  plead  her  clergy 
made  the  judges  the  more  willing  to  allow  her  the  benefit  of  this 
presumption.^ 

We  have  seen  that  the  principles  which  underlie  civil  liability 
are  very  different  from  those  which  underlie  criminal  liability.^ 
Hence  the  rules  as  to  the  civil  liability  of  the  married  woman  are 
far  from  being  normal.  They  are  based  mainly  upon  the  two 
principles  (i)  that  the  married  woman  is  capable  of  committing 
a  wrong,  and  (2)  that  she  has  peculiar  proprietary  disabilities. 

Marriage  is  a  gift  of  the  wife's  chattels  to  her  husband.  It  is 
only  fair,  therefore,  that  the  husband  who  takes  the  benefit  should 
bear  the  liability.  Hence  the  husband  could  be  made  liable  in  a 
joint  action  for  his  wife's  ante-nuptial  debts  '^  and  torts.  But  the 
debt  or  tort  is  his  wife's ;  and  the  liability  therefore  only  attaches 
to  him  qua  husband.  Therefore  if  she  dies  he  ceases  to  be  liable ; 
and  if  he  dies  this  liability  does  not  attach  to  his  executors.^ 

On  similar  principles,  if  the  wife  committed  a  trespass  to  the 
person  during  the  marriage  she  was  in  theory  liable ;  ^  and  that 
liability  was  enforced  in  a  joint  action  against  husband  and  wife.'^ 
"  If  a  married  woman,"  runs  a  note  in  the  Register,  "beats  a  man 
or  another  woman,  the  name  of  the  husband  must  be  inserted 
with  the  name  of  the  wife  in  the  writ,  though  he  is  not  guilty."  ^ 
But  seeing  that  the  liability  was  the  wife's,  here  too  the  husband's 
liability  in  respect  of  his  wife,  ended  with  the  marriage.^  If  the 
wife  committed  a  tort  in  respect  of  realty  (such  as  disseisin  or 

1  Hale,  P.C.  i  46. 

2  There  is  a  curious  case  noted  in  Fitz.,  Ab.  Cor  one  pi.  461  in  which  apparently 
a  woman  had  her  clergy;  Hale,  P.C.  i  45,  46,  does  not  altogether  approve  of  the 
theory  in  the  text. 

'I  Above  373-377' 

4  The  Eyre  of  Kent  (S.S.)  ii  44-45,  48;  Y.B.  4  Ed.  II.  (S.S.)  153-154— in  all 
these  cases  the  principle  is  assumed. 

5Y.BB.  19  Ed.  III.  (R.S.)  390,  392;  49  Ed.  III.  Mich.  pi.  5 ;  12  Hy.  VII.  Trin. 
pi.  2  (pp.  23,  24) ;  20  Hy.  VI.  Hil.  pi.  19,  "  Mettons  que  feme  sole  soit  oblige  a  moy, 
etc.,  et  prend  baron,  le  baron  sera  charge  del  debte  durant  la  vie  sa  feme ;  mes  si  elle 
devie,  le  baron  est  discharge.  Et  en  mesme  le  maniere  un  home  fait  a  moy  trespass, 
et  entre  religion,  I'abbe  sera  charge  vers  moy  durant  la  vie  son  Commoin,  et  s'il  devie, 
devant  que  jeo  recovre,  I'abbe  sera  discharge  ;  "  cp.  also  9  Ed.  IV.  Trin.  pi.  32.  In 
respect  of  civil  liability  for  tort  the  parallel  with  the  person  professed  was  close, 
P.  and  M.  i  419. 

8  Y.B.  36  Hy.  VI.  p.  I  pi.  I  j>er  Prisot,  C.J.,  "  Si  brief  de  trespass  de  batery  soit 
port  envers  le  baron  et  sa  feme,  supposant  que  ils  deux  aura  batu  le  plaintif,  et  le 
baron  appiert,  et  la  feme  nemy,  le  baron  respondra  sans  la  feme,  pur  ceo  que  Taction 
est  port  auxi  bien  de  son  tort,  come  de  le  tort  de  sa  feme ;'"  cp.  39  Ed.  III.  Trin. 
p.  18 ;  Fitz.,  Ab.  Trespass  pi.  208 ;  30  Ass.  pi.  19. 

'Y.B.  36  Hy.  VI.  p.  2,  *•  Le  baron  poit  respondre  sans  feme,  mes  nemy  e 
contra." 

^  Register  f.  105b — the  rule  is  the  same  in  the  case  of  the  person  professed. 

^  Above  n.  5  ;  cp.  Re  Beauchamp  [1904]  i  K.B.  at  p.  581. 


532  STATUS 

waste)  jointly  with  her  husband,  she  was  equally  guilty  with  him ; 
and  she  could  be  sued  after  the  husband's  death  if  she  took  the 
benefit  of  the  tort  by  remaining  in  possession  of  the  land  in  respect 
of  which  the  tort  was  committed.^  On  the  other  hand,  as  she 
could  own  no  chattels,  it  seems  to  have  been  thought  that  she 
could  not  be  guilty  of  the  tort  of  appropriating  them.^ 

The  civil  liability  of  husband  and  wife  for  the  wife's  trespasses 
to  the  person,  and  perhaps  to  goods,  was  probably  the  same 
whether  the  tort  was  ante-  or  post-nuptial ;  and  the  same  principles 
were  applied,  as  we  have  seen,  to  their  liability  for  the  wife's  ante- 
nuptial debts.  Very  different  was  the  rule  as  to  liability  for  the 
wife's  post-nuptial  debts.  As  we  have  seen,  the  wife's  contract  was 
void,  unless  she  had  contracted  as  the  agent  of  her  husband.  Un- 
less, therefore,  the  husband  was  liable,  there  was  no  liability  at 
all* 

Thus,  at  the  end  of  this  period,  the  common  law  had,  by  a 
series  of  logical  deductions  from  a  few  fixed  principles,  evolved 
a  wholly  original  set  of  rules  as  to  the  status  of  married  women. 
Unfortunately  these  few  principles  attained  to  fixity  at  too  early 
a  period.  Following  the  line  of  least  resistance,  the  law  rejected 
all  idea  of  a  community  of  property  between  husband  and  wife, 
and  lost  thereby  the  opportunities  for  development  which  are 
afforded  by  a  system  which  recognizes  such  community.  The 
married  woman  could  own  no  personal  property.  She  could 
therefore  make  no  contracts  on  her  own  account,  and  her  husband 
was  made  liable  for  her  torts.  She  lost  all  power  over  her  realty 
during  the  marriage ;  and  the  refusal  by  the  common  law  to  re- 
cognize the  interest  of  one  for  whom  another  holds  property  in 
trust  prevented  any  variation  or  deviation  from  these  strict  rules 
by  means  of  settlements  or  agreements  made  before  marriage. 
Her  rights  alter  the  death  of  her  husband  might  be  affected  in 
this  way,  but  not  her  rights  during  the  marriage.  On  the  other 
hand,  systems  which  recognize  such  community  were  able  to  give 
effect  to  newer  ideas  which  limit  the  husband's  control  in  the  in- 
terest of  the  wife ;  and  they  were  able  to  give  effect  to  agreements 

^Y.B.  39  Hy.  VI.  Hil.  pi.  8  per  Laicon,  "Si  le  baron  et  sa  feme  disseisent  un 
home,  et  Assise  est  port  vers  eux,  et  le  pleintif  recovre,  et  le  baron  devie,  execution 
sera  fait  envers  le  feme  de  damages  si  bien  come  de  principal  .  .  . ;  "  per  Prisot, 
C.J.,  '*  Si  le  baron  et  sa  feme  ont  un  mesme  occupacion,  et  le  baron  devie,  la  feme 
sera  charge  per  le  Statut  de  Gloucester  per  le  mesne  occupacion  en  la  vie  son  baron 
en  Assise  ou  per  brief  de  Trespass :  car  les  profits  seront  ajuges  a  luy  en  Ley  si  bien 
come  a  son  baron." 

2  Fitz.,  Ab.  Brief e  pi.  644  (13  Rich.  II.),  detinue  sur  trover  should  be  brought 
against  the  husband  alone ;  Y.B.  38  Ed.  III.  Hil.  pi.  i,  the  same  rule  as  to  detinue 
sur  bailment ;  there  seems  to  be  no  reason  why  the  woman  should  not  be  liable  for 
trespass  to  goods  as  much  as  for  trespass  to  the  person — but  I  have  found  no  clear 
authority,  cp.  last  note. 

8  Above  529. 


THE  MARRIED  WOMAN  533 

made  between  the  parties  before  marriage.  The  common  law  had 
no  place  for  these  ideas,  and  therefore  the  alterations  in  the  status 
of  the  married  woman  which  a  changed  order  of  ideas  demanded 
were  unable  to  take  place  within  its  sphere.  They  were  made  in 
the  rival  system  of  equity,  which  gave  effect  to  the  demand  for  an 
improvement  in  the  status  of  the  married  woman  by  creating  for 
her  a  peculiar  proprietary  capacity.^  But  the  system  which  equity 
constructed  was  developed  in  a  spirit  of  direct  antagonism  to 
common  law  rules ;  and  therefore  the  law  on  this  subject  came 
to  consist  of  two  halves  more  than  usually  divergent.  The  equit- 
able rules  were  designed  for  the  purpose  of  giving  rights  to  the 
married  woman.  They  therefore  subjected  her  to  very  few  liabili- 
ties. Her  liabilities  remained  for  the  most  part  as  at  common  law. 
No  alteration  was  made  in  the  rules  as  to  her  liability  for  crime 
and  tort ;  and  such  liability  upon  her  contracts  as  the  rules  of 
equity  permitted  was  a  carefully  guarded  liability.  The  position, 
therefore,  of  the  married  woman  became  as  unduly  advantageous 
in  equity  as  it  was  unduly  disadvantageous  at  common  law.  When 
the  legislature  adopted  the  equitable  rules,  and  applied  them  with 
some  modifications  to  all  married  women,  many  curious  legal  rules, 
many  doubtful  problems,  and  some  injustice  resulted  from  the  im- 
perfect fusion  of  these  two  antagonistic  sets  of  legal  principles. 

1  For  (he  beginnings  of  the  rules  of  equity  on  this  subject  see  Bk.  iv.  Pt.  I.  cc. 
4  and  8. 


CHAPTER  V 

SUCCESSION  TO  CHATTELS 

IN  all  branches  of  the  mediaeval  common  law  there  was  a  great 
dividing  line  between  the  rules  of  law  relating  to  things  which 
could  be  recovered  by  the  real  actions  and  the  rules  relating  to 
things  which  could  be  recovered  by  the  personal  actions.  In  the 
law  of  succession  to  chattels  that  dividing  line  has  been  deepened 
and  perpetuated,  firstly  by  the  action  of  the  common  law  courts 
in  abandoning  jurisdiction  over  large  parts  of  it,  secondly  by  the 
action  of  the  ecclesiastical  courts  in  assuming  that  jurisdiction,  and 
thirdly  by  the  action,  in  later  times,  of  the  court  of  Chancery  in 
encroaching  upon  the  jurisdiction  both  of  the  common  law  and  of 
the  ecclesiastical  courts.^  The  differences  between  rules  of  law  re- 
sulting from  development  within  the  real  or  personal  scheme  of 
actions  were  great :  the  differences  resulting  from  development, 
not  merely  within  different  schemes  of  actions  belonging  to  the 
same  jurisdiction,  but  within  several  wholly  different  jurisdictions, 
were  necessarily  far  greater  and  more  permanent.  It  is  for  this 
reason  that  the  differences  between  realty  and  personalty  were, 
since  the  disuse  of  the  real  actions,  most  marked  in  the  law  of 
succession.  In  this,  as  in  other  branches  of  English  law,  the  law 
courts  have  developed  a  system  of  rules  from  a  basis  of  primitive 
custom ;  but  in  this  branch  of  the  law  these  rules  have  been  de- 
veloped, not  by  one  set  of  courts  administering  one  set  of  prin- 
ciples, but  by  three  sets  of  courts  administering  respectively  the 
principles  of  the  common  law,  the  principles  of  the  canon  law, 
and  the  principles  of  equity ;  while  the  principles  of  equity  were 
themselves  a  mixture  of  the  principles  of  the  common  law,  of 
the  canon  law,  of  the  discretion  of  the  chancellor,  and,  later,  of  the 
practice  of  the  court  of  Chancery  as  fixed  by  decided  cases.  The 
line  between  these  jurisdictions  has  always  been  a  somewhat  waver- 
ing line.  There  have  been  at  different  periods  many  encroach- 
ments or  attempts  at  encroachment  along  debatable  frontiers. 
There  has  also  been  much  borrowing  of  principles  and  rules, 
which,  when  borrowed,  have  been  modified  in  the  jurisdiction  to 
which  they  have  been  transplanted.     Hence  it  is  that  the  law  of 

'  Vol.  i  625-630. 

534 


THE  LAST  WILL  535 

succession  is  historically  one  of  the  most  variegated,  and,  there- 
fore, one  of  the  most  complicated  of  all  branches  of  English  law.^ 
In  this  period  there  are  only  the  efforts  of  two  sets  of  courts — 
the  common  law  and  the  ecclesiastical — to  be  considered.  In  the 
ensuing  sections  I  shall  try  to  give  some  account  of  the  manner  in 
which  they  have  laid  the  foundations  of  the  present  law.  My 
arrangement  of  the  subject  will  be  as  follows: — §  I.  The  Last 
Will ;  §  2.  Restrictions  on  Testation  and  Intestate  Succession ; 
§  3 .  The  Representation  of  the  Deceased. 

§  I.  The  Last  Will^ 

We  have  seen  that  in  the  latter  half  of  the  thirteenth  century 
wills  of  realty  had  become  legally  impossible  unless  they  were 
allowed  by  some  special  custom.  ^  Wills  of  personalty,  on  the  other 
hand,  were  not  only  legal  but  usual ;  for,  unless  death  was  so  sudden 
that  there  was  no  opportunity  for  confession,  to  die  intestate  was 
probably  to  die  unconfessed  ;  and  of  the  future  state  of  a  person 
who  had  thus  died  there  could  be  no  sure  and  certain  hope.*  Thus 
there  arose  a  feeling  that  intestacy,  except  in  case  of  sudden  death, 
was  disgraceful.  We  have  seen  that  there  are  traces  of  this  feeling 
as  early  as  the  reign  of  Cnut.^  It  was  intensified  after  the  Conquest. 
Though  Henry  I.  had  promised  in  his  charter  ^  that  the  chattels  of 
an  intestate  who  had  died  suddenly  should  be  distributed  by  the 
wife,  children,  and  men  of  the  deceased  for  the  good  of  his  soul, 
Glanvil  asserts  that  the  lord  was  entitled  to  all  the  chattels  of  his 
man  who  had  died  intestate/  Though  Magna  Carta  ^  had  enacted 
that  a  distribution  of  an  intestate's  goods  should  be  made  "per 
visum  ecclesiae,"  so  prevalent  was  the  feeling  against  intestacy  that 
Bracton  was  obliged  to  insist  that  the  lord  could  not  seize  the 
goods  of  his  man  who  had  died  suddenly  and  intestate,  and  that 
such  a  person  was  not  necessarily  deserving  of  punishment.^     That 

1  See  Swinburn,  Testaments  Epilogue,  "  All  the  limmes  and  bones  of  this  my 
testamentarie  picture,  were  not  only  heretofore  out  of  joint ;  but  scattered  and  dis- 
persed farre  asunder,  some  amongst  the  laws  civill,  some  amongst  the  decrees  and 
decretals,  some  amongst  our  provinciall  constitutions,  and  some  amongst  the  lawes, 
statutes,  and  customes  of  this  Realme." 

2  Tliere  are  many  wills  of  this  period  already  in  print,  see  Testamenta  Eboracensia 
(Surt.  Soc.) ;  Richmondshire  Wills  (Surt.  Soc.) ;  Wills  and  Inventories  (Surt.  Soc.) ; 
Furnivall,  The  Fifty  Earliest  English  Wills  in  the  Court  of  Probate,  London  (Early 
Engl.  Text  Soc.) ;  Nicolas,  Testamenta  Vetusta ;  Sharpe,  Calendar  of  Wills  in  the 
Court  of  Hustings.     For  some  specimens  of  different  dates  see  App.  IV. 

3  Above  75-76,  271. 

■*  P.  and  M.  ii  354-357 ;  vol.  i  626-627 ;  that  the  horror  of  intestacy  did  not  exist  in 
case  of  sudden  death  is,  I  think,  proved  by  Gross,  Mediaeval  Law  of  Intestacy, 
H.L.R.  xviii  120,  121. 

5  Vol.  ii  93.  ''§7. 

7  vii  16.  ^  (1215)  §  27 ;  vol  i  626. 

^  f.  60,  "  Item  si  liber  homo  intestatus  et  subito  decesserit,  dominus  suus  nil 
intromittat  de  bonis  defuncti,  nisi  de  hoc  tantum,  quod  ad  ipsum  pertinuerit,  id  est 


536  SUCCESSION  TO  CHATTELS 

there  was  real  need  to  state  this  rule  is  apparent  from  the  stories  of 
the  chroniclers/  and  the  extensive  claims  made  by  the  pope  ^  and 
by  feudal  lords.  ^  Thus  it  happened  that  the  majority  of  persons 
who,  having  property  to  leave,  died  peaceably  and  regularly,  died 
testate. 

We  have  seen  that  in  this  period  jurisdiction  over  the  probate 
of  such  wills  belonged  to  the  ecclesiastical  courts.^  Matters  relating 
to  their  making,  revocation,  and  interpretation  fell  also  within  their 
jurisdiction.  For  this  reason  the  greater  part  of  the  law  relating  to 
them  was  developed  under  the  influence  of  the  canon  or  civil  law. 
But  at  the  end  of  this  period  many  of  the  rules  so  evolved  were 
recognized  and  accepted  by  the  common  lawyers ;  while  in  other 
cases  these  rules  were  altered  or  modified  to  suit  the  principles  of 
the  common  law.  In  this  way  the  law  relating  to  wills,  though 
evolved  by  a  different  set  of  courts  and  under  the  influence  of  a 
different  set  of  ideas,  was  becoming  an  integral  part  of  English 
law — a  process  assisted  by  the  fact  that,  as  the  church  had  not  got 
this  large  testamentary  jurisdiction  abroad,  the  canon  law  had  no 
very  general  rules  upon  these  matters.^ 

In  this  section  I  shall  deal,  firstly,  with  the  making,  the 
revocation,  and  the  interpretation  of  a  will ;  secondly,  with  the 
capacity  to  make  a  will ;  and  thirdly,  with  some  of  the  clauses  found 
in  wills  of  this  period. 

The  Makings  Revocation,  and  Interpretation  of  a  Will 

After  the  Conquest,  as  before,  we  get  documents  of  a  very 
indeterminate  character,  which  partake  quite  as  much  of  the 
character  of  settlements  or  conveyances  as  of  wills.^  Indeed,  there 
is  very  little  distinction  to  be  drawn  between  them  and  wills.  The 
ordinary  conveyance,  for  instance,  often  took  the  form  of  a  royal 
writ;'^  and  Henry  II.  left  a  will  in  this  form.^  But  by  the 
beginning  of  the  thirteenth  century  the  will  had  become  differ- 
entiated from  other  forms  of  conveyance  by  the  fact  that  it 
appointed  executors.  Glanvil  recognizes  their  appointment  as  a 
usual  part  of  a  will ;  ^  and  though  executors  were  not  appointed  eo 

quod  habeat  suum  herioth,  sed  ad  ecclesiam  et  ad  amicos  pertinebit  executio  bonorum, 
nullam  enim  meretur  pcenam  quamvis  decedat  intestatus  ;  "  Gross  points  out  (H.L.R. 
xviii  127)  that  in  spite  of  Bracton's  words  many  boroughs  thought  it  necessary  to 
have  in  their  charters  an  express  provision  that  the  goods  of  burgesses  dying  intestate 
should  not  be  confiscated. 

1  P.  and  M.  ii  355,  356.  "ibjd  357;  Bl.  Comm.  ii  495. 

3 Gross,  H.L.R.  xviii  124, 125.  '•Vol.  i  625-626. 

^Ibid  629. 

*See  e.g.  Ramsay  Cart,  i  252  (1133-1150) ;  vol.  ii  95. 

'  Above  226. 

^  Madox,  Form.  no.  767;  Nicolas,  Test.  Vet.  1-4. 

^  vii  6,  •'  Testamenti  autem  executores  debent  ii  quos  testator  ad  hoc  elegerit  et 
quibus  curam  ipsam  commiserit.  Si  vero  testator  nullos  ad  hoc  nominaverit  possunt 
propinqui  et  consanguinei  ipsius  defuncti  ad  id  faciendum  se  ingerere." 


THE  LAST  WILL  537 

nomine  in  Henry  II.'s  will,  legacies  were  left  to  be  distributed  in 
pious  uses  "  by  the  hand  and  view  "  of  certain  named  persons.^  In 
King  John's  will,^  and  in  other  wills  of  almost  the  same  date,^  there 
is  an  appointment  of  executors.  There  is  reason  to  think  that  the 
appropriation  by  the  ecclesiastical  courts  of  jurisdiction  over  matters 
testamentary  in  the  thirteenth  century  tended  to  give  greater 
prominence  to  this  characteristic  of  a  will,  and  to  differentiate 
completely  wills  of  chattels  from  other  forms  of  conveyance.  For, 
though  the  origin  of  the  executor  must  be  looked  for  in  regions  far 
removed  from  the  influence  of  Roman  law,^  the  civil  and  canon 
lawyers  who  sat  in  the  ecclesiastical  courts  naturally  identified  the 
executor  with  the  hceres  of  Roman  law ;  and,  under  the  influence 
of  the  clear  Roman  rule,  which  laid  it  down  that  the  essence  of  a 
testamentum  was  the  appointment  of  an  hceres^  they  laid  it  down 
that,  though  there  might  be  an  expression  of  the  ultima  voluntas, 
there  could  be  no  true  testamentum  without  the  appointment  of  an 
executor.  This  rule  was  laid  down  by  Lyndwood  in  the  fifl:eenth 
and  by  Swinburn  in  the  latter  part  of  the  sixteenth  century ;  ^  and 
it  is  repeated  by  West  at  the  beginning  of  the  seventeenth  century.^ 
But,  seeing  that  in  the  absence  of  an  executor  the  ultima  voluntas 
would  be  given  effect  to  by  the  ordinary '^  by  means  of  the 
appointment  of  an  administrator,^  the  rule  became  meaningless  and 
disappeared.  Similarly  the  codicil,  which,  if  it  existed  with  a 
testamentum,  was  treated  as  part  of  it,  was  regarded,  if  it  stood 
alone,  merely  as  an  ultima  voluntas.^ 

The  will  might  be  either  written  or  nuncupative,  i.e.  verbal ;  or 
partly  written  and  partly  nuncupative.^^    It  followed  therefore  that 

i  P.  and  M.  ii  332,  333.  2  Nicolas,  Test.  Vet.  5. 

3  Ibid  47  (will  of  William  Marshall,  Earl  of  Pembroke,  1219) ;  Madox,  Form,  no 
768. 

^  Below  563-564. 

^  Lyndwood  172  sub  voc.  Intestatis ;  173  sub  voc.  Voluntatem  Ultimam ;  cp. 
Swinburn  8b,  "  Now  if  you  will  aske  me  what  kind  of  perfection,  or  what  speciall 
thing  this  is,  without  the  which  the  wil  how  perfect  soever  otherwise  is  no  testa- 
ment. ...  It  is  the  naming  or  appointment  of  an  Executor  (who  in  the  civil  law 
is  called  Haeres,  heire).  This  is  said  to  be  the  foundation,  the  substance,  the  head, 
and  is  indeed  the  true  formall  cause  of  the  Testament,  without  which  a  will  is  no 
proper  Testament."     The  first  edition  of  Swinburn's  book  was  published  in  1590. 

fi "  A  testament  is  defined  by  most  men  '  voluntatis  nostrae  justa  sententia  de  eo 
quod  quis  post  mortem  suam  fieri  velit,'  for  the  perfecting  of  which  definition  it 
seemeth  good  to  add  these  words,  '  cum  executoris  institutione,*  for  without  an 
executor  there  can  be  no  testament,  for  the  appointment  of  an  executor  is  the  true 
formal  cause  thereof,  giving  essence  thereunto,"  Symboleography  (Ed.  1615)  Pt.  I 

§633. 

"'  Lyndwood  166  sub  voc.  Leptima  Testamenta,  "  Quaedam  sunt  illegitima  ratione 
Solemnitatis  non  servatae,  et  talia  nihilominus  Executioni  demandari  debent." 

8  Below  566-567. 

^Lyndwood  173  sub  voc.  Ultimam  Voluntatem;  175  sub  voc.  Testamenta  et 
Voluntates ;  Swinburn  13-15;  sometimes  a  testator  will  expressly  refer  to  codicils 
which  he  may  afterwards  malce.  Test.  Ebor.  i  355. 

^°  A  late  illustration  of  this  rule  is  to  be  found  in  S.P.  Dom.  (1635)  129,  ccxc  112; 
the  following  case  is  there  stated  : — "  A,  being  sick,  sends  for  B  to  make  his  will,  and 


538  SUCCESSION  TO  CHATTELS 

to  a  written  will  a  verbal  codicil  might  be  annexed.  Sir  Giles 
Dawbeney,  knight,  on  March  3rd,  1444,  wrote  his  will  with  his 
own  hand  and  sealed  it  with  his  seal.^  The  will  contained  no 
residuary  bequest ;  "  wherfor  aftirward,  that  is  to  say  the  xi  day 
of  Januar',  the  year  of  our  Lord  Mccccxlv,  at  Barington,  to  the 
seid  Sir  Giles  ligging  in  his  sekenesse,  wherof  he  died  sone  aftir  the 
same  day,  Sir  Robert  Wilby  prest,  his  goostly  fadir,  saide,  *  Sir, 
ye  have  maad  a  testament,  and  bequethid  many  things  to  diverse 
personis,  making  no  mencion  whoo  sholde  have  the  residue  of  your 
goods  that  be  noght  bequetid  ;  will  ye  vouche  saaf  to  say  who  shal 
have  it  ?'  Forthwith  the  seid  knight  without  any  taryyng  said, 
*  My  wif  shal  have  it.'  This  was  his  last  wille."^  It  was  proved 
as  such  in  the  following  March. 

The  written  will  might  take  various  forms.  Either  the  whole 
will  or  the  attestation  clause  might  be  written,  signed,  and  sealed 
by  the  testator.^  But  neither  signature  nor  seal  was  necessary  if  it 
could  be  proved  to  be  his  will.*  It  might  be  written  by  some  one 
for  him  and  acknowledged  as  his  will ;  ^  but  whether  or  not  written 
by  the  testator  himself,  it  was  generally  in  the  first  person.^  It 
might  take  the  form  of  a  solemn  notarial  instrument,^  or  it  might 
be  somewhat  in  the  nature  of  a  letter  of  request.^  There  is  an 
instance  of  a  will  in  the  form  of  a  deed  poll.*  Sometimes  it  was 
stated  that  as  the  testator's  seal  was  not  well  known  the  seal  of 
some  better  known  man  had  been  affixed.^^  In  many  cases,  no 
doubt,  it  was  written  by  the  parson  for  his  dying  parishioner.  A 
common  form  of  will  for  the  guidance  of  such  persons  was  known.^^ 
As  Swinburn  says,^^  and  his  remark  was  doubtless  as  true  then  as 

informs  him  that  he  designed  B  himself  and  C  to  be  executors.  A  states  to  B  the 
particulars  of  various  intended  legacies  which  B  writes  down,  but  he  does  not  take 
any  written  note  of  the  appointment  of  executors.  A  becomes  worse  and  dies,  the 
question  was  whether  this  was  a  good  appointment  of  B  and  C  as  executors ;  "  eight 
lawyers  certified  that  the  will  and  the  appointment  of  executors  were  valid. 

^Test.  Ebor.  ii  110-113.  ^jbid  113,  114. 

3  Ibid  iii  309,  310,  "  In  witness  wherof  I,  the  said  Sir  Henry  Percy,  erle  of 
Northumberland,  have  to  this  my  present  last  will  and  testament  .  .  .  writon  this 
with  myn  awn  hand,  and  signed  with  my  signe  manuell  and  sealed  with  the  scale  of 
myn  armes  and  signett ;  "  ibid  iv  96  ;  Furnivall  go,  *'  writen  with  myn  owen  honde." 

*  Lyndwood  174  sub  voc.  Probatis. 

5 Test.  Ebor.  iii  295,  "In  the  presence  of  the  above  written  Thomas  Sayvell 
squyer  (the  testator),  Thomas  Browne  scryvener  of  London,  writer  of  thies  presentes, 
William  Ermitage,  citezeine  and  cupholder  of  London ;  "  iv  96 ;  Wills  and  Inventories 
73 — a  legacy  to  the  writer  of  the  will. 

^  Wills  in  the  third  person  are  comparatively  rare,  see  for  instances  Madox,  Form, 
nos.  768-771  ;  Test.  Ebor.  i  47. 

'  Wills  and  Inventories  45. 

8  Test.  Vet.  304 — will  of  William,  Earl  of  Pembroke  (1469),  in  the  form  of  a 
letter  of  request  to  his  wife. 

^  Wills  and  Inventories  104  (1516). 

"  Test.  Ebor.  i  no  (1380) ;  Test.  Vet.  321  (1476). 

^^  It  occurs  in  Bishop  Lacy's  Liber  Pontificalis,  see  Furnivall,  67  n.,  135-136. 

i3Atp.  28. 


THE  LAST  WILL  539 

it  is  now,  "  it  is  received  for  an  opinion  amongst  the  ruder  and  more 
ignorant  people  that  if  a  man  should  chance  to  be  so  wise  as  to 
make  his  will  in  his  good  health  when  ...  he  might  ask  counsell 
of  the  learned,  that  then  surely  he  should  not  live  long  after."  At 
the  end  of  this  period,  however,  when,  by  means  of  uses,  it  was 
possible  to  make  elaborate  settlements  of  real  estate,^  men  of 
property  would  be  obliged  to  take  much  thought  over  their 
dispositions.  Sometimes  they  expressly  directed  that  a  lawyer 
was  to  be  consulted  as  to  the  best  mode  of  giving  effect  to  them.^ 
The  nuncupative  will  was  proved  by  the  testimony  of  witnesses. 
Lyndwood  ^  tells  us  that  there  ought  to  be  two  honest  witnesses 
who  can  clearly  depose  to  the  testator's  dispositions.  There  is  no 
need  that  one  of  them  should  be  the  parish  priest  (unless  some 
local  custom  demands  this)  nor  that  the  will  should  contain  a  be- 
quest to  pious  uses,  nor  that  the  witnesses  should  have  been 
specially  summoned  for  this  purpose — for  **  justice  demands  that 
the  clear  intentions  of  the  deceased  be  carried  out."  It  is  clear 
both  from  the  wills  which  have  come  down  to  us  and  from  the 
Year  Books  that  these  words  of  Lyndwood  represented  the  law 
of  his  day.  We  can  see  a  good  illustration  in  the  account  of  the 
manner  in  which  the  nuncupative  will  of  Sir  William  Crathorne 
was  proved  in  1346.*  It  would  seem,  however,  that  in  the 
fourteenth  century  the  fact  that  the  will  had  been  proved  in  the 
ecclesiastical  court  would  not  be  conclusive  as  to  its  validity  in 
a  court  of  common  law.  The  jury  must  be  satisfied  that  there 
was  a  will  and  that  it  was  the  will  of  the  deceased.^  But  at  the  be- 
ginning of  the  following  century  a  grant  of  probate  by  the  ecclesi- 
astical courts  was  given  its  modern  conclusive  effect  by  the  common 

1  For  specimens  of  these  settlements  see  Test.  Vet.  310-322 ;  Test.  Ebor.  i  236 ; 
ii  154-156,  216,  221,  242,  254,  279;  iii  43,  274,  307. 

2  Furnivall  62  (1425)  a  gift  to  uses  was  directed  to  be  made  by  fine,  "  for  more 
suerte ; "  64,  estates  were  to  be  made  by  "  the  avys  of  a  wel  lerned  man  of  the  lawe ;  " 
Wills  and  Inventories  53,  **  Et  fiat  securitas  de  dicta  summa  annuatim  solvenda  per 
tempus  praedictum  juxta  peritoris  avisamentum  in  jure  regio  " — the  reason  for  this 
caution  being  that,  "  religiosi  reddunt  se  difficiles  in  solucionibus  suis." 

3  174  sub  voc.  Prohatis. 

^  Test.  Ebor.  i  21,  "  Memorandum  quod  vii  die  mensis  Nov.  Anno  Domini 
mcccxlvi  constituta  erat  coram  Commissario  domini  Archiepiscopi  apud  Cawode 
Domina  Isabella  relicta  domini  Willielmi  de  Crathorne  militis  .  .  .  asserens 
dictum  maritum  suum  testatum  decessisse,  et  petens  ut  ad  probationem  hujus 
testamenti  admitti  possit ;  qua  admissa  produxit  in  testes  Dominum  Rogerum 
Greteheved  et  Petrum  Bagot,  qui  jurati  et  examinati.  dicunt  et  deponunt  quod 
dictus  Dominus  Willielmus  de  Crathorne  quodam  certo  die  ante  festum  exaltacionis 
Sanctae  Crucis  ultime  preteritum,  de  quo  non  recolunt,  in  ecclesia  de  Crathorne 
personaliter  constitutus  suum  condidit  testamentum  nuncupativum  sub  forma  infra 
scripta;"  cp.  ibid  74,  303. 

^  ''Bere/ord,  C.J. — The  Ordinary's  letter  would  have  no  authority  in  this  court 
since  no  letter  was  granted  to  them  to  certify  his  Court  that  they  were  executors. 
Howard. — The  Ordinary's  letter  would  be  evidence  of  that.  Bereford,  C.J. — It 
would  not  serve  as  proof;  but  averment  of  a  jury  would  be  a  sufficient  proof,"  the 
Eyre  of  Kent  (S.S.)  ii  55. 


540  SUCCESSION  TO  CHATTELS 

law  courts.     In  1426  a  will  under  the  seal  of  the  ordinary  was 
held  to  be  valid  in  the  common  law  courts.^ 

That  a  will  was  always  and  under  all  circumstances  revocable 
was  clearly  held  by  the  ecclesiastical  lawyers.  Whether  the  older 
amorphous  instruments,  which  were  as  much  conveyances  as  wills, 
were  revocable  may  well  be  doubted.^  Even  in  later  times  we 
sometimes  find  testators  expressly  reserving  a  right  to  revoke. ^ 
This  was  perhaps  a  survival  of  older  ideas ;  and  it  was  certainly 
unnecessary.  John  of  Ayton  *  tells  us  that  even  if  a  testator  ex- 
pressly states  in  his  will  that  no  other  will  should  be  valid,  or  if 
he  swears  not  to  revoke,  the  will  is  not  irrevocable.  A  man 
cannot  thus  deprive  himself  of  the  power  of  testation,  because,  if 
he  could,  he  would  be  changing  the  law  which  confers  this  power 
on  all  persons  not  expressly  made  incapable.^  It  may  be  that 
he  will  render  himself  liable  to  ecclesiastical  censures  for  his  per- 
jury if,  contrary  to  his  oath,  he  makes  a  second  will.  None  the 
less  the  second  will  holds  good.^  These  principles  were  accepted 
and  acted  on  by  the  common  lawyers  of  this  period, '^  and  have 
become  an  integral  part  of  English  law.^  As  to  the  various 
modes  in  which  a  testament  or  a  legacy  could  be  revoked  many 
of  the  rules  of  Roman  law  were  borrowed.  Some  of  them  are  at 
the  present  day  recognized  by  the  Wills  Act  and  by  the  rules  of 
equity.^ 

The  interpretation  of  the  will  was  at  this  period  a  branch  of 
the  ecclesiastical  jurisdiction.      It  was  not  till  the  rise  of  the  equit- 

1  Y.B.  4  Hy.  VI.  Mich.  pi.  3  ;  but  nothing  beyond  what  was  proved  before  the 
ordinary  could  be  put  in  evidence,  Y.B.  2  Ed.  IV.  Mich.  pi.  i. 

2  Vol.  ii  95-96. 

^Furnivall  28 — Th.  Broke  (1417)  reserves  to  himself  power  to  alter  or  revoke; 
Test.  Vet.  320,  321 — Margaret,  Lady  Hungerford  (1476) ;  Test.  Ebor.  i  353  (1409). 

*  At  p.  109  ;  Lyndwood  163  sub  voc.  Voluntate  testandi,  "  Non  valeret  pactum 
quod  posset  impedire  liberam  Testament!  factionem.  Ratio  est,  quia  est  contra 
bonos  mores,  unde  non  valeret  etiam  in  eo  casu  juramentum ;  "  for  a  clause  re- 
voking former  wills  see  Wills  and  Inventories  66,  67. 

^  "  Testamentum  publici  juris  est,  unde  cum  sic  concernat  rempublicam,  ejus 
libera  factio  contra  dispositionem  juris  auferri  non  potest." 

^"Non  obstante  etiam  juramento  testatoris  super  non  mutando  testamentum 
primum,  tenet  tamen  secundum  ;  licet  pcenitentia  ei  imponatur  de  perjurio,  quando 
sine  causa  mutavit." 

■^  The  rule  seems  clearly  implied  in  44  Ass.  pi.  36;  it  is  stated  in  Y.BB.  34  Hy. 
VI.  Mich.  pi.  16  (p.  7)  ;  36  Hy.  VI.  pp.  7,  8;  Vynior's  Case(i6io)  8  Co.  Rep.  82a. 

8  Dufour  V.  Pereira,  2  Hargrave,  Juridical  Arguments  304 ;  Walpole  v.  Orford 
(1797)  3  Ves.  402  ;  Hammersley  v.  de  Biel  (1845)  12  CI.  and  Fin.  45. 

*  Swinburn,  Testaments  Pt.  vii,  recognized  as  modes  of  revoking  a  will :  (i)  a 
later  will  §  14  ;  (2)  revocation  or  cancellation  of  the  will  §§  15,  16  ;  (3)  alteration  of 
the  state  of  the  testator  §  17 ;  hindering  the  testator  from  making  another  will  §  18  ; 
as  modes  of  revoking  a  legacy,  ademption  or  translation  §§  20,  21 ;  various  circum- 
stances connected  with  the  legatee,  as  his  death  or  enmity  to  the  testator  §  22. 
The  Wills  Act,  i  Victoria  c.  26,  recognizes  as  modes  of  revocation  marriage,  acts  of 
physical  destruction,  a  subsequent  will,  a  writing  executed  like  a  will ;  ademption  of 
legacies  is  a  well-known  doctrine  of  equity;  and  the  death  of  the  legatee  before  the 
testator  (except  in  certain  cases  provided  by  the  Wills  Act)  revokes  the  legacy. 


CAPACITY  TO  MAKE  A  WILL        541 

able  jurisdiction  of  the  chancellor  that  any  serious  inroads  were 
made  upon  it.  The  guiding  principle  was,  as  we  have  seen,  the 
intention  of  the  testator ;  ^  but  there  was  much  to  be  found  in 
Roman  law  as  to  the  interpretation  to  be  placed  upon  various 
kinds  of  conditional  legacies  or  stipulations.  These  rules  were 
borrowed  by  the  ecclesiastical  lawyers,  and  applied  by  them  both 
to  appointments  of  executors  and  to  gifts  of  legacies.^  Many  of 
these  rules  were  adopted  by  the  court  of  Chancery,  and  by  the 
courts  of  common  law  when  they  were  obliged  to  deal  with  wills  of 
real  estate.  As  developed  by  a  system  of  case  law  they  tended 
to  become  a  fixed  body  of  law  which  often  effectually  prevented 
the  fulfilment  of  the  real  intentions  of  the  testator,  and  sometimes 
actually  contradicted  them.  The  aid  of  the  legislature,^  and  an 
altered  view  of  the  binding  force  of  cases  interpreting  the  clauses 
or  the  words  of  particular  wills,  have  in  our  own  days  restored 
the  intentions  of  testators  to  their  rightful  sovereignty. 

The  Capacity  to  Make  a   Will 

The  ecclesiastical  lawyers  laid  it  down  that  all  persons  were 
capable  of  making  a  will,  unless  they  were  disabled  by  some  special 
rule  of  law.  Of  those  disabled  Lyndwood*  knew  five  classes. 
There  were  those  disabled  "propter  defectum  suae  potestatis," 
as  a  son,  a  slave,  or  a  monk  ;  those  disabled  "  propter  defectum 
mentis,"  as  the  impubes,  the  madman,  or  the  prodigal ;  those 
disabled  "  propter  defectum  sensualitatis,"  as  the  blind,  deaf,  or 
dumb;  those  disabled  " ratione  poenalitatis,"  as  those  condemned 
of  crimes  which  rendered  them  intestabilis ;  and  those  disabled 
*'  ratione  dubietatis,"  that  is,  by  reason  of  some  doubt  as  to  their 
status.  Many  of  these  classes  were  taken  from  the  Roman  law 
and  were  wholly  inapplicable  to  the  conditions  which  prevailed 
when  Lyndwood  wrote.  ^  English  law  knew  neither  filii-familias, 
nor  servi,  nor  prodigi ;  nor  did  blindness,  deafness,  or  dumbness 
necessarily  cause  any  testamentary  incapacity  under  the  prevailing 
rules  or  want  of  rules  as  to  the  formalities  required  in  the  execution 
of  testaments.  To  enumerate  such  incapacities  as  these  merely 
proved  the  enumerator  to  be  a  learned  Romanist  who  knew  his 
authorities.  It  might  be  necessary,  for  the  sake  of  completeness, 
to  set  down  such  rules  if  one  were  writing  a  book  about  these 

^  Lyndwood  174  sub  voc.  Probatis,  "  Cum  omnis  suadeat  aequitas  ut  indubitata 
voluntas  defuncti  impleatur;  '*  above  274. 

2  Swinburn  Pt.  iv  §§  6-15.  ^  j-  Victoria  c.  26  §§  28-33. 

*At  p.  173  sub  voc.  Propriarum  uxorum ;  at  p.  167  sub  voc.  Condere  Testa- 
mentum. 

^  Cp.  Swinburn  Pt.  ii ;  Bl.  Comra.  ii  497-499 ;  in  Blackstone's  account  the  lists 
of  the  ecclesiastical  lawyers  are  adapted  to  the  needs  of  the  practical  English 
lawyer. 


542  SUCCESSION  TO  CHATTELS 

matters;  they  could  be  comfortably  ignored  when  it  came  to 
actual  practice. 

There  were,  however,  three  practical  cases  in  which  the 
ecclesiastical  lawyers  laid  down  rules  as  to  testamentary  capacity 
which  differed  from  the  rules  of  the  common  law.  These  were 
the  cases  of  the  villein,  the  married  woman,  and  the  infant.  In 
all  these  cases,  after  a  shorter  or  a  longer  period,  the  rules  of  the 
common  law  have  prevailed. 

The  villein  was  not  a  slave. ^  He  was  identified  by  the 
ecclesiastical  lawyers  with  the  ascripticius  glebes ;  and  therefore, 
being  free,  they  laid  it  down  that  he  could  make  his  will.^  But, 
as  we  have  seen,  the  villein  was  not  free  as  against  his  lord.^  His 
lord  might,  if  he  pleased,  seize  his  goods.  It  is  true  that  if  his 
lord  did  not  seize  them  he  had  a  good  title  to  them  as  against 
the  rest  of  the  world.  But  to  have  allowed  the  villein  absolute 
freedom  of  testation  would  have  prevented  the  lord  from  exercising 
his  rights  on  the  villein's  death.  Lords  therefore  protested 
against  allowing  this  freedom  of  testation ;  "^  and  it  was  finally 
decided  that,  though  the  villein  could  make  his  will,  and  though 
that  will  would  take  effect  if  the  lord  did  not  choose  to  exercise 
his  rights,  the  lord  could  defeat  the  will  by  exercising  his  rights 
at  any  time  before  probate  of  the  will  had  been  obtained.^ 

The  case  of  the  married  woman  was  far  more  difficult.  We 
have  seen  that  the  common  lawyers  had  denied  the  married 
woman  any  power  to  own  chattels,  and  had  thus  made  a  short  cut 
to  the  solution  of  a  difficult  problem  by  the  process  of  ignoring 
many  older  ideas  which  conflicted  with  their  doctrine.^  In  parti- 
cular that  doctrine  ran  wholly  counter  to  ideas  drawn  from 
Roman  sources.  The  logical  consequence  of  the  views  of  the 
common  lawyers  was  the  denial  to  married  women  of  all  testa- 
mentary capacity,  for  it  is  useless  to  say  that  a  person  may  make 
a  will  if  she  has  nothing  to  leave.'''  The  logical  consequence  of 
the  views  of  the  ecclesiastical  lawyers  was  to  allow  to  married 
women  the  normal  testamentary  capacity.     A  constitution  of  John 

^  Above  491  seqq. 

2  Constitution  of  Stratford  (1342),  Lyndwood  171-179,  against  which  Parliament 
protested  in  1345,  R.P.  ii  149. 

3  Lyndwood  recognized  this  fact;  but  he  does  not  seem  to  think  that  it  affects 
their  general  testamentary  capacity ;  at  p.  172  sub  voc.  Ascriptitiorum,  he  says, 
"  Et  notaquod  hujusmodi  Ascriptitii  sunt  Liberi.  Nee  obstat,  quia  quoad  Dominos 
non  differunt  a  Servis,  sed  quoad  Extraneos  sic.  Et  tales  Testamentum  condere 
possunt." 

^  Above  n.  2.  ^  Swinburn  47b,  48. 

8  Above  526-527. 

'  As  Martin  put  it  in  Y.B.  4  Hy.  VI.  Trin.  pi.  11,  '*  Lequel  seroit  inconvenient 
a  doner  a  un  ascun  chose,  lequel  le  donor  meme  ne  purroit  avoir,  et  que  le  don  sera 
bon ;  "  or  as  Lyndwood  put  it,  173  sub  voc.  Propriarum  uxorum,  "  Habent  enim  pro 
se  opinionem,  quod  uxor  nulla  bonahabet  unde  testari  possit,  sed  omnia  ad  maritum 
pertinent,  sicque  sine  mariti  licentia  uxor  non  potest  condere  testamentum." 


CAPACITY  TO  MAKE  A  WILL         543 

Stratford  made  in  1 342,  and  re-enacting  an  earlier  constitution  of 
1 26 1,  represents  the  latter  point  of  view,  and  denounces  those  who 
impede  or  cause  to  be  impeded  the  wills  of  villeins  and  married 
women. ^  A  petition  in  Parliament  of  1345  represents  the  former 
point  of  view  and  complains  of  this  constitution.^ 

The  manner  in  which  Lyndwood^  discusses  the  subject  illus- 
trates very  well  the  premises  from  which  the  ecclesiastical  lawyers 
argued,  and  their  hopeless  divergence  from  the  premises  of  the 
common  lawyers.  It  is  a  strange  thing,  he  says,  that  husbands 
try  to  prevent  their  wives  from  making  their  wills.  It  may  be 
that  wives  cannot  make  wills  of  their  husbands'  property  without 
their  licence,  though  some  hold  that  they  have  even  this  power ;  ^ 
for  the  wife  is  the  partner  of  her  husband's  life,  and  in  a  manner 
the  mistress  of  her  husband's  goods,  and  therefore  should  be  per- 
mitted with  her  husband's  consent  to  dispose  of  some  part  of  these 
goods  for  the  good  of  her  soul.  It  is  clear,  too,  that  husband  and 
wife  may  both  possess  property  ;  for  on  what  other  hypothesis  could 
the  civil  law  prohibit  gifts  as  between  husband  and  wife,  or  make 
provision  for  the  return  of  the  dos  on  the  dissolution  of  the  marriage  ? 
It  may  be  that  the  husband  is  the  owner  of  the  dos  while  the 
marriage  lasts,  and  while  he  properly  administers  it.  But  he  is 
not  the  owner  of  "  res  parapherna,"  which  are  all  goods  other  than 
the  dos ;  and  of  these  the  wife  may  make  her  will.* 

That  these  views  were  not  merely  the  theories  of  men  who  had 
learnt  their  law  from  the  Code  and  Digest  we  can  see  from  extant 
precedents  of  wills  made  by  married  women.  ^  As  Bracton  had  said, 
husbands  would  oflen  give  such  consent  "propter  honestatem."^ 
In  fact,  the  view  of  the  common  lawyers  ran  counter  to  older  ideas 
as  to  a  married  woman's  capacity  and  to  practical  convenience. 
The  newer  ideas  which  were  destined  in  the  future  to  give  birth 
to  the  separate  estate  of  the  married  woman  were,  it  is  true,  on  the 
side  of  the  ecclesiastical  lawyers.  But  for  the  present  the  views  of 
the  common  lawyers  were  too  strong ;  for  they  were  able,  as  Mait- 
land  points  out,  to  give  effect  to  their  views  by  maintaining  the 

1  Above  542  n.  2  ;  P.  and  M.  ii  426,  427. 

2  At  p.  173  sub  voc.  Propriarum  uxorum.         ^Fot  this  view  see  below  550,  555. 
^Lyndwood,  loc.  cit.,  ••Et  sic  patet,  quod  licet  in  rebus  Dotalibus  maritus  sit 

Dominus,  non  tamen  sic  in  rebus  Paraphernalibus.  Nam  res  Paraphernales  sunt 
propriae  ipsius  mulieris,  etiam  stante  matrimonio  .  .  .  de  quibus  uxor  libere  testari 
potest.  .  .  .  Et  dicuntur  bona  Paraphernalia  quae  uxor  habet  extra  Dotem,  et  quod 
de  illis  bonis  maritus  non  est  Dominus,  sed  remanent  sub  dispositione  uxoris ; "  cp. 
Y.B.  7  Hy.  IV.  Pasch.  pi.  10  per  Thirning,  J.,  for  the  opposing  view. 

5  Test.  Ebor.  i  22,  33,  36  (1346) ;  70  (1349) ;  143  (1390) ;  146  {1391) ;  240  (1398) ; 
288,  291  (1402) ;  338  (1404) ;  ii  162  {1452) ;  Furnivall  103  (1434,  1435) — in  this  case 
the  husband  was  abroad ;  Test.  Vet.  78  (1369).  In  some  cases  the  consent  of  the 
husband  is  expressed,  Wills  and  Inventories  42  (1386) ;  Test.  Ebor.  i  290  (1402) ; 
Test.  Vet.  184  (1415).  These  dates  perhaps  show  the  gradual  victory  of  the  views  of 
the  common  lawyers. 

6f.  6ob. 


544  SUCCESSION  TO  CHATTELS 

rights  of  the  husband  as  against  the  wife's  executor.^  Thus  the 
victory  remained  with  the  common  lawyers.*  The  wife  can  make 
no  will  because  she  owns  no  property.  We  can  see  only  a  few 
unimportant  traces  of  the  views  of  the  ecclesiastical  lawyers  in  the 
rules  that  the  wife's  will  of  her  choses  in  action  not  reduced  into 
possession  during  the  marriage  is  good,  if  the  husband  allows  it  to 
be  proved ;  ^  and  in  the  rule  that  the  wife's  paraphernalia  (a  term 
confined  by  the  common  lawyers  to  her  necessary  clothes  and 
personal  ornaments),  if  not  disposed  of  by  the  husband  in  his  life, 
survived  to  her  if  the  husband  died  solvent* 

We  should  note  that  the  incapacity  of  the  married  woman 
depended  upon  the  fact  that  she  could  own  no  property  in  her  own 
right.  She  was  not,  therefore,  incapable  of  holding  property  as 
executor  in  the  right  of  another ;  and  of  property  so  held  she  could 
make  her  will.  Exactly  the  same  reasoning  applies  to  the  case  of 
the  villein.^ 

The  common  law  had  arrived  at  these  conclusions  at  the  end 
of  this  period.  Fineux,  C.J.,  said  in  1497,^  "Then  as  to  the 
question  whether  a  feme  covert  can  make  an  executor  or  not,  she 
can  do  so  well  enough  without  the  consent  of  her  husband  in  the 
case  where  she  is  another's  executor,  or  of  such  things  or  duties  of 
which  (the  husband)  never  had  possession,  as  in  the  cases  above 
mentioned.  And  by  the  spiritual  law  she  can  make  her  executor 
of  some  things  of  which  the  property  and  the  possession  are  in  her 
husband,  that  is,  of  her  personal  apparel ;  and  so  she  can  by  the 
common  law  by  the  consent  of  her  husband  ;  but  without  the  con- 
sent of  her  husband  she  cannot,  the  possession  and  the  property 
being  wholly  in  the  husband ;  but  here  the  husband  has  proved 
his  wife's  will  and  that  pfoves  his  consent."  Swinburn's  treatise 
proves  that  the  ecclesiastical  courts  were  obliged  to  acquiesce  in 
this  settlement  of  the  law.^  The  married  woman  was  obliged 
to  wait  for  the  development  of  the  equitable  jurisdiction  of  the 
chancellor  for  a  fuller  measure  of  testamentary  capacity. 

In  the  case  of  the  infant  the  rules  of  the  ecclesiastical  lawyers 
prevailed  for  a  much  longer  period.  We  have  seen  that  the 
common  law  had  fixed  the  age  of  majority  for  most  purposes  at 

1  P.  and  M.  ii  427.  ^  See  Swinburn  51b,  52. 

3  There  was  some  doubt  about  this  in  Y.B.  4  Hy.  VI.  Trin.  pi.  21  (p.  31)  though 
the  will  was  ultimately  held  to  be  good;  cp.  Y.B.  39  Hy.  VI.  Mich.  pi.  38. 

4Y.BB.  33  Hy.  V.  Mich.  pi.  5;  12  Hy.  VII.  Trin.  pi.  2  (p.  24);  Tasker  v. 
Tasker  [1895]  P«  i ;  Swinburn,  Testaments  253b,  254.  Bracton  f.  6ob  had  noted 
that  permission  to  make  a  will  was  chiefly  given  "  de  rebus  sibi  datis  et  concessis  ad 
ornamentum  quae  sua  propria  dici  poterunt,  sicut  de  robis  et  jocalibus." 

**  Swinburn  52b,  53  ;  Litt.  §§  191,  192. 

«Y.B.  12  Hy.  VII.  Trin.  pi.  2  (p.  24.) 

■^  For  the  later  law  see  Scammel  v.  Wilkinson  (1802)  2  East  552,  558 ;  In  the 
goods  of  Cooper  (1881)  6  P.D.  34, 


CAPACITY  TO  MAKE  A  WILL        545 

twenty-one.^  The  ecclesiastical  lawyers  followed  the  Roman  rule 
and  fixed  it  at  fourteen  for  boys  and  twelve  for  girls. ^  At  these 
ages  a  boy  or  a  girl  could  make  a  will,  even  when  Blackstone  wrote. ^ 
It  was  not  till  1837  that  the  common  law  rule  as  to  the  age  of 
majority  was  applied  universally  to  testamentary  capacity.* 

Some  Clauses  found  in  the  Wills  of  this  Period 

We  have  seen  that  the  forms  of  the  wills  of  this  period  are  very 
varied.  Their  contents  are  no  less  varied.  Generally,  however, 
the  average  will  contains  the  following  clauses.  First  comes  a 
pious  preface  reflecting  upon  the  certainty  of  death  and  the  un- 
certainty of  its  date.^  Then  come  directions  for  the  testator's 
funeral.  Sometimes  these  are  elaborate.  The  testator  will  prescribe 
exactly  the  processions  and  the  ceremonies,  and  give  elaborate 
instuctions  for  the  building  of  his  tomb.^  Sometimes  he  goes  to 
the  opposite  extreme,  directing  that  as  little  as  possible  shall  be 
spent  on  vain  pomp,  and  leaving  the  money  so  saved  to  the  poor.^ 
That  some  part  of  the  testator's  estate  should  be  devoted  to  religion 
or  charity  was  regarded  as  essential.  Besides  the  customary 
mortuary  fee,  which  is  usually  expressly  left,^  extensive  provision 
was  made  for  religious  services  for  the  soul  of  the  testator,  and 
sometimes  for  the  souls  of  his  friends  and  relations.  Persons  could 
be  hired  to  go  upon  a  vicarious  pilgrimage.^  Masses  were  not 
expensive.  One  testator  orders  7000  at  a  cost  of  one  penny  each — 
perhaps  there  was  some  reduction  on  taking  a  quantity.  ^^  The 
establishment  of  a  chantry,  and  of  a  priest  to  sing  in  perpetuity, 
was  not  unusual.  The  Mortmain  Acts  had  prohibited  gifls  of  land 
to  the  religious  houses.  ^^  That  the  piety  or  the  apprehensions  of  the 
dying  evaded  the  spirit  of  these  Acts  by  the  establishment  of  these 

^  Above  510. 

^Swinburn  38b,  39;  but  seventeen  seems  to  be  the  age  at  which  a  man  could  be 
executor,  ibid  223  ;  John  of  Ay  ton,  Lyndwood  108  ;  above  511. 

3B1.  Comm.  ii  497;  Blackstone  cites  Perkins,  Profitable  Book  §  503,  assaying 
that  a  child  of  four  may  make  a  will ;  but  this  is  clearly  a  misprint  for  fourteen ;  from 
this  the  conclusion  was  deduced  that  a  direction  by  a  testator  under  twenty-one  to 
pay  debts  was  valid  and  enforceable,  though  payment  of  the  debts  could  not  have 
been  enforced  against  him  by  reason  of  infancy,  Hampson  v.  Sydenham  (1651)  Nels. 

55. 

4  I  Victoria  c.  26  §  7. 

"^  These  will  be  found  on  almost  every  page  of  any  collection  of  wills. 

6  E.g.  Wills  and  Inventories  41,  82 ;  Test.  Ebor.  i  3,  4,  43  ;  ii  262 ;  Test.  Vet.  51. 

■^  Wills  and  Inventories  82 ;  Test.  Ebor.  ii  204  ;  Test.  Vet.  54. 

8  E.g.  Wills  and  Inventories  89,  100,  the  mortuary  fee  is  left  *•  ut  moris  est." 

^  Test.  Ebor.  ii  276,  *'  Item  volo  quod  unus  homo  conducatur  ad  peregrinandum 
usque  Sanctum  Ninianum  in  Scocia  ad  expensas  meas  et  ibidem  offerendum  pro  me 
unum  annulum  auri  cum  uno  dyment  in  eodem ;  "  i  257 — a  pilgrimage  in  pursuance 
of  a  vow  made  when  nearly  drowned  on  a  voyage  between  Ireland  and  Norway ;  i  420 
— two  marks  to  a  person  to  go  to  Rome  on  pilgrimage. 

1"  Test.  Vet.  81 ;  Furnivall  6,  4400  masses  are  to  cost  ;^i8  los. ;  cp.  Y.B.  5  Ed, 
II.  (S.S.)  (1312)  xxix-xxx. 

"  Above  87. 

VOL.   III.— 35 


546  SUCCESSION  TO  CHATTELS 

chantries  no  one  who  reads  any  collection  of  wills  of  this  period  can 
doubt.  ^  Large  quantities  of  land  must  have  been  burdened  with 
rent  charges  in  favour  of  the  chantry  priests.  Henry  VIII.,  when 
he  prohibited  such  grants  for  a  longer  period  than  twenty  years,^ 
put  a  stop  to  an  evil  similar  in  kind  to  that  which  the  Mortmain 
Acts  had  been  designed  to  remedy.  Sometimes  testators  are  more 
sensible  or  less  selfish.  They  give  their  money  to  the  poor  of  their 
native  village,  or  other  place  with  which  they  had  been  connected. 
One  merchant  leaves  money  to  the  village  where  he  had  been 
accustomed  to  buy  his  wool.^  Bequests  for  the  building  or  repair 
of  roads  and  bridges  or  churches  are  by  no  means  uncommon."* 
Sometimes  we  meet  with  bequests  to  poor  scholars  at  the  University.^ 
But  perhaps  the  most  striking  characteristic  of  the  mediaeval  will  is 
the  large  number  of  specific  legacies  which  it  contains.  The  con- 
tents of  a  testator's  living  rooms,  bedrooms,  study,  kitchen,  and 
stable  can  often  be  pictured  with  very  fair  accuracy  from  the  various 
legacies  in  his  will.  Often  the  articles  are  described  with  much 
minuteness.  The  bed  with  its  hangings,  the  drinking  cups,  which 
sometimes  have  their  special  names  and  mottoes,  the  colour  and 
value  of  the  testator's  clothes,  the  shape  and  make  of  his  armour 
and  weapons,  are  described  with  minute  accuracy ;  ^  and  sometimes 
little  scraps  of  family  history  relating  to  the  mode  in  which  the 
articles  were  got  are  inserted.  One  testator  leaves  a  gilt  covered 
cup  ornamented  with  crowns,  which  Edward  III.  had  given  to  him  ;  ^ 
another  a  cup  which  the  Count  of  Arundell  had  given  to  him  "  under 
the  condition  that  it  always  remain  to  my  right  heirs  in  memory  of 
the  aforesaid  Counts ; "  ^  another  "  a  litel  Portose,  the  which  the 
saide  Sir  Thomas  [the  testator]  toke  w*  hym  alway  when  he  rode."  ^ 
Very  frequently  there  is  a  legacy  of  a  book  or  books.  Of  these, 
books  of  devotion  are  the  most  common ;  ^^  but  we  often  meet  with 
books  upon  the  civil  and  canon  law,^^  sometimes  books  of  general 

^  For  a  specimen  see  Furnivall  25. 

'23  Henry  VIII.  c.  10;  cp.  Sharpe,  Calendar  of  Hustings  Wills  ii  viii-x. 
'Test.  Ebor.  ii  56,  "Ad  distribuendum  inter  yconomos  de  Yorkes  Walde  de 
quibus  emi  lanam  xx/k" 

*  Wills  and  Inventories  67,  73  ;  Test.  Ebor.  i  8,  11,  18. 

''Test.  Ebor.  ii  58,  '•Residuum  ad  exhibendum  pro  termino  octo  annorum  in 
universitati  Oxoniensi  pauperes  capellanos,  qui,  antequam  ad  exhibicionem  per 
executores  meos  admittantur,  sint  in  artibus  baccalarii,  ad  gradum  ulteriorem  in 
.eisdem  in  gressuri ;  "  ibid  i  416  there  is  a  bequest  for  carrying  on  the  war  against  the 
heretics  in  Bohemia. 

*  For  a  few  illustrations  see  Test.  Ebor.  i  275,  279,  411 ;  ii  98-104,  109,  133,  147, 
226,  236,  259,  260 — but  almost  every  page  of  any  collection  will  contain  illustrations, 

'  Test.  Ebor.  i  255  {1399) ;  cp.  ii  61,  "  unum  collar  deauratum  de  corrodio  Domini 
Regis." 

8  Ibid  275.  ^  Ibid  ii  227. 

1"  A  most  singular  bequest  is  to  be  found  in  Wills  and  Inventories  65  (1420)  of 
"  i  romance  boke  is  called  ye  gospelles." 

^^  See  e.g.  Wills  and  Inventories  101-103 ;  the  will  of  Master  John  Newton, 
treasurer  of  York  Cathedral,  Test.  Ebor.  i  364-371 ;  and  for  the  current  prices  of 
some  of  these  books  see  some  inventories  ibid  iii  74,  76,  132. 


CAPACITY  TO  MAKE  A  WILL         547 

literary  interest,^  sometimes  books  of  tales,  or  romance  books,^  and, 
what  is  most  interesting  to  us  as  English  lawyers,  books  upon 
English  law.  Bracton  appears,^  registers  of  writs,  and  books  of  the 
statutes ;  *  and  in  one  will  a  testator  leaves  to  Guy  Fairfax,  the 
future  judge,  "  unum  Registrum  magnum  quod  fuit  Willelmi  Gas- 
coigne  Justiciarii  Angliae"^ — a  legacy  which  all  historians  of  the 
law  will  covet.  It  is  this  profusion  of  specific  legacies,  with  the 
values  attached  to  the  articles  bequeathed,  either  in  the  will  or  in  the 
accompanying  inventory,  which  makes  these  collections  of  wills  so 
valuable  to  historians  of  many  different  sides  of  English  life. 
Generally  the  will  concludes  with  a  residuary  bequest  either  to  the 
executors  to  be  expended  for  the  good  of  the  testator's  soul,  or  to 
the  testator's  wife,  children,  or  other  relatives.^ 

It  follows  from  what  has  been  said  above,  as  to  the  forms  of 
making  a  will,  that  the  appointment  of  the  executor  or  executors 
was  the  most  important  part  of  it.'^  There  is  usually  a  legacy  left 
to  the  executors  as  a  remuneration  for  their  trouble.^  Sometimes 
the  legacy  is  made  conditional  upon  their  acceptance  of  the  office.^ 
Sometimes  it  is  expressly  said  that  they  may  charge  for  their 
trouble. ^^  Occasionally  the  testator  warns  them  against  any 
collusion  with  his  debtors  or  other  fraudulent  practices.  ^^  Some- 
times he  expressly  says  that  they  need  give  no  account.  ^^  The 
powers  conferred  upon  them  were  often  wide.  They  were  some- 
times empowered  to  select  the  charitable  objects  on  which  the 
testator's  money  was  to  be  spent  for  the  salvation  of  his  souV^ 
to  settle  any  doubts  arising  upon  the  interpretation  of  the  will ;  ^* 

1  Test.  Ebor.  i  209  (1396)  "  Pers  plewman  ;  "  ii  14  (1431)  Gower ;  34  (1433)  "  Pers 
Plughman;"  61  (1437)  "  unum  librum  vocatum  Francisci  Petrarcae  laureati;"  see 
Furnivall  136  n.  for  a  mention  of  Chaucer's  Canterbury  Tales  in  a  will  of  1420. 

2  Test.  Ebor.  ii  29  (1433),  "  Librum  Angliae  de  Fabulis  et  Narracionibus." 
'  Ibid  i  102  (1378)— a  bequest  to  Merton  College. 

*  Ibid  ii  27  (1432) — a  book  of  the  statutes  Ed.  III.-Hy.  IV.,  a  Natura  Brevium, 
and  a  book  of  the  old  statutes ;  ibid  iii  23  (1403)  John  de  Scarle,  late  lord  chancellor, 
leaves  his  register  with  the  statutes  to  the  Chancery  of  Lancaster ;  iv  87 — a  Lyndwood ; 
ibid  102  n. 

5  Ibid  ii  233. 

^  In  one  case,  ibid  i  20  (1346),  the  testator  states  that  he  has  given  to  his  wife 
(one  of  his  executors)  and  to  his  confessor  verbal  directions  as  to  the  mode  in  which 
his  will  is  to  be  carried  out. 

'  Above  537.  ®  See  e.g.  Wills  and  Inventories  48,  50,  51. 

^  Test.  Ebor.  i  355.  i"  Wills  and  Inventories  33,  60. 

^^Test.  Ebor.  i  234;  ii  124,  245,  "  Prohibeo  quod  aliquis  executorum  meorum 
aliquid  vendat  de  bonis  meis  ad  vile  precium  propter  aliquem  favorem  vel  amorem 
alicujus  personae  sed  ad  majus  comodum." 

^2  Ibid  i  178 — the  wife  being  one  of  the  executors  and  taking  the  residue  to  her 
own  use. 

^3 A  common  clause  is  the  following:  '•  Residuum  lego  A,  B,  C,  D,  etc.,  quos 
constituo  executores,  ut,  Deum  prae  oculis  habentes,  disponant  sicut  animae  meae 
viderint  melius  expedire." 

"  Test.  Ebor.  i  70,  "  Et  si  contingat  quod  aliquid  de  isto  testamento  alicui 
videatur  ambiguum,  obscurum,  incertum,  indistinctum,  vel  generale  legatum,  do 
executoribus  meis  predictis  potestatem  ambiguum  interpretandi,  obscurum  declarandi, 
ncertum  certificandi,  indistinctum  distinguendi,  et  generale  legatum  specificandi." 


548  SUCCESSION  TO  CHATTELS 

to  act  as  guardian  to  the  testator's  children ;  ^  to  make  restitution 
to  persons  whom  the  testator  had  wronged  in  his  lifetime.^  We 
shall  see  that  the  latter  bequest  was  in  this  period  very  necessary, 
for,  when  the  wrongdoer  died,  his  liability  to  be  sued  by  those 
whom  he  had  injured  died  with  him.^ 

In  fact,  it  was  not  merely  formally  that  the  appointment  of 
the  executor  was  the  most  important  part  of  the  will.  It  was  to 
the  existence  of  the  executor  that  testators  owed  their  large 
powers  of  effecting  their  wishes  after  their  death.  In  fact,  it  was 
the  existence  of  the  executor  which  rendered  legally  possible 
some  of  the  most  important  parts  of  the  substance  of  the  will. 
I  have  already  noted  the  fact  that  in  the  devises  of  land  permitted 
in  the  boroughs  we  can  see  the  germs  of  many  later  equitable 
doctrines.*  That  this  was  so  was  due  largely  to  the  fact  that  in 
the  executor  of  a  will  the  law  had  a  person  who  could  be  asked 
or  commanded  to  do  many  various  acts.  The  common  law  had 
deliberately  declined  to  recognize  any  one  holding  a  fiduciary 
position  of  this  character.  It  declined  in  the  case  of  land  to  look 
beyond  the  person  seised ;  and  the  conditional  feoffment  was  but 
a  clumsy  substitute  for  the  supple  use.^  In  the  case  of  personalty 
it  might  have  admitted  such  an  idea  through  the  executor,  had 
not  jurisdiction  over  matters  testamentary  been  allowed  to  go  to 
the  ecclesiastical  courts.  The  extent  of  the  loss  of  the  common 
law  can  be  measured  if  we  look  at  the  clumsiness  of  the  forms 
and  the  smallness  of  the  results  achieved  by  its  ordinary  convey- 
ances, and  compare  with  them  the  elasticity  of  the  clauses  and  the 
variety  of  the  effects  achieved  by  the  ordinary  will.  A  very  few 
instances  will  suffice.  It  is  a  common  thing  to  find  books  or 
other  valuable  chattels  settled  in  trust.  ^  A  power  of  appointment 
among  children  is  given  to  a  wife  during  her  lite,  and  after  her 
death  to  the  testator's  executors.'^  Executors  are  given  a  power 
to  give  to  friends  and  relations  and  to  reward  servants  as  they 
see  fit*  A  testator  leaves  a  ship  to  his  wife  on  trust  (apparently) 
for  his  two  daughters,  with  power  to  apply  the  profits  to  their 
children.^     Property  is  left  on  condition  that  the  beneficiary  takes 

1  Wills  and  Inventories  6r  ;  Test.  Ebor.  ii  257. 

2  Test.  Ebor.  ii  130;  see  an  elaborate  provision  to  this  effect  in  Hy.  VII. 's  will 
Test  Vet.  27,  28. 

3  Below  576-583,  584.  •*  Above  274. 
5  Vol.  ii  594  n.  5 ;  Bk.  iv  Pt.  I  c.  2. 

"  Richmondshire  Wills  3;  Test.  Ebor.  i  369;  iii  128,  217;  cp.  Y.B.  37  Hy.  VI. 
Trin.  pi.  11 — bequest  of  a  book  to  B,  one  of  the  executors,  for  life,  and  after  his 
death  to  A  for  life,  and  after  his  death  to  a  parish  for  ever ;  the  court  held  the  gift 
good,  the  executors  being  in  substance  trustees. 

'  Wills  and  Inventories  48,  "  Item  do  et  lego  residuum  omnium  bonorum 
meorum  ...  ad  maritandum  seu  ad  matrimonia  supportanda  filiabus  tam  filiorum 
quam  filiarum  mearum  secundum  ordinacionem  et  disposicionem  uxoris  meae  in  vita 
sua,  et  postmortem  secundum  disposicionem  executorum  meorum." 

8  Test.  Ebor.  i  55.  » Ibid  i  85. 


CAPACITY  TO  MAKE  A  WILL        549 

the  name  and  arms  of  the  testator.^  '*As  tochyng  Todworth," 
writes  a  testator  in  1470,  ''and  ye  can  thynke  y*  this  basterd  of 
myne  will  thrife,  latt  hym  have  Tod  worth,  or  ellys  latt  him  have 
XX  marks,  and  go  furth  in  the  world,  and  this  I  put  to  your 
discrecyoune."^ 

Of  the  many  human  and  humorous  and  intimate  touches 
contained  in  these  wills  I  can  only  give  one  or  two  examples. 
In  these  documents,  generally  drawn  or  dictated  by  the  testators 
themselves,  they  are  found  in  far  greater  profusion  than  in  the 
conveyances  of  this  period.  A  testator  provides  for  the  payment 
of  his  debts  ''  de  quo  doleo  valde ; "  ^  another  more  prudent  or 
more  fortunate  can  say,  "  blessyd  be  god  y  owe  no  thyng."  ^  A 
little  godchild  is  left,  among  other  things,  **a  prymmer  to  serve 
god  with."  ^  Humphrey  de  Bohun,  Earl  of  Hereford,  leaves 
"a  bason  in  which  we  are  accustomed  to  wash  our  head."* 
William  Haute,  Esq.,  was  a  collector  of  relics.  Among  other 
choice  fragments  he  leaves  "  one  piece  of  that  stone  on  which  the 
archangel  Gabriel  descended  when  he  saluted  the  Blessed  Virgin 
Mary." ''  The  canon  of  Yorke  was  assuredly  no  teetotaller  who 
left  to  the  late  butler  of  an  archbishop  of  Canterbury  one  shilling 
a  week  '*  pro  potu  cui  solutus  est,"  if  this  can  be  decently  done.^ 
We  have  an  echo  of  the  Wars  of  the  Roses  in  the  injunction  of 
Margaret,  Lady  Hungerford,  in  1476,  to  her  heirs  not  to  try  to 
disturb  any  of  the  alienations  of  her  property  which  she  has 
been  obliged  to  make  owing  to  ''seasons  of  trobill  tyme  late 
passe.  "^  We  are  reminded  of  the  litigious  spirit  of  the  times 
when  a  testator  directs  that  ;^ioo  "  be  well,  securely,  and  discreetly 
guarded  in  a  certain  secret  place  "  to  defend  any  pleas  concerning 
the  land  that  may  happen  to  be  brought  against  the  heirs.^^  Family 
jars  of  a  somewhat  acute  kind  evidently  inspired  the  declaration 
of  a  testator  that  he  had  not  detained  property  which  his  daughter 
Katherine  had  often  accused  him  of  detaining. ^^  Mr.  Justice 
Vavisour's  relations  with  his  wife  were  not  quite  smooth.  There 
had  been  a  dispute  about  £y  which  he  asserted  she  had  taken 

»  Test.  Ebor.  ii  269 ;  Test.  Vet.  108. 

3  Test.  Ebor.  iii  180.  3  wills  and  Inventories  (141 5)  58. 

4  Furnivall  42.  "  Ibid  102  (1434). 
"Test.  Vet.  67  (1361).  '  Ibid  300  (1462). 

8  Test.  Ebor.  iii  31  (1405),  '•  Item  volo  quod  Jacobus,  quondam  botillarius 
domini  mei  Willelmi  de  Wittillyseye,  quondam  archiepiscopi  Cantuariensis  .  .  . 
qui  moram  trahit  apud  Maydeston,  in  sua  ultima  necessitate  habeat  omni  septimana 
\iid.  pro  potu  cui  solutus  est,  hoc  anno  usque  lestum  Omnium  Sanctorum,  per 
rectorem  de  Bromle;  et  hoc  vellem  quod  fieret  ad  finem  vitae  sua,  si  hoc  fieri 
posset  bono  modo." 

9  Test.  Vet.  320,  321.  i"  Test.  Ebor.  ii  213. 

"Ibid  iii  296  (1484),  "Item,  ubi  dicta  Katerina,  filia  mea,  saepius  asseruit 
quod  ego  detinerem  diversa  bona  per  socerum  meum,  avum  vero  suum,  eidem 
legata,  protestor  publice  et  expresse  quod  non  habeo  aliqua  hujusmodi  bona  nee 
aliquis  alius  me  sciente." 


550  SUCCESSIOl^  TO  CHATTELS 

away;  and  her  benefits  under  the  will  were  made  conditional 
upon  her  making  restitution — a  peculiarly  effective  way  of  having 
the  last  word.^  A  testator  provides  for  the  peace  of  his  widow 
by  making  a  bequest  to  his  son  dependent  upon  his  diligence  at 
his  trade,  his  humility  and  good  conduct — "nee  arguendo  uxorem 
meam  nee  aliquid  in  contrarium  eidem  vel  executoribus  meis 
infrascriptis  inferre  aut  facere."^ 

These  are  but  a  few  instances  of  the  manner  in  which  these 
wills  bring  us  into  closer  touch  with  actual  men  and  women  than 
any  other  kind  of  legal,  perhaps  than  any  other  kind  of  historical, 
document  of  this  period. 

§  2.  Restrictions  on  Testation  and  Intestate 
Succession 

It  is  probable  that  in  the  days  both  of  Glanvil  and  of  Bracton 
a  man  who  had  a  wife  or  children  could  not  leave  all  his  chattels 
by  will  unless  the  special  custom  of  the  town  or  other  place  where 
he  dwelt  allowed  him  to  do  so.  His  wife  and  children  had  certain 
rights  to  his  property,  of  which  he  could  not  deprive  them  by  his 
will.^  If  he  left  a  wife  alone  she  took  a  half;  if  a  wife  and  children 
they  took,  the  wife  a  third,  and  the  children  who  had  not  received 
an  advancement  from  their  father  in  his  lifetime*  a  third; 
and  so  definite  was  this  right  of  the  wife's  that  some  thought  that 
with  her  husband's  consent  she  might  bequeath  it  by  her  will.^ 
It  was  only  the  half  or  the  third  which  remained  over  that  a  man 
was  free  to  dispose  of  as  he  pleased.  So  widespread  was  this 
custom  that  at  a  very  early  date  the  common  law  knew  a  special 
writ,  called  the  writ  de  rationabili  parte  bonorum,  by  means  of 
which  the  wife  and  children  could  get  their  shares.  No  doubt 
this  writ  was  devised  before  the  ecclesiastical  jurisdiction  over 
matters  testamentary  had  been  consolidated.  It  dates  from  a 
time  when  it  was  by  no  means  clear  that  the  king's  court  could 

1  Test.  Ebor.  iv  go. 

2  Ibid  i  92  (1373) ;  cp.  Wills  and  Inventories  14,  "  Item  Henrico  le  Vavasour 
filio  meo  sexaginta  marcas  sub  hac  forma,  si  bene  se  habuerit  erga  Deum  et  homines 
secundum  judicium  Executorum  meorum,  et  maxime  relinquendo  illam  meretricem 
quam  nunc  tenet." 

^Glanvil  vii  5;  Bracton  ff.  Gob,  61;  Magna  Carta  (1215)  §  26,  '*  Et  residuum 
relinquatur  executoribus  ad  faciendum  testamentum  defuncti ;  et  si  nihil  nobis 
debeatur  ab  ipso,  omnia  catalla  cedant  defuncto,  salvis  uxori  ipsius  et  pueris  rationa- 
bilibus  partibus  suis;  "  P.  and  M.  ii  347-348. 

^The  rule  as  to  the  advancement  appears  in  the  form  of  the  writ  de  rationabili 
parte  contained  in  the  Register  f.  142b;  the  idea  is  an  old  one;  we  see  it  in  the  rule 
as  to  the  permission  in  Glanvil  (above  74)  to  give  away  from  one's  heir  a 
marriage  portion  to  a  daughter;  Y.B.  i,  2  Ed.  II.  (S.S.)  41. 

°  Bracton  f.  60b ;  P.  and  M.  ii  426 ;  there  is  at  least  one  case  in  which  she  did 
so,  Test.  Ebor.  i  21-23  {1346);  and  Lyndwood  173  sub  voc.  Propriarum  uxorum  is 
able  to  cite  a  little  authority  in  favour  of  it. 


EXISTENCE  OF  THE  OLDER  SCHEME    551 

not  entertain  an  action  for  the  payment  of  a  legacy ;  ^  and  its  exist- 
ence was  sometimes  found  difficult  to  reconcile  with  the  exclusive 
jurisdiction  over  matters  testamentary  which  the  ecclesiastical  courts 
had  assumed.^  In  later  days,  too,  when  this  scheme  of  restraints 
on  testation  and  intestate  succession  was  decaying,  there  was 
much  debate  as  to  whether  this  writ  lay  by  virtue  of  the  common 
law  or  by  virtue  only  of  some  special  custom.^  But,  whatever 
may  be  true  of  the  law  of  a  later  date,  I  cannot  doubt  that  in  the 
twelfth  and  thirteenth  centuries  this  scheme  of  succession  was 
the  general  rule,  and  that  this  writ  was  framed  to  secure  its 
observance. 

In  thus  holding  that  this  scheme  of  succession  was  once  part 
of  the  general  law  of  England  we  are  not  obliged  to  rely  only 
upon  the  evidence  of  Glanvil  and  Bracton.  We  have  the  evidence 
of  the  wills  of  this  period,  and  the  evidence  of  its  survival  over 
large  and  important  parts  of  England.  Moreover,  though  that 
part  of  the  scheme  which  imposed  restrictions  on  testation  ceased 
to  prevail  generally  in  the  course  of  the  fourteenth  century,  we  do 
not  find  during  this  period  any  other  scheme  of  intestate  succes- 
sion put  forward  either  in  the  Year  Books  or  in  the  writings  of 
the  ecclesiastical  lawyers.  I  shall  here  consider  firstly,  the  evi- 
dence for  the  existence  of  this  scheme ;  secondly,  the  reasons  for 
its  disappearance  over  the  larger  part  of  England ;  and  thirdly, 
the  growth  of  the  new  law  which  gradually  took  its  place. 

The  Evidence  for  the  Existence  of  the  Older  Scheme 

In  the  wills  of  this  period  there  are  many  references  to  this 
scheme  of  succession.  In  Furnivall's  collection  of  fifty  wills  it  is 
alluded  to  twice.*  In  the  second  of  these  cases  the  testator 
declares  that  if  his  wife  and  children  ask  for  their  reasonable  parts 
according  to  law  they  are  to  be  excluded  from  all  benefits  under 
his  will.  In  the  collections  of  wills  from  the  northern  parts  of 
England  it  is  still  more  frequently  alluded  to.  I  will  ^\vq  two 
instances  out  of  many.  In  1400,^  Sir  Robert  Constable,  of  Flam- 
borough,  knight,  "  gave  and  bequeathed  the  residue  of  all  his  goods, 
after  first  deducting  all  debts  due,  to  be  divided  into  three  parts, 
that  is,  one  part  to  Margaret  his  wife,  the  second  part  to  his  sons 
not  advanced,  to  be  equally  divided  between  them,  the  third  part 
he  has  reserved  to  himself."     In  1522^  a  testator's  will  contains 

1  Vol.  i  627-628. 

2  p.  and  M.  ii  350;  Y.B.  i,  2  Ed.  II.  (S.S.)  40,  Stanton,  J.,  thought  a  claim  for 
a  child's  part  a  matter  for  the  eccelesiastical  court,  but  changed  his  mind  after 
argument. 

