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SELECT  ESSAYS   IN 
ANGLO-AMERICAN   LEGAL   HISTORY 


VOLUME  THREE 


1 


SELECT   ESSAYS   IN 
ANGLO-AMERICAN  LEGAL  HISTORY 

VOLUME  III 
HISTORY    OF    PARTICULAR    TOPICS,  CONTINUED 


CONTENTS 

BOOK  II:  HISTORY  OF  PARTICULAR  TOPICS 

(Continued) 

PART  V.       COMMERCIAL  LAW 

47.  General  Survey  of  the  History  of  the  Law  Mer- 

chant  .          .         THOMAS  EDWARD  SCRUTTON         7 

48.  The  Merchants  of  the  Staple       .         .  16 

SPENCER  BRODHURST 

49.  Contributions  of  the  Law  Merchant  to  the  Com- 

mon Law          .          FRANCIS  MARION  BURDICK       34 

50.  The  Early  History  of  Negotiable  Instruments     .       51 

EDWARD  JENKS 

51.  Promissory  Notes  Before  and  After  Lord  Holt    .       72 

WILLIAM  CRANCH 

52.  The  Early  History  of  Insurance  Law  ...       98 

WILLIAM  REYNOLDS  VANCE 

53.  The  Early  History  of  the  English  Patent  System     117 

EDWARD  WYNDHAM  HTJLME 

54.  The  History  of  the  Carrier's  Liability         .         .148 

JOSEPH  HENRY  BEALE,  JR. 

55.  Early  Forms  of  Corporateness  ....     161 

CECIL  THOMAS  CARR 

56.  Early  Forms  of  Partnership       ....     183 

WILLIAM  MITCHELL 

57.  The  History  of  the  Law  of  Business  Corporations 

before  1800       .          .         SAMUEL  WILLISTON     195 

58.  History  of  the  Law  of  Private  Corporations  in  the 

Colonies  and  States       SIMEON  EBEN  BALDWIN     236 


CONTENTS 


PART    VI.       CONTRACTS 

59.  The  History  of  Assumpsit          .         .    «     .          . 

JAMES  BARE  AMES 

60.  The  History  of  Parol  Contracts  prior  to  Assump- 

sit .         .        -.         JAMES  BARR  AMES     304 

\  61.  The  History  of  Contract     .         .         .         .         .  ^  320 

JOHN  WILLIAM  SALMOND 

62.  History  of  the  Beneficiary's  Action  in  Assumpsit     339 

CRAWFORD  DA  WES  HENING 

63.  The  History  of  Agency 368 

OLIVER  WENDELL  HOLMES,  JR. 


PART    VH.        TORTS 

64.  The  History  of  Trover 417 

JAMES  BARR  AMES 

65.  The  History  of  the  Law  of  Defamation     .         .       446 

VAN  VECHTEN  VEEDER 

66.  Responsibility  for  Tortious  Acts:    Its  History     .     474 

JOHN  HENRY  WIGMORE 


PART    Vm.       PROPERTY    (iN    GENERAL) 


\ 


67.  The  Disseisin  of  Chattels 541 

JAMES  BARR  AMES 

68.  The  Mystery  of  Seisin 591 

FREDERIC  WILLIAM  MAITLAND 

69.  The  History  of  the  Action  of  Ejectment  in  Eng- 

land and  the  United  States     .          .          .          .611 
ARTHUR  GEORGE  SEDGWICK  and 
FREDERICK  SCOTT  WAIT 

70.  The  Gage  of  Land  in  Mediaeval  England     .          .     646 

HAROLD  DEXTER  HAZELTINE 

71.  Changes   in  the  English  Law  of  Real  Property 

During  the  Nineteenth  Century        .          .          .     673 

ARTHUR  UNDERBILL 


CONTENTS 


PART    IX.       WILLS,    DESCENT,    MARRIAGE 

72.  The  Mediseval  Law  of  Intestacy          .          .          .723 

CHARLES  GROSS 

73.  Executors  in  Earlier  English  La\v      .          .          .      737 

OLIVER  WENDELL  HOLMES,  JR. 

74.  The  Executor  in  England  and  on  the  Continent  .     746 

ROBERT  CAILLEMER 

75.  The  Rise  of  the  English  Will     ....     770 
v  MELVILLE  MADISON  BIGELOW 

\  76.  Marriage  and  Divorce  Under  Roman  and  English 

Law  .  JAMES  BRYCE     782 


\ 


SELECT    ESSAYS 

IN 

ANGLO-AMERICAN   LEGAL 
HISTORY 

BY  VARIOUS  AUTHORS 


COMPILED   AND    EDITED    BY   A    COMMITTEE    OF    THE 

ASSOCIATION  OF  AMERICAN  LAW  SCHOOLS 


THKEE    VOLUMES 
VOLUME  III 


BOSTON" 

LITTLE,  BKOWN,  AND   COMPANY 
1909 


Copyright,  1909, 
BT  LITTLE,  BROWN,  ANI>  COMPANY, 


PREFACE 


W 


ITH  the  present  Volume  ends  this  collection  of  essays? 
and  the  editors  finish  their  task. 

How  shall  we  prologuise,  how  shall  we  perorate, 
Say  fit  things  upon  art  and  history? 


Suffice  it,  in  taking  leave,  to  express  the  hope  that  these 
volumes  have  in  perusal  been  as  interesting  to  their  readers 
as  they  were  in  preparation  to  their  editors.  Carlyle,  dis- 
coursing on  History,  reminds  us  that  "  whereas  of  old  the 
charm  of  History  lay  chiefly  in  gratifying  our  common  ap- 
petite for  the  wonderful,  for  the  unknown,  and  her  office  was 
but  as  that  of  Minstrel  and  Story-teller,  she  has  now  farther 
become  a  Schoolmistress,  and  professes  to  instruct  in  grati- 
fying." That  these  essays  may  gratify  while  instructing  is 
the  wish  of  the  editors. 

It  is  to  them  a  special  satisfaction,  in  this  third  Volume, 
to  have  succeeded  in  the  endeavor  (announced  in  the  preface 
to  the  second  Volume)  to  include  an  essay  worthily  repre- 
sentative of  French  scholarship  in  the  field  of  English  law  — 
that  of  Professor  Robert  Caillemer,  of  the  University  of 
Grenoble. 

In  this  Volume,  the  topics  are  all  of  concrete  and  vivid 
interest.  Several  of  them  trace  principles  still  in  process  of 
growth.  Research  has  in  some  important  respects  revealed 
different  results  to  different  scholars  working  on  the  same 
materials.  Hence  occasionally  the  added  interest,  for  the 
student,  of  reconciling  the  conflicting  beliefs,  or  of  choosing 
between  them.  For  those  who  must  decline  either  alternative, 


vi  PREFACE 

there  remains  the  consolation  proffered  six  centuries  ago  by 
the  seer  of  Italy,  "  To  doubt  is  not  less  grateful  than  to 
.know." 

The  editors,  in  thus  assembling  these  seventy-six  essays, 
may  be  granted  leave  (without  desiring  to  magnify  their 
office)  humbly  to  take  pleasure  in  the  thought  that  at  least 
and  at  last  something  has  been  finished  which  needed  to  be 
done,  while  the  profession  is  awaiting  the  accomplishment  of 
greater  and  more  difficult  tasks  in  the  vast  region  of  Anglo- 
American  legal  history.  THE  EDITORS. 

July  1,  1909. 


A    TABLE    OF    BRITISH    REGNAL    YEARS 

Sovereigns  Commencement    of   Reign 

William     I. October  14,  1066 

William  II September  26,  1087 

Henry    I August  5,  1100 

Stephen    December  26,  1135 

Henry    II December  19,  1154 

Richard    I September  23,  1189 

John     May  27,  1199 

Henry    III October  28,  1216 

Edward     I November  20,  1272 

Edward     II July  8,  1307 

Edward     III January  25,  1326 

Richard     II June  22,  1377 

Henry    IV September  30,  1399 

Henry    V March  21,  1413 

Henry    VI September  1,  1422 

Edward  }V March  4,  1461 

Edward     V April  9,  1483 

Richard     III June  26,  1483 

Henry    VII August  22,  1485 

Henry    VIII April  22,  1509 

s  Edward   VI January  28,   1546 

Mary     July  6,  1553 

Elizabeth    November  17,  1558 

James     I March  24,  1603 

Charles    I March  27,  1625 

The   Commonwealth    January  30,  1649 

Charles    II  * May  29,  1660 

James    II February  6,  1685 

William  and  Mary  February  13,  1689 

Anne     , March  8,  1702 

George    I i August  1,  1714 

George    II June  11,  1727 

George    III October  25,  1760 

George     IV January  29,  1820 

William     IV June  26,  1830 

Victoria June  20,  1837 

Edward     VII January  22,  1901 

1  Although  Charles  II.  did  not  ascend  the  throne  until  29th  May,  1660, 
his  regnal  years  were  computed  from  the  death  of  Charles  I.,  January 
30,  1649,  so  that  the  year  of  his  restoration  is  styled  the  twelfth  year  of 
his  reign. 


PART    V. 

COMMERCIAL    LAW 

47.  General  Survey  of  the  History  of  the  Law  Merchant. 

THOMAS  EDWARD  SCRUTTON. 

48.  The  Merchants  of  the  Staple. 

SPENCER  BRODHURST. 

49.  Contributions  of  the  Law  Merchant  to  the  Common  Law. 

FRANCIS  MARION  BURDICK. 

50.  Early  History  of  Negotiable  Instruments. 

EDWARD  JENKS. 

51.  Promissory  Notes  before  and  after  Lord  Holt. 

WILLIAM  CRANCH. 

52.  Early  History  of  Insurance  Law. 

WILLIAM  REYNOLDS  VANCE. 

53.  History  of  the  System  of  Patents  for  Industrial  In- 

vention. 

EDWARD  WYNDHAM  HULME. 

54.  History  of  the  Carrier's  Liability. 

JOSEPH  HENRY  BEALE,  JR. 

55.  Early  Aspects  of  Corporateness. 

CECIL  THOMAS  CARH. 

56.  Early  Forms  of  Partnership. 

WILLIAM  MITCHELL. 

57.  History   of  the  Law  of  Business   Corporations   before 

1800. 

SAMUEL  WILLISTON. 

58.  History  of  the  Law  of  Private  Corporations  in   the 

Colonies  and  States. 

SIMEON  EBEN  BALDWIN. 


OTHER  REFERENCES  ox  THE  SUBJECTS  OF  THIS  PART  ARE  AS  FOLLOWS: 

In  Select  Essays: 

Roman  Law  Influence  in  the  Law  Merchant,  by  T.  E.  Scrutton  (No. 
7,  Vol.  I). 

The  Development  of  the  Law  Merchant,  by  W.  S.  Holds  worth  (No.  9, 
Vol.  I). 

The  History  of  Admiralty  Jurisdiction,  by  T.  L.  Mears  (No.  30, 
Vol.  II). 

In  Other  Series  and  Journals: 

The  Early  History  of  the  Law  Merchant,  by  A.  T.  Carter  (Law- 
Quarterly  Review,  XVII,  232;  1901). 

The  History  of  Marine  Insurance,  by  F.  Martin  (1876). 

The  History  of  the  Liability  of  Ship-Owners  at  Common  Law,  by 
E.  L.  de  Hart  (Law  Quarterly  Review,  V,  15;  1889). 

The  History  of  the  Water-Carrier  and  his  Responsibility,  by  J.  B.  C. 
Stephen  (Law  Quarterly  Review,  XII,  116;  1896). 

Trust  and  Corporation,  by  F.  W.  Maitland  (Zeitschrift  fuer  das 
Privat  —  und  Oeffentliches  Recht  der  Gegenwart,  ed.  Gruenhut,  Vienna, 
XXIII,  1;  1904). 

The  Corporation  Sole,  by  F.  W.  Maitland  (Law  Quarterly  Review, 
XVI,  335;  1900). 

History    of    Admiralty   Jurisdiction    in   the    United    States    Supreme 
Court,  Anon.  (American  Law  Review,  V,  581;    1871). 
"    History  of  Joint  Stock  Companies,  by  T.  B.  Napier  (Ch.  XII  in  "  A 
Century  of  Law  Reform,"  1901). 

The  Genesis  of  a  Corporation,  by  R.  L.  Raymond  (Harvard  Law 
Review,  XIX,  350;  1906). 

History  of  the  Common-Law  Conception  of  a  Corporation,  by  E.  B. 
Seymour  (American  Law  Register,  New  Series,  XLII,  529;  1902). 

Carriers  and  the  Common  Law,  by  O.  W.  Holmes  (American  Law 
Review,  XIII,  609;  1879). 

The  Court  of  Piepowder,  by  C.  Gross  (Quarterly  Journal  of  Econom- 
ics, XX,  231;  1906). 

Legislative  History  of  Corporations  in  New  York,  by  A.  B.  Johnson 
(Hunt's  Merchants'  Magazine,  XX,  610;  1850). 

Borough  Customs,  Introduction  by  Mary  Bateson  (Selden  Society 
Publications,  vols.  XVIII,  XXI,  1904-6). 

Beverly  Town  Documents,  Introduction  by  A.  F.  Leach  (Selden 
Society  Publications,  vol.  XIV;  1900). 

Select  Pleas  of  the  Jewish  Exchequer,  Introduction  by  J.  M.  Rigg 
(Selden  Society  Publications,  vol.  XV;  1901). 

The  Leet  Jurisdiction  of  Norwich,  Introduction  by  W.  Hudson  (Selden 
Society  Publications,  vol.  V;  1891). 

The  Law  Merchant,  ,  Introduction  by  C.  Gross  (Selden 

Society  Publications,  vol.  XXIII;  1908). 

Leet  Jurisdiction  in  England,  by  F.  J.  C.  Hearnshaw  (Southampton 
Record  Society,  1908). 

The  Internal  Organization  of  the  Merchant  Adventurers  of  England, 
by  W.  E.  Lingelbach  (Phila.  1903). 

The  Evolution  of  the  English  Joint-Stock  Trading  Company,  by  F. 
Evans  (Columbia  Law  Review,  VIII,  339,  461;  1908). 


SELECT   ESSAYS 

IN 
ANGLO-AMERICAN  LEGAL  HISTORY 


47.     GENERAL  SURVEY  OF  THE  HISTORY  OF 
THE    LAW    MERCHANT1 

BY  THOMAS  EDWARD  SCRUTTON  2 

IF  you  read  the  law  reports  of  the  seventeenth  century  you 
will  be  struck  with  one  very  remarkable  fact ;  either  Eng- 
lishmen of  that  day  did  not  engage  in  commerce,  or  they 
appear  not  to  have  been  litigious  people  in  commercial  mat- 
ters, each  of  which  alternatives  appears  improbable.  But 
it  is  a  curious  fact  that  one  finds  in  the  reports  of  that  cen- 
tury, two  hundred  years  ago,  hardly  any  commercial  cases. 
If  one  looks  up  the  Law  of  Bills  of  Exchange,  "  the  cases  on 
the  subject  are  comparatively  few  and  unimportant  till  the 
time  of  Lord  Mansfield."  3  If  you  turn  to  Policies  of  Insur- 
ance, and  to  the  work  of  Mr.  Justice  Park  on  the  subject 
published  at  the  beginning  of  this  century,  you  find  him  say- 
ing :  "  I  am  sure  I  rather  go  beyond  bounds  if  I  assert  that 
in  all  our  reports  from  the  reign  of  Queen  Elizabeth  to  the 
year  1756,  when  Lord  Mansfield  became  Chief  Justice  of  the 
King's  Bench,  there  are  sixty  cases  upon  matters  of  insur- 
ance." 4  If  you  come  to  Charter  Parties  and  Bills  of  Lading, 

1  This  Essay  appeared  as  pp.  4-16,  Chap.  I,  of  "  The  Elements  of  Mer- 
cantile Law,"  1891  (London:  Wm.  Clowes  &  Sons),  a  course  of  lectures 
delivered  before  the  Incorporated  Law  Society.  The  same  passage  was 
afterwards  reprinted  in  the  late  Professor  Huffcut's  "Cases  on  Bills 
and  Notes." 

aA  biographical  notice  of  this  author  is  prefixed  to  Essay  No.  7,  in 
Vol.  I  of  these  Essays. 

•Chalmers,  Bills,  Pref.  p.  36.  'Park,  I.  Pref.  43. 


8  F.     COMMERCIAL    LAW 

which  have  always  been  productive  of  litigation,  you  find 
Sir  John  Davies  in  the  seventeenth  century  saying  that 
"  until  he  understood  the  difference  between  the  Law  of 
Merchants  and  the  Common  Law  of  England,  he  did  not 
a  little  marvel  what  should  be  the  cause  that  in  the  books 
of  the  Common  Law  of  England  there  should  be  found  so 
few  cases  concerning  merchants  and  ships,  but  now  the 
reason  was  apparent,  for  that  the  Common  Law  did  leave 
these  cases  to  be  ruled  by  another  law,  the  Law  Merchant, 
which  is  a  branch  of  the  Law  of  Nations." 

The  reason  why  there  were  hardly  any  cases  dealing  with 
commercial  matters  in  the  Reports  of  the  Common  Law 
Courts  is  that  such  cases  were  dealt  with  by  special  Courts 
and  under  a  special  law.  That  law  was  an  old-established 
law  and  largely  based  on  mercantile  customs.  Gerard 
Malynes,  who  wrote  the  first  work  on  the  Merchant  Law  in 
England,  called  his  book,  published  in  1622,  "  Consuetudo 
vel  Lex  Mercatoria"  or  the  Ancient  Law  Merchant;  and 
he  said  in  his  preface :  "  I  have  entituled  the  book  according 
to  the  ancient  name  of  Lex  Mercatoria,  and  not  Jus  Merca- 
torum,  because  it  is  a  customary  law  approved  by  the  author- 
ity of  all  kingdoms  and  commonweales,  and  not  a  law  estab- 
lished by  the  sovereignty  of  any  prince."  And  Blackstone, 
in  the  middle  of  the  last  century,  says :  "  The  affairs  of  com- 
merce are  regulated  by  a  law  of  their  own  called  the  Law 
Merchant  or  Lex  Mercatoria,  which  all  nations  agree  in  and 
take  notice  of,  and  it  is  particularly  held  to  be  part  of  the 
law  of  England  which  decides  the  causes  of  merchants  by  the 
general  rules  which  obtain  in  all  commercial  countries,  and 
that  often  even  in  matters  relating  to  domestic  trade,  as  for 
instance,  in  the  drawing,  the  acceptance,  and  the  transfer 
of  Bills  of  Exchange."  2  Later  than  Blackstone,  Lord  Mans- 
field lays  down  that  "  Mercantile  Law  is  not  the  law  of  a  par- 
ticular country,  but  the  law  of  all  nations  " ;  3  while  so  re- 
cently as  1883  you  find  Lord  Blackburn  saying  in  the  House 
of  Lords  that  "  the  general  Law  Merchant  for  many  years 

^ouch,  Jurisdiction  of  the  Admiralty  (1686),  p.  89. 
2  Blackstone,  Commentaries,  I.  273;  IV.  67. 
*  Luke  v.  Lyde,  2  Burr,  at  p.  887. 


47.     SCRUTTON:    GENERAL    SURVEY  9 

has  in  all  countries  caused  Bills  of  Exchange  to  be  negotiable  ; 
there  are  in  some  cases  differences  and  peculiarities  which 
by  the  municipal  law  of  each  country  are  grafted  on  it,  but 
the  general  rules  of  the  Law  Merchant  are  the  same  in  all 
countries." 

Now  if  we  follow  the  growth  of  this  Law  Merchant  or  Mer- 
cantile Law,  which  was  two  hundred  years  ago  so  distinct 
from  the  Common  Law,  we  find  it  in  England  going  through 
three  stages  of  development.2  The  first  stage  may  be  fixed 
as  ending  at  the  appointment  of  Coke  as  Lord  Chief  Justice 
in  the  year  1606,  and  before  that  time  you  will  find  the  Law 
Merchant  as  a  special  law  administered  by  special  Courts  for 
a  special  class  of  people. 

In  the  first  place  as  to  the  special  Courts.  The  greater 
part  of  the  foreign  trade  of  England,  and  indeed  of  the  whole 
of  Europe  at  that  time,  was  conducted  in  the  great  fairs, 
held  at  fixed  places  and  fixed  times  in  each  year,  to  which 
merchants  of  all  countries  came  ;  fairs  very  similar  to  those 
which  meet  every  year  at  the  present  time  at  Novgorod  in 
Russia,  and  at  other  places  in  the  East.  In  England,  also, 
there  were  then  the  great  fairs  of  Winchester  and  Stour- 
bridge,  and  the  fairs  of  Besan9on  and  Lyons  in  France,  and 
in  each  of  those  fairs  a  Court  sat  to  administer  speedy  justice 
by  the  Law  Merchant  to  the  merchants  who  congregated  in 
the  fairs,  and  in  case  of  doubt  and  difficulty  to  have  that  law 
declared  on  the  basis  of  mercantile  customs  by  the  merchants 
who  were  present.  You  will  find  this  Court  mentioned  in  the 
old  English  law  books  as  the  Court  Pepoudrous,  so  called^* 
because  justice  was  administered  "  while  the  dust  fell  from 
the  feet,"  so  quick  were  the  Courts  supposed  to  be.  "  This 
Court  is  incident  to  every  fair  and  market  because  that  for 
contracts  and  injuries  done  concerning  the  fair  or  market 
there  shall  be  as  speedy  justice  done  for  advancement  of  trade 
and  traffic  as  the  dust  can  fall  from  the  feet,  the  proceeding 
there  being  de  hora  in  horam."  3  Indeed,  so  far  back  as 
Bracton  in  the  thirteenth  century,  it  had  been  recognized  that 


v.  Clydesdale  Bank,  9  App.  C.  at  p.  105. 
2  Macdonell,  Preface  to  Smith's  Mercantile  Law,  p.  82. 
8  Coke,  Inst.  IV.  272. 


10  F.     COMMERCIAL    LAW 

there  were  certain  classes  of  people  "  who  ought  to  have 
swift  justice,  such  as  merchants,  to  whom  justice  is  given 
in  the  Court  Pepoudrous." 1  The  records  of  these  Courts 
are  few,  for  obviously  in  Courts  for  rapid  business  law  re- 
porters were  rather  at  a  discount.  As  a  consequence,  "  there 
is  no  part  of  the  history  of  English  law  more  obscure  than 
that  connected  with  the  maxim  that  the  Law  Merchant  is 
part  of  the  law  of  the  land."  2  We  are,  however,  fortunate 
enough  to  have  one  or  two  records  of  the  Courts  of  the  Fairs. 
The  Selden  Society  has  succeeded  in  unearthing  the  Abbot's 
roll  of  the  fair  of  St.  Ives  held  in  1275  and  129 1,3  containing 
a  series  of  cases  which  show  how  the  merchants  administered 
the  Law  Merchant  in  the  Courts  of  the  fair,  and  why  such 
cases  did  not  come  into  the  King's  Court.  For  instance :  — 
"  Thomas,  of  Wells,  complains  of  Adam  Garsop  that  he  un- 
justly detains  and  deforces  from  him  a  coffer  which  the  said 
Adam  sold  to  him  on  Wednesday  next  after  Mid  Lent  last 
past  for  sixpence,  whereof  he  paid  to  the  said  Adam  twopence 
and  a  drink  in  advance  "  —  (it  appears  to  have  been  a  very 
good  mercantile  custom,  still  existing,  to  "  wet  a  bargain," 
and  the  drink  was  a  matter  to  which  great  importance  was 
attached  by  the  merchants  present)  ;  "  and  on  the  Octave  of 
Easter  came  and  would  have  paid  the  rest,  but  the  said  Adam 
would  not  receive  it  nor  answer  for  the  said  coffer,  but  de- 
tained it  unconditionally  to  his  damage  and  dishonour,  2*., 
and  he  produces  suit.  The  said  Adam  is  present  and  does 
not  defend.  Therefore  let  him  make  satisfaction  to  the  said 
Thomas  and  be  in  mercy  for  the  unjust  detainer;  fine  6d. ; 
pledge  his  overcoat."  The  next  defendant  was  not  so  fortu- 
nate as  to  have  an  overcoat.  "  Reginald  Picard  of  Stamford 
came  and  confessed  by  his  own  mouth  that  he  sold  to  Peter 
Redhood  of  London  a  ring  of  brass  for  5%^'*  saying  that  the 
said  ring  was  of  the  purest  gold,  and  that  he  and  a  one-eyed 
man  found  it  on  the  last  Sunday  in  the  churchyard  of  St. 
Ives,  near  the  cross."  (One  fancies  one  has  heard  that  tale 
about  the  brass  ring  before.)  "  Therefore  it  is  considered 

1Bracton,  f.  334. 

*  Blackburn  on  Sale,  1st  ed.  p.  207. 

3  Selden  Society,  Vol.  II.  pp.  130  et  seq. 


47.     SCRUTTON:    GENERAL    SURVEY         11 

that  the  said  Reginald  do  make  satisfaction  to  the  said  Peter 
for  the  5% d.  and  be  in  mercy  for  the  trespass ;  he  is  poor ; 
pledge  his  body."  The  next  case  introduces  the  Law  Mer- 
chant. "  Nicolas  Legge  complains  of  Nicolas  of  Milden- 
hall  for  that  unjustly  he  impedes  him  from  having,  according 
to  the  usage  of  merchants,  part  in  a  certain  ox  which  Nicolas 
of  Mildenhall  bought  in  his  presence  in  the  village  of  St. 
Ives  on  Monday  last  past  to  his  damage  2s.,  whereas  he  was 
ready  to  pay  half  the  price,  which  price  was  2s.  6d.  And 
Nicolas  of  Mildenhall  defends,  and  says  that  the  Law  Mer- 
chant does  well  allow  that  every  merchant  may  participate 
in  a  bargain  in  the  butcher's  trade  if  he  claim  a  part  thereof 
at  the  time  of  the  sale;  but  to  prove  that  the  said  Nicolas 
Legge  was  not  present  at  the  time  of  the  purchase  nor  claimed 
a  part  thereof  he  is  ready  to  make  law."  Then  they  went  to 
the  proof.  The  custom  of  the  Law  Merchant  relied  on  ad- 
mitted any  merchant  standing  by  to  claim  a  share  in  any 
bargain  on  paying  a  share  of  the  price.  The  defence  is, 
*'  You  were  not  there,  so  you  cannot  claim."  The  next  and 
last  case  is  one  which  puzzled  the  Court,  and  therefore  I  omit 
the  details^  but  it  is  recited  in  the  Abbot's  roll :  "  And  the 
case  is  respited  till  it  shall  be  more  thoroughly  discussed  by 
the  merchants.  And  the  merchants  of  the  various  common- 
alties and  others  being  convoked  in  full  Court  it  is  con- 
sidered "  —  and  then  they  go  on  to  discuss  it.  There  you 
see  the  Merchants'  Court  at  work,  giving  quick  justice  in  all 
mercantile  disputes,  and  in  cases  of  doubt  calling  upon  the 
merchants  present  to  declare  what  the  Law  Merchant  is.  So 
much  for  the  fairs. 

« 

In  most  seaport  towns  also  you  would  find  a  similar  Court 
dealing  with  cases  arising  out  of  ships.  In  the  Domesday 
Book  of  Ipswich  *  it  is  stated,  "  The  pleas  between  strange 
folk  that  men  call  '  pypoudrous  '  should  be  pleaded  from  day 
to  day.  The  pleas  in  time  of  fair  between  stranger  and 
passer  should  be  pleaded  from  hour  to  hour,  as  well  in  the 
forenoon  as  in  the  afternoon,  and  that  is  to  wit  of  plaints 
begun  in  the  same  time  of  fair,  and  the  pleas  given  to  the  law 

1  Black  Book  of  Admiralty,  Rolls  Series,  II.  23. 


12  V.     COMMERCIAL    LAW 

marine  for  strange  mariners  passing,  and  for  them  that  abide 
not  but  their  tide,  should  be  pleaded  from  tide  to  tide."  Any 
ship  coming  into  the  port  of  Ipswich  with  a  dispute  about 
its  Charter  Party  or  Bill  of  Lading  may  get  summary  justice 
at  once  from  this  Court  at  Ipswich  between  tide  and  tide. 
Stress  may  be  laid  on  the  fact  that  the  Courts  sat  in  the  after- 
noon, because  at  that  time  the  King's  Courts  only  sat  from 
eight  in  the  morning  till  eleven  and  then  adjourned  for  the 
rest  of  the  day.  "  For  in  the  afternoons  these  Courts  are  not 
holden.  But  the  suitors  then  resort  to  the  perusing  of  their 
writings,  and  elsewhere  consulting  with  the  serj^ants-at-law 
and  other  their  counsellors,"1  so  that  the  time  taken  up  in 
consultation  by  the  Courts  in  London  was  taken  up  by  the 
Courts  at  Ipswich  in  dealing  summarily  with  cases,  and  let- 
ting the  strange  mariners  go  who  were  only  waiting  for  their 
tide. 

There  were  special  Courts  by  statute,  of  which  a  number 
of  "  grave  and  discreet  merchants  "  were  necessary  members, 
in  order  that  the  Mercantile  Law  founded  on  the  custom 
of  merchants  might  be  duly  applied  to  the  case  before  them. 2 
The  law  which  these  Courts  administered  was  what  was  called 
by  merchants  the  Law  Merchant  and  Law  of  the  Sea,  and  it 
was  common  to  nearly  every  European  country.  Much  of 
it  was  to  be  found  in  a  series  of  codes  of  Sea  Laws,  such  as 
the  Laws  of  Oleron  and  Wisbury,  and  the  Consolato  del 
Mare,  embodying  the  customs  and  practices  of  merchants 
of  different  countries,  and  it  was  not  the  Common  Law  of 
England.  Further,  it  was  only  for  a  particular  class. 
You  had  to  show  yourself  to  be  a  merchant  before  you  got 
into  the  Mercantile  Court;  and  until  about  two  hundred 
years  ago  it  was  still  necessary  to  show  yourself  to  be  a  mer- 
chant in  the  Common  Law  Courts  before  you  could  get  the 
benefit  of  the  Law  Merchant.3 

Now  the  second  stage  of  development  of  the  Law  Merchant 

1  Sir  J.  Fortescue. 

2  E.  g.  the  Court  established  by  43  Eliz.  c.  12,  of  which  eight  "  grave 
and  discreet  merchants  "  were  to  be  members,  who  were  to  determine  all 
insurance  cases  in  a  brief  and  summary  course,  without  formalities  of 
pleadings  or  proceedings. 

3  Vide  post,  pp.  29,  30. 


47.     SCRUTTON:    GENERAL    SURVEY         13 

may  be  dated  from  Lord  Coke's  taking  office  in  1606,  and 
lasts  until  the  time  when  Lord  Mansfield  became  Chief  Jus- 
tice in  1756,  and  during  that  time  the  peculiarity  of  its  de- 
velopment is  this :  that  the  special  Courts  die  out,  and  the 
Law  Merchant  is  administered  by  the  King's  Courts  of  Com- 
mon Law,  but  it  is  administered  as  a  custom  and  not  as  law, 
and  at  first  the  custom  only  applies  if  the  plaintiff  or  defend- 
ant is  proved  to  be  a  merchant.  In  every  action  on  a  Bill 
of  Exchange  it  was  necessary  formally  to  plead  "  secundum 
usum  et  consuetudinem  Mercatorum  "  —  according  to  the 
use  and  custom  of  merchants;1  and  it  was  sometimes  pleaded 
that  the  plaintiff  was  not  a  merchant  but  a  gentleman.2  And 
as  the  Law  Merchant  was  considered  as  custom,  it  was  the 
habit  to  leave  the  custom  and  the  facts  to  the  jury  without 
any  directions  in  point  of  law,  with  a  result  that  cases  were 
rarely  reported  as  laying  down  any  particular  rule,  because 
it  was  almost  impossible  to  separate  the  custom  from  the 
facts ;  as  a  result  little  was  done  towards  building  up  any 
system  of  Mercantile  Law  in  England.  /  The  construction  of 
that  system  began  with  accession  of  Lord  Mansfield  to 
the  Chief  Justiceship  of  the  King's  Bench  in  1756,  and  the 
result  of  his  administration  of  the  law  in  the  Court  for  thirty 
years  was  to  build  up  a  system  of  law  as  part  of  the  Com- 
mon Law,  embodying  and  giving  form  to  the  existing  cus- 
toms of  merchants.  When  he  retired,  after  his  thirty  years 
of  office,  Mr.  Justice  Buller  paid  a  great  tribute  to  the  serv- 
ice that  he  had  done.  In  giving  judgment  in  Lickbarrow  v. 
Mason, 8  he  said :  "  Thus  the  matter  stood  till  within  these 
thirty  years.  Since  that  time  the  Commercial  Law  of  this 
country  has  taken  a  very  different  turn  from  what  it  did 
before.  Lord  Hardwicke  himself  was  proceeding  with  great 
caution,  not  establishing  any  general  principle,  but  decreeing 
on  all  the  circumstances  put  together.  Before  that  period 
we  find  in  Courts  of  Law  all  the  evidence  in  mercantile  cases 
was  thrown  together;  they  were  left  generally  to  the  jury, 
and  they  produced  no  established  principle.  From  that  time 

Chalmers,  Bills,  Pref.  p.  44. 

2Cf.  Sars field  v.  Witherby  (1692),  Carthew,  82. 

8  2  T.  R.  73. 


14  V.     COMMERCIAL    LAW 

we  all  know  the  great  study  has  been  to  find  some  certain 
general  principle,  not  only  to  rule  the  particular  case  under 
consideration,  but  to  serve  as  a  guide  for  the  future.  Most 
of  us  have  heard  those  principles  stated,  reasoned  upon,  en- 
larged, and  explained  till  we  have  been  lost  in  admiration  at 
the  strength  and  stretch  of  the  human  understanding,  and  I 
should  be  sorry  to  find  myself  under  the  necessity  of  differing 
from  Lord  Mansfield,  who  may  truly  be  said  to  be  the  founder 
of  the  Commercial  Law  of  this  country."  Lord  Mansfield, 
with  a  Scotch  training,  was  not  too  favourable  to  the  Com- 
mon Law  of  England,  and  he  derived  many  of  the  principles 
of  Mercantile  Law,  that  he  laid  down,  from  the  writings  of 
foreign  jurists,  as  embodying  the  custom  of  merchants  all 
over  Europe.  For  instance,  in  his  great  judgment  in  Luke  v. 
Lyde*  which  raised  a  question  of  the  freight  due  for  goods 
lost  at  sea,  he  cited  the  Roman  Pandects,  the  Consolato  del 
Mare,  laws  of  Wisbury  and  Oleron,  two  English  and  two 
foreign  mercantile  writers,  and  the  French  Ordonnances,  and 
deduced  from  them  the  principle  which  has  since  been  part 
of  the  Law  of  England.  2  While  he  obtained  his  legal  prin- 
ciples from  those  sources,  he  took  his  customs  of  trade  and  his 
facts  from  Mercantile  Special  Juries,  whom  he  very  care- 
fully directed  on  the  law;  and  Lord  Campbell,  in  his  life  of 
Lord  Mansfield,  has  left  an  account  of  Lord  Mansfield's  pro- 
cedure. He  says : 3  "  Lord  Mansfield  reared  a  body  of  special 
jurymen  at  Guildhall,  who  were  generally  returned  on  all 
commercial  cases  to  be  tried  there.  He  was  on  terms  of  the 
most  familiar  intercourse  with  them,  not  only  conversing 
freely  with  them  in  Court,  but  inviting  them  to  dine  with 
him.  From  them  he  learned  the  usages  of  trade,  and  in  re- 
turn he  took  great  pains  in  explaining  to  them  the  principles 
of  jurisprudence  by  which  they  were  to  be  guided.  Several 
of  these  gentlemen  survived  when  I  began  to  attend  Guildhall 
as  a  student,  and  were  designated  and  honoured  as  '  Lord 
Mansfield's  jurymen.'  One  in  particular  I  remember,  Mr. 

'2  Burr.  883. 

2  Cf.  the  judgment  of  Willes,  J.,  in  Dakin  v.  Oxley,  15  C.  B.  N.  S.  646, 
for  similar  authorities. 

8  Campbell's  Lives  of  the  Lord  Chief  Justices,  II.  407,  note. 


47.     SCRUTTON:    GENERAL    SURVEY         15 

Edward  Vaux,  who  always  wore  a  cocked  hat,  and  had  almost 
as  much  authority  as  the  Lord  Chief  Justice  himself." 

Since  the  time  of  Lord  Mansfield  other  judges  have  carried 
on  the  work  that  he  began,  notably  Abbott,  Lord  Chief  Jus- 
tice, afterwards  Lord  Tenterden,  the  author  of  "  Abbott  on 
Shipping,"  Mr.  Justice  Lawrence,  and  the  late  Mr.  Justice 
Willes ;  and  as  the  result  of  their  labours  the  English  Law 
is  now  provided  with  a  fairly  complete  code  of  mercantile 
rules,  and  is  consequently  inclined  to  disregard  the  practice 
of  other  countries.  In  Lord  Mansfield's  time  it  would  have 
been  a  strong  argument  to  urge  that  all  other  countries  had 
adopted  a  particular  rule ;  at  the  present  time  English  Courts 
are  not  alarmed  by  the  fact  that  the  law  they  administer 
differs  from  the  law  of  other  countries. 


48.  THE  MERCHANTS  OF  THE  STAPLE  l 

BY  BERNARD  EDWARD   SPENCER  BRODHURST  2 

<  CENTURY  after  century,'  says  Dr.  Le  Bon  in  his  Psy- 
\J  chology  of  Peoples,  '  our  departed  ancestors  have  fash- 
ioned our  ideas  and  sentiments,  and  in  consequence  all  the 
motives  of  our  conduct.  The  generations  that  have  passed 
away  do  not  bequeath  us  their  physical  constitution  merely ; 
they  also  bequeath  us  their  thoughts.  We  bear  the  burden 
of  their  mistakes,  we  reap  the  reward  of  their  virtues.'  The 
good  as  well  as  the  evil  that  men  do  lives  after  them  to  the 
advantage  or  detriment  of  thousands  of  whom  they  never 
thought,  and  who,  as  likely  as  not,  have  never  heard  of  them. 
A  legal  code,  a  method  of  legal  procedure,  may  affect  inter- 
ests separated  by  centuries  of  time  from  those  which  in  the 
first  instance  they  were  intended  to  serve.  The  civil  law  of 
Rome,  embodied  in  the  codes  of  Theodosius  and  Justinian  in 
the  fifth  and  sixth  centuries,  has  been  the  guide  and  model 
for  most  of  the  legal  systems  of  Europe,  the  common  law  of 
England  and  the  Code  Napoleon  of  France  bearing  eloquent 
testimony  to  the  abilities  of  the  great  jurists  who  lived  and 
laboured  under  the  Roman  Empire. 

The  staple  system,3  long  since  dead  and  gone,  but  once  a 

1This  Essay  was  first  published  in  the  Law  Quarterly  Review,  vol. 
XVII,  1901,  pp.  56-76. 

2  Barrister  of  the  Inner  Temple,  1891;  Oxford  University,  M.  A.  1891, 
B.  C.L.  1891. 

Other  Publications:   Parish  Councils  Act,  1894;   Law  and  Practice  of 
the  Stock  Exchange,  1897. 

3  The  principal  authorities  referred  to  in  this  article  are:  —  A  Dialoge 
or  Confabulation  between  Two  Travellers.     By  William  Spelman,  circa 
1580.     Edited  by  J.  E.  Latton  Pickering.     London,  1896.     Statutes  of 
the  Realm,  1810-1824.     Prolusiones  Historicae.     By  the  Rev.  E.  Drake. 
Salisbury,   1837.     Commentaries   on   the   City   of  London.     By   George 


48.     BRODHURST:    THE    STAPLE  17 

most  important  element  in  moulding  and  directing  the  com- 
mercial activities  of  this  country,  is  an  instance  on  a  smaller 
scale  of  how  an  organization,  which  has  for  practical  pur- 
poses completely  vanished,  may  yet  exert  a  modifying  influ- 
ence over  some  detail  intimately  connected  with  a  people's 
well-being.  .  .  .*  The  connexion  between  the  merchants  of 
the  staple  and  bearer  debentures  is  perhaps  not  very  obvious 
at  first  sight.  Nevertheless  there  is  a  connexion,  and  a  not 
unimportant  one.  The  law  merchant  in  former  days  was  not, 
as  now,  a  part  of  the  common  law  administered  by  the  judges 
of  the  Queen's  Bench;  it  had  officials  of  its  own,  who  exer- 
cised jurisdiction  in  the  staple  courts.  Had  it  always  been 
part  and  parcel  of  the  common  law,  it  is  highly  probable  that 
cases  connected  with  bills  of  exchange  would  appear  in  the 
law  books  earlier  than  the  time  of  James  I,  seeing  that  they 
were  probably  well  known  in  England  at  least  three  centuries 
previously.  Owing  to  the  fact  that  no  mention  of  them  occurs 
at  an  earlier  date,  it  has  been  argued  that  the  custom  of  treat- 
ing bills  of  exchange  as  negotiable  did  not  date  from  time 
immemorial  (the  reign  of  Richard  I),  and  that  if,  in  spite 
of  that  fact,  these  instruments  have  been  recognized  as  being 
rendered  negotiable  through  the  instrumentality  of  the  law 
merchant,  there  is  no  reason  why  debentures  to  bearer  should 
not  likewise  be  acknowledged  as  negotiable  instruments  with- 
out the  intervention  of  a<  statute,  although  they  are  avowedly 
of  comparatively  recent  origin.  Now,  if  it  could  be  shown 
that  bills  of  exchange  were  dealt  with  in  the  courts  of  the 
staple  as  early  as  the  reign  of  Richard  I,  this  argument  would 
obviously  fall  to  the  ground.  It  is,  however,  improbable 
that  any  records  were  kept  of  proceedings  in  these  courts, 
and  even  if  such  records  did  exist,  it  would  certainly  be  diffi- 
cult to  carry  them  back  as  far  as  the  end  of  the  twelfth  cen- 
tury, if  the  instruments  themselves  were,  as  tradition  relates, 

Norton.  1869.  English  Gilds.  By  Toulmin  Smith.  London,  1870. 
Drei  volkswirthschaftliche  Denkschriften.  By  Reinhold  Pauli.  Gottin- 
gen,  1878.  The  Gild  Merchant.  By  Charles  Gross,  Ph.  D.  Oxford,  1890. 
A  History  of  the  Custom  Revenue  in  England.  By  Hubert  Hall.  Lon- 
don, 1892.  The  Growth  of  English  Industry  and  Commerce.  By  W. 
Cunningham,  D.  D.  Cambridge,  1896. 

1  [Here  the  author,  in  two  pages  omitted,  comments  on  certain  modern 
English  cases.  —  EDS.] 


18  V.     COMMERCIAL    LAW 

introduced  by  the  Venetians  in  the  thirteenth.  It  is  a  possible, 
if  not  a  very  probable,  hypothesis  that  some  of  the  Assyrian 
contract-tablets  in  the  British  Museum  are  bills  of  exchange 
in  a  rudimentary  form;  but,  so  far  as  concerns  the  decision 
of  the  question  whether  the  debentures  to  bearer  called  into 
existence  for  the  mercantile  convenience  of  the  nineteenth  cen- 
tury are  or  are  not  negotiable  instruments,  any  inquiry  on 
the  point  is  hardly  likely  to  be  fruitful  of  important  results. 
But  the  mere  fact  that  greater  light  on  the  peculiar  law  by 
which  the  mercantile  community  was  governed  in  the  early 
phases  of  our  history  might  effectually  modify  the  commercial 
relations  of  to-day,  proves  that  the  institutions  of  our  remote 
ancestors  are  occasionally  of  more  immediate  concern  to  us 
than  the  *  practical '  man  is  apt  to  believe. 

Involved  in  obscurity  as  the  precise  origin  of  the  staple 
system  is,  it  is  not  difficult  to  understand  how  it  came  into 
existence.  Until  almost  the  end  of  the  reign  of  Edward  III 
the  policy  of  the  English  Government  tended  rather  to  dis- 
courage than  to  encourage  trading  abroad  by  its  subjects. 
That  may  not  have  been  the  intention,  but  it  was  the  effect 
of  the  regulations  imposed.  At  that  comparatively  late 
period  English  merchants  were  practically  excluded  from 
foreign  commerce,  and  their  struggles  against  aliens  were 
chiefly  waged  around  the  internal  trade  of  the  country.  In 
the  twenty-seventh  year  of  Edward  III  we  find  it  enacted  that 
denizens  and  aliens  alike  may  purchase  wools,  &c.,  in  the 
counties,  and  convey  them  to  the  ports  of  embarkation,  but 
that  the  process  of  exporting  shall  be  exclusively  in  the  hands 
of  the  foreigners,  and  that  no  subject  of  the  realm  shall  ex- 
port wools  for  himself  in  the  name  of  an  alien,  nor  have  any 
agent  abroad  for  that  purpose,  nor  receive  payment  for  the 
same  abroad.  Naturally  enough  such  regulations  as  these 
caused  a  feeling  of  intense  jealousy  against  the  foreign  mer- 
chants, particularly  when  they  settled  in  this  country  and 
interfered  with  Englishmen,  who,  with  some  justification, 
considered  that,  as  compensation  for  the  disabilities  they  were 
under  as  regarded  foreign  commerce,  they  should  at  least  be 
allowed  a  free  hand  in  the  country's  internal  trade.  The  citi- 
zens of  London  had  long  since  formulated  regulations  of  their 


48.     BRODHURST:    THE    STAPLE  19 

own  under  which  aliens  should  trade.  Unfortunately,  how- 
ever, they  found  themselves  unable  to  enforce  their  rules,  and 
when  they  complained  to  Edward  I  that  they,  who  bore  the 
common  burdens  of  the  town,  were  impoverished  by  the  com- 
petition of  foreigners,  whose  stay  was  now  unlimited  instead 
of,  as  formerly,  restricted  to  forty  days,  that  monarch  re- 
fused to  assist  them.  Edward  was  inclined  to  favour  the 
merchants  of  Gascony  and  Flanders,  and  such  confederations 
as  the  Hanseatic  League,  to  which  he  gave  a  charter  of  incor- 
poration and  a  special  place  of  residence  in  the  style-haus. 
One  reason  of  the  favour  shown  to  them  probably  was  that  it 
proved  easier  to  squeeze  foreigners  bringing  their  wares  into 
the  kingdom  than  subjects  of  the  realm  taking  merchandise 
to  the  Continent.  The  latter  were  always  apt  to  kick  against 
what  they  believed  to  be  undue  exactions,  while  the  former, 
needing  the  king's  protection  against  the  hostility  of  his 
English  subjects,  were  ready  to  submit  to  the  payment  of 
tolls  which  might  under  other  circumstances  have  struck  them 
as  exorbitant. 

For  another  thing,  Edward,  in  favouring  the  foreigner  at 
the  expense  of  the  Englishman,  was  continuing  the  policy  of 
his  predecessors,  and  was  also  giving  effect  to  the  generally 
recognized  principle  that  the  foreigners'  visits  were  to  the 
advantage  of  the  country.  They  imported  wine  and  manu- 
factured commodities,  they  exported  the  raw  English  prod- 
ucts ;  and  it  is  quite  possible  that,  had  it  not  been  for  them, 
England  would  in  the  early  centuries  have  been  without  a 
foreign  trade  at  all.  It  is  highly  probable  that  the  policy 
was  extended,  as  many  a  policy  has  been,  beyond  the  period 
when  it  was  desirable  in  a  strictly  economical  view  of  this 
country's  interests ;  but  the  clauses  of  the  Great  Charter  had 
granted  freedom  of  trade  to  the  foreigner,  and  the  towns,  in 
their  municipal  regulations  as  well  as  by  their  representatives 
at  Acton  Burnel,  had  acquiesced  in  his  encouragement.  Aliens 
were,  indeed,  forced  to  pay  customs  at  a  higher  rate  than 
subjects,  but  this  does  not  seem  to  have  had  any  serious  effect 
in  counteracting  the  privileges  they  enjoyed.  At  any  rate, 
the  English  shipowners  appear  to  have  been  at  a  disadvantage 
during  the  greater  part  of  the  reign  of  Edward  III,  and  it 


20  V.     COMMERCIAL    LAW 

was  not  until  the  Navigation  Act  of  Richard  II  aimed  a  blow 
at  the  Gascon  merchants  that  the  Englishmen  were  able  to 
thoroughly  establish  their  footing  in  foreign  trade.  It  was 
then,  indeed,  that  the  export  trade  of  the  country  was  begin- 
ning to  be  organized  in  the  hands  of  the  Merchant  Adventur- 
ers and  the  Staplers.1 

We  must  not,  however,  suppose  that  English  activities  were 
entirely  confined  to  English  soil;  that  would  be  to  presume 
that  a  change  has  taken  place  in  English  character  for  which 
six  centuries,  howsoever  eventful,  would  be  quite  inadequate 
to  account.  The  end  of  the  thirteenth  and  the  beginning  of 
the  fourteenth  centuries  may  be  taken  as  the  culminating 
point  of  a  long  period  of  steady  and  solid  progress.  The 
towns,  which  were  the  centres  of  commercial  life,  were  in  a 
highly  prosperous  condition,  and  the  circumstances  of  the 
time  were  generally  favourable  to  a  rapid  industrial  advance. 
It  was,  therefore,  only  to  be  expected  that,  however  English- 
men as  a  body  might  be  hampered  by  governmental  restric- 
tions in  forming  commercial  connexions  abroad,  a  natural 
pushfulness  would  carry  an  individual  here  and  there  over  all 
the  obstacles  set  in  his  way.  That  this  expectation  is  not 
unfounded  is  proved  by  the  fact  that  an  old  writer  mentions 
a  mayor  of  the  English  merchants  trading  in  Flanders  as 
having  been  sent  to  settle  certain  disputes  in  the  year  1313. 2 
Such  an  official  could  only  have  belonged  to  some  kind  of 
recognized  association,  and  it  may  accordingly  be  fairly 
assumed  that  English  traders  were  by  no  means  unknown 
on  the  Continent  in  the  early  years  of  Edward  II,  while  it  is 
highly  probable  that  they  frequented  various  marts  in  Bra- 
bant, Flanders,  and  Antwerp  at  a  considerably  earlier  date. 

However  that  may  be,  the  institution  which  was  subse- 
quently to  give  the  impetus  to  and  exert  a  powerful  influence 
over  England's  foreign  trade  became  a  distinct  political 
organism  in  the  reign  of  Edward  III.  It  had  long  been  the 
custom  to  hold  fairs  at  all  places  of  any  importance  through- 
out the  kingdom.  Thither  the  country  folk  would  bring  their 
produce  for  sale,  and  there,  until  the  time  of  Edward  III, 

1  Cunningham,  English  Industry  and  Commerce,  i.  290,  291. 
*  Rymer,  Foedera,  ii.  202. 


48.     BRODHURST:    THE    STAPLE  21 

the  greater  part  of  the  wholesale  trade  of  the  country  was 
transacted,  aliens  being  free  to  frequent  them.1  The  policy 
of  the  fourteenth  century,  however,  was  to  draw  trade  into 
a  few  selected  towns  in  which  were  established  continuous- 
markets  or  staples,  and  not  to  be  content  with  the  occasional 
opportunities  for  trade  which  the  intermittent  fairs  afforded. 
The  same  policy  seems  to  have  been  pursued  in  Norway  where 
Bergen  was  the  staple  for  the  Iceland  trade,  and  in  France 
where  Philip  did  his  utmost  in  1314  to  induce  the  English 
to  frequent  the  staple  at  St.  Omer  instead  of  the  fair  at  Lille.2 
That  it  was  not  always  easy  to  give  effect  to  the  policy  is 
evident  from  the  proceedings  relating  to  the  royal  staple  at 
Bergen.  The  English  persisted  in  trading  direct  with  Ice- 
land, and  set  at  naught  the  regulations  which  governed 
transactions  at  the  staple.  The  King  of  Norway  thereupon 
confiscated  the  goods  of  English  merchants  throughout  his 
dominions,  a  step  which  caused  general  consternation,  since 
there  were  no  Danish  merchants  trading  with  England 
against  whom  reprisals  could  be  made.  The  contraband  trade 
with  Iceland,  however,  continued  to  be  carried  on  in  spite 
of  these  endeavours  to  put  it  down,  until  in  1476  the  ravaging 
of  the  island  and  the  slaughter  of  the  royal  bailiff  was  met 
by  the  prompt  exclusion  of  the  English  from  Bergen  and  the 
triumph  for  the  time  of  the  Hanseatic  League.3 

Still,  in  spite  of  constant  violations,  the  staple  system  grew 
and  throve.  It  is  possible  that  the  majority  of  merchants 
preferred  to  have  one  or  more  marts  assigned,  where  English 
produce  might  regularly  be  supplied,  so  that  those  who 
wished  to  purchase  it  could  frequent  that  recognized  place 
of  sale.  In  early  times,  when  the  stream  of  commerce  was  too 
feeble  to  permeate  constantly  to  all  parts  of  the  country,  the 
concentration  of  trade  at  certain  staple  towns  was  probably 
advantageous  to  its  growth;  particularly  as  the  merchants 
assembling  there  might  obtain  a  grant  of  political  and  judi- 
cial privileges,  which  they  could  not  hope  for  unless  they 
undertook  to  frequent  the  town  and  pay  the  dues  regularly. 
Jurisdiction  to  enforce  bargains  must  in  particular  have  been 

1  Cunningham,  English  Industry  and  Commerce,  i.  293. 
2 Ibid.        'Ibid.,  i.  418. 


22  V.     COMMERCIAL    LAW 

a  highly  valued  privilege  at  a  time  when  the  execution  of 
contracts  generally  was  not  easily  compellable  by  legal  proc- 
ess, and  was  probably  well  worth  the  sacrifice  of  the  freedom 
of  trade  which  the  staple  regulations  entailed.  And  although 
there  were  some  traders  who  preferred  to  trade  at  other  ports 
than  the  staple,  and  were  willing  to  pay  for  royal  licenses  to 
do  so,  we  may  assume  that  the  system  met,  on  the  whole,  with 
the  approval  of  the  commercial  classes.  At  any  rate  we  find 
that  the  merchants  of  Scotland  considered  it  desirable  to  fix 
a  staple  at  Campfer  in  1586  and  not  to  have  an  open  trade, 
and  if  the  system  had  not  possessed  substantial  advantages 
it  would  certainly  not  have  met  with  so  generally  favourable 
a  reception  as  it  did.  The  objects  of  the  staple  system  were 
fourfold : 

Primarily  it  was  a  fiscal  provision,  its  object  being  to  facili- 
tate the  collection  of  the  royal  customs ;  and  it  is  easy  to  see 
how  much  more  simple  a  matter  this  collection  would  become 
if  exportation  were  confined  to  a  dozen  English  ports  and  one 
foreign  centre,  than  if  permitted  at  the  absolute  discretion 
of  the  producer  or  the  merchant.  To  the  king  it  was  a  matter 
of  personal  interest  that  the  duties  should  be  fully  paid,  since 
his  private  expenditure  depended  in  those  days  upon  the  cus- 
toms, and  he  was  accordingly  willing  to  confer  such  privileges 
as  would  be  likely  to  entice  traders  to  comply  with  the  regula- 
tions of  the  system. 

In  the  second  place,  the  staple  system  fulfilled  a  useful  func- 
tion by  ensuring  the  quality  of  exported  goods.  Commercial 
morality  was  none  too  high  in  those  days,  and  the  average 
trader  fully  appreciated  the  maxim  caveat  emptor.  He  had 
not  the  ingenuity  of  his  nineteenth-century  successor,  but 
such  tricks  as  he  knew  for  the  undoing  of  the  consumer  he  too 
often  practised  with  energy  and  perseverance.  The  staple 
checked  his  activities  in  this  direction  by  providing  a  machin- 
ery for  viewing  and  marking  merchandise  at  the  staple  towns 
and  places  of  export.1  The  statute  27  Edward  III  enacted 
that  all  wool  for  export  should  be  brought  to  fifteen  staple 
towns  named  therein,  and  that  the  weight  should  be  certified 
by  the  mayor  of  the  staple  under  his  seal.  When  the  staple 

1  Gross,  Gild  Merchant,  i.  144. 


48.     BRODHURST:    THE    STAPLE  23 

town  and  the  place  of  export  were  not  identical  (the  port  for 
York,  for  instance,  was  Hull;  of  Lincoln,  St.  Botolf ;  of 
Norwich,  Yarmouth;  of  Westminster,  London;  of  Canter- 
bury, Sandwich;  and  of  Winchester,  Southampton),  the  wool 
was  weighed  a  second  time  on  reaching  the  port ;  but  where 
the  staple  town  was  itself  a  seaport,  as  were  Newcastle,  Bris- 
tol, and  Dublin,  a  single  weighing  sufficed.  An  indenture 
was  then  made  between  the  mayor  of  the  staple  and  the  '  cus- 
tomers,' and  the  tolls  were  paid  by  the  merchant,  these  being 
considerably  heavier  in  the  case  of  aliens  than  denizens. 

Even  when  raw  materials  only  were  exported  this  precau- 
tion seems  to  have  been  desirable  to  prevent  adulteration,  and 
it  no  doubt  became  additionally  so  as  merchandise  manufac- 
tured in  England  began  to  be  sold  abroad.  When  the  staple 
system  began  to  decay  and  the  precautions  against  fraudu- 
lent dealing  were  relaxed,  the  quality  of  goods  quickly  deteri- 
orated. In  a  Dialogue  or  Confabulation  between  Two  Trav- 
ellers, written  about  the  year  1580,  we  are  introduced  at  a 
meeting  consisting  of  a  '  Cittye  clothyer,'  a  *  coritrye  cloth- 
yer,'  a  husbandman  and  a  merchant,  at  which  a  discussion 
takes  place  as  to  the  causes  of  the  deterioration  of  English- 
made  clothing.  It  is  generally  agreed  that  the  fault  lies 
chiefly  with  the  careless  and  inefficient  methods  of  examining 
and  marking  woollen  goods  now  in  vogue,  and  the  husband- 
man quaintly  points  out  the  difference  between  the  good  old 
times  and  the  present.  '  In  times  paste,'  says  he,  '  we  had 
clothes  made  that  woold  contynue  a  man's  lyfe,  where  now  yf 
yt  be  worne  two  or  thre  yeares  yt  is  so  thryd  bare  as  a  lowse 
can  have  no  coverte.' 

Thirdly,  the  system  seems  at  one  time  to  have  been  em- 
ployed to  replenish  the  stock  of  gold  in  this  country.  The 
idea  was  that  the  English  merchants  trading  at  Calais  should 
refuse  to  take  payment  for  their  wares  except  in  the  precious 
metals,  thus  enticing  the  coin  of  other  countries  into  Eng- 
land ;  and  an  old  writer  complains  bitterly  that,  on  a  stand- 
ard rate  of  exchange  being  established  at  Calais,  the  former 
practice  was  given  up  to  the  detriment  of  the  kingdom.  Ad- 
venturers, he  tells  us,  have  brought  strange  merchandise  out 
of  Flanders  to  destroy  the  manufactures  in  England,  with 


24  V.     COMMERCIAL    LAW 

the  result  that  the  king  and  his  lords  are  in  difficulties  for 
money.  '  The  whole  wealth  of  the  realm,'  he  says,  '  is  for  all 
our  rich  commodities  to  get  out  of  all  other  realms  therefor 
ready  money ;  and  after  the  money  is  brought  into  the  whole 
realm,  so  shall  all  people  in  the  realm  be  made  rich  therewith. 
And  after  it  is  in  the  realm,  better  it  were  to  pay  (yd.  for  any- 
thing made  in  the  realm  than  to  pay  but  4td.  for  a  thing  made 
tout  of  the  realm,  for  that  6d.  is  also  spent  in  the  realm  and 
the  4>d.  spent  out  of  the  realm  is  lost  and  not  ours.' 1 

Edward  III,  it  is  true,  allowed  payment  to  be  made  indif- 
ferently in  gold,  silver,  or  merchandise,  so  long  as  the  pay- 
ment took  place  in  this  country,  and  not  more  money  was 
taken  out  of  the  kingdom  than  was  brought  in.2  Richard  II, 
however,  provided  that  foreigners  were  to  receive  at  least 
half  the  value  of  the  wares  they  brought  into  the  kingdom  in 
English  merchandise,3  which,  whatever  may  have  been  the 
intention,  certainly  had  the  effect  of  keeping  coin  in  the  coun- 
try as  well  as  pushing  English  goods  abroad.  Henry  VI, 
after  stating  that  the  mint  at  Calais  was  '  like  to  be  void, 
desolated,  and  destroyed,' 4  provided  that  the  whole  payment 
for  wool,  woolfels,  and  tin  should  be  made  in  gold  and  silver 
without  collusion,  and  that  the  bullion  should  be  brought  to 
the  Calais  mint.  No  part  of  the  price  was  to  be  left  outstand- 
ing on  goods  sold,  in  order  that  '  the  same  money  may  be 
brought  within  the  realm  without  subtilty  or  fraud.'  6  In  the 
third  year  of  Edward  IV,  again,  we  find  a  petition  from  the 
Commons  asking  that  all  coin  and  bullion  received  at  the 
staple  should  be  brought  to  the  mint  at  Calais  and  thence 
returned  to  England,  showing  that  Parliament  regarded  the 
system  as  a  method  of  replenishing  the  gold  stocks  of  the 
kingdom.  The  means  adopted  may  not  accord  with  the  eco- 
nomic principles  of  modern  times,  but  there  was  possibly  some 
justification  for  them  in  an  age  when  there  was  not  a  constant 
flow  of  gold  to  our  shores  from  Africa,  America,  and  Aus- 
tralia. 

Fourthly,  the  system  provided  a  special  tribunal  designed 

*A  Treatise  concerning  the  Staple,  in  Pauli,  Drei  volksw.  Denk.,  pp. 
19,  32. 

8  27  Edw.  III.  c.  3,  14.         8  14  Rich.  II.  c.  1. 
4  8  Henry  VI.  c.  17.          8  Ibid.  c.  18. 


48.     BRODHURST:    THE    STAPLE  25 

*  to  give  courage  to  merchant  strangers  to  come  with  their 
wares  and  merchandise  into  the  realm.' l  The  provision  of 
a  satisfactory  machinery  for  the  recovery  of  debts  was,  by  the 
end  of  the  thirteenth  century,  becoming  a  prime  necessity  of 
the  growth  of  commerce,  and  the  staple  system  afforded  a 
convenient  basis  on  which  to  build  up  a  judicial  procedure. 
Wherever  a  market  or  fair  was  held  it  had  been  customary 
from  a  very  remote  period  that,  when  disputes  arose  as  to  the 
terms  of  a  bargain,  the  questions  at  issue  should  be  decided 
by  four  or  five  of  the  merchants  present  on  the  spot,  who  were 
expected  to  apply  the  principles  and  customs  recognized  as 
obtaining  generally  among  the  trading  classes.  This  prac- 
tice is  referred  to  in  a  charter  of  Henry  III  as  having  pre- 
vailed for  many  years  previously,2  and  it  was  this  informal 
judicial  procedure  upon  which  was  now  conferred  the  sanc- 
tion of  parliamentary  authority.  Justice,  it  was  ordained, 
was  to  be  done  to  the  foreigner  from  day  to  day  and  hour  to 
hour,  according  to  the  law  of  the  staple  or  the  law  merchant, 
and  not  according  to  the  common  law  or  particular  burghal 
usages.3  Alien  merchants  were  to  be  impleaded  before  no 
tribunal  but  that  of  the  mayor  and  constables  of  the  staple.4 
These  officials  were  to  be  elected  annually  in  every  staple  town 
by  the  commonalty  of  the  merchants,  aliens  as  well  as  deni- 
zens. They  were  empowered  to  keep  the  peace,  and  to  arrest 
offenders  for  trespass,  debt,  or  breach  of  contract.  The 
mayor  was,  further,  to  have  recognizances  of  debts,  a  seal 
being  provided  for  the  purpose.5 

The  court  of  the  staple  had  no  cognizance  of  criminal 
offences,  unless  when  the  avenger  of  blood  chose  to  prosecute 
at  his  own  peril.6  Speaking  of  the  court  of  the  staple  at 
Calais,  Mr.  Hall  says  7  that  it  was  a  tribunal  analogous  in 
many  respects  to  the  local  councils  of  the  north  and  west  of 
England  under  Tudor  sovereigns.  Its  main  object  was  to 
draw  all  civil  actions  in  which  staplers  were  in  any  wise  con- 

1  27  Edw.  III.  c.  2.          2  Norton's  City  of  London,  324. 
8  27  Edw.  III.  c.  2.          *  Ibid.  c.  8.          B  Ibid.  c.  9. 

6  Hall's  History  of  the  Customs,  i.  34.    Chapter  8  of  27  Edward  III 
gave  jurisdiction  to  the  staple  courts  to  try  felonies  committed  by  or 
against  merchants  of  the  staple  or  their  servants,  but  this  power  was 
withdrawn  by  36  Edward  III.  c.  7. 

7  Ibid.  i.  33. 


26  V.     COMMERCIAL    LAW 

cerned  within  its  jurisdiction,  in  order  to  expedite  the  course 
of  justice  and  to  lessen  the  expenses  incident  thereto.  In 
addition  to  trying  civil  actions  there  appears  to  have  been, 
in  that  instance,  a  general  jurisdiction  to  deal  with  all  mat- 
ters concerning  the  well-being  of  the  mercantile  community ; 
for  we  find  that  the  mayor,  in  a  full  court  of  all  the  merchants, 
was  to  assign  to  each  merchant  lodgings  suitable  for  his 
entertainment,  which  he  must  frequent  unless  he  could  show 
good  cause  to  the  contrary.  But  this  extended  jurisdiction 
was  granted,  no  doubt,  after  the  staplers  of  Calais  had  been 
incorporated,  and  had  reference  only  to  the  members  of  the 
corporation. 

It  was  further  enacted,  by  the  statute  already  referred  to, 
that  the  mayors,  sheriffs,  and  bailiffs  of  the  towns  where  the 
staples  were  held,  should  aid  the  mayors  and  constables  of  the 
staples  in  the  execution  of  their  duties.1  This  must  be  read 
as  referring  to  those  cases  only  in  which  these  offices  were  not 
combined,  or,  perhaps,  as  relating  to  a  time  before  municipal 
economy  had  seen  the  advantage  of  combination.  For  we 
find,  in  Toulmin  Smith's  English  Gilds,2  that  at  the  annual 
induction  of  the  mayor  of  Bristol  '  there  was  to  be  redde  the 
Maires  Commission  of  the  Staple  with  the  dedimus  potestatem^ 
and  upon  the  same  the  Maire  there  to  take  his  othe,  after  the 
fforme  and  effect  of  a  Cedule  enclosid  withyn  the  seide  dedi- 
mus potestatem  yf  it  be  then  y-come.'  And  on  the  same  day 
the  mayor  was  to  call  before  him  his  sergeants  to  be  bound 
with  their  sureties  for  the  proper  execution  of  their  offices 
during  the  year  '  as  wele  in  the  Staple  court  as  otherwyse.' 
This  record  was  written  by  Robert  Ricart,  who  became  Town 
Clerk  of  Bristol  in  1497.  He  tells  us  that  he  received  instruc- 
tions from  one  Spencer,  the  mayor  for  that  year,  '  to  devise, 
ordaigne,  and  make  this  present  boke  for  a  remembratif  evir 
hereafter,  to  be  called  and  named  the  Maire  of  Bristowe  is 
Register,  or  ellis  the  Maire  is  Kalendar.'  Now,  by  a  charter 
granted  to  Bristol  in  the  forty-seventh  year  of  Edward  III 
(1373),  jurisdiction  was  given  to  the  mayor  and  sheriffs,  to 
hear  and  determine  all  suits  relating  to  all  contracts,  cove- 
nants, accounts,  debts,  trespasses,  pleas,  and  plaints  arising 

1  27  Edw.  III.  c.  21.  2  P.  419. 


48.     BRODHURST:    THE    STAPLE  27 

within  the  town  of  Bristol,  its  precincts  and  suburbs,  with 
the  exception  of  those  cases  only  in  which  a  writ  of  error 
should  lie  to  the  justices  in  eyre,  or  of  gaol  delivery,  and  also 
of  '  inquisitions  and  determinations  of  customs  and  subsidies 
of  wool,  leather,  skins,  felts,  and  other  customs  and  subsidies 
of  us  and  our  heirs  by  cocket *  or  otherwise  belonging  to  us 
or  our  heirs  from  the  grant  of  our  faithful  people  and  sub- 
jects.' 2  These  words  would  seem  to  show  that  the  officials 
of  the  staple  and  of  the  borough  were  not  identical  in  1373. 
On  the  other  hand,  since  Ricart  writes  as  if  there  were  nothing 
unusual  or  new  in  the  execution  of  the  duties  of  the  staple 
by  the  mayor  of  the  borough,  we  must  conclude  that  the 
amalgamation  of  the  staple  and  the  ordinary  jurisdictions 
took  place  in  this  instance  nearer  to  1373  than  to  1479.  In- 
deed, the  mayor  of  the  staple  town,  where  there  was  one, 
would  seem  to  be  a  most  fit  and  proper  person  to  execute  the 
duties  attaching  to  the  staple,  since  27  Edward  III  specifi- 
cally required  one  who  was  well  versed  in  the  law  merchant 
to  fill  the  office  of  mayor  of  the  staple,  and  no  one  was  more 
likely  to  possess  the  necessary  qualification  than  the  man 
chosen  by  the  burgesses  as  their  representative  and  head.  It 
would  not  be  safe  to  conclude  that  it  became  at  any  time  a 
general  practice  for  the  mayor  of  the  borough  to  discharge 
the  duties  of  mayor  of  the  staple,  since  we  find  that  at 
Drogheda  the  mayor  and  sheriffs  of  the  borough  one  year 
became  mayor  and  constables  of  the  staple  in  the  following 
year,  and  master  and  wardens  of  the  Gild  of  Merchants  in 
their  third  year.  But  as  the  mayor  and  sheriffs  of  Water- 
ford  were,  by  virtue  of  their  office,  mayor  and  constables  of 
the  staple  at  the  same  time,3  it  is  probable  that  such  a  com- 
bination was  not  unusual. 

The  foreign  merchant  was,  it  appears,  not  compellable 
originally  (whatever  may  have  been  the  case  at  a  later  date) 
to  bring  his  case  in  the  staple  court :  he  might,  if  he  so  pre- 
ferred, sue  in  the  courts  of  common  law,  and  have  the  law 

1  A  cocket  was  a  parchment  scroll  sealed  and  delivered  by  the  officers 
of  the  custom-house  to  merchants  as  a  warrant  that  *  their  merchandises 
-are  customed.' 

a  Seyer's  Bristol  Charters,  pp.  52  et  seq. 

8  Gross,  Merchant  Gild,  i.  146,  147  and  notes. 


28  F.     COMMERCIAL    LAW 

of  the  land  applied  instead  of  the  law  merchant.1  And  al- 
though the  justices  in  eyre,  of  assise,  and  of  the  Marshalsea, 
were  not  to  intervene  in  matters  of  which  the  mayor  of  the 
staple  had  cognizance,2  there  was  an  appeal  to  the  Chancellor 
and  the  King's  Council,  if  the  mayor  had  unduly  favoured 
either  party.3  It  would  seem  probable,  also,  that  the  Chan- 
cellor had  an  original  as  well  as  an  appellate  jurisdiction  ;  for 
in  the  thirteenth  year  of  Edward  IV  we  find  that  official 
stating,  in  a  suit  brought  before  him  in  the  Star  Chamber 
by  a  foreign  merchant,  that  the  plaintiff  was  not  bound  to 
sue  in  the  ordinary  courts,  4  but  he  ought  to  sue  here,  and  it 
shall  be  determined  by  the  law  of  nature  in  Chancery.'  The 
administration  of  justice  in  the  case  of  foreigners  was,  he 
said,  to  be  '  secundum  legem  naturae,  which  is  called  by  some 
the  law  merchant,  which  is  the  law  universal  of  the  world.' 
In  the  case  in  question  the  justices  certified  that,  since  the 
plaintiff  was  an  alien,  his  goods  were  not  forfeited  to  the 
Crown 'as  a  waif,  though  they  would  have  been  had  he  been 
a  subject.4  We  may,  however,  surmise  that  proceedings  in 
the  Star  Chamber  were  exceptional,  and  were  possibly  only 
resorted  to  when  the  dispute  concerned  property  of  more 
than  usual  value.  Under  ordinary  conditions  the  courts  of 
the  staple  would  be  the  most  expeditious  and  satisfactory 
means  of  settling  those  differences  of  opinion  which  were  as 
certain  to  arise  in  the  course  of  mercantile  transactions  in 
the  fourteenth  and  fifteenth  centuries  as  they  are  to-day. 

If  an  inquest  was  held  to  try  the  truth  of  any  question  in 
the  staple  courts,  the  jury  was  to  consist  wholly  of  denizens, 
when  both  parties  to  the  suit  were  subjects ;  wholly  of  aliens, 
when  both  of  the  parties  were  aliens;  and  half  of  denizens 
and  half  of  aliens,  when  one  of  the  parties  was  a  subject  and 
the  other  a  foreigner. 

The  statute  staple  —  the  recognizance  c  in  the  nature  of 
a  statute  staple '  afterwards  became  a  usual  form  of  security 
in  the  ordinary  courts  —  was  introduced  in  the  staple  courts. 
It  was  a  bond  of  record  acknowledged  before  the  mayor  of 
the  staple,  in  the  presence  of  one  or  all  the  constables.  To 

'07  Edw.  III.  c.  8.  227  Edw.  III.  c.  5.  3  Ibid.  c.  21. 

*  Blackburn  on  Sale,  317  (2nd  ed.)  ;  and  see  Malynes,  Lex  Merc.  311.. 


48.     BRODHURST:    THE    STAPLE  29 

all  obligations  made  on  recognizances  so  acknowledged  it 
was  required  that  a  seal  should  be  affixed,  and  this  seal  of  the 
staple  was  all  that  was  necessary  to  attest  the  contract.  The 
seal  belonging  to  the  staple  court  of  Poole  is  still  in  existence, 
and  bears  the  words  '  Si j ill:  Staple  in  Portu  de  Pole.'1 

With  the  object  of  giving  effect  to  the  staple  regulations 
a  number  of  the  most  considerable  towns  in  the  kingdom  were 
named  as  staple  towns.2  To  these  centres  the  principal  raw 
commodities  of  the  kingdom  —  such  as  wool,  woolfels,  leather, 
tin,  and  lead  —  were  brought  for  sale  and  exportation,  and 
were  in  consequence  known  as  the  '  staple '  wares  of  England, 
though  the  term  came  in  time  to  be  applied  almost  exclu- 
sively to  wool.  In  speaking  of  the  growth  of  duties  on  ex- 
ports and  imports  Blackstone  says:  — 

'  These  (i.  e.  the  customs  on  wool,  skins,  and  leather)  were 
formerly  called  the  hereditary  customs  of  the  Crown,  and 
were  due  on  the  exportation  only  of  the  said  three  commodi- 
ties, and  of  none  other :  which  men  styled  the  staple  commodi- 
ties of  the  kingdom,  because  they  were  obliged  to  be  brought 
to  those  ports  where  the  King's  staple  was,  in  order  to  be 
there  first  rated  and  then  exported.' 8 

The  staple  was  sometimes  situated  abroad,  as  at  Bruges 
or  Calais,  and  less  frequently  at  Antwerp,  St.  Omer,  or  Mid- 
dleburgh;  sometimes  at  a  number  of  English  towns.  Its 
history  is  involved  in  considerable  obscurity  until  the  reign 
of  Edward  III,  but  it  appears  to  have  been  generally  main- 
tained in  one  of  the  wealthy  cities  of  Flanders,  no  doubt 
because  most  of  the  English  wool  went  thither  to  be  made 
into  cloth.  It  is  true  that  we  find  Edward  III,  when  attempt- 
ing in  the  second  year  of  his  reign  to  establish  freedom  of 

1  Gross,  Gild  Merchant,  i.  142,  n.  7. 

2  Duke  in  his  Prolusiones   Historicae   suggests  that  the  word  staple 
originally  meant  padlock,  and  that  its  application  in  this  sense  arose 
from  the  fact  that  when  the  wares,  on  which  customs  were  payable,  were 
brought  to  the  seaports  for  exportation,  they  were  bonded  in  the  royal 
warehouses  under  lock  and  key,  until  such  time  as  they  could  be  sold 
and  the  duties  on  them  paid  from  the  proceeds;    that  in  course  of  time 
the  word  was  applied  to  the  goods  so  treated,  and,  lastly,  to  the  mer- 
chants who  dealt  in  the  goods.     But  this   seems  merely  fanciful.     See 
Skeat,  Etym.  Diet.  s.  v.  Staple,  and  Littr6,.  s.  v.  Etape. 

3  Comm.  i.  314,  315. 


\ 


30  V.     COMMERCIAL    LAW 

trade  according  to  the  tenor  of  the  Great  Charter,  declaring 
that  '  the  staples  beyond  the  sea  and  on  this  side,  ordained 
by  kings  in  times  past,'  should  cease.  l  But  in  the  seventeenth 
year  of  the  same  reign  the  merchants  petitioned  that  the 
staple  of  wools  might  be  removed  to  England,  whereby  would 
arise  the  following  benefits  :  the  price  of  wool  would  be  en- 
hanced; less  merchandise  would  be  lost  at  sea  by  English 
merchants  ;  less  bad  money  would  be  introduced  into  the 
kingdom;  the  king  would  have  405.  from  every  sack  at  the 
expense  of  aliens  only  ;  and  the  petitioners  might  receive  an 
assignment  of  one  half  the  customs  paid  by  aliens  in  discharge 
of  the  debts  due  to  them  from  the  Crown.  And,  again,  in  the 
following  year,  it  is  stated  '  that  the  staple  is  ill-situate  at 
Bruges.  Formerly  Italian  and  Spanish  buyers  were  numer- 
ous ;  now  the  great  cities  of  Flanders  will  not  open  the  staple 
to  strangers  beyond  Flanders.'  2  It  would,  therefore,  appear 
probable  that  such  English  staples  as  did  exist  were  of  little 
importance  until  the  great  Statute  of  Staple  of  1354)  3  tem- 
porarily abolished  their  foreign  rivals  and  brought  them  into 
prominence.  With  some  subsequent  minor  alterations,  this 
enactment  provided  for  the  regulation  of  the  system  so  long 
as  it  continued  an  active  force  in  English  history.  .  .  ,4 
Even  in  the  reign  of  Henry  VII,  the  Merchants  of  the 
Staple  were  a  body  of  no  small  importance,  although  the 
system  had  been  falling  into  decay  during  the  reigns  of  sev- 
eral of  the  first  Tudor's  predecessors.  The  process  of  dis- 
integration had  commenced  with  the  very  considerable  growth 
of  the  English  cloth  manufacture  in  the  reign  of  Henry  IV. 
In  1464  a  statute  of  the  fourth  year  of  Edward  IV  recites 
that  *  owing  to  subtil  bargains  made  in  buying  wools  before 
that  the  sheep,  that  bear  the  same,  be  shorn,'  the  clothnm- 
kers  of  the  realm  can  obtain  none,  '  to  the  great  grief  of  them 
which  have  been  accustomed  to  have  their  living  by  the  mean 
of  the  making  of  cloth,'  and  consequently  forbids  such  bar- 
gains for  the  future.  Many  other  Acts  of  the  same  reign 

»2  Edw.  III.  c.  9. 

2  Hall's  History  of  the  Customs,  i.  215. 
8  27  Edw.  III.  stat.  2. 

4  [Here  the  author,  in  six  pages  omitted,  discusses  the  shifting  of  the 
staple  towns  and  the  date  of  the  origin  of  the  Company.  —  EDS.} 


48.     BRODHURST:    THE    STAPLE  31 

show  a  solicitude  for  the  growth  of  the  home  manufacture, 
and  it  is  clear  that  the  policy  which  in  1338  had  forbidden 
the  wearing  of  cloth  made  out  of  England,  except  to  the 
royal  family,  and  had  invited,  with  the  assurance  of  protec- 
tion and  privileges,  '  all  cloth-workers  of  strange  lands  of 
whatsoever  country  they  might  be,'  had  resulted  in  making 
England  the  principal  centre  of  the  cloth  trade  by  the  middle 
of  the  fifteenth  century.  The  proverb  that '  riches  follow  the 
staple '  was  ceasing  to  be  appropriate.  In  Henry  VI's  reign 
the  revenue  from  staple  commodities  had  fallen  to  £12,000 
from  £60,000,  which  accrued  from  the  same  source  in  the 
time  of  Edward  III.  This  led  to  an  enactment  revoking  all 
licenses  to  trade  elsewhere  than  to  Calais  saving  those  granted 
to  the  Queen,  the  Duke  of  Suffolk,  the  Prior  of  Bridlington, 
and  three  others,  and  with  the  exception  also,  it  would  seem, 
of  merchants  passing  the  '  Streyhts  of  Marrock,'  no  doubt 
Gibraltar.  These  prohibitions,  however,  were  apparently 
ineffectual,  and  by  the  close  of  the  reign  the  Merchants  of 
the  Staple  had  reached  a  low  ebb  of  prosperity.  The  seas 
were  unsafe ;  disbanded  captains  received  their  rewards  at  the 
expense  of  the  stapler's  monopoly;  while  the  Merchant  Ad- 
venturers had  come  upon  the  scene,  and,  trading  under  more 
favourable  auspices  than  their  rivals  of  the  staple,  promised 
to  outstrip  them  in  the  race  for  commercial  supremacy.1 

During  the  reign  of  Henry  VIII  the  Merchants  of  the 
Staple  presented  a  petition  to  the  Crown  setting  out  their 
grievances.  They  pointed  out  that  they  had  from  time  imme- 
morial enjoyed  a  monopoly  of  traffic  in  the  staple  commodities 
of  the  kingdom,  and  reminded  Cardinal  Wolsey  that  they  had 
exercised  the  privilege  to  the  complete  satisfaction  of  the 
Government.  During  the  Wars  of  the  Roses  the  garrison  of 
Calais,  their  pay  being  eight  years  in  arrear,  had  risen  and 
compelled  the  merchants  to  satisfy  their  claims.  Later  had 
come  bad  seasons ;  a  murrain  had  broken  out  among  the 
flocks ;  wool  was  in  consequence  scarce,  and  production  limited 
to  wealthy  graziers,  who  held  back  for  advanced  prices.  The 
war  had  prevented  foreign  buyers  from  coming  to  Calais, 
the  French,  who  formerly  took  2,000  sacks  of  wool  yearly, 

1  Hall's  History  of  the  Customs,  i.  36. 


32  V.     COMMERCIAL    LAW 

now  accepting  only  400.  A  continual  loss  had  been  suffered 
on  exchange,  so  that  '  there  has  not  been  so  little  loste  as 
£100,000.'  The  consequence  was  that  the  members  were 
falling  off,  and  the  fellowship  was  in  process  of  decay.1  The 
sad  condition  of  the  Staplers  seems  to  have  met  with  little 
sympathy  from  the  Government,  although  we  do  find  that 
by  a  statute  of  the  fifth  year  of  Edward  VI  only  Merchants 
of  the  Staple  at  Calais  and  their  apprentices  were  to  be  al- 
lowed to  buy  wool,  and  that  the  Merchants  of  the  Staple  as 
well  as  the  Merchant  Adventurers  were  exempted  from  Eliz- 
abeth's Navigation  Act.2 

The  truth  was  that  the  system  had  by  this  time  outlived 
the  purposes  of  its  creation.  The  principal  feature  of  the 
economic  history  of  England  from  the  accession  of  the  Plan- 
tagenets  for  some  two  centuries  and  a  half  was  the  export 
trade  in  wool,  and  the  staple  system  was  a  useful,  almost  a 
necessary,  machinery  for  the  direction  of  that  trade.  Gradu- 
ally, as  the  manufacture  of  cloth  sprang  up,  and  a  trade  in 
that  commodity  began  to  take  the  place  formerly  held  by  raw 
wool,  the  usefulness  of  the  system  declined ;  and  the  Staplers, 
with  their  anxiety  to  maintain  their  monopoly  on  the  lines 
of  the  most  rigid  conservatism,  ended  by  being  a  clog  on  the 
foreign  trade  of  England,  with  which  the  ideas  of  the  time 
were  out  of  harmony.  The  loss  of  Calais  in  1558  must  prac- 
tically have  given  the  Merchants  of  the  Staple  their  death- 
blow ;  but  if  anything  further  was  required  to  complete  the 
downfall,  it  was  administered  by  an  Act  of  1660,  which  totally 
prohibited  the  export  of  wool,  thereby  producing  such  a  glut 
of  the  material  in  the  English  markets  that  it  had  to  be  fol- 
lowed by  the  curious  enactment  which  for  nearly  150  years 
compelled  every  one  to  be  buried  in  a  woollen  shroud. 

Perhaps  as  compensation  for  this  blow  Charles  II,  in  1669, 
granted  a  charter  of  incorporation  and  a  common  seal  to  the 
Staplers  under  the  title  of  '  The  Mayor,  Constables,  and 
Company  of  Merchants  of  the  Staple  of  England.'  Since  the 
conferment  of  this  dignity  the  company  has  withdrawn  itself 
from  the  fierce  glare  of  public  life,  although  it  emerged 

1  Hall's  History  of  the  Customs,  i.  37-39. 

2  Cunningham's  English  Industry  and  Commerce,  ii.  21. 


48.     BRODHURST:    THE    STAPLE  33 

therefrom  in  the  year  1887,  and  successfully  maintained  an 
action  against  the  Bank  of  England.  *  The  only  other  vestige 
of  its  former  prosperity  is  Staple  Inn  in  Holborn,  near  to 
which,  tradition  has  it,  was  once  the  Wool  Market  of  London, 
and  at  which  the  dealers  in  wool  had  their  quarters.  More 
fortunate  than  they,  the  Society  of  Merchant  Adventurers 
were,  we  notice,  represented  by  their  Master  upon  the  Queen's 
visit  to  Bristol  in  November  last.  Yet  they,  too,  are  now 
little  but  a  voice,  for  the  merchant  princes  of  the  Tudor  age 
have  fallen  from  their  high  estate,  and  their  place  knoweth 
them  no  more. 

1 21  Q.  B.  D.  160. 


49.  CONTRIBUTIONS  OF  THE  LAW  MERCHANT 
TO  THE  COMMON  LAW  1 

BY  FRANCIS  MARION  BURDICK  2 

IN  a  recent  book  of  unusual  originality,  we  find  the  follow- 
ing statement :  "  The  phrase  '  law  merchant,'  like  many 
another,  is  uncritically  employed  in  handy  explication  of 
seeming  anomalies.  As  objections  to  the  Mosaic  cosmogony, 
presented  by  the  existence  of  fossils,  were  allayed  by  con- 
venient reference  to  omnipotence,  so  perplexing  questions 
relating  to  negotiable  instruments  are  waived  by  unthinking 
allusion  to  the  '  law  merchant.'  Omnipotence  and  law  mer- 
chant work  their  arbitrary  will,  and  are  irreducible  and  dis- 
tracting." 3  A  little  later  in  the  volume,  the  author  writes : 
"  As  a  matter  of  fact,  and  not  merely  of  phrase,  may  we  not 
even  ask  whether  there  is  a  law  of  merchants,  in  any  other 
sense  than  there  is  a  law  of  financiers  or  a  law  of  tailors? 
Frequent  use  of  the  word  has  almost  produced  the  impres- 
sion that  as  there  was  a  civil  law  and  a  canon  law,  so  also 
there  was  somewhere  a  '  law  merchant,'  of  very  peculiar  au- 
thority and  sanctity ;  about  which,  however,  it  is  now  quite 
futile  to  inquire  and  presumptuous  to  argue." 

Mr.  Ewart  does  not  claim  that  these  views  accord  with 

1  This  Essay  was  first  published  in  the  Columbia  Law  Review,  vol.  II, 
1902,  pp.  470-485,  under  the  title  "What  is  the  Law  Merchant?" 

2  Dwight  professor  of  law  in  Columbia  University  since  1891.     Ham- 
ilton College,  A.  B.  1869,  LL.  B.  1872,  LL.  D.  1895;   professor  of  law  and 
history  in   Hamilton   College,   1882-1887;    professor   of   law   in   Cornell 
University,  1887-1891. 

Other  Publications:  Cases  on  Torts,  1895;  Cases  on  Partnership,  1898; 
Law  of  Partnership,  1899;  Cases  on  Sales,  1901;  Law  of  Sales,  1901; 
Essentials  of  Business  Law,  1902;  Law  of  Torts,  1905;  editor  of  the 
department  of  Law  in  Johnson's  Universal  Cyclopedia. 

*  Ewart  on  Estoppel,  370. 


49.  BURDICK:  WHAT  IS  THE  LAW  MERCHANT?  35 

the  opinions  which  pervade  judicial  decisions  and  standard 
treatises.  On  the  contrary,  he  frankly  admits  that  judges 
and  writers  of  the  greatest  eminence  and  learning  have  held 
views  diametrically  opposed  to  his.  The  object  of  the  pres- 
ent article  is  to  inquire  whether  The  Law  Merchant  ought  to 
be  dismissed  as  a  mere  phrase. 

Law  Merchant  Procedure 

It  is  quite  certain  that,  as  early  as  the  middle  of  the  thir- 
teenth century,  cases  between  merchants  were  conducted  ac- 
cording to  a  procedure  quite  unlike  that  of  common  law 
courts.  Bracton  tells  us  that  the  summons  in  such  cases  need 
not  be  served  fifteen  days  before  the  defendant  was  bound  to 
answer,  as  it  had  to  be  in  common  law  actions.  His  language 
is :  "  Likewise,  on  account  of  persons  who  ought  to  have 
speedy  justice,  such  as  merchants,  to  whom  speedy  justice 
is  administered  in  courts  of  pepoudrous,  .  .  .  the  time  of 
summons  is  reduced."1  Again,  in  actions  against  merchants 
"  the  solemn  order  of  attachments  ought  not  to  be  observed," 
Bracton  declares,  "  on  account  of  the  privilege  and  favor  of 
merchants."  2  Nor  are  these  the  only  respects  in  which  the 
procedure  of  the  ancient  law  merchant  differed  from  that  of 
the  common  law.  In  an  action  of  debt,  the  common  law  per- 
mitted the  defendant  to  wage  his  law,  that  is  to  deny  the 
debt  by  his  own  oath,  and  by  the  oaths  of  eleven  neighbors, 
or  compurgators,  who  swore  that  they  believed  his  denial  was 
the  truth.3  This  was  not  allowed,  however,  by  the  law  mer- 
chant, in  case  the  plaintiff  supported  his  claim  by  a  tally 
and  two  or  more  witnesses,4  or  in  case  the  action  was  upon  a 
contract  between  merchant  and  merchant  beyond  the  seas.5 

The  very  name  of  the  earliest  courts  in  which  mercantile 
cases  were  tried  indicates  the  character  of  their  procedure. 
They  are  called  "  pepoudrous,"  says  Coke,  "  because  that  for 
contracts  and  injuries  done  concerning  the  fair  or  market, 

1  Bracton,  De  Legibus  Anglicae,  1.  v.  f.  334  a. 
8  Ibid.  1.  vi,  444  a. 

3  Pollock   and   Maitland's   History  of   English   Law,   Vol.   2,  p.    212. 
Select  Civil  Pleas,  pi.  146  (1203). 
*Clermont's  Fortescue,  121,  note. 
8 Ibid.  120. 


36  P.     COMMERCIAL    LAW 

there  shall  be  as  speedy  justice  done  for  the  advancement  of 
trade  and  traffick,  as  the  dust  can  fall  from  the  foot,  the 
proceedings  there  being  de  hora  in  horam."  And  Black- 
stone  declares :  "  The  reason  of  their  original  institution 
seems  to  have  been  to  do  justice  expeditiously  among  the 
variety  of  persons  that  resort  from  distant  places  to  a  fair 
or  market ;  since  it  is  probable  that  no  inferior  court  might 
be  able  to  serve  its  process,  or  execute  its  judgments,  on  both, 
or  perhaps  either,  of  the  parties ;  and  therefore,  unless  these 
courts  had  been  erected,  the  complainant  must  have  resorted, 
even  in  the  first  instance,  to  some  superior  judicature."2 

The  expedition  of  these  courts  was  in  striking  contrast 
with  the  slow  and  stately  procedure  of  the  common  law  tri- 
bunals, which  were  not  always  open  to  suitors.  Their  pro- 
ceedings, even  during  term  time,  were  not  from  hour  to  hour 
throughout  the  day.  They  took  plenty  of  time  to  deliberate. 
Sir  John  Fortescue,  writing  about  the  middle  of  the  fifteenth 
century,  gives  this  account  of  them :  "  You  are  to  know 
further,  that  the  judges  of  England  do  not  sit  in  the  King's 
courts  above  three  hours  in  the  day,  that  is  from  eight  in  the 
morning  till  eleven.  The  courts  are  not  open  in  the  after- 
noon. The  suitors  of  the  court  betake  themselves  to  the 
pervise,  and  other  places,  to  advise  with  the  Sergeants  at 
Law,  and  other  their  counsel,  about  their  affairs.  The  judges 
when  they  have  taken  their  refreshments  spend  the  rest  of 
the  day  in  the  study  of  the  laws,  reading  the  Holy  Scriptures, 
and  other  innocent  amusements  at  their  pleasure.  It  seems 
rather  a  life  of  contemplation  than  of  action."  3 

1  Coke,  Fourth  Institute  272. 

2  3  Blackstone's  Commentaries  33.     Blackstone  rejects  the  etymology 
of  pepoudrous  given  by  Coke,  and  prefers  that  suggested  by  Barrington, 
in  his  Observations   on  the  Statutes,   who  derives   the  term   from  pied 
puldreaux,   which,  in   old   French,   signifies    a   pedlar.     "The   court   of 
Pipowder  "  (as  Barrington  spells  the  word,)  is  "  the  court  of  such  petty 
chapmen,"  or  pedlars  and  "low  tradesmen"  as  resort  to  fairs  and  mar- 
kets.    See  Barrington's  Observations,   (2d  ed.  1766)  321,  322.     To  Bar- 
rington and  Blackstone,  courts  pepoudrous  were  only  a  name.     It  was 
easy  for  them  to  picture  these  tribunals  as  of  small  consequence,  and  as 
dealing  with  trifling  disputes.     In  Coke's  time,  they  held  an  important 
place  in  the  judicial  system.    Two  centuries  earlier,  they  had  so  extended 
their  jurisdiction  by  an  ingenious  fiction  as  to  call  forth  an  act  of  par- 
liament reducing  them  to  their  original  limits.     17  Ed.  iv.  Ch.  2. 

3  Sir  Henry  Spellman  offers  a  very  different  and  less  complimentary 
explanation  of  the  judicial  habit  of  limiting  sittings  to   the  forenoon. 


49.  BURDICK:  WHAT  IS  THE  LAW  MERCHANT?  37 

Merchants  were  men  of  action,  and  the  contemplative  habit 
of  English  common  law  judges  did  not  fall  in  well  with  their 
necessities.  They  insisted  upon  having  not  only  justice  but 
speedy  justice.  This  was  secured  to  them  in  a  measure,  as 
we  have  seen,  by  the  institution  of  a  court  pepoudrous  as  an 
incident  of  every  fair  and  market  throughout  England.  The 
statute  of  the  Staple1  provided  additional  courts  for  the  re- 
lief of  merchants.  One  of  its  chief  objects  was  declared  to 
be,  "  to  give  courage  to  merchant  strangers  to  come  with  their 
wares  and  merchandise  into  the  realm."2  It  recognized  the 
fact  "  that  merchants  may  not  often  long  tarry  in  one  place 
for  levying  of  their  merchandises,"  and  accordingly  promised 
"  that  speedy  right  be  to  them  done  from  day  to  day,  and 
from  hour  to  hour,  according  to  the  laws  used  in  such  staples 
before  this  time  holden  elsewhere  at  all  times."  3  It  provided 
for  the  election  of  a  mayor  and  constable  of  the  staple,  by 
the  merchants  of  each  staple  town,  and  gave  to  such  mayor 
complete  jurisdiction  over  all  mercantile  transactions.4  In 
order  to  secure  these  mercantile  courts  from  encroachments 
on  the  part  of  the  common  law  tribunals,  the  statute  declared 
that,  "  In  case  our  bench  or  common  bench,  or  justices  in  eyre 
or  justices  of  assize,  or  the  place  of  the  marshalsea,  or  any 
other  justices  come  to  the  places  where  the  said  staples  be, 
the  said  justices  nor  stewards,  nor  marshals,  nor  of  other 
the  said  place  shall  have  any  cognizance  there  of  that  thing, 

This  is  his  language.  "  It  is  now  to  be  considered  why  high  courts  of 
justice  sit  not  in  the  afternoon  .  .  .  Our  ancestors  and  other  northern 
nations  being  more  prone  to  distemper  and  excess  of  diet  used  the  fore- 
noon only,  lest  repletion  should  bring  upon  them  drowsiness  and  oppres- 
sion of  spirits.  To  confess  the  truth  our  Saxons  were  immeasureably 
given  to  drunkenness."  He  adds  that  judges  do  sit  from  morning  to 
evening,  in  great  causes,  but  without  dinner  or  intermission,  for  "being 
risen  and  dining,  they  may  not  meet  again."  It  is  because  of  this  ten- 
dency to  drunkenness,  he  thinks,  that  jurors  were  prohibited  from  having 
meat,  drink,  fire  or  candle  light  "till  they  agreed  of  their  verdict."  — 
Spellman's  The  Original  Terms  (1614),  Sec.  V.  Chap.  1. 

X27  Ed.  III.  Statute  2  (1353:)  This  statute  enacted  "That  the  staple 
of  wools,  leather,  woodfels  and  lead  shall  be  perpetually  holden  at  the 
places  underwritten,  that  is  to  say,  for  England,  at  Newcastle  upon 
Tine,  York,  Lincoln,  Norwich,  Westminster,  Canterbury,  Chichester, 
Winchester,  Exeter  and  Bristol;  for  Wales,  at  Kaermerdyn;  and  for 
Ireland  at  Devylen,  Waterford,  Cork  and  Drogheda." 

a  Ibid.  ch.  2. 

8  Ibid.  ch.  19,  §  2. 

4  Ibid.  ch.  21  and  ch:  8. 


38  V.     COMMERCIAL    LAW 

which  pertaineth  to  the  cognizance  of  the  mayor  and  minis- 
ters of  the  staple."1 

That  the  procedure  in  these  statutory  courts  of  the  staple 
towns  was  not  that  of  the  common  law,  but  was  that  of  the 
law  merchant,  is  expressly  stated  in  the  statute.  Chapter  21 
required  the  mayor  of  the  staple  to  have  "  knowledge  of  the 
law  merchant,"  and  "  to  do  right  to  every  man  after  the 
law  aforesaid."  Chapter  8  provided  "  that  all  merchants 
coming  to  the  staple  shall  be  ruled  by  the  law  merchant,  of 
all  things  touching  the  staple,  and  not  by  the  common  law 
of  the  land,  nor  by  the  usage  of  cities,  boroughs  or  other 
towns ;  "  although  it  gave  merchants  the  right  to  sue  before 
the  justices  of  the  common  law  if  they  preferred  to  do  so. 
The  language  of  chapter  20  is  very  significant :  "  Item, 
because  we  have  taken  all  merchants  strangers  in  our  said 
realm  and  lands  into  our  special  protection,  and  moreover 
granted  to  do  them  speedy  remedy  of  their  grievances,  if  any 
be  to  them  done,  we  have  ordained  and  established,  That  if 
any  outrage  or  grievance  be  done  to  them  in  the  country 
out  of  the  staple,  the  justices  of  the  place  where  such  out- 
rages shall  be  done  shall  do  speedy  justice  to  them  after 
the  law  merchant  from  day  to  day  and  from  hour  to  hour, 
without  sparing  any  man  or  to  drive  them  to  sue  at  the 
common  law." 

The  procedure,  then,  in  the  statutory  courts  of  the  staple 
was  that  of  the  law  merchant,  and  was  very  different  from 
that  of  the  common  law.  It  was  a  procedure  with  which  mer- 
chants were  familiar.  The  statute  does  not  describe  it,  but 
assumes  that  its  peculiarities  are  a  matter  of  common  knowl- 
edge. It  was  the  procedure  which  was  then  in  use  in  such 
staples,  or  markets,  "  holden  elsewhere."  2  It  was  summary, 
swift  and  sure.  It  was  the  procedure  of  courts  pepoudrous. 
It  was  the  procedure  of  "  the  Law  Merchant  which  prevailed 
in  similar  form  throughout  Christendom." !  Whenever  a 
merchant  was  a  suitor  in  one  of  these  courts,  an  ancient  writer 
assures  us,  he  was  "  in  loco  proprio,  as  the  fish  in  the  water, 
where  he  understandeth  himself  by  the  custom  of  merchants, 

1  Ibid.  ch.  5.  2  Ibid.  ch.  19,  §  2. 

*  Cunningham's  Western  Civilization,  Vol.  2,  p.  95. 


49.  BURDICK:  WHAT  IS  THE  LAW  MERCHANT?   39 

according  to  which  merchants'  questions  and  controversies 
are  determined."1 

The  Substantive  Law  Merchant 

But  the  ancient  law  merchant  was  something  more  than 
a  system  of  procedure,  devised  to  secure  the  speedy  settlement 
of  merchants'  controversies.  It  was  a  body  of  substantive 
law.  It  is  referred  to  as  such  in  several  of  the  extracts  given 
above  from  the  statute  of  the  staple.  In  chapter  eight,  as 
we  have  seen,  it  is  contrasted  with  "  the  common  law  of  the 
land,"  and  it  was  provided  that  pleas  concerning  mercantile 
matters  should  be  sued  "  before  the  justices  of  the  staple 
by  the  law  of  the  staple,"  (which  had  previously  been  defined 
as  the  law  merchant,)  while  "  pleas  of  land  and  of  freehold 
shall  be  at  the  common  law."  2  It  was  recognized  as  a  dis- 
tinct body  of  substantive  law  in  a  charter  of  Henry  III,3 
which  recites  that  "  pleas  of  merchandise  are  wont  to  be 
decided  by  law  merchant  in  the  boroughs  and  fairs."  For- 
tescue  contrasts  it  with  the  common  law,  when  he  declares 
that  "  in  the  courts  of  certain  liberties  in  England,  where 
they  proceed  by  the  law  merchant,  touching  contracts  be- 
tween merchant  and  merchant  beyond  seas,  the  proof  is  by 
witnesses  only."  4 

Coke  repeatedly  refers  to  the  lex  mercatoria  as  a  body 
of  substantive  law.  In  his  notes  to  §  3,  of  the  First  Institute, 
he  says,  "  There  be  divers  laws  within  the  realm  of  England," 
which  he  proceeds  to  name.  The  fourth  class  of  these  laws 
is  "  The  common  law  of  England,"  while  the  twelfth  is  "  Lex 
Mercatoria,  merchant,  &c."  In  the  fourth  institute,  he 
writes :  "  The  Court  of  the  Mayor  of  the  Staple  is  guided 
by  the  law  merchant,  which  is  the  law  of  the  staple.  .  .  . 
This  Court  (though  it  was  far  more  ancient)  is  strengthened 
and  warranted  by  act  of  parliament. 5  ...  It  was  often- 

1Malynes»  Lex  Mercatoria,  Chap.  XVI.  p.  308  (1622). 

8  27  Ed.  Ill,  St.  2,  ch.  8,  §  7. 

8  Norton's  History  of  London,  Book  II,  Chap.  XIX.  The  ninth  char- 
ter of  Henry  III,  granted  1268. 

*  Clermont's  Fortescue,  120. 

"The  author  refers  to  27  Ed.  Ill  St.  2  and  quotes  at  length  from 
ch.  21. 


40  V.     COMMERCIAL    LAW 

times  kept  at  Callice,  and  sometimes  at  Bridges  in  Flanders, 
and  at  Antwerpe,  Middleburgh,  &c.,  and  therefore  it  was 
necessary  that  this  Court  should  be  governed  by  the  law 
merchant."  l 

Malynes,  in  his  "  Lex  Mercatoria  or  Ancient  Law  Mer- 
chant,"2 writes  for  the  man  of  business  rather  than  for  the 
lawyer,  but  he  has  much  to  say  of  the  law  merchant.  In 
his  "  Epistle  Dedicatory  "  to  King  James,  he  declares  the 
"  Law  Merchant  hath  always  been  found  semper  eadem;  that 
is,  constant  and  permanent,  without  abrogation,  according 
to  the  most  ancient  customs,  concurring  with  the  Law  of 
Nations  in  all  Countreys."  He  informs  "  The  Courteous 
Reader,"  in  his  preface,  that  he  "  intitled  the  book  according 
to  the  ancient  name  of  Lex  Mercatoria,  and  not  Jus  Merca- 
torium ;  because  it  is  a  customary  law,  approved  by  the 
authority  of  all  kingdoms  &  commonwealths,  and  not  a  law 
established  by  the  soveraignty  of  any  Prince,  either  in  the 
first  foundation,  or  by  continuance  of  time."  Earlier  in  the 
preface,  he  writes,  "  Reason  requireth  a  law  not  too  cruel  in 
her  frowns,  nor  too  partial  in  her  favors.  Neither  of  these 
defects  are  incident  to  the  Law  Merchant,  because  the  same 
doth  properly  consist  of  the  custom  of  merchants,  in  the 
course  of  traffick,  and  is  approved  by  all  Nations,  according 
to  the  definition  of  Cicero,  Vera  lex  est  recta  Ratio  Natura 
congruens,  diffusa  in  omnes  const  arts  sempiternal  Later,  he 
refers  to  the  Lex  Mercatoria  as  "  made  and  framed  of  the 
Merchants'  Customs  and  the  Sea  Laws."  Several  chapters 
of  the  book  are  devoted  to  an  account  (rather  desultory  it 
must  be  admitted)  of  the  various  methods  for  the  determina- 
tion of  merchants'  causes  and  controversies.  Seafaring 
causes,  as  he  styles  them,  are  determined  in  the  Admiralty 
Court.  Other  controversies  may  be  decided  either  by  arbi- 
trators chosen  by  the  parties,  or  by  merchants'  courts,  or  by 
the  chancery,  or  by  the  common  law  courts.  Even  when 
actions  are  brought  in  the  courts  of  common  law  by  mer- 
chants, he  declares,  "  That  the  Law  Merchant  is  predominant 
and  over-ruling,  for  all  Nations  do  frame  and  direct  their 

1  Coke's  Fourth  Institute,  Chap.  XLVI. 

2  The  first  edition  was  published  in  1622. 


49.  BURDICK:  WHAT  IS  THE  LAW  MERCHANT?   41 

judgments  thereafter,  giving  place  to  the  antiquity  of  Mer- 
chants' Customs,  which  maketh  properly  their  Law,  now  by 
me  methodically  described  in  this  Book."  1 

Of  the  common  law,  in  its  specific  sense,  that  is  of  the 
system  of  legal  rules  and  procedure  administered  in  the  com- 
mon law  courts,  the  author  seems  to  have  had  a  poor  opinion. 
Among  other  flings  at  it  is  this  :  "  In  chancery  every  man 
is  able  by  the  light  of  nature  to  foresee  the  end  of  his  cause, 
and  to  give  himself  a  reason  therefor,  and  is  therefore  termed 
a  cause;  whereas  at  the  common  law,  the  Clyent's  matter  is 
termed  a  case,  according  to  the  word  Casus,  which  is  acci- 
dental; for  the  Party  doth  hardly  know  a  reason  why  it  is 
by  Law  adjudged  with  or  against  him."  After  thus  paying 
his  compliments  to  the  technical,  dilatory  and  uncertain 
common  law,  he  proceeds  :  "  Merchants'  causes  are  properly 
to  be  determined  by  the  Chancery,  and  ought  to  be  done 
with  great  expedition  ;  .  .  .  for  the  customs  of  merchants 
are  preserved  chiefly  by  the  said  court,  and  above  all  things 
Merchants'  affairs  in  controversie  ought  with  all  brevity  to 
be  determined,  to  avoid  interruption  of  traffick,  which  is  the 
cause  that  the  Mayor  of  the  Staple  is  authorized  by  several 
acts  of  parliament  to  end  the  same,  and  detain  the  same  before 
him,  without  dismission  of  the  common  law."  2  In  a  later 
chapter  on  "  The  Ancient  Government  of  the  Staple,"  the 
author  says  that  "  the  laws  and  ordinances  made  by  the  said 
merchants  "  in  the  staple  towns  "  were  called  staple  laws,"  3 
which,  as  we  have  seen,  is  but  another  name  for  the  law  mer- 
chant. 

The  controversy  between  the  admiralty  and  the  common 
law  courts  for  jurisdiction,  which  culminated  during  the 
chief  justiceship  of  Lord  Coke,  elicited  several  publications 
in  which  the  law  merchant  plays  a  prominent  part.  Perhaps, 
the  most  important  of  these  works  are  Godolphin's  "  View  of 
Admiralty  Jurisdiction,"4  Zouch's  "  Jurisdiction  of  the  Ad- 
miralty," 5  and  Prynne's  "  Animadversions."  6 

Godolphin  quotes  with  approval  the  statement  of  Sir  John 

1  Lex  Mercatoria,  Chap.  XIV.         2  Lex  Mercatoria,  p.  303. 
*Ibid.  p.  337.          *  Published  1661.     See  pp.  126,  127. 


6  Prepared  for  publication  prior  to  1663,  but  first  published  in  1686. 
lished  i 


"Published  in  1669. 


42  V.     COMMERCIAL    LAW 

Davies  1  that  the  Law  Merchant  as  a  branch  of  the  general 
law  of  Nations  has  "  been  ever  admitted,  had,  received  by 
the  Kings  and  people  of  England,  in  causes  concerning  mer- 
chants and  merchandizes  and  so  is  become  the  law  of  the  land 
in  these  cases."  He  looks  upon  the  law  merchant  as  "  a  law 
of  England,  though  not  the  law  of  England."  Upon  this 
point,  he  agrees  with  Lord  Coke  and  treats  the  common  law 
as  well  as  the  law  merchant  as  two  distinct  but  constituent 
elements  of  English  jurisprudence. 

Zouch  calls  attention  to  the  fact  that  "  Sir  Edward  Coke, 
in  his  comment  upon  Littleton,  mentions  the  Law  Merchant 
as  a  Law  distinct  from  the  Common  Law  of  England,"  add- 
ing, "  And  so  doth  Mr.  Selden  mention  it  in  his  Notes  upon 
Fortescue."  He  then  quotes  at  length  from  Sir  John  Davies' 
"  Manuscript  Tract  touching  Impositions," 2  laying  especial 
stress  upon  the  writer's  views,  probably  because  of  his  emi- 
nence as  a  common  lawyer  and  of  the  friendly  personal  rela- 
tions which  he  had  sustained  with  Coke.  According  to  the 
writer,  "  Both  the  common  law  and  Statute  laws  of  England 
take  notice  of  the  law  merchant,  and  do  leave  the  causes  of 
merchants  to  be  decided  by  the  rules  of  that  law ;  which  Law 
Merchant,  as  it  is  a  part  of  the  Law  of  Nature  and  Nations, 
is  universal,  and  one  and  the  same  in  all  countries  of  the 
world."  "  Whereby,"  remarks  Dr.  Zouch, 3  "  It  is  manifest 
that  the  causes  concerning  merchants  are  not  now  to  be  de- 
cided by  the  peculiar  and  ordinary  laws  of  every  country, 
but  by  the  general  laws  of  Nature  and  Nations."  Sir  John 
Davies  is  quoted  further  as  saying :  "  That  until  he  under- 
stood the  difference  betwixt  the  Law  Merchant  and  the 
Common  Law  of  England,  he  did  not  a  little  marvel,  that 
England,  entertaining  traffick  with  all  nations  of  the  world, 
having  so  many  ports  and  so  much  good  shipping,  the  King 
of  England  being  also  Lord  of  the  Sea,  what  should  be  the 
cause  that,  in  the  books  of  the  Common  Law  of  England  there 
are  to  be  found  so  few  cases  concerning  merchants  or  ships : 

1  Davies  on  Impositions,  written  about  1600  and  first  published  1656. 

3  As  Dr.  Zouch  refers  to  this  work  as  a  "  manuscript  tract,"  it  would 
appear  that  his  own  treatise  must  have  been  written  before  the  publica- 
tion of  "  The  Impositions  "  in  1656. 

3  The  Jurisdiction  of  Admiralty,  89. 


49.  BURDICK:  WHAT  IS  THE  LAW  MERCHANT?   43 

But  now.  the  reason  thereof  was  apparent,  for  that  the  Com- 
mon Law  of  the  Land  did  leave  those  Cases  to  be  ruled  by 
another  Law,  namely,  the  Law  Merchant,  which  is  a  branch 
of  the  Law  of  Nations." 

Prynne  points  to  this  absence  of  "  precedents  of  suits 
between  merchants  and  mariners  in  the  common  law  courts  " 
as  conclusive  evidence  that  those  courts  had  not  formerly 
claimed  jurisdiction  of  them,  and  declares  that  actions  for 
breach  of  maritime  contracts  had  always  been  "  brought  in 
the  Admiral's  Court,  and  there  tried,  judged  in  a  summary 
way,  according  to  the  laws  of  merchants  and  Oleron,  not 
in  the  King's  Courts  at  Westminster,  who  proceeded  only 
by  the  rules  of  the  Common  Law."  1 

The  Law  of  Merchants  a  True  Body  of  Law 

It  is  apparent,  we  submit,  from  the  foregoing  authorities, 
that  for  several  centuries  there  was  a  true  body  of  law  in 
England  which  was  known  as  the  law  merchant.  It  was  as 
distinct  from  the  law  administered  by  the  common  law  courts, 
as  was  the  civil  or  the  canon  law.  It  was  a  part  of  the  un- 
written law  of  the  realm,  although  its  existence  and  its  en- 
forcement had  been  recognized  and  provided  for  by  statutes. 
Until  the  Seventeenth  Century,  it  was  rarely  referred  to  in 
common  law  tribunals.  Courts  pepoudrous,  staple  courts  or 
courts  of  merchants,  the  admiral's  court  and  the  Chancery 
dealt  with  the  cases  which  were  subject  to  its  rules.  During 
the  seventeenth  century  staple  courts  expired  2  with  the  decay 
of  the  staple  trade ;  and  the  courts  pepoudrous  3  lost  much 

*Prynne's  Animadversions,  83.  On  pp.  95,  96,  he  speaks  of  the  Ad- 
miral's Court  as  proceeding  according  to  the  "  law  of  merchants,  Oleron 
and  the  civil  law,"  and  on  p.  102  he  refers  to  the  "  civil  law,  of  merchants 
and  Oleron." 

2  Coke  intimates  that  the  only  staple  court  in  existence  when  he  wrote 
his  Fourth  Institute  was  that  "  holden  at  the  Wool  Staple  at  Westmin- 
ster."    Fourth  Institute,  p.  237,  Prynne  says  "the  Court  of  the  Mayor 
of  the  Staple  is  now  expired,"  Animadversions,  p.  175. 

3  It  is  rather  curious  that  these  courts  gained  a  new  lease  of  life  in, 
some  of  the  American  Colonies.     In  1692  New  York  passed  an  act  "  for 
the  Setling  of  Affaires  and  Marquets  in  each  respective  City  and  County 
throughout  the  Province,"  which  provided  for  a  "Governor  or  Ruler" 
of  each  fair  with  power  "To  have  and  to  hold  a  court  of  Pypowder 
together  with  all  Libertys  and  free  customs  to  such  appertaining,"  and 


44  V.     COMMERCIAL    LAW 

of  their  importance.  Their  decisions  were  subject  to  review 
by  common  law  judges,  who  did  not  hesitate  to  pursue 
towards  them  the  policy  which  they  had  adopted  towards 
the  admiralty,  of  limiting  their  jurisdiction  within  the  nar- 
rowest bounds,  and  of  enticing  or  coercing  their  suitors  into 
the  courts  of  common  law. 

While  the  staple  courts  and  kindred  tribunals  were  dying 
out,  mercantile  cases  were  necessarily  finding  their  way  into 
the  common  law  courts.  How  should  the  common  law  judges 
deal  with  them?  These  judges  were  not  selected,  as  the 
mayors  of  the  staple  had  been  chosen,  because  of  their  knowl- 
edge of  the  law  merchant.  Nor  were  the  common  law  jurors 
taken  from  the  commonalty  of  merchants.  It  became  neces- 
sary, therefore,  in  a  case  involving  the  law  merchant,  to  prove 
what  the  rule  of  that  law  applicable  to  the  case  was,  unless, 
indeed,  the  rule  were  one  of  such  common  application,  that 
the  judge  would  take  judicial  cognizance  of  it.  In  other 
words,  the  law  merchant  "  was  proved  as  foreign  law  now  is. 
It  was  a  question  of  fact.  Merchants  spoke  to  the  existence 
of  their  customs  as  foreign  lawyers  speak  to  the  existence  of 
laws  abroad.  When  so  proved,  a  custom  was  part  of  the 
law  of  the  land." l  This  condition  of  things  existed  for  about 
a  century  and  a  half  —  from  the  appointment  of  Coke  as 
Lord  Chief  Justice  in  1606  to  the  accession  of  Lord  Mans- 
field in  1756. 2 

The  Law  Merchant  a  Body  of  Trade  Customs 

During  this  second  period  in  the  development  of  the  law 
merchant,  the  term  loses  much  of  the  definiteness  which  char- 
acterized it  during  the  first  period.  It  is  not  employed  to 
designate  a  well-known  body  of  legal  rules  which  are  admin- 

to  hear  "  from  day  to  day  and  hour  to  hour,  from  time  to  time  all  Occa- 
sions plaints  and  pleas  of  a  Court  of  Pypowders  together  with  summons, 
attachments,  arrests,  issues,  fines,  redemptions  and  commodyties  and 
other  rights  whatsoever  to  the  same  Courts  of  Pypowder  any  way  apper- 
taining." In  1773,  these  provisions  were  extended  to  new  counties  and 
to  additional  fairs  and  markets  authorized  in  newly  settled  parts  of  the 
colony.  The  Colonial  Laws  of  New  York,  Vol.  1,  p.  296;  Vol.  5,  p.  589. 

1  Macdonell's  Introduction  to  Smith's  Mercantile  Law.     2d  ed.,  Ixxxiii. 

*Ibid.    Scrutton,  Elements  of  Mercantile  Law,  Chap.  I. 


49.  BURDICK:  WHAT  IS  THE  LAW  MERCHANT?   45 

istered  in  certain  courts,  but  rather  those  trade  usages  whose 
existence  had  been  established  to  the  satisfaction  of  the  regu- 
lar tribunals,  and  which  those  tribunals  were  willing  to  en- 
force in  cases  growing  out  of  mercantile  disputes.  Of  this 
period  Mr.  Scrutton  says:1  "  And  as  the  Law  Merchant  was 
considered  as  custom,  it  was  the  habit  to  leave  the  custom  and 
the  facts  to  the  jury  without  any  directions  in  point  of  law, 
with  a  result  that  cases  were  rarely  reported  as  laying  down 
any  particular  rule,  because  it  was  almost  impossible  to  sepa- 
rate the  custom  from  the  facts ; 2  as  a  result  little  was  done 
towards  building  up  any  system  of  Mercantile  Law  in  Eng- 
land." 

The  Law  Merchant  as  the  Law  of  All  Nations 

Lord  Mansfield  was  dissatisfied  with  this  condition  of  the 
law  and  devoted  his  great  abilities  to  its  improvement.  He 
was  not  an  intense  partisan  of  the  common  law  like  Coke,  nor 
did  he  show  Holt's  hostility  to  the  innovations  of  Lombard 
Street.  On  the  other  hand,  he  was  a  thorough  student  of  the 
civil  law,  was  familiar  with  the  writings  of  foreign  jurists 
and  was  in  hearty  sympathy  with  the  desire  of  merchants  and 
bankers  for  the  judicial  recognition  of  their  customs  and 
usages.  We  are  told 3  that  "  he  reared  a  body  of  special 
jurymen  at  Guildhall,  who  were  generally  retained  in  all 
commercial  cases  to  be  tried  there.  He  was  on  terms  of 
familiar  intercourse  with  them,  not  only  conversing  freely 
with  them,  but  inviting  them  to  dine  with  him.  From  them 
he  learned  the  usages  of  trade,  and  in  return  he  took  great 
pains  in  explaining  to  them  the  principles  of  jurisprudence 
by  which  they  were  to  be  guided."  4 

1  Scrutton,  Elements  of  Met1  cantile  Law,  Chap.  I. 

2  An  excellent  illustration  of  this  is  afforded  by  the  Bank  of  England 
v.  Newman,  Ld.  Raymond,  442  (1699).     Lord  Holt  told  the  jury  that 
when  a  person  sold  a  note  payable  to  bearer,  without  indorsing  it,  he  did 
not  become  liable  to  the  buyer;   but  the  jury  found  a  verdict  against  the 
seller  who  had  not  indorsed  the  note. 

8  Campbell's  "  Lives  of  the  Chief  Justices."     Vol.  2,  407,  note. 

4  Not  infrequently  were  the  verdicts  of  these  mercantile  juries  upset 
by  Lord  Mansfield.  In  Grant  v.  Vaughan,  3  Burr,  1516  (1764)  the 
Chief  Justice  left  to  a  special  jury  the  question  whether  a  check  payable 
to  bearer  was  "in  fact  and  practice  negotiable."  The  jury  found  it  was 


46  V.     COMMERCIAL    LAW 

He  discovered  that  the  usages  and  customs  of  merchants 
were  in  the  main  the  same  throughout  Europe.  When  a 
mercantile  case  came  before  him,  he  sought  to  discover  not 
only  the  mercantile  usage  which  was  involved,  but  the  legal 
principle  underlying  it.  It  was  this  habit  which  called  forth 
the  oft-quoted  eulogium  of  his  disciple  and  colleague,  Mr. 
Justice  Buller :  "  The  great  study  has  been  to  find  some  cer- 
tain general  principle,  not  only  to  rule  the  particular  case 
under  consideration,  but  to  serve  as  a  guide  for  the  future. 
Most  of  us  have  heard  those  principles  stated  reasoned  upon, 
enlarged,  and  explained  till  we  have  been  lost  in  admiration 
of  the  strength  and  stretch  of  the  human  understanding." 

Lord  Mansfield's  methods  are  admirably  illustrated,  as 
Mr.  Scrutton  has  pointed  out,  in  the  leading  case  of  Luke  v. 
Lyde. 1  The  question  at  issue  was,  what  freight  must  be  paid 
by  a  shipper,  in  case  of  loss.  Lord  Mansfield  felt  quite  cer- 
tain, at  the  trial,  of  the  proper  answer  to  be  given,  but  "  he 
was  desirous  to  have  a  case  made  of  it,  in  order  to  settle  the 
point  more  deliberately,  solemnly  and  notoriously ;  as  it  was 
of  so  extensive  a  nature ;  and  especially,  as  the  maritime  law 
is  not  the  law  of  a  particular  country,  but  the  general  law  of 
nations:  *  non  erit  alia  Romce,  alia  Athenis;  alia  nunc,  alia 
posthac:  sed  et  apud  omnes  gentes  et  omni  tempore,  una 
eademque  lex  obtinebit.9 '  After  thus  stating  his  reasons  for 
reserving  the  case  for  the  formal  opinion  of  the  court,  he 
proceeds  to  lay  down  the  legal  principles  which  must  rule 
the  case.  The  chief  sources  of  these  principles  are  the  Rho- 
dian  laws,  the  consolato  del  Mare,  the  laws  of  Oleron  and 
Wisby,  the  Ordinances  of  Louis  XIV.  and  various  treatises 
on  the  law  merchant,  and  the  usages  and  customs  of  the  sea. 
It  was  from  such  sources,  and  from  the  current  usages  of 
merchants,  that  he  undertook  to  develop  a  body  of  legal 
rules,  which  should  be  free  from  the  technicalities  of  the  corn- 
not.  Whereupon,  Lord  Mansfield  and  his  colleagues  Justices  Wilmot 
and  Yates  set  aside  the  verdict.  The  Chief  Justice  said  he  thought  he 
was  leaving  to  the  jury  "a  plain  fact  upon  which  they  could  have  no 
doubt,"  but  upon  further  consideration,  he  had  reached  the  conclusion 
that  he  ought  not  to  have  left  the  question  to  them,  "  for  it  is  a  question 
of  law  whether  a  bill  or  note  is  negotiable  or  not,  and  it  appears  in  the 
books  that  these  notes  (checks  to  bearer)  are  by  law  negotiable." 

1  2  Burrows  882.     (1759.) 


49.  BURD1CK:  WHAT  IS  THE  LAW  MERCHANT?   47 

mon  law,  and  whose  principles  should  be  so  broad  and  sound 
and  just,  as  to  commend  themselves  to  all  courts  in  all  coun- 
tries. This  conception  of  the  law  merchant,  as  a  branch  of 
the  jus  gentium,  was  not  original  with  Lord  Mansfield.  It 
had  found  frequent  expression,  in  former  centuries,  as  the 
extracts  which  we  have  given  above  clearly  disclose.  The 
important  fact  is  that  the  chief  justice  of  the  King's  Bench 
—  the  official  head  of  the  common  law  bench  and  bar  — 
should  devote  his  great  energies  to  the  development  of  a  body 
of  legal  rules  which  should  rest  not  on  common  law  principles, 
but  upon  the  principles  "  which  commercial  convenience,  pub- 
lic policy  and  the  customs  and  usages  of  "  merchants  had 
"  contributed  to  establish,  with  slight  local  differences,  over 
all  Europe."  1  It  is  this  cosmopolitan  character  of  the  law 
merchant,  to  which  Lord  Blackburn  referred  in  the  following 
passage,  taken  from  one  of  his  great  opinions :  "  There  are 
in  some  cases,  differences  and  peculiarities  which  by  the  munic- 
ipal law  of  each  country  are  grafted  on  it,  but  the  general 
rules  of  the  law  merchant  are  the  same  in  all  countries.  .  .  . 
We  constantly  in  English  courts,  upon  the  question  what  is 
the  general  law,  cite  Pothier,  and  we  cite  Scotch  cases  when 
they  happen  to  be  in  point;  and  so  in  a  Scotch  case  you 
would  cite  English  decisions  and  cite  Pothier  or  any  foreign 
jurist,  provided  they  bore  upon  the  point."  2 

The  Law  Merchant  of  To-Day 

Lord  Mansfield's  habit,  of  applying  the  principles  of  the 
law  merchant  to  the  decision  of  cases,  brought  in  the  common 
law  courts,  has  been  followed  for  a  century  and  a  half  by 
English  and  American  judges.  The  result  has  been  an  ex- 
tensive amalgamation  of  the  rules  of  the  law  merchant  with 
those  of  the  common  law.  These  two  bodies  of  rules  no  longer 
stand  apart,  as  they  did  three  centuries  ago.  Each  has  been 
modified  by  the  other  and,  to  a  great  extent,  has  lost  its 
separate  identity.  And  yet  it  is  not  difficult  to  point  out 
rule  after  rule,  which  has  come  into  English  jurisprudence 

1  Judge  Story  in  2  Gallison  (U.  S.  Circuit  Court)  398,  472  (1815). 
3  McLean  v.  Clydesdale  Bank,  9  App.  Cases,  pp.  95,  105  (1883). 


48  V.     COMMERCIAL    LAW 

from  the  law  merchant,  and  which  retains  the  characteristic 
features  which  it  possessed,  when,  centuries  ago,  it  was  un- 
known to  common  law  tribunals  and  was  enforced  only  in 
merchants'  courts  —  the  courts  pepoudrous,  the  staple  courts 
and  the  like  —  or  in  the  court  of  chancery. 

Let  us  consider  very  briefly  three  of  these.  The  first  two 
are  stated  by  Sir  John  Davies,  in  his  work  On  Impositions, 
from  which  we  have  made  several  quotations.  After  declar- 
ing that  the  law  merchant  and  the  laws  of  the  sea  "  admit 
of  divers  things  not  agreeable  to  the  common  law  of  the 
realm,"  he  gives  these  instances :  "  First,  If  two  merchants 
be  joint  owners,  or  partners  of  merchandizes,  which  they  have 
acquired  by  a  joint  contract,  the  one  shall  have  an  action 
of  account  against  the  other,  Secundum  Legem  Mercatoriam, 
but  by  the  rule  of  the  common  law,  if  two  men  be  jointly 
seized  of  other  goods,  the  one  shall  not  call  the  other  to  ac- 
count for  the  same."  The  distinction  between  the  rights  and 
powers  of  partners  over  firm  property  on  the  one  hand,  and 
the  rights  and  powers  of  tenants  in  common  on  the  other,  is 
still  due  to  the  fact,  that  the  former  have  their  origin  in  the 
ancient  law  merchant,  the  latter  in  the  equally  ancient  com- 
mon law.2  "  Second,  If  two  merchants  have  a  j  oint  interest  in 
merchandizes,  if  one  die,  the  survivor  shall  not  have  all,  but  the 
executor  of  the  party  deceased,  shall  by  the  Law-merchant 
call  the  survivor  to  an  account  for  the  moiety,  whereas  by  the 
rule  of  the  common  law,  if  there  be  two  joint  tenants  of  other 
goods,  the  survivor  per  jus  accrescendi  shall  have  all."  This 
doctrine  of  non-survivorship  among  partners  has  been  re- 
ferred to,  at  times,  as  resting  on  a  rule  of  equity,3  but  there 
is  abundant  proof  of  its  origin  in  the  law-merchant.  In  a 
note  to  a  case  decided  by  the  Common  Pleas  in  the  year  1611, 
it  is  said:  "It  was  agreed  by  all  the  justices  that  by  the 
Law  of  Merchants,  if  two  Merchants  join  in  trade,  that  of 
the  increase  of  that,  if  one  die,  the  others  shall  not  have  the 
benefit  by  survivour."4  A  similar  statement  was  made  by 

Quoted  in  Zouch's  "Jurisdiction  of  Admiralty,"  128. 

2  That  this  distinction  is  one  of  practical  importance  to-day  is.  shown 
by  Preston  v.  Fitch,  137  N.  Y.  41;   33  N.  E.  77  (1893). 

3  Lord  Thurlow  in  Lyster  v.  Dolland  1  Ves.  Jr.  at  p.  434  (1792). 

4  Hammond  v.  Jethro,  2  Brownlow  99,  note. 


49.  BURDICK:WHAT1STHELAW  MERCPIANT?   49 

Lord  Keeper  North,  in  a  chancery  case  decided  in  1683: 
"  The  custom  of  merchants  is  extended  to  all  traders  to  ex- 
clude survivorship."  *  If  any  doubt  remains  as  to  the  origin 
of  this  doctrine  it  ought  to  be  dispelled  by  the  following 
extract  from  the  Laws  of  Oleron :  "  If  two  vessels  go  a  fishing 
in  partnership,  as  of  mackerels,  herrings  or  the  like,  and  do 
set  their  nets,  and  lay  their  lines  for  that  purpose,  .  .  .  and, 
if  it  happen,  that  one  of  the  said  vessels  perish  with  her 
fishing  instruments,  and  the  other  escaping,  arrive  in  safety, 
the  surviving  relations  or  heirs  of  those  that  perished,  may 
require  of  the  other  to  have  their  part  of  the  gain,  and  like- 
wise of  their  fish  and  fishing  instruments,  upon  the  oaths  of 
those  that  are  escaped."  2 

The  third  rule,  to  which  we  would  refer,  is  that  relating 
to  the  right  of  stoppage  in  transitu.  How  much  doubt 
formerly  surrounded  the  origin  of  this  rule,  is  apparent  from 
the  following  language  of  Lord  Abinger,  Chief  Baron  of  the 
Exchequer :  "  In  courts  of  equity  it  has  been  a  received  opinion 
that  it  was  founded  on  some  principle  of  common  law.  In 
courts  of  law  it  is  just  as  much  the  practice  to  call  it  a 
principle  of  equity,  which  the  common  law  has  adopted."  8 
The  learned  judge  then  traces  the  course  of  judicial  decision 
upon  this  topic,  and  reaches  the  conclusion  that  the  earliest 
reported  cases  were  based  neither  on  principles  of  equity  nor 
of  common  law,  but  on  the  usages  of  merchants.  This  con- 
clusion has  been  approved  by  Lord  Blackburn,4  and  by  Lord 
Justices  Brett  and  Bowen.  "  The  doctrine  as  to  stoppage  in 
transitu,"  said  Lord  Justice  Brett,  "  is  not  founded  on  any 
contract  between  the  parties ;  it  is  not  founded  on  any 
ethical  principle ;  but  it  is  founded  upon  the  custom  of  mer- 
chants. The  right  to  stop  in  transitu  was  originally  proved 
in  evidence  as  a  part  of  the  custom  of  merchants ;  but  it  has 
afterwards  been  adopted  as  a  matter  of  principle,  both  at 
law  and  in  equity."  5  In  the  same  case,  Lord  Justice  Bowen 

Jeffreys  v.  Small,  1  Vern.  217. 

2  Laws  of  Oleron,  by  Guy  Meige,  chap,  xxvii.  This  appears  as  chap, 
xxv  of  the  Laws  of  Oleron,  as  they  are  printed  in  the  Appendix  to 
Godolphin's  View  of  Admiralty  Jurisdiction.  1661. 

8  Gibson  v.  Carruthers,  8  M.  &  W.  321,  338  (1841). 

4  Blackburn  on  Sales  (2d  ed.)  317,  et  seq. 

1  Kendal  v.  Marshal,  11  Q.  B.  D.  356,  364. 


50  V.     COMMERCIAL    LAW 

expressed  himself  as  follows :  "  The  right  of  stoppage  in 
transitu  is  founded  upon  mercantile  rules,  and  is  borrowed 
from  the  custom  of  merchants ;  from  that  custom  it  has  been 
engrafted  upon  the  law  of  England.  .  .  .  This  doctrine  was 
adopted  by  the  Court  of  Chancery,  and  afterwards  adopted 
by  the  Courts  of  Common  Law."  l 

The  Law  Merchant  and  the  Court  of  Chancery 

It  is  not  strange  that  the  doctrine  of  stoppage  in  transitu 
and  the  doctrine  of  non-survivorship  among  partners  make 
their  first  appearance,  as  far  as  reported  cases  are  concerned, 
in  the  Court  of  Chancery.  We  have  seen  that  Malynes, 
writing  early  in  the  Seventeenth  Century,  declared  that 
"  merchants'  causes  are  properly  to  be  determined  in  the 
chancery  .  .  .  for  the  customs  of  merchants  are  preserved 
chiefly  by  the  said  Court." 2  While  the  various  forms  of 
merchants'  courts  were  in  active  operation,  merchants  rarely 
needed  to  resort  to  the  regular  tribunals  of  the  realm.  But 
as  those  courts  died  out,  during  the  latter  part  of  the  six- 
teenth and  the  early  part  of  the  seventeenth  century,  mercan- 
tile disputes  had  to  be  brought  either  in  the  common  law 
courts  or  the  court  of  chancery.  After  Lord  Bacon's  victory 
over  Lord  Coke,  the  jurisdiction  of  chancery  became  very 
extensive,  and  merchants  were  able  to  bring  many  of  their 
disputes  before  that  tribunal  for  adjudication.  All  the  tra- 
ditions of  this  court  favored  the  recognition  of  the  law  mer- 
chant. As  early  as  1473  the  chancellor  had  declared  that 
alien  merchants  could  come  before  him  for  relief,  and  there 
have  their  suits  determined  "  by  the  law  of  nature  in  chancery 
.  .  .  which  is  called  by  some  the  law  merchant,  which  is  the 
law  universal  of  the  world."  3 

Naturally,  therefore,  many  of  the  rules  of  the  law  merchant 
have  come  into  English  jurisprudence  through  the  Court  of 
Chancery.  Not  a  few  of  them  are  looked  upon  as  the  crea- 
tures of  equity,  when  in  fact  they  are  the  offspring  of  the 
law  merchant,  which  chancery  has  deliberately  adopted. 

*Ibid.  at  p.  368. 

2  Lex  Mercatoria,  p.  303. 

8  Cited  in  Blackburn  on  Sales  (3d  ed.)  318. 


50.     THE  EARLY  HISTORY  OF  NEGOTIABLE 
INSTRUMENTS  1 

BY  EDWARD  JENKS  2 

HERE  is,  upon  some  subjects,  a  touching  absence  of 
I  curiosity  among  English  lawyers.  Institutions  which 
are  the  very  heart  of  modern  business  life,  the  fountain-heads 
of  not  ungrateful  streams  of  litigation,  are  accepted  as 
though,  like  the  image  of  Ephesus,  they  fell  direct  from 
heaven  for  the  benefit  of  a  deserving  profession.  The  legal 
questions  to  which  they  give  rise  are  studied  with  minute 
care,  the  legal  relationships  which  they  create  are  made  the 
occasion  of  microscopic  analysis.  But  the  subject  itself, 
the  really  interesting  and  important  matter,  is  left  untouched. 
No  example  better  than  negotiable  paper.  Bills  of  Ex- 
change, with  their  kindred  documents,  have  rendered  inter- 
national commerce  possible.  They  are  familiar  to  the  busi- 
ness man,  the  lawyer,  the  impecunious  —  a  category  some- 
what comprehensive.  They  have  been  the  occasion  of  scores 
of  statutes  and  thousands  of  reported  decisions.  Without 
them  modern  life  would  be  impossible  or  unrecognizable.  Yet 
it  is  hardly  going  too  far  to  say  that,  in  England,  we  have 
as  yet  no  serious  attempt  to  trace  the  origin  of  negotiable 
instruments.  Some  of  the  writers  who  profess  to  deal  with 
the  law  of  Bills  of  Exchange  make  no  allusion  whatever  to 
it.  Others  devote  a  page  or  two  of  discursive  remarks  to  the 
historical  side  of  the  subject,3  as  a  sort  of  concession  to  de- 


Essay  was  first  printed  in  the  Law  Quarterly  Review,  1893, 
vol.  IX,  pp.  70-85. 

aA  biographical  note  of  this  author  is  prefixed  to  Essay  No.  2  in 
Volume  I  of  this  Collection. 

8Cf.  Byles,  preface  to  1st  edition;  Chitty,  Bills  of  Exchange,  llth 
edition,  pp.  1-3;  Jencken,  Compendium,  &c.,  Introduction. 


52  F.     COMMERCIAL    LAW 

cency;  and  occasionally  a  learned  judge  drops  a  remark  in 
the  same  direction.  l  But  the  net  result  of  these  efforts  cannot 
be  said  to  be  gratifying.  We  are  favoured  with  the  stock 
quotations  from  Cicero  and  the  Pandects  (which  it  is  agreed 
have  nothing  to  do  with  the  matter),  with  the  dicta  of  Pothier 
and  Heineccius.2  We  are  told  that  the  first  statutory  refer- 
ence to  the  subject  in  England  is  of  the  year  1379,  3  and  the 
first  reported  decision  of  1601. 4  For  the  earliest  English 
treatise  we  are  referred  to  Malynes,  and  in  the  same  breath 
told  that  Malynes  was  probably  wrong  in  his  most  elemen- 
tary statements.  5 

Naturally  enough,  the  Germans  have  not  contented  them- 
selves with  this  empirical  method.  While  their  study  of  the 
Dogmatik  of  the  subject  is  perpetually  bringing  out  new 
points  of  interest,  while  they  watch  keenly  the  abundant 
legislation,  not  only  of  the  Continent  but  also  of  England, 
in  the  hope  of  establishing  something  like  a  logical  theory 
of  negotiable  instruments,  they  are  equally  alive  to  the  his- 
torical aspects  of  the  matter.  Ever  since  the  establishment 
of  the  Zeitschrift  fur  das  gesammte  Handelsrecht  in  the  year 
1858,  the  writers  in  that  review  have  been  adding  to  our 
knowledge  of  the  early  history  of  the  Law  of  Exchange 
(Wechselrecht) ,  though  it  must  be  admitted  that  anything 
like  unanimity,  even  upon  important  points,  has  not  yet  been 
attained.  The  articles  in  the  Zeitschrift  fur  Handelsrecht 
are  then  rather  stores  of  material  for  the  careful  elaboration 
of  hypotheses,  than  authoritative  expositions  of  truth.  The 
same  admission  must  also  be  made  with  regard  to  the  more 
permanent  works  of  Martens, 6  Biener, 7  Endemann,8  and  other 
writers  who  have  attempted  to  account  for  the  introduction 

1 E.  g.  the  late  Sir  Alexander  Cockburn,  in  Goodwin  v.  Robarts,  L.  R. 
10  Exch.  pp.  347  et  seq. 

2  Chitty,  p.  2;   Jencken,  p.  1. 
8  In  the  3  Ric.  II,  c.  3  (Chitty,  p.  2). 
4  Martin  v.  Boure,  Cro.  Jac.  6  (ib.). 
c  L.  R.  10  Exch.  p.  347. 

6  Versuch  einer  historischen  Entwickelung  des  wahren  Ursprungs  des 
Wechselrechts.     (Gottingen,  1797.) 

7  Wechselrechtliche  Abhandlungen.     (Leipzig,  1859.) 

8Studien  in  der  Romanisch-kanonistischen  Wirthschaft-  und  Rechts- 
lehre.  (Berlin,  1874.)  [The  valuable  results  of  Goldschmidt,  in  his 
Handbuch  des  Handelsrechts,  Pt.  I,  Universalgeschichte,  3d  ed.,  1891, 
should  be  compared.  —  EDS.] 


50.    JENKS:  NEGOTIABLE  INSTRUMENTS         53 

of  negotiable  instruments.  Subject,  however,  to  this  impor- 
tant reservation,  it  may  be  possible  to  put  together  a  few 
facts  of  interest  to  English  readers. 

The  existence  of  bills  of  exchange  in  something  like  their 
present  form  was  unquestionably  known  to  the  merchants  of 
the  fourteenth  century.  A  Piacenza  Ordinance  of  the  year 
1391  1  compels  campsores  to  give  written  acknowledgments 
of  moneys  deposited  with  them,  and  provides  for  a  special 
and  speedy  remedy  on  such  documents.  Unfortunately, 
nothing  is  said  about  transferability.  But  an  almost  con- 
temporary Ordinance  by  the  magistrates  of  Barcelona,  dated 
18th  of  March,  1394, 2  leaves  the  matter  beyond  doubt.  The 
Ordinance  is  concerned  with  the  weights  to  be  used  by  the 
silk  merchants,  and  with  the  form  of  the  acceptance  of  letters 
of  exchange  (y  sobre  la  forma  de  la  aceptacion  de  las  letras 
de  cambio).  It  is  expressly  provided  that  any  one  to  whom 
a  letter  of  exchange  is  presented  must  answer  within  twenty- 
four  hours  whether  he  will  accept  (complira)  or  no,  and  must 
further  indorse  on  the  letter  the  decision  to  which  he  comes, 
together  with  the  exact  date  of  the  presentation.  If  he  fails 
to  comply  with  this  rule,  he  is  to  be  deemed  to  have  accepted 
(que  lo  dit  cambi  li  vage  per  atorgat). 

Half  a  century  later,  an  Ordinance  of  the  French  King 
Louis  XI, 3  creating  or  renewing 4  a  quarterly  fair  in  the 
town  of  Lyons,  refers  to  the  use  of  lectres  de  change  as  an 
established  institution  for  merchants  whose  business  compels 
them  to  frequent  fairs.  The  whole  Ordinance  gives  us  a 
curious  glimpse  into  the  political  economy  of  the  Middle 
Ages.  During  the  fair-days  foreign  moneys  may  be  used, 
the  fiscal  regulations  as  to  the  export  of  coin  and  precious 
ictals  are  suspended,  the  trade  of  money-changer  may  be 
:ercised  by  persons  of  all  nations,  except  noz  ermemis  anciens, 
the  English.  But  it  is  more  for  our  present  purpose  to 
mow  that,  during  the  fairs,  money  may  be  remitted  in  all 

1  Printed  in  Martens,  App.  p.  18. 

2  Martens,  App.  p.  107. 

3  Recueil  G6ne>al  des  anciennes  "Lois  franchises,  by  Isambert,  Jourdan, 
and  De  Crusy  (ed.  1825),  x.  451-6.    The  Ordinance  is  dated  1462. 

*  There  appears  to  have  been  an  earlier  charter  by  Charles  VII,  in 
1443,  but  this  is  not  printed  (cf.  vol.  ix.  p.  119). 


54  V.     COMMERCIAL    LAW 

directions  by  lectres  de  change,  so  long  as  it  does  not  find 
its  way  either  to  Rome  or  England,  and  that  a  special  court 
is  to  sit  for  summary  process  against  defaulters  on  such 
letters,  en  faisant  aucune  protestation,,  ainsi  qu'ont  accous- 
tume  faire  marchands  frequentans  foires.  Unfortunately, 
the  precise  nature  of  this  summary  process  is  described 
neither  here  nor  in  the  Piacenza  Ordinance,  though  the  latter 
states  that  it  is  to  be  sine  aliqud  petitions  sen  libello. 

The  work  of  Pegoletti  of  Florence,  Practica  della  Merca- 
tura,  attributed  by  Martens  1  to  the  commencement  of  the 
fourteenth  century,  contains  unmistakable  references  to 
scritti  di  cambio,  and  indeed  makes  use  of  several  of  the 
technical  terms  so  familiar  at  the  present  day.  Further 
back  than  the  fourteenth  century,  however,  it  does  not  seem 
possible  to  trace  the  existence  of  negotiable  instruments  in 
their  modern  form;  in  fact  there  is  some  slight  negative 
evidence  against  their  existence  prior  to  the  middle  of  the 
thirteenth  century.  Salvetti,  the  author  of  the  Antiquitates 
Florentinae,  mentions  a  Corpus  Artis  Cambii  Sanctionum  of 
the  year  1259,  which  dealt  largely  with  the  art  of  weighing 
and  testing  coin,  but  did  not  recognise  the  existence  of  literal 
cambii.  Ex  Us  TANDEM  (says  Salvetti)  eruitur  Florentino- 
rum  fuisse  literarum  cambii  utilissimum  inventum. 2 

Our  enquiry  into  the  earlier  history  of  negotiable  paper 
will,  therefore,  be  of  a  purely  biological  character.  We  shall 
have  to  trace  in  the  clauses  of  early  medieval  documents  the 
germs  from  which  the  limbs  of  the  negotiable  instrument, 
so  startlingly  different  from  the  orthodox  forms  of  legal 
anatomy,  were  developed.  For  we  may  be  quite  sure  that 
negotiable  instruments  were  not  an  invention,  but  a  develop- 
ment. 

But  before  turning  to  this  biological  enquiry,  let  us  satisfy 
ourselves  that  the  legislators  and  writers  of  the  fourteenth 
and  early  fifteenth  centuries  were  dealing  with  facts,  not 
with  fictions.  Hitherto  we  have  only  had  references  to  imag- 
inary instruments.  We  want  to  see  concrete  examples. 

*The  oldest  known  to  me  is  a  bill  of  exchange  of  the  5th 

1  App.  p.  2,  where  Pegoletti's  45th  chapter  is  reprinted. 
*  Salvetti,  Antiquitates  Florentinae  (1777),  §  93,  p.  62. 


50.    JENKS:  NEGOTIABLE  INSTRUMENTS     55 

October,  1339.  It  is  drawn  by  Barna  of  Lucca  on  Bartalo 
Casini  and  company  of  Pisa,  payable  to  Landuccio  Busdraghi 
and  company  of  Lucca  in  favour  of  Tancredi  Bonaguinta  and 
company.  It  reads  thus :  — 

Al  nome  di  Dio  amen.  Bartalo  e  compagni:  Barna  da 
Lucha  e  compagni  salute.  Di  Vignone.  Pagherete  per  questa 
lettera  a  di  xx  di  novembre  339  a  Landuccio  Busdraghi  & 
compagni  da  Luca  fiorini  trecento  dodici  e  tre  quarti  d9  oro 
per  cambio  di  fiorini  trecento  d9  oro,  che  questo  di  delta  fatta 
rfavemo  da  Tancredi  Bonaguinta  e  compagni,  a  raxione  di 
IIII  e  quarto  per  C  alloro  vantaggio,  e  ponete  a  nostro  conto 
e  ragione.  Fatta  di  V  d9  ottobre  339.  —  Francesco  Falco- 
netti  ci  a  mandate  a  paghare  per  voi  a  gli  Acciaiuoli  scudi 
CCXXX  d9  oro. 

The  letter  is  addressed  —  Bartalo  Casini  e  compagni  in 
Pisa.  It  bears  also  a  trade-mark,  near  to  which  is  the  word 
Prima.1 

Another  example,  though  sixty  years  younger,  is  of  inter- 
est for  our  purpose,  for  it  is  contained  in  a  reference  sent  by 
the  magistrates  of  Bruges  to  the  magistrates  of  Barcelona, 
whose  exchange-ordinance  we  have  already  noticed.  Inas- 
much as  there  was  no  political  connection  between  Barcelona 
and  Bruges  at  the  beginning  of  the  fifteenth  century,  the 
reference  must  have  been  occasioned  by  one  of  two  facts  — 
the  residence  of  the  drawee  at  Barcelona,  or  some  special 
reputation  possessed  by  the  Catalonian  city  in  exchange  mat- 
ters. In  either  case  the  fact  is  interesting.  Of  course  the 
practice  of  '  stating  a  case '  for  the  opinion  of  a  specialist 
or  learned  body  was  extremely  familiar  to  the  courts  of  the 
later  Middle  Ages ;  Henry  VIII's  divorce  question  affording 
a  conspicuous  example.  Here,  however,  is  the  document :  — 

Al  nome  di  Dio  amen.  A  di  18  Maggiore,  1404.  P agate 
per  questa  prima  di  cambio  ad  usanza  a  Piero  Gilberto  et  a 
Piero  di  Scorpo  scuti  mille  de  Felippo  a  soldi  10  Barcelonesi 
per  scuto,  i  quali  scuti  mille  sono  per  cambio,  che  (.  .  .)  con 
Giovanni  Colombo  a  grossi  Q%  di  9.  scuto;  et  pagate  d 

1  Printed  by  Brunner,  Zeitschrift  fiir  Handelsrecht,  xxii.  8.  Martens 
).  65)  speaks  of  an  example  of  the  year  1325,  quoted  by  Baldus  de 
baldis. 


56  V.     COMMERCIAL    LAW 

nostro  conto  et  Christo  vi  guardi.  —  Antonio  Quarti  Sal. 
de  Bruggias. 

The  letter  is  addressed  —  Francisco  de  Prato  et  Comp.  a 
Barsalona. l 

Here  then  we  have  two  bills  or  letters  of  exchange,  one 
upwards  of  500  years  old,  the  other  only  half  a  century 
younger,  which  would  (unquestionably)  be  perfectly  intelli- 
gible to  any  English  merchant  at  the  present  day.  Three 
points  of  difference  may,  however,  be  briefly  noted. 

1.  Each  bill   has  four  parties,   instead  of,   according   to 
modern  practice,  three.     In  addition  to  the  drawer,  drawee, 
and  payee,  there  is  a  presenter,  or  recipient  on  behalf  of 
the  payee.     We  shall  see  that  this  is  the  common  practice, 
and  we  may  be  able  to  offer  a  suggestion  as  to  its  meaning. 

2.  The  name  of  the  drawee  is  indorsed.     In  the  first  bill 
it  appears  also  on  the  face,  in  the  second  it  does  not.     This 
fact  will  come  in  usefully  hereafter. 

3.  The  second  bill  is  written  in  Italian,  though  none  of  the 
parties  to  it  have  (apparently)  an  Italian  domicile,  nor  does 
there  seem  to  be  any  essential  reason  for  the  choice  of  lan- 
guage.    This  fact  seems  to  point  to  an  early  Italian  influence 
in  bills  of  exchange. 

Can  we  now  go  a  step  further,  and  vivify  our  notions  of 
early  negotiable  instruments  by  observing  them  as  subjects 
of  actual  litigation  ?  Fortunately  we  can ;  and  the  glimpse 
will  not  be  without  interest,  as  it  can  only  be  obtained  through 
the  medium  of  fragmentary  publications. 

On  the  establishment  of  the  Belgian  kingdom  in  1837,  the 
new  Government,  in  the  ardour  of  patriotism,  undertook  the 
issue  of  a  Recueil  des  anciennes  Coutumes  de  la  Belgique. 
Two  of  the  most  important  publications  of  the  Royal  Com- 
mission are  the  Coutumes  d'Anvers2  and  de  Bruges  respect- 
ively. But  it  pleased  the  wisdom  of  the  Government  to  forbid 
the  publication  in  the  latter  compilation  of  *  le  texte  des 
sentences  ou  decisions  particulieres  et  les  matieres  commer- 
ciales.'  Whereby,  certain  most  interesting  matter  would  have 

1  Zeitschrift  fur  Handelsrecht,  xxii.  7. 

2  As  to  the  dates  of  the  various  codes  comprised  in  this  compilation, 
cf.  an  interesting  note  by  Brunner,  Zeitschrift  fiir  Handelsrecht,  xxii.  4, 
n.  5.    They  are  much  later  than  the  Bruges  decisions. 


60.    JENKS:  NEGOTIABLE  INSTRUMENTS     57 

been  lost  to  students  of  this  generation,  had  not  the  distin- 
guished German  jurist  Brunner  appealed  in  the  name  of 
learning  to  the  editor  of  the  Coutumes  de  Bruges,  Dr.  Gil- 
liodts  van  Severen,  to  save  at  least  some  fragments  from  the 
general  fate.  Dr.  Van  Severen,  in  reply,  forwarded  to  Pro- 
fessor Brunner  several  manuscript  copies  of  protocols  re- 
corded in  connection  with  proceedings  before  the  Town  Coun- 
cil, or  Schoffengericht,1  of  Bruges,  in  the  middle  of  the  fif- 
teenth century.  These  reports,  long  extracts  from  which 
have  been  published  by  Brunner  in  the  Zeitschrift  fur  Han- 
delsrecht,  are  thus  almost  contemporaneous  with  the  Lyons 
charter  of  Louis  XI,  and  with  the  important  Bolognese  Ordi- 
nance of  1454,2  to  be  hereafter  alluded  to.  The  cases  quoted 
by  Brunner  are  interesting  in  all  kinds  of  ways,  but  space 
forbids  the  quotation  of  more  than  one  example. 

Spinula  v.  Camby.  Judgment  of  29th  March,  1448. 
Bernard  and  Matthias  Ricy,  at  Avignon,  on  the  3rd  June, 
1439,  gave  a  letter  of  exchange  (fist  ung  change)  to  Cerruche, 
of  Bardiz,  for  450  florins.  The  bill  was  drawn  on  one  Marian 
Rau,  and  was  payable  at  Bruges  to  Bernard  Camby  (the 
defendant)  and  another.  Marian  Rau  paid  the  defendant  in 
full  soon  after  the  arrival  of  the  bill  at  Bruges,  but  the  de- 
fendant nevertheless  *  protested  '  it  for  non-payment,  and  sent 
it  back  with  the  protest  to  Avignon.  Thereupon  the  Ricys 
were  compelled  to  pay  the  amount  (presumably  to  Cerruche). 
Marian's  rights  in  the  matter  seem  to  have  passed,  in  some 
unexplained  way,  to  her  brother  Odo,  who  transferred  them 
by  a  formal  instrument  (produced  before  the  Court)  to  the 
plaintiff,  Spinula.  The  latter  brought  his  action  against 
Camby  to  recover  the  amount  paid  him  by  Marian. 

The  defendant  pleaded,  first,  that  before  the  assignment 
to  the  plaintiff,  Odo  Rau  had  become  bankrupt  (estoit  faillj), 
and  that  his  goods  and  debts,  therefore,  belonged  to  his  cred- 
itors rateably;  second,  that  he  had  never  had  any  dealings 
with  Odo  Rau,  but  that  if  the  plaintiff  would  bring  his  action 

1  It  is  well  known  that,  in  the  Middle  Ages,  the  town-corporations 
frequently  acquired  or  absorbed  the  jurisdiction  formerly  belonging  to 
the  local  Schoffen  or  scabini. 

*  Printed  in  Martens,  App.  pp.  56-63. 


58  V.     COMMERCIAL    LAW 

in  the  name  of  Marian,  he  would  account  as  a  good  merchant 
should. 

The  court  deputed  certain  of  its  members  to  consider  the 
matter,  and  also  took  the  advice  of  two  merchants,  one  from 
Lucca,  the  other  from  Pisa,  whom  the  parties  had  chosen  as 
arbitrators.  In  its  judgment  it  nonsuited  the  plaintiff,  on  the 
express  ground  that  the  attempted  transfer  to  him  of  the 
rights  of  the  Raus  was  worthless.1 

The  case  is  startlingly  modern  in  some  of  its  aspects.  We 
have  the  modern  bill  of  exchange,  with  presentation  and  pay- 
ment. Evidently  also  the  '  protest  '  was  a  fully  recognised 
proceeding,  for  on  its  arrival  at  Avignon  the  Ricys  acted 
upon  it  without  any  suspicion  of  the  trick  which  had  been 
played.2  And  the  recourse  of  the  payee  against  the  drawer, 
familiar  also  to  modern  law,  is  clearly  admitted.  The  medieval 
aspects  of  the  case  are,  of  course,  the  refusal  to  recognise  a 
written  transfer  of  a  chose  in  action,  or,  as  the  report  puts  it, 
droit  et  action,  the  existence  (as  in  the  earlier  examples)  of 
the  four  parties  to  the  bill,  and  the  reference  to  the  Italian 
merchants. 

Enough  then  has  been  said  to  prove  the  existence  and  legal 
recognition  of  bills  or  letters  of  exchange  at  the  beginning 
of  the  fifteenth  century.  Minor  points  can  be  dealt  with  af- 
terwards. We  must  now  make  an  attempt  to  trace  the  bio- 
logical development  of  the  negotiable  instrument. 

It  will  hardly  be  disputed  that  the  negotiable  instrument  of 
to-day  still  retains  one  of  the  most  marked  features  of  early 
law.  It  is  one  of  the  very  few  surviving  instances  of  the 
formal  contract.  In  spite  of  all  modern  legislation,  in  spite 
of  the  Zeitgeist  and  its  dislike  of  formalism,  it  is  still  ex- 
tremely dangerous  to  depart  from  the  letter  of  precedent  in 
negotiable  paper.  A  glance  at  the  examples  of  the  fourteenth 
and  fifteenth  centuries  is  sufficient  to  show  how  slight  are  the 
changes  in  the  form  of  a  bill  of  exchange  which  the  revolution 
of  five  centuries  has  produced. 


1  Printed  in  Zeitschrift  fur  Handelsrecht,  xxii. 

a  According  to  the  Bolognese  Ordinance  of  1454,  the  protest  had  to  be 
made  before  a  judex  (Martens,  App.  p.  61).  Had  this  precaution  been 
adopted  in  the  case  quoted,  in  all  probability  the  fraud  would  have  been 
discovered. 


50.    JENKS:  NEGOTIABLE  INSTRUMENTS     59 

But  if  in  this  one  respect  the  negotiable  instrument  smacks 
of  antiquity,  in  its  more  essential  qualities  it  is  wholly  opposed 
to  the  spirit  of  early  law.  The  alienability  of  rights  in  per- 
sonam  (to  say  nothing  of  proprietary  rights)  by  simple  en- 
dorsement or  handing  over  of  a  document  of  title,  the  improve- 
ment of  title  by  transfer,  are  very  modern  notions.  It  will 
be  sufficient  if  we  follow  up  the  track  suggested  by  the  first 
of  these  qualities. 

Choses  in  action  are  inalienable  in  early  law  for  two  reasons. 
In  the  first  place  the  tribunals  do  not  allow  representation; 
or,  in  other  words,  the  transferee  is  unable  to  enforce  his  claim 
because  he  is  regarded  by  the  court  as  a  stranger  to  the  pro- 
ceedings. In  the  second,  a  chose  in  action  does  not  permit  of 
that  corporeal  and  formal  transfer  which  is  essential  to  the 
legality  of  early  conveyances.  These  two  considerations  give 
us  the  key  to  the  history  of  negotiable  instruments. 

Primitive  tribunals  do  not  admit  of  representation.  This 
is  a  rule  with  which  every  student  of  law  is  familiar.  We  need 
here  only  point  out  the  extreme  tenacity  with  which  German 
Law  held  to  the  maxim.1  Even  so  late  as  the  twelfth  century, 
the  clumsy  Roman  method  of  adstipulatio  2  was  used  by  the 
contracting  party  who  wished  to  provide  for  the  enforcement 
of  his  rights  by  a  third  person. 

But  there  arrives  a  period  in  the  history  of  every  pro- 
gressive people  when  this  rule  becomes  a  grievous  nuisance, 
and  all  kinds  of  evasions  are  then  attempted.  According  to 
the  great  authority  of  Brunner,  modern  Europe  is  indebted 
for  the  earliest  successful  efforts  of  this  character  neither 
to  what  we  now  call  Germany,3  nor  to  France,4  but  to  the 
genius  of  the  Lombard  jurists,  whose  ideas,  Teutonic  in  the 
main,  differed  in  many  important  respects  from  those  of  the 
Transalpine  Germans.  Whether  these  differences,  especially 

1  Schroder,  Lehrbuch  der  deutschen  Rechtsgeschichte,  p.  709.  [Com- 
pare Brunner's  essay  on  The  Early  History  of  the  Attorney  in  English 
Law,  translated  in  the  Illinois  Law  Review,  1908,  III,  257.  — EDS.] 

*  Cf .  Loersch  and  Schroder,  Urkunden  zur  Geschichte  des  deutschen 
Rechtes,  Nos.  5,  25,  56,  60,  63,  68,  74,  81,  105. 

•  Zeitschrift,  xxii.  p.  103. 

4  Das  franzosische  Inhaberpapier,  p.  30  and  passim;  [now  reprinted 
in  his  Forschungen  zur  Geschichte  des  deutschen  und  franzosischen 
Rechts,  1894.  —  EDS.] 


60  V.     COMMERCIAL    LAW 

conspicuous  in  legal  matters,  were  due  to  the  geographical 
connection  of  the  Lombards  with  the  native  soil  of  Roman 
Law,  or  to  some  race-peculiarity  of  the  Lombard  stock,  is 
too  great  a  question  to  be  mooted  here.  Only  it  is  of  im- 
portance for  English  students  never  to  forget  the  close  affin- 
ity between  the  Anglo-Saxon  and  the  Lombard,  an  affinity 
which  shews  itself  in  politics  l  and  law  2  as  well  as  in  speech. 

It  is  not,  of  course,  to  be  expected  that  the  earliest  steps 
of  a  reform  such  as  we  are  seeking  should  be  found  in  legisla- 
tion. Primitive  legislators  do  not  trouble  themselves  much 
about  commercial  convenience;  they  are  even  apt  to  look 
upon  the  rapid  circulation  of  capital  with  grave  suspicion. 
The  art  of  the  conveyancer,  in  which  the  Lombards  were  spe- 
cially distinguished,  is  the  origin  of  the  reform. 

Two  great  collections  of  early  Lombard  documents  have 
recently  been  rendered  accessible  to  the  ordinary  student. 
The  first  of  these  is  the  Memorie  e  Documenti  per  servire  air 
istoria  del  Ducato  de  Lucca,  the  fifth  volume  of  which  con- 
tains a  reprint  of  the  cathedral  documents  of  the  7th,  8th, 
9th,  and  10th  centuries.  During  this  period  Lucca  formed 
part  of  the  princedom  or  duchy  of  Tuscany,  itself  a  part 
of  the  Lombard  Kingdom  of  Italy.  Towards  the  close  of  the 
eighth  century  it  became,  of  course,  subject  to  the  overlord- 
ship  of  the  Frank  empire;  but  the  respect  with  which  the 
conquerors  treated  Lombard  institutions  is  well  known. 

The  second  collection  is  the  recently  edited  Codex  Cavensis, 
the  reprint  of  the  original  deeds  contained  in  the  archives  of 
the  Cluniac  monastery  at  La  Cava,  near  Salerno,  founded 
by  Alferius  Pappacarbone  in  the  year  101 1.3  Salerno,  which 
had  previously  formed  part  of  the  Lombard  principality  of 
Beneventum,  became  in  the  year  843  (the  year  of  the  Treaty 
of  Verdun),  with  the  approval  of  its  Frankish  overlord,  Lud- 
wig  the  German,  a  separate  duchy,  and  so  remained  until  its 
conquest  by  Roger  Guiscard  in  1077.  The  only  fact  which 

1  See  this  idea  worked  out  by  Sohm,  Frankische  Reichs-  und  Gerichts- 
Verfassung.  p.  24-26. 

a  E.  g.  in  questions  of  Dower  and  the  Traditio  per  cartulam. 

8  Codex  Cavensis,  synopsis,  p.  ix.  (It  will  interest  British  readers  to 
know  that  to  the  expense  of  the  edition  there  contributed,  amongst  others, 
the  '  Praesidens  rebus  Regni  Britannic! '  and  the  *  Academia  cui  titulus 
Innertemple.') 


60.    JENKS:  NEGOTIABLE  INSTRUMENTS     61 

makes  against  the  character  of  the  Codex  as  an  exposition 
of  pure  Lombard  practice,  is  the  admittedly  successful  in- 
roads of  the  Saracens  into  Southern  Italy  during  the  pre- 
Carolingian  period.  But  it  is  unlikely  that  the  Lombard 
lawyers  would  be  seriously  affected  by  Saracenic  influence. 
Of  course  the  bulk  of  the  documents  in  both  collections  come 
long  before  the  revival  of  the  study  of  Roman  Law  in  Italy. 

Brunner  arranges  under  four  heads  those  clauses  of  the 
Lombard  documents  which  aim  at  evading  the  strictness  of 
the  early  law  of  transfer.  But,  as  it  is  always  an  advantage 
to  simplify  classification  where  possible,  we  may  be  allowed 
to  absorb  his  four  classes  into  two,  basing  our  arrangement 
rather  on  the  nature  of  the  object  aimed  at,  than  on  the 
form  of  words  by  which  that  object  is  attained.  Let  it  be 
understood  that  our  examples  are  taken  from  all  kinds  of 
documents  —  gifts,  sales,  leases,  bonds,  and  even  wills.. 

Class  I.  Here  the  object  of  the  conveyances  is  to  provide 
specially  for  the  enforcement  of  a  right  in  personam,  on 
behalf  indeed  of  the  grantee,  but  through  the  agency  of  a 
third  person.  This  attempt  gives  rise  to  the  two  forms 
which  Brunner  has  named  (a)  Exactionsklausel,  and  (&) 
Stellvertretungsklausel.  The  former  runs  thus :  —  per  se  aut 
per  ilium  hominem  cui  ipse  hanc  cartulam  dederit  ad  exigen- 
dum.  It  is  found  so  far  back  as  the  year  771,  in  a  curious 
document  in  which  a  monk  makes  over  to  a  church  (amongst 
other  things)  the  right  to  avenge  his  death  if  he  shall  be 
murdered  —  i.  e.  (doubtless)  the  right  to  recover  his  wergild.1 
A  Lucchese  document  of  the  year  819  has  a  significant  varia- 
tion—  aut  ad  ilium  homine(m)  cui  tu  hanc  pagina(m)  pro 
animd  tua  ad  exigendum  ET  DISPENSANDUM  dederis.2  The  et 
dispensandum,  which  appears  again  in  a  will  of  the  year  836,3 
refers  to  the  dispensator,  or  clerical  official  who  disposed  of 
the  deceased's  goods  for  the  benefit  of  his  soul.  He  forms  an 
important  link  in  the  history  of  testamentary  capacity.  The 
Stellvertretungsklausel  differs  from  the  ExactionsTdausel  only 
in  form.  It  runs  —  vel  cui  istum  breve  in  manu  paruerit  in 

'Loersch  and  Schroder,  No.  32. 
aMemorie  di  Lucca,  No.  424. 
8Ib.  No.  532. 


62  F.     COMMERCIAL    LAW 

vice  nostra,  and  is  to  be  found  in  numerous  examples  of  the 
La  Cava  documents,  from  the  early  ninth  century  onwards.1 
The  important  point  to  notice  about  both  these  variations  is 
that  they  treat  the  transferee  as  the  agent  of  the  original 
grantee,  not  as  an  independent  acquirer. 

Class  II.  Here  we  come  upon  a  different  plan,  which 
evidently  contemplates  an  actual  transfer  of  the  beneficial 
right.  This  group  of  clauses  is  named  by  Brunner  the 
Inhaberklauseln,  and  is  subdivided  by  him  into  alternative 
and  pure.  His  meaning  will  be  apparent  in  a  moment  if  we 
take  an  example  of  each  subdivision.  The  alternative  In- 
haberklausel  reads  thus  —  tibi  aut  eidem  homini  qui  hunc 
scriptum  pro  manibus  abuerit?  or,  mihi  sen  ad  hominem  ilium, 
apud  quern  brebem  iste  in  manu  paruerit.8  It  is  found  in 
the  middle  of  the  ninth  century.  The  reine  InhabeMausel 
is  not  quite  so  old.  The  earliest  example  quoted  by  Brunner 
is  under  the  year  962.  It  runs  thus  —  (ad  componendum) 
ad  hominem  aput  quern  iste  scribtus  paruerit,*  and  it  is  note- 
worthy that  the  earliest  examples  are  nearly  all  concerned 
with  wills,  or  at  least  mortuary  gifts.5  The  transition  from 
the  alternative  to  the  pure  Inhaberklausel  simply  consists  in 
omitting  the  name  of  the  original  stipulator,  and  the  step  is 
easily  explained  by  the  hypothesis  that  the  latter  form  was 
first  used  in  cases  which,  in  the  nature  of  things,  the  stipu- 
lator could  not  expect  to  enforce  his  own  claim. 

The  first  class  of  clauses,  which  we  may  call,  for  brevity's 
sake,  the  '  representative  '  clauses,  seem  rarely  to  have  been 
found  north  of  the  Alps.  The  Bolognese  Ordinance  of  1454 
shows  distinct  traces  of  their  influence  in  Italy  when  it  says : 
—  Et  quod  liceat  cuicunque,  cuius  intersit,  per  se,  vel  alium 
legitime  intervenientem  diet  as  Scripturas  Librorum  (deposit 
receipts)  petere  EXECUTIONI  MANDARI  contra  Scribentem.Q 
And  in  the  Stralsunder  Stadtbuch  for  the  years  1287-8  we 
get  this  interesting  entry :  —  LudeJcinus  de  Fonte  dabit  in 

lCf.  Codex  Cavensis,  vol.  i.  No.  11;  vol.  ii.  Nos.  11,  221,  225,  242. 

2  Memorie  di  Lucca,  v.  2,  No.  825. 

s  Codex  Cavensis,  ii.  No.  213. 

4  Codex  Cavensis,  ii.  No.  218. 

6  See  the  examples  quoted  in  the  Zeitschrift,  xxii.  505-510. 

6  Ordinance,  xliii.  §  3  (Martens,  App.  p.  57). 


60.    JENKS:  NEGOTIABLE  INSTRUMENTS     63 

festo  beati  Michaelis  vel  Gerardo  dicto  Repere  TJEL  suo  NUN- 
TIO  CUICUNQUE,  dummodo  apportaverit  literam  creditivam 
10  rare.1  But,  with  the  greatest  possible  deference,  it  can 
hardly  be  said  that  the  German  phrase  —  wer  diesen  Brief 
mit  ihrem  Willen  inne  hat  —  conveys  the  full  force  of  its 
alleged  Latin  equivalent  —  cui  ipse  hanc  cartulam  dederit  ad 
exigendum.  And  of  his  alleged  Stellvertretungsklausel  — 
oder  wer  diesen  Brief  von  ihretwegen  inne  hat 2  —  Brunner 
quotes  no  example,  though  the  Stralsund  entry  may  perhaps 
be  said  to  give  us  a  German  instance  of  the  Stellvertretungs- 
Tdausel. 

Moreover,  of  the  pure  Inhaberklausel,  which  seems  to  pos- 
sess no  special  advantage  over  the  alternative  form,  there  ap- 
pear to  be  but  few  early  examples  either  in  France3  or 
Germany.4  The  alternative  Inhaberklausel,  on  the  other 
hand,  had  established  itself  firmly  in  western  and  central 
Europe  by  the  end  of  the  thirteenth  century.  Sometimes  it 
is  in  a  Latin  form  —  quos  dabunt  praedicto  Radolfo  vel  alicui 
de  concivibus  nostris  qui  presentem  literam  presentavit  coram 
nobis.5  But  it  soon  acquires  a  vernacular  familiarity  —  joft 
den  ghenen  die  dese  lettren  bringhen  sal,®  oder  behelder  des 
briefs,7  ou  a  celui  qui  cette  lettre  portera.* 

Perhaps  the  most  curious  point  about  the  Inhaber  clauses 
is  that  there  seems  to  have  been  no  necessity  for  the  trans- 
feree of  the  claim  to  prove  his  title.  We  are,  of  course, 
familiar  with  the  presumption  of  modern  law  in  favour  of 
the  holder  of  negotiable  instruments.  But  it  is  a  little 
startling  to  find,  so  early  as  the  eleventh  century,  the  guar- 
dianship of  a  widow  passing  from  hand  to  hand  with  a  docu- 
ment. Yet  in  the  year  1036  a  certain  *  comes  Petrus  '  by  his 
will  left  the  guardianship  of  his  wife,  and  all  belonging 
thereto,  to  his  germani  Malfred  and  John  or  illi  viro  cui 

1Fabricius,  Das  alteste  Stralsunder  Stadtbuch,  p.  67,  No.  526   (also 
printed  in  Loersch  and  Schroder,  No.  152). 
2  Zeitschrift,  xxiii.  p.  228. 
8  Das  franzosische  Inhaberpapier,  App.  29,  57. 

4  See  the  rare  examples  quoted  by  Gareis,  Zeitschrift,  xxi.  p.  372  n. 
'Loersch  and  Schroder,  No.  159. 
•Loersch  and  Schroder,  No.  161   (13th  cent.). 
7Ib.  No.  294  (15th  cent.). 
*  Das  franzosische  Inhaberpapier,  p.  50  (13th  cent.). 


64  V.     COMMERCIAL    LAW 

scriptum  in  manu  paruerit.  Thirty  years  later,  a  certain 
clerk  John  appeared  in  court  as  guardian  of  the  widow,  and 
was  accepted  as  such  without  a  question  on  production  of  the 
document  —  in  emus  manu,  ut  supra  scriptum  est,  prae- 
dictum  scriptum  paruit.1  With  regard  to  debts,  we  have  an 
actual  decision  ad  hoc  in  the  fifteenth  century,  by  the  council 
of  the  famous  city  of  Liibeck,  the  head  of  the  Hanseatic 
League,  and,  by  virtue  of  its  appellate  jurisdiction,  the 
greatest  authority  on  commercial  law  in  Germany. 

6  Herman  Ziderdissen,  burgher  of  Koln  on  the  Rhine,  ap- 
pearing before  the  honourable  Council  at  Liibeck,  arrests 
Johan  Cleitzen,  burgher  of  the  same,  asserts  and  claims  of 
him  100  Rhenish  gulden,  which  the  same  Johan  Cleitzen  owed 
to  Frank  Greverode,  burgher  of  Koln,  his  heirs  or  holder  of 
the  letter  (sinen  erven  ofte  hebbern  des  breves),  and  which 
the  same  John  with  his  own  hand,  so  he  openly  acknowledged 
and  admitted,  underwrote  and  with  his  signet  sealed,  which 
before  the  council  at  Liibeck  was  read,  yet  he  refuses  to  pay 
the  debt  in  arrear.  Thereto  Johan  Cleitzen  answers  that 
Herman  should  shew  his  authority  (macht)  from  Frank 
Greverode.  Thereupon  the  aforesaid  Council  at  Liibeck  de- 
cided that  he  has  no  right  to  it:  As  the  letter  contains  the 
words  "  hebbere  des  breves,"  and  he  admitted  that  he  had 
underwritten  it,  so  must  he  answer  thereto;  if  he  has  any 
objection  to  make,  let  it  be  brought  forward  as  right  is.'  2 

Here  then  is  a  clear  recognition  of  the  transferability  of  a 
bond  with  the  alternative  Inhaberklausel,  at  the  end  of  the 
fifteenth  century.  Later  on  we  shall  see  that  there  came  a 
reaction  in  France  which  was  not  without  its  results.  The 
English  practice  of  the  period  seems  to  have  been  to  make 
the  bond  payable  to  the  original  creditor  vel  suo  certo  attor- 

1  De  Blasius.  Series  Principum  Salerni,  App.  p.  iii,  No.  1.  Doubtless 
with  the  representative  clauses  the  transferee  had  to  show  his  authority 
(see  the  literam  creditivam  of  the  Stralsund  entry).  [An  interesting 
controversy  over  the  correctness  of  Brunner's  theory  in  this  respect,  as 
relating  to  the  Codex  Cavensis  material,  has  arisen  between  Brandileone 
and  Schupfer,  two  distinguished  Italian  legal  historians :  Brandileone,  Le 
cosl  dette  clausole  al  portatore  nei  document!  medievali  italiani  (in 
Rivista  di  diritto  commerciale  e  marittimo,  1903,  vol.  I,  No.  5) ;  Schupfer, 
II  diritto  privato  dei  popoli  germanici  con  speciale  riguardo  all'  Italia, 
1907,  vol.  I,  p.  214.  —  EDS.] 

a  Loersch  and  Schroder,  No.  317. 


60.    JENKS:  NEGOTIABLE  INSTRUMENTS     65 

and,  to  enforce  this  clause,  Letters  of  Attorney,  of 
which  examples  are  given  by  Madox,  2  were  doubtless  neces- 
sary. But  it  is  time  that  we  turn  to  the  other  side  of  the 
difficulty. 

All  early  systems  of  law  require  for  the  transfer  of  rights 
A  formal  investiture  or  corporeal  handling  in  the  presence 
of  the  assembled  community.  Long  after  this  corporeal 
transfer  has  become  a  mere  form,  symbolized  by  such  sur- 
vivals as  the  turf,  clod,  twig,  knife,  staff,  &c.,  it  continues 
to  exercise  a  practical  influence  on  conveyancing  law.  To 
the  conservative  force  with  which  medieval  Germany  held  to 
the  Auflassung,  a  ceremony  at  first  very  real  and  practical, 
afterwards  merely  formal,  modern  Germany  probably  owes 
her  important  Grundbuch  system. 

It  is,  therefore,  of  great  interest  to  notice  that,  while  the 
other  Teutonic  races  retained  their  symbolic  investiture  at 
least  until  the  eleventh  century,  the  Lombards,  and  their 
kindred  Anglo-Saxons,  had  adopted  the  simpler  and  more 
modern  form  of  traditio  per  cartam  at  a  much  earlier  date. 
The  Anglo-Saxon  conveyance  by  boc  or  charter  is  found  as 
early  as  the  ninth  century.3  In  a  Lombard  document  of  the 
eighth  century,  to  which  we  have  previously  referred,  the 
donor  of  an  advowson  not  merely  transfers  it  by  traditio 
cartae,  but  recites  that  he  obtained  his  title  in  the  same  way.4 
Perhaps  the  clearest  evidence  of  the  distinction  is  to  be  found 
in  the  directions  to  conveyancers  contained  in  the  Cartularium 
Langobardicum  of  the  eleventh  century.5  The  imaginary 
pupil  is  directed  to  tradere  per  hanc  pergamenam  cartam 
venditionis  (such  and  such  land)  ad  Johannem,  quod  dehinc 
in  antea  a  presenti  die  proprietario  nomine  faciat  ipse  et  sui 

1  See  Madox,  Formulare  Anglicanum,  Nos.  641-645,  647-649,  &c.    There 
is  a  bond  in  27  Hen.  VIII.  made  payable  to  the  king,  his  executors  or 
assigns,  but  the  exception  in  favour  of  the  crown  is  well  known. 

2  E.  g.  Nos.  107,  119. 

*Earle,  Land  Charters,  pp.  130,  139,  141,  &c.  These  are  grants  by 
private  owners.  Royal  and  episcopal  grants  by  boc  occur  much  earlier, 
and  there  is  a  doubtful  instance  of  a  private  grant  in  692  (p.  13).  The 
royal  consent,  however,  seems  to  have  been  required  even  for  private 
grants.  For  other  early  examples,  cf.  Birch,  Cartularium  Saxonicum, 
Nos.  30,  57,  81,  &c. 

*  Loersch  and  Schroder,  No.  32. 

6  Monumenta  Germaniae,  Leges,  iv.  p.  595.  (Extracts  given  in  Loersch 
and  Schroder,  pp.  69-70.) 


66  F.     COMMERCIAL    LAW 

heredes  aut  cui  ipse  dederint.  The  same  practice  is  to  hold 
in  the  case  of  a  Roman.  But  if  the  conveying  party  be  a 
Salian,  a  Ripuarian,  a  Frank,  a  Goth,  or  an  Alamman,  the 
charter  is  to  be  placed  on  the  ground,  and  upon  it  laid  the 
knife,  notched  stick,  clod,  twig,  &C.1  The  purchaser  then 
takes  up  the  charter  (levat  cartam). 

In  some  obscure  way  this  peculiar  difference  appears  to 
have  connected  itself  with  the  early  Lombard  law  of  contract. 
Whatever  may  be  the  philosophical  explanation  of  the  ap- 
pearance of  the  contract  as  a  legal  phenomenon,  it  is  pretty 
certain  that  it  represents  historically  a  compromise  between 
litigants,  secured  by  oath,  pledges,  and  (generally)  hostages. 
The  promisor  is  under  no  direct  liability  to  the  promisee ; 
the  latter  must  enforce  his  security  either  against  the  wadia 
or  the  fidejussores.*  The  course  of  the  Lombard  law  seems 
to  have  been  this.  Being  familiar  with  the  traditio  per  car- 
tam in  conveyances,  it  allowed  the  bond  or  document  to  act 
as  the  wadium  in  contracts.  Naturally  the  particulars  of  the 
transaction  are  transcribed  into  the  document,  but  the  early 
cautio  is  not  (according  to  the  English  dictum)  the  contract 
itself,  nor  even  evidence  of  the  contract,  but,  literally,  the 
security  for  the  contract.3  Two  points  illustrate  this  truth 
forcibly,  and  one  of  them  is  of  direct  interest  for  the  history 
of  negotiable  instruments. 

In  the  first  place  it  will  be  observed  that  nearly  all  the 
early  examples  of  cautio  are  penal  stipulations.  The  Cartu- 
larium  Langobardicum  says  expressly  —  Et  in  omnium  fine 
traditionis  adde:  et  insuper  mitte  poenam  stipulationis  nom- 
ine que  est,  &c.4  But  we  need  not  rely  on  dicta.  The  col- 
lections of  Lucca  and  Salerno  are  full  of  eighth  and  ninth 
century  examples. 6  In  fact  we  might  almost  lay  it  down  that 

1  If  the  purchaser  were  an  Alamman  there  was  added  the  mysterious 
wandilanc. 

8  This  is  evident  from  the  early  example  of  the  Edict  of  Rothar,  caps. 
359-366.  (Mon.  Germ.  Leges,  iv.  82.) 

8  The  carta  is  sometimes  expressly  described  as  firmitas  (Memorie  di 
Lucca,  v.  2,  No.  14).  [The  position  of  the  carta  in  conveyances  is  shown 
by  the  fact  that  it  was  not  written  on  till  after  the  traditio.] 

4  Loersch  and  Schroder,  p.  69. 

6  Memorie  di  Lucca,  v.  2,  Nos.  18,  24,  26,  28,  30,  31,  33-37,  39,  44-46,  &c. 
Codex  Cavensis,  Vol.  i.,  Nos.  11,  13,  14,  15,  16,  20,  24,  26,  &c.  The 
penalty  was  usually  in  duplum,  but  a  fixed  sum  was  frequently  named. 


50.    JENKS:  NEGOTIABLE  INSTRUMENTS     67 

no  transaction  was  completed  at  that  time  without  a  penal 
stipulation. 

The  other  point  to  notice  is  the  extreme  care  with  which 
many  early  cautiones  stipulate  for  the  return  of  the  docu- 
ment on  payment.  Of  course  this  clause  only  occurs  in  actual 
bonds  for  the  payment  of  money,  not  in  conveyances  contain- 
ing merely  penal  stipulations.  But  as  early  as  the  time  of 
the  Angevin  and  Marculfian  Formularies  (seventh  and  early 
eighth  centuries)  we  find  the  clause  et  caucionem  meam  re- 
cipere  faciam,1  or  even,  cautionem  absque  ulla  evacuario 
intercedente  recipiamus.2  The  evacuaria  or  Todbrief  was  a 
formal  document  cancelling  a  bond  alleged  by  the  person 
claiming  on  it  to  have  been  lost.  There  is  an  example  so  late 
as  the  fourteenth  century,3  and  as  it  was  issued  by  the  Duke 
of  Austria  himself  (though  he  was  only  concerned  in  the 
matter  as  protector  of  the  Jew  creditor)  we  may  gather  that 
great  importance  was  attached  to  the  procedure.  But,  his- 
torically speaking,  the  stress  laid  upon  the  production  of 
the  cautio  is  easily  demonstrable,  and  quite  natural.  Several 
of  the  Lombard  documents  of  the  ninth  century  make  the 
express  condition  —  et  earn  (paginam)  nobis  in  judicio  osti- 
derit,*  or,  simply,  et  earn  mihi  ostenderit.5  If  the  creditor 
could  not  produce  the  pledge,  the  presumption  was  that  he 
had  realized  on  it ;  and,  as  the  debtor  was  under  no  personal 
obligation  to  pay  him,  he  naturally  declined  to  do  so  except 
in  return  for  his  wadium. 

It  is  hardly  going  too  far  to  say  that  this  is  at  least  a 
plausible  explanation  of  the  doctrine  of  presentation.  The 
necessity  for  the  production  of  a  bond  (the  profert  of  English 
law)  had  become  established  before  the  appearance  of  bills 
of  exchange.  Qui  presentem  liter  am  PRESENTAVERIT,S  joft 
den  ghenen  die  d#se  lettren  bringhen  sal. 7  Thus  the  existence 
of  the  fourth  or  presenting  party,  who  appeared  in  our  first 

lLoersch  and  Schroder,  No.  IT. 
9Ib.  No.  18. 

8Ib.  No.  213.  For  earlier  examples  see  Roziere,  Recueil  G6n6ral  des 
Formules,  I,  Nos.  378-382. 

*Memorie  di  Lucca,  v.  2,  No.  424. 
5Tb.  No.  285;   v.  3,  Nos.  1107,  1148. 
6  Loersch  and  Schroder,  No.  159. 
7Ib.  No.  161. 


68  V.     COMMERCIAL    LAW 

examples,1  is  amply  accounted  for.  The  praesenteerder  and 
the  meister  van  den  brieff  continue  as  separate  persons  in  the 
Netherlands  till  the  beginning  of  the  seventeenth  century.  2 

We  have  seen  already  that,  by  the  end  of  the  fifteenth  cen- 
tury, presentation  of  Irihaber papier  was  held  to  be  sufficient 
without  further  proof  of  title.  This  had,  probably,  always 
been  the  Lombard  rule,  but  the  northern  Germans  had  long 
held  to  the  necessity  for  a  special  Willebrief,  or  documentary 
transfer.  There  was  indeed  a  theory  that  this  document 
must  have  three  seals,  that  of  the  transferor  and  those  of 
two  witnesses.3  But  the  Lombard  rule  ultimately  prevailed. 

We  have  now  arrived  at  the  point  at  which  biology  passes 
into  history.  The  mercantile  world  is  familiar,  in  the  middle 
of  the  thirteenth  century,  with  bonds  or  acknowledgments  of 
debts  which,  though  given  originally  to  A,  can  be  enforced  by 
B,  upon  his  production  of  the  original  document,  with  or 
without  document  of  transfer.  In  the  middle  of  the  four- 
teenth century  the  mercantile  world  is  familiar  with  bills  of 
exchange  in  the  modern  sense.  How  was  the  intermediate 
step  taken? 

Without  professing  any  detailed  knowledge  of  the  transi- 
tion process,  it  is  possible  for  us  to  lay  our  hands  on  instru- 
ments which  are  clearly  in  the  transition-stage.  Let  us  read 
this  document,  dated  124%?  from  the  archives  of  Mar- 
seilles :  — 

Ego  W.  de  sancto  Siro,  civis  Massilie,  confiteor  et  recog- 
nosco  vobis  Guidaloto  Guidi  et  Rainerio  Rollandi,  Senen- 
sibus,  me  habuisse  et  recepisse  ex  causa  PERMUTACIONIS  SEU 
CAMBII  a  vobis  £216  13s.  4<d.,  pisanorum  in  Pisis,  renuncians^ 
$c.;  pro  quibus  £216  13s.  4d.,  dicte  monete  promicto  vobis 
per  stipulationem  dare  et  solvere  vobis  vel  Dono  de  Piloso  vel 
Raimacho  de  Balchi  consociis  vestris  VEL  cui  MANDAVERITIS 
100Z.  turonensium  apud  Parisius  in  medio  mense  aprilis  et 
omnes  depensas  et  dampna  et  gravamina  quae  pro  dicto 

1  Ante,  p.  55. 

2  Coutumes  d'Anvers,  vol.  iv.  p.  32,  art.  42  and  43. 
8Loersch  and  Schroder,  No.  275. 

4 1.  e.  probably  renuncians  exceptionem  pecuniae  non  numeratae  vel 
aliam  exceptionem  de  jure  competentem.  (See  Bolognese  Ordinance, 
xliii.  §  1,  Martens,  App.  p.  56.) 


50.    JENKS:  NEGOTIABLE  INSTRUMENTS     69 

debito  petendo  feceritis  vel  incurreritis  ultra  terminum 
supradictum  credendo  inde  vobis  et  vestris  vestro  simplici 
verbo  absque  testibus  et  alia  probatione;  obligans,  fyc.  Ac- 
turn  Massiliae  JUXTA  TABULAS  CAMPSORUM.  Testes  (4). 
Factum  fuit  inde  PUBLICUM  INSTRUMENTUM.* 

Thirty  years  later  comes  the  following  document  from  the 
archives  of  Koln :  — 

Walleramus  dictus  de  Juliaco  viris  prudentibus  et  amicis 
suis  carissimis,  judicibus,  scabinis,  magistris  civium  et  uni- 
versis  civibus  Coloniensibus  quicquid  potent  dilectionis  et 
.honoris.  Significo  vobis  presentibus,  quod  ratum  et  gratum 
habeo,  quod  vos  detis  et  assignetis  centum  marcas,  quas  michi 
solvere  tenemini  in  festo  beato  Martini  hiemalis  nunc  futuro, 
Friderico  dicto  Schechtere  civi  Coloniensi,  et  vos  clamo  per 
praesentes  quitos  et  absolutos  de  solutione  dictarum  centum 
marcarum  in  dicto  termine  facienda.  In  cuius  rei  testimo- 
nium  sigillum  meum  duxi  praesentibus  apponendum.  Datum 
^Colonie  6  kalendas  Maii,  anno  Domini,  1279. 2 

Once  more :  — 

Viris  discretis  dominis  Hermanno  et  Thidemanno  de  Waren- 
dorp9  consulibus  Lubicensibus,  Hmricus  de  Lon  necnon 
Johannes  Pape  salutem  in  omni  bono.  Comparavimus  et 
emimus  de  Henrico  Longo,  fratre  Johannis  Longi,  10  libras 
grossorum.  Promittimus  sibi  solvere  pro  quilibet  librum  9 
marcas  et  12  denarios  in  14  die  POST  VISIONEM  PRESENTIS. 
Petimus  ut  dictam  pecuniam  solvatis  nomine  praedicti  Hinrici 
Johanni  fratri  suo.  Valete  semper.  Datum  in  cena  domini. 
Petimus,  ut  hiis  et  aliis  bene  persolvatur. 3 

This  last  example  is  of  the  year  1341.  two  years  later  than 
the  first  true  Bill  of  Exchange  quoted  above.4  The  Mar- 
seilles document  is  by  far  the  most  valuable,  as  it  shows  us, 
almost  beyond  a  doubt,  the  nature  of  the  process  which  was 
going  on.  The  purchasers  of  the  bill  do  not  wish  merely 
to  change  their  money  from  Pisan  to  French  coin ;  they  wish 
also  to  have  it  remitted  to  Paris.  W.  de  St.  Cyr  is  a  profes- 
sional campsor  or  dealer  in  money,  possibly  with  the  actual 

1  Quoted  in  Brunner,  Das  franzosische  Inhaberpapier,  p.  73. 
8Loersch  and  Schroder,  No.  147. 
3Ib.  No.  196. 
4  Ante,  p.  55. 


70  V.     COMMERCIAL    LAW 

right  of  coinage.  He  receives  from  Guidi  and  his  partners 
a  sum  of  Pisan  money,  and  gives  them,  as  we  should  say,  a 
bill  on  Paris  payable  to  order.  The  bill  is  attested  by  wit- 
nesses and  becomes  a  public  document  (publicum  instrumen- 
tum).  The  whole  transaction  is  in  striking  accordance  with 
the  Piacenza  Ordinance  of  1391, l  which  compels  campsores 
to  give  a  written  acknowledgment  to  their  depositors  confess* 
ing  that  they  have  received  the  money  deposited  with  them, 
and  declaring  that  the  acknowledgment,  as  well  as  the  entries 
in  the  books  of  the  campsores9  shall  be  evidence  in  favour  of 
the  creditors,  sicut  crederetur  et  fides  daretur  si  dicta  scrip- 
tura  et  dicti  libri  essent  solemne  PUBLICUM  INSTRUMENTUM* 
Nothing  could,  in  fact,  be  more  tempting,  and  nothing  more 
dangerous,  than  to  treat  the  Bill  of  Exchange  as  the  coun- 
terpart of  the  old  Roman  literal  contract. 

Of  the  endless  points  which  present  themselves  with  regard 
to  the  law  of  negotiable  instruments  in  the  Middle  Ages,  only 
one  can  be  touched  upon  here.  We  have  seen  that,  by  the  end 
of  the  fifteenth  century,  the  holder  of  a  bond  or  bill,  contain- 
ing the  Inhaberklausel,  was  not  obliged  to  show  his  title. 
Against  this  rather  advanced  doctrine  the  French  writers  of 
the  sixteenth  century  protested,  with  remarkable  success.2 
Founding  themselves  on  the  maxim  —  un  simple  transport  ne 
saisit  point  —  and  carefully  cutting  out  the  following  words 
—  sans  apprehension  —  they  succeeded  in  compelling  the 
transferee  of  a  bill  of  exchange  to  produce  evidence  of  his 
title.3  This  reactionary  step  seems  to  have  led,  in  the  first 
place,  to  the  introduction  of  bills  drawn  in  blank  (promesses 
en  blanc),  which  were  used  for  the  concealment  of  usurious 
transactions, 4  and  were  on  that  account  forbidden  by  various 
Parliamentary  arrets  of  the  early  seventeenth  century.  Then 
recourse  seems  to  have  been  had  to  the  old  French  form  of 
order  or  mandat  —  a  son  command,  a  son  command  certain,5 
&c.  —  of  which  examples  are  found  in  the  thirteenth  century. 
Naturally  this  form  required  some  evidence  of  title,  but  the 

1  Martens,  App.  p.  18. 

2  Das  franzosische  Inhaberpapier,  p.  68. 

3  Ibid. 

*Tit.  vi.  of  the  Ordinance  of  1673  lays   down  specific  rules  on  the 
subject  of  Les  Inter  fas  du  change  et  du  rechange. 
5  Quoted  in  Das  franzosische  Inhaberpapier,  p.  74. 


50.    JENKS:  NEGOTIABLE  INSTRUMENTS     71 

practice  .of  indorsement  had  fully  established  itself  by  the 
middle  of  the  seventeenth  century.  The  great  Ordonnance 
de  Commerce  of  1673  1  distinguishes  carefully  between  (a) 
endossement,  the  mere  signature  of  the  payee,  which  only 
made  the  holder  an  agent,  and  (b)  ordre,  containing  the  date 
and  the  name  of  the  purchaser  (qui  a  paye  la  valeur  en  ar- 
gent, marchandise,  ou  autrement),  which  made  the  indorsee 
full  owner,  sans  qu'il  ait  besoin  de  transport,  ni  de  significa- 
tion. How  the  practice  of  indorsement  was  introduced  it  is 
difficult  to  prove;  but  it  is  easy  to  see  that  the  persistent 
use  of  the  terms  brief,  lettre,  might  keep  alive  the  idea  of  the 
original  form  of  the  document,  and  thus  a  writing  which  was, 
in  effect,  an  address  to  a  new  holder,  would  come  naturally 
where  the  address  of  a  letter  usually  came  —  i.  e.  on  the  back. 
We  have  seen  already,  that  in  the  earliest  examples  of  bills 
of  exchange  the  name  of  the  drawee  was  indorsed. 

This  paper  merely  attempts  to  put  together  a  few  incidents 
in  the  early  history  of  the  negotiable  instrument.  It  does  not 
pretend  to  ascertain  its  origin.  Claims  have  been  made,  with 
much  plausibility,2  for  a  Jewish  parentage;  and  Oriental 
evidence  must  certainly  be  examined  with  care  before  it  is 
rejected.  But  such  a  task  requires  scholarship. 

^sambard  et  De  Crusy,  xix.  p.  100. 

*  Auerbach,  Judische  Obligationenrecht,  i.  283  and  note. 


51.  PROMISSORY  NOTES  BEFORE  AND  AFTER 
LORD  HOLT1 

BY  WILLIAM  CRANCH  2 

THE  question  of  liability  of  a  remote  indorser  of  a  prom- 
issory note,  in  Virginia,  came  before  the  court  below, 
about  a  year  before  their  decision  in  the  present  case.  It  was 
in  the  case  of  Dunlop  v.  Silver  and  others,  argued  at  July 
term  1801,  in  Alexandria.  The  court  took  the  vacation  to 
consider  the  case,  and  examine  the  law,  and,  at  the  succeeding 
term,  judgment  was  rendered  for  the  plaintiff  by  KILTY,  Chief 
Judge,  and  CRANCH,  Assistant  Judge,  contrary  to  the  opin- 
ion of  Judge  MARSHALL.  .  .  . 

The  plea  was  non  a$sumpsit,  and  a  verdict  was  taken  for 
the  plaintiff  subject  to  the  opinion  of  the  court,  upon  the 
point,  whether  the  holder  could  maintain  an  action  against 
the  remote  indorser  of  a  promissory  note. 

The  statute  3  &  4<  Ann.  c.  9,  respecting  promissory  notes, 
is  not  in  force  in  Virginia ;  but  there  is  an  act  of  assembly, 
1786,  c.  £9,  by  which  it  is  enacted,  that  "  an  action  of  debt 
may  be  maintained  upon  a  note  or  writing,  by  which  the 
person  signing  the  same  shall  promise  or  oblige  himself  to 
pay  a  sum  of  money,  or  quantity  of  tobacco,  to  another ;  " 

1This  Essay  first  appeared  as  Note  A  to  the  case  of  Mandeville  v. 
Riddle,  in  the  Appendix  to  Cranch's  Reports  of  Cases  in  the  Supreme 
Court  of  the  United  States,  vol.  I,  1804.  Large  portions  have  been 
omitted,  chiefly  the  detailed  quotations  of  cases. 

2 1769-1855.  ^Harvard  College,  A.  B.  1787,  LL.  D.  1829;  admitted  to 
the  Massachusetts  Bar  in  1790,  and  to  the  Washington  Bar  in  1794; 
assistant  judge  of  the  Circuit  Court  of  the  District  of  Columbia,  1801- 
1805;  chief  justice  of  the  same,  1805-1855. 

Other  Publications:  Reports  of  Cases  in  the  Circuit  Courts  of  the 
District  of  Columbia  (6  volumes)  and  in  the  Supreme  Court  of  the 
United  States  (9  volumes),  1801-1841;  author  of  a  code  of  laws  for  the 
District. 


61.     CRANCH:    PROMISSORY   NOTES          73 

and  that  "  assignments  of  bonds,  bills  and  promissory  notes, 
and  other  writings  obligatory,  for  payment  of  money  or 
tobacco,  shall  be  valid;  and  an  assignee  of  any  such  may, 
thereupon,  maintain  an  action  of  debt  in  his  own  name ;  but 
shall  allow  all  just  discounts,  not  only  against  himself,  but 
against  the  assignor,  before  notice  of  the  assignment  was 
given  to  the  defendant." 

It  will  be  observed,  that  this  act  gives  no  action  against 
the  indorser  or  assignor,  nor  does  it  make  any  distinction 
between  notes  payable  to  order,  and  those  payable  only  to 
the  payee.  Hence,  perhaps,  it  may  be  inferred,  that  it  left 
such  instruments  as  the  parties  themselves,  by  the  original 
contract,  had  made  (or  intended  to  make)  negotiable,  to  be 
governed  by  such  principles  of  law  as  may  be  applicable  to 
those  instruments.  At  any  rate,  it  seemed  to  be  admitted, 
that  the  act  did  not  affect  the  present  case. 

The  principal  question,  then,  is,  whether  this  action  could 
have  been  supported  in  England,  before  the  statute  of  Anne. 

I.  In  order  to  ascertain  how  the  law  stood  before  that 
statute,  it  may  be  necessary  to  examine  how  far  the  custom 
of  merchants,  or  the  lex  mercatoria,  was  recognised  by  the 
courts  of  justice,  and  by  what  means  the  common-law  forms 
of  judicial  proceedings  were  adapted  to  its  principles.  .  .  . 

The  custom  of  merchants  is  mentioned  in  34  Hen.  VIII., 
cited  in  Bro.  Abr.,  tit.  Customs,  pi.  59,  where  it  was  pleaded, 
as  a  custom  between  merchants  throughout  the  whole  realm, 
and  the  plea  was  adjudged  bad,  because  a  custom  throughout 
the  whole  realm  was  the  common  law.  And  for  a  long  time, 
it  was  thought  necessary  to  plead  it  as  a  custom  between 
merchants  of  particular  places,  viz.,  as  a  custom  among  mer- 
chants residing  in  London  and  merchants  in  Hamburg,  &c. 
By  degrees,  however,  the  courts  began  to  consider  it  as  a 
general  custom.  Co.  Litt.  182 ;  2  Inst.  404.  .  .  . 

But  after  this,  in  the  year  1640,  in  Eaglechild's  Case,  re- 
ported in  Hetly  167,  and  Litt.  363,  6  Car.  I.,  it  was  said  to 
have  been  ruled  (in  B.  R.),  "  that  upon  a  bill  of  exchange  be- 
tween party  and  party,  who  were  not  merchants,  there  cannot 
be  a  declaration  upon  the  law-merchant ;  but  there  may  be  a 
declaration  upon  assumpsit,  and  give  the  acceptance  of  the 


74  V.     COMMERCIAL    LAW 

bill  in  evidence."  This  decision  seemed  to  confine  the  opera- 
tion of  the  law-merchant,  not  to  contracts  of  a  certain  de- 
scription, but  to  the  persons  of  merchants:  whereas,  the 
custom  of  merchants  is  nothing  more  than  a  rule  of  construc- 
tion of  certain  contracts.  Jac.  Law  Diet.  (Toml.  edit.)  tit. 
Custom  of  Merchants.  Eaglechild's  Case,  however,  was  over- 
ruled in  the  18  Car.  II.,  B.  R.  (1666),  in  the  case  of 
Woodward  v.  Rowe,  2  Keb.  105,  132,  which  was  an  action 
by  the  indorsee  against  the  drawer  of  a  bill  of  exchange.  .  .  . 
It  was  afterwards  moved  again,  that  this  "  is  only  a  particu- 
lar custom  among  merchants,  and  not  common  law;  but, 
per  curiam,  the  law  of  merchants  is  the  law  of  the  land ;  and 
the  custom  is  good  enough,  generally,  for  any  man,  without 
naming  him  merchant;  judgment  pro  plaintiff,  per  totam 
curiam,  and  they  will  intend  that  he,  of  whom  the  value  is 
said  to  be  received  by  the  defendant,  was  the  plaintiff's 
servant."  .  .  . 

In  the  year  1760  (1  Geo.  III.),  in  the  case  of  Edie  v.  The 
East  India  Company,  %  Burr.  1226,  Mr.  Justice  FOSTER  said, 
"  Much  has  been  said  about  the  custom  of  merchants ;  but 
the  custom  of  merchants,  or  law  of  merchants,  is  the  law  of 
the  kingdom,  and  is  part  of  the  common  law.  People  do  not 
sufficiently  distinguish  between  customs  of  different  sorts. 
The  true  distinction  is,  between  general  customs  (which  are 
part  of  the  common  law)  and  local  customs  (which  are  not 
so).  This  custom  of  merchants  is  the  general  law  of  the 
kingdom,  part  of  the  common  law,  and,  therefore,  ought  not 
to  have  been  left  to  the  jury,  after  it  has  been  already  settled 
by  judicial  determinations."  ...  In  the  case  of  Pillans  # 
Rose  v.  Van  Mierop  cy  Hopkins,  3  Burr.  1669,  Lord  MANS- 
FIELD says,  "  the  law  of  merchants  and  the  law  of  the  land 
is  the  same ;  a  witness  cannot  be  admitted  to  prove  the  law 
of  merchants ;  we  must  consider  it  as  a  point  of  law."  .  .  . 

This  chronological  list  of  authorities  tends  to  elucidate  the 
manner  in  which  the  custom  of  merchants  gained  an  establish- 
ment in  the  courts  of  law,  as  part  of  the  common  or  general 
law  of  the  land ;  and  shows  that  it  ought  not  to  be  considered 
as  a  system  contrary  to  the  common  law,  but  as  an  essential 
constituent  part  of  it,  and  that  it  always  was  of  co-equal 


51.     CRANCH:    PROMISSORY    NOTES          75 

authority  so  far  as  subjects  existed  for  it  to  act  upon.  The 
reason  why  it  was  not  recognised  by  the  courts,  and  reduced 
to  a  regular  system,  as  soon  as  the  laws  relating  to  real  estate, 
and  the  pleas  of  the  crown,  seems  to  be,  that  in  ancient  times, 
the  questions  of  a  mercantile  nature,  in  the  courts  of  justice, 
bore  no  proportion  to  those  relating  to  the  former  sub- 
jects. .  .  . 

Another  reason,  perhaps,  why  we  see  so  much  tardiness  in 
the  courts  in  admitting  the  principles  of  commercial  law  in 
practice,  has  been  the  obstinacy  of  judicial  forms  of  process, 
and  the  difficulty  of  adapting  them  to  those  principles  which 
were  not  judicially  established,  until  after  those  forms  had 
acquired  a  kind  of  sanctity  from  their  long  use.  Much  of 
the  stability  of  the  English  jurisprudence  is  certainly  to  be 
attributed  to  the  permanency  of  those  forms ;  and  although 
it  is  right,  that  established  forms  should  be  respected,  yet 
it  must  be  acknowledged,  that  they  have,  in  some  measure, 
obstructed  that  gradual  amelioration  of  the  jurisprudence 
of  the  country,  which  the  progressive  improvement  of  the 
state  of  civil  society  demanded.  It  required  the  transcendent 
talents,  and  the  confidence  in  those  talents,  which  were  pos- 
sessed by  Lord  MANSFIELD  to  remove  those  obstructions. 
When  he  ascended  the  bench,  he  found  justice  fettered  in  the 
forms  of  law.  It  was  his  task  to  burst  those  fetters,  and  to 
transform  the  chains  into  instruments  of  substantial  justice. 
From  that  time,  a  new  aera  commenced  in  the  history  of  Eng- 
lish jurisprudence.  His  sagacity  discovered  those  intermedi- 
ate terms,  those  minor  propositions,  which  seemed  wanting 
to  connect  the  newly-developed  principles  of  commercial  law 
with  the  ancient  doctrines  of  the  common  law,  and  to  adapt 
the  accustomed  forms  to  the  great  and  important  purposes 
of  substantial  justice,  in  mercantile  transactions. 

II.  Forms  of  pleading  often  tend  to  elucidate  the  law. 
By  observing  the  forms  of  declarations,  which  have,  from 
time  to  time,  been  adapted,  in  actions  upon  bills  of  exchange, 
we  may,  perhaps,  discover  the  steps  by  which  the  courts 
allowed  actions  to  be  brought  upon  them,  as  substantive 
causes  of  action,  without  alleging  any  consideration  for  the 
making  or  accepting  them.  The  first  forms  which  were  used, 


76  V.     COMMERCIAL    LAW 

take  no  notice  of  the  custom  of  merchants,  as  creating  a  lia- 
bility distinct  from  that  which  arises  at  common  law ;  but  by 
making  use  of  several  fictions,  bring  the  case  within  the 
general  principles  of  actions  of  assumpsit.  The  oldest  form 
which  is  recollected,  is  to  be  found  in  Rastell's  Entries,  fol. 
10, (a)  under  the  head  "  Action  on  the  Case  upon  promise 
to  pay  money."  Rastell  finished  his  book,  as  appears  by  his 
preface,  on  the  28th  of  March  1564,  and  gathered  his  forms 
from  four  old  books  of  precedents,  then  existing.  This  decla- 
ration sets  forth  that 

A.  complains  of  B.  &c.,  for  that  whereas,  the  said  A.,  by  a  cer- 
tain I.  C.,  his  sufficient  attorney,  factor  and  deputy  in  this 
behalf,  on  such  a  day  and  year,  at  L.,  at  the  special  instance  and 
request  of  the  said  B.,  had  delivered  to  the  said  B.,  by  the  hand 
of  the  said  I.  C.,  to  the  proper  use  of  the  said  B.,  110L  8s.  4>d. 
lawful  money  of  England;  for  which  said  HO/.  8*.  4>d.,  so  to  the 
said  B.  delivered,  he,  the  said  B.,  then  and  there,  to  the  said  I.  C. 
(then  being  the  sufficient  attorney,  factor  and  deputy  of  the  said 
A.  in  this  behalf)  faithfully  promised  and  undertook,  that  a  cer- 
tain John  of  G.  well  and  faithfully  would  content  and  pay  to 
Reginald  S.  (on  such  a  day  and  year,  and  always  afterwards, 
hitherto  the  sufficient  deputy,  factor  and  attorney  of  the  said  A. 
in  this  behalf),  443  2-3  ducats,  on  a  certain  day  in  the  declaration 
mentioned.  And  if  the  aforesaid  John  of  G.  should  not  pay  and 
content  the  said  Reginald  S.  the  said  443  2-3  ducats,  at  the  time 
above  limited,  that  then  the  said  B.  would  well  and  faithfully  pay 
and  content  the  said  A.  110Z.  8*.  4>d.,  lawful  money  of  England, 
with  all  damages  and  interest  thereof,  whenever  he  should  be 
thereunto  by  the  said  A.  requested.  It  then  avers,  that  the  said 
443  2-3  ducats  were  of  the  value  of  110?.  8*.  4>d.,  lawful  money 
of  England,  that  John  of  G.  had  not  paid  the  ducats  to  Reginald 
S.,  and  that  if  he  had  paid  them  "  to  the  said  R.,  I.  B.,  and 
associates,  or  to  either  of  them,  then  the  said  443  2-3  ducats 
would  have  come  to  the  benefit  and  profit  of  the  said  A.  Yet  the 
said  B.,  contriving,  the  aforesaid  A.,  of  the  said  110Z.  8*.  4>d.  and 
of  the  damages  and  interest  thereof,  falsely  and  subtly  to  deceive 
and  defraud,  the  same,  or  any  part  thereof,  to  the  said  A.,  al- 
though often  thereunto  required,  according  to  his  promise  and 
undertaking  aforesaid,  had  not  paid,  or  in  any  manner  contented, 
whereby  the  said  A.,  not  only  the  profit  and  gain  which  he,  the 
said  A.,  with  the  said  110Z.  8*.  4>d.,  in  lawfully  bargaining  and 
carrying  on  commerce  might  have  acquired,  hath  lost;  but  also 
the  said  A.,  in  his  credit  towards  diverse  subjects  of  our  lord  the 
king  (especially  towards  R.  H.  and  I.  A.,  to  whom  the  said  A. 


51.  CRANCH:  PROMISSORY  NOTES    77 

was  indebted  in  the  sum  of  110Z.  8*.  4d.f  and  to  whom  the  said  A. 
had  promised  to  pay  the  same  110Z.  8*.  4<d.,  at  a  day  now  past, 
in  the  hope  of  a  faithful  performance  of  the  promise  and  under- 
taking aforesaid),  is  much  injured,  to  his  damage,"  &c. 

This  declaration  seems  to  have  been  by  the  indorsee  of  a  bill  of 
exchange,  against  the  drawer.  For  although  nothing  is  said  of 
a  bill  of  exchange,  or  of  the  custom  of  merchants,  yet  the  facts 
stated  will  apply  to  no  other  transaction.  It  appears,  that  ducats 
were  to  be  given  for  pounds  sterling;  this  was  in  fact  an  ex- 
change. Again,  the  defendant  promised  to  repay  the  original 
money  advanced,  with  all  damages  and  interest ;  this  is  the  precise 
obligation  of  the  drawer  of  a  bill  of  exchange,  according  to  the 
law-merchant.  , 


In  the  oldest  books  extant  in  the  English  language  on  the 
subject  of  the  law-merchant,  viz.,  Malynes'  Lex  Mercatoria, 
written  in  1622,  and  Marius's  Advice,  which  appeared  in 
1651,  it  is  said,  tbat  regularly  there  are  four  persons  con- 
cerned in  the  negotiating  a  bill  of  exchange.  A.,  a  merchant 
in  Hamburg,  wanting  to  remit  money  to  D.,  in  England,  pays 
his  money  to  B.,  a  banker  in  Hamburg,  wbo  draws  a  bill  on 
C.,  his  correspondent  or  factor  in  England,  payable  to  D., 
in  England,  for  value  received  of  A.  But  in  the  declaration 
above  recited,  there  are  five  persons  concerned ;  and  if,  as  is 
supposed,  tbat  transaction  was  upon  a  bill  of  exchange,  the 
fifth  person  must  have  been  an  indorsee,  or  assignee  of  the 
bill.  Another  reason  for  supposing  this  to  be  the  case,  is, 
that  Rastell  has  no  other  form  of  a  declaration  by  an  indorsee, 
although  he  has  two  by  the  payee,  viz.,  one  against  an  ac- 
ceptor and  one  against  a  drawer.  .  .  . 

These  are  the  greater  part  of  the  precedents  of  declara- 
tions on  bills  of  exchange,  to  be  found  in  the  printed  books, 
before  the  statute  of  Anne;  and  in  all  of  them,  those  facts 
are  stated  which  bring  the  case  within  the  principles  wbich 
were  considered  as  necessary  to  support  the  action  of  assump- 
sit,  in  general  cases,  at  common  law.  In  the  more  modern 

(forms,  tbe  liability  of  the  defendant,  under  the  custom,  is 
considered  as  a  sufficient  consideration  to  raise  an  assumpsit, 
without  averring  those  intermediate  steps  which  may  be  con- 
sidered as  the  links  of  tbe  chain  of  privity  which  connects  the 
alaintiff  with  the  defendant.  The  reason  of  tbis  change  of 


78  V.     COMMERCIAL    LAW 

form  was,  probably,  the  consideration  that  those  intermediate 
links  were  only  fictions,  or  presumptions  of  law,  which  were 
never  necessary  to  be  stated.  .  .  . 

III.  Having  thus  seen  how  the  law-merchant  was  under- 
stood, at  the  time  of  the  statute  of  Anne,  and  the  manner  in 
which  it  was  applied  to  the  forms  of  judicial  process,  it  will 
now  be  necessary  to  inquire,  at  what  time  the  law-merchant 
was  considered  as  applicable  to  inland  bills,  and  what  was 
the  law  respecting  such  bills  and  promissory  notes,  prior  to 
the  statutes  of  9  &  10  Wm.  III.,  c.  17,  and  3  &  4  Ann.,  c.  9. 

It  is  not  ascertained  exactly  at  what  time  inland  bills  first 
came  into  use  in  England,  or  at  what  period  they  were  first 
considered  as  entitled  to  the  privileges  of  bills  of  exchange, 
under  the  law-merchant.  But  there  was  a  time,  when  the 
law-merchant  was  considered  as  "  confined  to  cases  where  one 
of  the  parties  was  a  merchant  stranger,"  3  Woodeson,  109 ; 
and  when  those  bills  of  exchange  only  were  entitled  to  its 
privileges,  one  of  the  parties  to  which  was  a  foreign  merchant. 
This  seems  to  have  been  the  case,  at  the  time  [1622]  when 
Malynes  wrote  his  Lex  Mercatoria,  in  the  4th  page  of  which, 
he  says,  "  He  that  continually  dealeth  in  buying  and  selling 
of  commodities,  or  by  way  of  permutation  of  wares,  both  at 
home  and  abroad  in  foreign  parts,  is  a  merchant."  It  may 
be  observed  also,  that  Malynes  takes  no  notice  of  inland  bills ; 
hence,  we  may  presume,  that  they  were  not  in  use  in  his  time. 
...  In  the  case  of  Bromwich  v.  Loyd,  2  Lutw.  1585  (Hil., 
8  Wm.  III.,  C.  B.)  Chief  Justice  TREBY  said,  "  that  bills  of 
exchange  at  first  were  extended  only  to  merchant  strangers, 
trading  with  English  merchants ;  and  afterwards,  to  inland 
bills  between  merchants  trading  one  with  another  here  in 
England ;  and  after  that,  to  all  traders  and  dealers,  and  of 
late,  to  all  persons,  trading  or  not."  And  in  Butter  v.  Crips, 
6  Mod.  29  (2  Ann.),  Lord  Chief  Justice  HOLT  said,  he  re- 
membered "  when  actions  upon  inland  bills  of  exchange  first 
began." 

Perhaps  Lord  HOL,T  might  have  been  correct  as  to  the  time 
when  actions  upon  inland  bills  first  began,  or  rather  when  the 
first  notice  was  taken  of  a  difference  between  inland  and  for- 
eign bills ;  but  it  appears  probable,  that  inland  bills  were  in 


51.     CRANCH:    PROMISSORY   NOTES          79 

use  much  before  Lord  HOLT'S  remembrance.  Marius  first 
published  his  Advice  concerning  Bills  of  Exchange,  in  1651, 
half  a  century  before  Lord  HOLT  sat  in  the  case  of  Buller  v. 
Crips,  as  appears  by  Marius's  preface  to  his  second  edition ; 
and  he  there  says,  he  has  been  twenty-four  years  a  notary- 
public,  and  in  the  practice  of  protesting  "  inland  instruments 
and  outland  instruments."  In  p.  2,  speaking  of  a  bill  between 
merchants  in  England,  he  says,  it  is  "  in  all  things  as  effectual 
and  binding  as  any  bill  of  exchange  made  beyond  seas,  and 
payable  here  in  England,  which  we  used  to  call  an  outland 
bill,  and  the  other  an  inland  bill."  If  we  go  back  twenty- 
four  years  from  1651,  the  time  when  Marius  first  published 
his  Advice,  it  will  bring  us  to  the  year  1627 ;  but  if  we  go 
back  twenty-four  years  from  1670,  the  probable  date  of  his 
2d  edition  (which  was  probably  his  meaning),  it  will  give  us 
the  year  1646,  as  the  earliest  date  to  which  we  can  trace  them. 
As  Malynes,  in  his  Lex  Mercatoria,  of  1622,  does  not  notice 
them,  and  as  Marius  mentions  them  as  existing  in  1646,  it 
seems  probable,  that  they  began  to  be  in  use  between  those 
two  periods.  .  .  . 

It  is  certain,  that  promissory  notes  were  in  use  upon  the 
continent,  in  those  commercial  cities  and  towns  with  which 
England  carried  on  the  greatest  trade,  long  before  that 
period ;  and  were  negotiable  under  the  custom  of  merchants, 
in  the  countries  from  whence  England  adopted  the  greater 
part  of  her  commercial  law.  They  were  called  bills  obliga- 
tory, or  bills  of  debt,  and  are  described  with  great  accuracy 
by  Malynes,  in  his  Lex  Mercatoria,  p.  71,  72,  &c.,  where  he 
gives  the  form  of  such  a  bill,  which  is  copied  by  Molloy,  in 
p.  447  (7th  edition,  London,  1722),  and  will  be  found  in 
substance  exactly  like  a  modern  promissory  note. 

"  I,  A.  B.,  merchant  of  Amsterdam,  do,  by  these  presents,  ac- 
knowledge to  be  indebted  to  the  honest  C.  D.,  English  merchant, 
dwelling  at  Middleborough,  in  the  sum  of  500Z.  current  money, 
for  merchandise,  which  is  for  commodities  received  of  him  to  my 
content;  which  sum  of  500Z.  as  aforesaid,  I  do  hereby  promise 
to  pay  unto  the  said  C.  D.  (or  the  bringer  hereof).,  within  six 
months  after  the  date  of  these  presents.  In  witness  whereof,  I 
have  subscribed  the  same,  at  Amsterdam,  this  day  of  July, 


80  F.     COMMERCIAL    LAW 

This  is  nothing  more  than  a  verbose  promissory  note, 
which,  stripped  of  its  redundancies,  is  simply  this :  For  value 
received,  I  promise  to  pay  to  C.  D.,  or  bearer,  500Z.  in  six 
months  after  date.  .  .  . 

As  Malynes  says  nothing  of  inland  bills,  and  yet  is  so  very 
particular  respecting  promissory  notes,  the  probability  is, 
that  the  antiquity  of  the  latter  is  greater  than  that  of  the 
former,  and  that  they  were  more  certainly  within  the  custom 
of  merchants.  Indeed,  there  is  a  case  prior  to  any  in  the 
books  upon  inland  bills,  which  is  believed  to  have  brought 
upon  such  a  promissory  note,  or  bill  obligatory,  as  is  de- 
scribed by  Malynes.  It  is  in  Godbolt  49  (Mich.,  28  &  29 
Eliz.,  Anno  1586), 

S 

"  An  action  of  debt  was  brought  upon  a  concessit  solver e,  ac- 
cording to  the  law-merchant,  and  the  custom  of  the  city  of  Bris- 
tow,  and  an  exception  was  taken,  because  the  plaintiff  did  not 
make  mention  in  the  declaration  of  the  custom;  but  because  in 
the  end  of  his  plea  he  said  '  protestando,  se  sequi  querelam  secun- 
dum  consuetudinem  civitatis  Bristow,'  the  same  was  awarded  to 
be  good ;  and  the  exception  disallowed." 

Lord  Ch.  Baron  COMYNS,  in  his  Digest,  tit.  Merchant,  F.  1, 
F.  2,  in  abridging  the  substance  of  what  Malynes  had  said 
upon  the  subject  of  bills  of  debt,  or  bills  obligatory,  does  not 
hesitate  to  state  the  law  to  be,  that  "  payment  by  a  merchant 
shall  be  made  in  money  or  by  bill.  Payment  by  bill,  is  by 
bill  of  debt,  bill  of  credit  or  bill  of  exchange.  A  bill  of  debt, 
or  bill  obligatory  is,  when  a  merchant  by  his  writing  acknowl- 
edges himself  in  debt  to  another  in  such  a  sum,  to  be  paid 
at  such  a  day,  and  subscribes  it,  at  a  day  and  place  certain. 
Sometimes,  a  seal  is  put  to  it.  But  such  bill  binds  by  the 
custom  of  merchants,  without  seal,  witness  or  delivery.  So 
it  may  be  made  payable  to  bearer,  and  upon  demand.  So, 
it  is  sufficient,  if  it  be  made  and  subscribed  by  the  merchant's 
servant.  So,  a  bill  of  debt  may  be  assigned  to  another  toties 
quoties.  And  now  by  the  stat.  3  &  4  Anne,  c.  9,  all  notes  in 
writing,  made  and  signed  by  any  person,  or  the  servant  or 
agent,"  &c.  (reciting  the  terms  of  the  statute).  By  thus 
arranging  his  quotations  from  Malynes  under  the  same  head 


61.     CRANCH:    PROMISSORY   NOTES          81 

with  the  statute  of  Anne  respecting  promissory  notes,  it  is 
to  be  inferred,  that  he  considered  the  custom  of  merchants, 
respecting  bills  of  debt,  as  stated  by  Malynes,  to  be  the  cause 
or  origin  of  the  statute  respecting  promissory  notes ;  and  by 
connecting  the  former  with  the  latter  by  the  conjunction 
"  and,"  it  seems  to  be  strongly  implied,  that  he  considered  the 
statute  only  as  a  confirmation  of  what  was  law  before.  That 
he  was  correct  in  this  opinion,  and  that  the  foreign  custom 
of  merchants  respecting  promissory  notes,  mentioned  by 
Malynes,  was  gradually  and  imperceptibly  engrafted  into  the 
English  law-merchant,  at  the  same  time,  and  under  the  same 
sanction  with  inland  bills,  and  that  that  custom  was  acknowl- 
edged repeatedly  by  solemn  legal  adjudications  in  the  English 
courts,  before  the  statute  of  Anne,  will  probably  be  admitted 
when  the  authorities  are  examined,  which  will  be  presented 
in  the  following  pages.  A  greater  degree  of  weight  will  be 
attached  to  the  opinion  of  Comyns,  when  it  is  recollected,  that 
he  was  either  at  the  bar  or  on  the  bench,  during  the  reigns 
of  King  William  III.,  Queen  Anne,  Geo.  I.  and  Geo.  II.,  and 
must,  therefore,  have  known  how  the  law  stood  before  th« 
statute,  what  motives  produced  it,  and  what  was  the  true 
intent  of  the  parliament  in  passing  it.  ... 

The  time  when  inland  bills  and  promissory  notes  began  to 
be  in  general  use  in  England,  was  probably  about  the  year 
1645  or  1646;  and  their  general  use  at  that  time  may  be 
accounted  for  by  the  facts  stated  in  Anderson's  Hist,  of 
Commerce,  vol.  1,  p.  386,  402,  484,  492,  493,  519  and  520. 
In  the  year  1638  or  1640,  King  Charles  forcibly  borrowed 
200,OOOZ.  of  the  merchants  of  London,  "  who  had  lodged  their 
money  in  the  king's  mint,  in  the  tower,  which  place,  before 
banking  with  goldsmiths  came  into  use,  in  London,  was  made 
a  kind  of  bank  or  repository  for  merchants  therein  safely  to 
lodge  their  money;  but  which,  after  this  compulsory  loan, 
was  never  trusted  in  that  way  any  more.  Afterwards,  they 
generally  trusted  their  cash  with  their  servants,  until  the  civil 
war  broke  out,  when  it  was  very  customary  for  their  appren- 
tices and  clerks  to  leave  their  masters,  and  go  into  the  army. 
Whereupon,  the  merchants  began,  about  the  year  1645,  to 
lodge  their  cash  in  goldsmiths'  hands,  both  to  receive  and  pay 


82  V.     COMMERCIAL    LAW 

for  them;  until  which  time,  the  whole  and  proper  business 
of  London  goldsmiths  was,  to  buy  and  sell  plate  and  foreign 
coins  of  gold  and  silver,"  &c. 

"  This  account/'  says  Anderson,  "  we  have  from  a  scarce  and 
most  curious  small  pamphlet,  printed  in  1676,  entitled  '  The  mys- 
tery of  the  new-fashioned  goldsmiths  or  bankers  discovered,  in 
eight  quarto  pages,'  from  which  he  extracts  the  following  passage: 
'  Such  merchants'  servants  as  still  kept  their  masters'  running 
cash,  had  fallen  into  a  way  of  clandestinely  lending  it  to  the 
goldsmiths  at  four  pence  per  cent,  per  diem;  who,  by  these  and 
such  like  means,  were  enabled  to  lend  out  great  quantities  of  cash 
to  necessitous  merchants  and  others,  weekly  or  monthly,  at  high 
interest;  and  also  began  to  discount  the  merchants'  bills,  at  the 
like  or  a  higher  rate  of  interest.  That  much  about  this  time,  they 
(the  goldsmiths  or  new-fashioned  bankers)  began  to  receive  the 
rents  of  gentlemen's  estates  remitted  to  town,  and  to  allow  them 
and  others,  who  put  cash  into  their  hands,  some  interest  for  it,  if 
it  remained  a  single  month  in  their  hands,  or  even  a  lesser  time. 
This  was  a  great  allurement  for  people  to  put  their  money  into 
their  hands,  which  would  bear  interest  until  the  day  they  wanted 
it;  and  they  could  also  draw  it  out  by  100Z.  or  501.  &c.,  at  a  time, 
as  they  wanted  it,  with  infinitely  less  trouble  than  if  they  had  lent 
it  out  on  either  real  or  personal  security.  The  consequence  was, 
that  it  quickly  brought  a  great  quantity  of  cash  into  their  hands ; 
so  that  the  chief  or  greater  part  of  them  were  now  enabled  to 
supply  Cromwell  with  money,  in  advance  on  the  revenues,  as  his 
occasions  required,  upon  great  advantage  to  themselves/ 

"  After  the  restoration,  King  Charles  being  in  want  of  money, 
they  took  ten  per  cent,  of  him  barefacedly;  and  by  private  con- 
tract on  many  bills,  orders,  tallies  and  debts  of  that  king,  they 
got  twenty,  sometimes  thirty  per  cent,  to  the  great  dishonor  of 
the  government.  This  great  gain  induced  the  goldsmiths  to 
become  more  and  more  lenders  to  the  king;  to  anticipate  all  the 
revenue;  to  take  every  grant  of  parliament  into  pawn,  as  soon  as 
it  was  given;  also  to  outvie  each  other  in  buying  and  taking  to 
pawn,  bills,  orders  and  tallies;  so  that  in  effect  all  the  revenue 
passed  through  their  hands.  And  so  they  went  on,  till  the  fatal 
shutting  of  the  exchequer,  in  the  year  1672.  .  .  ." 

This  short  history  of  the  goldsmiths  will  account  for  the 
sudden  increase  of  paper  credit,  after  the  year  1645,  and 
renders  it  extremely  probable,  that  inland  bills  and  promis- 
sory notes  were  in  very  general  use  and  circulation.  Indeed, 
we  know  that  to  be  the  fact,  from  the  cases  in  the  books; 


61.     CRANCH:    PROMISSORY   NOTES         83 

upon  examining  which,  we  shall  find,  that  there  was  no  dis- 
tinction made  between  inland  bills  of  exchange  and  promissory 
notes;  they  were  both  called  bills;  they  were  both  called 
notes ;  sometimes,  they  were  called  "  bills  or  notes."  Neither 
the  word  "  inland,"  nor  the  word  "  promissory,"  was  at  this 
time  in  use,  as  applied  to  distinguish  the  one  species  of  paper 
from  the  other.  The  term  "  promissory  note  "  does  not  seem 
to  have  obtained  a  general  use,  until  after  the  statute.  There 
was  no  distinction  made,  either  by  the  bench,  by  the  bar,  or 
by  merchants,  between  a  promissory  note  and  an  inland  bill, 
and  this  is  the  cause  of  that  obscurity  in  the  reports  of  mer- 
cantile cases  during  the  reigns  of  Charles  II.,  James  II.,  and 
King  William,  of  which  Lord  MANSFIELD  complained  so  much 
in  the  case  of  Grant  v.  Vaughan,  3  Burr.  1525,  and  1  W.  Bl. 
488;  where  he  says,  that  in  all  the  cases  in  King  William's 
time  "  there  is  great  confusion ;  for  without  searching  the 
record,  one  cannot  tell  whether  they  arose  upon  promissory 
notes,  or  inland  bills  of  exchange.  For  the  reporters  do  not 
express  themselves  with  sufficient  precision,  but  use  the  words 
*  note  '  and  '  bill '  promiscuously."  This  want  of  precision 
is  apparent  enough  to  us,  who  now  (since  the  decision  of 
Lord  HOLT  in  the  case  of  Clerk  v.  Martin)  read  the  cases 
decided  by  him  before  that  time ;  but  at  the  time  of  reporting 
them,  there  was  no  want  of  precision  in  the  reporter,  for 
there  was  not,  in  fact,  and  never  had  been  suggested,  a  differ- 
ence in  law  between  a  promissory  note  and  an  inland  bill. 
They  both  came  into  use  at  the  same  time,  were  of  equal 
benefit  to  commerce,  depended  upon  the  same  principles,  and 
were  supported  by  the  same  law. 

IV.  The  case  of  Edgar  v.  Chut,  or  Chat  v.  Edgar,  reported 
in  1  Keb.  592,  636  (Mich.  15  Car.  II.,  Anno  1663),  seems 
to  be  the  first  in  the  books  which  appears  clearly  to  be  upon 
an  inland  bill  of  exchange.  Without  doubt,  many  had  pre- 

t ceded  it,  and  passed  sub  silentio.  The  case  was  this:  A 
butcher  had  bought  cattle  of  a  grazier,  but  not  having  the 
money  to  pay  for  them,  and  knowing  that  the  parson  of  the 
parish  had  money  in  London,  he  obtained  (by  promising  to 
pay  for  it)  the  parson's  order  or  bill  on  his  correspondent, 
a  merchant  in  London,  in  favor  of  the  grazier.  The  parson 


84  V.     COMMERCIAL    LAW 

having  doubts  of  the  credit  of  the  butcher,  wrote  secretly  to 
his  correspondent,  not  to  pay  the  money  to  the  grazier,  until 
the  butcher  had  paid  the  parson.  In  consequence  of  which, 
the  London  merchant  did  not  pay  the  draft,  and  the  grazier 
brought  his  suit  against  the  parson,  and  declared  on  the 
custom  of  merchants.  It  was  moved  in  arrest  of  judgment, 
that  neither  the  drawer  nor  the  payee  was  a  merchant ;  but  it 
was  held  to  be  sufficient,  that  the  drawee  was  a  merchant.  .  .  . 
The  case  of  Shelden  v.  Hentley,  %  Show.  161  (33  Car.  II., 
B.  R.,  Anno  1680),  was 

"  upon  a  note  under  seal,  whereby  the  defendant  promised  to 
pay  to  the  bearer  thereof,  upon  delivery  of  the  note,  100/.,  and 
avers  that  it  was  delivered  to  him  (meaning  the  defendant),  by 
the  bearer  thereof,  and  that  he  (the  plaintiff)  was  so."  It  was 
objected,  that  this  was  no  deed,  because  there  was  no  person 
named  in  the  deed  to  take  by  it.  But  it  was  answered,  that  it  was 
not  a  deed  until  delivered,  and  then  it  was  a  deed  to  the  plaintiff. 
COURT.  "The  person  seems  sufficiently  described,  at  the  time 
that  'tis  made  a  deed,  which  is  at  its  delivery:  and  suppose,  a 
bond  were  now  made  to  the  Lord  Mayor  of  London,  and  the 
party  seals  it,  and  after  this  man's  mayoralty  is  out,  he  delivers 
the  bond  to  the  subsequent  mayor,  this  is  good;  et  traditio  facit 
chartam  loqui.  And  by  the  delivery,  he  expounds  the  person 
before  meant ;  as  when  a  merchant  promises  to  pay  to  the  bearer 
of  the  note,  anyone  that  brings  the  note  shall  be  paid.  But  Mr. 
Justice  JONES  said,  it  was  the  custom  of  merchants  that  made  that 
good." 

Here,  it  will  be  observed,  that  the  court,  in  order  to  eluci- 
date the  subject  before  them,  refer  to  principles  of  law  more 
certain  and  better  known,  viz.,  that  a  promissory  note  pay- 
able to  bearer  is  good,  and  that  promissory  notes  were  within 
the  custom  of  merchants.  .  .  . 

If  any  doubt  could  remain,  that  the  case  of  Hill  v.  Lewis 
had  fully  settled  the  law,  that  promissory  notes  were  within 
the  custom  of  merchants,  that  doubt  must  have  been  com- 
pletely removed  by  the  case  of  Williams  v.  Williams,  decided 
at  the  next  term  in  the  same  year,  in  the  king's  bench  (viz., 
Pasch.,  5  W.  &  M.,  Anno  1692),  Carth.  269. 

The  plaintiff,  Thomas  Williams,  being  a  goldsmith  in  Lom- 
bard street,  brought  an  action  on  the  case  against  Joseph  Williams, 


51.     CRANCH:    PROMISSORY   NOTES         85 

the  projector  of  the  diving  engine,  and  declared  upon  a  note  drawn 
by  one  John  Pullin,  by  which  he  promised  to  pay  12L  10*.  to  the 
said  Joseph  Williams,  on  a  day  certain;  and  he  indorsed  the 
note  to  one  Daniel  Foe,  who  indorsed  it  to  the  plaintiff,  for  like 
value  received.  And  now,  the  plaintiff,  as  second  indorsee,  de- 
clared in  this  manner,  viz.,  "  that  the  city  of  London  is  an  ancient 
city,  and  that  there  is,  and  from  the  time  to  the  contrary  whereof 
the  memory  of  man  doth  not  exist,  there  hath  been,  a  certain; 
ancient  and  laudable  custom  among  merchants,  and  other  persons 
residing  and  exercising  commerce,  within  this  realm  of  England, 
used  and  approved,  viz.,  &c.  So  sets  forth  the  custom  of  merchants 
concerning  notes  so  drawn  and  indorsed  ut  supra,  by  which  the 
first  indorser  is  made  liable,  as  well  as  the  second,  upon  failure  of 
the  drawer,  and  then  sets  forth  the  fact  thus,  viz.:  And  whereas 
also,  a  certain  John  Pullin,  who  had  commerce  by  way  of  merchan- 
dising, &c.,  on  such  a  day,  at  London  aforesaid,  to  wit,  in  the  par- 
ish of  St.  Mary  le  Bow,  in  the  ward  of  Cheap,  according  to  the 
usage  and  custom  of  merchants,  made  a  certain  bill  or  note  in 
writing,  subscribed  with  his  name,  bearing  date,  &c.,  and  by  the 
said  bill  or  note,  promised  to  pay,  &c.,  setting  forth  the  note ;  and 
further,  that  it  was  indorsed  by  the  defendant  to  Foe,  and  by  Foe 
to  the  plaintiff,  according  to  the  usage  and  custom  of  merchants ; 
and  that  the  drawer  having  notice  thereof,  refused  to  pay  the 
money,  whereby  the  defendant,  according  to  the  usage  and  custom 
of  merchants,  became  liable  to  the  plaintiff,  and  in  consideration 
thereof,  promised  to  pay  it,  &c.,  alleging  that  they  were  all  per- 
sons who  traded  by  way  of  merchandise,  &c. 

"  To  this,  the  defendant  pleaded  a  frivolous  plea,  and  the 
plaintiff  demurred ;  and  upon  the  first  opening  of  the  matter,  had 
judgment  in  B.  R.  And  now,  the  defendant  brought  a  writ  of 
error  in  the  exchequer  chamber,  and  the  only  error  insisted  on 
was,  that  the  plaintiff  had  not  declared  on  the  custom  of  mer- 
chants in  London,  or  any  other  particular  place  (as  the  usual 
way  is),  but  had  declared  on  a  custom  through  all  England,  and 
if  so,  it  is  the  common  law,  and  then  it  ought  not  to  be  set  out 
by  way  of  custom ;  and  if  it  is  a  custom,  then  it  ought  to  be  laid 
in  some  particular  place,  from  whence  a  venue  might  arise  to  try 
it.  To  which  it  was  answered,  that  this  custom  of  merchants 
concerning  bills  of  exchange  is  part  of  the  common  law,  of  which 
the  judges  will  take  notice  ex  officio,  as  it  was  resolved  in  the  case 
of  Carter  v.  Downish,  and  therefore,  it  is  needless  to  set  forth 
the  custom  specially  in  the  declaration,  for  it  is  sufficient  to  say, 
that  such  a  person,  according  to  the  usage  and  custom  of  mer- 
chants, drew  the  bill ;  therefore,  all  the  matter  in  the  declaration 
concerning  the  special  custom  was  merely  surplusage,  and  the 
declaration  good  without  it.  The  judgment  was  affirmed." 


86  V.     COMMERCIAL    LAW 

There  cannot  be  a  stronger  case  than  this.  On  demurrer, 
judgment  was  rendered  for  the  plaintiff  in  the  king's  bench, 
which  judgment  was  affirmed,  upon  argument,  upon  a  writ 
of  error  in  the  exchequer  chamber,  on  the  very  point  of  the 
custom ;  so  that  here  was  the  unanimous  concurrence  of  all 
the  judges  of  England.  This  case,  it  is  believed,  has  never 
been  denied  to  be  law,  either  before  or  since  the  statute  of 
Anne.  A  short  note  of  this  case  is  to  be  found  in  3  Salk.  68, 
by  the  name  of  Williams  v.  Field,  in  these  words,  "  Ruled, 
that  where  a  bill  is  drawn  payable  to  W.  R.,  or  order,  and 
he  indorses  it  to  B.,  who  indorses  it  to  C.,  and  he  indorses  it 
to  B.,  the  last  indorsee  may  bring  an  action  against  any  of 
the  indorsers,  because  every  indorsement  is  a  new  bill,  and 
implies  a  warranty  by  the  indorser,  that  the  money  shall  be 
paid."  .  .  . 

Hawkins  v.  Cardy,  in  the  next  year  (Mich.,  10  Wm.  III., 
B,  R.),  1  Ld.  Raym.  360;  1  Salk.  65;  Garth.  466,  was  also 
upon  a  promissory  note. 

"  The  plaintiff  brought  an  action  on  the  case,  upon  a  bill  of 
exchange  "  (says  the  reporter),  "  against  the  defendant,  and  de- 
clared upon  the  custom  of  merchants,  which  he  showed  to  be  thus : 
that  if  any  merchant  subscribes  a  bill,  by  which  he  promises  to 
pay  a  sum  of  money  to  another  man,  or  his  order,  and  afterwards, 
the  person  to  whom  the  bill  was  made  payable,  indorses  the  said 
bill,  for  the  payment  of  the  whole  sum  therein  contained,  or  any 
part  thereof,  to  another  man,  the  first  drawer  is  obliged  to  pay 
the  sum  so  indorsed  to  the  person  to  whom  it  is  indorsed  payable ; 
and  then  the  plaintiff  shows  that  the  defendant  being  a  merchant, 
subscribed  a  bill  of  4>6l.  IQs.  payable  to  Blackman,  or  order; 
that  Blackman  indorsed  4>3l.  4>s.  of  it,  payable  to  the  plaintiff," 
&c.  On  demurrer,  the  declaration  was  adjudged  ill;  "  for  a  man 
cannot  apportion  such  personal  contract;  for  he  cannot  make 
a  man  liable  to  two  actions,  where  by  the  contract  he  is  liable  but 
to  one."  "  But  if  the  plaintiff  had  acknowledged  the  receipt  of  the 
Si.  1 5s.  the  declaration  had  been  good."  And  HOLT,  Chief  Jus- 
tice, said,  "  that  this  is  not  a  particular  local  custom,  but  the 
common  custom  of  merchants,  of  which  the  law  takes  notice." 
Salkeld,  in  reporting  this  case,  begins  thus :  "  A.  having  a  bill  of 
exchange  upon  B.,  indorses  part  of  it  to  I.  S.,  who  brings  an 
action  for  his  part,"  &c. 

This,  compared  with  Lord  Raymond's  report  of  the  case, 
shows  what  has  been  already  so  often  mentioned,  that  no 


51.     CRANCH:    PROMISSORY   NOTES          87 

difference  had  yet  been  discovered  between  the  law  respecting 
promissory  notes,  and  that  concerning  inland  bills  of  ex- 
change. Even  Lord  Raymond  states  it  first  to  be  a  bill  of 
exchange,  and  immediately  shows  it  to  have  been  a  promis- 
sory note.  So  glaring  a  contradiction  could  not  have  passed 
uncorrected,  if  a  promissory  note  and  an  inland  bill  of  ex- 
change had  not  been  considered  as  the  same  thing.  In  this: 
case,  it  will  be  remarked,  that  upon  demurrer,  the  court  said, 
that  this  declaration,  upon  the  custom  of  merchants,  on  a 
promissory  note,  by  the  indorsee  against  the  maker,  would 
have  been  good,  if  the  receipt  of  the  31.  15s.  had  been  acknowl- 
edged. .  .  . 

We  have  now  examined  all  the  reported  cases  upon  promis- 
sory notes,  from  the  time  of  the  first  introduction  of  inland 
bills,  to  the  time  of  Lord  HOLT'S  decision  in  the  case  of  Clerke 
v.  Martin.  At  least,  if  any  others  are  to  be  found,  they  have 
escaped  a  diligent  search.  They  form  a  series  of  decisions 
for  a  period  of  more  than  thirty  years,  in  which  we  discover 
an  uncommon  degree  of  unanimity  as  well  as  of  uniformity. 
We  find  the  law  clearly  established  to  be  the  same  upon  prom- 
issory notes  as  upon  inland  bills  ;  and  we  find  no  evidence  that 
the  latter  were  in  use  before  the  former.  There  is  not  a  con- 
tradictory case,  or  even  dictum,  unless  we  consider  as  such 
the  doubt  expressed  in  the  case  of  Butcher  v.  Swift,  cited  by 
Comyns;  but  that  case  is  not  reported,  and  therefore,  it  is 
impossible  to  say,  upon  what  ground  the  doubt  was  suggested. 
The  cases  upon  promissory  notes  and  inland  bills  go  to  estab- 
lish not  only  their  likeness  in  every  respect,  but  even  their 
identity;  for  the  former  are  almost  uniformly  called  inland 
bills. 

V.  Upon  examining  the  printed  books  of  precedents,  dur- 
ing the  above  period,  we  shall  find  that  the  common  usage 
was,  to  declare  upon  a  promissory  note,  as  upon  an  inland 
bill  of  exchange. 

The  first  precedent  of  a  declaration  upon  a  promissory 
note  is  that  in  Brownlow,  Latine  Redivivum,  p.  74,  which  is 
prior  [1678]  to  any  of  the  declarations  upon  inland  bills  of 
exchange.  It  is,  in  substance,  as  follows,  that  there  is,  and 
was,  from  time  immemorial,  a  custom  among  merchants  at 


88  V.     COMMERCIAL    LAW 

the  city  of  Exeter,  and  merchants  at  Crozict,  that  if  any 
merchant  at  Crozict  should  make  any  bill  of  exchange,  and 
by  the  said  bill  should  acknowledge  himself  to  be  indebted 
to  another  merchant,  in  any  sum  of  money,  to  be  paid  to  such 
•other  merchant,  or  his  order,  and  such  merchant  to  whom  the 
same  should  be  payable,  should  order  such  sum  to  be  paid  to 
another  merchant,  and  such  merchant  to  whom  the  same  was 
payable,  should  request  the  merchant  who  acknowledged  him- 
self so  as  aforesaid  to  be  indebted,  to  pay  such  sum  to  such 
other  merchant  to  whom  he  had  ordered  the  money  to  be  paid ; 
and  if,  upon  such  request,  the  merchant  who  acknowledged 
himself  to  be  indebted  in  the  sum  in  such  bill  and  indorsement 
mentioned,  should  accept  thereof,  then  he  would  become 
chargeable  to  pay  the  said  sum  to  the  person  to  whom  it  was 
by  the  said  bill  and  indorsement  directed  to  be  paid,  at  the 
time  in  the  said  bill  mentioned,  according  to  the  tenor  thereof. 
It  then  avers,  that  on  the  8th  May  1678,  the  defendant,  ac- 
cording to  the  custom, aforesaid,  acknowledged  himself  to 
be  indebted  to  one  M.  M.  in  5£s.,  which  he  obliged  himself 
and  his  assigns  (this  is  probably  misprinted)  to  pay  to  the 
said  M.  M.,  who,  by  indorsement  on  the  same  bill  of  exchange, 
on ,  at ,  ordered  the  money  to  be  paid  to  the  plain- 
tiff, which  bill  of  exchange  afterwards,  to  wit,  on  -  — , 
at  ,  the  defendant  saw  and  accepted,  by  which  accept- 
ance, and  by  the  usage  aforesaid,  the  defendant  became  liable, 
&c.,  and  in  consideration  thereof,  promised  to  pay,  &c.  There 
is,  in  the  same  book,  p.  77,  a  declaration  upon  a  bill  of  ex- 
change at  double  usance,  which  is  probably  upon  an  inland 
bill,  as  the  custom  is  alleged,  generally,  among  merchants, 
but  does  not  say  at  what  place.  .  .  . 

In  2  Mod.  Intr.  126,  is  another  declaration  upon  the  cus- 
tom, by  the  indorsee  against  the  maker  of  three  promissory 
notes,  dated  in  1697.  This  declaration  is  precisely  like  a 
modern  declaration  upon  a  promissory  note,  excepting  that 
the  note  is  called  a  bill,  and  is  said  to  be  made  and  indorsed 
"  according  to  the  custom  of  merchants,"  "  whereby,  accord- 
ing to  the  custom  of  merchants,"  the  defendant  became  liable, 
and  so  being  liable,  &c.  In  p.  1£2,  is  another  by  payee  v.  the 
maker  of  a  promissory  note,  calling  it  a  "  bill  or  note,"  and 


51.     CRANCH:    PROMISSORY   NOTES          89 

setting  forth  the  custom  specially.  In  every  case  upon  a 
promissory  note,  the  declaration  is  grounded  on  the  custom  of 
merchants. 

Upon  a  review  of  this  list  of  authorities  and  precedents,  we 
are  at  a  loss  to  imagine  from  what  motive,  and  upon  what 
grounds,  Lord  HOLT  could  at  once  undertake  to  overrule  all 
these  cases,  and  totally  change  the  law  as  to  promissory  notes : 
and  why  he  should  admit  inland  bills  of  exchange  to  be  within 
the  custom  of  merchants,  and  deny  that  privilege  to  promis- 
sory notes ;  when  the  same  evidence  which  proved  the  former 
to  be  within  the  custom,  equally  proved  that  it  extended  to 
the  latter.  By  examining  the  books,  it  will  be  found,  that  most 
of  the  points  which  have  been  decided  respecting  inland  bills 
of  exchange,  have  been  decided  upon  cases  on  promissory 
notes.  If  he  considered  promissory  notes  as  a  new  invention, 
when  compared  with  inland  bills  of  exchange,  he  seems  to  have 
mistaken  the  fact ;  for  the  probability  is,  that  the  former  are 
the  most  ancient,  or,  to  say  the  least,  are  of  equal  antiquity. 

VI.  But  let  us  proceed  to  examine  the  case  of  Clerke  v. 
Martin  (Pasch.,  1  Anne,  B.  R.,  2  Ld.  Raym.  757 ;  1  Salk. 
129),  upon  which  alone  is  founded  the  assertion  in  modern 
books  "  that  before  the  statute  of  Anne,  promissory  notes 
were  not  assignable  or  indorsable  over,  within  the  custom  of 
merchants,  so  as  to  enable  the  indorsee  to  bring  an  action  in 
his  own  name  against  the  maker."  The  case  is  thus  reported 
by  Lord  Raymond : 

"  The  plaintiff  brought  an  action  upon  the  case,  against  the 
defendant,  upon  several  promises ;  one  count  was  upon  a  general 
indebitatus  assumpsit  for  money  lent  to  the  defendant;  another 
was  upon  the  custom  of  merchants,  as  upon  a  bill  of  exchange; 
and  showed  that  the  defendant  gave  a  note  subscribed  by  himself, 

by  which  he  promised  to  pay to  the  plaintiff,  or  his  order, 

&c.  Upon  non  assumpsit,  a  verdict  was  given  for  the  plaintiff, 
and  entire  damages.  And  it  was  moved  in  arrest  of  judgment, 
that  this  note  was  not  a  bill  of  exchange,  within  the  custom  of 
merchants,  and  therefore,  the  plaintiff,  having  declared  upon  it 
as  such,  was  wrong ;  but  that  the  proper  way,  in  such  cases,  is  to 
declare  upon  a  general  indebitatus  assumpsit  for  money  lent,  and 
the  note  would  be  good  evidence  of  it. 

"  But  it  was  argued  by  Sir  Bartholomew  Shower,  the  last 
Michaelmas  term,  for  the  plaintiff,  that  this  note  being  payable 


90  V.     COMMERCIAL    LAW 

to  the  plaintiff  or  his  order,  was  a  bill  of  exchange,  inasmuch  as, 
by  its  nature,  it  was  negotiable;  and  that  distinguishes  it  from 
a  note  payable  to  I.  S.,  or  bearer,  which  he  admitted  was  not  a 
bill  of  exchange,  because  it  is  not  assignable  nor  indorsable  by  the 
intent  of  the  subscriber,  and  consequently,  not  negotiable,  and 
therefore,  it  cannot  be  a  bill  of  exchange,  because  it  is  incident  to 
the  nature  of  a  bill  of  exchange  to  be  negotiable;  but  here  this 
bill  is  negotiable,  for  if  it  had  been  indorsed  payable  to  I.  N., 
I.  N.  might  have  brought  his  action  upon  it,  as  upon  a  bill  of 
exchange,  and  might  have  declared  upon  the  custom  of  merchants. 
Why,  then,  should  it  not  be,  before  such  indorsement,  a  bill  of 
exchange  to  the  plaintiff  himself,  since  the  defendant,  by  his 
subscription,  has  shown  his  intent  to  be  liable  to  the  payment  of 
this  money  to  the  plaintiff  or  his  order ;  and  since  he  hath  thereby 
agreed  that  it  shall  be  assignable  over,  which  is,  by  consequence, 
that  it  shall  be  a  bill  of  exchange.  That  there  is  no  difference  in 
reason,  between  a  note  which  saith,  '  I  promise  to  pay  to  I.  S., 
or  order,'  &c.,  and  a  note  which  saith,  '  I  pray  you  to  pay  to 
I.  S.,  or  order/  &c.,  they  are  both  equally  negotiable,  and  to  make 
such  a  note  a  bill  of  exchange  can  be  no  wrong  to  the  defendant, 
because  he,  by  the  signing  of  the  note,  has  made  himself  to  that 
purpose  a  merchant  (2  Vent.  292,  Sars field  v.  Witherly),  and  has 
given  his  consent  that  his  note  shall  be  negotiated,  and  thereby 
has  subjected  himself  to  the  law  of  merchants. 

"  But  HOLT,  Chief  Justice,  was  toils  viribus  against  the  action; 
and  said  that  this  could  not  be  a  bill  of  exchange.  That  the 
maintaining  of  these  actions  upon  such  notes,  were  innovations 
upon  the  rules  of  the  common  law ;  and  that  it  amounted  to  a  new 
sort  of  specialty,  unknown  to  the  common  law,  and  invented  in 
Lombard  street,  which  attempted,  in  these  matters  of  bills  of 
exchange,  to  give  laws  to  Westminster  Hall.  That  the  continuing 
to  declare  upon  these  notes,  upon  the  custom  of  merchants,  pro- 
ceeded upon  obstinacy  and  opinionativeness,  since  he  had  always 
expressed  his  opinion  against  them,  and  since  there  was  so  easy 
a  method  as  to  declare  upon  a  general  indebitatus  assumpsit  for 
money  lent,  &c.  As  to  the  case  of  Sarsfield  v.  Wiiherly,  he  said, 
he  was  not  satisfied  with  the  judgment  of  the  king's  bench,  and 
that  he  advised  the  bringing  a  writ  of  error. 

"  GOULD,  Justice,  said,  that  he  did  not  remember  it  had  ever 
been  adjudged,  that  a  note  in  which  the  subscriber  promised  to 
pay,  &c.,  to  I.  S.,  or  bearer,  was  not  a  bill  of  exchange.  That 
the  bearer  could  not  sue  an  action  upon  such  a  note  in  his  own 
name,  is  without  doubt;  and  so  it  was  resolved  between  Norton 
and  Coggs,  now  printed  in  3  Lev.  299^  but  that  it  was  never  re- 
solved, that  the  party  himself  (to  whom  such  note  was  payable) 
could  not  have  an  action  upon  the  custom  of  merchants,  upon  such 
a  bill.  But  HOLT,  Chief  Justice,  answered,  that  it  was  held  in  the 


51.     CRANCH:    PROMISSORY   NOTES          91 

said  case  of  Norton  v.  Coggs,  that  such  a  note  was  not  a  bill  of 
exchange,  within  the  custom  of  merchants.  And  afterwards,  in 
this  Easter  term,  it  was  moved  again,  and  the  court  continued  to 
be  of  opinion  against  the  action.  .  .  .  And  judgment  was  given 
quod  querens  nil  capiat  per  billam,  &c.,  by  the  opinion  of  the 
whole  court."  ... 

These  five  cases,  viz.,  Clerke  v.  Martin,  Potter  v.  Pearson, 
Burton  v.  S outer,  Cutting  v.  Williams,  and  Buller  v.  Crips, 
are  the  only  reported  cases  in  which  the  former  decisions  were 
overruled,  and  it  may  be  observed,  that  the  four  last  were 
decided  upon  the  authority  of  the  first,  which  is  to  be  con- 
sidered as  the  leading  case ;  and  it  is,  in  that  case,  therefore, 
that  we  are  to  look  for  the  grounds  upon  which  so  great  a 
change  of  the  established  law  was  founded.  .  .  . 

Hence,  then,  we  find,  from  an  examination  of  all  the  cases 
before  the  statute  of  Anne,  that  it  never  was  adjudged,  that 
a  promissory  note  for  money,  payable  to  order,  and  indorsed, 
was  not  an  inland  bill  of  exchange.  But  we  find,  that  the 
contrary  principle  had  been  recognised,  in  all  the  cases,  from 
the  time  of  the  first  introduction  of  inland  bills  and  promis- 
sory notes,  to  the  first  year  of  Queen  Anne,  and  that  in  one 
of  them,  it  had  been  expressly  adjudged,  upon  demurrer,  in 
the  king's  bench,  and  the  judgment  affirmed,  upon  argument, 
in  the  exchequer  chamber,  before  all  the  judges  of  the  com- 
mon pleas  and  barons  of  the  exchequer,  so  that  it  may  truly 
be  said  to  have  been  solemnly  adjudged  by  all  the  judges  of 
England.  Principles  of  law  so  established,  are  not  to  be 
shaken  by  the  breath  of  a  single  judge,  however  great  may  be 
his  learning,  his  talents  or  his  virtues.  That  Lord  HOLT 
possessed  these  in  an  eminent  degree  will  never  be  denied; 
but  he  was  not  exempt  from  human  infirmity.  The  report 
itself,  in  the  case  of  Clerke  v.  Martin,  shows  that,  from  some 
cause  or  other,  he  was  extremely  irritated  with  the  gold- 
smiths of  Lombard  street,  and  that  his  mind  was  not  in  a 
proper  state  for  calm  deliberation  and  sound  judgment.  The 
same  observation  applies  to  the  case  of  Buller  v.  Crips,  and  is 
further  confirmed,  by  that  of  Ward  v.  Evans,  %  Ld.  Raym. 
930,  in  which  his  lordship  said,  "  But  then  I  am  of  opinion, 
and  always  was  (notwithstanding  the  noise  and  cry,  that  it  is 


92  V.     COMMERCIAL    LAW 

the  use  of  Lombard  street,  as  if  the  contrary  opinion  would 
blow  up  Lombard  street),  that  the  acceptance  of  such  a  note 
is  not  actual  payment."  This  circumstance  has  also  been 
noticed  by  judges  and  others,  in  some  of  the  more  modern 
reports. 

VII.  From  this  concurrent  testimony,  it  is  apparent,  that 
the  case  of  ClerJce  v.  Martin  was  a  hasty,  intemperate  decision 
of  Lord  HOLT,  which  was  acquiesced  in  by  the  other  judges, 
in  consequence  of  his  overbearing  authority,  "  which  made 
others  yield  to  him ;  "  and  that  he  so  "  pertinaciously  "  ad- 
hered to  his  opinion,  as  to  render  it  necessary  to  apply  to 
parliament  to  overrule  him.  This,  it  is  believed,  is  the  true 
origin  of  the  statute  of  Anne,  which  did  not  enact  a  new  law, 
but  simply  confirmed  the  old ;  the  authority  of  which  had  been 
shaken  by  the  late  decision  of  Lord  HOLT.  This  idea  is  con- 
firmed by  the  words  of  the  preamble  of  the  statute,  which  are, 
"  Whereas,  it  hath  been  held,"  that  notes  in  writing,  &c.,  pay- 
able to  order,  "  were  not  assignable  or  indorsable  over,  within 
the  custom  of  merchants,"  and  that  the  payee  could  "  not 
maintain  an  action,  by  the  custom  of  merchants,"  against 
the  maker ;  and  that  the  indorsee  "  could  not,  within  the  said 
custom  of  merchants,  maintain  an  action  upon  such  note  " 
against  the  maker ;  "  therefore,  to  the  intent  to  encourage 
trade  and  commerce,"  &c.,  be  it  enacted,  &c.,  that  all  notes 
in  writing  made  and  signed  by  any  person,  &c.,  whereby  such 
person,  &c.,  shall  promise  to  pay  to  any  other  person,  &c., 
or  his  order,  or  unto  bearer,  any  sum  of  money,  &c.,  "  shall 
be  taken  and  construed  to  be,  by  virtue  thereof,  due  and 
payable  to  any  such  person,  &c.,  to  whom  the  same  is  made 
payable ;  "  "  and  also  every  such  note,  payable  to  any  per- 
son," &c.,  "  or  his  order,  shall  be  assignable  or  indorsable 
over,  in  the  same  manner  as  inland  bills  of  exchange  are  or 
may  be,  according  to  the  custom  of  merchants,"  and  that  the 
payee  "  may  maintain  an  action  for  the  same,  in  such  manner 
as  he  might  do  upon  any  inland  bill  of  exchange,  made  or 
drawn  according  to  the  custom  of  merchants,  against  the 
person,  &c.,  who  signed  the  same."  And  that  the  indorsee 
"  may  maintain  his  action,"  for  such  sum  of  money,  either 
against  the  maker  or  any  of  the  indorsers,  "  in  like  manner 


51.     CRANCH:    PROMISSORY   NOTES          93 

as  in  cases  of  inland  bills  of  exchange."  Here,  it  may  be 
observed,  that  by  using  the  words,  "  it  hath  been  held,"  the 
legislature  clearly  allude  to  certain  opinions,  which  they  care- 
fully avoid  to  recognise  as  law.  And  in  the  enacting  clause, 
they  say,  that  such  notes  "  shall  be  taken  and  construed  to 
be  due  and  payable,"  &c.,  expressing  thereby  a  command  to 
certain  persons,  without  saying  expressly  that  the  notes  shall 
be  due  and  payable,  &c.,  for  this  being  the  law  before,  it  was 
not  necessary  to  enact  the  thing  itself,  but  to  instruct  the 
judges  how  they  should  construe  it.  The  mischief  to  be  rem- 
edied was  the  opinion  which  had  "  been  held,"  not  any  defect 
in  the  law  itself.  By  comparing  this  act  with  the  cases  decided 
prior  to  Clerke  v.  Martin,  it  will  be  found  to  contain  no  prin- 
ciples but  such  as  had  been  fully  recognised  by  the  courts  of 
law.  It  follows,  therefore,  that  it  was  passed  simply  to 
restore  the  old  order  of  things,  which  had  been  disturbed  by 
Lord  HOLT. 

The  only  real  effect  of  the  statute  was  to  alter  a  few  words 
in  the  declaration.  The  old  forms  allege  that  the  defendant 
became  liable  by  reason  of  the  custom  of  merchants,  the  new 
say,  that  he  became  liable  by  force  of  the  statute.  Even  Lord 
HOLT  himself  always  admitted,  that  an  indebitatus  assumpsit 
for  money  had  and  received,  or  money  lent,  would  lie,  and  the 
note  would  be  good  evidence  of  it.  His  objections  were  only 
to  the  form  of  the  action,  and  not  to  the  liability  of  the 
parties.  A  promissory  note  was  always  as  much  a  mercantile 
instrument  as  an  inland  bill  of  exchange,  and  there  certainly 
seems  to  be  more  evidence  that  the  former  is  within  the  custom 
of  merchants  than  the  latter,  and  that  it  was  so,  at  an  earlier 
period,  on  the  continent  of  Europe,  from  whence  it  was  intro- 
duced into  England ;  and  when  introduced,  it  came  attended 
with  all  the  obligations  annexed,  which  the  custom  had  at- 
tached to  it. 

We,  sometimes,  in  modern  books,  meet  with  an  assertion 
that  a  promissory  note  was  not  negotiable  at  common  law; 
this  may  be  true,  because  a  promissory  note  was  not  known  at 
common  law,  if  from  the  term  common  law  we  exclude  the  idea 
of  the  custom  of  merchants.  It  was  a  mercantile  instrument, 
introduced  under  the  custom  of  merchants.  But  if  the  custom 


94  V.     COMMERCIAL    LAW 

of  merchants  is  considered,  as  it  really  is,  a  part  of  the  com- 
mon law,  then  the  assertion  that  a  promissory  note  was  not 
negotiable  at  the  common  law,  is  not  correct.  .  .  . 

IX.  The  statute  of  Anne  having  put  the  question  at  rest, 
no  one  has  taken  the  pains  to  examine  the  real  state  of  the 
law,  prior  to  the  statute,  but  one  writer  after  another  has 
repeated  the  assertion,  without  the  least  examination.  In 
England,  it  is  of  no  importance,  whether  they  are  correct  or 
not ;  but  in  this  country,  where  few  of  the  states  have  adopted 
the  statute,  it  becomes  interesting  to  know  how  the  law  really 
stood  before.  .  .  . 

The  observations  in  these  cases  from  Virginia,  respecting 
promissory  notes,  may  be  reduced  to  three  propositions.  1st. 
That  promissory  notes  were  not  negotiable,  before  the  statute 
of  Anne,  so  as  to  enable  the  indorsee  to  bring  an  action  in  his 
own  name.  £d.  That  the  act  of  assembly,  by  assimilating 
notes  to  bonds,  shows  an  intention  in  the  legislature  to  re- 
strain the  negotiability  of  both  within  the  same  limits.  3d. 
That  the  negotiability  given  by  the  act  of  assembly  to  bonds 
and  notes  was  not  "  intended  for  purposes  of  commerce." 

The  first  of  these  propositions  is  clearly  incorrect.  It 
never  was  doubted,  until  the  case  of  Clerke  v.  Martin,  in  the 
first  year  of  Queen  Anne,  that  a  promissory  note  was  a  bill  of 
exchange,  even  between  the  payee  and  the  maker.  .  .  . 

The  second  proposition,  that  the  act  of  assembly,  by  assim- 
ilating notes  to  bonds,  intended  to  restrain  their  negotiability 
within  the  same  limits,  contains  an  argument  which,  if  used 
at  the  trial,  was  not  much  insisted  on,  but  which  seems  to  be 
the  only  ground  upon  which  a  doubt  can  be  supported.  .  .  . 

In  Pennsylvania,  a  number  of  cases  have  occurred,  from  the 
whole  of  which  it  appears  doubtful,  whether  the  statute  of 
Anne  is  to  be  considered  as  having  been  extended  in  practice 
to  that  state,  or  whether  their  actions  upon  promissory  notes 
are  grounded  upon  the  custom  of  merchants.  Their  act  of 
assembly  of  28th  May  1715,  seems  to  have  been  passed  in  the 
full  contemplation  of  the  statute  of  Anne,  but  it  provides  a 
right  of  action  only  for  the  indorsee  against  the  maker,  and 
that  only  to  recover  so  much  "  as  shall  appear  to  be  due  at 
the  time  of  the  assignment,  in  like  manner  "  as  the  payee 


51.     CRANCH:    PROMISSORY    NOTES          95 

might  have  done.  But  it  gives  no  action  to  the  payee  against 
the  maker,  nor  to  the  indorsee  against  any  of  the  in- 
dorsees. .  .  . 

In  the  subsequent  case  of  McCulloch  v.  Houston,  in  the 
supreme  court  of  Pennsylvania,  1  Dall.  441,  Chief  Justice 
McKEAN  was  of  opinion,  that  the  legislature  intended  to  put 
promissory  notes  on  the  same  footing  as  bonds,  at  least,  so 
far  as  to  admit  the  equity  of  a  note  to  follow  it  into  the  hands 
of  the  indorsee.  He  says,  "  before  this  act,  it  appears,  that 
actions  by  the  payee  of  a  promissory  note  were  not  main- 
tained, nor  can  they  since  be  maintained,  otherwise  than  by 
extending  the  English  statute  of  Anne."  And  to  account  for 
this  extension  of  the  statute,  he  supposes,  "  that  actions  upon 
promissory  notes  were  brought  here,  soon  after  the  passing 
of  the  statute,  by  attorneys  who  came  from  England,  and 
were  accustomed  to  the  forms  of  practice  in  that  kingdom, 
but  did  not  perhaps  nicely  attend  to  the  discrimination  with 
regard  to  the  extension,  or  adoption,  of  statutes."  But  this 
could  not  have  happened  in  the  course  of  ten  years,  so  as  to 
have  established  a  practice ;  for  we  are  first  to  suppose  a 
practice  in  England  under  the  statute,  a  subsequent  removal 
of  attorneys  from  England  to  Pennsylvania,  and  then  a  prac- 
tice in  Pennsylvania  to  be  established,  and  all  this  between 
the  passing  of  the  statute  of  Anne  in  the  year  1705,  and  the 
act  of  assembly  in  1715.  A  more  probable  conjecture  seems 
to  be,  that  the  first  settlers  who  came  over  from  England 
about  the  year  1683,  were  well  acquainted  with  the  use  of 
promissory  notes,  and  the  laws  respecting  them,  as  they  had 
been  practised  upon  in  that  country,  for  at  least  thirty  years. 
The  first  emigrations  to  Pennsylvania  were  about  the  time 
when  the  banking  business  of  the  goldsmiths  was  at  its  great- 
est height,  and  it  was  fifteen  or  twenty  years  after  the  first 
settlement  of  Pennsylvania,  before  a  doubt  was  suggested, 
whether  an  action  would  lie  on  a  promissory  note,  as  an  instru- 
ment. Hence,  it  is  probable,  that  actions  on  such  notes  were 
brought  in  the  same  manner  as  they  had  been  used  in  Eng- 
land, to  wit,  on  the  custom  of  merchants;  and  upon  that 
ground,  and  not  upon  the  statute  of  Anne,  probably  rests 
the  present  practice  in  Pennsylvania. 


96  V.     COMMERCIAL    LAW 

The  practice  in  New  Hampshire  and  Massachusetts  seems 
to  have  the  same  foundation.  They  declare  upon  promissory 
notes,  as  instruments,  and  rely  upon  the  express  promise  in 
writing,  without  alleging  a  consideration,  or  referring  to  any 
statute  or  custom  whereby  the  defendant  is  rendered  liable, 
without  a  consideration.  In  Connecticut,  it  is  said  by  Swift, 
in  his  System  of  the  Laws,  that  the  indorsee  must  sue  in  the 
name  of  the  payee;  but  the  payee  can  maintain  an  action 
upon  the  note,  without  alleging  any  custom,  or  statute  or 
consideration.  In  New  York,  they  have  nearly  copied  the 
statute  of  Anne,  as  far  as  it  relates  to  promissory  notes,  but 
how  the  law  was  considered,  before  their  act  of  assembly  of 
1788,  we  are  not  informed.  In  Maryland,  the  statute  of 
Anne  was  considered  as  in  force  and  always  practised  upon. 
Their  declarations  have  been  precisely  in  the  English  form, 
alleging  the  defendant  to  be  liable  by  force  of  the  statute, 
and  the  courts  have  strictly  adhered  to  the  adjudications  in 
England.  Hence,  nothing  conclusive  can  be  inferred  from  the 
practice  of  the  states. 

The  third  proposition  drawn  from  the  reported  cases  in 
Virginia  is,  that  the  negotiability  given  to  bonds  and  notes 
by  the  act  of  assembly  of  that  state,  was  not  intended  for 
purposes  of  commerce.  It  seems  difficult  to  assign  a  reason 
why  the  legislature  should  have  made  bonds  and  notes  as- 
signable, unless  it  was  to  enable  people  to  transfer  that  kind 
of  property  which  existed  in  such  bonds  and  notes ;  and  the 
transfer  of  property  is  the  only  means  of  commerce.  .  .  . 
If,  therefore,  for  the  purposes  of  commerce,  the  legislature 
intended  to  make  those  contracts  negotiable,  which  were  not 
so,  either  in  their  nature  or  by  the  consent  of  the  parties,  it 
is  fair  to  presume,  that  they  did  mean  to  impede  the  nego- 
tiability of  such  as  were  in  their  own  nature  negotiable,  and 
were  expressly  intended  to  be  made  so,  by  the  will  of  the 
contracting  parties?  If  there  were  any  principles  of  law 
which  would  support  the  negotiability  of  a  promissory  note, 
payable  to  order,  it  cannot  be  supposed,  that  the  legislature 
intended,  by  implication  alone,  to  obstruct  their  operation. 
And  even  admitting  that  they  did  not,  by  the  act  making 
bonds  and  notes  assignable,  mean,  to  aid  commerce,  yet  it 


51.     CRANCH:    PROMISSORY    NOTES 


97 


cannot  be  presumed,  that  they  intended  to  wage  war  with 
those  commercial  principles  which  were  already  established. 

This  brings  us  back  again  to  the  first  inquiry,  what  were 
the  principles  upon  which  the  negotiability  of  promissory 
notes  was  supported,  before  the  statute  of  Anne?  If  such 
principles  did  exist,  there  seems  to  be  nothing  in  this  act  of 
assembly  which  prevents  their  full  operation  in  Virginia. 


52.     THE  EARLY  HISTORY  OF  INSURANCE  LAW  * 

BY  WILLIAM  REYNOLDS  VANCE  2 

IT  seems  so  highly  improbable  that  the  practice  of  insur- 
ance, now  deemed  indispensable  to  the  safe  conduct  of 
commerce  on  sea  or  land,  should  have  been  unknown  to  the 
Phoenicians,  Rhodians,  Romans  and  other  ancient  commercial 
peoples,  that  scholars  have  subjected  ancient  writings  to  the 
closest  scrutiny  in  the  effort  to  find  in  them  some  evidence  that 
insurances  were  made  in  early  times.  The  result  has  been 
the  discovery  of  accounts  of  certain  transactions  which  bear 
such  a  resemblance  to  insurance  as  to  have  led  not  a  few 
scholars  to  the  conclusion  that  insurances  were  known  to  the 
ancients,  although  the  business  of  underwriting  commercial 
risks  was  probably  not  highly  developed.  Foremost  among 
these  writers  championing  the  ancient  origin  of  insurance  is 
Emerigon,  whose  brilliant  and  learned  Traite  des  Assurances, 
first  published  in  1783,  is  still  read  with  respect  and  admira- 
tion by  all  students  of  the  subject,  and  cited  as  authority  in 
the  courts  of  all  civilized  countries.  In  this  country  the 
same  view  has  been  advocated  by  Justice  Duer,  whose  discrim- 
inating and  scholarly  Lectures  on  Marine  Insurance  were 
published  in  1845,  and  there  are  not  wanting  recent  text- 
writers  to  reach  the  same  conclusion.3  The  contention  that 

1This  Essay  first  appeared  in  the  Columbia  Law  Review,  1908,  vol. 
VIII,  pp.  1-17,  and  has  been  revised  by  the  author  for  this  Collection. 

2  Professor  of  law,  and  dean  of  the  faculty  of  law,  in  George  Wash- 
ington (Columbian)  University,  since  1903.  Washington  &  Lee  Univer- 
sity, A.B.  1892,  M.A.,  1893,  Ph.D.  1895,  LL.  B.,  1897;  professor  of  law 
in  the  same,  1897-1902;  dean  of  the  law  department  in  the  same,  1902-3. 

Other  Publications:   Law  of  Insurance,  1904. 

3 E.g.,  Joyce  on  Insurance  (1897),  Vol.  I,  p.  14. 


52.     VANCE:    INSURANCE    LAW  99 

insurance  was  known  to  the  ancients  rests  mainly  upon  certain 
passages"  found  in  the  histories  of  Livy  and  Suetonius  and 
in  the  letters  of  Cicero.  Livy  tells  us  that  the  contractors 
who  undertook  to  transport  provisions  and  military  stores 
to  the  troops  in  Spain  stipulated  that  the  government  should 
assume  all  risk  of  loss  by  reason  of  perils  of  the  sea  or  cap- 
ture.1 In  the  second  passage  from  Livy,2  which  gives  in 
detail  an  account  of  the  extensive  frauds  practised  by  one 
Postumius  upon  the  country  during  the  Second  Punic  War 
by  falsely  alleging  that  his  vessels,  engaged  in  the  public 
service,  had  been  wrecked,  or  by  making  false  returns  of  the 
lading  of  old  hulks  that  were  purposely  wrecked,  it  seems  to 
be  taken  as  a  matter  of  course  that  the  government  was 
liable  to  make  good  such  losses.3 

Suetonius,  in  his  life  of  Claudius,  states  that  that  emperor, 
in  order  to  encourage  the  importation  of  corn,  assumed  the 
risk  of  loss  that  might  befall  the  corn  merchants  through 
perils  of  the  sea.4  This  passage  alone  was  sufficient  to  com- 
vince  Malynes  that  Claudius  "  did  bring  in  this  most  laud- 
ible  custom  of  assurances."  5 

Likewise  many  writers  have  thought  that  Cicero  refers  to 
a  transaction  of  commercial  insurance  when  he  writes  to 
Caninius  Sallust,  proquaestor,  that  in  his  opinion  sureties 
should  be  procured  for  any  public  moneys  sent  from  Laodicea, 
in  order  that  both  he  and  the  government  should  be  protected 
from  the  risks  of  transportation.6  These  passages,  of  doubt- 
ful significance  when  read  in  connection  with  the  well-known 

1  Livy,  lib.  23,  c.  49.    "  *  *  *  ut  quce  in  naves  imposuissent  ab  hostium 
tempestatisve  vi  publico  perlculo  essent." 

2  Livy,  lib.  25,  c.  3. 

3  It  is  stated  by  Dr.  August  Bockh  that  in  the  time  of  Alexander  the 
Great  a  certain  Macedonian  grandee  of  Rhodian  birth  living  at  Babylon, 
named  Antimones,  devised  a  plan  of  insuring  masters  against  the  loss 
they  might  suffer  through  the  escape  of  slaves  required  to  serve  in  the 
army,  the  insurer  requiring  a  payment  of  eight  drachmas  for  each  slave, 
and  paying  to  the  master  of  a  lost  slave  the  estimated  value  of  such 
slave.    See  The  Public  Economy  of  the  Athenians  (Second  German  Ed., 
Lamb's  Translation),  p.  101. 

*  Suetonius,  lib.  5,  c.  18.  "Nam  et  negotiatoribus  certa  lucra  propo- 
suit,  suscepto  in  se  damno,  si  cui  quid  per  tempestates  accidisset,  et  naves 
mercaturce  causa,  fabricantibus  magna  commoda  constitute." 

6  Malynes,  Lex  Mercatoria,  (1st  ed.,  1622)  146. 

9  Cicero,  Epist.  ad  Fam.,  lib.  II,  Epist.  17.  "  Laodicece  me  prcedes 
accepturum  arbitror  omnis  pecunice  publicce,  ut  et  mihi  et  populo  oautum 


100  V.     COMMERCIAL    LAW 

fact  that  the  rules  of  general  average,  and  bottomry  and 
respondentia  loans,  transactions  closely  related  to  insurance, 
were  familiar  to  the  ancients,1  have  been  considered  by  these 
writers  adequate  evidence  that  insurance  was  at  least  known 
to  the  commercial  peoples  of  the  ancient  world. 

On  the  other  hand,  a  great  number  of  writers  on  insurance 
consider  that  these  passages  refer  to  other  transactions  than 
insurance,  and  conclude  that  insurance  was  wholly  unknown 
among  the  ancients.  Among  these  are  Grotius  2  and  Bynker- 
shoek  3  on  the  Continent,  and  Park,4  Marshall  and  Hopkins 
in  England. 

This  conflict  of  opinion  as  to  the  practice  of  insurance 
among  the  ancients  is  due  largely  to  the  fact  that  some 
writers  restrict  the  significance  of  the  term  "  insurance " 
more  narrowly  than  others.  The  fact  that  we  find  no  trace 
of  the  insurance  contract  in  the  laws  of  Rome  or  of  any  of 
the  other  ancient  peoples,  indicates  unquestionably  that  if 
the  contract  of  insurance,  as  known  in  modern  times,  was 
known  to  the  ancients  at  all,  its  practical  use  was  so  little 
developed  as  to  have  made  it  insignificant.  But  if  the  term 

sit  sine  vecturce  periculo"  But  the  course  suggested  by  Cicero  can 
hardly  have  been  in  general  use,  for,  according  to  Plutarch,  when  Cato 
the  Younger  wished,  about  the  same  time,  to  transport  a  large  sum  of 
public  money  from  Cyprus  to  Rome  he  adopted  the  following  curious 
device  to  prevent  its  loss  at  sea.  The  money  was  placed  in  a  large 
number  of  small  casks,  to  each  of  which  was  attached  by  means  of  a  long 
rope  a  large  block  of  cork.  By  this  means,  we  are  told,  the  money  was 
carried  to  Rome  with  very  little  loss. 

1  See  Moldenhauer,  Das  Versicherungswesen,  p.  9 ;  Walford,  Encyclo- 
paedia of   Insurance,  Vol.   I,  p.   333.      In   the   speech   against   Lakritos 
attributed  to  Demosthenes,  but  now  thought  to  have  been  written  by 
some   other   Athenian   advocate   about   341    B.  C.,  there  is   set   forth   a 
bottomry  bond  which  contains  provisions  for  general  average  contribu- 
tion, and  other  terms  strikingly  like  those  of  a  modern  bottomry  bond. 
For  the  provisions  of  the  Roman  Law   governing  maritime  loans,  see 
De  nautico  fenore,  Dig.  xxii,  2;    Code,  iv,  33. 

2  Grotius,  De  Jure  Belli  et  Pacis,  ii,  12,  3,  5. 

8 Bynkershoek,  Quaest,  Juris  Pub.  i,  21.  "  Adeo  tamen  ille  contractus 
olim  fuit  incognitus,  ut  nee  nomen  ejus,  nee  rem  ipsam  in  jure  Romano 
deprehendus" 

4  System  of  the  Law  of  Marine  Insurances  (1786).  This  most  care- 
ful and  learned  work  by  Sir  James  A.  Park  (afterward  Mr.  Justice  Park 
of  the  Common  Pleas)  is  the  first  orderly  treatment  in  English  of  the 
law  of  insurance.  It  reflects  much  of  the  spirit  and  genius  of  Lord 
Mansfield,  with  whose  whole  judicial  career  the  author  was  personally 
familiar.  (See  especially  his  summary  of  the  argument  against  the  an- 
cient origin  of  insurance  at  p.  Ixi,  8th  ed.) 


.     VANCE:    INSURANCE    LAW  101 

be  given  a  broader  significance  and  made  to 
include  any  kind  of  conventional  arrangement  by  which 
one  or  more  persons  assume  the  risk  of  perils  to  which  others 
are  exposed  —  that  is,  an  arrangement  for  aiding  the  un- 
fortunate —  then  it  is  equally  unquestionable  that  insurance 
is  as  old  as  human  society  itself.  Friendly  societies  organized 
for  the  purpose,  among  others,  of  extending  aid  to  their  un- 
fortunate members  from  a  fund  made  up  of  contributions 
from  all,  are  as  old  as  recorded  history.  They  undoubtedly 
existed  in  China  and  India  in  the  earliest  times. 1  Among  the 
Greeks  these  societies,  known  as  Eranoi  and  Thiasoi,  are 
known  to  have  existed  as  early  as  the  third  century  before 
Christ.2  These  Grecian  societies  were  largely  religious  and 
ritualistic,  but  among  their  chief  functions,  we  learn,  was 
that  of  providing  for  the  expense  of  fitting  burial  for  mem- 
bers. Similar  societies,  called  Collegia,  existed  in  Rome,  where 
their  establishment  was  attributed  to  Numa.  These  also 
performed  many  of  the  functions  of  benefit  insurance  societies, 
providing  succor  for  the  sick  and  aged  members,  and  burial 
for  those  deceased.3  These  Roman  Collegia  fell  into  disfavor 

1  Walford,  Encyc.  Ins.,  Vol.  IV,  p.  380. 

2Walford,  ibid.;  Martin  Saint-Leon,  Histoire  des  Corporations  de 
Metiers,  p.  23  et  seq. 

8  Martin  Saint-L6on,  Histoire  des  Corporations  de  Metiers,  p.  24. 

At  Lanuvium,  an  ancient  Latin  town  about  nine  miles  distant  from 
Rome,  there  has  been  found  a  marble  bearing  an  inscription  which  sets 
forth  the  constitution  and  regulations  of  one  of  these  friendly  societies  in 
the  time  of  the  Emperor  Hadrian  (A.  D.  117-138).  Parts  of  this  inscrip- 
tion are  thus  translated: 

"An  Association  (collegium)  constituted  under  the  provisions  of  a 
decree  of  the  Roman  Senate  and  People,  to  the  honor  of  Diana  and 
Antinous,  by  which  decree  the  privilege  is  granted  of  meeting,  assembling 
and  acting  collectively. 

"Anyone  desiring  to  pay  a  monthly  subscription  for  funeral  rites 
may  attend  the  meetings  of  the  Association ;  but  persons  are  not  allowed, 
under  the  color  of  this  Association,  to  meet  more  than  once  a  month,  and 
that  only  for  the  purpose  of  contributing  for  the  sepulture  of  the  dead. 

"  You  who  are  desirous  of  becoming  a  new  member  of  this  Association, 
first  read  through  its  laws  carefully,  and  so  enter  it  as  not  afterwards 
to  complain,  or  to  leave  a  subject  of  dispute  to  your  heir. 

"It  is  absolutely  required  by  the  Association  that  anyone  wishing  to 
enter,  shall  pay  an  entrance-fee  of  one  hundred  sesterces,  give  an  am- 
phora of  good  wine,  and  pay  as  monthly  dues  five  asses. 

"Item;  It  is  resolved  that  whoever  shall  have  omitted  to  pay  his 
dues  for  -  -  consecutive  months,  should  the  fate  of  humanity  befall 
him,  there  shall  be  no  claim  on  the  society  for  his  funeral  rites,  even 
though  he  shall  have  made  a  will. 


102  V.     COMMERCIAL    LAW 

under  the  emperors,  but  nevertheless  continued  to  exist,  with 
restricted  functions  and  influence,  up  to  the  time  of  the  fall 
of  the  Empire,  and  it  is  probable  that  their  existence  was 
continued  in  spite  of  the  disorder  due  to  the  numerous  inva- 
sions of  Italy  until  they  reappeared  in  history  as  the  mediae- 
val guilds. l  Of  this,  however,  there  is  no  documentary  proof. 
It  is  certain  that  the  guilds,  which  throughout  Europe 
became  so  numerous  and  influential  from  the  eleventh  to  the 
eighteenth  centuries,  possessed  very  many  of  the  characteris- 
tics of  the  modern  mutual  benefit  association,  and,  as  such, 
carried  on  a  primitive  kind  of  insurance  against  the  misfor- 
tunes incident  to  sickness  and  old  age. 2 

In  England,  these  guilds  existed  among  the  Saxons  before 
the  Conquest.  We  learn  that  among  the  purposes  of  these 
Saxon  guilds  was  to  provide  for  any  member  who  had  had 
occasion  to  take  the  life  of  anyone,  the  wergeld,  or  indemnity 
that,  under  the  Saxon  law,  was  payable  to  the  family  of  the 
person  slain. 3  It  seems  that  these  guilds,  in  addition  to 
providing,  by  contribution  of  the  members,  aid  for  the  sick 
and  burial  of  the  dead  among  their  number,  also  furnished 
indemnity  to  those  who  had  suffered  loss  by  fire  or  theft.4 
After  the  Conquest,  the  English  guilds  became  numerous  and 
influential.  Of  one  of  these,  the  Guild  of  St.  Katherine, 
Aldersgate,  we  learn  that  the  brethren  assisted  any  member 
if  he  "  falle  in  poverte,  or  be  aneantised  thorw  elde  or  thorw 


"Item;  It  is  resolved  that  upon  the  death  of  any  member  of  this 
Association  who  has  paid  his  dues,  three  hundred  sesterces  shall  be  ap- 
propriated out  of  the  treasury  for  him:  of  which  sum  fifty  sesterces 
shall  be  distributed  at  the  burning  of  the  corpse.  The  funeral  procession 
shall  be  on  foot. 

"  Item ;  -  It  is  resolved  that  no  funeral  rites  shall  be  had  by  him  who, 
from  whatsoever  cause,  has  inflicted  death  on  himself. 

"  Item ;  It  is  resolved  that  when  any  member  of  this  Association  shall 
be  made  free,  he  shall  contribute  an  amphora  of  good  wine." 

For  the  Latin  inscription  see  Kenrick's  Roman  Sepulchral  Inscrip- 
tions, p.  67.  Also  Hopkins'  Manual  of  Marine  Insurance,  p.  8. 

1  Palgrave's  Diet,  of  Political  Economy,  Vol.  II,  p.  209. 

2  See  in  general  Brentano,  The  History  and  Development  of  Guilds. 

3  Lambert,  Two  Thousand  Years  of  Guild  Life,  p.  43  et  seq.     Pal- 
grave's  Diet,  of  Political  Economy,  Vol.  II,  p.  209. 

It  is  not  a  very  far  cry  from  this  savage  Saxon  form  of  blood  insur- 
ance to  its  modern  analogue,  employer's  liability  insurance. 

4  Brentano,  The  History  and  Development  of  Guilds,  p.  11;  Cheyney, 
Industrial  and  Social  History  of  England,  p.  72. 