3  Below  553.  *  12  (1406) ;  20  (1411). 

5  Test.  Ebor.  i  265.  ^  Wills  and  Inventories  107. 


552  SUCCESSION  TO  CHATTELS 

the  following  clause :  ''I  will  that  my  Wyfe  have  hir  thirde  parte 
of  all  my  goodes,  my  debts  to  be  paied  of  the  hole,  my  goodes 
equally  to  be  devyded  in  thre,  oon  parte  for  my  Wyfe  such  as 
p'teyneth  to  hir  by  the  lawe,  oon  other  parte  to  be  devyded 
amongest  my  childer  not  promoted,  the  thirde  parte  thereof  be- 
longing to  mysellfe  to  goo  for  performance  of  this  my  last  Will 
and  Testament,  and  the  residue  thereof  to  be  equally  devyded 
emongst  my  said  Children,  and  the  expence  of  myne  Executors  to 
be  paied  of  my  partie. " 

That  this  scheme  is  so  frequently  alluded  to  ^  in  these  northern 
wills  is  explained  by  the  fact  that  in  the  province  of  York  the 
restraints  upon  testation  imposed  by  this  scheme  of  succession 
lasted  till  1692.^  It  was  not  the  case,  indeed,  here  or  in  any 
other  part  of  England,  that  the  wife  could  leave  her  part  by  her 
will  in  the  lifetime  of  the  husband ;  for  the  common  law  rules  as 
to  the  testamentary  incapacity  of  the  wife  had  become  universal.^ 
But  both  she  and  her  children  were  entitled  to  their  legitimate 
parts,  of  which  a  testator  could  not  deprive  them  by  his  will,  sub- 
ject to  the  rule  that  the  children  who  had  been  advanced  must 
bring  these  advances  into  account.*  These  restrictions  prevailed 
not  only  in  the  province  of  York,  but  also  in  Wales  till  1696,^  and 
in  London  till  1724.^  Even  then  it  was  only  the  restrictions 
upon  testation  which  these  statutes  of  1692,  1696,  and  1724 
abolished.  As  a  scheme  of  intestate  succession  the  old  rules  re- 
mained the  law  in  these  places  till  1856.^  Before  1856  the  only 
change  which  took  place  in  the  law  of  intestate  succession  prevail- 
ing in  those  places  was  a  change  which  affected,  not  the  wife's  part 
or  the  child's  part,  but  the  dead's  part.  The  rules  of  succession 
to  that  part  had  come  to  be  the  same  as  the  rules  which  governed 
the  succession  on  intestacy  to  the  whole  of  a  man's  movables  in 
Other  parts  of  England.^ 

In  other  parts  of  England  it  is  clear  that  these  restrictions 
upon  testation  had  disappeared  early  in  the  fourteenth  century, 

1  The  following  are  a  few  of  the  references :  Richmondshire  Wills  13 ;  Wills 
and  Inventories  57,  69,  75,  112  ;  Test.  Ebor.  i  29,  97,  140,  251 ;  ii  64 ;  iv  9,  24  ;  in 
Test.  Ebor.  i  357  a  testator  speaks  of  distribution  among  his  wife  and  children, 
••prout  secundum  legem  et  consuetudinem  regni  Angliae  ;  "  to  the  same  effect  a 
Bishop  of  Durham  in  1313,  Regist.  Palat.  Dunelm.  i  369,  385,  cited  P.  and  M.  ii 
352 ;  for  other  instances  in  towns,  see  cases  cited  by  Gross,  Mediaeval  Law  of 
Intestacy,  H.L.R.  xviii  128,  129. 

24,  5  William  and  Mary  c.  2  ;  2,  3  Anne  c.  5. 

3  Above  542-544.  ^Swinburn  Ft.  iii  §§  16-18. 

«  7,  8  William  III.  c.  38. 

^  II  George  I.  c.  18.  For  a  detailed  account  of  these  customs  see  Bum,  Ecclesi- 
astical Law  (9th  ed.)  iv  564-603  ;  for  London  see  Calendar  of  Hustings  Wills  i  xxxiii, 
xxxiv.  Curiously  enough,  London  is  the  example  given  by  Bracton  (f.  61)  of  a  place 
where  by  special  custom  a  man  may  leave  by  will  all  his  property. 

■^  19,  20  Victoria  c.  94. 

8  Stapleton  v.  Sherwood  (1682)  2  Rep.  Ch.  132;  Burn,  Eccl.  Law  iv  571,  572  ; 
I  James  II.  c.  17  §  8. 


EXISTENCE  OF  THE  OLDER  SCHEME    553 

except  in  so  far  as  they  were  maintained  in  certain  places  by  ex- 
press local  custom.^  Though  there  are  one  or  two  cases  in  which 
the  plaintiffs  in  an  action  brought  upon  the  writ  de  rationabili parte 
bonorum  allege  that  the  writ  lies  by  the  general  custom  of  the 
country;^  though  there  was  some  authority  for  saying  that  the 
writ  was  given  by  Magna  Carta ;  ^  it  was  safer  to  allege  a  special 
custom,  and  it  gradually  came  to  be  thought  that  the  writ  lay  only 
when  some  special  custom  could  be  shown. '^  Coke  so  states  the 
law  ^ — though  down  to  Blackstone's  day  there  was  not  wanting 
weighty  authority  to  the  contrary.^  Thus  this  scheme  of  succes- 
sion disappeared  in  so  far  as  it  imposed  restrictions  on  testation ; 
but  there  is  no  evidence  that  the  rights  of  the  wife  and  children 
on  intestacy  were  disregarded.  Though  their  rights  were  treated 
as  customary  rights  to  be  proved  to  the  court  both  by  the  common 
lawyers  '^  and  by  the  ecclesiastical  lawyers,^  there  is  no  evidence  of 
the  prevalence  of  any  other  custom  than  that  which  gave  half  to  a 
wife  or  a  third  each  to  wife  and  children. 

I  cannot  but   think  that  this  fact,  though  not   a  conclusive 

1  Y.B.  I,  2  Ed.  II.  (S.S.)  39-42,  detinue  for  a  child's  part  against  executors  in 
which  the  count  mentions  the  custom  of  the  country ;  in  a  note  to  the  MS.  cited  at 
p.  42  it  said,  "  The  opinion  is  that  .  .  .  the  wife  and  children  have  no  action  if  the 
husband  has  devised  all  his  goods ;  "  in  Y.B.  7  Ed.  II.  215  the  writ  de  rationabili 
is  said  to  be  founded  on  Magna  Carta ;  but  in  Y.B.  17  Ed.  II.  536,  where  detinue 
for  a  reasonable  part  was  said  to  be  founded  on  the  custom  of  the  kingdom  and 
Magna  Carta,  Herle  says,  "  Nous  avoms  sovent  vew  tiel  href  mez  nous  ne  le 
veismes  unques  meyntenu,"  and  he  notes  that  a  count  according  to  the  usage  of  the 
country  might  be  good. 

2Y.BB.  17  Ed.  III.  (R.S.)  144;  30  Ed.  III.  ff.  25,  26— the  writ  adjudged  good; 
but  it  is  said  by  Skipwith,  and  not  contradicted,  that  the  "  will  must  first  be  per- 
formed, and  if  anything  remains  over  then  it  may  be  she  will  have  her  portion," 

3  Y.BB.  6,  7  Ed.  II.  (S.S.)  30.31 ;  30  Ed.  III.  f.  26. 

4Y.BB.  39  Ed.  III.  f.  6;  40  Ed.  III.  Mich.  pi.  13— it  is  said  that  the  lords  in 
Parliament  do  not  allow  that  this  action  is  by  custom  or  law  of  the  realm ;  23  Hy. 
VI.  Mich.  pi.  20;  7  Ed.  IV.  Mich.  pi.  23. 

5  Co.  Litt.  176b ;  Second  Instit.  33. 

^  F.N.B.  122  L ;  in  a  little  collection  of  conveyancing  precedents  known  as  Carta 
Feodi  (Th.  Berthelet  1543),  at  f.  36b  it  is  said,  '*  Si  uxorem  habeatbona  in  duas  partes 
equales  dividi  debent.  ...  Et  si  habeat  uxorem  et  liberos  in  tres  partes  equales  dividi 
debent  bona  .  .  .  et  tunc  de  parte  sua  condet  testamentum;  "  and  the  universality 
of  the  custom  at  the  end  of  the  fifteenth  century  is  attested  by  the  Italian  Relation 
of  England  (C.S.)  26-27  5  see  also  Johns  v.  Rowe  (1628)  Cro.  Car.  106  per  Croke,  J. ; 
Blackstone,  Comm.  ii  492-493  says,  '*  Qlanvil,  Magna  Carta,  Fleta,  the  Year  Books, 
Fitzherbert,  and  Finch,  do  all  agree  with  Bracton,  that  this  right  to  the  pars  rationa- 
bilis  was  by  the  common  law :  which  also  continues  to  this  day  to  be  the  general 
law  of  our  sister  kingdom  of  Scotland;"  Somner,  Gavelkind  (ed.  1726)  91-100, 
discusses  the  question;  he  says  truly  enough  that  the  authorities  are  not  clear,  e.g. 
Bracton  f.  6ob  speaks  as  if  a  man  might  make  a  will  of  all  his  movable  goods,  while 
later  on  in  the  same  folio  and  f .  61  he  speaks  as  if  a  man  might  only  leave  his  portion 
in  the  absence  of  a  custom  to  the  contrary. 

'  Y.B.  I,  2  Ed.  II.  (S.S.)  n.  at  p.  42,  "  After  debts  paid  and  testament  executed, 
the  wife  and  children  take  their  shares  by  custom  and  not  by  the  rigour  of  the  law  ; " 
Y.B.  30  Ed.  III.  ff.  25,  26 ;  Second  Instit.  33. 

^  Lyndwood  163  sub  voc.  Suis  portionibus,  '•  Quoad  has  portiones  in  Anglia, 
quantum  ad  uxores,  item  quantum  ad  liberos,  oportet  recurrere  ad  jura  Regia  et 
Regni,  et  singularium  locorum  consuetudines ;  "  cp.  178  sub  voc.  Defunctum. 


554  SUCCESSION  TO  CHATTELS 

proof,  at  least  points  to  the  once  universal  prevalence  of  the  older 
scheme.  That  the  two  parts  of  the  older  scheme — the  restriction 
on  testation  and  the  rules  of  intestate  succession — hang  together 
is  clear  from  the  survivals.  As  we  have  seen,  the  restrictions  on 
testation  lasted  longest  in  those  places  where  the  old  customary 
rules  of  intestate  succession  survived  till  the  last  century.  The 
fact,  therefore,  that  there  is  no  evidence  that  any  rules  of  intestate 
succession  were  known  in  this  period  other  than  these  old  custom- 
ary rules  would  seem  to  raise  a  presumption  that  the  other  part  of 
the  older  scheme — the  restrictions  upon  testation — was  once  also 
universal. 

I  must  now  deal  with  the  more  difficult  question  of  the  reasons 
for  the  disappearance  of  the  older  scheme  throughout  the  larger 
part  of  England. 

The  Reasons  for  the  Disappearance  of  the  Older  Scheme 

It  is  probable  that  it  will  not  be  possible  to  give  a  complete 
account  of  the  reasons  for  the  disappearance  of  the  older  scheme 
till  we  know  something  more  of  the  proceedings  of  the  ecclesiasti- 
cal courts  both  of  the  northern  and  of  the  southern  province ;  ^  for 
we  must  remember  that  there  are  really  two  things  to  be  explained  : 
firstly,  the  disappearance  of  this  scheme  over  some  parts  of  Eng- 
land, and  secondly,  its  survival  in  others.  Possibly  the  following 
considerations  will  supply  a  partial  explanation. 

In  the  first  place,  this  branch  of  the  law  comes  at  the  meeting- 
place  of  the  lay  and  the  ecclesiastical  jurisdictions.  The  common 
law  courts,  when  a  question  of  succession  to  movables  came  before 
them,  were  apt  to  refer  it  as  a  matter  testamentary  to  the  practice 
of  the  ecclesiastical  courts.^  The  ecclesiastical  lawyers,  finding 
no  very  general  rules  in  the  canon  law  upon  these  matters,  were 
apt  to  refer  to  the  common  law  and  to  the  custom  of  the  district.^ 
Thus  the  way  was  opened  for  local  divergencies,  and  for  the 
growth  of  different  practices  in  different  jurisdictions.  London 
had  a  large  jurisdiction  over  matters  testamentary  which  was 
exercised  in  the  court  of  the  Hustings.  A  considerable  part  of 
the  northern  province  was  under  the  palatine  jurisdiction  of  the 
Bishop  of  Durham  ;  ^  and  no  doubt  the  example  which  his  ecclesi- 
astical courts  set  would  not  be  without  its  influence  upon  the 
ecclesiastical  courts  in  the  other  part  of  the  province.  Wales  also 
had  its  own  peculiar  system  of  courts.^  The  ecclesiastical  courts 
of  the  southern  province  formed  a  separate  system  of  courts ;  and, 
owing  to  the  encroachments  of  the  archbishop,  jurisdiction  over 

^  P.  and  M.  ii  350. 

2Y.B.  I,  2  Ed.  II.  (S.S.)  at  p.  40;  above  553  n.  7. 

3  Above  553  n.  8.  ^  Vol.  i  109-114.  '  Ibid  117-132. 


DISAPPEARANCE  OF  OLDER  SCHEME    555 

all  the  more  important  testamentary  causes  was  being  attracted  to 
his  prerogative  court.  ^  The  fact  that  that  court  was  closer  to,  and 
therefore  more  under  the  eye  of  the  common  law  courts,  was  per- 
haps not  without  its  influence  upon  its  practice.^ 

In  the  second  place,  the  position  assigned  by  the  common  law 
to  the  married  woman  must  have  tended  to  disturb  the  older 
scheme.^  To  allow  her  to  make  a  will  of  her  part  was  clearly  im- 
possible. Lyndwood,  indeed,  tries  to  reconcile  the  rule  of  the 
common  law  as  to  her  testamentary  incapacity,  with  the  rule  of 
the  ecclesiastical  law  as  to  her  testamentary  capacity,  by  dis- 
tinguishing between  a  bequest  of  her  part  of  her  husband's 
property  and  a  bequest  of  her  own  property.'^  Seeing,  however, 
that  the  common  law  denied  her  the  power  to  have  any  property 
at  all,  this  distinction  was  hopelessly  impossible.  But  when  once 
the  husband  has  been  invested  with  the  ownership  of  his  wife's 
property,  where  can  we  draw  the  line  ?  Are  we  to  give  him  the 
ownership  of  the  chattels  and  then  take  away  a  necessary  incident 
of  that  ownership — the  right  of  disposing  of  them  by  will?  It  is 
true  that  we  might  say  that  the  husband  is  the  owner,  having  the 
powers  of  an  owner  while  he  lives,  but  limited  as  to  his  testament- 
ary powers ;  and  in  York,  Wales,  and  London  this  solution  was 
adopted.  But  the  common  lawyers  very  early  seem  to  have  come 
to  the  conclusion  that,  having  made  the  husband  the  owner  of  the 
wife's  goods,  they  could  not  limit  his  powers ;  and  the  influence 
of  their  views  would  probably  be  felt  more  strongly  in  the  Arch- 
bishop of  Canterbury's  prerogative  court  than  in  any  other  place. 

Somewhat  the  same  reasoning  will  apply  to  the  children's 
parts.  Here  again  the  influence  of  the  common  law  was  all  in 
favour  of  the  father.  I  have  already  pointed  out  that  at  this 
period  the  influence  of  the  land  law  upon  other  branches  of  the 
common  law  was  considerable.^  The  rights  of  heirs  had  ceased 
to  fetter  the  free  disposition  of  realty.®  Why  should  the  rights 
of  children  be  allowed  to  fetter  the  father's  rights  as  the  owner  of 
his  personalty?  This  again  was  a  case  in  which  separate  systems 
of  courts  might  come  to  different  conclusions.  Moreover,  in  the 
case  of  children  we  are  face  to  face  with  another  difficulty.  If 
the  rights  of  the  children  are  to  be  safeguarded,  if  the  rules  as  to 
advancement  are  to  be  properly  applied,  a  court  is  needed,  some- 
times to  appoint,  and  always  to  supervise  their  guardians,  to  settle 

1  Vol.  i  602. 

2  P.  and  M.  ii  353,  ♦*  At  times  during  the  fourteenth  century  the  mere  fact  that 
the  ecclesiastical  courts  were  doing  something  was  sufficient  to  convince  royal  justices 
and  lay  lords  that  something  wrong  was  being  done." 

3  Above  526-527,  542-543. 

^  At  p.  173  sub  voc.  Propriarum  uxorum,  "  Scias  tamen  quod  uxor  in  bonis  mariti 
absque  ejus  permissione  potestatem  non  habet,  sed  ex  ejus  permissione  sic." 
5  Vol.  ii  590.  ^  Above  75. 


556  SUCCESSION  TO  CHATTELS 

their  shares,  and  generally  to  look  after  their  interests.  The  city 
of  London  possessed  such  a  court  in  the  Court  of  Orphans.^ 
Perhaps  the  ecclesiastical  courts  in  the  province  of  York  and 
in  Wales  undertook  similar  duties.  It  would  be  interesting  to 
know  whether  the  Archbishop  of  Canterbury's  prerogative  court 
ever  attempted  to  exercise  an  effective  jurisdiction  of  this  kind, 
or,  if  it  had  attempted  to  do  so,  whether  the  common  law  courts 
would  have  permitted  it. 

Thus  the  older  restraints  on  testation  vanished  throughout  the 
greater  part  of  England.  I  must  now  deal  with  the  development 
of  the  new  rules  which  have  taken  the  place  of  that  part  of  the 
older  scheme  which  dealt  with  intestate  succession. 

T/ie  Growth  of  the  Modern  Law 

We  have  seen  that  it  was  the  administrator  appointed  by  the 
ordinary  from  among  the  relatives  of  the  deceased  who  made 
distribution  of  the  goods  of  a  deceased  intestate ;  and  we  shall 
see  that  these  administrators  were  gradually  assimilated  in  all 
respects  to  executors.^  In  theory  no  doubt  the  administrator 
should  have  distributed  the  estate  according  to  the  old  customary 
rules.  He  should  have  given  their  shares  to  the  wife  and  children, 
and  have  distributed  the  share  of  the  deceased  in  pious  uses.^ 
The  ordinaries  tried  to  secure  to  the  wife  and  children  their  right- 
ful shares  by  the  machinery  of  accounts,  inventories,  and  bonds, 
and  by  their  power  of  removal  in  cases  of  misconduct.^  But  it 
is  probable  that  the  courts  of  the  southern  province,  which  had 
been  unable  to  maintain  the  old  restrictions  upon  testation,  had 
never  at  any  time  been  very  efficient  supervisors  of  the  conduct 
of  the  administrator.  Perkins,  whose  ''Profitable  Booke"  was 
published  in  1 530,  thus  speaks  of  the  opportunities  of  the  executor 
in  his  day :  ^  "  And  it  is  to  know,  that  if  the  executors  will,  that 
they  may  use  such  deceite  that  the  legacies  shall  never  be  assigned, 
delivered  or  paid,  notwithstanding  that  they  have  goods  in  their 
hands  of  the  testator's  of  the  value  of  one  thousand  pounds  over  and 
above  the  debts  and  legacies  of  the  devisor,  etc.  For  they  jnay 
cause  strangers  to  bring  actions  of  debts  against  them  as  executors 
upon  false  obligations,  etc.  And  so  they  may  alwayes  plead, 
when  the  devisees  demand  or  sue  them  for  their  legacies  in  the 

*  Above  273  n.  2.  "^  Vol.  i.  627  ;  below  567-569. 

3  The  constitution  of  Archbishop  Stratford  enacts  that,  with  respect  to  the 
goods  of  those  who  die  intestate,  the  ordinaries,  •'  Solutis  debitis  eorundem,  bona 
quae  supererunt  in  pias  causas,  et  personis  decedentium  consanguineis,  servitoribus, 
et  propinquis,  seu  aliis  pro  defunctorum  animarum  salute,  distribuant  et  convertant, 
nihil  inde  sibi  retento,  nisi  forsan  aliquid  rationabile  pro  ipsorum  ordinariorum  labore 
fuerit  retinendum,"  Lyndwood  i8o. 

*  Below  591-593.  ^  §  571' 

i 


GROWTH  OF  THE  MODERN  LAW     557 

spirituall  court,  that  the  debts  of  the  testator  are  not  paid,  and  that 
there  are  more  suits  against  them  than  the  goods  of  the  testator 
are  sufficient  to  satisfy  or  pay:  and  by  such  covene  they  may 
defraude  the  devisees  of  their  legacies  ;  and  the  executors  may,  or 
one  of  them  may,  by  covene  confesse  the  plaintiffs  action,  and 
execution  may  be  sued  against  them  by  covene,  etc.  Or  other- 
wise they  may  deny  the  obligations,  by  pleading  that  they  were 
not  the  deeds  of  the  devisor ;  and  they  may  give  such  evidence, 
that  it  shall  be  found  against  them.  And  by  such  deceit  and 
divers  others  covenous  meanes,  the  devisees  may  be  defrauded  of 
their  legacies,  for  such  deceits  may  be  so  secretly  done,  that  they 
shall  not  be  intended  covenous.  And  therefore  it  shall  be  well 
for  such  devisors  to  deliver  such  things,  or  cause  them  to  be 
given  or  delivered  unto  them  in  their  live  times,  and  not  to  give 
them  by  way  of  legacy."  ^  If  such  tricks  were  played  by  executors 
bound  by  the  will  to  pay  legacies  of  specific  amounts,  it  is  fairly 
clear  that  administrators  bound  to  distribute  the  uncertain  amount 
left  after  the  payment  of  debts  had  still  better  opportunities.* 
One  particular  fraud — the  device  of  getting  a  grant  of  administra- 
tion to  a  man  of  straw,  who  at  once  handed  over  the  assets  as 
arranged — was  met  in  1601  by  an  enactment  that  persons  thus 
getting  the  assets  should,  to  the  extent  of  the  assets  so  got,  be 
chargeable  as  executors  de  son  tort.^  By  that  time  it  had  become 
quite  clear  that  the  ecclesiastical  courts  were  powerless  to  prevent 
these  frauds.  Though  these  courts  had  continued  to  exercise  their 
jurisdiction  in  Henry  VIII.'s  reign,  in  Edward  VI.'s  reign  they 
almost  collapsed.*  In  the  case  of  the  Duke  of  Suffolk  the  ec- 
clesiastical lawyers,  who  followed  Roman  rules  in  reckoning 
degrees  of  kinship,*  are  reported  to  have  concurred  with  the 
common  lawyers,  whose  reasonings  were  based  upon  the  law  of 
inheritance,  and  to  have  laid  it  down  that  a  mother  was  not  of 
kin  to  her  child  for  the  purpose  of  taking  out  administration.* 
We  could  want  no  better  illustration  of  the  depths  to  which  the 
ecclesiastical  law  had  sunk.  This  particular  decision  was  cor- 
rected.'''    But    still  more   troublous  times  were  in  store   for  the 

1  Cp.  Swinburn,  Testaments  254b,  255,  277 ;  below  583  and  n.  2. 

'  Godolphin,  Pt.  II.  c.  32.  In  Manningham's  Diary  (C.S.)  107  under  the  date 
Dec,  1602,  there  is  the  following  tale :  "  One  that  was  in  execution  for  debt  at  the 
suit  of  a  gent,  that  dwelt  in  a  far  country,  procured  one  of  his  acquaintaunce  to  sur- 
mise that  his  creditor  was  deade,  dyed  intestate,  and  he  next  of  kin,  and  thereupon 
to  procure  letters  of  administracion,  by  colour  whereof  he  might  have  good  oppor- 
tunity to  discharge  the  party,  which  was  effected  accordingly." 

3  43  Elizabeth  c.  8;  for  the  executor  de  son  tort  see  below  571-572. 

*  Vol.  i  593.  "^Lyndwood  180  sub  voc.  Decedentium. 

"  Swinburn  297-300  ;  cp.  Ratcliff's  Case  (1592)  3  Co.  Rep.  at  pp.  39b,  40, 
where  this  case  is  mentioned ;  •'  what  might  be  the  reasons,"  says  Swinburn, 
*'  whereby  the  civilians  were  moved  to  be  of  the  same  opinion,  that  the  mother  was 
not  of  kin  to  her  child,  I  cannot  easily  conceive." 

"^  Ibid  300b. 


558  SUCCESSION  TO  CHATTELS 

ecclesiastical  courts.  At  the  end  of  the  sixteenth  and  the  beginning 
of  the  seventeenth  centuries  the  common  law  courts  began  to 
wage  war  on  all  rival  jurisdictions.  The  ecclesiastical  courts  were 
hampered  at  every  turn.^  Writs  of  prohibition  were  issued  against 
all  who  sued  upon  administration  bonds  ;  ^  and  it  was  laid  down  in 
several  cases  at  the  beginning  of  the  seventeenth  century  that  the 
ordinary,  having  once  committed  the  administration,  was  powerless. 
He  could  neither  supervise  the  conduct  of  the  administrator  nor 
compel  him  to  distribute.^  Thus  the  law  practically  ceased  to  have 
any  clear  rules  as  to  the  persons  entitled  to  succeed  to  movables 
upon  the  death  of  one  who  had  died  intestate.  The  person  to 
whom  the  ordinary  committed  the  administration  was  in  practice 
the  only  successor  recognized.'* 

The  question  whether  the  ordinary  could  take  action  on  the 
administration  bond,  to  compel  the  administrator   to  administer 
duly  by  distributing  to  the  next  of  kin,  was  exhaustively  argued 
both  by  the  common  lawyers  and  by  the  civilians  in  1666  in  the 
case  o{  Hughes  v.  Hughes.^     In  that  case  administration  had  been 
granted  to  the  son  of  Dr.    Hughes.      Dr.  Hughes's  daughter,  the 
sister  of  the  administrator,  cited  her  brother  before  the  ecclesiastical  j 
court  to  compel  him  to  make  distribution.      He  got  a  writ  of  pro-  i 
hibition,  and  the  question  in  the  case  was  whether  a  writ  of  con-  1 
sultation  *  should  issue.      It  was  pointed  out,  truly  enough,  that 
writs  of  prohibition  to  prevent  the  ordinary  from  taking  such  action 
upon  the  administration  bond  were  unknown  for  fifty  years  after 
the  statute  of  Henry  VIII.  which  regulated  the  granting  of  ad- 
ministration.^    The  hardship  of  not  allowing  the  writ  of  consulta- 

1  Vol.  i  629. 

2  Tooker  v.  Loane  (1616)  Hob.  191 ;  cp.  Hughes  v.  Hughes  (1666)  Carter's  Rep. 
125. 

^Slawney's  Case  (1616)  Moor  864,  Hobart  83;  Fotherbie's  Case  (1627)  Cro. 
Car.  62  ;    Levanne's  Case  {163 1)  ibid  201. 

*In  the  case  of  Carter  v.  Crawley  {1683),  T.  Raym.,  at  p.  500,  a  case  which 
contains  a  very  good  historical  account  of  this  subject,  it  is  said,  "  Before  this  statute 
(of  Distribution)  the  administrator  that  had  all  the  burden  of  the  administration  had 
likewise  the  benefit,  and  when  he  had  paid  all  the  debts  and  legacies  was  never  more 
questioned  upon  his  account,  because  no  man  could  demand  the  overplus  from  him  ;  " 
cp.  Palmer  v.  Allicock  (1684)  3  Mod.  58,  60,  "  The  administration  being  once  com- 
mitted, the  person  to  whom  it  was  granted  had  the  whole  estate,  and  the  rest  of  the 
relations  of  the  deceased  were  undone,  and,  therefore,  if  his  children  were  under  age 
or  beyond  the  seas,  and  a  stranger  had  got  administration,  it  would  have  been  a  bar 
to  them." 

**  Carter's  Rep.  125. 

^  See  vol.  i  229,  and  App.  XIb  for  this  writ. 

■^  Dr.  Walker,  who  argued  for  the  defendant,  said  at  pp.  134,  135,  •'  Presently 
after  this  statute  it  was  considered,  and  by  best  advice  this  bond  was  conceived  and 
framed  .  .  .  and  this  hath  continued  ever  since.  This  bond  hath  been  put  in 
execution  a  thousand  times  per  annum.  .  .  .  For  about  fifty  years  after  21  Hy. 
VIII.  no  prohibition  was  ever  granted.  Sure  the  judges  understood  the  statute 
well  in  fifty  years'  time.  The  case  was  obvious  every  day.  Thousands  of  ad- 
ministrators called  to  account,  and  a  thousand  distributions  made," 


GROWTH  OF  THE  MODERN  LAW     559 

tion  to  issue  was  obvious.  It  might  mean  that  the  daughter  ot 
a  wealthy  man  would  be  reduced  to  beg  her  bread ;  and  other 
cases  quite  as  hard  and  quite  as  absurd  were  possible.  "  A  dies 
indebted,  and  he  hath  others  indebted  to  him,  and  these  lookt 
upon  as  desperate,  whereupon  wife  and  children  dare  not  take  it 
(administration).  The  creditor  ventures  ;  and  then  the  debts  come 
in  and  he  pays  himself  and  all  the  rest,  and  there  is  a  thousand 
pounds  surplusage.  Shall  the  creditor  have  it  ?  Sure  after  account 
given  to  the  ordinary  the  surplusage  shall  be  distributed  to  his  wife 
and  children."  ^ 

The  report  does  not  tell  us  what  was  the  result  of  the  case ; 
but  to  it  the  reporter  appends  the  note — *'et  puis  per  Act  del 
Parliament  pur  melieux  settlement  des  intestates  estates  fuit 
contrived."  In  fact  there  can  be  little  doubt  but  that  the  dis- 
cussion which  the  subject  received  in  this  case  was  the  direct 
cause  for  the  settlement  of  the  law  on  its  modern  basis  by  the 
Statute  of  Distribution  of  1670.  The  hardships  of  the  existing 
law,  though  they  failed  to  persuade  the  other  judges,  had  per- 
suaded Bridgman,  the  Chief  Justice  of  the  Common  Pleas,  that 
the  ecclesiastical  courts  ought  to  have  the  power  to  compel 
distribution. 2  The  king  himself  had  intervened  in  this  case, 
and  in  1667  had  written  to  Bridgman,  who  had  just  been 
made  Lord  Keeper  and  was  still  Chief  Justice,  requiring  him 
to  get  the  matter  settled  by  the  judges  of  the  Common  Pleas 
and  the  Privy  Council,  that  his  subjects  might  not  be  put  *'to 
the  expense  and  trouble  of  trying  jurisdictions  instead  of  getting 
their  just  rights."  ^  And  so  we  may  conclude  that  it  was  in 
consequence  of  the  stir  made  by  this  case  that  an  Administrators' 
Bill,  drawn  by  Dr.  Walker,  who  had  argued  for  the  daughter 
of  Dr.  Hughes,*  was  introduced  into  the  House  of  Lords  on 
March  4,  1668.^  This  bill  was  in  effect  the  first  draft  of  the 
Act  which  two  years  later  became  the  Statute  of  Distribution. 
The  bill,  as  originally  drafted,  gave  powers  to  the  ecclesiastical 
courts  to  take  bonds,  and  otherwise  to  compel  administrators 
to    distribute ;  ^    but,    on  its  third  reading,   the  Lords  directed 

1  Carter's  Rep.  at  p.  136. 

2  "  This  Act  (the  Statute  of  Distribution)  was  penned  by  Sir  Walter  Walker 
in  the  time  of  my  Lord  Chief  Justice  Bridgman,  when  he  was  Chief  Justice  of 
the  Common  Pleas.  He  had  liberty  to  argue  then  for  the  power  of  the  Spiritual 
Court  in  granting  distributions  ;  and  after  he  had  argued  for  three  hours,  Bridgman, 
Chief  Justice,  inclined  in  opinion  to  Sir  Walter  Walker,  but  the  other  judges 
opposed  it ;  and  it  never  obtained  in  Westminster  Hall,  but  prohibitions  were 
granted  upon  the  first  motion.  And  when  he  could  not  obtain  his  point  in  the 
Courts  of  Law,  he  procured  an  Act  of  Parliament,"  per  Holt,  C.J.,  i  Ld.  Raym, 
at  p.  474;  Dr.  Walker's  argument  will  be  found  in  Carter's  Rep.  at  pp.  130-136. 

^S.P.  Dom.  1667,  520,  ccxix  132.  ^  Above  558  n.  7. 

»  Hist,  MSS.  Com.  Eighth  Rep.  App.  Pt.  L  118  no.  145. 
« Ibid, 


560  SUCCESSION  TO  CHATTELS 

that  it  should  be  supplemented  by  a  clause  to  secure  an  equality 
of  distribution  of  intestates*  estates.  This  clause  was  drafted  by 
Kelyng,  the  Chief  Justice  of  the  King's  Bench,  assisted  by  the 
other  judges/  and  is  substantially  the  same  as  clause  3  of  the 
Act  of  1670.^  The  bill,  thus  amended,  passed  the  Lords,  but 
was  dropped  in  the  Commons.^  Two  years  later  a  new  and 
improved  bill  was  introduced.  The  clauses  of  the  old  bill  were 
retained ;  but  to  them  was  added  §  5  of  the  Act  which  lays 
down  in  detail  the  rules  as  to  the  distribution  of  intestates' 
estates,  and  §  2  which  contains  the  form  of  the  administrator's 
bond.*  The  last  two  sections  of  the  Act,  which  contain  provisos 
as  to  grants  of  administration  cum  testamento  annexo,  and  as 
to  the  continuance  of  the  Act,  were  added  by  the  House  of 
Commons.^ 

The  Act^  thus  grew  out  of  a  bill  which  was  designed  to 
strengthen  the  jurisdiction  of  the  ecclesiastical  courts  to  call 
administrators  to  account,  and  to  compel  them  to  distribute.^ 
This  fact  is  obvious  from  the  scheme  of  the  Act ;  for  it  is  clear 
that  the  clauses  which  define  the  persons  who  are  entitled  to 
take  on  intestacy  were  added  later,  and  worked  into  the  structure 
of  the  original  Bill.^  **The  whole  scope  of  the  Act,"  it  was 
said  in  Carter  v.  Crawley,^  *'was  to  make  their  jurisdiction 
(i.e.  the  jurisdiction  of  the  ecclesiastical  courts)  legal  which  be- 
fore was  condemned  by  the  king's  courts."  Ihus  it  may  be 
said  that  the  Act,  as  passed,  had  two  main  objects :  firstly,  to 
strengthen  the  jurisdiction  of  the  ecclesiastical  courts  over  the 
administration  of  the  estates  of  intestates,  and  secondly,  to  define 
the  rights  of  persons  entitled  to  take  on  intestacy.  Let  us  glance 
briefly  at  the  effect  of  the  Act  on  these  two  branches  of  the  law. 

(i)  The  Act  failed  to  effect  the  first  of  the  objects  which 
it  set  out  to  secure.  In  1678  North,  C.J.,  proposed,  without 
success,  to  amend  the  Act  by  giving  to  these  courts  further 
powers  to  call  administrators  to  account. ^^  The  common  law 
courts  still  continued  to  regard  the  ecclesiastical  courts  with 
jealousy ;  ^^   and  we  have  seen  that  the  jurisdiction  assumed  by 

1  Hist.  MSS.  Com.  Eighth  Rep.  App.  Pt.  I.  118  no.  145. 

2  Hist.  MSS.  Com.  Ninth  Rep.  App.  Pt.  II.  3  no.  18. 
'Eighth  Rep.  App.  Pt.  I.  118  no.  145,  122  no.  167. 

4  Ninth  Rep.  App.  Pt.  II.  3  no.  18. 

'  Ibid.  « 22,  23  Charles  II.  c.  10. 

'§§1-3.  ''§§5-«. 

» (1683)  T.  Raym.  at  p.  504. 

"Hist.  MSS.  Com.  Ninth  Rep.  App.  Pt.  II.  115  no.  573— probably  his  pro- 
posed amendments  failed  to  pass  the  House  of  Commons. 

"See  e.g.  Clarke  v.  Clarke  (1701)  i  Ld.  Raym.  585,  \\here  the  King's  Bench 
prohibited  the  ecclesiastical  court  from  compelling  a  debtor  to  the  estate  to  pay 
what  he  owed  into  court  that  it  might  be  distributed,  because  this  would  amount 
to  allowing  the  ecclesiastical  court  "  to  hold  plea  of  debt." 


GROWTH  OF  THE  MODERN  LAW     561 

the  court  of  Chancery  over  all  questions  relating  to  the  ad- 
ministration of  assets,  and  the  manner  in  which  that  court 
ignored  the  ecclesiastical  courts,  deprived  those  courts  of  all 
effective  jurisdiction.^ 

(ii)  On  the  other  hand,  the  clauses  of  the  Act  which  define 
the  rights  of  the  persons  entitled  to  take  on  intestacy  have  made 
our  modern  law.  These  clauses  were  added  to  by  a  clause  of 
the  Statute  of  Frauds  which  made  it  clear  that,  in  spite  of  the 
Statute  of  Distribution,  the  husband's  right  to  take  administra- 
tion to  his  wife  was  still  a  beneficial  right ;  ^  and  by  a  clause 
in  a  statute  of  1685  which  gave  to  the  brothers  and  sisters  of 
an  intestate  the  right  to  share  equally  with  the  intestate's  mother.^ 
With  these  two  additions  these  clauses  of  the  Act  contained  till 
1890  the  whole  of  the  law  on  this  topic;  and  the  modification 
in  favour  of  the  widow  made  by  the  Intestate's  Estates  Act  of 
that  year  is  slight.* 

The  results  of  this  legislation  up  to  1865  may  be  stated 
thus :  {a)  the  husband  by  taking  out  administration  has  the 
right  to  succeed  to  such  of  his  wife's  property  as  had  not  already 
vested  in  him  jure  mariti — i.e.  to  choses  in  action  belonging 
to  his  wife  not  reduced  into  possession  during  the  marriage.^ 
{b)  The  wife  has  a  right  to  a  third  of  her  husband's  property 
if  there  are  children  of  the  marriage  or  representatives  of  children 
surviving,  and  a  half  if  there  are  not.^  {c)  Two-thirds  of  the 
property  in  case  there  is  a  widow,  the  whole  in  case  there  is 
not,  goes  to  the  children.'''  If  there  are  no  children  half  the 
property  in  case  there  is  a  widow,  and  the  whole  in  case  there 
is  not  goes  to  the  next  of  kin ;  ^  and  if  there  are  no  next  of 
kin  to  the  crown.  ^  {d)  Generally  degrees  of  kindred  are  com- 
puted by  reckoning  up  from  the  intestate  to  the  common  an- 
cestor, and  from  the  common  ancestor  to  the  claimant,  and 
counting  each  step  a  degree.  ^^  But  certain  exceptions  to  this 
rule   were    introduced    by  the   Acts  or  by  the  construction  put 

1  Vol.  i  629 ;  cp.  Bk.  iv  Pt.  I.  cc.  4  and  8. 

2  29  Charles  II.  c  3  §  25;  that  this  was  the  law  before  the  Statute  is  clear 
from  Ognel's  Case  (1597)  4  Co.  Rep.  at  f.  51b,  and  the  majority  of  the  court  in 
Johns  V.  Rowe  (1628)  Cro.  Car.  106. 

3 1  James  II.  c.  17  §  7 ;  '*  the  statute  of  i  Jac.  2  allowed  the  proceedings  of 
the  spiritual  court  to  be  right,  as  the  law  then  stood,  but  thought  it  unreasonable 
that  the  mother  (who  might  marry  again)  should  carry  all  away;  and  therefore 
the  parliament  let  in  the  intestate's  brothers  and  sisters  equally  with  the  mother," 
Blackborough  v.  Davis  (1701)  i  P.  Wms.  at  p.  49  per  Holt,  C.J. 

*  53,  54  Victoria  c.  29.  ^  Above  527. 

•  22,  23  Charles  II.  c.  10  §§  5,  6. 

'Ibid.  8  Ibid. 

'  Hensloe's  Case  (1600)  9  Co.  Rep.  38b — the  Crown's  right  is  a  common 
law  right  not  dependent  on  the  statute. 

"Carter  v.  Crawley  (1683)  T.  Raym.  at  p.  506;  Mentney  v.  Petty  (1722) 
Prec.  Ch.  593. 

VOL.  III.— 36 


562  SUCCESSION  TO  CHATTELS 

upon  them.  Thus — the  issue  of  deceased  children  represent 
their  ancestor ;  ^  if  any  of  the  brothers  or  sisters  of  the  deceased 
survive,  the  children  of  a  deceased  brother  or  sister  represent 
their  parents;^  the  father  of  an  intestate  excludes  the  mother,^ 
and  the  mother  shares  with  the  brothers  and  sisters  of  the 
deceased  and  with  the  children  of  deceased  brothers  and  sisters ;  * 
grandparents  are  postponed  to  brothers  and  sisters  of  the  deceased/ 
{e)  After  considerable  debate  it  was  decided  by  the  House  of 
Lords  in  1690,  on  the  construction  of  the  Statute  of  1670,  that 
collaterals  of  the  half  blood  rank  equally  with  collaterals  of  the 
whole  blood  in  the  same  degree.^  (/)  If  any  child  other  than 
the  heir  at  law  has  received  an  advancement  from  his  or  her 
father  in  land,  or  if  any  child  including  the  heir  at  law  has 
received  an  advancement  from  his  or  her  father  in  money, 
and  the  father  has  died  completely  intestate,  such  child  must 
bring  the  amount  of  the  advancement  into  hotch-pot  if  he 
wishes  to  share  with  his  brothers  and  sisters.'''  This  is  a  rule 
founded  on  the  custom  of  London  ^  which  is  designed  to  secure 
the  main  purpose  of  the  Act — equality  of  distribution.^  These 
rules  were  ascertained  by  decisions  upon  the  construction  of 
these  Acts  of  the  end  of  the  seventeenth  and  the  beginning  of 
the  eighteenth  centuries.  As  the  result  of  this  legislation  and 
these  decisions  the  common  law  obtained  a  reasonable  system 
of  intestate  succession — though,  as  we  have  seen,  it  was  not 
till  1856  that  this  system  became  universal.^^ 

In  this  system  of  intestate  succession  the  marks  of  the  three 
different  periods  through  which  this  branch  of  the  law  has  passed 

I22,  23  Charles  II.  c.  10  §§  3,  5;  Carter  v.  Crawley  (1683)  T.  Raym.  at 
p.  500. 

2  22,  23  Charles  II.  c.  10  §  7 ;  Carter  v.  Crawley  at  p.  506 ;  Walsh  v.  Walsh 
(1695)  Free.  Ch.  54 ;  Pett's  Case  {1700)  i  P.  Wms.  25. 

^  Blackborough  v.  Davies  (1701)  i  P.  Wms.  at  pp.  48,  49  per  Holt,  C.J. 

*Ibid  ;  I  James  II.  c.  17  §  7. 

^  Evelyn  v.  Evelyn  (1754)  3  Atk.  763,  following  a  case  decided  in  1708. 

«Watt  V.  Crook,  Hist.  MSS.  Com.  Thirteenth  Rep.  App.  Pt.  V.  8-9  no. 
239 — Holt,  C.J.,  said,  "  I  am  of  opinion  that  the  half  blood  ought  to  have  the 
same  share.  I  confess  it  is  hard,  but  we  arc  bound  by  the  Statute  .  .  .  the  law 
has  been  constantly  held  so,  and  though  it  is  hard,  yet  the  words  of  the  Act 
bind  us  up  ;  "   S.C.  Shower,  P.C.  108,  where  the  precedents  are  all  cited. 

'  22,  23  Charles  II.  c.  10  §  5  ;  Vachell  v.  Jeffreys  (1701)  Prec.  Ch.  170 ; 
Holt  V.  Frederick  (1726)  2  P.  Wms.  356 ;  Edwards  v.  Freeman  (1727)  ibid  at 
pp.  440,  441  ;  the  rule  applies  to  the  issue  of  a  deceased  child  claiming  the 
parent's  share  by  representation,  Proud  v.  Turner  (1729)  2  P.  Wms.  560 ;  it 
was  held  in  Fouke  v.  Lewen  (1682)  i  Vern.  88  that  '*  any  provision  made  by 
the  father  in  his  lifetime  for  his  children  is  an  advancement  within  the  custom 
(of  London) ;  "  the  most  recent  case  on  this  subject  has  emphasized  the  view  that 
the  property  or  money  must  be  given  as  a  provision  of  a  permanent  kind,  Re 
Scott  [1902]  I  Ch.  at  p.  17  per  Cozens  Hardy,  L.J. 

8  Holt  v.  Frederick  (1728)  2  P.  Wms.  at  p.  358  per  King,  L.C. 

"  Edwards  v.  Freeman  (1727)  2  P.  Wms.  at  p.  443  per  Raymond,  C.J. 

^"  Above  552. 


ORIGINS  563 

are  plainly  visible.  The  rights  of  the  wife  and  children  and  the 
rules  as  to  advancement  remind  us  of  the  earliest  period  when  the 
old  customary  rules  prevailed.  The  rights  of  the  husband  remind 
us  of  the  intermediate  period,  when  the  person  who  got  adminis- 
tration was  the  intestate  successor.  The  rights  of  the  next  of  kin 
depend  upon  the  statutes,  and  the  cases  interpreting  these  statutes, 
which  compel  administrators  to  distribute  in  the  manner  which 
they  prescribe. 

§  3.   The  Representation  of  the  Deceased 

At  the  present  day  the  normal  representatives  of  the  deceased 
are  either  executors  or  administrators.  The  law  also  recognizes 
an  abnormal  representative  in  the  shape  of  the  executor  de  son 
tort.  In  this  section  I  shall  deal,  firstly,  with  the  origins  of  these 
various  representatives ;  secondly,  with  the  mode  in  which  and  the 
extent  to  which  they  became  the  representatives  of  the  deceased 
during  this  period  ;  and  thirdly,  with  their  position  at  common  law 
and  in  the  ecclesiastical  courts. 

Origins 

In  modern  law  there  is  little  practical  difference  between  the 
position  of  the  executor  and  that  of  the  administrator.  There  are 
a  few  differences  between  them  on  some  minor  points,  for  instance 
as  to  the  transmissibility  of  their  office,  or  as  to  the  time  when  the 
estate  of  the  deceased  vests  in  them ;  but  in  all  essential  points 
their  position  as  the  representatives  of  the  deceased  is  identical. 
This  identity  is  not  primaeval.  It  is  the  executor  who  is  the  model 
to  which  the  administrator  has  been  gradually  assimilated.  I  shall 
therefore  deal  firstly  with  the  executor,  and  secondly  with  the  ad- 
ministrator. Lastly  I  shall  say  a  few  words  about  the  executor 
de  son  tort. 

(i)  The  executor. 

In  the  fifteenth  and  sixteenth  centuries  it  will  have  become 
possible  to  compare  the  English  executor  with  the  Roman  hcBres  ;  ^ 
but  it  is  not  to  the  hceres  of  Roman  law  that  we  must  look  for  the 
origins  of  the  executor.  We  must  probably  look  to  the  Germanic 
Salman}  Though  we  see  no  distinct  traces  of  such  a  person  in 
the  Anglo-Saxon  period,  he  appears  in  Glanvil ;  ^  and  there  can  be 

1  Lyndwood  172  sub  voc.  Intestatis,  **  Executores  universafes,  qui  loco  haeredis 
sunt ; "  Doctor  and  Student  i  c.  19,  •♦  The  heir  which  in  the  laws  of  England  is 
called  an  executor." 

2  P.  and  M.  ii  333,  334;   L.Q.R.  i  164;   Goffin,  The  Testamentary  Executor 

35-37. 

8  vii  5 ;  above  536. 


564  SUCCESSION  TO  CHATTELS 

little  doubt  but  that  this  person,  familiar  in  the  continental  codes 
of  law  and  in  the  canon  law,^  was  introduced  into  England  after 
the  Conquest. 

We  shall  see  that  the  Salman  was  a  person  to  whom  property 
was  transferred  in  order  that  he  might  convey  it  according  to  the 
grantor's  directions.^  A  transfer  to  a  Salman  was  employed  to 
effect  various  objects;^  but  it  was  especially  useful  to  persons 
who  wished  to  make  a  revocable  will.  We  have  seen  that 
the  older  forms  of  gifts  mortis  causa  were  rather  conveyances  or 
deathbed  distributions  than  revocable  wills.*  By  means  of  the 
Salman  a  man  could  make  a  revocable  will,  because  such  a  person 
was  always  obliged  to  consent  to  a  revocation  by  the  donor  of  the 
authority  with  which  he  had  been  invested.  ^  Moreover,  it  became 
possible  to  do  many  other  things  in  a  will  besides  merely  leaving 
property,  because  the  testator  now  had  a  person  who  was  bound  to 
comply  with  his  wishes.^  We  have  seen  that  the  canon  law  was  in 
favour  of  the  utmost  liberty  of  testation."^  It  did  not  neglect  so 
useful  an  agent  as  the  Salman ;  and  just  as  the  forms  of  making  a 
will  became  simplified,  so  did  the  forms  of  appointing  a  Salman, 
"At  first,"  says  Mr.  Goffin,  "the  salmann  or  ' testamentary  ex- 
ecutor,' as  we  may  now  call  him,  was  appointed  in  the  old  way — 
a  bilateral  act  in  which  both  the  testator  and  the  executor  took 
part  was  necessary.  It  became  the  general  practice  at  a  later  time, 
however,  to  appoint  the  executor  in  a  clause  of  the  will  itself,  pos- 
sibly without  his  own  knowledge  till  the  will  was  opened  after  the 
testator's  death."  ^  These  simplified  forms  were  already  in  use 
when  the  executor  makes  his  appearance  in  this  country.  Thus 
the  Salman,  when  used  for  the  purpose  of  effecting  a  last  will, 
becomes  the  "executor"  of  the  will — the  man  who  puts  it  into 
force  and  sees  that  it  is  carried  out.  The  canon  law  knew  many 
"executors"  of  different  kinds  of  legal  acts.^  English  law  has 
borrowed  one  of  those  executors — the  testamentary  executor  ;  and, 
in  the  language  of  English  law,  the  executor  has  come  to  mean  a 
person  appointed  by  a  testator  to  execute  his  will. 

1  Goffin  chap,  ii ;  cp.  Brissaud  1585-1587. 

2Bk.  iv  Pt.  I.  c.  2  ;  cp.  Brissaud  1444,  1445. 

3  Goffin  25,  26,  27.  *  Vol.  ii  95-96. 

'  Brissaud,  1444-1445,  "  II  en  est  question  tout  d'abord  a  propos  de  transmissions 
mortis  causa ;  expose  k  un  danger  de  mort,  je  veux  gratifier  quelqu'un  apres  mon 
d^ces;  iftais  si  je  survis,  j'entends  conserver  mes  biens ;  pour  atteindre  ce  but,  je  les 
confie  k  un  tiers,  a  celui  qu'on  appellera  un  Salmann  k  I'^poque  f^odale,  en  lui  fai- 
sant  promettre  d'ex^cuter  mes  volont^s ;  par  1^  je  serai  plus  assure  de  les  recouvrer 
en  cas  de  survie ;  "  Goffin  26,  28 — it  would  appear  that  the  revocation  of  the  author- 
ity was  not  a  unilateral  act  of  the  conveyor,  though  the  Salman  could  not  object 
to  it. 

*  Above  548 ;  cp.  Goffin  29.  "^  Above  535. 

"  The  Testamentary  Executor  32. 

^Lyndwood  168  sub  voc.  Executor,  *' Brevitef  scias,  quod  in  jure  reperiuntur 
executores  sententiarum,  negotiorum,  praeceptorum,  testamentorum,  et  gratiarum." 


ORIGINS  565 

The  complete  separation  in  this  country  between  the  law  of 
inheritance  to  realty  and  the  law  of  succession  to  personalty  gave 
the  executor  a  far  more  important  place  in  England  than  he  took 
on  the  continent  On  the  continent  his  claims  to  act  as  the  re- 
presentative of  the  deceased  were  disputed,  and  often  successfully 
disputed,  by  the  heir.^  In  England  he  gradually  became  the  chief 
testamentary  representative  of  the  deceased,  and  will  no  doubt  be- 
come in  time  his  only  representative.^  Even  in  the  fifteenth  cen- 
tury, as  we  have  seen,  he  has  begun  to  look  like  the  Roman  haeres  ; 
and  learned  canonists  are  saying  that  a  will  which  does  not  appoint 
an  executor  is  no  true  testament.  We  have  seen  that  the  latter 
theory  was  a  piece  of  borrowed  Romanism  which  never  had  much 
influence  upon  English  law.^  Both  in  the  actual  rules  of  law  and 
in  the  history  of  the  idea  of  the  representation  of  a  deceased  person, 
characteristics  which  are  derived  from  the  office  of  the  ancient 
Salman  are  at  once  more  permanent  and  more  important.  Thus, 
the  office  of  Salman  was  hereditary  and  devolved  on  the  Salman's 
heir.*  The  office  of  executor  is  transmissible  to  the  executor  of 
an  executor.^  Again,  from  the  first,  the  beneficiaries  under  the 
will  could  enforce  their  rights  against  the  Salman.^  These  rights 
might  be  not  only  the  rights  of  legatees,  but  also  of  creditors  if 
the  testator  had  directed  in  his  will  that  his  debts  should  be  paid. 
This  was  the  position  which  the  executor  occupied  in  the  thirteenth 
century.'''  It  is  most  probable,  therefore,  that  it  was  through  the 
Salman  that  the  law  became  familiarized  with  an  executor  who 
could  act  as  the  representative  of  a  deceased  person ;  and  we  shall 
see  directly  that  it  was  the  executor  which  the  legislature  took 
as  its  model  when  it  wished  to  give  the  administrator  this 
position.^ 

Testators  usually  appointed  more  than  one  executor  in  their 
wills.  Sometimes  they  appointed  special  executors  for  special 
purposes.^     Often  they  appointed  certain  persons  executors,  and 

^  Goffin  chaps,  iv  and  v ;  cp.  Brissaud  1587,  1588,  "  Une  fois  qu'on  se  fut  habi- 
tue k  faire  passer  I'ensemble  du  patrimonie  k  des  Idgataires  par  rintermddiare  des 
ex^cuteurs,  I'institution  d'heritier  au  sens  remain  rentra  dans  les  habitudes.  De  ce 
moment  date  le  ddclin  de  1 'execution  testamentaire.  .  .  .  L 'execution  tomba  en  de- 
suetude dans  les  pays  de  droit  6crit ;  elle  se  maintint  dans  les  pays  des  coutumes 
.  .  .  mais  le  role  des  exdcuteurs  se  borna  au  payement  des  legs." 

2  The  Land  Transfer  Act  of  1897  makes  a  long  step  forward  in  this  direction. 

3  Above  537.  *  Goffin  30. 

5  Y.BB.  34  Hy.  VI.  Mich.  pi.  26 per  Choke;  10  Ed.  IV.  Pasch.  pi.  i^er  Catesby. 
But  a  statute  was  needed  to  put  such  executors  of  executors  in  the  same  position  as 
their  testators,  25  Edward  III.  st.  5  c.  5 ;  we  shall  see  that  it  was  only  gradually  that 
the  executor  became  a  representative  for  all  purposes,  and  that  developments  in  this 
direction  were  strictly  construed,  below  572  seqq. 

^  Goffin  26,  27.  '  Below  573. 

831  Edward  III.  st.  i  c.  ir;  below  568-569. 

''Test.  Ebor.  i  407  (1424) — a  separate  executor  for  goods  at  Cambridge;  cp. 
Y.B.  8  Ed.  IV.  Pasch.  pi.  12. 


566  SUCCESSION  TO  CHATTELS 

others,  often  more  distinguished  men,  supervisors  or  coadjutors  ^ 
— we  are  reminded  sometimes  of  the  more  primitive  period  when 
presents  were  given  to  the  king  or  other  lord  that  the  will  might 
stand.^  It  was  held  in  1 346  that  if  these  supervisors  took  part  in 
the  administration  of  the  estate  they  could  be  charged  as  executors  ; 
but  that  they  need  not  be  named  in  a  writ  brought  against  execu- 
tors, as  the  testator  had  only  appointed  them  as  assistants.^  This 
view  of  the  law  was  followed  in  1443,  provided  that  the  testator 
had  given  them  power  to  administer  his  goods,  since  any  words 
showing  that  a  testator  intended  that  a  person  should  administer 
were  sufficient  to  make  that  person  executor.*  On  the  other  hand, 
it  was  decided  that  the  appointment  of  a  person  merely  as  super- 
visor of  certain  named  executors  with  no  power  to  administer  could 
not  take  effect  if  those  executors  declined  to  act.^  On  the  death 
of  any  of  the  joint  executors,  the  office  survived  to  the  others ;  ^ 
and,  as  we  have  seen,  on  the  death  of  the  last  surviving  executor 
it  went  to  his  executor  if  he  left  a  will  appointing  an  executor. '' 

Since  the  executor  was  appointed  by  the  deceased,  the  pro- 
perty of  the  deceased  vested  in  him  from  the  death.  ^  But  he 
could  not  prove  his  title  till  he  had  got  probate  of  the  will ;  ^  and 
therefore  without  such  probate  he  could  not  sue  in  any  court.  ^^ 

(ii)   Tke  Administrator. 

Swinburn,^^  writing  in  I  590,  tells  us  that  there  are  three  kinds 
of  executors.  There  is  the  executor  testamentary  with  whom  we 
have  just  dealt ;  there  is  the  executor  legitimus,  ''  which  deriveth 
his  authoritie  from  the  law,"  who  is  the  bishop  or  ordinary  of  every 
diocese;  and  there  is  the  executor  dativus,  '* which  deriveth  his 
authoritie  from  the  bishop  or  ordinarie,"  who  is  the  person  usually 
known  as  the  administrator.  Such  an  administrator  is  appointed 
either  if  a  man  die  intestate,  or  if  he  die  testate  without  having 
appointed  executors.  Being  merely  the  delegate  of  the  ordinary 
he  cannot  delegate  his  powers  ;^^  and,  therefore,  if  he  die,  his 
executor  will  not  be  the  representative  of  the  person  whose  goods 

1  Test.  Ebor.  i  234,  235  (will  of  John  of  Gaunt)  the  king  is  made  "  de  cest  mon 
testament  souverein  surveoir  et  commandour;  "  cp.  Test.  Vet.  375,  534,  593. 

2  Vol.  ii  93-94,  96.  8Y.B.  20  Ed.  III.  (R.S.)  ii  430. 

^Y.B.  21  Hy.  VI.  Mich.  pi.  \^  per  Newton,  Fulthorpe,  and  Ascue,  dissentients 
Paston. 

^  Ibid  at  p.  6  per  Newton. 

« Y.BB.  33-35  Ed.  1.  (R.S.)  546 ;  39  Hy.  VI.  Hil.  pi.  9. 

'  Above  565. 

8  Y.B.  10  Ed.  IV.  Pasch.  pi.  i  Littleton  says,  "  II  convient  que  le  propertie  soit ; 
en  ascun  person,  et  il  ne  puit  estre  en  le  testator  car  il  n'est  en  esse,  ergo  il  est  en 
executor; "  cp.  Y.B.  35  Hy.  VI.  Mich.  pi.  39. 

9  Y.B.  7  Hy.  IV.  Trin.  pi.  19. 
w  Y.B.  21  Hy.  VI.  Hil.  pi.  4  (p.  24)  per  Paston. 
"  Testaments  Pt.  vi  §  i. 
"Cp.  Y.BB.  18  Hy.  VI.  Mich.  pi.  7;  10  Ed.  IV.  Pasch.  pi.  i  per  Choke. 


ORIGINS  567 

he  was  administering.  The  ordinary  must  make  a  new  grant  of 
administration.^  In  the  fourteenth  century  it  seems  to  have  been 
admitted  that  if  a  sole  executor  was  mentally  defective  the  ordinary 
could  grant  administration  to  the  executor  and  another ;  ^  and  in 
the  sixteenth  century  various  cases  were  recognized  in  which  it  was 
possible  to  appoint  an  administrator  for  a  limited  period,  e.g. 
durante  minore  aetate;  or  in  special  circumstances,  e.g.  where  one 
makes  another  his  executor  a  year  after  his  death,  or  an  executor 
becomes  insane.^  But  the  jealousy  which  existed  between  the 
ecclesiastical  and  the  common  law  courts  all  through  their  history, 
and  especially  in  the  seventeenth  century,  retarded  the  settlement  of 
the  law  as  to  these  limited  grants  of  administration.  Thus  it  was 
held  in  1 69  r  that  no  grant  of  administration  pendente  lite  could  be 
made  when  there  was  a  dispute  as  to  the  existence  of  a  will  which 
appointed  executors,  because  the  existence  of  an  executor  took 
away  the  jurisdiction  to  make  such  a  grant ;  *  and  in  1 70 1  that  the 
fact  that  an  executor  "  was  an  absconding  person  incapax,  etc.,"  was 
no  justification  for  refusing  him  probate.^  However,  in  the  course 
of  the  eighteenth  century,  when,  largely  in  consequence  of  the 
Statutes  of  Distribution,^  the  jealousy  of  the  exercise  of  this  branch 
of  the  ecclesiastical  jurisdiction  had  abated,  these  limited  grants 
were  allowed. '^  But  we  shall  see  that  one  of  the  consequences  of 
the  idea  that  no  administration  could  be  granted  if  an  executor  had 
been  appointed,  which  was  an  effect  of  the  old  jealousy  between  the 
common  law  and  the  ecclesiastical  courts,  was  not  got  rid  of  till  the 
present  century.^ 

Swinburn's  words  as  to  the  executor  legitimus  and  the  executor 
dativus  really  represent  two  different  stages  in  the  history  of  the 
representation  of  one  who  has  died  without  having  appointed  an 
executor ;  and  both  these  stages  have  left  their  traces  in  our  law. 
The  first  stage  is  the  period  before  the  statute  of  1357,^  and  the 
second  stage  is  the  period  after  that  statute. 

In  the  earliest  period  it  was  the  ordinary  who  took  possession 
of  and  administered  the  goods  of  a  deceased  person  who  had  died 
intestate  or  without  having  appointed  an  executor ;  ^^  and  to  the 

1  Below  569. 

2  "  The  Ordinary  desired  him  to  administer,  and  made  an  order  to  that  effect, 
because  he  distrusted  the  ability  of  her  that  was  named  executrix.  Since,  then,  he 
has  had  the  administration,  why  should  not  his  acquittance  be  good,"  the  Eyre  of 
Kent  (S.S.)  ii  40  per  Bereford,  C.J. 

3  Graysbrook  v.  Fox  (1565)  Plowden  at  pp.  281-282 ;  Piggot's  Case  (1598)  5  Co. 
Rep.  2ga ;  Prince's  Case  (1600)  ibid  29b ;  Hills  v.  Mills  (1692)  i  Salk.  36. 

*  Frederick  v.  Hook  Carth.  153. 
•*  R.  V.  Raynes  i  Salk.  299. 

^  See  Hewson  v.  Shelley  [1914]  2  Ch.  at  p.  39  per  Phillimore,  L.J. 
'  See  e.g.  Walker  v.  Woolaston  (1731)  2  P.  Wms.  576,  which  in  effect  overrules 
Frederick  v.  Hook  Carth.  153. 

8  Below  569-571.  »  31  Edward  III.  st.  i  c,  n. 

1°  Vol.  i  627. 


568  SUCCESSION  TO  CHATTELS 

end  the  property  in  the  goods  of  one  who  had  so  died  vested  upon 
his  death  in  the  ordinary.^  But  though  the  ordinary  took  the 
goods,  he  was  in  no  sense  a  true  representative.  He  was  not  liable 
to  be  sued  nor  was  he  able  to  sue.  A  statute  of  1285  made  the 
ordinary  liable  to  be  sued  as  if  he  had  been  an  executor ;  ^  but  no 
statute  enabled  the  ordinary  to  sue.^  In  order  to  carry  out  his 
duties  the  ordinary,  though  not  legally  bound  to  do  so,  was  in  the 
habit  of  appointing  some  person  or  persons  to  administer  the 
property  of  the  deceased.  But  these  persons  were  simply  the 
delegates  of  the  ordinary,  and  stood  in  the  same  position  with  regard 
to  liability  to  be  sued  and  capacity  to  sue  as  their  principal.^  They 
could  be  sued  "by  the  equity  of"  the  statute  of  1285  ;  and  when 
sued  they  were  always  sued  as  executors.  "  Let  me  tell  you,"  said 
Bereford,  C.J.,  in  131 3-13 14,  "that  if  you  want  to  bind  a  man  to 
answer  for  another's  debts  you  must  bind  him  as  executor,  and  not 
as  administrator.  Unless  you  say  that  he  is  executor  you  will  not 
be  answered.  ...  It  is  the  fact  of  having  administered  that  binds 
him  to  answer;  but  it  is  necessary,  if  you  are  to  force  him  to 
answer,  that  he  have  these  two  qualifications,  that  he  be  an  executor, 
and  that  he  has  subsequently  administered."  ^  But  they  could  not 
sue.  "  It  is  unheard  of,"  said  Stonore,  C.J.,  in  1345,^  "that  those 
to  whom  administration  has  been  entrusted  by  the  ordinary  have 
any  action,  except  in  respect  of  the  goods  of  which  they  have  been 
seised  and  from  which  they  have  been  ousted."  We  are  not 
surprised  to  find  that  in  1343  the  commons  petitioned  that  these 
delegates  of  the  ordinary  should  be  allowed  to  sue."  The  petition 
was  refused ;  and  it  was  not  till  1357  that  a  remedy  was  provided. 
The  statute  of  1357  really  originated  the  administrator.^  It 
marks  the  point  when  the  affairs  of  the  man  who  had  appointed 

1  Now  in  the  ordinary's  successor,  the  President  of  the  Probate,  Divorce,  and 
Admiralty  Division  of  the  High  Court,  see  21,  22  Victoria  c.  95  §  10. 

2 13  Edward  I.  st.  i  c.  19,  "  Whereas  after  the  death  of  a  person  dying  intestate, 
which  is  bounden  to  some  other  for  debt,  the  goods  come  to  the  ordinary  to  be 
disposed ;  the  ordinary  from  henceforth  shall  be  bound  to  answer  the  debts  so  far 
forth  as  the  goods  of  the  dead  will  extend,  in  such  sort  as  the  executors  of  the  same 
party  should  have  been  bounden,  if  he  had  made  a  testament ;  "  see  below  573-574 
for  an  explanation  of  this. 

5  Y.B.  18  Hy.  VI.  Mich.  pi.  7,  "  Al  Common  Ley  ne  fuit  aucun  action  done  pur 
I'ordinary  ne  encontre  luy,  mes  or  par  le  Statut  action  est  don  encontre  luy,  mes  le 
Statut  ne  done  action  pur  luy  "  per  Fortescue,  C.J. ;  cp.  Graysbrook  v.  Fox  (1565) 
Plowden  at  pp.  277,  278. 

4Y.B.  45  Ed.  III.  Trin.  pi.  4;  Regist.  Palat.  Dunelm.  i  369,  cited  P.  and  M.  ii 
359.  360;  Plowden  278  n.  e;  and  it  would  seem  that  if  the  ordinary  had  not 
administered  himself,  but  had  appointed  administrators,  he  could  not  be  sued,  but  they 
only,  Y.B.  12  Rich.  II.  91-95. 

"^The  Eyre  of  Kent  (S.S.)  ii  56;  cp.  Y.BB.  38  Ed.  III.  Mich.  p.  21 ;  41  Ed.  III. 
Hil.  pi.  6  per  Belknap ;  lo  Ed.  IV.  Pasch.  pi.  i  per  Choke. 

« Y.B.  18,  19  Ed.  III.  (R.S.)  534,  536;  cp.  Y.B.  19  Ed.  III.  (R.S.)  12  ;  Plowden 
278. 

'R.P.  ii  142. 

*3i  Edward  III.  st,  i  c.  11 ;  cp.  Plowden  278. 


ORIGINS  569 

no  executor  were  taken  from  the  hands  of  the  ordinary,  or  ''ex- 
ecutor legitimus,"  and  entrusted  to  the'administrator,  or  "executor 
dativus."  It  compelled  the  ordinary  to  appoint,  "  from  the  next 
and  most  lawful  friends  of  the  deceased  person  intestate,"  some 
person  or  persons  to  administer  the  property  of  the  deceased  ;  and 
it  was  expressly  enacted  that  the  persons  so  appointed  should 
"have  an  action  to  demand  as  executors  the  debts  due  to  the  said 
person  intestate  in  the  king's  court,  for  to  administer  and  to  dis- 
pend  for  the  soul  of  the  dead  ;  and  shall  answer  also  in  the  king's 
court  to  other  to  whom  the  said  dead  person  was  holden  and 
bound,  in  the  same  manner  as  executors  shall  answer ;  and  they 
shall  be  accountable  to  the  ordinaries,  as  executors  be  in  the  case 
of  testament."  Henceforward  administrators  appointed  under  this 
statute  and  the  later  statute  of  Henry  VIII.  ^  are,  like  executors, 
the  representatives  of  the  deceased.  We  shall  see  that  these 
changes  are  intimately  connected  with  the  changes  in  the  position 
of  the  executor  which  made  him  the  representative  of  the  de- 
ceased.^ 

But  the  older  ideas  which  regarded  the  administrator  as  simply 
the  delegate  of  the  ordinary  have  left  their  traces  in  the  law. 
The  ordinary  could  appoint  either  one  or  several  administrators  ; 
and,  in  the  latter  case,  the  office  survived  to  the  other  or  others 
on  the  death  of  one.  But  when  the  last  surviving  administrator  died 
the  office  did  not  go  to  his  executor.  A  new  appointment  must 
be  made.^  Seeing  that  the  administrator  was  the  delegate  of  the 
ordinary,  the  ordinary  had  powers  of  revoking  the  letters  of  ad- 
ministration and  of  making  a  new  appointment,  which  he  did  not 
possess  in  the  case  of  the  executor.*  The  property  of  the  de- 
ceased vested  in  the  administrator  from  the  time  of  the  grant  of 
the  letters  of  administration ;  ^  but  it  was  recognized  that  his 
title  would  be  considered  to  relate  back  to  the  death  for  the  pur- 
pose of  enabling  him  to  sue  in  respect  of  matters  happening  be- 
tween the  date  of  the  death  and  the  grant  of  administration.^ 
Another  result,  which  must  be  attributed  partly  to  the  idea  that 
the  administrator  is  simply  the  delegate  of  the  ordinary,  and 
partly  to  the  jealousy  which  existed  between  the  common  law  and 
the  ecclesiastical  courts,  was  the  rule  that  if  a  will  appointing  an 
executor  was  in  existence,  a  grant  of  administration  was  void  ab 
initio,  and,  consequently,  that  all  transfers  of  property  and  other 
acts  done  thereunder  were  void.     The  earliest  authority  on  this 

1  21  Henry  VIII.  c.  5.  "^  Below  574. 

3  Y.BB.  34  Hy.  VI.  Mich.  pi.  26 ;  10  Ed.  IV.  Pasch.  pi.  i. 

4Y.B.  34  Hy.  VI.  Mich.  pi.  26.  »  Y.B.  35  Hy.  VI.  Mich.  pi.  39. 

8  Y.BB.  18  Hy.  VI.  Mich.  pi.  7 ;  36  Hy.  VI.  pi.  4  at  p.  8  fer  Prisot ;  cp.  for 
the  modern  law  Tharpe  v.  Stallward  (1843)  5  M.  and  Gr.  760;  Foster  v.  Bates 
(1843)  12  M.  and  W.  226,  232. 


570  SUCCESSION  TO  CHATTELS 

point  is  a  case  of  1467,  in  which  Littleton,  Newton,  and  Danby 
agreed  that  if  administration  had  been  granted,  and  then  the  will 
was  proved,  the  authority  of  the  administrator  was  determined.^ 
This  case  says  nothing  as  to  the  effect  of  such  determination  on  the 
acts  done  by  the  administrator  while  the  grant  was  in  force. 
But  in  156S  in  the  case  of  Graysbrook  v.  Fox"^  this  question  came 
before  the  court.  The  court  (Dyer,  C.J.,  and  Walsh,  J.,  Weston,  J., 
dissenting)  decided  that  a  grant  of  administration  in  such  circum- 
stances was  void  ab  initio,  and  consequently  that  all  acts  done 
under  it  were  likewise  void.  This  result  was  arrived  at  by  two 
parallel  lines  of  reasoning.  Firstly,  the  executor  takes  his  title 
from  the  will.  He  is  all  the  time  the  rightful  representative,  so 
that  the  administrator  has  no  right  to  interfere  with  his  property.^ 
Secondly,  the  ordinary  has  no  jurisdiction  to  grant  administration 
if  in  fact  there  is  an  executor.  Therefore  its  grant  made  under 
these  circumstances  is  absolutely  void.'*  Since  the  decision  had 
the  effect  of  limiting  the  jurisdiction  of  the  ecclesiastical  courts 
it  is  not  surprising  to  find  that  it  was  followed  in  1677  on  these 
two  grounds.^  Nor  was  the  law  altered  by  the  changed  attitude 
which  the  courts  of  law  later  assumed  towards  the  jurisdiction  of 
the  ecclesiastical  courts  to  make  grants  of  administration.^  This 
particular  result  of  the  rivalry  of  these  two  jurisdictions,  being 
based  on  logical  grounds,  had  hardened  into  the  fixed  rule  that, 
if  a  will  appointing  executors  was  in  existence,  a  grant  of  ad- 
ministration was  void  ab  initio — a  rule  which  was  followed  as 
lately  as  1905.^  But  it  was  obviously  productive  of  much  incon- 
venience and  hardship ;  and  it  was  barely  compatible  with  the 
modification,  apparently  assented  to  by  all  the  judges  in  Grays- 
brook V.  FoXy  that  acts  done  in  a  due  course  of  administration 
were   valid,^   and  with  the  admitted  legality  of  certain    limited 

^ "  Littleton. — Sir,  un  poit  faire  moy  son  executor,  nient  sachant  a  moy,  et 
puis  quant  jeo  aie  connusance  de  eel,  jeo  puis  bien  entreprendre  sur  moy  le  power 
del  administracion  et  disposicion,  etc.  Et,  Sir,  I'Ordinary  poet  bien  granter  un  ad- 
ministracion  en  le  mesme  temps,  come  il  fist  icy,  mes  maintenant  j :er  le  probate  del 
testament,  le  power  del  administrator  est  determine,  sinon  que  les  executor  averoit 
refuse  a  un  temps  devant  I'Ordinary,  donques  paradenture  le  ley  voil  auter,  et  a  eel 
entent  accord  Newton  et  Danby,"  Y.B.  7  Ed.  IV.  Trin.  pi.  3  (p.  13). 

2  Plowden  276. 

2"  Then  if  the  law,  immediately  after  the  death  of  the  testator,  vests  the  pro- 
perty and  the  possession  of  his  goods  in  the  executor,  from  thence  it  follows  that 
the  law  never  vests  the  property  in  the  Ordinary,  and  from  thence  it  follows  that 
the  law  never  vests  the  property  in  the  administrator,"  ibid  at  p.  281. 

^"  The  power  or  interest  which  the  Ordinary  himself  had,  and  the  power  and 
authority  which  the  common  law  or  the  statute  31  Ed.  III.  gave  him  to  commit 
administration  to  another,  is  but  where  a  man  dies  intestate,  so  that  if  he  makes  a 
Will,  such  power  and  interest  is  not  given,"  ibid  at  p.  280. 

^  Abram  v.  Cunningham  2  Lev.  182. 

«  Above  567.  7  Ellis  v.  Ellis  [1905]  i  Ch.  613. 

8  Plowden  at  p.  282 ;  see  the  remarks  of  Phillimore,  L.J.,  in  Hewson  v.  Shelley 
[1914]  2  Ch.  at  p.  41. 


ORIGINS  571 

grants  of  administration.^  It  was  therefore  overruled  in  1914;^ 
and  the  reasons  given  for  overruling  it,  particularly  those  given 
in  the  judgment  of  Phillimore,  L.J.,  contain  an  excellent  history  of 
the  origin  and  development  of  this  rule. 

(iii)   The  executor  de  son  tort. 

A  person  who  meddles  with  the  goods  of  a  deceased  person 
without  any  title  either  as  executor  or  as  administrator  is  known 
as  an  executor  de  son  tort.  It  is  clear  that  he  cannot  be  regarded 
as  an  administrator,  because  it  is  only  a  person  to  whom  the 
ordinary  has  delegated  authority  by  letters  of  administration  who 
has  this  title ;  ^  and,  as  we  have  seen,*  he  must  be  named  an 
executor  if  he  is  to  be  held  liable  to  be  sued.  It  is  equally  clear 
that  he  is  not  truly  an  executor,  because  he  has  not  been  appointed 
by  the  deceased.  But  it  would  be  inexpedient  to  treat  as  a  tres- 
passer a  person  who  had  intermeddled  with  the  goods  of  a  deceased 
person,  not  as  a  mere  wrongdoer,  but  with  the  intention  of  ad- 
ministering the  estate,  or  who  had  done  other  acts  which  it  would 
have  been  necessary  for  an  executor  to  do.^  On  the  other  hand, 
it  was  only  fair  to  those  who  had  claims  against  the  deceased  to 
hold  that  a  person  who  did  acts  characteristic  of  the  office  of  an 
executor  was  liable  as  if  he  were  really  executor ;  and  this  course 
was  the  more  possible  where  the  finding  of  a  jury  that  a  person 
had  administered  as  executor  was  accepted  by  the  court  as  proof 
that  he  was  an  executor.*'  But  it  was  not  necessary  to  allow 
such  a  person  to  sue  or  claim  any  of  the  other  rights  or  privileges 
of  an  executor.  Thus  we  get  the  rule  that  the  executor  de  son 
tort  has  none  of  the  privileges,  but  all  the  liabilities  which  belong 
to  the  position  of  a  rightful  executor.  This  conclusion  was  sub- 
stantially reached  as   early  as   Edward   I.'s  reign.'''     It   was    in 

^  Hewson  v.  Shelley  [1914]  2  Ch.  at  p.  44  per  Phillimore,  L.J.  ;  as  Cozens- 
Hardy,  M.R.,  pointed  out,  ibid  at  pp.  28-29,  the  form  of  bond  provided  by  the 
Statute  of  Distribution  1670  "  contemplates  the  possibiHty  of  there  being  a  will 
which  may  subsequently  be  proved.  It  imposes  an  obligation  on  the  administrator 
to  pay  debts  and  to  distriubte  the  surplus.  All  this  could  not  be  done  unless  the 
administrator  had,  by  virtue  of  the  grant,  the  personal  property  vested  in  him." 

2  Hewson  v.  Shelley  [1914]  2  Ch.  13. 

3  Y.BB.  18  Hy.  VI.  Hil.  pi.  i;  21  Hy.  VI.  Hil.  pi.  4  (p.  23)  per  Paston;  ibid 
Mich.  pi.  18  per  Yelverton  such  person  cannot  be  sued  as  administrator  de  son 
tort. 

4  Above  568. 

5  Y.BB.  32  Hy.  VI.  Mich.  pi.  \o  per  Moile;  21  Hy.  VI.  Hil.  pi.  11  per  Paston  ; 
21  Ed.  IV.  Pasch.  pi.  12,  Choke  said,  "  L'ou  home  de  son  tort  demesne  administre, 
la  il  n'administra  come  executor,  sinon  qu'il  fist  chose  come  executor,  come  pay 
les  dets  le  testator ;  "  for  a  case  turning  on  the  question  whether  a  man  was  a  mere 
trespasser  or  an  executor  de  son  tort  see  Fleier  v.  Southcot  (1554)  Dyer  105b. 

«  The  Eyre  of  Kent  (S.S.)  ii  55  ;  above  539. 

'  Y.B.  20,  21  Ed.  I.  (R.S.)  374,  Spigurnel  said,  "  The  two  cases  are  not  alike  ; 
for  when  a  man  ministers  voluntarily  the  goods  of  the  dead  man,  he  thereby  binds 
himself  to  answer  to  those  who  demand  a  debt  against  him  as  executor  of  the  dead 
man.     Now,  Sir,  it  does  not  follow  that,  although  he  can  bind  himself  to  others  by 


572  SUCCESSION  TO  CHATTELS 

harmony  with  the  principle  of  the  common  law  that  a  person  appar- 
ently seised  of  an  office  should  be  treated,  for  some  purposes  at 
least,  as  its  rightful  holder ;  ^  and  it  was  recognized  also  on  other 
grounds  by  the  ecclesiastical  law.  A  person  who  does  certain 
necessary  acts  before  the  requisite  formalities  have  been  observed 
is  protected  if  those  acts  must  necessarily  have  been  done  by  a 
properly  constituted  representative ;  but  having  assumed  the  office 
he  must  be  held  to  be  answerable  to  the  creditors.  If  a  man,  says 
Lyndwood,  meddles  with  the  administration  of  the  goods  of  a 
deceased  person  without  making  an  inventory  he  will  be  answer- 
able to  the  creditors,  except  in  so  far  as  he  has  incurred  debts  in 
or  about  the  expenses  of  the  funeral,  the  probate  of  the  will,  the 
making  of  an  inventory,  or  the  necessary  preservation  of  the 
goods.  ^  This  exception  was  later  adopted  by  the  common  law. 
The  lawful  acts  of  an  executor  de  son  tort  were  held  to  be  good,^ 
so  that  acts  done  by  him  in  a  due  course  of  administration  are 
valid."*  We  do  not  find  any  clear  distinction  drawn  in  this  period 
between  the  position  of  a  man  who,  having  done  merely  acts  of 
kindness  or  charity,  is  not  treated  as  an  executor  de  son  tort,  and 
the  position  of  a  man  who  is  treated  as  an  executor  de  son  tort 
because  he  has  done  acts  which  only  an  executor  would  be  en- 
titled to  do.  But  we  perhaps  have  a  hint  of  this  distinction  in 
the  passage  of  Lyndwood  cited  above,  and  in  a  dictum  of  Choke's 
in  Edward  IV.'s  reign  to  the  effect  that  some  said  that  money  spent 
in  burying  a  deceased  person  would  not  make  a  man  an  executor 
de  son  tort,  because  it  was  a  work  of  charity.^ 

The  Mode  in  which  and  the  Extent  to  which  Executors  and  Ad- 
ministrators have  become  the  Representatives  of  the  Deceased  ^ 

We  have  seen  that  in  the  Anglo-Saxon  period  there  is  no  such 
thing  as  a  general  representative  of  a  deceased  person  ;  '^  and  we 
can  say  the  same  thing  of  the  first  two  and  a  half  centuries  after 

his  own  pleasure,  so  that  he  is  bound  to  answer  for  the  administration  which  he 
has  made,  others  shall  be  obliged  to  answer  to  him  ;  "  this  was  denied  by  Bereford^ 
T. ;  but  the  law  was  settled  in  this  way,  see  Y.BB.  33-35  Ed.  I,  (R.S.)  86  per  Heng- 
ham;  12,  13  Ed.  III.  (R.S.)  84,  148,  150;  Longo  Quinto  7.'.  It  appears  from  Y.B. 
9  Ed.  IV.  Mich.  pi.  37  that  an  executor  who  administered  without  proving  the  will 
would  be  treated  as  an  executor  de  son  tort. 

1  Above  91,  99-100.  '^  Lyndwood  176  sub  voc.  Prius. 

3  Coulter's  Case  (1598)  5  Co.  Rep.  at  f.  30b  ;  and  cp.  Graysbrook  v.  Fox  (1565) 
Plowden  at  p.  282. 

^Oxenham  v.  Clapp  (183 1)  3  B.  and  Ad.  at  p.  314. 

«Y.B.  21  Ed.  IV.  Pasch.  pi.  12;  cp.  Y.BB.  21  Hy.  VI.  Hil.  pi.  n,/^r  Newton  ' 
and  Ascue;  33  Hy.  VI.  Mich.  pi.  5;  Stokes  v.  Porter  (1558)  Dyer  i66b;  for  the  , 
modern  law  see  Peters  v.  Leeder  (1878)  47  L.J.Q.B.  N.S.  573.  \ 

"  A  very  good  sketch  of  the  history  of  the  law  on  this  subject  will  be  found  in  : 
chap,  iii  of  Mr.  Goffin's  book  on  the  Testamentary  Executor. 

"^  Vol.  ii  96-97. 


REPRESENTATION  OP  DECEASED    573 

the  Conquest.  When  Glanvil  wrote  a  fixed  share  of  the  property 
of  the  deceased  descended  to  the  heir.  He  was  the  person  to  be 
sued  for  the  debts,  and  apparently  was  obliged  to  pay  them  irre- 
spective of  the  amount  of  the  assets.^  Presumably,  too,  he  could 
sue  for  debts  owing  to  the  deceased.  ^  The  executor  is  concerned 
merely  with  the  carrying  out  of  the  will  of  that  part  of  his  property 
which  a  testator  was  allowed  to  bequeath  ;  and  he  could  sue  any- 
one, even  the  heir,  if  he  was  impeded  in  his  duties.^  If  a  man 
died  intestate  his  kinsfolk  performed  the  functions  of  an  executor 
with  respect  to  that  part  of  the  property  which  might  have  been 
disposed  of  by  will.*  When  Bracton  wrote  the  powers  of  the 
executor  were  wider.  He  could  sue  in  the  ecclesiastical  courts  on 
debts  due  to  the  testator,  if  acknowledged  in  his  lifetime,  because 
such  debts  were  substantially  the  testator's  goods ;  while  he  could 
be  sued  in  the  ecclesiastical  courts  if  he  had  been  directed  in  the 
will  to  pay  debts  due  by  the  testator,  because  such  direction 
amounted  to  something  very  like  a  legacy.^  On  the  other  hand, 
the  heir  alone  could  sue  in  the  king's  courts  for  debts  not  acknow- 
ledged in  the  testator's  lifetime,  and  he  was  primarily  answerable 
for  the  debts  in  the  same  courts.^  He  was  not  legally  liable  be- 
yond the  amount  of  the  assets,  in  which  probably  we  must  reckon 
the  land  which  he  had  inherited ; ''  though  he  was  perhaps  con- 
sidered to  be  morally  liable.^  Questions  connected  with  legacies 
were  now  the  concern  of  the  executor  and  the  ecclesiastical  courts  ;  ^ 
but  the  heir  could  demand  that  the  debts  be  satisfied  before  the 
legacies  were  paid.^^  When  a  man  died  intestate  his  property 
vested  in  the  ordinary,  and  it  is  quite  in  accordance  with  this 
scheme  of  representation  that  the  ordinary  should  not  be  liable 
for  the  debts,  seeing  that  even  the  executor  was  not  so  liable  in 
the  absence  of  a  direction  in  the  will  to  pay  them.^^ 

In  Edward  I.'s  reign  a  change  took  place  which  was  the  first 
stage  in  the  process  by  which  the  executor  became  the  representa- 
tive of  the  deceased.  The  executor  was  allowed  to  sue  and  to  be 
sued  in  the  king's  courts.  ^^     This  meant  that  the  doings  of  the 

1  vii  5  and  8.  2  Qoffin  39. 

^vii  7.  ^vii  6. 

^  Bracton  f.  407b ;  Goffin,  op.  cit.  40-44. 

^  Bracton  f.  407b. 

'  Ibid  f.  60,  *'  Tenentur  autem  heredes  parentum  suorum  et  aliorum  ante- 
cessorum  quorum  heredes  extiterint  testamertta  servare,  et  eorum  debita,  ad  quae 
catalla  sua  non  sufficiunt  acquietare." 

8  Ibid  f.  61,  "  Haeres  autem  defuncti  tenebitur  ad  debita  predecessoris  sui  ac- 
quietanda  eatenus  quatenus  ad  ipsum  pervenerit  scilicet  de  haereditate  defuncti,  et 
non  ultra,  nisi  velit  de  gratia,  et  si  nihil  multo  fortius.  Sed  si  ad  ipsum  aliquid 
aliunde  pervenerit,  inhumanum  esset,  si  debita  parentum  insoluta  remanerent." 

^  Ibid  407b ;  Bracton's  Note  Book  case  381 ;  cp.  Liber  Mem.  de  Bernewelle 
176  for  a  tale  about  a  disputed  legacy. 

10  Bracton  f.  6ib. 

"  Above  568.  "  P.  and  M.  ii  345. 


574  SUCCESSION  TO  CHATTELS 

executor  were  as  much  under  the  eye  of  the  royal  judges  as  the 
doings  of  the  heir.  There  was  therefore  nothing  to  prevent  the 
representation  of  the  deceased  from  being  settled  in  an  intelligible 
form.  The  respective  rights  and  liabilities  of  the  heir  and  the 
executor  could  be  apportioned  in  a  manner  suitable  to  the  estate 
which  each  took.  The  new  division  of  functions  worked  out  by 
the  common  law  was  as  follows :  The  heir  ceases  to  be  anything 
more  than  the  person  who  inherits  the  real  estate  of  the  testator. 
He  can  only  be  sued  for  the  debts  due  to  the  deceased  if  the 
testator  has  bound  him  by  instrument  under  seal  in  which  heirs 
are  named. ^  He  cannot  sue,  at  first  if  there  were  executors,  and 
later  whether  there  were  executors  or  not.  The  executor  takes 
the  whole  of  the  chattels  of  the  testator,  and  becomes  liable  to 
certain  of  his  debts  so  far  as  these  assets  extend,  whether  or  no 
the  heir  is  liable.  He  must  also  pay  the  legacies  if  there  are 
sufficient  assets.  Thus  the  executor  comes  to  represent  the 
testator  in  a  far  truer  sense  than  the  heir,  and  the  law  gets  in 
this  way  something  approaching  to  a  representation  of  a  deceased 
person.  It  was  inevitable  that  the  position  of  the  ordinary  in  re- 
lation to  the  goods  of  a  deceased  intestate  should  be  affected  by 
this  new  division  of  labour.  As  we  have  seen,  he  was  made  liable 
for  the  debts  in  1285,  while  in  1357  he  was  obliged  to  delegate 
his  powers  to  an  administrator,  whose  position  is  copied  from  that 
which  the  executor  had  then  assumed.^ 

In  tracing  the  history  of  the  process  by  which  this  change  was 
brought  about  I  shall  deal  (i)  with  the  restrictions  upon  the  lia- 
bility and  rights  of  the  heir ;  (ii)  with  the  extent  of  the  liability 
of  the  executor ;  and  (iii)  with  the  right  of  the  executor  to  the 
estate  of  the  deceased. 

(i)  Restrictions  upon  the  liability  and  rights  of  the  heir. 

In  the  Year  Books  of  Edward  I.'s  reign  it  is  clear  that  both 
the  executor  ^  and  the  heir  *  are  liable  to  be  sued  by  the  creditors 
of  the  deceased.  In  Edward  I  I.'s  reign  the  heir  is  liable  on  a 
specialty  in  which  heirs  have  been  named,  ^  and  (possibly)  the 
executors  are  not  liable  in  that  case.*  But  the  executors  are 
liable  on  a  specialty  in  which  the  heirs  have  not  been  named,  ^  and 
they,  and  not  the  heir,  are  liable  on  a  covenant  in  a  lease  for  years.  ^ 

1 "  Et  notandum  quod  heres  non  tenetur  in  Anglia  ad  debita  antecessoris  reddenda, 
nisi  per  antecessorem  ad  hoc  fuerit  obligatus,  praeterquam  debita  Regis  tantum,  et 
super  hoc  fit  Statutum  tale  in  Magna  Carta  (§  9,  1215),"  Fleta  II.  62.  70;  Britton 
i  163. 

2  Above  568-569. 

3  Y.BB.  21,  22  Ed.  I.  (R.S.)  456,  614  ;  30,  31  Ed.  I.  (R.S.)  238. 

4  Y.B.  21,  22  Ed.  I.  (R.S.)  514-518. 

5  Y.B.  3,  4  Ed.  II.  (S.S.)  198-199.  «  Eyre  of  Kent  (S.S.)  ii  43-44. 

7  Ibid.  8  Y.B.  6  Ed.  II.  (S.S.)  (1310-1311),  149. 


REPRESENTATION  OF  DECEASED     575 

The  law  is  evidently  approaching  its  final  position,  but  it  has  not  yet 
quite  reached  it.  In  Edward  III.'s  reign  it  is  laid  down  that  the 
heir  can  only  be  sued  on  an  obligation  of  an  ancestor  in  which 
heirs  have  been  named  ;  and  that  though  the  heir  can  be  sued  on 
such  an  instrument,  the  executors  are  equally  liable  to  be  sued.^ 
Conversely,  in  Edward  I.  *s  reign  both  the  executors  ^  and  the  heir  ^ 
sue  for  debts  due  to  their  ancestor;  but  early  in  Edward  III.'s 
reign  it  was  laid  down  that,  even  if  an  obligation  were  made  in 
favour  of  a  man  and  his  heirs,  the  action  upon  it  "was  given 
naturally  to  executors  and  not  to  the  heir,  unless  it  be  for  default 
of  executors ; "  ^  so  that  the  executor  could,  if  he  liked,  release 
such  an  obligation.  The  reporter  adds  a  note  to  the  effect  that 
*'  the  opinion  of  the  court  in  this  case  was  that  while  there  is  an 
executor  living,  who  represents  the  estate  of  the  testator,  the  heir 
shall  not  have  an  action."  ^  In  the  time  of  Coke,  the  heir,  it  was 
said,  could  never  sue ;  and  there  is  no  proviso  as  to  the  existence 
of  executors.®  In  fact,  the  creation  of  the  ofifice  of  administrator 
in  1357,  who  must  be  appointed  in  all  cases  in  which  no  executor 
was  created,  had  taken  away  the  meaning  of  this  proviso.'^ 

It  is  not  difificult  to  see  why  the  law  thus  came  to  allow  the 
executor  to  oust  the  heir.  The  produce  of  the  debt  was  clearly 
a  chattel.  It  was  taken  by  the  executor  in  his  representative 
capacity,  and  applied  by  him  in  a  due  course  of  administration. 
The  heir  had  nothing  to  do  with  the  administration  of  the  estate. 
Any  debt  he  recovered  he  took  for  himself;  and  he  was  only 
answerable  if  the  ancestor  had  left  any  obligations  under  which  he 
was  especially  bound. ^  It  was  thus  essential  to  the  proper  ad- 
ministration of  the  estate  to  take  away  from  the  heir  the  right  to 
sue  and  to  give  it  to  the  personal  representative.  But  one  incon- 
venient consequence  followed  from  the  position  which  the  heir 
assumed.  Seeing  that  he  took  the  real  estate,  and  seeing  that  he 
was  no  longer  liable  for  debts,  except  specialty  debts  in  which 
heirs  had  been  named,  the  real  estate  escaped  from  all  liability  to 

ly.BB.  21  Ed.  III.  Pasch.  pi.  28  (p.  9);  27  Ed.  III.  Trin.  pi.  23  and  29  ;  see 
Anon  (1537)  Dyer  14a. 

2Y.B.  20,  21  Ed.  I.  (R.S.)  374. 

3  Y.B.  21,  22  Ed.  I.  (R.S.)  514-518 ;  c.p.  Y.B.  12,  13  Ed.  III.  (R.S.)  168. 

4Y.B.  14  Ed.  III.  (R.S.)  96;  cp.  Y.BB.  45  Ed.  III.  Trin.  pi.  4 ;  46  Ed.  III. 
Pasch.  pi.  7 ;  Y.B.  18,  19  Ed.  III.  406,  action  of  account  was  denied  to  the  heir. 

« Y.B.  14  Ed.  III.  (R.S.)  100. 

^  Co.  Litt.  8a,  "  but  of  ancient  time  the  heir  was  permitted  to  have  an  action 
of  debt  upon  a  bond  made  to  his  ancestors  and  his  heirs,  but  the  law  is  not  so  holden 
at  this  day." 

7  Above  568-569. 

8  •'  Executors  do  not  demand  as  in  respect  of  what  is  due  to  them,  but  of  what 
was  due  to  the  testator  ;  but  the  heir  demands  as  in  respect  of  what  is  due  to  him- 
self and  for  his  own  profit,"  per  Shardelowe,  J.,  Y.B.  12,  13  Ed.  III.  (R.S.)  168, 
170. 


576  SUCCESSION  TO  CHATTELS 

the  other  debts  of  a  deceased  person.^  Testators  sometimes 
charged  their  land  with  the  payment  of  their  debts  at  the  end  of 
this  period.^  But  it  was  not  till  the  last  century  that  real  estate 
was  made  generally  available  to  pay  the  debts  of  a  deceased 
person.^ 

(ii)   The  extent  of  the  liability  of  the  executor. 

Both  the  extent  of  the  liability  of  the  executor  and  the  extent 
of  his  right  to  sue  have  been  affected  by  the  maxim  actio  personalis 
moritur  cum  persona.  Therefore,  before  I  say  anything  in  detail  as 
to  the  extent  of  the  executor's  liability,  I  shall,  by  way  of  preface, 
say  something  of  the  history  and  scope  of  this  maxim. ^ 

''Though,"  says  the  late  Professor  Goudy,  "this  is  one  of  the 
most  familiar  maxims  of  English  law,  the  veil  of  obscurity  covers 
not  only  its  origin  but  its  true  import  and  significance."  ^  It  is 
not  derived  from  the  classical  Roman  law,  nor  is  it  to  be  found  in 
the  writings  of  the  mediaeval  civilians  or  canonists ;  ^  and  it  is  not 
to  be  found  in  its  modern  shape  in  the  Year  Books. '^  Something 
very  like  it  appears  in  the  argument  of  Russel  and  Prat's  Case  in 
1 590 ;  ^  but  it  would  seem  that  its  first  appearance  in  its  modern 
shape  is  in  Coke's  report  of  Pinchon's  Case  in  1609.^  It  is  quite 
possible  that  it  was  given  its  modern  shape  by  Coke  himself  who, 
as  Thayer  has  pointed  out,^^  was  a  great  inventor  of  Latin  maxims. 
But,  if  this  be  true,  the  maxim  when  it  first  appeared  in  its  modern 
shape  was  both  untrue  and  misleading.  Pinchons  Case^  as  we 
have  seen,^^  finally  settled  that  the  maxim  did  not  as  a  rule  apply 
to  the  action  of  assumpsit  brought  to  enforce  a  simple  contract ; 
and  this  meant  that  it  did  not,  save  in  exceptional  cases,  apply  to 
causes  of  action  in  contract.  Generally  it  was  applicable  only  to 
causes  of  action  in  tort ;  and  this  has  given  rise  to  the  conjecture 
that  for  "personalis"  we  should  read  "poenalis."  ^^  There  is  no 
warrant  for  this  conjecture  if  it  be  true  that  the  maxim  in  its 
modern  shape  first  made  its  appearance  in  Pinchon's  Case  ;  but  it 
is  probable  that  it  was  the  maxim  thus  amended,  or  something 
like  it,  which  the  judges  in  Pinchons  Case  had  in  their  minds. 

^  Possibly  it  did  not  so  escape  in  Bracton's  day,  above  573. 

2  See  e.g.  Test.  Ebor.  i.  248  (1398) ;  iii  40  (1405). 

3  I  William  IV.  c.  47  §  9 ;  3,  4  William  IV.  c.  104. 

*  On  the  whole  subject  see  Goudy,  Essays  in  Legal  History  (1913)  216-227. 

'Op.  cit.  216,  218,  219. 

6  Ibid  216,  222.  '  Ibid  225-226. 

8  "  This  action  is  personal  and  moritur  cum  persona ;  for  it  is  grounded  upon 
a  personal  wrong,"  4  Leo.  44. 

»"  Another  reason  was  added,  that  this  action  on  the  case  on  assumpsit  is 
actio  personalis  quae  moritur  cum  persona"  9  Co.  Rep.  at  f.  87a. 

"  Evidence  185  n.  4 ;  it  is  there  pointed  out  that  Coke  was  quite  possibly  the 
inventor  of  the  maxim  •*  ad  quaestionem  facti  non  respondent  judices,  ad  quaestionem 
juris  non  respondent  juratores ;  "  see  vol.  i  298  n.  8. 

"  Above  452.  ^  Pollock,  Torts  (5th  ed.)  58  n.  (6). 


REPRESENTATION  OF  DECEASED     577 

Bracton,  in  a  confused  passage  on  the  subject  of  the  extinction 
of  obligations,^  tells  us  that  an  obligation  is  **  got  rid  of  by  the 
death  of  either  of  the  contracting  parties  or  of  both,  especially  if 
it  is  a  penal  obligation  or  a  simple  one ;  but  if  it  be  a  double  one, 
namely  penal  and  for  recovery,  it  is  got  rid  of  as  far  as  it  is  penal 
and  it  does  not  extend  to  the  heirs,  nor  is  it  allowed  to  the  heirs, 
because  a  penalty  binds  the  original  parties,  and  is  extinguished 
with  the  person ; "  and,  in  another  passage,  he  tells  us  that, 
*'  Personal  actions  lie  against  him  who  has  contracted  and  his  heir, 
unless  they  be  penal."  ^  It  is  probable  that  in  these  passages 
Bracton  is  giving  his  own  view  of  the  law  ;  ^  and  his  idea  seems  to 
be  that  any  obligation  which  is  penal  dies  with  the  person ;  but 
that  an  obligation  to  restore  something  does  not.  But  this  leaves 
very  much  at  large  the  question  what  obligations  are  penal  and 
what  are  not.  This  matter,  as  we  shall  see  directly,  was  settled, 
not  by  attempts  to  define  accurately  what  obligations  were  poenae 
and  what  were  rei  persecutoriae,  but  by  the  elaboration  of  the 
technical  rules  applicable  to  the  different  forms  of  personal  action.'^ 
In  this  question  of  the  survival  of  rights  of  action,  as  in  the  forma- 
tion of  a  theory  of  contract,^  the  common  law  gradually  grew  up 
round  the  actions.  But  it  would  seem  that  Bracton's  general  state- 
ment, which  was  copied  by  Fleta,^  had  just  sufficient  influence 
to  make  English  lawyers  think  and  say  that  an  action  of  an 
obviously  penal  kind,  such  as  an  action  of  trespass,  moritur  cunt 
persona.  Thus  in  1 410  Hankford  agreed  with  Thirning  that 
executors  could  not  be  made  liable  for  the  trespasses  of  their 
testator  '*  because  the  action  dies  with  the  person ; "  ^  and  this  was 
repeated  by  Newton  in  1440,^  and  by  Fineux  in  1521.^ 

The  last  cited  case  was  the  earliest  case  in  which  it  was  held 
that  a  cause  of  action  in  assumpsit  did  not  die  with  the  person  ; 

1 "  Item  tollitur  (obligatio)  morte  alterius  contrahentium,  vel  utriusque,  maxime 
si  sit  pcenalis,  vel  simplex.  Si  autem  duplex,  scilicet  pcenalis  et  rei  persecutoria, 
in  hoc  quod  pcenalis  est  tollitur,  et  non  extenditur  contra  heredes,  nee  datur  heredi- 
bus,  quia  poena  tenet  suos  auctores  et  extinguitur  cum  persona,"  f.  loia,  cited 
Goudy,  op.  cit.  222. 

2**  Personales  vero  actiones  .  .  .  locum  habent  adversus  eum  qui  contraxit,  et 
heredem  suum,  nisi  sint  poenales,"  f.  102a,  cited  Goudy,  op.  cit.  224. 

3  Goudy,  op.  cit.  223.  ^  Below  578,  581. 

"*  Above  413-414.  ^11.  60.  9. 

"^^  Thirning. — En  vostre  case  les  executors  ne  serront  my  charges,  n'en  nul 
auter  case,  mes  loulour  testator  fuit  oblige  enxertein  duity,  car  s'il  moy  fist  trespass, 
jeo  n'avera  action  vers  ses  executors.  Hankford. — De  trespass  il  est  voier,  pur  ceo 
que  Taction  mourst  ove  le  person,"  Y.B.  11  Hy.  IV.  Hil.  pi.  20  (p.  46). 

^  "  La  Ley  est,  si  on  face  a  moy  trespass,  et  meurt,  Taction  est  mort  auxy,  pur 
ce  que  serra  inconvenient  a  recoverer  envers  aucun  qui  ne  fuit  partie  al  tort,"  Y.B. 
ig  Hy.  VI.  Pasch.  pi.  10,  cited  Goudy,  op.  cit.  225. 

^  ^'  Et  Fineux  Chief  jfustice  dit  que  ce  est  hors  del  cas  ou  actio  moritur  cum 
persona ;  car  ce  est  ou  le  hurt  ou  damage  est  corporel ;  come  si  on  me  bate  et  devie, 
ma  accion  est  alle ;  ou  si  jeo  devie,  mes  executors  n'auront  accion,  car  le  party  ne  poit 
esse  punie  quand  il  est  mort,"  Y.B.  12  Hy.  VIII.  Mich.  pi.  3. 

VOL.   III.— 37 


578  SUCCESSION  TO  CHATTELS 

and  we  have  seen  that  the  law  was  not  so  settled  till  some  time 
later.  ^  In  distinguishing  the  case  before  the  court  from  cases  where 
actions  died  with  the  person  the  Chief  Justice  lays  it  down  that 
actions  die  with  the  person  only  when  they  are  brought  for  corporal 
damage.^  Clearly  this  restricts  the  rule  far  more  narrowly  than 
the  earlier  cases.  But  though  his  view  as  to  the  non-applicability 
of  the  rule  to  assumpsit  brought  upon  a  contract  prevailed,  his  view 
that  only  those  actions  died  with  the  person  which  were  brought 
for  corporal  injuries  did  not  prevail ;  nor  was  a  later  attempt  of 
Dodderidge,  J.,  to  limit  its  scope  by  the  invention  of  a  class  of 
quasi-contractual  rights,  to  which  it  did  not  apply,  any  more  success- 
ful.^ Trespass  or  one  of  its  off-shoots  was  coming  to  be  the  form 
of  action  used  for  all  torts  to  person  or  property.  But  trespass 
and  its  off-shoots  were  so  obviously  of  a  penal  character  that  it  was 
with  difficulty  that  an  exception  was  made  in  favour  of  assumpsit. 
It  is  not  therefore  surprising  that  no  further  concession  was  made. 
The  result  was  that  the  rule  as  to  non-survivorship  was  applied  to 
all  causes  of  action  in  tort  whether  to  person  or  property ;  and  it  is 
only  as  the  result  of  the  legislation  of  the  nineteenth  century  that 
it  has  been  limited  in  the  manner  suggested  by  Fineux. 

Thus,  long  before  the  maxim  took  its  modern  shape,  the  idea 
that  actions  died  with  the  person  had  come  to  be  confined  mainly 
to  actions  in  tort ;  and  this,  historically,  is  the  reason  why  the  term 
personalis  has,  in  this  connection,  always  received  this  limited  mean- 
ing.^ But,  if  we  turn  from  the  consideration  of  the  meaning  of  the 
maxim  when  it  first  appeared  in  its  modern  shape  to  the  actual 
rules  of  the  common  law  in  the  thirteenth  century,  we  shall  see  that 
the  maxim,  if  it  had  then  been  known,  would  have  been  nearly  true 
in  its  literal  sense.  ^  Subject  to  a  modification,  with  which  I  shall 
deal  directly,^  the  only  personal  action  which  could  be  brought 
against  the  executor  in  his  representative  capacity  was  the  action 
of  debt  or  covenant  upon  a  contract  under  seal  made  by  the  testator. 
It  is  true  that  in  Edward  I.'s  reign  it  seems  to  have  been  thought 
that  debt  would  lie  against  executors  even  though  there  was  no 
sealed  writing. '^  But  in  Edward  1 1  I.'s  reign  it  was  held  that  debt 
would  never  lie  against  executors  if  the  testator  might  have  waged 
his  law.^     Account  did  not  lie  against  executors  till  1705,®  nor  did 

^  Above  451-452.  2  Above  577  n.  9. 

^See  Le  Mason  v.  Dixon  (1628)  W.  Jones  173. 

*See  Russel  and  Prat's  Case  (1590)  4  Leo.  44,  cited  above  576  n.  8. 

^Cp.  Finlay  v.  Chirney  (1880)  20  Q.B.D.  at  pp.  502-503  per  Bowen,  L.J. 

^  Below  579. 

7Y.BB.  21,  22  Ed.  L  (R.S.)  456;  30,  31  Ed.  L  (R.S.)  238. 

8Y.B.  17,  18  Ed.  in.  (R.S.)  512  ^^r  Shardelowe;  cp.  Y.BB.  41  Ed.  IIL  Trin. 
pi.  3  ;  2  Hy.  IV.  Hil.  pi.  12. 

^  4,  5  Anne  c.  16  §  28 ;  "Account  fuit  chose  en  privity  perenter  les  parties  mesme, 
le  que  estranger  ne  poet  aver  perfect  conusance,"  Le  Mason  v.  Dixon  (1628)  W. 
Jones  at  p.  ly^  per  Jones,  J. 


REPRESENTATION  OF  DECEASED     579 

trespass  till  1834  5^  so  that  it  was  only  if  the  testator  had  bound 
himself  by  specialty  that  the  executor  was  liable.  It  was  not  till 
the  fear  of  the  chancellor's  growing  jurisdiction  induced  the  common 
lawyers  to  permit  the  action  of  assumpsit  to  be  brought  against 
executors  that  any  great  inroad  was  made  upon  the  main  principle  ;  ^ 
and  at  the  present  day  there  are  certain  causes  of  actions  both  in 
tort  ^  and  in  contract  *  to  which  the  maxim  is  still  applicable. 

1  have  said  that  the  generality  of  the  maxim  was  subject  to 
one  modification.  It  was  held  in  1583  in  Sherrington  s  Case  that 
the  representatives  of  a  deceased  person  were  liable  for  a  wrong 
done  by  the  deceased  in  so  far  as  that  wrong  had  actually  enriched 
his  estate.^  It  is  probable  that  this  principle,  though  then  clearly 
stated  for  the  first  time,  had  been  recognized  at  a  much  earlier 
period. 

We  have  seen  that  Bracton  laid  it  down  that  an  obligation  to 
restore  property  did  not  die  with  the  person/  In  conformity  with 
this  view  of  the  law  it  was  assumed  in  1 3 1 2  that  executors  were 
liable  to  restore  a  writing  bailed  to  their  testator ; ''  and  in  1 343  it 
was  held  that  executors  were  obliged  to  answer  to  an  action  of 
detinue  brought  against  them  in  respect  of  a  horse  bailed  to  their 
testator.^  In  the  last  cited  case  it  was  argued  that  they  were  not 
bound  to  answer  without  a  specialty.  Sharshulle  and  Willoughby, 
JJ.,  held  that  they  were  bound  to  answer  for  the  detinue  of  their 
testator  without  a  specialty — whether  or  not  they  were  obliged  to 
answer  for  their  own  act  in  detaining  it.^  In  Henry  IV. 's  reign  a 
similar  case  was  discussed  several  times  at  great  length. ^^  Hankford 
said  that  it  had  often  been  matter  of  dispute  whether  detinue  lay 
against  executors  on  a  bailment  made  to  their  testator  without 
specialty,  and  that  it  had  been  decided  that  the  action  lay.^^  It 
was  decided  in  that  case  that  the  action  lay  against  the  executors 

1 3,  4  William  IV.  c.  42  §  2. 

2  Above  451-452;  Goffin,  op.  cit.  at  p.  57,  points  out  that,  before  assumpsit  was 
used,  the  rule  that  debt  would  not  lie  against  executors  was  sometimes  evaded  by 
using  the  writ  Quominus. 

3  See  Hatchard  v.  Meg^  (1887)  18  Q.B.D.  771. 

**•  All  contracts  for  personal  services  which  can  be  performed  only  during  the 
lifetime  of  the  party  contracting  are  subject  to  the  implied  condition  that  he  shall  be 
alive  to  perform  them ;  and  should  he  die  his  executor  is  not  liable  to  an  action  for 
the  breach  of  contract  occasioned  by  his  death,"  Hall  v.  Wright  (1858)  E.B.  and  E. 
746,  793  ;  cp.  Finlay  v.  Chirney  (1888)  20  Q.B.D.  494. 

5  Savile  40.  ^  Above  577. 

7Y.B.  5  Ed.  II.  (S.S.)  (1312)  155-156. 

8Y.B.  17,  18  Ed.  III.  (R.S.)  510-516. 

^  At  p.  514,  "  Willoughby. — We  shall  record  that  you  have  not  any  specialty. 
Sharshulle  to  Thorpe. — He  (the  opposing  counsel)  puts  you  to  answer  as  to  your 
own  act;  but  we  adjudge  that  you  do  answer  without  a  specialty.  Willoughby  to 
Thorpe. — Answer. ' ' 

i«  Y.BB.  II  Hy.  IV.  Hil.  pi.  20;  13  Hy.  IV.  Hil.  pi.  2  ;  14  Hy.  IV.  Hil.  pi.  30 
and  37. 

^1  Y.B.  II  Hy.  IV.  Hil.  pi.  30  p.  46, 


580  SUCCESSION  TO  CHATTELS 

in  their  representative  capacity.^  In  Henry  VI.'s  reign  it  seems  to 
have  been  thought  that  if  executors  dealt  with  another's  goods  as 
their  own  the  plaintiff  might  either  sue  them  in  their  representative 
capacity  by  writ  of  detinue,  or  personally  by  writ  of  trespass,  "  for 
the  executor  is  obliged  by  law  to  know  the  goods  of  his  testator 
through  the  inventory."^ 

It  would  appear  from  these  cases  that  it  was  recognized  from 
the  days  of  Bracton  onwards  that  executors  were  not  entitled  to 
retain  goods  which  in  fact  did  not  belong  to  their  testator  ;  and  this 
was  substantially  the  ground  of  the  decision  in  Sherrington  s  Case. 
In  that  case  Manwood,  C.B.,  said  :  ^  "In  each  case  where  any  price 
or  value  is  placed  on  the  thing  in  respect  of  which  the  offence  has 
been  committed,  though  he  who  committed  the  offence  has  died, 
the  executors  shall  be  charged  for  that  offence.  In  this  case  the 
information  is  for  the  cutting  of  oaks  of  the  value  of  ;^  i  oo  and  for 
taking  twenty  oxen  of  the  queen  worth  i^20,  and  the  executor  will 
be  charged.  But  when  the  action  or  information  is  for  treading 
down  grass,  etc.,  the  executor  will  not  be  charged."  Though, 
according  to  the  report,  no  earlier  cases  were  cited,  the  decision 
was  in  harmony  with  the  line  of  decisions  which  allowed  detinue 
to  be  brought  against  executors  in  their  representative  capacity ; 
and  it  was  followed  in  1628  in  the  case  of  Le  Mason  v.  Dixon} 
"If,"  it  was  said,  "  J.S.  wrongfully  takes  goods  and  dies,  and  the 
goods  are  still  in  existence,  trespass  does  not  lie  against  the  executor 
of  J.S.,  but  if  the  executors  have  the  goods  in  their  possession,  then 
detinue  lies  against  them  on  their  own  possession."  As  detinue 
also  lay  if  the  defendant  had  by  his  misconduct  disabled  himself 
from  delivering  the  goods,^  it  would  seem  that  on  principle  it  would 
also  lie  against  the  executors  in  their  representative  capacity,  if  the 
testator  had  consumed  or  destroyed  the  goods. 

In  the  course  of  the  seventeenth  and  eighteenth  centuries 
detinue  was  practically  superseded  either  by  assumpsit  or  by 
trover.  The  rights  of  the  parties  formerly  protected  by  detinue 
could  be  regarded  as  depending  either  upon  an  implied  contract, 
to  enforce  which  the  courts  had,  as  we  have  seen,^  extended 
assumpsit    in  the  seventeenth  century;  or  as  depending  upon  a 

1  Y.B.  14  Hy.  IV.  Hil.  pi.  37  pp.  29,  30. 

^Y.B.  34  Hy.  VI.  Mich.  pi.  42  p.  24,  "  Prisot. — Si  jeo  baile  biens  a  un  auter  a 
saufment  garder,  lequel  apres  face  ses  executors  et  devy,  jeo  recovera  damages  envers 
les  executors  pur  memes  les  biens.  Yelverton  luy  interrupta. — Vous  purrait  avoir 
bref  de  Detinue.  Danhy. — Ou  bref  de  Trespass  s'il  veut.  .  .  .  Yelverton. — Chescun 
trespass  est  suppose  le  fait  del  defendant  meme,  car  si  I'executor  prend  mes  biens 
c'est  de  son  tort  demesne ;  car  il  est  oblige  per  Ley  de  conustre  les  biens  son  testator 
par  un  Inventory,  etc.,  et  en  tiel  bref  de  trespass  envers  les  executors,  ils  ne  sont  my 
nomes  executors,  etc.  Prisot. — Si  soit  bref  de  Detinue  il  covient  de  nomer  eux 
executors,  etc.     Danby. — Le  pleintif  eslira  a  sa  volont^." 

3  (1583)  Savile,  40.  ■*  W.  Jones  173. 

^  Above  350.  "  Above  448-450. 


REPRESENTATION  OF  DECEASED     581 

quasi-contract,  to  enforce  which  assumpsit  had,  as  we  shall  see,^ 
been  extended  in  the  course  of  the  eighteenth  century.  Alter- 
natively these  rights  were  protected  by  the  action  of  trover ;  for, 
as  we  shall  see,^  this  action  had,  in  the  course  of  the  sixteenth 
and  seventeenth  centuries,  been  so  extended  that  it  covered 
practically  the  whole  field  of  detinue.  But  whereas  assumpsit 
had  developed  into  an  action  of  a  distinctly  contractual  nature,^ 
trover  always  retained  its  delictual  characteristics.  For  that 
reason  trover  never  lay  against  the  representative  of  a  deceased 
person — being  delictual  in  its  nature  the  maxim  actio  personalis^  etc., 
applied  to  it.*  After  full  consideration  Lord  Mansfield  reasserted 
this  principle  in  the  case  of  Hambly  v.  Trott  in  1776;^  but  he 
recognized  the  injustice  which  would  ensue  if  a  person  who  had 
been  deprived  of  his  property  was  lefl  without  a  remedy  in  con- 
sequence of  the  death  of  the  tort  feasor ;  and  he  was  careful  to 
point  out  that  he  only  decided  that  trover  would  not  lie  because 
the  injured  party  had  in  fact  another  remedy.^  **  In  most  if  not  in 
all  cases,"  he  said,^  '*  where  trover  lies  against  the  testator,  another 
action  might  be  brought  against  the  executor,  which  would  answer 
the  purpose.  An  action  on  the  custom  of  the  realm  against  a 
common  carrier  is  for  a  tort  and  supposed  crime ;  the  plea  is  not 
guilty ;  therefore  it  will  not  lie  against  an  executor.  But  assump- 
sit which  is  another  action  for  the  same  cause  will  lie :  So  if  a 
man  take  a  horse  from  another,  and  bring  him  back  again ;  an 
action  of  trespass  will  not  lie  against  his  executor,  though  it  would 
against  him  ;  but  an  action  for  the  use  and  hire  of  the  horse  will 
lie  against  the  executor." 

Thus  in  the  eighteenth  century,  this  modification  of  the  maxim 
was  enforced,  not  as  in  the  Middle  Ages  by  means  of  the  action 
of  detinue,  but  by  means  of  the  action  of  assumpsit.  This  change 
in  the  character  of  the  remedy  naturally  produced  some  uncertainty 
as  to  the  exact  extent  of  the  modification.  It  is  clear  from 
Hambly  v.  Trott  that  Lord  Mansfield  was  prepared  to  give  it  a 
very  wide  extension.     This  is  shown  both  by  his  judgment  in  that 

1  Bk.  iv  Pt.  II.  c.  3  §  3.  2  Ibid  c.  2  §  I. 

2  Above  451-452.  '♦Baily  v.  Birtles  (1663)  T.  Raym.  71. 
^  I  Cowp.  371. 

^  **  The  fundamental  point  to  be  considered  in  this  case  is,  whether,  if  a  man 
gets  the  property  of  another  into  his  hands  it  may  be  recovered  against  his  executors 
in  the  form  of  an  action  of  trover,  where  thete  is  an  action  against  the  executors  in 
another  form.  It  is  merely  a  distinction  whether  the  relief  shall  be  in  this  form  or 
that.  Suppose  the  testator  had  sold  the  sheep,  etc.,  in  question :  in  that  case  an 
action  for  money  had  and  received  would  lie.  Suppose  the  testator  had  left  them 
in  specie  to  his  executors,  the  conversion  must  have  been  laid  against  the  executors. 
.  .  .  Suppose  the  testator  had  consumed  them,  and  had  eaten  the  sheep;  what 
action  would  have  lain  then  ?  Is  the  executor  to  get  off  altogether  ?  I  shall  be 
very  sorry  to  decide  that  trover  will  not  lie,  if  there  is  no  other  remedy  for  the  right," 
I  Cowper  at  p.  373. 

'Ibid  at  p.  375. 


582  SUCCESSION  TO  CHATTELS 

case  and  by  the  manner  in  which,  as  we  shall  see,^  he  extended  the 
sphere  of  assumpsit  to  cover  all  cases  in  which  the  defendant  had 
unjustly  enriched  himself  at  the  expense  of  the  plaintiff.  Its  limita- 
tions were  drawn  somewhat  more  narrowly  by  Phillips  v. 
Homfray?  It  was  there  held  that  it  only  extended  to  the  case 
where  the  defendant  had  got  property  belonging  to  the  plaintiff 
and  had  added  it  or  its  proceeds  to  his  estate ;  and  that  it  did 
not  extend  to  other  incidental  advantages  reaped  by  the  wrong- 
doer.^ In  that  case,  for  instance,  the  deceased's  estate  was  held 
to  be  liable  for  the  value  of  the  minerals  which  he  had  wrongfully 
taken  from  beneath  the  plaintiffs  land,  but  not  for  the  deceased's 
trespass  beneath  that  land,  or  for  anything  for  way-leave  in  respect 
of  passages  used  by  him  under  the  land.  This  decision  no  doubt 
clearly  defines  the  extent  of  the  modification;  but  the  passage 
cited  above  ^  from  Lord  Mansfield's  judgment  would  seem  to 
indicate  that  he  would  have  agreed  rather  with  the  dissenting 
judgment  of  Baggallay,  L.  J.,  than  with  the  judgment  of  the  majority 
of  the  court.  Liability  for  the  use  and  hire  of  a  horse  taken  by  a 
deceased  person  does  not  seem  to  differ  materially  from  liability 
for  the  use  of  passages  under  the  plaintiff's  land.  In  both  cases  it  is 
clear  that  the  damages  are  unliquidated  and  given  for  an  indirect 
benefit.  In  fact  it  would  probably  be  true  to  say  that  the  law, 
as  settled  by  the  majority  of  the  Court  of  Appeal,  represents  the 
extent  of  this  modification  as  shaped  by  the  action  of  detinue  more 
correctly  than  its  extent  as  shaped  by  the  action  of  assumpsit. 
From  this  point  of  view  it  is  a  remarkable  reversion  to  the  rule  of 
the  mediaeval  common  law. 

We  may  well  wonder  that  the  law  of  this  period  tolerated  so 
restricted  a  view  of  the  executor's  liability  for  the  acts  of  the 
deceased.  That  it  produced  inconvenience  we  can  see  from  the 
applications  made  to  the  chancellor  at  the  end  of  this  period.^  We 
may  remember,  however,  that  it  was  in  practice  mitigated  by  the 
very  frequently  recurring  directions  in  wills  that  executors  were  to 
pay  debts  and  to  make  restitution  for  wrongs  done  by  the  deceased,^ 
while,  if  a  person  died  intestate,  the  administrator  was  bound  to 
employ  part  of  his  estate  in  pious  uses  for  the  good  of  his  soul ;  and 
the  payment  of  debts  and  restitution  for  injuries  were  recognized 

i  Bk.  iv.  Pt.  II.  c.  3  §  3.  2  (1883)  24  CD.  439. 

2  "When  there  is  nothing  among  the  assets  of  the  deceased  that  in  law  or  in 
equity  belongs  to  the  plaintiff,  and  ths  damages  which  have  been  done  to  him  are 
unliquidated  and  uncertain,  the  executors  of  a  wrongdoer  cannot  be  sued  merely 
because  it  was  worth  the  wrongdoer's  while  to  commit  the  act  which  is  complained 
of,  and  an  indirect  benefit  may  have  been  reaped  thereby,"  ibid  at  p.  455. 

4  Above  581.  s  Below  583. 

^  See  e.g.  Test.  Ebor.  i  59,  60,  159,  226 ;  ii  69,  130 ;  for  an  elaborate  clause  of 
this  nature  in  Henry  VII. 's  will  see  Test.  Vet.  27,  28. 


REPRESENTATION  OF  DECEASED     583 

by  some  as  pious  uses.^  No  doubt  in  this  period,  when  the 
ecclesiastical  courts  did  exercise  some  kind  of  supervision  over  the 
representative,  debts  were  paid  and  restitution  was  made  which 
could  not  have  been  enforced  at  common  law.  When  their 
jurisdiction  decayed  there  was  no  sufficient  guarantee  that  executors 
or  administrators  would  thus  fulfil  the  intentions  of  the  testator. 
They  could  make  use  of  the  rivalry  between  the  common  law 
courts  and  the  ecclesiastical  courts;  and,  alleging  that  there  were 
outstanding  debts,  they  could  escape  their  obligations  to  the 
deceased.^  It  is  significant  that  in  1454  a  suitor  appealed  to  the 
Chancellor  to  force  an  executor  to  make  restitution  in  accordance 
with  the  directions  of  his  testator,  alleging  that  he  could  get  no 
remedy  either  at  common  law  or  in  the  ecclesiastical  courts.^  It 
is  probable  that  a  feeling  that  the  executor's  liability  ought  to  be 
enlarged,  combined  with  the  desire  to  compete  with  the  Chancery, 
to  induce  the  common  lawyers  to  allow  that  an  executor  could  be 
made  liable  in  an  action  of  assumpsit. 

(iii)  The  right  of  the  executor  to  the  estate  of  the  deceased. 

That  all  the  chattels  of  the  deceased  were  vested  by  law  in  the 
executor,^  that  he  took  them  in  a  representative  capacity,^  that  it 
did  not  matter  therefore  whether  he  personally  was  villein  or 
outlaw,  or  suffering  from  any  other  disability,^  were  well  settled 
principles  in  this  period.  Even  those  chattels  of  the  deceased 
which  had  been  left  as  a  legacy  vested  in  him.  The  legatee  had 
no  title  till  the  executor  had  consented  to  the  legacy.^  On  the 
other  hand,  it  was  recognized  by  the  ecclesiastical  courts  that  the 
executor,  as  he  held  the  place  of  the  Roman  heres^  was  entitled  to 
take  beneficially  property  not  otherwise  disposed  of;  and  this  rule 

^  Lyndwood  i8o  sub  voc.  Pias  Causas,  "  Idem  est  secundum  quosdam  in  his 
quae  legantur  pro  emendandis  forefactis." 

2  Above  556-557  ;  Swinburn,  Testaments  277,  says,  "  Of  this  distribution  of  the 
residue  (in  pios  tisus)  there  is  but  small  use  in  these  days,  as  well  for  that  the  residue 
is  commonly  left  to  the  executors,  as  also  for  that  the  executors  are  afraid  that  seme 
unknown  debts  due  by  the  testator  should  afterward  arise;"  at  pp.  254b,  255,  he 
tells  us  how  debts  are  "  thrust  into  the  inventory,"  whereby  the  legatees  and  children 
are  defrauded. 

3  •«  And  howe  be  it  that  he  hath  often  tymes  required  oon  Sir  John  Depden, 
preest,  executour  of  the  testament  and  last  will  of  the  said  late  Bisshop,  to  make 
restitucion  of  the  said  xx  marc  according  to  his  last  will,  the  which  will  was  that  if  he 
had  unduely  offended  eny  man  or  injustly  receyved  the  goodes  of  eny  persone,  that 
his  executours  shold  duely  satisfie  theym  therfore  as  right  wold,  yet  the  said  Sir  John 
Depden  it  utterly  refuseth,  contrary  to  the  will  of  the  said  late  Bisshop,"  Select  Cases 
in  Chancery  (S.S.)  136-137. 

4Y.B.  14  Hy.  IV.  Hil.  pi.  37  (p.  2S)  per  Thirning;  cp.  Y.BB.  20  Hy.  VII.  Mich, 
pi.  14;  21  Hy.  VIII.  Trin.  pi.  14  per  Fitzherbert. 

5  Y.BB.  12,  13  Ed.  III.  (R.S.)  168,  170;  17,  18  Ed.  III.  (R.S.)  356;  cp.  Goffin, 
54,  55  criticizing  Holmes's  views  in  H.L.R.  ix  42;  below  587  n.  6. 

8  Y.BB.  18  Hy.  VI.  Pasch.  pi.  4  per  Fortescue ;  21  Hy.  VI.  Hil.  pi.  17 ;  21  Ed. 
IV.  Mich.  pi.  8. 

7  Y.B.  2  Ed.  IV.  Mich.  pi.  I  per  Ashton. 


584  SUCCESSION  TO  CHATTELS 

was  accepted  by  the  common  law  courts,  and  applied  a  good  deal 
more  absolutely  and  rigidly  than  it  was  applied  in  the  ecclesiastical 
courts.^  It  is  with  respect  to  the  choses  in  action  to  which  the 
deceased  was  entitled  that  more  question  arises.  There  can  be  no 
doubt  that  the  maxim  actio  personalis  moritur  cum  persona  applied 
to  the  right  of  the  executor  to  sue  as  well  as  to  his  liability  to  be 
sued.  But  the  legislature  intervened  to  give  the  executor  rights  of 
action  at  a  much  earlier  date  than  it  intervened  to  place  him  under 
legal  liability.  Perhaps  this  was  due  to  the  fact  that  the  directions 
of  testators  in  their  wills  to  redress  injuries,  and  the  powers  of 
administrators  to  do  their  best  for  the  soul  of  the  deceased,  rendered 
the  absence  of  legal  liability  less  onerous  in  practice  than  the 
absence  of  a  legal  right  to  sue  would  have  been. 

From  Edward  I.  's  reign  onwards  the  executor  could  always  sue 
in  debt  or  detinue.^  In  1285  he  was  allowed  to  bring  the  action 
of  account^  In  1330  the  statute  "  de  bonis  asportatis  in  vita 
testatoris"  allowed  him  to  sue  for  trespasses  done  to  the  goods  and 
chattels  of  his  testator ;  *  and  this  eventually  gave  him  the  right  to 
bring  either  detinue,  trespass,  trespass  on  the  case,  or  trover  in 
appropriate  cases  in  respect  of  different  wrongs  to  these  goods  and 
chattels.^  In  1350  these  rights  were  extended  to  the  executors 
of  executors;^  and  the  effect  of  the  statute  of  1357  was  to  give 
administrators  the  same  rights.'^  No  question  was  ever  raised,  nor 
could  it  be,  as  to  their  right  to  bring  the  action  of  assumpsit.  But 
in  respect  of  those  contracts  which  were  of  such  a  personal  nature 
that  the  representative  could  not  be  sued  upon  them,  he  could  not 
sue ;  ^  and  he  could  not  recover  for  injuries  to  the  real  estate  of  the 
deceased.  The  statute  of  William  IV.'s  reign,  which  provided  for 
the  liability  of  the  representative,  provided  also  for  his  right  to  sue 

^  For  the  ecclesiastical  law  see  below  592  n.  2 ;  for  the  common  law  see 
Perkins,  Profitable  Book  §  525  ;  in  later  law  the  equitable  modifications  of  the  common 
law  rule,  see  Bl.  Comm.  ii  514-515,  produced  rules  more  akin  to  the  rules  applied 
at  this  period  in  the  ecclesiastical  courts. 

2  Above  575 ;  the  rule  as  to  wager  of  law  which  curtailed  the  liability  to  be  sued 
(above  578)  clearly  cannot  apply,  see  Y.B.  3,  4  Ed.  II.  (S.S.)  21 ;  the  Eyre  of  Kent 
(S.S.)  ii  40-41. 

*I3  Edward  I.  st.  i  c.  23.  In  a  MS.  of  a  register  of  the  early  years  of  Edward  I. 
(vol.  ii  App.  Vd  (6) ;  H.L.R.  iii  214)  there  is  a  statement  that  "  ut  dicitur  "  executors 
may  bring  account  against  a  bailiff  of  the  deceased,  though  the  heir  cannot ;  but  it  is 
said  that  the  ecclesiastical  courts  also  have  jurisdiction  in  such  case. 

44  Edward  III.  c.  7. 

^See  Russel  and  Prat's  Case  (1590)  4  Leo.  44 — it  is  clear  that  there  was  some 
hesitation  about  allowing  trover;  cp.  Twycross  v.  Grant  (1878)  4  C.P.D.  at  p.  45 
per  Bramwell,  L.J. 

^  25  Edward  III.  st.  5  c.  5. 

^  Above  568-569  ;  thus  it  was  assumed  in  Y.B.  36  Hy.  VI.  pp.  7,  8  that  4  Edward 
III.  c.  7  applied  to  administrators ;  cp.  Smith  v.  Colgay  (1595)  Cro.  Eliza.  384,  where 
it  was  resolved,  without  argument,  that  they  might  sue  by  the  equity  of  the  statute. 

8  Above  579  n.  4;  Chamberlain  v.  Williamson  (1814)  2  M.  and  S.  406. 


k 


POSITION  OF  REPRESENTATIVE      585 

for  injuries  to  the  real  estate.^  Thus  both  the  active  and  passive 
transmission  of  liabilities  have  been  put  upon  a  similar  basis.  The 
maxim  actio  personalis  moritur  cum  persona  is  still  part  of  the  law  ; 
but  the  exceptions  have  to  a  large  extent  eaten  up  the  rule. 

The  Position  of  the  Representative  at  Common  Law  and  in 
the  Ecclesiastical  Courts 

(i)  At  common  law. 

All  the  chattels  of  the  deceased  were  vested  in  the  representative. 
He  could  sue  the  deceased's  debtors  and  could  be  sued  by  the 
deceased's  creditors  on  such  obligations  as  survived  the  death. 
When  there  were  several  representatives  the  act  of  one  was  the  act 
of  all ;  ^  but  they  must,  if  they  were  suing  or  being  sued  in  their 
representative  capacity,  be  all  joined  in  the  writ,^  unless  the  one 
not  joined  had  been  summoned,  and,  by  judgment  of  the  court, 
severed.^  In  the  case  of  executors  it  was  necessary  to  join  even 
those  who  had  refused  ofifice.^ 

It  was  from  the  point  of  view  of  the  right  of  the  representative 
to  the  property  of  the  deceased,  and  more  especially  from  the  point 
of  view  of  his  right  to  sue  and  liability  to  be  sued,  that  the  common 
law  considered  his  position ;  and  the  common  law  has  never  really 
attempted  to  adopt  any  other  point  of  view.  As  we  have  seen, 
questions  as  to  those  beneficially  entitled  to  the  property  of  the 
deceased,  whether  on  intestacy  or  by  way  of  legacy,  were  matters 
for  the  ecclesiastical  courts.  If  the  common  law  courts  noticed  such 
questions  they  contented  themselves  with  following  the  rules  which 
the  ecclesiastical  courts  applied.^  But,  though  a  large  class  of 
questions  were  thus  outside  the  sphere  of  the  common  law  courts, 
the  questions  which  they  did  entertain  necessitated  the  growth  of  a 
certain  number  of  rules  dealing  with  the  administration  of  the  estate. 
It  is  with  these  common  law  rules,  some  of  which  are  still  part  of 

1 3,  4  William  IV.  c.  42  §  2. 

2Y.BB.  21,  22  Ed.  I.  (R.S.)  258;  3S  Ed.  III.  Pasch.  p.  9;  the  rule  was  the  same 
in  the  ecclesiastical  courts,  and  the  similarity  was  noted  by  John  of  Ayton  at  p.  108. 

3Y.BB.  33-35  Ed.  I.  (R.S.)  84,  238,  the  Eyre  of  Kent  (S.S.)  ii  41-42  (executors 
suing) ;  47  Ed.  III.  Mich.  pi.  50  (executors  being  sued) ;  cp.  Y.B.  3  Hy.  VI.  Mich.  pi. 
6  where  the  rule  is  accepted  as  well  settled. 

•*  Y.B.  5  Ed.  II.  (S.S.)  (13 12)  13  ;  in  later  law  summons  and  severance  became  the 
centre  of  a  mass  of  technical  rules  and  distinctions,  see  Read  and  Redman's  Case 
(1613)  10  Co.  Rep.  134a. 

'^  Y.B.  49  Ed.  III.  Pasch.  pi.  10  at  p.  17 ;  this  rule  was  the  law  till  20,  21  Victoria 
c.  77  §  79,  the  reason  being  that  the  executor,  being  appointed  by  the  testator,  could, 
though  he  had  refused  to  prove  the  will,  change  his  mind  ;  the  only  case  to  the 
contrary  seems  to  be  that  in  Y.B.  i8  Ed.  II.  613,  and  even  in  that  case  it  is  not  clear 
that  the  same  rule  was  not  apphed;  that  it  was  law  in  Edward  I.'s  reign  maybe 
gathered  from  Y.B.  33-35  Ed.  I.  (R.S.)  86. 

^  Above  554;  John  of  Ayton  log;  Lyndwood  169  sub  voc.  De  Damnis ;  Y.B.  10 
Hy.  IV.  Mich.  pi.  2  per  Gascoigne,  C.J. 


586  SUCCESSION  TO  CHATTELS 

the  law,  though  partially  concealed  by  an  elaborate  equitable 
superstructure  erected  upon  their  foundation,  that  I  shall  deal  in 
this  section. 

The  fundamental  principle  which  the  common  law  applied  to 
determine  the  position  of  the  representative  I  take  to  be  somewhat 
as  follows :  The  representative  has  certain  powers  and  certain  duties. 
In  the  exercise  of  his  powers  he  can  assert  his  title  to  the  property, 
and  can  deal  with  it  freely  for  the  purpose  of  duly  administering 
the  estate.  As  against  third  parties  he  will  be  treated  as  the  owner, 
even  if  he  is  only  one  of  several  representatives,^  so  that  he  can  give 
third  parties  a  good  title.  But  as  against  the  creditors  of  the  estate 
he  is  bound  to  exercise  his  powers  properly;  and  though  they 
cannot  follow  the  property  alienated  and  recover  it  frotn  third 
persons,  yet  they  can  hold  the  representative  personally  liable  if  he 
has  misused  his  powers.^  Similarly  the  representative  must  pay 
the  debts  of  the  deceased ;  but  he  is  only  liable  to  pay  out  of  the 
property  of  the  deceased.  When  the  property  has  all  been  paid 
out  in  a  due  course  of  administration  he  can  plead  "  plene 
administravit,"  and,  if  he  proves  his  plea,  judgment  will  be  entered 
for  him.  But  here  again  he  will  be  personally  liable  if  the  property 
has  been  paid  out  otherwise  than  in  a  due  course  of  administration.^ 
As  with  his  powers  so  with  his  duties,  any  irregularity  of  conduct 
means  personal  liability.  This  is  the  sanction  which  the  common 
law  employs  to  enforce  fulfilment  of  its  rules  as  to  administration. 
That  this  principle  is  applied  throughout  all  the  rules  of  adminis- 
tration which  the  common  law  has  evolved  in  this  period  will  be 
clear  if  we  look  at  some  of  the  rules  relating  firstly  to  the  powers 
of  the  representative  and  secondly  to  his  liabilities. 

(i)  The  representative  has  the  right  to  dispose  of  the  estate  for 
the  payment  of  debts ;  but  by  Edward  I  V.'s  reign  certain  rules  had 
been  laid  down  as  to  the  order  in  which  these  debts  were  payable. 
Debts  of  record  come  first,  then  debts  by  specialty,  and  lastly  other 

1  Y.BB.  42  Ed.  III.  Mich.  pi.  12  (Trespass) ;  38  Ed.  III.  Pasch.  p.  9  (Debt) ;  for 
a  statement  of  this  principle  in  modern  law  see  Scott  v.  Tyler  (1788)  2  Dick,  at 
p.  725  per  Lord  Thurlow. 

2  Y.B.  9  Hy.  VI.  Hil.  pi.  2  Cottesmore  said,  '•  Peut  etre  qu'ils  (the  executors)  ont 
vendu  les  biens  a  auters  persons,  et  il  n'est  raison  que  les  biens  loyalment  achetes 
per  auters  persons  soient  pris  hors  de  lour  possession  {ad  quod  tola  curia  concessit), 
et  en  tiel  cas  les  executors  seront  charges  de  lour  biens  propres  .  .  .  ils  poient  vendre 
devant  jugement  rendu,  et  done  ils  seront  charges  de  lour  biens  propres  (and  not  in 
respect  of  the  testator's  goods  alienated  before  judgment)  per  totam  curiam." 

^Y.B.  II  Hy.  VI.  Mich.  pi.  12  Danby  said,  "Si  un  executor  fait  sicome  il 
appartient  al  executor  a  faire,  il  ne  sera  charge  forsque  de  biens  le  mort ;  come  s'ils 
pledent  Pleinment  administrc,  ou  qu'il  ad  un  auter  coexecutor,  etc.,  tout  soit  que  ceo 
soit  trouve  encontre  luy,  il  ne  sera  charge  forsque  des  biens  le  mort :  mes  executor 
per  son  fait  demesne  peut  alterer  Paction  le  pleintif  et  luy  charger  de  ses  propres 
biens ;  come  s'il  ust  plede  Onque  executor  ne  onque  administre  come  executor  ou  faux 
acquittal  que  est  trouve  encontre  luy;"  cp.  Y.BB.  17,  18  Ed.  III.  (R.S.)  362  ;  11  Hy. 
IV.  Trin.  pi.  3. 


POSITION  OF  REPRESENTATIVE      587 

debts ;  and  in  any  class  of  debts  those  owing  to  the  king  had  the 
priority.^  No  legacies  were  payable  till  debts  were  satisfied.^  A 
representative  who  paid  legacies  before  debts,  or  who  paid  debts  in 
the  wrong  order,  would  not  succeed  in  proving  a  plea  of  "  plene 
administravit"  ^  He  would  be  personally  liable  just  as  if  he  had 
wasted  {devastavit)  the  assets  of  the  deceased.  But  if  nothing  of 
this  kind  could  be  alleged  against  the  representative  the  mere  fact 
that  a  creditor  had  not  been  paid  would  not  give  him  any  cause  of 
complaint,  and  a  plea  of  ** plene  administravit"  would  be  an 
answer  to  his  action.  It  will  be  clear  that  this  procedural  rule  is 
really  the  root  of  the  doctrine  of  preference.  The  action  of  the 
representative  who  pays  a  creditor  in  a  due  course  of  administration 
cannot  be  questioned.* 

Very  much  the  same  principle  was  applied  to  other  dealings 
by  the  representative  with  the  assets.  Thus,  if  an  executor 
traded  with  the  assets  of  a  deceased  person  (a  power  sometimes 
specially  conferred  by  will)^  he  could  sue  in  his  own  name;  for, 
as  regards  third  parties,  he  has  power  to  deal  with  the  assets 
as  he  pleases,  though  as  regards  the  estate  of  the  deceased  he 
must  account  for  all  the  profit  which  he  receives.  This  point 
was  very  neatly  raised  and  decided  in  an  action  brought  upon 
a  writ  of  account  shortly  reported  in  the  Year  Book  of  1 8  Henry 
VI.  as  follows:^  **A  married  woman  brought  a  writ  of  account, 
alleging  that  the  defendant  received  so  much  from  her  to  trade 
with  to  her  use.  The  defendant  pleaded  that  at  the  time  of 
the  receipt  supposed  the  plaintiff  was  a  married  woman.  The 
plaintiff  replied  that  long  before  her  marriage  the  money  be- 
longed to  such  a  one  who  had  made  her  his  executrix.  The 
question  was  whether  this  replication  was  sufficient  to  maintain 
the  action  or  no,  seeing  that  the  declaration  alleged  a  receipt 
to   the  use  of   the  woman,  and    seeing  that  a  married    woman, 

1  Y.B.  21  Ed.  IV.  Pasch.  pi.  2 ;  cp.  Y.B.  11  Hy.  VII.  Hil.  pi.  i ;  Dean  of  Exeter 
V.  Trewinnard  (1553)  Dyer  80a. 

2 Y.B.  21  Ed.  IV.  Pasch.  pi.  2  per  Choke  and  Brian;  cp.  a  discussion  of  the 
question  by  John  of  Ayton,  p.  log ;  it  is  to  be  noted  in  view  of  this  discussion  that  in 
the  Y.B.  above  cited  Littleton  seemed  to  hold  the  view  that  unless  the  debts  were 
due  to  the  king  no  devastavit  was  committed  by  paying  legacies  first. 

3  Cp.  Y.B.  9  Ed.  IV.  Trin.  pi.  4  p.  13a /^r  Choke  and  Brian. 

4  Above  586.  "^See  e.g.  Test.  Ebor.  i  85  (1368). 
«Y.B.  18  Hy.  VI.  Pasch.pl.  3;   cp.  Y.BB.  11  Hy.  VI.  Pasch.  pi.  27,  ''Nota 

que  fuit  dit  per  Babino^ton  que  si  executor  fait  marchandise  ove  les  biens  le  mort, 
que  I'increse  que  vient  de  cet  marchandise  sera  adjuge  les  biens  le  testator  come 
les  principals  biens ; "  17,  18  Ed.  III.  (R.S.)  356  per  Shardelowe.  Probably  it  is 
this  freedom  allowed  by  the  law  to  the  executors  in  dealing  with  the  assets  as  their 
own  qua  third  persons  which  accounts  for  the  strictness  of  the  liability  of  the 
executor  for  the  safe  custody  of  such  assets ;  there  is,  in  fact,  no  need  to  suppose, 
as  Holmes  does,  H.L.R.  ix  46,  a  survival  from  the  time  when  the  assets  were 
regarded  as  the  executor's  own ;  the  principle  would  be  the  same  as  that  applied 
to  the  bailee,  above  337. 


588  SUCCESSION  TO  CHATTELS 

notwithstanding  the  fact  that  she  was  an  executrix,  could  not 
hold  goods  to  her  own  use,  though  she  could  dispose  of  them 
to  the  use  of  the  testator.  But  it  was  held  that  the  action 
lay  because  she  did  hold  to  her  own  use,  so  far  as  third  parties 
were  concerned ;  though,  when  the  third  party  had  paid  the 
money,  and  the  woman  had  received  it,  she  had  the  whole  of 
it  to  the  use  of  the  testator." 

What  were  the  rights  of  the  representative  to  or  from  whom 
a  debt  was  due  from  or  to  the  deceased  were  not  very  clearly 
defined  by  the  common  law  till  the  last  half  of  the  sixteenth 
century. 

{a)  If  a  debt  was  due  to  the  representative  from  the  deceased 
it  would  seem  that  the  ecclesiastical  courts  had  always  allowed 
him  to  retain  it ;  ^  and  there  was  authority  for  this  view  in 
the  Year  Books.  **  Suppose,"  said  Willoughby,  J.,  in  1346, 
**your  debtor  makes  you  his  sole  executor,  and  you  have  ad- 
ministration of  his  goods,  in  that  case  you  cannot  recover  any- 
thing, but  you  will  take  it  yourself  de  la  plus  belle,  and  that 
will  be  allowed  to  you  before  the  Ordinary  on  your  account."^ 
On  the  other  hand,  the  view  seems  to  have  been  held  in  some 
of  the  Year  Books  that  if  a  creditor  were  made  sole  executor, 
the  debt  disappeared,  because  there  was  now  no  one  against 
whom  an  action  could  be  brought  for  the  sum  other  than  the 
creditor  himself;  and  a  man  cannot  sue  himself;  but  that  the 
rule  did  not  apply  if  there  were  coexecutors,  because  the  one 
could  then  sue  the  other. ^  This  view  had  been  rejected  in 
1346  by  Willoughby,  J.,"*  and  his  view  ultimately  prevailed.  It 
was  settled  in  Henry  VI  I. 's  reign  that  the  common  law  courts 
would,  like  the  ecclesiastical  courts,  allow  a  right  of  retainer 
both  to  a  sole  executor  and  to  co-executors.  ''  Three  things," 
said  Fineux,  C.J.,^  "belong  to  the  office  of  an  executor.  The 
first  is  to  act  honestly,  the  second  to  act  diligently,  the  third 
to  act  faithfully.  And  to  say  that  executors  cannot  retain  the 
goods  of  the  testator  by  their  own  act,  because  they  shall  not 

^  Lyndwood  181  sub  voc.  Retinedum,  **  Est  enim  regulare,  quod  pro  debito 
natural!,  ubi  non  datur  actio,  potest  quis  uti  jure  retentionis." 

2Y.B.  20  Ed.  III.  (R.S.)  ii  422;  see  also  Y.B.  12  Hy.  IV.  Pasch.  pi.  11; 
but  in  that  case  the  ground  upon  which  the  right  was  placed  was  not  that  of 
Lyndwood  and  Willoughby,  J. — "  Home  est  tenu  d'estre  prochein  a  soy  meme, 
et  Jicecfuit  opinion  quorundam ;  "  but  it  is  the  view  of  Lyndwood  and  Willoughby 
which  has  prevailed,  Plowden  at  p.  185  ;  and  possibly  it  is  the  adoption  of  their 
reasoning  which  causes  it  to  extend  to  a  debt  barred  by  the  Statute  of  Limitations. 
For  modern  views  as  to  the  origin  of  the  right  see  Talbot  v.  Frere  (1878)  9 
CD.  at  p.  374 ;  Davidson  v.  Ulidge  (1884)  27  CD.  at  p.  481. 

3Y.BB,  12,  13  Ed.  III.  (R.S.)^^;"  Hillary  and  Shardelowe ;  11  Hy.  VI.  Pasch. 
pi.  30  at  p.  38  per  Strange,  who  said  that  if  the  creditor  were  made  sole  executor 
he  should  refuse  to  administer  ;  Y.B.  20  Hy.  VII.  Mich.  pi.  14  per  Rede. 

4  Y.B.  20  Ed.  III.  (R.S.)  ii  420-422.  5  Y.B.  20  Hy.  VII.  Mich.  pi.  14. 


POSITION  OF  REPRESENTATIVE      589 

be  the  judge  of  their  own  interest  (is  wrong) ;  for  it  seems  to 
me  that  if  they  do  so  honestly  they  may  well  be  their  own 
judges."  To  this  all  the  judges  agreed  except  Kingsmill.  In 
spite  of  this  decision,  it  was  argued  in  1558  that  a  creditor 
executor  could  not  retain,  but  should  refuse  before  the  ordinary 
and  so  preserve  his  right  to  sue.^  But  the  impolicy  of  this 
rule  was  exposed  by  the  majority  of  the  court,  and  the  executor's 
privilege  of  retainer  was  finally  established.^ 

(b)  In  the  converse  case,  when  a  debt  was  due  by  the  executor 
to  the  deceased,  the  law  was  substantially  settled  at  the  end 
of  the  fifteenth  century.  As  early  as  Edward  XL's  reign  it 
would  seem  that  opinion  was  tending  towards  the  view  that 
no  action  would  lie  for  the  debt.^  But  for  some  time  it  seems 
to  have  been  uncertain  whether,  if  the  debt  was  due  by  one  of 
several  executors,  the  debtor  executor  could  not  be  severed  and 
action  brought  against  him  by  the  others.^  It  was,  however, 
settled  in  Edward  IV.'s  reign  that  this  could  not  be  done.^ 
The  action  was  extinct ;  but  in  the  interest  of  the  other  creditors, 
the  debt  was  regarded  as  assets  for  payment  of  debts,  ^  and, 
later,  as  assets  for  the  payment  of  legacies  if  the  testator  had 
so  directed.''  This  extinguishment  of  the  right  of  action  operated 
whether  or  not  the  executor  proved  the  will,  and  whether  or 
not  he  administered  ;  ^  but  it  did  not  operate  if  he  formally 
refused  to  become  executor.^  The  appointment  by  the  ordinary 
of  a  debtor  to  be  administrator  had  no  effect  upon  the  debt 
because  this  was  the  act,  not  of  the  creditor,  but  of  a  third 
person — the  ordinary.  ^^ 

(ii)  If  we  turn  to  the  liabilities  of  the  representatives  we  find 
that  so  long  as  they  duly  administered  the  estate  a  judgment 
against  them  could  only  be  "de  bonis  testatoris."  But  a  very 
slight  amount  of  negligence,  even  a  mistake  in  pleading,  would  be 
sufficient  to  render  them  liable  to  pay  damages  and  costs  out  of 

1  Woodward  v.  Lord  Darcy  (1558)  Plowden  184. 

2  Ibid  at  p.  185  seqq. 

3Y.B.  4  Ed.  II.  (S.S.)  (1310-1311)  150-153 — it  would  seem  from  the  report 
that  the  court  did  not  regard  the  action  as  legally  impossible,  though  in  the 
end  the  plaintiff  was  non-suited. 

4  See  Y.B.  12  JRich.  II.  1-3. 

"^  Y.B.  21  Ed.  IV.  Pasch.  pi.  4  per  Curiam  ;  Woodward  v.  Lord  Darcy  (1558) 
Plowden  184  ;  Wankford  v.  Wankford  (1702)  i  Salk.  299. 

8  Y.B.  8  Ed.  IV.  Pasch.  pi.  ^  per  Dan  by,  Choke  and  Moyle ;  followed  in 
Woodward  v.  Lord  Darcy  (1558)  Plowden  at  p.  186;  and  by  Holt,  C.J.,  in 
Wankford  v.  Wankford  (1702)  i  Salk.  at  p.  306. 

■^  Flud  V.  Rumcey  (1610)  Yelv.  160. 

8Y.BB.  20  Ed.  IV.  Hil.  pi.  2;  21  Ed.  IV.  Pasch.  pi.  4;  Wankford  v. 
Wankford  (1702)  i  Salk.  at  p.  307. 

^  Wankford  v,  Wankford,  loc.  cit. 

1°  Sir  J.  Nedham's  Case  (1611)  8  Co.  Rep,  at  f.  136a. 


590  SUCCESSION  TO  CHATTELS  ' 

their  own  estate ;  while  more  serious  acts  of  commission,  such  as 
a  wasting  of  the  testator's  assets  or  a  conversion  of  them  to  their 
own  use,  rendered  them  Hable  to  a  judgment  against  them  '*de 
bonis  propriis."  ^  The  strictness  of  these  rules  may  be  seen  from 
the  fact  that  it  is  only  by  virtue  of  a  statute  of  the  last  century 
that  an  executor  who  pays  legacies  in  good  faith,  and  in  excusable 
ignorance  of  merely  contingent  debts,  escapes  from  personal 
liability.^  In  this  period  the  strictness  of  these  rules,  coupled 
with  the  rigour  and  technicality  of  the  prevailing  system  of  pro- 
cedure, worked  great  hardship,  sometimes  to  creditors,  and  some- 
times to  the  representative.  As  in  other  branches  of  the  law, 
that  system  gave  many  opportunities  to  the  unscrupulous.  I  will 
give  two  illustrations  of  the  hardships  which  were  sometimes 
occasioned  to  these  two  classes  of  persons.  In  1343^  a  case  is  re- 
ported in  which  a  debt  was  demanded  against  three  executors.  One 
appeared  and  pleaded  and  the  others  did  not.  The  plea  was  found 
bad.  Judgment  was  given  as  against  all  three  de  bonis  testatoris. 
On  an  application  for  an  execution  de  bonis  propriis,  the  court  said 
that  such  a  judgment  might  be  given  against  the  one  who  had  ap- 
peared and  pleaded  a  false  plea,  but  not  against  the  others.^  Pul- 
teney  (counsel  for  the  plaintiff)  pointed  out  ^  that  such  a  decision 
gave  unlimited  opportunities  for  fraud.  **  If  we  cannot  have  execu- 
tion in  respect  of  their  own  goods  great  mischief  follows :  for,  in 
that  case,  where  a  writ  is  brought  against  several  executors,  one 
who  has  nothing  will  appear  by  covin,  and  the  others,  who  had  as- 
sets of  the  goods  of  the  deceased,  and  sold  them,  will  absent  them- 
selves, and  so  execution  will  never  be  had."  In  1456^  it  was 
proposed  to  make  executors  personally  liable  because  they  had 
pleaded  **  not  the  deed  of  their  testator,"  when  in  fact  the  deed 
was  the  deed  of  their  testator.  It  was  pointed  out  that  if  this 
was  law  no  executor  would  dispute  a  liability,  and  the  property 
of  testators  might  be  wasted  in  paying  debts  upon  forged  deeds. 
Fortescue  C. J.,  did  not  attempt  to  defend  the  rule — indeed,  he 
repeats  and  approves  of  the  arguments  against  it,  saying  that  no 

^See  e.g.  Y.B.  34  Hy.  VI.  Mich.  pi.  42  at  p.  22  per  Prisot ;  Woodward  v. 
Chichester  (1560)  Dyer  185b ;  cp.  Goffin  52,  53  and  cases  there  cited. 

2  22,  23  Victoria  c.  35  §  29 ;  cp.  Williams,  Executors  (gth  ed.)  i2o5. 

3 Y.B.  17,  18  Ed.  III.  (R.S.)  6-12;  the  result  of  the  case  was  peculiar;  the 
hardship  of  the  judgment  was  so  manifest  that  Stonore,  C.J.,  after  discussion  with 
the  council,  directed  the  parties  to  apply  to  the  Chancery  for  a  non  obstante  writ 
ordering  the  court  to  effect  execution  personally  against  the  other  two  executors — 
which  was  done,  as  appears  by  the  note  from  the  record ;  for  another  instance  of 
an  equitable  decision  see  Eyre  of  Kent  (S.S.)  ii  xvi. 

*  See  Anon.  (1562)  Dyer  210a. 

^  At  p.  8.  Note  that  later  one  executor  might  have  had  a  remedy  against  a 
coexecutor  by  deceit  on  the  case  if  the  latter  had  fraudulently  admitted  a  cause  of 
action  against  both,  Y.B.  9  Ed.  IV.  Trin.  pi.  6  per  Littleton. 

«Y.B.  34Hy.VI.Mich.pl.  42. 


POSITION  OF  REPRESENTATIVE      591 

one  would  lay  it  down  now  for  the  first  time ;  but  he  held  that  the 
established  practice  was  too  well  settled  to  overrule.^ 

The  weak  point  of  these  common  law  rules  lay  in  the  fact 
that  the  mode  in  which  they  were  evolved  prevented  the  court 
from  taking  any  extended  view  of  the  administration  of  the  estate 
as  a  whole.  As  we  have  seen,  the  procedure  of  the  common  law 
courts  was  designed  to  try  actions  between  plaintiffs  and  de- 
fendants :  ^  it  was  not  designed  for  administrative  work.  The 
application  of  rigid  rules  to  the  representative  at  the  suit  of  a 
particular  creditor  of  the  estate  was  bound  to  work  injustice  both 
to  the  representative  and  to  the  other  creditors.  Though  these 
rules  secured  a  considerable  freedom  of  action  to  the  representative 
in  the  exercise  of  his  powers,  they  made  his  liabilities  extremely 
onerous  if  he  was  an  honest  man,  and  extremely  easy  to  evade  if 
he  was  inclined  to  play  the  part  of  the  unjust  steward. 

(2)  In  the  ecclesiastical  courts. 

In  this  period  the  machinery  of  the  ecclesiastical  courts 
afforded  some  remedy  for  the  defect  which  has  just  been  noticed 
in  the  common  law  rules.  Some  of  the  rules  applied  by  the 
ecclesiastical  courts  may  have  influenced  the  rules  which  in  later 
days  were  evolved  by  the  court  of  Chancery  for  the  administration 
of  estates,  and  may,  from  this  point  of  view,  have  had  a  permanent 
influence  upon  the  fabric  of  English  law.  But  many  of  them  be- 
came obsolete  or  were  forgotten — sometimes  to  be  revived  as  new 
ideas  ^ — when  the  court  of  Chancery  annexed  this  new  sphere  of 
influence.  I  shall  not,  therefore,  treat  of  these  rules  at  any  great 
length.  I  shall  only  illustrate  the  manner  in  which  they  were  in 
this  period  a  useful  and  a  necessary  supplement  to  the  rules  of 
the  common  law. 

The  ecclesiastical  courts  kept  the  whole  administration  of  the 
estate  under  their  eye  from  the  probate  of  the  will  or  the  grant 
of  letters  of  administration.  They  compelled  the  representative 
to  produce  an  inventory  *  by  treating  him  much  as  the  common 
law  courts  treated  the  executor  de  son  tort ;  ^  and  in  a  suitable 

1  At  p.  24,  '*  Si  cest  jugement  fuit  or  premierement  etre  a  juge,  jeo  entends  que 
nul  juge  or  voille  ajuger  que  le  pleintiff  recovera  des  biens  I'executor  propres,  etc., 
mes  pur  ce  que  tants  des  jugements  ont  ete  dones  en  eel  cas,  pur  ce  que  la  ley  est 
or  issint,  etc.,  et  I'usage  fait  ley  sans  auter  raison." 

2Vol.i  458-459,  637. 

3  E.g.  in  the  thirteenth  century  Archbishop  Peckham  issued  something  like  an 
advertisement  for  creditors ;  if  they  did  not  appear  within  a  certain  period  and 
could  not  assign  a  cause  for  their  delay  they  went  unpaid,  P.  and  M.  ii  341 ;  it  was 
not  till  the  statute  of  i860  (above  590  n.  2)  that  this  idea  was  adopted ;  for  another 
instance  see  above  584  n.  i. 

4  Lyndwood  176  sub  voc.  Inventarium. 

"Ibid  176  sub  voc.  Prius ;  above  571-572;  see  Chichele*s  Constitution  ot 
1416,  Wilkins,  Concilia  iii  377, 


592  SUCCESSION  TO  CHATTELS 

case  they  could  compel  him  to  give  security.^  For  the  conduct 
of  the  administration  they  laid  down  rules  not  unlike  some  of 
those  which  the  court  of  Chancery  laid  down  in  later  days  for  the 
conduct  of  trustees.  Though  it  may  be  that  the  executor,  if  not 
regarded  by  the  testator  as  simply  a  hand  to  distribute  his  goods, 
was  entitled  to  undisposed-of  residue,  he  would  hardly  have  been 
safe  in  appropriating  it  without  the  sanction  of  the  ordinary.^ 
On  the  other  hand,  if  the  executor  was  merely  an  executor,  and 
the  testator  had  left  him  nothing  for  his  trouble  and  expenses, 
the  ordinary  might  allow  him  something  from  the  goods  of  the 
deceased.^  Strict  rules  were  laid  down  as  to  the  conditions  under 
which  the  executor  might  purchase  his  testator's  goods.  ^  The 
representative  need  not  take  up  office  unless  he  chose ;  but  once 
having  taken  it  up  he  could  not  retire  as  he  pleased ;  ^  and  the 
ordinary  always  reserved  power  to  remove  a  representative  whose 
conduct  was  unsatisfactory.^  But  though  the  ordinary  tried  to 
safeguard  the  estate  by  treating  the  representative  as  a  trustee,  he 
was  careful  also  to  preserve  intact  his  powers.  It  was  admitted 
that  it  was  not  the  ordinary  who  administered  the  estate,  but  the 
representative;  and  the  ecclesiastical  law  followed  the  common 
law  in  allowing  him  great  freedom  in  the  mode  in  which  he  exe- 
cuted any  discretionary  powers  entrusted  to  him.'^  In  the  same 
way  the  ecclesiastical  law  followed  and  seconded  the  common  law 
in  giving  the  representative  facilities  for  collecting  the  estate  so 
far  as  was  necessary  for  carrying  out  the  wishes  of  the  deceased,^ 
and  in  holding  all  the  representatives  liable  in  solidum  for  acts . 

^Chichele's  Constitution  of  1416,  Wilkins,  Concilia  iii  377;   Lyndwood  170 1 
sub  voc.  Sufficienter  Cavere. 

2  Lyndwood  179  sub  voc.  Propriis  suis  bonis,  **  Quaero  quid  si  testator  plura 
bona  legavit,  sed  legatarii  repudiant  legata,  vel  ante  testatorem  mortui  sunt;  an 
ilia  bona  possit  sibi  Executor  applicare  ?  Die,  quod  si  Executor  sit  nudus  minister, 
ita  quod  nullum  commodum  est  habiturus,  tunc  non  potest  aliquid  tale  sibi  appli- 
care ;  secus  si  non  sit  minister  nudus.  .  .  .  Praemissa  intelligo  vera,  ubi  testator 
de  partibus  deficientium  nihil  disponit,  et  fecit  sibi  Executores  universorum  bon- 
orum;  nam  tales  loco  haeredum  sunt,  et  lucrantur  ill  la  quae  nee  in  specie  nee  in 
genere  per  testatorem  disposita  sunt  .  .  .  tamen  bene  faciet  talis  Executor  si 
consilio  Ordinarii  talia  disponat. " 

2  Ibid  178  sub  voc.  Lahore. 

*Ibid  178  sub  voc.  Titulo  Emptionis ;  see  ibid  180,  181  for  Archbishop 
Stratford's  constitution  denouncing  penalties  against  those  who  appropriated  the 
property  of  the  deceased. 

'  John  of  Ayton  108. 

^  Lyndwood  177  sub  voc.  Nisi  Talibus ;  P.  and  M.  ii  341. 

'Lyndwood  179  sub  voc.  Libere,  "  Possunt  Executores  libere  administrare  dum 
tamen  bona  fide  id  faciant ;  "  after  discussing  the  question  whether,  if  the  testator 
leaves  money  to  redress  injuries,  the  executor  may  spend  it  for  this  purpose  as  he 
sees  fit  without  the  bishop's  interference,  he  concludes,  **  Ego  autem  puto,  quod 
quoad  regnum  istud  haec  constitutio  sufficit  ad  excludendum  Episcopum,  una  cum 
consuetudine  in  hac  parte  diutius  observata,  quae  talia  relinquunt  depositioni 
Executorum." 

8  Ibid  175  sub  voc.  Effectum ;  see  also  ibid  171,  179. 


POSITION  OF  REPRESENTATIVE      598 

done  in  their  representative  capacity.^  Finally,  at  the  close  of  the 
administration,  the  ordinary  compelled  the  representative  to 
account.'-^  Though  the  testator  or  the  ordinary  could  dispense 
with  the  inventory,^  neither  could  dispense  with  the  liability  to 
account.^ 

We  can  see  from  the  extant  accounts  and  inventories  that  the 
rules  of  the  ordinary  were  a  considerable  safeguard.  The  follow- 
ing illustration  will  show  the  manner  in  which  the  inventory  and 
the  accounts  of  the  administration  of  the  estate  of  a  canon  of  York 
were  drawn  up  in  1452.^  The  inventory  contained  the  follow- 
ing totals,  each  made  up  of  a  large  number  of  items :  Actual 
cash  in  the  house,  ;^I20  2s.  46.,  and  one  broken  noble;  silver 
gilt  plate,  ;^44  i6s.  lod.  ;  silver  plate  £302  5s.  iid.  ;  jewels  and 
plate  for  the  chapel,  ;^I2  12s.  4^6. ;  personal  ornaments  (includ- 
ing three  pairs  of  silver-mounted  spectacles),  54s.  8d.  ;  books  in 
the  study  and' chapel,  £46  i6s.  od.  ;  canonical  vestments,  £4  i/s. 
od.  ;  furniture,  etc.,  in  the  hall  at  York,  £y  5s.  4d.,  in  the  principal 
bedchamber  at  York,  47s.  id.,  in  the  second  bedchamber  at 
York,  39s.  lod.,  in  the  third  bedchamber  at  York,  30s.  6d.  ; 
bedding  at  York,  43s.  8d. ;  contents  of  the  wardrobe,  at  York, 
;^ii  1 8s.  8d. ;  ornaments  of  the  chapel  at  York,  102s.  lod.  ; 
contents  of  chamber  under  the  wardrobe  at  York,  12s.  6d.  ;  con- 
tents of  the  pantry  at  York,  £4  13  s.  lod.,  of  the  buttery,  12  s. 
6d.,  of  the  kitchen,  £6  9s.  5d.,  of  the  brewery,  iios.  lod.,  of  the 
bakehouse,  6s.  5d.,  and  of  the  stable,  £13  lis.  2d.  ;  gravel  sold, 
9s.  There  were  similar  inventories  of  the  testator's  belongings  at 
Beverley  and  Cawood ;  and,  in  addition,  an  account  of  the  debts 
due  to  the  testator  at  different  places.  Those  which  were  regarded 
as  bad  were  separately  listed.  The  amount  due  to  him  from  his 
canonry  for  the  year  after  his  death  is  noted ;  and  the  whole 
estate  is  valued  ;^I,3I7  i8s.  id.,  plus  the  one  broken  noble.  The 
accounts  are  no  less  elaborate.  They  are  grouped  in  their  sepa- 
rate items  under  the  following  heads  :  Debts  due  by  the  deceased, 
;^55  13s.  7d.  ;  funeral  expenses,  ;^90  13s.  4-|d.  ;  payments  for 
obits,  £36  4s.  5d. ;  costs  of  probate,  53s.  9d. ;  legacies,  ;^3o8  9s. 
Ii^d.  ;  mortuary  fees,  72s.  8d. ;  salaries  of  chaplains  (who  said 
masses  for  the  soul  of  the  deceased),  ;^I4  i8s.  4d. ;  household  ex- 
penses after  the  death  of  the  testator,  ;^20  14s.  7-Jd. ;  servants* 
wages,  £g  2s.  od.  ;  settling  amounts  due  for  dilapidations  in  the 

ijohn  of  Ayton  io8. 