6Q.     VANCE:    INSURANCE    LAW  103 

fyr  oder  water,  theves  or  syknesse."  l  Thus  we  perceive  that 
what  are  now  termed  sick  benefit  insurance  and  burial  insur- 
ance have  existed  from  time  immemorial,  and  that,  while  many 
of  the  benevolences  of  these  fraternal  associations  were  char- 
itable merely,  yet  there  is  to  be  found  in  their  history  distinct 
evidence  of  contractual  insurance,  and  even  of  mutual  fire 
insurance. 

In  like  manner  there  may  be  included  under  the  broad 
definition  of  insurance  given  above  agreements  made  by 
governments,  whether  through  the  medium  of  enactments  or 
through  private  contract,  in  accordance  with  which  indem- 
nity is  provided  for  those  who  suffer  loss  from  peculiar  perils. 
Such  just  and  proper  provisions  for  the  protection  of  the 
citizen  rendering  service  to  the  government  are  doubtless  of 
great  antiquity.  As  stated  above,  Livy  speaks  of  the  prac- 
tice whereby  the  Roman  Republic  indemnified  those  engaged 
in  transporting  military  supplies  for  losses  suffered  by  perils 
of  the  sea  or  acts  of  the  enemy,  as  one  long  established  and 
unquestioned.  2  This  undoubtedly  was  insurance  in  a  limited 
sense.  Indeed,  we  have  evidence  that  a  sort  of  government 
insurance  was  practised  in  times  much  earlier  than  those  of 
which  Livy  wrote.  In  the  Code  of  Hamurabi,  3  which  must 
have  been  enacted  at  least  as  early  as  2250  B.  C.,  we  find 
a  provision  that  a  city  in  which  any  man  should  be  robbed 
of  his  property  should  be  under  obligation  to  indemnify  him 
for  his  loss,  while  if  the  city  and  governor  permitted  such 
disorder  that  a  person  lost  his  life,  the  family  of  the  murdered 
man  were  entitled  to  be  indemnified  from  the  public  treasury. 

Furthermore,  bottomry  and  respondentia  bonds  and  the 
allowing  of  general  average  in  case  of  shipwreck  and  the 
jettison  of  the  goods  of  one  or  more  of  the  joint  adventurers, 
may  well  be  included  under  the  term  insurance  in  its  broadest 
significance,  and  these  were  unquestionably  known  and  much 
used  among  the  ancients,  particularly  among  the  Rhodians. 
The  lender  of  money  in  bottomry  who  could  claim  the  repay- 
ment of  his  loan  only  if  the  vessel  upon  whose  bottom  the 

^Palgrave's  Diet,  of  Political  Economy,  ubi  supra;    Brentano,  The 
History  and  Development  of  Guilds,  p.  20. 
8  Livy,  lib.  23,  c.  49;   lib.  25,  c.  3. 
•§§  23,  24  (ed.  Harper). 


104  V.     COMMERCIAL    LAW 

loan  was  made  completed  the  contemplated  voyage  in  safety, 
was  entitled,  not  merely  to  the  current  rate  of  interest  on 
the  money  loaned,  but  also  to  an  added  sum  which  would 
compensate  him  for  the  risk  he  ran  of  losing  his  whole  prin- 
cipal, and  which,  in  reality,  represented  the  premium  paid 
upon  the  risk  assumed.1  We  therefore  conclude  that  the 
principle  of  insurance,  considered  as  an  arrangement  whereby 
a  person  subjected  to  any  peril  may  be  indemnified  for  loss 
on  account  of  such  peril,  was  known  to  the  ancients  and  made 
use  of  by  them  to  a  very  considerable  extent ;  but  that  com- 
mercial  insurance,  as  practised  so  extensively  in  modern 
times,  was  either  unknown  to  them  or  little  used. 

We  are,  therefore,  safe  in  concluding  that  the  practice  of 
insurance  as  an  important  element  of  commerce  and  social 
economy,  has  had  its  origin  in  relatively  recent  times,  but  we 
cannot  with  any  accuracy  fix  the  date  of  its  beginning  nor 
determine  indisputably  what  city  or  country  is  entitled  to 
the  credit  of  having  originated  it.  Some  scholars  have  pro- 
fessed to  discover  evidence  that  commercial  insurance  was 
first  developed  in  Portugal,  while  some  others  favor  Spain 
and  Flanders.2  More  recent  research,  however,  made  among 
the  ancient  records  of  the  Chamber  of  Commerce  of  Florence 
has  established  satisfactorily  that  insurance  had  its  origin 
in  the  great  commercial  cities  of  Northern  Italy,  where  it 
must  have  been  in  common  use  among  the  merchants  engaged 
in  carrying  on  the  large  foreign  trade  of  those  cities  as  early 
as  the  beginning  of  the  fourteenth  century,  and  possibly 
more  than  a  century  earlier.  3  Among  the  records  of  the 

JIn  Chapter  XXIII  of  The  Public  Economy  of  the  Athenians,  by 
August  Bockh  (Second  German  Ed.,  Lamb's  Translation)  is  found  an 
interesting  account  of  bottomry  loans  among  the  Athenians. 

2  See  the  statement  of  these  conflicting  claims  in  II  Contratto  di 
Assecuratione  nel  Medio  Evo,  by  Enrico  Bensa,  18  p.  42  et  seq.  Rich- 
ards, in  his  Insurance  (1892),  states,  without  citing  authority,  that  "a 
Chamber  of  Assurance  was  established  in  Bruges  as  early  as  1310."  This 
can  scarcely  be  correct. 

8  Bensa,  II  Contratto  di  Assecuratione  nel  Medio  Evo,  p.  48.  Gold- 
schmidt,  Handbuch  des  Handelsrechts,  p.  354,  et  seq.  This  valuable  and 
scholarly  treatise  contains  an  exceedingly  interesting  account  of  the 
origin  of  the  practice  of  insurance  in  the  Middle  Ages.  At  p.  360  the 
author  expresses  the  opinion  that  reference  is  made  to  insurance  in  the 
following  extract  from  an  ordinance  of  the  City  of  Pisa  enacted  prior 
to  1233: 


52.     VANCE:    INSURANCE    LAW  105 

Florentine  Chamber  of  Commerce  are  the  books  of  Francesco 
del  Bene-and  Company,  of  Florence,  which  set  forth  commer- 
cial transactions  dating  from  A.  D.  1318.  In  these  books  are 
recorded  the  items  of  expense  incident  to  trade  in  Flemish 
cloth  and  other  articles.  Among  these  items  one  frequently 
finds  the  cost  of  insuring  the  goods  in  transit.1  From  the 
character  of  the  references  to  insurances  thus  made,  we  can 
readily  infer  that  as  early  as  1318  the  custom  of  making 
insurances  upon  goods  subject  to  peril  of  transportation 
either  on  sea  or  land  had  become  a  customary  incident  of 
traffic.  This  fact  justifies  the  conclusion  that  among  these 
Italian  cities  insurance  had  been  in  use  many  years  before 
the  date  of  the  entry  in  these  old  Florentine  books.  The 
earliest  policy  of  insurance  now  extant  was  made  in  Genoa 
in  the  year  1347.  This  quaint  old  document  which,  it  will 
be  observed,  was  in  the  form  of  a  promise  to  repay  a  fictitious 
loan  upon  the  happening  of  any  misfortune  to  the  vessel 
insured, 2  is  set  forth  in  all  of  its  barbarous  Latin  in  the  note 
below.8  The  first  certain  record  of  an  insurance  transaction 

"  Ordinamus,  ut  si  acciderit  aliquem  vel  aliquos  cives  pisanos  in 
alienis  partibus  constitutes,  navim  vel  naves  aliquos  securare  —  fidantiam 
vel  securitatem  ipsis  navibus  et  hominibus  eorumque  rebus  adhibitam 
ab  eisdem  —  ratain  habere  debeant,  et  firmam  inviolatamque  servare." 

There  are  unsupported  statements  to  the  effect  that  insurance  was 
invented  by  the  Jews  to  protect  their  goods  during  their  flight  into  Italy 
after  their  expulsion  from  France  in  1182,  and  that  the  Italian  merchants 
learned  it  from  these  Jews.  See  Anderson's  History  of  Commerce,  Vol.  I, 
p.  82.  The  story  is  inherently  improbable.  See  Duer,  Marine  Ins., 
Vol.  I,  p.  33. 

1  Extracts  from  Books  of  Francesco  Del  Bene  e  Compagnia  di  Ferenze, 
taken  from  Bensa,  II  Contratto  di  Assecuratione  nel  Medio  Evo,  p.  183: 

" Messer  Lapo  e  Dosso  de'  Bardi  e  Compagne  devno  avere  di  XVIIII 
d'Aprile,  anno  mille  trecento  dicenove,  per  rischio  di  panni  inscritti  in 
qua  che  ci  fecero  nella  fiera  di  Proino  santaiuolo  anno  mille  trecento, 
diciotto  condotti  di  Fiandra  e  di  Brabante  e  di  Champagnia  e  di  Francia 
infino  a  Firenze  a  tutto  loro  rischio  del  costo  e  delle  spese  che  ci  hanno 
fatte  suso  .  .  . 

"  i  quali  panni  costarono  con  tutte  ispese  condotti  in  Pisa  1.  sei  rnila 
novecento  quarantasette  e  s.  diecenove  d.  ire  a  fiorini  che  montano  a 
ragione  di  lire  otto  s.  quindici  centenaio  di  rischio  siccome  ne  fece  patto 
e  mercato,  1.  sei  cento  sette  s.  diecenove  a  fiorino.  .  .  /' 

2  This   curious    form   is   probably   due   to   the   surviving   influence  of 
bottomry  loans  previously  of  frequent  occurrence,  but  prohibited  by  the 
church  between  1227  and  1235.     Goldschmidt,  Handbuch  des  Handels- 
rechts,  p.  363. 

3 "  In  nomine  D.  Amen,  Ego  Georgius  Lecavellum  civis  Janue  con- 
fiteor  tibi  Bartholomeo  Basso  filio  Bartholomei  me  habuisse  et  recepisse 
a  te  mutuo  gratis  et  amore  libras  centum  septem  Janue.  Renuncians  ex- 


106  V.     COMMERCIAL    LAW 

at  Bruges  is  of  the  year  1370,  but  the  policy  in  question  was 
evidently  issued  by  a  Genoese  underwriter. l  The  earliest 
trustworthy  evidence  of  the  practice  of  insurance  at  Barce- 
lona is  found  in  certain  ordinances  of  the  City  of  Barcelona, 
published  in  1435,  which  contain  extensive  provisions  for  the 
regulation  of  marine  insurance.2  The  particularity  of  these 
regulations  shows  clearly  that  the  practice  of  insurance  had 
already  become  extensive  and  of  much  importance  in  the  com- 
mercial life  of  the  Catalonian  city  some  time  before  the  date 
mentioned,  but  it  is  hardly  probable  that  it  antedated  the 
similar  practice  in  the  Italian  cities,  which,  as  we  have  seen, 
certainly  existed  considerably  more  than  a  century  earlier 
than  the  date  of  the  Barcelona  ordinances.  Another  positive 
reason  for  thinking  that  insurance  was  of  later  development 
in  Barcelona  than  in  the  Italian  cities  is  found  in  the  earliest 
extant  edition  of  the  Consolat  de  Mar,  known  to  have  been 
published  at  Barcelona  in  1494.  This  celebrated  collection 

ceptioni  dicte  pecunie  ex  dicta  causa  non  habite,  non  recepte,  non  nume- 
rate et  omni  juri. 

"  Quas  libras  centum  septem  Janue,  vel  totidem  ejusdem  monete  pro 
ipsis,  convenio  et  prometto  tibi  solemni  stipulatione  reddere  et  restituere 
tibi  aut  tuo  certo  nuncio  per  me  vel  meum  nuncium. 

"  usque  ad  menses  sex  proxime  venturos,  salvo  et  reservato,  et  hoc 
sane  intellecto,  quod  si  cocha  tua  de  duabus  copertis  et  uno  timono,  vocata 
8.  Clara  que  nunc  est  in  portu  Janue  parata,  Deo  dante,  ire  et  navigare 
presentialiter  ad  Majorichas  iverit  et  navigaverit  recto  viagio  de  portu 
Janue  navigando  usque  ad  Majorichas  et  ibi  applicuerit  sana  et  salva, 
quod  tune  et  eo  casu  sit  prcesens  instrumentum  cassum  et  nullius  valoris 
ut  si  facta  non  fuisset.  Suscipiens  in  me  omnem  risicum  et  periculum 
dicte  quantitatis  pecunie  quousque  dicta  cocha  aplicuerit  Majoricis,  navi- 
gante  recto  viagio  ut  supra.  Et  etiam  si  dicta  cocha  fuerit  sana  et  salva 
in  aliqua  parte,  usque  ad  dictos  sex  menses,  sit  similiter  prcesens  instru- 
mentum cassum  et  nullius  valoris,  ac  si  factum  non  fuisset. 

"  In  dictum  modum  et  sub  dictis  conditionibus  promitto  tibi  dictam 
solutionem  facere,  alioquin  penam  dupli  dicte  quantitatis  pecunie  tibi 
stipulanti  dare  et  solvere  promitto  cum  restitutione  damnorum  et  expen- 
sarum  que  propterea  fierent  vel  sustinerentur  litis  vel  extra,  rails  manen- 
tibus  supra  dictis  et  sub  ypotheca  et  obligatione  bonorum  meorum,  habi- 
torum  vel  habendorum. 

"  Actum  in  Janue  in  Banchis  in  anqulo  domus  Carli  et  Boniface 
Ususmaris  fratrum,  anno  dom.  Nat.  MCCCXXXXVII  indit.  XV  se- 
rundum  cursum  Janue  die  XXIII  Octobris  circa  vesperas.  Testes  Nico- 
laus  de  Tacio  draperius  et  Johannes  de  Recho,  filius  Bonanati  cives 
Janue."  [Printed  in  Bensa,  II  Contratto  di  Assecuratione  nel  Medio 
Evo,  p.  192.1 

1  Bensa,  II  Contratto  di  Assecurazione  nel  Medio  Evo,  p.  48,  Genova, 
1884. 

2  See  Walford,  Encyc.  Ins.,  Vol.  I,  p.  251,  where  these  ordinances  are 
set  forth  in  part.     Also  Duer,  Marine  Ins.,  Vol.  I,  pp.  34,  35. 


68.     VANCE:    INSURANCE    LAW  107 

of  sea  laws,  which  under  its  Italian  name  of  Consolato  del 
Mare,  had  for  three  centuries  such  wide  currency  throughout 
Europe,  and  which  is  generally  believed  to  have  been  first 
published  in  Barcelona  as  early  as  the  middle  of  the  thirteenth 
century,  contains  no  reference  whatever  to  insurance. 1 

It  has  been  generally  believed  that  the  contract  of  insur- 
ance was  first  used  in  underwriting  marine  risks,  and  it  is 
indisputable  that  it  had  its  earliest  and  most  important  devel- 
opment in  connection  with  maritime  interests.  Nevertheless, 
it  is  interesting  to  observe  from  these  ancient  books  of  Fran- 
cesco del  Bene  and  Company,  the  Florentine  merchants  al- 
ready referred  to,  that  as  early  as  1318  insurances  were 
customarily  made  against  loss  by  reason  of  dangers  incident 
to  land  transportation,  as  well  as  to  that  by  sea,  and  that 
shipments  of  specie  were  also  at  that  early  day  insured  just 
as  in  modern  times.2 

The  daring  and  adventurous  merchants  of  the  Italian 
cities  carried  on  extensive  commerce  with  all  of  civilized  Eu- 
rope, and  during  the  fourteenth  and  fifteenth  centuries  their 
practice  of  insuring  their  ventures  spread  with  their  trade  to 
every  considerable  trading  town  of  the  Continent  and  of 
England.  The  usages  of  insurance,  therefore,  readily  took 
on  the  same  international  character  that  had  already  been 
impressed  upon  the  other  customs  of  traders  engaged  in  inter- 
national mercantile  pursuits.  The  usages  governing  the 
older  forms  of  commerce,  especially  maritime  usages,  had 
found  expression  in  collections  of  regulations  and  ordinances 
of  great  antiquity,  that  came  to  possess  the  greatest  author- 
ity throughout  Europe  rather  by  their  general  acceptance 
than  by  force  of  authoritative  enactment.  These  "  sea 
laws,"3  as  they  were  known,  had  their  origin  much  earlier 

1  There  is  an  excellent  brief  history  of  the  Consolato  del  Mare,  by 
Sir  Travers  Twiss,  in  9  Encyclopaedia  Britannica,  317,  and  of  the  other 
ancient  sea  laws  by  the  same  author  in  21  Encyclopaedia  Britannica,  583. 

2Bensa,  II  Contratto  di  Assecuratione  nel  Medio  Evo,  p.  51.  It  is 
highly  probable  that  the  practice  of  insurance  during  the  Middle  Ages 
was  not  so  narrowly  confined  to  marine  risks  as  is  generally  believed. 
Nicholas  Magens,  in  his  essay  on  Insurance,  published  at  London,  in 
1755,  at  p.  267,  gives  a  complete  copy  of  a  policy  written  at  Hamburg 
in  1720,  on  the  lives  of  certain  cattle.  Here  we  have  our  very  modern 
live-stock  insurance ! 

'The  history  of  these  sea  laws  is  very  uncertain.     21  Encyclopaedia 


108  V.     COMMERCIAL    LAW 

than  the  beginning  of  the  practice  of  insuring  ventures  at 
sea,  for  otherwise  they  would  not  have  been  silent  on  so 
important  an  adjunct  to  successful  commerce.  But  their 
existence  undoubtedly  greatly  facilitated  the  rapid  growth 
of  a  body  of  international  insurance  customs,  which  soon 
became  incorporated  with  the  greater  body  of  commercial 
usages  and  became  an  integral  part  of  the  law  merchant, 
having  the  same  sanctions  and  enforced  through  the  same 
procedure  before  conventional  merchant  courts. 

As  early  as  1411  the  business  of  making  contracts  of  insur- 
ance had  become  of  sufficient  importance  among  the  Vene- 
tians to  attract  legislative  action,  for  on  May  15th  of  that 
year  we  find  that  an  ordinance  was  passed  condemning  and 
prohibiting  the  prevalent  practice  among  Venetian  brokers 
of  underwriting  foreign  risks.  But  it  is  evident  that  under- 
writers did  not  at  that  early  day  regard  insurance  regula- 
tions with  any  greater  respect  than  do  their  successors  of 
the  present  time,  for  in  June,  1424,  another  ordinance  again 
prohibited  insurances  upon  foreign  vessels  or  goods,  the  pre- 
amble carefully  explaining  that  an  added  reason  for  not 
underwriting  such  risks  lay  in  the  fact  that  war  was  raging 
between  the  Genoese  and  the  Florentines  and  Catalonians,  on 
which  account  the  Venetians  should  refrain  from  aiding  any 
of  the  belligerents.  After  this  insurance  became  a  favorite 
subject  for  regulation,  often  of  a  very  drastic  character. 
From  the  texts  of  these  ordinances  it  is  evident  that  in  Venice 
the  business  of  underwriting  early  became  localized,  just  as 
in  London  it  was  carried  on  in  Lombard  Street,  for  in  these 
Venetian  ordinances  it  was  usually  provided  that  they  should 
be  read  at  noon  on  the  "  Street  of  Insurances  at  the 
Rialto."  * 

In  1435  insurance  ordinances,  still  extant,  were  published 
at  Barcelona.  As  already  stated,  the  edition  of  the  Consolat 
de  Mar  published  at  Barcelona  in  1494  contained  no  reference 
to  insurance,  nor  did  the  Laws  of  Wisby  or  of  the  Hanse 

Britannica,  583.  They  are  collected  and  translated  in  Malynes'  Lex 
Mercatoria  and  Magens'  Essay  on  Insurance,  and  in  Cleirac's  Les  Us 
et  Coustumes  de  la  Mer,  with  extensive  comments.  They  are  easily 
accessible  to  American  students  in  30  Federal  Cases,  Appendix. 

1  For  a  more  complete  account  of  the  Venetian  ordinances  see  Hop- 
kins, Marine  Ins.,  p.  20  et  seq. 


50.     VANCE:    INSURANCE    LAW  109 

Towns,  which,  though  of  earlier  origin,  were  published  prob- 
ably about  this  same  time.  It  seems  that  these  laws  of  the 
northern  commercial  cities  were  little  more  than  adaptations 
of  the  much  earlier  laws  of  Oleron,  which  likewise  make  no 
mention  of  insurance.  In  1647  there  was  published  at  Bor- 
deaux Cleirac's  Us  et  Coustumes  de  la  Mer,  which  contained 
the  text  of  the  Guidon  de  la  Mer.  This  famous  treatise  on 
sea  laws,  which  was  compiled  by  some  unknown  author  of 
Rouen  between  the  years  1556-1600,  treated  extensively  of 
marine  insurance.  In  1681  the  Marine  Ordinances  of  Louis 
XIV  were  published.  These  ordinances,  supposed  to  be 
largely  the  work  of  Colbert,  Louis  XIV's  gifted  Minister  of 
Finance,  provide  for  the  regulation  of  the  business  of  insur- 
ance with  a  completeness  of  detail  that  speaks  clearly  both 
of  the  importance  of  commercial  insurance  at  that  time  and 
of  the  age  and  extent  of  the  practice  that  could  make  such 
detail  possible.  Additional  evidence  of  the  important  place 
assumed  by  insurance  during  the  sixteenth  century  is  found 
in  the  publication  of  treatises  on  insurance  by  Santerna1 
in  1552  and  by  Straccha2  in  1569.  The  excellent  treatise 
of  Roccus,  an  eminent  jurist  of  Naples,  was  not  published 
until  1655,  much  later  than  the  first  English  treatise  by 
Gerard  Malynes,  which  first  appeared  in  1622. 

The  introduction  of  the  practice  of  insurance  into  England 
is  shrouded  in  the  same  obscurity  that  envelops  its  origin  on 
the  Continent.  Gerard  Malynes,  in  his  quaint  treatise  on  the 
law  merchant,  published  in  1622,  asserts  that  policies  of 
insurance  were  written  in  England  at  an  earlier  date  than 
in  the  Low  Countries,  and  that  in  fact  Antwerp,  then  in  the 
meridian  of  its  glory,  learned  the  practice  of  insurance  from 
London.  This  conclusion  he  reached  through  the  wording  of 
the  policies  issued  at  Antwerp,  which  "  do  make  mention  that 
it  shall  be  in  all  things  concerning  the  said  assurances  as  was 
accustomed  to  be  done  in  Lombard  Street,  in  London." 
Malynes'  reasoning  is  far  from  convincing,  and  his  conclusion 
is  probably  incorrect.  It  is  highly  probable,  however,  that 

"  De  Assecurationibus  et  Sponsionibus  Mercatorum."     Santerna  was 
distinguished  Portuguese  lawyer. 
2 "  De  Assecurationibus." 


110  V.     COMMERCIAL    LAW 

the  enterprising  Lombards  who  had  taken  up  their  residence 
in  London,  in  many  cases  as  representatives  of  Italian  trading 
houses,  did  not  long  delay  in  bringing  to  England  the  device 
of  having  their  commercial  ventures  assured  by  underwriters 
which  had  proved  so  advantageous  to  the  trade  of  their 
Italian  associates.  The  activity  of  these  London  Lombards 
was  so  great  as  to  give  a  name  to  Lombard  Street,1  where 
they  dwelt  and  carried  on  business  as  pawn-brokers,  gold- 
smiths and  importers  of  foreign  goods.  That  the  introduc- 
tion of  insurance  into  England  is  to  be  attributed  to  Italians 
there  resident  is  not  only  highly  probable  in  itself,  but  is  also 
supported  by  much  circumstantial  evidence.  Thus  one  of 
the  clauses  of  the  modern  Lloyds'  policy  provides  that  the 
policy  "  shall  be  of  as  much  force  and  effect  as  the  surest 
writing  or  policy  of  assurance  heretofore  made  in  Lombard 
Street."  We  know  also  that  the  earliest  policies  issued  in 
London  of  which  we  have  any  certain  knowledge  were  written 
in  Italian  with  English  translations  attached.2 

The  first  certain  record  of  an  insurance  transaction  in 
England  is  found  in  the  report  of  the  case  of  Emerson  c.  De 
Sallanova?  determined  in  a  court  of  admiralty  in  1545. 
Curiously  enough  the  insurance  involved  in  this  proceeding 
was  not  against  the  perils  of  the  sea,  as  might  have  been 
expected,  but  against  possible  loss  consequent  upon  the  with- 
drawal by  the  King  of  France  of  a  safe  conduct.  The  oldest 
English  policy  extant,  dated  September  20,  1547,  is  set  forth 
in  both  Italian  and  English  in  the  report  of  Broke  c.  May- 
nard,  an  admiralty  cause. 4  The  copy  of  this  policy  is  much 
mutilated,  but  a  somewhat  similar  policy  involved  in  Caval- 
chant  c.  Maynard,  bearing  date  only  a  year  later,  is  found 
in  good  condition  among  the  records  of  the  proceedings  in 
admiralty.  The  English  version  of  this  venerable  instrument 
is  given  in  the  note  below. 6 

1  Malynes  explains  the  name  of  Lombard  Street  by  saying  that  "  cer- 
tain Italians  of  Lombardy  kept  there  a  pawn-house  or  Lombard"   [cf. 
our  term  "lumber-room"]. 

2  See  Selden  Soc.   Pub.,  Vol.  XI,  pp.  45-58,  where  several   of  these 
policies  are  given. 

3  Selden  Soc.  Pub.,  Vol.  XI,  p.  Ixvi.        *  Selden  Soc.  Pub.,  Vol.  XI,  p.  47. 
8  Selden  Soc.  Pub.,  Vol.  XI,  p.  46. 

"In  the  name  of  God  Amen  the  XXVIth  daye  of  November,  1548. 


68.     VANCE:    INSURANCE    LAW  111 

It  is  evident  that  prior  to  the  time  of  Lord  Mansfield's 
accession  to  the  bench,  the  development  of  insurance  law  in 
England  followed  the  same  lines  as  that  of  the  other  branches 
of  the  law  merchant.  It  was  generally  understood  that  the 
common  law  courts,  which  did  not  recognize  the  quasi-inter- 
national customs  of  merchants,  afforded  no  fit  forum  for  the 
determination  of  causes  between  merchants.  Hence  all  early 
insurance  disputes  must  have  been  settled  by  conventional 
merchant  courts  or  arbitrators,  who,  it  seems,  might  be 
appointed,  upon  petition,  by  the  Privy  Council,  the  Lord 
Mayor  of  London,  or  by  the  Court  of  Admiralty.  Thus, 
in  the  record  of  the  proceedings  before  admiralty  prior  to 
1570  we  find  a  petition  by  the  owner  of  insured  goods  asking 
that  arbitrators  be  appointed  and  the  underwriters  made  to 
pay,  "  forasmuche  as  your  said  rater  hath  noe  remedye  by  the 
ordre  and  course  of  the  common  lawes  of  the  realme,  and 
that  the  ordre  of  insurance  is  not  grounded  upon  the  lawes 
of  the  realme,  but  rather  a  civill  and  maritime  cause  to  be 
determined  and  decided  by  civilians,  or  else  in  the  highe  courte 
of  Admiraltye."  1 

There  were  evidently  numerous  disputes  about  the  payment 
of  insurances,  and  there  were  probably  many  cases  in  which 
the  underwriters  refused  to  perform  the  judgments  of  the 
merchant  courts,  whose  great  weakness  lay  in  the  lack  of  a 
sheriff,  for  in  the  admiralty  records  for  the  year  1570  is 
found  a  petition  on  behalf  of  certain  foreign  merchants  who 
complained  that  they  could  not  get  their  insurance  paid.  In 
the  same  year  there  was  an  application  by  an  "  Easterling  " 
for  the  appointment  of  arbitrators  "  forasmuche  as  the  matter 
consistethe  muche  upon  the  ordre  and  usage  of  merchantes 

Thomas  Cavalchant  and  John  Gyralde  and  their  company  of  London 
make  themselves  to  be  assured  by  the  order  and  accompte  of  Pauli  Ciciny 
of  Messena  or  of  eny  other  whatsoever  they  be  upon  the  ship  called  the 
Sancta  Maria  de  Porto  Salvo  patron  Matalyno  de  Maryny  or  how  soo 
ever  better  she  were  called  or  patronysed  upon  a  hundrithe  peaces  carseys 
and  fryseys  or  eny  other  wares  laden  or  to  be  laden  in  Hampton  untyll 
they  be  arryved  in  Messena  and  discharged  on  lande  in  good  saufty. 
And  the  assurers  be  content  that  this  wrytinge  be  of  as  much  forse  and 
strength  as  the  best  that  ever  was  made  or  myghte  be  made  in  this 
Lombard  strete  of  London  according  to  the  order  and  customes  whereof 
every  oon  that  assureth,  as  they  that  cause  them  to  be  assured  or  content 
to  be  bound.  And  God  sende  the  good  shipp  in  saufty." 

Leiden  Soc.  Pub.,  Vol.  XI,  p.  Ixxvi. 


112  V.     COMMERCIAL    LAW 

by  whom  rather  than  by  course  of  law  yt  may  be  forwarded 
and  determyned."  It  is  noteworthy  that  when  the  Court  of 
Admiralty  made  the  reference,  the  commission  to  hear  the 
case  ran  to  certain  English  and  foreign  merchants.1 

The  extracts  just  given  from  the  admiralty  records  show 
that  the  inability  of  the  conventional  merchant  courts  to  en- 
force their  judgments  compelled  the  merchants  and  under- 
writers to  seek  more  formal  and  efficient  tribunals  before 
which  to  bring  their  causes.  They  first  turned  to  the  courts 
of  admiralty,  which  easily  assumed  jurisdiction  of  maritime 
and  foreign  contracts  of  insurance,  and  readily  took  cogni- 
zance of  the  customs  of  merchants.  But  for  some  reason,  not 
easily  understood,  the  courts  of  admiralty  did  not  prove  satis- 
factory tribunals  for  the  determination  of  insurance  causes, 
and  relatively  few  of  such  causes  were  brought  before  them.2 
Lord  Coke's  misleading  report  of  Crane  v.  Bell?  a  case  de- 
cided in  1546,  has  been  the  source  of  several  mistaken  state- 
ments that  the  writ  of  prohibition  granted  in  that  case  by  a 
common  law  court  took  away  from  the  admiralty  courts  all 
jurisdiction  of  insurance  questions.4  As  a  matter  of  fact, 
however,  Crane  v.  Bell  had  nothing  to  do  with  insurance,5 
and  we  know  that  admiralty  courts  still  heard  insurance  cases 
for  nearly  half  a  century  after  the  date  of  that  case.6 

Whatever  may  have  been  the  cause,  it  is  clear  that  the 
admiralty  judges  contributed  little  to  the  development  of 
insurance  law,  and  that  during  the  latter  part  of  the  six- 
teenth century  litigants  sometimes  felt  compelled  to  carry 
insurance  causes  to  the  common  law  courts,  in  some  cases 
even  after  they  had  been  heard  and  determined  by  merchant 
courts.  Lord  Coke's  report  of  Dowdale's  Case7  refers  to 

1  Ibid. 

2  Id.,  Vol.  XI,  p.  Ixxx. 

3  4  Coke  Inst.,  139. 

4  E.g.,  Bradley,  J.,  in  Insurance  Co.  v.  Dunham  (1870),  11  Wall.  1,  34. 
"This  is  made  perfectly  clear  by  Selden  Soc.  Pub.,  Vol.  VI,  pp.  Ixviii, 

129,  229. 

«E.g.,  Maye  c.  Hawkyns  (1573),  Selden  Soc.  Pub.,  Vol.  XI,  p.  149. 
In  this  case  the  insurer  of  goods  taken  by  pirates  was  subrogated  to  the 
rights  of  the  insured  against  Hawkyns,  the  doughty  English  admiral, 
who  had  recaptured  the  goods. 

7  6  Coke's  Rep.,  46  b.  The  case  referred  to  is  believed  to  be  the 
earliest  common  law  insurance  case  of  which  any  record  was  made. 


50.     VANCE:    INSURANCE    LAW  113 

an  action  brought  in  a  common  law  court  on  an  insurance 
policy  in  1588.  But  manifestly  the  common  law  courts  of 
that  day,  with  their  highly  technical  and  tedious  rules  of 
procedure,  as  governed  by  precedents  of  agricultural  rather 
than  mercantile  origin,  were  ill  adapted  for  the  settlement  of 
merchants'  disputes.  Thus  it  appears  that  at  the  beginning 
of  the  seventeenth  century  persons  having  insurance  causes 
were  without  a  satisfactory  tribunal  for  their  determination. 
The  conventional  courts  could  not  enforce  their  judgments, 
the  courts  of  admiralty  had  proved  inadequate,  possibly 
because  of  the  vexatious  jealousy  of  the  common  law  courts 
in  unreasonably  restricting  their  jurisdiction,  while  the  com- 
mon law  courts  were  wholly  unfit.  The  merchants  and  under- 
writers naturally  sought  relief  from  Parliament,  and  secured, 
in  1601,  the  first  English  insurance  act,1  "  for  the  obtaining 
whereof,"  wrote  Malynes,  "  I  have  sundry  times  attended 
the  committees  of  the  said  Parliament,  by  whose  means  the 
same  was  enacted  not  without  some  difficulty ;  because  there 
was  [sec]  many  suits  in  law  by  action  of  assumpsit  before 
that  time  upon  matters  determined  by  the  Commissioners  for 
Assurances,  who  for  want  of  power  and  authority  could  not 
compel  contentious  persons  to  perform  their  ordinances ;  and 
the  party  dying,  the  assumpsit  was  accounted  void  in  law." 
The  preamble  of  this  act  is  exceedingly  interesting,  since  it 
not  only  shows  the  great  importance  of  the  business  of  insur- 
ance at  the  time  of  its  enactment,  and  a  remarkably  clear 
understanding  of  the  real  nature  of  insurance,  but  it  also 
gives  in  striking  summary  the  history  of  insurance  law  and 
practice  during  the  preceding  century,  which  necessitated  the 
establishment  of  the  court  created  by  the  act.  This  pre- 
amble, in  part,  is  as  follows : 

"  (2)  And  whereas  it  hath  been  time  out  of  mind  an  usage 
amongst  merchants,  both  of  this  realm  and  of  foreign  nations, 
when  they  make  any  great  adventure,  (especially  into  remote 
parts)  to  give  some  consideration  of  money  to  other  persons 
(which  commonly  are  in  no  small  number)  to  have  from  them 
assurance  made  of  their  goods,  merchandizes,  ships  and  things 

1  St.  43  Eliz.,  c.  12. 

'Lex  Mercatoria,  p.  106  (3rd  ed.,  1686). 


114  V.     COMMERCIAL    LAW 

adventured,  or  some  part  thereof,  at  such  rates  and  in 
such  sort  as  the  parties  assurers  and  the  parties  assured  can 
agree,  which  course  of  dealing  is  commonly  termed  a  policy 
of  assurance;  (3)  by  means  of  which  policies  of  assurance  it 
cometh  to  pass  upon  the  loss  or  perishing  of  any  ship,  there 
followeth  not  the  undoing  of  any  man,  but  the  loss  lighteth 
rather  easily  upon  many  than  heavily  upon  few,  and  rather 
upon  them  that  adventure  not  than  those  that  do  adventure, 
whereby  all  merchants,  especially  of  the  younger  sort,  are 
allured  to  venture  more  willingly  and  more  freely;  (4)  and 
whereas  heretofore  such  assurers  have  used  to  stand  so  justly 
and  precisely  upon  their  credits,  as  few  or  no  controversies 
have  arisen  thereupon,  and  if  any  have  grown,  the  same  have 
from  time  to  time  been  ended  and  ordered  by  certain  grave 
and  discreet  merchants  appointed  by  the  lord  mayor  of  the 
city  of  London,  as  men  by  reason  of  their  experience  fittest  to 
understand,  and  speedily  to  decide  those  causes,  until  of  late 
years  that  divers  persons  have  withdrawn  themselves  from 
that  arbitrary  course,  and  have  sought  to  draw  the  parties 
assured  to  seek  their  monies  of  every  several  assurer,  by  suits 
commenced  in  Her  Majesty's  courts,  to  their  great  charges 
and  delays." 

By  the  provisions  of  this  act  authority  was  given  to  the 
Lord  Chancellor  or  to  the  Lord  Keeper  of  the  Great  Seal,  to 
issue  commissions  directed  to  "  the  judge  of  the  admiralty  for 
the  time  being,  the  recorder  of  London  for  the  time  being, 
two  doctors  of  the  civil  law,  and  two  common  lawyers,  and 
eight  grave  and  discreet  merchants,  or  any  five  of  them," 
with  authority  to  hear  and  determine  in  a  summary  manner 
insurance  causes.  This  court  of  insurance  commissioners  did 
not,  however,  prove  successful,  owing  to  the  fact  that  its 
jurisdiction  was  confined  to  causes  arising  on  policies  issued 
in  London,  and  construed  not  to  extend  to  any  other  insur- 
ances than  those  on  goods.  The  court  was  also  held  to  be 
open  only  to  the  insured  and  not  to  the  underwriter,  and  its 
judgments  could  not  be  pleaded  in  bar  to  a  subsequent  action 
at  law.1  We  are  not  surprised,  therefore,  to  learn  that  this 

1  For  the  history  of  the  Court  of  Insurance  Commissioners,  see  Cun- 
ningham, Law  of  Insurances  (3rd  ed.,  1766)  pp.  163-169.  Also  3  Black- 
stone's  Comm.,  74,  75. 


58.     VANCE:    INSURANCE    LAW  115 

special  court  lapsed  into  disuse,  and  died  of  inanition  within 
a  century  after  its  creation. 

The  failure  of  this  special  court  seems  to  have  discouraged 
any  further  attempts  to  better  an  almost  intolerable  situa- 
tion, for  the  hundred  and  fifty  years  intervening  between  the 
enactment  of  43  Eliz.  and  the  appointment  of  Mansfield  as 
Chief  Justice  of  the  Court  of  King's  Bench  are  almost  a 
barren  waste  as  far  as  the  history  of  the  development  of 
insurance  law  is  concerned.  The  common  law  judges  did  not 
grow  in  wisdom  or  in  the  favor  of  those  having  insurance 
causes.  The  merchants  and  underwriters  continued  to  sub- 
mit their  disputes  to  arbitrators  and  commissions,  sedulously 
avoiding  the  common  law  courts.  It  is  said  that,  all  told, 
the  reported  insurance  cases  determined  at  law  prior  to  Lord 
Mansfield's  time  did  not  exceed  sixty  in  number,1  nor  among 
these  can  there  be  found  one  that  clearly  establishes  a  great 
principle  or  that  can  be  fairly  considered  a  leading  case. 
So  slight  was  the  grasp  of  the  common  law  judges  of  this 
period  upon  the  nature  and  true  function  of  the  contract  of 
insurance  that  as  late  as  1746  it  was  uncertain  whether  an 
insurable  interest  was  necessary  to  support  a  policy,2  al- 
though the  fundamental  principle  requiring  the  presence  of 
such  an  interest  was  perfectly  well  understood  by  the  Conti- 
nental authorities  of  an  earlier  time.  In  1746,  by  Statute 
19,  Geo.  II,  c.  37,  the  making  of  policies  without  interest 
was  prohibited,  as  was  also  the  making  of  reinsurances,  under 
the  mistaken  impression  that  they  fell  under  condemnation  as 
wager  policies.  During  this  period  the  doctrine  of  conceal- 
ment was  applied  by  the  Court  of  King's  Bench  in  Seaman  v. 
Fonereau^  and  the  peculiar  doctrine  of  warranties  in  insur- 
ance policies  was  foreshadowed,  rather  than  definitely  de- 
clared, in  Jeffery  v.  Legenderf  and  in  Lethulier's  Case.5  Add 
to  these  a  few  somewhat  uncertain  cases  on  the  effect  of  devi- 
ation,6 and  we  have  practically  the  sum  of  the  contributions 

1  Park,  Marine  Ins.  (4th  ed.)  xliii. 

"Compare  Depaba  v.  Ludlow  (1720)  1  Comyns  360,  with  Goddart  v. 
Garrett  (Chancery,  1692)  2  Vern.  269. 

8  (1743)    2  Strange  1183. 

4  (1691)  3  Lev.  320.  5  (1692)  2  Salk.  443. 

'Green  v.  Young  (1702)  2  Salk.  444;  Foster  v.  Wilmer  (1745)  2 
Strange  1249;  Elton  v.  Brogden  (1746)  2  Strange  1264. 


116  V.     COMMERCIAL    LAW 

made  to  insurance  law  by  common  law  judges  prior  to  Mans- 
field. 

Lord  Mansfield  became  Chief  Justice  of  the  Court  of  King's 
Bench  in  1756,  which  may  rightly  be  considered  as  the  date 
of  the  beginning  of  the  development  of  the  modern  law  of 
insurance  as  a  part  of  the  common  law  system.  This  great 
judge,  thanks  to  his  more  liberal  Scottish  training,  was  not 
so  slavishly  attached  to  common  law  precedents  as  to  be  un- 
able to  perceive  the  necessity  of  recognizing  merchants' 
customs  in  determining  rights  under  merchants'  contracts, 
nor  so  bigoted  as  to  be  unwilling  to  seek  light  from  foreign 
sources.  In  insurance  causes,  as  with  causes  involving  other 
branches  of  the  law  merchant,  he  impanelled  juries  of  mer- 
chants and  underwriters,  to  establish  customs  and  usages 
current  among  those  who  made  insurances,  and  diligently 
consulted  the  time-honored  maritime  laws  of  the  Continent, 
and  the  treatises  of  English  and  Continental  writers.1  Thus 
he  not  only  gave  prompt  justice  to  litigants  who  appeared 
before  him,  and  provided  a  fit  tribunal  for  merchants,  but  he 
saw  so  clearly  the  fundamentals  of  the  theory  of  insurance, 
and  understood  so  well  its  practical  applications  to  the  needs 
of  business  and  commerce,  that  the  numerous  doctrines  that 
he  laid  down  have  survived  all  of  the  many  changes  in  com- 
mercial conditions  and  methods  that  have  since  taken  place, 
and  almost  without  exception  they  apply  as  well  to  the  com- 
mercial transactions  of  to-day  as  to  those  of  Mansfield's  own 
time.  When  he  retired  from  the  bench  in  1788,  he  left  a 
complete  system  of  insurance  law,  as  is  so  well  shown  by 
Sir  James  Park,  a  contemporary  of  Mansfield's,  in  his  brilliant 
work  on  marine  insurance.  This  system  has  been  much  ex- 
tended in  modern  times,  but  it  has  been  little  changed,  and 
still  stands  as  a  lasting  monument  to  the  great  judge  whom 
Mr.  Justice  Buller  2  rightly  called  "  the  founder  of  the  com- 
mercial law  of  this  country." 

1Thus,  in  Luke  v.  Lyde  (1759),  2  Burr,  883,  889,  he  cites  the  Rhodhm 
Laws,  The  Consolato  del  Mare,  The  Laws  of  Oleron  and  of  Wisby,  The 
Ordinances  of  Louis  XIV,  and  the  treatise  of  Roccus. 

aln  Lickbarrow  v.  Mason  (178T),  2  T.  R.  73. 


53.    THE  EARLY  HISTORY  OF  THE  ENGLISH 
PATENT    SYSTEM1 

BY  EDWARD  WYNDHAM  HULME  2 

IN  18£7,  when  the  subject  of  patent  law  reform  first  began 
to  claim  the  attention  of  the  English  Legislature,  an 
effort  was  made  by  the  Lower  House  to  obtain  the  data 
requisite  for  an  investigation  of  the  history  of  the  patent 
system  under  the  prerogative  and  at  common  law.  In  this 
year  the  Crown,  in  compliance  with  a  resolution  of  the  House, 
ordered  a  return  to  be  prepared  '  of  the  titles  and  dates  of  all 
special  privileges  and  patents  granted  in  England  previous 
to  March  1,  1623,  and  stating  whether  for  English  or  foreign 
manufactures  and  inventions.'  Unfortunately,  the  resources 
of  the  Keepers  of  the  National  Records  proved  unequal  to  the 
demands  made  upon  them ;  and  as  a  matter  of  fact  the  return 
was  never  presented.  The  resolution,  nevertheless,  deserves 
to  be  rescued  from  oblivion.  For,  while  on  the  one  hand  it 
excludes  as  foreign  to  the  inquiry  an  investigation  of  the 
commercial  privileges  of  the  trading  companies,  the  supposed 
connexion  of  which  with  patents  for  inventions  has  misled  so 
many  writers  upon  Patent  Law,  it  includes  all  grants  made  in 
respect  of  manufactures  or  inventions  irrespective  of  the 
nature  of  the  privileges  conferred  therein.  In  other  words, 
we  are  told  to  look,  not  for  Monopoly  patents,  but  for  grants 

1This  essay  was  first  published  in  four  parts  in  the  Law  Quarterly 
Review,  1896-1902,  vols.  XII,  141-154,  XIII,  312-318,  XV.I,  44-56, 
XVIII,  280-288,  and  has  been  revised  and  condensed  by  the  author  for 
this  Collection. 

'Librarian  of  the  Patent  Office,  London.  Corpus  Christi  College, 
Oxford,  B.  A.,  1880. 

Other  Publications:  Articles  in  Industries  (1893),  Engineering  (1894), 
the  Antiquary  (1894-95),  the  Library  (1898). 


118  V.     COMMERCIAL    LAW 

to  individuals  made  in  furtherance  of  particular  industries. 
With  this  clue  to  guide  us  we  shall  at  once  proceed  to 
inquire,  firstly,  at  what  period  the  Crown  by  means  of  its 
grants  first  actively  interfered  in  the  promotion  of  industry, 
and  secondly,  what  relation  these  grants  may  be  found  to 
bear  to  the  first  recorded  Monopoly  patents  of  invention. 
For  this  purpose  we  may  briefly  summarize  the  conclusions 
which  may  be  obtained  from  a  perusal  of  any  standard  his- 
tory of  industrial  progress  in  this  country. 

During  the  period  of  history  known  as  the  Middle  Ages, 
the  industrial  attainments  of  the  English  were  far  below  the 
level  of  their  continental  rivals,  France,  Germany,  Italy, 
Spain  and  the  Low  Countries.  Moreover,  throughout  Eu- 
rope progress  in  the  manufacturing  arts  is  found  to  be  due, 
not  so  much  to  individual  experimental  effort,  as  to  the  slow 
infiltration  of  improved  processes,  the  source  of  which  is 
ultimately  traceable  to  the  more  advanced  civilization  of  the 
East.  As  late  as  the  sixteenth  century  the  type  of  English 
society  was  mainly  that  of  an  agricultural  and  mining  com- 
munity, exchanging  its  undressed  cloth,  wool,  hides,  tin  and 
lead  for  the  manufactures  of  the  continent  and  the  produce 
of  the  East.  The  rise  of  the  native  cloth  industry  in  the  four- 
teenth century  gave  to  this  country  her  first  considerable 
manufacturing  industry:  and,  inasmuch  as  the  development 
of  the  industry  is  universally  attributed  to  the  fostering  influ- 
ence of  the  Crown,  it  will  be  necessary  to  scrutinize  somewhat 
closely  the  various  grants  by  means  of  which  these  results 
were  obtained.  For  the  facts  here  presented  no  originality 
is  claimed.  Their  connexion,  however,  with  the  history  of 
patent  law  has  never  yet  been  properly  established. 

In  the  letters  of  protection  to  John  Kempe  and  his  Com- 
pany dated  1331  (Pat.  5  Ed.  iii  p.  1,  m.  25),1  will  be  found 
the  earliest  authenticated  instance  of  a  Royal  grant  made 
with  the  avowed  motive  of  instructing  the  English  in  a  new 
industry.  Here  we  have,  not  a  solitary  instance  of  protec- 
tion, but  the  declaration  of  a  distinct  and  comprehensive  pol- 

1This  text  will  be  found  in  Rymer.  A  facsimile  reproduction  forms 
the  frontispiece  to  Prof.  Cunningham's  Alien  Immigrants  in  England. 
1897. 


53.     HULME:    PATENT    SYSTEM  119 

icy  in  favour  of  the  textile  industry ;  for  the  grant  contains 
a  general  promise  of  like  privileges  to  all  foreign  weavers, 
dyers  and  fullers,  on  condition  of  their  settling  in  this  coun- 
try and  teaching  their  arts  to  those  willing  to  be  instructed 
therein.  Nor  is  this  all.  In  1337  these  letters  patent  were 
expressly  confirmed  by  a  statute  framed  for  the  protection 
of  the  new  industry,  cap.  5  of  which  enacts,  that  all  cloth- 
workers  of  strange  lands,  of  whatsoever  country  they  may 
be,  which  will  come  into  England,  Ireland,  Wales,  and  Scot- 
land, and  within  the  King's  power,  shall  come  safely  and 
surely  and  shall  be  in  the  King's  protection  and  safe-conduct 
to  dwell  in  the  same  lands,  choosing  where  they  will ;  and  to 
the  intent  that  the  said  clothworkers  shall  have  the  greater 
will  to  come  and  dwell  here,  Our  Sovereign  Lord  the  King 
will  grant  them  franchises  as  many  and  such  as  may  suffice 
them.1 

As  it  is  with  the  continuity  rather  than  with  the  success 
of  the  new  policy  that  we  have  here  to  deal,  we  shall  briefly 
enumerate  in  their  chronological  order  the  grants  which 
appear  to  have  been  issued  in  furtherance  of  the  above  object. 
In  1336  similar  letters  were  issued  (10  Ed.  Ill,  Dec.  12)  to 
two  Brabant  weavers  to  settle  at  York  in  consideration  of  the 
value  of  industry  to  the  Realm.  In  1368  (42  Ed.  Ill,  p.  1) 
three  clockmakers  of  Delft  were  invited  to  come  over  for  a 
short  period.  In  the  following  reign  we  are  informed 
(Smiles,  Huguenots,  p.  10)  that  the  manufacture  of  silk  and 
linen  was  established  in  London  by  the  king  by  the  introduc- 
tion of  similar  colonies  from  abroad,  but  whether  by  letters 
patent  or  otherwise  has  not  been  ascertained.  The  first  in- 
stance of  a  grant  made  to  the  introducer  of  a  newly-invented 

aln  the  report  of  the  Hist.  MSS.  Comm.  xiv,  pt.  viii.  p.  7,  Lincoln, 
ere  is  an  ordinance  dated  May  1,  1291,  which  at  first  sight  carries  back 
is  policy  of  encouragement  to  a  still  earlier  date.     It  runs  as  follows: 
and  that  men  may  have  the  greater  will  to  labour  in  the  making  of 
loth  in  England,  Ireland,  and  Wales,  We  will  that  all  men  may  know 
hat  We  will  grant  suitable  franchises  to  fullers,  weavers,  and  dyers, 
and  other  clothworkers  who  work  in  this  mystery  so  soon  as  such  fran- 
chises are  asked  of  us.'    The  '  Athenaeum,'  1896,  however,  points  out  from 
internal  evidence  that  the  true  date  of  the  document  is  probably  May  1, 

1326.  See  also  Calendar  of  Patent  Rolls,  1327-30  under  date  May  1, 

1327,  where  it  appears  that  the  first  act  of  Ed.  III.  was  to  cause  a  re- 
newal of  the  '  Ordinance  of  the  late  king.' 


120  V.     COMMERCIAL    LAW 

process  will  be  found  in  letters  patent  dated  1440  (18  H.  6. 
Franc.  18.  m.  27)  to  John  of  Shiedame,  who  with  his  Com- 
pany was  invited  to  introduce  a  method  of  manufacturing 
salt  on  a  scale  hitherto  unattempted  within  the  kingdom. 
Twelve  years  later,  in  1452,  a  grant  was  made  in  favour  of 
three  miners  and  their  Company,  who  were  brought  over  from 
Bohemia  by  the  king  on  the  ground  of  their  possessing 
*  meliorem  scientiam  in  Mineriis  '  (Rymer,  xi.  317). 

These  instances,  although,  probably,  not  exhaustive  of 
the  industrial  grants  of  the  fourteenth  and  fifteenth  centu- 
ries, sufficiently  illustrate  the  well-known  citation  from  the 
Year  Book,  40  Ed.  Ill,  fol.  17,  18,  to  the  effect  that  the 
Crown  has  power  to  grant  many  privileges  for  the  sake  of 
the  public  good,  although  prima  facie  they  appear  to  be 
clearly  against  common  right. 

With  the  alchemical  patents  of  Henry  VI,  wrongly  assigned 
by  Hindmarch  and  subsequent  writers  to  the  reign  of  Edward 
III,  we  must  deal  briefly. 

In  1435-36  two  successive  Commissions  were  appointed  to 
inquire  into  the  feasibility  of  making  the  philosopher's  stone 
for  medicinal  and  other  purposes.  Respecting  these  Com- 
missions we  are  assured  by  Prynne  in  his  Aurum  Reginas 
that  they  proved  '  entirely  abortive  for  aught  that  he  could 
find.'  The  fiction  of  a  monopoly  having  been  intended,  based 
upon  an  obviously  inaccurate  account  in  Moore's  Reports, 
p.  671,  may  be  dismissed  as  the  invention  of  a  later  date. 
Other  so-called  alchemical  patents  resolve  themselves  into 
either  warrants  for  the  arrest  of  the  individuals  concerned, 
or  dispensations  from  the  penal  statute  of  5  Henry  IV,  by 
which  the  practice  of  transmutation  was  made  a  felony.  In 
any  case  the  connexion  of  these  grants  with  the  history  of 
patent  law  must  be  considered  as  exceedingly  remote. 

With  the  accession  of  the  Tudor  dynasty  the  patent  system 
underwent  a  characteristic  change.  In  place  of  the  open 
letters  for  the  furtherance  of  the  national  industry,  we  now 
find  the  Crown  negotiating  for  the  purpose  of  attracting 
skilled  foreigners  into  its  own  service.  Amongst  these  we 
may  instance  the  introduction  of  German  armourers,  Italian 
shipwrights  and  glass-makers,  and  French  iron-founders  and 


53.     HULME:    PATENT    SYSTEM  121 

sail-makers.  In  the  absence  of  any  grants  recorded  in  con- 
nexion with  these  transactions,  it  is  impossible  to  define  the 
precise  relations  existing  between  the  Crown  and  the  immi- 
grant artisan.  The  Italian  glass-makers  introduced  circa 
1550,  i.  e.  under  the  protectorate  of  Somerset,  were  recalled 
by  the  Venetian  State ;  but  the  French  iron-founders  appear 
to  have  successfully  established  in  the  Weald  of  Sussex  the 
art  of  casting  iron  ordnance,  which  shortly  afterwards  super- 
seded the  older  forms  of  bronze  cannon. 

The  first  acts  of  Elizabeth  were  directed  to  the  question 
of  national  defence.  In  1560  the  reformation  of  the  coinage 
was  taken  in  hand,  for  which  purpose  a  body  of  Easterling 
assayers  were  brought  over.  In  the  following  year  the  policy 
of  the  promotion  of  new  industries  under  the  special  protec- 
tion of  the  Crown  was  inaugurated  and  steadfastly  pursued 
to  the  last  few  years  of  the  reign.  As  to  the  legality  of  the 
new  licenses  no  scruples  appear  to  have  been  entertained. 
The  monopolies  were  not  without  foreign  precedents. 
Throughout  Western  Europe  the  new  art  of.  printing  was 
being  controlled  and  regulated  by  special  licenses.  With  this 
preface  we  may  leave  the  following  list  of  grants  to  speak  for 
itself.  Their  history  from  the  political  and  economic  stand- 
points has  recently  formed  the  subject  of  a  monograph  by 
Dr.  Hyde  Price  (English  Patents  of  Monopoly.  Boston, 
1906)  to  which  frequent  reference  will  be  made.  The  list,  it 
should  be  stated,  has  been  prepared  from  the  Calendars  of  the 
Patent  Rolls  of  Elizabeth.  Its  claim  to  completeness  for  this 
reign,  therefore,  rests  mainly  upon  the  sufficiency  of  these 
Calendars. 

(Mary.    Monopoly  Patent) 

No.  I.  1554.  May  29.  License  to  Burchart  Cranick 
(See  Grant  No.  vii  infra)  to  mine,  break  open 
ground,  melt,  divide  (i.  e.  separate  metals)  and 
search  for  all  manner  of  metals  according  to  an 
indenture  made  the  18th  May  of  the  same  year. 
For  20  years. 

The  discovery  of  this  grant  is  due  to  Mr.  J.  W.  Gordon,  author 
of  Monopolies  by  Patents  and  other  works  on  the  history  of 


122  V.     COMMERCIAL    LAW 

English  Patent  Law.     The  above  grant  contains  a  prohibition 
against  the  use  of  Cranick's  methods  for  the  space  of  six  years. 

(Elisabeth.    Monopoly  Patents) 

No.  I.  1561.  Jan.  3.  A  ly cense  to  Stephen  Groyett  and 
Anthony  Le  Leuryer  to  make  white  sope  [for  10 
years]. 

The  best  English  soap  of  the  period  was  a  soft  potash  Bristol 
soap,  '  very  sweet  and  good/  but  unsuitable  for  fine  laundry 
work,  for  which  the  hard  Spanish  soda  soap  of  Castile  was  pre- 
ferred. The  grant  stipulates  that  two  at  the  least  of  the  servants 
of  the  patentees  shall  be  of  native  birth,  and  that  the  soap,  which 
is  to  be  of  the  white  hard  variety,  shall  be  as  good  and  fine  as  is 
made  in  the  Sope  house  of  Triana  or  Syvile.  The  patentees  are 
bound  to  submit  their  wares  for  the  inspection  of  the  municipal 
authorities,  and  on  proof  of  defective  manufacture  the  privilege 
is  void.  The  grant  appeared  in  full  in  '  Engineering,'  June  22, 
1894,  with  a  brief  outline  of  the  origin  of  patent  law  by  the 
present  writer. 

No.  II.  1561.  Aug.  8.  License  to  Philip  Cockeram  and 
John  Barnes  to  make  saltpetre  [for  10  years]. 

At  the  date  of  the  grant  saltpetre  was  not  manufactured  within 
this  country;  most  of  the  imported  article  arriving  via  Antwerp, 
a  port  controlled  by  the  Catholic  King  of  Spain.  The  Queen 
therefore  bargained  with  Gerard  Honricke,  '  an  almayne  Cap- 
tain,' to  come  over  and  teach  her  subj  ects  '  the  true  and  perfect 
art  of  making  saltpetre  '  as  good  as  that  made  '  beyond  the  seas/ 
stipulating,  however,  that  the  secrets  of  the  manufacture  should 
be  reduced  to  writing  before  the  promised  reward  of  £300  should 
be  paid.  On  the  arrival  of  Honricke  the  Queen  resigned  her  bar- 
gain (Pat.  3  Eliz.  p.  6)  into  the  hands  of  the  above  patentees, 
who  were  both  London  tradesmen.  The  specification  will  be 
found  in  full  in  *  Engineering/  June  15,  18Q4. 

In  case  the  new  invention  (sic)  be  not  proved  to  be  of  value 
within  a  year,  the  making  of  saltpetre  to  be  thrown  open  as  at 
present. 

No.  III.  1562.  May  26.  Privilege  to  George  Cobham, 
alias  Broke,  for  a  dredging  machine  [for  10 
years]. 

The  petition  of  G.  Cobham,  Tomazo  Chanata,  stranger,  and 
their  Company  endorsed  with  the  erroneous  date  1550,  is  to  be 
found  in  the  S.  P.  Dom.  Eliz.  vol.  i.  No.  56. 


53.     HULME:    PATENT    SYSTEM  123 

The  patentee  represents  that  '  by  diligent  travel '  he  had  dis- 
covered a  machine  to  scour  the  entrances  to  harbours,  &c.,  to  a 
depth  of  sixteen  feet.  The  patent  is  for  the  importation  of  a 
sufficient  number  of  these  machines.  The  rights  of  scouring 
channels  by  the  older  methods  are  reserved,  and  the  Queen  ex- 
presses a  hope  that  her  favourable  treatment  of  the  patentee 
4  will  give  courage  to  others  to  study  and  seke  for  the  knowledge 
of  like  good  engines  and  devyses.' 


No.  IV.  1562.  Dec.  81.  License  to  Wm.  Kendall  to 
make  Alum  in  Devon,  Cornwall,  &c.  [for  20 
years]. 

In  the  recital  of  the  grant  Kendall  represents  that  he  had 
discovered  ores  of  alum  in  abundance  with  a  practical  method  of 
its  extraction.  The  manufacture  was  started  in  Devonshire,  but 
failed.  See  also  1564,  July  3,  Alum  patent  of  Cornelius  De 
Vos. 

No.  V.  1562.  Dec.  81.  Patent  to  John  Medley  for  an 
instrument  for  the  drayninge  of  water  [for  20 
years]. 

The  recital  states  that  mines  of  tin,  lead,  coal,  &c.,  in  Devon 
as  elsewhere,  were  drowned  and  altogether  unoccupied,  '  owing 
the  great  habundance  of  water.'  It  is  not  clear  that  Medley  lays 
claim  to  the  invention  of  the  present  device,  although  the  grant 
covers  all  subsequent  improvements.  The  rights  of  users  of  old 
machines  are  reserved,  and  clauses  are  inserted  regulating  the 
compensation  to  be  paid  for  entering  upon  abandoned  properties. 
In  case  of  disputes  arising,  the  quarrel  is  to  be  referred  to  the 
Privy  Council.  The  source  of  inspiration  of  this  and  the  numer- 
ous subsequent  patents  for  mine  drainage  and  water  raising  will 
be  found  in  the  illustrated  work  of  Agricola  published  in  1559. 


No.  VI.  1563.  Feb.  26.  A  license  to  George  Gylpin  and 
Peter  Stoughberken  to  make  ovens  and  furnaces 
[for  10  years]. 

In  the  S.  P.  Dom.  1565  there  is  a  certificate  from  some  London 
brewers,  who  testify  to  the  economy  of  fuel  effected  by  the  fur- 
naces of  a  German,  Sebastian  Brydigonne,  who  may  have  been 
connected  with  the  above  patentees.  The  grant  refers  to  the 
growing  scarcity  of  wood  fuel,  owing  to  the  large  consumption 


124  V.     COMMERCIAL    LAW 

in  the  brewing  and  baking  trades.  The  grant  is  void  in  case  the 
patentees  fail  to  come  over  and  put  the  grant  into  practice  within 
two  months,  or  prove  extortionate  in  their  charges. 

No.  VII.  1563.  June  22.  A  license  to  Burchsard  Cran- 
ick  to  make  engines  for  the  draining  of  waters 
[20  years]. 

This  grant  is  similar  to  that  of  Medley's,  but  gives  some  addi- 
tional powers  of  entering  upon  old  and  abandoned  mines  under 
proper  restrictions.  The  engine  is  stated  to  have  been  lately 
invented,  lerned  and  found  out  by  Cranick,  and  to  be  unlike 
anything  devised  or  used  within  the  realm.  Three  years  are  al- 
lowed for  the  patentee  to  perfect  and  demonstrate  the  utility  of 
his  engines.  Disputes  are  to  be  referred  to  the  Warden  of  the 
Stannaries  and  three  Justices  of  the  Peace. 


No.  VIII.      1564.     July  3.     License  to  Cornelius  de  Vos  to 
make  Alum  and  Copperas  [for  21  years]. 

De  Vos  obtained  this  grant  on  the  strength  of  the  discovery  of 
ores  of  alum  and  copperas  (sulphate  of  iron)  in  the  Isle  of 
Wight  (Alum  Bay).  His  rights  were  shortly  afterwards  assigned 
to  Lord  Mount  joy,  who  in  1566  obtained  parliamentary  con- 
firmation of  the  grant.  Both  the  Queen  and  Cecil  were  originally 
financially  interested  in  the  success  of  the  experiment.  In  1571 
Bristol  merchants  complain  of  the  decay  of  their  trade  owing  to 
the  fact  that  iron  and  alum,  which  had  hitherto  come  from  Spain, 
were  now  made  better  and  cheaper  in  this  country.  See  also 
Stow's  Annals,  1631,  pp.  897,  898;  Geological  Survey,  Memoirs, 
Jurassic  Rocks,  i.  452-454.  Hyde  Price,  p.  82.  The  grant  confers 
the  right  to  take  up  workmen  at  reasonable  wages,  together  with 
all  materials  requisite  for  the  manufacture. 


Nos.  IX,  X.  1564.  Oct.  10.  Commission  to  Daniel 
Houghstetter  and  Thomas  Thurland  for 
mining  in  eight  English  Counties. 
1565.  Aug.  10.  Special  license  to  the  same 
concerning  the  provision  for  the  minerals 
and  mines  of  gold,  silver,  &c. 

The  validity  of  these  grants  was  challenged  by  the  Earl  of 
Northumberland   on  the  ground  that  the  work  was  within  the 


53.     HULME:    PATENT   SYSTEM  125 

Royalties  granted  to  his  family  in  a  former  reign.  The  case  was 
decided  in  favour  of  the  Queen,  on  the  ground  that  the  neglect 
of  the  Earl  and  his  predecessors  to  work  the  minerals  during 
seventy  years  '  had  made  that  questionable  which  for  ages  was 
out  of  question'  (Pettus,  Fodinae  Regales).  On  May  28,  1568, 
the  Company  was  incorporated  by  Charter  as  the  Society  of  the 
Mines  Royal,  which  existed  down  to  the  eighteenth  century. 
See  also  Hyde  Price,  pp.  49-55  and  Grant-Francis,  Copper- 
smelting. 


No.  XI.  1565.  Jan.  29.  License  to  Armigil  Wade  and 
Wm.  Herlle  for  the  manufacture  of  sulphur 
and  oil  [for  30  years]  (Latin). 

The  full  text  of  the  grant  will  be  found  in  Rymer.  The  sul- 
phur was  required  for  making  gunpowder,  and  the  discovery  may 
be  attributed  to  the  labours  of  John  Mangleman,  a  German,  who 
was  authorized  to  search  for  earth  proper  for  making  brimstone 
(Lansd.  MSS.).  The  second  part  of  the  invention  related  to  the 
extraction  of  oil  from  seeds  for  finishing  cloth.  The  proper 
machinery  for  extracting  oil  from  rape  and  other  seeds  does  not 
seem  to  have  been  known  at  the  period.  The  grant  was  subse- 
quently reissued  to  Wade  and  another  for  a  further  term  of 
thirty  years.  Cf.  No.  XXXIV,  infra. 


No.  XII.  1565.  April  20.  License  to  Roger  Heuxtenbury 
and  Bartholomew  Verberick  for  Spanish  or 
beyond  sea  leather  [for  7  years]. 

The  process  relates,  in  all  probability,  to  sumach  tanning 
which  produces  a  white  leather  suitable  for  dyeing  in  light 
shades.  Shoes  of  Spanish  leather,  i.  e.  yellow  leather,  appear  to 
have  been  preferred  '  to  those  which  shine  with  blacking ' 
(Howell,  Letters,  I.  i.  39).  The  grant  dispenses  with  the  pro- 
visions of  an  Act  forbidding  the  export  of  leather.  On  the  other 
hand,  it  insists  on  the  employment  and  instruction  of  one  English 
apprentice  for  every  foreigner  employed,  and  subjects  the  indus- 
try to  the  inspection  of  the  Wardens  of  the  Company  of  the 
Leather  Sellers,  who  are  responsible  for  '  the  skins  being  well 
and  sufficientlie  wrought/  This  grant  must  not  be  confused  with 
a  subsequent  license  to  Andreas  de  Loo  to  export  pelts  which 
gave  great  offence  to  the  trade.  For  evidence  as  to  the  use  of 
sumach  at  this  period  see  Library  Association,  Leather  for  Li- 
braries,  pp.  7-8. 


126  V.     COMMERCIAL    LAW 

Nos.  XIII,  XIV.  1565.  Sept.  17.  Two  licenses  to  Wm. 
Humfry  and  Christopher  Shutz  to  dig 
(1)  for  the  Lapis  Calaminaris,  the 
manufacture  of  brass  and  iron  wire 
and  battery  wares,  (2)  for  tin,  lead, 
and  other  ores. 

These  grants  covered  geographically  those  parts  of  England 
not  included  in  Houghstetter's  patents  and  the  Alum  patent  of 
De  Vos.  Calamine  or  zinc  carbonate  is  an  essential  in  the  manu- 
facture of  latten  or  brass,  which  it  was  proposed  to  use  in  cast- 
ing ordnance  (S.  P.  Dom.  Eliz.  vol.  8,  No.  14).  The  mineral 
was  discovered  in  Somersetshire  in  1566,  and  the  first  true  brass 
made  by  the  new  process  was  exhibited  in  1568.  The  patentees 
also  erected  at  Tintern  the  first  mill  for  drawing  wire  for  use 
in  wool-carding.  In  1568  the  Company  was  incorporated  by 
Charter  as  the  '  Company  of  the  Mineral  and  Battery  Works/ 
and  remained  under  practically  the  same  management  as  that 
of  the  Society  of  the  Mines  Royal  (Stringer,  Opera  Miner  alia 
Explicata).  In  1574,  and  again  in  1581,  the  assignees  of  the 
patent  obtained  an  injunction  against  several  owners  of  lead 
mines  in  Derbyshire  for  using  certain  methods  of  roasting  lead 
ores  in  a  furnace  worked  by  the  foot  blast  and  other  instruments 
invented  by  Humphrey  after  the  date  of  his  patent.  The  Court 
of  Exchequer  ordered  models  to  be  made,  and  after  repeated 
adj  ournments  a  Commission  was  appointed  to  investigate  '  the 
using  of  furnaces  and  syves  for  the  getting,  cleansing,  and  melt- 
ing of  leade  Ower  at  Mendype,  and  the  usage  and  manner  of  the 
syve '  {Exchequer  Decrees  and  Orders).  The  depositions  in 
this  case  are  still  preserved,  but  it  is  impossible  to  trace  the  his- 
tory of  the  case  to  its  completion.  Coke  informs  us  that  as  re- 
gards the  use  of  the  sieve,  the  patent  was  not  upheld  on  the 
ground  of  prior  user  at  Mendip.  It  is  a  peculiarity  of  the  grant 
that  it  covered  all  subsequent  inventions  of  the  patentees  in  this 
particular  branch  of  metallurgy.  The  hearth  was  invented  after 
the  date  of  the  patent,  and  one  of  the  questions  to  be  decided  was 
whether  a  subsequent  invention  could  be  covered  by  letters  patent 
or  no.  See  also  Hyde  Price,  pp.  55-60. 


No.  XV.     1565.     July  31.     License  to  Francis  Berty  to  put 
in  practice  the  trade  of  making  white  salt. 

The  patent  was  surrendered  and  reissued  in  the  following  year. 


53.     HULME:    PATENT    SYSTEM  127 

No.  XVI.  1565.  Sept.  7.  License  to  James  Acontius  for 
the  manufacture  of  machines  for  grinding,  &c. 
[for  20  years]  (Latin). 

Acontius,  an  Italian  engineer,  had  taken  out  letters  of  natural- 
ization and  was  in  receipt  of  a  small  Crown  pension.  The  un- 
dated petition  is  to  be  found  in  S.  P.  Dom.  Elis.  1559.  The 
real  date,  no  doubt,  is  1565. 

No.  XVII.  1566.  Jan.  23.  License  to  Francis  Berty  for 
the  making  of  salt. 

Berty  was  a  native  of  Antwerp,  and  probably  introduced  the 
Dutch  mode  of  making  salt  for  fish-curing.  The  salt  was  ex- 
tracted by  boiling  in  copper  pans.  Plans  of  the  furnaces  will  be 
found  in  S.  P.  Dom.  Elis.  1566.  The  later  salt  patents  of  the 
reign  gave  rise  to  great  local  discontent,  owing  to  the  oppression 
of  the  patentees,  who  claimed  the  right  to  control  the  price  of 
salt  within  certain  areas. 

No.  XVIII.  1567.  Aug.  26.  A  special  license  to  Peter 
Anthony  van  Ghemen  [for  21  years]  to  cut 
iron,  save  fuel  and  extract  oil. 

In  the  Lansd.  MSS.  there  is  a  declaration  of  the  inventions  of 
the  above  individual  and  his  Company.  They  consisted  of  a 
process  of  tempering  iron  so  that  it  might  be  cut  into  bars  for 
various  purposes,  and  of  special  mills  for  corn  and  for  extracting 
oil  from  rape-seed,  which  for  want  of  proper  appliances  was 
sent  out  of  the  kingdom  to  be  extracted. 

No.  XIX.  1567.  Sept.  8.  License  to  Anthony  Becku  and 
John  Carre  to  make  Normandy  and  Lorraine 
glass  [for  21  years]. 

Strype,  Eccles.  Mem.  records  an  attempt  to  introduce  Nor- 
mandy or  '  Crown '  glass  in  1552.  In  1557  English  glassmakers 
were  said  to  be  '  scant  in  the  land,'  the  seat  of  the  manufacture, 
which  was  confined  to  small  green  glass  ware,  being  at  Chidding- 
fold.  This  patent  may  be  said  to  have  laid  the  foundation  of 
modern  English  glass-making;  see  Antiquary,  Nov.  1894  — 
May,  1895  and  Hyde  Price,  pp.  67,  etc.  It  should  be  noted  that 
the  Crown  had  twice  failed  to  manufacture  glass  on  its  own  ac- 
count. The  patent  insists  on  the  instruction  of  the  English  as 
a  condition  of  the  validity  of  the  grant.  The  attempt  to  manu- 


128  V.     COMMERCIAL    LAW 

facture  '  Crown  '  glass  appears  to  have  been  unsuccessful  (Lansd. 
MSS.  76)  and  to  have  been  abandoned  until  one  Henry  Rich- 
ards brought  the  art  to  England  in  1679  (Petition  Entry  Books, 
2,  359). 

No.  XX.  1568.  Oct.  14.  Grant  to  Peter  Backe  to  collect 
madder  in  Ireland  and  dye  skins  of  animals 
[for  21  years]. 

Backe  was  a  native  of  Brabant  —  a  province  noted  for  its 
dyers.  The  English  dyers,  on  the  other  hand,  bore  an  evil  repu- 
tation. '  No  man  almost  wyll  meddle  with  any  colours  of  cloth 
touching  wodde  and  mader,  unlesse  it  beare  the  name  of  French 
and  Flaunders  dyes,  for  reason  of  the  deceits  practised  by  the 
English  and  the  ignorance  of  the  principles  of  their  craft ' 
(Camden  Miscellany).  The  grant  covers  all  parts  of  Ireland, 
with  special  reference  to  specified  counties.  Infringement  is 
punishable  by  one  year's  imprisonment.  Probably  the  first  Irish 
monopoly  grant. 

No.  XXI.  1568.  Nov.  10.  License  to  Peter  de  la  Croce 
(De  la  Croix)  to  make  Cendre  de  Namour 
[for  7  years]. 

A  patent  for  dyeing  and  dressing  cloth  after  the  manner  of 
Flanders.  English  cloth  was  still  exported  in  the  white,  un- 
dressed condition  to  be  finished  abroad.  According  to  the  *  Re- 
quest of  a  true-hearted  Englishman/  dated  1553  (Camden  Mis- 
cellany), this  was  due  to  '  our  beastlie  blindness  and  lacke  of 
studyous  desire  to  do  things  perfectly  and  well/  But  probably 
the  trade  was  hampered  by  the  absence  of  the  subsidiary  indus- 
tries of  oil,  alum,  &c. 

No.  XXII.  1569.  Apr.  20.  A  license  to  Dan.  Hough- 
stetter  to  use  the  arte  of  myninge  [for  21 
yeares]. 

[See  also  patent  dated  Oct.  1564.]  The  grant  is  for  setting 
up  and  using  engines  for  mine  drainage. 

No.  XXIII.  1569.  May  26.  License  to  John  Hastinges 
to  make  clothes  called  Frestadowes  [for  21 
years]. 

Frisadoes  may  be  regarded  as  a  variety  of  '  broad  bayes/  but 
of  a  somewhat  lighter  character,  and  dyed  and  finished  for  the 


58.     HULME:    PATENT    SYSTEM  129 

retail  trade.  The  patent  therefore  was  essentially  for  dyeing 
and  finishing  cloth.  Hastings'  suit  was  supported  by  the  Dyers' 
Company,  who  reported  that  if  English  cloth  were  dyed  within 
the  country  the  Queen  would  gain  £10,000  annually  by  the  in- 
creased custom.  The  manufacture  was  established  at  Christ- 
church,  Hampshire,  but  Hastings  seems  to  have  used  his  grant 
vexatiously  by  wantonly  molesting  the  Essex  weavers  on  the 
ground  that  the  manufacture  of  baize  came  within  the  four  cor- 
ners of  the  patent.  The  matter  was  referred  by  the  clothiers  of 
Coggeshall  to  the  Exchequer,  when  they  claimed  to  have  gained 
the  day  (S.  P.  Dom.  Eliz.  vol.  106,  No.  47,  and  Noy,  183).  Sub- 
sequently an  agent  of  Hastings  was  brought  before  the  Lord 
Mayor's  Court  for  trespass,  and  was  fined  <£9  for  molesting  a 
weaver  within  the  jurisdiction  of  the  city  (S.  P.  Dom.  Eliz.  vol. 
173,  No.  28).  For  text  of  the  grant  see  Edmunds,  Law  of 
Patents,  2nd  ed.  p.  883. 

No.  XXIV.  1571.  July  5.  Grant  to  Sir  Thos.  Goldinge 
for  an  engine  for  land  drainage  and  water 
supply  [for  20  years]. 

The  grant  recites  the  condition  of  the  lowlands  and  the  need  of 
a  proper  system  of  water  supply  for  municipal  and  industrial 
purposes.  The  engines,  once  erected,  will  continue  working  with- 
out men's  labour.  The  grant  is  void  if  the  engine  be  not  erected 
within  two  years  or  fails  to  work  efficiently  as  set  forth.  The 
petition  appears  in  S.  P.  Dom.  vol.  127,  under  the  incorrect  date 
1578. 

No.  XXV.  1571.  July  30.  Grant  to  Rd.  Mathewe  to 
make  '  Turkye  haftes '  for  knives,  &c.  [for 
6  years]. 

The  grantee  obtained  his  information  by  residence  abroad. 
The  patent  was  contested  successfully  by  the  London  cutlers 
(Matthey's  case),  apparently  on  the  ground  of  '  general  incon- 
venience '  of  patents  of  improvements  in  an  existing  trade.  The 
text  and  history  of  the  grant  will  be  found  in  Edmunds,  2nd  ed», 
p.  885. 

No.  XXVI.  1571.  Sept.  1.  Grant  to  Rd.  Dyer  to  make 
earthen  pots  to  hold  fire  for  seething  meat 
[for  7  years]. 

According  to  Howes  the  grantee  learned  the  art  of  making 
'  earthen  furnaces,  firepots,  and  ovens  transportable '  when  a 


130  F.     COMMERCIAL    LAW 

prisoner  of  the  Spaniards  (Portuguese?).  The  grant  covers 
London  and  a  three-mile  radius.  The  industry  was  carried  on 
'  at  London  without  Moorgate,'  and  the  patent  was  extended  for 
seven  years  on  January  28,  1579- 

No.  XXVII.  1573.  June  13.  Grant  to  John  Payne  for 
mills  for  grinding  corn  [for  21  years]. 

The  grant  is  for  modified  forms  of  combined  hand  and  tread- 
mills, examples  of  which  had  already  been  erected  at  Glastonbury. 
The  petition  addressed  to  Burghley  with  '  a  plat  of  my  worke, 
the  fyrst  I  ever  made/  is  preserved  in  the  Lansd.  MSS.  Prior 
rights  of  millowners  reserved.  This  is  undoubtedly  a  native 
invention  of  considerable  merit.  As  in  some  other  cases,  protec- 
tion is  sought  in  view  of  threatened  unauthorized  imitation  of  the 
invention. 

No.  XXVIII.  1573.  July  8.  Grant  to  John  Synertson  to 
put  in  practice  an  instrument  for  land 
drainage,  and  for  the  stopping  of  breaches 
in  dams  [for  10  years]. 

The  grantee  is  described  as  of  Amsterdam,  stranger.  Prior 
rights  are  reserved,  and  a  term  of  two  years  assigned  for  intro- 
ducing the  industry. 

No.  XXIX.  1573.  Oct.  28.  Grant  to  Rd.  Candish  for  an 
engine  for  draining  coal  and  iron  mines 
[for  20  years]. 

The  grant  covers  all  engines  invented  or  to  be  invented  by  the 
grantee  within  this  term,  and  extends  to  eight  counties.  Prior 
rights  are  reserved,  but  no  term  is  fixed  for  working,  owing 
probably  to  the  invention  being  in  the  experimental  stage. 

No.  XXX.  1574.  April  3.  License  to  John  Collyns  to 
make  *  brode  clothes  called  Mildernix  and 
Polledavies '  [for  21  years]. 

The  subject  of  the  grant  is  the  manufacture  of  sailcloths, 
hitherto  brought  from  France.  The  grant  recites  that  the  art 
had  been  introduced  and  apprentices  educated  therein,  and  pro- 
ceeds to  confine  the  trade  to  Ipswich  and  Woodbridge  under  the 
supervision  of  the  patentee.  On  February  5,  1590,  the  grant  was 


53.     HULME:    PATENT    SYSTEM  131 

reissued  to  John  and  Rd.  Collyns  for  twenty-one  years.  Cf.  also 
Statute  1  Jac.  I,  cap.  24,  where  the  above  statements  are  con- 
firmed. 


No.  XXXI.  1574.  Aug.  27.  Grant  to  Jeremy  Nenner 
and  George  Zolcher  for  a  method  of  spar- 
ing fuel  [for  7  years]  (Latin). 

The  grantees  are  bound  to  erect  within  one  year  a  trial  installa- 
tion and  to  prove  its  efficacy.  The  invention  appears  to  relate 
to  a  method  of  domestic  heating  by  a  system  of  flues  connected 
with  a  central  furnace,  and  to  have  been  adopted  in  practice  by 
brewers  and  others  (Acts  of  the  Privy  Council,  April  27,  1578). 

No.  XXXII.  1574.  Dec.  13.  Grant  to  James  Verselyn  for 
making  drinking  glasses  [for  21  years]. 

The  grant  is  made  on  the  strength  of  works  already  erected 
at  Crutched  Friars,  and  aimed  at  superseding  the  trade  in  Italian 
glasses.  The  patentee  undertakes  to  teach  the  art  to  natives,  the 
Crown  laying  stress  upon  the  fact  that  "  great  sums  of  money 
have  gone  forth  of  our  Realms  for  that  manner  of  ware."  Im- 
portation of  foreign  glass  is  prohibited,  and  the  relations  between 
the  retail  trade  and  the  grantee  regulated.  In  1592  Verselyn 
surrendered  the  grant  in  favour  of  Sir  Jerome  Bowes,  to  whom 
a  patent  of  twelve  years  was  issued.  Under  this  grant  a  rent  of 
100  marks  is  reserved  to  the  Crown.  For  the  further  history 
and  text  of  the  grant  cf.  Antiquary,  March,  1895,  and  Hyde 
Price,  pp.  69,  etc. 


No.  XXXIII.  1575.  Feb.  14.  Grant  to  Sir  Thos.  Smythe, 
the  Earl  of  Leicester,  Lord  Burghley,  and 
others  of  the  '  Society  of  the  New  Art,' 
and  to  their  successors. 

Strype's  Life  of  Smythe  contains  an  account  of  this  extraor- 
dinary undertaking,  which  was  for  the  transmutation  of  iron  into 
copper,  and  of  lead  and  antimony  into  quicksilver.  After  several 
failures  at  Winchelsea,  further  attempts  were  made  at  Anglesea, 
where  possibly  some  success  was  met  with  by  the  deposition  of 
copper  on  iron  rods  laid  in  the  copper-bearing  waters  of  the  dis- 
trict. The  grant,  or  charter  of  incorporation,  which  is  based  on 
the  invention  of  one  Wm.  Medley,  illustrates  the  state  of  the 
native  metallurgical  science  at  the  period. 


132  V.     COMMERCIAL    LAW 

No.  XXXIV.     1577.     June  8.      Grant  to  Wm.  Wade  and 
Henry    Mekyns,    alias    Pope,    for    making 
sulphur,    brimstone,     and    oils     [for    30 
years]. 

A  reissue  of  grant  XI.  Wm.  Wade  succeeds  to  the  rights  of 
the  late  Armigil  Wade  and  introduces  Mekyns,  a  London  jewel- 
ler, as  a  capitalist  prepared  to  spend  large  sums  in  extending  the 
industries.  By  this  grant  it  is  proposed  to  substitute  the  use  of 
vegetable  oils  extracted  by  the  patentees  for  train  or  whale  oil 
in  soap-making  and  dressing  cloth.  The  use  of  fish  oil  in  the 
soap  manufacture  was  prohibited  in  the  following  year  (Acts 
of  the  Privy  Council,  1578).  There  is  a  proviso  that  the  quan- 
tities of  rape  and  other  oils  made  under  the  grant  shall  not  be 
below  that  of  the  train  oil  entered  in  the  London  Customs'  books 
during  the  last  three  years.  With  regard  to  the  extraction  of 
sulphur  from  mineral  sulphides  the  Crown  secures  a  rebate  of 
one-twelfth  below  market  prices.  Note  generally  that  this  and 
other  patents  of  reissue  are  open  to  objection  on  the  ground  of 
the  '  unreasonable  '  extension  of  their  term  and  the  undue  en- 
largement of  powers  conveyed  in  the  original  grant. 

No.  XXXV.     1578.     Jan.  24.     Grant  to  Peter  Morris  for 
engines  for  water-raising  [for  21  years]. 

The  text  and  history  of  this  important  grant  will  be  found  in 
the  Antiquary,  Aug. — Sept.  1895.  The  patentee  was  of  Dutch  ex- 
traction. The  grant  reserves  prior  rights  and  fixes  three  years  for 
the  introduction  of  the  invention,  which  comprised  the  first  appli- 
cation of  the  force-pump  to  water-raising  in  this  country,  and  led 
almost  immediately  to  the  introduction  of  the  manual  fire  engine. 
On  the  continent  the  application  of  the  force-pump  was  well 
known  at  this  period. 

No.  XXXVI.     1582.     June  26.     Grant  to  Rd.  Spence  to 
make  white  salt  [for  20  years]. 

The  patentee  undertakes  to  introduce  the  industry  and  to 
supply  a  better  salt  at  cheaper  rates.  Two  years  are  fixed  for 
this  purpose.  A  rent  of  £10  is  reserved  to  the  Crown. 

No.  XXXVII.  1582.  Sept.  22.  Grant  to  Wm.  Hare- 
browne  and  his  son  to  make  salt  upon 
salt  at  Yarmouth  [for  21  years]. 


53.     HULME:    PATENT    SYSTEM  133 

The  process  consists  of  blending  white  Spanish  salt  with  sea 
salt,  and  .the  product  is  applicable  to  fish-curing.  The  grantees 
were  recommended  by  the  Bailiffs  and  inhabitants  of  Yarmouth. 
The  grant  is  made  in  part  '  for  the  relief  of  the  decayed  state ' 
of  the  Harebrownes'  fortunes  occasioned  by  losses  at  sea,  and  is 
revocable  at  six  months'  notice  if  found  inconvenient  to  the  town 
or  commonweal.  Importation  of  foreign  white  salt  to  Yarmouth 
forbidden. 

No.  XXXVIII.  1583.  April  10.  Grant  to  Geo.  Langdale 
to  make  sackbuts  and  trumpets  [for  20 
years]. 

The  patentee  is  described  as  '  one  of  our  Trumpeters/  The 
grant  covers  all  future  improvements,  regulates  prices,  and  re- 
serves the  right  of  one  Peter  Grinn,  '  who  has  heretofore  mended 
trumpets/  The  grant  extends  to  London  and  a  seven-mile  radius. 

No.  XXXIX.    1584.    Feb.  28.     Grant  to  James  Humfry  to 
make  train  oil  [for  7  years]. 

The  grant  recites  that  the  patentee,  a  citizen  of  London,  had 
for  over  twelve  years  practised  and  devised  to  make  very  good 
train  oil  from  the  livers  of  fishes  imported  from  the  north  seas, 
and  had  erected  houses  and  furnaces  for  the  purpose.  The  uses 
of  the  oil  are  stated,  and  a  rent  of  20*.  reserved  to  the  Crown. 
The  grant  was  reissued  for  ten  years  on  May  1,  1591,  to  Richard 
Matthews,  Yeoman  of  the  Pantry;  and  again  to  his  widow  for 
twenty-one  years.  There  can  be  no  doubt  as  to  the  irregularity 
of  these  reissues,  the  first  of  which  was  opposed  by  the  shoe- 
makers and  others  of  Scarborough.  The  industry  existed  for 
many  years  at  Southwold. 

No.  XL.  1585.  Sept.  1.  Grant  to  Thos.  Wilkes,  Clerk  of 
the  Privy  Council,  to  make  white  salt  [for  21 
years]. 

Under  the  original  grant  the  industry  is  confined  to  Lynn  Regis 
and  Boston.  A  rent  of  £6  6*.  8d.  is  reserved  and  immediate 
prosecution  of  the  industry  insisted  upon.  The  patent  was  ex- 
tended on  Feb.  20,  1586,  to  Kingston-upon-Hull.  On  Aug.  31, 
1599,  the  grant  was  surrendered  in  favour  of  John  Smithe  for 
the  remainder  of  the  term,  and  a  new  grant  was  issued  in  con- 
sideration of  the  payment  by  the  latter  of  two  sums  of  £4,750 
and  £2,250,  apparently  due  to  the  Crown  by  one  Robert  Bowes, 
of  Berwick,  deceased.  In  defiance  of  the  terms  of  the  grant, 


134  V.     COMMERCIAL    LAW 

which  regulated  prices  by  those  of  London  (with  a  maximum 
price  of  20d.  a  bushel),  Smithe  raised  his  prices  to  14*.  and  15*., 
and  was  thereupon  committed  by  the  Lord  President,  and  the 
old  prices  restored.  The  salt  was  manufactured  under  a  sub- 
contract by  Sir  George  Bruce,  a  colliery  owner  at  Culross,  who 
subsequently  petitioned  for  a  renewal  of  the  license  in  1611, 
offering  to  reduce  the  price  of  salt  to  l6d.,  or  2d.  less  than  the 
London  prices,  and  stating  that  he  employed  over  1,000  workmen. 

No.  XLI.     1586.     March  11.     Grant  to  Francis  Dal  Arme 

(alien),  and  Robert  Clarke,  to  work  out  oil 

of  woollen  cloth,  with  consent  of  the  owners  — 

*  the  same  oil  to  have  for  their  labour '  [for 

21  years]. 

The  grant  insists  on  the  instruction  of  any  member  of  the 
public  for  a  reasonable  recompense,  of  which  one-tenth  is  reserved 
to  the  Crown.  Trial  of  the  invention  is  to  be  made  before  the 
Privy  Council,  and  the  grant  is  void  if  the  cloth  is  injured  in  the 
process  of  calendering. 

No.  XLIL  1587.  Dec.  30.  Grant  to  John  Purchise,  «  our 
subject,'  to  make  armour  and  harness  for 
man  and  horse  [for  7  years]. 

The  subject  of  the  grant  is  a  light  bullet-proof  fabric  without 
any  metal  '  mingled  or  wrought  in  the  same/  The  trademark 
is  to  be  a  half-moon,  suggestive,  as  in  Mathewe's  patent,  of  an 
Eastern  origin.  Probably  a  revival  of  the  Saracenic  defensive 
felt  armour. 


No.  XLIII.  1588.  April  15.  Grant  to  Rd.  Young  to  im- 
port, make,  and  sell  *  le  starche '  [for  7 
years]. 

The  grant  was  reissued  to  Sir  John  Pakington  for  eight  years 
on  July  6,  1594,  and  again  to  the  same  individual  on  May  20, 
15Q8.  The  consideration  stated  is  the  annual  rent  of  £40,  but 
the  real  consideration  of  the  grant  is  the  suppression  of  the 
manufacture  of  starch  from  grain  —  the  patentee  being  confined 
'  to  bran  of  wheat.'  The  grant  of  the  trade  was  clearly  illegal. 
As  an  instance  of  gross  oppression  by  the  patentee  we  may  cite 
Hatfield  MSS.  4,  p.  261,  where  an  individual  appears  to  have 
been  imprisoned  by  Pakington  for  selling  starch  bought  under 


53.     HULME:    PATENT    SYSTEM  135 

Young's  patent.  Pakington  appears  to  have  undertaken  to  pay; 
certain  pensions  to  certain  Dutch  women  whose  names  are  con- 
nected with  the  introduction  of  starching  into  England  (ib. 
p.  614). 

No.  XLIV.  1588.  July  26.  Grant  to  Timothy  Bright, 
M.  D.,  of  a  short  and  new  kind  of  writing 
by  character  [for  15  years]. 

The  grant  is  to  teach,  print,  and  publish  works  in  shorthand. 
In  the  Lansd.  MSS.  there  is  a  letter  in  favour  of  the  system, 
with  the  Epistle  to  Titus  enclosed  as  a  specimen. 

No.  XLV.  1588.  Dec.  4.  Grant  to  Bevis  Bulmer  to  make 
and  cut  iron  into  small  pieces  to  work  out 
nails  [for  12  years]. 

There  is  reason  to  believe  that  the  invention  was  of  foreign 
origin,  although  it  is  stated  that  Bulmer  '  is  the  first  inventor  and 
publisher  within  the  realm.'  Bulmer  was  a  good  mechanic  and 
mining  engineer,  whose  services  were  in  demand  in  all  parts  of 
the  kingdom. 

No.  XLVL  1589.  Jan.  28.  Grant  to  George  and  John 
Evelyn  and  Rd.  Hills  to  dig  and  get  salt- 
petre [for  11  years]. 

The  grant  is  described  as  '  our  letters  of  commission  for  the 
making  of  saltpetre/  and  is  made  in  consideration  of  a  great 
quantity  of  corn  powder  to  be  delivered  to  '  our  store  within  the 
Tower/  A  new  grant,  drawn  by  Coke,  on  Sept.  7,  1591,  was 
made  to  Evelyn  and  others,  annulling  all  earlier  grants.  The 
constitutional  nature  of  the  saltpetre  grants  was  admitted  by  the 
Statute  of  Monopolies,  but  the  practice  was  objectionable,  owing 
to  the  inquisitorial  powers  and  right  of  entrance  upon  lands  con- 
veyed by  these  grants. 

No.  XLVII.  1589.  Feb.  7.  Grant  to  John  Spilman  to 
buy  all  manner  of  linen  rags,  &c.,  to  make 
white  writing  paper  [for  10  years]. 

The  grantee,  an  alien,  held  the  office  of  Jeweller  to  the  Queen. 
The  grant  is  possibly  connected  with  the  petition  of  Rd.  Tottyll, 
the  Elizabethan  law  publisher,  who  in  1585  stated  that  the 


136  V.     COMMERCIAL    LAW 

French,  by  buying  up  all  the  linen  rags  in  the  kingdom,  had 
thwarted  his  efforts  to  introduce  the  manufacture.  The  industry 
was  established  by  Spilman  at  Dartford,  where  he  employed  over 
600  workmen.  The  grant  prohibits  the  manufacture  of  brown 
paper,  and  is  void  if  the  former  manufacture  be  discontinued  for 
six  months.  On  July  15,  1597,  the  patent  was  reissued  for  four- 
teen years  with  the  same  proviso,  but  covering  the  manufacture 
of  all  kinds  of  paper.  The  text  of  the  original  grant  and  the 
petition  of  Tottyll  will  be  found  in  Arber's  Registers  of  the 
Stationers  Company,  i.  242,  ii.  814.  See  also  Rhys  Jenkins  in 
Library  Association  Record,  Sept.  —  Nov.  1900. 

No.  XL VIII.  1589.  Oct.  9.  Grant  to  Thos.  Procter,  of 
Marske,  Yorkshire,  and  Wm.  Peterson  to 
make  iron,  steel,  and  lead  by  using  earth 
coal,  sea  coal,  turf,  or  peat  [for  7  years]. 

The  consideration  of  the  grant  is  the  economy  of  fuel,  of  which 
one  load  would  be  required  in  place  of  four  per  ton  of  iron. 
Various  small  royalties  are  reserved  to  the  Crown. 

No.  XLIX.  1590.  Oct.  15.  Grant  to  John  Thorne- 
borough,  Dean  of  York,  for  the  refining  of 
pit  coal  [for  7  years]. 

The  object  of  the  invention  is  to  overcome  the  popular  objec- 
tion to  the  unsavoury  fumes  of  coal  used  in  the  imperfectly  con- 
structed hearths  of  the  period.  A  royalty  of  4>d.  per  chaldron 
on  the  refined  coal  for  domestic  use  and  8d.  per  chaldron  on  the 
exported  coal  is  reserved,  with  the  usual  proviso  in  favour  of 
users  of  old  processes. 

No.  L.  1591.  Nov.  4.  Grant  to  Reynold  Hoxton  to  make 
flasks  for  touch-boxes,  powder-boxes,  and  bullet- 
boxes  for  small-arms  [for  15  years]. 

Apparently  a  form  of  wooden  cartridge  containing  powder  and 
shot,  for  facilitating  the  loading  of  firearms. 

No.  LI.  1594.  March  23.  Grant  to  Richard  Drake  to 
make  aqua  composita,  aqua  vitae,  and  vinegar 
[for  21  years]. 

This  grant  may  be  regarded  as  typical  of  the  Elizabethan 
monopoly  system  at  its  worst.  It  recites  that  about  thirty  years 


53.     HULME:    PATENT    SYSTEM  137 

past  strangers  and  others  had  substituted  beer  in  the  manufacture 
of  the  above  liquors  and  '  sauces  ' ;  but  that  of  late  certain  covet- 
ous makers  had  further  employed  such  '  corrupt,  noisome,  and 
loathsome  stuff  '  that  a  reformation  of  the  abuses  was  urgently 
required  in  the  interests  of  the  public  health.  The  grant  pro- 
ceeds to  invest  in  Drake  the  sole  manufacture  of  the  ale  to  be 
employed  —  such  ale  to  be  sold  at  London  rates,  with  a  rent  of 
£20  per  annum  reserved  to  the  Crown.  Drake  was  further 
charged  with  the  suppression  of  all  vinegar,  &c.,  sold  in  casks 
not  bearing  his  own  trademarks.  At  the  last  moment,  '  when  the 
grant  was  fully  passed/  Lord  Burghley  intervened,  and  insisted 
upon  the  insertion  of  clauses  reserving  the  rights  of  those  manu- 
facturers who  employed  wine  lees  in  the  manufacture,  together 
with  those  of  the  makers  of  vinegar  for  domestic  uses  and  char- 
itable purposes.  Wales  is  also  excepted  from  the  grant.  The 
exaggerated  recitals  in  this  grant  excited  notice  at  the  time;  cf. 
Harrington,  Metamorphosis  of  Ajax,  and  the  '  Case  of  Monopo- 
lies/ For  the  abuse  of  the  grant  cf.  D'Ewes  Journal,  644,  and 
the  Lansd.  and  Harl.  MSS. 

No.  LIL  1597.  July  22.  Grant  to  Thos.  Lovell  to  inne, 
fence,  win,  drain,  and  recover  all  grounds,  &c., 
and  to  make  turf  or  peat  fit  to  be  burned  [for 
21  years]. 

The  '  inventor  '  learned  the  art  from  the  Dutch,  and  undertakes 
to  introduce  skilled  labour  from  abroad. 

No.  LIU.  1598.  April  21.  Grant  to  Edward  Wrigbt  to 
make  and  utter  mathematical  instruments  [for 
8  years]. 

Another  water-raising  device,  obtained  '  by  long  and  painful 
study  of  the  mathematical  sciences  '  by  the  petitioner,  a  Cam- 
bridge Master  of  Arts.  It  is  stated  '  a  special  work  '  for  supply- 
ing water  to  London  had  already  been  undertaken  by  the  pat- 
entee. Prior  rights  reserved. 

No.  LIV.  1598.  Aug.  11.  Special  license  to  Edward 
Darcye  for  transporting  cards  and  for  ma- 
king them  [for  21  years]. 

A  patent  for  the  sole  importation  of  playing-cards  had  been 
granted  (18  Eliz.  p.  1)  to  Ralph  Bowes  and  Thomas  Beding- 
field,  and  in  1578  John  Acheley,  of  London,  was  called  upon  by 
the  Privy  Council  to  answer  by  what  authority  he  presumed  to 


138 


V.     COMMERCIAL    LAW 


manufacture  and  sell  playing-cards  notwithstanding  the  above 
patent.  Acheley  replied  that  his  doings  were  lawful,  '  grounding 
himself  upon  the  laws  of  the  realm.'  The  legal  points  were  there- 
upon referred  to  the  Master  of  the  Rolls  (Sir  Wm.  Cordell)  and 
the  Attorney-General  (?  G.  Gerrard),  praying  them  to  take  some 
pains  and  certify  their  opinion, 'that  such  order  may  be  taken 
as  shall  be  agreeable  with  justice  and  equity.  Their  lordships, 
however,  hint  that  a  composition  between  the  parties  would  be  an 
acceptable  termination  of  the  dispute,  as  '  Acheley  doth  by  his 
cardmaking  set  manie  personnes  on  work  which  by  the  inhibition 
of  his  profession  would  otherwise  be  ydele.'  In  1579  and  1580 
further  action  was  taken  against  other  parties  who  had  imitated 
the  seal  of  the  patentee  with  a  view  to  avoid  detection.  In  1589, 
on  the  complaint  of  Bowes,  the  Privy  Council  ordered  that  the 
grants  be  maintained  according  to  the  contents  thereof,  and  that 
hereafter  infringers  shall  not  only  be  taken  to  prison  until  suffi- 
cient security  has  been  provided,  but  shall  also  have  such  tools, 
moulds,  or  other  instruments  taken  away,  broken  in  pieces  and 
defaced.  For  the  further  history  of  the  celebrated  grant  see 
Gordon,  Monopolies  by  Patents. 

No.  LV.    1599.    July  11.     Grant  to  Capt.  Thos.  Hayes  for 
making  of  instruments  of  war  [for  10  years]. 

Various  military  inventions  and  accoutrements  to  enable  sol- 
diers to  perform  the  work  of  '  Pyoners/  There  is  a  proviso 
that  the  requirements  of  the  Crown  shall  be  supplied.  In  1604 
the  patentee  notified  his  intention  to  present  the  above  invention 
to  the  Crown,  offering  the  master  of  the  Ordnance  £2,000  if  he 
could  get  the  portsack  introduced  into  the^southern  counties. 

The  results  of  the  industrial  policy  of  the  Elizabethan 
reign  may  now  be  presented  in  tabular  form :  — 


Period 

Alien 
Grants 

Native 
Grants 

Grants  for 
regulating 
Trade 

Total 

1561-1570 

15 

8 

0 

23 

1571-1580 

4 

7 

1 

12 

1581-1590 

2 

11 

1 

14 

1591-1600 

0 

4 

2 

6 

1601-1603 

0 

0 

0 

0 

1561-1603 

21 

30 

4 

55 

58.     HULME:    PATENT    SYSTEM  139 

The  first  column  of  our  classification  comprises  grants  for 
new  industries  and  inventions  to  aliens  or  naturalized  sub- 
jects of  the  Crown.  With  these  we  find  occasionally  associ- 
ated a  native,  acting  as  interpreter  and  intermediary  between 
the  foreigner  and  the  public^.  The  figures  for  the  period 
1571-90  indicate  the  development  of  native  enterprise,  al- 
though the  industries  still  bear  the  impress  of  foreign  sug- 
gestion. The  Statistics  for  1591-1603,  which  indicate  a 
practical  reversal  of  the  favourable  attitude  of  the  Crown 
toward  the  inventor,  afford  a  fair  criterion  of  the  industrial 
value  of  the  Elizabethan  patent  system.  During  this  period 
we  have  to  record  the  rejection  of  the  suits  for  protection  of 
the  following  inventions: —  (a)  The  stocking  frame  of  Lee 
—  the  most  original  invention  of  the  age,  which  for  lack 
of  encouragement  went  to  France,  where  the  inventor  is 
stated  to  have  received  a  privilege;  (&)  the  water-closet  of 
Harington,  which  was  reintroduced  about  a  century  and  a 
half  later;  (c)  a  scheme  of  Gianibelli  for  land  reclamation; 
(d)  various  devices  of  the  ingenious  Hugh  Platt,  in  part  of 
foreign  origin;  (e)  Stanley's  invention  of  armour  plates; 
and  (/)  a  scheme  for  sugar-refining,  the  novelty,  however,  of 
which  was  questioned. 

True  and  First  Inventor.  An  attempt  to  further  illustrate 
the  growth  of  the  native  inventive  talent  by  subdividing  the 
above  figures  into  grants  of  importation  and  invention  proved 
impracticable  owing  to  the  want  of  definition  in  the  phraseol- 
ogy descriptive  of  the  relation  of  the  patentee  to  the  subject 
of  the  grant.  In  the  16th  Cent,  the  meaning  of  the  verb  '  to 
invent '  and  its  derivatives  was  not  confined  to  its  modern 
signification.  For  instance  in  the  translation  of  the  well 
known  work  of  Polydore  Vergil  De  inventoribus  rerum,  under 
a  chapter  headed  *  Who  found  out  Metals '  we  are  told 
that  '  Eacus  invented  it  [i.  e.  gold]  in  Panchaia,'  and  again 
that  the  Justinians,  a  religious  order,  were  *  invented '  [i.  e. 
founded]  by  Lewis  Barbus.  This  view  has  since  been  con- 
firmed by  the  '  Oxford  English  Dictionary,'  which  has  as- 
signed to  the  verb  '  invent '  two  meanings  now  obsolete  (a)  to 
discover  —  a  meaning  still  preserved  in  the  phrase  *  the  inven- 
tion of  the  Cross,'  (&)  'to  originate,  to  bring  into  use  for- 


140  V.     COMMERCIAL    LAW 

mally  or  by  authority,  to  found,  establish,  institute  or  ap- 
point.' Before  attempting,  however,  to  assign  a  definite 
equivalent  of  the  '  the  true  and  first  inventor  '  of  the  Statute 
of  Monopolies  the  results  of  an  examination  of  the  phrase- 
ology of  the  patent  grants  and  legal  decisions  prior  to  the 
Statute  must  be  given.  Briefly,  on  the  Patent  Rolls  the 
words  are  found  in  all  these  meanings:  but  when  used  in 
the  modern  sense  they  are  generally  preceded  or  supported 
by  another  less  equivocal  term  or  phrase,  e.  g.  '  invented  and 
devised  '  '  devise  and  invention.'  Frequently  a  different  ter- 
minology is  selected,  e.  g.  '  first  finders  out  and  searchers  ' 
*  first  deviser  and  maker.'  Again  '  invention  '  is  often  as- 
serted in  the  later  clauses  of  the  patent  grant  where  no  claim 
to  invention  is  made  in  the  recitals  of  the  grant  ( Cf .  Patents 
No.  ii,  xxxv,  xlv,  lii).  Here  '  invention  '  must  be  translated 
as  '  new  art,'  for  as  invention  was  not  required  to  support 
a  patent  the  patentee  had  no  object  in  laying  claim  to  it, 
whilst  a  false  recital  was  fatal  to  the  validity  of  a  patent. 
Turning  from  the  Patent  Rolls  to  the  judicial  decisions, 
in  Darcy  v.  Allen,  '  invention  '  is  used  in  its  modern  sense 
preceded  by  another  word,  viz.  *  wit  and  invention  ' ;  but  in 
the  Clothworkers  of  Ipswich  case  (1615)  the  phrase  '  inven- 
tion and  a  new  trade '  is  actually  used  to  distinguish  an 
imported  process  from  '  invention,'  i.  e.  the  result  of  the  exer- 
cise of  the  inventive  faculty.  '  If  a  man  hath  brought  in  a 
new  invention  and  a  new  trade  ...  in  peril  of  his  life  or 
consumption  of  his  estate,  or  if  a  man  hath  made  a  new  dis- 
covery of  anything,  in  such  cases,  etc.'  Again,  *  Of  a  new 
invention  the  King  can  grant  a  patent  '  but  '  where  there  is 
no  invention  the  King  cannot  by  his  patent  hinder  any  trade.' 
Here  the  Court  is  dealing  with  the  amount  of  difference  re- 
quired to  support  a  patent,  not  with  the  source  from  which 
the  patented  process  is  derived.  The  following  reasons, 
therefore,  may  be  given  for  attributing  to  the  phrase  *  true 
and  first  inventor '  the  meaning  '  true  and  first  originator, 
founder  or  institutor  '  of  the  new  manufactures,  viz. : 

(a)  The  meaning  is  consistent  with  contemporary  usage. 

(b)  It  maintains  complete  conformity  between  the  judicial 
decisions  and  the  Statute  which  is  professedly  declaratory  of 


58.     HULME:    PATENT    SYSTEM  141 

those  decisions,  as  to  the  description  of  the  two  parties  who 
could  qualify  for  the  grant;  while  it  retains  in  the  Statute 
a  declaration  of  the  express  '  consideration  '  of  the  grants 
which  is  otherwise  wanting.  The  suggested  interpretation, 
it  will  be  observed,  specifies  neither  the  inventor  nor  the  im- 
porter directly,  but  includes  both. 

(c)  If  any  preference  had  been  intended  between  the  im- 
porter and  inventor,  the  former  would  have  been  favoured, 
for  the  introduction  of  new  foreign  industries  was  less  likely 
to  prove  inconvenient  than  improvements  on  existing  ones 
(Cf.  D'Ewes'  Journal,  678). 

(d)  If  the  Statute  had  proposed  to  favour  the  inventor  as 
against   the   importer   the  party  denoted  would  have   been 
described  with  greater  precision,  and  some  *  consideration  ' 
would  have  been  exacted  by  limiting  a  term  for  the  introduc- 
tion of  the  industry  or  by  requiring  some  form  of  disclosure 
of  the  invention-. 

It  will  be  readily  understood  how  the  meaning  of  invention 
became  associated  with  the  idea  of  experimental  effort  as 
distinguished  from  the  practical  institution  of  a  new  art. 
In  the  natural  order  of  things  patents  of  invention  succeeded 
to  patents  of  importation  as  the  base  of  national  industry 
was  broadened  and  as  its  level  was  gradually  raised  to  that 
of  the  Continent.  Yarranton's  complaint  in  1677  (Law 
Quart.  Review  July  1902)  could  hardly  have  been  penned  if 
the  word  had  then  retained  its  original  signification.  The 
practice  of  the  Crown  with  respect  to  patents  of  importation 
was  supported  indeed  by  Edgebury  v.  Stephens  (1691)  on 
the  ground  that  the  source  of  an  invention  is  immaterial, 
'  whether  learned  by  study  or  travel  it  is  the  same  thing,'  but 
the  light  which  once  illuminated  the  word  '  inventor  '  had 
faded,  and  henceforward  the  practice  of  the  Crown  has  been 
treated  as  '  an  anomaly  which  has  acquired  by  time  and  recog- 
nition the  force  of  law  (Edmunds  2nd  ed.  pp.  266-67),  but 
for  which  no  statutory  authority  is  forthcoming.' 

Disclosure  of  invention.  Hindmarch,  one  of  the  greatest 
writers  on  English  Patent  Law,  once  expressed  a  doubt 
whether  the  patentee  was  ever  under  an  obligation  to  work 
his  grant  at  all.  The  same  writer  in  his  chapter  on  the  patent 


142  V.     COMMERCIAL    LAW 

specification  asserted  that  a  grant  was  bad  in  law  which  con- 
tained no  technical  description  in  the  recitals  of  the  patent, 
or  in  respect  of  which  no  specification  was  required  to  be  filed. 
Both  statements  however  are  directly  opposed  to  the  evidence 
of  the  Patent  Rolls. 

That  disclosure  was  not  required  prior  to  the  middle  of 
the  eighteenth  century  may  be  gathered  from  the  final  clause 
in  the  Letters  Patent  which  ran  that  the  grant  should  be 
favorably  construed  by  the  Courts  'notwithstanding  the 
not  full  and  certain  describing  the  nature  and  quality  of 
the  said  invention  or  of  the  materials  thereunto  conducing 
and  belonging.'  This  clause,  although  not  peculiar  to  Let- 
ters Patent  for  inventions,  could  hardly  have  been  introduced, 
if  at  the  date  of  its  introduction  written  or  printed  disclosure 
of  the  invention  had  been  required  of  the  patentee.  The 
attitude  of  the  Crown  toward  disclosure  may  be  gathered 
from  the  three  following  typical  cases:  (A)  The  first  known 
patent  specification  relates  to  the  saltpetre  patent  of  1561. 
Here  the  original  proposal  was  that  the  Crown  should  manu- 
facture on  its  own  account,  and  a  sum  of  money  was  to  be 
paid  by  the  Queen  in  return  for  the  disclosure  of  the  new 
art  and  the  personal  services  of  the  introducer.  Subsequently 
the  bargain  was  transferred  to  two  London  tradesmen  who 
took  over  the  Crown's  liability  in  consideration  of  the  monop- 
oly. (B)  In  1611  Simon  Sturtevant,  on  his  own  initiative 
and  probably  with  a  fraudulent  motive,  filed  with  his  peti- 
tion what  he  called  a  '  Treatise  of  Metallica '  which  treatise 
he  covenanted  to  supplement  by  a  fuller  statement  to  be 
printed  and  published  within  a  given  term  after  the  letters 
patent.  This  anticipation  of  the  system  of  provisional  and 
complete  specification  is  in  itself  sufficiently  curious.  But  in 
his  final  treatise  Sturtevant  lays  down  with  great  clearness 
the  modern  doctrine  of  the  patent  specification,  adding  that 
'  he  was  not  tied  to  any  time  in  the  trial  of  his  invention.' 
He  was  speedily  undeceived,  for  in  the  following  year  the 
patent  was  cancelled  on  the  ground  of  his  outlawry  and  neg- 
lect to  work  the  patent.  (C)  A  century  later,  1711,  we  have 
the  case  of  Nasmith's  patent  from  which  we  quote  the  fol- 
lowing extract: 


53.     HULME:    PATENT   SYSTEM  143 

PATENT  ROLL,  10  ANNE.     PART  2. 

*  Anne,  &c.,  Whereas  John  Nasmith  of  Hamelton  in  North 
Britain,  apothecary,  has  by  his  petition  represented  to  us 
that  he  has  at  great  expense  found  out  a  new  Invention  for 
preparing  and  fermenting  wash  from  sugar  "  Molosses  "  and 
all  sorts  of  grain  to  be  distilled  which  will  greatly  increase 
our  revenues  when  put  in  practice  which  he  alleges  he  is  ready 
to  do  "  but  that  he  thinks  it  not  safe  to  mencon  in  what  the 
New  Invention  consists  untill  he  shall  have  obtained  our  Let- 
ters Patents  for  the  same.  But  has  proposed  to  ascertain 
the  same  in  writeing  under  his  hand  and  scale  to  be  Inrolled 
in  our  high  Court  of  Chancery  within  a  reasonable  time  after 
the  passing  of  these  our  Letters  Patents,"  &c.' 

From  these  cases  we  may  deduce  the  origin  of  the  specifi- 
cation, viz.  that  the  practice  arose  at  the  suggestion,  and  for 
the  benefit,  of  the  grantee  with  the  view  of  making  the  grant 
more  certain,  and  not  primarily  as  constituting  the  full  dis- 
closure of  the  invention  now  required  at  law  for  the  instruc- 
tion of  the  public. 

This  theory  harmonizes  with  what  is  known  of  the  practice 
of  the  sixteenth  and  seventeenth  centuries.  So  long  as  the 
monopoly  system  aimed  at  the  introduction  of  new  indus- 
tries such  as  copper,  lead,  gold,  and  silver  mining,  or  the 
manufacture  of  glass,  paper,  alum,  &c.,  &c.,  the  requisition 
of  a  full  description  would  have  required  a  treatise  rather 
than  a  specification,  and  would  have  materially  detracted 
from  the  concession  offered  by  the  Crown,  besides  constituting 
a  precedent  for  which  no  sufficient  reason  or  authority  could 
have  been  adduced.  But  when,  by  a  natural  development, 
the  system  began  to  be  utilized  by  inventors  working  more 
or  less  on  the  same  lines  for  the  same  objects,  the  latter  for 
their  own  protection  draughted  their  applications  with  a 
view  of  distinguishing  their  processes  from  those  of  their 
immediate  predecessors,  and  of  ensuring  priority  against  all 
subsequent  applicants.  Hence,  while  the  recitals  of  the 
sixteenth  century  deal  almost  exclusively  with  suggestions 
of  the  advantages  which  would  accrue  to  the  State  from  the 
possession  of  certain  industries,  or  with  statements  respect- 


144  V.     COMMERCIAL    LAW 

ing  steps  taken  by  the  applicants  to  qualify  themselves  for 
the  monopoly,  those  of  a  later  date  not  infrequently  deal  with 
the  technical  nature  of  the  proposed  improvement.  These 
recitals,  therefore,  while  forming  no  part  of  the  considera- 
tion of  the  grant,  are  undoubtedly  the  precursors  of  the 
modern  patent  specification.  Between  1711  and  1730  the 
wording  of  the  proviso  (when  the  latter  appears  among  the 
general  covenants  of  the  grant)  distinctly  recognizes  the 
proposal  as  emanating  from  the  applicant  — '  whereas  A 
did  propose  to  ascertain  under  his  hand  and  seal,  &c.,  &c. ; ' 
but  about  the  year  1730  the  form  of  a  proviso  voiding  the 
grant  in  case  of  the  non-filing  of  a  specification  was  substi- 
tuted. Still  the  practice  of  requiring  a  specification  cannot 
be  said  to  have  been  established  prior  to  the  middle  of  the 
eighteenth  century. 

The  first  judicial  pronouncement  as  to  the  position  which 
the  patent  specification  has  since  occupied  in  English  patent 
law  must  be  claimed  for  Lord  Mansfield,  though  the  exact 
date  of  his  Lordship's  dictum  cannot  at  present  be  stated. 
The  following  quotation,  establishing  the  fact,  is  taken  from 
the  summing  up  of  Lord  Mansfield  in  Liardet  v.  Johnson 
(1778),  a  case  supposed  to  have  been  unreported.  There 
is  some  reason  to  think  that  the  pamphlet  containing  the 
account  of  the  trial  was  suppressed  shortly  after  its  publi- 
cation (Cf.  Law  Quart.  Review,  July  1902).  Lord  Mans- 
field's words  are  as  follows: 

'  The  third  point  is  whether  the  specification  is  such  as  in- 
structs others  to  make  it.  For  the  condition  of  giving 
encouragement  is  this:  that  you  must  specify  upon  record 
your  invention  in  such  a  way  as  shall  teach  an  artist,  when 
your  term  is  out,  to  make  it  —  and  to  make  it  as  well  as  you 
by  your  directions ;  for  then  at  the  end  of  the  term,  the  pub- 
lic have  the  benefit  of  it.  The  inventor  has  the  benefit  during 
the  term,  and  the  public  have  the  benefit  after.  But  if,  as  Dr. 
James  did  with  his  powders,  the  specification  of  the  composi- 
tion gives  no  proportions,  there  is  an  end  of  his  patent,  and 
when  he  is  dead,  nobody  is  a  bit  the  wiser;  the  materials 
were  all  old  —  antimony  is  old,  and  all  the  other  ingredients. 
If  no  proportion  is  specified,  you  are  not,  I  say,  a  bit  the 


53.     HULME:    PATENT    SYSTEM  145 

wiser ;  -  and,  therefore,  I  have  determined,  in  several  cases 
here,  the  specification  must  state,  where  there  is  a  composi- 
tion, the  proportions ;  so  that  any  other  artist  may  be  able 
to  make  it,  and  it  must  be  a  lesson  and  direction  to  him  by 
which  to  make  it.  If  the  invention  be  of  another  sort,  to  be 
done  by  mechanism,  they  must  describe  it  in  a  way  that  an 
artist  must  be  able  to  do  it.' 

Novelty.  The  statutory  definition  of  novelty  is  precise. 
It  confines  future  grants  '  to  the  sole  working  and  making 
of  new  manufactures  .  .  .  which  others  at  the  time  of  making 
such  letters  patent  and  grant  shall  not  use.  The  statutory 
limitation  reappears  in  the  clause  in  the  letters  patent  which 
avoids  the  grant  on  proof  that  the  said  invention  '  is  not  a 
new  manufacture  as  to  the  public  use  and  exercise  thereof/ 
Modern  commentators,  however,  jump  to  the  conclusion  that 
under  the  Statute  ' there  must  be  novelty.'  But  manifestly 
a  proper  deduction  from  the  clause  is  that  want  of  novelty 
could  not  be  raised  as  a  separate  issue  apart  from  prior  user. 
Neither  in  Bir cot's  case  or  in  Coke's  commentary  do  we  find 
any  trace  of  the  doctrine  that  proof  of  prior  publication 
would  avoid  a  patent.  Yarranton  (Law  Quart.  Review,  July 
1902)  who  states  the  case  against  patents  more  strongly  even 
than  Coke  is  also  silent  as  to  this  defeasance.  Novelty  ac- 
cording to  these  writers  is  limited  to  a  comparison  with  the 
corresponding  art  within  the  realm,  but  within  this  limited 
area  absolute  distinction  may  be  required  to  be  shown.  By 
a  curious  coincidence  this  interpretation  of  the  Statute  is  to 
be  found  in  Liardet  v.  Johnson,  the  case  already  referred  to 
as  having  by  its  enunciation  of  the  doctrine  of  the  patent 
specification  substantially  relaid  the  foundations  of  the  law 
of  patents. 

6  The  other  extreme,'  said  Lord  Mansfield,  *  is  the  suf- 
fering men  to  get  monopolies  of  what  is  in  use  and  in  the 
trade  at  the  time  they  apply  for  letters  patent,  and  therefore 
the  Statute  of  King  James  expressly  qualifies  it.  That  it 
must  be  of  such  invention  (sic)  as  are  not  then  used  by 
others.'  Again  *  An  invention  must  be  something  in  the 
trade  and  followed  and  pursued ; '  '  whether  it  was  in  books 
or  receipts  it  never  prevailed  in  practice  or  in  the  trade.' 


146  V-     COMMERCIAL    LAW 

The  modern  view  of  the  law  of  Novelty  was  unsuccessfully 
urged,  it  should  be  noted,  by  the  defendants'  counsel,  but  in 
this  trial  the  learned  judge  would  appear  not  to  have  real- 
ised, or  to  have  been  unwilling  to  apply  the  results  which 
flowed  naturally  from  his  previous  dicta.  If  disclosure  was 
the  sole  obligation  laid  upon  the  inventor  by  the  grant,  proof 
of  prior  disclosure  must  render  the  patent  invalid  for  want 
of  consideration. 

Utility.  The  statute  does  not  in  terms  mention  utility 
(Edmunds.  2nd  ed.  p.  100:  Frost  2nd  ed.  139)  and  the 
chapter  on  utility  in  the  textbooks  is  generally  vague  and 
unsatisfactory.  Utility,  of  course,  is  implied  in  the  phrase 
*  new  manufactures  ...  to  the  true  and  first  inventors 
thereof,'  for  the  introduction  of  a  new  art  on  a  commercial 
scale  cannot  take  place  unless  the  product  serves  some  useful 
purpose.  Arts,  the  exercise  of  which  are  '  contrary  to  law, 
or  mischievous  to  the  State  or  generally  inconvenient '  are 
separately  provided  for. 

Jurisdiction.  In  a  recent  Government  paper  on  the  work- 
ing of  the  Patent  Acts  [Cd  906]  the  origin  and  exercise  of 
the  powers  committed  to  the  Privy  Council  with  respect  to 
the  revocation  of  patents  on  the  ground  of  inconvenience  is 
dealt  with  at  some  length.  Under  the  Stuarts  a  clause  was 
also  inserted  directing  the  patentee  in  case  of  resistance  to 
the  grant  to  certify  the  same  to  the  Court  of  Exchequer. 
Later  on  the  King's  Bench  or  Privy  Council  are  substituted : 
but  finally  the  Crown  was  content  to  threaten  the  utmost 
rigour  of  the  law  in  case  of  contempt  of  this  '  Our  Royal 
Command,'  without  specifying  where  relief  was  to  be  ob- 
tained. The  whole  question  of  the  jurisdiction  of  the  patent 
grants  in  the  17th  Century  requires  further  research;  but 
there  are  grounds  for  thinking  that  as  a  rule  this  jurisdic- 
tion was  exercised  by  the  Privy  Council  down  to  the  middle 
of  the  18th  Century.  The  point  is  of  great  importance  in 
explaining  the  want  of  continuity  between  the  Statute  of 
Monopolies  and  the  decisions  under  the  Statute  in  the  latter 
half  of  the  18th  Cent.  It  is  clear  that  at  this  period  the 
Courts  were  without  precedents  to  guide  them,  for  the  Privy 
Council  was  an  executive  body,  and  not  a  legally  qualified 


53.     HULME:    PATENT    SYSTEM  147 

tribunal.  The  following  case  of  revocation  of  a  patent  by 
the  Privy  Council  in  the  year  1745,  acting  under  the  powers 
reserved  to  it  by  the  above  clause  in  the  letters  patent  will  go 
far  to  confirm  this  view.  In  this  year  an  order  vacating 
Betton's  patent  for  making  British  oil  was  made  at  a  meet- 
ing of  the  Council,  at  which  were  present  the  King,  the  Arch- 
bishop of  Canterbury,  and  other  dignitaries.  The  order 
states  that  a  petition  for  revocation  had  been  presented  by 
two  makers  and  dealers  in  a  similar  oil,  that  the  matter  had 
been  referred  to  the  Law  Officers,  who  reported  that  the  peti- 
tioners had  made  good  their  case  and  that  they  were  of  opin- 
ion that  the  letters  patent  should  be  made  void.  Whereupon 
the  Lords  of  the  Committee  of  the  Privy  Council  agreeing 
with  the  opinion  of  the  Law  Officers,  the  King  was  pleased 
to  order  that  the  patent  should  be  made  void,  and  an  order 
to  this  effect  was  therefore  signed  by  7  of  the  Privy  Coun- 
cillors present. 


54.     THE    HISTORY    OF    THE    CARRIER'S 
LIABILITY  l 

BY  JOSEPH  HENRY  BEALE,  JR.  8 

THE  extraordinary  liability  of  the  common  carrier  of 
goods  is  an  anomaly  in  our  law.  It  is  currently  called 
"  insurer's  liability,"  but  it  has  nothing  in  common  with  the 
voluntary  obligation  of  the  insurer,  undertaken  in  consider- 
ation of  a  premium  proportioned  to  the  risk.  Several  at- 
tempts have  been  made  to  explain  it  upon  historical  grounds, 
the  most  elaborate  that  of  Mr.  Justice  Holmes.3  His  ex- 
planation is  so  learned,  ingenious,  and  generally  convincing, 
that  it  is  proper  to  point  out  wherein  it  is  believed  to  fall 
short. 

His  argument  is  in  short  this.  In  the  early  law  goods 
bailed  were  absolutely  at  the  risk  of  the  bailee.  This  was 
held  in  Southcote's  Case,4  and  prevailed  long  after.  The 
ordinary  action  to  recover  against  a  bailee  was  detinue. 
But  as  that  gradually  fell  out  of  use  in  the  seventeenth  cen- 
tury its  place  was  necessarily  taken  by  case;  and  in  order 
that  case  might  lie  for  a  nonfeasance,  some  duty  must  be 
shown.  There  were  two  ways  of  alleging  a  duty :  by  a  super 
se  assumpsit,  and  by  stating  that  the  defendant  was  engaged 
in  a  common  occupation.  It  was  usual  to  include  an  allega- 
tion of  negligence,  from  abundant  caution,  but  that  was 

xThis  Essay  was  first  printed  in  the  Harvard  Law  Review,  1897, 
vol.  XI,  pp.  158-168. 

2  A  biographical  sketch  of  this  author  will  be  found  prefixed  to  Essay 
No.  17,  Vol.  I  of  this  Collection. 

3  The  Common  Law,  Lecture  V. 

4  4  Co.  83  b;  Cro.  Eliz.  815.     A  fuller  and  better  report  than  either 
of  these  is  in  a  manuscript  report  in  the  Harvard  Law  Library,  42-45 
Eliz.  109  b. 


54.     BEALE:  CARRIER'S    LIABILITY        U9 

"  mere  form."  Chief  Justice  Holt l  finally  overthrew  the 
doctrine  of  the  bailee's  absolute  liability,  except  where  there 
was  a  common  occupation,  or  (of  course)  where  there  was 
an  express  assumpsit.  The  extraordinary  liability  of  a 
carrier  is  therefore  a  survival  of  a  doctrine  once  common: 
to  all  bailments.  <i 

Judge  Holmes  does  not  explain  satisfactorily  why  this 
doctrine  should  not  have  survived  in  the  case  even  of  all 
common  occupations,  but  only  in  the  case  of  the  common  car- 
rier of  goods;  nor  does  he  account  for  the  fact  that  the 
carrier  is  held  absolutely  liable,  not  merely,  like  the  bailee 
once,  for  the  loss  of  goods,  but,  unlike  that  bailee,  for  injury 
to  them.  The  difficulties  were  not  neglected  from  inadver- 
tence, for  he  mentions  them.2  But  without  laboring  these 
points,  his  main  proposition  should  be  carefully  considered. 
Is  it  true  that  the  bailee  was  once  absolutely  liable  for  goods 
taken  from  him  ?  It  may  be  so ;  Pollock  and  Maitland  seem 
to  give  a  hesitating  recognition  to  the  doctrine,3  but  the 
evidence  is  not  quite  convincing.4 

*In  Lane  v.  Cotton,  12  Mod.  472,  and  Coggs  v.  Bernard,  2  Ld.  Raym. 
909;  obiter  in  both  cases. 

2  Page  199. 

8  Hist.  Eng.  Law,  169. 

4  [  It  is  however  certain  that  the  Germanic  common  law  of  the  Norman 
Conquest  period  did  make  bailees  for  hire,  of  all  sorts  (including  inn- 
keepers, pledgees,  and  carriers),  responsible  absolutely  for  the  goods 
delivered,  even  when  lost  by  theft,  and  regardless  of  negligence ;  e.  g. 
Loersch,  Aachener  Rechtsdenkmaler  aus  den  13o,  14o,  15o  Jahrhunderten, 
1871,  p.  115,  Art.  63:  "  Weirt  sache  dat  eyn  gast  geve  synen  vert  zo 
halden  gelt,  golt,  silver  off  ander  have,  ind  dan  deme  werde  dat  gestolen 
worde,  ind  neyt  van  synen  gude,  dat  were  he  schuldich  deme  gast  zo 
richten";  Sachsenspiegel,  II,  60,  §  1:  "  Svelk  man  enen  anderen  liet  oder 
sat  perde  oder  en  kleid  oder  ienegerhande  varende  have,  to  svelker  wis 
he  die  ut  sinen  geweren  let  mit  sime  willen,  verkoft  sie  die,  die  sie  in 
geweren  hevet,  oder  versat  he  sie,  oder  verspelet  he  sie,  oder  wert  sie 
ime  ver stolen  oder  afgerovet,  jene  die  sie  verlegen  oder  versat  hevet, 
die  ne  mach  dar  nene  vorderunge  up  hebben,  ane  uppe  den  deme  he  sie 
leich  oder  versatte;"  so  also  ib.  Ill,  5;  4.  This  rule  was  inseparable 
from  the  notion  of  gewere,  or  seisin,  and  from  the  corresponding  action 
of  the  bailee  against  the  thief  and  the  lack  of  action  by  the  bailor 
against  the  thief,  —  a  connection  expressly  mentioned  in  the  Year  Book 
cases  cited  post,  p.  152,  note  4,  and  fully  expounded  by  the  historians 
of  Germanic  law:  Heusler,  Institutionen  des  deutschen  Rechts,  1885-6, 

I,  390-96,  II,  191,  203,  212;    Brunner,  Deutsche  Rechtsgeschichte,  1892, 

II,  509,  510;    Jobb£-Duval,  La  revendication  des  meubles  en  droit  fran- 
cais,  in  Nouv.  revue  hist,  de  droit  fr.  et  Stranger,  IV,  1880,  p.  463,  at 
p.  475,  note  1   (Laband,  Vermogensrechtliche  Klagen,  1869,  p.  67,  is  ex- 
plainable otherwise).     This  being  so    (and  the  presumption  being  that 


150  V.     COMMERCIAL    LAW 

No  one  versed  in  English  legal  history  will  deny  that  the 
bailee  of  goods  was  the  representative  of  them,  and  the  bailor's 
only  right  was  in  the  proper  case  to  require  a  return;  and 
therefore  that  when  a  return  was  required  it  was  incum- 
bent upon  the  bailee  to  account.  Nor  can  it  be  doubted  that 
the  law  then  tended  to  lay  stress  on  facts  rather  than  rea- 
sons, —  to  hang  the  man  who  had  killed  another  rather  than 
liear  his  excuse.  We  should  therefore  not  be  surprised,  on  the 
one  hand,  to  find  that,  where  one  had  obliged  himself  to 
return  a  chattel,  no  excuse  would  be  allowed  for  a  failure 
to  return.  On  the  other  hand,  by  the  machinery  of  warranty, 
it  was  always  possible  to  explain  away  the  possession  of  an 
undesirable  chattel;  why  not  to  explain  the  non-possession 
of  a  desired  one?  We  should  therefore  not  be  greatly  sur- 
prised if  the  authorities  allowed  some  explanation. 

Three  actions  were  allowed  a  bailor  against  a  bailee:  det- 
inue, account,  and  (after  the  Statute  of  Westminster)  case. 
Let  us  see  whether  in  either  of  these  actions  the  defendant 
was  held  without  the  possibility  of  excuse. 

Case  lies  only  for  a  tort ;  either  an  active  misfeasance,  or, 
in  later  times,  a  negligent  omission.  There  must  therefore 
be  at  the  least  negligence ;  and  so  are  the  authorities.  The 
earliest  recorded  action  against  a  carrier  is  case  against  a 
boatman  for  overloading  his  boat  so  that  plaintiff's  mare  was 
lost;  it  was  objected  that  the  action  would  not  lie,  because 
no  tort  was  supposed;  the  court  answered  that  the  over- 
loading was  a  tort.1  So  in  an  action  on  the  case  for  neg- 
ligently suffering  plaintiff's  lambs,  bailed  to  defendant,  to 
perish,  it  was  argued  that  the  negligence  gave  occasion  for 
an  action  of  tort.2  So  later,  in  the  case  of  an  agister  of 
cattle,  the  negligence  was  held  to  support  an  action  on  the 

the  Anglo-Norman  rule  of  the  same  period  shared  this  fundamental 
idea),  it  is  obvious  that  the  conflict  of  precedents  in  England  between 
the  1200s  and  the  1500s  (as  shown  in  this  Essay)  is  more  naturally 
explained  as  a  growing  effort  to  cut  down  an  originally  absolute  lia- 
bility than  as  an  effort  to  increase  an  originally  limited  liability.  In 
other  words,  Mr.  Justice  Holmes'  explanation  fits  perfectly  with  the 
tenor  of  the  primitive  law,  while  the  learned  Essayist's  explanation  does 
not  fit  at  all.  —  EDS.] 

J22  Ass.  41   (1348). 

*2  H.  7,  11,  pi.  9  (1487). 


54.     BE  ALE:  CARRIER'S    LIABILITY        151 

case. l  In  these  cases  the  action  would  not  lie  except  for  the 
negligence. 2  In  the  case  of  ordinary  bailments,  therefore, 
negligence  of  the  bailee  must  be  alleged  and  proved  to  sup- 
port an  action  on  the  case  against  him.  I  shall  hereafter 
consider  actions  on  the  case  against  those  pursuing  a  com- 
mon occupation.  *Ji 

In  the  action  of  account  there  is  hardly  a  doubt  that  rob- 
bery without  fault  of  bailee  could  be  pleaded  in  discharge 
before  the  auditors. 3  To  the  contrary  is  only  a  single  dictum 
of  Danby,  C.  J.,  and  there  the  form  of  action  is  perhaps 
doubtful.4  Indeed,  in  Southcote's  Case  the  court  admitted 
that  the  factor  would  be  discharged  before  the  auditors  in 
such  a  case,  and  drew  a  distinction  between  factor  and  inn- 
keeper or  carrier. 

In  the  action  of  detinue  then,  if  anywhere,  we  shall  find 
the  bailee  held  strictly;  and  the  authorities  must  be  exam- 
ined carefully. 

The  earliest  authority  is  a  roll  where,  in  detinue  for  char- 
ters, the  bailee  tendered  the  charters  minus  the  seals,  which 
had  been  cut  off  and  carried  away  by  robbers.  On  demurrer 
this  was  held  a  good  defence.5  The  next  case  was  detinue 
for  a  locked  chest  with  chattels.  The  defence  was  that  the 
chattels  were  delivered  to  defendant  locked  in  the  chest,  and 
that  thieves  carried  away  the  chest  and  chattels  along  with 
the  defendant's  goods.  The  plaintiff  was  driven  to  take 
issue  on  the  allegation  that  the  goods  were  carried  away  by 
thieves.6  A  few  years  later,  counsel  said  without  dispute 

1Moo.  543  (1598). 

9 The  assumpsit  is  also  mentioned  in  them;  but  this  means,  not  a 
contract  that  they  shall  be  safe,  but  an  undertaking  to  perform  a  certain 
purpose.  Holt,  C.  J.,  in  Coggs  v.  Bernard,  2  Ld.  Raym.  909,  919. 

8Fitz.  Accompt,  pi.  Ill  (1348)  ;  41  E.  3,  3  (1367)  ;  2  R.  3,  14  (1478)  ; 
Vere  v.  Smith,  1  Vent.  121  (1661). 

4  9  E.  4,  40  (1469).  In  an  action  of  account,  the  court  held  that 
robbery  could  not  be  pleaded  in  bar,  but  if  it  was  an  excuse  it  must  be 
pleaded  before  the  auditor.  Danby's  remark,  that  robbery  excuses  a 
bailee  only  if  he  takes  the  goods  to  keep  as  his  own,  has  no  reference 
to  the  action  itself.  Brooke  abridges  the  case  under  Detinue,  27. 

"Brinkburn  Chartulary,  p.  105  (1299). 

•Fitz.,  Detinue,  59  (1315).  According  to  Southcote's  Case  and  Judge 
Holmes  (Com.  Law,  p.  176),  Fitzherbert  states  the  issue  to  have  been 
that  the  goods  were  delivered  outside  the  chest.  Neither  the  first  (1516) 
edition  of  Fitzherbert,  nor  others  (1565,  1577)  to  which  I  have  access, 
are  so.  In  the  printed  book  (8  E.  2,  275)  it  is  indeed  laid  down  as 


152  V.     COMMERCIAL    LAW 

that  if  goods  bailed  were  burned  with  the  house  they  were  in, 
it  would  be  an  answer  in  detinue. 1  Then  where  goods  were 
pledged  and  put  with  the  defendant's  own  goods,  and  all 
were  stolen,  that  was  held  a  defence ;  the  plaintiff  was  obliged 
to  avoid  the  bar  by  alleging  a  tender  before  the  theft.2 
Finally  in  1432,  the  court  (Cotesmore,  J.)  said:  "  If  I  give 
goods  to  a  man  to  keep  to  my  use,  if  the  goods  by  his  mis- 
guard  are  stolen,  he  shall  be  charged  to  me  for  said  goods ; 
but  if  he  be  robbed  of  said  goods  it  is  excusable  by  the  law."  3 

At  last,  in  the  second  half  of  the  fifteenth  century,  we  get 
the  first  reported  dissent  from  this  doctrine.  In  several 
cases  it  was  said,  usually  obiter,  that  if  goods  are  carried 
away  (or  stolen)  from  a  bailee  he  shall  have  an  action,  because 
he  is  charged  over  to  the  bailor. 4 

In  several  later  cases  the  old  rule  was  again  applied,  and 
the  bailee  discharged.6  There  seems  to  be  no  actual  decision 
holding  an  ordinary  bailee  responsible  for  goods  robbed  until 
Southcote's  Case.6 

Gawdy  and  Holmes  state  it;  we  have  therefore  a  choice  of  texts.  It  is 
common  knowledge  that  Maynard's  text  is  often  corrupt;  it  is  a  century 
and  a  half  further  from  the  original;  and  in  this  case  the  inaccuracy 
is  manifest.  The  text  throughout  has  to  be  corrected  by  comparison 
with  Fitzherbert  in  order  to  make  it  sensible.  From  internal  evidence 
Fitzherbert's  text  must  be  chosen.  It  would  be  interesting  to  have  a 
transcript  of  the  roll. 

1 12  &  13  E.  3,  244  (1339). 

2  29  Ass.  163,  pi.  28  (1355).  Judge  Holmes,  following  the  artificial 
reasoning  of  Gawdy  (or  Coke?)  says  the  pledge  was  a  special  bailment 
to  keep  as  one's  own.  The  reason  stated  by  Coke  is  exactly  opposed 
to  that  upon  which  Judge  Holmes's  own  theory  is  based;  it  is  that  a 
pledgee  undertakes  only  to  keep  as  his  own  because  he  has  "  a  property 
in  them,  and  not  a  custody  only,"  like  other  bailees.  The  court  in  the 
principal  case  knows  nothing  of  this  refinement.  "  For  W.  Thorpe,  B., 
said  that  if  one  bails  me  his  goods  to  keep,  and  I  put  them  with  mine 
and  they  are  stolen,  I  shall  not  be  charged."  After  refusal  of  tender, 
defendant  would  have  been,  not,  as  Judge  Holmes  says,  a  general  bailee, 
but  a  tortious  bailee,  and  therefore  accountable.  The  refusal  was  the 
detinue,  or  as  the  court  said  in  Southcote's  Case,  "There  is  fault  in 
him." 

8 10  H.  6,  21,  pi.  69. 

4  2  E.  4,  15,  pi.  7,  by  Littleton  (1462)  ;  9  E.  4,  34,  pi.  9,  by  Littleton 
and  Brian,  JJ  (1469)  ;  9  E.  4,  40,  pi.  22  (1469),  by  Danby,  C.  J.  (ante)  ; 
6  H.  7,  12,  pi.  9,  per  Fineux,  J.  (1491)  ;  10  H.  7,  26,  pi.  3;  per  Fineux,  J. 
(1495).  In  the  last  two  cases,  Keble,  arguendo,  had  stated  the  opposite 
view;  and  Brooke  (Detinue,  37)  by  a  query  appears  rather  to  approve 
Keble's  contention. 

61  Harvard  MS.  Rep.  3a  (1589,  stated  later),  semble;  Woodlife's 
Case,  Moo.  462  (1597);  Mosley  v.  Fosset,  Moo.  543  (1598),  semble. 

84  Coke,  83  b,  Cro.  Eliz.  815;  Harv.  MS.  Rep.  42-45  Eliz.  109  b  (1600). 


54.     BE  ALE  .'CARRIER'S    LIABILITY        153 

This  was  detinue  for  certain  goods  delivered  to  the  defend- 
ant "  to  keep  safe."  Plea,  admitting  the  bailment  alleged, 
that  J.  S.  stole  them  out  of  his  possession.  Replication,  that 
J.  S.  was  defendant's  servant  retained  in  his  service.  De- 
murrer, and  judgment  for  the  plaintiff. 

The  case  was  decided  by  Gawdy  and  Clench,  in  the  absence 
of  Popham  and  Fenner;  and  it  is  curious  that  Gawdy  and 
Clench  had  differed  from  the  two  others  as  to  the  degree 
of  liability  of  a  bailee  in  previous  cases. 1  It  would  seem  that 
judgment  might  have  been  given  for  plaintiff  on  the  repli- 
cation ;  the  court,  however,  preferred  to  give  it  on  the  plea. 
This  really  rested  on  the  form  of  the  declaration ;  a  promise 
to  keep  safely,  which,  as  the  court  said,  is  broken  if  the  goods 
come  to  harm.  The  only  authority  cited  for  the  decision 
was  the  Marshal's  Case,  which  I  shall  presently  examine  and 
show  to  rest  on  a  different  ground.  The  rest  of  Coke's  re- 
port of  the  case  (of  which  nothing  is  said  in  the  other  re- 
ports) is  an  artificial  and,  pace  Judge  Holmes,  quite  unsuc- 
cessful attempt  to  reconcile,  in  accordance  with  the  decision, 
the  differing  earlier  opinions.  The  case  has  probably  been 
given  more  authority  than  it  really  should  have.  At  the 
end  of  the  manuscript  report  cited  we  have  these  words : 
"  Wherefore  they  (cceteris  dbsentibus)  give  judgment  for  the 
plaintiff  nisi  aliquod  dicatur  in  contrario  die  veneris  prox- 
imo." And  it  would  seem  that  judgment  was  finally  given 
by  the  whole  court  for  the  defendant.  In  the  third  edition 
of  Lord  Raymond's  Reports  is  this  note:  "That  notion  in 
Southcote's  Case,  that  a  general  bailment  and  a  bailment  to 
be  safely  kept  is  all  one,  was  denied  to  be  law  by  the  whole 
court,  ex  relations  Magistri  Buribury"  2  It  was  not  uncom- 
mon for  a  case  to  be  left  half  reported  by  the  omission  of 
a  residuum;  and  it  may  be  that  Southcote's  Case  as  printed 
is  a  false  report.  One  would  be  glad  to  see  the  record. 

Southcote's  Case  is  said  to  have  been  followed  for  a  hundred 
years.  The  statement  does  it  too  much  honor.  It  seems  to 
be  the  last  reported  action  of  detinue  where  the  excuse  of 
loss  by  theft  was  set  up ;  and,  as  has  been  seen,  the  principle 

1  Woodlife's  Case,  Moo.  462 ;  Mosley  t>.  Fosset,  Moo.  543. 
»2  Ld.  Raym.  911  n. 


154  V.     COMMERCIAL    LAW 

it  tries  to  establish  does  not  apply  to  other  forms  of  action. 
It  was  cited  in  several  reported  actions  on  the  case  against 
carriers,  but  seems  never  to  have  been  the  basis  of  decision; 
on  the  other  hand,  in  Williams  v.  Lloyd,1  where  it  was  cited 
by  counsel,  a  general  bailee  who  had  lost  the  goods  by  robbery 
was  discharged.  The  action  was  upon  the  case. 

Having  thus  briefly  explained  why  Judge  Holmes's  theory 
of  the  carrier's  liability  is  not  entirely  satisfactory,  I  may 
now  suggest  certain  modifications  of  it.  I  believe,  with  him, 
that  the  modern  liability  is  an  ignorant  extension  of  a  much 
narrower  earlier  liability ; 2  but  the  extension  was  not  com- 
pleted, I  think,  for  eighty  years  after  the  date  he  fixes,  and 
the  mistaken  judge  was  not  Lord  Holt,  but  Lord  Mansfield. 

From  the  earliest  times  certain  tradesmen  and  artificers 
were  treated  in  an  exceptional  way,  on  the  ground  that  they 
were  engaged  in  a  "  common  "  or  public  occupation ;  and 
for  a  similar  reason  public  officials  were  subjected  to  the 
same  exceptional  treatment.  Such  persons  were  innkeepers,3 
victuallers,  taverners,  smiths,4  farriers,5  tailors,6  carriers,7 
ferrymen,  sheriffs,8  and  gaolers.9  Each  of  these  persons, 
having  undertaken  the  common  employment,  was  not  only 
at  the  service  of  the  public,  but  was  bound  so  to  carry  on 
his  employment  as  to  avoid  losses  by  unskilfulness  or  im- 
proper preparation  for  the  business.  In  the  language  of 
Fitzherbert,  "  If  a  smith  prick  my  horse  with  a  nail,  I  shall 
have  my  action  on  the  case  against  him  without  any  warranty 
by  the  smith  to  do  it  well ;  for  it  is  the  duty  of  every  artificer 
to  exercise  his  art  rightly  and  truly  as  he  ought."10  By 
undertaking  the  special  duty  he  warrants  his  special  prepa- 
ration for  it.  The  action  is  almost  invariably  on  the  case. 

One  of  the  earliest  cases  in  the  books  was  against  an  inn- 

1  Palmer,  548;  W.  Jones,  179  (1628). 

2  See  The  Common  Law,  pp.  199,  200. 

8 11  H.  4,  45,  pi.  8;  22  H.  6,  21,  pi.  38;  ib.  38,  pi.  8. 
4  46  E.  3,  19. 

"Often  called  "common  marshal."    19  H.  6,  49,  pi.  5. 
6 1  Harv.  MS.  Rep.  3a. 

'These  were  "country"  carriers;  the  term  did  not  at  first  include 
carriers  by  water. 
8  41  Ass.  12. 
8  33  H.  6,  1,  pi.  3. 
10F.  N.  B.  94  d. 


64.     BEALE:  CARRIER'S    LIABILITY        155 

keeper,  stating  the  custom  of  England  for  landlords  and  their 
servants  to  guard  goods  within  the  inn ;  it  was  alleged  that 
while  plaintiff  was  lodged  in  the  inn  his  goods  were  stolen 
from  it.  There  was  no  allegation  of  fault  in  the  defendant, 
and  on  this  ground  he  demurred;  but  he  was  held  liable 
notwithstanding.  The  plaintiff  prayed  for  a  capias  ad  satis- 
faciendum.  Knivet,  J.  replied,  that  this  would  not  be  right, 
since  there  was  no  tort  supposed,  and  he  was  charged  by  the 
law,  and  not  because  of  his  fault ;  it  was  like  the  case  of  suit 
against  the  hundred  by  one  robbed  within  it ;  he  ought  not  to 
be  imprisoned.  The  plaintiff  was  forced  to  be  content  with 
an  elegit  on  his  lands.1  A  few  years  later  a  smith  was  sued 
for  "nailing"  the  plaintiff's  horse;  the  defendant  objected 
that  it  was  not  alleged  vi  et  armis  or  malitiose,  but  the  objec- 
tion was  overruled,  and  it  was  held  that  the  mere  fact  of 
nailing  the  horse  showed  a  cause  of  action.2  An  action  was 
brought  against  a  sheriff  for  non-return  of  a  writ  into  court ; 
he  answered  that  he  gave  the  writ  to  his  coroner,  who  was 
robbed  by  one  named  in  the  exigent.  He  was  held  liable 
notwithstanding,  Knivet,  J.  saying,  "  What  you  allege  was 
your  own  default,  since  the  duty  to  guard  was  yours."  3 

In  1410,  in  an  action  against  an  innkeeper,  Hankford,  J. 
used  similar  language :  "  If  he  suffers  one  to  lodge  with  him 
he  answers  for  his  goods ;  and  he  is  bound  to  have  deputies 
and  servants  under  him,  for  well  keeping  the  inn  during  his 
absence."  4  A  noteworthy  remark  was  Judge  Paston's  a  few 
years  later :  "  You  do  not  allege  that  he  is  a  common  marshal 
to  cure  such  a  horse ;  and  if  not,  though  he  killed  your  horse 
by  his  medicines,  still  you  shall  not  have  an  action  against 
him  without  a  promise."  5  Soon  after  was  decided  the  great 
case  of  the  Marshal  of  the  King's  Bench.  6  This  was  debt 
on  a  statute  against  the  Marshal  for  an  escape.  The  pris- 

•42  E.  3,  11,  pi.  13  (1367).  In  43  E.  3,  33,  pi.  38,  it  was  alleged  that 
a,  "marshal"  had  undertaken  to  cure  a  horse,  but  had  proceeded  so 
negligently  that  the  horse  died.  The  defendant  was  driven  from  a  denial 
of  the  undertaking,  and  was  obliged  to  traverse  the  defect  of  care. 

•46  E.  3,  19,  pi.  19  (1371). 

8  41  Ass.  254,  pi.  12  (1366). 

4 11  H.  4,  45,  pi.  18  (1410). 

'19  H.  6,  49,  pi.  5  (1441). 

•33  H.  6,  1,  pi.  3  (1455). 


156  V.     COMMERCIAL    LAW 

oner  had  been  liberated  by  a  mob;  the  defendant  was  held 
liable.  The  reason  was  somewhat  differently  stated  by  two 
of  the  judges.  Danby,  J.  said  that  the  defendant  was  liable 
because  he  had  his  remedy  over.  Prisot,  C.  J.  put  the  re- 
covery on  the  ground  of  negligent  guard.  This  case  was 
frequently  cited  in  actions  against  carriers ;  but  not,  I  think, 
in  actions  against  ordinary  bailees  before  Southcote's  Case. 
The  earliest  statement  of  the  liability  of  a  common  carrier 
occurs,  I  think,  in  the  Doctor  and  Student  (1518),  where  it 
is  said  that,  "  if  a  common  carrier  go  by  the  ways  that  be 
dangerous  for  robbing,  or  drive  by  night,  or  in  other  incon- 
venient time,  and  be  robbed;  or  if  he  overcharge  a  horse 
whereby  he  falleth  into  the  water,  or  otherwise,  so  that  the 
stuff  is  hurt  or  impaired;  that  he  shall  stand  charged  for 
his  misdeameanor."  l  In  the  time  of  Elizabeth,  the  hire  paid 
to  the  carrier  was  alleged  as  the  reason  for  his  extraordinary 
liability.2  Finally,  in  Morse  v.  Slue3  the  court  "  agreed  the 
master  shall  not  answer  for  inevitable  damage,  nor  the  own- 
ers neither  without  special  undertaking:  when  it's  vis  cut 

1  Doctor  and  Student,  c.  38.  A  little  later  is  found  this  curious  case, 
Dall.  8  (1553).  "Note  by  Browne,  J.,  and  Portman,  J.,  as  clear  law; 
if  a  common  carrier  takes  a  pack  of  stuff  from  a  man  to  carry  it  to  D. 
and  while  in  a  common  inn  the  pack  is  taken  and  stolen,  the  owner  for 
this  shall  have  an  action  against  the  innkeeper  for  the  stuff  and  the 
carrier  shall  not;  for  they  are  not  the  goods  of  the  carrier,  nor  shall  he 
be  charged  with  them  inasmuch  as  he  was  by  law  compellable  to  carry 
them;  and  it  is  not  like  where  one  takes  goods  to  carry  generally,  for  if 
he  be  robbed,  it  shall  be  charged  to  the  carrier  for  his  general  taking,  to 
which  he  was  not  compellable,  and  so  he  shall  have  action  over  in  respect 
of  his  liability."  This  is  the  only  hint  at  a  less  liability  of  the  common 
carrier  than  of  the  private  carrier.  It  is  interesting  to  notice  that  it 
was  regarded  as  the  duty  of  the  innkeeper,  and  not  of  the  carrier,  to 
guard  the  goods  in  the  inn.  The  duty  is  imposed  by  law  for  a  purpose; 
that  purpose  is  served  by  putting  the  duty  on  the  innkeeper  here;  the 
law  need  not  require  a  double  service. 

"  It  was  held  by  all  the  Justices  in  the  Queen's  Bench,  that  if  a  man 
bail  certain  cloths  to  a  tailor  to  make  a  robe  of  them,  who  does  so,  and 
then  it  is  stolen  out  of  his  shop,  still  he  shall  be  accountable  for  it;  the 
same  is  law  of  a  carrier  who  has  anything  for  his  labor.  But  it  is 
otherwise  of  him  who  has  nothing  for  keeping  it,  but  keeps  it  of  his 
good  will."  1  Harv.  MS.  Rep.  3a.  To  the  same  effect  is  Woodlife's 
Case,  as  reported  in  1  Rolle's  Abridgment,  2,  as  follows:  "If  a  man 
deliver  goods  to  a  common  carrier  to  carry,  and  the  carrier  is  robbed  of 
them,  still  he  shall  be  charged  with  them,  because  he  had  hire  for  them, 
and  so  implicitly  took  upon  him  the  safe  delivery  of  the  goods;  and 
therefore  he  shall  answer  for  the  value  of  them  if  he  be  robbed." 

8  3  Keb.  135  (1672). 


54.     BE  ALE:   CARRIER'S    LIABILITY        157 

resisti  hon  potest;  but  for  robbery  the  usual  number  to 
guide  the  ship  must  be  increased  as  the  charge  increaseth." 

Thus  stood  the  law  of  carriers  and  of  others  in  a  common 
employment  down  to  the  decision  in  Coggs  v.  Bernard. 1  Two 
or  three  things  should  be  noted.  First,  carriers  are  on  the 
same  footing  with  many  other  persons  in  a  common  employ- 
ment, some  bailees  and  some  not,  but  all  subjected  to  a  similar 
liability,  depending  upon  their  common  employment ;  and 
there  is  no  evidence  in  the  case  of  these  persons  of  anything 
approaching  a  warranty  against  all  kinds  of  loss.  The  duty 
of  the  undertaker  was  to  guard  against  some  special  kind  of 
loss  only.  Thus  the  gaoler  warranted  against  a  breaking  of 
the  gaol,  but  not  against  fire;  the  smith  warranted  against 
pricking  the  horse;  the  innkeeper  against  theft,  but  not 
against  other  sorts  of  injury;2  the  carrier  against  theft  on 
the  road,  but  probably  not  against  theft  at  an  inn. 

Secondly.  This  is  put  on  different  grounds ;  but  all  may 
be  reduced  to  two.  On  the  one  hand,  it  may  be  conceived 
that  the  defendant  has  undertaken  to  perform  a  certain  act 
which  he  is  therefore  held  to  do :  either  because  the  law  forces 
him  into  the  undertaking  (as  a  hundred  is  forced  to  answer 
a  robbery),  or,  as  seems  to  have  been  in  Judge  Paston's 
mind,  because  there  was  some  consent  which  took  the  place 
of  a  covenant.  On  the  other  hand,  it  may  be  conceived  that 
the  defendant  has  so  invited  the  public  to  trust  him  that  cer- 
tain avoidable  mischances  should  be  charged  to  his  negligence ; 
he  ought  to  have  guarded  against  them.  "  The  duty  to 
guard  "  is  the  sheriff's  or  the  carrier's  or  the  innkeeper's ; 
he  is  bound  to  have  deputies  for  well  keeping  the  inn ;  if  a 
mob  breaks  in  he  shall  be  charged  for  his  negligent  guard; 
the  usual  number  must  be  increased  as  the  charge  increases ; 
if  he  go  by  the  ways  that  be  dangerous,  or  at  an  inconvenient 
time,  he  shall  stand  charged  for  his  misdemeanor.  It  is  to  be 
remembered  that  during  this  time  case  on  a  super  se  assumpslt 
had  this  same  doubtful  aspect ;  to  use  a  modern  phrase,  it  was 
even  harder  then  than  now  to  tell  whether  such  an  action 
sounded  in  contract  or  in  tort.  The  test  of  payment  for 

12  Ld.  Raym.  909  (1703). 
'Dawson  v.  Chamney,  5  Q.  B.  164. 


158  V-     COMMERCIAL    LAW 

services  is  a  loose  and  soon  abandoned  method  of  ascertaining 
whether  the  defendant  was  a  private  undertaker  or  in  a 
common  employment.1 

Another  thing  important  to  notice  is  that  all  precedents 
of  declarations  against  a  carrier  or  an  innkeeper  allege  negli- 
gence.2 It  is  of  course  impossible  to  prove  that  this  did  not 
become  a  mere  form  before  rather  than  after  Lord  Holt's 
time ;  but  it  is  on  the  whole  probable  that  it  originally  had  a 
necessary  place. 

We  have  now  brought  the  development  of  the  law  to  the 
great  case  of  Coggs  v.  Bernard.3  This  was  an  action  against 
a  gratuitous  carrier,  and  everything  said  by  the  court  about 
common  carriers  was  therefore  obiter.  Three  of  the  judges 
did,  however,  treat  the  matter  somewhat  elaborately.  Gould, 
J.  put  the  liability  squarely  on  the  ground  of  negligence: 
"  The  reason  of  the  action  is,  the  particular  trust  reposed 
in  the  defendant,  to  which  he  has  concurred  by  his  assump- 
tion, and  in  the  executing  which  he  has  miscarried  by  his 
neglect.  .  .  .  When  a  man  undertakes  specially  to  do  such 
a  thing,  it  is  not  hard  to  charge  him  for  his  neglect,  because 
he  had  the  goods  committed  to  his  custody  upon  those  terms." 
Powys,  J.  "  agreed  upon  the  neglect."  Powell,  J.  emphasized 
the  other  view,  that  "  the  gist  of  these  actions  is  the  under- 
taking. .  .  .  The  bailee  in  this  case  shall  answer  accidents, 
as  if  the  goods  are  stolen ;  but  not  such  accidents  and  casu- 
alties as  happen  by  the  act  of  God,  as  fire,  tempest,  &c.  So 
it  is  in  1  Jones,  179 ;  Palm.  548.  For  the  bailee  is  not  bound 
upon  any  undertaking  against  the  act  of  God."  Holt,  C.  J. 
seized  the  occasion  to  give  a  long  disquisition  upon  the  law  of 
bailments.  In  the  course  of  it  he  said  that  common  carriers 
are  bound  "  to  carry  goods  against  all  events  but  acts  of 
God  and  of  the  enemies  of  the  King.  For  though  the  force 
be  never  so  great,  as  if  an  irresistible  multitude  of  people 
should  rob  him,  nevertheless  he  is  chargeable."  And  the 
reason  is,  that  otherwise  they  "  might  have  an  opportunity 

1Woodlife's  Case,  Moore,  462,   makes  that   clear,   I   think.     Though 
both  are  paid,  a  distinction  is  drawn  between  factor  and  carrier. 
2  Holmes,  Common  Law,  200. 
•2  Ld.  Raym.  909  (1703). 


54.     BEALE:  CARRIER'S    LIABILITY        159 

of  undoing  all  persons  that  had  any  dealings  with  them,  by 
combining  with  thieves,"  &c. 

Was  this  the  starting  point  of  the  modern  law  of  carriers  ? 
It  seems  to  be  a  departure  from  the  previous  law  as  I  have 
stated  it,  but  how  far  departing  depends  upon  what  was  meant 
by  act  of  God.  Powell  appears  to  include  accidental  fire,  and 
cites  a  case  where  the  death  by  disease  of  a  horse  bailed  was 
held  an  excuse.  Lord  Holt  does  not  explain  the  term ;  but 
his  reasoning  is  directed  entirely  to  loss  by  robbery.  That 
"  act  of  God  "  did  not  mean  the  same  thing  to  him  and  to  us 
is  made  probable  by  the  language  of  Sir  William  Jones,1 
whose  work  on  Bailments  follows  Lord  Holt's  suggestions 
closely.  After  stating  Lord  Holt's  rule  as  to  common  car- 
riers, he  adds  that  the  carrier  "  is  regularly  answerable  for 
neglect,  but  not,  regularly,  for  damage  occasioned  by  the 
attacks  of  ruffians,  any  more  than  for  hostile  violence  or  un- 
avoidable misfortune,"  but  that  policy  makes  it  "  necessary 
to  except  from  this  rule  the  case  of  robbery."  As  to  act  of 
God,  "  it  might  be  more  proper,  as  well  as  more  decent,  to 
substitute  in  its  place  inevitable  accident,"  since  that  would  be 
a  more  "  popular  and  perspicuous  "  term.  He  cites  the  case 
of  Dale  v.  Hall,2  which  appeared  to  have  held  the  carrier 
liable  though  not  negligent ;  but  explains  that  the  true  reason 
was  not  mentioned  by  the  reporter,  for  there  was  negligence. 
Much  the  same  statement  of  the  law  of  carriers  is  made  by 
Buller  in  his  Nisi  Prius.3  It  would  seem,  then,  that  the 
change  in  the  law  which  we  should  ascribe  to  Lord  Holt  was 
one  rather  in  the  form  of  statement  than  in  substance;  but 
the  new  form  naturally  led,  in  the  fulness  of  time,  to  change 
in  substance. 

In  the  fulness  of  time  came  Lord  Mansfield,  and  the  change 
in  substance  was  made.  In  Forward  v.  Pittard,4  we  have 
squarely  presented  for  the  first  time  a  loss  of  goods  by  the 
carrier  by  pure  accident  absolutely  without  negligence,  — 
by  an  accidental  fire  for  which  the  carrier  was  not  in  any  way 
responsible.  Counsel  for  the  plaintiff  relied  on  the  language 

1  Bailments,  pp.  103  et  sea. 

2  1  Wils.  281. 

8  Page  69  (1771). 
41  T.  R.  27  (1785). 


160  V.     COMMERCIAL    LAW 

of  Lord  Holt.  Borough,  for  the  defendant,  presented  a 
masterly  argument,  in  which  the  precedents  were  examined ; 
the  gist  of  his  contention  was,  that  a  carrier  should  be  held 
only  for  his  own  default.  Lord  Mansfield,  unmoved  by  this 
flood  of  learning,  held  the  carrier  liable ;  and  he  uttered  these 
portentous  words :  "  A  carrier  is  in  the  nature  of  an  insurer." 
From  that  time  a  carrier  has  been  an  insurer  without  the 
rights  of  an  insurer. 


55.     EARLY    FORMS    OF    CORPORATENESS  1 
BY  CECIL  THOMAS 


THE  Italians  conceived  the  corporation  to  be  a  fictitious 
person.  Now  this  was  a  refined  and  artificial  doctrine, 
and  therefore  a  late  one.  Before  it  spread  over  England, 
conducted  through  the  channels  of  Canonism,  natural  corpo- 
rateness  had  already  appeared  in  certain  forms.  With  re- 
gard to  this  natural  growth,  there  are  many  questions  which, 
if  we  cannot  answer,  we  ought  at  least  to  ask.  What  was  the 
earliest  form  of  corporateness  here?  Was  it  popular  with 
Englishmen?  Upon  what  principle  and  by  whose  authority 
was  corporateness  granted  to  some  groups  of  persons  and 
withheld  from  others?  How  far  did  the  early  form  differ 
from  the  final,  and  by  what  influence  was  that  difference 
gradually  removed? 

The  early  forms  of  corporateness  are  two-fold  —  the  ec- 
clesiastical and  the  lay.  Of  these  the  ecclesiastical  body  was 
the  more  abstract,  foreign,  and  fictitious:  the  lay  body  was 
the  more  concrete,  natural,  and  spontaneous.  The  spiritual 
bodies  were  dependent  upon  Canonist  Law  and  upon  the 
authorised  version  as  ordained  by  the  Pope.  Their  want  of 
a  natural  membership  and  a  natural  existence,  and  their 
inability  to  sin  and  be  damned,  left  them  a  mere  name.  On 
the  other  hand,  the  temporal  bodies  —  and  especially  ^  the 

1This  essay  originally  formed  Chapter  IX,  pp.  128-149,  of  the  Yorke 
Prize  Essay  (Cambridge  University)  for  1902,  "The  General  Principles 
of  the  Law  of  Corporations,"  1905  (Cambridge,  University  Press),  and 
has  been  revised  by  the  author  for  this  Collection. 

3  B.  A.,  1900,  LL.  B.,  1901,  M.  A.,  1904,  LL.  M.,  1907,  Trinity  College, 
Cambridge;  Barrister  of  the  Inner  Temple,  1902. 

Other  Publications:  "Collective  Ownership  otherwise  than  by  Corpo- 
rations or  by  means  of  the  Trust  "  (being  the  Yorke  Prize  Essay  for  the 
year  1905),  1907  (Cambridge,  University  Press),  of  which  compare 
Chapter  VIII  on  "Communities  as  Owners." 


162  V.     COMMERCIAL    LAW 

early  forms  of  municipal  association  —  were  vigorous,  inde- 
pendent, and  full  of  a  corporate  spirit;  they  soon  showed 
themselves  fit  for  that  autonomy  which  is  claimed  to  be  native 
in  Englishmen. 

In  a  previous  chapter  on  the  corporation  sole  some  slight 
mention  has  been  made  of  the  beginnings  of  corporateness  in 
the  Church.  It  is  now  proposed  to  consider  the  beginnings 
of  municipal  corporateness.1 

When  did  the  borough  become  a  corporation  ? 

Presumably  we  should  reply :  "  When  the  lawyers  con- 
ferred upon  it  an  abstract  juristic  personality."  That  would 
be  to  answer  one  question  by  suggesting  another. 

If  a  royal  charter  necessarily  implied  incorporation,  then 
there  were  municipal  corporations  in  the  time  of  William  the 
Conqueror.  Among  the  privileges  "  incident  "  to  the  perfect 
corporation  are  the  right  to  use  a  common  seal,  to  make 
by-laws,  to  plead  in  Courts  of  law,  and  the  right  to  hold 
property  in  succession.  If  the  existence  of  these  privileges 
necessarily  implied  corporateness,  then  there  were  many 
municipal  corporations  within  a  few  centuries  of  the  Con- 
quest. But  these  privileges  were  apparently  held  alike  by 
boroughs  which  had,  and  boroughs  which  had  not,  a  royal 
charter. 

The  question  is  one  to  which  Merewether  and  Stephens 
paid  special  attention.  Their  laborious  History  of  Boroughs, 
published  in  1835,  was  designed  to  throw  light  on  what  was 
then  the  engrossing  subject  of  municipal  reform.  The  sixth 
of  the  eleven  inferences  which  they  claim  to  have  established 
declared  that  the  burghal  body  got  its  first  charter  of  munic- 
ipal incorporation  in  the  reign  of  Henry  VI.2  Their  re- 
search fixes  the  first  date  at  which  certain  magic  words  are 
found  in  use  as  a  formula  of  incorporation.  Being  thus 
concerned  with  documentary  evidence,  they  nowhere  admit 
that  the  essence  of  municipal  corporateness  is  to  be  found 
far  earlier.  Both  their  facts  and  their  inferences  have  been 
vigorously  attacked,  charters  being  cited  which  suggest 

'Chapter  IV  of  this  Essay.     See   Professor  Maitland's   articles  in 
L.  Q.  R.,  XVI,  p.  335,  XVII,  p.  131. 
2  Hist,  of  Boroughs,  Introd.  p.  v. 


55.     CARR:  CORPORATENESS  163 

formal  incorporation  and  a  kind  of  abstract  personality  con- 
ferred on  towns  a  hundred  years  before.  Dr.  Gross  observes 
that  municipal  corporateness  existed  as  early  as  the  reign 
of  Edward  1. 1 

Such  differences  of  opinion  illustrate  the  difficulty  of 
searching  for  the  germ  of  true  corporateness  in  early  insti- 
tutions. Much  caution  is  needed  on  a  road  where  milestones 
are  irregular  and  landmarks  few.  Stages  in  the  development 
of  gild  and  borough  can  be  definitely  dated  (if  at  all)  only 
when  all  extant  charters  have  been  disclosed,  analysed,  and 
classified.  The  various  forms  of  apparent  corporateness  are 
neither  clearly  marked  off  from  one  another,  nor  capable  of 
classification  according  to  modern  standards.  Such  differ- 
ences as  existed  in  fact  between  these  various  forms  are 
ignored  and  confused  by  the  vocabulary.  If  twenty  men  hold 
land  (a)  jointly,  (b)  severally,  or  (c)  as  a  true  corporation, 
these  are  three  distinct  conceptions :  but  all  three  are  covered 
in  early  times  by  the  one  word  communitas.2  Inferences 
based  upon  names  are  therefore  dangerous.  But  the  ambi- 
guity of  words  does  not  rest  there.  Even  in  modern  English 
the  word  corporation  is  used  with  such  a  loose  and  extended 
meaning  that  it  is  necessary  to  define  the  sense,  in  which  the 
word  will  be  used  in  this  chapter.  Some  writers  have  applied 
the  word  to  any  association  which  combines  communal  owner- 
ship and  interests  with  the  slightest  degree  of  autonomy  and 
representation.  3  Thus  Sir  Henry  Maine  says,  "  The  family 
is  a  corporation."  4  Another  writer  observes  that  "  as  cities 
and  built  towns  have  a  more  compact  municipal  life  and 

1  Gild  Merchant,  I,  93:    Bibliography  of  Municipal  History,  Introd. 
p.  xxvii.     See  Stubbs,  Const.  History,  III,  p.   586,  and,  in  the  French 
edition  thereof,  by  Prof.   Petit-Dutaillis,  the  Editor's  Appendix  VIII: 
Maitland,  Township  and  Borough,  pp.  18-20. 

2  See  Township  and  Borough,  Maitland,  p.  12.     See  also  Pollock  and 
Maitland,  History  of  English  Law,  I,  pp.  494-5.     See,  generally,  Mait- 
land's  Introduction  to  Cambridge  Borough  Charters. 

See  Gross,  Gild  Merchant,  I,  p.  93,  n.  3.  Communitas  perpetua,  com- 
munitas  perpetua  et  corporata,  corpus  corporatum  et  politicum,  are  ex- 
pressions used  in  the  charters. 

8  These  privileges  are  given  by  extant  fourteenth  century  charters. 

4 Ancient  Law,  ed.  6,  p.  184,  where  it  is  said  that  the  family  was  a 
corporation  and  the  patriarch  its  public  officer.  See  Maitland,  Town- 
ship and  Borough,  p.  21.  In  its  most  developed  form  the  family  was 
nothing  more  than  a  "  herrschaftliche  Verband,"  see  Gierke,  Genossens- 
tchaftsrecht,  I,  p.  90.  See  Tacitus,  Germ.  c.  20. 


164  V.     COMMERCIAL    LAW 

action  than  other  places,  the  notion  of  corporations  (in  the 
political  sense)  is  apt  to  be  exclusively  attached  to  them. 
But  this  is  quite  incorrect.  Every  place  where  a  court  leet 
has  been  held  is,  or  has  been,  really  a  corporation.  Hun- 
dreds are  corporations.  .  .  .  counties  are  also  corporations. 
So  also  are  parishes  and  the  true  '  Wards  '  of  London."  l 
It  is  proposed  to  use  the  word  corporation  now  in  the  strict 
sense  of  a  body  possessing  an  ideal  personality  which  is  dis- 
tinguished from  the  collective  personalities  of  the  members 
which  compose  the  body.  In  this  sense  of  the  word,  the 
family,  the  county,  and  the  hundred  never  became  corpora- 
tions. 

While  examining  the  early  forms  of  the  borough,  one 
becomes  aware  of  other  groups  of  men  which  might  have 
attained,  but  which  failed  to  attain,  incorporation. 

In  the  village,  for  instance,  there  existed,  even  before 
Domesday,  a  kind  of  communal  ownership.  Whether  the 
land  was  first  owned  by  the  community,  or  —  which  seems 
more  probable  —  first  owned  by  the  individual,  we  cannot 
pause  to  consider. 2  What  was  the  exact  nature  of  that  com- 
munal ownership  we  cannot  hope  to  decide.  All  villages 
were  not  alike,  and  if  they  were  alike  they  would  probably 
resist  any  attempt  to  thrust  them  into  the  classes  approved 
by  modern  ideas. 

Corporateness  is  on  no  account  to  be  presumed  from  com- 
munal ownership.  True  corporateness  entails  a  polish  and 
refinement  not  to  be  looked  for  in  the  early  stages  of  village 
life.  In  the  words  of  Professor  Maitland,  "  if  we  introduce 
the  persona  ficta  too  soon  we  shall  be  doing  worse  than  if 
we  armed  Hengest  and  Horsa  with  machine-guns  or  pictured 
the  Venerable  Bede  correcting  proofs  for  the  press."  3 

Yet  although  corporateness  is  not  to  be  presumed  where 
community  is  found,  the  existence  of  communal  ownership 

1  Unpublished  paper  by  Toulmin  Smith,  inserted  in  Miss  Toulmin 
Smith's  Introduction  to  Early  English  Text  Society's  volume  on  English 
Gilds. 


2  See  the  summary  _of  the  controversy  contained  in  Sir  F.  Pollock's 

ies),  Appendix  C;    and  Professor  Petit- 
Origines   du  Manoir   in   his   edition    of 


Land  Laws  (English  Citizen  Series),  Appendix  C;    and  Professor  Petit- 
Dutaillis'   Appendix   I    on   Les   Origines   du  Man 


Stubbs,  I,  p.  765. 

8  Domesday  Book  and  Beyond,  p.  356. 


55.     CARR:  CORPORATENESS  165 

offers  some  prospect  that  corporateness  may  appear  later. 
But  that  is  just  what  does  not  happen  in  the  village.  The 
village  is  never  incorporated.  At  first  it  is  too  small,  too 
unimportant,  too  ill-organised.  Its  geographical  limits,  its 
agricultural  system,  and  the  natural  feeling  of  neighbourli- 
ness  tend  to  make  a  unit  of  its  inhabitants ;  but  the  group 
of  persons  never  becomes  a  true  group-person.  At  a  later 
date  the  village  fails  to  attain  corporateness  for  another 
reason.  In  England,  as  in  Germany,  the  "  kings  became 
powerful  and  the  hereditary  nobles  disappeared.  There  was 
taxation.  The  country  was  plotted  out  according  to  some 
rude  scheme  to  provide  the  king  with  meat  and  cheese  and 
ale.  Then  came  bishops  and  priests  with  the  suggestion  that 
he  should  devote  his  revenues  to  the  service  of  God,  and  with 
forms  of  conveyance  which  made  him  speak  as  if  the  whole 
land  were  his  to  give  away."  1  And  so,  when  the  king  has 
learnt  that  the  land  is  his  land,  and  is  a  source  of  possible 
profit  to  him,  the  villages  throughout  the  country  begin  to 
fall  under  the  dominion  of  lords.  Henceforward  the  village 
develops  not  so  much  of  itself  as  under  the  lord  —  and  per- 
haps in  spite  of  him.  He  interposes  himself  between  it  and 
all  those  external  forces  which  might  otherwise  have  ham- 
mered it  into  corporate  shape. 

A  similar  result  occurred  in  the  case  of  the  manor.  The 
manor  was  an  economic,  administrative,  and  judicial  unit, 
but,  as  such,  it  failed  in  general  to  become  a  group-person, 
because  there  was  one  person  (the  lord)  who  could  always 
represent  the  group  of  persons  contained  in  the  manor. 
What  the  manor  was  is  not  precisely  known.  It  was  certainly 
a  financial  unit  in  the  assessment  of  Domesday  and  long 
afterwards.  Taxes  were  more  conveniently  and  speedily 
collected  in  large  round  sums  from  rich  landlords  than  in 
small  sums  from  scattered  and  possibly  insolvent  tenants. 
Consequently  the  landlord  was  made  to  stand  between  the 
king  and  the  group  of  manorial  taxpayers  who  might  other- 
wise have  been  ultimately  formed  into  a. corporate  organisa- 
tion. There  was  never  in  the  village  or  in  the  manor  that 

1  Domesday  Book  and  Beyond,  pp.  351-2:  and  see  Bookland  and  the 
Landbook,  pp.  226,  etc.  in  the  same  vol. 


166  V.     COMMERCIAL    LAW 


keen  sense  of  common  property,  of  profitable  common  assets, 
of  common  revenues  and  privileges,  which  so  largely  assisted 
the  borough  to  realise  corporateness. 

The  county  also  and  the  hundred  failed  to  become  generally 
incorporated.  They  lacked  the  importance,  the  spontaneity, 
and  the  unity  of  the  borough :  they  had  no  such  opportunities 
or  desire  for  organising  a  natural  self-government :  they  had 
no  such  privileges  to  strive  for  and  to  maintain. 

Both  county  and  hundred  were  governmental  districts : l 
each  had  a  court,  and  apparently  each  had  had  communal 
property.2  Some  counties  even  possessed  such  charters  as 
were  given  to  early  boroughs.  Devon  and  Cornwall  received 
from  King  John  grants  of  liberties  which  were  in  form  not 
unlike  the  grants  made  to  towns.3  They  were  treated  as  a 
communitas,  a  collective  body  of  men  whom  to  name  indi- 
vidually would  be  impossible  as  well  as  wearisome.  A  grant 
of  liberties  had  been  made  by  John  in  similar  form  to  all  the 
free  men  of  England  and  their  heirs.  But  the  Magna  Carta 
no  more  made  England  a  corporation  than  the  charters  to 
Devon  and  Cornwall  incorporated  the  men  of  those  counties. 
The  western  shire  may  by  its  position  and  history  have  pos- 
sessed and  preserved  an  unusual  degree  of  exclusive  unity. 
There  seems  to  have  been  a  common  seal  belonging  to  the 
county  of  Devon.4  The  county  also  was  capable  of  being 
indicted,  although  it  was  doubtful  how  damages  could  be 
recovered  from  it. 5  "  Among  the  several  qualities  which 
belong  to  corporations,"  says  Lord  Kenyon,  C.  J.,  in  1788, 
"  one  is,  that  they  may  sue  and  be  sued :  that  puts  them, 
then,  in  contradistinction  to  other  persons.  I  do  not  say 
that  the  inhabitants  of  a  county  or  a  hundred  'may  not  be 
incorporated  to  some  purposes,  as  if  the  king  were  to  grant 

1  See  Pollock  and  Maitland,  History  of  English  Law,  I,  pp.  534,  556. 
For  the  ordinance  of  the  holding  of  the  Hundred  see  Kemble,  Saxons  in 
England,  I,  pp.  515-6. 

2  See  Pollock  and  Maitland,  ib.  I,  pp.  535,  557-8.    And  see  Domesday 
Book  and  Beyond,  Maitland,  p.  355,  n.  2. 

8  See  Pollock  and  Maitland,  History  of  English  Law,  I,  pp.  535,  673-4. 

4  See  ib.  I,  535,  n.  1. 

6  See  Pasch.  17  Edw.  II.  f.  539  (Maynard).  The  county  is  still  indict- 
able as  such.  Its  lands  are  vested  in  a  county  official,  the  clerk  of  the 
peace,  who  is  by  27  Eliz.  c.  13,  a  corporation  sole.  See  21  &  22  Vic.  92. 
See  Pollock  and  Maitland,  History  of  English  Law,  I,  535,  n.  3. 


55.    CARR:  CORPORATENESS  167 

lands  to  them,  rendering  rent,  like  the  grant  to  the  good  men 
of  Islington  town.  But  where  an  action  is  brought  against 
a  corporation  for  damages,  those  damages  are  not  to  be 
recovered  against  the  corporators  in  their  individual  capac- 
ity, but  out  of  their  corporate  estate :  but  if  the  county  is  to 
be  considered  as  a  corporation,  there  is  no  corporate  fund 
out  of  which  satisfaction  is  to  be  made."  1  The  county  there- 
fore, though  an  organised  collective  body  with  group  lia- 
bility, failed  to  obtain  a  corporate  existence  apart  from  that 
of  the  several  inhabitants. 

That  appearance  of  corporateness  which  grew  up  in  the 
English  boroughs  was  a  native  English  product.  However 
Italian  may  have  been  the  principles  which  came  to  govern 
the  corporation  at  the  end  of  the  Middle  Ages,  it  is  doubtful 
whether  there  was  anything  Roman  about  the  earliest  Eng- 
lish municipalities,  except  perhaps,  here  and  there,  the  forti- 
fications. The  connection  with  Rome  which  was  afterwards 
so  well  maintained  in  the  ecclesiastical  houses,  had  been  broken 
in  the  towns.  The  thread  of  Roman  influence  in  England 
had  been  snapped  when  the  Romans  retired  and  left  the  coun- 
try to  relapse  into  barbarism. 

From  that  barbarism  and  lawlessness  there  emerged  at 
length  the  true  germ  of  municipal  life.  It  was  the  burh,  the 
strong  place  upon  a  hill,  the  rallying-point  and  shelter  for 
the  country-side.  At  first  it  was  neither  large,  nor  populous, 
nor  well-built.  It  was  just  such  a  stockade  as  any  man 
might  make  wherewith  to  enclose  and  protect  his  house.  But 
it  protected  a  group;  and  it  was  the  interest  and  duty  of 
the  group  to  establish  and  maintain  the  defences.  Not 
only  must  each  man  help  to  build  and  repair  the  walls,  but 
he  must  also  help  to  maintain  some  kind  of  rough  dis- 
cipline within  them.  There  must  be  no  burh-bryce,2  no 
breach  of  the  burh  or  borough. 3  The  burh  is  sacro- 

1  Russell  v.  the  Men  of  Devon,  2  T.  R.  at  p.  672. 

2  See  Domesday  Book  and  Beyond,  Maitland,  p.  184. 

8  No  distinction  is  here  made  between  the  words  "burh,"  "bury," 
"burg"  and  "borough."  "The  word  'borough'  signifies  security  with 
the  collateral  idea  of  defence.  It  is  no  other  than  the  word  'bury.* 
The  word  'bury'  signifies  a  fort  or  stronghold,  and  is  to  the  English 
language  what  Arx  was  to  the  Latin,  or  Polis  (in  its  archaic  use  equiva- 
lent to  &Kpov  &Kp6iro\is )  was  to  the  Greek."  Bath  Ancient  and  Modern, 
Prof.  Earle,  pp.  84  and  6-7. 


168  V.     COMMERCIAL    LAW 

sanct.1      Moreover,  the  greater  the  burh,  the  more  sacred 
the  peace  therein.2 

Then,  because  there  was  peace  in  the  borough,  men  carried 
on  their  buying  and  selling  therein.  There  were  witnesses: 
there  were  all  the  materials  for  doing  right  between  honest 
men  and  thieves,  and  generally  for  hearing  the  case  of  any 
who  had  a  grievance.  If  it  was  well  to  have  witnesses  for 
the  sale  of  cattle  and  goods,  it  was  not  well  to  have  sales 
of  cattle  and  goods  where  there  were  no  witnesses.  Conse- 
quently men  sought  the  site  of  the  burh  because  it  was  a 
military  and  a  marketing  centre,  a  meeting-place,  and  a  place 
for  obtaining  justice.3 

The  military  needs  of  the  country-side  in  time  became  less 
pressing,  but  otherwise  the  burh  or  borough  grew  in  impor- 
tance. After  the  Norman  Conquest  the  town  was  not  pro- 
tected by  a  common  fort,  but  was  dominated  by  a  castle.4 
The  institution  of  these  castles  was  typical  of  Norman  rule. 
The  king  assumed  a  new  position  as  the  overlord  of  each  of 
his  subjects:  henceforward  a  universal  "king's  peace"  was 
to  be  substituted  for  the  various  local  "  peaces." 

But  in  spite  of  the  pressure  of  Norman  rule  the  rise  of 
the  boroughs  was  not  for  long  impeded.  Open  rebellion  had 
been  powerless  to  regain  England  for  the  English,  but  in 
the  towns  the  innate  Saxon  spirit  of  self-government  asserted 
itself.  Commerce  grew:  population  increased:  the  position 
of  the  old  burghal  shire-towns  was  strengthened.  Their 
importance  began,  however,  to  be  challenged  by  upstarts, 
enfranchised  manors,  and  other  vills  which  enjoyed  religious 
or  commercial  advantages.  Still  it  was  possible  to  distin- 
guish the  old  borough  from  its  newer  rivals  by  a  test  which 
was  not  theoretic,  but  practical.  It  was  not  a  difference  aris- 
ing out  of  the  presence  or  absence  of  royal  gifts  of  franchise : 
it  was  a  difference  arising  out  of  facts  within  men's  knowl- 

*A  reminiscence  of  the  borough-peace  perhaps  survives  in  the  word 
"burglary"  and  in  its  early  definitions. 

2  The  greatest  of  all  peaces  is  the  king's  peace,  which  the  Justices  of 
the  Peace  locally  maintain.  See  1  Edw.  III.  st.  2,  c.  16. 

8  See  Township  and  Borough,  Maitland,  p.  211. 

4  As  for  instance  at  Cambridge;  two  castles  were  found  necessary  to 
dominate  Durham.  See  Freeman's  William  the  Conqueror,  p.  117. 


55.     CARR:  CORPORATENESS  169 

edge.  Local  representation  was  required  when  the  judges 
were  sent  round  the  country  on  circuit.  The  vill  sent  a 
reeve  and  four  men  to  attend  the  justices  in  eyre :  the  borough 
sent  twelve  men.  There  was  an  unmistakable  distinction  of 
fact.1  A  town  either  did,  or  did  not,  send  twelve  men.  The 
distinction  was  perpetuated  in  two  ways.  In  the  first  place 
it  was  important  for  the  governors  of  the  county.  By  the 
rough  and  ready  methods  of  direct  taxation  in  the  twelfth 
century,  "  cities  and  boroughs " 2  were  charged  with  the 
payment  of  certain  gifts  and  "  aids."  The  Exchequer  was 
not  likely  to  allow  uncertainty  to  exist  with  regard  to  the 
towns  which  owed  the  tax.  Secondly,  the  distinction  was  an 
important  one  for  the  governed,  when  the  parliamentary 
system  was  created  in  the  time  of  Edward  I.  For  the  first 
great  representative  council 3  writs  were  directed  to  the 
sheriffs  of  certain  counties  and  to  certain  boroughs  and  cities, 
commanding  the  recipient  to  choose  knights,  burgesses,  and 
citizens  to  attend.4  The  borough  contributed  its  two  bur- 
gesses if  it  had  previously  sent  its  twelve  men  to  attend  the 
justices  in  eyre.  There  was  thus  less  doubt  whether  a  town 
was  or  was  not  a  borough. 

The  communalism  of  the  early  village  was  not  reproduced 
in  the  early  borough.  This  was  not  because  there  was  lack- 
ing among  burgesses  the  identity  of  agricultural  interest 
which  existed  amongst  villagers.  On  the  contrary  there  was 
a  strong  pastoral  element  in  the  early  borough.  But  the 
burgesses,  when  once  they  ceased  to  form  units  in  the  scheme 
of  national  and  local  defence  were  not  knit  together  by  reason 
of  land  tenure.  Trade  and  the  borough  organisation  upset 
the  old  agrarian  scheme.  The  borough  had  to  fight  its  own 
battle  against  trade  rivals  at  a  time  when  commercial  success 
was  a  matter  of  trade  monopoly.  It  had  to  struggle  for  itself 

1  Probably  the  distinction  of  the  borough  is  to  be  traced  still  earlier. 

e  the  laws  of  Edgar  (959-975  A.  D.),  Supp.,  cc.  3,  4,  5,  and  6.  Ethelred 
(978-1016)  11,  c.  6.  Canute  (1016-1035)  Secular  Dooms  c.  18.  See 
Stubbs,  Select  Charters,  pp.  70-2. 

'The  city  cannot  be  marked  oif  from  other  towns  on  any  very  clear 
mnciple.  Civitas  is  often  —  but  not  necessarily  —  the  cathedral  town. 
~  ie  Pollock  and  Maitland,  History  of  English  Law,  i.  p.  634. 

8  Jan.  20,  1265. 

*See  Stubbs,  Const.  Hist.  v.  2,  pp.  92,  221:  Todd,  Parl.  Govt.  (ed. 
ralpole),  (i.  23-4), 


170  V.     COMMERCIAL    LAW 

to  obtain  its  monopoly,  to  win  its  charter,  to  gain  its  right 
to  manage  itself  and  farm  its  own  tolls.  It  was  these  common 
aspirations  and  interests  which  bound  the  burgesses  together. 
They  were  not  united  as  were  the  villagers,  by  reason  of  their 
being  tenants  of  one  lord. 

The  burgesses  indeed  were  not  tenants  of  one  lord.  Their 
tenure  was  heterogeneous.1  Homogeneity  vanished  before  the 
new  influences  of  burghal  life.2  And  because  there  was  less 
homogeneity  in  burghal  tenure,  the  lord  had  the  less  power 
in  the  borough.  The  burgesses  dealt  with  the  king  direct : 
they  excluded  the  mesne  lords.  The  king  exacted  his  tolls 
and  taxes  from  the  townsmen,  and  they  tried  to  win  from  him 
the  recognition  of  their  rights  of  meeting  and  market.  They 
strove  to  eliminate  the  middleman.  They  offered  a  fixed 
round  sum  as  the  farm  of  their  borough,  and  desired  to  assess 
for  themselves  in  their  own  manner  the  relative  liabilities  of 
burgesses  to  make  up  that  sum.  Thus  the  payment  of  the 
firma  burgi  by  the  community  was  the  beginning  of  municipal 
self-government,  and  a  step  —  though  not  the  final  step  — 
in  the  direction  of  corporateness. 

Some  important  results  follow.  Burgesses  did  not  hold 
land  as  an  individual  held  it.  They  broke  loose  from  the 
feudal  system.  They  evaded,  when  they  could,  the  discharge 
of  feudal  dues.  The  lord  of  the  land  lost  his  near  interest  in 
it :  he  lost  his  escheat :  he  became  remote :  he  sank  back  into 
the  position  of  "  the  man  with  a  rent-charge."  3  The  men 
of  the  borough  contended  stoutly  for  the  authority  of  the 
burghal  courts,  and  for  the  validity  of  alleged  burghal  cus- 
toms. One  such  custom  concerning  burgage  tenure  4  as  up- 
held in  the  borough  court  permitted  men  to  bequeath  their 
houses  by  will,  as  "  quasi-chattels."  5 

xSee  Domesday  Book  and  Beyond,  Maitland,  p.  179. 

2  See  Township  and  Borough,  Maitland,  p.  45;  Domesday  Book  and 
Beyond,  p.  203. 

8  Township  and  Borough,  p.  71. 

4  For  burgage  tenure  see  Domesday  Book  and  Beyond,  p.  196:  Town- 
ship and  Borough,  p.  71 :  Pollock  and  Maitland,  History  of  English  Law, 
I,  295-6,  II,  330. 

6 The  borough  Courts  successfully  contested  the  jurisdiction  of  the 
ecclesiastical  judges  in  the  matter  of  these  bequests.  See  O.  W.  Holmes, 
Law  Quarterly  Review,  I,  p.  165. 

The  borough  Courts  claimed  to  dispense  with  the  foreign  procedure 


55.     CARR:  CORPORATENESS  171 

The  borough  had  considerable  advantages  to  lose.  These 
advantages  were  intimately  concerned  with  the  prosperity  of 
the  community,  and  so  were  highly  prized.  They  were  for 
the  most  part  of  spontaneous  growth,  not  acquired  by  formal 
grant.  The  king  had  not  yet  formulated  in  full  his  royal 
right  to  confer  upon,  and  withhold  from,  groups  of  towns- 
men various  privileges  which  might  be  made  a  source  of  profit 
to  the  royal  purse.  Hitherto  these  privileges  had  been 
claimed  by  the  burghers  without  offence  and  exercised  without 
restriction.1  But  the  day  came  when  the  kingly  prerogative 
was  asserted  in  order  to  uphold  the  kingly  dignity  and  fill 
the  kingly  pocket.  It  was  to  the  interest  of  the  Crown  that 
liberty  enjoyed  by  the  subject  should  be  considered  a  diminu- 
tion of  the  power  enjoyed  by  the  king;  consequently  it  was 
a  gracious  concession  on  the  part  of  the  king,  which  the  sub- 
ject should  acknowledge  with  gratitude  and  even  payment. 
However  strong  the  natural  growth  of  these  burghal  privi- 
leges, the  borough  was  not  safe  in  its  possession  of  them  until 
they  were  recognised  and  confirmed  by  the  authority  of  the 
Crown.  Natural  prescriptive  right  had  to  be  supplemented 
or  supplanted  by  royal  authorisation.2  The  burgesses  wished 

of  wager  of  battle  (Social  England,  I,  p.  363),  but  were  not  at  first 
allowed  the  method  of  trial  by  jury.  See  Pollock  and  Maitland,  History 
of  English  Law,  I,  p.  643.  , 

1  For  these  burghal  privileges  see  Pollock  and  Maitland,  ib.  i.  pp.  643, 
etc.  They  are  there  enumerated  as  (i)  Jurisdictional,  (ii)  Tenurial,  (iii) 
Mercantile,  (iv)  the  Firma  Burgi,  (v)  Property  of  the  Borough,  (vi) 
Election  of  Officers  and  Government  of  the  Borough,  (vii)  By-laws  and 
Self-Government,  (viii)  Self -taxing  Powers,  (ix)  Gild  Merchant.  The 
privilege  of  minting  money  was  early  resumed  exclusively  into  royal 
hands. 

8  The  following  is  a  specimen  of  such  royal  confirmations.  It  is  given 
by  Henry  II.  to  Winchester: 

"Praecipio  quod  cives  mei  Wintoniensis  de  gilda  mercatorum  cum 
omnibus  rebus  suis  sint  quieti  de  omni  thelonio,  passagio  et  consuetu- 
dine;  et  nullus  super  eos  disturbet  neque  injuriam  neque  contumeliam 
eis  faciat  super  forisfacturam  meam  .  .  ."  Stubbs,  Select  Charters,  p. 
158.  This  charter  appears  to  be  common  form.  The  citizens  of  Bath 
are  by  their  charter  given  the  advantages  held  by  "  cives  nostri  Winton 
de  gilda  eorurn  mercatoria":  Guildford  also  "prout  cives  civitatis  Win- 
tonie  et  aliarum  civitatum  et  burgorum":  similarly  Petersfield  and 
Wilton.  See  Gross,  .11.  351,  375,  387,  390. 

It  will  have  been  observed  that  this  Winchester  grant  is  not  made  to 
the  citizens,  not  to  the  "  communitas "  or  "  communa,"  but  to  those 
citizens  who  comprise  the  "gilda  mercatoria."  The  earliest  grants  of 
such  royal  confirmation,  or  —  to  use  the  word  in  its  vaguest  sense  —  of 
incorporation,  are  to  gilds  as  well  as  boroughs.  The  relation  of  gild  to 


172  F.     COMMERCIAL    LAW 

to  be  secure  in  their  title  to  the  franchises  which  they  claimed. 
There  were  kings  like  Richard  I  who  were  perfectly  willing, 
for  a  consideration,  to  meet  the  wishes  of  the  burgesses.1 

Every  instance  of  a  charter  granted  to  a  town  was  an 
opportunity  for  the  Crown  to  define,  to  amplify,  or  to  com- 
plicate that  formula  in  which  earlier  royal  concessions  to 
towns  had  been  made.  Every  time  the  king  or  the  royal 
advisers  framed  a  charter,  he  or  they  had  to  consider  what 
he  was  conceding  and  to  whom.  Was  he  making  a  grant 
merely  to  the  citizens  of  a  town,  or  to  them  and  their  heirs, 
or  to  them  and  their  successors?  Who  was  to  have  the 
benefit  of  the  grant  when  the  citizens  died?  Would  the  citi- 
zens as  a  body  ever  die? 

It  was  probably  a  long  while  before  the  communitas  of 
townsmen  was  regarded  as  anything  more  than  a  mere  aggre- 
gate of  individuals.  But  the  more  the  townsmen  acted  and 
were  treated  as  a  unit,  the  more  natural  it  would  seem  to 
treat  them  as  a  collective  person.  To  regard  the  group  as 
a  single  person  would  be  impossible  until  the  group  will  was 
regarded  as  a  single  will. 

Sometimes  men  are  unanimous.  In  that  case  plurality 
naturally  becomes  unity :  the  many  think  and  act  "  like  one 
man."  But  more  often  there  is  dissension:  then  unity  be- 
comes impossible  —  or  possible  only  by  some  kind  of  fiction. 
Suppose  a  score  of  men  cry  "  No,"  while  80  cry  "  Aye  " :  to 
our  modern  minds  it  is  plain  that  the  "  Ayes  "  have  it.  But 
the  whole  hundred  men  cannot  thereby  be  said  to  cry  "  Aye," 
unless  men  are  content  to  ignore  the  voice  of  the  minority 
and  agree  to  record  a  fictitious  unanimity.  This  recognition 
of  the  majority  as  equivalent  to  the  whole,  although  so  read- 
ily allowed  to-day, 2  is  not  an  early  principle.  To  count  polls, 
to  "  give  one  man  one  vote,"  to  make  a  man  count  for  one  and 

borough  and  the  influence  of  the  one  upon  the  other  will  be  discussed 
later.  For  the  present  it  is  enough  that  they  were  not  identical,  though 
they  might  be  very  closely  interwoven  in  towns  where  the  same  men  were 
prominent  members  of  each,  and  where  the  mercantile  element  predomi- 
nated in  municipal  affairs. 

1  For  the  venality  of  the  royal  prerogative  in  the  time  of  Richard  I 
see  Stubbs,  Select  Charters,  p.  256. 

2  An   obvious   exception   to  the  modern   supremacy   of  the   majority 
is  the  requirement  of  unanimity  in  a  jury.     For  the  history  upon  this 
point  see  Pollock  and  Maitland,  History  of  English  Law,  n.  pp.  625-7. 


55.     CARR:  CORPORATENESS  173 

no  more,  must  have  seemed  in  the  Middle  Ages  unnatural  and 
inconvenient.  The  opinion  of  the  sage  was  thereby  made  of 
no  greater  weight  than  the  opinion  of  the  fool. 

Italy  and  the  Church  helped  to  establish  the  authority  of 
the  major  pars.1  It  was  conceded  that  the  will  of  the  um- 
versitas  could  be  expressed  by  the  major  pars  of  members 
properly  present  at  a  proper  meeting,  if  the  major  pars  were 
also  the  sanior  pars.  Henceforward  the  shout  of  the  major 
et  sanior  pars  was  allowed  to  drown  the  shout  of  the  minority. 
When  a  minority  began  at  length  to  be  considered  as  bound 
by  the  vote  of  the  majority,  the  communitas  of  the  whole 
body  began  to  show  a  truer  corporateness.2 

Two  other  influences  were  at  work  to  unify  and  personify 
the  group,  the  common  seal,3  and  the  common  name.  The 
use  of  a  seal  provided  a  tangible  token  of  burghal  unity  and 
unanimity.  The  seal  was  an  authoritative  sign  which  many 
men  who  could  not  read  could  recognise.  The  formal  affix- 
ing of  the  common  seal  sanctified  the  expression  of  the  com- 
mon will  and  accentuated  the  singleness  of  the  collective 
person.  This  accentuation  was  deepened  by  the  existence  of 
a  common  name.4  The  possession  of  a  common  seal  and  a 
common  name  tended  to  mark  off  the  borough  community 
from  other  bodies  which  consisted  merely  of  co-owners  or 
joint  tenants.  The  names  of  nascent  corporations  remained, 
however,  suggestive  of  collective  rather  than  single  person- 
ality. The  borough  of  X  and  the  university  of  Y  are  legally 
described  as  the  Mayor,  Aldermen,  and  Burgesses  of  X,  and 
the  Chancellor,  Masters,  and  Scholars  of  F.8  The  collective 
character  of  such  corporate  names  show  how  hardly  the  per- 
sonality of  the  group  was  to  be  distinguished  from  the  sum 

1  See  Pollock  and  Maitland,  ib.  I,  p.  509 :  Township  and  Borough,  Mait- 
land,  pp.  34-5:  Political  Theories  of  the  Middle  Ages,  vn.,  and  Prof. 
Maitland's  notes,  pp.   166-7    (in  square  brackets). 

2  See  Gierke,  Genossensschaftsrecht,  II,  478,  III,  322,  etc. 

8  See  Pollock  and  Maitland,  History  of  English  Law,  i.  pp.  683-4. 

4  The  corporate  name,  says  Blackstone,  is  the  very  being  of  the  con- 
stitution of  the  body,  the  knot  of  its  combination,  without  which  it  could 
not  perform  its  corporate  functions.  Comm.  i.  474-5. 

*  Sometimes  these  corporate  names  were  so  cumbrous  as  to  need 
abridgment  by  subsequent  charter.  See  the  charter  of  the  Merchants 
Adventurers  for  Discovery  of  New  Trades,  1566:  "Whereas  .  .  .  the 
Fellowship's  name  is  long  and  consisteth  of  many  words." 


174  V.     COMMERCIAL    LAW 

of  the  members  thereof.  Nevertheless  the  facts  were  being 
prepared  for  the  theory. 

There  is  nothing  surprising  in  the  idea  that  a  group  of 
men  is  capable  of  collective  action.  Instances  of  early  group- 
action  might  be  multiplied  almost  indefinitely.  There*  was, 
for  example,  group-accusation  in  the  process  of  frank-pledge : 
in  the  village  there  was  group-liability,  in  the  manor  group- 
payment.  When  the  group-action  becomes  organised,  the 
group  is  readily  conceived  to  act  as  a  person.1  One  remark- 
able case  of  village  personality  is  to  be  found  in  the  Select 
Pleas  in  the  Manorial  Courts:2 

"  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." 

The  village  of  Brightwaltham  appears  in  Court  as  an 
organised  community,  a  definite  party  to  an  action.  By 
virtue  of  a  quasi- juridical  personality  it  enters  into  a  formal 
agreement  with  the  lord  of  the  manor.  It  resigns  its  claim 
to  the  wood  of  Hemele,  and  in  return  gets  rid  of  the  lord's 
claim  to  the  wood  of  Trendale.  If  the  feebly  organised  vil- 
lage had  something  of  juristic  personality,  the  strongly 
organised  borough  was  likely  to  possess  more.  It  is  therefore 
the  less  surprising  to  find  London  town  spoken  of  in  a  Year- 
book of  Edward  III  as  a  "  Cominaltie  come  un  singuler 
person  qe  puit  aver  action  per  nosme  de  comon  come  un  sole 
person  averoit."  3 

If  the  borough  could  be  thought  of  as  a  person,  the  time 
was  now  at  hand  when  it  could  be  considered  a  perpetual 
person.4  Mortmain  legislation  had  hitherto  been  confined  to 
ecclesiastical  associations,  but  towards  the  end  of  the  four- 
teenth century  a  change  took  place.  It  was  realised  that  it 
was  inconsistent  and  inconvenient  that  citizen  groups  should 
be  exempted  from  the  laws  which  were  applied  to  religious 

1  For  instance,  if  the  village  acts  as  farmer.     See  Villainage  in  Eng- 
land, Vinogradoff,  pp.  356,  360:    Madox,  Firma  Burgi,  54  f,  54  g. 

2  Ed.  Maitland,  II  Selden  Society,  p.  150.     Vinogradoff,  pp.  358-9. 

8  Liber  Assisarum,  62,  19  Edw.  III.  See  the  valuable  list  of  references 
in  Gross,  i.  93,  n.  3. 

4  See  Liber  Assisarum,  321,  49  Edw.  Ill;  "La  City  est  perpetuel." 


55.     CARR:   CORPORATENESS  175 

groups;  Accordingly  the  Second  Statute  of  Mortmain 
struck  at  municipal  bodies,  because  "  mayors,  bailiffs,  and 
commons  of  cities,  boroughs,  and  others  which  have  offices 
perpetual  "  were  "  as  perpetual  as  men  of  religion."1  Thus 
this  statute  was  not  the  least  powerful  of  those  forces  which 
were  co-ordinating  the  citizen  body  with  the  religious  house, 
and  preparing  in  England  the  way  for  the  more  refined 
Italian  doctrines  of  corporateness. 

To  call  a  borough  a  perpetual  person  was  to  emphasise 
the  distinction  between  it  and  its  mortal  members.  To  bring 
the  borough  into  line  with  the  religious  houses  was  to  subject 
it  to  the  exact  and  polished  notions  of  the  Canonists.  Side 
by  side  the  members  of  the  borough  and  of  the  religious  house 
had  to  seek  the  royal  licence  to  evade  the  mortmain  restric- 
tions.2 

The  charters  which  the  boroughs  were  now  anxious  to 
obtain  might  be  expected  to  show  traces  of  the  canonistic 
ideas.  They  might  be  expected  to  answer  for  us  the  question 
at  what  point  the  borough  became  a  true  corporation.  But 
for  two  reasons  the  question  is  not  to  be  answered  so  easily. 
In  the  first  place  the  words  and  the  thoughts  underlying  the 
words  are  vague  and  defy  interpretation.  The  corporateness 
of  a  borough  possessing  a  charter  dated  from  this  period  is 
not  proved  merely  by  the  presence  therein  of  words  which  in 
later  times  implied  corporateness.3  Incorporation  was  a 

»1391.    15  Ric.  II,  c.  5. 

2  Many  towns  applied  for  such  charters  to  hold  land.  The  following 
is  a  specimen:  —  Rex  omnibus  ad  quos  etc.  salutem.  Licet  etc.  de  gracia 
tamen  nostra  speciali  et  pro  xx  libris  nobis  solutis  in  hanaperio  nostro 
concessimus  et  licentiam  dedimus  .  .  .  J.  S.  et  W.  H.,  Senescallis  gilde 
mercatorie  de  Bruggewater  et  communitati  ejusdem  ville  quod  ipsi  x 
mesuagia  V  acras  terre  in  acras  prati  .  .  .  dare  possint  et  assignare 
cuidam  Capellano  divina  in  ecclesia  beate  Marie  de  Bruggenwater  sin- 
gulis  diebus  celebraturo  imperpetuum,  habenda  et  tenenda  sibi  et  suc- 
cessoribus  suis  in  auxilium  sustentacionis  sue  imperpetuum  .  .  .  (1392) 
Gross,  II.  353. 

8  For  example  here  follows  a  charter  of  Edward  III  to  Coventry 
(20th  day  of  January,  1345)  :  — 

"Dictis  hominibus  de  Couentre  tenentibus  dicti  Manerii  quod  ipsi  et 
corum  heredes  et  successores  communitatem  inter  se  decetero  habeant  et 
Majorem  et  Ballivos  idoneos  eligere  et  creare  possint  annuatim."  Record 
Office,  Charter  Roll,  18  Edward  III,  m.  1. 

Again,  the  same  king  grants  three  years  later  to  the  burgesses  of 
Hedon,  "quod  iidem  Burgenses  et  eorum  heredes  e.t  successores  com- 
munitatem inter  se  habeant,"  etc.  as  before  (Gross,  i.  93  and  n.  107). 


176  V.     COMMERCIAL    LAW 

thing  which  the  burgesses  of  this  period  neither  wanted  nor 
realised  that  they  lacked.  "  Nobody,  no  body  wanted  it," 
says  Professor  Maitland.1  They  wanted  to  be  assured  of 
their  privileges  to  trade,  hold  land,  and  the  like,  but  they 
probably  had  no  desire  for,  and  small  knowledge  of,  corpor- 
ateness  in  the  abstract.  There  was  in  the  boroughs  a  strong 
indigenous  stock  of  what  one  may  perhaps  call  "  concrete 
corporateness,"  upon  which  the  alien  growth  of  abstract 
corporateness  was  afterwards  quietly  and  successfully 
grafted.  In  the  second  place  the  charters  of  this  period  are 
not  decisive  as  to  the  corporateness  of  the  boroughs,  because 
at  this  point  the  confusion  between  borough  and  gild  can  no 
longer  be  ignored. 

Although  closely  connected  and  frequently  identified,  gild 
and  borough  were  distinct.  Of  the  many  forms  of  gild  the 
gild  merchant  now  concerns  us  most.  It  is  sufficiently  im- 
portant to  require  some  preliminary  remarks. 

Trade  in  the  Roman  world  was  largely  in  the  hands,  of 
collegia, 2  but  it  seems  probable  that  the  English  gild  mer- 
chant was  not  the  survival  of  any  Roman  institution.3 
Whether  it  was  of  exclusively  English  origin,4  or  whether  it 
came  from  the  Continent,5  it  appears  in  England  soon  after 
the  Conquest,  if  not  earlier,  as  a  widely-spread  trade  organi- 
sation. In  those  days  the  towns  were  the  trading  units. 

What  is  conveyed  by  the  language  of  these  charters?  Are  we  to  say 
that  the  word  "  communitatem  "  by  some  magic  of  its  own  confers  cor- 
porateness upon  these  two  towns?  Or  are  we  to  say  that  the  word  meant 
nothing  more  than  the  acknowledgement  of  common  trading  interests, 
of  collective  ownership  of  property,  and  of  a  certain  degree  of  autonomy? 
Would  it  not  be  true  to  say  that  the  thought  of  true  corporateness,  if  "it 
has  been  conceived  yet,  has  not  yet  been  applied  to  the  municipal  group? 

1  Township  and  Borough,  p.  20. 

2  Of  some   forty-four  kinds   of  trading   associations   known  to   have 
existed  in  Imperial  Rome,  only  one  (the  smiths)  is  mentioned  on  inscrip- 
tions found  in  England.     See  Bath,  Ancient  and  Modern,  Earle,  p.  30. 

3  According  to  Scrutton    (Influence  of  Roman  Law   on   the  Law   of 
England,  p.  55),  the  birth-place  of  the  gilds  is  England,  and  possibly 
London.     Although  this   statement   would  probably   not  find   universal 
acceptance,  it  is  at  least  improbable  that  the  gilds  are  a  Roman  survival. 
See  City  Guilds  Commissioners'  Report  (1884),  p.  8.    For  the  two  views, 
see  Coote,  The  Romans  of  Britain,  on  the  one  hand,  and  Stubbs,  Const. 
Hist.,  p.  105  on  the  other. 

*On  the  subject  of  the  Gild  merchant  see  the  two  volumes  of  Dr. 
Gross.    See  also  Two  Thousand  Years  of  Gild  Life,  Lambert. 
6  See  Gross,  i.  pp.  169-70. 


55.     CARR:  CORPORATENESS  177 

Commerce  was  municipal  and  intermunicipal.1  The  gild 
merchant,  along  with  the  several  craft-gilds,  supervised  the 
conditions  of  trade  and  labour.  Thus  were  regulated  proc- 
esses and  prices,  materials  and  tools,  working-hours  and 
wages,  the  number  of  apprentices  and  the  nature  of  their 
duties.  Thus  also  were  punished  dishonest  workmanship, 
the  use  of  bad  stuff,  or  the  use  of  short  weights  and  measures. 
Consequently  the  traders  of  the  town  were  united  in  the  pro- 
tection and  pursuance  of  their  common  trade  interests.  Just 
as  men  met  as  Christians  for  mutual  comfort  and  spiritual 
benefit,  so  they  met  as  members  of  a  gild  for  mutual  protec- 
tion and  earthly  benefit.  The  gild  excluded  the  alien:  it 
fostered  a  strong  but  narrow  municipal  monopoly.  It  was 
consequently  a  valuable  asset  of  the  town,  and  one  for  which 
it  was  most  important  to  obtain  royal  recognition.  It  was 
largely  identified  with  the  town,  its  members  with  the  towns- 
men, its  system  of  government  with  the  municipal  system  of 
government.  This  considerable  identity  has  interest  for 
those  who  are  inquiring  at  what  moment  the  borough  became 
a  corporation.  For  out  of  this  identity  arose  the  theory  that 
the  grant  of  gilda  mercatoria  to  a  borough  was  a  grant  of 
corporateness.2  According  to  this  view  the  gild  merchant 
was  the  corporate  realisation  of  the  borough:  the  gild 
machinery  was  transferred  to  the  borough:  the  gild-head 
became  the  town-head:  the  gild-alderman  became  the  town- 
alderman,  the  gild-hall  the  town-hall.3  The  supporters  of 
this  view  point  out  that  the  important  members  of  the  gild 

1  See  Social  England,  ed.  Traill,  i.  p.  467.     For  example,  there  was  a 
recognised  practice  of  intermunicipal  reprisals.     When  the  king  freed 
burgesses  of  X  from  toll  throughout  the  realm,  he  allowed  them  to  make 
reprisals  against  men  of  Y  taking  toll  of  a  man  of  X.     These  reprisals 
suggest  the  idea  that  a  trader  was  a  member  of  a  body  answerable  for 
trade  acts  of  other  members.    In  the  trade  community  there  was  a  rough 
kind  of  several  guarantee  by  members  of  a  member's  debt.     The  com- 
munity was  in  no  way  a  "juristic  person."    It  did  not  sue,  and  was  not 
sued,  by  a  common  name  as  would  be  the  practice  in  the  case  of  the 
Cives  de  X  or  the  Burgesses  de  Y.    See  Select  Pleas  in  Manorial  Courts, 
ed.  Maitland,  vol.  2,  Seld.  Soc.,  pp.  134-5;  Gierke,  das  deutsche  Oenos- 
senschaftsrecht,  II,  pp.  388-9. 

2  Merewether   and   Stephens   in   combating   this   view    attribute   it   to 
Brady,  see  History  of  Boroughs,  p.  118. 

8  See  for  instance  the  Early  English  Text  Society's  volume  on  English 
Gilds,  p.  250.  For  the  part  played  in  this  controversy  by  the  word 
*  alderman,'  see  Madox,  Firma  Burgi,  30,  and  the  discussion  in  Gross. 


178  V.     COMMERCIAL    LAW 

were  the  same  men  as  the  important  members  of  the 
borough:1  that  the  gild  organisation  supplanted  the  old 
borough  moot,2  and  therefore  it  was  by  way  of  the  gild  that 
the  borough  received  from  the  Crown  the  privilege  of  incor- 
poration.3 

This  theory,  after  having  won  wide  acceptance,4  has  been 
strenuously  opposed  by  Mr.  Gross.5  It  must  be  admitted 
that  in  a  few  cases  gild  and  borough  may  have  become  fused, 
and  that  in  general  the  spirit  and  organisation  of  the  gild- 
community  may  have  affected  the  development  of  the  borough- 
community.  But  if  we  find  that  both  gild  and  borough  are 
described  by  the  word  "  communitas,"  we  must  remember  that 
that  word  was  capable  of  both  a  refined  and  a  natural  mean- 
ing. It  may  well  be  that  the  gild-community  was  as  concrete 
as  the  truly  corporate  borough-community  is  abstract. 

No  general  inference  can  be  drawn  with  safety  from  the 
history  of  any  single  town,  —  least  of  all  from  that  of 
London.  Apparently  at  Bristol  and  at  Nottingham  the  hall 
of  the  gild  existed  side  by  side  with  the  burghal  moot-hall.6 
If  it  were  true  to  say  that  the  importance  of  the  burghal 
moot  declined  while  that  of  the  gild  increased,  it  might  still 
be  untrue  to  say  that  the  officials  and  governors  of  the  gild 
became  the  officials  and  governors  of  the  borough. 

The  fact  that  the  liber  burgus  and  the  gilda  mercatoria 
were  occasionally  granted  separately  seems  to  show  that  the 

^ee  Early  English  Text  Society's  English  Gilds,  p.  329. 

2  Of  course  gildsmen  and  burgesses  were  in  the  mass  identical.     The 
description  of  Chaucer's  Pilgrims  may  be  recalled,  though  the  language 
be  untechnical: 

"  An  haberdasher  and  a  Carpenter 

A  webbe,  A  Dyere  and  a  Tapiser, 

Were  with  us  eek  clothed  in  o  liveree 

Of  a  solemn  and  greet  fraternitee  .  .  . 

Wei  semed  ech  of  them  a  fair  burgeys 

To  sitten  in  a  gild-halle,  on  the  deys: 

Everich,  for  the  wisdom  that  he  can, 

Was  shapelich  for  to  been  an  alderman." 

(Prologue  to  Canterbury  Tales,  11.  362-372).  To  ask  if  a  man  were  a 
gildsman  or  a  burgess  would  be  as  unsatisfactory  as  to  ask  if  he  were 
a  father  or  a  son. 

3  See  Gierke,  Genossenschaftsrecht,  I,  pp.  243-4,  345. 

*  See  ib.  I,  ss.  27  and  37.    Social  England,  II,  407. 
16  Gild  Merchant,  i.  p.  80. 

*  See  Gross,  I,  p.  82,  n.  3. 


55.     CARR:  CORPORATENESS 


179 


two  were  regarded  as  distinct.1  The  mayor  and  burgesses  of 
Macclesfield,  in  answer  to  the  Earl  of  Chester  in  the  twenty- 
fourth  of  Edward  III,  claim  (a)  liber  burgus,  and  (b)  gild, 
not  only  as  distinct  things,  but  for  distinct  reasons.2 

But  although  gild  and  borough  were  not  identical,  they 
were  sufficiently  similar  to  deceive  Coke. 

"  Et  fuit  bien  observe,"  he  reported,  "  que  dauncient 
temps  inhabitants  ou  Burgesses  d'un  ville  ou  Burgh  fuerent 
incorporat  quant  le  Roy  graunt  a  eux  daver  Guildam  Merca- 
toriam."  3 

This  dictum  was  faithfully  followed  in  1705  by  Holt,  C.  J., 
in  the  case  of  the  Mayor  of  Winton  v.  Wilks.  The  defendant 
was  accused  of  having  carried  on  a  trade  without  being  a 
member  of  the  gild-merchant.  "  The  Court  was  moved  in 
arrest  of  judgment,  and  the  Judges  observed  that  when  in 
ancient  times  the  king  granted  to  the  inhabitants  of  a  villa 
or  borough  to  have  Gildam  Mercatoriam,  they  were  by  that 
incorporated,  but  what  it  signified  in  this  declaration  nobody 
knew."  4 

This  opinion  of  Coke  appears  untenable.  To  suppose  that 
the  possession  of  any  one  of  the  incidents  of  corporateness 
necessarily  implied  the  existence  of  a  corporation  is  inaccu- 
rate. A  similar  error  was  cherished  with  regard  to  the 
possession  of  a  Firma  Burgi.5  The  possession  of  this,  one 
of  the  franchises  of  a  fully  incorporated  borough,  was  from 
the  time  of  Edward  IV  considered  to  imply  municipal  incor- 
poration. The  rights  of  having  a  mayor,  of  being  toll-free, 
and  of  using  a  corporate  name,6  appear  in  like  manner  to  have 
been  considered  to  imply  the  legal  incorporation  of  a 
borough,  although  in  fact  the  possession  of  such  rights 
might  leave  a  borough  still  far  from  true  corporateness. 

^ee  the  grant  to  Newton  (South  Wales).     Gross,  II,  pp.  385-6. 

8  See  Gross,  II,  p.  171. 

8  Coke,  10  Rep.  30.  And  see  1  Roll  Ab.  513:  cited  in  Blackst.  Comm.  i» 
474.  See  also  Cokenage  v.  Large,  Madox,  Firma  Burgi,  197. 

*  Kyd,  Corporations,  I,  p.  64.    See  Gross,  II,  p.  269. 

8  See  Kyd,  ib.  I,  p.  43. 

8  In  Norris  and  Trussell,  etc.  v.  Staps  (Pasch.  14  Jac.  Rot.  907),  it  is 
said:  "I  am  of  opinion  that  they  (the  guardians,  etc.  of  Newbury) 
needed  not  to  show  how  they  were  incorporated,  for  the  name  argues  a 
corporation,  as  the  like  of  cities."  Hobart,  210.  See  ArundePs  case,  ib. 


180  V.     COMMERCIAL    LAW 

The  existence  of  burghal  privileges  and  burghal  property 
raised  the  question  in  whom  such  privileges  and  property 
vested.  Gradually  men  had  ceased  in  this  connection  to 
speak  of  the  "  burgesses  and  their  heirs,"  and  spoke  rather 
of  the  "  burgesses  and  their  successors."  In  many  towns 
there  was  a  steady  municipal  income  derived  from  various 
sources.2  It  was  something  to  be  able  to  distribute  this,  and 
perhaps  to  share  in  the  distribution.  It  was  something  to 
be  a  burgess.  In  consequence  citizenship  became  restricted. 
Mere  geographical  connection  with  the  community  was  not 
necessarily  a  sufficient  qualification.  A  town  would  contain 
many  men  who  were  not  freemen  of  it.  The  freedom  of  a  city 
was  heritable,  though  not  strictly  hereditary,  because  a  man 
and  his  son  might  both  be  freemen  simultaneously.3  Freedom 
was  most  usually  obtained  by  transmission  from  father  to 
eldest  son  or  from  a  master  to  his  apprentice :  in  other  words, 
in  these  two  cases  less  restrictions,  and  perhaps  less  entrance- 
fees,  were  imposed  upon  the  aspirant  to  citizenship.4 

To  restrict  the  numbers  and  to  close  up  the  ranks  of  the 
burgesses  was  to  knit  them  together  as  members  of  an  organi- 
sation now  highly  complex  and  ready  for  the  new  foreign 
theory  of  corporateness.  Much  of  this  effect  is  due  to  the 
influence  of  the  gild.  The  gild-merchant  may  not  have 
included  all  the  burgesses,  and  may  not  have  excluded 
all  the  non-burgesses,  but  it  existed  in  order  to  work 
the  common  borough  trade  to  the  best  common  advantage. 

p.  64.     For  plea  of  corporation  without  shewing  the  creation  of  it,  see 
9  Edw.  Ill,  19. 

1  See  Gross,  Gild  Merchant,  I,  95. 

2  See  Maitland,  Township  and  Borough,  Appendix,  ss.  145  and  148. 

8  See  Pollock  and  Maitland,  History  of  English  Law,  I,  671.  Freedom 
of  boroughs  was  a  matter  of  custom.  See  R.  v.  Salway,  9  B.  &  C.  424. 
It  has  suffered  from  the  Municipal  Corporations  Acts.  See  45,  46  Viet. 
c.  50,  s.  202. 

4  According  to  the  Report  of  the  Municipal  Corporations  Commission 
(1835)  freedom  was  obtainable  by  (a)  birth,  (6)  apprenticeship,  (c) 
gift,  (d)  purchase,  and  (e}  marriage.  See  the  Report,  p.  2016.  See 
also  Gierke,  Genossenschaftsrecht,  I,  s.  57.  What  is  important  for  our 
purpose  now  is  to  notice  that  the  citizenship  was  restricted,  was  valuable 
to  the  claimant,  and  was  a  source  of  profit  to  the  body  of  citizens  by 
means  of  a  system  of  entrance-fees.  Citizen-bodies  which  had  paid  con- 
siderable sums  to  obtain  from  the  king  recognition  of  their  municipal 
franchises,  naturally  considered  that  a  new-comer  to  the  citizenship 
should  make  to  them  some  payment  on  his  accession  to  privileges  for 
which  they  had  themselves  been  put  to  expense. 


55.     CARR:   CORPORATENESS  181 

It  may  not  have  been  the  mainspring  of  burghal  corporate- 
ness,  it  may  not  have  provided  the  borough  with  a  ready-made 
system  of  government,  but  it  undoubtedly  taught  the  borough 
some  practical  lessons.  For  the  gild  was  the  grand  example 
of  voluntary  association.1  In  an  age  when  men  were  "  drilled 
and  regimented  into  communities  in  order  that  the  State 
might  be  strong  and  the  land  might  have  peace,"  2  it  arose 
spontaneously3  and  bound  men  together  by  ties  of  social, 
religious,  and  commercial  support.  The  feudal  system  had 
supported  the  theory  that  all  power  and  all  right  came  from 
above,  and  was  entrusted  by  God  to  Pope  and  Emperor,  to 
be  by  them  in  turn  transmitted  down  through  a  series  of 
chosen  agents.  But  men  felt  that  they  had  power  and  rights 
within  themselves,  underived  from  such  sources  as  these :  this 
feeling,  finding  expression  in  the  principle  of  voluntary  asso- 
ciation, triumphed  over  feudalism  and  theocratism.4 

This  form  of  voluntary  association  had  one  striking 
feature.  The  associates  bound  themselves  by  oath.5  The 
gildsman  swore  in  a  certain  formula,  promised  to  obey  com- 
mon rules  and  to  support  the  gild, 6  paid  his  entrance-fee  and 
thus  became  a  member.  This  method  of  making  membership 
personal  and  basing  it  upon  a  definite  ceremony,  spread  to 
the  borough,  where  citizenship  could  no  longer  satisfactorily 

1  See  Gierke,  Oenossenschaftsrecht,  I,  ss.  26-7,  die  freie  Einung. 

8  Pollock  and  Maitland,  History  of  English  Law,  I,  p.  688. 

8  The  origin  of  the  gild-system  is  variously  attributed  to  heathen  and 
to  Christian  institutions.  Wilda  attributes  it  to  the  fusion  of  heathen 
practices  of  sacrifice  and  feasting  with  the  Christian  idea  of  brotherly 
love:  others  to  Scandinavian  associations  for  mutual  revenge,  others  to 
more  natural  associations  for  mutual  support.  See  Gierke,  Oenossen- 
schaftsrecht, I,  p.  222,  where  see  references  in  n.  1. 

*  See  Gierke,  ib.  I,  pp.  155,  220:  Althusius,  pt.  I,  c.  2,  etc. 

6  The  binding  by  oath  seems  to  have  been  distasteful  to  monarchs 
on  the  continent.  The  Capitularium  of  Charlemagne  contains  the  ordi- 
nance "  de  sacrament  per  gildonia  invicem  conjurantibus.  ut  nemo  facere 
praesumat"  (779  A.D.).  See  Gierke,  ib.  1,  p.  224,  n.  2:  p.  236,  n. 
57. 

6 In  the  Cambridge  gild,  for  instance,  a  man  swore  to  hold  "true 
brotherhood  for  God  and  all  the  world  and  all  the  brotherhood,  to  sup- 
port him  that  hath  the  best  right,"  to  avenge  his  comrades  in  the  gildship 
if  an  outlaw  failed  to  discharge  his  boot,  and  agreed  to  pay  out  of  the 
gild  funds  the  wer  due  from  a  comrade  in  a  case  of  emendable  homicide. 
The  principle  of  "  Let  all  bear  it,  if  one  misdo  "  thus  provided  a  rough 
system  of  insurance.  See  Kemble,  Saxons  in  England,  I,  pp.  513-14. 
Gierke,  Oenossenschaftsrecht,  I,  pp.  230-1. 


182  V.     COMMERCIAL    LAW 

be  defined  according  to  the  quantity  of  land  held  or  the  qual- 
ity of  the  tenure. 

The  adoption  of  this  ceremony  and  oath  by  the  borough 
had  considerable  consequences.  Any  ill-dealing  between 
fellow-freemen  was  a  violation  of  that  oath,  which  might  be 
punished  by  the  body  of  freemen  or  their  representatives. 
It  might  or  might  not  be  breach  of  law :  it  was  certainly 
breach  of  contract :  it  was  treason  to  the  community.  More- 
•over  the  man  who  took  an  oath  on  entering  the  citizenship 
found  himself  resembling  the  monk  who  took  vows  on  enter- 
ing a  religious  house.1  This  was  one  more  power  at  work 
to  bring  the  borough  into  line  with  the  more  technically 
corporate  ecclesiastical  body. 

Artificial  membership  tended  to  make  an  artificial  com- 
munity. The  time  was  coming  when  the  English  borough 
was  fit  to  receive  the  Italian  doctrine,  —  when  its  personality 
might  be  deemed  a  persona  ficta.2 

1  See  Pollock  and  Maitland,  History  of  English  Law,  I,  p.  671. 

2Y.  B.  Hen.  VI,  9,  in  reference  to  "le  Commonalty  et  les  Baill.  de 
Ipswich,"  says  "  ils  son  per  cest  nom  un  person  corporate  et  un  entier 
corps."  The  authority  for  saying  that  English  law  holds  the  "  Fiction 
theory  "  of  corporateness  is  usually  found  in  the  following  sentence  from 
Coke's  Report  of  the  Button's  Hospital  Case  (10  Rep.  32  b):  — "The 
corporation  is  only  in  abstracto,  and  rests  only  in  intendment  and  con- 
sideration of  the  law:  it  is  invisible  and  immortal."  For  other  theories 
of  corporateness  see  the  following  chapters  of  this  Essay;  see  also  espe- 
cially Professor  Freund's  Legal  Nature  of  Corporations,  pp.  40-83. 


56.     EARLY    FORMS    OF    PARTNERSHIP1 

BY  WILLIAM  MITCHELL  2 

DURING  the  Middle  Ages  contracts  of  partnership  were 
common,  and  at  their  close  companies  with  freely 
alienable  shares  had  come  into  existence.  In  the  early  cen- 
turies the  most  common  form  of  partnership  was  the  "  com- 
menda."  This  was  a  partnership  in  which  one  of  the  parties 
supplied  the  capital  either  in  the  shape  of  money  or  goods, 
without  personally  taking  an  active  part  in  the  operations 
of  the  society,  while  the  other  party  supplied  none  or  only 
a  smaller  fraction  of  the  capital  and  conducted  the  actual 
trade  of  the  association.  This  form  of  partnership  was  espe- 
cially used  in  maritime  trade  and  was  often  confined  to  single 
ventures.  Its  popularity  was  due  to  the  fact  that  it  enabled 
the  capitalist  to  turn  his  money  to  good  account  without 
violating  the  canonical  laws  against  usury,  and  the  small 
merchant  or  shipper  to  secure  credit  and  to  transfer  the  risk 
of  the  venture  to  the  capitalist.  The  nature  of  the  contract 
will  best  be  shown  by  quoting  one  or  two  examples  of  the 
vast  number  of  these  contracts  that  have  been  preserved. 
The  following  is  a  Marseilles  contract  of  the  year  1210: 
"  Notum  sit  cunctis  quod  ego  Bonetus  Pellicerius  confiteor 
et  recognosco  me  habuisse  et  recepisse  in  comanda,  a  te 
Stephano  de  Mandoil  et  a  te  Bernardo  Baldo,  xxv  1.  regalium 
coronatorum  .  .  .  quas  ego  portabo  ad  laborandum  in  hoc 
itinere  Bogie,  is  nave  de  Estella,  vel  ubicumque  navis  ierit 
causa  negotiandi,  ad  vestrum  proficuum  et  meum,  ad  f  ortunam 
dei  et  ad  usum  maris,  et  totum  lucrum  et  capitale  convenio 

1  This  Essay  was  first  published  in  "  An  Essay  on  the  Early  History 
of  the  Law  Merchant,"  Yorke  Prize  Essay  (Cambridge)  for  1903  (Cam- 
bridge: University  Press,  1904),  pp.  124-140,  being  part  of  c.  V. 

3  B.  A.  Cambridge  University,  1903,  M.  A.,  190T. 


184  V.     COMMERCIAL    LAW 

et  promitto  reducere  in  potestatem  vestri  et  vestrorum  fide- 
liter,  et  veritatem  inde  vobis  dicam,  et  ita  hoc  me  observa- 
turum  in  mea  bona  fide  per  stipulationem  promitto,  et  in  omni 
lucro  quod  Deus  ibi  dederit,  debeo  habere  et  accipere  quartum 
denarium." 

Such  contracts  were  not  rare  in  Italy  in  the  12th  century 
and  the  contracts  are  to  the  same  intent  as  those  of  Mar- 
seilles in  the  13th  century.  "March  1155.  Ego  Petrus  de 
Tolosi  profiteer  me  accepisse  a  te  Ottone  Bono  libras  centum 
viginti  septem  quas  debeo  portare  laboratum  Salernum  vel 
ex  hinc  apud  Siceliam,  et  de  proficuo  quod  ibi  deus  dederit 
debeo  habere  quartam  et  reditum  debeo  mittere  in  tua  potes- 
tate."  2 

Often  when  both  parties  to  the  contract  contributed  to 
the  capital  of  the  association  the  partnership  was  termed 
"  collegantia,"  or  "  societas,"  to  distinguish  it  from  the  more 
common  form  of  commenda  in  which  the  commendator  alone 
supplied  the  funds. 

"  Bonus  Johannes  Malfuastus  et  Bonus  Senior  Rubeus 
contraxerunt  societatem,  in  quam  Bonus  Johannes  libras  34 
et  Bonus  Senior  libras  16  contulit.  Hanc  societatem  portare 
debet  Alexandrian!  laboratum  nominatus  Bonus  Senior  et  inde 
Januam  venire  debet.  Capitali  extracto  proficuum  et  per- 
sone  (?)  per  medium.  Ultra  confessus  est  nominatus  Bonus 
Senior  quod  portat  de  rebus  nominati  Boni  Johannis  libr.  20 
sol.  13  de  quibus  debet  habere  quartam  proficui — .  Juravit 
insuper  ipse  Bonus  Senior  quod  supradictam  societatem  et 
commendacionem  diligenter  salvabit  et  promovebit  societatem 
ad  proficuum  sui  et  Boni  johannis  et  commendacionem  ad 
proficuum  ipsius  Boni  johannis  et  quod  societatem  omnem  et 
ipsam  commendacionem  et  proficuum  in  potestatem  reducet 
ipsius  Boni  Johannis."3 

But  whether  the  commendator  alone  or  both  parties  con- 
tributed to  the  capital,  the  association  remained  essentially 

1  Documents  Inedits  sur  le  Commerce  de  Marseilles  au  Moyen  Age, 
by  Blancard,  Document  4,  vol.  i.  p.  7.  There  are  scores  of  similar  con- 
tracts of  Commenda  in  these  two  volumes,  and  there  are  numerous  12th 
century  examples  in  the  volume  of  Chartae  in  the  Monumenta  Historiae 
Patriae. 

8  Monumenta  Historiae  Patriae,  Chartae,  column  287. 

8  Goldschmidt,  Handelsrecht,  p.  260  and  note  88  b. 


56.     MITCHELL:  PARTNERSHIP  185 

of  the  same  character.  The  commendator  in  both  cases  was 
a  kind  of  sleeping  partner,  and  it  was  left  to  the  "  tractator  " 
to  carry  out  all  the  necessary  operations.  Though  the  part- 
nership was  generally  formed  for  the  purpose  of  a  definite 
speculation,  it  was  also  formed  for  an  indefinite  series  of 
commercial  transactions,  or  for  as  indefinite  or  sometimes 
a  definite  time,  which  was  occasionally  as  long  as  10  years.1 
As  a  rule  the  commendator  who  supplied  the  capital  took 
the  risk  of  the  transaction;  if  the  goods  were  lost  he  could 
not  recover  the  amount  he  had  advanced,  provided  that  the 
contract  contained  the  usual  clause  "  ad  risicum  et  fortunam 
Dei,  maris  et  gentium,"  or  its  equivalent.  The  usual  share  in 
the  profits  of  a  tractator  who  brought  no  capital  into  the 
partnership  was  a  quarter,  while  in  the  case  where  he  contrib- 
uted to  the  general  fund,  his  share  of  the  profits  amounted  to 
a  half.  It  is  hard  to  tell  whether  the  "  tractator  "  in  early 
times  always  traded  in  his  own  name,  though  there  is  no  doubt 
that  in  later  times  he  did.2  Fertile  holds  the  view  that-  orig- 
inally the  tractator  was  regarded  as  a  mere  factor  of  the 
commendator  who  was  responsible  for  the  acts  of  the  trac- 
tator, but  that  gradually  in  the  course  of  time  the  principle 
was  established  that  he  was  only  responsible  to  the  amount 
of  the  capital  which  he  had  advanced. 3  In  Florence  this  prin- 
ciple was  definitely  established  by  statute  in  1408.  In  the 
medieval  commenda  was  represented  both  the  dormant  part- 
ner and  the  principle  of  limited  liability  of  modern  times. 
The  commenda  was  not  confined  to  England : 4  it  existed  dur- 
ing the  Middle  Ages  in  Germany  and  Scandinavia. 5  In  cases 
where  there  were  several  commendators  who  entrusted  their 
capital  to  one  or  more  tractators,  the  latter  began  to  assume 

1  Goldschmidt,  p.  264. 

8  Goldschmidt,  p.  265  and  note  104.  Lattes,  II  diritto  commerciale, 
p.  157. 

'Fertile,  Storia  del  diritto  italiano,  IV,  685,  note  24.  Cf.  Viollet, 
Histoire  du  droit  civil  frangais,  p.  762.  "  Dans  la  soci6te"  le  bailleur  de 
fonds  ou  commendataire  n'est  passible  des  pertes  que  jusqu'a  concur- 
rence des  fonds  qu'il  a  mis  ou  du  mettre  dans  la  soci£t6." 

4  [An  example  of  a  commenda  in  early  English  trade  is  found  in 
Gross'  Select  Cases  in  the  Law  Merchant,  I,  77,  dated  1300  (Selden  Soc. 
Pub.,  vol.  XXIII,  1908)  —  EDS.] 

'Norrnheim,  Qeldersen's  Handlungsbuch,  Introduction,  43-5. 

Amira,  Nordgermanisches  Obligationsrecht,  vol.  II. 


186  V-     COMMERCIAL    LAW 

a  more  independent  position  towards  commendators.  Con- 
tracting in  their  own  name  the  managers  were  responsible 
for  the  debts  of  the  association,  while  the  commendators  were 
freed,  in  Florence  as  early  as  1408,  from  all  liability  beyond 
the  amount  of  their  quota.  This  type  of  commenda  was  a 
natural  development  of  the  simple  original  type  in  which  there 
were  but  two  persons  involved,  —  a  single  commendator  who 
advanced  the  capital  to  a  single  tractator;  but  it  was  an 
important  development,  and  in  the  16th  century  it  was  regu- 
lated in  Italy  by  several  city  statutes  and  in  the  following 
century  in  France  by  regulation. 1  Thus  regulated  the  society 
contained  both  members  with  limited  liability  and  members 
with  unlimited  liability,  and  it  was  the  latter  that  controlled 
the  administration  of  the  society.  The  older  and  simpler 
form  of  commenda,  however,  existed  side  by  side  with  the 
newer  and  more  complex  type.  Of  the  newer  type  the  modern 
"  Societe  en  commandite  "  is  the  historical  descendant  and  it 
is  characterised  by  the  same  essential  features,  the  existence 
of  two  classes  of  members,  the  one  with  a  responsibility  lim- 
ited to  the  amount  of  the  capital  they  have  contributed,  and 
the  other  \7ith  an  unlimited  liability  for  the  debts  of  the 
society,  the  administration  of  which  lies  solely  in  their  hands. 2 
On  the  other  hand  the  commendator  of  the  older  and  simple 
type  of  commenda  has  his  counterpart  in  the  dormant  partner 
of  modern  commercial  law. 

But  side  by  side  with  the  commenda  there  existed  through- 
out the  Middle  Ages  a  closer  kind  of  partnership  in  which 
the  partners  were  normally  coordinate  members  of  the  associa- 
tion with  the  same  privileges  and  responsibilities.  The  usual 
expression  for  this  type  of  society  was  "  compagnia "  or 
"  societas,"  and  the  firm  was  generally  designated  by  the 
name  of  one  of  its  members  with  the  addition  of  the  phrase 
"  et  socii,"  or  the  like.  It  became  an  essential  feature  of  this 
form  of  partnership  that  the  partners  were  all  of  them  re- 
sponsible individually  for  the  debts  of  the  firm.3  At  no  time 
in  Italy  was  the  power  of  partners  to  bind  by  contract  their 

1  Goldschmidt,  269.    Lattes,  p.  162  and  notes. 

2V.  Thaller,  TraiU  tiUmentaire  de  Droit  Commercial.  §§  258-262,  pp. 
160-162. 

8  Lattes,  p.  161  and  notes. 


56.  MITCHELL:  PARTNERSHIP     187 

fellow  partners  in  practice  denied.1  The  principle  of  direct 
representation  was  thus  admitted,  and  Baldo  writing  in  the 
14th  century  declared  "  ex  consuetudine  mercatorum  unus 
socius  scribit  nomen  alterius."  2  Baldo  however  adds  that 
this  was  "  abusio."  This  was  an  important  advance  upon  the 
principles  of  both  Roman  and  old  Germanic  law,  neither  of 
which  recognised  sufficiently  the  principle  of  direct  represen- 
tation. "  All  this  view  of  the  law,"  says  Kohler  writing  of 
the  principle  of  representation,  "  appears  altogether  artificial 
and  cannot  well  appeal  to  primitive  man:  he  cannot  under- 
stand a  transaction  (based)  upon  the  will  of  another ;  even 
a  developed  law  like  Roman  law  has  only  developed  '  repre- 
sentation '  very  imperfectly  and  German  law  long  resisted 
it."  3  Medieval  merchants  and  mercantile  usage  recognised 
the  principle  of  representation ;  they  recognised  it  not  only 
in  the  right  of  one  partner  to  make  contracts  binding  upon 
the  other  partners  of  a  firm,  they  also  recognised  it  in  the 
medieval  bills  of  exchange  with  their  clauses  to  order  or 
bearer. 

As  the  names  of  all  partners  did  not  appear 4  in  the 
name  of  the  firm,  but  were  simply  referred  to  generally  in 
the  phrase  "  et  socii "  or  some  equivalent  expression,  it 
became  important  to  determine  who  were  to  be  legally  re- 
garded as  members  of  the  firm.  In  early  Italian  statutes 
actual  common  trading  of  the  persons  concerned,  or  general 
notoriety,  sufficed  to  prove  the  partnership :  "  et  intellegantur 
socii  qui  in  eadem  statione  vel  negotiatione  morantur  vel 

1Cf.  however  pp.  188-189  below. 

2  Goldschmidt,  p.  276,  note  139. 

8  Kohler,  "Zivilrecht"  in  Holtzendorff's  Encyklopadie  der  Rechts- 
wissenschaft,  ed.  1904,  I,  p.  598.  Kohler  quotes  from  and  refers  to  many 
Italian  authorities  of  the  12-14th  century  on  representation.  Among 
them  St.  Como  (A.  D.  1232).  "Tantum  valeat  et  prosit  illi,  ad  cujus 
partem  vel  cujus  nomine  facta  est  vel  recepta,  ac  si  illam  cartam  vel 
contractum  vel  obligationem  recepisset." 

St.  of  Brescia,  regulation  of  A.  D.  1252  in  St.  of  1313.  "  Quod  ex  omni 
contractu  inito  et  facto  nomine  alterius,  tarn  de  mercato  quam  de  aliis 
rebus,  acquiratur  actio  et  acquisita  sit  illi  vel  illis,  quorum  vel  cujus 
nomine  contractus  sive  promissio  factus  est  vel  facta." 

*  Bartolus.  "  Secundum  consuetudinem  et  fere  totius  Italiae  —  litteris 
mercatorum  unus  nominatur  nomine  proprio  et  omnes  alii  nomine  appel- 
lative, hoc  modo:  Titius  et  socius  talis  societatis,"  quoted  by  Gold- 
schmidt,  p.  276,  note  137. 


188  P.     COMMERCIAL    LAW 

-  ___^ _ __  JfUf 

mercantur  ad  invicem."  1  In  doubtful  cases  the  books  of  the 
firm  were  consulted.2  But  general  notoriety  and  the  books 
of  the  firm  were  not  found  sufficient  either  to  protect  the 
general  public  against  partners  who  denied  the  partnership 
altogether  or  who  asserted  that  the  partnership  had  been 
dissolved,  or  to  protect  merchants  from  a  general  liability 
for  all  the  debts  of  a  trader  with  whom  they  occasionally  com- 
bined for  the  purpose  of  a  common  speculation.  Dissolution 
of  partnerships  was  to  be  valid  only  if  effected  "  per  instru- 
mentum  publicum."  "  If  any  one  practising  in  the  Calimala 
craft,"  says  a  Florentine  gild  statute  of  1301,  "  or  having 
a  share  in  any  *  societas  '  of  that  craft  has  renounced  or  shall 
renounce  it  in  the  future,  such  renunciation  shall  not  be  valid 
nor  be  admitted  by  the  consuls,  unless  he  shall  show  that  he 
withdrew  from  that  firm  by  means  of  a  public  document,  and 
the  consuls  shall  have  that  document  published  throughout 
the  whole  craft."  Registration  of  partners  became  usual; 
from  the  14th  century  onwards  such  registers  were  kept  not 
merely  by  the  gilds  but  by  the  city  authorities ;  and  the  regis- 
tration required,  as  a  rule,  "  the  direct  intervention  either 
personally  or  by  special  procuration  of  all  the  members  of 
the  firm."  3 

It  has  been  stated  that  one  partner  could  represent  the 
rest  and  make  contracts  binding  upon  the  whole  firm,  and  that 
this  was  an  advance  upon  the  principles  of  Roman  and  Ger- 
manic law,  which  only  recognised  representation  to  a  limited 
degree.  But  though  a  single  partner  could  thus  represent 
the  firm,  originally  it  was  as  a  rule  only  in  virtue  of  special 
procuration  that  he  was  privileged  so  to  do.  In  the  medieval 
contracts  of  partnership  the  partners  often  gave  one  another 
by  procuration  the  right  to  represent  and  bind  the  firm.  In 
the  absence  of  such  clauses  in  the  contract  creditors  of  the 
firm  for  a  debt  contracted  by  an  individual  partner  could  in 
some  places  only  make  good  their  claim  against  the  firm  as 

1St.  Mutinae,  1327,  quoted  among  others  by  Goldschmidt,  276,  notes 
140  and  141. 

2  St.  of  Calimala  of  Florence,  Lb.  ii.  rubric  43.    "  8i  quis  .  .  .  librum 
corporis  sue  societatis  celavit  vel  celaverit  ita  quod  haberi  et  videri  non 
possit  quod  sit  sotii  (sic)   dicte  societatis."    Cf.  Lattes,  p.  174,  note  59 
and  p.  283. 

3  Lattes,  p.  162  and  note  68. 


56.     MITCHELL:  PARTNERSHIP  189 

a  whole,  if  the  debt  had  been  recognised  as  a  debt  of  the  firm, 
as  by  entry  in  the  firm's  book,  or  employment  of  the  money 
or  goods  for  the  common  purposes  of  the  firm.  Simply  in  his 
capacity  as  partner  a  merchant  had  not  everywhere  in  the 
early  centuries  of  the  Middle  Ages  a  right  to  bind  his  copart- 
ners. "  Whoever  in  the  city  or  district  of  Florence,"  declares 
a  Florence  gild  regulation  of  the  year  1236,  "  has  sold  cloth 
or  other  things  pertaining  to  trade  to  any  one  of  this  gild 
cannot  seek  nor  sue  for  the  money  or  price  of  the  sale  from 
any  of  the  partners  of  the  buyer,  or  from  any  one  of  his  firm, 
unless  the  money  shall  be  found  written  in  the  books  of  the 
buyer's  firm  as  payable  for  the  price  of  that  sale."  1  Similarly 
the  gild  statute  of  Verona  for  the  year  1318  required  the  tacit 
consent  of  the  other  partners  or  an  express  promise  on  their 
part  to  pay  —  "nee  praejudicet  etiam  stando  in  statione  et 
essendo  socius  palam ;  dummodo  non  esset  praesens  cum  socio 
ad  accipiendam  mercandiam  et  non  promitteret  de  solvendo 
earn." 

As  late  as  the  15th  century  the  jurist  Alexander  Tartagnus 
denies  the  responsibility  of  the  other  partners,  unless  the  con- 
tract had  been  made  with  full  powers  "  nomine  societatis."  2 
Slowly  however  the  principle  gained  ground  that  a  partner 
had  as  partner  the  right  to  make  contracts  binding  upon  his 
firm.  In  all  probability  this  change  was  due  to  the  frequency 
with  which  the  individual  partner  was  entrusted  with  this 
power  by  special  procuration.  Thus  in  one  of  the  Marseilles 
documents  of  the  13th  century  which  have  been  already  re- 
ferred to,  two  partners  concede  full  powers  to  the  third. 
"  Nos  Dietavivo  Alberto  et  Guidaloto  Guidi,  Senenses  faci- 
mus,  constituimus,  ordinamus,  Bellinchonum  Charrenconi, 
consocium  nostrum,  absentem,  nostrum  certum  et  generalem 

*St.  of  Calimala,  1301,  Lb.  ii.  rubric  19.  The  date  1236  is  given  in 
the  rubric. 

2  Goldschmidt,  281,  note  154.  Goldschmidt  gives  many  quotations  from 
and  references  to  city  and  gild  statutes,  inter  alia  St.  of  Calimala  Gild 
(1341).  "E  niuno  mercantante  di  questa  arte  possa  obligare  in  Firenze 
o  nel  distretto  la  sua  compagnia  o  alcuno  compagno  della  sua  compagnia 
—  se  non  in  debiti  o  cose  che  f ossono  scritte  nel  libro  o  libri  della  sua 
compagnia,  o  se  almeno  due  o  piu  de'  compagni  non  fossono  insieme  a 
tale  obligazione  fare,  o  se  non  avese  in  ci6  speciale  o  generate  procura- 
zione  e  mandato  da'  suoi  compagni." 


190  V.     COMMERCIAL    LAW 

procuratorem  in  omnibus  nostris  negotiis  peragendis,  .  .  . 
promittentes  nos  ratum  perpetuo  habitaturos  quicquid  cum  eo 
vel  per  eum  actum  fuerit  in  praemissis,  sub  obligacione  om- 
nium bonorum  meorum  praesentium  et  futurorum."  l  Such 
procurations  were  exceedingly  common,2  and  the  great  Cali- 
mala  Gild  of  Florence  went  so  far  as  to  instruct  (1301)  all 
its  members  when  they  sent  any  one  abroad  to  transact  busi- 
ness to  provide  them  with  a  special  or  general  procuration. 
The  result  was  that  in  actual  practice  the  partner  did  have 
power  to  bind  the  firm,  and  that  gradually  this  power  was 
regarded  as  a  matter  of  course.  During  the  14th  and  15th 
centuries  numerous  Italian  statutes  recognised  the  responsi- 
bility of  the  other  partners  for  the  debts  and  contracts  made 
by  an  individual  member  of  the  firm.  But  both  the  doctrine 
of  the  great  civil  jurists  and  the  decisions  of  isolated  commer- 
cial courts  were  long  opposed  to  this  new  view  of  the  position 
of  the  partner.  Thus  the  decisions  of  the  "  Rota  of  Genoa  " 
only  go  so  far  as  to  say  that  whatever  is  written  by  one  of 
them  having  the  "  facultas  "  of  using  the  name  of  the  firm 
is  said  to  be  written  by  the  firm  itself,  while  another  decision 
declares  most  plainly  that  such  "  facultas  "is  not  to  be  taken 
as  a  matter  of  course.  By  the  17th  century  however  the 
power  of  an  individual  partner,  though  without  special  pro- 
curation, to  act  in  the  name  of  his  firm  was  admitted  by  the 
civil  jurists.3  The  unlimited  liability  of  the  partner  for  the 
debts  of  the  firm  was,  like  the  right  of  the  partner  as  partner 
to  represent  the  firm,  of  gradual  growth,  and  was  not  in  the 
early  centuries  of  the  Middle  Ages  universally  enforced  by 
the  law.4  In  medieval  contracts  unlimited  liability  was  indeed 
often  stipulated  and  was  in  some  places  a  maxim  of  the  law : 
in  the  fairs  of  Champagne,  for  example,  the  unlimited  respon- 
sibility of  partners  was  under  certain  conditions  expressly 
recognised ;  the  "  usage  of  the  fairs  "  declared  that  a  partner 
"  oblige  tous  leurs  biens  (i.  e.  the  partners)  pour  cause  de 
1'administration  qu'il  a  et  qu'il  semble  avoir,  et  plus,  se  aulcun 

1Blancard,  op.  cit.,  no.  115. 

^ 2  See  numerous  quotations  and  references  in  Goldschmidt,  p.  282,  note 
155. 

3  De  Luca,  De  Camb.,  disc.  29,  nos.  3,  4,  quoted  Goldschmidt,  p.  283. 

4  Goldschmidt,  pp.  284  and  288  and  note  159. 


56.  MITCHELL:  PARTNERSHIP     191 

des  compaignons  se  boute  en  franchise  ou  destourne  ses  biens 
ou  les  biens  de  sa  compagnye,  il  est  oblige  et  tout  li  autre 
compaignon  qui  paravant  cette  fuite  ou  tel  destournement 
des  biens  n'estoient  obligez  en  corps  et  en  biens  par  la  cous- 
tume,  stille  et  usaige  des  foires  notoires."  l  It  was  not  how- 
ever till  towards  the  close  of  the  16th  century  that  the 
solidarity  of  partners  was  in  Italy  generally  recognised. 
"  Only  gradually  and  without  the  support  of  positive  law 
the  liability  of  every  partner  '  in  solidum '  came  through 
mercantile  usage  to  be  enforced  in  statutes  and  judicial 
decisions.  This  liability  was  repeatedly  recognised  in  the 
decisions  of  Genoa.  Since  that  time  it  was  never  a  matter 
of  doubt,"  2  and  in  the  17th  century  the  jurist  Ansaldus  who, 
as  auditor  of  the  Roman  Rota,  must  have  had  a  thorough 
acquaintance  with  judicial  decisions  in  commercial  cases, 
recognised  this  unlimited  liability  and  declared  that  in  the 
first  place  the  creditor  had  recourse  to  the  capital  of  the  firm, 
and  only  in  the  second  place  could  he  avail  himself  of  the 
unlimited  liability  of  the  individual  partner. 8 

The  commenda  and  the  societas  had  an  independent  origin 
and  an  independent  development.  Originally  the  commenda 
was  a  purely  speculative  enterprise,  confined  mainly  at  first 
to  maritime  trade  in  which  one  partner  found  all  or  most  of 
the  capital  and  the  other  traded  in  his  own  name.  The 
societas  on  the  other  hand  had  its  root  in  the  more  perma- 
nent association  of  the  family  or  of  persons  who  had  full 
confidence  in  each  other  for  the  purpose  of  carrying  on,  in 
common,  industrial  and  commercial  enterprises  in  city  or 
town.  Both  extended  the  scope  of  their  application,  com- 
mendas  were  formed  for  inland  trade  and  partnerships  of 
the  collective  type  for  maritime  commerce.  Each  however 
developed  on  its  own  lines.  In  the  commenda,  where  from 
the  first  the  capitalist  must  have  as  a  rule  remained  un- 
known to  the  merchants  who  traded  with  the  active  part- 
ner, the  limited  liability  of  the  capitalist  and  the  unlim- 

1  Goldschmidt,  285,  note  160. 

8Endemann,  Studien  in  der  romanisch-kanonistischen  Wirtschafts- 
und  Rechtslehre,  vol.  i.  p.  395. 

8  Endemann,  op.  cit,,  pp.  395-6  and  55,  56. 


192  P.     COMMERCIAL    LAW 

ited  liability  of  the  active  partner  were  before  long  firmly 
established,  while  in  the  open  "  societas  *'  the  right  of  the 
individual  partner  to  represent  and  bind  the  firm  on  the  one 
hand,  and  on  the  other  his  unlimited  liability  for  its  debts, 
were  finally  recognised.  Both  types,  modified  in  points  of 
detail,  have  passed  into  modern  commercial  life.  If  the  com- 
menda  has  developed  into  the  "  Societe  en  commandite,"  the 
"  societas "  has  its  historical  counterpart  in  the  modern 
"  Societe  en  nom  collectif  "  and  the  Offene  Gesellschaft. 

A  third  type  of  partnership,  that  of  joint-stock  companies 
with  the  capital  in  the  shape  of  freely  alienable  shares,  with 
a  liability  limited  to  the  amount  of  capital  represented  by  the 
share,  and  with  an  administrative  governing  body  composed 
of  shareholders  in  which  the  majority  decided,  was  in  process 
of  formation  during  the  Middle  Ages. 

To  the  origin  of  this  type  of  partnership  many  causes  con- 
tributed, but  the  decisive  cause  was  the  growth  of  colonial 
enterprises  in  Italy  in  the  15th  century,  and  in  Holland, 
France  and  England  in  the  16th  and  17th  centuries.  A  recent 
German  writer l  has  attributed  a  great  influence  upon  the 
birth  and  development  of  these  companies  to  a  peculiar  form 
of  partnership  with  limited  liability  that  in  shipping  enter- 
prises was  common  both  in  Northern  and  Southern  Europe 
during  the  earlier  part  of  the  Middle  Ages.  At  Amalfi,  for 
example,  in  the  llth  century  the  owners,  the  captain,  and 
even  the  common  sailors  all  had  a  share  in  the  profits  of  the 
voyage  and  formed  an  association  whose  liability  was  strictly 
limited.2  But  it  can  hardly  be  said  that  the  adoption  of  this 
peculiar  form  of  partnership  had  a  great  influence  upon  the 
formation  of  joint-stock  enterprises.  No  doubt  it  offered  an 
example  of  a  partnership  with  limited  liability,  but  so  did  the 
far  more  common  commenda ;  and  the  essence  of  a  joint-stock 
company  does  not  consist  in  the  principle  of  limited  respon- 
sibility, but  rather  in  the  prolongation  of  the  corporate  exist- 

1Lehmann,  Geschichtliche  Entwickelung  des  Aktienrechts  (1895).  Dag 
Recht  der  Aktiengesellschaften  (1898). 

See  Thaller,  La  Soctttt  par  Actions  dans  VAncienne  France,  pp.  14, 
15.  Thaller,  Traitt  fiMmentaire  de  Droit  Commercial,  p.  163  note. 

3  Wagner,  Seerecht,  pp.  8,  9.    Thaller,  SocUU  par  Action,  p.  15. 


56.     MITCHELL:  PARTNERSHIP  193 

ence  and  organisation  of  the  company  beyond  the  life  of  its 
members  and  in  the  free  negotiability  of  the  shares. 

Of  greater  influence  were  the  public  loans 1  raised  by 
Italian  cities  during  the  13th  and  following  centuries.  The 
loans  were  divided  into  shares  (luoghi)  and  the  names  of  the 
owners  were  registered  in  special  books.  The  shares  not 
only  passed  to  the  heirs  in  case  of  the  owner's  death,  but 
could  be  freely  bought  and  sold ;  and  as  negotiable  shares, 
even  though  they  cannot  in  any  sense  be  regarded  as  shares 
in  a  commercial  speculation,  they  showed  the  keen  commercial 
mind  of  the  Italian  an  expedient  that  might  be  adopted  for 
raising  capital  for  commercial  as  well  as  for  military  pur- 
poses. It  was  in  Genoa  that  the  first  joint-stock  companies 
arose.  To  cover  the  cost  of  the  conquest  of  Chios  and 
Phocaea  (1346)  a  loan  was  raised  by  the  Genoan  state  and 
as  usual  was  divided  into  shares  of  100  lires,  and  the  share- 
holders were  given  the  "  dominium  utile  "  of  the  conquered 
lands.  This  Colonial  company,  incorporated  with  the  bank 
of  St.  George  in  1513,  continued  to  exploit  the  resources 
of  the  two  islands  until  their  conquest  by  the  Turks  in  the 
16th  century.  Far  more  important  however  was  the  found- 
ing of  the  great  bank  of  St.  George  in  1407  when  the  various 
state  loans  were  consolidated  into  a  single  state  debt.  As 
security  for  the  interest  the  city  granted  important  privi- 
leges to  the  holders  of  the  new  consolidated  stock,  which  was 
divided  into  shares  of  100  lires.  The  stockholders  were 
granted  the  right  (1408)  to  carry  on  banking  business,  and 
especially  after  1453  the  administration  and  exploitation  of 
important  Genoan  colonies  passed  into  their  hands.  The 
creditors  of  the  Genoan  state  had  become  the  shareholders  of 
a  great  colonial  company  which  ultimately  governed  and 
administered  Corsica,  Kaffa  and  the  greater  part  of  the 
foreign  dominions  of  Genoa.2 

Colonial  expansion  in  England,  France  and  Holland  led, 
though  much  later,  to  the  creation  of  companies  similar  to 
that  of  Genoa.  The  Compagnie  des  lies  d'Amerique,  which 
seems  to  be  the  earliest  example  in  France,  was  created  in 

1  Fertile,  II,  i.  pp.  508-510.     Goldschmidt,  292. 
» Fertile,  II,  i.  p.  509. 


194  V.     COMMERCIAL    LAW 

1626  and  was  rapidly  followed  by  others  of  the  same  type.1 
The  Dutch  East  India  Company  (1602)  was  but  little 
earlier.  In  England  the  East  India  Company  2  received  a 
royal  charter  in  the  opening  year  of  the  17th  century.  At 
first  the  company  could  hardly  be  considered  as  a  joint-stock 
company;  for  in  the  early  years  of  its  history  the  voyages 
were  separate  and  not  necessarily  permanent  ventures  of  the 
subscribers,  who  contributed  varying  amounts  to  the  capital 
required  for  the  expedition  and  received  a  proportionate 
share  of  the  proceeds  when  the  expedition  returned.  A  share- 
holder in  one  of  the  early  expeditions  might  or  might  not 
be  a  shareholder  in  the  next.  In  1613  the  first  so-called 
joint-stock  was  subscribed;  but  the  term  is  misleading;  it 
was  not  a  subscription  of  permanent  capital.  As  late  as  the 
middle  of  the  17th  century  subscribers  wished  to  carry  on  sep- 
arate trade  in  ships  of  their  own,  but  the  company  protested 
and  in  1654  a  decision  of  the  council  of  state  was  given 
"  in  favour  of  joint-stock  management  and  exclusive  trading." 
It  would  seem  that  joint-stock  companies  took  their  rise 
owing  to  colonial  expansion  in  Italy  at  the  close  of  the  Middle 
Ages,  and  had  spread  to  Holland,  France  and  England  by 
the  17th  century.  The  history  of  the  development3  and  of 
the  gradual  extension  of  this  form  of  partnership  from 
projects  of  colonisation  to  commercial  undertakings  of  every 
kind  and  variety  lies  outside  the  scope  of  this  essay.  But  it 
is  interesting  to  note  that  that  system  of  partnership  that 
now  controls  most  of  the  great  commercial  and  industrial 
enterprises  of  modern  life,  that  has  popularised  and  democrat- 
ised capital  and  enabled  the  savings  of  the  people  as  a  whole 
to  be  applied  to  commercial  speculations,  great  and  small, 
of  every  kind,  and  that  has  changed  the  whole  nature  of  com- 
mercial finance,  was  in  its  origin  the  outcome  of  state  neces- 
sities and  of  colonial  expansion. 

1Viollet,  op.  cit.,  p.  767.  Thaller,  Society  par  Actions,  p.  5,  says  "on 
ne  doit  pas  remonter  plus  haut  que  le  regne  de  Henri  IV.":  but  he  gives 
no  example  for  this  earlier  date. 

z  Article  on  East  India  Company  in  Palgrave's  Dictionary  of  Political 
Economy. 

Levi,  History  of  British  Commerce,  pp.  233,  337  and  note. 

8  Especially  interesting  seems  the  combination  of  the  commenda  with 
the  new  form  as  seen  in  the  Commandite  par  actions. 


n 

57.     THE  HISTORY  OF  THE  LAW  OF  BUSINESS 

CORPORATIONS   BEFORE   1800 x  ^f 

i^ 

t 

BY  SAMUEL  WLLLISTON  2  /£ 


THE  most  striking  peculiarity  found  on  first  examination 
of  the  history  of  the  law  of  business  corporations  is 
the  fact  that  different  kinds  of  corporations  are  treated 
without  distinction,  and,  with  few  exceptions,  as  if  the  same 
rules  were  applicable  to  all  alike.  Subdivisions  into  special 
kinds  are  indeed  made,  but  the  classification  is  based  on  dif- 
ferences of  fact  rather  than  on  differences  in  legal  treatment. 
Thus,  corporations  are  divided  into  sole  and  aggregate. 
Again,  they  are  divided  into  ecclesiastical  and  lay,  and  lay 
corporations  are  again  divided  into  eleemosynary  and  civil. 
But  the  division  having  been  made,  the  older  authors  3  pro- 
ceed to  treat  them  all  together,  now  and  then  recording 
some  minor  peculiarity  of  a  corporation  sole  or  of  an  eccle- 
siastical corporation  with  one  member  capable. 

Municipal  and  business  corporations,  so  unlike  according 
to  modern  ideas,  are  classed  together  as  civil  corporations, 
and  treated  together  along  with  the  rest.  Yet  the  East 
India  Company  was  chartered  in  1600,  and  other  trading 

*This  Essay  was  first  published  in  the  Harvard  Law  Review,  1888, 
vol.  II,  pp.  105-124,  149-166,  and  has  been  revised  by  the  author  for  this 
Collection. 

2  Weld  Professor  of  Law  in  Harvard  University.  A.  B.  1882,  A.  M., 
LL.  B.  1888,  Harvard  University;  draftsman  of  acts  on  Bills  of  Sale, 
etc.,  for  the  National  Conference  of  Commissioners  on  Uniform  State 
Laws,  1905-1908. 

Other  Publications:  Cases  on  Contracts,  1894;  Cases  on  Sales,  3d  ed. 
1905;  and  various  articles  in  law  journals. 

8 E.g.,  Coke,  in  Sutton's  Hospital  Case,  10  Rep.  1,  The  Law  of 
Corporations,  1  Blacks.  Com.  ch.  xviii.,  Kyd  on  Corporations. 


196  V.     COMMERCIAL    LAW 

companies  had  been  chartered  even  earlier,  and  between  1600 
and  1800  numerous  corporations  were  chartered,  having  for 
their  objects,  trade,  fishing,  mining,  insurance,  and  other 
business  purposes.  To  understand  how  it  was  that  the  law 
of  business  corporations  was  so  connected  with  that  of  other 
corporations,  and  how  it  gradually  became  distinguished,  it 
is  necessary  to  understand  how  such  corporations  grew  up, 
and  in  what  way  they  were  regarded  when  first  they  came 
into  existence. 

The  general  idea  of  a  corporation,  a  fictitious  legal  person, 
distinct  from  the  actual  persons  who  compose  it,  is  very  old. 
Blackstone  ascribes  to  Numa  Pompilius  the  honor  of  origi- 
nating the  idea.1  Angell  and  Ames  are  of  the  opinion  that 
it  was  known  to  the  Greeks,  and  that  the  Romans  borrowed 
it  from  them.2  Sir  Henry  Maine,  however,  shows  that  prim- 
itive society  was  regarded  by  its  members  as  made  up  of 
corporate  bodies,  that  the  units  "  were  not  individuals  but 
groups  of  men  united  by  the  reality  or  the  fiction  of  blood 
relationship,"  and  that  the  family,  clan,  tribe,  were  recog- 
nized as  distinct  entities  of  society  before  individuals  were.3 
It  is  not  surprising,  therefore,  to  find  in  the  Roman  law  the 
conception  of  corporate  unity  early  developed.  Savigny,  in 
whose  treatise  4  may  be  found  the  best  connected  account  of 
corporations  in  the  Roman  law,  states  that  villages,  towns, 
and  colonies  were  the  earliest.  "  But  once  established  defi- 
nitely for  dependent  towns,  the  institution  of  the  legal  person 
was  extended  little  by  little  to  cases  for  which  one  would 
hardly  have  thought  of  introducing  it.  Thus,  it  was  applied 
to  the  old  brotherhoods  of  priests  and  of  artisans;  then,  by 
way  of  abstraction,  to  the  State,  which,  under  the  name  of 
fiscus,  was  treated  as  a  person  and  placed  within  the  juris- 
diction of  the  court.  Finally,  to  subjects  of  a  purely  ideal 
nature,  such  as  gods  and  temples."  Savigny  then  enumerates 
the  different  kinds  of  corporations  among  the  Romans.  The 
present  subject  is  concerned  with  but  one  of  these,  —  the 
business  associations.  "To  this  class  belong  the  old  cor- 

1 1  Blacks.  Com.  468. 

2  Angell  and  Ames  on  Corp.  (1st  ed.). 

3  Ancient  Law  (4th  ed.),  183. 

4  System  des  heutigen  romischen  Rechts,  vol.  ii.  §  86  et  seq. 


57.     WILLISTON:    BUSINESS  CORPORATIONS   197 

porations  of  artisans  who  always  continued  to  exist,  and  of 
whom  some,  the  blacksmiths,  for  example,  had  particular 
privileges ;  also  new  corporations,  such  as  the  bakers  of 
Rome,  and  the  boatmen  at  Rome  and  in  the  provinces.  Their 
interests  were  of  the  same  nature,  and  this  served  as  the 
basis  of  their  association,  but  each  one  worked,  as  to-day, 
on  his  own  account." 

"  There  were  also  business  enterprises  carried  on  in 
common  and  under  the  form  of  legal  persons.  They  were 
ordinarily  called  societates.  Their  nature  was,  in  general, 
purely  contractual;  they  incurred  obligations,  and  they 
were  dissolved  by  the  will  as  well  as  by  the  death  of  a  single 
member.  Some  of  them  obtained  the  right  of  being  a  cor- 
poration, keeping  always,  however,  the  name  of  societates. 
Such  were  the  associations  for  working  mines,  salt-works, 
and  for  collecting  taxes." 

This  latter  kind  of  corporation  seems  never  to  have  become 
sufficiently  numerous  or  important  to  exert  a  definite  influ- 
ence on  the  law.  Perhaps  the  Romans  were  not  a  sufficiently 
commercial  people  to  develop  the  uses  of  business  corpora- 
tions. In  common  with  other  associations  the  authorization 
of  the  supreme  power  of  the  State  was  needed  to  constitute 
them  legal  persons,  though  this  might  be  given  by  tacit 
recognition ; 2  and  the  assent  of  the  sovereign  was  equally 
necessary  for  dissolution.  Three  members  were  requisite  for 
the  formation  of  a  corporation,  though  not  for  its  continued 
existence.  The  rights  and  duties  of  the  fictitious  person 
corresponded  closely  to  those  of  an  actual  person,  so  far  as 
the  nature  of  the  case  admitted.  It  could  hold  and  deal  with 
property,  enjoy  usufructus,  incur  obligations,  and  compel 
its  members  to  contribute  to  the  payment  of  its  debts,  inherit 
by  succession  either  testamentary  or  by  patronage,  and  take 
a  legacy.  Whether  it  could  commit  a  tort  was  a  disputed 
question. 

1Savigny,  System  etc.,  §  88. 

2  Blackstone  is,  therefore,  in  error  in  saying  (1  Com.  472)  that  by  the 
civil  law  the  voluntary  association  of  the  members  was  sufficient  unless 
contrary  to  law  —  an  error  probably  caused  by  the  fact  that  penalties 
were  imposed  on  certain  forbidden  associations  in  the  nature  of  clubs 
for  acting  without  the  authorization  of  the  State,  and  only  on  these. 


198  V.     COMMERCIAL    LAW 

After  the  introduction  of  Christianity  the  church  found 
numerous  applications  in  its  own  organization  for  the  doc- 
trines which  had  been  developed  in  regard  to  corporations, 
and  through  the  church  and  its  officials  these  doctrines 
strongly  influenced  the  law  of  England,  where  they  were 
applied  to  the  existing  associations. 

The  earliest  corporate  associations  in  England  seem  to 
have  been  peace-guilds,  the  members  of  which  were  pledged  to 
stand  by  each  other  for  mutual  protection.1  Such  brother- 
hoods would  naturally  be  formed  by  neighbors  or  by  those 
exercising  similar  occupations.  From  the  tendency  to  asso- 
ciate on  account  of  proximity  of  residence  were  developed 
municipal  corporations ;  from  the  tendency  to  associate  on 
account  of  similarity  of  occupation  the  craft  guilds  grew. 
These  two  classes  of  corporations  were  the  earliest  regularly 
chartered  lay  corporations  in  England.  Both  of  them  had 
their  counterparts  in  the  Roman  law.2  At  first  sight  they 
do  not  seem  to  have  much  in  common,  but  the  ancient  munic- 
ipal corporation  differed  from  its  modern  descendant.  It 
was  a  real  association,  and  membership  could  not  be  ac- 
quired simply  by  residing  within  the  town  limits.  It  exer- 
cised a  minute  supervision  over  the  inhabitants,  —  among 
other  things  regulating  trades.  The  guilds  or  companies 
did  the  same  thing,  only  on  a  more  restricted  scale.  They 
made  by-laws  governing  their  respective  trades,  which  were 
not  simply  such  regulations  as  a  modern  trade-union  might 
make,  since  any  one  carrying  on  a  trade,  though  not  a 
member  of  the  guild  of  that  trade,  was  bound  by  its  by-laws, 
so  long  as  they  were  not  opposed  to  the  law  of  the  land  or 
to  public  policy  as  it  was  then  conceived.3  In  short,  the 
guilds  exercised  a  power  similar  to  that  exercised  by  the 
municipal  corporations,  and,  indeed,  so  late  as  the  time  of 
Henry  VI.  guildated  and  incorporated  were  synonymous 
terms.4  Instead  of  having  for  its  field  all  inhabitants  of  a 

^ee  History  of  Guilds,  Luigi  Brentano. 

2  For  an  account  of  guilds  at  Rome  see  "  Les  Societ6s  Ouvrieres  a 
Rome,"  96  Rev.  des  Deux  Mondes,  626,  by  Gaston  Boissier. 

3  Butchers'  Company  v.  Morey,  1  H.  Bl.  370;  Kirk  v.  Nowill,  1  T.  R. 
118. 

*Madox,  Firma  Burgi,  29. 


£7.     WILLISTON:    BUSINESS  CORPORATIONS  199 

district  and  local  legislation  of  every  character,  the  guild  was 
confined  to  such  inhabitants  of  the  district  as  carried  on  a 
certain  trade  and  to  regulations  suitable  for  that  trade.  So 
far  as  that  trade  was  concerned  the  right  of  government 
belonged  to  the  guild. 

The  first  trades  to  become  organized  in  this  way  were 
naturally  the  manual  employments  necessary  to  provide  the 
community  with  the  most  fundamental  necessities  of  civilized 
life.  The  weavers  were  the  earliest.  They  received  a  charter 
from  Henry  II. ,  "  with  all  the  freedom  they  had  in  the  time 
of  Henry  I."  The  goldsmiths  were  chartered  in  1327,  the 
mercers  in  1373,  the  haberdashers  in  1407,  the  fishmongers 
in  1433,  the  vintners  in  1437,  the  merchant  tailors  in  1466.1 

During  the  sixteenth  century  the  growth  of  the  commer- 
cial spirit,  fostered  by  the  recent  discovery  of  the  New  World, 
the  more  thorough  exploration  of  the  Southern  Atlantic  and 
Indian  Oceans,  and  the  search  for  a  North-west  passage, 
led  to  the  establishment  and  incorporation  of  companies  of 
foreign  adventurers,  similar  in  all  respects  to  the  earlier 
guilds,  except  that  their  members  were  foreign  instead  of 
domestic  traders.  Among  the  earliest  of  these  were  the 
African  Company,  the  Russia  Company,  and  the  Turkey 
Company.2  The  last  two  were  called  "  regulated  com- 
panies ; "  that  is,  the  members  had  a  monopoly  of  the  trade 
to  Russia  and  to  Turkey,  but  each  member  traded  on  his 
own  account. 

A  more  famous  company  was  chartered  by  Queen  Elizabeth 
in  1600,  under  the  name  of  the  Company  of  Merchants  of 
London,  trading  to  the  East  Indies.3  It  had  been  found  that 
the  expense  incident  to  fitting  out  ships  for  voyages,  often 
taking  several  years  for  their  completion,  was  too  great  to 
be  borne  easily  by  individual  merchants,  and  it  was  one  of  the 
claims  to  favorable  consideration  which  the  East  India  Com- 
pany put  forward,  that  "  noblemen,  gentlemen,  shopkeepers, 


1 1  And.  Hist,  of  Commerce,  250. 

2  Knight's  Hist,  of  England,  vol.  v.  39. 

8  What  follows  in  regard  to  the  East  India  Company  is  based  on 
"The  History  of  European  Commerce  with  India,"  by  David  Macpher- 
Bon,  London,  1812,  and  documents  therein  quoted. 


200  V.     COMMERCIAL    LAW 

widows,  orphans,  and  all  other  subjects  may  be  traders,  and 
employ  their  capital  in  a  joint  stock." 

Sums  of  various  amounts  were  subscribed,  and  the  profits 
were  to  be  distributed  in  the  same  proportions.  This  joint- 
stock  adventure  was  not,  however,  identical  with  the  cor- 
poration. Members  of  the  corporation  were  not  necessarily 
subscribers  to  the  joint  stock,  and  any  member  could,  if  he 
liked,  carry  on  private  trade  with  the  Indies,  —  a  privilege 
belonging  exclusively  to  members.  By  the  charter,  appren- 
tices and  sons  of  members  were  to  be  admitted  to  membership 
in  the  same  way  as  was  customary  in  the  guilds. 

The  East  India  Company  was,  therefore,  in  its  early  days, 
like  the  other  trading  companies,  - —  an  association  of  a  class 
of  merchants  to  which  was  given  the  monopoly  of  carrying 
on  a  particular  trade,  and  the  right  to  make  regulations  in 
regard  to  it.  Till  1614  the  joint  stock  was  subscribed  for 
each  voyage  separately,  and  at  the  end  of  the  voyage  was 
redivided.  After  that,  for  many  years,  the  joint  stock  was 
subscribed  for  a  longer  or  shorter  term  of  years,  and  at  the 
end  of  each  term  the  old  stock  was  usually  taken  at  a  valu- 
ation by  the  new  subscribers.  Membership  in  the  corpora- 
tion, however,  soon  became  merely  a  formal  matter,  —  useless, 
except  to  those  interested  in  the  joint  stock,  especially  as 
regulations  were  passed  forbidding  other  members  from  en- 
gaging in  private  trading  ventures  to  India.  After  169£ 
no  private  trading  of  any  kind  was  allowed  except  to  the 
captains  and  seamen  of  the  Company's  ships.  The  form, 
however,  was  still  retained,  and  every  purchaser  of  stock 
who  was  not  a  member  of  the  Company  was  obliged  to  pay 
a  fee  of  £5  for  membership. 

At  this  time  (1692)  there  were  but  two  other  joint-stock 
companies  of  any  importance  in  England,  —  the  Royal  Afri- 
can Company  and  the  recently  chartered2  Hudson's  Bay 
Company.  The  outline  given  above  will  serve  to  indicate 
their  general  nature  and  also  to  show  how  something  like 
the  modern  joint-stock  corporation  grew  out  of  the  union 

1  From  the  defence  of  the  Company  in  the  Privy  Council,  2  And.  Hist. 
Com.  173. 
•  1670. 


57.     WILLISTON:    BUSINESS  CORPORATIONS  201 

of  the  ideas  of  association  for  the  government  of  a  particular 
trade  by  those  who  carried  it  on,  and  of  combination  of 
capital  and  mutual  cooperation,  suggested  and  made  neces- 
sary by  the  great  expense  incident  to  carrying  on  trade  with 
distant  countries.  But  the  corporation  was  far  from  being 
regarded  as  simply  an  organization  for  the  more  convenient 
prosecution  of  business.  It  was  looked  on  as  a  public  agency, 
to  which  had  been  confided  the  due  regulation  of  foreign 
trade,  just  as  the  domestic  trades  were  subject  to  the  govern- 
ment of  the  guilds.  In  a  little  book,  entitled  "  The  Law  of 
Corporations,"  published  anonymously  in  1702,1  it  is  said: 
"  The  general  intent  and  end  of  all  civil  incorporations  is 
for  better  government,  either  general  or  special.  The  cor- 
porations for  general  government  are  those  of  cities  and 
towns,  mayor  and  citizens,  mayor  and  burgesses,  mayor  and 
commonalty,  etc.  Special  government  is  so  called  because  it 
is  remitted  to  the  managers  of  particular  things,  as  trade, 
charity,  and  the  like,  for  government,  whereof  several  com- 
panies and  corporations  for  trade  were  erected,  and  several 
hospitals  and  houses  for  charity."  2 

This  idea  that  the  object  of  a  business  corporation  is  the 
public  one  of  managing  and  ordering  the  trade  in  which  it  is 
engaged,  as  well  as  the  private  one  of  profit  for  its  members, 
may  also  be  noticed  in  the  charters  granted  to  new  corpora- 
tions, especially  in  the  recitals,  and  in  the  provisions  usually 
found  that  the  newly  chartered  company  shall  have  the  ex- 
clusive control  of  the  trade  intrusted  to  it. 

At  the  end  of  the  seventeenth  century  the  advantages  of 
corporate  enterprises  seem  to  have  been  realized,  and  acts 
of  Parliament,  authorizing  the  king  to  grant  charters  to 
various  business  associations,  were  more  frequent.  In  1692 
the  Company  of  Merchants  of  London  trading  to  Greenland 
was  incorporated ; 3  the  act  reciting  the  great  importance 
of  the  Greenland  trade,  how  it  had  fallen  into  the  hands  of 

*This  is  the  first  English  book  wholly  devoted  to  the  subject  of  cor- 
porations; with  the  exception  of  a  small  volume  by  William  Shepheard, 
published  in  1659  in  London,  entitled:  Law  of  Corporations,  Fraternities, 
and  Guilds. 

'Law  of  Corporations,  p.  2. 

•  4  and  5  Wm.  III.,  c.  IT. 


202  V.     COMMERCIAL    LAW 

other  nations,  and  could  only  be  regained  by  a  greater  under- 
taking than  would  be  possible  for  a  private  individual,  and 
the  consequent  necessity  of  a  joint-stock  company.  In  1694 
the  Bank  of  England  received  its  first  charter.1  The  act 
authorizing  it  was  essentially  a  scheme  to  raise  money  for 
the  government.  Those  who  advanced  money  to  the  govern- 
ment were  to  receive  a  corresponding  interest  in  the  bank, 
the  capital  of  which  was  to  consist  of  the  debt  of  the  govern- 
ment. No  other  association  of  more  than  six  persons  was 
allowed  to  carry  on  a  similar  business.2  Charters  were  also 
granted  about  this  time  to  the  National  Land  Bank,3  the 
Royal  Lustring  Company,4  the  Company  of  Mine  Adven- 
turers,5 the  famous  South  Sea  Company,6  the  Royal  Ex- 
change and  the  London  (Marine)  Assurance  Companies.7 
In  these  charters  also  the  public  interest  in  having  the  under- 
taking prosecuted  and  the  great  expense  incident  thereto  are 
mentioned.  The  capital  of  the  South  Sea  Company,  like  that 
of  the  Bank,  consisted  of  a  debt  due  from  the  government 
on  account  of  money  loaned  by  private  individuals. 

The  extravagant  commercial  speculations  in  joint-stock 
companies  and  the  stock- jobbing  in  their  shares  which  char- 
acterized the  early  part  of  the  eighteenth  century  are  well 
known.  Anderson,  in  his  "  History  of  Commerce," 8  enu- 
merates upwards  of  two  hundred  companies  formed  about 
the  year  1720,  for  the  prosecution  of  every  kind  of  enter- 
prise, including  one'  for  the  "  Insurance  and  Improvement 
of  Children's  Fortunes,"  and  another  for  "  Making  Salt 
Water  Fresh."  With  very  few  exceptions,  these  companies 
were  not  incorporated,  and  in  1720  writs  of  scire  facias  were 
issued,9  directing  an  inquiry  as  to  their  right  to  carry  on 
business,  in  usurpation  of  corporate  powers.  This  put  a 
sudden  end  to  many  of  these  unfortunate  ventures,  and  the 

1 5  and  6  Wm.  III.,  c.  31. 

2  By  Stat.  6  Anne,  c.  22,  §  9. 

3  7  and  8  Wm.  III.,  c.  31. 

4  9  and  10  Wm.  III.,  c.  43. 
6  See  9  Anne,  c.  24. 

6  9  Anne,  c.  21. 

7  6  Geo.  I.,  c.  18. 

8  9  Vol.  I,  (1st  ed.)  291  et  seq. 

9  And.  Hist.  Com.,  Vol.  II,  296. 


57.     WILLISTON:    BUSINESS  CORPORATIONS  203 

consequent  collapse  of  the  enormously  inflated  public  credit 
carried  down  others,  so  that  only  four  of  the  long  list  were 
still  in  existence  when  Anderson  wrote,  —  the  York  Buildings 
Company,  the  two  Assurance  Companies  mentioned  above, 
and  the  English  Copper  Company.  The  speculation  in 
shares  had  been  too  great  and  the  expectations  of  profit 
too  extravagant  not  to  cause  a  correspondingly  great  dis- 
trust in  corporate  enterprises  when  the  bubble  burst,  and  the 
profits  realized  were  found  to  be  small  and  extremely  variable. 
Adam  Smith,  writing  in  1776  was  of  opinion  l  that  "  the  only 
trades  which  it  seems  possible  for  a  joint-stock  company  to 
carry  on  successfully  without  an  exclusive  privilege,  are 
those  of  which  all  the  operations  are  capable  of  being  reduced 
to  what  is  called  routine,  or  to  such  a  uniformity  of  method 
as  admits  of  little  or  no  variation.  Of  this  kind  is,  first,  the 
banking  trade;  secondly,  the  trade  of  insurance  from  fire, 
and  from  sea  risk  and  capture  in  time  of  war ;  thirdly,  the 
trade  of  making  and  maintaining  a  navigable  cut  or  canal; 
and,  fourthly,  the  similar  trade  of  bringing  water  for  the 
supply  of  a  great  city."  To  render  the  establishment  of  a 
joint  stock  reasonable,  however,  the  author  says,  two  other 
circumstances  should  concur :  first,  "  that  the  undertaking 
is  of  greater  and  more  general  utility  than  the  greater  part 
of  common  trades ;  and,  secondly,  that  it  requires  a  greater 
capital  than  can  easily  be  collected  into  a  private  copartnery." 

But  during  the  latter  part  of  the  eighteenth  century  cor- 
porations were  gradually  increasing  in  number  and  import- 
ance. The  need  for  them  was  felt  in  establishing  canals, 
water-works,  and,  to  some  extent,  in  conducting  the  growing 
manufactures  of  the  kingdom.  The  progress  was  indeed 
slow,  and  was  destined  to  be  so  until  the  introduction  of  gas- 
lighting  into  all  the  larger  cities  and  towns  early  in  the  pres- 
ent century,  and  later  the  laying  of  railways,  created  a  wide- 
spread necessity  for  united  capital. 

The  outline  sketch  just  given  of  the  growth  of  business 
corporations  shows  that  they  are  not  a  spontaneous  product, 
but  are  rather  the  result  of  a  gradual  development  of  earlier 

1  Wealth  of  Nations,  book  V,  ch.  I,  art.  5. 


204  V.     COMMERCIAL    LAW 

institutions,  running  back  farther  than  can  be  traced.  It 
would  be  strange  if  signs  of  this  development  were  not  found 
in  the  history  of  the  law  relating  to  them.  The  natural 
expectation  would  be,  and  such  is  in  fact  the  case,  that  as  to 
the  points  which  modern  business  corporations  have  in  com- 
mon with  the  early  guilds  and  municipalities,  the  law  relating 
to  them  dates  back  farther  than  almost  any  other  branch  of 
the  law,  while  as  to  the  points  which  belong  exclusively  to  the 
conception  of  the  business  corporation,  the  law  has  been 
formed  very  largely  since  1800.  And  not  only  had  a  body 
of  new  law  to  be  thus  formed,  but  old  doctrines  laid  down 
by  early  judges  as  true  of  all  corporations,  though  in  reality 
suited  only  to  the  kinds  of  corporations  then  existing,  had  to 
be  discarded  or  adapted  to  changed  conditions. 