2  Lyndwood  i8o  sub  voc.  Sibi ;  Chichele's  Constitution  of  1416,  Wilkins, 
Concilia,  iii  377. 

'  Lyndwood  176  sub  voc.  Inventarium. 

■*  John  of  Ayton  109 ;  Lyndwood  183  sub  voc.  Fideliter ;  for  an  instance  of 
such  attempted  dispensation  by  a  testator  see  Test.  Ebor.  i  178  {1392). 

^Ibid  iii  129-152. 

VOL.   III. — 38 


594  SUCCESSION  TO  CHATTELS 

testator's  various  livings,  including  the  executor's  costs  in  London 
(7 Is.  6d.),  £201  8s.  2d.  ;  memorial  gifts  to  relations,  friends,  and 
servants  of  the  deceased,  ;^i8  3s.  ii^d.  ;  necessary  payments  in 
the  conduct  of  the  administration,  ;^I2  los.  ii^d. ;  counsel's  fees, 
24s.  4d.  ;  spent  in  charity,  £26 1^  os.  iid.  ;  the  daily  expenses  of 
the  executors,  including  the  costs  of  writs  and  money  paid  to 
others,  ;^22  2s.  id.  ;^  amounts  released  or  not  recovered  from 
debtors,  £Zo  13s.  4d.  ;  bad  debts  other  than  those  enumerated, 
;^I55  I  OS.  lod.  ;  the  sum  total  of  the  whole  amount  spent  was 
^1,308  17s.  4d.,  plus  one  or  two  items,  including  two  allowances 
made  by  the  executors  and  a  claim  against  the  deceased,  which 
were  added  in  a  postscript. 

I  have  given  the  heads  of  this  inventory  and  account  at  some 
length  because  it  shows  that,  in  the  diocese  of  York  at  least,  the 
ordinary  did  exercise  a  very  careful  supervision  over  the  conduct 
of  the  representative.  The  minuteness  of  the  account  could  not 
be  surpassed ;  and  1  cannot  doubt  that  the  estate  was  quite  as 
thoroughly  and  considerably  more  quickly  administered  than  it 
would  have  been  in  the  court  of  Chancery  in  the  eighteenth  cen- 
tury. But  bad  days  were  in  store  for  the  ecclesiastical  courts. 
The  common  law  courts  made  it  almost  impossible  for  them  to 
act  at  all.  They  would  not  allow  them  to  enquire  into  the  truth 
of  the  inventory,^  or  to  examine  the  executor's  accounts ;  ^  and 
they  issued  writs  of  prohibition  against  actions  on  the  bonds  taken 
to  secure  the  production  of  a  proper  account.*  It  is  not  surpris'ing 
that  their  consequent  decline  in  power,  coupled  with  the  narrow 
severity  of  the  common  law  rules,  enabled  dishonest  executors  to 
commit  such  frauds  that  Perkins  actually  advised  testators  to  give 
their  property  away  in  their  lifetime  rather  than  leave  it  by  way 
of  legacy,^  and  that  the  administrator  became  in  practice  the 
intestate  successor  to  the  deceased.'^  A  court  was  wanted  with 
power  to  survey  the  whole  conduct  of  the  administration,  and  to 
restrain  those  who  made  an  unconscientious  use  of  the  narrow 
rules  of  the  common  law.  This  want  was  eventually  supplied  by 
the  court  of  Chancery;  and  even  in  this  period  litigants  were 
beginning  to  appeal  to  it.'''     When,  in  the  following  period,  it  had 

1  In  this  account  (p.  151)  there  is  an  early  mention  of  solicitors,  "Una  cum 
feodis  et  regardis  datis  attornatis,  solicitariis,  et  consiliariis  executorum ; "  for  the 
history  of  solicitors  and  the  manner  in  which  they  became  a  definite  order  in  the 
legal  profession  see  Bk.  iv  Pt.  I.  c.  8. 

^Spence,  Equitable  Jurisdiction  i  579.  ^Ibid. 

^  Hughes  V.  Hughes  (1666)  Carter  125 ;  above  558. 

^  Above  556-557.  "  Above  558. 

'  Above  583  ;  see  also  Vavasour  v.  Chadworth  (Ed.  IV.)  Cal.  (R.C.)  i  xciii ; 
Select  Cases  in  Chancery  (S.S.)  loo-ioi  (1410-1412),  107-108  (1407-1.^09),  143-150 
(1456);  Y.B.  4  Hy.  VII.  Hil.  pi.  8,  where  the  Chancellor  gave  an  equitable  remedy 
in  a  case  where  there  was  no  remedy  at  law. 


POSITION  OF  REPRESENTATIVE      595 

not  only  defeated  the  attempt  of  the  common  law  courts  to  cripple 
its  jurisdiction,  but  had  even  asserted  its  superiority  to  those  courts 
by  making  good  its  claims  to  issue  injunctions  to  stop  proceedings 
at  common  law,^  its  control  over  all  questions  connected  with  the 
administration  of  the  estates  of  deceased  persons  was  assured.^  It 
is  for  this  reason  that  we  must  look  to  the  rules  of  equity  for  our 
present  law  on  this  subject. 

1  Vol.  i  461-465. 

2  Ibid  629-630;  Bk.  iv.  Pt.  I.  cc.  4  and  8. 


CHAPTER  VI 

PROCEDURE  AND  PLEADING 

THAT  rules  of  procedure  and  pleading  exercise  both  a  pre- 
dominating and  a  permanent  influence  upon  the  shape  taken 
by  the  substantive  rules  of  \aw  in  those  legal  systems  which 
have  had  a  continuous  history  is  a  well  ascertained  fact  of  legal 
development ;  and  the  history  which  I  have  just  related  has  fur- 
nished many  illustrations  of  its  truth.  But  in  this  chapter  I  am 
concerned,  not  with  these  larger  and  more  general  influences  exer- 
cised by  this  branch  of  the  law,  but  with  the  evolution  of  the  rules 
themselves.  We  have  seen  that  in  the  preceding  period  certain 
primitive  rules  of  procedure  and  pleading  had  been  evolved.^  But 
in  this  branch  of  the  law,  the  new  methods  of  royal  justice,  and  the 
new  ideas  which  came  with  the  legal  renaissance  of  the  twelfth  and 
thirteenth  centuries,  exercised  a  more  decisive  and  a  more  revolu- 
tionary influence  than  in  any  other.  In  the  criminal  law  the  new 
process  of  presentment  and  indictment ;  in  the  civil  law  the  system 
of  royal  writs,  the  growth  in  the  complexity  of  the  rules  of  process, 
and  the  great  elaboration  of  the  rules  of  pleading  which  necessarily 
followed  from  the  permission  to  litigants  to  use  many  various  ''  ex- 
ceptions" and  *' replications ; "  in  both  the  criminal  and  the  civil 
law  the  spread  of  trial  by  jury — all  combined  to  recast  the  system 
of  procedure  and  pleading  into  more  elaborate  and  sometimes  more 
rational  forms.  Some  of  the  more  primitive  rules,  it  is  true,  sur- 
vived, and  continued,  right  down  to  the  nineteenth  century,  to  exist 
side  by  side  with  the  new  rules  which  had  come  to  regulate  the 
conduct  and  machinery  of  trials  and  actions ;  for  the  ideas  on 
which  they  rested  still  permeated  men's  minds  in  this  mediaeval 
period ;  and  the  cessation  of  the  influence  of  Roman  law  at  the 
end  of  the  thirteenth  century,  and  the  growth  of  a  crabbed  techni- 
cal habit  of  mind  in  the  common  lawyers  of  the  succeeding  cen- 
turies, made  for  their  permanence  long  after  they  had  lost  their 
meaning.  They  had  become  part  of  a  fixed  system  which,  in  an 
age  of  absolutely  unscrupulous  litigation,  was  as  quick  to  grow  in 
detail  and  intricacy  as  it  was  slow  to  discard  any  of  the  rules  which 
it  had  inherited  from  a  remote  past.     Thus,  owing  to  this  mixture 

1  Vol.  ii  102-117. 
596 


PROCESS  597 

of  new  and  old  ideas,  owing  to  the  training  of  the  common  lawyers, 
and  owing  to  the  litigiousness  of  the  age,  the  rules  of  procedure 
and  pleading  tended,  all  though  this  period,  to  become  more  and 
more  irrational.  No  part  of  the  common  law  was  in  more  urgent 
need  of  reform ;  and  we  shall  see  that  in  the  following  period  it 
was  in  some  respects  reformed  partly  by  the  legislature,  but  chiefly 
by  the  judges,  whose  intelligence  had  been  quickened  by  the  need 
to  compete  with  rival  courts.  But,  as  is  the  case  with  many  other 
branches  of  English  law,  this  reform  was  gradual  and  piece-meal. 
It  proceeded  rather  by  way  of  developing  certain  tendencies  and 
rules,  rather  by  way  of  adapting  certain  new  ideas  as  to  the  con- 
duct of  litigation  civil  and  criminal  to  the  older  scheme,  than  by 
way  of  large  and  far  reaching  changes.  For  this  reason  the  main 
outstanding  principles  and  features  which  had  begun  to  characterize 
this  branch  of  the  law  in  this  mediaeval  period  remained,  and  con- 
tinued to  characterize  it  right  down  to  modern  times.  In  this 
branch  of  the  common  law,  therefore,  this  mediaeval  period  is  quite 
as  important  as  it  is  in  many  another  branch,  because  to  it  we  must 
look  for  some  of  the  most  salient  and  permanent  features  of  our 
modern  system  of  common  law  procedure.  In  this,  as  in  other 
branches  of  the  common  law,  the  combination  of  the  new  rules 
and  ideas  of  the  royal  courts  with  the  substratum  of  primitive 
custom  produced  a  system  which  was  quite  unique. 

This  combination  of  the  new  ideas  which  came  with  the  spread 
of  royal  justice  with  the  older  ideas  of  the  customary  law,  produced 
different  effects  in  the  criminal  and  civil  law.  The  new  system  of 
criminal  procedure,  resting  upon  the  presentment  of  a  grand  jury 
indictment  and  trial  by  petty  jury,  differed  from  the  new  system 
of  civil  procedure  resting  upon  the  original  writ,  process  upon  that 
writ,  and  the  settlement  by  the  pleadings  of  the  parties  of  the 
question  whether  the  point  in  dispute  was  an  issue  of  law  triable 
by  the  court,  or  an  issue  of  fact  triable  by  a  jury.  Therefore  I 
shall  deal  separately  with  the  criminal  and  the  civil  law ;  and 
under  each  head  I  shall  consider,  firstly,  the  history  of  what  was 
perhaps  in  primitive  times  the  most  important  of  all  the  topics  in 
the  law  of  procedure — the  topic  of  process ;  and,  secondly,  the 
history  of  procedure  in  general  and  pleading. 

§  I.   The  Criminal  Law 

Process 

Under  this  head  I  propose  to  deal  with  the  machinery  provided 
by  the  common  law  for  securing  the  appearance  of  a  person  sus- 
pected of  or  charged  with  a  crime.  I  shall  deal  with  the  history 
of  this  subject  under  the  three  following  heads:  (i)  the  arrest  of 


598        PROCEDURE  AND  PLEADING 

persons  not  yet  indicted ;   (2)  the  arrest  of  persons  who  have  been 
indicted ;  and  (3)  process  against  persons  who  seek  to  evade  arrest. 

( I )   The  arrest  of  persons  not  yet  indicted. 

The  legal  machinery  provided  for  this  purpose  has  passed 
through  several  distinct  phases,  all  of  which  have  left  their  traces 
upon  our  modern  law.  There  is  first  of  all  the  primitive  period, 
covering  roughly  the  twelfth,  thirteenth,  and  early  fourteenth 
centuries,  in  which  the  law  relied  on  the  action  of  the  vill  or  town- 
ship, or  on  the  machinery  of  the  frankpledge,  or  on  the  responsi- 
bility of  a  man  for  those  in  his  mainpast.  Secondly,  there  is  the 
period,  covering  roughly  the  fourteenth,  fifteenth,  and  early  six- 
teenth centuries,  when  these  older  institutions  were  decaying,  and 
when  the  law  was  coming  to  rely  rather  on  the  action  of  the 
individual  citizen,  or  on  the  action  of  officials,  such  as  the  sheriff, 
the  coroner,  the  justices  of  the  peace,  and  the  constables.  Thirdly, 
there  is  the  period  covering  roughly  the  latter  part  of  the  sixteenth 
century  onwards,  when  more  reliance  was  being  placed  upon 
official  action,  and  somewhat  larger  powers  were  being  given  to 
officials  than  were  possessed  by  ordinary  citizens. 

(i)  In  the  thirteenth  century,  and  throughout  the  mediaeval 
period,  vills  might  be  made  liable  for  failure  to  arrest  those  who 
had  committed  homicide,  or  for  failure  to  secure  such  persons  if 
they  had  been  arrested  and  escaped  ;  and,  if  the  vill  could  not  pay, 
the  hundred  was  liable.  Similarly  the  tithing  or  the  lord  was 
liable  if  they  or  he  failed  to  secure  a  member  of  the  tithing  or  a 
person  in  his  mainpast  who  had  committed  homicide.^  But  all 
this  primitive  organization  was  going  out  of  use  in  the  fourteenth 
century.  Probably  the  disuse  of  the  General  Eyre  had  something 
to  do  with  it,  as  it  was  in  the  Eyre  that  these  communal  duties 
were  brought  home  to  communities  and  tithings  by  the  process  of 
amercement.^  But  no  doubt  the  main  reason  for  its  disuse  was 
its  cumbersome  character.^  Though  Hale  laments  the  disuse  of 
the  frankpledge  system,  and  the  disappearance  of  the  rules  which 
made  the  lord  liable  for  the  doings  of  those  in  his  mainpast,^  tjhey 
were  in  fact  becoming  unworkable  owing  to  the  changes  which 
were  taking  place  in  the  political,  the  social,  and  the  economic 
ordering  of  the  state.  But  these  old  rules  left  one  permanent 
legacy.     They  presupposed  the  principle  that  all  the  members  of 

iHale,  P.C.  ii  73-75;  vol.  i  13-15,  27,  76-82,  134-137;  cp.  above  371. 

2  Vol.  i  272.  3  Ibid  80-81,  136,  272  n.  3. 

*  *'  This  law  of  amercing  the  decenna  or  him  of  whose  family  an  offender  is,  is 
not  abrogated,  but  yet  it  is  not  now  used ;  but  it  was  certainly  a  most  excellent  con- 
stitution, whereby  every  man  was  under  the  pledge  of  his  master  or  father,  with 
whom  he  lived,  or  must  be  within  some  decenna,  that  may  see  him  forthcoming," 
P.C.ii75. 


PROCESS  599 

the  vill  or  tithing  must  actively  assist  to  arrest  criminals ;  ^  and 
this  rule  was  strengthened  and  emphasized  by  the  common  law 
and  statutory  rules  which  made  it  the  legal  duty  of  all  men  to 
pursue  criminals  when  the  hue  and  cry  had  been  raised.^  Hence 
when  these  old  rules  and  institutions  decayed,  the  law  came  to 
rely  mainly  on  the  rules  which  made  it  the  legal  duty  of  all 
citizens,  and  especially  of  all  officials,  to  be  active  in  the  arrest  of 
criminals. 

(ii)  In  the  thirteenth  century  the  duties  of  the  ordinary  citizen 
in  the  matter  of  the  arrest  of  criminals  were  not  very  precisely 
defined.  ''The  main  rule,"  says  Maitland,^  "we  think  to  be  this, 
that  felons  ought  to  be  summarily  arrested  and  put  in  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  one  leaves  oneself  open  to  an  action,  or  even  an  appeal  of 
false  imprisonment  if  one  takes  as  a  felon  a  man  who  has  done  no 
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."  On  the  other  hand,  the  sheriff  and  other  officers  probably 
had  larger  powers  to  arrest  suspected  felons  ;  *  and  it  would  seem 
that  even  the  ordinary  man  could  and  indeed  was  bound  to  arrest 
on  suspicion  when  the  hue  and  cry  had  been  raised.  This  was 
probably  the  law  in  the  earlier  half  of  the  fourteenth  century,^  and 
was  certainly  the  law  of  the  fifteenth  century.®  ''And,  therefore," 
as  Hale  says,^  "the  justification  of  an  imprisonment  of  a  person 
upon  suspicion,  and  of  a  person,  especially  a  constable,  upon  hue 
and  cry  levied  do  extremely  differ,  for  in  the  former  there  must  be 
a  felony  averred  to  be  done,  and  it  is  issuable ;  but  in  the  latter, 
viz.  upon  hue  and  cry  it  need  not  be  averred,  but  the  hue  and  cry 
levied  upon  information  of  a  felony  is  sufficient,  though  perchance 
the  information  was  false."  In  these  rules  we  may  perhaps  see 
the  remote  origins  of  the  rule  which  gives  a  constable  larger 
powers  of  arrest  than  the  private  citizen.^ 

.  All  through  the  mediaeval  period  the  vague  rules  with  which 
the   law  started  were   being  reduced   to  greater  precision — very 

1  P.C.  ii  75. 

2  Vol.  i  68 ;  Hale,  P.C.  ii  98-100,  and  refe^rences  there  cited. 

3  P.  and  M.  ii  580-581.  •»  Ibid  581. 
"Y.B.  7  Ed.  III.  Pasch.  pi.  15. 

6  Y.BB.  5  Hy.  VII.  Mich.  pi.  10  (p.  5)  where  Brian.  C.J.,  attributes  this  effect  of 
raising  the  hue  and  cry  to  the  Statute  of  Westminster  I.  c.  9  and  the  Statute  of 
Winchester ;  21  Hy.  VIl.  Trin.  pi.  5  (p.  28)  where  Rede,  J.,  says,  "ou  on  justifie  la 
prisel  dun  home  pur  suspicion  de  felony,  il  covient  qu'il  ait  bon  cause  de  suspicion 
.  .  .  comme  hue  and  cry^  c'est  bon  cause;  et  si  le  cry  soit  fait  sur  rien,  donque 
cestuy  que  ce  leva  sera  puni." 

7  P,C,  ii  loi,  8  Below  603-604, 


600         PROCEDURE  AND  PLEADING 

largely  through  the  medium  of  proceedings  for  false  imprisonment 
brought  by  persons  arrested  against  their  captors.  In  the  first 
place,  it  was  agreed  that  if  a  man  knew  that  a  felony  had  been 
committed,^  or  even  if  he  knew  that  a  trespass  had  been  committed 
which  might  lead  to  a  felony,^  he  not  only  could,  but  was  bound 
to  arrest ;  and  in  such  a  case  if  he  killed  a  felon  who  resisted  the 
homicide  was  justifiable.^  In  the  second  place,  if  a  party  suspected 
that  a  felony  had  been  committed,  though  he  was  not  bound  to 
arrest,^  he  could  lawfully  arrest  if  he  had  good  grounds  for  his 
suspicion  ;  ^  but  he  could  not  justify  the  breaking  open  of  doors  to 
effect  the  arrest  unless  it  turned  out  that  the  person  arrested  had 
in  fact  committed  felony.^  The  fact  that  the  hue  and  cry  had  been 
raised  was  always  a  good  cause  for  suspicion  ;  ^  but,  unless  a  felony 
had  in  fact  been  committed,  common  report  was  not  a  sufficient 
justification  ;  ^  and  in  such  a  case  the  mere  fact  that  the  arrest  was 
made  by  the  command  of  an  official  was  no  justification,  as  the 
official  himself  was  not  justified  in  arresting  in  such  a  case.^ 

It  would  seem  from  this  last  rule  that  in  the  Middle  Ages  the 
powers  of  officials  to  arrest  suspected  persons  were  not  very  much 
greater  than  those  of  private  citizens. ^*^  It  is  true  that  the  constable 
had  by  statute  or  common  law  certain  powers  to  arrest  on  suspicion, 
or  to  prevent  breaches  of  the  peace,  or  to  stop  immoral  conduct, 
which  private  citizens  had  not  got.^^  But  in  other  respects  his 
powers  were  very  much  the  same  as  those  of  an  ordinary  citizen. 
Brian,  CJ.,  and  Haugh,  J.,  held  that  if  A  suspected  B  of  having 
committed  a  felony,  and  asked  a  constable  to  help  him  to  arrest 
B,  and  the  constable  did  so,  the  constable  acted  unlawfully,  because 
he  himself  did  not  suspect  B.^^  Townsend,  J.,  differed  from  Brian, 
and  Keble  and  Vavisour  were  of  his  opinion ;  and  their  opinion 
prevailed.  ^^  But  it  was  only  if  the  constable  on  A's  information 
suspected  B,  and  A  was  present  at  the  arrest,  that  the  arrest  was 

1  Y.B.  lo  Ed.  IV.  Mich.  pi.  20. 

2  22  Ass.  pi.  56;  cp.  7  Ed.  III.  Pasch.  pi.  15;  Hale,  P.C.  ii  77. 
2  22  Ass.  pi.  55. 

^  "  Nul  est  lye  per  le  Ley  arrester  auter,  sinon  que  il  veist  le  cause  loial,"  Y.B. 
2  Hy.  VII.  Pasch.  pi.  i  (p.  16)  per  Brian,  C.J. ;  cp.  Hale,  P.C.  ii  82. 

5  Y.BB,  II  Ed.  IV.  Trin.  pi.  8  per  Choke,  J.,  and  Brian,  C.J.  ;  5  Hy.  VII.  Mich, 
pi.  10. 

«  Hale,  P.C.  ii  82 ;  see  Y.B.  13  Ed.  IV.  Pasch.  pi.  4  (p.  9)  per  Choke,  J. 

7  Y.BB.  cited  n.  5. 

^  Y.B.  5  Hy.  VII.  Mich.  pi.  10  at  p.  5  ;  and  per  Brian,  C.J.,  a  common  report 
in  the  county  where  the  felony  was  committed  might  not  be  a  good  cause  for 
suspicion  which  would  justify  an  arrest  in  another  county,  Y.B.  11  Ed.  IV.  Trin. 
pi.  8 — a  captious  distinction  which  made  for  the  inefficiency  of  the  law. 

9  Y.BB.  II  Ed.  IV.  Trin.  pi.  8  per  Piggot;  2  Hy.  VII.  Pasch.  pi.  i  (p.  16)  per 
Brian,  C.J. ;  5  Hy.  VII.  Mich.  pi.  10. 

10  •*  Jeo  di  que  nul  poit  arrester,  I'officier  le  Roy  ne  auter,  pur  suspicion  de  felony, 
sinon  ceux  qui  ont  le  suspicion,"  Y.B.  2  Hy.  VII.  Pasch.pl.  i  (p.  16) per  Brian,  C.J. 

1^  Hale,  P.C.  ii  88-90,  and  the  authorities  there  cited. 

^2  Above  n.  10.  ^^H^le,  P.C.  ii  91-92, 


PROCESS  601 

legal. ^  It  would  seem,  however,  that,  at  the  beginning  of  the 
sixteenth  century,  the  courts  were  beginning  to  think  that  the 
powers  of  officials  ought  to  be  somewhat  more  liberally  construed. 
In  1499'"^  it  was  strenuously  argued  that  when  the  servants  of  a 
justice  of  the  peace  pleaded,  in  answer  to  an  action  for  false  im- 
prisonment, that  the  justice  came  to  quell  a  riot,  and  that,  with  this 
object,  he  had  ordered  his  servants  to  arrest  certain  persons,  and 
that  this  was  the  imprisonment  complained  of,  the  justification  was 
bad.  The  justice,  it  was  said,  could  only  order  an  arrest  by 
written  precepts  which  the  officer  effecting  the  arrest  must  show 
to  the  person  arrested.  But  the  court,  Fineux,  C.J.,  and  Rede 
and  Tremaine,  JJ.,  rejected  this  view  of  the  law,  and  held  that  a 
justice  of  the  peace  could  verbally  command  an  arrest  to  be  made 
in  such  a  case,  though  it  was  admitted  that  the  law  was  otherwise 
if  the  riot  was  not  in  the  view  of  the  justice. 

But  it  is  clear  that  all  through  the  sixteenth  century  the 
question  of  the  powers  of  officials  to  effect  arrests  was  very  doubt- 
ful. In  1523  the  court  was  clear  that  a  justice  of  the  peace  could 
not  issue  a  warrant  for  the  arrest  of  a  criminal  who  was  not  in- 
dicted, unless  he  himself  suspected  him;  and  it  was  doubtful 
whether  the  bailiff  who  acted  on  such  a  warrant  escaped  liability.^ 
In  161 2  in  Sir  Anthony  Ashley's  Case "^  and  in  his  Fourth  In- 
stitute ^  Coke  in  substance  repeated  the  mediaeval  law.  It  is  only 
if  a  felony  be  actually  committed  that  an  arrest  can  be  made  on 
suspicion,  and  then  only  by  the  party  who  suspects.  It  follows, 
therefore,  that  a  command  to  arrest  given  to  a  person  who  does 
not  suspect  will  not  justify  an  arrest  by  the  latter.  It  follows 
further  that  a  warrant  to  arrest  issued  on  the  application  of  a 
person  who  suspects  by  a  justice  of  the  peace  who  does  not  him- 
self suspect,  is  invalid.  Though,  historically,  it  is  probable  that 
Coke's  law  was  right,  it  was  not  in  harmony  either  with  the  new 
ideas  as  to  the  powers  and  duties  of  magistrates,  or  with  the  new 
machinery  for  the  keeping  of  the  peace,  which  were  arising  in  the 
sixteenth  and  seventeenth  centuries.^  Hence,  in  the  latter  half  of 
the  seventeenth  century,  the  law  begins  to  emphasize  the  distinction 
between  the  powers  of  officials  and  the  powers  of  private  citizens, 
and  to  give  larger  powers  to  officials. 

(iii)  By  the  latter  part  of  the  sixteenth  century  the  conduct  of 
the  local  government  of  the  country  had  definitely  passed  from  the 
old  communities  of  township,  hundred,  and  shire,  to  the  justices  of 
the  peace  assisted  by  the  sheriffs,  coroners,  and  constables.^     We 

1  Hale,  P.C.  ii  91-92.  2  Y.B.  14  Hy.  VII.  Mich.  pi.  19 

3  Y.B.  14  Hy.  VIII.  Hil.  pi.  3.  "  12  Co.  Rep.  at  p.  92. 

5  At  p.  177;  vol.  i  294-295. 

"See  Hale,  P.C.  ii  107- no,  cited  vol.  i  295. 

7  Vol.  i288;  Bk.;.iv  Ft.  I.  c.  i, 


602        PROCEDURE  AND  PLEADING 

have  seen  that  statutes  of  Philip  and  Mary's  reign  had  enlarged 
the  powers  of  the  justices  of  the  peace  to  arrest  and  examine 
persons  charged  with  felony ;  and  that  the  justices  were  beginning 
to  make  a  practice  of  issuing  warrants  to  arrest  persons  suspected 
by  others.^  We  have  seen,  too,  that,  though  this  practice  was 
contrary  to  the  old  law  and  was  disapproved  by  Coke,  it  was  de- 
fended by  Hale,  and  came  to  be  regarded  as  perfectly  legal  at  the 
end  of  the  seventeenth  century.^  Similarly,  it  is  quite  clear  from 
Hale  that  the  powers  of  constables  and  other  officers  entrusted 
with  the  conservation  of  the  peace  was  growing.  Coke  laid  it 
down  that  if  ministers  of  justice  were  killed  in  the  execution  of 
their  office,  even  though  they  were  acting  under  process  which 
was  erroneous,^  their  killing  was  murder.  They  were  the  king's 
ministers,  and  ''reason  requires  that  this  killing  and  slaying  shall 
be  an  offence  in  the  highest  degree."*  Hale  emphasized  their 
powers ;  and,  though  he  does  not,  and  could  not,  deny  the  rules 
established  by  the  older  authorities  as  to  the  powers  of  private 
persons  to  arrest,  he  is  inclined  to  contrast  the  powers  of  officials 
with  those  of  the  private  person,  and  to  insist  upon  the  greater  re- 
sponsibility of  the  former  for  the  conservation  of  the  peace,  and 
the  greater  protection  which  the  law  gave  them.  "  These,"  he 
says,^  ''are  under  a  greater  protection  of  the  law  in  execution  of 
this  part  of  their  office  upon  these  two  accounts  :  I.  Because  they 
are  persons  more  eminently  trusted  by  the  law,  as  in  many  other 
acts  incident  to  their  office,  so  in  this.  2.  Because  that  they  are 
by  law  punishable,  if  they  neglect  their  duty  in  it.  .  .  .  And 
hence  it  is,  that  these  officers,  that  are  thus  intrusted,  may  without 
any  other  warrant  but  from  themselves  arrest  felons,  and  those 
that  are  probably  suspected  of  felonies ;  and  if  they  be  assaulted 
and  killed  in  the  execution  of  their  office  it  is  murder ;  and  on  the 
other  side,  if  persons  that  are  pursued  by  these  officers  for  felony 
or  the  just  suspicion  thereof,  nay  for  breach  of  the  peace  or  just 
suspicion  thereof,  as  night-walkers,  persons  unduly  armed,  shall 
not  yield  themselves  to  these  officers,  but  shall  either  resist  or  fly 
before  they  are  apprehended,  or  being  apprehended  shall  rescue 
themselves  and  resist  or  fly,  so  that  they  cannot  be  otherwise 
apprehended,  and  are  upon  necessity  slain  therein,  because  they 
cannot  be  otherwise  taken,  it  is  no  felony  in  these  officers  or  their 
assistants,  that  upon  inevitable  necessity  kill  them,  though  possibly 

1  Vol.  i  294-296.  2  Ibid. 

^E.g.  if  a  capias  issued  instead  of  a  distringas,  Hale,  P.C.  i  457;  but  if  the 
process  were  defective,  or  issued  without  jurisdiction,  or  unlawful  force  were  used, 
the  killing  would  be  manslaughter,  see  Hale,  P.C.  i  458 ;  Foster,  Crown  Law  312. 

4  Mackalley's  Case  (1612)  9  Co.  Rep.  at  f.  68b;  cf.  Young's  Case  (1585)  4  Co. 
Rep.  at  ff.  40b,  41a. 

«  P.C,  ii  85-86, 


PROCESS  603 

the  parties  killed  are  innocent,  for  by  their  resistance  against  the 
authority  of  the  king  in  his  ofificers  they  draw  their  own  blood 
upon  themselves." 

It  is  in  this  changed  view  of  the  powers  of  officials  to  arrest 
that  we  can  see  the  origin  of  the  modern  rules  that,  whereas  a 
private  person  may  only  arrest  for  felony  or  suspicion  of  felony, 
a  constable  may  arrest  anyone  who  in  his  presence  commits  a  mere 
breach  of  the  peace ;  and  whereas  a  private  person  can  only  arrest 
on  suspicion  if  the  felony  has  actually  taken  place,  the  constable 
can  arrest  on  suspicion  whether  it  has  taken  place  or  not.^  It  is 
probable  that  rules  expressed  in  this  form  would  not  have  been 
recognized  in  the  Middle  Ages.  There  was,  it  is  true,  just  suffici- 
ent authority  in  the  older  cases  to  justify  the  rule  that  a  constable 
could  arrest  in  other  cases  besides  cases  when  a  felony  had  been 
committed  or  was  suspected.^  On  the  other  hand,  there  was  little 
or  no  authority  to  justify  the  rule  that  a  constable  who  arrested 
on  suspicion  was  protected,  even  though  no  felony  had  actually 
been  committed.^  But  I  think  that  it  is  probable  that  the  modern 
rule  was  arrived  at  partly  by  a  generalization  from  the  older 
statutes  which  gave  extended  powers  to  sheriffs,  bailiffs,  and 
others ;  *  but  chiefly  by  a  new  application  of  the  rules  as  to  what 
could  be  done  when  the  hue  and  cry  was  raised.  We  have  seen 
that  if  the  hue  and  cry  had  been  raised,  an  arrest  on  suspicion  was 
justifiable,  whether  the  crime  had  been  committed  or  not.^  Now 
we  shall  see  that  in  the  seventeenth  century  it  was  the  constables 
of  the  townships  and  hundreds  who  in  effect  exercised  the  powers 
formerly  entrusted  to  these  communities.^  They,  therefore,  as 
Hale's  statement  cited  above  shows,  ^  were  the  persons  whose 
special  duty  it  was  to  raise  the  hue  and  cry ;  and,  if  they  raised  the 
hue  and  cry,  an  arrest  on  suspicion,  even  though  no  crime  had 
been  committed,  was  justifiable  according  to  the  older  authorities. 
We  shall  see  that  they  were  generally  the  appointees  of  the  justices, 
and  acted  on  their  instructions.^  Thus  a  hue  and  cry  was  generally 
raised  by  them  in  pursuance  of  a  justice's  warrant — so  generally 
that  the  phrase  ''  to  grant  a  hue  and  cry  "  was  used  to  signify  the 
issue  of  a  warrant.^  It  can  easily  be  seen  therefore  that  a  constable 
to  whom  a  *'  hue  and  cry  had  been  granted  "  had  the  power  to  arrest 
whether  or  not  a  crime  had  been  committed.  ^^     When  the  origin 

1  Kenny,  Criminal  Law  444-445. 

2  Above  599-600.  ^  Above  601. 
*See  Hale,  P.C.  ii  87,  citing  Stat.  West.  I.  c.  9. 

^  Above  599.  ^  Bk.  iv  Pt.  I.  c.  i. 

''  Above  599.  ^  Bk.  iv  Pt.  I.  c.  i. 

^  Vol.  i  295. 

^*'  Note  that  Kenny,  Criminal  Law  441  n.  4,  points  out  that  the  raising  of  the 
hue  and  cry  "gave  the  same  powers  of  arrest  to  all  taking  part  in  it  as  a  written 
warrant  now-a-days  would," 


604         PROCEDURE  AND  PLEADING 

of  his  power  SO  to  arrest  had  dropped  out  of  sight,  it  was  inevitable 
that  this  power  should  be  supposed  to  be  inherent  in  his  office. 
As  we  shall  now  see  the  attainment  of  this  result  was  assisted  by 
some  of  the  rules  which  governed  the  arrest  of  persons  who  had 
been  indicted. 

(2)  The  arrest  of  persons  who  have  been  indicted. 

From  the  earliest  time  it  was  the  duty  of  the  sheriff  and  other 
officials  entrusted  with  the  conservation  of  the  peace  to  arrest 
those  who  had  been  indicted.^  It  was  the  duty  of  all  to  help  in 
the  arrest  if  called  upon,  so  that  those  who  acted  under  these 
instructions  were  protected.  In  Edward  III.'s  reign  Thorpe,  J., 
ruled  that  the  killing  of  a  person  indicted,  who  was  forcibly 
resisting  arrest  by  one  who  had  a  sheriff's  warrant  for  his  arrest, 
was  a  case  of  justifiable  homicide.^  A  person  indicted  for  homicide 
under  these  circumstances,  he  said,  needed  no  pardon,  but  was  en- 
titled to  be  acquitted.^  This  power  of  the  sheriffs  and  other  officers 
to  arrest  a  person  indicted,  and  the  immunity  from  liability  of 
those  who  killed  such  a  person  when  he  could  not  otherwise  be 
taken,  were  recognized  as  good  law  by  Coke,^  and  are  part  of  our 
modern  law.^  It  should  be  observed  also  that  Coke,  when  laying 
down  this  rule,  takes  occasion  to  note  that  the  act  of  the  sheriff 
who  arrests  under  a  writ  of  capias,  unlike  the  act  of  a  private 
person  who  has  no  special  warrant,  is  justifiable,  though  no  felony 
had  been  committed.®  When  in  the  seventeenth  century  arrests 
were  usually  effected  by  constables  acting  under  a  justice's  warrant 
this  principle  was  easily  extended  to  them.'' 

(3)  Process  against  persons  who  seek  to  evade  arrest. 

From  very  early  times  persons  appealed  or  indicted  of  treason 
or  felony  could  be  outlawed  if  they  evaded  capture  and  refused  to 
surrender.^  A  person  thus  appealed  or  indicted  must  be  exacted, 
i.e.  asked  for  or  demanded,  in  five  successive  county  courts.^     At 

1  P.  and  M.  ii  581.  2  22  Ass.  pi.  55. 

^  '•  Je  vous  dis  bien  quant  home  occist  auter  par  garrant,  il  peut  bien  avower  le 
fait,  et  nous  luy  acquittons  nettement  sans  attender  la  grace  le  Roy  per  sa  charter 
en  ce  cas." 

4  Third  Instit.  56;  and  see  Fourth  Instit.  177  ;  Hale,  P.C.  i  481. 

^  Kenny,  Criminal  Law  443. 

^**  There  is  a  diversity  between  a  warrant  in  deed  and  a  warrant  in  law,  in  this, 
that  if  a  man  be  indicated  of  murder,  robbery,  burglary,  or  other  felony,  and  the 
sheriff  by  virtue  of  a  capias  offer  to  arrest  him,  and  he  resisteth  and  fly,  the  sheriff 
may  kill  him  if  otherwise  he  cannot  arrest  him,  although  in  truth  the  party  be  not 
guilty,  nor  any  felony  done.  But  in  the  case  of  the  above  said  warrant  in  law  there 
must  be  a  felony  done,"  Third  Instit.  221. 

7  Hale,  P.C.  ii  77,  91,  118.  ^  Vol.  ii  105. 

*  P.  and  M.  ii  579 — the  number  differs  "  for  we  may  or  may  not  count  what 
happens  at  the  first  or  what  happens  at  the  last  court  as  an  exaction,"  ibid  n.  2 ; 
generally  one  writ  of  capias  issued,  and  then  the  process  of  exacting  began,  22  Asg, 
pi.  81 ;  Y.BB.  I  Hy.  VI.  Pasch.  pi.  8  (p.  6);  8  Hy.  V.  Hil.  pi.  25, 


PROCESS  605 

the  end  of  that  time  he  was  outlawed.  The  effect  was  that  he 
was  put  outside  the  king's  peace  and  protection,^  and  could 
probably  till  1329,^  be  slain  by  anyone.  His  goods  and  chattels 
were  forfeited  when  the  first  exigent  (i.e.  when  direction  to  "  exact  " 
in  pursuance  of  a  writ  of  capias)  was  awarded,^  and  when  he  was 
finally  outlawed,  his  land  escheated.^  If  he  was  caught,  he  could 
be  hung  without  trial.  ^  We  have  seen  that  English  law  has  always 
refused  to  try  a  man  in  his  absence.*^  The  survival  of  this  primitive 
rule  is  probably  due  to  the  fact  that  in  cases  of  treason  or  felony 
such  a  power  was  hardly  necessary,  for  the  law  has  always  had  the 
power  to  punish  him  in  his  absence  by  forfeiture,  and  to  treat  him 
as  if  he  were  condemned  if  he  could  he  captured. 

The  weapon  of  outlawry  was,  as  Maitland  has  said,  ''as 
clumsy  as  it  was  terrible."  "^  Even  in  the  thirteenth  century  there 
were  many  cases  in  which  a  person  might  be  outlawed  without 
ever  having  heard  of  the  proceedings.  **  There  was  therefore 
great  need  for  royal  writs  in-lawing  an  outlaw  and  many  were 
issued ;  but  no  strict  line  could  here  be  drawn  between  acts  of 
justice  and  acts  of  grace."  ^  Conversely,  in  later  law,  there  were 
many  cases  in  which  the  proceedings  to  outlaw  a  criminal  might 
fail  of  effect  by  reason  of  small  mistakes  in  the  wording  of  the 
return  of  outlawry. 

In  Hale's  day  there  was  much  law  on  both  these  points.  Let 
us  take  the  second  point  first.  The  absolute  verbal  accuracy 
required  in  the  return  of  an  outlawry  was  only  paralleled  by  the 
verbal  accuracy  required  in  an  indictment.^  Thus,  "  if  the  day  and 
year  of  the  king  be  inserted  in  the  i,  2,  3  and  5  exactus,  but 
omitted  in  the  4th  exactus,  it  is  erroneous."  ^^ 

The  cases  in  which  the  outlaw  could  get  his  outlawry  reversed 
by  writ  of  error  had  become  fairly  well  settled  by  the  seventeenth 
century.  The  person  outlawed  could  show  that  he  was  not  the 
person  intended  to  be  outlawed,  but  someone  else  of  the  same 
name ;  ^^  or  that  he  was  under  fourteen  years  of  age ;  ^^  or  that  he 
was  imprisoned  or  beyond  the  sea  at  the  time  of  his  outlawry. ^^ 

1  p.  and  M.  ii  447. 

2  •'  In  the  beginning  of  the  reign  of  King  Ed.  III.  it  was  resolved  by  the  judges, 
for  avoiding  of  inhumanity,  and  of  effusion  of  Christian  blood,  that  it  should  not  be 
lawful  for  any  man,  but  the  sheriff  only  (having  lawful  warrant  therefore)  to  put  to 
death  any  man  outlawed  though  it  were  for  felony,  and  if  he  did,  he  should  undergo 
such  punishment  and  pains  of  death  as  if  he  had  killed  any  other  man,"  Co.  Litt. 
128b,  citing  Y.B.  2  Ed.  III.  Hil.  pi.  17  =  Fitz.,  Ab.  Corone  pi.  148. 

3  Hale,  P.C.  ii  204,  citing  41  Ass.  13.  '•Above  69. 

"5  Hale,  P.C.  ii  205.  «  Vol.  ii  105. 

7  P.  and  M.  ii  579.  ^  Ibid  ii  579-58o. 

»  Below  617-618.  ^"  Hale,  P.C.  ii  203. 

11  Ibid  ii  207  ;  there  was  a  special  writ — De  Idemptitate  Nominis — for  this  pur- 
pose, F.N.B.  268  B. 

12  Hale.  P.C.  ii  208.  13  Ibid. 


606         PROCEDURE  AND  PLEADING 

The  last  cause  for  reversal  had  given  rise  to  a  good  many  fine 
distinctions  which  Hale  summarizes;  and,  owing  to  the  statute 
of  1557-1558  which  required  two  witnesses  to  substantiate  a 
charge  of  treason,^  it  could  be  used  to  escape  liability.  It  was 
possible  that  persons  indicted  for  treason  might  go  abroad,  and, 
when  they  thought  that  the  witnesses  against  them  were  dead  or 
safely  out  of  reach,  they  might  return,  and  get  their  outlawries 
reversed  on  the  ground  that  they  had  been  beyond  the  seas  when 
sentence  of  outlawry  had  been  pronounced.^  To  obviate  this 
danger  it  was  enacted  by  the  same  statute  of  15 57-1 558  that 
outlawries  for  treason  should  not  be  reversed  on  this  ground,  un- 
less the  person  outlawed  surrendered  within  a  year  to  the  chief 
justice  of  the  king's  bench.  If  he  surrendered  within  the  year 
he  was  allowed  to  traverse  the  indictment,  and,  if  on  his  trial  he 
were  acquitted,  his  outlawry  was  discharged.^  A  very  strict 
construction  of  this  statute  (which  was  disapproved  by  Parliament 
after  the  Revolution  ^  and  not  followed)  ^  was  put  upon  this 
statute  in  Armstrong's  Case  in  1684.'^  It  was  held  that  an  out- 
law who  had  been  captured  abroad  and  taken  to  England  could 
not  take  any  benefit  from  it  because  he  could  not  be  said  to  have 
surrendered. 

Some  of  the  defects  of  the  process  of  outlawry  were  remedied 
in  these  ways ;  and,  as  thus  improved,  it  became  a  process  which 
is  as  important  in  the  civil  as  in  the  criminal  law.  As  early  as 
Bracton's  day  it  was  being  extended  to  trespass  in  a  modified 
form — not  involving  sentence  of  death,  but  only  a  forfeiture  of 
goods  and  chattels.^  There  was  to  be  a  major  and  a  minor  out- 
lawry just  as  there  was  a  major  and  a  minor  excommunication.^ 
This  extension  of  the  process  of  outlawry  to  trespass  was  a  principal 
cause  both  for  the  spread  of  this  action,  and  for  the  extension  of 
the  process  of  outlawry  to  other  personal  actions.^  The  futility  of 
the  mesne  process  in  many  of  the  older  civil  actions  real  and 
personal  made  both  for  the  decay  of  the  real  actions,  and  the  ex- 

I5,  6  Edward  VI.  c.  11  §  9. 

2  See  Hawle's  remarks  on  Armstrong's  Case  10  S.T.  123. 

3  5,  6  Edward  VI.  c.  u  §  5.  "*  10  S.T.  ii6-iig. 
°  R.  V.  Johnson  (1729)  Foster,  Crown  Law  46. 

6 10  S.T.  105. 

'  ••  Quia  nullum  majus  crimen  quam  contemptus  et  inobedientia  .  .  .  et  cum 
vocati  vel  summoniti  per  regem  venire  contempserint,  faciunt  se  ipsos  exleges,  et 
ideo  utlagari  deberent,  non  tamen  ad  mortuum  vel  membrorum  truncationem,  si 
postea  redierint  vel  intercept!  fuerint  cum  causa  utlagationis  criminalis  non  existat, 
sed  ad  perpetuam  prisonam  vel  regni  abjurationem,  et  a  communione  omnium 
aliorum  qui  sunt  ad  pacem  domini  regis,"  Bracton  f.  441a ;  for  the  later  law  see  Co. 
Litt.  128b  ;  Bl.  Comm.  iii  284. 

^'•Et  sicut  causa  excommunicationis  facit  excommunicationem  minorem  et 
poenam,  ita  causa  utlagationis  facit  utlagationem  esse  minorem  et  poenam.  .  .  . 
Excommunicatio  enim  et  utlagatio  in  multis  ad  paria  judicantur,"  Bracton  f.  441a. 

^  Below  626-627. 


PROCEDURE  AND  PLEADING         607 

tension  of  outlawry  to  some  of  the  older  personal  actions.  We 
shall  better  appreciate  the  reasons  why  outlawry  was  thus  ex- 
tended beyond  the  sphere  of  the  criminal  law  when  we  have 
examined  the  nature  of  the  mesne  process  in  these  civil  actions.^ 
But  before  I  can  deal  with  this  topic  I  must  give  some  account  of 
the  history  of  procedure  and  pleading  in  criminal  cases. 

Procedure  and  Pleading 

We  have  seen  that  in  the  period  before  the  Norman  Conquest 
there  was  no  true  criminal  procedure ;  ^  but  that,  in  the  course  of 
the  two  centuries  which  succeeded  the  Conquest,  the  adaptation  of 
the  jury  system  to  the  repression  of  crime  produced  such  a  pro- 
cedure.^ From  the  end  of  the  thirteenth  century  onwards  the 
normal  course  of  the  procedure  in  a  criminal  case  has  been  pre- 
sentment by  the  grand  jury,  indictment,  and  trial  by  the  petty 
jury.  It  would  not  of  course  be  true  to  say  that  it  is  the  only 
procedure  known  to  be  law.  Long  after  the  new  procedure  was 
established  the  summary  procedure  against  a  criminal  caught  in 
the  act,^  and  the  old  criminal  procedure  of  the  appeal  lived  on.^ 
In  the  fourteenth  century  the  Parliamentary  impeachment  arose  ;  ^ 
and  in  the  sixteenth  century  the  summary  jurisdiction  of  the 
justices  of  the  peace,^  and  the  procedure  by  way  of  information,* 
created  new  and  different  methods  of  procedure.  For  all  that  it 
is  true  to  say  that  the  procedure  of  presentment,  indictment,  and 
trial  by  petty  jury  became  the  normal  method  of  procedure,  and 
that,  for  this  reason,  it  has  had  a  principal  share  in  forming  the 
quite  unique  conception  of  a  criminal  trial  which  the  common  law 
has  evolved. 

In  relating  the  mediaeval  history  of  this  subject  I  shall,  in  the 
first  place,  say  a  few  words  about  the  older  forms  of  criminal  pro- 
cedure which  were  being  displaced  by  the  procedure  by  way  of 
indictment,  and  of  certain  exceptional  forms  which  emerged  during 
this  period ;  in  the  second  place,  I  shall  speak  of  the  normal  pro- 
cedure of  indictment  and  trial  by  petty  jury;  and  in  the  third 
place,  1  shall  give  some  account  of  the  manner  in  which  the 
English  conception  of  a  criminal  trial  was  beginning  to  differ  from 
the  continental  conception. 

(i)  The  older  and  other  exceptional  forms  of  criminal  pro- 
cedure. 

(i)  The  two  older  forms  of  criminal  procedure  were  {a)  the 
summary  process  against  the  criminal  who  was  caught  with  the 

1  Below  624-625.  ^  Vol.  ii  108-110. 

3  Ibid  198-199,  257,  360.  4  Ibid  102,  258  ;  below  608. 

^  Vol.  ii  361-364.  ^  Vol.  i  379-381. 

'  Ibid  293.  ^  Bk.  iv.  Pt.  II.  c.  7  §  2. 


608        PROCEDURE  AND  PLEADING 

mainour,  i.e.  with  the  stolen  goods  or  other  evidence  of  his  guilt 
upon  him ;  and  (b)  the  procedure  by  way  of  appeal. 

(a)  Of  the  procedure  followed  in  the  case  where  a  criminal 
was  taken  with  the  mainour  I  have  already  spoken.^  We  have 
seen  that  in  such  a  case  he  could,  without  more  ado,  be  arraigned, 
condemned,  and  executed  without  being  allowed  to  say  a  word  in 
his  defence;  and  that,  in  the  thirteenth  century,  this  summary 
procedure  was  "  ridding  England  of  more  malefactors  than  the 
king's  courts  can  hang."  ^  As  late  as  the  beginning  of  the  four- 
teenth century  it  was  held  that  a  person  taken  with  the  mainour 
or  other  apparent  evidence  of  guilt  upon  him  could  be  put  on  his 
trial  without  any  preliminary  presentment  or  indictment.^  But 
it  would  seem  that  the  older  procedure  was  being  modified,  as  the 
criminal  would  be  tried  by  a  jury,  and  would  therefore,  presumably, 
be  allowed  to  defend  himself.*  Even  this  modified  form  of  the 
old  procedure  fell  out  of  use  in  the  common  law  courts  later  in  the 
fourteenth  century.  Hale  supposes  ^  that  it  became  legally  im- 
possible as  the  result  of  the  statutes  of  Edward  III.'s  reign,  which 
in  effect  enacted  that  persons  should  not  be  imprisoned  unless  on 
an  indictment  or  on  presentment,  or  without  being  put  to  answer 
by  due  process  of  law.®  This  may  well  have  been  the  effect 
attributed  to  those  statutes  by  the  courts,  as  they  were  probably 
ready  to  discountenance  so  barbaric  a  procedure.  But  it  may  be 
doubted  whether  this  construction  was  correct.  The  statutes  were 
passed  primarily  to  restrict  the  encroachments  of  the  jurisdiction 
of  the  council ;  '^  and,  as  a  matter  of  history,  this  barbaric  procedure 
was  as  much  a  part  of  the  due  process  of  the  common  law  as  the 
normal  procedure  of  presentment  and  indictment. 

(Jf)  The  procedure  by  way  of  appeal  was  in  substance  the 
criminal  procedure  of  the  Anglo-Saxon  period.  We  have  seen 
that  in  spite  of  the  discouragement  of  the  royal  courts,^  and  in 
spite  of  the  greater  advantages  afforded  by  the  action  of  trespass,® 
it  lingered  on  all  through  this  period,  and  later ;  and  that  it 
emerged  for  the  last  time  in  1819.^^  It  could  in  most  cases 
begun  by  any  private  person,  or  by  an  approver.  The  approve 
was  the  king's  evidence  of  mediaeval  law.^-^  He  was  a  person  whc 
confessed  his  guilt,  and,  as  a  condition  of  obtaining  a  pardoi 
offered  to  appeal  and  convict  a  certain  number  of  other  criminals 

1  Vol.  ii  102.  2  p,  and  M.  ii  577. 

8  Hale,  P.C.  ii  156,  citing  cases  of  2  and  10  Ed.  II. 
*  Ibid ;  P.  and  M.  ii  577.  »  P.C.  ii  149.* 

^  25  Edward  III.  st.  5  c.  4 ;  28  Edward  III.  c.  3  ;  42  Edward  III.  c.  3. 
7  Vol.  i  487.  8  Vol.  ii  198,  256,  360. 

^  Ibid  365.  ^^  Vol.  i  310 ;  vol.  ii  364. 

^1  P.  and  M.  ii  631 — "a  convicted  criminal  who  had  obtained  a  pardon  con-^ 
ditional  on  ridding  the  world  of  some  half  dozen  of  his  associates  by  his  appeals." 


PROCEDURE  AND  PLEADING  609 

The  admission  of  an  approver's  appeals  was  always  in  the  absolute 
discretion  of  the  court  ;^  and  the  conditions  under  which  they  would 
be  admitted  became  the  centre  of  a  mass  of  technical  learning.^ 
But  the  admission  of  such  appeals  was  open  to  obvious  abuses.^ 
The  institution  was  decadent  at  the  close  of  the  mediaeval  period, 
and  does  not  appear  to  have  survived  it.  When  Hale  wrote  it 
had  **  been  long  disused."  ^ 

We  have  seen  that  in  the  thirteenth  century  the  king's  judges 
were  in  the  habit,  if  a  plaintiff  in  an  appeal  was  non-suited,  or 
died,  or  released  the  appeal,  of  arraigning  the  defendant  at  the 
suit  of  the  king.^  This  gave  rise,  as  Hale  points  out,^  to  a  dis- 
tinct class  of  cases  in  which  a  proceeding  for  felony  could  be 
initiated  without  indictment.  Some  learning  grew  up  as  to  the 
conditions  under  which  this  course  could  be  pursued,  which  was 
becoming  obsolete  before  the  close  of  the  mediaeval  period.^  It  is, 
however,  a  procedure  which  is  historically  interesting,  as  it  makes 
a  sort  of  transition  stage  between  the  old  procedure  by  way  of 
appeal  and  the  new  procedure  by  way  of  indictment.  And  this 
was  not  the  only  link  between  the  old  procedure  and  the  new. 
In  fact,  the  main  historical  importance  and  interest  of  the  old 
procedure  by  way  of  appeal  is  the  indirect  influence  it  has  had 
upon  the  new  procedure  by  way  of  indictment  The  procedure 
by  way  of  indictment  came  into  the  common  law  at  a  time  when 
the  procedure  by  way  of  appeal  was  the  normal  procedure.  We 
shall  see  that  in  this  way  much  of  the  archaic  formalism  of  the 
older  system  of  criminal  procedure  was  imported  into  the  new ; 
and  the  fact  that  the  wording  of  the  indictment  imitated  very 
faithfully  the  wording  of  the  appeal  was  one  of  the  causes  for  that 
extreme  formalism  which,  till  quite  recently,  clung  around  the 
wording  of  the  indictment.^  We  shall  see,  too,  that  the  ordinary 
framework  of  the  new  procedure  by  way  of  indictment  and  trial 
by  petty  jury  was  modelled  on  the  old  procedure  by  way  of 
appeal ;  ^  that  a  similar  link  between  the  old  procedure  and  the 
new  will  appear  also  in  the  law  of  civil  procedure ;  ^^  and  that  it 
has  had  a  large  share  in  giving  both  to  the  criminal  and  the 
civil  procedure  of  the  common  law  some  of  their  most  salient 
characteristics.-^^ 

1  Hale,  P.C.  ii  226.  2  Ibid  226-235. 

3  "  The  truth  is,  that  more  mischief  hath  come  to  good  men  of  these  kind  of 
approvements  by  felon  accusations  of  desperate  villains,  than  benefit  to  the  public 
by  the  discovery  and  conviction  of  real  offenders,"  Hale,  P.C,  ii  226;  in  the  thirteenth 
century  Maitland  tells  us  that  •'  decent  people  who  were  in  frankpledge  and  would 
put  themselves  upon  a  jury  were  not  compelled  to  answer  his  accusations,"  P.  and  M. 
ii  631. 

-»  Hale,  P.C.  ii  226.  **  Vol.  ii  256-257. 

«  P.C.  ii  149.*  '  Staunford,  P.C.  ff.  I47b-i49b. 

8  Below  617-618.  '  Below  611-613. 

^0  Below  632.  "  Below  620-622,  628-629,  632. 

VOL,  in.— 39 


610        PROCEDURE  AND  PLEADING 

(ii)  Other  exceptional  forms  of  criminal  procedure  are  due,  not 
to  archaic  survivals,  but  to  later  developments  of  the  common  law. 
Of  the  procedure  by  way  of  impeachment,  which  has  some  affinity 
with  the  procedure  by  way  of  appeal,  I  have  already  spoken.^  Of 
the  development  of  the  summary  jurisdiction  of  the  justices  of  the 
peace  I  have  also  said  something,^  and  shall  say  more  in  a  later 
volume.^  I  shall  also  reserve  to  a  later  volume  the  history  of  the 
procedure  by  way  of  information.^  At  this  point  I  shall  say  a  few 
words  firstly  of  the  case  when  the  finding  of  a  jury  in  a  civil  action 
might  be  the  foundation  of  an  arraignment  at  the  king's  suit ;  and 
secondly  of  the  case  when  a  person  might  be  arraigned  on  the 
finding  of  a  coroner's  jury. 

(^a)  It  would  seem  that  the  rule  that  in  certain  cases  the  finding 
of  the  jury  in  a  civil  action  might  be  the  foundation  of  an  arraign- 
ment at  the  king's  suit,  probably  originated  from  an  application  to 
the  action  of  trespass  of  the  rule  that  abortive  proceedings  in  an 
appeal  might  give  rise  to  such  arraignment  We  have  seen  that 
the  action  of  trespass  was  rapidly  taking  the  place  of  the  appeal  in 
Edward  I.  's  reign  ;  ^  and  the  earlier  cases  cited  for  this  rule  are  all 
cases  of  trespass.  The  first  case  cited  for  it  is  a  note  in  Fitzherbert's 
Abridgement  of  the  year  1 303. '^  The  note  runs  as  follows  :  "  Tres- 
pass for  goods  carried  away.  The  defendant  pleaded  not  guilty, 
and  the  jury  found  him  and  another  guilty  as  felons.  Wherefore 
Sir  Roger  Bravafor  held  that  he  should  immediately  answer  for  the 
felony  at  the  king's  suit."^  In  1344,  in  an  action  of  trespass  **de 
bonis  viri  cum  muliere  abductis."  "The  point  was  touched  that  if 
the  defendant  be  found  guilty  by  verdict,  the  king  will  take  the 
verdict  as  an  indictment,  and  that,  if  he  thereupon  be  found  guilty 
at  the  King's  suit,  it  will  carry  judgment  of  life  and  member  " — 
from  which  it  was  sought  to  draw  the  conclusion  that  in  such  a 
case  no  attorney  could  be  appointed.^  Possibly  this  rule  was  later 
extended  to  actions  on  the  case ;  ^  and  it  was  explained  and  justified 
by  saying  that  a  verdict  of  twelve  men  was  equivalent  to  a  present- 

1  Vol.  i  379-385-  ^  Ibid  293-294. 

3Bk.  iv  Pt.  I.  c.  I. 

*Bk.  iv  Pt.  II.  c.  7  §  2;  it  was  known  in  the  Middle  Ages,  P.  and  M.  ii  658-65C 
but  it  does  not  attain  its  modern  form  or  scope  in  this  period. 

^Vol.  ii  364-365.  ^  Enditement  pi.  31. 

■^  The  conclusion  of  the  entry  is  as  follows :  *•  Mes  il  dit  si  enquest  ust  pass* 
en  auter  lieu  que  en  bank  le  roy  riens  serra  fait  a  la  felonie  tanque  en  Eire  d< 
Justices,  etc.,"  which  seems  to  mean  that  this  course  could  only  be  pursued  if  th« 
court  trying  the  action  had  jurisdiction  to  try  criminal  cases. 

8Y.B.  18,  19  Ed.  III.  (R.S.)  14;  in  Y.B.  13  Ed.  IV.  Mich.  pi.  7,  it  was  held  ths 
a  special  verdict  that  the  accused  had  not  taken  goods  feloniously,  but  that  one  Joh 
at  Stile  had,  would  not  serve  as  a  ground  on  which  John  at  Stile  could  be  indicted. 

^  Hale,  P.C.  ii  151,*  says  that  if  in  an  action  oi  slander  for  calling  a  man  thie 
the  defendant  justifies,  and  it  is  found  for  the  defendant,  the  plaintiff  could  b< 
arraigned  on  this  verdict  if  given  in  a  court  which  had  criminal  jurisdiction — but  h< 
cites  no  authority. 


PROCEDURE  AND  PLEADING         611 

ment,  so  that,  as  Staunford  and  Hale  explain,  it  did  not  contravene 
the  statutes  which  provided  that  no  man  should  be  put  to  answer 
but  upon  presentment  and  indictment.^  But  probably  this  very 
a  priori  theory  is  not  historically  correct,  and  that,  historically,  its 
origin  was  simply  the  practice  of  the  court  in  applying  to  the  action 
of  trespass  the  rule  which  they  had  long  applied  to  appeals. 

{b)  If  a  coroner's  inquest  super  visum  corporis  found  that  a 
certain  person  was  guilty  of  murder  or  manslaughter,  such  person 
could  be  arrested,  committed  to  prison,  and  tried  on  this  present- 
ment.^ But  this  presentment  of  the  coroner's  jury  was  no  bar  to  a 
similar  presentment  by  the  grand  jury  on  the  same  facts,  and  an 
indictment  on  that  presentment^  In  that  case  the  accused  was  in 
Hale's  time  generally  arraigned  upon  both  presentments  simultan- 
eously, if  both  were  sufficient  in  law  ;  ^  but,  as  coroner's  presentments 
were  generally  insufficient,^  he  was  often  indicted  and  arraigned  on 
the  presentment  of  the  grand  jury  only.  If  in  that  case  he  was 
acquitted  the  coroner's  presentment  could  be  quashed  if  it  was  insuf- 
ficient ;  or,  if  not,  he  could  then  be  arraigned  on  the  coroner's  present- 
ment and  plead  auter  foits  acquit!'  There  was  a  small  difference  of 
procedure  between  a  trial  on  the  coroner's  and  the  grand  jury's 
presentment,  which  arose  from  the  difference  between  the  object  of 
the  finding  of  the  grand  jury  and  the  coroner's  jury.  The  grand 
jury  only  presented  the  prisoner  as  suspected.  If  therefore  the 
petit  jury  negatived  that  suspicion  by  a  verdict  of  not  guilty  their 
duties  were  at  an  end.  On  the  other  hand,  the  presentment  of  the 
coroner's  jury  found  two  things,  firstly  that  some  one  was  killed, 
and  secondly  that  the  prisoner  was  the  murderer.  Though  their 
second  conclusion  was  negatived  by  a  verdict  of  acquittal,  their  first 
was  not.  Therefore  the  petty  jury  who  acquitted  were  obliged  to 
say  who  did  kill  the  person  in  question ;  and  on  their  finding  the 
person  named  by  them  could  be  arraigned.  But  the  change  in  the 
character  of  the  jury  had  reduced  this  rule  to  a  mere  form  when 
Hale  wrote — *'  commonly  if  they  cannot  tell,  they  give  in  some 
fictitious  name  2iS  John-a-Noke,  which  serves  the  turn."  ^ 

(2)  The  normal  procedure  of  indictment  and  trial  by  petty  jut y. 

The  normal  procedure  of  indictment  on  the  presentment  of  the 
grand  jury  and  trial  by  petty  jury  was  introduced  at  a  time  when 
the  older  conception  of  a  trial  was  the  normal  conception.      Hence, 

1  Staunford,  P.C.  if.  94b,  95 ;  Hale,  P.C.  ii  151.* 

2  Hale,  P.C.  ii  64.  '  Ibid  221. 

4  Ibid  222.  ^  Ibid.  « Ibid. 

■^  Ibid  64-65;  it  would  seem  from  the  Y.BB.  cited  by  Hale,  ibid  300,  that 
this  practice  was  well  established  in  the  fifteenth  century ;  but  he  points  out  that 
in  the  fourteenth  century  the  law  was  otherwise,  "and  the  jury  that  acquits, 
whether  upon  a  presentment,  or  upon  an  indictment  of  homicide,  shall  be  chaced  to 
say  who  did  the  fact,"  citing  37  Ass.  pi.  13. 


612        PROCEDURE  AND  PLEADING 

as  I  have  already  pointed  out,  the  new  method  of  trial  by  jury, 
both  in  criminal  and  civil  cases,  was  adapted  to  the  old  conception. 
Now  we  have  seen  that  the  old  conception  of  a  trial  was  very  differ- 
ent from  the  modern  conception.^  The  pleadings  of  the  parties 
led  up  to  some  one  of  many  modes  of  proof  which  might  be  either 
selected  by  the  parties  or  adjudged  by  the  court.  ^  How  those 
modes  of  proof  worked  it  was  impossible  to  enquire.  All  the  legal 
interest  of  the  case  was  centered  in  the  questions  which  led  up  to 
the  award  of  proofs  And  all  those  questions  were  subject  to  fixed 
rules  of  procedure,  which  bound  the  judge  as  strictly  as  the  parties  ; 
for  it  is  a  characteristic  of  these  old  procedural  rules  that  the  suitor 
is  considered  as  having  a  legal  right  to  their  enforcement  as 
against  the  court,  and,  therefore,  a  grievance  against  the  court  if 
they  are  not  applied  or  misapplied.^  The  jury  became  almost  the 
only  mode  of  proof  at  a  time  when  these  old  ideas  of  a  trial  were 
still  prevalent ;  and  consequently  the  jury  was  regarded  as  settling 
the  matter  in  the  same  final  and  inscrutable  manner  as  compurga- 
tion, battle,  or  ordeal.*  Therefore  in  the  new  as  in  the  older  law, 
all  the  legal  interest  in  the  case  turned  upon  what  we  should  now 
regard  as  preliminary  matters,  such  as  the  rules  of  process  for 
getting  the  parties  before  the  court,  and  the  rules  which  defined 
the  modes  in  which  they  should  state  their  case  when  they  were 
before  the  court.  Just  as  in  the  older  law,  all  these  rules  must 
be  put  in  motion  and  strictly  obeyed  by  the  parties  at  their  own 
risk,  so  now  the  parties  must  put  in  motion  the  machinery  of  pro- 
cess, and  define  with  the  same  verbal  accuracy  as  before,  and  with 
the  same  formal  words,  the  crime  with  which  the  accused  was 
charged.^  But  though  the  jury  took  the  place  of  the  older  modes 
of  proof,  though  the  pleading  of  an  older  age  was  adapted  to  the 
proof  by  jury,  the  growing  elaboration  of  the  law,  and  the  differ- 
ences between  the  test  of  the  jury  and  the  test  of  such  proofs  as 
ordeal  or  battle,  began  a  series  of  changes  which  eventually  sub- 

^  Vol.  i  299-302 ;  vol.  ii  103-107. 

2  Vol.  i  301 ;  P.  and  M.  ii  599-600;  Thayer,  Evidence  9,  10. 

'See  e.g.  Bracton  s  Note  Book  case  1115. 

*P.  and  M.  ii  663-665  ;  vol.  i  213-214;  see  ibid  521  for  a  survival  of  this  idea  in 
the  Channel  Islands;  for  a  similar  idea  in  Roman  Law,  see  Sohm,  Institutes  (tr.  G. 
Ledlie),  ed.  1892,  153.  Greenidge,  Legal  Procedure  in  Cicero's  Time  84,  speaking 
of  the  civil  law  formulae,  says :  ♦'  Nor  is  it  at  all  likely  that  these  civil  '  formulae  ' 
were  preceded  by  any  ruling  in  law,  by  any  promise  of  an  action,  or  in  fact  by  any- 
thing of  the  nature  of  an  edict.  For  the  praetor  could  not  promise  where  he  could 
not  refuse,  and  the  ruling  was  not  his,  but  that  of  the  ius  civile.  So  far  the  praetor 
professes  to  be  only  an  exponent  of  something  beyond  and  behind  him." 

»Vol.  i  317. 

^  For  an  analogy  in  Roman  Law  cp.  Girard  952 :  "II  (le  magistrat)  donne 
simplement  par  son  concours  une  sorte  d'authenticit^  indispensable  aux  actes  des 
parties,  sp^cialement  k  ceux  du  demandeur  .  .  .  son  r61e  est  un  role  d'assistant 
sinon  purement  passif  au  moins  un  k  peu  prds  m^canique ; "  Greenidge,  Legal 
Procedure  in  Cicero's  Time  84, 


PROCEDURE  AND  PLEADING         613 

stituted  for  the  old  system  of  proof  a  very  different  conception  of 
a  criminal  trial. 

At  the  end  of  this  period  a  very  different  conception  of  a 
criminal  trial  had  emerged,  which,  as  we  shall  see,  was  funda- 
mentally different  from  that  which  was  emerging  in  any  other 
country  in  Europe.  But  it  was  historically  connected  with  the 
older  conception,  and  owed  some  of  its  most  valuable  characteristics 
to  this  fact  We  shall  see  how  this  came  about  if  we  look,  firstly 
at  the  differences  between  the  new  and  the  old  procedure  which 
followed  from  the  introduction  by  trial  by  jury,  and  from  the  growth 
and  elaboration  of  the  common  law  rules  of  procedure;  and 
secondly  at  the  resemblances  which,  in  spite  of  all  these  changes, 
still  existed. 

(i)  The  differences  between  the  new  and  the  old  procedure. 

Firstly,  the  jury  was  not  a  mechanical  test  like  ordeal  or  com- 
purgation or  battle,  but  a  body  of  intelligent  men  who  were  sworn 
to  "well  and  truly  try  and  true  deliverance  make  between  our 
sovereign  lord  the  king  and  the  prisoner  at  the  bar."  Hence  we 
get  rules  as  the  persons  whom  the  prisoner  could  object  to  as 
jurors  which  were  approaching  their  modern  form  when  Fortescue 
wrote  ^ — he  tells  us,  for  instance,  that  the  accused  could  challenge 
peremptorily  thirty-five.^  We  get  rules  as  to  the  mode  in  which 
the  jury  must  give  their  verdict,^  and  as  to  the  possibility  of  its 
modification ;  *  as  to  their  safe  custody  while  they  are  considering 
it ;  ^  and  as  to  their  right  to  find  the  prisoner  guilty  of  a  lesser 
charge  than  that  with  which  he  is  accused.  If,  for  instance,  he 
was  accused  of  grand  larceny  he  could  be  found  guilty  of  petty 
larceny ;  ^  and  if  he  was  accused  of  murder  or  manslaughter  the 
jury  could  find  that  the  homicide  was  committed  se  defendendo 
or  per  infortunium?  But  in  the  latter  case.  Hale  tells  us,  the 
jury  must  find  the  special  matter,  "  and  if  upon  the  special  matter 
shown  it  shall  appear  to  be  murder  or  manslaughter,  the  court 
will  accordingly  judge  of  it,  though  the  jury  conclude  et  sic  per 
infortunium^  or  sic  se  defendendo''  ^ 

Secondly,  as  this  last  cited  rule  shows,  the  jury  could  not 
decide  matters  of  law.     On  a  proper  direction  by  the  judge  they 

^Vol.  i  336.  .^  De  Laudibus  c.  27. 

3  Thus  if  the  jury  say  they  are  agreed  and  are  not  the  court  may  fine  them,  29 
Ass.  pi.  27,  and  40  Ass.  pi.  10 ;  in  cases  of  treason  or  felony  they  must  give  their 
verdict  in  open  court,  and  could  not,  as  in  other  cases,  give  a  privy  verdict,  Co.  Litt. 
227b ;  vol.  i  319  nn.  2  and  3. 

*  After  the  verdict  was  recorded  they  could  not  retract  it,  Fitz.,  Ab  Corone  pi. 
108  (7  Rich.  II.) ;  but  they  could  before,  Plowden  at  p.  211. 

5Y.B.  24  Ed.  III.  Hil.pl.  10. 

«  Fitz.,  Ab.  Corone  p!.  451  (41  Ed.  III.). 

7  Ibid  pi.  284  (3  Ed.  III.).  8  p.c.  ii  302. 


614        PROCEDURE  AND  PLEADING 

could  find  a  general  verdict  of  guilty  or  not  guilty.^  But  it  was 
always  open  to  them  to  find  a  special  verdict,  and  ask  for  the 
judgment  of  the  court  thereon.^  Thus  we  get  a  distinction  between 
issues  of  fact  and  law  which  was  foreign  to  the  primitive  procedure 
in  which  the  assertion  of  the  appellor  was  met  by  the  denial  of  the 
appellee,  and  followed  by  an  award  of  proof.  ^ 

Thirdly,  the  growing  elaboration  of  the  law  made  it  possible 
for  the  accused  to  plead  many  other  pleas  besides  the  flat  denial 
which  seems  to  have  been  the  only  defence  possible  under  the  old 
system.*  Thus  there  were  pleas  which  questioned  the  jurisdiction 
of  the  court  to  try  him,  such  as  the  plea  of  clergy  or  sanctuary.^ 
As  we  have  seen,  the  former  plea  could  be  urged  after  conviction  ; 
and  this  had  come  to  be  the  usual  course  in  the  latter  part  of  the 
mediaeval  period.^  There  were  pleas  in  abatement  of  the  indict- 
ment ;  and  we  shall  see  that  the  strictness  required  in  the  wording 
of  indictments  rendered  such  pleas  very  common.  They  also 
could  be  and  generally  were  urged  after  conviction  ;  and  to  argue 
such  pleas  the  prisoner  could  have  counsel  assigned.^  There  were 
pleas  in  bar  of  the  indictment — pleas  of  a  pardon  general  or 
special,^  pleas  of  auterfoits  acquit,^  or  auterfoits  convict. ^^  A  mass 
of  learning  was  beginning  to  accumulate  round  these  pleas  during 
the  mediaeval  period,  both  on  the  question  as  to  the  mode  in  which 
they  could  be  proved,  and  on  the  question  as  to  the  circumstances 
under  which  they  were  available.  Upon  an  indictment  for  treason 
or  felony  the  accused  was  allowed  to  urge  pleas  of  this  kind,  and 
then  plead  over  the  general  issue  not  guilty  if  they  were  found 
against  him.^^  The  contrary  rule,  observed  in  civil  cases  ^^  and  on 
indictments  for  misdemeanours,^^  was  here  relaxed  in  favorem  vitae. 
On  the  other  hand,  a  prisoner  might,  if  he  were  very  badly  ad- 
vised, demur  to  the  indictment.^*     As  a  demurrer  admits  all  the 

^  An  early  illustration  of  a  summing  up  by  a  judge  with  a  direction  to  the  jury 
somewhat  after  the  modern  style  will  be  found  in  22  Ass.  pi.  55  ;  but  in  the  report 
the  judge's  statement  of  the  law  is  given,  not  in  the  direction  to  the  jury,  but  after 
their  verdict ;  it  is  clear,  however,  that  he  expected  a  special  verdict,  but  that  they 
gave  a  general  verdict  of  not  guilty  with  which  he  agreed. 

2  For  instances  see  Fitz.,  Ab.  Corone  pi.  284;  Y.B.  13  Ed.  IV.  Mich.  pi.  7; 
Mackalley's  Case  (1612)  9  Co.  Rep.  65b;  for  a  general  account  of  the  power  of  the 
jury  to  find  a  special  verdict  in  civil  and  criminal  cases  see  Dowman's  Case  {1584) 
9  Co.  Rep.  at  ff.  iib-i3b. 

3  See  P.  and  M.  ii  627-628.  *  Vol.  ii  106. 
^  Above  293-307.                                              ^  Above  298. 

'  Below  615-619.  8  Staunford,  P.C.  99a- 104b. 

^  Ibid  io5a-io7b.  ^°  Ibid  io7b-io8a. 

^1 "  Regularly,  where  a  man  pleads  any  plea  to  an  indictment  or  appeal  of  felony, 
that  doth  not  confess  the  felony,  he  shall  yet  plead  over  to  the  felony  in  favorem 
vitcB,  and  that  pleading  over  to  the  felony  is  neither  a  waiving  of  his  special  plea, 
nor  makes  his  plea  insufficient  for  doubleness,"  Hale,  P.C.  ii  255,  citing  Y.B.  22  Ed. 
IV.  Hil.  pi.  I  (p.  39). 

^2  Below  631-632.  ^'  Kenny,  Criminal  Law  471. 

^^  For  demurrers  see  below  629. 


PROCEDURE  AND  PLEADING         615 

facts  set  out  in  the  indictment  it  followed  that  the  determination 
of  such  a  demurrer  against  the  prisoner  was  equivalent  to  a  con- 
viction. *'  It  is,"  says  Hale,^  **  a  confession  of  the  indictment,  and 
indeed  a  wilful  confession,  for  he  may  have  all  the  advantages 
of  exception  to  the  insufficiency  of  the  indictment  ...  by  way  of 
exception  either  before  his  plea  of  not  guilty,  or  after  his  conviction 
and  before  judgment,  as  he  might  have  by  demurrer." 

(ii)  The  resemblances  between  the  new  and  the  old  procedure. 

It  is  the  resemblances  between  the  new  and  the  old  procedure 
which  are  the  most  striking,  and,  from  some  points  of  view, 
historically  the  most  important. 

Firstly,  though  it  had  become  possible  for  an  accused  person 
to  plead  many  other  pleas  besides  a  bare  denial,  the  method  of 
pleading  in  criminal  cases,  unlike  that  in  civil  cases,  has  always 
adhered  more  closely  to  the  old  forms.  Pleading  in  criminal  cases 
was  always  oral.  It  is  true  that  the  indictment,  unlike  the  accu- 
sation of  the  appellor,  was  written  ;  but  this  written  indictment  was 
in  form  and  in  fact  a  presentment  to  the  king  on  which  the  king 
took  action.^  It  must  always  be  read  to  the  prisoner  on  his 
arraignment ;  ^  and,  because  it  was  in  its  written  form  a  present- 
ment to  the  king,  the  prisoner  was  not  at  common  law  entitled  to 
a  copy.^  It  was  far  from  simple,  as  we  shall  see;  ^  but  we  shall 
see  also  that  this  elaboration  has  ancient  roots.  ^  On  the  other 
hand,  the  pleas  advanced  by  the  accused  were  not  only  oral  but 
simple.  It  is  true  that  a  mass  of  technical  learning  accumulated 
round  these  different  pleas.  But  that  learning  related,  not  to  the 
form  of  the  plea,  but  to  the  circumstances  under  which  it  could  be 
pleaded,  and  its  effect  when  it  was  pleaded  in  those  different  cir- 
cumstances. The  form  of  the  plea  was  always  the  same.  In  fact 
this  was  necessarily  the  case.  We  shall  see  that  the  elaboration 
of  the  forms  of  pleading  in  civil  cases  arose  partly  from  the  greater 
elaboration  of  the  facts  of  those  cases,  but  mainly  from  the  fact 
that  the  parties  could  employ  professional  advisers  who  spoke  or, 

1  P.C.  ii  257. 

2  '*  But  here,  my  Lords,  I  would  first  observe  the  reason  and  use  of  a  presentment 
or  indictment,  it  is  to  apprise  the  king  of  such  an  offence  committed,  as  it  is  of  an 
office,  to  inform  him  of  a  title  in  civil  matters,"  R.  v.  Berchet  (1691)  i  Shower  at 
p.  120  per  Shower  arg. 

3  Hale,  P.C.  ii  219. 

*  Ibid  236  ;  the  rule  was  changed  as  to  treason  by  7,  8  William  III.  c.  3  ;  the 
reason  for  the  rule  had  ceased  to  be  apparent  in  the  seventeenth  century,  see  the 
remarks  of  Jeffreys,  C.J.,  in  R.  v.  Rose  (1684)  10  S.T.  at  p.  267  ;  but  the  rule  was  un- 
doubted, see  R.  V.  Charnock  {1696)  12  S.T.  at  pp.  1381-1382  per  Holt,  C.J. ;  there  can 
be  little  doubt  that  it  was  retained  because,  taken  in  connection  with  the  rule  that 
the  prisoner  could  not  be  advised  by  counsel,  it  prevented  him  from  taking  some  of 
those  captious  objections  to  the  indictment  which  we  shall  see  were  possible,  below 
617-618. 

5  Below  617-618.  « Below  6i8. 


616        PROCEDURE  AND  PLEADING 

in  later  days,  drew  their  pleadings.^  But  in  cases  of  treason  or 
felony  the  accused  was  not  allowed  to  be  represented  by  counsel.^ 
Therefore  there  was  no  opportunity  for  the  development  of  the 
science  of  pleading  on  the  lines  on  which  it  developed  in  civil  cases. 
For  the  same  reason  also  the  accused  was,  as  we  have  seen, 
generally  allowed  to  plead  over  not  guilty,  even  though  any 
special  pleas  he  had  advanced  had  failed.^  The  rule  that  a  man 
must  plead  at  his  peril  the  right  plea  could  not  fairly  be  enforced 
against  a  prisoner  ignorant  of  law  who  was  fighting  for  his  life  ; 
and  this  feeling  tended  to  make  the  courts  willing  to  allow  a 
prisoner  under  a  plea  of  not  guilty  to  urge  anything  he  could  in  his 
defence,^  as  probably  he  could  have  done  under  the  older  system  ; 
and,  even  after  conviction,  to  allow  him  to  urge  anything  he  could 
as  a  reason  why  sentence  should  not  be  passed. 

Secondly,  we  have  seen  that  the  whole  question  of  guilt  or 
innocence  was  submitted  to  the  jury  as  to  one  of  the  older  modes 
of  proof  The  court  refused  to  divide  them  and  treat  them  as 
witnesses,  or  even  to  accept  the  verdict  of  a  majority.^  It  ac- 
cepted their  verdict  as  it  used  to  accept  the  results  of  ordeal 
or  compurgation.  It  did  not  trouble  itself  with  questions  of 
evidence ;  for  as  yet  the  law  of  evidence  was  very  rudimentary. 
It  only  took  care  to  provide  that  the  jury  should  be  likely 
to  know  something  of  the  facts  by  making  it  necessary  that  all 
or  some  of  them  should  come  from  the  neighbourhood.^  The 
accusation  was  contained  in  the  indictment ;  the  accused  could 
make  what  defence  he  liked ;  the  court  could  sum  up  the  case ; 
and  on  this  material  the  jury  must  decide  as  best  they  could. 
It  is  difficult  to  see  how  such  a  method  of  trial  could  have  been 
invented  except  by  men  who  lived  so  close  to  the  age  in  which 
the  older  methods  of  proof  were  living  things,  that  they  could 
consider  it  natural  to  submit  in  this  way  the  whole  matter  to 
the  jury. 

Thirdly,  the  most  distinctive  characteristic  of  the  new  mode 
of  procedure  was  the  written  indictment ;  '^  and  the  formality, 
certainty,  and  verbal  precision  required  in  an  indictment  has 
always  been  one  of  the  most  salient  characteristics  of  English 
criminal  procedure.  Of  this  matter,  therefore,  I  must  speak  at 
somewhat  greater  length.  Firstly,  I  shall  give  one  or  two  illustra- 
tions of  the  formal  and  minute  accuracy  required  in  indictments ; 
secondly,  I  shall  try  to  account  for  the  origin  of  these  rules ;  and, 
thirdly,  I   shall  say  a  few  words  as  to  their  effects.     We  shall 

1  Below  641-642. 

2  Vol.  ii  107,  312;  Y.B.  30,  31  Ed.  I.  (R.S.)  530. 

3  Above  614.  *  P.  and  M.  ii  651. 
"Vol.  i  318.                                                         6 Ibid  332. 

'  For  an  account  of  the  form  of  an  indictment  see  Stephen,  H.C.L.  i  275-284. 


PROCEDURE  AND  PLEADING         617 

see  that,  though  it  is  not  wholly  due  to  the  rules  which  required 
a  similar  formalism  and  accuracy  in  the  statement  of  an  ap- 
pellor's case,  it  probably  originates  in  an  imitation  of  those 
rules. 