In  the  first  place,  then,  the  endeavor  will  be  to  examine  the 
points  which  belong  essentially  to  every  kind  of  corporation, 
and  afterwards  to  consider  what  was  settled  before  the  present 
century  in  regard  to  the  peculiar  relations  arising  from  the 
nature  of  a  business  corporation. 

In  the  case  of  Sutton's  Hospital,1  decided  in  1612,  the 
general  law  of  corporations  was  considered  at  some  length, 
and  the  following  things  were  said  to  be  "  of  the  essence  of 
a  corporation:2  1st,  Lawful  authority  of  incorporation,  and 
that  may  be  by  four  means,  viz.,  by  the  common  law,  as  the 
king  himself,  etc. ;  by  authority  of  Parliament ;  by  the  king's 
charter;  and  by  prescription.  The  2d,  which  is  of  the 
essence  of  the  incorporation,  are  persons  to  be  incorporated, 
and  that  in  two  manners;  viz.,  persons  natural,  or  bodies 
incorporate  and  political.  3d,  A  name  by  which  they  are 
incorporated.  4th,  Of  a  place,  for  without  a  place  no  in- 
corporation can  be  made.  5th,  By  words  sufficient  in  law, 
but  not  restrained  to  any  certain,  legal,  and  prescript  form 
of  words." 

This,  then,  was  the  mould  in  which  every  corporation  had 
to  be  cast,  regardless  of  what  might  be  its  nature  or  its 
purpose. 

The  first  requirement,  due   authorization,  existed  in   the 

1 10  Rep.  22  b. 
2 10  Rep.  29  b. 


57.     WILLISTON:    BUSINESS  CORPORATIONS  205 

Roman  law  as  well  as  in  the  English.1  But,  since  corporate 
bodies  were  recognized  as  facts  from  the  earliest  dawn  of 
history,  when  the  rule  became  recognized  that  the  authority 
of  the  supreme  power  of  the  State  was  necessary  for  their 
formation,  a  theory  had  to  be  found  to  support  the  old 
associations,  which  had  not  been  formed  in  accordance  with 
the  rule.  This  was  done  both  in  Roman  and  in  English  law 
by  recognizing  that  a  corporation  could  come  into  existence 
by  prescription.  It  is  safe  to  say,  however,  that  prescriptive 
and  common-law  corporations  were  of  the  older  forms  only, 
and  that  for  the  formation  of  business  corporations,  from  the 
first,  a  charter  from  the  king  directly  or  by  authority  of 
Parliament  was  necessary. 

Originally  the  power  was  exercised  exclusively  by  the  king ; 
but  his  power  to  grant  charters  allowing  exemptions  or 
monopolies  was  gradually  restricted,  like  many  of  his  other 
powers,  as  little  by  little  the  House  of  Commons  assumed  the 
entire  effective  control  of  the  government.  The  regulated 
Russia  Company  received  its  charter  from  the  crown  in 
1555  without  the  consent  of  Parliament;  so  did  the  East 
India  Company  in  1600,  the  Canary  Company  in  1665,  the 
Hudson  Bay  Company  in  1670.  All  of  these  companies  were 
given  monopolies.  The  rights  of  the  Russia  Company  and 
of  the  East  India  Company  were  afterwards  regulated  by 
statute;  and  the  patent  of  the  Canary  Company  was  soon 
withdrawn,  though  not  before  giving  rise  to  a  test  case  2  on 
the  validity  of  the  monopoly,  in  which  the  court  decided 
against  it.  The  Hudson's  Bay  Company  continued  to  enjoy 
its  charter  without  interference,  but  its  right  to  a  monopoly 
held  good  so  long  only  as  nobody  cared  to  dispute  it.  After 
the  Revolution,  no  doubt,  it  was  tacitly  admitted  that  for  the 
validity  of  a  charter  conferring  a  monopoly  or  other  special 
privilege  an  act  of  Parliament  was  necessary,  though  for 
granting  the  simple  franchise  of  acting  as  a  corporation  the 
patent  of  the  king  was  sufficient. 

The  last  of  the  requisites  enumerated  by  Coke  may  be 
regarded  as  included  within  the  first.  "  Lawful  authority 

1See  supra,  p.  196. 

2  Home  v.  Ivy,  1  Ventr.  47. 


206  V.     COMMERCIAL    LAW 

of  incorporation "  must  necessarily  be  given  "  by  words 
sufficient  in  law."  The  necessity  for  persons  to  compose  the 
corporation  results  from  the  nature  of  things  rather  than 
from  any  rule  of  law.  Perhaps  the  same  may  be  said  of  the 
importance  of  a  name.  As  an  actual  person  could  hardly 
transact  business  or  sue  and  be  sued  in  the  courts  without 
a  name,  so  the  fictitious  person  of  a  corporation  rests  under 
a  similar  necessity.  Possibly  Coke  meant  something  more, 
regarding  a  corporation  as  an  abstraction  which  would  have 
no  existence  without  a  name.  "  For  a  corporation  aggregate 
of  many  is  invisible,  immortal,  and  rests  only  in  intendment 
and  consideration  of  the  law."  l  But  if  such  was  his  view, 
it  was  not  shared  by  his  successors,  when  the  tinge  of  scholas- 
ticism which  colored  all  the  law  of  the  period  faded  away. 
In  the  case  of  the  Dutch  West  India  Company  v.  Van  Moses,2 
decided  in  1724,  it  was  held  that  the  action  was  well  brought, 
though  no  certain  name  had  been  given  the  company  by  the 
Dutch  States,  the  name  being  that  by  which  it  was  usually 
called;  and  there  are  numerous  cases  to  the  effect  that  a 
technical  misnomer  of  a  corporation  had  even  less  effect  than 
the  misnomer  of  an  individual.3 

When  Coke  wrote,  it  seems  to  have  been  necessary  that  a 
corporation  should  be  named  as  of  a  certain  place.4  This 
requirement,  apparently  so  fanciful,  is  explained  by  the  fact 
that  the  early  corporations  were  almost  all  formed  for  local 
or  special  government  of  some  kind,  and  it  was  consequently 
necessary  to  designate  the  place  where  the  jurisdiction  was 
to  be  exercised.  The  requisite  must  very  early  have  become 
merely  formal  in  case  of  certain  classes  of  corporations,  and 
might  be  fictitious.  Thus,  such  names  may  be  found  as 
"  The  Hospital  of  St.  Lazarus  of  Jerusalem  in  England  "  and 
"The  Prior  and  Brothers  of  St.  Mary  of  Mt.  Carmel  in 
England."  As  the  purpose  for  which  corporations  were 

button's  Hospital  Case,  10  Rep.  32. 

21  Stra.  612;  and  see  the  Law  of  Corporations,  13.  Also,  if  the  name 
of  a  corporation  be  changed,  it  retains  its  possessions,  debts,  etc.  Bishop 
of  Rochester's  Case,  Owen,  73;  s.  c.  2  And.  107;  Luttrel's  Case,  4  Rep. 
87  b;  Mayor  of  S.  t>.  Butler,  3  Lev.  237;  Haddock's  Case,  1  Ventr.  355. 

8 1  Kyd,  236  et  seq. 

4  Button  v.  Wrightman,  Cro.  Eliz.  338. 

6  Rol.  512. 


57.     WILLISTON:    BUSINESS  CORPORATIONS  207 

instituted  became  more  varied,  and  the  modes  of  thought 
of  lawyers  became  more  reasonable,  less  stress  was  laid  on 
the  formality  under  consideration.  It  is  hardly  mentioned 
in  "  The  Law  of  Corporations  "  or  in  Blackstone's  chapter. l 
Kyd  merely  says,  "  It  is  generally  denominated  of  some 
place ;  "  2  and  it  may  be  assumed  as  true  of  business  corpora- 
tions, as  well  as  of  most  others,  that  before  the  beginning 
of  the  present  century  there  was  no  force  in  Coke's  fifth 
essential  for  the  existence  of  a  corporation  other  than  as  a 
matter  of  convenience.8 

Grant,  now,  that  a  corporation  was  legally  called  into 
being,  what  abilities  and  disabilities  was  it  considered  to 
have?  Coke  says:4  "When  a  corporation  is  duly  created 
all  other  incidents  are  tacitly  annexed  —  ...  and  therefore 
divers  clauses  subsequent  in  the  charters  are  not  of  necessity, 
but  only  declaratory  and  might  well  be  left  out ;  as  — 

"  1st.  By  the  same  to  have  authority,  ability,  and  capac- 
ity to  purchase,  but  no  clause  is  added  that  they  may  alien, 
etc.,  and  it  need  not,  for  it  is  an  incident. 

"  2d.     To  sue  and  be  sued,  implead  and  be  impleaded. 

"  3d.  To  have  a  seal ;  that  is  also  declaratory,  for  when 
they  are  incorporated  they  may  make  or  use  what  seal  they 
will. 

"  4th.  To  restrain  them  from  aliening  or  devising  but  in 
certain  form;  that  is  an  ordinance  testifying  the  king's 
desire,  but  it  is  but  a  precept  and  does  not  bind  in  law. 

"  5th.  That  the  survivors  shall  be  a  corporation ;  that 
is  a  good  clause  to  oust  doubts  and  questions  which  might 
arise,  the  number  being  certain. 

"  6th.  If  the  revenues  increase,  that  they  shall  be  used  to 
increase  the  number  of  the  poor,  etc. ;  that  is  also  explana- 
tory. 

"  8th.  To  make  ordinances  ;  that  is  requisite  for  the  good 
order  and  government  of  the  poor,  etc.,  but  not  to  the  es- 
sence of  the  incorporation. 

1  Blacks.  Com.  ch.  xviii. 
91  Kyd,  228. 

8  See  Mayor  of  Stafford  v.  Bolton,  1  B.  &  P.  40. 
*  Button's  Hospital  Case,  10  Rep.  30,  citing  as  authority  22  Edw.  IV., 
Grants,  30. 


208  V.     COMMERCIAL    LAW 

"  10th.  The  license  to  purchase  in  mortmain  is  necessary 
for  the  maintenance  and  support  of  the  poor,  for  without 
revenues  they  cannot  live,  and  without  a  license  in  mortmain 
they  cannot  lawfully  purchase  revenues,  and  yet  that  is  not 
of  the  essence  of  the  corporation,  for  the  corporation  is  per- 
fect without  it." 

This  list  of  attributes  laid  down  by  Coke  as  necessarily 
belonging  to  all  corporations  is  quoted  with  approval  in 
"  The  Law  of  Corporations."  1  It  is  given  by  Blackstone 
in  substance,  though  altered  to  the  following  form : 2  — 

The  incidents  which  are  tacitly  annexed  to  every  corpora- 
tion as  soon  as  it  is  duly  erected  are  — 

"  1st.  To  have  perpetual  succession.  This  is  the  very 
end  of  its  incorporation,  for  there  cannot  be  a  succession 
forever  without  an  incorporation,  and  therefore  all  aggre- 
gate corporations  have  a  power  necessarily  implied  of  elect- 
ing members  in  the  room  of  such  as  go  off. 

"  2d.  To  sue  or  be  sued,  implead  or  be  impleaded,  grant  or 
receive,  by  its  corporate  name,  and  do  all  other  acts  as 
natural  persons  may. 

"  3d.  To  purchase  lands  and  hold  them  for  the  benefit 
of  themselves  and  their  successors,  which  two  are  consequential 
of  the  former. 

"  4th.      To  have  a  common  seal.  .  .  . 

"  5th.  To  make  by-laws  or  private  statutes  for  the  better 
government  of  the  corporation,  which  are  binding  on  them- 
selves, unless  contrary  to  the  law  of  the  realm,  and  then 
they  are  void." 

The  enumeration  of  Blackstone  is  given  without  substantial 
alteration  by  Kyd, 3  though  he  adds  that  the  last  two  powers 
are  unnecessary  for  a  corporation  sole,  and  that  the  right 
to  make  by-laws  is  not  inseparably  incident  to  all  kinds  of 
corporations  aggregate,  for  there  are  some  to  which  rules 
may  be  prescribed;  and,  further,  that  the  list  is  not  ex- 
haustive. The  first  three  capacities  are  reducible  to  this,  that 
the  fictitious  person  of  the  corporation  shall  have,  in  general, 

*P.  16. 

*1  Blackst.  Com.  475;  also  in  Wood's  Inst.  of  the  Laws  of  Eng.,  bk. 
I,  ch.  VIII. 

3  Vol.  i.  p.  60. 


57.     WILL1STON:    BUSINESS  CORPORATIONS  209 

the  capacity  of  acting  as  an  actual  person,  so  far  as  the 
nature  of  the  case  admits.  Such  must  have  been  the  recog- 
nized law  ever  since  corporations,  as  we  understand  the  word, 
existed ;  for  the  conception  of  a  corporation  as  a  legal  person, 
a  conception  going  back  farther  than  can  be  definitely  traced, 
involves  necessarily  the  consequence  that  before  the  law  the 
corporation  shall  be  treated  like  any  other  person.  To  this 
consequence  there  is  a  necessary  exception  in  regard  to  such 
rights  and  duties  as  require  an  actual  person  for  their  sub- 
ject. 

The  right  and  the  necessity  of  having  a  corporate  seal  was 
probably  in  its  origin  simply  the  result  of  treating  a  corpora- 
tion in  the  same  way  as  an  individual.  The  great  antiquity 
of  the  custom  of  using  seals  is  well  known.  It  prevailed 
among  the  Jews  and  Persians,1  as  well  as  among  the  Romans. 
It  was  spread  over  all  the  countries  whose  systems  of  law 
were  borrowed  from  the  Romans,  and  it  was  introduced  into 
England  by  the  Normans. 2 

In  England,  owing  to  the  generally  prevailing  illiteracy, 
the  use  of  the  seal  became  the  ordinary  way  of  indicating  the 
maker  of  a  charter.  The  practice,  apparently,  was  not  the 
result  of  a  desire  for  peculiar  solemnity,  but  merely  for 
identification.  The  use  and  object  of  a  corporate  seal  may 
be  assumed  to  have  been  the  same  as  of  an  individual  seal. 
It  is  true  that  Blackstone3  finds  a  reason  for  its  use  in  the 
fact  that  "  a  corporation,  being  an  invisible  body,  cannot 
manifest  its  intentions  by  any  personal  act  or  oral  discourse ; 
it  therefore  acts  and  speaks  only  by  its  common  seal."  But 
this  reason,  besides  bearing  on  its  face  indications  of  having 
been  invented  after  the  fact,  goes  altogether  too  far.  A 
corporation  has  no  hand  with  which  to  affix  its  seal,  and  if 
it  may  perform  that  act  by  an  agent,  there  is  no  reason  in 
the  nature  of  things  why  it  should  not  do  anything  else  by 
the  same  instrumentality.4  And  in  the  Roman  law  the  use 


1 Q  Blackst.  Com.  305 ;  Genesis,  xxxviii.  18 ;   Esther,  viii.  8 ;   Jeremiah, 
xxxii.  10. 

*2  Blackst.  Com.  306. 

•1  Com.  475. 

*1  Blackst.  Com.  (Sharswood's  ed.)  475,  n.  7. 


210  V.     COMMERCIAL    LAW 

of  a  common  seal  was  only  a  possible,  not  a  necessary,  way 
for  a  corporation  to  act. 

When  writing  became  a  general  accomplishment,  the  use 
of  a  seal  for  private  documents  was  reserved  for  instruments 
of  a  peculiarly  formal  or  solemn  character.  That  a  similar 
transition  did  not  take  place  in  the  use  of  the  seal  of  a  cor- 
poration may  be  ascribed  to  the  natural  conservatism  of  a 
number  of  men  acting  in  a  body,  and  to  the  fact  that  from 
the  character  of  early  corporations  the  inconvenience  of 
sealing  all  corporate  contracts  was  not  likely  to  be  felt.  How- 
ever this  may  be,  it  was  a  rule  of  law  well  settled  before 
business  corporations  came  into  existence  that  a  corporation 
could  only  act  by  deed  under  its  common  seal.  To  the  rule 
some  slight  exceptions  were  allowed,  but  only  in  few  cases. 
Such  a  restriction  could  not  fail  to  be  extremely  embarrass- 
ing to  corporations,  when  they  afterwards  sprang  up,  the 
object  of  which  was  to  carry  on  trade;  and  the  development 
of  the  law  on  this  point  in  regard  to  such  corporations  shows 
not  so  much  a  growth  of  legal  doctrine,  as  an  endeavor  to 
do  away  with  the  inconvenient  restraint  imposed  on  all  aggre- 
gate corporations,  which  had  its  origin  when  guilds  and 
municipal  and  ecclesiastical  associations  were  the  only  cor- 
porate bodies,  —  an  endeavor  that  met  with  but  indifferent 
success. l 

The  general  rule  seems  to  have  been  well  settled  in  the 
fifteenth  century,  and  it  also  appears  that  there  were  some 
slight  exceptions  to  it.2  Just  what  these  were,  was  by  no 
means  definitely  marked  out.  In  Y.  B.  4  Hy.  VII.  17  b,  one 
of  the  judges,  Townsend,  said:  "A  body  corporate  cannot 
make  a  feoffment  or  lease  or  anything  relating  to  their  in- 
heritance without  deed,  but  of  offices  and  things  which  per- 
tain to  servants  they  can.  For  they  can  appoint  plowmen 
and  servants  of  husbandry  without  deed,  and  butlers  and 
cooks  and  things  of  that  kind,  and  can  depute  their  servants 
to  do  anything  without  deed.  They  can  do  this  because  it 
is  not  in  disinheritance  of  the  corporation,  but  only  by  way 
.of  service,  and  it  is  the  common  course  to  justify  by  com- 

1  Taylor  on  Evidence  (8th  ed.),  §  976  et  seq. 

1  Y.  Bks.  9  Edw.  IV.  39,  4  Hy.  VII.  17  b,  7  Hy.  VII.  9. 


57.     WILLISTON:    BUSINESS  CORPORATIONS  211 

mand  of  the  body  corporate,  and  not  show  anything  from 
it."  Brian,  however,  was  of  a  contrary  opinion,  saying,  "  A 
body  corporate  can  do  none  of  those  things  without  deed." 
Townsend's  opinion  undoubtedly  made  more  sweeping  excep- 
tions than  were  afterwards  allowed,  but  his  statement  that 
a  corporation  could  appoint  a  cook  or  butler  without  a  deed 
was  for  centuries  cited  as  indicating  the  extent  of  the  power 
of  acting  without  using  the  corporate  seal. 1  In  Y.  B.  7  Hy. 
VII.  9,  it  was  held  that  the  defendant  in  an  action  of  trespass 
could  not  justify  as  acting  for  a  corporation  without  showing 
authority  by  deed.  Wood  adds :  "  But  of  little  things  the 
law  is  otherwise,  for  it  would  be  infinite  if  each  little  act  was 
by  deed,  as,  a  command  to  their  servants,  to  light  a  candle 
in  church,  or  to  make  a  fire,  or  such  things."  With  this  the 
court  with  one  exception  agreed.  This  statement  of  the  law 
is  based  on  a  principle  which  continued  to  be  decisive  in  the 
eighteenth  as  in  the  sixteenth  century.  In  transactions  which 
from  their  nature  could  be  done  under  seal  only  with  great 
inconvenience,  the  formality  of  sealing  was  dispensed  with. 
The  inconvenience  might  arise  from  the  pettiness  of  the  act, 
or  from  its  being  of  every-day  occurrence  and  necessity,  or 
from  the  importance  of  immediate  action.  The  exception 
was  wrested  by  common  sense  from  the  scope  of  the  rule. 

Accordingly,  when  business  corporations  arose,  it  must 
have  been  tacitly  admitted  that  the  daily  business  need  not 
all  be  transacted  under  seal.  For  instance,  the  bills  of  the 
Bank  and  of  the  East  India  Company  were  never  sealed. 
The  right  to  make  such  bills  was  afterward  defended  and 
explained  as  necessarily  implied  in  the  powers  given  them  by 
Parliament.  These  corporations  "  could  not  carry  on  their 
business  without  the  making  of  such  instruments,  and  they 
would  cease  to  be  bills  or  notes  if  under  seal.  It  is  clear, 
however,  that  this  indulgence  is  not  allowed  by  law  to  be 
extended  beyond  cases  of  absolute  necessity."2 

A  more  difficult  point  was  raised  in  1717,  in  the  case  of 

JHorne  v.  Ivy,  1  Vent.  47;  Dunston  v.  Imp.  Gas  Co.,  3  B.  &  Ad.  125, 
129;  Tilson  v.  Warwick  Gas  Co.,  4  B.  &  C.  962,  964. 

2  East  London  Waterworks  Co.  v.  Bailey,  12  Moore,  532;  s.  c.  4  Bing. 
283;  and  see  Edie  v.  E.  I.  Co.,  2  Burr.  1216,  where  assumpsit  was  brought 
against  the  Company  on  a  bill  of  exchange,  without  objection. 


212  V.     COMMERCIAL    LAW 

Rex  v.  Bigg,1  the  leading  case  before  the  present  century 
on  the  extent  to  which  a  business  corporation  could  act  with- 
out the  use  of  its  seal.  Bigg  was  charged  with  felony  in 
altering  a  bank-note  signed  by  one  Adams,  an  officer  of  the 
bank.  It  was  objected  that  Adams  did  not  have  authority 
under  the  seal  of  the  bank  to  affix  his  name,  and  that  conse- 
quently the  altered  instrument  was  not  a  valid  obligation, 
and  the  prisoner  was  not  guilty  of  forgery.  The  argument 
of  Peere  Williams  for  the  prisoner  is  fully  given,  and  the 
cases  which  he  cites  seem  to  bear  him  out  in  his  contention 
that  such  an  agent  could  not  be  appointed  without  deed; 
but  a  majority  of  the  Court  held  the  prisoner  guilty  of 
felony.  No  opinion  is  given.  It  must  be  admitted  that  the 
decision  involved  some  extension  of  the  old  rule  that  a  cook 
or  butler  or  servant  for  some  petty  purpose  could  be  retained 
without  a  sealed  instrument,  but  after  this  the  law  was  settled 
that  the  regular  servants  and  agents  of  a  business  corporation 
were  to  be  regarded  in  a  similar  way. 2 

But,  granting  this,  how  far  could  an  agent  of  such  a 
corporation  act  in  its  behalf  without  a  deed?  As  mentioned 
above,  a  corporation,  the  charter  of  which  authorized  it  to 
carry  on  a  business  that  required  for  its  proper  exercise  the 
issue  of  bills  and  notes,  did  not  need  to  affix  the  common  seal 
to  such  obligations.  Undoubtedly,  also,  a  large  amount 
of  routine  business  was  transacted  entirely  by  parol,  and 
there  is  no  case  reported  where  a  transaction  executed  on 
both  sides  was  set  aside  because  the  corporation  did  not  act 
by  deed.  But,  for  the  rest,  it  may  at  least  be  said  that  till 
after  the  first  quarter  of  the  present  century  had  passed, 
no  unsealed  executory  contract  was  binding  on  either  party ; 3 
and  it  is  probable,  also,  that  in  a  partially  executed  trans- 
action no  special  agreement  was  valid  without  seal.  On  the 
other  hand,  if  the  transaction  was  such  as  of  itself  gave  rise 
to  an  obligation,  it  could  be  enforced;  forfeitures  and  tolls 
could  be  recovered  in  assumpsit ;  4  if  land  were  demised  with- 

1 3  P.  Wms.  419. 

2Bac.  Abr.,  tit.  Corporation  (E)  3;  1  Kyd  on  Corp.  26. 
sEast  London  Waterworks  v.  Bailey,  12  Moore,  532;  s.  c.  4  Bing.  283. 
'The  Barber  Surgeons  v.  Pelson,  2  Lev.  252;    Mayor  of  London  v. 
Hunt,  3  Lev.  37;  and  see  Parbury  v.  Bank  of  England,  2  Doug.  524, 


57.     WILLISTON:    BUSINESS  CORPORATIONS  213 

out  deed,  and  the  lessee  occupied  the  premises,  he  was  liable 
for  rent  in  an  action  for  use  and  occupation ;  and  similarly, 
no  doubt,  if  goods  were  bought  or  sold  by  a  corporation  and 
delivery  was  made,  the  vendee  could  have  been  forced  to 
return  or  pay  for  them. 1 

The  courts  were  sometimes  able  to  mitigate  the  hardships 
which  followed  from  the  necessity  of  doing  everything  under 
seal,  by  presuming,  as  a  matter  of  pleading,  that  when 
performance  by  a  corporation  was  averred,  performance  with 
all  necessary  formalities  was  intended,2  and  partial  relief  was 
given  in  special  instances  by  act  of  Parliament ; 3  but  at  best 
it  would  be  hard  to  find  a  more  striking  instance  of  a  rule 
of  law  which  arose  from  the  customs  prevailing  in  an  entirely 
different  state  of  society  still  maintaining  itself  when  every 
reason  for  its  existence  had  ceased,  and  its  only  effect  was  to 
produce  injustice. 

The  right  to  pass  by-laws  for  the  regulation  of  their  af- 
fairs belonged  to  corporations  in  the  Roman  law4  from  a 
very  early  period,  and  also  in  the  English  law.  Indeed,  the 
right  is  a  consequence  almost  necessarily  following  from  the 
nature  of  the  early  corporations.  Institutions  to  which  were 
delegated  powers  of  government,  whether  ecclesiastical  or 
secular,  whether  exercised  over  all  within  a  certain  locality 
or  confined  to  those  practising  a  particular  trade,  must  have 
been  allowed  appropriate  means  of  exerting  their  authority, 
and  the  scope  of  the  by-laws  must  have  been  proportioned 
to  the  jurisdiction.  Thus,  the  by-laws  of  a  corporate  town 
were  binding  on  any  one  who  came  within  its  limits.6  The 
by-laws  of  a  guild  were  binding  not  on  its  members  only, 
but  on  such  outsiders  as  exercised  the  trade  which  the  guild 

where,  at  the  suggestion  of  Lord  Mansfield,  a  special  action  of  assumpsit 
was  brought  on  account  of  the  bank's  refusal  to  transfer  stock  on  the 
books. 

*E.  I.  Co.  v.  Glover,  1  Stra.  612. 

2  Edgar  v.  Sorell,  Cro.  Car.  169 ;  Tilson  v.  Warwick  Gas  Co.,  4  B.  & 
C.  962;  Rex  v.  Bigg,  3  P.  Wms.  419. 

*E.g.,  11  Geo.  I.  c.  30,  §  43,  which  allowed  the  two  insurance  com- 
panies recently  chartered  to  make  use  of  the  freer  pleading  in  vogue 
in  the  action  of  assumpsit  when  sued  on  their  policies,  which  were  under 
seal. 

*Dig.  xlvii.  22,  lex  4. 

5Cuddon  v.  Eastwick,  1  Salk.  193,  pi.  5. 


214  V.     COMMERCIAL    LAW 

governed  and  regulated.1  The  power  of  making  by-laws 
would  be  useless  without  means  of  enforcing  them,  and  the 
imposition  of  penalties  for  failure  to  comply  with  its  by-laws 
was  within  the  power  of  a  corporation,  from  an  indefinite 
time.2  The  farther  back  the  examination  is  carried  the 
broader  seems  to  have  been  the  power, of  punishing  the  re- 
fractory, extending  by  special  charter  in  many  cases  to 
imprisonment  as  well  as  fine.3  By  Coke's  time,  however,  it 
was  settled  that  the  power  of  imprisonment  could  not  be  given 
by  letters-patent  from  the  king,  but  required  an  act  of  Par- 
liament ;  4  and  it  was  further  held  that  similar  authority  was 
needed  for  a  by-law  affixing  as  a  penalty  the  forfeiture  of 
goods ; 5  but  that  such  by-laws  were  formally  valid  may  be 
inferred  from  the  fact  that  this  mode  of  enforcement  was 
sometimes  supported  as  being  in  accordance  with  an  imme- 
morial custom.6  Further  limitations  on  the  power  of  making 
by-laws,  which  were  more  strictly  construed  as  time  went  on, 
were  that  they  must  not  be  contrary,  nor  even  cumulative, 
to  the  statutes  of  Parliament,7  nor  in  restraint  of  trade,8  nor 
unreasonable.9  Business  corporations,  when  they  arose,  were 
dealt  with  according  to  the  same  principles.  As  it  was  well 
recognized  that  such  by-laws  only  could  be  made  as  were  in 
harmony  with  the  objects  for  which  the  corporation  was 
created,10  and  as  the  purposes  for  which  business  corporations 
were  chartered  were  as  a  rule  definitely  marked  out,  the  scope 
of  the  right  to  make  by-laws  was  correspondingly  narrowed. 
A  few  of  the  earlier  joint-stock  companies  were  intrusted 
with  the  regulation  of  the  trade  in  which  they  were  engaged, 
and  the  by-laws  of  these  were  binding  on  all  engaged  in  the 
trade,  precisely  as  was  the  case  with  guilds.11  But  by  the 

1  Butchers'  Co.  v.  Morey,  1  H.  Bl.  370;    Kirk  v.  Nowill,  1  T.  R.  118. 

2  The  Law  of  Corp.  209. 

3  Grant  on  Corp.  86,  especially  notes  d  and  f . 

«Towle's  Case,  Cro.  Car.  582;  Chancey's  Case,  12  Rep.  83. 

5 8  Rep.  125  a;  Home  v.  Ivy,  1  Ventr.  47;  Clarke  v.  Tuckett,  2  Ventr. 
183;  Nightingale  v.  Bridges,  1  Show.  135. 

6Clearywalk  v.  Constable,  Cro.  Eliz.  110;  Sams  v.  Foster,  Cro.  Eliz. 
352;  s.  c.  Dyer,  297  b. 

7  Grant  on  Corp.  78. 

8  Ibid.  83.         o  Ibid.  80. 

"Child  v.  Hudson's  Bay  Co.,  2  P.  Wms.  207;  2  Kyd  on  Corp.  102. 
11 E.  g.,  the  East  India  Company  in  its  early  days  regulated  the  right 
of  private  trading  with  the  Indies,  and  soon  forbade  it  altogether.     It 


67.     WILLISTON:    BUSINESS  CORPORATIONS  215 

change  in  the  conception  of  a  corporation  from  an  institution 
for  special  government  to  a  simple  instrumentality  for  carry- 
ing on  a  large  business,  the  right  to  pass  by-laws  was  re- 
stricted to  regulations  for  the  management  of  the  corporate 
business.1  Such  regulations,  of  course,  like  the  by-laws  of 
municipal  corporations  and  guilds,  were  void  if  contrary  to 
statutory  or  common  law,  or  if  unreasonable.  Whether  a- 
certain  by-law  was  held  unreasonable  or  not  depended  in 
some  measure  on  the  discretion  of  the  court.  The  decision 
might  be  different  when  judged  by  the  standards  of  the 
eighteenth  century  from  what  it  would  be  if  judged  by 
modern  standards.  Thus,  a  by-law  of  the  Hudson's  Bay 
Company  giving  itself  a  lien  on  its  members'  stock  for  any 
indebtedness  due  from  them  to  the  Company  was  held  valid,2 
the  Court  saying,  "  All  by-laws  for  the  benefit  and  advantage 
of  trade  are  good  unless  such  by-laws  be  unreasonable  or 
unjust;  that  this,  in  their  opinion,  was  neither."  To-day, 
in  a  jurisdiction  unfettered  by  authority,  the  conclusion 
would  probably  be  otherwise.3 

In  addition  to  the  doctrines  which  have  just  been  consid- 
ered, a  few  others  may  be  mentioned  as  applicable  to  all 
corporations  alike.  In  general,  questions  of  rights  and  duties 
towards  the  outside  world  are  much  the  same  for  all  kinds 
of  corporations.  The  law,  it  is  said,  makes  no  personal  dis- 
tinctions, and  it  is  at  least  true  that  wherever  considered 
practicable  the  fictitious  legal  person  of  a  corporation,  what- 
ever its  nature,  was  treated  by  the  law  in  the  same  way  as  an 
actual  person.  On  the  other  hand,  the  law  regulating  the 
relations  of  the  members  to  each  other  and  to  the  united  body 

endeavored  to  enforce  this  rule  against  a  non-member  by  forfeiture  of 
his  vessel.  He  petitioned  the  House  of  Lords,  which  ordered  the  Com- 
pany to  put  in  its  answer.  The  case  finally  resulted  in  a  quarrel  between 
the  Lords  and  the  Commons  as  to  the  right  of  the  former  to  take  juris- 
diction. The  Lords  gave  judgment  for  the  plaintiff,  but  it  was  never 
executed.  Macpherson,  Hist.  127.  See,  also,  Home  v.  Ivy,  1  Ventr.  47. 
Further  illustrations  of  by-laws  of  business  corporations  binding  on 
the  public  may  be  found  in  the  regulations  passed  by  early  canal  and 
railway  companies  in  accordance  with  6  Geo.  IV.  c.  71,  and  8  and  9 
Viet.  c.  20,  §  109. 

1  Child  v.  Hudson's  Bay  Co.,  2  P.  Wms.  207. 

2  Child  v.  Hudson's   Bay  Co.,  2  P.  Wms.  207,  re-argued  sub  nom. 
Gibson  v.  Hudson's  Bay  Co.,  1  Stra.  645;  a.  c.  7  Vin.  Abr.  125. 

8  Lowell,  Transfer  of  Stock,  §  166. 


216 


V.     COMMERCIAL    LAW 


must  differ  according  to  the  nature  and  objects  of  the  cor- 
poration. 

It  has  often  been  questioned  whether  a  corporation  could 
commit  a  tort  or  crime.  The  better  opinion  in  the  Roman 
law  seems  to  have  been  that  the  question  should  be  answered 
in  the  negative,  at  least  whenever  dolus  or  culpa  was  necessary 
to  make  the  act  under  consideration  wrongful.1  In  England, 
however,  it  was  very  early  held  that  corporations  might  be 
liable  in  actions  on  the  case  or  in  trespass,2  and  afterwards 
in  trover.3  But  it  is  not  likely  that  a  corporate  body  would 
have  been  held  liable  for  any  tort  of  which  actual  malice  or 
dolus  was  an  essential  part.  Similarly  it  was  held  that  a 
corporation  could  not  be  guilty  of  a  true  crime,4  that  is,  it 
could  not  have  a  criminal  intent,  but  it  could  be  indicted  for 
a  nuisance  or  for  breach  of  a  prescriptive  or  statutory  duty, 
arid,  in  general,  where  only  the  remedy  was  criminal  in  its 
nature.5 

It  was  generally  laid  down  that  a  corporation  could  not 
hold  in  trust.6  It  is  not  very  clear  exactly  on  what  reason- 
ing the  conclusion  was  based.  There  is  very  little  to  support 
it,  except  in  very  old  cases.  The  view  gradually  became 
obsolete,  and  though  there  was  no  decision  before  the  year 
1800  definitely  deciding  the  point,  it  is  probable  that  it  was 
recognized  before  that  time  that  a  corporation  might  hold 
in  trust.7 


II 

The  fundamental  difference  in  the  constitution  of  business 
corporations  from  the  earlier  forms  which  preceded  them 
is  the  joint-stock  capital,  and  most  of  the  law  peculiar  to  this 
class  of  corporations  relates  to  that  difference,  and  the  conse- 

1Savigny,  System,  §§  94,  95. 

2  See  Grant  on  Corp.  277,  278,  and  notes,  in  which  are  cited  many- 
cases  from  the  Year  Books. 

"Yarborough  v.  Bank  of  England,  16  East,  6. 

4  Anon.,  12  Mod.  559;  that  it  cannot  commit  treason  see  Vin.  Abr., 
Corpor.  Z,  pi:  2. 

5  Grant  on  Corp.  283,  284. 

B  The  authorities  are  collected  in  Gilbert  on  Uses,  5,  170,  and  Sugden's 
note. 

7  See  Atty.-Gen.  v.  Stafford,  Barnard.  Ch.  33. 


57.     WILLISTON:    BUSINESS  CORPORATIONS  217 

quences  which  follow  from  it.  From  motives  of  convenience 
it  early  became  customary  to  divide  the  j  oint  stock  into  shares 
of  definite  amounts.  The  nature  of  the  interest  which  it  was 
conceived  the  holders  of  such  shares  possessed,  and  their 
rights  and  duties  among  themselves  and  against  the  corpora- 
tion, so  far  as  these  were  settled  or  discussed  by  the  courts 
before  the  nineteenth  century,  will  now  be  treated. 

The  most  accurate  definition  of  the  nature  of  the  property 
acquired  by  the  purchase  of  a  share  of  stock  in  a  corporation 
is  that  it  is  a  fraction  of  all  the  rights  and  duties  of  the 
stockholders  composing  the  corporation.1  Such  does  not 
seem  to  have  been  the  clearly  recognized  view  till  after  the 
beginning  of  the  nineteenth  century.  The  old  idea  was  rather 
that  the  corporation  held  all  its  property  strictly  as  a  trustee, 
and  that  the  shareholders  were,  strictly  speaking,  cestuis  que 
trust,  being  in  equity  co-owners  of  the  corporate  prop- 
erty.2 - 

There  are  several  classes  of  cases  illustrating  this  differ- 
ence in  theory.  Thus,  if  the  shareholders  have  in  equity  the 
same  interest  which  the  corporation  has  at  law,  a  share  will 
be  real  estate  or  personalty,  according  as  the  corporate 
property  is  real  or  personal.  If  it  were  personalty,  as  was 
usually  the  case,  no  question  would  arise,  for  then  on  any 
view  the  shares  would  be  personalty  likewise.  Let  it  be  sup- 
posed, however,  that  the  corporate  property  was  real  estate ; 
then,  according  to  the  view  formerly  prevailing,  the  shares 
must  be  devised  and  transferred  according  to  the  statutes 
regulating  the  disposition  of  real  estate ;  they  would  be  sub- 
ject to  the  land  tax;  and,  in  short,  would  have  to  be  dealt 
with  in  the  same  way  as  other  equitable  interests  in  land. 
Exceptions  to  this  general  rule  would  have  to  be  made  if 
special  modes  of  transfer  were  prescribed  by  a  statute  of 
incorporation.  This  was  generally  the  case;  provision  was 
ordinarily  made  that  the  title  to  shares  should  pass  by  trans- 
fer on  the  books,  and  also  that  they  should  be  personal  prop- 
erty. 

1  Lowell,  Transfer  of  Stock,  §  4. 

2 "  The  legal  interest  of  all  the  stock  is  in  the  company,  who  are  trus- 
tees for  the  several  members."  Per  Lord  Macclesfield,  Child  v.  Hudson's 
Bay  Co.,  2  P.  Wms.  207. 


218  V.     COMMERCIAL    LAW 

The  question  arose  several  times  in  regard  to  the  shares 
of  the  New  River  Water  Company.  The  title  to  the  real 
estate  controlled  by  the  company  seems  to  have  been  in  the 
individual  shareholders,  the  company  (which  was  incorpo- 
rated) having  only  the  management  of  the  business.1  It  was 
uniformly  held  that  the  shares  were  real  estate,  that  they  must 
be  conveyed  as  such  inter  vivos,  that  a  will  devising  them  must 
be  witnessed  in  the  same  manner  as  a  will  devising  other  real 
estate,2  and  that  the  heir  and  not  the  personal  representative 
of  a  deceased  owner  was  entitled  to  shares  not  devised. 

The  cases  which  were  thus  decided  were  afterwards  distin- 
guished 3  on  the  ground  that  the  title  to  a  large  part  of  the 
real  estate  was  in  the  corporators,  and  as  to  all  of  it  the  com- 
pany had  no  power  to  convert  it  into  any  other  sort  of 
property,  but  had  simply  the  power  of  managing  it.  The 
distinction,  however,  amounts  to  nothing.  If  the  individual 
proprietors  owned  the  land  and  the  company  controlled  it, 
the  proprietors  had  two  distinct  kinds  of  property.  One  was 
real  estate,  and  the  fact  that  it  was  occupied  by  a  corporation 
was  immaterial;  the  other  was  personalty,  consisting  of  the 
bundle  of  rights  belonging  to  the  shareholders  in  any  cor- 
porate company.  Moreover,  the  decisions  do  not  indicate 
that  they  were  based  on  such  a  distinction.4  It  was  not  until 
the  decision  of  Bligh  v.  Brent,5  in  1836,  that  the  modern 
view  was  established  in  England.  The  contention  of  the  coun- 
sel for  the  plaintiff  in  that  case,  that  the  company  held  the 
corporate  property  as  a  trustee,  and  that  the  interest  of  the 
cestui  que  trust  was  coextensive  with  the  legal  interest  of  the 
trustee,  was  well  warranted  by  the  decisions  which  he  brought 
forward  to  sustain  it.  Indeed,  the  greater  part  of  the  argu- 
ment for  the  defendant  admitted  this,  but  contended  that  real 

*As  to  the  nature  of  the  company  see  Bligh  v.  Brent,  2  Y.  &  C.  268. 

2Drybutter  v.  Bartholomew,  2  P.  Wms.  127;  Townsend  v.  Ash,  3 
Atk.  336;  Stafford  v.  Buckley,  2  Ves.  Sr.  171,  182;  Swaine  v.  Falconer, 
Show.  P.  C.  207;  Sandys  v.  Sibthorpe,  2  Dick.  545. 

3  Bligh  v.  Brent,  2  Y.  &  C.  268,  296. 

4  See  further,  Howse  v.  Chapman,  4  Ves.  542,  where  a  share  in  the 
Bath  navigation   was  held  to   be  real   estate,   and    also   Buckeridge   v. 
Ingram,  2  Ves.  652,  as  to  the  Avon  navigation.    The  latter  company  was 
not,  it  is  true,  incorporated,  but  the  decision  is  not  based  on  that  dis- 
tinction. 

>2  Y.  &C.  268. 


£7.     WILLISTON:    BUSINESS  CORPORATIONS  219 

estate  held  by  a  corporation  for  trading  purposes  should 
be  treated  as  personalty,  like  that  similarly  held  by  a  part- 
nership.1 

It  is  true  that  it  was  decided  in  1781,  in  Weekley  v.  Week- 
ley,2  that  shares  in  the  Chelsea  Water  Works  were  person- 
alty; but  no  reasons  are  given  for  the  decision,  and  it  may 
have  been  based  on  the  facts  that  a  large  part  of  the  property 
of  the  company  was  personalty,8  and  that  the  shares  were 
generally  considered  personalty,  and  dealt  with  as  such. 
Otherwise  the  case  seems  inconsistent  with  the  cases  and 
reasoning  previously  alluded  to. 

In  the  case  of  the  King  v.  The  Dock  Company  of  Hull4 
an  attempt  was  made  to  apply  conversely  the  principle  that 
the  property  of  a  corporation  and  of  its  individual  corpora- 
tors is  the  same,  except  that  the  interest  of  the  former  is  legal, 
of  the  latter,  equitable.  The  act  under  which  the  company 
was  formed  6  declared  that  the  shares  of  the  proprietors 
should  be  considered  as  personal  property.  It  was  argued 
that  this  made  the  real  estate  of  the  corporation  personalty, 
and  hence  not  subject  to  the  land  tax.  The  Court  overruled 
the  objection,  not  on  the  ground  that  the  property  of  the 
corporation  was  entirely  different  from  that  of  the  share- 
holders, but  because,  "  as  between  the  heir  and  executor,  this 
(the  real  estate  of  the  company)  is  to  be  considered  as  per- 
sonal property,  but  the  Legislature  did  not  intend  to  alter 
the  nature  of  it  in  any  other  respect." 

Another  class  of  cases  illustrating  the  theory  now  under 
consideration  arose  from  the  transfer  of  stock  on  the  books 
of  the  company  by  fraud  or  mistake  without  the  consent  of 
the  owner.  When  it  is  understood  that  the  right  of  a  share- 
holder is  a  legal  right,  it  is  obvious  that  such  a  transfer 

1  In  Wells  v.  Cowles,  2  Conn.  567,  it  was  decided  that  turnpike  shares 
were  real  estate.    The  argument  was  almost  wholly  confined  to  the  ques- 
tion whether  the  property  of  the  company  was  feal  estate  or  not.     It 
was  very  summarily  remarked  that  the  property  of  the  individual  share- 
holders was  of  the  same  nature  as  that  of  the  company. 

2  2  Y.  &  C.  281,  note. 

8  It  was  said  in  Bligh  v.  Brent,  supra,  that  five-sixths  of  the  property 
of  the  company  was  personalty. 
4 1  T.  R.  219. 
8  14  Geo.  III.  c.  56. 


220  V.     COMMERCIAL    LAW 

cannot  affect  his  rights  unless  he  is  estopped  to  assert  them.1 
If,  however,  the  legal  interest  is  in  the  corporation,  and  the 
right  of  a  shareholder  is  only  equitable,  the  transferee,  in  the 
case  supposed,  will  acquire  title,  though  perhaps  he  may  not 
be  allowed  to  retain  it.  The  latter  view  was  taken  in  all  the 
cases  which  arose  prior  to  the  year  1800.  One  of  the  earliest 
of  them  was  Hildyard  v.  The  South  Sea  Company  and  Keate.2 
The  plaintiff's  stock  had  been  transferred  to  Keate,  an  inno- 
cent purchaser,  under  a  forged  power  of  attorney.  The 
court  decided  that  the  plaintiff  was  entitled  to  relief,  and  that 
the  loss  must  fall  on  Keate.  Apparently  the  Court  was  of 
opinion,  however,  that  until  relief  was  given  Keate  was  the 
actual  stockholder,  and  not  the  plaintiff.  Thus,  it  is  assumed 
that  the  dividends  which  Keate  had  received  were  the  dividends 
on  the  plaintiff's  stock,  and  that  they  must  be  recovered  at 
the  suit  of  the  plaintiff,  not  of  the  company.  Further,  the 
company  is  directed  to  "  take  this  stock  from  the  defendant 
Keate  and  restore  it  to  the  plaintiff."  The  case  was  after- 
wards overruled,3  but  in  a  way  which  served  rather  to  empha- 
size the  theory  that  the  legal  title  to  all  the  stock  of  a  cor- 
poration is  in  the  corporation  itself.4 

In  Harrison  v.  Pryse 5  the  facts  were  substantially  the 
same,  except  that  the  defendant  was  not  a  purchaser  for 
value.  The  company  was  not  made  a  party.  The  plaintiff 
recovered  the  full  value  of  his  stock  on  the  theory  that  it  had 
been  converted.  The  transfer  on  the  books  of  the  company, 
though  without  the  plaintiff's  authority,  was  assumed  to  have 
divested  him  of  his  stock.  Lord  Hardwicke,  who  decided  the 
case,  was  of  opinion  that  in  case  the  estate  of  the  defendant 
proved  insufficient  to  satisfy  the  plaintiff's  claim  the  company 
might  be  liable.  "  His  reason  was  that  the  company  must  be 
considered  as  trustees  for  the  owner  at  the  time  he  purchased 
this  stock,  and  as  the  stock  had  not  been  transferred  with  any 
privity  of  his,  they  must  be  considered  as  continuing  his 
trustees." 

1Foir  a  careful  exposition  of  the  modern  view  see  Lowell,  Transfer 
Of  Stock. 

2  2  P.  Wms.  76   (1722).  3Ashby  v.  Blackwell,  Ambl.  503. 

*  See  also  Monk  v.  Graham,  8  Mod.  9. 
6  Barnard.  Ch.  324  (1740). 


57.     WILLISTON:    BUSINESS  CORPORATIONS  221 

The  last  and  most  explicit  of  this  series  of  cases  was  decided 
by  Lord  Worthington  in  1765.1  The  facts  were  the  same  as 
in  Hildyard  v.  The  South  Sea  Company.2  It  was  admitted 
that  the  plaintiff  was  entitled  to  relief,  and  the  only  question 
was  which  of  the  defendants  should  bear  the  loss.  It  was 
decided  that  it  must  fall  on  the  bank.  The  reason  given  was 
that  "  a  trustee,  whether  a  private  person  or  body  corporate, 
must  see  to  the  reality  of  the  authority  empowering  them 
(sic)  to  dispose  of  the  trust  money."  Again,  it  is  said  by 
the  Chancellor,  "  I  consider  the  admission  and  acceptance 
of  the  transfer  as  the  title  of  the  purchaser." 

Whether  a  contract  for  the  sale  of  stock  was  a  contract 
for  the  sale  of  goods,  wares,  or  merchandise,  within  section  17 
of  the  Statute  of  Frauds,  is  a  question  which  was  several  times 
considered  but  not  definitely  decided  in  the  eighteenth  cen- 
tury. In  Pickering  v.  Appleby  3  the  judges  were  divided  six 
to  six  as  to  whether  a  contract  for  the  sale  of  ten  shares  of 
the  Company  of  the  Copper  Mines  required  a  memorandum 
in  writing  to  make  it  enforceable.  In  other  cases,4  also,  the 
point  came  up,  but  they  went  off  on  other  grounds. 

Whether  specific  performance  could  be  had  of  such  a  con- 
tract is  another  question  which  was  raised  in  the  early  part 
of  the  eighteenth  century,  because  of  the  enormous  fluctua- 
tions in  prices  at  that  time.5  The  earliest  case  was  Cud  v. 
Rutter,6  decided  in  1719.  Sir  Joseph  Jekyll  decreed  specific 
performance  of  a  contract  for  the  sale  of  South  Sea  stock, 
and  Lord  Chancellor  Parker  overruled  the  decree,  his  chief 
reason  being,  "  Because  there  is  no  difference  between  this 

1Ashby  v.  Blackwell  and  The  Million  Bank,  Ambl.  503. 

2  2  P.  Wms.  76. 

3 1  Com.  354,  referred  to  in  Colt  v.  Netterville,  2  P.  Wms.  304,  308. 

4  Colt  v.  Netterville,  2  P.  Wms.  304;  Mussell  v.  Cooke,  Prec.  in  Ch. 
533.  In  this  last  case  the  court  seemed  of  opinion  that  a  memorandum 
was  necessary. 

B  Caused  by  the  expected  vast  profits  of  the  South  Sea  Company  and 
other  "  bubbles,"  and  the  subsequent  collapse  of  these  speculations. 

61  P.  Wms.  570;  sub  nom.  Cuddee  v.  Rutter,  5  Vin.  Abr.  538,  pi.  21; 
tub  nom.  Scould  v.  Butter,  2  Eq.  Cas.  Abr.  18,  pi.  8. 

In  Gardener  v.  Pullen,  2  Vern.  394 ;  s.  c.  Eq.  Cas.  Abr.  26,  pi.  4,  which 
was  a  bill  to  be  relieved  from  the  penalty  of  a  bond  conditioned  to  be 
void  on  the  transfer  of  certain  East  India  stock,  the  Court  refused  to 
relieve  unless  the  stock  was  transferred;  and  to  the  same  effect  is 
Thompson  v.  Harcourt,  2  Bro.  Par.  Cas.  415. 


222  F.     COMMERCIAL    LAW 

£1,000  South  Sea  stock  and  £1,000  stock  which  the  plain- 
tiff might  have  bought  of  any  other  person  upon  the  very 
day."  * 

There  is  nothing  to  indicate  that  any  distinction  was  sup- 
posed to  exist  between  South  Sea  stock,  which  was  govern- 
ment stock  with  certain  additional  rights,  and  shares  in  ordi- 
nary companies.  Moreover,  two'  years  later  Lord  Macclesfield 
dismissed  a  bill  for  specific  performance  of  a  contract  for  the 
sale  of  £1,000  stock  in  the  York  Buildings  Company,  which 
was  an  ordinary  joint-stock  corporation,  on  the  ground  that 
the  proper  remedy  was  at  law.2 

The  only  foundation  afforded  before  the  year  1800  for  the 
view  now  prevailing  in  England,3  that  contracts  for  the  sale 
of  shares,  as  distinguished  from  government  stock,  will  be 
specifically  performed,  is  the  case  of  Colt  v.  Netterville,4  a 
bill  for  specific  performance  of  a  contract  for  the  transfer 
of  York  Buildings  stock,  which  was  demurred  to.  Lord  King 
overruled  the  demurrer,  saying  that  the  case  might  be  "  at- 
tended with  such  circumstances  that  may  make  it  just  to 
decree  the  defendant  either  to  transfer  the  stock  according 
to  the  express  agreement,  or  at  least  to  pay  the  difference." 
This,  however,  is  altogether  too  indefinite  to  be  regarded  as 
disapproval  of  the  previous  cases,  and  it  may  be  confidently 
stated  that  the  former  rule  on  this  point  in  England  was 
the  same  as  that  now  prevailing  in  this  country ; 5  that  is,  in 
the  absence  of  special  circumstances,  such  contracts  will  not 
be  specifically  enforced.6 

Though  the  corporation  was  looked  upon  as  a  trustee  and 
the  shareholders  as  cestuis  que  trust,  it  was  of  course  perfectly 

JSee  also,  to  the  same  effect,  Cappur  v.  Harrison,  Bunb.  135;  Nut- 
brown  v.  Thornton,  10  Ves.  159. 

2  Dorison  v.  Westbrook,  5  Vin.  Abr.  540,  pi.  22. 
8  See  Fry  on  Spec.  Perf.,  part  vi.  ch.  1. 

4  2  P.  Wms.  304. 

5  Morawetz,  Corp.  (2d  ed.)  §  218. 

e  It  was,  indeed,  said  by  Lord  Eldon  in  Nutbrown  v.  Thornton,  10  Ves. 
159,  after  he  had  remarked  that  it  was  perfectly  settled  that  the  Court 
would  not  decree  specific  performance  of  an  agreement  to  transfer  stock, 
"In  a  book  I  have  of  Mr.  Brown's,  I  see  Lord  Hardwicke  did  that;" 
but  there  is  no  record  of  any  such  decision  by  Lord  Hardwicke,  and 
further,  there  is  an  express  dictum  by  him  to  the  contrary  in  Buxton  v. 
Lister,  3  Atk.  383. 


57.     WILLISTON:    BUSINESS  CORPORATIONS  223 

well  recognized  that  there  were  rights  and  obligations  not 
incident  to  an  ordinary  trust. 

The  practice  of  keeping  books  to  record  the  transfer 
of  stock  was  adopted  by  the  East  India  Company,  perhaps 
from  its  inception,  and  transfer  on  the  books  was  regarded  as 
essential  for  passing  the  title.  Thus  in  1679,  in  a  suit  for  an 
account  against  a  fraudulent  assignee  of  East  India  stock, 
the  company  being  joined,1  the  Court  decree  that  the  com- 
pany "  do,  upon  application  made  to  them,  according  to  their 
custom,  transfer  back  the  said  £150  stock  to  the  plaintiff ; " 
and  it  was  customary  to  insert  in  the  early  charters  incor- 
porating business  associations,  a  provision  that  the  shares 
might  be  assigned  by  entry  in  a  book  kept  for  that  purpose.2 
Therefore,  one  of  the  earliest  well-recognized  rights  of  a 
shareholder  was  to  have  his  name  kept  upon  the  transfer  book 
so  long  as  he  held  stock ;  3  and,  in  consequence  of  the  assigna- 
bility  of  shares,  to  have  the  name  of  his  assignee  substituted, 
if  he  parted  with  his  interest.4  It  follows  that  if  the  company 
transferred  stock,  however  innocently,  without  due  authority 
from  the  owner,  it  was  liable.  Several  cases  arose  of  such 
transfers,  where  the  company  acted  in  compliance  with  a 
forged  power  of  attorney. 

In  all  these  cases,5  it  seems  to  have  been  decided  or  assumed 
that  the  company  was  bound  to  reinstate  the  original  owner 
on  its  books,  as  well  as  to  pay  him  the  dividends  that  had 
accrued,  though  the  reasoning  on  which  these  decisions  were 
based  was  influenced  by  the  notion  previously  adverted  to, 
that  the  shareholder  occupied  the  position  of  a  cestui  que 
trust. 

When  shares  were  held  in  trust,  of  course,  it  was  the  name 
of  the  trustee  which  appeared  upon  the  books;  he  and  not 
the  beneficial  owner  was  entitled  to  all  the  rights  of  a  share- 

1Cas.  temp.  Finch,  430. 

2 See,  e.g.,  in  the  case  of  the  Greenland  Company,  4  and  5  Wm.  & 
M.  c.  17,  s.  xxiv.,  in  the  case  of  the  Bank  of  England,  5  and  6  Wm.  &  M. 
c.  20,  s.  xxv.,  in  the  case  of  the  Nat.  Land  Bank,  7  and  8  Wm.  III., 
c.  31,  s.  xvii. 

3  Bank  of  Eng.  v.  Moffatt,  3  Bro.  C.  C.  160;  Johnson  v.  E.  I.  Co., 
Cas.  temp.  Finch,  430. 

4  Cock  v.  Goodfellow,  10  Mod.  489,  498,  20  Vin.  Abr.  5,  pi.  16. 
'See  supra. 


224  V.     COMMERCIAL    LAW 

holder.1  This  was  fully  recognized  by  the  Courts ;  and  not 
only  this,  but  it  was  laid  down  that  the  company,  after  ex- 
press notice  that  stock  was  held  in  trust,  was  at  liberty  to 
ignore  the  fact,  even  so  far  as  to  allow  the  trustee  to  commit 
a  fraud  on  the  cestui  que  trust  unless  the  trust  appeared  on 
the  books.2  The  right  to  such  complete  disregard  of  equi- 
table interests  rested  perhaps  not  so  much  on  decisions  as  on 
dicta  which  may  be  attributed  to  a  careless  over-emphasis  of 
the  fact  that  the  legal  interest,  and,  in  general,  the  entire 
control  of  stock  held  in  trust,  is  in  the  trustee. 

In  case  of  refusal  by  the  officers  of  a  company  to  transfer 
on  the  books  at  the  request  of  the  owner  of  stock,  the  proper 
remedy  was  not  wholly  clear  in  the  eighteenth  century.  In  the 
case  of  King  v.  Douglass  3  an  application  was  made  for  a 
mandamus  to  compel  a  transfer.  Lord  Mansfield  refused  to 
allow  this  extraordinary  remedy,  and  suggested  a  special  ac- 
tion of  assumpsit,  and  probably  that  action  would  have  been 
held  proper.  Whether  specific  performance  of  the  obligation 
would  be  enforced  by  equity  was  not  suggested,  but  it  is  not 
unlikely  that  such  a  remedy  would  have  been  allowed.4 

The  right  of  a  shareholder  to  vote  at  the  election  of 
officers,  and  in  regard  to  by-laws  for  the  management  of  a 
business  corporation,  was  formerly  precisely  analogous  to  the 
similar  right  necessarily  possessed  by  the  members  of  all  cor- 
porations from  their  origin,  such  as  the  members  of  a  munic- 
ipal corporation,  for  instance,  still  possess.  That  is,  each 
shareholder  was  entitled  to  one  vote  if  given  by  him  in  per- 
son. This  was  at  first  the  rule  in  the  East  India  Company, 
but,  naturally  enough,  it  soon  became  distasteful  to  the 
larger  owners,  and  various  changes  were  made  at  different 
times;  for  example,  that  only  holders  of  £500  stock  should 
have  the  right  to  vote,  the  smaller  holders  being  allowed 
to  pool  their  stock  to  make  up  the  necessary  amounts.5 

^tockdale  v.  South  Sea  Co.  1  Atk.  140;  s.  c.  Barnard.  Ch.  363; 
Hartga  v.  Bank  of  England,  3  Ves.  55:  Bank  of  England  v.  Parsons,  5 
Ves.  664. 

2Stockdale  v.  South  Sea  Co.  1  Atk.  140;  s.  c.  Barnard.  Ch.  363. 

8  2  Doug.  524. 

*See  Meliorucchi  v.  Royal  Exchange  Ass.  Co.,  1  Eq.  Cas.  Abr.  8, 
pi.  8;  Gibson  v.  Hudson's  Bay  Company,  1  Str.  645. 

•Macpherson,  Hist,  of  Com.  125. 


57.     WILLISTON:    BUSINESS  CORPORATIONS  225 

This  was  simply  a  restriction  of  the  suffrage.  The  units 
of  which  the  corporation  was  composed  were  still  con- 
sidered to  be  the  members,  as  is  the  case  in  municipal  cor- 
porations and  guilds,  —  not  shares,  as  is  the  case  in  the  mod- 
ern joint-stock  corporation.  The  gradual  progress  from 
the  old  view  to  the  modern  one  is  shown  by  the  changes  in  the 
power  of  voting.  It  soon  became  usual  to  allow  the  larger 
holder  more  than  one  vote,  and  it  was  customarily  provided 
in  the  charters  how  many  votes  should  belong  to  the  owner 
of  a  given  number  of  shares,  the  owner  of  a  large  number 
having  more  votes  than  the  owner  of  a  few,  but  not  propor- 
tionately more.  Thus,  in  the  Greenland  Company,  each  sub- 
scriber of  £500  had  one  vote,  each  subscriber  of  £1,000  or 
more  had  two  votes,  and  in  no  case  could  a  shareholder  have 
a  greater  number,  however  great  his  holding  might  be ;  * 
and  in  other  charters  are  similar  provisions.  Except  for 
some  such  provision,  no  doubt,  each  shareholder  would  have 
been  entitled  to  but  one  vote.  It  did  not  take  very  great 
ingenuity  to  devise  a  plan  by  which  owners  of  large  amounts 
of  stock  could,  in  effect,  secure  a  number  of  votes  in  propor- 
tion to  their  holdings.  All  that  was  necessary  was  to  make 
temporary  transfers  of  stock  to  a  number  of  friends,  —  a 
practice  called  "  splitting  stock."  The  preamble  of  an  act 
passed  in  1766  2  shows  the  custom  at  that  time.  It  recites 
"  certain  publick  companies  or  corporations  have  been  insti- 
tuted for  the  purpose  of  carrying  on  particular  trades  or 
dealings  with  joint  stock,  and  the  management  of  the  affairs 
of  such  companies  has  been  vested  in  their  general  courts,  in 
which  every  member  of  each  company  possessed  of  such  share 
in  the  stock  as  by  the  charter  is  limited,  is  qualified  to  give  a 
vote  or  votes ; "  and  it  is  further  recited  that  "  of  late  years 
a  most  unfair  and  mischievous  practice  has  been  introduced, 
of  splitting  large  quantities  of  stock,  and  making  separate 
and  temporary  conveyances  of  the  parts  thereof  for  the  pur- 
pose of  multiplying  or  making  occasional  votes  immediately 
before  the  time  of  declaring  a  dividend,  of  choosing  directors, 
or  of  deciding  any  other  important  question,  which  practice 

1 4  and  5  Wm.  &  M.,  c.  17,  s.  xvii. 
•7Geo.  III.,  c.  48. 


226  V.     COMMERCIAL    LAW 

is  subversive  of  every  principle  upon  which  the  establishment 
of  such  general  courts  is  founded,  and  if  suffered  to  become 
general,  would  leave  the  permanent  welfare  of  such  companies 
liable  at  all  times  to  be  sacrificed  to  the  partial  and  interested 
views  of  a  few."  It  is  then  provided  by  the  act  that  in  future 
members  who  have  not  held  their  stock  for  at  least  six  months 
shall  not  vote. 

As  an  instance  of  the  conservatism  of  the  English  law  in 
matters  of  form  it  may  be  mentioned  that  by  the  English 
Companies  Act  of  1862  the  votes  of  shareholders  are  limited, 
so  that  one  vote  is  allowed  for  every  share  up  to  ten,  for 
every  five  shares  between  ten  and  one  hundred,  and  for  every 
ten  shares  beyond  that.1  But  it  is  now  held  that  a  shareholder 
may  distribute  his  stock  in  lots  of  ten  among  his  friends, 
and  thereby  secure,  in  a  clumsy  and  troublesome  way,  a  vote 
for  every  share.2 

The  right  to  vote  by  proxy  was  not  allowed  at  common 
law,  in  the  absence  of  some  special  authorization.3  This  was 
often  given  the  charter.4  Contrary  to  what  is  now  gen- 
erally held,5  it  is  very  doubtful  if  the  authority  of  a  by-law 
would  have  been  held  in  the  last  century  sufficient  to  confer 
the  right.6 

That  the  directors  of  a  corporation  shall  manage  its  af- 
fairs honestly  and  carefully  is  primarily  a  right  of  the  cor- 
poration itself  rather  than  of  the  individual  stockholders. 
The  question  may,  however,  be  considered  in  this  connection. 

The  only  authority  before  the  present  century  is  the  case 
of  The  Charitable  Corporation  v.  Sutton,7  decided  by  Lord 
Hardwicke.  But  this  case  is  the  basis,  mediate  or  immediate, 
of  all  subsequent  decisions  on  the  point,  and  it  is  still  quoted 
as  containing  an  accurate  exposition  of  the  law.8  The  cor- 

1  Buckley  on  the  Companies  Acts   (4th  ed.),  436. 

2Moffat  v.  Farquhar,  7  Ch.  D.  591,  and  cases  therein  cited. 

3  Phillips  v.  Wickham,  1  Paige  Ch.  590;  State  v.  Tudor,  5  Day  329; 
Taylor  v.  Griswold,  14  N.  J.  L.  222;  People  v.  Twaddell,  18  Hun  427; 
Common,  v.  Bringhurst,  103  Pa.  St.  134 ;  Harben  v.  Phillips,  23  Ch.  D.  14. 

*  E.  g.,  the  charter  of  the  Mine  Adventurers,  9  Anne,  c.  24,  or  of  the 
Northumberland  Fishery  Soc.,  29  Geo.  III.,  c.  25. 

6  Common,  v.  Bringhurst,  103  Pa.  St.  134,  and  cases  therein  cited. 

6  See  the  early  case  of  Taylor  v.  Griswold,  14  N.  J.  L.  222  (1834). 

7  2  Atk.  400. 

8  Taylor  on  Corp.  §  619. 


67.     WILLISTON:    BUSINESS  CORPORATIONS  227 

poration  was  charitable  only  in  name,  being  a  joint-stock 
corporation  for  lending  money  on  pledges.  By  the  fraud 
of  some  of  the  directors  or  "  committee-men,"  and  by  the 
negligence  of  the  rest,  loans  were  made  without  proper  secur- 
ity. The  bill  was  against  the  directors  and  other  officers, 
"  to  have  a  satisfaction  for  a  breach  of  trust,  fraud,  and 
mismanagement."  Lord  Hardwicke  granted  the  relief 
prayed,  and  a  part  of  his  decision  is  well  worth  quoting.  He 
says,  "  Committee-men  are  most  properly  agents  to  those  who 
employ  them  in  this  trust,  and  who  empower  them  to  direct 
and  superintend  the  affairs  of  the  corporation. 

"  In  this  respect  they  may  be  guilty  of  acts  of  commission 
or  omission,  of  malfeasance  or  nonfeasance.1 

"  Now,  where  acts  are  executed  within  their  authority,  as 
repealing  by-laws  and  making  orders,  in  such  cases,  though 
attended  with  bad  consequences,  it  will  be  very  difficult  to 
determine  that  these  are  breaches  of  trust.  For  it  is  by  no 
means  just  in  a  judge,  after  bad  consequences  have  arisen 
from  such  executions  of  their  power,  to  say  that  they  foresaw 
at  the  time  what  must  necessarily  happen,  and  therefore  were 
guilty  of  a  breach  of  trust. 

"  Next  as  to  malfeasance  and  nonfeasance. 

"  To  instance  in  non-attendance ;  if  some  persons  are 
guilty  of  gross  non-attendance,  and  leave  the  management 
entirely  to  others,  they  may  be  guilty  by  this  means  of  the 
breaches  of  trust  that  are  committed  by  others. 

"  By  accepting  of  a  trust  of  this  sort,  a  person  is  obliged 
to  execute  it  with  fidelity  and  reasonable  diligence,  and  it  is 
no  excuse  to  say  that  they  had  no  benefit  from  it,  but  that 
it  was  merely  honorary ;  and  therefore  they  are  within  the 
case  of  common  trustees. 2 

"  Another  objection  has  been  made  that  the  Court  can 
make  no  decree  upon  these  persons  which  will  be  just,  for  it  is 
said  that  every  man's  non-attendance  or  omission  of  duty  is 
his  own  default,  and  that  each  particular  person  must  bear 
such  a  proportion  as  is  suitable  to  the  loss  arising  from  his 
particular  neglect  which  makes  it  a  case  out  of  the  power 

1  Citing  Domat's  Civil  Law,  2d  B.,  tit.  3,  sees.  1  and  2. 
» Citing  Coggs  v.  Bernard,  1  Salk.  26. 


228  V.     COMMERCIAL    LAW 

of  this  court.  Now,  if  this  doctrine  should  prevail,  it  is 
indeed  laying  the  axe  to  the  root  of  the  tree.  But  if,  upon 
inquiry  before  the  master,  there  should  appear  to  be  a  supine 
negligence  in  all  of  them,  by  which  a  gross  complicated  loss 
happens,  I  will  never  determine  that  they  are  not  all  liable. 

"  Nor  will  I  ever  determine  that  a  Court  of  equity  cannot 
lay  hold  of  every  breach  of  trust,  let  the  person  be  guilty  of 
it  either  in  a  private  or  public  capacity." 

The  members  of  any  corporation  were  entitled  to  inspect 
the  books  of  the  corporation.  The  only  difference  between 
business  and  other  corporations  as  to  the  right  of  inspection 
was  this:  The  books  of  municipal  corporations  and  guilds 
might  be  inspected  by  non-members  under  certain  circum- 
stances, because  the  regulations  of  such  bodies  were  not  bind- 
ing on  members  alone,  and  consequently  outsiders  might  be 
vitally  interested  in  the  corporate  proceedings.1  Business 
corporations,  on  the  other  hand,  were  private,  and  the  right 
of  inspection  belonged  solely  to  members.  2 

The  most  important  right  of  shareholders,  the  right  to 
dividends,  was  of  course  always  recognized.  It  is  necessarily 
implied  in  the  conception  of  a  joint-stock  company.  No 
cases,  however,  seem  to  have  been  decided  before  the  year 
1800  which  illustrate  the  nature  of  the  right.  The  same 
remark  applies  to  the  right  of  a  shareholder  to  share  in  the 
distribution  of  the  capital  stock  if  the  affairs  of  the  corpo- 
ration are  wound  up. 

The  correlative  duties  imposed  on  a  shareholder  were  fewer 
and  simpler  than  his  rights.  In  the  first  place,  he  was  bound 
to  pay  to  the  corporation,  when  called  upon,  the  amount  of 
his  share  in  the  joint  stock,  or  so  much  of  it  as  had  not  been 
paid  by  prior  holders.  The  practice  of  paying  in  instalments 
for  stock  subscribed  seems  to  have  arisen  at  an  early  date. 
It  is  referred  to  as  common  in  1723.  Lord  MaccLesfield 
speaks  of  "  the  common  by-laws  of  companies  to  deduct  the 
calls  out  of  the  stocks  of  the  members  refusing  to  pay  their 
calls."  3 

^ee  Grant  on  Corp.  311-313. 

'Charitable  Corp.  v.  Woodcraft,  Cas.  temp.  Hard.  130. 

8  Child  v.  Hudson's  Bay  Co.,  2  P.  Wms.  207. 


57.     WILLISTON:    BUSINESS  CORPORATIONS  229 

In  1796  the  question  arose  whether  an  original  subscriber 
could  avoid  liability  for  future  calls  by  assigning  his  stock.1 
It  was  contended  that  the  case  was  like  the  assignment  of 
a  lease,  "  in  which,  though  the  lessor  consents  to  the  lessee's 
assigning  to  a  third  person,  he  does  not  give  up  his  remedy 
against  the  original  lessee."  The  Court  of  King's  Bench, 
however,  decided  that  assignees  held  the  shares  on  the  same 
terms  as  the  original  subscribers,  and  were  substituted  in  their 
places.  The  objection  that  an  assignment  might  be  made 
to  insolvent  persons  was  met  by  saying  that  it  was  presumed 
that  the  undertaking  was  a  beneficial  one,  and  therefore  the 
right  to  forfeit  shares  for  non-payment  of  calls  furnished 
a  sufficient  check. 

No  doubt  it  has  been  settled  for  a  long  time  that  individual 
members  are  not  liable  for  the  debts  of  a  corporation,  and  it 
has  even  been  said  that  "  the  personal  responsibility  of  the 
stockholders  is  inconsistent  with  the  nature  of  a  body  cor- 
porate ;  "  2  yet  in  the  Roman  law  it  seems  that  if  the  corpora- 
tion became  insolvent  the  persons  constituting  it  were  obliged 
to  contribute  their  private  fortunes ; 3  and  though  it  may  be 
hazardous  to  assert  that  at  common  law  the  rule  was  the  same 
in  England,  it  is  certain  that,  so  far  as  the  evidence  goes,  it 
points  to  that  conclusion.  This  was  not  on  any  theory  that 
the  debt  of  the  corporation  was  directly  the  debt  of  its  mem- 
bers, for  the  contrary  seems  to  have  been  well  understood. 
For  instance,  in  Y.  B.  19  Hy.  VI.  80,  it  was  held  that  an 
action  of  debt  being  brought  against  the  Society  of  Lombards, 
and  the  sheriff  having  distrained  two  individual  Lombards, 
trespass  would  lie  against  him.  "  For  where  a  corporation 
is  impleaded  they  ought  not  to  distrain  any  private  person." 
And  in  the  case  of  Edmunds  v.  Brown  4  it  was  held  that  cer- 
tain members  of  the  Company  of  Woodmongers,  who  had 
signed  a  bond  as  its  officers,  were  not  personally  liable  when 
the  company  was  dissolved. 6  If,  however,  there  was  an  obli- 

1  Huddersfield  Canal  Co.  v.  Buckley,  7  T.  R.  36. 

2  Myers  v.  Irwin,  2  S.  &  R.  371,  per  Tilghman,  C.  J. 

8  Ayliffe,  200,  referring  to  code,  Bk.  i.  tit.  3;  Savigny  Sys.  §  92. 
41  Lev.  237. 

"See  also  Bishop  of  Rochester's  Case,  Owen  73;  s.  c.  2  And.  106; 
Case  of  the  City  of  London,  1  Ventr.  351. 


230  V.     COMMERCIAL    LAW 

gation  running  to  the  corporation  from  its  members,  to  be 
answerable  to  the  corporation  for  the  liability  of  the  latter  to 
the  outside  world,1  this  obligation  would  be  part  of  its  assets, 
which,  though  not  available  in  a  law  court,  could  be  reached 
in  equity,  and  so  indirectly  the  members  could  be  forced  to 
discharge  the  corporate  debts.  That  such  was  the  case  was 
directly  decided  in  the  case  of  Dr.  Salmon  v.  The  Ham- 
borough  Company.  2  This  was  an  appeal  to  the  Lords  from 
the  dismissal  of  a  bill  in  Chancery  against  the  Hamborough 
Company  and  some  of  its  individual  members,  setting  forth 
that  the  company  owed  the  plaintiff  money,  but  had  nothing 
to  be  distrained  by,  and  could,  therefore,  not  be  made  to 
appear.  3  The  Lords  ordered  that  the  dismissal  be  reversed, 
and  that  if  the  company  did  not  appear  the  bill  should  be 
taken  pro  confesso,  and  in  that  event,  and  also  in  case  the 
company  appeared  and  the  plaintiff's  claim  was  found  just> 
a  decree  should  be  made  that  the  company  pay ;  and  on 
failure  to  do  so  for  ninety  days,  "  that  the  governor  or 
deputy  governor  and  the  twenty-four  assistants  of  the  said 
company,  or  so  many  of  them  as  by  the  tenor  of  their  charter 
do  constitute  a  quorum  for  the  making  of  leviations  upon  the 
trade  or  members  of  the  said  company,  shall  make  such  a 
leviation  upon  every  member  of  the  said  company  as  is  to  be 
contributary  to  the  public  charge,  as  shall  be  sufficient  to 
satisfy  the  sum  decreed  to  the  plaintiff ; "  and  in  case  of 
failure  to  answer  these  "  leviations,"  process  of  contempt 
should  issue  against  them.  By  a  note  to  Harvey  v.  East 
India  Company,4  it  may  be  seen  that  the  course  thus  outlined 
was  actually  carried  out,  and  the  individual  members  were 
charged  in  their  private  capacities.  It  is  true  that  the  Ham- 
borough  Company  was  a  regulated,  not  a  joint-stock,  cor- 
poration ;  but  there  seems  to  be  no  reason  why  the  question 
should  not  be  the  same  for  both  kinds,  or  that,  when  the  case 
was  decided,  there  was  supposed  to  be  any  distinction.  In- 

lfThat  there  was  such  an  obligation  in  the  Roman  law  see  Savigny, 
§  92. 

2Ch.  Cas.  294;  s.  c.  6  Vin.  Abr.  310. 

3  A  distringas  was  the  proper  and  only  process  against  a  corporation. 
Curson  v.  African  Co.,  1  Vern.  182;  Harvey  v.  E.  I.  Co.,  2  Vern.  395;, 
3  Keb.  230,  pi.  8. 

«2  Vern.  396. 


57.     WILLISTON:    BUSINESS  CORPORATIONS  231 

deed,  there  is  no  case  decided  before  the  present  century 
which  is  inconsistent  with  the  theory  that  members  of  a  cor- 
poration are  thus  liable,  though  very  possibly  that  idea 
became  contrary  to  the  general  understanding. 

In  another  early  case l  creditors  who  were  members  of  the 
indebted  company  were  postponed  to  the  other  creditors. 
Lord  Nottingham  says,  "  That  if  losses  must  fall  upon  the 
creditors,  such  losses  should  be  borne  by  those  who  were  mem- 
bers of  the  company,  who  best  knew  their  estates  and  credit, 
and  not  by  strangers  who  were  drawn  in  to  trust  the  company 
upon  the  credit  and  countenance  it  had  from  such  particular 
members." 

The  case  of  Dr.  Salmon  v.  The  Hamborough  Company  was 
criticised  by  Fonblanque  in  1793.2  It  was,  however,  followed 
to  its  fullest  extent  in  South  Carolina  so  late  as  1826  in  a 
very  carefully  considered  case,  and  on  appeal  the  decision  was 
affirmed.8  Even  after  1840  the  doctrine  for  which  the  case 
stands  found  support.4 

The  ways  in  which  a  corporation  might  be  dissolved,  and 
the  consequences  of  dissolution,  were  fully  considered  by  the 
older  writers.  It  was  laid  down  that  a  corporation  might  be 
dissolved,  1st,  by  act  of  Parliament;  2d,  by  the  natural 
death  of  all  its  members ;  3d,  by  surrender  of  its  franchises ; 
4th,  by  forfeiture  of  its  charter  through  negligence  or  abuse 
of  its  franchises.5  The  second  of  these  methods  is  inappli- 
cable to  business  corporations,  for  the  shares  of  the  members 
are  property  and  would  pass  to  their  personal  representatives. 

1Naylor  v.  Brown,  Finch,  83  (1673). 

*1  Fonblanque  Eq.  (1st  ed.)  297,  note.  The  learned  author  also  sug- 
gests that  the  Hamborough  Company  was  not  incorporated,  but  in 
Viner's  report  of  the  case  it  is  expressly  called  a  corporation,  and  it 
appears  that  as  a  matter  of  fact  it  had  been  chartered.  Ang.  and  Ames 
on  Corp.  (llth  ed.)  42;  4  Am.  Law  Mag.  366,  note. 

8  Hume  v.  Windy  aw  and  Wando  Canal  Co.,  1  Car.  L.  J.  217;  s.  c.  4 
Am.  L.  Mag.  92. 

4  1  Am.  Law  Mag.  96,  answered  in  4  Am.  Law  Mag.  363.  See  also 
a  small  pamphlet  by  A.  L.  Oliver,  entitled  "  The  Origin  and  Nature  of 
Corporate  Powers  and  Individual  Responsibility  of  the  Members  of 
Trading  Corporations  at  Common  Law,"  in  which  the  author  favors 
the  view  here  expressed,  though  on  the  broader,  and  it  seems  untenable, 
ground  that  a  corporation  is  in  its  nature  a  partnership  with  a  right 
to  sue  by  one  name. 

•  1  Blackst.  Com.  485,  and  to-  the  same  effect,  2  Kyd,  446. 


232  V.     COMMERCIAL    LAW 

Further,  it  should  be  added  that  a  corporation  may  be  dis- 
solved by  the  expiration  of  the  time  limited  in  its  charter. 

Forfeiture  of  a  charter  was  enforced  by  scire  facias  or  an 
information  in  the  nature  of  quo  warranto.  It  is  only  in 
connection  with  the  question  of  forfeiture  that  importance 
was  attached  to  the  fact  that  a  corporation  had  acted  in 
excess  of  the  authority  given  by  its  charter.  Not  a  trace  of 
the  modern  doctrine  of  ultra  vires  is  to  be  found  before  the 
present  century.1  The  other  ways  in  which  a  corporation 
could  be  dissolved  need  no  elaboration.2 

Kyd  says, 3  "  The  effect  of  the  dissolution  of  a  corporation 
is,  that  all  its  lands  revert  to  the  donor,  its  privileges  and 
franchises  are  extinguished,  and  the  members  can  neither 
recover  debts  which  were  due  to  the  corporation,  nor  be 
charged  with  debts  contracted  by  it  in  their  natural  capac- 
ities. What  becomes  of  the  personal  estate  is,  perhaps,  not 
decided,  but  probably  it  vests  in  the  crown." 

The  accuracy  of  the  statement  that  the  lands  of  a  dissolved 
corporation  revert  to  the  donor  has  been  doubted  in  Gray  on 
Perpetuities.4  After  a  very  careful  examination  of  authori- 
ties the  learned  author  arrives  at  the  conclusion  that  the  lands 
would  escheat,  and  offers  the  following  explanation  to  account 
for  the  prevalence  of  the  theory  which  he  controverts.  Most 
early  corporations  held  their  lands  in  frankalmoign,  a  tenure 
in  which  the  lord  was  always  the  donor.  Hence,  on  the  dis- 
solution of  a  corporation,  its  lands,  though  they  escheated, 
would  generally  go  to  the  donor. 

The  explanation  is  ingenious,  and  very  likely  true.  It 
may,  however,  be  urged  that  Lord  Coke,  to  whose  statements  5 
are  to  be  attributed,  in  the  main,  the  wide  acceptance  in  later 
times  of  the  doctrine  under  consideration,  is  not  likely  to  have 
made  such  a  palpable  blunder  in  regard  to  a  question  of 
tenure.  The  suggestion  is  offered  with  diffidence,  that  a  real 
or  fancied  analogy  in  the  civil  law  may  be  the  true  founda- 

'Brice,  Ultra  Vires  (3d  ed.),  x. 

2  They  are  fully  discussed  in  2  Kyd,  446,  Grant  on  Corp.  295,  and  else- 
where. 

8  Vol.  ii.  516. 

4§§  46-51. 

6  Co.  Lit,  13  b;  Dean  and  Canons  of  Winsor  v.  Webb,  Godb.  211. 


57.     WILLISTON:    BUSINESS  CORPORATIONS  233 

tion  on  which  the  doctrine  rests.  The  early  English  law  of 
corporations  is  borrowed  almost  wholly  from  the  Roman  law.1 
This  certainly  creates  an  antecedent  probability  in  favor  of 
the  suggestion  offered.  Domat  says,  "  If  a  corporation  were 
dissolved  by  order  of  the  Prince,  or  otherwise,  the  members 
would  take  out  what  they  had  of  their  own  in  the  corpora- 
tion." 2  This  confines  the  application  of  the  rule  to  members ; 
but  it  may  have  been  regarded  as  applying  to  any  donor  of 
a  corporation,  or  may,  at  least,  have  furnished  an  analogy. 

The  doctrine  itself,  whatever  its  basis  may  have  been,  was 
uniformly  quoted  by  judges  and  text-writers  as  accurate,3 
excepting  in  one  case.4 

The  disposition  of  the  personalty  of  a  corporation  on  its 
dissolution  was  not  discussed  by  the  early  writers,  undoubtedly 
because  of  the  insignificance  at  that  time  of  personal  prop- 
erty. No  expression  of  judicial  opinion  on  the  matter  is  to 
be  found.  Kyd's  remark  5  probably  represents  the  generally 
received  opinion  at  the  time  he  wrote.6 

The  statement  was  made  by  Blackstone  7  that  "  the  debts 
of  a  corporation  either  to  or  from  it  are  totally  extinguished 
by  its  dissolution."  This  remark  has  been  repeated  by  later 
authors,  and  has  led  to  some  confusion.  It  was,  undoubtedly, 
an  error.  The  only  authority  cited  to  support  it  is  Edmunds 
v.  Brown.8  The  Company  of  Woodmongers  had  been  dis- 
solved. It  had  given  a  bond  to  the  plaintiff,  which  was 
signed  by  the  defendants  for  the  company.  This  action 

1  Mackenzie,  Studies  in  Roman  Law,  149;  Grant  on  Corp.  2. 

a  Vol.  ii.  bk.  i.  tit.  15,  §  2,  Par.  8. 

Mackenzie  (Studies  in  Roman  Law)  says  that  no  positive  rule  can  be 
laid  down  as  to  what  became  of  the  property  of  a  dissolved  corporation ; 
that  it  varied  according  to  the  nature  of  the  corporation. 

81  Roll.  Abr.  816  a;  Moore  282,  283,  pi.  435;  per  Lord  Hardwicke  in 
Atty.-Gen.  v.  Gower,  9  Mod.  224,  226;  per  Lord  Mansfield  in  Burgess  v. 
Wheate,  1  W.  Bl.  123,  165;  Law  of  Corp.  300;  Wood,  Inst.  bk.  i.  c.  viii.; 
1  Blackst.  Com.  484;  2  Kyd,  516;  Bell's  Principles  (Scotch),  §  2190. 

*  Johnson  v.  Norway,  Winch,  87,  and  Co.  Lit.  13  b,  Hargrave's  note. 
In  the  case  as  reported  no  decision  is  given.  The  only  authority  is 
Hargrave's  statement  that  in  Lord  Haie's  MS.  it  is  said  that  the  court 
finally  decided  that  the  land  should  go  to  the  lord,  not  to  the  donor. 

5  Supra. 

e  The  same  statement  is  made  by  counsel  arguendo  in  Colchester  v. 
Seaber,  3  Burr.  1868. 

71  Com.  484. 

81   Lev.  237. 


234  V.     COMMERCIAL    LAW 

was  debt  on  the  bond  against  the  individuals  who  signed 
it.  The  plaintiff  failed,  and  rightly,  for  the  bond  was 
not  executed  by  the  defendants  as  individuals  but  for  the 
company.  The  difficulty,  however,  was  simply  in  the  remedy 
which  the  plaintiff  chose.  This  is  evident  from  the  case  of 
Naylor  v.  Brown,1  —  a  suit  in  equity  by  the  creditors  of  the 
Woodmongers'  Company,  begun  immediately  after  the  failure 
of  the  action  at  law  just  referred  to.  On  the  dissolution  of 
the  company,  the  members  had  divided  up  its  property.  It 
was  decreed  that  the  property  should  be  returned,  "  it  being 
in  equity  still  a  part  of  the  estate  of  the  late  company,"  and 
that  the  debts  due  the  plaintiffs  should  be  discharged  from 
the  fund  so  formed.  This  important  case,  which  seems  to 
have  been  generally  overlooked,2  clearly  shows  that  the  prop- 
erty of  a  dissolved  corporation  was  liable  in  equity  for  the 
corporate  debts,  although  they  were  unenforceable  at  law. 

Whether  debts  owing  to  a  dissolved  corporation  could  be 
enforced  for  the  benefit  of  the  creditors  or  members  of  the 
corporations,  or  for  the  benefit  of  the  State  as  bona  vacantia, 
was  not  decided  before  the  year  1800. 

The  history  of  the  law  of  business  corporations  has  thus 
far  been  treated  with  reference  only  to  English  decisions.  In 
this  country  questions  pertaining  to  corporations  were 
brought  before  the  courts  in  very  few  cases  until  the  nine- 
teenth century. 

Pennsylvania  is  entitled  to  the  honor  of  having  chartered 
the  first  business  corporation  in  this  country,3  "  The  Phila- 
delphia Contributionship  for  Insuring  Houses  from  Loss  by 
Fire."  It  was  a  mutual  insurance  company,  first  organized 
in  1752,  but  not  chartered  until  1768.  It  was  the  only- 
business  corporation  whose  charter  antedated  the  Declara- 
tion of  Independence.  The  next  in  order  of  time  were :  "  The 
Bank  of  North  America,"  chartered  by  Congress  in  1781 
and,  the  original  charter  having  been  repealed  in  1785,  by 
Pennsylvania  in  1787 ;  "  The  Massachusetts  Bank,"  char- 

1  Finch,  83. 

2  It  is  not  referred  to  by  Blackstone,  Kyd,  Kent,  Angell  and  Ames, 
Field,  Taylor,  Morawetz,  or  any  other  writer  on  the  subject  so  far  as 
observed. 

3  Laws  of  Pa.  ch.  dlxxvi. 


57.     WILLISTON:    BUSINESS  CORPORATIONS  235 

tered  in  1784 ;  "  The  Proprietors  of  Charles  River  Bridge," 
in  1785;  "The  Mutual  Assurance  Co."  (Philadelphia),  in 
1786;  "The  Associated  Manufacturing  Iron  Co."  (N.  Y.), 
in  1786. 

These  were  the  only  joint-stock  business  corporations 
chartered  in  America  before  1787.  After  that  time  the 
number  rapidly  increased,  especially  in  Massachusetts. 
Before  the  close  of  the  century  there  were  created  in  that 
State  about  fifty  such  bodies,  at  least  half  of  them  turnpike 
and  bridge  companies.  In  the  remaining  States  combined, 
there  were  perhaps  as  many  more.  There  was  no  great 
variety  in  the  purposes  for  which  these  early  companies  were 
formed.  Insurance,  banking,  turnpike  roads,  toll-bridges, 
canals,  and,  to  a  limited  extent,  manufacturing 1  were  the 
enterprises  which  they  carried  on. 

The  rapid  growth  of  corporations  was  followed  in  the 
early  decades  of  the  nineteenth  century  by  the  judicial  deci- 
sion of  the  questions  which  naturally  arose  as  to  the  nature  of 
the  bodies  which  had  been  created  by  the  Legislature,  their 
rights  and  duties,  and  the  rights  and  duties  of  their  stock- 
holders. But  not  even  a  beginning  of  this  development  was 
made  prior  to  the  year  1800.  Before  that  time,  whatever 
knowledge  of  these  matters  American  lawyers  possessed  must 
have  been  derived  from  the  English  cases  and  English  text- 
books previously  considered. 

1  There  were  several  manufacturing  companies  in  Massachusetts,  but 
very  few  in  other  States. 


58.     HISTORY  OF  THE  LAW  OF  PRIVATE  CORPO- 
RATIONS IN  THE  COLONIES  AND  STATES1 

BY  SIMEON  EBEN  BALDWIN  2 

THE  law  of  corporations  was  the  law  of  their  being  for 
the  four  original  New  England  colonies.  Of  whatever 
else  they  might  be  ignorant,  every  man,  woman,  and  child 
must  know  something  of  that.  It  governed  all  the  relations 
of  life.  This  was  true,  whether  the  government  to  which 
they  were  subject  was  set  up  under  a  charter  from  the  crown 
or  those  who  held  a  royal  patent,3  or  —  as  in  New  Haven  — 
was  a  theocratic  republic,  owing  its  authority  to  the  consent 
of  the  inhabitants.  The  one  rested  on  the  law  of  private 
corporations  de  jure:  the  other  on  that  of  public  corpora- 
tions de  facto. 

On  October  25,  1639,  the  first  General  Court  of  the  plan- 
tation of  New  Haven  was  organized,  and  on  October  26,  an 
Indian  was  arrested  under  its  authority  on  a  charge  of  mur- 
der. Three  days  later  he  was  tried  and  sentenced,  and  the 
day  following  his  head  was  cut  off  "  and  pittched  upon  a 
pole  in  the  markett-place."  4  We  may  be  sure  that  this  was 
not  done  by  such  men  as  Eaton  and  Davenport,  nor  the  steps 

xThis  Essay  was  first  published  in  "Two  Centuries'  Growth  of 
American  Law,"  Yale  University  Bicentennial  Publications,  on  the  occa- 
sion of  its  Bicentennial,  1901,  (New  York:  Scribner's  Sons),  pp.  261-281, 
being  part  of  c.  X. 

2  Chief  Justice  of  the  Supreme  Court  of  Errors  of  Connecticut,  and 
Professor  of  Constitutional  and  Private  International  Law  in  Yale  Uni- 
versity. A.  B.  1861,  A.  M.  1864,  Yale  University,  LL.  D.  1891,  Harvard 
University. 

Other  Publications:  Modern  Political  Institutions,  1898;  American 
Railroad  Law,  1904;  The  American  Judiciary,  1905;  and  numerous  arti- 
cles in  legal  journals  and  transactions  of  societies. 

8  See  Chapter  II.,  pp.  11,  17-19,  21,  24. 

4  New  Haven  Col.  Rec.t  I.  24. 


58.     BALDWIN:  PRIVATE  CORPORATIONS  237 

taken  that  put  them  in  a  position  in  which  they  might  be 
called  upon  to  take  such  action,  without  careful  study,  first, 
of  the  powers  rightfully  belonging  to  de  facto  public  corpora- 
tions. 

For  all  the  charter  governments,  the  seventeenth  century, 
as  has  been  suggested  in  Chapter  II.,  was  one  long  school 
of  study  for  their  leaders  into  the  rights  of  private  corpora- 
tions as  founders  of  colonies,  and  then  into  those  of  the 
colonies  as  they  grew  into  public  corporations  —  or  prov- 
inces hardly  distinguishable  from  public  corporations  1  — 
and  received,  as  such,  new  authority  from  the  Crown.  Occa- 
sions arose  upon  which  they  sought  counsel  as  to  points  of 
this  kind  from  the  leaders  of  the  English  bar,  and  the 
opinions  thus  obtained  were  eagerly  read  and  everywhere 
discussed,  not  only  by  those  in  authority,  but  by  their  con- 
stituents in  every  local  community.2 

That  the  colonists  thought  and  studied  on  these  problems 
for  themselves  is  evidenced  by  a  letter  from  the  General  Court 
of  Massachusetts  to  the  counsel  whom  they  had  retained  to 
defend  against  quo  warranto  proceedings  brought  for  a  for- 
feiture of  the  colony  charter  in  1683.  He  had  been  author- 
ized to  engage  professional  assistance,  and  "  we  question 
not,"  they  wrote,  "  but  the  counsel  which  you  retain  will  con- 
sult my  Lord  Coke  his  Fourth  Part,  about  the  Isle  of  Man, 
and  of  Guernsey,  Jersey,  and  Gascoigne,  while  in  the  pos- 
session of  the  Kings  of  England:  where  it  is  concluded  by 
the  Judges,  that  these,  being  extra  regnum,  cannot  be 
adjudged  at  the  King's  Bench,  nor  can  appeal  lie  from 
them,  &c."  3 

The  question  met  and  decided  for  itself  by  the  Colony  of 
New  Haven  at  its  outset  was  answered  in  the  same  way  by 
the  charter  governments  with  which  she  soon  became  con- 

1  See  Report  of  the  American  Historical  Association  for  1895,  619, 
626,  and  Pennsylvania  Statutes  at  Large,  V.  645,  735. 

2  Such  was  the  opinion  of  Ward,  Somers,  and   Treby,   given  at  the 
request  of  Connecticut  in  1690,  as  to  the  effect  of  her  involuntary  sub- 
mission to  Sir  Edmund  Andros,  upon  her  charter  rights.     TrumbulPs 
Hist,  of  Conn.,  I.  407.     See  also  that  from  Sir  John  Holt   (afterwards 
Chief  Justice)   and  seven  others  in  New  Jersey  Archives,  1st  series,  I. 
272. 

8  Palfrey,  Hist,  of  New  England,  III.  389. 


238  V.     COMMERCIAL    LAW 

federated,  and  into  one  of  which  she  was  finally  absorbed. 
They  claimed  and  exercised  from  the  first  the  power  of  life 
and  death  as  respects  all  crimes  committed  within  their  terri- 
torial limits;  but  to  do  so,  it  was  necessary  to  found  it  on 
the  general  grant  to  them  of  legislative  authority.  The 
view  repeatedly  urged  upon  the  home  government  in  opposi- 
tion to  this  contention,  that  the  charters  contemplated  only 
the  making  of  such  by-laws  as  a  trading  corporation  might 
need  for  its  better  regulation,1  was  certainly  plausible,  and 
their  use  as  the  foundation  of  capital  sentences  was  disputed 
before  the  Queen  in  Council  in  an  attack  upon  the  Connect- 
icut charter  as  late  as  1705.2 

The  Englishman's  right  to  local  self-government,  wher- 
ever he  was,  was  the  question  fundamentally  at  issue,  and  as 
to  that,  the  general  sentiment  was  the  same  throughout  all 
the  colonies.  Ultimately  it  led  to  a  gradual  undermining 
of  the  authority  of  the  provincial  Governors  and  their  Coun- 
cils, which  prepared  the  way  for  American  independence. 

Even  after  that  event,  however,  and  when  the  political 
sovereignty  of  the  United  States  and  of  each  of  them  had 
been  fully  acknowledged  by  Great  Britain,  the  English  courts 
continued  to  insist  that  the  colonies  had  never  occupied  the 
position  of  public  governments.  Maryland,  in  the  first  half 
of  the  eighteenth  century,  had  put  out  circulating  bills,  as 
currency,  on  the  security  of  shipments  of  tobacco,  the  pro- 
ceeds of  which  were  invested  in  stock  of  the  Bank  of  England 
held  by  trustees  appointed  for  the  purpose.  The  title  of  the 
State  of  Maryland  to  this  stock  came  in  question  before  the 
English  Court  of  Chancery  some  years  after  the  Treaty  of 
Peace.  If  the  doctrine  of  public  law  that  a  change  in  the 
political  government  of  a  people  does  not  affect  its  proprie- 
tary rights  or  obligations  was  to  apply,  the  equitable  inter- 
est in  the  shares  belonged  to  the  State.  It  was  held  by  Lord 
Loughborough  that  it  did  not  apply.  "  The  old  govern- 
ment of  Maryland,"  he  said,  "  a  government  of  a  singular 
species,  existing  by  Letters  Patent,  in  some  degree  similar 
to  a  corporation,  possessing  rights  in  England,  must  sue  in 

1  See  Palfrey's  Hist,  of  New  England,  I.  307. 

1  Hinman,  Letters  from  the  English  Kings,  etc.,  325,  328. 


58.     BALDWIN:  PRIVATE  CORPORATIONS  239 

England,  and  ought  to  be  regulated  by  the  law  of  England, 
under  which  it  has  its  existence."  l  Under  that  law,  in  his 
opinion,  the  new  State  could  not  be  regarded  as  its  lawful 
successor  in  title. 

Lord  Eldon,  in  referring  to  this  case  some  years  later, 
summarized  it  as  deciding  "  that  the  property  in  question, 
which  was  stock  in  a  London  corporation  held  by  English 
trustees,  as  it  belonged  originally  to  a  corporation  existing 
by  the  King's  charter,  was  not  to  be  transferred  to  the  State 
of  Maryland  after  the  Treaty  of  Peace  of  1783,  as  that 
State  did  not  exist  by  the  King's  authority ;  but  constituted 
bona  vacantia,  and  fell  to  the  Crown."  2 

In  this  known  attitude  of  the  English  courts,  early  taken 
and  always  maintained,  reflecting,  as  it  did,  the  attitude  of 
the  English  Crown,  we  find  one  of  the  divisive  forces  leading 
to  the  Revolution.  Opposed  to  it  from  the  first  was  an 
American  doctrine  of  colonial  and  corporate  rights,  rooted 
in  Massachusetts  Bay,  and  emphasizing  the  political  and 
public  character  of  our  local  governments.  The  better  to 
repress  its  growth,  the  mother  country,  about  the  year  1680,3 
determined  to  make  applicable  here  the  system  of  appeals 
to  the  King  in  Council,  which  she  had  devised  for  the  better 
regulation  of  what  remained  of  her  French  possessions,  — 
the  Channel  Islands.  That,  under  their  charters,  their  pro- 
ceedings were  thus  subject  to  review,  some  of  the  American 
colonies  at  first  denied,  and  it  took  nearly  half  a  century 
for  the  Crown  to  establish  it  as  unquestionable.4 

This  contest  against  a  royal  prerogative,  the  maintenance 
of  which  all  now  must  admit  to  have  been  then  indispensable 
to  the  preservation  of  proper  relations  between  England  and 
her  colonies,  was  one  of  the  chief  causes  of  a  bill  brought 
into  the  House  of  Lords  by  the  ministry  in  1701,  to  bring 
back  under  the  direct  control  of  the  throne,  by  means  of  royal 

1  Barclay  v.  Russell,  5  Vesey's  Reports,  424,  434. 

2  Bolder  v.  Bank  of  England,  10  Vesey's  Reports,  352,  354. 

3  Pitkin,  Hist,  of  the  United  States,  I.  23. 

*  See  the  memorial  to  the  Lords  Commissioners  of  Trade  and  Planta- 
tions, drawn  for  Connecticut  in  1700,  and  other  documents  of  following 
years,  in  Hinman's  Letters,  286,  292,  296,  316,  328;  Report  of  the  Amer- 
ican Historical  Association  for  1894,  314;  Pennsylvania  Statutes  at 
Large  (ed.  1899),  III.  32.  Cf.  Chapter  II.  p.  18. 


2'40  V.     COMMERCIAL    LAW 

Governors,  all  those  of  the  American  colonies  not  already 
subject  to  those  so  appointed.1 

By  this  time  it  was  becoming  the  custom  for  each  colony 
to  keep  in  commission  an  agent  at  London  to  watch  proceed- 
ings at  court  or  in  Parliament,  and  represent  its  interests 
wherever  they  might  be  concerned.  One  of  them,  Sir  Henry 
Ashurst,  procured  leave  for  Connecticut  to  be  heard  by 
counsel  at  the  bar  of  the  House  against  this  bill,  and  it  was 
defeated,  largely  by  raising  the  cry  that  its  enactment  would 
afford  a  precedent  alarming  to  all  the  chartered  corpora- 
tions in  England.2 

A  few  years  later,  in  1714,  a  similar  measure  was  again 
introduced  and  again  defeated.  The  main  object  of  that  was 
to  get  rid  of  the  proprietary  government  in  Carolina;  but 
the  Northern  colonies,  in  carefully  prepared  "  cases,"  copies 
of  which  have  recently  been  found  among  the  MSS.  in  the 
Bodleian  library,  successfully  opposed  it,  insisting,  among 
other  grounds,  upon  this:  that  while  it  was  true  that  if  a 
charter  held  as  private  property  were  revoked  for  reasons 
of  State  policy,  due  compensation  could  be  made  to  those 
divested  of  their  franchises ;  yet,  as  those  of  the  New  Eng- 
land Colonies  were  vested  in  the  body  of  the  people,  no  equiv- 
alent for  their  loss  could  be  provided.3 

Questions  like  these  were  too  large  for  the  American  law- 
yers of  those  days  to  handle.  They  belonged  rather  to 
statesmen.  Franklin  was  perhaps  the  first  of  our  country- 
men to  deserve  that  name,  and  he  discussed  them  with  more 
force  than  could  any  of  the  bar.  There  were  indeed  few  in 
America  during  the  first  half  of  the  eighteenth  century  who 
could  be  called  lawyers.4  Those  who  had  come  over  in  the 
original  companies  of  planters  had  passed  away.  There 
were  no  facilities  for  legal  education  in  this  country,  and  no 
inducement  to  incur  the  expense  of  seeking  one  in  the  Inns 
of  Court  at  London,  for  our  colonial  courts  were  held  by 
men  little  versed  in  law,  and  often,  like  the  Roman  praetors, 
holding  judicial  office  as  an  incident  of  civil  office. 

1  Pitkin's  Hist,  of  the  United  States,  I.  125. 

1  Trumbull,  Hist,  of  Connecticut,  I.  431. 

8 Report  of  the  American  Historical  Association  for  1892,  25,  27. 

*See  Chapter  II.  pp.  13-17. 


58.     BALDWIN:  PRIVATE  CORPORATIONS  241 

The  few  controversies  that  might  still  arise  before  our 
domestic  tribunals  upon  the  construction  and  effect  of  colo- 
nial charters  or  grants  belonged  rather  to  the  domain  of 
public  law.  There  was  slight  occasion,  except  as  a  mere 
matter  of  speculative  inquiry,  to  study  the  principles  govern- 
ing private  corporations,  until  such  bodies  were  constituted 
by  our  own  legislatures.  The  law  of  municipal  corporations, 
however,  became  somewhat  earlier  a  subject  of  investigation.1 
The  practice  of  the  proprietaries,  Governors,  or  legislatures 
in  every  colony,  almost  from  the  beginning  of  the  eighteenth 
century  had  established  it  as  one  of  their  prerogatives  to 
confer  upon  the  owners  or  inhabitants  of  any  political  divi- 
sion of  territory  within  their  jurisdiction  the  attribute  of 
legal  personality.2  This  is  the  essence  of  every  corporation 
and,  to  understand  all  that  it  implies,  some  knowledge  of  the 
scientific  conceptions  of  jurisprudence  is  quite  necessary. 

A  franchise  of  this  kind  must  come  from  the  sovereign 
power  of  the  State,  either  directly  or  by  delegation.  Such 
a  delegation  was  fairly  implied  in  favor  of  the  creation  of 
political  agencies  for  local  government  like  towns  and  cities. 
But  if  for  these  purposes,  why  not  for  any  which  were  polit- 
ical and  governmental? 

This  line  of  reasoning  early  led  to  the  incorporation  of 
religious  societies  for  the  support  of  churches  in  most  of  the 
colonies,  and  was  followed  by  Massachusetts,  in  1639,  so 
far  as  to  induce  the  incorporation  of  a  military  company, 
and  then  of  Harvard  College,  in  1650. 

But  by  this  last  step  a  new  field  was  clearly  invaded.  A 
college  had  always  been  considered  by  English  law  as  some- 
thing belonging  to  the  field  of  ecclesiastical  order  and  super- 
intendence, and  to  be  set  up  only  by  special  permission  from 
the  highest  authority.  To  found  such  institutions  had  been 
claimed  as  a  papal  prerogative.  After  the  Reformation 
certainly,  it  belonged  solely  to  the  Crown.  .A  college  could 
only  be  founded  by  license  from  the  King.3  His  title,  in  the 

1  See  Chapter  IX.  p.  259. 

2  Baldwin,  Modern  Political  Institutions,  184;  Report  of  the  Amer- 
ican Historical  Association  for  1895,  304. 

8  Jacobs'  Law  Dictionary,  in  verbo;  Adams  &  Lambert's  Case,  4  Re- 
ports, 107. 


J 


242  V.     COMMERCIAL    LAW 

form  adopted  by  Henry  VIII.,  was,  inter  alia,  "  Fidei  Defen- 
sor,  in  terra  Ecclesice  Anglicance  $•  Hibernice  supremum 
caput;  "  *  and  in  an  ecclesiastical  commission  issued  as  late 
as  1728  we  find  George  II.  styling  himself,  yet  more  offen- 
sively, "  supremum  ecclesm  in  terris  caput"'  It  is  probable 
that  Massachusetts  only  ventured  on  the  incorporation  of 
Harvard  because  the  execution  of  Charles  I.  had  extinguished 
for  the  time,  and,  she  hoped,  for  all  time,  the  royal  preroga- 
tive, and  replaced  it  by  the  form  of  a  free  commonwealth. 
She  paid  dearly  for  this.  In  the  next  reign  she  was  called 
to  account  for  it  and  certain  other  excesses  of  authority, 
before  the  Lord  Chancellor,  on  a  writ  of  scire  facias,  and  in 
1684  a  judgment  was  entered  against  her  for  the  cancellation 
of  her  colonial  charter.3 

In  1701,  when  the  plan  for  establishing  a  college  in  Con- 
necticut was  taking  shape,  this  ill  consequence  of  the  foun- 
dation of  Harvard  was  in  all  men's  minds,  and  explains  the 
care  to  avoid  giving  any  definite  form  of  incorporation  to  the 
ten  Trustees  or  "  Undertakers,"  in  the  Act  of  the  Assembly 
which  is  commonly  called  the  first  charter  of  Yale.4 

Similar  caution  dictated  the  general  policy  of  all  the  colo- 
nial legislatures  in  matters  of  this  description.  Down  to  1741, 
when  Parliament  intervened  and  absolutely  forbade  for  the 
future  any  American  grants  of  corporate  privileges  for 
business  purposes,5  there  had  been  but  three  such,  and  during 
the  whole  of  the  eighteenth  century,  including  the  period 
subsequent  to  the  Declaration  of  Independence,  the  number 
granted  probably  did  not  exceed  two  hundred  and  fifty. 

A  list  of  these  charters,  from  the  first  settlements  down 
to  1799,  inclusive,  which  is  believed  to  be  approximately 
correct,  follows  this  chapter  and  may  serve  to  show  how  slowly 
the  American  business  corporation  became  a  factor  in  our 
economic  life .  I  am  aware  of  no  published  record  of  an 

1Cowel's  Interpreter  (ed.  1727),  Chronological  Table. 

2  Documents  relating  to  Col.  Hist,  of  New  York,  V.  849. 

3  Palfrey,  Hist,  of  New  England,  III.  390,  394;  New  Haven.  Colony 
Hist.  Soc.  Papers,  III.  413. 

*New  Haven  Colony  Hist.  Soc.  Papers,  III.  406,  410. 

6  By  the  extension  to  the  colonies  of  the  "  Bubble  Act"  of  1720.  Hil- 
dreth,  Hist,  of  the  United  States,  II.  380;  Transactions  of  the  Colonial 
Society  of  Massachusetts,  III.  27. 


68.     BALDWIN:  PRIVATE  CORPORATIONS  243 

action  at  law  in  which  one  of  them  appeared  as  a  party  in 
our  courts  before  1790.1  By  the  first  decade  of  the  next 
century  such  forms  of  litigation  became  common,  and  four 
such  cases  appear  in  one  volume  of  the  Connecticut  Law 
Reports, 2  which  were  heard  in  or  before  1809. 

Long  before  the  days  of  the  Revolution,  many  of  the 
enterprises  in  which  the  colonists  became  engaged  were  so 
extensive  that  they  could  hardly  have  been  undertaken  with- 
out the  aid  of  aggregated  capital,  contributed  by  many, 
but  managed  by  a  few.  This  was  done  in  rare  instances 
under  an  English  charter,  but  commonly  by  means  of  volun- 
tary associations  in  the  nature  of  partnerships,  acting  under 
a  company  name.  One  of  the  earliest  of  those  of  the  latter 
description  was  the  Undertakers  of  the  Iron  Works,  who 
were  given  special  privileges  by  the  General  Court  of  Massa- 
chusetts soon  after  the  establishment  of  the  Colony.  The 
first  grant  was  in  1643,  and  a  later  one,  which  has  some- 
times, though  I  think  erroneously,  been  termed  a  charter  of 
incorporation,  was  obtained  in  1645.  They  soon  found  it 
necessary  to  call  their  managing  agent  to  account  in  a  suit 
demanding  a  balance  of  £13,000  from  him,  and  their  affairs 
occupied  much  of  the  time  of  the  General  Court  for  ten  or 
twelve  years.  They  sued  in  the  names  of  certain  persons  as 
their  deputies  and  attorneys,  and  it  was  apparently  conceded 
that  those  who  were  full  partners  in  the  enterprise  were  per- 
sonally liable  to  the  creditors  of  the  concern.3 

Similar  privileges  were  afterwards  given  to  other  under- 
takers, engaged  in  the  same  kind  of  mining.4 

In  1670  a  committee  of  the  General  Court  was  authorized 
to  treat  with  certain  "  adventurers "  who  had  asked  for 
special  privileges  as  manufacturers  of  salt,  as  to  granting 
them  a  charter,  but  nothing  further  was  done  in  regard 
to  it.5 

One  of  these  partnership  companies  was  formed  for  bank- 

*Bank  of  North  America  v.  Vardon,  2  Dallas'  Reports,  78. 
8  3  Day. 

*Mass.  Col  Records,  1642-9,  61,  81,  103,  125,  185;  III.  58,  351,  370; 
IV.  188.    Bolles,  American  Industrial  History,  190. 
'Mass.  Col.  Records,  IV.  311. 
*Mass.  Col.  Records,  1661-1674,  IV.  pt.  ii.  505. 


244  V.     COMMERCIAL    LAW 

ing  purposes  in  Massachusetts,  under  the  license  or  sanction 
of  Governor  Dudley  in  1686.1 

In  the  same  year  we  find  in  the  early  records  of  Pennsyl- 
vania one  instance  of  an  attempt  of  a  number  of  landholders 
to  combine  without  any  public  license  or  authority  for  the 
joint  management  and  disposition  of  their  interests,  under  a 
common  seal.  The  agreement  for  this  purpose  was  executed 
at  Frankfort-on-the-Main  in  1686;  probably  in  ignorance 
of  the  English  law  of  incorporation.  The  name  assumed 
was  "  The  Frankfort  Company,"  and  it  appeared  under  this 
designation  in  a  suit  in  the  colonial  courts  in  1708, 2  but 
never,  I  believe,  received  a  charter. 

In  1688,  Wait  Winthrop  and  other  inhabitants  of  Massa- 
chusetts united  with  Sir  Matthew  Dudley  and  others  in 
England,  in  a  petition  to  the  Crown  for  a  charter  of  incor- 
poration for  a  trading  company  with  authority  to  open 
mines  in  New  England.  The  colony  instructed  its  agent  at 
court  to  object  to  the  grant,  urging  that  any  such  charter 
tended  to  create  a  monopoly  and  enhance  prices,  and  trenched 
upon  the  field  of  government.  The  Attorney-General  was 
consulted  by  the  Lords  of  Trade  and  Plantations  in  regard 
to  the  matter,  and  gave  an  opinion  that  there  was  no  legal 
objection,  but  the  petition  was  finally  rejected  in  1703. 3 

The  Ohio  Company  was  incorporated  in  England  in  1749, 
by  a  royal  charter,  for  the  purpose  of  dealing  in  American 
lands  and  effecting  settlements  beyond  the  Alleghanies,  its 
capital  stock  being  divided  into  twenty  shares.4  The  other 
land  companies  whose  names  often  appear  in  our  colonial 
history  were,  it  is  believed,  with  one  exception,5  all  volun- 
tary associations.  Of  these,  perhaps  the  best  known  was  the 
Indiana  Company,  but  it  consisted  simply  of  a  number  of 
sufferers  from  Indian  depredations,  who  accepted  a  grant 
of  three  million  acres  in  what  is  now  Indiana  from  the  Six 

*It  has  been  stated  that  this  was  actually  incorporated,  but  I  find 
no  evidence  of  that:  Proceedings  of  the  American  Antiquarian  Society 
for  1884,  266;  Trumbull,  First  Essays  in  Banking,  13. 

2  Heather  v.  The  Frankfort  Company,  Pa.  Colonial  Cases,  14T. 

8  Palfrey,  Hist,  of  New  England,  IV.  395,  n. 

*Life  of  George  Mason,  I.  58. 

6  The  Society  of  Free  Traders  of  Pennsylvania. 


58.     BALDWIN:  PRIVATE  CORPORATIONS  245 

Nations  in  satisfaction  of  their  claims.  The  conveyance  was 
made  to  the  King  in  trust  for  them  according  to  their  re- 
spective interests,  and  the  suit  brought  in  the  Supreme 
Court  of  the  United  States  in  1793  against  the  State  of 
Virginia  to  enforce  their  title  was  instituted  in  the  names 
of  the  equitable  owners  as  individuals.1 

Among  the  moneyed  companies  with  a  considerable  capital, 
but  unincorporated,  which  were  engaged  in  active  business 
during  the  colonial  period,  several  of  the  most  prominent 
were  in  Maryland.  The  Patapsco  Iron  Works  Company, 
sometimes  called  the  Baltimore  Company,  was  an  important 
concern  there  as  early  as  1731. 2  Another  was  the  Potomac 
Company,  or  Potomac  Canal  Company,  formed  for  improv- 
ing the  navigation  of  the  Potomac  River  in  1762,3  and 
finally  incorporated  in  1784  ;4  and  a  third  also  deserves 
mention,  the  partnership  known  in  1781  as  the  Principio 
Company. 

Some  of  these  associations  received  from  the  colonial  au- 
thorities almost  all  the  attributes  of  corporations,  except 
what  it  was  thought  impossible  to  confer,  that  of  artificial 
personality.  Similar  privileges  were  also  bestowed  on  tenants 
in  common  of  landed  property.  Thus  in  1709,  the  General 
Assembly  of  Connecticut  gave  the  major  part  of  the  pro- 
prietors of  the  Simsbury  copper  mines  power  to  appoint 
annually  a  committee  with  the  powers  for  their  management 
now  usual  for  a  board  of  directors,  and  even  erected  a  special 
court  to  determine  any  differences  that  might  arise  between 
the  owners  or  those  with  whom  they  dealt.6 

Adjoining  proprietors  of  low  lands  or  on  a  water-course 
were  not  infrequently  given  power  to  associate  for  improv- 
ing their  property  in  such  manner  as  a  majority  might  deter- 
mine. Some  of  these  drain  companies  were  made  quasi- 

*Life  of  George  Mason,  I.  284,  II.  341;  Calendar  of  Virginia  State 
Papers,  Vol.  VI. 

2  Life  of  Charles  Carroll  of  Carrollton,  I.  23,  60;  Bishop,  Hist,  of 
American  Manufactures,  I.  586. 

*Life  of  Carroll,  94. 

*Pickell's  Hist,  of  the  Potomac  Company,  44,  64. 

6  See  Laws  of  Maryland  (ed.  1811),  I.  419. 

8  Colonial  Records  of  Connecticut,  1706-1716,  105.  Cf.  Ibid.  315; 
Col  Rec.t  I.  222. 


246  V.     COMMERCIAL    LAW 

corporations,  and  could  sue  in  the  name  of  the  treasurer. 
They  were  really  public  agencies,  created  on  account  of  the 
interest  of  the  State  in  regulating  a  use  of  land  or  water 
shared  in  by  many  under  separate  titles,  and  it  was  no  part 
of  their  purpose  to  make  money  for  their  members.  Indeed, 
their  powers  extended  over  those  who  might  not  desire  to 
come  into  them,  precisely  as  is  the  case  with  municipal 
corporations. 1 

It  was  one  of  the  greatest  of  the  voluntary  joint-stock 
companies,  the  "  Manufacturing  Company  "  or  Land-bank 
of  Massachusetts,  whose  issue  of  circulating  bills  in  1740, 
against  the  protest  of  the  royal  Governor,  to  the  amount 
of  nearly  £50,000,  led  to  the  Act  of  1741,  which  has  been 
already  mentioned.2  This  made  unlawful  the  establishment 
of  or  transaction  of  business  by  any  unincorporated  joint- 
stock  company,  having  transferable  shares,  and  consisting 
of  over  six  persons.  Any  one  violating  the  statute  was  sub- 
ject to  the  penalties  of  prcemunire,  that  is,  of  confiscation 
and  imprisonment,  and  to  payment  of  treble  damages  to  any 
merchant  suffering  by  his  acts.3  This  continued  to  be  the 
law  of  the  land  for  every  American  Colony  until  the  Revolu- 
tion. 

The  earliest  moneyed  corporation,  formed  for  the  profit 
of  its  members  to  come  into  existence  on  this  continent,  under 
a  legislative  charter,  was  the  "  New  London  Society  United 
for  Trade  and  Commerce  in  Connecticut,"  incorporated  per- 
petually in  1732.  It  was  a  rash  act.  The  society  was 
formed  for  trading  with  any  of  "  his  Majesties  Dominions, 
and  for  encouraging  the  Fishery,  &c.,  as  well  for  the  com- 
mon good  as  their  own  private  interest."  It  proceeded  to 

1  Of  this  kind  were  the  following  in  Pennsylvania,  which  are  sometimes 
referred  to  as  incorporated :  — 

1760.  The  Richmond  Company    Pa.  Stat.  at  Large  (ed.  1899),  VI.  24 
The  Greenwich  Island  Company 34,  408 

1761.  The  Ridley  Company 77 

1762.  The  Wicaco  Company 135 

The   Tinicum    Company        ' 147 

The  Kingsessing  Company 147 

The  Company  of  the  Southern  District  of  Darby  Meadow    .  170 

1765.     The  Company  of  the  Eastern  Division  of  Boon's  Island       .  420 

1  Transactions  of  the  Col.  Soc.  of  Massachusetts,  III.  2,  22,  34. 

» Ibid.,  26. 

4  Colonial  Records  of  Connecticut,  VII.  390. 


58.     BALDWIN:  PRIVATE  CORPORATIONS  247 

set  up  a  land-bank  and  issue  circulating  notes,  and  with 
consequences  so  disastrous  to  the  currency  of  the  colony  that 
after  a  single  year  the  charter  was  declared  forfeited  and 
repealed,  a  special  court  of  chancery  being  organized  ad 
lit  em  to  wind  up  its  affairs  and  do  what  justice  it  could  to 
the  unfortunate  billholders.  *  The  General  Assembly  also 
resolved  that  "  although  a  corporation  may  make  a  frater- 
nity for  the  management  of  trades,  arts,  mysteries,  endowed 
with  authority  to  regulate  themselves  in  the  management 
thereof:  yet  (inasmuch  as  all  companies  of  merchants  are 
made  at  home  by  letters  patent  from  the  King,  and  we  know 
not  of  one  single  instance  of  any  government  in  the  planta- 
tions doing  such  a  thing),  that  it  is,  at  least,  very  doubtful 
whether  we  have  authority  to  make  such  a  society;  and 
hazardous,  therefore,  for  this  government  to  presume  upon 
it."2 

This  reference  to  fraternities  was  probably  made  in  view 
of  certain  action  taken  by  the  General  Court  of  Massachu- 
setts in  the  previous  century.  That  was  a  grant  of  license 
to  the  shoemakers  of  Boston  to  form  a  guild  for  the  better 
regulation  of  their  trade,  and  investing  them  with  a  monop- 
oly of  the  market.  It  was  made  in  1648  and  was  to  endure 
for  three  years  only.  There  was  no  capital  stock,  no  pro- 
vision for  a  common  seal,  no  specification  of  the  name  to  be 
assumed,  nor  were  any  words  used  that  were  indicative  of 
an  intention  to  constitute  a  legal  corporation.  Similar  privi- 
leges were  granted  at  the  same  session  to  the  coopers  of 
Boston  and  Charlestown.3 

Pennsylvania,  in  1768,  ventured  to  incorporate  a  fire  in- 
surance company ; 4  but  not  till  the  Continental  Congress 
led  the  way  was  there  to  be  found,  after  1741,  a  commercial 
corporation  of  any  magnitude  under  an  American  charter. 
In  1781  came  the  Bank  of  North  America,  with  an  author- 


1  Colonial  Records  of  Connecticut,  VII.  421,  450. 

*  Colonial  Records  of  Connecticut,  VII.  421. 

8  Massachusetts  Colonial  Records,  1644-1657,  132,  133. 

4  This  was  probably  not  in  existence  in  1776.  See  statement  of  Mr. 
Ingersoll  of  Philadelphia,  arguendo,  in  Bank  of  Augusta  v.  Earle,  13 
Peters'  Reports,  575. 


248  V.     COMMERCIAL    LAW 

ized  capital  of  $10,000,000,  incorporated  by  the  United 
States,  and  soon  reincorporated  by  Pennsylvania. 

Up  to  this  time,  the  only  branch  of  corporation  law  which 
had  been  of  real  importance  in  the  United  States,  except  that 
concerning  public  (including  municipal)  corporations,  was 
the  law  of  religious  societies.  These  had  been  freely  incor- 
porated both  by  the  royal  Governors  and  the  colonial  Assem- 
blies, and  soon  acquired  considerable  possessions,  some  of 
them  receiving  public  grants.1  In  the  Colonies  where  there 
was  an  established  church,  charters  for  any  of  a  different 
character  were  obtained  with  difficulty.  The  Earl  of  Bello- 
mont,  when  Governor  of  New  York,  wrote  in  1698  to  the 
Lords  Commissioners  of  Trade  and  Plantations,  of  one  pro- 
cured by  a  Dutch  Reformed  Church  from  one  of  his  prede- 
cessors (and  as  it  was  hinted  by  means  of  a  present  of  plate) 
that  such  a  grant  was  a  very  extraordinary  proceeding  "  for 
it  is  setting  up  a  petty  jurisdiction  to  fly  into  the  face  of  the 
government."  2 

There  were  also  two  missionary  societies  chartered  in  Eng- 
land for  operations  in  America,  which  were  much  before  the 
public  eye.  One  was  "  the  President  and  Society  for  Propa- 
gating the  Gospel  in  New  England  and  Parts  ad j  acent " 
incorporated  in  1659  under  the  Commonwealth,  and  rechar- 
tered  soon  after  the  Restoration.  This  was  in  the  hands  of 
the  dissenters. 3  The  other,  the  "  Society  for  the  Propaga- 
tion of  the  Gospel  in  Foreign  Parts,"  was  chartered  in  1701, 
in  the  interest  of  the  Church  of  England,  by  the  procure- 
ment of  an  American  clergyman,  the  Rev.  Dr.  Thomas  Bray, 
Commissary  of  the  Bishop  of  London  for  Maryland.4  This 
soon  sent  its  missionaries  over  all  the  colonies.  Grants  of 
land  were  occasionally  made  to  it,  and  it  not  infrequently 
stood  behind  the  parish  clergy,  when  they  were  setting  up 
the  claims  of  the  church  to  property  which  had  been  devoted 
to  pious  uses.5 

1See  Documents  relating  to  Colonial  History  of  New  York,  IV.  271. 
2  Documents  relating  to  Colonial  History  of  New  York,  IV.  427,  463. 
"Douglass'   Summary,   II.   121;    Documents  relating   to   the  Colonial 
History  of  New  York,  IV.  455. 

*  Perry,  History  of  the  American  Episcopal  Church,  I.  142. 

*  See  Douglass'  Summary,  II.  106,  124,  127. 


58.     BALDWIN:  PRIVATE  CORPORATIONS  249 

It  has  been  already  said  that  the  large  business  enterprises 
of  the  earlier  colonists  had  been  managed  through  the  form 
of  voluntary  association  in  a  joint-stock  company.  Such 
organizations  were  good  at  common  law,  and  when  the  Act 
of  Parliament  by  which  they  were  prohibited  in  the  colonies 
after  1741  fell  with  the  Revolution,  the  old  practice  was 
naturally  resumed. 

Alexander  Hamilton  organized  in  this  manner  the  Bank 
of  New  York,1  which  did  a  large  business  without  a  charter 
until  1791. 

Land  companies  were  formed  in  the  same  way.  The  Con- 
necticut Gore  Land  Company,  which  bought  in  1795  the 
Connecticut  title  to  a  long  gore  of  territory  west  of  the 
Delaware  River,  was  one  of  this  kind,  and  the  conveyance 
was  taken  to  five  of  the  members,  in  behalf  of  all  the  share- 
holders.2 

The  table  appended  to  this  chapter  shows  that  no  consider- 
able impulse  towards  the  granting  of  business  charters  was 
felt  in  any  of  the  United  States  until  after  the  adoption  of 
the  national  Constitution.  This  first  put  our  foreign  com- 
merce* and  that  between  the  States  upon  a  solid  footing.  It 
first  also  gave  to  capital  a  sense  of  security,  for  the  govern- 
ment which  it  replaced  had  been  found  from  the  first  too 
weak  even  to  protect  itself. 

The  States,  however,  for  many  years  after  1789  dealt  such 
charters  out  with  a  sparing  hand,  and  most  of  the  large 
business  enterprises  were  still  carried  on  by  voluntary  asso- 
ciations. The  cumbersome  methods  of  combining  capital 
which  were  endured  originally  from  the  cost  of  getting  a 
royal  charter  were  followed  after  the  Revolution,  largely 
by  the  force  of  tradition.  At  the  opening  of  the  two  cen- 
turies of  which  this  volume  particularly  treats,  there  had 
been  but  three  joint-stock  commercial  companies  under  full 
charters  existing  in  England,3  and  the  monopolies  enjoyed 
by  the  "  regulated  "  companies  had  fallen  under  the  ban  of 
the  Parliament  which  came  in  with  William  and  Mary.  So 

1  Hamilton's  Works,  I.  414  et  seq. 

*  Report  of  the  American  Historical  Association  for  1898,  148. 
'They  were  the   East   India   Co.,  the   Royal   African   Co.,  and   the 
Hudson's  Bay  Co.    Anderson,  History  of  Commerce,  II.  598. 


250  V.     COMMERCIAL    LAW 

late  as  1717  the  Attorney-General  and  Solicitor-General  had 
advised  the  rejection  of  an  application  for  the  incorporation 
of  a  London  marine  insurance  company,  as  being  a  dangerous 
experiment.1  It  took  the  descendants  of  the  English  colo- 
nists in  America  a  long  time  to  emancipate  themselves  from 
their  inherited  prejudices  against  private  corporations.  It 
was  the  same  sentiment  that  put  so  many  restrictions  against 
voting  in  proportion  to  stock  interests  into  our  earlier  char- 
ters, and  which  looks  to-day  with  disfavor  and  suspicion 
upon  the  modern  "  trust,"  whether  its  business  be  fairly  or 
unfairly  conducted. 

Of  the  charters  granted  prior  to  1800  for  moneyed  corpo- 
rations, two-thirds  were  of  a  quasi-public  character,  and  such 
as  carried  or  might  properly  have  carried  the  right  of  emi- 
nent domain.  Most  of  these  were  for  the  improvement  of 
transportation  facilities  by  roads,  bridges,  and  canals,  or  by 
deepening  rivers  or  harbors.  Of  the  corporations  whose 
business  would  bring  them  into  daily  contact  with  the  people 
at  large,  irrespective  of  locality,  there  were  less  than  eighty, 
the  most  considerable  of  which  were  twenty-eight  banks  and 
twenty-five  insurance  companies. 

By  this  time,  however,  the  number  of  public  and  municipal 
corporations,  religious  societies,  academies,  library  compan- 
ies, and  public  quasi-corporations,  such  as  drain  companies, 
had  become  very  large,  and  probably  approached  two  thou- 
sand. The  principle  of  freedom  of  incorporation  or  organi- 
zation under  general  laws  had  been  applied  to  them  in  several 
of  the  States,  although  only  extended  thus  far  to  a  single 
class  of  private  corporations,  and  by  a  single  State.2 

What  now  had  been  accomplished  towards  the  formation 
of  an  American  law  of  corporations  by  the  close  of  the  eight- 
eenth century? 

Law  is  the  philosophy  of  society.  It  must  reflect  the 
political  and  economic  views  of  the  State  for  which  it  speaks, 
or  it  speaks  in  vain.  It  must  answer  the  needs  of  the  people 

Chalmers'  Opinions  of  Lawyers,  599,  609. 

2  North  Carolina,  in  the  case  of  canal  companies. 


58.     BALDWIN:  PRIVATE  CORPORATIONS   251 

who  are  subject  to  it,  or  they  will  throw  it  aside.  Under  the 
English  and  American  system  of  government  to  keep  Law 
and  Society  in  adjustment  to  each  other  is  mainly  the  office 
of  the  Judges.  The  people  believe  that  their  will  is,  on  the 
whole,  more  faithfully  interpreted  and  fulfilled  by  courts 
than  by  legislatures.  The  legislature  hears  the  loudest  talk- 
ers, and  hurries  to  the  relief  of  the  last  sufferer,  without 
always  stopping  to  consider  how  helping  him  will  affect  the 
rest  of  the  community.  The  courts  act  more  slowly.  They 
do  not  act  at  all  unless  parties  in  interest  have  had  a  fair 
opportunity  to  be  heard.  They  take  that  judicial  notice  of 
the  lessons  of  history  and  the  nature  of  things,  which  stands 
for  the  common  knowledge  and  common  sense  of  the  people 
at  large.  They  administer  a  science  which  rests  on  reason, 
and  proclaims  as  one  of  its  fundamental  principles :  Cessante 
ratione,  cessat  et  ipsa  lex.1 

It  was  with  these  powers  that  the  American  judiciary  first 
took  up  the  work  of  bringing  the  English  law  of  corpora- 
tions into  harmony  with  the  social  conditions  of  the  colo- 
nies. 

Our  political  conditions  differed  widely  from  those  of  the 
mother  country :  our  social  conditions  more  widely  still. 

There  one  class  of  corporations  —  the  corporation  sole  — 
had  been  created  for  the  benefit  of  an  hereditary  crown  and 
an  established  church.  We  had  got  rid  of  one,  and  were, 
wherever  the  other  still  existed,  steadily  advancing  towards 
its  destruction. 

The  English  corporation  held  its  franchise  as  a  special 
favor.  It  was  of  the  nature  of  a  monopoly ;  perhaps  a  re- 
ward for  party  service;  perhaps  gained  by  a  purchase  for 
which  some  minister  or  court  favorite  received  the  price. 

The  American  corporation  could  only  come  into  existence 
legitimately  for  the  public  good.  Such  franchises,  under  the 
principles  of  our  government,  could  only  be  dealt  out  with 
an  equal  hand. 

These  considerations  early  led  our  courts  to  certain  defi- 

1 1  venture  to  think  that  Sir  H.  S.  Maine  has  laid  too  much  stress  on 
Legal  Fiction  as  the  instrument  by  which  this  judicial  power  is  applied. 
See  his  Ancient  Law,  chapter  ii. 


252  V.     COMMERCIAL    LAW 

nite  conclusions  as  to  the  nature  of  corporate  rights,  which 
differed  essentially  from  those  of  English  law. 

Before  the  Revolution  the  people  had  accustomed  them- 
selves to  the  assertion  that  their  charters  had  made  them 
certain  irrevocable  grants,  one  of  which  was  that  they  were 
to  possess  all  the  rights  and  privileges  of  Englishmen.  From 
this  standpoint,  it  was  a  logical  conclusion  that  they  could 
not  be  taxed  without  their  own  consent.  To  do  so  was  to 
alter  the  colonial  charters,  and  in  the  language  of  Franklin, 
they  could  not  be  altered,  "  but  by  consent  of  both  parties, 
the  King  and  the  colonies."  1  An  executed  grant  is  invio- 
lable because  it  is  a  contract.  The  party  who  made  it  has 
lost  certain  rights;  the  party  who  received  and  accepted 
it  has  acquired  them ;  and  each  must  stand  by  his  bargain. 

The  same  effect  was  attributed  under  the  proprietary  char- 
ters, both  to  them  and  to  such  charters  as  the  proprietaries 
might  themselves  grant  by  their  delegated  authority.2  Pres- 
ident Clap  in  1763  had  set  up,  and  successfully,  a  similar 
claim  as  to  the  charter  of  Yale  College,  when  the  General 
Assembly  were  threatening  to  amend  it  without  the  consent 
of  the  corporation.3 

Here  then  was  one  fait  accompli.  It  became  such  by  the 
Revolution,  if  not  before  it.  The  Declaration  of  Indepen- 
dence proclaimed  this  doctrine  of  the  inviolability  of  grants 
of  franchises,  when  it  gave  as  a  reason  for  renouncing  all 
allegiance  to  George  III.  that  he  had  assented  to  Acts  of 
Parliament  "for  taking  away  our  charters  .  .  .  and  alter- 
ing fundamentally  the  powers  of  our  governments." 

A  different  theory  was  asserted  and  acted  upon  by  Penn- 
sylvania in  1785,  when  she  repealed  the  charter  which  she 
had  granted  to  the  Bank  of  North  America,  notwithstanding 
the  masterly  argument  of  James  Wilson  in  support  of  its 
vested  rights.4  Two  years  later,  however,  the  injustice  was 

1  These  words  were  used  by  him  in  1769.     Franklin's  Works   (ed.  of 
1834),  I.  220.     He  had  asserted  the  same  doctrine  at  the  bar  of  the 
House  of  Commons  in  1766.    Ibid.,  214. 

2  Ibid.,  I.  v.    Report  of  the  Committee  of  Grievances  of  the  Assembly- 
of  Pennsylvania,  in  1757. 

8Trumbull,  History  of  Connecticut,  II.  331. 
•Wilson's  Works  (ed.  of  1896),  I.  549. 


58.     BALDWIN:  PRIVATE  CORPORATIONS  253 

redressed  by  a  new  charter,  and  as  soon  as  the  question 
whether  a  charter  was  a  contract  came  before  a  judicial  body 
it  was  unhesitatingly  (in  the  Dartmouth  College  Case)  de- 
cided to  be  such,  and  therefore  to  be  inviolable.1 

Another  doctrine  may  be  said  to  have  become  established 
by  popular  acquiescence  before  the  opening  of  the  nineteenth 
century.  It  is  that  a  corporation  can  acquire  a  legal  exis- 
tence under  the  laws  of  several  States,  by  accepting  a  charter 
from  each;  and  so  in  each  be  a  corporation,  although  hold- 
ing its  meetings  in  but  one  of  them. 

The  first  of  these  organizations  was  the  Bank  of  North 
America,  chartered  first  by  the  Congress  of  the  United 
States  in  1781,  and  then  in  1782  by  Pennsylvania  2  and  New 
York,  and  in  1786  by  Delaware.  This  is  still  in  existence 
under  the  form  of  a  national  banking  association.  Another 
was  "  The  Corporation  for  the  Relief  of  the  Widows  and 
Children  of  Clergymen  in  the  Communion  of  the  Church  of 
England  in  America,"  which  received  charters  from  New 
York,  New  Jersey,  and  Pennsylvania  (1785).  Each  author- 
ized the  annual  meetings  to  be  held  in  any  of  these  States, 
according  to  such  rotation  as  it  might  appoint. 3  This 
organization  was  found  to  be  unwieldy,  and  in  1797,  by  con- 
current legislation  on  the  part  of  these  three  States,  pro- 
vision was  made  for  dividing  it  into  three  new  corporations. 
The  method  devised,  as  set  forth  in  the  new  Pennsylvania 
charter,4  was  a  grant  from  each  State  to  its  citizens,  who 
were  members  of  the  "  aggregate "  or  in  modern  parlance 
"  consolidated  "  corporation,  to  draw  off  and  form  a  separate 
one,  on  such  terms  as  they  might  agree  on  with  their  fellow- 
members  from  New  York  and  New  Jersey  for  the  division 
of  the  corporate  funds.  When  such  a  division  should  be 
agreed  on,  the  seal  of  the  old  corporation  was  to  be  broken, 
and  the  Pennsylvania  citizens  were  to  become  "  The  Corpo- 
ration for  the  Relief  of  the  Widows  and  Children  in  the 
Communion  of  the  Protestant  Episcopal  Church  in  the  Com- 
monwealth of  Pennsylvania,"  with  a  new  seal  of  their  own. 

1  Dartmouth  College  v.  Woodward,  4  Wheaton's  Reports,  518. 
8  This  Pennsylvania  charter,  repealed  in  1785,  was  restored  in  1787. 
•Dallas,  Laws  of  Pennsylvania,  II.  135,  240. 
4  Dallas,  Laws  of  Pennsylvania,  IV.  136. 


254  V.     COMMERCIAL    LAW 

The  courts  of  the  nineteenth  century  have  often  had  occa- 
sion to  define  the  nature  and  incidents  of  such  consolidated 
corporations ;  but  they  were  an  inheritance  from  the  century 
before,  and  in  that  the  legal  conception  of  a  dual  personality 
in  bodies  of  this  nature  had  become  familiar. 

In  respect  to  the  powers  of  legislation  granted  by  the 
colonial  charters,  the  popular  construction,  as  has  been  seen, 
had  always  favored  extreme  liberality.  This  was  in  accord- 
ance with  the  general  English  doctrine  that  as  a  corporation 
was  a  person,  it  had  all  the  rights  of  a  person,  in  the  ab- 
sence of  a  particular  exception  or  prohibition.  This  lay  at 
the  root  of  much  of  the  opposition  to  the  ratification  of  the 
Constitution  of  the  United  States.  As  Patrick  Henry  put 
it,  in  addressing  the  Virginia  Convention,  the  Congress  which 
it  created  could  do  everything  that  it  was  not  forbidden  to 
do.1  But  as  soon  as  the  courts  set  themselves  to  construct- 
ing an  American  theory  of  corporate  personality,  the  judi- 
cial position  became  antagonistic  to  what  had  been  the  com- 
mon opinion  before  the  Revolution.  All  our  circumstances 
were  changed.  It  had  been  our  interest  to  make  the  most 
and  claim  the  most  of  whatever  franchises  we  had  obtained 
from  the  Crown  or  the  agents  of  the  Crown.  Americans 
had  been  only  recipients  of  corporate  privileges.  Now  they 
began  to  be  givers,  also.  They  had  been  but  too  glad  to 
repeat  the  doctrine  of  the  English  Judges  that  corporations 
possessed  power  to  do  anything  which  they  had  not  been 
expressly  or  by  fair  implication  forbidden  to  do.2  Their 
own  Judges  now  began  to  assert  that  corporations  could 
do  nothing  which  they  were  not  expressly  or  by  fair  impli- 
cation authorized  to  do.3 

Starting  with  this  assumption  there  was  less  to  fear  from 
free  grants  of  corporate  franchises.  They  could  be  used  for 
the  proper  purposes  of  the  corporation,  but  for  those  only. 
Hence  the  principle  of  free  incorporation  under  general 
laws  early  found  its  way  into  American  legislation,  while 

1  Elliot's  Debates,  III.  461. 

2  Pollock  on  Contracts,  Appendix  D. 

8  Head  v.  Providence  Insurance  Co.,  2  Cranch's  Reports,  127;  Bald- 
win, Modern  Political  Institutions,  206. 


58.     BALDWIN:  PRIVATE  CORPORATIONS  255 

even  now  it  is  in  England  subject  to  great  restrictions. 
Hence  also  special  charters  have  been  far  more  freely  granted 
with  us,  and  corporation  law  has  become  a  much  more  im- 
portant and  extensive  branch  of  jurisprudence.1  Hence  also 
the  corporations  of  one  State  were  for  a  long  time  encour- 
aged to  engage  freely  in  business  in  any  of  the  others,  and 
are  still  admitted  for  this  purpose  on  easy  terms.2  Up  to 
1839,  on  the  other  hand,  no  case  was  to  be  found  in  the 
English  reports  of  a  suit  brought  by  a  foreign  corporation 
on  an  English  contract.3 

The  first  general  incorporation  law,  since  the  days  of 
Queen  Elizabeth,  was  enacted  by  New  York  in  1784.  Dela- 
ware followed  in  the  same  line  in  1787,4  and  Pennsylvania 
in  1791. 5  The  system  thus  early  inaugurated  and  since  so 
extensively  pursued,  of  free  incorporation,  offered  to  all  on 
equal  terms,  removed  the  foundations  of  the  common-law 
doctrine  that  to  charter  a  corporation  indicated  special  con- 
fidence in  those  named  as  corporators,  and  so  implied  a  trust 
in  the  artificial  person  thus  created  which  justified  a  liberal 
construction  of  its  rights  and  powers.  In  its  application  to 
municipal  corporations  not  only  was  this  view  early  aban- 
doned by  our  courts,  but  they  have  gone  to  what  might  be 
regarded  as  the  other  extreme  and  hold  that  no  powers  are 
implied  in  their  favor  which  are  not  either  such  that  their 
possession  is  necessary  for  the  proper  exercise  of  those  ex- 
pressly granted,  or  indispensable  to  the  fulfilment  of  the 
public  purposes  to  be  attained.6 

1  Commonwealth  v.  Arrison,  15  Sergeant  &  Rawle's  Reports,  131. 

2  Bushel  v.  Commonwealth  Ins.  Co.,  15  Sergeant  &  Rawle's  Reports, 
176. 

8  Ingersoll,  arguendo,  in  Bank  of  Augusta  v.  Earle,  13  Peters'  Reports, 
573. 

*Laws  of  Delaware  (ed.  of  1797),  II.  879. 

6  Baldwin,  Modern  Political  Institutions,  174,  194. 

6  Merrill  v.  Monticello,  138  United  States  Reports,  673,  681 ;  Crofut  v. 
Danbury,  65  Connecticut  Reports,  294,  300. 


PART    VI. 

CONTRACTS 

59.     The  History  of  Assumpsit. 


JAMES  BARR  AMES. 


60.  The  History  of  Parol  Contracts  prior  to  Assumpsit. 

JAMES  BARR  AMES. 

61.  The  History  of  Contract. 

JOHN  WILLIAM  SALMOND. 

62.  The  History  of  the  Beneficiary  Third  Person's  Action 

in  Assumpsit. 

CRAWFORD  DAWES  HENING. 

63.  The  History  of  Agency. 

OLIVER  WENDELL  HOLMES,  JR. 


OTHER  REFERENCES  ON  THE  SUBJECT  OF  THIS  PART  ARE  AS  FOLLOWS: 

History  of  the  Common  Law  Theory  of  Contract,  by  C.  Morse  (Can- 
ada Law  Journal,  1903,  XXXIX,  379-395). 

The  Doctrine  of  Consideration,  in  English  Law,  by  E.  Jenks  (London, 
cc.  Ill,  IV. 

The  Foundations  of  Legal  Liability,  by  T.  A.  Street  (Northport, 
1906),  vol.  II,  cc.  I-IV,  vol.  Ill,  cc.  X-XVI. 


59.     THE   HISTORY   OF   ASSUMPSIT1 

BY  JAMES  BARR  AMES  2 


I. EXPRESS    ASSUMPSIT 

fTIHE  mystery  of  consideration  has  possessed  a  peculiar 
JL  fascination  for  writers  upon  the  English  Law  of  Con- 
tract. No  fewer  than  three  distinct  theories  of  its  origin 
have  been  put  forward  within  the  last  eight  years.  Accord- 
ing to  one  view,  "  the  requirement  of  consideration  in  all 
parol  contracts  is  simply  a  modified  generalization  of  quid 
pro  quo  to  raise  a  deb*  by  parol."  3  On  the  other  hand,  con- 
sideration is  described  as  "  a  modification  of  the  Roman  prin- 
ciple of  causa,  adopted  by  equity,  and  transferred  thence 
into  the  common  law."  4  A  third  learned  writer  derives  the 
action  of  assumpsit  from  the  action  on  the  case  for  deceit,  the 
damage  to  the  plaintiff  in  that  action  being  the  forerunner 
of  the  "  detriment  to  the  promisee,"  which  constitutes  the 
consideration  of  all  parol  contracts.5 

To  the  present  writer  6  it  seems  impossible  to  refer  con- 
sideration to  a  single  source.  At  the  present  day  it  is  doubt- 
less just  and  expedient  to  resolve  every  consideration  into  a 
detriment  to  the  promisee  incurred  at  the  request  of  the 
promisor.  But  this  definition  of  consideration  would  not 

1  This  Essay  was  first  published  in  the  Harvard  Law  Review,  vol.  II 
(1888),  pp.  1-18,  53-69,  377-380.  Additions  made  by  the  author  on  re- 
vising it  for  this  Collection  are  enclosed  in  brackets. 

aA  biographical  note  of  this  author  is  prefixed  to  Essay  No.  43,  in 
Vol.  II  of  this  Collection. 

'Holmes,  Early  English  Equity,  1  L.  Q.  Rev.  171  ante.  Essay  No.  41; 
The  Common  Law,  285.  A  similar  opinion  had  been  previously  advanced 
by  Professor  Langdell.  Contracts,  §  47. 

4Salmond,  History  of  Contract,  3  L.  Q.  Rev.  166,  178  infra,  Essay 
No.  61. 

6  Hare,  Contracts,  Ch.  VII.  and  VIII. 

6  It  seems  proper  to  say  that  the  substance  of  this  article  was  in  manu- 
script before  the  appearance  of  Judge  Hare's  book  or  Mr.  Salmond's 
Essay. 


260  FJ.     CONTRACTS 

have  covered  the  cases  of  the  sixteenth  century.  There  were 
then  two  distinct  forms  of  consideration:  (1)  detriment;  (2) 
a  precedent  debt.  Of  these,  detriment  was  the  more  ancient, 
having  become  established,  in  substance,  as  early  as  1504. 
On  the  other  hand,  no  case  has  been  found  recognizing  the 
validity  of  a  promise  to  pay  a  precedent  debt  before  1542. 
These  two  species  of  consideration,  so  different  in  their 
nature,  are,  as  would  be  surmised,  of  distinct  origin.  The 
history  of  detriment  is  bound  up  with  the  history  of  special 
assumpsit,  whereas  the  consideration  based  upon  a  precedent 
debt  must  be  studied  in  the  development  of  indebitatus  as- 
sumpsit. These  two  forms  of  assumpsit  will,  therefore,  be 
treated  separately  in  the  following  pages. 

The  earliest  cases  in  which  an  assumpsit  was  laid  in  the 
declaration  were  cases  against  a  ferryman  who  undertook 
to  carry  the  plaintiff's  horse  over  the  river,  but  who  over- 
loaded the  boat,  whereby  the  horse  was  drowned ; 1  against 
surgeons  who  undertook  to  cure  the  plaintiff  or  his  animals, 
but  who  administered  contrary  medicines  or  otherwise  un- 
skilfully treated  their  patient ; 2  against  a  smith  for  laming 
a  horse  while  shoeing  it ; 3  against  a  barber  who  undertook 
to  shave  the  beard  of  the  plaintiff  with  a  clean  and  whole- 
some razor,  but  who  performed  his  work  negligently  and 
unskilfully  to  the  great  injury  of  the  plaintiff's  face;4 
against  a  carpenter  who  undertook  to  build  well  and  faith- 
fully, but  who  built  unskilfully.5 

In  all  these  cases,  it  will  be  observed,  the  plaintiff  sought 
to  recover  damages  for  a  physical  injury  to  his  person  or 
property  caused  by  the  active  misconduct  of  the  defendant. 
The  statement  of  the  assumpsit  of  the  defendant  was  for  cen- 

1 Y.  B.  22  Ass.  94,  pi.  41. 

2Y.  B.  43  Ed.  III.  6,  pi.  11;  11  R.  II.  Fitz.  Ab.  Act.  on  the  Case,  37; 
Y.  B.  3  H.  VI.  36,  pi.  33;  [Prior  v.  Rillesford,  17  Yorkshire  Archeol. 
Soc'y.  Record  Series,  78]  Y.  B.  19  H.  VI.  49,  pi.  5;  Y.  B.  11  Ed.  IV.  6, 
pi.  10;  Powtuary  v.  Walton,  1  Roll.  Ab.  10,  pi.  5;  Slater  v.  Baker,  2 
Wils.  359;  Sears  v.  Prentice,  8  East,  348. 

8Y.  B.  46  Ed.  III.  19,  pi.  19;  Y.  B.  12  Ed.  IV.  13,  pi.  9  (semble). 

4 14  H.  VII.  Rast.  Ent    2,  b.  1. 

6Y.  B.  11  H.  IV.  33,  pi.  60;  Y.  B.  3  H.  VI.  36,  pi.  33;  Y.  B.  20 
H.  VI.  34,  pi.  4;  Y.  B.  21  H.  VI.  55,  pi.  12;  18  H.  VII.  Keilw.  50,  pi.  4; 
21  H.  VII.  Keilw.  77,  pi.  25;  Y.  B.  21  H.  VII.  41,  pi.  66;  Coggs  v. 
Bernard,  2  Ld.  Ray.  909,  920;  Elsee  v.  Gatward,  5  T.  R.  143.  See  also 
Best  v.  Yates,  1  Vent.  268. 


59.     AMES:  HISTORY  OF  ASSUMPSIT       261 

turies,  it  is  true,  deemed  essential  in  the  count.  But  the  ac- 
tions were  not  originally,  and  are  not  to-day,  regarded  as 
actions  of  contract.  They  have  always  sounded  in  tort.  Con- 
sideration has,  accordingly,  never  played  any  part  in  the 
declaration.  In  the  great  majority  of  the  cases  and  prece- 
dents there  is  no  mention  of  reward  or  consideration.  In 
Powtuary  v.  Walton1  (1598),  a  case  against  a  farrier  who 
undertook  to  cure  the  plaintiff's  horse,  and  who  treated  it 
so  negligently  and  unskilfully  that  it  died,  it  is  said :  "  Ac- 
tion on  the  case  lies  on  this  matter  without  alleging  any 
consideration,  for  his  negligence  is  the  cause  of  the  action, 
and  not  the  assumpsit.  The  gist  of  the  action  being  tort, 
and  not  contract,  a  servant,2  a  wife,3  or  a  child,4  who  is 
injured,  may  sue  a  defendant  who  was  employed  by  the 
master,  the  husband,  or  the  father.  Wherever  the  employ- 
ment was  not  gratuitous,  and  the  employer  was  himself  the 
party  injured,  it  would,  of  course,  be  a  simple  matter  to 
frame  a  good  count  in  contract.  There  is  a  precedent  of 
assumpsit  against  a  farrier  for  laming  the  plaintiff's  horse.5 
But  in  practice  assumpsit  was  rarely,  if  ever,  resorted  to. 
What,  then,  was  the  significance  of  the  assumpsit  which 
appears  in  all  the  cases  and  precedents,  except  those  against 
•a  smith  for  unskilful  shoeing?  To  answer  this  question  it 
is  necessary  to  take  into  account  a  radical  difference  between 
modern  and  primitive  conceptions  of  legal  liability.  The 
original  notion  of  a  tort  to  one's  person  or  property  was  an 
injury  caused  by  an  act  of  a  stranger,  in  which  the  plaintiff 
did  not  in  any  way  participate.  A  battery,  an  asportation 
of  a  chattel,  an  entry  upon  land,  were  the  typical  torts.  If, 
on  the  other  hand,  one  saw  fit  to  authorize  another  to  come 
into  contact  with  his  person  or  property,  and  damage  ensued, 
there  was,  without  more,  no  tort.  The  person  injured  took 
the  risk  of  all  injurious  consequences,  unless  the  other  ex- 
pressly assumed  the  risk  himself,  or  unless  the  peculiar  nature 
of  one's  calling,  as  in  the  case  of  the  smith,  imposed  a  cus- 

1 1  Roll.  Ab.  10,  pi.  5.    See  also  to  the  same  effect,  Reg.  Br.  105  b, 
'Everard  v.  Hopkins,  2  Bulst.  332. 
8  Pippin  v.  Sheppard,  11  Price,  400. 
4  Gladwell  v.  Steggall,  5  B.  N.  C.  733. 
*2  Chitty,  PI.  (7  ed.)  458. 


262  VI-     CONTRACTS 

ternary  duty  to  act  with  reasonable  skill.  This  conception 
is  well  shown  by  the  remarks  of  the  judges  in  a  case  against 
a  horse-doctor ; 1  Newton,  C.  J. :  "  Perhaps  he  applied  his 
medicines  de  son  bon  gre,  and  afterwards  your  horse  died; 
now,  since  he  did  it  de  son  bon  gre,  you  shall  not  have  an 
action.  .  .  .  My  horse  is  ill,  and  I  come  to  a  horse-doctor 
for  advice,  and  he  tells  me  that  one  of  his  horses  had  a  similar 
trouble,  and  that  he  applied  a  certain  medicine,  and  that  he 
will  do  the  same  for  my  horse,  and  does  so,  and  the  horse  dies ; 
shall  the  plaintiff  have  an  action  ?  I  say,  No."  Paston,  J. : 
"  You  have  not  shown  that  he  is  a  common  surgeon  to  cure 
such  horses,  and  so,  although  he  killed  your  horse  by  his 
medicines,  you  shall  have  no  action  against  him  without  an 
assumpsit."  Newton,  C.  J. :  "  If  I  have  a  sore  on  my  hand, 
and  he  applies  a  medicine  to  my  heel,  by  which  negligence 
my  hand  is  maimed,  still  I  shall  not  have  an  action  unless 
he  undertook  to  cure  me."  The  court  accordingly  decided 
that  a  traverse  of  the  assumpsit  made  a  good  issue.2 

It  is  believed  that  the  view  here  suggested  will  explain  the 
following  passage  in  Blackstone,  which  has  puzzled  many  of 
his  readers :  "  If  a  smith's  servant  lames  a  horse  while  he  is 
shoeing  him,  an  action  lies  against  the  master,  but  not  against 
the  servant."  3  This  is,  of  course,  not  law  to-day,  and  prob- 
ably was  not  law  when  written.  Blackstone  simply  repeated 
the  doctrine  of  the  Year-Books.4  The  servant  had  not  ex- 
pressly assumed  to  shoe  carefully ;  he  was,  therefore,  no 
more  liable  than  the  surgeon,  the  barber,  and  the  carpenter, 
who  had  not  undertaken,  in  the  cases  already  mentioned* 
This  primitive  notion  of  legal  liability  has,  of  course,  entirely 
disappeared  from  the  law.  An  assumpsit  is  no  longer  an 
essential  allegation  in  these  actions  of  tort,  and  there  is,  there- 
fore, little  or  no  semblance  of  analogy  between  these  actions 
and  actions  of  contract. 

An  express  assumpsit  was  originally  an  essential  part  of 
the  plaintiff's  case  in  another  class  of  actions,  namely,  actions 

1  Y.  B.  19  H.  VI.  49,  pi.  5. 

2  See  to  the  same  effect  Y.  B.  48  Ed.  III.  6,  pi.  11;  11  R.  II.  Fitz.  Ab. 
Act.  on  Case,  37;  Rast.  Ent.  463  b. 

8  1  Bl.  Com.  431. 

4  Y.  B.  11  Ed.  IV.  6,  pi.  10;  1  Roll.  Ab.  94,  pi.  1;  1  Roll.  Ab.  95,  pi.  1. 


59.     AMES:  HISTORY  OF  AS  SUMP  SIT       263 

on  the  case  against  bailees  for  negligence  in  the  custody  of 
the  things  intrusted  to  them.  This  form  of  the  action  on 
the  case  originated  later  than  the  actions  for  active  miscon- 
duct, which  have  been  already  considered,  but  antedates,  by 
some  fifty  years,  the  action  of  assumpsit.  The  normal  rem- 
edy against  a  bailee  was  detinue.  But  there  were  strong 
reasons  for  the  introduction  of  a  concurrent  remedy  by  an 
action  on  the  case.  The  plaintiff  in  detinue  might  be  defeated 
by  the  defendant's  wager  of  law ;  if  he  had  paid  in  advance 
for|the  safe  custody  of  his  property,  he  could  not  recover 
in  aetinue  his  money,  but  only  the  value  of  the  property; 
detinue  could  not  be  brought  in  the  King's  Bench  by  original 
writ ;  and  the  procedure  generally  was  less  satisfactory  than 
that  in  case.  It  is  not  surprising,  therefore,  that  the  courts 
permitted  bailors  to  sue  in  case.  The  innovation  would  seem 
to  have  come  in  as  early  as  1449.1  The  plaintiff  counted 
that  he  delivered  to  the  defendant  nine  sacks  of  wool  to  keep ; 
that  the  defendant,  for  six  shillings  paid  him  by  the  plain- 
tiff, assumed  to  keep  them  safely,  and  that  for  default  of 
keeping  they  were  taken  and  carried  away.  It  was  objected 
that  detinue,  and  not  case,  was  the  remedy.  One  of  the 
judges  was  of  that  opinion,  but  in  the  end  the  defendant 
abandoned  his  objection;  and  Statham  adds  this  note:  .  .  . 
"  et  credo  the  reason  of  the  action  lying  is  because  the  de- 
fendant had  six  shillings  which  he  [plaintiff]  could  not  re- 
cover in  detinue."  The  bailor's  right  to  sue  in  case  instead 
of  detinue  was  recognized  by  implication  in  1472,2  and  was 
expressly  stated  a  few  years  later.3 

The  action  against  a  bailee  for  negligent  custody  was 
looked  upon,  like  the  action  against  the  surgeon  or  carpenter 
for  active  misconduct,  as  a  tort,  and  not  as  a  contract.  The 
immediate  cause  of  the  injury  in  the  case  of  the  bailee  was, 
it  is  true,  a  nonfeasance,  and  not,  as  in  the  case  of  the  sur- 
geon or  carpenter,  a  misfeasance.  And  yet,  if  regard  be 
had  to  the  whole  transaction,  it  is  seen  that  there  is  more  than 
a  simple  breach  of  promise  by  the  bailee.  He  is  truly  an 

1  Statham  Ab.  Act.  on  Case  (27  H.  VI.). 
•Y.  B.  12  Ed.  IV.  13,  pi.  10. 

« Y.  B.  2  H.  VII.  11,  pi.  9;  Keilw.  77,  pi.  25;  Keilw.  160,  pi.  2;  Y.  B. 
37  H.  VIII.  25,  pi.  3. 


264  VI.     CONTRACTS 

actor.  He  takes  the  goods  of  the  bailor  into  his  custody. 
This  act  of  taking  possession  of  the  goods,  his  assumpsit  to 
keep  them  safely,  and  their  subsequent  loss  by  his  default, 
together  made  up  the  tort.  The  action  against  the  bailee 
sounding  in  tort,  consideration  was  no  more  an  essential  part 
of  the  count  than  it  was  in  actions  against  a  surgeon.  Early 
in  the  reign  of  Henry  VIII.,  Moore,  Sergeant,  said,  without 
contradiction,  that  a  bailee,  with  or  without  reward,  was  lia- 
ble for  careless  loss  of  goods  either  in  detinue  or  case ; l  and  it 
is  common  learning  that  a  gratuitous  bailee  was  charged  for 
negligence  in  the  celebrated  case  of  Coggs  v.  Bernard.  If 
there  was,  in  truth,  a  consideration  for  the  bailee's  under- 
taking, the  bailor  might,  of  course,  declare  in  contract,  after 
special  assumpsit  was  an  established  form  of  action.  But, 
in  fact,  there  are  few  instances  of  such  declarations  before 
the  reign  of  Charles  I.2  Even  since  that  time,  indeed,  case 
has  continued  to  be  a  frequent,  if  not  the  more  frequent, 
mode  of  declaring  against  a  bailee.3  Oddly  enough,  the  ear- 
liest attempts  to  charge  bailees  in  assumpsit  were  made  when 
the  bailment  was  gratuitous.  These  attempts,  just  before 
and  after  1600,  were  unsuccessful,  because  the  plaintiffs 
could  not  make  out  any  consideration.4  The  gratuitous  bail- 
ment was,  of  course,  not  a  benefit,  but  a  burden  to  the  defend- 
ant ;  and,  on  the  other  hand,  it  was  not  regarded  as  a  detri- 
ment, but  an  advantage  to  the  plaintiff.  But  in  1623  it  was 
finally  decided,  not  without  a  great  straining,  it  must  be 
conceded,  of  the  doctrine  of  consideration,  that  a  bailee 
might  be  charged  in  assumpsit  on  a  gratuitous  bailment.5 

The  analogy  between  the  action  against  the  bailee  and 
that  against  the  surgeon  holds  also  in  regard  to  the  necessity 

1  Keilw.  160,  pi.  2  (1510). 

2  [As  late  as  1745,  it  was  objected  in  Alcorn  v.  Westbrook  1  Wils. 
115,   that   Assumpsit   was    not   the   proper    form    of    action    against   a 
pledgee.] 

3  In  Williams  v.  Lloyd,  W.  Jones,  179 ;  Anon.,  Comb.  371 ;  Coggs  v. 
Bernard,  2  Ld.  Ray.  909;  Shelton  v.  Osborne,  1  Barnard.  260;  1   Selw. 
N.  P.  (13  ed.)  348,  s.  c.;  Brown  v.  Dixon,  1  T.  R.  274,  the  declarations 
were  framed  in  tort. 

*  Howlet  v.  Osborne,  Cro.  El.  380;  Riches  v.  Briggs,  Cro.  El.  883, 
Yelv.  4;  Game  v.  Harvie,  Yelv.  50;  Pickas  v.  Guile,  Yelv.  128.  See,  also, 
Gellye  v.  Clark,  Noy,  126,  Cro.  Jac.  188,  s.  c. ;  and  compare  Smith's  case, 
3  Leon.  88. 

6  Wheatley  v.  Low,  Palm.  281,  Cro.  Jac.  668,  s.  c. 


69.     AMES:  HISTORY  OF  ASSUMPSIT       265 

of  alleging  an  express  assumpsit  by  the  defendant.  Bailees 
whose  calling  was  of  a  quasi  public  nature  were  chargeable 
by  the  custom  of  the  realm,  without  any  express  undertaking. 
Accordingly,  so  far  as  the  reported  cases  and  precedents 
disclose,  an  assumpsit  was  never  laid  in  a  count  in  case  against 
a  common  carrier1  or  innkeeper2  for  the  loss  of  goods. 
They  correspond  to  the  smith,  who,  from  the  nature  of  his 
trade,  was  bound  to  shoe  skilfully.  But,  in  order  to  charge 
other  bailees,  proof  of  an  express  assumpsit  was  originally 
indispensable.  An  assumpsit  was  accordingly  laid  as  a  mat- 
ter of  course  in  the  early  cases  and  precedents.  Frowyk, 
C.  J.,  says,  in  1505,  that  the  bailee  shall  be  charged  "  per 
cest  parol  super  se  assumpsit ."3  In  Fooley  v.  Preston,4 
Anderson,  Chief  Justice  of  the  Common  Bench,  mentions,  it 
is  true,  as  a  peculiarity  of  the  Queen's  Bench,  that  "  it  is 
usual  and  frequent  in  B.  R.  if  I  deliver  to  you  an  obligation 
to  rebail  unto  me,  I  shall  have  an  action  upon  the  case  with- 
out an  express  promise."  And  yet,  twelve  years  later,  in 
Mosley  v.  Fosset5  (1598),  which  was  an  action  on  the  case 
for  the  loss  of  a  gelding  delivered  to  the  defendant  to  be 
safely  kept  and  redelivered  on  request,  the  four  judges  of 
the  Queen's  Bench,  although  equally  divided  on  the  question 
whether  the  action  would  lie  without  a  request,  which  would 
have  been  necessary  in  an  action  of  detinue,  "  all  agreed  that 
without  such  an  assumpsit  the  action  would  not  lie."6  But 

1 1  Roll.  Ab.  2,  pi.  4;  Rich  v.  Kneeland,  Hob.  17;  1  Roll.  Ab.  6,  pi.  4; 
Kenrig  v.  Eggleston,  Al.  93;  Nichols  v.  More,  1  Sid.  36;  Morse  v.  Slue, 

1  Vent.  190,  238;  Levett  v.  Hobbs,  2  Show.  127;  Chamberlain  v.  Cooke, 

2  Vent.  75;  Matthews  v.  Hoskins,  1  Sid.  244;  Upshare  v.  Aidee,  Com. 
25;  Herne's  Pleader,  76;  Brownl.  Ent.  11;  2  Chitty,  PI.  (1  ed.)  271. 

2  Y.  B.  42  Lib.  Ass.  pi.  17;  Y.  B.  2  H.  IV.  7,  pi.  31;  Y.  B.  11  H.  IV. 
45,  pi.  18;  Cross  v.  Andrews,  Cro.  El.  622;  Gellye  v.  Clark,  Cro.  Jac. 
189;  Beedle  v.  Norris,  Cro.  Jac.  224;  Herne's  Pleader,  170,  249. 

8  Keilw.  77,  pi.  25. 

4 1  Leon.  297. 

6  Moore,  543,  pi.  720;  1  Roll.  Ab.  4,  pi.  5,  s.  c.  The  criticism  in 
Holmes'  "  Common  Law,"  155,  n.  1,  of  the  report  of  this  case  seems  to 
be  without  foundation. 

6  See  also  Evans  v.  Yeoman  (1635),  Clayt.  p.  33:  "Assumpsit.  The 
case  upon  evidence  was,  that  whereas  the  plaintiff  did  deliver  a  book 
or  charter  to  the  defendant,  it  was  holden  that  unless  there  had  been 
an  express  promise  to  redeliver  this  back  again,  this  action  will  not  lie." 

The  writer  is  tempted  to  suggest  here  an  explanation  of  an  anomaly 
in  the  law  of  waste.  If,  by  the  negligence  of  a  tenant-at-will,  a  fire 
breaks  out  and  destroys  the  house  occupied  by  him  as  tenant,  and 


266  VI.     CONTRACTS 

with  the  lapse  of  time  an  express  undertaking  of  the  bailee 
ceased  to  be  required,  as  we  have  already  seen  it  was  dispensed 
with  in  the  case  of  a  surgeon  or  carpenter.  The  acceptance 
of  the  goods  from  the  bailor  created  a  duty  to  take  care  of 
them  in  the  same  manner  that  a  surgeon  who  took  charge 
of  a  patient  became  bound,  without  more,  in  modern  times, 
to  treat  him  with  reasonable  skill. 

Symons  v.  Darknoll l  (1629)  was  an  action  on  the  case- 
against  a  lighterman,  but  not  a  common  lighterman,  for  the 
loss  of  the  plaintiff's  goods.  "  And,  although  no  promise, 
the  court  thought  the  plaintiff  should  recover;  "  Hyde,  C.  J., 
adding :  "  Delivery  makes  the  contract."  The  later  prec- 
edents in  case,  accordingly,  omit  the  assumpsit.^ 

There  is  much  in  common  between  the  two  classes  of  actions 
on  the  case  already  discussed  and  still  a  third  group  of  ac- 
tions on  the  case,  namely,  actions  of  deceit  against  the  vendor 
of  a  chattel  upon  a  false  warranty.  This  form  of  action, 
like  the  others,  is  ancient,  being  older,  by  more  than  a  cen- 
tury, than  special  assiimpsit.  The  words  super  se  assumpsit 
were  not  used,  it  is  true,  in  a  count  upon  a  warranty;  but 
the  notion  of  undertaking  was  equally  well  conveyed  by  "  war- 
ran  tizcmdo  vendidit." 

another  also  belonging  to  his  landlord,  he  must  respond  in  damages  to 
the  landlord  for  the  loss  of  the  latter,  but  not  of  the  former.  Lothrop 
v.  Thayer,  138  Mass.  466.  This  is  an  illustration  of  the  rule  that  a 
tenant-at-will  is  not  liable  for  negligent  or  permissive  waste.  Is  it  not 
probable  that  the  tenant-at-will  and  a  bailee  were  originally  regarded 
in  the  same  light?  In  other  words,  neither  was  bound  to  guard  witK 
care  the  property  intrusted  to  him  in  the  absence  of  a  special  under- 
taking to  that  effect.  This  primitive  conception  of  liability  disappeared 
in  the  case  of  chattels,  but  persisted  in  the  case  of  land,  as  a  rule 
affecting  real  property  would  naturally  persist.  In  the  Countess  of 
Salop  v.  Crompton,  Cro.  El.  777,  784,  5  Rep.  13,  s.  c.,  a  case  against  a 
tenant-at-will,  Gawdy,  J.,  admits  the  liability  of  a  shepherd  for  the 
loss  of  sheep,  "  because  he  there  took  upon  him  the  charge.  But  here 
he  takes  not  any  charge  upon  him,  but  to  occupy  and  pay  his  rent." 
So  also  in  Coggs  v.  Bernard,  2  Ld.  Ray.  909.  Powell,  J.,  referring  to 
the  case  of  the  Countess  of  Salop,  says :  "  An  action  will  not  lie  against 
a  tenant-at-will  generally,  if  the  house  be  burnt  down.  But  if  the  action 
had  been  founded  upon  a  special  undertaking,  as  that  in  consideration 
the  lessor  would  let  him  live  in  the  house  he  promised  to  deliver  up  the 
house  to  him  again  in  as  good  repair  as  it  was  then,  the  action  would 
have  lain  upon  that  special  undertaking.  But  there  the  action  was  laid 
generally." 

1  Palm.  523.  See,  also,  Stanian  v.  Davies,  2  Ld.  Ray.  795. 

2  Q  Inst.  Cler.  185;  2  Chitty,  PI.  (7  ed.)  506,  507. 


69.     AMES:  HISTORY  OF  ASSUMPSIT       267 

Notwithstanding  the  undertaking,  this  action  also  was,  in 
its  origin,  a  pure  action  of  tort.  In  what  is,  perhaps,  the 
earliest  reported  case  upon  a  warranty,1  the  defendant  ob- 
jects that  the  action  is  in  the  nature  of  covenant,  and  that 
the  plaintiff  shows  no  specialty  but  "  non  allocatur,  for  it  is 
a  writ  of  trespass."  There  was  regularly  no  allusion  to  con- 
sideration in  the  count  in  case;  if,  by  chance,  alleged,  it 
counted  for  nothing.2  How  remote  the  action  was  from  an 
action  of  contract  appears  plainly  from  a  remark  of  Choke, 
J. :  "  If  one  sells  a  thing  to  me,  and  another  warrants  it  to 
be  good  and  sufficient,  upon  that  warranty  made  by  parol, 
I  shall  not  have  an  action  of  deceit;  but  if  it  was  by  deed, 
I  shall  have  an  action  of  covenant."  3  That  is  to  say,  the 
parol  contract  of  guaranty,  so  familiar  in  later  times,  was 
then  unknown.  The  same  judge,  and  Brian,  C.  J.,  agreed, 
although  Littleton,  J.,  inclined  to  the  opposite  view,  that  if 
a  servant  warranted  goods  which  he  sold  for  his  master,  that 
no  action  would  lie  on  the  warranty.  The  action  sounding  in 
tort,  the  plaintiff,  in  order  to  charge  the  defendant,  must 
show,  in  addition  to  his  undertaking,  some  act  by  him,  that 
is,  a  sale;  but  the  owner  was  the  seller,  and  not  the  friend 
or  servant,  in  the  cases  supposed.  A  contract,  again,  is, 
properly,  a  promise  to  act  or  forbear  in  the  future.  But  the 
action  under  discussion  must  be,  as  Choke,  J.,  said,  in  the 
same  case,  upon  a  warranty  of  a  thing  present,  and  not  of 
a  thing  to  come.  A  vendor  who  gives  a  false  warranty  may 
be  charged  to-day,  of  course,  in  contract;  but  the  concep- 
tion of  such  a  warranty,  as  a  contract,  is  quite  modern.  Stu- 
art v.  Wilkins,4  decided  in  1778,  is  said  to  have  been  the  first 
instance  of  an  action  of  assumpsit  upon  a  vendor's  warranty. 

We  have  seen  that  an  express  undertaking  of  the  defend- 
ant was  originally  essential  to  the  actions  against  surgeons 
or  carpenters,  and  bailees.  The  parallel  between  these  ac- 
tions and  the  action  on  a  warranty  holds  true  on  this  point 
also.  A  case  in  the  Book  of  Assises  is  commonly  cited,  it  is 
true,  to  show  that  from  very  early  times  one  who  sold  goods, 

»Fitz.  Ab.  Monst.  de  Faits,  pi.  160  (1383). 
'Moor  v.  Russel,  Skin.  104;  2  Show.  284,  s.  c. 
»Y.  B.  11  Ed.  IV.  6,  pi.  11. 
4  3  Doug.  18. 


268  VI-     CONTRACTS 

knowing  that  he  had  no  title  to  them,  was  liable  in  an  action 
on  the  case  for  deceit.1  This  may  have  been  the  law.2  But, 
this  possible  exception  apart,  a  vendor  was  not  answerable 
to  the  vendee  for  any  defect  of  title  or  quality  in  the  chattels 
sold,  unless  he  had  either  given  an  express  warranty,  or  was 
under  a  public  duty,  from  the  nature  of  his  calling,  to  sell 
articles  of  a  certain  quality.  A  taverner  or  vintner  was 
bound  as  such  to  sell  wholesome  food  and  drink.3  Their 
position  was  analogous  to  that  of  the  smith,  common  carrier, 
and  innkeeper. 

The  necessity  of  an  express  warranty  of  quality  in  all  other 
cases  is  illustrated  by  the  familiar  case  of  Chandelor  v. 
Lopus  4  (1606-1607).  The  count  alleged  that  the  defendant 
sold  to  the  defendant  a  stone,  affirming  it  to  be  a  bezoar 
stone,  whereas  it  was  not  a  bezoar  stone.  The  judgment  of 
the  King's  Bench,  that  the  count  was  bad,  was  affirmed  in  the 
Exchequer  Chamber,  all  the  justices  and  barons  (except  An- 
derson, C.  J.)  holding  "  that  the  bare  affirmation  that  it  was 
a  bezoar  stone,  without  warranting  it  to  be  so,  is  no  cause 
of  action;  and  although  he  knew  it  to  be  no  bezoar  stone, 
it  is  not  material;  for  every  one  in  selling  his  wares  will 
affirm  that  his  wares  are  good,  or  that  his  horse  is  sound; 
yet,  if  he  does  not  warrant  them  to  be  so,  it  is  no  cause  of 
action."  The  same  doctrine  is  repeated  in  Bailie  ».  Mer- 
rill.5 The  case  of  Chandelor  v.  Lopus  has  recently  found  an 
able  defender  in  the  pages  of  this  REVIEW.  In  the  number 
for  November,  1887,  Mr.  R.  C.  McMurtrie  urges  that  the 
decision  was  a  necessary  consequence  of  the  rule  of  pleading 
that  the  pleader  must  state  the  legal  effect  of  his  evidence, 
and  not  the  evidence  itself.  It  is  possible  that  the  judgment 
would  have  been  arrested  in  Chandelor  v.  Lopus,  if  it  had 
come  before  an  English  court  of  the  present  century.6  But 

*3  Y.  B.  42,  Lib.  Ass.  pi.  8. 

*  But  see  Kenrick  v.  Burges,  Moore,  126,  per  Gawdy,  J.,  and  Roswell 
v.  Vaughan,  Cro.  Jac.  196,  per  Tanfield,  C.  B. 

3Y.  B.  9  H.  VI.  53,  pi.  37;  Keilw.  91,  pi.  16;  Roswell  v.  Vaughan, 
Cro.  Jac.  196;  Burnby  v.  Bollett,  16  M.  &  W.  644,  654. 

4Dy.  75  a,  n.   (23);    Cro.  Jac.  4. 
1  Roll.  R.  275.     See  also  Leakins  v.  Clizard,  1  Keb.  522,  per  Jones. 

6  But  see  Crosse  v.  Gardner,  3  Mod.  261,  Comb.  142,  s.  c.;  Medina  v. 
Stoughton,  1  Ld.  Ray.  593,  1  Salk.  210,  s.  c. 


69.     AMES:  HISTORY,  OF  ASSUMPSIT       269 

it  is  certain  that  the  judges  in  the  time  of  James  I.  did  not 
proceed  upon  this  rule  of  pleading.  To  their  minds  the  word 
"  warrant,"  or,  at  least,  a  word  equally  importing  an  express 
undertaking,  was  as  essential  in  a  warranty  as  the  words  of 
promise  were  in  the  Roman  stiptdatio.  The  modern  doctrine 
of  implied  warranty,  as  stated  by  Mr.  Baron  Parke  in  Barr  v. 
Gibson,1  "  But  the  bargain  and  sale  of  a  chattel,  as  being  of  a 
particular  description,  does  imply  a  contract  that  the  article 
sold  is  of  that  description,"  would  have  sounded  as  strangely 
in  the  ears  of  the  early  lawyers  as  their  archaic  doctrine 
sounds  in  ours.  The  warranty  of  title  stood  anciently  upon 
the  same  footing  as  the  warranty  of  quality.2  But  in  Lord 
Holt's  time  an  affirmation  was  equivalent  to  a  warranty,3  and 
to-day  a  warranty  of  title  is  commonly  implied  from  the 
mere  fact  of  selling.4 

However  much  the  actions  against  a  surgeon  or  carpenter 
for  misfeasance,  those  against  a  bailee  for  negligent  custody, 
and,  above  all,  those  against  a  vendor  for  a  false  warranty, 
may  have  contributed,  indirectly,  to  the  introduction  of  spe- 
cial assumpsit,  there  is  yet  a  fourth  class  of  cases  which  seem 
to  have  been  more  intimately  connected  with  the  development 
of  the  modern  parol  contract  than  any  of  those  yet  consid- 
ered. These  cases,  also,  like  the  actions  for  a  false  warranty, 
were  actions  on  the  case  for  deceit.  That  their  signif- 
icance may  be  fully  appreciated,  however,  it  will  be  well  to 
give  first  a  short  account  of  the  successive  attempts  to  main- 
tain an  action  for  the  simple  breach  of  a  naked  parol  promise, 
i.  e.,  for  a  pure  nonfeasance. 

The  earliest  of  these  attempts  was  in  1400,  when  an  action 
was  brought  against  a  carpenter  for  a  breach  of  his  under- 
taking to  build  a  house.  The  court  was  unanimous  against 
the  plaintiff,  since  he  counted  on  a  promise,  and  showed  no 
specialty.5  In  the  same  reign  there  was  a  similar  case  with 

1 3  M.  &  W.  390. 

2 Co.  Lit.  102  a;  Springwell  v.  Allen  (1649)  Al.  91,  2  East,  448,  n. 
(a),  s.  c. 

8  Crosse  v.  Gardner,  3  Mod.  261 ;  1  Show.  65,  s.  c. ;  Medina  v.  Stough- 
ton,  1  Ld.  Ray.  593,  1  Salk.  210,  s.  c. 

'Eichholtz  v.  Bannister,  17  C.  B.  N.  s.  708;  Benj.  Sale  (3  ed.),  620- 
631. 

°Y.  B.  2  H.  IV.  3,  pi.  9. 


270  FJ.     CONTRACTS 

the  same  result.1  The  harmony  of  judicial  opinion  was 
somewhat  interrupted  fifteen  years  later  in  a  case  against 
a  millwright  on  a  breach  of  promise  to  build  a  mill  within 
a  certain  time.  Martin,  J.,  like  his  predecessors,  was  against 
the  action;  Cockayne,  J.,  favored  it.  Babington,  C.  J.,  at 
first  agreed  with  Cockayne,  J.,  but  was  evidently  shaken  by 
the  remark  of  Martin,  J. :  "  Truly,  if  this  action  is  main- 
tained, one  shall  have  trespass  for  breach  of  any  covenant  2 
in  the  world,"  for  he  then  said :  "  Our  talk  is  idle,  for  they 
have  not  demurred  in  judgment.  Plead  and  say  what  you 
will,  or  demur,  and  then  it  can  be  debated  and  disputed  at 
leisure."  The  case  went  off  on  another  point.3  Martin,  J., 
appears  finally  to  have  won  over  the  Chief  Justice  to  his 
view,  for,  eight  years  later,  we  find  Babington,  C.  J.,  Martin 
and  Cotesmore,  JJ.,  agreeing  in  a  dictum  that  no  action  will 
lie  for  the  breach  of  a  parol  promise  to  buy  a  manor.  Pas- 
ton,  J.,  showed  an  inclination  to  allow  the  action.4  In  1435 
he  gave  effect  to  this  inclination,  holding,  with  Juyn,  J., 
that  the  defendant  was  liable  in  an  action  on  the  case  for 
the  breach  of  a  parol  promise  to  procure  certain  releases 
for  the  plaintiff.5  But  this  decision  was  ineffectual  to  change 
the  law.  Made  without  a  precedent,  it  has  had  no  following. 

1 Y.  B.  11  H.  IV.  33,  pi.  60.  See  also  [Wheler  v.  Huchynden,  2  Cal. 
Ch.  II;  Wall  v.  Breese,  10  Seld.  Socy.  No.  40  as  in  Y.  B/21  Hen.  VI. 
55,  pi.  12;  Diversitie  of  Courts,  Chancerie;  Sharington  v.  Stratton, 
Plow.  298;  Page  v.  Moulton,  Dy.  296,  a,  pi.  22]  7  H.  VI.  1,  pi.  3; 
[Anon.  (1503)  Keilw.  50,  pi.  4]. 

2  Covenant  was  often  used  in  the  old  books  in  the  sense  of  agreement, 
a  fact  sometimes  overlooked,  as  in  Hare,  Contracts,  138,  139. 

8  Y.  B.  3  H.  VI.  36,  pi.  33.  One  of  the  objections  to  the  count  was 
that  it  did  not  disclose  how  much  the  defendant  was  to  have  for  his 
work.  The  remarks  of  the  judges  and  counsel  upon  this  objection 
seem  to  have  been  generally  misapprehended.  Holmes,  Common  Law, 
267,  285;  Hare,  Contracts,  162.  The  point  was  this:  Debt  would  lie 
only  for  a  sum  certain.  If,  then,  the  price  had  not  been  agreed  upon 
for  building  the  mill,  the  millwright,  after  completing  the  mill,  would 
get  nothing  for  his  labor.  It  could  not,  therefore,  be  right  to  charge 
him  in  an  action  for  refusing  to  throw  away  his  time  and  money.  Bab- 
ington, C.  J.,  and  Cockayne,  J.,  admitted  the  force  of  this  argument,  but 
the  latter  thought  it  must  be  intended  that  the  parties  had  determined 
the  price  to  be  paid.  There  is  no  allusion  in  the  case  to  a  quid  pro 
quo,  or  a  consideration  as  a  basis  for  the  defendant's  promise.  In- 
deed, the  case  is  valueless  as  an  authority  upon  the  doctrine  of  con- 
sideration. 

*  Y.  B.  11  H.  VI.  18,  pi.  10,  24,  pi.  1,  55,  pi.  26. 

•  Y.  B.  14  H.  VI.  18,  pi.  58. 


69.     AMES:  HISTORY  OF  AS  SUM  PS  IT       271 

«, 

The  doctrine  laid  down  in  the  time  of  Henry  IV.  has  been 
repeatedly  reaffirmed.1 

The  remaining  actions  on  the  case  for  deceit  before  men- 
tioned may  now  be  considered.  In  the  first  of  these  cases  the 
writ  is  given,  and  the  reader  will  notice  the  striking  resem- 
blance between  its  phraseology  and  the  later  count  in  assump- 
sit.  The  defendant  was  to  answer  for  that  he,  for  a  certain 
sum  to  be  paid  to  him  by  the  plaintiff,  undertook  to  buy  a 
manor  of  one  J.  B.  for  the  plaintiff;  but  that  he,  by  collu- 
sion between  himself  and  one  M.  N.,  contriving  cunningly 
to  defraud  the  plaintiff,  disclosed  the  latter's  evidence,  and 
falsely  and  fraudulently  became  of  counsel  with  M.  N.,  and 
bought  the  manor  for  M.  N.,  to  the  damage  of  the  plaintiff. 
All  the  judges  agreed  that  the  count  was  good.  Babington, 
C.  J. :  "  If  he  discovers  his  counsel,  and  becomes  of  counsel 
for  another,  now  that  is  a  deceit,  for  which  I  shall  have  an 
action  on  my  case."  Cotesmore,  J. :  "I  say,  that  matter 
lying  wholly  in  covenant  may  by  matter  ex  post  facto  be 
converted  into  deceit.  .  .  .  When  he  becomes  of  counsel  for 
another,  that  is  a  deceit,  and  changes  all  that  was  before 
only  covenant,  for  which  deceit  he  shall  have  an  action  on  his 
case."  2 

The  act  of  the  defendant  did  not  affect,  it  is  true,  the  per- 
son or  physical  property  of  the  plaintiff.  Still,  it  was  hardly 
an  extension  of  the  familiar  principle  of  misfeasance  to  re- 
gard the  betrayal  of  the  plaintiff's  secrets  as  a  tortious  in- 
vasion of  his  rights.  But  the  judges  encountered  a  real  diffi- 
culty in  applying  that  principle  to  a  case  that  came  before 

1  Y.  B.  20  H.  VI.  25,  pi.  11,  per  Newton,  C.  J.;   Y.  B.  20  H.  VI.  34, 
pi.  4,  per  Ayscoghe,  J.;  Y.  B.  21  H.  VI.  55,  pi.  12,  Y.  B.  37  H.  VI.  9, 
pi.  18,  per  Moyle,  J.;  Y.  B.  2  H.  VII.  11,  pi.  9,  and  Y.  B.  2  H.  VII. 
12,  pi.  15,  per  Townsend,  J.;  18  H.  VII.  Keilw.  50,  pi.  4,  per  curiam; 
Doct.  &  St.  Dial.  II.  c.  24;  Coggs  v.  Bernard,  2  Ld.  Ray.  909,  919,  per 
Lord  Holt;   Elsee  v.  Gatward,   5   T.   R.   143.     Newton,  C.  J.,  said  on, 
several  occasions   (Y.  B.  19  H.  VI.  24  b,  pi.  47;  Y.  B.  20  H.  VI.  34, 
pi.  4;  Y.  B.  22  H.  VI.  43,  pi.  28)  that  one  who  bargained  to  sell  land 
for  a  certain  sum  to  be  paid  might  have  debt  for  the  money,  and,  there- 
fore, on  the  principle  of  reciprocity,  was   liable  in   an   action  on  the 
case  to  his  debtor.     But  this  view  must  be  regarded  as  an  idiosyncrasy 
of  that  judge,  for  his  premise  was  plainly  false.     There  was  no  quid 
pro  quo  to  create  a  debt   [Fortescue  dissented  from  Newton  C.  J.  in 
Y.  B.  20  Hen.  VI.  35,  pi.  4]. 

2  Y.  B.  11  H.  VI.  18,  pi.  10,  24,  pi.  1,  55,  pi.  26.    See  also  Y.  B.  20  H. 
VI.  25,  pi.  11. 


272  VI.     CONTRACTS 


the  Exchequer  Chamber  a  few  years  later.1  It  was  a  bill  of 
deceit  in  the  King's  Bench,  the  plaintiff  counting  that  he 
bargained  with  the  defendant  to  buy  of  him  certain  land 
for  £100  in  hand  paid,  but  that  the  defendant  had  enfeoffed 
another  of  the  land,  and  so  deceived  him.  The  promise  not 
being  binding  of  itself,  how  could  the  enfeoffment  of  a 
stranger  be  a  tortious  infringement  of  any  right  of  the  plain- 
tiff? What  was  the  distinction,  it  was  urged,  between  this 
case  and  those  of  pure  nonf easance,  in  which  confessedly  there 
was  no  remedy?  So  far  as  the  plaintiff  was  concerned,  as 
Ayscoghe,  J.,  said,  "  it  was  all  one  case  whether  the  defendant 
made  a  feoffment  to  a  stranger  or  kept  the  land  in  his  own 
hands."  He  and  Fortescue,  J.,  accordingly  thought  the 
count  bad.  A  majority  of  the  judges,  however,  were  in  favor 
of  the  action.  But  the  case  was  adjourned.  Thirty-five 
years  later  (1476),  the  validity  of  the  action  in  a  similar 
case  was  impliedly  recognized.2  In  1487  Townsend,  J.,  and 
Brian,  C.  J.,  agreed  that  a  traverse  of  the  feoffment  to  the 
stranger  was  a  good  traverse,  since  "  that  was  the  effect  of 
the  action,  for  otherwise  the  action  could  not  be  main- 
tained." 3  In  the  following  year,4  the  language  of  Brian, 
C.  J.,  is  most  explicit :  "  If  there  be  an  accord  between  you 
and  me  that  you  shall  make  me  an  estate  of  certain  land, 
and  you  enfeoff  another,  shall  I  not  have  an  action  on  my 
case?  Quasi  diceret  sic.  Et  Curia  cum  illo.  For  when  he 
undertook  to  make  the  feoffment,  and  conveyed  to  another, 
this  is  a  great  misfeasance." 

In  the  Exchequer  Chamber  case,  and  in  the  case  following, 
in  1476,  the  purchase-money  was  paid  at  the  time  of  the  bar- 
gain. Whether  the  same  was  true  of  the  two  cases  in  the 
time  of  Henry  VII.,  the  reports  do  not  disclose.  It  is  possi- 
ble, but  by  no  means  clear,  that  a  payment  contemporaneous 
with  the  promise  was  not  at  that  time  deemed  essential.  Be 
that  as  it  may,  if  money  was  in  fact  paid  for  a  promise  to 
convey  land,  the  breach  of  the  promise  by  a  conveyance  to  a 
stranger  was  certainly,  as  already  seen,  an  actionable  deceit 

1  Y.  B.  20  H.  VI.  34,  pi.  4. 

2  Y.  B.  16  Ed.  IV.  9,  pi.  7. 

8  Y.  B.  2  H.  VII.  12,  pi.  15. 
4  Y.  B.  3  H.  VII.  14,  pi.  20. 


59.     AMES:  HISTORY  OF  ASSUMPSIT       273 

by  the  time  of  Henry  VII.  This  being  so,  it  must,  in  the 
nature  of  things,  be  only  a  question  of  time  when  the  breach 
of  such  a  promise,  by  making  no  conveyance  at  all,  would 
also  be  a  cause  of  action.  The  mischief  to  the  plaintiff  was 
identical  in  both  cases.  The  distinction  between  misfeasance 
and  nonfeasance,  in  the  case  of  promises  given  for  money, 
was  altogether  too  shadowy  to  be  maintained.  It  was  for- 
mally abandoned  in  1504,  as  appears  from  the  following  ex- 
tract from  the  opinion  of  Frowyk,  C.  J. :  "  And  so,  if  I  sell 
you  ten  acres  of  land,  parcel  of  my  manor,  and  then  make 
a  feoffment  of  my  manor,  you  shall  have  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  pay- 
ment of  money,  and  still  it  sounds  only  in  covenant  and  with- 
out payment  of  money  in  this  case  no  remedy,  and  still  if  he 
builds  it  and  misbuilds,  action  on  the  case  lies.  And  also  for 
nonfeasance,  if  money  paid  case  lies."  l 

The  gist  of  the  action  being  the  deceit  in  breaking  a  prom- 
ise on  the  faith  of  which  the  plaintiff  had  been  induced  to  part 
with  his  money  or  other  property,  it  was  obviously  immaterial 
whether  the  promisor  or  a  third  person  got  the  benefit  of 
what  the  plaintiff  gave  up.  It  was  accordingly  decided,  in 
1520,  that  one  who  sold  goods  to  a  third  person  on  the  faith 
of  the  defendant's  promise  that  the  price  should  be  paid, 
might  have  an  action  on  the  case  upon  the  promise.2  This 
decision  introduced  the  whole  law  of  parol  guaranty.  Cases 
in  which  the  plaintiff  gave  his  time  or  labor  were  as  much 
within  the  principle  of  the  new  action  as  those  in  which  he 
parted  with  property.  And  this  fact  was  speedily  recognized. 
In  Saint-Germain's  book,  published  in  1522,  the  student  of 

1  Keilw.  77,  pi.  25,  which  seems  to  be  the  same  case  as  Y.  B.  20  H. 
VII.  8,  pi.  18.  21  H.  VII.  41,  pi.  66,  per  Fineux,  C.  J.,  accord.    See  also 
Brooke's  allusion  to  an  "  action  on  the  case  upon  an  assumpsit  pro  tali 
summa"    Br.  Ab.  Disceit,  pi.  29. 

2  Y.  B.  12  H.  VIII.  11,  pi.  3. 


274  VI.     CONTRACTS 

law  thus  defines  the  liability  of  a  promisor :  "  If  he  to  whom 
the  promise  is  made  have  a  charge  by  reason  of  the  promise, 
...  he  shall  have  an  action  for  that  thing  that  was  prom- 
ised, though  he  that  made  the  promise  have  no  worldly  profit 
by  it."  *  From  that  day  to  this  a  detriment  has  always  been 
deemed  a  valid  consideration  for  a  promise  if  incurred  at  the 
promisor's  request.2 

Jealousy  of  the  growing  jurisdiction  of  the  chancellors  was 
doubtless  a  potent  influence  in  bringing  the  common-law 
judges  to  the  point  of  allowing  the  action  of  assumpsit. 
Fairfax,  J.,  in  1481,  advised  pleaders  to  pay  more  attention 
to  actions  on  the  case,  and  thereby  diminish  the  resort  to 
Chancery;  3  and  Fineux,  C.  J.,  remarked,  after  that  advice 
had  been  followed  and  sanctioned  by  the  courts,  that  it  was 
no  longer  necessary  to  use  a  subpoena  in  such  cases.4 

That  equity  gave  relief,  before  1500,  to  a  plaintiff  who 
had  incurred  detriment  on  the  faith  of  the  defendant's  prom- 
ise, is  reasonably  clear,  although  there  are  but  three  reported 
cases.5  In  one  of  them,  between  1377  and  1399,  the  defend- 
ant promised  to  convey  certain  land  to  the  plaintiff,  who, 
trusting  in  the  promise,  paid  out  money  in  travelling  to 
London  and  consulting  counsel;  and  upon  the  defendant's 
refusal  to  convey,  prayed  for  a  subpoena  to  compel  the  de- 
fendant to  answer  of  his  "  disceit."  6  The  bill  sounds  in  tort 

1  Doct.  and  Stud.  Dial.  II.  c.  24. 

2  Y.  B.  27  H.  VIII.  24S  pi.  3;  [Pecke  v.  Redman  (1555),  Dy.  113,  the 
earliest    reported   case   of   assumpsit   upon    mutual   promises] ;    Webb's 
Case    (1578),  4  Leon.   110;   Richards   v.   Bartlett    (1584),   1    Leon.   19; 
Baxter  v.  Read  (1585),  3  Dyer,  272,  b.  note;  Foster  v.  Scarlett  (1588), 
Cro.  El.  70;  Sturlyn  v.  Albany   (1588),  Cro.  El.  57;    [Kirby  v.  Eccles 
(1590)  1  Leon.  186];  Greenleaf  v.  Barker  (1590),  Cro.  El.  193;  Knight 
v.  Rushworth  (1596),  Cro.  El.  469;    Bane's  Case   (1611),  9  Rep.  93,  b. 
These  authorities  disprove  the  remark  of  Mr.  Justice  Holmes  (Common 
Law,  287)  that  "  the  law  oscillated  for  a  time  in  the  direction  of  reward, 
as  the  true  essence  of  consideration."     In  the  cases  cited  in  support  of 
that  remark  the  argument  turned  upon  the  point  of  benefit,  as  the  only 
arguable  point.     The  idea  that  the  plaintiff  in  those  cases  had,  in  fact, 
incurred  a  detriment  would  have  seemed  preposterous.    Professor  Lang- 
dell's  observations    (Summary   of  Contract,   §  64)    are   open  to   similar 
criticism. 

3  Y.  B.  21  Ed.  IV.  23,  pi.  6. 

4  Y.  B.  21  H.  VII.  41,  pi.  66. 

5  [Two  other  cases  are  given  by  Mr.  S.  R.  Bird  in  the  Antiquary  vol. 
IV,  p.  185  and  vol.  V,  p.  38.     See  8  Harv.  L.  Rev.  256;  infra,  Essay 
No.  60.] 

6  2  Cal.  Ch.  II. 


59.     AMES:  HISTORY  OF  ASSUMPSIT       275 

rather  than  in  contract,  and  inasmuch  as  even  cestuis  que 
use  could  not  compel  a  conveyance  by  their  feoffees  to  use 
at  this  time,  its  object  was  doubtless  not  specific  perform- 
ance, but  reimbursement  for  the  expenses  incurred.  Appil- 
garth  v.  Sergeantson1  (1438)  was  also  a  bill  for  restitutio 
in  integrum,  savoring  strongly  of  tort.  It  was  brought 
against  a  defendant  who  had  obtained  the  plaintiff's  money 
by  promising  to  marry  her,  and  who  had  then  married  an- 
other in  "  grete  deceit."  2  The  remaining  case,  thirty  years 
later,3  does  not  differ  materially  from  the  other  two.  The 
defendant,  having  induced  the  plaintiff  to  become  the  pro- 
curator of  his  benefice,  by  a  promise  to  save  him  harmless 
for  the  occupancy,  secretly  resigned  his  benefice,  and  the 
plaintiff,  being  afterwards  vexed  for  the  occupancy,  obtained 
relief  by  subpoena. 

Both  in  equity  4  and  at  law,  therefore,  a  remediable  breach 
of  a  parol  promise  was  originally  conceived  of  as  a  deceit; 
that  is,  a  tort.  Assumpsit  was  in  several  instances  distin- 
guished from  contract.5  •  By  a  natural  transition,  however, 
actions  upon  parol  promises  came  to  be  regarded  as  actions 
ex  contractu.®  Damages  were  soon  assessed,  not  upon  the 

1 1  Cal.  Ch.  XLI. 

2  An  action  on  the  case  was  allowed  under  similar  circumstances  in 
1505,  Anon.,  Cro.  El.  79  (cited). 

8  Y.  B.  8  Ed.  IV.  4,  pi.  11. 

*  The  Chancellor  (Stillington)  says,  it  is  true,  that  a  subpoena  will 
lie  against  a  carpenter  for  breach  of  his  promise  to  build.  But  neither 
this  remark,  nor  the  statement  in  Diversity  of  Courts,  Chancerie,  justi- 
fies a  belief  that  equity  ever  enforced  gratuitous  parol  promises  [8 
Harv.  L.  Rev.  255-258,  Infra,  Essay  No.  60].  But  see  Holmes,  1  L.  Q. 
Rev.  172,  173;  Salmond,  3  L.  Q.  Rev.  173.  The  practice  of  decreeing 
specific  performance  of  any  promises  can  hardly  be  much  older  than 
the  middle  of  the  sixteenth  century.  Bro.  Ab.  Act.  on  Case,  pi.  72. 
[See  1  Ames,  Cas.  in  Eq.  Jur.  37  n.  3.]  The  invalidity  of  a  nudum 
pactum  was  clearly  stated  by  Saint-Germain  in  1522.  Doct.  &  St. 
Dial.  II.  Ch.  22,  23,  and  24.  [See  similar  statements  in  A  Little 
Treatise  Concerning  Writs  of  Subpoena.  Doct.  &  St.  (18  ed.)  Appen- 
dix, 17,  Hargrave  L.  Tr.,  334,  which  was  written  shortly  after  1523.] 

5Y.  B.  27  H.  VIII.  24,  25,  pi.  3;  Sidenham  v.  Worlington,  2  Leon. 
224;  Banks  v.  Thwaites,  3  Leon.  73;  Shandois  v.  Simpson,  Cro.  El.  880; 
Sands  v.  Trevilian,  Cro.  Car.  107,  193.  [Doct.  &  St.  Dial.  II.  Ch.  23  and 
24;  Bret  v.  J.  S.  Cro.  El.  756;  Milles  v.  Milles,  Cro.  Car.  241;  Jordan 
v.  Tompkins,  6  Mod.  77.  Contract  meant  originally  what  we  now  call 
a  real  contract,  that  is,  a  contract  arising  from  the  receipt  of  a  quid 
pro  quo,  in  other  words,  a  debt.  See  8  Harv.  L.  Rev.  253,  n.  3,  Infra, 
Essay  No.  60.] 

6  Williams  v.  Hide,  Palm.  548,  549 ;    Wirral  v.  Brand,  1  Lev.  165. 


276  VI.     CONTRACTS 

theory  of  reimbursement  for  the  loss  of  the  thing  given  for 
the  promise,  but  upon  the  principle  of  compensation  for  the 
failure  to  obtain  the  thing  promised.  Again,  the  liability 
for  a  tort  ended  with  the  life  of  the  wrong-doer.  But  after 
the  struggle  of  a  century,  it  was  finally  decided  that  the  per- 
sonal representatives  of  a  deceased  person  were  as  fully  liable 
for  his  assumpsits  as  for  his  covenants.1  Assumpsit,  however, 
long  retained  certain  traces  of  its  delictual  origin.  The  plea 
of  not  guilty  was  good  after  verdict,  "  because  there  is  a 
disceit  alleged."  2  Chief  Baron  Gilbert  explains  the  com- 
prehensive scope  of  the  general  issue  in  assumpsit  by  the  fact 
that  "  the  gist  of  the  action  is  the  fraud  and  delusion  that 
the  defendant  hath  offered  the  plaintiff  in  not  performing 
the  promise  he  had  made,  and  on  relying  on  which  the  plaintiff 
is  hurt."  3  This  allegation  of  deceit,  in  the  familiar  form : 
"Yet  the  said  C.  D.,  not  regarding  his  said  promise,  but 
contriving  and  fraudulently  intending,  craftily  and  subtly, 
to  deceive  and  defraud  the  plaintiff,"  etc.,4  which  persisted 
to  the  present  century,  is  an  unmistakeable  mark  of  the  gene- 
alogy of  the  action.  Finally,  the  consideration  must  move 
from  the  plaintiff  to-day,  because  only  he  who  had  incurred 
detriment  upon  the  faith  of  the  defendant's  promise,  could 
maintain  the  action  on  the  case  for  deceit  in  the  time  of 
Henry  VII. 

The  view  here  advanced  as  to  the  origin  of  special  assump- 
sit, although  reached  by  an  independent  process,  accords 
with,  it  will  be  seen,  and  confirms,  it  is  hoped,  the  theory 
first  proclaimed  by  Judge  Hare. 

The  origin  of  indebitatus  assumpsit  may  be  explained  in 
a  few  words:  Slade's  case,5  decided  in  1603,  is  commonly 
thought  to  be  the  source  of  this  action.6  But  this  is  a  mis- 

1  Legate  i>.  Pinchion,  9  Rep.  86;    Sanders  v.  Esterby,  Cro.  Jac.  417. 
2Corby  v.  Brown,  Cro.  El.  470;    Elrington  v.  Doshant,  1  Lev.  142. 

3  Common  Pleas,  53. 

4  In  Impey's   King's   Bench    (5  ed.),  486,  the  pleader  is  directed  to 
omit  these  words  in  declaring  against  a  Peer:  "For  the  Lords  have  ad- 
judged it  a  very  high  contempt  and  misdemeanor,,   in  any  person,  to 
charge  them  with  any  species  of  fraud  or  deceit." 

5 4  Rep.  92  a;    Yelv.  21;    Moore,  433,  667. 

6Langdell,  Cont.  §48;  Pollock,  Cont.  (4  ed.)  144;  Hare,  Cont.  136, 
137;  Salmond,  3  L.  Q.  Rev.  179,  infra,  Essay  No.  61. 


59-.     AMES:  HISTORY  OF  ASSUMPSIT       277 

apprehension.  Indebitatus  assumpsit  upon  an  express  prom- 
ise is  at  least  sixty  years  older  than  Slade's  case.1  The  evi- 
dence of  its  existence  throughout  the  last  half  of  the  six- 
teenth century  is  conclusive.  There  is  a  note  by  Brooke,  who 
died  in  1558,  as  follows :  "  Where  one  is  indebted  to  me,  and 
he  promises  to  pay  before  Michaelmas,  I  may  have  an  action 
of  debt  on  the  contract,  or  an  action  on  the  case  on  the  prom- 
ise."2  In  Manwood  v.  Burston  3  (1588),  Manwood,  C.  B., 
speaks  of  "  three  manners  of  considerations  upon  which  an 
assumpsit  may  be  grounded:  (1)  A  debt  precedent,  (2) 
where  he  to  whom  such  a  promise  is  made  is  damnified  by 
doing  anything,  or  spends  his  labor  at  the  instance  of  the 
promisor,  although  no  benefit  comes  to  the  promisor  .  .  . 
(3)  or  there  is  a  present  consideration."4 

The  Queen's  Bench  went  even  further.  In  that  court  proof 
of  a  simple  contract  debt,  without  an  express  promise,  would 
support  an  indebitatus  assumpsit?  The  other  courts,  for 
many  years,  resisted  this  doctrine.  Judgments  against  a 
debtor  in  the  Queen's  Bench  upon  an  implied  assumpsit  were 
several  times  reversed  in  the  Exchequer  Chamber.6  But  the 
Queen's  Bench  refused  to  be  bound  by  these  reversals,  and  it 
is  the  final  triumph  of  that  court  that  is  signalized  by  Slade's 
case,  in  which  the  jury  found  that  "  there  was  no  other 
promise  or  assumption,  but  only  the  said  bargain ; "  and  yet 
all  the  judges  of  England  resolved  "  that  every  contract 
executory  implied  an  assumpsit." 

Indebitatus  a$sumpsit,  unlike  special  assumpsit,  did  not 
create  a  new  substantive  right ;  it  was  primarily  only  a  new 
form  of  procedure,  whose  introduction  was  facilitated  by  the 
same  circumstances  which  had  already  made  Case  concurrent 

1  Br.  Ab.  Act.  on  Case,  pi.  105  (1542). 

2  Br.  Ab.  Act.  on  Case,  pi.  5. 

3  2  Leon.  203,  204. 

4  See  further,  Anon.   (B.  R.   1572),  Dal.  84,  pi.  35;    Pulmant's  case 
(C.  B.  1585),  4  Leon.  2;  Anon.   (C.  B.  1587),  Godb.  98,  pi.  12;  Gill  v. 
Harwood  (C.  B.  1587),  1  Leon,  61.    It  was  even  decided  that  assumpsit 
would   lie  upon    a   subsequent   promise   to   pay   a   precedent   debt   due 
by  covenant.     Ashbrooke  v.   Snape    (B.   R.   1591),  Cro.  El.  240.     But 
this  decision  was  not  followed. 

5  Edwards  v.  Burr    (1573),  Dal.  104;  Anon.    (1583),  Godb.   13;  Es- 
trigge  v.  Owles  (1589),  3  Leon.  200. 

6  Hinson  v.   Burridge,  Moore,  701;    Turges  v.  Beecher,  Moore,  694; 
Paramour  v.  Payne,  Moore,  703;    Maylard  v.  Kester,  Moore,  711. 


278  VI.     CONTRACTS 

with  Detinue.  But  as  an  express  assumpsit  was  requisite  to 
charge  the  bailee,  so  it  was  for  a  long  time  indispensable  to 
charge  a  debtor.  The  basis  or  cause  of  the  action  was,  of 
course,  the  same  as  the  basis  of  debt,  i.  e.,  quid  pro  quo,  or 
benefit.  This  may  explain  the  inveterate  practice  of  defining 
consideration  as  either  a  detriment  to  the  plaintiff  or  a  benefit 
to  the  defendant. 

Promises  not  being  binding  of  themselves,  but  only  because 
of  the  detriment  or  debt  for  which  they  were  given,  a  need 
was  naturally  felt  for  a  single  word  to  express  the  additional 
and  essential  requisite  of  all  parol  contracts.  No  word  was 
so  apt  for  the  purpose  as  the  word  "  consideration."  Soon 
after  the  reign  of  Henry  VIII.,  if  not  earlier,  it  became  the 
practice,  in  pleading,  to  lay  all  assumpsits  as  made  in  con- 
sideratione  of  the  detriment  or  debt.1  And  these  words  be- 
came the  peculiar  mark  of  the  technical  action  of  assumpsit, 
as  distinguished  from  other  actions  on  the  case  against  sur- 
geons or  carpenters,  bailees  and  warranting  vendors,  in  which, 
as  we  have  seen,  it  was  still  customary  to  allege  an  under- 
taking by  the  defendant. 

It  follows,  from  what  has  been  written,  that  the  theory  that 
consideration  is  a  "  modification  of  quid  pro  quo"  is  not  ten- 
able. On  the  one  hand,  the  consideration  of  indebitatus 
assumpsit  was  identical  with  quid  pro  quo,  and  not  a  modi- 
fication of  it.  On  the  other  hand,  the  consideration  of  detri- 
ment was  developed  in  a  field  of  the  law  remote  from  debt; 
and,  in  view  of  the  sharp  contrast  that  has  always  been  drawn 
between  special  assumpsit  and  debt,  it  is  impossible  to  believe 
that  the  basis  of  the  one  action  was  evolved  from  that  of 
the  other.2 

JIn  Joscelin  v.  Sheldon  (1557),  3  Leon.  4,  Moore,  13,  Ben.  &  Dal.  57, 
pi.  53,  s.  c.,  a  promise  is  described  as  made  "in  consideration  of,"  etc. 
An  examination  of  the  original  records  might  disclose  an  earlier  use  of 
these  technical  words  in  connection  with  an  assumpsit.  But  it  is  a  note- 
worthy fact,  that  in  the  reports  of  the  half-dozen  cases  of  the  reign  of 
Henry  VIII.  and  Edward  VI.  the  word  "consideration"  does  not  ap- 
pear [In  Whorwood  v.  Gibbons  (1577),  Goldsb.  48,  Leon.  61,  s.  c.,  it 
was  said  by  the  Court  to  be  "  a  Common  Courte  in  actions  upon  the 
case  against  him,  by  whom  the  debt  is  due,  to  declare  without  any 
words  in  consideratione"]. 

2  See  also  Mr.  Salmond's  criticism  of  this  theory,  in  3  L.  Q.  Rev. 
178;  infra,  Essay  No.  61. 


59.     AMES:  HISTORY  OF  AS  SUMP  SIT       279 

Nor  can  that  other  theory  be  admitted  by  which  consider- 
ation was  borrowed  from  equity,  as  a  modification  of  the 
Roman  "  causa"  The  word  "  consideration  "  was  doubtless 
first  used  in  equity;  but  without  any  technical  significance 
before  the  sixteenth  century.1  Consideration  in  its  essence, 
however,  whether  in  the  form  of  detriment  or  debt,  is  a  com- 
mon-law growth.  Uses  arising  upon  a  bargain  or  covenant 
were  of  too  late  introduction  to  have  any  influence  upon  the 
law  of  assumpsit.  Two  out  of  three  judges  questioned  their 
validity  in  1505,  a  year  after  assumpsit  was  definitively  es- 
tablished.2 But  we  may  go  further.  Not  only  was  the  con- 
sideration of  the  common-law  action  of  assumpsit  not  bor- 
rowed from  equity,  but,  on  the  contrary,  the  consideration, 
which  gave  validity  to  parol  uses  by  bargain  and  agreement, 
was  borrowed  from  the  common  law.  The  bargain  and  sale 
of  a  use,  as  well  as  the  agreement  to  stand  seised,  were  not 
executory  contracts,  but  conveyances.  No  action  at  law 
could  ever  be  brought  against  a  bargainer  or  covenantor.3 
The  absolute  owner  of  land  was  conceived  of  as  having  in 
himself  two  distinct  things,  the  seisin  and  the  use.  As  he 
might  make  livery  of  seisin  and  retain  the  use,  so  he  was 
permitted,  at  last,  to  grant  away  the  use  and  keep  the  seisin. 
The  grant  of  the  use  was  furthermore  assimilated  to  the 
grant  of  a  chattel  or  money.  A  quid  pro  quo,  or  a  deed, 
being  essential  to  the  transfer  of  a  chattel  or  the  grant  of 
a  debt,4  it  was  required  also  in  the  grant  of  a  use.  Equity 
might  conceivably  have  enforced  uses  wherever  the  grant  was 
by  deed.  But  the  chancellors  declined  to  carry  the  innovation 

131  H.  VI.  Fitz.  Ab.  Subp.  pi.  23;  Fowler  v.  Iwardby,  1  Cal.  Ch. 
LXVIII.;  Pole  v.  Richard,  1  Cal.  Ch.  LXXXVIII.;  Y.  B.  20  H.  VII. 
10,  pi.  20;  Br.  Feff.  al  use,  pi.  40;  Benl.  &  Dal.  16,  pi.  20. 

2  Y.  B.  21  VIII.  18,  pi.  30.     The  consideration  of  blood  was  not  suf- 
ficient to   create  a  use,  until  the  decision,  in  1565,  of  Sharrington  v. 
Strotton,  Plow.  295.     [See  2  Sel.  Ess.  Ang.  Am.  Leg.  Hist.  746.] 

3  Plow.   298,  308;   Buckley  v.   Simonds,   Winch,  35-37,   59,  61;   Hore 
v.  Dix,  1   Sid.  25,  27;  Pybus  v,  Mitford,  2  Lev.  75,  77. 

4  That  a  debt,  as  suggested  by  Professor  Langdell  (Contracts,  §  100), 
was   regarded   as   a  grant,  finds   strong  confirmation  in  the   fact  that 
Debt  was  the  exclusive  remedy  upon  a  covenant  to  pay  money  down 
to   a  late  period.     Chawner  v.   Bowes,   Godb.   217.     See,   also,  1    Roll. 
Ab.  518,  pi.  2  and  3;  Brown  v.  Hancock,  Hetl.  110,  111,  per  Barkley. 
[In   Evans  v.  Thomas,   Cro.  Jac.   172,  Tanfield  J.   said  of  a  covenant 
that  A  should  have  a  certain  flock  of  sheep:  "the  covenant  is  a  grant." 
Similarly  Coke  C.  J.  in  Rutland's  Case  2  Brownl.  338.] 


280  VI.     CONTRACTS 

so  far  as  this.  They  enforced  only  those  gratuitous  cove- 
nants which  tended  to  "  the  establishment  of  the  house  "  of 
the  covenantor;  in  other  words,  covenants  made  in  consider- 
ation of  blood  or  marriage.1 


II.  •  IMPLIED    ASSUMPSIT 

Nothing  impresses  the  student  of  the  Common  Law  more 
than  its  extraordinary  conservatism.  The  reader  will  easily 
call  to  mind  numerous  rules  in  the  law  of  Real  Property  and 
Pleading  which  illustrate  the  persistency  of  archaic  reverence 
for  form  and  of  scholastic  methods  of  interpretation.  But 
these  same  characteristics  will  be  found  in  almost  any  branch 
of  the  law  by  one  who  carries  his  investigations  as  far  back 
as  the  beginning  of  the  seventeenth  century.  The  history  of 
Assumpsit,  for  example,  although  the  fact  seems  to  have 
escaped  general  observation,  furnishes  a  convincing  illustra- 
tion of  the  vitality  of  mediaeval  conceptions. 

We  have  had  occasion,  in  the  preceding  part  of  this  paper, 
to  see  that  an  express  assumpsit  was  for  a  long  time  essential 
in  the  actions  of  tort  against  surgeons  or  carpenters,  and 
bailees.  It  also  appeared  that  in  the  action  of  tort  for  a  false 
warranty  the  vendor's  affirmation  as  to  quality  or  title  was 
not  admissible,  before  the  time  of  Lord  Holt,  as  a  substitute 
for  an  express  undertaking.  We  are  quite  prepared,  there- 
fore, to  find  that  the  action  of  Assumpsit  proper  was,  for 
generations,  maintainable  only  upon  an  express  promise. 
Furthermore,  Assumpsit  would  not  lie  in  certain  cases  even 
though  there  were  an  express  promise.  For  example,  a  de- 
fendant who  promised  to  pay  a  sum  certain  in  exchange  for 
a  quid  pro  quo  was,  before  Slade's  case,2  chargeable  only  in 
Debt  unless  he  made  a  second  promise  to  pay  the  debt. 

It  was  only  by  degrees  that  the  scope  of  the  action  was 
enlarged.  The  extension  was  in  three  directions.  In  the 
first  place,  Indebitatus  Assumpsit  became  concurrent  with 
Debt  upon  a  simple  contract  in  all  cases.  Secondly,  proof 

1  Bacon,  St.  of  Uses  (Rowe's  ed.),  13-14.     [See  8  Harv.  L.  Rev.  259, 
Infra,  Essay  No.  60.] 

2  4  Rep.  92  a. 


59.     AMES:  HISTORY  OF  ASSUMPSIT       281 

of  a  promise  implied  in  fact,  that  is,  a  promise  inferred  from 
circumstantial  evidence,  was  at  length  deemed  sufficient  to 
support  an  action.  Finally,  Indebitatus  Assumpsit  became 
the  appropriate  form  of  action  upon  constructive  obligations, 
or  quasi-contracts  for  the  payment  of  money.  These  three 
developments  will  be  considered  separately. 

Although  Indebitatus  Assumpsit  upon  an  express  promise 
was  valuable  so  far  as  it  went,  it  could  not  be  resorted  to  by 
plaintiffs  in  the  majority  of  cases  as  a  protection  from  wager 
of  law  by  their  debtors.  For  the  promise  to  be  proved  must 
not  only  be  express,  but  subsequent  to  the  debt.  In  an  anony- 
mous case,  in  1572,  Manwood  objected  to  the  count  that  the 
plaintiff  "  ought  to  have  said  quod  postea  assumpsit,  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.  conces- 
serunt."  l  The  consideration  in  this  class  of  cases  was  ac- 
cordingly described  as  a  "  debt  precedent."  2  The  necessity 
of  a  subsequent  promise  is  conspicuously  shown  by  the  case 
of  Maylard  v.  Kester.3  The  allegations  of  the  count  were, 
that,  in  consideration  that  the  plaintiff  would  sell  and  deliver 
to  tfie  defendant  certain  goods,  the  latter  promised  to  pay 
therefor  a  certain  price ;  that  the  plaintiff  did  sell  and  deliver 
the  goods,  and  that  the  defendant  did  not  pay  according  to 
his  promise  and  undertaking.  The  plaintiff  had  a  verdict 
and  judgment  thereon  in  the  Queen's  Bench;  but  the  judg- 
ment was  reversed  in  the  Exchequer  Chamber  "  because  Debt 
lies  properly,  and  not  an  action  on  the  case;  the  matter 
proving  a  perfect  sale  and  contract." 

What  was  the  peculiar  significance  of  the  subsequent 
promise?  Why  should  the  same  courts  which,  for  sixty 
years  before  Slade's  case,  sanctioned  the  action  of  Assumpsit 
upon  a  promise  in  consideration  of  a  precedent  debt,  refuse, 
during  the  same  period,  to  allow  the  action,  when  the  receipt 
of  the  quid  pro  quo  was  contemporaneous  with  or  subsequent 

1  Dal.  84,  pi.  35. 

8  Manwood  v.  Burston,  2  Leon.  203,  204;  supra,  16,  17. 

8  Moore,  711   (1601). 


282  VI.     CONTRACTS 

to  the  promise?  The  solution  of  this  puzzle  must  be  sought, 
it  is  believed,  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.1  A  bargain  and 
sale,  and  a  loan,  were  exchanges  of  values.  The  action  of 
debt,  as  several  writers  have  remarked,  was  a  real  rather 
than  a  personal  action.  The  judgment  was  not  for  damages, 
but  for  the  recovery  of  a  debt,  regarded  as  a  res.  The  con- 
ception of  a  debt  was  clearly  expressed  by  Vaughan,  J.,  who, 
some  seventy  years  after  Slade's  case,  spoke  of  the  action  of 
Assumpsit  as  "  much  inferior  and  ignobler  than  the  action 
of  Debt,"  and  characterized  the  rule  that  every  contract 
executory  implies  a  promise  as  "  a  false  gloss,  thereby  to  turn 
actions  of  Debt  into  actions  on  the  case ;  for  contracts  of 
debt  are  reciprocal  grants."  2 

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  relations,  fundamentally  distinct,  might  be  produced 
by  one  and  the  same  set  of  words.  This  implied  a  liberality 
of  interpretation  to  which  the  lawyers  of  the  sixteenth  cen- 
tury had  not  generally  attained.  To  them  it  seemed  more 
natural  to  consider  that  the  force  of  the  words  of  agreement 
was  spent  in  creating  the  debt.  Hence  the  necessity  of  a  new 
promise,  if  the  creditor  desired  to  charge  his  debtor  in  As- 
sumpsit. 

As  the  actions  of  Assumpsit  multiplied,  however,  it  would 
naturally  become  more  and  more  difficult  to  discriminate 
between  promises  to  pay  money  and  promises  to  do  other 
things.  The  recognition  of  an  agreement  to  pay  money  for 
a  quid  pro  quo  in  its  double  aspect,  that  is,  as  being  both 
a  grant  and  a  promise,  and  the  consequent  admissibility  of 
Assumpsit,  with  its  procedural  advantages,  as  a  concurrent 

*See  Langdell,  Contracts,  §100. 

2Edgecomb  v.  Dee,  Vaugh.  89,  101.  ["Si  homme  countast  simple- 
ment  d'un  graunte  d'un  dette,  il  ne  sera  mye  resceu  saunz  especialte.'* 
Per  Sharshulle,  J.,  Y.  B.  11  &  12  Ed.  Ill  587.] 


59.     AMES:  HISTORY  OF  ASSUMPSIT       283 

remedy  with  Debt,  were  inevitable.  It  was  accordingly  re- 
solved by  all  the  justices  and  barons  in  Slade's  case,  in  1603, 
although  "  there  was  no  other  promise  or  assumption  but 
the  said  bargain,"  that  "  every  contract  executory  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,  in  that  case  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  recip- 
rocal actions  upon  the  case  as  well  as  actions  of  Debt."  In- 
asmuch as  the  judges  were  giving  a  new  interpretation  to  an 
old  transaction;  since  they,  in  pursuance  of  the  presumed 
intention  of  the  parties,  were  working  out  a  promise  from 
words  of  agreement  which  had  hitherto  been  conceived  of  as 
sounding  only  in  grant,  it  was  not  unnatural  that  they  should 
speak  of  the  promise  thus  evolved  as  an  "  implied  assumpsit" 
But  the  promise  was  in  no  sense  a  fiction.  The  fictitious  as- 
sumpsit, by  means  of  which  the  action  of  Indebitatus  Assump- 
sit acquired  its  greatest  expansion,  was  an  innovation  many 
years  later  than  Slade's  case. 

The  account  just  given  of  the  development  of  Indebitatus 
Assumpsit,  although  novel,  seems  to  find  confirmation  in  the 
parallel  development  of  the  action  of  Covenant.  Strange  as 
it  may  seem,  Covenant  was  not  the  normal  remedy  upon  a 
covenant  to  pay  a  definite  amount  of  money  or  chattels. 
Such  a  covenant  being  regarded  as  a  grant  of  the  money 
or  chattels,  Debt  was  the  appropriate  action  for  their  recov- 
ery. The  writer  has  discovered  no  case  in  which  a  plaintiff 
succeeded  in  an  action  of  Covenant,  where  the  claim  was  for 
a  sum  certain,  antecedent  to  the  seventeenth  century ;  but  in 
an  action  of  Debt  upon  such  a  claim,  in  the  Queen's  Bench, 
in  1585,  "  it  was  holden  by  the  Court  that  an  action  of  Cove- 
nant lay  upon  it,  as  well  as  an  action  of  Debt,  at  the  election 
of  the  plaintiff."  1  The  same  right  of  election  was  conceded 

1  Anon.  (1585)  3  Leon.  119.  [Per  Curiam.  "  If  one  covenant  to  pay 
me  £100  at  such  a  day,  an  action  of  debt  lieth,  a  fortiori  when  the 


284  VI.     CONTRACTS 

by  the  Court  in  two  cases  1  in  1609,  in  terms  which  indicate 
that  the  privilege  was  of  recent  introduction.  It  does  not 
appear  in  what  court  these  cases  were  decided ;  but  it  seems 
probable  that  they  were  in  the  King's  Bench,  for,  in  Chaw- 
ner  v.  Bowes,2  in  the  Common  Bench,  four  years  later,  War- 
burton  and  Nichols,  JJ.,  said :  "  If  a  man  covenant  to  pay 
£10  at  a  day  certain,  an  action  of  debt  lieth  for  the  money, 
and  not  an  action  of  covenant."  As  late  as  1628,  in  the  same 
court,  Berkeley,  Serjeant,  in  answer  to  the  objection  that 
Covenant  did  not  lie,  but  Debt,  against  a  defendant  who  had 
covenanted  to  perform  an  agreement,  and  had  obliged  him- 
self in  a  certain  sum  for  its  performance,  admitted  that,  "  if 
a  covenant  had  been  for  £30,  then  debt  only  lies ;  but  here 
it  is  to  perform  an  agreement."  3  Precisely  when  the  Com- 
mon Bench  adopted  the  practice  of  the  King's  Bench  it  is, 
perhaps,  impossible  to  discover ;  but  the  change  was  prob- 
ably effected  before  the  end  of  the  reign  of  Charles  I. 

That  Covenant  became  concurrent  with  Debt  on  a  specialty 
so  many  years  after  Assumpsit  was  allowed  as  a  substitute 
for  Debt  on  a  simple  contract,  was  doubtless  due  to  the  fact 
that  there  was  no  wager  of  law  in  Debt  on  a  sealed  obligation. 

Although  the  right  to  a  trial  by  jury  was  the  principal 
reason  for  a  creditor's  preference  for  Indebitatus  Assumpsit , 
the  new  action  very  soon  gave  plaintiffs  a  privilege  which 
must  have  contributed  greatly  to  its  popularity.  In  declar- 
ing in  Debt,  except  possibly  upon  an  account  stated,  the 
plaintiff  was  required  to  set  forth  his  cause  of  action  with 
great  particularity.  Thus,  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  per- 
sons to  whom  money  was  paid  with  the  amounts  of  each  pay- 
ment, the  names  of  the  persons  from  whom  money  was  re- 
words of  the  deed  are  covenant  and  grant,  for  the  word  covenant  some- 
times sounds  in  covenant,  sometimes  in  contract  secundum  subjectam 
materiam."  Anon.  (1591)  1  Leon.  208,  pi.  290.] 

1  Anon.,  1  Roll.  Ab.  518,  pi.  3;  Strong  v.  Watts,  1  Roll.  Ab.  518,  pi.  & 

See  also  Mordant  v.  Watts,  Brownl.  19;  Anon.,  Sty.  31;  Frere  v.  , 

Sty.  133;  Norrice's  Case,  Hard.  178. 

2Godb.  217. 

8  Brown  v.  Hancock,  Hetl.  110,  111.  [But  in  Sicklemore  v.  Simonds, 
(1600)  Cro.  El.  797  the  Common  Bench  said  lessor  might  have  his 
option  of  debt  or  covenant  upon  the  lessee's  covenant  to  pay  the  rent.} 


59.     AMES:  HISTORY  OF  AS  SUMP  SIT       285 

ceived  to  the  use  of  the  plaintiff  with  the  amounts  of  each 
receipt,  the  precise  nature  and  amount  of  services  rendered. 
In  Indebitatus  Assumpsit,  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,1  money  lent,2 
money  paid  at  the  defendant's  request,3  money  had  and  re- 
ceived to  the  plaintiff's  use,4  work  and  labor  at  the  defend- 
ant's request,5  or  upon  an  account  stated,6  and  that  the  de- 
fendant being  so  indebted  promised  to  pay.  This  was  the 
origin  of  the  common  counts. 

In  all  the  cases  thus  far  considered  there  was  a  definite 
bargain  or  agreement  between  the  plaintiff  and  defendant. 
But  instances,  of  course,  occurred  in  which  the  parties  did 
not  reduce  their  transactions  to  the  form  of  a  distinct  bar- 
gain. Services  would  be  rendered,  for  example,  by  a  tailor  or 
other  workman,  an  innkeeper  or  common  carrier,  without  any 
agreement  as  to  the  amount  of  compensation.  Such  cases 
present  no  difficulty  at  the  present  day,  but  for  centuries 
there  was  no  common-law  action  by  which  compensation 
could  be  recovered.  Debt  could  not  be  maintained,  for  that 
action  was  always  for  the  recovery  of  a  liquidated  amount.7 
Assumpsit  would  not  lie  for  want  of  a  promise.  There  was 
confessedly  no  express  promise;  to  raise  by  implication  a 
promise  to  pay  as  much  as  the  plaintiff  reasonably  deserved 
for  his  goods  or  services  was  to  break  with  the  most  vener- 
able traditions.  The  lawyer  of  to-day,  familiar  with  the 

1  Hughes  v.  Rowbotham   (1592),  Poph.  30,  31;  Woodford  v.  Deacon 
(1608),  Cro.  Jac.  206;  Gardiner  v.  Bellingham  (1612),  Hob.  5,  1  Roll. 
R.  24,  s.  c. 

2  Rooke  v.  Rooke,  (1610),  Cro.  Jac.  245,  Yelv.  175,  s.  c. 
8Rooke  v.  Rooke,  supra;  Moore  v.  Moore   (1611),  1  Bulst.  169. 
*Babington  v.  Lambert   (1616),  Moore,  854. 

6  Russell  v.  Collins   (1669),  1  Sid.  425,  1  Mod.  8,  1  Vent.  44,  2  Keb. 
552,  s.  c. 

6Brinsley  v.  Partridge  (1611),  Hob.  88;  Vale  v.  Egles  (1605),  Yelv. 
70,  Cro.  Jac.  69. 

7  "If  I  bring  cloth  to  a  tailor  to  have  a  cloak  made,  if  the  price  is 
not  ascertained  beforehand  that  I  shall  pay  for  the  work,  he  shall  not 
have  an  action  against  me."    Y.  B.  12  Ed.  IV.  9,  pi.  22,  per  Brian,  C.  J. 
To  the  same  effect,  Young  v.  Ashburnham  (1587),  3  Leon.  161;  Mason 
V.  Welland   (1688),  Skin.  238,  242. 


286  VI.     CONTRACTS 

ethical  character  of  the  law  as  now  administered,  can  hardly 
fail  to  be  startled  when  he  discovers  how  slowly  the  conception 
of  a  promise  implied  in  fact,  as  the  equivalent  of  an  express 
promise,  made  its  way  in  our  law. 

There  seems  to  have  been  no  recognition  of  the  right  to 
sue  upon  an  implied  quantum  meruit  before  1609.  The  inn- 
keeper was  the  first  to  profit  by  the  innovation.  Reciprocity 
demanded  that,  if  the  law  imposed  a  duty  upon  the  innkeeper 
to  receive  and  keep  safely,  it  should  also  imply  a  promise  on 
the  part  of  the  guest  to  pay  what  was  reasonable.1  The 
tailor  was  in  the  same  case  with  the  innkeeper,  and  his  right 
to  recover  upon  a  quantum  meruit  was  recognized  in  1610.2 
Sheppard,3  citing  a  case  of  the  year  1632,  says:  "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."  But  it  was  only  four  years  before  that  the 
Court  in  a  similar  case  were  of  opinion  that  an  action  lay  if 
the  party  either  before  or  after  the  services  rendered  prom- 
ised to  pay  for  them,  "  but  not  without  a  special  promise." ' 
In  Nichols  v.  More5  (1661)  a  common  carrier  resisted  an 
action  for  negligence,  because,  no  price  for  the  carriage 
being  agreed  upon,  he  was  without  remedy  against  the  bailor. 
The  Court,  however,  answered  that  "  the  carrier  may  declare 
upon  a  quantum  meruit  like  a  tailor,  and  therefore  shall  be 
charged."  6  As  late  as  1697,  Powell,  J.,  speaking  of  the 
sale  of  goods  for  so  much  as  they  were  worth,  thought  it 
worth  while  to  add :  "  And  note  the  very  taking  up  of  the 
goods  implies  such  a  contract."  7 

1  "  It  is  an  implied  promise  of  every  part,  that  is,  of  the  part  of 
the  innkeeper,  that  he  will  preserve  the  goods  of  his  guest,  and  of  the 
part  of  the  guest,  that  he  will  pay  all  duties   and   charges   which  he 
caused  in  the  house."    Warbrooke  v.  Griffin,  2  Brownl.  254,  Moore,  876, 
877,  s.  c. 

2  Six  Carpenters'  Case,  8  Rep.  147  a.     But  the  statement  that  the 
tailor  could  recover  in  Debt  is  contradicted  by  precedent  and  following 
authorities. 

3  Actions  on  the  Case   (2  ed.),  50.     [Shepp.  Faithf.  Counsellor,   (3 
ed.)   125.] 

*Thursby  v.  Warren,  W.  Jones,  208. 

61  Sid.  36,    See  also  Boson  v.  Sandford  (1689),  per  Eyres,  J. 
6  The  defendant's  objection  was  similar  to  the  one  raised  in  Y.  B. 
3  H.  VI.  36,  pi.  33,  supra,  11,  n.  2. 
'Hayward  v.  Davenport,  Comb.  426. 


59.     AMES:  HISTORY  OF  ASSUMPSIT       287 

The  right  of  one,  who  signed  a  bond  as  surety  for  another 
without  insisting  upon  a  counter  bond  or  express  promise  to 
save  harmless,  to  charge  his  principal  upon  an  implied  con- 
tract of  indemnity,  was  developed  nearly  a  century  later. 
In  Bosden  v.  Thinne  *  (1603)  the  plaintiff  at  the  defendant's 
request  had  executed  a  bond  as  surety  for  one  F,  and  had  been 
cast  in  a  judgment  thereon.  The  judges  all  agreed  that  upon 
the  first  request  only  Assumpsit  did  not  lie,  Yelverton,  J. 
adding :  "  For  a  bare  request  does  not  imply  any  promise, 
as  if  I  say  to  a  merchant,  I  pray  trust  J.  S.  with  £100,  and 
he  does  so,  this  is  of  his  own  head,  and  he  shall  not  charge 
me,  unless  I  say  I  will  see  you  paid,  or  the  like."  The  ab- 
sence of  any  remedy  at  law  was  conceded  in  1662.2  It  was 
said  by  Buller,  J.,  in  Toussaint  v.  Martinnant,3  that  the  first 
case  in  which  a  surety,  who  had  paid  the  creditor,  succeeded 
in  an  action  at  law  against  the  principal  for  indemnity,  was 
before  Gould,  J.,4  at  Dorchester,  "which  was  decided  on 
equitable  grounds."  The  innovation  seems  to  be  due,  how- 
ever, to  Lord  Mansfield,  who  ruled  in  favor  of  a  surety  in 
Decker  v.  Pope,  in  1757,  "  observing  that  when  a  debtor 
desires  another  person  to  be  bound  with  him  or  for  him,  and 
the  surety  is  afterwards  obliged  to  pay  the  debt,  this  is  a 
sufficient  consideration  to  raise  a  promise  in  law."  5 

The  late  development  of  the  implied  contract  to  pay  quan- 
tum meruit,  and  to  indemnify  a  surety,  would  be  the  more 
surprising,  but  for  the  fact  that  Equity  gave  relief  to  tailors 
and  the  like,  and  to  sureties  long  before  the  common  law 
helped  them.  Spence,  although  at  a  loss  to  account  for  the 
jurisdiction,  mentions  a  suit  brought  in  Chancery,  in  1567, 
by  a  tailor,  to  recover  the  amount  due  for  clothes  furnished. 
The  suit  was  referred  to  the  queen's  tailor,  to  ascertain  the 
amount  due,  and  upon  his  report  a  decree  was  made.  The 

*Yelv.  40. 

*  Scott  v.  Stephenson,  1  Lev.  71,  1  Sid.  89,  s.  c.    But  see  Shepp.  Act. 
on  Case  (Q  ed.)  49. 

8  2  T.  R.  100,  105. 

*  Justice  of  the  Common   Pleas,   1763-1794. 

B  1  Sel.  N.  P.  (13  ed.)  91.  [Lord  Eldon  said  in  Stirling  v.  Forrester, 
3  Bligh,  575,  590:  "Until  I  became  acquainted  with  that  case  [Exall 
v.  Partridge,  (1799)  8  T.  R.  310]  I  thought  the  remedy  must  be  in 
equity."] 


288  VI.     CONTRACTS 

learned  writer  adds  that  "  there  were  suits  for  wages  and 
many  others  of  like  nature."  1  A  surety  who  had  no  counter 
bond  filed  a  bill  against  his  principal,  in  1632,  in  a  case  which 
would  seem  to  have  been  one  of  the  earliest  of  the  kind,  for 
the  reporter,  after  stating  that  there  was  a  decree  for  the 
plaintiff,  adds  "  quod  nota"  2 

The  account  just  given  of  the  promise  implied  in  fact 
seems  to  throw  much  light  upon  the  doctrine  of  "  executed 
consideration."  One  who  had  incurred  a  detriment  at  the 
request  of  another,  by  rendering  service,  or  by  becoming  a 
surety  with  the  reasonable  expectation  of  compensation  or 
indemnity,  was  as  fully  entitled,  in  point  of  justice,  to  enforce 
his  claim  at  law,  as  one  who  had  acted  in  a  similar  way  upon 
the  faith  of  an  express  promise.  Nothing  was  wanting  but 
an  express  assumpsit  to  make  a  perfect  cause  of  action.  If 
the  defendant  saw  fit  to  make  an  express  assumpsit,  even  after 
the  detriment  was  incurred,  the  temptation  to  treat  this  as 
removing  the  technical  objection  to  the  plaintiff's  claim  at 
law  might  be  expected  to  be,  as  it  proved  to  be,  irresistible.3 
The  already  established  practice  of  suing  upon  a  promise 
to  pay  a  precedent  debt,  made  it  the  more  easy  to  support 
an  action  upon  a  promise  when  the  antecedent  act  of  the 
plaintiff  at  the  defendant's  request  did  not  create  a  strict 
debt.4  To  bring  the  new  doctrine  into  harmony  with  the 
accepted  theory  of  consideration,  the  promise  was  "  coupled 
with  "  the  prior  request  by  the  fiction  of  relation,5  or,  by  a 

*1  Spence,  Eq.  Jur.  694.  [Daie  v.  Hampden  (1628)  Toth.  174. 
"Concerning  salary  for  a  cure."] 

2  Ford  v.  Stobridge,  Nels.  Ch.  24.  [In  1613,  in  Wormlington  v. 
Evans,  Godb.  243,  a  surety  was  denied  the  right  of  contribution  even 
in  equity.  The  right  was  given,  however,  early  in  the  reign  of  Charles  I. 
Fleet  v.  Charnock  (1630),  Nels.  10,  Toth.  41  s.  c.;  Parkhurst  v.  Bathurst 
(1630),  Toth.  41;  Wilcox  v.  Dunsmore  (1637),  Toth.  41.  The  first  in- 
timation of  a  right  to  contribution  at  law  is  believed  to  be  the  dictum 
of  Lord  Kenyon  in  Turner  v.  Davies  (1796),  2  Esp.  479.  The  right  to 
contribution  at  law  was  established  in  England  by  Cowell  v.  Edwards 
(1800)  2  B.  &  P.  268.  But  in  North  Carolina,  in  1801,  a  surety  failed 
because  he  proceeded  at  law  instead  of  in  equity.  Carrington  v.  Carson, 
Cam.  &  Nor.  Conf.  R.  216.] 

8  The  view  here  suggested  is  in  accordance  with  what  has  been  called, 
in  a  questioning  spirit,  the  "  ingenious  explanation  "  of  Professor  Lang- 
dell.  Holmes,  Common  Law,  286.  The  general  tenor  of  this  paper  will 
serve,  it  is  hoped,  to  remove  the  doubts  of  the  learned  critic. 

*Sidenham  v.  Worlington  (1585),  2  Leon.  224. 

6Langdell,  Contracts,  §92. 


59.     AMES:  HISTORY  OF  ASSUMPSIT       289 

similar  fiction,  the  consideration  was  brought  forward  or  con- 
tinued to  the  promise.1  This  fiction  doubtless  enabled  plain- 
tiffs sometimes  to  recover,  although  the  promise  was  not  iden- 
tical with  what  would  be  implied,  and  in  some  cases  even 
where  it  would  be  impossible  to  imply  any  promise.2  But 
after  the  conception  of  a  promise  implied  in  fact  was  recog- 
nized and  understood,  these  anomalies  gradually  disappeared, 
and  the  subsequent  promise  came  to  be  regarded  in  its  true 
light  of  cogent  evidence  of  what  the  plaintiff  deserved  for 
what  he  had  done  at  the  defendant's  request. 

The  non-existence  in  early  times,  of  the  promise  implied 
in  fact,  also  makes  intelligible  a  distinction  in  the  law  of  lien, 
which  greatly  puzzled  Lord  Ellenborough  and  his  colleagues. 
Williams,  J.,  is  reported  to  have  said  in  1605 :  "  If  I  put  my 
cloths  to  a  tailor  to  make  up,  he  may  keep  them  till  satisfac- 
tion for  the  making.  But  if  I  contract  with  a  tailor  that  he 
shall  have  so  much  for  the  making  of  my  apparel,  he  cannot 
keep  them  till  satisfaction  for  the  making." 3  In  the  one 
case,  having  no  remedy  by  action,  he  was  allowed  a  lien,  to 
prevent  intolerable  hardship.  In  the  other,  as  he  had  a  right 
to  sue  on  the  express  agreement,  it  was  not  thought  necessary 
to  give  him  the  additional  benefit  of  a  lien.4  As  soon  as  the 
right  to  recover  upon  an  implied  quantum  meruit  was  ad- 
mitted, the  reason  for  this  distinction  vanished.  But  the 
acquisition  of  a  new  remedy  by  action  did  not  displace  the 
old  remedy  by  lien.5  The  old  rule,  expressed,  however,  in  the 
new  form  of  a  distinction  between  an  express  and  an  implied 
contract,  survived  to  the  present  century.6  At  length,  in 

1  Langdell,  Contracts,  §  92 ;  1  Vin.  Ab.  280,  pi.  13. 

2  Langdell,  Contracts,  §§  93,  94. 
8  2  Roll.  Ab.  92,  pi.  1,  2. 

4  An  innkeeper  had  the  further  right  of  selling  a  horse  as  soon  as  it 
had  eaten  its  value,  if  there  were  no  express  contract.  For,  as  he  had  no 
right  of  action  for  its  keep,  the  horse  thereafter  was  like  a  damnosa 
hereditas.  The  Hostler's  case  (1605),  Yelv.  66,  67.  This  right  of  sale 
disappeared  afterwards  with  the  reason  upon  which  it  was  founded. 
Jones  v.  Pearle,  1  Stra.  556. 

5 "And  it  was  resolved  that  an  innkeeper  may  detain  a  horse  for 
his  feeding,  and  yet  he  may  have  an  action  on  the  case  for  the  meat." 
Watbrooke  v.  Griffith  (1609),  Moore,  876,  877,  Q  Brownl.  254  s.  c. 

6  Chapman  v.  Allen,  Cro.  Car.  271;  Collins  v.  Ongly,  Selw.  N.  P.  (13 
ed.)  1312,  n.  (x),  per  Lord  Holt;  Brennan  v.  Currint  (1755),  Say.  224, 
Buller,  N.  P.  (7  ed.)  45,  n.  (c) ;  Cowell  v.  Simpson,  16  Ves.  275,  281, 
per  Lord  Eldon;  Scarfe  v.  Morgan,  4  M.  &  W.  270,  283,  per  Parke,  B. 


290  VI.     CONTRACTS 


1816,  the  judges  of  the  King's  Bench,  unable  to  see  any  rea- 
son in  the  distinction,  and  unaware  of  its  origin,  declared  the 
old  dicta  erroneous,  and  allowed  a  miller  his  lien  in  the  case 
of  an  express  contract.1 

The  career  of  the  agistor's  lien  is  also  interesting.  That 
such  a  lien  existed  before  the  days  of  implied  contracts  is  in- 
trinsically probable,  and  is  also  indicated  by  several  of  the 
books.2  But  in  Chapman  v.  Allen  3  (1632),  the  first  reported 
decision  involving  the  agistor's  right  of  detainer,  there  hap- 
pened to  be  an  express  contract,  and  the  lien  was  accordingly 
disallowed.  When  a  similar  case  arose  two  centuries  later  in 
Jackson  v.  Cummins,4  this  precedent  was  deemed  controlling, 
and,  as  the  old  distinction  between  express  and  implied  con- 
tracts was  no  longer  recognized,  the  agistor  ceased  to  have 
a  lien  in  any  case.  Thus  was  established  the  modern  and 
artificial  distinction  in  the  law  of  lien  between  bailees  for 
agistment  and  "  bailees  who  spend  their  labor  and  skill  in 
the  improvement  of  the  chattels  "  delivered  to  them.5 

The  value  of  the  discovery  of  the  implied  promise  in  fact 
was  exemplified  further  in  the  case  of  a  parol  submission  to 
an  award.  If  the  arbitrators  awarded  the  payment  of  a  sum 
of  money,  the  money  was  recoverable  in  debt,  since  an  award, 
after  the  analogy  of  a  judgment,  created  a  debt.  But  if  the 
award  was  for  the  performance  of  a  collateral  act,  as,  for 
example,  the  execution  of  a  release,  there  was,  originally,  no 
mode  of  compelling  compliance  with  the  award,  unless  the 
parties  expressly  promised  to  abide  by  the  decision  of  the 
arbitrators.  Tilford  v.  French6  (1663)  is  a  case  in  point. 
So,  also,  seven  years  later,  "  it  was  said  by  Twisden,  J.,  that 
if  two  submit  to  an  award,  this  contains  not  a  reciprocal 
promise  to  perform;  but  there  must  be  an  express  promise 

1  Chase  v.  Westmore,  5  M.  &  Sel.  180. 

2  2  Roll.   Ab.  85,  pi.  4    (1604);   Mackerney  v.  Erwin    (1628),  Hutt. 
101;  Chapman  v.  Allen  (1632),  2  Roll.  Ab.  92,  pi.  6,  Cro.  Car.  271,  s.  c. 
[Bro.  Ab.  Distresse,  67.] 

8  Roll.  Ab.  92,  pi.  6,  Cro.  Car.  271,  s.  c. 

4  5  M.  &  W.  342. 

6  The  agistor  has  a  lien  by  the  Scotch  law.  Schouler,  Bailments 
(2  ed.),  §122. 

1  Lev.  113,  1  Sid.  160,  1  Keb.  599,  635.  To  the  same  effect,  Pen- 
ruddock  v.  Monteagle  (1612),  1  Roll.  Ab.  7,  pi.  3;  Browne  v.  Downing 
(1620),  2  Roll.  R.  194;  Read  v.  Palmer  (1648),  Al.  69,  70. 


59.     AMES:  HISTORY  OF  AS  SUM  PS  IT       291 

to  ground  an  action  upon."1  This  doctrine  was  abandoned 
by  the  time  of  Lord  Holt,  who,  after  referring  to  the  ancient 
rule,  said :  "  But  the  contrary  has  been  held  since ;  for  if 
two  men  submit  to  the  award  of  a  third  person,  they  do  also 
thereby  promise  expressly  to  abide  by  his  determination,  for 
agreeing  to  refer  is  a  promise  in  itself."  2 

In  the  cases  already  considered  the  innovation  of  Assumpsit 
upon  a  promise  implied  in  fact  gave  a  remedy  by  action, 
where  none  existed  before.  In  several  other  cases  the  action 
upon  such  a  promise  furnished  not  a  new,  but  a  concurrent 
remedy.  Assumpsit,  as  we  have  seen,3  was  allowed,  in  the 
time  of  Charles  I.,  in  competition  with  Detinue  and  Case 
against  a  bailee  for  custody.  At  a  later  period  Lord  Holt 
suggested  that  one  might  "  turn  an  action  against  a  common 
carrier  into  a  special  assumpsit  (which  the  law  implies)  in 
respect  of  his  hire."4  Dale  v.  Hall5  (1750)  is  understood 
to  have  been  the  first  reported  case  in  which  that  suggestion 
was  followed.  Assumpsit  could  also  be  brought  against  an 
innkeeper.6 

Account  was  originally  the  sole  form  of  action  against  a 
factor  or  bailiff.  But  in  Wilkins  v.  Wilkins7  (1689)  three 
of  the  judges  favored  an  action  of  Assumpsit  against  a  fac- 
tor because  the  action  was  brought  upon  an  express  promise, 
and  not  upon  a  promise  by  implication.  Lord  Holt,  however, 
in  the  same  case,  attached  no  importance  to  the  distinction 
between  an  express  and  an  implied  promise,  remarking  that 
"  there  is  no  case  where  a  man  acts  as  bailiff,  but  he  promises 
to  render  an  account."  8  The  requisite  of  an  express  promise 

1Anon.,  1  Vent.  69. 

8  Squire  v.  Grevell  (1703),  6  Mod.  34,  35.     See  similar  statements  by 
Lord  Holt  in  Allen  v.  Harris  (1695),  1  Ld.  Ray.  122;  Freeman  v.  Bar- 
nard (1696),  1  Ld.  Ray.  248;  Purslow  v.  Daily  (1704),  2  Ld.  Ray.  1039; 
Lupart  v.  Welson   (1708),  11  Mod.  171. 

9  Supra,  7. 

*  Comb.  334. 

*  1  Wils.  281.    See,  also,  Brown  v.  Dixon,  1  T.  R.  274,  per  Buller,  J. 
[And  yet  in  Powell  v.  Layton  (1806)  2  B.  &  P.  N.  R.  365,  370,  Sir  J. 
Mansfield  said :  "  How  an  action  against  a  carrier  on  the  custom  ever 
came  to  be  considered  an  action  in  tort  I  do  not  understand."] 

'Morgan  v.  Ravey,  6  H.  &  N.  265.  But  see  Stanley  v.  Bircher,  78 
Mo.  245. 

7  Carth.  89,  1  Salk.  9. 

8  [But  in  Spurraway  v.  Rogers    (1700),  Lord  Holt  is  reported  as 
allowing  assumpsit  against  a  factor  only  upon  an  express  promise.] 


292  VI.     CONTRACTS 

was  heard  of  no  more.  Assumpsit  became  theoretically  con- 
current with  Account  against  a  bailiff  or  factor  in  all  cases, 
although  by  reason  of  the  competing  jurisdiction  of  equity, 
actions  at  common  law  were  rare.1 

In  the  early  cases  of  bills  and  notes  the  holders  declared  in 
an  action  on  the  case  upon  the  custom  of  merchants.  "  Af- 
terwards they  came  to  declare  upon  an  as  sump  sit.9' 

It  remains  to  consider  the  development  of  Indebitatus  As- 
sumpsit  as  a  remedy  upon  quasi-contracts,  or,  as  they  have 
been  commonly  called,  contracts  implied  in  law.  The  con- 
tract implied  in  fact,  as  we  have  seen,  is  a  true  contract.  But 
the  obligation  created  by  law  is  no  contract  at  all.  Neither 
mutual  assent  nor  consideration  is  essential  to  its  validity. 
It  is  enforced  regardless  of  the  intention  of  the  obligor.  It 
resembles  the  true  contract,  however,  in  one  important  par- 
ticular. The  duty  of  the  obligor  is  a  positive  one,  that  is, 
to  act.  In  this  respect  they  both  differ  from  obligations  the 
breach  of  which  constitutes  a  tort,  where  the  duty  is  negative, 
that  is,  to  forbear.  Inasmuch  as  it  has  been  customary  to 
regard  all  obligations  as  arising  either  ex  contractu  or  ex 
delict o,  it  is  readily  seen  why  obligations  created  by  law 
should  have  been  treated  as  contracts.  These  constructive 
duties  are  more  aptly  defined  in  the  Roman  law  as  obligations 
quasi  ex  contractu  than  by  our  ambiguous  "  implied  con- 
tracts." 3 

Quasi-contracts  are  founded  (1)  upon  a  record,  (2)  upon 
a  statutory,  official,  or  customary  duty,  or  (3)  upon  the 
fundamental  principle  of  justice  that  no  one  ought  unjustly 
to  enrich  himself  at  the  expense  of  another. 

As  Assumpsit  cannot  be  brought  upon  a  record,  the  first 
class  of  quasi-contracts  need  not  be  considered  here.  Many 
of  the  statutory,  official,  or  customary  duties,  also,  e\g.,  the 
duty  of  the  innkeeper  to  entertain,4  of  the  carrier  to  carry,5 

lrrompkins  v.  Willshaer,  5  Taunt.  430. 

2  Milton's  Case   (1668),  Hard.  485,  per  Lord  Hale. 

8  In  Finch,  Law,  150,  they  are  called  "  as  it  were  "  contracts. 

*Keil.  50,  pi.  4. 

5  Jackson  v.  Rogers,  2  Show.  327;  Anon.,  12  Mod.  3. 


69.     AMES:  HISTORY  OF  ASSUMPSIT       293 

of  the  smith  to  shoe,1  of  the  chaplain  to  read  prayers,  of  the 
rector  to  keep  the  rectory  in  repair,2  of  the  ftdei-commiss  to 
maintain  the  estate,3  of  the  finder  to  keep  with  care,4  of  the 
sheriff  and  other  officers  to  perform  the  functions  of  their 
office,5  of  the  ship-owner  to  keep  medicines  on  his  ship,6  and 
the  like,  which  are  enforced  by  an  action  on  the  case,  are 
beyond  the  scope  of  this  essay,  since  Indebitatus  Assumpsit 
lies  only  where  the  duty  is  to  pay  money  [or  a  definite 
amount  of  chattels].  For  the  same  reason  we  are  not  con- 
cerned here  with  a  large  class  of  duties  growing  out  of  the 
principle  of  unjust  enrichment,  namely,  constructive  or 
quasi  trusts,  which  are  enforced,  of  course,  only  in  equity. 

Debt  was  originally  the  remedy  for  the  enforcement  of  a 
statutory  or  customary  duty  for  the  payment  of  money.  The 
right  to  sue  in  Indebitatus  Assumpsit  was  gained  only  after 
a  struggle.  The  assumpsit  in  such  cases  was  a  pure  fiction. 
These  cases  were  not,  therefore,  within  the  principle  of 
Slade's  case,  which  required,  as  we  have  seen,7  a  genuine 
agreement.  The  authorities  leave  no  room  for  doubt  upon 
this  point,  although  it  is  a  common  opinion  that,  from  the 
time  of  that  case,  Indebitatus  Assumpsit  was  concurrent  with 
Debt  in  all  cases,  unless  the  debt  was  due  by  record,  specialty, 
or  for  rent. 

The  earliest  reported  case  of  Indebitatus  Assumpsit  upon 
a  customary  duty  seems  to  be  City  of  London  v.  Goree,8 
decided  seventy  years  later  than  Slade's  case.  "  Assumpsit 
for  money  due  by  custom  for  scavage.  Upon  non- Assumpsit 
the  jury  found  the  duty  to  be  due,  but  that  no  promise  was 
expressly  made.  And  whether  Assumpsit  lies  for  this  money 
thus  due  by  custom,  without  express  promise,  was  the  ques- 
tion. Resolved  it  does."  On  the  authority  of  that  case, 
an  officer  of  a  corporation  was  charged  in  Assumpsit,  three 

*Steinson  v.  Heath,  Lev.  400. 
2  Bryan  v.  Clay,  1  E.  &  B.  38. 
8  Batthyany  v.  Walford,  36  Ch.  Div.  269. 
*  Story,  Bailments  (8  ed.),  §§85-87. 
8  3  Bl.  Com.  165. 

8  Couch  v.  Steel,  3  E.  &  B.  402.     But  see  Atkinson  v.  Newcastle  Co., 
2  Ex.  Div.  441. 
1  Supra,  55,  56. 
8  2  Lev.  174,  1  Vent.  298,  3  Keb.  677,  Freem.  433,  s.  c. 


294  VI.     CONTRACTS 

years  later,  for  money  forfeited  under  a  by-law.1  So,  also, 
in  1688,  a  copyholder  was  held  liable  in  this  form  of  action 
for  a  customary  fine  due  on  the  death  of  the  lord,  although 
it  was  objected  "  that  no  Indebitatus  Assumpsit  lieth  where 
the  cause  of  action  is  grounded  on  a  custom."  2  Lord  Holt 
had  not  regarded  these  extensions  of  Indebitatus  Assumpsit 
with  favor.3  Accordingly,  in  York  v.  Toun,4  when  the  de- 
fendant urged  that  such  an  action  would  not  lie  for  a  fine 
imposed  for  not  holding  the  office  of  sheriff,  "  for  how  can 
there  be  any  privity  of  assent  implied  when  a  fine  is  im- 
posed on  a  man  against  his  will?  "  the  learned  judge  replied: 
"  We  will  consider  very  well  of  this  matter ;  it  is  time  to  have 
these  actions  redressed.  It  is  hard  that  customs,  by-laws, 
rights  to  impose  fines,  charters,  and  everything,  should  be 
left  to  a  jury."  By  another  report  of  the  same  case,5 
"  Holt  seemed  inclined  for  the  defendant.  .  .  .  And  upon 
motion  of  the  plaintiff's  counsel,  that  it  might  stay  till 
the  next  term,  Holt,  C.  J.,  said  that  it  should  stay  till  dooms- 
day with  all  his  heart;  but  Rokesby,  J.,  seemed  to  be  of 
opinion  that  the  action  would  lie.  —  Et  adjournatur.  Note. 
A  day  or  two  after  I  met  the  Lord  Chief  Justice  Treby 
visiting  the  Lord  Chief  Justice  Holt  at  his  house,  and  Holt 
repeated  the  said  case  to  him,  as  a  new  attempt  to  extend 
the  Indebitatus  Assumpsit,  which  had  been  too  much  en- 
couraged already,  and  Treby,  C.  J.,  seemed  also  to  be  of 
the  same  opinion  with  Holt."  But  Rokesby's  opinion  finally 
prevailed.  The  new  action  continued  to  be  encouraged. 
Assumpsit  was  allowed  upon  a  foreign  judgment  in  1705,6 
and  the  "  metaphysical  notion  " 7  of  a  promise  implied  in 
law  became  fixed  in  our  law. 

1  Barber  Surgeons  v.  Pelson  (1679),  2  Lev.  252.     To  the  same  effect, 
Mayor  v.  Hunt  (1681),  2  Lev.  37,  Assumpsit  for  weighage;  Duppa  v. 
Gerard  (1688),  1  Show.  78,  Assumpsit  for  fees  of  knighthood.     [Tobacco 
Co.  v.  Loder,  16  Q.  B.  765.] 

2  Shuttleworth  v.  Garrett,  Comb.  151,  1  Show.  35,  Garth.  90,  3  Mod. 
240,  3  Lev.  261,  s.  c. 

3  [In  Smith  v.  Airey  6  Mod.  125,  129,  he  said:  "An  indebitatus  has 
been  brought  for  a  tenant  right  fine,  which  I  could  never  digest."    See 
also  Anon.  Farresly,  12.} 

*5  Mod.  444. 

81  Ld.  Ray.  502. 

•Dupleix  v.  De  Rover,  2  Vern.  540. 

7  Starke  v.  Cheeseman,  1  Ld.  Ray.  538. 


69.     AMES:  HISTORY  OF  ASSUMPS1T       295 

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,  has 
established  itself  very  gradually  in  the  Common  Law.  In- 
deed, one  seeks  in  vain  to-day  in  the  treatises  upon  the  Law 
of  Contract  for  an  adequate  account  of  the  nature,  im- 
portance, and  numerous  applications  of  this  principle.1 

The  most  fruitful  manifestations  of  this  doctrine  in  the 
early  law  are  to  be  found  in  the  action  of  Account.  One 
who  received  money  from  another  to  be  applied  in  a  par- 
ticular way  was  bound  to  give  an  account  of  his  stewardship. 
If  he  fulfilled  his  commission,  a  plea  to  that  effect  would 
be  a  valid  discharge.  If  he  failed  for  any  reason  to  apply 
the  money  in  the  mode  directed,  the  auditors  would  find  that 
the  amount  received  was  due  to  the  plaintiff,  who  would 
have  a  judgment  for  its  recovery.  If,  for  example,  the 
money  was  to  be  applied  in  payment  of  a  debt  erroneously 
supposed  to  be  due  from  the  plaintiff  to  the  defendant,  either 
because  of  a  mutual  mistake,  or  because  of  fraudulent  repre- 
sentations of  the  defendant,  the  intended  application  of 
the  money  being  impossible,  the  plaintiff  would  recover  the 
money  in  Account.2  Debt  would  also  lie  in  such  cases,  since, 
at  an  early  period,  Debt  became  concurrent  with  Account, 
when  the  object  of  the  action  was  to  recover  the  precise 
amount  received  by  the  defendant.3  By  means  of  the  fiction 
of  a  promise  implied  in  law  Indebitatus  Assumpsit  became 
concurrent  with  Debt,  and  thus  was  established  the  familiar 
action  of  Assumpsit  for  money  had  and  received  to  recover 
money  paid  to  the  defendant  by  mistake.  Bonnel  v.  Fowke  4 
(1657)  is,  perhaps,  the  first  action  of  the  kind.5 

1  The  readers  of  this  Review  will  be  interested  to  learn  that  this  gap 
in  our  legal  literature  is  about  to  be  filled  by  Professor  Keener's  "  Cases 
on  the  Law  of  Quasi-Contracts."  [Professor  Keener  published  his 
Cases  in  Quasi-Contracts  in  1888,  and  followed  it,  1893,  with  his  admi- 
rable treatise  on  the  same  subject.} 

2 Hewer  v.  Bartholomew  (1597),  Cro.  El.  614;  Anon.  (1696),  Comb. 
447;  Cavendish  v.  Middleton,  Cro.  Car.  141,  W.  Jones,  196,  s.  c. 

8  Lincoln  v.  Topliff  (1597),  Cro.  El.  644. 

42  Sid.  4.  To  the  same  effect,  Martin  v.  Sitwell  (1690),  1  Show. 
156,  Holt,  25;  Newdigate  v.  Dary  (1692),  1  Ld.  Ray.  742;  Palmer  v. 
Staveley  (1700),  12  Mod.  510. 

6  [In  Mead  v.  Death  (1700),  1  Ld.  Ray.  742.  However,  one  who  paid 
money  under  judgment  was  not  allowed  to  recover  it,  although  the 


296  VI.     CONTRACTS 

Although  Assumpsit  for  money  had  and  received  was  in 
its  infancy  merely  a  substitute  for  Account,  it  gradually 
outgrew  the  limits  of  that  action.  Thus,  if  one  was  induced 
by  fraudulent  representations  to  buy  property,  the  purchase- 
money  could  not  be  recovered  from  the  fraudulent  vendor 
by  the  action  of  Account.  For  a  time,  also,  Indebitatus 
Assumpsit  would  not  lie  in  such  a  case.  Lord  Holt  said 
in  1696 :  "  But  where  there  is  a  bargain,  though  a  corrupt 
one,  or  where  one  sells  goods  that  were  not  his  own,  I  will 
never  allow  an  indebitatus."  1  His  successors,  however,  al- 
lowed the  action.  Similarly,  Account  was  not  admissible 
for  the  recovery  of  money  paid  for  a  promise  which  the 
defendant  refused  to  perform.  Here,  too,  Debt  and  Indebi- 
tatus Assumpsit  did  not  at  once  transcend  the  bounds  of  the 
parent  action.2  But  in  1704  Lord  Holt  reluctantly  declined 
to  nonsuit  a  plaintiff  who  had  in  such  a  case  declared  in 
Indebitatus  Assumpsit.3  Again,  Account  could  not  be 
brought  for  money  acquired  by  a  tort,  for  example,  by  a 
disseisin  and  collection  of  rents  or  a  conversion  and  sale 
of  a  chattel.4  It  was  decided,  accordingly,  in  Philips  v. 
Thompson5  (1675),  that  Assumpsit  would  not  lie  for  the 
proceeds  of  a  conversion.  But  in  the  following  year  the 
usurper  of  an  office  was  charged  in  Assumpsit  for  the  profits 
of  the  office,  no  objection  being  taken  to  the  form  of  action.6 
Objection  was  made  in  a  similar  case  in  1677,  that  there 
was  no  privity  and  no  contract ;  but  the  Court,  in  disregard 
of  all  the  precedents  of  Account,  answered :  "  An  Indebi- 
tatus Assumpsit  will  lie  for  rent  received  by  one  who  pre- 
tends a  title ;  for  in  such  cases  an  Account  will  lie. 
Wherever  the  plaintiff  may  have  an  account  an  indebitatus 

judgment  was  afterwards  reversed.  The  rule  to-day  is,  of  course* 
otherwise.  Keener,  Quasi-Contracts,  417.] 

1Anon.,  Comb.  447. 

2  Brig's  Case  (1623),  Palm.  364;  Dewbery  v.  Chapman  (1695),  Holt. 
35;  Anon.  (1696),  Comb.  447. 

8  Holmes  v.  Hall,  6  Mod.  161,  Holt,  36,  s.  c.  See,  also,  Dutch  v. 
Warren  (1720),  I  Stra.  406,  2  Burr.  1010,  s.  c.;  Anon.,  1  Stra.  407. 

4 Tottenham  v.  Bedingfield  (1572),  Dal.  99,  3  Leon.  24,  Ow.,  35,  83, 
s.  c.  Accordingly,  an  account  of  the  profits  of  a  tort  cannot  be  obtained 
in  equity  to-day  except  as  an  incident  to  an  injunction. 

8  3  Lev.  191. 

6  Woodward  v.  Aston,  2  Mod.  95. 


69.     AMES:  HISTORY  OF  AS  SUMP  SIT       297 

will  lie."  These  precedents  were  deemed  conclusive  in 
Howard  v.  Wood2  (1678),  but  Lord  Scroggs  remarked: 
"  If  this  were  now  an  original  case,  we  are  agreed  it  would 
by  no  means  lie."  Assumpsit  soon  became  concurrent  with 
Trover,  where  the  goods  had  been  sold.3  Finally,  under 
the  influence  of  Lord  Mansfield,  the  action  was  so  much 
encouraged  that  it  became  almost  the  universal  remedy 
where  a  defendant  had  received  money  which  he  was  "  obliged 
by  the  ties  of  natural  justice  and  equity  to  refund."  4 

But  one  is  often  bound  by  those  same  ties  of  justice  and 
equity  to  pay  for  an  unjust  enrichment  enjoyed  at  the  ex- 
pense of  another,  although  no  money  has  been  received. 
The  quasi-contractual  liability  to  make  restitution  is  the 
same  in  reason,  whether,  for  example,  one  who  has  converted 
another's  goods  turns  them  into  money  or  consumes  them. 
Nor  is  any  distinction  drawn,  in  general,  between  the  two 
cases.  In  both  of  them  the  claim  for  the  amount  of  the 
unjust  enrichment  would  be  provable  in  the  bankruptcy 
of  the  wrong-doer  as  an  equitable  debt,5  and  would  survive 
against  his  representative.6  Nevertheless,  the  value  of  the 
goods  consumed  was  never  recoverable  in  Indebitatus  As- 
sumpsit.  There  was  a  certain  plausibility  in  the  fiction  by 
which  money  acquired  as  the  fruit  of  misconduct  was  treated 
as  money  received  to  the  use  of  the  party  wronged.  But 
the  difference  between  a  sale  and  a  tort  was  too  radical 
to  permit  the  use  of  Assumpsit  for  goods  sold  and  delivered 
where  the  defendant  had  wrongfully  consumed  the  plain- 
tiff's chattels.7 

The  same  difficulty  was  not  felt  in  regard  to  the  quasi- 
contractual  claim  for  the  value  of  services  rendered.  The 
averment,  in  the  count  in  Assumpsit,  of  an  indebtedness  for 


1  Arris  v.  Stukely,  2  Mod.  260. 

2  2  Show,  23,  2  Lev.  245,  Freem.  473,  478,  T.  Jones,  126,  s.  c. 

8  Jacob  v.  Allen  (1703),  1  Salk.  27;  Lamine  v.  Dorell  (1705),  2  Ld. 
Ray.  1216.  Philips  v.  Thompson,  supra,  was  overruled  in  Hitchins  v. 
Campbell,  2  W.  Bl.  827. 

*  Moses  v.  MacFerlan,  2  Burr.  1005,  1012. 

6 'Ex  p.  Adams,  8  Ch.  Div.  807,  819. 
Phillips  v.  Homfray,  24  Ch.  Div.  439. 

7  [This  statement  is  too  sweeping.  The  authorities  are  divided  on 
the  question.  Keener,  Quasi-Contracts,  192-195.] 


298  VI.     CONTRACTS 

work  and  labor  was  proved,  even  though  the  work  was  done 
by  the  plaintiff  or  his  servants  under  the  compulsion  of  the 
defendant.  Accordingly,  a  defendant,  who  enticed  away  the 
plaintiff's  apprentice  and  employed  him  as  a  mariner,  was 
charged  in  this  form  of  action  for  the  value  of  the  appren- 
tice's services.1 

By  similar  reasoning,  Assumpsit  for  use  and  occupation 
would  be  admissible  for  the  benefit  received  from  a  wrongful 
occupation  of  the  plaintiff's  land.  But  this  count,  for  special 
reasons  connected  with  the  nature  of  rent,  was  not  allowed 
upon  a  quasi-contract.2 

In  Assumpsit  for  money  paid  the  plaintiff  must  make  out 
a  payment  at  the  defendant's  request.  This  circumstance 
prevented  for  a  long  time  the  use  of  this  count  in  the  case 
of  quasi-contracts.  Towards  the  end  of  the  last  century, 
however,  the  difficulty  was  overcome  by  the  convenient  fic- 
tion that  the  law  would  imply  a  request  whenever  the  plain- 
tiff paid,  under  legal  compulsion,  what  the  defendant  was 
legally  compellable  to  pay.3 

The  main  outlines  of  the  history  of  Assumpsit  have  now 
been  indicated.  In  its  origin  an  action  of  tort,  it  was  soon 
transformed  into  an  action  of  contract,  becoming  afterwards 
a  remedy  where  there  was  neither  tort  nor  contract.  Based 
at  first  only  upon  an  express  promise,  it  was  afterwards 
supported  upon  an  implied  promise,  and  even  upon  a  ficti- 
tious promise.  Introduced  as  a  special  "manifestation  of  the 
action  on  the  case,  it  soon  acquired  the  dignity  of  a  distinct 
form  of  action,  which  superseded  Debt,  became  concurrent 
with  Account,  with  Case  upon  a  bailment,  a  warranty,  and 
bills  of  exchange,  and  competed  with  Equity  in  the  case  of 
the  essentially  equitable  quasi-contracts  growing  out  of  the 
principle  of  unjust  enrichment.  Surely  it  would  be  hard  to 
find  a  better  illustration  of  the  flexibility  and  power  of  self- 
development  of  the  Common  Law. 

1  Lightly  v.  Clouston,  1  Taunt.  112.     See,  also,  Gray  v.  Hill,  Ry.  & 
M.  420. 

2  But  see  Mayor  v.  Sanders,  3  B.  &  Ad.  411. 

8  Turner  v.  Davies  (1796),  2  Esp.  476;  Cowell  v.  Edwards  (1800),  2 
B.  &  P.  268;  Craythorne  v.  Swinburne  (1807),  14  Ves.  160,  164;  Exall 
v.  Partridge  (1799),  8  T.  R.  308. 


69.     AMES:  HISTORY  OF  AS  SUMP  SIT       299 


in. ASSUMPSIT    FOR   USE   AND    OCCUPATION 

In  the  foregoing  pages  it  was  stated  that  Indebitatus 
Assumpsit  for  use  and  occupation  was  not  allowed  upon  a 
quasi-contract,  for  special  reasons  connected  with  the  nature 
of  rent.  To  set  forth  briefly  these  reasons  is  the  object  of 
this  excursus. 

It  is  instructive  to  compare  a  lease  for  years,  reserving  a 
rent,  with  a  sale  of  goods.  In  both  cases,  debt  was  originally 
the  exclusive  action  for  the  recovery  of  the  amount  due.  In 
neither  case  was  the  duty  to  pay  conceived  of  as  arising  from 
a  contract  in  the  modern  sense  of  the  term.  Debt  for  goods 
sold  was  a  grant.  Debt  for  rent  was  a  reservation.  About 
the  middle  of  the  sixteenth  century  Assumpsit  was  allowed 
upon  an  express  promise  to  pay  a  precedent  debt  for  goods 
sold;  and  in  1602  it  was  decided  by  Slade's  case  that  the 
buyer's  words  sof  agreement,  which  had  before  operated  only 
as  a  grant,  imported  also  a  promise,  so  that  the  seller  might, 
without  more,  sue  in  Debt  or  Assumpsit,  at  his  option.1 

Neither  of  these  steps  was  taken  by  the  courts  in  the  case 
of  rent.  There  is  but  one  reported  case  of  a  successful  In- 
debitatus Assumpsit  for  rent  before  the  Statute  11  Geo.  II. 
c.  19,  §  14 ;  and  in  that  case  the  reporter  adds :  "  Note,  there 
was  not  any  exception  taken,  that  the  assumpsit  is  to  pay 
a  sum  for  rent;  which  is  a  real  and  special  duty,  as  strong 
as  upon  a  specialty;  and  in  such  case  this  action  lies  not, 
without  some  other  special  cause  of  promise."  2  This  note 
is  confirmed  by  several  cases  in  which  the  plaintiff  failed 
upon  such  a  count  as  well  when  there  was  a  subsequent  ex- 
press promise  3  as  where  there  was  no  such  promise.4 

The  chief  motive  for  making  Assumpsit  concurrent  with 
Debt  for  goods  sold  was  the  desire  to  evade  the  defendant's 

1  Supra,  p.  276. 

2  Slack  v.  Bowsal  (B.  R.  1623),  Cro.  Jac.  668. 

"Green  v.  Harrington  (C.  B.  1619),  1  Roll.  Ab.  8,  pi.  5,  Hob.  24, 
Hutt.  34,  Brownl.  14,  s.  c.;  Munday  v.  Baily  (B.  R.  1647),  Al.  29,  Anon. 
Sty.  53,  s.  c.;  Ayre  v.  Sils  (B.  'R.  1648),  Sty.  131;  Shuttleworth  v. 
Garrett  (B.  R.  1688),  Comb.  151,  per  Holt,  C.  J. 

4Reade  v.  Johnson  (C.  B.  1591),  Cro.  El.  242,  1  Leon.  155,  s.  c.; 
Neck  v.  Gubb  (B.  R.  1617),  1  Vin.  Ab.  271,  pi.  1,  2;  Brett  v.  Read 
(B.  R.  1634),  Cro.  Car.  343,  W.  Jones,  329,  s.  c. 


300  VI.     CONTRACTS 

1          r        *  ' 

wager  of  law.  This  motive  was  wanting  in  the  case  of  rent, 
for  in  Debt  for  rent  wager  of  law  was  not  permitted.1 
Again,  although  Assumpsit  was  the  only  remedy  against  the 
executor  of  a  buyer  or  borrower,  the  executor  of  a  lessee 
was  chargeable  in  Debt.  These  two  facts  seem  amply  to 
explain  the  refusal  of  the  courts  to  allow  an  Indebitatus 
Assumpsit  for  rent. 

But  although  the  landlord  was  not  permitted  to  proceed 
upon  an  Indebitatus  Assumpsit,  he  acquired,  after  a  time, 
the  right  to  sue  in  certain  cases,  in  special  Assumpsit,  as  well 
as  in  Debt.  This  innovation  originated  in  the  King's  Bench, 
which,  having  no  jurisdiction  by  original  writ  in  cases  of 
Debt,  was  naturally  inclined  to  extend  the  scope  of  trespass 
on  the  case,  of  which  Assumpsit  was  a  branch.  At  first  this 
court  attempted  to  justify  itself  by  construing  certain 
agreements  as  not  creating  a  rent.  For  example,  in  Sym- 
cock  v.  Payn,2  the  plaintiff  declared  that  "  in  consideration 
that  the  plaintiff  had  let  to  the  defendant  certain  land,  the 
defendant  promised  to  pay  pro  firma  prcedicta  terra  at  the 
year's  end,  £20."  "All  the  court  (absente  Popham)  held 
that  the  action  was  maintainable ;  for  it  is  not  a  rent,  but  a 
sum  in  gross;  for  which  he  making  a  promise  to  pay  it  in 
consideration  of  the  lease  the  action  lies."  3  This  judgment 
was  reversed  in  the  Exchequer  Chamber  in  accordance  with 
earlier  and  later  cases  in  the  Common  Bench.4 

In  the  reign  of  Charles  I.  the  rule  was  established  in  the 
King's  Bench  that  Assumpsit  would  lie  concurrently  with 
Debt,  if,  at  the  time  of  the  lease,  the  lessee  expressly  prom- 
ised to  pay  the  rent.  Acton  v.  Symonds  5  (1634)  was  the 
decisive  case.  The  count  was  upon  the  defendant's  promise 
to  pay  the  rent  in  consideration  that  the  plaintiff  would  de- 
mise a  house  to  him  for  three  years  at  a  rent  of  £25  per 
annum.  The  court  (except  Croke,  J.)  agreed  that  if  a  lease 

1Reade  v.  Johnson,  1  Leon.  155;  London  v.  Wood,  12  Mod.  669,  681. 
2Cro.  El.  756,  Winch.  15,  s.  c.  cited  (1621). 

3  See  also  Neck  v.  Gubb    (1617),  1  Vin.   Ab.  271,  pi.  3;   Dartnal  v. 
Morgan  (1620),  Cro.  Jac.  598. 

4  Clerk  v.  Palady   (1598),  Cro.   El.  859;  White  v.  Shorte    (1614),  1 
Roll.  Ab.  7,  pi.  4;  Ablain's  Case  (1621),  Winch,  15. 

B  W.  Jones,  364,  Cro.  Car.  414,  1  Roll.  Ab.  8,  pi.  10,  s.  c. 


59.     AMES:  HISTORY  OF  AS  SUMP  SIT       301 

for  years  be  made  rendering  rent,  an  action  on  the  case  lies 
not  upon  the  contract,  as  it  would  upon  a  personal  contract 
for  sale  of  a  horse  or  other  goods,  but  where  there  is  an  as- 
sumpsit  in  fact,  besides  the  contract  on  the  lease,  an  action 
on  this  assumpsit  is  maintainable.  In  the  report  in  Rolle's 
Abridgment  it  is  said :  "  The  action  lay,  because  it  appeared 
that  it  was  intended  by  the  parties  that  a  lease  should  be 
made  and  a  rent  reserved,  and  for  better  security  of  payment 
thereof  that  the  lessor  should  have  his  remedy  by  action  of 
debt  upon  the  reservation,  or  action  upon  this  collateral 
promise  at  his  election,  and  this  being  the  intent  at  the  be- 
ginning, the  making  of  the  lease  though  real  would  not  toll 
this  collateral  promise,  as  a  man  may  covenant  to  accept  a 
lease  at  a  certain  rent  and  to  pay  the  rent  according  to  the 
reservation,  for  they  are  two  things,  and  so  the  promise  of 
payment  is  a  thing  collateral  to  the  reservation,  which  will 
continue 'though  the  lessee  assign  over."  This  doctrine  was 
repeatedly  recognized  in  the  King's  Bench ; l  it  was  adopted 
in  the  Exchequer  in  1664 ;  2  and  was  finally  admitted  by  the 
Common  Bench  in  Johnson  v.  May3  (1683),  where  "be- 
cause this  had  been  vexata  qucestio  the  court  took  time  to 
deliver  their  opinion,  .  .  .  and  all  four  justices  agreed  that 
the  action  lay,  for  an  express  promise  shall  be  intended,  and 
not  a  bare  promise  in  law  arising  upon  the  contract,  which 
all  agree  will  not  lie." 

In  the  cases  thus  far  considered  the  assumpsit  was  for  the 
payment  of  a  sum  certain.  Assumpsit  was  also  admissible 
where  the  amount  to  be  recovered  was  uncertain ;  namely, 
where  the  defendant  promised  to  pay  a  reasonable  compensa- 
tion for  the  use  and  occupation  of  land.4  Indeed,  in  such  a 


hotter  v.  Fletcher  (1633),  1  Roll.  Ab.  8,  pi.  7;  Rowncevall  v.  Lane 
(1633),  1  Roll.  Ab.  8,  pi.  8;  Luther  v.  Malyn  (1638),  1  Roll.  Ab.  9, 
pi.  11;  Note  (1653),  Sty.  400;  Lance  v.  Blackman  (1655),  Sty.  463; 
How  v.  Norton  (1666),  1  Sid.  279;  2  Keb.  8,  1  Lev.  279,  s.  c.;  Chapman 
v.  Southwick  (1667),  1  Lev.  204,  1  Sid.  323,  2  Keb.  182,  s.  c.;  Freeman 
v.  Bowman  (1667),  2  Keb.  291;  Stroud  v.  Hopkins  (1674),  3  Keb.  357. 
See  also  Falhers  v.  Corbret  (1733),  2  Barnard.  386,  but  note  the  error 
of  the  reporter  in  calling  the  case  an  Indebitatus  Assumpsit. 

2  Trever  v.  Roberts,  Hard.  366. 

8  3  Lev.  150. 

4  [King  v.  Stephens,  2  Roll.  R.  435.] 


302  VI.     CONTRACTS 

case  Assumpsit  was  the  sole  remedy,  since  Debt  would  not 
lie  for  a  quantum  meruit.1 

Such  was  the  state  of  the  law  when  the  Statute  11  Geo. 
II.  c.  19,  §  14,  was  passed,  which  reads  as  follows:  "  To  ob- 
viate some  difficulties  that  may  at  times  occur  in  the  recovery 
of  rents,  where  demises  are  not  by  deed,  it  shall  and  may  be 
lawful  to  and  for  the  landlord,  where  the  agreement  is  not 
by  deed,  to  recover  a  reasonable  satisfaction  for  the  lands, 
tenements,  and  hereditaments  held  or  occupied  by  the  defend- 
ant in  an  action  on  the  case  for  the  use  and  occupation  of 
what  was  so  held  and  enjoyed;  and  if,  in  evidence  on  the 
trial  of  such  action,  any  parol  demise  or  agreement,  not  be- 
ing by  deed,  whereon  a  certain  rent  was  reserved,  shall  ap- 
pear, the  plaintiff  shall  not  therefore  be  nonsuited,  but  may 
make  use  thereof  as  an  evidence  of  the  quantum  of  damages 
to  be  recovered." 

The  "  difficulties  "  here  referred  to  would  seem  to  be  two. 
If,  before  this  statute,  the  plaintiff  counted  upon  a  quantum 
meruit,  and  the  evidence  disclosed  a  demise  for  a  sum  certain, 
he  would  be  nonsuited  for  a  variance.  Secondly,  if  he  de- 
clared for  a  sum  certain,  he  must,  as  we  have  seen,  prove  an 
express  promise  at  the  time  of  the  demise.  The  statute  ac- 
complished its  purpose  in  both  respects.  But  it  is  in  the 
removal  of  the  second  of  the  difficulties  mentioned  that  we 
find  its  chief  significance.  Thereby  Indebitatus  Assumpsit 
became  concurrent  with  Debt  upon  all  parol  demises.  In 
other  words,  the  statute  gave  to  the  landlord,  in  1738,  what 
Slade's  case  gave  to  the  seller  of  goods,  the  lender  of  money, 
or  the  employee,  in  1602;  namely,  the  right  to  sue  in  As- 
sumpsit as  well  as  in  Debt,  without  proof  of  an  independent 
express  promise. 

The  other  counts  in  Indebitatus  Assumpsit  being  the  crea- 
tion of  the  courts,  the  judges  found  no  great  difficulty  in 
gradually  enlarging  their  scope,  so  as  to  include  quasi-con- 

1  Mason  v.  Welland  (1685),  Skin.  238,  242,  3  Mod.  73,  s.  c.;  How  v. 
Norton  (1666),  1  Lev.  179,  2  Keb.  8,  1  Sid.  279,  s.  c.  It  is  probable 
that  a  promise  implied  in  fact  was  sufficient  to  support  an  assumpsit 
upon  a  quantum  meruit.  "  It  was  allowed  that  an  assumpsit  lies  for  the 
value  of  shops  hired  without  an  express  promise,"  per  Holt,  C.  J. 
(1701),  1  Com.  Dig.,  assumpsit,  C,  pi.  6. 


59.     AMES:  HISTORY  OF  AS  SUMP  SIT       303 

tracts,  where  the  promise  declared  upon  was  a  pure  fiction. 
Thus,  one  who  took  another's  money,  by  fraud  or  trespass, 
was  liable  upon  a  count  for  money  had  and  received ; 1  one 
who  wrongfully  compelled  the  plaintiff's  servant  to  labor  for 
him,  was  chargeable  in  Assumpsit  for  work  and  labor ; 2 
and  one  who  converted  the  plaintiff's  goods,  must  pay  their 
value  in  an  action  for  goods  sold  and  delivered.3 

But  Indebitatus  Assumpsit  for  rent  being  of  statutory 
origin,  the  courts  could  not,  without  too  palpable  a  usurpa- 
tion, extend  the  count  to  cases  not  within  the  act  of  Parlia- 
ment. The  statute  was  plainly  confined  to  cases  where,  by 
mutual  agreement,  the  occupier  of  land  was  to  pay  either 
a  defined  or  a  reasonable  compensation  to  the  owner.  Hence 
the  impossibility  of  charging  a  trespasser  in  Assumpsit  for 
use  and  occupation. 

1  Supra,  67;  Thomas  v.  Whip,  Bull.   N.  P.  130;  Tryon  v.  Baker,  7 
Lans.  511,  514. 

2  Supra,  68;  Stockell  v.  Watkins,  2  Gill  &  J.  326. 

8  The  writer  is  indebted  to  Professor  Keener  for  a  correction  of  the 
statement  (supra,  p.  297)  that  the  count  for  goods  sold  and  delivered 
was  never  allowed  against  a  converter.  See  2  Keener,  Cases  on  Quasi- 
Contracts,  606,  607,  n.  1;  Cooley,  Torts  (2  ed.),  109,  110;  Pomeroy, 
Remedies  (2  ed.),  §§568,  569. 


60.     THE  HISTORY  OF  PAROL  CONTRACTS  PRIOR 
TO    ASSUMPSIT1 

BY  JAMES  BARR  Anss2 

IT  is  generally  agreed  by  the  Continental  writers  that  in 
early  German  law,  from  which  our  law  comes,  only  real 
and  formal  contracts  were  binding.  The  same  is  unquestion- 
ably true  of  the  English  common  law  from  the  time  of  Ed- 
ward III.  to  the  introduction  of  Assumpsit  towards  the  end 
of  the  fifteenth  century.  But  Mr.  Justice  Holmes  in  his 
Common  Law,  260-264,  and  again  in  his  essay  on  Early 
English  Equity,  1  L.  Q.  Rev.  171-173, 3  endeavors  to  show 
that  the  rule  requiring  a  quid  pro  quo  for  the  validity  of  a 
parol  undertaking  was  not  of  universal  application  in  Eng- 
land, and  that  a  surety,  in  particular,  might  bind  himself 
without  a  specialty  prior  to  the  reign  of  Edward  III.  If 
this  opinion  is  well-founded,  an  innovation  and  the  abolition 
of  the  innovation  must  be  accounted  for.  The  evidence  in 
favor  of  the  validity  during  the  two  centuries  following  the 
Norman  Conquest,  of  any  parol  obligation  which  was  neither 
based  upon  a  quid  pro  quo,  nor  assumed  in  a  court  of  record, 
should,  therefore,  be  very  strong  to  carry  conviction.  The 
evidence  thus  far  adduced  has  failed  to  convince  the  present 
writer. 

Prior  to  the  appearance  of  Assumpsit  the  contractual 
remedies  in  English  law  were  Debt,  Detinue,  Account,  and 
Covenant.  Detinue  and  Account,  every  one  will  agree,  were 

1This  Essay  was  first  published  in  the  Harvard  Law  Review,  vol. 
VIII  (1895),  pp.  252-264.  Additions  made  by  the  author  in  revising 
for  this  Collection  are  in  brackets. 

2  A  biographical  note  of  this  author  is  prefixed  to  Essay  No.  43,  in 
Volume  II  of  this  Collection. 

3  [Reprinted  as  Essay  No.  41,  in  Volume  II  of  this   Collection. — 
EDS.] 


60.     AMES:    PAROL    CONTRACTS  305 

based  upon  real  contracts.  Covenant  lay  only  upon  sealed 
instruments,  that  is,  formal  contracts.  If,  therefore,  parol 
undertakings,  other  than  real  contracts,  were  ever  recognized 
in  early  English  law  they  must  have  been  enforced  by  the 
action  of  Debt.  But  no  instance  of  such  an  action  in  the 
royal  courts,  it  is  believed,  can  be  found. 

Glanvil,  Bracton,  and  Britton  all  recognize  the  validity  of 
debts  founded  upon  a  specialty.1  Glanvil  also  says  in  one 
place  that  no  proof  is  admissible  in  the  king's  court,  if  the 
plaintiff  relies  solely  upon  fidei  laesio;  and  in  another  that 
the  king's  court  does  not  enforce  "  privatas  conventiones  de 
rebus  dandis  vel  accipiendis  in  vadium  vel  alias  hujusmodi," 
unless  made  in  that  court,  that  is  to  say,  unless  they  were 
contracts  of  record.2  Bracton  makes  the  statement  that  the 
king's  court  does  not  concern  itself  except  occasionally  de 
gratia  with  "  stipulationes  conventionales,"  which  may  be 
infinite  in  their  variety.3  The  language  of  Fleta  is  most 
explicit  against  the  validity  of  formless  parol  promises. 
"  Oportet  igitur  ex  hoc  quod  aliquis  ex  promissione  teneatur 
ad  solutionem,  quod  scriptura  modum  continens  obligationis 
interveniat,  nisi  promissio  ilia  in  loco  recordum  habenti  re- 
cognoscatur.  Et  non  solum  sufficiet  scriptura,  nisi  sigilli 
munimine  stipulantis  roboretur  cum  testimonio  fide  digno- 
rum."  The  same  principle  was  expressed  a  few  years  later 
in  a  case  in  Y.  B.  3  Ed.  II.  78.  The  plaintiff  counted  in 
Debt  on  a  grant  for  £200,  showing  a  specialty  as  to  £140, 

1  Glanvil,  Lib.  X.  c.  12.     "  De  debitis  laicorum  quae  debentur  .  .  .  de 
cartis  debita  continentibus."    Bracton,  f.  100,  b.     "  Per  scripturam  vero 
obligatur  quis,  ut  si  quis  scripserit  alicui  se  debere,  sive  pecunia  nume- 
rata    sit    sive    non,    obligatur    ex    scriptura,    nee    habebit    exceptionem 
pecuniae  non  numerate  contra  scripturam,  quia  scripsit  se  debere."     1 
Nich.  Britton,  157,  162. 

2  Glanvil,  Lib.  X.  c.  12,  and  c.  18. 

3  Bracton,  f.  100,  a.     As  there  are  several  cases  in  Bracton's  Note 
Book,  in  which  the  validity  of  covenants  affecting  land  are  assumed^  to 
be  valid,  Bracton,  in  the  passage  just  referred  to,  probably  had  in  mind 
miscellaneous  covenants.  See  Pollock,  Contracts  (6  ed.),  136.     It  is  cer- 
tainly true  that  the  rule  that  any  promise  under  seal  may  give  rise  to 
an  action  was  a  comparatively  late  development  in  the  history  of  cove- 
nant.    As  late  as  the  middle  of  the  fourteenth  century,   Sharshull,  J., 
said  in  Y.  B.  21  Ed.  III.  7-20:  "  If  he  granted  to  you  to  be  with  you  at 
your  love-day,  and  afterwards  would  not  come,  perhaps  you  might  have 
had  a  writ  of  covenant  against  him  if  you  had  a  specialty  to  prove 
your  claim." 


306  VI.     CONTRACTS 

and  offering  suit  as  to  the  rest.  Frisk,  for  defendant,  said: 
"  Every  grant  and  every  demand  by  reason  of  grant  must 
be  by  specialty,  but  of  other  contracts,1  as  of  bailment  or 
loan,  one  may  demand  by  suit.  Therefore  as  you  demand 
this  debt  by  reason  of  grant  and  show  no  specialty  but  of 
part,  judgment,"  etc.  The  plaintiff  was  nonsuited.  In  Y. 
B.  2  Ed.  Ill  4-5,  Aldeburgh  (Judge  of  C.  B.  four  years 
later)  said:  "If  one  binds  oneself  to  another  in  a  debt  in 
presence  of  people  fi  sans  cause  et  sans  especialtie,'  never 
shall  an  action  arise  from  this."  The  same  doctrine  is  re- 
peated in  later  cases  in  the  fourteenth  century.  2  In  the  light 
of  these  authorities  it  seems  highly  improbable  that  Debt 
was  ever  maintainable  in  the  king's  court,  unless  the  plaintiff 
could  show  either  a  specialty  or  a  quid  pro  quo  received  by 
the  defendant. 3 

irThe  word  contract  was  used  in  the  time  of  the  Year  Books  in  a 
much  narrower  sense  than  that  of  to-day.  It  was  applied  only  to  those 
transactions  where  the  duty  arose  from  the  receipt  of  a  quid  pro  quo, 
e.  g.,  a  sale  or  loan.  In  other  words,  contract  meant  what  we  now  mean 
by  "real  contract."  What  we  now  call  the  formal  or  specialty  contract 
was  anciently  described  as  a  grant,  an  obligation,  a  covenant,  but  not 
as  a  contract.  See,  in  addition  to  the  authorities  cited  in  the  text,  Y.  B. 
17  Ed.  III.  48-14.  A  count  in  debt  demanding  "  part  by  obligation  and 
part  by  contract."  Y.  B.  29  Ed.  III.  25,  26,  "  Now  you  have  founded 
wholly  upon  the  grant,  which  cannot  be  maintained  without  a  specialty, 
for  it  lies  wholly  in  parol,  and  there  is  no  mention  of  a  preceding  con- 
tract." Y.  B.  41  Ed.  III.  7-15.  Thorp,  C.  J.:  "You  say  truly  if  he  put 
forward  an  obligation  of  the  debt,  but  if  you  count  upon  a  contract 
without  obligation,  as  here  (a  loan),  it  is  a  good  plea."  Y.  B.  43  Ed. 
III.  2-5.  Debt  on  a  judgment.  Belknap  objected  "for  there  is  no  con- 
tract or  covenant  between  them."  8  Rich.  II.  Bellewe  (ed.  1869),  32, 
111.  "In  debt  upon  contract  the  plaintiff  shall  shew  in  his  count  for 
what  cause  the  defendant  became  his  debtor.  Otherwise  in  debt  upon 
obligation."  Y.  B.  11  Hen.  IV.  73,  a-11;  8  Rich.  II.  Bellewe  (ed. 
1869),  32,  111;  Y.  B.  39  Hen.  BI.  34-44;  Sharington  v.  Strotton,  Plowd. 
298,  301,  302;  Co.  Lit.  292  6.  The  fanciful  etymology  given  in  Co.  Lit. 
47  6  should  be  added :  "  In  every  contract  there  must  be  quid  pro  quo, 
for  contractus  est  quasi  actus  contra  actum." 

2Y.  B.  11  &  12  Ed.  III.  587;  Y.  B.  18  Ed.  III.  13-7;  Y.  B.  44  Ed. 
III.  21,  23;  [Y.  B.  48  Ed.  III.  29-15]  Y.  B.  9  Hen.  V.  14,  23.  The  only 
statement  in  the  Year  Books  to  the  contrary  is  the  dictum  of  Candish, 
J.,  in  48  Ed.  III.  6-11:  "And  also  this  action  of  covenant  of  necessity 
is  maintainable  because  for  so  slight  a  thing  one  cannot  always  have  his 
clerk  to  make  a  specialty."  The  case  in  Y.  B.  7  Ed.  II.  242  can  hardly 
be  said  to  throw  any  light  upon  the  question  under  discussion. 

3  By  the  custom  of  London  and  Bristol,  Debt  was  allowed  upon  a 
parol  grant  without  quid  pro  quo.  Y.  B.  43  Ed.  III.  11-1;  Y.  B.  14 
Hen.  IV.  26-13;  Y.  B.  22  Ed.  IV.  2-6;  F.  M.  v.  R.  C.,  1  M.  &  G.  6  n. 
<a.);  Y.  B.  38  Hen.  VI.  29-12;  Y.  B.  1  Hen.  VII.  22-12;  [Y.  B.  1  Ed. 
IV  6-13;  Dy.  370,  pi.  58]  Williams  v.  Gibbs,  5  A.  &  E.  208;  Bruce  v. 


60.     AMES:    PAROL    CONTRACTS  307 

In  the  essay  upon  Early  English  Equity,  already  re- 
ferred to,  the  distinguished  writer  makes  the  further  sugges- 
tion that,  although  the  formless  parol  undertakings  ulti- 
mately failed  of  recognition  in  the  King's  Courts,  the  Church 
for  a  long  time,  with  varying  success,  claimed  a  general  ju- 
risdiction in  cases  of  Icesio  fidei;  and  that  after  the  Church 
was  finally  cut  down  to  marriages  and  wills,  the  clerical 
Chancellors  asserted  for  a  time  in  Chancery  the  power  of 
enforcing  parol  agreements,  for  which  the  ordinary  King's 
courts  afforded  no  remedy.  It  is  believed  that  undue  im- 
portance has  been  attached  to  the  proceedings  in  the  spirit- 
ual court  for  Icesio  fidei.  It  is  doubtless  true  that  this  court 
was  eager  to  enlarge  its  jurisdiction,  and  to  deal  with  cases 
of  breach  of  faith  not  properly  within  its  cognizance.  We 
may  also  concede  that  the  court  was  sometimes  successful  in 
keeping  control  of  such  cases  when  the  defendant  did  not 
dispute  the  jurisdiction.  But  the  authorities  would  seem  to 
make  it  clear  that  from  the  time  of  the  Constitutions  of  Clar- 
endon, a  prohibition  would  issue  as  a  matter  of  course  from 
the  King's  Court  upon  the  application  of  one  who  was  drawn 
into  the  spiritual  court  upon  breach  of  faith  in  a  purely 
temporal  matter.1 

Nor  has  the  present  writer  been  able  to  discover  any  trace- 
able connection  between  the  ecclesiastical  claim  of  jurisdic- 
tion over  Icesio  fidei  and  the  jurisdiction  of  the  Chancellor  in 
the  matter  of  parol  agreements.  If  the  Chancellor  proceeded 
in  the  same  spirit  as  the  ecclesiastical  judge,  purely  upon  the 
ground  of  breach  of  faith,  it  would  follow  that  in  the  absence 
of  a  remedy  at  common  law,  equity  would  give  relief  upon 
any  and  all  agreements,  even  upon  gratuitous  parol  promises. 
And  Mr.  Justice  Holmes  seems  to  have  so  interpreted  the 


Waite,  1  M.  &  G.  1,  and  cases  cited  in  Pollock,  Cont.  (6  ed.),  138  n. 
(p.).  See  also  the  cases  of  parol  undertakings  in  the  Bishop  of  Ely's 
Court,  4  Seld.  Socy.  114-118. 

Constitutions  of  Clarendon,  c.  15,  Stubbs,  Sel.  Chart.  134;  Glanvil, 
Book  X.  c.  12;  Abb.  PI.  31,  col.  1,  rot.  21  (1200);  2  Br.  N.  B.  No.  50 
(1219);  Fitz.  Abr.  Prohib.  15  (1220);  2  Br.  N.  B.  No.  1893  (1227); 
Stat.  Circumspecte  Agatis,  13  Ed.  I.;  Y.  B.  22  Lib.  Ass.  70;  Y.  B.  2 
Hen.  IV.  10-45;  Y.  B.  11  Hen.  IV.  88-40;  Y.  B.  38  Hen.  VI.  29-11; 
Y.  B.  20  Ed.  IV.  10-9;  Y.  B.  22  Ed.  IV.  20-47;  Y.  B.  12  Hen.  VII.  22. 
b-2;  Dr.  &  St.  Dial.  II.  c.  24. 


308  VI.     CONTRACTS 

following  statement,  which  he  cites  from  the  Diversity  of 
Courts  (Chancery)  :  "  A  man  shall  have  remedy  in  Chancery 
for  covenants  made  without  specialty,  if  the  party  have  suf- 
ficient witness  to  prove  the  covenants,  and  yet  he  is  without 
remedy  at  the  common  law ;  "  for  he  adds  that  the  contrary 
was  soon  afterwards  decided,  citing  Gary,  7 :  "  Upon  nudum 
pactum  there  ought  to  be  no  more  help  in  Chancery  than 
there  is  at  the  common  law."  l  But,  without  all  deference, 
the  passage  in  the  Diversity  of  Courts  seems  to  have  been 
misapprehended.  There  is  really  no  contrariety  between  that 
passage  and  the  extract  from  Gary.  It  is  not  asserted  in 
the  Diversity  of  Courts  that  one  should  have  remedy  for  all 
parol  covenants,  where  there  was  no  remedy  at  common  law. 
Full  effect  is  given  to  the  language  used  if  it  is  taken  to 
import  that  relief  was  given  upon  some  parol  covenants.  So 
interpreted  the  Diversity  of  Courts  accords  with  other  au- 
thorities. For  while  it  is  confidently  submitted  that  no  in- 
stance can  be  found  prior  to  the  time  of  Lord  Eldon2  in 
which  Equity  gave  relief  upon  a  gratuitous  parol  promise, 
it  is  certainly  true  that  Chancery  did  in  some  cases  furnish 
a  remedy  upon  parol  covenants.  (But  in  all  these  Chancery 
cases  it  will  be  found  that  the  promisee,  acting  in  reliance 
upon  the  promise,  had  incurred  expense,  or  otherwise  parted 
with  property,  and  that  the  Chancellor,  upon  an  obvious 
principle  of  natural  justice,  compelled  the  promisor  to  make 
reparation  for  the  loss  caused  by  his  breach  of  promise. 
Three  such  instances,  between  1377  and  1468,  are  mentioned 
in  an  essay  upon  "  The  History  of  Assumpsit,"  in  an  earlier 

1  [In  Anon.  Litt.  R.,  3  Richardson  said  that  Lord  Ellesmere  used  to 
say  that  there  were  three  things  which  he  would  never  relieve  in  equity, 
1    such   leases   aforesaid,   2   concealments,  3  nude   promises.     See    also 
Alexander  v.  Crosh,  Toth.  21.] 

2  At  the  present  day  a  gratuitous  undertaking  by  the  owner  of  prop- 
erty to  hold  the  same  in  trust  for  another  is  enforced  in  equity.     It  is  a 
singular  fact  that  this  anomalous  doctrine  seems  to  have  been  'first  sanc- 
tioned by  the  conservative  Lord  Eldon,  in  Ex  parte  Pye,  18  Ves.  140. 

't  was  well  settled  that  a  use  could  not  be  created  by  a  similar  gratui- 
tous parol  declaration.  Indeed,  as  late  as  1855,  Lord  Cranworth,  in 
Scales  v.  Maude,  6  D.  M.  &  G.  43,  51,  said  that  a  mere  declaration  of 
trust  by  the  owner  of  property  in  favor  of  a  volunteer  was  inoperative. 
In  Jones  v.  Lock,  1  Ch.  Ap.  25,  28,  he  corrected  this  statement,  yielding 
to  the  authority  of  what  seemed  to  him  unfortunate  decisions. 

3  Essay  No.  59,  Volume  III. 


60.     AMES:    PAROL    CONTRACTS  309 

part  of  this  Collection.  Those  instances  might  have  been 
supplemented  by  three  similar  cases  which  were  brought  to 
light  by  Mr.  S.  R.  Bird.1  In  Gardyner  v.  Keche  (1452- 
1454),  Margaret  and  Alice  Gardyner  promised  to  pay  the 
defendant  £22,  who  on  his  part  was  to  take  Alice  to  wife. 
The  defendant,  after  receiving  the  £22,  "  meaning  but  craft 
and  disceyt,"  married  another  woman,  "  to  the  great  disceyt 
of  the  said  suppliants,  and  ageyne  all  good  reason  and  con- 
science." The  defendant  was  compelled  to  answer  the  bill. 
In  Leinster  v.  Narborough  (circa  1480),  the  defendant  being 
betrothed  to  the  plaintiff's  daughter-in-law,  but  desiring  to 
go  to  Padua  to  study  law,  requested  the  plaintiff  to  maintain 
his  -fiancee,  and  a  maid-servant  to  attend  upon  her  during  his 
absence,  and  promised  to  repay  upon  his  return  all  costs  and 
charges  incurred  by  the  plaintiff  in  that  behalf.  The  defend- 
ant returning  after  ten  years  declined  to  fulfil  his  promise, 
and  the  plaintiff  filed  his  bill  for  reimbursement,  and  was 
successful.2  In  James  v.  Morgan  (1504-1515),  the  defend- 
ant promised  the  plaintiff  100  marks  if  he  would  marry  his 
daughter  Elizabeth.  The  plaintiff  accordingly  "  resorted  to 
the  said  Elizabeth  to  his  great  costs  and  charges,"  and 
"  thorow  the  desavebull  comforde  "  of  the  defendant  and  his 
daughter  delivered  to  the  latter  jewels,  ribbons,  and  many 
other  small  tokens.  Elizabeth  having  married  another  man 
through  the  "  crafty  and  false  meane  "  of  the  defendant,  the 
plaintiff  by  his  bill  sought  to  recover  the  value  of  his  tokens, 
and  also  the  "  gret  costs  and  charges  thorow  his  manyfold 
journeys." 

In  all  these  cases  there  was,  it  is  true,  a  breach  of  promise. 
But  there  seems  to  be  no  reason  to  suppose  that  the  Chancel- 
lors, in  giving  relief,  were  influenced,  even  unconsciously,  by 
any  recollection  of  ecclesiastical  traditions  in  regard  to 
Iceslo  fidei.  It  was  so  obviously  just  that  one  who  had  inten- 
tionally misled  another  to  his  detriment  should  make  good  the 
loss,  that  we  need  not  go  further  afield  for  an  explanation 
of  the  Chancellor's  readiness  to  give  a  remedy  upon  such 


1  The  Antiquary,  Vol.  IV.  p.  185,  reprinted  in  part  in  3  Green  Bag,  3. 
*The  Antiquary,  Vol.  V.  p.  38. 


310  VI.     CONTRACTS 

parol  agreements.  In  A  little  Treatise  concerning  Writs  of 
Subpoena,1  written  shortly  after  1523,  —  that  is,  at  about 
the  same  time  as  the  Diversity  of  Courts,  —  occurs  the  fol- 
lowing instructive  passage :  — 

"  There  is  a  maxim  in  the  law  that  a  rent,  a  common,  annuity, 
and  such  other  things  as  lie  not  in  manual  occupation,  may  not 
have  commencement,  nor  be  granted  to  none  other  without  wri- 
ting. And  thereupon  it  followeth,  that  if  a  man  for  a  certain 
sum  of  money  sell  another  forty  pounds  of  rent  yearly,  to  be 
percepted  of  his  lands  in  D,  &c.,  and  the  buyer,  thinking  that 
the  bargain  is  sufficient,  asketh  none  other,  and  after  he  de- 
mandeth  the  rent,  and  it  is  denied  him,  in  this  case  he  hath 
no  remedy  at  the  common  law  for  lack  of  a  deed;  and  therefore 
inasmuch  as  he  that  sold  the  rent  hath  quid  pro  quo,  the  buyer 
shall  be  helped  by  a  subpoena.  But  if  that  grant  had  been  made 
by  his  mere  motion,  without  any  recompense,  then  he  to  whom 
the  rent  was  granted  should  neither  have  had  remedy  by  the 
common  law  nor  by  subpoena.  But  if  he  that  made  the  sale  of 
the  rent  had  gone  farther,  and  said  that  he,  before  a  certain  day, 
would  make  a  sufficient  grant  of  the  rent,  and  after  refused  to  do 
it,  there  an  action  upon  the  case  should  lie  against  him  at  the 
common  law;  but  if  he  made  no  such  promise  at  the  making  of 
the  contract,  then  he  that  bought  the  rent  hath  no  remedy  but 
by  subpoena,  as  it  is  said  before/' 

Here  the  subpcena  is  allowed  in  the  absence  of  a  promise. 
There  could,  therefore,  be  no  question  of  breach  of  faith. 
But  the  money  having  been  paid  and  received  under  the  ex- 
pectation of  both  parties  that  the  plaintiff  would  get  a  valid 
transfer  of  the  rent,  it  was  plainly  just  that  equity  should 
not  permit  the  defendant  to  rely  on  the  absence  of  a  remedy 
at  common  law  as  a  means  of  enriching  himself  at  the  ex- 
pense of  the  plaintiff. 

It  is  hardly  necessary  to  remind  the  learned  reader  of  the 
analogy  between  the  case  just  considered,  and  uses  arising 
upon  a  bargain  and  sale,  which  were  supported  for  the  first 
time  only  a  few  years  before.2  It  was  doubtless  the  same 
principle  of  preventing  unjust  enrichment  which  led  the 
Chancellor  in  the  reign  of  Henry  V.  to  give  a  legal  sanction 

lDoct.  &  St.  (18th  ed.),  Appendix,  17;    Harg.  L.  Tr.  334. 
*Y.  B.  21  Hen.  VII.  18-30 


60.     AMES:    PAROL    CONTRACTS  311 

to  the  duty  of  the  feoffee  to  uses  which  before  that  time  had 
been  a  purely  honorary  obligation. 

To  sum  up,  then,  the  Ecclesiastical  Court  had  no  jurisdic- 
tion over  agreements  relating  to  temporal  matters.  Chancery 
gave  relief  upon  parol  agreements  only  upon  the  ground  of 
compelling  reparation  for  what  was  regarded  as  a  tort  tc* 
the  plaintiff,  or  upon  the  principle  of  preventing  the  unjust 
enrichment  of  the  defendant ;  and  the  common  law,  prior 
to  Assumpsit,  recognized  only  those  parol  contracts  which 
were  based  upon  a  quid  pro  quo. 

The  jurisdiction  of  Equity  was  rarely  invoked  upon 
breaches  of  promises  after  the  development  of  Assumpsit, 
unless  specific  performance  of  the  contract  was  desired.  We 
have  only  to  consider,  therefore,  the  nature  of  the  common- 
law  real  contracts  which  were  enforced  by  the  actions  of 
Debt,  Detinue,  and  Account. 

It  is  not  necessary  to  deal  specially  with  Account,  since  the 
essential  principles  of  that  action  have  been  clearly  and  fully 
set  forth  by  Professor  Langdell  in  the  Harvard  Law 
Review.1  It  will  suffice  to  emphasize  the  fact  that  a  de- 
fendant'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,  to  find  that  upon 
the  delivery  of  money  by  A  to  B  to  the  use  of  C,  or  to  be 
delivered  to  C,  C  might  maintain  an  action  of  Account 
against  B.2  Account  against  a  receiver  was  long  ago  super- 
seded by  the  common  count  for  money  had  and  received  by 
the  defendant  to  the  use  of  the  plaintiff.  But  the  words 
"  to  the  use  of  "  still  bear  witness  to  the  trust  relation. 
1  Detinue  was  usually  founded  upon  the  contract  of  bail- 

JVol.  II,  pp.  242-257.  See  also  Pollock,  Cont.  (6th  ed.),  137,  and 
the  observations  of  the  same  writer  in  6  Harv.  Law  Rev.,  401,  402. 

2  (32  Ed.  III.)  Fitz.  Ab.  Acct.  108;  (2  Rich.  II.)  Bellewe  Acct.  7; 
Y.  B.  41  Ed.  III.  10-5;  Y.  B.  6  Hen.  IV.  7-33;  Y.  B.  1  Hen.  V.  11-21; 
Y.  B.  36  Hen.  VI.  9,  10-5;  Y.  B.  18  Ed.  IV.  23-5;  Y.  B.  1  Ed.  V.  2-2; 
Robsert  v.  Andrews,  Cro.  El.  82;  Huntley  v.  Griffith,  Gold.  159;  Har- 
rington v.  Rotheram,  Hob.  36,  Brownl.  26  s.  c. ;  Clark's  Case,  Godb.  210, 
pi.  299.  See  also  Ames,  Cases  on  Trust  (2d  ed.),  1  n.  3,  4  n.  1. 


312  VI.     CONTRACTS 

ment.  This  contract  was  a  real  contract  by  reason  of  the 
delivery  of  a  chattel  by  the  bailor  to  the  bailee.  The  duty 
of  the  bailee  was  commonly  to  redeliver  the  same  chattel  to 
the  bailor,  either  upon  demand  or  at  some  time  fixed  by  the 
terms  of  the  bailment.  But  the  chattel  might  be  delivered 
to  the  bailee  to  be  delivered  to  a  third  person,  in  which  case 
the  third  person  was  allowed  to  maintain  Detinue  against 
the  bailee.1 

Detinue  would  also  lie  against  a  seller  upon  a  bargain  and 
sale.  Here  it  was  the  payment  of  the  purchase-money  that 
as  a  rule  constituted  the  quid  pro  quo  for  the  seller's  duty 
to  suffer  the  buyer  to  take  possession  of  the  chattel  sold.  If 
the  bargain  was  for  the  reciprocal  exchange  of  chattels,  the 
delivery  of  the  chattel  by  the  one  party  would  be  as  effective 
a  quid  pro  quo  as  payment  of  purchase-money  to  support 
an  action  of  Detinue  against  the  other  party.  It  was  hardly 
an  extension  of  principle  to  treat  the  delivery  of  the  buyer's 
sealed  obligation  for  the  amount  of  the  purchase-money  as 
equivalent  to  actual  payment  of  money,  or  delivery  of  a  chat- 
tel, and  accordingly  we  find  in  Y.  B.  21  Edward  III.  12-2, 
the  following  statement  by  Thorpe  (Chief  Justice  of  the 
Common  Bench  in  30  Edward  III.)  :  "  If  I  make  you  an  ob- 
ligation for  £40  for  certain  merchandise  bought  of  you,  and 
you  will  not  deliver  the  merchandise,  I  cannot  justify  the 
detainer  of  the  money;  but  you  shall  recover  by  a  writ  of 
Debt  against  me,  and  I  shall  be  put  to  my  action  against  you 
for  the  thing  bought  by  a  writ  of  Detinue  of  chattels."  But 
it  was  a  radical  departure  from  established  traditions  to 
permit  a  buyer  to  sue  in  Detinue  when  there  was  merely  a 
parol  bargain  of  sale  without  the  delivery  of  a  physical  res 
of  any  sort  to  the  seller.  But  this  striking  change  had  been 
accomplished  by  the  time  of  Henry  VI.  The  new  doctrine 
may  be  even  older,2  but  there  seems  to  be  no  earlier  expression 
of  it  in  the  books  than  the  following  statement  by  Fortescue, 

1  Y.  B.  34  Ed.  I.  239;  Y.  B.  12  &  13  Ed.  III.  244;  Y.  B.  39  Ed.  III. 
17,  A;  Y.  B.  3  Hen.  VI.  43-20;  Y.  B.  9  Hen.  VI.  38-13;  Y.  B.  9  Hen. 
VI.  60,  A-8;  Y.  B.  18  Hen.  VI.  9,  A-7,  and  other  authorities  cited  in 
Ames,  Cases  on  Trusts  (2d  ed.),  52  n.  1. 

[See  Y.  B.  44  Ed.  Ill  27-6,  called  to  the  writer's  attention  by  Mr. 
Crawford  D.  Hening.] 


60.     AMES:    PAROL    CONTRACTS  313 

C.  J. :  "  If  I  buy  a  horse  of  you,  the  property  is  straightway 
in  me,  and  for  this  you  shall  have  a  writ  of  Debt  for  the 
money,  and  I  shall  have  Detinue  for  the  horse  on  this  bar- 
gain." l  From  the  mutuality  of  the  obligations  growing 
out  of  the  parol  bargain  without  more,  one  might  be  tempted 
to  believe  that  the  English  law  had  developed  the  consensual 
contract  more  than  a  century  before  the  earliest  reported 
case  of  Assumpsit  upon  mutual  promises.2  But  this  would 
be  a  misconception.  The  right  of  the  buyer  to  maintain 
Detinue,  and  the  corresponding  right  of  the  seller  to  sue 
in  Debt  were  not  conceived  of  by  the  medieval  lawyers  as 
arising  from  mutual  promises,  but  as  resulting  from  recip- 
rocal grants,  —  each  party's  grant  of  a  right  forming  the 
quid  pro  quo  for  the  corresponding  duty  of  the  other.3 

It  remains  to  consider  the  most  prominent  of  all  the  Eng- 
lish real  contracts,  the  simple  contract  debt.  The  writ  in 
Debt,  like  writs  for  the  recovery  of  land,  was  a  praecipe  quod 
reddat.  The  judgment  for  the  plaintiff  is  that  he  recover 
his  debt.  In  other  words,  as  in  the  case  of  real  actions,  the 
defendant  was  conceived  of  as  having  in  his  possession  some- 
thing belonging  to  the  plaintiff  which  he  might  not  right- 
fully keep,  but  ought  to  surrender.  This  doubtless  explains 
why  the  duty  of  a  debtor  was  always  for  the  payment  of  a 


*Y.  B.  20  Hen.  VI.  35-4;  Y.  B.  21  Hen.  VI.  55-12.  See,  to  the  same 
effect,  Y.  B.  37  Hen.  VI.  8-18,  per  Prisot,  C.  J.;  Y.  B.  49  Hen.  VI.  18- 
23,  per  Choke,  J.,  and  Brian;  Y.  B.  17  Ed.  IV.  1-2.  See  also  Black- 
burn, Contract  of  Sale,  190-196. 

2  Peck  v.  Redman  (1555),  Dy.  113,  appears  to  be  the  earliest  case  of 
mutual  promises. 

3  If  the  bargain  was  for  the  sale  of  land  and  there  was  no  livery  of 
seisin,  the  buyer  had  no  common-law  remedy  for  the  recovery  of  the 
land,  like  that  of  Detinue  for  chattels.    Equity,  however,  near  the  begin- 
ning of  the  sixteenth  century,  supplied  the  common-law  defect  by  com- 
pelling the  seller  to  hold  the  land  to  the  use  of  the  buyer,  if  the  latter 
had  either  paid  or  agreed  to  pay  the  purchase-money.    Br.  Ab.  Feoff,  al 
Use,  54;  Barker  v.  Keate,  1  Freem.  249,  2  Mod.  249  s.  c.;  [Nota,  Brownl. 
34.]  Gilbert,  Uses,  52;  2  Sand.  Uses,  57.    The  consideration  essential  to 
give  the  buyer  the  use  of  land  was,  therefore,  identical  with  the  quid 
pro  quo  which  enabled  him  to  maintain  Detinue  for  a  chattel.     Inas- 
much as  the  consideration  for  parol  uses  was  thus   clearly  borrowed 
from  the  common-law  doctrine  of  quid  pro  quo,  it  seems  in  the  highest 
degree  improbable  that  the  consideration  for  an  Assumpsit  was  bor- 
rowed by  the  Common  Law  from  Equity;  2  Harv.  L.  Rev.  18,  19  (Es- 
say No.  59,  ante).     But  see  Salmond,  Essays  in  Jurisprudence,  213 
(Essay  No.  61,  post). 


314  VI.     CONTRACTS 

definite  amount  of  money  or  a  fixed  quantity  of  chattels.1 
A  promise  to  pay  as  much  as  certain  goods  or  services  were 
worth  would  never  support  a  count  in  Debt.2  In  Y.  B.  12 
Edw.  IV.  9-22,  Brian,  C.  J.,  said:  "  If  I  bring  cloth  to  a 
tailor  to  have  a  cloak  made,  if  the  price  is  not  determined 
beforehand  that  I  shall  pay  for  the  making,  he  shall  not  have 
an  action  of  Debt  against  me."  3  For  the  same  reason,  the 
quantum  meruit  and  quantum  valebant  counts  seem  never  to 
have  gained  a  footing  among  the  common  counts  in  Debt, 
and  in  Assumpsit  the  quantum  meruit  and  quantum  valebant 
counts  were  distinguished  from  the  indebitatus  counts.  But 
principle  afterwards  yielded  so  far  to  convenience  that  it 
became  the  practice  to  declare  in  Indebitatus  Assumpsit 
when  no  price  had  been  fixed  by  the  parties,  the  verdict  of  the 
jury  being  treated  as  equivalent  to  a  determination  of  the 
parties  at  the  time  of  bargain. 

The  ancient  conception  of  a  creditor's  claim  in  Debt  as 
analogous  to  a  real  right  manifested  itself  in  the  rule  that 
a  plaintiff  must  prove  at  the  trial  the  precise  amount  to  be 
due  which  he  demanded  in  his  prcecipe  quod  reddat.  If  he 
demanded  a  debt  of  £20  and  proved  a  debt  of  £19,  he  failed 
as  effectually  as  if  he  had  declared  in  Detinue  for  the  recov- 
ery of  a  horse  and  could  prove  only  the  detention  of  a  cow.4 

1 A  debtor  might  as  easily  owe  chattels  as  money.  A  debt  of  chattels 
would  arise  from  the  same  quid  pro  quo  as  a  debt  of  money.  A  lessee 
might  accordingly  be  charged  in  debt  for  chattels  by  the  lessor.  Y.  B. 
20  and  21  Ed.  I.  139;  Y.  B.  50  Ed.  III.  16-8.  Y.  B.  34  Hen.  VI.  12-23; 
Anon.  3  Leon.  260;  Denny  v.  Parnell,  1  Roll.  Ab.  591,  pi.  1.  Or  an  em- 
ployer by  his  employee.  Y.  B.  7  Ed.  III.  12-2;  Weaver  v.  Best,  Winch. 
75.  Or  a  vendor  by  his  vendee.  Y.  B.  34  Ed.  I.  150;  Y.  B  27  Hen.  VII. 
8-20.  [A  case,  temp.  Ed.  I.  cited  5  C.  B.  326  n.  (a)].  As  Indebitatus 
Assumpsit  would  lie  for  a  debt  payable  in  money,  it  was  also  an  appro- 
priate remedy  for  a  debt  payable  in  chattels.  Cock  v.  Vivyan,  2  Barn- 
ard, 293,  384;  Falmouth  v.  Penrose,  6  B.  &  C.  385;  Mayor  v.  Clerk,  4 
B.  &  Al.  268.  The  judgment  in  Debt  for  Chattels  was  like  that  in  De- 
tinue that  the  plaintiff  recover  his  chattels.  The  essential  distinction 
between  Detinue  and  Debt  for  chattels  seems  to  be  this,  —  Detinue  was 
the  proper  remedy  for  the  recovery  of  a  specific  chattel,  Debt,  on  the 
other  hand,  for  the  recovery  of  a  specific  amount  of  unascertained 
chattels. 

2  Johnson  v.  Morgan,  Cro.  El.  758. 

3  See  to  the  same  effect  Y.  B.  3  Hen.  VI.  36-33;    Anon.,  2  Show.  183; 
Young   v.    Ashburnham,   3   Leon.    161;    Mason    v.    Welland,    Skin.    238, 
242. 

4  Y.  B.  3  Hen.  VI.  4-4;  Y.  B.  11  Hen.  VI.  5-9;  Y.  B.  21  Ed.  IV.  22-2; 
Smith  v.  Vow,  Moore,  298;   Bagnall  v.  Sacheverell,  Cro.  El.  292;   Blad- 


60.     AMES:    PAROL    CONTRACTS  315 

For  the  same  reasons  Debt  would  not  lie  for  money  payable 
by  instalments,  until  the  time  of  payment  of  the  last  instal- 
ment had  elapsed,  the  whole  amount  to  be  paid  being  re- 
garded as  an  entire  sum,  or  single  thing.1 

The  quid  pro  quo  which  the  debtor  must  receive  to  create 
his  duty  might  consist  of  anything  that  the  law  could  regard 
as  a  substantial  benefit  to  him.  Debts  were  usually  founded 
upon  a  loan  of  money,  a  sale,  a  lease  of  property  to  the 
debtor,  or  upon  work  and  labor  performed  for  him.  The  quid 
pro  quo  in  all  these  cases  is  obvious.  2  The  execution  of  a 
release  by  an  obligee  to  an  obligor  was  also  a  sufficient  quid 
pro  quo  to  create  a  new  debt  between  the  same  parties.  3  For- 
bearance to  sue  on  a  claim  has  been  regarded  in  the  same 
light :  "  for  the  forbearing  of  a  suit  is  as  beneficial  in  saving, 
as  some  other  things  would  have  been  in  gaining."  4 

But  Debt  will  not  lie  upon  mutual  promises.  In  Smith  v. 
Airey,  5  "  Holt,  C.  J.,  said  that  winning  money  at  play  did 
not  raise  a  debt,  nor  was  debt  ever  brought  for  money  won 
at  play,  and  an  Indebitatus  Assumpsit  would  not  lie  for  it; 
but  the  only  ground  of  the  action  in  such  cases  was  the 
mutual  promises.  That  though  there  were  a  promise,  yet 
Debt  would  not  lie  upon  that."  According  to  another  report 
of  the  same  case  Lord  Holt  said,  "  There  is  no  way  in  the 

well  v.  Stiglin,  Dy.  219;  Baylis  v.  Hughes,  Cro.  Car.  137;  Calthrop  v. 
Allen,  Hetl.  119;  Ramsden's  Case,  Clayt.  87;  Hooper  v.  Shepard,  2 
Stra.  1089;  Hulme  v.  Sanders,  2  Lev.  4.  In  Vaux  v.  Mainwaring, 
Fort.  197,  1  Show.  215  s.  c.,  the  distinction  was  taken  that  in  Indebi- 
tatus Assumpsit  the  plaintiff  might  recover  the  amount  proved,  but 
in  Debt  the  amount  stated  in  the  writ  or  nothing.  But  afterwards 
the  plaintiff  was  not  held  to  a  proof  of  the  amount  stated  in  the 
writ  even  in  Debt.  Aylett  v.  Lowe,  2  W.  Bl.  1221;  Walker  v.  Witter, 
Doug.  6;  M'Quillin  v.  Cox,  1  H.  Bl.  249;  Lord  v.  Houston,  11  East, 
62.  See  also  Parker  v.  Bristol  Co.,  6  Ex.  706,  per  Pollock,  C.  B.,  and 
1  Chitty,  P.  (7th  Ed.)  127-128. 

1  Rudder  v.  Price,  1  H.  Bl.  547.     [Hunt's  Case,  Ow.  42,  2  Roll.  Ab. 
523.] 

2  If  a  "bargain  was  for  the  sale  of  unascertained  chattels,  the  trans- 
action gave  rise   to  mutual   debts,  the  reciprocal   grants   of  the   right 
to   a  sum  certain  of  money  and  a  fixed   amount  of  chattels    forming 
the   quid  pro  quo   for  the  corresponding  debts.     Y.   B.   21    Hen.   VI. 
55-12;  Anon.  Dy.  30,  pi.  301;  Slade's  Case,  4  Rep.  94  b.     See  supra, 
p.  276. 

8Y.  B.  12  Hen.  IV.  17-13. 

*Bidwell  v.  Catton,  Hob.  216. 

6  2  Ld.  Ray.  1034,  6  Mod.  128,  Holt,  329  s.  c. 


316  VI.     CONTRACTS 

world  to  recover  money  won  at  play  but  by  special  Assump- 
sit."  * 

Originally  there  was  no  quid  pro  quo  to  create  a  debt 
against  a  defendant  if  the  benefit  was  conferred  upon  a  third 
person,  although  at  the  defendant's  request.  Y.  B.  9  Henry 
V.  14-23  is  a  case  in  point.  The  plaintiff,  having  a  claim 
for  £10  against  T,  released  the  claim  upon  the  defendant's 
promise  to  pay  him  the  same  amount.  The  plaintiff  failed 
because  the  benefit  of  the  release  was  received  by  T.2  In  Y. 
B.  27  Henry  VIII.  23,  upon  similar  facts,  Fitz-James,  C.  J., 
thought  the  plaintiff  should  recover  in  an  action  on  the  case 
upon  the  promise,  but  not  in  Debt,  "  for  there  is  no  con- 
tract,3 nor  has  the  defendant  quid  pro  quo."  Post,  J.,  and 
Spelman,  J.,  on  the  other  hand,  thought  there  was  a  quid 
pro  quo.  It  was  also  made  a  question,  on  the  same  ground, 
whether  a  defendant  who  promised  money  to  the  plaintiff  if 
he  would  marry  the  defendant's  daughter  was  liable  in  Debt 
to  the  plaintiff  who  married  the  daughter.4  But  here,  too, 
the  opinion  finally  prevailed  that  though  the  girl  got  the 
husband,  her  father  did  receive  a  substantial  benefit.5  In 
Y.  B.  37  Henry  VI.  9-18,  Moyle,  J.,  said:  "  If  I  say  to  a 
Surgeon  that  if  he  will  go  to  one  J  who  is  ill,  and  give  him 
medicine  and  make  him  safe  and  sound,  he  shall  have  100 
shillings,  now  if  the  Surgeon  gives  J  the  medicines  and  makes 

1  Walker  v.   Walker,   Holt,  328,  5   Mod.    13,   Comb.   303  s.    c.     Per 
Holt,  C.  J.,  "This  is  merely  a  wager  and  no  Indebitatus  Assumpsit 
lies  for  it;  for  to  make  that  lie,  there  must  be  a  work  done,  or  some 
meritorious   action    for  which   Debt   lieth."     Hard's   case,   1    Salk.    23; 
Bovey  v.  Castleman,  1  Ld.  Ray.  69.    Per  Curiam:  "  For  mutual  promises 
Assumpsit    may    lie,    but    not    Indebitatus    Assumpsit"     These    state- 
ments  that   Debt   will   not   lie   upon  mutual   promises   bring   out   with 
great    clearness    the    distinction    already   referred    to    between    mutual 
promises    and    the    mutual    duties    growing    out    of    a    parol    bargain 
and  sale.     See  Pollock,  Contracts  in  Early  English  Law,  6   Harv.  L. 
Rev.  398,  399. 

2  The   true   ground   of  this   decision   seems   sometimes  to   have  been 
misunderstood.      Holmes,   Common   Law,   267. 

3  After  Assumpsit  came  in,  it  was  many  years  before  it  was  called 
a  contract.     That  term  was  still  confined  to  transactions  resting  upon 
a  quid  pro  quo.     See  Essay  No.  59,  ante,  and  Jenks,  Doctrine  of  Con- 
sideration, 134. 

*Y.  B.  37  Hen.  VI.  8-18;  Y.  B.  15  Ed.  IV.  32-14;  Y.  B.  20  Ed. 
IV.  3-17.  [See  also  Anon.  1  Vent.  268.] 

5  Applethwaite  v.  Northby,  Cro.  El.  29;  Beresford  v.  Woodroff, 
1  Rolle,  R.  433. 


60.     AMES:    PAROL    CONTRACTS  317 

him  safe  and  sound,  he  shall  have  a  good  action  [Debt] 
against  me  for  the  100  shillings,  and  still  the  thing  is  to 
another  and  not  to  the  defendant  himself,  and  so  he  has  not 
quid  pro  quo,  but  the  same  in  effect."  This  reasoning  of 
Moyle,  J.,  met  with  general  favor,  and  it  became  a  settled 
rule  that  whatever  would  constitute  a  quid  pro  quo,  if  ren- 
dered to  the  defendant  himself,  would  be  none  the  less  a  quid 
pro  quo,  though  furnished  to  a  third  person,  provided  that 
it  was  furnished  at  the  defendant's  request,  and  that  the 
third  person  incurred  no  liability  therefor  to  the  plaintiff.  • 
Accordingly,  a  father  was  liable  for  physic  provided  for  his 
daughter ; 1  a  mother  for  board  furnished  to  her  son ; 2  a 
woman  was  charged  in  Debt  by  a  tailor  for  embroidering 
a  gown  for  her  daughter's  maid ; 3  a  defendant  was  liable  for 
instruction  given  at  his  request  to  the  children  of  a  stranger, 
or  for  marrying  a  poor  virgin.4  The  common  count  for 
money  paid  by  the  plaintiff  to  another  at  the  defendant's 
request  is  another  familiar  illustration  of  the  rule. 

But  it  is  an  indispensable  condition  of  the  defendant's 
liability  in  Debt  in  cases  where  another  person  received  the 
actual  benefit,  that  this  other  person  should  not  himself  be 
liable  to  the  plaintiff  for  the  benefit  received.  For  in  that 
event  the  third  person  would  be  the  debtor,  and  one  quid  pro 
quo  cannot  give  rise  to  two  distinct  debts.5  Accordingly 
where  the  plaintiff  declared  in  Debt  against  A  for  money 
lent  to  B  at  A's  request,  his  declaration  was  adjudged  bad; 
for  a  loan  to  B  necessarily  implied  that  B  was  the  debtor. 
If  B  was,  in  truth,  the  debtor,  the  plaintiff  should  have  de- 
clared in  Special  Assumpsit  against  A  on  the  collateral 
promise.  If  B  was  not  the  debtor,  the  count  against  A 
should  have  been  for  money  paid  to  B  at  A's  request.6  By 

1  Storehouse  v.  Bodvil,  T.  Ray.  67,  1  Keb.  439,  s.  c. 

2  Bret  v.  J.  S.,  Cro.  El.  756. 
8Shandois  v.  Stinson,  Cro.  El.  880. 
4  Harris  v.  Finch,  Al.  6. 

8  "  There  cannot  be  a  double  debt  upon  a  single  loan."  Per  Curiam, 
in  Marriott  v.  Lister,  2  Wils.  141,  142. 

8 "If  it  had  been  an  Indebitatus  Assumpsit  for  so  much  money 
paid  by  the  plaintiff  at  the  request  of  the  defendant  unto  his  son, 
it  might  have  been  good,  for  then  it  would  be  the  father's  debt  and 
not  his  son's;  but  when  the  money  is  lent  to  the  son,  't  is  his 


318  VI.     CONTRACTS 

the  same  reasoning  it  would  be  improper  to  count  against 
A  for  goods  sold  to  B  at  A's  request.  If  B  was  really  the 
buyer,  the  seller  should  charge  him  in  Debt,  and  A  in  Special 
Assumpsit  on  the  collateral  promise.  If  B  was  not  the  buyer, 
the  count  against  A  should  be  for  goods  delivered  to  B  at 
A's  request.1  The  same  distinction  holds  good  as  to  services 
rendered  to  B  at  A's  request.  If  B  is  a  debtor  A  is  not,  but 
only  collaterally  liable  in  Assumpsit.2 

The  distinction  between  Debt  and  Special  Assumpsit,  as 
illustrated  in  the  cases  mentioned  in  the  preceding  para- 
graph, is  of  practical  value  in  determining  whether  a  prom- 
ise is  in  certain  cases  within  the  Statute  of  Frauds  relating 
to  guaranties.  If  B  gets  the  enjoyment  of  the  benefit  fur- 
nished by  the  plaintiff  at  A's  request,  but  A  is  the  only  party 
liable  to  the  plaintiff,  A's  promise  is  not  within  the  statute. 
If,  on  the  other  hand,  B  is  liable  to  the  plaintiff  for  the  bene- 
fit received,  that  is,  is  a  debtor,  A's  promise  is  clearly  a  guar- 
anty and  within  the  statute.3 

There  were  obviously  many  parol  agreements  that  did  not 
come  within  the  scope  of  Debt,  Detinue,  or  Account.  This 
difficulty  was  at  length  met  by  the  action  of  Assumpsit, 
which  became,  indeed,  a  remedy  upon  all  parol  agreements.4 
But  the  distinction  between  Debt  and  Assumpsit  is  funda- 
mental. For,  while  Assumpsit  might  always  be  brought 
where  Debt  would  lie  upon  a  simple  contract,  the  converse 

proper  debt,  and  not  the  father's."  Per  Holt,  C.  J.,  in  Butcher  v. 
Andrews,  Carth.  446  (Salk.  23;  Comb.  473,  s.  c.).  See  also  Mar- 
riott v.  Lister,  2  Wils.  141. 

»Y.  B.  27  Hen.  VIII.  25-3,  per  Fitz  James,  C.  J.;  Hinson  v.  Bur- 
ridge,  Moore,  701;  Cogan  v.  Green,  1  Roll.  Ab.  594;  Anon.,  1  Vent. 
293;  Stonehouse  v.  Bodvil,  1  Keb.  439;  Hart  v.  Langfitt,  2  Ld.  Ray. 
841,  842,  7  Mod.  148  s.  c.;  Rozer  v.  Rozer,  2  Vent.  36,  overruling 
Kent  v.  Derby,  1  Vent.  311,  3  Keb.  756,  s.  c. 

2Alford  v.  Eglisfield,  Dy.  230,  pi.  56;  Baxter  v.  Read,  Dy.  272  n. 
(32) ;  Nelson's  Case,  Cro.  El.  880  (cited)  ;  Trevilian  v.  Sands,  Cro.  Car. 
107,  193,  1  Roll.  Ab.  594,  pi.  14.  A  was  the  debtor  and  B  was  not  liable 
in  Woodhouse  v.  Bradford,  2  Rolle  R.  76,  Cro.  Jac.  520  s.  c.;  Hart  v. 
Langfitt,  2  Ld.  Ray.  841,  7  Mod.  148  s.  c.;  Jordan  v.  Tompkins,  2  Ld. 
Ray.  982,  6  Mod.  77  s.  c.;  Gordon  v.  Martin,  Fitzg.  302;  Ambrose  v. 
Roe,  Skin.  217,  2  Show.  421  s.  c. 

3  Watkins  v.  Perkins,  1  Ld.   Ray.  224 ;    Buckmyr  v.  Darnell,  2  Let 
Ray.   1085,  3  Salk.  15  s.  c.;    Jones  v.  Cooper,  Cowp.  227;    Matson  v. 
Wharam,  2  T.  R.  80. 

4  For  an  account  of  the  development  of  Assumpsit  see  Essay  No.  59, 
ante. 


60.     AMES:    PAROL    CONTRACTS  319 

is  not  true.  There  were  many  cases  where  Assumpsit  was 
the  only  remedy.  Assumpsit  would  lie  both  where  the  plain- 
tiff had  incurred  a  detriment  upon  the  faith  of  the  defend- 
ant's promise,  and  where  the  defendant  had  received  a  benefit. 
Debt  would  lie  only  in  the  latter  class  of  cases.  In  other 
words,  Debt  could  be  brought  only  upon  a  real  contract, — 
Assumpsit  upon  any  parol  contract. 


61.     THE    HISTORY    OF    CONTRACT1 
BY  JOHN  WILLIAM  SALMOND  2 

modern  law  of  contract  consists  of  a  general  theory, 
I  forming  the  bond  of  union  between  numerous,  and 
otherwise  unconnected,  classes  of  contracts.  This  general 
theory  is  posterior  in  date  to,  and  different  in  origin  and 
history  from,  the  particular  contracts  which  it  comprehends. 
Buying  and  borrowing,  pledging  and  suretyship,  cannot  wait 
for  the  development  of  a  refined  system  of  law,  and  these 
processes  must  have  been  regulated  by  definite  principles 
long  before  they  were  embraced  in  a  comprehensive  generali- 
zation. A  complete  history  of  contract  must  therefore  con- 
sist of  two  parts.  With  the  first  of  these,  consisting  in  an 
enquiry  into  the  origin  and  mode  of  development  of  the 
different  species  of  contracts,  we  have  not  here  to  do. 
Our  attention  will  be  confined  to  the  rise  of  the  general 
principles  that  have  given  system  and  unity  to  the  mass  of 
detail. 

The  general  theory  of  contract  is  almost  entirely  of  domes- 
tic origin.  In  Bracton  and  Fleta  indeed  we  find  an  attempt 
to  employ  the  general  principles  of  the  Roman  Law  as  a  set- 
ting for  English  contracts, 8  but  the  chief  significance  of  this 

*This  Essay  was  first  published  in  the  Law  Quarterly  Review,  1887, 
Vol.  Ill,  pp.  166-179. 

2  Parliamentary  Counsel  to  the  New  Zealand  Government,  and  head 
of  the  Law  Drafting  Office,  since  1907. 

M.  A.  1882,  New  Zealand  University,  LL.  B.  1887,  London  University; 
Professor  of  law  in  University  of  Adelaide ;  Professor  of  law  in  Victoria 
University  College,  Wellington,  New  Zealand,  1906. 

Other  Publications:  Essays  in  Jurisprudence  and  Legal  History, 
1891;  Jurisprudence,  or  The  Theory  of  the  Law,  1st  ed.  1902,  3d  ed. 
1907;  The  Law  of  Torts,  1907;  and  other  articles  in  the  Law  Quarterly 
Review,  etc. 

»  Bracton,  99,  100;   Fleta,  ii.  56. 


61.     SALMOND:  HISTORY  OF  CONTRACT  321 

attempt  lies  in  its  failure.  Perhaps  in  no  other  part  of  the 
law  have  Roman  principles  been  so  prominently  introduced, 
only  to  be  so  completely  rejected.  The  English  law  was  thus 
left  to  fashion  a  theory  of  contract  for  itself.  The  manner 
in  which  it  did  so  is  an  excellent  illustration  of  the  operation 
of  modes  of  procedure  in  determining  the  development  and 
form  of  the  substantive  law,  for  the  history  of  the  law  of 
contract  is  almost  entirely  comprised  in  that  of  three  forms 
of  action.  These  are  Debt,  Covenant,  and  Assumpsit. 

The  first  of  these  can  be  traced  back  to  the  beginnings  of 
the  law,  but  the  earliest  fact  respecting  it  which  need  here  be 
noticed  is  its  division  into  the  two  actions  of  debt  and  detinue. 
Save  for  obscure  hints  in  Bracton  and  Fleta,1  there  seems 
to  be  no  reference  to  this  division  in  the  early  legal  writers, 
though  it  appears  as  well  established  in  the  Year  Books  of 
Edward  I.2  It  was  based,  not,  as  is  often  said,3  on  the  dis- 
tinction between  money  and  chattels,  but  apparently  on  that 
between  obligation  and  property.  Detinue  was  an  action 
for  the  recovery  of  money  or  chattels  of  which  the  plaintiff 
had  the  ownership ;  debt  for  the  recovery  of  money  or  chat- 
tels over  which  the  plaintiff's  right  was  merely  in  personam. 4 
This  division  had  important  effects  upon  the  law  of  contract, 
for  it  is  evident  that  all  bailments  would  be  relegated  to  the 
action  of  detinue.  Now  this  action  played  no  part  in  the  de- 
velopment of  the  theory  of  contract,  and  bailments  conse- 
quently remained  outside  that  theory  until  the  rise  of  the 
action  of  assumpsit  restored  them  to  their  rightful  position 
as  a  class  of  contracts.  Furthermore  this  removal  of  bail- 
ments rendered  possible,  as  will  be  seen  later,  an  important 
generalization  within  the  action  of  debt.  It  is  evident  that 
debt,  as  the  general  remedy  for  all  obligations  that  gave  rise 
to  liquidated  claims,  must  have  had  a  scope  in  some  respects 
wider  and  in  some  narrower  than  the  sphere  of  contract. 
Since,  however,  the  cases  in  which  it  was  the  remedy  for 

Bracton,  102  b;    Fleta,  ii.  60. 

2  Y.  B.  20  &  21  Ed.  I.  189. 

3  Holmes,  Common  Law,  252. 

4  Debt  for  chattels:  — Y.  B.  20  &  21  Ed.  I.  139;  Y.  B.  3  Ed.  II.  57; 
Y.  B.  12  Ed.  II.  354.    Detinue  for  money:  — Y.  B.  6  Ed.  II.  192;    cf. 
Y.  B.  33-35  Ed.  I.  454. 


322  VI.     CONTRACTS 

causes  of  action  not  contractual  were  comparatively  unim- 
portant, they  may  be  here  neglected. 

In  every  action  of  debt  two  elements  were  originally  neces- 
sary, a  justa  causa  debendi  and  a  legal  proof.1  There  were 
within  historical  times  two  principal  modes  of  proof,  the 
cart  a  or  written  acknowledgment,  and  the  sect  a  or  train  of 
witnesses.  It  is  to  this  fact  that  we  owe  the  distinction  be- 
tween specialty  debts  and  debts  on  simple  contract.  With 
respect  to  the  causae  debendi  the  most  important  fact  to  be 
noticed  is  that  among  them  the  early  law  did  not  include  a 
promise  or  agreement.  The  idea  of  the  obligatory  nature 
of  a  mere  executory  agreement  seems  to  have  been  unknown, 
and  part  performance  was  a  condition  precedent  to  the  ex- 
istence of  an  obligation.2  Indeed  it  is  doubtful  whether  an 
agreement  was  in  any  distinct  manner  recognised  as  an  ele- 
ment of  debt,  or  whether  any  conscious  distinction  was  drawn 
between  obligations  ex  contractu  and  any  other  form  of  ob- 
ligation.3 It  was  an  accident  of  procedure  that  first  intro- 
duced into  the  law  the  principle  of  enforcing  mere  promises. 
A  written  acknowledgment  of  a  debt,  or  written  promise  to 
pay  it,  was  obviously  the  best  evidence  that  could  be  ob- 
tained, and  by  a  transition  very  natural  to  early  law  it  passed 
from  the  position  of  good  evidence  to  that  of  conclusive 
proof.  This  appears  from  Bracton:  *  Per  scripturam-yercr 
obligatur  quis,  ut  si  quis  scripserit  alicui  se  debere,  sive  pe- 
cunia  numerata  sit  sive  non,  obligatur  ex  scriptura,  nee 
habebit  exceptionem  pecuniae  non  numeratae  contra  scriptu- 
ram,  quia  scripsit  se  debere.'4  The  obvious  effect  of  this 
rule  of  evidence  upon  the  substantive  law  was  that  a  written 
promise  to  pay  ceased  to  be  a  mere  proof  of  an  already  ex- 
isting debt,  and  became  a  causa  debendi  itself.  Thus  was 
introduced  into  the  English  law  a  formal  contract,  and  it 
would  seem  that  to  this  same  application  of  estoppel  early 
law  is  largely  indebted  for  this  class  of  contract.  Thus  in 

JGlanvil,  x.  3;    x.   12. 

2Giiterbock,  Bracton  (by  Coxe),  138-139. 

8  Holmes,  Common  Law,  264.  « But  the  old  debts  were  not  conceived 
of  as  raised  by  a  promise.  They  were  a  "duty"  springing  from  the 
plaintiff's  (?  defendant's)  receipt  of  property,  a  fact  which  could  be 
seen  and  sworn  to.' 

*  Bracton,  100  b. 


61.     S ALMOND:  HISTORY  OF  CONTRACT  323 

the  law  of  Rome  the  contract  literis  and  the  release  by  ac- 
ceptilatio  are  undoubted  instances  of  the  process,1  though  to 
extend  the  same  explanation  to  the  stipulation  might  be  over- 
bold. 

•  In  debts  proved  by  good  suit,  on  the  other  hand,  it  re- 
,  mained  necessary  to  allege  an  independent  causa  debendi. 
'  En  dette  sur  contract  le  plaintiff  monstra  in  son  count  pur 
quel  cause  le  defendant  devient  son  dettour.  Autrement  in 
dette  sur  obligation,  car  1'obligation  est  contract  in  luy 
meme.' 2  /What  then  were  these  causae?  To  give  a  com- 
plete list  of  them  is  impracticable,  but  they  were  such  trans- 
actions as  sale,  barter,  loan  (mutuum),  and  hiring  of  serv- 
ices. The  common  feature  of  them  all  was  something  given 
or  done  on  one  side  in  return  for  something  to  be  given  or 
done  on  the  other.  A  generalization  of  the  causae  debendi 
was  therefore  possible,  and  this  resulted  in  the  well-known 
doctrine  of  quid  pro  quo.  It  was  laid  down  that  debt  on  a 
simple  contract  did  not  lie  unless  the  defendant  had  received 
something  in  recompense  for  the  obligation  sought  to  be 
enforced  against  him.3  The  cause  that  led  to  this  explicit 
statement  of  what  had  been  implicit  from  the  earliest  times 
was  probably  the  disturbing  influence  of  the  idea  that  simple 
contract  debts  were  really  based  upon  promises,  and  the  con- 
sequent necessity  of  defining  the  limits  within  which  a  promise 
was  obligatory.  In  the  early  theory  of  contract  quid  pro 
quo,  as  yet  ungeneralized,  was  the  principal ;  the  promise, 
if  recognised  at  all,  merely  the  accessory.  With  the  progress 
of  legal  theory,  however,  this  relation  became  reversed,  and 
quid  pro  quo  assumed  the  aspect  of  a  limitation  upon  the 
^binding  effect  of  promises. 

The  exact  date  of  this  generalization  is  uncertain.  What 
seems  the  earliest  mention  of  the  term  occurs  in  39  Ed.  Ill,4 
where  however  it  is  unconnected  with  contract.  In  9  Hen. 


1  Hunter,  Roman  Law,  355  (1st  ed.)  ;  Inst.  Just.  3,  29,  1;  Gaius,  3, 
173.  See  Mr.  Moyle's  Excursus  VIII.  in  his  edition  of  the  Institutes. 

'Bellewe,  8  Rich.  II.   Ill    (ed.  1869). 

3  There  existed  one  exception  to  this  rule,  namely  suretyship.  The 
anomalous  nature  of  this  contract  was  soon  perceived,  and  a  sealed 
writing  became  necessary  for  its  validity.  Holmes,  Common  Law,  264. 

*Y.  B.  39  Ed.  III.  18. 


324  VI.     CONTRACTS 

V  l  debt  was  brought  by  a  plaintiff  who  had  released  a  judg- 
ment debtor  on  the  promise  of  the  defendant  to  become 
debtor  in  his  stead.  It  was  held  that  this  was  not  sufficient 
matter  in  law  to  charge  the  defendant.  This  is  a  good  ex- 
ample of  the  kind  of  case  that  must  have  led  to  the  formula- 
tion of  the  doctrine  of  quid  pro  quo,  but  the  report  makes 
no  use  of  that  expression.  In  7  Hen.  VI  we  find  an  objec- 
tion made  to  the  absence  of  quid  pro  quo,  though  not  in  an 
action  of  debt,2  and  thirty  years  later  the  rule  is  treated 
as  perfectly  familiar.3  In  16  Ed.  IV  4  it  is  remarked  that 
4  parols  sans  reason  '  have  no  binding  force.  The  principle 
in  question  has  been  somewhat  hastily  identified  with  the 
modern  principle  of  consideration,  but  as  we  shall  see  it  is 
very  doubtful  whether  there  is  between  them  any  historical 
connection  whatever. 

The  second  form  of  action  to  be  considered  is  that  of 
Covenant.  By  the  time  of  Edward  I  this  was  fully  estab- 
lished as  a  general  contractual  remedy  by  which  damages 
could  be  obtained  for  the  breach  of  any  agreement  under  seal. 
It  seems  probable  that  this  action  passed  into  the  law  of 
contract  from  the  law  of  real  property,  the  earliest  conven- 
tiones being  leases  of  land  for  life  or  years.5  However  this 
may  be,  its  history  as  a  general  contractual  remedy  can  be 
traced  with  considerable  clearness  in  the  early  writers.  Glan- 
vil  tells  us  that  privatae  conventiones  were  not  enforceable.6 
This  assertion  seems  sometimes  to  be  interpreted  as  meaning 
merely  that  contracts  were  invalid  unless  reduced  to  wri- 
ting ; 7  but  Glanvil  himself  defines  privatae  conventiones  as 
agreements  made  anywhere  save  in  the  King's  Court.  If  not 

JY.  B.  9  Hen.  V.  14. 

2Y.  B.  7  Hen.  VI.  1.  This  is  an  action  of  deceit  on  the  case,  but 
there  is  no  doubt  whatever  that  quid  pro  quo  originated  in  debt,  and 
an  examination  of  the  case  will  show  that  the  objection  in  question  is 
merely  a  verbal  one. 

8Y.  B.  37  Hen.  VI.  8. 

«Y.  B.  16  Ed.  IV.  9. 

5Digby's  History  of  the  Law  of  Real  Property,  49  and  144. 

•  Glanvil,  x.  8.  'Super  hoc  notandum  est  quod  Curia  domini  regis 
hujusmodi  privatas  conventiones  de  rebus  dandis  vel  accipiendis  in 
vadium,  vel  alias  hujusmodi,  extra  Curiam  sive  etiam  in  aliis  Curiis 
quam  in  Curia  domini  regis  factas,  tueri  non  solet  nee  warrantizare ;  et 
ideo  si  non  fuerint  servatae  Curia  domini  regis  se  inde  non  intromittet.' 

7  Guterbock,  138-139. 


61.     SALMOND:  HISTORY  OF  CONTRACT  325 

there  made,  no  executory  contract  was  enforceable  whether 
reduced  to  writing  or  not.  By  the  time  of  Bracton  we  find 
an  advance  in  legal  theory,  for  covenants  are  now  enforced 
in  the  King's  Court  not  of  right  but  occasionally  de  gratia. 
4  Non  solet  aliquando  necessitas  imponi  curiae  domini  regis 
de  hujusmodi  conventionibus  privatis  discutere.  Sed  tamen 
si  quis  a  conventione  recedat,  succurritur  alteri  parti  per 
actionem  de  conventione.' 1  Finally  in  Fleta  the  foregoing 
passage  is  transcribed  with  an  omission  of  all  reference  to 
the  remedy  being  of  grace  rather  than  of  right.2  Unlike 
debt  and,  as  will  be  seen,  unlike  assumpsit,  covenant  was  from 
the  first  recognised  as  a  remedy  for  breach  of  promise.  Un- 
like these  actions  therefore  its  origin  imposed  no  limitation 
on  its  scope,  and  it  threatened  to  become  co-extensive  with 
agreements.  A  limitation  stringent  enough  however  was  im- 
posed by  the  law  of  evidence.  In  20  Ed.  I  3  a  plaintiff  of- 
fered good  suit  to  prove  his  covenant,  and  it  was  decided 
that  a  writing  was  the  only  admissible  proof  of  an  agreement.1 
This  rule  determined  the  whole  future  history  of  the  law 
of  contract,  for  it  obtained  recognition  at  a  time  when  a  wri- 
ting meant  a  writing  under  seal,  and  covenant  was  thus  re- 
stricted to  a  class  of  agreements  that  became  narrower  every 
day. 

The  limitations  thus  sought  to  be  imposed  on  the  law  of 
contract  proved  too  strait  to  be  borne.  A  form  of  action 
never  fashioned  for  that  end  was  soon  pressed  into  the  serv- 
ice for  which  debt  and  covenant  had  proved  inadequate,  and 
this  in  process  of  time  developed  into  the  third  and  most 
important  contractual  remedy.  Of  the  origin  and  nature 
of  Trespass  on  the  Case  it  is  needless  here  to  speak,  but  a 
subject  deserving  some  consideration  is  the  process  by  which 
it  became  a  remedy  for  breach  of  contract.  It  was  intended 
as  a  provision  for  those  cases  of  damage  to  person  or 
property  that  did  not  fall  within  the  original  scope  of  tres- 
pass. Now  inasmuch  as  breach  of  contract  is  a  fruitful 
source  of  damage  to  person  and  property,  it  is  evident  that 

1  Bracton,  34.     See  also  100. 
1  Fleta,  iii.  14,  3. 
3  20  &  21  Ed.  I.  222. 


326  VI.     CONTRACTS 

in  many  instances  trespass  on  the  case  must  have  been  in 
reality  a  contractual  remedy.  Very  frequently  therefore 
an  undertaking  or  assumpsit  formed  part  of  the  circum- 
stances of  the  case,  and  appeared  in  the  count.1  This  aspect 
of  trespass  on  the  case  was  early  perceived,  and  the  objec- 
tion used  at  first  to  be  brought  that  in  such  cases  covenant 
was  the  appropriate  and  exclusive  remedy.  This,  how- 
ever, was  overruled.  Thus  in  48  Ed.  Ill,  in  an  action 
against  a  surgeon  for  negligence,  it  is  said  :  '  This  action 
of  covenant  is  of  necessity  maintainable  without  specialty, 
because  for  every  little  thing  a  man  cannot  have  a  clerk 
to  make  a  deed.'  2  In  a  similar  case  in  11  Rich.  II  3  the 
contract  was  made  in  London,  and  the  negligent  perform- 
ance of  it  occurred  in  Middlesex.  A  dispute  arising  as  to 
the  venue,  it  was  decided  that  issue  might  be  joined  either 
on  the  assumpsit  or  on  the  *  contrary  medicines,'  and  that 
the  venue  would  be  determined  accordingly.  This  shows  a 
distinct  appreciation  of  the  double  character  of  the  action, 
trespass  from  one  point  of  view,  covenant  from  another. 

Now  happened  an  event  closely  analogous  to  what  we 
have  already  noticed  in  the  history  of  debt.  In  trespass 
on  the  case,  as  in  debt,  a  promise  was  not  originally  the- 
cause  of  liability,  but  merely  an  accessory;  in  both  actions 
the  promise  came  subsequently  to  be  regarded  as  the  prin- 
cipal; and  in  both  a  consequent  necessity  arose  of  limiting 
the  new  principle  by  a  generalized  statement  of  the  old.  In 
debt  this  resulted,  as  has  been  seen,  in  the  doctrine  of  quid 
pro  quo.  In  assumpsit  it  resulted  first  of  all  in  the  rule 
that  the  action  lay  for  a  breach  of  promise  by  malfeasance 
only,  as  distinguished  from  a  breach  by  nonfeasance.4  This 
rule  was  evidently  a  recognition  that  the  action,  though 
from  one  point  of  view  contractual,  was  in  reality  delictual. 
If  it  resulted  from  a  mere  omission,  damage  to  the  plain- 
tiff's person  or  property  was  not  regarded  as  a  cause  of 
action;  for,  generally  speaking,  it  is  only  through  a  con- 


*22  Ass.  94;   Y.  B.  43  Ed.  III.  33. 
2  48  Ed.  III.  6. 

"Bellewe,  5  and  332  (ed.  1869). 
4Y.  B.  2  Hen.  IV.  3. 


61.     S ALMOND:  HISTORY  OF  CONTRACT  327 

tractual  obligation  that  a  man  becomes  liable  for  passively 
permitting  another's  loss. 

For  a  century  the  '  merveillous  ley  '  that  resulted  from 
this  distinction  was  subjected  to  a  vigorous  attack, l  until 
at  last  in  £0  Hen.  VII  the  efforts  of  the  assailants  proved 
victorious.  In  this  year  it  was  decided,  in  defiance  of  all 
precedent,  that  an  action  on  the  case  lay  for  a  nonfeasance. 
4  If  I  covenant  for  money  to  build  a  house  by  such  a  day, 
and  do  it  not,  an  action  on  the  case  lies  for  the  nonfeasance.' 2 
This  piece  of  judicial  legislation  obtained  immediate  recog- 
nition,3 and  from  this  time  the  law  of  contract  may  be 
regarded  as  established  in  what  is  practically  its  modern 
form. 

</  It  might  be  supposed  that  after  this  extension  assumpsit 
would  become  coextensive  with  parol  agreements.  Not  so 
however.  There  is  no  more  curious  feature  in  the  history 
of  the  English  law  of  contract  than  the  manner  in  which 
limitations  were  invariably  imposed  upon  the  scope  of  con- 
tractual remedies  and  the  obligatory  nature  of  agreements. 
The  limitation  now  imposed  upon  assumpsit  was  the  neces- 
sary result  of  the  fact  that  it  was  an  action  ex  delicto 
perverted  into  a  contractual  remedy.  A  purely  delictual 
action  is  based  upon  detriment  suffered  by  the  plaintiff, 
and  that  detriment  is  the  measure  of  damages.  A  purely 
contractual  action,  on  the  other  hand,  is  based  on  breach 
of  promise,  whether  accompanied  by  detriment  or  not,  and 
the  measure  of  damages  is  the  benefit  that  would  have  re- 
sulted to  the  plaintiff  from  performance.  The  employment 
of  an  action  ex  delicto  as  a  remedy  for  breach  of  contract 
naturally  resulted  in  a  union  of  these  two  principles ;  the 
real,  though  not  the  ostensible,  cause  of  action  continued 
to  be  injury  to  the  plaintiff,  but  the  amount  of  this  injury 
was  immaterial,  for  the  measure  of  damages  was,  as  in  a 
true  contractual  action,  the  benefit  that  would  have  resulted 
from  performance.4  This  injury  which,  though  an  essential 

*Y.  B.  11  Hen.  IV.  33;  Y.  B.  3  Hen.  VI.  36;  Y.  B.  14  Hen.  VI.  18; 
Y.  B.  20  Hen.  VI.  34;   Y.  B.  21  Hen.  VI.  55. 
'Y.  B.  20  Hen.  VII.  9. 
8Y.  B.  21   Hen.  VII.  41. 
4  For  example:   Defendant  spoils  cloth  sent  to  him  by  plaintiff  to  be 


328  VI.     CONTRACTS 

element,  was  neither  the  measure  of  damages  nor  the  os- 
tensible cause  of  action,  operated  as  a  limitation  upon  the 
action  of  assumpsit,  and  in  a  slightly  modified  form  is  still 
to  be  seen  in  the  modern  requirement  of  Consideration.  It 
is  true  that  valuable  consideration  is  generally  regarded  as 
being  of  two  kinds,  only  one  of  which  consists  in  damage 
to  the  plaintiff.  But  even  that  form  of  consideration  which 
consists  in  a  benefit  to  the  defendant  ought  logically  and 
historically  to  be  regarded  as  an  injury  to  the  plaintiff 
from  whom  it  moves.  And  such  is  now  the  prevalent  opin- 
ion. '  Detriment  to  the  promisee  is  a  universal  test  of  the 
sufficiency  of  consideration  '  in  assumpsit :  Langdell,  Sum- 
m^y,  §  64. 

The  rule  that  assumpsit  would  not  lie  unless  the  plain- 
tiff had  suffered  damage  required  and  received  distinct  recog- 
nition on  the  extension  of  the  action  to  nonfeasance.  It  was 
held  that  a  breach  of  contract  by  nonfeasance,  as  a  failure 
to  build  a  house,  was  no  ground  of  action  unless  loss  had 
been  incurred,  as  by  prepayment  of  the  price.  In  21  Hen. 
VII,  Chief  Justice  Frowike  says,  '  I  shall  have  a  good  action 
on  my  case  by  cause  of  the  payment  of  the  money,  and 
without  payment  of  the  money  in  this  case  there  is  no 
remedy;  and  yet  if  he  builds  the  house  and  does  it  badly, 
an  action  on  my  case  lies.  .  .  .  And  so  it  seems  to  me  that 
in  the  case  at  bar  the  payment  of  the  money  is  the  cause 
of  the  action  on  the  case.' 1 

It  has  been  already  said  that  this  requirement  of  injury 
to  the  plaintiff,  which  existed  in  assumpsit  as  a  relic  of  the 

made  into  a  coat.  In  a  purely  delictual  remedy  the  damage  done  to  the 
cloth  is  the  ground  of  action,  and  the  value  of  the  cloth  the  measure  of 
damages.  If  such  a  remedy  is  perverted  into  a  contractual  one,  the 
ostensible  ground  of  action  is  the  failure  to  make  a  coat,  and  the  meas- 
ure of  damages  is  the  value  of  the  coat;  while  the  damage  to  the  cloth 
remains  as  a  limitation  upon  the  scope  of  the  action  as  a  contractual 
remedy. 

1  Keilwey,  78.  See  also  F.  N.  B.,  Covenant.  Of  course  this  rule  has 
no  connection  with  the  requirement  of  quid  pro  quo,  which  was  rigor- 
ously confined  to  the  action  of  debt.  In  Y.  B.  3  Hen.  VI.  36,  is  re- 
ported an  anomalous  case,  in  which  to  assumpsit  for  a  nonfeasance  it 
was  objected  that  no  recompense  had  been  assigned  for  the  feasance. 
That  no  such  requirement  then  existed  is  certain;  for  assumpsit  did  not 
lie  for  a  nonfeasance  in  any  case,  and  it  lay  for  a  malfeasance  irre- 
spective of  reward.  See  Pollock,  Princ.  of  Contr.,  676. 


61.     SALMOND:  HISTORY  OF  CONTRACT  329 

original  delictual  character  of  the  action,  is  represented 
with  some  modifications  by  the  modern  rule  as  to  considera- 
tion. The  cause  and  the  significance  of  these  modifications 
constitute  the  obscurest  problem  in  the  history  of  contract. 
The  theory  to  be  here  advanced  is  that  there  is  no  his- 
torical connection  between  consideration  and  the  original 
limitation  of  assumpsit,  but  that  the  former  was  an  independ- 
ent development  in  another  part  of  the  law,  which  by  its 
strong  analogy  to  the  aforesaid  limitation  was  enabled  to 
introduce  itself  into  assumpsit  and  t,o  supplant  the  earlier 
principle.  This  process  must  have  taken  place  between  the 
end  of  the  reign  of  Henry  VII,  when  assumpsit  was  ex- 
tended to  nonfeasance,  and  the  beginning  of  the  reign  of 
Elizabeth,  in  whose  tenth  year  the  later  principle  appears 
in  an  unmistakeable  form.1  There  can  be  little  doubt  that 
the  idea  of  consideration  received  its  first  applications  from 
the  Court  of  Chancery,  where  it  formed  an  essential  part 
of  the  equitable  doctrine  of  uses.  It  is  needless  here  to 
enter  into  the  details  of  the  varied  and  extensive  use  made 
of  this  principle  by  equity;  it  is  sufficient  to  mention  the 
necessity  for  good  consideration  in  covenants  to  stand  seised 
to  uses,  in  conveyances  without  declaration  of  uses,  and  in 
the  alienation  of  land  subject  to  uses.  The  application  of 
consideration  to  the  law  of  uses  has  been  brought  into  special 
prominence,  partly  by  the  importance  of  this  branch  of 
equitable  jurisdiction,  and  partly  by  the  operation  of  the 
Statute  of  Uses;  but  there  is  no  sufficient  reason  for  sup- 
posing that  this  was  the  only  equitable  application  of  the 
principle.  There  are  some  grounds  for  believing  that  con- 
sideration was  originally  in  equity,  as  subsequently  in  law, 
a  principle  of  contract.  That  there  was  an  equitable  juris- 
diction in  contract  is  undoubted.  In  8  Ed.  IV2  the  right 
to  determine  suits  pro  fidei  laesione  was  distinctly  claimed 
and  exercised  by  the  Chancellor.  Fairfax,  a  judge  of  this 
reign,  jealous  of  the  growing  jurisdiction,  urged  that  the 
action  on  the  case  ought  to  be  extended  so  as  to  obviate  the 


1Dyer,  272  a. 

2  Y.  B.  8  Ed.  IV.  4. 


330  VI.     CONTRACTS 

necessity  of  an  appeal  to  Chancery. l  From  the  Diver  site 
de  courtes  2  we  learn  that  '  a  man  can  have  remedy  in  the 
Chancery  for  covenants  made  without  specialty,  if  the  party 
has  sufficient  proof  of  the  covenants,  since  he  is  without 
remedy  at  the  common  law.'  It  was  doubtless  in  order  to 
check  the  growth  of  this  jurisdiction  that  the  judges  ex- 
tended the  remedy  of  assumpsit,  as  already  mentioned.  Fi- 
neux,  one  of  the  authors  of  this  change,  remarks  that  since 
the  party  can  have  assumpsit  for  a  nonfeasance,  '  there  will 
be  no  necessity  for  a  subpoena.'  3  On  the  extension  of  the 
common  law  action,  Chancery  to  a  large  extent  abandoned 
its  jurisdiction  over  contracts,  though  a  relic  of  it  is  still 
to  be  seen  in  the  remedy  of  specific  performance.4 

There  is  little  or  no  direct  evidence  that  consideration  was 
applied  by  equity  to  contracts,  for  few  examples  of  this 
branch  of  equitable  jurisdiction  are  to  be  found.  It  ap- 
pears from  the  early  bills  in  Chancery  that  the  term  con- 
sideration, with  its  synonym  cause,  was  in  use  in  contracts 
as  early  as  the  reign  of  Edward  IV ;  5  but  to  what  extent 
these  words  had  a  technical  meaning,  or  bore  reference  to 
a  definite  legal  principle,  it  is  impossible  to  tell.  In  the  ab- 
sence of  direct  evidence  we  must  fall  back  upon  inference. 
Even  within  the  law  of  uses  we  find  consideration  applied 
to  contracts,  for  covenants  to  stand  seised  to  uses  (which 
might  be  by  parol  6)  were  limited  by  this  requirement.  That 
this  was  an  isolated  application  of  the  principle  to  a  single 
class  of  contracts  seems  a  much  less  probable  supposition 
than  that  it  was  merely  a  particular  instance  of  a  rule  re- 
quiring a  consideration  in  all  contracts  whatever.  Fur- 
thermore the  principle  in  question  is  applied  by  equity  to 
contracts  at  the  present  day.  As  has  been  said,  specific 
performance  is  a  relic  of  the  general  equitable  jurisdiction 
in  contract.  Now  the  application  of  this  remedy  is  still 
limited  by  the  requirement  of  consideration,  a  requirement 

1 Y.  >B.  21  Ed.  IV.  23. 

2  Chauncerie. 

3  Y.  B.  21  Hen.  VII.  41. 

4  1  Spence,  Equit.  Jur.  645 ;    Bro.  Ab.,  Action  sur  le  case,  72. 
6  1  Proceed,  in  Ch.,  Introd.  70  and  88,  fol.  ed. 

6  Spence,  Equit.  Jur.  478,  note. 


61.     SALMOND:  HISTORY  OF  CONTRACT  331 

more  imperative  than  in  the  common  law,  inasmuch  as  it 
disregards  the  distinction  between  specialty  and  parol  agree- 
ments. For  the  application  of  this  principle  to  contracts 
therefore,  either  equity  must  be  indebted  to  the  law,  or  the 
law  to  equity.  Can  the  former  supposition  be  maintained, 
when  we  know  that  to  equity  is  due  the  origin  of  the  prin- 
ciple, and  its  varied  applications  throughout  the  law  of 
uses,  trusts,  and  even  in  particular  instances  contract  it- 
self? 

•/  In  treating  of  the  history  of  this  subject  it  is  essential 
to  bear  in  mind  that  consideration  was  not  what  is  now  known 
as  valuable  consideration.  It  was  a  much  wider  idea,  and 
may  be  defined  as  any  motive  or  inducement  which  could  be 
regarded  as  rational  and  sufficient.  It  included  four  prin- 
cipal species:  first,  valuable  consideration;  second,  natural 
affection ;  third,  legal  obligation ;  and  fourth,  moral  obliga- 
tion. This  wide  idea  was  destined  to  undergo  a  process  of 
atrophy,  the  result  of  which  has  been  that  at  the  present 
day  it  is  practically  reduced  to  valuable  consideration, 
though  various  relics  of  the  original  doctrine  are  still  to  be 
met  with  scattered  through  the  law.  The  proofs  of  the 
original  form  of  the  idea,  and  of  its  more  or  less  complete 
application  in  this  form  to  assumpsit,  are  in  the  main  the 
,  same,  and  may  be  given  together :  — 

At  the  time  when  its  legal  use  originated,  the  word  was 
popularly  used  in  the  wide  sense  above  indicated.  Thus  in 
Doctor  and  Student : 1  '  The  said  statute  was  well  and  law- 
fully made,  and  upon  a  good  reasonable  consideration.'  In 
all  probability  the  legal  and  popular  uses  were  at  first  iden- 
tical. Secondly,  that  natural  affection  originally  formed 
part  of  the  idea  in  question  needs  no  proof,  for  even  at  the 
present  day  it  receives  nominal  recognition  under  the  title 
of  good  consideration.2  What  is  perhaps  the  first  mention 
of  consideration  in  the  Year  Books  is  in  20  Hen.  VII,  where 
it  is  said  of  a  grant :  '  it  was  made  on  good  consideration, 
for  the  elder  brother  is  bound  by  the  law  of  nature  to 

1 1.  2,  c.  55. 

2  This  was  originally  the  generic  name,  including  valuable  considera- 
tion as  a  species. 


332  VI.     CONTRACTS 


aid  and  comfort  his  younger  brother.'  l  The  relationship 
of  good  to  valuable  consideration  can  be  satisfactorily  ex- 
plained only  on  the  theory  that  they  were  originally  species 
of  a  generic  notion,  which  could  not  have  been  narrower 
than  that  above  indicated.  Thirdly,  that  consideration 
originally  included  legal  obligation  seems  the  only  possible 
explanation  of  such  actions  as  indebitatus  assumpsit*  and 
insimul  comput assent.3  If  the  idea  in  question  had  been 
as  narrow  when  these  actions  originated  as  it  is  now,  there 
must  have  been  an  absurdity  in  alleging  a  debt  as  a  con- 
sideration for  a  promise  to  pay  it.  Fourthly,  that  in  certain 
cases  moral  obligation  was  regarded  as  a  good  consideration, 
may  be  gathered  from  anomalies  that  exist  even  at  the  pres- 
ent day.  These  and  other  exceptions  to  strict  theory  are 
commonly  explained  as  relaxations  that  have  been  gradually 
permitted  in  the  rule  respecting  cqpsideratkin.4  But  it  is 
extremely  difficult  to  see  how  sucn  exceptions  could  ever 
have  been  allowed  entrance  into  the  law.  A  far  more  sat- 
isfactory explanation  is  that  these  anomalies  are  the  relics 
of  a  wider  rule  that  included  both  the  modern  rule  and  the 
modern  exceptions  to  it.  Such  an  exception  is  to  be  seen 
in  the  doctrine  that  a  past  consideration  is  sufficient  to 
sustain  a  promise  if  moved  by  a  precedent  request.  The 
first  statement  of  this  rule  is  reported  in  10  Elizabeth.  As- 
sumpsit  was  brought  on  a  promise  to  indemnify  the  plain- 
tiff, who  had  previously  become  bail  for  the  defendant's 
servant.  '  By  opinion  of  the  court  it  does  not  lie  in  this 
matter,  because  there  is  no  consideration  wherefore  the 
defendant  should  be  charged  for  the  debt  of  his  servant, 
....  for  the  master  did  never  make  request  to  the  plain- 
tiff to  do  so  much  for  his  servant,  but  he  did  it  of  his  own 
head.'  £  The  rule  is  evidently  based  on  the  idea  that  there 
is  no  moral  obligation  to  recompense  a  benefit,  and  there- 
fore no  consideration  for  a  promise  to  do  so,  unless  the 

»Y.  B.  20  Hen.  VII.  11. 

2Bro.  Ab.,  Action  sur  le  case,  5  and  105;   4  Leonard,  2;   2  Bendloes, 
84.    But  see  a  different  view  in  Langdell,  §  90. 
8  Moore,  708. 
4  Pollock,  Contracts,  171. 
6  Dyer,  272  a. 


61.     S  ALMOND:  HISTORY  OF  CONTRACT  333 

benefit  is  conferred  at  the  request  of  the  person  bene- 
fited.1 

Of  the  method  in  which  this  principle  obtained  entrance 
into  the  action  of  assumpsit,  there  seems  to  be  little  or  no 
evidence;  but  if  we  take  into  account  the  facts  that  it  was 
probably  applied  to  contracts  by  equity,  that  the  develop- 
ment of  assumpsit  was  determined  by  the  desire  to  absorb 
the  equitable  jurisdiction  in  contract,  that  since  the  Statute 
of  Uses  consideration  had  spread  widely  through  the  com- 
mon law,  and  that  a  strong  resemblance  existed  between 
consideration  and  "the  common  law  limitation  of  assumpsit, 
it  can  scarcely  be  a  matter  of  surprise  that  the  latter  was 
finally  supplanted  by  the  former. 

Had  the  idea  of  consideration  proved  more  stable,  and 
made  successful  resistance  to  the  process  by  which  it  has 
been  reduced  to  its  modern  limits,2  its  introduction  into  as- 
sumpsit would  have  caused  a  profound  modification  of  the 
law  of  contract.  As  it  is,  however,  it  may  be  said  that 
even  had  this  equitable  principle  never  been  borrowed  by 
the  common  law,  the  law  of  contract  would  have  been,  except 
in  one  point,  practically  identical  with  what  it  now  is. 
The  exception  lies  in  this,  that  whereas  the  original  limita- 
tion of  assumpsit  consisted  simply  in  detriment  to  the  prom- 
isee, consideration  consists  in  such  detriment  regarded  as 
an  inducement  to  the  promise.  The  difference  is  important, 
for  its  effect  was  to  render  assumpsit  inapplicable,  save  by 
reasoning  approaching  closely  to  the  fictitious,  to  the  very 
cases  to  which  trespass  on  the  case  was  first  applied.  Coggs 
v.  Bernard  is  a  typical  example  of  this.  Damage  directly 
resulting  from  the  breach  of  contract,  as  the  loss  of  the 
brandy  in  this  celebrated  case,  cannot  of  course  be  regarded 


1  For  the  same  idea  in  the  case  of  legal  obligation,  see  Y.  B.  29  Ed. 
III.  25. 

'For  instances  see  Bro.  Ab.,  Feffements  al  uses,  54;  Sharrington  v. 
Strotton,  Plowden,  301;  2  Leonard,  30;  1  Croke,  126;  Dyer,  2T2  a, 
note;  Moore,  643.  Whether  the  equitable  principle  of  consideration  was 
at  any  period  applied  in  its  full  extent  to  assumpsit  may  be  doubted. 
That  it  was  necessary  in  30  Eliz.  to  decide  that  affection  was  no  con- 
sideration to  found  an  assumpsit,  shows  at  once  that  the  common  law 
principle  had  been  lost  sight  of,  and  that  the  equitable  principle  had 
been  only  partially  substituted. 


334  VI.     CONTRACTS 

as  an  inducement  to  the  promise;  and  therefore,  although 
it  would  have  fallen  within  the  common  law  limitation  of 
assumpsit,  it  is  no  consideration. " 

Assuming  then  that  the  law  derived  consideration  from 
equity,  the  question  remains:  Whence  did  equity  derive  the 
principle?  It  is  sometimes  answered:  From  the  civil  law. 
If  this  means  that  it  resulted  from  an  adoption  or  adapta- 
tion of  the  Roman  distinction  between  contractus  and  nudum 
pactum,  the  opinion  is  untenable.  The  causce  civiles  which 
turned  pacts  into  contracts  were  incapable  of  generaliza- 
tion, and  even  by  omitting  the  formal  contracts  we  obtain 
only  the  inadequate  idea  of  valuable  consideration.  The 
civil  law  supplies  however  another  application  of  the  term 
causa,  which  is  more  to  the  point.  Money  paid  or  property 
delivered  sine  causa  could  be  reclaimed ;  and  a  promise  made 
sine  causa  ^was^lnvalid.1  This  rule  applied  to  contracts, 
whether  formal  or  not.  Causa  was  not  of  course  restricted 
to  valuable  consideration,  for  this  was  never  essential  to 
a  stipulation,  but  it  included  any  adequate  motive  or  suf- 
ficient reason.  The  rule  rendered  invalid  promises  made 
either  under  a  mistake  (sine  causa  ab  initio)  or  for  a  valu- 
able consideration  which  faile^T^c^Ija^ata^ausa  non 
secuta).  Now  the  Canon  Law  expressly  renounced  the  nitfri- 
buncT  distinction  between  contractus  and  pactum?  and  this 
example  was  followed  very  generally  throughout  Europe. 3 
This  breakdown  of  the  old  theory  would  naturally  call  into 
prominence  the  requirement  of  causa,  as  being  the  only  re- 
maining limitation  upon  the  binding  efficacy  of  agreements ; 
and  that  this  was  actually  the  case  sufficiently  appears  from 
the  following  extract  from  Molina,  a  jurist  of  the  sixteenth 
century.  4  Observant  etiam  Felinus  .  .  .  et  doctores  com- 
muniter,  ut  jure  canonico  ex  pacto  nudo  actio  concedatur, 
qua  paciscens  cogatur  implere  pactum,  necessarian!  esse 
causae  expressionem :  alioquin  reus  non  cogetur  solvere,  nisi 

14  Est  et  haec  species  condictionis,  si  quis  sine  causa  promiserit  vel 
si  solverit  quis  indebitum  .  .  .  Sed  et  si  ob  causam  promisit,  causa 
tamen  secuta  non  est,  dicendum  est  condictionem  locum  habere.'  Di- 
gest, 12,  7,  1. 

8  Deer.  Greg.  i.  35,  1.    Pacta  quantumcunque  nuda  servanda  sunt. 

3  Stair's  Inst.  i.  10,  7. 


61.     S ALMOND:  HISTORY  OF  CONTRACT  335 

actor  causam  sufficienter  probet.  .  .  .  Quo  loco  observa, 
sufficientem  causam  ut  solvere  cogatur  esse  titulum  dona- 
tionis.' 1  Molina  proceeds  to  give  examples  of  the  rule,  to 
identify  it  with  the  rule  of  the  civil  law  already  mentioned, 
and  to  call  attention  to  the  mistake  made  by  some  writers 
in  confounding  causa  in  this  sense  with  the  causa  that  was 
originally  necessary  as  a  vestimentum  pacti.  This  same 
rule  that  a  cause  is  necessary  to  sustain  a  promise  is  still 
recognised  in  its  original  form  by  the  French  law.2  An 
enunciation  of  the  same  principle,  very  significant  with  re- 
gard to  the  English  law,  is  to  be  found  in  Doctor  and  Stu- 
dent. The  Student  knows  nothing  of  consideration,  but 
expounds  the  law  of  contract  exactly  as  it  was  understood 
during  the  reign  of  Henry  VIII.  But  the  Doctor  of  Divinity 
speaks  as  follows :  *  And  of  other  promises  made  to  a  man 
upon  a  certain  consideration,  if  the  promise  be  not  against 
the  law,  as  if  A.  promise  to  give  B.  20Z.  because  he  hath 
made  him  such  a  house,  or  hath  lent  him  such  a  thing,  or 
such  other  like,  I  think  him  bound  to  keep  his  promise.  But 
if  his  promise  be  so  naked  that  there  is  no  manner  of  con- 
sideration why  it  should  be  made,  then  I  think  him  not 
bound  to  perform  it,  for  it  is  to  suppose  that  there  was 
some  error  in  the  making  of  the  promise.  .  .  .  And  in  all 
such  promises  it  must  be  understood  that  he  that  made  the 
promise  intended  to  be  bound  by  it,  for  else  commonly  after 
the  doctors  he  is  not  bound,  unless  he  were  bound  to  it 
before  his  promise:  as  if  a  man  promise  to  give  his  father 
a  gowne  that  hath  need  of  it  to  keep  him  from  cold.  And 
also  such  promises,  if  they  shall  bind,  they  must  be  honest, 
lawful,  and  possible,  and  else  they  are  not  to  be  holden 
in  conscience  though  there  be  a  cause.  And  if  the  promise 
be  good  and  with  a  cause,  though  no  worldly  profit  shall 
grow  thereby  to  him  that  maketh  the  promise,  but  only 
a  spiritual  profit,  as  in  the  case  before  rehearsed  of  a  promise 
made  to  an  University,  to  a  Citie,  to  the  Church,  or  such 
other,  and  with  a  cause  as  to  the  honour  of  God,  there  is 


1  Molina,  De  Justitia,  Disput.  257. 

2  Code  Civ.  1131. 


336  VI.     CONTRACTS 

most  commonly  holden  that  an  action  upon  these  promises 
lieth  in  the  Law  Cannon.' 1 

tf  That  the  principle  so  expounded  by  the  doctor  of  divinity 
is  identical  with  that  which  we  have  already  found  to  exist 
in  the  Canon  Law,  there  can  be  no  doubt.  Is  it  not  almost 
equally  obvious  that  it  is  also  identical  with  the  equitable 

^principle  of  consideration?  In  name  the  two  principles  are 
the  same,  and  in  nature  they  are  practically  indistinguish- 
able, save  that  consideration  is  not  met  with  in  equity  until 
after  the  commencement  of  that  process  of  contraction 
which  finally  reduced  it  to  its  modern  limits.  May  we  not 
conclude  then  that  when  the  Chancellors,  who  till  the  reign 
of  Henry  VIII  were  almost  invariably  ecclesiastics,  sought 
a  basis  on  which  to  found  their  equitable  jurisdiction  in 
contract,  they  adopted  a  principle  lying  ready  to  their 
hands  in  a  system  of  law  with  which  they  were  familiar? 

%l  The  theory  that  consideration  is  a  modification  of  the 
Roman  principle  of  causa,  adopted  by  equity,  and  trans- 
ferred thence  into  the  common  law,  finds  some  support  from 
Mr.  Pollock  in  his  work  on  Contracts,2  but  is  rejected  by  Mr. 
Justice  Holmes,3  who  attempts  to  prove  the  principle  in 
question  to  be  entirely  an  internal  development  of  the  English 
law  of  contract.  The  central  point  of  Mr.  Holmes's  theory 
is  that  the  modern  rule  of  consideration  is  merely  a  modifica- 
tion of  the  ancient  requirement  of  quid  pro  quo  in  the  action 
of  debt.  But  to  this  view  the  objections  seem  almost  insur- 
mountable. It  is  based  on  a  mistaken  view  of  the  original 

4  contents  of  the  idea  of  consideration.  Between  this  idea, 
as  first  understood,  and  quid  pro  quo,  there  is  a  gap  too 
wide  to  be  bridged  by  any  theory  of  development.  '(Further- 
more, quid  pro  quo  was  a  principle  confined  to  the  action 
of  debt,  while  consideration  (as  a  theory  of  the  law  of  con- 
tract) was  found  only  in  assumpsit.  4  Thirdly,  this  latter 
principle  was  well  known  in  the  law  of  property  some  time 
before  it  appears  in  contracts;  it  seems  scarcely  probable 


1  Doctor  and  Student,  ii.  24. 
8  Princ.  of  Contr.,  Appendix,  Note  F. 

'The   Common  Law,  247-288;    Early  English   Equity,   Law   Quart. 
Rev.,  No.  2,  vol.  i.  p.  162  (Essay  No.  41,  Vol.  I  of  this  Collection). 


61.     S ALMOND:  HISTORY  OF  CONTRACT  337 

therefore  that  it  was  derived  from  the  action  of  debt.  Again, 
it  is  alleged  that  the  modification  by  which  quid  pro  quo 
became  consideration  was  the  recognition  of  detriment  to 
the  promisee  as  well  as  benefit  to  the  promisor.  But  in  debt 
this  extension  was  again  and  again  attempted  without  suc- 
cess,1 and  it  is  not  probable  that  it  could  have  succeeded 
in  assumpsit.  Lastly,  the  two  ideas  in  question  lived  on 
independently  in  their  own  spheres,  and  the  clearest  dis- 
tinction was  always  drawn  between  them.  Thus  in  27  Hen. 
VIII  it  is  said :  '  I  understand  that  one  cannot  have  a  writ 
of  debt  except  when  there  is  a  contract;  for  the  defendant 
has  not  quid  pro  quo,  but  the  action  is  founded  solely  on 
the  assumption,  which  sounds  merely  in  covenant.'  2  Again 
in  27  &  28  Eliz. :  '  In  assumpsit  it  is  not  necessary  that 
they  contract  at  the  same  instant,  but  it  suffices  if  there 
be  inducement  enough  to  the  promise,  and  although  it  is 
precedent  it  is  not  material ;  otherwise  in  debt  it  is  requisite 
that  the  benefit  come  to  the  party,  otherwise  for  want  of 
a  quid  pro  quo  debt  does  not  lie.'  3  Again,  as  late  as  4 
Charles  I :  '  There  is  no  contract  between  them  nor  hath  he 
any  quid  pro  quo,  but  he  ought  to  have  had  an  assumpsit.'  4 
Could  two  principles  have  been  kept  so  distinct,  if  one  had 
been  merely  a  modification  of  the  other  permitted  by  the 
laxity  of  the  law  ?  « 

To  the  later  history  of  contract  a  mere  allusion  must 
suffice.  Its  chief  feature  was  the  temporary  though  pro- 
longed disappearance  of  debt  in  favour  of  assumpsit  in 
the  case  of  simple  contracts.  For  the  purpose  of  avoiding 
the  defendant's  wager  of  law,  early  attempts  were  made 
to  bring  assumpsit  where  debt  was  the  appropriate  remedy. 
After  a  struggle  between  the  Court  of  King's  Bench  and 
the  Court  of  Exchequer  Chamber,5  it  was  finally  decided  in 
Slade's  Case  6  that  an  action  on  the  case  would  lie  although 


*Y.  B.  37  Hen.  VI.  8;    Y.  B.  20  Ed.  IV.  3;    1  Croke,  880  (anoma- 
lous) ;   3  Croke,  193. 

8Y.  B.  27  Hen.  VIII.  24. 

8  Dyer,  272  a,  note. 

4  3  Croke,  193. 

6  2  Bendloes,  104;    Moore,  433,  694,  703. 

6  4  Co.  Rep.  91. 


338  VI.     CONTRACTS 

debt  was  available.  The  only  subsequent  change  that  need 
be  mentioned  is  the  final  recognition  of  a  single  limiting 
principle  throughout  the  law  of  contracts  by  the  merger  of 
quid  pro  quo  in  valuable  consideration. 


62.     HISTORY   OF   THE   BENEFICIARY'S   ACTION 
IN    ASSUMPSIT1 

BY  CRAWFORD  DA  WES  HENiNG2 

"  The  true  interest  of  the  topic  of  Procedure  is  derived  from  the  man- 
ner in  which  the  tribunals  have  contrived  from  time  to  time  to  effect 
changes  in  the  substance  of  the  law  itself,  under  cover  of  merely  modi- 
fying the  methods  by  which  it  is  enforced."  —  HOLLAND:  "Elements  of 
Jurisprudence,"  chap.  xv.  page  267  (1888). 

MODERN  English  law,  in  a  familiar  line  of  decisions 
since  the  year  1724,  has  pronounced  against  the  right 
of  a  third  person,  not  a  party  to  a  contract,  to  maintain  an 
action  of  assumpsit  upon  the  contract,  even  though  it  was 
made  for  his  benefit.3 

Upon  examination  of  these  cases,  the  following  questions 
are  presented: 

Is  there  any  substantive  right  by  which  the  beneficiary  of 
a  contract  can  enforce  a  part  from  the  action  of  assumpsit? 

Is  the  denial  of  the  beneficiary's  right  in  the  cases  of  as- 
sumpsit due  to  a  judicial  denial  of  the  existence  of  such  a 
substantive  right;  or  is  the  inability  of  the  beneficiary  to 

JThis  Essay  was  first  published  in  the  American  Law  Register  (now 
the  University  of  Pennsylvania  Law  Review),  Vol.  XLIII,  N.  S.  (LIT, 
O.  S.),  pp.  764-779,  Vol.  XLIV,  N.  S.  (LIU,  O.  S.),  pp.  112-127 
(1904-5) ;  a  continuation,  in  id.  Vol.  XLVII,  O.  S.  (LVI,  N.  S.),  pp. 
73-87  (1908)  is  not  here  reprinted.  Changes  and  additions  have  been 
made  by  the  author  for  the  present  reprint. 

2  Professor  of  Law  in  the  University  of  Pennsylvania.  A.  B.  1887, 
University  of  Pennsylvania,  LL.  B.  1903,  Temple  College. 

Other  Publications:  Leading  Cases  on  the  Fourth  Section  of  the 
Statute  of  Frauds,  1907;  Life  of  Chief  Justice  Doe  of  New  Hampshire 
(in  Lewis'  Great  American  Lawyers),  1908.  Cases  on  the  Simple  Con- 
tract of  Debt  at  the  Common  Law,  1907. 

8  Crow  v.  Rogers,  1  Strange,  592  (1724);  Price  v.  Easton,  4  Barn, 
and  Ad.  433  (1833);  Tweddle  v.  Atkinson,  1  B.  and  S.  393  (1861); 
Empress  Engineering  Co.,  16  Chancery  Div.  125,  129  (1880),  Re  Rother- 
ham  Alum  and  Chemical  Co.,  25  Ch.  Div.  at  page  111  (1883);  Cleaver 
v.  Mutual  Reserve  Fund  Life  Association,  1  Q.  B.  147  (1892). 


340  VI.     CONTRACTS 

recover  due  in  reality  to  certain  technicalities  of  procedure 
or  principles  of  substantive  law  incident  and  peculiar  to  the 
action  of  assumpsit  itself? 

If,  apart  from  assumpsit,  there  is  such  a  substantial  right 
of  a  beneficiary,  what  is  its  basis,  its  scope,  and  its  limita- 
tions, and  in  what  formal  procedure  or  actions  is  it  enforce- 
able? At  the  present  day,  "Whatever  disadvantages  the 
English  law  on  the  question  may  have,  it  has  at  least  the 
merit  of  definiteness.  A  beneficiary  has  no  legal  rights."  l 
That  the  modern  English  judicial  conscience  finds  satisfac- 
tion in  this  conclusion  may  be  seen  from  the  exclamation  of 
Crompton,  J.  :  "  It  would  be  a  monstrous  proposition  to  say 
that  a  person  was  a  party  to  the  contract  for  the  purpose 
of  suing  upon  it  for  his  own  advantage,  and  not  a  party 
to  it  for  the  purpose  of  being  sued."  2  But  why  "  mon- 
strous" if  conformable  to  the  contractors'  intent? 

That  the  modern  English  courts  in  preventing  this  mon- 
strosity believe  they  have  not  sacrificed  any  cherished  Eng- 
lish judicial  principle  appears  from  the  repeated  assurances 
of  the  modern  English  judges  that  the  beneficiary  cannot 
recover  because  he  is  "  a  stranger  to  the  consideration," 
and  because  "  he  is  not  a  party  to  the  contract."  3 

Unfortunately,  for  judicial  uniformity,  the  monstrosity  of 
the  proposition  that  a  person  may  be  entitled  to  sue  on  a 
contract  without  being  himself  liable  to  suit  thereon,  never 
shocked  any  judicial  conscience  in  England  until  1861. 

It  can  be  shown  (conclusively,  I  submit),  that  outside  of 
assumpsit  this  so-called  "  monstrosity  "  has  been  the  law  of 
England  for  five  hundred  years. 

The  line  of  approach  in  investigating  the  common  law 
on  this  subject,  lies  in  challenging  and  demanding  proof  for 
the  propositions  so  often  asserted,  that: 

(1)  No  one  can  recover  on  a  contract  except  the  person 
who  furnishes  the  consideration. 

No  one  can  recover  on  a  contract  except  the  promisee. 


1M  Contracts  for  the  Benefit  of  a  Third  Person,"  by  Samuel  Willis- 
ton,  xv  Harvard  Law  Review,  774,  (1902). 

2  Tweddle  v.  Atkinson,  1   Best  and  Smith,  398   (1861). 

3  Price  v.  Easton,  4  Barn,  and  Ad.  433   (1833)  ;  Thomas  v.  Thomas, 
2  Ad.  &  El.   (N.  S.)   851,  859   (1842). 


62.     HENING:  BENEFICIARY  IN  ASSUMPS1T     341 

We  find  both  these  propositions  asserted  in  the  English 
decisions  in  the  action  of  assumpsit.  That  the  foregoing 
two  propositions  are  invariably  discussed  solely  from  the 
stand-point  of  the  action  of  assumpsit  is  apparent  from  any 
study  of  the  opinions  of  the  leading  text-writers. 

There  is,  however,  no  consensus  of  opinion  among  text- 
writers  with  respect  to  the  truth  of  both  propositions. l  And 

1  Judge  Hare  in  his  work  on  contracts,  p.  146,  says  "  that  the  only- 
person  entitled  to  sue  on  a  contract  is  he  who  furnishes  the  considera- 
tion." He  says: 

"  It  is  a  well-established  rule  of  the  common  law  that  the  right  of 
action  lay  not  with  him  to  whom  the  promise  was  made  and  who  would 
have  been  benefited  if  it  had  been  kept,  but  with  the  party  from  whom 
the  consideration  moved  on  the  faith  of  the  promise  (citing  Patteson, 
J.,  in  Thomas  v.  Thomas).  .  .  .  The  rule  may  be  traced  in  the  reports 
from  the  origin  of  the  action  of  assumpsit  down  to  our  own  times, 
although  it  is  not  infrequently  modified  or  superseded  by  principles 
which  the  common  law  has  derived  from  equity  (citing  Bourne  v. 
Mason,  I  Ventris,  6)." 

Of  course  such  a  rule  eifectually  bars  any  action  by  a  third  party 
brought  to  enforce  a  contract  made  for  his  benefit.  The  reluctance  of 
this  learned  writer  to  admit  that  this  test  should  be  applied  indis- 
criminately to  all  actions  of  the  beneficiary  appears  in  his  concession 
on  page  194,  that  "  The  question  when  a  delivery  to  one  man  for  the 
use  of  another  will  confer  a  right  on  the  latter  is,  nevertheless,  one  of 
the  most  difficult  and  doubtful  known  to  the  law." 

Professor  Langdell  contends  that  no  person  can  enforce  a  contract 
except  the  promisee.  He  says:  (Summary  of  the  Law  of  Contract, 
sec.  62) : 

"  A  binding  promise  vests  in  the  promisee,  and  in  him  alone,  a  right 
to  compel  performance  of  the  promise,  and  it  is  by  virtue  of  this 
fight  that  an  action  is  maintained  upon  the  promise.  In  the  case  of  a 
promise  made  to  one  person  for  the  benefit  of  another,  there  is  no 
doubt  that  the  promisee  can  maintain  an  action,  not  only  in  his  own 
name  but  for  his  own  benefit.  If,  therefore,  the  person  for  whose  benefit 
the  promise  was  made  could  also  sue  on  it,  the  consequence  would  be 
that  the  promisor  would  be  liable  to  two  actions.  In  truth,  a  binding 
promise  to  A  to  pay  $100  to  B  confers  no  right  upon  B  in  law  or 
equity.  It  confers  an  authority  upon  the  promisor  to  pay  the  money  to 
B,  but  that  authority  may  be  revoked  by  A  at  any  moment." 

But  compare  Professor  LangdelFs  statement,  (ii  Harvard  Law  Re- 
view, page  249) : 

"If  money  be  delivered  by  A  to  B  in  order  that  it  may  be  delivered 
by  B  to  C,  or  if  it  be  delivered  by  A  to  B  to  the  use  of  C,  it  has  often 
been  held  that  B  will  be  accountable  to  C." 

Such  a  rule  as  that  laid  down  by  Professor  Langdell  in  his  "Sum- 
mary of  the  Law  of  Contract"  (supra),  if  true,  obviously  defeats  the 
right  of  action  of  the  beneficiary  where  he  is  not  the  promisee.  But 
.equally  obviously  the  two  theories  (the  one  Judge  Hare's  and  the  other 
Professor  LangdelFs),  cannot  both  be  correct.  If  the  only  requisite 
of  a  right  to  enforce  a  contract  is  to  have  furnished  the  consideration, 
then  a  person  may  enforce  a  contract  even  if  he  is  not  the  promisee. 
In  fact,  we  find  Judge  Hare  asserts  the  following  proposition  —  the 
exact  contradictory  of  Professor  Langdell's  —  as  one  of  the  arguments 


342  VI.     CONTRACTS 


there  is  hardly  any  unanimity  of  judicial  opinion  among 
common  law  judges  to-day  upon  any  point  involved  in  the 
subject  of  the  beneficiary. l 

That  various  courts  of  common-law  origin,  professedly 
expounding  and  administering  that  law,  should  reach  not 
only  contrary  conclusions  on  this  problem,  but  conclusions 
Involving  fundamentally  antagonistic  conceptions  of  the  doc- 
trine of  Contract  and  of  Consideration,  provokes  the  inquiry 
whether  the  common  law  on  the  subject  of  the  right  of 
action  of  a  stranger  to  the  contract  has  ever  been  fully  in- 
vestigated, ascertained  and  presented. 

So  far  as  the  question  is  a  legal  and  not  an  equitable 
question,  nearly  all  text-writers  of  the  present  day  on  con- 
tracts, attempt  to  solve  the  problem  of  the  beneficiary's  right 

for  the  contention  that  the  furnishing  of  the  consideration  is  the  sole 
test  of  the  right  of  action:  "If  A  promised  to  pay  B  1,000  pounds  if 
C  would  go  to  Rome,  and  C  took  the  journey,  he  and  not  B  is  regarded 
as  entitled  to  the  reward,  and  to  compel  the  payment  of  it  by  suit.'* 
(Hare  on  Contracts,  page  147).  Leake  interprets  the  doctrine  of  con- 
sideration to  mean  that  although  the  consideration  need  not  be  fur- 
nished directly  by  the  promisee,  yet  if  furnished  by  a  third  party  it 
must  have  been  furnished  at  the  promisee's  request.  (Leake  on  Con- 
tracts, page  430). 

Professor  Williston  admits  that  "The  rule  that  consideration  must 
move  from  the  promisee  is  somewhat  technical,  and  in  a  developed 
system  of  contract  law  there  seems  no  good  reason  why  A  should  not 
be  able  for  a  consideration  received  from  B  to  make  an  effective 
promise  to  C."  ("Contracts  for  the  Benefit  of  a  Third  Person,"  by 
Samuel  Williston,  xv  Harvard  Law  Review,  page  771  (1902)). 

Professor  Williston,  however,  denies  the  tight  of  action  of  the 
beneficiary  on  the  other  ground  —  "The  beneficiary  is  not  a  party  to 
the  contract,  and,  apart  from  some  special  principle  governing  this 
class  of  cases,,  cannot  maintain  an  action."  (Ib.  page  773  (1902)). 

aThe  Supreme  Court  of  the  United  States  has  said  that  "The  right 
of  a  party  to  maintain  assumpsit  on  a  promise  not  under  seal  made  to 
another  for  his  benefit,  although  much  controverted,  is  now  the  pre- 
vailing rule  in  this  country."  (Hendrick  v.  Lindsay,  93  U.  S.  143,  1876). 

The  vagueness  of  this  statement  is  apparent. 

Some  American  States  by  their  judicial  interpretation  of  the  com- 
mon law  have  declared  the  right  to  exist  under  certain  conditions  and 
restrictions.  (Contracts  for  the  Benefit  of  a  Third  Person  by  Samuel 
Williston,  xv,  Harvard  Law  Review,  page  778  (1902)).  But  in  these 
states  the  right  of  action  is  granted  to  the  beneficiary,  in  language 
that  is  unmistakedly  apologetic,  recognizing  the  supposedly  correct 
English  principle  and  limiting  the  American  exceptions  to  certain  cir- 
cumstances supposed  to  be  peculiar.  Of  this  so-called  American  rule 
it  has  been  truly  said  by  Sir  Frederick  Pollock  that  "there  does  not 
seem  to  be  any  general  agreement  as  to  its  reason  or  its  precise  ex- 
tent." (Contracts  (7th  Ed.)  page  215.) 

Other  American  States  are  content  to  follow  English  precedents  of 
the  nineteenth  century. 


6%.     HEN  ING:  BENEFICIARY  IN  ASSUMPSIT     343 

of  action  by  the  aid  of  or  in  conformity  to  the  doctrine  of 
consideration  in  special  assumpsit,  i.  e.,  as  a  question  of  the 
law  and  procedure  in  special  assumpsit.  In  reality,  the  ques- 
tion is  one  of  the  general  substantive  contract  law  of  Eng- 
land and  of  the  States  inheriting  that  law.  In  point  of 
fact,  all  the  decisions  usually  cited  on  the  right  of  action 
of  the  beneficiary  are  decisions  in  actions  of  special  assump- 
sit and,  hence,  these  decisions  turn  on  the  doctrine  of  con- 
sideration, and  are  controlled  and  limited  by  the  judicial 
interpretations  of  that  doctrine. 

The  citations  of  these  assumpsit  decisions  therefore,  proves 
nothing  beyond  the  action  of  assumpsit ;  and  because  by 
the  very  nature  of  such  actions  they  rest  on  the  doctrine  of 
consideration  (which  invariably  requires  that  no  one  who 
has  not  furnished  the  consideration,  or,  at  least,  that  no  one 
who  is  not  the  promisee,  shall  have  the  right  to  maintain 
assumpsit),  these  decisions  are  convincing  to  only  those 
who  regard  contract  and  assumpsit  as  identical  concepts. 

The  real  question  is,  however,  a  much  broader  one.  Is 
there  any  substantive  right  of  action  conferred  by  the  com- 
mon law  of  England  on  the  beneficiary  of  a  contract  inde- 
pendent of  assumpsit  and  therefore  independent  of  the  doc- 
trine of  consideration,  i.  e.,  independent  of  his  having  fur- 
nished the  consideration  and  of  his  being  the  promisee? 
"  An  English  misunderstanding  or  perversion  of  the  common 
law  is  not  necessarily  our  law." 

The  doctrine  of  consideration  was,  of  course,  unheard  of 
in  England  until  the  reigns  of  Henry  VII,  Henry  VIII  and 
Elizabeth,  when  it  came  into  vogue  gradually,  in  the  exten- 
sion of  the  action  on  the  case  to  promises  previously  unen- 
forceable. "  The  name  '  consideration  '  appears  only  about 
the  beginning  of  the  sixteenth  century,  and  we  do  not  know 
by  what  steps  it  became  a  settled  term  of  art."  Outside  of 

bollock  on  Contracts  (7th  ed.),  page  170. 

Professor  Ames  states  that  the  earliest  case  of  bilateral  assumpsit 
he  has  found  is  Pecke  v.  Redman,  1  Dyer,  113  a  (1555). 

Unilateral  assumpsits,  i.  e.,  based  on  actual  detriment  incurred  on 
request  were  of  course,  earlier  to  appear.  Anno  21  H.  vii  i  Keilw. 
77,  78. 

But  these  cases  suffice  to  show  that  the  doctrine  of  consideration 
belongs  to  a  wholly  different  species  of  the  genus  Contracts  than  the 
species  to  which  we  may  apply  the  terms  Accountability  and  debt. 


344  VI.     CONTRACTS 


the  action  on  the  case  and  its  derivative  special  assumpsit, 
it  is  familiar  law  that  the  doctrine  of  consideration  was  never 
recognized  and  had  never  been  heard  of  or  applied. 

But  the  right  of  action  of  the  beneficiary  was  an  estab- 
lished right  long  before  the  doctrine  of  consideration  ex- 
isted. The  right  of  action  of  the  beneficiary  was  previously 
recognized  and  firmly  established  in  the  ancient  actions  of 
account  and  of  debt,  years  before  the  rise  of  the  action  of 
Case  on  "  Promises."  The  doctrine  that  neither  Case  nor 
assumpsit  would  lie  except  for  a  consideration,  and  finally 
the  definition  of  consideration  as  consisting  in  a  detriment 
suffered  by  the  plaintiff  who  must  be  the  promisee,  had 
obviously  no  place  in  the  action  of  debt  where  "  there  was 
no  theory  of  consideration,  and  therefore,  of  course,  no 
limit  to  either  the  action  or  the  contract  based  upon  the 
nature  of  the  consideration  received."1  No  more  was  there 
any  conception  of  "  Consideration  "  ( as  we  now  have  come 
to  accept  the  term)  in  the  action  of  Account. 

The  relation  of  consideration  in  special  assumpsit  to  the 
rights  of  third  parties  will  be  discussed  later.  We  shall 
first  deal  with  account  and  debt,  where  consideration  was 
of  course,  unknown,  and  examine  the  cases  giving  the  bene- 
ficiary a  right  to  sue  in  those  actions. 


I.  THE  ACTIONS  OF  ACCOUNT  AND  OF  DEBT,  AND  THE  RIGHT 
OF  ACTION  OF  THE  BENEFICIARY  IN  EACH 

Before  discussing  the  principles  governing  the  benefici- 
ary's right  of  action  in  Account,  let  us  examine  the  facts  in 
a  number  of  cases  where  the  right  was  recognized. 

In  the  fourteenth  century  the  writ  of  account  was  in 
common  use  wherever  the  plaintiff  had  constituted  the  defend- 
ant either  his  customary  bailiff  or  his  bailiff  pro  Tiac  vice,  to 
sell  goods,  or  his  receiver  to  take  money  from  third  persons. 

This  use  of  the  writ  of  account  is  at  least  six  hundred 
years  old. 2  The  plaintiff  counted  upon  the  fact  that  he  had 

1  Holmes'  Common  Law,  page  271. 

2  Selden  Society  Year  Books  Series,  vol.  II,  p.  34.     Reprinting  Y.  B. 
Q  Ed.  II,  1308-9,  118  Anon.     Ryvere  v.  Frere,  Ib.  Vol.  Ill,  p.  126,   (3 
Ed.  II).     Y.  B.  44  Ed.  Ill,  F.  1  PL  2,  (HiL).     Pollock  and  Maitland's 


€8.     HEN  ING:  BENEFICIARY  IN  ASSUMPSIT     345 

bailed  merchandise  to  the  defendant  to  sell,  that  the  defend- 
ant had  sold  the  goods  and  had  received  divers  sums  of 
money  at  the  hands  of  divers  mentioned  persons,  and  a  count 
was  useless  if  it  failed  to  mention  definitely  by  whose  hands 
the  defendant  received  the  monies,  unless  he  was  the  plain- 
tiff's duly  constituted  bailiff.1 

From  this  use  of  the  writ  of  account  by  the  lord  or  master 
against  the  steward  or  servant  2  is  to  be  traced  its  use  by 
the  beneficiary. 

The  customary  bailiff's  receipt  of  the  property  and  monies 
were  received  under  a  prior  authority  from  the  lord  to  act 
as  bailiff  or  to  receive.  Suppose,  however,  a  stranger  with- 
out previous  authority  from  the  lord  received  his  rents  from 
the  hands  of  his  tenants,  they  directing  payment  to  be  made 
to  their  lord?  The  common  law  at  length  impressed  upon 
this  transaction  the  fiction  of  the  lord  and  bailiff  and  held 

History  of  English  Law,  Vol.  II,  p.  219,  mentions  the  earliest  known 
action  of  account  to  be  of  the  year  1232. 

Bracton's  Note  Book,  pi.  859. 

In  Maitland,  "  Register  of  Original  Writs,"  iii  Harvard  Law  Review, 
173,  will  be  found  a  reference  to  the  writ  of  Account,  giving  that  tech- 
nical language  which  adhered  to  the  writ  to  the  latest  day:  "Account: 
justificies  talem  quod  .  .  .  reddat  tali  racionabilem  compotum  suum 
de  tempore  quo  fuit  ballivus  suus,"  etc. 

An  illustration  of  an  old  manorial  account  will  be  found  in  the 
"Yearly  Account  of  Manor  of  Cuxam,"  A.  D.  1316-1317,  reprinted  in 
"  English  Manorial  Documents,  edited  by  Edward  P.  Cheyney,  A.  M., 
published  by  the  Department  of  History  of  the  University  of  Pennsyl- 
vania." 

1Y.  B.  xliii  Ed.  Ill  F.  21  PI.  11. 

Y.  B.  xlvi  E.  III.  fol.  3  pi.  6;  (Fitz.  Accompt.  38). 

Y.  B.  xlvi  E.  III.  fol.  9  pi.  4;   (Fitz.  Accompt.  39). 

2  In  1267  the  statute  of  Marlbridge  (52  Hen.  III.  c.  23)  gave  the 
lord  a  writ  of  attachment  against  the  body  of  his  bailiff  who  had  no 
lands  or  tenements  whereby  he  could  be  distrained.  The  statute  of 
Westminster  II  (13  Ed.  I.  c.  11)  provided  that  the  lord  or  master  could 
assign  auditors  before  whom  the  steward,  bailiff  or  servant  must 
account. 

"These  statutes  sanctioned  a  procedure  against  accountants  which 
was  in  that  age  a  procedure  of  exceptional  rigor.  We  gather  that  the 
accountants  in  question  were  for  the  most  part  '  bailiffs '  in  the  some- 
what narrow  sense  that  this  word  commonly  bore,  manorial  bailiffs. 
In  Edward  I's  day  the  action  was  being  used  in  a  few  other  cases;  it 
had  been  given  by  statute  against  the  guardian  in  socage  and  we  find 
it  can  be  used  among  traders  who  have  joined  in  a  commercial  adven- 
ture; the  trade  of  the  Italian  bankers  was  being  carried  on  by  large 
'societies'  and  Englishmen  were  beginning  to  learn  a  little  about  part- 
nership. Throughout  the  fourteenth  and  fifteenth  centuries  the  action 
was  frequent  enough,  as  the  Year  Books  and  Abridgments  show."  — 
Pollock  and  Maitland's  History  of  English  Law,  Vol.  ii.  p.  219  (1895). 


346  VI.     CONTRACTS 

the  bailee  accountable  to  the  beneficiary.  In  1368  (41  Ed. 
Ill)  in  an  action  of  account  involving  another  point,  and 
the  issue  being  whether  account  or  debt  would  lie,  Cavendish  1 
(then  Sergeant)  argued:  "If  I  bail  certain  moneys  to  you 
to  bail  to  John,  he  shall  have  writ  of  account  because  the 
property  is  in  him  immediately  when  you  receive  them  by 
my  hand,  and  he  cannot  have  account  by  writ  of  debt."  2 
This  assertion  of  Cavendish  was  unchallenged  and  he  speaks 
of  John's  right  to  an  account  as  familiar  law. 

But  this  same  year  that  first  of  the  abridgers  of  the  Com- 
mon law,  Nicholas  Statham  (or  perhaps  we  should  say, 
Baron  Statham)  3  queried,  "  Whether  he  to  whom  the  bail- 
ment ought  to  have  been  made  shall  have  action  of  ac- 
count." 4 

In  Michaelmas  1374,  Y.  B.,  47  Ed.  Ill,  Fol.  16,  pi.  25, 
such  an  action  was  brought  and  the  defendant  pleaded  that 
the  person  at  whose  hands  the  alleged  receipt  was  had,  was 
a  co-monk  with  the  plaintiff,  the  Abbot  of  Wanerle,  but 
was  not  named  as  co-monk.  This  defence  was  allowed  to  be 
made,  and  this  judgment  points  to  the  conclusion  that  the 
action  of  account  was  then  clearly  maintainable,  unless  there 
was  a  plea  filed  good  in  law  to  bar  this  action  of  account, 
but  that  otherwise,  this  declaration  was  good.  6 

Flowing  from  out  this  marshland  the  stream  almost  im- 
mediately appears,  running  clear,  distinct,  in  a  fixed  course 
between  well  defined  banks.  As  the  following  decision  of 

1  See  Foss's  Lives,  p.  159,  John  de  Cavendish. 
2Y.  B.  41  E.  III.  Fol.  10.  pi.  5  (1368). 

3  "Statham,  Nicholas,  was  elected  reader  of  Lincoln's  Inn  in  Lent 
1471,  II  Edward  IV.  (Dugdale's  Orig.  249)  and  received  on  October 

30,  1467,  a  patent  for  the  grant  of  the  office  of  second  baron  of  the 
Exchequer.     As   Statham's  name  is  never  mentioned   afterwards,  it  is 
uncertain  whether  he  ever  filled  the  office. 

"  Although  he  never  once  is  mentioned  in  the  Year  Books,  an  abridg- 
ment of  the  cases  reported  in  them  to  the  end  of  the  reign  of  Henry 
VI.,  being  the  first  attempt  at  a  work  of  that  nature,  goes  under  his 
name."  —  Foss'  Lives  of  the  Justices,  p.  630. 

•Statham  Abr.  Ace.  5,  in  abridging  the  case  Y.  B.  41  Ed.  III.  fol. 

31,  pi.  37.     But  Statham  nowhere  under  the  title   Account   cites   the 
Y.  B.  2  R.  II   (above  next  mentioned  in  the  text)   owing  doubtless  ta 
the  fact  that  he  had  no  access  to  the  Ms.  from  which  Fitzherbert  quoted. 

"The  Abbot  of  Wanerle  brings  writ  of  Account  against  a  man  a* 
receiver  of  his  monies,  and  counts  how  he  was  his  receiver  by  the  hands 
of  such  an  one." 


M.     HENING:  BENEFICIARY  IN  ASSUMPSIT     347 

1379  is  the  earliest  now  accessible  to  the  writer  and  prob- 
ably one  of  the  earliest  that  can  be  found,  the  full  report  of 
it  by  Fitzherbert1  is  reprinted.  In  the  Common  Pleas: 

"  Account  against  one  J.  D.  and  counts  that  he  received 
of  him  ten  marks  to  bargain  by  the  hand  of  one  Rauffe  Bar- 
nerde  to  profit  and  merchandize. 

"  Clopton.  We  say  that  for  certain  business  which  the 
town  of  B.  had  to  transact  with  the  plaintiff,  the  people  of 
the  town  sent  to  us  ten  marks  by  the  said  R.  B.  by  whose 
hands,  &c.,  to  carry  to  him  who  is  now  plaintiff,  whereupon 
we  come  to  him  who  is  now  plaintiff  and  to  carry  the  money 
to  him  as  messenger  and  you  see  here  is  the  money  taken, 
absque  hoc  that  we  were  his  receiver  of  this  money  in  another 
manner.  Judgment  if  we  ought  to  account,  &c. 

"  Hols.  And  we  (ask)  judgment,  &c.,  since  you  have 
admitted  the  receipt  and  we  pray  for  an  account  and  dam- 
ages for  the  detention,  &c. 

"  Bel.2  It  is  positive  law  that  a  man  shall  not  have  dam- 
ages in  a  writ  of  account,  and  of  the  balance  he  has  admitted 
by  his  reply  that  he  was  only  a  messenger  wherefore  he  was 
not  accountable  by  the  law  in  respect  of  any  profit  of  this 
in  so  much  as  he  has  made  tender  of  the  money  and  still  by 
the  law  he  cannot  have  any  other  action  except  by  writ  of 
account  to  recover  the  money  because  the  receipt  was  not 
for  the  purpose  of  merchandizing  but  as  messenger  he  re- 
ceived the  money;  but  if  the  receipt  had  been  to  profit  and 
merchandize,  the  plaintiff  would  stand  as  well  for  the  loss 
as  for  the  gain.  Wherefore  I  put  this  case  that  my  bailiff 
of  my  manor  receives  my  rents  of  my  lands  and  retains  the 
money  in  his  hands  for  two  or  three  years,  I  shall  have  no 
other  remedy  except  by  writ  of  account  and  in  this  suit  I 
shall  have  nothing  except  the  money  which  he  received,  and 
he  shall  account  for  no  profit  coming  from  it  during  the 
same  time  because  he  has  no  authority  to  put  out  the  money 
in  merchandizing  either  to  gain  or  to  lose  wherefore  will  you 
liave  the  money  or  not? 

1  Easter   Term,   2   Rich.    2,   Reported   in   Fitzherbert's    Abridgment, 
Title  Accompt.  pi.  45. 

2  Robert   de   Bealknap,  Chief  Justice   of  the   Common   Pleas,   1374- 
1387. 


348  VI.     CONTRACTS 

"  Persey. l  If  I  am  receiver  of  your  monies  &c.  to  mer- 
chandize with  and  I  retain  them  in  my  hand  without  putting 
them  to  merchandize  so  that  I  do  not  lose  or  gain  any- 
thing shall  I  not  be  obliged  to  account  for  the  profits  of 
them  ? 

"  Belk.  Yes,  certainly  you  can  show  on  the  account  that 
you  could  have  put  the  monies  to  merchandize  and  profit 
for  us  and  if  you  cannot  be  excused  in  respect  of  it  by  oath 
or  in  some  other  way,  you  will  be  charged  with  reasonable 
profit  &c.  quod. 

"  Skipwth. 2  That  is  agreed  because  he  received  the 
money  to  put  them  to  merchandize  but  not  so  here  because  he 
never  had  authority  to  put  them  out  of  his  hand. 

"  Belk.  If  I  am  debtor  to  Sir  Henry  Persey  in  20  pounds 
and  I  bail  the  money  to  J.  Holt  to  pay  it  to  him,  if  J.  Holt 
does  not  pay  the  money  to  him  he  shall  have  action  of  account 
against  him  and  no  other  action,  but  by  this  action,  he 
shall  have  only  the  same  money  though  he  has  detained 
it  for  ten  years.  Quod  fuit  concessum,  and  then 

"  Belk  said :  take  the  money,  because  you  shall  have  no 
other  answer  for  us  and  it  shall  be  entered  upon  the  record 
that  you  have  received  them  and  neither  of  you  shall  be 
amerced,  wherefore  the  defendant  comes  the  first  day  and 
the  plaintiff  shall  have  good  action,  and  so  it  was  entered, 
&c." 

In  1405  (6  Hen.  IV,)  in  the  Common  Pleas,  debt  was 
brought  to  recover  40  s.  delivered  to  the  defendant  by  the 
lessee  of  a  manor  to  pay  to  the  plaintiff.  It  was  held  that 
the  proper  remedy  was  not  debt  because  "  there  is  no  con- 
tract between  you."  Account  would  have  been  proper  had 
there  not  been  a  frank  tenement.  Hence  as  a  writ  of  annuity 
was  the  only  remedy  the  plaintiff  took  nothing  by  his  writ 
of  Debt. 

But  Hankford,  Justice,  putting  his  decision  on  the  ground 
that  not  debt  but  account  would  lie,  made  the  positive  and 
unqualified  assertion  that  "  if  a  man  deliver  certain  monies 
to  you  to  pay  to  me,  I  shall  have  action  of  account  against 

1  Henry  de  Percy,  Justice  of  the  Common  Pleas,  1377-1380. 
'William  Skipwith,  Justice  of  the  Common  Pleas,  1376-1388. 


62.     HENING:  BENEFICIARY  IN  ASSUMPSIT     349 

you  and  not  writ  of  debt  because  there  is  no  contract  between 
you."  J 

Account  is  the  well  recognized  remedy  of  the  beneficiary 
throughout  the  fifteenth  century,2  and  continued  to  be  so 
employed  in  the  sixteenth  century. 

In  1458,  (36  Hen.  VI),  Wangford's  language  (argu- 
endo),  shows  unmistakably  not  only  that  the  beneficiary  had 
a  right  of  action  in  account  where  there  had  been  a  prior 
appointment  of  the  defendant,  but  that  the  old  distinction 
between  debt  and  account  to  enforce  this  right  was  becoming 
obliterated :  "  Sir,  I  grant  willingly  that  this  is  a  good  plea ; 
and  the  reason  is  because  when  a  man  pays  to  another  certain 
money  by  my  commandment  to  my  '  oeps  '  3  if  he  who  receives 
this  money  is  unwilling  to  pay  me,  I  shall  have  a  good  writ 
of  debt  or  account  against  him,  and  in  that  way  I  will  have 
my  money."  4 

In  1476  (15  Ed.  IV),  an  Abbot  brought  a  writ  of  account 
against  a  man  alleging  that  he  had  received  100Z.  of  A, 
predecessor  of  the  same  Abbot,  from  the  hands  of  one  D  and 
C,  to  render  an  account.  The  defendant  in  vain  objected, 
(1)  that  the  plaintiff  should  have  alleged  that  the  goods 
belonged  to  the  house  and  not  to  A,  (2)  that  the  receipt 
was  from  the  hands  of  a  co-monk,  and  that  such  a  receipt 
was  like  a  receipt  from  the  hands  of  the  plaintiff's  wife  and 
that  the  writ  in  such  case,  abated. 

Brian : 5  "  That  is  not  so,  for  the  writ  is  good  but  in  such 
a  case  as  you  speak  of,  a  receipt  by  the  hands  of  the  wife, 
the  defendant  shall  have  his  law  .  .  .  wherefore  answer  to 
this,  for  the  writ  is  good  enough." 

In  1479  (18  Ed.  IV)  the  existence  of  an  alternative  rem- 
edy for  the  beneficiary,  by  writ  of  Debt,  or  by  writ  of  Ac- 
count, is  mooted.  7  Counsel,  arguendo  that  Case  was  alter- 

*Y.  B.  vi  Hen.  IV.  F.  7,  pi.  33,  (Hil). 
8Y.  B.  1  H.  V.  Fol.  11,  PL  21  (1413). 

Person's  Case,  Y.  B.  x  Ed.  IV.  f.  5,  pi.  10,  con.  to  folio  8,  pi.  21 
(1471). 

8  See  post,  p.  364,  in  this  paper  for  meaning  of  this  word. 

«Y.  B.  36  Hen.  VI.  Fol.  8,  pi.  5  (at  bottom  of  9). 

6  Chief  Justice  of  the  Common  Pleas,  1471-1500. 

«Y.  B.  xv  Ed.  IV.  fol.  16,  pi.  2. 

'Y.  B.  18  Ed.  IV.  Fol.  23,  pi.  5  (1479). 


350  VI.     CONTRACTS 

native  with  Detinue  proposed  the  following  analogy :  "  As 
if  I  deliver  20  pounds  to  Catesby  to  deliver  to  Pigot  he  can 
elect  to  have  writ  of  Account  against  Catesby  or  writ  of 
Debt." 

But  Brian,1  holding  that  in  the  case  in  judgment,  Detinue 
only  would  lie,  counter-argued,  "  And  as  to  what  is  said  that 
he  shall  have  action  of  Debt  or  of  Account,  I  say  that  he 
shall  have  action  of  Account  and  not  action  of  Debt,  upon 
what  thing  shall  his  action  of  Debt  be  founded?  Not  upon 
a  contract,  nor  upon  a  sale,  nor  upon  a  loan  can  he  declare." 

In  1506  (21  Hen.  VII)  Frowike,  C.  J.  2  remarked  in  a 
dictum:  "  The  stranger  has  not  other  remedy  except  action 
of  account."  3 

The  motive  which  impelled  the  beneficiary  to  seek  redress 
by  the  writ  of  debt  rather  than  by  the  writ  of  account,  is 
quite  plain.  The  plaintiff  in  account  was  compelled  to  un- 
dergo the  delay  of  two  distinct  trials,  the  first  before  a  jury 
to  determine  merely  his  right  to  an  accounting,  the  judgment 
for  the  plaintiff  being  that  the  defendant  do  account,  (quod 
computet),  and  the  second  trial  being  the  accounting  itself 
before  the  court-appointed  auditors.  In  the  writ  of  Debt, 
on  the  contrary,  the  plaintiff,  if  successful  in  establishing 
the  defendant  to  be  his  debtor,  was  entitled  to  judgment  and 
immediate  execution,  even  in  the  case  of  default.  Moreover, 
the  fixing  of  any  liability  upon  a  receiver  at  the  hearing 
before  the  auditors  was  always  contingent  upon  his  not  hav- 
ing been  robbed,  or  not  having  lost  the  property  without  his 
own  fault,  &c.  &c.  4  Once  establish,  however,  that  the  de- 
fendant is  not  merely  your  receiver  but  your  debtor,  and  his 
liability  is  absolute. 

When  the  attempt  was  first  made  there  were  manifest  ob- 
stacles to  the  employment  of  the  writ  of  Debt  by  the  bene- 
ficiary, though  admittedly  an  action  of  Account  would  lie 
where  there  had  been  a  bailment  of  money  or  chattels  to  the 
defendant  upon  the  latter's  promise  to  the  bailor  to  pay  the 

1  Chief  Justice  of  the  Common  Pleas,  1471  to  1500. 
'Thomas  Frowyk,  Chief  Justice  of  the  Common  Pleas,  1502-1506. 
8  Anonymous,  Keilwey,  77  a,  77  b.  PI.  25. 

4  See  American  Law  Register,  Vol.  56,  Old  Series,  (47,  New  Series), 
(University  of  Pennsylvania  Law  Review)  page  74,  note  2. 


6®.     HEN  ING:  BENEFICIARY  IN  ASSUMPSIT     351 

plaintiff  a  sum  certain.  There  was  no  privity  between  plain- 
tiff and  the  defendant.1  The  argument  at  first  seemed  un- 
answerable :  "  there  is  no  contract  between  you."  The  de- 
fendant being  a  receiver,  was  accountable,  but  not  being  a 
debtor  how  could  he  be  liable  in  the  writ  of  Debt? 

The  moral  pressure  of  the  plaintiff-accountee,  seeking  to 
recover  by  writ  of  debt,  finally  forced  the  courts  to  treat  a 
receiver  as  a  debtor.  The  successful  argument  was  that  if 
the  plaintiff  showed  a  demand  upon  the  defendant  for  an 
account  and  the  latter  refused  or  failed  to  render  an  account 
he  had  presumably  converted  to  his  own  benefit,  all  the  prop- 
erty bailed  and  hence  had  made  himself  the  plaintiff's  debtor. 2 

Long  prior  to  1573  the  alternative  remedy  of  the  bene- 
ficiary by  writ  of  debt  was  clearly  established.  Sir  Robert 
Brooke,  who  sat  as  Chief  Justice  of  the  Common  Pleas  from 
1554  to  1558,  states  in  his  "  Graunde  Abridgment  "  3  pub- 
lished in  1573,  that  "  where  ten  pounds  is  paid  to  W.  N.  to 
my  use  I  shall  have  action  or  Debt  or  of  Account  against 
W.  N."  Brooke  cites  a  precedent  then  over  a  hundred  years 
old  —  the  above  mentioned  Year  Book,  36  H.  6.  f .  8,  pi.  5. 
And  in  the  last  year  of  the  reign  of  Elizabeth  there  is  this 
dictum,  if  not  judgment,  of  the  Queen's  Bench:  "  adjudged, 
although  no  contract  is  between  the  parties,  yet  when  money 

^ee  Brian,  C.  J.'s  opinion  supra  in  Y.  B.  18  Ed.  IV.  Fol.  23,  pi.  5. 

'Professor  Langdell  has  thus  explained  the  step  by  which  a  receiver 
to  account  could  be  made  a  debtor  in  II  H.  L.  R.  253. 

See  American  Law  Register,  Vol.  56,  Old  Series  (47,  New  Series), 
(University  of  Pennsylvania  Law  Review)  pages  74,  75,  notes  4,  5. 

RastelPs  Entries,  p.  159,  (London,  1670),  contains  two  Counts  in 
Debt  by  the  beneficiary  of  which  the  following  is  a  translation  of  the 
first:  — 

"Debt  upon  bailment  by  another  to  bail  to  the  plaintiff.  T.  G.  in 
mercy  for  several  defaults,  etc.,  the  same  T.  was  summoned  to  reply 
to  J.  N.  of  a  plea  that  he  render  to  him  40  s.  which  he  owed  him  and 
wrongfully  detains,  etc.,  and,  thereupon  the  same  J.  by  his  attorney, 
R.  L.,  says  that  whereas  a  certain  P.  R.,  the  last  day  of  January  of 
the  thirty-first  year  of  the  reign  of  the  present  Lord  the  king,  at  B. 
had  delivered  to  T.  G.  aforesaid  40  s.  to  pay  and  deliver  to  the  same 
J.  N.  whenever  the  said  T.  G.  should  be  required  by  the  said  J;  never- 
theless, T.  G.,  though  often  requested,  the  said  40  s.  to  the  said  T.  G., 
had  not  yet  given  but  refused  to  deliver  them  and  still  refuses,  whereby 
he  says  that  he  is  injured  and  has  damage  to  the  value  of  four  marks. 
And  thereupon  he  brings  his  suit,  etc. 

3Dette,  129:  "Debt  by  Wange  &  Bittinge  where  10  pounds  is  paid 
to  W.  N.  to  my  use  I  shall  have  action  of  debt  or  of  account  against 
W.  N.  and  this  agrees  with  an  old  book  of  entries  of  pleas." 


352  VI.     CONTRACTS 

or  goods  are  delivered  upon  consideration  to  the  use  of  A, 
A  may  have  debt  for  them."  As  in  the  action  of  Account 
there  was  no  wager  of  law  where  the  plaintiff  counted  that 
the  defendant  had  received  the  money  or  goods  at  the  hands 
of  a  stranger ; 2  neither  did  that  mediaeval  mode  of  trial  em- 
barrass the  plaintiff  accountee,  who,  by  establishing  a  de- 
mand and  default  thus  converted  his  accountant  or  receiver 
into  his  debtor.3 

In  1587,  in  the  Queen's  Bench,  in  30  Eliz.,  in  an  action 
of  account,  Andrews  et  ux.  and  one  Cocket  declared  against 
Robsert  that  he,  Robsert,  on  20  Aug.,  10  Eliz.,  was  the  re- 
ceiver of  the  money  of  the  said  Cocket  and  Ann,  the  wife  of 
the  plaintiff  Andrews. 

"  It  was  found  by  special  verdict  that  the  10  Aug.,  10 
Eliz.,  one  M  gave  the  said  100  pounds  for  the  relief  of 
the  said  Cocket  and  Ann  and  delivered  the  same  to  the  said 

1  Whorewood  v.  Shaw,  Yelverton,  p.  25,  S.  C.  Moore  667,  where  the 
action  appears  to  be  upon  a  specialty. 

2 "  In  an  action  of  Account  against  a  Receiver  upon  a  receipt  of 
money  by  the  hand  of  another  person  for  account  render  (unless  it  be 
by  the  hands  of  his  wife  or  his  co-monk)  the  defendant  shall  not  wage 
his  law  because  the  receipt  is  the  ground  of  the  action,  which  lieth  not 
in  privity  between  the  plaintiff  and  defendant,  but  in  the  notice  of  a 
third  person,  and  such  a  receipt  is  traversable."  Coke  Inst.  p.  295, 
Title  of  Releases.  Lib.  HI,  Chap,  viii,  Sec.  514  Ley  Gager. 

Coke's  statement  is  supported  by  Y.  B.  XV  Ed.  iv.  fol.  16,  pi.  2; 
Y.  B.  38  Hen.  vi,  Fol.  9,  pi.  11.  Y.  B.  47  Ed.  Ill,  Fol.  16,  pi.  25.  Y.  B. 
xviii  H.  viii  F.  3,  pi.  15. 

To  the  same  effect  see  Brooke,  Ley  Gager,  1.,  54. 

Illustrations  where  there  were  accordingly  jury  trials  in  the  case  of 
accountants  who  had  received  money  or  other  property  at  the  hands 
of  a  stranger,  are: 

Huntley  v.  Fraunshane,  Coke's  Entries,  p.  47;  S.  C.  Dyer,  Folio 
183,  pi.  (60);  Cocket  v.  Robsert,  1  Lutwyche,  p.  47,  Title  "Account"; 
Tresham  v.  Ford,  Croke's  Eliz.  830  (1601). 

Saunders,  arguendo  in  Hodsden  v.  Harridge,  2  Saund.  65  (21  &  22 
Car.  II)  said:  "And  this  case  may  be  compared  to  the  case  of  an 
action  of  account,  where  if  the  plaintiff  declare  against  the  defendant 
on  a  receipt  by  other  hands,  the  defendant  shall  be  ousted  of  his  law, 
on  account  of  the  presumption  of  law  that  the  country  had  notice  of  it." 

3  After  Slade's  Case  the  decisions  in  Indebitatus  Assumpsit  in  favor 
of  the  beneficiary  eliminated  any  such  mode  of  trial  even  if  it  was  ever 
available  to  the  plaintiff's  accountant  when  charged  in  Debt  as  debtor 
for  money  or  goods  bailed  by  a  third  person  for  plaintiff's  benefit  and 
converted  to  the  defendant's  use.  The  cases  found  by  the  writer  where 
Debt  was  brought  by  the  beneficiary  are  not  explicit  as  to  the  denial  of 
Ley  Gager  though  such  was  probably  the  rule. 

In  Y.  B.  38  H.  VI.  fol.  5.  pi.  14,  in  a  somewhat  analogous  situation 
(Debt  on  a  balance  found  by  auditors  appointed  by  the  plaintiff)  two 
judges  of  the  King's  Bench  thought  there  ought  to  be  no  Ley  Gager. 


68.     HEN  ING:  BENEFICIARY  IN  ASSUMPSIT     353 

Wase,  then  his  servant,  to  the  intent  he  should  deliver  it  to 
the  said  Robsert  for  the  relief  of  the  said  Ann  and  Cocket; 
and  that  he,  the  said  Wase,  did  deliver  it  to  the  said  Robsert 
for  the  relief  of  the  said  Ann  and  Cocket,  according  to  the 
said  intent." 

.  .  .  "It  was  adjudged  he  shall  be  said  to  be  their  re- 
ceiver, and  that  he  shall  account  with  the  said  then  plaintiffs 
for  the  said  100  pounds."  1 

The  end  of  the  reign  of  Elizabeth  which  is  substantially 
the  date  of  Slade's  Case,2  will  afford  for  many  reasons  a  con- 
venient stopping  place  for  retrospection.  The  cases  of  the 
Stuart  period  and  in  fact  of  all  successive  reigns,  can  be 
understood  only  in  the  light  of  Slade's  Case.3 

The  principles  underlying  the  substantive  right  of  the 
beneficiary  to  bring  an  action  of  debt  or  an  action  of  account 
at  common  law  may  now  be  summarized  from  the  preceding 
and  other  cases. 

First,  however,  the  phraseology  of  mediaeval  law  must  be 

1  The  entire  Record  of  this  case  is  given  in  Andrews  et  ux.  &  Cocket 
v.  Robsert,  1  Lutwyche,  p.  47,  title  Account.     The  following  is  a  trans- 
lation of  the  pleadings: 

Tho.  Andrews  &  Anne  Wife,  &  Arthur  Cocket  v.  Arthur  Robsert. 

Arthur  Robsert  was  summoned  to  answer  unto  Thomas  Andrews 
and  to  Anne  his  wife  and  to  Arthur  Cocket,  Gentleman,  in  a  plea  that 
he  render  unto  them  his  reasonable  account  of  the  time  in  which  he  was 
receiver  of  the  said  Anne  and  Arthur,  etc.  And  then  the  same  Thomas 
is  his  proper  person  and  the  aforesaid  Anne  and  the  aforesaid  Thomas 
C.  by  the  same  T.  his  attorney  say  that  whereas  the  aforesaid  Arthur 
Robsert  on  the  day  &c.  year  &c.  at  F.  in  the  County  aforesaid  had  re- 
ceived of  the  monies  of  the  said  Anne  and  Arthur  Cocket  when  the  said 
Anne  was  single,  to  wit  by  the  hands  of  John  Wase,  Gent.,  £100  to  ac- 
count to  the  same  Anne  and  Arthur  Cocket  when  he  should  be  requested 
to  render  the  same  thereunto,  nevertheless  the  same  Arthur  Robsert 
though  often  requested  his  reasonable  account  aforesaid  to  the  said 
Anne  and  Arthur  Cocket,  while  the  said  Anne  was  sole  or  to  the  said 
Thomas,  Anne  and  Arthur  Cocket  after  the  nuptials  celebrated  between 
them,  did  not  render,  but  he  refused  to  render  it  to  them  and  still  re- 
fuses, wherefore,  &c. 

And  the  aforesaid  Arthur  Robsert  by  W.  C.  his  attorney  comes 
and  defends  the  force  and  injury  whereof,  &c.  And  he  says  that  he 
never  was  his  receiver  of  the  aforesaid  £100  nor  of  any  penny  thereof 
by  the  hand  of  the  aforesaid  John  Wase  to  account  thereof  to  the 
aforesaid  Anne  and  Arthur  Cocket  when  he  should  be  requested  to 
render  an  account  as  the  aforesaid  Thomas  and  Anne  and  Arthur 
Cocket  have  above  declared  against  him.  And  of  this  &c. 

2  4  Rep.  927  (1602). 

3  The  cases  of  the  seventeenth  century  have  been  collected  and  dis- 
cussed by  the  writer  in  American  Law  Register,  Vol.  56,  Old  Series, 
(47  New  Series),  (University  of  Pennsylvania  Law  Review,  page  73). 


354  VI.     CONTRACTS 

considered;  for  the  mediaeval  lawyer  had  a  legal  vocabulary 
of  his  own,  and  unless  we  understand  his  terms  we  cannot 
understand  the  substantive  rights  which  his  law  recognized. 
"  The  word  contract  was  used  in  the  time  of  the  Year  Books 
in  a  much  narrower  sense  than  that  of  to-day.  It  was  applied 
only  to  those  transactions  where  the  duty  arose  from  the 
receipt  of  a  quid  pro  quo,  e.  g.,  a  sale  or  loan.  In  other 
words,  contract  meant  that  which  we  now  mean  by  '  real  con- 
tract.' What  we  now  call  the  formal  or  specialty  contract 
was  anciently  described  as  a  grant,  and  obligation  a  cove- 
nant, but  not  as  a  contract."  1 

The  rule  was  clearly  this,  that  a  third  person  could  recover 
in  the  action  of  Account  against  a  defendant,  notwithstand- 
ing there  was  no  "  contract  "  between  them.  Taking  the 
word  "  contract  "  in  its  true  mediaeval  sense  of  a  debt,  as 
used  in  the  Year  Books  we  immediately  perceive  that  the 
plaintiff  in  Account  and  Debt  was  not  required  to  have  fur- 
nished the  property  or  thing  bailed. 

The  rule  is  equally  plain  that  the  plaintiff  in  Account  and 
Debt  was  not  required  to  be  privy  to  the  "  contract  "  or, 
as  we  would  now  say,  "  the  promisee." 

The  right  of  action  of  the  beneficiary  in  Account  should 
be  considered  in  further  detail.  Historically,  this  remedy 
of  the  beneficiary  antedates  his  action  of  Debt,  doubtless  be- 
cause in  account  there  was  never  required  to  be  a  "  contract  " 
between  the  plaintiff  and  the  defendant. 

"  A  receiver  is  one  who  receives  money  belonging  to  an- 
other for  the  sole  purpose  of  keeping  it  safely  and  paying  it 
over  to  its  owner."  2 

No  one  could  be  your  receiver  unless  he  had  received 
money.  The  receipt  of  chattels  when  the  obligation  was  to 
sell  them  and  convert  them  into  money  constituted  the  de- 
fendant not  a  receiver,  but  a  bailee,  who  was  also  liable  in 
Account.3 

luParol  Contracts  Prior  to  Assumpsit,"  by  James  Barr  Ames,  viii. 
Harvard  Law  Review,  page  253,  note  3;  Essay  No.  60,  in  this  Collection. 

2Langdell:  "A  Brief  Survey  of  Equity  Jurisdiction,"  ii  Harvard 
Law  Review,  page  244  (1889). 

3  Langdell,  "  A  Brief  Survey  of  Equity  Jurisdiction,"  ii  Harvard 
Law  Review,  page  244  (1889).  See  46  E.  3.  f.  3,  pi.  6. 


€8.     HEN  ING:  BENEFICIARY  IN  ASSUMPSIT     355 

Certainly  after  1379  it  was  never  necessary,  in  order  to 
constitute  a  man  your  receiver  and  therefore  to  render  him 
accountable  to  you,  that  he  should  have  received  the  money 
from  you. 

"  If  money  be  delivered  by  A  to  B  in  order  that  it  may 
be  delivered  by  B  to  C,  or  if  it  be  delivered  by  A  to  B  to  the 
use  of  C,  it  has  often  been  held  that  B  will  be  accountable  to 
C."  l 

It  thus  became  firmly  settled  that  it  was  not  necessary  for 
the  receiver  to  have  actually  received  the  money  from  the 
plaintiff.  If,  in  the  course  of  his  dealing  with  another  per- 
son, the  defendant  became  the  receiver  of  money  due  the 
plaintiff,  though  the  plaintiff  was  not  privy  to  the  transac- 
tion or  even  aware  of  it,  he  could  enforce  it. 

In  a  case  of  account  by  a  legatee  against  executors  the 
objection  was  made:  "How  can  the  daughter  who  never 
bails  the  money  to  the  executors  have  account?  "  To  which 
Lord  Brooke  answered :  "  I  command  you  to  receive  my  rents 
and  deliver  them  to  Lord  Dyer,  he  shall  have  account  against 
you :  yet  he  did  not  bail  the  money."  2 

"  If  a  man  deliver  money  to  you  to  pay  to  me,  I  shall 
have  account  against  you,  although  he  may  be  but  a  mes- 
senger.3 

"  A  man  shall  have  a  writ  of  account  against  one  as  bailiff 
or  receiver  where  he  was  not  his  bailiff  or  receiver;  for  if 
a  man  receive  money  for  my  use,  I  shall  have  an  account 
against  him  as  receiver;  or  if  a  man  do  deliver  money  unto 
another  to  deliver  over  unto  me,  I  shall  have  an  account 
against  him  as  my  receiver."  4 

In  1489  (4  Hen.  VII)  it  is  said  by  Brian  5  per  dictum: 

"  And  sir,  if  I  have  lands,  and  a  man  receives  my  rents, 
and  without  my  assent,  still  he  is  receiver  &c.  because  the 
receipt  charges  him  etc."  6 

1Langdell,  "A  Brief  Survey  of  Equity  Jurisdiction,"  ii  Harvard 
Law  Review,  page  249. 

3Paschall  v.  Keterich,  Dyer,  152,  note. 

81  Roll.  Abr.  Accompt  (A)  pi.  6. 

4Fitzherbert  Natura  Brevium,  Account  [117]  Q.  Rolle  Abr.  Ac- 
compt (A)  pi.  6. 

0  Thomas  Bryan,  Chief  Justice  of  the  Common  Pleas,  1471  to  his 
death  in  1500. 

•Y.  B.  4  Hen.  vii.  Fol.  6,  pi.  2. 


356  VI.     CONTRACTS 


Ownership  by  the  third  party  beneficiary,  of  the  money  or 
thing  bailed  was  neither  essential  to,  nor  was  it  at  all  present 
in,  the  basis  of  the  right  to  bring  account  or  debt. 

It  is  perfectly  true,  as  has  been  said  by  Professor  Ames, 
that  in  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."  But 
Professor  Ames  here  is  describing  an  early  juridicial  con- 
ception; and  he  does  not  mean  that  in  every  case  the  thing 
sought  must  be  proved  to  have  belonged  to  the  plaintiff. 
This  conception  was  in  reality  the  explanation  of  the  judicial 
reasoning  by  which  debt  for  property  loaned  by  the  plain- 
tiff 2  expanded  in  an  early  age  of  the  common  law  into  debt 
for  money  due  on  a  "  real  contract." 

"  In  its  earliest  stage  the  action  is  thought  of  as  an  action 
whereby  a  man  '  recovers  '  what  belongs  to  him.  It  has  its 
root  in  the  money  loan;  for  a  very  long  time  it  is  chiefly 
used  for  the  recovery  of  money  that  has  been  lent.  The  case 
of  the  unpaid  vendor  is  not  —  this  is  soon  seen  —  essentially 
different  from  that  of  the  lender:  he  has  parted  with  prop- 
erty and  demands  a  return."3  Of  course,  by  37  Hen.  VI 
(1459)  any  idea  that  the  plaintiff  vendor  really  owned  the 
money  due  on  a  sale  of  a  chattel  has  disappeared,  and  the 
conception  has  become  merely  a  legal  fiction. 

In  debt,  if  the  quid  pro  quo  was  a  chattel,  the  title  to  or 
the  ownership  of  it  was  by  the  delivery  absolutely  vested  in 
the  debtor. 

Where  A  loaned  money  to  B  and  then  brought  debt  for 
its  recovery,  the  legal  title  to  the  money  bailed  was  always 
in  B,  otherwise  the  very  intention  of  the  loan  would  be  de- 
feated —  i.  e.,  if  B  could  not  transfer  title  to  the  money  he 
could  have  no  benefit  from  the  loan.  4  Where  A  promised 

1  Ames's  "  Parol  Contracts  Prior  to  Assumpsit,"  viii  Harvard  Law 
Review,  at  page  260  (1894). 

2  Pollock  and  Maitland's  History  of  English  Law,  vol.  ii,  page  208. 
8  See  note  1  supra. 

4 "The  subject  of  a  loan  may  be  either  a  specific  thing,  as  a  horse 
or  a  given  quantity  of  a  thing  which  consists  in  number,  weight,  or 
measure,  as  money,  sugar,  or  wine.  In  the  former  case  it  is  of  the 
essence  of  the  transaction  that  the  thing  lent  continue  to  belong  to  the 
lender:  otherwise  the  transaction  is  not  a  loan. 

"In  the  latter  case,  the  thing  lent  may  (and  commonly  does)  cease 


62.     HEN  ING:  BENEFICIARY  IN  ASSUMPSIT     357 

B  "  that  if  he  is  willing  to  carry  20  quarts  of  wheat  of  my 
Master  Prisot  to  G,  he  shall  have  40  shillings,"1  no  one  in 
the  time  of  Henry  VI  or  to-day  would  contend  that  the  title 
to  any  specific  40  shillings  was  ever  in  B.  The  situation  is 
not  different  where  A  gives  B  40  shillings  to  give  to  C.  B 
after  the  conversion  is  C's  debtor,  but  C  does  not  have  the 
title  to  any  specific  40  shillings.  Of  course,  A  can  say  to  B, 
give  C  this  bag  of  coins  or  these  particular  crowns,  and  then 
no  title  passes  to  B,  for  the  title,  so  far  as  B  is  concerned, 
is  always  either  in  A  or  C,  according  to  the  nature  of  the 


to  belong  to  the  lender  and  become  the  property  of  the  borrower,  such 
a  loan  commonly  being  an  absolute  transfer  of  title  in  the  thing  lent 
from  the  lender  to  the  borrower.  The  reason  why  such  a  transfer  of 
title  takes  place  is  obvious.  The  object  of  borrowing  is  to  have  the 
use  of  the  thing  borrowed;  but  the  use  of  things  which  consist  in 
number,  weight,  or  measure  commonly  consumes  them;  and  this  use, 
of  course,  the  borrower  cannot  have  unless  he  owns  the  things  used. 
When  such  things  are  lent,  therefore,  it  is  presumed  to  be  the  intention 
of  both  parties,  in  the  absence  of  evidence  to  the  contrary,  that  the 
borrower  shall  acquire  the  title  to  them. 

But  why  then  call  the  transaction  a  loan?  The  answer  is,  that,  in 
every  particular  except  the  transfer  of  title,  it  is  a  loan;  that  the 
title  is  transferred  for  the  purpose  of  making  the  loan  effective  as  such, 
and  because  it  is  immaterial  to  the  lender  whether  he  receives  back  the 
identical  thing  lent  or  something  else  just  like  it.  Moreover,  the 
difference  between  a  loan  of  money,  for  example,  and  a  loan  of  a 
specific  article,  is  not  commonly  present  to  the  minds  of  the  parties; 
the  lender  of  money  thinks  the  money  lent  still  belongs  to  him,  and 
that  the  borrower  has  acquired  only  the  right  to  use  it  temporarily; 
he  is  aware  that  the  borrower  is  entitled  to  transfer  to  other  persons 
the  identical  coins  lent,  and  that  he  has  the  option  of  returning  to  him, 
the  lender,  either  the  identical  coins  borrowed  or  others  like  them; 
but  he  is  not  aware  that  these  rights  in  the  borrower  are  inconsistent 
with  his  retaining  the  title  to  the  money  lent.  In  other  words,  he 
supposes  (and,  in  every  view  except  the  strict  legal  view,  he  is  right 
in  supposing)  that  he  may  own  a  given  sum  of  money  without  owning 
any  specified  coins;  and  that  the  only  substantial  difference  between 
money  in  his  own  coffer  and  money  due  to  him  is,  that  in  the  former 
case  he  has  the  possession,  while  in  the  latter  he  has  not. 

A  debt,  therefore,  according  to  the  popular  conception  of  the  term, 
is  a  sum  of  money  belonging  to  one  person  (the  creditor),  but  in  the 
possession  of  another  (the  debtor).  There  is  also  much  reason  to 
believe  that  this  popular  conception  of  a  debt  was  adopted  by  the  early 
English  law,  at  least  for  certain  purposes.  Thus,  the  action  of  debt 
(which  was  established  for  the  sole  and  exclusive  purpose  of  recovering 
debts  of  every  description)  was  in  the  nature  of  an  action  in  rem,  and 
did  not  differ  in  substance  from  the  action  of  detinue;  the  chief  differ- 
ences between  them  being  that  the  latter  was  for  the  recovery  of 
specified  things  belonging  to  the  plaintiff,  the  former,  of  things  not 
specified."  Langdell's  Summary  of  Contracts,  Sections  99,  100. 

1  Year  Book,  37  Hen.  VI,  pi.  18  page  8. 


358  VI.     CONTRACTS 

transaction  between  them.  B  is  then  not  a  debtor  but  a 
bailee,  and  is  liable  to  C  in  an  action  of  detinue. 

Thus  in  1339  detinue  was  brought  for  20  pounds  "  in  a 
bag  sealed  up,  etc.,  etc."  The  defendant  objected  to  the 
writ  on  the  ground  "  that  he  demands  money,  which  naturally 
sounds  in  an  action  of  debt  or  account."  The  plaintiff  re- 
plied, "  We  did  not  count  of  a  loan  which  sounds  in  debt, 
nor  of  a  receipt  of  money  for  profit,  which  would  give  an 
action  of  account,  but  of  money  delivered  in  keeping  under 
seal,  etc.,  which  could  not  be  changed."  The  defendant  was 
required  to  answer  over. 1 

But  where  money  in  an  unsealed  bag  was  delivered,  "  one 
penny  cannot  be  known  from  another  in  a  bag,  we  are  of 
opinion  that  detinue  does  not  lie  and  therefore  reverse  the 
judgment."  2 

"  When  the  defendant  receives  money  belonging  to  the 
plaintiff  but  receives  it  under  such  circumstances  that  he  has 
a  right  to  appropriate  it  to  his  own  use,  making  himself  a 
debtor  to  the  plaintiff  to  the  same  amount,  and  the  defend- 
ant exercises  such  right,  the  receipt  of  the  money  will  create 
a  debt."3 

Surely  therefore  there  is  sufficient  warrant  for  the  induc- 
tion that  although  title  did  not  exist  in  the  beneficiary  to 
the  specific  goods  or  money  bailed  to  the  defendant,  this  fact 
constituted  no  objection  either  to  the  beneficiary's  right  to 
have  an  account  or  to  his  later  right  to  treat  as  his  debtor 
the  accountant  who  failed  to  produce  an  account  of  the 
property  bailed  by  a  stranger  for  the  plaintiff's  benefit. 

The  nature  of  the  action  of  account  imposes  this  limita- 
tion upon  the  beneficiary  that  he  can  have  no  remedy  unless 
property  has  been  transferred  to  the  accountant  by  the 
stranger.  Hence,  mutual  promises  between  the  defendant 

'Y.  B.  12  &  13  Edw.  Ill,  244.  Ames'  Cases  on  Trusts,  vol.  i,  p. 
52. 

2  Banks  v.  Whetstone,  1  Dyer  22  b,  note  137:  "The  chattel  might 
be  delivered  to  the  bailee  to  be  delivered  to  a  third  person,  in  which 
case  the  third  person  was  allowed  to  maintain  detinue  against  the 
bailee." — • "  Ames'  Parol  Contracts  Prior  to  Assumpsit,"  vi  Harvard 
Law  Review,  at  p.  258. 

3Langdell:  "A  Brief  Survey  of  Equity  Jurisdiction,"  ii  Harvard 
Law  Review,  at  page  245  (1889). 


68.     HEN  ING:  BENEFICIARY  IN  ASSUMPSIT     359 

and  a  stranger  could  never  make  the  defendant  accountable 
to  the  plaintiff. l  Notwithstanding  the  fact  that  the  concep- 
tion of  a  quid  pro  quo  expanded  so  as  to  comprise  services 
performed  on  request  as  well  as  property  delivered,2  the 
writer  has  been  unable  to  discover  any  case  wherein  a  bene- 
ficiary has  recovered  upon  a  bilateral  contract  made  between 
the  defendant  and  a  stranger,3  even  though  that  bilateral 
contract  has  been  afterwards  executed  by  the  stranger's  per- 
forming some  act  other  than  the  delivery  of  property  &c.  to 
the  defendant.4 

Undoubtedly  however,  the  defendant  has  always  been  liable 
in  the  action  of  account  when  the  defendant  has  received 
property  though  from  a  stranger,  under  a  promise  to  ac- 
count in  respect  thereof  to  the  beneficiary.  It  would  be 
incorrect  however  to  say  that  this  action  will  lie  upon  "  an 
executed  consideration."  Though  a  consideration  may  be 
executed  by  the  promisee,  the  promisor  does  not  thereby  be- 
come accountable  to  the  plaintiff-beneficiary. 

A  later  age,  the  legal  phraseology  of  which,  as  applied 
in  assumpsit,  has  invaded  all  our  conceptions  of  contractual 
liability,  will  speak  of  an  "  executed  consideration ;  "  but  in 
the  actions  of  Account  and  of  Debt,  from  the  earliest  to  the 
latest  times,  .there  was  no  consideration,  and  hence  it  tends 
only  to  confusion  of  thought  to  say  that  "  the  considera- 
tion "  must  be  "  executed  "  and  not  "  executory." 

Therefore  to  state  the  doctrine  of  accountability  to  a 
beneficiary  with  accuracy,  we  should  say  'that  the  defendant 
could  be  made  accountable  to  the  plaintiff  only  where  prop- 

1  Archdale  v.  Barnard,  1  Rolle  Abr.  p.  30,  pi.  3. 

'See  American  Law  Register,  Vol.  52,  Old  Series,  (43  New  Series), 
pages  776,  777,  778,  779. 

8  Hence  the  modern  case  Crow  v.  Rogers,  1  Strange,  592  (1724), 
presented  no  case  of  accountability  or  debt  and  the  conclusion  properly 
reached  in  that  case  does  not  impinge  upon  the  doctrine  of  accounta- 
bility to  the  beneficiary. 

4  Thus  in  Ritley  v.  Dennet,  1  Rolle's  Abridgment,  p.  30  (Trin.  4 
Jac.  B.  R.)  the  abridger  states:  "If  C  is  indebted  to  A  and  D  is 
indebted  to  N  in  the  sum  of  20  pounds  and  C  at  the  request  of  D 
pays  the  20  pounds  for  him  to  N,  and  directs  D  to  pay  so  much  over 
to  A  for  him,  and  D  in  consideration  of  the  premises,  promises  to  pay 
the  20  pounds  to  A,  A  cannot  save  action  on  the  case  on  this  promise 
against  D  for  he  is  a  stranger  to  it  and  there  is  not  consideration  for 
any  assumpsit  to  him." 


360  VI.     CONTRACTS 

erty  had  been  bailed  or  land  had  been  conveyed,  or  money 
had  been  received  for  the  plaintiff's  benefit  (i.  e.  to  pay  him 
money  or  give  him  an  account)  ;  and  this  conveyance  or 
bailment  might  be  at  the  hands  of  a  stranger. 

THE    DEBT    AND     THE    ACCOUNTABILITY    DISTINGUISHED     FROM 

A    TRUST 

In  the  action  of  debt,  the  relation  of  the  debtor  to  both 
the  beneficiary  and  the  quid  pro  quo  is  plainly  distinguish- 
able from  the  relation  of  the  modern  trustee  to  the  cestui 
que  trust,  and  to  the  "  trust  property."  This  distinction 
is  demanded  nowadays,  because  the  tests  which  determine 
a  trust  are  not  those  which  determine  an  accountability  or  a 
debt. 

The  practical  consequence  of  confounding  debts  or  ac- 
countabilities with  trusts  is  to  erroneously  limit  the  right 
of  action  of  the  beneficiary  at  common  law  to  only  those 
cases  which  fulfil  the  requisites  of  a  modern  trust.1 

The  modern  trust,  with  its  conception  of  a  double  title 
to  the  trust  property,  —  i.  e.,  of  a  distinct  "  equitable  owner- 
ship "  apart  from  the  legal  title,  —  was  a  conception  which 
developed  in  the  Court  of  Chancery  many  years  after  the 
right  of  the  beneficiary  in  Account  and  in  Debt  had  been  es- 
tablished at  law.  The  cestui  que  trust  in  later  times  recovers,, 
because  as  to  certain  specific  property  he  has  a  title  recog- 
nized by  Chancery.  The  above  conceptions  of  liability  in 
Account  and  in  Debt  are  radically  distinct  from  that  of  the 
trust.  The  bailee  has  ownership  of  the  thing  as  to  which  he 
must  render  an  account.  The  quid  pro  quo,  if  a  chattel,  be- 
comes, as  above  stated,  the  absolute  property  of  the  debtor. 
His  receipt  of  it  gives  rise  to  an  obligation  to  pay  the  bene- 
ficiary ;  but  no  one  ever  supposes  that  the  beneficiary's  right 
to  recover  is  based  on  any  "  equitable  ownership  "  of  the 
chattel,  or  of  the  sum  of  money  recovered. 

1  In  a  number  of  decisions  of  New  York,  New  Jersey  and  of  Pennsyl- 
vania the  beneficiary  recovers  though  there  is  no  trust.  Professor  Wil- 
liston  has  criticized  the  Pennsylvania  decisions  as  being  "  apparently  an 
unwarranted  extension  of  the  law  of  trusts,"  in  15  Harvard  Law  Re- 
view, p.  780,  note  9.  From  this  view  the  present  writer  dissents. 


62.     HEN  ING:  BENEFICIARY  IN  ASSUMPSIT     361 

It  has  been  said  by  Professor  Ames  that  "  A  plaintiff  en- 
titled to  an  acount  was  strictly  a  cestui  que  trust;  "  l  and 
further,  that  "  trusts  for  the  payment  of  money  were  en- 
forced at  common  law  long  beefore  Chancery  gave  effect  to 
trusts  of  land.  It  need  not  surprise  us,  therefore,  to  find 
that  upon  the  delivery  of  money  by  A  to  B  to  the  use  of  C, 
or  to  be  delivered  to  C,  C  might  maintain  an  action  of  ac- 
count against  B."2 

This  language  is  an  apt  analogy  or  simile,  but  does  not 
represent,  and  was  doubtless  not  intended  to  represent,  an 
exact  equation. 

Misapprehension  will  arise  if  the  position  of  the  bene- 
ficiary in  account  is  understood  as  identical  with  that  of  the 
modern  cestui  que  trust  in  equity. 

If  A  transfers  chattels  or  stock  to  B,  directing  B  to  apply 
the  rent  or  income  of  the  property  to  the  payment  of  A's 
creditor,  X,  there  arises,  by  the  doctrine  of  trusts,  a  double 
title,  one  equitable  in  X,  and  the  other  legal  in  B,  and  the 
situation  is  called  in  equity  a  trust. 

If  A  gives  chattels  to  B  in  such  a  way  that  the  chattels  are 
the  absolute  property  of  B,  and  in  consideration  thereof  B 
promises  A  to  pay  A's  creditor,  X,  there  is  no  trust  what- 
ever. 

While  it  is  true  that  the  action  of  account  is  based  on 
the  conception  that  something  —  viz.,  an  account  —  belong- 
ing to  one  man,  the  plaintiff,  is  in  the  possession  of  another 
man,  the  defendant,  we  have  above  shown  that  no  specific 
money  is  supposed  to  be  owned  by  the  plaintiff.  His  right  is 
only  to  receive  an  equivalent  sum.  In  account,  the  defendant's 
"  obligation  must  be  capable  of  being  discharged  by  return- 

1 "  Parol  Contracts  Prior  to  Assumpsit,"  viii  Harvard  Law  Review,  p. 
258  (1894)  ;  Essay  No.  60,  in  this  Collection. 

2Ib. 

Year  Book,  12  and  13  Edw.  Ill,  244;  Ames,  Cases  on  Trusts,  vol.  i, 
page  52. 

Banks  v.  Whetston,  1  Dyer,  22  b.  note  137:  "The  chattel  might  be 
delivered  to  the  bailee  to  be  delivered  to  a  third  person,  in  which  case 
the  third  person  was  allowed  to  maintain  detinue  against  the  bailee." 
Ames,  "  Parol  Contracts  Prior  to  Assumpsit,"  vi  Harvard  Law  Review, 
at  page  258;  Essay  No.  60,  in  this  Collection. 

Langdell,  "A  Brief  Survey  of  Equity  Jurisdiction,"  ii  Harvard  Law 
Review  at  page  245  (1889). 


362  VI.     CONTRACTS 

ing  to  the  plaintiff  (not  the  identical  money  received,  but) 
any  money  equal  in  amount  to  the  sum  received."  In  the 
former  of  the  two  above  stated  cases,  X  has  by  the  modern 
doctrine  of  trusts  an  equitable  title  with  respect  to  the  chat- 
tels. In  the  latter  case,  he  has  no  equitable  title,  but  he  has 
the  right  to  recover  in  the  common  law  action  of  account. 

The  right  of  action  of  the  beneficiary  at  common  law  in 
account  was  therefore  different  from  that  of  a  cestui  que 
trust,  because  the  former  had  a  right  of  action  notwith- 
standing the  fact  that  the  title  to  the  property  might  be 
vested  absolutely  and  solely  in  the  defendant. 

This  distinction  between  a  trust  and  an  accountability  to, 
or  receivership  in  favor  of,  a  third  party  is  of  much  conse- 
quence because  the  second  of  the  two  above  hypothetical 
cases  (i.  e.,  where  no  modern  trust  exists)  is  a  typical  for- 
mula expressing  the  right  of  a  third  party  to  recover  at  com- 
mon law  in  account. 

The  cases  cited  by  Professor  Ames  have  all  been  examined 
without  disclosing  anything  inconsistent  with  this  conclu- 
sion. 

The  first  reported  cases  in  Chancery  where  the  heir  or 
transferee  of  the  title  of  cestui  que  use  compels  "  the  feofee 
to  uses"  to  convey2  are  of  the  reign  of  Edward  IV,3  and 
are  readily  explained  on  the  ground  of  a  duty  imposed  by 
Chancery  on  the  conscience  of  the  feofee  to  uses  without  re- 
sorting to  any  conception  of  "  equitable  ownership." 

We  find  the  right  of  the  beneficiary  in  account  recognized 
as  early  as  1364-1368, 4  where  the  transaction  is  described 
as  a  bailment  and  not  yet  as  a  transfer  of  property  "  al 
oeps."  The  first  case  the  writer  has  found  where  the  words 
"  al  oeps  "  are  used  in  this  connection  was  in  1458.  5 

If  we  look  to  the  then  contemporaneous  chancery  doctrine 
of  uses,  we  find  nothing  to  indicate  that  a  use  in  Chancery 
in  the  fourteenth  and  fifteenth  centuries  was  more  than  a 

1Langdell:  ii  Harvard  Law  Review,  page  246. 

*  Archbishop  of   York  v.  Richard  Osborn  and  Edward  Gower,  Cal. 
94;  Spence's  Equitable  Jurisdiction,  page  454. 

*  See  Chancery  Calendars. 

4  Y.  B.  41  Ed.  Ill,  folio  10,  pi.  5.    Y.  B.  47  Ed.  Ill,  folio  16,  pi.  25. 
6Y.  B.  36  Hen.  vi,  Fol.  8,  pi.  5. 


68.     HEN  ING:  BENEFICIARY  IN  ASSUMPSIT     363 

personal  right  of  cestui  que  use,  his  heirs,  devisee,  or  assignee, 
against  the  feofee  to  uses. 

The  authorities  collected  by  Professor  Ames  establish  be- 
yond question  that  as  late  as  1450  the  heir  of  the  feofee  to 
uses  held  the  land  free  from  liability  to  the  cestui  que  use.1 

A  use  might  be  enforced  by  the  heir,  etc.,  "  but  neither 
a  wife,  a  husband,  nor  a  judgment  creditor  was  entitled  to 
this  privilege." 2  "  If  the  feofee  to  uses  died  without  heir 
or  committed  a  forfeiture  or  married,  neither  the  lord  who 
entered  for  the  escheat  or  forfeiture  nor  the  husband  who 
retained  the  possession  as  tenant  by  the  curtesy,  nor  the  wife 
to  whom  the  dower  was  assigned,  were  liable  to  perform  the 
trust,  because  they  were  not  parties  to  the  transaction,  but 
came  in  by  act  of  law,  or  in  the  post,  and  not  in  the  per,  as  it 
was  said,  though  doubtless  their  title  in  reason  was  no  better 
than  that  of  the  heir  against  whom  the  remedy  was  extended. 
It  was  the  same  as  regards  any  other  person  who  obtained 
possession,  not  claiming  by  any  contract  or  agreement  with 
the  feofee,  between  whom  and  the  cestui  que  use,  therefore, 
there  was  no  privity.  '  Where  there  was  no  trust,  there  could 
be  no  breach  of  trust.'  The  remedy  against  a  disseisor, 
therefore,  was  not  in  Chancery  at  the  instance  of  the  cestui 
que  trust,  but  at  law  at  the  instance  of  the  feofee;  and  it 
was  part  of  his  duty  to  pursue  his  legal  remedies  at  the 
desire  of  the  cestui  que  trust."  8 

Uses  of  personalty  were  doubtless  enforced  in  Chancery 
at  an  early  date,4  but  in  debt  and  account  there  is  not  the 
slightest  ground  for  believing  that  the  recovery  of  a  bene- 
ficiary was  based  on  any  ownership,  equitable  or  otherwise, 
of  any  specific  coins  or  chattels,  or  that  the  defendant  in 
account  could  ever  be  restricted  from  transferring  the  title 
to  both  the  money  received  and  the  property  bailed.  It  has 
been  previously  shown  that  the  same  is  true  of  the  title  to 
the  quid  pro  quo  in  debt.  The  modern  characteristic  of 

1Ames'  Cases  on  Trusts,  vol.  i,  p.  345,  notes,  1  &  2. 

2Spence's  Equitable  Jurisdiction,  p.  446. 

8Spence's  Equitable  Jurisdiction,  page  445,  citing  Year  Book  K 
Hen.  VIII,  24:  "The  king  or  lord  by  escheat  cannot  be  seised  to  an 
use  or  trust  for  they  are  in  the  post  and  are  paramount  to  the  con- 
fidence." Jenk.  Ca.  xcii. 

4  See  Spence,  page  456,  note  h  (temp.  Hen.  VI). 


364  VI.     CONTRACTS 

equitable  ownership  —  the  right  to  compel  the  trustee  to 
devote  the  res  to  the  designated  purposes  —  was  precisely 
what  courts  of  law  in  account  never  dreamed  of  attempting. 
If  complete  title  had  not  been  transferred  to  the  bailee  or 
receiver,  the  very  purpose  of  the  bailment  ad  merchandis- 
andum  would  have  been  frustrated  and  so  of  the  bailment 
to  sell  and  render  account  to  the  beneficiary.  A  court  of 
law  was  obviously  without  the  machinery  to  enforce  such  an 
equitable  title  had  it  existed. 

It  is,  of  course,  true  that  judges  and  counsel,  In  speaking 
of  the  plaintiff's  right  of  recovery  in  account,  refer  to  his 
"  property  "  in  the  money  sought  to  be  recovered. 1 

But  this  means  no  more  than  the  similar  popular  con- 
ception that  we  have  seen  existed  in  regard  to  debt  and 
which  survives  to-day  in  the  popular  expression  "  money 
in  the  bank."2 

It  is  true  that  the  cases  in  account  speak  of  the  defendant's 
having  received  the  money  "  al  oeps  "  of  the  plaintiff.3 

But  in  reading  cases  of  debt  and  account  in  the  fifteenth, 
sixteenth,  and  seventeenth  centuries  we  must  not  mistranslate 
"  oeps  "  —  use,  still  less  should  we  translate  "  oeps  "  — 
trust.  The  word  "  oeps  "  is  derived  from  the  Latin  opus, 
signifying  benefit,  and  not  from  the  word  uses,  4  a  term  of 
definite  legal  meaning  in  the  civil  law.5 

1  See  Cases  in  Year  Books,  ante. 

2  "The  repayment  of  an  equivalent  sum  of  money  is  equated,  with 
the  bold  crudity  of  archaic  legal  thought,  to  the  restitution  of  specific 
land  or  goods.    Our  Germanic  ancestors  could  not  conceive  credit  under 
any  other  form.     After   all,   one  may   doubt  whether  the  majority  of 
fairly  well-to-do   people,   even   at   this   day,   realize   that   what   a   man 
calls   *  my  money  in  the  bank '   is   a  mere  personal   obligation   of  the 
banker    to    him."      "Pollock's    Contracts    in    Early    English    Law,"    vi 
Harvard  Law  Review,  page  399    (1892). 

3  See  ante,  Cases  in  Year  Books.    See  also  Year  Book  2  Hen.  IV,  pi. 
50,  folio  12. 

4 "The  Origin  of  Uses,"  by  F.  W.  Maitland,  viii  Harvard  Law 
Review,  page  127  (1894);  Pollock  and  Maitland's  History  of  English 
Law,  vol.  ii,  pages  228-240. 

"The  germ  of  agency  is  hardly  to  be  distinguished  from  the  germ 
of  another  institution  which  in  our  English  law  has  an  eventful  future 
before  it,  the  *  use  trust  or  confidence.'  In  tracing  its  embryonic  history 
we  must  first  notice  the  now  established  truth  that  the  English  word 
use  when  it  is  employed  with  a  technical  meaning  in  legal  documents 
is  derived,  not  from  the  Latin  word  usus,  but  from  the  Latin  word 
opus,  which  in  old  French  becomes  os  or  oes.  True  that  the  two  words 
are  in  course  of  time  confused,  so  that,  if  by  a  Latin  document  land 


62.     HEN  ING:  BENEFICIARY  IN  ASSUMPSIT     365 

Thanks  to  Professor  Maitland's  researches,  we  have  direct 
evidence  that  for  many  years  "  oeps  "  was  used  merely  to 
signify  a  benefit  and  without  any  settled  technical  significa- 
tion, either  of  a  later  Chancery  trust  or  of  a  civil  law  "  usus." 

His  researches  show  that  in  1238-9  Bracton  records 
that  "  a  woman,  mother  of  H,  desires  a  house  belonging  to 
R ;  H  procures  from  R  a  grant  of  the  house  to  H  to  the  use 
(ad  opus)  of  his  mother  for  her  life."  J 

As  late  as  the  year  1339  occurs  a  case,  not  mentioned  by 
Professor  Maitland,  where  the  word  "  oeps  "  is  used  unmis- 
takably in  the  sense  of  benefit  and  without  any  suggestion 
of  a  legal  and  equitable  title.  In  Year  Book  XII  and  XIII 
Edward  III,  page  231  (1339)  occurs  the  description  of  a 
feudal  conveyance,  and  in  describing  the  transaction  the 
language  applied  to  the  vendors  is :  "  II  vendront  et  rendront 
en  la  court  le  seignur  al  oeps  celui  qe  serra  feffe  et  les  baillifs 
front  execution." 

The  note  of  the  editor  of  this  translation  of  the  Year 
Books  shows  that  the  words  "  ad  oeps"  which  he  has  trans- 
lated "  to  the  use,"  are  in  the  record  "  ad  opus." 

"  We  hardly  need  say  that  the  use  of  our  English  law  is 
not  derived  from  the  Roman  '  personal  servitude ; '  the  two 
have  no  feature  in  common.  Nor  can  I  believe  that  the 
Roman  fideicommissum  has  anything  to  do  with  the  evolu- 
tion of  the  English  use.  In  the  first  place,  the  English  use 
in  its  earliest  stage  is  seldom,  if  ever,  the  outcome  of  a  last 
will,  while  the  fideicommissum  belongs  essentially  to  the  law 
of  testaments.  In  the  second  place,  if  the  English  use  were 
a  fideicommissum  it  would  be  called  so,  and  we  should  not  see 
it  gradually  emerging  out  of  such  phrases  as  ad  opus  and 
ad  usum.  What  we  see  is  a  vague  idea,  which  developing  in 
one  direction  becomes  what  we  now  know  as  agency,  and  de- 
veloping in  another  direction  becomes  that  use  which  the 
common  law  will  not,  but  equity  will,  protect.  Of  course, 

is  to  be  conveyed  to  the  use  of  John,  the  Scribe  of  the  Charter  will 
write  ad  opus  Johannis,  or  ad  usum  Johannis  indifferently,  or  will 
perhaps  adopt  the  fuller  formula,  ad  opus  et  ad  usum,  nevertheless  the 
earliest  history  of  '  the  use '  is  the  early  history  of  the  phrase  ad  opus." 
—  Maitland,  "  The  Origin  of  Uses,"  viii  Harvard  Law  Review,  page  127. 
1F.  W.  Maitland:  "The  Origin  of  Uses,"  viii  Harvard  Law  Review, 
page  134. 


366  VI.     CONTRACTS 

again,  our  *  equitable  ownership  '  when  it  has  reached  its  full 
stature  has  enough  in  common  with  the  praetorian  bonorum 
possessio  to  make  a  comparison  between  the  two  instructive; 
but  an  attempt  to  derive  the  one  from  the  other  would  be  too 
wild  for  discussion."1 

The  present  investigation  does  not  involve  such  recondite 
issues  as  whether  or  not,  and  if  so,  to  what  extent,  Chancery 
was  indebted  to  the  civil  law  for  the  doctrine  of  uses. 

The  cases  taken  from  the  Year  Books  show  that  the  word 
"  oeps  "  is  frequently  used  in  describing  the  beneficiary. 

The  writer  submits  that  there  is  not  the  slightest  reason  to 
believe  that  either  in  the  Year  Books  or  in  Rolle  the  word 
"  oeps  "  or  "  use,"  etc.,  was  used  in  the  technical  meaning 
of  a  modern  trust  —  i.  e.,  to  convey  the  idea  of  equitable 
ownership  and  a  double  title.  What  is  here  contended  is  that 
in  the  cases  of  debt  and  account  in  the  Year  Books  the  word 
"  oeps  "  or  "  opus  "  is  used  in  the  then  familiar  and  common 
everyday  meaning  of  benefit.2  In  debt  or  account  it  was 
enough  if  the  chattel  or  money  was  received  for  the  benefit 
of  a  third  person.  The  beneficiary  recovered  in  debt  or 
in  account,  not  because  he  was  a  "  fructuarius  "  under  the 
civil  law,  nor  because  he  was  a  "  cestui  que  trust,"  that  later 

1  F.  W.  Maitland,  "  The  Origin  of  Uses,"  viii  Harvard  Law  Review, 
page  137. 

2 Year  Book  10  Hen.  VI,  6,  pi.  19:  "A  man  brought  writ  of  debt 
against  an  executor  and  recovered  and  had  fieri  facias  to  the  sheriff 
of  London,  and  levied  the  money  of  the  goods  of  the  deceased.  And  the 
sheriff  returned  that  he  had  no  goods  of  the  deceased,  but  that  they 
had  goods  long  time  before  the  writ  and  he  delivered  and  had  sold  the 
goods  and  converted  the  sum  to  their  own  oeps." 

Year  Book  10  Hen.  VI,  11,  38:  "  Bakington.  The  husband  shall  have 
good  action  in  this  case  that  you  have  put  and  it  is  not  against  reason 
that  the  husband  shall  be  charged  of  this  debt,  for  the  freehold  was 
in  him  as  well  as  in  the  wife  during  the  coverture,  and  all  profits  of 
the  land  he  took  to  his  own  oeps." 

Year  Book  4  Ed.  Ill,  50  pi.  45:  "One  A  brought  his  writ  of  account 
against  G,  de  tempore  quo  fuit  receptor  denarr,  and  counted  that  he 
received  20  pounds  to  trade,  etc.,  and  of  this  good  and  legal  account 
rendered,  and  said  if  he  would  deny  it  he  had  good  suit,  and  see  here 
the  deed  which  witnesses  it;  and  it  was  read  and  said  that  G  had  re- 
ceived 20  pounds  of  the  aforesaid  A  and  P,  his  wife  to  profit  to  the 
oeps  of  the  aforesaid  A  and  P,  and  bound  themselves  to  pay  20  pounds 
on  a  certain  day  to  the  aforesaid  A  and  P." 

Year  Book  4  Ed.  Ill,  31  pi.  38  (last  of  case):  "Thorpe.  Say 
whether  she  administered  as  executrix,  or  not,  as  this  writ  charges; 
for  peradventure  if  she  claims  all  to  her  own  oeps,  and  does  not  make 
distribution  for  alms,  then  she  did  not  administer  as  executrix." 


€8.     HENING:  BENEFICIARY  IN  ASSUMPSIT     367 

protege  of  Chancery,  but  because  the  primary  obligation 
known  as  a  debt  or  a  receivership  had  been  created  for  the 
plaintiff's  benefit  by  the  defendant's  receipt  of  money  or 
property. 

As  account  was  not  based  on  contract  (i.  e.  in  the  nine- 
teenth century  use  of  that  word),  the  liability  of  the  defend- 
ant to  account  to  the  beneficiary  presupposed  no  prior  con- 
tractual relation  of  any  kind  between  them.  The  phrase 
"  stranger  to  the  consideration,"  as  applied  to  the  plaintiff 
in  account,  would  have  been  meaningless  jargon  to  the  law- 
yers of  the  fourteenth  and  fifteenth  century.  After  four 
centuries  the  phrase  has  become  no  more  applicable. 

Nor  was  the  plaintiff  in  account  required  to  be  the  prom- 
isee. Privity  to  the  defendant's  obligation  was  a  pure  fiction. 
"  If,  however,  he  obtain  possession  in  the  plaintiff's  behalf 
and  as  his  representative,  though  without  any  actual  author- 
ity, the  plaintiff  may  adopt  and  ratify  his  acts,  and  thus 
establish  privity  between  him  and  the  plaintiff."1 

Debt  and  accountability  were  therefore  primary  common 
law  liabilities  and  species  of  simple  contract  enforceable  by 
the  beneficiary,  not  because  he  was  a  "  privy  "  to  the  con- 
tract, or  a  "  promisee  "  or  a  "  cestui  que  trust,"  or  had  fur- 
nished that  "  mystery "  of  the  eighteenth  and  nineteenth 
centuries  —  "  the  consideration."  We  err  in  attempting  to 
analyze  into  constituent  elements  a  substantive  right  which  is 
itself  primary  and  elemental. 

The  beneficiary  recovered  in  Account  because  the  judicial 
instinct  recognized  that  he  ought  to  recover,  and  the  courts 
held  that  by  common  law  he  had  a  substantive  right.  This 
common  law  right  was  the  expression  of  a  public  sense  of 
justice,  and  a  firmer  foundation  for  a  positive  rule  of  law 
need  not  be  sought. 

"  Justinian's  Pandects  only  make  precise 

What  simply  sparkled  in  men's  eyes  before, 
Twitched  in  their  brow  or  quivered  on  their  lip, 

Waited  the  speech  they  called  but  would  not  come.*' 

'Langdell,  "Brief  Survey  of  Equity  Jurisdiction,"  ii  Harvard  Law 
Review,  pages  248,  249. 


63.     THE    HISTORY    OF    AGENCY1 

BY  OLIVER  WENDELL  HOLMES,  JR.2 

I  PROPOSE  in  these  lectures  to  study  the  theory  of  agency 
at  common  law,  to  the  end  that  it  may  be  understood 
upon  evidence,  and  not  merely  by  conjecture,  and  that  the 
value  of  its  principles  may  be  weighed  intelligently.  I  first 
shall  endeavor  to  show  why  agency  is  a  proper  title  in  the 
law.  I  then  shall  give  some  general  reasons  for  believing 
that  the  series  of  anomalies  or  departures  from  general  rule 
which  are  seen  wherever  agency  makes  its  appearance  must 
be  explained  by  some  cause  not  manifest  to  common  sense 
alone;  that  this  cause  is,  in  fact,  the  survival  from  ancient 
times  of  doctrines  which  in  their  earlier  form  embodied  cer- 
tain rights  and  liabilities  of  heads  of  families  based  on  sub- 
stantive grounds  which  have  disappeared  long  since,  and 
that  in  modern  days  these  doctrines  have  been  generalized 
into  a  fiction,  which,  although  nothing  in  the  world  but  a 
form  of  words,  has  reacted  upon  the  law  and  has  tended  to 
carry  its  anomalies  still  farther.  That  fiction  is,  of  course, 
that,  within  the  scope  of  the  agency,  principle  and  agent  are 
one.  I  next  shall  examine  the  early  law  of  England  upon 
every  branch  of  the  subject,  —  tort,  contract,  possession, 
ratification,  —  and  show  the  working  of  survival  or  fiction 
in  each.  If  I  do  not  succeed  in  reducing  the  law  of  all  these 
branches  to  a  common  term,  I  shall  try  to  show  that  at  leawt 
they  all  equally  depend  upon  fiction  for  their  present  exist- 

JThis  Essay  originally  formed  two  lectures  delivered  by  the  author 
in  1882  while  professor  in  the  Law  School  of  Harvard  University.  They 
were  first  published  in  the  Harvard  Law  Review,  1891,  vol.  IV,  pp.  345- 
364,  vol.  V,  pp.  1-23. 

2  A  biographical  note  of  this  author  is  prefixed  to  Essay  No.  41,  in 
Vol.  II  of  this  Collection. 


63.     HOLMES:   HISTORY  OF  AGENCY       369 

ence.  I  shall  prove  incidentally  that  agency  in  its  nar- 
rower sense  presents  only  a  special  application  of  the  law 
of  master  and  servant,  and  that  the  peculiar  doctrines  of  both 
are  traceable  to  a  common  source.  Finally  I  shall  give  my 
reasons  for  thinking  that  the  whole  outline  of  the  law  is  the 
resultant  of  a  conflict  at  every  point  between  logic  and  good 
sense  —  the  one  striving  to  work  fiction  out  to  consistent 
results,  the  other  restraining  and  at  last  overcoming  that 
effort  when  the  results  become  too  manifestly  unjust. 

A  part  of  my  task  has  been  performed  and  my  general 
view  indicated  in  my  book  on  the  Common  Law.  It  remains 
to  discuss  the  matter  systematically  and  in  detail,  giving  due 
weight  to  the  many  difficulties  or  objections  which  are  met 
with  in  the  process. 

My  subject  extends  to  the  whole  relation  of  master  and 
servant  —  it  is  not  confined  to  any  one  branch;  so  that 
when  I  choose  the  title  "  Agency,"  I  do  not  use  it  in  the  strict 
sense  just  referred  to,  but  as  embracing  everything  of  which 
I  intend  to  treat. 

The  first  question  proposed  is  why  agency  is  a  proper  title 
in  the  law.  That  is  to  say,  Does  agency  bring  into  operation 
any  new  and  distinct  rules  of  law?  do  the  facts  which  consti- 
tute agency  have  attached  to  them  legal  effects  which  are 
peculiar  to  it,  or  is  the  agency  only  a  dramatic  situation  to 
which  principles  of  larger  scope  are  applied?  And  if  agency 
has  rules  of  its  own  incapable  of  being  further  generalized, 
what  are  they? 

If  the  law  went  no  farther  than  to  declare  a  man  liable  for 
the  consequences  of  acts  specifically  commanded  by  him  with 
knowledge  of  circumstances  under  which  those  consequences 
were  the  natural  results  of  those  acts,  it  would  need  no  ex- 
planation and  introduce  no  new  principle.  There  may  have 
been  some  difficulty  in  arriving  at  this  conclusion  when  the 
intervening  agent  was  a  free  person  and  himself  responsible. 
Speaking  without  special  investigation,  I  do  not  remember 
any  case  in  early  law  in  which  one  could  charge  himself  thus 
in  contract  or  even  in  tort.  Taking  the  allied  case  of  joint 
trespassers,  although  it  long  has  been  settled  that  each 
wrong-doer  is  liable  for  the  entire  damages,  the  objection 


370  VI.     CONTRACTS 

that  "  the  battery  of  one  cannot  be  the  battery  of  the  other  * 
prevailed  as  late  as  James  I.1  It  is  very  possible  that  lia- 
bility even  for  the  commanded  acts  of  a  free  person  first  ap- 
peared as  an  extension  of  the  liability  of  an  owner  for  similar 
acts  by  his  slave. 

But  however  this  may  be,  it  is  plain  good  sense  to  hold 
people  answerable  for  wrongs  which  they  have  intentionally 
brought  to  pass,  and  to  recognize  that  it  is  just  as  possible 
to  bring  wrongs  to  pass  through  free  human  agents  as 
through  slaves,  animals,  or  natural  forces.  This  is  the  true 
scope  and  mtaning  of  "  Qui  facit  per  alium  facit  per  se" 
and  the  English  law  has  recognized  that  maxim  as  far  back 
as  it  is  worth  while  to  follow  it. 2  So  it  is  only  applying  the 
general  theory  of  tort  to  hold  a  man  liable  if  he  commands 
an  act  of  which  the  natural  consequence,  under  the  circum- 
stances known  to  him,  is  harm  to  his  neighbor,  although  he 
has  forbidden  the  harm.  If  a  trespass  results,  it  is  as  much 
the  trespass  of  the  principal  as  if  it  were  the  natural,  though 
unwished  for,  effect  of  a  train  of  physical  causes.  3  In  such 
cases  there  is  nothing  peculiar  to  master  and  servant ;  similar 
principles  have  been  applied  where  independent  contractors 
were  employed.4 

No  additional  explanation  is  needed  for  the  case  of  a  con- 
tract specifically  commanded.  'A  difficulty  has  been  raised 
concerning  cases  where  the  agent  has  a  discretion  as  to  the 
terms  of  the  contract,  and  it  has  been  called  "  absurd  to 
maintain  that  a  contract  which  in  its  exact  shape  emanates 
exclusively  from  a  particular  person  is  not  the  contract  of 
such  person  \i.  e.9  the  agent],  but  is  the  contract  of  an- 
other."5 But  I  venture  to  think  that  the  absurdity  is  the 
other  way,  and  that  there  is  no  need  of  any  more  complex 
machinery  in  such  a  case  than  where  the  agent  is  a  mere 

1  Sampson  v.  Cranfield,  1  Bulstr.  157  (T.  9  Jac.). 

2  In  Tort:  Y.  B.  32  Ed.  I.  318,  320  (Harwood)  ;  22  Ass.  pi.  43,  fol.  94; 
11  H.  IV.  90,  pi.  47;  9  H.  VI.  53,  pi.  37;  21  H.  VI.  39;  4  Ed.  IV.  36; 
Dr.  &  Stud.,  II.  c.  42;  Seaman  &  Browning's  Case,  4  Leon.  123,  pi.  249 
(M.  31  Eliz.).     Conveyance:  Fitz.  Abr.  Annuitie,  pi.  51  (H.  33  Ed.  I.), 
where  the  maxim  is  quoted.     Account:  4  Inst.  109. 

8  Gregory  v.  Piper,  9  B.  &  C.  591.  Cf.  The  Common  Law,  53,  54,  and 
Lect.  3  and  4. 

4  Bower  v.  Peate,  1  Q.  B.  D.  321. 

6Thol,  Handelsrecht,  sect.  70,  cited  in  Wharton,  Agency,  sect.  6. 


63.     HOLMES:   HISTORY  OF  AGENCY       371 

messenger  to  express  terms  settled  by  his  principal  in  every 
detail.  Suppose  that  the  principal  agrees  to  buy  a  horse 
at  a  price  to  be  fixed  by  another.  The  principal  makes  the 
contract,  not  the  referee  who  settles  the  price.  If  the  agree- 
ment is  communicated  by  messenger,  it  makes  no  difference. 
If  the  messenger  is  himself  the  referee,  the  case  is  still  the 
same.  But  that  is  the  case  of  an  agent  with  discretionary 
powers,  no  matter  how  large  they  may  be.  So  far  as  he 
expresses  his  principal's  assent  to  be  bound  to  terms  to  be 
fixed  by  the  agent,  he  is  a  mere  messenger;  in  fixing  the 
terms  he  is  a  stranger  to  the  contract,  which  stands  on  the 
same  footing  as  if  it  had  been  made  before  his  personal  func- 
tion began.  The  agent  is  simply  a  voice  affording  the  marks 
provided  by  the  principal's  own  expression  of  what  he  under- 
takes. Suppose  a  wager  determined  in  amount  as  well  as 
event  by  the  spinning  of  a  teetotum,  and  to  be  off  if  num- 
bers are  turned  up  outside  certain  limits;  is  it  the  contract 
of  the  teetotum? 

If  agency  is  a  proper  title  of  our  corpus  juris,  its  peculi- 
arities must  be  sought  in  doctrines  that  go  farther  than  any 
yet  mentioned.  Such  doctrines  are  to  be  found  in  each  of 
the  great  departments  of  the  law.  In  tort,  masters  are  held 
answerable  for  conduct  on  the  part  of  their  servants,  which 
they  not  only  have  not  authorized,  but  have  forbidden.  In 
contract,  an  undisclosed  principal  may  bind  or  may  be  bound 
to  another,  who  did  not  know  of  his  very  existence  at  the 
time  he  made  the  contract.  By  a  few  words  of  ratification 
a  man  may  make  a  trespass  or  a  contract  his  own  in  which 
he  had  no  part  in  fact.  The  possession  of  a  tangible  object 
may  be  attributed  to  him  although  he  never  saw  it,  and  may 
be  denied  to  another  who  has  it  under  his  actual  custody  or 
control.  The  existence  of  these  rules  is  what  makes  agency 
a  proper  title  in  the  law. 

I  do  not  mean  to  assume  in  advance  that  these  rules  have 
a  common  origin  because  they  are  clustered  round  the  same 
subject.  It  would  be  possible  to  suggest  separate  reasons 
for  each,  and  going  farther  still,  to  argue  that  each  was  no 
more  than  an  application,  even  though  a  misapplication,  of 
general  principles. 


372  VI.     CONTRACTS 

Thus,  in  torts  it  is  sometimes  said  that  the  liability  of  the 
master  is  "  in  effect  for  employing  a  careless  servant,"  re- 
peating the  reason  offered  by  the  pseudo-philosophy  of  the 
Roman  jurists  for  an  exceptional  rule  introduced  by  the 
praetor  on  grounds  of  public  policy.1  This  reason  is  shown 
to  be  unsound  by  the  single  fact  that  no  amount  of  care  in 
selection  will  exonerate  the  master ; 2  but  still  it  might  be 
argued  that,  whether  right  or  wrong,  this  or  some  other 
notion  of  policy  had  led  to  the  first  of  the  rules  which  I  se- 
lected as  peculiar,  and  that  at  most  the  liability  of  a  master 
for  his  servant's  torts  is  only  a  mistaken  conclusion  from  the 
general  theory  of  tort. 

Then  with  regard  to  undisclosed  principals  in  contract,  it 
might  be  said  that  it  was  no  hardship  to  hold  a  man  bound 
who  had  commanded  his  servant  to  bind  him.  And  as  to  the 
other  and  more  difficult  half  of  the  doctrine,  the  right  of  an 
undisclosed  principal  to  sue,  it  might  be  observed  that  it  was 
first  asserted  in  cases  of  debt,8  where  the  principal's  goods 
were  the  consideration  of  the  liability,  and  that  the  notion 
thus  started  was  afterwards  extended  to  other  cases  of  simple 
contract.  Whether  the  objections  to  the  analogy  and  to  the 
whole  rule  were  duly  considered  or  not,  it  might  be  urged, 
there  is  no  connection  other  than  a  purely  dramatic  one  be- 
tween the  law  of  agency  in  torts  and  in  contracts,  or  between 
the  fact  of  agency  and  the  rule,  and  here,  as  there,  nothing 
more  is  to  be  found  than  a  possibly  wrong  conclusion  from 
the  general  postulates  of  the  department  of  law  concerned. 

Ratification,  again,  as  admitted  by  us,  the  argument  would 
continue,  merely  shows  that  the  Roman  maxim  "  ratihabitio 
mandato  comparatur  "  has  become  imbedded  in  our  law,  as 
it  has  been  from  the  time  of  Bracton. 

Finally,  the  theory  of  possession  through  servants  would 
be  accounted  for  by  the  servant's  admission  of  his  master's 
present  right  to  deal  with  the  thing  at  will,  and  the  absence 

1  Parke,  B.,  in  Sharrod  v.  London  &  N.  W.  Ry.  Co.,  4  Exch.  580,  585 
(1849) ;  1  Austin,  Jurisprudence,  Lect.  26,  3d  ed.,  p.  513.  Cf.  The  Com- 
mon Law,  15,  16. 

2Dansey  v.  Richardson,  3  El.  &  Bl.  144,  161. 

3Scrimshire  v.  Alderton,  2  Strange,  1182  (H.  16  G.  II).  Cf.  Gurratt 
v.  Cullum  (T.  9  Anne,  B.  R.),  stated  in  Scott  v.  Surman,  Willes,  400,  at 
p.  405  (H.  16  G.  II.),  and  in  Buller,  N.  P.  42. 


63.     HOLMES:   HISTORY  OF  AGENCY       373 

of  any  claim  or  intent  to  assert  a  claim  on  his  part,  coupled 
with  the  presence  of  such  a  claim  on  the  part  of  the  master. 

But  the  foregoing  reasoning  is  wholly  inadequate  to  jus- 
tify the  various  doctrines  mentioned,  as  I  have  shown  in  part 
and  as  I  shall  prove  in  detail  hereafter.  And  assuming  the 
inadequacy  to  be  proved,  it  cannot  but  strike  one  as  strange- 
that  there  should  run  through  all  branches  of  the  law  a  ten- 
dency to  err  in  the  same  direction.  If,  as  soon  as  the  relation 
of  master  and  servant  comes  in,  we  find  the  limits  of  liability 
for,  or  gain  by,  others'  acts  enlarged  beyond  the  scope  of  the 
reasons  offered  or  of  any  general  theory,  we  not  only  have 
good  ground  for  treating  that  relation  separately,  but  we 
fairly  may  suspect  that  it  is  a  cause  as  well  as  a  concomitant 
of  the  observed  effects. 

Looking  at  the  whole  matter  analytically  it  is  easy  to  see 
that  if  the  law  did  identify  agents  with  principals,  so  far  as 
that  identification  was  carried  the  principal  would  have  the 
burden  and  the  benefit  of  his  agent's  torts,  contracts,  or 
possession.  So,  framing  a  historical  hypothesis,  if  the  start- 
ing-point of  the  modern  law  is  the  patria  potestas,  a  little 
study  will  show  that  the  fiction  of  identity  is  the  natural 
growth  from  such  a  germ. 

There  is  an  antecedent  probability  that  the  patria  potestas 
has  exerted  an  influence  at  least  upon  existing  rules.  I  have 
endeavored  to  prove  elsewhere  that  the  unlimited  liability  of 
an  owner  for  the  torts  of  his  slave  grew  out  of  what  had  been 
merely  a  privilege  of  buying  him  off  from  a  surrender  to 
the  vengeance  of  the  offended  party,  in  both  the  early  Roman 
and  the  early  German  law.  I  have  shown,  also,  how  the  un- 
limited liability  thus  established  was  extended  by  the  praetor 
in  certain  cases  to  the  misconduct  of  free  servants.1  Of 
course  it  is  unlikely  that  the  doctrines  of  our  two  parent 
systems  should  have  been  without  effect  upon  their  offspring, 
the  common  law. 

The  Roman  law,  it  is  true,  developed  no  such  universal 
doctrines  of  agency  as  have  been  worked  out  in  England. 
Only  innkeepers  and  shipowners  (nautae,  caupones,  stabu- 
larii)  were  made  answerable  for  the  misconduct  of  their  free 

JThe  Common  Law.  9,  15-20. 


374  VI.     CONTRACTS 

servants  by  the  praetor's  edict.  It  was  not  generally  possible 
to  acquire  rights  or  to  incur  obligations  through  the  acts  of 
free  persons. l  But,  so  far  as  rights  of  property,  possession, 2 
or  contract 3  could  be  acquired  through  others  not  slaves, 
the  law  undoubtedly  started  from  slavery  and  the  patrla 
poteftas. 

It  will  be  easy  to  see  how  this  tended  toward  a  fictitious 
identification  of  agent  with  principal,  although  within  the 
limits  to  which  it  confined  agency  the  Roman  law  had  little 
need  and  made  little  use  of  the  fiction.  Ulpian  says  that  the 
act  of  the  family  cannot  be  called  the  act  of  the  paterfami- 
lias unless  it  is  done  by  his  wish.4  But  as  all  the  family 
rights  and  obligations  were  simply  attributes  of  the  persona 
of  the  family  head,  the  summary  expression  for  the  members 
of  the  family  as  means  of  loss  or  gain  would  be  that  they 
sustained  that  persona,  pro  hac  vice.  For  that  purpose  they 
were  one  with  the  paterfamilias.  Justinian's  Institutes  tell 
us  that  the  right  of  a  slave  to  receive  a  binding  promise  is 
derived  ex  persona  domini.  6  And  with  regard  to  free  agents, 
the  commentators  said  that  in  such  instances  two  persons 
were  feigned  to  be  one.6 

Such  a  formula,  of  course,  is  only  derivative.  The  fiction 
is  merely  a  convenient  way  of  expressing  rules  which  were 
arrived  at  on  other  grounds.  The  Roman  praetor  did  not 
make  innkeepers  answerable  for  their  servants  because  "  the 
act  of  the  servant  was  the  act  of  the  master,"  any  more  than 
because  they  had  been  negligent  in  choosing  them.  He  did 
so  on  substantive  grounds  of  policy  —  because  of  the  special 
confidence  necessarily  reposed  in  innkeepers.  So  when  it 
was  held  that  a  slave's  possession  was  his  owner's  possession, 
the  practical  fact  of  the  master's  power  was  at  the  bottom 
of  the  decision. 7 

But  when  such  a  formula  is  adopted,  it  soon  acquires  an 

1  Tnst.  2,  9,  §  5;  D.  44,  7,  11 ;  D.  45,  1.  126,  §  2. 
18  Inst.  2,  9,  esp.  §§  4,  5.    Cf.  D.  41,  1,  53. 
8  Inst.  3,  17;  D.  41,  1,  53;  D.  45,  1,  38,  §  17. 
4  D.  43,  16,  1,  §§  11-13. 
6  Inst.  3,  17,  pr.  18,  in  the  older  editions. 

6  D.  45,  1,  38,  §  17,  Elzevir  ed.  Gothofred.  note  74.  Cf.  D.  44,  2,  4, 
note  17. 

'The  Common  Law,  228. 


63.     HOLMES:   HISTORY  OF  AGENCY       375 

independent  standing  of  its  own.  Instead  of  remaining  only 
a  short  way  of  saying  that  when  from  policy  the  law  makes 
a  master  responsible  for  his  servant,  or  because  of  his  power 
gives  him  the  benefit  of  his  slave's  possession  or  contract,  it 
treats  him  to  that  extent  as  the  tort-feasor,  possessor,  or  con- 
tractee,  the  formula  becomes  a  reason  in  itself  for  making  the 
master  answerable  and  for  giving  him  rights.  If  "  the  act 
of  the  servant  is  the  act  of  the  master,"  or  master  and  servant 
are  "  considered  as  one  person,"  then  the  master  must  pay 
for  the  act  if  it  is  wrongful,  and  has  the  advantage  of  it  if  it 
is  right.  And  the  mere  habit  of  using  these  phrases,  where 
the  master  is  bound  or  benefited  by  his  servant's  act,  makes 
it  likely  that  other  cases  will  be  brought  within  the  penumbra 
of  the  same  thought  on  no  more  substantial  ground  than  the 
way  of  thinking  which  the  words  have  brought  about. 

I  shall  examine  successively  the  English  authorities  with 
regard  to  agency  in  tort,  contract,  ratification,  and  posses- 
sion. But  some  of  those  authorities  are  of  equal  importance 
to  every  branch  of  the  proposed  examination,  and  will  prove 
in  advance  that  the  foregoing  remarks  are  not  merely  hypo- 
thetical. I  therefore  begin  with  citations  sufficient  to  estab- 
lish that  family  headship  was  recognized  as  a  factor  in  legal 
rights  and  duties ;  that  this  notion  of  headship  was  extended 
by  analogy  so  as  to  cover  the  relation  of  a  master  to  freemen 
filling  a  servile  place  for  the  time  being,  and  that  the  rela- 
tions thus  embraced  were  generalized  under  the  misleading 
fiction  of  identity. 

The  familia,  Bracton  says,  embraces  "  those  who  are  re- 
garded in  the  light  of  serfs,  such  as,  &c.  So,  too,  as  well 
freemen  as  serfs,  and  those  over  whom  one  has  the  power 
of  command."  1 

In  West's  Symboleography,2  a  work  which  was  published 
towards  the  beginning  of  the  reign  of  James  L,  and  which, 
though  mainly  a  form  book,  gives  several  glimpses  of  far- 
reaching  insight,  we  read  as  follows :  — 

*"Et  etiam  familiae  appellatio  eos  complectitur  qui  loco  servorum 
habentur,  sicut  sunt  mercenarii  et  conductitii.  Item  tarn  liberi  quam 
servi,  et  quibus  poterit  imperari."  Bract.,  fol.  171  b. 

'Lib.  I.,  Sect.  3,  ad  fin.    "Of  the  Fact  of  Man." 


376  VI.     CONTRACTS 

"  The  person  is  he  which  either  agreeth  or  offendeth,  and 
beside  him  none  other. 

"  And  both  may  be  bound  either  mediately,  or  immediately. 

'"  Immediately,  if  he  which  is  bound  doe  agree. 

"  Mediately,  when  if  he,  which  by  nature  differeth  from  him, 
but  not  by  law,  whereby  as  by  some  bond  he  is  fained  to  be  all 
one  person,  doth  contract,  or  offend,  of  which  sort  in  some  cases 
be  those  which  be  in  our  power,  as  a  wife,  a  bondman,  servant, 
;a  factor,  an  Attourney,  or  Procurator,  exceeding  their  authority." 

Here  we  see  that  tbe  patria  potestas  is  the  substantive 
ground,  that  it  is  extended  to  cover  free  agents,  who  are  not 
even  domestic  servants,  and  that  it  finds  its  normal  expres- 
sion in  the  fiction  of  identity. 

So,  at  the  beginning  of  the  next  reign,  it  was  said  that  an 
action  for  hire,  due  to  the  negligence  of  a  wife,  or  servant, 
lay  "  vers  patrem  familias."1  The  extension  of  the  liability, 
as  shown  by  West,  is  sometimes  expressed  in  later  books  by 
saying  tbat  it  is  not  confined  to  cases  where  the  party  stands 
in  the  relation  of  paterfamilias  to  the  wrong-doer ; 2  but  this 
only  means  that  the  rule  extends  to  other  servants  besides 
domestic  servants,  and  admits  the  analogy  or  starting-point. 3 

Every  one  is  familiar  with  the  fiction  as  applied  to  married 
women.  The  early  law  dealt  with  married  women  on  the 
footing  of  servants.  It  called  both  wives  and  servants  chat- 
tels. 4  The  wife  was  said  to  be  in  the  nature  of  a  servant,5 
and  husband  and  wife  were  only  one  person  in  law. 6  So  far 
was  this  identification  carried,  so  far  was  the  persona  of  the 
wife  swallowed  up  in  and  made  part  of  her  husband's,  that 
whereas,  in  general,  assigns  could  not  vouch  upon  a  warranty 
unless  they  were  expressly  mentioned  in  it, 7  a  busband  could 
always  vouch  upon  a  warranty  made  to  his  wife  before  mar- 

1  Shelley  &  Barr's  Case,  1  Roll.  Abr.  2,  pi.  7  (M.  1  Car.  I.). 

*Bac.  Abr.,  Master  and  Servant,  K.;  Smith's  Master  &  Servant,  3d 
ed.,  260. 

'Laugher  v.  Pointer,  5  B.  &  C.  547,  554  (1826).  Cf.  Bush  v.  Stein- 
man,  1  Bos.  &  P.  404  (1799). 

*Y.  B.  19  H.  VI.  31,  pi.  59;  2  Roll.  Abr.  546  (D). 

61  Roll.  Abr.  2,  pi.  7. 

6 Dial,  de  Scaccario  II.,  c.  18;  Bract,  fol.  429  6;  Y.  B.  22  H.  VI.  38, 
pi.  6;  Litt.  §§  168,  191;  3  Salk.  46;  Com.  Dig.  Baron  $  Feme  (-D);  1  Bl. 
Comm.  442. 

1  The  Common  Law,  375,  n.  2,  401,  n.  1. 


63.     HOLMES:   HISTORY  OF  AGENCY       377 

riage.  By  marriage,  as  was  said  in  Simon  Simeon's  case 
"  it  vested  in  the  person  of  the  husband."  That  is  to  say, 
although  what  actually  happened  was  that  the  right  to  en- 
force a  contract  was  transferred  to  a  stranger,  in  theory  of 
law  there  was  no  transfer,  because  the  stranger  had  become 
the  same  person  as  the  contractee. l 

Of  course  the  identification  between  husband  and  wife,  al- 
though by  no  means  absolute,  was  far  more  complete  than 
that  between  master  and  menial  servant,  just  as  in  the  latter 
case  it  went  farther  than  in  that  of  an  agent  employed  for 
some  particular  transaction.  Even  in  the  case  of  villeins, 
while  the  lord  might  take  advantage  of  their  possession  or 
their  title,  he  could  not  take  advantage  of  contracts  or  war- 
ranties made  to  them. 2  But  the  idea  and  its  historical  start- 
ing-point were  the  same  throughout.  When  considering  the 
later  cases,  the  reader  will  remember  that  it  is  incontroverti- 
bly  established  that  a  wife  was  on  the  footing  of  a  servant, 
that  the  consequences  of  the  relation  were  familiarly  ex- 
pressed in  terms  of  the  fiction  of  identity,  and,  therefore,  that 
the  applicability  of  this  fiction  to  the  domestic  relations  gen- 
erally must  have  been  well  known  to  the  courts  long  before 
the  date  of  the  principal  decisions,  which  it  will  be  my  task 
to  interpret. 

I  now  take  up  the  liability  of  a  master  for  the  torts  of  his 
servant  at  common  law.  This  has  been  supposed  in  England 
to  have  been  manufactured  out  of  the  whole  cloth,  and  intro- 
duced by  the  decision  in  Michael  v.  Alestree3  in  the  reign  of 
Charles  II.  In  view  of  the  historical  antecedents  it  would  be 
very  extraordinary  if  such  a  notion  was  correct.  I  venture 
to  think  that  it  is  mistaken,  and  that  the  principle  has  gradu- 
ally grown  to  its  present  form  from  beginnings  of  the  earliest 
date.  I  also  doubt  whether  Michael  v.  Alestree  is  an  example 

1  Simon  Simeon's  Case,  Y.  B.  30  Ed.  III.  14;  s.  c.  ib.  6;  29  Ed.  III. 
48.  I  have  seen  no  reason  to  change  the  views  expressed  in  The  Common 
Law,  Lecture  XL,  to  meet  the  suggestions  of  Prof.  Ames  in  3  Harv. 
Law  Rev.  388,  n.  6.  Undoubtedly  the  letter  of  credit  was  known  in  the 
reign  of  Henry  III.  1  Royal  Letters,  Hen.  III.  315.  But  the  modern 
theory  of  contract  applied  to  letters  of  credit,  in  my  opinion,  was  not 
the  theory  on  which  assigns  got  the  benefit  of  a  warranty.  Norcross  v. 
James,  140  Mass.  188. 

2Y.  B.  22,  Ass.  pi.  27,  fol.  93;  Co.  Lit.  117  a. 

8  2  Levinz,  172;  s.  c.  3  Keble,  650,  1  Ventris,  295  (T.  28  Car.  II.). 


378  VI.     CONTRACTS 

for  the  principle  in  question.  It  rather  seems  to  me  a  case 
in  which  the  damage  complained  of  was  the  natural  conse- 
quence of  the  very  acts  commanded  by  the  master,  and  which, 
therefore,  as  I  have  said  above,  needs  no  special  or  peculiar 
doctrine  to  account  for  it.  It  was  an  action  on  the  case 
against  master  and  servant; 

"  for  that  the  Defendants  in  Lincoln's-Inn  Fields,  a  Place 
where  People  are  always  going  to  and  fro  about  their  Business, 
brought  a  Coach  with  two  ungovernable  Horses,  fy  eux  improvide 
incaute  $  absque  debita  consideratione  ineptitudinis  loci  there 
drove  them  to  make  them  tractable  and  fit  them  for  a  Coach; 
and  the  Horses,  because  of  their  Ferocity,  being  not  to  be  man- 
aged, ran  upon  the  Plaintiff,  and  **  wounded  him:  The  master 
was  absent,"  but  both  defendants  were  found  guilty.  "  It  was 
moved  in  Arrest  of  Judgment,  That  no  Sciens  is  here  laid  of  the 
Horses  being  unruly,  nor  any  Negligence  alledged,  but  e  contra, 
That  the  Horses  were  ungovernable:  Yet  judgment  was  given 
for  the  Plaintiff,  for  it  is  alledged  that  it  was  improvide  fy  absque 
debita  consideratione  ineptitudinis  loci;  and  it  shall  be  intended 
the  Master  Sent  the  servant  to  train  the  Horses  there."  * 

In  other  words,  although  there  was  no  negligence  averred 
in  the  mode  of  driving  the  horses  at  the  instant  of  the  acci- 
dent, but,  e  contra,  that  the  horses  were  ungovernable,  which 
was  the  scope  of  the  defendant's  objection,  there  was  negli- 
gence in  driving  ungovernable  horses  for  the  purpose  of 
breaking  them  in  a  public  place,  and  that  was  averred,  and 
was  averred  to  have  been  done  negligently.  Furthermore,  it 
was  averred  to  have  been  done  negligently  by  the  defendant, 
which  was  a  sufficient  allegation  on  its  face,  and  would  be 
supported  by  proof  that  the  defendant,  knowing  the  charac- 
ter of  the  horses,  ordered  his  servant  to  break  them  in  a  pub- 
lic resort.  Indeed,  the  very  character  of  the  command  (to 
break  horses)  imports  sufficient  knowledge;  and  when  a  com- 
mand is  given  to  do  the  specified  act  complained  of,  it  always 
may  be  laid  as  the  act  of  the  party  giving  the  order. 2 

When  I  come  to  investigate  the  true  history  of  this  part  of 
the  law,  notwithstanding  the  likelihood  which  I  have  pointed 
out  that  it  was  a  continuation  and  development  of  what  I 

*Q  Lev.  172. 
2  Sup.,  p.  346,  n. 


68.     HOLMES:   HISTORY  OF  AGENCY       379 

have  traced  in  one  or  both  of  the  parent  systems,  I  must  admit 
that  I  am  met  with  a  difficulty.  Even  in  Bracton,  who  writes 
under  the  full  influence  of  the  Roman  law,  I  have  failed  to 
find  any  passage  which  distinctly  asserts  the  civil  liability 
of  masters  for  their  servants'  torts,  apart  from  command  or 
ratification.  There  is  one  text,  to  be  sure,  which  seems  cor- 
rupt as  it  stands  and  which  could  be  amended  by  con j  ecture  so 
as  to  assert  it.  But  as  the  best  manuscripts  in  Lincoln's 
Inn  substantially  confirm  the  printed  reading,  conjecture 
would  be  out  of  place.1 

On  the  other  hand,  I  do  find  an  institution  which  may  or 
may  not  have  been  connected  with  the  Anglo-Saxon  laws 
touching  the  responsibility  of  masters,  but  which,  at  any 
rate,  equally  connects  liability  of  a  different  sort  with  family 
headship. 

At  about  the  time  of  the  Conquest,  what  was  known  as 
the  Frithborh,  or  frankpledge,  was  either  introduced  or  grew 
greatly  in  importance.  Among  other  things,  the  master 
was  made  the  pledge  of  his  servants,  to  hand  them  over  to 
justice  or  to  pay  the  fine  himself.  "  Omnes  qui  servientes 
habent,  eorum  sint  francplegii,"  was  the  requirement  of 
William's  laws.  Bracton  quotes  the  similar  provisions  of 
Edward  the  Confessor,  and  also  says  that  in  some  counties 
a  man  is  held  to  answer  for  the  members  of  his  family. 2  This 
quasi-criminal  liability  of  master  for  man  is  found  as  late 
as  Edward  II.  alongside  of  the  other  rules  of  frankpledge, 
with  which  this  discussion  is  not  concerned.  Fitzherbert's 
Abridgment 8  reads  as  follows :  "  Note  that  if  the  servant 
(serviens)  of  any  lord  while  in  his  service  (in  servicio  suo 
existens)  commits  a  felony  and  is  convicted,  although  after 
the  felony  (the  master)  has  not  received  him,  he  is  to  be 
amerced,  and  the  reason  is  because  he  received  him  '  in 
bourgh.'  "  Bracton,  in  like  manner,  says  that  the  master 
is  bound  "  emendare "  for  certain  torts  of  his  servant,4 
meaning,  as  I  take  it,  to  pay  a  fine,  not  damages. 

1  Bract.,  fol.  115  a. 

2"Tenebitur  ille,  in  quibusdam  partibus,  de  cujus  fuerint  familia  et 
manupastu."  Bract.,  fol.  124  6;  I.  e.,  for  the  persons  under  his  patriot 
yotestas.  LL.  Gul.  I.  c.  52;  LL.  Edw.  Conf.  c.  21  (al.  20). 

*Corone,  pi.  428  (8  Ed.  II.  It.  cane.). 

•Bract.,  fol.  158  b,  171  a,  b,  172  6.    Cf.  Ducange,  " Emenda." 


380  VI.     CONTRACTS 


But  true  examples  of  the  peculiar  law  of  master  and  serv- 
ant are  to  be  found  before  Edward  II.  The  maxim  re- 
sponded superior  has  been  applied  to  the  torts  of  inferior 
officers  from  the  time  of  Edward  I.  to  the  present  day.  Thus 
that  chapter  of  the  Statute  of  Westminster  the  Second,1 
which  regulates  distresses  by  sheriffs  or  bailiffs,  makes  the 
officer  disregarding  its  provisions  answerable,  and  then  con- 
tinues, "  si  non  habeat  ballivus  unde  reddat  reddat  superior 
suus."  So  a  later  chapter  of  the  same  statute,  after  sub- 
jecting keepers  of  jails  to  an  action  of  debt  for  escapes  in 
certain  cases,  provides  that  if  the  keeper  is  not  able  to  pay, 
his  superior,  who  committed  the  custody  of  the  jail  to  him, 
shall  be  answerable  by  the  same  writ.2  So,  again,  the  eight- 
eenth chapter  of  the  Articuli  super  Chartas  3  gives  a  writ 
of  waste  to  wards,  for  waste  done  in  their  lands  in  the  king's 
hands  by  escheators  or  sub-escheators,  "  against  the  es- 
cheator  for  his  act,  or  the  sub-escheator  for  his  act  (if  he 
have  whereof  to  answer),  and  if  he  have  not,  his  master  shall 
answer  ('  si  respoigne  son  sovereign  ')  by  like  pain  concern- 
ing the  damages,  as  is  ordained  by  the  statute  for  them  that 
do  waste  in  wardships."  A  case  of  the  time  of  Edward  II. 
interpreting  the  above  statute  concerning  jailers  is  given 
in  Fitzherbert's  Abridgment, 4  and  later  similar  cases  are 
referred  to  in  Coke's  Fourth  Institute.  5 

It  may  be  objected  that  the  foregoing  cases  are  all  statu- 
tory. But  the  same  principle  seems  to  have  been  applied, 
apart  from  any  statute  except  that  which  gave  counties  the 
power  to  elect  coroners,  to  make  the  county  of  Kent  answer- 
able to  the  king  for  a  coroner's  default,  as  well  as  in  other 
instances  which  will  be  mentioned  later.  6  Moreover,  early 

1  St.  13  Ed.  I.,  St.  I,  c.  2,  §  3. 

2c.  11,  ad  finem.  "  Et  si  custos  gaole  non  habeat  per  quod  justicietur 
vel  unde  solvat  respondeat  superior  suus  qui  custodiam  hujusmodi  gaole 
sibi  commisit  per  idem  breve." 

3  St.  28  Ed.  I.,  c.  18. 

'Dette,  pi.  172  (M.  11  Ed.  II.). 

6  4  Inst.  114;  "45  E.  3,  9,  10.  Prior  datife  et  removeable  suffer  es- 
chape,  respondeat  superior.  14  E.  4.  Pur  insufficiency  del  bailie  dun 
libertie  respondeat  dominus  libertatis.  Vid.  44  E.  3,  13;  50  E.  3,  5; 
14  H.  4,  22;  11  H.  6,  52;  30  H.  6,  32." 

6  See  the  writ  of  H.  14  Ed.  III.  ex  parte  Remem.  Regis,  rot.  9,  in 
Scacc.  in  4  Inst.  114,  and  less  fully  in  2  Inst.  175.  "  Et  quia  ipse  coro- 
nator  electus  erat  per  comitatum  juxta  formara  statuti,  etc.  ita  quod  in 


63.     HOLMES:   HISTORY  OF  AGENCY       381 

statutes  are  as  good  evidence  of  prevailing  legal  conceptions 
as  decisions  are. 

But  again  it  may  be  objected  that  there  were  special 
grounds  of  public  policy  for  requiring  those  who  disposed 
of  public  offices  of  profit  to  appoint  persons  "  for  whom  they 
will  answer  at  their  peril,"  in  the  words  of  another  similar 
statute  as  to  clerks  in  the  King's  Courts.1  It  might  be  said 
with  truth  that  the  responsibility  was  greater  than  in  the 
case  of  private  servants,  and  it  might  be  asked  whether 
respondeat  superior  in  its  strict  sense  is  not  an  independent 
principle  which  is  rather  to  be  deemed  one  of  the  causes  of 
the  modern  law,  than  a  branch  from  a  common  stem.  It  cer- 
tainly has  furnished  us  with  one  of  the  inadequate  reasons 
which  have  been  put  forward  for  the  law  as  it  is,  —  that 
somebody  must  be  held  who  is  able  to  pay  the  damages. 

The  weight  of  the  evidence  seems  to  me  to  overcome  these 
objections.  I  think  it  most  probable  that  the  liability  for 
under-officers  was  a  special  application  of  conceptions  drawn 
from  the  family  and  the  power  of  the  family  head  over  his 
servants.  Those  conceptions  were  in  existence,  as  I  have 
shown.  From  a  very  early  date,  under-officers  are  called 
servants  of  their  superior,  as  indeed  it  seems  to  be  implied 
that  they  are,  by  the  word  "  sovereign,9'  or  even  "  superior," 
in  the  statutes  which  have  been  cited.  "  Sovereign  "  is  used 
as  synonymous  with  master  in  Dyer.2  In  the  Y.  B.,  11  Ed- 
ward IV.  1,  pi.  1,  it  is  said,  "  If  I  make  a  deputy,  I  am 
always  officer,  and  he  performs  the  office  in  my  right  and  as 
my  servant ;  "  and  from  that  day  to  this,  not  only  has  the 
same  language  been  repeated,3  but,  as  I  shall  show,  one  of 
the  chosen  fields  for  the  express  use  of  the  fiction  of  identity 
is  the  relation  of  superior  and  under-officer. 

Under  Edward  III.  it  was  held  that  if  an  abbot  has  a  ward- 

defectu  ejusdem  coronatoris  totus  comitatus  ut  elector  et  superior,  etc. 
(tenetur),  habeant  regi  respondere,  praecip  (praeceptum  fuit)  nunc  vie* 
quod  de  terris  et  tenementis  (hominum)  hujusmodi  totius  comitatus  in 
balliva  sua  fieri  fac."  etc.  See  the  other  references  in  4  Inst.  114,  and 
further  Y.  B.  49  Ed.  III.  25,  26,  pi.  3. 

1  St.  2  H.  VI.,  c.  10. 

2  Alford  v.  Eglisfield,  Dyer,  230  b,  pi.  56.     The  passage  will  be  cited 
later  in  dealing  with  factors.     See  also  Y.  B.  27  H.  VIII.  24,  pi.  3. 

»Parkes  v.  Mosse,  Cro.  Eliz.  181  (E.  32  Eliz.);  Wheteley  v.  Stone,  2 
Roll.  Abr.  556,  pi.  14;  s.  c.  Hobart,  180;  1  Bl.  Comm.  345,  346. 


382  VI.     CONTRACTS 

ship,  and  a  co-canon  commits  waste,  the  abbot  shall  be 
charged  by  it,  "  for  that  is  adjudged  the  deed  of  the  abbot."  l 
This  expression  appears  to  me  not  only  to  apply  the  rule 
respondeat  superior  beyond  the  case  of  public  officers,  but 
to  adopt  the  fiction  of  identity  as  a  mode  of  explaining  the 
rule. 

An  earlier  record  of  the  same  reign,  although  it  turned 
on  the  laws  of  Oleron,  shows  that  the  King's  Court  would 
in  some  cases  hold  masters  more  strictly  accountable  for 
their  servants'  torts  than  is  even  now  the  case.  A  ship- 
master was  held  liable  in  trespass  de  bonis  asportatis  for 
goods  wrongfully  taken  by  the  mariners,  and  it  was  said 
that  he  was  answerable  for  all  trespasses  on  board  his  ship.2 

A  nearly  contemporaneous  statute  is  worth  mentioning, 
although  it  perhaps  is  to  be  construed  as  referring  to  the 
fines  which  have  been  mentioned  above,  or  to  other  for- 
feitures, and  not  to  civil  damages.  It  reads,  "  That  no 
merchant  nor  other,  of  what  condition  that  he  be,  shall  lose 
or  forfeit  his  goods  nor  merchandizes  for  the  trespass  and 
forfeiture  of  his  servant,  unless  he  do  it  by  the  command- 
ment or  procurement  of  his  master,  or  that  he  hath  offended 
in  the  office  in  which  his  master  hath  set  him,  or  in  other 
manner,  that  the  master  be  holden  to  answer  for  the  deed  of 
his  servant  by  the  law-merchant,  as  elsewhere  is  used." 3 
The  statute  limits  a  previously  existing  liability,  but  leaves 
it  open  that  the  master  still  shall  be  holden  to  answer  for  the 
deed  of  his  servant  in  certain  cases,  including  those  of  the 
servant's  offending  in  the  office  in  which  the  master  hath 
set  him.  It  is  dealing  with  merchants,  to  be  sure,  but  is 
another  evidence  that  the  whole  modern  law  is  of  ancient 
extraction. 

It  must  be  remembered,  however,  that  the  cases  in  which 
the  modern  doctrines  could  have  been  applied  in  the  time  of 
the  Year  Books  were  exceedingly  few.  The  torts  dealt  with 
by  the  early  law  were  almost  invariably  wilful.  They  were 
either  prompted  by  actual  malevolence,  or  at  least  were  com- 

»Y.  B.  49  Ed.  III.  25,  26,  pi.  3. 

2  Brevia  Regis  in  Turr.  London,  T.  24  Ed.  III.,  No.  45,  Bristol,  printed 
in  Molloy,  Book  2,  ch.  3,  §  16. 

3  St.  27  Ed.  III.,  St.  2,  cap.  19. 


63.     HOLMES:   HISTORY  OF  AGENCY       383 

mitted  with  full  foresight  of  the  ensuing  damage.1  And  as 
the  judges  from  an  early  day  were  familiar  with  the  dis- 
tinction between  acts  done  by  a  man  on  his  own  behalf  and 
those  done  in  the  capacity  of  servant,2  it  is  obvious  that 
they  could  not  have  held  masters  generally  answerable  for 
such  torts  unless  they  were  prepared  to  go  much  beyond  the 
point  at  which  their  successors  have  stopped. 3  Apart  from 
frauds  4  and  intentional  trespasses  against  the  master's  will  5 
I  only  know  of  one  other  case  in  the  Year  Books  which  is 
important  to  this  part  of  my  subject.  That,  however,  is  very 
important.  It  is  the  case  concerning  fire, 6  which  was  the 
precedent  relied  on  by  Lord  Holt  in  deciding  Turberville  v. 
Stampe, 7  which  in  its  turn  has  been  the  starting-point  of  the 
later  decisions  on  master  and  servant. 8  I  therefore  shall 
state  it  at  length. 

Beaulieu  sued  Finglam,  alleging  that  the  defendant  so  negli- 
gently guarded  his  fire  that  for  want  of  due  guard  of  the  same 
the  plaintiff's  houses  and  goods  were  burned.  Markham  [J.], 
A  man  is  held  to  answer  for  the  act  of  his  servant  or  of  his  guest 
(hosteller)  in  such  case;  for  if  my  servant  or  my  guest  puts  a 
candle  on  a  beam,  (en  un  pariet,)  and  the  candle  falls  in  the 
straw,  and  burns  all  my  house,  and  the  house  of  my  neighbor 
also,  in  this  case  I  shall  answer  to  my  neighbor  for  the  damage 
which  he  has,  quod  concedebatur  per  curiam.  Horneby  [of  coun- 
sel], Then  he  should  have  had  a  writ,  Quare  domum  suam  arde- 
bat  vel  exarsit.  Hull  [of  counsel],  That  will  be  against  all  rea- 
son to  put  blame  or  default  in  a  man  where  there  is  (il  ad)  none 

1  The  Common  Law,  3,  4,  101-103.    I  do  not  mean  as  a  matter  of  ar- 
ticulate theory,  but  as  a  natural  result  of  the  condition  of  things.     As 
to  very  early  principles  of  liability  see  now  Dr.  B runner's  most  learned 
and  able  discussion  in  Sitzungsberichte  der  kon.  Preuss.  Akademie  der 
Wissensch.   xxxv.,   July   10,    1890,   iiber    absichtlose    Missethat   im    Alt- 
deutschen   Strafrechte.      [Abstracted   in   Essay   No.   66   of  this   Collec- 
tion.—EDS.]     Some  of  the  cases  mentioned  by  him,  such  as  Beowulf, 
2435,  had  come  to  my  notice. 

2  See,  e.  g.,  Gascoigne  in  Y.  B.  7  H.  IV.  34,  35,  pi.  1. 
8Cf.  Dr.  &  Stud.  Dial.  2,  c.  42  (A.  D.  1530). 

4Y.  B.  9  H.  VI.  53,  pi.  37. 

6  Y.  B.  13  H.  VII.  15,  pi.  10.    Cf.  Keilway,  3  b,  pi.  7  (M.  12  H.  VII.). 

6Y.  B.  2  H.  IV.  18,  pi.  6. 

'Carthew,  425,  shows  that  the  Year  Book  was  cited.  And  the  lan- 
guage of  Lord  Holt,  reported  in  1  Ld.  Raym.  264,  shows  that  he  had 
it  before  his  mind. 

8Brucker  v.  Fromont,  6  T.  R.  659;  M'Manus  v.  Crickett,  I  East,  106; 
Patten  v.  Rea,  2  C.  B.  N.  s.  606. 


384  VI.     CONTRACTS 

in  him;  for  negligence  of  his  servants  cannot  be  called  his  feas- 
ance.  Thirning  [C.  J.],  If  a  man  kills  (iue  ou  occist)  a  man 
by  misfortune  he  will  forfeit  his  goods,  and  he  must  have  his 
charter  of  pardon  de  grace.  Ad  quod  Curia  concordat.  Mark- 
ham,  I  shall  answer  to  my  neighbor  for  him  who  enters  my  house 
by  my  leave  or  my  knowledge,  or  is  entertained  (hoste)  by  me  or 
by  my  servant,  if  he  does,  or  any  one  of  them  does  such  a  thing, 
as  with  a  candle  {come  de  chandel),  or  other  thing,  by  which 
f easance  the  house  of  my  neighbor  is  burned ;  but  if  a  man  from 
outside  my  house,  against  my  will,  puts  the  fire  in  the  straw  of 
my  house,  or  elsewhere,  by  which  my  house  is  burned  and  also  the 
houses  of  my  neighbor  are  burned,  for  that  I  shall  not  be  held 
to  answer  to  them,  etc.,  for  this  cannot  be  said  to  be  through  ill- 
doing  {male)  on  my  part,  but  against  my  will."  Horneby  then 
said  that  the  defendant  would  be  ruined  if  this  action  were  main- 
tained against  him.  "  Thirning  [C.  J.],  What  is  that  to  us?  It 
is  better  that  he  should  be  undone  wholly,  than  that  the  law 
should  be  changed  for  him."  *  Then  they  were  at  issue  that  the 
plaintiff's  house  was  not  burned  by  the  defendant's  fire. 

The  foregoing  case  affords  some  ground  for  the  argu- 
ment which  was  vainly  pressed  in  Turberville  v.  Stampe, 
that  the  liability  was  confined  to  the  house.2  Such  a  limit 
is  not  unsupported  by  analogy.  By  the  old  law  a  servant's 
custody  of  his  master's  things  was  said  to  be  the  master's 
possession  within  his  house,  but  the  servant's  on  a  journey 
outside  of  it.3  So  an  innkeeper  was  liable  for  all  goods 
within  the  inn,  whether  he  had  the  custody  of  them  or  not.4 
So  in  the  case  which  has  been  mentioned  above,  a  master 
was  said  to  be  responsible  for  the  acts  of  his  servants  on 
board  ship.  It  will  be  noticed  also  that  the  responsibility 
of  a  householder  seems  to  be  extended  to  his  guests.  From 
that  day  to  this  there  have  been  occasional  glimpses  of  a 
tendency  to  regard  guests  as  part  of  the  familia  for  the  pur- 
poses of  the  law.5  And  in  view  of  the  fact  that  by  earlier 
law  if  a  guest  was  allowed  to  stop  in  the  house  three  days, 
he  was  called  hoghenehine  or  agenhine,  that  is,  own  hine  or 
servant  of  the  host,  it  may  be  thought  that  we  have  here  an 

1 Y.  B.  2  H.  IV.  18,  pi.  6. 

2  See  also  1  Bl.  Comm.  431 ;  Noy's  Maxims,  c.  44. 

8  Y.  B.  21  H.  VII.  14,  pi.  21 ;  The  Common  Law,  226. 

4Y.  B.  42  Ass.,  pi.  17,  fol.  260;  42  Ed.  III.  11,  pi.  13. 

6Y.  B.  13  Ed.  IV.  10,  pi.  5;  Southcote  v.  Stanley,  1  H.  &  N.  24T,  250. 


68.     HOLMES:   HISTORY  OF  AGENCY       385 

echo  of  the  frithborh. l  But  with  whatever  limits  and  for 
whatever  occult  causes,  the  responsibility  of  the  head  of  the 
house  for  his  servants  was  clearly  recognized,  and,  it  would 
seem,  the  identification  of  the  two,  notwithstanding  a  state- 
ment by  counsel,  as  clear  as  ever  has  been  made  since,  of  the 
objections  to  the  doctrine. 

The  later  cases  in  the  Year  Books  are  of  wilful  wrongs, 
as  I  have  said,  and  I  now  pass  to  the  subsequent  reports. 
Under  Elizabeth  a  defendant  justified  taking  sheep  for  toll 
under  a  usage  to  have  toll  of  strangers'  sheep  driven  through 
the  vill  by  strangers,  and  if  he  were  denied  by  such  stranger 
driving  them,  to  distrain  them.  The  defendant  alleged  that 
the  plaintiff,  the  owner  of  the  sheep,  was  a  stranger,  but  did 
not  allege  that  the  driver  was.  But  the  court  sustained  the 
plea,  saying,  "  The  driving  of  the  servant  is  the  driving  of 
the  master ;  and  if  he  be  a  foreigner,  that  sufficeth."  2 

I  leave  on  one  side  certain  cases  which  often  have  been  cited 
for  the  proposition  that  a  master  is  chargeable  for  his  serv- 
ant's torts,  because  they  may  be  explained  otherwise  and 
make  no  mention  of  it.3 

1  Bract.,  fol.  124  6;  LL.  Gul.  I.,  c.  48;  LL.  Edw.  Conf.,  c.  23. 

To  the  above  illustrations  of  a  man's  responsibility  within  his  house, 
add  that  of  a  vassal  for  attempts  on  the  chastity  of  his  lord's  daughter 
or  sister  "  tant  com  elle  est  Damoiselle  en  son  Hostel,"  in  Ass.  Jerusalem, 
ch.  205,  217,  ed.  1690.  The  origin  of  the  liability  of  innkeepers  never 
has  been  studied,  so  far  as  I  know.  Beaumanoir,  c.  36,  seems  to  con- 
fine the  liability  to  things  intrusted  to  the  innkeeper,  and  to  limit  it 
somewhat  even  in  that  case,  and  to  suggest  grounds  of  policy.  The 
English  law  was  more  severe,  and  put  it  on  the  ground  that  the  guest 
for  the  time  had  come  to  be  under  the  innkeeper's  protection  and 
safety.  42  Ass.,  pi.  17,  fol.  260.  A  capias  was  refused  on  the  ground 
that  the  defendant  was  not  in  fault,  but  an  elegit  was  granted.  42  Ed. 
III.  11,  pi.  13.  Notwithstanding  the  foregoing  reason  given  for  it,  the 
liability  was  confined,  at  an  early  date,  to  those  exercising  a  common 
calling  (common  hostler).  11  Hen.  IV.  45,  pi.  18.  See  The  Common 
Law,  183-189,  203.  See  further,  22  Hen.  VI.  21,  pi.  38;  ib.  38,  pi.  8. 
And  note  a  limitation  of  liability  in  cases  of  taking  by  the  king's 
enemies,  similar  to  that  of  bailees.  Plowden,  9,  and  note  in  margin; 
The  Common  Law,  177,  182,  199,  201.  The  references  to  the  custom 
of  England,  or  to  the  lex  terrce,  are  of  no  significance.  The  Common 
Law,  188.  See  further,  the  titles  of  Glanville  and  Bracton.  Other 
citations  could  be  given  if  necessary. 

2  Smith  v.  Shepherd,  Cro.  Eliz.,  710;  M.  41  &  42  Eliz.  B.  R. 

8  The  most  important  is  Lord  North's  case,  Dyer,  161  a  (T.  4  &  5 
Phil.  &  M.) ;  but  there  the  master  was  a  bailee  bound  to  return  at  his 
peril  (cf.  The  Common  Law,  175-179).  In  Dyer,  238  b,  pi.  38  (E.  7 
Eliz.),  a  customer  of  a  port  was  said  to  be  liable  to  the  penalties  for 
a  false  return,  although  he  made  it  through  the  concealment  of  his 


386  VI.     CONTRACTS 

The  next  evidence  of  the  law  to  which  I  refer  is  the  pas- 
sage from  West's  Symboleography  which  was  given  in  full 
at  the  outset,  and  which  gives  the  modern  doctrine  of  agency 
as  well  as  the  fiction  of  identity  in  their  full  development. 
There  are  two  nearly  contemporaneous  cases  in  which  unsuc- 
cessful attempts  were  made  to  hold  masters  liable  for  wilful 
wrongs  of  their  servants,  in  one  for  a  piracy,1  in  the  other 
for  a  fraud.2  They  are  interesting  chiefly  as  showing  that 
the  doctrine  under  discussion  was  in  the  air,  but  that  its 
limits  were  not  definitely  fixed.  The  former  sought  to  carry 
the  rule  respondeat  superior  to  the  full  extent  of  the  early 
statutes  and  cases  which  have  been  referred  to,  and  cited 
the  Roman  law  for  its  application  to  public  affairs.  The 
latter  cites  Doctor  and  Student.  West  also,  it  will  have 
been  noticed,  indicates  Roman  influence. 

Omitting  one  or  two  cases  on  the  liability  of  the  servant, 
which  will  be  mentioned  shortly,  I  come  once  more  to  a  line 
of  authorities  touching  public  officers.  I  have  said  that  al- 
though there  was  a  difference  in  the  degree  of  responsibility, 
under-officers  always  have  been  said  to  be  servants. 

Under  Charles  II.  this  difference  was  recognized,  but  it 
was  laid  down  that  "  the  high  sheriff  and  under-sheriff  is 
one  officer,"  and  on  that  ground  the  sheriff  was  held  charge- 
able.3 Lord  Holt  expressed  the  same  thought:  "What 
is  done  by  the  deputy  is  done  by  the  principal,  and  it  is  the 
act  of  the  principal,"  or,  as  it  is  put  in  the  margin  of  the 
report,  "  Act  of  deputy  may  forfeit  office  of  principal,  be- 
cause it  is  quasi  his  act."4  Later  still,  Blackstone  repeats 
from  the  bench  the  language  of  Charles's  day.  "  There  is 
a  difference  between  master  and  servant,  but  a  sheriff  and 
all  his  officers  are  considered  in  cases  like  this  as  one  per- 
son." So  his  associate  judge,  Gould,  "  I  consider  [the 

deputy.  One  or  both  of  these  cases  are  cited  in  Waltham  v.  Mulgar, 
Moore,  776;  Southern  v.  How,  Popham,  143;  Boson  v.  Sandford,  1 
Shower,  101;  Lane  v.  Cotton,  12  Mod.  472,  489,  etc. 

1  Waltham  v.  Mulgar,  Moore  776   (P.  3  Jac.  I.). 

2  Southern  v.  How,  Cro.  Jac.  468;  s.  c.  Popham,  143;  2  Roll.  Rep.  5, 
26;  Bridgman,  125,  where  the  special  verdict  is  set  forth. 

3Cremer  v.  Humberston,  2  Keble,  352  (H.  19  &  20  Car.  II.). 

4  Lane  v.  Cotton,  1  Salk.  17,  18;  s.  c.  1  Ld.  Raym.  646,  Com.  100  (P. 


63.     HOLMES:   HISTORY  OF  AGENCY       387 

under-sheriff's  clerk]  as  standing  in  the  place  of,  and  rep- 
resenting the  very  persons  of  ...  the  sheriffs  themselves."  * 
Again,  the  same  idea  is  stated  by  Lord  Mansfield :  "  For  all 
civil  purposes  the  act  of  the  sheriff's  bailiff  is  the  act  of  the 
sheriff."  2  The  distinction  taken  above  by  Blackstone  did 
not  prevent  his  saying  in  his  Commentaries  that  under- 
officers  are  servants  of  the  sheriff;3  and  in  Woodgate  v. 
Knatchbull,4  Ashurst,  J.,  after  citing  the  words  of  Lord 
Mansfield,  adds,  "  This  holds,  indeed,  in  most  instances  with 
regard  to  servants  in  general ; "  and  Blackstone  says  the 
same  thing  in  a  passage  to  be  quoted  hereafter. 

Having  thus  followed  down  the  fiction  of  identity  with 
regard  to  one  class  of  servants,  I  must  now  return  once 
more  to  Lord  Holt's  time.  In  Boson  v.  Sandford,5  Eyres, 
J.,  says  that  the  master  of  a  ship  is  no  more  than  a  servant, 
"  the  power  which  he  hath  is  by  the  civil  law,  Hob.  Ill,  and 
it  is  plain  the  act  or  default  of  the  servant  shall  charge  the 
owner."  Again,  in  Turberville  v.  Stampe, 6  Lord  Holt,  after 
beginning  according  to  the  Roman  law  that  "  if  my  servant 
throws  dirt  into  the  highway  I  am  indictable,"  continues, 
"  So  in  this  case,  if  the  defendant's  servant  kindled  the  fire 
in  the  way  of  husbandry  and  proper  for  his  employment, 
though  he  had  no  express  command  of  his  master,  yet  the 
master  shall  be  liable  to  an  action  for  damages  done  to  an- 
other by  the  fire;  for  it  shall  be  intended,  that  the  servant 
had  authority  from  his  master,  it  being  for  his  master's 
benefit."  This  is  the  first  of  a  series  of  cases  decided  by  Lord 
Holt7  which  are  the  usual  starting-point  of  modern  deci- 
sions, and  it  will  be  found  to  be  the  chief  authority  relied  on 
by  cases  which  have  become  leading  in  their  turn. 8  It  there- 

^aunderson  v.  Baker,  3  Wilson,  309  s.  c.  2  Wm.  Bl.  832;  (T.  12  G. 
III.  1772). 

8Ackworth  v.  Kempe,  Douglas,  40,  42  (M.  19  G.  III.  1778). 

81  Bl.  Comm.  345,  346. 

4  2  T.  R.  148,  154  (1787). 

61  Shower,  101,  107   (M.  2  W.  III.). 

6 1  Ld.  Raym.  264  (M.  9  W.  III.) ;  s.  c.  3  Id.  250,  Carthew,  425,  Com. 
32,  1  Salk.  13,  Skinner,  681,  12  Mod.  151,  Comb.  459,  Holt,  9. 

7  Jones  v.  Hart,  2  Salk.  441;  s.  c.  1  Ld.  Raym.  738,  739  (M.  10  W. 
III.);  Middleton  v.  Fowler,  1  Salk.  282  (M.  10  W.  HI.);  Hern  v. 
Nichols,  1  Salk.  289. 

8Brucker  v.   Fromont,  6  T.   R.   659;   M'Manus  v.  Crickett,   1 
106;  Patten  v.  Rea,  2  C.  B.  N.  s.  606  (1857). 


388  VI.     CONTRACTS 

fore  is  interesting  to  note  that  it  only  applied  the  principles 
of  Beaulieu  v.  Finglam,  in  the  Year  Book  2  Henry  IV.,  to  a 
fire  outside  the  house,  that  the  illustration  taken  from  the 
Roman  law  shows  that  Lord  Holt  was  thinking  of  the  re- 
sponsibility of  a  paterfamilias,  and  that  in  another  case 
within  three  years  a  he  made  use  of  the  fiction  of  identity. 

I  may  add,  by  way  of  confirmation,  that  Blackstone,  in 
his  Commentaries,  after  comparing  the  liability  of  the  master 
who  "  hath  the  superintendence  and  charge  of  all  his  house- 
hold "  if  any  of  his  family  cast  anything  out  of  his  house  into 
the  street,  with  that  of  the  Roman  paterfamilias,*  further 
observes  that  the  "  master  may  frequently  be  answerable  for 
his  servant's  misbehavior,  but  never  can  shelter  himself  from 
punishment  by  laying  the  blame  on  his  agent.  The  reason 
of  this  is  still  uniform  and  the  same;  that  the  wrong  done 
by  the  servant  is  looked  upon  in  law  as  the  wrong  of  the 
master  himself."3 

There  is  another  line  of  cases  which  affords  striking  and 
independent  evidence  that  the  law  of  master  and  servant  is 
a  survival  from  slavery  or  other  institution  of  like  effect  for 
the  present  purpose,  and  that  the  identification  of  the  two 
parties  was  carried  out  in  some  cases  to  its  logical  result. 
If  a  servant,  although  a  freeman,  was  treated  for  the  pur- 
poses of  the  relation  as  if  he  were  a  slave  who  only  sustained 
the  persona  of  his  master,  it  followed  that  when  the  master 
was  liable,  the  servant  was  not.  There  seems  to  have  been 
a  willingness  at  one  time  to  accept  the  conclusion.  It  was 
said  under  James  and  Charles  I.  that  the  sheriff  only  was 
liable  if  an  under-sheriff  made  a  false  return,  "  for  the  law 
doth  not  take  notice  of  him."4  So  it  was  held  in  the  latter 
reign  that  case  does  not  lie  against  husband  and  wife  for 
negligently  keeping  their  fire  in  their  house,  "  because  this 
action  lies  on  the  .  .  .  custom  .  .  .  against  patrem  familias 
and  not  against  a  servant  or  a  feme  covert  who  is  in  the 


v.  Cotton,  1  Salk.  17,  18. 
2  See  also  Noy's  Maxims,  c.  44. 
8B1.  Comm.  431,  432. 

*Cremer  &  Tookley's  Case,  Godbolt,  385,  389   (Jac.  I.);  Laicock's 
Case,  Latch,  18T  (H.  2  Car.  I.). 


63.     HOLMES:   HISTORY  OF  AGENCY       389 

nature  of  a  servant. *  So  Rolle  says  that  "  if  the  servant  of 
an  innkeeper  sells  wine  which  is  corrupt,  knowing  this,  action 
of  deceit  lies  not  against  the  servant,  for  he  did  this  only  as 
servant."  2  So  as  to  an  attorney  maliciously  acting  in  a 
case  where  he  knew  there  was  no  cause  of  action.  "  For  that 
what  he  does  is  only  as  servant  to  another,  and  in  the  way 
of  his  calling  and  profession."3 

Later  this  was  cut  down  by  Lord  Holt  to  this  rule  that  a 
servant  is  not  liable  for  a  neglect  (i.  e.,  a  nonf easance) ,  "  for 
they  must  consider  him  only  as  a  servant ;  "  "  but  for  a  mis- 
feasance an  action  will  lie  against  a  servant  or  deputy,  but 
not  quatenus  a  deputy  or  servant,  but  as  a  wrong-doer."4 
That  is  to  say,  although  it  is  contrary  to  theory  to  allow 
a  servant  to  be  sued  for  conduct  in  his  capacity  as  such,  he 
cannot  rid  himself  of  his  responsibility  as  a  freeman,  and 
may  be  sued  as  a  free  wrong-doer.  This,  of  course,  is  the 
law  to-day.  6  Yet  as  late  as  Blackstone's  Commentaries  it 
was  said  that  "  if  a  smith's  servant  lames  a  horse  while  he  is 
shoeing  him,  an  action  lies  against  the  master,  and  not 
against  the  servant. 6 

I  think  I  now  have  traced  sufficiently  the  history  of  agency 
in  torts.  The  evidence  satisfies  me  that  the  common  law  has 
started  from  the  patria  potestas  and  the  frithborh,  — 
whether  following  or  simply  helped  by  the  Roman  law,  it 
does  not  matter,  —  and  that  it  has  worked  itself  out  to  its 
limits  through  the  formula  of  identity.  It  is  true  that 
liability  for  another  as  master  or  principal  is  not  confined 
to  family  relations ;  but  I  have  shown  partly,  and  shall  con> 
plete  the  proof  later,  that  the  whole  doctrine  has  been  worked 


Shelley  &  Burr,  1  Roll.  Abr.  2,  pi.  7  (M.  1  Car.  I.).  Cf.  1  Bl. 
Comm.  431;  Com.  Dig.,  Action  on  the  case  for  negligence,  A.  C. 

2 Roll.  Abr.  95  (T.),  citing  no  authority,  and  adding,  "Contra,  9 
Hen.  VI.  53  b."  The  contradiction  is  doubtful. 

8  Anon.,  1  Mod.  209,  210  (H.  27  &  28  Car.  II.).  Cf.  Barker  v. 
Braham,  2  W.  Bl.  866,  869. 

*Lane  v.  Cotton,  12  Mod.  472,  488,  T.  13  W.  III.  Cf.  Mors  v.  Slew, 
3  Keble,  135  (23  &  24  Car.  II.,  1671,  1672)  ;  also  Mires  v.  Solebay,  2 
Mod.  242,  244  (T.  29  Car.  II.),  for  an  exception  by  Scroggs,  C.  J. 

8  Sands  v.  Childs,  3  Lev.  351,  352;  Perkins  v.  Smith,  3  Wilson,  328 
(1752). 

61  Bl.  Comm.  431;  Bac.  Abr.,  Master  $  Servant,  K.  It  is  enough 
simply  to  refer  to  the  law  as  to  the  liability  of  married  women. 


390  VI.     CONTRACTS 

out  in  terms  of  master  and  servant  and  on  the  analogies 
which  those  terms  suggested. 

The  history  of  agency  as  applied  to  contract  is  next  to  be 
dealt  with.  In  this  branch  of  the  law  there  is  less  of  anomaly 
and  a  smaller  field  in  which  to  look  for  traces  of  fiction  than 
the  last.  A  man  is  not  bound  by  his  servant's  contracts 
unless  they  are  made  on  his  behalf  and  by  his  authority,  and 
that  he  should  be  bound  then  is  plain  common-sense.  It  is 
true  that  in  determining  how  far  authority  extends,  the 
question  is  of  ostensible  authority  and  not  of  secret  order. 
But  this  merely  illustrates  the  general  rule  which  governs 
a  man's  responsibility  for  his  acts  throughout  the  law.  If, 
under  the  circumstances  known  to  him,  the  obvious  conse- 
quence of  the  principal's  own  conduct  in  employing  the  agent 
is  that  the  public  understand  him  to  have  given  the  agent 
certain  powers,  he  gives  the  agent  those  powers.  And  he 
gives  them  just  as  truly  when  he  forbids  their  exercise  as 
when  he  commands  it.  It  seems  always  to  have  been  recog- 
nized that  an  agent's  ostensible  powers  were  his  real  powers ;  * 
and  on  the  other  hand  it  always  has  been  the  law  that  an 
agent  could  not  bind  his  principal  beyond  the  powers  actually 
given  in  the  sense  above  explained. 

There  is,  however,  one  anomaly  introduced  by  agency  even 
into  the  sphere  of  contract,  —  the  rule  that  an  undisclosed 
principal  may  sue  or  be  sued  on  a  contract  made  by  an  agent 
on  his  behalf ;  and  this  must  be  examined,  although  the  evi- 
dence is  painfully  meagre.  The  rule  would  seem  to  follow 
very  easily  from  the  identification  of  agent  and  principal^ 
as  I  shall  show  more  fully  in  a  moment.  It  is  therefore  well 
to  observe  at  the  outset  that  the  power  of  contracting 
through  others,  natural  as  it  seems,  started  from  the  family 
relations,  and  that  it  has  been  expressed  in  the  familiar  lan- 
guage of  identification. 

Generally  speaking,  by  the  Roman  law  contractual  rights 
could  not  be  acquired  through  free  persons  who  were 
strangers  to  the  family.  But  a  slave  derived  a  standing  to 


*Y.   B.  27  Ass.,  pi.   5,   fol.   133;   Anon.,   1    Shower,  95;   Nickson   v. 
Brohan,  10  Mod.  109,  etc. 


68.     HOLMES:   HISTORY  OF  AGENCY       391 

accept  a  promise  to  his  master  ex  persona  domini.1  Bracton 
says  that  contracts  can  be  accepted  for  a  principal  by  his 
agent  ;  but  he  starts  from  the  domestic  relations  in  language 
very  like  that  of  the  Roman  juris  consults.  An  obligation 
may  be  acquired  through  slaves  or  free  agents  in  our  power, 
if  they  take  the  contract  in  the  name  of  their  master.2 

It  was  said  under  Henry  V.  that  a  lease  made  by  the  sene- 
schal of  a  prior  should  be  averred  as  the  lease  of  the  prior,3 
and  under  James  I.  it  was  held  that  an  assumpsit  to  a  servant 
for  his  master  was  properly  laid  as  an  assumpsit  to  the 
master.4  West's  Symboleography  belongs  to  the  beginning 
of  the  same  reign.  It  will  be  remembered  that  the  language 
which  has  been  quoted  from  that  work  applies  to  contracts 
as  well  as  to  torts.  A  discussion  in  the  Year  Book,  8  Ed- 
ward IV.,  fol.  11,  is  thus  abridged  in  Popham:  "  My  servant 
makes  a  contract,  or  buys  goods  to  my  use  ;  I  am  liable,  and 
it  is  my  act."  5  Baron  Parke  explains  the  requirement  that 
a  deed  executed  by  an  agent  should  be  executed  in  the  name 
of  his  principal,  in  language  repeated  from  Lord  Coke: 
"  The  attorney  is  ...  put  in  place  of  the  principal  and 
represents  his  person."  6  Finally,  Chitty,  still  speaking  of 
contracts,  says,  like  West,  that  "  In  point  of  law  the  master 
and  servant,  or  principal  and  agent,  are  considered  as  one 
and  the  same  person."7 

I  have  found  no  early  cases  turning  upon  the  law  of  un- 
disclosed principal.  It  will  be  remembered  that  the  only 
action  on  simple  contract  before  Henry  VI.,  and  the  chief 


3,  17,  pr.    See  Gams,  3,  §§  164-166. 

2  "  Videndum  etiam  est  per  quas  personas  acquiratur  obligatio,  et 
sciendum  quod  per  procuratores,  et  per  liberos,  quos  sub  potestate 
nostra  habemus,  et  per  nosmetipsos,  et  filios  nostros  et  per  liberos 
homines  servientes  nostros."  Bract.,  fol.  100  b.  So,  "Etiam  dormienti 
per  servum  acquiritur,  ut  per  procuratorem,  si  nomine  domini  stipule- 
tur."  Bract.,  fol.  28  6. 

3Y.  B.  8  H.  V.  4,  pi.  17. 

4  Seignior  &  Wolmer's  Case,  Godbolt,  360  (T.  21  Jac.).  Cf.  Jordan's 
Case,  Y.  B.  27  H.  VIII.  24,  pi.  3. 

5Drope  v.  Theyar,  Popham,  178,  179   (P.  2  Car.  I.). 

"Hunter  v.  Parker,  7  M.  &  W.  322,  343  (1840);  Combes's  Case,  9 
Rep.  75  a,  76  6,  77  (T.  11  Jac.).  The  fiction  of  identity  between  prin- 
cipal and  agent  was  fully  stated  by  Hobbes,  who  said  many  keen  things 
about  the  law.  Leviathan,  Part  I.  ch.  16.  "Of  Persons,  Authors,  and 
things  Personated."  Also  De  Homine,  I.  c.  15.  De  Homine  Fictitio. 

7  1  Bl.  Comm.  429,  note. 


392  VI.     CONTRACTS 


one  for  a  good  while  after,  was  debt,  and  that  this  was 
founded  on  a  quid  pro  quo  received  by  the  debtor.  Natu- 
rally, therefore,  the  chief  question  of  which  we  hear  in  the 
earlier  books  is  whether  the  goods  came  to  the  use  of  the 
alleged  debtor.1  It  is  at  a  much  later  date,  though  still  in 
the  action  of  debt,  that  we  find  the  most  extraordinary  half 
of  the  rule  under  consideration  first  expressly  recognized. 
In  Scrimshire  v.  Alderton2  (H.  16  G.  II.)  a  suit  was  brought 
by  an  undisclosed  principal  against  a  purchaser  from  a  del 
credere  factor.  Chief  Justice  Lee  "  was  of  opinion  that  this 
new  method  [i.  e.,  of  the  factor  taking  the  risk  of  the  debt 
for  a  larger  commission]  had  not  deprived  the  farmer  of  his 
remedy  against  the  buyer."  And  he  was  only  prevented  from 
carrying  out  his  opinion  by  the  obstinacy  of  the  jury  at 
Guildhall.  The  language  quoted  implies  that  the  rule  was 
then  well  known,  and  this,  coupled  with  the  indications  to  be 
found  elsewhere,  will  perhaps  warrant  the  belief  that  it  was 
known  to  Lord  Holt. 

Scott  v.  Surman,  3  decided  at  the  same  term  that  Scrim- 
shire  v.  Alderton  was  tried,  refers  to  a  case  of  T.  9  Anne, 
Gurratt  v.  Cullum,4  in  which  goods  were  sold  by  factors 
to  J.  S.  without  disclosing  their  principal.  The  factors 
afterwards  went  into  bankruptcy.  Their  assignee  collected 
the  debt,  and  the  principal  then  sued  him  for  the  money. 
"  And  this  matter  being  referred  by  Holt  for  the  opinion 
of  the  King's  Bench,  judgment  was  given  on  argument  for 
the  plaintiff.  Afterwards  at  Guildhall,  before  Lord  Chief 
Justice  Parker,  this  case  was  cited  and  allowed  to  be  law, 
because  though  it  was  agreed  that  payment  by  J.  S.  to 
[the  factors]  with  whom  the  contract  was  made  would  be  a 
discharge  to  J.  S.  against  the  principal,  yet  the  debt  was 
not  in  law  due  to  them,  but  to  the  person  whose  goods  they 
were  .  .  .  and  being  paid  to  the  defendant  who  had  no  right 
to  have  it,  it  must  be  considered  in  law  as  paid  for  the  use 


.  Abr.  Dett,  pi.  3  (T.  9  R.  II.).  Cf.  Alford  v.  Eglisfield,  Dyer, 
230  6  (T.  6  Eliz.),  and  notes. 

2  3  Strange,  1182. 

3Willes,  400,  at  p.  405  (H.  16  G.  II.). 

4  Also  -reported  in  Buller,  N.  P.  42.  Cf.  Whitecomb  v.  Jacob,  1  Salk. 
160  (T.  9  Anne). 


63.     HOLMES:   HISTORY  OF  AGENCY       393 

of  him  to  whom  it  was  due."  This  explanation  seems  to 
show  that  Chief  Justice  Parker  understood  the  law  in  the 
same  way  as  Chief  Justice  Lee,  and,  if  it  be  the  true  one, 
would  show  that  Lord  Holt  did  also.  I  think  the  inference  is 
somewhat  strengthened  by  other  cases  from  the  Salkeld  MSS. 
cited  in  Buller's  Nisi  Prius.1  Indeed  I  very  readily  should 
believe  that  at  a  much  earlier  date,  if  one  man's  goods  had 
come  to  another  man's  hands  by  purchase,  the  purchaser 
might  have  been  charged,  although  he  was  unknown  and  had 
dealt  through  a  servant,2  and  that  perhaps  he  might  have 
been,  in  the  converse  case  of  the  goods  belonging  to  an  un- 
disclosed master.3 

The  foregoing  cases  tend  to  show,  what  is  quite  probable, 
that  the  doctrine  under  discussion  began  with  debt.  I  do 
not  wish  to  undervalue  the  argument  that  may  be  drawn 
from  this  fact,  that  the  law  of  undisclosed  principal  has  no 
profounder  origin  than  the  thought  that  the  defendant,  hav- 
ing acquired  the  plaintiff's  goods  by  way  of  purchase,  fairly 
might  be  held  to  pay  for  them  in  an  action  of  contract,  and 
that  the  rule  then  laid  down  has  been  extended  since  to  other 
contracts.4 

But  suppose  what  I  have  suggested  be  true,  it  does  not 
dispose  of.  the  difficulties.  If  a  man  buys  B.'s  goods  of  A., 
thinking  A.  to  be  the  owner,  and  B.  then  sues  him  for  the 
price,  the  defendant  fairly  may  object  that  the  only  con- 
tract which  he  has  either  consented  or  purported  to  make  is 
a  contract  with  A.,  and  that  a  stranger,  to  both  the  intent 
and  the  form  of  a  voluntary  obligation  cannot  sue  upon  it. 
If  the  contract  was  made  with  the  owner's  consent,  let  the 
contractee  bring  his  action.  If  it  was  made  without  actual 

1Gonzales  v.  Sladen;  Thorp  v.  How  (H.  13  W.  III.);  Buller,  N.  P. 
130. 

2  See  Goodbaylie's  Case,  Dyer,  230  b,  pi.  56,  n.;  Truswell  v.  Middle- 
ton,  2  Roll.  R.  269,  270.  Note,  however,  the  insistence  on  the  servant 
being  known  as  such  in  Fitz.  Abr.  Dett,  pi.  3;  27  Ass.,  pi.  5,  fol.  133. 

'Consider  the  doubt  as  to  ratifying  a  distress  made  "generally  not 
showing  his  intent  nor  the  cause  wherefore  he  distrained"  in  Godbolt, 
109,  pi.  129  (M.  28  &  29  Eliz.).  Suppose  the  case  had  been  contract 
instead  of  tort,  and  with  actual  authority,  would  the  same  doubt  have 
been  felt? 

4 Sims  v.  Bond,  5  B.  &  Ad.  389,  393  (1833).  Cf.  Bateman  v.  Phillips, 
15  East,  272  (1812). 


394  VI.     CONTRACTS 

or  ostensible  authority,  the  owner's  rights  can  be  asserted  in 
an  action  of  tort.  The  general  rule  in  case  of  a  tortious 
sale  is  that  the  owner  cannot  waive  the  tort  and  sue  in  as- 
sumpsit.1  Why  should  the  fact  that  the  seller  was  secretly 
acting  in  the  owner's  behalf  enlarge  the  owner's  rights  as 
against  a  third  person?  The  extraordinary  character  of 
the  doctrine  is  still  clearer  when  it  is  held  that  under  a  con- 
tract purporting  to  be  made  with  the  plaintiff  and  another 
jointly,  the  plaintiff  may  show  that  the  two  ostensible  joint 
parties  were  agents  for  himself  alone,  and  thus  set  up  a 
several  right  in  the  teeth  of  words  used  and  of  the  ostensible 
transaction,  which  gave  him  only  a  joint  one.2 

Now,  if  we  apply  the  formula  of  identification  and  say  that 
the  agent  represents  the  person  of  the  owner,  or  that  the 
principal  adopts  the  agent's  name  for  the  purposes  of  that 
contract,  we  have  at  once  a  formal  justification  of  the  result. 
I  have  shown  that  the  power  of  contracting  through  agents 
started  from  the  family,  and  that  principal  and  agent  were 
identified  in  contract  as  well  as  in  tort.  I  think,  therefore, 
that  the  suggested  explanation  has  every  probability  in  its 
favor.  So  far  as  Lord  Holt  is  concerned,  I  may  add  that 
in  Gurratt  v.  Cullum  the  agent  was  a  factor,  that  a  factor 
in  those  days  always  was  spoken  of  as  a  servant,  and  that 
Lord  Holt  was  familiar  with  the  identification  of  servant 
and  master.  If  he  was  the  father  of  the  present  doctrine,  it 
is  fair  to  infer  that  the  technical  difficulty  was  consciously 
or  unconsciously  removed  from  his  mind  by  the  technical 
fiction.  And  the  older  we  imagine  the  doctrine  to  be,  the 
stronger  does  a  similar  inference  become.  For  just  in  pro- 
portion as  we  approach  the  archaic  stage  of  the  law,  the 
greater  do  we  find  the  technical  obstacles  in  the  way  of  any 
one  attempting  to  enforce  a  contract  except  the  actual  party 
to  it,  and  the  greater  therefore  must  have  been  the  need  of 
a  fiction  to  overcome  them.3 

Berkshire  Glass  Co.  v.  Wolcott,  2  Allen  (Mass.),  227. 

*Spurr  v.  Cass,  L.  R.  5  Q.  B.  656.  See  further,  Sloan  v.  Merrill, 
135  Mass.  17,  19. 

8Cf.  The  Common  Law,  ch.  x.  and  xi.  "  Unsere  heutigen  Anschau- 
ungen  .  .  .  konnen  sich  nur  schwer  in  urspriingliche  Rechtszustande 
hineinfmden,  in  welchen  .  .  .  bei  Contrahirung  oder  Zahlung  einer 
Schuld  die  handelnden  Subjecte  nicht  als  personae  fungibiles  galten." 


63.     HOLMES:    HISTORY  OF  AGENCY       395 

The  question  which  I  have  been  considering  arises  in  an- 
other form  with  regard  to  the  admission  of  oral  evidence  in 
favor  of  or  to  charge  a  principal,  when  a  contract  has  been 
made  in  writing,  which  purports  on  its  face  to  be  made  with 
or  by  the  alleged  agent  in  person.  Certainly  the  argument 
is  strong  that  such  evidence  varies  the  writing,  and  if  the 
Statute  of  Frauds  applies,  that  the  statute  is  not  satisfied 
unless  the  name  of  the  principal  appears.  Yet  the  contrary 
has  been  decided.  The  step  was  taken  almost  sub  silentio.1 
But  when  at  last  a  reason  was  offered,  it  turned  on,  or  at 
least  was  suggested  by,  the  notion  of  the  identity  of  the 
parties.  It  was  in  substance  that  the  principal  "  is  taken 
to  have  adopted  the  name  of  the  [agent]  as  his  own,  for  the 
purpose  of  such  contracts,"  as  it  was  stated  by  Smith  in 
his  Leading  Cases,  paraphrasing  the  language  of  Lord  Den- 
man  in  Trueman  v.  Loder.2 

1  gave  some  evidence  at  the  beginning  of  this  discussion, 
that  notions  drawn  from  the  familia  were  applied  to  free 
servants,  and  that  they  were  extended  beyond  the  domestic 
relations.     All  that  I  have  quoted  since  tends  in  the  same 
direction.     For  when  such  notions  are  applied  to   freemen 
in  a  merely  contractual  state  of  service  it  is  not  to  be  ex- 
pected that  their  influence  should  be  confined  to  limits  which 
became  meaningless  when  servants  ceased  to  be  slaves.     The 
passage  quoted   from   Bracton  proved  that  already  in  his 
day  the  analogies  of  domestic  service  were  applied  to  rela- 
tions of  more  limited  subjection.     I  have  now  only  to  com- 
plete the  proof  that  agency  in  the  narrower  sense,  the  law 
familiar  to  the  higher  and  more  important  representatives 
employed  in  modern  business,  is  simply  a  branch  of  the  law 
of  master  and  servant. 

First  of  the  attorney.  The  primitive  lawsuit  was  con- 
ducted by  the  parties  in  person.  Counsel,  if  they  may  be 

Brunner,  Zulassigkeit  der  Anwaltschaft  im  franzos.  etc.  Rechte. 
(Zeitschr.  fur  vergleich.  Rechtswissenschaft.)  Norcross  v.  James,  140 
Mass.  188,  189. 

1Bateman  v.  Phillips,  15  East,  272  (1812);  Garrett  v.  Handley,  4 
B.  &  C.  664  (1825)  ;  Higgins  v.  Senior,  8  M.  &  W.  834,  844  (1841). 

2  11  Ad.  &  El.  595;  s.  c.  3  P.  &  D.  267,  271   (1840)  ;  2  Sm.  L.  C.,  8th 
ed.,  408,  note  to  Thompson  v.  Davenport;   Byington  v.  Simpson,  134 
Mass.  169,  170. 


396  VI.     CONTRACTS 

called  so,  were  very  early  admitted  to  conduct  the  formal 
pleadings  in  the  presence  of  the  party,  who  was  thus  enabled 
to  avoid  the  loss  of  his  suit,  which  would  have  followed  a 
slip  on  his  own  part  in  uttering  the  formal  words,  by  dis- 
avowing the  pleading  of  his  advocate.  But  the  Prankish 
law  very  slowly  admitted  the  possibility  of  giving  over  the 
conduct  of  a  suit  to  another,  or  of  its  proceeding  in  the 
absence  of  the  principals  concerned.  Brunner  has  traced 
the  history  of  the  innovation  by  which  the  appointment  of 
an  attorney  (i.  e.,  loco  positus)  came  generally  to  be  per- 
mitted, with  his  usual  ability. l  It  was  brought  to  England 
with  the  rest  of  the  Norman  law,  was  known  already  to  Glan- 
vill,  and  gradually  grew  to  its  present  proportions.  The 
question  which  I  have  to  consider,  however,  is  not  the  story 
of  its  introduction,  but  the  substantive  conception  under 
which  it  fell  when  it  was  introduced. 

If  you  were  thinking  of  the  matter  a  priori  it  would  seem 
that  no  reference  to  history  was  necessary,  at  least  to  explain 
the  client's  being  bound  in  the  cause  by  his  attorney's  acts. 
The  case  presents  itself  like  that  of  an  agent  authorized  to 
make  a  contract  in  such  terms  as  he  may  think  advisable. 
But  as  I  have  hinted,  whatever  common-sense  would  now  say, 
even  in  the  latter  case  it  is  probable  that  the  power  of  con- 
tracting through  others  was  arrived  at  in  actual  fact  by 
extending  the  analogy  of  slaves  to  freemen.  And  it  is  at 
least  equally  clear  that  the  law  had  need  of  some  analogy  or 
fiction  in  order  to  admit  a  representation  in  lawsuits.  I 
have  given  an  illustration  from  Iceland  in  my  book  on  the 
Common  Law.  There  the  contract  of  a  suit  was  transferred 
from  Thorgeir  to  Mord  "  as  if  he  were  the  next  of  kin." 2 
In  the  Roman  law  it  is  well  known  that  the  same  difficulty 
was  experienced.  The  English  law  agreed  with  the  North- 
ern sources  in  treating  attorneys  as  sustaining  the  persona 
of  their  principal.  The  result  may  have  been  worked  out  in 
a  different  way,  but  that  fundamental  thought  they  had  in 


1  [H.  Brunner,  Early  History  of  the  Attorney  in  English  Law,  trans- 
lated in  Illinois  Law  Review,  1908,  III.  257.  —  EDS.] 

2  The  Common  Law,  359.    See  Brunner,  in  1  Holtzendorff,  Encyc.  II. 
3,  A.  1,  §  2,  3d  ed.,  p.  166.    1  Stubbs,  Const.  Hist.  82. 


63.     HOLMES:   HISTORY  OF  AGENCY       397 

common.  I  do  not  inquire  into  the  recondite  causes,  but 
simply  observe  the  fact. 

Bracton  says  that  the  attorney  represents  the  persona  of 
his  principal  in  nearly  everything. l  He  was  "  put  in  the 
place  of  "  his  principal,  loco  positus  (according  to  the  literal 
meaning  of  the  word  attorney),  as  every  other  case  in  the 
Abbreviatio  Placitorum  shows.  The  essolgn  de  malo  lecti 
had  reference  to  the  illness  of  the  attorney  as  a  matter  of 
necessity.2  But,  in  general,  the  attorney  was  dealt  with  on 
the  footing  of  a  servant,  and  he  is  called  so  as  soon  as  his 
position  is  formulated.  Such  is  the  language  of  the  passage 
in  West's  Symboleography  which  I  have  quoted  above,  and 
the  anonymous  case  which  held  an  attorney  not  liable  for 
maliciously  acting  in  a  cause  which  he  knew  to  be  unfounded. 3 
When,  therefore,  it  is  said  that  the  "  act  of  the  attorney  is 
the  act  of  his  client,"  it  is  simply  that  familiar  fiction  con- 
cerning servants  applied  in  a  new  field.  On  this  ground 
it  was  held  that  the  client  was  answerable  in  trespass,  for 
assault  and  false  imprisonment,  where  his  attorney  had 
caused  the  party  to  be  arrested  on  a  void  writ,  wholly  irre- 
spective, it  would  seem,  of  any  actual  command  or  knowledge 
on  the  part  of  the  client ;  4  and  in  trespass  quare  clausum,  for 
an  officer's  breaking  and  entering  a  man's  house  and  taking 
his  goods  by  command  of  an  attorney's  agent  without  the 
actual  knowledge  either  of  the  client  or  the  attorney.  The 
court  said  that  the  client  was  "  answerable  for  the  act  of  his 
attorney,  and  that  [the  attorney]  and  his  agent  [were]  to 
be  considered  as  one  person."  5 

The  only  other  agent  of  the  higher  class  that  I  think  it 
necessary  to  mention  is  the  factor.  I  have  shown  elsewhere 
that  he  is  always  called  a  servant  in  the  old  books. 6  West's 
language  includes  factors  as  well  as  attorneys.  Servant, 

1 "  Attornatus  fere  in  omnibus  personam  domini  representat."  Bract., 
fol.  342  a.  See  LL.  Hen.  I.  42,  §  2. 

2  Bract.,  fol.  342  a.    Cf.  Glanv.  XI.,  c.  3. 

8  Anon.,  1  Mod.  209,  210  (H.  27  &  28  Car.  II.). 

•Parsons  v.  Loyd,  3  Wils.  341,  345;  s.  c.  2  W.  Bl.  845  (M.  13  G.  IIT. 
1772);  Barker  v.  Braham,  2  W.  Bl.  866,  868,  869;  s.  c.  3  Wils.  368. 

8 Bates  v.  Pilling,  6  B.  &  C.  38  (1826). 

6  The  Common  Law,  228,  n.  3-  181.  See  further  generally,  230,  and 
n.  4,  5. 


398  VI.     CONTRACTS 

factor,  and  attorney  are  mentioned  in  one  breath  and  on  a 
common  footing  in  the  Year  Book,  8  Edward  IV.,  folio  11  b. 
So  Dyer,1  "  if  a  purveyor,  factor,  or  servant  make  a  contract 
for  his  sovereign  or  master."  So  in  trover  for  money  against 
the  plaintiff's  "  servant  and  factor." :  It  is  curious  that  in 
one  of  the  first  attempts  to  make  a  man  liable  for  the  fraud 
of  another,  the  fraudulent  party  was  a  factor.  The  case  was 
argued  in  terms  of  master  and  servant.  3  The  first  authority 
for  holding  a  master  answerable  for  his  servant's  fraud  is 
another  case  of  a  factor.4  Nothing  is  said  of  master  and 
servant  in  the  short  note  in  Salkeld.  But  in  view  of  the  argu- 
ment in  Southern  v.  How,  just  referred  to,  which  must  have 
been  before  Lord  Holt's  mind,  and  the  invariable  language 
of  the  earlier  books,  including  Lord  Holt's  own  when  argu- 
ing Morse  v.  Slue  ("  Factor,  who  is  servant  at  the  master's 
dispose"),5  it  is  safe  to  assume  that  he  considered  the  case 
to  be  one  of  master  and  servant,  and  it  always  is  cited  as 
such.6 

To  conclude  this  part  of  the  discussion,  I  repeat  from  my 
book  on  the  Common  Law,7  that  as  late  as  Blackstone  agents 
appear  under  the  general  head  of  servants;  that  the  prece- 
dents for  the  law  of  agency  are  cases  of  master  and  servant, 
when  the  converse  is  not  the  case;  and  that  Blackstone's 
language  on  this  point  is  express :  "  There  is  yet  a  fourth 
species  of  servants,  if  they  may  be  so  called,  being  rather 
in  a  superior,  a  ministerial,  capacity ;  such  as  stewards, 
factors,  and  bailiffs;  whom,  however,  the  law  considers  as 
servants  pro  tempore,  with  regard  to  such  of  their  acts  as 
affect  their  master's  or  employer's  property."  8 

Possession  is  the  third  branch  of  the  law  in  which  the 
peculiar  doctrines  of  agency  are  to  be  discovered,  and  to 
that  I  now  pass. 

1  Alford  v.  Eglisfield,  Dyer,  230  b,  pi.  56. 

*  Holiday  v.  Hicks,  Cro.  Eliz.  638,  661,  746.  See  further,  Malyne's 
Lex  Merc.,  Pt.  I.  c.  16;  Molloy,  Book  3,  c.  8,  §  1;  Williams  v.  Millington, 
1  H.  Bl.  81,  82. 

3  Southern  v  How,  Cro.  Jac.  468;  s.  c.  Popham,  143. 

4  Hern  v.  Nichols,  1  Salk.  289. 

5  Mors  v.  Slew,  3  Keble,  72. 

6  Smith,  Master  and  Servant,  3d  ed.,  266. 
'P.  228  et  seq. 

«1  Bl.  Comm.  427. 