{a)  The  Abridgments  and  the  Year  Books  show  that  the  rules 
as  to  formality,  certainty,  and  verbal  precision  required  in  in- 
dictments had  already  gone  considerable  lengths  at  the  close  of 
the  mediaeval  period  ;  and  they  increased  in  complexity  during 
the  sixteenth  and  seventeenth  centuries.  To  illustrate  them  I 
shall  adopt  Hale's  arrangement,^  and  give  one  or  two  instances 
from  the  Year  Books  and  later  reports. 

(i)  The  name  and  condition  of  the  accused  must  be  truly 
stated.  If  the  name  was  untruly  stated,^  or  his  "addition" 
falsely  or  too  generally  stated,^  the  indictment  could  be  quashed, 
(ii)  The  year  and  day  in  and  on  which  the  crime  was  committed 
must  be  certainly  stated.  Thus  if  A  were  indicted  that  on  the 
feast  of  St.  Peter  in  a  certain  year  he  killed  J.S.  the  indictment 
was  defective  because  there  are  two  feasts  of  St.  Peter  in  each 
year.*  (iii)  The  same  rule  applied  to  the  place  where  the  crime 
was  committed.  Thus  where  A  was  indicted  ^' quod  ipse  tali  die 
et  anno  apud  C  in  quendam  B  insultum  fecit,  et  ipsum  cum  quodam 
cultello  felonice  percussit  occidit  et  murdravit,  without  saying  ad 
tunc  et  ibidem  percussit  occidit  et  murdravity  the  indictment  was 
not  good,  for  the  assault  might  be  at  one  day  and  place  and 
the  killing  at  another."  ^  (iv)  The  name  of  the  victim  of  the 
crime,  if  known,  must  be  inserted.  If  not  known  he  must  be 
described  as  **quidam  ignotus."  Thus  when  the  indictment 
alleged  that  the  accused  invenit  quendam  hominem  mortuum  ac 
felonice  furatus  est  duas  tunicas,  and  did  not  go  on  to  say  de 
bonis  et  catallis  cujusdam.  ignoti,  it  was  insufficient.^  (v)  The 
offence  must  be  charged  with  certainty.  It  was  insufficient  to 
charge  a  man  with  being  a  communis  latro,  or  communis  champertor, 
or  a  communis  malefactor?  (vi)  A  similar  certainty  was  needed 
in  stating  the  act  done  by  the  accused,  and  the  manner  in  which 
he  did  it.  Thus  to  allege  that  A  felonice  abduxit  unum  equum 
without  saying  cepit  et  abduxit  was  not  good,  as  he  might  have 

1  P.C.  ii  chap.  xxv.  2  y.B.  ri  Hy.  IV.  Hil.  pi.  7. 

3Y.B.  9  Ed.  IV.  Hil.  pi.  2;  Sir  Henry  Ferrers's  Case  (1635)  Cro.  Car.  371; 
the  need  to  insert  in  original  writs,  appeals,  and  indictments  "additions"  of 
the  estate  degree  or  mystery  of  the  defendants  or  accused,  and  of  the  towns 
or  hamlets  or  places  and  counties  where  they  resided,  was  due  to  i  Henry  V. 
c.  5. 

4  Y.B.  3  Hy.  VII.  Pasch.  pi.  2 ;  of.  Y.B.  9  Hy.  VII.  Hil.  pi.  i. 

'Hale,  P.C.  ii  180,  citing  Thomas  Buckler's  Case  (1552),  Dyer  68b;  cp. 
Y.B.  I  Rich.  III.  Mich.  pi.  i  per  Fairfax. 

«  Fitz.,  Ab.  Enditement  pi.  27  (11  Rich.  II.) ;  Long's  Case  (1597)  Cro.  Eliza, 
at  p.  490. 

'  22  Ass.  pi.  73  ;  29  Ass.  pi.  45  ;  Hale,  P.C.  ii  182. 


618         PROCEDURE  AND  PLEADING 

had  the  horse  by  bailment,  and  then  it  was  no  felony ;  ^  and  an 
indictment  for  high  treason  which  omitted  the  words  contra 
ligeantice  suce  debitum  was  insufficient.^  The  absence  of  the 
word  felonice  in  an  indictment  for  felony  was  fatal ;  ^  and  so 
was  the  mispelling  murd^ravit  for  murdravit.*  In  the  case  of 
murder  the  weapon  must  be  specified,  whether  it  was  held  in 
the  right  or  lefl  hand,  in  what  part  of  the  body  the  wound  was 
inflicted,  the  nature  and  description  of  the  wound,  the  fact  that 
the  party  died  of  the  wound,  and  the  date  of  the  wound  and 
the  death.  ^  (vii)  There  must  be  a  proper  conclusion.  An  in- 
dictment which  concluded  contra  pacem  without  adding  the 
words  dontini  regis,^  was  insufficient ;  and  the  question  when 
it  was  necessary  to  conclude  contra  formant  statuti  gave  rise  to 
many  decisions.'^  Hale  points  out  that,  as  none  of  the  statutes 
of  jeo-fail  ^  applied  to  indictments,  a  defective  indictment  was 
not  aided  by  a  verdict  of  guilty.  It  followed  that,  even  if  a 
prisoner  had  neglected  to  take  advantage  of  the  insufficiency  of 
the  indictment  on  his  arraignment,  he  could  do  so  after  con- 
viction at  any  time  before  judgment  was  pronounced  upon  him.^ 

(J))  It  seems  to  me  that  this  extraordinary  and  irrational  set 
of  rules  which  had  grown  up  round  the  wording  of  indictments 
were  due  to  the  cumulative  effect  of  several  distinct  causes.  Firstly, 
there  can  be  little  doubt  that  the  verbal  accuracy  required  in  the 
old  appeals  was  transferred  to  the  indictments  which  were  taking 
their  place.  Secondly,  at  a  later  period,  the  courts  applied  to 
indictments  the  same  rules  of  verbal  exactness  which  they  were- 
applying  to  the  more  elaborate  pleas  which  were  coming  into  use  in 
civil  cases.  ^^  Though  the  fact  that  the  accused  was  not  represented 
by  counsel  supplied  a  good  reason  for  keeping  the  pleas  open  t( 
the  accused  simple,  there  was  no  such  reason  for  insisting  oi 
simplicity  in  the  wording  of  the  indictment,  for,  necessarily,  the 
crown  was  always  represented  by  counsel.  Thirdly,  the  indictmer 
was  always  a  written  document.  Though  the  oral  reading  of  th< 
indictment   to   the  prisoner  on  his  arraignment  was    the  formj 

1  Per   Brian,   C.J.,   in  Y.B.   13  Ed.  IV.  Pasch.  pi.  5  (p.  10),  citing  cases  oi 
2  and  8  Ed.  III. 

2  R.  V,  Tucker  (1693)  i  Ld.  Raym.  i. 
^Staunford,   PC.   96a;   similarly   the  absence  of  the  word   "  rapuit "  in 

indictment  for  rape,  Y.B.  9  Ed.  IV.  Trin.  pi.  35. 

*  Ryle's   Case   {1603)  Cro.    Eliza.  920 — though  the  court  held  in   that  c£ 
that  •♦  Burgalariter "  for   "  Burglariter "    did  not  vitiate  the  indictment;   but 
contra  Vaux  v.  Brooke  (1586)  4  Co.  Rep.  39b. 

i^Hale,  P.C.  ii  185-186,  and  the  cases  cited. 

c  Ibid  188.  7  Ibid  189-193. 

^  For  these  statutes  see  vol.  i  223. 

*  Hale,  P.C.  ii  193 ;  an  instance  where  this  course  was  successfully  pursuec 
is  R.  V.  Rosewell  (1684)  10  S.T.  at  p.  260  seqq. 

"  Below  619. 


PROCEDURE  AND  PLEADING         619 

accusation,  though  for  that  reason  the  prisoner  was  not  entitled  to 
a  copy  of  the  written  document,^  the  court  had  the  written 
document  before  them.  They  therefore  treated  this  written 
document  as  they  were  accustomed  to  treat  writs,  conveyances,  and, 
in  the  sixteenth  century,  pleadings.  They  in  effect  refused  to 
give  it  the  effect  intended  by  its  framer  if  it  was  capable  of  any 
other  meaning ;  ^  and  they  justified  their  refusal  by  the  salutary 
rule  that  in  capital  cases  the  utmost  certainty  was  required.^ 
Here,  as  in  other  branches  of  the  law,  the  dialectical  acuteness  of 
the  judges,  and  the  habit  in  later  law  of  reporting  these  cases  of 
construction  and  treating  them  as  authoritative,  stereotyped  in  the 
law  a  mass  of  captious  and  misplaced  ingenuity.  Coke  once  tried 
to  state  the  principle  upon  which  the  court  proceeded  in  these 
cases ;  but  as  might  be  expected,  with  very  little  success.^ 
Fourthly,  the  permission  given  by  the  courts  to  prisoners  to 
employ  counsel  to  argue  exceptions  to  the  indictment  tended  to 
aggravate  the  existing  tendency  of  the  judges  to  show  their 
acuteness  by  picking  holes  in  indictments.^ 

(c)  The  evil  effects  of  this  manner  of  treating  indictments  are 
obvious.  Hale  said  that  the  strictness  shown  in  indictments  with 
a  view  to  saving  life  had  grown  to  be  "  a  blemish  and  an  incon- 
venience in  the  law."  '^  More  offenders  escaped  by  the  over-easy 
ear  given  to  exceptions  in  indictments  than  by  their  own  innocence, 
and  many  times  gross  murders,  burglaries,  robberies,  and  other 
heinous  and  crying  offences  escape  by  these  unseemly  niceties,  to 
the  reproach  of  the  law,  to  the  shame  of  the  government,  and  to 
the  encouragement  of  villainy,  and  to  the  dishonour  of  God."  ^  If 
these  results  were  produced  in  the  days  when  the  prisoner  was  not 
allowed  to  see  a  copy  of  his  indictment  before  his  trial,  and  when 
he  could  not  be  advised  by  counsel,  much  more  were  they  likely 

^  Above  615  and  n.  4. 

2"  An  indictment  ought  to  be  certain  to  every  intent  without  any  intendment 
to  the  contrary,"  Long's  Case  (1597)  Cro.  Eliza,  at  p.  490. 

^  "  And  indictments  for  felony,  which  are  as  counts  and  declarations  for  the  king 
against  the  parties  for  their  lives,  ought  to  have  certainty  expressed  in  the  record  of 
the  indictment  and  shall  not  be  supplied  or  maintained  by  intentment  or  argument. 
For  if  counts  between  party  and  party  for  land  or  chattels  ought  to  have  two  things, 
5«7.  truth  and  certainty  .  .  .  a /or^ion  indictments,  especially  those  which  concern 
the  life  of  a  man,"  Long's  Case  (1605)  5  Co.  Rep.  at  f.  120b. 

^  Long's  Case  (1605)  5  Co.  Rep.  at  f.  121a  where  he  divided  certainties  into 
the  three  categories  of  (i)  certainty  to  a  common  intent  which  was  sufficient  in 
•'bars  which  are  to  defend  the  party  and  to  excuse  himself;"  Hi)  certainty  to  a 
certain  intent  in  general  which  was  required  in  indictments,  and  counts ;  and  (iii) 
certainty  to  a  certain  intent  in  every  particular,  which  was  never  required.  It  is 
easy  to  lay  down  principles  of  this  kind,  but  obviously  quite  impossible  to  bring 
all  this  mass  of  decisions  under  them — as  is  clear  from  Hale's  chapter  on  this 
subject. 

°See  e.g.  the  objections  urged  in  Long's  Case  (1605)  5  Co.  Rep.  120a,  and  in 
Mackalley's  Case  (1612)  9  Co.  Rep.  65b. 

6  P.C.  ii  193. 


620        PROCEDURE  AND  PLEADING 

to  be  produced  when  in  cases  of  treason,  he  was  allowed  to  have  a 
copy,  and  when  in  the  eighteenth  century,  counsel  were  allowed 
to  help  the  prisoner  in  every  way  except  addressing  the  court  in 
his  favour.^  Stephen,  writing  in  1882,  said  ^  that  "  it  is  scarcely  a 
parody  to  say,  that  from  the  earliest  times  to  our  own  days,  the  law 
relating  to  indictments  was  much  as  if  some  small  proportion  of  the 
prisoners  convicted  had  been  allowed  to  toss  up  for  their  liberty." 
But  in  spite  of  these  evil  effects  this  state  of  the  law  had  three 
very  obvious  advantages.  Firstly,  as  Stephen  has  pointed  out,^  it 
prevented  the  ''arbitrary  multiplication  of  offences  and  extension 
of  the  criminal  law  by  judicial  legislation  in  times  when  there  were 
no  definitions  of  crimes  established  by  statute,  or  indeed  by  any 
generally  recognized  authority. "  As  he  says  "  looseness  in  the  legal 
definitions  of  crimes  can  be  met  only  by  strictness  and  technicality 
in  indictments."  The  decision,  for  instance,  that  an  indictment 
accusing  a  man  with  being  a  commuttis  latro  was  insufficient  by 
reason  of  the  uncertainty  of  the  offence  charged  was  very  salutary. 
Secondly,  the  fact  that  the  crown  was  treated  like  the  appellor  in 
an  appeal,  and  therefore  compelled  to  state  its  case  with  the  same 
particularity  and  formality,  was  the  strongest  security  against  the 
arbitrary  power  of  the  crown,  and  the  strongest  guarantee  that  the 
law  would  be  enforced  even  as  against  the  crown.  For  this  reason 
the  enforcement  of  these  strict  rules  played  no  small  part  in  securing 
the  victory  of  the  mediaeval  ideal  of  the  supremacy  of  the  law. 
Thirdly,  it  preserved  the  idea  that,  as  the  crown  must  prov^e  its 
case,  any  defences  which  could  disprove  that  case  were  open  to  the 
accused.  For  this  reason  it  helped  to  implant  in  the  minds  of  the 
common  lawyers  that  fear  of  convicting  the  innocent  to  which 
Fortescue  testifies  when  he  says  that  "  I  would  rather  wish  twentie 
evill  doers  to  escape  death  through  pitie  than  one  man  to  be 
unjustly  condempned."  ^  It  helped  to  engrain  in  the  common  law 
that  presumption  in  favour  of  innocence  which  it  has  always 
professed.  In  the  following  period,  when  that  presumption  was 
considerably  weakened,  it  was  mainly  in  these  rules  as  to  the 
sufficiency  of  indictments  that  it  lived  on,  and  was  able  to  influence 
our  modern  criminal  procedure. 

(3)  The  peculiarities  of  the  English  system  of  criminal  pro- 
cedure. 

In  many  different  countries  in  Europe,  from  the  thirteenth  cen- 
tury onwards,  the  need  to  establish  an  efficient  criminal  procedure 
was  felt.  Abroad  this  need  was  generally  supplied,  then  or  later, 
by  sweeping  away  the  old  procedure  in  which  a  definite  accuser 

1  Stephen,  H.C.L.  i  424.  2  ibid  284. 

»  Ibid  293.  *  De  Laudibus  c.  27. 


PROCEDURE  AND  PLEADING  621 

took  proceedings  against  the  accused  and  undertook  to  prove  his 
guilt  by  ordinary  legal  processes,  and  substituting  the  inquisitorial 
procedure  of  the  canon  law.^  This  new  procedure  did  not  take 
the  form  of  an  accusation,  but  of  an  enquiry  instituted  by  the 
state.  We  shall  see  in  the  following  Book  that  the  state  gradually 
took  more  and  more  powers  against  the  accused,  that  to  assist  it 
in  its  enquiry  it  assumed  and  made  a  regular  part  of  its  procedure 
the  power  to  torture  the  accused,  and  that  the  trial  became  a 
secret  proceeding  which  gave  the  accused  little  chance  of  making 
any  effective  defence.^ 

In  England,  on  the  other  hand,  the  old  accusatory  procedure 
was  adapted  to  the  needs  of  a  modern  state.  The  machinery  of 
presentment  and  indictment  superseded  the  appeal ;  trial  by  petty 
jury  superseded  trial  by  battle ;  and  many  of  the  older  technical 
rules  which  had  fettered  the  usefulness  of  appeals  disappeared. 
This  new  procedure,  though  accusatory,  was  a  true  criminal  pro- 
cedure— the  king  prosecuted,  and  every  indictment  alleged  that 
the  accused  had  offended  ''  against  the  peace  of  our  lord  the  king 
his  crown  and  dignity. "  But  just  as  trial  by  jury  inherited  some 
characteristics  of  the  older  methods  of  trial,  because  it  was  intro- 
duced at  a  time  when  the  ideas  underlying  these  older  methods 
were  generally  accepted ;  ^  so,  for  the  same  reason,  the  procedure 
by  indictment  inherited  two  of  the  salient  characteristics  of  the 
procedure  by  way  of  appeal. 

In  the  first  place,  both  were  accusatory.*  There  is  a  definite 
accuser — the  crown,  or,  in  the  middle  ages,  a  jury  of  presentment 
of  their  own  knowledge,  or  a  private  person  who  prosecutes  in 
the  name  of  the  crown ;  and  it  should  be  noted  that  a  private 
person  has  just  as  much  right  to  prosecute  in  the  name  of  the 
crown  as  the  crown  itself  "In  England,"  says  Stephen,^  "and, 
so  far  as  I  know,  in  England  and  some  English  colonies  alone, 
the  prosecution  of  offences  is  left  entirely  to  private  persons,  or  to 
public  officers  who  act  in  their  capacity  of  private  persons  and  who 
have  hardly  any  legal  powers  beyond  those  which  belong  to  private 
persons.  .  .  .  Every  private  person  has  exactly  the  same  right  to 
institute  any  criminal  prosecution  as  the  Attorney-General  or  any 
one  else."^  Thus  the  procedure  by  way  of  indictment,  like  the 
procedure  by  way  of  appeal,  stood  out  in  strong  contrast  to  the 

1  Thus  Esmein  tells  us,  History  of  Continental  Criminal  Procedure  143,  that  in 
France  •'  the  accusation  by  formal  party  died  out  in  the  sixteenth  century  without 
being  suppressed  by  law." 

3  Bk.  iv.  Pt.  I.  c.  4 ;  see  P.  and  M.  ii  653-655. 

3  Vol.  i  320;  above  616.  *  P.  and  M.  ii  655. 

5  H.C.L.  i  493,  495. 

*  For  some  modern  restrictions  on  the  right  of  any  private  person  to  prefer  an 
indictment  to  the  grand  jury  imposed  by  the  Vexatious  Indictments  Act  1859  see 
Kenney,  Criminal  Law  464,  465. 


622        PROCEDURE  AND  PLEADING 

inquisitorial  procedure,  which  put  the  initiation  of  the  proceedings 
entirely  into  the  hands  of  a  public  official. 

In  the  second  place,  the  view  taken  by  English  law  as  to  the 
nature  of  a  criminal  proceeding  came  to  dififer  entirely  from  the 
view  taken  by  continental  law.  Under  the  English  system  the 
procedure  is  conceived  of  as  an  action  between  a  plaintiff  and  a 
defendant  to  be  tried  by  a  process  substantially  similar  to  that 
employed  in  any  other  action.  Under  the  continental  system  the 
procedure  is  conceived  of,  not  as  an  action  between  parties,  but  as 
an  enquiry  into  the  guilt  or  innocence  of  a  suspected  person  con- 
ducted by  officials.  It  follows  that  under  the  English  system  the 
rules  of  procedure  applicable  to  an  ordinary  action  ought  to  be 
followed.  We  have  seen  that  the  indictment  inherited  from  the 
appeal  the  necessity  to  show  an  even  greater  exactitude  of  expres- 
sion than  was  required  in  any  other  writ  or  pleading.^  There  is 
the  same  liberty  of  defence  as  in  any  other  action,  and  the  same 
trial  by  jury ;  and,  though  the  crown  possessed  some  advantages 
— the  prisoner  for  instance  could  not  employ  counsel — these  ad- 
vantages were  comparatively  few.  When,  in  the  fifteenth  century, 
Fortescue  wrote  his  praises  of  the  laws  of  England  the  fairness  and 
humanity  of  the  English  system  of  criminal  procedure  could  be 
contrasted  with  the  continental  system.  *'  In  this  kinde  of  pro- 
ceeding," he  says,  '*  there  is  no  cruelty  or  extremity  used,  neither 
can  the  innocent  and  unguilty  person  be  hurt  in  his  bodie  or 
limmes :  wherefore  hee  shall  not  stand  in  feare  of  the  slander  of 
his  enemies,  because  hee  shall  not  be  racked  or  tormented  at  their 
will  and  pleasure."  ^ 

In  fact,  just  as  in  the  sphere  of  government  central  and  local 
the  maintenance  of  older  forms  and  older  ideas  had  been  made 
possible  because  they  had  been  rationalized  by  the  strong  kings 
of  the  twelfth  and  thirteenth  centuries,  and  by  the  statesmen  and 
lawyers  of  the  fourteenth  and  fifteenth  centuries ;  ^  just  as  the 
maintenance  of  these  older  forms  and  older  ideas  was  giving  rise 
to  a  unique  form  of  representative  assembly,  a  unique  form  of  local 
government,  and  a  unique  theory  of  government  based  upon  the 
supremacy  of  the  law  and  the  overriding  supremacy  of  Parlia- 
ment ;  ^  so,  in  the  sphere  of  criminal  law,  the  maintenance  of  older 
ideas  had  given  rise  to  a  unique  conception  of  a  criminal  trial — a 
conception  which  in  the  future  was  to  do  no  small  service  both  to 
the  cause  of  humanity  and  the  cause  of  constitutional  government 
Like  the  English  theory  of  government  it  was  destined  in  the  future 
to  be  a  model  to  the  nations  of  the  world.  ^ 

1  Above  617-619.  ^De  Laudibus  c.  27. 

'  Vol.  ii  404-405.  *  Ibid  429-434,  441-442  ;  Bk.  iv  Pt.  I.  c.  i. 

''•'When  in  the  eighteenth  century  French  philosophers  and  jurists  rebelled 
against  it  (the  inquisitory  procedure),  and  looked  about  them  for  an  accusatory,  con- 


PROCESS  623 

But  all  this  is  as  yet  in  the  remote  future.  The  English 
system  of  criminal  procedure,  as  it  emerged  at  the  close  of  the 
mediaeval  period,  had  the  defects  of  its  qualities.  The  meticulous 
accuracy  required  in  indictments,  and  the  growing  technicality  and 
formalism  of  many  other  parts  of  criminal  procedure,  played  into 
the  hands  of  the  lawless  and  unscrupulous  in  that  litigious  age. 
When  Fortescue  stated  that  '*it  is  not  to  be  suspected  that  any 
offendour  can  under  this  forme  escape  the  punishment  of  his 
offence,"  ^  he  was  stating  what  he  must  have  known  not  to  be  true.^ 
The  English  system  of  criminal  procedure,  like  many  other  parts 
of  English  law,  needed  to  be  reformed  and  strengthened.  We 
shall  see  that  in  the  sixteenth  century  it  was  reformed  and 
strengthened  by  borrowing  certain  ideas  from  the  continental 
system.  But  we  shall  see  that  the  main  features  of  the  criminal 
procedure  of  the  mediaeval  common  law  were  still  retained  ;  and 
that  when,  at  the  end  of  the  seventeenth  century,  the  victory  of 
the  Parliament  secured  the  supremacy  of  the  political  ideals  of  the 
common  lawyers,  this  criminal  procedure,  reformed  and  strength- 
ened by  the  new  ideas  which  it  had  borrowed  in  the  sixteenth 
century,  preserved  for  the  modern  English  state  those  qualities  of 
fairness  and  humanity  for  which  it  was  already  conspicuous  in  the 
days  of  Fortescue.^ 

§  2.   The  Civil  Law 
Process 

We  must  remember  that  at  the  beginning  of  this  period  the 
law  is  only  just  emerging  from  that  primitive  stage  in  which  the 
securing  of  the  appearance  of  the  defendant  is  a  difficult  problem ; 
and  that  it  is  still  in  that  stage  in  which  the  difficulties  of  travel 
make  process  slow.*  Rules  based  upon  primitive  legal  ideas,  and 
upon  physical  necessities  of  an  older  age,  became  the  permanent 
basis  of  an  elaborate  superstructure  of  technical  rules.  The  rules 
of  law  upon  this  subject  had  become  fixed  before  they  had  had 
time  to  become  rational.  It  followed  that  with  every  increase  in 
the  complexity  of  the  law  these  fixed  rules  became  less  rational 
and  a  greater  hindrance  to  justice.  We  have  seen  that  every 
action  possessed  its  special  machinery  and  its  special  formulae  for 
working  that  machinery.^  A  lawyer  who  wished  to  do  his  duty 
by  his  client  must  be  at  home  with  all  the  capacities  of  that 
machinery,  in  order  that  he  might  know  at  each  stage  of  the  case 

tradictory,  public  procedure,  a  procedure  which   knew  no  torture,  they   looked  to 
ancient  Rome  and  modern  England,"  P.  and  M.  ii  654-655;  cp.  vol.  i  319-320. 

1  De  Laudibus  c.  27.  ^  Vol.  ii  415-416,  457-459- 

«  Bk.  iv.  Pt.  I.  c.  4 ;  Pt.  II.  c.  7  §  2. 

*  P.  and  M.  ii  589,  590.  'Vol.  ii  520-521. 


624        PROCEDURE  AND  PLEADING 

what  chances  were  open.  Many  a  good  case  might  be  lost,  or  a 
bad  case  won,  or  at  least  a  decision  upon  it  delayed,  if  the  right 
step  were  taken  at  the  right  time,  or  if  prompt  advantage  were 
taken  of  an  unskilful  move  or  a  verbal  error. ^  It  would  be  both 
tedious  and  useless  to  go  into  details  about  the  process  used  to  get 
a  defendant  before  the  court,  and  the  various  forms  of  process  which 
might  issue  in  the  course  of  a  case,  or  after  it  had  been  decided. 
All  that  I  shall  attempt  is  to  give  a  few  illustrations  of  the  com- 
plicated rules  of  process  applicable  to  the  real  and  personal  actions. 
In  a  real  action  the  process  to  get  a  defendant  before  the  court 
consisted,  when  ''reduced  to  its  lowest  terms,"  of  summons,  seizure 
of  the  land  into  the  king's  hand,  and  finally  judgment  that  the  land 
be  handed  over  to  the  demandant.  Even  then  it  was  open  to  the 
tenant  to  reopen  the  whole  dispute  by  means  of  a  writ  of  right.  ^ 
It  would  be  in  very  few  cases  that  process  could  thus  be  reduced 
to  its  lowest  terms.  The  validity  of  the  summons  might  be  ques- 
tioned.^ Both  the  tenant  and  the  demandant  might  cast  many 
essoins — how  many  depended  upon  the  kind  of  action  brought.  If 
there  were  several  tenants  they  might  at  one  time  have  delayed  the 
proceedings  almost  indefinitely  by  fourching  in  essoins,  that  is  by 
essoining  themselves  alternately ;  *  and,  even  if  this  course  were 
not  adopted,  the  fact  that  several  defendants  had  successive  periods 
to  essoin  themselves  could  be  used  to  delay  the  action  indefinitely.^ 
In  many  cases  the  hearing  of  the  action  might  be  hung  up  by  claim- 
ing a  view  of  the  premises ;  and  there  was  much  litigation  upon 
the  right  to  have  a  view.^  Then  there  might  be  vouching  to  war- 
ranty or  aid  prayer,^  and  the  person  vouched  or  prayed  in  aid  might 
wish  to  essoin  himself  Protections  must  be  reckoned  with,  which 
would  put  the  case  without  a  day.^  Infants  might  intervene  and 
claim  their  age ;    and  this  would  mean  that  the  proceedings  would 

1  Below  625  n.  2,  637  n.  6.  ^  P.  and  M.  ii  590,  591. 

3 E.g.  Y.B.  I,  2  Ed.  II.  (S.S.)  19;  in  the  Eyre  of  Kent  (S.S.)  ii  iii  it  was  held 
that  a  summons  in  a  real  action  must  be  served  by  substantial  freeholders,  and  that 
if  it  was  served  by  a  bailiff  it  was  void. 

*3  Edward  I.  c.  43 ;  6  Edward  I.  st.  i  c.  10;  Reeves,  H.E.L.  ii  36,  37. 

''  There  is  a  curious  instance  of  this  in  an  opinion  in  the  Modern  Conveyancer 
(1725)  158-159;  the  tenant  in  a  writ  of  formedon  enfeoffed  100  persons  jointly,  ob- 
viously for  purposes  of  delay ;  the  demandants  were  advised  to  sue  the  feoffor,  rely- 
ing on  13  Elizabeth  c.  5  against  fraudulent  alienations,  because  *'  it  will  be  fruitless 
to  bring  the  for  redon  ugainst  all  the  enfeoffees,  for  every  one  of  them  will  essoin; 
and  if  they  be  100  of  them  then  it  will  be  50  years  before  all  will  have  essoined ;  and 
if  any  of  ^hem  die  in  the  meantime,  his  death  abates  that  action,  and  you  must  begin 
de  novo." 

6E.K.  Y.BB.  2,  3  Ed.  II.  (S.S.)  141;  3,  4  Ed.  II.  (S.S.)  144-145;  12  Rich.  III. 
137  ;  early  Roman  civil  procedure  seems  to  have  recognized  something  like  the  view, 
Greenidge,  Civil  Procedure  in  Cicero's  Time  55,  56. 

'R-eves,  H.E.L.  ii  632. 

8  E.g.  Y.B.  12,  13  Ed.  III.  (R.S.)  316 — a  case  which  shows  that  this  was  so 
even  when  there  were  several  defendants,  and  the  protection  was  cast  for  one  only ; 
Reeves,  H.E.L.  ii  615. 


PROCESS  625 

be  stayed  till  the  infant  had  attained  his  majority. ^  All  these 
various  processes  involved  many  writs  and  orders  to  the  sheriff; 
and  if  the  sheriff  had  taken  the  wrong  steps  to  carry  out  the  pro- 
cess, or  if  he  had  made  any  verbal  fault  in  his  returns,  there  was 
fresh  material  for  disputes  which  delayed  the  hearing  of  the  case.^ 
In  1344  it  was  noted  that  "if  the  demandant  omits  in  his  process 
any  part  of  his  demand  included  in  the  original  writ  the  whole  is 
discontinued."^  Booth  tells  us  that  the  proceeding  by  the  grand 
assize  is  very  dilatory,  and  may  become  "vexatious  to  the  Tenant 
by  the  Practice  of  the  Demandant  by  not  prosecuting  and  suing 
out  Process  as  he  ought,  and  many  other  Delays  for  want  of 
Knights,  there  not  appearing,  or  the  like."'* 

Process  in  the  case  of  personal  actions  was  almost  if  not  quite 
as  lengthy ;  but  there  were  not  all  the  opportunities  for  delay  in 
the  course  of  the  case  which  were  afforded  by  some  of  the  real 
actions.  The  essoins  allowed  were  not  so  numerous ;  ^  and  there 
could  be  no  vouching  to  warranty.  But  in  the  older  personal 
actions  the  process  was  lengthy  and  ineffectual  enough.^  There 
might  be  protections ;  there  might  be  fourching  in  essoins — in  an 
action  of  debt  in  1345  "we  see  the  defendants,  after  seven  years 
of  successful  fourching,  left  fourching  still  in  infinitum  ;  "  ^  and  it 
was  always  possible  to  question  the  acts  of  the  sheriff.  Moreover, 
we  must  not  forget  that  the  ingenious  means  by  which  the  three 
common  law  courts  encroached  upon  one  another's  jurisdiction  were 
merely  perversions  of  their  ordinary  process  which  added  to  the 
technicalities  of  an  already  complicated  system.^ 

Even  in  Edward  l.'s  reign  it  was  possible  for  the  judges  them- 
selves to  make  mistakes.  "How  is  it,"  said  Berewick  to  the 
sheriff,  "that  you  have  attached  these  people  without  warrant; 
for  every  suit  is  commenced  by  finding  pledges,  and  you  have 
attached  although  he  did  not  find  pledges?"  etc.  "Sir,"  said 
the  sheriff,  "it  was  by  your  own  orders."  "If  it  had  not  been 
so,"  notes  the  reporter,   "the  sheriff  would  have  been  grievously 

1  For  a  hard  case  of  this  kind,  see  Y.B.  i,  2  Ed.  II.  (S.S.)  150. 

2  See  e.g.  R.P.  iii  594  (7,  8  Hy.  IV.  no  112)  justice  was  delayed  because  the 
judges  were  '•  en  divers  opinions  at  ambiguities"  owing  to  the  fact  that  on  the  panel 
a  juror's  name  was  Congrove,  while  in  the  writs  of  Habeas  Corpus  and  Distringas  he 
was  called  Gongrove  ;  see  also  Y.B.  3,  4  Ed.  II.  (S.S.)  24;  the  Eyre  of  Kent  (S.S.) 
ii  85  ;  for  an  instance  of  an  original  writ  being  aljated  for  a  false  concord  see  Y.B. 
6,  7  Ed.  II.  (S.S.)  182. 

3  Y.B.  18,  19  Ed.  III.  (R.S.)  152. 

^Real  Actions  115  and  the  case  there  cited;  cp.  ibid  157  for  similar  remarks  as 
to  process  upon  the  writ  of  Formedon. 

'  Reeves,  H.E.L.  ii  95. 

^  See  ibid  i  500  for  an  example — it  appears  that  even  if  no  essoin  were  cast  the 
process  would  take  two  years  and  more  than  eight  months ;  for  details  see  the  pas- 
sage cited  App.  VII. 

'  Y.B.  19  Ed.  III.  (R.S.)  xxvi.  8  Vol.  i  218-222,  240. 

VOL.  HI.— 40 


626        PROCEDURE  AND  PLEADING 

amerced,  et  ideo  cave''^  In  Henry  VI.'s  reign  Fortescue,  C.J,, 
was  being  pressed  by  the  absurdity  of  a  distinction  which  he  was 
laying  down  as  to  when  a  writ  of  Scire  facias  would,  and  when  it 
would  not,  issue  against  a  person  who  had  possession  of  the  goods 
of  one  attainted.  All  he  could  reply  was,  ''  Sir,  the  law  is  as  I 
say  it  is,  and  so  it  has  been  laid  down  ever  since  the  law  began ; 
and  we  have  several  set  forms  which  are  held  as  law,  and  so  held 
and  used  for  good  reason,  though  we  cannot  at  present  remember 
that  reason."  ^  When  a  judge  of  Fortescue's  eminence  is  obliged 
to  confess  that  he  cannot  explain  the  reason  for  a  given  procedural 
rule,  and  is  reduced  to  infer  its  reasonableness  from  a  priori  views 
as  to  the  inherent  reasonableness  of  the  law,  we  may  be  sure  that 
the  rule  is  coming  to  be  an  antique  encumbrance. 

In  fact,  the  rules  as  to  process  were  the  least  reasonable  part 
of  the  mediaeval  common  law.  It  is  upon  them  that  we  must 
place  a  large  share  of  the  blame  which  attaches  to  that  law  in  the 
fifteenth  century  for  its  failure  to  keep  the  peace  and  to  punish 
wrong-doing ;  ^  and  it  is  not  until  many  of  these  complicated  rules 
as  to  process  went  out  of  use  with  the  decay  of  the  real  actions, 
and  with  reforms  in  the  process  of  the  personal  actions,  that  the 
common  law  will  be  able  to  develop  on  rational  lines.  Fortun- 
ately for  the  common  law  it  had,  in  the  semi-criminal  action  of 
trespass  vi  et  armis,  an  action  the  process  in  which  followed  the 
criminal  model. ^  There  could  be  no  fourching  in  essoins.^  It  was 
possible  to  arrest  the  defendant,  and  in  the  last  resort  to  outlaw 
him.  The  plaintiff  was  not  left,  as  in  some  of  the  older  personal 
actions,  to  the  expedient  of  keeping  on  distraining  a  contumacious 
defendant,  who  very  possibly  had  nothing  by  which  he  could  be 
distrained.^  Just  as  the  spread  of  the  actions  of  trespass  and 
trespass  on  the  case  will  help  to  liberalise  and  develop  many 
branches  of  the  substantive  law,  so  the  comparatively  speedy  pro- 
cess of  the  action  of  trespass  will  be  adopted  by  the  legislature, 
and  applied  to  many  other  actions  in  order  to  effect  a  much  needed 
reform  in  the  adjective  law.  ''By  divers  statutes,"  says  Coke, ^ 
'*  process  of  outlawry  doth  lie  in  Account,  Debt,  Detinue,  Annuity, 
Covenant,  Action  sur  le  statute  de  5   Richard  11.,^  Action  sur  la 

1  Y.B.  30,  31  Ed.  I.  (R.S.)  258 ;  cp.  Y.B.  6  Ed.  II.  (S.S.)  i  107. 

2  Y.B.  36  Hy.  VI.  pi.  21  (pp.  25-26)  cited  vol.  ii  524  n.  6 ;  and  cp.  ibid  515  n.  4. 

3  Vol.  ii  415-416.  ■*  Above  606-607. 

"  "  And  moreover  as  to  what  he  says  that,  if  an  essoin  w^ere  to  be  adjudged, 
process  infinite  would  follow,  it  is  not  so,  because  this  [Ejectment  of  Wardship, 
above  17  n.  i]  is  a  writ  of  Trespass  in  its  nature,  in  which  case  one  who  appears 
will  answer  in  the  absence  of  his  companion,"  Y.B.  20  Ed.  III.  (R.S.)  ii  164  per 
Sharshulle,  J. 

^  P.  and  M.  ii  591-593 ;  Reeves,  H.E.L.  i  452-456. 

7  Co.  Litt.  128b. 

8  The  statute  of  Forcible  Entries,  above  280. 


PROCEDURE  AND  PLEADING  627 

case,  and  in  divers  other  common  or  civil  actions."  But  these 
developments  belong  to  the  following  period  in  the  history  of  the 
law. 

Procedure  and  Pleading 

In  this  section  I  shall  deal  firstly  with  the  origins  of  the  new 
system  of  procedure  and  pleading  which  was  introduced  by  the 
advent  of  the  centralized  system  of  the  common  law,  and  with  its 
development  into  a  wholly  unique  system.  Secondly,  I  shall  say 
something  of  the  change  from  the  older  system  of  oral,  to  the 
modern  system  of  written  pleading,  and  of  the  effects  which  this 
change,  when  it  is  complete,  will  have  on  English  legal  institutions 
and  English  law. 

( I )  The  origins  and  development  of  the  new  system  of  procedure 
and  pleading. 

The  rules  of  pleading — the  mode  in  which  and  the  conditions 
under  which  the  parties  state  the  case  which  is  to  be  tried — go  far 
to  determine  the  shape  of  many  rules  of  law.  In  old  days  the 
defendant  must  meet  a  plaintiff  who  had  properly  stated  his  case 
with  a  full  denial ;  ^  but  we  shall  see  that,  though  this  rule  was 
long  preserved,  it  had  become  possible  in  Bracton's  day  for  a 
defendant,  after  making  this  full  denial,  to  use  divers  "exceptions," 
and  for  the  plaintiff  to  reply  to  these  ''exceptions."^  We  shall 
see  also  that  in  his  day  these  rules  were  confused.  It  is  not  till 
Edward  I.'s  reign  that  we  can  see  the  beginnings  of  that  unique 
branch  of  the  common  law — the  law  of  pleading — the  peculiarities 
of  which  cannot  better  be  described  than  in  the  words  of  Stephen :  ^ 

"  The  object  of  all  pleading  or  judicial  allegation  is  to  ascertain 
the  subject  for  decision,  so  the  main  object  of  that  system  of  plead- 
ing established  in  the  common  law  of  England  is  to  ascertain  it  by 
the  production  of  an  issue.  And  this  appears  to  be  peculiar  to 
that  system.  .  .  .  In  all  courts  indeed  the  particular  subject  for 
decision  must  of  course  be  in  some  manner  developed  before  the 
decision  can  take  place ;  but  the  methods  generally  adopted  for 
this  purpose  differ  widely  from  that  which  belongs  to  the  English 
law.  By  the  general  course  of  all  other  judicatures  the  parties  are 
allowed  to  make  their  statements  at  large  .  .  .  and  with  no  view 
to  the  extrication  of  the  precise  question  in  controversy ;  and  it 
consequently  becomes  necessary  before  the  court  can  proceed  to 
decision  to  review,  collect,  and  consider  the  opposed  effect  of  the 
different  statements,  when  completed  on  either  side — to  distinguish 

1  Vol.  ii  io6 ;  P.  and  M.  ii  60s. 

2  Vol.  ii  251,  283  :  below  630-631. 

3  Pleading  (5th  ed.),  137-138. 


628        PROCEDURE  AND  PLEADING 

and  extract  the  points  mutually  admitted,  and  those  which,  though 
undisputed,  are  immaterial  to  the  cause — and  thus,  by  throwing 
off  all  unnecessary  matter,  to  arrive  at  length  at  the  required 
selection  of  the  point  to  be  decided.  This  retrospective  develop- 
ment is,  by  the  practice  of  most  courts,  privately  made  by  each  of 
the  parties  for  himself,  as  a  necessary  means  to  the  preparation  and 
adjustment  of  his  proofs ;  and  is  also  afterwards  virtually  effected 
by  the  judge  in  the  discharge  of  his  general  duty  of  decision  ;  while 
in  some  other  styles  of  proceeding  the  course  is  different — the 
point  for  decision  being  selected  from  the  pleadings  by  an  act  of 
the  court  or  its  officer  ;  and  judicially  promulgated  prior  to  the 
proof  or  trial.  The  common  law  of  England  differs  from  both 
methods  by  obliging  the  parties  to  come  to  issue ;  that  is,  to  plead 
or  to  develop  some  question  (or  issue)  by  the  effect  of  their  own 
allegations  and  to  agree  upon  this  question  as  the  fact  for  decision 
in  the  cause ;  thus  rendering  unnecessary  any  retrospective  opera- 
tion on  the  pleadings  for  the  purpose  of  ascertaining  the  matter  in 
controversy." 

The  question  why  the  English  mode  of  pleading  is  so  different 
from  that  which  prevails  in  other  systems  of  law  is  one  which  can 
only  be  answered  by  legal  history.  The  answer  will  be  found  in 
the  peculiarities  of  the  old  conception  of  a  trial,  and  in  the  mode 
in  which  that  old  conception  of  a  trial  was  adapted  to  the  jury 
system.  We  have  seen,  when  dealing  with  the  history  of  criminal 
procedure,  that  in  the  later  common  law,  just  as  in  the  days  when  the 
older  conception  of  a  trial  prevailed,  all  the  complicated  machinery 
of  process  must  be  set  in  motion  by  the  parties  at  their  own  risk  ; 
and  that  all  the  minute  rules  as  to  the  verbal  accuracy  with  which 
the  parties  must  state  their  case  must  be  observed  by  them,  like- 
wise at  their  own  risk.^  Thus  we  get  that  which  Stephen  tells  us 
is  the  characteristic  feature  of  the  English  system  of  pleading — the 
settlement  of  the  issue  to  be  tried  by  the  allegations  of  the  parties. 
But  we  have  seen  that  though  the  jury  took  the  place  of  the  older 
modes  of  proof,  though  the  pleading  of  an  older  age  was  adapted 
to  the  proof  by  jury,  the  growing  elaboration  of  the  law,  and  the 
differences  between  the  jury  and  the  older  modes  of  proof,  set  on 
foot  a  series  of  changes  which  substituted  for  the  old  system  of 
proof  a  trial  based  upon  the  pleadings  of  the  parties. ^  Thus 
we  have  seen  that  we  begin  to  get  the  modern  distinction 
between  issues  of  fact  which  the  jury  must  determine,  and  issues 
of  law  which  the  court  must  determine ;  ^  and  that  the  growing 
elaboration  of  the  law  had  made  it  necessary  to  allow  the  parties 
to  plead  many  different  kinds  of  pleas. "*     It  is  true  that  the  old 

1  Above  612.  2  Above  613-615. 

3  Above  614.  *  Above  614-615. 


PROCEDURE  AND  PLEADING  629 

ideas  survived  so  far  that  a  defendant  must  generally  preface  his 
defence  by  a  flat  denial — Thwertiitnay  ;^  but  after  that  he  could 
urge  any  other  pleas  he  liked  ;  and  we  shall  see  that,  under  the 
influence  of  the  Roman  ideas  imported  by  Bracton,  a  very  large 
facility  for  urging  any  sort  of  plea  was  given.^  In  131 2  it  was 
said  that  **  the  mise  ought  to  be  joined  by  a  simple  denial  which 
offers  no  opening  of  reply  to  the  other  side  ; "  ^  but  it  was  admitted 
that,  if  it  was  not  so  joined,  the  joinder  would  be  valid  and  the 
other  side  might  reply.*  It  is  in  developments  of  the  law  as  to 
allowing  these  pleas,  as  to  the  mode  in  which  an  issue  was  reached 
through  them,  and  as  to  the  form  which  they  took,  that  the  system 
of  pleading  in  civil  cases  begins  to  part  company  with  the  system 
of  pleading  in  criminal  cases,  and  to  develop  into  a  very  technical, 
a  very  precise,  and  a  very  special  branch  of  the  common  law. 

It  will  perhaps  conduce  to  a  clearer  understanding  of  the 
history  of  the  steps  by  which  this  result  was  achieved  \{  we  glance 
at  the  principal  species  of  pleas  which  had  emerged  at  the  close  of 
this  period,  and  continued  to  exist  till  the  reform  of  the  system  of 
pleading  in  the  last  century.  The  Declaration  (Count  or  Narratio), 
in  which  the  plaintiff"  states  his  case,  is  the  first  pleading.  To 
that  declaration  there  may  be  either  a  Demurrer  or  a  Plea.  The 
defendant  who  demurs  admits  the  facts  as  stated  by  the  plaintiff", 
but  contends  that  these  facts  give  the  plaintiff"  no  cause  of  action. 
A  demurrer  therefore  raises  an  issue  of  law.  Of  pleas  there  are 
many  kinds.  The  defendant  may  plead  to  the  jurisdiction  of  the 
court ;  or  some  matter  which  will  suspend  the  action  such  as  in- 
fancy ;  or  in  abatement — that  is,  he  may  contend  that  the  writ  or 
declaration  is  formally  irregular ;  or  in  bar — that  is,  he  may  give 
an  answer  on  the  merits.  That  answer  may  take  the  form  either 
of  a  Traverse — that  is  a  denial ;  or  of  a  Confession  and  Avoidance 
— that  is,  he  admits  the  facts  as  stated  by  the  plaintiff,  but  pleads 
other  facts  which  put  a  diff"erent  legal  complexion  on  the  matter. 
To  a  traverse  the  plaintiff"  may  demur,  or  he  may  join  issue  upon 
it.  To  a  confession  and  avoidance  the  plaintiff"  may  plead  a  Re- 
plication by  way  of  traverse,  or  confession  and  avoidance ;  to  this 
replication  the  defendant  may  in  like  manner  plead  a  Rejoinder  ; 
to  the  rejoinder  the  plaintiff"  may  plead  a  Surrejoinder ;  to  the  sur- 
rejoinder the  defendant  may  plead  a  Rebutter ;  and  to  the  rebutter 

1  Vol.  ii  106 ;  below  631.  ^  Below  630. 

3Y.B.  5  Ed.  II.  (S.S.)  (1312)  28. 

*  '*  Ingham. — You  have  joined  this  mise  on  the  approvement  with  sufficient 
common  saved,  and  so  it  is  open  to  the  claimant  to  say  that  sufficient  common  was 
not  saved.  Herle. — I  might  join  mise  on  a  charter,  quit  claim,  etc.,  so  that  it  was 
open  to  ihe  other  side  to  reply  by  saying  that  his  ancestor  was  under  age  or  was 
non  compos  mentis  or  was  in  prison  at  the  time  of  the  making  of  the  charter,  yet 
the  mise  would  be  good.    And  the  mise  stood." 


630        PROCEDURE  AND  PLEADING 

the  plaintiff  may  plead  a  Surrebutter.^  Sooner  or  later  the  parties 
must  reach  either  an  issue  of  law  by  way  of  demurrer,  or  an  issue 
of  fact.  The  issue,  when  reached,  is  formally  tendered  and  ac- 
cepted ;  and  it  is  decided  by  the  court  or  the  jury  according  as  it 
is  an  issue  of  law  or  of  fact. 

This  neat  classification  of  the  forms  of  pleading  was  only 
arrived  at  gradually  in  the  course  of  the  fourteenth  and  fifteenth 
centuries.  In  the  age  of  Bracton  the  new  permission  to  litigants 
to  plead  what  pleas  they  liked  threw  the  older  rules  into  confusion  ; 
and  it  was  some  time  before  the  new  precise  rules  emerged. 
Maitland  has  pointed  out  that  ^  Justinian  had  used  words  as  to  the 
sphere  of  an  ''exceptio"  which  were  eminently  calculated  *'to 
bewilder  the  mediaeval  lawyer."^  Justinian's  words  led  him  to 
think  that  "every  kind  of  answer  to  an  action  was  an  exceptio,  and 
that  Roman  law  allowed  an  almost  unlimited  licence  to  the 
pleaders  of  excepiiones!'  The  result,  to  cite  again  a  passage 
which  has  already  been  cited,  was  that  **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."  The  pleadings  were  long, 
argumentative,  and  double ;  and  evidence  was  habitually  pleaded.* 
But  one  important  result  followed  from  the  new  facilities 
allowed  to  the  parties  in  the  statement  of  their  case.  Many 
of  the  old  formal  words  required  to  be  spoken  with  literal 
accuracy  by  plaintiff  and  defendant  gradually  disappeared.  In 
particular,  the  formal  defence  became  merely  a  collection  of  words 
of  court — formal  words  concealed  in  the  record  by  an  "etc.*  the 
meaning  of  which  had  departed.^  It  is  for  this  reason,  as  Mait- 
land has  pointed  out,  that  the  form  of  a  plea,  e.g.   in  abatement. 

1  Maitland,  P.  and  M.  ii  613  and  n.  i,  points  out  that  in  the  days  of  Bracton 
there  are  sometimes  long  debates  between  the  parties,  citing  the  Note  Book  case 
716 ;  he  says  tiat  in  the  days  of  Edward  I.  he  has  seen  no  actual  case  of  a  triplica- 
tion ;  and  that  the  rejoinder  and  rebutter  belong  to  a  later  age. 

2  P.  and  M.  ii  609  ;  vol.  ii  282-283. 

3  '•  Comparatae  autem  exceptiones  defendendorum  eorum  gratia  cum  quibas 
agitur :  saepe  enim  accidit,  ut,  licet  ipsa  actio  qua  actor  experitur  justa  sit,  tamen 
iniqua  sit  adversus  eum  cum  quo  agitur,"  Instit.  iv  13.  pr. 

^  P.  and  M.  ii  613  ;  Stephen,  Pleading  n.  38. 

"^  Y.B.  20,  21  Ed.  I.  (R.S.)  280  Loutier  said,  anruendo,  '*  Every  word  spoken  in 
court  is  not  to  be  taken  literally;  they  are  only  paroles  de  la  court;  "  cp.  Y.B. 
3  Ed.  II.  (S.S.)  35,  167;  Y.B.  17,  18  Ed.  III.  (R.S.)  584,  Shardelowe  says,  "Many 
matters  are  counted  by  way  of  form  which  are  not  traversable ;  "  P.  and  M.  ii  606 ; 
for  the  distinction  between  the  half  defence  when  the  defendant  pleaded  only  to  the 
jurisdiction  or  in  disability,  and  the  full  defence  used  in  other  cases  see  Britton  v. 
Gradon  (1693)  1  Ld.  Raym.  117;  Stephen,  Pleading  (ist  ed.)  433-434  I  '^'s  dis- 
tinction was  got  round,  Stephen  tells  us,  "by  making  defence  with  an  etc.,"  ibid 
434;  cp.  the  gradual  disuse  of  the  formal  words  of  the  Legis  Actio;  Cicero,  Pro. 
Mur.  II.  25  (cited  Greenidge,  Legal  Procedure  in  Cicero's  Time  163  n.  i),  says 
♦*  Primum  dignitas  in  tam  tenui  scientia  non  potest  esse.     Res  enim  sunt  parvae, 


PROCEDURE  AND  PLEADING         631 

is  ''quaintly  illogical,"  if  the  literal  meaning  of  the  words  used  is 
pressed;  for  the  defendant  comes  and  defends,  i.e.  denies  the 
wrong,  "  and  then,  after  suggesting  certain  facts,  will  go  on  to  ask 
the  court  whether  he  need  answer,  just  as  if  a  denial  was  no 
answer."  1  Similarly  the  form  taken  by  the  plea  of  the  general 
issue '^  suggest  that  *'a  modern  denial  suggested  by  the  practice 
of  excepting,  is  tacked  on  to  the  ancient  denial,  the  Defence  or 
Tkwertutnay."  ^ 

One  or  two  rules  from  this  age  of  Bracton  survived  in  one 
shape  or  another  in  the  later  common  law.  Thus  some  of  the 
Roman  rules  as  to  the  order  in  which  certain  exceptions  must  be 
made'^  were  repeated  in  Edward  II. 's  reign — "there  is  an  order  " 
it  was  said,  ''in  which  exceptions  are  to  be  made — first  to 
the  jurisdiction  of  the  Court ;  second  to  the  person  of  the  party  ; 
then  to  the  counting;  then  to  the  variance  between  writ  and 
count ;  then  to  the  action ; "  ^  and  they  became  the  source  of 
similar  rules  in  the  later  common  law.^  The  later  rule  of  the 
common  law,  that  a  plaintiff  might  amend  his  plea  before  it  was 
enrolled,^  appears  in  Bracton  in  the  form  of  a  rule  that  amendment 
was  possible  before  an  answer  had  been  given  to  the  plaintiffs 
claim. ^  Similarly  the  rule  that  a  defendant  can  have  only  one 
plea  in  bar,  which  lasted  till  modified  by  statute  in  1705,^  appears 

prope  in  singulis  litteris  atque  interpunctionibus  verborum  occupatae.  Deinde,  etiamsi 
quid  apud  maiores  nostros  fuit  in  isto  studio  admirationis,  id  enuntiatis  vestris 
mysteriis  totum  est  contemptum  et  abiectum." 

^  P.  and  M.  ii  608  n.  3  ;  as  Stephen  says,  op.  cit.  432,  "  this  denial  is  mere  matter 
of  form ;  for  the  defence  is  used  not  merely  when  the  plea  is  by  denial  or  traverse 
but  when  by  confession  and  avoidance  also ;  and  even  when  the  plea  does  deny, 
other  words  are  employed  for  that  purpose  besides  the  formal  defence;  "  Coke,  Co. 
Litt.  127b,  tried  to  rationalize  the  old  defence  by  saying  that  it  was  necessary  for 
the  defendant  '*  to  make  hiraself  party  to  the  matter,  and  this  is  the  reason  that  the 
defendant  in  this  and  the  like  actions  can  plead  no  plea  at  all  before  he  makes  him- 
self party  by  this  part  of  the  defence." 

2  "  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  manner  and  form  as  the  said  A.B.  hath  above  complained.  And  of  this 
the  said  CD.  puts  himself  upon  the  country." 

3  P.  and  M.  ii  618  n.  2.  ^  Ibid  612  and  n.  i. 
5  The  Eyre  of  Kent  (S.S.)  ii  38. 

s  Stephen  says,  op.  cit.  (ist  ed.)  429,  '*  the  order  of  pleading,  as  established  at 
the  present  day,  is  as  follows  : — i,  to  the  jurisdiction  of  the  court ;  2,  to  the  disabil- 
ity of  the  plaintiff  or  defendant ;  3,  to  the  count ;  4,  to  the  writ ;  5,  to  the  action.  In 
this  order  the  defendant  may  plead  all  these  kinds  of  pleas  successively.  .  .  .  But 
he  cannot  plead  more  than  one  plea  of  the  same  kind  or  degree.  ...  So  he  cannot 
vary  the  order  ;  for  by  a  plea  of  any  of  those  kinds  he  is  taken  to  waive  or  renounce 
all  pleas  of  a  kind  prior  in  the  series." 

■^  Below  637. 

8  "  Cum  autem  per  errorem  aliquando  fiat  mentio  de  tempore  indebito,  si  ipse 
petens  erraverit,  poterit  intentionem  suam  mutare  et  errorem  revocare  .  .  .  usque 
ad  litis  contestationem,  scilicet  quousque  fuerit  praecise  responsum  intentioni 
petentis,  et  ita  quod  tenens  se  posuerit  in  magnam  assisam  vel  defenderit  per 
duellum,"  f.  373a. 

^  4  Anne  c.  16  §  4. 


632        PROCEDURE  AND  PLEADING 

in  Bracton — he  must  not  use  two  sticks  to  defend  himself;^  but 
it  would  seem  that  it  was  then  a  new  rule,  the  scope  of  which  was 
doubtful  as  late  as  the  end  of  the  thirteenth  century. ^  In  fact,  at 
the  end  of  the  thirteenth  century  the  theory  of  pleading  known  to 
our  later  common  law  was  as  yet  hardly  formulated ;  and  if 
Bracton  had  been  followed  by  a  generation  or  two  of  judges, 
bound  by  their  orders  to  know  something  of  the  civil  and  canon 
law,  it  might  never  have  been  formulated.  Under  the  influence  of 
judges  of  this  school  what  happened  in  France  might  have  happened 
in  England — the  jury  might  have  come  to  be  regarded  merely  as 
witnesses,  and  not  as  a  body  to  which  the  parties  had  agreed  tto 
refer  the  determination  of  the  issue ;  and  English  law  might,  like 
continental  systems  of  law,  have  adopted  a  procedure  based  upon 
the  procedure  of  the  civil  and  canon  law.^  But  this  was  not  to  be. 
The  newer  ideas  of  pleading,  drawn  in  the  first  instance  from 
the  Roman  law,  and  necessitated  by  the  growing  complexity  of 
the  common  law,  were  reduced  to  order,  and  given  a  shape 
which  was  peculiarly  English,  because  it  was  determined  by  the 
peculiarly  English  use  of  the  jury  as  a  mode  of  proof  We  have 
seen  that  the  jury  was  put  into  the  place  of  the  older  modes  of 
proof  with  as  little  change  as  possible,*  and  that  the  fundamental 
peculiarity  of  the  English  system  of  pleading — the  settlement  by 
the  debate  of  the  parties  in  court  of  the  issue  to  be  tried — was  due 
to  the  survival  of  the  older  ideas  as  to  a  trial.  ^  For  the  same 
reason  and  in  the  same  way  the  shape  which  these  new  rules  as 
to  pleading  took  was  coloured,  in  the  first  place,  by  the  necessity 
for  adapting  the  new  ideas  as  to  pleading  to  the  requirements  of 
the  new  mode  of  proof— the  jury ;  and,  in  the  second  place,  by  some 
of  the  older  characteristics  of  the  pleading  which  had  led  up  to  the 
older  modes  of  proof  These  two  causes  determined  the  shape 
which  the  rules  of  pleading  took  in  the  fourteenth  and  fifteenth 
centuries  ;  and,  as  in  other  branches  of  the  common  law,  the  shape 
which  they  took  in  these  centuries  has  determined  their  essential 

^  Bracton  f,  400b,  cited  P.  and  M.  ii  603  n.  4 ;  in  later  law  this  rule  was  con- 
nected with  the  principle  that  the  issue  must  be  single,  Stephen,  op.  cit.  152 ;  see 
ibid  290,  457-459  ;  and  this  connection  was  being  established  early  in  the  fourteenth 
century,  below  633  ;  it  was  stated  in  this  way  by  Smith,  De  Republica  Bk.  ii 
c.  13 — "  And  if  a  man  have  many  peremptorie  exceptions  .  .  .  because  the  xii  men 
be  commonly  rude  and  ignorant,  the  partie  shall  be  compelled  to  chose  one  exception 
whereupon  to  found  his  issue." 

2  P.  and  M.  ii  603 ;  Y.BB.  20,  21  Ed.  I.  (R.S.)  456-458,  463 ;  21,  22  Ed.  I.  (R.S.) 
593  there  cited. 

2  Vol.  i  303-304,  314-320. 

*  Thus  the  verdict  of  the  jury  was  as  conclusive  as  the  result  of  any  of  the  other 
modes  of  proof — hence  the  rule  that  a  plaintiff  was  concluded  by  a  verdict  from  ever 
suing  the  defendant  on  the  same  facts  again,  though  he  was  not  thus  concluded  by 
a  non-suit  owing  to  his  non-appearance  when  the  verdict  was  to  be  given,  Bl. 
Comm.  iii  376-377. 

**  Above  628, 


PROCEDURE  AND  PLEADING         688 

characteristics   throughout   their   history.     Let    us   examine   the 
manner  in  which  these  two  causes  operated. 

(i)  The  adaptation  of  the  new  ideas  as  to  pleading  to  the  require- 
ments of  the  jury  system. 

The  facts  at  issue  were  submitted  to  the  jury  as  to  one  of  the 
older  modes  of  proof  But  the  new  modes  of  pleading  had  made 
it  possible  for  the  parties  to  bring  before  the  court  complicated 
states  of  fact ;  and  it  was  obvious  that  issues  could  not  be  placed 
before  a  reasonable  body  of  men  in  the  same  manner  as  they  were 
submitted  to  the  decision  of  the  older  arbitrary  tests.  These  two 
considerations  are  at  the  bottom  of  the  requirements,  which  under- 
lie the  rules  that  the  statements  of  the  parties  shall  be  not  only 
material  to  the  issue,  but  also  single  and  certain.^  "Each  of  the 
answers  you  give,"  said  Staunton,  J. ,  in  1 3 1 3-1 3 14,  "  is  a  conclusive 
plea  in  itself:  therefore  abide  by  one  or  the  other."  ^  "  We  do  not 
think,"  said  Herle  in  argument  in  13 10,  '*  that  you  can  be  received 
in  court  to  give  an  answer  that  comprises  two  contraries — namely, 
that  you  are  both  privy  and  stranger.  Therefore  you  must  either 
disclaim  outright  or  confess  that  you  hold  of  us."^  The  need  for 
distinguishing  between  issues  of  fact  and  law,  the  need  (occasionally) 
for  distinguishing  cases  in  which  trial  by  jury  was  applicable  from 
cases  in  which  it  was  not,'*  the  need  for  ascertaining  the  venue  from 
which  the  jury  must  come,  the  need  for  placing  the  point  at  issue 
in  an  intelligible  form  before  the  judge  and  jury,  are  at  the  bottom 
of  these  fundamental  rules  of  pleading.  Thus  the  problems  which 
originated  in  the  adaptation  of  the  newer  ideas  as  to  pleading  to  the 
old  conception  of  proof,  and  the  problems  which  originated  in  the 
fact  that  the  proof  was  now,  not  an  arbitrary  test,  but  the  finding 
of  a  body  of  reasonable  men,  are  the  factors  which  determined  the 
fundamental  rules  of  the  common  law  system  of  pleading. 

As  Stephen's  work  on  pleading  shows,  the  need  for  solving 
these  problems  determined  also  the  minuter  rules  of  the  science. 
In  fact,  it  was  his  perception  of  this  fact  which  enabled  him  to  write 
his  classic  treatise.  At  this  point  it  is  only  possible  to  note  briefly 
one  or  two  examples  of  these  rules  developed  in  this  period.:  There 
must  be  no  argumentative  pleading  ^ — plaintiff  and  defendant  must 
clearly  state  their  cases,  and  not  leave  their  meaning  to  be  gathered 

1 "  Issue,  Exitus,  a  single  certain  and  material  point  issuing  out  of  the  allegations 
and  pleas  of  the  plaintiff  and  defendant,  consisting  regularly  upon  an  affirmative  and 
negative  to  be  tried  by  twelve  men,"  Co.  Litt.  126a. 

2  The  Eyre  of  Kent  (S.S.)  iii  119 ;  cp.  Y.BB.  3,  4  Ed.  II.  (S.S.)  89  per  Hereford, 
C.J. ;  20  Ed.  III.  (R.S.)  ii  202  per  Huse;  12  Richard  II.  15 ;  above  632  n.  i. 

3Y.B.  3,  4  Ed.  II.  (S.S.)  75. 

*  See  The  King  v.  Cooke  (1824)  2  B.  and  C,  871  for  a  curious  survival  of  this 
reason  for  certainty  in  pleading. 

■^Reeves,  H.E.L.  iii624,  625, 


634        PROCEDURE  AND  PLEADING 

by  argument  or  inference.  A  common  instance  of  such  a  pleading 
was  the  case  where  a  defendant,  instead  of  denying  a  plaintiff's 
statement,  pleaded  another  fact  inconsistent  with  it.  Thus  if  A 
had  pleaded  that  one  X  was  at  Oxford  on  such  a  date,  and  B 
answered  that  X  was  at  Banbury,  there  were  really  two  issues 
raised.^  Hence  by  the  reign  of  Henry  VI.  the  courts  had  laid  it 
down  that  every  affirmative  must  be  answered  by  an  express 
negative.  Thus  B  should  plead  that  X  was  at  Banbury  ''absque 
hoc,"  or  "sans  ceo  que"  that  he  was  at  Oxford.  This  negative 
statement  was  called  a  "traverse."  On  the  same  principles  the 
court  objected  to  what  was  called  a  '*  negative  pregnant."  "  An 
instance  of  this  may  be  seen  where  in  an  action  on  the  case  against 
an  innkeeper  for  goods  lost  by  his  default,  the  defendant  pleaded 
that  they  were  not  taken  by  his  default ;  which  answer  was  con- 
strued to  be  a  denial  pregnant  with  an  admission  that  they  might 
have  been  taken,  though  not  by  his  default."  ^  The  defendant  was 
obliged  to  plead  the  exact  facts.  Similarly  a  double  plea  was  not 
as  a  rule  allowed.  "Thus  where  (in  a  real  action)  bastardy  was 
pleaded  as  to  one  acre,  and  joint  tenancy  as  to  another,  the  plea 
was  held  double  because  bastardy  went  to  both."^  The  proper 
way  was  to  plead  one  point  and  to  state  the  other  by  way  of 
"protestation" — always  provided  that  the  facts  stated  in  the  plea 
were  not  inconsistent  with  the  facts  stated  in  the  protestation."^ 
The  rule  against  "  departures  "  in  pleading  depended  upon  exactly 
the  same  principle.  Everything  which  was  stated  in  subsequent 
pleadings  must  support  the  facts  stated  in  the  first  pleading — 
otherwise  no  certain  issue  could  be  reached.^ 

(ii)  The  influence  of  some  of  the  characteristics  of  the  older  system 
of  pleading. 

Both  the  older  and  the  newer  modes  of  pleading  were  oral. 
"You  are  not  in  Court  Christian,"  said  Staunton,  J.,  in  1313-1314 
"where  everything  you  plead  must  needs  be  in  writing ;"  ^  and 

1  As  Reeves  says,  loc.  cit.,  where  an  issue  depended  upon  two  affirmatives  it  was 
difficult  to  decide  the  venue  from  which  the  jury  must  come. 

2  Reeves,  H.E.L.  ii  627;  as  he  says,  "There  seems  to  be  this  sort  of  affinity 
between  an  argumentative  plea  and  a  negative  pregnant ;  that  as  the  latter  is  a 
negative  pregnant  with  an  affirmative,  so  is  the  former  an  affirmative  pregnant  with 
a  negative ;  and  the  cure  for  both  is  in  most  cases  to  add  or  substitute  a  direct  denial 
of  the  substance  of  the  plea  or  declaration  which  is  to  be  answered." 

3  Ibid ;  see  p.  628  for  some  exceptional  cases  in  which  a  double  plea  was  allowed. 
^  Ibid  628  ;  "  You  ought  to  make  protestation  of  the  non-tenure  and  then  answer 

in  chief  as  you  are  doing,"  Y.B.  5  Ed.  II.  (S.S.)  (1312)  32  per  Passeley;  see  also 
Y.BB.  6  Ed.  II.  (S.S.)  170;  8  Ed.  II.  (S.S.)  122,  123,  125  ;  20  Ed.  III.  (R.S.)  i  292. 

^  Reeves,  H.E.L.  ii  629,  gives  the  following  instance,  "  A  tenant  pleaded  a  devise 
to  himself;  the  plaintiff  repUed  that  the  devisor  was  an  infant;  the  tenant  rejoined 
that  infants  might  devise  by  custom  ;  this  was  held  a  departure  from  his  plea ;  which 
alleged  a  devise  generally." 

6  The  Eyre  of  Kent  (S.S.)  ii  25. 


PROCEDURE  AND  PLEADING         685 

many  of  the  fundamental  rules  of  the  common  law  system  of  plead- 
ing were  made  for  and  adapted  to  this  system  of  oral  pleading. 
"  The  abandonment  of  the  practice  of  oral  pleading,"  says  Stephen/ 
"led  to  no  departure  from  the  ancient  style  of  allegation.  The 
pleading  has  ever  since  continued  to  be  framed  upon  the  old 
principles  and  to  pursue  the  same  forms  as  when  it  was  merely 
oral.  The  parties  are  made  to  come  to  issue  exactly  in  the  same 
manner  as  when  really  opposed  to  each  other  in  verbal  altercation 
at  the  bar  of  the  court ;  and  all  the  rules  which  the  justices  of 
former  times  prescribed  to  the  actual  disputants  before  them  are 
as  far  as  possible  still  enforced  "  with  respect  to  the  later  written 
pleadings.  And  this  system  of  oral  pleading  had  one  great  advan- 
tage over  the  later  system  of  written  pleadings.  It  made  for  far 
greater  freedom  in  the  statement  of  the  case.  A  painful  accuracy 
was  no  doubt  required  in  the  wording  of  the  writ  and  count,^  in 
the  correspondence  between  writ  and  count,  and  in  the  observance 
of  the  elaborate  rules  of  process.  But  when  all  objections  to  the 
writ  and  process  had  been  disposed  of,  and  when  the  parties  were 
fairly  before  the  court,  the  debate  between  the  opposing  counsel, 
carried  on  subject  to  the  advice  or  the  rulings  of  the  judge,  allowed 
the  parties  considerable  latitude  in  pleading  to  the  issue. ^  Suggested 
pleas  will,  after  a  little  discussion,  be  seen  to  be  untenable;  a  pro- 
position to  demur  will,  after  a  few  remarks  by  the  judge,  be  obviously 
the  wrong  move.  The  counsel  feel  their  way  towards  an  issue 
which  each  can  accept  and  allow  to  be  enrolled.^  In  fact,  in  the 
earlier  part  of  this  period  it  was  not  the  strictness  of  the  rules  of 
pleading  which  hindered  justice,  it  was  rather  the  strictness  and 
elaboration  of  the  rules  of  process. 

This  looseness  in  the  rules  of  pleading  was  increased,  perhaps 
almost  necessitated,  by  the  fact  that  the  law  of  evidence,  as  we 
understand  it,  hardly  as  yet  existed.  So  far  are  we  from  the  rule 
of  later  law  that  evidence  must  not  be  pleaded,  that  we  might 
almost  say  that  oral  evidence  was  generally  brought  to  the  notice 
of  the  court  by  pleading  it.^     One  or  two  instances  (^)  of  the 

^  Pleading  (5th  ed.)  29. 

2  "  It  may  happen  in  their  case  as  it  happened  here  in  Brompton's  time  in  the  case 
of  a  poor  woman  who  brought  a  writ  and  counted  through  a  woman  who  had  com- 
mitted felony.  And  on  this  point  she  was  challenged,  and  the  whole  court  had  pity 
on  the  poor  woman;  and  yet  she  could  not  be  helped,  though  if  she  had  omitted 
the  woman  guilty  of  felony,  her  writ  would  have  been  good,"  Y.B.  3,  4  Ed.  II.  (S.S.) 
33-34  per  Hereford,  C.J. 

3  ••  It  is  not  right  that  every  word  a  man  says  should  bear  force,"  per  Hereford, 
C.J.,  Y.B.  3,  4  Ed.  II.  (S.S.)  42. 

4Y.BB.  3  Ed.  II.  (S.S.)  Ixvi-lxviii ;  3,  4  Ed.  II.  (S.S.)  50,  134,  where  it  is  clear 
that  the  pleadings  were  entered  after  discussion ;  5  Ed.  II.  (S.S.)  (1312)  195—"  Toudeby. 
— We  have  pleaded  to  the  issue  of  the  plea,  and  the  parties  have  a  day  and  are  gone 
away,  etc.  Bereford,  C.J. — We  are  not  recording  this  plea,  and  it  is  for  us  to  see 
if  this  issue  be  receivable  by  law." 

5  Thayer,  Evidence  114-115. 


636        PROCEDURE  AND  PLEADING 

freedom  of  action  allowed  to  counsel  under  this  system  of  pleading, 
and  {b)  of  the  manner  in  which  evidence  was  brought  before  the 
court,  will  illustrate  some  of  the  salient  characteristics  of  the 
system  of  pleading  as  used  in  this  period. 

(a)  Instances  of  the  mode  in  which  an  issue  was  reached  by 
discussion  at  the  bar  under,  the  superintendence  of  the  court  will 
be  found  on  almost  every  page  of  the  Year  Books.  As  a  simple 
illustration  I  will  take  a  case  of  the  year  1309.^  "Alice  brought 
her  writ  of  entry  sur  disseisin  against  a  Prior,  and  counted  on  her 
own  seisin  as  of  fee  and  of  right  in  time  of  peace,  saying,  '  Into 
which  the  Prior  has  no  entry  save  after  {post)  the  disseisin  which 
one  G  did  to  Alice.'  Passeley.  —  'She  was  never  seised  of  fee 
and  of  right  in  such  wise  that  she  could  be  disseised.*  Stanton, 
J. — 'That  is  no  good  answer  in  this  writ,  but  it  would  be  a  good 
answer  to  say  that  G.  did  not  disseise  her.'  Friskeney  argued 
that  Passeley's  answer  was  receivable  because,  if  the  plaintiffs 
count  claiming  as  of  fee  and  of  right  were  accepted  by  them,  they 
might  be  estopped  in  any  subsequent  proceedings  from  denying 
that  she  held  as  of  fee  and  of  right.  Stanton,  J. — 'What  you  say 
is  wrong.  What  enrolment  are  we  to  have  in  this  case  ?  I  think 
it  should  be,  "  not  so  seised  that  she  could  be  disseised,"  so  your 
averment  is  not  receivable.'  Passeley. — 'The  enrolment  shall  be, 
"  not  so  seised  in  such  manner  as  she  demands  so  that  she  could 
be  disseised."'  To  this  all  agreed."  When  an  answer  had  been 
given  counsel  would  sometimes  go  out  to  imparl  in  order  to  con- 
sider the  new  facts,  probably  in  consultation  with  their  clients, 
and  would  then  give  a  reply. ^  The  court  would  sometimes  warn 
counsel  of  the  risk  of  abiding  judgment  on  his  plea.^  Sometimes 
it  would  suggest  a  plea  to  meet  difficulties  suggested  by  counsel 
in  argument ;  *  and  the  fact  that  the  court  advised  a  particular 
mode  of  pleading  was  once  stated  as  a  reason  why  counsel 
adopted  it.^     But  sometimes  the  court  was  only  wise  after  the 

1  Y.B.  2,  3  Ed.  II.  (S.S.)  136,  137;  cp.  Y.B.  6,  7  Ed.  II.  (S.S.)  20,  46-48  for 
other  illustrations. 

2  Y.BB.  3,  4  Ed.  11.  (S.S.)  44 ;  6  Ed.  II.  (S.S.)  220;  20  Ed.  III.  (R.S.)  ii  34. 

3  "  Bereford,  C.J. — Do  you  want  to  abide  judgment  ?  Scrope. — Take  our  words 
just  as  we  say,  and  we  shall  abide  willingly.  .  .  .  Bereford,  C.J. — Take  good 
care  for  you  can  have  one  meaning  and  perhaps  we  may  have  another." 

-*  Y.B.  18  Ed.  III.  (R.S.)  152,  Sharshulle,  J.,  "  For  that  matter  I  should  hold 
him  to  be  a  foolish  pleader  if  he  pleaded  to  the  demandant's  action  within  the 
liberty,  but  he  would  say  that  he  ought  not  to  answer  there  because  the  tenements 
are  outside  the  liberty,  and  upon  that  he  ought  to  abide  judgment,  whereupon,  if 
judgment  were  rendered  against  him,  he  would  have  the  Assize;"  Y.B.  19  Ed.  III. 
(R.S.)  164  a  plea  is  settled  by  the  court;  and  see  Y.B.  3,  4  Ed.  II.  (S.S.)  88,  and 
121  per  Bereford,  C.J. 

5  Y.B.  II,  12  Ed.  III.  (R.S.)  88,  Trewith,  after  some  pleading,  seeing  that  the 
court  was  against  the  writ,  demanded  that  it  should  abate.  "You  shall  not  get  to 
that,"  said  P anting ;  "  you  have  pleaded  higher,  and  thereby  affirmed  the  writ  as 
good."  "  I  vouch  the  record  of  the  roll,"  said  Trewith,  "  that  it  was  not  of  my 
own  accord,  but  by  the  advice  of  the  court," 


PROCEDURE  AND  PLEADING         687 

event,  and  delivered  a  lecture  upon  what,  in  its  opinion,  would 
have  been  the  proper  mode  of  pleading.^  Counsel  once  argued 
that  what  a  party  has  pleaded  and  passed  over  without  notice  by 
the  court  is  wholly  immaterial ;  and  though  the  court  denied  the 
proposition  as  thus  broadly  stated,  there  was  probably  a  consider- 
able element  of  truth  in  it.'^  A  survival  of  the  old  idea  that  a 
pleader's  words  were  not  binding  till  avowed  by  his  client  or 
attorney  no  doubt  made  it  the  more  possible  to  treat  pleas  as 
capable  of  amendment  till  one  was  reached  by  which  counsel 
would  abide.  ^  Whether  or  not  this  was  so  it  is  quite  clear,  as 
Reeves  says,*  that  everything  advanced  by  counsel  was,  in  the 
first  instance,  "  treated  as  matter  only  in  fieri  which  upon  dis- 
cussion and  consideration  might  be  amended,  or  wholly  abandoned, 
and  then  other  matter  resorted  to,  till  at  length  the  counsel  felt 
himself  on  such  grounds  as  he  could  trust  Where  he  finally 
rested  his  cause,  that  was  the  plea  which  was  entered  upon  the 
roll,  and  abided  the  judgment  of  an  inquest  or  of  the  court,  ac- 
cording as  it  was  a  point  of  law  or  fact."  In  1388  there  was  a 
dispute  as  to  whether  a  plea  pleaded  two  weeks  before  had  been 
entered  on  the  roll.  It  had  not  been  entered;  "and  the  Justices 
said  that  they  would  not  record  so  strictly,  and  said  that  if  they 
ought  to  record  every  manner  of  plea  that  was  pleaded  at  the  bar, 
that  their  record  would  be  too  hard."^  We  may  note,  too,  that 
the  complications  of  process  sometimes  gave  to  a  pleader  a  chance 
of  correcting  an  error  which  might  otherwise  have  proved  fatal. 
If  the  case  were  put  without  a  day  by  a  protection,  or,  perhaps, 
by  a  default,  the  pleading  must  begin  anew  ;  and  mistakes  made 
on  the  occasion  of  the  first  pleading  could  then  be  amended.^ 

^Y.B.  14  Ed.  III.  (R.S.)  60,  Scrope  was  on  the  bench  and  said:  "What  you 
say  as  to  two  bastards  you  say  well,  but,  in  God's  name,  you  might  have  saved 
yourself  against  her  by  way  of  replication  .  .  .  and  this  replication  must  have  been 
entered  on  the  roll." 

2  Y.B.  II,  12  Ed.  III.  (R.S.)  42,  Trewith,  "  Whatever  thing  a  party  may  plead 
and  pass  over  without  regard  of  the  court  and  join  issue  on  a  plea,  then  nothing 
shall  be  recorded  except  the  issue  ;  for  of  that  which  was  spoken  and  pleaded  before 
and  waived  without  award,  nothing  shall  be  entered  on  the  roll ; "  Hillary,  J., 
"You  say  wrong;"  Y.B.  3  Ed.  II.  (S.S.)  129,  Bereford,  C.J.,  "You  did  not  demur 
there.  So  you  cannot  take  advantage  of  that;"  cp.  Y.BB.  3,  4  Ed.  II.  (S.S.)  42, 
cited  above  635  n.  3 ;  and  19  Ed.  III.  (R.S.)  332,  where  counsel  is  allowed  to 
amend  the  count,  because  no  exception  had  as  yet  been  taken  to  it. 

3  Y.B.  3  Ed.  II.  (S.S.)  129  and  Introd.  Ixvi,  Ixvii;  "  Tr^'w. —Demanda  si  lour 
attorney  ne  voleit  ceo  que  Kels.  avoit  dist,  et  I'attorney  luy  avowa,"  Y.B.  7  Ed. 
III.  Pasch.  pi.  15  (p.  17);  and  see  Y.B.  6,  7  Ed.  II.  (S.S.)  xx  for  other  illustrations. 

4  H.E.L.  ii  223 ;  cp.  Y.B.  18,  19  Ed.  III.  (R.S.)  486. 
»Y.B.  12  Rich.  II.  19. 

*Y.B.  3  Hy.  VI.  Pasch.  pi.  10,  Formedon  against  J  and  A  his  wife;  the  de- 
mandant counted  against  them  on  a  gift  in  tail  made  by  deed  to  the  ancestor  of 
the  demandant.  Paston  by  mistake  said  by  virtue  of  which  the  donor  was  seised, 
whereas  he  should  have  said  donee;  the  husband  made  default  then  and  at  the 
petite  cape ;  the  wife  prayed  to  be  received  to  defend  her  title,  and  relied  on  the 
faulty  count.  Paston  offered  to  plead  anew,  and  he  and  Martin  argued  that  this 
could  be  done ;  Babington  contra ;  Cokain  agreed  with  Paston  and  Martin,  putting 


638        PROCEDURE  AND  PLEADING 

(J))  The  law  knew  the  preappointed  witness  to  deeds  or 
charters :  it  knew  also  the  written  evidence  of  the  deeds,  fines,  or 
other  writings.^  It  did  not  as  yet  recognize  the  independent 
witness  called  to  testify  to  the  facts  of  which  he  had  knowledge ; 
indeed,  as  Thayer  has  shown,  the  strictness  with  which  the  laws 
against  maintenance  were  interpreted  effectually  discouraged  him.^ 
The  evidence,  which  in  modern  times  is  given  by  such  witnesses, 
was  at  this  period  supplied  partly  by  the  jury,  which  the  law  was 
careful  to  draw  from  the  neighbourhood  of  the  occurrence,^  partly 
by  the  custom  of  pleading  such  evidence.  For  this  reason 
questions  turning  upon  the  "venue"  of  the  jury  are  of  much  im- 
portance in  the  Year  Books ;  and  for  the  same  reason  counsel 
deem  themselves  to  be  in  a  manner  responsible  for  the  statements 
which  they  make  to  the  court.  They  examine  their  clients 
before  they  put  forward  a  plea.*  They  even  decline  to  plead  a 
fact  as  to  the  truth  of  which  they  have  doubts.*  Sometimes, 
indeed,  we  see  a  distinction  taken  between  the  plea  and  the 
evidence  for  the  plea  when  it  is  convenient  to  say  that  a  statement 
is  only  evidence  and  not  really  a  plea.^  But,  as  a  general  rule, 
it  would  be  true  to  say  that  such  distinct  things  as  the  pleadings, 
the  statements  of  counsel,  and  the  evidence  for  those  statements 
are  rarely  distinguished  in  the  Year  Books.  ^  To  this  state  of 
things  must  be  ascribed  some  peculiar  doctrines  in  the  law  of 
pleading.  It  was  clearly  difficult  under  these  circumstances  to 
bring  to  the  notice  of  the  jury,  who  knew  something  of  the  facts, 
the  exact  import  of  similar  yet  legally  distinct  states  of  fact — 
especially  having  regard  to  the  rule  that,  if  the  special  facts  really 
only  amounted  to  the  general  issue,  the  general  issue  only  could 
be  pleaded,  and  the  case  therefore  necessarily  left  to  the  jury.  It 
was  equally  difficult  to  separate  clearly  matters  of  fact  from  ques- 

the  case  of  a  protection  and  a  resummons,  "  Mettons  que  apres  le  count  le  parol 
uste  e^te  mis  sans  jour  per  protection,  et  ore  le  demandant  ust  sue  resummons 
envers  le  tenant,  ne  duist  le  demandant  or  count  de  novel  ?  j  o  dis  que  si  pur  ceo 
que  parol  serra  my  sans  jour  pur  ceo  fuit  le  p  emier  count  alle  et  detern  ine :  et  en 
resommons  il  serra  pris  sicome  nul  count  ust  jamais,  et  sicome  il  n'est  jamais  eu 
nul  auter  breve  dtvant  eyant  regard  al  count;  Sic  hie ; '  cp.  Y.BB.  6  Ed.  II.  (S.S.) 
i  1-6  ;  5  Hy.  VII.  Trin.  pi.  4 — this  shows  how  conceivably  rules  of  process  might 
be  used  to  save  the  consequences  of  an  otherwise  fatal  error. 

iSee  Y.BB.  6,  7  Ed.  II.  (S.S.)  210— note  from  the  record;  6  Ed.  II.  (S.S.)  199 
— a  fine ;  ibid  235 — a  writing. 