68.     HOLMES:   HISTORY  OF  AGENCY       399 

The  Roman  law  held  that  the  possession  of  a  slave  was  the 
possession  of  his  master,  on  the  practical  ground  of  the 
master's  power. 1  At  first  it  confined  possession  through 
others  pretty  closely  to  things  in  custody  of  persons  under 
the  patrla  potestas  of  the  possessor  (including  prisoners 
bona  fide  held  as  slaves).  Later  the  right  was  extended  by 
a  constitution  of  Severus. 2  The  common  law  in  like  manner 
allowed  lords  to  appropriate  lands  and  chattels  purchased 
by  their  villeins,  and  after  they  had  manifested  their  will  to 
do  so,  the  occupation  of  the  villeins  was  taken  to  be  the  right 
of  their  lords.  3  As  at  Rome,  the  analogies  of  the  famttia 
were  extended  to  free  agents.  Bracton  allows  possession 
through  free  agents,  but  the  possession  must  be  held  in  the 
name  of  the  principal;4  and  from  that  day  to  this  it  always 
has  been  the  law  that  the  custody  of  the  servant  is  the  pos- 
session of  the  master.5 

The  disappearance  of  the  servant  under  the  persona  of  his 
master,  of  which  a  trace  was  discovered  in  the  law  of  torts., 
in  this  instance  has  remained  complete.  Servants  have  no 
possession  of  property  in  their  custody  as  such.6  The  dis- 
tinction in  this  regard  between  servants  and  all  bailees  what- 
soever7 is  fundamental,  although  it  often  has  been  lost  sight 
of.  Hence  a  servant  can  commit  larceny  8  and  cannot  main- 
tain trover.9  A  bailee  cannot  commit  larceny  10  and  can 
maintain  trover.11  In  an  indictment  for  larceny  against  a 

*The  Common  Law,  228;  Gaius,  3,  §§  164-166. 

2Inst.  2.  9,  §§4,  5;  C.  7.  32.  1. 

•Littleton,  §  177.  Cf.  Bract,  fol.  191  a;  Y.  B.  22  Ass.,  pi.  37,  fol.  93; 
Litt.,  §172;  Co.  Lit.  117  a. 

4 Bract.,  fol.  28  6,  42  b,  43,  etc.;  Fleta,  IV.,  c.  3,  §1,  c.  10,  §7,  c. 
11,  §1. 

6Wheteley  v.  Stone,  2  Roll.  Abr.  556,  pi.  14;  s.  c.  Hobart,  180;  Drope 
v.  Theyar,  Popham,  178,  179. 

6  The  Common  Law,  227. 

'The  Common  Law,  174,  211,  221,  243;  Hallgarten  v.  Oldham,  135 
Mass.  1,  9. 

8Y.  B.  13  Ed.  IV.  9,  10,  pi.  5;  21  H.  VII.  14,  pi.  21. 

•The  Common  Law,   227,  n.   2.     The   distinction   mentioned   above, 
under  torts,  between  servants  in  the  house  and  on  a  journey,  led  to  the 
servant's  being  allowed  an  appeal  of  robbery,  without  prejudice  to  the 
general  principle.     Heydon  &  Smith's  Case,  13  Co.  Rep.  67,  69;  Drope 
v.  Theyar,  Popham,  178,  179;  Combs  v.  Hundred  of  Bradley,  2  Salk 
613,  pi.  2;  ib.,  pi.  1. 
102  Bish.  Crim.  Law,  §833,  7th  ed. 
"The  Common  Law,  174,  243 


400  VI.     CONTRACTS 

third  person  the  property  cannot  be  laid  in  a  servant,1  it 
may  be  laid  in  a  bailee.2  A  servant  cannot  assert  a  lien;3  a 
bailee,  of  course,  may,  even  to  the  exclusion  of  the  owner's 
right  to  the  possessory  actions.  4 

Here,  then,  is  another  case  in  which  effects  have  survived 
their  causes.  But  for  survival  and  the  fiction  of  identity 
it  would  be  hard  to  explain  why  in  this  case  alone  the  actual 
custody  of  one  man  should  be  deemed  by  the  law  to  be  the 
possession  of  another  and  not  of  himself. 

A  word  should  be  added  to  avoid  a  misapprehension  of 
which  there  are  signs  in  the  books,  and  to  which  I  have  ad- 
verted elsewhere.6  A  man  may  be  a  servant  for  some  other 
purpose,  and  yet  not  a  servant  in  his  possession.  Thus,  an 
auctioneer  or  a  factor  is  a  servant  for  purposes  of  sale,  but 
not  for  purposes  of  custody.  His  possession  is  not  that  of 
his  principal,  but,  on  the  contrary,  is  adverse  to  it,  and  held 
in  his  own  name,  as  is  shown  by  his  lien.  On  the  other  hand, 
if  the  fiction  of  identity  is  adhered  to,  there  is  nothing  to 
hinder  a  man  from  constituting  another  his  agent  for  the 
sole  purpose  of  maintaining  his  possession,  with  the  same 
effect  as  if  the  agent  were  a  domestic  servant,  and  in  that 
case  the  principal  would  have  possession  and  the  agent  would 
not. 

Agency  is  comparatively  unimportant  in  its  bearing  on 
possession,  for  reasons  connected  with  procedure.  With 
regard  to  chattels,  because  a  present  right  of  possession  is 
held  enough  to  maintain  the  possessory  actions,  and  there- 
fore a  bailor,  upon  a  bailment  terminable  at  his  will,  has  the 
same  remedies  as  a  master,  although  he  is  not  one.  With 
regard  to  real  estate,  because  the  royal  remedies,  the  assizes, 
were  confined  to  those  who  had  a  feudal  seisin,  and  the  party 
who  had  the  seisin  could  recover  as  well  when  his  lands  were 
subject  to  a  term  of  years  as  when  they  were  in  charge  of 
agents  or  servants.6 

*2  East,  P.  C.  652,  653. 

'Kelyng,  39. 

8Bristow  v.  Whitmore,  4  De  G.  &  J.  325,  334. 

4  Lord  v.  Price,  L.  R.  9  Ex.  54;  Owen  v.  Knight,  4  Bing.  N.  C.  54,  57. 

5  The  Common  Law,  233. 

6  Bract.,  fol.  207  a.     Cf.  ib.,  220.     Heusler,  Gewere,  126. 


63.     HOLMES:   HISTORY  OF  AGENCY       401 

Ratification  is  the  only  doctrine  of  which  the  history  re- 
mains to  be  examined.  With  regard  to  this  I  desire  to  ex- 
press myself  with  great  caution,  as  I  shall  not  attempt  to 
analyze  exhaustively  the  Roman  sources  from  which  it  was 
derived.  I  doubt,  however,  whether  the  Romans  would  have 
gone  the  length  of  the  modern  English  law,  which  seems  to 
have  grown  to  its  present  extent  on  English  soil. 

Ulpian  said  that  a  previous  command  to  dispossess  another 
would  make  the  act  mine,  and,  although  opinion  was  divided 
on  the  subject,  he  thought  that  ratification  would  have  the 
same  effect.  He  agreed  with  the  latitudinarian  doctrine  of 
the  Sabinians,  who  compared  ratification  to  a  previous  com- 
mand. l  The  Sabinians'  "  comparison "  of  ratification  to 
mandate  may  have  been  a  mere  figure  of  speech  to  explain 
the  natural  conclusion  that  if  one  accepts  possession  of  a 
thing  which  has  been  acquired  for  him  by  wrongful  force,  he 
is  answerable  for  the  property  in  the  same  way  as  if  he  had 
taken  it  himself.  It  therefore  is  hardly  worth  while  to  in- 
quire whether  the  glossators  were  right  in  their  comment 
upon  this  passage,  that  the  taking  must  have  been  in  the 
name  of  the  assumed  principal,  —  a  condition  which  is  am- 
biguously mentioned  elsewhere  in  the  Digest.  2 

Bracton  copied  Ulpian, 8  still,  so  far  as  I  have  observed, 
not  going  beyond  cases  of  distress  4  and  disseisin. 5  The  first 
reported  cases  known  to  me  are  again  assizes  of  novel  dis- 
seisin. 6 

But  later  decisions  went  much  beyond  this  point,  as  may  be 
illustrated  by  one  of  them. 7  In  trespass  de  bonis  asportatis 
the  defendant  justified  as  bailiff.  After  charging  the  in- 
quest Gascoigne  said  that  "  if  the  defendant  took  the  chattels 
claiming  property  in  himself  for  a  heriot,  although  the  lord 

1 D.  43,  16,  1,  §§  12,  14.    Cf.  D.  46,  3,  12,  §  4. 

2D.  43,  26,  13  (Pomponius). 

8  Bract.,  fol.  1T1   b. 

*Fol.  158  b,  159  a. 

5  Fol.  171.  But  note  that  by  ratification  "suam  facit  injuriam,  et 
ita  tenetur  ad  utrumque,  ad  restitutionem,  s.  [et]  ad  poenam."  Ibid.  6. 

6Y.  B.  30  Ed.  I.  128  (Horwood)  (where,  however,  the  modern  doc- 
trine is  stated  and  the  Roman  maxim  is  quoted  by  the  judge)  ;  38  Ass., 
pi.  9,  fol.  223;  s.  c.  38  Ed.  III.  18;  12  Ed.  IV.  9,  pi.  23;  Plowden,  8  act 
fin.,  27,  31. 

7Y.  B.  7  H.  IV.  34,  35,  pi.  1. 


402  VI.     CONTRACTS 

afterward  agreed  to  that  taking  for  services  due  him,  still 
he  [the  defendant]  cannot  be  called  his  bailiff  for  that  time. 
But  had  he  taken  them  without  command,  for  services  due 
the  lord,  and  had  the  lord  afterwards  agreed  to  his  taking, 
he  shall  be  adjudged  as  bailiff,  although  he  was  nowhere  his 
bailiff  before  that  taking."  A  ratification,  according  to  this, 
may  render  lawful  ab  initio  an  act  which  without  the  neces- 
sary authority  is  a  good  cause  of  action,  and  for  which  the 
authority  was  wanting  at  the  time  that  it  was  done.  Such 
is  still  the  law  of  England.1  The  same  principle  is  applied 
in  a  less  startling  manner  to  contract,  with  the  effect  of 
giving  rights  under  them  to  persons  who  had  none  at  the 
moment  when  the  contract  purported  to  be  complete.2  In 
the  case  of  a  tort  it  follows,  of  course,  from  what  has  been 
said  that  if  it  is  not  justified  by  the  ratification,  the  principal 
in  whose  name  and  for  whose  benefit  it  was  done  is  answer- 
able for  it.3 

Now  it  may  be  argued  very  plausibly  that  the  modern 
decisions  have  only  enlarged  the  comparison  of  the  Sabinians 
into  a  rule  of  law,  and  carried  it  to  its  logical  consequences. 
The  comparatur  of  Ulpian  has  become  the  aequiparatur  of 
Lord  Coke,4  it  might  be  said ;  ratification  has  been  made 
equivalent  to  command,  and  that  is  all.  But  it  will  be  seen 

1Godbolt,  109,  110,  pi.  129;  s.  c.  2  Leon.  196,  pi.  246  (M.  28  &  29 
Eliz.);  Hull  v.  Pickersgill,  1  Brod.  &  B.  282;  Muskett  v.  Drummond, 
10  B.  &  C.  153,  157;  Buron  v.  Denman,  2  Exch.  16T  (1848);  Secretary 
of  State  in  Council  of  India  v.  Kamachee  Boye  Sahaba,  13  Moore,  P.  C. 
22  (1859),  86;  Cheetham  v.  Mayor  of  Manchester,  L.  R.  10  C.  P.  249; 
Wiggins  v.  United  States,  3  Ct.  of  Cl.  412.  But  see  Bro.  Abr.,  Trespass, 
pi.  86;  Fitz.  Abr.,  Bayllie,  pi.  4. 

2  Wolff  v.  Horncastle,  1  Bos.  &  P.  316   (1798).     See  further,  Spittle 
v.  Lavender,  2  Brod.  &  B.  452  (1821). 

3  Bract.  159  a,  171  b;  Bro.,  Trespass,  pi.  113;  Bishop  v.  Montague, 
Cro.   Eliz.   824;   Gibson's    Case,   Lane,   90;   Com.   Dig.,   Trespass,  c.    1; 
Sanderson  v.  Baker,  2  Bl.  832;  s.  c.  3  Wils.  309;  Barker  v.  Braham,  2 
Bl.   866,  868;  s.   c.  3  Wils.  368;   Badkin  v.   Powell,   Cowper,  476,  479; 
Wilson  v.  Tumman,  6  Man.  &  Gr.  236,  242;  Lewis  v.  Read,  13  M.  &  W. 
834;  Buron  v.  Denman,  2  Exch.  167,  188;  Bird  v.  Brown,  4  Exch.  786, 
799;   Eastern  Counties   Ry.   v.   Broom,   6   Exch.   314,  326,   327;   Roe  v. 
Birkenhead,    Lancashire,    &    Cheshire    Junction    Ry.,    7    Exch.    36,    44; 
Ancona  v.  Marks,  7  H.  &  N.  686,  695;  Perley  v.  Georgetown,  7  Gray, 
464;  Condit  v.  Baldwin,  21  N.  Y.  219,  225;  Exum  v.  Brister,  35  Miss. 
391;  G.  H.  &  S.  A.  Ry.  v.  Donahoe,  56  Tex.  162;  Murray  v.  Lovejoy,  2 
Cliff.  191,  195.     (See  3  Wall.  1,  9.) 

4  Co.  Lit.  207  a;  4  Inst.  317.     It  is   comparatur  in  30  Ed.   I.   128; 
Bract.  171  6. 


68.     HOLMES:   HISTORY  OF  AGENCY       403 

that  this  is  a  very  great  step.  It  is  a  long  way  from  holding 
a  man  liable  as  a  wrongful  disseizor  when  he  has  accepted 
the  wrongfully-obtained  possession,  to  allowing  him  to  make 
justifiable  an  act  which  was  without  justification  when  it  was 
done,  and,  if  that  is  material,  which  was  followed  by  no  pos- 
session on  the  part  of  the  alleged  principal.1  For  such  a 
purpose  why  should  ratification  be  equivalent  to  a  previous 
command?  Why  should  my  saying  that  I  adopt  or  approve 
of  a  trespass  in  any  form  of  words  make  me  responsible  for 
a  past  act?  The  act  was  not  mine,  and  I  cannot  make  it 
so.  Neither  can  it  be  undone  or  in  any  wise  affected  by 
what  I  may  say.2 

But  if  the  act  was  done  by  one  who  affected  to  personate 
me,  new  considerations  come  in.  If  a  man  assumes  the  status 
of  my  servant  pro  Tiac  vice,  it  lies  between  him  and  me  whether 
he  shall  have  it  or  not.  And  if  that  status  is  fixed  upon  him 
by  my  subsequent  assent,  it  seems  to  bear  with  it  the  usual 
consequence  as  incident  that  his  acts  within  the  scope  of  his 
employment  are  my  acts.  Such  juggling  with  words  of 
course  does  not  remove  the  substantive  objections  to  the 
doctrine  under  consideration,  but  it  does  formally  reconcile 
it  with  the  general  framework  of  legal  ideas. 

From  this  point  of  view  it  becomes  important  to  notice 
that,  however  it  may  have  been  in  the  Roman  law,  from  the 
time  of  the  glossators  and  of  the  canon  law  it  always  has  been 
required  that  the  act  should  have  been  done  in  the  name  or 
as  agent  of  the  person  assuming  to  ratify  it.  "  Ratum  quis 
habere  non  potest  quod  ipsius  nomine  non  est  gestum."  In 
the  language  of  Baron  Parke  in  Buron  v.  Denman,4  "  a  sub- 
sequent ratification  of  an  act  done  as  agent  is  equal  to  a  prior 
authority."  And  all  the  cases  from  that  before  Gascoigne 

1  Buron  v.  Denman,  2  Exch.  167  (1848). 

'Ratification  had  a  meaning,  of  course,  when  the  usual  remedy  for 
wrongs  was  a  blood-feud,  and  the  head  of  the  house  had  a  choice 
whether  he  would  maintain  his  man  or  leave  him  to  the  vengeance  of  the 
other  party.  See  the  story  of  Howard  the  Halt,  1  Saga  Library,  p.  50, 
ch.  14,  end.  Compare  "although  he  has  not  received  him"  in  Fitz. 
Abr.,  Corone,  pi.  428,  cited  4  Harv.  Law  Rev.  355. 

8Sext.  Dec.  5.  12.  de  Reg.  Jur.  (Reg.  9).  It  made  the  difference  be- 
tween excommunication  and  a  mere  sin  in  case  of  an  assault  upon  one 
of  the  clergy.  Ibid.  5,  11,  23. 

*2  Exch.  16T. 


404  VI.     CONTRACTS 

downwards  have  asserted  the  same  limitation.  l  I  think  we 
may  well  doubt  whether  ratification  would  ever  have  been 
held  equivalent  to  command  in  the  only  cases  in  which  that 
fiction  is  of  the  least  importance  had  it  not  been  for  the 
further  circumstance  that  the  actor  had  assumed  the  position 
of  a  servant  for  the  time  being.  The  grounds  for  the  doubt 
become  stronger  if  it  be  true  that  the  liability  even  for  com- 
manded acts  started  from  the  case  of  owner  and  slave. 

In  any  event,  ratification  like  the  rest  of  the  law  of  agency 
reposes  on  a  fiction,  and  whether  the  same  fiction  or  another, 
it  will  be  interesting  in  the  conclusion  to  study  the  limits  which 
have  been  set  to  its  workings  by  practical  experience. 

What  more  I  have  to  say  concerning  the  history  of  agency 
will  appear  in  my  treatment  of  the  last  proposition  which  I 
undertook  to  maintain.  I  said  that  finally  I  should  endeavor 
to  show  that  the  whole  outline  of  the  law,  as  it  stands  to-day, 
is  the  resultant  of  a  conflict  between  logic  and  good  sense  — 
the  one  striving  to  carry  fictions  out  to  consistent  results, 
the  other  restraining  and  at  last  overcoming  that  effort  when 
the  results  become  too  manifestly  unjust.  To  that  task  I 
now  address  myself. 

I  assume  that  common-sense  is  opposed  to  making  one  man 
pay  for  another  man's  wrong,  unless  he  actually  has  brought 
the  wrong  to  pass  according  to  the  ordinary  canons  of  legal 
responsibility,  —  unless,  that  is  to  say,  he  has  induced  the 
immediate  wrong-doer  to  do  acts  of  which  the  wrong,  or,  at 
least,  wrong,  was  the  natural  consequence  under  the  circum- 
stances known  to  the  defendant.  I  assume  that  common- 
sense  is  opposed  to  allowing  a  stranger  to  my  overt  acts  and 
to  my  intentions,  a  man  of  whom  I  have  never  heard,  to  set  up 
a  contract  against  me  which  I  had  supposed  I  was  making 
with  my  personal  friend.  I  assume  that  common-sense  is 
opposed  to  the  denial  of  possession  to  a  servant  and  the  asser- 
tion of  it  for  a  depositary,  when  the  only  difference  between 
the  two  lies  in  the  name  by  which  the  custodian  is  called. 
And  I  assume  that  the  opposition  of  common-sense  is  intensi- 

1  Supra,  pp.  401,  402,  n.  See  also  Fuller  &  TrimwelPs  Case,  2  Leon. 
215,  216;  New  England  Dredging  Co.  v.  Rockport  Granite  Co.,  149 
Mass.  381,  382;  Bract.,  fol.  28  b,  100  fe. 


63.     HOLMES:   HISTORY  OF  AGENCY       405 

fied  when  the  foregoing  doctrines  are  complicated  by  the  addi- 
tional absurdities  introduced  by  ratification.  I  therefore 
assume  that  common  sense  is  opposed  to  the  fundamental 
theory  of  agency,  although  I  have  no  doubt  that  the  possible 
explanations  of  its  various  rules  which  I  suggested  at  the  be- 
ginning of  this  Essay,  together  with  the  fact  that  the  most 
flagrant  of  them  now-a-days  often  presents  itself  as  a  seem- 
ingly wholesome  check  on  the  indifference  and  negligence  of 
great  corporations,  have  done  much  to  reconcile  men's  minds 
to  that  theory.  What  remains  to  be  said  I  believe  will  jus- 
tify my  assumption. 

I  begin  with  the  constitution  of  the  relation  of  master  and 
servant,  and  with  the  distinction  that  an  employer  is  not  lia- 
ble for  the  torts  of  an  independent  contractor,  or,  in  other 
words,  that  an  independent  contractor  is  not  a  servant.  And 
here  I  hardly  know  whether  to  say  that  common-sense  and 
tradition  are  in  conflict,  or  that  they  are  for  once  harmoni- 
ous. On  the  one  side  it  may  be  urged  that  when  you  have 
admitted  that  an  agency  may  exist  outside  the  family  rela- 
tions, the  question  arises  where  you  are  to  stop,  and  why, 
if  a  man  who  is  working  for  another  in  one  case  is  called  his 
servant,  he  should  not  be  called  so  in  all.  And  it  might  be 
said  that  the  only  limit  is  found,  not  in  theory,  but  in  com- 
mon-sense, which  steps  in  and  declares  that  if  the  employment 
is  well  recognized  as  very  distinct,  and  all  the  circumstances 
are  such  as  to  show  that  it  would  be  mere  folly  to  pretend 
that  the  employer  could  exercise  control  in  any  practical 
sense,  then  the  fiction  is  at  an  end.  An  evidence  of  the  want 
of  any  more  profound  or  logical  reason  might  be  sought  in 
the  different  circumstances  that  have  been  laid  hold  of  as 
tests,  the  objections  that  might  be  found  to  each,  and  in  the 
fact  that  doubtful  cases  are  now  left  to  the  jury.1 

1  Among  the  facts  upon  which  stress  have  been  laid  are  the  follow- 
ing: 1.  Choice.  Kelly  v.  Mayor  of  New  York,  11  N.  Y.  432,  436.  See 
Walcott  v.  Swampscott,  1  Allen,  101,  103.  But  although  it  is  true  that 
the  employer  has  not  generally  the  choice  of  the  contractor's  servants, 
he  has  the  choice  of  the  contractor,  yet  he  is  no  more  liable  for  the 
contractor's  negligence  than  for  that  of  his  servant.  2.  Control.  Sadler 
v.  Henlock,  4  El.  &  Bl.  570,  578  (1855).  Yet  there  was  control  in  the 
leading  case  of  Quarman  v.  Burnett,  6  M.  &  W.  499  (1840),  where  the 
employee  was  held  not  to  be  the  defendant's  servant.  Cf.  Steel  v. 
Lester,  3  C.  P.  D.  121  (1877).  3.  A  round  sum  paid.  But  this  was 


406  VI.     CONTRACTS 

On  the  other  hand,  it  might  be  said  that  the  master  is  made 
answerable  for  the  consequences  of  the  negligent  acts  "  of 
those  whom  the  law  denominates  his  servants,  because,"  in  the 
language  of  that  judgment  which  settled  the  distinction  un- 
der consideration,1  "  such  servants  represent  the  master  him- 
self, and  their  acts  stand  upon  the  same  footing  as  his  own." 
That  although  the  limits  of  this  identification  are  necessarily 
more  or  less  vague,  yet  all  the  proposed  tests  go  to  show  that 
the  distinction  rests  on  the  remoteness  of  personal  connection 
between  the  parties,  and  that  as  the  connection  grows  slighter, 
the  likeness  to  the  original  case  of  menials  grows  less.  That 
a  contractor  acts  in  his  own  name  and  on  his  own  behalf,  and 
that  although  the  precise  point  at  which  the  line  is  drawn 
may  be  somewhat  arbitrary,  the  same  is  true  of  all  legal  dis- 
tinctions, and  that  they  are  none  the  worse  for  it,  and  that 
wherever  the  line  is  drawn  it  is  a  necessary  one,  and  required 
by  the  very  definition  of  agency.  I  suppose  this  is  the  pre- 
vailing opinion. 

I  come  next  to  the  limit  of  liability  when  the  relation  of 
master  and  servant  is  admitted  to  exist.  The  theory  of 
agency  as  applied  to  free  servants  no  doubt  requires  that  if 
the  servant  commits  a  wilful  trespass  or  any  other  wrong, 
when  employed  about  his  own  business,  the  master  should  not 
be  liable.  No  free  man  is  servant  all  the  time.  But  the  cases 
which  exonerate  the  master  could  never  have  been  decided  as 


true  in  Sadler  v.  Henlock,  sup.,  where  the  employee  was  held  to  be  a 
servant.  4.  Power  to  discharge.  Burke  v.  Norwich  &  W.  R.  R.,  34 
Conn.  474  (1867).  See  Lane  v.  Cotton,  12  Mod.  472,  488,  489.  But 
apart  from  the  fact  that  this  can  only  be  important  as  to  persons 
removed  two  stages  from  the  alleged  master,  and  not  to  determine 
whether  a  person  directly  employed  by  him  is  a  servant  or  contractor, 
the  power  to  discharge  a  contractor's  servants  may  be  given  to  the 
contractee  without  making  him  their  master.  Reedie  v.  London  & 
Northwestern  Ry.  Co.,  4  Exch.  244,  258.  Robinson  v.  Webb,  11  Bush 
(Ky.),  464.  5.  Notoriously  distinct  calling.  Milligan  v.  Wedge,  12 
Ad.  &  E.  737  (1840);  Linton  v.  Smith,  8  Gray  (Mass.),  47.  This  is 
a  practical  distinction,  based  on  common-sense,  not  directly  on  a  logical 
working  out  of  the  theory  of  agency.  Moreover,  it  is  only  a  partial 
test.  It  does  not  apply  to  all  the  cases. 

In  doubtful  cases  the  matter  seems  now  to  be  left  to  the  jury,  that 
ever-ready  sword  for  the  cutting  of  Gordian  knots,  as  difficult  questions 
of  law  generally  are. 

1  Littledale,  J.,  in  Laugher  v.  Pointer,  5  B.  &  C.  547,  553  (T.  7  G.  IV. 
1826). 


68.     HOLMES:   HISTORY  OF  AGENCY       407 

the  result  of  that  theory  alone.  They  rather  represent  the 
revolt  of  common-sense  from  the  whole  doctrine  when  its  ap- 
plication is  pushed  far  enough  to  become  noticeable. 

For  example,  it  has  been  held  that  it  was  beyond  the  scope 
of  a  servant's  employment  to  go  to  the  further  side  of  a 
boundary  ditch,  upon  a  neighbor's  land,  and  to  cut  bushes 
there  for  the  purpose  of  clearing  out  the  ditch,  although  the 
right  management  of  the  master's  farm  required  that  the 
ditch  should  be  cleaned,  and  although  the  servant  only  did 
what  he  thought  necessary  to  that  end,  and  although  the  mas- 
ter relied  wholly  upon  his  servant's  judgment  in  the  entire 
management  of  the  premises.1 

Mr.  Justice  Keating  said,  the  powers  given  to  the  servant 
"  were  no  doubt  very  wide,  but  I  do  not  see  how  they  could 
authorize  a  wrongful  act  on  another  person's  land  or  render 
his  employers  liable  for  a  wilful  act  of  trespass."  It  is  true 
that  the  act  could  not  be  authorized  in  the  sense  of  being 
made  lawful,  but  the  same  is  true  of  every  wrongful  act  for 
which  the  principal  is  held.  As  to  the  act  being  wilful,  there 
was  no  evidence  that  it  was  so  in  any  other  sense  than  that 
in  which  every  trespass  might  be  said  to  be,  and  as  the  judge 
below  directed  a  verdict  for  the  defendant,  there  were  no 
presumptions  adverse  to  the  plaintiff  in  the  case.  Moreover, 
it  has  been  said  elsewhere  that  even  a  wilful  act  in  furtherance 
of  the  master's  business  might  charge  him. 2 

Mr.  Justice  Grove  attempted  to  draw  the  line  in  another 
way.  He  said,  "  There  are  some  things  which  may  be  so 
naturally  expected  to  occur  from  the  wrongful  or  negligent 
conduct  of  persons  engaged  in  carrying  out  an  authority 
given,  that  they  may  be  fairly  said  to  be  within  the  scope  of 
the  employment."  But  the  theory  of  agency  would  require 
the  same  liability  for  both  those  things  which  might  and 
those  which  might  not  be  so  naturally  expected,  and  this  is 
only  revolt  from  the  theory.  Moreover,  it  may  be  doubted 
whether  a  case  could  be  found  where  the  servant's  conduct 

^Bolingbroke  v.  Swindon  Local  Board,  L.  R.  9  C.  P.  575  (1874).  Cf. 
Lewis  v.  Read,  13  M.  &  W.  834;  Haseler  v.  Lemoyne,  5  C.  B.  yr.  s.  530. 

8  Howe  v.  Newmarch,  12  Allen,  49  (1866).  See  also  cases  as  to 
fraud,  inf.,  and  cf.  Craker  v.  Chicago  &  N.  W.  Ry.  Co.,  36  Wise.  657, 
669  (1875). 


408  VI.     CONTRACTS 


was  more  naturally  to  be  expected  for  the  purpose  of  accom- 
plishing what  he  had  to  do.1 

The  truth  is,  as  pretty  clearly  appears  from  the  opinions 
of  the  judges,  that  they  felt  the  difficulty  of  giving  a  rational 
•explanation  of  the  doctrine  sought  to  be  applied,  and  were  not 
inclined  to  extend  it.  The  line  between  right  and  wrong  cor- 
responded with  the  neighbor's  boundary  line,  and  therefore 
was  more  easily  distinguishable  than  where  it  depends  on  the 
difference  between  care  and  negligence,  and  it  was  just  so 
much  easier  to  hold  that  the  scope  of  the  servant's  employ- 
ment was  limited  to  lawful  acts. 

I  now  pass  to  fraud.  It  first  must  be  understood  that, 
whatever  the  law  may  be,  it  is  the  same  in  the  case  of  agents, 
strict o  sensu,  as  of  other  servants.  As  has  been  mentioned, 
the  fraudulent  servant  was  a  factor  in  the  first  reported 
decision  that  the  master  was  liable.2  Now  if  the  defrauded 
party  not  merely  has  a  right  to  repudiate  a  contract  fraudu- 
lently obtained,  or  in  general  to  charge  a  defendant  to  the 
extent  that  he  has  derived  a  benefit  from  another's  fraud,  but 
may  hold  him  answerable  in  solidum  for  the  damage  caused 
by  the  fraudulent  acts  of  his  servant  in  the  course  of  the  lat- 
ter's  employment,  the  ground  can  only  be  the  fiction  that  the 
act  of  the  servant  is  the  act  of  the  master. 

It  is  true  that  in  the  House  of  Lords3  Lord  Selborne  said 
that  the  English  cases  "  proceeded,  not  on  the  ground  of  any 
imputation  of  vicarious  fraud  to  the  principal,  but  because 
(as  it  was  well  put  by  Mr.  Justice  Willes  in  Barwick's  case4) 
"  with  respect  to  the  question  whether  a  principal  is  answer- 
able for  the  act  of  his  agent  in  the  course  of  his  master's  busi- 
ness, no  sensible  distinction  can  be  drawn  between  the  case 
of  fraud  and  the  case  of  any  other  wrong."  But  this  only 
puts  off  the  evil  day.  Why  is  the  principal  answerable  in 
the  case  of  any  other  wrong?  It  is,  as  has  been  seen,  because, 
in  the  language  of  Mr.  Justice  Littledale,  the  "  servants 
represent  the  master  himself,  and  their  acts  stand  upon  the 

*Cf.  Harlow  v.  Humiston,  6  Cowen,  189  (1826). 

Hern  v.  Nichols,  1  Salk.  289. 
8Houldsworth  v.  City  of  Glasgow  Bank,  5  App.  Cas.  317,  326,  327 

*L.  R.  2  Ex.  259. 


68.     HOLMES:   HISTORY  OF  AGENCY       409 

same  footing  as  his  own."  l  Indeed  Mr.  Justice  Willes,  in 
the  very  judgment  cited  by  Lord  Selborne,  refers  to  Mr. 
Justice  Littledale's  judgment  for  the  general  principle.  So 
Lord  Denman,  in  Fuller  v.  Wilson,2  "  We  think  the  principal 
and  his  agent  are  for  this  purpose  completely  identified." 
I  repeat  more  distinctly  the  admission  that  no  fiction  is  neces- 
sary to  account  for  the  rule  that  one  who  is  induced  to  con- 
tract by  an  agent's  fraud  may  rescind  as  against  the  inno- 
cent principal.  For  whether  the  fraud  be  imputed  to  the 
principal  or  not,  he  has  only  a  right  to  such  a  contract  as 
has  been  made,  and  that  contract  is  a  voidable  one.  But  when 
you  go  beyond  that  limit  and  even  outside  the  domain  of  con- 
tract altogether  to  make  a  man  answer  for  any  damages 
caused  by  his  agent's  fraud,  the  law  becomes  almost  incon- 
ceivable without  the  aid  of  the  fiction.  But  a  fiction  is  not  a 
satisfactory  reason  for  changing  men's  rights  or  liabilities, 
and  common-sense  has  more  or  less  revolted  at  this  point 
again  and  has  denied  the  liability.  The  English  cases  are 
collected  in  Houldsworth  v.  City  of  Glasgow  Bank.  3 

When  it  was  attempted  to  carry  identification  one  step 
further  still,  and  to  unite  the  knowledge  of  the  principal  with 
the  statement  of  the  agent  in  order  to  make  the  latter's  act 
fraudulent,  as  in  Cornfoot  v.  Fowke,4  the  absurdity  became 
more  manifest  and  dissent  more  outspoken.  As  was  most 
accurately  said  by  Baron  Wilde  in  a  later  case, 6  "  The  arti- 
ficial identification  of  the  agent  and  principal,  by  bringing 
the  words  of  the  one  side  by  side  with  the  knowledge  of  the 
other,  induced  the  apparent  logical  consequence  of  fraud. 
On  the  other  hand,  the  real  innocence  of  both  agent  and  prin- 
cipal repelled  the  notion  of  a  constructive  fraud  in  either. 
A  discordance  of  views,  varying  with  the  point  from  which 
the  subject  was  looked  at,  was  to  be  expected."  The  lan- 

1  Laugher  v.  Pointer,  5  B.  &  C.  547,  553.  See  Williams  v.  Jones,  3 
H.  &  C.  602,  609. 

*3  Q.  B.  58,  67;  s.  c.  reversed  on  another  ground,  but  admitting  this 
principle,  ib.  77  and  1009,  1010  (1842). 

8  5  App.  Cas.  317.    See  The  Common  Law,  p.  231. 

*6  M.  &  W.  358  (1840).  It  is  not  necessary  to  consider  whether 
the  case  was  rightly  decided  or  not,  as  I  am  only  concerned  with  this 
particular  ground. 

c  Udell  v.  Atherton,  7  H.  &  N.  172,  184  (1861). 


410  VI.     CONTRACTS 


guage  of  Lord  Denman,  just  quoted,  from  Fuller  v.  Wilson, 
was  used  with  reference  to  this  subject. 

The  restrictions  which  common-sense  has  imposed  on  the 
doctrine  of  undisclosed  principal  are  well  known.  An  undis- 
closed principal  may  sue  on  his  agent's  contract,  but  his  re- 
covery is  subject  to  the  state  of  accounts  between  the  agent 
and  third  person.1  He  may  be  sued,  but  it  is  held  that  the 
recovery  will  be  subject  to  the  state  of  accounts  between 
principal  and  agent,  if  the  principal  has  paid  fairly  before 
the  agency  was  discovered;  but  it  is,  perhaps,  doubtful 
whether  this  rule  or  the  qualification  of  it  is  as  wise  as  the 
former  one. 2 

Then  as  to  ratification.  It  has  nothing  to  do  with  es- 
toppel,3 but  the  desire  to  reduce  the  law  to  general  principles 
has  led  some  courts  to  cut  it  down  to  that  point.  *  Again,  the 
right  to  ratify  has  been  limited  by  considerations  of  justice 
to  the  other  party.  It  has  been  said  that  the  ratification 
must  take  place  at  a  time  and  under  circumstances  when  the 
would-be  principal  could  have  done  the  act ;  5  and  it  has  been 
so  held  in  some  cases  when  it  was  manifestly  just  that  the 
other  party  should  know  whether  the  act  was  to  be  considered 
the  principal's  or  not,  as  in  the  case  of  an  unauthorized 
notice  to  quit,  which  the  landlord  attempts  to  ratify  after 
the  time  of  the  notice  has  begun  to  run.  6  But  it  is  held  that 
bringing  an  action  may  be  subsequently  ratified. 7 

1  now  take  up  pleading.     It  is  settled  that  an  assumpsit8 
to  or  by  a  servant  for  his  master  may  be  laid  as  an  assumpsit 
to  or  by  the  master.     But  these  are  cases  where  the  master 
has  commanded  the  act,  and,  therefore,  as  I  showed  in  the 
beginning  of  this  discussion,  may  be  laid  on  one  side.     The 

1Rabone  v.  Williams,  7  T.  R.  360  (1785);  George  v.  Clagett,  7  T.  R. 
359  (1797)  ;  Carr  v.  Hinchliff,  4  B.  &  C.  547  (1825)  ;  Borries  v.  Imperial 
Ottoman  Bank,  L.  R.  9  C.  P.  38  (1873)  ;  Semenza  v.  Brinsley,  18  C.  B. 
N.  s.  467,  477  (1865)  ;  Ex  parte  Dixon,  4  Ch.  D.  133. 

2  Armstrong  v.  Stokes,  L.  R.  7  Q.  B.  598,  610;  Irvine  v.  Watson,  5 
Q.  B.  D.  414. 

3  See  Metcalf  v.  Williams,  144  Mass.  452,  454,  and  cases  cited. 
•Doughaday  v.  Crowell,  3  Stockt.    (N.  J.)    201;   Bird  v.   Brown,  4 

Exch.  788,  799. 

6  Bird  v.  Brown,  4  Exch.  788. 

6  Doe  v.  Goldwin,  2  Q.  B.  143. 

7  Ancona  v.  Marks,  7  H.  &  N.  686. 

8  Seignior  and  Wolmer's  Case,  Godbolt,  360. 


63.     HOLMES:   HISTORY  OF  AGENCY       411 

same  thing  is  true  of  a  trespass  commanded  by  the  master.1 
But  when  we  come  to  conduct  which  the  master  has  not  com- 
manded, but  for  which  he  is  responsible,  the  difficulty  becomes 
greater.  It  is,  nevertheless,  settled  that  in  actions  on  the  case 
the  negligence  of  the  servant  is  properly  laid  as  the  negli- 
gence of  the  master,2  and  if  the  analogy  of  the  substantive 
law  is  to  be  followed,  and  the  fiction  of  identity  is  to  be  car- 
ried out  to  its  logical  results,  the  same  would  be  true  of  all 
pleading.  It  is  so  held  with  regard  to  fraud.  "  The  same 
rule  of  law  which  imputes  to  the  principal  the  fraud  of  the 
agent  and  makes  him  answerable  for  the  consequences  justi- 
fies the  allegation  that  the  principal  himself  committed  the 
wrong."  3  Some  American  cases  have  applied  the  same  view 
to  trespass,4  and  have  held  that  this  action  could  be  main- 
tained against  a  master  whose  servant  had  committed  a  tres- 
pass for  which  he  was  liable  although  he  had  not  commanded 
it.  But  these  decisions,  although  perfectly  reasonable,  seem 
to  have  been  due  rather  to  inadvertence  than  to  logic,  in  the 
first  instance,  and  the  current  of  authority  is  the  other  way. 
Baron  Parke  says,  "  The  maxim  '  Qui  facit  per  alium,  facit 
per  se '  renders  the  master  liable  for  all  the  negligent  acts  of 
the  servant  in  the  course  of  his  employment,  but  that  liability 
does  not  make  the  direct  act  of  the  servant  the  direct  act  of 
master.  Trespass  will  not  lie  against  him;  case  will,  in  ef- 
fect, for  employing  a  careless  servant."1  Considered  as 
reasoning,  it  would  be  hard  to  unite  more  errors  in  as  many 
words.  "  Qui  facit  per  alium,  facit  per  se  "  as  an  axiom 
admitted  by  common-sense  goes  no  farther  than  to  make  a 
man  liable  for  commanded  trespasses,  and  for  them  trespass 
lies.  If  it  be  extended  beyond  that  point  it  simply  embodies 
the  fiction,  and  the  precise  point  of  the  fiction  is  that  the 
direct  act  of  one  is  treated  as  if  it  were  the  direct  act  of  an- 
other. To  avoid  this  conclusion  a  false  reason  is  given  for  the 

1  Gregory  v.  Piper,  9  B.  &  C.  591. 

*Brucker  v.  Fremont,  6  T.  R.  659  (1796). 

1  Comstock,  Ch.  J.,  in  Bennett  v.  Judson,  21  N.  Y.  238  (1860) ;  ace. 
Barwick  v.  English  Joint  Stock  Bank,  L.  R.  2  Ex.  259  (1867). 

*  Andrew  v.  Howard,  36  Vt.  248  (1863)  ;  May  v.  Bliss,  22  Vt.  477 
(1850). 

•Sharrod  v.  London  &  N.  W.  Ry.  Co.,  4  Exch.  580,  585  (1849).  Cf. 
Morley  v.  Gaisford,  2  H.  Bl.  442  (1795). 


412  VI.     CONTRACTS 

liability  in  general.1  It  is,  as  has  been  shown,  the  old  fallacy 
of  the  Roman  jurists,  and  is  disposed  of  by  the  decisions  that 
no  amount  of  care  in  the  choice  of  one's  servant  will  help 
the  master  in  a  suit  against  him.2  But  although  the  reason- 
ing is  bad,  the  language  expresses  the  natural  unwillingness 
of  sensible  men  to  sanction  an  allegation  that  the  defendant 
directly  brought  force  to  bear  on  the  plaintiff,  as  the  proper 
and  formal  allegation,  when  as  a  matter  of  fact  it  was  another 
person  who  did  it  by  his  independent  act,  and  the  defendant 
is  only  answerable  because  of  a  previous  contract  between 
himself  and  the  actual  wrong-doer.3  Another  circumstance 
may  have  helped.  Usually  the  master  is  not  liable  for  his 
servant's  wilful  trespasses,  and,  therefore,  the  actions  against 
him  stand  on  the  servant's  negligence  as  the  alternative 
ground  on  which  anybody  is  responsible.  There  was  for  a  time 
a  confused  idea  that  when  the  cause  of  action  was  the  defend- 
ant's negligence,  the  proper  form  of  action  was  always  case.4 
Of  course  if  this  was  true  it  applied  equally  to  the  imputed 
negligence  of  a  servant.  And  thus  there  was  the  farther 
possibility  of  confounding  the  question  of  the  proper  form 
of  action  with  the  perfectly  distinct  one  whether  the  defend- 
ant was  liable  at  all. 

I  come  finally  to  the  question  of  damages.  In  those  States 
where  exemplary  damages  are  allowed,  the  attempt  naturally 
has  been  made  to  recover  such  damages  from  masters  when 
their  servants'  conduct  has  been  such  as  to  bring  the  doc- 
trine into  play.  Some  courts  have  had  the  courage  to  be 
consistent.5  "  What  is  the  principle,"  it  is  asked,  "  upon 
which  this  rule  of  damages  is  founded?  It  is  that  the  act 
of  the  agent  is  the  act  of  the  principal  himself.  .  .  .  The 
law  has  established,  to  this  extent,  their  legal  unity  and  iden- 

irThe  same  reason  is  given  in  M'Manus  v.  Crickett,  1  East,  106,  10& 
(1800).  Compare  1  Harg.  Law  Tracts,  347;  Walcott  v.  Swampscott, 
1  Allen,  101,  103;  Lane  v.  Cotton,  12  Mod.  472,  488,  489. 

*Dansey  v.  Richardson,  3  El.  &  Bl.  144,  161.      See  p.  406. 

8  M'Manus  v.  Crickett,  1  East.  106,  110  (1800);  Brucker  v.  Fromont, 
6  T.  R.  659  (1796). 

4 Ogle  v.  Barnes,  8  T.  R.  188  (1799).  Cf.  Leame  v.  Bray,  3  East,  593 
(1803). 

6  New  Orleans,  Jackson,  &  Great  Northern  R.  R.  Co.  v.  Bailey,  40 
Miss.  395,  452,  453,  456  (1866)  ;  ace.  Atlantic  &  G.  W.  Ry.  Co.  v.  Dunn, 
19  Ohio  St.  162. 


63.     HOLMES:   HISTORY  OF  AGENCY       413 

tity.  .  .  .  This  legal  unity  of  the  principal  and  agent,  in 
respect  to  the  wrongful  or  tortious,  as  well  as  the  rightful 
acts,  of  the  agent,  done  in  the  course  of  his  employment, 
is  an  incident  which  the  law  has  wisely  attached  to  the  rela- 
tion, from  its  earliest  history."  "  If  then  the  act  of  the 
agent  be  the  act  of  the  principal  in  law,  and  this  legal  iden- 
tity is  the  foundation  of  the  responsibility  of  the  principal, 
there  can  be  no  escape  from  his  indemnity  to  the  full  extent 
of  civil  responsibility."  An  instruction  that  the  jury  might 
give  punitive  damages  was  upheld,  and  the  plaintiff  had  judg- 
ment for  $12,000.  Whatever  may  be  said  of  the  practical 
consequences  or  the  English  of  the  opinion  from  which  these 
extracts  are  made,  it  has  the  merit  of  going  to  the  root  of 
the  matter  with  great  keenness.  On  the  other  hand,  other 
courts,  more  impressed  by  the  monstrosity  of  the  result 
than  by  the  elegant  ia  juris,  have  peremptorily  declared  that 
it  was  absurd  to  punish  a  man  who  had  not  been  to  blame, 
and  have  laid  down  the  opposite  rule  without  hesitation.1 

I  think  I  now  have  made  good  the  propositions  which  I 
undertook  at  the  beginning  of  this  essay  to  establish.  I  fully 
admit  that  the  evidence  here  collected  has  been  gathered 
from  nooks  and  corners,  and  that  although  in  the  mass  it  ap- 
pears to  me  imposing,  it  does  not  lie  conspicuous  upon  the 
face  of  the  law.  And  this  is  equivalent  to  admitting,  as  I 
do,  that  the  views  here  maintained  are  not  favorites  with  the 
courts.  How  can  they  be?  A  judge  would  blush  to  say 
nakedly  to  a  defendant :  "  I  can  state  no  rational  ground  on 
which  you  should  be  held  liable,  but  there  is  a  fiction  of  law 
which  I  must  respect  and  by  which  I  am  bound  to  say  that 
you  did  the  act  complained  of,  although  we  both  know  per- 
fectly well  that  it  was  done  by  somebody  else  whom  the  plain- 
tiff could  have  sued  if  he  had  chosen,  who  was  selected  with 
the  utmost  care  by  you,  who  was  in  fact  an  eminently  proper 
person  for  the  employment  in  which  he  was  engaged,  and 
whom  it  was  not  only  your  right  to  employ,  but  much  to  the 
public  advantage  that  you  should  employ."  That  would  not 

*Hagar  v.  Providence  &  Worcester  R.  R.,  3  R.  I.  88  (1854);  Cleg- 
horn  v.  New  York  Central  &  Hudson  River  R.  R.,  56  N.  Y.  44  (1874). 
Cf.  Craker  v.  Chicago  &  N.  W.  R.  R.,  36  Wis.  657  (1875). 


414  VI.     CONTRACTS 


be  a  satisfactory  form  in  which  to  render  a  decision  against 
a  master,  and  it  is  not  pleasant  even  to  admit  to  one's  self 
that  such  are  the  true  grounds  upon  which  one  is  deciding. 
Naturally,  therefore,  judges  have  striven  to  find  more  intel- 
ligible reasons,  and  have  done  so  in  the  utmost  good  faith; 
for  whenever  a  rule  of  law  is  in  fact  a  survival  of  ancient 
traditions,  its  ancient  meaning  is  gradually  forgotten,  and  it 
has  to  be  reconciled  to  present  notions  of  policy  and  justice, 
or  to  disappear. 

If  the  law  of  agency  can  be  resolved  into  mere  applications 
of  general  and  accepted  principles,  then  my  argument  fails ; 
but  I  think  it  cannot  be,  and  I  may  suggest,  as  another 
ground  for  my  opinion  beside  those  which  I  have  stated 
heretofore,  that  the  variety  of  reasons  which  have  been  of- 
fered for  the  most  important  application  of  the  fiction  of 
identity,  the  liability  of  the  master  for  his  servant's  torts, 
goes  far  to  show  that  none  of  those  reasons  are  good.  Baron 
Parke,  as  we  have  seen,  says  that  case  is  brought  in  effect  for 
employing  a  negligent  servant.  Others  have  suggested  that 
it  was  because  it  was  desirable  that  there  should  be  some 
responsible  man  who  could  pay  the  damages.1  Mr.  Justice 
Grove  thinks  that  the  master  takes  the  risk  of  such  offences 
as  it  must  needs  be  should  come. 

I  admit  my  scepticism  as  to  the  value  of  any  such  general 
considerations,  while  on  the  other  hand  I  should  be  perfectly 
ready  to  believe,  upon  evidence,  that  the  law  could  be  justified 
as  it  stands  when  applied  to  special  cages  upon  special 
grounds.2 

^ee  Williams  v.  Jones,  3  H.  &  C.  256,  263;  1  Harg.  Law  Tracts,  347. 
2Cf.  what  is  said  as  to  common  carriers  in  The  Common  Law,  204, 
205. 


PART   VII 

TORTS 
64.  The  History  of  Trover. 


JAMES  BARR  AMES 


65.  The  History  of  the  Law  of  Defamation. 

VAN  VECHTEN  VEEDER 

66.  The  History  of  Responsibility  for  Tortious  Acts. 

JOHN  HENRY  WIGMORB 


[OTHER  REFERENCES  ON  THE  SUBJECTS  or  THIS  PART  ARE  AS  FOLLOWS: 

In  Select  Essays: 

The  History  of  Agency  (in  Torts),  by  O.  W.  Holmes,  Jr.  (No.  63, 
Vol.  III). 

The  Disseisin  of  Chattels,  by  J.  B.  Ames  (No.  67,  Vol.  III). 

In  other  Series  and  Journals: 

Law  and  Morals,  by  J.  B.  Ames  (Address  at  the  f5th  Anniversary 
of  the  Cincinnati  Law  School,  1908;  reprinted  in  the  Harvard  Law 
Review,  1908,  XXII,  97). 

The  Historical  Method  of  the  Study  of  Law,  illustrated  by  the 
Master's  Liability  for  his  Servant's  Tort,  by  J.  M.  Gest.  (Address  at 
the  Temple  College,  Philadelphia,  1902.)] 


64.    THE    HISTORY    OF    TROVER1 

BY  JAMES  BARE  AMESZ 

THE  classic  count  in  trover  alleges  that  the  plaintiff 
was  possessed,  as  of  his  own  property,  of  a  certain 
chattel;  that  he  afterwards  casually  lost  it;  that  it  came 
to  the  possession  of  the  defendant  by  finding;  that  the  de- 
fendant refused  to  deliver  it  to  the  plaintiff  on  request; 
and  that  he  converted  it  to  his  own  use,  to  the  plaintiff's 
damage.  And  yet  throughout  the  history  of  this  action  the 
last  of  these  five  allegations  has  been  the  only  one  that  the 
plaintiff  must  prove.  The  averments  of  loss  and  finding 
are  notorious  fictions,  and  that  of  demand  and  refusal  is 
surplusage,  being  covered  by  the  averment  of  conversion. 
Under  the  first  allegation  the  plaintiff  need  not  prove  that 
the  chattel  was  his  own  property,  or  that  he  was  in  actual 
possession  of  it.  It  is  enough  to  show  actual  possession  as 
a  bailee,  finder,  or  trespasser,  or  to  prove  merely  an  im- 
mediate right  of  possession. 

A  greater  discrepancy  than  that  here  pointed  out  between 
a  count  and  the  evidence  required  to  support  it  can  hardly 
be  found  in  any  other  action.  But  it  is  generally  true  that 
averments  in  pleading,  however  inaccurate,  superfluous,  or 
fictitious  they  may  be  at  a  given  time,  were  once  accurate 
and  full  of  legal  significance.  The  count  in  trover  is  no 
exception  to  this  rule.  To  make  this  clear,  however,  it  is 
necessary  to  consider  in  some  detail  the  remedies  at  the  com- 
mand of  the  plaintiff,  in  early  English  law,  for  the  asporta- 
tion,  detention,  or  destruction  of  chattels.  These  remedies 

*This  Essay  was  first  published  in  the  Harvard  Law  Review,  1897- 
1898,  vol.  XI,  pp.  277-289,  374-386. 

8  A  biographical  note  of  this  author  is  prefixed  to  Essay  No.  43,  in 
Volume  II  of  this  Collection.  Additions  are  in  brackets. 


418  VII.     TORTS 


were  the  four  actions,  known  as  Appeals  of  robbery  or  lar- 
ceny, Trespass,  Replevin,  and  Detinue. 

APPEAL  OF  ROBBERY  OR  LARCENY 

For  a  century  after  the  Norman  Conquest  there  was  no 
public  prosecution  of  crime.  Proceedings  against  wrong- 
doers, whether  criminals  or  mere  tort-feasors,  depended  upon 
the  initiative  of  the  parties  injured,  and  took  the  form  of 
private  actions.  These  actions,  in  the  royal  courts,  were 
called  appeals,  and,  in  their  final  development,  fell  into  three 
classes:  (1)  the  compensatory  appeals,  i.  e.,  appeals  of 
battery,  mayhem,  and  imprisonment,  in  which  the  appellor 
recovered  damages;  (2)  the  punitory  appeals,  i.  e.,  appeals 
of  homicide,  rape,  arson,  and  also  robbery  or  larceny  of 
chattels  worth  126?.  or  more,  where  the  stolen  chattels  could 
not  be  recovered,  in  which  the  punishment  of  the  defendant 
was  the  sole  object;1  (3)  the  recuperatory  appeals  of  rob- 
bery or  larceny,  in  which  the  appellor  sought  to  recover 
the  stolen  chattels  as  well  as  to  discover  and  punish  the 
thief.  It  is  with  this  class  of  appeals  that  we  are  concerned 
in  this  paper. 

The  procedure  in  the  Anglo-Norman  period  is  described 
by  Glanvil,  Bracton,  Britton,  and  Fleta.2  Britton's  account 
is  the  fullest.  The  victim  of  the  theft  upon  the  discovery 
of  his  loss  raised  hue  and  cry,  and  with  his  neighbors  made 
fresh  pursuit  after  the  thief.  If  the  latter  was  caught,  on 
fresh  pursuit,  with  the  "  mainour,"  i.  e.,  with  the  pursuer's 
goods  in  his  possession,  the  case  was  disposed  of  in  the  most 
summary  manner.  The  prisoner  was  taken  at  once  to  an 
impromptu  court,  and  if  the  pursuer,  with  others,  made  oath 
that  the  goods  had  been  stolen  from  him,  was  straightway 
put  to  death,  without  a  hearing,  and  the  pursuer  recovered 

1MThis  appeal  is  not  a  real  or  personal  action  .  .  .  the  woman 
(appellor)  is  seeking  vengeance  for  the  death  of  her  husband."  Y.  B. 
9  Hen.  IV.  f.  2,  pi.  8.  The  compensatory  appeals,  in  their  origin,  were 
likewise  actions  for  vengeance.  1  Nich.  Britt.  124;  Fleta,  Lib.  I.  cap. 
40,  42;  Y.  B.  18  Ed.  III.  f.  20,  pi.  31;  2  Pollock  &  Maitland,  Hist.  Eng. 
Law,  487. 

'Glanvil,  Bk.  10,  ch.  15-17;  Bract.  150  b-152;  1  Nich.  Britt.  55-60; 
Fleta,  Lib.  I.  ch.  38;  see  also  Mirror  of  Justices,  Seld.  Soc'y,  Bk.  III. 
c.  13. 


64.     AMES:    THE  HISTORY  OF  TROVER    419 

his  goods.  Britton's  statement  is  borne  out  by  several  re- 
ported cases.1 

If  not  taken  freshly  on  the  fact,  the  person  found  in 
possession  of  the  chattel  had  a  right  to  be  heard.  The 
Appellor,  placing  his  hand  upon  the  chattel,2  charged  the 
appellee  with  the  theft.  There  were  several  modes  of  meet- 
ing the  charge.  The  appellee  might  deny  it  in  toto.  The 
controversy  was  then  settled  by  wager  of  battle,  unless  the 
appellee  preferred  a  trial  by  jury.3  The  chattel  went  to  the 
winner  in  the  duel. 

The  appellee  might,  on  the  other  hand,  claim  merely  as 
the  vendee  or  bailee  of  a  third  person.  He  would  then  vouch 
this  third  person  as  a  warrantor  to  appear  and  defend  the 
appeal  in  his  stead.  Glanvil  gives  the  writ  to  compel  the 
appearance  of  the  warrantor.  4  If  the  warrantor  failed  to 
appear,  or,  appearing,  successfully  disputed  the  sale  or  bail- 
ment by  wager  of  battle,5  the  appellor  recovered  the  chattel, 
and  the  appellee  was  hanged.  If  the  appellee  won  in  the 
duel  with  the  vouchee,  the  vouchee  was  hanged.6  If  the 
warrantor  came  and  acknowledged  the  sale  or  bailment,  the 
chattel  was  put  temporarily  in  his  hands,  the  appellee  with- 
drew from  the  appeal,  and  the  appellor  thereupon  appealed 
the  warrantor  as  the  thief  or  with  the  words  that  he  knew  no 

1  Northumberland  Assize  Rolls,  79    (40  Hen.  III.).     "Stephanus  de 
S  .  .  .  captus  fuit  cum  quodam  equo  furato  per  sectam  Willelmi  T.  et 
decollatus    fuit,   praesente   ballivo    domini    Regis,    et    praedictus   equus 
deliberatus   fuit   praedicto  W.    qui   sequebatur  pro   equo   illo   in   pleno 
comitatu."     In    1271    one   Margaret   appealed   Thomas    and   Ralph    for 
killing   her  brothers.      But   she   was    imprisoned    for   her    false    appeal, 
since  Thomas  and  Ralph,  who  had  pursued  and  beheaded  her  brothers 
as  thieves  taken  with  the  "mainour,"  had  acted  according  to  the  law 
and  custom  of  the  realm.     PI.  Ab.  184,  col.  1,  rot.  24.    This  custom  was 
condemned  by  the  justices,  in   1302,   who  said  that  one  who  had  be- 
headed a  manifest  thief  should  be  hanged  himself.     Y.  B.  30  &  31  Ed. 
I.  545.     See  2  Pollock  &  Maitland,  Hist.  Eng.  Law,  495. 

2  Bract.  Note  Book,  No.  824. 

8  As  early  as  1319  the  rule  was  established  that  a  thief  taken  with 
the  "mainour"  could  not  defend  an  appeal  by  wager  of  battle,  but 
must  put  himself  upon  the  jury;  "for  the  appeal  has  two  objects,  to 
convict  the  thief  and  to  recover  the  stolen  chattel,  and  the  law  recog- 
nizes that  the  thief,  though  guilty,  might  by  bodily  strength  vanquish 
the  appellor  and  thus  keep  the  chattel  without  reason."  Fitz.  Cor.  375. 
See  also  Fitz.  Cor.  157,  125,  100,  268. 

4  Book  X.  ch.  16. 

BSel.  PI.  of  Crown,  1  Seld.  Soc'y,  No.  124. 

•Bract.  Note  Book,  No.  1435. 


420  VII.     TORTS 


other  thief  than  him.1  The  warrantor  might  in  his  turn 
vouch  to  warranty  or  dispute  the  appellor's  right.  If  the 
appellor  was  finally  successful  against  any  warrantor,  he 
recovered  the  chattel.  If  he  was  unsuccessful,  the  chattel 
was  restored  to  the  original  appellee.  This  vouching  to 
warranty  is  to  be  regarded  as  the  following  up  of  the  trail 
of  the  thief,  whose  capture  is  an  essential  object  of  the 
whole  procedure. 

The  appellee  might,  thirdly,  though  having  no  one  to 
vouch  as  a  warrantor,  claim  to  have  bought  the  chattel  at 
a  fair  or  market.  Upon  proof  of  this  he  was  acquitted 
of  the  theft;  but  the  appellor,  upon  proof  of  his  former 
possession  and  loss  of  the  chattel,  recovered  it.  There  was, 
as  yet,  no  doctrine  of  purchase  in  market  overt. 

This  private  proceeding  for  the  capture  of  the  thief  and 
recovery  of  the  stolen  chattel,  as  described  in  English  law 
treatises  and  decisions  of  the  thirteenth  century,  is  of  Teu- 
tonic origin.  Its  essential  features  are  found  in  the  Salic 
law  of  the  fifth  century;2  but  by  the  middle  of  the  thir- 
teenth century  this  time-honored  procedure  had  seen  its  best 
days.  The  public  prosecution  of  crime  was  introduced  by 
the  Assize  of  Clarendon  in  1166,  and  with  the  increasing 
effectiveness  of  the  remedy  by  indictment,  the  victims  of  rob- 
bery or  theft  were  more  and  more  willing  to  leave  the  pun- 
ishment of  wrong-doers  in  the  hands  of  the  Crown.  On  the 
other  hand,  the  path  of  him  who  would  use  the  appeal  as 
a  means  of  recovering  the  chattel  stolen  from  him  was  beset 
with  difficulties. 

The  appellor  must,  in  the  first  place,  have  made  fresh 
pursuit  after  the  thief.  In  1334  it  was  said  by  counsel  that 
if  he  whose  goods  were  stolen  came  within  the  year  and  a 
day,  he  should  be  received  to  have  back  his  chattels.  But 
Aldeburgh,  J.,  answered :  "  Sir,  it  is  not  so  in  your  case, 
but  your  statement  is  true  in  regard  to  waif  and  estray." ; 

1  Sel.  PI.  of  Crown,  1  Seld.  Soc'y,  No.  192 ;  Bract.  Note  Book,  No.  67. 

2Sohm,  Der  Process  d.  Lex.  Salica;  Jobbe-Duval,  La  Revendication 
des  Meubles;  Brunner,  Rechtsgeschichte,  1st  ed.,  I.  495  et  seq.;  Schroe- 
der,  Lehrbuch  d.  deutschen  Rechtsgeschichte,  346  et  seq. 

8  Y.  B.  8  Ed.  III.  f.  10,  pi.  30.  See  also  Y.  B.  1  Hen.  IV.  f.  4,  pi.  5; 
Y.  B.  7  Hen.  IV.  f.  31,  pi.  16;  Y.  B.  7  Hen.  IV.  f.  43,  pi.  9;  Roper's 
Case,  2  Leon.  108.  In  a  case  cited  in  Sel.  PI.  Ct.  Adm.  6  Seld.  Soc'y, 


64-     AMES:    THE  HISTORY  OF  TROVER    421 

Secondly,  the  thief  must  have  been  captured  by  the  ap- 
pellor  himself  or  one  of  his  company  of  pursuers.  In  one 
case  the  owner  of  the  stolen  chattel  pursued  the  thief  as  far 
as  a  monastery,  where  the  thief  took  refuge  in  the  church 
and  abjured  the  realm.  Afterward  the  coroner  delivered  the 
chattel  to  the  owner  because  he  had  followed  up  and  tried  to 
take  the  thief.  For  having  foolishly  delivered  the  chattel 
the  coroner  was  brought  to  judgment  before  the  justices  in 
eyre. l  So  if  the  thief  was  arrested  on  suspicion  by  a  bailiff, 
the  king  got  the  stolen  chattel,  because  the  thief  was  not 
arrested  by  the  party.2 

Thirdly,  the  thief  must  be  taken  with  the  goods  in  his 
possession.  If,  for  instance,  the  goods  were  waived  by  the 
thief  and  seized  by  the  lord  of  the  franchise  before  the  pur- 
suers came  up,  the  lord  was  entitled  to  them. 3 

Fourthly,  the  thief  must  be  convicted  on  the  pursuer's 
appeal.  "  It  is  coroner's  law  that  he,  whose  goods  were 
taken,  shall  not  have  them  back  unless  the  felon  be  attainted 
at  his  suit."  4  In  one  case  the  verdict  in  the  case  was  not 
guilty,  and  that  the  appellee  found  the  goods  in  the  high- 
way. The  goods  were  present  in  the  court.  It  was  asked 
if  the  goods  belonged  to  the  appellor,  and  found  that  they 
did.  Nevertheless,  they  were  forfeited  to  the  king.  5  In  an- 
other case  the  thief  was  appealed  by  three  persons  for  dif- 
ferent thefts.  He  was  convicted  upon  the  first  appeal  and 
hanged.  The  goods  stolen  from  the  two  other  appellors  were 
forfeited  to  the  king.  6  The  result  was  the  same  if  the  pur- 
suer's failure  to  convict  was  because  the  thief  rather  than 

XL.,  restitution  was  ordered  in  the  Admiralty  Court  "because  by  the 
law  maritime  the  ownership  of  goods  taken  by  pirates  is  not  divested 
unless  the  goods  remain  in  the  pirates'  possession  for  a  night."  See 
also  Y.  B.  7  Ed.  IV.  f.  14,  pi.  5;  and  compare  Y.  B.  22  Ed.  III.  f.  16,  pi. 
63. 

*Y  B.  30  &  31  Ed.  I.  527. 

*Fitz.  Cor.  379  (12  Ed.  II.).  See  also  Y.  B.  30  &  31  Ed.  I.  509; 
Y.  B.  30  &  31  Ed.  I.  513;  Fitz.  Cor.  392  (8  Ed.  II.);  Fitz.  Cor.  190, 
criticising  Y.  B.  26  Lib.  Ass.  17. 

•Dickson's  Case,  Hetley,  64.    But  see  Rook  and  Denny,  2  Leon.  192. 

*Y.  B.  8  Ed.  III.  f.  10,  pi.  30;  Fitz.  Avow.  151,  per  Schardelow,  J. 

•Fitz.  Cor.  367  (3  Ed.  III.). 

8Y.  B.  44  Ed.  III.  f.  44,  pi.  57;  Fitz.  Cor.  95.  But  see  Y.  B.  7  Hen. 
IV.  f.  31,  pi.  16,  Fitz.  Cor.  21;  and  compare  Y.  B.  4  Ed.  IV.  f.  11,  pi. 
16,  Fitz.  Cor.  26. 


422  VII.     TORTS 


be  taken  killed  himself,1  or  took  refuge  in  a  church  and  ab- 
jured the  realm,2  or  died  in  prison.3 

Finally,  since  the  rule  which  denied  the  right  of  defence 
by  wager  of  battle  to  one  taken  with  the  "  mainour  "  seems 
not  to  have  been  established  before  the  fourteenth  century,4 
the  appellor  was  exposed  to  the  risk  of  defeat  and  consequent 
loss  of  his  chattels  by  reason  of  the  greater  physical  skill  and 
endurance  of  the  appellee.  There  was  the  danger,  also,  that 
an  appellee  of  inferior  physical  ability  might  fraudulently 
vouch  as  a  warrantor  an  expert  fighter,  who,  as  a  paid 
champion,  would  take  the  place  of  the  original  appellee. 
To  avoid  the  duel  with  this  champion,  the  appellor  must 
establish  by  his  secta  or  by  an  inquest  that  the  ostensible 
warrantor  was  a  hired  champion.  5 

It  is  obvious  from  this  account  of  the  appeal  of  robbery 
or  larceny  that  the  absence  of  pecuniary  redress  against  a 
thief  must  sooner  or  later  become  an  intolerable  injustice  to 
those  whose  goods  had  been  stolen,  and  that  a  remedy  would 
be  found  for  this  injustice.  This  remedy  was  found  in  the 
form  of  an  action  for  damages,  the  familiar  action  of 

TRESPASS  DE  BONIS  ASPORTATIS 

The  recorded  instances  of  trespass  in  the  royal  courts 
prior  to  1252  are  very  few.  In  the  "  Abbreviatio  Placi- 
torum  "  some  twenty-five  cases  of  appeals  of  different  kinds 
are  mentioned,  belonging  to  the  period  1194-1252,  but  not  a 

'Fitz.  Cor.  318  (3  Ed.  III.). 

2Y.  B.  30  Ed.  I.  527;  Fitz.  Cor.  162  (3  Ed.  III.).  But  see  Fitz.  Cor. 
380  (12  Ed.  II.)  semble,  and  Y.  B.  26  Lib.  Ass.  32,  Fitz.  Cor.  194, 
(semble),  contra. 

8Y.  B.  4  Ed.  IV.  f.  11,  pi.  16,  Fitz.  Cor.  26.  But  see  contra,  Fitz. 
Cor.  379  (12  Ed.  II.)  and  Fitz.  Forf.  15  (44  Ed.  III.).  In  the  last  half 
of  the  fourteenth  century  this  rule  was  so  far  relaxed  that  the  pursuer 
might  recover  his  chattels  if  the  conviction  of  the  thief  was  prevented 
by  his  standing  mute.  Y.  B.  26  Lib.  Ass.  17;  Y.  B.  44  Lib.  Ass.  30; 
Y.  B.  8  Hen.  IV.  f.  1,  pi.  2,  Fitz.  Cor.  71;  or  claiming  benefit  of  clergy: 
Y.  B.  1  Hen.  IV.  f.  4,  pi.  5;  Y.  B.  10  Hen.  IV.  f.  5,  pi.  18,  Fitz.  Cor. 
466;  Y.  B.  2  R.  III.  f.  12,  pi.  31;  Y.  B.  3  Hen.  VII.  f.  12,  pi.  10. 

4  Supra,  n.  2,  p.  419. 

6  The  appellor  succeeded  in  doing  so  in  the  case  reported  in  Sel.  PI. 
Cor.,  1  Seld.  Soc'y,  No.  192,  and  the  champion  with  special  leniency  was 
condemned  to  the  loss  of  one  of  his  feet,  instead  of  losing  both  foot  and 
fist. 


64-     AMES:    THE  HISTORY  OF  TROVER    423 

single  case  of  trespass.  In  the  year  37  Henry  III.  (1252- 
1253)  no  fewer  than  twenty-five  cases  of  trespass  are  re- 
corded, and  from  this  time  on  the  action  is  frequent,  while 
appeals  are  rarely  brought.  It  is  reasonable  to  suppose  that 
the  writ  of  trespass  was  at  first  granted  as  a  special  favor, 
and  became,  soon  after  the  middle  of  the  fourteenth  century, 
a  writ  of  course. 

The  introduction  of  this  action  was  a  very  simple  matter. 
An  original  writ  issued  out  of  Chancery  directing  the  sheriff 
to  attach  the  defendant  to  appear  in  the  King's  Bench  to  an- 
swer the  plaintiff.  The  jurisdiction  of  the  King's  Court  was 
based  upon  the  commission  of  an  act  vi  et  armis  and  contra 
pacem  regis,  for  which  the  unsuccessful  defendant  had  to 
pay  a  fine.  These  words  were  therefore  invariably  inserted 
in  the  declaration.  Indeed,  the  count  in  trespass  was  identical 
with  the  corresponding  appeal,  except  that  it  omitted  the 
offer  of  battle,  concluded  with  an  ad  damnum  clause,  and 
substituted  the  words  vi  et  armis  for  the  words  of  felony,  — 
feloniter,  felonice,  in  felonia,  or  in  robberia.  The  count  in 
the  appeal  was  doubtless  borrowed  from  the  ancient  count  in 
the  popular  or  communal  courts,  the  words  of  felony  and 
contra  pacem  regis  being  added  to  bring  the  case  within  the 
jurisdiction  of  the  royal  courts.  * 

The  procedure  of  the  King's  Courts  was  much  more  ex- 
peditious than  that  of  the  popular  courts,  the  trial  was  by 
jury  2  instead  of  by  wager  of  law,  and  judgment  was  satis- 
fied by  levy  of  execution  and  sale  of  the  defendant's  property, 
whereas  in  the  popular  courts  distress  and  outlawry  were 
the  limits  of  the  plaintiff's  rights.  As  an  appeal  might  be 
brought  for  the  theft  of  any  chattel  worth  12df.  or  more,  and 
as  the  owner  now  had  an  option  to  bring  trespass  where  an 
appeal  would  lie,  there  was  danger  that  the  royal  courts 
would  be  encumbered  with  a  mass  of  petty  litigation.  To 
meet  this  threatened  evil  the  Statute  6  Ed.  I.  c.  8  was  passed, 
providing  that  no  one  should  have  writs  of  trespass  before 

*As  there  was  no  appeal  for  a  trespass  upon  land,  Sel.  PL  Cor. 
(Seld.  Soc'y),  No.  35,  the  action  of  trespass  quare  clausum  fregit  was 
brought  into  the  royal  courts  directly  from  the  popular  courts. 

8  In  one  case  the  defendant  offered  wager  of  battle  and  the  plaintiff 
agreed,  but  the  court  would  not  allow  it  Y.  B.  32  &  33  Ed.  I.  319. 


424  VII.     TORTS 


justices  unless  he  swore  by  his  faith  that  the  goods  taken 
away  were  worth  40  shillings  at  the  least. 

The  plaintiff's  right  in  trespass  being  the  same  as  the 
appellor's  right  in  the  appeal,  we  may  consider  them  together. 
Bracton  says  the  appeal  is  allowed  "  utrum  res  quae  ita 
subtracta  fuerit,  extiterit  illius  appellantis  propria  vel  al- 
terius,  dum  tamen  de  custodia  sua." l  Britton  and  Fleta 
are  to  the  same  effect.2  The  right  is  defined  with  more  pre- 
cision in  the  "  Mirror  of  Justices  " :  "  In  these  actions 
( appeals )  two  rights  may  be  concerned,  —  the  right  of  pos- 
session, 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  had  been  lent,  bailed,  or  let)  ; 
and  the  right  of  property,  as  is  the  case  where  a  thing  is 
stolen  or  robbed  from  the  possession  of  one  to  whom  the 
property  in  it  belongs."1  The  gist  of  the  plaintiff's  right 
was,  therefore,  possession,  either  as  owner  or  as  bailee. 4  On 
the  death  of  an  owner  in  possession  of  a  charter  the  heir 
was  constructively  in  possession,  and  could  maintain  trespass 
against  one  who  anticipated  him  in  taking  physical  posses- 
sion of  the  charter.  6 

The  bailor  could  not  maintain  an  appeal,  nor  could  he  main- 
tain the  analogous  Anefangsklage  of  the  earlier  Teutonic 
law.6  He  had  given  up  the  possession  to  the  bailee,  retain- 
ing only  a  chose  in  action.  For  the  same  reason  the  bailor 
was  not  allowed,  for  many  years,  to  recover  damages  in  tres- 
pass. As  early  as  1323,  however,  and,  doubtless,  by  the  fic- 
tion that  the  possession  of  a  bailee  at  will  was  the  possession 
of  the  bailor  also,  the  latter  gained  the  right  to  bring  tres- 
pass. 7  In  1375  Cavendish,  J.,  said,  "  He  who  has  property 

1  Bract.  151.    To  the  same  effect,  Bract.  103  b,  146  a. 

21  Nich.  Britt.  56;    Fleta,  Lib.  1,  c.  39. 

8  Book  II.  c.  16  (Seld.  Soc'y). 

4  For  instances  of  appeals  by  bailees  see  Sel.  Pleas  of  the  Crown,  Nos. 
88  and  126,  and  for  a  recognition  of  the  bailee's  right  in  later  times 
Fitz.  Cor.  100  (45  Ed.  III.);  Y.  B.  2  Ed.  IV.  f.  15,  pi.  7;  Keilw.  70, 
pi.  7. 

6Y.  B.  16  Ed.  II.  490;  Y.  B.  1  Ed.  III.  f.  <22,  pi.  11.  The  owner 
could  not  have  the  action  against  a  second  trespasser,  for  the  possession 
Df  the  first  trespasser,  being  adverse  to  owner,  could  not  be  regarded 
as  constructively  the  owner's. 

61   Brunner,  Deutsche  Rechtsgeschichte,  509. 

7Y.  B.  16  Ed.  II.  490;    Y.  B.  6  Ed.  III.  f.  2,  pi.  5. 


64.     AMES:    THE  HISTORY  OF  TROVER    425 

may  have  trespass,  and  he  who  has  custody  another  writ  of 
trespass."  And  Persay  answered:  "It  is  true,  but  he  who 
recovers  first  shall  oust  the  other  of  his  action." l  And  this 
has  been  the  law  ever  since,  where  the  bailment  was  at  the 
will  of  the  bailor.  The  innovation  was  not  extended  to  the 
case  of  the  pledger, 2  or  bailor  for  a  term. 3 

This  same  distinction  between  a  bailment  at  will  and  a 
bailment  for  a  time  is  pointedly  illustrated  by  the  form  of 
indictment  for  stealing  goods  from  the  bailee :  "  If  the 
owner  parts  with  the  right  of  possession  for  a  time,  so  as 
to  be  deprived  of  the  legal  power  to  resume  the  possession 
during  that  time,  and  the  goods  are  stolen  during  that  time, 
they  cannot  be  described  as  the  goods  of  such  owner;  but 
if  the  owner  parts  with  nothing  but  the  actual  possession,  and 
has  a  right  to  resume  possession  when  he  thinks  fit,  the  goods 
may  be  described  either  as  his  goods,  or  his  bailee's.  .  .  ;. 
The  ground  of  the  decision  in  Rex  v.  Belstead  and  Rex  v. 
Brunswick  was  that  the  owner  had  parted  with  the  right  of 
possession  for  the  time,  he  had  nothing  but  a  reversionary 
interest,  and  could  not  have  brought  trespass."  4 

In  like  manner,  it  is  probable  that  for  an  estray  carried 
off  trespass  might  have  been  brought  by  either  the  owner 
or  the  lord  within  the  year  and  a  day.  6  A  servant  could 
not  bring  trespass  unless  he  had  been  intrusted  with  goods 
as  a  bailee  by  or  for  his  master. 6  Nor  could  a  servant  main- 
tain an  appeal  without  his  master.  7 

Trespass  was  an  action  for  damages  only, 8  i.  e.  a  strictly 

»Y.  B.  48  Ed.  III.  f.  20,  pi.  16. 
»Y.  B.  10  Hen.  VI.  f.  25,  pi.  86. 
8  Ward  v.  Macaulay,  4  T.  R.  489. 

•Per  Bayley,  B.,  as  cited  in  2  Russ.  Crimes  (5th  ed.),  245.  The  same 
distinction  is  made  in  1  Hale  P.  C.  513. 

6  Y.  B.  20  Hen.  VII.  f.  1,  pi.  1.    But  in  this  same  case  the  right  of  a 
distrainor  to  have  trespass  was  denied. 

6Y.  B.  2  Edw.  IV.  f.  15,  pi.  7,  per  Littleton;  Heydon's  Case,  13  Rep. 
69;  Bloss  v.  Holman,  Ow.  52,  per  Anderson,  C.  J.;  Goulds.  66,  pi.  10, 
72,  pi.  18,  s.  c. 

7  The  master  could  bring  an  appeal  against  a  thief  and  off er  to  prove 
by  the  body  of  his  servant  who  saw  the  theft,  and  the  servant  would 
accordingly  charge  the  appellee  of  the  same  theft,  and  offer  to  prove 
by  his  body.    1  Rot.  Cur.  Reg.  51;   3  Bract.  Note  Book,  No.  1664.    See 
also  Y.  B.  30  &  31  Ed.  I.  542;   Fitz.  Replev.  32  (19  Ed.  III.). 

8  PI.  Ab.  336,  col.  2,  rot.  69  (14  Ed.  II.)  ;   ibid.  346,  col.  2,  rot.  60  (17 
Ed.  II) ;  Y.  B.  1  Hen.  IV.  f.  4,  pi.  5. 


426  VII.     TORTS 


personal  action.  But  being  a  substitute  for  the  appeal, 
which  gave  the  successful  appellor  the  stolen  res,  the  measure 
of  damages  would  naturally  be  the  value  of  the  stolen  res. 
This  was  the  rule  of  damages  even  though  the  action  was 
brought  by  a  bailee1  or  by  a  trespasser  against  a  second 
trespasser.  The  rule  was  at  one  time  thought  to  be  so  in- 
flexible as  to  deprive  a  bailee  for  a  time  of  the  right  to 
bring  trespass  for  a  wrongful  dispossession  by  his  bailor. 
Hankford,  J.,  said  in  one  case :  "  Plaintiff  shall  not  have  the 
action,  because  then  he  would  recover  damages  to  the  value 
of  the  beasts  from  him  who  owned  them,  and  this  is  not 
right.  But  the  plaintiff  shall  have  an  action  on  the  case. 
But  if  a  stranger  takes  beasts  in  my  custody  I  shall  have 
trespass  against  him  and  recover  their  value,  because  I  am 
chargeable  to  my  bailor  who  has  the  property,  but  here  the 
case  is  different  quod  Hill  and  Culpepper,  JJ.,  conces- 
serunt."*  It  is  needless  to  say  that  this  is  no  longer  law. 
The  plaintiff  has  for  centuries  been  allowed  to  recover  in 
trespass  against  the  bailor  his  actual  loss.3  On  the  same 
principle  it  was  once  ruled  that  a  plaintiff  could  not  have 
trespass  if  his  goods  had  been  returned  to  him ;  "  for,  as 
Fulthorp,  J.,  said,  the  plaintiff  ought  not  to  have  his  goods 
and  recover  value  too,  therefore  he  should  recover  damages 
in  trespass  on  the  case  for  the  detainer."  4  But  Paston,  J., 
said  the  jurors  should  allow  for  the  return  of  the  chattel  in 
assessing  the  damages,  and  his  view  has,  of  course,  pre- 
vailed.5 

The  close  kinship  between  the  appeal  and  trespass  explains 
the  nature  of  the  trespasser's  wrong  to  the  plaintiff.  A  rob- 
ber or  thief  dispossesses  the  owner  with  the  design  of  ex- 
cluding him  from  all  enjoyment  of  the  chattel.  His  act  is 
essentially  the  same  as  that  of  one  who  ejects  another  from 

1Y.  B.  11  Hen.  IV.  f.  23,  pi.  46;  Y.  B.  8  Ed.  IV.  f.  6,  pi.  5;  Hey- 
don's  Case,  13  Rep.  67,  69;  Swire  v.  Leach,  18  C.  B.  N.  s.  479.  There 
are  numerous  cases  in  this  country  to  the  same  effect.  See,  however, 
Claridge  v.  South  Staffordshire  Co.,  [1892],  1  Q.  B.  422.  [Overruled 
by  The  Winkfield  [1902]  P.  42.] 

2Y.  B.  11  Hen.  IV.  f.  23,  pi.  46. 

3Heydon's  Case,  13  Rep.  67,  69;  Brierly  v.  Kendall,  17  Q.  B.  937. 

4Y.  B.  21  Hen.  VI.  f.  15,  pi.  29. 

6Br.  Ab.  Tresp.  221,  130;  Chinnery  v.  Vial,  5  H.  &  N.  288,  295.  See 
also  Y.  B.  21  &  22  Ed.  I.  589.  [Y.  B.  1  Hen.  VI.  7,  pi.  30.] 


64.     AMES:    THE  HISTORY  OF  TROVER    427 

his  land,  i.  e.,  a  disseisin.  Indeed,  in  many  respects  the  re- 
cuperatory  appeal  of  robbery  or  larceny  is  the  analogue  of 
the  assize  of  novel  disseisin.  It  is  not  surprising,  therefore, 
to  find  that  trespass  for  an  asportation  would  not  lie  origi- 
nally except  for  such  a  dispossession  as  in  the  case  of  land 
would  amount  to  a  disseisin.1  If,  for  instance,  a  chattel  was 
taken  as  a  distress,  trespass  could  not  be  maintained.2  Re- 
plevin was  the  sole  remedy.  In  1447  the  Commons  prayed 
for  the  right  to  have  trespass  in  case  of  distress  where  the 
goods  could  not  be  come  at.3 

In  one  respect  trespass  differed  materially  from  the  appeal 
and  also  from  the  assize  of  novel  disseisin.  The  disseisee 
and  the  owner  of  the  chattel  could  recover  the  land  or  the 
chattel  from  the  grantee  of  the  disseisor  or  thief.  But  the 
dispossessed  owner  of  a  chattel  could  not  bring  trespass  for 
the  value  of  the  chattel  against  the  grantee  of  the  trespasser.4 
Even  here,  however,  the  analogy  did  not  really  fail.  Tres- 
pass was  an  action  to  recover  damages  for  a  wrong  done  to 
the  plaintiff  by  taking  the  chattel  from  his  possession.  The 
grantee  of  the  trespasser  had  done  no  such  wrong.  There- 
fore, no  damages  were  recoverable,  and  the  action  failed  al- 
together. Similarly  the  grantee  of  the  disseisor  had  done 
no  wrong  to  the  disseisee,  and  therefore,  while  he  must  sur- 
render the  land,  he  was  not  obliged,  prior  to  the  Statute  of 
Gloucester,  to  pay  damages  to  the  demandant.5  On  the  con- 

1  Trespass  for  the  destruction  of  a  chattel  has  been  allowed  from  very 
early  times.  Y.  B.  1  Ed.  II.  41;  Y.  B.  11  Ed.  II.  344;  Y.  B.  2  Ed.  III. 
f.  2,  pi.  5;  Watson  v.  Smith,  Cro.  El.  723.  There  is  in  the  Registrum 
Brevium  no  writ  of  trespass  for  a  mere  injury  to  a  chattel,  not  amount- 
ing to  its  destruction.  Presumably  it  was  thought  best  that  plaintiffs 
should  seek  redress  for  such  minor  injuries  in  the  popular  courts.  There 
is  an  instance  of  such  an  action  in  1247  in  a  manorial  court  of  the  Abbey 
of  Bee.  Sel.  PI.  Man.  Ct.  (Seld.  Soc'y)  10.  In  later  times  the  remedy 
in  the  King's  Bench  was  by  an  action  on  the  case.  Slater  v.  Swan,  2 
Stra.  872.  See  also  Marlow  v.  Weekes,  Barnes'  Notes,  452.  Finally, 
trespass  was  allowed  without  question  raised.  Dand  v.  Sexton,  3  T.  R. 
37. 

8 PI.  Ab.  265,  col.  2,  rot.  8  (32  Ed.  I.). 

8  5  Rot.  Parl.  139  b.  (The  petition  ibid.  399  a  seems  to  be  the  same 
petition.) 

4Y.  B.  21  Ed.  IV.  f.  74,  pi.  6;  Day  v.  Austin,  Ow.  70;  Wilson  v. 
Barker,  4  B.  &  Ad.  614. 

6  Bract.  164,  172,  175  b;  2  Bract.  Note  Book,  No.  617;  Y.  B.  37  Hen. 
VI.  f.  35,  pi.  22;  Y.  B.  13  Hen.  VII.  f.  15,  pi.  11;  Symons  v.  Symons, 
Hetl.  66. 


428  VII.     TORTS 


trary,  the  demandant  was  in  misericordia  if  he  charged  the 
grantee  with  disseisin.1  By  the  same  reasoning,  just  as  the 
dispossessed  owner  of  a  chattel  could  not  have  trespass 
against  a  second  trespasser,2  so  the  demandant  could  not  re- 
cover damages  from  a  second  disseisor.  3  The  wrong  in  each 
case  was  against  the  first  trespasser  or  disseisor,  who  had 
gained  the  fee  simple  or  property,  although  a  tortious  fee 
simple  or  property. 

The  view  here  suggested,  that  the  defendant's  act  in  tres- 
pass de  bonis  asportatis  was  essentially  the  same  as  that  of  a 
disseisor  in  the  case  of  land,  has  put  the  writer  upon  the 
track  of  what  he  believes  to  be  the  origin  of  the  familiar 
distinction  in  the  law  of  trespass  db  initio  between  the  abuse 
of  an  authority  given  by  law,  and  the  abuse  of  an  authority 
given  by  the  party,  the  abuse  making  one  a  trespasser  db 
initio  in  the  one  case  but  not  in  the  other.  As  we  have  seen, 
replevin,  and  not  trespass,  was  the  proper  action  for  a 
wrongful  distress.  If,  however,  when  the  sheriff  came  to 
replevy  the  goods,  the  landlord,  claiming  the  goods  as  his 
own,  refused  to  give  them  up,  the  replevin  suit  could  not  go 
on ;  the  plaintiff  must  proceed  either  by  appeal  of  felony, 
or  by  trespass. 4  The  defendant  by  this  assumption  of  domin- 
ion over  the  goods  and  repudiation  of  the  plaintiff's  right 
was  guilty  of  a  larceny  and  trespass.  Even  if  the  defendant 
allowed  the  sheriff  to  replevy  the  goods,  he  might  afterwards 
in  court  stop  the  action  by  a  mere  assertion,  without  proof, 
of  ownership.  The  plaintiff  as  before  was  driven  to  his  ap- 
peal or  trespass.  5 

Early  in  the  reign  of  Edward  III.  the  law  was  so  far 

1Q  Bract.  Note  Book,  Nos.  617  and  1191. 

2Y.  B.  21  Ed.  IV.  f.  74,  pi.  6.    See  Essay  No.  67,  post. 

8  Br.  172. 

4  "If  the  taker  or  detainer  admit  the  bailiff  to  view,  and  avow  the 
thing  distrained  to  be  his  property,  so  that  the  plaintiff  has  nothing 
therein,  then  the  jurisdiction  of  the  sheriff  and  bailiff  ceases.  And  if  the 
plaintiff  is  not  a  villein  of  the  deforcer,  let  him  immediately  raise  hue 
and  cry;  and  at  the  first  county  court  let  him  sue  for  his  chattel,  as 
being  robbed  from  him,  by  appeal  of  felony  if  he  thinks  fit  to  do  so." 
1  Nich.  Britt.  138.  In  Y.  B.  21  &  22  Ed.  I.  106,  counsel  being  asked  why 
the  distrainor  did  not  avow  ownership  when  the  sheriff  came,  answered: 
"  If  we  had  avowed  ownership  he  would  have  sued  an  appeal  against 
us." 

8  Y.  B.  32  &  33  Ed.  I.  54. 


64.     AMES:    THE  HISTORY  OF  TROVER    429 

changed  that  the  defendant's  claim  of  ownership  would  not 
defeat  the  replevin  action  unless  made  before  deliverance  of 
the  goods  to  the  sheriff. 1  But  the  old  rule  continued,  if  the 
distrainor  claimed  ownership  before  the  sheriff,  until,  by  the 
new  writ,  de  proprietate  probanda,  the  plaintiff  procured 
a  deliverance  in  spite  of  the  defendant's  claim  and  thus 
was  enabled  to  continue  the  replevin  action  as  in  the  case 
of  a  voluntary  deliverance.  But  the  resort  to  this  writ 
was  optional  with  the  plaintiff.  He  might  still,  if  he  pre- 
ferred, treat  the  recusant  defendant  as  a  trespasser.  In 
Rolle's  Abridgment  we  read :  "  If  he  who  has  distrained  de- 
tains the  beasts  after  amends  tendered  before  impounding, 
he  is  a  trespasser  ab  initio.  45  Ed.  III.  9  b.  Contra,  Co.  8, 
Six  Carpenters,  147."  2 

What  was  true  in  the  case  of  a  distress  was  equally  true 
of  an  estray.  "  If  the  lord  avow  it  to  be  his  own,  the  person 
demanding  it  may  either  bring  an  action  to  recover  his  beast 
as  lost  (adirree)  in  form  of  trespass,  or  an  appeal  of  larceny, 
by  words  of  felony."  3  In  1454  Prisot,  J.,  in  answer  to  coun- 
sel's suggestion  that,  if  he  lost  a  box  of  charters,  he  should 
have  detinue,  said :  "  I  think  not,  for  in  your  case  you  shall 
notify  the  finder  and  demand  their  surrender,  and  if  he  re- 
fuses, you  shall  have  an  action  of  trespass  against  him ;  for 
by  the  finding  he  did  no  wrong,  but  the  tort  began  with  the 
detention  after  notice."4 

On  the  other  hand,  a  bailee  who,  in  repudiation  of  his 
bailor's  rights,  refused  to  give  back  the  chattel  on  request 
was  never  chargeable  as  a  thief  or  trespasser.  5  Unlike  the 


1  The  argument  of  the  defendant,  "  And   although  we  are  come  to 
court  on  your  suit,  we  shall  not  be  in  a  worse  plight  here  than  before 
the  sheriff;    for  you  shall  be  driven  to  your  writ  of  trespass  or  to  your 
appeal,  and  this  writ  shall  abate,"  though  supported  by  the  precedents, 
was  overruled.    Y.  B.  5  Ed.  III.  f.  3,  pi.  11;  see  Essay  No.  67,  post. 

2  2  Roll.  Ab.  561    [G],  7.     The  Year  Book  supports  Rolle. 

81  Nich.  Britt.  68.  See  ibid.  215:  "No  person  can  detain  from  an- 
other birds  or  beasts,  ferae  naturae,  which  have  been  domesticated,  with- 
out being  guilty  of  robbery  or  of  open  trespass  against  our  peace,  if  due 
pursuit  be  made  thereof  within  the  year  and  day,  to  prevent  their  being 
claimed  as  estrays." 

4Y.  B.  33  Hen.  VI.  f.  26,  pi.  12. 

6Y.  B.  16  Hen.  VII.  f.  2,  pi.  7;  1  Ames  &  Smith,  Cases  on  Torts, 
252,  253,  n.  1. 


430  VII.     TORTS 


distrainor  or  finder,  who  took  the  chattel  without  the  consent 
of  the  owner  but  by  virtue  of  a  rule  of  law,  the  bailee  did  not 
acquire  the  possession  by  a  taking,  but  by  the  permission 
and  delivery  of  the  bailor.  Hence  it  was  natural  to  say  that 
a  subsequent  tort  made  one  a  trespasser  ab  initio  if  he  came 
to  the  possession  of  a  chattel  by  act  of  law,  but  not  if  he 
came  to  its  possession  by  act  of  the  party.  The  rule  once 
established  in  regard  to  chattels  was  then  extended  to  tres- 
passes upon  realty  and  to  the  person. 

The  subsequent  history  of  the  doctrine  of  trespass  ab  initio 
is  certainly  curious.  There  seems  to  be  no  indication  in  the 
old  books  that  anything  but  a  refusal  to  give  up  the  chattel 
would  make  the  distrainor  or  finder  a  trespasser.  But  in  the 
case,  in  which  Prisot,  C.  J.,  gave  the  opinion  already  quoted, 
Littleton,  of  counsel,  insisted  that  detinue  and  not  trespass 
was  the  proper  action  against  the  distrainor  or  finder  for 
refusal  to  give  up  the  chattel  on  demand,  but  admitted  that 
trespass  would  lie  if  they  killed  or  used  the  chattel.  l  Little- 
ton's view  did  not  at  once  prevail. 2  But  it  received  the 
sanction  of  Coke,  who  said  that  a  denial,  being  only  a  non- 
feasance,  could  not  make  one  a  trespasser  ab  initio;*  and 
their  opinion  has  ever  since  been  the  established  law.  A  sin- 
gular departure  this  of  Littleton  and  Coke  from  the  ancient 
ways  —  the  doctrine  of  trespass  ab  initio  inapplicable  to 
the  very  cases  in  which  it  had  its  origin ! 


1 "  If  I  refuse  to  give  up  the  distress,  still  he  shall  not  have  trespass 
against  me,  but  detinue,  because  it  was  lawful  at  the  beginning  when 
I  took  the  distress;  but  if  I  kill  them  or  work  them  for  my  own  ac- 
count, he  shall  have  trespass.  So  here,  when  he  found  the  charters  it  was 
lawful,  and  although  he  did  not  give  them  up  on  request,  he  shall  not  have 
trespass,  but  detinue  against  me,  for  no  trespass  is  done  yet;  no  more 
than  where  one  delivers  goods  to  me  to  keep  and  redeliver  to  him,  and 
I  detain  them,  he  shall  never  have  trespass,  but  detinue  against  me  causa 
qua  supra."  Y.  B.  33  Hen.  VI.  f.  26,  pi.  12. 

2  See  Littleton's  own  statement  when  judge  in  Y.  B.  13  Ed.  IV.  f.  6, 
pi.  2.  According  to  Y.  B.  2  Rich.  III.  f.  15,  pi.  39:  "It  was  said  by 
some  that  if  one  loses  his  goods  and  another  finds  them,  the  loser  may 
have  a  writ  of  trespass  if  he  will,  or  a  writ  of  detinue."  In  East  v. 
Newman  (1595),  Golds.  152,  pi.  79,  a  finder  who  refused  to  give  up  the 
goods  to  the  owner  was  held  guilty  of  a  conversion,  Fenner,  J.,  saying: 
"  For  when  I  lose  my  goods,  and  they  come  to  your  hands  by  finding, 
and  you  deny  to  deliver  them  to  me,  I  shall  have  an  action  of  trespass 
against  you,  as  33  Hen.  VI.  is." 

8  Isaac  v.  Clark,  1  Roll.  R.  126. 


64.     AMES:    THE  HISTORY  OF  TROVER    431 


REPLEVIN 

The  gist  of  the  action  of  trespass  de  bonis  asportatis, 
as  we  have  seen,  was  a  taking  from  the  plaintiff's  posses- 
sion under  a  claim  of  dominion.  The  trespasser,  like  a  dis- 
seisor,  acquired  a  tortious  property.  Trespass,  therefore, 
would  not  lie  for  a  wrongful  distress ;  for  the  distrainor  did 
not  claim  nor  acquire  any  property  in  the  distress.  This  is 
shown  by  the  fact  that  he  could  not  maintain  trespass  or 
trover  if  the  distress  was  taken  from  him  on  the  way  to  the 
pound,  or  taken  out  of  the  pound,1  but  must  resort  to  a  writ 
of  rescous  in  the  one  case,  and  a  writ  of  de  parco  fracto  in 
the  other  case.  In  these  writs  the  property  in  the  distress 
was  either  laid  in  the  distrainee,  or  not  laid  in  any  one.2 

But  the  distrainee,  although  debarred  from  bringing  tres- 
pass, was  not  without  remedy  for  a  wrongful  distress.  From 
a  very  early  period  he  could  proceed  against  the  distrainor 
by  the  action,  which  after  a  time  came  to  be  known  as  Re- 
plevin. This  action  was  based  upon  a  taking  of  the  plain- 
tiff's chattels  and  a  detention  of  them  against  gage  and 
pledge.  Hence  Britton  and  Fleta  treat  of  this  action  under 
the  heading  "  De  Prises  de  Avers  "  and  "  De  captione  averi- 
orum,"  while  in  Bracton  and  the  Mirrour  of  Justices  the  cor- 
responding titles  are  "  De  vetito  namio "  and  "  Vee  de 
Naam."  In  the  first  part  of  this  paper  it  was  shown  that 
the  action  of  replevin  was  originally  confined  to  cases  of  ta- 
king by  way  of  distress,3  but  that  in  the  reign  of  Edward  III. 
it  became  a  concurrent  remedy  with  trespass.  But  the 
change  was  for  centuries  one  of  theory  rather  than  of  prac- 

1"The  distrainor  neither  gains  a  general  nor  a  special  property,  nor 
even  the  possession  in  the  cattle  or  things  distrained;  he  cannot  main- 
tain trover  or  trespass.  ...  It  is  not  like  a  pledgee,  for  he  has  a  prop- 
erty for  the  time;  and  so  of  a  bailment  of  goods  to  be  redelivered, 
bailee  shall  have  trespass  against  a  stranger,  because  he  is  chargeable 
over."  Per  Parker,  C.  B.,  Rex  v.  Cotton,  Parker,  113,  121.  See  also  Y. 
B.  21  Hen.  VII.  f.  1,  pi.  1;  Whitly  v.  Roberts,  McClell.  &  Y.  107,  108; 
2  Selw.  N.  P.  (1st  ed.)  1362;  2  Saund.  (6th  ed.)  47  b,  n.  (c). 

2 "  He  shall  not  show  in  the  writ  to  whom  the  property  of  the  cattle 
doth  appertain,  unless  he  choose  to  do  so."  Fitz.  N.  B.  100.  Compare 
Bursen  v.  Martin,  Cro.  Jac.  46,  Yelv.  36,  1  Brownl.  192,  s.  c.,  in  which 
case  a  count  in  trespass  "  Quare  equum  cepit  a  persona  querentis  "  was 
adjudged  bad  for  not  alleging  the  horse  to  be  "  suum." 

3  Supra,  p.  428.     See  also  Essay  No.  67,  post. 


432  VII.     TORTS 


tice.  In  the  four  hundred  years  preceding  this  century  there 
are  stray  dicta,  but,  it  is  believed,  no  reported  decision  that 
replevin  would  lie  against  any  adverse  taker  but  a  distrainor. l 
We  need  not  be  surprised,  therefore,  at  Blackstone's  state- 
ment that  replevin  "  obtains  only  in  one  instance  of  an  un- 
lawful taking,  that  of  a  wrongful  distress."  2  Lord  Redes- 
dale,  in  Shannon  v.  Shannon,3  dissented  from  this  statement, 
saying  that  replevin  would  lie  for  any  wrongful  taking,  and 
his  opinion  has  been  generally  regarded  as  law.  4  But  the 
attempt  to  extend  the  scope  of  the  action  so  as  to  cover  a 
wrongful  detention  without  any  previous  taking  was  unsuc- 
cessful. 5  From  what  has  been  said,  it  is  obvious  that  replevin 
has  played  a  very  small  part  in  the  history  of  trover,  and  we 
may  therefore  pass  without  more  to  the  last  and,  for  the  pur- 
pose of  the  present  essay,  the  most  important  of  our  four 
actions,  the  action  of 

DETINUE 

The  appeal,  trespass,  and  replevin  were  actions  ex  delict o. 
Detinue,  on  the  other  hand,  in  its  original  form,  was  an  ac- 
tion ex  contractu,  in  the  same  sense  that  debt  was  a  con- 
tractual action.  It  was  founded  on  a  bailment ;  that  is,  upon 
a  delivery  of  a  chattel  to  be  redelivered. 6  The  bailment  * 
might  be  at  will  or  for  a  fixed  term,  or  upon  condition,  as  in 
the  case  of  a  pledge.  The  contractual  nature  of  the  action 
is  shown  in  several  ways. 

In  the  first  place  the  count  must  allege  a  bailment,  and 
a  traverse  of  this  allegation  was  an  answer  to  the  action. 7 

»See  Mellor  v.  Leather,  1  E.  &  B.  619.  Replevin  against  one,  who 
took  as  finder,  was  allowed  in  Taylor  v.  James,  Godb.  150,  pi.  195. 

2  3  Bl.  Com.  146. 

31  Sch.  &  Lef.  327. 

4  George  v.  Chambers,  11  M.  &  W.  149. 

6Mennie  &  Blake,  6  E.  &  B.  847.  In  many  jurisdictions  in  this 
country,  however,  with  or  without  the  aid  of  a  statute,  replevin  became 
concurrent  with  detinue. 

6  A  buyer  could  also  bring  detinue  against  the  seller  for  the  chattel 
sold  but  not  delivered.  But  the  position  of  the  seller  after  the  bargain 
was  essentially  that  of  a  bailee.  For  an  early  case  of  detinue  by  a 
buyer,  see  Sel.  PI.  Man.  Cts.,  2  Seld.  Soc'y  (1275),  138.  The  count 
for  such  a  case  is  given  in  Novae  Narrationes,  f.  68.  See  also  Y.  B.  21 
Ed.  III.  f.  12,  pi.  2. 

7Y.  B.  3  Ed.  II.  78;  Y.  B.  6  Ed.  II.  192.  Compare  Y.  B.  20  &  21 
Ed.  I.  193.  After  the  scope  of  detinue  was  enlarged,  a  traverse  of 


64-     AMES:    THE  HISTORY  OF  TROVER    433 

Again,  detinue  could  not  be  maintained  against  a  widow  in 
possession  of  a  chattel  bailed  to  her  during  her  marriage, 
because  "  ele  ne  se  peut  obliger."  1  Nor,  for  the  same  rea- 
son, would  the  action  lie  against  husband  and  wife  on  a  bail- 
ment to  them  both.2  Thirdly,  on  a  bailment  to  two  or  more 
persons,  all  must  be  joined  as  defendants,  for  all  were  par- 
ties to  the  contract.3  On  the  same  principle,  all  who  joined 
in  bailing  a  chattel  must  be  joined  as  plaintiffs  in  detinue.4 
On  the  other  hand,  on  the  bailment  by  one  person  of  a  thing 
belonging  to  several,  the  sole  bailor  was  the  proper  plaintiff.5 
For  it  was  not  necessary  in  detinue  upon  a  bailment,  as  it 
was  in  replevin  and  trespass,  to  allege  that  the  chattels  de- 
tained were  the  "  goods  of  the  plaintiff."  6  Fourthly,  the 
gist  of  the  action  of  detinue  was  a  refusal  to  deliver  up  the 
chattel  on  the  plaintiff's  request;  that  is,  a  breach  of  con- 
tract. Inability  to  redeliver  was  indeed  urged  in  one  case 
as  an  objection  to  the  action,  although  the  inability  was  due 
to  the  active  misconduct  of  the  defendant.  "  Brown.  If  you 
bail  to  me  a  thing  which  is  wastable,  as  a  tun  of  wine,  and  I 
perchance  drink  it  up  with  other  good  fellows,  you  cannot 
have  detinue,  inasmuch  as  the  wine  is  no  longer  in  rerum 
natura,  but  you  may  have  account  before  auditors,  and  the 
value  shall  be  found."  This,  Newton,  C.  J.,  denied,  saying 
detinue  was  the  proper  remedy.7  It  may  be  urged  that  the 
detinue  in  this  case  was  founded  upon  a  tort.  But  in  truth 
the  gist  of  the  action  was  the  refusal  to  deliver  on  request. 
This  is  brought  out  clearly  by  the  case  of  Wilkinson  v. 
Verity.8  The  defendant,  a  bailee,  sold  the  chattel  intrusted 

the  bailment  became  an  immaterial  traverse.  Gledstane  v.  Hewitt,  1 
Cr.  &  J.  565;  Whitehead  v.  Harrison,  6  Q.  B.  423,  in  which  case  the 
court  pointed  out  a  serious  objection  to  the  modern  rule. 

*Y.  B.  20  &  21  Ed.  I.  189. 

•Y.  B.  38  Ed.  III.  f.  1,  pi.  1;  1  Chitty  PI.  (7th  ed.)  104,  138. 

8Y.  B.  7  Hen.  IV.  f.  6,  pi.  37. 

4Atwood  v.  Ernest,  13  C.  B.  881. 

BY.  B.  8  Ed.  II.  270;  Y.  B.  49  Ed.  III.  f.  13,  pi.  6,  because  "they 
(the  owners)  were  not  parties  to  the  contract  and  delivery;"  Bellewe, 
Det.  Charters,  13  R.  II. 

•Whitehead  v.  Harrison,  6  Q.  B.  423,  citing  many  precedents. 

7  Y.  B.  20  Hen.  VI.  f.  16,  pi.  2.  To  the  same  effect,  7  Ed.  III.,  Stath. 
Abr.,  Detinue,  pi.  9;  Y.  B.  17  Ed.  III.  f.  45,  pi.  1;  20  Ed.  III.,  Fitz. 
Abr.  Office  del  Court,  22. 

8L.  R.  6  C.  P.  206;  Ganley  v.  Troy  Bank,  98  N.  Y.  487,  accord. 


434  VII.     TORTS 


to  his  care.  Eleven  years  after  this  conversion  the  bailor 
demanded  the  redelivery  of  the  chattel,  and  upon  the  bailee's 
refusal  obtained  judgment  against  him  on  the  breach  of  the 
contract,  although  the  claim  based  upon  the  tort  was  barred 
by  the  Statute  of  Limitations.  The  breach  of  contract  is  ob- 
vious where  the  bailee  was  charged  in  detinue  for  a  pure  non- 
feasance,  as  where  the  goods  were  lost. l  Fifthly,  bailees  were 
chargeable  in  assumpsit,  after  that  action  had  become  the 
common  remedy  for  the  breach  of  parol  contracts.2 

Finally,  we  find,  as  the  most  striking  illustration  of  the 
contractual  nature  of  the  bailment,  the  rule  of  the  old  Teu- 
tonic law  that  a  bailor  could  not  maintain  detinue  against 
any  one  but  the  bailee.  If  the  bailee  bailed  or  sold  the  goods, 
or  lost  possession  of  them  against  his  will,  the  sub-bailee,  the 
purchaser,  and  even  the  thief,  were  secure  from  attack  by  the 
bailor.  This  doctrine  maintained  itself  with  great  persistency 
in  Germany  and  France.3  In  England  the  ancient  tradition 
was  recognized  in  the  fourteenth  century.  In  1351  Thorpe 
(a  judge  three  years  later)  said:  "  I  cannot  recover  against 
any  one  except  him  to  whom  the  charter  was  bailed."'  Bel- 
knap  (afterwards  Chief  Justice)  said  in  1370:  "  In  the  life- 
time of  the  bailee  detinue  is  not  given  against  any  one  except 
the  bailee,  for  he  is  chargeable  for  life."1  Whether  it  was 
ever  the  law  of  England  that  the  bailor  was  without  remedy, 
if  the  bailee  died  in  possession  of  the  chattel,  must  be  left 
an  open  question.  6  In  a  case  of  the  year  1323  it  was  gener- 

1  Reeve  v.  Palmer,  5  C.  B.  K.  s.  84.  The  early  authorities  are  cited 
by  Professor  Beale  in  Essay  No.  54,  ante. 

2Wheatley  v.  Lowe,  Palm.  28;  Cro.  Jac.  668,  s.  c.  See  Essay  No. 
59,  ante. 

8Heusler,  Die  Gewere,  487;  Carlin,  Niemand  kann  auf  einen  Anderen 
mehr  Recht  iibertragen  als  er  selbst  hat,  42,  48;  Jobbe-Duval,  La 
Revendication  des  Meubles,  80,  165. 

4Y.  B.  24  Ed.  III.  f.  41,  A,  pi.  22. 

5Y.  B.  43  Ed.  III.  f.  29,  pi.  11. 

6  In  Sel.  Cas.  in  Ch.,  10  Seld  Soc'y  No.  116  (1413-1417),  a  plaintiff, 
before  going  to  Jerusalem,  had  bailed  a  coffer  containing  title  deeds  and 
money  to  his  mother.  The  mother  died  during  his  absence,  and  her 
husband,  the  plaintiff's  stepfather,  refused  to  give  up  the  coffer  to  the 
son  on  his  return.  The  plaintiff  brought  his  bill  in  chancery  alleging 
that  "because  he  [stepfather]  was  not  privy  or  party  to  the  delivery 
of  the  coffer  to  the  wife  no  action  is  maintainable  at  common  law, 
to  the  grievous  damage,"  etc.,  "if  he  be  not  succoured  by  your  most 
gracious  lordship  where  the  common  law  fails  him  in  this  case."  See 
also  Y.  B.  20  &  21  Ed.  I.  189. 


64-     AMES:    THE  HISTORY  OF  TROVER    435 

ally  agreed  that  the  executor  of  a  bailee  was  liable  in  detinue. l 
But  the  plaintiff  in  that  case,  who  alleged  a  bailment  of  a 
deed  to  A,  and  that  the  deed  came  to  the  hands  of  the  defend- 
ant after  A's  death,  and  that  defendant  refused  to  deliver 
on  request,  failed  because  he  <£d  not  make  the  defendant 
privy  to  A  as  heir  or  executor.  Afterwards,  however,  the 
law  changed,  and  it  was  good  form  to  count  of  a  bailment  to 
A,  and  a  general  devenerunt  ad  manus  of  the  defendant  after 
A's  death.2  Belknap's  statement  also  ceased  to  be  law,  and 
detinue  was  allowed  in  the  lifetime  of  the  bailee  against  any 
one  in  possession  of  the  chattel. 3  In  other  words,  the  trans- 
formation in  the  manner  just  described,  of  the  bailor's  re- 
stricted right  against  the  bailee  alone,  to  an  unrestricted 
right  against  any  possessor  of  the  chattel  bailed,  virtually 
converted  his  right  ex  contractu  into  a  right  in  rem. 

It  is  interesting  to  compare  this  transformation  with  the 
extension  at  a  later  period  of  the  right  of  the  cestuy  que 
trust.  In  the  early  days  of  uses  the  cestuy  que  use  could 
not  enforce  the  use  against  any  one  but  the  original  feoffee 
to  uses.  In  1482  Hussey,  C.  J.,  said:  "  When  I  first  came  to 
court,  thirty  years  ago,  it  was  agreed  in  a  case  by  all  the 
court  that  if  a  man  had  enfeoffed  another  in  trust,  if  the 
latter  died  seised  so  that  his  heir  was  in  by  descent,  that  then 
no  subpoena  would  lie."  4  Similarly,  the  husband  or  wife  of 
the  feoffee  to  uses  were  not  bound  by  the  use.  5  Nor  was 
there  at  first  any  remedy  against  the  grantee  of  the  feoffee 
to  uses  although  he  was  a  volunteer,  or  took  with  notice  of  the 
use,  because  as  Frowicke,  C.  J.,  said,  "  The  confidence  which 

»Y.  B.  16  Ed.  II.  490. 

8Y.  B.  29  Ed.  III.  38,  B,  per  Wilby,  J,;  Y.  B.  9  Hen.  V.  f.  14,  pi. 
22;  Y.  B.  9  Hen.  VI.  f.  58,  pi.  4.  Paston,  J.  "The  count  is  good 
enough  notwithstanding  he  does  not  show  how  the  deed  came  to  defend- 
ant, since  he  has  shown  a  bailment  to  B  (original  bailee)  at  one  time." 
Martin,  J.  "  He  ought  to  show  how  it  came  to  defendant."  Paston,  J. 
"  No,  for  it  may  be  defendant  found  the  deed,  and  if  what  you  say  is 
law,  twenty  records  in  this  court  will  be  reversed." 

8Y.  B.  11  Hen.  IV.  f.  46,  B,  pi.  20;  Y.  B.  12  Ed.  IV.  f.  11,  pi.  2, 
and  f.  14,  pi.  14;  Y.  B.  10  Hen.  VII.  f.  7,  pi.  14. 

*Y.  B.  22  Ed.  IV.  f.  6,  pi.  22.  In  Keilw.  42,  pi.  7,  Vavasour,  J., 
said,  in  1501,  that  the  subpoena  was  never  allowed  against  the  heir 
until  the  time  of  Henry  VI.,  and  that  the  law  on  this  point  was 
changed  by  Fortescue,  C.  J. 

8  Ames,  Cases  on  Trusts  (2d  ed.),  374,  n. 


436  F/J.     TORTS 


the  feoffor  put  in  the  person  of  his  feoffee  cannot  descend 
to  his  heir  nor  pass  to  the  feoffee  of  the  feoffee,  but  the  latter 
is  feoffee  to  his  own  use,  as  the  law  was  taken  until  the  time 
of  Henry  IV.  [VI.?]."  l  One  is  struck  by  the  resemblance 
between  this  remark  of  the  English  judge  and  the  German 
proverb  about  bailors :  "  Where  one  has  put  his  trust,  there 
must  he  seek  it  again." 2  The  limitation  of  the  bailor  at 
common  law,  and  the  cestui  que  trust  in  equity,  to  an  action 
or  suit  against  the  original  bailee  or  trustee,  are  but  two 
illustrations  of  one  characteristic  of  primitive  law,  the  inabil- 
ity to  create  an  obligation  without  the  actual  agreement  of 
the  party  to  be  charged.3 

A  trust,  as  every  one  knows,  has  been  enforceable  for  cen- 
turies against  any  holder  of  the  title  except  a  purchaser  for 
value  without  notice.  But  this  exception  shows  that  the 
cestui  que  trust,  unlike  the  bailor,  has  not  acquired  a  right 
in  rem.  This  distinction  is,  of  course,  due  to  the  fundamental 
difference  between  common-law  and  equity  procedure.  The 
common  law  acts  in  rem.  The  judgment  in  detinue  is,  accord- 
ingly, that  the  plaintiff  recover  the  chattel,  or  its  value. 
Conceivably  the  common-law  judges  might  have  refused  to 
allow  the  bailor  to  recover  in  detinue  against  a  bona  fide  pur- 
chaser, as  they  did  refuse  it  against  a  purchaser  in  market 
overt.  But  this  would  have  involved  a  weighing  of  ethical 
considerations  altogether  foreign  to  the  medieval  mode  of 
thought.  Practically  there  was  no  middle  ground  between 
restricting  the  bailor  to  an  action  against  his  bailee,  and 
giving  him  a  right  against  any  possessor.  Equity,  on  the 
other  hand,  acts  only  in  personam,  never  decreeing  that  a 
plaintiff  recover  a  res,  but  that  the  defendant  surrender 
what  in  justice  he  cannot  keep.  A  decree  against  a  mala 
fide  purchaser  or  a  volunteer  is  obviously  just;  but  a  decree 

1Anon.,  Keilw.  46,  pi.  7.  See  also  Ames,  Cases  on  Trusts  (3d  ed.), 
282-285. 

2  Wo  man   seinen    Glauben   gelassen   hat,   da  muss   man   ihn   wieder 
suchen. 

3  This    same    inability   explains    the    late    development    of    assumpsit 
upon  promises  implied  in  fact,  and  of  gt«m-contracts.     The  necessity 
of  the  invention  of  the  writ  quare  ejecit  infra  terminum  as  a  remedy 
for  a  termor,  who  had  been  ousted  by  his  landlord's  vendee,  was  due 
to  this  same  primitive  conception,  for  the  vendee  was  not  chargeable  by 
the  landlord's  contract. 


64.     AMES:    THE  HISTORY  OF  TROVER    437 

against  an  innocent  purchaser,  who  has  acquired  the  legal 
title  to  the  res,  would  be  as  obviously  unjust. 

In  all  the  cases  of  detinue  thus  far  considered  the  action 
was  brought  by  a  bailor,  either  against  the  bailee  or  some 
subsequent  possessor.  We  have  now  to  consider  the  extension 
of  detinue  to  cases  where  there  was  no  bailment.  Legal  pro- 
ceedings for  the  recovery  of  chattels  lost  were  taken,  in  the 
earliest  reported  cases,  in  the  popular  courts.  The  common 
case  was  doubtless  that  of  an  animal  taken  as  an  estray  by 
the  lord  of  a  franchise.  If  the  lord  made  due  proclamation 
of  the  estray,  and  no  one  claimed  it  for  a  year  and  a  day, 
the  lord  was  entitled  to  it.  But  within  the  year  and  day  the 
loser  might  claim  it,  and  if  he  produced  a  sufficient  secta, 
or  body  of  witnesses,  to  swear  to  his  ownership  or  loss  of  the 
animal,  it  was  customary  for  the  lord  to  give  it  up,  upon 
the  owner's  paying  him  for  its  keep,  and  giving  pledges  to 
restore  it  in  case  of  any  claim  for  the  same  animal  being 
made  within  the  year  and  day.1  There  is  an  interesting 
case  of  the  year  1234,  in  which  after  the  estray  had  been 
delivered  to  the  claimant  upon  his  making  proof  and  giving 
pledges,  another  claimant  appeared.  It  is  to  be  inferred 
from  the  report  that  the  second  claimant  finally  won,  as  he 
produced  the  better  secta.2  If  the  lord,  or  other  person  in 
whose  hands  the  estray  or  other  lost  chattel  was  found,  re- 
fused to  give  it  up  to  the  claimant,  the  latter  might  count 
against  the  possessor  for  his  res  adirata,  or  chose  adirree, 
that  is,  his  chattel  gone  from  his  hand  without  his  consent ; 3 
or  he  might  bring  an  appeal  of  larceny.4  According  to 

^el.  PI.  Man.  Cts.,  2  Seld.  Soc'y  (1281),  31.  "Maud,  widow  of 
Reginald  of  Challon,  has  sufficiently  proved  that  a  certain  sheep  (an 
estray)  valued  at  8d.  is  hers,  and  binds  herself  to  restore  it  or  its  price 
in  case  it  shall  be  demanded  from  her  within  year  and  day;  pledges 
John  Ironmonger  and  John  Roberd;  and  she  gives  the  lord  3d.  for 
his  custody  of  it."  There  is  a  similar  case  in  the  Court  Baron,  4  Seld. 
Soc'y  (1324),  144. 

2  3  Bract.  Note  Book,  No.  1115. 

8  Adiratus  is  doubtless  a  corruption  of  adextratus,  i.  e.,  out  of  hand. 
In  the  precedents  of  trover  and  detinue  sur  trover  in  Coke's  Entries, 
the  plaintiff  alleged  that  he  casually  lost  the  chattel  "extra  manus  et 
possessionem."  Co.  Ent.  38,  pi.  31;  40,  pi.  32;  169,  d,  pi.  2. 

4  "  And  if  the  lord  avow  it  to  be  his  own,  the  person  demanding  it 
may  either  bring  an  action  to  recover  his  beast  as  lost  (adirrte),  in 
form  of  trespass,  or  an  appeal  of  larceny  by  words  of  felony."  Brittoiv 
f.  27.  See  also  Britton,  f.  46. 


438  VII.     TORTS 


Bracton,  the  pursuer  of  a  thief  was  allowed  "  rem  suam 
petere  ut  adiratam  per  testimonium  proborum  hominum  et 
si  consequi  rem  suam  quamvis  furatam."  l  This  statement 
of  Bracton,  taken  by  itself,  would  warrant  the  belief  that 
the  successful  plaintiff  in  the  action  for  a  chose  adirree  had 
judgment  for  the  recovery  of  the  chattel.  This  may  have 
been  the  fact;  but  it  is  difficult  to  believe  that  such  a  judg- 
ment was  given  in  the  popular  court.  No  intimation  of 
such  a  judgment  is  to  be  found  in  any  of  the  earlier  cases. 
It  seems  probable  that  Bracton  meant  simply  that  the  plain- 
tiff might  formally  demand  his  chattel  in  court  as  adiratum, 
and,  by  the  defendant's  compliance  with  the  demand,  recover 
it.  For,  in  the  sentence  immediately  following,  Bracton 
adds  that  if  the  defendant  will  not  comply  with  his  demand, 
—  "  si  ...  in  hoc  ei  non  obtemperaverit,"  —  the  plaintiff 
may  proceed  further  and  charge  him  as  a  thief  by  an  appeal 
of  larceny.  This  change  from  the  one  action  to  the  other 
is  illustrated  by  a  case  of  the  year  1233.  2  The  count  for 
a  chose  adirree  is  described  in  an  early  Year  Book.3  The 
latest  recognition  of  this  action  that  has  been  found  is  a 
precedent  in  Novae  Narrationes,  f.  65,  which  is  sufficiently 
interesting  to  be  reproduced  here  in  its  original  form. 

De  Chyval  Dedit 

Ceo  vous  monstre  W.  &c.  que  lou  il  avoit  un  son  chival  de 
tiel  colour  price  de  taunt,  tiel  jour  an  et  lieu,  la  luy  fyst  eel 
cheval  dedire  [adirre],  et  il  alia  querant  dun  lieu  en  autre,  et 
luy  fist  demander  en  monstre  fayre  &  marche  et  de  son  chival 

1  Bract.  150  b.     See  also  Fleta,  55,  63. 

2  2    Bract.    Note   Book,   No.   824.      The   plaintiff    "dixit   quod    idem 
Willelmus  in  pace  dei  et  Dom.  Regis   et  ballivorum  in  juste  detinuit 
ei  tres  porcos  qui  ei   fuerunt  addirati,  et  inde  producit   sectam   quod 
porci   sui   fuerunt   et   ei   porcellati   et   postea    addirati."     William    dis- 
puted the  claim,  and  the  plaintiff  then  charged  William  as  the  thief 
"  et  parata   fuit  hoc  disracionare  versus  eum,   sicut  femina  versus  la- 
tronem,  quod  legale  catallum  suum  nequiter  ei  contradixit." 

3  20  Ed.  I.  466.     "  Note  that  where  a  thing  belonging  to  a  man  is 
lost  (endire),  he  may  count  that  he   (the  finder)   tortiously  detains  it, 
etc.,  and  tortiously  for  this  that  whereas  he  lost    (ly  fut  endire)    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  (his  own  hand  the  twelfth)  that  he  lost  the  thing." 


64-     AMES:    THE  HISTORY  OF  TROVER    439 

ne  poet  este  acerte,  ne  poet  oier  tanquam  a  tiel  jour  quil  vient 
et  trova  son  cheval  en  la  garde  W.  de  C.  que  illonques  est  s.  en 
la  gard  mesme  cesty  W.  en  mesme  la  ville,  et  luy  dit  coment 
son  chival  fuit  luy  aderere  et  sur  ceo  amena  suffisantz  proves 
de  prover  le  dit  chival  estre  son,  devant  les  baylliefz  et  les 
gentes  de  la  ville,  &  luy  pria  qui  luy  fist  deliveraunce,  et  il  ceo 
faire  ne  voyleit  ne  uncore  voet,  a  tort  et  as  damages  le  dit  W.. 
de  XX.  s.  Et  sil  voet  dedire  &c.  [vous  avez  cy  &c.  que  ent  ad: 
suit  bon]. 

This  count  points  rather  to  damages  than  to  the  recovery 
of  the  horse.  It  is  worthy  of  note,  also,  that  its  place  in  the 
"  Novae  Narrationes  "  is  not  with  the  precedents  in  detinue, 
but  with  those  in  trespass.  There  seems  to  be  no  evidence 
of  an  action  of  chose  adirree  in  the  royal  courts.  Nor  has 
any  instance  been  found  in  these  courts  of  detinue  by  a  loser 
against  a  finder  prior  to  1371.1  In  that  year  a  plaintiff 
brought  detinue  for  an  ass,  alleging  that  it  had  strayed 
from  him  to  the  seignory  of  the  defendant,  and  that  he  one 
month  afterwards  offered  the  defendant  reasonable  satis- 
faction (for  the  keep).  Issue  was  joined  upon  the  reason- 
ableness of  the  tender.2  Detinue  by  a  loser  against  a  finder 
would  probably  have  come  into  use  much  earlier  but  for  the 
fact,  pointed  out  in  the  first  part  of  this  paper,  that  the 
loser  might  bring  trespass  against  a  finder  who  refused  to 
restore  the  chattel  on  request.  Indeed,  in  1455,3  where  a 
bailiff  alleged  simply  his  possession,  and  that  the  charters 
came  to  the  defendant  by  finding,  Prisot,  C.  J.,  while  admit- 
ting that  a  bailor  might  have  detinue  against  any  possessor 
of  goods  lost  by  the  bailee,  expressed  the  opinion  that  where 
there  was  no  bailment  the  loser  should  not  bring  detinue, 
but  trespass,  if,  on  demand,  the  finder  refused  to  give  up  the 
goods.  Littleton  insisted  that  detinue  would  lie,  and  his 
view  afterwards  prevailed.  It  was  in  this  case  that  Little- 
ton, in  an  aside,  said :  "  This  declaration  per  inventionem 

*In  Y.  B.  Q  Ed.  III.  f.  2,  pi.  5,  there  is  this  dictum  by  Scrope,  J.: 
"If  you  had  found  a  charter  in  the  way,  I  should  have  a  recovery 
against  you  by  prcecipe  quod  reddat" 

2Y.  B.  44  Ed.  III.  f.  14,  pi.  30.  See  also  13  Rich.  II.,  Bellewe,  Det. 
of  Chart.  Detinue  against  husband  and  wife.  Count  that  they  found 
the  charters. 

8Y.  B.  33  Hen.  VI.  f.  26,  pi.  12. 


440  VII.     TORTS 


is  a  new-found  Halliday;  for  the  ancient  declaration  and 
entry  has  always  been  that  the  charters  ad  manus  et  pos- 
sesslonem  devenerunt  generally  without  showing  how."  Lit- 
tleton was  quite  right  on  this  point.1  But  the  new  fashion 
persisted,  and  detinue  sur  trover  came  to  be  the  common 
mode  of  declaring  wherever  the  plaintiff  did  not  found  the 
action  upon  a  bailment  to  the  defendant.  In  the  first  edition 
of  "Liber  Intrationum "  (1510),  f.  22,  there  is  a  count 
alleging  that  the  plaintiff  was  possessed  of  a  box  of  charters ; 
that  he  casually  lost  it,  so  that  it  came  to  the  hands  and 
possession  of  the  defendant  by  finding,  and  that  he  refused 
to  give  it  up  on  request.2  The  close  resemblance  between  this 
precedent  and  the  earlier  one  from  "  Novae  Narrationes  " 
will  have  occurred  to  the  learned  reader.  But  there  is  one 
difference.  In  the  count  for  a  chose  adirree,  it  is  the  plain- 
tiff who  finds  the  chattel  in  the  defendant's  possession.  In 
detinue  sur  trover  the  finding  alleged  is  by  the  defendant. 
And  until  we  have  further  evidence  that  the  action  in  the 
popular  courts  was  for  the  recovery  of  the  chattel  and  not 
for  damages  only,  it  seems  reasonable  to  believe  that  detinue 
sur  trover  in  the  king's  courts  was  not  borrowed  from  the 
action  of  chose  adirree,  but  was  developed  independently  out 
of  detinue  upon  a  general  devenerunt  ad  manus.  But  what- 
ever question  there  may  be  on  this  point,  no  one  can  doubt 
that  detinue  sur  trover  was  the  parent  of  the  modern  action 
of  trover. 

Add  to  the  precedent  in  the  "  Liber  Intrationum "  the 
single  averment  that  the  defendant  converted  the  chattel  to 
his  own  use,  and  we  have  the  count  in  trover. 

It  remains  to  consider  how  the  action  of  trover  at  first 
became  concurrent  with  detinue,  and  then  effectually  sup- 
planted it  until  its  revival  within  the  last  fifty  years. 

1  Littleton's  remark  seems  to  have  been  misapprehended  in  2  Pollock 
&  Maitland,  174.  The  innovation  was  not  in  allowing  detinue  where 
there  was  no  bailment,  but  in  describing  the  defendant  as  a  finder.  The 
old  practice  was  to  allege  simply  that  the  goods  came  to  the  hands 
of  the  defendant,  as  in  Y.  B.  3  Hen.  VI.  f.  19,  pi.  31.  See  also  Isaac 
v.  Clark,  1  Bulst.  128,  130.  In  1655  it  was  objected  to  a  count  in  trover 
and  conversion  that  no  finding  was  alleged,  but  only  a  devenerunt  ad 
manus.  The  objection  was  overruled.  Hudson  v.  Hudson,  Latch,  214, 

9  A  similar  count  in  Lib.  Int.  f.  71. 


64.     AMES:    THE  HISTORY  OF  TROVER    441 

There  were  certain  instances  in  which  detinue,  in  its  en- 
larged scope,  and  trespass,  did  not  adequately  protect 
owners  of  chattels.  Neither  of  these  actions  would  serve,  for 
instance,  if  a  bailee  or  other  possessor  misused  the  goods, 
whereby  their  value  was  diminished,  but  nevertheless  delivered 
them  to  the  owner  on  request.  The  owner's  only  remedy  in 
such  a  case  was  a  special  action  on  the  case.  We  find  such 
an  action  in  the  reports  as  early  as  1461,1  the  propriety  of 
the  action  being  taken  for  granted  by  both  counsel  and 
court. 

If,  again,  after  impairing  the  value  of  the  goods,  the 
bailee  or  other  possessor  refused  to  deliver  them  to  the  owner 
on  request,  detinue  would  of  course  lie.  But  the  judgment 
being  that  the  plaintiff  recover  his  goods  or  their  value  with 
damages  for  the  detention,2  if  the  defendant  saw  fit  to  re- 
store the  goods  under  the  judgment,  the  plaintiff  would  still 
have  to  resort  to  a  separate  action  on  the  case  in  order  to 
recover  damages  for  the  injury  to  the  goods.  This  was 
pointed  out  by  Catesby  in  an  early  case,3  and  later  by  Ser- 
jeant Moore.4  To  prevent  this  multiplicity  of  actions,  the 
plaintiff  was  allowed  to  bring  an  action  on  the  case  in  the 
first  instance,  and  recover  his  full  damages  in  one  action. 

If  a  bailee  destroyed  the  chattel  bailed,  the  bailor,  as  we 
have  seen,  could  recover  its  value  in  detinue.  But  if  a  pos- 
sessor other  than  the  owner's  bailee  destroyed  the  chattel, 
if,  for  instance,  the  tun  of  wine  which  Brown  and  his  "  bans 
compagnons  "  drank  up,  in  the  case  already  mentioned,  had 
come  to  the  hands  of  Brown  in  some  other  way  than  through 
bailment  by  the  owner,  it  is  at  least  doubtful  if  the  owner 
could  have  recovered  the  value  of  the  wine  in  detinue.  Brown, 
in  this  case,  never  agreed  with  the  owner  to  give  up  the  wine 
on  request.  The  plaintiff  in  detinue  must  therefore  show  a 

1 Y.  B.  33  Hen.  VI.  f.  44,  pi.  7.  See  also  Y.  B.  9  Hen.  VI.  f.  60,  pi. 
10;  Y.  B.  2  Ed.  IV.  f.  5,  pi.  9,  per  Littleton;  Y.  B.  12  Ed.  IV.  f.  13,  pi. 
9;  Rook  v.  Denny,  2  Leon.  192,  pi.  242. 

2  See  Williams  v.  Archer,  5  C.  B.  318,  for  the  form  of  judgment  in 
detinue. 

3Y.  B.  18  Ed.  IV.  f.  23,  pi.  5:  "If  I  deliver  my  clothes  to  you  to 
keep  for  me,  and  you  wear  them  so  that  they  are  injured,  I  shall  have 
an  action  of  detinue,  .  .  .  and  afterwards  an  action  on  the  case  for  the 
loss  sustained  by  your  using  the  clothes." 

4  (1510)   Keilw.  160,  pi.  2. 


442  VII.     TORTS 


detention,  which  would  be  impossible  of  goods  already  des- 
troyed. This  was  the  view  of  Brian,  C.  J.  This  conservative 
judge  went  so  far,  indeed,  as  to  deny  the  owner  an  action 
on  the  case  under  such  circumstances,  but  on  this  latter 
point  the  other  justices  were  "  in  contraria  opinione." 

If  case  would  lie  against  any  possessor  for  misusing  goods 
of  another,  and  also  against  a  possessor  other  than  a  bailee 
for  the  destruction  of  the  goods,  it  was  inevitable  that  it 
should  finally  be  allowed  against  a  bailee  who  had  destroyed 
the  goods.  Such  an  action  was  brought  against  the  bailee 
in  a  case  of  the  year  1479, 2  which  is  noteworthy  as  being 
the  earliest  reported  case  in  which  a  defendant  was  charged 
with  "  converting  to  his  own  use "  the  plaintiff's  goods. 3 
Choke,  J.,  was  in  favor  of  the  action.  Brian,  C.  J.,  was 
against  it.  Choke's  opinion  prevailed.4 

Later,  a  wrongful  sale  was  treated  as  a  conversion.  In 
1510  the  judges  said  an  action  on  the  case  would  lie  against 
a  bailee  who  sold  the  goods  because  "  he  had  misdemeaned 
himself."  5  In  a  word,  trover  became  concurrent  with  de- 
tinue in  all  cases  of  misfeasance. 

Trover  also  became  concurrent  with  trespass.  In  1601 
the  Court  of  King's  Bench  decided  that  trover  would  lie  for 
a  taking. 6  In  the  same  year  the  Court  of  Common  Pleas 
was  equally  divided  on  the  question,  but  in  1604,  in  the  same 
case,  it  was  decided,  one  judge  dissenting,  that  the  plaintiff 
might  have  his  election  to  bring  trespass  or  case.7  The 

1Y.  B.  12  Ed.  IV.  f.  13,  pi.  9.  See  also  Y.  B.  9  Ed.  IV.  f.  53,  pi. 
15,  per  Billing,  J. 

2Y.  B.  18  Ed.  IV.  f.  23,  pi.  5. 

8  The  allegation  of  conversion  occurs  again  in  Y.  B.  20  Hen.  VII. 
f.  4,  pi.  13;  Y.  B.  20  Hen.  VII.  f.  8,  pi.  18;  Mounteagle  v.  Worcester 
(1556),  Dy.  121  a.  The  earliest  precedents  using  the  words  "converted 
to  his  own  use"  are  in  RastalPs  Entries,  4,  d,  pi.  1  (1547).  Ibid.  8, 
pi.  1.  In  the  reign  of  Elizabeth  it  was  common  form  to  count  upon 
a  finding  and  conversion. 

*Y.  B.  18  Ed.  IV.  f.  23,  pi.  5;  Y.  B.  27  Hen.  VIII.  f.  25,  pi.  3.  "It 
is  my  election  to  bring  the  one  action  or  the  other,  ».  e.,  detinue  or 
action  on  my  case  at  my  pleasure." 

5Keilw.  160,  pi.  2.  To  same  eifect,  Vandrink  v.  Archer,  1  Leon.  221, 
a  sale  by  a  finder.  The  judges  thought,  however,  that  an  innocent  sale 
would  not  be  conversion.  But  this  dictum  is  overruled  by  the  later 
authorities.  Consol.  Co.  v.  Curtis,  [1892]  1  Q.  B.  495;  1  Ames  &  Smith, 
Cases  on  Torts,  328,  333,  n.  4. 

"Basset  v.  Maynard,  1  Roll.  Ab.  105   (M),  5. 

'Bishop  v.  Montague,  Cro.  El.  824,  Cro.  Jac.  50. 


64.     AMES:    THE  HISTORY  OF  TROVER    443 

Exchequer  gave  a  similar  decision  in  1610. l  In  1627,  in 
Kinaston  v.  Moore,2  "  semble  per  all  the  Justices  and  Barons, 
.  .  .  although  he  take  it  as  a  trespass,  yet  the  other  may 
charge  him  in  an  action  upon  the  case  in  a  trover  if  he  will." 

In  all  these  cases  the  original  taking  was  adverse.  If, 
however,  the  original  taking  was  not  adverse,  as  where  one 
took  possession  as  a  finder,  a  subsequent  adverse  holding,  as 
by  refusing  to  give  up  the  goods  to  the  owner  on  request, 
made  the  taker,  according  to  the  early  authorities  cited  in 
the  first  part  of  this  paper, 3  a  trespasser  ab  initio.  Trover 
was  allowed  against  such  a  finder  in  1586,  in  Eason  v.  New- 
man, 4  Fenner,  J.,  citing  the  opinion  of  Prisot,  C.  J.,  that 
the  owner  could  maintain  trespass  in  such  a  case. 

That  trover  was  allowed  in  Eason  v.  Newman  as  a  substi- 
tute for  trespass,  and  not  as  an  alternative  of  detinue,  is 
evident,  when  we  find  that  for  many  years  after  this  case 
trover  was  not  allowed  against  a  bailee  who  refused  to  deliver 
the  chattel  to  the  bailor  on  request.  The  bailee  was  never 
liable  in  trespass,  but  in  detinue.  In  1638,  in  Holsworth's 
Case, 5  an  attempt  to  charge  a  bailee  in  trover  for  a  wrong- 
ful detention  was  unsuccessful,  as  was  a  similar  attempt  nine 
years  later  in  Walker's  Case,6  "  because  the  defendant  came 
to  them  by  the  plaintiff's  own  livery."  A  plaintiff  failed  in 
a  similar  case  in  1650. 7  In  the  "  Compleat  Attorney,"1 
published  in  1666,  we  read:  "This  action  (trover)  properly 
lies  where  the  defendant  hath  found  any  of  the  plaintiff's 
goods  and  refuseth  to  deliver  them  upon  demand;  or  where 
the  defendant  comes  by  the  goods  by  the  delivery  of  any 
other  than  the  plaintiff."  But  in  1675,  in  Sykes  v.  Wales,9 
Windham,  J.,  said:  "And  so  trover  lieth  on  bare  demand 
and  denial  against  the  bailee." 

By  these  decisions  trover  became  concurrent  with  detinue 

1Leverson  v.  Kirk,  1  Roll.  Ab.  105  (M),  10. 

2  Cro.  Car.  89. 

6  Supra,  429. 

*Goldesb.  152,  pi.  79;  Cro.  El.  495,  s.  c. 

6  Clayt.  57,  pi.  99. 

6  Clayt.  127,  pi.  227. 

7  Strafford  v.  Pell,  Clayt.  151,  pi.  276. 

8  p.  86. 

9  3  Keb.  282.     See  also  Scot  and  Manby's  Case  (1664),  1  Keb.  449, 
per  Bridgman. 


444  VII.     TORTS 


in  all  cases,  except  against  a  bailee  who  could  not  deliver  be- 
cause he  had  carelessly  lost  the  goods.1  Indeed,  trover  in 
practice,  by  reason  of  its  procedural  advantages,  superseded 
detinue  until  the  present  century.  2 

Although  trover  had  now  made  the  field  of  detinue  and 
trespass  its  own,  there  was  yet  one  more  conquest  to  be 
made.  Trespass,  as  the  learned  reader  will  remember,  would 
not  lie,  originally,  for  a  wrongful  distress,  the  taking  in  such 
a  case  not  being  in  the  nature  of  a  disseisin.  In  time,  how- 
ever, trespass  became  concurrent  with  replevin.  History 
repeats  itself  in  this  respect,  in  the  development  of  trover. 
In  Dee  v.  Bacon, 3  the  defendant  pleaded  to  an  action  of 
trover  that  he  took  the  goods  damage  feasant.  The  plea 
was  adjudged  bad  as  being  an  argumentative  denial  of  the 
conversion.  Salter  v.  Butler4  and  Agars  v.  Lisle5  were 
similar  decisions,  because,  as  was  said  in  the  last  case,  "  a 
distress  is  no  conversion."  The  same  doctrine  was  held  a 
century  later  in  two  cases  in  Bunbury.  But  in  1770,  in 
Tinkler  v.  Poole, 6  these  two  cases,  which  simply  followed  the 
earlier  precedents,  were  characterized  by  Lord  Mansfield  as 
"  very  loose  notes,"  and  ever  since  that  case  it  has  been 
generally  agreed  that  a  wrongful  distress  is  a  conversion. 

This  last  step  being  taken,  trover  became  theoretically 
concurrent  with  all  of  our  four  actions,  appeal  of  larceny, 
trespass,  detinue,  and  replevin,  and  in  practice  the  common 
remedy  in  all  cases  of  asportation  or  detention  of  chattels  or 
of  their  misuse  or  destruction  by  a  defendant  in  possession. 
The  career  of  trover  in  the  field  of  torts  is  matched  only  by 
that  of  assumpsit,  the  other  specialized  form  of  action  on  the 
case,  in  the  domain  of  contract. 

The  parallel  between  trover  and  assumpsit  holds  good  not 

*Even  here  the  bailee  was  chargeable  in  case,  i.  e.  assumpsit. 

2  In  1833,  the  defendant  in  detinue  lost  his  right  to  defend  by  wager 
of  law,  and  by  the  Common  Law  Procedure  Act  of  1854,  c.  78,  the 
plaintiff  gained  the  right  to  an  order  for  the  specific  delivery  of  the 
chattel  detained.  Under  the  influence  of  these  statutory  changes, 
detinue  has  regained  some  of  its  lost  ground. 

8Cro.  El.  435. 

*Noy,  46. 

BHutt.   10. 

•5  Burr.  2657. 

71  Ames  &  Smith,  Cases  on  Torts,  274,  n.  3. 


64.     AMES:    THE  HISTORY  OF  TROVER    445 

only  in  the  success  with  which  they  took  the  place  of  other 
common-law  actions,  but  also  in  their  usurpation,  in  certain 
cases,  of  the  function  of  bills  in  equity.  A  defendant  who 
has  acquired  the  legal  title  to  the  plaintiff's  property  by 
fraud  or  duress,  is  properly  described  as  a  constructive 
trustee  for  the  plaintiff.  And  yet  if  the  res  so  acquired  is 
money,  the  plaintiff  may  have  an  action  of  assumpsit  for 
money  had  and  received  to  his  use ;  and  if  the  res  is  a  chattel 
other  than  money,  the  plaintiff  is  allowed,  at  least  in  this 
country,  to  sue  the  defendant  in  trover. l  In  some  cases,  in- 
deed, an  express  trustee  is  chargeable  in  trover,  as  where  an 
indorsee  for  collection  refuses  to  give  back  the  bill  or  note 
to  the  indorser.  Lord  Hardwicke,  it  is  true,  had  grave 
doubts  as  to  the  admissibility  of  trover  in  such  a  case ; 2  but 
Lord  Eldon  reluctantly  recognized  the  innovation.3  This 
innovation,  it  should  never  be  forgotten,  was  a  usurpation. 
Trover  as  a  substitute  for  a  bill  in  equity  is,  and  always  must 
be,  an  anomaly. 

*Thurston  v.  Blanchard,  22  Pick.  18;  1  Ames  &  Smith,  Cases  on 
Torts,  287,  288,  n.  2. 

*Ex  parte  Dumas,  2  Ves.  583. 

8 Ex  parte  Pease,  19  Ves.  46:  "If  the  doctrine  of  those  cases  is  right, 
in  which  the  court  has  struggled  upon  equitable  principles  to  support 
an  action  of  trover,  these  bills  might  be  recovered  at  law;  but  there 
is  no  doubt  that  they  might  be  recovered  by  a  bill  in  equity." 


65.    THE  HISTORY  OF  THE  LAW  OF 
DEFAMATION  1 

BY  VAN  VECHTEN  VEEDER2 

IF  the  laws  of  each  age  were  formulated  systematically, 
no  part  of  the  legal  system  would  be  more  instructive 
than  the  law  relating  to  defamation.  Since  the  law  of  de- 
famation professes  to  protect  personal  character  and  public 
institutions  from  destructive  attacks,  without  sacrificing 
freedom  of  thought  and  the  benefit  of  public  discussion,  the 
estimate  formed  of  the  relative  importance  of  these  objects, 
and  the  degree  of  success  attained  in  reconciling  them, 
would  be  an  admirable  measure  of  the  culture,  liberality, 
and  practical  ability  of  each  age.  Unfortunately  the 
English  law  of  defamation  is  not  the  deliberate  product  of 
any  period.  It  is  a  mass  which  has  grown  by  aggregation, 
with  very  little  intervention  from  legislation,  and  special 
and  peculiar  circumstances  have  from  time  to  time  shaped 
its  varying  course.  The  result  is  that  perhaps  no  other 
branch  of  the  law  is  as  open  to  criticism  for  its  doubts  and 
difficulties,  its  meaningless  and  grotesque  anomalies.  It  is, 
as  a  whole,  absurd  in  theory,  and  very  often  mischievous  in 
its  practical  operation. 

Nevertheless,  the  existence  of  any  body  of  legal  rules  is 
at  least  prima  facie  ground  of  justification.  Some,  it  may 
be,  are  wholly  pernicious ;  but  they  must  have  had  some 
origin,  and  the  longer  they  have  existed  the  greater  is  the 

1This  Essay  was  first  published  in  the  Columbia  Law  Review,  1903- 
1904,  Vol.  Ill,  pp.  546-573,  Vol.  IV,  pp.  33-56,  and  has  been  revised  by 
the  author  for  this  Collection.  The  second  part  of  the  original  essay, 
commenting  on  the  theory  and  policy  of  the  present  law,  is  here 
omitted. 

*  A  biographical  sketch  of  this  author  is  prefixed  to  Essay  No.  20,  in 
Volume  I  of  this  Collection. 


65.     VEEDER:   DEFAMATION  447 

presumption  that  they  have  some  utility.  They  can  be  ac- 
counted for  only  by  discovering  the  special  circumstances 
out  of  which  they  arose,  and  the  forces  to  which  they  have 
been  exposed.  By  studying  the  way  in  which  they  have 
grown,  and  the  functions  which  they  have  discharged,  we 
can  best  arrive  at  a  sound  conclusion  concerning  their  real 
nature  and  value. 

Early  in  the  middle  ages  reputation  was  amply  protected 
in  England  by  the  combined  secular  and  spiritual  authori- 
ties. In  the  course  of  the  nationalization  of  justice  by  the 
king's  judges  the  jurisdiction  of  the  seignorial  courts  fell 
into  decay ;  and,  after  a  long  and  bitter  struggle,  the  juris- 
diction of  the  ecclesiastical  courts  was  also  absorbed  by  the 
royal  tribunals.  When,  however,  the  king's  courts  acquired 
jurisdiction  over  defamation,  during  the  latter  half  of  the 
sixteenth  century,  various  social  and  political  conditions 
combined  to  contract  the  actionable  right,  or  remedy.  The 
king's  courts  granted  only  a  limited  remedy,  the  selection 
being  based  partly  upon  the  character  of  the  imputation, 
partly  upon  the  consequences  resulting  therefrom;  more- 
over, even  this  limited  remedy  was  little  concerned  in  theory 
with  the  right  to  reputation  as  such.  By  reason  of  its 
growth  in  this  way  the  early  common  law  of  defamation  con- 
sisted merely  of  a  series  of  exceptions  to  entire  license  of 
speech.  When,  at  length,  early  in  the  seventeenth  century, 
the  potentialities  of  the  printing  press  dawned  upon  the  ab- 
solute monarchy,  the  emergency  was  met,  not  by  further 
additions  to  the  list  of  actionable  imputations,  but  by  a 
direct  importation  of  the  Roman  law,  without  regard  to 
Roman  limitations,  and  with  certain  additions  adapted  to 
the  purpose  in  hand.  This  special  provision  for  written  or 
printed  defamation,  first  adopted  in  the  criminal  law,  even- 
tually became  also  a  principle  of  civil  judicature.  In  this 
way  a  new  principle  of  actionable  defamation,  based  upon 
mere  form,  was  introduced  in  the  law.  The  original  com- 
mon law  doctrine  of  defamation,  based  upon  the  nature  of 
the  imputation,  became  stereotyped  as  the  law  of  spoken 
defamation,  or  slander;  the  doctrine  inherited  from  Roman 
law,  through  the  Star  Chamber,  became  the  law  of  written 


448  VII.     TORTS 


and  printed  defamation,  or  libel.1  The  English  law  of  de- 
famation, therefore,  was  first  limited  by  a  process  of  selection, 
and  then  confused  by  a  formal  distinction  which  is  not  only 
unknown  in  other  systems  of  law, 2  but  is  also  wholly  acci- 
dental in  origin  and  irrational  in  principle. 

The  beginnings  of  the  law  of  defamation  among  the  Ger- 
manic people  take  us  back  to  the  first  stages  in  the  develop- 
ment of  organized  society.  The  blood  feud  had  supplanted 
indiscriminate  vengeance,  but  the  substitution  of  the  wer, 
or  money  payment,  as  compensation  for  injury,  was  not 
very  old  when  the  early  Leges  Barbarorum  were  compiled. 
The  process  is  very  clearly  marked  in  the  case  of  defamation. 
The  Lex  Salica  is  much  concerned  with  foul  language.  If 
one  calls  a  man  "  wolf  "  or  "  hare  "  he  must  pay  three  shill- 
ings ;  for  a  false  imputation  of  unchastity  against  a  woman 
the  penalty  is  forty-five  shillings. 3  By  the  terms  of  the  Nor- 

1  Mr.   Frank  Carr  suggests,  in  his  admirable  article  on  defamation 
in  the  Law  Quarterly  Review,  xviii,  255,  388,  that  in  this  respect  we  are 
sharing   to    some   extent   the    fate   of   the    Roman   contractual   system; 
formal  in  character,  but  with  some  contracts  privileged  to  be  formless. 
And  the  measure  of  the  comparative  failure  of  the  Roman  contractual 
system,  as  contrasted  with  contract,  as  interpreted  by  the  doctrine  of 
consideration,  is  the  measure  of  the  inadequacy  of  our  law  of  defama- 
tion. 

2  The  principles  of  Roman  law  lie  at  the  basis  of  most  of  the  foreign 
systems  of  law.    In  the  principal  continental  systems  there  is  no  funda- 
mental  distinction   as   to   right   of  action  between  written   and   spoken 
defamation.    The  penalty  may  be  (in  Germany  always  is)  higher  in  the 
case  of  writing,  but  the  cause  of  action  is  the  same.     In  the  civil  action, 
as  a  rule,  only  actual  damages  can  be  recovered.     The  defamer  is  pun- 
ished by  concurrent  criminal  actions,  in  which  the  penalties  are  heavier 
when  the   defamation   was   public    (also,   in   Germany,  when   it   can  be 
shown  that  the  defendant  knew  his  statements  were  false).     The  truth 
is  not  always  a  defence.     In  the  case  of  defamatory  statements  pub- 
lished in  newspapers,  French  law  admits  proof  of  truth  only  when  the 
statements  refer  to  official  acts.     In  German  law  the  truth  is  regularly 
admitted;    but  it  does  not  avert  punishment  in  criminal  actions  if  the 
statement  was  made  in  an  insulting  manner.     By  the  law  of  Scotland 
every  defamatory  statement,  without  regard  to  the  form  in  which  it  is 
made,  is  actionable.     The  elements   of  the  offence  are  the  injury  sus- 
tained and  the  insult  for  which  solatium  is  due.     The  common  law  dis- 
tinctions are  likewise  unknown  in  Louisiana. 

Prof.  Munroe  Smith  gives  a  lucid  sketch  of  the  foreign  law  in  the 
Universal  Encyclopedia,  tit.  Libel  and  Slander,  together  with  a  bibliog- 
raphy of  the  foreign  law.  See  also  Stephen,  Hist,  of  the  Criminal  Law, 
ii,  387  et  seq.;  10  Law.  Quar.  Rev.,  160;  Encyclopedia  of  Scotch  Law, 
tit.  Defamation;  Aiken  v.  Reat,  7  Murrell  (Sc.)  149;  Louisiana  Civil 
Code,  Art.  2315,  and  Session  Laws  of  1888,  No.  118. 

3  Lex  Salica,  tit.  30  (Hessels  and  Kern,  col.  181). 


65.     VEEDER:   DEFAMATION  449 

man  Costumal  if  one  falsely  calls  another  "  thief  "  or  "  man- 
slayer  "  he  must  pay  damages,  and,  holding  his  nose  with 
his  fingers,  must  publicly  confess  himself  a  liar.1  It  is  a 
mistaken  idea,  therefore,  to  suppose  that  the  primitive  Teu- 
ton could  feel  only  blows,  and  treated  hard  words  of  no  ac- 
count. Many  forms  of  expression  which  in  a  civilized  com- 
munity would  be  regarded  as  violent  abuse  doubtless  passed 
for  common  pleasantry,  but  reputation  was  dear  to  him  and 
shame  was  keenly  felt.  Indeed,  a  good  reputation  was  a  de- 
fence to  almost  every  crime.  2 

More  than  a  thousand  years  ago  King  Alfred  provided 
that  the  slanderer  should  have  his  tongue  cut  out,  unless 
he  could  redeem  it  with  the  price  of  his  head.  3  The  oldest 
English  laws  exact  byt  andwite  of  those  who  give  bad  names. 
The  earliest  records  of  pleadings  in  the  local  courts  indicate 
the  prevailing  sensitiveness;  disgrace  or  dishonor  is  one  of 
the  elements  in  almost  every  cause  of  action.  If  the  defend- 
ant had  beaten  the  plaintiff,  this  was  done  to  the  plaintiff's 
damage  to  the  amount  of  so  many  shillings,  and  to  his  dis- 
honor (vituperium,  dedecus,  pudor,  hunt  age)  to  the  amount 
of  so  many  shillings  more.4 

Actions  for  defamation  were  common  in  the  seignorial 
courts  in  the  thirteenth  and  fourteenth  centuries.5  Many 
would  doubtless  resort  to  the  duel,  but  for  the  mass  of 
humble  folk  these  courts  probably  did  substantial  justice. 

1  Ancienne  Coutume,   Cap.   76    (ed.   de  Gruchy,   197) .     Inasmuch  as 
these  penalties  were  regarded  as  compensation  to  the  wronged  individual, 
in  exchange  for  his  older  right  of  private  vengeance,  there  is  a  tendency 
to  make  the  penalty  correspond  to  the  degree  of  irritation  which  the 
wrong  would  naturally  excite.     Thus,  in  early  Icelandic  law,  the  man 
accused  of  cowardice  had  the  right  of  slaying  his  accuser.     Prof.  Mun- 
roe  Smith  in  Univ.  Enc.,  tit.  Libel  and  Slander. 

2  Pollock  and  Maitland,  Hist,  of  English  Law,  ii,  535,  536. 

8  Quadripartitus  (ed.  Liebermann,  67)  ;  Wilk.,  Leg.  Ang.  Sax.,  41. 
The  laws  of  Edgar  and  Canute  are  to  the  same  effect.  Ib.  64,  136. 

*  Pollock  and  Maitland,  ii,  536. 

'Select  Pleas  in  Manorial  Courts  (Selden  Soc.  Pub.),  19,  36,  82,  95, 
109,  116,  143,  170;  The  Court  Baron  (Selden  Soc.  Pub.),  48,  57,  61,  125, 
133,  136.  Cf.  Prof.  Maitland  in  Green  Bag,  ii,  5,  6,  particularly  his 
instructive  extract  from  a  hypothetical  case  found  in  a  book  of  prece- 
dents for  pleadings  in  manorial  courts.  The  manorial  rolls  indicate 
that  the  defendant  might  allege  that  his  words  were  true.  Select 
Pleas  in  Manorial  Courts,  82.  Thus  early  slander  is  said  to  have  been 
uttered  of  malice  aforethought,  and  sometimes  the  plaintiff  alleges 
special  damage.  Pollock  and  Maitland,  ii,  536. 


450  VII.     TORTS 


The  manorial  rolls  show  the  operation  of  a  jurisdiction  suf- 
ficiently certain  and  severe  to  curb  defamation  of  the  baser 
sort.  In  these  local  courts  the  smirched  reputation  would 
be  cleared  before  the  very  persons  in  whose  presence  it  had 
been  reviled.  So  that  even  at  a  later  day  when  the  king's 
courts  were  well  established,  they  do  not  deal  with  defama- 
tion; for  such  wrongs  the  humbler  subjects  sought  their 
remedy  in  the  more  familiar,  cheaper,  and  perhaps  more 
trusted,  local  courts.  When,  at  length,  late  in  the  sixteenth 
century,  actions  for  defamation  became  common  in  the  king's 
courts,  the  manorial  courts  were  in  their  decay.1 

Meanwhile  the  Church  punished  defamation  as  a  sin. 
Throughout  Europe  in  the  middle  ages  a  great  government 
existed,  independent  of  the  separate  states;  the  temporal 
government  was  local,  but  there  was  a  spiritual  jurisdiction 
which  was  universal.  From  its  humble  beginnings  in  the 
efforts  of  the  early  Christian  churches  to  persuade  the  faith- 
ful to  lay  their  differences  before  their  pastors,  a  jurisdic- 
tion had  been  evolved,  through  the  canons  established  by  the 
great  councils  during  the  fourth  and  fifth  centuries,  which 
had  grown  into  a  mighty  system.  It  outgrew  its  foster- 
mother,  the  Roman  law,  and  throughout  Europe  challenged 
the  secular  authority.  From  the  ninth  century  to  the  close 
of  the  middle  ages,  the  most  autocratic  monarch  of  Western 
Europe  would  not  have  dreamed  of  denying  the  authority 
of  the  canon  law.  It  had  its  own  tribunals,  its  own  practi- 
tioners, its  own  procedure;  it  was  a  very  real  and  active 
force  in  men's  lives.2  Indeed,  monopolizing  learning,  as 
they  did,  the  clergy,  as  individuals,  were  indispensable  in 
the  social  life  of  the  people ;  and,  as  an  organized  caste,  the 
Church,  in  the  performance  of  its  professed  duty  to  support 
the  right  and  to  protect  the  weak,  had  grasped  the  regula- 
tion of  nearly  everything  that  concerned  the  peaceful  occu- 
pations of  life.3 

The  demarcation  of  the  real  province  of  this  ecclesiastical 
jurisdiction  was  a  difficult  task.  The  Church  claimed  and 

*Law  Quar.  Rev.,  xviii,  264-267. 

aJenks,  Law  and  Politics  in  the  Middle  Ages,  29. 

8  N.  St.  John  Green  in  Am.  Law  Rev.,  vi,  595. 


65.     VEEDER:   DEFAMATION  451 

exercised  jurisdiction,  as  of  a  spiritual  nature,  not  alone 
over  matters  of  ecclesiastical  economy,  but  over  matrimonial 
and  testamentary  causes  and  pledges,  and  was  with  diffi- 
culty prevented  from  appropriating  the  greater  part  of  the 
province  of  contract.  But  its  broadest  claim  was  the  cor- 
rection of  the  sinner  for  his  soul's  health.  Under  this  head, 
along  with  the  whole  province  of  sexual  morality,  usury,  and 
perjury  came  defamation.  Contumelious  words  were  among 
the  various  matters  which  had  been  embraced  in  Roman  law 
under  the  title  "  injuria."  Injuria,  in  its  legal  acceptation, 
meant  insult ;  but  it  was  more  comprehensive  than  the  mod- 
ern significance  of  the  word.  A  person  was  insulted  in  many 
ways  by  direct  force,  as  by  assault  and  battery ;  or  without 
direct  force,  as  by  shouting  after  him  in  the  street  so  as  to 
cause  a  crowd  to  follow  him.  Reproachful  language  which 
lessened  one's  good  fame  was  also  an  injury;  and  this  class 
of  injuries  grew  in  ecclesiastical  law  into  the  distinct  title 
"  diffimation."  The  Church,  then,  being  answerable  for  the 
cleanliness  of  men's  lives,  stayed  the  tongue  of  the  defamer 
at  once  pro  custodia  morum  of  the  community,  and  pro  salute 
animce  of  the  delinquent.  The  usual  ecclesiastical  penance 
for  the  offence  was  an  acknowledgment  of  the  baselessness  of 
the  imputation,  in  the  vestry  room  in  the  presence  of  the 
clergyman  and  church  wardens  of  the  parish,  and  an  apology 
to  the  person  defamed.1 

William  the  Conqueror  did  not  question  the  ecclesiastical 
jurisdiction.  At  the  conquest  all/th'e  tribunals  were  pre- 
sided over  by  ecclesiastics,  and  for  nearly  a  century  there- 
after many  of  the  king's  judges  were  ecclesiastics.  The 
Conqueror  simply  separated  the  ecclesiastical  from  the  civil 
jurisdiction  by  a  historic  ordinance  commanding  that  no 
bishop  or  archdeacon  should  thereafter  hold  pleas  relative 
to  ecclesiastical  matters,  as  theretofore,  in  the  county  court. 
Shortly  afterwards,  however,  the  rivalry  between  the  secular 

'For  the  canon  law  in  general  see  the  luminous  chapter  in  Pollock 
and  Maitland,  i.  88.  With  particular  reference  to  defamation,  see  the 
very  learned  article  on  slander  and  libel  by  N.  St.  John  Green  in  Ameri- 
can Law  Rev.,  vi,  593;  also  Law  Quar.  Rev.,  xviii,  267  et  seq.  Mr.  Can- 
points  out  the  curious  anticipation  of  the  punishments  suggested  by 
Bentham. 


452  VII.     TORTS 


and  spiritual  jurisdictions  began.  One  of  the  first  limits 
put  upon  the  Church's  pretensions  to  punish  sin  was  the 
requirement  that  if  the  sin  was  also  an  offence  which  the  tem- 
poral courts  could  punish,  the  spiritual  judges  were  not  to 
meddle  with  it.  The  first  statute  in  which  defamation  is 
mentioned  dates  from  the  thirteenth  year  of  Edward  I.  In 
specifying  certain  cases  "  wherein  the  king's  prohibition  doth 
not  lie,"  it  was  provided :  "  And  in  cause  of  defamation  it 
hath  been  granted  already  that  it  shall  be  tried  in  a  spiritual 
court  where  money  is  not  demanded."  That  is,  the  tem- 
poral and  spiritual  courts  would  seem  to  have  divided  the 
cause  of  action,  the  forum  depending  upon  whether  money 
was  demanded.  This  line  of  demarcation  becomes  very  sig- 
nificant in  after  times ;  but  apparently  it  bore  no  immediate 
fruit,  for  it  is  long  before  we  find  actions  of  defamation  in 
the  king's  courts.  Indeed,  as  soon  afterwards  as  the  ninth 
year  of  Edward  II  it  was  enacted  that  corporal  penance  in 
defamation  might  be  commuted  for  a  money  payment,  "  the 
king's  prohibition  notwithstanding."2  A  statute  of  the 
succeeding  reign,  limiting  the  exercise  of  the  spiritual  juris- 
diction so  as  not  to  deter  from  the  prosecution  of  the  offend- 
ers before  the  king's  justices,3  points  the  other  way,  and 
presages  the  long  and  bitter  struggle  between  Church  and 
State  over  the  administration  of  justice. 

Apart  from  the  growing  power  of  the  king's  courts,  the 
tyranny  and  corruption  tof  the  ecclesiastical  courts  had,  long 
before  the  Reformatf6n^  aroused  a  very  strong  feeling  of 
antipathy.  Their  inquisitorial  procedure  was  little  calculated 
to  commend  itself.  Most  of  the  cases  were  instigated  by  the 
obnoxious  apparitors  attending  the  various  courts,  who 
gathered  in  the  gossip  of  the  day,  and  retailed  it  to  the  court 
as  a  ground  for  denunciation  and  prosecution.4  Then,  too, 
it  is  surprising  that  injured  persons  should  have  been  con- 
tent so  long  with  the  very  limited  satisfaction  of  seeing  their 

1 13  Edward  I,  c.  1. 

2  9  Edward  II,  c.  4. 

*  Edward  III,  c.  11. 

*See  English  Political  Songs  (Camden  Soc.  Pub.),  155;  Chaucer's 
reference  to  the  Sompnour  in  the  Prologue  to  the  Frere's  Tale.  Law 
Quar.  Rev.,  xviii,  268,  269. 


65.     VEEDER:   DEFAMATION  453 

defamers  doing  penance  in  a  white  sheet.1  These  considera- 
tions doubtless  contributed  towards  the  ultimately  successful 
aggression  of  the  king's  courts.  Before  the  Commonwealth 
the  jurisdiction  of  the  Church  had  been  crippled.2  It  sur- 
vived in  theory  without  any  adequate  means  of  enforcement,3 
and  was  finally  abolished  altogether  in  the  second  decade  of 
Victoria's  reign.  4 

Archdeacon  Hale's  Precedents  include  a  number  of  inter- 
esting causes  of  defamation  during  the  period  from  1475  to 
1610.  Out  of  some  seven  hundred  causes  collected,  about 
six  per  cent  concern  defamation.  As  may  be  inferred  from 
the  fact  that  the  vast  majority  of  the  cases  collected  relate 
in  one  way  or  another  to  sexual  immorality,  the  majority  of 
the  slanders  alleged  are  those  which  impute  this  offence. 5  In 
three  cases  the  defamation  was  in  writing,  but  no  distinction 
seems  to  have  been  taken  on  that  ground;  in  one  of  the  later 
cases  it  is  expressly  declared  that  no  distinction  is  to  be  taken 
as  to  mere  form.6 

While  as  yet  the  bulk  of  the  nation  found  a  remedy  for 
defamation  in  the  seignorial  and  ecclesiastical  courts,  there 
was  still  another  jurisdiction,  during  part  of  this  time,  open 
to  a  limited  aristocracy,  official  or  otherwise,  and  adminis- 
tered by  the  king's  council.  This  was  the  statutory  offence 
known  as  De  Scandalis  Magnatum.*s'r£he  original  statute, 
enacted  in  1275,  provided:  «, 

"  Whereasmuch  as  there  have  beeft  afore  times  found  in  the 
country  devisers  of  tales  .  .  .  whereby  ^discord  or  occasion  of 
discord  hath  arisen  between  the  king  Mid  his  people  or  great 
men  of  this  realm  ...  it  is  commandefi'  that  none  be  so  hardy 
as  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 ;  he  that  doth  so  shall 
be  taken  and  kept  in  prison  until  he  hath  brought  him  into  the 
court  which  was  first  author  of  the  tale."  7 

1  Green  Bag,  ii,  4.         2 16  Charles  I,  c.  4. 

3 13  Charles  II,  c.  12,  s.  4.     The  limitations  of  the  surviving  juris- 
diction appear  in  Crompton  v.  Butler  (1790)  1  Haggard  460. 
*  18  &  19  Vic.,  c.  41. 
6  Law  Quar.  Rev.,  xviii,  270-272. 

6  Ware  v.  Johnson  (1755)  2  Lee  103. 

7  3  Edward  I,  c.  34;  Statutes  at  Large,  i.  97.     A  later  statute  par- 
ticularizes  the  "great  men  of  the  realm":   "Prelates,  Dukes,   Earls, 


454  VII.     TORTS 


A  subsequent  act  in  the  reign  of  Richard  II  recites  the 
former  act  against  "  devisers  of  false  news  and  of  horrible 
and  false  lies,  of  prelates,  dukes,  earls,  barons,  and  other 
noble  and  great  men  of  the  realm,  whereby  great  discord 
hath  arisen,  and  whereof,  great  peril  and  mischief  might 
come  to  all  the  realm,  and  quick  subversion  and  destruction 
of  the  said  realm,  if  due  remedy  be  not  provided,"  and  then 
continues : 

"It  is  accorded  and  agreed  in  this  Parliament  that  when  any 
such  deviser  is  taken  and  imprisoned  and  cannot  find  him  by 
whom  the  speech  is  moved,  as  before  is  said,  that  he  shall  be 
punished  by  the  advice  of  the  said  council,  notwithstanding  the 
said  statutes."  * 

These  statutes  were  construed  with  the  generous  compre- 
hensiveness which  characterized  the  activities  of  the  king's 
council.2  The  criminal  remedy  was  enforced  by  the  council, 
sitting,  according  to  Crompton,  in  the  "  starred  chamber." 
Although  the  statutes  had  also  a  civil  aspect,  the  civil  remedy 
was  seldom  used.  The  last  action  under  these  statutes  was  in 
1710 ;  but  they  were  formally  repealed  only  in  recent 
times.4 

The  action  De  Scandalis  Magnatum  was  of  little  impor- 
tance in  itself,  but  in  its  tendency  and  ultimate  consequences 
it  had  a  very  significant  bearing  upon  the  law  of  defamation. 
Protecting  none  but  the  great  men  of  the  realm  who,  on  ac- 
count of  their  noble  birth  or  official  dignity,  could  not  or 
would  not  demean  themselves  either  by  personal  encounter  or 
by  resort  to  any  other  jurisdiction  than  that  of  their  sover- 
eign, these  statutes  are  hardly  to  be  taken  as  a  recognition 
by  the  royal  authority  of  the  right  to  reputation.  They  were 

Barons,  and  great  men  of  the  realm,  and  also  of  the  Chancellor,  Treas- 
urer, Clerk  of  the  Privy  Seal,  Steward  of  the  King's  House,  Justices 
of  the  one  bench  or  the  other,  and  of  other  great  officers  of  this  realm. 
2  Richard  II,  c.  5. 

1 12  Richard  II,  c.  11 ;  Statutes  at  Large,  ii,  305. 

8  See  Lord  Townsend  v.  Dr.  Hughes,  2  Mod.  150. 

8  The  first  civil  action  was  brought  more  than  one  hundred  years 
after  the  date  of  the  last  statute  defining  the  offence.  10  Rep.  75. 
Lord  Townshend  v.  Dr.  Hughes,  2  Mod.  150. 

4 Statute  Law  Revision  Act,  50  &  51  Vic.,  c.  59  (1887). 


65.     VEEDER:   DEFAMATION  455 

in  fact  directed  rather  against  sedition  and  turbulence  than 
against  ordinary  defamation.  We  know  from  their  context 
and  from  contemporaneous  history  that  their  immediate 
cause  is  to  be  found  in  the  plain  speaking  and  homely  wit  of 
the  Lollard  rhymes  current  in  the  days  of  the  peasants'  re- 
volt. The  political  songs  current  in  the  Plantagenet  times 
sounded  the  voice  of  the  people  in  public  affairs.  Indeed,  for 
centuries  the  song  and  ballad  writers  were  the  only  spokes- 
men of  the  people  in  political  affairs.  It  was  they  who  gave 
voice  to  popular  criticism,  discontent  and  rejoicing,  in  a 
form,  moreover,  in  which  every  mood  of  passion  was  embodied 
with  a  condensation  of  force  and  feeling  to  which  the  raillery 
of  sadness  of  music  added  its  own  significance.  It  was  with 
reference  to  such  a  time  that  one  can  appreciate  the  force  of 
Fletcher's  well-known  sentiment  that  the  making  of  the  peo- 
ple's songs  is  a  greater  influence  than  the  making  of  their 
laws. 

The  significance  of  the  action  De  Scandalis  Magnatum  is^ 
then,  that  it  was  directed  against  political  scandal,  and  that 
the  law  was  administered  in  the  Star  Chamber.  This  cogni- 
zance of  defamation  considered  as  a  political  and  criminal 
offence  was  repeatedly  confirmed,  and  as  to  particular  cases, 
extended  by  subsequent  statutes.  It  was  a  familiar  jurisdic- 
tion, and  one  which  constantly  grew  with  exercise.  Hence 
it  is  not  surprising  to  find  that  by  the  time  of  Elizabeth  the 
Star  Chamber  had  assumed  jurisdiction  of  cases  of  ordinary 
or  non-political  defamation,  which  it  decided  in  the  way  of 
criminal  proceedings.  There  was  indeed,  a  measure  of  justi- 
fication for  this  course.  The  duel  was  still  a  common  method 
of  vindication  among  those  who  did  not  come  within  the 
terms  of  the  statutory  remedy.  Now  the  Star  Chamber  made 
every  effort,  in  the  interest  of  the  public  peace,  to  suppress 
duelling.1  But  it  might  well  feel  that  it  was  idle  to  prohibit 
this  ancient  remedy  and  offer  no  substitute.  Therefore  it 

1In  1613  James  I  issued  a  royal  edict  against  duelling,  and  this 
was  supplemented  in  the  following  year  by  a  Star  Chamber  decree 
on  the  same  subject.  From  this  time  on  the  courts  waged  a  continuous 
hostility  to  the  duel  in  all  its  forms;  they  refused  to  regard  it  as  in  any 
way  an  affair  of  honor,  but  held  it  to  be  an  unlawful  assembly  in  an 
aggravated  form. 


456  VII.     TORTS 


took  cognizance  of  both  political  and  non-political  defama- 
tion in  the  interests  of  public  tranquillity.1 
Y/f  Finally  we  come  to  the  king's  courts  of  common  law, 
Which,  prior  to  the  reign  of  Elizabeth,  practically  gave  no 
remedy  for  defamation.  This  fact  is,  of  course,  at  variance 
with  modern  ideas,  according  to  which  the  administration 
of  justice  is  regarded  as  the  inevitable  and  exclusive  function 
of  the  state.  But  a  glance  at  the  condition  of  Europe  in  the 
middle  ages  will  show  that  state  justice  was  then  very  feeble. 
Men  were  judged  by  their  lords,  by  their  fellow  burghers, 
by  their  priests,  but  they  were  seldom  judged  by  the  state. 
In  England  the  jurisdiction  of  the  state  grew  more  rapidly 
than  elsewhere.  The  development  of  the  system  of  writs,  by 
means  of  which  the  king's  justices  built  up  the  jurisdiction 
of  the  royal  courts,  practically  ceased  with  Henry  III ;  hence- 
forth judicial  legislation  proceeded  only  by  the  slow  stages 
of  decision  and  precedent.  Edward  I,  however,  carried  on 
the  process  with  a  new  conception.  Law  had  been  declared 
by  kings,  by  landowners,  by  folks,  by  judges,  by  merchants, 
by  ecclesiastics.  By  combining  all  these  forces  in  legislation 
we  get  a  law  which  is  stronger,  better,  and  more  comprehen- 
sive than  the  separate  laws  which  preceded  it.  For  more 
than  two  centuries  this  conception  of  national  law  found  a 
serious  rival  in  the  canon  law,  but  with  the  Reformation  the 
modern  idea  of  law  was  realized.  2 

For  the  statement  that  pleas  of  defamation  were  not  en- 
tertained in  the  king's  court  we  have  express  authority.  The 
earliest  mention  of  the  offence  in  this  jurisdiction  occurs  in 
a  picturesque  dispute  between  two  Irish  magnates,  which  had 
been  removed  in  1295  to  Westminster,  where  the  whole  proc- 
ess was  annulled  for  errors,  foremost  among  which  was  the 
fact  that  the  case  had  begun  with  a  charge  of  defamation  — 
"  and  it  is  not  used  in  this  realm  that  pleas  of  defamation 
should  be  pleaded  in  the  king's  court."  3  The  silence  of  the 
Year  Books  and  of  the  Abridgments  confirm  this  statement. 

*Law  Quar.  Rev.,  xviii,  391.  For  a  further  account  of  this  jurisdic- 
tion, see  Carr,  supra,  260-263,  and  Odgers,  Digest  of  Libel  and  Slander, 
ch.  Iv,  where  the  cases  are  cited. 

2Jenks,  Law  and  Politics  in  the  Middle  Ages,  43,  44. 

3  Rat.  Parl.,  i,  133;  Green  Bag,  ii,  4. 


65.     VEEDER:   DEFAMATION  457 

In  the  Year  Books,  from  the  first  year  of  the  reign  of  Ed- 
ward III  to  the  last  year  of  Henry  VIII,  a  period  of  two 
hundred  and  twenty  years,  there  are  in  all  only  ten  cases  of 
defamation;  one  in  the  time  of  Edward  III,  three  under 
Edward  IV,  one  under  Henry  VII,  and  five  under  Henry  VIII. 
The  oldest  Abridgments,  Statham's  (1494)  and  Fitzher- 
bert's  (1563),  do  not  mention  the  6  action  sur  le  cas  pur 
parolx ';  and  Brooke's  Abridgment  (1573)  contains  only 
two  paragraphs  under  this  head. 1  This  brings  us  to  the 
reign  of  Elizabeth,  which  marks  a  turning  point. 

The  king's  courts,  then,  did  not  usually  entertain  such 
actions.  But,  as  already  shown,  this  denial  of  a  remedy  in 
the  king's  courts  was  no  denial  of  a  right.  There  were  other 
courts  where  reputation  was  defended.  Only  as  the  old  local 
courts  fell  into  decay  did  denial  of  a  remedy  at  Westminster 
come  to  be  a  denial  of  a  right.  This  may  serve  to  explain 
the  few  instances  in  which,  in  early  times  and  under  excep- 
tional circumstance,  we  do  come  across  the  action  in  the  king's 
courts.  The  fact  that  when  the  action  does  first  appear  it 
is  in  the  form  of  a  special  action  on  the  case  is  quite  conclu-\ 
sive  that  there  was  no  remedy  at  common  law  prior  to  the 
statute  of  Westminster  the  Second.  Prior  to  that  time  the 
right  was  probably  adequately  protected  by  the  seignorial 
courts.  When  however,  these  local  courts  had  fallen  into  de- 
cay, the  question  of  royal  jurisdiction  would  become  more 
important.  But  by  that  time  the  task  was  not  an  easy  one. 
The  time  had  passed  when  a  new  form  of  action  could  be 
created  without  statute,  which  made  it  necessary  to  discharge 
the  new  function  by  means  of  an  action  on  the  special  case 
for  words,  under  the  statute  of  13  Edward  I.  2 


1Holt  on  Libel  23;  Law  Quar.  Rev.,  xviii,  388.  According  to  Mr. 
Carr  these  few  cases  are  unimportant.  The  earliest  case,  from  the  Year 
Books,  was  complicated  with  contempt  of  court.  Of  the  two  latest, 
from  Brooke's  Abridgment,  the  first  was  to  the  effect  that  a  charge  of 
being  a  "hereticke  or  advowterer"  was  actionable  only  in  a  spiritual 
court,  while  for  calling  one  a  bawd  an  action  lay  in  both  courts.  The 
second  holds  that  an  action  would  lie  for  calling  a  man  a  "theefe." 
See  also  the  entry  from  the  Exchequer  roll  of  1265  in  Prynne's  Animad- 
versions on  Coke's  Fourth  Institute,  58 ;  Pollock  and  Maitland,  ii.  535. 

'Prof.  Maitland  in  Green  Bag,  ii,  7;  The  Court  Baron  (Selden  Soc. 
Pub.),  116. 


458  VII.     TORTS 


The  principal  difficulty  doubtless  arose  from  the  fact  that 
the  ecclesiastical  courts,  having  from  remote  times  corrected 
the  slanderer  for  his  soul's  health,  had,  owing  to  the  decay 
of  the  local  courts,  come  to  be  regarded  as  having,  in  some 
measure,  an  exclusive  right  to  deal  with  defamation.  The 
statute  Circumspecte  agatis,  passed  in  the  same  year  as  the 
statute  of  Westminster  the  Second,  is  an  indication  of  the  de- 
mand, which  had  even  then  become  pronounced,  that  more 
definite  bounds  should  be  set  to  the  ecclesiastical  jurisdiction. 
But  the  Church  strenuously  resisted  all  such  attempts.  The 
common  law  courts  resorted  to  prohibitions.  The  ecclesias- 
tical courts,  on  their  side,  wielded  the  powerful  weapon  of 
excommunication.  The  protracted  struggle  has  ended  in  the 
complete  victory  of  the  secular  jurisdiction  only  in  our  own 
day.  The  law  of  defamation,  in  common  with  most  of  the 
other  subjects  originally  within  the  spiritual  jurisdiction, 
still  bears  the  scars  of  this  contest,  and  some  of  its  doctrines 
can  be  explained  in  no  other  way. 

However  acquired,  cases  of  defamation  begin  to  appear 
in  the  king's  courts  soon  after  the  last  Year  Books.  During 
the  reigns  of  Elizabeth,  James  I,  and  Charles  I,  the  reports 
teem  with  such  cases,  and  the  bulk  of  litigation  in  defamation 
at  once  assumed  very  large  proportions. 

It  was  during  this  period  that  the  rules  of  actionability 
were  formulated  which  in  aftertimes  came  to  be  applied  ex- 
clusively to  oral  defamation.  There  was  as  yet,  of  course, 
no  distinction  at  common  law  between  slander  and  libel.  The 
law  thus  evolved  by  no  means  covered  all  defamatory  words ; 
only  certain  specific  imputations  were  actionable.  The  prin- 
ciple of  selection  was  founded  partly  upon  the  character  of 
the  imputation,  partly  upon  the  consequences  arising  from  it. 
The  exceptions  to  unbridled  license  of  speech  founded  upon 
the  nature  or  substance  of  the  charge  were:  imputations  of 
an  indictable  offence  or  crime ;  imputations  of  having  certain 
contagious  disorders,  i.  e.,  syphilis,  leprosy,  and  the  plague ; 
any  imputation  affecting  a  man's  reputation  for  skill  and 
address  in  his  business,  office,  trade,  profession,  or  occupa- 
tion, which  tended  to  cause  his  position  to  be  prejudicially 
affected.  The  other  exception,  founded  upon  consequences, 


65.     VEEDER:   DEFAMATION  459 

allowed  an  action  for  any  imputation  which  had  in  fact  di- 
rectly caused  special  damage.1 

How  the  law  came  to  be  thus  circumscribed  is  not  entirely 
clear.  The  conditions  under  which  the  common  law  jurisdic- 
tion was  acquired  —  i.  e.,  the  struggle  with  the  ecclesiastical 
courts,  and  the  necessity  of  exercising  jurisdiction  through 
the  medium  of  an  action  on  the  special  case  for  words,  prob- 
ably lie  at  the  root  of  the  matter.2  In  a  general  way  the 
early  cases  throw  some  light.  Naturally  the  law  seems  new 
and  unsettled.  The  judges  assert  that  many  kinds  of  defama- 
tory imputations  are  merely  spiritual,  and  as  such  are  within 
the  legitimate  province  of  the  courts  Christian,  while  others 
are  strictly  temporal.  It  is  curious  to  find  the  judges  thus 
early  discouraging  the  action  by  the  application  of  the  most 
absurd  subtleties  and  refinements.  Slanders  were  construed 
like  legal  writs.  The  judges  were  guided  by  the  principle 
which  they  called  mitior  sensus,  according  to  which  language 
which  could  by  any  process  of  scholastic  ingenuity  be  tor- 
tured into  a  harmless  significance  went  without  remedy.  The 
probable  explanation  of  this  attitude  is  the  large  amount  of 
litigation  of  this  kind,  which  perhaps  biased  the  judges 
against  the  action.  Coke  expressed  the  prevailing  feeling 
in  Croft  v.  Brown : 


"  We  will  not  give  more  favor  unto  actions  upon  the  case  for 
words  than  of  necessity  we  oujht  to,  where  words  are  not  appar- 
ently scandalous,  these  actions  being  now  too  frequent." J 

The  judges  seem  to  have  begun  to  draw  a  distinction  be- 
tween words  actionable  per  se  and  those  actionable  only  on 
proof  of  special  damage  in  the  exercise  of  a  discretionary 
power  of  allowing  or  disallowing  actions.  Early  in  the  seven- 
teenth century  it  was  stated  that 

imputations  tending  to  disinherison  come  properly  under  this 
branch  of  the  law. 

3  Green  Bag,  ii.  4.  But,  as  Prof.  Maitland  says,  the  process  is  not 
clear.  For  instance,  we  are  told  that  the  imputation  conveyed  by  the 
word  "meretrix"  is  merely  spiritual.  But  it  was  not  so  regarded  by 
the  local  courts  in  the  middle  ages.  Ib.  7. 

8  3  Bulstrode  167. 


460  VII.     TORTS 


"  where  words  spoken  do  tend  to  the  infamy,  discredit  or  dis- 
grace of  the  party,  there  the  words  shall  be  actionable." 1 

And  nearly  a  century  later  Holt  observed  that 

"  it  was  not  worth  while  to  be  learned  on  the  subj  ect ;  but  when- 
ever words  tended  to  take  away  a  man's  reputation  he  would  en- 
courage actions  for  them,  because  so  doing  would  much  con- 
tribute to  the  preservation  of  the  peace."2 

But  their  discretion  came  at  length  to  be  exercised  accord- 
ing to  fixed  rules,  and  these  rules  became  fixed  law. 

The  conditions  and  the  habits  of  thought  prevailing  in 
early  society  afford  some  explanation  why  it  was  not  im- 
peratively necessary  to  provide  legal  redress  for  slanders  and 
insults  of  such  a  nature  as  to  injure  the  character  or  hurt 
the  sensibility,  unless  they  were  also  such  as  to  result  in 
legal  damage  to  the  person  against  whom  they  were  directed. 
Men  were  not  more  courteous  by  nature  or  inclination  then 
than  now.  They  were  restrained  by  a  code  which  formed 
no  part  of  the  legal  system,  but  which  was  nevertheless  a 
very  potent  instrument.  Men  could  and  did  avenge  them- 
selves without  calling  in  the  assistance  of  the  law,  and  public 
opinion  for  centuries  sanctioned  the  "  code  of  honor."  But 
with  the  progress  of  civilization  it  became  apparent  that 
dueling  was  not  only  foolish  and  vicious  in  principle,  but  a 
menace  to  the  public  peace  as  well.  As  the  sanction  of 
public  opinion  was  gradually  withdrawn,  the  laws  for  the 
preservation  of  the  peace  were  continually  strengthened. 
But  in  the  final  result,  the  law  suppressed  the  instincts  of 
nature  and  gave  no  substitute. 3 

1  Small  v.  Hammond,  1  Bulstrode  40. 

2  Baker  v.  Pierce,  6  Modern,  23. 

3  A  plausible  explanation  of  the  method  by  which  the  common  law 
courts   acquired  jurisdiction  in   defamation,  which  would   also   explain 
the  process  of  selection  of  actionable  words,  was  advanced  by  N.  St. 
John  Green  in  the  very  interesting  article  to  which  reference  has   al- 
ready been  made.      (Am.  Law  Rev.,  vi,  593,  607  et  seq.)     It  was  an 
established  principle  of  law  from  the  time  of  Bracton  that  the  accesso- 
rium  must  come  under  the  same  jurisdiction  as  the  principale;  that  is, 
jurisdiction    over    a    thing    drew    with    it    jurisdiction    over    all    things 
accessory.    It  was  by  means  of  this  rule  that  the  court  of  King's  Bench, 
by  the  fiction  that  the  defendant  was  in  its  custody,  and  the  court  of 
Exchequer,  by  the  fiction  of  indebtedness  to  the  crown,  were  enabled 
to    extend    their    respective    jurisdictions    over    most    of    the    matters 
originally   pertaining   exclusively   to    the    Common    Pleas.      Upon   this 


65.     VEEDER:   DEFAMATION  461 

Thus  stood  the  law  when  the  rapid  development  of  the 
art  of  printing  aroused  the  absolute  monarchy  to  a  keen  sense 
of  the  danger  of  this  new  method  of  diffusion  of  ideas.  In 
early  times  libels  must  have  been  comparatively  rare  and 
harmless:  rare  because  few  could  write,  harmless  because 

principle  the  common  law  courts  may  have  worked  in  wresting  from 
the  spiritual  courts  jurisdiction  over  defamation. 

Upon  this  assumption  the  various  classes  of  actionable  words  may 
be  explained.  Take  the  accusation  of  crime.  A  court  of  law  hav- 
ing jurisdiction  of  the  offence  charged  for  the  purpose  of  punishing 
the  offender,  this  jurisdiction  might  well  be  held  to  draw  after  it  as 
an  incident  the  right  to  investigate  the  charge  for  the  purpose  of  com- 
pensating the  party  defamed  if  the  charge  was  false.  But  to  give  this 
jurisdiction  the  imputation  must  be  direct  —  a  crime  must  be  charged. 
One  might  suffer  as  much  in  reputation  and  pecuniary  damage  from 
being  called  a  thievish  knave  as  from  being  called  a  thief.  But  to  call 
one  a  thievish  knave  imputes  only  a  disposition  to  commit  a  crime,  not 
a  crime  committed;  and  as  there  is  nothing  to  which  the  jurisdic- 
tion of  the  court  can  attach,  such  an  accusation  is  not  actionable  in  the 
common  law  courts.  \ 

The  fact  that  it  is  actionable  to  impute  that  one  is  suffering  from 
leprosy,  syphilis,  or  the  plague,  while  it  is  not  actionable  to  charge  a 
person  with  having  any  other  disease  (and  not  actionable  to  impute 
having  had  those  specified),  may  be  accounted  for  in  the  same  way. 
In  early  times,  when  a  person  became  afflicted  with  leprosy  he  was 
deemed  to  be  legally  dead  and  lost  the  privileges  of  citizenship.  The 
Church  took  the  same  view,  and,  on  the  day  when  the  sufferer  was  con- 
signed for  life  to  a  lazar-house,  performed  over  him  the  various  solemn 
ceremonies  observed  in  the  burial  of  the  dead.  As  the  leper  was  sub- 
ject to  the  writ  de  leproso  amovendo,  the  accusation  of  leprosy  as  well 
as  the  accusation  of  crime  might  be  held  actionable,  and  upon  the 
same  ground.  Persons  suspected  of  having  the  plague  were  likewise 
removed  by  law  to  pest-houses  and  confined.  To  account  for  the 
charge  of  having  syphilis  is  more  difficult.  Whether  upon  the  appear- 
ance of  this  disease,  in  the  fifteenth  century,  it  was  regarded  as  con- 
tagious, and  so  exposed  the  sufferer  to  a  writ  like  the  writ  de  leproso, 
or  whether  the  disease  was  so  similar  in  its  outward  manifestations  to 
the  form  of  leprosy  then  prevalent  in  England,  can  only  be  conjectured. 
It  was  a  disease  quite  prevalent  among  the  clergy,  and  there  is  abun- 
dant evidence  to  show  that  it  was  considered  no  more  disgraceful  than 
any  other  severe  disorder. 

The  earlier  cases  with  respect  to  defamatory  words  touching  a  person 
in  his  office  or  means  of  livelihood  relate  almost  altogether  to  the  ad- 
ministration of  justice.  It  would  not  be  difficult  to  bring  the  slander 
of  a  judge  within  the  jurisdiction  of  the  common  law  courts.  Words 
spoken  of  an  attorney,  of  which  there  are  several  early  cases,  likewise 
touch  the  administration  of  justice.  To  call  a  merchant  a  bankrupt 
was  to  subject  him  to  the  statute  of  bankruptcy,  and  might  be  held 
actionable  upon  the  same  principle  as  the  accusation  of  crime.  That 
pecuniary  loss  was  the  gist  of  the  action,  or  that  damage  to  a  man's 
business  would  itself  furnish  a  ground  of  action  in  a  temporal  court, 
appears  to  be  an  idea  which  originated  after  the  ecclesiastical  courts 
had  lost  their  power.  It  is  founded  upon  the  idea  that  everything 
relating  to  money  or  business  is  temporal,  as  pertaining  to  matters  of 
this  world. 


462  VII.     TORTS 


few  could  read.  The  invention  of  printing,  however,  gave 
a  new  impulse  to  composition.  Caxton  had  set  up  his  press 
at  Westminster  in  1476,  and  the  art  spread  rapidly  during 
the  sixteenth  century.  From  the  very  first  Church  and 
State  alike  assumed  to  control  the  press,  as  they  had  pre- 
viously regulated  the  diffusion  of  manuscripts. 

The  Church  had  long  suppressed  the  diffusion  of  ideas 
which  it  deemed  pernicious.  The  first  general  council  of 
Nice  forbade  the  works  of  Arius,  and  subsequent  councils 
had  condemned  the  works  of  Origen  and  others.  Imperial 
power  co-operated  by  burning  condemned  books.  But  this 
total  destruction  of  pernicious  books  was  no  longer  feasible 
after  the  invention  of  printing.  The  Church  endeavored 
to  forestall  publication  by  prohibiting  the  printing  of  all 
works  save  such  as  should  be  first  seen  and  allowed ;  publica- 
tions without  such  license  were  burned,  as  before.  As  this 
method  did  not  meet  with  complete  success,  it  was  supple- 
mented by  indices  or  catalogues  of  books,  the  reading  of 
which  by  the  faithful  was  prohibited.  Such  lists  were  issued 
in  many  parts  of  Europe  by  sovereigns,  universities  and 
inquisitors  during  the  sixteenth  century,  beginning  with  that 
issued  by  Henry  VIII  in  1526.  Pope  Paul  IV  issued  an 
index  in  1559,  but  the  papacy  as  such  took  no  part  in  the 
process  until  the  Council  of  Trent,  the  outcome  of  which 
was  the  famous  index  of  Pius  IV,  in  1564. 

In  England  the  censorship  of  the  press  passed  with  the 
ecclesiastical  supremacy  to  the  crown.  The  censorship  be- 
came part  of  the  royal  prerogative,  and  the  printing  of 
unlicensed  works  was  visited  with  the  most  severe  punish- 
ment. Printing  was  further  restrained  by  patents  and  mon- 
opolies. The  privilege  was  confined,  in  the  first  instance, 
under  regulations  established  by  the  Council  in  Mary's  reign, 
to  the  Stationer's  Company,1  which  had  power  to  seize  all 
other  publications ;  and  the  number  of  presses  and  the  whole 
matter  of  printing  was  strictly  limited  in  all  its  details. 
Under  Elizabeth  the  censorship  was  enforced  by  still  more 
rigorous  penalties,  including  mutilation  and  death.  All 

1  Formed  in  1557.  It  was  composed  of  ninety-seven  London  sta- 
tioners and  their  successors. 


65.     VEEDER:   DEFAMATION  463 

printing  was  interdicted  elsewhere  than  in  London,  Oxford 
and  Cambridge;  nothing  whatever  was  allowed  to  be  pub- 
lished until  it  had  been  first  "  seen,  perused  and  allowed  "  by 
the  Archbishop  of  Canterbury  or  the  Bishop  of  London, 
except  only  publications  by  the  queen's  printers,  appointed 
for  some  special  service,  or  by  law  printers,  for  whom  the 
license  of  the  chief  justices  of  either  bench  was  sufficient. 
This  was  the  situation  when,  at  the  accession  of  James  I, 
all  these  repressive  measures  were  found  to  be  inadequate 
to  suppress  the  rising  tide  of  public  opinion.  The  theologi- 
cal controversies  of  the  sixteenth  century  were  passing  into 
the  political  controversies  of  the  seventeenth.  New  forms  of 
literature  had  arisen.  The  heavy  folio,  written  for  the 
learned,  was  succeeded  by  the  tract  and  the  flying  sheet,  to 
be  read  by  the  multitude.  Some  effective  regulation  was 
imperative.  The  forced  construction  of  the  various  treason 
statutes  was  too  cumbersome  as  an  instrument  of  suppres- 
sion. The  civil  action  for  defamation,  then  in  its  infancy, 
was,  of  course,  entirely  inadequate. 

The  task  was  at  length  undertaken  by  the  Star  Chamber.  < 
The  character  of  this  tribunal  rendered  its  selection  almost 
inevitable.  It  was  composed  of  the  highest  dignitaries  of 
Church  and  State,1  and  it  exercised  practically  unlimited 
authority.  Formally  constituted  a  court  of  criminal  equity 
by  Henry  VII,  the  Star  Chamber's  jurisdiction  was  based 
upon  the  theory  which  had  become  familiar  in  the  civil  law 
through  the  operations  of  the  court  of  Chancery.  There 
were  wrongs  which  could  not  be  effectively  remedied  by  the 
ordinary  courts  of  law,  and  which  could  not  be  overtaken 
immediately  by  legislation.  The  venerated  forms  of  action 
did  not  cover  all  classes  of  wrongs  and  crimes;  nor  was 
even-handed  justice  always  administered  between  the  weak 
and  the  powerful.  It  was  necessary  that  there  should  be  a 
court  with  the  unrestrained  power  to  do  substantial  justice. 
The  Star  Chamber  was  thus  empowered.  It  disregardedi 
forms;  it  was  bound  by  no  rules  of  evidence;  it  sat  inj 

lrrhe  chancellor,  treasurer,  lord  privy  seal,  a  bishop,  a  temporal 
lord,  and  the  two  chief  justices,  or,  in  their  absence,  two  other  judges 
as  assistants.  Later  the  president  of  the  privy  council  was  added. 


464  P/J.     TORTS 


vacation  as  well  as  in  term  time ;  it  appointed  and  heard  only 
its  own  counsel,  thereby  not  being  troubled  with  silly  or 
ignorant  barristers,  or  such  as  were  idle  and  full  of  words. 
Moreover,  it  was  natural  that  the  members  of  this  tribunal 
should  exercise  formal  jurisdiction  over  a  matter  which  they 
had  so  long  attempted  in  various  ways  to  control,  and  with 
the  pernicious  effects  of  which  they  were  deeply  impressed. 

Jurisdiction  over  this  new  and  alarming  form  of  scandal 
was  assumed,  then,  by  the  Star  Chamber.  What  law  should 
govern  it?  The  law  administered  by  the  common  law  courts 
was  of  course  out  of  the  question.  Its  researches  were  quite 
naturally  directed  by  its  ecclesiastical  members  to  that  other 
great  system  of  law  in  which  they  had  been  trained;  and, 
yf  \jft~  finding  it  to  the  purpose,  the  court  boldly  imported  the 
4/*  (Roman  criminal  law.  The  new  law  was  first  set  forth  in 
1609,  in  the  case  De  Libellis  Famosis,1  as  reported  by  Coke, 
and,  later,  was  more  fully  stated  by  Hudson  in  his  Treatise 
on  the  Star  Chamber.2 

Now  the  Roman  law  had  two  sets  of  provisions  for  defa- 
mation —  the  comparatively  mild  law  of  injuria,  and  the 
severe  provisions  of  the  libellus  famosus.  In  early  Roman 
law,  as  in  most  primitive  systems,  verbal  injuries  were  treated 
as  criminal  or  quasi-criminal  offences.  The  essence  of  the 
injury  was  not  the  pecuniary  loss,  which  could  be  compen- 
sated by  damages,  but  the  personal  insult,  which  must  be 
atoned  for  —  a  vindictive  remedy  which  took  the  place  of 
personal  revenge.  We  find  reference,  then,  first,  in  the 
Twelve  Tables,  to  the  libellous  chant  or  song,  which  is  the 
form  of  defamation  obtaining  widest  currency,  and  therefore 
most  keenly  felt,  in  early  society.  This  was  severely  pun- 
ished as  a  crime.  Minor  offences  of  this  nature  came  under 
the  general  conception  of  injuria,  which  included  ultimately 
every  form  of  direct  personal  aggression,  whether  with  or 
without  force,  which  involved  insult  or  contumely. 

In  later  Roman  jurisprudence  verbal  injuries  were  dealt 
with  in  the  edict  under  two  heads.  The  first  comprehended 

1  5  Rep.  125,  a. 

2  Chapter  XI  "  Of  Libelling,"  page  100  et  seq.    This  treatise  was  ap- 
parently compiled  early  in  the  reign  of  Charles  I. 


65.     VEEDER:   DEFAMATION  465 

defamatory  and  injurious  statements  which  were  made  in  a 
public  manner  (convicium  contra  bonos  mores).  The  essence 
of  the  offence  in  this  case  lay  in  the  unwarrantable  public 
proclamation,  in  the  contumely  which  was  offered  to  a  man 
before  his  fellow  citizens.  In  such  cases  the  truth  of  the 
statements  was  no  justification  for  the  unnecessarily  public 
and  insulting  manner  in  which  they  had  been  made.  The 
second  head  included  defamatory  statements  which  were 
made  in  private.  Since  the  offence  in  this  case  lay  in  the 
imputation  itself,  not  in  the  manner  of  its  publication,  the 
truth  was  a  complete  defence;  for  no  man  had  a  right  to 
demand  protection  for  a  false  reputation.  The  law  thus 
aimed  to  give  ample  scope  for  the  discussion  of  personal 
character,  while  it  forbade  the  infliction  of  needless  insult 
and  pain.  The  remedy  for  verbal  injuries  was  long  confined 
to  a  civil  action  (actio  cestimatio)  for  a  money  penalty, 
which  was  estimated  according  to  the  gravity  of  the  case, 
and  which,  although  vindictive  in  character,  included  the 
element  of  compensation.  Imperial  legislation  subsequently 
established  supplementary  criminal  actions  under  which  cer- 
tain kinds  of  defamation  were  punished  with  great  severity. 
These  were  the  libelli  famosi,  particularly  epigrams  and  pas- 
quinades, which,  being  in  their  nature  anonymous  and  scur- 
rilous, were  regarded  as  peculiarly  dangerous  and  were 
visited  with  severe  punishment,  whether  true  or  false.  The 
unnecessarily  public  and  offensive  manner  of  their  publica- 
tion (they  were  generally  scattered  about  the  streets)  pre- 
cluded justification.1 

We  find,  therefore,  a  distinction  based  upon  the  manner 
and  extent  of  publication,  but  none  between  speech  and 
writing;  for  the  evil  song  of  an  early  day  coincides  with 
the  anonymous  pasquil  of  later  times  in  constituting  the 
criminal  offence.  The  crime  was  not  based  upon  the  form 
of  the  publication,  but  upon  the  character  of  the  matter 
published,  the  extent  of  its  diffusion,  and  its  anonymous 
nature. 

1  Hunter,  Roman  Law,  20,  148,  149,  1069,  citing  the  provisions  of  the 
Institutes  and  the  Digest;  Holt  on  Libel,  ch.  i;  Odgers,  Digest  of  Libel 
and  Slander,  165,  166;  Prof.  Munroe  Smith  in  Univ.  Enc.,  tit.  Libel  and 
Slander;  Law  Quar.  Rev.,  x,  158;  ib.  zviii,  256,  257. 


466  VII.     TORTS 


The  Star  Chamber,  as  the  title  of  Coke's  case  indicates, 
adopted  provisions  of  the  libellus  famosus.  The  action  arose 
out  of  an  "  infamous  libel  in  verse "  by  which  the  Arch- 
bishop of  Canterbury,  deceased,  and  the  then  bishop  of  that 
diocese,  were  "  traduced  and  scandalized."  The  principal 
"  points  resolved  "  were  the  following : 

"  Every  libel  (which  is  called  libellus,  sen  irifamatoria  scrip- 
tura)  is  made  either  against  a  private  man,  or  against  a  magis- 
trate or  public  person.  If  it  be  a  private  man  it  deserves  a 
severe  punishment,  for  although  the  libel  be  made  against  one, 
yet  it  incites  all  those  of  the  same  family,  kindred  or  society  to 
revenge,  and  so  tends  per  consequens  to  quarrels  and  breach  of 
the  peace,  and  may  be  the  cause  of  shedding  of  blood,  and  of 
great  inconvenience;  if  it  be  against  a  magistrate,  or  other 
public  person,  it  is  a  greater  offence;  for  it  concerns  not  only 
the  breach  of  the  peace,  but  also  the  scandal  of  government; 
for  what  greater  scandal  of  government  can  there  be  than  to 
have  corrupt  or  wicked  magistrates  to  be  appointed  and  con- 
stituted by  the  king  to  govern  his  sub j  ects  under  him  ?  " 

After  holding,  without  citing  any  authority,  that 

"  a  libeller  shall  be  punished  either  by  indictment  at  the  com- 
mon law,  or  by  bill,  if  he  deny  it,  or  ore  tenus  on  his  confession 
in  the  Star  Chamber,  and  according  to  the  quality  of  the  offence 
he  may  be  punished  by  fine  or  imprisonment,  and  if  the  case  be 
exorbitant,  by  pillory  and  loss  of  his  ears/' 

the  report  continues: 

"  It  is  not  material  whether  the  libel  be  true,  or  whether  the 
party  against  whom  it  is  made  be  of  good  or  ill  fame;  for  in  a 
settled  state  of  government  the  party  ought  to  complain  for 
every  injury  done  him  in  an  ordinary  course  of  law,  and  not  by 
any  means  to  revenge  himself,  either  by  the  odious  course  of 
libelling  or  otherwise:  he  who  kills  a  man  with  his  sword  in  a 
fight  is  a  great  offender,  but  he  is  a  greater  offender  who  poisons 
another;  for  in  the  one  case,  he  who  is  openly  assaulted  may 
defend  himself,  and  knows  his  adversary,  and  may  endeavor 
to  prevent  it;  but  poisoning  may  be  done  so  secretly  that  none 
can  defend  himself  against  it;  for  which  cause  the  offence  is 
the  more  dangerous,  because  the  offender  cannot  easily  be  known ; 
and  of  such  a  nature  is  libelling,  it  is  secret  and  robs  a  man  of 
his  good  name,  which  ought  to  be  more  precious  to  him  than  his 


65.     VEEDER:   DEFAMATION  467 

life,  and  difficilimum  est  invenire  authorem  infamatoriae  scrip- 
turae;  and  therefore  when  the  offender  is  known,  he  ought  to  be 
severely  punished."  x 

Hudson's  treatise  begins  with  a  description  of  the  vari- 
ous ways  in  which  a  person  might  be  libelled;  he  adds  that 
the  publishers  of  libels  are  as  severely  punished  as  the 
makers. 

"  Therefore,  to  hear  it  sung  or  read,  and  to  laugh  at  it,  and  to 
make  merriment  with  it,  hath  ever  been  held  a  publication  in  \       (\ 
law." 

He  points  out 

"  one  difference,  which  standeth  with  the  rules  of  the  law  and 
reason,  and  which,  under  favor,  I  have  ever  conceived  to  be  just. 
That  upon  the  speaking  of  words,  although  they  be  against  a 
great  person,  the  defendant  may  justify  them  as  true;  as  in  all 
actions  de  scandalis  magnatum,  which  are  as  properly  to  be  sued 
in  the  Star  Chamber  as  in  any  other  court,  and  he  shall  be  there 
received  to  make  the  truth  appear.  But  if  he  put  the  scandal 
writing,  it  is  then  past  any  justification,  for  then  the  manner  is 
examinable  and  not  the  matter/' 

The  case  De  Libellis  Famosis  is  the  formal  starting  point 
of  the  English  law  of  libel.  By  it  a  new  form  of  actionable 
defamation,  based  upon  mere  form,  was  introduced  in  the 
law.  Apart  from  the  disposition  of  the  authorities  to  adopt 
the  most  stringent  methods  of  suppression,  there  were  some 
plausible  grounds  for  this  new  doctrine  of  criminal  libel. 
It  was,  of  course,  aimed  directly  at  printing,  although  it 
included  writing.  Writing  had  been  for  centuries  so  rare 
an  accomplishment  that  much  weight  was  attached  to  any- 
thing written.  Before  the  invention  of  printing  libels  were 
generally  published  by  scattering  papers  containing  them 

1  After  describing  the  different  forms  of  libel,  the  report  concludes 
in  Coke's  usual  sententious  style  with  a  passage  showing  that  libelling 
and  calumniation  is  an  offence  against  God.  He  cites  several  passages 
from  Scripture,  and  concludes :  "  And  it  was  observed  that  Job,  who  was 
the  mirror  of  patience,  as  appears  by  his  words  [Job  30,  ver.  7  &  8], 
became  quodammodo  impatient  when  libels  were  made  of  him;  and 
therefore  it  appears  of  what  force  they  are  to  provoke  impatience  and 
contention." 


468  VII.     TORTS 


in  the  streets,  or  by  posting  them  in  public  places.  Such 
libels  were  generally  against  the  government  or  those  in 
authority.  By  the  Theodosian  Code  the  publication  of  such 
libels  seems  to  have  been  looked  upon  as  treason,  and  was 
punished  as  a  high  crime.  In  England  such  offences  were 
generally  brought  within  the  generous  scope  of  the  law  of 
treason  and  sedition.  Coke  mentions  two  cases  of  libels  upon 
private  individuals  in  the  reign  of  Edward  III,  and  in  both 
cases  the  libeller  was  criminally  punished.  Now  came  a 
method  of  dissemination  whose  potentialities  were  unlimited, 
with  all  the  dangers  of  anonymity,  and  in  a  more  permanent 
form  than  writing.  Moreover,  seditious  libel  (and  all  libels 
were  deemed  seditious)  is  in  its  nature  a  sort  of  attempt, 
and  the  Star  Chamber  applied  the  doctrine  that  attempts 
and  conspiracies  to  do  anything  unlawful  were  substantive 
offences.1 

But  it  is  apparent  that  the  Star  Chamber  adopted  the 
Roman  law  to  its  own  use  without  regard  to  Roman  limita- 
tions and  with  certain  additions  of  its  own,  chief  among 
which  was  the  fundamental  principle  that  libel  is  punishable 
/as  a  crime  because  it  tends  to  a  breach  of  the  peace.  The 
Roman  criminal  law  was  directed  against  anonymous  pas- 
quinades. When,  therefore,  the  Star  Chamber  sought  to 
apply  this  law  to  a  publication  which  was  not  anonymous, 
its  inapplicability  must  have  been  at  once  pointed  out.  That 
this  was  done  is  made  plain  from  what  Hudson  says  about 
two  gross  errors  that  have  crept  into  the  world  concerning 
libels. 

"  That  it  is  no  libel  if  the  party  put  his  hand  unto  it ;  and  the 
other,  that  it  is  not  a  libel  if  it  be  true;  both  which  have  long 
been  expelled  out  of  this  court.  For  the  first,  the  reason  why  the 
law  punisheth  libels  is,  for  that  they  tend  to  raise  a  breach  of  the 
peace,  which  may  as  well  be  done,  and  more  easily,  when  the 
hand  is  subscribed  than  when  it  is  not.  And  for  the  other,  it 
hath  ever  been  agreed,  that  it  is  not  the  matter  but  the  manner 
which  is  punishable:  for  libelling  against  a  common  strumpet 
Is  as  great  an  offence  as  against  an  honest  woman,  and  perhaps 
more  dangerous  to  the  breach  of  the  peace:  for  as  the  woman 
said  she  would  never  grieve  to  have  been  told  of  her  red  nose  if 

1  Hudson,  Treatise  on  the  Star   Chamber,   104,  107. 


65.     VEEDER:   DEFAMATION  469 

she  had  not  one  indeed,  neither  is  it  a  ground  to  examine  the 
truth  or  falsehood  of  a  libel;  for  that  takes  away  subjectum 
quaestionis,  and  determines  it  to  be  no  libel  by  admitting  the 
defendant  to  prove  the  truth/' 

This  principle  of  the  tendency  of  libels  to  a  breach  of 
the  peace  originated  with  the  Star  Chamber.  It  was  not 
only  a  very  shrewd  addition  to  the  law,  as  an  instrument  of: 
suppression,  but  there  was  undoubtedly  some  semblance  of 
the  truth  in  the  statement,  as  applied  to  the  condition  exist- 
ing prior  to  the  formation  of  an  organized  public  opinion. 
While  the  law  developed  only  through  the  pressure  of  out- 
ward needs,  the  statement  of  an  unwelcome  truth  concerning 
another  did  not  serve  the  useful  public  purpose  that  it  does 
now  because  it  did  not  reach  the  public  eye.  But  it  did 
undoubtedly  tend  in  a  semi-civilized  state  of  society  to  stir 
the  hot  blood  of  those  against  whom  it  was  made.1  More- 
over, it  must  be  remembered  that  the  preservation  of  the 
public  peace  was  still  a  very  difficult  and  serious  matter. 

The  Star  Chamber,  then,  having  taken  over  jurisdiction 
of  libel  with  particular  reference  to  discussion  of  affairs  of 
Church  and  State,  the  idea  that  such  libels  were  crimes  and 
as  such  past  justification,  was  formally  introduced  in  Eng- 
lish law;  a  tribunal  of  which  common  law  judges  were 
constituent  members,  drew  a  real  distinction  between  spoken 
and  written  defamation  of  a  political  kind.  Through  its 
jurisdiction  as  a  court,  and  as  the  representative  of  the 
royal  prerogative,  the  Star  Chamber  was  in  immediate  con- 
trol of  the  press  during  the  reigns  of  James  I  and  Charles  Ii 
and  suppressed  political  and  religious  discussion  with  the\ 
utmost  severity.  By  its  famous  ordinance  of  1637  the  mat-' 
ter  of  printing  was  regulated  anew.  The  number  of  master 
printers  was  limited  to  twenty,  who  were  to  give  sureties- 
for  good  behavior,  and  were  to  have  not  more  than  two 
presses  and  two  apprentices  each ;  and  the  number  of  letter 
founders  was  limited  to  four.  The  penalty  for  practising 
the  arts  of  printing,  or  making  any  part  of  a  press  or  other 
printing  materials,  by  persons  disqualified  or  not  appren- 

1  Bishop,  Criminal  Law,  §921. 


470  VII.     TORTS 


ticed  thereto,  was  whipping,  the  pillory,  and  imprisonment. 
Even  books  which  had  been  once  examined  and  allowed  were 
not  to  be  reprinted  without  a  fresh  license,  and  books 
brought  from  abroad  were  to  be  landed  at  London  only, 
and  carefully  examined  by  licensers  appointed  by  the  Arch- 
bishop of  Canterbury  and  the  Bishop  of  London,  who  were 
empowered  to  seize  and  destroy  such  as  were  seditious, 
schismatical  or  offensive.  Periodical  searches  of  booksellers' 
shops  and  private  houses  were  also  authorized  and  en- 
joined. 

Although  the  Star  Chamber  was  abolished  by  the  Long 
Parliament  in  Ifi^O.  the  judges,  the  law,  and  the  censorship 
remained  largely  the  same.  By  orders  of  the  Long  Parlia- 
ment in  164£  and  1643  the  licensing  system  of  the  Star 
Chamber  was  practically  continued.  Shortly  after  the  Res- 
toration the  licensing  system  was  placed  upon  a  legal  basis 
by  statute.1  This  act  expired  in  1679,  and  does  not  appear 
to  have  been  immediately  renewed,  although  the  censorship 
was  continued  during  the  remainder  of  this  reign.  Under 
James  II  the  licensing  act  was  twice  renewed  by  statute,2 
but  lapsed  finally  in  1695.  The  incorporation  of  the  Star 
Chamber  doctrine  of  libel  into  the  common  law  seems  to 
have  been  coincident  with  the  waning  power  of  the  censor- 
ship. It  is  not  at  all  surprising  that  Restoration  judges, 
imbued  with  the  Star  Chamber  doctrines,  replaced  it  with  anj 
equally  efficient  weapon.  In  1680,  less  than  a  year  after  the 
expiration  of  the  Restoration  statute,  Chief  Justice  Scroggs 
announced  that  the  judges  had  twice  declared  unanimously, 
when  summoned  by  the  King's  command  to  give  their  opin- 
ions as  to  what  should  be  done  to  regulate  the  press,  that, 
besides  publications  scandalous  to  the  government  or  to  pub- 
lic or  private  persons,  all  writers  of  false  news,  though 
not  scandalous  or  seditious,  were  indictable.  B  Later  in  this 
year  the  same  judge  repeated  this  statement  in  even  more 
comprehensive  terms: 

1 13  &  14  Car.  ii,  c.  33.  This  act  was  limited  to  two  years;  but  it  was 
continued  by  16  Car.  ii,  c.  8. 

2 1  Jac.  II,  c.  17,  s.  15.  This  act  was  limited  to  eight  years.  It  was 
renewed  in  1693  for  two  years. 

3R.  v.  Harris,  7  How.  St.  Tr.  927. 


65.     VEEDER:   DEFAMATION  471 

"  We  did  all  subscribe  that  to  print  or  publish  any  newspaper 
or  pamphlet  of  news  whatsoever  is  illegal;  that  it  is  a  manifest 
intent  to  a  breach  of  the  peace.  .  .  .  and  that  is  for  a  public 
notice  to  all  people,  and  especially  printers  and  booksellers,  that 
they  ought  to  print  no  books  or  pamphlets  of  news  whatsoever 
without  authority."  l 

It  is  to  this  juncture  that  we  must  look  for  the  creation 
of  that  doctrine,  first  announced  in  the  common  law  courts 
by  Hale,  that  although  words  "  spoken  once "  would  not 
be  actionable,  "  yet  they  being  writ  and  published  "  become 
actionable.  The  later  Roman  law  of  the  libellus  famosus 
thus  become  part  and  parcel  of  the  English  common  law. 
The  formal  distinction  was  apparently  introduced  into  the 
civil  law  by  the  same  process  of  reasoning  that  led  the  Star 
Chamber  to  assume  cognizance  over  non-political  defama- 
tion. The  Star  Chamber  had  been  abolished;  press: 
licensing  was  waning.  How  were  these  non-political,  non 
criminal  libels  to-  be  restrained  if  men  no  longer  had  the 
vindication  of  tbe  duel?  The  difficulty  was  met  by  the 
creation  of  a  new  tort,  written  defamation.2 

The  civil  doctrine  of  libel  was  first  announced  by  Lord  j  ^ 
Chief  Baron  Hale  in  King  v.  Lake  in  the  Exchequer,  in 
1670. 3  There  are  a  few  earlier  cases  in  which  the  defama- 
tion was  in  writing,  but  on  no  occasion  was  this  regarded 
as  a  title  to  a  remedy  if  the  written  matter  did  not  come 
witbin  recognized  exceptions. 4  King  was  a  barrister  who 
claimed  to  have  been  "  damnified  in  his  good  name  and  credit 
and  profession "  by  reason  of  the  fact  that  Sir  Edward 
Lake  had  written  of  a  petition  to  Parliament  drawn  up  by 
King  that  it  was  "  stuffed  with  illegal  assertions,  ineptitudes 
and  imperfections,  and  clogged  with  gross  ignorances,  ab- 
surdities and  solecisms."  Hale  held  that  "  although  such 
general  words  spoken  once  without  writing  or  publishing 
them  would  not.  be  actionable,  yet  here,  they  being  writ  and 

1R.  v.  Carr,  7  ib.  1114.  Long  afterwards  Lord  Camden  pronounced 
this  resolution  of  the  judges  "extra  judicial  and  invalid."  Entick  v. 
Carrington,  19  How.  St.  Tr.  1070. 

2  Frank  Cair  in  Law  Quar.  Rev.,  xviii,  393,  394.  See  also  J.  R. 
Fisher  in  Law  Quar.  Rev.,  x.  158. 

8  Hardres  470;  Skinner  124. 

*Law  Quar.  Rev.,  xviii,  394,  395. 


472  VII.     TORTS 


published,  which  contains  more  malice  than  if  they  had  been 
once  spoken,  they  are  actionable."  In  Harman  v.  Delany,1 
the  court  held  that 

"  words  published  in  writing  will  be  actionable  (though  not  so 
"when  barely  spoken)  which  would  not  be  so  from  a  bare  speak- 
ing of  the  words,  because  libel  perpetuates  and  disperses  the 
scandal." 

From  this  time  on  the  series  of  cases  establishing  the  new 
tort  increases.     The  matter  may  be  said  to  have  been  finally 
determined  by  the  judgment  of  the  Exchequer  Chamber  inl 
the  case  of  Thorley  v.  Lord  Kerry,  in  1812. 2    In  this  very! 
important  case  the  whole  subject  was  ably  argued  by  emi- 
nent counsel.     Sir  James  Mansfield,  in  delivering  the  judg- 
ment of  the  court,  reluctantly  admitted  that  "  the  distinction 
has  been  made  between  written  and  spoken  slander  as  far  | 
back  as  Charles  the  Second's  time." 

"  I  do  not  now  recapitulate  the  cases,"  he  said  in  conclusion, 
"  but  we  cannot  in  opposition  to  them  venture  to  lay  down  at 
this  day  that  no  action  can  be  maintained  for  words  written  for 
which  an  action  could  not  be  maintained  if  they  were  spoken.  If 
the  matter  were  for  the  first  time  to  be  decided  at  this  day,  I 
should  have  no  hesitation  in  saying  that  no  action  could  be 
maintained  for  written  scandal  which  could  not  be  maintained 
for  the  words  if  they  had  been  spoken."  3 

The  historical  development  of  actionable  defamation  has 
now  been  traced  to  the  time  when  the  distinction  as  to  form 
became  fixed.  Written  defamation  is  libel;  spoken  defama- 
tion is  slander.  Libel  is  a  crime  as  well  as  a  tort;  slander 
of  a  private  individual  may  be  a  tort,  but  is  no  crime.  Any 
written  words  which  injure  one's  reputation  are  libellous; 
/but  many  words  which  would  be  actionable  if  written  are 
not  actionable  if  merely  spoken.  In  the  case  of  slander  a 

tFitzgibbon  254. 

9  4  Taunton355. 

•For  the  adoption  of  the  distinction  in  American  law,  see  Dole  v. 
Lyon  (N.  Y.,  1813)  10  Johns.  447;  Cooper  v.  Greeley  (N.  Y.,  1845)  1 
Denio  347  at  362;  Clark  v.  Binney  (Mass.  1824)  2  Pick,  113;  Colby  v. 
Reynolds  (1834)  6  Vt.  489. 


65.     VEEDER:   DEFAMATION  473 

plaintiff  must  satisfy  the  jury  that  the  words  spoken  impute 
the  commission  of  a  crime,  or  the  presence  of  certain  con- 
tagious disorders,  or  that  they  disparage  him  in  the  way 
of  his  office,  profession  or  trade,  in  all  other  cases  he  must 
prove  s^gcial^  damage,  that  is,  that  he  has  sustained  some 
pecuniary  loss  as  a  direct  consequence  of  the  utterance  of 
thewords  complained  of. 


66.    RESPONSIBILITY  FOR  TORTIOUS   ACTS: 
ITS    HISTORY1 

BY  JOHN  HENRY  WiGMORE2 

Not  infrequently  do  the  records  of  the  related  laws  serve  as  the  sole 
resource,  or  the  safest  one,  for  a  methodical  explanation  of  dark  and 
doubtful  topics  in  the  legal  development  of  our  own  native  system. 

BRUNNER:  Deutsche  Rechtsgeschichte,  i.  2. 

conception  can  be  understood  except  through  its  his- 
tory,"  says  the  Positivist  philosopher;  and  of  no 
legal  conception  in  Anglo-American  law  is  this  more  true 
than  of  the  notion  of  Responsibility  for  Tortious  Acts.  By 
this  phrase  is  indicated  that  circumstance  or  group  of  men- 
tal circumstances  attending  the  initiation  and  eventuation 
of  an  acknowledged  harmful  result,  which  induces  us  to  make 
one  person  rather  than  another  (or  than  no  one  at  all) 
civilly  amenable  to  the  law  as  the  source  of  the  harmful  re- 
sult (and  independently  of  whether  this  person  can  show 
some  recognized  justification  for  the  harm).  It  is  this  no- 
tion whose  history  we  find  it  possible  to  trace  back  in  a 
continuous  development  in  our  Germanic  law,  without  a  break, 
for  at  least  two  thousand  years. 

To  get  a  starting-point,  let  us  look  back  from  present 
principles.  The  law  to-day,  so  far  as  we  are  entitled  to 
take  it  as  standing  on  a  rational  basis,  distinguishes  classes 
of  cases  which  may  be  roughly  generalized  for  present  pur- 
poses as  follows:  (1)  Cases  where  the  source  of  harm  is 

xThis  Essay  first  appeared  in  the  Harvard  Law  Review,  1894,  vol. 
VII,  pp.  315,  383,  442,  and  has  been  revised  and  brought  down  to  date 
by  the  author  for  this  Collection;  most  of  the  quotations  from  English 
cases  given  in  the  original  article,  in  the  second  and  third  parts,  have 
been  here  omitted. 

2  A  biographical  note  of  this  author  is  prefixed  to  Essay  No.  40,  in. 
Volume  II  of  this  Collection. 


66.     WIGMORE:  TORTIOUS  RESPONSIBILITY   475 

pure  misadventure,  as  where  a  customer  is  handling  a  sup- 
posed unloaded  gun  in  a  gun-store,  and  it  goes  off  and  in- 
jures the  clerk;  (2)  Cases  where  no  design  to  injure  exists, 
but  a  culpable  want  of  precaution  and  foresight  is  found; 
(3)  Cases  where  no  design  to  injure  exists,  and  yet.no  in- 
quiry into  the  actor's  carefulness  is  allowed,  —  in  other 
words,  where  he  does  the  specific  harm-initiating  act  "  at 
his  peril,"  as  where  he  fires  a  gun  in  the  street,  or  sells 
goods  which  prove  to  be  those  of  another;  (4)  Cases  where 
actual  design  to  produce  the  harm  exists.1  Now,  the  thing 
to  be  noted  is  that  the  primitive  Germanic  law  knew  noth- 
ing of  these  refinements ;  it  made  no  inquiry  into  negli- 
gence, and  it  based  no  rule  on  the  presence  or  absence  of 
a  design  or  intent;  it  did  not  even  distinguish,  in  its 
earlier  phases,  between  accidental  and  intentional  injuries. 
The  distinctions  of  to-day  stand  for  an  attempt  (as  yet 
more  or  less  incomplete)  at  a  rationalized  adjustment  of 
legal  rules  to  considerations  of  fairness  and  social  policy. 
But  the  indiscriminate  liability  of  primitive  times  stands 
for  an  instinctive  impulse,  guided  by  superstition,  to  visit 
with  vengeance,  the  visible  source,  whatever  it  be,  —  human 
or  animal,  witting  or  unwitting,  —  of  the  evil  result.  Both 
these  extremes  are  fairly  clear;  it  is  the  transition  from 
one  notion  to  the  other  which  forms  the  interesting  and 
complex  process. 

In  endeavoring  to  realize  the  nature  of  the  primitive  can- 
ons of  Responsibility,  one  must  take  into  consideration  the 
essentially  superstitious  and  unreasoning  spirit  which  per- 
vaded the  jural  doings  of  primitive  society;  for  the  notion 
here  dealt  with  was  only  one  of  the  vehicles  of  his  expression. 
One  need  not  here  to  call  to  mind  in  detail  the  character- 


Holmes,  Common  Law,  cc.  iii.,  iv.,  esp.  pp.  92  ff.,  144  ff.; 
Pollock,  Torts,  p.  19.  It  is  here  assumed,  for  present  purposes,  that  in 
the  few  classes  of  cases  where  actual  malicious  motive  is  material,  no 
question  of  responsibility,  properly  considered,  is  involved,  but  rather 
a  question  of  the  loss  of  a  privilege;  as  pointed  out  by  Mr.  Justice 
Holmes  in  his  article  on  Privilege,  Malice,  and  Intent  (Harvard  Law 
Review,  VIII,  1;  1894)  and  by  the  present  author  in  an  article  on  the 
Tripartite  Division  of  Torts  (id.,  VIII,  200,  377;  1894).  Professor 
Whittier,  in  his  article  on  Mistake  in  the  Law  of  Torts  (id.  XVI,  335; 
1902)  does  not  accept  this  analysis. 


476  VII.     TORTS 


istics  of  primitive  culture;1  only  certain  of  the  more  ger- 
mane may  be  noted.  The  instinct  of  revenge,  as  an  aggres^ 
sive  reaction  from  inflicted  pain,  preceding  any  developed 
sense  of  justice;2  the  prevalence  of  clan-organization  and 
clan-responsibility;3  the  idea  of  transgression  as  associ- 
ated with  ceremonial  observances;4  the  implicit  belief  in 
taboo  and  curse;5  the  propitiation  of  ghosts  and  deities 
by  gifts  and  sacrifices ; 6  the  sense  of  pollution  and  con- 
tamination (as  by  the  touching  of  blood  or  of  a  corpse);7 
the  inheritance  of  guilt;  the  appeal  to  a  decision  of  the 
Deity  or  of  chance  in  litigation  (as  by  the  subjection  to 
ordeals,  the  swearing  of  exculpatory  oaths,  the  engaging 
in  formal  combat)  ; 8  the  arbitrary  formalism  of  words  and 
phrases  in  pleading  and  oaths,9 — these  give  the  tone  to 
the  times.  In  the  light  of  these  it  is  easy  to  understand 
that  the  notion  of  Responsibility  for  Harmful  Results  was 
determined  largely  by  crude  primitive  instincts  of  supersti- 
tion, —  that  our  ancestors  were  satisfied  with  finding  a  visi- 
ble source  for  the  harm  and  following  out  their  ideas  of 
justice  upon  it. 

It  must  be  remembered,  moreover,  that  we  are  here  deal- 
ing with  a  sentiment  characteristic  of  primitive  justice 
everywhere.  It  was,  beyond  question,  universal.  It  appears 
not  only  in  the  strictly  Germanic  peoples,  but  in  the  records 
of  all  the  race-stocks,  however  mixed,  of  post-Christian  Eu- 

1The  keenest  and  most  comprehensive  analysis  of  these  related  fea- 
tures of  primitive  life  is  to  be  found  in  The  Origin  and  Development  of 
Moral  Ideas,  by  Edward  Westermarck  (lecturer  at  Helsingfors  and  at 
London;  Eng.  ed.  1906),  vol.  I  (vol.  II,  1908,  has  little).  Next  in  sug- 
gestiveness  and  insight  should  be  mentioned  G.  Glotz'  La  solidarite  de  la 
famille  dans  le  droit  criminel  en  Grece  (Paris,  1904).  A  general  sur- 
vey of  the  primitive  attitude  in  English  law  is  given  in  Professor  J.  B. 
Ames'  article  on  "Law  and  Morals,"  1908  (Harvard  Law  Review, 
XXII,  97). 

2  Westermarck,  supra. 

3  Westermarck,  Glotz,  supra. 

*  Spencer,  Ceremonial  Institutions,  10. 

8  Westermarck,  Tylor. 

•Tylor,  Primitive  Culture  (3d  Amer.  ed.),  ii.  380. 

'Tylor,  Ib.,  ii.  429. 

8  Lea,  Superstition  and  Force,  passim. 

"Brunner,  Deutsche  Rechtsgeschichte,  i.  181,  ii.  349;  Wort  und  Form 
in  altfranzos.  Prozess,  1868  (reprinted  in  Revue  Critique  de  L6gisl.  et 
de  Jurisp.,  1871-72,  and  more  recently  in  his  Forschungen,  1894). 


66.     W1GMORE:  TORTIOUS  RESPONSIBILITY   477 

rope,  —  the  Scandinavian, l  the  Flemish-Dutch,2  the  Celtic, 3 
the  French,4  the  Spanish,5  the  Italian,6  the  Slavic,7  the  Hun- 
garian.8 It  is  found  in  earliest  Greece9  and  earliest  Rome.10 

1 K.  v.  Amira,  Nordgermanisches  Obligationenrecht,  1882,  I,  389-91 ; 
H.  Matzen,  Forlaesninger  over  den  danske  Retshistorie,  1897,  II,  48-57; 

F.  Brandt,  Forlaesninger  over  den  norske  Retshistorie,  1883,  II,  §  50, 
pp.  38-46. 

2  S.  J.  Fockema-Andreae,  Het  oud  Nederlandsch  burgerlijk  Recht, 
1906,  II,  115-123;  L.  A.  Warnkoenig,  Flandrische  Staats-  und  Rechts- 
geschichte,  1842,  III,  164,  183,  200;  A.  His,  Das  Strafrecht  der  Friesen, 
1901,  §  46,  pp.  37-61. 

•Ancient  Laws  of  Ireland,  1879,  IV,  247;  H.  d'Arbois  de  Jubainville, 
Etudes  sur  le  droit  celtique,  1895,  I,  §§  20,  22,  pp.  184,  190. 

4E.  Glasson,  Histoire  du  droit  et  des  institutions  de  la  France,  1889, 
III,  560. 

6B.  Oliver,  Historia  del  derecho  de  Cataluna  etc.,  1879,  III,  339. 

6  A.  Fertile,  Storia  del  diritto  italiano,  1892,  2°  ed.,  V,  §170,  pp.  58- 
64;  C.  Calisse,  Storia  del  diritto  penale  italiano,  1895,  §§3-7,  pp.  4-13; 

G.  Salvioli,  Trattato  di  storia  del  diritto  italiano,  1908,  6°  ed.,  §  540,  p. 
720. 

7W.  A.  Maceiowski,  Slavische  Rechtsgeschichte  (Germ,  tr.),  1839,  IV, 
278,  281,  301,  305;  H.  Jirecek,  Das  Recht  in  Boehmen  und  Maehren 
geschichtlich  dargestellt,  1865,  vol.  I,  pt.  2,  p.  142. 

8  A.  v.  Timon,  Ungarische  Verfassungs-  und   Rechtsgeschichte,  1904 
(Germ.  tr.  Schiller),  421. 

9  G.  Glotz,  La  solidarite  de  la  f  amille  dans  le  droit  criminel  en  Grece, 
1904,  pp.  48,  165.     It  is  true  that  B.  W.  Leist,  in  his  Graeco-Italische 
Rechtsgeschichte,  1884,  pp.  286,  333,  344,  350,  394-406,  denies  that  even 
in  the  most  primitive  Greek  period  a  distinction  was  made  between  in- 
tentional and  non-intentional  harms;  but  in  this  he  stands  alone;  though 
Frfudenthal,  in  Mommsen's  Zum  aeltesten  Strafrecht  (cited  infra,  n.  4) 
inclines  to  that  view.    However,  Glotz  has  once  for  all  demonstrated  the 
matter.     It  is  doubtless  to  be  conceded  that  the  Greeks  developed  the 
distinction  at  an  earlier  stage  of  their  history  than  any  other  people; 
this  was  simply  one  of  the  many  marks  of  their  precocious  sense  of  ethics 
in  justice.     The  later  Greek  ideas  are  fully  discussed  in  R.  Loening's 
Die  Geschichte  der  strafrechtliche  Zurechnungslehre,  1905,  vol.  I:  Aris- 
toteles;    on  which  an  elaborate  critique  is  made  by  O.   Kraus,  in  Der 
Gerichtsaal,   1904,  LXV,  153,   172,   "Die  Zurechnungslehre  des   Aristo- 
teles." 

10  T.  Mommsen,  Zum  aeltesten  Strafrecht  der  Kulturvoelker,  Fragen 
zur  rechtsvergleichung,  1905,  p.  3  (with  contributions  also  on  the  Greek, 
Hindu,   Arab,    Islamic,   and   Germanic   laws,   by   various    scholars,    and 
another  on  Roman  law,  by  Hitzig,  agreeing  with  Mommsen)  ;   Pernice, 
Labeo,  1873-1900,  I,  pp.  117,  216,  II,  pp.  5,  36,  49;  Beschuetz,  Die  Fahr- 
laessigkeit,  infra,  note  7;  R.  v.  Ihering,  Das  Schuldmoment  im  Roemi- 
schen  Recht  (in  his  Vermischte  Schriften,  1879),  pp.  155,  163,  200  ("Is 
the  eye  of  primitive  man  closed  to  the  discrimination  of  culpable  and 
innocent  intent?  ...  [It  is,  for]    a  wrong  is  estimated,  not  according 
to  its  cause,  but  its  effect,  —  not  according  to  some  element  in  the  person 
of  the  doer,  but  from  the  standpoint  of  the  injured  party") ;  Hepp,  Die 
Zurechnung  auf  dem  Gebiete  des  Civilrechts,  1838,  passim;  Mommsen, 
Romisches  Strafrecht,  1899,  p.  85  ("the  idea  of  wrong  requires  an  un- 
lawful intent  in  a  person  having  capacity;    but  this  fundamental  prin- 
ciple of  developed  criminal  law  is  in  the  origins  of  that  subject  an  alien 
one.") 


478  VII.     TORTS 


It  is  equally  marked  in  the  Semitic  races  —  Jews  1  and  Mo- 
hammedans —  ,2  as  well  as  their  predecessors  in  Chaldea 
and  Egypt ; 3  and  in  the  totally  unrelated  Hindus  4  and  Chi- 
nese,5 as  well  as  the  Japanese.6  And  in  the  primitive  tribes 
still  surviving  everywhere  —  in  Africa,  Australia,  America, 
and  Asia  —  it  is  still  observable.7  In  the  two  following 
passages,  its  general  bearing  is  broadly  stated: 

1884,  A.  II.  Post,  Die  Grundlage  des  Rechts  und  die  Grund- 
guege  seiner  Entwickelungsgeschichte,  §§39,  40,  pp.  350,  354: 

"  All  wrongs  are  originally  violations  of  rights  between  one 
clan  and  another.  Every  wrong  done  by  an  individual  creates 
an  obligation  for  his  clan  towards  that  of  the  injured  person. 
There  is  thus  no  doctrine,  in  civil  wrongs,  about  intent,  negli- 
gence, guilt,  capacity,  voluntariness,  mistake,  fear,  or  the  like. 
The  whole  point  of  view  of  individual  mental  states  which  domi- 
nates our  modern  tort-law  (a  law  essentially  of  individual  rights 

'"1I.  J.  M.  Rabbinowicz,  Legislation  criminelle  du  Talmud,  1876,  p.  174; 
J.  Thonissen,  Etudes  sur  1'histoire  du  droit  criminel  des  peuples  anciens, 
1869,  II,  183,  265,  App.  D;  Numbers,  XXXV,  22-25,  et  passim. 

2  Thonissen,  supra,  II,  271 ;  J.  Kohler,  Zur  Lehre  von  der  Blutrache, 
1885,  p.  23;  J.  Goldziher,  in  Mommsen's  Zum  aeltesten  Strafrecht,  supra, 
104;  Wellhausen,  ibid.  96. 

3  Thonissen,   supra,   I,   163,    164;    Code   of   Hammurabi,  ed.    Harper, 
§§196-208,  249-251. 

*Oldenberg,  in  Mommsen's  Zum  aeltesten  Strafrecht,  supra,  76;  J. 
Kohler,  Das  Indische  Strafrecht  (Zeitschrift  fuer  vergleichende  Rechts- 
wissenschaft,  1903,  XVI,  pp.  179,  183,  note  13) ;  E.  P.  Buffet,  transla- 
tion of  Parajika,  III,  c.  5  (American  Law  Review,  XLII,  387,  423; 
1908). 

°H.  Betz,  Chinesische  Strafrechtsfaelle  [der  Gegenwart]  (Zeit- 
schrift fuer  vergleichende  Rechtswissenschaft,  XXI,  393,  397;  1908). 
Staunton,  tr.  of  Ta  Tsing  Leu  Lee  (Penal  Code),  1810,  §  292,  and  App. 
XI;  C.  Alabaster,  Notes  and  Commentaries  on  Chinese  Criminal  Law, 
1899,  pp.  260-287;  A.  Leclere,  Recherches  sur  la  legislation  criminelle 
des  Cambodgiens,  1894,  pp.  292,  299,  371. 

6O.  Rudorff,  Tokugawa  Gesetzsammlung  (Mittheil.  der  deutschen 
Ostasiatischen  Gesellschaft,  1889),  Art.  71,  §§  36-39,  Art.  74  of  the  Kuji- 
kata  Osadamegaki  of  1742-83;  H.  Weipert,  Das  Shinto-Gebet  der  grossen 
Reinigung  (Der  Gerichtsaal,  1904,  LXV,  241,  261). 

7  Westermarck,  Moral  Ideas,  supra,  passim ;  A.  H.  Post,  Afrikanische 
Jurisprudenz,  1887,  II,  §  199,  p.  28;  A.  H.  Post,  Grundriss  der  Ethnolo- 
gischen  Jurisprudenz,  1894-5,  II,  §§48-55,  pp.  214-233;  P.  Wilutzky, 
Vorgeschichte  des  Rechts,  1903,  II,  40;  Beschuetz,  Die  Fahrlaessigkeit 
innerhalb  der  geschichtlichen  Entwickelung  der  Schuldlehre,  Teil  I:  Vom 
primitiven  Strafrecht  bis  zur  peinlichen  Gerichtsordnung  Karls  V  (No. 
76,  Ser.  XIV,  in  v.  Lilienthal's  Strafrechtliche  Abhandhmgen,  Breslau), 
1907,  §  2,  pp.  8-28.  Loening's  notable  book  (supra,  n.  3)  is  apparently 
not  completed  beyond  Greek  law. 

Even  Blackstone  had  registered  his  observance  of  this  primitive  trait 
(Commentaries,  IV,  187),  with  Greek,  Roman,  and  Jewish  citations. 


66.     WIGMORE:   TORTIOUS  RESPONSIBILITY  479 

and  duties)  is  alien  to  primitive  law.  Each  clan  is  liable  to  the 
other  for  every  injury  suffered,  whether  it  be  done  by  adult 
clan-members  or  by  women,  children,  animals,  or  lifeless  objects 
belonging  to  the  clan,  and  whether  the  wrongdoer  be  blamable 
or  be  merely  the  involuntary  tool  of  external  forces.  It  is 
only  with  the  dissolution  of  the  clan-organization  that  the  indi- 
vidual aspect  of  wrongs  comes  into  consideration;  and  at  the 
same  time  the  wrongdoer's  mental  state  (wholly  ignored  in  clan- 
law)  comes  for  the  first  time  into  the  foreground.  .  .  .  With  the 
disappearance  of  the  clan-organization  and  the  development  of 
the  State,  by  which  the  inter-tribal  union  grows  into  a  commun- 
ity held  together  by  a  higher  social  power,  and  in  which  the 
individual  is  accorded  a  more  or  less  personal  sphere  of  rights, 
there  arises  gradually  the  notion  of  personal  culpability  as  a 
presupposition  of  personal  responsibility  for  wrongs.  One  of 
its  first  expressions  is  in  the  idea  that  harm  caused  by  accident 
is  not  to  be  so  stringently  treated  as  an  intentional  harm. 
Though  the  intentional  harm  would  justify  a  blood-feud,  the 
accidental  one  can  be  compounded  by  expiation-money ;  and 
wherever  the  injured  party's  duty  to  accept  expiation-money 
comes  to  be  recognized,  this  is  found  first  applied  to  accidental 
harms. 

"  A  further  mark  of  this  gradual  transition  to  personal  culpa- 
bility appears  in  the  diminution  of  the  fine  for  negligent  harms 
as  compared  with  that  for  intentional  ones ;  and  also  in  the  appli- 
cation of  the  negligence-fine  to  harms  done  by  the  women,  chil- 
dren, slaves,  animals,  and  lifeless  objects  belonging  to  the  clan, 
or  by  a  blood-relation  not  himself  responsible.  .  .  .  To  this  dis- 
tinction between  intentional  and  unintentional  harms  the  dis- 
tinction appears  to  be  originally  due  between  criminal  and  civil 
law.  The  intentional  wrong  becomes  the  crime,  by  which  the  doer 
is  made  corporally  responsible.  The  unintentional  wrong  creates 
only  an  obligation  to  give  redress;  only  the  property  of  the 
wrongdoer  is  thereby  made  liable.  It  is  only  gradually  that  cer- 
tain negligent  misdeeds  are  made  punishable  as  crimes,  and  that 
certain  intentional  wrongs  are  treated  merely  as  calling  for  re- 
dress. .  .  . 

"  Moreover,  a  special  grouping  of  negligent  wrongs  is  quite 
alien  to  the  early  legal  systems.  Only  intentional  and  uninten- 
tional acts  are  distinguished.  The  unintentional  includes  the 
negligent  as  well  as  the  unavoidable,  but  without  discriminating 
them.  .  .  .  With  the  rise  of  the  conception  of  culpability  as  the 
presupposition  of  a  wrong,  there  develops  a  deep  and  remarkable 
change  in  legal  ideas.  In  the  primitive  the  social  order  is  re- 
garded merely  from  a  mechanical  point  of  view  and  the  responsi- 
bility for  harm  is  placed  on  him  who  caused  it,  regardless  of 
whether  he  willed  it  or  was  only  the  medium  of  a  higher  force; 


480  VII-     TORTS 


but  now  the  mental  side  of  the  social  union  comes  strongly  to  the 
front.  There  is  thus  prepared  the  basis  for  a  psychological  the- 
ory of  compromise  or  settlement.  The  principle  that  without 
moral  culpability  no  liability  arises  either  to  make  compensation 
or  to  suffer  punishment  develops  necessarily  a  body  of  doctrine 
about  guilt,  capacity,  intent,  negligence,  and  thus  to  distinctions 
between  voluntary  and  involuntary  acts.  The  mechanical  aspect 
of  the  social  order,  originally  the  marked  one,  now  begins  more 
and  more  to  be  ignored,  and  the  mental  aspect,  on  the  other 
hand,  comes  to  be  exclusively  emphasized." 

1888,  P.  F.  Girard,  Les  actions  noxales,  in  Nouvelle  revue 
historique  du  droit  fran^ais  et  etranger,  XII,  38: 

"  There  is  a  phenomenon  which  one  can  discern  throughout  all 
antiquity,  —  that  is,  vengeance,  the  physical,  unreasoning  emo- 
tion, which  drives  the  victim  of  an  injury  to  a  violent  reaction 
against  the  immediate  author  of  the  injury.  He  who  regards 
himself  as  offended  against,  takes  vengeance  for  the  offence  as  he 
will  and  as  he  can,  alone  or  with  the  help  of  others,  recognizing 
only  the  brute  fact  that  he  has  suffered,  and  dominated  by  a  feel- 
ing of  resentment  measured  solely  by  the  harm  he  has  under- 
gone. .  .  .  The  victim  of  the  harm  knows  nothing  but  the  harm 
done  to  him.  He  does  not  concern  himself  with  the  intent  of  the 
doer.  .  .  .  He  therefore  revenges  himself  for  the  harm-causing 
act,  even  though  it  may  have  been  unintentional.  .  .  .  Moreover, 
for  the  same  reason,  the  victim  takes  his  revenge  even  where  the 
immediate  author  of  the  harm  is  not  capable  of  intending  it,  — 
where  it  is  not  a  human  being,  but  an  animal,  or  an  inanimate 
object/'1 

In  this  particular  field,  too,  there  are  numerous  mani- 
festations, all  akin.  The  doer  of  a  deed  was  responsible 
whether  he  acted  innocently  or  inadvertently,  because  he 
was  the  doer;2  the  owner  of  an  instrument  which  caused 
harm  was  responsible,  because  he  was  the  owner,  though 
the  instrument  had  been  wielded  by  a  thief ;  3  the  owner 
of  an  animal,  tbe  master  of  a  slave,  was  responsible  because 
he  was  associated  with  it  as  owner,  as  master;4  the  master 

1So  far  as  regards  the  many  concurring  elements  that  produce  this 
particular  principle,  it  should  be  noted  that  Post  over-emphasizes  the 
clan-life  element,  while  Girard  over-simplifies  the  problem  in  noting  only 
the  vengeance-instinct.  How  tangled  the  primitive  elements  are  can  be 
seen  in  Westermarck's  masterly  chapter,  (cited  supra,  p.  476,  note  1), 
pp.  30-72,  217-231,  241-260,  306. 

8  See  post. 

8  See  post. 

4  See  post. 


€6.     WIGMORE:   TORTIOUS   RESPONSIBILITY  481 

was  liable  to  his  servant's  relatives  for  the  death,  even  ac- 
cidental, of  the  servant,  where  his  business  had  been  the 
occasion  of  the  evil;1  the  rachimburgius,  or  popular  judge, 
was  responsible  for  a  wrong  judgment,  without  regard  to 
his  knowledge  or  his  good  faith;2  the  oath-helper  who 
swore  in  support  of  the  party's  oath  was  responsible,  with- 
out regard  to  his  belief  or  his  good  faith;3  one  who  merely 
attempted  an  evil  was  not  liable  because  there  was  no  evil 
result  to  attribute  to  him;4  a  mere  counsellor  or  instigator 
of  a  wrong  was  not  liable,  because  the  evil  was  sufficiently 

1Brunner,  Deutsche  Rechtsgeschichte  (1892),  II,  549.  "The  master 
was  liable  for  the  wergeld  of  the  workman  if  the  latter  lost  his  life  in 
the  service,  and  for  the  appropriate  money-payment  if  he  was  injured, 
—  so  far  as  the  injury  could  not  be  imputed  to  some  third  person  for 
whom  the  master  (who  had  to  answer  for  the  misdeeds  of  his  own  peo- 
ple) was  not  responsible.  If  one  who  was  in  the  service  of  another  lost 
his  life  by  misadventure,  by  reason  of  a  tree  or  of  fire  or  of  water,  the 
accident  was  imputed  to  the  master  as  homicidium.  If  one  person  sent 
another  away  or  summoned  him  on  the  former's  business,  and  the  latter 
lost  his  life  while  executing  the  order,  the  former  was  taken  as  the 
causa  mortis."  See  LL.  Henry  I.  90. 

2  Brunner,  Ib.,  II,  360.  "  That  the  intention  to  act  wrongfully  is  pre- 
sumed as  of  course  against  the  defeated  party  [in  a  suit  against  the 
judges],  and,  especially  as  regards  the  judges,  that  the  excuse  of  having 
judged  according  to  their  best  knowledge  and  belief  is  not  allowed,  is 
merely  an  individual  application  of  a  fundamental  principle  pervading 
the  Germanic  penal  law,  which  is  to  argue  without  question  from  the 
particular  external  circumstance  to  the  presence  of  an  unlawful  intent, 
and,  (apart  from  typical  exceptions,  not  here  involved)  to  treat  uninten- 
tional misdeeds  the  same  as  intentional  ones,  without  allowing  proof  of 
the  absence  of  intent." 

8  Brunner,  Ib.,  II,  389.  "  The  earlier  times  paid  no  regard  to  the  good 
faith  of  the  individual  oath-helper,  in  accordance  with  their  general 
principle  of  penal  law,  which  without  discussion  treated  the  unlawful 
intent  as  accompanying  the  external  fact  of  an  offence.  .  .  .  The  latter 
development  shows  the  tendency,  on  the  one  hand,  to  increase  the  pun- 
ishment for  a  false  oath,  but,  on  the  other  hand,  to  distinguish  between 
false  oaths  sworn  wittingly  and  unwittingly."  It  may  be  suggested  that 
when  the  learned  investigator  in  these  passages  speaks,  e.  g.,  of  "  treating 
the  unlawful  intent  as  accompanying,  etc.,"  he  hardly  means  to  attribute 
to  a  past  age  the  sentiments  peculiar  to  the  present  one.  The  primitive 
Germans  did  not  "presume"  or  "impute"  an  unlawful  intent:  they 
simply  did  not  think  of  the  distinction  at  all.  To  feel  the  need  of  such 
an  element,  and  to  "impute"  or  "presume"  it,  marks  a  later  stage  of 
development. 

*  Brunner,  Ib.,  II,  558.  "The  penalty  of  unintentional  misdeeds  is 
parallelled  by  the  general  impunity  accorded  to  attempts."  Moreover, 
though  certain  acts  which  fell  short  of  causing  death,  and  yet  put  life 
in  peril  (as  pushing  into  the  water,  etc.)  were  treated  as  lesser  offences, 
somewhat  as  we  treat  attempts;  yet  "it  was  immaterial  whether  the 
result  was  caused  with  the  intention  of  killing,  or  with  some  other  de- 
sign, or  unintentionally"  (560). 


482  VII.     TORTS 


avenged  by  taking  the  prime  actor, l  and  where  several  co- 
operated equally,  a  lot  (frequently)  was  cast  to  select 
which  one  should  be  amenable ; 2  while  the  one  who  har- 
bored or  assisted  the  wrongdoer,  even  unwittingly,  was 
guilty,  because  he  had  associated  himself  with  one  tainted 
by  the  evil  result.3  Of  these  various  forms  of  the  primitive 
notion  which  determined  responsibility,  we  are  here  concerned 
with  only  a  few,  —  those  that  have  a  more  or  less  intimate 
connection  with  later  doctrines  of  the  English  law  of  torts, 
and  are  therefore  for  us  more  worth  tracing  from  early  times. 
These  may  be,  for  convenience,  grouped  into  four  classes, 
each  one  of  which  will  be  to  better  advantage  followed  out 
separately,  —  to  be  distinguished  according  as  the  harmful 
results  may  be  traced  back  to  (a)  a  personal  deed;  (b)  an 
animal;  (c)  an  inanimate  thing;  (d)  a  servant  or  slave. 
It  will  be  convenient  also  to  take  up  first  the  general  Ger- 
manic notion,  and  follow  it  down  to,  say,  the  Norman  Con- 
quest, and  then  to  keep  to  English  soil,  and  trace  down  the 
later  forms.  As  it  happens,  this  division  falls  in  fairly  with 
epochs  of  doctrinal  change.4 

•Brunner,  Ib.,  II,  565. 

8LL.  H.  I.  59,  25;  Brunner,  Ib.,  II,  468. 

8  Brunner,  Ib.,  II,  575.  "  From  the  jural  notion  that  the  misdeed  in 
itself  puts  a  man  beyond  the  law,  follows  fundamentally  the  penalty  on 
the  act  of  rendering  assistance.  .  .  .  [This  notion]  has  to  do  with'  the 
idea  that  the  helping  of  the  offender  is  a  mutiny  against  the  common 
weal,  or  it  springs  directly  from  the  principle  that  he  who  stands  out 
for  the  wrongdoer  takes  upon  himself,  as  against  the  community,  the 
wrongdoing  and  its  consequences." 

*  NOTE.  —  This  seems  the  best  place  to  say,  once  for  all,  that  the  en- 
suing first  part  of  the  essay  is  for  the  most  part  merely  a  condensation 
of  Prof.  Dr.  HEINRICH  BRUNNER'S  article  in  the  Proceedings  of  the 
Royal  Prussian  Academy  of  Sciences,  vol.  xxxv.,  July  10,  1890,  "  Ueber 
absichtslose  Missethat  im  altdeutschen  Strafrecht,"  afterwards  reprinted 
in  the  learned  author's  Forschungen  zur  Geschichte  des  deutschen  und 
franzoezischen  Rechts  (1894). 

As  to  the  sources  there  quoted,  this  part  is  in  effect  merely  a  repro- 
duction of  the  salient  ones,  the  citations  of  the  learned  author  are  left 
unchanged,  except  that  dates  and  authors'  initials  have  been  added  for 
identifying  the  modern  source-books  cited.  As  to  the  conclusions 
reached,  they  have  here  been  presented  in  a  somewhat  different  form 
and  arrangement,  with  a  view  to  tracing  subsequent  English  develop- 
ment; but  it  would  seem  that  Professor  Brunner  would  prefer  this,  for 
in  his  1892  volume  of  the  Deutsche  Rechtsgeschichte  he  has  chosen  an 
arrangement  more  nearly  resembling  the  present  one.  His  article  will 
here  be  cited  as  "  Br.,  Pr.  Ak. ; "  his  treatise,  as  "  Br.,  D.  Rg."  A  few 
gleanings  from  recent  volumes  of  the  Selden  Society,  from  Bracton,  etc., 


€6.     WIGMORE:  TORTIOUS  RESPONSIBILITY  483 

I 

We  have,  then,  to  deal  with  the  primitive  notion  which 
instinctively  visits  liability  on  the  visible  offending  source, 
whatever  it  be,  of  a  visible  evil  result.  The  notion,  as  ap- 
plied to  persons,  is  that  of  the  schcedliche  Mann,  a  person 
from  whom  some  evil  result  has  proceeded.  *  It  can  best 
be  illustrated  in  advance  by  two  instances,  one  drawn  from 
a  well-known  tale  in  the  Northern  mythology,  the  other 
from  mediaeval  Frisian  chronicles:  — 

"  Baldur  the  beautiful  was  beloved  by  all  the  gods,  and  Frigga 
had  exacted  an  oath  from  all  things  —  fire,  water,  stones,  trees, 
and  all  —  not  to  harm  Baldur ;  for  Baldur  had  dreamed  of  his 
own  death.  Then  the  gods,  his  safety  assured,  began  in  fun  to 
pelt  him  with  stones,  clubs,  and  battle-axes,  and  found  him  in- 
deed invulnerable.  But  Loki  the  jealous  was  vexed  because  Bal- 
dur was  not  hurt;  and  going  in  disguise  to  Frigga,  he  learned 
that  the  mistletoe  alone  had  not  been  sworn,  for  it  seemed  too 
feeble  a  plant  to  do  harm.  Then  Loki  went  up  to  Hodur,  the 
blind  god,  who  had  been  standing  apart,  for  he  had  nothing  to 
throw.  He  could  not  see  to  aim,  so  Loki  gave  him  the  mistletoe 
twig  and  guided  his  hand,  and  the  twig  flew,  and  struck  Baldur 
lifeless.  Then  the  other  gods  were  for  laying  strong  hands  on 
the  murderer ;  but  they  were  in  a  sacred  place.  And  Hodur  fled. 
And  Odin  said,  '  Now,  who  will  wreak  vengeance  on  Hodur,  and 
send  Baldur's  slayer  to  Hades  ?  '  The  avenger  was  Wali,  Bal- 
dur's  younger  brother,  who  washed  not  his  hands  and  combed 
not  his  hair  until  he  had  fulfilled  his  vengeance  and  smitten  to 
death  the  slayer  of  Baldur."2 

A  clearer  case  of  innocence,  one  would  think,  in  these 
days,  could  hardly  be  made  out;  but  not  so  by  the  tests 
of  our  ancestors.  —  Next,  an  example  showing  an  excep- 
tionally late  survival  of  these  ideas,  and  at  the  same  time 
the  transition  to  different  standards:  — 

have  been  added  by  the  present  writer,  so  as  to  bring  the  topics  in  this 
part  of  the  article  down  to  about  the  1200s  in  England. 

1  Br.,  D.  Rg.  II,  537;  2d  ed.  1906,  I,  §  21,  p.  211. 

2  In  Bugge,  Norrven  Fornkvaedi    (Christiania,  1867),  p.  212,  is   an- 
other instance,  from  the  Song  of  Sigurd,  the  slayer  of  the  dragon  Fafnir. 
Loki,  in  company  with  Odin  and  Honir,  had  seen  an  otter  and  killed 
it  with  a  stone;    for  it  had  been  carrying  off  the  pelts  belonging  to  the 
gods.    But  they  discovered  that  the  supposed  otter  was  none  other  than 
the  son  of  Hreidmar,  whe  had  put  on  the  form  of  an  otter;    and,  for 
the  compensation  they  were  obliged  to  give,  they  filled  the  otter-skin 
within  and  covered  it  without  with  gold,  and  gave  it  to  Hreidmar. 


484  VII-     TORTS 


"  Owen  Alwerk  was  brewing  beer.  During  his  absence  the 
child  of  Swein  Pons  came  in  and  stood  by  the  kettle.  The  kettle 
slipped  from  its  hook,  and  the  liquid  burned  the  child  so  that  it 
died  on  the  third  day.  The  relatives  of  the  child  pursued  Alwerk, 
who  fled  to  the  house  of  a  friend  for  refuge.  The  master  of  the 
house  opposed  the  entrance  of  the  pursuers,  and  an  affray  en- 
sued, in  which  the  master  by  inadvertence  killed  his  own  nephew. 
The  affair  was  laid  before  six  men  as  judges;  and  they  decided 
at  first  that  Alwerk  must  pay  the  head-money  for  the  dead  child 
and  for  the  dead  nephew,  and  must  besides  make  a  pilgrimage 
to  Rome.  But  Alwerk  opposed  the  judgment,  and  to  such  a  good 
purpose  that  they  altered  it  to  this  effect,  —  that  he  should  be 
absolved  without  more  from  the  child's  death,  and  from  the 
nephew's  if  he  swore  that  he  did  not  urge  on  the  master  of  the 
house  to  fight/' l 

With  these  preliminary  illustrations  of  the  attitude  of 
mind  we  are  dealing  with,  we  may  take  up,  in  the  order  of 
topics  already  named,  the  primitive  ideas  for  the  exposi- 
tion of  which  we  are  indebted  to  the  great  Brunner. 

a.  Harm  connected  with  a  Personal  Deed 

It  is  not  possible  to  draw  hard-and-fast  lines  in  tracing 
the  stages  of  development;  we  can  simply  note  that  there 
were  several  stages,  and  point  to  particular  rules  or  pas- 
sages as  illustrating  approximately  this  or  that  successive 
form. 

1.  Of  the  primitive  form  of  absolute  liability,  then,  we 
find  a  few  comparatively  late  traces ;  though,  as  Brunner 
points  out,  the  fact  of  the  necessity  for  an  express  men- 
tion of  a  prohibition  or  a  penalty  in  a  law  is  often  an 
indication  that  the  popular  regard  for  the  principle  in- 
volved is  on  the  wane: 

Lex  Bavariorum,  19,  6.  —  "Who  injures  the  corpse  of  a  man 
whom  another  has  killed,  either  by  cutting  off  the  head  or  the  ear 
or  the  foot,  or  by  otherwise  drawing  the  slightest  blood,  pays  a 
fine  of  twelve  shillings."  The  example  then  given  is  this:  The 
corpse  of  a  murdered  man  is  discovered  by  birds  of  prey,  who 
settle  upon  it  to  devour  it;  a  man  sights  them  and  draws  bow  at 
them,  but  strikes  the  corpse  so  that  it  is  wounded:  he  shall  pay 
the  fine. 

^.D.  1439,  Richthofen,  K.  v.,  Friesische  Rechtsquellen,  570;  1840. 


66.     WIGMORE:  TORTIOUS  RESPONSIBILITY  485 

Westgothic  Law.1  —  The  rule  of  Wamba :  "  Ut  quicumque  de- 
inceps  occiderit  hominem,  si  volens  aut  nolens  homicidium  per- 
petravit,  ...  in  potestate  parentum  vel  propinquorum  defuncti 
tradatur." 

Roger  of  Sicily's  Law  (1100-1 150). 2  —  "  Qui  .  .  .  lapidem  ad 
aliud  jecit  hominemque  occidit,  capitali  sententia  feriatur."  The 
notable  thing  is  that  the  first  part  of  the  law  is  a  copy  of  the 
Lex  Cornelia  de  sicariis;  but  liability  is  substituted  for  non- 
liability, and  the  above  is  added. 

Anglo-Saxon  Law. —  (1)  Beowulf  (Chronicles)  v.  2436  (ed. 
Heyne)  :  the  story  of  King  Hredel,  whose  second  son,  Haedcyn, 
unfortunately  killed  his  brother  by  an  arrow  which  went  wide  of 
the  mark.  The  death  of  the  slayer  was  required  in  expiation; 
and  the  king  so  mourned  at  the  untimely  loss  of  his  two  sons  that 
he  took  his  own  life.  (2)  LL.  Henry  I.  (so  called)  90,  11: 
"  Legis  enim  est,  qui  inscienter  peccat  scienter  emendet,  et  qui 
brecht  ungewealdes  [unintentionally]  bete  gewealdes,  .  .  . 
[e.g.]  si  alicujus  equus,  ab  aliquo  stimulatus  vel  subcaudatus, 
quamlibet  percuciat." 

It  may  be  noted  here  that  the  proceeding  of  attaint  was 
only  a  later  form  of  the  same  early  notion.  In  early  times 
it  was  a  general  custom,  where  adultery  or  the  like  was 
discovered,  to  slay  every  living  thing  within  the  house, 
whether  man  or  beast.3  The  legal  visitation  of  the  sins  of 
the  fathers  upon  the  children  was  one  of  the  latest  sur- 
vivals of  this  idea.4 

1  Walter,  Corpus  Juris  Germanici  Antiqui,  I,  668.  The  general  dates 
of  these  Germanic  codes  vary  from  400  to  900  A.  D.  circa.  The  large 
collections  usually  referred  to  for  the  texts  are  Monumenta  Germaniae 
Historiae,  Quarto  ed.,  1888+  (cited  M  H  G),  and  Schmid's  Gesetze  der 
Angelsachsen,  3d  ed.  1858,  now  superseded  by  Liebermann's  Die  Gesetze 
der  Angelsachsen,  1898-1906;  other  editions  and  source-books  will  be 
found  cited  in  Br.  D.  Rg.  I,  vii. 

2Merkel,  Commentatio,  1856,  p.  31,  fragm.  42. 

8J.  Grimm,  in  Zeitschrift  fuer  deutsches  Recht,  V,  17,  18. 

*  Westermarck,  Origin  of  Moral  Ideas,  c.  XX.  Bracton  says  (f. 
1056) :  "  Crimen  vel  poena  paterna  nullam  maculam  filio  infligere  po- 
test ; "  but  this  is  a  borrowed  humanity,  and  does  not  represent  the  actual 
law  of  his  time.  By  the  Golden  Bull  of  Charles  IV.  in  1356,  the  lives 
of  the  sons  of  such  as  conspire  to  kill  an  elector  of  the  Imperial  Crown 
are  spared  by  the  Emperor's  particular  bounty;  but  they  lose  all  rights 
of  succession  and  of  holding  office,  "to  the  end  that,  being  always  poor 
and  necessitous,  they  may  forever  be  accompanied  by  the  infamy  of 
their  father,  may  languish  in  continual  indigence,  and  may  find  their 
punishment  in  living  and  their  relief  in  dying."  In  Blackstone's  time 
this  corruption  of  blood  still  existed,  though  he  disparages  it;  but  the 
forfeiture  of  estates  he  defends  on  grounds  of  policy. 


486  VII.     TORTS 


J2.  As  times  change,  and  superstition  begins  to  fade,  the 
notion  of  "  misadventure,"  "  ungefaehr,"  is  hazily  evolved, 
and  facts  of  the  sort  are  regarded  as  ground  for  an  appeal 
to  the  king  or  the  lord  on  the  offender's  behalf.  The  strict 
law  is  thus  regarded  as  requiring  his  punishment;  but  no 
vengeance  can  be  wreaked  upon  him,  no  blood-feud  started 
by  the  members  of  the  victim's  family : 


Holland.  —  In  1425  Aelwyn,  a  citizen  of  Delft,  had  "  by 
ongevalle  ende  onwetende  " 1  killed  another.  The  case  went  to  the 
lord,  Philip  of  Burgundy,  who  granted  a  pardon:  "  We  hold  the 
said  Aelwyn  quit  and  forgiven  by  this  letter  of  all  wrong  and 
misdoing  which  he  has  done  against  us  and  our  lordship,  and  we 
give  him  again  his  life  and  goods,  which  he  thereby  should  have 
forfeited  to  us."  2 

France.  —  ( 1 )  Coutumes  de  Clermont  en  Beauvoisis? 
(1200  +  )  :3 

"  In  case  of  accidents  happening  by  mischance,  in  such  cases 
piles  el  misericorde  ought  rather  obtain  instead  of  stern  justice." 
When  a  man  in  turning  his  wagon  injures  another,  "it  is  a  case 
of  mischance,  and  the  wagoner  should  be  shown  mercy,  if  it  does 
not  appear  that  he  managed  it  with  a  malicious  purpose  of  in- 
juring the  other."  If  one  is  separating  two  quarrellers,  and  acci- 
dentally injures  the  one  who  is  his  friend,  "  let  mercy  be  shown 
him."  (2)  Somme  Rurale:*'  Under  the  head  "  d'occire  autre  par 
cas  d'aventure,"  all  such  cases  are  said  to  fall  under  the  penalty 
of  death,  and  to  need  remission  by  the  prince. 

England. —  (1)  Anglo-Saxon  laws,  quoted  post.  (2)  Brae- 
ton,  De  Legibus :  "  Crimen  homicidii,  sive  sit  casuale  vel  volun- 
tarium,  licet  eandem  poenam  non  contineant,  quia  in  uno  casu 
rigor,  in  alio  misericordia  "  (f.  104  b;  also  141  6).  (3)  Slat. 
Gloucester  (6  Ed.  I.,  1278)  c.  Q:  If  one  kills  another  in  defending 
himself  or  by  misadventure,  he  shall  be  held  liable,  but  the  judge 
shall  inform  the  king,  "  et  le  roy  lui  en  fra  sa  grace,  s'il  lui 
plaist."  (4)  Fleta*  repeats  the  rule  of  the  statute.  (5)  Early 
cases  in  the  King's  Court:  (1214)  "Roger  of  Stainton  was  ar- 
rested because  in  throwing  a  stone  he  by  misadventure  killed  a 
girl.  And  it  is  testified  that  this  was  not  by  felony.  And  this 
was  shown  to  the  king,  and  the  king,  moved  by  pity,  pardoned 

1 "  By  accident  and  unwittingly." 

2  Van  Mieris,  Groot  CharteTbuch  van  Holland,  4,  800. 

8Beaumanoir  (ed.  Beugnot,  1847,  Salmon,  1899),  c.  69. 

4Bouteiller  (pub.  1537),  ii.  40. 

•I,  23,  15. 


66.     WIGMORE:   TORTIOUS  RESPONSIBILITY  487 

him  the  death.  So  let  him  be  set  free."  i  (1225)  "  Mabel,  Der- 
win's  daughter,  was  playing  with  a  stone  at  Yeovil,  and  the  stone 
fell  on  the  head  of  Walter  Critels,  but  he  had  no  harm  from  the 
blow;  and  a  month  after  this  he  died  of  an  infirmity,  and  she 
fled  to  church  for  fear,  but  [the  jurors]  say  positively  that  he 
did  not  die  of  the  blow.  Therefore  let  her  be  in  custody  until 
the  king  be  consulted."  2 

It  is  to  be  noted  that  a  killing  done  in  self-defence  was 
regarded  as  one  of  those  which  required  to  be  pardoned  in 
this  way  by  the  king;  and  this  notion  long  left  its  impress 
on  English  criminal  law:  3 

Early  Cases. —  (1221)  "  Howel,  the  Markman,  a  wandering 
robber,  and  his  fellows  assaulted  a  carter  and  would  have  robbed 
him;  but  the  carter  slew  Howel,  and  defended  himself  against 
the  others  and  escaped  them.  And  whereas  it  is  testified  that 
Howel  was  a  robber,  let  the  carter  be  quit  thereof.  And  note 
that  he  is  in  the  parts  of  Jerusalem,  but  let  him  come  back  in 
security,  quit  as  to  that  death."  4  Note  that  there  is  here  no 
resort  to  the  king's  pardon,  yet  the  carter  had  thought  it  wise  to 
seek  safety  by  absconding. —  (1203)  "  Robert  of  Herthale,  ar- 
rested for  having  in  self-defence  slain  Roger,  Swein's  son,  who 
had  slain  five  men  in  a  fit  of  madness,  is  committed  to  the  sheriff 
that  he  may  be  in  custody  as  before,  for  the  king  must  be  con- 
sulted about  this  matter."5 

Leiden  Society,  vol.  I.  Pleas  of  the  Crown,  I,  No.  114. 

»Ib.,  No.  188.  See  also  Bracton,  Note-Book,  III,  157,  No.  1137  (A.D. 
1235-36),  where  "nescitur  adhuc  utrum  ipsum  interfecit  per  infortunmm 
vel  alio  modo,"  and  so  the  defendant  is  allowed  to  abjure  the  kingdom. 

Bracton,  in  De  Legibus,  as  above,  shows  the  rule.  But  other  pas- 
sages there  occur  which  are  quite  inconsistent  with  this,  and  would  even 
do  well  enough  as  a  rough  statement  of  to-day's  law.  Of  homicide  by 
chance,  he  says,  "  as  where  a  person  has  thrown  a  stone  at  a  bird  or  an 
animal,  and  another  person,  passing  unexpectedly  by,  is  struck  and  dies, 
.  .  .  here  it  is  to  be  distinguished  whether  the  person  was  engaged  in 
a  lawful  or  in  an  unlawful  affair.  ...  If  he  was  engaged  in  a  lawful 
affair,  ...  if  he  used  such  care  as  he  could,  ...  it  is  not  laid  to  his 
account"  (1206).  Again,  he  uses  the  old  Roman  example  of  throwing 
a  ball  at  play  and  hitting  a  razor  in  the  hands  of  a  barber  while  shaving 
(1366).  The  explanation  is  simple:  he  is  here  copying  and  adapting 
from  the  Roman  and  civil  law,  — in  the  latter  case  from  Dig.  48,  8,  14 
(as  Brunner  points  out);  in  the  former  from  Gregory's  Decretal  (V, 
tit.  xii.;  1234  A.D.)  "  de  homicidio  voluntario  vel  casuali"  (as  Twiss 
points  out,  Preface,  II.  lix.). 

8Blackstone,  Comm.  iv.  182-188. 

4  Selden  Society,  vol.  I,  Pleas  of  the  Crown,  I,  No.  145. 

"Selden  Society,  ibid,  No.  70.  So  also  Bracton,  De  Legibus,  1446, 
mentioning  a  case  of  a  pardon  to  a  man  who  defended  himself  against  a 
burglar  in  his  own  house  (A.D.  1234);  Bracton,  Note-Book,  III,  229, 


488  VII.     TORTS 


3.  But  still,  in  the  earlier  days,  the  malfeasor  by  misad- 
venture must  at  least  pay  a  fine,  though  released  from  the 
penalty  of  death,  and,  later  on,  when  the  blood-feud  had 
disappeared  and  a  fixed,  payment  was  the  regular  form  of 
civil  liability,  he  must  pay  a  portion  of  the  ordinary  amount : 

Holland.  —  In  1438  Philip  of  Burgundy  pardons  by  special 
grace  the  members  of  a  guild  in  Leyden  who  have  killed  some 
one  by  misadventure,  remitting  the  forfeiture  of  life  and  goods, 
but  saving  the  expiation-money  due  the  dead  man's  kindred.1 

Franks.  —  Capitulary  of  Charlemagne,  819  A.  D.,  with  instruc- 
tions to  the  missi,  or  itinerant  officials:  As  for  a  person  held  to 
answer,  "  let  this  be  the  treatment,  that  if  one  has  offended  ig- 
norantly,  let  him  not  be  obliged  to  pay  according  to  the  full  rule,, 
but  as  near  as  seems  possible."  2 

England.  —  LL.  Henry  I.  (so-called),  90,  11:  After  the 
maxim  above  cited,  "  qui  inscienter  peccat  scienter  emendet,"  and 
the  illustrations  of  misadventure,  "  In  these  and  like  cases,  where 
a  man  intends  one  thing,  and  another  eventuates,  i.  e.,  when  the 
result,  not  the  intention,  is  charged  as  blamable,  let  the  judge 
fix  a  small  fine  and  fee,  inasmuch  as  it  really  occurred  by  acci- 
dent." 3 

No.  1216  (A.  D.  1236-37),  where  the  jury  found  a  killing  in  self-defence, 
and  "  dominus  rex  de  gracia  sua,  non  per  judicium,  perdonavit  ei  mortem 
illam"  (1236);  also  Bracton,  N.  B.  Ill,  107,  No.  1084  (A.  D.  1225). 
These  were  before  the  Statute  of  Gloucester  (1278),  cited  above.  So 
also  the  following  case:  Gross,  Select  Cases  from  the  Coroner's  Rolls 
A.D.  1265-1413,  p.  102  (Selden  Society,  vol.  IX;  1895). 

1  Mieris,  Handvoeren,  etc.  der  Stad  Leyden,  289. 

2Boretius,  Capitularia,  I,  290  (M  H  G,  Sectio  II),  Cap.  Missorum^ 
ch.  1*. 

*  In  old  Swedish  law  accidental  killing  is  not  to  be  punished  unless 
both  parties  (».  e^  the  deceased's  relatives,  practically)  wish  it  (v.  Amira, 
Altschwedisches  Obligationenrecht,  382,  1882).  So  in  old  Japan  the 
custom  is  recorded  (Simmons  and  Wigmore,  Notes  on  Land  Tenure, 
etc.,  Transactions  of  the  Asiatic  Society  of  Japan,  1891,  vol.  XIX,  p.- 
121)  that  the  judge  may  pardon  if  the  deceased's  family  withdraw  their 
charge  against  a  murderer;  an  application  of  the  rule  mentioned  in 
Rudorff's  Tokugawa  Gesetzsammlung,  (cited  supra,  p.  478),  Art.  35  of 
the  Reigaki,  giving  a  case  of  1744,  and  Art.  46  of  the  Hundred  Laws 
of  lyeyasu,  a  century  earlier ;  note  there  the  idea  of  expiation,  in  that  the 
guilty  man  then  becomes  a  priest:  S.  &  W.  supra.  This  is  probably  the 
transition-form  preceding  the  above  stage;  first,  the  family  agree  to 
compound  for  less  money,  and  then  the  judge  compels  them  to.  A 
curious  example  of  this  phase  is  seen  in  the  LL.  Henry  I.:  where  a  man 
falls  from  a  tree  and  kills  another  below,  he  shall  be  held  innocent;  yet 
the  blood-feud  will  be  allowed  if  insisted  upon,  but  it  may  be  carried 
out  in  one  way  only,  —  the  avenger  may  himself  mount  the  tree,  and  in 
turn  fall  upon  the  slayer.  This  is  recorded  also  in  Holland  (Brieler 
Rechtsbuch,  Matthi j  ssen,  212;  pub.  in  Oude  Vaderlandsche  Rechtsbron- 


66.     W IGNORE:   TORTIOUS   RESPONSIBILITY   489 

4.  Moreover,  probably  at  a  somewhat  later  stage,  as  the 
notion  of  complete  exculpation  (in  a  criminal  process)  grows, 
the  malfeasor  must,  immediately  after  the  occurrence,  give 
notice  of  it,  and  swear  an  extra-processual  exculpatory  oath 
as  to  its  occurring  by  accident  or  in  self-defence;  other- 
wise, he  loses  the  benefit  of  the  plea  if  suit  is  brought : 

Franks.  —  Lex  Ripuaria,  77 :  When  a  man  slays  a  malefactor, 
flagrante  delicto,  who  has  resisted  capture,  he  must  make  oath 
with  eleven  helpers  that  he  slew  the  other  as  an  outlaw;  if  he 
does  not,  "  homicidii  culpabilis  judicetur."  Then  afterwards  he 
must  come  to  his  trial  within  forty  nights,  and  make  oath  with 
thirty-six  law-men. 

Sweden.  —  The  wrongdoer  by  misadventure,  without  waiting 
for  suit,  must  offer  an  oath  and  render  satisfaction  for  the  deed.1 

Holland.  —  The  oath  of  exculpation  for  the  death  of  a  servant 
declared  that  it  happened  "  by  his  self's  fault  and  by  misadven- 
ture, and  without  deed  of  his."  2 

In  the  thirteenth  century,  then,  in  England  we  find  the 
primitive  notion  still  living,  for  harm  caused  uninten- 
tionally; in  cases  of  homicide,  at  least,  the  slayer  forfeited 
goods  and  paid  some  fine  or  fee  to  the  king  in  a  criminal 
process,  and  in  probably  all  torts  the  harmdoer  paid  some 
compensation  to  the  injured  party.3 

We  leave  this  topic  at  that  stage,  and  turn  to  — 

b.  Harm  connected  with  Animals 

The  successive  phases  of  development  are  nearly  akin  to 
those  already  considered.  4 

nen,  1880,  1st  ser.  vol.  I),  and  in  a  Hindu  popular  tale  (Kohler,  Shake- 
speare in  dem  Forum  der  Jurisprudenz,  93;  1883). 

*v.  Amira,  Altschwedisches  Obligationenrecht,  379. 

2Brieler  Rechtsbuch,  Matthijssen,  210.  So  also,  in  maritime  law,  for 
a  death  on  shipboard:  Fruin,  De  oudste  Rechten  der  Stad  Dordrecht 
(1882),  ii.  52,  No.  70;  i.  235,  No.  79  (Oude  Vaderlandsche  Rechtsbron- 
nen,  1882,  1st  ser.  vol.  IV) ;  and  R.  Wagner,  Handbuch  des  Seerechts, 
1884,  I,  399. 

8 For  some  cases  of  "misadventure"  not  particularly  significant,  see 
Selden  Society,  Pleas  of  the  Crown,  I,  Nos.  81,  132,  156,  203  and  Seld. 
Soc.  vol.  IX,  Gross'  Select  Cases  from  the  Coroner's  Rolls,  pp.  24,  38. 
The  general  principle  is  noted  in  Bateson's  Borough  Customs,  1906,  II, 
Introd.  p.  40  (Selden  Society,  vol.  XXI). 

*For  the  corresponding  phases  in  the  noxal  action  of  Roman  law, 
see  the  following  special  articles  besides  the  usual  treatises:  P.  F.  Girard, 


490  P/L     TORTS 


1.  Of  the  primitive  idea  of  full  liability  for  harm  caused 
by  one's  animals,  there  are  a  few  traces: 

Sachsenspiegel  *  speaks  of  complete  liability  being  the  ancient 
rule,  "  quantum  si  f  acinus  in  persona  propria  commisisset." 

2.  In  the  next  phase,  the  injured  party  is  found  without 
the  privilege  of  carrying  out  the  blood-feud;    this  recogni- 
tion of  the  unintentional  nature  of  the  deed  seems  to  have 
come  earlier  here  than  in  any  other  class  of  cases.     But 
the  owner  is  still  answerable  for  the  wergeld  or  the  composite 
appropriate  to  the  harm  done,  —  by  most  laws  for  the  full 
sum,  by  others  for  an  aliquot  part;    and  in  many  cases  the 
value  of  the  mischievous  animal,  if  surrendered,  can  be  used 
in  reduction  of  this  sum : 

The  full  sums  were  required  by  the  early  Lombards,2  the 
Anglo- Werini,3  and  the  Saxons ;  4  the  Alamanni  5  required  it  for 
inj  uries  by  horses,  oxen,  swine,  but  one  half  only  if  by  others ;  the 
Frisians  6  required  one  quarter  only.  The  Salians  (early  pe- 
riod) 7  and  the  Ripuarians  8  required  the  whole,  but  allowed  the 
animal  to  go  for  one  half.  The  later  Lombards  required  one 
half. 9  These  rules  may  be  traced  in  much  later  records  of  those 
regions.10 

3.  The  next  step  is  to  absolve  the  owner  entirely,  if  he 
divests  himself  of  all  relation  with  the  accursed  thing  by 
putting  it  from  him  entirely ;    and  this  would  take  place, 
(1)    in  the  beginning,  by  handing  it  over  to  the  injured 

quoted  ante,  p.  480 ;  H.  Isay,  Die  Verantwortlichkeit  des  Eigenthuemers 
fuer  seine  Thiere,  in  Ibex-ing's  Jahrbuch,  1898,  XXXIX,  209-322  (an 
exhaustive  study). 

1Landrecht,  ii.  62,  Sunesen,  55. 

2  Rothar,  326-8,  330. 

3  Lex  Ang.-W.,  52. 

4  Lex  Sax.,  57. 
6Pactus  Alam.,  iii.  17. 

6  Lex  Fris.  Add.,  3,  68. 

7  Lex  Salica,  36. 

8  Lex  Rip.  46. 

9  See  note  1. 

10  EtabliSsemens  de  St.  Louis,  i.  125;  Warnkonig,  Flandrische  Rechts- 
gesch.,  ii.  2.  226  (1265).  In  Pact.  Alam.,  where  a  dog  bit  to  death,  the 
half  wergeld  was  allowed;  yet  the  avenger  might  demand  the  whole,  on 
condition  that  he  should  suffer  the  dog's  dead  body  to  hang  in  his 
doorway  till  it  rotted  away  (iii.  16). 


66.     WIGMORE:   TORTIOUS  RESPONSIBILITY  491 

party  for  the  infliction  of  vengeance  (or,  as  above,  in  time, 
as  in  some  sort  a  compensation  or  perquisite),  and  (2), 
later,  by  merely  turning  the  animal  loose : 

(1)  Lex  Fisigothorum.1  — The  animal  is  delivered  "  ut  eum 
occidat." 

Laws  of  Alfred.2  —  (871-901)  "  If  a  neat  wound  a  man,  let 
the  neat  be  delivered  up  or  compounded  for." 

Fitzherbert.3  —  (1333)  "  If  my  dog  kills  your  sheep,  and  I, 
freshly  after  the  fact,  tender  you  the  dog,  you  are  without  re- 
covery against  me." 

(2)  Flanders.*  —  (1241,  1264)      The  owner  is  not  liable  if 
he  "  expellet  et  abneget  "  the  animal. 

Poitou. 5  —  The  owner  is  freed  if  he  "  desavouer  "  the  animal; 
and  he  is  bound  if  he  takes  it  back  again. 

Norway.  6"  —  The  owner  is  free  if  he  "von  der  hand  sagen  " 
the  horse,  swine,  ox,  or  dog ;  otherwise  he  is  liable  as  if  the  mur- 
derer. 

The  owner  would  thus  not  be  liable  if  the  animal  had 
escaped;  for  he  is  no  longer  connected  with  it,  he  is  ab- 
solved : 

Twisden,  J.:1  "  If  one  hath  kept  a  tame  fox,  which  gets  loose 
and  grows  wild,  he  that  hath  kept  him  before  shall  not  answer 
for  the  damage  the  fox  doth  after  he  hath  lost  him,  and  he  hath 
resumed  his  wild  nature :  "  this  may  be  a  trace  of  the  early 
notion.8 

Moreover,  the  notion  that  the  owner  is  liable  if  be  har- 
bors or  takes  the  animal  back  after  repudiation,9  became, 
when  rationalized  as  time  went  on,  one  of  the  sources  (ap- 
parently) of  the  scienter  rule  in  English  law. 

It  must  be  added  that  the  feature  of  delivering  to  the  op- 
posite party  for  his  purpose  of  wreaking  private  vengeance 

*Lex  Visig.,  8,  4,  c.  20.    Accord,  Schwabenspiegel  (Lassberg),  204. 
8C.  24. 

•Abridgment,  Barre,  290. 

•Warnkonig,  Flandrische  Rechtsgeschichte,  ii.  2,  No.  222;  iii.  No.  166. 
6Livre  des  droiz  et  des  commandemens,  c.  871. 
•Brandt,  Forlaesninger  over  den  Norske  Retshistorie,  ii.  46. 
'Mitchel  v.  Alestree,  1  Vent.  295  (1676). 

8  For  further  traces  in  later  times,  see  Holmes  in  The  Common  Law, 
22  and  ante,  in  Essay  No.  63. 
•Poitou,  supra. 


492  VII.     TORTS 


was  largely  supplanted  by  the  idea  of  forfeiture  to  the  au- 
thorities for  public  punishment:  sometimes  the  animal  was 
outlawed,  and  could  be  killed  by  any  one ; 1  later  it  was  for- 
feited to  the  lord  or  to  the  church.2  Sometimes  it  was  tried 
for  its  offence,  and  the  theories  and  methods  of  trying  and 
punishing  animals  form  a  long  and  interesting  sidepath 
from  the  present  subject.3 

4.  Along  with  all  this  we  find  in  various  regions  in  later 
times  the  requirement  of  an  exculpatory  oath  as  a  pre- 
liminary to  allowing  the  owner  to  free  himself  by  giving 
up  the  animal.  The  oath  perhaps  at  first  declares  merely 
that  the  owner  was  not  privy  to  the  wrong;  but  later  it 
is  that  the  owner  was  not  aware  of  the  animal's  vice : 


Lex  Salica.*  —  "  Per  lege  [oath]  se  defendere  potest,  ut  nihil 
pro  ipso  pecore  solvat." 

Livre  des  ~Droiz,  etc.5  —  "  Celui  a  qui  le  beste  sera  est  term  de 
amender  le  dommage  au  blecie;  et  si  ne  fera  amende  a  justice, 
par  quoy  il  ose  jurer  qu'il  ne  sceust  la  teiche  de  la  beste  [that  he 
did  not  know  the  vice  of  the  animal]." 

Flanders  (1241).  • —  The  owner  is  not  liable  unless  the  animal 
has  for  at  least  two  days  shown  "  manifestae  noxae." 


From  this  basis  (and  perhaps  that  just  mentioned)  the 
later  doctrines  as  to  animals  ferae  et  mansuetae  naturae, 
and  as  to  a  scienter  of  the  tame  animal's  viciousness  in  cases 
of  violent  injuries,  would  easily  work  out. 

1  Bouteiller,  Somme  Rurale,  i.  38;  Magk   (Norway),  in  Paul's  Grun- 
driss   der   germanischen   Philologie,   ii.    1,    120;   Andreae,   Stadregt   van 
Vollenhove,  i.  316.     But  the  sentiment  which  ultimately  grew  up  may 
be  early  seen  in  scattered  passages :  "  Car  bestes  mues  n'ont  nul  entende- 
ment,  qu'est  biens  ne  quest  maus"    (Beaumanoir,  Coutumes  de  Beau- 
voisis,  6,  16). 

2  Etablissemens   de  St.  Louis,  i.   125;  Coutumes  de  Touraine-Anjou, 
114;  Livre  des  droiz,  etc.,  119;  Bouteiller,  Somme  Rurale,  i.  37. 

3  K.  v.  Amira,  Thierstrafen  und  Thierprocesse  (1892)  ;  E.  P.  Evans, 
The  Criminal  Prosecution  and  Capital  Punishment  of  Animals   (1907); 
Westermarck,  Origin  etc.  (cited  ante,  p.  476),  pp.  254-260. 

4C.  36  (later  texts). 

BC.  114;  Etablissemens  de  St.  Louis,  i.  125;  Bouteiller,  Somme  Rurale, 
i.  38  (where  the  owner  had  been  warned  by  the  local  authorities). 
6  Ubi  supra,  par.  3. 


66.     WIGMORE:   TORTIOUS  RESPONSIBILITY  493 

c.    Harm  connected  with  Inanimate  Things 

Here  we  may  trace,  mutatis  mutandis,  stages  of  develop- 
ment substantially  analogous  to  those  found  in  the  pre- 
ceding class  of  cases. 

1.  Of  the  most  primitive  form,  subjection  to  the  blood- 
feud  for  injuries  caused  by  things  belonging  to  a  person, 
and   without   the   owner's    personal   use   of   them,   there   are 
only  a  few  traces,  for  the  change  came  early: 

In  the  early  times,1  when  rape  or  adultery  was  committed  in  a 
house,  its  inmates  were  killed,  and  the  house  (of  commission  or 
of  refuge)  was  destroyed. 

2.  This   passes   into   a  mere   pecuniary   liability,   accom- 
panied sometimes  by  the  duty  of  handing  over  the  injuring 
thing,   sometimes   by   the   privilege   of   using   its   surrender 
to  reduce  the  amount  of  the  payment : 

LL.  Henry  I?  —  A  fine  was  imposed  "  si  alicuius  arma  peri- 
mant  aliquem  ibidem  posita  ab  eo  cuius  erant." 

Schleswig.3  —  If  one  is  building  a  house,  and  a  beam  falls  and 
kills  a  man,  the  beam  is  to  be  given  over  to  the  dead  man's  heirs 
(or,  by  later  law,  merely  thrown  away) ,  and  the  owner  also  pays 
them  9  marks. 

3.  The   notion   of   complete  exculpation   by   a   surrender 
or  repudiation  of  the  offending  thing,  or  by  an  abstention 
from  using  it  again,  very  early  makes  its  appearance: 

Lex  Ripuaria.*  —  "  Si  quis  homo  a  ligno  seu  a  quolibet  manu- 
factile  interfectus,  non  solvatur,5  ni  forte  quis6  auctorem  inter- 
fectionis  in  usus  proprios  adsumperit;  tune  absque  frido  culpa- 
bilis  judicetur." 

Schleswig.  —  In  the  case  above,  if  the  beam  is  built  in  after  all, 
the  whole  house  is  forfeited. 

1J.   Grimm,  in   Zeitschrift   fuer  deutsches   Recht,  v.   17-18;   Wester- 
marck,  Origin,  etc.  (cited  ante,  p.  476),  p.  262. 
2C.  90,  11. 

"Thorsen,  De  Stadsretter  for  Slesvig,  etc.  (1855),  19,  49,  75,  192. 
*C.  70,  1.    This  is  found  in  almost  the  same  words  in  LL.  Henry  I., 
90,  6. 

No  payment  need  be  made. 

Observe  that  any  one  who  uses  them  is  liable. 


494  VII.     TORTS 


Norway*  —  A  traveller  speaks  of  seeing  sickles,  axes,  and  the 
like,  with  which  men  have  been  killed,  lying  about  abandoned  and 
unused. 

LL.  Henry  I.2  —  The  owner  of  weapons  used  by  another  to 
do  harm  must  not  take  them  into  his  hands  again  till  they 
are  "  in  omni  calumpnia  munda." 

The  notions  with  regard  to  the  forfeiture  of  such  noxal 
things  passed  through  phases  similar  to  those  respecting 
animals ;  and  the  "  deodand  "  is  one  of  the  traces  in  later 
law.3 

4.  In  some  cases  the  feature  reappears   (along  with  the 
principle  of  exculpation   by   surrender   or   repudiation)    of 
a  preliminary  exculpatory  oath: 

LL.  Henry  /.*  —  Where  a  man  puts  down  his  arms  some- 
where, and  another  takes  them  and  does  harm  with  them,  or 
where  he  has  left  them  with  a  polisher  or  a  repairer,  and  the 
like  happens,  the  owner  must  free  himself  by  oath. 

5.  Finally,   but   coming   at   different   times   with   respect 
to  different  classes  of  things,  we  find  something  approach- 
ing  a   rationalization    of   the   rules.      In   some   clear    cases 
there   is   an   absolute   exculpation,   without   more   said;     in 
others,  there  is  a  foreshadowing  of  a  test  of  due  care  or 
the  like: 

Lex  Burgundiorum*  —  It  is  found  necessary  to  say  that  if 
a  lance  or  other  weapon  is  stuck  in  the  earth,  and  a  man  or 
animal  chances  to  trip  on  it,  the  owner  need  not  pay. 

1Liebrecht,  Zur  Volkskunde  (1879),  313. 

JC.   87,   2. 

8  Holmes,  Common  Law,  25,  citing,  among  other  cases,  "If  my  horse 
strikes  a  man,  and  afterwards  I  sell  my  horse,  and  after  that  the  man 
dies,  the  horse  shall  be  forfeited"  (Plowden,  260).  A  number  of  in- 
stances will  be  found  in  Gross'  Select  Cases  from  the  Coroners'  Rolls 
A.D.  1265-1413  (Selden  Soc.  Pub.,  vol.  IX;  1895),  pp.  8,  15,  40,  50,  54, 
59,  68,  77,  82,  92,  94,  95,  96,  99,  105,  106,  121,  122,  125;  Bateson's  Borough 
Custumals,  I,  17  (Selden  Soc.  Pub.  vol.  XVIII,  1904).  For  Roman  law, 
see  Girard's  article  cited  on  p.  480,  ante.  Every  one  is  familiar  with  the 
fossil  remains  of  the  deodand  in  the  clause  of  the  criminal  indictment 
stating  the  value  of  the  weapon  with  which  a  murder  was  done. 

4  C.  87,  2. 

8  C.  18,  2,  and  see  LL.  Henry  I.,  90,  passim. 


66.     WIGMORE:   TORTIOUS   RESPONSIBILITY  495 

Lex  Saxonum.1  —  Payment  must  be  made,  where  injuries 
occur  from  ditches  or  traps,  "  a  quo  parata  sunt." 

Lex  Anglo-Werinorum.2  —  "  Qui  machinamentum  fecit,  damp- 
num  emendet." 

LL.  Alfred.3  —  Where  a  man  is  injured  by  a  spear  in  an- 
other's hand,  he  is  liable  "  if  the  point  be  three  fingers  higher 
than  the  hindmost  part  of  the  shaft;  if  they  both  be  on  a 
level,  ...  be  that  without  danger." 

Sweden.4  —  At  first  the  owner,  but  afterwards  the  user,  of 
the  noxal  instrument  must  respond. 

France.5 — When  a  man  is  killed  during  the  erection  of  a 
house,  neither  the  structure  nor  the  master  shall  bear  any 
liability,  if  a  warning  notice  had  been  given.6 


d.    Harm  connected  with  a  Servant 

1.  There  was  certainly  a  time  when  the  master  bore  full 
responsibility  for  the  harmful  acts  of  his  serf  or  his  domes- 
tic. It  is  worth  while  to  emphasize  this  by  quoting  pas- 
sages from  Professor  Brunner's  chapter  on  "  territorial  lord- 
ship," 7  his  name  for  "  the  sum  of  the  rights  exercised  by 
the  lord  over  the  tenants :  " 

"  As  regards  the  origin  of  territorial  lordship,  we  have  to 
distinguish  in  the  Prankish  empire  a  lordship  by  Germanic 
law  and  one  by  Roman  law.  The  starting-point  of  the  former 
is  the  responsibility  of  the  lord  for  his  people.  According 
to  Germanic  law,  as  above  remarked,  the  house-master  was 
responsible  to  third  persons  for  those  attached  to  his  house. 
This  responsibility  extended  not  merely  to  bondsmen,  but  also 
to  half-free  and  free  persons.  If  a  free  but  landless  man  re- 
mained for  some  time  in  the  house  of  another,  he  acquired  a 
relation  of  dependency  which  established  the  responsibility  of 

*C.  58.  Cf.  also  Lex  Rip.  70,  2:  "Si  quis  autem  fossam  vel  puteum 
fecerit,  seu  pedicam  vel  balistam  incaute  posuerit.  culpabilis  judice- 

tur." 

8C.  61. 

SC.  36. 

4v.  Amira,  Nordgermanisches  Obligationenrecht,  i.  286. 

6Bouteiller,  Somme  Rurale,  i.  39. 

6  But  as  late  as  1466  a  counsel  thus  argued  in  England:  "If  I  am 
building  a  house,  and  when  the  timber  is  being  put  up  a  piece  of  timber 
falls  on  my  neighbor's  house  and  breaks  his  house,  he  shall  have  a  good 
action,  etc. ;  and  yet  the  raising  of  the  house  was  lawful,  and  the  timber 
fell,  me  invito,  etc."  (Fairfax,  in  the  Thorn-cutting  case,  Y.  B.  6  Edw. 
IV.  7,  pi.  18). 

'Deutsche  Rechtsgeschichte  (1892),  II,  §  93;  see  also  I   71,  98. 


496  VII.     TORTS 


the  house-master.  .  .  .  The  liability  of  the  master  extended 
not  merely  over  bondsmen  living  in  the  house,  but  over  those 
settled  on  the  land,  and  even  over  those  elsewhere,  so  long 
as  the  master  kept  his  ownership  and  no  third  person  became 
responsible  by  receiving  the  man.  .  .  .  The  responsibility  of 
the  master  for  free  persons  extended  at  least  to  those  living 
in  his  house,  followers  and  vassals  not  excepted.  How  far 
it  extended  without  the  circle  of  actual  members  of  the  house- 
hold is  doubtful.  .  .  .  For  misdeeds  of  the  bondsman  the  master 
originally  bore  full  responsibility  towards  third  persons.  He 
had,  as  the  party  to  the  suit,  to  represent  him  and  to  render 
satisfaction  for  him.  .  .  .  The  responsibility  for  free  persons 
shows  itself  in  the  form  of  a  duty  upon  the  master  to  answer 
for  the  freeman's  misdeeds."  1 

Q.  This  responsibility  disappeared  in  the  case  of  free- 
men, as  time  went  on,  so  that  the  master  could  relieve  him- 
self by  handing  them  over  to  the  regular  courts;  and 
this  apparently  worked  a  complete  discharge.  But  in  the 
case  of  serfs  and  domestics,  the  effect  of  a  surrender  was 
at  first  merely  to  relieve  from  the  blood-feud  and  from  the 
payment  of  peace-money;  it  put  the  situation  on  the  foot- 
ing of  a  "  misadventure,"  as  then  conceived,  i.  e.t  it  left 
the  master  liable  to  pay  compensation-money: 

Kent  Laws.  —  "If  any  one's  slave  slay  a  freeman,  whoever 
it  be,  let  the  owner  pay  with  a  hundred  shillings,  give  up  the 
slayer,  etc." 

Lea;  Anglo-Werinorum.* — "  Omne  damnum  quod  servus  fecit 
dominus  emendet." 

3.  Then  comes  the  usual  step  of  allowing  the  value  of 
tbe  surrendered  slave  to  be  set  off,  and  finally  of  complete 
exoneration  by  surrender  of  the  slave;    at  first  to  the  in- 
further  authorities  on  this  primitive  general  notion  are  given  in: 
Westermarck,   Origin,  etc.    (cited   ante,  p.  476),  pp.  30,  44,  60-70;   G. 
Meyer,  Zeitschrift  der  Savigny-Stiftung  fuer  Rechtsgeschichte,  1881,  II 
(Germ.   Abth.),  pp.   83,   90,   "Die   Gerichtsbarkeit   ueber   Unfreie   und 
Hintersassen  nach  aeltestem  Recht";   P.   Leseur,  Nouvelle   Revue  his- 
torique  du  droit  fran9ais  et  etranger,  1888,  XII,  pp.  576,  657,  "  Des  con- 
se'quences  du  de"lit  de  1'esclave  dans  les  Leges  Barbarorum  et  dans  les 
capitulaires " ;   Jastrow;   Zur   Strafrechtliche   Stellung   der   Sklaven   bei 
Deutschen  und  Angelsachsen,  1878,  passim   (No.  2  in  Gierke's  Unter- 
suchungen  zur  deutschen  Rechtsgeschichte). 
8  Thorpe,  i.  27   29. 
»  C.  59. 


66.     WIGMORE:   TORTIOUS   RESPONSIBILITY  497 

jured  family,  then  generally  to  the  courts  for  justice  to  be 
done: 

Lex  Salica.1  —  The  master  pays  one  half  the  wergeld  and, 
for  the  other,  surrenders  the  slave. 

Laws  of  Ine?  —  "If  a  Wessex  slave  slay  an  Englishman, 
then  shall  he  who  owns  him  deliver  him  up  to  the  lord  and  his 
kindred,  or  give  60  shillings  for  his  life."8 

LL.  William  I,  c.  52.  — "  All  who  have  servants  are  to  be 
their  pledges;  if  any  such  [servant]  is  accused,  they  [the 
masters]  are  to  have  him  before  the  hundred  for  trial.  If  in 
the  mean  time  he  flees,  the  master  shall  pay  the  money  due."4 

4.  And,   accompanying  the  later   form    (complete  exon- 
eration), the  master  must  usually  swear  an  exculpatory  oath 
denying  any  connivance  with  the  deed;    for  the  exoneration 
presupposes  that  the  master  had  no  part  in  the  deed: 

Chilperic.5  —  "Tune  dominus  servi,  cum  VI  [hominibus], 
juramento  [affirmet]  quod  pura  sit  conscientia  sua,  nee  suum 
consilium  factum  sit  nee  voluntatem  eius,  et  servum  ipsum  det 
ad  vindictam." 

Lex  Saxonum.Q — He  gives  up  or  sets  free  the  slave,  and 
swears  "  se  in  hoc  non  conscium  esse." 

5.  In  Norman  England  we  find  this  notion,  "  se  in  hoc 
non   conscium   esse,"   "  pura   conscientia,"   "  nee   suum   con- 
silium," distinctly  reappearing  in  the  idea  that  it  made  a 
difference  whether  the  master  consented  to  or  commanded 
the  harm  done  by  the  servant  or  other  member  of  his  house- 
hold.    But  it  is  necessary,  before  risking  a  generalization, 
to  set  forth  the  available  evidence: 

*35,  1;  35,  5.  Accord:  Pactus  Alamannorum,  iii.  17;  Lex  Frisionum3 
1,  13  (slave  for  one  third)  ;  Lex  Bavariorum,  8,  2,  89  (for  20  s.). 

2  Laws  of  Ine,  74. 

8  The  slave  might,  in  a  few  communities,  merely  be  set  free  (as  with 
animals)  and  the  responsibility  thus  disclaimed;  but  this  was  forbidden 
by  a  Carolingian  capitulary  as  against  peace  and  order,  and  persisted 
only  in  South  France  (Br.,  Pr.  Ak.,  832).  As  in  the  case  of  animals, 
the  giving  of  nourishment  after  the  deed  was  equivalent  to  a  sanctioning 
by  harboring  (Br.,  Pr.  Ak.  833). 

*  Bracton,  De  Legibus,  f.  124  b,  accord. 

6  Edict.  Chilperic,  c.  5. 

eC.  18.  Accord.  Lex  Frisionum,  1,  73;  Knut,  p.  75;  Lex  Alamanno- 
rum, 78,  6;  Rothar  (Lombards)  264,  342;  Lex  Salica,  35,  5  (later 
texts)  ;  Capitularia  Ribuaria,  Add.  5. 


498  VII.     TORTS 


Maitland's  Manorial  Courts,  I,  8  (A.  D.  1246).1  — "  Isa- 
bella Peter's  widow  is  in  mercy  for  a  trespass  which  her  son 
John  had  committed  in  the  lord's  wood." 

P.  9  (1247):  "Roger  the  Pleader  is  at  his  law  against 
Nicholas  Croke,  [on  the  issue]  that  neither  he  [Roger]  nor 
his  killed  Nicholas'  peacock." 

P.  17  (1248):  "Hugh  of  Stanbridge  complains  of  Gilbert 
Vicar's  son  and  William  of  Stanbridge  that  the  wife  of  the 
said  Gilbert,  who  is  of  his  [Gilbert's]  mainpast,2  and  the  said 
William  unjustly,  etc.,  beat  .  .  ..  And  Gilbert  and  William 
come  and  defend  all  of  it  fully." 

P.  96  (1279):  "  They  say  that  the  ploughman  of  Sir  Ralph 
Rastel  beat  and  ill-treated  John  Scot.  .  .  .  And  one  Thomas, 
the  servant  of  the  said  Sir  Ralph  Rastel,  by  way  of  objection 
said  that  .  .  .  the  said  John  Scot  beat  and  ill-treated  the  said 
ploughman.  .  .  .  The  jurors  say  that  J.  Scot  did  not  beat 
[the  ploughman].  .  .  .  Therefore  the  said  Thomas  is  in  mercy, 
12  d." 

PP.  149,  153,  154.  — Court  of  the  Fair  of  St.  Ives  (1275), 
Saturday,  May  11:  "  Hugh  of  Swinford  comes  and  complains 
of  Thomas  of  Toraux,  the  Canvasser.  .  .  .  And  the  said  Thomas 
comes  and  is  charged  and  convicted  of  having  by  [his  servant] 
Simon  the  Blake  of  Bury  sold  canvas  by  a  false  ell  in  his 
booth.  And  R.  B.,  R.  P.,  and  J.  G.3  are  associated  with  him 
in  that  booth."  .  .  .  Wednesday,  May  15:  "Let  all  the  mer- 
chants ...  be  summoned  to  come  to-morrow  before  the  steward 
to  adjudge  and  provide  that  Thomas  of  Toraux,  R.  B.,  R.  P., 
and  J.  G.,  merchants  selling  canvas,  have  justice  and  equity 
in  the  matter  of  Simon  the  Blake  of  Bury,  servant  of  said 
Thomas  and  his  fellows,  who  was  found  in  their  booth  measur- 
ing canvas  with  a  false  ell  and  selling  it.  Pledge  for  Thomas' 
appearance,  all  his  goods."  .  .  .  Thursday,  May  16:  "  For 
that  Simon  the  Blake  of  Bury  was  found,  etc.,  .  .  .  the  said 
merchants  as  well  as  the  said  Simon  were  accused  as  con- 
senting to  the  said  iniquity,  and  the  said  Thomas  and  his 
fellows  named  above  have  offered  to  prove  .  .  .  that  they  are 
not  guilty  thereof  .  .  .  and  for  that  the  said  Simon  confessed 
...  it  was  ordered  that  his  body  be  arrested.  .  .  .  And  the 
said  merchants  give  40s.  to  the  lord  for  his  grace  and  favor." 
In  a  later  suit  (p.  155)  by  Simon's  lawyer,  it  appears  that 

*  Selden  Society,  vol.  II. 

2  Household. 

3  Abbreviations  are  here  made  where  feasible. 

4  It  does  not  appear  whether  the  merchants  were  found  by  the  jury 
to  have  consented;  but  if  the  confession  of  Simon,  as  set  forth  in  the 
next  paragraph,  was  taken  as  true,  then  they  must  have  so  found.     The 
accusation  implies  that  consent  was  necessary. 


66.     WIGMORE:   TORTIOUS   RESPONSIBILITY  499 

Simon  "  confessed  in  full  court  that  he  received  the  said  rod 
by  the  hand  and  bailment  of  one  Thomas  of  Toraux,  merchant 
of  Rouen,  whom  he  thereof  vouched  to  warranty/'  and  that  he 
was  "  not  to  withdraw  himself  from  his  plaint,  but  was  to 
press  his  suit  against  the  said  Thomas ;  "  yet  he  did  withdraw 
his  voucher. 

Court  Baron,  36  (1250-1300  A.  D.).1  —  William  of  Street's 
Case:  Charge  against  one  who  sent  his  son  in  to  take  fruit 
from  the  lord's  tree;  denial  that  the  son  ever  did  so  at  his 
bidding:  "William  (saith  the  steward)  at  least  thou  canst 
not  deny  that  he  is  thy  mainpast,2  nor  that  he  was  seized  in  the 
lord's  garden  .  .  .  ;  how  wilt  thou  acquit  thyself  that  thou 
didst  not  make  or  bid  him  do  this?"  "Sir,  for  the  deed  of 
my  son  and  the  trespass  I  am  ready  to  do  thy  will,  and  I  ask 
thy  favor.  My  pledges  are,  etc."  "  But  how  wilt  thou  acquit 
thyself  of  the  sending  and  bidding?"  "In  such  wise,  sir, 
as  this  court  shall  award  that  acquit  myself  I  ought." 

P.  38:  William  Lorimer's  Case;  charge  of  sending  two  men 
to  cut  stubble  in  E's  field;  denial,  "never  did  such  persons 
by  his  sending  or  bidding  cut  the  stubble  of  that  place  nor 
carry  it  thence."  So  also  Walter  Coket's  Case,  p.  39.  In 
another  case  of  William  Lorimer's,  p.  55,  he  answers,  "  to  prove 
that  never  did  my  folk,  J.  and  T.  by  name,  cut  the  stubble  of 
that  place  by  my  commandment,  nor  carry  it  off,  I  am  ready, 
etc."  But  in  an  alternative  version,  he  denies  that  J.  and  T. 
were  his  mainpast,  alleging  that  they  were  only  laborers  hired 
from  day  to  day.  Apparently  either  defence  was  good. 

P.  53:  "William  of  E.,  thou  art  attached  to  answer  in  this 
court  wherefore  thy  son  who  is  thy  mainpast  entered  the  lord's 
garden  over  the  walls,  etc.  ..  .  .  Sir,  [to  prove]  that  never  was 
any  manner  of  fruit  carried  off  by  me,  I  will  do  whatever 
this  court  shall  award  that  do  I  ought.  —  William,  at  least 
thou  canst  not  deny  that  he  was  found  inside  and  carried  off 
divers  kind  of  fruit  at  his  will.  —  Sir,  't  is  true ;  wherefore  I  put 
myself  in  mercy." 

Bracton's  Note-Book.  — II,  596,  No.  779  (A.  D.  1233):  An 
assize  of  novel  disseisin  by  Simon  against  John.  J.  did  not 
come,  but  "  William  of  L.,  his  bailiff,  came  and  said,  for  J., 
that  if  any  disseisin  was  done  it  was  not  done  by  him,  because 
he  does  not  avow  [i.  e.  sanction]  the  deed,  nor,  if  it  was  done 
by  his  men,  did  any  one  come  to  him  to  lay  it  before  him 
[ostendere]  so  that  he  might  make  amends  [corigeret]."  And 
Simon  replies,  and  ends  by  saying  that  "  he  sent  to  John 
asking  that  he  should  make  amends  [emendaret]  and  he  re- 

1  Selden  Society,  vol.  IV  (ed.  Maitland  and  Baildon). 
•Household. 


500  VII.     TORTS 


fused  to  make  amends."  Ultimately  John  wins,  "  because  he 
did  no  disseisin." 

Ib.,  II,  600,  No.  781  (A.  D.  1233):  An  assize  of  novel  dis- 
seisin by  Ralph  Basset  against  the  Abbot  of  Kirkstede,  for 
ploughing  over  the  line  of  their  fields,  which  adjoined.  The 
Abbot  denies  any  disseisin,  and  says,  "  that  if  his  lay-members 
did  anything  there,  this  is  not  by  him,  and  if  it  were  so  [i.  e. 
that  they  had  done  harm]  and  it  had  been  laid  before  him, 
he  would  have  caused  amends  to  be  made  [emendari],  but  if 
anything  was  done  it  was  not  laid  before  him,  and  therefore 
he  says  that  he  (ipse)  did  no  disseisin  if  any  was  done."  Then 
Ralph  answers  "  that  the  Abbot  well  knew  of  it  and  it  was 
laid  before  him,  and  the  grain  was  carried  off  to  the  Abbot's 
own  grange."  The  jury  find  that  the  ploughs  of  the  Abbot 
did  plough  two  or  three  feet  over  the  line;  and  "on  being 
asked  whether  the  Abbot  knew  of  this,  they  say  that  they 
cannot  tell,  but  they  do  know  well  that  the  monks  and  the  lay- 
brethren  of  the  Abbot  were  there  to  see  that  it  was  done  [  ?  ad 
visum  faciendum]  ;  and  since  they  did  not  lay  it  before  the 
Abbot,  the  Abbot  should  fall  back  upon  them  [capiat  se  ad 
eos~\,  for  they  ought  to  inform  him  of  the  affair.  And  because 
the  jury  say  that  the  field  was  so  ploughed  and  that  there  are 
no  boundaries  and  that  the  Abbot  last  year  had  the  grain  car- 
ried off,  it  is  adjudged  that  .  .  .  the  Abbot  be  in  mercy;  dam- 
age, 5s."  The  jury  here  were  asked  if  the  Abbot  knew  of 
the  deed;  yet  he  lost  the  case,  though  the  jury  could  not  tell; 
and  the  annotator  (an  early  hand)  writes  on  the  margin: 
"  Note  that  if  one's  bailiffs  and  servants  do  not  lay  it  before 
their  master  that  a  disseisin  has  been  done,  the  master  is  not 
excused  though  he  says  that  he  knew  nothing  of  it,  inasmuch 
as  his  men  knew  of  it.  So  also  of  monks  rendering  obedience." 

Ib.,  II,  471,  No.  616  (A.  D.  1231):  In  an  action  for  taking 
the  plaintiffs'  nets  and  preventing  them  from  fishing,  the  de- 
fendants are  asked  "  whether  they  themselves  avow  [t.  e.  are 
ready  to  answer  for]  the  taking,  or  whether  they  did  the  taking 
by  authority  of  the  Abbot  of  S.  Edmund's,  whose  men  they 
are,  and  they  say  that  they  took  the  nets  of  their  own  author- 
ity and  avow  the  taking."  1 

Bracton  De  Legibus.  —  /.  204  b :  After  dealing  generally 
with  the  topic  of  disseisin,  and  passing  to  actions  for  dis- 
seisin by  servants,  he  says:  "But  if  they  [the  masters]  have 

*Cf.  also  Bracton,  N.  B.  III.  131,  No.  1114  (A.  D.  1234-1235),  where 
the  Prior  of  St.  Swithin  was  summoned  for  having  a  gallows,  etc.,  and 
violating  royal  privileges,  and  answered  as  to  one  charge,  describing  how 
the  men  of  the  place  caught  a  notorious  robber  and  murderer  "  et  ilium 
suspenderunt,"  but  says  "  quod  f actum  ilium  non  advocat ; "  yet  the 
defence  was  here  insufficient,  "  et  Prior  in  misericordia." 


66.     WIGMORE:   TORTIOUS  RESPONSIBILITY  501 

disavowed  the  deed  of  their  men,  and,  when  they  shall  have 
been  sued  in  any  respect  by  any  man  or  in  any  mode,  they 
shall  not  have  made  amends  [emendaverint],  they  are  still  liable, 
so  long  as  they  are  present  *  and  have  freely  placed  themselves 
on  the  assize,  although  they  are  not  named  in  the  writ.  But,  if 
they  shall  have  made  amends  for  the  deed  of  their  men,  whether 
before  demand  or  after,  as  long  as  it  was  before  the  taking  of 
the  assize,  they  shall  free  themselves  and  their  men  from  the 
penalty  of  the  disseisin.  But  if  the  masters  are  occupied  in  parts 
remote,  so  that  they  cannot  be  made  parties,  and  if  they  have  not 
known  anything  about  the  disseisin,  for  this  reason  the  assize  2 
shall  not  be  stayed."  Here  it  seems  that  the  avowal  or  disavowal 
affects  merely  the  liability  to  a  fine,  and  the  duty  to  make  com- 
pensation is  assumed  as  invariable.  Almost  the  same  principles 
are  further  expounded  at  f .  171  a  and  f.  172  b.  So  also  158  6, 
as  to  distraints  by  the  servant  of  a  lord:  "  It  must  be  inquired 
of  the  master  whether  he  has  avowed  the  deed  of  his  servants  or 
not;  and  if  not,  then  the  master  will  have  an  opportunity  to 
make  amends ;  but  if  he  has  avowed  it  or  has  not  made  amends, 
he  makes  the  wrong  his  own,  if  there  was  a  wrong." 

We  see  here  going  on  the  process  of  a  general  leavening 
by  the  principle  of  "  se  in  hoc  non  conscium  esse ;  "  and  ap- 
parently we  are  safe  in  concluding  that  by  the  end  of  the 
1200s  the  general  civil  rule  was  still  as  indicated  by  Brae- 
ton's  statement  on  the  particular  topic  of  disseisin.  In  other 
words,  so  far  as  any  penal  results  were  concerned,  the  master 
could  pretty  generally  3  exonerate  himself  by  pleading  that 
he  had  not  commanded  or  consented  to  the  act ;  4  while  never- 
theless this  was  only  a  growing  exception  to  a  responsibility 
which  the  moral  sense  of  the  community  was  still  inclined  to 
predicate  generally,  and  accordingly  the  liability  to  make 
good  any  harm  done  —  i.  e.  the  civil  liability  —  still  con- 
tinued without  regard  to  command  or  consent.  As  we  shall 
see  later,  the  test  of  command  or  consent  was  soon  after  ex- 
tended generally  to  a  civil  liability;  and  even  in  the  1200s 

1  In  court. 

2  Against  the  servants. 

3  But  for  some  time  exceptions  remained:  Fitzherbert,  Abridgment, 
"Corone,"  148  (1315). 

4  This  seems  indicated  by  the  questions  of  the  steward  in  the  Court 
Baron  cases   (with  one  exception)    and  the  inquiry  at  the  Fair  of  St. 
Ives;  for  in  those  cases  the  penal  idea  would  apparently  predominate- 
So  also  in  local  customs:  Bateson,  Borough  Customs,  I,  p.  62  (Selden 
Soc.  Pub.  vol.  XVIII,  1904). 


502  VII.     TORTS 


we  seem  to  see  it  coming.  Yet  as  that  century  was  not 
thoroughly  conscious  of  the  distinctions  "  civil  "  and  "  crim- 
inal," l  it  can  only  be  said  that,  at  the  point  to  which  we 
have  now  traced  the  topic,  we  find  that  the  test  of  command 
or  consent  was  applied  in  some  cases  and  not  applied  in 
•others,  the  general  notion  being  that  absence  of  command 
or  consent  excused  from  correctional  or  penal  consequence.2 

1  Notwithstanding  GlanviFs  and  Bracton's  use  of  the  terms  "  placita 
criminalia"  and  "placita  civilia." 

2  The  situation  in  the  twelfth   and  thirteenth  centuries  is  somewhat 
complicated  by  the  responsibilities  involved  in  the  frank-pledge  police 
regulations.     But  there  can  be  no  doubt  on  the  evidence  that  there  was 
a  general  Germanic  notion  of  responsibility  for  servants,  related  closely 
to  the  clan  or  kinship-responsibility  which  was  universal  in  primitive 
law,  but  preceding  and  independent  of  the  system  of  communal  respon- 
sibility known  as  frank-pledge  (whether  it  was  or  was  not  a  direct  suc- 
cessor of  frithborg).    This  being  understood,  the  authorities  of  the  thir- 
teenth century,  rightly  read,  do  not  give  us  any  reason  to  doubt  that  the 
responsibility   for   one's   household   was    (though  in   actual   content   not 
dissimilar)  in  history  and  in  popular  feeling  a  distinctly  different  thing 
from  the  responsibility  for  one's  neighbors  in  the  tithing  (frank-pledge). 
Thus   Bracton    (f.   124   6),  after  declaring  that  the  tithing  is  not  re- 
sponsible for  persons  not  required  by  law  to  be  in  frank-pledge,  says 
that  in  such  case  that  one  shall  be  responsible  in  whose  household  he  is, 
*'  nisi  consuetude  patriae  aliud  inducat,"  as  in  Hertford,  where  one  is  not 
responsible  "  pro  manupastu   [household]   suo,"  unless  by  harboring  an 
offender.     Then,  after  describing  the  application  of  the  rule  to  bishops, 
etc.,  and  their  duty  to  produce  their  servants  to  the  court  or  pay  a  for- 
feit, he  continues,  "  and  so  it  shall  be  done  for  all  others  who  are  in  any- 
body's household,  because  every  man,  whether  free  or  serf,  either  is  or 
ought  to  be  in  frank-pledge  or  in  some  one's  household  "  (the  italics  are 
the  writer's).    He  then  reproduces  the  old  Germanic  ideas  (LL.  Hlothar 
and   Eadric,  c.   15)    as  to  "household,"  —  "receiving   food   or  clothing 
from    him,    or    only    food    with    wages,  .  .  .  and    according    to    ancient 
custom  he  may  be  said  to  be  of  one's  family  who  has  been  given  hos- 
pitality  for  three  nights."      (Cf.   also   Selden   Soc.,   PL   Cr.,  i.   No.   55 
(A.D.  1202) :  "  William  of  Morton  and  Simon  Carpenter  are  outlawed. 
.  .  .  They  were  nowhere  in  frank-pledge,  but  servants  of  the  Abbot  of 
Woburn;"  Bracton,  N.  B.  iii.  563,  No.  1724   (A.D.  1226):  "  Henricus  le 
Ireys  captus  .  .  .  non  est  in  decenna   [tithing],  nee  habet  dominum  qui 
eum  advocet,  .  .  .  suspendatur ; "  also  Ib.  ii.   116,  annotator,  and  foot- 
note 1;  Gneist,  Const.  Hist.  Eng.,  i.  185;  Bracton,  De  Legibus,  153  6.) 
It  seems  clear,  then,  that  there  is  nothing  which  should  induce  us  to 
believe  that  the  responsibility   for   servants  was  not   a  perfectly  clear 
and  natural  one  apart  from  frank-pledge.    When  we  meet  such  expres- 
sions as  "omnes  qui  servientes  habent,  eorum  sint  franc-plegii "    (LL. 
Wm.  I.  c.  52;  Thorpe,  i.  487),  and  "if  the  servant  of  any  lord  .  .  .  com- 
mits a  felony,  .  .  .  [the  lord]   is  to  be  amerced,  and  the  reason  is  be- 
cause he   received   him   in   bourgh    [pledge]  "    (Fitzherbert,    "  Corone," 
148),  we  see  that  we  are  dealing  with  expressions  used  either  by  way 
of  analogy  (the  responsibility  being  in  both  cases  practically  the  same) 
or  at  a  later  date  in  ignorance  or  in  disregard  of  the  former  distinc- 
tions.    Compare  the  fellow-burgess   responsibility  in  towns    (Bateson's 
Borough  Customs,  ii,  intrcd.  p.  xxiv,  Selden  Soc.  vol.  xxi,  1906). 


66.     WIGMORE:  TORTIOUS  RESPONSIBILITY  503 

In  tracing  these  topics  to  this  stage,  two  things  must  be 
noted  with  reference  to  the  sources  from  which  we  thus  arrive 
at  a  knowledge  of  the  root  Germanic  idea:  (1)  It  is  not  an 
absolute  and  unvarying  idea.  It  was  not  uniformly  and 
invariably  dominant,  and  there  were  of  course  exceptions 
more  or  less  notable.  Possibly  one  of  these  obtained  in  the 
case  of  fire  kept  in  one's  house  and  accidentally  resulting  in 
a  conflagration;1  this  we  shall  consider  later.  But  on  the 
whole  the  popular  ethico-legal  sentiment  was  of  the  content 
above  set  forth.  (2)  The  various  stages  of  the  idea's  de- 
velopment, as  already  remarked,  cannot  be  plainly  pieced  out 
for  each  of  the  Germanic  communities ;  nor  can  it  be  asserted 
that  for  the  whole  race  the  development  went  on  with  any 
homogeneity  of  time  and  incident.  What  can  be  affirmed  is 
merely  that  the  idea,  in  the  various  communities  and  at  vari- 
ous epochs,  passed  through  stages  such  as  those  indicated. 


We  have  now  reached  the  stage  when  the  notions  of  tortious 
civil  responsibility,  as  developed  in  the  newly  organized 
Anglo-Norman  courts,  may  begin  to  be  traced  separately 
from  those  of  criminal  responsibility.  Here  the  process  be- 
gins to  be  more  complicated.  The  groupings  thus  far  as- 
sumed for  convenience  —  harm  from  (a)  a  personal  deed, 
(6)  an  animal,  (c)  an  inanimate  thing,  (d)  a  servant  or 
agent  —  must  here  be  abandoned,  and  the  line  of  tracing 
must  be  accommodated  to  the  groupings  which  are  most 
marked  in  the  precedents  of  1300-1800;  the  effort  in  hand 
being  always  to  make  out  the  subjective  course  of  legal 
thought  in  its  progress  towards  the  accepted  standards  of 
to-day.  The  topics  then  may  be  followed  down  in  this  order: 
1.  Harm  done  Unintentionally  and  Personally;  2.  Harm 
done  in  Self-defence ;  3.  Harm  done  by  an  Infant  or  a  Luna- 
tic ;  4.  Keeping  of  Fire ;  5.  Keeping  of  Animals,  with  refer- 
ence to  (a)  land  trespasses,  (6)  trespasses  by  biting,  etc.; 

^runner,  D.  Rg.,  ii.  657-658. 

2  This  and  Part  III  are  reversed  from  the  order  of  the  original 
article. 


504  VII.     TORTS 


6.  Keeping  of  Dangerous  Things  in  general ;  7.  Harm  done 
by  a  Servant  or  Agent. 

1.  Harm  done  Unintentionally  and  Personally.  —  Here, 
about  the  1200s,  the  responsibility  was  still  absolute,  and 
irrespective  of  personal  blame  in  producing  the  harm.  In 
homicide,  at  least,  the  slayer  by  misadventure  forfeited  his 
goods  and  paid  some  fine  or  fee  to  the  king,  though  his  life 
was  spared;  while  in  probably  all  torts  the  harm-doer  paid 
some  compensation  to  the  injured  party.  What  we  have  to 
note  is,  first,  that  no  distinction  as  to  negligence  or  the  like 
was  yet  made ;  it  was  either  "  misadventure,"  "  unwitting," 
—  that  is,  not  intentional,  —  or  wilful,  intentional.  Secondly, 
we  note  that  the  state  of  things  still  corresponded  in  essence 
with  prevailing  ethical  notions;  the  man  was  getting  fair 
dealing  as  far  as  the  standards  of  the  time  went.  Our  object 
must  be  to  discover  how  and  when  the  notion  got  away  from 
these  tests. 

The  first  circumstance  we  perceive  is  that  the  penal  law 
was  already  getting  away  from  them,  as  is  shown  by  the 
sparing  of  the  life;  and  as  the  purposes  of  a  penal  law  be- 
came more  and  more  clearly  realized,  we  may  suppose  that 
the  penal  treatment  grew  less  and  less  rigorous  as  time 
passed;  though  the  forfeiture  remained,  in  name  at  least, 
even  in  Blackstone's  time.  But  a  distinction  was  early  made 
between  penal  and  civil  consequences,  as  the  Thorn-Cutting 
case  indicates.1  This  rested  probably  on  the  ground,  still 
very  properly  accepted,  that  "  in  all  civil  acts  the  law  doth 
not  so  much  regard  the  intent  of  the  actor  as  the  loss  and 
damage  of  the  party  suffering."2  But  to-day  in  torts  we 
do  certainly  consider,  not  merely  the  sufferer's  damage,  but 
the  blamableness  of  the  defendant's  conduct;  while  no  such 
distinction  was  yet  made,  in  the  1300s,  even  in  cases  of  mere 
"  misadventure."  We  have  still  therefore  to  trace  the  transi- 
tion in  this  respect. 

Now,  it  has  been  generally  supposed  that  until  the  present 

*Y.  B.  6  Edw.  IV,  7,  18  (1466):  Fairfax,  for  the  pll,  "I  say  there 
is  a  diversity  between  an  act  resulting  in  a  felony  and  one  resulting  in 
a  trespass,  for  .  .  .  when  it  was  against  his  will,  it  was  not  animo 
felonico." 

2  Lambert  v.  Bessey,  T.  Raym.  421    (1681). 


66.     W IGNORE:   TORTIOUS  RESPONSIBILITY  505 

century  (earlier  in  this  country,1  later  in  England2)  the  old 
notion  continued,  i.  e.  that  the  rationalization  never  proceeded 
any  further  than  to  posit  a  voluntary  act  by  the  defendant ; 
that  if  from  a  voluntary  act  a  Trespass  —  that  is,  a  direct 
and  immediate  injury  —  followed,  nothing  could  save  the 
defendant  from  civil  responsibility.3  And  no  doubt  this  came 
to  be  at  least  the  preliminary  test,  the  sine  qua  non,  showing 
//itself  most  prominently  in  the  rule  of  pleading  that  if  there 
had  been  no  such  voluntary  act,  then  there  was  not  even  a 
prima  facie  Trespass.4  But  more  than  this  the  whole  course 
of  precedents  and  of  contemporary  legal  opinion  does  not 
allow  us  to  believe.  The  evidence  seems  plain  that  the  ration- 
alization towards  the  present  standards  began  at  a  much 
earlier  period  than  has  been  supposed.  5  In  other  words, 

1  Vincent  v.  Stinehour,  7  Vt.  62  (1835),  Harvey  v.  Dunlop,  Hill  & 
Den.  Suppl.  193   (1843),  Brown  v.  Kendall,  6  Cush.  292   (1850). 

2  Stanley  v.  Powell,  infra. 

8  See,  for  example,  the  language  of  Grose,  J.,  in  Leame  v.  Bray,  infra; 
the  argument  for  the  defendant  in  Holmes  v.  Mather,  infra;  Lord 
Cranworth,  in  Fletcher  v.  Rylands,  L.  R.  3  H.  L.  330:  "When  one 
person,  in  managing  his  own  affairs,  causes,  however  innocently,  damage 
to  another,  it  is  obviously  only  just  that  he  should  be  the  party  to 
suffer;"  and  5  Harv.  Law  Review,  36:  "The  rule,  so  well  settled  in 
America,  that  inevitable  accident  is  a  good  defence  to  an  action  of 
trespass  for  personal  injuries,  has  not  hitherto  found  entire  favor  with 
the  English  courts.  There  crept  very  early  into  the  English  law  a 
principle,  which  the  Courts  have  been  slow  to  repudiate,  to  the  effect 
that  he  who  acts  voluntarily  acts  at  his  peril,  and  is  responsible  for 
personal  injuries  to  another  resulting  from  his  acts,  though  the  injury 
be  the  outcome  neither  of  wilful  wrong-doing  nor  of  negligence.  The 
few  cases  in  which  a  defence  has  been  allowed  have  been  decided  either 
upon  principles  of  expediency  or  upon  questions  of  pleading.  .  .  .  The 
English  judges  have  obstinately  refused  to  adopt  squarely  the  reasoning 
of  the  American  courts,  that  where  a  man  uses  due  care  he  is  not 
responsible  for  results  which  could  not  have  been  foreseen,  and,  while 
practically  arriving  at  the  same  results  in  a  number  of  cases,  have 
based  their  decisions  upon  narrow  and  unsatisfactory  grounds." 

4  Gibbons  v.  Pepper,  1  Ld.  R.  38;  Knapp  v.  Salsbury,  Boss  v.  Litton, 
Goodman  v.  Taylor,  Hall  v.  Fearnley,  supra. 

6  Following  is  a  chronological  list  of  the  principal  precedents  showing 
the  transition:  1330,  Fitzherbert,  Abridgment,  "  Corone,"  302,  354; 
1400,  Beaulieu  v.  Finglam,  Y.  B.  2  H.  IV,  18,  6;  1466,  Thorn-Cutting 
Case,  Y.  B.  6  Ed.  IV,  7,  18;  1506,  Tithe  case,  Y.  B.  21  H.  VII,  27,  5; 
1605,  Millen  v.  Fandrye,  Popham  161;  1616,  Weaver  v.  Ward,  Hobart 
134;  1630,  Bacon,  Maxims,  No.  VII;  1681,  Lambert  v.  Bessey,  T.  Ray- 
mond 421;  1682,  Dickenson  v.  Watson,  T.  Jones  205;  1700,  Mason  v. 
Keeling,  12  Modern  332;  1716,  Hawkins,  Pleas  of  the  Crown,  I,  c.  28, 
§27;  1724,  Underwood  v.  Hewson,  1  Strange  596;  1760,  Buller's  Nisi 
Prius,  6th  ed.,  16;  1767,  Beckwith  v.  Shordike,  4  Burrow  2092;  1770, 
Davis  v.  Saunders,  2  Chitty  639;  1773,  Scott  v.  Shepherd,  2  Wm.  Bl. 


506  VII.     TORTS 


there  has  never  been  a  time,  in  English  law,  since  (say)  the 
early  1500s,  when  the  defendant  in  an  action  for  Trespass  l 
was  not  allowed  to  appeal  to  some  test  or  standard  of  moral 
blame  or  fault  in  addition  to  and  beyond  the  mere  question 
of  his  act  having  been  voluntary ;  i.  e.  conceding  a  voluntary 
act,  he  might  still  exonerate  himselF2  ~( apart  from  excuses 
of  self-defence,  consent,  and  the  like).  At  first  this  test, 
naturally,  was  vague  enough.  "  Inevitable  necessity,"  "  un- 
avoidable accident,"  "  could  not  do  otherwise,"  served  indis- 
criminately to  express,  in  judicial  language,  the  reasons  of 
fairness  on  which  they  equally  exempted  him  who  had  inten- 
tionally struck  in  self-defence,  and  him  who  had  unintention- 
ally injured  without  what  we  now  call  "  negligence,"  and  him 
who  intentionally  trespassed  on  the  plaintiff's  land  to  avoid  a 
highway  attack. 3  The  phrases,  "  non  potuit  aliter  f acere  " 
and  "  inevitable  necessity,"  served  as  leading  catchwords  for 

892;  1773,  Barker  v.  Braham,  3  Wilson  368;  1793,  Comyn's  Digest,  4th 
ed.,  "Battery,"  (A);  1794,  Ogle  v.  Barnes,  8  T.  R.  188;  1797,  Bacon's 
Abridgment,  "Trespass,"  (D),  (I);  1799(?),  Espinasse,  Nisi  Prius, 
3d  ed.,  313;  1800,  McManus  v.  Crickett,  1  East  109;  1803,  Leame  v. 
Bray,  3  East  593;  1806-8,  Selwyn,  Nisi  Prius,  1328;  1808,  Chitty,  Plead- 
ing, 128;  1810,  Milman  v.  Dolwell,  2  Camp.  378;  1810,  Knapp,  Salsbury, 
2  Camp.  500;  1823,  Wakeman  v.  Robinson,  1  Bing.  213;  1832,  Boss  v. 
Litton,  Goodman  v.  Taylor,  5  C.  &  P.  407,  410;  1834,  Pearcy  v.  Walter, 
6  C.  &  P.  232;  1837,  Cotterill  v.  Starkey,  8  C.  &  P.  691;  1842,  Hall  v. 
Fearnley,  3  Q.  B.  919;  1849,  Sharrod  v.  R.  Co.,  4  Exch.  585;  1870,  Smith 
v.  R.  Co.,  L.  R.  6  C.  P.  14;  1875,  Holmes  v.  Mather,  L.  R.  10  Exch.  261; 
1891,  Stanley  v.  Powell,  1  Q.  B.  86. 

1  For  a  qualification  as  to  trespasses  to  realty  and  to  personalty,  see 
post. 

2  Originally  the  distinction  requiring  this  to  be  done  by  an  affirmative 
plea  in  justification  seems  not  to  have  prevailed. 

8Bracton's  Note-Book,  III,  229,  No.  1216  (A.D.  1236-37),  where  in 
a  killing  in  defence  he  is  pardoned,  the  test  being  "  quia  non  potuit 
aliter  evadere  manus  eius;"  ib.  Ill,  107,  No.  1084  (A.D.  1225),  "aliter 
enim  mortuus  esset;"  (1319)  Y.  B.  12  Edw.  II,  381,  "since  the  defend- 
ant could  not  otherwise  escape;"  (1459)  37  H.  VI,  37,  pi.  26,  the 
defendant  trespassed  to  avoid  the  attack  of  the  plaintiff  on  the  high- 
way; held  justifiable,  "because  he  could  not  do  otherwise  than  this;'* 
Choke,  C.  J.,  in  Thorn-cutting  case  (1466):  "As  to  what  was  said 
about  their  falling  in,  ipso  invito,  that  is  no  plea,  but  he  ought  to  show 
that  he  could  not  do  it  in  any  other  way,  or  that  he  did  all  that  was 
in  his  power  to  keep  then  out;"  see  also  Catesby,  arg.;  Britton 
(Nichols),  I,  15,  "from  necessity  to  avoid  death;"  Bacon,  Maxims,  V, 
"impossible  to  do  otherwise;"  Blackstone,  J.,  in  Scott  v.  Shepherd? 
"  Not  even  menaces  from  others  are  sufficient  to  justify  a  trespass 
against  a  third  person  .  .  .  nothing  but  inevitable  necessity,"  citing 
Weaver  v.  Ward,  Dickenson  v.  Watson,  Gilbert  v.  Stone;  counsel  in 
Gibbons  v.  Pepper,  4  Mod.  405,  "  for  it  was  no  neglect  in  him,  and  the 
mischief  done  was  inevitable;"  and  the  other  cases  cited  supra,  note  5. 


66.     WIGMORE:  TORTIOUS  RESPONSIBILITY  507 

many  centuries  ;  and  even  up  to  the  1800s  we  find  Court  and 
counsel  constantly  interchanging  "  inevitable  accident  "  and 
"  absence  of  negligence  or  blame."  l  The  precedents  show 
us,  then,_that  somewhere  about  .1.500.  a  decided  sloughing-off 
oFffiT  last  stage  of  the  primitive  notion  took  place,.  and  a 
defendant  could  exempt  himself  in  this  sort  of  an  action  if 
his  act,  though  voluntary,  had  been  without  blame  ;  the  stand- 
ard being  more  indefinite,  and  perhaps  not  as  liberal,  as  to- 
day, but  not  different  in  kind.2  But  it  would  seem  that 
towards  the  latter  half  of  the  1800s  the  opinion  at  the  bar  in 
England  misconceived  the  language  of  some  of  the  earlier 
cases,3  and  it  became  necessary  to  review  them  in  two  cases 
(Holmes  v.  Mather,  1875;  Stanley  v.  Powell,  1891),  in 
which  the  doctrine  was  finally  settled,  for  England,  that  the 
defendant's  attention  to  the  requirements  of  due_care,may  j 

- 


be  (not  necessarily  always  is)  a  defenceT^vpTI  whprp  «..>.TPS- 
pass  has  been  done.  The  same  doctrine  ("there  must  be 
some  blame  or  want  of  care  and  prudence  to  make  a  man 
answerable  in  trespass  ")  had  long  before  been  laid  down  in 
this  country,  and  that,  too,  purely  as  a  matter  of  the  right 
reading  of  the  precedents.4 

1  Buller's  Nisi  Prius,  "  that  it  was  inevitable,  and  that  he  committed 
no   negligence  ;  "    Comyn,   "  inevitable    and   without    any   neglect  ;  "    Es- 
pinasse,   "  involuntary   and  without  fault  ;  "   Lord   Denman,  in   Boss  v. 
Litton,  "  inevitable  accident,"  i.  e.  "  one  which  the  defendant  could  not 
prevent  ;  "  Patteson,  J.,  in  Cotterill  v.  Starkey,  to  the  same  effect  ;  Nel- 
son,   C.   J.,   in    Harvey   v.    Dunlop,    Hill    &    Den.    Suppl.    193    (1843), 
"  from  inevitable  accident,  or  which  in  law  or  reason  is  the  same  thing, 
from   an   act  that   ordinary   human   care   and    foresight   are   unable   to 
guard  against;"   Center  v.   Finney,   17  Barb.   94    (1852),   "wholly  un- 
avoidable and  no  blame  imputable;"  Selden,  J.,  in  Dygert  v.  Bradley, 
8  Wend.  470   (1832),  "When  we  speak  of  an  unavoidable  accident,  in 
legal    phraseology,  ...  all    that    is    meant    is    that    it    was    not    occa- 
sioned in  any  degree,  either  remotely  or  directly,  by  the  want  of  such 
care  or  skill  as  the  law  holds  every  man  bound  to  exercise  ;  "  and  the 
other  cases  cited  supra,  note  5,  p.  505. 

2  The  same  differentiation  of  misfortune  from  negligence  may  be  seen 
progressing  in  the  law  of  tenant's  liability  for  waste;  here  it  had  be- 
come plainly  announced  by  the  1500s:  Kirchwey,  Liability  for  Waste, 
Columbia  Law  Review,  VIII,  625,  627  (1908). 

8  Probably  owing  chiefly  to  the  expressions  of  Grose,  J.,  in  Leame  v. 
Bray,  supra,  note  5,  p.  505.  These,  taken  apart,  appeared  to  support, 
and  perhaps  were  intended  by  him  to  support,  the  stricter  view.  The 
other  and  later  cases  show  that  Lord  Ellenborough  (also  a  judge  in 
Leame  v.  Bray)  did  not  hold  it. 

4  See  Vincent  v.  Stinehour,  Harvey  v.  Dunlop,  and  other  American 
cases  cited  supra,  notes  1,  pp.  505,  507. 


508  VII.     TORTS 


In  trespasses  to  personalty l  and  to  realty  there  had  orig- 
inally been  a  disposition,  at  the  time  the  general  tendency  to 
mitigation  began,  to  carry  it  out  in  this  field  also.  For  in- 
stance, Rede,  C.  J.,  in  21  H.  VII,  (1506),  2  declared  that 
"  where  the  executors  take  the  goods  of  a  stranger  with  those 
of  the  testator,  they  are  excusable  for  the  taking  in  trespass," 
because  "  one  cannot  prima  facie  know  perfectly  which  goods 
belong  to  the  testator  and  which  to  the  stranger ;  "  and  the 
excused  trespass  of  the  oxen  in  22  Edw.  IV,  (1483)  8,  24,3 
seems  to  rest  on  a  similar  notion ;  while  Choke,  C.  J.,  shows 
it  clearly  in  the  Thorn-cutting  case  (1446).2  But  this  ten- 
dency soon  disappeared,4  probably  for  reasons  of  policy, 
which  are  still  accepted  as  valid ;  5  and  no  such  defence  is  now 
admissible,  except  in  trespasses  or  conversions  of  personal 
property  under  exceptional  circumstances.  6 

2.  Self-defence.  —  Here,  as  we  have  already  seen,  the 
Statute  of  Gloucester  (1278)  provided  that,  in  crown  cases, 
the  slayer  in  self-defence  (though  forfeiting  his  goods)  should 
receive  a  pardon  by  the  king's  favor  if  he  pleased.  7  Yet  the 
practice  as  to  a  pardon  varied,  for  in  two  of  these  cases 
(1302,  1349)  the  defendant  was  apparently  set  free  immedi- 
ately.8 By  1624  the  forfeiture  was  not  required.9  In  civil 
actions  of  trespass,  however,  the  mitigation  was  longer  in 
coming.  In  1294 10  and  in  1319 ll  the  defendant  was  obliged 
to  respond;  but  in  1400,1  2and  ever  since,  the  plea  is  accepted 

No  doubt  the  doctrine  of  "acting  at  peril"  to-day  still  covers  the 
situations  involved  in  some  of  these  cases;  for  this  see  post  in  this 
article. 

1  Including  cases  where  to-day  trover  would  lie. 

2  Cited  supra,  note  5,  p.  505. 

3  Post,  p.  515,  note  1. 

*  Basely  v.  Clarkson,  3  Lev.  37    (1681).     But  it  perhaps  lingers  in 
Beckwith  v.  Shordike,  supra,  note  0. 
"See  Holmes,  The  Common  Law,  151. 
6E.  g.  Wellington  v.  Wentworth,  8  Mete.  548. 

7 The  earlier  cases  of  this  sort  are:  (1302)  Y.  B.  30-31  Ed.  I,  513 
(Rolls  ed.);  (1338)  Y.  B.  12  Ed.  Ill,  533  (Rolls  ed.)  ;  (1338)  Y.  B. 
21  Ed.  Ill,  17,  pi.  22;  (1349)  Fitzh.  Abr.,  "  Corone,"  261;  (1370)  ib., 
94;  (1368),  41  Ass.  21  '(appeal  of  mayhem). 

8  A  pardon  was  required  as  late  as  1489  (Fitzherbert,  Abridgment* 
"Corone,"  61). 

"Dever's  Case,  Godbalt,  288. 
10Y.  B.  21-22  Ed.  I,  586  (Rolls  ed.). 
alY.  B.  12  Ed.  II,  381   (Rolls  ed.). 
12Y.   B.  2  H.  IV,  8,  pi.  40. 


66.     WIGMORE:   TORTIOUS  RESPONSIBILITY  509 

as  a  complete  defence.1  Yet  its  whole  scope  was  not  fully 
realized  at  first.  For  instance,  in  the  very  case  preceding 
that  of  1302,  in  which  the  defendant  was  set  free  for  killing 
a  wheat-thief  in  self-defence,  the  defendant  (in  a  crown  case) 
who  killed  a  wheat-thief  in  defence  of  his  brother  was  sent 
to  prison ; 2  and  in  1436,  3  when  it  was  agreed  that  in  all 
justice  "  it  is  lawful  for  a  man  to  aid  his  master,"  it  seems  to 
be  a  case  of  first  impression. 

3.  Lunatics  and  Infants.  —  The  natural  result  of  the  prim- 
itive notion  would  be  to  hold  the  lunatic  liable,  no  less  than 
the  slayer  by  misfortune;  and  in  fact  the  two  stood  at  this 
time  on  the  same  footing : 

"  It  was  presented  that  a  certain  lunatic  wounded  himself  with 
a  knife,  and,  after  he  recovered  from  his  infirmity  [lunacy]  and 
received  the  rites  of  the  church,  he  died  of  his  wounds ;  his  chat- 
tels were  confiscated"  (1315). 4  In  1330  a  lunatic  homicide  is 
given  a  king's  charter  of  pardon.5 

But  the  popular  superstitions  in  such  matters  prevented 
as  rapid  an  approach  as  might  have  been  expected  towards 
a  rational  treatment,  even  in  criminal  cases,  of  lunatic  harm- 
doers.  It  would  seem  that  a  similar  inability  to  make  allow- 
ances served  for  a  long  time  as  in  part  a  basis  for  tortious 
responsibility;  though  doubtless  as  much  or  more  influence 
is  to  be  attributed  to  the  maxim,  so  powerful  in  the  sphere 
of  deeds  and  contracts,  that  "  no  man  of  full  age  shall  be, 
in  any  plea  to  be  pleaded  by  him,  to  be  received  by  the  law 
to  stultify  himself."  6  However,  by  Lord  Bacon's  time,  the 
principle  was  maintained  in  the  form  that  a  lunatic  was  re- 
sponsible for  his  torts  in  the  same  way  as  an  ordinary  per- 
son.7 

*So  also  in  the  borough  courts  in  the  1400s  (Bateson's  Borough 
Customs,  I,  53,  and  II,  Introd.  p.  40;  Selden  Soc.  vols.  XVIII,  1904  and 
XXI,  1906),  where  the  learned  editor  is  therefore  hardly  correct  in 
commenting  that  at  that  time  "by  the  law  of  the  land  nothing  less 
than  the  King's  pardon  would  suffice." 

1  Y.  B.  30-31  Ed.  I,  518  (Rolls  ed.). 

» 14  H.  VI,  24,  pi.  72. 

*Fitzh.  Abr.,  "Corone,"  412  (1315). 

elb.  351. 

•Beverley's  Case,  4  Coke  R.  123  b  (1603). 

7  Bacon,  Maxims,  VII  (1630) ;  Weaver  v.  Ward,  Hobart,  134  (1616). 


510  VII.     TORTS 


The  development  was  quite  otherwise  with  the  responsibil- 
ity of  Infants.  In  Germanic  custom  the  male  child  was  with- 
out a  standing  in  the  community  as  an  obligor  or  an  obligee. 
Like  the  master  for  the  slave,  the  father  answered  for  and 
made  claims  on  behalf  of  the  child. l  The  ceremony  of  invest- 
ing him  with  arms  as  a  wehrhaft,  or  weapon-bearing,  member 
of  the  community,  was  the  usual  period  for  the  assumption  of 
rights  and  liabilities  ;  and  this  customarily  (not  always)  took 
place  at  the  age  of  twelve.  Hence  we  find,  in  Anglo-Norman 
days,  the  age  of  twelve  years  as  the  earliest  at  which  liability 
can  begin.2  We  soon  see,  however,  a  tendency  to  reduce  this 
age-limit,3  and  the  twelve-year  rule  came  to  be  disregarded  in 
criminal  cases;4  while  a  seven-year  limit  appears  in  later 
criminal  law  as  the  subject  of  a  presumption  against  criminal 
intent.5  The  case  of  35  H.  VI,  11,  pi.  18  (1457)  is  usually 
given  as  the  first  in  which  an  infant  was  held  liable  in  Tres- 


1See  B  runner,  Deutsche  Rechstgeschichte,  I,  76;  Wackernagel,  Die 
Lebensalter,  1862,  p.  46;  and  some  references  to  Anglo-Saxon  laws  in 
Hale's  Pleas  of  the  Crown,  I,  20  if.  Notice  the  same  notion  of  legal  dis- 
ability in  one  of  the  two  forms  of  the  writ  of  pardon  for  infants  in 
the  Registrum  Brevium  (309  &),  where  the  infant  is  discharged,  but 
is  to  come  up  again  and  answer,  if  any  one  raises  the  question  after 
he  has  arrived  "  ad  legitimam  aetatem." 

2  Y.  B.  30-31  Ed.  I,  529  (Rolls  ed.)  ;  a  boy  had  set  up  a  mark  inside 
the  house,  and  in  shooting,  his  arrow  accidentally  went  without  and 
killed  a  woman;  Justiciarius:  "Since  he  is  not  of  the  age  of  twelve 
years  he  is  not  a  felon,  but  good  and  loyal ; "  and  as  he  had  absconded, 
it  was  publicly  proclaimed  that  he  might  return  if  he  would. 

8  1302,  Y.  B.  30  Ed.  I,  511  (Rolls  ed.) ;  one  who  killed  in  defence  of 
his  brother  was  committed  to  prison;  and  it  was  said  that  he  was 
under  twelve  years  of  age;  Spigurnel,  J.:  "If  he  had  done  the  deed 
before  his  age  of  seven  years  he  should  not  suffer  judgment;  but  if 
he  had  done  any  other  deed  not  causing  the  loss  of  life  or  limb,  though 
against  the  peace,  he  should  not  answer,  because  before  that  age  he  is 
not  of  the  peace." 

4 1338,  Y.  B.  12  Ed.  Ill,  627  (Rolls  ed.):  "  Itan,  a  girl  of  thirteen 
years,  was  burnt  for  that  while  she  was  the  servant  of  a  certain  woman 
she  killed  her  mistress;  and  this  was  [so]  found;  therefore  adjudged 
to  be  treason.  And  it  was  said  that  by  the  old  law  no  one  under  age 
was  hung,  or  suffered  judgment  of  life  or  limb.  But  Spigurnel  found 
a  case  that  an  infant  of  ten  years  killed  his  companion  and  concealed 
him,  and  he  was  hung,  since  by  the  concealment  he  showed  that  he 
knew  how  to  distinguish  between  evil  from  good.  And  thus  malitia 
supplet  cetatem."  So  also  in  the  borough  courts,  A.  D.  1200-1400  (Bate- 
son's  Borough  Customs,  I,  p.  63,  II,  Introd.  p.  42;  Selden  Soc.  Pub. 
vols.  XVIII,  1904,  and  XXI,  1906),  where  the  parent  is  often  held 
answerable;  yet  there  is  no  consistent  principle  visible. 

6  Reg.  v.  Smith,  1  Cox  Cr.  C.  260. 


66.     WIGMORE:   TORTIOUS  RESPONSIBILITY  511 

pass. l  But  the  language  of  the  Court  there  shows  (the  penal 
idea  being  still  at  that  time  attached  to  the  idea  of  a  tres- 
pass) a  disposition  to  exempt  the  infant;  and  the  reason 
given  for  refusing  to  discharge  him  as  incapable  of  discretion 
(that  the  possibility  of  a  plea  of  justification  takes  the  power 
from  the  Court)  does  not  put  the  case  on  any  ground  of  the 
immateriality  of  intention.  Moreover,  in  161 12  it  was  re- 
solved by  the  Court  that  a  writ  of  capiatur  would  not  be 
issued  in  an  action  of  vi  et  armis  against  an  infant ;  and  in 
Temp.  Car.  I.  3  an  action  of  Case  for  slander  against  an  in- 
fant was  sustained  on  the  ground  that  malitia  supplet  cetatem. 
However,  about  this  time  we  find  infants  ranked  with  lunatics 
as  liable  civilly  on  the  general  ground  that  the  intent  (i.  e. 
bad  intent,  bad  motive)  was  immaterial.  4 

4.  Keeping  of  Fire.  —  Here  the  old  responsibility,  in  its 
strictest  form,  continued  down  to  Queen  Anne's  reign,  and  for 
almost  the  whole  period,  we  may  believe,  it  was  sanctioned  by 
popular  notions.5  The  short  name  of  the  action  ("  for  neg- 
ligent garder  son  feue ")  is  a  misleading  one;  it  means 
merely  "  for  failing  to  keep  in  his  fire,"  and  the  responsibility 
was  absolute,  as  may  be  seen  from  the  words  of  the  writ 6 
("  quare  .  .  .  homo  et  femina  .  .  .  ignem  suum  die  ac  nocte 

*The  child  was  four  years  of  age;  the  judge  says:  "Can  you  find 
it  in  your  conscience  to  declare  against  this  child  of  so  tender  an  age? 
I  think  that  he  did  not  know  any  malice,  for  he  is  not  of  great 
strength,  and  you  can  see  that  before  your  own  eyes."  Counsel  replies 
that  the  fact  remains  that  one  of  his  client's  eyes  is  out.  Counsel  for 
defence  claims  that,  as  in  felony,  the  Court  can  dismiss  the  case  if 
they  think  his  youth  shows  that  he  did  not  know  he  was  doing  wrong. 
But  Moyle  refuses,  because  in  felony  there  is  only  a  plea  of  not  guilty, 
and  no  justification,  and  so  "the  justices  have  it  in  their  discretion  to 
dismiss  him  if  it  appears  to  them  that  he  is  of  such  an  age  that  he  has 
not  discretion;  but  otherwise  in  trespass,  for  in  a  writ  of  trespass  ^the 
party  may  justify  the  trespass,  and  not  plead  not  guilty,  and  so  the  jus- 
tices have  no  such  power."  Then  a  guardian  is  appointed,  and  the 
defendant's  counsel  is  granted  an  adjournment  for  a  conference. 

8  Holbrooke  v.  Dagley,  Croke  Jac.  374. 

8  Hodsman  v.  Grissell,  Noy,  129. 

*  Bacon,  Maxims,  vii. 

BBateson,  Borough  Customs,  I,  82  (Selden  Soc.  Pub.  vol.  XVIII, 
1904)  ;  here  the  later  custumal  exonerates.  The  same  popular  attitude 
seems  to  have  lingered  in  other  countries;  e.g.  in  Japan  the  responsi- 
bility for  accidental  fires  continued,  in  the  rural  communities,  into  the 
present  century;  and  during  a  residence  in  Tokyo  the  writer's  land- 
lord tried  to  have  inserted  in  the  lease  a  clause  making  the  tenant 
responsible  for  all  fires  originating  within  the  house. 

6  Rastell,  Entries,  8. 


512  VII.     TORTS 


salvo  et  secure  custodire  teneatur,  ne  pro  defectu  custodice" 
etc.),  and  from  the  proceedings  in  Beaulieu  v.  Finglam 
( 1400), 1  where  any  question  of  blamableness  is  excluded.2 
The  primitive  idea  is  seen  remaining  in  the  argument  there 
made  and  rejected,  that  "  the  fire  could  not  be  alleged  to  be 
his  fire,  because  a  man  cannot  have  property  in  fire."  ;  In 
Tuberville  v.  Stamp  (1698)4the  old  tradition  was  still  ad- 
hered to  ("be  it  by  negligence  or  by  misfortune,  it  is  all 
one  ")  ;  though  the  intervention  of  a  sudden  wind-storm  was 
treated  as  an  available  excuse. 5  In  1700  6  a  similar  action 
failed,  apparently  only  by  bad  pleading;  but  in  1712 7 
the  responsibility  for  accidental  fires  in  houses  8  was  abolished 
by  the  Legislature. 9 

5.  Keeping  of  Animals.  —  (a)  In  trespasses  of  animals 
by  biting  or  otherwise  wounding,  we  find  the  rule  on  English 
soil  to  be  a  lineal  successor  of  the  form  already  seen  in  the 
North  French  records,1  ° that  the  owner  "did  not  know  the 
animal's  vice."  The  three  writs  in  the  Register1 1  begin  by 
alleging  that  the  defendant  "  quosdam  canes  ad  mordendum 
oves  consuetos  apud  B.  scienter  retinuit,"  "  quondam  canem 

1 2  H.  IV,  18,  pi.  6. 

2  The  case  in  42  Ass.  pi.  9  (1369),  which  the  plaintiff  lost,  in  an  action 
where  the  jury  found  that  the  fire  fuit  suddeinment  illumine,  the  de- 
fendant knowing  nothing,  is  not  conclusive  to  the  contrary;  for    (1)   it 
does  not  appear  that  the  defendant  set  the  fire;  (2)  Rolle  (Abridgment, 
1,  pi.  2)  thinks  the  vi  et  armis  spoiled  the  writ;   (3)   2  H.  IV.,  supra, 
is  unmistakable.     For  other  cases,  see  (1450)  28  H.  VI.  7,  pi.  7;  (1582) 
Anon.,  Croke  El.  10;  and  also  Rolle's  Abr.,  Action  on  the  Case,   (B) 
Fire. 

3  So,  also,  in  Tuberville  v.  Stamp,  "  The  fire  in  his  field  is  his  fire 
as  well  as  that  in  his  house." 

*1  Salk.  13;  Comb.  459;  Skinner,  681;  Carth.  425. 

6  The  doubts  there  expressed  because  the  fire  was  started  in  the  field, 
not  in  the  house,  arose  hardly  from  the  fact  that  the  tradition  dealt 
only  with  fire  in  a  house  (for  the  writ  does  not  betray  this,  nor  does 
Germanic  tradition),  but  from  the  fact  that  it  was  started  by  a  servant, 
and  the  old  rules  about  absolute  responsibility  for  deeds  done  in  the 
house  and  by  the  household  became  the  source  of  confusion. 

6  Allen  v.  Stephenson,  1  Lutwych  36. 

7 10  Anne,  c.  14,  s.  1. 

8  Extended  by  14  G.  III.  c.  78,  s.  86,  and  7  &  8  Viet.  c.  87,  s.  1,  to 
"  estates." 

"Blackstone  (I,  131)  and  Lord  Lyndhurst  (1  Phill.  Ch.  Cas.  320) 
misunderstood  "accidentally"  to  include  "negligently"  in  these  stat- 
utes. This  was  corrected  by  Philliter  v.  Phippard,  11  Q.  B.  347  (1847)  ; 
Bacon,  Abr.,  Case,  already  had  had  the  right  interpretation. 

10  Ante,  p.  490. 

11  Registrum  Brevium,  110. 


66.     WIGMORE:   TORTIOUS  RESPONSIBILITY  513 

ad  mordendos  homines  consuetum 1  apud  L.  scienter  retinuit," 
"  quondam  aprum  ad  percutiendum  animalia  consuetum  apud 
W.  scienter  retinuit."  2  Sometimes,  especially  for  dogs,  we 
find  a  modification  of  the  old  rule,  the  same  in  idea  though 
somewhat  different  in  form,  intimating  that  liability  ensued 
where  the  vice  and  the  knowledge  could  not  be  shown,  if  the 
owner  incited  the  animal  to  the  trespass  ; 3  i.e.  the  same  broad 
idea,  of  Command  or  Assent,  as  in  the  case  of  servants.  The 
rule  remained  on  this  basis  for  several  centuries, 4  though  the 
form  of  the  usual  writ  seems  to  have  changed  slightly.  5  By 
Lord  Holt's  time  it  was  found  desirable  to  rule  that  a  scienter 
was  not  necessary  in  the  case  of  animals  "  naturally  mischie- 
vous in  their  kind ;  "  6  and  his  admirably  concise  statement  of 

1  The  writ  reads  "  mordendwm "  and  "  consuetos/'  and  the  termina- 
tions should  apparently  be  exchanged. 

2  Compare   Selden   Soo.   vol.   IV,   Court   Baron,    131    (1320) :   "  [The 
jurors  present]  that  the  said  John  the  Swineherd  has  a  dog  which  ate 
a  rabbit  of  the  lord  .  .  .  And  that  a  dog  of  the  Vicar  often  chases 
hares   in   the   field    (fine   3d.)   ...  And   that   the    dog   of   John    Mani- 
mester  chased   a  sow  of  John  Albin,  so  that  he  lost  her  pig,  to  his 
damage,  taxed  at  18dv  which  the  Court  awards,  etc.,  and  John  Mani- 
mester  is  in  mercy  (6d.)»"  also  ib.  p.  52.     Here  it  seems  that  there  was 
not  always  an  allegation  of  the  scienter,  or  even  of  the  habit,  in  these 
lower  courts. 

'Britton  (Nichols'  ed.)  I,  15:  "Let  it  be  inquired  ...  [if  the  kill- 
ing was]  by  a  beast,  whether  by  a  dog  or  other  beast,  and  whether  the 
beast  was  set  on  to  do  it  and  encouraged  to  do  such  mischief,  or  not, 
and  by  whom,  and  do  of  all  the  circumstances."  Fitzherbert,  Natura 
Brevium,  Trespass,  89,  L:  "And  if  a  man  do  incite  or  procure  his 
dog  to  bite  any  man,  he  shall  have  an  action  of  trespass  for  the  same ; " 
following  a  writ  for  inciting  dogs  to  bite  sheep.  In  3  Edw.  Ill,  3,  7 
(1330),  a  bill  lays  the  "incitement"  of  the  dogs  to  bite  the  sheep. 
See  also  13  H.  VII,  15,  pi.  10  (1498). 

4  Buxendin  v.  Sharp,  2  Salk.  662   (1697)  ;  s.  c.  Bayntine  v.  Sharp,  1 
Lutw.  36;  Smith  v.  Pelah,  2  Stra.  1264  (1747).     In  Millen  v.  Fandrye, 
the  Court  seem  to  have  had  in  mind  mainly  the  land-trespass  of  the 
dog  (Popham,  161).    See  Laws  and  Liberties  of  Mass.  (1648),  "Sheep" 
(Whitmore,  191):  "If  any   dog  shall  kill  any  sheep,  the   owner  shall 
either  hang  such  dog  or  pay  double  damages   for  the  sheep;    and  if 
any  dog  hath  been  seen  to  course  or  bite  sheep  before,  not  being  set 
on,  and  his  owner  hath  had  notice  thereof,  then  he  shall  both  hang  his 
dog  and  pay  for  such  sheep ; "  re-enacted  in  General  Laws  of  1672,  s.  v. 
Probably  in  England,  as  here,  the  claim  might  always  be  based  either 
on  the  habit  plus  the  scienter,  or  merely  on  an  incitement. 

5  "Quod  retinuit  quondam  canem  sciens  canem  predictum  ad  mor- 
dendum  oves  consuetum." 

6  1700,  Mason  v.  Keeling,  12  Mod.  332,  Holt,  C.  J.:  "If  they  are  such 
as  are  naturally  mischievous  in  their  kind,  he  shall  answer  for  hurt  done 
by  them  without  any  notice;    but  if  they  are  of  a  tame  nature,  there 
must  be   notice  of  the  ill   quality."     The  restriction   of  this   rule   to 
"things  in  which  he  has  no  valuable  property,"   and  the  application 


514  VII.     TORTS 


the  rule  has  since  prevailed,  giving  Courts  nothing  to  do  but 
apply  it  to  varying  circumstances;   though  even  in  this  ap-. 
parently  simple  task  they  have  sometimes  found  that  they 
had  an  elephant  on  their  hands. l 

(b)  But  for  land-trespasses  of  animals  the  old  strict  lia- 
bility continued  in  full  force.  Some  indications  appear  of  a 
tendency  to  impose  a  greater  penalty  for  trespasses  repeated 
after  a  first  trespass  has  occurred;2  but  no  such  relaxation 
seems  to  have  maintained  itself,3  and  the  principle  was  kept 
that  "  a  man  should  so  occupy  his  common  that  he  does  no 
wrong  to  another  man."  4  In  modern  times,  as  we  shall  see* 
this  rule  has  been  rationalized  with  others  under  the  principle 
that  those  who  keep  things  likely  to  do  mischief  keep  them  at 
their  peril.6  There  were  but  two  modifications  made.  One 
was  the  decision,  in  a  solitary  case,  that  in  turning  the  plough 
on  adjoining  land  (as  custom  allowed)  the  owner  was  not 
liable  for  the  trespass  of  the  oxen  in  snatching  a  mouthful 

of  a  stricter  rule  to  things  in  which  he  has  a  "valuable  property,'* 
seems  to  have  been  a  passing  invention  of  Holt,  C.  J.,  in  distinguish- 
ing the  rule  as  to  cattle's  trespasses  on  realty,  and  has  no  support  in 
preceding  literature.  But  it  may  have  been  inspired,  as  Mr.  Justice 
Holmes  suggests,  by  the  old  idea,  already  noticed,  that  animals  let 
loose  could  not  bring  home  responsibility  to  their  former  owner  (The 
Common  Law,  22). 

It  is  necessary  to  express  surprise  at  the  insufficient  historical  treat- 
ment of  this  topic  in  Mr.  T.  Seven's  article  on  "  The  Responsibility  at 
Common  Law  for  the  keeping  of  Animals"  (Harvard  Law  Review, 
1909,  XXII,  465).  The  learned  writer's  inattention  to  the  distinction 
between  trespasses  by  biting  or  wounding  and  trespasses  q.  c.  f.  ex- 
plains in  part  his  misunderstanding  of  the  precedents. 

^ilburn  v.  People's  Palace  Co.,  L.  R.  25  Q.  B.  D.  258  (1890), 
where  an  elephant  escaped. 

2  See  Laws  of  Ine,  c.  49. 

8 Fitzherbert,  Natura  Brevium,  "Trespass,"  87  A;  Selden  Soc.  vol. 
II,  Manorial  Courts,  I,  9:  "Hugh  Tree  is  in  mercy  for  his  beasts 
caught  in  the  lord's  garden.  Pledges,  Walter  of  the  Hill  and  William 
Slipper.  Fine,  6d."  Accord.,  pp.  7,  10,  12,  13,  15,  18,  37,  90,  183;  also 
114:  "one  sow  and  five  small  pigs  of  John  William's  son  entered  tHe 
court-yard  of  Bartholomew  Sweyn  and  did  damage  among  the  leeks 
and  cabbages.  .  .  .  Therefore  let  John  make  satisfaction  to  him  for  the 
said  2d.  and  be  in  mercy  for  his  trespass."  These  cases  date  from  1247 
to  1294.  Add  Y.  B.  27  Ass.  14,  pi.  56  (1354). 

4Y.  B.  20  Ed.  IV,  pi.  10  (1481);  "Doctor  and  Student,"  I.  9 
(Muchall's  ed.,  31)  (1518):  "Every  man  is  bound  to  make  recompense 
for  such  hurt  as  his  beasts  shall  do  in  the  corn  or  grass  of  his  neigh- 
bour, though  he  know  not  that  they  were  there;"  under  the  head  of 
things  which  are  doubtful  upon  the  law  of  reason.  Noy,  Maxims,  c.  44 
(1642),  borrows  the  same  language. 

6  Blackburn,  J.,  in  Fletcher  v.  Rylands,  post. 


66.     WIGMORE:   TORTIOUS   RESPONSIBILITY  515 

of  grass,  since  "  a  man  cannot  at  all  times  govern  them  as 
he  will ;  "  here  the  existence  of  such  a  custom  was  held  a  neces- 
sary element  in  the  exemption.1  The  other  was  the  exemp- 
tion from  trespasses  of  cattle  who  wander,  when  driven  along 
the  highway  lawfully,  provided  the  driver  is  present  and  not 
in  fault  and  makes  fresh  pursuit. 2  This  seems  at  first  to  have 
been  granted  in  cases  where  the  plaintiff  was  bound  by  custom 
to  fence  along  the  highway ; 8  but  in  the  1800s  this  limitation 
disappeared,  and  such  a  duty  now  seems  to  play  no  part;4 
so  that  an  English  Court  will  now  go  so  far  as  to  exempt  the 
driver  (barring  negligence)  of  the  bull  who  breaks  into  the 
traditional  china-shop, 5  —  thus  bringing  true  the  law  laid 
down  by  Doddridge,  J.,  in  1605, 6  which,  however,  was  prob- 
ably not  yet  law  in  his  day.  7 

With  this  history  for  the  rule,  it  is  in  appearance  strange 
that  it  should  not  have  been  applied  equally  to  dogs  as  to 
other  animals.  The  explanation  seems  to  be  that  in  the  Ger- 
manic days,  from  which  the  traditions  come  down,  the  dog 
was  not  a  domesticated  animal,  —  was  only  a  half-savage 
hanger-on  in  the  human  communities,  as  he  is  to-day  in  many 
parts  of  the  world.  Belonging  to  nobody,  nobody  was  re- 
sponsible for  him;8  and  by  the  time  man's  relation  to  him 
could  be  said  as  a  usual  thing  to  be  one  of  control  or  posses- 
sion, the  tradition  was  all  against  making  his  owner  respon- 
sible (barring  wilfulness)  for  his  trespasses  to  land.  Such 


1 Y.  B.  22  Ed.  IV,  8,  pi.  24  (1483).  But  compare  also  2  Rolle's  Abr. 
566  (1618):  "If  a  man  has  a  road  along  my  land  for  his  beasts  to  pass, 
and  the  beasts  eat  the  grass  in  morsels  in  passing,  this  is  justifiable;" 
adding,  "this  is  to  be  understood  as  done  against  his  will." 

*Y.  B.  10  Ed.  IV,  7,  pi.  19  (1471);  Y.  B.  15  H.  VII,  17,  pi.  13 
(1502),  semble;  Fitzherbert,  Natura  Brevium,  128,  notes. 

8  Rastel's  Entries,  621,  and  cases  just  cited;  Dovaston  v.  Payne,  2 
H.  Bl.  527  (1795).  It  was  always  an  excuse  that  the  plaintiff  was 
bound,  by  agreement  or  by  custom,  to  fence  against  the  defendant;  and 
the  modification  in  question  was  apparently  treated  as  merely  one 
phase  of  this,  the  plaintiff  being  bound  by  custom  to  fence  against  the 
highway. 

*  Goodwyn  v.  Cheevely,  28  L.  J.  Exch.  298. 

6Tillett  v.  Ward,  L.  R.  10  Q.  B.  D.  17  (1882). 

"Millen  v.  Fandrye,  Popham  161:  "A  man  is  driving  cattle  through 
a  town,  and  one  of  them  goes  into  another  man's  house,  and  he  follows 
them,  trespass  does  not  lie  for  this." 

TDanby  and  Moyle,  JJ.,  in  10  Ed.  IV,  7,  pi.  19  (1471). 

8  Trained  hunting-dogs  and  the  like  were  the  exception. 


516  VII.     TORTS 


seems  to  have  been  the  judicial  attitude  up  to  this  century,1 
and  not  by  any  means  on  grounds  of  tradition  merely ;  but 
although  Victoria  has  reached  a  different  result,2  and  al- 
though in  this  country  Dog  Acts  have  dealt  decisively  with 
the  acts  of  a  dog,  the  law  of  England  on  the  subject  cannot 
yet  be  said  to  be  declared.  3 

6.  Sundry  Acts;  Acts  at  Peril.  We  have  now  traced  down 
to  modern  times  sundry  doctrines  of  Responsibility  in  the 
typical  classes  of  acts  found  expressly  regulated  in  the  primi- 
tive law ;  and  everywhere  there  has  been  more  or  less  rational- 
ization of  the  rules.  In  some  classes  (e.g.  keeping  cattle) 
the  duty  is  made  an  absolute  one  for  all  in  similar  situations ; 
in  others  the  question  of  culpability  is  reopened  as  to  due 
care  in  each  case  on  its  circumstances;  but  in  all  there  has 
come  to  be  assumed  some  degree  of  fault  sufficient  to  amount 
to  culpability.  There  are,  however,  numbers  of  acts  not  fall- 
ing under  the  classes  above  traced ;  and  the  question  arises, 
What  has  been,  historically,  the  canon  of  Responsibility  with 
reference  to  these  ?  When  did  the  Courts  in  these  cases  begin 
to  base  an  action  upon  negligence  alone,  or  upon  some  other 
test?  We  are  here  brought  to  the  subject  of  the  history  of 
the  Action  on  the  Case  for  Negligence,  so-called.  But  this  is 
an  inquiry  too  complex  to  be  here  taken  up  ;  a  summary  refer- 
ence to  its  probable  history  must  here  suffice.  Looking,  then, 
at  these  sundry  injuries  (other  than  the  above  classes)  as  the 
Courts  of  several  centuries  ago  must  be  imagined  to  have  ap- 
proached them,  we  find  that  they  would  probably  have  pre- 
sented themselves  in  one  of  three  aspects:  (1)  There  was  as 
early  as  the  1600s,  and  probably  earlier,  a  principle  that  one 
who  did  an  unlawful  act  (or  one  who  committed  a  trespass) 

1Millen  v.  Fandrye,  Popham  161  (1605);  Beckwith  v.  Shordike,  4 
Burrow  2092  (1767);  Brown  v.  Giles,  1  C.  &  P.  118  (1823). 

8  Doyle  v.  Vance,  6  Viet.  L.  R.   (Law)  87   (1880). 

8  Read  v.  Edwards,  18  C.  B.  N.  s.  260  (1864). 

On  the  general  subject,  a  comparison  of  the  Colonial  law  is  inter- 
esting: 1646-1660,  Laws  and  Liberties  of  Mass.,  "Cattle,"  (Whitmore's 
ed.  131 )  ;  the  common-law  rule  is  changed,  and  the  owner  of  land  must 
fence  it  against  "great  cattle;"  but  the  scienter  analogy  is  adopted 
for  the  new  rule;  "nor  shall  any  person  knowing,  or  after  due  notice 
given,  of  any  beast  of  his  to  be  unruly  in  respect  of  fences,  suffer  such 
beast  to  go  ...  without  such  shackles  or  fetters  as  may  restrain  and 
prevent  trespass ; "  but  "  for  all  harms  done  by  goates  there  shall  be 
double  damages  allowed." 


66.     WIGMORE:   TORTIOUS   RESPONSIBILITY  517 

was  liable  for  all  the  consequential  damage,  when  properly 
alleged  as  special  damage.1  (2)  The  principle  sic  utere  tuo 
ut  alienum  non  Icedas  was  early  familiar  to  the  judges,  and 
can  clearly  be  traced  even  where  it  is  given  an  English  garb.2 
This  was  generally  employed  to  cover  the  case  of  an  injury 
caused  by  acts  done  on  one's  own  land,  but  it  was  sometimes 
extended  to  cover  the  case  of  injuries  by  cattle.  (3)  For 
harm  caused  by  a  mere  non-feasance,  including  many  cases 
which  we  now  subsume  under  Negligence,  probably  no  action 
would  lie.3  The  word  negligentia,  as  used  in  earlier  times, 
meant  apparently  (as  has  been  seen  in  the  action  for  fire) 
merely  "  failure  to  do  "  a  duty  already  determined  to  exist ; 
thus,  though  the  Courts  constantly  said  that  "  a  man  is  bound 
to  keep  his  cattle  in  at  his  peril,"  he  is  sometimes  said  to  be 
held  for  "  def aut  de  bon  garde,"  4  —  meaning,  not  careless 
keeping,  but  merely  failure  to  keep  as  bound ;  and  the  mis- 
apprehension of  this  was  probably  the  source  of  Blackstone's 
well-known  misstatement  that  the  action  was  for  "  negligently 
keeping"  his  cattle.5  It  seems,  then,  that  the  action  on  the 
case  based  on  a  mere  negligent  doing  was  of  little  or  no  conse- 
quence until  the  1800s,6  and  that  it  then  came  about  partly 

1 1699,  Parkhurst  v.  Foster,  1  Ld.  Raym.  479 ;  trespass  against  a  con- 
stable for  billeting  a  dragoon  upon  him,  and  forcing  him  to  find  meat, 
drink,  etc.;  the  jury  found  that  the  dragoon  was  the  one  who  forced 
the  plaintiff,  etc.;  Holt,  C.  J.:  "At  common  law,  if  a  man  does  an  un- 
lawful act,  he  shall  be  answerable  for  the  consequences  of  it,  especially 
where,  as  in  this  case,  the  act  is  done  with  intent  that  consequential 
damage  shall  be  done."  1773,  Nares,  J.,  and  Gould,  J.,  in  Scott  v. 
Shepherd,  2  Wm.  Bl.  893:  "Wherever  a  man  does  an  unlawful  act,  he 
is  answerable  for  all  the  consequences."  See  also  Courtney  v.  Collet, 
1  Ld.  Raym.  272  (1698);  Reynolds  v.  Clarke,  1  Stra.  634  (1722). 

2  Brian,  J.,  in  20  Ed.  IV,  10,  pi.  10  (1481):  "A  man  should  so  occupy 
his  common  that  he  does  no  wrong  to  another  man."     Holt,  C.  J.,  in 
Tenant  v.  Goldwin,  2  Ld.  Raym.  1089    (1705):  "Every  man  must  so 
use  his  own  as  not  to  do  damage  to  another ; "  and  also  in  Tuberville 
v.  Stamp,  1  Salk.  13  (1698).     Gibbs,  C.  J.,  in  Sutton  v.  Clarke,  6  Taunt. 
29  (1815),  approves  this  argument  of  counsel:  "An  individual  is  bound 
so  to  restrain  the  exercise  of  his  rights  over  his  own  land  that  he  may 
not  thereby  injure  his  neighbor." 

3  Compare  the  hesitation  in  granting  assumpsit  for  a  non-feasance. 

4  27  Ass.   141,  pi.  56.     See  also  the  action   for  keeping   a  ferocious 
dog,   where  "pro   defectu   curae "  is   a  part  of  the   declaration,   as  in 
Mason  v.  Keeling,  12  Mod.  332. 

6 Commentaries,  III,  211.  Compare  the  sense  of  "negligence"  in 
the  precedents  in  Comyn's  Digest,  Action  on  the  Case  for  Negligence. 

6  In  Mitchil  v.  Alestree  (1677),  e.g.,  the  declaration  alleged  "  impro- 
vide  et  absque  debita  consideratione  ineptitudinis  loci;"  but  this  alle- 


518  VII.     TORTS 


through  the  principle  of  consequential  damage  noted  above, 
and  partly  through  the  growing  application  of  the  test  of 
negligence  in  Trespass,  as  already  indicated.  But  this  sug- 
gestion is  merely  one  made  in  passing ;  the  essential  point  to 
note  is  that  certain  of  the  cases  we  have  studied  historically 
had  become,  in  the  1800s,  amenable  to  a  generic  test  of  Neg- 
ligence, or  Due  Care  under  the  Circumstances,  which  had 
somehow  come  to  be  applied  to  some  other  cases  also.  What 
we  have  still  to  notice  is  the  fate  of  those  remaining  classes 
of  cases  which  never  became  amenable  to  this  test  of  Due  Care 
under  the  Circumstances. 

Briefly,  they  wandered  about,  unhoused  and  unshepherded, 
except  for  casual  attention,  in  the  pathless  fields  of  jurispru- 
dence, until  they  were  met,  some  forty  years  ago,  by  the 
master-mind  of  Mr.  Justice  Blackburn,  who  guided  them  to 
the  safe  fold  where  they  have  since  rested.  In  a  sentence 
epochal  in  its  consequences  this  judge  co-ordinated  them  all 
in  their  true  category :  — 

"  There  does  not  appear  to  be  any  difference  in  principle  be- 
tween the  extent  of  the  duty  cast  on  him  who  brings  cattle  on  his 
land  to  keep  them  in  and  the  extent  of  the  duty  imposed  on  him 
who  brings  on  his  land  water,  filth,  or  stenches,  or  any  other 
thing  which  will,  if  it  escape,  naturally  do  damage,  to  prevent 
their  escaping  and  inj  uring  his  neighbor ;  .  .  .  the  duty  is  the 
same,  and  is  to  keep  them  in  at  his  peril."1 

It  is  not  that  the  phrase  "  at  peril "  was  a  novel  one.  On 
the  contrary,  it  is  an  indigenous  one  and  a  classical  one  in 
our  law. 2  Nor  is  it  that  no  previous  attempt  had  been  made 

gation  plays  little  part  in  the  decision  (2  Lev.,  172,  alone  has  it),  and 
the  whole  case  is  approached  in  a  very  different  way  from  our  negli- 
gence cases  of  to-day. 

'Fletcher  v.  Rylands,  L.  R.  1  Exch.  at  282   (1866). 

8 Littleton,  J.,  in  10  Ed.  IV,  7,  pi.  19:  "It  is  at  the  peril  of  him  who 
drives;"  Doctor  and  Student,  II,  16  (p.  149):  "When  a  man  buyeth 
land  or  taketh  it  of  the  gift  of  any  other,  he  taketh  it  at  his  peril;" 
ib.  II,  27  (pp.  191,  192);  Mitchil  v.  Alestree,  in  3  Keb.  650:  "Per 
Curiam:  It's  at  peril  of  the  owner  to  take  strength  enough  to  order 
them ; "  Holt,  C.  J.,  in  Anon,  12  Mod.  342 ;  keeping  gunpowder ;  action 
for  nuisance;  "It  would  be  at  peril  of  builder;"  Nares,  J.,  in  Parsons 
v.  Loyd,  3  Wils.  346:  "Every  plaintiff  sues  out  process  at  his  peril." 
Martin,  B.,  had  already  phrased  the  same  idea  in  a  little  different 
form:  (1856)  Blyth  v.  Waterworks  Co.,  11  Exch.  781,  during  argu- 
ment: "  I  held,  in  a  case  tried  at  Liverpool,  in  1853,  that  if  locomotives 


66.     WIGMORE:   TORTIOUS  RESPONSIBILITY  519 

at  such  a  co-ordination  of  these  kindred  instances ;  for  sev- 
eral such  attempts,  of  more  or  less  insight  and  conviction, 
may  be  found.1  What  gave  the  exposition  on  this  occasion 
its  novelty  and  its  permanent  success  was  the  broad  scope  of 
the  principle  announced,  the  strength  of  conviction  of  its  ex- 
pounder, and  the  clearness  of  his  exposition,  and  perhaps, 
too,  the  fact  that  the  time  was  ripe  for  its  acceptance.2  It 
caught  up  and  reconciled  the  absolute  liabilities  already  predi- 
cated, as  well  in  the  two  rules  just  above  mentioned  (conse- 
quential damage  of  an  unlawful  act,  and  "  so  use  your  own 
as  not  to  injure  another's")  as  in  the  remaining  rules  for 
trespasses  by  acts  done  "  at  peril  "  (keeping  cattle,  shooting 
guns  under  certain  circumstances,  and  others  already  men- 
tioned) ;  it  furnished  a  general  category  in  which  all  such 
rules,  whenever  formed,  could  be  placed.  The  full  scope  of 
the  principle  has  since  not  always  been  perceived  in  individual 
instances;  and  Courts  may  differ,  and  have  differed,  as  to 
whether  particular  acts  (e.  g.  keeping  reservoirs)  should,  in 
policy,  have  the  principle  applied  to  them.3  But  the  practi- 
cal effect  of  that  great  jurist's  opinion  has  been  to  furnish 

are  sent  through  the  country  emitting  sparks,  the  persons  doing  so 
incur  all  the  responsibilities  of  insurers;  that  they  were  liable  for  all 
the  consequences,"  citing  Lambert  v.  Bessey;  and  in  Fletcher  v.  Ry- 
lands,  3  H.  &  C.  793  (lower  Court),  he  speaks  of  "  quasi-insurers." 

1Holt,  C.  J.,  in  Mason  v.  Keeling,  12  Mod.  332  (1700),  and  Tenant  v. 
Goldwin,  2  Ld.  Raym.  1089  (1705);  Cockburn,  C.  J.,  in  Vaughan  v. 
Taff  Vale  R.  Co.,  5  H.  &  N.  679  (1850)  ;  and  counsel  in  a  few  prior 
cases. 

3  Supplementing  Lord  Blackburn's  judicial  utterance,  the  theoretical 
exposition  of  Mr.  Justice  Holmes,  in  cc.  Ill  and  IV  of  "  The  Common 
Law,"  has  served  more  than  anything  else  to  commend  and  establish 
the  distinction.  It  has  been  accepted  also  by  Sir  Frederick  Pollock, 
in  his  "Torts,"  p.  17  (apparently),  and  by  Mr.  (now  Justice)  Wm. 
Schofield,  formerly  instructor  in  Torts  in  the  Harvard  Law  School,  in 
1  Harv.  Law  Rev.  52. 

3  It  is  sometimes  said,  for  instance,  that  Fletcher  v.  Rylands,  is 
"not  law"  in  America  or  in  this  or  that  State.  But  such  statements 
fail  to  distinguish  between  (1)  the  acceptance  of  Lord  Blackburn's 
principle  above,  and  (2)  its  application  to  the  specific  facts  in  Fletcher 
tJ.  Rylands.  The  principle  is  sanctioned,  in  one  way  or  another,  con- 
sciously or  unconsciously,  in  every  court  of  the  country.  But  (a)  it 
is  not  invariably  held  to  control  in  cases  having  facts  like  Fletcher  v. 
Rylands;  and  (b)  the  tendency  may  perhaps  be  said  to  be  in  many 
States  to  restrict  to  as  few  as  possible  the  classes  of  situations  to  be 
governed  by  the  principle.  An  example  of  the  latter  attitude  is  found  in 
the  masterly  opinion  of  Mr.  Justice  Doe,  in  Brown  v.  Collins,  53  N. 
H.  442. 


520  VII.     TORTS 


us  with  four  main  categories  of  voluntary  acts  from  which 
may  arise  a  question  of  Responsibility  for  a  specific  harm, 
viz.  (1)  acts  done  wilfully  with  reference  to  that  harm;  (2) 
acts  done  at  peril  with  reference  to  that  harm  ;  (3)  acts  done 
negligently  with  reference  to  that  harm;  (4)  acts  done  non- 
negligently  with  reference  to  that  harm.  In  point  of  theory, 
the  second  and  the  fourth  can  best  be  regarded  as  subdivi- 
sions of  the  third. 1  But  at  any  rate  all  four  are  nowadays 
kept  separate  by  rules  of  law.  We  had,  at  the  times  of  the 
Conquest,  two  categories  only,  —  acts  wilful  and  acts  of 
misadventure,  —  and  these  scarcely  distinguishable  civilly. 
To-day,  with  the  process  of  rationalization  nearly  accom- 
plished, we  find  these  transmuted  to  four,  —  a  differentiation 
which  is  in  scope  and  conscious  significance  novel  to  the  past. 

Ill 

7.  Harm  Done  by  Servants  and  other  Agents:  1300-1850. 
It  remains  to  trace  the  test  of  master's  responsibility  for  the 
tortious  acts  of  persons  in  his  service.  In  the  first  part  of 
this  Essay  we  found  that  in  the  primitive  Germanic  idea  the 
master  was  to  be  held  liable  absolutely  for  harm  done  by  his 
slaves  or  servants ;  that,  in  later  Germanic  times,  the  master 
could  exonerate  himself  by  surrendering  the  offending  person, 
and  at  the  same  time  taking  an  exculpatory  oath,  "  se  in  hoc 
non  conscium  esse,"  "  quod  pura  sit  conscientia  sua ;  "  that, 
on  English  soil,  in  the  early  Anglo-Norman  period  this  idea 
of  responsibility  appeared  in  the  shape  of  exoneration  for 
deeds  of  the  servant  not  commanded  or  consented  to  ;  but  that 
in  that  period  the  test  of  Command  or  Consent  had  hardly 
begun  to  be  applied  to  responsibility  in  what  we  now  term 
its  civil  aspect, 2  and,  while  common  in  penal  matters,  was  by 
no  means  fixed  in  its  scope.  The  subsequent  development  of 
the  idea  we  may  now  take  up  in  three  stages:  A.  the  period 
beginning  with  Edward  Fs  time,  1300  circa;  B.  the  period 

'See  the  writer's  articles  on  the  theory  of  Torts,  in  VIII  Harvard 
Law  Review  200,  377. 

2  We  find  as  late  as  Finch's  Law  (1654;  ed.  1759,  p.  198)  the  state- 
ment, "trespass  is  a  criminal  offence  punishable  by  a  fine  unto  the 
king;"  and  it  is  perhaps  unsafe  to  draw  any  fixed  distinction  of 
"civil"  and  "criminal"  in  the  present  connection  till  the  seventeenth 
century. 


66.     WIGMORE:   TORTIOUS   RESPONSIBILITY  521 

beginning  with  Lord  Holt's  time,  1700  circa;  C.  the  period 
beginning  with  Lord  Kenyon's  time,  1800  circa.  Speaking 
provisionally  and  roughly,  these  stages  stand  for  the  follow- 
ing phases:  (1)  the  extension  of  the  Command  or  Consent 
test  to  civil  responsibility;  (2)  the  test  of  Implied  Command 
from  General  Authority;  (3)  the  test  of  Scope  of  Authority 
or  Course  of  Employment.  We  may  now  take  up  the  evidence 
of  this  development. 

A.  A.  D.  1300-1700.  It  will  be  apparent  to  one  who  stud- 
ies the  following  cases  that  for  a  century  or  so  the  under- 
current of  feeling  was  still  that  the  master  bore  absolute  civil 
responsibility  for  his  servant's  doings ;  that  the  extension  of 
the  Command  test  had  to  make  its  way  against  what  may  be 
called  the  presumption  to  the  contrary,  and  that  it  came  first 
in  cases  (such  as  fraud)  more  nearly  related  to  the  sort  of 
conduct  to  which  it  was  already  recognized  to  apply,  i.  e. 
morally  reprehensible,  criminal  acts ;  and  that  it  can  hardly 
be  found  to  be  accepted  as  a  general  rule  in  trespass,  etc., 
until  early  in  the  sixteenth  century : 

1302,  Y.  B.  30-31  Ed.  I,  532  (Rolls  ed.).  —  Hugo  is  charged 
with  rape.  Duodecim:  "  Nos  dicimus  quod  ipsa  rapiebatur  vi  per 
homines  domini  Hugonis."  Justiciarius:  "  Fuitne  Hugo  con- 
sentiens  ad  factum  vel  non?"  Duodecim:  "  Non."  .  .  .  Jus- 
ticiarius: "  Hugo,  quia  ipsi  vos  acquietant,  nos  vos  acquietamus." 

1302,  Y.  B.  30-31  Ed.  I,  203  (Rolls  ed.).  — A  poor  woman 
complained  of  frequent  distresses  by  B.  The  inquest  "  said  that 
the  woman's  son,  who  was  of  her  mainpast  [household],  had  done 
damage  in  B.'s  wood."  Berrewik,  J.:  "  And  inasmuch  as  he  did 
wrong  to  distrain  the  woman  for  [the  deed  of]  her  mainpast," 
B.  was  found  guilty. 

1305,  33  Ed.  I,  474  (Rolls  ed.).  —  Writ  of  covenant  by  Henry 
de  Bray,  a  tenant  against  his  landlord,  a  knight,  for  disseisin. 
The  inquest  founded  that  the  knight's  lady  had  come  with  her 
friends,  and  the  plaintiff,  departing  in  fear,  left  her  in  posses- 
sion "  without  that  Master  Henry  was  ousted  by  the  knight  him- 
self or  his  counsel."  The  Court  held  that,  "  inasmuch  as  the 
deed  of  the  wife  is  the  deed  of  the  husband,  it  is  awarded  that 
Master  Henry  recover  these  damages  of  100  marks."1 

1  For  the  husband's  responsibility  for  his  wife  in  the  borough  courts, 
see  Bateson's  Borough  Customs,  I,  pp.  223,  224,  II,  Introd.  pp.  111- 
114  (Selden  Soc.  Pub.  vols.  XVIII,  1904,  and  XXI,  1906). 


522  VII.     TORTS 


1353,  St.  27  Ed.  Ill,  2,  c.  19. —  "  No  merchant  nor  other,  of 
what  condition  that  he  be,  shall  lose  or  forfeit  his  goods  nor 
merchandizes  for  the  trespass  and  forfeiture  of  his  servant,  un- 
less he  do  it  by  the  command  or  procurement  of  his  master,  or 
that  he  hath  offended  in  the  office  in  which  his  master  hath  set 
him,  or  in  other  manner  that  the  master  be  holden  to  answer  for 
the  deed  of  his  servant  by  the  law  merchant,  as  elsewhere  is  used." 
(Apparently  this  is  the  first  positive  modification  in  civil  mat- 
ters. Here,  as  often  elsewhere,  mercantile  convenience  is  earliest 
in  calling  for  new  adjustments.) 

1401,  Beaulieu  v.  Finglam,  Y.  B.  2  H.  IV,  18,  pi.  6.  —  Action 
for  damage  caused  by  the  defendant's  fire.  Markham,  J. :  "A 
man  is  held  to  answer  for  the  act  of  his  servant  or  of  his  guest 
in  such  a  case;  for  if  my  servant  or  my  guest  puts  a  candle  on 
a  beam,  and  the  candle  falls  in  the  straw  and  burns  all  my  house, 
and  the  house  of  my  neighbor  also,  in  this  case  I  shall  answer 
to  my  neighbor  for  the  damage  which  he  has,  quod  concedebatur 
per  curiam."  Hull,  for  the  defendant:  "  That  will  be  against 
all  reason  to  put  blame  or  default  in  a  man  where  there  is  none 
in  him;  for  negligence  of  his  servants  cannot  be  called  his  fea- 
sance."  Then  the  traditional  misfortune-liability  is  cited  in  re- 
ply. Then  Markham,  J.  :•  "  I  shall  answer  to  my  neighbor  for 
him  who  enters  my  house  by  my  leave  or  my  knowledge,  or  is  en- 
tertained by  me  or  by  my  servant,  if  he  does,  or  any  one  of  them 
does,  such  a  thing  .  .  .  ;  but  if  a  man  from  outside  my  house, 
against  my  will,  puts  the  fire  .  .  .  for  that  I  shall  not  be  held 
to  answer  to  them,  etc.,  for  this  cannot  be  said  to  be  through 
ill-doing  on  my  part,  but  against  my  will."  1 

14-98,  Y.  B.  13  H.  VII,  15,  pi.  10.  —  "  It  was  held  in  Common 
Bench,  if  my  servant,  against  my  desire,  chases  my  beasts  into 
the  land  of  a  stranger,  I  shall  not  be  punished  for  this,  but  my 
servant ;  otherwise  if  my  beasts  escape  against  my  desire,  for  I 
shall  there  be  punished.  Quaere,  if  I  keep  a  dog,  and  my  servant 
against  my  desire  incites  and  causes  the  dog  to  bite  and  kill  the 
beasts  of  a  stranger,  whether  I  shall  be  punished  for  this." 

1505,  Y.  B.  20  H.  VII,  13,  pi.  23.  —  Trespass  for  false  im- 
prisonment; justification  as  bailiff  by  command  of  the  sheriff 
under  a  writ;  the  sheriff  had  neglected  to  return  the  writ,  and 
this  was  objected  to  as  defeating  the  plea.  Rede,  C.  J.,  "  to  the 
contrary.  For  there  is  no  default  in  the  bailiff.  .  .  .  For  sup- 
pose that  the  master  commands  the  servant  to  distrain,  and  so  he 
does  it  and  takes  [the  distress]  to  his  master,  and  the  master 
misuses  it,  is  it  reason  to  punish  the  servant?  No,  surely;  and 
so  no  more  here.  And  if  the  master  commands  the  servant  to 
distrain,  and  the  servant  does  so,  it  is  not  reason,  if  the  servant 

1  For  this  period,  compare  also  the  practice  in  borough  courts  (Bate- 
son's  Borough  Customs,  II,  Introd.  pp.  40-42). 


66.     WIGMORE:   TORTIOUS  RESPONSIBILITY  523 

misuses  the  distress,  that  the  master  should  be  punished  by  cause 
of  his  command,  which  was  lawful  in  the  beginning;  wherefore, 
on  the  other  hand,  [in  this  case  also]  the  law  should  be  all  one." 

1506,  Y.  B.  21  H.  VII,  22,  pi.  21.  — Same  facts  as  in  20  H. 
VII,  supra;  probably  the  same  case  adjourned.  Rede,  C.  J., 
holding  the  defendant  excused  "  since  every  bailiff  and  every 
servant  is  bound  to  do  the  precept  of  his  master  in  all  that  is 
legal,"  and  showing  that  "there  is  a  defendant  in  his  master, 
in  whom  the  default  is,"  says :  "  As  if  I  command  my  servant  to 
take  a  distress  for  my  rent,  and  he  does  it  and  leads  the  distress 
to  me,  and  I  kill  it,  or  do  other  illegal  thing  with  it,  in  this  case 
the  servant  is  excused ;  and,  on  the  other  hand,  where  I  command 
my  servant  to  take  the  distress  legally,  and  he  rides  on  the  dis- 
tress, in  this  case  he  shall  be  punished,  and  I  excused,  for  that 
when  I  command  him  to  do  a  thing  legally,  and  he  does  contrary 
to  the  commandment,  he  does  a  wrong  to  which  I  did  not  assent 
[agrea]  ;  it  is  reason  to  punish  him  and  to  excuse  me,  and  so 
here.  .  .  ." 

1518,  Doctor  and  Student,  II.,  c.  42  (Muchall's  ed.  233). — 
"  For  trespass  or  battery,  or  wrongful  entry  into  lands  or  tene- 
ments, ne  yet  for  felony  or  murther,  the  master  shall  not  be 
charged  for  his  servant,  unless  he  did  it  by  his  commandment." 

1525  circa.  Treatise  on  Subpoena  (1  Hargreave's  Law  Tracts, 
347)  :  "  Also  if  a  man's  servant  thro'  negligence  of  his  maister, 
tho'  it  be  not  by  his  commandmente  or  assente,  but  for  lacke  of 
correction,  do  offences  and  trespasse  to  his  neighbour,  whereby 
the  master  is  bound  in  conscience  to  make  restitution  if  his  serv- 
ante  be  not  able,  yet  there  lieth  no  subpoena  againste  the  master 
to  compel  him  to  it." 

1606,  Waltham  v.  Mulgar,  Moore,  776.  —  Action  against  the 
owner  of  a  privateer  which  captured  a  friendly  ship.  A  civilian 
solicitor  argued  for  an  absolute  responsibility  of  masters  "  in 
public  affairs."  "  He  who  has  put  a  ship  in  traffic  should  provide 
servants  who  will  not  commit  public  offences."  But  Popham, 
C.  J.,  said:  "  Where  the  master  put  his  servant  to  do  an  illegal 
act,  the  master  shall  answer  for  the  servant  if  he  mistakes  in  the 
doing  of  the  act;  but  where  he  put  his  servant  to  do  a  legal  act, 
as  here  to  take  the  goods  of  the  king's  enemies,  and  he  has  taken 
the  goods  of  friends,  the  master  shall  not  answer.  As  if  one  sent 
his  servant  to  a  market  to  buy  or  sell,  and  he  robs  or  kills  by  the 
way,  the  master  shall  not  answer ;  but  if  he  sets  him  to  beat  some 
one,  and  he  kills  him  or  mistakes  the  person  and  beats  another, 
the  master  is  a  murderer.  So  with  rescous  or  trespass." 

1677,  Michael  v.  Alestree.  —  Action  for  bringing  ungovern- 
able horses  to  be  trained  in  Lincoln's  Inn  Fields,  whereby  the 
plaintiff  was  injured;  the  horses  were  actually  taken  there  by  a 
servant  of  the  defendant.  The  chief  discussion  was  as  to  the 


524  VIL     TORTS 


general  liability  for  so  using  horses.  It  is  then  said,  in  2  Lev. 
172:  "  It  shall  be  intended  that  the  master  sent  the  servant  to 
train  the  horses  there;  "  in  3  Keb.  650,  "  The  master  is  as  liable 
as  the  servant  if  he  gave  order  for  it." 

1685,  Kingston  v.  Booth,  Skinner,  228.  In  an  action  of  tres- 
pass for  assault,  battery,  and  wounding,  "  these  points  were  ruled 
by  three  of  the  justices.  .  .  .  Secondly,  If  I  command  my  servant 
to  do  what  is  lawful,  and  he  misbehave  himself,  or  do  more,  I 
shall  not  answer  for  my  servant,  but  my  servant  for  himself,  for 
that  it  was  his  own  act;  otherwise  it  was  in  the  power  of  every 
servant  to  subject  his  master  to  what  actions  or  penalties  he 
pleased.  Thirdly,  If  I  command  my  servant  to  do  a  lawful  act, 
as  in  this  case  to  pull  down  a  little  wooden  house  (wherein  the 
plaintiff  was  .  .  .)  and  bid  them  take  care  they  hurt  not  the 
plaintiff,  if  in  this  doing  my  servants  wound  the  plaintiff,  in  tres- 
pass of  assault  and  wounding  brought  against  me,  I  may  plead 
not  guilty,  and  give  this  in  evidence,  for  that  I  was  not  guilty 
of  the  wounding,  and  the  pulling  down  the  house  was  a  lawful 
act."  1 

In  view  of  the  almost  uniform  language  of  Courts,  counsel, 
and  text-writers  in  these  records  of  the  1500s  and  1600s,  it 
seems  necessary  to  believe  that  the  test,  as  it  came  to  be  ac- 
cepted in  those  centuries,  was  none  other  than  that  of  Com- 
mand (i.  e.  before  the  deed)  or  Consent  (Assent)  (i.  e.  before 
or  after  the  deed).  In  one  specific  case  it  is  fairly  clear  tbat 
(for  reasons  already  seen2)  the  old  strict  liability  continued 
down  through  the  1600s,  viz.,  the  case  of  a  fire  started  by  the 
servant  within  the  house.  But  apart  from  this  exceptional 
case,  and  possibly  one  or  two  others  involving  the  persistence 
of  extraneous  traditions,  it  may  be  inferred  that  the  Com- 
mand or  Consent  test  was  the  natural  and  universal  one. 
Moreover,  it  accords  perfectly  with  the  notions  which  we  have 
found  to  characterize  the  later  Germanic  and  the  early 
Anglo-Norman  periods,  being  the  natural  form  of  their  or- 
derly development. 

Harmonizing  with  and  corroborating  the  general  rule,  are 

lfThe  following  intervening  cases  are  corroborative:  1306,  Y.  B.  34 
Ed.  I,  252  (Rolls  ed.)  ;  1410,  11  H.  IV,  91,  47;  1431,  Y.  B.  9  H.  VI, 
53,  37;  1443,  Y.  B.  21  H.  VI,  39,  6;  1469,  8  Ed.  IV,  17,  24;  1471,  10 
Ed.  IV,  18,  22;  1472,  11  Ed.  IV,  6,  10;  1497,  Keilwey,  3  b;  1618,  South- 
ern v.  How,  2  Rolle's  Rep.  5,  26,  Poph.  143;  1625,  Shelley  v.  Burr, 
1  Rolle's  Abr.  2,  pi.  7;  1630,  Bacon,  Maxims,  XVI;  1641,  Noy,  Max- 
ims, c.  44;  1668,  Cremer  v.  Humberton,  2  Keb.  352. 

'Ante,  p.  511. 


66.     WIGMORE:   TORTIOUS   RESPONSIBILITY  525 

two  subsidiary  rules,  worth  noting  by  way  of  evidence:  (a) 
The  rule  that  the  command  of  the  master  excused  the  servant. 
It  does  not  necessarily  follow,  of  course,  that  where  the  serv- 
ant had  no  command  to  plead  in  excuse,  there  the  master 
would  not  be  liable  (though,  as  above  indicated,  that  was  in 
fact  the  rule)  ;  but  the  cases  on  pleading  a  command  as  an 
excuse  are  useful  in  indicating  how  common  and  natural  that 
test  was,  and  in  thus  corroborating  the  applicability  of  the 
corresponding  test  in  suits  against  the  master.1  (6)  The 
rule  of  pleading  that  the  replication  in  denial  de  injuria  sua 
propria,  when  made  in  answer  to  a  plea  of  justification  as 
servant  under  the  command  of  a  master,  was  proper  only 
where  the  justification  consisted  in  a  command  merely,  with- 
out any  claim  of  interest  in  property  (Crogate's  Case).2 
That  a  master's  command,  as  above  in  («),  was  generally  a 
sufficient  excuse  is  clearly  implied  in  this  rule,  and  we  have 
here  a  corroborative  effect  of  the  same  sort. 

In  the  cases  in  the  1500s  and  1600s  there  further  appears 
the  refinement  which  may  be  termed  the  doctrine  of  Particular 
Command,  i.  e.  the  doctrine  that  the  master,  to  be  liable, 
must  have  commanded  the  very  act  in  which  the  wrong  con- 
sisted (unless  the  command  had  been  to  do  a  thing  in  itself 
unlawful).3  It  was  somewhat  by  way  of  a  reaction  against 
this  refinement  that  the  form  of  the  rule  began  to  change 
under  Lord  Holt ;  and  to  this  next  stage  we  now  come. 

B.  A.  D.  1700-1800.  We  may  here  pause  for  a  moment 
to  consider  the  situation  at  that  time.  It  is  obvious  that  the 
Particular  Command  doctrine,  if  pushed  to  its  logical  extreme 
(as  it  was  apparently  coming  to  be),  must  have  resulted  in 
putting  very  narrow  limits  on  the  principle  of  responsibility 
for  servants'  and  agents'  doings.  The  doctrine  would  re- 

1  Among  the  cases  in  point  may  be  noted    (1441)    19  H.  VI,  50  pi. 
7;    (1463)    2  Ed.  IV,  5,  pi.  10;    (1481)   21   Edw.  IV,  5  pi.  10;    (1678) 
Mod.   244.     This   notion   began   to   be   repudiated 


Mires  v.   Solebay, 

in    (1694)    Sands   v.   Childs,   2   Lev.   351,   and    (1701)    per   Lord   Holt, 

in  Lane  v.  Cotton,  12  Mod.  472,  488. 

8  8  Rep.  66    (1608). 

"Notably  in  Southern  v.  How,  Cremer  v.  Humberton,  Kingston  v. 
Booth,  also  in  Noy  and  Doctor  and  Student,  all  pointing  back  to  the 
idea  in  the  9  H.  VI.  case. 


526  VII.     TORTS 


quire,  in  effect,  that  the  master  should  be  liable  (unlawful 
errands  apart)  only  when  the  deed  in  all  its  details  had  been 
expressly  and  specifically  commanded;  and  the  arguments 
in  Southern  v.  How,1  suggest  the  practical  consequences  of 
such  a  rule.  Now,  whether  or  not  such  a  limited  rule  would 
have  been  desirable,  it  is  certain  that  the  circumstances  of 
the  time  forced  upon  the  judges  a  serious  consideration  of 
the  expediencies  of  such  a  rule.  The  nation  was  reaping  in 
commercial  fields  the  harvest  of  prosperity  sown  in  the  Eliz- 
abethan age  and  destined  to  show  fullest  fruition  in  the  age 
of  Anne.  The  conditions  of  industry  and  commerce  were 
growing  so  complicated,  and  the  original  undertaker  and 
employer  might  now  be  so  far  separated  from  the  immediate 
doer,  that  the  decision  of  questions  of  masters'  liability  must 
radically  affect  the  conduct  of  business  affairs  in  a  way  now 
for  the  first  time  particularly  appreciated.  A  time  had  come 
when  persons  administering  the  affairs  of  others  could  no 
longer  be  classed  indiscriminately  as  "  servants,"  at  the  beck 
and  call  of  the  master  for  each  bit  of  work,  —  a  time  when 
in  social  development  the  position  of  a  factor  or  agent  vested 
with  more  or  less  authority  and  discretion  was  in  fact  no 
longer  that  of  a  servant.2  It  was  therefore  natural  that  the 

1  Cited  supra,  note  1,  p.  524. 

8  Mr.  Justice  Holmes  has  shown  (Harvard  Law  Review,  IV,  361, 
V,  6,  "  Agency ")  how  the  early  law  knows  only  "  servants,"  and  how 
the  **  agent "  is  a  later  branching  off  from  this  class.  The  same  thing 
has  been  additionally  shown  by  Mr.  C.  C.  Allen,  in  the  American  Law 
Review  (XXVIII,  18).  According  to  Murray's  Dictionary,  "agent" 
first  appears  in  the  commercial  sense  in  Marlowe  and  Shakespeare. 
It  may  fairly  be  claimed  that  Shakespeare  has  in  mind  the  rule  of  his 
day  (applying  it,  to  be  sure,  to  a  case  of  moral,  not  legal,  responsi- 
bility) when  he  introduces  the  following  colloquy:  — 

King  Henry  the  Fifth,  IV,  1:  (One  of  the  soldiers  has  been  express- 
ing  forebodings  as  to  the  fatal  outcome  of  the  morrow's  battle)  Will- 
iams: "...  Now  if  these  men  do  not  die  well,  it  will  be  a  black 
matter  for  the  king  that  led  them  to  it.  .  .  ."  King  Henry  (in  dis- 
guise): "So,  if  a  son  that  is  by  his  father  sent  about  merchandise  do 
sinfully  miscarry  upon  the  sea,  the  imputation  of  his  wickedness,  by 
your  rule,  should  be  imposed  upon  the  father  that  sent  him;  or  if  a 
servant,  under  his  master's  command  transporting  a  sum  of  money, 
be  assailed  by  robbers,  and  die  in  many  irreconciled  iniquities  [that  is, 
meet  sudden  death  without  a  chance  to  get  absolution  for  past  sins], 
you  may  call  the  business  of  the  master  the  author  of  the  servant's 
damnation.  But  this  is  not  so;  the  king  is  not  bound  to  answer  the 
particular  endings  of  his  soldiers,  the  father  of  his  son,  nor  the  master 
of  his  servant;  for  they  purpose  not  their  death  when  they  purpose 


66.     WIGMORE:  TORTIOUS  RESPONSIBILITY  527 

judges  should  find  themselves  forced  to  consider  (1)  the 
practical  expediency  of  the  traditional  test  of  liability,  (2) 
if  they  should  revise  it,  the  expression  and  presentation  of 
the  test  as  revised. 

On  the  first  point,  it  is  clear  that  they  did  in  effect  revise 
it.  They  determined  (whether  rightly  or  wrongly  need  not 
be  here  considered)  that  practical  expediency  could  not  put 
up  with  the  logical  consequences  of  the  Particular  Command 
test.1 

As  to  the  second  point,  the  new  phrasing,  there  was  much 
uncertainty  for  a  time,  indeed  for  a  century  or  more;  but 
naturally  enough  the  existing  test  was  laid  hold  of  and  modi- 
fied to  suit  their  needs ;  and  after  all  it  was  in  itself  fairly 
adapted  to  answer  for  the  test  which  they  thought  just.2 
The  test  now  became  what  may  be  termed  the  rule  of  Implied 
Command  from  a  General  Command  or  Authority.  At  the 
same  time,  amid  the  general  reconsideration,  other  phrasings 
of  the  test  were  sometimes  vouchsafed.  "  Whoever  employs 

their  services."  This  is  fairly  an  application  of  the  doctrine  of  Par- 
ticular Command. 

It  seems  that  the  laws  of  Massachusetts  Colony  indicate  a  state  of 
society  in  which  the  masters  were  still  looked  to  for  servants'  torts, 
even  where  not  commanded,  —  Brunner's  thesis  being  illustrated,  that 
the  liability  follows  and  depends  on  the  power  of  control  and  correc- 
tion: 1646,  Laws  and  Liberties  of  Mass.,  1660;  Tit.  "Burglary  & 
Theft"  (Whitmore's  ed.  127):  "  [Penalty  imposed  for  robbing  orchards 
and  gardens:]  And  if  they  be  children  or  servants  that  shall  trespass 
herein,  if  their  parents  or  masters  will  not  pay  the  penalty  before  ex- 
prest,  they  [the  servants]  shall  bee  openly  whipped,"  re-enacted  in 
General  Laws  of  1672,  s.  v.  1678,  Law  of  Mass.  Co.'s  Council,  Mar.  28, 
1678  (Whitmore's  Colonial  Laws,  349):  A  penalty  for  shooting  off 
a  gun  near  any  house  or  highway,  and  the  offender  to  make  full  satis- 
faction to  injured  persons;  "And  where  either  they  be  servants  or 
youths  under  their  parents  or  masters,  and  shall  not  be  able  to  make 
such  satisfaction,  such  parents  or  masters  shall  be  liable  to  make  full 
and  due  satisfaction  in  all  respects." 

xLord  Holt's  judgments  markedly  show  this  point  of  view;  but  the 
following  passage  of  Lord  Hardwicke's  (Boucher  v.  Lawson,  (1734) 
infra)  is  perhaps  the  most  pointed  brief  one:  "This  case  seemed  at  the 
trial  of  very  great  consequence,  as  it  concerns  on  the  one  side  .  .  . 
the  security  that  persons  have  in  trusting  their  gold,  .  .  .  and  on  the 
other  side,  as  it  concerned  the  security  of  owners  of  ships  that  they 
might  not  be  charged  by  the  default  of  their  masters  further  than 
reason  requires." 

2  Not  that  they  fully  appreciated  the  historical  perspective  and  the 
significance  of  the  situation;  but  one  may  gather  from  all  said  and 
done  the  meaning  of  events.  We  are  dealing,  not  merely  with  the 
progress  of  a  rule,  but  also  with  the  development  of  an  idea. 


528  VII.     TORTS 


another  is  answerable ;  "  "  acting  in  the  execution  of  author- 
ity ;  "  "  acting  for  the  master's  benefit ;  "  "  being  about  the 
master's  business,"  —  these  appear  as  tentative  expressions 
in  the  general  effort  to  re-state  on  a  rational  basis.  But  the 
old  test,  in  its  broader  scope,  is  still  dominant  in  the  last  half 
of  the  new  century: 

1691,  Boson  v.  Sandford,  2  Salk.  440;  3  Mod.  321.  — The 
question  was  whether  the  owners  of  a  ship  were  responsible  for 
goods  received  by  the  master  and  spoiled  by  his  negligence.  Holt, 
C.  J. :  "  The  owners  are  liable  in  respect  of  the  freight  and  as 
employing  the  master;  for  whoever  employs  another  is  answer- 
able for  him,  and  undertakes  for  his  care  to  all  that  make  use  of 
him." 

1698,  Tuberville  v.  Stamp;      action  for  a  fire  started  by  the 
defendant's  servant  in  a  field.     Skinner,  681:    It  was  argued  by 
the  defence  that  "  it  does  not  appear  in  this  case  to  be  done  by 
the  command  of  the  master,  and  then  it  being  out  of  his  house 
he  is  not  responsible."     Comb.  459.     Holt,  C.  J. :  "  And  though 
I  am  not  bound  by  the  act  of  a  stranger  in  any  case,  yet  if  my 
servant  doth  anything  prejudicial  to  another,  it  shall  bind  me, 
where  it  may  be  presumed  that  he  acts  by  my  authority,  being 
about  my  business."     1  Ld.  Raym.  264 :   Holt,  C.  J. :  "  So,  in  this 
case,  if  the  defendant's  servant  kindled  the  fire  in  the  way  of  hus- 
bandry, and  proper  for  his  employment,  though  he  had  no  ex- 
press  command   of  his  master,  yet  the  master   shall  be  liable 
.  .  .    ;    for  it  shall  be  intended  that  the  servant  had  authority 
from  his  master,  it  being  for  his  master's  benefit." 

1699,  Middleton  v.  Fowler,  1  Salk.  282.  —  Case  against  own- 
ers of  a  stage-coach  for  a  trunk  taken  on  by  the  driver,  but  lost. 
Holt,  C.  J.,  said  that  a  stage-coachman  was  not  here  within  the 
custom  of  carriers,  and  adds,  as  to  the  receipt  of  money  by  the 
driver,  "  no  master  is  chargeable  with  the  acts  of  his  servant, 
but  when  he  acts  in  execution  of  the  authority  given  by  his  master, 
and  then  the  act  of  the  servant  is  the  act  of  the  master." 

1709  (?),  Hern  v.  Nichols,  1  Salk.  289.  —  Deceit  for  cloth  of 
wrong  quality;  the  deceit  was  in  defendant's  factor  beyond 
sea.  "  Holt,  C.  J.  was  of  opinion  that  the  merchant  was  an- 
swerable for  the  deceit  of  his  factor,  though  not  crimmaliter,  yet 
civiliter;  for  seeing  somebody  must  be  a  loser  by  the  deceit,  it  is 
more  reasonable  that  he  that  employs  and  puts  a  trust  and  con- 
fidence in  the  deceiver  should  be  a  loser  than  a  stranger."  : 

1722,  Armory  v.  Delamirie,  1  Stra.  505.  —  Where  an  appren- 

1Here  may  be  noted  (1699)  Jones  v.  Hart,  2  Salk.  441;  (1704) 
Ward  v.  Evans,  2  Salk.  442;  Wayland's  Case,  3  Salk.  234.  In  Lane  v. 
Cotton,  (1701)  1  Salk.  17,  12  Mod.  477,  where  the  postmaster  was  sued 


66.     WIGMORE:   TORTIOUS   RESPONSIBILITY   529 

tice  converted  a  jewel  handed  to  him  for  weighing,  "the  action 
well  lay  against  the  master,  who  gives  a  credit  to  his  apprentice 
and  is  answerable  for  his  neglect."  (Pratt,  C.  J.)  1 

1734-6,  Boucher  v.  Lawson,  Lee's  Hardwicke,  85,  194.  —  A 
ship-master  took  on  gold  at  Portugal,  contrary  to  Portuguese 
law,  and  on  arrival  in  London  it  was  missing.  Counsel  for  de- 
fendant: "  If  the  servant  of  a  carrier  carry  goods  without  the 
privity  of  his  master,  or  his  receiving  a  reward  for  taking  them, 
the  master  is  not  chargeable.  ...  A  master  is  not  answerable 
for  the  acts  of  his  servant  but  where  he  acts  in  execution  of  any 
authority  given  him  by  the  master.  .  .  .  My  servant  sells  false 
stuff  without  my  commanding  it ;  no  action  lies  against  me ;  other- 
wise if  by  my  commandment."  Counsel  for  plaintiff:  "  As  to  the 
master's  not  being  liable  for  his  servant  but  in  the  exercise  of  his 
trade,  this  is  in  the  master's  trade,  for  it  is  the  trade  of  the  own- 
ers of  ships  to  carry  goods ;  "  citing  Choke's  case  of  the  horse- 
shoer  in  11  Edw.  IV,  ante.  Hardwicke,  C.  J.,  decides  for  the 
defendants:  ".  .  .  It  deserves  to  be  considered  whether,  if  a 
ship  be  sent  for  a  particular  purpose,  and  not  in  the  general  way 
of  trade,  the  master  can  take  in  goods  to  charge  the  owners.  .  .  . 
For  anything  that  appears  in  this  case,  this  might  be  a  ship  sent 
to  Lisbon  for  a  special  purpose,  and  if  so,  no  one  can  say  that 
the  master,  by  taking  in  goods  of  his  own  head,  could  make  the 
owners  liable.  .  .  .  This  is  no  reason  why  these  cases  should  be 
carried  any  further  than  they  have  been  already."2 

1758-65,  Blackstone,  Commentaries,  I,  429-  —  "  As  for  those 
things  which  a  servant  may  do  on  behalf  of  his  master,  they  seem 
all  to  proceed  upon  this  principle,  that  the  master  is  answerable 
for  the  act  of  his  servant,  if  done  by  his  command,  either  ex- 
pressly given  or  implied;  nam  qui  facit  per  alium  facit  per  se. 
Therefore,  if  the  servant  commit  a  trespass  by  the  command  or 

for  the  loss  of  a  package  by  a  clerk,  the  case  was  argued  on  the  effect 
of  a  statute  and  on  the  peculiar  position  of  a  public  officer. 

1  Under   similar   circumstances    the   master   was    held   responsible   in 
Mead  v.  Hammond,  1  Stra.  505   (1722)  by  Pratt,  C.  J.;  and  in  Gram- 
mar v.  Nixon,  1  Stra.  653  (1726)  by  Eyre,  C.  J.,  the  master  was  made 
responsible  for  a  false  warranty;  no  reasons  being  given  in  either  case. 

2  In  1733   (Commons  Journal,  277;  Abbott  on  Shipping,  12  ed.,  Pt. 
IV.,  c.  VII.  vol.  II,  p.  339),  in  consequence  of  the  claim  made  for  the 
plaintiff  in  Boucher  v.  Lawson,  a  petition  of  merchants  was  presented 
to  the  House,  setting  forth  the  discouragement  to  commerce  if  owners 
were  held  liable  for  goods  made  away  with  by  masters  and  mariners 
"without   the  knowledge  or  privity   of  the   owner   or  owners,"   and   a 
statute  was   passed    (7   Geo.    II.   c.   15)    exonerating  them   from  being 
answerable  for  merchandise  "made  away  with  by  the  master  or  mari- 
ners without  the  privity  of  the  owners  "  beyond  the  value  of  vessel  and 
freight.      This   illustrates    how   the   mercantile    community   noticed    the 
broader  scope  of  the  revised  rule  as  now  substituted  by  the  Courts  for 
the  traditional  test  of  Particular  Command  (i.e.  direct  privity). 


530  VII.     TORTS 


encouragement  of  his  master,  the  master  shall  be  guilty  of  it. 
If  an  inn-keeper's  servants  rob  his  guests,  the  master  is  bound  to 
restitution;  for  as  there  is  a  confidence  reposed  in  him  that  he 
will  take  care  to  provide  honest  servants,  his  negligence  is  a  kind 
of  implied  consent  to  the  robbery;  nam  qui  non  prohibet,  cum 
prohibere  possit,  jubet.  So  likewise  if  the  drawer  at  a  tavern 
sells  a  man  bad  wine,  whereby  his  health  is  injured,  he  may  bring 
an  action  against  the  master;  for  although  the  master  did  not 
expressly  order  the  servant  to  sell  it  to  that  person  in  particular, 
yet  his  permitting  him  to  draw  and  sell  it  at  all  is  impliedly  a 
general  command.  ...  In  the  same  manner,  whatever  a  servant 
is  permitted  to  do  in  the  usual  course  of  his  business,  is  equivalent 
to  a  general  command.  ...  A  wife,  a  friend,  a  relation,  that  use 
to  transact  business  for  a  man,  are  quoad  hoc  his  servants ;  and 
the  principal  must  answer  for  their  conduct;  for  the  law  implies 
that  they  act  under  a  general  command;  and  without  such  a 
doctrine  as  this  no  mutual  intercourse  between  man  and  man 
could  subsist  with  any  tolerable  convenience.  .  .  .  [As  to  a  serv- 
ant's negligence],  in  these  cases  the  damage  must  be  done  while 
he  is  actually  employed  in  the  master's  service.  ...  [In  conclu- 
sion] the  reason  of  this  is  still  uniform  and  the  same,  —  that  the 
wrong  done  by  the  servant  is  looked  upon  in  law  as  the  wrong 
of  the  master  himself;  and  it  is  a  standing  maxim,  that  no  man 
shall  be  allowed  to  make  an}'  advantage  of  his  own  wrong."  1 

Attention  may  here  be  called  to  — 

1.  The  form  and  phrasing  of  the  test.  From  the  argu- 
ments in  Boucher  v.  Lawson  and  the  passages  of  Blackstone, 
it  may  easily  be  seen  how  the  idea  of  Express  Command  was 
naturally  enlarging  itself  into  that  of  Implied  Command,  a 
Command  to  be  implied  or  posited  from  a  general  commis- 
sion to  do  a  class  of  acts.  "  Whatever  a  servant  is  permitted 
to  do  in  the  usual  course  of  his  business,"  says  Blackstone, 
"  is  equivalent  to  a  general  command."  "  Where  he  acts  in 
execution  of  any  authority,"  says  counsel  in  Boucher  v.  Law- 
son  ;  and  this  is  the  dominant  phrase  with  Lord  Holt.  "  It 
may  be  presumed  that  he  acts  by  my  authority,  being  about 
my  business,"  is  another  phrase  of  his.  The  new  terms  are 

1  Compare  here,  also,  (1773)  Barker  v.  Braham,  3  Wils.  368;  an 
action  allowed  against  client  and  attorney  for  an  arrest  made  by  an 
error  of  the  latter ;  De  Grey,  C.  J. :  "  They  say,  whoever  procures,  com- 
mands, assists,  assents,  etc.,  is  a  trespasser;  here  the  client  commands 
the  attorney,  the  attorney  actually  commands  the  sheriff's  officer;  the 
real  commander  is  the  attorney,  the  nominal  commander  is  the  plaintiff 
in  the  action.  .  .  ." 


66.     WIGMORE:    TORTIOUS   RESPONSIBILITY  531 

natural  enough  and  hardly  call  for  explanation.  It  may  be 
suggested,  however,  that  "  authority  "  was  particularly  easy 
of  adoption  because  about  this  time  it  seems  to  have  had,  as 
a  primary  sense,  the  concrete  meaning  of  a  specific  order  (not 
merely  the  power  itself,  abstractly  regarded).1  As  the  full 
meaning  of  the  situation  was  realized,  it  was  inevitable  that 
the  broader  terms  "  scope  of  authority,"  "  exercise  of  trade," 
"  course  of  employment,"  should  prevail ;  but  this  was  not 
yet  to  be.2 

2.  The  reasons  offered  for  the  rule.  As  already  observed, 
we  find  first  under  Lord  Holt  an  effort  to  put  the  rule  on 
a  rational  footing  of  policy,3  —  an  effort  which,  owing  to  in- 
herent difficulties,  has  not  yet  by  any  means  ceased.  Usually 
some  definite  ground  of  policy,  more  or  less  tenable,  was  of- 
fered. Lord  Holt's  reasons  are  in  substance  covered  by  his 
brief  sentence  in  Wayland's  Case,  "  It  is  more  reasonable 
that  he  should  suffer  for  the  cheats  of  his  servant  than 
strangers  and  tradesmen,"  because  it  is  he  (Hern  v.  Nichols) 
who  "  puts  a  trust  and  confidence  in  the  deceiver,"  and  (Ar- 
mory v.  Delamirie,  per  Pratt,  C.  J.)  "  gives  a  credit  "  to 
him.  Blackstone,  tracing  the  harm  back  to  the  original  com- 
mand of  the  master,  says  "  no  man  shall  be  allowed  to  make 


*Cf.  Brandon  v.  Peacock,  Lee's  Hardwicke,  86  (1730):  "A  person 
put  tobacco  on  a  ship,  the  master  run  away  with  the  ship  and  tobacco, 
the  goods  being  insured,  the  person  that  owned  the  tobacco  applied  to 
the  insurance  office  and  received  the  value  of  it.  The  insurance  office 
took  an  authority  from  him  to  sue  the  owner,  and  the  C.  J.  held  that 
the  action  lay." 

2  One  might  fancy  that  the  phrase  of  the  St.  27  Ed.  Ill  (ante,  p.  0) 
"offended  in  the  office  in  which  his  master  hath  set  him,"  supplies  an 
antecedent  for  these  phrases.  But  it  would  seem  that  "office"  was 
purely  a  civil  or  canon  (not  Roman)  law  phrase.  In  Doctor  and  Stu- 
dent (II.  c.  42)  the  civilian,  asking  for  the  English  law,  gives  as  a  part 
of  his  own  test,  "  when  the  household  offendeth  in  any  office  or  ministry 
that  the  master  is  the  chief  officer  of;"  and  the  writer  has.  not  found 
the  phrase  elsewhere  than  in  that  book  and  in  the  above  statute.  In 
the  latter  it  may  easily  have  been  inserted  by  some  clerical  secretary 
learned  in  the  canon  law. 

A  test  once  ventured  in  1698  (Tuberville  v.  Stamp,  as  in  1  Ld. 
Raym.  264)  was  that  the  act  should  be  "for  the  master's  benefit;" 
and  in  the  1800s  this  phrase  played  some  part,  though  generally  in 
subordination  to  and  supplementary  to  the  "scope  of  employment" 
test  (Bush  v.  Steinman,  infra;  and  passim). 

*E.  g.  in  Beaulieu  v.  Finglam  (1401),  ante,  note  0,  the  Court  harshly 
refuses  to  argue  the  question  of  expediency. 


532  VII.     TORTS 


any  advantage  of  his  own  wrong."  Lord  Hardwicke 
(Boucher  v.  Lawson)  tries  to  strike  a  fair  balance  between 
the  "  security  "  which  others  ought  to  have  who  trust  the 
servant  and  the  "  security  "  which  masters  ought  to  have 
from  wayward  employees.  But  very  often  the  judicial  mind 
gave  up  the  troublesome  task  of  accurately  expressing  a 
reason,  and,  quite  content  with  the  policy  of  the  rule,  took 
refuge,  when  it  came  to  naming  a  reason,  in  a  fiction  or  other 
form  of  words.  "  The  master  undertakes  for  the  servant's 
care,"  said  Lord  Holt,  in  Boson  v.  Sandf ord ;  which  of  course 
is  not  true.  The  favorite  expressions  of  this  sort,  however, 
were  "  the  act  of  the  servant  is  the  act  of  the  master,"  when 
done  in  execution  of  authority  (Middleton  v.  Fowler,  Jones  v. 
Hart),  and  "qui  facit  per  alium  facit  per  se  "  (Blackstone)  ; 
and  perhaps  "  respondeat  superior  "  has  often  been  used  thus 
to  evade  giving  a  clear  reason.  Now  here  it  must  be  noticed 
that  there  are  different  ways  of  employing  a  fiction.  One  is 
to  accept  as  a  guide  a  traditional  element,  though  it  no  longer 
answers  to  the  notions  of  the  day,  and  to  insist  upon  its  use ; 
as  when  the  loss  and  finding  are  alleged  in  trover,  or  the  loss 
of  service  in  seduction.  In  the  former  instance  the  allegation 
is  now  recognized  as  a  pure  and  ineffectual  fiction ;  in  the 
latter,  except  in  some  states,  the  loss  of  service  must  still 
be  proved,  though  the  whole  basis  of  the  claim  rests  to-day  on 
other  notions.  A  very  different  way  is  to  employ  a  fiction 
to  sanction  a  rule  which  we  thoroughly  believe  in,  but  lazily 
prefer  to  evade  accounting  for  openly  and  rationally.  Of  this 
sort  is  the  instance  in  hand.  Sometimes,  as  where  in  a  docu- 
ment under  seal  the  seal  is  said  to  presume  a  consideration, 
we  borrow  some  kindred  doctrine  and  force  it  to  our  present 
use;  but  sometimes,  as  here,  we  put  forth  a  phrase  not  al- 
ready used  for  the  purpose,  but  now  found  very  handy.  So 
that  what  we  have  to  remember  about  the  employment  of  the 
above  fiction  of  Identification,  in  the  history  of  the  present 
doctrine,  is,  (1)  that  it  was  merely  a  reason,  an  easy,  con- 
cise reason,  which  was  put  forth  to  sanction  and  support  a 
rule  of  whose  practical  expediency  the  Courts  were  perfectly 
satisfied;  (2)  that  it  was  merely  one  of  several  reasons,  and 
by  no  means  the  most  common,  and  that,  in  short,  the  rule 


66.     WIGMORE:  TORTIOUS  RESPONSIBILITY  533 

would  have  stood  substantially  as  it  does  now,  if  all  reference 
to  the  Identification  fiction  were  wanting.1 

C.  A.  D.  1800+.  In  what  may  be  taken  as  the  next 
stage,  the  balance  is  seen  to  change  gradually;  the  Com- 
mand phrase  disappears  as  a  regular  one,  and  the  Scope  of 
Employment  phrase,  with  its  congeners,  come  into  full  con- 
trol. The  opinions  of  Lord  Kenyon  seem  chiefly  to  mark 
the  change  (though  his  language  is  not  uniform).  Savignac 
v.  Roome  and  Stone  v.  Cartwright  show  the  rivalry  with  par- 
ticular clearness:  ,  ..»i4;l 

1795,  Morley  v.  Gaisford,  2  H.  Bl.  442.  —  Case  against  one 
whose  servant  negligently  drove  a  cart  against  the  plaintiff's 
chaise.  A  verdict  was  found  for  the  plaintiff,  but  a  motion  was 
made  in  arrest  of  judgment  that  the  action  should  have  been  tres- 
pass. "  The  Court  seemed  at  first  inclined  to  refuse  the  rule, 
saying  that  it  was  difficult  to  put  a  case  where  the  master  could 
be  considered  a  trespasser  for  an  act  of  his  servant,  which  was 
not  done  at  his  command,"  but,  after  delaying  for  further  con- 
sideration, the  rule  was  discharged  on  the  defendant's  sugges- 
tion.51 

1795,  Savignac  v.  Roome,  6  T.  R.  125.  — Case  for  wilfully 
driving,  by  his  servant,  a  coach  against  the  plaintiff's  chaise. 

1Mr.  Justice  Holmes  (Harvard  L.  Rev.  IV,  345-364,  V,  1-23,  re- 
printed in  this  Collection  as  Essay  No.  63)  has  expressed  the  belief 
that  the  identification  fiction  plays  a  leading  part  in  earlier  history; 
but  the  learned  author  has  apparently  been  able  to  find  before  1700 
only  five  or  six  instances,  not  all  unambiguous.  The  plain  one  from 
West's  Symboleography  clearly  owes  its  origin  to  the  civil  law  (as 
does  a  great  deal  throughout  the  book).  West's  "by  some  bond  he  is 
fained  to  be  all  one  person,"  is  the  borrowing  of  a  notion  well  known 
across  the  water:  "  Eadem  est  persona  domini  et  procurators.  Eadem, 
inquam,  non  rei  veritate,  sed  fictione,"  etc.  (Digesta,  44,  2,  4,  note  to 
Elzevir  ed.).  Very  different  are  the  indigenous  English  expressions, — 
scarcely  fictions,  but  merely  statements  of  legal  results ;  e.  g.  "  the 
driving  of  the  servant  is  the  driving  of  the  master"  (Smith  v.  Shep- 
herd). Coke  says  of  disseisin  (Co.  Litt,  sects.  430-435):  "Where  the 
servant  doth  all  that  which  he  is  commanded,  .  .  .  there  it  is  as  suffi- 
cient as  if  his  master  did  it  himselfe,  for  the  rule  is,  qui  facit,  etc." 
This  "as  if"  (and  Littleton  says  the  same)  shows  that  there  is  here 
no  fiction  in  a  proper  sense,  —  merely  a  concise  statement  of  the  legal 
result.  The  out-and-out  identification  expressions  do  not  come  into 
much  vogue  until  after  Blackstone's  time. 

•The  argument  for  the  defendant  in  Brucker  v.  Fromont,  6  T.  R. 
659  (1796),  shows  that  this  misconception  of  the  earlier  form  of  the 
rule  was  already  in  the  air.  Note  that  this,  the  first  judicial  misunder- 
standing of  it  (which  became  the  basis  of  a  special  doctrine  noticed 
later  on),  was  in  the  Common  Pleas,  and  that  the  King's  Bench,  Lord 
Kenyon's  Court,  did  not  exhibit  it  until  well  on  in  the  next  century. 


534  VII.     TORTS 


Verdict  for  the  plaintiff.  Espinasse  moved  in  arrest,  because, 
first,  "  no  action  could  be  maintained  against  the  defendant  for 
a  wilful  act  of  the  servant,  accompanied  with  force,  unless  done 
by  command  of  the  master,"  citing  Jones  v.  Hart,  supra;  and, 
second,  because  the  action  should  have  been  trespass.  Bayley 
contended  that  it  was  enough  if  the  injury  was  done  in  the 
course  of  employment;  but  Espinasse  quoted  Blackstone,  ubi 
supra,  and  Kingston  v.  Booth,  supra.  The  Court  made  the  rule 
absolute  on  the  second  ground,  without  noticing  the  first. 

1796,  Stone  v.  Cartwright,  6  T.  R.  411.  — The  defendant 
managed  a  colliery  as  guardian;  he  employed  a  superintendent 
for  the  work,  but  took  no  personal  concern  in  it.  He  was  held 
not  liable  for  a  caving  of  the  soil  resulting  from  the  improper 
removal  of  pillars.  Lord  Kenyon  stated  that  such  actions  should 
be  brought  against  either  "  the  hand  committing  the  injury,  or 
against  the  owner  for  whom  the  act  was  done."  Lawrence,  J., 
said:  "If  the  plaintiffs  had  given  evidence  that  the  defendant 
had  particularly  ordered  those  acts  to  be  done  from  whence 
the  damage  had  ensued,  that  would  have  varied  the  case." 

1811,  Paley  on  Agency:  "  But  the  responsibility  of  the  master 
for  the  servant's  negligent  or  unlawful  acts  is  limited  to  cases 
properly  within  the  scope  of  his  employment.  .  .  .  The  responsi- 
bility of  the  principal  is  confined  to  acts  done  either  under  his 
express  direction,  or  in  his  service  and  therefore  under  his  con- 
structive command.  In  all  cases  in  which  the  frauds  or  injuries 
of  servants  have  been  held  to  affect  their  employers,  it  appears 
that  the  employment  afforded  the  means  of  committing  the 
injury.  No  wilful  trespass  of  a  servant,  not  arising  out  of  the 
execution  of  his  master's  orders  or  employment,  will  make  him 
responsible." 

1826,  Laughter  v.  Pointer,  5  B.  &  C.  547.  —  Here  the  defend- 
ant hired  a  coach  from  a  stable,  and  the  stable-keeper  sent  a 
driver  with  it,  and  a  collision  ensued,  there  is  no  traceable  rem- 
nant of  the  literal  form  of  the  doctrine;  all  seemed  ready  to 
say,  as  Lord  Kenyon  did:  "I  admit  the  principle,  that  a 
man  is  answerable  for  the  conduct  of  his  servants  in  matters 
done  by  them  in  the  exercise  of  the  authority  that  he  has 
given  them."1 

From  this  time  the  general  test  is  phrased  as  "  scope  "  or 
"  course  "  of  "  employment,"  2  "  scope  of  authority,"  3  or,  in 

1  Intervening  cases  are:  1799,  Bush  v.  Steinman,  1  B.  &  P.  404;  1800, 
Ellis  v.  Turner,  8  T.  R.  531;  1800,  McManus  v.  Crickett,  1  East  107; 
1826,  Gregory  v.  Piper,  9  B.  &  C.  591. 

2Sleath  v.  Wilson,  9  C.  &  P.  607,  1839;  Story  on  Agency,  1839; 
Smith  on  Master  and  Servant,  1852. 

"Cornfoot  v.  Fowke,  6  M.  &  W.  358,  1840;  Att'y-Gen.  v.  Siddon,  1 
Tyrwh.  41,  1830;  Coleman  v.  Riches,  16  C.  B.  104,  1855. 


66.     WIGMORE:   TORTIOUS  RESPONSIBILITY  535 

later  times,  more  carefully,  "  in  furtherance  of  and  within 
the  scope  of  the  business  with  which  he  was  trusted."  1 

Did  no  direct  traces  remain  at  later  times  of  the  sup- 
planted Command  test?  Or  was  its  broader  substitute  left 
in  sole  possession  of  the  field  after  Lord  Kenyon's  time? 

1.  A  very  few  cases  are  to  be  found  in  which  (the  judges,, 
perhaps,  having  been  brought  up  under  the  earlier  form  of 
doctrine)  a  direct  survival  may  be  seen. 2  .     \ 

2.  By  one  of  those  misunderstandings  not  infrequent  in  our 
legal  system,  the  language  of  the  1700s  century  became,  in 
the  1800s,  the  basis  of  the  rule  that  the  form  of  the  action 
against  the  master  could  be  Trespass  in  that  case  alone  where 
the  specific  act  had  been  commanded  by  him. 3    But  this  rule 
began  in  a  misconception,  gradually  evolved,  of  the  earlier 
rules,  as  reflected  in  the  later  series  of  cases  just  examined. 
The  stages  were  three:  (1)   Morley  v.  Gaisford  (1795),  in 
the  Common  Pleas,  initiates  the  above  rule ;  but  a  comparison 
of  it  with  Savignac  v.  Roome  (1795),  and  Brucker  v.  Fro- 
mont  (1796),  indicates  the  prevailing  principle,  as  adminis- 
tered in  the  King's  Bench,  to  have  been  that  the  form  of 
action  followed  the  intrinsic  nature  of  the  act ;   i.  e.  sue  the 
master  in  Case  where  negligence  of  the  servant  is  the  basis 
of  the  claim,  sue  in  Trespass  for  the  servant's  trespass.     (£) 
In  McManus  v.  Crickett  (1800),  Lord  Kenyon  held  that  the 
master  is  not  liable  at  all  for  a  wilful  trepass  of  the  servant, 
unless  done  at  express  command,  because  he  thus  practically 
exceeds  his  authority ;   for  his  trespasses  not  wilful,  Case  lies. 
Of  this  understanding  are  Paley4  and  Peake,5  writing  shortly 

1  Keating,  J.,  in  Bolingbroke  v.  Board,  L.  R.  9  C.  P.  at  577,  1874. 

2 1828,  Goodman  v.  Kennell,  1  Moore  &  P.  241 ;  1857,  Patten  v.  Rea, 
2  C.  B.  N.  S.  606;  1867,  Barwick  v.  Bank,  L.  R.  2  Exch.  259. 

Most  of  the  American  cases  came  at  a  time  when  the  text-books  had 
made  the  "scope  of  employment"  or  "authority"  phrase  the  familiar 
one;  but  a  few  are  to  be  found  using  the  old  language;  e.g.  McCalla 
v.  Wood,  Pennington  (N.  J.)  86  (1806) :  "  Upon  principles  of  law,  one 
person  can  never  be  made  liable  for  the  trespass  of  another.  It  is 
true,  that  if  one  command  or  authorize  his  servant  to  commit  a  tres- 
pass, he  is  answerable  himself;  but  then  it  is  the  trespass  of  the  master, 
according  to  the  well-known  maxim  of  the  law,  qui  facit  per  alium  facit 
per  se." 

8 1859,  Gordon  v.  Rolt,  4  Exch.  365;  1849,  Sharrod  v.  R.  Co.,  ibid.  581. 

*  Agency,  cited  ante. 

•Nisi  Prius,  p.  294. 


536  Vll.     TORTS 


after.  (3)  Then  forgetfulness  ensued,  the  opinion  at  the 
bar  altered,  and  in  (1826)  Gregory  v.  Piper  and  in  (1849) 
Sharrod  v.  R.  Co.,  it  was  said  that  the  master  is  not  liable 
in  Trespass  for  his  servant's  trespasses  (i.  e.  direct  acts,  wil- 
ful or  not),  unless  expressly  commanded.  This  doctrine  may 
well  be  regarded  as  a  necessary  result  of  the  common-law 
theory  of  Trespass;  but  it  seems  on  the  evidence  that  it 
originally  crept  in  through  a  misconception  of  the  language 
of  the  old  Command  test,  then  becoming  obsolete. 

A  review  of  this  history  of  the  idea  of  the  master's  and 
principal's  liability  throws  some  light  on  the  validity  of  the 
principle  in  point  of  policy.  As  an  existing  rule,  it  cannot 
be  objected  to  as  the  mere  fossil  remnant  of  a  fiction.  A 
learned  writer  has  however  averred  that  "  common-sense  is 
opposed  to  the  fundamental  theory  of  agency."  This  is  not 
the  place  to  offer  to  do  what  no  one  has  yet  succeeded  in  do- 
ing,—  to  phrase  the  feeling  of  justice  which  every  one  has 
in  the  more  or  less  extended  responsibility  for  agents'  torts. 
But  it  is  worth  while  noting  that  the  doctrine  of  to-day  took 
shape  under  Lord  Holt  in  a  conscious  effort  to  adjust  the 
rule  of  law  to  the  expediency  of  mercantile  affairs.  It  is  also 
worth  noting  that  the  Command  or  Authority  principle  may 
prove  to  be,  theoretically  as  well  as  historically,  the  true  sup- 
port of  the  rule  of  responsibility  for  agents'  torts.  Perhaps 
the  nearest  approach  to  theoretic  adequacy  is  that  of  Lord 
Brougham,  in  Duncan  v.  Findlater,  6  Cl.  &  F.  894,  910:  "  I 
am  liable  for  what  is  done  for  me  and  under  my  orders  by 
the  man  I  employ,  .  .  .  and  the  reason  that  I  am  liable  is 
this,  that  by  employing  him  I  set  the  whole  thing  in  motion, 
and  what  he  does,  being  done  for  my  benefit  and  under  my 
direction,  I  am  responsible  for  the  consequences  af  doing  it." 
In  other  words,  (1)  if  I  command  A  to  do  act  x,  I  ought  to 
be  liable  for  the  natural  consequences  peculiar  to  that  act 
taken  in  itself;  (2)  the  same  follows  if  x  is  a  class,  series, 
or  group  of  acts;  (3)  if  A  does  the  act  in  a  careless  or 
otherwise  wrongful  way,  different  from  that  in  which  I  ex- 

1  Or  this :  "  If,  instead  of  driving  the  carriage  with  his  own  hands 
he  employs  a  servant  to  drive  it,  the  servant  is  but  an  instrument  set 
in  motion  by  the  master"  (Alderson,  B.,  in  Hutchinson  v.  R.  Co.,  5 
Exch.  350). 


66.     WIGMORE:  TORTIOUS  RESPONSIBILITY  537 

pected  him  to  do  it,  and  not  as  I  myself  might  have  done  it, 
my  personal  culpability  is  no  longer  clear ;  nevertheless, 
complete  legal  exoneration  in  such  cases  would  be  poor  pol- 
icy, for  it  would  afford  ample  opportunity  to  shirk  respon- 
sibility, merely  by  appointing  substitutes ;  so  that  some  me- 
dium must  be  found.  If,  then,  I  employ  knowingly  a  careless 
servant,  here  at  least  I  should  be  liable,  just  as  for  impru- 
dently keeping  a  dog  known  to  be  ferocious.  But  even  this 
may  on  practical  grounds  be  too  lenient  a  rule,  for  I  may 
still  find  means  of  evading  due  responsibility  under  cover 
of  that  test.  Public  convenience  then  may  demand  that  I 
should  be  liable  up  to  a  still  further  point,  even  though  I 
select  agents  carefully;  in  other  words,  we  may  say  that 
I  employ  a  substitute  more  or  less  at  my  peril.  Just  as 
gunpowder  is  kept  at  peril,  but  steam-engines,  through  de- 
mands of  industrial  welfare,  are  not  kept  at  peril,  so  there 
is  an  undefined  point  at  which  the  appointment  of  a  sub- 
stitute ceases  to  be  at  peril;  and  in  the  nature  of  the  case 
that  point  is  in  individual  instances  hard  to  determine.  But 
the  conflict  is  hardly,  as  the  learned  jurist  would  place  it, 
between  common-sense  and  tradition,  but  between  one  great 
consideration  of  policy  and  another.  If  the  restraining  con- 
sideration just  now  seems  to  be  the  weak  one,  it  is  precisely 
because,  as  the  above-mentioned  article  admits,  public  opin- 
ion is  convinced  (rightly  or  wrongly)  that  the  broad  rule 
is  a  "  seemingly  wholesome  check  on  the  indifference  and 
negligence  of  great  corporations."  Whether  for  the  sake 
of  this  alone  we  should  sanction  such  broad  limits  in  dealing 
with  the  general  mercantile  community  is  perhaps  a  really 
different  question.  But  at  any  rate  the  whole  liability,  wher- 
ever it  be  bounded,  can  be  discussed  and  expressed,  it  would 
seem,  "  according  to  the  ordinary  canons  of  legal  responsi- 
bility," without  borrowing  support  from  a  supposed  historic 
fiction. 


PART  VTTT 

PROPERTY  (IN  GENERAL) 

67.  Disseisin  of  Chattels. 

JAMES  BARR  AMES 

68.  The  Mystery  of  Seisin. 

FREDERICK  WILLIAM  MAITLAND 

69.  History  of  the  Action  of  Ejectment  in  England  and  the 

United  States. 

ARTHUR  GEORGE  SEDGWICK  AND  FREDERICK  SCOTT  WAIT 

70.  The  Gage  of  Land  in  Mediaeval  England. 

HAROLD  DEXTER  HAZELTINE 

71.  Changes  in  the  English  Law  of  Real  Property  during 

the  Nineteenth  Century. 

ARTHUR  UNDERBILL 


[OTHEB  REFERENCES  ON  THE  SUBJECT  OP  THIS  PART  ARE  AS  FOLLOWS: 

Folcland,  by  Paul  Vinogradoff  (English  Historical  Review,  1893, 
VIII,  1). 

The -Transfer  of  Land  in  Old  English  Law,  by  Paul  Vinogradoff 
(Harvard  Law  Review,  1907,  XX,  532-548). 

Changes  in  the  American  Law  of  Real  Property.  Anon.  (American 
Jurist,  1829,  pp.  28-97). 

Les  fondations  [charitable  gifts]  en  Angleterre;  etude  de  droit 
compared,  by  Jean  Escarra  (Paris,  1907). 

History  of  Land  Tenure  in  Scotland  and  England,  by  R.  Camp- 
bell (Law  Quarterly  Review,  1885-86,  I,  175-183,  400-411,  II,  166-176). 

History  of  the  Irish  Land  System,  by  W.  O.  Morris  (Law  Quar- 
terly Review,  1887,  III,  133-157). 

Alienation  of  Estates  Tail,  by  H.  W.  Elphinstone  (Law  Quarterly 
Review,  1890,  VI,  280-288). 

Short  Studies  in  the  Early  Common  Law;  II,  Rents-Charge,  by  W. 
G.  Hammond  (Green  Bag,  1892,  IV,  283-292). 

Early  English  Land  Tenures,  by  M.  Kovalevsky  (Law  Quarterly 
Review,  1880,  IV,  266-285). 

The  Seisin  of  Chattels,  by  F.  W.  Maitland  (Law  Quarterly  Review, 
1885,  I,  324-341). 

The  Beatitude  of  Seisin,  by  F.  W.  Maitland  (Law  Quarterly  Re- 
view, 1888,  IV,  24-39,  286-299). 

Possession  for  a  Year  and  a  Day,  by  F.  W.  Maitland  (Law  Quar- 
terly Review,  1889,  V,  253-264). 

Feoffment  and  Livery  of  Incorporeal  Hereditaments,  by  L.  O.  Pike 
(Law  Quarterly  Review,  1889,  V,  29-43). 

Origin  of  Rights  of  Common,  by  T.  E.  Scrutton  (Law  Quarterly 
Review,  1887,  III,  373-398). 

History  of  Legislation  concerning  Property  in  England,  by  J.  E. 
R.  de  Villiers  (London,  1901). 

Changes  of  Real  Property  Law  in  the  United  States,  by  G.  E.  Beers 
(in  Two  Centuries  of  Growth  of  American  Law,  Yale  Bi-Centenary 
Studies,  New  York,  1901). 

Origin  of  the  System  of  Recording  Deeds  in  America,  by  J.  H. 
Beale,  Jr.  (Green  Bag,  1907,  XIX,  335).] 


67.    THE    DISSEISIN    OF    CHATTELS1 

BY  JAMES  BARR  AMES  2 


THE  readers  of  "  The  Seisin  of  Chattels,"  by  Professor 
Maitland,  in  the  "  Law  Quarterly  Review  "  for  July, 
1885,  were  doubtless  startled  at  the  outset  by  the  title  of 
that  admirable  article.  But  all  must  have  admitted  at  the 
end  that  the  title  was  aptly  chosen.  The  abundant  illustra- 
tions of  the  learned  author  show  conclusively  that  from  the 
days  of  Glanvil  almost  to  the  time  of  Littleton,  "  seisin  "  and 
"  possession "  were  synonymous  terms,  and  were  applied 
alike  to  chattels  and  land.  In  a  word,  seisin  was  not  a  purely 
feudal  notion. 

Is  it  possible,  however,  to  justify  the  title  of  the  present 
article  ?  Is  it  also  a  mistake  to  regard  disseisin  as  a  peculiar- 
ity of  feudalism?  History  seems  to  answer  these  questions 
in  the  affirmative.  The  word  "  disseisin,"  it  is  true,  was 
rarely  used  with  reference  to  personalty.  Only  three  illus- 
trations of  such  use  have  been  found, 3  as  against  the  multi- 
tude of  allusions  to  seisin  of  chattels  noted  by  Professor 
Maitland.  In  substance,  however,  the  law  of  disseisin  was 
common  to  both  realty  and  personalty. 

A  disseisor  of  land,  it  is  well  known,  gains  by  his  tort  an 
estate  in  fee  simple.  "  If  a  squatter  wrongfully  incloses  a  bit 
of  waste  land  and  builds  a  hut  on  it,  and  lives  there,  he  ac- 
quires an  estate  in  fee  simple  in  the  land  which  he  has  in- 
closed. He  is  seised,  and  the  owner  of  the  waste  is  disseised. 

JThis  Essay  was  originally  published  in  the  Harvard  Law  Review, 
1890,  Vol.  Ill,  pp.  23-40,  313-328,  33T-346.  Additions  are  indicated  by 
brackets. 

2  A  biographical  note  of  this  author  is  prefixed  to  Essay  No.  43,  in 
Volume  II  of  this  Collection. 

81  Rot.  Cur.  Reg.  451;  1  Stat.  of  Realm,  230,  or  Bract,  f.  136  b; 
Y.  B.  14  Edw.  II.  409. 


542  VIII.     PROPERTY  (IN  GENERAL) 

.  .  .  He  is  not  a  mere  tenant  at  will,  nor  for  years,  nor  for 
life,  nor  in  tail;  but  he  has  an  estate  in  fee  simple.  He  has 
seisin  of  the  freehold  to  him  and  his  heirs."  Compare  with 
this  the  following,  from  Fitzherbert :  "  Note  if  one  takes  my 
goods,  he  is  seised  now  of  them  as  of  his  own  goods,  adjudged 
by  the  whole  court ;  "  2  or  Finch's  definition :  "  Trespass  in 
goods  is  the  wrongful  taking  of  them  with  pretence  of  title, 
and  therefore  altereth  the  propertie  of  those  goods."  3  This 
altering  of  the  property  by  a  trespass  is  pointedly  illus- 
trated by  a  case  from  the  "  Book  of  Assizes."  •  The  plain- 
tiff brought  a  bill  of  trespass  for  carrying  off  his  horse  and 
killing  it.  "  The  defendant  prayed  judgment  of  the  bill, 
since  you  have  confessed  the  property  to  be  in  us  at  the  time 
of  the  killing,  and  so  your  bill  is  repugnant ;  for  by  the  tor- 
tious  taking,  the  property  was  devested  out  of  you  and 
vested  in  us,  and  therefore  we  could  not  kill  our  own  horse 
contra  pacem."  The  bill  was  adjudged  bad.  Furthermore, 
incredible  as  it  may  appear,  a  disseisin  by  theft  vested  the 
property  in  the  stolen  chattel  in  the  thief.  John  v.  Adam  5 
was  a  case  of  replevin  in  the  detinet  for  sheep.  Avowry 
that  the  sheep  were  stolen  from  the  plaintiff  by  M.,  who  was 
driving  them  through  the  defendant's  hundred;  that  M.,  to 
avoid  arrest,  fled  to  the  church  and  abjured  the  realm,  and 
so  the  defendant  was  seised  by  virtue  of  his  franchise  to  have 
the  goods  of  felons.  Certain  formal  objections  were  taken 
to  the  avowry,  to  which  Herle,  C.  J.,  answered :  "  Whatever 
his  avowry  be,  you  shall  take  nothing ;  for  he  has  acknowl- 
edged that  the  property  was  once  in  you,  and  afterward  in 
him  who  stole  them;  and  now  he  affirms  the  property  in 

1  Williams,  Seisin,  7.  See  also  Leach  v.  Jay,  9  Ch.  Div.  42,  44,  45. 
[Two  joint  disseisors  become  joint  tenants.  Putney  v.  Dresser,  2  Met. 
583;  Litt.  §278.] 

2Fitz.  Ab.  Tresp.  153. 

8  Finch,  Law,  Book  III.  c.  6. 

4  27  Ass.  pi.  64.  See  also  Y.  B.  2  H.  IV.  12-51.  There  is  a  legal 
curiosity  in  2  Roll.  Ab.  553  [Q]  1,  2.  "If  my  servant,  without  my 
knowledge,  put  my  beasts  in  another's  land,  my  servant  is  the  tres- 
passer and  not  I;  because,  by  the  voluntary  putting  of  the  animals 
there  without  my  consent,  he  gains  a  special  property  for  the  time,  and 
so  for  this  purpose  they  are  his  animals.  But,  semble,  if  my  wife  puts 
my  beasts  in  another's  land,  I,  myself,  am  trespasser,  because  the  wifa 
cannot  gain  a  property  from  me." 

6Y.  B.  8  Ed.  III.  10-30. 


67.     AMES:  DISSEISIN  OF  CHATTELS       543 

himself,  and  therefore,  although  he  cannot  maintain  the 
property  in  himself  for  the  reason  alleged,  still  you  shall 
not  have  the  sheep  again,  for  he  gives  a  mesne ;  namely,  the 
felon  in  whom  the  property  was."  l  The  opinion  of  this  dis- 
tinguished judge  is  confirmed  by  numerous  cases  in  which 
stolen  goods  were  forfeited  by  the  thief,  under  the  rule  of 
law  that  gave  to  the  Crown  the  chattels  of  felons.  The 
goods,  having  become  by  the  theft  the  property  of  the  felon, 
were  forfeited  as  a  matter  of  course  with  the  rest  of  his 
chattels. 

These  examples  are  sufficient  to  bring  out  the  analogy 
between  the  tortious  taking  of  chattels  and  the  wrongful 
ouster  from  land.  But  in  order  to  appreciate  fully  the 
parallel  between  disseisin  of  chattels  and  dissesin  of  land,  we 
must  consider  in  some  detail  the  position  of  the  disseisor 
and  disseisee  in  each  case.3 

The  disseised  owner  of  land  loses,  of  course,  with  the  res 
the  power  of  present  enjoyment.  But  this  is  not  all.  He 
retains,  it  is  true,  the  right  in  rem;  or,  to  use  the  common 
phrase,  he  has  still  a  right  of  entry  and  a  right  of  action. 
But  by  an  inveterate  rule  of  our  law,  a  right  of  entry  and  a 
chose  in  action  were  strictly  personal  rights.  Neither  was 
assignable.  It  follows,  then,  that  the  disseisee  cannot  trans- 
fer the  land.  In  other  words,  as  long  as  the  disseisin  con- 
tinues, the  disseised  owner  is  deprived  of  the  two  character- 
istic features  of  property,  —  he  has  neither  the  present  en- 
joyment nor  the  power  of  alienation. 

These  conclusions  are  fully  borne  out  by  the  authorities. 
"  The  common  law  was,"  as  we  read  in  Plowden,  "  that  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 

1  [C  stole  from  B  goods  which  B  had  stolen  from  A.  An  indictment 
against  C  describing  the  goods  as  the  property  of  B  was  held  good  in 
Ward  v.  People,  3  Hill,  395.1 

2Y.  B.  30  &  31  Ed.  I.  508,  512,  512-514,  526;  Fitzh.  Coron.  95,  162, 
318,  319,  367,  379,  392;  Fitzh.  Avow.  151;  Dickson's  Case,  Hetl.  64. 
Under  certain  circumstances  the  victim  of  the  theft  might  obtain  resti- 
tution of  the  goods.  But  the  cases  cited  in  this  note  show  the  difficul- 
ties that  must  be  surmounted. 

8  For  the  best  discussion  of  the  doctrine  of  disseisin  of  land  see 
Maitland  "Mystery  of  Seisin,"  2  L.  Q.  Rev.  481,  to  which  the  present 
writer  is  indebted  for  many  valuable  suggestions. 


544  VIII.     PROPERTY   (IN  GENERAL) 

void."  1  It  was  not  until  1845  that  by  statute  2  the  interest 
of  the  disseisee  of  land  became  transferable.  Similar  stat- 
utes have  been  enacted  in  many  of  our  States.3  In  a  few 
jurisdictions  the  same  results  have  been  obtained  by  judicial 
legislation.4  But  in  Alabama,  Connecticut,  Dakota,  Florida, 
Georgia,  Kentucky,  Massachusetts,  New  York,  North  Caro- 
lina, Oklahoma,  Rhode  Island,  and  Tennessee,  and  presum- 
ably in  Maryland  and  New  Jersey,  it  is  still  the  law  that  the 
grantee  of  a  disseisee  cannot  maintain  an  action  in  his  own 
name  for  the  recovery  of  the  land.5 

A  right  of  entry  and  action  is  now  everywhere  devisable. 
But  until  1838  in  England  and  1886  in  Massachusetts,  a 
disseisee  had  nothing  that  he  could  dispose  of  by  will.6 

If  we  turn  now  from  transfers  by  act  of  the  party  to 
transfers  by  operation  of  law,  we  find  that  in  the  one  case 
of  bankruptcy  there  was  a  true  succession  to  the  disseisee's 
right  to  enter  or  sue.  But  this  was,  of  course,  a  statutory 
transfer.7 

Cartridge  v.  Strange,  Plow.  88,  per  Montague,  C.  J.  [See  also  Doe 
v.  Evans,  1  Q.  B.  717,  and  1  Platt,  Leases,  50.  Bract,  f.  376,  5  Tw. 
Bract.  456;  7  Seld.  Socy.,  Mirror  of  Justice,  74-75;  Co.  Litt.  266,  a.] 

2  8  &  9  Viet.  c.  106,  §  6.    See  Jenkins  v.  Jones,  9  Q.  B.  Div.  128. 

3  Arkansas,    California,    Colorado,    Georgia,    Illinois,    Indiana,    Iowa, 
Kansas,   Maine,  Michigan,   Minnesota,   Mississippi,   Missouri,   Montana, 
Nebraska,   Nevada,   Oregon,   Vermont,   Virginia,   West   Virginia,   Wis- 
consin, Arizona,  Idaho,  Utah,  Wyoming. 

4  Delaware,  District  of  Columbia,  Maryland,  New  Hampshire,  Ohio, 
Pennsylvania,  South  Carolina,  Texas. 

5 Bernstein  v.  Humes  (1877),  60  Ala.  582;  Conn.  Rev.  Stat.  (1875) 
354,  §  15;  Dak.  Civil  C.  §  681;  Doe  v.  Roe  (1869),  13  Fla.  602;  Russell 
v.  Doyle  (1886),  84  Ky.  386,  388;  Sohier  v.  Coffin  (1869),  101  Mass. 
179;  Rawson  v.  Putnam  (1880),  128  Mass.  552,  554;  Webster  v.  Van 
Steenburgh  (1864),  46  Barb.  211;  Murray  v.  Blackledge  (1874),  71  N. 
Ca.  492;  Burdick  v.  Burdick  (1884),  14  R.  I.  574;  Tenn.  Code  (1884), 
§2446;  [Probst,  v.  Bush,  115  Ala.  495;  Levy  v.  Cox,  22  Fla.  546;  Reyes 
v.  Middleton,  36  Fla.  99;  Smith  v.  Klay,  47  Fla.  216;  Doe  v.  Edmond- 
son  (Fla.  1906)  40  So.  R.  505;  Davitte  v.  So.  Co.  108  Ga.  665;  Lowe  v. 
Bivens,  112  Ga.  341;  Gately  v.  Weldon,  12  Ky.  L.  Rep.  621;  Sneed  v. 
Hope,  16  Ky.  L.  Rep.  871;  Terry  v.  Hilton,  20  Ky.  L.  Rep.  367;  Pres- 
ton v.  Breckenridge,  86  Ky.  619  (semble)  ;  Joyce  v.  Dyer,  189  Mass.  64; 
Thomas  v.  Perry  (New  Jersey  law),  Pet.  C.  C.  49;  Pearce  v.  Moore,  114 
N.  Y.  256;  Dever  v.  Hagerty,  169  N.  Y.  481;  Gilmore  v.  Dolan,  114 
N.  Y.  Ap.  Div.  774;  Green  v.  Horn,  128  N.  Y.  Ap.  Div.  686;  Huston  v. 
Scott  (Okla.  1908),  94  Pac.  R.  512;  Galbraith  v.  Payne,  12  N.  Dak.  164; 
Schneller  v.  Plankinton,  12  N.  Dak.  561;  Randolp.  v.  Kinney,  3  Rand. 
394,  396.] 

61  Jarm.  Wills  (4  ed.),  49;  Poor  v.  Robinson,  10  Mass.  131;  Mass. 
Rev.  St.  c.  62,  §  2.  [Y.  B.  39  Hen.  VI,  18-23.] 

7  Smith  v.  Coffin,  2  H.  Bl.  444. 


67.     AMES:  DISSEISIN  OF  CHATTELS       545 

There  was  also  a  succession  sub  modo  in  the  case  of  death. 
The  heir  of  the  disseisee,  so  long  as  he  continued  the  persona 
of  the  ancestor,  stood  in  his  place.  But  the  succession  to 
the  right  m  rem  was  radically  different  from  the  inheritance 
of  the  res  itself.  If  the  heir  inherited  the  land,  he  became 
the  feudal  owner  of  it,  and  therefore  at  his  death  it  de- 
scended to  his  heir,  unless  otherwise  disposed  of  by  deed  or 
will.  On  the  other  hand,  if  a  right  of  entry  or  action  came 
to  the  heir,  he  did  not  become  the  absolute  owner  of  the  right. 
He  could  not  hold  a  chose  in  action  as  tenant  in  fee  simple. 
The  right  was  his  only  in  his  representative  capacity.  He 
might,  of  course,  reduce  the  right  in  action  to  possession, 
and  so  become  feudal  owner  of  the  land.  But  if  he  died 
without  gaining  possession,  nothing  passed  to  his  heir  as 
such.  The  latter  must  be  also  the  heir  of  the  disseisee,  and 
so  the  new  representative  of  his  persona,  in  order  to  succeed 
to  the  right  in  rem. l 

These  two  cases  of  death  and  bankruptcy  were  the  only 
ones  in  which  the  disseisee's  right  was  assignable  by  involun- 
tary transfer.  There  was,  for  example,  no  escheat  to  the 
lord,  if  the  disseised  tenant  died  without  heirs,  or  was  con- 
victed of  felony.  This  doctrine  would  seem  to  have  been 
strictly  feudal.  Only  that  could  escheat  which  was  capable 
of  being  held  by  a  feudal  tenure.  A  chose  in  action  could  not 
be  held  by  such  a  tenure.  Only  the  land  itself  could  be  so 
held.  But  the  land,  after  the  disseisin,  was  held  by  the  dis- 
seisor.  So  long  as  his  line  survived,  there  was  no  "  defectus 
tenentis"  The  death  of  the  disseisee  without  heirs  was, 
therefore,  of  no  more  interest  to  the  lord  than  the  death  of 
any  stranger.2 

The  lord  was  entitled  to  seize  the  land  of  his  villein.  But 
if  the  villein  had  been  disseised  before  such  seizure,  the  lord 
could  not  enter  upon  the  land  in  the  possession  of  the  dis- 
seisor,  except  in  the  name  of  the  villein,  and,  after  a  descent 

1  [Can-  v.  Anderson,  6  N.  Y.  Ap.  Div.  6,  10.] 

2  This  principle  was  not  maintained  in  its  full  integrity  in  the  time 
of  Coke.     See  Maitland,  <2  L.  Q.  Rev.  486,  487,  where  the  authorities 
are  fully  collected.     ["As  if  a  man  be  disseised  and  after  be  outlawed, 
he  shall  not  forfeit  the  profits  of  the  land,"  Beverley's  Case,  Goldsb.  55, 
pi.  8.1 


546  VIII.     PROPERTY  (IN  GENERAL) 

cast,  could  not  enter  at  all.1  Nor  had  he  any  right  to  bring 
an  action  in  the  name  of  his  villein.2 

It  is  still  the  law  in  most  of  our  States,  as  it  was  in  Eng- 
land before  1833,3  that  "  if  a  man  seised  of  land  in  fee  be  dis- 
seised of  the  same,  and  then  take  a  wife  and  die  without  re- 
entering,  she  shall  not  have  dower." 

The  husband  of  a  woman  who  was  disseised  before  the  mar- 
riage may,  of  course,  enter  upon  the  disseisor  in  his  wife's 
name,  or  he  may  bring  an  action  to  recover  the  land  in  their 
joint  names ;  but  if  the  land  is  not  recovered  in  the  one  way 
or  the  other  before  his  wife's  death,  he  must  suffer  for  his 
laches.  For  the  old  rule,  which  denied  to  the  husband  cur- 
tesy  in  his  wife's  right  of  entry  or  action,  has  not  lost  its 
force  on  either  side  of  the  ocean.5  It  was  applied  in  New 
York,  to  the  husband's  detriment,  as  recently  as  1888.6 

One  more  phase  of  the  non-assignability  of  the  disseisee's 
right  of  action  is  shown  by  another  recent  case.  It  was  de- 
cided in  Rhode  Island,  in  1879,  in  accordance  with  a  decision 
by  the  King's  Bench,  in  the  time  of  James  I.,7  that  a  disseised 
owner  of  land  had  nothing  that  could  be  taken  on  exe- 
cution.8 

The  position  of  the  disseisor  of  land  is,  in  most  respects, 
the  direct  opposite  of  that  of  the  disseisee.  The  strength  of 
each  is  the  weakness  of  the  other.  The  right  of  the  disseisee 
to  recover  implies  the  liability  of  the  disseisor,  or  his  trans- 
feree, to  lose  the  land.  But  so  long  as  the  disseisin  continues, 

1  Co.  Lit.  118  b. 

2  Co.  Lit.  117  a. 

8  3  &  4  Wm.  IV.  c.  105. 

4  Perk.  §366;  Thompson  v.  Thompson,  1  Jones  (N.  Ca.),  431;  1 
Washb.  R.  P.  (5  ed.)  225,  226;  [Y.  B.  24  Ed.  III.  65,  a-69  per  Shard; 
Carr  v.  Anderson,  6  N.  Y.  Ap.  Div.  6]. 

6  2  L.  Q.  Rev.  486 ;  1  Bishop,  Mar.  W.  §  509 ;  Den  v.  Demarest,  1  Zab. 
525,  542. 

•Baker  v.  Oakwood,  49  Hun,  416. 

7Stamere  v.  Amonye,  1  Roll.  Abr.  888,  pi.  5;  [Gilb.  Executions,  42; 
Doe  v.  Minthorne,  3  Up.  Can.  Q.  B.  423  Accord] . 

8  Campbell  v.  Point  St.  Works,  12  R.  I.  452.  McConnell  v.  Brown, 
5  Mon.  478;  [Farmers  Bank  v.  Pryse,  25  Ky.  L.  Rep.  807]  Accord.  By 
statute  or  judicial  legislation  a  different  rule  prevails  in  some  juris- 
dictions. Doe  v.  Haskins,  15  Ala.  619;  McGill  v.  Doe,  9  Ind.  306; 
Blanchard  v.  Taylor,  7  B.  Mon.  645;  Hanna  v.  Renfro,  32  Miss.  125, 
130;  Rogers  v.  Brown,  61  Mo.  187  (semble) ;  Truax  v.  Thorn,  2  Barb. 
156;  Jarrett  v.  Tomlinson,  3  Watts  &  S.  114;  Kelley  v.  Morgan,  3  Yerg. 
437. 


67.     AMES:  DISSEISIN  OF  CHATTELS       547 

the  disseisor,  or  his  transferee,  possesses  all  the  rights  inci- 
dent to  the  ownership  of  an  estate  in  fee  simple.  He  has  the 
jus  habendi  and  the  jus  disponendi.  If  he  is  dispossessed 
by  a  stranger,  he  can  recover  possession  by  entry  or  action.1 
If  he  wishes  to  transfer  his  estate  in  whole  or  in  part,  he 
may  freely  do  so.  He  may  sell  the  land,2  or  devise  it,3  or 
lease  it.4  His  interest  is  subject  also  to  the  rules  of  invol- 
untary transfer.  Accordingly,  it  may  descend  to  his  heir,5 
escheat  to  his  lord,6  or  be  taken  on  execution,7  and  would 
doubtless  pass  to  his  assignee  in  bankruptcy.  The  husband 
of  the  disseisor  has  curtesy,8  and  the  wife  dower ; 9  and  a 
disseisin  by  a  villein  must  have  enured  to  the  benefit  of  his 
lord  at  the  latter's  election.  [The  disseisor  may  insure  the 
land.10  He  may  grant  a  rent  charge  out  of  it.11  He  has  the 
right  of  common  which  his  disseisee  had.12  He  may  convey 
the  land  upon  trust.13  He  may  transfer  it  to  A  for  life  with 
remainder  to  B,  and  the  estate  of  A  and  B  will  be  the  same, 
as  if  the  grantor  had  the  absolute  fee  simple,  as  to  every  one 
except  the  disseisee,  and  as  to  him  also  after  the  Statute  of 
Limitations  has  run.14  If  the  disseisor  creates  chattels  by 
severance  from  his  fee  simple,  the  title  to  these  chattels  is  in 
him  so  fully  that,  so  long  as  the  disseisin  continues,  the  dis- 
seisee cannot  maintain  trover,  detinue  or  replevin  against 


1  Bract.  165  a;  Bateman  v.  Allen,  Cro.  Eliz.  437,  438;  Asher  v.  Whit- 
lock,  L.  R.  1  Q.  B.  1. 

2  Christy  v.  Alford,  IT  How.  601;  Weber  v.  Anderson,  73  111.  439. 

8  Asher  v.  Whitlock,  L.  R.  1  Q.  B.  1;  Haynes  v.  Boardman,  119 
Mass.  414. 

«1  Platt,  Leases,  51. 

BWatkins,  Descents  (4  ed.),  4,  n.  (c)  ;  Currier  v.  Gale,  9  All.  522. 
[Janes  v.  Holmden,  (Kan.  Ap.)  52  Pac.  R.  913.] 

a2  L.  Q.  Rev.  487,  488. 

'Sheetz  v.  Fitzwalter,  5  Barr,  126;  Talbot  v.  Chamberlain,  3  Paige, 
219;  Murray  v.  Emmons,  19  N.  H.  483;  [Switzer  v.  Skiles,  8  111.  529, 
532;  Richards  v.  Jenkins,  18  Q.  B.  Div.  451]. 

8Colgan  v.  Pellew,  48  N.  J.  27;  49  N.  J.  694. 

•Hale  v.  Munn,  4  Gray,  132;  McEntire  v.  Brown,  28  Ind.  347;  Ran- 
dolph v.  Doss,  4  Miss.  205;  1  Scribner,  Dower,  255,  256,  353,  354. 

"Travis  v.  Continental  Co.,  32  Mo.  Ap.  198,  206. 

11  Anon.  Dy.  5,  a. 

12  Y.  B.  19  Hen.  VI.  32-66. 
"Hawksbee  v.  Hawksbee,  11  Hare,  230. 

"Anstee  v.  Nelms,  1  H.  &  N.  225,  232;  Asher  v.  Whitlock,  L.  R.  1 
Q.  B.  1;  Board  v.  Board,  L.  R.  9  Q.  B.  48;  Dalton  v.  Fitzgerald,  [1897] 
2  Ch.  86,  [1897]  1  Ch.  446. 


548  VIII.     PROPERTY  (IN  GENERAL) 

him.1  Nor  an  action  for  money  had  and  received  for  the 
proceeds  of  the  sale  of  the  chattels.2  But  these  actions  are 
given  to  the  disseisor  against  the  disseisee,  if  the  latter  car- 
ries off  the  severed  chattels  before  regaining  the  seisin.]  3 

The  legal  effects  of  the  disseisin  of  chattels  are  most 
vividly  seen  by  looking  at  the  remedies  for  a  wrongful  tak- 
ing. The  right  of  recaption  was  allowed  only  flagrant? 
delicto.  This  meant  in  Britton's  time  the  day  of  the  taking. 
If  the  owner  retook  his  goods  afterwards,  he  forfeited  them 
for  his  "  usurpation."  4  If  the  taking  was  felonious, 5  the 
despoiled  owner  might  bring  an  appeal  of  larceny,  and,  by 

1McConnaughy  v.  Wiley,  33  Fed.  449;  Halleck  v.  Mixer,  16  Cal.  574, 
579;  Page  v.  Fowler,  28  Cal.  605,  39  Cal.  412;  Martin  v.  Thompson,  62 
Cal.  618;  Groom  v.  Alstead,  101  Cal.  425;  Ophir  Co.  v.  Superior  Court, 
147  Cal.  468,  477;  Anderson  v.  Hapler,  34  111.  436;  Nichols  v.  Dewey, 
4  All.  386,  387;  Lehigh  Co.  v.  N.  J.  Co.  55  N.  J.  350;  De  Mott  v.  Hager- 
man,  8  Cow.  220;  Van  Etten  v.  Caines,  3  Keyes,  329,  333;  Stockwell  v. 
Phelps,  34  N.  Y.  363;  Samson  v.  Rose,  65  N.  Y.  411,  419,  431  (semble)  ; 
Hinton  v.  Walston,  115  N.  Ca.  7;  Mather  v.  Trinity  Church,  3  S.  &  R. 
509;  Brown  v.  Caldwell,  10  S.  &  R.  114;  Powell  v.  Smith,  2  Watts,  126; 
Nat.  Co.  v.  Weston,  121  Pa.  485;  Griffin  v.  Pipe  Lines,  172  Pa.  580; 
Churchill  v.  Ackerman,  22  Wash.  227;  Clark  v.  Clyde,  25  Wash.  661. 
The  rule  is  otherwise  in  Michigan.  McKinnon  v.  Master,  104  Mich.  642. 

2Bigelow  v.  Jones,  10  Pick.  161;  Stockman  v.  Phelps,  34  N.  Y.  363; 
Baker  v.  Howell,  6  S.  &  R.  476  (semble). 

8  Brothers  v.  Hurdle,  10  Ired.  490;  Branch  v.  Morrison,  5  Jones,  (N. 
Ca.)  16;  6  Jones,  (N.  Ca.)  16;  Roy  v.  Gardner,  82  N.  Ca.  454;  Lehman 
v.  Kellerman,  65  Pa.  489  (overruling  Elliott  v.  Powell,  10  Watts,  453). 
If,  however,  the  disseisee  recovers  the  seisin  of  the  land  he  may  pro- 
ceed against  the  disseisor  for  the  chattels  or  their  value,  being  treated, 
by  the  fiction  of  relation,  as  if  he  had  held  the  seisin  all  the  time.  But 
as  this  fiction  of  relation  is  based  upon  justice  it  will  not  be  created 
to  the  prejudice  of  one  who  has  bought  the  severed  chattels  of  the  dis- 
seisor without  notice  of  the  disseisin.  Page  v.  Fowler,  39  Cal.  412; 
Johnston  v.  Fish,  105  Cal.  420;  Brothers  v.  Hurdle,  10  Ired.  490,  492; 
Faulcon  v.  Johnston,  102  N.  Ca.  264;  Pac.  Co.  v.  Isaacs  (Oreg.  1908)  96 
Pac.  R.  460;  Reilly  v.  Crown  Co.  213  Pa.  595. 

*  1  Nich.  Britt.  57,  116.  The  right  of  self-help  in  general  was  for- 
merly greatly  restricted.  The  disseisee's  right  of  entry  into  land  was 
tolled  after  five  days.  If  he  entered  afterwards,  the  disseisor  could 
recover  the  land  from  him  by  assize  of  novel  disseisin.  Maitland,  4  L. 
Q.  Rev.  29,  35.  So  the  writ  of  ravishment  of  ward  would  lie  against 
one  entitled  to  the  ward  if  he  took  the  infant  by  force  from  the  wrong- 
ful possessor.  Y.  B.  21  &  22  Ed.  I.  554.  The  lord  must  resort  to  his 
action  to  recover  his  serf,  if  not  captured  infra  tertium  vel  quartum 
diem.  4  L.  Q.  Rev.  31.  A  nuisance  could  be  abated  by  act  of  the 
party  injured,  only  if  he  acted  immediately.  Bract,  f.  233;  1  Nich. 
Br.  403. 

5  Originally  any  taking  without  right,  like  killing  by  accident,  was 
felonious.  In  Bracton's  time,  if  not  earlier,  the  animus  furandi  was 
essential  to  a  felony.  Bract,  f.  136  b. 


67.     AMES:  DISSEISIN  OF  CHATTELS       549 

complying  with  certain  conditions,1  obtain  restitution  of  the 
stolen  chattel.  But  such  was  the  rigor  and  hazard  of  these 
conditions,  that  from  the  middle  of  the  thirteenth  century 
the  appeal  was  largely  superseded  by  the  new  action  of 
trespass.2  If  the  taking  was  not  criminal,  trespass  was  for 
generations  the  only  remedy.3 

Trespass,  however,  was  a  purely  personal  action;  it 
sounded  only  in  damages.  The  wrongful  taking  of  chattels 
was,  therefore,  a  more  effectual  disseisin  than  the  ouster  from 
land.  The  dispossessed  owner  of  land,  as  we  have  seen,  could 
always  recover  possession  by  an  action.  Though  deprived 
of  the  res,  he  still  had  a  right  in  rem.  The  disseisor  acquired 
only  a  defeasible  estate.  One  whose  chattel  had  been  taken 
from  him,  on  the  other  hand,  having  no  means  of  recovering  it 
by  action,  not  only  lost  the  res,  but  had  no  right  in  rem.  The 
disseisor  gained  by  his  tort  both  the  possession  and  the  right 
of  possession ;  in  a  word,  the  absolute  property  in  the  chattel 
taken. 

What  became  of  the  chattel  afterwards,  therefore,  was  no 
concern  of  the  victim  of  the  tort.  Accordingly,  one  need 
not  be  surprised  at  the  following  charge  given  by  Brian, 
C.  J.,  and  his  companions  to  a  jury  in  1486:  "  If  one  takes 
my  horse  vi  et  armis  and  gives  it  to  S,  or  S  takes  it  with 
force  and  arms  from  him  who  took  it  from  me,  in  this  case 
S  is  not  a  trespasser  to  me,  nor  shall  I  have  trespass  against 
him  for  the  horse,  because  the  possession  was  out  of  me  by 

1  See  cases  cited  supra,  p.  543,  n.  2. 

3  A  case  of  the  year  1199  (2  Rot.  Cur.  Reg.  34)  seems  to  be  the 
earliest  reported  instance  of  an  action  of  trespass  in  the  royal  courts. 
Only  a  few  cases  are  recorded  during  the  next  fifty  years.  But  about 
1250  the  action  came  suddenly  into  great  popularity.  In  the  Abbre- 
viatio  Placitorum,  twenty-five  cases  are  given  of  the  single  year  1252- 
1253.  We  may  infer  that  the  writ,  which  had  before  been  granted  as 
a  special  favor,  became  at  that  time  a  writ  of  course.  In  Britton  (f. 
49),  pleaders  are  advised  to  sue  in  trespass  rather  than  by  appeal,  in 
order  to  avoid  "la  perilouse  aventure  de  batayles."  Trespass  in  the 
popular  courts  of  the  hundred  and  county  was  doubtless  of  far  greater 
antiquity  than  the  same  action  in  the  Curia  Regis.  Several  cases  of 
the  reign  of  Henry  I.  are  collected  in  Bigelow,  Placita  Anglo-Nor- 
mannica,  89,  89,  98,  102,  127. 

8  In  early  English  law,  as  in  primitive  law  in  general,  the  principle 
of  parsimony  did  not  permit  concurrent  remedies.  The  lines  were 
drawn  between  the  different  actions  with  great  sharpness.  The  right 
to  sue  a  trespasser  in  replevin  and  detinue  was  a  later  development, 
as  will  be  explained  further  on. 


550  VIII.     PROPERTY   (IN  GENERAL) 

the  first  taking;  then  he  was  not  a  trespasser  to  me,  and  if 
the  truth  be  so,  find  the  defendant  not  guilty."  1  Brooke 
adds  this  gloss,  "  For  the  first  offender  has  gained  the  prop- 
erty by  the  tort."  2 

The  complete  divestiture  of  the  owner's  property  in  a 
chattel  by  a  disseisin  explains  also  a  distinction  taken  in  the 
Year  Books,  which  has  proved  a  stumbling-block  to  com- 
mentators to  the  present  day:  "  Note  by  Fineux,  C.  J.,  and 
Tremayle,  C.  J.  If  I  bail  goods  to  a  man  and  he  gives 
them  to  a  stranger  or  sells  them,  if  the  stranger  takes  them 
without  livery  he  is  a  trespasser,  and  I  shall  have  a  writ  of 
trespass  against  him;  for  by  the  gift  or  sale  the  property 
was  not  changed  but  by  the  taking.  But  if  he  delivered 
them  to  the  vendee  or  donee,  then  I  shall  not  have  trespass."  ; 
At  this  time,  although  anciently  the  rule  was  otherwise,  the 
possession  of  the  bailee  at  will  was  treated  as  the  possession 
of  the  bailor  also.  In  the  first  case,  therefore,  where  there 
was  no  delivery  by  the  bailee,  the  stranger  by  taking  the 
goods  disseised  the  bailor  and  so  was  liable  to  the  latter  in 
trespass.  But  in  the  other  case,  where  the  bailee  delivered 
the  goods  sold,  he  was  the  disseisor.  By  a  single  act  he 
gained  the  absolute  property  in  the  goods  and  transferred 
it  to  the  vendee,  who  was  thus  as  fully  beyond  the  reach  of 
the  disseisee  as  the  vendee  of  the  disseising  trespasser  in  the 
earlier  case  before  Brian,  C.  J.  The  peculiarity  in  the  case 
of  the  bailment  lies  in  the  form  of  the  disseisin.  But  the 
asportation  of  a  chattel  or  the  ouster  from  land,  although 
the  commonest,  were  not  the  only  modes  of  disseisin.  Any 
physical  dealing  with  the  chattel  under  an  assumption  of 
dominion,  or,  to  borrow  a  modern  word,  any  conversion,  was 
a  disseisin.  The  wrongful  delivery  of  the  goods  by  the  bailee 
as  vendor  corresponds  perfectly  to  a  tortious  feoffment  by 
a  termor.  Such  a  feoffment  was  a  disseisin  of  the  landlord ; 

1Y.  B.  21  Ed.  IV.  74-6.  See  to  the  same  effect  Bro.  Ab.  Ej.  Cust. 
8,  and  Tresp.  256;  Y.  B.  2  Ed.  IV.  5-9,  per  Needham,  J.;  Y.  B.  4  H. 
VII.  5-1;  Y.  B.  16  H.  VII.  3,  a-7;  Staunf.  PI.  Cor.  61,  a;  Harris  v. 
Blackhole,  Brownl.  26;  [Day  v.  Austin,  Ow.  70;  Walgrave  v.  Skinner, 
Ow.  120]. 

2  Bro.  Ab.  Tresp.  358. 

8Y.  B.  21  H.  VII.  39-49.  See  also  Y.  B.  2  Ed.  IV.  5-9.  2  Wms. 
Saund.  47  c;  Wright  &  Pollock,  Possession,  169. 


67.     AMES:  DISSEISIN  OF  CHATTELS       551 

and  the  feoff  or,  not  the  feoffee,  was  the  disseisor. 1  The  act 
of  feoffment  was  at  once  an  acquisition  of  a  tortious  fee  and 
a  conveyance. 2 

To-day,  as  every  one  knows,  neither  a  trespasser,  nor  one 
taking  or  buying  from  him,  nor  the  vendee  of  a  bailee,  either 
with  or  without  delivery  by  the  latter,  acquires  the  absolute 
property  in  the  chattel  taken  or  bailed.  The  disseisee  of 
goods,  as  well  as  the  disseisee  of  land,  has  a  right  in  rem. 
The  process  by  which  the  right  m  personam  has  been  trans- 
formed into  a  real  right  may  be  traced  in  the  expansion  of 
the  writs  of  replevin  and  detinue,  and  is  sufficiently  curious 
to  warrant  a  slight  digression. 

Replevin  was  originally  confined  to  cases  of  wrongful  dis- 
tress. It  was  also  the  only  action  in  those  cases,  trespass 
not  being  admissible. 3  A  distrainor,  unlike  a  disseisor,  did 
not  take  the  chattel  under  a  claim  of  absolute  dominion,  but 
only  as  a  security.  He  had  not  even  so  much  possession  as 
a  bailee.  If  the  distress  was  carried  off  by  a  stranger,  the 
distrainor  could  not  maintain  trespass,  4  in  which  action  the 
goods  were  always  laid  as  the  goods  of  the  plaintiff.  That 
action  belonged  to  the  distrainee,  as  the  one  disseised.  The 
distrainor  must  use  either  the  writ  of  rescous  or  de  parco 
fracto,  in  which  the  property  in  the  distress  was  either  laid 
in  the  distrainee,  or  not  laid  in  any  one.  Trespass  and  re- 
plevin were  thus  fundamentally  distinct  and  mutually  exclu- 
sive actions.  The  one  was  brought  against  a  disseisor;  the 
other  against  a  custodian.  The  former  was  a  personal 
action,  the  latter  a  real  action.  Trespass  presupposed  the 
property  in  the  defendant,  whereas  replevin  assumed  the 
property  in  the  plaintiff,  at  the  time  of  action  brought.  5 

1  Bract.   161   b;   Sparks   Case,  Cro.  El.   676;   Co.  Lit.   57   a,  n.    (3); 
Booth,  R.  Act.  (2d  ed.)  285;  2  L.  Q.  Rev.  488;  [1  Nich.  Britt,  278,  287, 
Note  in  MS.  N;  Blunden  v.  Baugh,  Cro.  Car.  302,  304]. 

2  The   conveyance   was   not  necessarily   coextensive   with  the   acquisi- 
tion.    If  the  feoffment  was  for  life  the  reversion  was  in  the  feoffor. 
Challis,  R.  Prop.  329. 

8  Ab.  PI.  265,  col.  2,  rot.  5;  5  Rot.  Par.  139  b. 

4  Y.  B.  20  H.  VII.  1-1;  Rex  v.  Cotton,  Park.  113,  121. 

8  Accordingly,  even  after  replevin  became  concurrent  with  trespass, 
if  a  plaintiff  had  both  writs  pending  at  once  for  the  same  goods,  the 
second  writ  was  abated  for  the  "  contrairiositie "  of  the  supposal  of 
the  two  writs.  Y.  B.  8  H.  VI.  27-17;  22  H.  VI.  15-26;  14  H.  VII. 
12-32. 


552  VIII.     PROPERTY   (IN  GENERAL) 

If,  therefore,  when  the  sheriff  came  to  replevy  goods,  as  if 
distrained,  the  taker  claimed  them  as  his  own,  the  sheriff 
was  powerless.  The  writ  directed  him  to  take  the  goods  of 
the  plaintiff,  detained  by  the  defendant.  But  the  goods  were 
no  longer  the  plaintiff's;  the  defendant  by  his  claim  had 
disseised  the  plaintiff  and  made  them  his  own.  The  plaintiff 
must  abandon  his  action  of  replevin  as  misconceived,  and 
proceed  against  the  defendant,  as  a  disseisor,  by  appeal  of 
felony,  or  trespass. l 

Even  if  the  defendant  allowed  the  sheriff  to  replevy  the 
goods,  he  might  afterwards  in  court  stop  the  action  by  a 
mere  assertion,  without  proof,  of  ownership.  The  goods 
were  returned  to  him  as  goods  wrongfully  replevied,  and 
the  plaintiff,  as  before,  was  driven  to  his  appeal  or  trespass.2 

The  law  was  so  far  changed  by  the  judges  in,  1331,  that  if 
the  defendant  allowed  the  sheriff  to  take  the  goods,  he  could 
not  afterwards  abate  the  action  by  a  claim  of  title.3 

But  it  was  still  possible  for  the  defendant  to  claim  prop- 
erty before  the  sheriff  and  so  arrest  further  action  by  him. 
To  meet  this  difficulty,  the  writ  de  proprietate  probanda  was. 
devised,  probably  in  the  reign  of  Edward  III.  By  this  writ 
the  sheriff  was  directed  to  replevy  the  goods,  notwithstanding 
the  defendant's  claim,  if  by  an  inquest  of  office  the  property 

1 1  Nich.  Britt.  138.  "  If  the  taker  or  detainer  admit  the  bailiff  to 
view  and  avow  the  thing  distrained  to  be  his  property,  so  that  the 
plaintiff  has  nothing  therein,  then  the  jurisdiction  of  the  sheriff  and 
bailiff  ceases.  And  if  the  plaintiff  is  not  villein  of  the  deforceor,  let 
him  immediately  raise  hue  and  cry;  and  at  the  first  county  court  let 
him  sue  for  his  chattel,  as  being  robbed  from  him,  by  appeal  of  felony, 
if  he  thinks  fit  to  do  so."  Compare  the  case  of  an  estray.  1  Nich. 
Britt.  68.  "If  the  lord  avow  it  to  be  his  own,  the  person  demanding 
it  may  either  bring  an  action  to  recover  his  beast  as  lost,  in  form  of 
trespass,  or  an  appeal  of  larceny,  by  words  of  felony." 

2  Y.  B.  21  &  22  Ed.  I.  106;  Y.  B.  32  &  33  Ed.  I.  54.  If  the  defendant, 
instead  of  claiming  title  in  himself,  alleged  title  in  a  third  person,  he 
could  only  defeat  the  action  by  proof  of  the  fact  alleged.  Y.  B.  32 
Ed.  I.  82;  Y.  B.  34  Ed.  I.  148. 

3Y.  B.  5  Ed.  III.  3-11.  The  argument  of  the  defendant,  "And  al- 
though we  are  come  to  court  on  your  suit,  we  shall  not  be  in  a  worse 
plight  here  than  before  the  sheriff;  for  you  shall  be  driven  to  your 
writ  of  trespass  or  to  your  appeal,  and  this  writ  shall  abate,"  though 
supported  by  the  precedents,  was  overruled.  See  also  Y.  B.  21  Ed. 
IV.  64  a-35,  and  Y.  B.  26  H.  VIII.  6-27.  There  is  an  echo  of  the  old 
law  in  Y.  B.  7  H.  IV.  28  b-5.  "  And  also  it  was  said  that  if  one  claims 
property  in  court,  against  this  claim  the  other  shall  not  aver  the  con- 
trary—  credo  quod  non  est  lex" 


67.     AMES:  DISSEISIN  OF  CHATTELS       553 

was  found  in  the  plaintiff's  favor.  This  finding  for  the  plain- 
tiff had  no  further  effect  than  to  justify  the  sheriff  in  re- 
plevying  the  goods,  and  thus  to  permit  the  plaintiff  to  go  on 
with  the  replevin  action  just  as  he  would  have  done  had  the 
defendant  allowed  the  sheriff  to  take  the  goods.  *  Replevin 
thus  became  theoretically  concurrent  with  trespass. 2  A  dis- 
seisor  could  not  thereafter  gain  the  absolute  property  by  his 
tort.  A  writ  in  trespass  for  carrying  off  and  killing  the 
plaintiff's  horse  was  no  longer  assailable  for  repugnancy. 
In  1440,  to  a  count  in  trespass  for  taking  a  horse,  the  de- 
fendant pleaded  that  he  took  it  damage  feasant  to  his  grain, 
which  the  plaintiff  had  carried  off.  It  was  objected  that  the 
plea  was  bad,  as  showing  on  its  face  that  the  grain  was  the 
plaintiff's  by  the  taking.  But  the  court  allowed  the  plea 
on  the  ground  that  the  defendant  might  have  brought  a 
replevin  for  the  grain  which  proved  the  property  in  him  at 
his  election.3  It  became  a  familiar  notion  that  the  dispos- 
sessed owner  might  affirm  the  property  in  himself  by  bring- 
ing replevin,  or  disaffirm  it  by  suing  in  trespass.  In  other 
words,  there  was  a  disseisin  by  election  in  personalty  as  well 
as  in  realty. 

The  disseisee's  right  in  rem,  however,  was  still  a  qualified 

»Y.  B.  1  Ed.  IV.  9-18. 

*Y.  B.  7  H.  IV.  28  b-5,  per  Gascoigne,  C.  J.;  Y.  B.  19  H.  VI.  65-5, 
per  Newton,  C.  J.;  Y.  B.  2  Ed.  IV.  16-8,  per  Danby,  C.  J.;  Y.  B.  6  H. 
VII.  7-4,  per  Brian,  C.  J.,  and  Vavasor,  J.;  Y.  B.  14  H.  VII.  12-22. 
In  fact,  there  are  no  reported  cases  of  replevin  for  trespass  from  the 
time  of  Edward  III.  to  the  present  century.  See  Mellor  v.  Leather,  1 
E.  &  B.  619.  Almost  at  the  same  time  that  the  scope  of  replevin  was 
enlarged,  there  was  a  similar  duplication  of  remedies  against  the  dis- 
seisor  of  land.  Originally,  if  we  except  the  writ  of  right,  the  assize 
of  novel  disseisin  (or  writ  of  entry  in  the  nature  of  assize),  which  was 
the  counterpart  of  trespass  de  bonis  asportatis,  was  the  exclusive  rem- 
edy against  a  disseisor.  Trespass  quare  clausum  fregit  was  confined 
to  cases  of  entry  not  amounting  to  an  ouster.  If,  therefore,  the  de- 
fendant in  a  writ  of  trespass  claimed  the  freehold,  the  writ  was  abated. 
The  plaintiff  must  proceed  against  him  as  a  disseisor  by  the  assize. 
2  Br.  Note  Book,  378;  Ab.  PI.  142,  col.  1,  rot.  9  [1253];  Ab.  PI.  262, 
col.  1,  rot.  18  [1272].  About  1340,  trespass  quare  clausum  was  allowed 
for  a  disseisin.  Y.  B.  11  &  12  Ed.  III.  503-505,  517-519;  Y.  B.  14  Ed 
III.  231. 

8Y.  B.  19  H.  VI.  65-5. 

*Br.  Ab.  Replev.  39;  Y.  B.  6  H.  VII.  8  b-4;  Y.  B.  14  H.  VII.  12-22; 
Russell  v.  Pratt,  4  Leon.  44-46;  Bishop  v.  Montague,  Cro.  Eliz.  824; 
Bagshaw  v.  Gaward,  Yelv.  96;  ColdwelPs  Case,  Clayt.  122,  pi.  215; 
Power  v.  Marshall,  1  Sid.  172;  1  Roper,  H.  &  W.  (Jacob's  ed.)  169. 


554  VIII.     PROPERTY   (IN  GENERAL) 

right;  for  replevin  was  never  allowed  in  England  against  a 
vendee  or  bailee  of  a  trespasser,  nor  against  a  second  tres- 
passer. l  It  was  only  by  the  later  extension  of  the  action  of 
detinue  that  a  disseisee  finally  acquired  a  perfect  right  in 
rem.  Detinue,  although  its  object  was  the  recovery  of  a 
specific  chattel,  was  originally  an  action  ex  contractu.  It 
was  allowed  only  against  a  bailee  or  against  a  vendor,  who 
after  the  sale  and  before  delivery  was  in  much  the  same 
position  as  a  bailee.  So  essential  was  the  element  of  privity 
at  first,  that  in  England,  as  upon  the  Continent,  during  the 
life  of  a  bailee,  he  only  was  liable  in  detinue  even  though  the 
chattel,  either  with  or  without  the  bailee's  consent,  were  in 
the  possession  of  a  third  person.2  In  counting  against  a 
possessor  after  the  bailee's  death,  the  bailor  must  connect 
the  defendant's  possession  with  that  of  the  bailee,  as  by  show- 
ing that  the  possessor  was  the  widow,  heir,  or  executor  of 
the  bailee,  or  otherwise  in  a  certain  privity  with  him.  8  After- 
wards, a  bailor  was  permitted  to  charge  a  sub-bailee  in 
detinue  in  the  lifetime  of  the  bailee.4  This  action  seems  to 
have  been  given  to  a  loser  as  early  as  the  reign  of  Edward 
III.5  But  it  was  a  long  time  before  the  averment  of  the 
plaintiff's  loss  of  his  goods  became  a  fiction.  As  late  as 
1495,  the  conservative  Brian,  C.  J.,  said,  "  He  from  whom 
goods  are  taken  cannot  have  detinue."  6  His  companion, 
Vavasor,  J.,  it  is  true,  expressed  a  contrary  opinion  in  the 
same  case,  as  did  Anderson,  C.  J.,  in  Russell  v.  Pratt  7 
(1579),  and  the  court  in  Day  v.  Bisbitch8  (1586).  But  it 
was  not  until  1600  that  Brian's  opinion  can  be  said  to  have 
been  finally  abandoned.  In  that  year  the  comparatively 
modern  action  of  trover,  which  had  already  nearly  sup- 
planted detinue  sur  trover,  was  allowed  against  a  trespasser; 
although  even  then  two  judges  dissented,  because  by  the 

1  Mennie  v.  Blake,  6  E.  &  B.  847. 

2Y.  B.  24  Ed.  III.  41  a-22;  Y.  B.  43  Ed.  III.  29-11;  [Seld.  Soc.  Set 
Cas.  Ch.  No.  116]. 

8Y.  B.  16  Ed.  II.  490.     But  see  Y.  B.  9  H.  V.  14-22. 

*Y.  B.  11  H.  IV.  46  b-20;  Y.  B.  10  H.  VII.  7-14. 

6Y.  B.  2  Ed.  III.  2-5. 

6Y.  B.  6  H.  VII.  9-4.    See  also  1  Ch.  PL  (7  ed.)  137. 

7  4  Leon.  44,  46. 

8Ow.   70. 


67.     AMES:  DISSEISIN  OF  CHATTELS       555 

taking  "  the  property  and  possession  is  divested  out  of  the 
plaintiff."  As  the  averments  of  losing  and  finding  were 
now  fictions,  trover  was  maintainable  by  the  disseisee  against 
any  possessor. 

The  disseisee's  right  to  maintain  replevin  and  detinue  (or 
trover)  being  thus  established,  we  have  now  to  inquire  how 
far  the  rules  which  were  found  to  govern  in  the  disseisin  of 
land  apply  to  the  disseisin  of  goods. 

So  long  as  the  adverse  possession  continues,  the  dispos- 
sessed owner  of  the  chattel  has,  manifestly,  no  power  of 
present  enjoyment.  Has  he  lost  also  the  power  of  alienation? 
His  right  in  rem,  if  analyzed,  means  a  right  to  recover  pos- 
session by  recaption  or  action.  But  these  rights  are  as  per- 
sonal in  their  nature  as  the  corresponding  rights  of  entry 
or  action  in  the  case  of  land.  It  follows,  then,  that  they  were 
not  transferable.  And  such  was  the  law. 

In  1462,  Danby,  C.  J.,  and  Needham,  J.,  agreed,  it  is 
true,  that  a  bailor  whose  goods  had  been  wrongfully  taken 
from  the  bailee  might  give  them  to  the  trespasser.2  This 
was  against  the  opinion  of  Littleton,  counsel  for  the  plaintiff, 
who  said,  "  I  think  it  is  a  void  gift ;  for  when  S.  took  them 
from  me  [bailee]  the  property  was  in  him  and  out  of  you 
[bailor];  how,  then,  could  you  give  them  to  him?"  "  Et 
bene  dixit"  is  Brooke's  comment.3  The  view  of  the  two 
judges  was  taken  by  Vavasor,  J.,  also,  in  a  like  case  in  1495. 
But  one  of  the  greatest  of  English  judges,  Brian,  C.  J., 
expressed  himself  clearly  to  the  contrary :  "  The  gift  is  void. 
...  In  my  opinion  the  property  is  devested  by  the  taking, 
and  then  he  had  only  a  right  of  property ;  and  so  the  prop- 
erty and  right  of  property  are  not  all  one.  Then,  if  he  has 
only  a  right,  this  gift  is  void;  for  one  cannot  give  his 
right."  4  Three  years  later  he  reaffirmed  his  opinion  in  the 
same  case :  "  The  gift  is  void  to  him  who  had  the  goods  as 
much  as  it  would  be  to  a  stranger,  and  I  think  a  gift  to  a 
stranger  is  void  in  such  a  case."5 

1  Bishop  v.  Montague,  Cro.  El.  824,  Cro.  Jac.  50. 
»Y.  B.  2  Ed.  IV.  16-8;  Perk.  §92. 
8Bro.  Ab.  Replev.  39. 
*Y.  B.  6  H.  VII.  9-4. 
«Y.  B.  10  H.  VII.  27-13. 


556  VIII.     PROPERTY  (IN  GENERAL) 

In  Russell  v.  Pratt1  (1579)  there  is  this  dictum  by  Man- 
wood,  C.  B. :  "  If  my  goods  be  taken  from  me,  I  cannot  give 
them  to  a  stranger;  but  if  my  goods  come  to  another  by 
trover,  I  may  give  them  over  to  another."  The  law  on  this 
point  is  thus  summarized  in  "  Shepard's  Touchstone,"  the 
first  edition  of  which  was  published  in  1648 :  "  Things  in 
action  are  not  grantable  over  to  strangers  but  in  special 
cases.  .  .  .  And,  therefore,  if  a  man  have  disseised  me  of 
my  land  or  taken  away  my  goods,  I  may  not  grant  over  this 
land  or  these  goods  until  I  have  seisin  of  them  again.  .  .  . 
And  if  a  man  take  goods  from  me,  or  from  another  man  in 
whose  hands  they  are;  or  I  buy  goods  of  another  man  and 
suffer  them  in  his  possession,  and  a  stranger  takes  them 
from  him,  it  seems,  in  these  cases,  I  may  give  the  goods  to 
the  trespasser,  because  the  property  of  them  is  still  in  me 
[i.  £.,  his  acceptance  of  them  is  an  admission  of  property  in 
the  donor ;  but  they  cannot  be  given  to  a  stranger,  since 
without  such  an  admission  the  party  has  merely  a  right  of 
action  or  resumption  by  recaption]."1  The  bracketed  part 
of  this  extract  was  added  in  1820  by  Preston,  the  learned 
editor  of  the  sixth  edition.  No  later  allusion  to  this  subject 
has  been  found  in  the  English  books ;  but  there  are  several 
American  decisions  which  might  have  been  given  by  Brian 
himself.  In  McGoon  v.  Ankeny3  (1850),  for  instance,  the 
ratio  decidendi  was  thus  expressed  by  the  court :  "  While  the 
property  was  thus  held  adversely,  the  real  owner  had  but  a 

*4  Leon.  44,  46.  See  also  Rosse  v.  Brandstide,  2  R.  &  M.  R.  438, 
439;  Benjamin  v.  Bank,  3  Camp.  417. 

»Shep.  Touch.   (6  ed.)   240,  241. 

*11  111.  558.  To  the  same  effect,  Goodwyn  v.  Lloyd,  8  Port.  237; 
Brown  v.  Lipscomb,  9  Port.  472;  Dunkin  v.  Williams,  5  Ala.  199; 
O'Keefe  v.  Kellogg,  15  111.  347;  Taylor  v.  Turner,  87  111.  296  (semble}  ; 
Stogdel  v.  Fugate,  2  A.  K.  Marsh.  136;  Young  v.  Ferguson,  1  Litt.  298; 
Gardner  v.  Adams,  12  Wend.  297;  Morgan  v.  Bradley,  3  Hawks,  559; 
Stedman  v.  Riddick,  4  Hawks,  29;  Overton  v.  Williston,  31  Pa.  155. 

But  see  contra,  Tome  v.  Dubois,  6  Wall.  548;  Brig  Sarah  Ann,  0 
Sumn.  206,  211  (semble)  ;  Cartland  v.  Morrison,  32  Me.  190;  Webber 
v.  Davis,  44  Me.  147;  Smith  v.  Kennett,  18  Mo.  154;  Hall  v.  Robinson, 
2  Comst.  296  (semble)  ;  Kimbro  v.  Hamilton,  2  Swan,  190;  [Gaskill  v. 
Barbour,  62  N.  J.  530  (semble)  ;  McGinn  v.  Worden,  3  E.  D.  Sm.  355 
(semble)]. 

Compare  Holly  v.  Huggerford,  8  Pick.  73;  Boynton  v.  Willard,  10 
Pick.  166;  Carpenter  v.  Hale,  8  Gray,  157,  158;  Clark  v.  Wilson,  103 
Mass.  219,  222. 


67.     AMES:  DISSEISIN  OF  CHATTELS       557 

right  of  action  against  the  person  in  possession,  which  was 
not  the  subject  of  legal  transfer."  And  the  case  was  fol- 
lowed in  Illinois  in  1887.1  Again  we  read,  in  Overton  v. 
Williston  2  (1858):  "If  one  wrongfully  converts  the  prop- 
erty of  another  to  his  own  use,  and  continues  in  adverse 
enjoyment  of  it,  the  owner  cannot  sell  to  a  third  person,  so 
as  to  give  his  vendee  a  right  of  action  in  his  own  name." 

Not  much  is  to  be  found  in  the  books  as  to  one's  power 
to  dispose,  by  will,  of  chattels  adversely  held.  It  is  plain, 
however,  that  before  1330  the  disseisee  had  nothing  that  he 
could  bequeath.  At  that  time  the  only  remedies  for  a  wrong- 
ful taking  were  trespass  and  the  appeal  of  felony,  both  of 
which  actions  died  with  the  person  wronged.3  A  statute  in 
that  year  gave  to  the  executor  an  action  to  recover  damages 
against  a  trespasser  in  like  manner  as  the  testator  might 
have  recovered  if  living.4  The  executor  of  a  distrainee  or 
bailor  could  maintain  replevin  or  detinue,  as  the  testator  had 
the  property  at  his  death.  After  these  actions  were  allowed 
against  a  trespasser,  since  the  right  to  maintain  them  proved 
property  in  the  dispossessed  owner  at  his  election,  his  execu- 
tor could  use  them  as  well  as  trespass  against  a  trespasser.5 
It  was,  however,  only  a  right  of  action  that  the  executor 
acquired  in  such  a  case.  The  chattels  themselves  passed  to 
the  executor  only  when  the  testator  died  in  possession.  An 
executor  counting  on  his  title  regularly  stated  that  the  testa- 
tor died  seised.6  In  abridging  one  case,  Fitzherbert  adds, 
"  And  so  see  that  dying  seised  of  goods  is  material." 7 
Finch's  statement  also  is  explicit :  "  All  one's  own  chattels, 
real  ...  or  personal,  but  not  those  he  is  only  to  recover 
damages  for,  as  in  goods  taken  from  him,  or  to  be  accounted 
for,  .  .  .  may  be  given  away  or  devised  by  his  testament."  8 

The  analogy  between  chattels  and  lands  in  regard  to  the 

*Erickson  v.  Lyon,  26  111.  Ap.  17. 
'31  Pa.  155,  160. 
8Staunf.  PL  Cor.  60,  b. 
4  4  Ed.  III.  c.  7. 

'Russell  v.  Pratt,  4  Leon.  44;  Le  Mason  v.  Dixon,  W.  Jones,  173. 
«Y.  B.  47  Ed.  III.  23-55;  Fitz.  Ab.  Replic.  70;  Y.  B.  7  H.  VI.  35- 
36;  Y.  B.  28  H.  VI.  4-19.    See  Hudson  v.  Hudson,  Latch,  214. 

7  Fitz.  Ab.  Replic.  60. 

8  Finch,  Law,  Bk.  2,  c.  15. 


558  VIII.     PROPERTY   (IN  GENERAL) 

assignability  of  the  disseisee's  interest  holds  good  also,  with 
one  exception,  in  the  case  of  involuntary  transfers.  Thus 
the  bankrupt's  right  to  recover  possession  of  goods  wrong- 
fully taken  passes  by  a  true  succession  to  the  statutory  as- 
signee.1 But  it  is  only  a  chose  in  action  that  passes,  not 
the  goods  themselves.2 

In  case  of  death,  the  administrator  represents  the  persona 
of  the  intestate,  as  the  heir  stood  in  the  place  of  the  ances- 
tor. 

The  one  exception  to  the  parallel  between  land  and  goods 
is  the  case  where  the  dispossessed  owner  of  a  chattel  died 
intestate,  leaving  no  next  of  kin,  or  was  convicted  of  felony 
or  outlawed.  His  right  of  action  vested  in  the  Crown,  in 
the  first  case  as  bonum  vacans,  in  the  others  by  forfeiture. 
The  king,  unlike  a  feudal  lord  claiming  by  escheat,  was  a 
true  successor.  He  was  also  entitled  to  choses  in  action  as 
well  as  to  choses  in  possession ;  for  the  sovereign,  whether 
as  assignor  or  assignee,  was  an  exception  to  the  rule  that 
choses  in  action  are  not  assignable,  unless  the  claim  was  for 
a  battery  or  other  personal  injury.  In  1335  an  outlaw  who 
had  been  pardoned  brought  an  action  of  trespass  for  a  bat- 
tery committed  before  the  outlawry.  As  a  pardon  did  not 
carry  with  it  a  restoration  of  anything  forfeited,  it  was 
objected  that  the  claim  was  extinguished.  But  the  court 
gave  judgment  for  the  plaintiff,  Shard  (Sharshull,  C.  J.?) 
saying,  "  If  this  were  an  action  for  goods  and  chattels  car- 
ried off  .  .  .  peradventure  it  would  not  be  entertained; 
because  if  goods  had  been  in  the  outlaw's  possession,  the  king 
would  have  them,  and  for  the  like  reason,  the  king  should 
have  his  action  against  those  who  wrongfully  took  them.  But 
here  the  wrong  would  go  unpunished  if  the  action  were  not 
allowed."  3 

The  lord  of  a  villein  was  entitled  to  the  latter's  chattels 

1  Edwards  v.  Hooper,  11  M.  &  W.  363. 

2 "Where  the  conversion  takes  place  before  the  bankruptcy,  the  as- 
signees have  a  right  of  action,  but  have  not  the  property  in  the  goods." 
Lord  Abinger,  in  Edwards  v.  Hooper,  21  L.  J.  Ex.  304,  305.  The 
learned  Chief  Baron  evidently  used  "  property "  as  Brian,  C.  J.,  did, 
in  contradistinction  to  right  of  property. 

8Y.  B.  29  Lib.  Ass.  pi.  63.  See  also  Y.  B.  6  H.  VII.  9-4,  and  10  H. 
VII.  27-13. 


67.     AMES:  DISSEISIN  OF  CHATTELS       559 

if  he  elected  to  claim  them.  But  he  must,  at  his  peril,  make 
his  election  before  the  villein  was  disseised.  The  villein's 
chose  in  action  against  the  disseisor  was  not  assignable. l 

There  is  nothing  in  the  law  of  personalty  corresponding 
to  dower  in  land.  But  the  husband's  right  to  his  wife's 
chattels  may  be  compared  to  his  right  of  curtesy  in  her  land. 
As  was  seen,  the  husband  of  a  woman  who  was  not  seised 
of  the  land  during  the  marriage  was  not  entitled  to  curtesy. 
So  a  man  who  married  a  disseisee  of  chattels  acquired  no 
interest  therein,  unless  during  the  marriage  he  reduced  her 
right  in  rem  to  possession  by  recaption  or  by  action  in  their 
joint  names.  Her  right  of  action,  in  other  words,  was  no 
more  assignable  than  that  of  the  villein.  Fitzherbert  treated 
the  two  cases  as  illustrations  of  the  same  principle.2  The 
doctrine  was  clearly  stated  by  the  court  in  Wan  v.  Lake.3 
"  If  the  wife  had  been  dispossessed  [of  the  term]  before 
marriage,  and  no  recovery  during  the  coverture,  the  repre- 
sentative of  the  wife  should  have  the  term  and  not  the  hus- 
band, because  it  is  then  a  chose  in  action."  The  rule  has 
been  applied,  in  a  number  of  cases,  to  chattels  personal.  4 

Finally,  the  disseisee  of  a  chattel,  like  the  disseisee  of  land, 
has  at  common  law  nothing  that  can  be  taken  on  execution. 
In  a  valuable  book  published  in  1888  we  read :  "  When  per- 
sonal property  is  held  adversely  to  its  owner,  his  interest 

lulf  the  beasts  of  my  villein  are  taken  in  name  of  distress,  I  shall 
have  a  replevin,  although  I  never  seized  them  before,  for  the  property 
is  in  my  villein,  so  that  suing  of  this  replevin  is  a  claim  which  vests 
the  property  in  me.  But  it  is  otherwise  if  he  who  took  the  beasts 
claimed  the  property."  Fitz.  Ab.  Replevin,  43.  Coke,  following  Fitz- 
herbert, says:  "If  the  goods  of  the  villein  be  taken  by  a  trespass,  the 
lord  shall  have  no  replevin,  because  the  villein  had  but  a  right."  Co. 
Lit.  145  b. 

2  Fitz.  Ab.  Replevin,  43. 

3Gilb.  Eq.  234.  See  also  Co.  Lit.  351  a,  b;  4  Vin.  Ab.  53;  Y.  B. 
20  Ed.  I.  174;  Milne  v.  Milne,  3  T.  R.  627. 

4  Magee  v.  Toland,  8  Port.  36  (semble}  ;  McNeil  v.  Arnold,  17  Ark. 
154,  178  (s'emble)-,  Fightmaster  v.  Beasley,  1  J.  J.  Marsh.  606;  Duckett 
v.  Crider,  11  B.  Mon.  188,  191  (semble)  ;  Sallee  v.  Arnold,  32  Mo.  532, 
540  (semble)  ;  Johnston  v.  Pasteur,  Cam.  &  Nor.  464;  Norfeit  v.  Harris, 
Cam.  &  Nor.  517;  Armstrong  v.  Simonton,  2  Tayl.  266,  2  Murph.  351, 
s.  c.;  Spiers  v.  Alexander,  1  Hawks,  67,  70  (semble) ;  Ratcliffe  v. 
Vance,  2  Mill,  Const.  R.  239,  242  (semble)  ;  Harrison  v.  Valentine,  2 
Call,  487,  cited.  See  also  1  Bishop,  Mar.  Worn.  §71.  But  see  contra, 
Wellborne  v.  Weaver,  17  Ga.  267,  270  (semble)  ;  Pope  v.  Tucker,  23  Ga. 
484,  487  (semble). 


560  VIII.     PROPERTY  (IN  GENERAL) 

therein  is  a  mere  chose  in  action  and  cannot  be  reached  by 
execution,  unless  by  the  provisions  of  some  statute." 

The  position  of  the  disseisor  of  a  chattel  was  the  converse 
of  that  of  the  disseisee.  The  converter,  like  the  disseisor  of 
land,  had  the  power  of  present  enjoyment  and  the  power  of 
alienation.  If  dispossessed  by  a  stranger  he  might  proceed 
against  him  by  trespass,  replevin,  detinue,  or  trover.2  He 
could  sell  the  chattel 3  or  bail  it. 4  It  would  go  by  will  to  the 
executor  or  be  cast  by  descent  upon  the  administrator ; 5 
was  forfeited  to  the  Crown  for  felony,-6  and  was  subject  to 
execution.  A  conversion  by  the  wife,  unless  the  property 
was  destroyed,  was  necessarily  to  the  use  of  the  husband,7 
as  a  disseisin  by  a  villein  must  have  profited  his  lord  if  the 
latter  claimed  it. 

We  have  thus  far  considered  only  the  resemblances  be- 
tween land  and  chattels  in  the  matter  of  seisin  and  disseisin. 
But  our  comparison  would  be  incomplete  if  attention  were 
not  called  to  one  point  of  difference.  One  in  possession  of  a 
horse  or  cow  was  seised  of  the  chattel  itself,  without  more. 
There  could,  therefore,  be  but  a  single  seisin  of  it  at  any 
given  moment.  If,  for  instance,  a  chattel  was  loaned  for  a 
term,  the  bailee  alone  was  seised  of  it.  He,  and  he  only,  could 
be  disseised  of  it.  To  this  day  the  bailor  for  a  term  cannot 
maintain  trespass  or  trover  against  a  stranger  for  a  dis- 
seisin of  the  bailee.  But,  on  the  other  hand,  there  was  no 
such  thing  as  seisin  of  land  simpliciter.  The  seisin  was  al- 
ways qualified  by  the  mode  of  possession.  One  was  seised 

1  Freeman,  Executions  (2d  ed.),  s.  112.  See  to  the  same  effect  Wier 
9.  Davis,  4  Ala.  442;  Horton  v.  Smith,  8  Ala.  900;  Doe  v.  Haskins,  15 
Ala.  620,  622  (semble) ;  Thomas  v.  Thomas,  2  A.  K.  Marsh.  430; 
Uommw.  v.  Abell,  6  J.  J.  Marsh.  476. 

2Bro.  Ab.  Tresp.  433;  Maynard  v.  Bassett,  Cro.  El.  819;  Woadson 
v.  Newton,  2  Str.  777. 

3  James  v.  Pritchard,  7  M.  &  W.  216;  Bigelow,  Estoppel  (4th  ed.), 
489,  490;  Bohannon  v.  Chapman,  17  Ala.  696. 

*Shelbury  v.  Scotsford,  Yelv.  23;  Bigelow,  Estoppel,  490;  [Y.  B.  5 
Hen.  VII  15-5]. 

6Norment  v.  Smith,  1  Humph.  46  and  Moffatt  v.  Buchanan,  11 
Humph.  369,  are  contra.  But  these  decisions  seem  indefensible. 

6  Supra,  p.  24,  n.  3;  Y.  B.  6  H.  VII.  9-4. 

7  Hodges  v.  Sampson,  W.  Jones,  443;  Keyworth  v.  Hill,  3  B.  &  Aid. 
685.     In  Tobey  v.  Smith,  15  Gray,  535,  a  count  alleging  a  conversion 
by  the  wife  of  A  to  their  use  was  adjudged  bad  on  demurrer.     The 
conversirm  should  have  been  laid  to  the  use  of  the  husband  only. 


67.     AMES:  DISSEISIN  OF  CHATTELS       561 

either  ut  de  feodo  vel  libero  tenemento,  or  else  ut  de  termino. 
Accordingly,  wherever  there  was  a  term  there  were  necessarily 
two  distinct  seisins  in  one  and  the  same  land,  at  one  and  the 
same  time.  Both  of  these  seisms  were  lost  by  the  tortious 
entry  of  a  stranger  upon  the  land  under  a  claim  of  right, 
and  the  disseisor  was  exposed  to  two  actions,  —  the  assize 
of  novel  disseisin  by  the  freeholder,  and  the  ejectio  firmce  by 
the  termor.  This  difference  between  land  and  chattels  is  ob- 
viously artificial  and  of  feudal  origin. 

But  if  this  historical  sketch  has  been  accurately  drawn, 
the  disseisin  of  land  finds  its  almost  perfect  counterpart  in 
the  conversion  of  chattels,  notwithstanding  the  difference 
here  indicated.  It  is  still  true  that  the  doctrine  of  disseisin 
belongs  not  to  feudalism  alone,  but  to  the  general  law  of 
property.  In  a  subsequent  paper,  the  writer  will  endeavor 
to  show  that  this  doctrine  is  not  a  mere  episode  in  English 
legal  history,  but  that  it  is  a  living  principle,  founded  in 
the  nature  of  things,  and  of  great  practical  value  in  the 
solution  of  many  important  questions. 


THE    NATURE    OF    OWNERSHIP 

In  the  foregoing  pages  the  writer  has  endeavored  to  show, 
in  the  light  of  history,  that  disseisin  was  not  a  feudal  doc- 
trine, but  a  principle  of  property  in  general,  personal  as 
well  as  real.  Conversion  of  chattels,  we  found,  differed  from 
disseisin  of  land  in  name,  but  not  in  substance.  In  each  case 
the  effect  of  the  tort  was  to  transfer  the  res  to  the  wrong- 
doer, and  to  cut  down  the  interest  of  the  party  wronged  to 
a  mere  right  to  recover  the  res.  Or,  as  the  sagacious  Brian, 
C.  J.,  put  it,  the  one  had  the  property,  the  other  only  the 
right  of  property. 

The  disseisor,  whether  of  land  or  chattels,  was  said  to 
have  the  property,  for  these  reasons.  So  long  as  the  dis- 
seisin continued  he  had  the  power  of  present  enjoyment  of 
the  res;  his  interest,  although  liable  to  be  determined  at  any 
moment  by  the  disseisee,  was  as  fully  protected  against  all 
other  assailants  as  the  interest  of  an  absolute  owner;  and, 


562  VIII.     PROPERTY  (IN  GENERAL) 

finally,  his  interest  was  freely  transferable,  both  by  his  own 
act  and  by  operation  of  law,  although,  of  course,  by  reason 
of  its  precarious  nature,  its  exchangeable  value  was  small. 
The  disseisee,  on  the  other  hand,  was  said  to  have  a  mere 
right  of  property,  because,  although  he  was  entitled  to  re- 
cover the  res  by  self-redress,  or  by  action  at  law,  this  was 
his  only  right.  The  disseisin  deprived  him  of  the  two  con- 
spicuous marks  of  perfect  ownership.  He  could  neither 
enjoy  the  land  or  chattel  in  specie,  nor  bring  either  of  them 
to  market.  The  interest  of  the  disseisor  might  have  little 
exchangeable  value ;  but  that  of  the  disseisee  had  none. 
For,  as  we  have  seen,  this  interest,  being  a  chose  in  action, 
was  not  transferable  at  common  law,  either  by  conveyance 
inter  vivos,  or  by  will,  nor  even,  as  a  rule,  by  operation  of 
law. 

Are  these  doctrines  of  the  old  common  law  accidents  of 
English  legal  history,  or  are  they  founded  in  the  nature 
of  things?  Do  they  chiefly  concern  the  legal  antiquarian, 
or  have  they  also  a  practical  bearing  upon  the  litigation  of 
to-day?  To  answer  these  questions,  it  will  be  necessary,  in 
the  first  place,  to  analyze  the  idea  of  "  ownership "  or 
"  property,"  in  the  hope  of  working  out  a  definition  that 
will  bear  the  test  of  application  to  concrete  cases ;  and, 
secondly,  an  attempt  must  be  made  to  explain  the  reason  of 
the  rule  that  choses  in  action  are  not  assignable. 

It  is  customary  to  speak  of  one  as  owner  of  a  thing,  al- 
though he  has  ceased  to  possess  it  for  a  time,  either  by  his 
own  act,  as  in  the  case  of  a  lease  or  bailment,  or  without 
his  consent,  as  in  the  case  of  a  loss  or  disseisin.  And  yet 
every  one  would  admit  that  the  power  of  present  enjoyment 
is  one  of  the  attributes  of  perfect  ownership.  It  is  evident, 
therefore,  that  it  is  only  by  an  inaccurate,  or,  at  least,  ellip- 
tical use  of  language,  that  a  landlord,  bailor,  loser,  or  dis- 
seisee can  be  called  a  true  owner.  The  potential  is  treated 
as  if  actually  existent.  On  the  other  hand,  no  one  will 
affirm  that  the  tenant,  bailee,  finder,  or  disseisor  can  be  prop- 
erly described  as  owner.  For  although  they  all  have  the 
power  of  present  enjoyment,  and,  consequently,  the  power 
of  transfer,  their  interest  is  either  of  limited  duration,  or 


67.     AMES:  DISSEISIN  OF  CHATTELS       563 

altogether  precarious.  It  would  seem  to  follow,  therefore, 
that  wherever  there  is  a  lease,  bailment,  loss,  or  disseisin  of 
a  res,  no  one  can  be  said  to  be  the  full  owner  of  it.  And 
this,  it  is  submitted,  is  the  fact.  Only  he  in  whom  the  power 
to  enjoy  and  the  unqualified  right  to  enjoy  concur  can  be 
called  an  owner  in  the  full  and  strict  sense  of  the  term.  The 
correctness  of  this  conclusion  is  confirmed  by  the  opinion 
of  Blackstone,  expressed  with  his  wonted  felicity.  After 
speaking  of  the  union  in  one  person  of  the  possession,  the 
right  of  possession,  and  the  right  of  property,  he  adds :  "  In 
which  union  consists  a  complete  title  to  lands,  tenements,  and 
hereditaments.  For  it  is  an  ancient  maxim  of  the  law,  that 
no  title  is  completely  good,  unless  the  right  of  possession  be 
joined  with  the  right  of  property;  which  right  is  then  de- 
nominated a  double  right,  jus  duplicatum,  or  droit  droit. 
And  when  to  this  double  right  the  actual  possession  is  also 
united,  there  is,  according  to  the  expression  of  Fleta,  juris 
et  seisince  conjunctio,  then,  and  then  only,  is  the  title  com- 
pletely legal."  1 

A  true  property  may,  therefore,  be  shortly  defined  as  pos- 
session coupled  with  the  unlimited  right  of  possession.  If 
these  two  elements  are  vested  in  different  persons  there  is 
a  divided  ownership.  Let  us  test  these  results  by  consider- 
ing some  of  the  modes  by  which  a  perfect  title  may  be  ac- 
quired by  one  who  has  neither,  or  only  one  of  these  two 
elements  of  complete  ownership. 

The  typical  case  of  title  by  original  acquisition  is  title 
by  occupation.  For  the  occupier  of  a  res  nullius  does  ac- 
quire a  perfect  title  and  not  merely  possession.  The  fisher- 
man who  catches  a  fish  out  of  the  sea,  or  the  sportsman  who 
bags  a  bird,  is  at  once  absolute  owner.  He  has  possession 
with  the  unqualified  right  of  possession,  since  there  is  no  one 
in  rerum  natura  who  can  rightfully  interfere  with  him.  It 
Is  on  the  same  principle  that  a  stranger  who  occupies  land 
on  the  death  of  a  tenant  pur  auter  vie  is  owner  of  the  residue 
of  the  life  estate.  For  no  one  during  the  life  of  cestui  que 
vie  can  legally  disturb  him. 

3?  Bl.  Com.  199.  See  also  ibid.  196:  "And,  at  all  events,  without 
such  actual  possession  no  title  can  be  completely  good." 


564  VIII.     PROPERTY  (IN  GENERAL) 

A  derivative  title  is  commonly  acquired  from  an  owner 
by  purchase  or  descent.  The  title  in  such  cases  is  said  to 
pass  by  transfer.  For  all  practical  purposes  this  is  a  just 
expression.  But  if  the  transaction  be  closely  scrutinized, 
the  physical  res  is  the  only  thing  transferred.  The  seller's 
right  of  possession,  being  a  relation  between  himself  and  the 
res,  is  purely  personal  to  him,  and  cannot,  in  the  nature  of 
things,  be  transferred  to  another.  The  purchaser  may  and 
does  acquire  a  similar  and  coextensive  right  of  possession, 
but  not  the  same  right  that  the  seller  had.  What  really 
takes  place  is  this :  the  seller  transfers  the  res  and  abandons 
or  extinguishes  his  right  of  possession.  The  buyer's  pos- 
session is  thus  unqualified  by  the  existence  of  any  right  of 
possession  in  another,  and  he,  like  the  occupant,  and  for  the 
same  reason,  becomes  absolute  owner. 

There  is  one  curious  case  of  derivative  title  which  may  be 
thought  to  confirm  in  a  somewhat  striking  manner  the  accu- 
racy of  the  definition  here  suggested.  If  a  chattel,  real  or 
personal,  was  granted  or  bequeathed  to  one  for  life,  the 
grantee  or  legatee  became  not  only  tenant  for  life,  but  abso- 
lute owner  of  it.  In  other  words,  there  could  be  no  reversion 
or  remainder  after  a  life  estate  in  a  chattel.  Possibly  others 
may  have  been  as  much  perplexed  as  the  present  writer  in 
seeking  for  the  reason  of  this  rule.  The  explanation  is,  how- 
ever, simple.  The  common-law  procedure,  established  when 
such  limitations  of  chattels  were  either  unknown  or  extremely 
rare,  gave  the  reversioner  and  remainderman  no  remedy 
against  the  life  tenant.  There  was  no  action  for  chattels 
corresponding  to  the  formedon  in  reverter  and  remainder  for 
land.  Detinue  would,  of  course,  lie  in  general  on  a  contract 
of  bailment ;  but  the  contract  of  bailment,  like  a  contract 
for  the  payment  of  money,  must  be  conceivably  performable 
by  the  obligor  himself,  and  therefore  before  his  death;  he 
could  not  create  a  duty  binding  only  his  executor.1  Con- 
sequently, there  being  no  right  of  action  against  him,  the 
life  tenant's  power  of  enjoyment  was  unrestricted.  His 
ownership  was  necessarily  absolute.2 

1Perrot  v.  Austin,  Cro.  El.  222;  Cover  v.  Stem,  67  Md.  449. 

*  After  a  time  the  chancellors  gave  relief  by  compelling  life  tenants 


67.     AMES:  DISSEISIN  OF  CHATTELS       565 

Another  rule,  now  obsolete,  admits  of  a  similar  explana- 
tion. In  the  fourteenth  century,  as  we  have  seen,  a  tres- 
passer acquired  the  absolute  property  in  the  chattel  wrong- 
fully taken.  The  common  law  gave  the  dispossessed  owner 
no  remedy  for  its  recovery.  There  was  no  assise  of  novel- 
disseisin  for  chattels.  Replevin  was  restricted  to  cases  o£ 
wrongful  distress.  Detinue,  originally  founded  upon  a  bail- 
ment, and  afterwards  extended  to  cases  of  losing  and  finding, 
was  not  allowed  against  a  trespasser  until  about  1600. 
Trespass  was  therefore  the  owner's  only  action;  but  Tres- 
pass sounded  in  damages.  Tlie  trespasser's  possession  being 
inviolable,  he  was  necessarily  owner. 

A  derivative  title  may  be  acquired  by  an  equitable  estop- 
pel. If  the  owner  of  land  permits  another  to  sell  and  convey 
it,  as  if  it  were  the  seller's  own,  the  purchaser  gets  at  law 
only  the  seisin.  The  original  owner's  title,  that  is,  his  right 
to  recover  the  seisin,  is  not  otherwise  affected  by  the  convey- 
ance. But  a  court  of  equity  will  grant  a  permanent  injunc- 
tion against  the  owner's  assertion  of  his  common-law  right, 
and  thereby  practically  nullify  it,  so  that  the  purchaser's 
title  is  substantially  perfect. 

Where  the  two  elements  of  ownership  are  severed,  as  by 
a  disseisin,  and  vested  in  two  persons,  either  may  conceivably 
make  his  defective  title  perfect ;  but  the  mode  of  accomplish- 
ing this  is  different  in  the  two  cases.  The  disseisee  may  re- 
gain his  lost  possession  by  entry  or  recaption,  by  action  at 
law,  or  by  a  voluntary  surrender  on  the  part  of  the  disseisor. 
In  each  of  these  ways  his  title  becomes  complete,  and  is  the 
result  of  a  transfer,  voluntary  or  involuntary,  of  the  phys- 
ical res. 

The  perfection  of  the  title  of  the  disseisor,  on  the  other 
hand,  is  not  accomplished  through  a  transfer  to  him  of  the 
disseisee's  right  to  recover  possession.  In  the  very  nature 
of  things,  this  right  of  the  dispossessed  owner  cannot  be 

to  give  bonds  that  the  reversioners  and  remaindermen  should  have  the 
chattels.  Warman  v.  Seaman,  Freem.  C.  C.  306,  307;  Howard  v.  Duke 
of  Norfolk,  2  Sw.  464;  1  Fonb.  Eq.  213,  n.;  [Cole  v.  Moore,  Moo.  806]. 
And  now  either  in  equity  or  at  law  the  reversioners  and  remaindermen 
are  amply  protected.  The  learning  on  this  point,  together  with  a  full 
citation  of  the  authorities,  may  be  found  in  Gray,  Perpetuities,  §§  78-98. 


566  VIII.     PROPERTY   (IN  GENERAL) 

conveyed  to  the  wrongful  possessor.  It  would  be  absurd  to 
speak  of  such  possessor  acquiring  a  right  to  recover  pos- 
session from  himself,  which  would  be  the  necessary  conse- 
quence of  the  supposed  transfer.  But  the  disseisee's  right, 
although  not  transferable,  may,  nevertheless,  be  extin- 
guished. And  since,  by  its  extinguishment,  the  possession 
of  the  disseisor  becomes  legally  unassailable,  the  latter's 
ownership  is  thereby  complete. 

The  extinguishment  may  come  about  in  divers  ways:  — 

(1.)  By  a  release.  "Releases  of  this  kind  must  be  made 
either  to  the  disseisor,  his  feoffee,  or  his  heir.  In  all  these 
cases  the  possession  is  in  the  releasee ;  the  right  in  the  re- 
leasor  and  the  uniting  the  right  to  the  possession  completes 
the  title  of  the  releasee."  l  In  feoffments  and  grants  it  was 
a  rule  that  the  word  "  heirs  "  was  essential  to  the  creation 
of  an  estate  of  inheritance.  But,  as  Coke  tells  us,  "  When 
a  bare  right  is  released,  as  when  the  disseisee  releases  to 
the  disseisor  all  his  right,  he  need  not  speake  of  his  heires."  2 
This  distinction  would  seem  to  be  due  to  the  fact  that  a  re- 
lease operates,  not  as  a  true  conveyance,  but  by  way  of  ex- 
tinguishment. 

(2.)  By  marriage.  As  we  have  seen  in  the  preceding 
article,3  if  a  woman,  who  was  dispossessed  of  her  land  or 
chattels,  married,  her  right  of  action  against  the  wrong-doer, 
not  being  assignable,  did  not  pass  to  her  husband.  If, 
therefore,  she  died  before  possession  was  regained,  the  hus- 
band had  no  curtesy  in  the  land,  and  the  right  to  recover 
the  chattel  passed  to  her  representative.  But  if  the  dis- 
possessed woman  can  be  imagined  to  marry  the  dispossessor, 
it  seems  clear,  although  no  authority  has  been  found,4  that 
in  that  highly  improbable  case  the  marriage,  by  suspending 
and  consequently  extinguishing  her  right  of  action,  would 
give  the  husband  a  fee  simple  in  the  land  and  absolute  own- 
ership of  the  chattel. 

(3).  By  death.     If  a  man  were  disseised  by  his  eldest  son 

aCo.  Lit.  274  a,  Butler's  note  [237]. 
*Co.  Lit.  9  b. 

3  Supra,  27,  38. 

4  A  woman  by  marrying  her  bailee  or  debtor  extinguished  the  bail- 
ment or  debt.     Y.  B.  21  H.  VII.  29-4. 


67.     AMES:  DISSEISIN  OF  CHATTELS       567 

and  died,  the  son  and  heir  would  be  complete  owner;  for 
death  would  have  removed  the  only  person  in  the  world 
who  could  legally  assail  his  possession.  The  law  of  trusts 
furnishes  another  illustration.  The  right  of  a  cestui  que 
trust,  it  is  true,  is  not  a  right  in  rem,  but  a  right  in  per- 
sonam.  Nevertheless  it  relates  to  a  specific  res,  and  so  long 
as  it  exists,  practically  deprives  the  trustee  of  the  benefits 
of  ownership.  If  this  right  of  the  cestui  que  trust  could  be 
annihilated,  the  trustee  would  be  owner  in  substance  as  well 
as  in  name.  This  annihilation  occurred  in  England,  if  the 
cestui  que  trust  of  land  died  intestate  and  without  heirs,  in- 
asmuch as  a  trust  of  land  did  not  escheat  to  the  crown  or 
other  feudal  lord.1  The  trust  was  said  to  sink  for  the  bene- 
fit of  the  trustee,  and  for  the  obvious  reason  that  no  one  could 
call  him  to  account. 

(4.)  By  lapse  of  time.  Title  by  prescription  was  an  im- 
portant chapter  in  the  Roman  law.  Continuous  possession, 
in  good  faith,  although  without  right,  gave  the  possessor, 
after  a  given  time,  a  perfect  title.  The  civilians,  as  is  shown 
by  the  requisite  of  bona  fides,  looked  at  the  matter  chiefly 
from  the  side  of  the  adverse  possessor.  In  England  the  point 
of  view  is  different.  English  lawyers  regard  not  the  merit 
of  the  possessor,  but  the  demerit  of  the  one  out  of  possession. 
The  statutes  of  limitation  provide,  in  terms,  not  that  the 
adverse  possessor  shall  acquire  title,  but  that  one  who  neg- 
lects for  a  given  time  to  assert  his  right  shall  not  thereafter 
enforce  it.  Nevertheless,  the  question  of  bona  fides  apart, 
there  is  no  essential  difference  between  the  two  systems  on  the 
point  under  discussion.  In  the  English  law,  no  less  than 
in  the  Roman  law,  title  is  gained  by  prescriptive  acquisition.2 
As  a  matter  of  legal  reasoning  this  seems  clear.  For,  as 
already  pointed  out,  the  only  imperfection  in  the  disseisor's 

1  Burgess  v.  Wheate,  1  W.  Bl.  123;  Ames,  Cas.  on  Trusts,  501,  511, 
n.   1.     By  St.  47   and  48  Viet.   c.   71,  §4,  equitable  interests   do  now 
escheat.    It  has  been  urged  by  Mr.  F.  W.  Hardman,  with  great  ability, 
that  a  trust  in  land  ought  to  have  been  held  to  pass  to  the  sovereign 
after  the  analogy  of  bona  vacantia.     4  L.  Q.  Rev.  330-336.     And  this 
view  has  met  with  favor  in  this  country.    Johnston  v.  Spicer,  107  N.  Y. 
185;  Ames,  Cas.  on  Trusts,  511,  n.  1. 

2  The  writer   regrets   to   find   himself  in   disaccord   upon   this   point 
with  the  opinion  expressed  incidentally  by  Professor  Langdell,  in  his 
Summary  of  Equity  Pleading  (2  ed.),  §122. 


568  VIII.     PROPERTY   (IN  GENERAL) 

title  is  the  disseisee's  right  to  recover  possession.  When  the 
period  of  limitation  has  run,  the  statute,  by  forbidding  the 
exercise  of  the  right,  virtually  annihilates  it,  and  the  im- 
perfect title  must  become  perfect. 

This  conclusion  is  abundantly  supported  by  authority 
from  Bracton's  time  down :  "  Longa  enim  possessio  .  .  . 
yarit  jus  possidendi  et  tollit  actionem  vero  domino  petenti, 
quandoque  unam,  quandoque  aliam,  quandoque  omnem  .  .  . 
aSic  enim  .  .  .  acquiritur  possessio  et  liberum  tenementum 
sine  titulo  et  traditione,  per  patientiam  et  negligentiam  veri 
domini."  l 

Blackstone  is  even  more  explicit:  "  Such  actual  possession 
is  prima  facie  evidence  of  a  legal  title  in  the  possessor ;  and 
it  may,  by  length  of  time,  and  negligence  of  him  who  hath 
the  right  by  degrees,  ripen  into  a  perfect  and  indefeasible 
title."  2  Lord  Mansfield  may  also  be  cited:  "  Twenty  years' 
adverse  possession  is  a  positive  title  to  the  defendant ;  it  is 
not  a  bar  to  the  action  or  remedy  of  the  plaintiff  only,  but 
takes  away  his  right  of  possession."  3 

Sir  Thomas  Plummer,  M.  R.,  has  expressed  himself  to  the 
same  effect  as  to  equitable  interests :  "  If  the  negligent  owner 
has  forever  forfeited  by  his  laches  his  right  to  any  remedy 
to  recover,  he  has  in  effect  lost  his  title  forever.  The  de- 
fendant keeps  possession  without  the  possibility  of  being  ever 
disturbed  by  any  one.  The  loss  of  the  former  owner  is  neces- 
sarily his  gain ;  it  is  more,  he  gains  a  positive  title  under 
the  statute  at  law,  and  by  analogy  in  equity." 

There  are,  to  be  sure,  occasional  dicta  to  the  effect  that 
the  statute  of  James  I.  only  barred  the  remedy  without  ex- 

1  Bract.  52  a. 

2 2  Bl.  Com.  196;  see  also  3  Bl.  Com.  196;  1  Hares,  Conveyancing 
(5  ed.),  270;  Stokes  t>.  Berry,  2  Salk.  421,  per  Lord  Holt.  Butler's 
note  in  Co.  Lit.  239  a  is  as  follows:  "But  if  A.  permits  the  possession 
to  be  withheld  from  him  [by  B.]  beyond  a  certain  period  of  time, 
without  claiming  it  ...  B.'s  title  in  the  eye  of  the  law  is  strengthened, 
and  A.  can  no  longer  recover  by  a  possessory  action,  and  his  only 
remedy  then  is  by  an  action  on  the  right  ...  so  that  if  he  fails  to 
bring  his  writ  of  right  within  the  time  limited  for  the  bringing  of  such 
writs,  he  is  remediless,  and  the  title  of  the  dispossessor  is  complete." 

8  Taylor  v.  Horde,  1  Burr.  60,  119.  [See  Leffingwell  v.  Warren,  2 
Black,  599,  605,  per  Swayne  J.;  Davis  v.  Mills,  194  U.  S.  451,  456-7  per 
Holmes  J.;  Moore  v.  Luce,  29  Pa.  260,  262,  per  Lewis  C.  J.] 

*  Cholmondeley  v,  Clinton,  2  Jac.  &  W.  1,  156. 


67.     AMES:  DISSEISIN  OF  CHATTELS       569 

tinguishing  the  right,  and  that  the  right  which  would  sup- 
port a  writ  of  right  or  other  droitural  action  never  died. 
An  immortal  right  to  bring  an  eternally  prohibited  action 
is  a  metaphysical  subtlety  that  the  present  writer  cannot 
pretend  to  understand.1  Fortunately  these  dicta  have  had 
no  other  effect  than  to  bring  some  unnecessary  confusion 
of  ideas  into  this  subject.  The  logic  of  facts  has  proved 
irresistible  in  the  decision  of  concrete  cases.  The  courts 
have  uniformly  held  that  a  title  gained  by  lapse  of  time  is 
not  to  be  distinguished  from  a  title  acquired  by  grant.2 
Thus,  if  the  prescriptive  owner  desires  to  transfer  his  title, 
he  must  observe  the  usual  formalities  of  a  conveyance;  he 
cannot  revest  the  title  in  the  disseisee  by  disclaiming  the 
benefit  of  the  statute.3  His  title  is  so  perfect  that  a  court 

1  ["  The  idea  that  the  title  to  property  can  survive  the  loss  of  every 
remedy  known  to  the  law  for  reducing  it  to  possession  and  enjoyment 
would  seem  to  have  but  small  support  in  logic  or  reason."    Per  O'Brien 
J.  in  Baker  v.  Oakwood,  123  N.  Y.  16,  26.]     The  notion  that  a  debt  sur- 
vives the  extinction  of  all  remedies  for  its  enforcement  is  peculiar  to 
English  and  American  law,  and  even  in  those  systems  cannot  fairly  be 
deduced  from  the  authorities  commonly  cited  in  its  support.     It  is  not 
because  the  debt  continues,  that  a  new  promise  to  pay  a  debt  barred 
by  the  statute  is  binding;    but  because  the  extinguishment  of  the  cred- 
itor's right  is  not  equivalent  to  performance  by  the  debtor.     The  moral 
duty  to  pay  for  the  quid  pro  quo  remains,  and  is  sufficient  to  support 
the  new  promise.    It  is  because  this  moral  duty  remains  that  the  debtor, 
though  discharged  from  all  actions,  cannot,  without  payment,  recover 
any  security  that  the  creditor  may  hold.     Again,  it  has  been  urged  that 
the  statute  affects  the  remedy,  but  not  the  right,  because  the  lapse  of 
the  statutory  time  in  the  jurisdiction  of  the  debtor  is  no  bar  to  an 
action  in  another  jurisdiction.     But  this   rule  admits   of   another  ex- 
planation.    A  debt  being  transitory,  a  creditor  has  an  option,  from  the 
moment  of  its  creation,  to  sue  the  debtor  wherever  he  can  find  him. 
The  expiration  of  the  period  of  limitation  in  one  jurisdiction,  before 
he  exercises  his  option,  has  no  effect  upon  his  right  to  sue  elsewhere. 
But  it  extinguishes  his  right  to  sue  in  the  jurisdiction  where  the  statute 
has   run,   and   a   subsequent   repeal   of   the   statute  will   not   revive   it. 
Cooley,  Const.  Lim.  365.    The  case  of  Campbell  v.  Holt,  115  U.  S.  620, 
contra,  stands  almost  alone. 

2  [This  statement  is  too  sweeping.    A  conveyance  by  A  of  Blackacre, 
wholly  surrounded  by  other  land  of  A,  would  give  the  grantor  by  im- 
plication a  way  of  necessity  across  the  surrounding  land.     But  a  dis- 
seisor  of  Blackacre  acquires  no  way  of  necessity.    Wilkes  v.  Greenway, 
6  T.  L.  R.  449 ;  McLaren  v.  Strachan,  23  Ont.  L.  R.  120,  n.] 

'Sanders  v.  Sanders,  19  Ch.  Div.  373;  Hobbs  v.  Wade,  36  Ch.  D.  553; 
Jack  v.  Walsh,  4  Ir.  L.  R.  254;  Doe  v.  Henderson,  3  Up.  Can.  Q.  B.  486; 
Mclntyre  v.  Canada  Co.,  18  Grant,  Ch.  367;  Bird  v.  Lisbros,  9  Cal.  1,  5 
(semble);  School  District  v.  Benson,  31  Me.  381;  Austin  v.  Bailey,  37 
Vt  219;  Hodges  v.  Eddy,  41  Vt.  485;  [Kibble  v.  Fairthorne  [1895]  1 
Ch.  219;  Jones  v.  Williams,  108  Fla.  282;  Parham  v.  Dedman,  66  Ark. 


570  VIII.     PROPERTY  (IN  GENERAL) 

of  equity  will  compel  its  acceptance  by  a  purchaser.1  A 
repeal  of  the  statute  will  not  affect  his  title.  2  If  dispossessed 
by  the  disseisee  after  the  statute  has  run,  he  may  enforce  his 
right  of  entry  or  action  against  him  as  he  might  against 
any  other  intruder.3  He  may  even  maintain  a  bill  in  equity 
to  remove  the  cloud  upon  his  title,  created  by  the  document- 

26;  Shirley  v.  Whitlow,  80  Ark.  444;  Hudson  v.  Stilwell,  80  Ark.  575; 
Brown  v.  Cockerell,  33  Ala.  38;  Todd  v.  Kauffman,  19  Dist.  Col.  304; 
111.  Co.  v.  Wakefield,  173  111.  565;  Riggs  v.  Riley,  113  Ind.  208;  Bunce 
v.  Bidwell,  43  Mich.  542 ;  Sage  v.  Rudnick,  67  Minn.  362 ;  Allen  v.  Mans- 
field, 82  Mo.  688;  Sailor  v.  Hertzogg,  2  Barr,  182,  184;  Bradford  v. 
Guthrie,  4  Brewst.  (Pa.)  351,  361;  Bruce  v.  Washington,  80  Tex.  368; 
Hughes  v.  Graves,  39  Vt.  359,  365;  McDonald  v.  Mclntosh,  8  Up.  Can. 
Q.  B.  388]. 

1  Scott  v.  Nixon,  3  Dr.  &  War.  388,  405 ;  Sands  v.  Thompson,  22  Ch. 
D.  614;  Games  v.  Bonnor,  54  L.  J.  Ch.  517;  [Cox  v.  Cox,  7  Dist.  Col.  1; 
Crowell  v.  Druley,  19  111.  Ap.  509;  Tewksbury  v.  Howard,  138  Ind.  103; 
Foreman  v.  Wolf   (Md.  1894),  29  Att.  R.  837;  Trustees  v.  Hilken,  84 
Md.  170;  Erdman  v.  Corse,  87  Md.  506;  Regents  v.  Calvary  Church,  104 
Md.  635;  Dickerson  v.  Kirk,  105  Md.  638;  Ballou  v.  Sherwood,  32  Neb. 
667;   Barnard  v.  Brown,  112  Mich.  452;  Seymour  v.  DeLancey,  Hopk. 
436;  Murray  v.  Harway,  56  N.  Y.  337,  344;  Shriver  v.  Shriver,  86  N.  Y. 
o75;  Ottinger  v.  Strasburger,  33  Hun.  466  affd.  102  N.  Y.  692;  O'Connor 
v.  Huggins,  113  N.  Y.  511;  Pell  v.  Pell,  65  N.  Y.  Ap.  Div.  388;  Pratt  v. 
Eby,  67  Pa.  396;  Shober  v.  Dutton,  6  Phila.  185]. 

2  Campbell  v.  Holt,  115  U.  S.  620,  622  (semble)  ;  Trim  v.  McPherson, 
7  Cold.  15;  Grigsby  v.  Peak,  57  Tex.  142;  Sprecker  v.  Wakely,  11  Wis. 
432;  Hill  v.  Kricke,  11  Wis.  442;  Knox  v.  Cleveland,  13  Wis.  245;  [Hall 
v.  Webb,  21  W.  Va.  320;  McEldowney  v.  Webb,  44  W.  Va.  711]. 

3Brassington  v.  Llewellyn,  27  L.  J.  Ex.  297;  Bryan  v.  Cowdal,  21 
W.  R.  693;  Rains  v.  Buxton,  14  Ch.  D.  537;  Groome  v.  Blake,  8  Ir.  C.  L. 
3  Ont.  R.  26;  Holtzapple  v.  Phillibaum,  4  Wash.  356;  Barclay  v.  Smith, 
66  Ala.  230  (semble)  ;  Jacks  v.  Chaffin,  34  Ark.  534;  Clarke  v.  Gilbert, 
39  Conn.  94;  Doe  v.  Lancaster,  5  Ga.  39;  McDuffee  v.  Sinnott,  119  111. 
449;  Brown  v.  Anderson,  90  Ind.  93;  Chiles  v.  Jones,  4  Dana,  479; 
Armstrong  v.  Risteau,  5  Md.  256;  Littlefield  v.  Boston,  146  Mass.  268; 
Jones  v.  Brandon,  59  Miss.  585;  Biddle  v.  Mellon,  13  Mo.  335;  Jackson 
v.  Oltz,  8  Wend.  440;  Pace  v.  Staton,  4  Ired.  32;  Pederick  v.  Searle, 
5  S.  &  R.  236;  Abel  v.  Hutto,  8  Rich.  42;  [Stokes  v.  Berry,  2  Salk.  421; 
Midland  Co.  v.  Wright  [1901],  1  Ch.  735  (injunction  against  disseisee); 
Hackett  v.  Marmet  Co.,  52  Fed.  269;  So.  Dist.  v.  Blakeslee,  13  Conn. 
227;  Montgomery  v.  Robinson,  4  Del.  Ch.  490  (injunction  against  dis- 
seisee) ;  Paulin  v.  Hale,  40  111.  274;  McDuffie  v.  Sinnott,  119  111.  449; 
Faloon  v.  Simshauser,  130  111.  649;  Donahue  v.  111.  Co.  165  111.  640; 
Bradley  v.  Lightcap,  202  111.  154;  Axmear  v.  Richards,  112  Iowa  657 
(injunction  against  disseisee);  Roberts  v.  Sanders,  3  A.  K.  Marsh.  25; 
Doe  v.  Fletcher,  37  Md.  480;  Waltemeyer  v.  Baughman,  63  Md.  200; 
Shock  v.  Falls  City,  31  Neb.  599  (injunction  against  disseisee)  ;  City  v. 
White  (Neb.  1897);  70  N.  W.  R.  50;  Rice  v.  Kelly  (Neb.  1908)  115 
N.  W.  R.  625;  Davock  v.  Nealon,  58  N.  J.  21;  Spottiswoode  v.  Morris 
Co.,  61  N.  J.  322,  63  N.  J.  667;  Jackson  v.  Dieifendorf,  3  Johns.  269; 
Barnes  v.  Light,  116  N.  Y.  34;  Eldridge  v.  Kenning,  35  N.  Y.  St.  Rep. 
190  (injunction  against  disseisee)  ;  Schall  v.  Williams  Co.,  35  Pa.  191, 
204;  MacGregor  v.  Thompson,  7  Tex.  Civ.  Ap.  32]. 


67.     AMES:  DISSEISIN  OF  CHATTELS       571 

ary  title  of  the  original  owner.  *  [If  sued  by  the  disseisee  he 
may  plead  in  denial  of  the  plaintiff's  title.2]  The  English 
cases  cited  in  support  of  these  propositions,  it  may  be  urged, 
were  decided  under  St.  3  and  4  Wm.  IV.  c.  27,  the  34th  sec- 
tion of  which  expressly  extinguishes  the  title  of  the  original 
owner  at  the  end  of  the  time  limited.  But  inasmuch  as  the 
American  cases  cited  were  decided  under  statutes  substan- 
tially like  St.  21  James  I.  c.  16,  which  contains  no  allusion  to 
any  extinguishment  of  title,  the  34th  section  referred  to 
may  fairly  be  regarded  as  pure  surplusage. 

The  conclusions  reached  in  regard  to  land  apply  with 
equal  force  to  chattels.  The  vice  in  the  converter's  title  is 
the  dispossessed  owner's  right  to  recover  the  chattel  by  re- 
caption or  action.  The  bar  of  the  statute  operating  as 
a  perpetual  injunction  against  the  enforcement  of  the  right 
of  action  virtually  destroys  that  right ;  and  the  policy  of 
the  law  will  not  permit  the  dispossessed  owner's  right  to  re- 
cover by  his  own  act  to  survive  the  extinguishment  of  his 
right  to  recover  by  legal  process.3  The  vice  being  thus  re- 

*Low  v.  Morrison,  14  Grant,  Ch.  192;  Pendleton  v.  Alexander,  8 
Cranch,  462;  Afrington  v.  Liscom,  34  Cal.  365;  Tracy  v.  Newton,  57 
Iowa,  210;  Rayner  v.  Lee,  20  Mich.  384;  Stettnische  v.  Lamb,  18  Neb. 
619;  Watson  v.  Jeffrey,  39  N.  J.  Eq.  62;  Parker  v.  Metzger,  12  Oreg. 
407;  [Sharon  v.  Tucker,  144  U.  S.  392;  Marston  v.  Rowe,  39  Ala.  722; 
Van  Etten  v.  Daugherty,  83  Ark.  534;  Echols  v.  Hubbard,  90  Ala.  309; 
Norman  v.  Eureka  Co.,  98  Ala.  181;  Torrent  Co.  v.  Mobile,  101  Ala. 
559;  McCormack  v.  Silsby,  82  Cal.  72;  Baker  v.  Clark,  128  Cal.  181; 
Roberson  v.  Downing  Co.,  120  Ga.  833;  Bellefontaine  Co.  v.  Niedring- 
haus,  181  111.  426;  Wilson  v.  Campbell,  119  Ind.  286;  Indep.  Dist.  v. 
Fagen,  94  Iowa,  676;  Severson  v.  Gremm,  124  Iowa,  729;  Jenkins  v. 
Dewey,  49  Kan.  49 ;  Farmer  v.  Farmer,  19  Ky.  L.  Rep.  243 ;  Asher  Co. 
v.  Clemmons,  23  Ky.  L.  Rep.  771 ;  Gardner  v.  Terry,  99  Mo.  523 ;  McKee 
v.  Gardner,  131  Mo.  599  (semble) ;  Peterson  v.  Townsend  (Neb.  1890) 
46  N.  W.  R.  526;  Nash  v.  Lead  Co.,  15  N.  Dak.  566;  Moody  v.  Holcomb, 
26  Tex.  714;  Bellingham  v.  Dibble,  4  Wash.  764;  Pitman  v.  Hill,  117 
Wis.  318;  Clithero  v.  Fenner,  122  Wis.  356}. 

2  Nelson  v.  Brodhack,  44  Mo.  596;  Fulkerson  v.  Mitchell,  82  Mo.  13; 
Hill  v.  Bailey,  8  Mo.  Ap.  85;  Staley  v.  Housel,  35  Neb.  160;  Murray  v. 
Romine,  60  Neb.  94;  Link  v.  Campbell,  (Neb.  1905)  104  N.  W.  R.  939; 
Furman  v.  Sprague,  82  N.  Ca.  366;  Cheetham  v.  Young,  113  N.  Ca. 
161.  But  see  Ten  Eyck  v.  Witbeck,  55  N.  Y.  Ap.  Div.  165;  Udell  v. 
Stearns,  125  N.  Y.  Ap.  Div.  196. 

zEx  parte  Drake,  5  Ch.  Div.  866,  868;  Chapin  v.  Freeland,  142  Mass. 
383;  cases  cited  infra,  n.  4.  ["In  order  to  make  the  title  perfect,  there 
must  have  been  something  in  the  nature  of  an  adverse  possession  for 
more  than  six  years;  then,  indeed,  the  party  would  have  a  right  to  the 
chattel,"  per  Pollock  C.  B.  in  Plant  v.  Cockerill,  5  H.  &  N.,  430,  439- 
440.  See  also  Davis  v.  Mills,  194  U.  S.  451,  457,  per  Holmes,  J.] 


572  VIII.     PROPERTY   (IN  GENERAL) 

moved,  the  converter's  title  is  unimpeachable;  and  it  is  as 
true  of  chattels  as  of  land  that  a  prescriptive  title  is  as  ef- 
fective for  all  purposes  as  a  title  by  grant.  Accordingly, 
the  adverse  possessor  cannot  restore  the  title  to  the  original 
owner  by  waiving  the  benefit  of  the  statute. 1  His  title  is 
not  affected  by  a  repeal  of  the  statute.2  If  dispossessed  by 
the  original  owner,  he  may  maintain  Detinue  or  Replevin 
against  the  latter,  as  he  might  against  any  stranger.3  [He 
may  have  an  injunction  restraining  the  removal  of  the  chat- 
tel by  the  original  owner.4]  A  title  gained  by  lapse  of  time 
in  one  State  is  good  everywhere.5  If  insolvent,  he  cannot 
surrender  the  chattel  to  the  original  owner.  6  If  sued  by  the 

According  to  Littleton,  a  Tight  of  entry  or  recaption  is  not  extin- 
guished by  a  release  of  all  actions;  and  in  Put  v.  Rawsterne,  Skin.  48, 
57,  2  Mod.  318,  there  is  a  dictum  that  the  right  of  recaption  is  not  lost, 
although  all  rights  of  action  are  merged  in  a  judgment  in  trover.  It 
may  be  that  Littleton's  interpretation  would  be  followed  to-day,  al- 
though it  certainly  savors  of  scholasticism.  But  the  dictum  in  Put  v. 
Rawsterne,  surely,  cannot  be  law. 

1  Morris  v.  Lyon,  84  Va.  331. 

2  Campbell  v.  Holt,  115  U.  S.  623  (semble)  ;  Jones  v.  Jones,  18  Ala. 
245,  253  (semble) ;  Davis  v.  Minor,  2  Miss.  183,  189-90  (semble) ;  Power 
v.  Telford,  60  Miss.  195   (semble) ;  Moore  v.  State,  43  N.  J.  203,  206 
(semble);  Yancy  v.  Yancy,  5   Heisk.  353;   Brown  v.  Parker,  28  Wis. 
21,  28  (semble). 

3  Brent  v.  Chapman,  5  Cranch,  358;  Shelby  v.  Guy,  11  Wheat.  361 
(semble);  Howell  v.  Hair,  15  Ala.  194;  Sadler  v.  Sadler,  16  Ark.  628; 
Wynn  v.  Lee,  5  Ga.  217    (semble)  ;   Robbins  v.  Sackett,  23  Kas.  301; 
Stanley   v.   Earl,   5   Litt.    281;    Smart   v.    Baugh,   3  J.   J.   Marsh.   363 
(semble);  Clarke  v.  Slaughter,  34  Miss.   65;  Chapin  v.   Freeland,   142 
Mass.  383  (Field,  J.,  diss.)  ;  Baker  v.  Chase,  55  N.  H.  61,  63  (semble) ; 
Powell  v.  Powell,  1   Dev.  &  B.  Eq.  379;   Call  v.  Ellis,   10  Ired.   250; 
Cockfield  v.  Hudson,  1  Brev.  311;  Gregg  v.  Bigham,  1  Hill   (S.  Ca.), 
299;  Simon  v.  Fox,  12  Rich.  392;  McGowan  v.  Reid,  27  S.  Ca.  262,  267 
(semble);  Kegler  v.  Miles,  Mart.  &  Y.  426;  Partee  v.  Badget,  4  Yerg. 
174;  Wheaton  v.  Weld,  9  Humph.  773;  Winburn  v.  Cochran,  9  Tex.  123; 
Connor  v.  Hawkins,  71  Tex.  582;  Preston  v.  Briggs,  16  Vt.  124,  130; 
Newby  v.  Blakey,  3  Hen.  &  M.  57;  [Hicks  v.  Fluitt,  21  Ark.  463;  Currier 
v.  Studley,  159  Mass.  17;  Pate  v.  Hazell,  107  N.  Ca.  189  (semble)  ;  In- 
gram v.  Foster,  4  McC.  198;  Waters  v.  Barton,  1  Cold.  450;  Bowyer  v. 
Robertson,  (Tex.  Civ.  Ap.  1895)  29  S.  W.  R.  916]. 

4Altoona  Co.  v.  R.  R.  Co.  (Pa.  1902)  52  Atl.  R.  6. 

6  Shelby  v.  Guy,  11  Wheat.  361;  Goodman  v.  Munks,  8  Port.  84,  94-5; 
Howell  v.  Hair,  15  Ala.  194  (semble)  ;  Newcombe  v.  Leavitt,  22  Ala. 
631;  Wynn  v.  Lee,  5  Ga.  217;  Broh  v.  Jenkins,  9  Mart.  526  (semble); 
Davis  v.  Minor,  2  Miss.  183  (semble) ;  Fears  v.  Sykes,  35  Miss.  633; 
Moore  v.  State,  43  N.  J.  203,  205,  208  (semble) ;  Alexander  v.  Burnet, 
5  Rich.  189  (semble)  ;  Sprecker  v.  Wakeley,  11  Wis.  432,  440  (semble) ; 
[Cargile  v.  Harrison,  9  B.  Mon.  518,  521  (semble) ;  Waters  v.  Barton, 
1  Cold.  450]. 

6  Garth  v.  Barksdale,  5  Munf.  101. 


67.     AMES:  DISSEISIN  OF  CHATTELS       573 

original  owner,  he  may  plead  in  denial  of  the  plaintiff's 
title.1 

In  the  cases  thus  far  considered  the  land  or  chattel  has 
been  assumed  to  continue  in  the  possession  of  the  disseisor 
or  converter  until  the  bar  of  the  statute  was  complete.  But 
before  that  time  the  wrong-doer  may  have  parted  with  the 
res  by  a  sale  or  other  transfer,  or  he  may  have  been,  in  turn, 
deprived  of  it  by  a  second  wrong-doer. 

If  the  thing  has  passed  to  the  new  possessor  by  a  sale, 
the  change  of  possession  will  produce,  so  far  as  the  statute 
of  limitations  is  concerned,  only  this  difference :  the  title  will 
vest  at  the  end  of  the  period  of  limitation  in  the  new  pos- 
sessor, instead  of  the  original  disseisor  or  converter.  Let  us 
suppose,  for  example,  that  B.  disseises  A.,  occupies  for  ten 
years,  and  then  conveys  to  C.  If  the  statutory  period  be 
assumed  to  be  twenty  years,  B.'s  title  at  the  time  of  the  trans- 
fer is  good  against  every  one  except  A.,  but  is  limited  by  the 
latter's  right  to  recover  possession  at  any  time  during  the 
ensuing  ten  years.  B.'s  title,  thus  qualified,  passes  to  C.  At 
the  end  of  the  second  ten  years  the  qualification  vanishes, 
and  C.  is  complete  owner.  This,  it  is  believed,  is  the  ration- 
ale of  the  oft-repeated  rule  that  the  times  of  successive  ad- 
verse holders,  standing  iri  privity  with  each  other,  may  be 
tacked  together  to  make  up  the  period  of  limitation.  In 
regard  to  land,  this  rule  of  tacking  is  all  but  universal.2 

Campbell  v.  Holt,  115  U.  S.  623  (semble)  ;  Smart  v.  Baugh,  3  J.  J. 
Marsh.  363;  Smart  v.  Johnson,  3  J.  J.  Marsh.  373;  Duckett  v.  Crider, 
11  B.  Mon.  188;  Elam  v.  Bass,  4  Munf.  301;  [Lay  v.  Lawson,  23  Ala. 
377;  Traun  v.  Keiffer,  31  Ala.  136]. 

The  general  rule  is  asserted  also  in  Bryan  v.  Weems,  29  Ala.  423; 
Pryor  v.  Ryburn,  16  Ark.  671;  Crabtree  v.  McDaniel,  17  Ark.  222; 
Machin  v.  Thompson,  17  Ark.  199;  Blackburn  v.  Morton,  18  Ark.  384; 
Morine  v.  Wilson,  19  Ark.  520;  Ewell  v.  Tidwell,  20  Ark.  136;  Spencer 
v.  McDonald,  22  Ark.  466;  Curtis  v.  Daniel,  23  Ark.  362;  Paschal  v. 
Davis,  3  Ga.  256,  265;  Wellborn  v.  Weaver,  17  Ga.  267;  Thompson  v. 
Caldwell,  3  Litt.  136;  Orr  v.  Pickett,  3  J.  J.  Marsh.  269,  278;  Martin 
v.  Dunn,  30  Miss.  264,  268;  Hardeson  v.  Hays,  4  Yerg.  507;  Prince  v. 
Broach,  5  Sneed,  318;  Kirkman  v.  Philips,  7  Heisk.  222;  Munson  v. 
Hallowell,  26  Tex.  475 ;  Merrill  v.  Bullard,  59  Vt.  389 ;  Garland  v.  Enos, 
4  Munf.  504;  [Harrison  v.  Pool,  16  Ala.  167,  174;  McCombs  v.  Guild, 
9  Lea,  81;  Thornburg  v.  Lewis,  37  W.  Va.  538]. 

Goodwin  v.  Morris,  9  Oreg.  322,  is  a  solitary  decision  to  the  contrary. 
[There  are  strong  dicta  to  the  contrary  in  Miller  v.  Dell,  [1891]  1  Q.  B. 
468.] 

2  Ancestor  and  heir.    Doe  v.  Lawley,  13  Q.  B.  954;  Clarke  v.  Clarke, 


574  VIII.     PROPERTY   (IN  GENERAL) 

The  decisions  in  the  case  of  chattels  are  few.  As  a  matter 
of  principle,  it  is  submitted  this  rule  of  tacking  is  as  appli- 
cable to  chattels  as  to  land.1  A  denial  of  the  right  to  tack 
would,  furthermore,  lead  to  this  result.  If  a  converter  were 
to  sell  the  chattel,  five  years  after  its  conversion,  to  one  ig- 
norant of  the  seller's  tort,  the  dispossessed  owner's  right  to 

Ir.  R.  2  C.  L.  395;  Currier  v.  Gale,  9  All.  522;  Duren  v.  Kee,  26  S.  Ca. 
224;  [Doe  v.  Fletcher,  37  Md.  430;  Wickes  v.  Wickes,  98  Md.  307;  Alex- 
ander v.  Gibbon,  118  N.  Ca.  796;  Epperson  v.  Stansill,  64  S.  Ca.  485; 
Bardin  v.  Commercial  Co.,  (S.  Ca.  1909)  64  S.  E.  R.  165;  Corder  v. 
Dolin,  4  Baxt.  238]. 

Devisor  and  devisee.  Newcomb  v.  Stebbins,  9  Met.  545;  Shaw  v. 
Nicholay,  30  Mo.  99;  Caston  v.  Caston,  2  Rich.  Eq.  1;  [Lantry  v.  Wolff, 
49  Neb.  374.  But  see  contra  Burnett  v.  Crawford,  50  S.  Ca.  161]. 

Vendor  and  vendee.  Simmons  v.  Shipman,  15  Ont.  R.  301;  Christy 
v.  Alford,  17  How.  601;  Riggs  v.  Fuller,  54  Ala.  141;  Smith  v.  Chapin, 

31  Conn.  530;  Weber  v.  Anderson,  73  111.  439;   Durel  v.   Tennison,  31 
La.  An.  538;  Chadbourne  v.  Swan,  40  Me.  260;  Hanson  v.  Johnson,  62 
Md.  25;  Crispen  v.  Hannavan,  50  Mo.  536;  McNeely  v.  Langan,  22  Oh. 
St.  32;  Overfield  v.  Christie,  7  S.  &  R.  173;  Clark  v.  Chase,  5  Sneed, 
636;  Cook  v.  Dennis,  61  Tex.  246;  Day  v.  Wilder,  47  Vt.  583.     But  see 
contra,  King  v.  Smith,  Rice,  10;  Johnson  v.  Cobb,  29  S.  Ca.  372;  [Shuf- 
fleton  v.  Nelson,  2  Sawy.  540;  Holt  v.  Adams,  121  Ala.  664;  Memphis 
Co.  v.  Organ,  67  Ark.  84;  Robinson  v.  Nordman,  75  Ark.  593;  Mont- 
gomery v.   Robinson,  4  Del.  Ch.  490;   Hanson  v.  Johnson,  62  Md.  25; 
Vandall  v.  St.  Martin,  42  Minn.  163;  Menkens  v.   Blumenthal,  27  Mo. 
198;  Murray  v.  Romine  Co.,  60  Neb.  94;  Oldig  v.  Fisk   (Neb.  1901)  95 
N.  W.  R.  492;  Rice  v.  Kelly   (Neb.  1908)    115  N.  W.  625;  Davock  v. 
Nealon,  58  N.  J.  21;  Vance  v.  Wood,  22  Oreg.  77;  Wheeler  v.  Taylor, 

32  Oreg.  421;  West  v.  Edwards,  41  Oreg.  609;  Cunningham  v.  Patton, 
6  Barr,  355;  Hughes  v.  Pickering,  14  Pa.  297;  Covert  v.  Pittsburg  Co., 
204  Pa.  341;  Johnson  v.  Simpson,  22  Tex.  Civ.  Ap.  290;  111.  Co.  v.  Bud- 
sisz,  106  Wis.  499;  111.  Co.  v.  Jeka,  119  Wis.  122;  Closuit  v.  John  Arpin 
Co.,  130  Wiss.  258;  Mielke  v.  Dodge   (Wis.  1908)   115  N.  W.  R.  1099; 
111.  Co.  v.  Paczocha  (Wis.  1909)  119  N.  W.  R.  550]. 

Lessor  and  lessee.  Melvin  v.  Proprietors,  5  Met.  15;  Sherin  v. 
Brackett,  36  Minn.  152. 

Judgment  debtor  and  execution  purchaser.  Searcy  v.  Reardon,  1  A. 
K.  Marsh.  3;  Chouquette  v.  Barada,  23  Mo.  331;  Scheetz  v.  Fitzwater, 
5  Barr,  126. 

Wife  and  tenant  by  curtesy.       Colgan  v.  Pellens,  48  N.  J.  27, 49  N.  J.  694. 

See  further,  McEntie  v.  Brown,  28  Ind.  347;  Haynes  v.  Boardman, 
119  Mass.  414;  St.  Louis  v.  Gorman,  29  Mo.  593;  Hickman  v.  Link,  97 
Mo.  482. 

aBohannon  v.  Chapman,  17  Ala.  696;  Newcombe  v.  Leavitt,  22  Ala. 
631;  Shute  v.  Wade,  5  Yerg.  1,  12  (semble) ;  Norment  v.  Smith,  1 
Humph.  46,  48  (semble) ;  [Hicks  v.  Fluitt,  21  Ark.  463;  Dragoo  v. 
Cooper,  9  Bush,  629;  Thornburg  v.  Bowen,  37  W.  Va.  538]  (but  see 
Wells  v.  Ragland,  1  Swan,  501;  Hobbs  v.  Ballard,  5  Sneed,  395),  (Ac- 
cord. 

Tacking  not  being  allowed  in  regard  to  land  in  South  Carolina,  is 
naturally  not  permitted  there  in  the  case  of  chattels.  Beadle  v.  Hunter, 
3  Strob.  331;  Alexander  v.  Burnet,  5  Rich.  189;  Dillard  v.  Philson,  5 
Strob.  213  (semble). 


67.     AMES:  DISSEISIN  OF  CHATTELS       575 

recover  the  chattel  from  the  purchaser  would  continue  five 
years  longer  than  his  right  to  recover  from  the  converter 
would  have  lasted,  if  there  had  been  no  sale.  In  other  words, 
an  innocent  purchaser  from  a  wrong-doer  would  be  in  a 
worse  position  than  the  wrong-doer  himself,  —  a  conclusion 
as  shocking  in  point  of  justice  as  it  would  be  anomalous  in 
law. 