2  1  hayer,  Evidence  125-129  ;  vol.  i  334-335. 

«Vol.  i  332.  ^  Y.B.  14  Ed.  III.  (R.S.)  248. 

'Y.B.  38  Hy.  VI.  Pasch.  pi.  13;  below  646;  it  is  only  occasionally — °.g. 
as  to  the  question  whether  a  given  person  is  alive,  that  proof  must  be  made  by 
witnesses  and  not  by  averment,  Y.B.  6,  7  Ed.  II.  (S.S.)  59;  vol.  i  304-305. 

6  Y.B.  14,  15  Ed.  ill.  (R.S.)  346  ;  and  see  Y.B.  3,  4  Ed.  II.  (S.S.)  51. 

'  See  Longo  Quinto  58  cited  Thayer,  Evidence  133,  134 ;  in  Y.B.  6  Ed.  II.  (S.S.) 
198  Scrope  states  facts  in  evidence  to  the  Assize ;  and  in  Y.B.  6,  7  Ed.  II.  (S.S.)  77 
Scotre  does  the  like ;  on  the  other  hand,  in  Y.B.  6  Ed.  II.  (S.S.)  i  51,  52,  54,  a  distinc- 
tion is  drawn  between  the  evidence  and  the  pleading. 


PROCEDURE  AND  PLEADING         639 

tions  of  law  under  a  system  in  which  the  evidence  for  the  facts 
stated  in  the  pleadings  and  the  arguments  of  counsel  were  all  in- 
volved in  the  pleadings  themselves,  and  only  extricated  gradually 
in  the  course  of  the  discussion  which  settled  the  issue  to  be  tried. 
To  these  difficulties  are  due  the  doctrine  of  colour  in  pleading  ^ 
and  the  demurrer  to  evidence.^  Both  these  doctrines  were  due 
to  a  desire  to  withdraw  the  case  from  the  jury  and  to  submit  it  to 
the  court,  in  cases  in  which  it  was  thought  expedient  to  have  a 
clear  decision  upon  the  legal  consequences  of  certain  states  of 
fact.  The  older  modes  of  proof  necessarily  gave  a  "general 
verdict ; "  and  it  was  equally  possible  for  the  jury,  which  had 
stepped  into  their  place,  to  return  a  general  verdict.  Under  a 
system  which  prevented  the  judge  from  clearly  directing  the  jury 
as  to  the  points  of  law  involved  in  the  case,  the  growing  com- 
plexity of  the  law  made  it  very  dangerous  to  allow  the  jury  to 
return  such  a  verdict.  Therefore  these  methods  were  devised  for 
ousting  the  jury,  and  for  getting  a  point  of  law  decided  by  the 
court.  Both  these  doctrines  lived  on  in  the  law  long  after  their 
original  raison  d'etre  had  disappeared.  Neither  can  be  under- 
stood, unless  we  understand  the  peculiar  difficulties  involved  in 
the  conduct  of  a  case  in  court  according  to  the  system  of  pleading 
recognized  in  the  fourteenth  and  fifteenth  centuries. 

We  must  now  turn  to  the  history  of  the  process  by  which  this 
oral  system  of  pleading  in  court  gave  place  to  the  later  system  ot 
written  pleadings  exchanged  by  the  parties  or  their  attorneys  out 
of  court. 

(2)   The  introduction  of  written  pleadings  and  its  effects. 

Towards  the  close  of  this  period  this  system  of  oral  pleading 
began  to  be  superseded  by  the  system  of  written  pleadings,  which, 

1  For  this  doctrine  see  Thayer,  Evidence  ii8,  iig;  Reeves,  H.E.L.  ii  629-632. 
Suppose,  says  Reeves,  A  enfeoffed  B  of  land,  and  an  assize  was  brought  by  a 
stranger  against  B,  B  could  not  plead  these  facts  simply,  as  such  plea  would 
amount  only  to  the  general  issue ;  he  would  be  obliged  to  plead  the  general  issue, 
and  the  case  would  be  left  to  the  jury.  He,  therefore,  by  a  wholly  fictitious  aver- 
ment, gave  the  plaintiff  colour,  i.e.  a  prima  facie  cause  of  action.  Thus,  after 
pleading  that  A  had  enfeoffed  him,  he  would  further  plead,  "  that  the  plaintiff 
claiming  by  colour  of  a  deed  of  feoffment  made  by  the  said  feoffor,  before  the 
feoffment  made  to  the  said  tenant  (by  which  deed  no  right  passed)  entered,  upon 
whom  the  said  tenant  entered."  This  left  a  point  of  law  for  the  court,  i.e.  the 
validity  of  the  alleged  first  deed,  and  thus  the  case  was  withdrawn  from  the  jury; 
for  an  illustration  see  Y.B.  3  Ed.  II.  (S.S.y  156 ;  and  for  a  later  illustration  see 
Corbet's  Case  {1600)  i  Co.  Rep.  at  f.  79a ;  for  the  history  of  this  doctrine  see  Bk.  iv 
Pt.  II.  c.  7  §  2. 

2  This  is  explained  by  Eyre,  C.J.,  delivermg  the  opinion  of  the  judges  to  the 
House  of  Lords,  in  Gibson  and  Johnson  v.  Hunter  (1793)  2  Hy.  Bl.  187,  at  p.  206: 
"  If  the  party  wishes  to  withdraw  from  the  jury  the  application  of  the  law  to  the 
fact,  and  all  consideration  of  what  the  law  is  upon  the  fact,  he  then  demurs  in  law 
upon  the  evidence,  and  the  precise  operation  of  that  demurrer  is  to  take  from  the 
jury,  and  to  refer  to  the  judge,  the  application  of  the  law  to  the  fact ;  "  for  an  illus- 
tration see  Reniger  v.  Fogossa  (1552)  Plowden  at  p.  4. 


640        PROCEDURE  AND  PLEADING 

when  complete,  were  entered  on  the  record.  The  practice  in  its 
final  form  is  thus  described  by  Stephen  :  ^  '*  The  present  practice 
is  to  draw  them  (the  pleadings)  up  in  the  first  instance  on  paper, 
and  the  attorneys  of  the  opposite  parties  mutually  deliver  them  to 
each  other  out  of  court  .  .  .  these  paper  pleadings  at  a  subsequent 
period  are  entered  on  record"  This  change,  it  may  be  said,  is 
merely  a  mechanical  change ;  but,  as  Maine  has  noted,  ^  in  refer- 
ence to  another  change  of  a  similarly  mechanical  character — regis- 
tration of  title — the  effect  of  such  a  change  on  the  fabric  of  the 
law  may  be  considerable.  This  particular  change  had  in  fact 
very  large  effects  upon  the  conduct  of  litigation ;  for  it  helped  to 
distinguish  between  the  nature  of  various  acts  and  the  duties  of 
the  actors  which  had  never  been  clearly  distinguished  under  the 
older  system.  Owing  to  it,  it  became  more  possible  to  distinguish 
the  pleading  which  defines  the  issue  from  the  explanatory  state- 
ments of  counsel  and  their  arguments  upon  points  of  law  on  the 
one  side,  and  from  the  evidence  for  the  facts  pleaded  or  stated 
on  the  other.  This  differentiation  of  functions  had  considerable 
effects  upon  the  manner  in  which  the  law  was  developed  in  later 
centuries.  In  the  first  place,  I  shall  say  something  of  the  manner 
in  which  these  changes  were  brought  about,  and  in  the  second 
place,  I  shall  summarize  their  effects. 

(i)   The  change  from  oral  to  written  pleadings. 

The  stages  by  which  this  change  was  brought  about  are 
somewhat  obscure,  and  probably  they  will  never  be  quite 
clearly  ascertained ;  for  we  shall  see  that  it  was  gradually 
effected  by  means  of  a  number  of  small  changes  in  the  practice 
both  of  the  courts  and  of  the  offices  of  the  courts.  But  small 
and  gradual  modifications  of  the  practice  of  a  court  or  an  office 
rarely  get  into  the  books.  They  are  learnt  by  the  practitioners 
whom  these  changes  concern,  and  the  rules  are  so  obvious 
to  them  that  it  hardly  seems  necessary  to  state  them.  Thus  by 
a  series  of  small  changes,  spread  over  perhaps  a  couple  of  centuries, 
a  very  different  practice  will  be  established.  But  the  change  will 
have  been  made  so  gradually,  and  spread  over  so  long  a  period, 
that  all  accurate  memory  of  the  stages  by  which  it  has  been 
effected  will  soon  be  lost.  All  that  the  books  will  contain  will  be 
a  note  of  the  change  made  and  an  occasional  conjecture  as  to  its 
causes. 

The  modern  practice  according  to  which  the  attorneys  of  the 
parties  delivered  paper  pleadings  which  were  subsequently  entered 
on  the  record,  is  so  obviously  different  from  the  old  fashion  of  oral 
pleading  which  has  just  been  described,  that  it  might  almost  be 
supposed  that  the  two  systems  had  very  little  relation  to  each 

*  Pleading  (5th  ed.)  27-28.  ^  Early  Law  and  Custom  357. 


PROCEDURE  AND  PLEADING         641 

other.  But  they  are  in  fact  intimately  related.  We  have  seen 
that  most  of  the  fundamental  rules  apph'cable  to  these  written 
pleadings  were  originally  devised  for  the  older  system  of  oral 
pleading ;  and  that  some  of  the  rules  were  much  better  suited  to 
the  earlier  than  the  later  system.^  Similarly  the  style  in  which 
the  later  written  pleadings  are  drawn  up  obviously  originated  in 
the  days  when  pleadings  were  oral,  and  entered  on  the  plea  roll 
as  the  case  proceeded.  They  ''pursue  the  style  in  which  the 
record  itself  was  drawn  up.  Like  it  they  are  expressed  in  the 
third  person — and  state  the  form  of  action,  the  appearance  of  the 
parties,  and  sometimes  the  continuances  and  other  acts  and  pro- 
ceedings in  court.  They  are  framed,  in  short,  as  if  they  were 
extracts  from  the  record — though  the  record  is  by  the  present 
practice  not  drawn  up  till  a  subsequent  period,  and  is  then  a 
transcript  from  them.''  ^  Similarly  the  title  of  the  earliest  col- 
lections of  precedents  in  pleading — The  Books  of  Entries  ^ — tell  the 
same  tale.  It  is  clear,  then,  that  the  two  systems  are  intimately 
related  ;  and  the  intimacy  of  the  relation  is  a  sure  indication  that 
the  change  is  the  result  of  a  series  of  small  changes  in  practice  ex- 
tending over  a  long  period. 

We  shall  see  that  the  remote  beginnings  of  the  change  must 
probably  be  dated  from  the  early  years  of  the  fifteenth  century ; 
and  that  the  tendency  of  the  practice  of  the  courts  was  making  to- 
wards this  change  during  the  rest  of  that  century.  But  we  shall 
see  that  it  was  not  fully  accomplished  till  the  sixteenth  century  ; 
and  that  its  full  accomplishment  owed  something  to  the  extensive 
changes  in  law  and  practice  which  came  with  that  century.  I 
shall  therefore  divide  the  history  of  this  subject  into  these  two 
periods,  and  shall  deal  {a)  with  the  beginnings  of  this  change  in  the 
later  part  of  this  period ;  and  (J?)  with  its  completion  in  the 
sixteenth  century. 

{a)  It  is  probable  that  the  earliest  modification  of  the  system 
of  oral  pleading  was  occasioned  by  a  growth  in  the  technical  strict- 
ness of  the  rules  governing  the  form  of  the  pleadings.  That  these 
qualities  had  begun  to  mark  the  pleadings  of  the  early  years  of  the 
fifteenth  century  is  noted  both  by  Coke  and  Hale.  They  agree 
that  the  art  of  pleading  had  approached  perfection  in  the  reign  of 
Edward  III.  It  was  more  exact  than  in  the  reign  of  Edward  I., 
and  it  had  not  acquired  the  vices  of  technicality  and  prolixity 
which    characterized    it    in  later  ages.'*     But   from  the   reign  of 

^  Above  633,  634,  635,  638-639.  ^  Stephen,  Pleading  (ist  ed.)  35. 

3  For  these  see  Bk.  iv.  Pt.  I.  c.  5. 

*  "  In  the  reign  of  Edward  III.  pleadings  grew  to  perfection  both  without 
lameness  and  curiosity  .  .  .  and  therefore  truly  said  that  reverend  justice  Thirning 
in  the  reign  of  H.  4  that  in  the  time  of  E.  3  the  law  was  in  an  higher  degree  than  it 
had  been  any  time  before;  for  (saith  he)  before  that  time  the  manner  of  pleading 

VOL.   III. —41 


642        PROCEDURE  AND  PLEADING 

Henry  VI.  onwards  Hale  notes  a  deterioration.  *'  Though  plead- 
ings in  the  times  of  those  kings  (Henry  VI.,  Edward  IV.,  and 
Henry  VII.)  were  far  shorter  than  afterwards,  especially  after 
Henry  VIII.,  yet  they  were  much  longer  than  in  the  time  of  king 
Edward  III.  ;  and  the  pleaders,  yea  and  the  judges  too,  became 
somewhat  too  curious  therein.  So  that  that  art  or  dexterity  of  plead- 
ing, which  in  its  use,  nature  and  design,  was  only  to  render  the  fact 
plain  and  intelligible,  and  to  bring  the  matter  to  judgment  with  a 
convenient  certainty,  began  to  degenerate  from  its  primitive  sim- 
plicity, and  the  true  use  and  end  thereof,  and  to  become  a  piece  of 
nicety  and  curiosity."  ^  The  Year  Books  of  these  three  reigns 
bear  out  Hale's  statements.  A  large  number  of  cases  turned 
simply  on  matters  of  form.^  A  case  of  146 1  shows  that  the  court 
sometimes  consulted  the  prothonotaries  as  to  the  proper  form  of 
a  plea  ;  ^  and  no  doubt  a  form  of  plea  which  was  sanctioned  after 
such  a  consultation  would  easily  harden  into  a  fixed  rule.*  The 
same  case  of  1461  shows  that  the  judges  were  reluctant  to  depart 
from  a  precedent  laid  down  in  the  Novae  Narrationes,  though 
apart  from  this  precedent  they  would  have  come  to  another  con- 
clusion.^ This  indeed  is  prophetic  of  the  rigidity  which  will  be 
introduced  when  the  system  of  written  pleadings  is  fully  established  ; 
but  as  yet  this  is  in  the  future. 

It  is  clear,  however,  that  this  growth  of  formalism  was  making 
it  increasingly  difficult  to  maintain  the  old  system  of  oral  pleading 
in  its  original  form.  Counsel  could  not  be  expected  to  compose 
and  speak  an  elaborate  plea  on  the  spur  of  the  moment.  The 
difficulty  was  met,  as  Reeves  has  pointed  out,^  by  a  modification 
in  the  manner  of  recording  pleas  on  the  rolls.  The  court  did  not, 
as  we  have  seen,  treat  as  conclusive  anything  said  by  counsel  un- 

was  but  feeble  in  comparison  of  that  it  was  afterward  in  the  reign  of  the  same  king," 
Co.  Litt.  304b  ;  "  the  judges  and  pleaders  were  very  learned,  and  the  pleadings  are 
somewhat  more  polished  than  those  in  the  time  of  Edward  I.  Yet  they  have  neither 
uncertainty,  prolixity,  nor  obscurity.  They  were  plain  and  skilful  ...  so  that  at 
the  latter  end  of  this  king's  reign  the  law  seemed  to  be  near  its  meridian,"  Hale, 
H.C.L.  (6th  ed.)  198-199. 

^  H.C.L.  211-212  ;  to  the  same  affect  Co.  Litt.  304b. 

2  Reeves,  H.E.L.  ii  619-653  ;  at  p.  620  he  says  :  "  Almost  everything  substantial 
in  pleading,  which  was  practised  from  this  time  down  to  the  present,  was  settled 
by  judicial  determinations  in  the  reigns  of  these  kings." 

3Y.B.  39  Hy.  VL  Mich.  pi.  43  (p.  30);  cp.  Y.B.  2  Ed.  IV.  Mich.  pi.  14  for 
another  case  in  which  the  prothonotary  testified  as  to  the  usual  course  of  pleadings. 

4  For  other  illustrations  see  Longo  Quinto  pp.  22,  23  ;  Y.B.  33  Hy.  VI.  Mich, 
pi.  40 ;  for  cases  in  which  the  clerks  either  ask  or  give  advice  in  matters  of  process 
or  pleading,  see  Y.BB.  11,  12  Ed.  IIL  (R.S.)  426,  434;  13,  14  Ed.  lU.  (R.S.)  258, 
310;  14,  15  Ed.  in.  (R.S.)  74  ;  20  Ed.  III.  (R.S.)  ii  512. 

5  Y.B.  39  Hy.  VI.  Mich.  pi.  43  (p.  30). 

"  H.E.L.  ii  621-622  ;  as  Reeves  points  out,  ibid  398-399,  the  view  expressed  by 
Gilbert,  Origins  of  the  King's  Bench  (ed.  1763)  315,  that  the  system  of  paper  plead- 
ings originated  in  the  statute  of  Edward  III.  which  required  pleadings  to  be  in  Eng- 
lish, vol.  ii  477-478,  rests  on  no  evidence. 


PROCEDURE  AND  PLEADING         643 

less  it  was  entered  on  the  roll  ;  ^  and  even  if  a  plea  were  entered 
on  the  roll,  the  roll  might  be  amended  the  same  term,^  or  perhaps 
even  later  with  the  leave  of  the  court,'  provided  final  judgment 
had  not  been  given.*  Thus  before  a  plea  was  entered  on  the  roll 
there  was  sometimes  a  friendly  discussion  as  to  its  form  ;  and  then 
the  opposing  counsel  promised  an  answer  on  the  following  day.* 
When  the  plea  was  enrolled  the  copy  of  the  roll  was  probably 
available  to  the  pleader  on  the  opposite  side,  who,  after  considera- 
tion, made  his  reply.  ^  It  is  probable,  therefore,  that  Reeve's  ac- 
count of  the  manner  of  recording  pleas  which  prevailed  in  the  fifteenth 
century  is  substantially  correct.  He  says  :  ^  "  Whether  it  (the 
declaration)  was  drawn  out  ...  on  paper  or  parchment  by  the 
party's  counsel,  and  delivered  over  to  the  adversary's  counsel,  or, 
what  is  more  probable,  was  entered,  in  the  first  instance,  upon  the 
roll  of  the  court,  it  is  not  easy  to  determine  with  precision  :  in  point 
of  effect  it  would  be  the  same  ;  for  the  roll  might  be  amended  by 
leave  of  the  justices,  during  the  term  in  which  the  declaration  or 
plea  was  entered,  and  it  must,  at  any  rate,  be  entered  on  the  roll, 
as  of  that  term  ;  in  both  of  which  cases  the  roll  became  afterwards, 
in  construction  of  law,  a  record  :  so  that  the  power  the  justices 
exercised  over  the  roll  during  the  term  is,  on  the  one  hand,  suf- 
ficient to  show  the  possibility  of  making  the  amendment  of  pleas 
without  resorting  to  the  supposition  of  there  being  paper  pleadings  ; 
and  the  different  construction  the  judges  put  upon  the  same 
roll  of  parchment,  after  and  during  the  term,  satisfies  us  that 
to  constitute  a  record  there  was  not  required  a  transcript  from 
any  less  solemn  paper  or  parchment  to  one  that  was  more  so. 
...  It  seems,  therefore,  a  reasonable  conjecture  that  whenever 
pleadings  ore  tenus  went  out  of  use,  it  became  the  practice  for  the 
counsel  to  enter  the  declaration  or  plea  upon  the  rolLin  the  office 

^  Y.B.  12  Rich.  II.  ig,  cited  above  637. 

2  "  And  note  that  after  the  adjournment  the  roll  was  amended  on  the  prayer  of 
the  tenant,  when  the  demandant  had  gone  with  his  day,  because  the  justices  re- 
corded that  the  roll  did  not  accord  with  the  plea,"  Y.B.  16  Ed.  III.  (R.S.)  i  64. 

3  In  a  letter  of  1469  to  Sir  William  Plompton  there  is  the  following  passage : 
"  Also  (I  have  sent  you)  the  copie  of  the  pleadings  betwixt  you  and  the  minister  for 
your  milne  at  Plompton  ;  it  were  well  done  that  ye  had  a  speech  with  Mr.  Middleton 
of  the  forme  of  the  pleadings,  and  of  the  matter  both  of  the  title  of  his  milne,  and 
your  milne,  and  of  the  freeholdes  of  both  sides  the  water,  for  that  your  counsell  may 
have  instruccion  thereof:  it  hath  cost  you  money  this  terme,  and  yett  no  con- 
clusion but  to  change  the  pleadings  the  next  terme  at  the  pleasure  of  the 
parties."  In  later  law  if  it  was  desired  that  no  alteration  should  be  made  on  the  roll 
a  "  recordatur  "  was  entered  that  the  record  was  not  altered,  and  then  any  alteration 
made  after  could  be  disregarded  ;  but  this  was  superseded  by  making  a  rule  of  court 
that  no  alteration  should  be  made,  Birt  v.  Roth  well  (1698)  i  Ld.  Raym.  at  p.  211. 

4  Y.B.  20  Ed.  III.  (R.S.)  i  328.  =  Longo  Quinto  35. 

•5  See  Y.B.  21  Ed.  IV.  Mich.  pi.  4  (p.  43),  •'  Lendemain  le  pleintif  en  breve 
d'Error  vient  in  propre  person  et  pleda  ce  plea  en  la  forme  ensuant  'ye  have  here, 
etc. — en  Englois  [then  follows  the  Latin  entry  on  the  roll  giving  the  effect  of  the 
plea].     A  auter  jour  Catesby  monstra  tout  le  plea  que  il  ad  plede  n'est  pas  bon." 

7  H.E.L.  ii  621-622. 


644        PROCEDURE  AND  PLEADING 

of  the  prothonotary ;  that  the  counsel  of  the  other  party  had  ac- 
cess to  it,  in  order  to  concert  his  plea  or  to  take  his  exceptions  to 
it ;  and  that  when  these  were  to  be  argued,  the  roll  was  brought 
into  court,  as  the  only  evidence  of  the  pleading  to  be  referred  to. 
This  course  was  certainly  attended  with  some  difficulties,  and  led 
to  the  expedient  of  putting  the  pleadings  into  paper,  and  handing 
this  paper  from  one  party  to  the  other,  the  entry  on  the  roll  being 
deferred  till  the  end  of  the  term." 

It  would  seem  that  in  the  latter  half  of  the  fifteenth  century 
this  practice  of  entering  the  plea  on  the  roll  in  the  office  of  the 
prothonotary,  and  the  power  of  the  court  to  amend  the  roll,  were 
giving  rise  to  a  practice  of  leaving  a  note  of  the  plea  with  the 
prothonotary  who,  after  verdict,  entered  up  the  record.  We  shall 
see  that  the  prothonotaries  and  their  clerks  were  constantly  em- 
ployed in  drawing  up  pleas  in  proper  form.^  Mr.  Hall  has  pointed 
out  ^  that  it  is  evident  *'  from  an  inspection  of  the  certified  '  Records ' 
of  Civil  Pleas  as  late  as  the  close  of  the  fourteenth  century  that  in 
the  hands  of  an  experienced  prothonotary,  the  briefest  memoranda 
were  sufficient  for  the  purpose  of  reconstructing  the  conventional 
pleadings  upon  a  formal  writ  or  bill.  The  notes  made  for  this 
purpose  were  endorsed  on  the  several  instruments  by  which  pro- 
cess was  effected,  and  then,  even  if  the  Roll  of  the  year  and  term 
were  not  available,  these  could  be  expanded  at  pleasure  in  the 
form  of  conventional  pleadings  after  the  lapse  of  many  years."  It 
was  therefore  natural  that  some  of  the  prothonotaries  should  con- 
sider it  more  convenient  to  note  the  pleadings  as  they  were  de- 
livered and  settled,  and  then,  when  the  case  was  finished,  enter  up 
the  roll.  Thus  in  1461  Widslad,  one  of  the  prothonotaries  of  the 
Common  Bench,  said  that  ''he  was  never  accustomed  to  make  a 
record  of  anything  or  of  any  plea  before  the  Assize  had  given  its 
verdict,  and  then  he  used  to  make  the  whole  record,  and  that  he 
used  to  enter  no  plea  of  the  other  days  though  the  Assize  had 
remained  (without  giving  its  verdict)  for  two  or  three  years  (unless 
he  were  specially  asked  by  the  plaintiff  to  enter  the  record  for 
any  special  reason)  ;  but  on  the  first  day  he  only  entered  the 
plaint  on  the  back  of  the  writ ;  and  he  said  that  it  was  the  usual 
course  pursued  by  his  master  Brown  who  was  prothnotary  before 
him."  ^     Similarly  in  another  case  in  the  same  year  it  seems  that 

1  Below  645. 

2  Studies  in  English  Official  Historical  Documents  325-326. 

2  "Widslad  dit  que  il  ne  unques  usoit  a  faire  ascun  record  dascun  chose,  ou 
dascun  plee  devant  que  I'Assise  soit  passe,  et  donques  a  faire  le  record  entier,  et 
rien  plee  de  les  auters  jours  coment  qu  I'Assise  avoit  remanie  ii  ou  iii  ans  (sinon 
que  il  soit  especialment  requis  per  le  pleintif  pur  especial  cause)  mes  tantsolement 
a  le  primer  jour  pur  entrer  le  pleint  sur  le  dos  del  breve :  et  il  disoit  que  ce  fuit 
common  cours  ove  son  Maistre  Brown  qui  fuit  protonotary  devant  luy  memc,"  Y.B, 
39  Hy.  VI.  Mich.  pi.  22. 


PROCEDURE  AND  PLEADING  645 

there  had  been  two  entries  of  the  same  case.  In  one  the  count, 
the  plea,  and  the  continuance  had  been  entered ;  and  in  the  other, 
which  had  been  made  up  after  verdict,  the  whole  case  had  been 
entered  anew  in  another  term.^ 

This  practice  of  making  the  formal  entry  at  the  close  of  the 
case  from  the  notes  of  the  pleadings  in  the  prothonotary's  office 
brings  us  a  good  deal  nearer  to  the  modern  practice ;  and  we  shall 
see  that  it  was  adopted  in  the  seventeenth  century. ^  But  it  was  not 
as  yet  established.  In  fact  it  was  disapproved  by  the  judges.  In 
the  first  of  these  cases  Markham  said  it  was  a  bad  usage  which 
originated  in  the  laches  of  the  clerks ;  ^  and  the  other  prothonotaries, 
Comberford  and  Copley,  agreed  that  the  proper  thing  to  do  was 
to  enter  up  the  record  day  by  day  as  the  case  proceeded ;  and  this 
was  approved  by  the  Court. ^  In  the  second  of  these  cases  it  was 
the  first  entry  which  was  regarded  as  authoritative.^  The  judges 
still  held  to  the  view  that  the  pleadings  must  be  settled  by  oral 
discussion  at  the  bar.  No  doubt  the  plea  was  put  into  writing, 
and  then  discussed — the  growth  of  formalism  in  pleading  had 
made  this  necessary.  But  the  final  form  of  the  pleadings,  and 
therefore  the  issue  to  be  tried,  were  still  settled  by  this  oral  discussion 
at  the  bar.  We  shall  now  see  that  it  is  to  cases  when  the  parties 
appeared,  not  by  counsel,  but  in  person  or  by  attorney,  that  we 
must  look  for  a  further  modification  in  the  direction  of  the  later 
system  of  written  pleadings. 

If  a  litigant  appeared  in  person  or  by  attorney  he  or  his  at- 
torney must  draw  his  pleadings.  But  in  such  cases  it  is  probable 
that  his  plea  would  need  to  be  put  into  formal  shape.  In  such 
cases,  it  would  seem,  it  was  the  prothonotaries  or  their  clerks  who 
were  employed  to  do  this  work;  and  it  was  doubtless  for  this 
reason  that  it  was  customary  for  the  parties  to  employ  them  as 
their  attorneys.  In  1 392-1 393  the  Commons  complained  that 
these  clerks  purposely  garbled  the  pleadings  entered  on  the  rolls 
in  the  interests  of  their  clients;^    and  in   1 410   the  Commons 

^  "  Choke  Sir  il  y  ad  ii  rolles :  un  rolle  en  quel  le  count  et  le  plee  et  certein  con- 
tinuance fuit,  et  le  rolle  qui  il  ad  mise  avant  qui  fuit  fait  quand  le  verdict  fuit  passe, 
et  la  fuit  tout  I'entier  matter  entre  de  novo  a  atiter  Terme.  Et  en  le  primer  rolle  la 
il  est  qui  heir  il  est,  et  coment  que  le  clerk  ad  entre-lesse  en  son  novel  rolle  ce  sera 
amend  pur  ce  qu'il  est  forsque  misprison  del  clerk.  Et  le  primer  rolle  fuit  veu,  et 
fuit  come  Choke  disoit  Purque  le  ii  rolle  fuit  amende  per  advis  de  tout  le  Court,'' 
Y.B.  39  Hy.  VI.  Mich.  pi.  43  (p.  31). 

2  Below  652-653.  3  Y.B.  39  Hy.  VI.  Mich.  pi.  22. 

*  Comberford  thought  that  the  practice  was  not  quite  settled,  but  "  il  est  bon 
guide  a  faire  le  record  chescun  jour  de  ceo  qui  est  fait ;  "  Copeley  was  more  definite, 
and  said  that  he  always  '*  use  a  faire  son  record  chescun  jour  de  ceo  que  est  fait  a 
ceo  jour,  et  touts  dits  ad  use.  Et  les  Justices  disoient  que  ce  fuit  bien  use,  que 
issint  covient  estre  fait." 

'Above  n.  i. 

"  "  Item  priont  les  Communes,  que  come  plusors  Clercs  de  Bank  le  Roi,  Com- 
mune Bank,  et  C|ercs  d'Assises,  (jue  escrivent  les  Records  et  Plees  perentre  partie  et 


646        PROCEDURE  AND  PLEADING 

petitioned  that  no  filazer  of  either  bench  or  prothonotary  be  an 
attorney.  This  petition  was  declined,  and  it  was  declared  that 
they  should  continue  to  act  as  attorneys  as  heretofore.^  Their 
close  connection  with  the  pleadings  of  persons  not  represented  by 
counsel  is  more  directly  shown  by  an  order  made  by  Prisot,  C.J., 
and  the  other  judges  of  the  Common  Bench  in  1457  as  to  the  fees 
payable  to  the  prothonotaries.^  For  every  "comen  declarcayon, 
comen  Plee  in  barre,  comen  replycacyon,  and  comen  rejoinder  in 
Flees  personel,"  where  the  litigant  appears  in  person  or  by  attorney 
the  fee  is  to  be  13s.  46.  ;  but  for  personal  pleas  pleaded  by  a 
Serjeant  it  is  only  2s.  This  shows  pretty  clearly  that  the  pro- 
thonotaries  or  their  clerks,  acting  as  attorneys  drew,  or  acting  as 
clerks  put  into  shape,  the  pleadings  of  persons  not  represented  by 
counsel.  As  we  shall  now  see,  it  is  in  connection  with  pleas  thus 
drawn  or  put  into  shape  that  we  get  a  stage  nearer  to  the  written 
"  paper"  pleadings  of  the  modern  law. 

It  is  in  1460  that  we  get  perhaps  the  first  and  certainly  an 
early  mention  of  a  "paper"  pleading.^  The  tenant  and  his  at- 
torney in  a  writ  of  right  had  made  default  at  nisi prius.  The  judges 
had  recorded  this  default,  and  discharged  the  jury.  In  the  Easter 
term  the  tenant  came  to  the  bar,  and  his  presence  was  recorded. 
Thereon  Billing  and  Laicon,  counsel  for  the  demandant,  prayed 
judgment  against  the  tenant.  Choke  and  Littleton  were  counsel 
for  the  tenant ;  and  the  tenant  requested  them  to  plead  the  fact 
that  while  coming  to  the  former  trial  he  and  his  attorney  had  been 
stopped  by  floods,  in  order  that  by  this  plea  his  former  default 
might  be  saved.  But  these  floods  were  alleged  to  have  been  in 
the  county  palatine  of  Durham  and  another  county  ;  and  the 
Serjeants  knowing  nothing  of  the  matter,  and  apparently  suspecting 
the  truth  of  these  statements,  declined  to  plead  them.  "  Where- 
fore the  tenant  went  to  Comberford,  the  prothonotary,  and  prayed 
him  to  make  him  a  paper  upon  this  matter,  which  he  did ;  then 
he  came  with  the  paper  to  Choke  at  the  bar,  and  prayed  him  to 
put  it  in  to  the  court,  and  he  did  so  by  his  command  without 
pleading  it,  or  seeing  what  was  in  the  paper ;  and  the  paper  re- 
mained with  Copley,  another  prothonotary,  because  he  had  the 
entry  of  the  matter  before."  ^ 

partie,  sont  Attournes  ove  Tune  partie  ou  Tautre,  et  issint  favorables  en  lour  escrive, 
a  grant  meschief,  damage,  et  desheriteson  de  vos  leges,"  R.P.  iii  306  (16  Rich.  II. 
no.  28). 

1  R.P.  III.  642-643  (11  Hy.  IV.  no.  63). 

2  Praxis  Utriusque  Banci  (ed.  1674)  28.  »  y.B.  38  Hy.  VI.  Pasch.  pi.  13. 
*"Pourquoi  il  ala  a  Cumberford  protonotary  et  pria  que  il  voille  faire  a  luy 

papier  de  ceo  matter ;  que  fait  issint ;  et  puis  il  vint  ove  le  papier  et  la  prist  a 
Choke  a  le  barre,  et  luy  pria  a  getter  ceo  en  le  court,  et  issint  il  fist  per  son 
commandement  sans  pleder  ou  sans  voier  que  fuit  deins  le  papier,  et  cest  papier, 
demour  ove  Copley  un  auter  protonotary  pur  ceo  que  il  avoit  I'entrie  4e  le  matter  a 
4^vant," 


PROCEDURE  AND  PLEADING         647 

Billing  and  Laicon  then  moved  for  judgment,  commenting 
upon  the  character  of  a  plea  so  suspicious  that  even  the  tenant's 
own  counsel  would  not  plead  it.  Choke  and  Littleton  then  tried 
to  excuse  the  tenant;  but  Prisot,  CJ.,  said  to  them:  **  You  will 
get  no  worship  by  meddling  with  these  false  and  suspicious 
matters;  for  this  and  suchlike  business  will  get  no  favour  here. 
It  is  not  the  practice  to  put  in  such  papers  when  the  party  is 
represented  by  counsel  without  pleading  them  at  the  bar  openly ; 
for  if  this  be  allowed  we  shall  have  several  such  papers  in  time  to 
come  which  will  come  in  under  a  cloak,  and  matter  which  a  man's 
counsel  will  not  plead  can  be  said  to  be  suspicious.  Then  he 
said  to  them,  If  you  wish  to  plead  this  matter  plead  it,  or  other- 
wise it  will  be  good  for  nothing.  And  they  replied  that  they 
dared  not  plead  this  matter,  knowing  nothing  of  it  except  what 
the  tenant  told  them ;  and  they  said  that  they  did  not  wish  to 
meddle  any  further  with  it."  ^ 

There  was  then  some  further  discussion,  and  Moile,  J.,  gave  it 
as  his  opinion  that  since  the  Serjeants  would  not  plead  for  the 
tenant,  the  tenant  could  do  nothing  else  but  go  to  the  prothonotary 
and  get  a  paper  drawn  up  and  plead  the  matter  in  this  way.^ 
After  further  discussion  on  other  days,  it  was  finally  settled  "  that 
the  plea  be  recorded  in  the  manner  and  form  in  which  it  is  drawn 
without  any  amendment ;  and  they  charged  the  prothonotary  to 
make  no  amendment."  Then  Billing  and  Laicon  were  told  to 
answer  to  the  plea.  They  demurred  to  it ;  and  after  some  further 
discussion  the  court  told  Choke  and  Littleton  to  argue  the  demurrer. 

It  is  clear  from  this  curious  tale  that  a  person  not  represented 
by  counsel  could  get  his  plea  put  into  shape  and  written  out  on 
paper  by  the  prothonotary  or  his  clerk ;  and  that  he  could  then 
put  this  paper  in  as  his  plea.  The  court  did  not  consider  it 
necessary  to  speak  the  plea  for  such  a  person,  as  under  the  old 
practice.^  It  is  also  fairly  obvious  firstly  that,  when  the  plea  was 
put  in  or  spoken,  it  might  be  amended  before  it  was  enrolled,  for 
a  special  instruction  was  given  that  this  extremely  suspicious  plea 

''^'^  Prisot  dit  a  eux,  N'aures  unques  worship  per  tiels  matters,  issint  faux  et 
suspecious,  car  ceo  matter  n'aura  nul  favour  icy,  ne  nul  tiel ;  et  il  n'ad  este  use  cy 
a  mettre  eins  tiels  papiers  quand  le  party  ad  Consail  ove  luy  sans  eux  pleder  al  barre 
overtement ;  car  si  cest  point  serra  suffre  nous  aurons  plusors  tiels  papiers  en  temps 
avenir,  que  viendra  eins  desous  un  cloak,  et  il  puit  estre  dit  suspecious  matter  que 
son  Consail  ne  veut  pleder.  Purquoi  il  dit  a  eu^x,  Si  voules  pleder  cest  matter,  p'edez, 
ou  autrement  il  servira  pur  rien.  Et  ils  respondent  qu'ils  n'osent  pleder,  ne  ils  ne 
scavent  unques  de  le  matter,  mais  come  il  avait  dit ;  et  disoient  qu'ils  ne  voillent 
pluis  mesler  ove  ceo." 

2  "  Quand  le  party  fuit  icy,  et  son  presence  record,  et  command  a  pleder,  et  il 
vient  ove  sa  matter  a  son  Consail  et  ils  ne  voillent  pleder  le  matter  pur  le  suspecion, 
que  poit  il  donques  faire,  mes  va  al'  protonotary  et  fait  un  papier  et  le  mist  eins  pur 
son  excuse,  n'ad  il  donques  bien  fait  ?  " 

3Y.B.  II,  12  Ed.  III.  (R.S.)  66,  "And  because  the  plaintiff  was  a  poor  man 
and  the  court  itself  had  spoken  the  declaration,  the  defendant  was  driven  to  answer," 


648        PROCEDURE  AND  PLEADING 

was  not  to  be  amended  ;  and  secondly  that  as  yet  the  serjeant  who 
pleads  a  plea  takes  upon  himself  some  responsibility  for  its  accuracy. 
This  second  point  is  abundantly  clear  both  from  the  reports  ^  and 
from  other  sources ;  ^  and  it  is  clear  that  throughout  this  period 
it  made  for  the  retention  of  the  old  style  of  oral  pleading.  Though 
Moile  thought  there  was  no  objection  to  such  a  manner  of  pleading 
when  counsel  had  declined  to  plead,  Prisot  objected  on  the  ground 
that  it  would  be  a  bad  precedent  to  allow  persons  represented  by 
counsel  thus  to  put  in  paper  pleas. 

We  shall  now  see  that  it  is  a  development  of  this  practice  of 
allowing  persons  not  represented  by  counsel  to  put  in  paper  pleas 
settled  in  the  prothonotaries'  offices,  that  gave  rise  to  the  modern 
practice  of  drawing  up  paper  pleadings,  which  were  exchanged 
between  the  attorneys  of  the  litigants,  and  entered  on  the  roll  at 
the  conclusion  of  the  case.  But  this  development  does  not  take 
place  till  the  sixteenth  century. 

(b)  That  this  development  took  place  in  the  sixteenth  and 
seventeenth  centuries  is  due  firstly  and  chiefly  to  the  growth  of 
the  practice  of  proving  facts  by  witnesses  instead  of  relying  on  the 
statements  of  counsel.  This  change  was,  so  to  speak,  the  condi- 
tion precedent  for  the  further  developments  which  led  to  the  modern 
system  of  written  pleadings.  Secondly,  it  was  due  to  some  extent 
to  the  practice  of  other  courts,  outside  the  sphere  of  the  common 
law,  which  had  long  used  written  pleadings.  Thirdly,  it  was  due  to 
the  growth  in  the  complexity  of  the  science  of  pleading.  Fourthly, 
it  was  due  to  modifications  in  the  arrangements  of  the  prothono- 
taries offices,  which  were  occasioned  by  the  greatly  increased  mass 
of  business  with  which  the  common  law  courts  were  called  on  to 
deal  in  the  latter  part  of  the  sixteenth  century. 

Firstly,  it  is  quite  clear  that  in  the  course  of  the  sixteenth 
century  the  practice  of  proving  by  witnesses  the  facts  stated  in  the 
pleadings  was  growing.^  Probably  the  earlier  half  of  the  sixteenth 
century  was  a  transition  period.  Thus  in  the  case  of  Reniger  v. 
Fogossa  in   1551^  the  witnesses  for  the  crown  apparently  made 

^See  e.g.  12  Rich.  II.  80  where  counsel  makes  a  statement  after  examining  his 
client ;  above  638. 

2  Thus  in  1475  Sir  WilHam  Plompton's  servant  wrote  as  follows:  "As  for  the 
suit  of  Tulis  executor,  it  is  delaied  for  this  terme,  but  the  next  terme  it  cannot  be 
delaied;  therefore  it  were  well  done  ye  sought  up  your  writtings,  and  all  the  sir- 
cumstances  of  making  the  obligacion,  and  whear  it  was  made ;  for  there  is  none  will 
make  a  plea,  without  he  have  some  matter  to  make  it  of;  and  also  the  court  will  not 
admit  a  forreine  plea,  without  the  matter  be  somewhat  likely  to  be  true,"  Plompton 
Correspondence  (C.S.)  30;  and  see  ibid  151-152  for  the  care  taken  by  counsel  to  get 
up  the  evidence  before  they  pleaded.  In  1619  it  was  held  that  a  counsel  was  under 
no  duty  to  sign  any  pleading  put  before  him  by  his  client,  Mingay  v.  Hammond, 
Cro.  Jac.  482. 

^•n;.^^  Vol.  i  335-336;  and  for  the  beginnings  of  the  law  of  evidence  see  Bk.  iv  Pt. 
II.  c.  7§  I. 

^Plowden  i, 


PROCEDURE  AND  PLEADING  649 

their  depositions  and  were  examined  upon  them  in  court.  On  the 
other  hand,  the  evidence  for  the  defendant  was  stated  by  "John 
Pollard  Serjeant  at  law  and  others  learned  in  the  law  counsel  with 
the  aforesaid  Anthony  Fogossa."^  It  may  be  that  here,  as  in 
other  cases,  the  competition  of  the  Chancery  exercised  a  liberal- 
izing influence  upon  the  doctrines  of  the  common  law  courts. 
Persons  whose  witnesses  were  frightened  by  the  prospect  of  pro- 
ceedings for  maintenance  applied  to  the  chancellor  for  a  subpoena 
directed  to  these  witnesses.  The  witnesses,  being  thus  compelled 
to  testify,  ran  no  risk  of  proceedings  being  taken  against  them ; 
and  the  Council  sometimes  intervened  to  protect  them  from  this  or 
other  risks.2  A  statute  of  1563  allowed  process  to  issue  to  com- 
pel the  attendance  of  such  witnesses ;  ^  and  Sir  Thomas  Smith 
regards  their  presence  as  the  usual  accompaniment  of  a  trial.* 
This  clearly  tends  to  shift  away  from  counsel  the  responsibility  for 
the  truth  of  pleas  pleaded  by  him,  and  to  take  away  Pri sot's 
objection  to  such  paper  pleas  being  put  forward  by  persons 
represented  by  counsel.  This  being  so,  it  would  appear  that  even 
according  to  the  view  of  Prisot,  and  certainly  according  to  the 
view  of  Moile,  there  could  be  no  objection  to  paper  pleadings. 
We  are  not,  therefore,  surprised  to  find  that  in  the  later  Year 
Books  of  Henry  VII.  and  VIII. 's  reigns  the  questions  argued  are 
rather  questions  as  to  the  form  and  effect  of  pleadings  already 
settled,  than  questions  as  to  the  form  which  the  issue  shall  take ; 
and  the  same  thing  can  be  said  of  the  earlier  cases  in  Dyer's 
reports.  Though  in  the  sixteenth  century  the  court  will  some- 
times give  a  litigant  time  to  change  a  faulty  plea,^  or  will  advise 
a  litigant  as  to  the  proper  form  of  plea, ^  though  in  the  seventeenth 
century  oral  pleadings  were  still  formally  in  use  in  the  real  actions,^ 
it  is  clear  that  the  practice  of  settling  the  pleadings  out  of  court 
was  growing.  When  Sir  Thomas  Smith  wrote,  pleadings  could 
be  either  written  or  spoken.^     But    the   fact    that   in   1540  the 

1  Plowden  at  p.  4. 

2  Stavern  v.  Bouynton,  Cal.  i  xix,  petition  to  the  chancellor  for  a  subpoena  to  the 
witness,  "  for  the  cause  that  he  shuld  noght  be  haldyn  parciall  in  the  same  matier ;  " 
cp.  Select  Cases  in  Chancery  (S.S.)  no  126 ;  as  late  as  1590  the  Council  found  it 
necessary  to  write  to  the  Judges  of  Assize  for  Staffordshire  "  to  take  order  that  for^ 
anie  matter  of  evidence  that  Day  gave  in  against  William  Stone  or  Richard  Stone 
who  were  accused  and  charged  with  foule  misdemeanours,  they  might  not  be  towched 
anie  waie  to  prejudice  or  endomage  them,"  Dasent  xix.  331. 

3  5  Elizabeth  c.  9  §  12.  ■*  De  Republica  Bk.  2  c.  15. 
^  Russell's  Case  (1539)  Dyer  26b. 

«See  Vivion  v.  St.  Abyn  (1554)  Dyer  at  f.  107a,  107b,  where  the  plaintiff 
pleaded  in  accordance  with  the  advice  of  the  court;  cp.  Banister  v.  Benjamin 
(1541)  Dyer  at  f.  47b  where  plaintiffs  counsel  would  not  assent  to  a  proposition  by 
the  court  that  he  sliould  demur. 

'  Lives  of  the  Norths  i  27-28,  cited  below  655  n.  4. 

8Bk.  2  c.  12  he  tells  us  that  the  judges  "heare  the  pleading  of  all  matters 
which  do  come  before  them :  and  in  civill  matters  whejre  the  pleading  is  for  mpney, 


650        PROCEDURE  AND  PLEADING 

statutes  of  jeofail  were  extended  to  mispleading  made  not  only  by 
the  officers  of  the  courts,  but  also  by  the  parties  or  their  advisers,^ 
is  some  indication  that  this  changed  system  was  making  progress ; 
and  in  1584  the  Serjeants  in  Dowmaris  Case'^  treat  the  distinction 
between  the  pleadings  and  the  evidence  for  the  pleadings  as  well 
settled. 

Secondly,  it  may  be  that  in  earlier  days  oral  pleadings  were 
known  in  cases  heard  before  the  Council,  the  Star  Chamber,^  and 
the  Chancery.^  But  in  the  sixteenth  century  both  the  pleadings 
and  the  evidence  were  written.  Both  in  England  and  abroad  the 
influence  of  the  procedure  of  the  canon  law  was  making  for  a 
written  procedure  which  seemed  to  be  more  speedy  than  the  in- 
terminable debates  for  which  oral  pleading,  combined  with  the 
technical  procedure  of  the  common  law,  afforded  abundant  op- 
portunities.^ Fortunately  for  the  common  law  it  maintained  the 
practice  of  the  oral  examination  of  witnesses,  and  never  adopted 
the  practice  of  written  depositions ;  but  it  is  probable  that  the 
written  pleadings  used  by  litigants  before  the  Council,  and  in  the 
courts  of  Star  Chamber  and  the  Chancery,  had  some  influence  on 
the  practice  of  the  common  law  courts. 

Thirdly,  the  growing  complexity  of  the  science  of  pleading  was 
making  it  a  very  special  subject,  to  be  learned  best  in  the  offices  of 
the  prothonotaries.^  As  in  the  preceding  period,  the  court  was 
sometimes  guided  by  their  opinion,  and  by  the  practice  of  their 
offices.^     Their  clerks  were  employed  by  the  attorneys  to  draw  up 

or  land,  or  possession,  part  by  writings  and  part  by  declaration  and  altercation  of  the 
advocates  the  one  with  the  other ^  it  doth  so  proceed  before  them  till  it  do  come  to  the 
issue  which  the  Latines  do  call  statum  causce.'^ 

^  32  Henry  VIII.  c.  30 ;  extended  by  18  Elizabeth  c.  14  ;  27  Elizabeth  c.  5;  21 
James  I.  c.  13. 

2  9  Co.  Rep.  gb — •'  Evidence  shall  never  be  pleaded,  because  it  tends  to  prove 
matter  in  fact;  and  therefore  the  matter  in  fact  shall  be  pleaded;  and  if  that  is 
denied,  the  evidence  is  to  be  given  to  the  jury,  and  not  to  the  Court." 

3  Prof.  Baldwin,  Select  Cases  before  the  King's  Council  (S.S.J  xli,  notes  that 
there  was  "  a  gradual  change  from  the  oral  pleadings  of  the  first  half  of  the 
fourteenth  century  to  the  written  pleadings  afterwards  elaborated ;  "  as  he  says, 
ibid  cxv,  the  case  of  Heyron  v.  Proute  (1460-1463)  110-114,  affords  a  very  good 
example  of  these  written  pleadings.  I  do  not  think  that  his  assertion,  ibid  xli,-  that 
'♦  the  council  was  slower  than  the  courts  of  common  law  to  change  to  written  plead- 
ings "  can  be  substantiated. 

^  Baildon,  Select  Cases  in  Chancery  (S.S.)  xxvii,  xxviii ;  see  case  no.  138,  and 
n.  2  at  p.  134. 

^See  Dareste,  Nouvelles  Etudes  D'histoire  du  droit  (3rd  series)  293,  where, 
speaking  of  the  Parlement  of  Paris,  he  says,  "  La  procedure  tout  orale  du  XlVe 
siecle  6tait  tres  longue,  tres  couteuse,  et  le  Parlement  surcharge  pouvait  a  grand 
peine  suffire  k  I'exp^dition  des  affaires." 

^  Dyer,  C.J.  (Praxis,  Utriusque  Banci  42),  in  his  charge  in  1567  to  a  jury  of 
attorneys  appointed  to  enquire  into  misdemeanours  in  his  court,  says  that  he  had 
himself  acted  as  such  a  clerk. 

'  Throckmerton  v,  Tracy  (1550)  Plowden  at  p.  163  ;  Burton  v.  Eyre  (1612)  Cro, 
Jac,  at  p,  289. 


PROCEDURE  AND  PLEADING         651 

the  pleadings,^  and,  as  we  have  seen,  often  themselves  acted  as 
attorneys  for  the  parties. ^  At  the  same  time  the  conduct  of  the 
case  in  court  was  becoming  a  very  different  thing,  and  demanded 
very  different  qualities  now  that  there  were  witnesses  to  be 
examined  and  cross-examined.  The  skilful  construction  of  plead- 
ings became  a  branch  of  legal  learning  distinct  from  the  actual  laying 
of  the  proofs  for  the  pleadings  before  the  court,  and  the  maintenance 
of  their  validity  in  court.  The  art  of  the  special  pleader  falls  apart 
from  the  art  of  the  advocate.^  The  attorney  who  is  brought  into 
close  contact  with  his  client  collects  the  facts  and  the  proofs ; 
either  he  or  the  special  pleader  puts  them  into  shape,  according  to 
the  minute  and  technical  rules  of  pleading ;  the  serjeant  or  the 
apprentice  conducts  the  case  raised  by  the  pleadings  through  the 
court,  maintaining  the  validity  of  the  pleadings,  attempting  to  prove 
by  his  witnesses  or  documents  the  issues  of  fact,  and  arguing  the 
issues  of  law.  ^ 

Fourthly,  just  as  these  changes  were  introducing  a  differentiation 
of  functions  amongst  the  members  of  the  legal  profession,  so  they 
introduced  changes  in  the  organization  and  functions  of  the 
prothonotaries'  ofifices.  In  the  sixteenth  century  there  was  a 
tendency  to  adopt  the  policy  outlined  by  the  House  of  Commons  in 
the  latter  part  of  the  fourteenth  and  the  beginning  of  the  fifteenth 
centuries,^  and  to  prohibit  the  clerks  in  the  prothonotaries  offices 
from  drawing  and  entering  the  pleadings  in  cases  in  which  they  were 
retained  as  attorneys.^     In  the  first  half  of  the  seventeenth  century 

^  This  comes  out  very  clearly  in  the  additions  made  in  the  1589  ed.  of  Smith's 
Republic,  see  Alston's  ed.  App.  A. ;  thus  in  the  addition  to  Bk.  2  c.  i  we  are  told  that 
"  The  Protonotaries  are  the  Clerks  in  Court  which  .  .  .  doe  frame  the  pleading," 
while  the  Attorneys  "  doe  purchase  out  Writs  and  Processe  belonging  to  their  Clients 
Cause;  "  in  a  new  chapter  13,  which  deals  with  the  King's  Bench,  we  are  told  that 
"  there  are  certayne  Atturnies  belonging  to  this  Court  in  number  as  the  Protonothorie 
shall  appoint ;  those  are  for  Plaintiffs  and  defendants  in  every  cause,  and  they  frame 
and  make  the  pleadings  " — in  effect  they  were  therefore  nominees  of  the  Prothonotary ; 
in  a  new  chapter  15,  which  deals  with  the  Common  Pleas,  we  are  told  that  "  the 
Protonotharies  are  they  which  after  the  parties  have  appeared  in  court,  do  enter  the 
matter  in  suite,  and  make  the  pleadings,  and  enter  them;  "  for  a  case  which  turned 
on  the  mistake  of  one  of  these  clerks  see  Forger  v.  Sales  (1629)  Cro.  Car.  147-148 ; 
the  practice  was  then  well  established,  below  n.  6. 

2  Above  645. 

3  Smith,  Republic  Bk.  2  c.  15  assumes  that  the  trial  is  distinct  from  the  pleadings ; 
in  fact  the  trial  as  he  describes  it  has  all  the  modern  incidents. 

^  The  writer  of  the  additions  to  the  1589  ed.  of  Smith's  Republic  in  Bk.  2  c.  i 
puts  into  one  class  the  judges,  Serjeants  and  counsellors,  and  in  another  the 
prothonotaries,  the  attorneys,  and  solicitors ;  Greenidge,  Legal  Procedure  in  Cicero's 
Time  148,  tells  us  that  at  Rome  the  pleaders  {advocati)  tended  to  fall  apart  from  the 
eloquent  patroni. 

^  Above  645-646. 

^  Praxis  Utriusque  Banci  40,  Orders  of  the  judges  of  the  Common  Bench,  Mich. 
15  Eliz.  no.  10,  to  the  effect  that  no  prothonotary's  clerk  who  is  an  attorney  is  to  draw 
up  '*  any  paper  or  book  of  the  office  "  wherein  he  is  a  clerk,  in  a  case  in  which  there 
is  special  pleading,  and  in  which  he  is  the  attorney  of  the  plaintiff  or  defendant,  unles? 
the  other  side  consent, 


652        PROCEDURE  AND  PLEADING 

an  attempt  was  made  to  separate  the  office  of  attorney  from  that  of 
clerk  to  the  prothonotaries,  and  restrict  the  latter  to  the  drawing  of 
pleadings.^  But,  as  the  seventeenth  century  proceeded,  it  is  clear 
that  the  growing  mass  of  litigation  prevented  the  clerks  from  being 
able  to  attend  to  the  business  of  private  clients.  As  was  the  case 
with  the  Six  and  the  Sixty  Clerks  in  Chancery^  so  it  was  with  the 
prothonotaries'  clerks,  the  business  formerly  done  by  them  passed 
to  the  attorneys  employed  by  the  litigants.^ 

It  would  seem  that  this  change  finally  took  place  in  the  latter 
part  of  the  seventeenth  century,  and  was  first  introduced  in  the 
court  of  King's  Bench,  in  which,  as  we  have  seen,^  attorneys 
appointed  by  the  prothonotary  drew  the  pleadings.  *'  In  the  court 
of  King's  Bench,"  we  are  told,^  "the  Declaration  used  to  be  drawn 
from  the  Bill  then  filed  by  the  clerks  in  the  King's  Bench  office 
who  were  then  many,  and  did  the  business  therein  for  the  attornies 
at  large,  or  for  those  who  had  not  seats  there ;  in  like  manner  as 
the  clerks  in  the  Exchequer  of  Pleas  do  now ;  for  these  clerks,  in 
right  of  their  being  clerks,  were  called  attornies  of  the  court ;  ^  and 
no  attornies  at  large,  till  after  the  Fire  of  London,  were  admitted  to 
file  their  own  pleadings."  The  court  of  Common  Pleas,  it  was  said, 
imitated  this  practice.^  According  to  the  older  Common  Pleas 
practice  the  plaintiffs  serjeant  counted  ore  tenus  in  the  same  term 
as  the  writ  was  returned.  The  defendant's  serjeant  asked  leave  to 
imparl,  i.e.  to  delay  his  answer  till  the  following  term.  The  next 
term  he  pleaded,  a  minute  was  taken  by  the  prothonotary  of  his 
pleading,  and  copies  were  made  of  the  entry  for  the  parties  that  they 
might  see  whether  the  entry  was  correct. '^  *'But,  as  the  business 
of  the  court  increased,  the  Prothonotaries  found  it  difficult  to 
manage  the  business  of  the  court  in  making  those  entries ;  and 
therefore  they  permitted  the  attornies  to  draw  up  those  pleadings, 
and  leave  them  in  their  office  to  enter  occasionally ;  afterwards  to 
deliver  the  proceedings  in  paper  to  one  another,  and  to  pay  them 
for  the  several  entries  on  passing  the  Nisi  Prius  Roll.^     And  from 

^  Praxis,  etc.  113,  Orders  of  Hil.  8  Car.  I.  separated  the  office  of  clerk  to  the 
prothonotaries  and  the  attorney — the  former  were  to  draw  the  pleadings ;  the  latter 
were  to  prosecute  and  defend  actions  for  clients.  We  may  note  that  the  clerks  were 
to  serve  six  years  in  the  office  and  belong  to  an  Inn  of  Chancery. 

''As  to  this  see  Bk.  iv  Pt.  I.  c.  8.  ^ Above  651  n.  i. 

*  R.  Boote,  An  Historical  Treatise  of  an  Action  or  Suit  at  Law  (1766)  63-64  ;  this 
book  contains  some  very  useful  remarks  upon  and  explanations  of  the  old  practice, 
and  it  may  be  taken  to  have  embodied  the  tradition  of  the  period  when  it  was  written. 

''This  is  borne  out  by  what  is  stated  in  the  1589  ed.  of  Smith's  Republic,  above 
651  n.  I.  *  Boote,  op.  cit.  66. 

'  Substantially  the  same  account  is  given  by  Boote,  op.  cit.  66,  and  by  Gilbert, 
Origins  of  the  King's  Bench  (1763)  314-315. 

8 Boote  says,  loc.  cit.  that,  "The  Prothonotaries  in  the  Common  Pleas  (and 
clerk  of  Nisi  Prius  in  the  King's  Bench)  do  pass  the  records  or  Nisi  Prius  Rolls  for 
trial,  and  are  paid  so  much  per  sheet  for  so  doing,  because  the  Nisi  Prius  Rolls  are 
supposed  to  be  made  up  by  themselves  from  the  several  rolls  in  their  offices ;  "  this 
is  confirmed  by  North,  Lives  of  (he  Norths,  i  127,  cited  vol,  i  258  n,  8, 


PROCEDURE  AND  PLEADING         65S 

these  pleadings  in  paper  or  in  the  office  the  Nisi  Prius  Roll  was 
made  up ;  and  after  the  verdict  they  made  up  the  Plea  Roll  from 
the  Nisi  Prius  Roll,  in  order  to  enter  up  judgment  thereon.  This 
was  inverting  the  ancient  practice,  for  now  the  proceedings  began 
to  run  in  a  new  channel.  Attornies  having  gained  knowledge  and 
skill  from  the  entries  of  the  Prothonotaries,  in  common  cases  drew 
their  own  declarations  or  else  used  to  apply  to  counsel  to  do  it."  ^ 
It  was  inevitable  that  under  these  circumstances  the  authority  of  the 
'*  paper  book  "  should  increase.  In  fact,  from  the  beginning  of  the 
seventeenth  century,  the  courts  had  allowed  the  record  to  be 
amended  so  as  to  bring  it  into  conformity  with  the  paper  book.^ 
Thus  we  reach  the  modern  system.  But,  except  in  the  case  of 
common  form  pleadings,  the  attorneys  rarely  drew  them.  They 
employed  counsel ;  and  we  shall  see  that  the  complexity  of  the 
science  of  pleading  gave  rise  to  a  class  of  special  pleaders  under 
the  bar.^  But  a  reminiscence  of  the  period  when  the  clerks  in  the 
prothonotaries'  offices  drew  and  entered  the  pleadings,  remained  in 
the  fees  payable  to  the  prothonotaries  and  their  clerks  ;  ^  a  remi- 
niscence of  the  way  in  which  the  attornies  had  superseded  these 
clerks  remained  in  the  allowance  made  by  the  prothonotaries 
to  the  attornies ;  ^  and  a  reminiscence  of  the  earliest  period  when 
written  pleadings  were  only  allowed  to  parties  not  represented  by 
counsel,  remained  in  the  rule  that  it  was  the  attorney  and  not  the 
counsel  who  was  identified  with  these  written  paper  pleadings.^ 

(ii)   Tke  effects  of  these  changes. 

In  describing  these  changes  I  have  gone  far  beyond  the 
mediaeval  period.  Neither  the  changes  nor  their  effects  were 
fully  felt  till  the  latter  part  of  the  sixteenth  and  the  seventeenth 
centuries.  I  shall  here  only  briefly  indicate  their  effects  (i)  upon 
the  mechanism  of  legal  institutions,  (ii)  upon  the  manner  of 
reporting  cases,  and  (iii)  upon  the  law. 

^  Boote,  op.  cit.  66-67. 

2"  And  the  record  in  another  term  may  be  amended  by  the  paper  book  of  the 
office,  for  it  was  the  misprision  of  the  clerke  in  the  entering  of  it,  and  no  fault  in  the 
party  or  his  counsel,"  Blackamore's  Case  (1611)  8  Co.  Rep.  at  f.  i6ib;  cp.  Young  v. 
Englefield  (1624)  Cro.  Jac.  670;  Tufton  and  Ashley's  Case  (1629)  Cro.  Car.  144. 

^Bk.  iv  Pt.  I.  c.  8;  Boote,  op.  cit.  108,  says,  "Special  Pleadings  may  be  now 
said  to  be  a  particular  branch  of  the  law ;  and  yet  how  few  know  its  form  and  niceties  ? 
Attornies  know  but  little  of  the  matter ;  in  short  they  don't  pretend  to  it,  for  as  special 
pleadings  must  be  signed  by  counsel,  they  first  get  them  drawn  by  some  gentleman, 
who  by  his  practice  has  gained  skill  and  experience  therein,  and  then  get  the  draught 
settled  and  signed  by  some  eminent  counsellor,  who  stuffs  it  with  all  the  curious 
and  nice  matters  it  may  ^eem  to  want.  It  is  sufficient  for  an  attorney  to  understand 
the  terms  of  art  used  therein." 

*  Above  652  n.  8  ;  vol.  i  258-259.  •  Parlt.  Papers  (1819-20),  ii  214-215. 

^  Above  640,  645-646. 


654        PROCEDURE  AND  PLEADING 

(i)  These  changes  affected  the  mechanism  of  various  legal 
institutions.  They  affected  the  jury.  When  the  pleadings  were 
drawn  up  and  the  issue  fixed  before  the  parties  came  into 
court,  when  the  evidence  was  given  after  the  jury  had  been 
summoned,  it  is  clear  that  the  character  of  the  jury  will  change 
from  that  of  witnesses  to  that  of  judges  of  the  facts.  ^  When 
this  change  has  taken  place  the  importance  of  drawing  the  jury 
from  the  locality  of  the  disputed  occurrence  will  be  lessened. 
Thus  many  cases  turning  upon  disputes  as  to  venue  which 
we  find  in  the  Year  Books  became  obsolete.  They  affected 
the  court.  The  practice  of  summoning  witnesses  to  testify  to 
the  court  was  the  direct  cause  of  the  growth  of  our  modern 
law  of  evidence,  and  of  the  growth  of  new  modes  of  controlling 
the  jury  suited  to  the  jury's  new  position  of  judges  of  fact.^ 
They  affected  the  legal  profession.  They  introduced  a  dis- 
tinction between  those  who  prepared  the  pleadings  and  settled 
the  issue,  and  those  who  conducted  the  case  in  court.  It  was, 
as  we  have  seen,  in  the  sixteenth  century  that  the  Inns  of 
Court  began  to  refuse  to  allow  attorneys  to  be  called  to  the 
Bar.^  It  may  be  that  the  new  division  of  duties  which  these 
changes  introduced  helped  to  accentuate  an  existing  division  in 
the  legal  profession.  The  old  distinction  between  the  narrator 
and  the  attorney*  was  sharpened  and  perpetuated  by  a  new 
arrangement  of  the  duties  of  the  profession. 

(ii)  They  affected  the  style  of  the  law  report.  We  must 
know  the  pleadings  to  understand  the  argument  and  the  de- 
cision ;  but  it  is  the  argument  and  the  decision  in  which  the 
interest  of  the  case  centres.  Decisions  which  turn  on  mere 
matters  of  fact  can  be  eliminated.  Arguments  or  dicta  which 
have  no  bearing  upon  the  judgment  can  be  likewise  eliminated. 
Thus  the  modern  report  is  no  mere  account  of  conversations 
between  judge  and  counsel,  leading  to  the  formulation  of  an 
issue,  in  which  it  is  difficult  to  distinguish  argument  from  decision, 
and  decision  from  dictum ;  the  issue  is  already  defined ;  and 
what  is  reported  is  the  law  laid  down  by  the  court  upon  the 
issue  thus  defined.  Three  consequences  flowed  from  this.  In 
the  first  place,  the  argument  of  counsel  tends  to  diminish  in 
importance  compared  with  the  ruling  of  the  judge.  We  need 
only  compare  Plowden's  or  Coke's  reports  with  our  modern 
law  reports  to  see  the  truth  of  this.  In  the  second  place,  it 
becomes  possible  to  cite  a  case  by  name  for  the  decision  of  a 
distinct  point.  The  reports  in  the  Year  Books  are,  as  I  have 
said,  reports  of  arguments  upon  legal  topics  relevant  and  ir- 
relevant  to  the    issue.     One  case  will   often  touch  upon  many 

*  Vol.  i  336.  '^  Ibid  342-347. 

3  Vol.  ii  505-506;  L.Q.R.  xxvi  137.  *Vol.  ii  311-312. 


PROCEDURE  AND  PLEADING         655 

points :  there  are  comparatively  few  cases  which  could  be  cited 
by  name  as  laying  down  one  particular  rule.  For  this  reason 
the  Year  Books  made  excellent  material  for  Abridgments;  we 
could  hardly  construct  from  them  a  volume  of  leading  cases. 
In  the  third  place,  these  changes  had  no  small  share  in  intro- 
ducing the  modern  view  as  to  the  binding  power  of  decided 
cases.  During  the  latter  part  of  the  mediaeval  period  the  pre- 
vailing tendency  had  been  in  this  direction.^  The  new  style  of 
law  reporting  emphasized  this  tendency  and  gave  it  its  modem 
form.^ 

(iii)  These  changes  had  a  great  effect  upon  the  law.  The 
newer  mode  of  reporting  which  was  thereby  made  possible 
tended  to  greater  precision  in  the  statement  of  the  law — to  a 
greater  certainty  and  fixity  in  its  principles.  No  doubt  the  new 
mode  of  written  pleading  led  to  verbal  refinements  and  subtle- 
ties in  the  statement  of  the  case  which  too  often  defeated  justice. ^ 
As  Roger  North  points  out,  the  pleaders  were  less  under  the 
control  of  the  court  than  they  had  been  in  the  old  days.*  Perhaps, 
too,  the  greater  fixity  in  the  rules  of  law,  which  rested  on  the 
definite  authority  of  well-known  decisions,  made  the  law  less 
flexible  than  it  was  in  the  days  when  the  mode  of  reporting 
made  it  necessary  to  cite  discussions  of,  rather  than  decisions 
upon,  a  given  rule  of  law.  These  difficulties  were  felt  in  the 
latter  part  of  the  seventeenth  and  in  the  eighteenth  and  nineteenth 
centuries.  In  the  sixteenth  and  early  seventeenth  centuries  the 
advantages  of  clearness  and  certainty  must  have  been  felt  by 
both  lawyers  and  laymen.  A  case  which  really  settled  a  point 
upon  which  it  was  possible  to  cite  many  conflicting  dicta  from 
the  Year  Books  must  have  been  welcome  to  all.  In  fact,  the 
separation  of  such  things  as  the  pleadings,  the  evidence  for  the 
statements  of  fact  contained  in  the  pleadings,  and  the  decision, 
was  necessary  in  the  interests  of  legal  development.     That  the 

iVol.  ii542.  2  Bk.  iv  Pt.  I.  c.  5. 

3 See  Y.B.  3  Ed.  II.  (S.S.)  Ixviii.  Maitland  says  of  the  introduction  of 
written  pleadings  that,  "  It  forced  our  common  law  into  a  prison-house  from 
which  escape  was  difficult.  Instead  of  being  able  to  ascertain  the  opinion  of 
the  judges  about  the  various  questions  of  law  that  are  evolved  in  the  case,  the 
pleader,  without  any  help  from  the  court,  must  stake  his  reputation  and  his 
client's  fortune  upon  a  single  form  of  words ;  "  this  was  recognized  by  Hale, 
H.C.L.  212  ;  by  Boote,  op.  cit.  107-108  ;  and  by  Hale's  editor  Runnington. 

*  Lives  of  the  Norths  i  27,  28 :  "  Now  the  pleadings  are  all  delated  in 
paper,  and  so  pass  the  offices,  and  the  court  knows  nothing  of  much  the 
greater  part  of  the  business  that  passeth  through  it ;  and  when  causes  which 
they  call  real  come  on  and  require  counting  and  pleading  at  the  bar,  it  is  done 
for  form  and  unintelligibly;  and  whatever  the  serjeant  mumbles  it  is  the  paper 
book  that  is  the  text;  and  the  court  as  little  meddles  with  as  minds  what  is 
done  of  that  sort  at  the  bar ;  but  the  questions  that  arise  are  considered  upon 
the  paper  book.  All  the  rest  of  the  business  of  the  court  is  wrangling  about 
process  and  amendments,  whereof  the  latter  had  been  mostly  prevented,  if  the 
court  (as  formerly)  had  considered  the  first  acts  of  the  cause  at  the  bar  when 
offered  by  the  Serjeants." 


656        PROCEDURE  AND  PLEADING 

new  system  which  took  the  place  of  the  old  was  perfect  no  one 
can  assert.  But  we  who  saw  its  latter  end,  and  its  gradual  re- 
form or  abolition,  will  not  be  able  to  do  it  justice  unless  we  look 
at  it,  not  from  the  point  of  view  of  our  modern  needs,  but  from 
the  point  of  view  of  the  old  system  as  we  see  it  in  the  Year  Books. 
Under  this  new  system  sprang  up  the  greater  part  of  our  modern 
common  law,  which  in  our  own  day  has  supplied  the  material 
for  many  excellent  codifying  statutes.  As  the  Formula  in  Roman 
law  bridged  the  gap  between  the  period  of  the  Legis  Actiones 
and  the  procedure  of  the  later  Empire,  so  our  rules  of  procedure 
under  the  regime  of  the  strict  law  of  pleading  bridged  the  gap 
between  the  period  of  the  Year  Books  and  the  modern  Rules 
of  the  Supreme  Court.  In  both  cases  the  foundations  of  the 
greater  part  of  what  is  valuable  were  laid  in  this  intermediate 
period. 

This  period  in  the  history  of  English  law — from  the  Con- 
quest to  the  close  of  the  Middle  Ages — is  a  variegated  period. 
In  the  first  half  of  it  the  conditions  precedent  for  the  growth 
of  a  common  law  were  created ;  and  the  foundations  of  that 
law  were  laid  upon  a  basis  of  primitive  customary  rules  which 
were  selected,  coordinated,  and  restated  by  men  who  had  learned 
in  or  from  the  Italian  schools  of  law.  In  the  second  half  of  it 
many  of  its  distinctive  features  and  principles  were  settled. 

In  the  first  half  of  this  period  the  history  of  the  law  is  in 
close  touch  with  the  general  history  of  England.  It  is  impossible 
to  tell  the  tale  of  how  there  came  to  be  a  common  law  without 
constant  reference  to  those  events  of  political  and  constitutions 
history  which  made  a  common  law  possible ;  and,  in  this  pai 
of  my  work,  I  cannot  help  feeling  that  I  have  in  a  mannei 
trespassed  upon  the  domain  of  Pollock  and  Maitland's  classi< 
history  of  English  law,  which  for  many  a  year,  perhaps  foi 
many  a  century,  must  be  the  foundation  and  starting-point  of 
any  work  upon  this  subject.  To  a  large  extent  1  have  but 
summarized  the  work  of  master  hands ;  and  I  can  only  plead 
in  extenuation  that  the  trespass  was  necessary  to  ensure  com- 
pleteness of  treatment.  Nor  does  my  debt  to  that  history  stop, 
here.  **A  thing  begun  is  half  done,"  says  the  proverb;  an( 
that  history  has,  as  my  references  show,  shed  much  light  upoi 
my  path  long  after  the  reign  of  Edward  I.  I  cannot  help  feeling 
the  inadequacy  of  much  of  my  work  in  the  second  half  of  thif 
period  in  those  many  dark  places  where  that  light  has  failed. 

Since  Reeves  wrote  in  the  eighteenth  century  no  one  hi 
attempted  to  write  the  legal  history  of  the  fourteenth  and  fifteent 
centuries.  Materials  have  been  collected,  but  they  have  not 
coordinated  and  used  to  form  a  continuous  narrative ;  and  yet  ii 


PROCEDURE  AND  PLEADING         657 

is  the  period  in  the  history  of  English  public  and  private  law 
which  is  in  some  ways  the  most  important  of  all,  because  many 
of  its  external  features  and  many  of  its  doctrines  were  then 
taking  their  permanent  shape. 

The  outstanding  features  of  English  public  law  in  this  period 
are  the  establishment  by  the  crown  of  a  centralized  executive, 
a  centralized  judicial  system,  a  firm  control  over  local  government, 
and  a  representative  assembly  which,  alone  among  the  representa- 
tive assemblies  of  the  Middle  Ages,  proved  itself  to  be  an  efficient 
organ  of  government.  From  the  point  of  view  of  the  later 
history  of  England  and  Europe  the  establishment  of  such  an 
assembly  was  the  most  important  of  the  features  of  English 
public  law.  Its  establishment  was  largely  due  to  the  fact  that 
the  lawyers  who  worked  this  centralized  judicial  system  had  so 
organized  the  procedure  and  developed  the  powers  of  this  assembly 
that  it  had  become  an  integral  part  of  the  English  system  of 
government,  exercising  an  effective  control  upon  the  crown, 
and  guaranteeing  in  a  workable  fashion  the  mediaeval  ideal  of 
the  rule  of  law.  The  outstanding  feature  of  English  private 
law  is  the  development  of  its  principles  by  the  legal  profession 
into  a  logical  system.  And,  whether  we  look  at  public  or  private 
law,  it  is  essentially  the  period  of  the  Year  Books.  They  contain 
a  wonderful  collection  of  sound  principles  acutely  applied,  much 
commonsense,  and  some  shrewd  mother-wit.  Moreover,  para- 
doxical though  it  may  appear  to  those  who  have  not  studied 
them,  they  contain,  especially  towards  the  end  of  this  period, 
much  modern  law.  Many  principles  for  which  it  is  customary 
to  cite  some  modern  case  may  be  found  in  them,  sometimes  in 
germ,  sometimes  explicitly  stated.  But,  as  I  have  said,  they 
are  found  there  mixed  up  with  the  intricacies  of  a  procedure 
which  rapidly  grew  obsolete  in  the  course  of  the  two  following 
centuries,  and  interspersed  in  the  course  of  debates  which  ap- 
peared inconclusive  to  those  who,  being  accustomed  to  a  dif- 
ferent procedure  and  a  different  style  of  reporting,  had  lost 
the  clue  to  the  labyrinth  which  a  knowledge  of  the  old  system 
of  procedure  supplied. 

Much  that  was  obsolete,  much  that  was  contradictory,  required 
to  be  sifted  out  of  the  mass  of  matter  contained  in  the  Year 
Books,  and  restated  in  the  more  definite  style  of  the  modem 
law  report,  before  the  ore  which  they  contained  could  be  used. 
Good  work  was  done  by  the  printed  Abridgments.  Still  better 
work  was  done  by  some  of  the  earliest  reporters,  by  Dyer,  Plowden, 
Croke,  and  above  all  Coke.  The  cases  which  they  reported,  or 
the  commentaries  which  they  made,  were  founded  upon  the 
principles  which   they  won  from  this  mine  of  law ;   and  it  was 

VOL.   III.— 42 


658        PROCEDURE  AND  PLEADING 

not  till  the  ground  was  covered  by  the  growth  and  increase  of 
the  works  of  the  modern  reporters  that  it  became  possible  for 
the  man  who  wished  to  be  something  more  than  a  mere  practitioner 
to  neglect  the  Year  Books.  ''  Then  are  we  said  to  know  the 
law,"  said  Coke,^  "when  we  apprehend  the  reason  of  the  law, 
that  is,  when  we  bring  the  reason  of  our  law  so  to  our  reason 
that  we  perfectly  understand  it  as  our  own."  In  Coke's  day 
this  could  only  be  accomplished  by  a  study  of  the  Year  Books. 
"The  reason  of  our  law,"  is  now  restated  by  the  modern  reports, 
the  study  of  which  is  as  essential  to  the  modern  student  as  the 
Year  Books  were  to  the  students  to  whom  Coke  spoke. 

Great  additions,  as  we  shall  see,  were  made  to  the  fabric  of 
English  law  by  the  new  world — new  not  only  in  a  geographical 
but  also  in  a  social  and  in  an  intellectual  sense — which  opened 
in  the  following  period.  That  the  common  law  was  able  to 
hold  the  supremacy  which  it  had  won,  and  in  varying  degrees 
to  impress  the  mark  of  its  principles  upon  the  new  matter  thus 
introduced,  was  due  to  this  large  arsenal  of  sound  principles 
practically  applied,  collected  by  the  labours  of  the  mediaeval 
common  lawyers.  They  had  welded  into  one  unique  system 
of  public  and  private  law  the  substructure  of  local  custom  in- 
herited from  the  Anglo-Saxon  period,  the  general  rules  which 
the  great  lawyers  of  the  twelfth  and  thirteenth  centuries,  inspired 
by  the  example  of  Roman  law,  had  laid  down  as  the  practice 
of  the  king's  courts,  and  the  enacted  law  which  had  helped  to 
guide  the  development  of  the  principles  of  the  law,  or  had 
brought  it  into  conformity  with  the  new  wants  of  another  age. 
Though  the  litigiousness  of  a  partially  civilized  age,  the  technicality 
in  procedure  which  is  necessary  to  an  early  stage  in  the  history 
of  law,  and  the  collapse  of  the  government  which  marked  the 
close  of  this  period,  often  led  them  to  lay  down  as  law  rules 
which  assisted  to  pervert  justice ;  yet,  the  live  practical  atmosphere 
of  the  law  court  in  which  these  rules  were  evolved  by  the  process 
of  keen  debate,  never  let  them  lose  sight  of  the  human  needs 
and  frailties  for  the  sake  of  which  those  rules  were  being  evolved. 
Thus,  amid  much  ingenuity  which  was  misdirected,  there  was 
much  which  was  well  directed ;  and  for  better  or  worse  some 
of  its  products  still  colour  our  minds  and  govern  our  lives  in 
this  twentieth  century. 

*  Co,  Litt.  394b. 


APPENDIX 


SPECIMENS   OE  OEIGINAL  WEITS  EBOM  THE 
REGISTER 

A.  Real  Actions 

(l)   WRITS  OF   ENTRY 

Rex,  vicecomiti  Derbiae  salutem.  Praecipe  A  quod  juste  et  sine 
dilatione  reddat  B  unam  carucatam  terras  cum  pertinentiis  in  X  quod 
clamat  esse  jus  et  haereditatem  suam,  et  in  quod  idem  A  non  habet 
ingressum  nisi  per  B  patrem  [vel  matrem  vel  alium  antecessorem] 
praedicti  B  cujus  haeres  ipse  est,  qui  illud  ei  dimisit  ad  terminum  qui 
praeteriit,  ut  dicit.  Et  nisi  fecerit,  et  praedictus  B  fecerit  te  securum 
de  clamore  suo  prosequendo  ;  tunc  summone  per  bonos  summonitores 
prasidictum  A  quod  sit  coram  justitiariis  nostris  apud  Westmonasterium 
a  die  Paschae  in  15  dies,  ostensurus  quare  non  fecerit.  Et  habeas  ibi 
summonitores  et  hoc  breve.    Teste,  etc.* 

Rex,  etc.  Praecipe  A,  etc.,  in  quod  idem  A  non  habet  ingressum 
nisi  per  C  cui  praedictus  B  illud  dimisit  ad  terminum  qui  praeteriit, 
ut  dicit.*    Et  nisi,  etc.    Teste,  etc. 

Rex,  etc.  Praecipe  A,  etc.,  in  quod  idem  A  non  habet  ingressum  nisi 
post  dimissionem  quam  idem  B  inde  fecit  D  ad  terminum  qui  praeteriit. 
Et  quod  post  terminum  ilium  ad  praefatum  B  reverti  debet,  ut  dicit.s 
Et  nisi,  etc.    Teste,  etc.  [f.  228. 

(2)  WRITS  OF  FORMEDON 

Rex,  vicecomiti  salutem.  Praecipe  A  quod  juste  et  sine  dilatione 
reddat  K  manerium  de  N  cum  pertinentiis,  quod  C  dedit  D  et 
haeredibus  de  corpore  suo  exeuntibus,  et  quod  post  mortem  prae- 
dicti D  praefato  K  filio  et  haeredi  ejusdem  D  descendere  debet  per 
formam  donationis  praedictae  ut  dicit.*    Et  nisi,  etc.    Teste,  etc. 

[f.  238b. 

Rex,  etc.  Praecipe  A  quod,  etc.,  reddat  B  manerium,  etc.,  quod  C 
pater  praedicti  B  cujus  haeres  ipse  est,  dedit  I  et  F  uxori  ejus,  et 
haeredibus  de   corporibus   ipsorum  I  et  F  exeuntibus,  et  quod  post 

"  In  the  '*  per."  '  In  the  **  per  and  cuL" 

'  In  the  "post."  *  In  the  descender. 

659 


660  APPENDIX 

mortem  praedictorum  I  et  F  ad  praefatum  B  reverti  debet  per  for- 
mam  donationis  praedictae,  eo  quod  praedicti  I  et  F  obierunt  sine 
haerede  de  corporibus  suis  exeunte  ut  dicit.'    Et  nisi,  etc.    Teste,  etc. 

[f.  242. 

Rex,  etc.  Praecipe  A  quod  reddat  B  manerium,  etc.,  quod  C  dedit  D 
et  haeredibus  de  corpore  suo  exeuntibus,  ita  quod  si  idem  D  sine  haerede 
de  corpore  suo  exeunte  obiret,  praedictum  mesuagium  pragfato  B  haere- 
dibus remaneret,  et  quod  post  mortem  praedicti  D  prasf ato  B  remanere 
debet  per  formam  donationis  praedictae,  eo  quod  praedictus  D  obiit  sine 
haerede  de  corpore  suo  exeunte  ut  dicit."    Et  nisi,  etc.    Teste,  «tc. 

[f .  243. 

(3)   MESNE 

Rex,  vicecomiti  salutem.  Praecipe  A  quod  juste,  etc.,  acquietet  B  de 
servitio  quod  C  ab  eo  exigit  de  libero  tenement©  suo  quod  de  praefato 
A  tenet  in  I  unde  idem  A  qui  medius  est  inter  eos,  eum  acquietare 
debet  ut  dicit,  et  unde  queritur  quod  pro  defectu  ejus  distringitur. 
Et  nisi,  etc.    Teste,  etc.  [f.  160. 

(4)  CUSTOMS  AND  SERVICES 

Rex,  vicecomiti  salutem.  Praecipe  A  quod  juste,  etc.,  faciat  B  con- 
suetudines  et  recta  servitia  quae  ei  facerc  debet,  de  libero  tenemento 
suo  quod  de  eo  tenet  in  N  ut  in  redditibus,  arreragiis,  et  aliis  [vel  sic, 
in  homagiis,  releviis,  et  aliis.  Vel  sic,  in  sectis,  curiis,  et  aliis].  Et 
nisi  fecerit,  etc.    Teste,  etc.  [f.  159. 

(5)  DE   SCUTAGIO    HABENDO 

Rex,  vicecomiti  salutem.  Quia  dilectus  et  fidelis  noster  W  habuit 
servitium  suum  nobiscum  per  preceptum  nostrum  in  exercitu  nostro 
Scotiae  anno  regni  nostri  primo  [vel  fuit  nobiscum  per  preceptum 
nostrum  in  exercitu,  etc.,  anno,  etc.,  sicut  per  rotulos  A  constabularii 
exercitus  nostri  praedicti  nobis  constat :  vel  sic,  fecit  finem  nobiscum 
pro  servitio  suo  in  exercitu  nostro  Scotiae  anno,  etc.,  sicut  per 
certificationem  thesaurarii  et  baronum  nostrorum  de  scaccario  in 
cancellariam  nostram  de  mandate  nostro  missam  nobis  constat],  tibi 
praecipimus  quod  eundem  W  habere  facias  scutagium  suum  de  foedis 
mihtum,  quae  de  ipso  tunc  tenebantur  in  balliva  tua,  videlicet  40 
solidos  de  scuto  pro  exercitu  praedicto,  et  hoc  nuUatenus  omittas. 
Teste,  etc.  [f.  88. 

(6)  CESSAVIT 

Rex,  vicecomiti  salutem.  Praecipe  A,  etc.,  quod  reddat  B  unum 
mesuagium,  etc.,  quod  idem  A  de  eo  tenet  per  certa  servitia,  et  quod 
ad  ipsum  B  reverti  debet  per  formam  statuti  de  communi  consilio  regni 
nostri  Angliae  inde  provisi,  eo  quod  praedictus  A  in  faciendo  praedicta 
servitia  per  biennium  jam  cessavit  ut  dicit.  Et  nisi  fecerit,  etc.  Teste, 
etc.  [f.  237b. 

(7)  QUOD   PERMITTAT 

Rex,  vicecomiti  salutem.  Praecipe  A  quod  juste,  etc.,  permittat  B 
habere  quoddam  chiminum  ultra  terram  ipsius  A  in  N  quod  habere 
debet  et  solet  ut  dicit.    Et  nisi  fecerit,  etc.    Teste,  etc.        [f.  155. 

*  In  the  reverter.  '  In  the  remainder. 


APPENDIX  661 

(8)  CUI   IN   VITA 

Rex,  vicecomiti  salutem.  Praecipe  A  quod  juste,  etc.,  reddat  B  qu«c 
fuit  uxor  K  unum  mesuagium  terras  cum  pertinentiis  in  N  quod  clainat 
esse  jus  et  haereditatem  suam,  et  in  quod  idem  A  non  habet  ingressum, 
nisi  per  praedictum  K  quondam  virum  ipsius  B  qui  iliud  ei  dimisit,  cui 
ipsa  in  vita  sua  contradicere  non  potuit  ut  dicit.  Et  nisi  fecerit,  etc. 
Teste,  etc.  j^f.  232b. 

(9)  AYEL,   BESAIEL,   AND  COSINAGE 

Rex,  vicecomiti  salutem.  Praecipe  A  quod  juste,  etc.,  reddat  H  unum 
mesuagium  cum  pertinentiis  in  E  de  quo  W  avus  praedicti  H  [vel  avia, 
vel  proavus,  vel  consanguineus  praedicti  HI  cujus  haeres  ipse  est,  fuit 
seisitus  [vel  seisita]  in  dominico  suo  ut  de  fcedo  die  quo  obiit  ut  dicit. 
Et  nisi,  etc.    Teste,  etc.  [f.  226. 

(10)  DOWER,   UNDE   NIHIL   HABET 

Rex,  vicecomiti  salutem.  Praecipe  A  quod  juste,  etc.,  reddat  B  quae 
fuit  uxor  C  rationabilem  dotem  suam,  quae  eam  contingit  de  libero 
tenemento  quod  fuit  praedicti  C  quondam  viri  sui  in  N  unde  nihil 
habet  ut  dicit.    Et  nisi  fecerit,  etc.    Teste,  etc.  [f.  170. 

(11)  QUARE   IMPEDIT 

Rex,  vicecomiti  salutem.  Praecipe  W  Archiepiscopo  Cantuar.  et  R 
quod  juste,  etc.,  permittant  nos  praesentare  idoneam  personam  ad 
Ecclesiam  de  W  quae  vacat  et  ad  nostram  spectat  donationem, 
ratione  Archiepiscopatus  Cantuar.  nuper  vacantis  et  in  manu  nostra 
existentis.  Et  unde  Archiepiscopus  et  R  nos  in  juste  impediunt  ut 
dicitur.  Et  nisi  fecerint,  summoneas  per  bonos  summonitores  prae- 
dictos  Archiepiscopum  et  R,  quod  sint  coram  nobis,  etc.,  ostensuri, 
etc.    Teste,  etc.  [f.  30b. 

(12)   LITTLE   WRIT  OF  RIGHT 

Rex,  ballivis  suis  de  A  salutem.  Praecipimus  vobis  quod  sine 
dilatione  et  secundum  consuetudinem  manerii  nostri  de  A  plenum 
rectum  teneatis  L  de  uno  mesuagio  cum  pertinentiis  in  I  quod  G  ei 
deforciat :  ne  amplius  inde  clamorem  audiamus  pro  defectu  recti. 
Teste,  etc.  [f.  9. 

(13)   MONSTRAVERUNT 

Rex,  abbati  de  N  salutem.  Monstraverunt  nobis  homines  tui  [vel 
A,  B  et  C  homines  tui]  de  manerio  de  I  quod  est  de  antiquo  dominico 
coronae  Angliae  ut  dicitur,  quod  tu  exigis  ab  eis  alias  consuetudines  et 
alia  servitia  quam  facere  debent,  et  antecessores  sui  tenentes  de  eodem 
manerio  facere  consueverunt,  temporibus  quibus  manerium  illud  fuerit 
in  manibus  progenitorum  nostrorum  quondam  Regum  Angliae,  vel  in 
manu  nostra.  Et  ideo  tibi  praecipimus  quod  a  praefatis  hominibus  non 
exigas  aut  exigi  permittas  alias  consuetudines  vel  alia  servitia  quam 
facere  debent,  et  antecessores  sui  praedicti  facere  consueverunt  tem- 
poribus praedictis.  Et  nisi  ad  mandatum  nostrum  hoc  feceris  :  A 
vicecomiti  nostro  Lincolniae  id  fieri  praecipiemus.    Teste,  etc.    [f .  14 


662  APPENDIX 

(14)   QUARE   EJECIT   INFKA   TERMINUM 

Rex,  vicecomiti  salutem.  Si  A  te  fecerit  securum  de  clamore  suo 
prosequendo,  tunc  summoneas  per  bonos  summonitores  B  quod  sit 
coram  justitiariis  nostris  apud  Westmonastcrium  ostensurus  quare 
deforciat  praefato  A  unum  mesuagium  cum  pertinentiis  in  N  quod  C 
ei  dimisit  ad  terminum  qui  nondum  prseteriit,  infra  quem  terminum 
idem  C  praefato  B  mesuagium  illud  vendidit,  occasione  cujus 
venditionis  idem  B  praefatum  A  de  mesuagio  praedicto  ejecit  ut  dicit. 
Et  habeas  ibi  summonitores  et  hoc  breve.    Teste,  etc.  [f.  227. 

(15)    EJECTIO   FIRMiE 

Rex,  vicecomiti  salutem.  Si  A  te  fecerit,  etc.,  tunc  pone  per 
vadium  et  salvos  plegios  B  quod  sit  coram  justitiariis,  etc.,  ostensurus 
quare  vi  et  armis  manerium  de  I  quod  C  praefato  A  dimisit  ad 
terminum  qui  nondum  praeteriit,  intravit,  et  bona  et  catalla  ejusdem 
A  ad  valentiam  tanti  in  eodem  manerio  inventa  cepit  et  asportavit,  et 
ipsum  a  firma  sua  praedicta  ejecit,  et  alia  enormia  ei  intulit  ad  grave 
damnum  ipsius  A  et  contra  pacem  nostram.  Et  habeas  ibi  nomina 
plegiorum  et  hoc  breve.    Teste,  etc.  [f.  227b. 

(16)   DE   NATIVO   HABENDO 

Rex,  vicecomiti  salutem.  Praecipimus  tibi  quod  juste  et  sine  dila- 
tione  facias  habere  A  de  C  B  nativum  et  f ugitivum  suum,  cum  omnibus 
catallis  suis  et  tota  sequela  sua,  ubicunque  inventus  f uerit  in  balliva  tua, 
nisi  sit  in  dominico  nostro,  qui  fugit  de  terra  sua  post  coronationem 
domini  Henrici  regis  filii  Johannis.  Et  prohibemus  super  forisfacturam 
nostram,  ne  quis  eum  in  juste  detineat.    Teste,  etc.  [f.  87. 

(17)   DE   LIBERTATE   PROBANDA 

Rex,  vicecomiti  salutem.  Monstraverunt  nobis  A  et  B  soror  ejus, 
quod  cum  ipsi  liberi  homines  sint  et  parati  libertatem  suam  probare  : 
E  damans  eos  nativos  suos,  vexat  eos  injuste.  Et  ideo  tibi  praecipimus, 
quod  si  praedicti  A  et  B  fecerint  te  securum  de  libertate  sua  probanda  : 
tunc  ponas  loquelam  illam  coram  justitiariis  nostris  ad  primam  assisam 
cum  in  partes  illas  venerint :  quia  hujusmodi  probatio  non  pertinet  ad 
te  capienda.  Et  interim  eisdem  A  et  B  pacem  inde  habere  facias.  Et 
die  praefato  E  quod  tunc  sit  ibi  loquelam  suam  versus  prasfatos  A  et  B 
inde  prosecuturus  si  voluerit.    Et  habeas  ibi  hoc  breve.    Teste,  etc. 

[f .  87b. 

B.  Personal  Actions 

(l)   DEBT 

Rex,  vicecomiti  L  salutem.  Praecipe  A  quod  juste  et  sihe  dilatione 
reddat  B  centum  solidos,  quos  ei  debet  et  injuste  detinet  ut  dicit.  Et 
nisi  fecerit,  et  praedictus  B  fecerit  te  securum  de  clamore  suo  prose- 
quendo :  tunc  summone  per  bonos  summonitores  praedictum  A  quod 
sit  coram  justitiariis  nostris  apud  Westmonasterium  a  die  Paschae  in 
15  dies,  ostensurus  quare  non  fecerit.  Et  habeas  ibi  summonitores  et 
hoc  breve.    Teste,  etc.  [f .  i39t>. 


APPENDIX  668 

(2)    DETINUE 

Rex,  vicecomiti  L  salutem.  Praecipe  I  quod  juste,  etc.,  reddat  W 
catalla  ad  valenciam  centum  solidorum,  et  quandam  pixidem  cum  cartis 
scriptis  et  aliis  munimentis  in  eadem  pixide  contentis,  quae  ei  injuste 
detinet  ut  dicit.    Et  nisi,  etc.  [f.  139b. 

(3)   COVENANT 

Rex,  vicecomiti  L  salutem.  Praecipe  N  abbati  de  B  H  de  I  et  E  de 
T  quod  juste,  etc.,  teneant  W  de  N  conventionem  inter  eos  factam,  de 
viginti  acris  terrae  suae  in  K  frumento  et  alio  blado  competenti  semin- 
andis,  et  de  bladis  in  terris  praedictis  crescentibus  metendis,  et  ad 
domum  ipsius  W  sumptibus  eorundem  abbatis  H  et  E  in  eadem  villa 
cariandis.    Et  nisi  fecerint,  etc.  [f.  166. 

(4)  ACCOUNT 

Rex,  vicecomiti  Kanciae  salutem.  Praecipimus  tibi  quod  justities 
Johannem  Brown,  quod  juste  et  sine  dilatione  reddat  B  rationabilem 
computum  suum,  de  tempore  quo  fuit  ballivus  suus  in  N  et  receptor 
denariorum  ipsius  B  sicut  rationabiliter  monstrare  poterit  quod  ei 
reddere  debeat :  ne  amplius  inde  clamorem  audiamus  pro  def  ectu 
justitiae.    Teste,  etc.  [f.  135. 

(5)  TRESPASS  TO  THE   PERSON 

Rej^,  vicecomiti  Lincolniae  salutem.  Si  A  fecerit  te  securum  de 
clamore  suo  prosequendo  :  tunc  pone  per  vadium  et  salvos  plegios  B 
quod  sit  coram  justitiariis  nostris  apud  Westmonasterium  in  octavis 
sancti  Michaelis  [or  in  the  alternative  quod  sit  coram  nobis  in  octavis 
sancti  Michaelis  ubicumque  tunc  fuerimus  in  Anglia]  ostensurus  quare 
vi  et  armis  in  ipsum  A  apud  N  insultum  fecit,  et  ipsum  verberavit, 
vulneravit  et  male  tractavit :  ita  quod  de  vita  ejus  desperabatur,  et  alia 
enormia  ei  intulit,  ad  grave  damnum  ipsius  A,  et  contra  pacem  nostram. 
Et  habeas  ibi  nomina  plegiorum  et  hoc  breve.    Teste,  etc.         [f.  93. 

(6)   TRESPASS  TO   LAND  AND  GOODS 

Rex,  etc.  Si  A,  etc.  Tunc  pone,  etc.,  B  quod  sit,  etc.,  ostensurus 
quare  vi,  etc.,  clausum  ipsius  A  apud  T  fregit  et  arbores  suas  ibidem 
nuper  crescentes  succidit,  et  in  separali  piscaria  sua  ibidem  piscatus 
fuit,  et  herbam  suam  ibidem  nuper  crescentem  falcavit,  et  faenum  inde 
proveniens,  ac  piscem  de  piscaria  praedicta,  necnon  arbores  praedictas, 
et  alia  bona  et  catalla  sua  ad  valentiam  viginti  marcarum,  ac  quadra- 
ginta  libras  de  denariis  suis  in  pecunia  numerata  ibidem  inventa  cepit 
et  asportavit,  et  alia  enormia  ei  intulit,  ad  grave  damnum,  etc.  Et 
habeas,  etc.    Teste,  etc.  [f.  no. 

(7)  TRESPASS  ON  THE   CASE 

Rex,  etc.  Si  A  fecerit,  etc.  Tunc  pone,  etc.,  B  ostensurus  quare  cum 
secundum  legem  et  consuetudinem  regni  nostri  Angliae,  hospitatores  qui 
hospitia  communia  tenent  ad  hospitandum  homines  per  partes  ubi 
hujusmodi  hospitia  existunt  transeuntes  et  ineisdem  hospitantes,  eorum 
bona  et  catalla  infra  hospitia  existentia,  absque  subtractione  seu  amis- 
sione  custodire  die  et  nocte  teneantur,  ita  quod  pro  def  ectu  hospitatorum 


664  APPENDIX 

seu  servientium  suorum,  hujusmodi  hospitibus  damna  non  eveniunt  ullo 
modo  :  qnidam  malefactores  quadraginta  solidos  de  denariis  ipsius  A  in 
pecunia  numerata  in  hospitio  ipsius  B  apud  N.  hospitati  inventos,  in 
defectu  ipsius  B  et  servientium  suorum  praedictorum  ceperunt  et  aspor- 
taverunt,  et  alia  enormia  ei  intulit,  ad  grave  damnum  ipsius  A  et  contra 
legem  et  consuetudinem  supra  dictas.    Et  habeas,  etc.    Teste,  etc. 

[ff.  104,  104b. 

(8)  ASSUMPSIT   (misfeasance) 

Rex,  etc.  Si  A  fecerit,  etc.  Pone,  etc.,  ostensurus  quare  cum  idem 
B  pro  competent!  salario  suo  ad  sanandum  praedictum  A  de  morbo 
petre,  quo  tempore  graviter  detinebatur,  apud  F  assumpsisset :  idem  B 
talia  opera  colore  medicinae  eidem  A  imposuit,  et  tam  graves  cissuras 
super  ipsum  fecit,  quod  de  vita  ejus  desperabatur  :  et  sumpto  ab  eodem 
A  hujusmodi  salario,  ipsum  de  morbo  praedicto  non  curatum  reliquit 
vel  non  curavit  ad  damnum,  etc.,  20  libras  ut  dicit.  Et  habeas,  etc. 
Teste,  etc.  [f.  105b. 

(9)  ASSUMPSIT  (non-feasance) 

Rex,  etc.  Si  H  S  fecerit,  etc.  Pone,  etc.  R  F  de  B  quod  sit,  etc., 
ostensurus  quare  cum  idem  R  quasdam  arbores  ipsius  H  apud  B  nuper 
crescentes  succidere,  et  abinde  usque  mansum  ipsius  H  apud  L  infra 
certum  tempus  cariare  apud  L  assumpsisset,  idem  R  arbores  praedictas 
succidere  et  usque  mansum  praedictum  infra  dictum  tempus  cariare 
non  curavit,  ad  dampnum  ipsius  H  centum  solidorum  ut  dicit.  Et 
habeas,  etc.    Teste,  etc.  [f.  109b. 

II 

A    MANOEIAL  EXTENT 

Ryptona  Regis 

Inquisitio  facta  de  Ryptona  Regis,  per  Hugonem  Praepositum,  Um- 
fridum  de  Colevillc,  Symonem  filium  Aylwini. 

Ecclesia  est  in  donatione  Regis,  et  percipit  majores  decimas  de 
dominico. 

Pertinet  etiam  ad  eandem  una  virgata  terras,  et  una  acra  prati,  in 
puram  et  perpetuam  elemosinam. 

In  eadem  sunt  quinque  hydae  terras,  de  quibus  duae  hydae  sunt  in 
dominico,  et  tres  hydae  sokemannorum,  quae  continent  viginti  virgatas 
et  dimidiam. 

Viginti  quatuor  acrae  faciunt  virgatam. 

De  praedictis  tribus  hydis  tenet  Henricus  le  Freman  duas  virgatas,  et 
reddit  inde  per  annum  undecim  solidos  ad  quatuor  terminos,  scilicet 
in  festo  Sancti  Andreae,  Annunciationis,  Sancti  Johannis,  et  Sancti 
Michaelis,  ad  singulos  aequaliter. 

Solebat  esse  in  communa  villatae,  ut  in  talliagio  et  similibus. 

Nulla  inde  facit. 

Nicholaus  le  Stalkere  tenet  unam  virgatam  terras,  et  reddit  inde  per 
annum  duos  solidos,  unum  denarium,  ad  terminos  praescriptos,  ad 
singulos  aequaliter. 

A  festo  Sancti  Michaelis  usque  ad  Gulam  Augusti  operabitur  qualibet 
septimana  per  unum  diem,  scilicet  die  Lunae  vel  die  Mercurii,  quod- 
cumque  opus  ei  praeceptum  fuerit. 


APPENDIX  665 

Et  praeterea,  arabit  uno  die  cum  quot  capitibus  habet  in  caruca,  ita 
quod  quselibet  caruca  arabit  unam  sellionem,  sicut  jacet,  et  hoc  nisi 
festum  impediat. 

Et  tunc  per  totum  annum  computabitur  unum  festum  domino,  ct 
aliud  sibi,  praeterquani  quindecim  diebus  Natalis,  et  quindccim  diebus 
Paschae,  et  Pentecostes,  in  quibus  nee  arabit,  nee  aliud  genus  operis 
faciet. 

Quodcunque  genus  operis  f acere  debeat,  praeterquam  in  bosco,  opera- 
bitur  per  totum  annum  ab  ortu  solis  usque  ad  occasum. 

Si  debeat  colligere  virgam  mundatam  vel  palos,  colliget  et  portabit 
usque  in  curiam  unum  fesciculum  pro  opere  unius  diei. 

Si  spinas,  colliget  et  portabit  usque  in  curiam  duos  fesciculos  pro 
opere  unius  diei. 

Die  vero  quo  falcabunt  Haycroft,  tota  villata  habebit  de  bursa 
Abbatis  octo  denarios  ad  Sythale. 

Et  si  ea  die  orta  fuerit  inter  ipsos  aliqua  contentio,  dominus  Abbas 
inde  non  occasionabit  eos,  nee  implacitabit,  sed  quicquid  ibi  trans- 
gressum  fuerit  inter  ipsos,  emendabitur. 

Die  etiam  quo  falcabit,  habebit  unum  fesciculum  herbae,  ligatum 
ligamine  de  herba,  quantum  poterit  levare  super  hastam  falcis  suae,  ita 
quod  si  hasta  conf ringatur  prae  ponderositate  herbae,  non  occasionabitur 
inde,  sed  amittet  herbam  ;  et  hoc  habebit  tantum  uno  die. 

Tota  villata,  una  cum  carro  vel  carrectis  domini  Abbatis,  carriabit  ad 
diem  suum,  et  tassabit  totum  fenum. 

Ad  hybernagium  seminabunt  duo  terram  tenentes  unam  rodam  de 
frumento  proprio,  et  habebunt  singuli  eorum  in  autumno  sequent!  unam 
garbam  de  eodem  frumento,  quantum  poterit  ligare  uno  ligamine,  pro 
suo  semine. 

A  Gula  Augusti  usque  blada  reponantur  in  horrea,  operabitur  qualibet 
septimana  per  tres  dies,  scilicet  die  Lunae,  Mercurii,  et  Veneris. 

Ita  scilicet,  quod  si  dies  Gulae  Augusti  die  Lunae  venerit,  ilia  septi- 
mana non  operabitur  nisi  duobus  diebus,  scilicet  die  Mercurii  et  Veneris. 

Nullam,  quamdiu  messis  duraverit,  faciet  aruram. 

Ad  precariam  veniet  quilibet,  qui  falcem  portare  potest,  tam  terram 
tenentium,  quam  aliorum,  praeter  uxores  eorum,  et  habebunt  singuli 
eorum  unum  panem,  carnem,  et  cervisiam,  et  ad  diem  proprium  mittet, 
quilibet  unum  hominem  ad  metendum,  ad  reddendum  cibum  precariae. 

A  tempore  vero  quo  blada  plene  fuerint  coUecta,  et  ostia  grangiarum 
serrata,  usque  ad  festum  Sancti  Michaelis,  operabitur  omni  eodem  modo, 
sicut  post  festum  Sancti  Michaelis. 

Praepositus,  qui  per  annum  duraverit  in  praepositura,  habebit  fundum 
unius  mullionis  feni,  spissitudinis  quod  possit  ipsum  perforare  uno  ictu 
f  urcae  f  erreae. 

Sciendum  etiam,  quod  quodcunque  opus  fecerit,  vel  ubicunque 
operatus  fuerit  infra  villam,  veniet  ad  dinarium  suum,  et  post  dinarium 
redibit  ad  opus  suum. 

Fulco  Stalkere  tenet  unam  virgatam  eodem  modo,  quo  Nicholaus. 

Willelmus  Oky  et  Robertus  filius  Swain  tenent  duas  dimidias  virgatas 
eodem  modo,  quo  Nicholaus. 

Willelmus  filius  Adae  tenet  unam  virgatam  eodem  modo,  quo 
Nicholaus. 

Bartholomaeus  filius  Simonis  tenet  duas  virgatas,  et  facit  pro  utraque 
illarum,  sicut  Nicholaus  pro  sua. 

Johannes  filius  Aylwini  tenet  unam  virgatam  eodem  modo,  quo 
Nicholaus. 


666  APPENDIX 

Johannes  filius  Andreae  tenet  unam  virgatam    eodem  modo,  quo 
Nicholaus. 

Thomas  Derlyng  et  Henricus  Serviens  tenent  duas  dimidias  virgatas 
et  faciunt  sicut  Nicholaus. 

Aluredus  et  Johannes  de   Esthorpe  tenent  duas  dimidias  virgatas 
eodem  modo,  quo  Nicholaus. 

Wiilelmus  de  Somerforde,  et  Bartholomaeus  filius  Alexandri  tenent 
duas  dimidias  virgatas  eodem  modo,  quo  Nicholaus. 

Thomas   Palmere  et    Cristina  vidua  tenent  duas  dimidias  virgatas 
eodem  modo,  quo  Nicholaus. 

Hugo  filius  Simonis  et  Thomas  Archier  tenent  duas  dimidias  virgatas 
eodem  modo,  quo  Nicholaus. 

Arnulphus  filius  Rogeri  et  Umfridus  tenent  duas  dimidias  virgatas 
eodem  modo,  quo  Nicholaus. 

Adam  Neuman  et  Robertus  Akerman  tenent  duas  dimidias  virgatas, 
sicut  Nicholaus. 

Ricardus  filius  Hugonis  et  Hugun  filius  Ricardi  tenent  duas  dimidias 
virgatas,  sicut  Nicholaus. 

Matilda  Palmere  tenet  unam  virgatam  eodem  modo,  quo  Nicholaus. 

Gunilda  vidua  et  Simon  fihus  Aylwini  tenent  duas  virgatas  eodem 
modo,  quo  Nicholaus. 

Hugo  Praepositus,  et  Radulfus  frater  ejus,  tenent  duas  dimidias  vir- 
gatas eodem  modo,  quo  Nicholaus. 

Brythwoldus  filius  Rogeri  tenet  dimidiam  virgatam,  et  facit  pro  ea 
quantum  pertinet  ad  dimidiam  virgatam,  sicut  Nicholaus. 

Ricardus  le  Soere  tenet  unam  crof tam,  et  unam  acram  terrae,  et  reddit 
inde  per  annum  quatuor  denarios  ad  quatuor  praescriptos  terminos. 

Et  praeterea,  operatur  qualibet   septimana   per  unum  diem,  sicut 
virgatarius. 

Hugo  Greyling  tenet  unam  crof  tam  terrae,  et  facit  in  omnibus  sicut 
[Ricardus]  le  Soere. 

Hugo  filius  Ricardi  tenet  unam  croftam,  et  unam  rodam  terrae,  et 
facit  pro  eis  in  omnibus  sicut  Hugo  Greylyng. 

Inquirendum  est  de  Hynlande. 

[Ramsey  Cart.  (R.S.)  i  pp.  397-400,  no.  ccxx. 


Ill 

EARLY  CONVEYANCES 

(l)  THE  LAND  BOOK 

f  In  nomine  sancti  saluatoris  dei  et  domini  nostri  Ihesu  Christi, 
regnante  et  gubernante  eodem  domino  Ihesu  simulque  spiritu  sancto 
gubernacula  in  imis  et  in  arduis  disponendo  ubique  regit  !  Licet 
sermo  sapientium  consiliumque  prudentium  stabilis  permaneat,  tamen 
ob  incertitudine  temporalium  rerum,  diuinis  numinibus  muniendo, 
perscrutando,  pro  ignotis  et  incertis  euentis,  stabilienda  roborandaque 
in  deo  uiuo  et  uero  sunt.  Qua-propter  ego  Ccenulfus  gratia  dei  rex 
Merciorum,  uiro  uerando  in  Christi  charitate  summo  pontificalis  apice 
decorato,  Uulfredo  archiepiscopo  dabo  et  concedo  aliquam  partem 
terrae  juris  mei,  quae  mihi  largitor  omnium  bonorum  deus  donare 
dignatus  est,  pro  intimo  caritatis  affectu,  ut  apostolus  ait,  hilarem 
enim  datorem  diligit  deus.     Et  hoc  est  in  loco  qui  dicitur  Binnanea, 


APPENDIX  667 

circiter  xxx  iugera,  inter  duos  rivos  gremiales  fluminis  quod  dicitur 
Stur.  Et  haec  terra  libera  perinaneat  in  pcrpetuam  possessionem 
aeclesiae  Christi.  Quod  si  quisquis  huic  largitioni  contradixerit,  con- 
tradicat  eum  deus,  ct  denegat  ingressum  coelestis  uitae.  Actum  est  hoc 
anno  dominicae  incarnationis  dccc.xiiii°  Indict.  VI.  his  testibus  con- 
sentientibus  atque  confirmantibus,  quorum  nomina  nota  sunt. 

t  Ego  Ccenuulf  gratia  dei  rex  Merciorum  hanc  donationis  confirma- 
tionem  signo  crucis  Christi  roboraui. 

f  Ego  Uulfred  archiepiscopus  consensi  et  subscripsL 

f  Ego  Denebyrht  episcopus  consensi  et  subscripsi. 

f  Ego  Uulfhard  episcopus  consensi  et  subscripsi. 

f  Signum  manus  Eadberhti  ducis. 

f  Signum  manus  Ealhheardi  ducis. 

f  Signum  manus  Ceoluulfi  ducis. 

[Earle,  Land  Charters  98,  99. 

(2)  THE   LMU 

Anno  dominicae  incarnationis  dcccc.lxii.  Ego  Oswoldus  superni 
rectoris  fultus  juvamine  praesul  cum  licentia  Eadgari  regis  Anglorum 
ac  ^Ifheri  ducis  Merciorum  uni  levitarum  meorum  qui  a  gnosticis  noto 
Ealfherd  nuncupatur  vocabulo  ob  ejus  fidele  obseqium  quandam  ruris 
particulam  unam  videHcet  mansam  quod  soHto  vocatur  nomine  Cum- 
tun  cum  omnibus  ad  se  rite  pertinentibus  liberahter  concessi  ut  ipse 
vita  comite  fideHter  perfruatur  et  post  vitae  suae  terminum  duobus 
quibus  voluerit  cleronomis  de  relinquat,  quibus  etiam  defunctis  rus 
predictum  cum  omnibus  utensilibus  ad  usum  primatis  aecclesiae  Dei  in 
Weogorna  ceastre  restituatur  immunis. 

+  Ego  Oswaldus  Dei  providentia  archipraesul  hanc  meam  donationem 
confirmavi. 

(Followed  by  seventeen  other  names — two  priests,  one  deacon,  and 
the  rest  clerks.) 

[Birch,  Cartularium  Saxonicum  no.  1089. 

(3)  WRIT  FORM  OF  CONVEYANCE 
(1 1 14-30) 

Reinaldus  abbas  Ramesiensis  Hugoni  de  Bochland,  Rogero  Leof- 
stano,  Ordgaro,  et  omnibus  aliis  baronibus  Lundoniae,  salutem, 

Sciatis  me  concessisse  cum  fratrum  consensu  in  capitulo,  huic 
Willelmo  filio  Teotri  illam  terram  in  feoudum  sibi  et  heredi  ejus, 
quam  Osgodus  Albus  tenuit  de  Sancto  Benedicto  ad  eundem  censum, 
quo  ille  eam  tenuit,  dum  viveret,  scihcet  pro  quinquaginta  solidis. 

Ad  hanc  conventionem  hi  testes  sunt,  videlicet  Andreas  de  Londonia, 
Wido,  Radulphus  de  Feltre,  Edveruuinus  nepos  abbatis,  Herveus 
Aurifex,  Henricus  de  Sancto  Albano. 

[Ramsey  Cart.  (R.S.)  i  p.  130,  no.  xliii. 

(4)  TRANSITION   BETWEEN  THE  ANGLO-SAXON  AND  ANGLO-NORMAN  FORMS 
OF  CONVEYANCE 

(1 134) 

In  nomine  Sanctae  et  Individuae  Trinitatis,  Patris  et  Filii  et  Spiritus 
Sancti 


668  APPENDIX 

Ego  Albreda  filia  Remelini,  quas  fui  uxor  Eustachii  de  Sellea,  omni- 
bus praesentibus  et  futuris  notum  facio,  quod  paucis  annis  post  obitum 
viri  mei  evolutis,  divina  miseratione  respecta  et  inspiratione  com- 
puncta,  pro  salute  animae  meae,  et  viri  mei,  et  antecessorum  meorum, 
dedi  et  concessi,  et  hac  praesenti  carta  mea  confirmavi,  Deo,  et  ecclesiae 
Sancti  Benedicti  de  Ramesia,  et  abbati  et  monachis  ibidem  Deo  ser- 
vientibus,  in  puram  et  perpetuam  elemosinam,  manerium  de  Waltona, 
quod  jure  hereditario  meum  fuit,  tenendum  ipsi  ecclesiae  inperpetuum, 
cum  omnibus  appendiciis  et  pertinentiis  suis,  infra  villam  et  extra, 
scilicet  in  terris,  in  pratis,  in  pascuis,  in  bosco,  et  in  piano,  in  aquis 
et  mariscis,  cum  insula  quae  Anglice  Higkeneia  appellatur,  et  cum 
omnibus  aliis  rebus,  cum  libertatibus  quoque  et  consuetudinibus  eidem 
terrae  pertinentibus,  sicut  ego  vel  aliquis  praedecessorum  meorum 
umquam  liberius  et  quietius  tenuimus.  Volo  itaque  et  firmiter  con- 
cedo,  quod  praedicti  ecclesia  et  monachi  habeant  et  teneant  praedictum 
manerium  inperpetuum,  cum  omnibus  pertinentiis  suis,  et  quietum  et 
absolutum  a  me  et  ab  omnibus  heredibus  meis,  et  ab  omni  humana 
servitudine  et  exactione,  quantum  ad  me  et  heredes  meos  pertinet. 
Hanc  autem  donationem  meam  feci  praedictis  ecclesiae  et  monachis, 
praesentibus,  et  assentiente  domino  Waltero  de  Bolebech,  de  cujus 
feudo  fuit  ipsum  manerium,  et  Hugone  filio  et  herede  ipsius  Walteri, 
et  Eustachio  filio  et  herede  meo,  in  praesentia  Christianissimi  regis 
Henrici,  anno  ab  Incarnatione  Domini  nostri  Ihesu  Christi  millesimo 
centesimo  tricesimo  quarto,  regni  vero  ipsius  Henrici  regis  tricesimo 
quinto. 

Et  ut  haec  mea  donatio  firma  sit  et  stabilis,  eam  sigilli  mei  impres- 
sione  curavi  roborare.  Sub  his  testibus,  domino  meo  Waltero  de  Bole- 
bech domini  feuodi  illius,  et  Hugone  fiUo  et  herede  ipsius ;  domino 
Henrico,  Archidyacono  Huntedoniae  ;  Eustachio  filio  et  herede  meo, 
Brien  filio  Galfridi  de  Scalariis,  Berengario  Monacho,  Henrico  de 
Wichentone,  Widone  Juvene,  Rogero  Mowyn,  Godrich  de  Ailingtona, 
Alin  de  Gillinges,  Roberto  de  Cuningtone,  Willelmo  de  Lindeseya, 
Johanne  filio  Widonis  de  Burwelle  ;  Willelmo  Britone,  cum  hominibus 
suis,  Roberto  et  Alemmo ;  Rogero  et  Osketel  Clericis  ;  Willelmo  Coco, 
Godman  de  Laushille,  et  multis  aliis. 

Quisquis  igitur  hanc  meam  donationem  infringere  vel  delere  prae- 
sumpserit,  deleat  eum  Deus  de  libro  vitae,  et  cum  Dathan  et  Abyron  in 
profundum  gehennae  ignium  demergetur.  Amen.  Qui  vero  eam  farmare, 
solidare,  et  ampliare  studuerint,  vitam  et  requiem  sempiternam  cum 
Sanctis  omnibus  obtineant  inperpetuum  ;  Amen,  Amen,  Amen. 

[Ramsey  Cart.  (R.S.)  i  pp.  155,  156,  no.  xcii. 

(5)  INDENTURE  FORM  OF  CONVEYANCE 
(1215-23) 

Hec  est  conventio  facta  inter  dominum  A  abbatem  et  conventum 
Egneshamie  et  Robertum  le  Grant  de  Finestok,  scilicit  quod  predicti 
abbas  et  conventus  tradiderunt  et  concesserunt  predicto  Roberto 
terram  suam  de  Finestok  cum  quodam  assarto,  quam  deliberaverunt 
de  manibus  Roberti  Arsic  et  Petri  Staninges,  quam  ipsi  habuerunt  et 
tenuerunt  occasione  quarumdam  conventionum  inter  eos  factarum, 
habendam  et  tenendam  illi  et  heredibus  imperpetuum  de  predictis 
abbate  et  conventu  libere,  quiete,  pacifice,  integre,  reddendo  inde 
annuatim  dictis  abbati  et  conventui  quatuor  solidos  sterlingorum  ad 
quatuor  anni  terminos,  videlicet  ad  festum  sancti  Thome  apostoli  xii 


APPENDIX  669 

denarios,  ad  Annunciacionem  beate  Marie  xii  denarios,  ad  Nativitatem 
sancti  Johannis  Baptiste  xii  denarios,  et  ad  festum  sancti  Michaelis 
xii  denarios  pro  omnibus  servitiis  et  omnibus  exactionibus  dictis  abbati 
et  conventui  pertinentibus,  salvo  servitio  domini  regis,  scilicet  quantum 
pertinet  ad  vicesimam  partem  unius  militis,  ita  tamen  quod  nee 
Robertus  nee  ejus  heredes  aliquid  de  predieta  terra  dabunt  alicui  in 
feodum,  vel  ad  nrmam  perpetuam  tradent,  vel  invadiabunt,  aut  vendent 
aut  aliquo  modo  alienabunt,  nisi  dictis  abbati  et  conventui,  vel  per  ip- 
sorum  lieentiam  et  voluntatem.  Et  predictus  Robertus  et  heredes  sui 
conservabunt  supra  predictos  abbatem  et  eonventum  et  omnes  suos 
per  omnia  acquietabunt  versus  dominum  regem  et  dominum  Falcasium 
de  plegiagio,  quod  factum  fuit  versus  dominum  Falcasium  pro  delibera- 
tione  ejusdem  terre,  quando  saisiata  fuit  in  manu  domini  regis  et  in 
manu  domini  Falcasii ;  ita  quod  nee  abbas  nee  conventus,  nee  Petrus 
clericus  abbatis  vel  ejus  plegii  aliquod  damnum  incurrent  versus  ali- 
quem  pro  ilia  terra.  Preterea  memoratus  Robertus  concessit  et  con- 
nrmavit  pro  se  et  heredibus  suis  memoratis  abbati  et  conventui 
excambium  quod  fecit  cum  magistro  P.  de  prato  suo  ex  utraque 
parte  de  Teppewelle  cum  orto  adjacente  pro  domo  Lewrich  et  quadam 
parva  purprestura,  quas  predictus  P.  sibi  concessit,  sicut  eontinetur  in 
carta  quam  idem  P.  habuit  de  eo,  liberum  et  quietum  imperpetuum 
secundum  formam  et  tenorem  memorate  carte  sue.  Item  idem 
Robertus  obligavit  se  et  heredes  suos  per  hoc  eyrographum  suum, 
quod  de  cetero  fideles  existent  dictis  abbati  et  conventui  in  omnibus 
et  precipue  de  predicto  servitio  fideliter  faciendo :  ita  quod  nisi  de 
dicto  servitio  et  aliis  rebus  eis  debitis  fidelitatem  eis  servaverint,  libere 
eapient  dictum  tenementum  in  manus  suas,  sine  spe  quod  dictus 
Robertus  nee  ejus  heredes  umquam  aliquid  inde  recuperent.  Et  pro 
hae  traditione  et  concessione  dedit  dictus  Robertus  dictis  abbati  et 
conventui  quadraginta  solidos  sterlingorum.  Hec  autem  fideliter  ob- 
servanda  pro  se  et  heredibus  suis  memoratus  Robertus  tactis  sacro- 
sanctis  juravit.  Et  in  hujus  rei  testimonium,  tam  abbas  et  conventus 
quam  supradictus  Robertus  huie  scripto  signa  apposuerunt.  Hiis 
testibus,  Johanne  porterio,  domino  Willelmo  Blundo,  Avenello, 
Waltero  de  Submuro,  Ricardo  de  Submuro,  Roberto  Marescallo, 
Hernaldo  Frankelano,  et  multis  aliis. 

[Eynsham  Cart.  (Oxford  Hist.  Soe.)  i  pp.  146,  147,  no.  197. 

(6)  DEED  POLL  FORM  OF  CONVEYANCE 
(1241-64) 

Omnibus  Christi  fidelibus,  ad  quos  presens  scriptum  pervenerit, 
Nicholaus  Scissor  de  Sewelle  et  Ysabella  uxor  ejus  salutem  eternam 
in  domino.  Noverit  universitas  vestra  nos  remisisse  et  quietum 
clamasse  domino  abbati  et  conventui  de  Eggneshame  totum  jus  et 
clamium,  quod  habuimus  vel  habere  potuimus  de  tenemento  Juliane  filie 
Johannis  Watemon  de  Sevewelle  et  de  tenemento  Alicie  filie  Willelmi 
de  Stortone ;  ita  quod  nee  nos  nee  heredes  nostri  aliquod  jus  vel 
clamium  de  prefatis  tenementis  aliquo  tnodo  vendicabimus  vel  ven- 
dicare  poterimus.  Pro  hae  autem  remissione  et  quieta  elamacione 
dedit  nobis  dictus  abbas  viginti  solidos  in  gersummam.  Et  ut  haec 
remissio  et  quieta  clamacio  rata  et  stabilis  in  perpetuum  permaneat, 
huie  presenti  scripto,  quia  sigillum  proprium  non  habui,  sigillum 
domini  Hugonis  de  Tywe  apposui.     Hiis  testibus. 

[Eynsham  Cart.  (Oxford  Hist.  Soc.)  i  p.  217,  no.  310. 


670  APPENDIX 

(7)   FINES 

Twelfth  Century 

Haec  est  finalis  concordia  facta  in  curia  domini  Regis  apud  West- 
monasterium  die  Jovis  proxima  post  festum  Sancti  Marci  Ewangele 
anno  regni  Regis  Henrici  secundi  xx°  viii°  coram  R.  Wintoniae  et  J. 
Norwiciae  episcopis  et  Rannulpho  de  Glanvill  justiciario  domini  Regis  et 
Ricardo  Thesaurario  domini  Regis  et  Rogero  filio  Reinf ridi  et  Willelmo 
Ruffo  et  Thoma  filio  Bernardi  et  Willelmo  Basseth  et  Michelo  Beleth 
et  Willelmo  Torel  et  Osberto  de  Glanvill  et  Willelmo  de  Abbervill  et 
Rannulpho  de  Gedding  et  Gervasio  de  Cornhill  et  ceteris  baronibus  et 
fidelibus  domini  Regis  qui  tunc  ibi  aderant :  Inter  Robertum  abbatem 
de  Rameseye  et  Thomam  de  Tanton  de  tota  terra  quam  praedictus 
Thomas  habuit  in  feria  Sancti  Yvonis  scilicet  quod  pred  ictus  Thomas 
totam  terram  illam  cum  domibus  et  omnibus  pertinenciis  suis  quietam 
clamavit  eidem  abbati  et  monasterio  de  Rameseye  de  se  et  heredibus 
suis  inperpetuum  pro  xx  marcis  quas  idem  abbas  ei  dedit  et  Thomas 
cartam  suam  quam  inde  habuit  reddidit  eidem  abbati. 

[Hunter,  Fines  (R.C.)  xxi,  xxii. 

Fourteenth  Century 

Haec  est  Finalis  Concordia  facta  in  Curia  Domini  Regis  apud  West- 
monasterium  a  die  Sancti  Michaelis  in  tres  septimanas,  Anno  regni 
Edwardi  Regis  tercii  a  conquestu  quadragesimo  octavo,  et  regni  ejus- 
dem  Regis  Franciae,  tricesimo  quinto,  coram  Roberto  Bealknapp, 
Willelmo  de  Withyngham,  et  Rogero  de  Kirketon  Justiciariis,  et  aliis 
Domini  Regis  fidelibus  tunc  ibi  praesentibus,  Inter  Henricum  le 
EngHsh  et  Margaretam  uxorem  ejus  querentes,  Et  Johannem  Roughey 
et  Agnetem  uxorem  ejus  deforciantes,  de  uno  Mesuagio,  centum  acris 
terrae,  sex  acris  prati,  sex  acris  pasturas,  decem  acris  bosci,  et  tribus 
solidatis  et  quatuor  denaratis  redditus,  cum  pertinenciis  in  Kertelyngg, 
Ditton  Valence,  Ditton  Camoys,  Steuchesworth,  Unde  placitum  Con- 
vencionis  summonitum  fuit  inter  eos  in  eadem  Curia,  scilicet  quod 
praedicti  Johannes  et  Agnes  recognoverunt,  prasdicta  tenemcnta  cum 
pertinenciis  esse  Jus  ipsius  Henrici ;  et  ilia  eisdem  Henrico  et  Mar- 
garetae  reddiderunt  in  eadem  Curia;  Habenda  et  tenenda  eisdem 
Henrico  et  Margaretae  et  haeredibus  ipsius  Henrici,  de  Capitalibus 
dominis  foedi  illius,  per  servicia  quae  ad  praedicta  tenementa  pertinent 
imperpetuum.  Et  praeterea,  iidem  Johannes  et  Agnes  pro  se  et  haeredi- 
bus ipsius  Agnetis,  quod  ipsi  Warrantizabunt  praedictis  Henrico  et 
Margaretae  et  haeredibus  ipsius  Henrici  praedicta  tenementa  cum  perti- 
nenciis contra  omnes  homines  imperpetuum.  Et  pro  hac  recognicione, 
reddicione,  Warrantia,  fine,  et  concordia,  iidem  Henricus  et  Margareta 
dederunt  praedictis  Johanni  et  Agneti  Centum  marcas  argenti. 

[Madox,  Form.  Angl.  no.  ccclxxxii. 

IV 

WILLS 

(l)  TENTH  CENTURY 

In  nomine  domini.  Ego  Wlfgiva  omnibus  notum  facio  hoc  quod 
omnipotenti  Deo    concedere    volo   post  dies  meos   pro  anima  mea ; 


APPENDIX  671 

villam  scilicet  dc  Bramcestria  do  Deo  et  sancto  Benedicto  Ramesiae ; 
hoc  volo  ut  firmiter  stet  et  a  nullo  hominum  immutetur.  Hoc  scriptum 
fuit  in  tribus  partibus  divisum,  quarum  una  remansit  in  manibus 
-^thelstani  episcopi,  alteram  mecum  retinui,  tertiam  obtuli  Ramesiam. 
Deus  omnipotens  custodiat  omnes  quicunque  hoc  custodire  voluerint, 
et  qui  hoc  immutare  attentaverit  Deus  ilium  ad  justitiam  et  emenda- 
tionem  revocet.    Amen.  [Birch,  Cartularium  Saxonicum  no.  1059. 

(2)   FOURTEENTH  CENTURY 

In  Dei  nomine,  Amen.  Noverint  universi  me  Henricum  de  Ingelby 
prebendarium  prebendarum  de  Southcave  et  de  Castre  in  ecclesiis 
CathedraHbus  Ebor.  et  Lincoln,  de  Oxton  et  Crophill  in  ecclesia 
collegiata  Suthwell  Ebor.  dioceseos,  ac  eciam  prebendarius  in  ecclesia 
Collegiata  de  Derlington,  necnon  rector  ecclesiae  parochialis  de 
Halghton  Dunelm.  dioceseos,  scientem  nichil  morte  cercius  nilque 
incercius  ejus  hora,  in  sana  et  plena  deliberata  memoria  mea  condere 
testamentum  meum  in  hunc  modum.  In  primis  lego  animam  meam 
Illi  qui  me  preciosissimo  sanguine  suo  redemit.  Item  lego  corpus 
meum  miserum  ad  sepeliendum  absque  pompa  saeculari  in  ecclesia 
Cathedrali  Ebor.  in  eventu  quo  apud  Ebor.  vel  prope  Ebor.  decedere 
me  contingat.  Et  si  forte  alibi,  in  loco  aliorum  beneficiorum  meorum 
vel  prope  decessero,  tunc  sepelliatur  corpus  praedictum  in  ecclesia 
beneficiali  illius  loci,  videlicet  ante  magnum  altare,  si  commode  fieri 
poterit ;  si  vero  in  loco  distant!  per  triginta  miliaria  ab  aliquo  bene- 
ficiorum meorum  de  medio  fuero  subtractus,  tunc  sepeliatur  corpus 
meum  in  ecclesia  parochiali  vel  infra  cimeterium  ejusdem  loci.  Item 
lego  novae  fabricae  ecclesiae  Ebor.  xl/  in  eventu  quo  Ebor.  me  sepelliri 
contingat;  sin  autem,  1  marcas.  Item  lego  religiosis  subscriptis  ad 
orandum  specialiter  pro  animabus  Thomae  de  Ingilby  patris  mei  et 
Edelinae  matris  meae,  dominorum  Johannis  de  Ingilby,  David  de 
Wollour,  et  Willielmi  de  Dalton  ac  Willielmi  de  Benham,  necnon  pro 
salubri  statu  Domini  Regis  dum  vixerit,  et  pro  anima  sua  cum  ab  hac 
luce  migraverit,  et  pro  animabus  omnium  benefactorum  tam  meorum 
quam  dictorum  amicorum  meorum,  et  omnium  aliorum  fidelium 
defunctorum,  summas  subscriptas,  videlicet,  Abbati  et  Conventui 
Rievall  xx/.  Priori  et  Conventui  de  Gisburne  xx  marcas.  Abbati  et 
Conventui  de  Jorevall  xx  marcas,  Priorissae  et  Conventui  de  Nuncotom 
xl/.  Priorissae  et  Conventui  de  Neceham  v  marcas,  Fratri  Hugoni  de 
Karliolo  cs.  Thomae  de  Ellerbek  monacho  xl.  Item  cuilibet  ordini 
Fratrum  Mendicancium  Ebor.  xls.  Item  lego  capitulo  Ebor.  cistam 
meam  ferream,  quae  fuit  Magistri  Thomae  de  Nevell,  et  jam  stat 
revestiario  ecclesiae  Ebor.  Volo  tamen  quod,  expedita  primitus 
sepultura  mea,  absque  pompa  seculari,  ut  praemittitur,  honeste  tamen 
detractionem  debitaque  mea  quibuscumque  debere  contigerit  tempore 
mortis  meae  ante  omnia  persolvantur.  Residuum  vero  omnium 
bonorum  meorum  ubicumque  inventorum  dedi  et  concessi  dilectis 
michi  in  Christo  Magistris  Johanni  de  Waltham  canonico  Ebor.  et 
Johanni  de  Norton,  Curiae  Ebor.  advocato,  habendum  et  disponendum 
plene  et  libere  absque  computacione  coram  quocunque  Ordinario  inde 
facienda.  Eosdem  autem  magistros  Johannem  et  Johannem,  dominura 
Johannem  de  Waddesworth  rectorem  ecclesiae  de  Brytteby,  Johannem 
de  Hayton,  Thomam  atte  Garth,  et  Andreamde  Stookfacio  et  constitute 
meos  veros  et  legitimes  executores,  per  presentes,  quibus  sigillum  meum 
apposui  in  testimonium  premissorum.     Hiis  testibus,  domino  Roberto 


672  APPENDIX 

Rectore  ecclesiae  de  Wynston  Dunelm.  dioceseos,  domino  Ricardo  de 
Clowdesdal  vicario  chori  Ebon,  domino  Ricardo  Oliver  capellano, 
Hugone  de  Blakestone,  Willielmo  de  Cleveland,  Willielmo  Baldyng 
coco,  et  aliis.  Datum  Ebor.  xv  die  Junii  anno  Domini  mccclxxv. 
[Prob.  XX  Oct.  MCCCLXXV.] 

[Testamenta  Eboracensia  (Surt.  Soc.)  i  pp.  94,  95. 

(3)    FIFTEENTH   CENTURY 

In  Dei  nomine.  Amen.  Vicesimo  octavo  die  Mensis  Novembris, 
Anno  Domini  Millesimo  cccclxxiii.  Y  Custans  Potkyn,  hoole  and 
fresch,  make  my  Wille  in  this  maner.  First  I  bequeath  my  sowle  to 
Almyghty  God,  to  owre  blessed  Lady,  and  to  all  the  Holy  Company  of 
hevyn  ;  my  body  to  be  beryed  in  Chalke  Chirche.  Also  y  be  quethe 
to  the  hy  auter  viiid.  Also  to  the  Rode  lyght  a  Cowe  with  v  Ewes. 
Also  to  owre  Lady  of  Pete'  iii  Ewes.  Also  to  the  lyght  of  Seynt  John 
Baptyste  iiii  Ewes.  Also  to  a  Torche  vis.  viiid.  Also  to  Alson  Potkyn 
iiii  quarter  barly  ;  Also  a  Cowe  with  iiii  shepe,  iiii  peyre  shets  parte  of 
the  best,  with  a  bord  cloth  of  diapur,  Another  of  playne,  iii  Towels  of 
diapur  with  ii  keverletts,  iii  blanketts,  a  mattras,  a  bolster,  iiii  pelewes, 
vi  Candelstikes.  To  Marget  Crippis  ii  Candelstikes,  a  peyre  shetis,  a 
quarter  barly.  To  Thomas  Harry  iii  quarter  barly,  a  peyre  shetis,  with 
a  blanket.  To  Thomas  Grippe  a  peyre  shetis.  To  John  Martyn  a 
peyre  shetis.  To  every  gode  child  a  boz  barly.  The  residue  of  my 
godes  I  will  that  Richard  and  John  my  Sones,  myn  Executours,  have 
and  dispose  for  the  helthe  of  my  Sowle  as  they  see  that  best  ys. 

Indorsed  thus.  Probatum  fuit  praesens  testamentum  coram  nobis 
Officiali  Roffensi  apud  Derteforde  xxviii  die  mensis  March,  Anno 
Domini  mcccclxxiiii  ;  Et  commissa  est  administracio  omnium  bonorum 
infrascriptae  defunctae  Ricardo  Martyn  et  Johanni  Martyn  Executoribus 
infranominatis,  in  forma  juris  juratis  et  admissis. 

[Madox,  Form.  Angl.  no.  dcclxxviii. 


STATUTES  MERCHANT  AND  STAPLE 

STATUTE    MERCHANT 

Noverint  universi  etc.  nos  A.B.  et  G.D.  teneri  et  per  praesens  scriptum 
de  Statuto  Mercatorum  firmiter  obligari  W.P.  in  quinquaginta  libris 
sterlingorum.  Solvendis  eidem  W.P.  aut  suo  certo  Atturnato  hoc  scrip- 
tum ostendendo,  executoribus  vel  administratis  suis,  in  festo  P.  proximo 
futuro  post  datum  presentium.  Et  nisi  fecerimus  volumus  et  per  praesentes 
concedimus  quod  curret  super  nos  et  utrumque  nostrorum,  hasredum, 
executorum,  et  administratorum  nostrorum,  poena  et  districtio  provisae  in 
statuto  domini  Regis  apud  Acton  Bumel  et  Westmonasterium  pro  Mer- 
chandisis  edito  tempore  domini  Edwardo  quondam  Regis  Angliae,  pro- 
genitoris  dominae  Reginae  nunc  existentis.  In  cujus  rei  testiminonio  huic 
presento  scripto  meo  sigillum  meum  una  cum  sigillo  dictae  dominas  nostrae 
reginae  de  Recognitione  debita  villae  de  K.  super  Hull  praedictis  praesentibus 
appensi.  Datum  coram  R.J.  Majore  villae  de  K.  super  Hull  praedictae  et 
I.L.  clerico  ad  hujus   modi  recognitionem   debiti  pro  Merchandisis   in 


APPENDIX  678 

eadem  emptis  recuperandis  ordinatam   et   provisam   accipiendis  deputatis 
30  die  Jan.  Anno  regni  dictae  dominae  Reginae  XXXVI. 

West,  Symboleography  (Ed.  161 5)  Pt.  I.  §  106. 

STATUTE  STAPLE 

Noverint  universi  per  praesentes  me  I.H.  de  L.  in  comitatu  Sussex 
armigerum  teneri  et  firmiter  obligari  I. A.  in  etc.  Solvendis  eidem  I.A.  aut 
suo  certo  Atturnato  hoc  scriptum  ostendendo,  heredibus  vel  executoribus  suis, 
in  festo  Purificationis  beatae  Mariae  virginis  proximo  futuro  post  datum  prae- 
sentium.  Et  si  defecero  in  solutione  debiti  predict!  volo  et  concedo  quod 
tunc  curret  super  me  heredes  et  executores  meos  pcEna  in  statuto  stapulo  de 
debitis  pro  Merchandisis  in  eadem  emptis  recuperandis  ordinata  et  provisa. 
Datum  XI.  die  Feb.  anno  regni  dominae  nostras  Elizabethae  dei  gratia  etc 
West,  Symboleography  (Ed.  161 5)  Pt.  I.  §  108. 

VI 
GEANTS  OF  WARDSHIP  AND  MARRIAGE 

A  GRANT   BY  THE  CROWN 

Regina  etc.  Sciatis  quod  nos  de  gratia  nostra  speciali,  ac  ex  certa 
scientia  et  mero  motu  nostris,  dedimus  et  concessimus,  ac  per  praesentes 
damus  et  concedumus  dilecto  servienti  nostro  A.B.  uni  Gromeriorum 
Cameras  nostras,  wardum  et  maritagium  R.R.  filii  et  heredis  A.R.  viduae  de- 
functae :  Neconon  custodiam  et  gubernationem  tam  corporis  praedicti  R. 
quam  omnium  terrarum  et  tenementorum  pratuum  pascuorum  et  pasturarum 
suorum  quorumcumque,  jacentium  et  existentium  in  parochia  de  B.  in  comitatu 
nostro  S.  una  cum  redditu  et  proficuo  eorundem,  modo  in  dono  et  dispositione 
nostris  existentibus,  ratione  minoris  aetatis  prasdicti  R.  Habendum  et  tenendum 
wardum  et  maritagium  praedicti  R.  etc.  ac  caetera  praemissa,  cum  omnibus  et 
singulis  suis  pertinentibus  praefato  servienti  nostro  et  assignatis  suis,  durante 
minore  aetate  praedicti  R.  de  dono  nostro,  absque  computo  sive  aliquo  alio 
nobis  vel  heredibus  nostris  pro  praemissis  reddendo  solvendo  vel  faciendo. 
Eo  quod  expressa  mentio  etc.     In  cujus  rei  etc. 

West,  Symboleography  (Ed.  161 5)  Pt.  I.  §  328. 

A  GRANT   BY   A   SUBJECT 

Omnibus  etc.  I  Comes  O  salutem.  Sciatis  me  praefatum  comitem  pro 
quadam  pecuniae  summa  mihi  per  T.M.  generosum  prae  manibus  soluta, 
dedisse  et  per  praesentes  concessisse  eidem  T.  custodiam  W.B.  filiae  et  heredis 
R.B.  jam  defuncti,  Ac  omnium  terrarum  tenementorum  et  hereditamentorum 
quae  ad  manus  meas  devenire  poterint  ratione  minoris  aetatis  ejusdem  W.  post 
mortem  dicti  R.  qui  de  me  tenuit  die  quo  obiit  per  servitium  militare.  Haben- 
dum et  tenendum  custodiam  praedictam  ac  maritagium  praedictae  W.  praefato 
T.  et  assignatis  suis  quousque  praedicta  W.  ad  plenam  setatem  viginti  unius 
annorum  pervenerit,  et  quamdiu  in  manibus  meis  fore  contigerit,  seu  re- 
manere  deberet.  Et  si  contingat  praedicta  W.  obire  antequam  ad  plenam 
aetatem  viginti  unius  annorum  pervenerit,  herede  suo  infra  aetatem  existente, 
tunc  sciatis  me  praefatum  Comitem  pro  consideratione  praedicta  dedisse  et  per 
praesentes  concessisse  praefato  T.  custodiam  ejusdem  heredis  ac  omnium 
terrarum  tenementorum  et  haereditamentorum  praedictorum  una  cum  maritagio 
ejusdem  heredis,  et  sic  de  herede  in  heredem  quousque  unus  eorum  ad  plenam 
aetatem  viginti  unius  annorum  pervenit.  In  cujus  rei  testimonium  etc. 
West,  Symboleography  (Ed.  161 5)  Pt.  I.  §  331. 

VOL.  in.— 43 


674  APPENDIX 

VII 

THE  LAW  TEEMS  AND  THE  DIES  IN  BANCO,  OE 
EETUEN  DAYS 

A  good  account  of  the  origin  and  description  of  the  law  terms  as  they 
existed  till  the  year  1875  is  given  by  Reeves  (H.E.L.  i  232,  233)  in  the 
following  passage  :  "  The  division  of  the  year  into  term  and  vacation  has 
been  the  joint  work  of  the  church  and  necessity.  The  cultivation  of  the  earth 
and  the  collection  of  its  fruits  necessarily  require  a  time  of  leisure  from  all 
attendance  on  civil  affairs ;  and  the  laws  of  the  church  had,  at  various  times, 
assigned  certain  seasons  of  the  year  to  an  observance  of  religious  peace, 
during  which  all  legal  strife  was  strictly  interdicted.  What  remained  of 
the  year  not  disposed  of  in  this  manner  was  allowed  for  the  administration 
of  justice.  The  Anglo-Saxons  had  been  governed  by  these  two  reasons  in 
distinguishing  the  periods  of  vacation  and  term  ;  the  latter  they  called  dies 
pads  regis ^  the  former  dies  pads  Dei  et  sanctce  ecclesice  (citing  Leg.  Edw. 
Confess,  c.  9).  The  particular  portions  of  time  which  the  Saxons  had  allowed 
to  these  two  seasons  were  adhered  to  by  the  Normans,  together  with  other 
Saxon  usages,  and  their  term  and  vacation  were  as  follows  :  It  seems  that 
Hilary  term  began  Octabis  Epiphanice — that  is,  the  13th  of  January,  and 
ended  on  Saturday  next  before  Septuagesima,  which,  being  movable,  made 
this  term  longer  in  some  years  than  others.  Easter  term  began  Octabis 
Paschce  (nine  days  sooner  than  it  now  does),  and  ended  before  the  vigil  of 
Ascension  (that  is,  six  days  sooner  than  it  now  does).  Trinity  term  began 
Octabis  Pentecostes,  to  which  there  does  not  seem  to  have  been  any  precise 
conclusion  fixed  by  the  canon  which  governed  all  the  rest ;  it  was  therefore 
called  terminus  sine  tertnino ;  it  seems  to  have  been  determined  by  nothing 
but  the  pressing  calls  of  haytime  and  harvest,  and  the  declension  of  business 
very  natural  at  that  season.  But  the  conclusion  of  it  was  fixed  afterwards  by 
Parliament ;  by  Stat.  51  Hen.  III.  it  was  to  end  within  two  or  three  days  after 
quindena  sancti  Johannis — that  is,  about  the  12th  of  July.  .  .  .  Michaehnas 
term  began  on  Tuesday  next  after  St.  Michael,  and  was  closed  by  Advent ; 
but  as  Advent  Sunday  is  movable,  and  may  fall  upon  any  day  between  the 
26th  of  November  and  4th  of  December,  therefore  the  28th  of  November,  as 
a  middle  period,  by  reason  of  the  feast  and  eve  of  St.  Andrew,  was  appointed 
for  it."  In  the  sixteenth  century  the  king  sometimes  varied  the  dates  of  the 
term  for  special  reasons  by  his  prerogative  (see  Wriothesley's  Chron.  (C.S.)  i 
loi,  102  ;  ii  5)  ;  and  some  slight  modifications  in  the  dates  of  these  terms 
were  from  time  to  time  made  by  statute — 32  Henry  VIII,  c.  21  shortened 
Trinity  term;  16  Car.  I.  c.  6  and  24  George  II.  c.  48  affected  the  duration 
of  Michaelmas  term  ;  11  George  IV.,  i  William  IV.  c.  70  §  6  provided  for  the 
dates  of  the  beginning  and  ending  of  all  the  terms.  The  result  of  these  statutes 
was  that  at  the  beginning  of  the  nineteenth  century  Michaelmas  term  lasted 
from  November  8-22,  Hilary  January  11-31,  Easter  April  15  to  May  8,  and 
Trinity  May  22  to  June  12  (L.Q.R.  xxxiv  320).  As  is  pointed  out  by  Mr. 
Mathew  in  the  article  in  the  L.Q.R.  just  cited,  these  terms  were  too  short  for 
the  business  to  be  done.  Therefore  the  judges  sat  after  term  at  Serjeants' 
Inn.  "  This  judicial  practice  was  sanctioned  and  extended  by  3  Geo.  IV.  c. 
102,  which  enabled  the  judges  to  sit  for  all  purposes  at  Serjeants'  Inn  Hall, 
or  *  some  other  convenient  place,'  for  the  dispatch  of  business."  The  terms 
thus  fixed  continued  till  their  abolition  by  the  Judicature  Act  (36,  37  Vict, 
c.  66  §  26). 

When  the  parties  in  theory  appeared  in  person  before  the  courts  (vol.  ii 
315-316)  it  was  convenient  to  have  certain  fixed  days  in  each  term  on  which 
both  the  original  writs  should  be  returned,  and  on  which  each  of  the  other 


APPENDIX  675 

Steps  in  the  complicated  process  upon  that  writ  should  take  place.  The 
earliest  definite  regulation  upon  this  matter  seems  to  have  been  that  made  by 
the  statute  regulating  the  dies  communes  in  banco  (vol.  ii  222  ;  Reeves 
H.E.L.  i  499).  The  result  of  fixing  specific  days  at  stated  intervals  from 
each  other  meant  that,  between  each  step  in  the  action,  there  must  elapse  a 
fixed  time ;  and  this,  as  Reeves  has  shown,  was  the  main  cause  of  the 
enormous  delays  caused  by  process  alone  (above  624-626)  during  this  period. 
The  instance  which  he  gives  (H.E.L.  i  500)  will  illustrate,  better  than  pages 
of  explanation,  this  cause  of  the  weakness  of  common  law  precedure  all 
through  this  period  and  later.  "  Suppose  a  summons  in  a  personal  action 
was  returnable  in  octabis  Michaelis^  the  6th  of  October,  the  process  of 
attachment  issued  upon  that  would  be  returnable  in  octabis  Hilarii^  the 
20th  of  January.  If  the  party  did  not  appear,  there  issued  a  second  attach- 
ment/^r  z«^/2V?r^  J //^^zV?  J,  returnable  in  octabis  Trinitatis^  the  19th  of  June. 
If  he  did  not  then  appear,  there  issued  a  writ  of  habeas  corpus  to  take  the 
body,  returnable  in  crastino  Animarum,  the  3rd  of  November.  Thus 
ended  the  solemnitas  attachiamentorum^  and  so  passed  away  a  full  year  and 
almost  one  month.  If  the  sheriff  returned  upon  this  last  writ,  as  it  is  pro- 
bable he  would,  non  est  inventus^  they  then  resorted  to  the  process  of  dis- 
tress, and  a  distringas  per  terras  et  catalla  would  issue,  returnable  in  tres 
septimanas  Paschce^  the  8th  of  May.  If  he  did  not  appear  to  this,  there 
issued  another  distringas^  returnable  in  quindena  Michaelis,  the  13th  of 
October.  If  he  did  not  appear,  another  distringas  issued,  ne  quis  manum 
apponaty  returnable  in  quindena  Hilarii,  the  27th  of  January.  If  he  still 
did  not  appear,  another  writ  issued  for  a  caption  into  the  king's  hands,  return- 
able in  quindena  Trinitatis^  the  26th  of  June.  .  .  .  And  here  ended  the  distress 
per  terras  et  catalla^  and  the  space  of  one  year  and  more  than  seven  months, 
so  that  the  whole  of  this  process,  from  the  return  of  the  summons  to  the  re- 
turn of  the  last  distringas^  would  continue  two  years  and  more  than  eight 
months."  In  addition,  as  we  have  seen,  infinite  delays  were  possible  by 
means  of  essoins,  and  by  the  process  of  fourching  in  essoins  (above  624,  625). 
Small  improvements  were  made  from  time  to  time,  and,  as  I  have  said, 
process  upon  some  actions  was  more  speedy  than  upon  others.  But,  notwith- 
standing the  inconvenience  of  this  system  of  fixed  days  for  the  performance 
of  certain  steps  in  the  action,  the  system  itself  lasted  on  with  but  slight  modi- 
fications (e.g.  by  13  Charles  II.  st.  2  c  2  §  6)  till  1832.  Blackstone  tells  us 
(Comm.  iii  277,  278)  that  there  are  in  each  term  stated  days  called  "  days  in 
bank" — dies  in  banco ;  that  is,  days  of  appearance  in  the  court  of  Common 
Pleas.  They  were  generally  at  intervals  of  about  a  week  from  each  other,  and 
regulated  by  some  church  festival.  All  writs  must  be  made  returnable  on 
some  one  of  these  return  days.  The  first  return  day  of  the  term  the  court 
sat  to  hear  essoins,  but,  as  three  days  of  grace  were  always  allowed  to  the 
party  within  which  he  might  either  appear  or  essoin  himself,  the  court  never 
sat  till  the  fourth  day  after  the  nominal  beginning  of  the  term  ;  and  this  was 
an  old  practice.  "  Before  the  fourth  day  of  term,"  said  Stouford^  J.,  in  1346, 
"  it  has  not  been  the  custom  for  anyone  to  begin  any  plea,  except  a  proffer 
on  a  writ  of  right"  (Y.B.  20  Ed.  III.  (R.S.)  i  456  ;  and  see  Dyer  270a  ;  Cro. 
Car.  102).  The  Uniformity  of  Process  Act,  1832  (2,  3  Will.  IV.  c.  39), 
which  created  uniform  forms  of  writs  (vol.  i  222,  240)  and  a  uniform  process 
thereon,  swept  away  this  system  by  enacting  (§  11)  that,  "if  any  writ  of 
summons  .  .  .  issued  by  authority  of  this  Act  shall  be  served  or  executed  on 
any  day,  whether  in  term  or  vacation,  all  necessary  proceedings  to  judgment 
and  execution  may,  except  as  hereinafter  provided,  be  had  thereon,  without 
delay,  at  the  expiration  of  eight  days  from  the  service  or  execution  there- 
of, on  whatever  day  the  last  of  such  eight  days  may  happen  to  fall,  whether 
in  term  or  vacation." 


676  APPENDIX 

VIII 

SOME  CRITICISMS  ON  THE  DECISION  OF  THE  HOUSE 
OF  LORDS  IN  THE  CASE  OF  THE  ADMIRALTY  COM- 
MISSIONERS  V.  S.S.  AMERIKA  i 

In  this  case  the  House  of  Lords  have  accepted  the  view  that  the  rule  in 
Baker  v.  Bolton  ^  is  not  derived  from  Roman  Law,  and  that  it  is  quite  distinct 
from  the  rules  based  on  the  maxim  actio  personalis  moritur  cum  persona. 
But  they  have  upheld  it ;  and,  in  order  to  justify  their  decision,  they  have 
appealed  to  legal  history.  Lord  Sumner  gives  us  a  sketch  of  the  history  of 
criminal  procedure  from  the  days  of  hot  and  wite.*  He  draws  from  it  the 
conclusion  that  the  action  of  trespass  never  dealt  with  homicide,  and  that  this 
was  the  real  gist  of  the  decision  in  Higgins  v.  Butcher.^  But  this  view  ignores 
the  reasons  given  by  the  judges  themselves  in  the  last-mentioned  case,  and  it 
does  not  explain  why  in  the  case  of  homicide,  as  in  the  case  of  any  other 
felony,  the  right  of  action  for  tort  cannot  be  exercised  after  the  claims  of 
justice  have  been  satisfied.  An  attempt  to  give  this  explanation  is  made  by 
Lord  Parker.  He  lays  it  down,  in  the  first  place,  that  for  a  death  caused  by 
an  act  of  violence  on  the  part  of  the  defendant  no  action  of  trespass  would  lie 
— the  death  "  could  not  be  alleged  without  alleging  felony,  and  for  felony 
trespass  would  not  lie." '  This  he  considers  to  be  an  absolute  rule  of  law, 
not  based  on  the  rule  of  public  policy  that  in  the  interests  of  justice  a  felon 
must  be  prosecuted  before  an  action  in  tort  will  lie.®  But  he  allows  that  in 
the  case  of  some  felonies,  e.g.  burglary  or  larceny,  the  prohibition  of  suing  in 
tort  is  based  simply  upon  this  rule  of  public  policy,  and  that  therefore,  when  the 
felon  has  been  prosecuted,  the  right  to  sue  in  tort  can  be  exercised.^  But 
what  is  the  basis  of  this  distinction  between  homicide  and  other  felonies  ?  It 
cannot  be  based  upon  a  distinction  between  felonies  committed  against  the 
person  and  felonies  committed  against  property,  as  there  is  authority  for 
saying  that  in  a  case  of  rape  the  civil  remedy  is  only  suspended  in  accordance 
with  the  ordinary  rule  of  public  policy.^  The  only  basis  which  appears  possible 
seems  to  be  contained  in  the  following  passage  of  his  judgment :  "  Before 
any  question  of  public  policy  can  arise  it  has  first  to  be  ascertained  whether 
civil  proceedings  will  lie  at  all.  Most  felonies  involve  a  wrong  less  than  a 
felony,  and  for  such  a  wrong  civil  proceedings  will  lie  when  once  the  demands 
of  public  policy  have  been  satisfied.  But  there  may  be  felonies  when  the  only 
wrong  is  the  felony  itself,  and  it  may  well  be  that  the  felony  cannot  be  made 
the  subject  of  complaint  in  civil  proceedings."  **  This  test  will  no  doubt  dis- 
tinguish cases  in  which  a  felony  gives  rise  to  an  action  in  tort  from  cases  in 
which  it  does  not.  But,  tried  by  this  test,  a  homicide  which  causes  a  master 
to  lose  the  services  of  his  servant,  or  a  husband  to  lose  the  consortium  of  his 
wife,  should  give  rise  to  actions  ji><?r  quod  servitium  or  consortium  amisit  when 
the  claims  of  justice  have  been  satisfied,  because  the  killing  of  a  servant  or 
wife  involves  a  "  wrong  less  than  felony  "  to  the  master  or  husband,  no  more 
and  no  less  than  larceny  involves  a  wrong  less  than  felony  to  the  owner  of 
stolen  goods.  I  should  contend  therefore  that  according  to  Lord  Parker's 
own  theory  the  rule  in  Baker  v.  Bolton  cannot  be  supported.  It  is  true  that 
both  Lord  Parker  and  Lord  Sumner  seem  to  regard  these  actions  per  quod 

*  [1917]  A.C.  38.  2  (i8o8)  I  Camp.  493. 

3[i9i7]  A.C.  at  pp.  56-60.  4(1606)  I  Yelv.  89. 

**  [1917]  A.C.  at  p.  46.  « Ibid  at  p.  47. 

"^  Ibid  at  pp.  47-48. 

8  Ibid  at  pp.  48-49;  Smith  v.  Selwyn  [1914]  3  K.B.  98. 

»[i9i7]  A.C.  atp.  49. 


APPENDIX  677 

servitium  or  consortium  amisit  as  somewhat  anomalous  survivals  from  the 
time  when  society  was  based  on  status  rather  than  on  contract.^  But  even  if 
they  are  anomalous  they  still  exist ;  and  the  House  of  Lords  in  this  very  case 
admitted  that  they  could  not  set  aside  well-established  rules.  It  does  not 
follow,  said  Lord  Sumner,'  "in  the  case  of  a  legal  system  such  as  ours  that 
a  principle  can  be  said  to  be  truly  a  part  of  the  law  merely  because  it  would 
be  a  more  perfect  expression  of  imperfect  rules,  which  though  imperfect  are 
well  established  and  well  defined."  It  is  obvious  that  these  actions />^r  quod 
servitium  and  per  quod  consortium  amisit  are,  to  say  the  least,  as  well 
established  as  this  rule  in  Baker  v.  Bolton;  nor  do  they  give  rise  to  such 
obvious  injustice  as  that  rule.  Ultimately  they  are  based  upon  the  very 
peculiar  history  of  the  legal  relations  of  master  and  servant,  which  has  caused 
those  relations  to  retain  a  number  of  ideas  based  on  the  conception  that  the 
servant  occupies  a  status.  The  Statutes  of  Labourers  deliberately  introduced 
into  the  contractual  relation  some  of  the  incidents  of  older  status  ; '  and  the 
courts  of  common  law,  quite  apart  from  those  statutes,  held  that  the  master's 
right  to  his  servant's  service  was  definite  enough  to  be  safeguarded  by  an 
action  in  tort  against  a  person  who  retained  a  servant  after  notice  of  an 
employer's  claims.**  It  is  pretty  clear  also  that  the  famous  decision  in  Lumley 
V.  Gye '  to  the  effect  that  a  persuasion  to  break  any  contract  without  just  cause 
or  excuse  is  actionable,  is  traceable  historically  to  the  firmness  with  which  the 
judges  have  maintained  the  idea  that  the  master  has  something  in  the  nature 
of  a  real  right  to  his  servant's  services.  It  seems  to  me  therefore  that  the 
legal  history  to  which  the  House  of  Lords  has  appealed  to  justify  the  rule  in 
Baker  v.  Bolton  has  proved  to  be  a  very  hostile  witness.  It  follows  that  we  can 
only  regard  the  decision  as  perhaps  the  strongest  illustration  which  we  have 
in  our  books  of  the  manner  in  which  communis  error  sometimes /a«V  ius. 

^  [1917]  A.C.  at  pp.  44-45,  60. 

'Ibid  at  p.  56;  apparently  the  Solicitor  General  pointed  out  that  the  re- 
versal of  Baker  v.  Bolton  would  be  a  very  similar  action  to  the  reversal  of  the  case 
of  Thorogood  v.  Bryan  by  the  case  of  The  Bernina — a  reversal  universally  approved  ; 
the  parallel  was  apt ;  but  Lord  Sumner  remarked  that  '•  this  is  hardly  the  right  view 
to  take  of  your  Lordship's  judicial  functions  nowadays ;  "  no  doubt  it  is  not  their 
lordships'  duty  to  upset  well-ascertained  rules  of  law ;  but  it  is  as  obviously  their  duty 
to  correct  clearly  mistaken  decisions;  nor  is  it  obvious  that  the  views  held  of  their 
lordships'  functions  have  so  radically  changed  between  1888 — the  date  when  the  case 
of  the  Bernina  was  decided— and  1917 ;  and  this  truth  is  abundantly  proved  by  the 
case  of  Bourne  v.  Keane  [1919]  A.C.  815. 

8  Vol.  ii  461-464 ;  Bk.  iv  Pt.  I.  c.  i. 

^  Blake  v.  Lanyon  (1795)  6  T.R.  221.  »  (1853)  2  E.  and  B.  216. 


INDEX 


Abatement,  plea  in,  614,  629,  630-631 ; 

of  a  nuisance,  279. 
Abbot,  relation  to  property  of  the  house, 

472.    473  ;  liability  on   contract,   473  ; 

in  tort,  473-474. 
Abbot  and   Monastery,   nature  of  the 

corporation,  481. 
Abeyance,  of  a  peerage,  174  ;  of  seisin, 

108. 
Abjuration,     69,     70,     303-304;     see 

Sanctuary. 
Abridgments,  the,  617. 
Accessories,   302 ;    see    Principal   and 

Accessory. 
Accident,  no  defence  to  action  in  tort, 

376. 

Account,  action  of,  426-428,  512,  578- 
579,  584  ;  to  enforce  implied  and  quasi 
contracts,  427-428 ;  against  a  guardian 
in  socage,  65 ;  between  tenants  in 
common,  427. 

Account,  representative  compelled  to,  in 
ecclesiastical  courts,  593-594 ;  illustra- 
tion of  an,  593-594- 

Accroaching  the  Royal  Power,  290. 

Accruer,  184. 

Accusatory  form  of  Criminal  Pro- 
cedure, 621-622. 

Act  of  Parliament,  creation  of  a  cor- 
poration by,  475,  476-477- 

Actio,  bonorum  vi  raptorum,  320 ;  furti, 
320,  338,  34O1  363  ;  spolii,  8. 

Actio  Personalis  Moritur,  etc.,  333, 
334.  335.  576-579.  584 ;  common  law 
modification  of,  579-582;  statutory 
modifications  of,  578-579.  584-585  ; 
why  so  restricted  a  liability  was  toler- 
ated, 582-583  ;  its  application  to 
assumpsit,  451-452. 

Actions,  Real — definition,  3-4;  import- 
ance of,  4  ;  those  which  enforced  rights 
to  corporeal  hereditaments,  5-14;  as 
between  landlord  and  tenant,  15-17; 
rights  to  particular  estates,  17-19; 
rights  to  incorporeal  things,  19-20; 
rights  to  a  villein,  20;  family  relation- 
ships, 20-24 ;  arising  from  incapacity 
of  persons,  24  ;  rights  to  ecclesiastical 
property,  24-26;  arising  out  of  abuse  of 
process,  26;  separation  from  personal 


actions,  27-29 ;  relation  to  real  pro- 
perty, 29  ;  were  a  hierarchy  of  actions, 
90,  91,  329.  On  the  case—fot  con- 
spiracy, 405-407 ;  against  a  bailee  for 
negligence,  448-449- 

Administration  Bond,  558. 

Administrators,  537,  566-571 ;  origins, 
566-569 ;  devolution  of  office,  569 ; 
vesting  of  the  property,  569 ;  effect  of 
revocation  of  grant,  569-571 ;  limited 
grants,  567  ;  joint  grants,  585 ;  duty  to 
distribute,  556;  neglect  of  this  duty, 
556-557 ;  become  the  successors  ab  in- 
testate, 558;  Hughes  V.  Hughes,  558- 
559;  statute  of  distribution,  559-560; 
liability  to  account,  560-561 ;  husband 
not  liable,  561 ;  see  Executors. 

Admiralty,  court  of,  387. 

Admission,  of  villein  status,  493. 

Advancement,  562. 

Adventif,  plea  of,  499. 

Advowson,  24,  97,  98,  99,  100  ;  138-143. 

Against  Common  Right,  things  which 
were,  168-169. 

Age,  infants'  claim  of,  624. 

Agency,  of  wife,  528-529;  of  necessity, 

530- 

Agreements,  bare,  not  actionable,  412- 
413- 

Aid  Prayer,  121,  624. 

Aids,  58,  66-67,  272. 

Akermanni,  200. 

Alexander  HI.,  139. 