It  remains  to  consider  the  operation  of  the  statute  when 
the  disseisor  or  converter  has  been,  in  turn,  dispossessed  by 
a  wrong-doer.  A  change  of  possession  accomplished  in  this 
mode  has  no  more  effect  upon  the  right  of  the  original  owner 
than  a  change  of  possession  by  means  of  a  transfer.  But 
the  rights  and  relations  of  the  two  successive  adverse  pos- 
sessors are  fundamentally  different  in  the  two  cases.  Let 
us  suppose,  as  before,  that  B.  disseises  A.,  and  occupies  for 
ten  years,  and  then,  instead  of  selling  to  C.,  is  disseised  by 
C.,  who  occupies  for  another  ten  years.  At  the  moment  of 
the  second  disseisin  B.'s  possession  is  qualified  by  A.'s  right 
to  recover  the  res  at  any  time  during  the  next  ten  years. 
After  the  disseisin  C.'s  possession  would,  of  course,  be  sub- 
ject to  the  same  qualification.  But  B.  had  as  against  the 
rest  of  the  world  the  two  elements  of  perfect  ownership,  — 
possession  and  the  unlimited  right  of  possession.  C.  by 
disseising  B.  severs  these  two  elements  of  B.'s  title,  good 
against  every  one  but  A.,  in  the  same  way  that  B.  by  his 
tort  had  previously  divided  A.'s  ownership,  good  against 
every  one  without  exception.  Just  as  by  the  original  dissei- 
sin B.  acquired  the  res  subject  to  A.'s  right  of  entry  or  ac- 
tion for  twenty  years,  so  by  the  second  disseisin  C.  acquires 
the  res  subject  to  B.'s  right  of  entry  or  action  for  an  equal 
period.  There  would  be,  therefore,  two  defects  in  C.'s  title; 
namely,  A.'s  right  to  recover  the  res  for  ten  years,  and  B.'s 
right  to  recover  it  for  twenty  years  from  the  time  of  the 
second  disseisin.  If  A.  fails  to  assert  his  claim  during  his 
ten  years,  his  right  is  gone  forever.  One  of  the  defects  of 
C.'s  title  is  blotted  out.  He  becomes  owner  against  every 
one  but  B.  He  may,  accordingly,  at  any  time  thereafter 
defend  successfully  an  action  brought  by  A.,  or  if  forcibly 
dispossessed  by  A.,  he  may  recover  the  res  from  him  by  entry 


576  VIII.     PROPERTY   (IN  GENERAL) 

or  action  as  he  might  against  any  other  dispossessor,  B. 
alone  excepted.  In  other  words,  C.,  although  a  disseisor, 
and  therefore  not  in  privity  with  B.,  may  tack  the  time  of 
B.'s  adverse  possession  to  his  own  to  make  out  the  statutory 
period  against  A.  This  tacking  is  allowed  in  England, 
Canada,  and  in  several  of  our  States.1  There  are,  how- 
ever, some  decisions  and  a  widespread  opinion  to  the  con- 
trary in  this  country.2  But  this  opinion,  with  all  deference, 

1Doe  v.  Carter,  9  Q.  B.  863;  [Willis  v.  Howe,  [1893],  2  Ch.  545,  553;] 
Kipp  v.  Synod,  33  Up.  Can.  Q.  B.  220;  Fanning  v.  Willcox,  3  Day,  258; 
Smith  v.  Chapin,  31  Conn.  530  (semble)  ;  Shannon  v.  Kinny,  1  A.  K. 
Marsh.  3;  Hord  v.  Walton,  2  A.  K.  Marsh.  620;  [Wishart  v.  McKnight, 
178  Mass.  356  (explaining  the  misunderstood  case  of  Sawyer  v.  Kendall, 
cited  in  the  next  note)]  ;  Fitzrandolph  v.  Norman,  2  Tayl.  131;  Candler 
v.  Lunsford,  4  Dev.  &  B.  407;  Davis  v.  McArthur,  78  N.  C.  357;  Cowles 
v.  Hall,  90  N.  C.  330.  See,  also,  1  Dart,  V.  &  P.  (6  ed.)  464-6;  Pollock 
and  Wright,  Possession,  23. 

2  San  Francisco  v.  Fulde,  37  Cal.  349;  Doe  v.  Brown,  4  Ind.  143 
(semble)-,  Sawyer  v.  Kendall,  10  Cush.  241;  Witt  v.  St.  Paul  Co.,  38 
Minn.  122  (semble);  Locke  v.  Whitney,  63  N.  H.  597  (semble)',  Jack- 
son v.  Leonard,  9  Cow.  653;  Moore  v.  Collishaw,  10  Barr,  224;  Shrack 
v.  Zubler,  34  Pa.  38;  Erck  v.  Church,  87  Tenn.  575;  Graeven  v.  Dieves, 
68  Wis.  317  (semble).  See,  also,  Riopelle  v.  Hilman,  23  Mich.  33. 

Doe  v.  Barnard,  13  Q.  B.  945,  lends  no  countenance  to  the  cases  just 
cited.  In  that  case  B.  occupied  without  right  for  eighteen  years,  and 
died  leaving  a  son;  C.  excluded  the  son  and  occupied  for  thirteen  years, 
when  he  was  ousted  by  A.,  the  original  owner.  C.  brought  ejectment 
against  A.,  but  failed;  not,  however,  because  of  any  right  in  A.;  on 
the  contrary,  the  latter,  as  plaintiff,  in  an  ejectment  against  C.,  had 
been  already  defeated  because  the  statute  had  extinguished  his  title. 
Doe  v.  Carter,  9  Q.  B.  863.  The  court  decided  against  C.  in  Doe  v. 
Barnard,  on  the  ground  that  he,  being  a  disseisor  of  A.'s  heir,  who  had 
the  superior  right,  could  not  maintain  ejectment  at  all,  even  against  a 
wrongful  dispossessor.  This  view,  although  followed  in  Nagle  v.  Shea, 
Ir.  R.  8  C.  L.  224,  is,  of  course,  untenable,  being  a  departure  from  the 
law  as  settled  by  the  practice  of  six  centuries.  For,  from  time  im- 
memorial, a  disseisor,  if  dispossessed  by  a  stranger,  has  had  the  right 
to  recover  the  land  from  the  wrong-doer  by  entry,  by  assize,  or  by 
ejectment.  Bract,  f.  165  a;  1  Nich.  Britt.  296;  Bateman  v.  Allen,  Cro. 
El.  437,  438;  Jenk.  Cent.  42;  Allen  v.  Rivington,  2  Saund.  Ill;  Smith 
v.  Oxenden,  1  Ch.  Ca.  25 ;  Doe  v.  Dyball,  M.  &  M.  346 ;  Davison  v.  Gent, 
1  H.  &  N.  744,  per  Bramwell,  B.  [Chisholm  v.  Marshalleck,  1  Jamaica, 
L.  R.  13;  Ani  Waata  v.  Grice,  2  N.  Zeal.  L.  R.  105,  117.]  This  time- 
honored  rule  is  universally  prevalent  in  this  country.  The  doctrine  of 
Doe  v.  Barnard  is  open  to  the  further  criticism  that  it  is  a  distinct 
encouragement  of  private  war  as  a  substitute  for  legal  proceedings. 
For  C.,  the  unsuccessful  plaintiff,  has  only  to  eject  A.  by  force  in  order 
to  turn  the  tables  upon  him.  Once  in  possession,  he  could  defeat  a  new 
ejectment  brought  by  A.,  in  the  same  way  that  he  himself  had  been 
rebuffed;  that  is,  by  setting  up  the  superior  right  of  B.'s  heir.  For- 
tunately Doe  v.  Barnard  has  been  overruled,  in  effect,  by  Asher  v. 
Whitlock,  L.  R.  1  Q.  B.  1.  The  suggestion  of  Mellor,  J.,  in  the  latter 
case,  although  adopted  by  Mr.  Pollock  (Poll.  &  Wr.,  Poss.  97,  99),  that 
the  former  case  may  be  supported  on  the  ground  that  the  superior  right 


67.     AMES:  DISSEISIN  OF  CHATTELS       577 

must  be  deemed  erroneous.  The  laches  of  the  original  owner, 
who  remains  continuously  dispossessed  throughout  the  statu- 
tory period,  is  the  same,  and  should  be  attended  with  the 
same  consequences  to  him,  whether  the  adverse  possession 
be  held  continuously  by  one  or  several  persons,  and  whether 
subsequent  possessors  do  or  do  not  stand  in  privity  with 
their  predecessors.  If,  indeed,  the  adverse  possession  is  not 
continuous,  if,  for  instance,  B.,  after  disseising  A.,  abandons 
the  land,  leaving  the  possession  vacant,  and  C.  subsequently 
enters  without  right  upon  this  vacant  possession,  he  cannot, 
of  course,  tack  his  time  to  B.'s.1  Upon  B.'s  abandonment 
of  the  land  the  disseisin  comes  to  an  end.  In  legal  contem- 
plation, A.'s  possession  revives.2  Having  the  right  to  pos- 
sess, and  no  one  else  having  actual  possession,  he  is  in  a 
position  analogous  to  that  of  an  heir,  or  conusee  of  a  fine 
before  entry,  and  like  them  has  a  seisin  in  law.  C.'s  dis- 
seisin has,  therefore,  the  same  effect  as  if  A.  had  never  been 
disseised  by  B.,  and  A.'s  right  of  entry  or  action  must  con- 
tinue until  C.  himself,  or  C.  and  his  successors,  have  held 
adversely  for  twenty  years.  If  the  distinction  here  sug- 
gested between  successive  disseisins  with  continuous  adverse 
possession,  and  successive  disseisins  without  continuous  ad- 
verse possession,  had  been  kept  in  mind,  a  different  result, 
it  is  believed,  would  have  been  reached  in  the  American  cases.3 
If  the  conclusions  here  advocated  are  true  in  regard  to 
land,  they  would  seem  to  be  equally  valid  where  there  is  a 
continuous  adverse  possession  of  chattels  by  successive  hold- 

of  B.'s  heir  was  disclosed  by  the  plaintiff's  evidence,  will  hardly  com- 
mand approval.  If  an  outstanding  superior  right  of  a  third  person  is 
a  relevant  fact,  it  must  be  competent  for  the  defendant  to  prove  it; 
if  it  is  irrelevant,  its  disclosure  by  the  plaintiff's  evidence  must  be  harm- 
less. [Doe  v.  Barnard  may  be  regarded  as  thoroughly  discredited  by 
Perry  v.  Clissold,  [1907]  A.  C.  73,  79-80.] 

1  Brandt  v.  Ogden,  1  Johns.  156;  Malloy  v.  Bruden,  86  N.  C.  251; 
Taylor  v.  Burnside,  1  Grat.  165.    See,  also,  Brown  v.  Hanauer,  48  Ark. 
277. 

2  Agency   Co.   v.   Short,    13   App.    Cas.    793;    [Soiling  v.    Broughton, 
[1893]  A.  C.  556,  561;  Louisville  Co.  v.  Philyan,  88  Ala.  264,  268;  Down- 
ing v.  Magee,  153  111.  330,  335;  Wishart  v.  McKnight,  178  Mass.  356, 
360;  Cunningham  v.  Patton,  6  Barr,  355,  358,  359;  Jarrett  v.  Stevens, 
36  W.  Va.  445,  450]. 

8  It  is  a  significant  fact  that  in  most  of  these  cases  Brandt  v.  Ogden, 
1  Johns.  156,  a  case  where  the  adverse  possession  was  not  continuous, 
was  cited  as  a  decision  in  point. 


578  VIII.     PROPERTY   (IN  GENERAL) 

ers,   although   there  is   no  privity   between   them.      But  no 
decisions  have  been  discovered  upon  this  point.1 

(5.)  By  judgment.  One  who  has  been  wrongfully  dis- 
possessed of  a  chattel  has  the  option  of  suing  the  wrong-doer 
in  Replevin,  Detinue,  Trover,  or  Trespass.  A  judgment  in 
Replevin  enables  him  to  keep  the  chattels  already  replevied 
and  delivered  to  him  by  the  sheriff,  and  a  judgment  in  De- 
tinue establishes  his  right  to  recover  the  chattel  in  specie,2 
or,  that  being  impracticable,  its  value.  A  judgment  in 
Trespass  or  Trover,  on  the  other  hand,  is  for  the  recovery 
of  the  value  only,  as  damages.  Inasmuch  as  a  defendant 
ought  not  to  be  twice  vexed  for  a  single  wrong,  a  judgment 
in  any  one  of  these  forms  of  action  is  not  only  a  merger 
of  the  right  to  resort  to  that  one,  but  is  also  a  bar  against 
the  others. 3  Accordingly,  a  judgment  in  Trespass  or 
Trover  against  a  sole  wrong-doer  who,  at  the  time  of  judg- 
ment recovered,  is  still  in  possession  of  the  chattel  operates 
like  the  statute  of  limitations,  and  annihilates  the  dispos- 
sessed owner's  right  to  recover  the  chattel.  The  converter's 
possession  being  thus  set  free  from  adverse  claims,  changes 
into  ownership.4 

1  In  Norment  v.  Smith,  1  Humph.  46;  Moffatt  v.  Buchanan,  11 
Humph.  369 ;  Wells  v.  Ragland,  1  Swan.  501 ;  Hobbs  v.  Ballard,  5  Sneed, 
395,  there  was  in  fact  a  privity;  but  the  court  thought  otherwise,  and 
accordingly  disallowed  tacking,  as  the  same  court  denies  the  right  to 
tack  in  the  case  of  land  if  there  is  no  privity. 

*Ex  parte  Drake,  5  Ch.  Div.  866;  Re  Scarth,  10  Ch.  234;  Eberle  Co. 
v.  Jones,  18  Q.  B.  Div.  459;  Sharpe  v.  Gray,  5  B.  Mon.  4;  Norrill  v. 
Corley,  2  Rich.  Eq.  288,  n.  (a). 

8  Lacon  v.  Barnard,  Cro.  Car.  35 ;  Put  v.  Rawsterne,  T.  Ray.  472, 
2  Show.  211  (semble);  Hitchin  v.  Campbell,  2  W.  Bl.  827;  Lovejoy  v. 
Wallace,  3  Wall.  1,  16  (semble)  ;  Barb  v.  Fish,  8  Black,  481 ;  Rembert 
v.  Hally,  10  Humph.  513.  Serjeant  Manning's  Note,  6  M.  &  G.  160, 
n.  a;  Daniel  v.  Holland,  4  J.  J.  Marsh,  18,  26;  Woolley  v.  Carter,  2 
Halst.  85;  Outcalt  v.  Durling,  1  Dutch.  443;  Dietz  v.  Field,  (N.  Y.  Ap. 
Div.  1896)  41  N.  Y.  S.  1087  (but  see  Union  Co.  v.  Schiff,  78  Fed.  216, 
86  Fed.  1023).  Similarly,  if  the  converted  chattel  has  been  sold,  the 
owner,  by  recovering  a  judgment  in  assumpsit,  extinguishes  all  his  other 
remedies  against  the  converter.  Smith  v.  Baker,  L.  R.  8  C.  P.  350 
(semble);  Bradley  v.  Brigham,  149  Mass.  141,  144-5;  Boots  v.  Fergu- 
son, 46  Hun,  129 ;  Wright  v.  Ritterman,  4  Rob.  704. 

4  The  chattel  may  therefore  be  taken  on  execution  by  a  creditor  of 
the  converter.  Rogers  v.  Moore,  Rice,  60;  Norrill  v.  Corley,  2  RicTi. 
Eq.  288,  n.  (a)  ;  Foreman  v.  Neilson,  2  Rich.  Eq.  287.  See,  also,  Morris 
v.  Beckley,  2  Mill,  C.  R.  227.  [But  compare  Bush  v.  Bush,  1  Strob.  Eq. 
377.]  A  purchaser  from  a  converter  after  judgment  should  take  a  per- 
fect title.  Goff  v.  Craven,  34  Hun,  150,  contra,  would  seem  to  be  a 


67.     AMES:  DISSEISIN  OF  CHATTELS       579 

If  the  change  of  possession  is  before  judgment,  there  is 
a  difference.  Let  us  suppose,  for  instance,  that  B.  converts 
the  chattel  of  A.,  and,  before  judgment  recovered  against 
him  in  Trespass  or  Trover,  sells  it  to  C.,  or  is  in  turn  dis- 
possessed by  C.  C.,  the  new  possessor,  will  hold  the  chattel, 
as  B.  held  it,  subject  to  A.'s  right  to  recover  it.  The,  change 
of  possession  simply  enlarges  the  scope  of  A.'s  remedies ; 
for  his  new  rights  against  C.  do  not  destroy  his  old  right 
to  sue  B.  in  Trespass  or  Trover.  Nor  will  an  unsatisfied 
judgment  against  B.  in  either  of  these  actions  affect  his 
right  to  recover  the  chattel  from  C.1  [Or  the  proceeds  of  its 
sale  in  an  action  of  assumpsit.2]  It  is  no  longer  a  question 
of  double  vexation  to  one  defendant  for  a  single  wrong.  Not 
until  the  judgment  against  B.  is  satisfied  can  C.  use  it  as 
a  bar  to  an  action  against  himself.  A  different  principle 
then  comes  into  play,  namely,  that  no  one  should  receive 
double  compensation  for  a  single  injury.3 

Another  case  can  be  put  where  the  dispossessed  owner 
has  concurrent  rights  against  two  or  more  persons.  B.  and 
C.  may  have  jointly  dispossessed  A.,  instead  of  being  suc- 
cessive holders  of  the  converted  chattel.  Under  these  cir- 
cumstances A.  may  proceed  against  B.  and  C.  jointly  or 
severally.  If  he  obtain  a  joint  judgment  in  Trespass  or 
Trover,  all  his  rights  against  both  are  merged  therein,  and 

hasty  decision.  [If,  after  a  judgment  against  a  converter,  but  before 
its  satisfaction,  the  dispossessed  owner  retakes  the  chattel,  the  con- 
verter, upon  satisfying  the  judgment  may  maintain  trover  against  the 
former  owner.  Smith  v.  Smith,  51  N.  H.  571.  This  decision  as  well  as 
that  in  Hepburn  v.  Sewell,  5  Har.  &  J.  211  was  based  upon  the  doctrine 
of  relation,  by  which  the  converter's  title,  after  satisfaction  of  the  judg- 
ment, was  made  to  relate  back  to  the  date  of  his  conversion.  The 
decision  seems  to  be  correct,  but  the  doctrine  of  relation  seems  far 
fetched  and  has  been  deservedly  criticised  by  Holmes  J.  in  Miller  v. 
Hyde,  161  Mass.  472,  481.] 

1  Matthews  v.  Menedger,  2  McL.  145;  Spivey  v.  Morris,  18  Ala.  254; 
Dow  v.  King,  52  Ark.  282;  Atwater  v.  Tupper,  45  Conn.  144;  Sharp  v. 
Gray,  5  B.  Mon.   4;   Osterhout  v.   Roberts,  8  Cow.  43;    [Ledbetter  v. 
Embree  (Ind.  1895)  40  N.  E.  R.  928].     But  see  contra,  Marsh  v.  Pier, 
4  Rawle,  273,  286  (semble)  ;  Fox  v.  Northern  Liberties,  3  W.  &  S.  103, 
106  (semble) ;  Wilburn  v.  Bogan,  1  Speer,  179. 

Similarly,  an  unsatisfied  judgment  against  C.  is  no  bar  to  a  subse- 
quent action  against  B.  McGee  v.  Overby,  12  Ark.  164;  Hopkins  v. 
Hersey,  20  Me.  449 ;  Bradley  v.  Brigham,  149  Mass.  141,  144-5.  But  see 
contra,  Murrell  v.  Johnson,  1  Hen.  &  M.  449. 

2  Morris  v.  Robinson,  2  B.  &  C.  196. 
»  Cooper  v.  Shepherd,  3  C.  B.  266. 


580  VIII.     PROPERTY  (IN  GENERAL) 

his  title  to  the  chattel  is  extinguished.  But  if  he  obtain  a 
separate  judgment  against  one,  he  may  still  bring  Replevin 
or  Detinue  against  the  other  to  recover  the  chattel,  or  Tres- 
pass or  Trover  for  its  value;  for  the  latter  cannot  invoke 
the  maxim,  nemo  bis  vexari  debet  pro  eadem  causal  Not 
until  the  judgment  against  the  one  is  satisfied  can  it  be  used 
as  a  bar  in  an  action  against  the  other.  The  controversy 
whether  the  title  to  a  converted  chattel  vests  in  a  defendant 
by  a  simple  judgment,  or  only  after  the  satisfaction  of  the 
judgment,  is,  therefore,  but  another  battle  of  the  knights 
over  the  gold  and  silver  shield.  Under  some  circumstances 
the  title  changes  by  the  judgment  alone;  in  other  cases 
satisfaction  is  necessary  to  produce  that  result.2 

m 

INALIENABILITY    OF    CHOSES    IN    ACTION 

The  rule  that  a  chose  in  action  is  not  assignable  was  a 
rule  of  the  widest  application.  A  creditor  could  not  assign 

1  Love  joy  v.  Murray,  3  Wall.  1;  Elliot  v.  Porter,  5  Dana,  299;  Elliott 
v.  Hayden,   104  Mass.   180;   Floyd  v.  Brown,  1    Rawle,   121    (semble); 
Fox  v.  Northern  Liberties,  3  W.  &  S.  103  (semble) ;  Sanderson  v.  Cald- 
well,  2  Aik.  195;   [Sessions  v.  Johnson,  95  U.  S.  347,  349;  Birdsell  v. 
Shaliol,  112  U.  S.  485,  489;  Knight  v.  Nelson,  117  Mass.  488;  Miller  v. 
Hyde,  161  Mass.  472;  Tolman  v.  Waite,  119  Mich.  341;  Hyde  v.  Noble, 
13  N.  H.  494;  Osterhout  v.  Roberts,  8  Cow.  43;  Russell  v.  McCall,  141 
N.  Y.  437;  Turner  v.  Brook,  6  Heisk.  50]. 

But  see  contra,  Brown  v.  Wootton,  Yelv.  67,  Cro.  Jac.  73;  Adams  V. 
Broughton,  Andr.  18;  Buckland  v.  Johnson,  15  C.  V.  145;  Hunt  v. 
Bates,  7  R.  I.  217;  [Edevain  v.  Cohen,  43  Ch.  Div.  187  (semble)  ;  Mer- 
rick's  Est.  5  W.  &  S.  9,  17;  Hyde  v.  Kiehl,  183  Pa.  414,  429;  Parmenter 
v.  Barstow,  21  R.  I.  410  (senible)  ;  Petticolas  v.  Richmond,  95  Va.  456 
(semble)].  In  Brinsmead  v.  Harrison,  L.  R.  6  C.  P.  584,  L.  R.  7  C.  P. 
547,  one  of  the  joint  converters  pleaded,  to  a  count  in  Detinue,  a  prior 
judgment  against  his  companion.  The  plaintiff  now  assigned  a  deten- 
tion subsequent  to  the  joint  taking.  The  court,  with  some  reluctance, 
held  the  plea  good,  but  also  supported  the  replication,  thus  neutralizing 
one  error  by  the  commission  of  another,  and  so  bringing  about  the  same 
result  as  the  American  cases.  The  fallacy  of  the  notion  that  the  deten- 
tion of  a  chattel  by  the  wrongful  taker  is  a  fresh  tort,  was  exposed, 
curiously  enough,  by  the  same  court  in  an  earlier  case  in  the  same 
volume:  Wilkinson  v.  Verity,  L.  R.  6  C.  P.  206.  Such  a  notion,  as  there 
pointed  out,  would  virtually  repeal  the  statute  of  limitations.  See 
Philpott  v.  Kelley,  3  A.  &  E.  106. 

2  The  writer  has  discovered   a  further  illustration,  which  should  be 
added  to  those  given  in  a  preceding  number  of  this  REVIEW,  in  support 
of  the  principle  that  a  wrongful  possessor  acquires  title  whenever  the 
injured  owner's  right  of  action  is  barred.     If  a  disseisee  levied  a  fine, 


67.     AMES:  DISSEISIN  OF  CHATTELS       581 

his  debt.  A  reversioner  could  not  convey  his  reversion,  nor 
a  remainder-man  his  remainder.  A  bailor  was  unable  to 
transfer  his  interest  in  a  chattel.  And,  as  we  have  seen,  the 
disseisee  of  land  or  chattels  could  not  invest  another  with 
his  right  to  recover  the  res  or  its  value.  In  a  word,  no  right 
of  action,  whether  a  right  in  rem  or  a  right  in  personam, 
whether  arising  ex  contractu  or  ex  delicto,  was  assignable 
either  by  act  of  the  party  or  by  operation  of  law. 

A  right  of  action  for  the  recovery  of  land  or  chattels,  or 
of  a  debt  which,  like  land  or  chattels,  was  regarded  as  a 
specific  res,  did,  indeed,  descend  to  one's  representative  in 
the  case  of  death.  But  this  was  hardly  a  departure  from  the 
rule,  since  the  representative  was  looked  upon  as  a  continu- 
ation of  the  persona  of  the  deceased.1 

There  were,  however,  a  few  exceptions  to  the  rule.  The 
king,  as  might  be  supposed,  could  grant  or  receive  the  bene- 
fit of  a  chose  in  action.  So,  too,  a  reversion  or  a  remainder 
was  transferable  by  fine  in  the  king's  court,2  or  by  a  cus- 
tomary devise,  which,  when  recorded  in  the  local  court, 
operated  like  a  fine.3  Again,  certain  obligations,  by  the 
tenor  of  which  the  obligor  expressly  bound  himself  to  the 
obligee  and  his  assigns,  could  be  enforced  by  a  transferee. 
If,  for  instance,  one  granted  an  annuity  to  A.  and  his  as- 

nothing  passed  to  the  conusee,  but  the  fine  barred  the  conusor's  right. 
The  disseisor,  therefore,  gained  an  absolute  title.  2  Prest.  Abs.  206. 

*The  ancient  appeals  of  battery,  mayhem,  imprisonment,  robbery, 
and  larceny  were  actions  for  vengeance,  and  from  their  strictly  per- 
sonal character  naturally  died  with  the  party  injured.  Trespass  for  a 
personal  injury,  and  de  bonis  asportatis,  and  quare  clausum  fregit, 
being  for  the  recovery  of  damages  only,  also  came  within  the  maxim 
actio  personalis  moritur  cum  persona.  By  St.  4  Edw.  III.,  c.  7,  an 
executor  was  allowed  to  recover  damages  for  goods  taken  from  the  tes- 
tator by  a  trespass.  And  such  has  been  the  elasticity  of  this  statute 
that  under  it  actions  for  a  conversion,  for  a  false  return,  for  infringe- 
ment of  a  trademark,  for  slander  of  title,  for  deceit,  —  in  short,  actions 
for  any  tort  whose  immediate  effect  is  an  injury  to  or  a  diminution  of 
another's  property,  have  been  held  to  survive.  But  not  actions  for 
torts  which  directly  affect  the  person  or  reputation,  and  only  indirectly 
cause  a  loss  of  property.  In  the  United  States  the  argument  that  a 
wrong-doer  ought  not  to  profit  by  the  death  of  his  victim,  has  led  to 
legislation  greatly  increasing  the  actions  that  survive. 

8Attornment  was  necessary  before  the  conusee  could  distrain  or 
bring  an  action  against  the  tenant  for  services  or  rent.  But  the  tenant 
could  be  compelled  to  attorn  by  the  writs  Quid  juris  clamat,  and  Per 
quce  servitia.  2  Nich.  Britt.  46-48. 

8Y.  B.  19  H.  VI.  24-47;  Co.  Lit.  322  a. 


582  V1IL     PROPERTY   (IN  GENERAL) 

signs,  or  covenanted  to  enfeoff  A.  and  his  assigns,  or 
a  charter  of  warranty  to  A.  and  his  assigns,  the  assignee 
was  allowed  to  bring  an  action  in  his  own  name  against 
the  grantor,1  covenantor,2  and  warrantor,3  respectively. 

The  significance  of  this  exception  lies  in  the  fact  that  it 
goes  far  to  explain  the  reason  of  the  rule  which  prohibits 
the  assignment  of  rights  of  action  in  general.  The  tradi- 
tional opinion  that  this  rule  had  its  origin  in  the  aversion 
of  the  "  sages  and  founders  of  our  law  "  to  the  "  multiply- 
ing of  contentions  and  suits  "  4  shows  the  power  of  a  great 
name  for  the  perpetuation  of  error.  The  inadequacy  of 
this  explanation  by  Lord  Coke  was  first  pointed  out  by  Mr. 
Spence. 5  The  rule  is  not  only  older  than  the  doctrine  of 
maintenance  in  English  law,  but  is  believed  to  be  a  principle 
of  universal  law. 

A  right  of  action  in  one  person  implies  a  corresponding 
duty  in  another  to  perform  an  agreement  or  to  make  repa- 
ration for  a  tort.  That  is  to  say,  a  chose  in  action  always 
presupposes  a  personal  relation  between  two  individuals. 
But  a  personal  relation  in  the  very  nature  of  things  cannot 
be  assigned.  Even  a  relation  between  a  person  and  a  phys- 
ical thing  in  his  possession,  as  already  stated,6  cannot  be 

Jl  Nich.  Britt.  269-270;  Maund's  Case,  7  Rep.  28  b;  Co.  Lit.  144, 
Butler's  note  [236] ;  Scott  v.  Lunt,  7  Pet.  596. 

2  (1233)  2  Bract.  Note  Book,  pi.  804;  Y.  B.  21  Edw.  I.  137;  Old  Nat. 
Br.,  Rast.  L.  Tr.  67;   Fitz.  Nat.  Br.  145. 

3  (1233)  2  Bract.  Note  Book,  pi.  804;  Bract,  f.  37  b,  381  b,  390,  391;  1 
Nich.  Britt.  255-256;   (1285)   Fitz.  Ab.  Garr.  93.     These  citations  from 
Bracton  are  hardly  reconcilable  with  the  interpretation  which  Mr.  Jus- 
tice Holmes  has  given  in  "The  Common  Law"   (pp.  373-4)   of  an  ob- 
scure and  possibly  corrupt  passage  in  Bracton,   f.   17  b.     In  view  of 
Professor  Brunner's  investigations  (Zeitschrift  f.  d.  qesammte  Handels- 
recht,  Vol.   22,  p.   59,   and  Vol.   23,  p.   225),  the   distinguished   judge 
would  doubtless  be  among  the  first  to  correct  his  remark  on  p.  374: 
"  By  mentioning  assigns  the  first  grantor  did  not  offer  a  covenant  to 
any  person  who  would  thereafter  purchase  the  land." 

*  Lampet's  Case,  10  Rep.  48  a. 

5  "  But  in  regard  to  choses  in  action,  as  the  same  doctrine  has  been 
adopted  in  every  other  state  of  Europe,  it  may  be  doubted  whether  the 
reason,  which  has  been  the  foundation  of  the  rule  everywhere  else,  was 
not  also  the  reason  for  its  introduction  in  this  country;  namely,  that  the 
credit  being  a  personal  right  of  the  creditor,  the  debtor  being  obliged 
toward  that  person  could  not  by  a  transfer  of  the  credit,  which  was  not 
an   act  of  his,  become  obliged   towards   another."     2  Spence,  Eq.  Jur. 
850.     See  also  Pollock,  Contracts   (5  ed.),  206;  Holmes,  Common  Law, 
340-341;  Maitland,  2  L.  Q.  Rev.  495. 

6  Supra,  315. 


67.     AMES:  DISSEISIN  OF  CHATTELS       583 

transferred.  The  thing  itself  may  be  transferred,  and,  by 
consent  of  the  parties  to  such  transfer,  the  relation  between 
the  transferror  and  the  thing  may  be  destroyed  and  replaced 
by  a  new  but  similar  relation  between  the  transferee  and  the 
res.  But  where  one  has  a  mere  right  against  another,  there 
is  nothing  that  is  capable  of  transfer.  The  duty  of  B.  to 
A.,  whether  arising  ex  contractu  or  ex  delicto,  may  of 
course  be  extinguished  and  replaced  by  a  new  and  coextensive 
duty  of  B.  to  C.  But  this  substitution  of  duties  can  be 
accomplished  only  in  two  ways:  either  by  the  consent  of 
B.,  or,  without  his  consent,  by  an  act  of  sovereignty.  The 
exceptions  already  mentioned  of  assignments  by  or  to 
the  king,  and  conveyances  of  remainders  and  reversions  in 
the  King's  Court,  are  illustrations  of  the  exercise  of  sovereign 
power.  Further  illustrations  are  found  in  the  bankruptcy 
laws  which  enable  the  assignee  to  realize  the  bankrupt's 
clwses  in  action,1  and  in  the  Statute  4  and  5  Anne,  c.  16, 
which  abolished  the  necessity  of  attornment. 

When  the  substitution  of  duties  is  by  consent,  the  consent 
may  be  given  either  after  the  duty  arises  or  contemporane- 
ously with  its  creation.  In  the  former  case  the  substitution 
is  known  as  a  novation,  unless  the  duty  relates  to  land  in 
the  possession  of  a  tenant,  in  which  case  it  is  called  an  at- 
tornment. A  consent  contemporaneous  with  the  creation  of 
the  duty  is  given  whenever  an  obligation  is  by  its  terms 
made  to  run  in  favor  of  the  obligee  and  his  assigns,  as  in 
the  case  of  annuities,  covenants,  and  warranties  before  men- 
tioned, or  to  order  or  bearer,  as  in  the  case  of  bills  and  notes 
and  other  negotiable  securities.  Here,  too,  on  the  occasion 
of  each  successive  transfer,  there  is  a  novation  by  virtue  of 
the  obligor's  consent  given  in  advance;  the  duty  to  the 
transferror  is  extinguished  and  a  new  duty  is  created  in 
favor  of  the  transferee. 

The  practice  of  attornment  prevailed  from  time  imme- 
morial, but  was  confined  to  the  transfer  of  reversions  and 
remainders.  Novation,  although  now  a  familiar  doctrine, 
was,  if  we  except  the  case  of  obligations  running  to  the 

1  In  general,  whatever  would  survive  to  an  executor  passes  to  the 
assignee  of  a  bankrupt. 


584  VIII.     PROPERTY   (IN  GENERAL) 

obligee  and  his  assigns,  altogether  unknown  before  the  days 
of  assumpsit  upon  mutual  promises.1  The  field  for  the  sub- 
stitution of  duties  by  consent  was  therefore  extremely  lim- 
ited, and  in  the  great  majority  of  cases  a  creditor  would  have 
found  it  impossible  to  give  another  the  benefit  of  his  claim 
had  not  the  ingenuity  of  our  ancestors  devised  another  ex- 
pedient, namely,  the  letter  of  attorney.  By  such  a  letter, 
the  owner  of  a  claim  appointed  the  intended  transferee  as 
his  attorney,  with  power  to  enforce  the  claim  in  the  ap- 
pointor's  name,  but  to  retain  whatever  he  might  recover  for 
his  own  benefit.  In  this  way  the  practical  advantage  of  a 
transfer  was  secured  without  any  sacrifice  of  the  principle 
of  the  inalienability  of  choses  in  action.2 

Indeed,  so  effectual  was  the  power  of  attorney  as  a  trans- 
fer, that,  during  a  considerable  interval,  it  was  thought 
unduly  to  stimulate  litigation,  and  therefore  to  fall  within 
the  statutory  prohibition  of  maintenance,  unless  the  power 
was  executed  for  the  benefit  of  a  creditor  of  the  transferor. 
Powers  executed  for  the  benefit  of  a  purchaser  or  donee 
were  treated  as  void  from  the  beginning  of  the  fifteenth 
century,  if  not  earlier,  till  near  the  close  of  the  seventeenth 
century.  3 

1The  rationale  of  this  doctrine  is  as  follows:  The  so-called  assignee 
of  a  claim  is  in  reality  an  attorney  with  a  power  to  sue  for  his  own 
use.  Being  thus  dominus  of  the  chose  in  action,  he  enters  into  a  bilateral 
contract  with  the  obligor,  promising .  the  latter  never  to  enforce  his 
claim  in  return  for  the  obligor's  promise  to  pay  him  what  is  due 
thereon.  This  promise  of  perpetual  forbearance  operates  as  an  equit- 
able release  of  the  old  claim,  and  also  as  a  consideration  for  the  obligor's 
new  promise. 

2  In  1  Lilly's  Ab.  125,  it  is  said:  "A  statute  merchant  or  staple,  or 
bond,  etc.,  can  not  be  assigned  over  to  another  so  as  to  vest  an  interest 
whereby  the  assignee  may  sue  in  his  own  name,  but  they  are  every  day 
transferred  by  letter  of  attorney,  etc.  Mich.  22  Car.  B.  R."  See  also 
Deering  v.  Carrington,  1  Lilly,  Ab.  124;  Shep.  Touchst.  (6  ed.)  240; 
2  Blackst.  Com.  442;  Leake,  Cont.  (2  ed.)  1183;  Gerard  v.  Laws,  L.  R. 
2  C.  P.  308,  309,  per  Willes,  J.  These  letters  of  attorney  for  the  at- 
torney's own  use,  whether  borrowed  from  the  similar  procuratio  in  rem 
suam  of  the  Roman  law  or  not,  are  of  great  antiquity.  (1309)  Riley, 
Memorials  of  London,  68.  "  Know  ye  that  I  do  assign  and  attorn  in 
my  stead  E.,  my  dear  partner,  to  demand  and  receive  the  same  rent 
of  forty  shillings  with  the  arrears  and  by  distress  the  same  to  levy  in 
my  name  .  .'.  and  all  things  to  do  as  to  the  same  matter  FOR  HER  OWN 
PROFIT  as  well  as  ever  I  myself  could  have  done  in  my  own  proper 
person."  See  also  West,  Symbol.  §  521. 

3Y.  B.  9  H.  VI.  64-17;  Y.  B.  34  H.  VI.  30-15;  Y.  B.  37  H.  VI.  13-3; 
Y.  B.  15  H.  VII.  2-3;  Penson  v.  Hickbed  (1588),  4  Leon.  99,  Cro.  Eliz. 


67.     AMES:  DISSEISIN  OF  CHATTELS       585 

The  objection  of  maintenance  at  length  gave  way  before 
the  modern  commercial  spirit,  and  for  the  last  two  centuries 
debts  have  been  as  freely  transferable  by  power  of  attorney 
as  any  other  property. l 

By  statute,  in  many  jurisdictions,  the  assignee  may  even 
sue  in  his  own  name.  But  it  is  important  to  bear  in  mind 
that  the  assignee  under  the  statute  still  proceeds  in  a  cer- 
tain sense  as  the  representative  of  the  assignor.  The  statute 
of  itself  works  no  novation.  It  introduces  only  a  change 
of  procedure.  2  A  release  by  the  assignor  to  the  debtor, 
ignorant  of  the  assignment,  extinguishes  all  liability  of  the 
debtor  to  any  one. 

So,  if  the  assignor  should  wrongfully  make  a  second  as- 
signment, and  the  second  assignee  should  collect  the  debt, 
he  would  keep  the  money,  and  the  first  assignee  would  get 
nothing.3 

170;  South  v.  March  (1590),  3  Leon.  234;  Harvey  v.  Bateman  (1600), 
Noy,  52;  Barrow  v.  Gray  (1600),  Cro.  Eliz.  551;  Loder  v.  Chesleyn 
(1665),  1  Sid.  212;  Note  (1667-1772),  Freem.  C.  C.  145.  See  also  Pol- 
lock, Cont.  (5  ed.)  701;  1  Harv.  L.  Rev.  6,  n.  2. 

The  doctrine  of  maintenance  was  pushed  so  far  that  it  came  to  be 
regarded  as  the  real  reason  for  the  inalienability  of  choses  in  action, 
and  the  notion  became  current  that  no  contracts  were  assignable,  not 
even  covenants  or  policies  of  insurance  and  the  like,  although  expressly 
payable  to  the  obligee  and  his  assigns.  Even  bills  and  notes  were 
thought  to  derive  their  assignability  solely  from  the  custom  of  mer- 
chants. Warranties  being  obviously  not  open  to  the  objection  of 
maintenance  continued  assignable,  and  so  did  annuities,  although  not 
without  question.  Perkins,  Convey,  §  101. 

1  Formerly  an  express  power  of  attorney  was  indispensable  (Mallory 
v.  Lane,  Cro.  Jac.  342),  the  notion  of  an  implied  power  being  as  much 
beyond  the  conception  of  lawyers  three  centuries  ago  as  the  analogous 
idea  of  an  implied  promise.    2  Harv.  L.  Rev.  52,  58.    To-day,  of  course, 
the  power  will  be  implied  from  circumstantial  evidence.     [Formerly  a 
deed  could  not  be  delivered  in  escrow  without  express  words  to  that 
effect.    Bowker  v.  Burdekin,  11  M.  &  W.  128,  147.] 

2  Accordingly  an  assignment  in  New  York,  where,  by  statute,  actions 
must  be  brought  by  the  real  party  in  interest,  did  not  enable  the  as- 
signee to  sue  in  Massachusetts,  when  the  old  rule  that  an  assignee  must 
sue  in  the  assignor's  name  prevailed.     Leach  v.  Greene,  116  Mass.  534; 
Glenn  v.  Busey,  5  Mack.  733.     If  the  statute  truly  effected  a  change 
of  title,  the  assignee,  like  the  indorsee  of  a  bill,  could  sue  in  his  own 
name  anywhere. 

8  The  assignee  of  an  equitable  chose  in  action,  e.  g.,  a  trust,  of  course 
sues  in  his  own  name  without  the  aid  of  a  statute.  But  here,  too,  there 
is  no  novation.  If  the  Hibernicism  may  be  pardoned,  the  assignee  of 
a  trust,  like  an  attorney,  stands  in  the  place  of  his  assignor,  but  does 
not  displace  him.  A  release  from  the  assignor  to  the  innocent  trustee 
frees  the  latter's  legal  title  from  the  equitable  incumbrance.  Newman 
v.  Newman,  28  Ch.  D.  674.  So,  if  a  cestui  que  trust  should  assign  his 


586  VIII.     PROPERTY   (IN  GENERAL) 

We  are  now  in  a  position  to  consider  upon  principle  to 
what  extent  and  in  what  mode  a  disseisee's  interest  in  land 
or  chattels  may  be  transferred.  The  disseisee,  by  reason  of 
the  disseisor's  tort,  has  a  right  to  recover  the  res  from  the 
latter  by  self-redress  or  by  action.  This  relation  between 
the  two,  as  we  have  seen,  cannot  be  specifically  transferred 
to  another.  There  is,  of  course,  no  question  of  novation  in 
such  a  case.  But  the  mode  of  transfer  which  proved  so 
effectual  in  the  case  of  rights  ex  contractu,  is  equally  ap- 
plicable to  claims  arising  ex  dellcto.  The  disseisee  has  only 
to  constitute  the  intended  grantee  his  attorney  with  power 
to  recover  the  land  or  chattel,  and  to  keep  for  his  own  bene- 
fit the  res  when  recovered.  There  is  an  instance  of  such  a 
grant  as  old  as  the  time  of  Richard  I. :  "  G.  filius  G.  ponit 
loco  suo  J.  versus  Gil.  .  .  .  de  placito  XL.  acrarum  terra 
in  H.  ad  lucrandum  vel  perdendum  et  CONCEDIT  EI  TOTUM  jus 
SUUM  quod  habet  in  predicta  terra."  1 

trust  first  to  A.  and  then  to  B.,  and  B.  should,  in  good  faith,  obtain  a 
conveyance  of  the  legal  title  from  the  trustee,  he  could  hold  it  against 
A.  What  is  true  of  the  equitable  trust  is  equally  true  of  the  analogous 
legal  bailment.  By  judicial  legislation  the  purchaser  from  a  bailor  is 
allowed  to  proceed  in  his  own  name  against  the  bailee.  But  a  bailee 
who,  for  value  and  in  ignorance  of  the  bailor's  sale  of  his  interest, 
receives  a  release  from  the  latter,  may  keep  the  chattel.  [If  a  bailee,  in 
ignorance  of  a  sale  by  the  bailor,  should  deliver  the  goods  to  the  bailor 
or  to  some  person  designated  by  the  bailor,  he  could  not  be  charged 
by  the  bailor's  vendee.  He  would  simply  have  performed  his  contract 
according  to  its  tenor.  Saxeby  v.  Wynne,  3  Stark.  Ev.  (3d  ed.)  1159; 
Glynn  v.  E.  I.  Co.  7  App.  Cas.  591;  Jones  v.  Hodgkins,  61  Me.  480; 
Woods  v.  McGee,  7  Oh.  127  (as  explained  in  Newhall  v.  Langdon,  39 
Oh.  St.  87,  92;  McGee  v.  French,  49  S.  Ca.  452  (semble)  ;1  and  if  a  bailor 
should  sell  his  interest  successively  to  A.  and  B.,  and  B.  should  obtain 
possession  from  the  bailee,  A.  could  not  recover  the  chattel  from  B. 
Upon  principle  and  by  the  old  precedents  the  bailor's  interest  is  no 
more  transferable  than  that  of  a  creditor.  Y.  B.  22  Ed.  IV.  10-29; 
Wood  v.  Foster,  1  Leon.  42,  43,  pi.  54;  Marvyn  v.  Lyds,  Dy.  90  b,  pi. 
6;  [Rich  v.  Aldred  6  Mod.  216] ;  2  Blackst.  Com.  453.  As  late  as  1844, 
that  great  master  of  the  common  law,  Mr.  Baron  Parke,  ruled  that  a 
purchaser  from  a  pledger  could  not  maintain  an  action  in  his  own  name 
against  the  pledgee.  The  court  in  bane  reversed  this  ruling.  Franklin 
v.  Neate,  13  M.  &  W.  481.  [See  also  Goodman  v.  Boycott,  2  B.  &  S.  1; 
Bristol  Bank  v.  Midland  Co.  [1891]  2  Q.  B.  653.]  The  innovation  has 
been  followed  in  this  country.  Carpenter  v.  Hale,  8  Gray,  157;  Hub- 
bard  v.  Bliss,  12  All.  590;  Meyers  v.  Briggs,  11  R.  I.  180;  [Jack  v. 
Eagles,  2  All.  (N.  B.)  95]. 

1  (1134)  1  Rot.  Cur.  Reg.  42,  cited  by  Brunner,  1  Zeitschrift  fiir  Ver- 
gleichende  Rechtswissenschaft,  367.  See  also  "A  Boke  of  Presidents," 
fol.  86,  b :  "  Noveritis  me  P.  loco  meo  posuisse  T.  meum  verum  et 
legitimum  atturnatum  ad  prosequendum  .  .  .  vice  et  nomine  meo  pro 


67.     AMES:  DISSEISIN  OF  CHATTELS       587 

The  doctrine  of  maintenance  which  so  long  hampered  the 
assignment  of  contractual  rights  proved  an  even  more  per- 
sistent obstacle  to  the  transfer  of  rights  to  recover  land  or 
chattels.  Indeed,  in  the  case  of  land  it  was  an  insuperable 
obstacle  in  England  until  1845 ;  for  up  to  that  time  the 
Statute  32  Henry  VIII.  c.  16,  expressly  nullified  all  grants 
by  one  disseised.  In  this  country,  however,  the  right  of  the 
grantee  of  a  disseisee  to  bring  a  real  action  in  the  name  of 
his  grantor  has,  during  the  present  century,  been  generally 
recognized.1 

It  is  believed  that  in  England,  at  the  present  day,  one  who 
is  dispossessed  of  his  chattels  may  so  far  transfer  his  interest 
as  to  enable  the  assignee  to  bring  an  action  to  recover  the 
chattel  or  its  value  in  the  name  of  the  assignor.  But  no  de- 
cision has  been  found  upon  the  point.  In  the  United  States 
the  right  of  the  transferee  to  sue  in  the  transferor's  name,2 
or,  in  jurisdictions  where  the  real  party  in  interest  must  be 
plaintiff,  in  his  own  name,3  would  be  universally  conceded. 

We  have  thus  far  assumed  that  the  dispossessed  owner 

omnibus  illis  terris  .  .  .  vocatis  W.  .  .  .  quae  mihi  .  .  .  descendebant  et 
cjuae  in  presenti  a  me  injuste  detinentur.  Necnon  in  dictas  terras  . 
vice  et  nomine  meo  ad  intrandum  ac  plenam  .  .  .  possessionem  et  seisi- 
nam  .  .  .  capiendum  .  .  .  et  super  hujusmodi  possessione  sic  capta  et 
habita  dictas  terras  ...  AD  USUM  DICTI  T.  custodiendum  gubernandum 
occupandum  et  ministrandum." 

Steeple  v.  Downing,  60  Ind.  478;  Vail  v.  Lindsay,  67  Ind.  528; 
Wade  v.  Lindsey,  6  Met.  407;  Cleaveland  v.  Flagg,  4  Cush.  76;  Farnum 
v.  Peterson,  111  Mass.  148;  McMahan  v.  Bowe,  114  Mass.  140;  Rawson 
v.  Putnam,  128  Mass.  552,  553;  Stockton  v.  Williams,  1  Doug.  (Mich.) 
546;  Betsey  v.  Torrance,  34  Miss.  132;  Hamilton  v.  Wright,  37  N.  Y. 
502;  Wilson  v.  Nance,  11  Humph.  189,  191;  Edwards  v.  Roys,  18  Vt. 
473;  University  v.  Joslyn,  21  Vt.  61;  Edwards  v.  Parkhurst,  21  Vt. 
472;  Park  v.  Pratt,  38  Vt.  545;  [Paton  v.  Robinson,  (Conn.  1909)  71  Atl. 
R.  730;  Brinley  v.  Whiting,  5  Pick.  348;  Livingston  v.  Proseus,  2  Hill, 
526;  Dever  v.  Hagerty,  169  N.  Y.  481;  Galbraith  v.  Payne,  12  N.  Dak. 
164;  Ten  Eyck  v.  Witbeck,  55  N.  Y.  Ap.  Div.  165,  affirmed  170  N.  Y. 
564;  Saranac  Co.  v.  Roberts,  125  N.  Y.  Ap.  Div.  333,  341;  Hasbrouck 
v.  Bunce,  62  N.  Y.  475]. 

2Stogdel  v.  Fugate,  2  A.  K.  Marsh.  136;  Holly  v.  Huggeford,  8  Pick. 
73;  Boynton  v.  Willard,  10  Pick.  166;  Clark  v.  Wilson,  103  Mass.  219, 
222;  Jordan  v.  Gillen,  44  N.  H.  424;  North  v.  Turner,  9  S.  &  R.  244. 

•Lazard  v.  Wheeler,  22  Cal.  139;  Final  v.  Backus,  18  Mich.  218; 
Brady  v.  Whitney,  24  Mich.  154;  Grant  v.  Smith,  26  Mich.  201;  Smith 
v.  Kennett,  18  Mo.  154;  Doering  v.  Kenamore,  86  Mo.  588;  McKee  v. 
Judd,  12  N.  Y.  622;  Robinson  v.  Weeks,  6  How.  Pr.  161;  Butler  v.  N.  Y. 
Co.,  22  Barb.  110;  McKeage  v.  Hanover  Co.,  81  N.  Y.  38;  Birdsall  v. 
Davenport,  43  Hun,  552;  [Lincoln  Co.  v.  Allen,  82  Fed.  148;  Howe  v. 
Johnson,  117  Cal,  37;  Lawrence  v.  Wilson,  64  N.  Y.  Ap.  Div.  562]. 


588  VIII.     PROPERTY   (IN  GENERAL) 

has  nothing  to  transfer  but  a  right  of  action  or  recaption; 
that  when  he  is  called  owner,  nothing  more  is  meant  than  that 
he  has  the  chief  one  of  the  two  elements  of  perfect  ownership, 
namely,  the  right  of  possession,  and  is,  therefore,  potentially 
owner.  This  assumption  is  conceived  to  be  well  founded,  and 
is  supported  by  abundant  authority.1  There  are,  however, 
a  few  decisions  and  dicta  to  the  contrary.2  These  adverse 
opinions  all  go  back  to  a  dictum  of  Mr.  Justice  Story :  "  I 
know  of  no  principle  of  law  that  establishes  that  a  sale  of 
personal  goods  is  invalid  because  they  are  not  in  the 
possession  of  the  rightful  owner,  but  are  withheld  by  a 
wrong-doer.  The  sale  is  not,  under  such  circumstances,  the 
sale  of  a  right  of  action,  but  it  is  the  sale  of  the  thing  itself, 
and  good  to  pass  the  title  to  every  person,  not  holding  the 
same  under  a  bona  fide  title  for  a  valuable  consideration 
\yithout  notice;  and  a  fortiori  against  the  wrong-doer." ' 
Had  this  unfortunate  dictum  proceeded  from  a  less  distin- 
guished source,  it  probably  would  not  have  had  its  present 
following.  It  may  be  said  of  it  that  it  involves  a  petitio 
principi,  assuming  without  proof,  and  in  contradiction  of 
all  precedent,  that  the  dispossessed  owner  really  has  some- 
thing more  than  a  right  of  action.  What  this  something  is 
has  never  been  defined,  and,  it  is  submitted,  for  the  reason 
that  non-existent  things  are  incapable  of  definition. 

Let  us  test  this  dictum,  however,  by  some  of  its  practical 
consequences.  We  will  suppose  that  after  the  sale  the  con- 

*In  addition  to  the  early  English  authorities  cited  supra,  pp.  34-35, 
see  Scott  v.  McAlpine,  6  Up.  Can.  C.  P.  302;  Murphy  v.  Dunham,  38 
Fed.  Rep.  503,  506 ;  Goodwyn  v.  Lloyd,  8  Port.  237 ;  Brown  v.  Lipscomb, 
9  Port.  472;  Dunklin  v.  Williams,  5  Ala.  199;  Huddleston  v.  Huey,  73 
Ala.  215;  Foy  v.  Cochran,  88  Ala.  353;  McGoon  v.  Ankeny,  11  111.  558; 
O'Keefe  v.  Kellogg,  15  111.  347;  Taylor  v.  Turner,  87  111.  296  (semble} ; 
Ericson  v.  Lyon,  26  111.  Ap.  17;  Stogdel  v.  Fugate,  2  A.  K.  Marsh.  136; 
Young  v.  Ferguson,  1  Litt.  298;  Davis  v.  Herndon,  39  Miss.  484;  War- 
ren v.  St.  Louis  Co.,  74  Mo.  521;  Doering  v.  Kenamore,  86  Mo.  588; 
Gardner  v.  Adams,  12  Wend.  297;  Blount  v.  Mitchell,  1  Tayl.  (N.  C.) 
130;  Morgan  v.  Bradley,  3  Hawks,  159;  Stedman  v.  Riddick,  4  Hawks, 
29;  Overton  v.  Williston,  31  Pa.  155. 

This  note  and  the  following  are  a  revision  of  note  5,  supra,  p.  35. 

2  Brig  Sarah  Ann,  2  Sumn.  206,  211;  Tome  v.  Dubois,  6  Wall.  548; 
Cartland  v.  Morrison,  32  Me.  190;  Webber  v.  Davis,  44  Me.  147;  Clark 
v.  Wilson,  103  Mass.  219,  222-3  (semble) ;  Dahill  v.  Booker,  140  Mass. 
308,  311  (semble) ;  Serat  v.  Utica  Co.,  102  N.  Y.  681  (semble) ;  Kimbro 
t>.  Hamilton,  2  Swan,  190. 

'Brig  Sarah  Ann,  2  Sumn.  206,  211. 


67.     AMES:  DISSEISIN  OF  CHATTELS       589 

verter,  in  ignorance  thereof,  makes  full  compensation  to  the 
vendor  for  the  conversion,  and  receives  from  him  a  release. 
Will  it  be  maintained  that  the  converter  cannot  hold  the 
chattel  against  the  vendee?  And  yet  if  the  title  passed  to 
the  vendee  by  the  sale,  that  title  cannot  be  affected  by  a  sub- 
sequent release  by  one  who  has  no  title.  Again,  we  may  as- 
sume that  the  vendor  wrongfully  makes  a  second  sale,  and 
that  the  second  vendee,  being  still  in  ignorance  of  the  first 
sale,  recovers  the  chattel  or  its  value  from  the  converter. 
Must  the  second  vendee  surrender  what  he  recovers  to  the 
first  vendee?  Surely  not.  But  he  must  if  the  dictum  under 
discussion  is  sound.  Thirdly,  if  the  title  passed  to  the 
vendee,  what  becomes  of  the  vendor's  right  of  action  ?  Surely 
he  cannot  recover  the  value  of  the  chattel  from  the  converter 
after  he  has  sold  it  to  another.  But  it  may  be  urged  he 
will  be  entitled  to  nominal  damages  only.  Be  it  so.  Sup- 
pose, then,  that  immediately  after  the  sale  the  chattel  is 
accidentally  destroyed.  The  vendor  will  recover  his  nominal 
damages,  the  vendee  will  get  nothing,  and  the  converter  will 
go  practically  scot  free.  It  is  possible  to  say,  however,  that 
the  sale  passes  not  only  the  title,  but  also  the  right  to  sue 
in  the  vendor's  name  for  the  conversion.  But  this  hypothesis 
may  work  an  injustice  to  the  converter.  If  not  sued  for  six 
years  his  title  will  be  perfect.  Suppose  the  sale  to  occur 
near  the  end  of  the  period  of  limitation,  and  that  the  vendee 
can  prove  a  conversion  subsequent  to  the  sale,  as  by  a 
demand  and  refusal,  the  statute  would  run  for  another  six 
years,  which  could  not  have  happened  in  favor  of  the  vendor 
if  there  had  been  no  sale.  In  other  words,  the  rule,  Nemo 
dare  potest  quod  non  habet,  would  be  violated.1 

All  these  unsatisfactory  results  are  avoided  by  the  adop- 
tion of  the  opposite  view,  supported  alike  by  precedent  and 
general  reasoning,  that  a  right  of  action  is  the  sum  and 
substance  of  the  interest  of  a  dispossessed  owner  of  a  chattel. 
On  this  theory  the  sale  of  the  disseisee's  right  of  action  has 
the  same  operation  as  the  assignment  of  a  debt.  The  vendee 
stands  in  the  place  of  the  grantor,  but  does  not  displace 
him.  He  cannot  accordingly  extend  the  statute  of  limita- 
Overton  v.  Williston,  31  Pa.  155,  160. 


590  VIII.     PROPERTY   (IN  GENERAL) 

tions  to  the  detriment  of  the  converter.  A  release  by  the 
vendor  for  value  to  the  converter  who  is  ignorant  of  the 
sale,  although  wrongful,  extinguishes  all  right  to  recover 
possession  from  the  latter,  and  so  makes  him  complete  owner 
of  the  chattel.  And,  finally,  a  second  purchaser  from  the  dis- 
possessed owner,  who  in  good  faith  gets  the  chattel  from 
the  converter,  may  keep  it.  If,  furthermore,  statutes  existed 
in  all  jurisdictions  enabling  the  purchaser  from  a  dispossessed 
owner  of  a  chattel  to  sue  for  its  recovery  in  his  own  name, 
there  would  be  a  complete  harmony  between  the  requirements 
of  legal  principle  and  commercial  convenience. 

In  conclusion,  then,  the  ancient  doctrine  of  disseisin  of 
land  and  chattels  was  not  an  accident  of  English  legal  his- 
tory, but  a  rule  of  universal  law.  Brian's  dictum,  that  the 
wrongful  possessor  had  the  property  and  the  dispossessed 
owner  only  the  right  of  property,  rightly  understood,  is  not 
a  curiosity  for  the  legal  antiquarian,  but  a  working  prin- 
ciple for  the  determination  of  controversies  for  all  time. 


68.    THE    MYSTERY    OF    SEISIN1 

BY  FREDERIC  WILLIAM  MAITLAND  2 

ANY  one  who  came  to  the  study  of  Coke  upon  Littleton 
with  some  store  of  modern  legal  ideas  but  no  knowledge 
of  English  Real  Property  Law  would,  it  may  be  guessed, 
at  some  stage  or  another  in  his  course  find  himself  saying 
words  such  as  these :  — '  Evidently  the  main  clue  to  this 
elaborate  labyrinth  is  the  notion  of  seisin.  But  what  pre- 
cisely this  seisin  is  I  cannot  tell.  Ownership  I  know  and 
possession  I  know,  but  this  tertium  quid,  this  seisin,  eludes 
me.  On  the  one  hand  when  Coke  has  to  explain  what  is 
meant  by  the  word  he  can  only  say  3  that  it  signifies  posses- 
sion, with  this  qualification  however  that  it  is  not  to  be  used 
of  movables  and  that  one  who  claims  no  more  than  a  chattel 
interest  in  land  can  not  be  seised  though  he  may  be  possessed. 
But  on  the  other  hand  if  I  turn  from  definitions  to  rules 
then  certainly  seisin  does  look  very  like  ownership,  insomuch 
that  the  ownership  of  land  when  not  united  with  the  seisin 
seems  no  true  ownership.' 

The  perplexities  of  this  imaginary  student  would  at  first 
be  rather  increased  than  diminished  if  he  convinced  himself, 
as  I  have  convinced  myself  and  tried  to  convince  others,  that 
the  further  back  we  trace  our  legal  history  the  more  per- 
fectly equivalent  do  the  two  words  seisin  and  possession  be- 
come, that  it  is  the  fifteenth  century  before  English  lawyers 
have  ceased  to  speak  and  to  plead  about  the  seisin  (thereby 
being  meant  the  possession)  of  chattels.4  Certainly  as  we 

1FThis  Essay  was  originally  published  in  the  Law  Quarterly  Review, 
1886,  vol.  II,  pp.  481-496. 

aA  biographical  note  of  this  author  is  prefixed  to  Essay  No.  1,  in 
Volume  I  of  this  Collection. 

3  Co.  Lit.  17  a,  153  a,  200  b. 

*Law  Quarterly  Review,  July,  1885.  The  Seisin  of  Chattels.  I  am 
indebted  to  Mr.  M.  M.  Bigelow,  Mr.  H.  W.  Elphinstone,  and  a  learned 
critic  in  the  Solicitors'  Journal  for  several  new  examples,  both  very 


592  VIII.     PROPERTY  (IN  GENERAL) 

make  our  way  from  the  later  to  the  older  books  we  do  not 
seem  to  be  moving  towards  an  age  when  there  was  some 
primeval  confusion  between  possession  and  ownership.  We 
find  ourselves  debarred  from  the  hypothesis  that  within  time 
of  memory  these  two  modern  notions  have  been  gradually 
extricated  from  a  vague  ambiguous  seism  in  which  once  they 
were  blent.  In  Bracton's  book  the  two  ideas  are  as  distinct 
from  each  other  as  they  can  possibly  be.  He  is  never  tired 
of  contrasting  them.  In  season,  and  (as  the  printed  book 
stands)  out  of  season  also,  he  insists  that  seisina  or  possessio 
is  quite  one  thing,  dominium  or  proprietors  quite  another. 
He  can  say  with  Ulpian,  Nihtt  commune  habet  possessio  cum 
proprietate.1 

There  are  some  perhaps  who  would  have  for  the  student's 
questionings  a  ready  and  brief  answer,  satisfactory  to  them- 
selves if  not  to  him.  If,  they  would  say,  you  are  thinking 
of  ownership  and  applying  that  notion  to  English  land, 
you  indeed  disquiet  yourself  in  vain ;  dismiss  the  idea ;  it 
is  not  known,  never  has  been  known,  to  our  law ;  land  in  this 
country  is  not  owned,  it  is  holden,  holden  immediately  or 
mediately  of  the  king.  The  questioner  might  be  silenced; 
I  doubt  he  would  be  convinced.  In  the  first  place  he  might 
urge,  and  it  seems  to  me  with  truth,  that  the  theory  of 
tenure,  luminous  as  it  may  be  in  other  directions,  sheds  no 
one  ray  of  light  on  the  strangest  of  the  strange  effects  which 
seisin  and  want  of  seisin  had  in  our  old  law.  In  the  second 
place  he  might  appeal  to  authority  and  remark  that  Coke, 
who  presumably  knew  some  little  of  tenures,  speaks  freely 
and  without  apology  of  the  ownership  and  even  the  *  absolute 
ownership  '  2  of  land,  while  as  to  Bracton,  who  lived  while 
feudalism  was  yet  a  great  reality,  for  lands  and  for  chattels 
he  has  the  same  words,  to  wit,  dominium  and  proprietas. 

early  and  very  late,  of  the  use  of  the  word  seisin  in  connection  with 
chattels.  (See  Litt.  sec.  177,  also  Paule  v.  Moodie,  2  Roll.  Rep.  131.) 
But  as  to  the  usage  of  the  thirteenth  century,  I  have  now,  after  having 
copied  more  than  a  thousand  cases,  no  doubt  whatever:  the  words 
possideo,  possessio  are  extremely  rare,  but  one  can  be  seised  of  any- 
thing, even  of  a  wife  or  of  a  husband.  I  have  known  a  woman  assert, 
in  proof  of  her  marriage,  that  she  remained  seised  of  her  husband's 
body  after  his  death. 

1  Bracton,  f.  113,  from  Dig.  41.    2  (de  acquir.  vel  amit.  poss.)  12.  §  1. 

aCo.  Lit.  369  a,  17  a,  b. 


68.     M  AIT  LAND:  MYSTERY  OF  SEISIN     593 

But  it  may  well  be  said,  and  this  brings  us  to  more  profit- 
able doctrine,  that  English  law  knew  no  true  ownership  of 
land  because  the  rights  of  a  landowner  who  was  not  seised 
fell  far  short  of  our  modern  conception  of  ownership.  De- 
prive the  tenant  in  fee  simple  of  seisin,  and  he  is  left  with  a 
right  of  entry.  Even  now  this  would  be  the  most  technically 
correct  description  of  his  right.  Until  lately  his  right 
might  undergo  a  still  further  degradation;  from  having 
been  a  right  of  entry  it  might  be  debased  into  a  mere  right 
of  action. 

Now  it  is  to  the  nature  of  these  rights,  whether  we  call 
them  ownership  or  no,  or  rather  to  one  side  of  their  nature, 
that  I  would  here  draw  attention.  To  simplify  matters  as 
much  as  possible  we  may  for  the  moment  leave  out  of  account 
all  estates  and  interests  less  than  fee  simple.  The  question 
then  becomes  this,  what  is  the  nature  of  the  rights  given  by 
our  old  law  to  a  person  who  is  lawfully  entitled  to  be  seised 
of  land  in  fee  simple  when  as  a  matter  of  fact  some  other 
person  is  seised  ?  or  ( to  use  words  which  will  not  be  misunder- 
stood though  they  are  not  the  proper  words  of  art)  what 
is  the  nature  of  the  rights  of  an  absolute  owner  when  some 
stranger  is  in  possession? 

Such  a  student  as  I  have  imagined  might  well  be  prepared 
to  find  that  possession  by  itself,  or  possession  coupled  with 
certain  other  elements  such  as  good  faith  and  colour  of  title, 
or  possession  continued  for  a  certain  period,  would  have  cer- 
tain legal  effects,  effects  which  would  consist  in  protecting 
the  possessor  against  mere  trespassers,  in  entitling  him  to 
recover  possession  if  ejected  by  a  stranger,  in  depriving 
the  true  owner  of  any  right  to  obtain  possession  save  by 
recourse  to  the  courts,  in  at  last  depriving  that  owner  of  all 
right  whatever  and  conferring  on  the  possessor  a  title  good 
against  all  men.  He  might  expect  too  that  in  a  system  rich 
in  definite  forms  of  action,  some  possessory  some  proprietary, 
the  outcome  of  different  ages,  these  effects  would  be  very 
complicated;  and  certainly  he  would  not  be  disappointed. 
He  would,  for  example,  find  the  ousted  owner  gradually  los- 
ing his  remedies  one  by  on  p.  first  the  remedy  by  self-help, 

.  then  the  writs  of  entry,  lastly 


594  VIII.     PROPERTY   (IN  GENERAL) 

the  very  writ  of  right  itself.  He  would  here  find  much  to 
puzzle  him,  for  the  rules  as  to  the  conversion  of  a  right  of 
entry  into  a  right  of  action  seem  to  us  quaint  and  arbitrary. 
Still  all  these  manifold  and  complex  effects  of  possession  and 
dispossession,  seisin  and  want  of  seisin,  are  of  a  kind  known 
and  intelligible,  partly  due  to  formalities  of  procedure  and 
statutory  caprices,  but  tending  in  the  main  to  protect  the 
possessor  in  his  possession  and  uphold  the  public  peace 
against  violent  assertions  of  proprietary  right;  analogies 
may  be  found  in  other  systems  of  law  modern  as  well  as 
ancient. 

But  this  is  far  from  all.  Seisin  has  effects  of  a  quite 
other  kind.  The  owner  who  is  not  seised  not  only  loses 
remedies  one  by  one,  but  he  seems  hardly  to  have  ownership, 
and  this,  not  because  all  lands  are  held  of  the  king,  but  be- 
cause as  regards  such  matters  as  the  alienation,  transmission, 
devolution  of  his  rights  he  seems  to  be  in  a  quite  different 
position  from  that  in  which  we  should  expect  to  find  a  per- 
son who,  though  he  has  not  possession,  has  yet  ownership. 
Let  a  few  rules  be  repeated  that  were  law  until  but  a  short 
while  since.  They  are  well  known,  but  it  may  be  worth 
while  to  put  them  together,  for  they  make  an  instructive 
whole. 

(1)  Until  the  1st  of  October  1845,  a  right  of  entry  could 
not  be  alienated  among  the  living.1  In  other  words,  the 
owner  who  is  not  seised  has  nothing  to  sell  or  to  give  away. 

An  explanation  of  this  rule  has  been  found  in  the  law's 
dislike  of  maintenance.  It  may  be  given  in  the  words  of  Sir 
James  Mansfield :  — '  Our  ancestors  got  into  very  odd  no- 
tions on  these  subjects,  and  were  induced  by  particular 
causes  to  make  estates  grow  out  of  wrongful  acts.  The 
reason  was  the  prodigious  jealousy  which  the  law  always  had 
of  permitting  rights  to  be  transferred  from  one  man  to  an- 
other, lest  the  poorer  should  be  harassed  by  rights  being 
transferred  to  more  powerful  persons.'  2  This  bit  of  rational- 
ism is  of  respectable  antiquity ;  it  is  certainly  as  old  as  Coke's 
day ;  3  and  true  it  is  that  at  one  time  our  laws  did  manifest  a 

*8  &  9  Viet.  c.  106,  sec.  6. 

*Goodright  v.  Forrester,  I  Taunt.  613. 

3  Co.  Lit.  213  b;  Lampet's  Case,  10  Rep.  48  a. 


68.     M  AIT  LAND:  MYSTERY  OF  SEISIN     595 

great,  but  seemingly  most  reasonable,1  jealousy  of  main- 
tenance and  champerty,  of  bracery  and  the  buying  of  pre- 
tenced  titles.  But  still  the  explanation  seems  insufficient. 
Its  insufficiency  will  be  best  seen  when  we  pass  to  some  other 
rules.  In  passing,  however,  let  us  notice  how  deeply  rooted 
in  our  old  law  this  rule  must  be.  We  come  upon  it  directly 
we  ask  the  simplest  question  as  to  the  means  of  transferring 
ownership.  What  is  the  one  '  assurance,'  the  one  means  of 
passing  ownersrjjjj,  Kown  TO  the  common'  law?  Why,  if  we 
leave  out'  of  account  litigious  proceedings  real  or  fictitious, 
it  is^ETie  feoff ment,  and  there  must  be  livery  of  seisin,  that. 
is,~delivery  oir  possession.  One  cannot  deliver  possession  to 
another  when  a  third  person  is  possessing;  so  a  right  of 
entry  cannot  but  be  inalienable.  Or  put  it  this  way:  our 
old  law  has  an  action  which  is  thoroughly  proprietary,  which 
raises  the  question  of  most  mere  right,  the  writ  of  right,  the 
only  hope  of  one  who  cannot  base  his  claim  on  a  recent  pos- 
session. Yet  even  in  the  writ  of  right  the  demandant  must 
count  upon  his  own  seisin  or  on  the  seisin  of  some  ancestor, 
and  thence  deduce  a  title  by  descent ;  he  cannot  count  on  the 
seisin  of  a  donor  or  vendor,  '  for  the  seisin  of  him  of  whom 
the  demandant  himself  purchased  the  land  availeth  not.' 2 
This  is  a  rule  which  can  be  traced  from  Coke  to  Bracton,3  a 
rule  of  procedure,  be  it  granted,  but  a  rule  which  shows 
plainly  that  he  who  has  no  seisin  has  nothing  that  he  can 
give  to  another.  But  to  this  matter  of  alienation  inter  vivos 
we  will  return. 

(2)  Before  the  1st  of  January  1838 4  a  right  of  entry 
could  not  be  devised  by  will.  About  devises  of  course  we 
cannot  expect  much  ancient  common  law.  The  question  de- 
pended on  the  meaning  of  the  statutes  of  1540  5  and  154$;  e 
but  the  manner  in  which  these  statutes  were  interpreted  is 
worthy  of  note.  Throughout  the  verb  used  of  the  person 
who  is  empowered  to  make  a  will  is  the  verb  to  have.  The 

1  Stubbs,  Const.  Hist.  §  295. 

*Co.  Lit  293  a. 

3  Bracton,  f.  376. 

*  1  Vic.  cap.  26,  sec.  3. 

6  32  Hen.  VIII,  cap.  1. 

6  34  Hen.  VIII,  cap.  5. 


596  VIII.     PROPERTY   (IN  GENERAL) 

person  who  has  any  manors,  lands,  tenements  or  heredita- 
ments may  dispose  of  them  by  will.  But  though  some  modern 
judges  did  not  much  like  the  interpretation,  still  the  old 
interpretation  was  that  the  disseised  owner  has  not  any  land, 
tenement,  or  hereditament,  and  therefore  has  nothing  to 
leave  by  his  will. l  A  case  from  the  year  1460  shows  plainly 
that  before  the  statutes  a  similar  rule  prevailed;  to  give 
validity  to  a  devise  under  local  custom  it  was  essential  that 
the  testator  should  die  seised,  though  it  was  doubted  whether 
he  need  be  seised  when  making  the  will. 2 

(3)  Until  the  1st  of  January  18343  seisina  fecit  stipitem. 
Now  this  when  duly  considered  seems  a  very  remarkable 
rule,  for  it  comes  to  this,  that  a  landowner  who  has  never 
been  in  possession  has  no  right  that  he  can  transmit  to  his 
heir,  or  in  other  words,  that  ownership  is  not  inheritable. 
Such  a  person  may  be  (to  use  a  venerable  simile)  the  passive 
*  conduit-pipe  '  through  which  a  right  will  pass,  but  no  one 
shall  ever  get  the  land  by  reason  that  he  was  this  man's  heir ; 
a  successful  claimant  must  make  himself  heir  to  one  who  was 
seised.  But  what  explanation  have  we  for  this?  A  fear  of 
maintenance  very  obviously  fails  us,  and  as  it  seems  to  me 
feudalism  must  fail  us  also,  unless  we  are  to  suppose  a  time 
when  seisin  meant  not  mere  possession  but  possession  given, 
or  at  least  recognized,  by  the  lord  of  the  fee.  But  for 
imagining  any  such  time  we  have  no  warrant.  It  seems  law 
from  the  first  that  the  rightful  tenant  can  be  disseised, 
though  the  lord  be  not  privy  to  the  disseisin,  and  that  the 
disseisor  will  be  seised  whether  the  lord  like  it  or  no. 

And  to  constitute  a  new  stock  of  descent  a  very  real  pos- 
session was  necessary.  The  requisite  seisin  was  not  a  right 
which  could  descend  from  father  to  son ;  it  was  a  pure 
matter  of  fact.  Even  though  there  was  no  adverse  possessor, 
even  though  possession  was  vacant,  the  heir  was  not  put  into 
seisin  by  his  ancestor's  death;  an  entry,  a  real  physical 

lThe  cases  are  collected  in  Jarman  on  Wills,  4th  ed.,  vol.  1,  pp.  49, 
50.  Perhaps  they  leave  open  some  questions  which  will  never  now  be 
answered.  But  the  main  doctrine  seems  beyond  dispute.  See  Co.  3 
Bep.  35  a. 

4  Y.  B.  39  Hen.  VI.  f.  18  (Mich.  pi.  23). 

*3  &  4  Will.  4.  c.  106;  Co.  Lit.  11  b. 


68.     M  AIT  LAND:  MYSTERY  OF  SEISIN     597 

entry,  was  necessary.  We  all  know  the  old  story  of  the 
man  who  was  half  inside  half  outside  the  window,  and  who 
was  pulled  out  by  the  heels.  It  was  certainly  a  nice  problem 
whether  he  possessed  cor  pore  as  well  as  animo;  but  at  any 
rate  on  this  depended  the  question  whether  he  had  been  seised 
and  could  maintain  the  novel  disseisin  against  those  who  ex- 
tracted him.1  .«4j 

(4)  The  Dower  Act  of  1833 2  for  the  first  time  gave  a 
widow  dower  of  a  right  of  entry;  but  for  that  statute  the 
widow  of  one  who  has  not  been  seised  goes  unendowed.  It  is 
true  that  in  this  case  *  a_seisiiL  in  law  or  a  civil.jseisin '  would 
answer  the  purpose  of  c  a  seisin  in  deed.'  3  But  this  6  seisin\ 
in  law '  only  existed  when  possession  was  in  fact  vacant.  A' 
man  was  seised  neither  in  fact  nor  yet  in  law  if  some  other 
person  had  obtained  and  was  holding  seisin.  If  such  an  one 
did  not  get  seisin  during  the  coverture  his  wife  would  get  no 
dower. 

Here  it  may  be  remarked  that  seisin  did  to  some  extent 
become  a  word  with  many  meanings  or  rather  shades  of 
meaning.  The  seisin  which  is  good  enough  for  one  purpose 
is  insufficient  for  another.  '  What  shall  be  said  a  sufficient 
seisin  '  to  give  dower,  to  give  curtesy,  to  constitute  a  stock 
of  descent,  to  maintain  a  writ  of  right 4  —  each  of  these 
questions  has  its  own  answer.  But  I  believe  that  the  varia- 
tions are  due  (1)  to  the  treatment  of  cases  in  which  no  one 
has  corporeal  possession  of  the  lands,  and  (2)  to  the  applica- 
tion of  the  idea  of  possession  to  subjects  other  than  lands, 
namely,  the  incorporeal  hereditaments,  an  application  which 
must  necessarily  be  difficult  and  may  easily  be  capricious. 
No  fictitious  seisin  in  law  was,  so  far  as  I  am  aware,5  ever 
attributed  to  on^_who  however  ffood  his  title  was  ffoftrTy 
dispossessed,  to  one  whpgjp  ]t*nr\  was  bfi?nff  withheld  from 
him  by  a  stranger  to  the  title.  And  the  <  seisin  in  law '  may 
well  set  us  thinking.  When  we  hear  that  A  is  B  in  law  we  can 

*8  Ass.  f.  17,  pi.  27. 
2  3  &  4  Will.  4.  cap.  105. 
8  Co.  Lit.  31  a. 

*  Co.  Lit.  15  b,  29  a,  31  a,  181  a. 

6  It  may  be  more  to  the  point  that  Mr.  Challis  (Real  Property,  p. 
182)  has  written  to  the  same  effect.  See  Leach  v.  Jay,  9  C,  D,  42. 


-598  VIII.     PROPERTY   (IN  GENERAL) 

generally  draw  an  inference  about  past  history :  —  it  has 
been  found  convenient  to  extend  to  A  a  rule  which  was  once 
applied  only  to  things  which  were  B  in  deed  and  in  truth; 
in  short,  there  was  a  time  when  A  was  not  B  even  in  law. 
For  a  few  but  by  no  means  all  purposes  we  may  say  with 
the  old  French  lawyers,  '  le  mort  saisit  le  vif ; '  the  seisin  in 
law  would,  e.  g.  give  dower,  but  it  would  not  make  a  stock  of 
descent. 

(5)  To  give  a  husband  curtesy  seisin  during  the  coverture 
Was  necessary.  This  rule  has  never  yet  been  abolished, 
fchough  it  has  been  somewhat  concealed  from  view  both  by 
Equity  and  by  statutes. 

So  far  we  have  been  concerned  with  rules  which  are  still 
generally  known,  and  one  of  them,  the  rule  about  curtesy, 
has  not  yet  become  a  matter  for  the  antiquary.  It  now  be- 
comes desirable  to  glance  at  some  obscurer  topics.  Since 
we  are  sometimes  assured  that  in  one  way  or  another  the 
strange  effects  of  seisin  and  want  of  seisin  are  due  to  feudal- 
ism, we  ought  to  ask  how  the  rights  of  a  lord  were  affected 
by  the  fact  that  *  the  very  tenant,'  the  true  owner,  was  out 
of  seisin  and  some  other  person  in  seisin. 

Suppose  tenant  in  fee  simple  is  disseised  and  then  dies 
without  an  heir,  what  can  be  plainer  on  feudal  principles 
(feudal  principles  as  understood  in  these  last  times)  than 
that  the  land  will  escheat  to  the  lord,  that  the  lord  will  be 
able  to  recover  the  land  from  the  disseisor  or  from  any  person 
who  has  come  to  the  land  through  or  under  the  disseisor? 
But  such  was  not  the  law  even  in  the  last,  even  in  the  present 
century,  and  if  it  be  law  now,  a  point  about  which  I  had 
rather  say  nothing,  this  must  be  the  result  either  of  the 
statutes  which  have  deprived  feoffments  and  descents  of  their 
ancient  efficacy  or  else  of  a  convenient  forgetfulness.  In 
Coke's  day  it  seems  to  have  been  settled  that  from  the  orig- 
inal disseisor  the  lord  could  obtain  the  land  either  by  entry 
or  by  action  (writ  of  escheat),  provided  that  he  had  not  ac- 
cepted the  disseisor  as  tenant.  If  however  before  the  death 
of  the  disseisee  the  disseisor  made  a  feoffment  in  fee,  or  died 
seised  leaving  an  heir,  there  was  no  escheat  at  all,  '  because 
the  lord  had  a  tenant  in  by  title ; '  he  had,  that  is,  a  tenant 


68.     M  AIT  LAND:  MYSTERY  OF  SEISIN     599 

who  could  not  personally  be  charged  with  any  tort.  Of  a 
right  of  action,  as  distinguished  from  a  right  of  entry,  there 
was  no  escheat ;  '  such  right  for  which  the  party  had  no 
remedy  but  by  action  only  to  recover  the  land  is  a  thing 
which  consists  only  in  privity,  and  which  cannot  escheat 
nor  be  forfeited  by  the  common  law.' l  What  is  more,  it  had 
been  held  that  the  most  sweeping  general  words  in  acts  of 
attainder  would  not  transfer  such  rights  to  the  crown ;  they 
were  essentially  inalienable,  intransmissible  rights. 

But  if  we  go  behind  Coke  we  find  that  so  far  from  the  law 
having  been  gradually  altered  to  the  detriment  of  the  lords, 
if  altered  at  all  it  had  been  altered  to  their  profit.  We  come 
to  a  time  when  there  seems  the  greatest  uncertainty  whether 
the  lord  can  get  the  land  from  the  very  disseisor.  The  writ 
of  escheat,  his  only  writ,  distinctly  says  that  his  tenant  has 
died  seised.  I  do  not  wish  to  dogmatize  about  a  very  obscure 
history,  but  it  will  be  enough  to  say  that  under  Henry  VII 
Brian  C.  J.  denied  that  the  lord  could  enter  or  bring  action 
against  the  disseisor.2 

It  was  so  with  the  other  feudal  casualties.  Coke  says  3 
that  if  the  disseisee  die  having  still  a  right  of  entry  and  leave 
an  heir  within  age  the  lord  shall  have  a  wardship.  Doubt- 
less the  law  was  so  in  his  day,  but  the  earliest  authority 
that  he  cites  is  from  the  reign  of  Edward  III  and  to  this 
effect  — '  In  a  writ  of  ward  it  is  a  good  plea  that  the  an- 
cestor of  the  infant  had  nothing  in  the  land  at  the  time  of 
his  death;  for  if  he  was  disseised  the  lord  shall  not  have  a 
wardship,  neither  by  writ  of  ward  nor  by  seizing  him  [the 

1  Winchester's  Case,  3  Rep.  2  b. 

2  It  may  be  convenient  if  I  here  collect  in  chronological  order  the 
main  authorities  as  to  escheat  and  forfeiture  of  rights  of  entry   and 
rights  of  action.     Reg.  Brev.  f.  164   (F.  N.  B.  f.  144);  27  Ass.  pi.  32. 
f.  136,  137;  Fitz.  Abr.  Entre  Congeable,  pi.  38  (Hil.  2.  Ric.  2);  2  Hen. 
4.  f.  8.  (Mich.  pi.  37)  ;  7  Hen.  4.  f.  17  (Trin.  pi.  10)  ;  32  Hen.  6.  f.  2T 
(Hil.  pi.  16),  comp.  Litt.  sec.  390;  37  Hen.  6.  f.  1    (Mich.  pi.  1);  15 
Edw.  4.  f.  14   (Mich.  pi.  17),  per  Brian;  6  Hen.  7.  f.  9   (Mich.  pi.  4); 
10  Hen.  7.  f.  27  (Trin.  pi.  13)  ;  13  Hen.  7.  f.  7  (Mich.  pi.  3)  ;  Bro.  Abr. 
Eschete,  pi.  18;  Co.  Lit.  240  a,  268  a,  b;  3  Inst.  19;  3  Rep.  2,  3,  35  a; 
8  Rep.  42  b;  Hale,  P.  C.  Part  I,  ch.  23;  Hawk,  P.  C.  Bk.  2,  ch.  49,  sec. 
5:  Burgess  v.  Wheate,  Eden,  177,  243.     It  will  be  noticed  that  none  of 
these  authorities,  except  perhaps  the  writ  in  the  Register,  is  older  than 
the  middle  of  the  fourteenth  century. 

8 3  Rep.  35  a;  Co.  Lit.  76  b. 


^00  VIII.     PROPERTY   (IN  GENERAL) 

heir],  until  the  tenancy  is  recontinued.' l     But  at  all  events     \ 
of  a  right  of  action  there  was  no  wardship.     On  the  other       \ 
hand,  if  the  disseisor  died  without  an  heir  the  lord  got  an     / 
escheat,  if  the  disseisor  died  leaving  an  infant  heir  the  lord     V. 
got  a  wardship,  though  in  either  case  his  rights  were  defeas- 
ible by  the  disseisee.    In  short,  the  lord  must  take  his  chance ;     / 
it  is  no  wrong  to  him  if  his  tenant  be  disseised;    he  cannot     V 
prevent  this  person  or  that  from  acquiring  seisin,  yet  thus     J 
he  may  be  a  great  loser  or  a  great  gainer.     The  law  about,/ 
seisin  pays  no  regard  to  his  interests. 

There  is  another  side  to  the  picture  we  have  here  drawn. 
(He  who  is  seised,  though  he  has  no  title  to  the  seisin,  can 
alienate  the  land ;  he  can  make  a  f eoffment  and  he  can  make 
a  will  (for  he  who  has  land  is  enabled  to  devise  it  by  statute), 
and  his  heir  shall  inherit,  shall  inherit  from  him,  for  he  is  a 
stock  of  descent ;  and  there  shall  be  dower  and  there  shall  be 
curtesy,  and  the  lord  shall  have  an  escheat  and  the  king  a 
forfeiture,  for  such  a  one  has  land  '  to  give  and  to  forfeit.' 
This  may  make  seisin  look  very  much  like  ownership,  and  in 
truth  our  old  law  seems  this  (and  has  it  ever  been 
changed ?  2 )  that  ggi«i™  A™>^  gJYf  ^wnership  good_a_gainst 
all  save  those  who  havejbetter  because  oldflr  ti*-k- — •  Never- 
theless we  err  if  we  begin  to  think  of  seisin  as  ownership  or 
any  modification  of  ownership ;  after  all  it  is  but  possession. 
A  termor  was  not  seised,  but  certainly  he  could  make  a  feoff- 
ment  in  fee  and  his  feoffee  would  be  seised.  This  seems  to 
have  puzzled  Lord  Mansfield,3  and  puzzling  enough  it  is  if 
we  regard  seisin  itself  as  a  proprietary-right,  for  then  the 
termor  seems  to  convey  to  another  a  right  that  he  never 
had.  But  when  it  is  remembered  that  substantially  seisin 
is  possession,  no  more,  no  less,  then  the  old  law  becomes  ex- 
plicable. My  butler  has  not  possession  of  my  plate,  he  has 
but  a  charge  or  custody  of  it;  fraudulently  he  sells  it  to  a 

JFitz.  Abr.  Garde,  pi.  10. 

2  See  Asher  v.  Whitlock,  L.  R.  1  Q.  B.  1.  Holmes,  Common  Law, 
p.  244. 

8 1  refer  of  course  to  Taylor  v.  Horde,  1  Burr.  60,  a  case  which  pro- 
foundly dissatisfied  the  great  conveyancers  of  the  last  century,  and 
which  has  lately  put  Mr.  Challis  to  his  Greek  (Real  Property,  p.  329). 
Butler's  note  on  this  case  (Co.  Lit.  330  b)  seems  to  me  the  best  mod- 
ern account  of  seisin  that  we  have. 


68.     MAITLAND:  MYSTERY  OF  SEISIN     601 

silversmith;  the  silversmith  now  has  possession:  so  with  the 
termor,  who  has  no  seisin,  but  who  by  a  wrongful  act  enables 
another  to  acquire  seisin. 

But,  it  will  be  urged,  the  termer's  feoffee  (here  is  the 
difficulty)  acquires  an  estate  in  fee  simple  and  no  less  estate 
or  interest.  Certainly,  and  what  of  the  silversmith  who  buys 
of  the  fraudulent  butler?  He  has  possession,  and  in  a  cer* 
tain  sense  he  possesses  as  owner;  he  claims  no  limited  inter- 
est, such  as  that  of  a  bailee,  in  the  goods.  How  his  rights 
would  best  be  described  at  the  present  day  we  need  not  dis- 
cuss, but  it  seems  plausible  to  say  that  at  least  if  an  inno- 
cent purchaser,  he  has  ownership  good  against  all  save 
those  who  have  better  because  older  title.1  Regarded  from 
this  point  of  view  the  termor's  tortious  feoffment  is  no 
anomaly.  It  is  true  that  in  our  modern  law  there_JHay  be 
nothing  very  analogous  to  the  process  whereby  an  infirm 
title  gained  strength  as  it  passed  from  man  to  man,  the 
ousted  owner  losing  the  right  to  enter  before  he  lost  the  right 
of  action ;  still  it  is  conceivable  that  in  the  interests  of  public 
peace  law  should,  for  example,  permit  me  to  take  my  goods 
by  force  from  the  thief  himself,  but  not  from  one  to  whom 
the  thief  has  given  or  sold  them,  nor  from  the  thief's  executor. 
Thus  would  my  entry  be  tolled  and  I  should  be  put  to  my 
action.2 

But  this  by  the  way,  for  the  position  of  the  non-possessed 
owner  is  more  interesting  and  less  explicable  than  that  of  the 
possessed  non-owner.  Now  we  seem  brought  to  this,  that 
ownership,  mere  ownership,  is  inalienable,  intransmissible; 
neither  by  act  of  the  party  nor  by  act  of  the  law  will  it  pass 
from  one  man  to  another.  The  true  explanation  of  the  fore- 
going rules  will  I  believe  be  found  in  no  considerations  of 
public  policy,  no  wide  views  of  social  needs,  but  in  what  I 

1  Holmes,  Common  Law,  p.  241. 

9 Coke  (Co.  Lit.  245  b)  says  that  'by  the  ancient  law'  the  entry 
of  the  disseisee  was  tolled  not  only  by  a  descent  cast,  but  by  the  dis- 
seisor's  feoffment  followed  by  non-claim  for  year  and  day.  There  was 
very  similar  law  both  in  France  and  in  Germany,  as  may  be  seen  at 
large  in  Laband,  Die  Vermogensrechtlichen  Klagen,  and  Heusler,  Die 
Oewere.  I  have  never  been  able  to  find  definite  authority  for  Coke's 
statement,  but  it  looks  to  me  very  probable.  It  deprives  the  descent 
cast  of  its  isolated  singularity,  and  fits  in  with  the  learning  of  fines. 


602  VIII.     PROPERTY   (IN  GENERAL) 

shall  venture  to  describe  as  a  mental  incapacity,  an  inability 
to  conceive  that  mere  rights  can  be  transferred  or  can  pass 
from  person  to  person.  Things  can  be  transferred ;  that  is 
obvious ;  the  transfer  is  visible  to  the  eye ;  but  how  rights  ? 
you  have  not  your  rights  in  your  hand  or  your  pocket,  nor 
can  you  put  them  into  the  hand  of  another  nor  lead  him  into 
them  and  bid  him  walk  about  within  their  metes  and  bounds. 
*  But,'  says  the  accomplished  jurist,  '  this  is  plain  non- 
sense; when  a  gift  is  made  of  a  corporeal  thing,  of  a  sword 
or  a  hide  of  land,  rights  are  transferred;  if  at  the  same 
time  there  is  a  change  of  possession,  that  is  another  matter ; 
whether  a  gift  can  be  made  without  such  a  change  of  posses- 
sion, the  law  of  the  land  will  decide ;  but  every  gift  is  a 
transfer  of  ownership,  and  ownership  is  a  right  or  bundle 
of  rights ;'  if  gift  be  possible,  transfer  of  rights  is  possi- 
ble.' That,  I  should  reply,  doubtless  is  so  in  these  analytic 
times ;  but  I  may  have  here  and  there  a  reader  who  can  re- 
member to  have  experienced  in  his  own  person  what  I  take  to 
be  the  history  of  the  race,  who  can  remember  how  it  flashed 
across  him  as  a  truth,  new  though  obvious,  that  the  essence 
of  a  gift  is  a  transfer  of  rights.  You  cannot  give  what  you 
have  not  got:  —  this  seems  clear;  but  put  just  the  right 
accent  on  the  words  give  and  got,  and  we  have  reverted  to  an 
old  way  of  thinking.  You  can't  give  a  thing  if  you  haven't 
got  that  thing,  and  you  haven't  got  that  thing  if  some  one 
else  has  got  it.  A  very  large  part  of  the  history  of  Real 
Property  Law  seems  to  me  the  history  of  the  process  whereby 
Englishmen  have  thought  themselves  free  of  that  material- 
ism which  is  natural  to  us  all. 

But  it  will  be  said  to  me  that  this  would-be  explanation 
is  untrue,  or  at  best  must  take  us  back  to  a  merely  hypotheti- 
cal age  of  darkness,  because  from  time  immemorial  there 
were  rights  which  could  be  transferred  from  man  to  man 
without  any  physical  transfer  of  things,  namely,  '  the  in- 
corporeal hereditaments  which  lay  in  grant  and  not  in 
livery.'  In  truth  however  the  treatment  which  these  rights 
receive  in  our  oldest  books  is  the  very  stronghold  of  the 
doctrine  that  I  am  propounding.  They  are  transferable 
just  because  they  are  regarded  not  as  rights  but  as  things, 


68.     MAITLAND:  MYSTERY  OF  SEISIN     603 

because  one  can  become  not  merely  entitled  to,  but  also 
seised  and  possessed  of  them,  corporeally  seised  and  pos- 
sessed. Seisin,  it  may  be,  cannot  be  delivered;  I  cannot 
put  an  advowson  into  your  hand,  nor  can  an  advowson  be 
ploughed  and  reaped ;  nevertheless  the  gift  of  the  advowson 
will  be  far  from  perfect  until  you  have  presented  a  clerk  who 
has  been  admitted  to  the  church.  In  your  writ  of  right  of 
advowson  you  shall  count  that  on  the  presentation  of  your- 
self or  your  ancestor  a  clerk  was  admitted,  nay  more,  that 
your  clerk  exploited  the  church,  took  esplees  thereof  in 
tithes,  oblations  and  obventions  to  the  value  of  so  many 
shillings.1  But  we  may  look  at  a  few  of  these  things  incor- 
poreal a  little  more  closely. 

And  first  then  of  seignories,  reversions,  remainders. 
These,  it  is  said,  lie  in  grant.  But  for  all  that  the  tenant 
of  the  land  must  attorn  to  the  grantee;  the  attornment  is 
necessary  to  perfect  the  transfer  of  the  right.  Such  was 
the  law  in  1705.2  Whence  this  necessity  for  an  attornment? 
It  may  be  replied :  —  Here  at  all  events  is  a  feudal  rule. 
Just  as  (before  the  beginning  of  clear  history)  the  tenant 
could  not  alienate  the  land  without  the  lord's  consent,  so  in 
the  reign  of  Queen  Anne  the  lord  could  not  alienate  the 
seignory  without  the  tenant's  attornment.  There  was  a 
personal  bond  between  lord  and  vassal;  the  need  of  attorn- 
ment is  to  start  with  the  need  of  the  tenant's  consent,  though 
certainly  in  course  of  time  he  could  be  compelled  to  give 
that  consent. 

Now  it  may  not  be  denied  that  in  this  region  feudal  influ- 
ence was  at  work.  To  deny  this  one  must  contradict  Brae- 
ton.  But  the  sufficiency  of  the  explanation  should  not  be 
admitted  until  some  text  of  English  law  is  produced  which 
says  that  the  tenant  can  as  a  general  rule  refuse  consent  to 

*Capiendo  inde  expleta;  this  phrase  conveys  a  sense  of  manifest 
and  successful  achievement.  When  the  possessor  takes  a  crop  from  his 
land,  he  achieves,  exploits  his  seisin;  his  seisin  is  now  explicit.  See 
Skeat,  s.  v.  explicit,  exploit.  There  is  a  great  mass  of  information  in 
Ducange,  s.  v.  expletum.  Coke,  6  Rep.  58,  gives  almost  the  true  mean- 
ing, though  his  etymology  is  at  fault;  he  derives  the  word  from  expleo 
(instead  of  explico)  and  says  that  tha  grantee  of  a  rent  hath  not  a 
perfect  and  explete  or  complete  estate  until  he  hath  reaped  the  es- 
plees, scilicet  the  profit  and  commodity  thereof. 

2  4  &  5  Ann.  c.  16.  sec.  9. 


604  VIII.     PROPERTY   (IN  GENERAL) 

an  alienation.  Br acton  does  say  that  except  in  exceptional 
cases  there  can  be  no  transfer  of  homage  unless  the  tenant 
consents ;  on  the  other  hand  he  says  that  all  other  services 
can  be  transferred  and  the  tenant  shall  be  attorned  velit 
nolit.1  It  is  of  course  possible  to  regard  this  state  of  things 
as  transitional,  to  urge  that  in  Bracton's  day  the  tenant  had 
already  lost  a  veto  on  alienation  that  he  once  had;  but  be- 
fore we  adopt  this  theory  let  us  see  how  much  less  ground 
it  covers  than  the  rules  which  have  to  be  explained. 

(a)  The  doctrine  of  attornment  holds  good  not  only  of  a 
seignory  and  of  a  reversion  but  of  a  remainder  also ; 2  but 
between  the  remainderman  and  the  tenant  of  the  particular 
estate  there  is  no  tenure,  no  feudal  bond. 

(b)  Much  the  same  doctrine  holds  good  when  what  has  to 
be  conveyed  is  the  land  itself  (immediate  freehold)  but  that 
land  is  in  lease  for  years.     Here  the  transfer  can  be  made  in 
one  of  two  ways.     There  may  be  a  grant  and  then  attorn- 
ment will  be  necessary,3  or  there  may  be  a  feoffment.     But  if 
there  is  to  be  a  feoffment,  either  the  termor  must  be  a  con- 
senting party   or  he  must  be   out   of  possession.4   •  If  the 
termor  chooses  to  sit  upon  the  land  and  say  '  I  will  not  go  off 
and  I  will  not  attorn  myself,'  there  can  be  no  effectual  grant, 
no  effectual  feoffment;    recourse  must  be  had  to  a  court  of 
law.     But  surely  it  will  not  be  said  that  in  the  days  of  true 
feudalism,  when,  as  we  are  told,  the  termor  was  regarded 
much  as  his  landlord's  servant,  he  had  a  legal  right  to  pre- 
vent his  landlord  from  selling  the  land? 

(c)  The  doctrine  of  attornment  holds  good  of  rents  not 
incident  to  tenure.5     The  terre-tenant  will  not  hold  of  the 
grantee  of  the  rent,  nevertheless  he  must  attorn  if  the  grant 
is  to  have  full  efficacy.     Indeed  the  learning  of  rents  as  it  is 
in  Coke,6  and  even  as  it  is  at  the  present  day,  seems  to  me 
very  suggestive  of  an  ancient  mode  of  thought.     The  rent 
is  regarded  as  a  thing,  and  as  a  thing  which  has  a  certain 

1  Bract,  f.  81  b,  82.     The  writs  for  compelling  attornment  are  the 
Quid  juris  clamat  and  the  Per  quae  servitia. 
•Co.  Lit.  309  a;  Lit.  sec.  569. 
8  Lit.  sec.  567. 

4 Co.  Lit.  48  b;  Bettisworth's  Case,  2  Rep.  31,  32. 
5  Co.  Lit.  311  b. 
*  Bredimari 's  Case,  6  Rep.  56  b. 


68.     MAITLAND:  MYSTERY  OF  SEISIN     605 

corporeity  (if  I  may  so  speak)  ;  you  may  be  seised,  phys- 
ically possessed  of  it;  you  have  no  actual  seisin  until  you 
have  coins,  tangible  coins,  in  your  hand.  On  getting  this 
actual  seisin  much  depended;  in  modern  times  a  vote  for 
Parliament.1  An  attornment  would  give  you  a  fictitious 
4  seisin  in  law ; '  nothing  but  hard  palpable  cash  would  give 
you  seisin  in  fact.  Such  an  incorporeal  hereditament  as  a 
rent  can  be  given  by  man  to  man  just  because  it  occasion- 
ally becomes  corporeal  under  the  accidents  of  gold  or  silver; 
this  seems  the  old  theory. 

Now  as  to  attornment,  a  valuable  analogy  lies  very  near  to 
our  hands.  Suppose  that  we  shut  Coke  upon  Littleton  and 
open  Benjamin  on  Sales.  Describing  what  will  be  deemed 
an  *  actual  receipt '  of  sold  goods  within  the  meaning  of  the 
Statute  of  Frauds,  Mr.  Benjamin  writes  thus:  —  'When 
the  goods,  at  the  time  of  the  sale,  are  in  the  possession  of 
a  third  person,  an  actual  receipt  takes  place  when  the  vendor, 
the  purchaser,  and  the  third  person  agree  together  that  the 
latter  shall  cease  to  hold  the  goods  for  the  vendor  and  shall 
hold  them  for  the  purchaser.  ...  All  of  the  parties  must 
join  in  the  agreement,  for  the  agent  of  the  vendor  cannot 
be  converted  into  an  agent  for  the  vendee  without  his  own 
knowledge  and  consent.'  2  This  is  familiar  law,  and  surely 
it  explains  much.  Baron  Parke  used  a  very  happy  phrase 
when  he  said  that  there  is  no  '  actual  receipt '  by  the  buyer 
'  until  the  bailee  has  attorned,  so  to  speak  '  to  the  buyer,  a 
happy  phrase  for  it  explained  the  obscure  by  the  intelligible, 
the  old  by  the  modern.3 

Without  transfer  of  a  thing  there  is  no  transfer  of  a 
right. 

Starting  with  this  in  our  minds,  how,  let  us  ask,  can  a 
reversioner  alienate  his  rights  when  a  tenant  for  life  is 
seised,  how  can  a  tenant  in  fee  simple  alienate  his  rights 

*Orme's  Case,  L.  R.,  8  C.  P.  281;  Hadfield's  Case,  ibid.  306.  The 
last  Reform  Act  (48  Viet.  c.  3,  sec.  4)  has,  one  regrets  to  say,  made 
it  improbable  that  we  shall  have  in  the  future  similar  displays  of  an- 
tique learning. 

2  Benjamin,  Sales,  2nd  ed.,  p.  132. 

8  Farina  v.  Home,  16  M.  &  W.  119.  I  believe  that  it  was  Parke,  B. 
who  first  introduced  the  term  *  attornment '  into  the  discussion  of  cases 
concerning  the  sale  of  goods;  but  in  this  I  may  be  wrong. 


606  VIII.     PROPERTY   (IN  GENERAL) 

when  there  is  a  termor  on  the  land?  There  is  but  one  answer. 
The  person  who  has  the  thing  in  his  power  must  acknowledge 
that  he  holds  for  or  under  the  purchaser.  If  he  does  this, 
then  we  may  say  (as  we  do  say  when  construing  the  Statute 
of  Frauds)  that  the  purchaser  has  '  actually  received  '  the 
thing  in  question.  It  is  I  admit  difficult  to  carry  this  or  any 
other  theory  through  all  the  intricacies  of  our  old  land  law. 
The  fact  that  in  course  of  time  there  came  to  be  two  legally 
recognized  possessions,  first  the  old-fashioned  possession  or 
seisin  which  no  termor  can  have  (possessio  ad  assisas),  and 
then  the  new  fashioned  possession  which  a  termor  can  have 
(possessio  ad  breve  de  trans gressione),  complicates  what, 
to  start  with,  may  have  been  a  simple  notion.1  But  the  clue 
is  given  us  in  some  words  of  Britton :  —  tenant  in  fee  wants 
to  alienate  his  land,  but  there  is  a  farmer  in  possession ; 
until  the  farmer  attorns  there  can  be  no  conveyance,  car  la 
seisine  del  alienour  sei  continue  touz  juirs  par  le  fermer, 
qui  use  sa  seisine  en  le  noun  le  lessour;  2  the  seisin  is  held  for 
the  alienor  until  the  farmer  consents  to  hold  it  for  the  alienee. 
So  when  the  person  on  the  land  is  tenant  in  fee  simple,  here 
doubtless  he  is  seised  on  his  own  behalf,  seised  in  demesne, 
but  the  overlord  also  is  seised,  seised  of  a  seignory,  or,  as  the 
older  books  put  it,  he  holds  the  land  in  service  (non  in  domir 
nico  sed  in  servicio)  ;  he  holds  the  land  by  the  body  of  his 
tenant ;  he  can  only  transfer  his  rights  if  he  can  transfer 
seisin  of  the  seignory;  he  transfers  seisin  when  the  tenant 
admits  that  he  is  holding  under  a  new  lord.3  So  with  a  rent 
wh^ch  6  issues  out  of  the  land ; '  we  cannot  make  a  rent  issue 
out  of  land,  or  turn  the  course  of  a  rent  already  issuing, 
unless  we  can  get  at  the  land ;  if  some  one  else  has  possession 
of  the  land,  it  is  he  that  has  the  power  to  start  or  to  divert 
the  rent.  This  phrase  *  a  rent  issuing  out  of  land '  would 

1 1  have  framed  my  Latin  phrases  on  the  model  of  Savigny's  posses* 
sio  ad  interdicta.  Seisin,  we  may  say,  is  '  assize-possession.' 

2  Britton,  vol.  2,  p.  303. 

8 1  am  not  sure  that  it  was  ever  technically  correct  to  say  that  the 
overlord  is  seised  of  the  land;  but  in  thirteenth  century  cases,  he  cer- 
tainly has  and  holds  the  land,  he  has  and  holds  it  not  in  demesne,  but 
in  service.  See  Br.  f.  432,  433.  I  have  seen  many  cases  to  this  effect; 
and  I  have  seen  nunquam  aliquant  seisinam  habuit  nee  in  dominico  nee 
in  servicie. 


68.     M AIT  LAND:  MYSTERY  OF  SEISIN     607 

seem  to  us  very  wonderful  and  very  instructive,  had  we  not 
heard  it  so  often.  What  a  curious  materialism  it  implies ! 

Bracton's  whole  treatment  of  res  incorporates  shows  the 
same  materialism,  which  is  all  the  more  striking  because  it 
is  expressed  in  Roman  terms  and  the  writer  intends  to  be  very 
analytic  and  reasonable.  Jura  are  incorporeal,  not  to  be 
seen  or  touched,  therefore  there  can  be  no  delivery  (traditio) 
of  them.  A  gift  of  them,  if  it  is  to  be  made  at  all,  must  be 
a  gift  without  delivery.  But  this  is  possible  only  by  fiction 
of  law.  The  law  will  feign  that  the  donee  possesses  so  soon 
as  the  gift  is  made  and  although  he  has  not  yet  made  use 
of  the  transferred  right.  Only  however  when  he  has  actually 
used  the  right  does  his  possessio  cease  to  be  ftctiva  and  be- 
come vera,  and  then  and  then  only  does  the  transferred  right 
become  once  more  alienable.1 

Of  all  these  incorporeal  things  by  far  the  most  important 
in  Bracton's  day  and  long  afterwards  was  the  advowson  in 
gross,  and  happily  he  twice  over  gives  us  his  learning  as  to 
its  alienability  with  abundant  vouching  of  cases.2  To  be 
brief :  —  If  A  seised  of  an  advowson  grants  it  to  J5,  and  then 
the  church  falls  vacant,  B  is  entitled  to  present.  Thus  far 
have  advowsons  become  detached  from  land.  But  if  before 
a  vacancy  B  grants  to  C,  and  then  the  parson  dies,  who 
shall  present?  Not  C,  nor  B,  but  A.  Not  C,  for  though  B 
had  a  quasi-possession  when  he  made  the  grant  he  had  no 
real  possession,  for  he  had  never  used  the  transferred,  or 
partially  transferred,  right ;  he  had  nothing  to  give ;  he  had 
nothing.  Not  B,  for  whatever  inchoate  right  he  had  he  has 
given  away.  No,  as  before  said,  A  shall  present,  for  the 
only  actual  seisin  is  with  him.  One  has  not  really  got  an 
advowson  until  one  has  presented  a  clerk  and  so  exploited 
one's  right. 

We  may  take  up  the  learning  of  advowsons  some  centuries 
later.  The  following  comes  from  a  judgment  not  unknown 
to  fame,  the  judgment  of  Holt  in  Askby  v.  White.  3  He  is 
illustrating  the  doctrine  that  want  of  remedy  and  want  of 

*Bracton,  f.  52  b. 

'.Bracton,  f.  54,  55,  246.  •  See  Nichols,  Britton,  vol.  2,  p.  185,  note  f. 

8Ld.  Raym.  938,  953. 


608  VIII.     PROPERTY   (IN  GENERAL) 

right  are  all  one.  '  As  if  a  purchaser  of  an  advowson  in  fee 
simple,  before  any  presentment,  suffer  an  usurpation  and 
six  months  to  pass  without  bringing  his  quare  impedit  he  has 
lost  his  right  to  the  advowson,  because  he  has  lost  his  quare 
impedit  which  was  his  only  remedy ;  for  he  could  not  main- 
tain a  writ  of  right  of  advowson ;  and  although  he  after- 
wards usurp  and  die  and  the  advowson  descend  to  his  heir, 
yet  the  heir  cannot  be  remitted,  but  the  advowson  is  lost  for 
ever  without  recovery.'  So,  as  I  understand,  stood  the  law 
before  the  statute  7  Ann.  c.  18.  It  comes  to  this,  that  if 
the  grantee  who  has  never  presented  suffers  a  usurpation, 
and  does  not  at  once  use  a  special  statutory  remedy, l  his 
right,  his  feeble  right,  has  perished  for  ever.  Writ  of  right 
he  can  have  none,  for  he  cannot  count  on  an  actual  seisin. 
Very  precarious  indeed  at  Common  Law  was  the  right  of  the 
grantee  who  had  not  yet  acquired  what  could  be  regarded  as 
a  physical  corporeal  possession  of  a  thing.  Indeed  when  we 
say  that  these  rights  lay  in  grant  we  use  a  phrase  technically 
correct,  but  very  likely  to  mislead  a  modern  reader. 

Space  is  failing  or  I  would  speak  of  franchises,  for  even 
to  negative  franchises,  such  as  the  right  to  be  quit  of  toll, 
does  Bracton  apply  the  notion  of  seisin  or  possession;  and 
the  more  the  history  of  the  incorporeal  hereditaments  is  ex- 
plored, the  plainer  will  it  be  that  according  to  ancient  ideas 
they  cannot  be  effectually  passed  from  person  to  person  by 
written  words :  there  is  seisin  of  them,  possession  of  them, 
no  complete  conveyance  of  them  without  a  transfer  of  pos- 
session, which,  when  it  is  not  real  must  be  supplied  by  fic- 
tion. But  now  if  we  put  together  all  the  old  rules  to  which 
reference  has  here  been  made  (and  I  will  ask  my  readers 
to  fill  with  their  learning  the  many  gaps  in  this  brief  argu- 
ment), does  it  not  seem  that  these  *  very  odd  notions  '  of  our 
ancestors,  which  Sir  James  Mansfield  ascribed  to  '  particular 
causes,'  were  in  the  main  due  to  one  general  cause?  They 
point  to  a  time  when  things  were  transferable  and  rights 
were  not.  Obviously  things  are  transferable,  but  how 
rights  ? 

*Stat.  Westm.  the  Second  (13  Edw.  I),  c.  5.  The  law  is  clearly 
stated  by  Blackstone,  vol.  3,  p.  243. 


68.     M  AIT  LAND:  MYSTERY  OF  SEISIN     609 

And  here  let  us  remember  the  memorable  fact  that  the 
chose  in  action  became  assignable  but  the  other  day.  The 
inalienability  of  the  benefit  of  a  contract,  like  the  inalienabil- 
ity of  the  rights  of  the  disseised  owner,  has  been  set  down  to 
that  useful,  hard-worked  6  particular  cause,'  the  prodigious 
jealousy  of  maintenance.  The  explanation  has  not  stood 
examination  in  the  one  case,1  I  doubt  it  will  stand  examina- 
tion in  the  other.  According  to  old  classifications  the  bene- 
fit of  a  contract  and  the  right  to  recover  land  by  litigation, 
stand  very  near  each  other.  The  land-owner  whose  estate 
has  been  6  turned  to  a  right  '  (a  significant  phrase)  has  a 
thing  in  action,  a  thing  in  action  real.  There  is  a  contrast 
more  ancient  than  that  between  jus  in  rem  and  jus  in  per- 
sonam,  namely,  that  between  right  and  thing.  Of  mainte- 
nance there  is,  I  believe,  no  word  in  Bracton's  book,  but  that 
there  can  be  no  donatio  without  traditio  is  for  him  a  rule 
so  obvious,  so  natural,  that  it  needs  no  explanation,  though 
it  may  be  amply  illustrated  by  cases  on  the  rolls.  What  the 
thirteenth  century  learned  of  Roman  law  may  have  hardened 
and  sharpened  the  rule,  but  it  seems  ingrained  in  the  inner- 
most structure  of  our  law. 

I  am  far  from  saying  that  within  the  few  centuries  cov- 
ered by  our  English  books  it  has  ever  been  strictly  incon- 
ceivable that  a  right  should  be  transferred  without  some 
transfer  of  a  thing,  or  without  some  physical  fact  which 
could  be  pictured  as  the  use  of  a  transferred  incorporeal 
thing.  Should  it  even  be  proved  that  the  Anglo-Saxon  char- 
ter or  '  book '  passed  ownership  without  any  transfer  of 
possession,  this  will  indeed  be  a  remarkable  fact,  but  far  from 
decisive,  particularly  if  the  proof  consist  of  royal  grants. 
The  king  in  council  may  have  been  able  to  do  many  mar- 
vellous feats  not  to  be  done  by  common  men,  and  we  know 
that  ages  before  the  year  1875  the  king  could  assign  his 
chose  in  action.  But  old  impotencies  of  mind  give  rise  to 
rules  which  perdure  long  after  they  have  ceased  to  be  the 
only  conceivable  rules,  and  then  new  justifications  have  to  be 
found  for  the  wisdom  of  the  ancients,  here  feudalism,  there 
a  dread  of  maintenance,  and  there  again  a  hatred  of  simony. 

1  Pollock,  Principles  of  Contract,  4th  ed.,  Appendix,  Note  G. 


610  VIII.     PROPERTY   (IN  GENERAL) 

So  long  as  the  rules  are  unrepealed  this  rationalizing  process 
must  continue;  judges  and  text-writers  find  themselves  com- 
pelled to  work  these  archaisms  into  the  system  of  practical 
intelligible  law.  Only  when  the  rules  are  repealed,  when  we 
can  put  them  all  together  and  look  at  them  from  a  little 
distance,  do  they  begin  to  tell  their  true  history.  I  have 
here  set  down  what  seems  to  me  the  main  theme  of  that  his- 
tory. For  this  purpose  it  has  been  necessary  to  speak  very 
briefly  and  superficially  of  many  different  topics,  about  every 
one  of  which  we  have  a  vast  store  of  detailed  and  intricate 
information.  Before  any  theory  such  as  that  here  ventured 
can  demand  acceptance,  it  must  be  stringently  tested  at 
every  point  and  other  systems  of  law  besides  the  English 
should  be  considered.  But  it  seemed  worth  while  to  draw 
notice  to  many  old  rules  of  law  which  we  do  not  usually  con- 
nect together,  and  to  suggest  that  they  help  to  explain  each 
other  and  are  in  the  main  the  outcome  of  one  general  cause.1 

1  There  is  one  rule  of  our  present  Common  Law  which,  were  it  very 
old,  would  make  much  against  what  I  have  said,  the  rule,  namely,  that 
the  ownership  of  movables  can  be  transferred  by  mere  agreement,  by 
bargain  and  sale  without  delivery.  I  have  not  forgotten  this,  but  it 
seemed  impossible  to  discuss  in  a  paper  already  too  miscellaneous  a 
question  which  has  divided  two  masters  of  the  Year  Books.  Serjeant 
Manning  has  maintained  that  the  rule  is  quite  modern.  Lord  Black- 
burn, on  the  other  hand,  has  found  it  in  the  books  of  Edward  the 
Fourth.  He  was  not  concerned,  however,  to  trace  it  any  further,  and 
it  seems  to  me  that  the  law  of  an  earlier  time  required  a  change  of 
possession  on  the  one  side  or  the  other,  delivery  or  part-delivery  of 
the  goods,  payment  or  part-payment  of  the  price.  Perhaps  at  some 
future  time  I  may  be  allowed  to  state  what  I  have  been  able  to  find 
about  this  matter.  Since  this  article  was  in  print  examples  (A.  D. 
1305)  of  pleadings  referring  to  the  seisin  of  chattels  have  been  brought 
to  my  notice  by  Mr.  G.  H.  Blakesley:  see  Registrum  Palatinum  Dunel- 
mense  (ed.  Hardy),  vol.  4,  pp.  45,  49,  63,  73. 


69.     THE  HISTORY  OF  THE  ACTION  OF  EJECT- 
MENT IN  ENGLAND  AND  THE  UNITED  STATES1 

BY  ARTHUR  GEORGE  SEDGWICK  2 
AND  FREDERICK   SCOTT  WAIT  3 

§1.  —  The  action  of  ejectment,  the  legal  proceeding  by 
which  the  title  to  land  in  most  of  the  United  States  is  now 
usually  tried,  was  originally  an  action  of  trespass  brought 
by  a  lessee  or  tenant  for  years  to  redress  the  injury  inflicted 
upon  him  by  ouster  or  amotion  of  possession.  The  lessee 
merely  recovered  damages  for  the  loss  of  the  term  and  of 
the  possession,  the  measure  of  these  being  usually  the  mesne 
profits  of  the  land  from  which  he  had  been  evicted.  It  was 
a  purely  personal  action,  in  which  neither  lands  nor  tene- 
ments were  recoverable,  as  opposed  to  a  real  action,  in  which 
a  freehold  interest  in  land  was  recovered  or  possession 
awarded. 

The  remedy  of  ejectment,  as  subserving  the  uses  of  a  real 
action,  in  which  important  character  we  are  about  to  con- 
sider it,  has  been  termed  "  a  modified  action  of  trespass," 

aThis  Essay  forms  part  of  a  "Treatise  on  the  Trial  of  Title  to 
Land,  including  Ejectment,  Trespass  to  Try  Title,  Writs  of  Entry,  and 
Statutory  Remedies  for  the  Recovery  of  Real  Property"  (New  York: 
Baker,  Voorhis,  &  Co.,  1886),  2d  edition,  being  pp.  1-47  of  Chapter  I, 
with  a  few  omissions. 

2  Member  of  the  New  York  Bar.     Harvard  University,  A.  B.   1864, 
LL.  B.  1866;  editor  of  the  American  Law  Review,  1873;  lecturer  on  law, 
Lowell  Institute,  Boston,  1885. 

Other  Publications:  editor  of  the  5th,  7th,  and  8th  editions  of  (his 
father)  T.  S.  Sedgwick's  Treatise  on  the  Measure  of  Damages,  1869- 
1890;  Constitutional  Protection  of  Property  Rights,  1882;  Elements  of 
Damages,  2d  ed.  1909. 

3  Member    of   the    New   York    Bar.      Union    College    (Albany   Law 
School),  LL.  B.  1874;  Secretary  of  Barnard  College  for  Women   (Co- 
lumbia University)  ;  Secretary  of  the  Legislative  Committee  of  the  New 
York  Bar  Association. 

Other  Publications:  Fraudulent  Conveyances  and  Creditors'  Bills,  3d 
ed.  1897;  Insolvent  Corporations,  1888;  and  articles  in  legal  journals 
and  encyclopedias. 


612  VIII.     PROPERTY  (IN  GENERAL) 

but  more  accurately  speaking,  the  change  effected  was  an 
enlargement  of  the  original  remedy  rather  than  a  modifi- 
cation of  it. 

§  2.  —  The  common  law  furnished  an  endless  number  of 
real  writs  to  determine  the  rights  of  property  in,  or  posses- 
sion of,  a  freehold  estate.1  The  highest  technical  skill  and 
learning  were  requisite  to  comprehend  and  define  the  nature 
and  purposes  of  these  various  writs,  the  distinctions  between 
which  were  refined,  abstruse,  and  often  scarcely  perceptible.2 
In  personal  actions,  however,  there  were  never  many  writs 
at  common  law.  This  very  scarcity  made  personal  actions 
attractive  in  early  times,  the  pleader  being  seldom  at  a  loss 
to  know  which  writ  to  choose;  while  in  real  actions  the 
most  experienced  practitioner,  exercising  the  utmost  care, 
frequently  sued  out  a  real  writ  of  the  wrong  degree,  class, 
or  nature,  thereby  rendering  the  proceeding  of  no  avail,  and 
frequently  imperiling  the  demandant's  right  to  the  proper 
writ  or  remedy.  Not  only  were  the  distinctions  between  real 
writs  very  technical,  and  the  selection  of  the  proper  writ  a 
delicate  task,  but  the  proceedings  under  them  were  so  in- 
conveniently long,  tedious,  and  costly,  and  the  resources 
for  delays  so  numerous,  that  the  judgment  when  obtained 
was  often  a  tardy  and  inadequate  remedy.3 

§  3.  —  In  real  actions  the  practice  required  the  demand- 
ant to  set  forth  upon  the  record,  with  the  utmost  exactness 
and  precision  of  statement,  his  legal  title.4  Great  technical 
skill  and  ingenuity  were  requisite  to  select,  frame,  and  adapt 
the  count  to  the  nature  and  circumstances  of  each  particular 
case.  A  variance  of  scarcely  a  hair-breadth  between  the 
writ  and  the  count  (or  pleading),  or  between  the  count  and 

*See  chap.  II. 

2  See  §§3,  5,  6. 

8  See  §  45.    Booth  on  Real  Actions,  p.  159. 

4  Doe  d.  Hodsden  v.  Staple,  2  T.  R.  684,  per  Lord  Kenyon.  See 
Stearns  on  Hiftal  Actions,  p.  149;  Reeves'  Hist.  Eng.  Law  (ed.  1880), 
vol.  4,  p.  241.  Mr.  Reeves  says:  "The  precision  of  the  proceeding  in 
real  actions,  where  the  matter  in  question  was  thoroughly  canvassed  in 
pleading,  and  reduced  to  a  simple  point  before  it  was  trusted  to  a  jury, 
is  thought  to  be  ill  changed  for  the  present  course,  (by  ejectment,) 
where  the  whole  question  is  at  once  sent  in  the  gross  to  trial  upon  the 
general  issue,  without  any  previous  attempt  to  simplify  or  decide  it 
with  less  circuity  and  expense."  Reeves'  Hist.  Eng.  Law,  vol.  4,  p.  241. 


69.     SEDGWICK  #  WAIT:  EJECTMENT     613 

the  evidence,  was  frequently  fatal  to  the  demandant.  Equal 
precision  and  nicety  of  statement  were  required  to  interpose 
a  meritorious  plea,  or  to  defend  or  defeat  the  action ;  while 
the  power  of  amendment  as  understood  and  permitted  in 
modern  times  was  wholly  unknown,  and  even  the  limited 
power  which  the  courts  possessed  was  exercised  with  reluc- 
tance. "  At  common  law,"  says  Baron  Gilbert,  "  there  was 
very  little  room  for  amendments."  * 

§  4.  —  The  Statute  of  8  Henry  VI,  ch.  9,  rendering  more 
effectual  Stat.  15  Rich.  II,  ch.  2,  furnished  a  writ  of  forcible 
entry  to  recover  possession  of  land,2  which  is  one  of  the 
causes  assigned  by  Sir  Matthew  Hale  for  the  scarcity  of 
real  actions,  or  assizes,  in  the  reports  during  the  reigns  of 
Edward  IV,  Richard  III,  and  Henry  VII.3  It  is  the  gen- 
eral belief  that  the  idea  of  giving  ejectment  the  effect  of 
a  real  action  originated  from  the  practice  and  procedure 
under  this  statute  concerning  forcible  entries.  We  may 
observe  that  prior  to  the  use  of  ejectment  by  tenants  for 
years  to  recover  unexpired  terms,  the  technical  learning  as 
to  the  management  of  real  actions  began  to  be  less  known 
and  understood,  and  was  speedily  becoming  a  lost  art. 

§  5.  —  The  same  distinguished  writer  observes,  concern- 
ing the  pleadings  at  this  period  (1422  to  1509),  that  "the 
pleaders,  yea,  and  the  judges  too,  became  somewhat  too  curi- 
ous therein,  so  that  that  art  or  dexterity  of  pleading,  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  simplicity,  and  the  true  use  and  end  thereof,  and 
to  become  a  piece  of  nicety  and  curiosity."'  Much  prolix- 
ity and  repetition  in  pleading,  and  the  miscarriage  of  im- 
portant causes  resulted  by  reason  of  small  mistakes  or  trivial 
refinements  and  subtleties  in  practice.  The  rules  of  plead- 
ing were  so  severe  that  the  action  abated  if  the  same  thing 
was  twice  demanded  in  the  writ ; 5  or  if  by  mistake  too  many 

1  Gilbert's  Hist,  and  Prac.  Common  Pleas,  p.  10T. 

2  See  §  94. 

8  Kale's  Common  Law  (ed.  1794),  p.  301. 
*  Kale's  Common  Law,  p.  301. 

8  Stearns  on  Real  Actions  (3d  ed.),  pp.  86-134;  Booth  on  Real  Ac- 
tions (Am.  ed.,  1808),  p.  2. 


614  VIII.     PROPERTY   (IN  GENERAL) 

demandants  had  been  joined;1  or  if  the  tenant  pleaded  non- 
tenure where  the  demandant  claimed  more  land  than  the 
tenant  was  possessed  of;2  or  if  the  demandant  had  by  mis- 
take declared  on  the  seizin  of  his  father  instead  of  his  grand- 
father.3 Nor  could  the  demandant  abridge  his  demand,4 
though  he  might  enter  a  nolle  prosequi  as  to  a  distinct  part 
of  the  claim.5  The  substantial  merits  or  justice  of  the  cause 
were  frequently  overlooked  or  disregarded  by  the  judges, 
and  the  action  or  defense  wrecked  by  some  frivolous  variance 
or  captious  objection  bearing  no  relation  to  the  merits  of 
the  controversy. 

It  must  be  remembered  that  some  real  actions  "  were  ta 
be  brought  in  a  particular  court;  some  lay  only  between 
particular  persons;  others,  for  and  against  those  only  who 
had  particular  estates,  with  various  other  circumstances 
that  were  requisite  antecedent  to  bringing  the  action."' 
It  was  an  era  of  critical  precision  in  pleading  and  practice, 
substance  being  sacrificed  to  form.  This  is  what  led  Lord 
Mansfield  to  observe  that  the  modern  action  of  ejectment 
was  "  invented  under  the  control  and  power  of  the  court, 
for  the  advancement  of  justice  in  many  respects;  and  to 
force  the  parties  to  go  to  trial  on  the  merits,  without  being 
entangled  in  the  nicety  of  pleadings  on  either  side." 

§  6.  —  Parliament  did  not  interpose  to  reform  these  evils,, 
or  attempt  to  rid  real  actions  of  the  intolerable  abuses 
which  sprang  from  them.  The  duty  devolved  upon  the 
courts  to  correct,  without  legislative  aid,  the  evils  which  they 
had  themselves  created  and  fostered.  Real  writs  became  not 
only  a  source  of  oppression  and  injustice  to  suitors,  but  of 
scandal  and  reproach  to  the  system  of  remedial  law  of  which 
they  formed  a  part.  By  vouching  over,8  demanding  view,a 

1  See  Treat  v.  McMahon,  2  Greenl.  (Me.)  120. 

2  See  Stearns  on  Real  Actions   (2d  ed.),  p.  181   [208]. 
'Ibid,  p.  186  [215]. 

*Com.  D.,  title  Abridgment  A,  2. 
6  Somes  v.  Skinner,  16  Mass.  348,  357. 
•Reeves'  Hist.  Eng.  Law,  vol.  4,  p.  69. 
'Aslin  v.  Parkin,  2  Burr.  665,  668. 

8  Calling  in   a   grantor  who  had  warranted   the  title  to   defend  the 
action. 

9  This   consisted  in  the  issuance  of  a  writ  requiring  the   sheriff  to 
cause  the  tenant  to  have  view  of  the  land  in  dispute,  which  the  demand- 


69.     SEDGWICK  %  WAIT:  EJECTMENT     615 

and  praying  aid,1  a  skilful  practitioner  could  prevent  the 
joinder  of  issue  term  after  term  for  years,  and  the  trial  of 
the  action  was  frequently  delayed  until  one  of  the  parties 
died,  whereupon  the  whole  proceeding  abated,  and  a  new 
writ  became  necessary.2 

§  7.  —  We  can,  therefore,  easily  imagine  with  what 
eagerness  both  court  and  counsel  availed  themselves  of  the 
loophole  which  was  at  length  discovered,  by  means  of  which 
the  questions  ordinarily  raised  in  a  real  action  could  be  ' 
brought  up  and  decided  in  a  personal  action,  and,  at  least 
so  far  as  possession  was  concerned,  the  results  of  a  real  ac- 
tion attained  in  a  simple  action  of  trespass.  By  this  means 
the  title  to  real  estate  was  tried  in  a  proceeding  "  shaped 
and  moulded  by  the  court  in  such  a  manner  as  to  relieve 
it  from  many  of  the  technical  difficulties  which  encumbered 
the  ancient  real  actions."1  The  change  was  probably  too 
radical  and  went  too  far.  While  it  relieved  the  plaintiff  of 
many  embarrassments  it  sent  the  unfortunate  tenant  to  trial 
without  specific  knowledge  of  the  character  of  the  title 
which  was  to  be  proved  against  him. 

§  8.  —  It  is  impossible  to  trace  with  precision,  at  this 
late  day,  the  immediate  circumstances  which  led  to  the  sudden 
abandonment  of  real  writs.  The  reasons  assigned  by  the 
early  writers  are  fragmentary  and  imperfect.  Mr.  Ser- 
geant Adams,  who  wrote  early  in  the  century,  says,4  that 
"  neither  the  causes  which  led  to  this  important  change,  nor 

ant  was  required  to  point  out  to  the  tenant,  indicating  the  metes  and 
bounds. 

1This  was  a  petition  for  help,  as,  for  instance,  calling  in  a  rever- 
sioner  or  other  interested  party,  to  aid  in  the  defense  of  the  writ. 

8  See  Pierce  v.  Jaquith,  48  N.  H.  231. 

•See  Crandall  v.  Gallup,  12  Conn.  366,  371. 

*  Adams  on  Ejectment  (4th  Am.  ed.  1854,  by  Waterman),  p.  10,  *9. 
We  have,  in  writing  this  chapter,  made  use  of  Mr.  Adams*  excellent 
work  on  Ejectment.  This  book  is  the  highest  authority  as  to  the  early 
practice  and  procedure  in  the  remarkable  action  of  which  it  treats,  but 
its  usefulness  has  been  superseded  in  America  by  the  radical  changes 
effected  by  modern  legislation  in  our  system  of  remedial  law,  more  es- 
pecially by  the  abolition  of  the  fictions.  Cole  on  Ejectment  (Sweet, 
London),  appeared  in  1857.  The  learned  author  observes  in  his  preface, 
that  "  the  Common  Law  Procedure  Acts  of  1852  and  1854,  and  the  New 
Rules,  have  rendered  all  previous  Treatises  of  Ejectment  of  little  or 
no  value"  in  England.  Longfield  on  Ejectment,  2d  ed.  Dublin,  1846, 
treats  of  the  remedy  in  the  Superior  Courts  of  Ireland.  These  books 
are  of  very  little  practical  value  in  this  country. 


616  VIII.     PROPERTY   (IN  GENERAL) 

the  principles  upon  which  it  was  founded,  are  recorded  in 
any  of  the  legal  authorities  of  those  times."  All  the  other 
writers  upon  ejectment  are  singularly  silent  upon  the  sub- 
ject. 

The  history  of  procedure  nowhere  presents  a  more  curi- 
ous fact,  than  that  the  owners  of  the  soil  should  have  sud- 
denly relinquished  a  system  of  remedies  which  had  been 
matured  by  the  experience  of  centuries,  and  have  consented 
to  try  titles  to  the  freehold  in  a  personal  action,  originally 
devised  to  protect  the  precarious  estates  of  the  inferior 
tenantry. 

§  9.  —  The  controlling  influence  undoubtedly  was,  as  we 
have  said,  that  the  forms  and  pleadings  in  real  actions  were 
minutely  varied,  according  to  the  source  and  quality  of  the 
demandant's  title,  or  the  nature  of  the  alleged  disseizin,  de- 
forcement, or  injury.  But  this  very  fact  had  been  the  boast 
of  the  early  writers,  who  maintained  that  the  assortment  of 
real  writs  was  so  varied  and  complete  that  a  demandant 
could  suffer  no  injury  and  sustain  no  wrong,  which  there 
was  not  a  real  writ  exactly  suited  to  redress.  Blackstone 
says  that  the  provision,  Westm.  2,  13  Edw.  I,  c.  24,  for 
framing  new  writs,  when  wanted,  was  almost  rendered  need- 
less by  the  very  great  perfection  of  the  ancient  forms. 
"  And,  indeed,"  he  continues,  "  I  know  not  whether  it  is  a 
greater  credit  to  our  laws  to  have  such  a  provision  contained 
in  them,  or  not  to  have  occasion,  or  at  least  very  rarely, 
to  use  it."  1  There  is  no  doubt,  however,  that  this  supposed 
merit  came,  in  process  of  time,  to  be  a  crying  evil. 

§  10.  —  In  ejectment  the  form  of  the  action  was  always 
the  same,  without  regard  to  the  source  or  nature  of  the 
lessor's  title,  or  the  character  of  the  disseizin,  deforcement, 
or  ouster. 

This  dispensed  with  the  delicate  task  of  selecting  a  writ 
exactly  suited  to  the  nature  of  each  particular  case,  and 
the  necessity  of  tracing  or  disclosing  the  demandant's  title, 
or  specifying  the  character  of  the  ouster.  To  fully  under- 
stand the  historical  causes  which  led  to  the  substitution  of 
ejectment  for  real  actions,  the  change  must  be  regarded  as 

*3  Bla.  Com.  p.  184. 


69.     SEDGWICK  #  WAIT:  EJECTMENT     617 

part  of  the  general  struggle  for  supremacy  going  on  at 
about  the  same  period  between  exact  and  general  forms  of 
procedure,  specific  and  general  pleading. 

§  11.  —  In  the  personal  actions  of  trover  and  assumpsit, 
both  of  which  assumed  their  modern  form  about  the  time 
that  ejectments  came  into  common  use,  a  system  of  general 
pleading  prevailed.  This  fact  undoubtedly  had  an  impor- 
tant influence  in  forming  and  popularizing  ejectments. 
Suitors  quickly  discovered  the  advantages  to  a  complainant 
of  a  remedy  which  enabled  him  to  prove  any  title  that  he 
could  produce  at  the  trial,  without  the  dangers  incident  to 
a  variance,  and  which  practically  deprived  the  defendant 
of  the  right  to  vouch  over,  demand  view,  or  pray  aid.1 

§  12.  Ejectione  firmce.  —  The  writ  of  ejectione  firmce 
(probably  modeled  after  ejectione  custodice),  out  of  which 
the  modern  action  of  ejectment  has  gradually  grown  into 
its  present  form,  is  not  of  any  great  antiquity.2  In  this 
action  every  fiction  by  which  questions  of  title  to  land  could 
be  raised  and  decided,  was  encouraged  and  adopted. 

The  Court  of  Common  Pleas  had  exclusive  jurisdiction  of 
real  actions  while  ejectment  could  be  brought  in  all  three 
of  the  great  common  law  courts.  This  fact  contributed  in 
no  slight  degree  to  the  great  favor  with  which  the  fictions 
in  ejectment  were  received  and  encouraged  by  the  judges 
of  the  King's  Bench,  for  that  court  thereby  acquired  juris- 
diction over  real  property  concurrently  with  the  Common 
Pleas.  The  practitioners  in  the  King's  Bench  also  encour- 
aged ejectment,  for  it  enabled  them  to  share  in  the  lucrative 
practice  of  the  Common  Pleas.3 

'See  §6. 

2  See  §19. 

8  It  seems  an  anomalous  condition  of  affairs  that  jealousies  existing 
between  the  different  courts  and  their  respective  practitioners  should 
have  exerted  any  influence  in  formulating  remedies.  Mr.  Baron  Gilbert 
observes  that  in  14  H.  7  "  it  began  to  be  resolved  that  an  habere  facias 
possessionem  would  lie  to  recover  the  term  itself.  It  seems  that  about 
this  time  long  terms  had  their  beginning;  and  that  since  lessees  for 
years  could  not  by  law  recover  the  land  itself,  they  used,  when  molested, 
to  go  into  equity  against  the  lessors  for  a  specific  performance;  and 
against  strangers,  for  perpetual  injunctions,  to  quiet  their  possessions. 
This,  drawing  the  business  in  the  courts  of  equity,  induced  the  courts 
of  law  to  resolve,  that  they  should  recover  the  land  itself  by  an  habere 
facias  possessionem"  Gilbert  on  Ejec.  pp.  3,  4.  See  §  18. 


618  VIII.     PROPERTY   (IN  GENERAL) 

§  13.  —  In  feudal  times  a  freehold  estate  was  the  only 
acknowledged  title  to  land.  Estates  for  years  were  un- 
known. A  demise  of  the  possession  of  land  for  a  term  of 
years  was  not  considered  as  conveying  to  the  grantee  any 
title  to  the  land,  but  was  construed  merely  as  a  covenant, 
contract,1  or  agreement  between  the  lord  and  the  tenant. 
The  termor  was  considered  as  a  bailiff  to  the  freeholder  or 
reversioner,  or  mere  pernor  of  the  profits,2  and  his  term 
was  regarded  merely  as  a  chattel. 

§  14.  —  The  tenant  was  not  made  a  party  to  controver- 
sies over  the  title  to  the  freehold,  and  if  a  recovery  was  had 
against  his  lord,  whether  bona  fide  or  covinous,  the  freehold 
was  discharged  of  the  term.3  The  lessee  was  remediless 4 
until  the  statute  of  21  Henry  VIII,  c.  15,  allowed  him  to 
falsify  fraudulent  recoveries.5  If  the  tenant  was  evicted  by 
his  lessor,  he  had  a  writ  of  covenant  against  him  by  which, 
under  the  old  practice,  he  recovered  the  term  as  well  as  dam- 
ages ;  6  but,  if  ousted  of  his  possession  by  a  stranger,  he  was, 
prior  to  the  time  of  Henry  III,  without  remedy.  He  had, 
indeed,  his  writ  of  covenant  against  his  lessor,  but  his  only 
recovery  was  damages.  He  did  not  regain  the  term  or  pos- 
session.7 Such  a  remedy  was  obviously  inadequate,  and  the 
lessee  frequently  recovered  nothing  on  his  judgment.8 

§  15.  —  During  the  reign  of  Henry  III,  however,  a  writ 
was  introduced  by  Walter  de  Merton  or  William  Moreton,9 
chancellor  of  that  king,  which  furnished  the  lessee,  or 
termor,  a  remedy  against  any  one  who,  claiming  from  his 
lessor,  evicted  him.  By  this  writ,  which  was  called  "  Quare 

1See  Bates  v.  Sparrell,  10  Mass.  323;  2  Bla.  Com.  p.  140. 
2  See  Dorsey  on  Ejectment,  p.  9. 

8  See  Stearns  on  Real  Actions  (2nd  ed.),  p.  116;  Dorsey  on  Ejectment, 
p.  9. 

4  Stearns  on  Real  Actions,  p.  116. 

"Reeves'  Eng.  Law  (ed.  1880),  vol.  4,  p.  349. 

6  3  Bla.  Com.  p.  200. 

7  Ibid,  p.  200;  Reg.  Brev.  p.  227. 

8  Baron  Gilbert,  after  observing  that  formerly  estates  for  years  were 
only  "  a  precarious  possession,"  says  of  the  tenants  that  "  if  they  were 
ousted  by  strangers,  they  could  only  have  recovered  damages   for  the 
loss  of  their  possessions;    and  if  they  were  ousted  by  their  lessors,  they 
could  only  seek  a  remedy  from  their  covenants."     Gilbert  on  Ejectment, 
by  Runnington,  p.  3. 

9  Reg.  Brev.  p.  227.     "  Provision  was  made,"  says  Bracton,  "  de  con- 
silio  curice"     (Bracton,  f.  220). 


69.    SEDGWICK    $    WAIT:    EJECTMENT    619 

ejecit  infra  terminum"  the  plaintiff  recovered  damages  for 
the  loss  of  so  much  of  the  term  as  the  defendant  had  wrong- 
fully withheld,  and  the  sheriff  put  the  lessee  in  possession 
for  the  unexpired  portion  of  the  term. 

§  16.  —  This  writ  required  the  defendant  to  show  where- 
fore  he  deforced  the  plaintiff  of  certain  premises  which  C. 
had  demised  to  plaintiff  for  a  term  not  yet  expired,  within 
which  term  the  said  C.  sold  the  lands  to  the  defendant,  by 
reason  of  which  sale  the  defendant  had  ejected  the  plaintiff.1 

The  writ  was  drawn  either  as  a  prcecipe  or  a  si  te  fecerit 
securum.  When  first  introduced  the  former  was  considered 
the  better  form,2  but  in  the  time  of  Edward  III  the  latter 
was  universally  adopted.3 

§  17.  —  It  is  to  be  noted  that  the  writ  ran,  "  by  reason 
of  which  sale  the  defendant,  etc."  According  to  the  au- 
thorities, it  was  a  very  essential  part  of  the  lessee's  case 
that  he  should  show  that  the  defendant  claimed  under  the 
lessor,  for  the  writ  would  not  lie  against  a  stranger  who 
ejected  the  lessee,  and  who,  in  so  doing,  did  not  rely  upon 
any  privity  of  title  or  estate  with  the  lessor.4 

Mr.  Reeves  6  quotes  Bracton  as  authority  for  the  state- 
ment that  the  writ  lay  against  any  person  who  ejected  the 
lessee,  but  a  careful  examination  of  Bracton's  language  has 
shown  that  he  did  not  consider  it  so  large  a  remedy.6  The 
ancient  authorities  seem  to  be  overwhelming  in  support  of 
the  view  that  the  lessee  must  show  that  the  defendant 
claimed  under  the.  lessor.7 

1Reg.  Brev.  p.  227;  F.  N.  B.  p.  197. 

2  Bracton,  f.  220;  Reeves'  Hist.  Eng.  Law  (Am.  ed.  1880),  vol.  2,  p. 
137. 

8  Reeves'  Hist.  Eng.  Law  (ed.  1880),  vol.  3,  p.  232. 

4 18  Edw.  II,  f.  599. 

"Reeves'  Hist.  Eng.  Law  (ed.  1880),  vol.  2,  p.  136;  Bracton,  f.  220. 

"See  Adams  on  Ej.  (4th  ed.  1854)  p.  7,  *4,  where  Mr.  Reeves'  inter- 
pretation of  Bracton  is  shown  to  be  erroneous. 

TSee  Stat.  Abr.  Title  "  Quare  Ejecit."  "In  quare  ejecit  plaintiff 
shall  recover  his  term,  and  damages  by  him  sustained  by  reason  of  the 
gale:1  Reg.  Brev.  p.  227:  "  Sciendum  est  quod  breve  (sc.  Quare  Ejecit}, 
.  .  .  habet  fieri  quando  A,  dimisit  B,  decem  acras  terras  ad  terminum 
decem  annorum,  &  ide  A,  durante  termino  illo  vendit  eandem  terrain  C, 
in  feodo,  occasione  cujus  venditionis  durante  adhuc  termino  praedicto, 
idem  C,  ipsum  B,  de  prsedicta  terra  ejecit.  .  .  .  Fuit  hoc  breve  inventum 
per  discretum  virum  Wilhelmum  de  Merton  ut  terminarius  recuperet 
catalla  sua  versus  feoffatum."  See,  also,  18  Edw.  II,  f.  599;  Hil.  Term, 


620  VIII.     PROPERTY   (IN  GENERAL) 

Furthermore,  it  is  difficult  to  imagine  any  reason  for  the 
introduction  of  the  writ  of  ejectione  firmce  more  than  half 
a  century  after  quare  ejecit  was  devised,  if  the  latter  writ 
would  run  against  a  stranger. 

§  18.  —  The  title  of  a  lessee  or  tenant  for  years  was  not, 
as  yet,  of  sufficient  importance  to  receive  any  consideration 
from  the  courts  in  actions  affecting  real  property,  nor  was 
the  lessee  allowed  to  make  his  precarious  estate  the  basis  on 
which  to  raise  or  discuss  questions  of  title  to  land  with  a 
stranger.  That  duty  devolved  upon  the  freeholder  or  lord, 
and  the  lessee's  redress,  as  against  a  stranger,  was  tq  induce 
the  lord  to  institute  a  real  action  to  regain  the  freehold. 
If  the  lord  or  freeholder  neglected  to  institute  the  action, 
or,  as  frequently  occurred,  was  in  collusion  with  the  stranger, 
the  unfortunate  tenant  for  years  next  applied  to  a  court 
of  equity,  to  compel  a  specific  performance  of  the  lease  or 
contract  by  the  lessor,1  and  as  against  strangers  for  a  per- 
petual injunction  to  quiet  the  possession.2 

§  19.  —  During  the  reign  of  Edward  II,  or  the  early  part 
of  the  reign  of  Edward  III,  a  new  writ  made  its  appearance, 
which  gave  the  termor  or  tenant  for  years  a  remedy  against 
strangers,  who,  not  claiming  under  the  lessor,  entered  and 
evicted  the  lessee.  This  new  remedy  was  in  its  nature  a  writ 
of  trespass.  The  first  mention  of  it  in  the  reports  refers  to 
it  simply  as  a  writ  of  trespass.3  Later  it  acquired  the  name 
of  ejectione  firmce.  The  purpose  of  the  writ  was  to  give 
the  plaintiff  damages  for  the  injuries  inflicted  upon  him  in 
being  evicted  from  his  possession  by  the  defendant.4 

46  Edw.  Ill,  f.  4,  pi.  12;  Gilbert  on  Ejectment  (2nd  ed.),  p.  123;  also, 
Roscoe  on  Actions  Relating  to  Real  Property,  p.  [98] :  Quare  ejecit, 
&c.,  only  lies  where  the  ejector  claims  title  under  the  lessor,  and  not 
against  a  mere  stranger,  for,  in  the  latter  case,  the  remedy  was  by 
ejectione  firmce.  F.  N.  B.  II,  p.  197;  19  Henry  VI,  p.  56,  f.  19;  21  Edw. 
IV,  pp.  10,  30,  per  Choke,  J.:  "Quare  Ejecit,  &c.,  lieth  where  one  is  in 
by  title,  ejectione  firmce,  where  one  is  in  by  wrong."  See  Reeves'  Hist. 
Eng.  Law  (1880),  vol.  3,  p.  232,  note  (a). 

1  Gilbert  on  Ejectment,  p.  2;  Stearns  on  Real  Actions   (2nd  ed.),  p. 
56  [54] ;  Runnington  on  Ejectment,  p.  5. 

2  See  §  12,  note. 

*"A  certain  Adam  brings  writ  of  trespass  against  R.  of  S.,  and 
K.  of  D«,  for  that  with  force  and  arms  he  ejected  him  from  a  manor, 
which  he  holds  for  a  term  under  the  lease  of  one  B."  44  Edw.  Ill,  f.  22, 
pi.  26. 

4  See  §  12. 


69.     SEDGWICK  #  WAIT:  EJECTMENT     621 

§  20.  —  The  writ  required  the  defendant  to  show  where- 
fore, with  force  and  arms,  he  entered  upon  certain  lands  ^" 
which  C.  has  demised  to  plaintiff  for  a  term  not  yet  expired, 
and  ejected  the  said  plaintiff  from  his  farm.  There  was 
usually  a  clause,  charging  that  the  defendant  had  carried 
off  the  plaintiff's  goods  and  chattels,  and  often  a  clause  de- 
claring that  he  had  occupied  the  premises  for  a  long  time.1 
The  process,  as  upon  all  writs  of  trespass,  was  by  attach- 
ment, distress,  and  outlawry. 

§  21.  —  Blackstone  says,  that,  "  For  this  injury  (i.  e., 
ouster  or  amotion  of  possession  from  an  estate  for  years) 
the  law  has  provided  him  [the  lessee]  with  two  remedies,  ac- 
cording to  the  circumstances  and  situation  of  the  wrong-doer : 
the  writ  of  ejectione  firmce,  which  lies  against  any  one  —  the 
lessor,  reversioner,  remainderman,  or  any  stranger,  who  is 
himself  the  wrong-doer  and  has  committed  the  injury  com- 
plained of;  and  the  writ  of  quare  ejecit  infra  termvnum, 
which  lies  not  against  the  wrong-doer  or  ejector  himself,  but 
his  feoffee  or  other  person  claiming  under  him."  2  This  dis- 
tinction is  not  warranted  by  the  authorities,  and  the  com- 
mentator's position  is  not  sustained  by  the  form  of  the  writ 
quare  ejecit  infra  terminum,  which  alleges  an  ejectment  by 
the  defendant.  The  entry  and  wrongful  act  of  the  defendant 
created  the  cause  of  action  against  him,  not  any  act  of  his  * 
lessor.  It  would  be  extraordinary  if  an  alienee  of  a  wrong- 
doer was  liable  in  damages  for  the  torts  committed  by  his 
alienor.  Damages  always  constituted  a  part  of  the  recovery, 
and  when  the  term  had  expired  the  only  recovery  in  quare 
ejecit.3 

§  22.  —  The  writ  of  ejectione  firma  issued  in  all  cases 
except  that  where  the  ejector  claimed  under  the  lessor  resort  / 
was  usually  had  to  the  older  writ  of  quare  ejecit  infra  ter- 
mlnuTn,  Even  the  grantor  was  liable  to  be  sued  on  this  writ, 
notwithstanding  the  old  doctrine  that  a  man  could  not  enter, 
vi  et  armis,  into  his  own  freehold.4 

1Reg.  Brev.  f.  227,  228. 

8  3  Bla.  Com.  p.  199. 

8  Mr.  Reeves  falls  into  the  same  error.  "  The  second  (sc.  quare  ejecit 
infrn  terminum)  lay  only  against  the  alienee  of  the  ejector."  Reeves' 
Hist.  Eng.  Law  (1880),  vol.  4,  p.  237.  See  Bel.  p.  159. 

'Reeves'  Hist.  Eng.  Law  (ed.  1880),  vol.  3,  p.  233. 


622  VIII.     PROPERTY   (IN  GENERAL) 

J  §  23.  —  In  the  action  of  ejectione  firmce,  the  plaintiff  at  • 
first  only  recovered  damages,  as  in  any  other  action  of  tres- 
pass. The  remedy  of  damages  was,  however,  often  inade- 
quate. The  courts,  consequently  following,  it  is  said,  in 
the  footsteps  of  the  courts  of  equity,1  and  probably  by 
analogy  with  the  form  of  recovery  in  quare  ejecit,  introduced 
into  this  action  a  species  of  relief  not  warranted  by  the  orig- 
inal writ,  nor  included  in  the  prayer  of  the  declaration, 
which  sounded  for  damages  only,  and  was  silent  as  to  any 
restitution  —  viz.,  a  judgment  to  recover  the  term,  and  a  i 
writ  of  possession  thereupon.  Possibly  the  change  was  in- 
spired by  jealousy  of  the  chancery  courts.2 

§  24.  —  It  cannot  be  stated  precisely  when  this  change 
took  place.  In  1383  it  was  conceded  by  the  full  court  that 
in  ejectione  firmce  the  plaintiff  could  no  more  recover  his 
term  than  in  trespass  he  could  recover  damages  for  a  tres- 
pass to  be  done.3  The  decision  shows  that  the  point  was  then 
debated.  The  same  doctrine  was  held  in  1455  by  one  of  the 
judges.4 

§  25.  —  But  in  1468  it  was  agreed  by  opposing  counsel 
that  the  term  could  be  recovered,  as  well  as  damages.5  The 
earliest  reported  decision  to  this  effect  was  in  1499,6  and  is 
referred  to  by  Mr.  Reeves  as  the  most  important  adjudication 
rendered  during  the  reign  of  Henry  VII,7  for  it  changed 

1  Reeves'  Hist.  Eng.  Law  (ed.  1880),  vol.  4,  pp.  237,  238;  3  Bla.  Com. 
p.  200.     The  nature  of  this  equitable  jurisdiction  cannot  be  clearly  de- 
nned.   The  authorities  usually  cited  are  Lill.  Prac.  Reg.  p.  496,  quoting 
27   Henry  VIII,  p.   15;   Litt.   Rep.  p.   166;  3  Bulst.  p.  34    (Court  of 
Marches),  where  it  was  held  that  the  chancellor  and  the  Counsell  del 
Marches  could  quiet  possessions,  but  had  not  the  power  to  determine 
the  title.     The  same  equitable  jurisdiction  is  exercised  in  some  of  the 
courts  of  the  United  States. 

2  See  Dorsey  on  Ejectment,  p.  10;  Gilbert  on  Eject,  p.  4.    See  §12. 
8  Bel.  p.  159. 

4  Mich.  33,  Henry  VI,  f.  42,  pi.  19. 

8  7  Edw.  IV,  f.  5-10.  Per  Fairfax:  si  home  port  ejectione  firmce,  le 
Plaintiff  recovera  fon  terme  qui  est  arrere,  si  bien  come  in  quare  ejecit 
infra  terminum;  et,  ei  nul  soit  arrere,  donques  tout  m  Damages.  (Bro. 
Abr.  tit.  Quare  ejecit  infra  terminum,  pi.  6.)  See  Gilbert  on  Eject, 
p.  4.  See,  also,  21  Edw.  IV,  f.  11 ;  Jenk.  Cent.  p.  67,  case  26. 

6 14  Henry  VII;  Rast.  Ent.  f.  252. 

7  Reeves'  Hist.  Eng.  Law  (ed.  1880),  vol.  4,  p.  235.  Mr.  Gilbert  ob- 
serves that  it  "is  a  question,  which  has  been  much  agitated,  whether 
the  term  was  recoverable  in  ejectment,  prior  to  the  reign  of  Henry  VII. 
.  .  .  Ejectment  was  NEVER  laid  with  a  continuando;  consequently  the 


69.     SEDGWICK  #  WAIT:  EJECTMENT     623 

the  whole  system  of  remedies  for  the  trial  of  controverted 
titles  to  land,  and  the  recovery  of  real  property. 

§  26.  —  The  result  was  not  foreseen  at  once,  but  in  the 
next  reign  the  action  of  ejectment  came  to  be  commonly 
applied  to  the  trial  of  titles.  Real  actions  disappeared  save 
in  a  few  cases  where  ejectments  would  not  lie,  and  in  the 
reign  of  Elizabeth  were  practically  supplanted  by  the  action 
of  ejectment.1  Real  writs  gradually  sank  into  disrepute, 
and  at  length  were  chiefly  resorted  to  by  speculators  and 
unprincipled  practitioners  of  the  law  to  defraud  persons  of 
low  condition  of  their  substance  under  pretense  of  recovering 
for  them  large  estates  to  which  they  had  no  color  of  title.2 

The  Massachusetts  Commissioners  observe,  (1834)3  that 
"  the  real  actions  ^provided  by  the  common  law  have  been 
very  little  used  in  England  for  the  last  three  centuries. 
Hence  it  has  followed  that  the  law  relating  to  these  actions 
has  long  ceased  to  be  familiar  to  the  members  of  the  pro- 
fession; and  was  to  be  sought  for  when  wanted,  in  books 
which  at  first  view  appeared  to  many  readers  uninteresting 
and  even  repulsive." 

§  27.  —  Blackstone  describes  the  practice  under  this  new 
writ  as  follows :  4  "  The  better  to  apprehend  the  contrivance 
whereby  this  end  is  effected,  we  must  recollect  that  the  rem- 
edy by  ejectment  is  in  its  original  an  action  brought  by 
one  who  hath  a  lease  for  years,  to  repair  the  injury  done 
him  by  dispossession.  .  .  .  When  ...  a  person  who  hath 
right  of  entry  into  lands,  determines  to  acquire  that  posses- 
plaintiff  in  such  action  could  NEVER  recover  damages  for  the  mesne 
profits.  Hence  it  may  be  inferred  that  the  term  was  recoverable  in 
ejectment,  even  prior  to  the  reign  of  Hen.  VII;  for  else,  the  plaintiff 
not  recovering  damages,  the  action  must  have  been  nugatory."  Gilbert 
on  Eject,  p.  4. 

1Alden's  Case,  6  Rep.  105  (1601).  Plea  to  a  writ  of  ejectione  firmat 
was  ancient  demesne.  It  was  answered  and  resolved  that  the  plea  was 
good,  because  the  common  intendment  is,  that  the  title  and  rights  of 
the  land  will  come  in  debate.  "  And  forasmuch  as  at  this  day  all  titles 
of  lands  are  for  the  greatest  part  tried  in  actions  of  ejectments,  if  in 
them  ancient  demesne  should  not  be  a  good  plea,  the  ancient  privileges 
.  .  .  would  be  utterly  taken  away  and  defeated."  See  Doe  d.  Poole  w. 
Errington,  1  Ad.  &  El.  750;  especially  the  learned  note  at  page  756. 

2  Report  of  the  English  Real  Property  Commissioners,  p.  42. 

8  Report  of  the  Commissioners  to  Revise  the  General  Statutes  of 
Mass.,  part  3,  p.  154,  n. 

4  3  Bla.  Com.  p.  201. 


624  VIII.     PROPERTY   (IN  GENERAL) 

sion,  which  is  wrongfully  withheld  by  the  present  tenant,  he 
makes  (as  by  law  he  may)  a  formal  entry  on  the  premises ; 
and  being  so  in  possession  of  the  soil,  he  there,  upon  the 
land,  seals  and  delivers  a  lease  for  years  to  some  third  per- 
son or  lessee;  and,  having  thus  given  him  entry,  leaves  him 
in  possession  of  the  premises.  This  lessee  is  to  stay  upon 
the  land  till  the  prior  tenant,  or  he  who  had  the  previous 
possession,  enters  thereon  afresh  and  ousts  him;  or  till  some 
other  person  (either  by  accident  or  by  agreement  before- 
hand) comes  upon  the  land  and  turns  him  out  or  ejects  him. 
For  this  injury  the  lessee  is  entitled  to  his  action  of  ejectment 
against  the  tenant,  or  this  casual  ejector,  whichever  it  was 
that  ousted  him,  to  recover  back  his  term  and  damages." 

§  28.  —  The  plaintiff  was  required  to  show  that  he  was  on 
the  land  rightfully,  and  that  his  lessor  had  executed  a  valid 
lease.  The  title  of  the  lessor,  therefore,  became  an  essential 
part  of  the  plaintiff's  case.  An  actual  and  formal  entry  by 
the  lessor  was  necessary,  for,  by  the  old  law,  one  conveying 
an  interest  in  land,  when  out  of  possession,  was  guilty  of 
maintenance,  a  penal  offense.  Indeed,  it  was  doubted  at  first 
whether  this  occasional  possession,  taken  merely  for  the  pur- 
pose of  conveying  the  title,  excused  the  lessor  from  the  legal 
guilt  of  maintenance.1 

§  29.  —  An  actual  ouster,  by  the  tenant  in  possession  was 
not  requisite,  for,  if,  after  the  lessee's  entry  under  the  lease, 
the  tenant  remained  on  the  land,  he  was  deemed,  without  any 
other  act,  to  have  ousted  the  lessee.2 

§  30.  —  It  is  matter  of  deep  regret  that  the  courts  did  not 
require  proof  that  the  ouster  had  been  committed  by  the  ten- 
ant in  possession  of  the  premises,  for  he  was,  of  course  the 
person  most  interested  in  opposing  a  change  of  possession. 
It  was  held  in  1608,  that  the  servant  of  the  tenant  in  posses- 
sion was  a  sufficient  ejector;3  but  the  line  was  not  drawn 

*3  Bla.  Com.  p.  201;  1  Chanc.  Rep.  App.  p.  39  [*76] ;  see  Stat.  32 
Henry  VIII,  c.  9,  s.  2.  Mr.  Gilbert  says:  "The  ancient  practice  was, 
that  leases  of  ejectment,  to  try  the  title,  should  be  actually  sealed  and 
delivered;  because  otherwise  the  plaintiff  could  maintain  no  title  to 
the  term;  and  they  were  also  to  be  sealed  on  the  land  itself,  it  being 
maintenance  to  convey  out  of  possession."  Gilbert  on  Ejectment,  p.  7. 

"Lill.  Prac.  Reg.  p.  674. 

'Wilson  v.  Woddel,  1  Brownl.  143;  Yelv.  p.  144. 


69.     SEDGW1CK  <J-  WAIT:  EJECTMENT     625 

even  here.  Any  one  who  came  upon  the  land  by  chance  after 
the  sealing  and  delivery  of  the  lease,  with  no  intention  of 
disturbing  the  possession  of  the  lessee,  was  considered  a  suffi- 
cient ejector  to  be  made  defendant.1 

§  81.  —  The  action  as  thus  regulated  was  liable  to  great 
abuse,  for  the  tenant  could  be  turned  out  of  possession  with-^ 
out  any  notice  of  the  suit,  or  opportunity  of  asserting  or 
defending  his  title,  on  a  judgment  rendered  by  default 
against  an  ejector  with  whom  he  had  no  interests  in  common. 
The  ejector  was,  in  many  instances,  not  affected  by  the  judg- 
ment, and  being,  as  a  rule,  friendly  to  the  plaintiff,  he  fre- 
quently suppressed  or  concealed  from  the  party  in  possession 
all  knowledge  of  the  suit. 

§  3£.  —  The  abuses  resulting  from  these  "  clandestine 
ejectments  "  led  to  the  establishment  of  a  rule  that  no  plain- 
tiff should  proceed  in  ejectment  to  recover  the  land  against 
a  casual  ejector,  unless  notice  of  the  suit  was  first  given  to,, 
the  tenant  in  possession,  if  any  there  were.2  The  courts  re- 
fused to  sign  judgment  against  the  casual  ejector  unless 
proof  of  such  notice  was  produced.3  The  tenant  in  posses- 
sion was  uniformly  admitted  to  defend  upon  his  undertaking 
to  indemnify  the  defendant  against  the  cost  of  the  suit.  The 
delivery  to  the  tenant  of  the  declaration,  being  the  process 
for  summoning  the  interested  party  into  court,  resembled 
the  service  of  a  writ,  and  as  it  constituted  the  only  warning 
of  the  claimant's  proceedings  which  the  tenant  in  possession 
received,  the  courts  were  careful  to  see  that  a  proper  service 
or  delivery  was  made.4 

§  33.  —  Much  trouble  and  inconvenience,  however,  at- 
tended the  observance  of  the  different  formalities.  If  several 
persons  were  in  possession  of  the  disputed  lands  it  was  con- 
sidered necessary  to  execute  separate  leases  upon  the  prem- 
ises of  the  different  tenants,  and  to  commence  a  separate 
action  upon  each  lease.5  The  remedy  was  as  yet  scarcely 
so  simple  and  expeditious  as  to  fully  satisfy  practitioners 

»Lffl.  Prac.  Reg.  p.  673. 

*3  Bla.  Com.  p.  202. 

•Rules  B.  R.  Trin.  14  Car.  II;  Cooke's  Rules  and  Orders. 

4  See  Longfield  on  Ejectment,  p.  33. 

•Adams  on  Ejectment  (4th  ed.),  p.  17  [*14l. 


626  VIII.     PROPERTY  (IN  GENERAL) 

who    were    seeking    relief    from    the    entanglements    of    real 
writs. 

§  34.  —  If  a  defense  was  interposed,  the  plaintiff  was 
obliged  to  establish  four  points  to  maintain  the  action,  viz., 
title,  lease,  entry,1  and  ouster.2  First,,  he  was  compelled  to 
show  a  good  title  in  his  lessor.  Secondly,  that  his  lessor, 
having  such  title,  made  a  lease  to  him  for  a  term  not  yet 
expired.  Thirdly,  that  the  plaintiff  took  possession  under 
the  lease.  Fourthly,  that  the  defendant  ejected  him. 

§  35.  —  To  put  the  question  of  title  to  land  solely  in 
issue,  and  to  eliminate  all  other  controversies  which  might 
arise  under  this  practice,  a  new  feature  was  ingrafted  upon 
the  action  by  Lord  Chief  Justice  Rolle,  who  presided  in  the 
court  of  the  Upper  Bench  in  the  time  of  the  Protectorate. 
We  have  seen  that  permission  was  granted  by  the  court  to 
the  tenant  in  possession  to  defend  the  ejectment  suit  only  as 
a  matter  of  favor.  The  courts  could,  therefore,  couple  with 
the  granting  of  this  favor  any  equitable  conditions  that 
seemed  proper. 

§  36.  —  Accordingly  the  practice  invented  by  the  Chief 
Justice,  and  afterwards  generally  adopted  by  the  courts, 
was  to  require  the  tenant,  as  a  condition  of  making  him  a 
party,  to  enter  into  a  rule,  called  the  consent  rule,  by  which 
he  agreed  to  confess  at  the  trial  the  lease,  entry,  and  ouster, 
and  to  insist  and  rely  solely  upon  his  title.  A  further  con- 
dition was  imposed  that  if  the  defendant  broke  this  engage- 
ment at  the  trial  he  should  pay  the  costs  of  the  suit,  and 
allow  judgment  to  be  entered  against  the  casual  ejector. 
This  rule  was  considered  highly  reasonable  because  when  the 
plaintiff  had  sealed  the  lease  upon  the  land  any  person  who 
came  thereon  animo  possidendi,  was,  in  strictness  of  law,  an 
ejector,  and,  therefore,  when  any  other  ejector  was  placed 
in  his  stead  it  was  proper  that  the  courts  should  not  allow 
him  to  exact  proof  of  an  actual  entry,  demise,  and  ouster; 
these  being  nothing  more  than  mere  forms  devised  to  bring 
up  tne  question  of  title,  and  which  it  would  have  been  unnec- 

1  An  actual  entry  was  necessary  to  avoid  a  fine.     Lord  Audley  v. 
Pollard,  Cro.  Elfz.  561 ;  see  4  H.  VII,  c.  24. 
1  See  Payne  v.  Treadwell,  5  CaL  310. 


69.     SEDGWICK  $  WAIT:  EJECTMENT     627 

essary  for  the  plaintiff  to  establish  against  the  casual  ejector 
who  would  have  allowed  judgment  by  default.1  It  is  the 
general  belief  that  this  novel  practice  was  introduced  about 
the  year  1656,  but  we  find  it  referred  to  in  a  case  in  Styles' 
Reports,2  decided  in  1625  in  C.  B.,  and  as  the  practice  was 
first  established  in  the  Upper  Bench  the  proper  date  must 
be  somewhat  earlier. 

§  37.  —  The  introduction  of  imaginary  or  fictitious  per- 
sons  as  parties  followed,3  and  was  finally  adopted  as  the  uni- 
versal practice,  though  reprobated  by  Blackstone, 4  chiefly 
on  the  trivial  ground  that  the  defendant  could  not  collect 
his  costs  from  an  imaginary  person.  This  objection  was 
overcome  by  framing  the  consent  rule  so  that  in  the  event 
of  judgment  for  defendant  the  plaintiff's  lessor  should  pay 
the  costs.  The  practice  was  briefly  as  follows:  A.,  the  claim- 
ant of  the  title,  delivered  to  B.,  the  tenant  in  possession,  a 
declaration  in  ejectment,  in  which  John  Doe  (or  Goodtitle) 
and  Richard  Roe  (or  Badtitle)  were  respectively  plaintiff 
and  defendant.  John  Doe  declared  on  a  fictitious  lease  or 
demise  of  the  lands  from  A.  to  himself  for  a  term  of  years, 
and  alleged  that  during  the  continuance  of  the  term  he  was 
ousted  from  possession  by  Richard  Roe.  The  title  of  the 
action  then  stood  John  Doe  in  the  demise  of  A.  against 
Richard  Roe.  To  the  declaration  was  annexed  a  notice 
signed  by  Richard  Roe  and  directed  to  B.,  informing  him 
as  "  a  loving  friend  "  that  he  (Roe)  had  been  sued  as  a 
casual  ejector,  and  advising  B.  to  appear  and  cause  himself 
to  be  made  a  defendant  in  his  stead,  otherwise  he,  Richard 
Roe,  would  suffer  judgment  to  be  entered  by  default,  and 


1See  Gilbert  on  Ejec.  p.  8. 

2  Styles'  Reports,  p.  368.     "  If  one  move  that  the  title  of  land  doth 
belong  unto  him,  and  that  the  plaintiff  hath  made  an  ejector  of  his  own, 
and  thereupon  prays  that,  giving  security  to  the  ejector  to  save  him 
harmless,  he  may  defend  the  title,  this  court  will  grant  it,"  &c.     The 
practice  is  mentioned  in  the  Court  Rules  in  1662;    Cooke's  Rules  and 
Orders,  B.  R.  Trin.  14  Car.  II,  and  was  continued  under  Charles  II; 
See  Davies'  Case,  1  Keb.  28,  P.  13,  Car.  II. 

3  See  Cooke's  Rules  and  Orders,  B.  R.  Mich.  1654.     We  find  a  rule 
forbidding  any  attorney  from  acting  as  lessee  in  an  ejectment,  which 
shows  that  the  lessee  was  not  then  an  imaginary  person. 

4  3  Bla.  Com.  p.  203.     The  parties  were  imaginary  in  many  cases  in 
1678.     See  Addison  v.  Otway,  1  Mod.  250-252. 


628  VIII.     PROPERTY   (IN  GENERAL) 

B.  would  be  turned  out  of  possession..1  The  latter  part  of 
the  notice,  to  the  effect  that  unless  the  tenant  defended  his 
title  he  would  be  turned  out  of  possession,  was  considered 
material,2  for  if  the  notice  did  not  sufficiently  apprise  him 
of  the  consequences  of  his  default  the  courts  would  probably 
have  restored  the  tenant  to  the  possession  if  he  had  been 
irregularly  deprived  of  it  by  such  a  proceeding.  As  under 
the  former  practice,  proof  of  service  of  the  declaration  and 
notice  on  B.  was  an  essential  prerequisite  to  the  entry  ol 
judgment  against  the  casual  ejector.  If  there  was  no  ten- 
ant in  possession  judgment  could  not  be  entered.  Conse- 
quently in  cases  of  vacant  possession  the  old  practice  was 
followed,  under  which  notice  was  required  only  in  cases 
where  there  was  a  tenant.  The  plaintiff,  on  resorting  to 
the  old  practice,  was  of  course  compelled  to  prove  an  actual 
lease,  entry,  and  ouster. 

§  38.  —  If  B.  failed  to  appear,  judgment  was  entered  by 
default  against  the  casual  ejector.  But,  on  appearing  and 
entering  into  the  consent  rule,  B.  was  substituted  as  defend- 
ant in  place  of  the  casual  ejector,  and  could  plead  the  gen- 
eral issue.  If  B.  failed  to  appear  on  the  trial  and  confess 
^.  lease,  entry,  and  ouster,  the  plaintiff  was  necessarily  non- 
suited, because  the  fictitious  lease,  entry,  and  ouster  were  not 
susceptible  of  proof. 

§  39.  —  By  indorsing  this  cause  of  nonsuit  on  the  postea 
the  plaintiff  was  entitled  to  judgment  against  the  casual 
ejector,  3  according  to  the  condition  imposed  upon  the  tenant 
when  he  entered  into  the  consent  rule.  A  judgment  against 
the  casual  ejector  would  be  stricken  out  even  after  the  lapse 
of  several  terms,  upon  the  application  of  the  real  defendant 
if  the  latter  was  guiltless  of  laches,  and  made  the  application 
as  soon  as  he  had  actual  notice  of  the  suit.4  Though  the 
declaration  was  served  only  on  the  tenant  in  possession,  the 
landlord  was  admitted  to  defend  5  with  the  tenant,  and  not 

1See  Archbold's  Practical  Forms  (N.Y.  1828),  p.  363. 
2  Doe  d.  Darwent  v.  Roe,  3  Dowl.  336. 
8Middleton's  Case,  1  Keb.  246. 

4  Dennis'  Lessee  v.  Kelso,  28  Md.  337. 

5  Styles'  Rep.  368;  Roch  v.  Plumpton,  1  Keb.  706;  Anon.,  12  Mod. 
.311;  Roe  d.  Leak  v.  Doe,  Barnes,  193. 


69.     SEDGWICK  #  WAIT:  EJECTMENT     629 

in  his  stead.1  After  the  statute,  11  Geo.  II,  c.  19,  §  13,  the 
landlord  was  admitted  to  defend  instead  of,  as  well  as  with,, 
the  tenant  in  possession.  Who  was  a  landlord  so  as  to  be 
entitled  to  defend,  was  a  subject  of  much  contention  in  the 
courts, 2  though  the  term  was  ultimately  held  to  include  every 
person  whose  title  was  connected  and  consistent  with  the  pos- 
session of  the  occupier. 3 

§  40.  —  If  the  plaintiff  recovered  judgment  either  by  de- 
fault or  after  contest  and  verdict,. a  writ  habere  facias  pos- 
sessionem  was  issued  to  the  sheriff  to  put  him  in  possession. 
This  writ  subserved  in  ejectment  somewhat  similar  functions 
to  an  habere  facias  seismam  in  a  real  action,  or  a  writ  of 
assistance  in  equity.4 

§  41.  —  The  judgment,  however,  did  not  establish  the  title 
or  right  of  property  of  the  plaintiff  to  the  land.  He  re- 
covered the  possession  but  not  the  seizin.  He 'became  pos- 
sessed "  according  to  his  right."  If  he  had  a  title  in  fee 
simple,  he  became  thereby  seized  in  fee  simple;  if  he  had  a 
chattel  interest  he  was  in  as  a  termor,  but  if  he  had  no  title 
he  was  in  as  a  trespasser, 5  except  that  he  was  not  liable  in 
trespass  for  such  an  entry. 

§  42.  —  The  judgment  was  not  conclusive  upon  the  title 
or  right  of  property,  even  between  the  parties.  6  The  action 
could  be  repeated  and  the  same  questions  retried  indefinitely,7 
because  there  was  no  privity  between  the  successive  fictitious 
plaintiffs,  and  the  record  and  judgment,  unlike  a  real  action, 
did  not  reveal  the  nature  of  the  title  that  had  been  estab- 
lished upon  the  former  trial.  Each  successive  ejectment  was 

»Balderidge  v.  Paterson,  Barnes,  172;  Goodright  d.  Duke  of  Mon- 
tague v.  Wrong,  Barnes,  175;  see  Fairclaim  d.  Fowler  v.  Shamtitle,  3 
Burr.  1290,  especially  the  learned  argument  of  Mr.  Harvey,  one  of  the 
counsel,  and  Lord  Mansfield's  admirable  statement  of  the  nature  of 
ejectment. 

2  See  Lamb  v.  Archer,  Comb.  208  (5  W.  &  M.) ;  Jones  v.  Carwithen, 
Comb.  339  (7  Will.  Ill) ;  Strike  and  Dikes,  Comb.  332. 

8  See  Fairclaim  d.  Fowler  v.  Shamtitle,  3  Burr.  1290,  per  Lord  Mans- 
field. 

*See  Chap.  XXI. 

6  See  Jackson  v.  Haviland,  13  Johns.  (N.  Y.),  229-234;  Witbeck  v. 
Van  Rensselaer,  64  N.  Y.  27-31;  People  ex  rel  Scudder  v.  Cooper,  20 
Hun  (N.  Y.),  486;  Doe  d.  Morgan  v.  Bluck,  3  Campb.  447;  Equator 
Mining  &  Smelting  Co.  v.  Hall,  106  U.  S.  86;  s.  c.  5  Mor.  Trans.  92. 

6Clerke  v.  Rowell,  1  Mod.  10. 

'Stark  v.  Starrs,  6  Wall.  409.     See  Chap.  XX. 


630  VIII.     PROPERTY   (IN  GENERAL) 

founded  upon  a  new  lease,  entry,  and  ouster.  The  title  was 
never  formally  or  directly  in  issue,  but  was  tried  collaterally, 
or  brought  in  question  obliquely.  l  The  gist  of  the  action 
was  the  trespass  of  the  defendant  and  the  plaintiff's  right 
of  possession.  Every  fresh  trespass  was  a  fresh  cause  of 
action.  As  the  right  of  property  might  be  in  one  person, 
the  right  of  possession  in  a  second,  and  the  actual  posses- 
sion in  a  third,  a  judgment  for  the  possession  did  not  nec- 
essarily conclude  the  title.  Under  the  feudal  system  a  pecu- 
liar sanctity  attached  to  a  man's  right  of  possession  of  land, 
and  when  ejectments  were  introduced  the  courts  were  reluc- 
tant to  hold  that  he  must  stake  his  possession  upon  the  re- 
sults of  a  single  trial,  but  inclined  to  afford  him  ample  and 
repeated  opportunity  to  exhibit  his  title  and  prove  his  rights. 

§  43.  —  When  this  question  of  the  co'nclusiveness  of  the 
judgment  in  ejectment  came  up  in  the  Supreme  Court  of  the 
United  States,  it  was  decided  that,  where  the  fictitious  scaf- 
folding of  lease,  entry,  and  ouster  had  been  demolished,  and 
the  parties  made  the  issue  in  their  own  names,  the  judgment 
was  conclusive  without  being  made  so  by  statute.2  Evi- 
dently the  conclusion  the  court  reached  was  that  the  incon- 
clusiveness  of  the  judgment  was  attributable  to  the  fictions. 
The  principles  of  this  case,  though  undoubtedly  sound,  have 
not  been  universally  acknowledged.3 

§  44.  —  The  general  policy  in  America  has  been  to  make 
the  judgment  in  ejectment  conclusive  upon  the  title  by  stat- 
ute, the  defeated  party  being  allowed  one  new  trial  as  of 
right,  and  in  some  States  still  another  trial  in  the  discretion 
of  the  court  for  cause  shown.  This  latter  feature  is  peculiar 
to  ejectment,  and  may  be  traced  back  to  the  old  feudal  idea 
of  the  sanctity  of  the  tenure  of  real  property.  The  policy 
is  attributable  either  to  distrust  of  the  certainty  of  absolute 

1  See  Caperton  v.  Schmidt,  26  Cal.  500. 

2  Sturdy   t>.   Jackaway,   4   Wall.   174.     This    subject   is    discussed   at 
length   in   Chapter   XX,   on   the   Judgment.      See,    further,    Dawley   v. 
Brown,  79  N.  Y.  390;  Doyle  v.  Hallam,  21  Minn.  515;  Wilson  v.  Henry, 
40  Wis.  594;  Phillpotts  v.  Blasdel,  10  Nev.  19;  Brownsville  v.  Cavazos, 
100  U.  S.  138;  Gordinier's  Appeal,  89  Pa.  St.  528;  Amesti  v.  Castro, 
49  Cal.  325. 

8  Kimmel  v.  Benna,  70  Mo.  52;  Hogan  v.  Smith,  11  Mo.  App.  314; 
Dunn  v.  Miller,  8  Mo.  App.  467. 


69.     SEDGWICK  #  WAIT:  EJECTMENT     631 

justice  in  the  courts,  or  to  a  disinclination  to  force  the  owner 
of  land  to  risk  his  rights  to  his  possessions  upon  a  single 
trial.1 

§  45.  —  Lord  Coke  strenuously  opposed  the  adoption  of 
ejectments, 2  because  they  introduced  "  infiniteness  of  ver- 
dicts, recoveries,  and  judgments,"  and  "  sometimes  contrarie- 
ties of  verdicts  and  judgments,  one  against  the  other,"  lit 
one  and  the  same  suit;,  and  because  the  suits  could  be  re- 
peated for  thirty  or  forty  years,  to  the  utter  impoverishment 
of  the  parties,  all  of  which  tended  "  to  the  dishonor  of  the 
common  law,  which  utterly  abhors  infiniteness  and  delaying 
of  suits,  wherein  is  to  be  observed  the  excellency  of  the  com- 
mon law,  for  the  receding  from  the  true  institution  of  it 
introduces  many  inconveniences,  and  the  observation  thereof 
is  always  accompanied  with  rest  and  quietness,  the  end  of 
all  human  laws."  Yet  in  real  actions,  to  which  this  great 
lawyer  clung  so  tenaciously,  the  judgments  were  not  always 
conclusive,  and,  as  was  decided  in  the  case  just  cited,3  did 
not  bar  new  actions  of  a  higher  degree  or  nature.  If  eject- 
merits  could  be  repeated  infinitely,  a  single  real  action  could 
be  prolonged  for  a  lifetime.  That  the  excessive  technicalities 
incident  to  real  writs  tended  to  merge  the  end  in  the  means, 
can  be  well  illustrated  by  an  extract  from  an  accurate  and 
highly  respectable  writer  on  real  actions.  Speaking  of  writs 
of  formedon,  Mr.  Booth  said,  "  I  shall  here  at  least  give 
some  light  how  long  these  actions  may  be  regularly  delayed 
before  any  judgment  can  be  given  in  them,  which  is  much 
for  the  advantage  of  the  tenant,  who  ordinarily  desires  to 
keep  the  possession  as  long  as  he  can."'  The  learned  writer 
keeps  his  promise  by  a  recital  of  the  dilatory  methods  em- 
ployed, and  then  states  that  "  if  there  be  many  tenants  and 
vouchers  to  be  vouched  over,  it  makes  the  delay  possibly  as 
long  as  the  parties  live,  though  the  suit  continue  many 
years."  5 

aSee  Chap.  XXII. 
2  Ferrer's  Case,  3  Coke,  274. 
8  Ferrer's  Case,  3  Coke,  274. 

4  Booth  on  Real  Actions,  p.  156;  See  Humphrey's  Observations  on 
Real  Property,  p.  134. 

8  Booth  on  Real  Actions,  p.  159. 


632  VIII.     PROPERTY   (IN  GENERAL) 

Even  the  opinion  of  so  distinguished  and  able  a  lawyer 
as  Coke  concerning  the  transcendent  merits  of  real  writs  can- 
not be  accepted  against  this  unfavorable  recital  of  the  abuses 
connected  with  the  system. 

§  46.  —  After  a  suitor  in  ejectment  had  prevailed  in  sev- 
eral trials,  he  applied  to  a  court  of  chancery  for  a  perpetual 
Injunction  against  further  ejectments,  which  that  court,  as 
«,  rule,  seems  to  have  been  reluctant  to  grant,  because  every 
new  ejectment  supposes  a  new  demise,  and  the  costs  were 
a  recompense  for  the  trouble  and  expense  to  which  the  pos- 
sessor had  been  put.1  The  House  of  Lords,  upon  appeal, 
granted  an  injunction  in  the  case  of  Earl  of  Bath  v.  Sher- 
win,2  against  further  ejectments  after  five  verdicts,  in  as 
many  successive  ejectments,  had  been  rendered  in  three  dif- 
ferent counties  in  favor  of  the  defendants. 

§  47.  —  An  instructive  and  curious  case  in  our  own  re- 
ports bearing  upon  this  subject  is  Strother  v.  Lucas,3  de- 
cided in  the  Supreme  Court  of  the  United  States  in  1838. 
The  controversy  was  before  the  same  court  in  1832.4  The 
court  refers  to  the  former  decision  and  reaffirms  the  doctrine 
that  a  judgment  in  ejectment  is  not  conclusive  upon  the 
right  either  of  possession  or  of  property,  and  says  that  the 
case  now  presents  new  features  which  the  court  deems  it 
proper  to  pass  upon  and  settle,  otherwise  a  court  of  chancery 
might  not  think  it  proper  to  enjoin  further  suits  "  so  long 
as  new  or  material  facts  could  be  developed,  or  pertinent 


xRunnington  on  Ejectment   (ed.  1806),  p.  12. 

*4  Bro.  P.  C.  373. 

Suits  to  quiet  title.  —  The  statutes  in  force  in  many  States  permit- 
ting persons  in  possession  to  maintain  a  suit  in  equity,  against  any 
party  claiming  an  interest  in  the  land,  adverse  to  the  possessor,  for  the 
purpose  of  determining  such  claim  and  quieting  the  title,  confer  "  a 
jurisdiction  beyond  that  ordinarily  exercised  by  courts  of  equity,  to  af- 
ford relief  in  the  quieting  of  title  and  possession  of  real  property.  By 
the  ordinary  jurisdiction  of  those  courts  a  suit  would  not  lie  for  that 
purpose,  unless  the  possession  of  the  plaintiff  had  been  previously  dis- 
turbed by  legal  proceedings  on  the  part  of  the  defendant,  and  the  right 
of  the  plaintiff  had  been  sustained  by  successive  judgments  in  his 
favor."  Field,  J.,  in  Stark  v.  Starrs,  6  Wall.  409,  citing  Shepley  v. 
Rangely,  Daveis,  242;  Devonsher  v.  Newenham,  2  Schoales  &  Lef.  208; 
Curtis  v.  Sutter,  15  Cal.  259. 

•12  Peters,  410. 

4  See  6  Peters,  763. 


69.     SEDGW1CK  #  WAIT:  EJECTMENT     633 

points  of  law  remained  unsettled."  The  court  then  proceeds 
to  clear  the  way  for  a  perpetual  injunction  against  further 
ejectments  by  discussing  and  deciding  in  all  their  bearings 
the  various  questions  involved.  This  decision,  it  should  be 
observed,  was  made  before  the  question  was  raised  as  to  the 
conclusiveness  of  the  judgment,  where  the  issue  is  between 
the  real  parties  in  interest,  in  their  own  names. 

§  48.  —  Though  the  general  form  of  proceeding  in  eject- 
ment was  settled  in  the  time  of  Charles  the  Second,  yet  the 
nature  of  the  action  was  not  clearly  understood,  nor  the  rules 
governing  it  definitely  established  until  the  beginning  of  this 
century.  The  changes  which  the  remedy  has  undergone 
both  at  the  hands  of  the  courts  and  of  the  legislatures  demon- 
strate that  it  never  could  have  been  regarded  as  an  entirely 
satisfactory  form  of  procedure. 

§  49.  —  The  courts  adopted  an  arbitrary  system  of  regu- 
lating the  action  by  permitting  persons  who  had  not  been 
made  parties  to  become  defendants,  and  continued  to  exercise 
this  jurisdiction  by  adopting  whatever  rules  were  thought 
to  best  accomplish  the  ends  of  justice.  Thus,  when  the 
plaintiff  was  an  actual  person,  it  was  held  that  his  death  did 
not  abate  the  action,  for  the  lessor  was  really  the  interested 
party,  and  the  absurd  suggestion  that  there  lived  a  man  of 
the  same  name  in  the  county  was  considered  sufficient.1  The 
plaintiff  was  not  allowed  to  release  the  costs,  and  was  held 
in  contempt  for  so  doing ; 2  and  an  attorney  who  assigned 
for  error  the  death  of  the  plaintiff  in  ejectment  was  adjudged 
in  contempt.3 

§  50.  —  There  was  a  wide  divergence  between  the  decis- 
ions, the  natural  result  of  regulating  the  action  by  the  mere 
will  or  caprice  of  the  judges,  who  differed  frequently  as  to 
what  decisions  in  particular  instances  best  accomplished  the 
ends  of  justice.  Some  cases  were  decided  upon  the  theory 
that  the  action  was,  in  its  nature  as  well  as  origin,  an  action 
of  trespass;  that  the  damages  constituted  the  principal  re- 
covery, the  restoration  of  the  term  and  possession  being 

1Addison  v.  Otway,  1  Mod.  250-252. 

•Anon.  Salk.  260.     Such  release  was  void.    Close  v.  Vaux,  Comb.  8. 

'Moore  v.  Goodright,  Stra.  899. 


634  VIII.     PROPERTY  (IN  GENERAL) 

merely  an  incident. *  Other  cases  were  decided  by  analogy 
to  real  actions.2  Thus  it  was  held  that  the  subject  of  the 
action  must  be  demisable,  and  that  the  plaintiff  must  have 
power  to  demise.3  On  the  other  hand  again  an  ejectment 
for  a  rectory  was  upheld. 4 

§51.  —  Introduction  of  equitable  principles  by  Lord 
Mansfield.  —  The  action  underwent  important  changes  in 
the  time  of  Lord  Mansfield,  who  declared 5  "  that  he  had 
it  at  heart  to  have  the  practice  upon  ejectments  clearly  » 
settled  upon  large  and  liberal  grounds  for  advancement  of  ; 
the  remedy."  But  he  brought  equitable  principles  into  the 
trial  of  this  action,  as  he  did  into  other  branches  of  the  law, 
and  favored  and  encouraged  ejectment  as  an  equitable  rem- 
edy, calculated  to  subserve  the  ends  of  individual  justice, 
rather  than  as  a  legal  action  governed  by  fixed  and  positive 
rules  and  principles.  The  judges  in  his  time  probably  felt 
at  liberty  to  exercise  an  equitable  jurisdiction  over  the 
remedy  as  applied  to  land  controversies  because  it  was 
peculiarly  their  own  creation.  Thus  a  fresh  ejectment  for 
the  same  lands  would  be  stayed  until  the  costs  of  a  former 
unsuccessful  action  had  been  paid.  6  A  mortgagee  was  per- 
mitted to  maintain  ejectment  against  a  tenant  claiming 
under  a  lease  granted  prior  to  the  mortgage,  where  he  gave 
notice  to  the  tenant  that  he  did  not  intend  to  disturb  the 
possession,  but  only  to  reach  the  rents  and  profits  of  the 
estate. 7  Nor  could  the  legal  estate  of  a  trustee  be  set  up 
against  the  cestui  que  trust, 8  and  an  agreement  for  a  lease 
was  held  tantamount  to  a  lease  as  a  defense  in  ejectment.9 
These  cases  have  been  overruled  in  England  and  in  the 
United  States. l  ° 

1  Wright  v.  Wheatley,  Cro.  Eliz.  854;  Ibgrave  v.  Lee,  Dyer,  116,  b. 
(71). 

2Barwick  v.  Fenwood,  Comb.  250. 

3  Adams  on  Ejectment   (4th  Am.  ed.),  p.  20   [18]. 

4  Doe  d.  Watson  v.  Fletcher,  8  B.  &  C.  25;  Hillingsworth  v.  Brewster, 
Salk.  256.     See  Wrotesley  v.  Adams,  Plowd.  187,  199. 

5Fairclaim  d.  Fowler  v.  Shamtitle,  3  Burr.  1290,  1295. 
'Doe  d.  Feldon  v.  Roe,  8  T.  R.  646;  Ralph,  Lessee,  v.  Ejector,  3  Ir. 
Law  Rec.  N.  S.  141. 

7  See  note  to  Keech  v.  Hall,  Doug.  21,  23. 

8  Bull.  N.  P.  110;  Doe  d.  Bristow  v.  Pegge,  1  T.  R.  758  n. 

9  Weakly  d.  Yea  v.  Bucknell,  Cowp.  473. 

10  See  Doe  d.  Hodsden  v.  Staple,  2  T.  R.  684,  per  Kenyon,  Ch.  J.; 
Watkins  v.  Holman,  16  Peters  25,  58. 


69.    SEDGWICK  $  WAIT:  EJECTMENT     635 

The  principles  and  practice  which  the  Court  of  King's 
Bench,  during  the  career  of  this  illustrious  judge,  sought 
to  impress  upon  the  remedy  have  been,  in  some  instances 
since  his  time,  introduced  by  statute.  The  common  law  has 
gained  fresh  vitality  and  enriched  qualities  from  the  trans- 
fusion of  equitable-  principles  into  it.  This  is  especially 
true  with  reference  to  the  remedy  of  ejectment. 

§  52.  —  Lord  Kenyon  established  the  action  upon  what 
the  common  law  student  would  consider  a  sounder  basis. 
Since  his  day,  when  not  otherwise  controlled  by  statute,  the 
courts  have  generally  held  that  the  plaintiff's  lessor  must 
establish  a  legal  title.  The  claimant  must  have  a  right  of 
entry,  for  if  he  made  the  lease  without  entering  on  the  land, 
it  was  maintenance,  and  though  in  the  modern  practice  an 
actual  entry  is  unnecessary,  yet  the  right  of  entry  must 
exist,  for  that  is  the  question  to  be  tried. 

§  53.  —  The  courts  have  generally  looked  beyond  the 
fictitious  form  of  the  action,  and  have  taken  judicial  notice 
that  the  real  controversy  is  between  adverse  claimants  to 
the  possession  of  land;  that  the  plaintiff's  lessor  and  the 
tenant  in  possession  (or  landlord,  if  he  be  made  defendant) 
are  the  real  parties  in  interest ; l  that  the  legal  title  must 
prevail,  and  that,  as  the  fictions  were  "  fabricated  for  the 
mere  purposes  of  justice,"  the  plaintiff  ought  not  to  be 
defeated  in  his  recovery  by  technical  or  captious  objections 
founded  on  the  peculiar  and  somewhat  technical  form  of  the 
action.  It  was  unnecessary  to  allege  of  the  day  of  the 
ouster.2  The  practice  became  common  to  allow  amendments 
enlarging  the  term  laid  in  the  declaration  when  it  expired 
pending  the  action,  Chief  Justice  Marshall  in  granting  such 
a  motion  remarking  that  there  was  "  every  reason  for  al- 
lowing amendments  in  matters  of  mere  form."  3  The  courts, 
recognizing  the  fictions  as  necessary  to  this  form  of  action, 
were  careful  to  see  that  no  wrong  or  prejudice  to  the  parties 

1  Aslin  v.  Parkin,  2  Burr.  665,  per  Lord  Mansfield.  See  note  to  Doe 
d.  Bailey  v.  Smyth,  Anthon's  Nisi  Prius,  242,  244. 

'Woodward  v.  Brown,  13  Peters  1. 

•Walden  v.  Craig,  9  Wheat.  576.  "Amendments  are  allowed  rather 
more  liberally  in  ejectments  than  in  other  actions."  Longfield  on  Eject- 
ment, p.  96. 


636          VIII.    PROPERTY  (IN  GENERAL) 

resulted  from  the  novel  character  of  the  procedure.1 
Though  ejectment  actions  were  in  point  of  form  pure  fic- 
tions, yet  in  substance  and  effect  they  were  "  serious  reali- 
ties." 2  Even  in  the  time  of  James  I  a  liberal  spirit  guided 
the  courts,  and  minute  technical  objections  to  the  entry  and 
ouster  were  disregarded.3 

§  54.  —  In  many  respects  the  rules  applicable  to  real 
actions  have  been  adopted,4  yet  the  principles  and  practice 
governing  personal  actions  have  been  in  some  instances  re- 
tained unmodified,  though  apparently  not  suited  to  the  new 
issue  raised.  Thus,  unless  some  statute  controls,  the  descrip- 
tion of  the  premises  need  not  be  much  more  certain  than 
in  an  ordinary  action  of  trespass.  The  plaintiff  may  also 
recover  a  part,  and  in  some  cases  an  undivided  portion,  of 
the  premises  for  which  he  declares. 

§  55.  —  The  action  is  now  divested  by  statute  of  all  its 
useless  forms.  The  fictitious  lease  and  ouster  have  been 
abolished,  and  the  real  parties  in  interest  appear  in  the  ac- 
tion as  the  nominal  parties ;  the  defendant  being  the  tenant 
or  person  in  possession,  or  the  landlord;  sometimes  even 
a  claimant  to  the  land  or  one  exercising  acts  of  ownership 
over  it. 


§  64.  —  Real  actions.  —  Real  or  feudal  actions  were  the 
ancient  remedies  by  which  the  right  of  property,  or  of  pos- 
session, in  freehold  estates  or  hereditaments  was  determined, 
and  the  seizin  recovered  or  possession  restored.5  The  com- 
plainant, or  party  deforced,  was  called  the  demandant ;  the 
defendant,  or  party  in  possession  the  tenant.  The  name 
real  action  was  used  in  contradistinction  to  personal  actions, 
founded  upon  tort  or  contract,  such  as  trover,  assumpsit, 

^resap's  Lessee  v.  Hutson,  9  Gill  (Md.)  274;  Warner  v.  Hardy,  6 
Md.  525. 

aCole  on  Ejectment,  p.  1. 

•Longfield  on  Ejectment,  p.  25;  citing  Adams  v.  Goose,  Cro.  Jac. 
96;  Tesmond  v.  Johnson,  Cro.  Jac.  428;  Osbourn  v.  Rider,  Cro.  Jac.  135; 
Brigate  v.  Short,  Cro.  Jac.  154;  Merrell  v.  Smith,  Cro.  Jac.  311. 

4Heatherley  d.  Worthington  v.  Weston,  2  Wils.  232;  Moore  v.  Furs- 
den,  1  Show  342;  Mantle  v.  Wellington,  Cro.  Jac.  166. 

6  See  §§2,  3,  5,  6. 


69.     SEDGWICK  $  WAIT:  EJECTMENT     637 

or  debt.  At  common  law,  in  purely  real  actions,  the  de- 
mandant counted  for  and  recovered  the  seizin  of  land,  or  an 
interest  in  realty,  and  rarely  proceeded  for  compensation 
in  damages  or  for  personal  property. l  The  right  to  recover 
damages  in  real  writs  was,  in  some  instances,  added  by  stat- 
ute. 

The  foundation  of  a  real  action  is  the  alleged  wrongful 
occupation  and  withholding  of  the  demandant's  land  by  the 
tenant. 2 

§  64a.  —  In  real  actions  the  demandant  claims  title  to 
lands,  tenements,  or  hereditaments,  in  fee  simple,  fee  tail, 
or  for  a  term  of  life, 3  by  writ  of  right,  entry,  etc.,  hence 
they  are  said  by  Blackstone  to  "  concern  real  property 
only."  Chief  Justice  Shaw  considered  that  the  terms  real 
and  personal  actions  were  not  used  in  the  statute  of  Massa- 
chusetts regulating  costs  in  the  sense  contemplated  by  the 
common  law,  and  as  defined  by  Blackstone.  He  said :  "  The 
broad  distinction  which  runs  throughout  the  statute,  is  that 
between  actions  in  which  rights  to  real  estate  may  be  brought 
in  question  and  tried,  and  those  which  affect  personal 
rights."4 

§  65.  —  Real  actions  were  classified  according  to  the  na- 
ture of  the  demandant's  title,  into  actions  droitural,  based 
upon  the  demandant's  mere  right  of  title  —  that  of  posses- 
sion being  lost  —  and  actions  possessory,  which  involved  the 
right  of  possession.  The  former  class  was  subdivided  into 
writs  droitural,  founded  upon  the  demandant's  own  seizin, 
and  writs  ancestral  droitural,  founded  upon  the  demandant's 
claim  in  respect  of  a  mere  right  which  had  descended  to 
him  from  an  ancestor.  Possessory  actions  were  likewise  sub- 
divided into  actions  founded  upon  the  demandant's  own 
seizin,  and  actions  predicated  upon  the  seizin  of  an  ancestor.5 


1  Booth  on  Real  Actions,  pp.  74,  75;  Pilford's  Case,  10  Rep.  115,  b. 
(5  Coke,  459);  Stearns  on  Real  Actions  (3d  ed.),  pp.  346  (389),  90 
(94) ;  Jackson  on  Real  Actions,  p.  99. 

*  Graves  v.  Amoskeag  Mfg.  Co.,  44  N.  H.  462. 

8  3  Bla.  Com.  117. 

4Plympton  v.  Baker,  10  Pick.  (Mass.)  474.    See  §§1,  64. 

"Roscoe  on  Actions  Relating  to  Real  Property,  p.  2;  Stearns  on  Real 
Actions  (2d  ed.),  p.  83  [84] ;  Markal's  Case,  6  Rep.  3  b.  (3  Coke,  264.) 


638          VIII.    PROPERTY  (IN  GENERAL) 

§  69.  —  Writs  of  right.  —  The  most  important  of  the  real 
writs  was  the  Writ  of  Right.1  This  writ  was  resorted  to  in 
the  time  of  the  Saxons  to  recover  the  right  of  property  in 
land ;  the  jus  proprietatis,  or  jus  merum.2  It  would  not  lie 
for  incorporeal  hereditaments,  or  for  any  estate  less  than  a 
fee  simple,3  and  was  the  exclusive  remedy  available  to  the 
owner  of  land  who  had  lost  the  right  to  recover  it  by  a  pos- 
sessory action.  The  judgment  was  final,  and  could  be 
pleaded  in  bar  of  a  fresh  suit  involving  the  same  contro- 
versy, because  no  other  writ  could  establish  any  different 
higher  or  additional  rights.  For  this  reason  a  writ  of  right 
was  rarely  selected  by  a  demandant  who  was  entitled  to 
prosecute  one  of  an  inferior  grade.4  The  tenant  in  this 
writ  might  give  in  evidence  the  title  of  a  third  person  for 
the  purpose  of  disproving  the  demandant's  seizin;  and  the 
demandant  was  permitted  to  recover  a  less  quantity  than 
the  entirety.5 

§  70.  —  Writs  of  entry.  —  Of  the  possessory  actions  writs 
of  entry  only  were  adopted  in  Massachusetts.6  These  were 
of  various  kinds,  according  to  the  nature  of  the  injuries  in- 
tended to  be  redressed,7  and  were*  supposed  by  Blackstone 
to  be  the  most  ancient  of  possessory  actions.  Whether  or 
not  all  the  writs  of  entry  were  ingrafted  into  the  law  of 
that  Commonwealth  is  a  moot  question  which  it  is  unnec- 
essary now  to  discuss.8  Mr.  Justice  Jackson  says,9  that 
writs  of  entry,  as  conducted  in  the  courts  of  his  State,  were 
considered  more  simple,  convenient  and  effectual  than  the 
action  of  ejectment;  the  writ  and  declaration  were  shorter; 
there  were  no  mysterious  fictions  to  incumber  the  record, 
and  the  judgment  effectually  settled  the  right  of  posses- 


*3  Bla.  Com.  p.  193;  Fitz.  N.  B.  1. 
2  Gil.  Ten.  [47].    See  Roscoe  on  Actions  Relating  to  Real  Property, 
p.  19. 

8  Jackson  on  Real  Actions,  p.  276;  Lyon  v.  Mottuse,  19  Ala.  463. 

4  Booth  on  Real  Actions,  p.  1.    For  distinction  between  a  writ  of  right 
patent  and  a  writ  of  right  close,  see  Liter  v.  Green,  2  Wheat.  311. 
6  Inglis  v.  Trustees  of  Sailor's  Snug  Harbor,  3  Pet.  99.     See  §  509. 

9  Jackson  on  Real  Actions,  p.  2. 

T  Roscoe  on  Actions  Relating  to  Real  Property,  p.  88. 

8  See  Judge  Jackson's  article  on  this  subject,  2  Am.  JUT.  p.  65. 

*  Jackson  on  Real  Actions,  p.  12. 


69.     SEDGWICK  #  WAIT:  EJECTMENT     639 

sion.  This  opinion  was  subsequently  approved  by  the  Massa- 
chusetts Commissioners.1 

An  equitable  estate,  we  may  here  observe,  will  not  sup- 
port a  writ  of  entry ; 2  and  consequently  a  party  sued  in 
this  writ  cannot  defend  against  the  legal  title  of  the  plain- 
tiff by  showing  that  he  has  purchased  and  paid  for  the  land, 
and  is  entitled  to  a  conveyance  of  the  legal  estate.3  The 
remedy  for  the  protection  of  an  equitable  interest  in  land 
is  by  bill  in  equity  and  not  by  writ  of  entry,4  or  action  at 
law.  In  Massachusetts  this  writ  may  issue  in  the  form  of 
an  original  summons  or  in  that  of  a  summons  and  attach- 
ment,5 and  can  only  be  maintained  against  a  tenant  of  the 
freehold.6 

§  71.  —  Writs  of  formedon.  —  Writs  of  formedon,  the  an- 
cient remedies  provided  for  any  one  having  a  right  to  lands 
or  tenements  by  virtue  of  a  gift  in  tail,7  were  not  infre- 
quent in  some  States.  A  writ  of  formedon  was  sometimes 
characterized  as  a  writ  of  right  of  an  inferior  character. 
As  late  as  1834  a  decision  was  rendered  in  an  action  of 
formedon  in  remainder  in  New  Hampshire,  in  which  the 
defense  of  a  common  recovery,  levied  in  1819,  was  learn- 
edly discussed  by  court  and  counsel.8  Writs  of  this  char- 
acter are,  however,  wholly  unsuited  to  try  titles  in  this 
country.  The  delays  and  abuses  produced  by  these  writs 
have  already  been  noticed. 9 



1  Report  of  the  Comrs.  to  Revise  the  General  Statutes  of  Mass. ;  Part 
3,  p.  154  n. 

'Chapin  v.  First  Universalist  Soc.,  8  Gray  (Mass.),  580,  per  Shaw, 
C.  J.;  Eastman  v.  Fletcher,  45  Me.  302.  Compare  s.  P.  in  Ejectment, 
Smith  v.  McCann,  24  How.  398;  Emeric  v.  Penniman,  26  Cal.  119;  Peck 
t>.  Newton,  46  Barb.  (N.  Y.)  173. 

8Ela  v.  Pennock,  38  N.  H.  154;  s.p.  Moody  v.  Fair,  33  Miss.  192;  but 
compare  Cutting  v.  Pike,  21  N.  H.  34T.  See  Chap.  XVIII. . 

4 Eastman  v.  Fletcher,  45  Me.  305;  s.p.  Houston  v.  Jordan,  35  Me. 
520;  Shaw  v.  Wise,  10  Me.  113. 

6  Wilbur  v.  Ripley,  124  Mass.  468. 

"Kerley  v.  Kerley,  13  Allen  (Mass.),  286.  See  Creighton  v.  Proctor, 
12  Cush.  (Mass.)  438. 

'Stearns  on  Real  Actions,  p.  321;  Booth  on  Real  Actions  (1st  Am. 
cd.),  p.  138. 

8  Frost  v.  Cloutman,  7  N.  H.  9. 

9  See  §  45.     The  writ  of  assize  once  so  popular  in  England  was  prob- 
ably introduced  during  the  reign  of  Henry  II.    Its  history  is  of  little 
practical  value  with  us. 


640  VIII.     PROPERTY  (IN  GENERAL) 

§  73.  —  Ejectment  in  New  England.  —  Ejectment  was  al- 
ready firmly  established  in  England,  as  the  most  simple  and 
expeditious  method  of  trying  controverted  titles,  when  our 
Atlantic  seaboard  was  colonized.  Yet  the  New  England 
colonists  seem  to  have  been  disinclined  to  transplant  and 
foster  the  remedy. 1  Possibly  this  is  attributable  to  the 
fact  that  every  word  of  the  declaration  by  which  the  action 
was  commenced  was  untrue.  The  stern  integrity  and  sim- 
plicity of  the  Puritans  did  not  relish  fictions.  Professor 
Stearns  says : 2  "  We  should  hardly  expect  them  to  resort 
to  the  indirect  method  of  making  a  lease  of  their  lands  in 
order  to  try  the  title.  And  as  to  the  confessing  a  lease,  an 
entry,  and  an  ouster,  which  never  had  any  existence  in  fact, 
they  seem  (as  we  should  naturally  expect)  to  have  regarded 
it  as  a  violation  of  truth,  and  therefore  wholly  inadmis- 
sible." 

This  feeling  of  aversion  to  ejectments  was  not  confined 
to  this  country,  for  we  find  it  written,  in  an  English  work 
of  reputation, 3  that  this  ingenious  and  dexterously  contrived 
proceeding  "  was  objectionable,  on  the  ground  that  fictions 
and  unintelligible  forms  should  not  be  used  in  courts  of 
justice;  especially  when  the  necessity  for  them  might  be 
avoided  by  a  simple  writ  so  framed  as  to  raise  precisely  the 
same  question  in  a  true,  concise,  and  intelligible  form." 

§  74.  —  The  inconclusiveness  of  the  judgment 4  also 
tended  to  render  ejectment  unsatisfactory.  Lands  in  the 
new  world  were  of  little  value,  and  scarcely  worth  the  trouble 
and  expense  of  a  sufficient  number  of  trials  to  justify  a  per- 
petual injunction  against  fresh  ejectments.  Furthermore 
equity  jurisprudence  had  scarcely  any  existence  in  colonial 
times,5  and  has  only  been  introduced  into  some  of  our  States 
by  legislation  of  recent  date.  Hence,  according  to  eminent 
authority,  only  two  fictitious  actions  of  ejectment  upon  the 
English  model  are  to  be  found  in  the  court  records  of  Massa- 

1  Ejectment  did  not  flourish  in  Virginia.  New  York  was  then  under 
control  of  the  Dutch. 

'Stearns  on  Real  Actions  (2d  ed.  1831),  p.  352  [396]   n. 

»Cole  on  Ejectment,  p.  2. 

*See  Chap.  XX. 

•1  Story's  Eq.  Jur.  §56  and  note. 


69.     SEDGWICK  $  WAIT:  EJECTMENT     641 

chusetts. l  The  commissioners  2  even  assert  that  "  the  action 
of  ejectment  has  never  been  in  use  "  in  that  State  "  for  the 
trial  of  titles." 

§  75.  —  But  the  adoption  of  the  intricate  system  of  real 
actions  as  practiced  in  England  was  wholly  impracticable. 
The  sources  of  information  available  to  the  colonists  concern- 
ing the  practice  were  few  and  imperfect;  many  of  the  real 
writs  were  wholly  unsuited  to  try  the  titles  by  which  the 
colonial  lands  were  held,  and  few  of  the  early  settlers  pos- 
sessed the  critical  skill  and  precision  in  practice  which  the 
successful  management  of  the  writs  exacted.3  Mistakes  and 
vexatious  delays  were  consequently  not  infrequent.  The 
colonists  were  not,  however,  "  bigoted  to  legal  forms."  They 
abruptly  departed  from  the  ancient  precedents  (intention- 
ally, however,  rather  than  from  ignorance,  as  the  result 
shows)  and  introduced  a  loose  and  irregular  system  of  plead- 
ing in  real  writs,  altering  and  adapting  the  process  and 
writs  so  as  to  satisfy  the  needs  and  requirements  of  settlers 
in  a  new  country.  The  English  system  of  real  actions  was 
transplanted  into  the  colonies  practically  divested  of  aid 
prayers,  vouchers,  protections,  parol  demurrers,  and  essoins, 
the  cumbersome  appendages  which  destroyed  it  in  England. 
Hence  we  have  in  our  jurisprudence  the  remarkable  anomaly 
of  a  system  of  feudal  remedies  which  the  mother  country 
abandoned  as  outgrown,  impracticable  and  useless,  "  rooted 
in  soils  that  never  felt  the  fabric  of  the  feudal  system." 

§  76.  —  The  attempt  was  made  to  retain  what  was  valu- 
able and  useful  of  the  system  and  to  reject  what  was  useless 
and  pernicious.4  The  ancient  process  and  forms  were  very 
little  regarded,  and  all  real  actions  were  called  by  the  gen- 


1  Stearns  on  Real  Actions  (2nd  ed.  1831),  p.  352  [396]. 

"Report  of  the  Commissioners  to  Revise  the  General  Statutes  of 
Mass.,  Part  3,  p.  154.  But  see  Hodgkins  v.  Price,  137  Mass.  15. 

8  "We  d°  n°t  intend  to  imply  that  American  lawyers  did  not  become 
familiar  with  real  writs.  The  following  cases  among  others  attest  the 
skill  that  was  early  acquired  in  this  branch  of  law  in  the  new  world. 
Green  v.  Liter,  8  Cranch,  229;  Green  v.  Watkins,  7  Wheat.  27;  Tnglis 
v.  Trustees  of  Sailor's  Snug  Harbor,  3  Peters,  133;  Barker  v.  Salmon, 
2  Met.  (Mass.)  32;  St.  Croix  v.  Sands,  1  Johns.  (N.Y.)  328;  Swift  v. 
Livingstone,  2  Johns.  Cas.  (N.Y.),  112;  Frost  v.  Cloutman,  7  N.  H.  9. 

•Stearns  on  Real  Actions  (2d  ed.),  p.  92  [97]. 


642  VIII.     PROPERTY  (IN  GENERAL) 

eral  name  of  actions  of  ejectment.1  Little  or  no  distinction 
was  made  either  in  the  declaration  or  the  pleadings  between 
the  different  writs  of  entry,  or  between  possessory  writs  and 
the  writ  of  right. 2 

§  77.  —  Though  this  loose  and  irregular  practice  was  un- 
doubtedly the  cause  of  many  mistakes  which  the  colonists 
made  in  determining  the  rights  of  litigants,  yet  had  they 
clung  to  the  established  forms,  and  sought  to  apply,  in  their 
practice,  the  mass  of  ancient  learning  relating  to  real  writs, 
the  system  would  necessarily  have  become  as  vexatious,  op- 
pressive, and  unpopular  as  in  England. 

§  78.  —  The  feeling  in  England  toward  the  system  of 
real  actions  is  reflected  in  the  report  of  the  English  real 
property  commissioners,  in  which  they  conclude  that  "  it 
would  have  been  beneficial  to  the  community  if  real  actions 
had  been  abolished  from  the  time  when  the  modern  action 
of  ejectment  was  devised."3 

§  79.  —  Modern  changes.  —  Statutory  real  actions  in  va- 
rious forms  are  employed  in  Maine  and  New  Hampshire. 
A  writ  of  entry,  sur  disseizin,  was  recognized  as  a  proper 
form  of  action  in  the  latter  State.4  Writs  of  right  and  of 
formedon  have  been  swept  away  in  Massachusetts  and  a 
statutory  writ  of  entry  adopted  as  the  remedy  for  trying 
titles  in  that  State.  The  final  judgment  rendered  on  this 
statutory  writ  is  a  complete  bar  to  a  writ  of  right  for  the 
same  lands  subsequently  prosecuted  in  the  federal  courts.5 
The  common  law  remedy  of  ejectment  for  the  recovery  of  a 
term,  though  rarely  used,  has  never  been  abolished  in  that 
commonwealth.6  The  entire  system  of  real  actions  is  super- 
seded in  New  York  by  a  statutory  action  of  ejectment.  In 
Rhode  Island  any  party  having  a  right  of  entry  may  bring 

1  Jackson  on  Real  Actions,  p.  194.     Prof.  Pomeroy  says  of  our  mod- 
ern statutory  ejectment  that  "  it  does  not  bear  the  slightest  resemblance 
to  the  action  of  *  ejectment'  as  that  was  contrived  by  the  old  judges 
and  lawyers,  and  only  confusion  and  misconception  result  from  apply- 
ing to  it  that  name."     Pomeroy's  Remedies,  etc.,  §  294. 

2  Jackson  on  Real  Actions,  p.  162. 

3  Report  of  English  Real  Property  Commissioners,  Vol.  1,  p.  42. 
*  Potter  v.  Baker,  19  N.  H.  166. 

6  Derby  v.  Jacques,  1  Cliff.  425. 

6Hodgkins  v.  Price,  137  Mass.  13;  Fay  v.  Taft,  12  Cush.  (Mass.) 
448;  Merrill  v.  Bullock,  105  Mass.  493. 


69.     SEDGWICK  $  WAIT:  EJECTMENT     643 

ejectment. l  In  Connecticut  the  writ  of  disseizin  is  not  a  ficti- 
tious remedy,  and  is  the  only  real  action  known  to  their  law, 
and  comprehends  "  all  the  actions  in  England,  by  writ  of 
right,  writ  of  entry  and  ejectment,  with  all  the  multifarious 
divisions  into  which  they  are  branched."  2  In  California  they 
have  technically  "no  action  of  ejectment."  There  is  said 
to  be  as  much  propriety  in  calling  the  action  in  that  State 
"  a  writ  of  entry  or  an  assize,  as  an  ejectment."  3  In  Vir- 
ginia writs  of  right,  of  entry,  and  of  formedon,  have  been 
abolished,  and  ejectment,  as  reformed  and  corrected  by 
statute,  retained.  In  that  State,  as  in  New  York  and  West 
Virginia,  the  statutory  ejectment  may  be  maintained  in  the 
same  cases  in  which  a  writ  of  right  could  have  been  brought. 
A  controversy  over  a  title  in  West  Virginia,  in  which  the 
parties  proceeded  by  a  writ  of  right,  was  decided  in  1868, 4 
but  the  system  of  real  actions  has,  since  that  date,  been  su- 
perseded in  that  State  by  statutory  ejectment.  The  influ- 
ence of  the  old  system  is  occasionally  reflected  in  the  opin- 
ions of  our  courts,  and  exerts  some  effect  in  framing  legis- 
lative changes  in  our  remedial  law,  but  the  general  system, 
with  most  of  its  peculiarities,  is  obsolete. 

§  80.  —  Trespass  to  try  title.  —  Injuries  affecting  real 
property  are  chiefly  of  two  classes.  First.  Those  that  divest 
the  owner  of  the  possession,  and  usurp  his  right  of  dominion 
over  the  property.  Secondly.  Those  that  injure  the  land, 
or  diminish  its  value,  or  disturb  or  impair  the  owner's  en- 
joyment of  it,  without  divesting  the  possession.  Trespass, 
waste  and  nuisance  are  examples  of  the  latter  class.  The 
former  injury,  which  is  attended  with  amotion  from  or  de- 
privation of  possession,  is  denominated  an  ouster,  and  has 
been  defined  to  be  "  a  wrongful  dispossession  or  exclusion 
of  a  party  from  real  property,  who  is  entitled  to  the  posses- 
sion." 5  This  elementary  principle  must  not  be  overlooked 


1McCann  v.  Rathbone,  8  R.  I.  297. 

2Crandall  v.  Gallup,  12  Conn.  371. 

"Caperton  v.  Schmidt,  26  Cal.  479,  496. 

4  Genin  v.  Ingersoll,  2  W.  Va.  558. 

8  Newell  v.  Woodruff,  30  Conn.  497.  See  Field  v.  Hawley,  126  Mass. 
327;  Towle  v.  Aver,  8  N.  H.  57;  Smith  v.  Burtis,  6  Johns.  (N.  Y.)  217. 
See  §93. 


644          VIII.    PROPERTY  (IN  GENERAL) 

in  considering  the  form  of  remedy  for  the  trial  of  title  to 
land  which  will  next  be  noticed. 

§  81.  —  Trespass  to  try  title  was  substituted  for  eject- 
ment in  South  Carolina  as  early  as  1791.  l  It  was  in  form 
an  action  of  trespass  quare  clausum  fregit,  except  that  a 
notice  was  indorsed  upon  the  writ  to  the  effect  that  the  action 
was  brought  to  try  the  title  as  well  as  for  damages.  This 
remedy  was  subject  to  the  principles  of  law  relating  to  eject- 
ment which,  down  to  that  time,  had  been  the  action  for  try- 
ing titles  to  land  in  that  State.2  There  were,  of  course,  no 
fictions  in  this  new  action,  and  the  names  of  the  real  parties 
appeared  as  plaintiff  and  defendant.3 

§  88.  —  The  plaintiff  was  compelled  to  prove  a  trespass 
committed  by  the  defendant  no  matter  how  trifling.  A  bare 
threat  made  on  a  rock,  the  title  to  which  was  in  controversy, 
to  prevent  the  plaintiff  from  fishing  there;  or  obstructing 
a  canoe  from  landing  upon  it,  was  said  to  be  enough  evidence 
to  support  the  action.  4  Even  the  cutting  or  blazing  of  a 
tree  was  held  sufficient.  5  The  judgment  was  in  form  for 
damages,  but  the  plaintiff,  if  successful,  was  entitled  to  a 
writ  habere  facias  possessionem.  The  reader  will  at  once 
discover,  aside  from  the  question  of  ouster,  the  close  resem- 
blance this  form  of  procedure  bore  to  ejectment  both  in  its 
nature  and  uses. 6 

§  83.  —  Manifestly  trespass  quare  clausum  fregit  was  a 
form  of  action  calculated  to  redress  injuries  to  real  property 
not  amounting  to  an  ouster.  This  remedy  as  enlarged  by 
statute  in  South  Carolina  under  the  name  of  trespass  to  try 
title  usurped  the  functions  and  subserved  the  purposes  of  a 
real  action.  While  evidence  of  a  slight  trespass  would  suffice 
to  raise  a  controversy  over  the  title,  yet  mesme  profits  could 
not  be  recovered  of  the  defendant  if  no  actual  eviction  took 
place,  but  only  a  technical  trespass  was  proved. 

*Stat.  at  Large,  S.  C.  vol.  V,  p.  170;  since  repealed.  See  Chapter 
147,  Revised  Statutes,  1873,  p.  801. 

2  Kennedy  v.  Campbell,  2  Const.  Rep.  (S.C.)  760. 

3 Lynch  v.  Withers,  2  Bay  (S.  C.),  115-119,  in  noils. 

*Massey  v.  Trantham,  2  Bay  (S.  C.),  421;  Ur/derwood  v.  Sims,  2 
Bailey  (S.C.),  Law,  81. 

"Spigener  v.  Cooner,  8  Rich.  (S.  C.),  Law,  301 

6  See  §§15,  19,  39,  40. 


69.     SEDGWICK  $  WAIT:  EJECTMENT     645 

§  84.  —  The  result  achieved  by  the  use  of  fictions  in  eject- 
ment in  England,  after  many  years  of  effort,  was  accom- 
plished summarily  in  South  Carolina  by  a  simple  statutory 
enactment.  Why  the  English  Parliament  and  the  legisla- 
tures of  other  States  of  our  Union  did  not  enact  statutes 
somewhat  similar  in  character,  substituting  ouster  for  tres- 
pass, and  at  a  single  stroke  demolish  real  writs  and  the  fic- 
tions in  ejectment  is  a  mystery. 

§  85.  —  The  Legislature  of  South  Carolina  solemnly  ra- 
solved,1  as  a  justification  for  the  change,  that  "  since  the  dis- 
use of  real  actions,  the  common  method  of  trying  the  title 
to  lands  has  been  by  action  of  ejectment,  which,  depending 
upon  a  variety  of  legal  fictions,  is  rarely  understood  but  by 
professors  of  the  law."  Still,  the  name  of  the  new  remedy, 
and  the  practice  requiring  proof  of  a  trespass,  which  cer- 
tainly had  no  logical  or  necessary  connection  with  the  trial 
of  the  title,  occasioned  some  confusion. 

§  86.  —  The  writ  of  right  was  never  employed  in  South 
Carolina,2  and  the  profession  seem  to  have  shunned  the 
whole  system  of  real  actions.  If  the  "  variety  of  legal  fic- 
tions "  in  ejectment  was  incomprehensible  to  the  profession 
in  South  Carolina,  it  is  certainly  easily  understood  why  no 
effort  was  made  to  utilize  real  writs. 

§  87.  —  Trespass  to  try  title  has  at  length  been  swept 
away  in  South  Carolina,  and  an  action  for  the  recovery  of 
real  property  substituted  in  its  stead.3 

The  essential  principles  governing  real  actions,  ejectment, 
and  trespass  to  try  title,  are  uniform  in  this  country  as  to 
the  interests  for  which  the  actions  will  lie,  the  titles  that  will 
support  them,  the  pleadings,  evidence,4  defences,  judgments, 
writs  of  possession,  and  new  trials.  They  constitute  practi- 
cally one  general  method  of  procedure  disguised  under  a 
variety  of  names.  For  this  reason  cases  decided  under  the 
different  systems  will  generally  be  cited  side  by  side  in  this 
treatise. 

^tat.  at  Large,  S.  C.  vol.  V,  p.  170,  §4. 
'Frost  ads.  Brown,  2  Bay  (S.C.),  133-144. 

•Revised  Statutes  South  Carolina  (ed.  1873),  p.  586;  Ibid,  chap.  147, 
p.  801.  *  Greenl.  on  Ev.  vol.  2,  §  303,  p.  286. 


70.     THE  GAGE  OF  LAND  IN  MEDIAEVAL 
ENGLAND  l 

BY  HAROLD  DEXTER  HAZELTINE  2 

ECONOMIC  and  legal  development  in  England  is,  in  cer- 
tain of  its  grand  outlines,  strikingly  illustrated  by  the 
history  of  forms  of  security  on  property.     One  sees  in  Eng- 
land the  gradual  advance  from  a  natural  to  a  money  and 

xThis  Essay  was  first  published  in  the  Harvard  Law  Review  (1903-4),. 
vol.  XVII,  pp.  549-557,  vol.  XVIII,  pp.  36-50. 

NOTE:  The  author  regrets  that,  owing  to  pressure  of  other  work,  he 
has  not  had  time  to  revise  and  recast  the  present  essay.  He  desires 
therefore  to  mention  the  fact  that  in  his  more  recently  published 
Geschichte  des  englischen  Pfandrechts  he  has  adopted  a  terminology 
slightly  different  from  that  employed  in  his  Englisches  Mobiliarpfand- 
recht  im  Mittelalter  and  in  the  present  essay.  Instead  of  classifying 
the  various  forms  of  security  on  property  under  the  headings  "  usufruct- 
gage  (Nutzpfand)"  and  "property-gage  (Proprietaetspfand)"  the  au- 
thor has  in  his  later  work  grouped  the  various  species  of  gage  under 
the  generic  names  "usufruct-gage  (Nutzpfand)"  and"  " substance-gage- 
(Substanzpfand) ."  Under  "substance-gage  (Substanzpfand)"  the  au- 
thor has  included  all  forms  of  security  where  the  res  itself,  as  distin- 
guished from  the  mere  rents  and  profits  arising  from  the  res,  is  to  be 
viewed  as  gaged  for  the  debt.  The  term  "substance-gage  (S^ubstanz^ 
pfand)"  corresponds  therefore  to  the  term  "property-gage  (Proprie- 
taetspfand)  "  as  the  latter  term  was  employed  in  the  earlier  essays. 
In  the  Geschichte  des  englischen  Pfandrechts  the  term  "  property-gage 
(Proprietaetspfand)"  has  been  restricted  to  forms  of  security  where 
there  is  a  conditional  conveyance  of  the  proprietary  right  as  distinct, 
for  example,  from  forms  where  the  creditor  is  given  a  mere  power  of 
sale. 

2  Reader  in  English  Law  in  the  University  of  Cambridge,  since  1907; 
Lecturer  in  Law  at  Emmanuel  College,  Cambridge,  since  1906,  and 
Fellow  of  Emmanuel  College,  since  1908.  A.  B.  Brown  University,  1894; 
LL.  B.  Harvard  University,  1898;  J.  U.  D.,  Berlin  University,  1905; 
Hon.  M.  A.,  Cambridge  University,  1906.  Lecturer  in  the  Law  School 
of  the  University  of  Chicago,  1906.  Professor  of  Law  in  the  University 
of  Wisconsin,  1908. 

Other  Publications:  Appeals  from  Colonial  Courts  to  the  King  in 
Council  (Proceedings  of  the  American  Historical  Association),  1894; 
Englisches  Mobiliarpfandrecht  im  Mittelalter  (Sonderabdruck  aus  der 
Festgabe  fur  Hiibler),  Berlin,  1905;  Zur  Geschichte  der  Eheschliessung 
nach  angelsachsischem  Recht.  Berlin,  1905;  The  Exchequer  of  the  Jews 
(Law  Quarterly  Review,  XVIII,  pp.  305  et  seq.),  1906;  Die  Geschichte 


70.     HAZELTINE:   GAGE  OF  LAND          647 

credit  economy,  the  progress  from  the  rural  and  agricul- 
tural life  of  Anglo-Saxon  times  to  the  town  and  national 
life,  with  its  industry  and  its  commerce,  of  the  centuries  that 
follow  the  coming  of  the  Danes  and  the  Normans.  A  heathen 
and  tribal  society  gives  way  to  Christian  and  to  feudal  in- 
stitutions; and  at  the  same  time  there  is  early  developed 
a  strong  kingship,  a  strong  central  government,  that  is 
to  influence  in  a  masterful  way  the  course  of  economic  and 
legal  history  down  to  our  own  day.  Acting  as  a  check 
on  the  growth  of  local  custom  and  of  feudal  justice,  and 
making  the  towns  subserve  its  own  economic  purposes,  this 
powerful  central  government  has  its  foreign  and  commercial 
policy  and  its  system  of  Common  Law  and  Equity,  with 
the  good  right  arm  of  judicial  execution  to  enforce  the 
decrees  of  its  courts. 

Unless  we  err,  the  English  law  of  gage,  like  the  law  of 
other  Germanic  countries,  starts  from  the  conception,  in  the 
Anglo-Saxon  days  of  barter  and  self-help,  that  the  wed  or 
vadium  delivered  to  the  gagee  is  a  provisional  satisfaction, 
a  provisional  payment,  a  redeemable  forfeit.  The  res  and 
the  claim  are  regarded  as  equivalent ;  and,  should  the  gagor 
not  redeem,  the  gagee  must  look  exclusively  to  the  res  for 
satisfaction.  The  gagee  has  no  personal  action  against  the 
gagor ;  and  the  gagor,  should  he  fail  to  redeem  the  res, 
has  no  right  to  the  surplus,  if  the  res  be  worth  more  than 
the  amount  of  the  gagee's  claim.  This  forfeit-idea  is  the 
original  idea  underlying  the  wed,  and  this  conception  per- 
sists. In  course  of  time,  with  the  development  of  credit  and 
of  judicial  execution,  of  varieties  of  obligation  and  of  forms 
of  action  for  their  enforcement,  there  branch  off  two  other 
ideas:  (1)  the  idea  that  a  res  of  trifling  value  may  be 
given  as  a  binding  contractual  form,1  and  this  at  length 
develops  in  the  English  ecclesiastical  courts  into  the  formal 
contract  by  pledge  of  faith;  and  (2)  the  idea  that,  if  the 

des  englischen  Pfandrechts  (No.  92  in  Gierke's  Untersuchungen  zur 
deutschen  Staats-  und  Rechtsgeschichte,  Breslau),  1907;  Notice  of  an 
Early  Year-Book  MS.  (James,  Descriptive  Catalogue  of  the  Manu- 
scripts in  the  Library  of  Gonville  and  Caius  College,  Vol.  II,  Cam- 
bridge, 1908);  Early  History  of  Specific  Performance  of  Contract  in 
English  Law  (Festgabe  fiir  Kohler,  Stuttgart,  1909). 
1C/.  Thayer,  Evidence  at  the  Common  Law  393. 


648  VIII.     PROPERTY   (IN  GENERAL) 

res  be  of  substantial  value,  it  is  merely  a  collateral  security 
to  a  personal  claim,  the  gagee  being  entitled  to  sue  the 
gagor  personally  and  the  gagor  having  a  right  to  call  the 
gagee  to  account  for  the  surplus.1  Along  with  this  trans- 
formation of  the  primitive  forfeit  notion  into  the  idea  of 
collateral  security  there  is  another  line  of  development  that 
must  be  most  carefully  distinguished  therefrom.  Inasmuch 
as  the  early  gage  transaction  is  merely  a  provisional  pay- 
ment, the  property  right  of  the  gagee  on  default  lacks  the 
Auflassung,  the  quit-claim,  the  final  abandonment  of  all  right 
in  the  res  that  is  in  Germanic  law  necessary  to  a  complete 
and  absolute  title.  The  gagee  cures  this  defect  by  going 
into  court  and  getting  the  court  to  declare  his  title  abso- 
lute; and,  later,  by  getting  the  gagor  in  advance  to  put 
a  resignatio-clause  in  the  deed  itself.  By  such  a  clause, 
however,  the  gagee  evades  the  obligation  that  the  law  has 
at  length  imposed  upon  him  of  returning  the  surplus ;  and 
the  law  enters  and  forbids  this  evasion.2 

It  lies  beyond  the  scope  of  the  present  paper  to  prove, 
by  a  discussion  of  English  texts,  that  this  has  been  the 
course  followed  by  our  own  law.  Keeping  in  mind,  however, 
the  outlines  of  this  general  Germanic  development,  we  wish 
merely  to  distinguish  as  clearly  as  possible  the  various  forms 
assumed  by  the  English  medieval  gage  of  land.  A  con- 
sideration of  the  many  difficult  questions  connected  with  the 
law  of  securities  on  land,  not  only  in  its  historical  develop- 
ment, but  also  in  its  present-day  application  to  concrete 
cases  that  come  before  the  courts,  will,  it  is  believed,  be  ren- 


1On  Schuld  and  Haftung  compare  von  Amira,  Nordgermanisches 
Obligationenrecht  (Altschwedisches  Obligationenrecht  [1882])  22-42, 
and  (Westnordisches  Obligationenrecht  [1895])  56  et  seq.;  2  Brinz,  Pan- 
dekten  (1879)  1  et  seq.  See  also  1  Chironi,  Trattato  dei  privilegi,  delle 
ipoteche  e  del  pegno  (1894)  1  et  seq. 

a  For  the  details  of  this  view  of  the  Germanic  development  in  gen- 
eral, but  without  a  consideration  of  the  English  texts,  see  2  Heusler, 
Institutionen  des  deutschen  Privatrechts  128-153,  225-250;  Wigmore, 
The  Pledge-Idea,  10  Harv.  L.  Rev.  321-341  (citing,  in  his  discussion 
of  the  historical  significance  of  the  "release"  and  "quit-claim,"  Pro- 
fessor Ames'  essays  on  Disseisin,  3  Harv.  L.  Rev.  23,  313,  327,  unfor- 
tunately not  accessible  to  the  present  writer  during  the  preparation 
of  this  article).  Compare  also  Wigmore,  The  Pledge-Idea,  11  Harv. 
L.  Rev.  29. 


70.     HAZELTINE:   GAGE  OF  LAND          649 

dered  all  the  easier  by  such  a  preliminary  survey,  rapid  and 
inadequate  though  it  be. 

It  helps  to  make  the  various  medieval  forms  stand  out 
sharply,  if  we  group  them  into  gages  with  immediate  pos- 
session of  the  creditor,  and  gages  with  possession  of  the 
debtor  until  default ;  and  this  is  indeed  but  the  fundamental 
distinction  that  underlies  the  fiducia  or  the  pignus  and  the 
hypotheca  of  Roman  law,1  the  aeltere  Satzung  and  the  juen- 
gere  Satzung  of  German  law,2  the  engagement  and  the 
obligation  of  French  law.3 

Then,  looking  at  execution  or  the  enforcement  of  the 
security,  we  may  make  several  further  distinctions.  If  we 
adopt  for  the  moment  —  and  it  will  tend  to  clearness  —  the 
terminology  of  German  legal  science,  we  may  classify  Eng- 
lish forms  of  security  on  land  with  immediate  possession 
of  the  creditor  as  usufruct-gage  (Nutzpfand)  and  as  prop- 
erty-gage (Proprietaetspfand).  In  forms  of  usufruct-gage 
the  creditor  has  merely  a  right  to  take  the  rents  and  profits. 
In  forms  of  property-gage  the  res  itself,  either  by  forfeiture 
or  by  sale,  may  be  made  to  answer  the  claim  of  the  creditor ; 
if  by  forfeiture,  whatever  the  value  of  the  land  may  be,  we 
may  call  the  security  a  forfeiture-gage  (V  er  f alls  p fond), 
and  if  by  sale,  with  a  return  of  the  surplus  proceeds  to 
the  debtor,  the  security  may  be  designated  as  a  sale-gage 
(Verkaufspfand).  There  may  indeed  be  combinations  of 
the  usufruct-gage  and  the  property-gage;  and  every  prop- 
erty-gage with  immediate  possession  of  the  creditor  neces- 
sarily involves  a  temporary  usufruct-gage,  a  right  to  take 
the  rents  and  profits  until  the  debtor's  default.4  Speaking 
now  only  for  the  English  medieval  law,  we  believe  that  gages 
where  the  debtor  remains  in  possession  until  default  may  also 
be  classified,  according  to  this  same  principle,  as  usufruct- 

^ee  1  Dernburg,  Pfandrecht  1-95. 

•See  von  Meibom,  Das  deutsche  Pfandrecht;  Brunner,  Grundziige 
der  deutschen  Rechtsgeschichte  188-191. 

•See  Franken,  Das  franzosische  Pfandrecht  im  Mittelalter  1-36; 
Viollet,  Histoire  du  droit  civil  francais  (1893)  733-748. 

4  On  the  medieval  law  on  the  continent  see  especially  Franken,  Das 
franzosische  Pfandrecht  im  Mittelalter  207,  208;  and  Brunner,  Grund- 
ziige der  deutschen  Rechtsgeschichte  188-191.  Compare  also  Beauchet, 
Histoire  de  la  propri6te"  fonciere  en  Suede  (1904)  424  et  seq. 


650  VIII.     PROPERTY   (IN  GENERAL) 

gage  and  as  property-gage.  In  other  words,  whether  the 
creditor  take  possession  immediately  or  only  on  the  debtor's 
default,  what  the  debtor  has  in  reality  gaged  are  either  the 
rents  and  profits  of  the  land  or  the  property,  the  res,  itself. 
Finally,  from  these  forms  of  security  proper,  where  the 
creditor's  claim  may  be  satisfied,  in  one  way  or  another,  out 
of  the  gaged  land,  we  may  sharply  distinguish  cases  where 
all  the  right  the  creditor  has  is  to  hold  the  land  as  a  dis- 
tress, as  a  simplex  namium,  as  a  means  of  bringing  compul- 
sion to  bear  on  the  debtor ;  for  here  the  creditor  has  no 
right  to  take  the  fruits  of  the  land  and  no  right  to  obtain 
the  land  itself,  either  on  the  principle  of  forfeiture  or  of 
sale.  Let  us  first  examine  briefly  the  gage  with  immediate 
possession  of  the  creditor  and  then  pass  on  to  the  gage  with 
possession  of  the  debtor. 

I 

Forms  of  security  on  land  with  immediate  possession  of 
the  creditor  are,  then,  either  usufruct-gage  or  property- 
gage  ;  or,  indeed,  combinations  of  the  two. 

Both  the  usufruct-gage  and  the  property-gage  are  found 
in  the  law  of  the  Anglo-Saxon  period ;  *  but  it  is  with  the 
law  of  the  centuries  succeeding  the  Norman  Conquest  that 
we  are  here  concerned. 

The  usufruct-gage  assumes  two  forms,  the  form  depend- 
ing upon  the  use  that  is  made  of  the  rents  and  profits  taken 
by  the  gagee  while  the  land  is  held  by  him.  The  transaction 
is  a  vivum  vadium  if  the  parties  agree  that  the  rents  and 
profits  shall  reduce  the  debt.  The  transaction  is  called  a 
mortuum  vadium  if,  on  the  other  hand,  the  rents  and  profits 
do  not  reduce  the  debt  itself,  but  are  taken  in  lieu  of  in- 
terest.2 

Glanvill  states  positively  that  the  vivum  vadium  is  a  valid 

1See  Brunner,  Zur  Rechtsgeschichte  der  romischen  und  germanischen 
Urkunde  194-198;  Kohler,  Pfandrechtliche  Forschungen  95,  96.  Com- 
pare Lodge,  The  Anglo-Saxon  Land  Law  (Essays  in  Anglo-Saxon  Law 
106,  107). 

2  Glanvill,  X.  6,  8.  Compare  1  Bobbins,  Law  of  Mortgages  (1897) 
1-5;  Fisher,  Law  of  Mortgage  (1897)  4-7;  3  Gray,  Cases  on  Property 
411,  n.  1.  The  English  vivum  vadium  corresponds,  therefore,  to  the 
German  Todsatzung  and  the  English  mortuum  vadium  to  the  Gei 
Zinssatzung. 


70.     HAZELTINE:    GAGE  OF  LAND          651 

transaction;  and  apparently  he  means  also  that  the  king's 
court  enforces  the  terms  of  the  mortuum  vadium.  The  Chris- 
tian creditor,  however,  commits  a  sin  in  entering  into  a 
contract  of  mortuum  vadium  because  it  is  a  sort  of  usury; 
and  if  he  dies  before  the  contract  comes  to  an  end,  he  dies 
as  a  sinner  and  his  chattels  are  forfeited  to  the  king.  To 
all  seeming  the  mortuum  vadium,  sinful  though  it  be,  is  the 
usual  contract  of  the  thirteenth  century  both  for  Christian 
and  for  Jew  alike.1 

From  the  usufruct-gage  proper  must  be  distinguished  the 
so-called  "  beneficial  lease,"  a  lease  for  years  purchased  out- 
right for  a  sum  of  money.  This  latter  transaction  serves 
in  the  twelfth  and  thirteenth  centuries  two  important  eco- 
nomic ends :  It  provides  the  lessor  with  ready  money,  and  it 
provides  also  a  form  of  investment  of  capital  that  enables 
the  lessee  to  speculate  on  the  return  of  his  money  with  in- 
terest out  of  the  profits  of  the  land.  There  is  here  no 
gage  in  the  sense  of  a  security  for  some  personal  claim, 
because  there  is  no  debt.  For  the  same  reason  there  is  no 
usury,  and  in  an  age  when  usury  is  a  sin  and  when  the  goods 
of  the  usurer  who  dies  in  his  sins  are  forfeited  to  the  king, 
the  beneficial  lease  is  popular.  The  one  who  invests  his 
money  in  a  beneficial  lease  has  too  the  termer's  possessory 
protection ;  and  at  the  end  of  the  term  the  land  goes  back 
to  the  lessor.2 

Coke  discusses  the  vivum  vadium  of  his  day  as  a  form 
of  security  where  "  neither  money  nor  land  dieth,  or  is 
lost " ; 3  and  in  modern  law  the  principle  of  the  usufruct- 
gage  underlies  the  "  Welsh  mortgage  "  and  "  securities  in  the 
nature  of  Welsh  mortgages."  In  these  modern  gages  the 
fruits  of  the  land  may  be  taken  in  lieu  of  interest  only  or 
in  reduction  of  both  principal  and  interest. 4 

'Glanvill,  X.  8;  2  Pollock  and  Maitland,  Hist.  Eng.  Law  (1898) 
119.  The  principle  of  the  vivum  vadium  is  found  in  Madox,  Formulare, 
No.  CXLII.  Compare  Round,  Ancient  Charters,  No.  56. 

2  2  Pollock  and  Maitland,  Hist.  Eng.  Law  111,  112,  117,  121,  122. 
Compare  the  Rentenkauf  of  the  German  Middle  Ages.  1  Heusler, 
Institutionen  des  deutschen  Privatrechts  338,  355,  375,  2  idem  150-153. 

8  Co.  Lit.  205a. 

4  See  1  Robbins,  Law  of  Mortgages  (1897)  1-31;  Pollock,  Land  Laws 
(1896)  133. 


652  VIII.     PROPERTY   (IN  GENERAL) 

The  property  gage  of  the  Middle  Ages  is  forfeiture- 
gage.  It  assumes  two  main  forms:  (1)  either  the  gagee 
who  is  given  immediate  possession  must  wait  until  default 
of  the  debtor  before  he  can  acquire  proprietary  right;  or, 
(2)  the  gagee  is  given  proprietary  right  at  once,  though 
under  the  condition  that,  if  the  debt  be  paid  at  a  certain 
day,  the  proprietary  right  of  the  gagee  shall  then  come 
to  an  end.  In  either  case  default  of  the  debtor  results  in 
immediate  or  ultimate  forfeiture  of  the  gaged  land  itself, 
whatever  may  be  its  value,  in  satisfaction  of  the  debt. 

The  first  of  these  two  varieties  of  the  forfeiture-gage  seems 
to  be  the  usual  form  in  the  days  of  Glanvill  and  Bracton. 

Glanvill,  in  the  tenth  book  of  his  treatise,  is  apparently 
discussing  several  forms  of  gage  and  combinations  of  these 
forms.  The  usufruct-gage  may  be  vivum  vadium  or  mortuum 
vadium;  but  to  such  a  transaction  there  may  be  added  the 
possibility  that  the  land  itself  be  forfeited. 

The  gage  may  be  given  for  a  term,  and  in  such  a  case 
the  parties  may  or  may  not  include  a  clause  of  forfeiture 
in  their  contract.  If  they  include  such  a  clause,  this  ex- 
press bargain  must  be  strictly  adhered  to ;  this  bargain 
being  that,  if  at  the  end  of  the  fixed  term  the  debtor  do 
not  pay  his  debt,  the  gaged  land  shall  then  become  at  once 
the  property  of  the  creditor,  to  be  disposed  of  as  he  wishes.1 
Here  no  judgment  of  the  court  is  necessary.  By  operation 
of  {he  clause  of  forfeiture,  the  gagae  becomes  suddenly 
seised  in  fee,  with  the  freeholder's  rights  and  remedies.  On 
the  other  hand,  the  contract  may  contain  no  such  clause 
of  forfeiture;  and  here  the  creditor  must  go  into  court 
and  there  must  be  certain  legal  proceedings  before  the  gaged 
land  can  be  forfeited  to  him  for  the  debt.  These  proceedings 
are  as  follows :  When  the  debtor  fails  to  pay  at  the  end  of 
the  term,  the  creditor  must  sue  him.  The  debtor  is  then 
compelled  to  appear  in  court  in  answer  to  a  writ  ordering 
him  to  "  acquit  "  or  redeem  the  gage.  Once  in  court  the 
debtor  will  either  confess  or  deny  the  fact  of  gaging  the 

1  Glanvill,  X.  6.  See  also  1  Spence,  Equitable  Jurisdiction  (1846) 
600,  601;  Chaplin,  Story  of  Mortgage  Law,  4  Harv.  L.  Rev.  8;  2  Pol- 
lock and  Maitland,  Hist.  Eng.  Law  120. 


70.     HAZELTINE:   GAGE  OF  LAND          653 

land  for  the  debt.  If  he  confess  it,  he  has  thus,  says  Glanvill, 
confessed  the  debt  itself;  and  he  is  ordered  by  the  court 
to  redeem  the  gage  within  a  "  reasonable  "  time  by  payment 
of  the  debt,  the  court  at  the  same  time  declaring  that,  in 
case  of  default  in  payment  at  the  end  of  this  new  period, 
the  gaged  thing  itself  shall  become  the  property  of  the 
gagee  and  thus  forfeited  for  the  debt.  Should,  however, 
the  debtor  deny  the  gage  for  the  debt,  he  may  then  acknowl- 
edge that  the  land  in  question  is  his  property  and  offer 
some  excuse  for  its  being  in  the  possession  of  the  other  party. 
Should  he  confess  in  court  that  the  land  is  not  his  prop- 
erty, the  creditor  is  at  once  allowed  by  the  court  to  dis-< 
pose  of  it  as  his  own.  If  the  debtor  assert  that  the  property 
in  question  is  his  own,  but  deny  both  the  gage  and  the 
debt,  the  creditor  must  then  prove  both  the  debt  and  the 
gage  of  the  specific  property  in  dispute  for  this  debt.1 

If  now  the  gage  be  given  indefinitely  or  without  a  term, 
the  creditor  may  at  any  time  demand  the  debt.  Apparently 
this  means  that  the  creditor  can  at  any  time  go  into  court 
and  get  a  judgment  ordering  the  debtor  to  redeem  within 
some  fixed  and  reasonable  period;  the  court  at  the  same 
time  declaring  that,  if  the  debtor  fail  to  do  this,  the  creditor 
may  do  anything  he  pleases  with  the  gaged  land,  that  is,  that 
the  land  will  on  default  be  forfeited.  2 

Unless,  therefore,  the  parties  stipulate  that  the  gage  shall 
be  a  pure  usufruct-gage,  we  see  that,  whether  the  gage  be 
for  a  term  or  without  a  term,  and  whether  the  contract  con- 
tain the  forfeiture-clause  or  not,  the  gaged  land  may  be  for- 
feited for  the  debt ;  the  gage  thus  assuming  the  form  of  prop- 
erty-gage. 

The  possession  of  the  gagee  is  called  seisina,  a  seisina  ut 
de  vadio,  but  it  is  quite  unprotected  by  any  legal  remedy. 
The  gagor  remains  seised  of  his  freehold,  and,  should  some 

1  Glanvill,  X.  6-8.     On  the  burden  of  proof  see  Chaplin,   Story  of* 
Mortgage  Law,  4  Harv.  L.  Rev.  9. 

2  Glanvill,  X.  8;  2  Pollock  and  Maitland,  Hist.  Eng.  Law  120.     On 
the  equitable  nature  of  certain  features  of  this  procedure  in  the  king's 
court  and  their  similarity  to  the  "equity  of  redemption"  and  "decree 
of  foreclosure  "  in  the  courts  of  equity  at  a  later  day,  see  Chaplin,  Story 
of  Mortgage  Law,  4  Harv.  L.  Rev.  9,  10;  2  Pollock  and  Maitland,  Hist. 
Eng.  Law  120. 


654  VIII.     PROPERTY   (IN  GENERAL) 

third  person  unjustly  turn  the  gagee  out  of  the  land,  it  is 
the  gagor  who  has  the  right  to  bring  the  possessory  action 
of  Novel  Disseisin.  The  gagor,  not  the  gagee,  has  indeed 
been  disseised.  Furthermore,  if  the  gagor  himself  eject  the 
gagee,  the  latter  still  has  no  remedy  by  which  he  can  recover 
possession.1 

Glanvill  explains  this  by  saying  that  what  the  creditor 
really  has  a  right  to  is  not  the  land,  but  the  debt  itself ;  and 
that,  if  ejected  by  the  gagor,  the  gagee  should  bring  an 
action  of  Debt,  the  court  compelling  the  debtor  to  make  sat- 
isfaction. This  argument  is,  however,  unsatisfactory ;  and 
the  real  reason  why  the  gagee  is  not  given  possessory  protec- 
tion is  to  be  sought  elsewhere.  As  pointed  out  by  Pollock 
and  Maitland,  the  king's  justices  in  the  time  of  Glanvill  are 
experimenting  with  the  new  possessory  actions.  They  are 
agreed  that  the  freeholder  shall  have  the  assize  of  Novel  Dis- 
seisin ;  but  they  are  not  quite  sure  whether  the  gagee  really 
and  truly  has  a  seisma  that  calls  for  protection.  Influenced 
perhaps  by  theories  of  the  Italian  glossators  as  to  possessory 
protection,  they  end  in  refusing  the  gagee  a  remedy.2 

As  soon  as  the  debt  be  discharged  or  payment  properly 
tendered,  the  gagee  is  under  the  duty  of  giving  up  possession 
to  the  gagor;  and,  should  the  gagee  maliciously  retain  pos- 
session, the  gagor  may  summon  him  into  court  by  writ.  If 
it  be  determined  that  the  land  is  held  as  a  gage  and  not  in 
fee,  it  must  be  given  up  to  the  gagor.3 

The  creditor  may  enforce  his  personal  claim  by  bringing 
the  action  of  Debt.  His  right  to  the  gage  on  default  may 
be  enforced  by  the  foreclosure  procedure  we  have  just  dis- 
cussed. 4 

To  all  seeming  the  Glanvillian  gage  soon  becomes  obsolete 
owing  to  the  failure  of  the  king's  court  to  protect  the  gagee's 
seisma  ut  de  vadio;  and  indeed  the  attempt  to  treat  the 
gagee's  rights  in  the  land  as  rights  of  a  peculiar  nature  is 

1  Glanvill,  X.  11,  XIII.  28,  29;  2  Pollock  and  Maitland,  Hist.  Eng. 
Law  120,  121.     See  further  Chaplin,  Story  of  Mortgage  Law,  4  Harv. 
L.   Rev.  6,   7. 

2  Glanvill,  X.  11;  2  Pollock  and  Maitland,  Hist.  Eng.  Law  120,  121. 
See  Bracton,  f.  268. 

*  Glanvill,  X.  6,  8-10,  XIII.  26-30. 
4Glanvill,  X.  6-8,  11,  12. 


70.     HAZELTINE:    GAGE  OF  LAND          655 

soon  given  up,  the  gagee  being  now  given  some  place  among 
the  tenants. l 

In  the  age  of  Bracton  the  popular  form  of  gage  is  a  lease 
for  years  to  the  creditor,  under  the  condition  that,  if  the 
debt  be  not  paid  at  the  end  of  the  term,  the  creditor  shall 
hold  the  land  in  fee.  During  the  term  the  gagee  has  the 
possessio  or  seisina  of  a  termor,  and  this  possession  is  pro- 
tected by  writ.  On  default  of  the  debtor  the  fee  shifts  at 
once  and  without  process  of  law  to  the  creditor ;  the  fee,  the 
land  itself,  is  thus  forfeited  for  the  debt. 2  Here  we  have  a 
form  of  the  property-gage  very  much  like  the  Glanvillian 
gage  for  a  term  with  clause  of  forfeiture;  and  indeed  the 
chief  difference  is  the  protection  thrown  about  the  creditor's 
possession  in  the  later  form. 

This  early  form  of  the  property-gage,  the  gage  of  Glan- 
vil  and  Bracton,  is  not,  however,  to  be  the  basis  of  the  later 
law.  Legal  theory  of  later  times  does  not  tolerate  this  thir- 
teenth-century method  of  allowing  a  term  for  years,  a  "  chat- 
tel real,"  to  grow  into  a  "  freehold  estate  "  on  the  mere  ful- 
filment of  a  condition.  3  Indeed,  the  classical  gage  of  English 
law  is  not  a  conveyance  on  condition  precedent,  but  a  convey- 
ance on  condition  subsequent,  the  mortuum  vadium  or  mort- 
gage that  is  expounded  by  Littleton  and  the  judges  of  the 
later  common  law. 

This  later  form  of  gage  is  a  conditional  feoffment;  the 
condition  being  one  for  redemption  and  defeasance  on  a  speci- 
fied day.  The  creditor  acquires  at  once  an  estate  in  fee, 
though  this  freehold  estate  is  subject  to  the  condition.  If 
the  debt  be  paid  on  the  day,  the  feoffor,  that  is,  the  debtor, 
or  his  heirs  may  re-enter;  if  not,  the  freehold  estate  of  the 
feoffee,  the  creditor,  is  entirely  freed  from  the  condition, 
thereby  becoming  absolute.4  In  other  words,  the  gage  of 

»2  Pollock  and  Maitland,  Hist.  Eng.  Law  120,  121. 

8  Bracton,  f.  20,  268,  269;  3  Britton  XV,  §§2-7;  Bracton's  Note 
Book,  pi.  889;  Madox,  Formulare,  No.  DIX;  Cart.  Guisborough  144; 
2  Pollock  and  Maitland,  Hist.  Eng.  Law  122.  See  also  Round,  Ancient 
Charters,  No.  56;  1  Chron.  de  Melsa  303;'  Madox,  Formulare,  No. 
CCIII;  Y.  B.  21-22  Ed.  I.  pp.  125,  222-224. 

•See  Littleton,  §§  349,  350;  Co.  Lit.  216-218;  2  Pollock  and  Maitland, 
Hist.  Eng.  Law  122,  123. 

4  See  Bracton's  Note  Book,  pi.  458;  Y.  B.  20-21  Ed.  I.  p.  422;  Y.  B. 
30-31  Ed.  I.  pp.  208-212;  Madox,  Formulare,  Nos.  DLX-DLXII, 


656          VIII.    PROPERTY  (IN  GENERAL) 

the  later  common  law  is  a  property-gage,  a  form  of  for- 
feiture-gage ;  and  at  the  same  time  there  is  combined  with 
this  forfeiture-gage  a  temporary  usufruct-gage  in  the  nature 
of  the  Glanvillian  mortuum  vadium,  the  rents  and  profits 
taken  by  the  mortgagee  in  possession  until  the  day  of  pay- 
ment not  going  in  reduction  of  the  debt. 1 

Though  the  writers  of  the  twelfth  and  thirteenth  centuries 
do  not  discuss  this  form  of  the  property-gage,  probably  be- 
cause it  falls  under  the  general  theory  of  conditional  gifts, 
it  is  nevertheless  found  in  the  sources  of  the  law  long  before 
the  time  of  Littleton,2  and  its  history  seems  indeed  to  reach 
back  to  a  distant  past. 3  Its  transformation  in  modern  times 
will  be  adverted  to  subsequently. 

II 

The  English  gage  of  land  with  possession  of  the  debtor 
until  default  is  to  all  seeming  developed  later  than  the 
gage  with  immediate  possession  of  the  creditor;  the  origin 
of  this  later  form  of  security  for  loans  being  directly  con- 
nected with  the  history  of  the  process  of  judicial  execution.4 

DLXIX,  DLXXIX;  Littleton,  §§  332-344.  According  to  modern  prac- 
tice in  England  the  mortgage  takes  the  form  of  an  absolute  conveyance 
to  the  mortgagee,  with  an  agreement  on  his  part  to  reconvey  when  the 
loan  is  paid.  See  Ames,  Specific  Performance,  17  Harv.  L.  Rev.  174. 

An  example  of  the  mortgage  for  years  will  be  found  in  Madox, 
Formulare,  No.  DLXXXIX.  In  this  later  form  of  gage  for  a  term 
default  results,  not  in  forfeiture  of  the  fee,  as  in  the  time  of  Bracton, 
but  simply  in  forfeiture  of  the  term.  See  note  (1)  to  Co.  Lit.  205  a. 

1Franken,  Franzosisches  Pfandrecht  162,  163. 

2  See  the  authorities  cited  in  note  4,  p.  655. 

3  On  a  similar  form  of  conditional  conveyance  for  purposes  of  secur- 
ity in  the  Anglo-Saxon  period  see  Brunner,  Zur  Rechtsgeschichte  der 
romischen   und   germanischen   Urkunde   194-198. 

4Franken,  Das  franzosische  Pfandrecht  im  Mittelalter  7,  and  Brun- 
ner, Grundziige  der  deutschen  Rechtsgeschichte  189,  190,  take  this  view 
as  to  the  Germanic  law  on  the  Continent.  2  Heusler,  Institutionen  des 
deutschen  Privatrechts  135,  143-150,  maintains  that  both  the  gage  with 
and  the  gage  without  the  creditor's  possession  appear  equally  early  in 
old  German  law,  and  that  indeed  there  is  no  direct  connection  between 
judicial  execution  and  the  origin  of  the  gage  with  debtor's  possession. 
For  views  of  other  legal  scholars  see  2  Heusler,  Institutionen  144,  and 
Wigmore,  The  Pledge-Idea,  10  Harv.  L.  Rev.  341-350.  Although  the 
present  writer  alone  is  responsible  for  views  held  in  this  paper,  he 
wishes  to  express  indebtedness  to  his  friends  Professor  Gierke  and  Dr. 
Neubecker,  of  the  University  of  Berlin,  for  suggestions  as  to  the  nature 
of  the  gage  with  possession  of  the  debtor,  more  especially  the  German 
Hypothek. 


70.     HAZELTINE:   GAGE  OF  LAND          657 

Before,  however,  taking  up  this  phase  of  the  development, 
we  wish  to  tarry  a  moment  in  the  realm  of  medieval 
"  charges,"  "  liens,"  "  burdens  "  and  "  encumbrances  "  on 
land  that  are  created  for  purposes  other  than  the  securing 
of  debts  owing  to  creditors.  Here,  in  certain  instances  at 
least,  a  right  in  rem  is  created  in  favor  of  one  who  does  not 
take  immediate  possession  of  the  burdened  land;  but  differ- 
ent opinions  may  perhaps  be  held  as  to  whether  in  such  cases 
there  is  really  a  gage  of  land  in  the  sense  of  a  security  for 
a  personal  claim.  Thus,  for  instance,  the  warranty  of 
title  to  land  conveyed  may  create  a  charge  on  other  land 
remaining  in  the  hands  of  the  warrantor,  and  the  endow- 
ment of  the  wife  at  the  door  of  the  church  may  create  a 
charge  on  all  the  land  of  the  husband.  In  such  cases,  should 
the  feoffee  be  ousted  or  should  the  husband  die  in  the  life- 
time of  the  wife,  the  land  previously  bound  by  the  warranty 
or  by  the  endowment  may  be  followed  into  the  hands  of  third 
persons  and  made  to  answer  the  claim  of  the  feoffee  or  the 
widow.  To  give  immediate  possession  of  the  burdened  land 
to  the  feoffee  or  the  wife  would  be  needless  and  indeed  with- 
out meaning;  the  creation  of  the  charge,  the  right  m  rem, 
is  all  that  is  necessary.1 

In  the  medieval  period  warranty  is  the  obligation  of  de- 
fending the  title  to  land  conveyed,  and,  should  the  defense 
fail,  of  giving  to  the  evicted  owner  other  land  of  equal  value 
in  exchange,  an  excambium  ad  valentiam;  2  the  warranty 
being  generally  enforced  by  voucher  or  by  the  writ  of  war- 
antia  cartae,  sometimes  it  would  seem  by  writ  of  Covenant.3 
Besides  the  warranty  binding  only  the  warrantor  and  his 
heirs,  warranty  may  in  the  thirteenth  century  create  also, 
as  we  have  just  stated,  a  charge  or  lien  on  other  lands  re- 
maining in  the  hands  of  the  warrantor  that  is  enforceable 
against  the  whole  world.  In  the  words  of  Bracton:  Non 


xFor  the  German  law  see  2  Heusler,  Institutionen  135,  147,  148. 

'See  Glanvill,  III.;  Bracton,  f.  257b-261b,  380-399b;  Beames,  notes 
to  Glanvill,  III.,  Beale's  edition;  Holmes,  Common  Law  372;  1  Gray, 
Cases  on  Property  416-419.  Compare  2  Brunner,  Deutsche  Rechtsges- 
chichte  516;  2  Pollock  and  Maitland,  Hist.  Eng.  Law  663. 

•See  Bracton,  f.  399,  and  2  Pollock  and  Maitland,  Hist.  Eng.  Lavr 
218,  n.  4,  664.  Compare  Rawle,  Covenants  for  Title,  5th  ed.,  12,  16. 


658  VIII.     PROPERTY   (IN  GENERAL) 

solum  obligatur  persona  feoffatoris  .  .  .  ,  poterit  etiam 
tenementum  obligari  cum  persona  tacite  vel  expresse.1 

This  lien  or  charge,  this  obligatio  rei,2  may  arise,  there- 
fore, out  of  an  express  warranty  or  out  of  a  tacit  warranty. 
An  express  warranty  binds  a  certain  designated  tenement.3 
A  tacit  warranty  implied  in  a  feoffment  binds,  says  Brae- 
ton,  all  the  other  lands  that  the  feoffor  has  on  the  day  of 
the  feoffment.  4  That  the  feoffee  of  the  warrantor  acquires 
a  right  in  rem  is  shown  by  the  fact  that  land  bound  by  war- 
ranty passes  to  everyone  with  the  charge.  The  land  is 
bound  in  the  hands  of  the  warrantor's  heirs.  It  may  be 
followed  into  the  hands  of  assigns,  and  even  into  the  hands 
of  the  king  and  the  chief  lord,  who  has  it  as  an  escheat. 
Should  the  warranty  fail  and  should  the  burdened  land  be 
called  for  to  answer  the  claim  of  the  warrantor's  feoffee, 
every  possessor  must  give  up  the  land.  5 

In  the  legal  literature  of  the  twelfth  and  thirteenth  cen- 
turies the  dos  is  represented  as  a  gift  from  the  bridegroom 
to  the  bride  ad  ostium  ecclesiae  6  at  the  time  of  the  marriage 
ceremony,  and  yet  as  a  gift  which  the  law  compels  the 
bridegroom  to  make.7  The  gift  may  take  the  form  of  a 
dower  of  certain  definite  lands,  but  never  more  than  a  third 

1  Bracton,  f.  382.  In  the  later  Middle  Ages  a  mere  warranty  would 
not  bind  the  other  lands  of  the  warrantor  in  whatsoever  hands  they 
might  come.  To  create  a  lien  on  the  land  it  was  necessary  to  bring 
an  action  of  warantia  cartae  and  get  a  judgment  pro  loco  et  tempore. 
See  Rawle,  Covenants  for  Title,  5th  ed.,  12,  13. 

9  See  Bracton,  f .  382,  388b,  and  the  thirteenth-century  annotations 
to  Bracton's  Note  Book,  pi.  748. 

8  Bracton,  f.  382;  Bracton's  Note  Book,  pi.  748,  and  thirteenth-cen- 
tury annotations;  Y.  B.  20-21,  Ed.  I.,  pp.  359-361.  See  Maitland,  Brac- 
ton's Note  Book,  pi.  748,  note  7. 

4  Bracton,  f.  382,  382b,  388,  388b;  Bracton's  Note  Book,  pi.  748, 
thirteenth-century  annotations. 

"See  Bracton,  f.  380-382b,  388,  388b;  Bracton's  Note  Book,  pi.  638, 
748,  1024;  Fleta,  lib.  VI.  c.  23,  §17;  Maitland,  Bracton's  Note  Book,  pi. 
748,  note  7;  Holmes,  Common  Law  394,  395.  Holmes,  Common  Law 
395:  "Fleta  writes  that  every  possessor  will  be  held.  There  cannot 
be  a  doubt  that  a  disseisor  would  have  been  bound  equally  with  one 
whose  possession  was  lawful."  The  various  writs  will  be  found  very 
fully  collected  in  Bracton,  f.  380-399b. 

e  The  endowment  is  at  the  door  of  the  church  to  insure  publicity  and 
solemnity.  See  Coke  on  Littleton  34a;  Beames,  Translation  of  Glan- 
ville,  Beale's  ed.  94,  n.  2;  2  Pollock  and  Maitland,  Hist.  Eng.  Law  374, 
375. 

7  Compare  Co.  Lit.  30b,  31a. 


70.     HAZELTINE:   GAGE  OF  LAND          659 

of  all  the  lands  of  the  husband ;  and  in  this  form  the  dower 
is  called  a  dos  nominata.  l  A  dos  rationabilis,  on  the  other 
hand,  is  in  the  twelfth  century  the  dower  of  a  third  of  all 
land  in  the  freehold  seisin  of  the  husband  on  the  day  of  the 
nuptials;  and,  when  the  husband  fails  to  give  a  dos  nomi- 
nata, it  is  assumed  by  the  law  that  he  wishes  to  give  a  dos 
rationabilis.2  In  the  time  of  Britton  the  wife  has  a  right, 
in  the  case  of  a  dos  rationabilis,  to  a  third  of  all  the  lands 
in  the  seisin  of  the  husband  during  his  entire  life ; 3  and  this 
is  the  rule  of  the  common  law.  4 

In  the  time  of  Bracton  the  wife  seems  to  acquire  at  once, 
by  the  giving  of  a  dos  nominata,  "  true  proprietary 
rights  "  in  the  lands.  Unless  she  has  joined  with  her  hus- 
band in  the  levying  of  a  final  concord  before  the  king's 
justices,  she  is  entitled,  on  his  death,  to  recover  the  very 
land  designated  from  any  one  who  now  has  it  in  his  hands. 
If  the  tenant  be  sued  by  the  woman,  he  will  vouch  the  heir 
of  the  husband.  The  heir  will  probably  be  obliged  to  war- 
rant the  gift  of  his  ancestor,  and,  should  he  fail  in  this, 
he  must  give  the  evicted  tenant  a  compensation  in  value  out 
of  other  lands  of  the  ancestor.  This,  however,  does  not 
concern  the  wife  at  all.  Her  right  is  to  the  land  named  by 
her  husband  and  she  can  evict  the  tenant.5 

If  one-third  of  the  land  that  the  feoffee  holds  under  the 
feoffment  from  the  husband  be  claimed  by  the  widow  as 
dos  rationabilis,  and  if  the  feoffee  vouch  the  heir  to  war- 
ranty, the  widow  must  see  that  the  heir  appears  in  court, 
for  the  heir  is  also  the  warrantor  of  her  dower.  If  it  be 
confessed  by  the  heir  that  sufficient  other  lands  have  come 
to  him  to  endow  the  widow,  the  feoffee  will  be  allowed  to 

*In  the  later  Middle  Ages  the  dos  nominata  may  be  more  than  a 
third  of  all  the  lands.  See  Littleton,  §§  37,  39 ;  2  Pollock  and  Maitland, 
Hist.  Eng.  Law  421,  425,  426.  Compare  Co.  Lit.  33b. 

2Glanvill,  VI.  1,  2,  17;  Bracton,  f.  92;  1  Reeves,  Hist.  Eng.  Law 
155,  156;  2  Pollock  and  Maitland,  Hist.  Eng.  Law  420,  421,  425. 

81  Nichols,  Britton,  pp.  xli,  xlii,  and  2  idem  238,  242;  2  Pollock  and 
Maitland,  Hist.  Eng.  Law  421. 

*  Littleton,  §37;  Co.  Lit.  33b.  Compare  2  Reeves,  Hist.  Eng.  Law 
577-579. 

6  Bracton,  f.  299b;  2  Pollock  and  Maitland,  Hist.  Eng.  Law  422,  423. 
On  the  legal  nature  of  the  wife's  right  in  the  land  before  the  husband's 
death,  compare  Bracton,  f.  300b;  Beames,  Translation  of  Glanville, 
Beale's  ed.,  97,  n.  3.  See  Glanvill,  VI.  3. 


660  VIII.     PROPERTY   (IN  GENERAL) 

keep  his  land  and  the  widow  will  be  given  a  judgment  against 
the  heir.  Should,  however,  the  heir  have  no  other  lands, 
then  the  widow  can  recover  a  third  of  the  land  held  by  the 
feoffee.  The  feoffee  will  get  judgment  against  the  heir; 
and,  on  the  death  of  the  woman,  the  feoffee  will  get  back 
the  land  that  the  widow  has  been  holding  as  dower.  As  ex- 
pressed by  Pollock  and  Maitland :  "  The  unspecified  dower 
is  therefore  treated  as  a  charge  on  all  the  husband's  lands, 
a  charge  that  ought  to  be  satisfied  primarily  out  of  those 
lands  which  descend  to  the  heir,  but  yet  one  that  can  be  en- 
forced, if  need  be,  against  the  husband's  feoffees."  1 

Again,  it  is  not  uninstructive  to  observe  that  feudal  serv- 
ices and  rents-service  are  in  the  medieval  law  a  "  charge  " 
or  "  burden  "  on  the  land  held  by  the  tenant.  2  Should  the 
tenant  make  default,  the  lord  may  not  only  distrain  the  chat- 
tels that  are  on  the  encumbered  land,  but  he  may  reach  the 
land  itself.  The  tenement  may  be  forfeited  to  the  lord;  or, 
the  lord  may  enter  into  possession  and  reduce  his  claim 
out  of  the  fruits  of  the  land ;  or,  he  may  enter  and  hold  the 
land  as  a  mere  distress,  with  no  right  to  keep  it  as  a  for- 
feiture and  with  no  right  to  satisfy  himself  out  of  the  prof- 
its.3 

By  the  feudal  law  failure  of  the  tenant  to  perform  the 
services  results  in  a  forfeiture  of  the  land;  but  only  after 
the  tenant  has  been  adequately  warned  and  after  judgment 
of  the  lord's  court.  If  the  tenant  be  summoned  three  times 
without  responding,  the  feudal  law  enables  the  court  to  put 
the  lord  into  possession  for  a  year.  Should  the  tenant  re- 
deem within  the  year,  possession  is  restored  to  him;  but 
should  he  not  redeem,  he  loses  the  land.  4 

^racton,  f.  300;  2  Pollock  and  Maitland,  Hist.  Eng.  Law  423,  426. 
For  the  writs  of  the  dowager  see  Glanvill,  VI.;  Bracton,  f.  296-3I7b; 
2  Britton,  liv.  V.,  c.  IV.-XIII. 

8  See,  for  instance,  Stat.  Glouc.,  6  Ed.  I.  c.  4;  Stat.  West.  II,  13 
Ed.  I.  c.  21;  1  Britton,  liv.  II.  c.  XVIII,  §10;  Holmes,  Common  Law 
888.  Similar  in  its  effect  is  the  so-called  Abmeierungsrecht  in  the  case 
of  the  German  Erbpacht  and  the  emphyteusis  of  Roman  law  and  the 
German  common  law.  Compare  also  von  Amira,  Das  Altnorwegische 
Vollstreckungsverfahren  (1874)  314  et  seq. 

8  Note,  further,  the  special  significance  of  the  rent-charge  in  the 
English  medieval  period.  Compare  2  Heusler,  Institutionen  150-153. 

4  See  2  Chron.  Abingd.  128;  Wright,  Tenures  197-199;  Gilbert,  Rents 
8,  4;  Robinson,  Gavelkind  195;  2  Reeves,  Hist.  Eng.  Law  186;  1  Pol- 


70.     HAZELTINE:  GAGE  OF  LAND         661 

Forfeiture  may  also  be  enforced  by  writ  of  cessamt  per 
biermium,  introduced  by  statute  in  the  reign  of  Edward  I. 
If  the  tenant  fail  to  perform  his  services  or  pay  his  rent  for 
two  years,  and  if  there  be  insufficient  chattels  for  a  dis- 
traint, the  lord  may  obtain  a  writ  of  cessavit  out  of  chancery. 
This  writ  enables  the  lord,  if  the  tenant  still  fail  to  redeemi 
by  tendering  his  arrears  and  damages  before  judgment,  to- 
recover  the  land  or  fee  itself  in  demesne.  The  land  thus 
adjudged  to  the  lord  is  forfeited  for  ever,  for  the  tenant 
has  now  no  right  to  redeem.1 

What  practically  amounts  to  forfeiture  is  also  found  in 
the  Kentish  custom  of  gavelet.  If  the  tenant  of  land  held 
in  gavelkind  falls  into  arrears  with  his  services  and  rents, 
the  lord  is  to  get  permission  of  his  own  Three-Weeks-Court 
to  distrain  the  chattels  of  his  tenant  found  upon  the  tene- 
ment ;  and  the  lord  in  thus  seeking  to  distrain  is  to  be  ac- 
companied by  good  witnesses.  This  attempt  to  distrain 
is  to  be  continued  for  four  sessions  of  this  court  of  the  lord, 
and  if  before  the  fourth  court  sufficient  chattels  cannot  be 
found,  the  court  then  awards  that  the  lord  may  take  the 
tenement  into  his  hands  en  noun  de  destresse  ausi  cum  boef 
ou  vache.  The  lord  may  keep  the  land  in  his  hands  a  year 
and  a  day,  but  without  fertilizing  it ;  and  within  this  period 
the  tenant  may,  if  he  pay  his  arrears  and  make  reasonable 
amends  for  the  withholding,  enter  once  more  into  his  land. 
If,  however,  the  tenant  do  not  thus  redeem,  the  lord  may 
then  make  all  the  proceedings  public  at  the  next  county 
court,  and  in  the  session  of  his  own  court  following  this 
public  declaration  it  is  finally  awarded  that  the  lord  may 
enter  into  the  tenement  and  cultivate  it,  taking  the  profits 
as  in  his  own  demesne  (si  come  en  son  demesne).2 

lock  and  Maitland,  Hist.  Eng.  Law  354.  See  also  Placita  Ang.-Norm. 
97. 

'See  Stat.  Glouc.,  6  Ed.  I.  c.  4;  Stat.  West.  II,  13  Ed.  I.,  c.  21; 
F.  N.  B.  f.  208  H,  209,  210  A.;  Coke,  2  Inst.  295,  400,  460;  3  Blackstone 
c.  15,  §1;  Co.  Lit.  47a,  n.  4;  Co.  Lit.  142a,  n.  2;  Co.  Lit.  143b,  n.  5; 
Booth,  Real  Actions  133-135 ;  Wright,  Tenures  202 ;  Robinson,  Gavelkind 
193-195;  1  Pollock  and  Maitland,  Hist.  Eng.  Law,  353. 

2  Consuetudines  Cantiae,  1  Statutes  of  the  Realm  224a,  225 ;  Lam- 
barde,  Perambulation  of  Kent  498,  499,  526-528;  2  Reeves,  Hist.  Eng. 
Law  186,  187;  Robinson,  Gavelkind  195,  196.  Compare  Co.  Lit.  142a, 
n.  2. 


662  VIII.     PROPERTY  (IN  GENERAL) 

If  now  the  tenant  comes  after  this  award  of  the  lord's 
court  and  wants  to  get  back  the  tenement,  thus  treating  the 
whole  transaction  as  in  effect  a  mere  pledge  quousque,  he  is 
obliged,  before  this  can  be  done,  to  perform  the  services 
and  pay  the  rent,  and  must  in  addition  make  proper  amends 
to  the  lord  for  the  withholding  of  the  services  or  rent.1 

The  copies  of  the  custumal  differ,  however,  as  to  just 
what  amends  the  tenant  must  make,  a  good  deal  depending 
apparently  upon  an  old  Kentish  by-word  printed  in  the 
custumal;  and  owing,  it  would  seem,  to  this  uncertainty 
as  to  the  proper  reading  of  this  by-word,  it  has  always  been 
a  mooted  question  whether  the  Kentish  gavelet  was  intended 
as  a  continuing  security,  with  a  right  of  redemption  even 
after  adjudication  to  the  lord,  or  whether  there  was  an  ab- 
solute forfeiture.  According  to  the  generally  accepted  read- 
ing of  the  by-word,  the  tenant  seems  to  have  a  theoretical 
right  to  redeem  by  paying  the  arrears  nine  —  or  eighteen  ? 
—  times  over,  and  in  addition  a  wergild  of  £5.  As  legal 
scholars  have  pointed  out,  this  is  practically  an  impossible 
condition,  and  there  is  in  reality  a  forfeiture  of  the  tenement, 
though  the  ancient  law  in  its  forbearance  is  loath  to  say  so.2 

Our  sources  leave  us  in  no  doubt,  however,  that  in  Lon- 
don the  medieval  procedure  by  gavelet  may  result  in  abso- 
lute forfeiture.  According  to  the  Statute  of  Gavelet,3 
usually  attributed  to  the  tenth  year  of  Edward  II.'s  reign, 
if  the  rents  be  in  arrear,  the  lord  shall  first  distrain  all  the 
chattels  on  the  land,  and  then,  if  these  be  insufficient,  he 
may  begin  proceedings  in  gavelet  by  a  writ  de  consuetu- 
dinibus  et  servitiis.  If  the  tenant  deny  the  fact  that  he 
owes  services  or  rents,  the  lord  must  then  prove  in  court 
by  witnesses  that  he  is  seised  of  the  services  or  rents  now  in 
arrear;  and  if  this  be  proved,  the  lord  shall  then  recover 

1  Consuetudines   Cantiae,   1    Statutes   of  the   Realm   225;   Lambarde, 
Perambulation  528;  Robinson,  Gavelkind  196. 

2  For  details   as  to   this   question  see  De    Wandlesworth's   Case,  re- 
ported in  Robinson,  Gavelkind  197;  1  Statutes  of  the  Realm  225,  n.  1; 
Lambarde,  Perambulation  449;  Robinson,  Gavelkind  196-202;  1  Pollock 
And  Maitland,  Hist.  Eng.  Law  355,  n.  1.    Compare  2  idem  591-593. 

3  Statutum  de  Gaveleto  in  London,  1    Statutes  of    the   Realm,  222; 
Robinson,  Gavelkind  194;  Co.  Lit.   H2a,  n.  2;  2  Reeves,  Hist.  Eng. 
Law  186,  187. 


70.     HAZELTINE:   GAGE  OF  LAND          663 

his  tenement  in  demesne  by  judgment  of  court.  If,  however, 
the  tenant  acknowledge  the  services  or  rents  and  the  arrears, 
then  by  judgment  of  court  the  arrears  shall  be  doubled, 
and  the  tenant  must  also  pay  a  fine  to  the  sheriff  for  the 
wrongful  withholding  of  the  rents.  If  the  tenant  do  not 
come,  after  due  summons,  to  render  the  doubled  arrears  and), 
to  pay  the  fine,  either  because  he  is  unwilling  or  unable  to> 
make  satisfaction,  the  land  shall  be  delivered  to  the  lord  by 
the  court  to  be  kept  in  his  hands  for  a  year  and  a  day. 
Within  this  period  the  tenant  may  redeem  his  land  by  ren- 
dering the  doubled  arrears  and  paying  the  fine.  But  if  he 
fail  thus  to  redeem  within  the  year  and  day,  the  land  shall 
then  by  judgment  of  court  be  forfeited  to  the  lord  for  good 
and  all.  The  land  shall  then  be  called  forschoke,  because, 
for  default  in  the  services,  it  shall  remain  to  the  lord  for 
ever  in  demesne.1 

The  common  law  will  not  allow  forfeiture  of  the  land 
for  default  of  the  tenant  in  performing  his  services  or  paying 
his  rent;  to  effect  a  forfeiture  it  is  necessary  to  introduce 
from  the  Roman  system  the  writ  of  cessavit  per  biennium, 
which  we  have  just  adverted  to.  All  that  the  king's  court 
in  the  days  of  Glanvill  and  Bracton  will  permit  is  a  simplex 
namium  of  the  land.  The  lord  must  first  distrain  the  chat- 
tels of  the  tenant ;  and  only  after  this  has  been  done  may 
the  lord  get  a  judgment  from  his  seignorial  court  permit- 
ting him  to  distrain  the  tenant  by  his  land.  By  virtue  of 
this  judgment  the  lord  is  able  to  seize  the  land  and  to  hold 
it  as  a  simplex  namium,  as  a  means,  that  is,  of  compelling 
the  tenant  to  render  the  arrears.  The  lord  cannot  obtain 
the  land  as  a  forfeiture,  and  he  has  even  no  right  to  take 
the  profits.  The  tenant  retains  his  right  to  redeem;  and 
whenever  he  is  willing  and  able  to  satisfy  the  claim  of  the 
lord,  the  lord  must  give  back  the  land.2 

*Cowel,  Interpreter  (1727),  s.  v.  Foreschoke:  " Foreschoke  (Dire- 
lictum)  signifies  originally  as  much  as  forsaken  in  our  modern  lan- 
guage." 

2  Glanvill,  IX,  8;  Bracton,  f.  205b,  217,  218;  Bracton's  Note  Book, 
pi.  2,  270,  348,  370;  Wright,  Tenures  199-201;  Co.  Lit.  142a,  n.  2;  1 
Pollock  and  Maitland,  Hist.  Eng.  Law  352-355.  Compare  Gilbert, 
Rents  3,  4.  It  is  true  that  feoffors  and  feoffees  may  expressly  agree 
that,  on  default,  the  feoffor  may  by  re-entry  get  back  the  land;  but 


664  VIII.     PROPERTY   (IN  GENERAL) 

In  the  law  set  forth  by  Littleton  and  Coke  it  is  sometimes 
possible  for  the  one  entitled  to  rent  to  satisfy  his  claim  out 
of  the  profits  of  the  land:  thus,  where  a  feoffment  is  made 
reserving  a  certain  rent,  upon  the  condition  that,  if  the  rent 
be  in  arrear,  the  feoffor  or  his  heir  may  enter  and  hold  the 
land  until  he  be  satisfied  or  paid  the  arrears.  In  this  case, 
says  Coke,  "  when  the  feoffor  is  satisfied  either  by  perception 
of  the  profits  or  by  payment  or  tender  and  refusall  or  partly 
by  the  one  and  partly  by  the  other,  the  feoffee  may  re-enter 
into  the  land."  l 

The  history  of  gages  to  secure  loans,  where  the  debtor 
remains  in  possession  of  the  gaged  land  until  default,  begins 
with  the  coming  in  of  the  Jews  and  of  foreign  merchants 
from  Italy  and  other  countries.  In  the  centuries  that  imme- 
diately follow  the  Norman  Conquest  it  is  English  policy  to 
foster  industry  and  commerce.  Foreigners  are  induced  to 
visit  the  realm,  and  it  is  sought  to  make  up  for  deficiencies 
in  English  production  by  bringing  in  the  goods  of  other 
countries.  Systems  of  banking  and  insurance  take  root. 
In  the  interest  of  creditors  new  and  more  efficient  processes 
of  judicial  execution  are  established.  The  Exchequer  of  the 
Jews  is  set  up  as  a  branch  of  the  Great  Exchequer.  A 
system  of  registering  debts  owing  to  Jewish  creditors  and 
the  gages  that  secure  them  is  perfected,  this  system  allowing 
a  free  buying  and  selling  of  Jewish  obligations  and  efficient 
execution  on  default.2  The  needs  of  other  creditors  are 
supplied  by  giving  them,  on  judgments  or  enrolled  recog- 
nizances of  debt,  new  writs  of  execution  in  addition  to  the 
old  common  law  writs  of  fieri  facias  and  levari  facias;  these 
new  writs  enabling  the  creditor  to  reach  the  lands  and  chat- 
tels and  body  of  the  debtor.  The  writ  of  elegit  is  introduced 

such  agreements  are,  before  the  middle  of  the  thirteenth  century,  very 
rare  indeed.  1  Pollock  and  Maitland,  Hist.  Eng.  Law  352. 

*Lit.  §327;  Co.  Lit.  202b,  203a.  See  Co.  Lit.  205a,  and  marginal 
note  (d). 

2  See,  further,  3  Hoveden  266,  267;  Bracton,  f.  13,  386b;  2  Black- 
stone,  c.  20;  Plowden,  Usury  95-98;  Horwood,  Y.  B.  32-33  Ed.  I.,  pp. 
xii,  xlii;  Jacobs,  Jews  of  Angevin  England;  Gross,  Exch.  of  the  Jews 
(printed  in  1  Publications  of  Anglo-Jewish  Hist.  Exhibition)  ;  1  Pol- 
lock and  Maitland,  Hist.  Eng.  Law  468-475,  2  idem  123,  124;  Rigg,  Jew- 
ish Exch.  (Seld.  Soc.)  ix-lxii;  Hazeltine,  Exch.  of  the  Jews,  18  L.  Quart. 
Rev.  305-309. 


70.     HAZELTINE:   GAGE  OF  LAND          665 

by  the  Statute  of  Westminster  the  Second  for  creditors 
generally.  Merchant  creditors,  if  they  get  their  debtors  to 
matte  recognizances  of  debt  before  courts  of  record  or  cer- 
tain public  officials,  may  obtain,  on  the  default  of  their 
debtors,  even  more  effective  remedy.  Merchant  creditors 
may  reach,  among  other  things,  not  only  half  the  land,  as 
under  the  Statute  of  Westminster  the  Second,  but  all  the 
land  of  the  debtor.  These  merchant  securities  are  known 
as  "  statutes  merchant  "  and  "  statutes  staple,"  the  former 
being  introduced  by  the  Statute  of  Acton  Burnel  and  the 
Statute  of  Merchants  in  the  reign  of  Edward  I.,  the  latter 
by  the  Statute  of  the  Staple  under  Edward  III.  The  advan- 
tages of  the  merchant  securities  are  given  to  all  creditors 
by  the  Statute  23  Henry  VIII.,  introducing  the  security 
known  as  a  "  recognizance  in  the  nature  of  a  statute  sta- 
ple." 1 

A  gage  of  land  with  possession  of  the  debtor  to  secure 
money  obligations  is  therefore  rendered  necessary  and  pos- 
sible by  this  development  of  credit  and  of  processes  of  judi- 
cial execution ;  and,  very  largely  for  the  benefit  of  the  mer- 
cantile classes,  an  hypothecation  of  land  may  now,  in  the 
later  Middle  Ages,  be  created  by  judgment  and  by  the  regis- 
tration or  enrolment  of  contracts  under  seal.  The  publicity 
essential  to  this  form  of  gage  is  thereby  obtained;  but  it 
should  be  well  observed  that  the  new  security  breaks  in  upon 
the  old  law  with  its  restraints  on  alienation  and  its  require- 

aSee,  further,  preambles  to  Stat.  Act.  Burnel,  11  Ed.  I.,  and  Stat. 
Merchant,  13  Ed.  I.;  Coke,  2  Inst.  677-680,  4  Inst.  237,  238;  Bac.  Abr. 
tit.  Execution;  Comyn,  Digest,  tit.  Obligation  (K) ;  Wright,  Tenures 
170-171 ;  2  Blackstone,  c.  10,  §  V,  c.  20,  §  2,  3  idem  c.  26,  §  5,  4  idem  c. 
33,  §  III ;  2  Reeves,  Hist.  Eng.  Law  71,  72,  276-279,  3  idem  289 ;  Coote, 
Mortgage,  2  ed.,  66;  Rogers,  Indus,  and  Com.  Hist.  Eng.  (1892)  71, 
72;  Cunningham,  Eng.  Indus,  and  Com.  during  Early  and  Middle  Ages, 
(1896)  222,  n.  3,  281-283,  290,  316,  317;  Cunningham  and  McArthur, 
Eng.  Indus.  Hist.;  2  Pollock  and  Maitland,  Hist.  Eng.  Law  203,  204, 
596,  597;  Brodhurst,  Merchants  of  the  Staple,  17  L.  Quart.  Rev.  62-74; 
Carter,  Eng.  Legal  Institutions  (1902)  250-270. 

The  forms  of  gage  described  by  Glanvill  and  Bracton  seem  to  be, 
as  we  have  already  explained,  securities  with  immediate  possession  of 
the  creditor.  For  the  view  that  the  gage  with  possession  of  the  debtor 
may  be  found  in  these  writers,  see,  however,  2  Phillips,  Eng.  Reichs- 
und  Rechtsgeschichte  239,  240;  2  Glasson,  Histoire  du  droit  et  des 
institutions  de  PAngleterre  313-316;  Chaplin,  Story  of  Mortgage  Law, 
4  Harv.  L.  Rev.  6  et  seq. 


666  VIII.     PROPERTY   (IN  GENERAL) 

merit  that  livery  of  seisin  is  necessary  to  the  conveyance  of 
rights  in  land.  The  old  feudal  polity  is  attacked  and  at- 
tacked successfully  by  commercialism. 