Alfred's  Laws,  287. 

Alienation  of  Land,  73-87 ;  restrictions 
in  interest  of  heirs,  73  76;  feudal  re- 
strictions, 76-85;  on  tenants  in  chief, 
83-85 ;  on  tenants  by  serjeanty,  47 ; 
principle  of  freedom  of,  85  ;  partial  re- 
strictions on,  85-86;  mortmain,  86-87; 
restraints  in  earlier  law,  103-104;  in 
boroughs,  270-271. 

Allegiance,  56, 461-462 ;  relation  to  law 
of  treason,  288. 

Ameliorating  waste,  123. 

Amendment  of  Pleas,  see  Pleas, 
amendment  of. 

Amerciaments,  391,  425. 

Ames,  286,  321,  349,  427,  432,  438,  440, 

443.  447- 
Ancient  Demesne,   204,  257,   263-269; 
have  tenants  in  the  freehold,  267-269. 


679 


680 


INDEX 


Anderson,  C.J.,  393. 

Animals,  damage  by,  373. 

Animus  furandi,  361-362. 

Annuities,  28,  152,  153. 

Antoninus,  494. 

Appeals,  the  criminal,  311,  312,  316,  317, 
322-323,  607,  608-609 ;  precedence  of, 
to  the  indictment,  329 ;  indictment  of  a 
person  appealed,  609 ;  relations  between 
procedure  on,  and  that  on  an  indictment, 
609;  of  larceny,  320,  321,  322-323, 
327 ;  of  murder,  335 ;  of  robbery,  320, 
322-323,  327. 

Appendant  Rights,  142 ;  advowsons, 
142 ;  rights  of  common,  147-151, 

Apprenticeship,  contract  of,  518. 

Approvement,  146-149. 

Approvers,  608-609. 

Appurtenant  Rights,  142 ;  advowsons, 
142;  rights  of  common,  147-151. 

Argumentative  Pleas,  633-634. 

Arraignment,  on  finding  of  a  jury  in  a 
civil  action,  610-61 1. 

Arrest,  powers  of,  598-604. 

Arson,  370. 

Ascendants,  exclusion  of,  175-177. 

ASCRIPTICII  GLEBMf  542. 

Assigns,  need  for  use  of  word  in  convey- 
ances, 106,  107;  use  of  word  in  con- 
nection with  warranty,  161-162. 

Assize  of  Arms,  493  ;  of  darrein  present- 
ment, 24-25;  the  grand,  6,  7,  180;  of 
mort  d'ancestor,  18,  123,  180,  184 ;  of 
novel  disseisin,  5,  8-1 1,  12,  14,  19-20, 
26,  27,  99,  131, 147,  151, 153,  213,  214  ; 
216,  283;  of  nuisance,  11,  28, 154,  156- 
157;  utrum,  25.26. 

Assizes,  the,  90. 

Association,  need  to  limit  right  of,  478- 
479. 

Assumpsit,  422,  423,  426,  427 ;  for  mis- 
feasance, 429-434 ;  for  non-feasance, 
434-441;  absorption  of  debt,  442-444; 
extended  to  enforce  executory  contracts, 
444-446;  to  enforce  implied  contracts, 
446-448 ;  used  against  carriers  and  inn- 
keepers, 448  ;  against  bailees,  448-450 ; 
to  enforce  quasi  contracts,  450-451 ; 
develops  contractual  characteristics, 
451-452 ;  but  still  used  as  an  action  in 
tort,  448-450,  452 ;  does  not  lie  for  an 
action  for  a  fixed  sum  of  money,  418, 
441 ;  how  it  differs  from  debt,  442 ; 
transmissibility  on  death,  451-452,  576, 
577-578,  584;  used  as  alternative  to 
trover,  580-582. 

Attachment,  391,  392,  394. 

Attainted  Persons,  458. 

Attempts  to  Murder,  315. 

Attorneys,  summary  process  against, 
392 ;  infant  cannot  appoint,  513,  519 ; 
connection  with  the  drawing  of  plead- 
ings,   645*646 ;    they  employ    protho- 


notaries'  clerks,  651 ;  attempt  to  pre- 
vent these  clerks  from  being  attorneys, 
652 ;  absorb  work  of  prothonotaries  and 
their  clerks,  652,  653. 

Attornment,  77,  82,  97,  98,  100,  234, 
245. 

Auterfois  acquit,  611,  614. 

auterfois  convict,  614. 

Ayton,  John  of,  540. 

Azo,  223. 


B 


Babington,  136. 

Bacon,  Francis,  182,  376,  461. 

Bagally,  L.J.,  582. 

Bailees,  can  bring  actio  furti,  320;  pos- 
session of,  336 ;  not  regarded  as  owners, 
336-337 ;  treated  as  owner  as  against 
all  but  bailor,  337;  liability  in  early 
law,  337-339;  rights  accounted  for  by 
their  liability  over,  340-341,  342-344  ; 
influence  of  Roman  conceptions  of 
liability,  341-342;  question  as  to  the 
basis  of  their  liability,  344-347;  can- 
not commit  larceny,  362 ;  their  liability 
for  negligence,  448-450. 

Bailiffs,  603 ;  liability  for  misdeeds  of 
their  servants,  387. 

Bailment,  336. 

Bailors,  regarded  as  owners,  336-337, 
345.  347;  rights  in  early  law,  337-338  ; 
influence  of  Roman  idea  of  dominium, 
339-341 ;  gets  increased  rights,  348- 
349;  allowed  to  bring  trespass,  348; 
and  detinue,  348-349. 

Bargain  and  Sale  by  Executors,  274. 

Barony,  45-46 ;  tenure  by,  38,  45. 

Barring  Estates  Tail,  117-120. 

Base  Fee,  120. 

Bastardy,  answer  to  a  claim  to  a  villein, 
498,  499. 

Bateson,  16,  274. 

Battle,  trial  by,  7. 

Beaumanoir,  341,  342. 

Becket,  294. 

Bede,  78. 

Beneficiary,  rights  to  sue  in  debt  and 
detinue,  425-426,  426-428. 

Bereford,  C.J.,  19,  26,  115,  122,  298, 
526,  529,  568. 

Berewicke,  C.J.,  260,  382,  625. 

Bernard  of  Pa  via,  311. 

Bigami,  299,  300. 

Billing,  646,  647. 

Birth,  villeins  by,  499. 

Black  Death,  203-204,  205,  500. 

Blackstone,  3,  106,  139,  142,  170,  176, 
183,  185,  186,  232,  237,  265,  269,  281, 
301,  302,  458,  459,  471,  479,  545. 

Blood  Feud,  the,  311. 

BoLLAND,  114. 

Bona  Vacantia,  72,  353. 


INDEX 


681 


BoNiTARY  Ownership,  4. 

Book,  the  Anglo-Saxon,  103,  225-226, 
227-228,  235. 

bookland,  73. 

Booth,  5,  625. 

bordarii,  200. 

bordwell,  348. 

Borough  English,  201,  271. 

Boroughs,  corporate  character  of,  474- 
475;  guardianship  in,  272-273,  512; 
enforcement  of  contracts  in,  423-424; 
customs  as  to  the  land  law,  269-275 ; 
why  they  diverge  from  the  common 
law,  269 ;  rules  resulting  from  codifica- 
tion of  custom,  270-271 ;  rules  arising 
from  their  commercial  character,  271- 
273 ;    influence   on   the   common    law, 

^  273-275. 

BoT,  311,  312. 

Botes  and  Estovers,  123. 

Bracton,  3,  4,  10,  14,  21,  23,  24,  50,  51, 
52,  53,  60,  66,  75,  78,  80,  85,  89,  90,  97, 
98,  103,  106,  III,  112,  126,  140,  141, 
I44»  154,  156,  157,  161,  163,  166,  173, 
174.  175.  176,  180,  184,  189,  190,  192, 
214,  225,  239,  265,  283,  295,  304,  309, 
31I1  315,  319.  320,  322,  339,  340,  341, 
342,  343.  348,  360,  361,  362,  363,  369, 
370.  371.  382,  395.  396,  401,  406,  408, 
410,  415,  416,  418,  463,  465,  466,  470, 
471,  476,  479,  491.  494.  496,  499.  5i4, 
535.  543.  550,  551.  573.  577,  579.  606, 
627,  629,  630,  631,  632. 

Bravafor,  610. 

Brian,  C.J.,  98,  209,  344,  345,  346,  364, 
366,  375,  381,  430,  485,  486,  488,  600. 

Bridgman,  C.J.,  559. 

Brissaud,  522,  524. 

Britton,  50,  53,  83,  84,  97, 106, 127,  129, 
174,  177,  184,  186,  304,  323,  339,  341, 
369,  401,  491. 

Broke,  J.,  486. 

Brothers  and  Sisters,  share  chattels 
with  mother,  562 ;  come  before  grand- 
parents, 562. 

Brown,  644. 

Brudenel,  C.J.,  486. 

Bryn,  433. 

Burgage,  53-54. 

Burglary,  369. 

Byelaws,  forfeitures  under,  425. 


Cam,  Miss,  402. 

Canon  Law,   412,  413,  564,  576 ;  as  to 

theory  of  corporations,  475,  476-7,  483  ; 

criminal  procedure  of  the,  621. 
Canute,  laws  of,  304. 
Caracalla,  507. 
Carriers,  breaking   bulk,   366;    liability 

of,  285-286,  448. 


Case,  actions  on  the,  see  Actions,  Tres- 
pass, Deceit. 

Castle  Guard,  37. 

Casus  Regis,  the,  175. 

Catlin,  C.J.,  443. 

Causa,  412,  413. 

Cause,  412,  413. 

Cavendish,  John,  409. 

Censive,  the,  220. 

Censuarii,  202. 

Challenges  of  Jurors,  613. 

Challis,  81,  133. 

Champerty,  395-399. 

Chance  Medley,  311,  314. 

Chancellor,  applications  to,  in  cases  of 
administration  of  assets,  582-583. 

Chancery,  the,  208,  209,  210,  211,  226, 
274.  317.  505.  530 ;  jurisdiction  in  cases 
of  administration  of  assets,  561,  594- 
595 ;  in  cases  of  contract,  424,  434, 
436,  437.  438.  439.  442.  447.  453  ;  over 
interpretation  of  wills,  541 ;  over  uses 
and  trusts,  426,  427  ;  written  pleadings 
in,  650;  application  to,  for  subpoena  to 
witnesses,  649. 

Chantries,  545-546. 

Characteristics  of  the  Mediaeval 
Common  Law,  656-658. 

Charters,  writ  forms  of,  226. 

Chattels,  of  felons,  329-330,  331,  332, 
353.  605;  of  the  wife,  526-527;  suc- 
cession to,  general  features  of  the  law, 
534-535;  succession  to,  in  Kent,  261; 
of  villeins,  495 ;  see  Possession  and 
Ownership. 

Chattels  Real,  34,  215;  influence  on 
the  law  as  to  freeholds,  217. 

Chaucer,  496. 

Cheating,  362. 

Chevagium,  494,  505. 

Children,  crimes  committed  by,  372-373 ; 
rights  to  father's  chattels  in  early  law, 
550,  551-552,  555-556;  rights  under 
Statute  of  Distribution,  561  ;  represent 
deceased  parent,  562. 

Chirographer,  the,  238. 

Chirographs,  227. 

Choke,  J.,  155,  346,  357,  366,  380,  387, 
485,  572,  646,  647. 

Choses  in  action,  92,  353,  368,  527 ;  the 
wife's,  544. 

Churches,  property  of,  471 ;  treated  as 
minors,  471-472. 

Churchwardens,  478. 

Civil  and  Canon  Law,  632. 

Civil  Liability,  contrasted  with  criminal, 
374.  375;  liability  for  acts,  375-377; 
defences  possible,  377-379 ;  only  for 
proximate  consequences,  379-380 ;  con- 
venience amounting  to  necessity,  380- 
382 ;  for  acts  of  servants,  382-387 ; 
constitutional  importance  of  these 
principles,  387-388. 


682 


INDEX 


Clarendon,  constitutions  of,  25,  415. 

Clench,  J.,  343. 

Clergy,  benefit  of,  290,  293-302  ;  origins, 
294-295;  thirteenth  century,  295-297; 
how  cUimed,  295-296 ;  treatment  of 
criminals  by  the  church,  296 ;  who 
could  claim,  296-297;  fourteenth  and 
fifteenth  centuries,  297-299;  extension 
of,  297 ;  control  by  royal  courts,  297- 
298 ;  procedure,  298-299 ;  offences  ex- 
cluded from,  299 ;  later  history,  299-302  ; 
distinction  between  those  in  orders  and 
those  not,  299-300 ;  who  could  claim, 
300 ;  consequences  of,  300-301 ;  ex 
elusion  of  offences,  301 ;  complexity  of 
the  law,  301-302 ;  abolition,  302. 

Co-ADjuRORS,  see  Supervisors. 

Codicils,  537,  538. 

Coercion  by  Husband,  373. 

CoGNizoR  or  Conusor,  237. 

Coke,  28,  85,  96,  99,  100,  119,  123,  125, 
128,  148,  158,  162,  201,  208,  209,  213, 
230,  238,  240,  242,  243,  244,  245,  247, 
327.  346.  364.  369,  370,  390,  396,  398, 
399,  400,  409,  445,  446,  461,  487,  509, 
510,  518,  526,  553,  575,  576,  601,  602, 
604,  619,  626,  641,  657,  658. 

Collaterals,  inheritance  of,  177-183. 

Colour,  639. 

comberford,  645,  646. 

commodatum,  4i4. 

Common  Recoveries,  118-120. 

Common,  tenants  in,  233 ;  action  of  ac- 
coimt  for,  427. 

Common  Rights,  143-151 ;  classification, 
143-144 ;  historical  origin,  144-145 ; 
approvement,  146-147 ;  growth  of  dis- 
tinction between  different  kinds  of,  147- 
157 ;  growing  infrequency  of  common 
of  shack  and  pur  cause  de  vicinage,  150  ; 
copyholders'  rights  of,  211-212. 

Commune  Concilium,  44,  45. 

Communities,  power  to  prescribe,  169, 
I 70-1 71. 

Community,  system  of,  as  between  hus- 
band and  wife,  522 ;  why  rejected  by 
the  common  law,  524  ;  contrast  between 
French  and  English  law,  525. 

Compulsion,  effect  on  criminal  liability, 
372. 

Compurgation,  296,  301,  443,  451,  578. 

Conditional  Fees,  112. 

Conditional  Gifts,  see  Fee  Simple 
Conditional. 

Confession  and  Avoidance,  629. 

Confirmation,  the,  232-233. 

Consideration,  413,  419-420,  452,  453  ; 
in  actions  against  negligent  bailees, 
449-450. 

Conspiracy,  400,  401-407 ;  origins,  401- 
402  ;  Edward  I.'s  statutes,  402-404 ; 
development  of  the  writ  of,  404-405  ;  of 
action  on  the  case  for,  405-407. 


Conspiracy  to  levy  war,  288,  291. 

Conspirators,  ordinance  of,  397 ;  statute 
of,  397- 

Constables,  599,  600,  601,  603,  604. 

Constitutional  Law,  influence  on,  of 
rules  of  civil  liability,  387-388. 

Constitutions  of  Clarendon,  25,  415. 

Constructive  Treason,  292-293. 

Contempts,  of  the  king,  389,  391 ;  of 
court,  391-394 ;  disobedience  to  its 
process,  391-392  ;  irregularities  of  its 
officers,  392 ;  contempts  in  presence  of 
court,  392 ;  other  contempts  not 
summarily  punished,  392-393  ;  enlarg- 
ment  of  summary  process,  393-394. 

Contingent,  debts,  590;  remainders, 
104,  108. 

Contract,  age  of  Glanvil  and  Bracton, 
414,  417 ;  thirteenth,  fourteenth,  and 
fifteenth  centuries,  417-424 ;  fifteenth, 
sixteenth,  and  seventeenth  centuries, 
assumpsit,  misfeasance,  429-434  ;  non- 
feasance, 434-441 ;  absorption  of  sphere 
of  debt,  441-444  ;  enforcement  of  execut- 
ory contracts,  444-446  ;  of  implied  con- 
tracts, 446-450  ;  assumpsit  a  contractual 
action,  451-452 ;  could  still  be  used  in 
tort,  452-453  ;  see  Assumpsit ;  reasons 
for  common  law  theory  of,  453-454  ;  its 
sphere  tends  to  expand,  454  ;  implied, 
425  ;  implied  in  law,  see  Quasi-contract ; 
capacity,  of  an  abbot,  473  ;  of  a  corpora- 
tion, 473,  485-486,  489  ;  of  an  infant, 
518-519;  of  a  married  woman,  528-530. 

Contract  and  Tort,  relations  between, 
428-429. 

contrectatio,  361. 

Contributory  Negligence,  378-379, 
382. 

Conveyances,  forms  of,  219-249 ;  free- 
hold interests,  220-246 ;  feoffments, 
221-225 ;  documents  evidencing,  225- 
232,  see  Deeds ;  releases,  232 ;  sur- 
renders, 232  ;  confirmations,  232-233  ; 
exchanges,  233  ;  partitions,  233  ;  deeds 
of  grant,  233-234  ;  conveyances  depend- 
ing on  the  machinery  of  the  court,  234- 
246 ;  fines,  236-245,  see  Fine  s ; 
recoveries,  246 ;  copyhold  interests,^ 
246-248  ;  leases  for  years,  248-249. 

Conveyancers,  influence  on  the  law  of, 
218-219. 

Conveyances,  results  effected  by 
mediaeval,  249-252. 

Conveyancing,  control  by  courts  of,  253- 
254 ;  illustrates  development  of  mediaeval 
law,  254-256. 

Co-owNERSHiP,  126-128. 

co-parcenary,  i26-i28,  174-i75,  233. 

Copley,  645,  646. 

Copyhold,  27,  30,  33-34,  81,  201,  206, 
208,  209,  209-213,  258,  267,  268 ;  con- 
veyances of,  246-248. 


INDEX 


688 


CORODIBS,  28,  99,  152-153. 

Coroner,  601 ;  indictment  on  finding  of 
jury  ol,  611. 

Corporation,  for  a  limited  purpose,  477 ; 
aggregate,  479-480 ;  sole,  480-482  ;  dis- 
tinct from  its  members,  483-484 ; 
members'  property  not  liable  for  its 
debts,  484 ;  nature  of  its  personality, 
484-485 ;  effect  of  duress  to  members 
of,  485-486 ;  affected  by  incidents  in 
life  of  its  head,  486-487 ;  powers  im- 
possible to  it,  484-485,  487 ;  powers 
incident  to  it,  488  ;  liability  for  tort, 
488 ;  capacity  to  own  property,  488- 
489  ;  contractual  capacity,  489  ;  modes 
of  dissolution,  489-490  ;  fate  of  its  pro- 
perty, 490  ;  see  Incorporate  Person. 

Corporations  and  Trusts,  479. 

Corps,  a,  474-475,  476. 

Corruption  of  Blood,  doctrine  of,  69, 
70. 

COTESMORE,  J.,  342,  432,  433. 
COTTARII,  200. 

Cotton,  L.J.,  149. 

Council,  the,  208,  211,  390,  505,  608; 
jurisdiction  in  cases  of  contempt,  393, 
401  ;  written  pleadings  in  its  procedure, 
650. 

Counsel,  responsible  for  the  truth  of  their 
allegations,  638,  646,  647,  648. 

Count,  the,  629. 

Courts,  used  to  authenticate  conveyances, 
235-236  ;  see  Fines,  Recoveries  ;  seisin 
by  order  of,  236,  241. 

Covenant,  action  of,  417-420,  578. 

Covenants,  annexed  to  land,  29,  102, 
157-166  ;  how  they  differ  from  ease- 
ments, 157-158  ;  run  with  the  estate  in 
the  land,  157  ;  how  far  do  they  run  with 
the  land  on  a  conveyance  in  fee  simple, 
159-165 ;  how  far  with  the  reversion, 
165  ;  for  title,  159,  163  ;  in  deeds,  229. 

Criminal  Law,  general  features  of,  276- 
277 ;  relation  of  villeins  to,  494. 

Criminal  Liability,  general  principles 
of»  372-375  ;  of  wife,  530-531- 

Croke,  657. 

Crown,  the,  no  prescription  against,  169, 
170  ;  priority  of  debts  due  to,  587. 

Cruise,  518. 

Curtesy,  92,  185-189. 

CusTODiA,  of  the  bailee,  339-340,  342. 

Custody  of  the  Law,  283. 

Custom,  how  it  differs  from  prescription, 
167-168. 

Customary  Rights,  in  nature  of  ease- 
ments, 170. 


D 


Damage,  liability  for  acts  causing,  378 ; 
permitted  by  law,  377 ;  caused  in  pro- 
tection of  property,  378. 


Damaob  Feasant,  distraint,  281. 

Damages,  measure  ol,  in  assumpsit,  452. 

Damnum,  cum  and  sine  injuria,  408. 

Danby,  C.J.,  208,  570. 

De  Bonis  Propriis,  judgment,  590. 

De  Bonis  Testatoris,  judgment,  589, 
590. 

De  Donis,  statute,  17-18,  68,  114,  187 ; 
interpretation  of,  114-116;  petitions  for 
repeal  of,  116-117  ;  evasion  of,  117-118 ; 
recoveries,  118-120;  fines,  117,  120. 

De  Viris  Religiosis,  statute,  87. 

Death,  gives  rise  to  no  civil  action,  333- 
336. 

Death  of  the  King,  463-464. 

Debt,  action  of,  348-349.  355-357.  357* 
358,  578,  584;  nature  of,  420-421; 
adapted  to  contract,  421-423 ;  incon- 
veniences of,  423-424 ;  variety  of  pur- 
poses for  which  used,  425 ;  used  to 
enforce  quasi-contracts,  425-426,  428; 
to  enforce  executory  contract  of  sale, 
423,  446  ;  absorbed  by  assumpsit,  442- 
444 ;  see  Detinue. 

Debt,  creation  of  a,  414  ;  due  by  executor 
to  deceased,  589. 

Debts,  order  of  payment  by  representative, 
586-587. 

Deceit,  bill  of,  394 ;  writ  of,  401 ;  char- 
acter of  wrong  in  early  law,  407 ;  not 
as  yet  fixed,  408 ;  extension  in  connec- 
tion with  sales  of  goods,  407-408;  on 
the  case,  386 ;  deceit  and  trespass  on 
the  case,  407-408 ;  deceit  on  the  case 
for  breach  of  warranty,  430-431. 

Declaration,  the,  629. 

Dedditicii,  456. 

Deeds,  source  of  forms  of,  226-227; 
deeds  poll,  227  ;  indentures,  227  ;  chiro- 
graphs, 227 ;  recitals,  227-228  ;  descrip- 
tion of  property  granted,  228;  habendum, 
tenendum,  and  reddendum,  228-229; 
clause  of  warranty,  229-230 ;  date  and 
other  ceremonies,  230-231 ;  contracts 
made  by,  417-420  ;  creation  or  transfer 
of  incorporeal  things  by,  98-99  ;  pass 
property  in  chattels,  357-358;  double 
aspect  of,  358 ;  wills  in  form  of,  538. 

Defamation,  390,  409-411. 

Defects  of  Medieval  Criminal  Law, 
317-318. 

Defence,  the  formal,  631. 

Delivery  of  Possession,  needed  for 
conveyance  of  chattels,  354 ;  exceptions 
—sale,  354-357 ;  deeds,  357-358. . 

Demi-mark,  tender  of,  6. 

Demurrer,  criminal  cases,  614-615 ; 
civil  cases,  629 ;  to  evidence,  639 ;  of 
the  parole,  513-516;  in  Bracton,  514- 
515;  older  application  of,  515-516;  how 
modified  later,  516. 

Deodands,  70,  311. 

Departure  in  Pleading,  634. 


684 


INDEX 


Depositum,  414. 

Descent  Cast,  ii,  93. 

Despencers,  the,  290. 

Determinable  Fees,  105. 

Detinue,  action  of,   322,  348-349,  355- 

357.  357-358,  584 ;  sur  trover,  324-328 ; 

on  a  devenerunt  ad  manus,  326-327, 349 ; 

sur  bailment,  324-325,  327  ;  relation  to 

action   of  debt,   420;  used   to   enforce 

quasi-contracts,    425-426 ;   survivorship 

of,  579-580. 
Devastavit,  587. 
Devise,  power  to,  75-76,  104 ;  custom  to, 

in  boroughs,    271,  273-274;  limitations 

possible  in  a,  136. 

DiALOGUS  DE  SCACCARIO,  6o,  49I. 
DiFFIDATIO,  461. 

Discontinuance,  ii,  93. 

Dispossessed  Owner  of  Chattels, 
position  of,  353. 

Disseisin,  91,  92,  93,  95. 

Distraint,  15,  16,  17,  281 ;  damage 
feasant,  281 ;  landlord's  right,  281-283. 

Divine  Service,  tenure  by,  36. 

Doctor  and  Student,  the,  188,  440, 
441.  507. 

Doderidge,  J.,  333,  578. 

Domesday  Book,  34, 40,  46,  51,  128,  198, 
202,  262,  264. 

Dominium,  89,  90,  91,  94,  95 ;  ex  jure 
Quritium,  4. 

Dos,  521,  543. 

Double  Capacity  of  King,  466-468. 

Dower,  20-22,  92, 189-197,  523  ;  remedies 
for,  20-22;  the  five  varieties,  189;  cre- 
ated by  the  parties,  189-191 ;  by  law, 
191-195  ;  bars  to,  195-197. 

Duplicity  in  Pleading,  633,  634. 

Duress,  to  members  of  a  corporation, 

485. 
Durham,    testamentary   jurisdiction    in, 

554. 
Dyer,  C.J.,  570,  657. 


Easements,  153-157 ;  number  restricted 
164. 

Ecclesiastical  Courts,  jurisdiction  of 
— over  administration  of  estates,  583, 
591-594 ;  crippled  by  common  law 
courts,  594 ;  superseded  by  Chancery, 
594-595 ;  over  contract,  413,  415,  416, 
424  ;  over  defamation,  410-411 ;  when 
wife  is  deserted,  530 ;  over  land  held  in 
frankalmoin,  35 ;  testamentary,  536,  550, 
551.  554-555;  weakness  of,  557*559; 
ineffective  criminal  procedure  of,  296. 

Edward  I.,  60. 

Edward  II.,  45,  462. 

Edward  III.,  45,  288. 

Ejectment,  action  of,  209,  214,  216-217, 
267. 


Elegit,  tenancy  by,  131,  132,  216. 
Elemosinam,  34 ;  see  Frankalmoin. 
Ellenborough,  C.J.,  286,  333,  334,  335, 

336- 

Elphinstone,  118,  119. 

Embezzlement,  365. 

Emblements,  125, 

Embracery,  399-400. 

Employers'  Liability,  modem  doctrine 
of,  387,  388. 

Emptio  Venditio,  414. 

Enclosure,  210,  211. 

English  and  Continental  Idea  of  a 
Criminal  Trial,  622. 

Enrichment,  unjust,  of  estate  of  a  de- 
ceased, 579-582. 

Entireties,  tenancy  by,  526. 

Entries,  books  of,  641. 

Equity,  extends  widow's  remedies  for 
dower,  21-22. 

Equity  of  Redemption,  129-130. 

Escape,  395. 

Escheat,  116,  133,  185,  195,  260,  272, 
291,  305,  605;  definition  of,  67;  dis- 
tinct from  reversion,  68 ;  propter  de- 
fectum sanguinis,  68 ;  propter  delictum 
tenentis,  56,  68-70;  of  equitable  estates, 
71-72  ;  in  boroughs,  476. 

Escheator,  the,  61. 

Escuage,  37. 

Essoins,  624. 

Estates,  conception  of  the,  96,  loi ;  not 
applied  to  chattels,  352 ;  power  to 
create  in  early  law,  102-105;  in  pos- 
session, 105-132 ;  in  fee  simple,  105- 
III ;  fee  simple  conditional,  17,  iii- 
114,  192;  fee  tail,  17-18,  114-120;  for 
life,  19,  120-123;  pur  autre  vie,  123- 
125;  at  will,  125;  at  suffrance,  125; 
in  co-ownership,  19,  126-128 ;  see  Joint 
Tenancy,  Tenancy  in  Common,  Co-par- 
cenary; created  to  secure  money  lent, 
128-130,  see  Mortgage,  Elegit,  Statute 
Merchant,  Statute  Staple;  in  expect- 
ancy, 132-133;  in  reversion,  133;  see 
Reversion ;  in  remainder,  134-137,  see 
Remainder ;  for  years,  19,  27,  34,  213- 
217. 

Ethelred,  laws  of,  304. 

Evidence  Oral,  pleaded,  635,  638-639; 
growth  of  distinction  between  the  plea 
and  evidence  for  it,  650. 

Exaction,  of  a  person  indicted,  604. 

Exceptions,  9,  627,  630 ;  order  of,  631. 

Exchange,  233. 

Excommunicate,  the,  458. 

Executed  Fine,  238. 

Executors,  usual  part  of  a  will,  536-537 ; 
identified  with  Roman  heres,  537;  but 
will  valid  without,  537 ;  powers  given 
by  testators  to,  547-548,  549;  why  so 
important  a  part  of  a  will,  548 ;  frauds 
committed     by,    556-557;    origins    of. 


INDEX 


685 


563-566;  special  executors,  56S-566; 
joint  executors,  566-585  ;  devolution  of 
office,  565 ;  vesting  of  property  in,  566; 
duties — heir  and  executor,  572-574 ;  heir 
ceases  to  represent  deceased,  574-576 ; 
liabilities,  576-583  ;  rights  to  deceased's 
property,  583-585 ;  their  position  at 
common  law,  585-591 ;  in  the  ecclesias- 
tical courts,  591-594 ;  later  develop- 
ments by  Chancery,  594-595. 

Executor  Dativus,  566,  569. 

Executor  de  son  Tort,  557,  571-572. 

Executor  Leqitimus,  566,  569. 

Executory,  contracts,  419,  420,423,  474, 
434.  435.  437.  439.  441-442.  444-446; 
devises,  136,  274 ;  fines,  238. 

Exigent,  the,  605. 

Express  Assumpsit,  see  Special  Assump- 
sit. 

Extent,  the  manorial,  200,  201,  and 
App.  II. 

Eyre,  the,  6,  389,  390,  402,  472,  598; 
articles  of  the,  83,  396,  401. 


Fairfax,  J.,  323,  373,  486. 

False  Imprisonment,  599,  600. 

False  Pretences,  362-363. 

Farm  System,  the,  198. 

Father,  right  to  succeed  to  children,  562. 

Fealty,  54-57. 

Fearne,  109,  134. 

Fee  Farm,  52. 

Fee  Simple,  see  Estates. 

Fee  Simple  Conditional,  see  Estates. 

Felony,  old  meaning  of,  55-56 ;  how  it 
differs  from  treason,  289-290 ;  con- 
spiracy to  indict  or  appeal  of,  404 ;  re- 
lation to  law  ot  escheat,  56,  69;  tort 
amounting  to,  331-333- 

FERiE  Nature,  animals,  368. 

Festuca,  416. 

Feudal,  bond  breach  of,  288 ;  ideas  re- 
straining alienation,  76-78. 

Filazer,  646. 

FiNALis  Concordia,  see  Fines  (convey- 
ance). 

Fines  (payment),  on  admittance  to  copy- 
hold, 247 ;  for  alienation,  84 ;  made 
with  king,  391. 

Fines  (conveyance),  *•  levying  "  of,  223; 
essential  parts  of,  236-238 ;  feet  of,  236, 
238  ;  varieties  of,  238-239 ;  why  so  im- 
portant, 239-240;  limitation,  240-244; 
of  estates  tail,  120,  244 ;  guarantee 
against  forgery,  245;  easy  to  get 
seisin  by,  245  ;  married  woman's 
conveyance,  193,  195-196,  245,  523, 
526;  used  for  family  settlements,  245, 
251,  252 ;  control  by  court  of  disposi- 
tions in,  252-253. 


Fineux,   C.J.,   451,  477.   529.  544.  577» 

578,  588,  601. 
Fire,  liability  for  damage  caused  by,  385. 
Fitzhekbert,  II,  268,  399,  406,  451,  503, 

528. 
Fleta,  83,  125,  184,  215,  304,  491,  577. 
Food,  liability  for  sale  of  bad,  386. 
Forcible  Entry,  statutes  of,  27,  280. 
Forest  Charter,  the,  464. 
Forfeiture,    of    freeholds,    70-71,    116, 

195,  272;  of  equitable   estates,  71-72; 

of  chattels,  280,  305. 
Forgery,  400,  difficult  in  case  of  a  fine, 

245  ;  when  treason,  289. 
Forisfamiliation,  271. 
Forma  Doni,  the,  103. 
Formula,  the,  656. 
FoRTEscuE,  C.J.,  590,  613,  620,  622,  623, 

626. 
FouRCHiNG  IN  Essoins,  624,  625. 
Fox,  392. 

Franc  Alleu,  30,  220. 
Franchises,   claims  of  corporations   to, 

476 ;  prescriptive  title  to,  169. 
Francis  I.,  307. 
Frankalmoin,   tenure  in,   25-26,    34-37, 

490. 
Frankpledge,  598. 
Fraud,  in  breach  of  an  undertaking,  431- 

432. 
Fraudulent  Debtors,  right  to  sanctuary, 

305-306. 
Free  Labourer,  the,  501. 
Free  Tenures,  the,  34-54;  seeJFrankal- 

moin,       Knight      Service,      Serjeanty, 

Socage, ;  incidents   of  the,    54-73 ;  see 

Homage,  Fealty,  Relief,  Primer  Seisin, 

Wardship  and  Marriage,  Aids,  Escheat, 

Forfeiture. 
Free  Bench,  186. 
Freehold,   no   limitation  of,   in  futuro, 

224. 
French   Law,  30,  58,   62,   66,  77,  222, 

412,  413,  514,  516,  632. 
French  Revolution,  211. 
Friskeney,  636. 
Frowyck,  C.J.,  439. 
Fryd,  the,  40. 


G 


Gaius,  4. 

Gascoigne,  C.J.,  285,  433. 

Gavelkind,  257,  259-263  ;  custom  as  to 

age  of  majority,  510  ;  see  Kent,  custom 

of. 
Gavelmanni,  202. 
Gaveston,  290,  304. 
Gawdy,  J.,  343. 
General  Issue,  631 ;  when  it  must  be 

pleaded,  638. 
Gersumarii,  200. 
Gierke,  470. 


686 


INDEX 


Glanvil,  4,  12,  46,  52,  59,  60,  63,  65,  66, 
69.  73.  74. 76,  77. 128, 129, 173, 174, 175, 
176,  180,  189,  190,  192,  193,  239,  270, 
271,  283,  289,  314.  3^9,  329,  538,  339. 
346,  395.  414.  415,  416,  491.  535.  536. 
550,  551.  563.  573. 

GODRED,  136. 
GOFFIN,  564. 
GOUDY,  576. 

Gradual  Scheme  of  Succession,  177- 
178. 

Grand  parents,  rights  of  succession,  562. 

Gray,  490. 

Grene,  326. 

Gros,  a,  475. 

Gross,  Rights  in,  142  ;  advowsons,  142  ; 
rights  of  common,  147,  149,  151 ;  ease- 
ments in,  154,  156-157. 

Groups,  the  various  mediaeval,  469  ;  those 
which  became  corporations,  469-470; 
ecclesiastical,  471-474 ;  application  to, 
of  the  use  concept,  478 ;  cannot  own 
property,  478. 

Guardianship,  511-513,  516,  517,  518, 
520;  varieties  of,  511-512 ;  in  the 
boroughs,  512;  ad  litem,  512,519;  the 
older  and  the  new  conception  of,  512- 
513,  520 ;  in  Kent,  261 ;  see  Wardship 
and  Marriage. 


H 


Habendum,  228. 

Hale,  182,  291,  298,  301,  332,  333,  368, 

375.  598,  599.  602,  603,  605,  606,  608, 

609,  611,  613,  615,  619,  641,  642. 
Half    Blood,   succession   to    freeholds, 

183-184  ;  succession  to  chattels,  562. 
Hall,  Hubert,  41,  644. 
Hamsoken,  369. 

Hand-having  thief,  319-320,  607-608. 
Hankford,  C.J.,  577,  579. 
Hargrave,  109,  509. 
Harrison,  507. 
Haugh,  J.,  600. 
Heir,  the,  originally  a  representative  of 

the    deceased,    573 ;     ousted    by    the 

executor,  573-574,  574-575  ;  reason  for 

this,  575  ;   effect  on  his  position,   575- 

576. 
Heirs,  a  word  of  limitation,  75,  105-106. 
Heirs  of  the  Body,  gifts  to,  111-116;  a 

word  of  limitation,  116. 
Henry  I.,  8,  42  ;  laws  of,  55,  102,  270. 
Henry  I.'s  Charter,  39,  59,  62-63,  535. 
Henry  II.,  6,  8,  39. 
Henry   III.,   43,   175 ;    ordinance  as  to 

alienation  of  land,  83. 
Henry  VI.,  462. 
Heres,  the,  563,  565,  583. 
Heriot,  the,  57,  59,  200,  272. 
Herle,  97,  142,  173,  214,  476,  497,  526, 

633. 


Hill,  326. 

HOLBORNE,  388. 

Holmes,  177,  347,  379,  419. 

Holt,  C.J.,  164,  341,  345,  450,  507,  530. 

Homage,   54-56,  82,  83,  174,   176,  235; 

warranty  implied  from,  56,  i6o,  230. 
Homicide,  310-316  ;  voluntary  act  needed, 

315  ;  justifiable,  310-311,  312,  600,  604; 

per  infortuniam  and  se  defendendo,  312- 

314.  613. 

Hue  and  Cry,  599,  600,  603 ;  in  the 
custom  of  Kent,  261. 

Hundred,  598. 

Husband,  liability  on  wife's  post-nuptial 
contracts,  528-530 ;  on  her  ante-nuptial 
debts  and  torts,  531  ;  on  her  post- 
nuptial torts,  531-532  ;  rights  to  suc- 
ceed to  wife,  561  ;  rights  to  each  other's 
lands  in  Kent,  261  ;  see  Curtesy. 

Husband  AND  Wife,  see  Married  Woman, 
Dower. 

HusE  (or  Hussey),  323,  348,  363,  465. 


Imparlance,  636. 

Impeachment,  607,  610. 

Implied  Contracts,  427. 

Incidents  of  Tenure,  help  to  originate 
rule  in  Shelley^s  Case,  107-108,  109 ; 
see  Free  Tenures. 

Incorporate  Person,  the,  456,  458,  469- 
490  ;  groups  and  corporations,  469-470  ; 
idea  of,  comes  from  canon  law,  470 ; 
introduced  through  the  church,  471-475  ; 
creation  of,  475-479 ;  classification, 
479-482  ;  nature  of  its  personality,  482- 
487  ;  powers,  capacities,  and  liabiUties, 
487-489  ;  dissolution  of,  489-490. 

Incorporeal  Things,  137-157 ;  protec- 
tion of,  19,  20,  27,  28,  29,  99-101 ; 
seisin  of,  96-97  ;  transfer  and  creation 
of,  97  ;  lie  in  grant,  98-99. 

Indebitatus  Assumpsit,  428 ;  replaces 
debt,  444 ;  helps  towards  enforcement 
of  executory  contracts,  444-446;  ex- 
tension to  quasi-contract,  450-451. 

Indiction,  the,  230. 

Indictment,  relation  to  the  appeal,  311, 
329  ;  to  trespass,  329  ;  results  of  these 
relations,  329-336  ;  nature  of  procedure 
on  the,  615,  616;  certainty  required  in, 
617-618 ;  reasons  for  this,  6i8-6ig ; 
effects,  619-620. 

Infants,  457,  510-520;  age  of  majority, 
510-511  ;  guardianship,  511-513 ; 
capacity  of — demurrer  of  the  parol,  513- 
516;  proprietary,  516-518;  contractual, 
518-519  ;  representation  of,  in  litigation, 
513,   519-520 ;    testamentary  capacity, 

544-545- 
Information,  the  criminal,  607,  610  ;  for 
contempt,  394. 


INDEX 


687 


Inheritance,  171-185  ;  in  boroughs,  271. 

Injuria,  455. 

In-lawing,  605. 

Inn-keepers,  385-386 ;  liability  of,  448. 

Innocent  IV.,  470. 

Innocent  VIII.,  307. 

Inns  of  Court,  469 ;  exclusion  of 
attorneys,  654. 

Inquisitio  Post  Mortem,  61. 

Inquisitorial  Form  of  Criminal  Pro- 
cedure, 621,  622. 

Intent,  element  in  criminal  liability,  373- 
374  ;  treasonable,  punishable,  292-293  ; 
without  act,  liability  for,  373. 

Interesse  Termini,  249. 

Interregnum,  none  by  English  law,  464. 

Intestacy,  why  held  disgraceful,  535- 
536. 

Intestate  Succession,  the  older  scheme, 
550-554  ;  why  it  disappeared,  554-556  ; 
administrator  gets  the  property,  556- 
559  ;  statute  of  Distribution — history 
of  the  statute,  559-560 ;  its  objects, 
560 ;  permanent  effects  of,  561-562 ; 
periods  in  the  history  of  the  law,  562- 

563- 
Inventory,  representative  must  make  an, 

591  ;  specimen,  593-594. 
Issue,  settlement  by  the  parties  of,  627- 

628,  632. 


J 


Jeofail,  statutes  of,  650. 

Jews,  the,  status  of,  458  ;  form  of  mort- 
gage peculiar  to,  130-131. 

John,  8,  50,  175,  257. 

John  of  Norwich,  49. 

Joint  Tenancy,  126-128. 

Joint  Tenants,  232,  233. 

Jointure,  191,  196,  197. 

Jurors,  violence  to,  400  ;  undue  influence 
on,  400. 

Jury,  effect  on  rule  requiring  livery  of 
seisin,  224;  difference  between  it  and 
the  older  modes  of  proof,  613-615  ;  but 
treated  as  an  older  mode  of  proof,  616 ; 
effect  of,  on  common  law  system  of 
pleading,  628  ;  effect  on,  of  introduction 
of  written  pleadings,  653-654. 

Jus,  accrescendi,  126,  127,  195  ;  patron- 
atus,  138  ;  tertii,  7,  90,  337. 

Justices  of  the  Peace,  389,  390,  601, 
602;  summary  jurisdiction  of,  607,  610. 

Justifiable  Homicide,  310-311,  312, 
600,  604. 

Justinian,  4,  223,  340,  455,  630. 

JUYN,  J  ,  434. 


K 


Keble,  600. 
Kelyng,  C.J.,  560. 


Kent,  custom  of,  173,  186,  259-260;  the 
Kentish  custumal,  260-262  ;  why  it  sur- 
vived, 262-263. 

Kindred,  degrees  of,  561-562. 

King,  the,  458-469 ;  position  in  developed 
common  law,  458-459 ;  periods  m 
history  of,  459 ;  feudal  ideas,  460-463  ; 
national  ideas,  463-469  ;  regarded  as  a 
natural  man  only,  463  ;  consequences  of 
this,  463-466;  can  do  wrong,  464-465  ; 
but  can't  be  sued,  388,  465  ;  this  leads 
to  idea  that  he  can  do  no  wrong,  465- 
466 ;  has  as  yet  no  double  capacity, 
290,  466-467 ;  hints  of  this  doctrine, 
467-468 ;  permanent  influence  of  the 
mediaeval  ideas,  468-469  ;  a  franchise 
holder,  264  ;  application  to,  of  idea  of 
a  corporation  sole,  481-482  ;  the  guardian 
of  infants,  512. 

King's  Bench,  assumes  Star  Chamber 
jurisdiction  over  contempts,  393-394. 

Kingsmill,  J.,  377,  388,  589. 

Knight  Service,  37-46. 

Knyvet,  127. 


Labour  Services,  32,  52,  53,  198-202  ; 
commutation  of,  33,  201-206,  207,  212. 

Laicon,  646,  647. 

Land,  the  wife's,  freehold,  525-526 ; 
chattel  interests,  527. 

Langton,  Stephen,  461. 

Larceny,  360-368  ;  definition,  360-361  ; 
relation  to  theory  of  possession,  361- 
366 ;  value  of  property — petty  larceny, 
366-367 ;  things  not  the  subject  of, 
367-368;    appeals  of,   338,   339,    348, 

363- 

Latini  Juniani,  456. 

Law,  supremacy  of,  and  criminal  pro- 
cedure, 620 ;  effect  on,  of  introduction 
of  written  pleadings,  655-656. 

Leadam,  210,  509. 

Lease  for  Years,  213-217  ;  conveyances 
of,  248-249. 

Lee,  Sir  Henry,  507. 

Leet  Jurisdiction,  202,  281-282,  318. 

Legacies,  546-547.  573.  5^3.  585.  589. 
590  ;  of  books,  547. 

Legal  Memory,  8,  166. 

Legis  Actiones,  656. 

Leper,  the,  457. 

Lex  Kanti.«,  262,  263  ;  see  Kent,  custom 
of. 

Liability,  principles  of,  the  old,  371  ; 
criminal,  372-375  ;  civil,  375-388  ;  see 
Civil  Liability,  Criminal  Liability. 

Libel,  see  Defamation. 

LiBERTiNi,  455. 

Liberty,  personal,  subject  of  seisin,  494- 
495  ;  effects  of  this  on  villein  status, 
495  •  lawyers  leaning  in  favour  of,  496- 
497. 


688 


INDEX 


LiBERUM   MaRITAGIUM,  III,  II5. 

Licensee,  can  commit  larceny,  364-365. 
Liege  Lord,  the,  54. 
Life  Estate,  120,  123  ;  see  Estates. 
Limitation,  statutes  of,  8, 10,  92,  93,  94, 

166,  180,  508. 
LiNDLEY,  L.J.,  165. 
Litigation,    unscrupulous    conduct    of, 

395. 
Littleton,  4,  23,  36,  37,  44,  50,  51,  53, 

59,  85,  88,  98,  119,  124,  125,  126,  130, 

135,  136,  151,  154,  185,  186,  189,  190, 

191,  192,  195,  209,  232,  324,  327,  344, 

345,  346,  375,  376,  4«5,  486,  509.  57o, 

646,  647. 
Littleton,  Edward,  392. 
Livery  of  Seisin,  74,  92,  98,  221-225  ; 

symbolical  livery,   223 ;    English    law 

does  not  allow,  224. 
Local  Courts,  jurisdiction  of,  contract, 

423-424 ;  defamation,  410. 
Local     Government,    control     of,    by 

common  law,  389,  390. 
LocATio  Conductio,  414. 
London,  succession  to  chattels  in,  552 ; 

testamentary  jurisdiction  in,  554. 
Lord,  relation  to  copyhold  conveyances, 

247-248  ;  cannot  be  heir,  176-177. 
Lunatic,  the,  457. 
Lyndwood,  537,  539,  541,  543,  555,  572. 


M 


Madness,  372. 

Madox,  41,  221,  231,  233,  254. 

Magna  Carta,  6,  7,  13,  24,  44,  50,  52, 
53,  60,  63,  64,  66,  69,  70,  83,  87,  122, 
193,  194,  329,  464,  535,  553. 

Maine,  455,  640. 

Mainour,  the,  608. 

Mainpast,  383,  598. 

Maintenance,  395-399,  638,  649  ;  when 
lawful,  398  ;  ruralis  and  curialis,  398  ; 
general  and  special,  399 ;  relation  to 
embracery,  399-400. 

Maitland,  4,  6,  10,  12,  23,  45,  63,  66, 
75,  76,  78-79,  81,  82, 100, 104,  105,  106, 
III,  131,  133,  159,  175,  176,  186,  192, 
212,  214,  215,  221,  244,  246,  263,  264, 
268,  271,  288,  295,  308,  312,  314,  315, 
322,  331,  336,  341.  342,  408,  426,  427, 
457,  460,  463,  479,  480,  510,  512,  543, 
599,  605,  630. 

Majority,  age  of,  510;  canon  law,  511  ; 
criminal  and  delictual  capacity,  511  ; 
in  Kent,  261. 

Majus  Jus,  7,  180. 

Males,  preference  of,  in  law  of  inherit- 
ance, 172. 

Malice  Aforethought,  314,  315. 

Malicia  Pr/ecogitata,  314. 

Mancipium,  status  of,  455. 

Manifest  Theft,  366-367. 


Manor,  the,  32,  33,  146,  200,  201,  202, 
203,  207,  208,  211 ;  manor  and  kingdom, 
comparison  of,  460 ;  connection  of 
villein  with,  491-492. 

Mansfield,  C.J.,  72,  109,  no,  286,  508, 
581,  582. 

Manslaughter,  314,  315. 

Manumission  of  Villeins,  implied,  492- 
493,  494,  500,  501 ;  by  charter,  496. 

Manwood,  C.B.,  182,  443,  580. 

Maritagia,  74,  III,  112,  19'. 

Markham,  C.J.,  156,  645. 

Marriage,  canon  law  conception  of, 
521 ;  incident  of,  see  Wardship  and 
Marriage. 

Married  Woman,  the,  455,  457,  520-533  ; 
various  views  as  to  her  status,  520-522 ; 
uncertainty  in  thirteenth  century,  522- 
523 ;  reasons  for  common  law  view, 
524-525;  her  property,  525-527;  her 
contracts,  528-530  ;  her  crimes  and 
torts,  530-532  ;  rigidity  of  the  common 
law  rules,  532-533  ;  equitable  modifica- 
tions, 533  ;  testamentary  capacity,  542- 
544 ;  why  bound  by  a  fine,  245. 

Martial  Law,  388. 

Martin,  J.,  135,  136,  383,  384,  431,  433, 

434,  435. 
Masses,  545. 
Mayhem,  316-317. 
Mens  rea,  322,  373-374. 
Mercantile  Custom,  liability  for  acts  of 

servants,  387. 
Merchants,  the,  457,  458. 
Merchet,  31,  200. 
Mesne  Process,  606-607. 
Mesne  Tenure,  effect  of  Quia  Emptores, 

on,  81. 
Minority  of  the  King,  464. 
Minors,  see  Infant,    Majority,  Demurrer 

of  the  Parol. 
Mirror  of  Justices,  the,  340,  491. 
Misadventure,  312,  313,  315,  316,  372. 
Misdemeanours,  reason  lor  creation  of, 

318. 
Mise,  joinder  of  the,  629. 
Misfeasance,    in   breach  of  an    under- 
taking, 386-387. 
Misprision,  389  and  n.  i. 
Molmen,  202. 
Money,  counterfeiting,  289. 
Montfort,  Simon  de,  257. 
Monks,   458,   473 ;  liability  of  abbot  for 

torts  of,  473-474- 
Moral  Obligation,  412,  413. 
Mortgages,  128-131. 
Mortmain,  statutes  of,  36,  86-87. 
Mortuary  Fee,  545. 
Mother,   right  to  succeed  to  children, 

562. 
mountague,  c.j.,  92. 
Moyle  (or  Moile),  28,  156,  378,  647, 

648, 649. 


INDEX 


689 


Murder,  314-315,  602. 
Murdrum,  314-315. 
MUTUUM,  414. 

N 

Narratio,  the,  629. 

Nativus,  200. 

Natural  Rights,  relation  to  easements, 

155-156. 
Necessaries  (infants),  519. 
Nedham,  346. 
Negative  Pregnant,  634. 
Negligence,  no  idea  of,  in  mediaeval  law, 

375  ;  roots  of  a  doctrine  of,  379-382. 
Negro  Slaves,  recognition  of  property  in, 

507-508. 
Newton,  C.J.,  285,   430,  433,  437,  441, 

570,  577. 
Next  Friend,  519. 
Nicolas,  97. 

Nisi  Prius  Roll,  the,  652-653. 
Normal  Persons,  457. 
North,  C.J.,  560. 
North,  Roger,  211,  655. 
NoViE  Narrationes,  the,  321,  325,  642. 
Novel  Deisseisin,  see  Assize. 
Nov,  393. 

Nudum  Pactum,  412,  445. 
Nuisance,  assize  of,  see  Assize ;  law  of, 

relation  to  law  of  easements,  154-156. 
Nuncupative  Will,  537. 


Occupancy,  124-125. 

Old  Natura  Brevium,  119. 

Old  Tenures,  the,  53,  124. 

Operarii,  200. 

Oral  Pleading,  see  Procedure  and 
Pleading  in  civil  cases  and  in  criminal 
cases ;  in  criminal  cases — simplicity  of 
pleas,  615-616 ;  permission  to  plead 
over,  616;  in  civil  cases — latitude 
allowed  under,  635-637. 

Ordinary,  the,  566,  569,  573,  574,  592- 
593,  594 ;  legal  position  of  the,  567-568. 

Orphans,  court  of,  273  n.  2,  512,  556. 

Ouster  le  Main,  61,  64. 

Outlaw,  the,  458. 

Outlawry,  604-607;  connection  with 
abjuration,  303-304. 

Ownership  and  Possession,  88-90 ; 
Roman  and  English  law  contrasted, 
89-90 ;  separation  of  the  two  concepts, 
358-359. 


Paob,  206. 

Paper  Pleadings,  640,  643,  644,  646, 
647,  649,  653. 


Parage,  tenure  in,  173. 

Paraphernalia,  523,  527,  543,  544. 

Pardon,  plea  of,  614. 

Pardons  of  Course,  312-313. 

Parentelic  Scheme  of  Succession, 
177-178- 

Parliament,  statute  of  treason  to  be  inter- 
preted by,  291. 

Parning,  127. 

Parol,  demurrer  of  the,  see  Demurrer  of 
the  Parol. 

Parson,  a  corporation  sole,  480-481. 

Partibility,  rule  of,  173. 

Partition,  deeds  of,  233;  in  Kent,  261. 

Passeley,  636. 

Paston,  J.,  136,  422,  434. 

Pasture,  common  of,  see  Commons. 

Paterna  Paternis,  etc.,  179,  180,  184. 

Pays,  du  droit  ecrit,  220  ;  du  droit 
coutumier,  220. 

Pedes  Finium,  238. 

Peers,  the,  458. 

Penal  Obligation,  a,  577. 

Perjury,  400. 

Perkins,  556,  594. 

Permissive  Waste,  122-123. 

Perpetuities,  rule  against,  85,  86,  87, 
109,  164. 

Person,  offences  against  the,  310-318. 

Persona  Ficta,  470,  474,  475,  476,  480, 
489. 

Personal  Actions,  influence  on  law  of 
contract,  413-414,  415-416;  see  Actions. 

Personal  Liability,  of  the  representa- 
tive, 586. 

Perversion  of  Machinery  of  Justice, 
394-400;  see  Champerty,  Maintenance 
Embracery. 

Petty  Larceny,  366-367. 

Petty  Treason,  56,  288,  289,  291. 

Phillimore,  L.J.,  571. 

Pike,  475. 

Piscary,  common  of,  143. 

Pleading,  see  Procedure  and  Pleading. 

Pleas,  in  abatement,  614,  629 ;  in  bar, 
614,  629;  only  one  allowed,  631-632, 
633 ;  certainty  required  in,  633 ;  of 
clergy,  614 ;  to  jurisdiction,  614,  629 ; 
of  sanctuary,  614;  amendment  o',  631, 
635,  636-637,  643,  647-648 ;  see  Con- 
fession and  Avoidance,  Demurrer, 
Traverse. 

Pledge  of  Faith,  415,  416. 

Plenb  Administravit,  plea  of,  586,  587. 

Plowden,  183,  657. 

Pole,  421 ;  Michael  de  la,  409. 

Pollard,  649. 

Pollock,  Sir  F.,  469. 

Pope,   the,   power  to  create  corporation, 

475.  477. 
Possessio  Fratris,  etc.,  184. 
Possession  and  Ownership,  88-89. 
Possession  and  Seisin,  352. 


VOL.  III.— 44 


690 


INDEX 


Possession  and  Ownership  of 
Chattels,  evolution  of  the  law,  318- 
3iq ;  involuntary  loss  of,  319-336 ; 
voluntary  parting  with,  336-350,  see 
Bailees ;  origin  of  Trover,  350-351 ; 
mediaeval  theory  of,  351-360  ;  rights  of 
the  possessor,  352-353  ;  compared  with 
possession  of  land,  351-354,  359. 

Power  of  Appointment,  548. 

PRiEciPE  IN  Capite,  see  Writs  of  Right. 

Pre-emption,  right  of,  in  boroughs,  270. 

Preference,  doctrine  of,  587. 

Prerogative,  the,  329 ;  direct  and  in- 
cidental, 458-4S9,  461  ;  subject  to  law, 
459,  463  ;  definitions  of,  460  ;  controlled 
by  Parliament,  463  ;  see  King. 

Prerogative  Court,  the,  555,  556. 

Prerogativa  Regis,  the  so  called 
statute,  61,  83,  84,  460. 

Prescription,  166-171 ;  old  theory  of, 
167-169 ;  new  theory,  169-171 ;  corpora- 
tion by,  477  ;  creation  of  villein  status 
by,  499. 

Presentment,  of  a  coroner's  and  of  a 
grand  jury,  61  r. 

Primer  Seisin,  57,  61. 

Primogeniture.  75,  172-174. 

Principal  and  Accessory,  307-310;  why 
distinction  is  confined  to  felony,  308; 
its  growth,  309;  rule  that  principal 
must  first  be  convicted,  309-310. 

Prison  Breach,  395. 

Prisot,  C.J.,  298,  427,  441,  487,  646, 
647,  648,  649. 

privat.e  conventiones,  4i5,  416. 

Private  War,  394-395. 

Privity,  of  contract  and  estate,  162-163. 

Probate,  566,  567  ;  effect  of  a  grant  of, 
539,  540. 

Procedure  and  Pleading,  general 
features  of  the  law  of,  596-597.  In 
civil  cases :  origins  of  mediaeval  system, 
627-639 ;  peculiarities  of  the  English 
system,  627-629 ;  the  kinds  of  plens, 
629-630 ;  period  of  transition,  630-632 ; 
adaptation  to  jury  system,  633-634 ; 
influence  of  older  ideas,  634-635 ; 
manner  in  which  issue  was  reached, 
637-638;  evidence  then  pleaded,  638- 
639 ;  introduction  of  written  pleadings 
and  its  effects,  639-656 ;  large  effects  of 
the  change,  640;  the  change  gradual, 
640-641 ;  its  beginnings,  641-648 ; 
growth  of  formalism,  641-642  ;  change 
in  manner  of  recording  pleas,  642-645 ; 
change  disliked  by  the  judges,  645 ; 
prothonotaries  draw  pleas  for  personal 
litigants,  645-646  ;  early  discussion  of  a 
paper  pleading,  646-648  ;  later  develop- 
ments, 648-653;  introduction  of  wit- 
nesses, 648-650 ;  influence  of  other 
courts,  650 ;  pleading  is  specialized,  650- 
657 ;   prothonotaries'  clerks,  attorneys. 


and  special  pleaders,  651-653  ;  effects  of 
these  changes — on  legal  institutions, 
653-654 ;  on  law  reporting,  654-655  ; 
on  the  law,  655-656. 

In  criminal  cases  :  older  forms,  607- 
6og  ;  other  exceptional  forms,  609-611  ; 
indictment  and  trial  by  jury,  611  623; 
blending  of  new  and  old  procedure,  611  • 
613  ;  English  conception  of  a  trial,  613  ; 
differences  between  new  and  old  pro- 
cedure, 613-615  ;  resemblances,  615 
620 ;  peculiarities,  of  English  criminal 
procedure  and  their  effects,  620-623. 

Process — In  civil  cases :  complexity, 
623,  624,  625-626 ;  in  real  actions,  624- 
625  ;  in  personal  actions,  625  ;  accounts 
for  the  spread  of  trespass,  626-627  5 
strictness  of  rules  of,  635. 

In  criminal  cases :  arrest  of  those 
not  indicted,  598-604 ;  earliest  period, 
598-599  ;  to  sixteenth  century,  599-601 ; 
later  law,  601-604 ;  arrest  of  those 
indicted,  604 ;  measures  against  those 
who  seek  to  evade  arrest,  604-607. 

Process  to  Summon  Witnesses,  649. 

Profits  a  Prendre,  143,  154,  157,  170. 

Proof,  older  modes  of,  612. 

Property,  ascribed  to  thieves,  331 ;  of  a 
deceased  person,  representative's  right 
to,  583-584 ;  when  a  beneficial  right, 
584,  592. 

Proprietary  and  Governmental  Royal 
Rights,  confusion  between,  462-463. 

Protections,  624,  625. 

Protestation,  634. 

Prothonotaries,  the,  642,  644,  645-646, 
650;  their  clerks,  644,  645-646,  650- 
651,  652,  653. 

Public  Duties,  of  citizens,  388-389 ;  of 
villeins,  493. 

Public  Interest,  damage  lawfully  in- 
flicted in  the,  377. 

Pulteney,  590. 

Pur  Autre  Vie,  estate,  123-124. 

Pur  Cause  de  Vicinage,  common,  143, 
145,  147.  150. 


Quantum  Meruit,  action  on  a,  447,  448. 

Quasi-contracts,  416,  424-428,  450-451. 

Quasi-corporation,  477,  478. 

'Quia  Emptores,  the  statute,  36,  37,  45, 
65,  68,  80,  81,  84,  86,  104,  107,  133, 
149,  151,  160,  161,  165,  177,  228,  230. 

Quid  pro  quo,  421,  422,  423,  437,  438, 
440,  441,  443. 

Quo  Warranto  Enquiries,  the,  83. 


Raleigh,  William,  214. 
Rape,  316. 


INDEX 


691 


Real  Actions,  none  for  movables,  322  ; 
in  borough  courts,  273  ;  see  Actions. 

Real  Property,  definition  of,  4,  29  ;  why 
it  escaped  liability  to  debts  of  a  deceased 
person,  575-576  ;  limitation  Act,  22,  93, 

94. 
Realty  and  Personalty,  322,  328. 
Rebuttal,   use  of  warranty  as  a,  159, 

160. 
Rebutter,  629. 
Recapture,   of   goods,    279-280 ;    of   a 

villein,  494, 
Receiving  Stolen  Goods,  363. 
Recitals,  228. 
Record,  contract  of,  425. 
Recording  Pleas,  changes  in  mode  of, 

642-645. 
Recoveries,   193,   196,   233,   234,  246 ; 

used  by  infants   to  make  binding  dis- 
positions, 517-518. 
Recovery  of  a  Villein,  procedure  for, 

497-498. 
Reddendum,  the,  228-229. 
Rede,  J.,  374,  381,  384,  601. 
Re-entry,   rights    of    disseised    owner, 

280. 
Reeve,  obligation  to  serve  as  a,  201. 
Reeves,  637,  642,  643. 
Rejoinder,  629. 

Relation  Back,  doctrine  of,  569. 
Release,  the,  232. 
Relief,  57-61,  64,  106,  107,  200,  272. 
Remainders,  97,  100,  104 ;  derivation  of 

term,    132-133 ;    vested  or  contingent, 

134 ;    latter  not   valid,   134-135,   136 ; 

change  in  the  law,  135-136. 
Rents,  52,  53,  97,  99,  100,  151-153.  233, 

234  ;  Kentish  custom  as  to  land  seized 

for  non-payment  of,  261-262. 
Replevin,  action  of,  17,  27,  283-287 ;  re- 
lation to  trespass,  285  ;  to  trover,  285- 

287. 
Replication,  629. 
Reports,  the,  why  they  differ  from  the 

Y.BB.,  654-655. 
Representation,  of  a  deceased  person, 

563-595 ;  see  Executors,  Administrators  ; 

rule  of,  in  law  of  inheritance,  175. 
Representative,    removal    of,    by    the 

Ordinary,  592. 
Requests,  court  of,  210,  211 ;  action  in 

cases  of  villein  status,  504,  505. 
Res  Adirat^,  action  for,  320-322,  324, 

325.  326. 
Rescous,  395. 

Responsa  Prudentum,  219. 
Restitution,  directed  in  wills,  effect  of, 

on   maxim   actio   personalis,  etc.,  582- 

583.  584. 
Restrictions  on  Testation,  550-554. 
Retainer,  588-589. 
Retraits,   220 ;  feodal,   80 ;   lignagner, 

75. 


Reversion,  97,  100;  derivation  of  term, 
^^32-133 ;  how  it  differs  from  escheat, 
133. 

Rbville,  303. 

Revocation,  of  a  grant  of  administration^ 

569-571- 
Richard  I.,  8. 
Richard    II.,  45,   462 ;    treason    in  his 

reign,  291-292. 
Rickhill,  J.,  433  ;  his  settlement,  119, 

135. 
Robbery,  368 ;  appeal  of,  338,  339,  348, 

363. 
Rolf,  384. 

Roll  and  Record,  643. 
Rolle,  C.J.,  333. 
Roman  Law,  4,  5,  16,  34,  56,  62,  63,  77, 

89,  90,  gi,  95,  103,  154,  166,  213,  220, 

222,  223,  224,  248,  281,  338,  339-342. 

346,  347,  361,  363-364,  371.  412,  414. 

415.  455.  456,  479.  491,  516,  521,  537, 

541.  545.  576,  630. 
RoTURiER,  the,  30. 
Round,  — ,  38,  39. 

Royal  Charter,  needed  to  create  a  cor- 
poration, 475,  476,  477. 
Rules  of  Law  and  Construction,  no. 
Rules  of  the  Supreme  Court,  656. 
RusTici,  200. 


Saint  John  of  Beverley,  sanctuary  of, 

305. 

Saints,  as  property  ovmers,  471. 

Sale,  a  real  contract  in  Glanvil,  414  ;  by 
operation  of  law,  322. 

Sale  of  Goods,  contract  of,  423 ;  exe- 
cuted passes  the  property,  354-357,  436- 
437,  438  ;  not  if  executory,  357  ;  frauds 
in  connection  with,  407. 

Sale  of  Land,  does  not  pass  the  pro- 
perty, 357,  437,  438. 

Salman,  the,  563-565. 

Salmond,  Sir  J.,  167,  168,  421,  482. 

Sanctuary,  293-294,  303-307 ;  origins, 
303-304  ;  places  which  were,  304-305  ; 
persons  who  could  not  claim,  305-306 ; 
Henry  VIII. 's  legislation,  306;  later 
changes,  307  ;  abolition,  307. 

Sans  ceo  que,  634. 

Sarpi  Fra  Paolo,  300,  307. 

Savine,  505,  506. 

Scandalum  Magnetum,  409-410. 

Scienter,  381. 

Scrope,  26,  326. 

Scrutton,  143,  144. 

Scutage,  37,  40-45. 

Sb   defendsndo,   killing,    312,  313-314, 

315- 
Seal,    counterfeiting    the    kmg's,     289 ; 
needed    for    a   written   contract,    417 ; 


692 


INDEX 


when  evidence  only,  418 ;  when  the 
contract,  418-419  ;  view  that  it  imports 
consideration,  419-420  ;  use  of  in  con- 
veyances, 231  ;  use  of,  by  corporations, 

472-473.  489. 

Seignory,  97,  100,  233,  234 ;  alienation 
of  a,  81,  82. 

Seisin,  88-101  ;  the  term,  352  ;  of  free- 
dom, 494-495  ;  needed  for  curtsey,  188  ; 
in  relation  to  fines,  236,  240,  241-243  ; 
in  law,  188. 

Selden,  392. 

Self-defence,  278-279,  372,  377-378. 

Self-help,  278-287. 

Separate  Examination,  of  a  married 
woman,  245. 

Serjeanty,  46-51  ;  grand,  47,  48,  50,  51 ; 
petit,  48,  50,  51. 

Servant,  has  no  possession,  336 ;  can 
commit  larceny,  363-364  ;  narrow  con- 
struction of  this  rule,  365. 

Services,  seisin  of,  99. 

Services  of  Villein,  uncertainty  of,  31- 

32. 

Servientes,  46 ;  non-military  class,  47- 
48  ;  military  class,  49-50. 

Settlements,  family,  245,  250-252. 

Shack,  common  of,  144,  145,  150. 

Sharshulle,  J.,  157,  243,  421,  579. 

Shelley's  Case,  107-111,  134. 

Shepherd,  333,  335,  447. 

Sheriff,  liable  for  misdeeds  of  his  ser- 
vant, 387 ;  powers  of  arrest,  599,  6or, 
603,  604. 

Simple  Seisin,  60. 

SINIBALD  FlESCHI,  470. 

Six  Clerks,  the,  652. 

Skill,  liability  for  want  of,  385-386. 

Smith,  Sir  Th.,  507,  508,  509,  649. 

Smiths,  negligence  of,  385-386. 

Soc,  51. 

Socage,  51-54  ;  villein  and  free,  52. 

Soke,  51. 

Southcote,  J.,  443. 

Special  Assumpsit,  446,  448,  449-450. 

Special  Customs,  why  some  survived  in 

the  land  law,  257-259. 
Special  Pleaders,  651,  653. 
Specialty   Debts,    heir's    liability  for, 

574.  575-576. 

Spence,  447. 

Spigurnel,  J.,  252. 

Star  Chamber,  210,  211,  390 ;  jurisdic- 
tion over  contempts,  393,  394,  401,  407, 
411;  in  cases  of  copyhold,  211;  in 
cases  of  villein  status,  504 ;  written 
pleadings  in,  650. 

Status,  385-386 ;  status  and  contract, 
455-456;  in  mediaeval  law,  456-458. 

Statute  of  Distribution,  559-560 ;  of 
labourers,  204,  205,  500,  501 ;  of  uses, 
196-197;  of  Winchester,  493  ;  see  List 
of  Statutes. 


Statutes  Merchant  and  Staple,  131, 

132. 
Staunford,  J.,  330,  369,  460,  611. 
Staunton,  J.,  633,  634,  636. 
Stephen  (King),  39. 
Stephen,  J.,   301,  310,  364,   368,  468, 

620,  621. 
Stephen,  H.J.,  627,  628,  633,  635,  640. 
Stifling  Prosecutions,  330. 
Stipulatio,  416, 

Stonore,  C.J.,  115,  134,  242,  568. 
Stratford,  John  of,  542-543. 
Subinfeudation,  79. 
Substitution,    alienation    by    way    of, 

80. 
Successors,   word  used  in  grants  to  a 

corporation,  483. 
Suffrance,  tenancy  at,  125. 
Suicide,  315-316. 
Summons  and  Severance,  585. 
Supervisors  of  a  Will,  566. 
Suretyship,  verbal  contract  of,  416,  424  ; 

enforced  by  assumpsit,  440. 
Surgeons,  negligence  of,  385-386. 
Surrebutter,  630. 
Surrejoinder,  629. 
Surrender,  the,  232. 
Surrender  and  Admittance,  246. 
Suspicion,  arrest  on,  603. 
SwiNBURN,  537,  538,  566,  567. 
Symbolical,  livery  of  seisin,  223-224. 


Tail  Estate,  see  Estates,  De  Denis. 

Talbot,  508. 

Tallage,  31,  200. 

Tank,  J.,  181. 

Temporary  Insanity,  316. 

Tenancy  in  Common,  126-128;  by  en- 
tireties, 126,  128 ;  in  tail  after  possibil- 
ity, 116. 

Tenendum,  the,  228. 

Tenure,  distinction  between  free  and  un- 
free,   29-34  J  "^   ^^  corona  and  ut  de 
honore,  41  n.  2,  43,  65,  70,  84 ;  decline 
in   importance  of,   81;  not   applied  to, 
chattels,  352. 

Term  of  Years,  the,  213-217. 

Testamentum  and  Ultima  Voluntas, 

537. 
Thayer,  576,  638. 
Theft-bote,  330. 
Thief,  summary  procedure  when  caught 

in  the  act,  319-320. 
Thirning,  C.J.,  326,  346,  433,  577. 
Thorpe,  J.,  107,  604. 
Thurlow,  L.C,  109. 
Thwertutnay,  629,  631. 
Tirwit,  433. 
Tithing,  598,  599. 


INDEX 


698 


Tort,  general  features  of  law  of,  377-378 ; 
amounting  to  a  felony,  331-333;  rela- 
tions to  law  of  contract,  248-249 ;  to  law 
of  property,  328 ;  waiver  of,  450. 

ToRTiONS  Fkoffment,  qi,  93. 

TOUDEBY,  326. 

TouRN,  the,  318. 

TOWNSHEND,  99,  600. 

Trade,  power  to,  given  to  executors,  587- 
588. 

Trade  Union,  479. 

Traditio  Brevi  Manu,  354. 

Transportation  of  Criminals,  304. 

Traverse,  629. 

Treachery,  element  of,  in  treason,  287- 
288. 

Treason,  287-293  ;  earlier  ideas,  287-291, 
see  Petty  Treason;  in  fourteenth  and 
fifteenth  centuries,  291-292 ;  construc- 
tive treason,  292-293 ;  levying  war  not 
treason  till  1352,  461-462;  service  to  a 
de  facto  king  not  treason,  468  ;  forfeiture 
for,  70-71,  72  ;  conspiracy  to  indict  for, 

405. 

Tremaine,  J.,  601. 

Trespass,  action  of,  26,  27,  28,  29,  283, 
285,  584 ;  relation  to  detinue,  329 ;  to 
the  indictment,  329-336;  criminal  pro- 
ceedings for,  318;  criminal  and  civil 
aspect  of,  318;  finding  of  jury  in  action 
of  fovmdation  of  criminal  proceedings, 
610-^1 ;  to  the  person,  317 ;  de  bonis 
asportatis,  323-324,  328 ;  to  land  or 
goods,  370  ;  nature  of  liability  for,  382 ; 
on  the  case,  428-429,  386,  584 ;  con- 
spiracy to  indict  for,  405  ;  process  of 
outlawry  in,  616-617  ;  this  a  reason  for 
its  extension,  626. 

Trewit,  243. 

Trials,  old  and  new  conception  of,  611- 
613;  by  jury — effect  on  old  conception 
of,  612-613. 

Trover,  origins  of,  350-351 ;  how  it 
differed  from  detinue,  351  ;  used  as 
alternative  to  trespass,  450 ;  relation  to 
replevin,  285-287;  transmissibility  of, 
581-582,  584. 

Trussell,  Sir  W.,  462. 

Trust  Estates,  no  dower  from,  196. 

Trustee,  representative  treated  as  a,  592. 

Trusts  in  Wills,  584,  589. 

Turbary,  common  of,  143. 

Tutela,  516. 


U 


Unde  VI,  8. 

Unfree  Tenure,  198-213  ;  farm  system, 
198 ;  labour  service  system,  198-202 ; 
transition  to  system  of  money  rents, 
202-206;  effect  of  this  on  land  law, 
206-209 ;  settlement  of  copyholder's 
position,  209-213. 


Unjust  Enrichment,  remedy  for,  427. 

Use,  the,  relation  to  law  of  escheat  and 
forfeiture,  71 ;  no  dower  from,  196-197; 
effect  on  importance  of  seisin,  234 ; 
application  of  conception  of,  to  unin- 
corporate  groups,  478  ;  can  the  king  be 
seised  to  a,  467-468  ;  refusal  of  common 
law  to  recognize  uses  of  land,  4,  24; 
recognition  of  chancellor,  436 ;  chattels 
given  to  use  of — common  law  remedies, 
416,  426,  427. 

Uses,  statute  of,  71. 

usucapio,  94. 

Usury,  128,  215. 


Vadium,  mortuum  and  vivum,  128. 

Vaughan,  C.J.,  96. 

Vavisor,  99,  600. 

Venue,  633,  638,  654. 

Verdicts,  general  and  special,  613-614. 

Vetitum  Namii,  282-283. 

View,  the,  624. 

ViLL,  the,  598,  599. 

Village  Community,  the,  146. 

Villani,  199-200. 

Villein  Revolt,  the,  205. 

Villein  Socman,  265. 

Villein  Status,  32,  455,  457,491-510; 
equated  with  slaves,  491 ;  this  theory 
won't  fit  English  facts,  491-493  ;  con- 
flicts with  principles  of  English  law, 
493-496 ;  opposed  to  leaning  in  favour 
of  liberty,  496-499  ;  results  on  the 
status,  500  ;  effects  of  the  Black  Death, 
501 ;  why  the  status  survived,  502-506 ; 
sales  of  manumissions,  506-507 ;  its 
end,  507-508  ;  the  terms  regardant  and 
in  gross,  509-510. 

Villeinage,  plea  of,  496,  502  ;  tenure  in, 
see  Unfree  Tenure. 

Villeins,  rights  of  common  of,  146, 
150  ;  testamentary  capacity  of,  542,  544. 

Vindicatio,  89,  90,  91. 

Vinogradoff,  32,  48,  144,  198,  201,  202, 

495. 
Voluntary  Waste,  121-122,  125. 
Vouching  to  Warranty,  118,  159-160, 

161,  164,  624,  625. 


W 


Wager  of  Law,  296,  301,  423,  451,  578. 

Wales,  succession  in,  552 ;  separate 
courts  of,  554. 

Walker,  Dr.,  559. 

Walsh,  J.,  570. 

Wards  and  Liveries,  court  of,  65. 

Wardship  and  Marriage,  knight  ser- 
vice, 61-65  ;  socage,  65-66  ;  in  boroughs, 
272-273  ;  rights  regarded  as  chattels 
real,  215. 


694 


INDEX 


Warrants  of  Justices  of  the  Peace, 
6oi,  603. 

Warranty,  breach  of  (sales  of  goods), 
sued  for  by  writ  of  deceit,  408. 

Warranty,  duty  of  (land),  relation  to 
homage,  56 ;  attached  to  estates  in 
land,  158 ;  implied  or  express,  158-159, 
160 ;  how  enforced,  159 ;  benefit 
running  with  the  land,  161-162  ;  burden 
running  with  the  land,  163-165;  con- 
nection with  freedom  of  alienation,  105- 
106  ;  used  to  evade  De  Donis,  117-118; 
lineal  and  collateral,  117-118  ;  clause  of, 
in  a  deed,  229-230. 

Warranty,  vouching  to,  in  an  appeal  of 
larceny,  320. 

Waste,  121-123,  124,  125  ;  procedure  in 
boroughs,  272. 

Wed,  416. 

Wer,  311,  312. 

West,  537. 

Westcote,  472. 

Weston,  J.,  570. 

Weyland,  Thomas  of,  304  ;  his  settle 
ment,  104,  240. 

Whiddon,  J.,  443. 

Whitlock,  J.,  333. 

WiDSLEA,  644. 

Wife,  right  to  husband's  chattels,  550, 
551-552,  555  ;  under  statute  of  distribu- 
tion, 561 ;  see  Dower. 

Wigmore,  381. 

Will,  tenancy  at,  125. 

William  I.,  38,  56. 

William  II.,  58,  59,  62. 

Williams,  Joshua,  144,  148. 

WiLLOUGHBY,  J.,  579,  588. 

Wills,  why  usual,  535-536 ;  form  of, 
536-540  ;  revocation  of,  540  ;  interpreta- 
tion of,  540-541 ;  capacity  to  make, 
541-542  ;  villeins,  542  ;  married  women, 
523,  542-544.  555;  infants,  544-545: 
clauses  in  mediaeval  wills,  545-550; 
how  much  could   be  left  by,  551-552, 

552-553. 
WiLMOT,  J.,  394. 
WiNFiELD,  397,  398,  401,  403. 
WiTE,  the,  69,  311. 
Withernam,  284. 

Without  Impeachment  of  Waste,  123. 
Witnesses,  638,  648-650,  654 ;  in  cases 

of  treason,  606;  to  deeds,  231,  235;  to 

wills,  539. 
Women,  457. 
Words,   amounting  to  treason,  293;  of 

court,  630. 
Wray,  J.,  443. 
Writ,  disobedience  to  king's,  391 ;  form 

of   conveyance,    226;     form    of   will, 

536. 
Writing,  used  to  evidence  conveyances, 
221,  223,  225-226,  234,  see  Deeds  ;  used 
to  evidence  agreements,  415,  416. 


Writs  : 

Account,  123,  273. 

Admeasurement  of  dower,  21. 

Aiel,  24. 

Annuity,  152. 

Attaint,  26. 

Besaiel,  24. 

Capias,  604,  605. 

Causa  matrimonii  praelocuti,  22. 

Cessavit,  16,  28,  272,  273. 

Conspiracy,  404;  limitation  of  the 
scope  of,  404-405  ;  acquittal  needed, 
405 ;  more  than  one  dependent 
needed,  405. 

Consultation,  41 1,  558. 

Cosinage,  24. 

Covenant,  415-416,  417-420. 

Cui  in  vita,  22,  245,  525. 

Cui  ante  divortium,  22. 

Curia  claudenda,  28. 

De  consuetudinibus  et  serviciis,  15  i5, 
99. 

De  homine  replegiando,  497,  498. 

De  libertate  probanda,  20,  497,  500. 

De  nativo  habendo,  20,  497,  498,  499, 
508. 

De  proprietate  probanda,  284. 

De  rationabili  parte  bonorum  (land),  22, 
23  ;  (chattels),  550,  553. 

De  recto  custodiae  heredis,  17. 

Debt,  415-416;  when  brought  on  a 
sealed  writing,  418  ;  see  Debt,  action 
of. 

Decies  tantum,  399. 

Detinue,  see  Detinue. 

Diem  clausit  extremum,  61. 

Dower  unde  nihil  habet,  21. 

Dum  fuit  non  compos  mentis,  24. 

Dum  fuit  infra  aetatem,  24. 

Ejectio  firmae,  214,  216,  217. 

Elegit,  131. 

Entry,  5,  11-14,  90,  125  ;  in  the  per,  13  ; 
in  the  per  and  cui,  13  ;  in  the  post, 
13-14  ;  ad  communem  legem,  19  ;  ad 
terminum  qui  praeteriit,  12,  19 ;  in 
casu  proviso,  19  ;  in  consimili  casu,  19. 

Error,  605. 

Escheat,  16. 

False  judgment,  207. 

Fieri  facias,  131. 

Formedon,  17-18,  22,  114. 

Intrusion,  19. 

Mesne,  16. 

Monstraverunt,  265-266. 

Ne  injuste  vexes,  15. 

Nuper  obiit,  22-23. 

Partitione  facienda,  19. 

Per  quae  servitia,  82. 

Post  disseisin,  26. 

Prohibition,  in  cases  of  waste,  121, 
122  ;  in  cases  of  defamation,  410, 
411;  in  matters  testamentary,  558, 
594- 


INDEX 


695 


Writs  {Cont.)— 

Quare  ejecit,  214. 

Quare  impedit,  25,  100. 

Quare  non  admisit,  25. 

Qu  >  Jure,  20. 

Quo  warranto,  489,  490. 

Quod  ei  deforceat,  26. 

Quod  permittat,  20,  151. 

Redisseisin,  26. 

Right,  5,  12,  14,  22,  24,  89,  90,  180  ; 
patent,  5,  7-8 ;  of  advowson,  24  ;  of 
dower,  20,  21 ;  praecipe  in  capite,  5, 
6,  II,  13  ;  little  writ,  5,  265-266. 

Scire  facias,  489. 

Secta  ad  molendinum,  20,  28. 

Sine  assensu  capituli,  24. 

Warrantia  cartae,  16,  159,  160,  161, 
164. 

Withernam,  284. 


Written  Pleadings,  see  Procedure  and 

Pleading. 
Wrongs  to  Property,  360-371. 


Yates,  J.,  109. 

Year  and  Day,  315  ;  seisin  for,  240,  270. 

Year  Books,  the,  83,  85,  97,  122,  145, 
156,  178,  181,  182,  218,  252,  254,  273, 
278,  308,  310,  331,  341,  343,  346,  349, 
356,  361,  373,  395,  397,  4",  5i7,  529, 
539.  551,  576,  588,  618,  636,  638,  642, 
654.  655,  656,  657,  658. 

Year  Day  and  Waste,  69,  70,  260. 

Years,  estate  for,  see  Estates. 

Yelverton,  385. 

York,  province  of,  succession  in,  552, 
556  ;  guardianship  in,  512. 

Yorke,  508. 


PUHTBD  Di  OSBAT  BUTAIH  AT   THB  XJXtVMMSm  PKSSS,  ABBRDKUI 


KD  532  .H6  1922  v. 3  SMC 
Holdsworth,  William  Searle, 
A  history  of  English  law 


KmKv 


■yyA-'y^i'^i