The  gage  of  lands  and  tenements  to  Jewish  creditors  who 
do  not  take  possession  arises,  then,  on  the  registration  of 
a  written  contract  under  seal  before  public  officials  at  the 
Jewish  Exchequer  or  in  certain  towns.1 

To  secure  principal  and  interest  the  debtor  may  thus 
hypothecate  certain  specific  lands ; 2  and  lands  of  any  tenure 
are  chargeable  until  the  year  1234,  when  the  Crown's  de- 
mesne estates  held  in  socage  or  villeinage  are  exempted.  3 

On  the  other  hand,  the  gage  is  often  in  terms  a  gage  of 
all  the  debtor's  property,  movable  and  immovable.  Some- 
times indeed  the  debtor  says  that,  should  he  make  default,  all 
his  goods,  movable  and  immovable,  may  be  distrained.4  Ap- 
parently all  such  recognizances  or  bonds  create,  as  regards 
movable  property,  merely  a  right  to  distrain  the  chattels 
that  are  in  the  hands  of  the  debtor,  not  an  hypothecation  or 
right  in  rem  that  enables  the  creditor  to  follow  the  chattels 
into  the  hands  of  third  persons.  5  We  have  evidence,  how- 
ever, that  the  gaging  of  land  to  Jews  by  registered  con- 
tract gives  rise  to  a  right  in  rem  for  purposes  of  security. 
If  the  alienee  of  land  bound  by  the  debt  refuse  to  pay  the 
debt  with  interest,  the  seisina  of  the  land  in  his  hands  will 
be  given  to  the  Jew.  6 

1  See  on  this  system  of  archae  and  rotuli  the  authorities  cited  in  n. 
2,  p.  664,  supra.      Compare  Rigg,  Jewish  Exch.    (Seld.    Soc.),  pp.  xiii, 
xxxvii,   136    (s.   v.   stallare).     On   the   enrolment   of   documents   in   the 
Great  Exchequer  see  1  Hall,  Red  Book  of  Exchequer,  pp.  xix-xxxv. 

2  See  Jacobs,  Jews  57,  66,  67,  70-72,  99,  215,  216,  220,  221,  234;  Jewish 
Exch.  (Seld.  Soc.)  45.     On  the  gaging  of  rents  and  chirographs  of  debt 
see  Jacobs  99;  Jewish  Exch.    (Seld.  Soc.)   28,  29,  33,  34,  43-45. 

3  Rigg,  Jewish  Exch.  (Seld.  Soc.)  p.  xiii. 

4  See  Jewish  Exch.  (Seld.  Soc.)  p.  xix,  n.  1,  33,  34,  92-94,  102;  Webb, 
Question,  App.  Nos.  19,  30,  31.     See  further  Jewish  Exch.   (Seld.  Soc.) 
67,  68,  91,  93. 

6  The  Jewish  gage  of  chattels  seems  to  be  a  gage  with  immediate 
possession  of  creditor.  See  an  article  by  the  present  writer  entitled 
The  Exchequer  of  the  Jews,  18  L.  Quart.  Rev.  308.  Compare  Rigg, 
Jewish  Exch.  (Seld.  Soc.)  p.  xiii. 

6  See  the  cases  in  Jewish  Exch.  (Seld.  Soc.)  18,  63;  Les  E statutes  de- 
la  Jeuerie,  1  Stats,  of  Realm  221;  1  Madox,  Hist.  Exch.  233,  n.  (y). 
Compare  the  case  of  De  Sawston  v.  De  Senlis,  Jewish  Exch.  (Seld. 
Soc.)  53.  The  alienee  may,  however,  vouch  his  warrantor.  See  the 
case  in  Jewish  Exch.  (Seld.  Soc.)  63. 


70.     HAZELTINE:   GAGE  OF  LAND          667 

On  default  in  payment  the  creditor  may  bring  his  action 
of  Debt ;  and  execution  will  be  by  summary  processes. x  If 
his  security  on  the  land  be  enforced,  the  creditor  will  be 
given  seisina  by  the  court.2  He  may  either  sell  the  lands 
after  possession  for  a  year  and  day,  in  which  time  the  debtor 
has  a  chance  to  redeem ; 3  or,  he  may  hold  the  lands  until  he 
has  satisfied  himself  out  of  the  rents  and  profits.4 

While  the  land  is  in  his  hands  the  creditor  has  not  feudal 
seisin,  not  the  seisina  of  one  in  the  scale  of  lords  and  tenants, 
but  seisina  ut  de  vadio,  seisin  as  a  gagee;5  and  this  seisin 
of  the  Jew  or  of  his  assignee  is  protected  by  the  courts.  6 

From  the  sources  that  have  come  under  our  notice,  it  is 
not  clear  whether  the  right  of  sale  given  by  the  charters 
of  Richard  I.  and  John  indicates  that  the  land  is  at  the  end 
of  the  year  and  day  completely  forfeited  to  the  creditor, 
his  title  to  the  land  being  perfected  by  the  acquiring  of  this 
right  of  sale,  or  whether  the  creditor  is  obliged  to  account 

1  Our  sources  are  full  of  actions  of  Debt.  See,  e.  g.,  Tovey,  Anglia 
Judaica  42,  43,  50;  Prynne,  Demurrer,  part  2,  p.  11;  Cole,  Documents 
of  13th  and  14th  Centuries  285-332;  Jewish  Exch.  (Seld.  Soc.),  s.  v. 
Debt. 

The  process  of  execution  laid  down  by  Les  Estatutes  de  la  Jeuerie, 
1  Stats,  of  Realm  221,  221  a,  is  very  much  like  that  under  the  Stat. 
West.  II,  c.  18. 

2 See  Jacobs,  Jews  57,  90,  231  (and  compare  233),  234;  Webb,  Ques- 
tion, App.  No.  4;  Bracton's  Note  Book,  pi.  301;  Plac.  Abb.  (Rec. 
Com.)  p.  58;  "Exchequer  Receipt  Roll,  1185"  (with  preface  by  Hubert 
Hall)  31;  Les  Estatutes  de  la  Jeuerie,  1  Stats,  of  Realm  221a;  Gold- 
schmidt,  Geschichte  der  Juden  in  England  69,  n.  37;  Jewish  Exch. 
(Seld.  Soc.)  pp.  xiii,  xxxviii,  n.  1,  63,  and  Index  s.  v.  Seisin.  Compare 
Rigg,  Jewish  Exch.  (Seld.  Soc.)  p.  xxxv.  Similarly,  the  assignee  of 
the  Jewish  creditor  may  obtain  seisina  of  the  gaged  land  per  praecep- 
tum  Domini  Regis.  See  Webb,  Question,  App.  No.  6. 

31  Foedera  51  (see  Jacobs,  Jews  134-138);  1  Rotuli  Chartarum,  ed. 
Hardy,  93  (see  also  Tovey,  Ang.  Jud.  62-64,  and  Jacobs,  Jews  212-214) ; 
Goldschmidt,  Juden  in  England  21,  22;  Rigg,  Jewish  Exch.  (Seld.  Soc.) 
xiii.  See  Webb,  Question,  App.  No.  14.  Richard  I.'s  Carta  qua  plu- 
rimae  libertates  Judeis  conceduntur  §•  confirmantur  (1190),  1  Foedera 
51:  Et  liceat  predictis  Judeis  quiete  vendere  vadia  sua,  postquam  cer- 
tum  erit  illos  ipsa  per  unum  annum  integrum  &  unum  diem  tenuisse. 

4  See  Jewish  Exch.    (Seld.  Soc.)   xiii,  xxxviii,  n.  1,  Ivii,  19-27,  43-45, 
89-91;  Chapitles  Tuchaunz  La  Gyuerie,  Jewish  Exch.    (Seld.  Soc.)  Ivi; 
Les  Estatutes  de  la  Jeuerie,  1  Stats,  of  Realm  221  a;  Jacobs,  Jews  233. 

5  See  Jacobs,  Jews  231;  Webb,  Question,  App.  Nos.  4,  6;  Rigg,  Jew- 
ish Exch.   (Seld.  Soc.)  xiii,  xxxviii,  n.  1. 

6  See  Plac.  Abb.   (Rec.  Com.)   64,  82,  175;  Bracton's  Note  Book,  pi. 
801,  1825;  Jacobs,  Jews  191,  234;  Webb,  Question,  App.  No.  6. 

'Compare  2  Pollock  and  Maitland,  Hist.  Eng.  Law  90-92;  Wigmore, 
The  Pledge-Idea,  10  Harv.  L.  Rev.  335.  Sometimes,  by  collusion  with 


668  VIII.     PROPERTY  (IN  GENERAL) 

to  the  debtor  for  the  proceeds  of  the  sale  over  and  above 
the  amount  of  the  debt  and  interest.  The  answer  may  lurk 
in  records  of  the  Jewish  Exchequer  that  are  still  unprinted. 
In  the  thirteenth  century  one  would  certainly  expect  to 
find  an  accounting  in  cases  of  sale,  quite  as  much  as  in  cases 
where  the  creditor  is  reducing  his  claim  by  taking  the  prof- 
its of  the  land. 

If  indeed  the  creditor  satisfy  himself  out  of  the  rents  and 
profits,  he  holds  the  land  as  a  vivum  vadium.  The  debtor 
may  call  upon  the  creditor  to  account  by  the  action  of 
Account;  and  if  the  creditor  has  taken  more  than  his  debt 
and  interest,  this  surplus  belongs  to  the  debtor.  If  the 
land  be  freehold,  the  creditor  is  impeachable  for  waste,  and 
apparently  no  laches  or  lapse  of  time  is  pleadable  in  bar  to 
an  action  of  Account.1 

The  gage  of  land  with  possession  of  debtor  to  creditors 
other  than  Jews  arises  on  judgment  or  on  the  enrolment  of 
recognizances  of  debt  before  courts  of  record  or  before 
properly  authorized  public  officials  of  towns,  staples,  and 
fairs.  The  judgment  or  recognizance  under  the  Statute 
of  Westminster  the  Second  binds  lands  belonging  to  the 
debtor  at  the  time  of  the  j  udgment  or  the  recognizance  and 
also,  according  to  later  law,  lands  that  he  afterwards  ac- 
quires ;  though  with  the  writ  of  elegit,  until  recent  times, 
only  a  moiety  of  the  lands  may  be  taken  from  the  debtor  or 
from  one  who  has  purchased  the  charged  land  from  the 
debtor.  Under  the  Statute  of  Merchants  and  the  other 
acts  already  referred  to,  the  enrolled  "  statute  "  or  recog- 
nizance, accompanied  by  the  drawing  up  of  a  sealed  obliga- 
tion, binds  in  its  earlier  history  all  the  lands  owned  by  the 
debtor  at  the  time  of  making  the  recognizance ;  and,  ac- 
cording to  later  law,  lands  subsequently  acquired  by  the 
debtor  are  also  charged  by  recognizance.2 

powerful  personages,  it  was  contrived  to  defer  the  redemption  in~ 
definitely,  "  thus  compassing  by  sharp  practice  what  we  now  call  fore- 
closure." Rigg,  Jewish  Exch.  (Seld.  Soc.)  xxxvii. 

1  See  n.  4,  p.  667.    The  Jews  were  expelled  from  England  in  1290. 

'See  Stat.  Acton  Burnel,  11  Ed.  I.;  Stat.  Merc.  13  Ed.  I.;  Stat. 
West.  II,  13  Ed.  I.,  c.  18;  Stat.  5  Ed.  II.,  c.  33;  14  Ed.  III.,  Stat.  1, 
c.  11;  Stat.  Staple,  27  Ed.  III.,  Stat.  2,  c.  9;  Stat.  36  Ed.  III.,  c.  7; 
Stat.  10  Hen.  VI.,  c.  1;  Stat.  23  Hen.  VIII.,  c.  6;  Stat.  32  Hen.  VIII.,. 


70.     HAZELTINE:   GAGE  OF  LAND          669 

On  default  in  payment  the  creditor  may  bring  his  action 
of  Debt  on  the  personal  obligation. *  If,  however,  advantage 
be  taken  of  the  special  remedies  on  the  recognizance  or 
"  statute,"  possession  of  land  bound  by  the  lien  —  whether 
the  land  be  now  in  the  hands  of  the  debtor  himself,  the 
debtor's  heir  who  is  of  age  or  the  debtor's  feoffee  —  is  de- 
livered to  the  creditor,  his  personal  representatives  or  as- 
signs, to  be  held  until  the  amount  of  the  claim  is  levied  from 
the  rents  and  profits  or  paid  outright,  or  until  the  debtor's 
interest  in  the  land  expires.  2 

In  the  enforcement  of  the  lien,  therefore,  the  creditor 
holds  the  land  as  a  "  gage "  in  the  nature  of  the  vivum 
vadium. 3  The  acts  and  the  writs  framed  upon  them  state 
that  the  creditor  holds  or  is  seised  of  the  land  en  noun  de 
•frank  tenement,  ut  liberum  tenementum;  at  the  same  time 
giving  him,  his  executor,  administrator,  or  assign,  the  free- 
holder's possessory  actions  of  Novel  Disseisin  and  Redis- 

c.  5 ;  Stat.  2  &  3  Ed.  VI.,  c.  31 ;  Reg.  Brev.  f .  146-153,  299 ;  Viner,  Abr. 
tit.  Stats.  Merchants  &c.;  Bac.  Abr.  tit.  Execution  (B);  1  Ro.  Abr. 
311,  892;  2  Ro.  Abr.  466,  472,  473;  Bro.  Abr.  tit.  Stat.  Merc.  &  Stat. 
Staple;  F.  N.  B.  f.  266,  267  D.;  Coke,  2  Inst.  395,  396,  679;  Co.  Lit. 
289b,  290a;  Wright,  Tenures  170,  171;  2  Lilly,  Pract.  Reg.  658,  659; 
2  Blackstone,  c.  10,  §  IV.,  V.;  2  idem  c.  20,  3  idem  c.  26,  §  4,  4  idem  c. 
33,  §111.;  Co.  Lit.  191a,  n.  VI.  9;  2  Tidd,  Practice  1101,  1102;  2  Wms. 
Saunders,  197,  n.  (a),  199,  n.  (c),  208,  n.  (u),  217,  n.  (3),  218,  n.  (c) ; 
9  Reeves,  Hist.  Eng.  Law  96,  97,  3  idem  289;  Williams,  Real  Prop. 
€62,  263,  266,  283,  284,  371,  372,  407,  408.  On  the  modern  law  see 
Coote,  Mortgage,  2nd  ed.,  68,  72,  82,  83;  Williams,  Real  Prop.  261  et 
seq. 

Quite  in  the  spirit  of  the  medieval  law  it  seems  that  chattels,  though 
liable  in  the  hands'  of  the  debtor  on  a  "  statute  merchant "  or  "  statute 
staple,"  cannot  be  followed  into  the  hands  of  purchasers.  See  2  Ro. 
Abr.  472;  Bac.  Abr.  tit.  Execution  (B). 

^ee  Stat.  Merc.  13  Ed.  L;  Stat.  23  Hen.  VIII.,  c.  6;  F.  N.  B.  f.  122 
D;  Viner,  Abr.  tit.  Stat.  Merc.  &c.;  Bro.  Abr.  tit.  Stat.  Marc.  &c.;  Bac. 
Abr.  tit.  Execution  (B).  As  to  a  "statute  staple"  see,  however,  Viner, 
Abr.  tit.  Stat.  Merc.  &c.;  2  Lilly,  Pract.  Reg.  659. 

2  Stat.  West.  II,  c.  18;  Stat.  Merc.  13  Ed.  L;  Stat.  Staple,  27  Ed. 
III.,  c.  9;  Y.  B.  15  Ed.  III.,  327;  Y.  B.  15  Hen.  VII.,  16;  Y.  B.  2  Rich. 
III.,  8;  Y.  B.  17  Ed.  III.,  3;  Reg.  Brev.  f.  299;  F.  N.  B.  f.  130-132, 
266  A.;  F.  N.  B.  8  ed.  304,  n.  (a)  ;  1  Ro.  Abr.  311;  2  Ro.  Abr.  472-475, 
478;  Bro.  Abr.  tit.  Stat.  Marc.,  pi.  16,  43,  49,  50;  Viner,  Abr.  tit.  Stat. 
Merc.  &c.;  Bac.  Abr.  tit.  Execution  (B);  Coke,  2  Inst.  395,  396,  471, 
678-680;  Co.  Lit.  290a;  2  Blackstone  c.  10,  §  5,  3  idem  c.  26,  §4;  2  Wms. 
Saunders,  220,  n.  (3),  221,  n.  (3),  260,  n.  (6);  2  Tidd,  Prac.  1083,  1084; 
Wms.,  Real  Prop.  268.  Compare  Wms.,  Real  Prop.  281,  282.  On  the 
judgment  creditor's  right  of  sale  in  modern  law  see  Wms.,  Real  Prop. 
268. 

8  See  Coke,  2  Inst.  679,  note;  2  Blackstone  c.  10,  §  IV. 


670  VIII.     PROPERTY  (IN  GENERAL) 

seisin.  Indeed,  the  Statute  of  the  Staple  explicitly  declares 
that  the  merchant  creditor  is  actually  to  have  an  "  estate 
of  freehold"  (estat  de  frank  tenement).  In  legal  literature 
the  creditor  in  possession  is  referred  to  as  a  "  tenant  by 
statute,"  and  it  is  said  that  he  has  an  "  estate  by  statute," 
a  "  conditional  estate,"  an  "  estate  defeasible  on  condition 
subsequent."  Notwithstanding  all  this,  however,  the  ex- 
act legal  nature  of  the  creditor's  interest  in  the  land  has 
not  yet  been  fully  stated. 

One  might  be  inclined  to  think  at  first  sight  that  the  inten- 
tion of  the  medieval  legislator  was  actually  to  give  the  cred- 
itor an  estate  of  freehold;  and  from  the  uncertainty  of  the 
holding,  which  was  in  reality  quousque,  it  would  seem  perhaps 
that  these  "  estates  by  statute  "  ought,  in  strict  legal  theory, 
to  have  been  treated  as  freehold  estates.2  The  law  stopped 
short  of  this,  however.  The  acts  were  interpreted  to  mean 
that  the  creditor  has  not  a  "  freehold  estate  "  descendible 
to  the  heir,  but  a  "  chattel  real  "  going  to  the  personal  repre- 
sentative on  the  creditor's  death.  3  In  the  quaint  language 
of  Lord  Coke,  the  ut  of  the  expression  ut  liberum  tenemen- 
tum  is  merely  "  similitudinary,"  the  tenant  by  statute  hav- 
ing a  "  similitude  of  a  freehold,  but  nullum  simile  est 
idem."  4 

The  creditor's  interest  in  the  land  being  thus  regarded 
by  the  law  as  a  chattel  real  protected  at  the  same  time  by 
the  possessory  actions  of  the  freeholder,  the  commercial 
classes,  for  whose  benefit  these  securities  were  chiefly  intro- 
duced, gained  thereby  two  very  significant  advantages. 
The  holding  of  the  creditor,  his  personal  representatives  or 
assignees,  was  perfectly  secure;  for,  if  ousted  from  the 
land,  their  seisin  might  be  recovered  by  an  assize.  5  Again, 

'See  Reg.  Brev.  f.  299;  Rastell,  Entries,  543,  545;  F.  N.  B.  f.  178  G, 
189  I;  2  Ro.  Abr.  475;  Coke,  2  Inst.  396;  2  Blackstone  c.  10,  §  IV.,  V., 

3  idem  c.  26,  §4;  2  Wms.  Saunders  203,  n.  (1);  Wms.,  Real.  Prop.  268. 

2  See  Butler's  note  to  Co.   Lit.  208a;   Leake,  Digest  205.     Compare 
F.  N.  B.  f.  178  G. 

3  28  Ass.  pi.  7;  F.  N.  B.  f.  178;  Coke,  2  Inst.  396;  Co.  Lit.  42a,  43b; 

4  Co.  82a,  Corbet's  Case;  2  Blackstone  ch.  10,  §  V. ;  Butler's  note  to  Co. 
Lit.  208a;  Leake,  Digest  205, 

4  Co.  Lit.  43b. 

6  Compare  Savigny's  theory  as  to  the  gagee's  "  derived  possession " 
(abgeleiteter  Besitz).  For  the  literature  and  a  criticism  of  the  theory 


70.     HAZELTINE:   GAGE  OF  LAND          671 

on  the  creditor's  death,  not  only  the  debt  but  its  security 
thus  went  to  the  creditor's  executor,  not  to  his  heir;  the 
law,  says  Blackstone,  "  judging  it  reasonable,  from  a  prin- 
ciple of  natural  equity,  that  the  security  and  remedy  should 
be  vested  in  them,  to  whom  the  debts  if  recovered  would  be- 
long."  ' 

The  creditor  in  possession  has,  therefore,  the  freeholder's 
possessory  actions ;  but  at  the  same  time  the  debtor  remains 
seised  of  his  freehold  estate,  and  should  the  creditor  be 
ousted,  the  debtor  too  may  bring  his  assize  of  Novel  Dis- 
seisin, for  he  has  thus  been  disseised  of  his  free  tenement. 
As  soon,  however,  as  either  the  debtor  or  the  creditor  re- 
covers possession,  the  writ  of  the  other  shall  abate.2 

As  soon  as  the  amount  of  the  creditor's  claim  is  either 
levied  by  the  creditor  out  of  the  rents  and  profits  or  paid 
outright  by  the  debtor,  the  debtor  or  the  feoffee  of  the 
debtor  is  again  entitled  to  the  land  now  freed  from  the  lien.3 
It  seems  that  in  certain  very  rare  cases  the  conusor  has  a 
right  of  re-entry.  The  usual  method  of  regaining  posses- 
sion, however,  is  by  bringing  a  writ  of  scire  facias;  and  by 
a  special  form  of  this  writ  the  conusee  may  be  compelled  to 
restore  the  issues  over  and  above  the  sum  due.4 

The  medieval  gage  of  land  with  possession  of  the  debtor 
until  default  is,  accordingly,  either  a  gage  of  certain  specific 
lands  or  a  gage  of  all  the  lands  of  the  debtor,  the  security 
being  created  by  a  contract  under  seal  and  of  record.5 

see  1  Dernburg,  Pandekten  (1900)  §  172.  See  also  2  Puchta,  Institu- 
tionen  (1893)  §229;  3  Dernburg,  Das  biirgerliche  Recht  (1904)  §10. 

aSee  Stat.  Merc.  13  Ed.  L;  F.  N.  B.  f.  130,  131;  Co.  Lit.  43b; 
2  Blackstone,  ch.  10,  §V.;  Butler's  note  to  Co.  Lit.  208a.  In  Butler's 
note  to  Co.  Lit.  208a  these  principles  as  to  the  nature  of  the  tenant 
by  statute's  interest  in  the  land  are  compared  with  the  rules  of  Equity 
in  regard  to  the  classical  mortgage  by  conditional  feoffment. 

1F.  N.  B.,  8th  ed.  412,  n.   (e),  citing  12  Hen.  6,  4. 

3 See  Stat.  Merc.  13  Ed.  I.;  Coke,  2  Inst.  396,  678,  679;  and  authori- 
ties cited  in  n.  2,  p.  668,  supra. 

*See  Coke,  2  Inst.  679,  note;  Viner,  Abr.  tit.  Stat.  Merc.  &c.  On  the 
doctrine  of  Equity  as  to  an  accounting  by  the  conusee,  see  Shep. 
Touch.  357,  n.  (i). 

Williams,  Real  Property  (1901)  226,  n.  (e) :  "Statutes  merchant 
and  staple,  and  recognizances  in  the  nature  of  a  statute  staple  were 
modes  of  charging  lands  with  the  payment  of  a  debt  under  certain  stat- 
utes, which,  having  long  been  obsolete,  were  repealed  in  1863." 

6  One  of  the  most  significant  features  of  the  modern  development 
is  the  transformation  of  the  old  mortgage  of  Littleton  and  the  classi- 


672  VIII.     PROPERTY   (IN  GENERAL) 

Looking  at  execution  or  the  enforcement  of  the  gage  on 
default,  we  may,  furthermore,  classify  such  securities  as 
usufruct-gage  and  as  property-gage.  The  creditor  may 
reduce  his  claim  out  of  the  rents  and  profits  only ;  or  he  may 
be  entitled  to  the  res  itself.  The  principle  of  the  usufruct- 
gage  underlies  both  gages  to  Jews  and  securities  created 
by  "  statutes  "  or  recognizances.  In  the  right  of  sale  given 
to  Jewish  creditors  one  may  see  the  principle  of  the  prop- 
erty-gage, although  whether  this  right  of  sale  indicates 
merely  that  the  land  is  forfeited,  or  whether,  on  sale,  the 
surplus  must  be  given  to  the  debtor,  is  not  clear.  It  is, 
furthermore,  worth  observing  that,  should  the  debtor's  in- 
terest in  the  land  expire  while  the  land  is  in  the  hands  of  the 
creditor  under  a  "  statute,"  there  is  really  a  forfeiture  of 
the  debtor's  interest. 

It  will  be  seen,  therefore,  that  whether  the  medieval  cred- 
itor take  immediate  possession  or  only  on  default  of  the 
debtor,  the  principle  is  the  same.  In  either  case  the  security 
is  a  usufruct-gage  or  it  is  a  property-gage,  or  it  is  indeed 
a  combination  of  the  two.  Though  the  tracing  of  the 
development  down  to  our  own  day  lies  beyond  the  scope  of 
the  present  paper,  it  is  believed  that  this  very  same  concep- 
tion lies  at  the  basis  of  much  of  the  modern  English  law.1 

cal  common  law  into  a  form  of  security  where  the  debtor  usually  re- 
mains in  possession  until  default  and  where,  instead  of  foreclosure, 
the  mortgaged  land  may  under  certain  circumstances  be  sold,  either 
under  a  power  of  sale  or  by  order  of  the  court,  the  surplus  going  to 
the  debtor.  See,  further,  Franken,  Franzosisches  Pfandrecht,  8,  9,  164- 
170;  5  Glasson,  Histoire  du  droit  et  des  institutions  de  PAngleterre, 
485;  6  idem  385-406;  Williams,  Real  Property  (1901)  527-559. 

1  In  modern  German  law  it  is  possible  to  satisfy  the  claim  of  the 
creditor  out  of  the  fruits  of  the  land  (Zwangsverwaltung)  or  out  of  the 
substance  of  the  res  itself  (Zwangsversteigerung) .  See  Das  Reichs- 
gesetz  iiber  die  Zwangsversteigerung  und  Zwangsverwaltung  of  March 
24,  1897,  revised  May  20,  1898. 


71.  CHANGES  IN  THE  ENGLISH  LAW  OF  REAL 
PROPERTY  DURING  THE  NINETEENTH  CEN- 
TURY1 

BY  ARTHUR  UNDERBILL,  2 

THE  two  lectures  which  have  been  allotted  to  me  cannot 
compete  in  point  of  interest  with  any  of  those  entrusted 
to  my  colleagues.  The  subject  is  of  the  earth,  earthy.  It 
has  not  the  tragic  and  human  element  of  criminal  law,  nor 
the  political  flavour  of  Constitutional  or  International  law. 
Mr.  Blake  Odgers  and  Mr.  Birrell  have,  doubtless,  had  to 
struggle  with  unpromising  subjects,  but  I  have  neither  their 
charm  of  style  nor  their  wit  to  assist  me. 

Moreover,  the  law  of  Real  Property  is  still  in  a  transition 
state,  and  most  of  the  changes  that  have  been  made  (with 
the  exception  of  Lord  Cairns's  Settled  Land  Acts  and  Lord 
Halsbury's  Land  Transfer  Act)  are  of  the  somewhat  tinker- 
ing and  patchy  character  so  dear  to  the  British  Parliament. 
However,  although  the  subject  is  not  amusing,  I  will  en- 
deavour, as  Lord  Bacon  sententiously  puts  it,  "  rather  to 
excite  your  judgment  briefly  than  to  inform  it  tediously." 

Now,  although  numerous  changes  have  been  made  in  the 
law  affecting  real  estate  during  the  past  century,  the  most 
important  may  be  broadly  reduced  to  nine  classes,  viz., 
those  relating  to  (1)  settled  land,  (2)  the  capacity  of  per- 
sons under  disability,  (3)  the  effect  of  death  on  real  estate, 

1This  Essay  was  first  published  in  A  Century  of  Law  Reform,  1901 
(London:  MacMillan  &  Co.),  cc.  IX,  X,  pp.  280-340. 

9  Barrister  of  Lincoln's  Inn.  M.  A.  Dublin  University,  LL.  D.  1881 ; 
sometime  Reader  of  the  Law  of  Property  in  the  Inns  of  Court;  one  of 
the  six  Conveyancing  Council  to  the  High  Court  of  Justice,  1905. 

Other  Publications:  A  Summary  of  the  Law  of  Torts,  1873,  8th  ed. 
1905;  A  Treatise  on  the  Law  of  Private  Trusts,  1878,  6th  ed.  1904; 
Principles  of  the  Law  of  Partnership,  1899,  <2d  ed.  1906;  Principles  of 
the  Interpretation  of  Wills  and  Settlements,  1900,  3d  ed.  1906  (with 
Mr.  Strahan) ;  General  Editor  of  the  Encyclopedia  of  Forms  and  Prec- 
edents, 16  vols.,  1902-1905. 


674  VIII.     PROPERTY  (IN  GENERAL) 

(4)  the  acquisition  of  title  by  long  enjoyment,  (5)  copy- 
holds and  commons,  (6)  landlord  and  tenant,  (7)  the  law 
of  tithes,  (8)  the  relation  of  legal  and  equitable  rights,  and, 
lastly,  (9)  changes  in  the  forms  by  which  property  is  made 
to  pass  from  owner  to  owner  —  in  other  words,  changes  in 
the  practice  of  Conveyancing. 

I  propose  to  commence  with  the  most  important  of  all, 
viz., 

(1)   Changes  in  the  Law  of  Settled  Land 

Land  can  be  settled  either  by  deed  or  will.  Moreover,  it 
can  be  settled  in  divers  ways.  People  of  moderate  fortune 
usually  settle  land  in  trust  for  sale  on  the  death  of  the  first 
life  tenant,  the  proceeds  being  divided  among  his  children ; 
or,  instead  of  providing  for  its  sale,  they  divide  the  prop- 
erty itself  among  the  children.  No  essential  change  has 
been  made  in  that  form  of  settlement.  But  there  is  another 
and  much  more  important  form  of  settlement  of  land  which 
has  for  its  object  the  exact  converse  of  the  first.  Instead 
of  providing  for  an  equal  division  of  the  land  (or  the  pro- 
ceeds of  its  sale)  among  a  class  of  children,  it  aims  at  keep- 
ing the  property  intact  as  long  as  possible  in  the  settlor's 
line  of  descendants,  one  male  at  a  time  having  the  exclusive 
possession  of  it  during  his  life,  and  the  eldest  son  of  the 
settlor  and  the  male  heirs  of  his  body  being  preferred  to  the 
younger  sons  and  their  male  issue.  Such  a  form  of  settle- 
ment is  called  strict  settlement.  It  rests  on  two  foundations 
—  primogeniture  and  estates  for  life.  If  primogeniture  and 
the  creation  of  life  estates  were  forbidden,  strict  settlements 
would  inevitably  fall  to  the  ground.  As  things  stand,  it  is 
not  too  much  to  say  that  nearly  all  the  great  estates,  com- 
prising perhaps  the  greater  part  of  the  land  of  England, 
are  held  in  strict  settlement. 

I  have  heard  it  said  that  a  great  Conveyancer  of  a  past 
generation  once  annoyed  the  judges  of  the  Common  Pleas 
by  commencing  an  argument  with  the  definition  of  an  estate 
in  fee  simple.  Possibly  some  of  you  may  feel  equally  an- 
noyed with  me  if  I  venture  to  give  a  popular  sketch  of  a 
strict  settlement.  But  if  some  sages  of  the  law  have  hon- 


71.     UNDERBILL:   19th    CENTURY   CHANGES  675 

cured  me  with  their  presence  to-night,  I  expect  that  there 
are  also  some  legal  babes  and  sucklings  of  whom  it  is  neces- 
sary to  think. 

Speaking  broadly,  then,  the  general  framework  of  a  strict 
settlement  of  land  is  as  follows:  The  settlor  conveys  it  to 
the  use  of  himself  for  life,  and  after  his  death  to  the  use 
that  his  widow  may  receive  a  rent  charge  (or  jointure,  as 
it  is  called).  Subject  to  these  life  interests  he  gives  it  to 
the  use  of  trustees  for  a  long  term  of  years  (500  or  1000) 
upon  trust  to  raise  by  mortgage  of  that  term  a  specified  sum 
of  money  for  the  portions  of  his  younger  children,  and  sub- 
ject thereto  to  the  use  of  his  first  and  other  sons  successively 
and  the  heirs  male  of  their  bodies,  with  an  ultimate  remain- 
der, in  default  of  issue,  to  the  settlor  himself  in  fee  simple. 

It  will  be  seen  that,  on  the  face  of  it,  such  a  settlement 
merely  ties  up  the  property  during  the  settlor's  life;  for, 
upon  his  death  his  eldest  son  as  first  tenant  in  tail  could 
(formerly  by  process  called  a  common  recovery  and  now 
by  a  simple  enrolled  deed)  convert  his  estate  tail  into  a  fee 
simple,  and  by  paying  the  portions  of  his  younger  brothers 
and  sisters,  make  himself  the  absolute  owner  of  the  property. 

There  is  no  certain  method  of  avoiding  this,  because  the 
law  does  not  permit  property  to  be  settled  by  way  of  • 
mainder  on  the  unborn  child  of  an  unborn  child,1  or  b~ 
of  trust  or  executory  limitation  beyond  a  life  or 
being  and  twenty-one  years  afterwards.2 

In  practice,  however,  the  property  is  rareh 
go  out  of  settlement,  for  directly  an  eldest  p 
he  is  induced,  like  some  latter-day  Esau, 
right  for  a  financial  mess  of  pottage. 

The  alternative   is   gently   placed  \ 
duty  to  the  family  by  surrendering 
receiving  instead  a  future  life  estat' 
allowance,  or  remain  during  you- 
funds.     Practically,  even  if  fam' 
to  consent  willingly,  he  would  1 
ing  his  father's  lifetime  he  ca 

1  Whitby  v.  Mitchell,  44  Ch.  D.  8 
*Cadell  v.  Palmer:  Tudor's  L. 


676          VIII.    PROPERTY  (IN  GENERAL) 

into  a  "  base  fee  "  which  is  scarcely  negotiable  for  purposes 
of  mortgage.  He  therefore  yields ;  he  and  his  father  disen- 
tail the  property,  and  then  resettle  it,  restoring  the  father's 
life  estate,  giving  a  life  estate  to  the  son  on  the  father's  death, 
and  an  estate  in  tail  male  to  his  sons  successively.  When  he 
marries  and  his  eldest  son  comes  of  age,  the  same  ingenious 
process  is  repeated. 

The  system  of  strict  settlement,  in  short,  depends  upon 
providing  by  means  of  constant  resettlements,  that  no  per- 
son of  full  age  shall  be  entitled  to  a  greater  estate  than  an 
estate  for  life.  This  is  the  keystone  of  the  edifice,  and  con- 
sequently the  law  of  strict  settlement  is,  apart  from  powers 
contained  in  the  settlement  itself,  identical  with  the  law  re- 
lating to  life  estates. 

Now,  with  these  explanatory  remarks  let  us  contrast  the 
state  of  settled  land  at  the  beginning  and  end  of  the  19th 
century. 

At  the  beginning,  unless  the  will  or  settlement  by  which 

the  property  was  settled  contained  express  powers   (which 

as  frequently  not  the  case),  a  tenant  for  life  could  neither 

exchange,  nor  partition  the  settled  property,  however 

ble  it  might  be.    If  the  estate  consisted  of  a  large  tract 

country,  fruitful  in  dignity  but  scanty  in  rent,  and 

if  the  portions  of  younger  children  charged  on  it 

he  too  often  found  it  a  damnosa  hcereditas;    the 

payment   of  interest   on   the   portions,   leaving 

for  the  unfortunate  life  tenant  to  live  on, 

&  him  from  making  improvements,  or  even 

~ty   in   a  decent   state  of  repair.      Nay, 

d  money  in  improvements,  the  money 

^o  the  detriment  of  his  younger  chil- 

1  down  the  mansion  house,  however 

*•  be,  nor  even,  strictly,  make  any 

Unless  expressly  made  unim- 

-<ot  open  new  mines. 

Silities,   what   pressed   still 

levelopment  of  the  estate 

.ke  long  leases.      Conse- 

beneath  a  settled  prop- 


71.     UNDERBILL:   19th    CENTURY   CHANGES  677 

erty,  or  the  growth  of  the  neighbouring  town  made  it  ripe 
for  building  sites  (the  rents  for  which  would  greatly  exceed 
the  agricultural  rent)  nothing  could  lawfully  be  done.  The 
tenant  for  life  could  not  open  mines  himself,  even  if  he  had 
the  necessary  capital  for  working  them;  nor,  even  if  unim- 
peachable for  waste,  could  he  grant  leases  of  them  to  others 
for  a  term  which  would  repay  the  lessees  for  the  necessary 
expenditure  in  pits  and  plant;  nor  could  he  grant  building 
leases  or  sell  for  building  purposes  at  fee  farm  rents.  In 
some  settlements  powers  were  expressly  inserted,  enabling 
the  trustees  to  grant  such  leases  and  to  sell,  exchange,  and 
partition.  But  frequently,  especially  in  wills,  such  powers 
were  omitted,  and  in  such  cases  the  only  means  of  doing 
justice  to  the  land,  was  to  apply  for  a  private  Act  of  Par- 
liament authorising  the  trustees  or  the  life  tenant  to  sell, 
exchange,  partition,  or  lease.  But  such  Acts  were  expen- 
sive luxuries,  only  open  to  the  rich,  and  beyond  the  means 
of  most  country  gentlemen  of  moderate  means.  Moreover, 
€ven  the  barring  of  the  entail,  in  order  to  make  a  new  or 
more  effectual  settlement,  necessitated  the  grotesque  and 
cumbrous  proceeding  known  as  a  common  recovery,  a  pre- 
tended action  by  a  collusive  plaintiff  against  the  tenant  in 
tail,  for  the  recovery  of  the  land.  The  latter  pleaded  (quite 
untruly)  that  he  had  bought  the  lands  from  a  man  of  straw 
(usually  the  Crier  of  the  Court)  who  had  warranted  the 
title,  and  asked  that  this  person  should  be  "  vouched  to  war- 
ranty," i.  e.  called  on  to  defend  the  action.  The  Crier  being 
called,  admitted  the  warranty,  and  made  default.  There- 
upon judgment  was  given  that  the  lands  should  be  given  up 
to  the  plaintiff,  and  that  the  Crier  should  convey  lands  of 
equal  value  to  the  tenant  in  tail  under  his  fictitious  warranty, 
which  he  was  of  course  incapable  of  doing.  What  would 
have  happened  if  the  Crier  had  subsequently  come  into  a 
fortune  is  too  painful  to  contemplate.  In  some  cases  a  single 
voucher  was  deemed  sufficient;  in  others  a  double  voucher 
was  required.  In  all  cases  the  proceeding  was  a  scandalous 
farce,  in  which  judges,  counsel,  solicitors,  and  the  parties, 
were  all  behind  the  scenes  and  enjoying  the  fun.  It  was 
described  by  the  Attorney  General  in  1833  as  "  involving 


678  VIII.     PROPERTY   (IN  GENERAL) 

enormous  and  unnecessary  expense,  and  necessitating  the  con- 
duct of  proceedings  through  no  less  than  twenty  offices,  in 
each  of  which  danger,  delay,  and  expense  had  to  be  faced." 
Thus  matters  stood  in  the  year  1801  and  thus  they  con- 
tinued down  to  the  year  1833.  In  those  days  when  agricul- 
ture was  the  most  profitable  of  industries,  when  machinery 
and  railways  and  steam  navigation  had  not  yet  produced 
any  great  demand  for  coal  and  iron,  and  when  towns  did  not 
as  now  overflow  their  ancient  boundaries  with  astonishing 
rapidity,  the  tying  up  of  land  in  the  way  I  have  described 
gave  rise  to  but  few  hardships.  Indeed,  we  find  the  Real 
Property  Commissioners  in  1829  singing  a  paean  over  the 
system  as  one  approaching  perfection.  In  their  first  report 
they  say :  "  Settlements  bestow  upon  the  present  possessor 
of  an  estate,  the  benefits  of  ownership  and  secure  the  prop- 
erty to  his  posterity.  The  existing  rule  respecting  perpetui- 
ties has  happily  hit  the  medium  between  the  strict  entails 
which  prevail  in  the  northern  part  of  the  island,  and  by 
which  the  property  is  for  ever  abstracted  from  commerce, 
and  the  total  prohibition  of  substitutions,  and  the  excessive 
restrictions  of  the  power  of  devising  established  in  some 
countries  on  the  Continent  of  Europe.  In  England  families 
are  preserved,  and  purchasers  always  find  a  supply  of  land 
in  the  market."  That,  however,  was  too  optimistic  a  view, 
and  even  the  Commissioners  themselves  recommended  the 
abolition  of  the  absurd  method  of  barring  estates  tail  by 
Common  Recovery,  and  the  substitution  of  a  simple  en- 
rolled deed  of  conveyance,  a  recommendation  which  was  car- 
ried into  effect  in  1833  by  the  Act  for  the  abolition  of  Fines 
and  Recoveries.1 

However,  even  that  measure  did  not  pass  without  oppo- 
sition, one  argument  being,  I  believe,  that  it  would  render 
useless  the  "lean  and  wasteful  learning"  on  the  subject 
which  was  then  stored  away  in  the  brains  of  Conveyancing 
Counsel,  a  learning  which  Shakespeare  with  fine  audacity 
attributes  to  no  less  a  person  than  the  Prince  of  Denmark 
when  he  says,  "  This  fellow  might  be  in's  time  a  great  buyer 
of  land,  with  his  statutes,  his  recognizances,  his  fines,  his 

1 3  and  4  Will.  IV.  c.  74. 


71.     UNDERBILL:    19th    CENTURY   CHANGES  679 

double  vouchers,  his  recoveries:  is  this  the  fine  of  his  fines, 
and  the  recovery  of  his  recoveries,  to  have  his  fine  pate  full 
of  fine  dirt?  will  his  vouchers  vouch  him  no  more  of  his  pur- 
chasers, and  double  ones  too,  than  the  length  and  breadth  of 
&  pair  of  indentures  ?  " l 

Thus  matters  stood  until  the  early  years  of  the  reign  of 
that  great  and  gracious  Lady  whose  loss  we  are  now  lament- 
ing. By  the  Drainage  Acts,2  tenants  for  life  and  other 
limited  owners,  were  empowered,  with  the  leave  of  the  Court 
of  Chancery,  to  make  permanent  improvements  in  the  way  of 
drainage,  and  to  charge  the  expenses  with  interest  on  the 
inheritance. 

In  1864  still  larger  powers  of  improving  land  were  given 
to  tenants  for  life,  by  the  Improvement  of  Land  Act3  of 
that  year,  which  enables  tenants  for  life  with  the  sanction 
of  the  Enclosure  Commissioners  (now  the  Board  of  Agri- 
culture) to  raise  money  by  way  of  rent  charge  for  divers 
-specified  improvements,  including  draining,  improvement  of 
watercourses,  embanking,  enclosing,  fencing,  reclamation  of 
land,  the  making  of  roads,  tramways,  railways,  and  canals, 
the  cleaning  of  land,  the  erection  and  improvements  of  cot- 
tages and  buildings,  planting,  the  construction  of  piers, 
and  other  matters  too  numerous  to  mention  in  detail.  To 
these  were  added  by  the  Limited  Owners  Residences  Acts, 
1870 4  and  1871, 5  and  the  Limited  Owners  Reservoir  and 
Water  Supply  Act,  1877,  the  erection  or  completion  of,  or 
^in  addition  to  a  mansion  house,  and  the  construction  of 
permanent  waterworks. 

These  Acts  were  doubtless  of  great  value,  but  they  were 
of  small  importance  compared  with  a  statute  passed  in  the 
year  1856  known  as  an  Act  to  facilitate  leases  and  sales 
of  settled  estates.6  That  Act  after  being  amended  by  a 
series  of  statutes  was  repealed  and  the  whole  subject  re- 
-enacted in  a  modified  form  by  the  Settled  Estates  Act,  1877,7 

1  Hamlet,  Act  V.  sc.  1. 

« 3  and  4  Viet.  c.  55  and  8  and  9  Viet.  c.  56. 

8  27  and  28  Viet.  c.  114. 

*33  and  34  Viet.  c.  56. 

5  34  and  35  Viet.  c.  84. 

6 19  and  20  Viet.  c.  120, 

7  40  and  41  Viet.  c.  18. 


680  VIII.     PROPERTY   (IN  GENERAL) 

usually  known  to  us  as  "  Marten's  Act  "  after  its  respected 
author,  Sir  Alfred  Marten,  the  present  Chairman  of  the 
Board  of  Studies  of  the  Council  of  Legal  Education. 

The  Settled  Estates  Acts  enabled  the  Court  of  Chancery 
to  sanction  the  sale,  exchange,  or  partition  of  settled  land 
and  the  granting  of  leases  not  exceeding  in  duration  21  year& 
for  an  agricultural  or  occupation  lease,  40  years  for  a  min- 
ing lease  or  water-mill  or  water-way  lease,  60  years  for  a  re- 
pairing lease,  or  99  years  for  a  building  lease,  unless  the 
Court  should  be  satisfied  that  it  was  usual  in  the  district 
and  for  the  benefit  of  the  property  that  longer  leases  should 
be  granted. 

They  also  authorised  the  tenant  for  life,  without  any 
leave  of  the  Court,  to  grant  leases  not  exceeding  21  years 
unless  the  settlement  expressly  negatived  such  power. 

The  Settled  Estates  Acts  governed  the  subject  between 
1856  and  1882.  Under  them  a  tenant  for  life,  apart  from 
express  power  in  the  settlement,  could  only  sell  or  lease  the 
settled  land  for  longer  than  21  years  under  an  order  of  the" 
Court. 

For  some  time  before  1882,  an  agitation  had  sprung  up 
for  the  total  prohibition  of  life  estates.  The  late  Mr.  Joseph 
Kay,  Q.  C.,  was  perhaps  the  ablest  advocate  of  the  reform- 
ers, and  wrote  a  very  able  and  interesting  book  on  the  sub- 
ject called  Free  Trade  in  Land.  It  was  there  urged  that 
life  estates  complicate  titles  and  make  transfers  difficult  and 
costly;  that  they  take  the  control  of  children  (particularly 
an  eldest  son)  out  of  his  father's  hands,  and  prevent  "  the 
sale  and  breaking  up  of  the  great  estates  when  change  of 
circumstances,  or  poverty,  or  misfortune,  or  bad  manage- 
ment, or  immorality  would  otherwise  bring  land  into  the 
market." 

On  the  other  hand,  we  of  a  conservative  disposition  (I 
say  we,  for  I  took  an  active  part  in  the  controversy) 
pointed  out,  that  if  settlements  of  personal  property  were 
allowed,  but  settlements  of  land  were  forbidden,  it  would 
be  a  terrible  injustice  to  landowners.  As  the  late  Mr.  Os- 
borne  Morgan  put  it,  "  It  is  scarcely  too  much  to  say, 
that  to  a  good  many  people  a  proposal  to  abolish  marria^ 


71.     UNDERBILL:    19th    CENTURY    CHANGES  681 

settlements  would  be  little  less  startling  than  a  proposal  to 
abolish  marriage  itself.  Even  grandfathers  have  their  feel- 
ings, nor  are  fathers  or  husbands  always  to  be  trusted; 
and  few  country  gentlemen  would  regard  with  complacency 
a  measure  of  law  reform  which  might  in  certain  eventualities, 
consign  their  daughters  or  their  daughters'  offspring  to  the 
workhouse  or  the  streets.  A  law,  therefore,  which  would 
permit  no  limitation  of  land  except  in  fee  simple,  would 
render  it  very  difficult  for  a  landowner  to  make  a  suitable 
provision  for  his  family  after  his  death.  Under  such  a  law, 
a  country  gentleman  could  not  give  a  life  interest  nor  a 
jointure  to  his  widow,  he  could  not  make  a  proper  provision 
for  the  event  of  one  or  more  of  his  children  dying  under 
age.  He  could  certainly  not  protect  his  daughters  or  their 
issue  against  the  rapacity  or  extravagance  of  an  unprinci- 
pled or  thriftless  husband  or  father.  It  is  easy  to  see  that 
such  a  measure,  simple  as  it  sounds,  would  amount  to  a  social 
revolution ;  its  consequences  would  be  absolutely  incalcu- 
lable." 

Under  these  circumstances  some  of  us  urged  that  instead 
of  rashly  abolishing  life  estates,  an  extension  of  powers  of 
management  and  sale  should  be  granted  to  life  tenants ;  and 
this  idea  having  commended  itself  to  the  late  Earl  Cairns 
and  others,  including  that  great  real  property  lawyer,  Mr. 
Wolstenholme,  a  Bill  was  drafted  by  the  latter,  and  safely 
piloted  through  Parliament  by  the  former,  and  is  now 
known  as  the  Settled  Land  Act,  1882.1  It  is  impossible, 
having  regard  to  the  time  at  my  disposal  to  give  more  than 
the  merest  sketch  of  the  provisions  of  this  great  Act,  the 
greatest  real  property  Act,  I  think,  of  the  century. 

The  broad  policy  on  which  the  Act  of  1882  is  founded, 
was,  in  the  words  of  the  late  Lord  Justice  Chitty  in  Re  Mundy 
and  Roper  (reported  in  1899,.  1  Ch.  p.  288),  as  follows: 
"  The  object  is  to  render  land  a  marketable  article,  not- 
withstanding the  settlement.  Its  main  purpose  is  the  wel- 
fare of  the  land  itself,  and  of  all  interested  therein,  including 
the  tenants,  and  not  merely  of  the  persons  taking  under  the 
settlement.  The  Act  of  1882  had  a  much  wider  scope  than 

*45  and  46  Viet.  c.  38. 


682  VIII.     PROPERTY   (IN  GENERAL) 

the  Settled  Estates  Acts.  The  scheme  adopted  is  to  facilitate 
the  striking  off  from  the  land  of  fetters  imposed  by  settle- 
ment;  and  this  is  accomplished  by  conferring  on  tenants 
for  life  in  possession,  and  others  considered  to  stand  in  a 
like  relation  to  the  land,  large  powers  of  dealing  with  it  by 
way  of  sale,  exchange,  lease,  and  otherwise,  and  by  jealously 
guarding  those  powers  from  attempts  to  defeat  them  or  to 
hamper  their  exercise.  At  the  same  time  the  rights  of  per- 
sons claiming  under  the  settlement  are  carefully  preserved 
in  the  case  of  a  sale,  by  shifting  the  settlement  from  the  land 
to  the  purchase  money,  which  has  to  be  paid  into  Court  or 
into  the  hands  of  trustees  "  (at  the  option  of  the  tenant  for 
life). 

The  money  so  paid  can  be  applied  in  a  variety  of  ways 
for  the  extension  of  the  property  or  the  release  of  incum- 
brances ;  or  can  be  invested  upon  certain  specified  securities, 
according  to  the  direction  of  the  tenant  for  life,  or  may  be 
applied  in  the  execution  of  permanent  improvements,  a  long 
list  of  which  is  inserted  in  the  Act.  The  Act  also  contains 
elaborate  clauses  providing  for  the  working  out  of  the  gen- 
eral idea,  and,  speaking  broadly,  may  be  said  to  give  a  ten- 
ant for  life  or  other  limited  owner,  powers  of  management 
as  large  and  varied  as  those  of  an  absolute  owner,  but  ma- 
king provision  for  safeguarding  capital  money  arising  from 
the  settled  land,  so  that  it  cannot  be  either  pocketed  or 
wasted  by  the  tenant  for  life. 

The  following  salient  points  should  be  noted:    , 

(1)  The  tenant  for  life  in  possession  —  the  head  of  the 
family  for  the  time  being  —  the  man  most  interested  in  the 
prosperity  of  the  property,  is  the  person  in  whom  the  statu- 
tory powers  of  selling,  leasing,  and  improving  are  inalienably 
vested.     The  powers  are  not  confided  to  independent  trus- 
tees, who  would  naturally  take  a  languid  and  platonic  view  of 
the  situation.     It  is  this  provision  which  is  the  life-blood  of 
the  Act. 

(2)  The  life  tenant  cannot  part  with  his  statutory  pow- 
ers, even  although  he  parts  with  his  life  estate ;   but  in  thai 
case,  if  he  exercises  the  powers,  they  are  without  prejudi< 
to  the  estate  per  autre  vie  of  his  assignee. 


71.     UNDERBILL:    Wth    CENTURY   CHANGES  683 

(3)  Except  in  the  case  of  the  mansion  house,  or  its  de- 
mesne lands,  or  of  heirlooms,  the  tenant  for  life  is  not  fet- 
tered by  the  necessity  of  obtaining  the  consent  either  of  the 
Court  or  of  the  trustees.     True,  he  has  to  give  notice  to  the 
trustees   of  his   intention  to   exercise  his   statutory  power; 
but  that  is  merely  to  enable  them  to  keep  an  eye  upon  him, 
so  that,  if  he  should  attempt  to  use  his  powers  fraudulently, 
they  may  apply  to  the  Court  to  stop  him. 

(4)  As  to  improvements,  the  Act  provides  (sec.  29)  that 
every  limited  owner  may,  without  impeachment  of  waste,  exe- 
cute any   improvement   specified  in   section   25,   or  inspect, 
repair,  or  maintain  it,  and  for  these  purposes  may  do  all 
acts  proper  for  the  execution,  maintenance,  repair,  and  use 
thereof,  and  work  freestone,  limestone,  clay,  sand,  and  other 
substances,  and  make  tramways  and  other  ways,  and  burn 
and  make  bricks,  tiles,  and  other  things,  and  cut  down  and 
use  timber  and  other  trees  not  planted  or  left  standing  for 
shelter  or  ornament. 

(5)  With  regard  to  leases,  the  tenant  for  life  is  empow- 
ered to  grant  building  leases   for  99  years,  mining  leases 
for  60  years,  and  other  leases  for  21  years,  subject  to  cer- 
tain  formalities,   and   at  the  best  procurable  rent.     More- 
over, where  it  is  shown  to  the  Court  that  it  is  the  custom  of 
the  district  to  lease  for  building  or  mining  purposes  for  a 
longer  term  or  on  other  conditions  than  those  specified,  or 
even  in  perpetuity,  and  that  it  is  difficult  to  get  a  tenant 
except  on  the  local  terms,  the  Court  may  authorise  leases 
in  conformity  with  such  custom. 

(6)  In  connection  with  sales  or  building  leases,  the  tenant 
for  life  may  cause  any  part  of  the  land  to  be  appropriated 
for  streets,  squares,  gardens,  and  open  spaces. 

(7)  In  the  case  of  mining  leases,  as  the  property  neces- 
sarily depreciates  as  the  minerals  are  abstracted,  the  Act 
provides   that   where   a   mining   lease   is    made,   whether    of 
opened  or  unopened  mines,  there  shall  be  set  aside  as  capital 
money  under  the  Act,  three-quarters  of  the  rent  if  the  ten- 
ant is  impeachable  for  waste,  and  one-quarter  if  he  is  not. 

Lastly,  any  prohibition  of  the  powers  of  the  Act  contained 
in  any  settlement  is  to  be  absolutely  void. 


684  VIII.     PROPERTY   (IN  GENERAL) 

Such  is  a  rough  sketch  of  this  great  Act,  an  Act  which 
has  been,  in  my  opinion,  a  complete  success. 

There  have  been  several  Acts  amending  the  Act  of  1882, 
but  they  have  only  dealt  with  detail,  and  in  nowise  affect 
the  broad  principles  on  which  the  main  Act  was  founded. 

In  addition  to  this  great  statute,  the  past  century  has 
seen  a  considerable  number  of  minor  changes  in  the  law  of 
settled  land.  For  instance,  take  the  case  of  contingent 
remainders,  words  of  fear  almost  as  unwelcome  to  the  ear 
of  the  student  as  the  note  of  the  cuckoo  is  said  by  Shake- 
speare to  be  to  that  of  the  husband. 

In  the  year  1801,  if  real  estate  was  settled  upon  A  for 
life,  and  after  his  death  to  such  of  his  children  as  should***1 
attain^l,  then,  if  A's  life  estate  came  to  an  end  before  any 
of  his  children  attained  21  years  of  age,  the  gift  to  the  chil- 
dren failed.  The  rule  was  that  a  contingent  remainder 
must  become  vested  at  or  before  the  determination  of  the 
preceding  estate  of  freehold,  otherwise  it  was  void.  It  was 
immaterial  how  the  preceding  estate  of  freehold  came  to 
an  end,  whether  by  forfeiture,  surrender,  merger,  or  by  the 
death  of  the  life  tenant.  To  prevent  this,  it  was  usual  to 
go  through  the  form  of  appointing  trustees  to  preserve  con- 
tingent remainders  (a  pure  technicality  —  as  pure  a  tech- 
nicality as  fines  and  recoveries).  On  the  other  hand,  where 
a  contingent  interest  in  land  was  limited  by  way  of  execu- 
tory devise,  it  did  not  fail  by  reason  of  the  preceding  estate 
coming  to  an  end  before  the  contingency  became  a  certainty. 
This  absurd  distinction,  depending  entirely  on  logical  de- 
ductions from  feudal  notions,  has  gradually  been  abolished. 
In  1845,  by  the  8th  section  of  the  Real  Property  Act  of 
that  year,1  it  was  enacted  that  henceforth  no  contingent 
remainder  should  fail  by  reason  of  the  determination  of  the 
preceding  estate  by  forfeiture,  surrender,  or  merger.  The 
author  of  this  Act,  however,  curiously  enough,  still  left  a 
contingent  remainder  liable  to  be  defeated  by  the  death  of 
the  preceding  life  tenant  before  the  contingency  had  become 
a  certainty,  and  the  law  so  continued  until  1877.  In  thai 
year,  in  consequence  of  the  very  hard  case  of  Cunliffe  v. 

1 8  and  9  Viet.  c.  106. 


71.     UNDERBILL:    19th    CENTURY    CHANGES  685 

Branclcer  l  (where  a  whole  family  of  children  were  deprived 
of  property,  because  an  unskilful  draftsman  had  not  given 
trustees  of  a  will  a  sufficient  legal  estate  to  preserve  the 
contingent  remainder),  an  Act  was  passed,  called  the  Con- 
tingent Remainders  Act.  2  By  this  Act  the  liability  of  con- 
tingent remainders  to  destruction  by  the  natural  expiration 
of  the  preceding  estate  has  been  practically  abolished  with 
regard  to  remainders  arising  under  instruments  executed 
since  the  2nd  August,  1877.  No  one,  I  think,  can  doubt 
the  wisdom  and  justice  of  this. 

Another  point  on  which  the  law  of  settled  land  has  been 
changed  in  the  direction  of  freedom  is  with  regard  to  ac- 
cumulations. In  the  beginning  of  the  year  1800  the  rule 
against  perpetuities  (afterwards  authoritatively  declared  in 
Cadett  v.  Palmer  3  )  was  doubtless  in  force,  but  it  nevertheless 
permitted  the  income  of  real  or  personal  estate  to  be  ac- 
cumulated during  the  whole  of  the  period  of  lives  in  being 
and  21  years  afterwards.  A  certain  eccentric  Mr.  Thellu- 
son,  taking  advantage  of  this,  successfully  directed  that  the 
income  of  all  his  real  estate  should  be  accumulated  during 
the  life  of  the  survivor  of  his  descendants  living  at  his  death, 
for  the  benefit  of  his  remote  descendants.  This  created  such 
an  impression  that  an  Act  was  passed  in  July  1800,  com- 
monly called  the  Thelluson  Act,4  thereby  conferring  an  im- 
mortality on  the  testator  which  he  did  not  merit.  By  this 
Act,  accumulations  are  prohibited  for  longer  than  four  al- 
ternative periods,  viz.,  the  life  of  the  settlor,  or  21  years 
from  his  death,  or  during  the  minority  of  any  person  living 
at  his  death,  or  during  the  minority  of  any  person  who,  if 
of  full  age,  would  be  entitled  to  the  income.  These  restric- 
tions have  been  tightened  by  the  Accumulations  Act,  1892, 
which  prohibits  accumulations  for  the  purpose  of  purchasing 
land  for  a  longer  period  than  the  minority  of  the  person  who, 
if  of  full  age,  would  be  entitled  to  receive  the  income  directed 
to  be  accumulated. 

So  much  with  regard  to  the  changes  in  the  law  of  settled 

'3  Ch.  D.  393. 

'40  and  41  Viet.  c.  33. 

8  Tudor' s  Leading  Cases  In  Conveyancing,  578. 

*  39  and  40  Geo.  III.  c.  98. 


686  VIII.     PROPERTY   (IN  GENERAL) 

land.  Much  still  remains  to  be  done  to  place  our  law  of 
settled  property  on  a  rational  basis.  For  instance,  learned 
members  of  the  legislature  might  well  turn  their  attention 
to  the  law  relating  to  repairs  of  settled  land,  which  is  in  a 
most  confused  and  absurd  state.  The  law,  according  to  a 
decision  of  the  late  Mr.  Justice  (afterwards  Lord  Justice) 
Kay,  in  re  Cartwright,1  is  that  a  legal  life  tenant  is  not  liable 
to  keep  in  repair  freehold  lands  or  houses.  The  same  rule 
also  apparently  applies  to  an  equitable  life  tenant.2  Nor 
has  the  Court  any  jurisdiction,  where  the  estates  are  legal 
estates,  to  order  money  to  be  raised  on  the  security  of  the 
corpus  for  making  repairs^3  although  there  appears  to  be 
such  jurisdiction  where  the  property  is  vested  in  trustees. 
Surely  this  is  a  very  irrational  and  thoroughly  impolitic 
state  of  the  law.  Either  the  life  tenant  ought  to  be  made 
to  keep  property  in  repair,  or  the  Court  ought  to  have  juris- 
diction in  every  case  to  sanction  a  charge  for  the  purpose 
on  the  inheritance.  Something  ought  to  be  done  to  clear 
away  an  impasse  which  is  a  disgrace  to  our  law. 

I  know  of  an  estate  where  the  present  life  tenant,  an  old 
man,  is  allowing  all  the  farm-houses,  cottages,  and  build- 
ings to  go  into  absolute  ruin,  roofs  have  fallen  in,  fences 
and  gates  are  broken,  and  the  whole  estate  given  over  to 
decay,  yet  the  remainderman  has  no  remedy. 

(£)   Changes  in  the  law  relating  to  the  real  estate  of  persons 
under  disability 

1  now    come    to    another    branch    of    our    subject,    viz. 
changes   in   relation  to   disability,   including  the  power   of 
dealing  with  property  on  behalf  of  persons  under  disability. 

In  the  year  1801  a  married  woman  entitled  to  land  for 
a  legal  estate  in  fee  simple  could  not  sell,  mortgage,  or 
deal  with  it  in  any  way,  either  with  or  without  the  joinder 
of  her  husband,  except  by  going  to  the  outrageous  expense 
of  suffering  a  fine  —  a  collusive  action,  which,  like  a  com- 
mon recovery,  necessitated  the  carriage  of  the  business 

J4l  Ch.  D.  532. 

2  Re  Courtier,  34  Ch.  D.  136. 

8  Re  de  Teissier,  (1893)  1  Ch.  153. 


71.     UNDERBILL:    19th    CENTURY    CHANGES  687 

through  a  multitude  of  Government  offices,  in  each  of  which, 
I  need  scarcely  say,  fees  were  extracted.  She  could  not 
make  a  will  of  her  fee  simple  lands.  She  could  not  even 
release  her  contingent  right  to  dower  on  a  sale  by  her  hus- 
band of  his  own  lands,  without  suffering  a  fine.  It  was  at 
that  date  also  considered  to  be  very  doubtful  whether  she 
could  deal  with  the  fee  simple  where  it  was  settled  to  her 
separate  use,  the  prevailing  view  being  that  the  separate 
use  was  confined  to  her  life  interest  and  could  not  affect  her 
heir. 

By  the  Fines  and  Recoveries  Abolition  Act,  1833,1  how- 
ever, her  position  was  to  some  extent  improved,  and  she  was 
enabled  to  dispose  of  her  fee  simple  lands  by  a  deed  with  the 
approbation  of  her  husband,  and  acknowledged  by  her  to  be 
her  free  act  before  Commissioners.  That,  of  course,  only 
cheapened  matters. 

In  1865  it  was  decided,  in  the  case  of  Taylor  v.  Meads,2 
that  a  married  woman  could  without  these  formalities  dis- 
pose by  deed  or  will  of  fee  simple  lands  settled  to  her  sepa- 
rate use;  but  it  was  not  until  1870  that  any  fresh  legis- 
lation came  to  the  relief  of  married  women.  In  that  year 
the  first  Married  Women's  Property  Act 3  was  passed ;  but, 
so  far  as  real  estate  is  concerned,  it  only  made  statutory 
separate  property  of  the  rents  and  profits  of  real  estates 
descending  to  a  married  woman  as  heiress.  In  1882,  how- 
ever, Parliament  passed  a  thoroughly  revolutionary  Mar- 
ried Women's  Property  Act,4  which,  like  many  statutes  of 
importance,  did  not  attract  one  quarter  the  interest  evoked 
by  a  burials  bill  or  a  verminous  persons  bill  or  other  measure 
interfering  but  little  with  the  people's  everyday  life.  The 
general  effect  of  this  bill  has  been  (so  far  as  women  mar- 
ried after  the  Act  came  into  force  are  concerned)  to  put 
them  in  the  same  position  as  men,  and  even  to  put  women 
married  before  the  Act  into  the  same  position  so  far  as  re- 
gards property  their  title  to  which  first  accrued  after  the 
Act.  Thus  married  women,  from  a  position  of  complete 

1 3  and  4  Will.  IV.  c.  74. 
9  34  L.  J.  Ch.  203. 
»33  and  34  Viet.  c.  93. 
4  45  and  46  Viet.  c.  75. 


688  VIII.     PROPERTY  (IN  GENERAL) 

proprietory  subjection  at  the  commencement  of  the  century, 
have  attained  complete  proprietory  equality  with  men  at  the 
end  of  it.  Nay,  their  position  is  even  better  than  that  of 
men;  for  if  they  are,  by  will  or  settlement,  expressly  re- 
strained from  alienation,  they  can  snap  their  fingers  at  their 
creditors;  and  while  their  husbands  are  denied  all  partici- 
pation in  their  worldly  possessions,  they  (the  husbands) 
still  remain  liable  to  third  parties  for  their  spouses'  torts. 
But  the  privileges  of  the  fair  sex  do  not  stop  here,  for  while 
they  can  use  restraint  against  alienation  as  a  shield  against 
their  unfortunate  creditors,  the  39th  section  of  the  Convey- 
ancing and  Law  of  Property  Act,  1881,  enables  a  sympa- 
thetic judge  to  relieve  them  of  it  if  it  should  prove  irksome 
and  contrary  to  their  true  interests.  As  has  been  happily 
written  by  a  legal  poet,  Mr.  Cyprian  Williams : 

"  Surely  e'en  the  host  angelic  can  afford  no  happier  station 
Than  the  wife  who  has  an  income  with  restraint  on  alienation."1 

So  far  married  women.  Let  us  now  turn  to  infants,  legal 
infants,  i.  e.  persons  under  the  age  of  twenty-one  years. 

In  1801  it  was  impossible  to  sell  an  infant's  real  estate 
(with  a  qualified  exception  in  the  case  of  gavel-kind  lands) 
however  desirable  a  sale  might  be.  Even  the  Court  had  no 
inherent  jurisdiction  to  order  a  sale,  nor  to  authorise  a  set- 
tlement by  an  infant  of  his  or  her  property  on  marriage. 
Nor  was  it  possible  to  grant  leases  binding  on  the  infant. 
It  was  impossible  to  spend  money  on  the  estate  or  to  develop 
it  in  any  way.  If  strict  settlement  was  sometimes  disastrous 
to  a  locality,  still  more  so  was  a  long  minority.  How  dif- 
ferent is  the  case  now.  By  1  William  IV.  c.  65  the  guardian 
was  empowered  by  the  direction  of  the  Court  of  Chancery 
to  make  ordinary  mining  or  building  leases  of  the  infant's 
land  for  any  term.  By  the  Infants'  Settlement  Act,  1855, 2 
a  male  infant  of  SO  and  a  female  of  17  were  enabled  to  make 
a  binding  settlement  on  marriage  with  the  sanction  of  the 
Court.  The  Partition  Acts,  1868  and  1876, 3  enabled  the 

1  Lyrics  of  Lincoln's  Inn. 

M8  and  19  Viet.  c.  43. 

8  31  and  32  Viet.  c.  40  and  39  and  40  Viet.  c.  17. 


71.     UNDERBILL:   19th    CENTURY   CHANGES  689 

Court  in  a  partition  action  where  an  infant  is  interested 
to  order  a  sale  and  to  vest  the  property  in  the  purchaser. 

The  Settled  Estates  Act,  1877, l  empowered  the  Court  to 
order  a  sale,  where  an  infant  was  interested  in  settled  land. 
This  did  not  affect  infants  entitled  in  fee  simple  in  posses- 
sion, but  by  the  41st  section  of  the  Conveyancing  and  Law 
of  Property  Act,  1881,2  it  was  extended  to  fee  simple  estates. 

By  the  42nd  section  of  the  last-mentioned  Act  provision 
is  made  for  the  exercise  by  trustees  appointed  on  behalf  of 
an  infant  of  very  wide  powers  of  management,  including 
the  carrying  out  of  repairs,  the  working  of  mines,  and  so 
on. 

Finally,  by  the  59th  and  60th  section  of  the  Settled  Land 
Act,  1882,  the  Court  is  empowered  to  appoint  persons  to 
exercise  on  behalf  of  an  infant  (whether  tenant  for  life,  in 
tail,  or  in  fee)  all  the  powers  of  sale,  partition,  exchange, 
and  leasing  given  by  that  Act  to  tenants  for  life. 

The  old  lawyers  generally  classified  infants,  lunatics,  and 
married  women  together  in  a  rising  scale  of  intelligence. 
It  remains  to  consider  the  positions  of  lunatics. 

The  Statute  de  Proerogativa  Regis,3  provided  that  the 
King  should  have  the  custody  of  the  lands  of  idiots,  subject 
to  his  supplying  the  idiot  with  necessaries,  and  returning 
his  lands  to  his  heir  at  death.  It  took,  however,  a  fine  dis- 
tinction between  idiots  and  lunatics,  providing  that  with 
regard  to  the  latter,  the  King  should  see  that  their  house- 
holds were  competently  maintained  out  of  the  rents  and 
profits,  any  surplus  being  kept  for  their  use  on  recovery, 
or,  if  they  died,  distributed  for  the  good  of  their  souls  by 
the  advice  of  the  ordinary. 

The  lunatic,  therefore,  was  in  a  better  position  than  the 
idiot,  inasmuch  as  the  King  appropriated  the  income  of  the 
one,  but  merely  held  it  as  trustee  for  the  other.  Moreover, 
the  soul  of  the  lunatic  was  provided  for,  while  the  idiot 
passed  away  "  unhousel'd,  disappointed,  unanel'd."  This 
distinction  has  for  centuries  been  abolished,  but  it  was  not 

»40  and  41  Viet.  c.  18. 
»44  and  45  Viet.  c.  41. 
»17  Ed.  II.  cc.  9  and  10. 


690  VIII.     PROPERTY   (IN  GENERAL) 

until  1853  that  powers  of  sale,  leasing,  and  so  on  were  con- 
ferred on  the  Lord  Chancellor  in  respect  of  the  estates  of 
persons  non  compos  mentis.  The  subject  is  now  governed 
by  the  Lunacy  Act,  1890,1  which  confers  on  the  Masters  in 
Lunacy  powers  to  sell,  mortgage,  improve,  and  lease  the 
lunatic's  real  estate. 


(3)   Changes  in  the  law  relating  to  the  effect  of  death  on 

real  estate 

Let  us  now  turn  to  the  changes  in  the  law  relating  to  the 
effect  of  the  death  of  an  owner  in  fee  simple.  And  first  as 
to  changes  in  the  law  of  devolution. 

In  1801,  if  a  man  died^solely^seised  of  real  estate  in  fee 
simple,  his  widow  was  entitled  to  one-third  of  it  during  her 
life,  and  of  this  he  could  not  deprive  her  either  by  will  or 
deed,  not  even  by  a  sale  or  mortgage  of  the  land.  The  only 
method  of  doing  it  was  by  levying  a  fine  with  all  its  delay 
and  cost.  This  "  rusty  curb  of  old  Father  Antic,  the  law," 
was  destroyed  by  the  Dower  Act,  1833,2  and  now  a  widow 
can  only  claim  dower  on  lands  belonging  to  her  husband  at 
his  death,  and  only  then  with  regard  to  lands  which  he  has 
not  disposed  of  by  his  will. 

In  1890,  however,  Parliament  gave  to  certain  widows,  viz., 
the  widows  of  persons  who  die  intestate  and  without  issue, 
a  further  first  charge  for  £500  payable  rateably  out  of  the 
real  and  personal  estate  of  the  deceased.  This  Act,  called 
"The  Intestates  Estates  Act,  1890," 3  was  the  result  of 
several  shocking  cases  where  a  man  having  made  no  will,  all 
his  real  estate  and  half  his  personalty  had  passed  to  remote 
eousins,  leaving  the  widow  penniless,  or  nearly  so. 

With  regard  to  heir  ship,  at  the  beginning  of  the  19th 
century  the  matter  was  governed  by  a  series  of  rules  depend- 
ing on  custom  and  digested  by  Lord  Hale.  Ascendants  in 
the  direct  line  were  never  admitted.  For  instance,  if  a  man 
died  intestate,  leaving  a  father  and  an  uncle,  the  uncle  took 
to  the  exclusion  of  the  father,  on  the  childish  ground  that 

1  53  Viet.  c.  5. 

2  3  and  4  Will.  IV.  c.  10S. 

3  53  and  54  Viet.  c.  29. 


71.     UNDERBILL:   19th    CENTURY    CHANGES  691 

the  law  presumed  that  a  man  got  his  estate  from  his  an- 
cestors, and  that  consequently  his  father  must  have  enjoyed 
it  already.  Moreover,  half  blood  was  not  recognised  as  giv- 
ing any  right  of  heirship,  and  descent  was  traced  from  the 
last  person  seised.  By  the  Inheritance  Act,  1833,1  the  mat- 
ter was  codified,  descent  was  thenceforward  traced  from  the 
last  purchaser  instead  of  the  last  person  seised,  lineal  an- 
cestry were  admitted  as  heirs  (although  the  mother  was 
placed  very  low  down  in  the  list)  and  the  half  blood  were 
admitted  on  fair  terms.  Finally  by  the  Land  Transfer  Act, 
1897,  freehold  land  now  devolves  in  the  first  instance  on  the 
personal  representative  in  the  same  manner  as  leasehold  prop- 
erty; but,  subject  to  debts  funeral  and  testamentary  ex- 
penses, he  holds  it  in  trust  for  the  heir  or  devisee. 

But  in  addition  to  succession,  the  effect  of  death  on  the 
liability  of  real  estate  to  answer  the  debts  of  the  deceased 
has  been  very  considerably  altered  during  the  past  century. 

In  1801  the  only  property  of  a  deceased  person  recognised 
as  liable  for  simple  contract  debts,  was  the  general  personal 
estate.  Unless  he  charged  his  debts  on  his  real  estate,  the 
heir  or  devisee  took  it  free  from  all  debts  except  mortgage 
debts,  crown  debts,  judgments  and  recognizances  and  debts 
arising  under  deeds  In  which  the  heir  was  expressly  men- 
tioned, and  not  even  for  such  debts  if  the  debtor  devised  the 
property  to  another. 

Even  in  the  case  of  mortgage  debts,  the  heir  or  devisee, 
with  gross  unfairness,  was  entitled  to  be  indemnified  out  of 
the  general  personal  estate  of  the  deceased. 

This  was  a  scandalous  state  of  the  law  according  to  mod- 
ern notions,  and  by  various  statutes,  especially  by  3  and  4 
Will.  IV.  c.  104,  and  32  and  33  Viet.  c.  46,  real  estate  has 
been  made  available  for  payment  of  debts  of  all  kinds,  and 
debts,  arising  under  deeds  have  not  even  priority  over  simple 
contract  ones.  Moreover,  by  the  Acts  known  as  Locke 
King's  Acts,2  where  an  heir  or  devisee  takes  real  estate  bur- 
dened with  a  mortgage  debt  or  lien,  he  is  to  take  it  cum 

1 3  and  4  Will.  IV.  c.  106. 

«17  and  18  Viet.  c.  113,  30  and  31  Viet.  c.  69,  and  40  and  41  Viet. 
c.  34. 


692  VIII.     PROPERTY   (IN  GENERAL) 

onere,  and  is  to  be  no  longer  entitled  to  saddle  the  burden 
on  the  personal  estate  of  the  deceased  — •  a  very  excellent  ex- 
tension of  the  maxim  qui  sensit  commodum  debet  sentire  et 
onus. 

It  sometimes  happened,  however,  before  these  beneficial 
changes  were  introduced,  that  an  honest  testator  charged 
his  real  estate  with  debts  by  his  will,  but  omitted  to  give 
any  directions  as  to  how  the  charge  was  to  be.  enforced. 
The  executor  could  not  enforce  it,  for  the  lands  did  not 
vest  in  him.  Even  if  the  real  estate  was  given  to  trustees 
they  could  not  sell  or  mortgage  it  to  raise  the  charge,  unless 
express  directions  were  given  to  them  to  do  so;  and  conse- 
quently a  Chancery  suit  was  in  such  cases  inevitable.  In 
1859,  however,  Parliament  passed  the  Law  of  Property 
Amendment  Act  of  that  year,  which  empowered  a  "  devisee 
in  trust "  of  real  estate  charged  with  debts,  to  raise  the 
sum  required  by  sale  or  mortgage ;  and  if  there  were  no 
devisees  in  trust,  then  a  like  power  was  given  to  the  execu- 
tors.1 However,  this  Act  only  applied  where  the  will  con- 
tained a  charge  of  debts,  and  in  other  cases  a  Chancery 
suit  was  necessary  in  order  to  get  real  estate  sold  for  pay- 
ment of  them.  But  now,  by  the  Land  Transfer  Act,  1897, 
freehold  land  always  devolves  on  the  personal  representative, 
and  he  is  given  full  power  to  sell  or  mortgage  it  for  pay- 
ment of  debts  whether  expressly  charged  or  not. 

While  on  this  subject,  I  may  mention  that  there  was  no 
death  duty  levied  on  real  estate  until  1854,  when  succession 
duty  was  imposed;  and  now  by  the  Finance  Act,  1894, 
estate  duty  is  added. 

(4)   Changes  in  the  Law  relating  to  Limitation  and  Pre- 
scription 

So  much  for  changes  in  the  law  relating  to  the  acquisition 
of  property  by  succession.  Let  us  now  turn  to  acquisition 
by  what  Continental  jurists  would  call  prescription.  I  say 
Continental  jurists,  because  English  lawyers  usually  re- 
strict the  term  prescription  to  the  acquisition,  by  long  user, 

122  and  23  Viet.  c.  35. 


71.     UNDERBILL:   19th    CENTURY   CHANGES  693 

of  easements  and  profits  a  prendre  in  alieno  solo;  whereas  on 
the  Continent,  it  includes,  with  better  logic,  the  acquisition 
of  corporeal  property  by  long  user  under  what  we  call  the 
statutes  of  limitation. 

What  was  the  state  of  the  law  as  to  acquisition  by  long; 
user  at  the  commencement  of  the  19th  century?  ,, 

With  regard  to  corporeal  hereditaments,  the  question  was 
practically  governed  by  *  the  Statute  32  Hy.  VIII.  c.  2,  by 
which  an  undisturbed  possession  as  of  right  for  at  least  60 
years,  was  required  to  bar  real  actions  and  writs  of  right. 

This  state  of  the  law  lasted  down  to  1833,  when  the  cele- 
brated Statute  of  Limitations  of  that  year  was  passed.2 
The  general  result  of  that  Act  was  as  follows : 

(1)  The  period  was  reduced  from  60  to  20  years. 

(2)  Where  a  rightful  owner  sui  juris  is  out  of  possession, 
without  acknowledgment  of  his  title  signed  by  the  party  in 
possession,  for  20  years,  the  Act  not  only  takes  away  the 
legal  remedies  for  recovery  of  possession,  but  also  abolishes 
his  right  to  the  property ;   so  that  even  if  he  should  recover 
possession  without  the  aid  of  the  Courts,  he  would  be  a  tres- 
passer. 

(3)  The  Act  made  exceptions  in  favour  of  persons  under 
disability,  and  persons  beyond  the  seas,  who  were  to  have 
ten  years  from  the  cessor  of  their  disability  or  return  to 
England  in  which  to  assert  their  rights. 

(4)  It   also   provided   that   the   statutory   period   should 
not  begin  to  run  against  persons  entitled  to  future  estates 
or  interests  until  those  estates  or  interests  became  actually 
enjoyable  in  possession. 

That  was  the  broad  general  result  of  the  Act  of  1833. 
In  1874  a  new  Limitation  Act  was  passed,3  the  effect  of 
which  was  to  substitute  12  for  20  years  and  6  for  the  extra 
10  allowed  to  persons  under  disability,  and  to  take  away 
altogether  the  exception  in  favour  of  persons  beyond  the 
seas.  Truly  a  world  which  was  vast  in  1833  when  ocean 

*No  doubt  the  Limitation  Act,  1623,  limited  the  right  to  bring  an 
action  of  ejectment  to  20  years,  but  it  did  not  prevent  real  actions  or 
writs  of  right  being  brought  within  60. 

2  3  and  4  Will.  IV.  c.  27. 

8  37  and  38  Viet.  c.  57. 


694  VIII.     PROPERTY   (IN  GENERAL) 

steam  navigation  and  telegraphs  were  unknown,  has  become 
so  contracted  by  those  great  inventions  as  to  make  absence 
beyond  the  seas  little  more  of  a  true  disability  than  absence 
in  the  Hebrides  was  in  1833.  The  rights  of  future  owners 
are  also  abridged  by  the  Act  of  1874,  so  that  now  a  rever- 
sioner  is  only  allowed  12  years  from  the  time  when  the  pre- 
vious owner  was  dispossessed,  or  six  years  from  the  time 
when  he  himself  became  entitled  in  possession,  whichever 
period  may  be  the  longest.  Moreover,  if  the  right  of  one 
reversioner  is  once  barred,  the  bar  is  now  made  to  extend 
to  all  subsequent  reversioners. 

Now,  let  us  turn  to  the  similar  but  more  complex  ques- 
tions in  relation  to  easements  and  profits  a  prendre.  By  the 
ancient  Common  Law,  an  easement  or  profit,  could  not  be 
gained  by  long  user.  Then,  probably  in  the  reign  of  the 
third  Edward,  the  Courts,  on  the  analogy  of  the  first  Limi- 
tation Act,1  laid  it  down  that  easements  and  profits  might 
be  gained  by  mere  user  traced  back  as  far  as  1189  (the  first 
year  of  the  reign  of  Richard  I.).  Then  (as  time  progressed 
and  it  became  impossible  to  trace  back  to  that  date)  it  was. 
held  that  user  during  the  memory  of  living  witnesses  was 
sufficient  to  raise  a  prima  facie  case,  rebuttable  by  proof 
that  the  user  first  arose  since  1189;  by  showing,  for  in- 
stance, that  both  the  dominant  and  servient  tenement  were 
owned  by  the  same  person  at  sometime  during  that  period. 
To  meet  this,  the  fiction  of  a  modern  lost  grant  was  invented 
by  the  Courts,  and  juries  were  directed  by  judges  to  pre- 
sume a  lost  grant  where  20  years  user  was  shown.  But 
this  fiction  still  left  it  open  to  the  owner  of  the  land  to  rebut 
the  right  claimed,  by  showing  that  it  could  not  have  arisen 
by  grant  at  all.  Thus  matters  stood  at  the  commencement 
of  the  past  century. 

This  fiction,  which  imposed  on  juries  the  finding  of  a  lost 
grant  in  which  they  probably  had  not  the  least  belief,  so 
shocked  Lord  Tenterden,  that  he  prepared  and  piloted 
through  Parliament  the  Statute  known  as  the  Prescription 
Act,  1833. 2  It  must,  I  think,  be  called  an  ill-conceived  Act, 

*3  Ed.  I.  c.  39. 

» 3  and  4  Will.  IV.  c.  71. 


71.     UNDERBILL:   19th    CENTURY   CHANGES  695 

because  it  leaves  it  uncertain,  even  at  the  present  day, 
whether  it  relates  to  all  easements,  or  only  to  those  specif- 
ically mentioned ;  and  moreover,  it  makes  time  in  some  cases 
operate  against  the  owners  of  future  estates  (as  in  the  case 
of  easements  of  light),  and  not  in  other  cases.  It  specifies 
20  years  as  the  period  in  some  cases,  and  30  in  others.  It 
did  not  touch  rights  in  gross,  nor  profits  a  prendre  except 
common  rights,  and  it  is  very  doubtful  whether  it  touched 
easements  of  support  at  all.  In  short,  this  Act  and  the 
statutes  of  limitation  might  well  be  reconsidered  in  the  light 
of  modern  decisions,  and  a  new  code,  dealing  with  both 
subjects  on  one  basis,  will,  let  us  hope,  be  one  of  the  great 
statutes  of  the  new  century.  It  is  absurd  that  while  12 
years'  possession  should  give  a  right  to  land,  at  least  20 
should  be  required  to  give  a  right  of  way  over  land,  that 
30  should  be  required  to  give  a  right  of  common,  and  that 
even  the  testimony  of  living  witnesses  should  only  confer  a 
prima  facie  right  to  a  fishery  or  any  other  profit  in  alieno 
solo. 

Since  the  Judicature  Act,  the  theory  of  a  lost  grant  has 
been  considerably  extended  in  cases  of  profits  not  falling 
within  the  Prescription  Act.  The  old  theory  that  a  lost 
grant  could  be  rebutted  by  showing  that  the  right  claimed 
was  incapable  of  being  granted  at  Common  Law,  has  been 
modified  to  this  extent,  that  if  long  enjoyment  is  shown,  the 
Court  will  endeavour  to  presume  a  lost  lawful  origin,  legal 
or  equitable,  even  although  the  right  claimed  could  not  have 
been  granted  at  Common  Law.  Thus  in  Goodman  v.  Cor- 
poration  of  Saltash,1  an  equitable  right  in  the  inhabitants 
of  Saltash  as  beneficiaries  under  a  lost  charitable  trust  to 
fish  in  the  river  Tamar  was  presumed  from  long  user,  al- 
though no  Common  Law  grant  of  such  a  right  could  be 
made  to  a  fluctuating  body  like  the  inhabitants.  The  great 
case  of  Dalton  v.  Angus,2  too,  has  decided,  but  on  what 
principle  is  doubtful,  that  even  if  the  Prescription  Act  and 
the  theory  of  lost  grant  are  inapplicable  to  rights  of  sup- 
port, yet  a  right  to  support  to  buildings  is  acquired  some- 

*7  App.  Cas.  633. 
8  6  App.  Cas.  740. 


696  VIII.     PROPERTY  (IN  GENERAL) 

how  by  twenty  years'  uninterrupted  enjoyment.  You  see, 
therefore,  that  whereas  in  the  year  1801  an  easement  or 
profit  could  only  be  gained  by  express  grant,  implied  grant, 
or  ancient  prescription  extending  beyond  the  time  of  living 
memory  (the  implied  grant  or  prescription  being  rebut- 
table),  such  rights  may  now  also  be  gained  as  to  some 
under  the  Prescription  Act,  and  as  to  others  under  the  new 
doctrine  that  a  lawful  (as  distinguished  from  a  legal)  ori- 
gin will  be  presumed  from  long  user. 

(5)   Copyholds  and  Commons 

I  must  remind  you  that  copyholds  are  lands  forming 
part  of  a  manor,  which  have,  in  theory  at  all  events,  been 
holden  from  the  lord  from  a  period  anterior  to  the  statute 
Quia  Emptores  (1290),  and  were  for  many  centuries  held 
by  the  serfs  and  villeins  of  that  lord  as  tenants  at  will. 
Gradually  the  Royal  Courts  came  to  recognise  a  custom, 
In  all  manors,  of  fixity  of  tenure,  subject  to  the  perform- 
ance of  services,  and  the  payment  of  fines,  fees,  and  heriots. 
So  that,  although  copyholds  are  still  formally  described  in 
all  documents  relating  to  them  as  held  at  the  will  of  the 
lord,  yet,  since  the  time  of  Littleton,1  Copyhold  tenure  has 
become  little  more  than  a  very  inconvenient  form  of  ordi- 
nary tenure  —  an  anachronism  and  a  nuisance,  and  prob- 
ably the  greatest  of  all  the  obstacles  to  a  simplification  of 
the  Land  Laws.  It  has  long  ceased  to  be  held  by  serfs  and 
villeins,  if  for  no  other  reason,  because  serfs  and  villeins 
themselves  have  for  centuries  ceased  to  exist.  Indeed,  it 
is  not  unusual  nowadays  to  find  that  the  copyholder  is  a 
person  of  far  more  social  importance  than  the  lord.  I  my- 
self have  known  a  case  where  the  copyholder  was  a  peer 
of  the  realm  and  the  lord  of  the  manor  was  the  local  iron- 
monger. 

In  the  year  1800  copyhold  tenure  could,  as  now,  be  ex- 
tinguished by  merger,  viz.  (1)  by  the  lord  acquiring  the 
tenant's  interest,  or  (2)  by  the  tenant  acquiring  the  lord's. 
The  latter  is  called  "  enfranchisement."  A  tenant  could 

*Temp.  Ed.  IV. 


71.     UNDERBILL:   19th    CENTURY   CHANGES  697 

only  obtain  enfranchisement  by  the  voluntary  act  of  the  lord, 
and  where  the  lord  was  himself  (as  was  most  frequent)  a 
tenant  for  life  of  the  lordship,  he  was  incapable  of  enfran- 
chising, except  under  some  express  power. 

At  the  commencement  of  the  late  Queen's  reign  an  agita- 
tion had  sprung  up  for  the  compulsory  enfranchisement  of 
copyholds,  on  the  ground  that  the  tenure  had  long  since 
lost  its  ralson  d'etre;  and,  by  a  series  of  Acts  known  as  the 
Copyhold  Acts  (beginning  in  1841  and  now  consolidated 
in  the  Copyhold  Act,  1894), 1  either  lord  or  tenant  can,  at 
the  present  day,  insist  on  the  enfranchisement  of  copyhold 
lands,  the  lord's  compensation  in  case  of  dispute  being  set- 
tled by  the  Board  of  Agriculture.  The  lord's  right  of 
escheat,  and  his  right  to  minerals  and  sporting  rights,  and 
the  tenant's  right  of  common,  are,  however,  preserved. 

And  this  brings  me  to  the  consideration  of  the  changes 
in  the  law  relating  to  Commons. 

Whatever  the  real  origin  of  common  lands  may  have  been, 
it  has  been  settled  for  centuries  that  they  are  the  freehold 
waste  lands  of  the  lord  of  a  manor,  over  which,  by  ancient 
custom,  prescription,  or  grant,  certain  persons  called  Com- 
moners, have  a  right  in  common  with  the  lord  himself  and 
others,  to  a  profit  a  prendre.  This  profit  is  of  divers  kind. 
Sometimes  it  is  a  right  to  depasture  cattle,  sometimes  to 
fish,  sometimes  to  cut  turf,  and  so  on.  At  the  beginning 
of  the  past  century  the  law  recognised  no  one  as  having 
any  rights  in  common  lands  except  the  lord  and  the  com- 
moners. If  they  were  all  of  one  mind  they  could  enclose 
the  common  and  divide  it  among  themselves.  Moreover,  by 
the  Statute  of  Merton,2  passed  in  1265,  the  lord  alone  could, 
without  anyone's  consent,  enclose  part  of  a  common,  so  long 
as  he  left  sufficient  to  satisfy  the  rights  of  the  commoners. 
Toward  the  end  of  the  18th  century  an  idea  sprung  up  that 
the  total  enclosure  of  commons  was  desirable  in  the  public 
interest,  on  the  ground  that,  thereby,  additional  land  would 
be  brought  under  cultivation ;  but,  as  the  unanimous  agree- 
ment of  lord  and  commoners  was  not  often  obtainable,  ow- 

1 57  and  58  Viet.  c.  46. 
1 20  Hen.  III.  c.  4. 


698  VIII.     PROPERTY  (IN  GENERAL) 

ing  to  some  of  the  latter  being  under  disability,  private  Acts 
of  Parliament  were  usually  necessary,  and  these  of  course 
were  costly.  For  this  reason  Parliament  passed  a  general 
Enclosure  Act  in  1845  l  to  "  facilitate  the  enclosure  and 
improvement  of  commons  and  lands  held  in  common,"  and 
for  other  purposes.  But  this  Act  and  its  nine  amending 
Acts  only  cheapened  and  facilitated  the  total  enclosure  of 
a  common,  by  providing  a  cheaper  procedure. 

By  the  year  1866  a  reaction  had  set  in.  The  growth  of 
cities  and  the  increase  of  population  had  rendered  the  com- 
mons valuable  as  recreation  grounds,  while  Free  Trade  had 
reduced  their  importance  for  agricultural  purposes.  Ac- 
cordingly in  1866  and  1869,  the  Metropolitan  Commons 
Acts  2  were  passed  to  prevent  the  enclosure  of  commons  in 
the  neighbourhood  of  London,  and  to  provide  for  their  man- 
agement and  regulation.  In  1876  another  Commons  Act 
was  passed,3  which,  among  other  things,  authorised  the  En- 
closure Commissioners  (now  merged  in  the  Board  of  Agri- 
culture) to  entertain  proposals  for  the  regulation  of  com- 
mons. By  Section  8  no  enclosure  of  suburban  commons  was 
to  be  sanctioned,  unless  the  sanitary  authorities  of  towns 
within  six  miles  were  represented  before  the  Commissioners, 
and  special  provision  was  made  for  the  benefit  of  the  inhabit- 
ants of  such  towns.  All  these  Acts  related  exclusively  to 
complete  enclosure,  and  left  untouched  the  lord's  right  under 
the  Statute  of  Merton  to  enclose  so  much  of  a  common  as 
was  not  required  for  the  exercise  by  the  commoners  of  their 
rights.  In  the  year  1888  however  that  doctrine  received 
a  rude  blow  in  the  case  of  Robertson  v.  Hartopp.*  In  that 
case  the  Court  of  Appeal  held  that  the  question  whether 
there  was  a  sufficiency  of  common  left,  must  be  determined, 
not  according  to  the  average  number  of  animals  which  the 
commoners  had  for  a  long  period  been  in  the  habit  of  turn- 
ing out,  but  according  to  the  aggregate  number  which  they 
were  theoretically  entitled  to  turn  out.  Moreover  the  Court 
queried  whether  the  modern  system  of  sheep  farming,  ac- 

1 8  and  9  Viet.  c.  118. 

2  29  and  30  Viet.  c.  122,  and  32  and  33  Viet.  c.  107. 

8  39  and  40  Viet.  c.  56. 

4  43  Ch.  D.  484. 


71.     UNDERBILL:    19th    CENTURY   CHANGES  699 

cording  to  which  sheep  do  not,  while  turned  out,  get  all 
their  sustenance  from  the  common,  ought  to  be  taken  into 
consideration.  As  one  of  the  Counsel  engaged,  wittily  ob- 
served, the  question  of  sufficiency  of  common  now  depends 
on  the  problematical  hunger  of  a  hypothetical  sheep.  This 
case  has  since  been  followed  by  the  Commons  Act,  1893,1  by 
which  the  lord's  right  to  make  a  partial  enclosure  under  the 
Statute  of  Merton  is  no  longer  to  be  exercised  without  the 
consent  of  the  Board  of  Agriculture,  which  is  to  have  regard 
to  the  same  considerations,  and  if  necessary  to  make  the 
same  enquiries  as  are  by  the  Commons  Act,  1876,  to  be  made 
on  an  application  for  the  total  enclosure  of  a  common. 
Since  this  Act  has  been  passed,  having  regard  to  the  trend 
of  public  opinion,  it  is  safe  to  say  that  very  few  enclosures 
either  total  or  partial  have  been  or  will  be  lawfully  made. 

(6)   Changes  in  the  Law  relating  to  Tithes 

Let  us  now  turn  to  changes  in  the  law  relating  to  tithes. 
Tithes  consisted  of  the  right  to  a  tenth  part  of  the  profits 
of  land.  At  the  beginning  of  the  19th  century  they  were 
payable  in  kind,  a  most  inconvenient  practice.  By  the  Tithe 
Commutation  Act,  1836,2  however,  a  rent  charge  was  sub- 
stituted, varying  with  the  price  of  corn. 

Between  1880  and  1891  an  agitation  against  payment  of 
this  rent  charge  sprung  up  among  Nonconformist  farmers, 
especially  in  Wales,  and  reached  such  serious  proportions 
(tenants  refusing  to  pay,  and  submitting  rather  to  have 
their  goods  distrained),  that  Parliament  passed  the  Tithe 
Act,  1891-.3  By  this  Act  tithe  rent  charge  was  in  future 
made  payable  by  the  owner  of  land,  and  any  contract  be- 
tween him  and  his  tenant,  under  which  the  latter  is  to  pay 
it,  is  made  void.  By  this  ingenious  method  the  grievance 
of  Nonconformist  tenants  was  "  scotched,"  without  the  par- 
sons being  deprived  of  the  fund  originally  provided  for  their 
maintenance. 

*56  and  57  Viet.  c.  57. 

2  6  and  7  Will.  IV.  c.  71,  amended  by  a  long  series  of  Acts. 

8  54  Viet.  c.  8. 


700  VIII.     PROPERTY   (IN  GENERAL) 

(7)  Landlord  and  Tenant 

The  past  century  witnessed  numerous  changes  in  the  law 

relating  to  landlord  and  tenant so  many  that  it  is  quite 

impossible  to  touch  upon  all  of  them.  The  most  important 
relate  to  distress  for  nonpayment  of  rent,  relief  against 
eviction  or  forfeiture  for  breach  of  covenants  or  conditions, 
and  compensation  for  improvements  made  by  the  tenant  of 
agricultural  land. 

The  chief  change  that  has  taken  place  in  the  law  of  dis- 
tress is  with  reference  to  lodgers'  goods.  Before  the  year 
1871  the  landlord  of  a  person  who  let  lodgings  could  en- 
force his  rent,  not  merely  by  distraining  the  goods  of  his 
own  tenant  (the  lodging-house  keeper),  but  also  the  goods 
of  that  tenant's  lodgers.  This  was,  with  reason,  considered 
to  be  very  unfair  to  lodgers ;  and,  consequently,  it  was  en- 
acted by  the  Lodgers'  Goods  Protection  Act,  1871, 1  that  in 
the  event  of  a  lodger's  goods  being  distrained  by  his  land- 
lord's landlord,  the  lodger  might,  under  certain  conditions 
and  with  certain  formalities,  require  the  superior  landlord 
to  give  them  up,  under  penalty  of  being  adjudged  guilty  of 
an  illegal  distress. 

With  regard  to  relief  against  forfeiture  (or  eviction  as  it 
is  more  popularly  called),  the  right  to  evict  for  nonpay- 
ment of  rent  or  breach  of  covenant  is  not  given  to  landlords 
by  law.  It  depends  entirely  upon  contract.  For  centuries, 
Courts  of  Equity  have  relieved  against  a  condition  for  evic- 
tion on  nonpayment  of  rent,  on  the  terms  of  the  tenant  pay- 
ing the  rent  in  arrear,  with  interest ;  and  statutory  force 
was  given  to  this  doctrine  so  long  ago  as  the  18th  century. 
But  the  jurisdiction  of  Courts  of  Equity  to  relieve  against 
forfeiture  for  breach  of  covenant  was  much  more  restricted, 
and  was  practically  confined  to  cases  where  the  breach  had 
occurred  through  fraud,  accident,  or  mistake.  The  conse- 
quence was,  that  a  man  who  had  let  property  on  a  long 
building  lease  at  a  ground  rent,  could  annex  the  whole  of 
the  lessee's  expenditure  on  the  buildings,  if  the  latter  hap- 
pened to  commit  some  comparatively  small  breach  of  cove- 

'34  and  35  Viet.  c.  79. 


71.     UNDERBILL:    19th    CENTURY   CHANGES  701 

nant  —  for  instance,  a  covenant  to  keep  the  buildings  in 
repair  or  insured.  In  such  cases  the  penalty  was  out  of  all 
proportion  to'  the  fault. 

In  the  year  1859,  Courts  of  Equity  were  empowered  by 
Lord  St.  Leonard's  Act,1  to  grant  relief  against  forfeiture 
for  breach  of  a  covenant  to  wsure,  and  that  provision  was 
subsequently  extended  to  Courts  of  Common  Law.2 

In  1876,  and  again  in  1877  and  1880,  Sir  Alfred  Marten 
(the  chairman  of  our  Board  of  Studies)  carried  Bills 
through  the  House  of  Commons  for  extending  equitable  re- 
lief to  lessees  who  might  incur  forfeiture  for  breach  of  cove- 
nant, but  for  one  reason  or  another  these  Bills  did  not  be- 
come law. 

The  entire  subject  is,  however,  now  governed  by  section  14 
of  the  Conveyancing  and  Law  of  Property  Act,  1881,3  which 
provides,  that  a  right  of  forfeiture  for  breach  of  covenant 
or  condition  in  a  lease  with  certain  specific  exceptions, 4  shall 
not  be  enforceable  by  action,  or  otherwise,  unless,  the  lessor 
serves  on  the  lessee  a  notice,  specifying  the  breach,  and  re- 
quiring the  lessee  to  remedy  it,  and  the  lessee  makes  default 
in  doing  so  for  a  reasonable  time. 

The  Court  is  given  power  to  relieve,  on  equitable  terms 
as  to  damages,  the  granting  of  an  injunction  to  restrain 
further  breaches,  and  so  on. 

Agricultural  tenancies  have  received  the  particular  atten- 
tion of  Parliament  during  the  last  quarter  of  the  century  — 
first  by  the  Agricultural  Holdings  Act,  1875,  and  subse- 
quently by  the  similar  Act  of  1883,  which  repealed  the 
former.  The  provisions  of  this  Act  (since  amended  by  the 
Agricultural  Holding  Act,  1900)  are  too  complicated  for 
me  to  give  them  in  detail.  All  I  can  do  is  to  state  shortly 
the  general  -scheme  of  the  Act  with  regard  to  improvements. 
The  general  scheme  is  to  make  landlords  liable  to  pay  to 
their  outgoing  tenants  compensation  for  unexhausted  im- 

1 22  and  23  Viet.  c.  35,  sees.  4-9. 

2  23  and  24  Viet.  c.  126,  sec.  2. 

8  44  and  45  Viet.  c.  41. 

4  Covenants  against  assigning  or  underletting,  and  covenants  in  mi- 
ning leases  and  conditions  for  forfeiture  on  bankruptcy  of  the  tenant 
But  as  to  the  last  see  Conveyancing  Act,  1892,  sec.  3. 


702  VIII.     PROPERTY   (IN  GENERAL) 

provements.  The  Act  goes  into  great  detail  as  to  the  nature 
of  these  improvements,  as  to  the  mode  in  which  the  compen- 
sation is  to  be  assessed,  and  the  mode  in  which  its  payment 
is  to  be  enforced.  But  the  persons  who  framed  the  Act  had 
to  deal  with  the  fact  that  landlords  in  England  are  nearly 
always  only  limited  owners,  that  is  to  say,  that  the  greater 
part  of  farm  land  is  in  settlement,  and  the  landlord  is  gener- 
ally only  a  tenant  for  life.  It  would,  therefore,  be  unjust 
to  make  a  landlord  pay  for  improvements  out  of  his  own 
pocket  without  giving  him  any  right  to  recover  the  amount 
paid  from  the  settled  estate  in  the  event  of  his  immediate 
death.  The  plan  adopted  in  the  Act  is  to  make  a  tenant 
for  life  pay  the  compensation  to  the  outgoing  tenant,  but 
to  give  him  a  right  to  obtain  a  charge  upon  the  settled  estate 
for  the  amount  of  the  payments  so  made  by  him. 

The  Act  of  1883  differs  from  the  previous  Act  of  1875 
in  the  important  particular  that  the  Act  of  1883  cannot 
be  negatived  by  contract,  whereas  the  Act  of  1875  might 
be,  and  in  practice  always  was. 

The  law  with  regard  to  agricultural  fixtures  has,  also, 
been  modified  by  statute.  The  first  Act  is  14  and  15  Vic. 
c.  25,  sec.  3;  but  the  subject  is  now  governed  by  section  34 
of  the  Agricultural  Holdings  Act,  1883,  which  provides 
that  all  agricultural  fixtures  put  up  by  a  tenant  after  the 
commencement  of  the  Act  may  be  removed  at,  or  within,  a 
reasonable  time  after  the  expiration  of  the  tenancy ;  but  one 
month's  notice  must  be  given  to  the  landlord  of  the  intention 
to  remove,  and  the  landlord  has  a  right  of  pre-emption. 
Honour  to  whom  honour  is  due.  This  reform  of  the  law 
is  again  due  to  Sir  Alfred  Marten,  who  drafted  and  piloted 
through  the  Commons  the  clauses  to  the  same  effect  in  the 
Agricultural  Holdings  Act,  1875. 

(8)   Fusion  of  Law  and  Equity 

I  now  come  to  what  at  one  time  seemed  to  be  the  most 
important  change  of  the  19th  century  in  the  realm  of  law, 
viz.,  the  Judicature  Act,  1873.  At  first  it  was  thought  by 
many  that  this  Act  would  so  completely  fuse  law  and  equib 


71.     UNDERBILL:    19th    CENTURY    CHANGES  703 

as  to  abolish  the  protective  efficacy  of  the  legal  estate,  and 
thereby  do  away  with  the  necessity  of  legal  conveyances. 

It  soon,  however,  became  obvious  that  all  the  Act  did  was 
to  fuse  the  Courts,  and  not  the  principles  administered  by 
them;  that  the  old  distinctions  between  the  legal  and  equi- 
table estate  were  still  preserved;  and  that,  in  fact,  persons 
who  acquired  the  legal  estate  in  property  with  all  the  for- 
malities required  by  common  law  or  statute,  were  still  to  be 
regarded  as  primd  facie  the  true  owners,  unless  and  until 
someone  else  could  show  that  he  had  a  better  claim  in  equity. 
The  purchaser  who  has  been  careful  to  embark  in  a  legal 
estate,  may  still  regard  with  a  complacent  mind  a  sea  of 
contending  equities  which  might  otherwise  engulf  him.  In 
fact,  the  main  effect  of  the  Judicature  Act,  so  far  as  the 
fusion  of  law  and  equity  is  concerned,  may  be  expressed  in 
three  lines  from  King  Lear : 

"Thou  robed  man  of  justice,  take  thy  place, 
And  thou,  his  yoke  fellow  of  Equity, 
Bench  by  his  side." 

And  perhaps  it  is  as  well  that  this  was  so.  In  1875  Par- 
liament purported  to  take  away  partially  the  protective 
efficacy  of  the  legal  estate  in  the  case  of  mortgages,  leaving 
rival  innocent  incumbrancers  to  rank  according  to  the  re- 
spective dates  of  their  securities.  The  result  was,  however, 
so  disastrous  to  the  credit  of  persons  wishing  to  borrow  on 
mortgage,  and  particularly  to  builders  and  others  accus- 
tomed to  borrow  by  instalments,  that  a  precipitate  retreat 
had  to  be  made,  and  the  old  rule  was  restored  in  the  next 


(9)    The  Practice  of  Conveyancing. 

So  far  I  have  been  dealing  with  the  changes  in  the  general 
law  of  real  estate.  I  now  propose  to  draw  your  attention 
to  changes  relating  to  instruments  by  which  the  ownership 
of  real  estate  is  transferred  from  one  person  to  another. 
Such  transfers  occur  either  mortis  causa  —  in  plain  English, 

1  See  37  and  38  Viet.  c.  78,  sec.  7,  and  38  and  39  Viet.  c.  87. 


704  VIII.     PROPERTY   (IN  GENERAL) 

by  wills  —  or  inter  mvos  —  i.  e.  by  transfers  made  by  living 
persons. 

In  the  early  part  of  the  19th  century,  a  will  of  real  estate 
had,  under  the  provisions  of  the  Statute  of  Frauds  1  to  be 
witnessed  by  three  credible  witnesses.  If  one  of  them  was 
considered  to  be  "  incredible "  ( for  instance  if  he  were  a 
convict,  or  even  if  he  took  beneficially  under  the  will,)  the 
entire  will  was  void.  Moreover,  every  general  devise  of  land 
spoke  from  the  date  of  the  will,  and  not  from  the  death  of 
the  testator;  so  that  no  freehold  land  acquired  after  the 
date  of  the  will  passed  by  it,  unless  the  will  was  confirmed 
by  a  subsequent  codicil.  A  devise  of  real  estate  without 
words  of  limitation,  only  prima  facie  passed  a  life  estate  to 
the  devisee  —  a  shocking  injustice  in  the  frequent  case  of 
an  unlearned  testator  making  his  own  will. 

Copyholds,  too,  could  not  be  devised  at  all,  except  by 
special  custom,  unless  they  were  surrendered  to  the  lord  to 
uses  to  be  declared  by  the  will,  or  unless  they  were  vested 
in  trustees;  so  that,  unless  the  formality  of  a  surrender, 
or  the  creation  of  a  previous  trust  had  been  effected,  the  will 
was  useless  so  far  as  Copyholds  were  concerned.  This  ab- 
surdity was  removed  in  1815,  by  the  Act  55  Geo.  III.  c.  192, 
which  rendered  devises  of  copyholds,  though  not  surrendered 
to  the  use  of  the  testator's  will,  as  valid  as  if  they  had  been 
so  surrendered.  It  conferred  no  new  testamentary  power, 
but  merely  supplied  a  simpler  form  of  procedure. 

However,  the  great  reform  of  the  century  in  relation  to 
the  law  of  wills,  was  made  in  1837  by  the  Wills  Act.  2  By 
this  Act  a  will  is  to  be  signed  in  the  presence  of  two  witnesses, 
instead  of  three,  and  the  credibility  of  the  witnesses  is  not  to 
affect  the  validity  of  the  will ;  but  where  a  witness,  or  his  or 
her  husband  or  wife,  is  beneficially  interested  under  the  will, 
the  will  is  good,  but  the  gift  to  the  witness  is  void.  Wills 
are  to  speak,  with  regard  to  the  real  and  personal  estate 
comprised  in  them,  from  the  death  of  the  testator,  and  not, 
as  formerly,  from  the  date  of  the  will.  A  gift  to  a  child  or 
other  issue  of  the  testator,  who  dies  before  him,  leaving 

X29  Car.  II.  c.  3. 
» 1  Viet.  c.  26. 


71.     UNDERBILL:   19th    CENTURY   CHANGES  705 

issue,  no  longer  lapses  as  formerly,  but  takes  effect  as  if  the 
donee  had  died  immediately  after  the  testator. 

The  Wills  Act  also  put  the  subject  of  revocation  of  wills 
on  a  better  footing,  providing  that,  among  other  acts,  mar- 
riage should  be  an  effectual  (although  perhaps  an  expen- 
sive) revocation.  The  act  also  made  a  general  devise  of  lands, 
to  include  not  only  lands  belonging  to  the  testator,  but  also 
lands  over  which  he  has  a  general  power  of  appointment. 

But  perhaps  the  most  important  change  introduced  by 
the  Wills  Act  was  the  provision  that,  where  real  estate  is 
devised  to  a  person  without  words  of  limitation,  it  is  to  be 
construed  as  passing  the  fee  simple,  or  other  the  whole  estate 
of  the  testator,  unless  a  contrary  intention  shall  appear, 
thereby  completely  reversing  the  former  rule. 

There  were  other  changes  introduced  by  the  Wills  Act, 
too  numerous  or  too  technical  to  mention  here,  but  those 
which  I  have  specified  were  the  most  important. 

Let  us  now  turn  to  transfers  of  real  estate  by  act  inter 
vivos.  At  the  commencement  of  the  19th  century,  convey- 
ances of  land  on  sale  were  usually  carried  out  by  the  method 
known  as  a  lease  and  release.  In  some  cases,  however,  the 
time-honoured  feofment  with  livery  of  seisin  continued  to  be 
used.  As  I  said  in  the  last  lecture,  married  women  could 
only  convey  by  means  of  the  costly  process  called  a  fine,  and 
tenants  in  tail  by  the  still  more  costly  process  of  a  Common 
Recovery,  for  both  of  which  simple  deeds  were  substituted  in 
1833. 

You  will  remember  that  the  lease  and  release  was  an  in- 
genious method  of  making  conveyances  without  livery  of 
seisin,  depending  for  its  efficacy  on  the  Statute  of  Uses.  A 
vendor  first  made  a  bargain  and  sale  of  the  property  to  the 
purchaser  for  a  year  in  consideration  of  5s.  Under  the 
Statute  of  Uses  this  immediately  vested  the  legal  possession 
in  the  purchaser.  Being  thus  in  legal  possession,  the  rever- 
sion which  still  remained  in  the  vendor,  was  capable  of  being 
released  by  another  deed,  in  which  the  true  consideration 
for  the  transaction  appeared.  This  method  required  two  in- 
struments, and  was  cumbersome  and  expensive;  and  it  is 
astonishing  that  it  took  several  centuries  before  its  absurdity 


706  VIII.     PROPERTY  (IN  GENERAL) 

struck  Parliament.  It  was  not  until  1841  that  any  attempt 
was  made  to  put  the  matter  on  a  more  rational  footing.  In 
that  year  an  Act  was  passed,  by  which  it  was  provided,  that 
a  release,  if  expressed  to  be  made  in  pursuance  of  that  Act, 
should  be  as  effectual  as  a  lease  and  release.  This  was  ab- 
surdly illogical,  as  a  release  was  essentially  an  instrument 
releasing  an  outstanding  right,  in  favour  of  one  who  already 
had  a  possessory  interest.  In  1845  the  matter  was  put  on 
a  more  satisfactory  basis  by  the  Real  Property  Act *  of  that 
year,  by  which  it  was  enacted  that  all  corporeal  heredita- 
ments should  thenceforth  "  be  deemed  to  lie  in  grant,  as  well 
as  in  livery."  In  other  words,  the  old  Common  Law  theory 
that  actual  delivery  of  possession,  or  the  newer  theory  that 
a  notional  delivery  by  the  aid  of  the  Statute  of  Uses  was 
necessary  to  a  transfer  of  freehold  land,  was  swept  into  the 
limbo  of  pedantic  rubbish,  and  a  simple  deed  of  grant  was 
made  sufficient.  This  deed  of  grant  is  still  the  common  form 
of  conveyance. 

Nevertheless,  a  deed  of  grant  in  1901  is  a  very  differently 
worded  instrument  to  what  it  was  in  1845.  True,  the  frame- 
work is  the  same.  The  parties,  recitals,  and  operative  part 
still  survive ;  but  they  are  shorn  of  that  extraordinary  splen- 
dour of  verbiage  which  distinguished  documents,  the  drafts- 
men of  which  were  paid  at  the  rate  of  so  much  per  72 
words. 

This  latter-day  brevity  is  owing  to  the  Conveyancing  and 
Law  of  Property  Act,  1881,2  not  unassisted  perhaps  by  the 
Solicitors'  Remuneration  Act  of  the  same  year,3  by  which 
the  remuneration  of  solicitors  takes  the  form  of  a  commis- 
sion on  the  purchase  money  instead  of  fees  varying  with 
the  length  of  the  documents.  By  the  first  of  these  Acts  all 
the  old  and  lengthy  covenants  for  title  entered  into  by  a 
vendor  were  swept  away,  and  implied  statutory  covenants 
were  substituted.  Such  covenants  now  depend  upon  the 
capacity  in  which  the  vendor  is  expressed  to  convey  the 
property.  If  he  purports  to  convey  as  beneficial  owner, 

1 8  and  9  Viet.  c.  106. 
2  44  and  45  Viet.  c.  41. 
8  44  and  45  Viet.  c.  44. 


71.     UNDERHILL:   19th    CENTURY   CHANGES  707 

set  of  covenants  are  implied;  if  as  trustee  or  mortgagee 
or  personal  representative,  another  set. 

Moreover,  instead  of  the  lengthy  covenant  to  produce 
deeds  and  keep  them  safe,  a  simple  acknowledgment  of  the 
right  to  production,  and  an  undertaking  for  safe  custody, 
implies  elaborate  statutory  duties  in  that  behalf.  In  fact, 
to  paraphrase  the  advertisement  of  a  modern  camera,  if  the 
practitioner  has  sufficient  intelligence  to  put  in  the  right 
catch-words  the  Act  of  Parliament  does  the  rest. 

I  now  approach  the  last  branch  of  the  subject,  viz.,  the 
new  system  of  land  transfer,  which  was  practically  initiated 
in  1897.  I  say  practically,  because,  theoretically  it  was 
first  started  in  1862.  But  it  only  became  practical  in  1897, 
because  it  was  for  the  first  time  made  compulsory  in  certain 
districts  by  the  Land  Transfer  Act  of  that  year.1 

At  present  it  is  in  an  experimental  stage,  but  although 
highly  unpopular  with  the  profession,  I  confess  that  it 
seems  to  me  to  be  likely  in  course  of  time  to  supplant  the 
present  system.  Its  object  is  to  cheapen  and  shorten  the 
investigation  which  a  purchaser  or  mortgagee  of  land  has 
now  to  make  by  destroying  the  necessity  for  a  continual 
repetition  of  investigations  of  title  on  sales  or  mortgages 
however  closely  they  may  follow  each  other. 

Under  the  present  system  a  purchaser  under  an  open  con- 
tract is  entitled  to  have  handed  to  him  an  abstract  of  every 
document  affecting  the  title  executed  within  the  past  40 
years.  This  abstract  has  to  be  compared  with  the  original 
documents,  the  effect  of  each  instrument  has  or  ought  to  be 
considered  by  a  lawyer,  and  deaths,  pedigrees,  and  intes- 
tacies proved. 

Now  if  this  were  done  once  for  all,  the  expense  on  each 
subsequent  sale  or  mortgage  would  be  a  trifle;  but  under 
the  existing  system,  this  expensive  investigation  has  to  be 
repeated  ab  initio  every  time  that  a  sale  or  a  mortgage  is 
made. 

It  is  this  repeated  investigation  that  registration  of  title 
is  intended  to  avoid.  The  registrar  keeps  the  histories  of 
all  titles  on  his  books  up  to  date,  so  that  an  intending  pur- 

*60  and  61  Viet.  c.  65. 


708  VIII.     PROPERTY  (IN  GENERAL) 

chaser  or  mortgagee  has  only  to  ask  what  the  state  of  the 
title  is,  and  the  registrar  is  able  to  tell  him  at  once  who  is 
the  owner  and  what  incumbrances  or  restrictions,  if  any, 
affect  the  property. 

I  am  informed  that  in  the  U.  S.  (at  all  events  in  New 
York)  the  same  thing  has  been  effected  in  a  different  way 
by  means  of  insurance  companies.  There,  by  payment  of 
a  small  premium,  a  landowner  can  get  his  title  investigated 
and  guaranteed  by  an  assignable  policy,  and  this  policy  is 
accepted  by  purchasers  and  mortgagees  in  lieu  of  any  in- 
vestigation of  his  title.  Some  of  us  may  think  that  this 
simple  expedient  might  have  been  tried  here;  but  whether 
owing  to  want  of  enterprise  on  the  part  of  insurance  com- 
panies, or  what,  I  know  not,  I  believe  it  has  never  been  pub- 
licly suggested. 

The  first  attempt  at  registration  of  title  in  England  was 
made  in  1862  when  the  late  Lord  Westbury  succeeded  in 
passing  an  Act  to  facilitate  the  proof  of  title  and  convey- 
ance of  real  estate. 

This  Act  was  not  compulsory.  Its  fatal  defect  was  that 
it  only  provided  for  the  registration  of  indefeasible  titles 
after  strict  examination.  The  result  was  that  Lord  West- 
bury's  Act  was  practically  a  dead  letter. 

The  next  attempt  was  made  by  the  late  Lord  Cairns  in 
the  Land  Transfer  Act,  1875,  the  broad  principle  of  which 
was  (1)  that  landowners  could  register  with  a  mere  pos- 
sessory title,  i.  e.  should  not  be  bound  to  have  their  title 
investigated  at  all,  and  (2)  that  some  person  (not  neces- 
sarily the  fee  simple  owner)  should  be  registered  as  proprie- 
tor, trusting  to  cautions  and  inhibitions  lodged  with  the 
registrar,  to  prevent  such  registered  proprietor  (who  is  in 
reality  a  trustee  for  all  persons  interested)  making  away 
with,  or  incumbering  the  property,  where  he  could  not  legiti- 
mately do  so.  This  Act  was  not  compulsory,  and,  mainly 
for  that  reason,  was  as  complete  a  failure  as  Lord  West- 
bury's  Act  of  1862,  and  remained  practically  a  dead  letter 
until  the  present  Chancellor  promoted  and  safely  piloted 
through  Parliament  the  Land  Transfer  Act  of  1897.  Thi« 
Act  is  in  form  merely  supplemental  to  the  Act  of  1875,  but 


71.     UNDERBILL:   19th    CENTURY   CHANGES  709 

it  is  in  substance  far  more  important,  because,  by  contain- 
ing provisions  for  gradually  making  the  registration  of 
titles  compulsory  throughout  England 1  on  the  occasion  of 
sale,  it  has  supplied  the  spark  of  life  to  the  inert  mass  of 
the  1875  Act.  Very  wisely  its  author  did  not  attempt  to 
frame  elaborate  details,  but  reserved  powers  to  refer  such 
details  to  a  Committee  of  experts  who  have  issued  an  elab- 
orate code  of  rules. 

Let  us  examine  the  details  of  the  new  scheme  so  far  as 
time  will  permit. 

Freehold  land  (for  the  Acts  do  not  relate  to  copyholds, 
and  there  are  separate  provisions  as  to  leaseholds)  may  be 
registered  with  either 

(a)  An  absolute  title, 

(b)  A  qualified  title,  or 

(c)  A  possessory  title. 

But  it  may  be  safely  predicted  that  although  section  17  of 
the  Act  of  1875  permits  and  encourages  the  registrar  to 
give  a  certificate  of  absolute  title  to  one  who  has  merely 
a  good  holding  title,  and  expressly  reserves  all  questions  of 
boundaries,  but  few  proprietors  will  elect  to  register  with 
anything  but  a  possessory  title.  They  did  not  do  so  before 
1897,  and  there  seems  to  be  no  new  reason  why  they  should 
go  to  the  expense  and  risk  under  the  Act  of  that  year. 

What,  then,  is  the  effect  of  registering  land  with  a  pos- 
sessory title?  The  immediate  effect  is  microscopic.  In  such 
cases,  all  that  the  registrar  can  say  is  —  "  On  such  and  such 
a  date,  A  registered  this  title  as  a  possessory  title.  What- 
ever estate,  if  any,  A  then  had,  is  now  vested  in  B  as  his 
registered  successor.  But  whether  A  was  fee  simple  owner 
when  he  placed  the  title  on  the  register,  I  cannot  say,  nor 
can  I  guarantee  that  the  title  is  free  from  flaws  before  that 
date.  You  must  therefore  investigate  the  title  of  A  up  to 
the  date  when  he  first  registered  it,  or  else  take  the  risk." 
In  other  words,  registration  with  a  possessory  title,  does  not 
in  any  way  affect  or  prejudice  the  enforcement  of  any  es- 
tate, right,  or  interest  adverse  to  the  estate  of  the  -first  reg- 
istered proprietor.  The  registrar,  on  the  other  hand,  will 

1  At  present  it  is  confined  to  the  County  of  London. 


710  VIII.     PROPERTY   (IN  GENERAL) 

be  able  to  give  a  guarantee  that  whatever  estate,  if  any,  the 
first  registered  proprietor  was  entitled  to,  is  now  vested  in 
the  vendor  as  his  successor.  And  of  course,  when  property 
has  been  on  the  register  for  40  or  50  years,  so  that  all 
probabilities  of  the  first  registered  proprietor  having  been 
a  mere  life  tenant  may  be  disregarded,  then,  practically, 
such  a  registered  title  will  have  become  as  good  as  an  abso- 
lute one,  and  certainly  as  good  as  an  ordinary  marketable 
one. 

The  net  result  is,  that  until  a  possessory  title  has  been 
registered  for  40  years  at  least,  it  will  not  be  safe  to  assume 
that  it  is  a  good  one,  or  that  a  purchaser  or  mortgagee 
who  fails  to  investigate  the  title  prior  to  the  first  registra- 
tion will  get  any  relief  or  compensation  if  he  should  be 
turned  out.  And  this  danger  is  accentuated  by  the  fact 
(regrettable,  I  think)  that,  by  rule  18,  a  person  who  regis- 
ters with  a  possessory  title,  is  not  bound  to  state  whether 
the  property  is  encumbered. 

There  are  three  registers  to  be  kept,  viz. : 

(1)  A  Property  Register, 

(2)  A  Proprietorship  Register,  and 

(3)  A  Charges  Register. 

The  property  register  contains  a  description  of  the  prop- 
erty and  refers  to  a  plan,  the  filing  of  which  is  compulsory. 
The  property  register  also  describes  all  easements  and  re- 
strictive covenants  existing  for  the  benefit  of  the  registered 
property. 

The  proprietorship  register  states  whether  the  title  is 
absolute,  qualified,  or  possessory,  specifies  the  registered 
proprietor,  and  contains  a  note  of  any  cautions,  inhibitions, 
and  restrictions  affecting  his  right  of  disposition. 

The  charges  register  shows  not  only  mortgages  and  other 
incumbrances,  if  any,  but  also  servitudes  and  restrictive 
covenants,  with  which  the  registered  land  is  burdened. 
(Rules  3,  6,  and  7.) 

There  is  no  investigation  whatever  of  title  on  an  appli- 
cation to  register  with  a  possessory  title.  Indeed  it  woul< 
Bwamp  the  scheme  if  there  were.  It  has  been  estimated  (an< 
Lord  Cairns  satisfied  himself  in  1875,  that  the  estimate  w* 


71.     UNDERHILL:    19th    CENTURY    CHANGES  711 

not  far  wide  of  the  mark)  that  upwards  of  1000  convey- 
ances or  mortgages  are  executed  on  every  working  day  of 
the  year.  If  on  the  registration  of  these  transactions  an 
official  investigation  had  to  be  made,  it  is  obvious  that  some 
thousands  of  skilled  registrars  would  be  needed. 

Having  regard  to  the  custom  of  strictly  settling  estates 
in  this  country,  and  also  to  the  frequency  of  mortgages,  it 
is  clear  that  in  any  system  of  registration  of  title,  these 
facts  must  be  taken  into  consideration.  Consequently  we 
find  that  the  Act  provides  not  merely  that  a  fee  simple  owner 
may  be  registered  as  "  proprietor,"  but  also : 

(1)  Trustees  for  sale, 

(2)  Mortgages  whose  power  of  sale  has  arisen,  and 

(3)  Tenants  for  life. 

But  in  whichever  of  these  capacities  a  man  is  registered 
he  becomes  (qua  the  outside  public)  capable  of  selling  and 
conveying  or  charging  the  fee  simple.  He  is  not  registered 
as  Trustee  Proprietor,  as  Mortgagee  Proprietor,  or  as  ten- 
ant for  life  Proprietor,  but  simply  and  solely  as  proprie- 
tor. 

You  may  ask,  in  that  case,  what  safeguard  is  there  for 
the  beneficiaries,  the  mortgagor,  or  the  remainderman,  as 
the  case  may  be.  What  is  to  prevent  this  fictitious  statu- 
tory proprietor  from  selling  the  land,  and  pocketing  the 
proceeds?  The  answer  is,  that  where  these  limited  owners 
are  the  first  registered  proprietors,  then  (as  I  have  already 
mentioned),  their  proprietorship  is  by  the  Acts,  made  ex- 
pressly subject  to  all  estates  rights  and  incumbrances 
existing  at  the  date  of  that  registration.  Their  position, 
qua  purchasers*  is  no  better  and  no  worse  than  if  he  had 
Tiever  registered. 

Where,  however,  a  trustee,  tenant  for  life,  or  mortgagee, 
is  not  the  first  registered  proprietor,  and  the  settlement  or 
mortgage  was  not  in  existence  at  the  date  of  the  first  regis- 
tration, then,  prima  facie,  the  registered  proprietor  (al- 
though only  in  fact  a  limited  owner)  can  sell,  or  convey,  or 
charge  the  property,  and  confer  a  good  title  on  his  pur- 
chaser or  mortgagee.  I  say  prima  facie,  because  the  Acts 
and  rules  provide  means  by  which  the  remainder-man  (in 


712  VIII.     PROPERTY   (IN  GENERAL) 

the  case  of  registered  tenant  for  life  proprietors),  the  bene- 
ficiaries (in  the  case  of  trustees)  and  the  mortgagor  (in  the 
case  of  mortgagees)  may  protect  themselves  against  the 
abuse  by  a  registered  proprietor  of  his  statutory  powers, 
viz. :  by  the  registration  of  cautions,  inhibitions,  or  re- 
strictions. 

A  caution  merely  entitles  the  person  giving  it  to  notice 
of  any  intended  transfer  or  charge.  It  is  the  equivalent  of 
a  stop  order  on  a  fund  in  Court.  It  would  appear  to  be  the 
appropriate  safeguard  of  cestuis  que  trusts  and  equitable 
mortgagees. 

An  inhibition,  while  it  remains  in  force,  is  a  complete  bar 
to  any  registered  transfer  or  charge.  It  can  only  be  placed 
on  the  register  with  the  consent  of  the  registered  proprietor 
or  the  order  of  the  registrar  or  the  Court. 

A  restriction  is  a  notification  placed  on  the  register  with 
the  assent  of  the  registered  proprietor,  restraining  regis- 
tered transfers  or  charges  without  certain  consents,  or  unless 
purchase  money  is  paid  to  certain  persons.  It  is  appre- 
hended that  restrictions  and  inhibitions  will  be  the  appro- 
priate safeguard  where  trustees  for  sale,  or  tenants  for  life* 
are  the  registered  proprietors.  Take  for  example  the  case 
of  a  tenant  for  life;  form  6  appended  to  the  rules  gives  the 
formal  restriction  and  inhibition  in  the  following  words: 

"  Restriction.  —  Until  further  order,  no  transfer  of  the 
land  is  to  be  made  except  on  sale  or  exchange,  and  the  pur- 
chase moneys  on  sale  are  to  be  paid  to  A.  B.  and  C.  D.,  or 
into  Court.  No  sale  of  the  mansion  house  and  land  shown 
and  edged  red  on  the  plan  attached  hereto  is  to  be  made 
without  the  consent  of  the  said  A.  B.  and  C.  D.,  or  of  the 
Court,  and  no  charge  is  to  be  created  without  the  consent 
of  A.  B.  and  C.  D. 

Inhibition.  —  On  the  death  of  E.  F.  (the  reg.  pro.)  no 
entry  is  to  be  made  until  further  order." 

In  this  form  you  see  that  the  power  of  sale  and  exchange 
given  to  tenants  for  life  by  the  Settled  Land  Acts  is  pre- 
served, subject  to  the  conditions  annexed  by  these  Acts  to 
the  exercise  of  the  power,  viz.,  that  the  purchase  money 
to  be  paid  into  Court  or  to  two  trustees.  But,  as  these  Acts 


71.     UNDERBILL:   19th    CENTURY   CHANGES  713 

give  no  powers  to  mortgage  except  for  very  restricted  pur- 
poses, the  restriction  prevents  the  tenant  for  life  charging 
the  property,  as  he  would  (as  registered  proprietor)  be 
otherwise  capable  of  doing.  Then,  again,  as  the  Settled 
Land  Acts  prohibit  the  sale  of  the  principal  mansion  house 
without  the  consent  of  trustees  or  Court,  the  registered  re- 
striction provides  for  that.  And,  lastly,  the  inhibition  pre- 
vents any  attempt  by  the  personal  representatives  of  the 
tenant  for  life  getting  themselves  placed  on  the  register. 

Subject  to  the  safeguards  afforded  by  cautions,  inhibi- 
tions, and  restrictions,  however,  and  to  estates,  incum- 
brances,  and  interests,  existing  at  the  date  of  the  first  regis- 
tration of  a  possessory  title,  a  registered  proprietor  has  full 
power  to  confer  on  a  purchaser  or  chargee,  a  good  title  free 
from  the  claims  of  persons  whose  interests  have  arisen  since 
the  date  of  the  first  registration;  even  (according  to  sec- 
tion 83  of  the  1875  Act  as  amended  by  the  Act  of  1897), 
although  such  purchaser  or  mortgagee  has  notice  of  such 
interests.  That  provision  at  first  sight  seems  monstrous, 
but  its  bark  is  worse  than  its  bite,  because,  as  I  shall  pres- 
ently show  you,  any  person  who  is  injured,  and  who  has  not 
by  carelessness  contributed  to  his  injury,  will  get  compen- 
sation from  the  State. 

Curiously  enough,  although  a  registered  proprietor  can 
thus  deal  with  the  land  itself,  so  as  to  defeat  the  rights  of 
persons  who  have  not  entered  cautions  or  restrictions  or 
obtained  inhibitions,  the  Acts  do  not  enable  him  to  create 
easements  or  profits  with  a  similarly  clear  title ;  so  that  he 
who  purchases  a  right  of  way  over  land,  would,  it  would 
seem,  have  to  investigate  the  title  of  his  vendor  to  create  the 
right — surely  a  strange  anomaly.  Still  stranger  is  the 
fact  (at  least  it  seems  to  me  to  be  the  fact)  that  although 
the  Acts  give  a  registered  proprietor  (against  whom  there 
are  no  cautions,  inhibitions,  or  restrictions)  full  power  to 
alienate  the  fee  simple,  they  give  him  (at  all  events  not  in 
express  terms)  no  corresponding  power  to  create  unimpeach- 
able leases.  A  lessee,  therefore,  who  is  taking  a  long  term 
with  the  view  of  spending  money  on  property  (e.  g.  under 
a  building  or  mining  lease)  will  apparently  still  have  to 


714  VIII.     PROPERTY   (IN  GENERAL) 

investigate  the  title  of  the  registered  proprietor  to  grant 
the  lease. 

A  similar  remark  applies  to  all  persons  whose  rights  are 
not  in  possession.  The  registered  proprietor  must  always 
be  the  man  entitled  to  possession.  The  Act  makes  no  pro- 
vision for  registering  titles  in  reversion  or  remainder,  or 
the  equitable  rights  of  beneficiaries.  If,  therefore,  a  rever- 
sioner,  or  remainder-man,  or  beneficiary,  wishes  to  sell  or 
mortgage  his  interest  in  registered  land,  the  register  will 
be  useless  to  him,  and  his  title  will  still  have  to  be  investigated 
in  the  old  way. 

I  now  turn  to  a  different  branch  of  the  subject.  What  is 
to  happen  where,  owing  to  fraud  or  mistake,  the  register 
does  not  represent  the  true  state  of  the  title,  so  that  some- 
one has  blundered  and  someone  is  injured?  The  answer  is, 
that  the  injured  party  will  receive  compensation  from  the 
State.  It  was  one  of  the  many  weaknesses  of  the  Act  of 
1875  that  by  making  the  register  infallible  in  favour  of  pur- 
chasers or  mortgagees  who  acted  on  the  faith  of  it,  it 
threatened  the  security  of  landowners  whose  estates  were 
acquired  after  the  first  registration  (even  of  those  in  pos- 
session) without  giving  them  any  compensation.  A  bona 
-fide  purchaser  for  value  who  got  on  the  register,  was  ap- 
parently secure,  even  although  he  claimed  under  a  forged 
transfer;  and  the  unfortunate  true  owner,  even  when  in 
possession,  was  liable  to  be  ousted  without  a  penny  of  com- 
pensation. This  was  one  of  the  many  reasons  why  lawyers 
dissuaded  clients  from  registering  their  titles  under  the  Act 
of  1875.  The  Act  of  1897  has  recognised  the  injustice 
of  this,  and  absolutely  safeguards  the  true  owner  who  is  in 
possession.  Any  fraudulent  or  erroneous  entry  in  the  regis- 
ter to  which  he  is  no  party  is  not  to  affect  him.  On  the  other 
hand,  any  other  person  who  is  injured  by  it,  will  be  com- 
pensated in  money  by  the  State,  and  the  register  will  be 
rectified. 

Possession  is  still  therefore  a  strong  fortress  of  the  law, 
but  it  is  not  so  strong  as  it  has  heretofore  been ;  because  the 
register,  and  not  possession,  is  prima  facie  evidence  of  title. 
Bo  that  where  the  register  has  been  fraudulently  or  errone- 


71.     UNDERBILL:   19th    CENTURY   CHANGES  715 

ously  tampered  with,  the  onus  of  proof  will  be  shifted  to  the 
man  in  possession. 

However,  even  a  true  owner  who  is  ousted,  will  not  get 
compensation  where  "  he  has  caused  or  substantially  con- 
tributed to  the  loss  by  his  act,  neglect,  or  default  " ;  and 
the  omission  to  register  a  sufficient  caution  or  inhibition  or 
other  restriction,  to  protect  a  mortgage  by  deposit  or  other 
equitable  interest,  is  to  be  "  deemed  to  be  a  neglect "  1  — 
a  plain  hint  to  beneficiaries  to  look  sharply  after  their  trus- 
tees. 

In  order  to  make  the  register,  and  the  register  only,  the 
true  test  of  title,  sec.  12  of  the  Act  of  1897  contains  a  very 
strong  and  debatable  enactment  in  these  words : 

"  A  title  to  registered  land  adverse  to  or  in  derogation 
of  the  title  of  the  registered  proprietor  shall  not  be  acquired 
by  any  length  of  possession,  and  the  registered  proprietor 
may  at  any  time  make  an  entry  or  bring  an  action  to  recover 
possession  of  the  land  accordingly."  In  other  words,  the 
Statutes  of  Limitation  are  not  to  apply  to  registered  land. 
It  is  true  that  the  section  goes  on  to  provide  that  where  a 
person  not  on  the  register,  has  been  in  possession  for  a  period 
sufficient  to  give  him  a  title  under  the  Statute  of  Limita- 
tions, he  may  apply  to  the  Court  to  rectify  the  register  in 
his  favour.  But  the  necessity  of  commencing  active  litiga- 
tion is  very  different  to  the  acquisition  of  a  title  by  passive 
possession;  and  moreover,  the  Court  is  only  to  rectify  the 
register  subject  to  any  rights  acquired  for  valuable  con- 
sideration on  the  faith  of  the  register.  Here,  then,  is  an- 
other assault  on  the  fortress  of  possession.  Registration 
and  not  possession  will  be  the  nine  points  of  the  law  in  future. 
Mr.  Cherry,  in  his  excellent  book  on  the  Acts,  points  out 
that  the  draftsman  seems  to  have  confused  registration  of 
title  and  possession.  "  All  that  a  register  can  properly  do 
is  to  show  the  state  of  the  paper  title,  and  a  purchaser  or 
a  mortgagee  ought  to  satisfy  himself  by  enquiries  on  the 
spot  as  to  whether  he  will  get  possession  under  that  paper 
title.  The  point  is  not  merely  academic.  Take  the  case 
where  A  purchases  land  from  B,  but  owing  to  some  mistake 

1  Act  of  1897,  sec.  7  sub-sec.  3. 


716  VIII.     PROPERTY  (IN  GENERAL) 

or  carelessness  of  his  solicitor  plot  X  is  not  described  in  the 
registered  map.  A  goes  into  possession,  and  retains  pos- 
session of  plot  X,  say,  for  twenty  years,  and  perhaps  builds 
on  it.  Plot  X  all  this  time  remains  on  the  register  in  B's 
name,  and  on  his  (B's)  death  his  executors  sell  and  convey 
to  C,  who  gets  himself  registered.  Here  it  seems  plain  that 
A,  the  real  owner,  will  lose  plot  X,  and  get  no  compensation, 
although  if  C  had  taken  the  simple  precaution  of  asking  on 
the  premises,  he  would  have  learnt  of  the  mistake." 

So  far  as  to  registration.  Now  a  few  words  as  to  transfer 
of  registered  land.  A  transfer,  then,  is  to  be  made  under 
rule  77  by  an  instrument  in  a  prescribed  form. 

Here  is  the  form: 

"  Land  Transfer  Acts,  1875  and  1897. 
District     .... 

Parish 

No.  of  title 

25th  March,  1900.  In  consideration  of  £  ,  I,  A  Bs 

of,  etc.,  hereby  transfer  to  C  D,  of,  etc.,  the  land  comprised 
in  the  title  above  referred  to. 

Signed,  sealed,  and  delivered,  etc." 

The  transfer  being  made,  the  registrar  keeps  it,  and  hands 
to  the  transferee  a  scrap  of  paper  called  a  "  land  certifi- 
cate," which  henceforth  is  his  sole  evidence  of  title.  The 
bulky  and  imposing  sheepskin  so  familiar  to  us  all,  on  which, 
in  the  pompous  metaphor  of  legal  writers,  a  landowner  is 
entitled  to  sit,  will  gradually  give  place  to  this  single  attenu- 
ated document;  so  that,  apparently,  in  the  fulness  of  time, 
the  English  landowner  will  become  a  kind  of  territorial 
cherub. 

With  regard  to  transmission  of  registered  land  on  the 
death  of  a  registered  proprietor,  the  appointment  of  a  real 
representative  by  the  Act  of  1897  has  greatly  facilitated 
matters,  because  it  has  created  a  person  with  whom  the  reg- 
istrar can  deal. 

Where,  however,  the  land  is  settled,  the  question  is  not  ! 


71.     UNDERBILL:   19th    CENTURY   CHANGES  717 

simple,  and  this,  I  fancy,  is  where  the  officials  will  find  the 
shoe  pinches.  For  instance,  where  the  deceased  is  only  ten- 
ant for  life,  the  property  does  not  vest  on  his  death  on  his 
real  representative,  and  the  registrar  has  to  look  to  someone 
else  to  deal  with.  Where  possible,  the  trustees  of  the  settle- 
ment (if  any)  are  to  undertake  this  duty. 

There  are,  however,  many  cases  where  either  there  are  no 
trustees  of  a  settlement  or  they  are  supine.  In  such  cases 
any  person  interested  may  apply  for  the  registration  of  a 
new  proprietor.  In  that  case  (and  here  the  difficulty  arises) 
the  registrar  must  enquire  into  the  terms  of  the  settlement, 
settle  draft  restrictions  and  inhibitions,  give  notice  to  the 
trustees  (if  any),  to  the  succeeding  tenant  for  life,  and  such 
other  persons  as  he  may  think  fit,  and,  if  no  valid  objection 
is  made,  enter  the  successor  as  proprietor. 

So  much  for  the  registration  of  freehold  titles. 

The  Acts  and  rules  also  make  provision  for  the  registra- 
tion of  leasehold  titles  much  on  the  same  lines.  All  I  need 
say  on  this  subject  is,  that  in  areas  where  registration  is 
compulsory  all  new  leases,  (and  also  transfers  on  sale  of  all 
existing  leases)  having  at  least  40  years  to  run,  must  be 
registered. 

We  now  come  to  the  very  important  subject  of  mortgages 
of  registered  land,  and,  curiously  enough,  the  Acts  and  rules 
make  no  provisions  whatever  for  legal  mortgages  in  the 
ordinary  sense.  If  a  regular  legal  mortgage  is  required 
the  only  way  of  creating  it  is  to  imitate  the  present  mode  of 
making  a  mortgage  of  stocks  or  shares,  viz.,  to  substitute 
the  mortgagee  as  the  registered  proprietor,  and  then  to 
regulate  the  equitable  rights  of  the  parties  by  a  collateral 
deed,  which  is  not  entered  or  noticed  on  the  register  at  all. 

What  the  Act  of  1875  does  do,  however,  is  to  create  a 
new  kind  of  statutory  mortgage,  called  a  registered  charge. 
This  charge  is  really  an  equitable  charge.  It  does  not  pass 
the  legal  estate  to  the  chargee,  but  merely  gives  him  a  lien 
with  certain  implied  covenants  for  payment  of  principal  and 
interest,  and  statutory  powers  of  sale,  foreclosure,  etc. 
(Sees.  22-28). 

Now,  if  the  land  be  registered  with  an  absolute  or  quali- 


718  VIII.     PROPERTY  (IN  GENERAL) 

fied  title,  these  registered  charges  may  be  well  enough, 
because  they  are  to  rank  inter  se  in  order  of  registration. 
But  where  land  is  registered  (as  most  land  will  be)  with  a 
possessory  title,  then,  as  all  registered  dealings  are  to  be 
subject  to  unregistered  dealings  entered  into  prior  to  the 
date  of  the  first  registration,  a  registered  charge  will  be 
nothing  more  or  less  than  an  equitable  mortgage,  which,  as 
we  all  know,  is  subject  to  all  prior  equitable  mortgages  and 
claims,  whether  known  or  unknown.  That  is  not  a  very  en- 
ticing prospect,  and,  therefore,  I  imagine  that  for  many 
years  to  come  registered  charges  will  be  neglected  in  favour 
of  true  legal  mortgages,  in  which  the  mortgagee  will  insist 
upon  being  placed  on  the  register  as  proprietor  of  the  land, 
so  as  to  get  the  protection  of  the  legal  estate,  the  mortgage 
itself  being  regulated  by  a  collateral  deed.  But  in  addition 
to  regular  mortgages,  we  all  know  that  there  is,  under  the 
present  system,  an  important  class  of  equitable  mortgages, 
known  as  mortgages  by  deposit  of  deeds.  -To  the  commercial 
community  this  is,  perhaps,  the  most  important,  because  it 
is  the  way  in  which  a  commercial  man  can  instantly,  without 
any  delay  whatever,  raise  money  from  his  bankers.  He  de- 
posits his  pile  of  sheepskins,  and  the  money  is  at  once  car- 
ried to  his  credit.  How  is  this  to  be  effected  under  the  new 
system?  The  answer  is,  by  deposit  of  his  land  certificate 
(sec.  8  sub-sec.  4  Act  of  1897).  In  one  way  this  new  form 
of  mortgage  will  be  a  better  security  than  the  old  one. 
Under  the  present  system  a  mortgagee  under  a  deposit  of 
deeds  takes  subject  to  all  prior  equities,  whether  he  has 
notice  of  them  or  not.  Under  sec.  8  sub-sec.  4  of  the  Act  of 
1897  a  mortgagee,  by  deposit  of  a  land  certificate,  would 
seem  to  oust  all  equities  prior  to  the  date  of  the  certificate 
which  are  not  entered  on  it,  and  this  would  seem  to  enable 
a  fraudulent  trustee  whose  cestuis  que  trusts  have  not  en- 
tered cautions,  to  give  a  valid  charge  on  the  trust  estate. 
On  the  other  hand,  a  mortgagee  by  deposit  of  the  land  cer- 
tificate, does  not  gain  priority  over  charges  entered  since  the 
date  of  the  certificate,  and  is  bound  to  make  enquiries  as 
to  subsequent  charges,  from  the  registrar,  which  he  can  do, 
however,  by  telegram.  He  must  also  —  and  this  is  of  the 


71.     UNDERBILL:    19th    CENTURY   CHANGES  719 

utmost  importance  —  give  a  notice  to  the  registrar  by  reg- 
istered letter  or  otherwise  of  his  mortgage.  Curiously 
enough,  the  common  case  of  a  mortgage  by  deposit  with  a 
bank,  to  secure  an  overdraft,  is  not  specifically  dealt  with; 
and  it  may  be  plausibly  argued  that  in  such  cases  the  banker 
would  have  on  each  occasion  of  cashing  a  cheque,  to  search 
the  register  for  subsequent  incumbrances.  I  think,  however, 
that  this  cannot  be  so,  as  the  effect  would  be  to  make  such 
charges  absolutely  useless,  and  to  dislocate  commerce  in  the 
most  disastrous  manner.  The  true  view  seems  to  me  to  be, 
that  a  mortgagee  by  deposit  to  secure  a  current  account, 
having  notified  his  charge  to  the  registrar,  may  safely  con- 
tinue to  make  advances  until  he  receives  actual  notice  to 
stop  from  a  subsequent  incumbrancer. 

Such  is  a  brief  review  of  the  new  conveyancing,  which, 
like  the  new  woman,  is  still  somewhat  of  an  experiment. 
Some  nervous  practitioners  fancy  that  it  is  the  Banshee 
whose  appearance  portends  the  death  of  that  quiet  and  re- 
spectable figure,  the  conveyancing  counsel.  I  myself  have 
no  such  fears.  So  long  as  the  English  land  laws  retain  their 
present  complexity  experts  will  be  required  to  advise  upon 
them;  and  so  long  as  wills,  settlements,  and  leases,  not  to 
mention  partnership  deeds  and  contracts,  have  to  be  drawn, 
the  wise  saying  of  King  Solomon  will  hold  good  that  "  with- 
out counsel  purposes  are  disappointed." 


PART    IX. 
WILLS,    DESCENT,    MARRIAGE 

72.  The  Mediaeval  Law  of  Intestacy. 

CHARLES  GROSS 

73.  Executors  in  Earlier  English  Law. 

OLIVER  WENDELL  HOLMES,  JR. 

74.  The  Executor  in  England  and  on  the  Continent. 

ROBERT  CAILLEMEE 

I   75.     The  Rise  of  the  English  Will. 

MELVILLE  MADISON  BIGELOW 

76.     Marriage  and  Divorce  under  Roman  and  English  Law. 

JAMES  BRYCE 


[OTHER  REFERENCES  ON  THE  SUBJECTS  OF  THIS  PART  ARE  AS  FOLLOWS: 

The  Testamentary  Executor  in  England  and  Elsewhere,  by  R.  J.  R. 
Coffin  (Yorke  Prize  Essay,  1899),  London,  1891. 

Outline  of  the  Development  of  Probate  Law  and  Probate  Jurisdic- 
tion in  New  Hampshire,  1623-1775  (New  Hampshire  State  Papers,  1907, 
vol.  XXXI,  Wills  and  Probates). 

Two  Essays  on  Primogeniture,  by  C.  S.  Kenny  and  P.  M.  Lawrence, 
London,  1878. 

The  Origin  of  Cy  Pres,  by  Joseph  Willard  (Harvard  Law  Review, 
VIII,  69),  1894. 

Changes  in  the  Law  of  Wills  and  Descent  in  the  United  States,  by 
L.  M.  Daggett  (c.  VIII,  in  Two  Centuries'  Growth  of  American  Law, 
Yale  Bi-Centenary  Studies),  1901.] 


72.     THE  MEDIAEVAL  LAW  OF  INTESTACY1 
BY  CHARLES  GROSS  2 

DURING  the  middle  ages  the  last  will  was  usually  the 
epilogue  of  the  last  confession. 3  The  intestate  was 
regarded  with  horror  as  an  infamous  person  who  had  died 
unconfessed.  For  if  he  had  made  confession  on  his  death- 
bed, the  priest  before  granting  absolution  would  have  per- 
suaded the  dying  man  to  make  a  will  by  which  he  would  be- 
stow a  part  of  his  movables  on  the  church  and  the  poor  for 
the  repose  of  his  soul.  4  The  intestate,  therefore,  must  have 
died  without  providing  for  his  salvation ;  he  could  not  be 
buried  in  consecrated  soil,  and  in  some  parts  of  Europe  his 
personal  property  was  forfeited  to  his  feudal  lords.5  In 

1This  Essay  was  first  published  in  the  Harvard  Law  Review,  1904, 
XVIII,  pp.  120-131. 

2  Professor  of  History  in  Harvard  University.  Williams  College, 
A.  B.  18T8,  LL.D.  1904;  Gottingen  University,  Ph.D.,  1883. 

Other  Publications:  The  Gild  Merchant,  1890;  Select  Cases  from  the 
Coroners'  Rolls  (Selden  Society),  1896;  The  Sources  and  Literature 
of  English  History,  1900;  Select  Cases  on  the  Law  Merchant  (Selden 
Society,  1908);  Modes  of  Trial  in  Mediaeval  Boroughs  (Harvard  Law 
Review,  XV,  691)  1902;  The  Court  of  Piepowder  (Quarterly  Journal 
of  Economics,  XX,  231),  1906;  Mortmain  in  Mediaeval  Boroughs 
(American  Historical  Review),  1907. 

8Auffroy,  Evolution  du  Testament  en  France,  555;  cf.  ibid.,  376-84. 
"Very  often  a  man  makes  no  will  until  he  feels  that  death  is  near": 
Pollock  and  Maitland,  English  Law,  2nd  ed.,  ii.  340. 

4  The  prelates  order  that  when  a  man  makes  a  will  he  should  dispose 
of  part  of  his  property  for  the  good  of  his  soul;  also  that  a  priest 
should  be  present  when  a  will  is  made:  Wilkins,  Concilia,  i.  583,  638,  ii. 
155,  156. 

8Du  Cange,  Glossarium,  s.  v.  intestatio;  fitablissements  de  Saint 
Louis,  ed.  Viollet,  iv.  42-49;  Caillemer,  Confiscation  et  Administration 
des  Successions  par  les  Pouvoirs  Publics,  43-54;  Pollock  and  Maitland, 
bk.  ii.  ch.  vi.  §4.  Caillemer  believes  that  in  some  parts  of  France  the 
confiscation  of  the  intestate's  goods  by  the  lord  was  not  a  punishment 
for  a  religious  offense,  but  a  stage  in  the  development  by  which  serfs 
obtained  the  right  to  dispose  of  their  property. 


724         IX.     WILLS,  DESCENT,  MARRIAGE 

England  during  the  first  half  of  the  thirteenth  century  the 
prelates  secured  the  right  to  distribute  such  property,  but 
a  statute  of  1357  required  the  ordinary  to  commit  the  work 
of  administration  "  to  the  next  and  most  lawful  friends  of 
the  dead,"  who  were  to  make  provision  for  the  welfare  of  his 
soul  and  were  accountable  to  the  ordinary.  The  rule  was 
after  payment  of  debts  to  give  a  third  of  his  movables  to  the 
wife  and  a  third  to  the  children  (the  bairns'  part),  while  the 
other  third  (the  dead's  part)  was  expended  for  pious  works ; 
if  he  left  a  wife  but  no  children,  or  children  but  no  wife, 
the  dead's  part  was  a  half. 1 

It  has  recently  been  asserted  that  intestacy  was  rare  in 
England  because  it  was  easy  to  make  a  will  and  because  the 
chroniclers  treat  intestacy  as  a  scandal. 2  While  the  paucity 
of  references  to  intestates  in  the  records  tends  to  confirm 
this  view,  most  of  the  cases  referred  to  by  the  chroniclers 
seem  to  relate  to  men  who  had  fair  warning  that  death  was 
approaching,  not  to  those  who  died  suddenly ;  and  the  coro- 
ners' rolls  show  that  such  sudden  deaths  were  very  common. 
Therefore,  since  a  man  usually  made  his  will  on  his  death- 
bed,3 intestacy  could  not  have  been  rare;  and  the  records 
which  we  shall  soon  examine  show  clearly  that  intestates 
who  died  suddenly  were  regarded  with  less  horror  than  those 
who  died  under  normal  conditions. 

Much  obscurity  overhangs  the  English  law  of  intestacy 
before  the  thirteenth  century.  Blackstone,  adopting  the 
opinion  of  Coke,  4  says  that  "  by  the  old  law  the  king  was 
entitled  to  seize  upon  his  [the  intestate's]  goods,  as  the 
parens  patrlae  and  general  trustee  of  the  kingdom."  On 
the  other  hand,  Selden  and  Pollock  and  Maitland  deny  that 
this  was  ever  a  prerogative  of  the  crown.  Though  Coke's 

1  On  the  history  of  the  English  law  of  intestacy,  see  Selden,  The  Dis- 
position of  Intestates'  Goods   (Collected  Works,  iii.  1677);  Moore,  Re- 
ports of  Cases  heard  by  the  Judicial  Committee  of  the  Privy  Council, 
v.  434-98;  Makower,  Const.   Hist,  of  the  Church  of  England,  428-31; 
Pollock  and  Maitland,  bk.  ii.  ch.  vi.  §4  (the  best  account  of  the  sub- 
ject); on  the  history  of  legitim,  ibid.,  bk.  ii.  ch.  vi.  §  3. 

2  Pollock  and  Maitland,  ii.  360,  rejecting  Selden's  opinion  that  in- 
testacy was  common. 

» Ibid.,  ii.  340. 

4  Reports,  ix.  38  b. 

*  Commentaries,  bk.  ii.  ch.  32. 


7%.     GROSS:  MEDIAEVAL  INTESTACY       725 

contention  appears  to  be  untenable,  it  would  not  have  been 
strange  if  the  strong  English  monarchy,  adopting  the  prin- 
ciple of  the  Norman  law,  had  insisted  that  the  movables  of 
intestates  should  be  dealt  with  in  the  same  way  as  those  of 
deceased  usurers.  The  Grand  Coutumier  of  Normandy  says; 
that  all  the  chattels  of  those  who,  after  an  illness  of  nine 
days  or  more,  die  unconfessed,  belong  to  the  duke,  though 
some  lords  possess  this  right  by  charter  or  prescription;1 
and,  according  to  an  inquest  made  by  order  of  Philip 
Augustus  in  1205  regarding  the  laws  which  Henry  II.  and 
Richard  I.  had  observed  in  Normandy,  all  the  movables  of 
an  intestate  who  lay  ill  in  bed  three  or  four  days  before  his 
death  were  forfeited  to  the  king  or  to  the  lord.2  In  1190 
the  clergy  of  Normandy  claimed,  however,  that  if  any  one 
dies  suddenly  without  leaving  a  will  his  personal  estate 
should  be  distributed  by  the  church. 3  This  was  evidently 
a  mooted  question  in  Normandy  regarding  which  there  were 
disputes  between  the  lay  and  ecclesiastical  authorities. 

Certain  passages  may  be  found  in  the  records  which  at 
first  view  seem  to  lend  some  support  to  the  theory  of  Coke 
and  Blackstone,  but  when  carefully  scrutinized  they  fail  to 
carry  conviction.  For  example,  in  1255  Henry  III.  grants 
to  the  burgesses  of  St.  Omer  that  if  any  of  them  shall  die 
in  the  king's  dominions  testate  or  intestate,  he  will  not  con- 
fiscate their  goods,  but  will  allow  their  heirs  to  have  them ; 4 
probably  Henry  III.  is  here  merely  safeguarding  the  men 
of  St.  Omer  against  reprisals.  5  In  1268  the  citizens  of  Dub- 
lin contended  that  the  movable  property  of  intestates  be- 
longed to  the  crown,  but  for  this  and  other  misdemeanors 
they  were  excommunicated.6  Moreover,  various  passages  in 

^outumiers  de  Normandie,  ed.  Tardif,  ii.  56,  ch.  20. 

2"Omnia  mobilia  ipsius  domini  regis  debent  esse  aut  illius  in  cujus 
terra  est":  Teulet,  Layettes  du  Tr6sor  des  Chartes,  i.  no.  785;  Duchesne, 
Hist.  Norm.  Scriptores,  1060  cf.  Tardif,  Coutumiers  de  Normandie,  i. 
pt.  ii.  93;  Delisle,  Cat.  des  Actes  de  Philippe- Auguste,  no.  961. 

8 " Distributio  bonorum  ejus  ecclesiastica  auctoritate  net":  Ralph  of 
Diceto,  Imagines  Historiarum  (Rolls  Series),  ii.  88. 

4Cal.  of  Charter  Rolls,  i.  441. 

6  Cf.  Rot.  Lit.  Claus.,  i.  620. 

6"Nullus  praelatus  vel  judex  ecclesiasticus  .  .  .  de  bonis  eorum  qui 
intestati  decedunt  se  aliquatenus  intromittat,  sed  fisco  bona  hujusmodi 
applicentur":  Gilbert,  Historic  Documents  (Rolls  Series),  181; 
Chartae  Hiberniae,  32. 


726         IX.     WILLS,  DESCENT,  MARRIAGE 

the  rolls  of  the  twelfth  and  thirteenth  centuries  show  that  the 
chattels  of  intestates  were  sometimes  seized  by  the  king, l 
but  in  these  cases  he  was  probably  exercising  this  right  be- 
cause he  was  the  feudal  lord.  In  1284  Edward  I.  craved  a 
grant  of  the  goods  of  intestates  from  Pope  Martin  IV.,  to 
help  pay  the  expenses  of  his  proposed  crusade,  and  met  with 
.a  refusal,2  though  a  grant  of  this  sort  had  been  made  in 
1256.3  These  negotiations  with  the  papacy  imply  that 
Henry  III.  and  Edward  I.  did  not  regard  such  goods  as  the 
property  of  the  crown. 

The  evidence  at  our  disposal  indicates  that,  according  to 
the  older  law  of  England,  the  personal  property  of  the  in- 
testate was  forfeited  to  the  feudal  lord.  Cnut's  doom 
seems  to  imply  that  already  before  the  Norman  Conquest 
the  lords  were  trying  to  obtain  this  right :  "  If  anyone  dies 
intestate,  be  it  through  his  neglect  or  through  sudden  death, 
then  let  not  the  lord  draw  more  from  his  property  than  his 
lawful  heriot ;  and  according  to  his  direction  let  the  prop- 
erty be  distributed  very  justly  to  the  wife  and  children  and 
relations."4  -Domesday  Book  tells  us  that  in  the  time  of 

1 "  Aldredus  de  Muchelegate  debet  Ix.  marcas  de  catallis  Reginald! 
qui  obiit  in  domum  suam  (sic)  sine  divisa":  Pipe  Roll,  16  Hen.  II. 
p.  46.  "Rogerus  [de  Floketorp]  cepit  de  Emma  quae  fuit  uxor  Hu- 
gonis  Flaxenebert  de  Kyneburl'  per  manum  Eustacii  Noth  de  eadem, 
executoris  dicti  Hugonis,  eo  quod  imposuit  eis  quod  dictus  Hugo  de- 
cessit  intestatus  et  quod  medietas  bonorum  suorum  fuit  domino  regi,  et 
ideo  cepit  xx.  s.  ad  opus  suum  proprium":  3  Edw.  I.,  Rotuli  Hundred- 
orum,  i.  447.  This  was  wrongfully  exacted,  for  a  jury  found  that  Hugh 
had  died  testate.  Roger  was  the  bailiff  of  a  manor  that  had  escheated 
to  the  king.  See  ibid.,  i.  445,  449.  See  also  Rot.  Lit.  Claus.,  i.  537 
(writ,  7  Hen.  III.,  stating  that  Richard  Fitzdune  did  not  die  intestate, 
and  therefore  his  chattels  seized  on  behalf  of  the  king  are  to  be  given 
to  his  executors) ;  Close  Roll,  17  Hen.  III.,  cited  by  Selden,  Works,  iii. 
1682  (writ  ordering  that  a  parson  is  to  have  his  mortuary  out  of  the 
chattels  of  Robert  de  Weston,  who  died  intestate).  It  is  difficult  to 
accept  Selden's  contention  that  the  writ  of  7  Hen.  III.  refers  to  seizure 
for  a  debt  due  to  the  king. 

2Cal.  of  Papal  Registers,  i.  474. 

»"Omnia  bona  mobilia  ab  intestato  decedentium  sive  de  regno 
Angliae  sive  de  aliis  terris  [regis  Angliae]  .  .  .  pro  ilia  portione  quae 
juxta  patriae  consuetudinem  decedentes  contingit  ...  ad  opus  .  .  . 
regis  Angliae  ut  votum  suum  efficacius  exequi  valeat":  Rymer's  Foe- 
dera  (Rec.  Com.),  i.  345.  In  1248  Innocent  IV.  decreed  that  the  goods 
of  intestates  should  be  set  aside  by  the  bishops  for  the  needs  of  the 
Holy  Land:  Fournier,  Les  Officials,  89.  At  the  parliament  of  Car- 
lisle, in  1307,  complaint  was  made  that  officers  of  the  pope  derm 
for  his  use  all  the  goods  of  intestates:  Rotuli  Parl.,  i.  220. 

*Cnut's  Laws,  ii.  ch.  70:  Liebermann,  Gesetze,  i.  356. 


70.     GROSS:  MEDIAEVAL  INTESTACY       727 

-!_  -  •         -  -----  .  ..,....._..  •  -r.  . 

Edward  the  Confessor  the  king  could  seize  all  the  goods  of 
his  citizens  of  Hereford  dying  without  a  will.1  The  rule 
set  forth  in  Leis  Willelme,  ch.  34,  that  the  children  of  an 
intestate  shall  divide  the  inheritance  among  them  equally,2 
may  be  construed  as  an  assertion  against  the  claims  of  the 
lords.  The  coronation  charter  of  Henry  I.  says  that  if  any 
royal  vassal  meets  a  sudden  death  by  arms  or  sickness  and. 
makes  no  disposition  of  his  effects  (pecunia),  his  wife,  chil- 
dren, kinsmen,  or  liege  men  shall  distribute  them  for  the 
good  of  his  soul. 3  This  regulation  applies  only  to  royal  vas- 
sals, and  it  seems  to  imply  that,  except  in  cases  of  sudden 
death,  the  king  as  lord  might  exercise  the  power  of  confisca- 
tion. 4  Glanvill  clearly  states  that  when  any  one  dies  intes- 
tate all  his  chattels  are  understood  to  belong  to  his  lord,5 
and  this  seems  to  be  confirmed  by  some  entries  in  the  Pipe 
Rolls  of  Henry  II.6  The  chapter  of  John's  Great  Charter 
enacting  that  the  chattels  of  a  free  man  who  dies  intestate 
should  be  distributed  by  the  hands  of  his  near  kinsmen  or 
friends  under  the  supervision  of  the  church, 7  seems  to  have 
transferred  power  from  the  king  and  other  lords  to  the  prel- 
ates ;  and,  though  this  chapter  was  omitted  in  the  confirma- 
tions of  the  charter,  probably  because  it  collided  with  the 
interests  of  the  lay  lords,  the  church  exercised  the  right  to 
distribute  the  personal  property  of  intestates  since  the  sec- 


1  Below,  p.  126,  n.  5. 

2  Liebermann,  Gesetze,  i.  514. 

9  Ibid.,  i.  522.  According  to  King  Stephen's  charter,  the  goods  of 
intestate  clerics  were  to  be  distributed  for  the  benefit  of  the  soul  by 
the  counsel  of  the  church:  Stubbs,  Select  Charters,  120;  cf.  Pollock  and 
Maitland,  English  Law,  2nd  ed.,  i.  519.  In  1190  the  clergy  of  Nor- 
mandy claimed  that  such  goods  do  not  belong  to  the  secular  power, 
but  should  be  distributed  by  episcopal  authority  for  pious  uses:  Ralph 
of  Diceto,  Imagines  Hist.,  ii.  87. 

4  According  to  the  Grand  Coutumier  of  Normandy  and  the  fitablisse- 
ments  de  Saint  Louis,  desperati  or  inconfessi  do  not  forfeit  their  mov- 
ables in  case  of  sudden  death,  but  only  after  a  fatal  illness  of  eight 
or  nine  days:  Auffroy,  Evolution  du  Testament,  556;  Du  Cange,  s.  v. 
intestatio.  See  also  the  rule  laid  down  by  the  clergy  of  Normandy  in 
1190  and  the  inquest  made  in  1205,  above,  p.  121. 

6Bk.  vii.  ch.  16:  "Cum  quis  vero  intestatus  decesserit  omnia  catalla 
sua  sui  domini  esse  intelliguntur ;  si  vero  plures  habuerit  dominos,  quil- 
ibet  eorum  catalla  sua  recuperabit  quae  in  feodo  suo  reperiet." 

8  18  Hen.  II.,  pp.  98,  133. 

'Stubbs,  Select  Charters,  300,  ch.  27. 


728         IX.     WILLS,  DESCENT,  MARRIAGE 

ond  quarter  of  the  thirteenth  century1  and  perhaps  since  the 
early  part  of  Henry  III.'s  reign.  The  constitutions  of  Wal- 
ter of  Cantilupe,  bishop  of  Worcester  (1240),  assert  that 
the  distribution  should  be  made  under  the  supervision  of  the 
lord  and  him  whom  the  bishop  shall  have  deputed  for  that 
purpose.2  This  arrangement  looks  like  a  compromise  in  a 
^struggle  between  the  barons  and  the  prelates  or  between  the 
principles  set  forth  in  Cnut's  doom  and  in  John's  charter. 
JBracton's  statement  of  the  law  of  his  time  is  also  reminiscent 
of  the  older  law :  "  If  a  free  man  dies  intestate  and  suddenly, 
his  lord  should  in  no  wise  meddle  with  his  goods,  save  in  so 
far  as  this  is  necessary  in  order  that  he  may  get  what  is  his, 
namely,  his  heriot,  but  the  administration  of  the  dead  man's 
goods  belongs  to  the  church  and  to  his  friends,  for  a  man 
does  not  deserve  punishment  although  he  has  died  intes- 
tate."3 

There  are,  moreover,  indications  that  in  Bracton's  day 
and  later  the  lords  remembered  their  old  right,  and  some- 
times tried  to  assert  it  in  defiance  of  the  church.  In  the  arti- 
cles presented  to  Henry  III.  by  the  bishops  in  1257,  it  is 
stated  that  the  king  and  other  feudal  lords  seize  the  goods 
of  intestates,  and  do  not  permit  their  debts  to  be  paid  or 
the  residue  to  be  applied  by  the  ordinary  to  the  use  of  the 
children  or  kinsmen  and  to  other  pious  uses.4  Lords  who 
<io  this  were  threatened  with  excommunication  at  the  Coun- 
cil of  Merton  in  1258,  and  at  the  Council  of  Lambeth  in 
1261. 5  In  1279  Archbishop  Peckham  rebukes  Llewellyn, 
prince  of  Wales,  for  confiscating  "  bona  mtestatorum  ves- 
trorum";6  and  in  1305  the  bishop  of  Llandaff  complains 
to  Edward  I.  that  the  magnates  will  not  allow  him  to  admin- 


*In  1239  a  rule  is  made  regarding  the  administration  of  the  goods 
of  intestates  in  the  absence  of  the  bishop:  Wilkins,  Concilia,  i.  664. 

zlbid.,  i.  675. 

'Bracton,  f.  60  b,  ed.  Twiss,  i.  480.  Bracton's  text  is  open  to  the 
interpretation  that  if  intestacy  is  not  occasioned  by  sudden  death  it 
may  be  a  cause  of  forfeiture. 

*  Matthew  Paris,  Chronica  Majora,  ed.  Luard,  vi.  358;  Wilkins,  Con- 
cilia, i.  728;  cf.  ibid.,  i.  724. 

8  Ibid.,  i.  740,  754;  cf.  ibid.,  ii.  705. 

•Registrum  J.  Peckham,  i.  77. 


70.     GROSS:  MEDIAEVAL  INTESTACY       729 

ister  the  goods  of  intestates.1  The  lords  also  continued,  in 
some  parts  of  England  at  least,  to  confiscate  the  chattels 
of  their  villeins  dying  intestate.2 

In  the  marches  of  Wales  the  old  law  in  favor  of  the  lords 
seems  to  have  been  maintained  long  after  the  reign  of  Ed- 
ward I.  In  1278  the  lord  of  Kernes  agreed  to  waive  his  claim 
to  the  property  of  intestates.3  In  1352  Edward  III.  ordered 
three  commissioners  to  inquire  whether  Sir  Henry  Hastings, 
a  tenant-in-chief,  and  others  died  intestate,  and  whether,  ac- 
cording to  the  custom  of  the  marches  of  Wales,  all  the  chat- 
tels of  tenants  dying  intestate  belonged  to  their  lords.  A 
jury  sworn  before  two  of  the  commissioners  in  1354  declare 
that  from  time  immemorial  it  has  been  customary  for  the 
lords  to  have  all  such  chattels.4  They  say  that  Sir  Henry 
left  a  will,  but  that  Grono  ap  levan  died  intestate  during  the 
present  reign ;  his  chattels  are  worth  40s.5  An  attempt 
was  made  to  enforce  the  old  custom  as  late  as  the  reign  of 
Edward  VI.6 

Attention  must  finally  be  called  to  the  town  charters, 
which,  though  they  contain  many  references  to  intestacy, 
have  been  passed  over  in  silence  by  all  writers  on  this 
subject.  Their  examination  will  confirm  the  view  that  long 
after  Bracton  wrote  his  law-book  the  king  and  other  lay 
lords  still  remembered  their  old  right,  and  that  their  ten- 
Memoranda  de  Parliamento,  1305,  ed.  Maitland,  73.  The  king  an- 
swered that  he  would  not  interfere  with  the  custom  of  the  country, 
meaning  perhaps  the  custom  of  Wales.  For  conflicts  arising  from  the 
claims  of  the  prelates  in  France,  see  Auffroy,  Evolution  du  Testament, 
558-60. 

2  Court  Rolls  of  the  manor  of  Wakefield,  ed.  Baildon,  i.  256,  260; 
Rotuli  Hundredorum,  ii.  758;  Pollock  and  Maitland,  2nd  ed.,  i.  417. 
Some  lords  did  not  permit  their  serfs  to  make  wills  or  impeded  their 
execution:  Letters  from  Northern  Registers,  73;  Wilkins,  Concilia,  i. 
724,  740,  754,  ii.  155,  553,  705. 

8  "  Item  si  aliquis  liber  homo  de  Kemeis  decedat  intestatus  praedictus 
dominus  nihil  habebit  de  bonis  intestati":  Baronia  de  Kemeys  (Cam- 
brian Archaeol.  Assoc.),  59. 

'"Consuetudo  est  in  marchia  Walliae  optata  [?  obtentaj  et  usitata 
quod  domini  partium  illarum  omnia  bona  et  catalla  tenentium  suorum 
in  partibus  illis  intestatorum  decedentium  ratione  dominii  sui  praedicti 
habent  et  habere  consueverunt  a  tempore  quo  non  extat  memoria." 

•Baronia  de  Kemeys,  14,  71. 

•  Ibid.,  15.  In  1485  we  hear  of  the  office  of  selling  goods  of  intestates 
in  the  county  of  Flint,  —  an  office  which  seems  to  have  been  in  the  gift 
of  the  king:  Rotuli  Parl.,  vi.  353. 


730         IX.     WILLS,  DESCENT,  MARRIAGE 

ants,  in  the  boroughs  at  least,  regarded  exemption  from  its 
exercise  as  a  privilege.  The  following  list  of  references  to 
the  evidence  on  this  subject  does  not  profess  to  be  exhaust- 
ive.1 


Bala,  1289:  Record  of  Caernarvon,  175. 
Bath,  1256:  Warner,  History  of  Bath,  app.  xlv. 
Beaumaris,  1296:  Record  of  Caernarvon,  159. 
Bere,  1284:  Archaeologia  Cambrensis,  1849,  iv.  216. 
Bristol,  1256:  Seyer,  Charters  of  Bristol,  22. 

*  Cardiff,  before  1183:  Clark,  Cartae  de  Glamorgan,  iii.  78.' 
Cardigan,  1284:  Placita  de  quo  Warranto,  821. 
Carmarthen,  1257:  Charters  of  Carmarthen,  7. 
Carnarvon,  1284:  Record  of  Caernarvon,  185. 

*  Chester,  c.  1200:  Hist.  MSS.  Com.,  viii.  356.8 
Chester,  1300:  ibid.,  viii.  357.3 

Conway,  1284:  Record  of  Caernarvon,  163. 
Cork,  1242:  Chartae  Hiberniae,  25.* 
Criccieth,  1284:  Record  of  Caernarvon,  197. 
Flint,  1284:  Taylor,  Notices  of  Flint,  32. 
Guildford,  1257:  Cal.  of  Charter  Rolls,  i.  456. 
Harlech,  1284:  Record  of  Caernarvon,  193. 

*  Haverfordwest,  1219-31 :  English  Hist.  Review,  xv.  518.6 
Haverfordwest,  1291:  ibid. 

Hereford,  1086:  Domesday  Book,  i.  179  a.6 
*Kells,  temp.  John:  Chartae  Hiberniae,  17.7 

*  Kidwelly,  1329:  Archaeologia  Cambrensis,  1856,  ii.  276. 8 
Kingston-upon-Thames,  1256:  Roots,  Charters  of  Kingston,  28. 

*  Laugharne,  1300:  Archaeologia  Cambr.,  1879,  x.  suppl.  xlii. 
Newborough,  1284:  Record  of  Caernarvon,  179. 

lfThe  references  are  to  town  charters,  excepting  those  concerning 
Cardiff,  Hereford,  Preston,  and  Tewkesbury,  which  are  to  customals  or 
to  Domesday  Book.  The  asterisk  indicates  that  the  privilege  was  granted 
by  a  baron.  Where  there  is  no  asterisk  the  reference  is  to  a  royal 
charter,  except  in  the  cases  of  Hereford  and  Preston. 

8  "  Item  quacunque  morte  burgensis  praeoccupatus  fuerit,  nisi  per 
nequitiam  dampnatus,  uxor  ejus  et  liberi  sui  habebunt  catalla  mortui 
vel  proximi  parentes  ipsius  tanquam  heredes  si  non  habuerit  uxorem  vel 
liberos."  From  a  customal  of  the  twelfth  century. 

8 "  Et  si  aliquis  civis  de  praedicta  civitate  in  servitio  meo  occisus 
fuerit,  de  catallis  suis  fiat  ac  si  ipse  rationabile  testamentum  fecisset." 

*  Whether  they  die  testate  or  intestate,  the  goods  of  the  citizens  are 
not  to  be  confiscated  by  the  king  but  are  to  go  to  their  heirs. 

6 "  Heres  burgensis  quacumque  morte  praeoccupati  habeat  heredita- 
tem  et  catallum  patris  sui." 

6 "  Si  quis  morte  praeventus  non  divisisset  quae  sua  erant,  rex  habebat 
omnem  ejus  pecuniam." 

7 "  Quicumque  praedictorum  burgensium  de  K.  sive  in  terra  sive  in 
mari  testatus  vel  intestatus  obierit,  heres  ipsius  duodecim  denarios  in 
relevium  pacabit  et  hereditatem  suam  quiete  possidebit." 

8  Henry,  duke  of  Lancaster,  grants,  2  Edw.  [III.],  that  if  any  burgher 
should  die  intestate  his  son  and  heir  shall  have  his  property  "without 
challenge  of  us  or  our  heirs." 


70.     GROSS:  MEDIAEVAL  INTESTACY       731 

*  Newport  (Pembrokesh.),  1192(?):  Baronia  de  Kemeys,  15,  50.1 
Northampton,  1257:  Cal.  of  Charter  Rolls,  i.  459. 

Oswestry,  1398:  Shropsh.  Archaeol.  Soc.,  Trans.,  ii.  192. 

*  Oswestry,  1407 :  ibid.,  ii.  199. 
Oxford,  1257:  Ogle,  Royal  Letters,  11. 

Pembroke,  temp.  Hen.  II.:  Cal.  of  Patent  Rolls,  1377-81,  p.  107.2 

Preston,  temp.  Hen.  II.  (?):  English  Hist.  Review,  xv.  499. 3 

Rhuddlan,  1279:  Cal.  of  Patent  Rolls,  1272-81,  p.  324. 

*Saltash,  temp.  Hen.  III.:  Luders,  Reports,  ii.  119. 4 

Shrewsbury,  1256:  Owen  and  Blakeway,  Hist,  of  Shrewesbury,  i.  121. 

Stamford,  1257:  Cal.  of  Charter  Rolls,  i.  472. 

*Tenby,  temp.  Hen.  III.:  English  Hist.  Review,  xvi.  103. 5 

*Tewkesbury,  before  1183:  Clark,  Cartae  de  Glamorgan,  iii.  78. 6 

The  same  formula  is  used  in  the  royal  charters  with  few 
exceptions:7  the  king  promises  that  if  any  burgesses  should 
die  within  his  dominions  testate  or  intestate,  he  will  not  cause 
their  chattels  to  be  confiscated,  but  the  heirs  shall  have  them 
intact,  in  so  far  as  it  can  be  shown  that  they  belonged  to 
the  deceased,  provided  that  sufficient  knowledge  or  proof  of 
the  heirs  can  be  had. 8  Perhaps  the  demand  for  this  privilege 

1 "  Item  si  burgensis  moritur  de  quacunque  morte  morietur,  nisi  per 
judicium  pro  felonia  vitam  suam  amittat,  ego  nihil  habebo  de  catallo 
nisi  relevium  scilicet  xii.  d." 

2"Et  [si]  burgensis  ejusdem  villae  quacumque  morte  et  quocumque 
loco  sive  in  terra  sive  in  mari  sive  cum  testamento  sive  sine  testamento 
moriatur,  heres  suus  omnes  res  suas  habeat  per  donandum  xii.  d.  de 
relevio." 

8 "Si  burgensis  de  villa  morte  subitanea  obierit,  uxor  ejus  et  heredes 
sui  omnia  catalla  sua  et  terras  suas  quiete  habebunt.  Ita  quod  domi- 
nus  suus  nee  justiciarii  manum  ponant  in  domibus  vel  in  catallis  de- 
functi  nisi  publice  excommunicatus  fuerit,  sed  consilio  sacerdotis  et 
vicinorum  in  elemosinis  expenduntur." 

*  Reginald  de  Valle  Torta  grants  to  his  burgesses :  "  et  quisquis  illorum 
obierit  de  quacunque  morte  fuerit,  heres  ejus  catalla  ipsius  in  pace 
habebit  et  terrain  suam  per  triginta  denarios  releviabit  ad  plus." 

5"Concedimus  quod  si  quis  burgensium  praedictorum  morte  subita, 
quod  absit,  moriatur,  omnia  catalla  sua  sibi  fore  salva  et  heredem  suum 
in  hereditatem  suam  per  relevium  xii.  d.  libere  introire." 

6Customal  of  Cardiff  and  Tewksbury.     See  above,  under  Cardiff. 

7  The  exceptions  are  Chester,  Cork,  and  Pembroke.  In  the  charters  of 
Chester  and  Cork  the  formula  is  merely  abbreviated. 

8 "  Si  dicti  burgenses  aut  eorum  aliqui  infra  terram  et  potestatem  nos- 
tram  testati  decesserint  vel  intestati,  nos  vel  heredes  nostri  bona  ipsorum 
confiscari  non  faciemus,  quin  eorum  heredes  ea  integre  habeant,  quatenus 
dicta  catalla  dictorum  defunctorum  fuisse  constiterit,  dum  tamen  de  dic- 
tis  heredibus  notitia  aut  fides  sufficienter  habeatur."  This  formula  is 
also  used  in  the  baronial  charters  of  Laugharne  and  Oswestry,  and  in 
a  grant  made  by  Henry  III.  to  the  burgesses  of  St.  Omer  (Cal.  of  Char- 
ter Rolls,  i.  441);  instead  of  "heirs"  the  charter  of  Oswestry  (1407) 
has  "  heirs  and  executors."  The  formula,  as  set  forth  above,  should  be 
compared  with  that  of  a  charter  granted  during  the  reign  of  Henry  II. 
by  his  son  Richard  to  the  men  of  La  Rochelle:  "Quicumque  ex  illis 


732         IX.     WILLS,  DESCENT,  MARRIAGE 

was  stimulated  in  1256-57  and  1284  by  the  negotiations  be- 
tween the  crown  and  the  papacy.1  The  charters  of  baronial 
towns  which  state  that  the  chattels  of  burgesses  who  die 
suddenly  or  "  by  any  sort  of  death  "  shall  go  to  their  heirs, 
doubtless  refer  to  cases  of  intestacy.  A  grant  of  Henry  II. 
to  La  Rochelle  tells  us  that  a  burgher  who  breaks  his  neck 
or  is  drowned  has  not  an  opportunity  to  confess  and  make 
his  will;  therefore  his  property  is  to  be  distributed  by  his 
kinsmen  and  friends  for  the  good  of  his  soul.2 

The  town  records  of  England  give  little  information  con- 
cerning the  disposition  of  the  goods  of  the  intestate.  The 
rule  laid  down  in  the  Preston  customal  seems  to  mean  that 
out  of  his  estate  provision  was  to  be  made  for  the  benefit  of 
his  soul  by  the  parish  priest  and  the  dead  man's  friends  or 
kinsmen.3  According  to  the  customal  of  Sandwich,  which 
probably  records  the  usages  of  the  fourteenth  and  fifteenth 
centuries,  the  mayor  and  jurats  have  the  administration  of 
the  bona  mtestatorum  in  the  following  manner.  The  mayor 
takes  with  him  the  jurats  and  sometimes  the  rector  or  vicar 
of  the  dead  man's  parish,  and  they  ascertain  what  he  pos- 
sessed in  money,  goods,  and  debts  at  the  time  of  his  death. 
Then  they  appoint  two  executors,  who  are  sworn  to  make 
an  inventory.  After  payment  of  debts  and  funeral  expenses, 
the  residue  is  divided  into  three  equal  parts,  if  there  is  a 
wife  and  children ;  into  two  equal  parts,  if  there  is  a  wife 


sive  testatus  sive  intestatus  sive  confessus  sive  non  morietur,  omnes  res 
ejus  et  possessiones  integre  et  quiete  remaneant  heredibus  suis  et  genero 
suo"  (Ordonnances  des  Rois,  xi.  318,  from  the  inspeximus  of  Louis 
VIII.,  1224).  An  inspeximus  of  Alphonse  of  Poitiers,  1241,  adds  the 
words  "id  est"  after  "intestatus":  Besly,  Histoire  des  Comtes  de 
Poitou,  500.  For  other  grants  of  this  privilege  to  French  towns,  see 
Ordonnances  des  Rois,  xi.  319,  321,  337,  495;  Auffroy,  Evolution  du 
Testament,  557. 

1  Above,  p.  122. 

2 "  Si  vero  aliquis  eorum  colli  f ractione  vel  submersione  vel  aliquo  casu 
subita  morte  praeventus  fuerit  et  spatium  confitendi  non  habuerit,  con- 
cedo  ut  secundum  rationabilem  dispositionem  et  considerationem  paren- 
tum  et  amicorum  suorum  res  suae  distribuantur  et  eleemosynae  fiant  pro 
anima  ipsius":  Ordonnances  des  Rois,  xi.  319.  See  also  the  claim  of  the 
clergy  of  Normandy  in  1190,  in  Ralph  of  Diceto,  Imagines  Hist.,  ii. 
88 :  "  Si  quis  vero  subitanea  morte  vel  quolibet  alio  f ortuito  casu  prae- 
occupatus  fuerit,  ut  de  rebus  suis  disponere  non  possit,  distributio 
bonorum  ejus  ecclesiastica  auctoritate  net." 

8  Above,  p.  127,  n.  2. 


70.     GROSS:  MEDIEVAL  INTESTACY       733 

but  no  children.  Then  the  dead  man's  part  (the  third  or 
half)  is  distributed  for  the  benefit  of  his  soul;  and  finally 
the  executors  render  an  account  before  the  mayor  and  jurats, 
the  friends  or  kinsmen,  and  the  rector  or  vicar,  if  they  desire 
to  be  present.  The  record  adds  that  this  practice  has  been  in 
use  from  ancient  times  without  any  contradiction  on  the  part 
of  the  archdeacon  of  Canterbury  or  any  other  ordinary.1 
The  dead  man's  part  was  probably  expended  for  pious  uses 
in  other  towns,  like  London,  York,  Chester,  Bristol,  Dublin, 
and  Newcastle-upon-Tyne,  where  the  tripartite  division  of 
the  chattels  of  a  man  with  wife  and  children  existed.2  But 
Bracton,  after  speaking  of  the  law  of  intestacy  and  the 
tripartite  division  of  chattels,  vaguely  intimates  that  other 

1 "  Ita  semper  quod  de  bonis  ipsi  defuncto  pro  portione  accidentibus 
fiat  testamentum  per  visum  et  auxilium  amicorum  suorum,  si  interesse 
voluerint,  et  distributio  [sit]  per  manus  ipsorum  executorum  debita  et 
fidelis  [secundum  quod]  credunt  quod  voluntas  sua  fuerit  dum  vixerit, 
et  ad  elemosinam  et  vias  emendendas  pro  anima  sua  juxta  bonorum 
quantitatem.  .  .  .  Et  haec  solent  fieri  ab  antique  usque  ad  nunc  sine 
aliqua  contradictione  domini  archidiaconi  Cantuariensis  vel  alicujus  al- 
terius  ordinarii":  Boys,  Hist,  of  Sandwich,  524-5.  In  some  parts  of 
France  the  priest  or  the  kinsmen  might  make  a  will  on  behalf  of  the 
intestate:  Auffroy,  Evolution  du  Testament,  557;  Recueil  des  Monu- 
ments In6dits,  ed.  Thierry,  iv.  408.  Many  bequests  were  made  by  the 
citizens  of  Bristol  for  the  repair  of  highways:  Wadley,  Abstracts  of 
Wills,  passim.  Another  chapter  of  the  Sandwich  customal  says  that 
the  movables  of  orphans  are  at  the  disposition  of  the  mayor  and  jurats, 
"  quia  apud  nos  catalla  et  bona  mobilia  non  accidunt  hereditarie  hered- 
ibus  defuncti  prout  accidunt  tenementa,  redditus  et  possessiones,"  but 
a  portion  of  such  chattels  is  set  aside  for  masses,  the  repair  of  roads, 
and  similar  works  of  charity;  thus  in  1351  two-thirds  were  distributed 
in  this  way,  and  only  one-third  went  to  the  heirs:  Boys,  514. 

8  For  London,  York,  and  Chester,  see  Sharpe,  Cal.  of  Wills,  i.  p. 
xxxiii.;  Pollock  and  Maitland,  English  Law,  2nd  ed.,  ii.  350;  Widdring- 
ton,  Analecta  Eboracensia,  68,  300;  Statutes  of  the  Realm  (Rec.  Com.), 
vi.  372.  The  rule  laid  down  in  the  Chester  charter  (c.  1200,  above, 

£.  126)  seems  to  imply  that  there  was  a  definite  division  of  the  chattels 
i  that  city.  The  Bristol  wills  often  make  a  threefold  division  of  mov- 
ables: Wadley,  Abstracts  of  Wills,  p.  104,  "tertia  vero  pars  sit  mihi 
hoc  modo";  cf.  ibid.,  pp.  49,  75-77,  81,  90,  91,  100,  103,  etc.  For  "the 
dead's  portion"  (a  third)  at  Dublin,  see  Gilbert,  Cal.  of  Records,  i. 
129,  131.  The  custom  of  Newcastle-upon-Tyne,  that  the  third  part  of 
all  the  goods  of  a  burgher  should  be  inherited  by  his  children,  was 
adopted  by  the  Scotch  burghs:  Ancient  Laws  of  the  Burghs  of  Scot- 
land, ed.  Innes,  55,  172.  Pollock  and  Maitland,  ii.  362,  believe  that  the 
eldest  son  or  heir  could  claim  no  bairn's  part;  but,  according  to  the 
Newcastle  custom,  he  was  to  have  the  same  portion  of  the  goods  as  any 
of  the  other  children.  The  Leges  Burgorum,  ch.  116,  also  give  a  long 
list  of  heirlooms  or  principalia  which  he  inherits:  Ancient  Laws,  56,  cf. 
ibid.,  171. 


734         IX.      WILLS,  DESCENT,  MARRIAGE 

rules  prevailed  in  some  boroughs  and  cities. 1  Most  of  the 
records  say  that  the  personal  property  of  the  intestate  shall 
go  to  his  heirs  or  to  his  wife  and  children,  without  specify- 
ing any  limitation  or  legitim.  The  heirs  would,  however, 
probably  regard  it  as  a  religious  duty  to  do  something  for 
the  repose  of  the  intestate's  soul;  and,  as  at  Preston,  this 
would  naturally  be  done  with  the  help  or  advice  of  the  par- 
ish priest.  But  we  hear  nothing  of  the  intervention  of  the 
ordinary,  except  at  Dublin  in  1268,  when  the  citizens  re- 
sented it;2  and  the  Sandwich  customal  expressly  excludes 
any  intervention  of  this  sort.  Such  opposition  to  the  asser- 
tion of  episcopal  authority  was  to  be  expected  in  towns  the 
magistrates  of  which  had  the  probate  of  wills.  In  many 
boroughs  during  the  thirteenth  and  fourteenth  centuries  the 
municipal  magistrates  pronounced  on  the  validity  of  wills3 

^racton,  f.  61;  Fleta,  bk.  ii.  ch.  57,  §10;  cf.  Pollock  and  Maitland, 
ii.  350,  for  a  criticism  of  Bracton's  statement  regarding  London. 

2  Above,  p.  122.     In  the  same  year  the  citizens  of  London  were  ex- 
communicated for  admitting  wills  to  probate  in  the  hustings:  Liber  de 
Antiquis  Legibus,  106. 

3  For   probate   in   the   hustings    of   London   from    1256    onward,   see 
Sharpe,  Cal.  of  Wills,  i.  pp.  xlii-xlvi;  Liber  Albus,  180,  403,  407;  Ri- 
cart's  Kalendar,  97-99;  Pollock  and  Maitland,  ii.  331.     See  also  Domes- 
day of  Ipswich,  ed.  Twiss,  70-86;  Bacon,  Annals  of  Ipswich,  10,  16,  25- 
27,  41-46,  50-55,  59-61,   68-73,  etc.    (wills  proved   from   1269   onward); 
Placitorum  Abbreviatio,  211,  216,  235    (Canterbury,  Oxford,  and  Lon- 
don, temp.  Edw.  I.)  ;  Little  Red  Book  of  Bristol,  ed.  Bickley,  i.  32,  52- 
54   (ordinance  concerning  probate,  1344,  etc.)  ;  Hist.  MSS.  Com.  xi.  pt. 
iii.   188    (grant  by  Edw.   II.  that  wills  touching  tenements   in   King's 
Lynn  shall  be  proved  and  enrolled  before  the  mayor)  ;  Owen  and  Blake- 
way,  Hist,  of  Shrewsbury,  i.  382;   Oliver,  Hist,  of  Exeter,  222;  Wid- 
drington,  Analecta  Eboracensia,  71.     These  references  suffice  to  modify 
or  confute  the  opinion  of  Bracton  and  the  decision  of  the  royal  judges, 
19  Edw.  I.   (Pollock  and  Maitland,  ii.  330),  that  the  jurisdiction  over 
bequests  of  burgage  tenements  belonged  to  the  ecclesiastical  courts.     In 
some  boroughs  a  will  was  proved  first  before  a  representative  of  the 
bishop,  and  afterwards  before  a  town  magistrate  in  the  gildhall:  Wad- 
ley,  Abstracts  of  Bristol  Wills,  3,  5,  7,  etc.;  Manship,  Hist,   of  Yar- 
mouth, 405 ;  Bacon,  Annals  of  Ipswich,  41 ;  Tighe  and  Davis,  Annals  of 
Windsor,  i.  324;  Registers  of  Walter  Bronescombe,  etc.,  ed.  Hingeston- 
Randolph,  436    (Exeter);   Hist.   MSS.   Com.,  xi.  pt.  iii.   233-4    (King's 
Lynn).     Perhaps  a  canon  of  Boniface's   Constitutions    (1261,  Wilkins, 
Concilia,  i.  754;  cf.  Ibid.,  i.  550,  ii.  705)   may  be  directed  against  this 
practice:  "Item  testamentis  coram  ordinariis  locorum  probatis  et  ap- 
probatis  eorundem  probatio  seu  approbatio  testamentorum  a  laicis  nul- 
latenus  exigatur."    Though  the  records  emphasize  the  claim  of  the  bur- 
gesses that  wills  devising  burgage  tenements  should  be  proved  in  the 
borough  court,  many  of  the  wills  thus  proved  (for  example,  at  London, 
Bristol,  and  King's  Lynn)   bequeathed  chattels  only,  or  both  chattels 
and  land. 


7%.     GROSS:  MEDIEVAL  INTESTACY       735 

and  administered  justice  on  behalf  of  the  legatee  whose  leg- 
acy was  withheld,1  though  this  jurisdiction  was  evidently 
regarded  with  disfavor  by  the  prelates.2  The  municipal 
authorities  before  whom  wills  were  proved  would  naturally 
claim  the  right  to  administer  the  intestate's  property.  "  The 
right  to  regulate  the  administration  of  intestates  was  too 
closely  connected  with  the  testamentary  jurisdiction  to  be 
conveniently  sevarated  from  it."  3 

While  we  have  tried  to  show  that  there  are  indications 
of  a  struggle  of  the  feudal  lords  to  obtain  or  maintain  their 
right  to  confiscate  the  chattels  of  intestates  —  a  struggle 
which  lasted  from  the  time  of  Cnut  to  the  time  of  Edward  I., 
and  of  which  we  still  find  reminiscences  in  the  records  of  the 
fourteenth  century,  —  the  main  obj  ect  of  this  paper  has 
been  to  call  attention  to  the  fact  that  throughout  the  thir- 
teenth century  many  boroughs  were  purchasing  from  their 
lords  a  favor  or  privilege  which,  according  to  Bracton,  was 
the  right  of  every  free  man.  In  the  very  decade  when  Brac- 
ton was  asserting  that  the  lord  shall  not  meddle  with  the 
intestate's  goods,  the  lords  were  selling  a  burghal  franchise 
which  implied  that  they  had  the  right  to  seize  such  goods. 
The  importance  of  personal  property  in  boroughs,  which  was 
due  to  the  predominance  of  mercantile  over  agricultural  in- 
terests, would  naturally  make  both  the  lords  and  the  bur- 
gesses inclined  eagerly  to  assert  their  claims  against  the 
pretensions  of  the  prelates.  The  old  law  of  intestacy,  as 
set  forth  by  Glanvill,  pressed  more  heavily  upon  the  trades- 
men, whose  wealth  was  made  up  mainly  of  chattels,  than  upon 
rural  freeholders  and  villeins.  It  is  not  strange,  therefore, 
that  the  town  law  since  the  thirteenth  century  strove  to  re- 

1  Since  the  first  half  of  the  fourteenth  century  we  hear  of  actions  in 
the  borough  courts  by  the  writ  ex  gram  querela  to  recover  bequests  of 
burgage   tenements:   Little    Red    Book   of   Bristol,   ed.    Bickley,   i.   33; 
Liber  Assisarum,  f.  232,  250;  Law  Quarterly  Review,  i.  265.     As  early 
as  1291   the  legatee  had   a  remedy  in  the  borough  court  of  Ipswich 
against   the   executors   who   would   not   give  him   seisin:   Domesday   of 
Ipswich,  ed.  Twiss,  72,  82. 

2  Liber  de  Antiquis  Legibus,  106;  Letters  from  Northern  Registers, 
71. 

8  Stubbs,  in  Report  of  Eccles.  Courts  Commission,  1883,  p.  xxiii.  He 
makes  this  statement  in  speaking  of  the  jurisdiction  of  the  church  tri- 
bunals. 


736         IX.     WILLS,  DESCENT,  MARRIAGE 

ject  the  pretensions  of  both  lords  and  prelates,  and  to  estab- 
lish the  rule  that  the  chattels  of  the  intestate  should  go  to 
his  kinsmen,  who  would,  however,  be  expected  to  devote  a 
portion  of  his  property  to  pious  works  for  the  atonement  of 
his  sins  and  the  benefit  of  his  soul. 


73.     EXECUTORS  IN  EARLIER  ENGLISH  LAW1 
BY  OLIVER  WENDELL  HOLMES,  Jn.2 

AT  the  present  day  executors  and  administrators  hold  the 
assets  of  the  estate  in  a  fiduciary  capacity.  Their 
rights  and  liabilities  in  respect  of  the  fund  in  their  hands, 
are  very  like  those  of  trustees.  But  this  way  of  regarding 
them  is  somewhat  modern.  I  wish  to  call  attention  to  several 
changes  in  the  law  which  have  taken  place  at  different  times 
and  without  reference  to  each  other,  for  the  purpose  of  sug- 
gesting that  they  are  witnesses  of  an  older  condition  of 
things  in  which  the  executor  received  his  testator's  assets  in 
his  own  right.  As  usually  is  the  case  with  regard  to  a  collec- 
tion of  doctrines  of  which  one  seeks  to  show  that  they  point 
to  a  more  general  but  forgotten  principle,  there  can  be  found 
a  plausible  separate  explanation  for  each  or  for  most  of 
them,  which  some,  no  doubt,  will  regard  as  the  last  word  to 
be  said  upon  the  matter. 

I  have  shown  elsewhere  that  originally  the  only  person 
liable  to  be  sued  for  the  debts  of  the  deceased,  if  they  were 
disputed  and  had  not  passed  to  judgment  in  the  debtor's 
lifetime,  was  the  heir.3  In  Glanville's  time,  if  the  effects  of 
the  ancestor  were  not  sufficient  for  the  payment  of  his  debts 
the  heir  was  bound  to  make  up  the  deficiency  out  of  his  own 


lrThis  Essay  was  first  published  in  the  Harvard  Law  Review,  1895, 
vol.  IX,  pp.  42-48. 

2  A  biographical  note  of  this  author  is  prefixed  to  Essay  No.  41,  in 
Volume  II  of  this  Collection. 

3  Early  English  Equity,  1  Law  Quart.  Rev.  165.    The  Common  Law, 
348.    Bracton  407  b,  61,  98  a,  101  a,  113  b.    The  article  referred  to  in 
the  Law  Quarterly  Review  shows  the  origin  and  early  functions  of  the 
executor.    It  is  not  necessary  to  go  into  them  here. 


738         IX.     WILLS,  DESCENT,  MARRIAGE 

property.1  In  the  case  of  debts  to  the  king,  this  liability 
continued  as  late  as  Edward  III, 2  royalty  like  religion  being 
a  conservator  of  archaisms.  The  unlimited  liability  was 
not  peculiar  to  England.  3  While  it  continued  we  may  con- 
jecture with  some  confidence  that  a  judgment  against  the 
heir  was  not  confined  to  the  property  which  came  to  him 
from  his  ancestor,  and  that  such  property  belonged  to  him 
outright.  At  a  later  date,  M.  Viollet  tells  us,  the  French 
customary  law  borrowed  the  benefit  of  inventory  from  the 
Roman  law  of  Justinian.  The  same  process  had  taken  place 
in  England  before  Bracton  wrote.  But  in  the  earliest 
sources  it  looks  as  if  the  limitation  of  liability  was  worked 
out  by  a  limitation  of  the  amount  of  the  judgment,  not  by 
confining  the  judgment  to  a  particular  fund.4 

As  was  shown  in  the  article  above  referred  to,  the  executor 
took  the  place  of  the  heir  as  universal  successor  within  the 
limits  wrhich  still  are  familiar,  shortly  after  Bracton  wrote. 
His  right  to  sue  and  the  right  of  others  to  sue  him  in  debt 
seemed  to  have  been  worked  out  at  common  law. 5  It  hardly 
needs  argument  to  prove  that  the  new  rights  and  burdens 
were  arrived  at  by  treating  the  executor  as  standing  in  the 

1 "  Si  vero  non  sufficiunt  res  defuncti  ad  debita  persolvenda,  tune 
quidem  haeres  ejus  defectum  ipsum  de  suo  tenetur  adimplere:  ita  dico 
si  habuerit  aetatem  haeres  ipse."  Glanville,  Lib.  7,  c.  8.  Regiam  Majes- 
tatem,  Book  2,  c.  39,  §  3. 

»2  Rot.  Parl.  240,  pi.  35.     St.  3  Ed.  I.,  c.  19. 

8  Ass.  Jerus.,  Bourgeois,  ch.  cxciii.  2  Beugnot,  130.  Paul  Viollet, 
Hist,  du  Droit  Fran9.,  2d  ed.  829. 

4  Viollet,  op.  cit.  The  Common  Law,  347,  348.  "  Hasres  autem  de- 
functi tenebitur  ad  debita  predecessoris  sui  acquietanda  eatenus 
quatenus  ad  ipsum  pervenerit,  sci.  de  haareditate  defuncti,  et  non  ultra," 
&c.  Bracton,  61  a. 

"  Notandum  tamen  est,  quod  nullus  de  antecessoris  debito  tenetur 
respondere  ultra  valorem  huius,  quod  de  eius  hereditate  dignoscitur 
possidere."  Somma,  Lib.  2,  c.  22,  §  5,  in  7  Ludewig,  Reliq.  Manuscript. 
308,  309.  Grand  Coustum.  c.  88.  Compare  also  St.  Westm.  II.  (13  Ed. 
I.)  c.  19,  as  to  the  liability  of  the  ordinary;  "  Obligetur  decetero  Ordi- 
narius  ad  respondendum  de  debitis,  quatenus  bona  defuncti  sufficiunt, 
eodem  modo  quo  executores  hujusmodi  respondere  tenerentur  si  testa- 
mentum  fecisset."  See  the  cases  stated  below.  I  know  of  no  early- 
precedents  or  forms  of  judgments  against  heirs.  I  wish  that  Mr.  Mait- 
land  would  give  the  world  the  benefit  of  his  knowledge  and  command 
of  the  sources  on  the  matter.  Later  the  judgment  against  heirs  was 
limited  to  assets  descended.  Townesend,  Second  Book  of  Judgments, 
67,  pi.  26. 

6Y.  B.  20  &  21  Ed.  I.  374,  30  Ed.  I.  238.  11  Ed.  III.  142.  Id.  186. 
(Rolls  ed.) 


73.     HOLMES:  EARLY  ENGLISH  EXECUTORS  739 

place  of  the  heir.  The  analogy  relied  on  is  apparent  on  the 
face  of  the  authorities,  and  in  books  of  a  later  but  still  early 
date  we  find  the  express  statement,  executores  universales 
loco  hceredis  sunt,1  or  as  it  is  put  in  Doctor  and  Student, 
"  the  heir,  which  in  the  laws  of  England  is  called  an  Execu- 
tor." 

Now  when  executors  thus  had  displaced  heirs  partially  in 
the  courts,  the  question  is  what  was  their  position  with  re- 
gard to  the  property  in  their  hands.  Presumably  it  was 
like  that  of  heirs  at  about  the  beginning  of  the  fourteenth 
century,  but  I  have  had  to  leave  that  somewhat  conjectural. 
The  first  mode  of  getting  at  an  answer  is  to  find  out,  if  we 
can,  what  was  the  form  of  judgment  against  them.  For  if 
the  judgment  ran  against  them  personally,  and  was  not  lim- 
ited to  the  goods  of  the  deceased  in  their  hands,  it  is  a  more 
than  probable  corollary  that  they  held  those  assets  in  their 
own  right.  The  best  evidence  known  to  me  is  a  case  of  the 
year  1292,  (21  Ed.  I.)  in  the  Rolls  of  Parliament.2  Mar- 
gery Moygne  recovered  two  judgments  against  Roger  Ber- 
telmeu  as  executor  of  William  the  goldsmith.  In  the  first 
case  he  admitted  the  debt  and  set  up  matter  in  discharge. 
This  was  found  against  him  except  as  to  £60,  as  to  which 
the  finding  was  in  his  favor,  and  the  judgment  went  against 
him  personally  for  the  residue.  In  the  second  case  the  claim 
was  for  200  marks,  of  which  the  plaintiff's  husband  had  en- 
dowed her  ad  ostium  ecclesice.  The  defendant  pleaded  that 
the  testator  did  not  leave  assets  sufficient  to  satisfy  his  credi- 
tors. The  plaintiff  replied  that  her  claim  was  preferred, 
which  the  defendant  denied.  The  custom  of  boroughs  was 
reported  by  four  burgesses  to  be  as  the  plaintiff  alleged,  and 
the  plaintiff  had  a  judgment  against  the  defendant  gener- 
ally. The  defendant  complained  of  these  judgments  in  Par- 
liament, and  assigned  as  error  that  there  came  to  his  hands 
only  £27  at  most,  and  that  the  two  judgments  amounted 
tc  £40  and  more.  The  matter  was  compromised  at  this  stage, 
but  enough  appears  for  my  purposes.  If  the  defendant  was 

1  Lyndwood,  Provinciate.  Lib.  3,  Tit.  13.  c.  5.  (Statutum  bonce  memo- 
rice),  note  at  word,  Intestatis.  Dr.  &  Stud.  Dial.  1,  c.  19. 

21  Rot.  Parl.  107,  108.  It  may  be  remarked,  by  the  way,  that  an 
excellent  example  of  trustee  process  will  be  found  in  this  case. 


740         IX.     WILLS,  DESCENT,  MARRIAGE 

right  in  his  contention,  it  would  follow  in  our  time  that  the 
judgment  should  be  de  bonis  testatoris,  yet  it  does  not  seem 
to  have  occurred  to- him  to  make  that  suggestion.  He  as- 
sumed, as  the  court  below  assumed,  that  the  judgment  was 
to  go  against  him  personally.  The  limitation  for  which  he 
contended  was  in  the  amount  of  the  judgment,  not  in  the 
fund  against  which  it  should  be  directed. 

There  is  some  other  evidence  that  at  this  time,  and  later, 
the  judgment  ran  against  the  executor  personally,  and  that 
the  only  limitation  of  liability  expressed  by  it  was  in  the 
amount.  In  the  first  case  known  to  me  in  which  executors 
were  defeated  on  a  plea  of  plene  administravit  it  was  decided 
that  the  plaintiff  should  recover  of  the  defendants  "  without 
having  regard  to  whether  they  had  to  the  value  of  the  de- 
mand." 1  Afterwards  it  was  settled  that  in  such  cases  the 
judgment  for  the  debt  should  be  of  the  goods  of  the  de- 
ceased, and  that  the  judgment  for  the  damages  should  be 
general.2  But  whether  the  first  case  was  right  in  its  day 
or  not,  the  material  point  is  the  way  in  which  the  question 
is  stated.  The  alternatives  are  not  a  judgment  de  bonis 
testatoris  and  a  general  judgment  against  the  defendants, 
but  a  judgment  against  the  defendants  limited  to  the  amount 
in  their  hands,  and  an  unlimited  judgment  against  them. 

But  if  it  be  assumed  that  a  trace  of  absolute  ownership 
still  was  shown  in  the  form  of  the  judgment,  when  we  come 
to  the  execution  we  find  a  distinction  between  the  goods  of 
the  testator  and  those  of  the  executor  already  established. 
In  12  Edward  III.  a  judgment  had  been  recovered  against 
a  parson,  who  had  died.  His  executors  were  summoned,  and 
did  not  appear.  Thereupon  the  plaintiff  had  fieri  facias  to 
levy  on  the  chattels  of  the  deceased  in  the  executors'  hands 
(de  lever  ses  chateux  qil  avoient  entre  mayns  des  biens  la 
mort),  and  on  the  sheriff  returning  that  he  had  taken  20s. 
and  that  there  were  no  more,  execution  was  granted  of  the 
goods  of  the  deceased  which  the  executors  had  in  their  hands 

*¥.  B.  17  Ed.  III.  66,  pi.  83. 

2Y.  B.  11  Hen.  IV.  5,  pi.  11.  Skrene  in  7  Hen.  IV.  12,  13,  pi.  8. 
Martin  in  9  Hen.  VI.  44,  pi.  26.  Danby  in  11  Hen.  VI.  7,  8  pi.  12. 
Dyer,  32  a,  pi.  2.  1  Roll.  Abr.  931,  D.  pi.  3.  1  Wms.  Saund.  336,  n.  10. 


73.     HOLMES:  EARLY  ENGLISH  EXECUTORS  741 

on  the  day  of  their  summons,  or  to  the  value  out  of  the  exec- 
utors' own  goods  if  the  former  had  been  eloigned.1 

I  now  pass  to  two  other  rules  of  law  for  each  of  which 
there  is  a  plausible  and  accepted  explanation,  but  which  I 
connect  with  each  other  and  with  my  theme.  In  former  days, 
I  was  surprised  to  read  in  Williams  on  Executors,  that  the 
property  in  the  ready  money  left  by  the  testator  "  must  of 
necessity  be  altered ;  for  when  it  is  intermixed  with  the  exec- 
utor's own  money,  it  is  incapable  of  being  distinguished  from 
it,  although  he  shall  be  accountable  for  its  value."  2  What 
right,  one  asked  oneself,  has  an  executor  to  deal  in  that  way 
with  trust  funds?  In  this  Commonwealth  at  least  the  exec- 
utor would  be  guilty  of  a  breach  of  duty  if  he  mingled  money 
of  his  testator  with  his  own.  Another  passage  in  Williams 
shows  that  we  must  not  press  his  meaning  too  far.  It  is 
stated  that  money  of  the  testator  which  can  be  distinguished 
does  not  pass  to  a  bankrupt  executor's  assignee.3  The  prin- 
cipal passage  merely  was  repeated  from  the  earlier  text- 
books of  Wentworth  and  Toller.  In  Wentworth  the  notion 
appears  to  be  stated  as  a  consequence  of  the  difficulty  of  dis- 
tinguishing pieces  of  money  of  the  same  denomination  from 
each  other,  —  a  most  impotent  reason.4  There  is  no  doubt 
that  similar  arguments  were  used  in  other  cases  of  a  later 
date  than  Wentworth.5  But  I  prefer  to  regard  the  rule  as 
a  survival,  especially  when  I  connect  it  with  that  next  to  be 
mentioned. 

As  late  as  Lord  Ellenborough's  time  it  was  the  unques- 
tioned doctrine  of  the  common  law  that  the  executor  was 
answerable  absolutely  for  goods  which  had  come  into  his 
possession,  and  that  he  was  not  excused  if  he  lost  them  with- 

*Y.  B.  13  Ed.  III.  398-401  (A.D.  1338),  ace.  2  Rot.  Parl.  397,  No.  110 
(Ed.  III.).  See  also  the  intimation  of  Wychingham,  J.,  in  40  Ed.  III. 
15,  pi.  1.  Fleta,  Lib.  2,  c.  57,  §  6. 

a  1  Wms.  Exors.  (7th  ed.)  646.  In  the  ninth  edition  this  is  qualified 
slightly  by  the  editor  in  a  note.  (9th  ed.)  566,  567  and  n.  (p). 

8  1  Wms.  Exors.  9th  ed.  559.  Howard  v.  Jemmett,  2  Burr.  1368,  1369, 
note;  Fan-  v.  Newman,  4  T.  R.  621,  648. 

*  Wentworth,  Executors  (14th  ed.  Philadelphia,  1832),  198. 

5Whitecomb  v.  Jacob,  1  Salk.  160;  Ford  v.  Hopkins,  1  Salk.  283,  284; 
Ryall  v.  Rolle,  1  Atk.  165,  172;  Scott  v.  Surman,  Willes,  400,  403,  404. 
Rightly  condemned  quoad  hoc  in  Re  Hallett's  Estate,  13  Ch.  D.  696, 
714,  715.  See  also  Miller  v.  Race,  1  Burr.  452,  457,  S.  C.  1  Sm.  L.  C. 


742         IX.     WILLS,  DESCENT,  MARRIAGE 

out  fault,  for  instance,  by  robbery.1  Now  it  is  possible  ta 
regard  this  as  merely  one  offshoot  of  the  early  liability  of 
bailees  which  still  lingered  alive,  although  the  main  root  had 
rotted  and  had  been  cut  a  century  before  by  Chief  Justice 
Pemberton,  and  by  the  mock  learning  of  Lord  Holt.2  It  is 
explained  in  that  way  by  Wentworth,3  who  wrote  before  the 
early  law  of  bailment  had  been  changed,  but  with  some  sug- 
gestions of  difference  and  mitigation.  If  this  explanation 
were  adopted  we  only  should  throw  the  discussion  a  little 
further  back,  upon  the  vexed  question  whether  possession 
was  title  in  primitive  law.  But  it  is  undeniable  that  down 
to  the  beginning  of  this  century  the  greatest  common-law 
judges  held  to  the  notion  that  the  executor's  liability  stood 
on  stronger  grounds  than  that  of  an  ordinary  bailee,  and  this 
notion  is  easiest  explained  as  an  echo  of  a  time  when  he  was 
owner  of  the  goods,  and  therefore  absolutely  accountable 
for  their  value.  In  the  Chancery,  the  forum  of  trusts,  it  is 
not  surprising  to  find  a  milder  rule  laid  down  at  an  earlier 
date,  and  no  doubt  the  doctrine  of  equity  now  has  supplanted 
that  of  the  common  law.4 

There  is  no  dispute,  of  course,  that  in  some  sense  executors 
and  administrators  have  the  property  in  the  goods  of  the 
deceased.5  I  take  it  as  evidence  how  hard  the  early  way  of 
thinking  died  that  as  late  as  1792,  the  King's  Bench  were 
divided  on  the  question  whether  a  sheriff  could  apply  the 
goods  of  a  testator  in  the  hands  of  his  executor  in  execution 
of  a  judgment  against  the  executor  in  his  own  right,  if  the 
sheriff  was  notified  after  seizure  that  the  goods  were  effects 
of  the  testator.  As  might  have  been  expected  the  judgment 
was  that  the  sheriff  had  not  the  right,  but  Mr.  Justice  Buller 
delivered  a  powerful  dissent.  6  A  little  earlier  the  same  court 
decided  that  a  sale  of  the  testator's  goods  in  execution  of 

1  Crosse  v.  Smith,  7  East,  246,  258. 

2  King  v.  Viscount  Hertford,  2  Shower,  172;  Coggs  v.  Bernard,  2  Ld. 
Raym.  909.    The  Common  Law,  Lect.  5,  esp.  p.  195.    Morley  v.  Morley, 
2  Cas.  in  Ch.  2. 

3  Executors  (14th  ed.),  234. 

4  Lord  Hardwicke  in  Jones  v.  Lewis,  2  Ves.  Sen.  240,  241    (1751); 
Job  v.  Job,  6  Ch.  D.  562;  Stevens  v.  Gage,  55  N.  H.  175.     See  Morley 
v.  Morley,  2  Cas.  in  Ch.  2  (1678). 

6  Com.  Dig.  Administration  (B.  10).     Cf.,  Wms.  Exors.  (9th  ed.)  558. 
6Farr  v.  Newman,  4  T.  R.  621. 


73.     HOLMES:  EARLY  ENGLISH  EXECUTORS  743 

such  a  judgment  passed  the  title,  and  Lord  Mansfield  laid 
it  down  as  clear  that  an  executor  might  alien  such  goods  to 
one  who  knew  them  to  be  assets  for  the  payment  of  debts, 
and  that  he  might  alien  them  for  a  debt  of  his  own.  He 
added,  "  If  the  debts  had  been  paid  the  goods  are  the  prop- 
erty of  the  executor." 

Another  singular  thing  is  the  form  of  an  executor's  right 
of  retainer.  "  If  an  executor  has  as  much  goods  in  his  hands 
as  his  own  debt  amounts  to,  the  property  of  those  goods  is 
altered  and  rests  in  himself;  that  is,  he  has  them  as  his  own 
proper  goods  in  satisfaction  of  his  debt,  and  not  as  exec- 
utor."2 This  proposition  is  qualified  by  Wentworth,  so  far 
as  to  require  an  election  where  the  goods  are  more  than  the 
debt.  3  But  the  right  is  clear,  and  if  not  exercised  by  the 
executor  in  his  lifetime  passes  to  his  executor.4  So  when  an 
executor  or  administrator  pays  a  debt  of  the  deceased  with 
his  own  money  he  may  appropriate  chattels  to  the  value  of 
the  debt.  5  A  right  to  take  money  would  not  have  seemed 
strange,  but  this  right  to  take  chattels  at  a  valuation  in  pais 
without  judgment  is  singular.  It  may  be  a  survival  of 
archaic  modes  of  satisfaction  when  money  was  scarce  and 
valuations  in  the  country  common.6  But  it  may  be  a  relic 
of  a  more  extensive  title. 

The  last  fact  to  be  considered  is  the  late  date  at  which 
equity  fully  carried  out  the  notion  that  executors  hold  the 
assets  in  trust.  In  1750,  in  a  case  where  one  Richard  Wat- 
kins  had  died,  leaving  his  property  to  his  nephew  and  nieces, 
Lord  Hardwicke,  speaking  of  a  subsequently  deceased 
nephew,  William  Watkins,  said  that  he  "  had  no  right  to 
any  specific  part  of  the  personal  estate  of  Richard  what- 

1  Whale  t>.  Booth,  4  Doug.  36,  46.  See  1  Wms.  Exors.  (9th  ed.)  561, 
note. 

8  Woodward  v.  Lord  Darcy,  Plowden,  184,  185. 

'Executors,  (14th  ed.)  77,  198,  199. 

*Hopton  v.  Dryden,  Free.  Ch.  179.  Wentw.  Exors.  (14th  ed.)  77, 
note,  citing  11  Vin.  Abr.  261,  263;  Croft  v.  Pyke,  3  P.  Wms.  179,  183; 
Burdet  v.  Pix,  2  Brownl.  50. 

6  Dyer,  2a.  Elliott  v.  Kemp,  7  M.  &  W.  306,  313. 

"See,  e.g.,  the  application  of  the  trusteed  wool  to  the  judgment  in 
1  Rot.  Parl.  108.  Assignment  of  dower  de  la  pluis  beale,  Litt.  §  49.  De- 
livery of  debtor's  chattels  by  sheriff,  St.  Westm.  II.  c.  18.  Kearns  v. 
Cunniff,  138  Mass.  434,  436. 


744         IX.     WILLS,  DESCENT,  MARRIAGE 

ever;  only  a  right  to  have  that  personal  estate  accounted 
for,  and  debts  and  legacies  paid  out  of  it,  and  so  much  as 
should  be  his  share  on  the  whole  account  paid  to  him ;  which 
is  only  a  debt,  or  in  the  nature  of  a  chose  in  action  due  to  the 
estate  of  William."  l  In  M'Leod  v.  Drummond  2  Lord  El- 
don  says  that  Lord  Hardwicke  "  frequently  considered  it  as 
doubtful,  whether  even  in  the  excepted  cases  any  one  except 
a  creditor,  or  a  specific  legatee,  could  follow  "  the  assets  in 
equity.  On  the  same  page,  Hill  v.  Simpson,  7  Ves.  15£ 
(1802),  is  said  to  have  been  the  first  case  which  gave  that 
right  to  a  general  pecuniary  legatee.3  Hill  v.  Simpson  lays, 
it  down  that  executors  in  equity  are  mere  trustees  for  the 
performance  of  the  will,4  but  it  adds  that  in  many  respects 
and  for  many  purposes  third  persons  are  entitled  to  consider 
them  absolute  owners.  Toward  the  end  of  the  last  century 
their  fiduciary  position  began  to  be  insisted  on  more  than 
had  been  the  case,  and  the  common-law  decisions  which  have 
been  cited  helped  this  tendency  of  the  Chancery.5 

The  final  step  taken  was  taken  in  M'Leod  v.  Drummond,* 
when  Lord  Eldon  established  the  rights  of  residuary  legatees. 
"  It  is  said  in  Farr  v.  Newman  that  the  residuary  legatee  is  to 
take  the  money,  when  made  up :  but  I  say,  he  has  in  a  sense  a 
lien  upon  the  fund,  as  it  is ;  and  may  come  here  for  the  spe- 
cific fund."  7 

1  Thome  v.  Watkins,  2  Ves.  Sen.  35,  36. 

a  17  Ves.  152,  169  (1810). 

"See  also  M'Leod  v.  Drummond,  14  Ves.  353,  354. 

4  P.  166.  Note  the  recurrence  with  a  difference  to  their  original  posi- 
tion in  the  early  Prankish  lay.  1  Law  Quart.  Rev.  164. 

B  See  also  Scott  v.  Tyler,  2  Dickens,  712,  725,  726. 

9 17  Ves.  152,  169. 

7  See  Marvel  v.  Babbitt,  143  Mass.  226;  Pierce  v.  Gould,  143  Mass. 
234,  235;  Mechanics'  Savings  Bank  v.  Waite,  150  Mass.  234,  235. 

I  made  the  decree  appealed  from  in  Foster  v.  Bailey,  157  Mass.  160, 
162.  The  particular  form  which  it  took,  allowing  the  defendant,  the  ad- 
ministrator of  an  administrator,  to  retain  one  share  of  stock  and  a 
savings-bank  book  as  security  for  what  might  be  found  due  to  his  intes- 
tate on  the  settlement  of  his  account,  and  directing  him  to  hand  over  the 
rest  of  the  assets,  was  consented  to,  in  case  the  defendant  had  a  right  to 
retain  anything.  I  made  the  decree  on  the  assumption  that  the  change 
in  the  position  of  executor  and  administrator  which  I  am  considering 
left  their  rights  undisturbed.  Of  course  if  the  liability  were  only  to  ac- 
count for  a  balance,  the  executor  of  an  executor  would  not  be  bound  to 
hand  over  anything  more,  and  could  not  be  compelled  to  pay  anything 
until  the  balance  was  settled.  His  duty,  when  established,  would  not  be 


78.    HOLMES:  EARLY  ENGLISH  EXECUTORS  745 


to  deliver  specific  property,  but  to  pay  a  sum  of  money.  I  do  not  know 
what  evidence  can  be  found  on  this  point.  It  is  fair  to  mention  that  the 
plea  offered  in  30  Ed.  I.  240,  by  executors  of  executors,  was  that,  "  We 
held  none  of  the  goods  of  the  deceased  on  the  day  when  this  bill  was  de- 
livered." But  that  may  be  no  more  than  a  general  form.  "Bonz" 
probably  only  meant  property. 


74.     THE  EXECUTOR  IN  ENGLAND  AND  ON  THE 
CONTINENT  l 

BY  ROBERT  CAILLEMER  2 

THE  European  systems  of  legislation  present  to-day  many 
differences  in  the  matter  of  testamentary  executorship ; 
yet  during  the  Middle  Ages  this  institution  offered  through- 
out Christian  Europe  nearly  the  same  aspect.  The  point  of 
departure  has  been  one,  though  the  paths  have  diverged 
widely.  In  Italy,  France,  Spain,  England  and  Germany  the 
testamentary  executorship  played  during  the  Mediaeval  epoch 
a  pretty  uniform  part ;  its  legal  structure  reveals  every- 
where the  same  legal  traits.  Born  of  the  same  creeds,  it 
assumed  everywhere  the  same  forms. 

The  part  it  has  played  is  considerable.  The  testamentary 
executor  has  been  the  intermediary  of  numberless  pious  gifts ; 
the  cartularies  of  the  convents  are  full  of  acts  drawn  up  by 
executors  for  the  good  of  the  souls  of  the  deceased.  We 

1  This  Essay  consists  of  extracts  from  a  treatise  entitled  "  Origines  et 
developpement  de  1'execution  testamentaire ;  epoque  franque  et  moyen 
dge"  (Lyon,  Rey;  1901).  In  extracting  the  parts  needed  to  give  some 
continuity  in  the  account  of  English  law,  some  transposition  was  neces- 
sary. The  pages  of  the  original,  at  the  beginning  of  the  respective  pas- 
sages, are  shown  in  a  bracketed  footnote;  they  are  chiefly  pp.  3,  682,  679, 
95,  406,  453,  503.  The  author  has  revised  and  added  to  these  passages 
for  the  purpose  of  this  Collection. 

The  translation  is  by  Mr.  ERXST  FREUND,  of  the  Editorial  Committee. 

'Professor  of  the  History  of  French  Law,  in  the  University  of  Gre- 
noble, France,  since  1906.  Graduate  of  the  University  of  Lyon,  Faculty 
of  Law;  chargt  de  cours  in  French  legal  history,  at  the  same,  1901-1903; 
agrege  in  legal  history  at  the  University  of  Aix-en-Provence,  1903-1906. 

Other  Publications:  Administration  et  confiscation  des  successions 
par  les  pouvoirs  publics  au  moyen  age,  1901 ;  Le  mercantilisme  liberal 
la  fin  du  XVIIe  siecle:  les  idees  economiques  et  politiques  de  M.  d< 
Belesbat  (with  A.  Schatz),  1907;  and  numerous  articles  in  periodic*" 
chiefly  on  the  history  of  family  law  and  succession  law. 


74.     CAILLEMER:    EXECUTOR  747 

cannot  realize  to-day  the  social  importance  of  the  functions 
of  these  almoners.  It  is  due  to  them  and  to  the  bounty  they 
are  going  to  bestow  upon  the  convent  by  the  request  of  the 
deceased,  that  the  body  of  the  latter  is  allowed  to  receive  an 
honorable  burial  in  consecrated  ground;  due  to  them  that 
the  soul  of  the  dead  can  be  happy  in  the  other  world;  for 
alms  redeem  sin.  Happy  he  who  has  left  behind  him  an  al- 
moner to  watch  over  his  soul,  and  make  gifts  pro  anima. 

This  is  not  all.  Beside  the  religious  part,  the  testamen- 
tary executor  played  after  the  12th  century  another  which 
is  essential  in  the  law  of  succession.  He  is  the  liquidator 
of  the  estate  of  the  deceased.  He  receives  his  assets,  goods 
and  demands ;  to  him  also  pass  the  debts.  To  third  parties 
he  continues  the  person  of  the  deceased,  like  the  heir  of  the 
Roman  law.  He  must  settle  and  adjust  the  varied  interests 
arising  in  connection  with  the  succession;  he  interprets  the 
will ;  he  allays  controversies ;  he  delivers  the  bequests  to  the 
legatees,  and  if  after  the  settlement  of  the  estate,  something 
is  left  over,  he  disposes  of  it  in  his  discretion  as  he  may  judge 
most  beneficial  for  the  soul  of  the  deceased.  Often  the  testa- 
tor has  given  only  the  briefest  hints,  relying  upon  the  exec- 
utor for  the  disposal  of  the  surplus. 

1  By  a  remarkable  coincidence,  the  institution  developed  at 
the  same  time  and  assumed  a  great  importance  in  two  other 
legal  systems,  the  Byzantine  and  the  Mahometan.  The 
testamentary  executorship  which  appears  in  its  germs  in 
the  law  of  Justinian,  grows  in  strength  in  the  Byzantine 
law  of  the  9th  and  10th  centuries.  The  e-Trn-jOOTro?  resembles 
in  many  points  the  executor  of  the  Western  law:  he  too 
temporarily  continues  the  person  of  the  deceased,  he  too  is 
placed  under  the  close  supervision  of  the  public  authorities, 
lay  and  religious,  which  can  remove  him  and  appoint  in  his 
stead  an  official  administrator. 

Perhaps  under  the  influence  of  the  Byzantine  law,  but 
with  very  original  peculiarities,  the  testamentary  executor- 
ship  had  also  come  to  hold  a  place  of  great  importance  in 
the  Mahometan  system  of  succession.  Of  considerable  con- 
sequence in  the  Shafite  and  Shiite  laws,  it  attains  its  maxi- 

1  [P.  682.] 


748         IX.     WILLS,  DESCENT,  MARRIAGE 

mum  development  in  the  Hanefite  law.  An  authority  of  the 
12th  century  of  our  era,  the  Hedaya,  gives  us  precise  and 
detailed  information  concerning  it,  and  we  are  somewhat  sur- 
prised to  meet  with  rules  mentioned  by  Beaumanoir,  and  with 
principles  established  by  English  custom.1  Here  too  the  ex- 
ecutor appears  as  continuing  temporarily  the  person  of  the 
deceased,  as  his  active  and  passive  representative.  Moreover, 
in  the  Musulman  law,  as  in  the  law  of  Southern  France  and 
of  the  German  cities,  the  testamentary  executor  performs 
important  functions  in  the  guardianship  of  the  minor  chil- 
dren of  the  deceased.  Finally  like  the  Roman-German  and 
the  Byzantine  law,  so  the  law  of  Islam  knows  an  ex-officio 
executor  of  testaments,  the  judge,  who  can  name  official  ad- 
ministrators, in  case  the  executors  chosen  by  the  testator  do 
not  perform  their  functions  or  happen  to  die. 

The  testamentary  executorship  thus  played  in  the  Mid- 
dle Ages  an  essential  part  in  the  legal  life  of  the  civilized 
world.  A  complete  history  of  testamentary  executorship 
during  the  Middle  Ages  ought  not  merely  to  set  forth  the 
development  of  the  institution  in  parts  of  the  world  appar- 
ently so  dissimilar,  but  should  also  suggest  the  reasons  which 
have  given  rise  to  it  everywhere  at  the  same  time,  and  explain 
the  striking  resemblances  which  it  presents  under  different 
conditions.  Perhaps  the  cause  of  this  parallel  movement 
may  be  found  in  the  universal  spread  of  the  idea  of  charity 
in  the  Frankish  epoch  and  at  the  beginning  of  the  Middle 
Ages,  in  the  impulse  then  given  to  the  relief  of  the  poor,  to 
pious  gifts,  and  eleemosynary  foundations.  The  world  of 
Islam  and  the  world  of  Christianity  share  in  this  move- 
ment. The  Christian  wants  his  goods  distributed  to  the  poor 
and  to  monasteries,  the  Musulman  desires  that  his  fortune 
may  serve  to  organize  pilgrimages  to  Mecca  or  establish 
philanthropic  works.  Both  have  taken  upon  themselves  the 
duty  of  charity  during  life,  and  they  do  not  want  its  accom- 
plishment put  an  end  to  by  their  death.  Their  care  is  to  find 
for  the  continuation  of  the  task  some  person  other  than  the 

1  Hedaya,  LIT,  7:  the  executor  having  accepted  his  office  is  denmtelj 
bound  to  perform  the  will;   the  rights  of  the  deceased  executor  pass 
his  own  executors. 


74-     CAILLEMER:    EXECUTOR  749 

heroes  institutus  of  the  Roman  law,  a  person  who  however 
like  the  heir  will  succeed  to  the  rights  and  actions  of  the 
deceased,  who  will  collect  his  goods  and  claims,  to  whom  the 
estate  of  the  deceased  will  not  pass  as  to  an  heir  or  legatee, 
but  who  will  deal  with  it  as  a  master,  so  that  it  shall  not 
become  res  nullius. 

1  There  is  no  indication  of  such  an  institution  in  the  cus- 
toms from  which  the  law  of  the  Frankish  period  sprang. 
Neither  in  the  Roman  law  of  the  lower  Empire,  nor  in  the 
usages  which  ruled  the  Teutonic  nations,  are  there  testa- 
mentary executors.  But  the  study  of  these  customs  reveals 
certain  elements,  the  combination  of  which  contains  the  germ 
of  the  institution. 

In  the  8th  century,  the  executorship  is  found  everywhere 
on  the  continent,  and  from  that  time  we  can  trace  its  history 
easily.  In  the  first  centuries  of  the  Middle  Ages,  this  history 
is  independent  of  that  of  the  testament.  The  latter  is  un- 
known in  Germany,  and  in  the  greater  portion  of  France 
has  disappeared  under  the  influence  of  Germanic  ideas,  which 
are  hostile  to  acts  mortis  causa,  and  require  for  the  transfer 
of  rights  public  acts  mter  vivos  showing  a  surrender  of  seisin 
on  the  part  of  the  alienor.  The  testament  proper,  as  an 
unilateral  and  revocable  act,  is  found  hardly  anywhere  ex- 
cept in  Languedoc  and  Italy.  Everywhere  else  the  executor 
is  appointed  by  an  act  of  delivery :  the  grantor  transfers  by 
act  inter  vivos  a  specific  portion  of  his  property  (usually 
land)  to  the  executor  (eleemosynarius,  wadiator),  charging 
him  to  transfer  in  his  turn  upon  his  death  the  property  to 
some  other  person  or  to  the  Church. 

In  the  12th  century,  under  the  influence  of  different  causes, 
especially  of  the  revival  of  the  Roman  law,  the  testament 
reappears  throughout  Occidental  Europe,  and  the  old  exec- 
utorship gains  entrance  into  this  new  institution.  From  now 
on  the  executor  is  appointed  by  a  will,  and  carries  out  its 
dispositions.  At  the  same  time  the  Canon  law  develops  a 
system  of  supervision  by  public  authority  over  the  carrying 
out  of  wills.  This  is  the  era  in  which  the  executorship  attains 
its  highest  development.  And  it  is  precisely  the  time  when 

1  [P.  679.] 


s 
i 


750         IX.      WILLS,  DESCENT,  MARRIAGE 

the  executorship,  together  with  the  will,  makes  its  appearance 
and  becomes  organized  in  the  English  law. 

In  the  last  centuries  of  the  Middle  Ages,  finally,  the  insti- 
tution enters  upon  a  crisis,  due  to  the  renascence  of  the 
Roman  law  and  its  influence  upon  the  customs.  The  Roman- 
ists revive  the  institutio  heredis,  and  since  the  13th  century, 
in  Italy  and  in  Southern  France,  the  heir  gradually  resumes 
the  first  place  in  the  testamentary  succession.  Every  advance 
of  the  heirship  marks  a  step  backward  of  the  executorship. 
The  executor  ceases  to  be  a  channel  of  devolution ;  he  loses 
all  title  to  the  goods  of  the  deceased;  he  becomes  a  simple 
supervisor  of  the  heir. 

In  Northern  France  the  crisis  came  with  less  rapidity 
and  intensity.  During  the  entire  Middle  Ages,  the  exec- 
utor's seisin  remained  almost  intact,  exclusive  of  the  seisin 
of  the  heir;  the  executor  remains,  down  to  the  16th  cen- 
tury, the  active  and  passive  representative  of  the  person 
of  the  deceased.  True,  since  the  13th  century  the  premoni- 
tions of  decay  are  discernible  in  the  possibility  that  the  heir 
may  under  certain  conditions  exclude  the  executor  from  the 
seisin  of  the  goods  of  the  succession,  in  the  increasing  limita- 
tions upon  the  extent  and  duration  of  the  executor's  seisin, 
in  the  appearance  of  residuary  legatees  distinct  from  the 
executors.  But  only  since  the  codification  of  the  customary 
law,  especially  in  the  17th  and  18th  centuries,  does  this  decay 
become  pronounced,  owing  to  the  progress  of  the  universal 
(legs  universe!)  and  the  attacks  of  the  Romanists.  In  the 
Civil  Code  of  1804,  the  executor  has  no  real  power;  he 
is  no  longer  the  representative  of  the  deceased,  and  his 
rights  do  not  materially  limit  the  right  or  the  seisin  of  the 
heirs. 

In  Germany,  the  same  crisis  occurred  only  after  the  recep- 
tion of  the  Roman  law ;  until  that  time  the  executor  retains 
his  entire  autonomy.  But,  since  the  16th  century,  the  Ro- 
manists and  writers  of  the  German  common  law,  in  order  to 
define  the  position  of  the  executor,  put  forward  various  theo- 
ries, all  tending  to  narrow  his  functions:  some  consider  him 
as  a  mere  agent  of  the  heir.  The  first  draft  of  the  German 
civil  code  confirmed  this  effacement,  and  it  required  the  ef- 


74.     CAILLEMER:    EXECUTOR  751 

forts  of  the  Germanic  jurists  to  restore  him  to  a  portion  of 
his  ancient  dignity. 

In  England  the  crisis  came  likewise,  but  it  took  another 
direction.  It  resulted  in  the  aggrandizement  of  the  powers 
of  the  executor:  he  assumes  in  the  English  law  of  succession 
a  preponderance  which  the  ends  of  the  institution  by  no 
means  required.  In  the  13th  and  14th  centuries  the  English 
executor  had  only  limited  powers  and  was  the  object  of  active 
supervision.  In  the  16th  century  he  has  become  the  almost 
uncontrolled  master  of  the  succession  to  the  personalty,  he 
pays  himself  in  preference  to  other  creditors,  his  debt  to  the 
deceased  becomes  extinguished,  he  retains  the  residue  of  the 
estate,  the  concurrent  rights  of  widow  and  children  of  the 
testator  to  parts  of  the  personal  property  have  disappeared. 
The  executor  becomes  like  an  appointed  heir,  or  rather,  in 
numerous  points,  he  has  more  rights  than  an  heir.  Only  in 
comparatively  recent  times  has  there  been  a  reversion  to  a 
more  appropriate  measure  of  powers,  and  the  most  exorbi- 
tant of  the  powers,  the  right  to  retain  the  residue,  has  dis- 
appeared. 

1  As  we  have  seen  above,  the  history  of  testamentary  exec- 
utorship  begins  in  England  only  with  the  12th  century.  In 
the  law  of  the  Anglo  Saxon  period,  the  right  to  dispose  by 
a  last  will  had  been  a  privilege  reserved  to  certain  preferred 
persons,  in  derogation  of  the  common  law.  It  had  been 
necessary  to  surround  this  testament  with  special  guaran- 
ties. Hence  the  nomination  of  a  guardian  (mund)  of  the 
will  (cwide).  The  intervention  of  a  great  person  in  the  exe- 
cution of  a  will  might,  to  be  sure,  have  more  special  objects 
than  mere  general  protection;  it  might  for  instance  be  a 
means  of  bringing  about  a  testamentary  disposition  of  Folk- 
land,  not  specially  granted  by  charter,  and  hence  subject  to 
the  common  law  of  Germanic  custom  excluding  wills.  But 
even  where  the  will  disposes  of  Bocland,  the  charter  of  which 
gives  the  owner  the  right  to  leave  it  by  will  to  a  successor 
of  his  own  choice,  the  testator  will  endeavor  to  obtain  for 
his  will  the  consent  and  protection  of  the  King,  for  which 
purpose  we  find  in  some  documents  a  gift  to  the  King  of 

1  [P.  95.1 


752         IX.     WILLS,  DESCENT,  MARRIAGE 

the  heriot.  The  mund  is  very  different  from  the  testamen- 
tary executor  as  we  shall  find  him  later  on  in  the  English 
law,  and  if  we  want  to  find  some  analogous  institution  on 
the  Continent,  we  must  think,  not  of  executors,  but  of  the 
adjutores  •  and  the  defensores,  who  in  the  charters  of  the 
Middle  Ages,  guarantee  and  protect  legal  acts. 

After  the  Norman  Conquest  the  cwide  disappeared,  and 
with  it  the  mund  charged  with  its  protection.  When  sub- 
sequently the  testament  developed  in  England,  it  presented, 
like  the  continental  testament,  executors  to  carry  out  its 
provisions.  In  order  to  trace  the  development  of  the  institu- 
tion in  the  English  law,  we  shall  study  the  growth  of  the 
following  three  rules,  which  characterize  the  position  of  the 
testamentary  executor  in  the  common  law,  and  which  have 
appeared  successively  in  the  order  named :  first,  the  executor 
receives  the  chattels  of  the  testator ;  second,  he  is  the  repre- 
sentative of  the  testator,  both  for  claims  and  liabilities; 
third,  he  has  a  right  to  the  residue. 

1  I.  In  England,  during  the  Middle  Ages,  the  seisin  of 
the  executors  never  embraced,  as  it  did  on  the  Continent,  the 
entirety  of  the  succession.  One  domain  eluded  them:  that 
which  was  afterward  called  real  property.  The  executors 
had  their  rights  limited  to  personal  property.  At  the  very 
period  when  in  England  during  the  12th  century  the  testa- 
ment developed,  the  English  customs  became  strongly  at- 
tached to  the  principle  that  no  one  can  alien  an  immovable 
without  entirely  divesting  himself  of  it  during  his  lifetime, 
and  they  even  required  for  the  validity  of  gifts  of  immov- 
ables that  the  donor  should  be  in  sound  bodily  condition. 
This  virtually  amounted  to  a  prohibition  of  testamentary 
disposition  of  immovables.  Consequently  the  sphere  of  ac- 
tion of  testamentary  executors  became  restricted  to  mov- 
ables. 2 

1  [P.  406.] 

2  This  restriction  was  not  absolute.    Certain  species  of  property,  such 
as  houses  in  cities,  were  assimilated  to  chattels,  and  regarded  as  devis- 
able;  they  could  therefore  pass  under  the  seisin  of  the  executor.    Brae- 
ton  (ed.  Travers  Twiss)  VI,  24,  says  that  these  houses  are  quasi  catalla. 
But  the  executor  very  soon  loses  their  seisin.     In  the  15th  century  the 
legatees  of  these  houses  may  take  possession  of  them  without  requiring 
the    assent   of   the   executors;     and   even   where   the   testament    directs 
the  executors  to  sell  such  property  and  to  distribute  the  proceeds,  the 


74.     CAILLEMER:    EXECUTOR  753 

On  the  other  hand,  the  executor  became  exclusively  en- 
titled to  chattels :  excluded  from  real  property,  he  in  his 
turn  excluded  any  share  of  the  heir  in  the  personal  prop- 
erty. This  produced  a  complete  separation  within  the  Eng- 
lish law ;  real  and  personal  property  became  two  independent 
spheres  of  law.  After  the  Norman  Conquest,  the  Eng- 
lish system  of  succession  took  for  its  foundation  the  strict 
application  of  the  parentelic  system,  with  primogeniture  and 
preference  of  males.  This  system  was  inapplicable  to  mov- 
ables; and  thus,  as  to  them,  the  testamentary  executorship 
had  a  chance  to  develop  itself. 

It  is  certain  that  this  system  of  devolution  of  personal 
property  did  not  spring  into  existence  ready  made.  On  the 
contrary,  we  have  positive  evidence  of  the  end  of  the  12th 
century  to  the  effect  that  at  first  the  catalla,  like  the  immov- 
ables, passed  to  the  heir ;  and  that  the  heir,  with  the  catalla, 
paid  the  debts  and  performed  the  last  will.  This  fact  is 
clearly  indicated  in  1176  in  the  assize  of  Northampton.1 
In  the  course  of  the  13th  century,  a  modification  took  place. 
Gradually  the  heir  ceased  to  meddle  with  the  catalla,  which 
became  the  exclusive  domain  of  the  executor.  In  1215,  the 
Petition  of  the  Barons  to  King  John,  article  15,  and  the 
Great  Charter,  article  26,  decide  that  the  catallum  of  the 
deceased,  shall  be  left  to  his  executors,  as  soon  as  the  debt 
due  to  the  king,  is  paid,  and  we  find  the  same  rule  in  a  great 
number1  of  later  texts,  in  the  Great  Charter  of  Henry  III, 
article  18,  in  Bracton,  and  above  all  in  the  numerous  docu- 
ments of  the  rolls  of  Gascony  relative  to  England  from  1242 
to  1254.  The  king  commands  his  officers  not  to  disturb  the 
executors  in  the  possession  and  administration  of  the  catalla, 
and  to  cause  to  be  restored  to  them  such  as  may  have  been 
taken  from  them.2 

seisin  belongs,  not  to  the  executors  but  to  the  heirs  at  law.  Littleton* 
167,  169.  —  On  the  other  hand,  the  executors  have  always  had  the  seisin 
of  chattels  real,  rights  in  lands  of  fixed  duration,  and  hence  not  included 
in  the  term  real  property:  terra  of  years,  wardship  in  chivalry,  and  the 
right  of  mortgage,  when  it  is  created,  not  by  a  feoffment,  but  by  a 
lease  for  years.  Vice  versa,  heirlooms,  though  movable,  go  to  the  heir. 

*§  4:  "Si  quis  obierit  francus-tenens,  haeredes  ipsius  .  .  .  catalla 
sua  habeant,  unde  faciant  divisam  defuncti." 

2  Michel,  R61es  gascons,  I  Nos.  109,  347,  367,  671,  1458,  1463,  1557, 
1820,  2750,  3204,  3487. 


754         IX.     WILLS,  DESCENT,  MARRIAGE 

The  statement  that  the  entire  personal  property  soon  came 
to  fall  into  the  hands  of  the  executor  is  liable  to  be  questioned 
on  the  ground  that  numerous  documents  of  the  13th  and 
14th  centuries  show  that  the  testator  cannot  dispose  freely 
of  all  his  movables.  If  he  leaves  both  wife  and  children,  he 
may  dispose  only  of  a  third ;  if  only  a  wife,  or  only  children, 
then  of  one  half  of  the  catalla.1  Must  we  then  not  say  that 
the  executor  is  seised  only  of  a  third  or  one  half  of  the  mov- 
ables, of  the  dead's  part? 

The  documents  which  inform  us  concerning  this  tripartite 
division  of  the  decedent's  movables  show  at  the  same  time 
that  all  movables  are  delivered  to  the  executors.  Thus  in 
Bracton  the  two  rules  are  stated  side  by  side,  and  the  rolls 
of  Gascony  always  mention  the  delivery  to  the  executors  of 
all  bona  and  catalla.  These  two  rules,  while  apparently  in 
conflict,  are  not  so  in  reality.  The  personal  property  is 
handed  over  entirely  to  the  executor;  but  he  can  perform 
the  will  of  the  deceased  only  with  regard  to  the  third  or  the 
half  of  the  goods ;  he  must  return  the  other  parts  to  the 
widow  or  children.  So  the  Year  Books  show  the  widow  and 
the  children  of  the  testator  suing  the  executor  to  recover 
their  parts.  The  doctrine  of  the  pars  rationabilis  therefore 
does  not  limit  the  extent  of  the  executor's  seisin,  but  merely 
his  power  of  disposition.  Strange  to  say,  this  relation  be- 
tween the  executor's  seisin  and  the  widow's  and  children's 
rights  is  not  peculiar  to  England ;  we  find  it  clearly  in  an- 
other country  in  which  the  tripartite  division  of  the  testa- 
tor's goods  has  been  developed,  to  wit,  in  Catalonia:  the 
executors  there  are  seised  of  the  entirety  of  the  movables,  but 
have  to  give  one  third  to  the  widow,  one  third  to  the  children, 
and  distribute  the  residue  according  to  the  will  of  the  testa- 
tor. Moreover,  we  shall  see  presently  that  this  right  of  the 
widow  and  children  to  the  chattels  has  gradually  disappeared. 

Thus,  as  early  as  the  13th  century,  the  executors  have 
become  the  successors  of  the  testator  for  the  chattels,  just 
as  the  heir  receives  the  real  property.  They  are  in  fact 

1  As  Brunner  has  shown  (Zeitschrift  der  Savigny  Stiftung,  Germ.  Abt. 
1898,  p.  107  seqq.),  this  division  of  the  succession  into  two  or  three  parts 
is  a  widespread  institution  in  the  customs  of  the  middle  ages. 


U-     CAILLEMER:    EXECUTOR  755 

temporary  owners  of  the  chattels.  The  legatees,  for  the 
time  being  have  only  an  imperfect  and  inchoate  right  to  the 
legacy,  and  their  right  becomes  perfect  only  through  the 
assent  of  the  executor.  As  long  as  this  assent  has  not  been 
given,  the  executor  is  sole  master  of  the  chattels;  he  alone 
can  validly  dispose  of  them.  While  many  customs  of  the  Con- 
tinent limit  the  executor's  seisin  to  one  year,  the  English 
common  law  provides,  on  the  contrary,  that  during  the  first 
year  the  legatees  cannot  sue  the  executor  to  compel  him  to 
deliver  the  chattels. 

This  right  of  the  executor  to  the  chattels  springs  directly 
from  the  testament.  It  does  not  seem  that  the  English  law 
ever  required  a  traditio  inter  vivos  of  the  catalla,  and  the  in- 
stances that  can  be  adduced  of  such  a  delivery  inter  vivos 
are  very  rare.  As  early  as  the  year  1100,  the  charter  of 
Henry  I  (article  7)  admits  that  simple  words  spoken  on  the 
deathbed  can  have  the  effect  of  passing  the  pecunia;  a  will 
without  delivery  may  therefore  give  to  the  executors  a  right 
to  the  movables.1 

The  right  of  the  executor,  like  every  other  right  to  per- 
sonal property,  is  transmissible  to  his  own  representatives, 
to  his  executors.2  The  requirement  of  words  of  inheritance 
to  make  property  descendible  to  the  successors  of  the  donee, 
applies  to  real  property  only.  However,  when  there  are 
several  executors,  and  one  of  them  dies,  his  right  passes,  not 
to  his  own  representatives,  but  to  the  other  executors.  This 
is  no  exception  to  the  principle  of  transmissibility,  but 
simply  means,  that,  the  executors  being  joint  tenants,  the 
rules  of  joint  tenancy  are  applied  to  them;  the  survivor 
takes  all  the  rights  of  the  predeceased,  and  transmits  them 

1  It  might  happen  that  the  testator  wanted  to  confer  upon  his  execu- 
tors a  right  to  his  immovables:  for  this  purpose,  a  transfer  inter  vivos 
was  required,  a  feoffment  of  the  immovables  to  the  executors;  and  we 
have  here  one  of  the  oldest  and  most  remarkable  application  of  uses, 
strongly  reminding  of  the  old  form  of  executorship  on  the  Continent 
(See  Holmes,  vol.  II.,  of  these  Essays,  No.  41).     But  these  are  in  our 
opinion  very  different  things.     From  the  13th  Century  on,  the  English 
law  separates  sharply  the  feoffee  to  uses,  whose  right  relates  to  real 
property  and  arises  from  a  feoffment,  from  the  executor,  whose  right 
relates  to  personal  property  and  arises  from  a  will,  the  two  capacities 
remain  distinct,  even  while  united  in  the  same  person. 

2  St.  25  Ed.  Ill  c.  5. 


756         IX.     WILLS,  DESCENT,  MARRIAGE 

to  his  own  representatives.  From  this  results  a  chain  of 
representation,  a  chain  of  executorship,  which  closes  only 
when  the  last  executor  dies  intestate.1 

2  II.  The  representation  of  the  deceased  by  the  executor  de- 
veloped in  England  later  than  on  the  Continent.  Only  since 
the  12th  century  is  the  testamentary  executorship  known  to 
the  English  customs,  only  from  the  13th  century  on  did  the 
representation  of  the  testator  by  his  executors  gradually 
establish  itself.  Certain  obstacles  stood  in  the  way  of  the 
transfer  of  the  claims  and  debts  of  the  deceased  to  the  exec- 
utor. 

In  the  first  place,  any  assignment  of  a  claim  by  the  testator 
to  the  executor  was  almost  impracticable.  Obligations  to 
the  bearer,  the  use  of  which  had  in  Italy  rendered  the  transfer 
of  claims  from  the  testator  to  the  executor  possible,  were 
Almost  unknown  in  England  at  the  beginning  of  the  13th 
Century. 3  Again,  representation  in  court  by  an  attorney  is 
admitted,  at  the  same  period,  in  exceptional  cases  only.4 
In  Glanvil's  time,  it  is  permitted,  on  principle,  only  in  the 
Curia  Regis ;  outside  of  that,  the  person  who  desires  himself 
to  be  represented  must  produce  a  royal  writ  stating  that  the 
attornatlo  took  place  coram  rege  vel  justitiis  suis.  More- 
over the  attornat'io,  where  it  is  permitted,  is  terminated  by  the 
death  of  the  person  represented.  Hence  it  was  impossible  to 
make  the  English  executor  either  an  assignee  of  a  claim  or 
an  attorney. 

Moreover,  after  the  English  law,  in  consequence  of  a  con- 
cession which  will  be  traced  presently,  has  permitted  the 
claims  of  the  deceased  to  pass  to  the  executor,  it  emphasizes 
in  a  striking  manner  the  difference  between  a  testamentary 
executor  and  an  attorney.  When  the  testator  in  his  life- 
time appoints  an  attorney,  the  attorney's  powers  are  revoked 
by  the  death  of  the  principal,  and  in  order  that  the  attorney 
may  after  the  death  of  the  principal  retain  the  benefit  of 

1  Blackstone  II  c.  25,  32.     Cf.  Littleton  280,  281.     The  administrator 
of  an  executor  dying  intestate  does  not  succeed  to  his  office. 

2  [P.  453.] 

8  [See  Essay  No.  50,  in  this  Volume,  "  The  Early  History  of  Nego- 
tiable Instruments."  —  EDS.] 

4  [See  Professor  Brunner's  article,  "  The  Early  History  of  the  Attor- 
ney in  English  Law,"  Illinois  Law  Review,  1908,  III,  257.  —  EDS.] 


74.     CAILLEMER:    EXECUTOR  757 

the  assignments  and  prosecute  the  debtor,  he  must  apply  to 
the  executors,  to  whom  the  law  has  transferred  the  claim. 

As  for  the  payment  of  his  debts,  the  testator  may  un- 
doubtedly charge  his  executor  therewith,  but  we  know  how 
imperfect  this  arrangement  is,  since  it  does  not  exclude  the 
personal  liability  of  the  heir.  At  the  end  of  the  12th  cen- 
tury, it  is  still  the  heir  who  succeeds  alone  to  the  claims  and 
debts  of  the  testator,  just  as  he  receives  the  cat  alia.  Such 
is  the  law  as  laid  down  by  the  Dialogus  de  Scaccario  (II, 
18),  about  1177 — 1179,  and,  ten  years  later,  by  the  treatise 
attributed  to  Glanvil  (VII,  5). 

A  rapid  development  altered  this  condition  completely. 
Since  the  debts  become  a  charge  on  the  chattels,  and  the 
entirety  of  the  chattels  must  be  handed  over  to  the  executors, 
why  not  give  to  the  executors  directly  the  duty  of  paying 
the  debts?  Why  not,  on  the  other  hand,  concede  to  them 
directly  the  recovery  of  claims,  since  the  amount  recovered 
will  come  to  them  ultimately?  The  active  and  passive  repre- 
sentation of  the  deceased  by  the  executor  was  thus  the  neces- 
sary consequence  of  his  having  become  the  sole  successor  to 
the  catalla  of  the  deceased.  But  this  representation  did  not 
come  about  all  at  once:  admitted  by  the  ecclesiastical  courts 
at  first  to  a  limited  degree,  then  somewhat  more  liberally, 
it  was  finally,  at  the  end  of  the  13th  century,  fully  estab- 
lished by  the  royal  justices. 

Bracton's  Notebook  reveals  to  us  the  first  stage  of  this 
evolution. 

On  principle,  the  payment  of  the  debts  still  devolves  upon 
the  heir,  and  the  creditors  of  the  deceased  sue  him  in  the  lay 
courts  (n°  1543,  1693).  But  as  early  as  1219  an  heir 
demands  a  continuance  in  order  to  ascertain  whether  the 
deceased  has  not  in  his  will  mentioned  the  debt  sued  for; 
for  in  that  event  it  ought  to  be  paid,  not  by  him,  the  heir, 
but  by  the  executors  (n°  52).  Again,  in  1222,  the  exec- 
utors are  sued  in  a  court  Christian,  and  the  action  against 
them  encounters  a  writ  of  prohibition,  because  the  debt  is 
not  mentioned  in  the  will  (n°  162).  It  appears  from  these 
two  decisions  that  debts  named  in  the  will  are  payable  by 
the  executors  and  not  by  the  heirs. 


758         IX.      WILLS,  DESCENT,  MARRIAGE 

As  for  the  recovery  of  claims,  it  is  again  the  heir  who  on 
principle  represents  the  deceased.  Twice,  in  1231  and  1233, 
executors  bring  suit  in  the  ecclesiastical  court  against  the 
debtors  of  the  deceased,  and  both  times  they  are  met  by  a 
writ  of  prohibition  (n°  550,  810).  But  this  prohibition  re- 
lies no  longer  upon  an  absolute  intransmissibility  of  the 
claims  to  the  executor ;  this  intransmissibility  is  only  rela- 
tive. The  executors  are  barred  from  their  action,  because 
the  claim  has  not  been  judicially  established  or  acknowledged 
during  the  testator's  lifetime,  and  therefore  was  incapable 
of  being  bequeathed.  This  view  is  confirmed  by  a  note  to 
a  judgment  of  1231.  "  Not  a  quod  in  extremis  non  potest 
quis  legare  actlones  suas,  et  maxime  de  debitis  que  petita  non 
fuernnt  nee  recognita  in  vita  debitoris."  Bracton  thus 
seems  to  concede  that  the  claim  of  the  deceased  might  be 
transmitted  to  his  executors,  if  it  had  been  acknowledged 
during  the  lifetime  of  the  testator,  and  he  gives  as  a  reason 
that  the  claim  so  acknowledged  constitutes  part  of  the  goods 
of  the  testator  and  is  transmitted  with  them.1  In  fact  the 
Notebook  shows  on  two  occasions  executors  recovering,  with- 
out any  question  being  raised,  claims  of  the  deceased.  So, 
in  1231,  we  find  testamentary  executors  vested  with  a  claim 
secured  by  a  mortgage,  and  granting  to  third  parties  some 
rights  in  the  land  thus  pledged.2 

Bracton,  embodying  in  his  treatise  (written  between  1250 
and  1258)  the  decisions  referred  to  in  his  Notebook,  as  yet 


Bracton,  De  legibus,  ed.  Travers  Twiss  VI  p.  212;  and  Cases  No. 
162,  325,  550,  684,  in  his  Notebook.  This  distinction  between  claims 
which  have  been  the  subject  of  judgment  or  acknowledgment,  and 
others,  is  not  peculiar  to  the  English  law.  It  is  also  found  on  the  Con- 
tinent; but  it  is  noteworthy,  that  the  English  law  which  in  principle 
has  rejected  without  distinction  any  assignment  of  claims,  admits  the 
distinction  in  question  only  in  the  matter  of  testamentary  executorship. 
This  can  be  explained  only  on  the  theory  that  English  custom  regards 
the  executor  not  as  an  assignee,  but  as  the  representative  of  the  deceased. 

8  Bracton's  Notebook  No.  381,  559.  The  mortgage  here  seems  to 
pass  like  a  chattel  into  the  hands  of  the  executors;  which  is  surprising, 
since  at  this  time  the  creditor  is  ordinarily  a  feoffee  of  the  mortgaged 
land,  whose  estate,  upon  his  death,  passes  to  his  heir.  Only  in  equity, 
the  heir  is  regarded  as  trustee  for  the  executor  or  administrator  of  the 
mortgagee:  Williams,  Real  Property,  512.  Perhaps  this  is  the  case  of 
a  mortgage  created  by  a  term  of  years,  for  the  term  of  years  is  a  chattel 
which  passes  to  the  executors  or  administrators  of  the  termor. 


74-     CAILLEMER:    EXECUTOR  759 

considers  the  heir  as  the  true  representative  of  the  deceased.1 
Yet  we  must  ask  whether  at  that  time  the  development  has 
not  considerably  advanced  beyond  that  stage.  The  rolls  of 
Gascony  of  1242  and  1252  seem  to  regard  the  testamentary/ 
executors  as  the  active  and  passive  representative  of  the 
testator.  True,  in  a  compromise  between  the  King  and  one 
of  his  debtors  (No.  347,  367),  it  is  agreed,  that  the  heirs 
of  the  debtor  shall  pay  his  debt,  and  that  the  executors  shall 
dispose  of  his  goods ;  but  we  have  here  a  covenant,  a  spe- 
cialty binding  the  heir,  which  later  on  becomes  necessary  in 
order  to  hold  the  heir  for  the  debts  of  the  deceased.  In  all 
the  other  cases,  action  for  the  debt  of  the  deceased  is  brought 
against  the  executors  (77,  457,  1386).  Moreover  the  exec- 
utors bind  themselves  to  pay  to  the  King  the  debts  of  the 
testator  that  might  hereafter  be  discovered  (1820,  2750, 
3487,  3534)  ;  their  responsibility  is  thus  no  longer  limited 
to  the  debts  mentioned  in  the  will  and  acknowledged  by  the 
deceased.  On  the  other  hand  the  King  directs  his  bailiff  to 
pay  to  the  executors,  and  not  to  the  heirs,  the  sums  which  he 
owes  to  the  testator  (1672,  3114,  3137). 

The  wills  of  the  same  period  show  that  the  clause  binding 
the  testamentary  executors  to  pay  all  the  debts  of  the  de- 
ceased has  become  a  common  form.  It  is  found  regularly  in 
the  wills  registered  since  1259  in  the  Hustings  Court  of 
London,  and  it  is  generally  accompanied  by  particular  direc- 
tions as  to  the  goods  chargeable  with  the  payment  of  debts.2 
On  the  other  hand,  in  1248,  an  Archdeacon  of  York,  by  his 
will,  places  at  the  disposal  of  his  executors  "  omnia  sua,  tarn 
debit  a,  quam  ubique  locorum  inventa  sint;  "  which  implies  a 
transfer,  without  distinction,  of  all  claims  of  the  deceased 
in  favor  of  the  executor. 3 

These  illustrations  show  that  as  early  as  the  middle  of  the 
13th  century,  the  executor  was  according  to  the  English 


1Ed.  Travers  Twiss  I  p.  482;  II  122;  220;  VI  p.  212. 

2  Sharpe,  Calendar  of  Wills  I,  pp.  3,  4,  11,  12,  13;  Rymer,  Foedera  I, 
p.  495,  will  of  Edward,  son  of  the  King  of  England  (1272):  "as  queus 
(i.e.  the  executors)  mis  donoms  e  grauntoms  plener  poer,  ke  ils  pusint 
ordiner,  pur  nostre  alme,  de  tuz  nos  beyns  moebles  e  noun  moebles,  cum 
en  rendre  nos  dettes  e  redrecher  les  tort  ke  nus  avons  fet  par  nus  on 
par  nos  Baliz." 

'Historians  of  York  III  p.  165   (1248). 


760         IX.     WILLS,  DESCENT,  MARRIAGE 

view  the  true  successor  to  the  claims  and  debts  of  the  de- 
ceased; and  the  English  common  law  would  have  adopted 
this  solution  very  quickly,  had  not  the  question  of  principle 
.been  complicated  by  a  conflict  of  jurisdictions. 

It  was  through  their  connection  with  the  will,  as  testa- 
mentary causes,  that  the  "  actions  of  debt  "  by  or  against  the 
executors  had  been  allowed  by  the  courts  Christian ; 1  but  this 
method  of  procedure  threatened  to  derange  and  alter  the 
theory  of  contracts.  The  courts  of  the  church,  under  pre- 
tence of  restraining  every  breach  of  promise  (ftdei  laesio), 
indirectly  came  to  validate  obligations  that  were  not  binding 
in  the  eyes  of  the  lay  courts.  Moreover,  they  proved  to  be 
much  less  strict  than  the  lay  courts  about  the  proof  of  obli- 
gations ;  and  so  the  death  of  the  debtor  or  creditor,  by 
changing  the  jurisdictions  admissible  for  the  action  of  debt, 
had  its  effect  upon  the  contracts  themselves. 

This  is  the  reason  why  the  lay  justices  were  led  to  contend 
against  the  justices  of  the  Church,  with  a  view  to  retain  or 
recover,  not  a  general  jurisdiction  in  matters  testamentary, 
but  a  special  jurisdiction  in  the  matter  of  actions  of  debt  by 
or  against  the  executors.  In  order  to  prevail  over  the  eccle- 
siastical courts  on  this  point,  the  lay  courts  in  their  turn 
consented  to  treat  the  executor  as  the  active  and  passive 
representative  of  the  deceased. 

A  rapid  development  transferred  from  the  courts  of  the 
Church  to  the  lay  courts  the  actions  of  debt  to  which  testa- 
mentary executors  were  parties.  A  register  of  writs  of  the 
first  years  of  Edward  I  shows  that  there  are  some  who  allow 
to  the  executor  a  breve  de  compoto  reddendo,  and  that  this 
action,  being  testamentary,  belongs  to  the  church.  But  some 
time  afterward,  between  1279  and  1285,  the  Articuli  clerl 
show  the  English  clergy  complaining  of  the  prohibitions 
encountered  in  the  actions  brought  against  the  debtors  of 
the  deceased  by  testamentary  executors  in  the  ecclesiastical 
courts.  The  advisers  of  the  King  answer  that  the  executor 
must  not  occupy,  as  against  the  debtors  of  the  estate,  a  better 
position  than  the  testator  himself;  in  the  courts  of  the 
church,  the  executor  might  prove  the  debt  "  per  duos  testes 

1See  above,  on  this  matter,  vol.  II,  p.  301. 


74.     CAILLEMER:    EXECUTOR  761 

minus  idoneos,"  while  the  defendant  could  not  defend  by  the 
oath  and  the  other  methods  of  defence  admitted  by  the  tem- 
poral courts,  and  would  thus  find  his  position  impaired  by 
the  death  of  his  creditor.1 

It  is  certain  that  even  before  1285  the  temporal  courts 
assumed  cognizance  of  actions  of  debt  brought  by  or  against 
executors;  for  at  that  date  the  Statute  of  Westminster 
Second  gives  executors  in  the  temporal  courts  the  breve  de 
compoto  reddendo  (13  Ed.  I,  c.  26)  ;  at  the  same  time,  it 
requires  the  ecclesiastical  Ordinary,  successor  to  the  goods  of 
an  intestate,  to  pay  the  debts  of  the  deceased  "  in  the  same 
manner  as  testamentary  executors  (c.  19)."  Thus  the  exec- 
utor becomes  in  the  temporal  courts  the  active  and  passive 
representative  of  the  deceased.  No  doubt,  in  1287,  the  synod 
of  Exeter  (c.  50)  excommunicates  debtors  of  the  estate  who 
prevent  testamentary  executors  from  prosecuting  their 
claims  before  the  courts  of  the  Church.  But  these  protests 
are  of  no  avail.  About  1290,  while  Fleta,  under  Bracton's 
influence,  seems  wavering, 2  Britton  is  quite  positive :  though 
testamentary  causes  belong  to  the  courts  of  the  Church, 
nevertheless  the  actions  of  debt  belong  to  the  temporal  courts 
exclusively.3  From  about  the  same  time,  the  Year  Books4 
and  the  Rolls  of  Parliament5  leave  no  further  doubt.  The 
debts  and  claims  devolve  upon  the  executor;  and  the  actions 
to  which  they  give  rise  belong  to  the  temporal  courts. 

Thus  the  English  temporal  jurisdictions,  following  the 
example  of  the  courts  Christian,  established  the  active  and 
passive  representation  of  the  testator  by  his  executors.  The 
heir  is  no  longer  held  for  the  debts  of  the  ancestor,  unless  the 
latter  has  covenanted  for  himself  and  his  heir,  later  on  called 
a  specialty  binding  the  heir.6 

1Raine,  Historical  papers  and  letters  from  the  Northern  registers, 
No.  43,  p.  71  (1279-1285),  §3. 

2 II  57,  §  13  seqq.;  II  62,  §  8  seqq. 

8  Britton  c.  29,  §  35. 

4Y.  B.  20  and  21  Ed.  I,  p.  375  (1293)  ;  21  and  22  Ed.  I,  p.  259  (1293), 
p.  519  (1294),  p.  599  (1294);  33  and  35  Ed.  I,  p.  63,  69  (1305);  30  and 
31  Ed.  I,  p.  238  (1302). 

6  Rolls  of  Parliament  I,  43,  47a,  107,  164,  197  s. 

"Already  the  Fleta  clearly  indicates  this  principle:  Fleta  II  62,  §10. 
But  see  Stat.  Westm.  I.  c.  36;  Stat.  Westm.  II.  c.  35,  which  admit  sub- 
sidiarily an  action  against  the  heir,  si  executores  non  sufficiant. 


762         IX.      WILLS,  DESCENT,  MARRIAGE 

We  must  not  however  exaggerate  the  practical  importance 
of  the  development  thus  far  traced.  The  actions  which  are 
transmitted  from  the  debtor  or  creditor  are  not  yet  numerous. 
It  was  in  connection  with  the  action  of  debt,  that  in  the 
course  of  the  13th  century  the  struggle  was  fought  out, 
first  between  the  heirs  and  executors,  then  between  courts 
Christian  and  courts  temporal.  The  breve  de  compoto  red- 
dendo,  which  the  courts  Christian  had  endeavored  to  secure  to 
the  executors,  was  given  them  by  the  lay  courts  after  1285. 
But  the  actions  founded  on  injury  to  the  person  or  property 
of  the  testator  or  on  injury  done  by  him  remained  absolutely 
intransmissible.  The  English  law  applied  rigorously  the 
rule:  actio  personalis  moritur  cum  persona.  A  series  of 
reforms,  leaving  the  principle  intact,  restricted  the  scope  of 
its  application.  The  first  step  in  that  direction  affected 
the  executor's  active  representation,  and  was  taken  in  1330 
by  the  famous  statute  of  Edward  III  "  de  bonis  asportatis 
in  vita  testatoris,"  which  gave  to  the  executors  the  action  of 
trespass  that  had  accrued  to  the  testator  by  reason  of  dam- 
age done  to  his  personal  property  (bona  et  cat  alia;  4  Ed.  Ill, 
c.  7).  This  statute  was  later  on  interpreted  most  liberally; 
but  it  extended  neither  to  injuries  done  to  the  person  of  the 
testator,  nor  to  damage  done  to  his  real  property.  On  the 
other  hand,  as  regards  the  executor's  passive  representation, 
actions  founded  in  tort  became  extinguished  (according  to  the 
doctrine  of  the  Middle  Ages)  with  the  death  of  the  wrong 
doer ;  it  was  only  conceded  that  the  executor  might  be  held  for 
the  benefit  (in  money  or  goods)  received  by  the  wrong  doer. 
Only  in  the  19th  century  was  an  action  given  against  the 
testamentary  executors  for  the  damage  done  by  the  testator 
within  six  months  prior  to  his  death,  to  the  property  (real 
or  personal)  of  a  third  person;  and  on  the  other  hand,  an 
action  on  behalf  of  the  executors  for  damage  done  to  the 
real  property  of  the  testator  within  six  months  prior  to  his 
death.  As  regards  actions  founded  on  personal  injuries, 
they  have  remained  practically  intransmissible,  both  in  favor 
of  and  against  executors.  Even  in  contractual  matters,  the 
transmission  of  claims  and  debts  to  the  executors  had  not  in 
the  13th  century  the  importance  which  it  subsequently  as- 


74.     CAILLEMER:    EXECUTOR  763 

sumed;  for  it  must  be  remembered  that  in  the  English  law 
the  system  of  contracts  at  the  end  of  the  13th  century  was 
very  imperfectly  developed. 

Thus  the  English  law  gradually  came  to  make  the  execu- 
tor the  active  and  passive  representative  of  the  testator. 
Claims  and  debts  of  the  deceased  devolve  on  him,  as  they  did 
on  the  heir  in  Rome,  —  a  resemblance  noticed  by  English 
writers.1 

But  what  happens,  if  the  debtor  of  the  deceased  or  the 
creditor  of  the  deceased  is  the  executor  himself?  What  will 
result  from  the  concurrence  in  the  same  person  of  the  two 
capacities  of  creditor  and  debtor?  The  English  common 
law  has  not  hesitated  to  accept  the  extreme  consequence  in- 
volved in  the  idea  of  representation :  the  claim  of  the  executor 
against  the  deceased,  his  debt  to  the  deceased,  becomes  ex- 
tinct by  merger.  The  English  writers  while  not  using  the 
word,  state  the  fact.  If  the  testator  appoints  his  debtor  as 
executor,  he  thereby  releases  the  debt.  For  a  claim,  the  Eng- 
lish writers  say,  is  nothing  but  a  right  to  recover  a  sum  of 
money  by  action.  Since  the  executor  cannot  sue  himself,  the 
appointment  of  a  debtor  to  the  office  of  testamentary  exec- 
utor of  his  creditor  suspends  the  right  of  action  arising 
from  the  claim.  But  when  an  action  is  suspended  voluntarily 
by  the  person  who  might  have  brought  it,  it  is  regarded  as 
permanently  extinguished.  If  the  testator  appoints  his 
creditor  as  executor,  the  doctrine  of  the  common  law  is  more 
complex:  as  soon  as  the  executor  gets  possession  of  the 
assets  of  the  estate,  his  claim  becomes  extinct;  and  if  there 
are  co-debtors,  the  creditor  can  no  longer  sue  them.  But  the 
English  law  gives  to  the  executor  a  right  of  retainer;  he 
may  pay  himself  out  of  the  assets,  in  preference  to  other 
creditors  of  the  same  rank. 

Such  is  the  doctrine  of  the  common  law.  When  was  it 
introduced?  We  cannot  tell.  English  custom  has  conferred 
upon  the  executor  exorbitant  rights,  without  it  being  pos- 
sible to  follow  the  stages  of  the  evolution. 


1  Doctor  and  Student,  I,  c.  19:  "the  heir,  who  in  the  English  law  is 
called  executor." 


764         IX.     WILLS,  DESCENT,  MARRIAGE 

1  III.  The  bestowal  of  the  residue  upon  the  executor  has 
likewise  assumed  in  the  English  law  a  much  more  pronounced 
character  than  that  given  to  it  by  the  customs  of  the  Conti- 
nent. On  the  one  hand,  while  on  the  Continent  a  formal 
clause  of  the  will  is  required  in  order  that  the  residue  may 
belong  to  the  executor,  at  common  law  the  residue  of  the 
catalla  belongs  to  him  as  of  right.  On  the  other  hand,  while 
in  the  continental  customs  the  residue  is  handed  to  the  execu- 
tor merely  for  the  purpose  of  distribution,  at  common  law, 
the  residue  belongs  to  him,  and  he  retains  it  for  himself. 

This  is  one  of  the  best  established  rules  of  the  common 
law;  yet  its  origin  is  obscure.  The  English  wills  of  the 
13th  century  rarely  contain  a  residuary  disposition;  as  a 
rule  they  are  made  up  of  a  number  of  particular  bequests. 
What,  then,  becomes  of  the  residue?  In  the  silence  of  the 
authorities,  a  positive  reply  is  impossible.  Yet  the  thought 
occurs  that  the  same  reasons  that  have  kept  the  heir  of  the 
real  property  from  any  administration  of  the  catalla  must 
also  have  rendered  difficult  any  claim  of  the  heir  concerning 
the  residue.  The  heir  of  the  real  property  must  have  very 
rapidly  lost  all  relation  to  the  catalla,  from  the  point  of 
view  of  the  residue  as  well  as  from  any  other. 

It  is  true  that  wife  and  children  have  a  right  to  a  part 
of  the  catalla;  but  just  because  this  part  is  fixed  by  custom, 
it  is  difficult  for  them  to  raise  claims  to  the  "  dead's  part," 
i.  e.  the  residue,  and  it  is  very  probable  that  this  part,  even 
in  the  absence  of  a  formal  clause  in  the  will,  was  expected 
to  be  applied  entirely  for  the  good  of  the  soul  of  the  deceased. 

It  is  also  possible  that  the  rules  relating  to  the  assign- 
ment of  the  "  dead's  part  "  to  the  executors  have  been  influ- 
enced by  rules  relating  to  its  assignment  to  the  administra- 
tors (who  also,  at  that  time,  were  called  executors).  The 
administrator  may  dispose  of  the  dead's  part  of  the  deceased  i 
why  should  the  executor,  chosen  by  the  deceased  and  enjoy- 
ing his  confidence,  not  have  the  same  right?  As  soon  as  the 
executor  has  distributed  the  legacies  expressly  given  by  the 
deceased,  he  finds  himself,  as  to  the  residue  of  the  "  dead's 
part,"  in  the  same  position  as  the  administrator.  We  there- 

1  [P.  503.] 


74-     CAILLEMER:    EXECUTOR  765 

fore  believe  that  in  the  13th  or  14th  century  (beginning  at 
a  time  which  it  is  impossible  to  fix  now)  the  executor  had 
the  power,  in  the  absence  of  any  testamentary  clause,  to  dis- 
tribute for  the  benefit  of  the  soul  of  the  deceased  the  residue 
of  the  "  dead's  part,"  without  having  to  restore  it  to  the 
heirs  of  the  deceased. 

But  we  are  here  as  yet  far  from  the  final  result  reached 
by  the  common  law,  for:  1.  The  executors  cannot  dispose 
of  the  residue  of  all  the  catalla,  but  only  of  the  residue  of  the 
"dead's  part."  2.  They  may  not  keep  that  residue  for 
themselves,  but  must  distribute  it  for  the  benefit  of  the  soul 
of  the  deceased. 

And  first,  as  we  have  seen  above,  the  testator  cannot  dis- 
pose freely  of  all  his  chattels.  If  he  leaves  a  wife  and  chil- 
dren, he  can  dispose  only  of  one  third ;  if  he  leaves  a  wife  or 
children,  he  can  dispose  only  of  one  half.  Hence  the  exec- 
utor's right  can  extend  only  to  the  residue  of  the  third  or 
half,  the  "  dead's  part."  The  other  parts  he  must  restore  to 
the  widow  and  children.  But  the  rights  of  the  widow  and 
children  have  gradually  disappeared  from  English  custom, 
without  it  being  possible  to  say  at  what  time  the  transforma- 
tion took  place.  As  early  as  the  16th  century  the  division  of 
the  catalla  into  two  or  three  parts  ceased  to  exist  in  a  great 
portion  of  England,  while  it  survived  until  the  17th  century 
in  London,  Yorkshire,  and  Wales:  only  at  the  end  of  the 
17th  and  the  beginning  of  the  18th  century  several  statutes 
brought  uniformity  to  the  English  law  on  this  point. 

Moreover,  even  with  the  limitation  mentioned,  the  residue 
was  not  absolutely  free  in  the  hands  of  the  executor ;  he  was 
not  allowed  to  keep  it  for  himself.  He  had  to  distribute  it 
for  the  benefit  of  the  soul  of  the  testator.  His  large  powers 
over  the  residue  were  like  those  of  an  executor  in  the  conti- 
nental law  to  whom  a  formal  clause  has  given  the  right  to 
distribute  the  residue ;  he  was  a  distributor,  and  not  a  bene- 
ficiary. This  resulted  at  first  from  the  very  nature  of  the 
"  dead's  part,"  the  third  or  half  reserved  to  the  deceased. 
The  division  of  the  succession  did  not  contemplate  the  enrich- 
ment of  the  executors,  but  the  benefit  of  the  soul  of  the  de- 
ceased, and  that  third  part,  in  the  absence  of  a  contrary 


766         IX.      WILLS,  DESCENT,  MARRIAGE 

clause,  must  be  devoted  to  pious  works.  This  appears  from 
numerous  wills  of  the  13th  century;  whenever  these  instru- 
ments speak  of  the  residue,  it  is  to  charge  the  executors  to 
distribute  it.1  The  same  is  still  true  in  the  14th  Century: 
the  executors  receive  the  residue  to  distribute,  not  to  keep  it ; 
they  must  distribute  it  "  in  periculo  animarum  suarum  "; 
and  they  will  answer  for  it  before  God  "  in  tremendo  ju- 
dicio."  2  At  this  time  also,  the  English  councils  and  synods 
prohibit  the  executor  from  keeping,  on  whatever  pretence, 
the  goods  of  the  succession.  The  synod  of  Worcester 
(1240),  c.  49,  the  council  of  Lambeth  (1261),  the  synod  of 
Exeter  (1287),  c.  50,  and  the  council  of  London  (1342), 
c.  7,  declare  that  the  executor  has  no  right  to  retain  any 
part  of  the  goods  of  the  deceased,  save  as  creditor  or  legatee. 
At  most  the  bishop  is  permitted,  when  the  succession  is  con- 
siderable, to  allow  the  executor  a  small  remuneration  pro 
ipsius  labore. 

We  find,  however,  in  the  14th  century,  in  several  wills 
which  increase  in  number  as  we  approach  the  end  of  the  cen- 
tury, legacies  of  the  residue  by  which  the  testator  transmits 
this  residue,  not  to  be  distributed,  but  to  definite  beneficiaries. 
One  fact  is  to  be  noticed :  while  in  France  these  dispositions 
were  made  for  the  benefit  of  third  parties  other  than  the 
executors,  in  England,  in  the  great  majority  of  cases  they 
are  made  to  the  executors  themselves,  or  to  some  of  them.  By 
virtue  of  such  clauses  the  executors  take  the  residue,  not  to 
distribute  but  to  keep  it.3  Moreover  in  some  instruments 
the  legacy  of  the  residue  is  expressly  given  to  the  executor 
as  such,  and  the  testator  takes  care  to  declare  formally  that 
if  the  executor,  who  is  also  residuary  legatee,  will  not  take 
upon  himself  the  execution  of  the  will,  he  shall  not  be  allowed 

1Bracton's  Notebook,  No.  550  (1231);  Historians  of  York,  III 
p.  165  (1248);  Madox,  Formulare  No.  771  (1295);  Sharpe,  Calendar  of 
Wills,  p.  1,  3,  5,  48. 

2  Wills  and  Inventories,  I  No.  16  (1313),  No.  25  (1335),  No.  29  (1372)  ; 
No.  31  (1378);  No.  33  (1388);  Madox,  Formulare  No.  774;  Testamenta 
Eboracensia,  I  No.  1  (1316),  No.  5  (1342),  No.  70  (1375),  No.  142 
(1393);  Historians  of  York  III  p.  271  (1349). 

8  Madox,  Formulare,  No.  773  (1326) ;  Wills  and  Inventories,  I,  No. 
21  (1334);  No.  26;  No.  30  (1372);  Testamenta  Eboracensia,  I  No.  3 
(1341);  No.  4  (1342);  No.  6  (1342);  No.  7  (1344);  No.  13  (1346);  No. 
144  (1392);  No.  8;  No.  12. 


74-     CAILLEMER:    EXECUTOR  767 

to  claim  his  legacy.  So  in  1395  a  widow  has  appointed  her 
son  as  "  chief  executor  "  and  has  bequeathed  to  him  the  re- 
sidue of  her  goods ;  but  she  adds  that  if  her  son  should  refuse 
execution,  the  residue  shall  be  distributed  among  the  other 
executors.1 

As  these  instruments  prove,  the  English  custom,  at  the 
end  of  the  14th  century  tended  to  regard  the  two  capacities 
of  testamentary  executor  and  of  residuary  legatee  as  tied  up 
with  each  other.  At  what  moment  did  this  usage  become  a 
rule  of  law?  We  cannot  say.  We  can  only  state  the  point 
of  departure  of  this  development,  and  its  final  outcome. 

This  final  outcome  is  clear.  If  the  deceased  has  not  named 
in  his  will  a  residuary  legatee,  then  according  to  the  common 
law  the  executors  must  collect  the  residue  of  the  personal 
property,  and  they  may  apply  it  to  their  own  use.  Their 
position  is  in  this  respect  exactly  like  that  of  the  Roman  heir, 
whose  right  may  be  limited  in  fact  by  particular  legacies, 
but  who  has  a  contingent  claim  to  the  entirety  of  the  succes- 
sion. In  English  law,  all  disposable  goods  not  charged  by 
the  testator  with  a  fixed  application  go  to  the  executor  and 
belong  to  him  as  his  own.  This  rule  is  clearly  formulated  by 
Blackstone:  "  If  there  be  none  (residuary  legatee),"  he  says, 
"  it  was  a  long  settled  notion  that  it  developed  to  the  exec- 
utor's own  use,  by  virtue  of  his  executorship," 2  and  in 
Blackstone's  time  this  rule  is  set  aside  in  equity  only  when  it 
conflicts  with  the  clear  intention  of  the  testator,  as  e.  g. 
where  the  testator  has  given  the  executor  a  fixed  legacy. 

It  may  even  happen  that  the  executor  receives  not  merely 
the  residue,  but  all  the  chattels.  In  England,  as  on  the  Con- 
tinent, in  the  Middle  Ages,  a  custom  grew  up  for  those  who, 
surprised  by  death,  had  not  the  time  to  regulate  in  detail 
the  disposition  of  their  goods,  to  name  simply  a  distributor, 
a  commissarius,  leaving  it  to  him  to  distribute  at  his  discre- 
tion the  goods  of  the  decedent.  This  practice,  quite  opposed 
to  the  principles  of  the  Roman  law,  is  found  everywhere  in 
the  13th  century.  In  1216  King  John,  attacked  by  a  sudden 
illness,  entrusts  the  ordmatio  and  dispositio  of  his  property 

1  Furnivall,  Fifty  Earliest  English  Wills,  p.  4,  p.  9. 
2 II,  p.  514. 


768         IX.      WILLS,  DESCENT,  MARRIAGE 

to  thirteen  faithful  friends,  leaving  to  them  the  care  of  dis- 
tribution. In  vain  did  Innocent  IV,  about  1246,  declare  such 
testaments  void,  and  wanted  to  treat  those,  who  were  content 
to  name  an  expressor  et  executor,  as  intestate.  The  Fleta 
and  Britton  declare  that  one  may  leave  "  simplement  sauntz 
aucune  especialte  .  .  .  sa  dreyne  volunte  en  la  distribucioun 
de  touz  ses  biens  moebles  en  la  ordinounce  de  acun  ami." 
So  the  mere  appointment  of  an  executor  is  enough  to  consti- 
tute a  will.1 

These  executors,  appointed  without  any  directions,  were, 
in  the  13th  century,  certainly  required  to  distribute  the  chat- 
tels, at  least  the  dead's  part,  for  the  profit  of  the  soul  of  the 
deceased.  But  gradually  they  are  allowed  to  retain  the 
dead's  part,  then  the  entire  personal  property,  and  thus  the 
mere  appointment  of  an  executor  has  become  in  the  common 
law  the  equivalent  of  a  bequest  of  all  the  personal  property 
for  the  benefit  of  the  executor. 

Not  until  1830  is  it  provided  by  statute  that  the  executors 
shall  be  regarded  by  the  courts  of  equity  as  trustees  for  the 
benefit  of  the  persons  named  in  the  statute  of  distributions  as 
takers  in  case  of  intestate  administration,  namely,  the  next  of 
kin.  Only  in  our  days  therefore  has  the  English  law  come 
back  to  the  rule  which  never  ceased  to  be  observed  on  the  Con- 
tinent: the  residue  belongs  to  the  executor  only  if  expressly 
so  provided  by  the  testator.  The  Scotch  law,  as  early  as  the 
17th  Century,  had  done  away  with  the  extraordinary  com- 
mon law  power  of  disposal,  by  putting  again  into  force  the 
tripartite  division  of  the  chattels  and  by  limiting  to  the 
"  dead's  part "  the  right  of  the  executor  to  keep  the  residue. 

But  it  is  not  our  task  to  trace  through  modern  times  the 
history  of  testamentary  executorship.  We  have  even  omitted 
in  this  study  many  features  of  the  institution  in  the  Middle 
Ages.  We  have  said  nothing  of  the  essential  duties  of  the 
executor  on  entering  upon  his  office  (burial  of  the  deceased, 
probate  of  the  will,  inventory)  ;  nor  of  the  rules  established 
by  the  English  councils  with  regard  to  the  supervision  and 
control  of  the  executors  by  the  public  authorities;  nor  of 

1Rymer,  Foedera  I  p.  144;  Matth.  Paris;  Chron.  maj.  IV  p.  604  et  s.; 
Fleta  II,  62,  13;  Britton  c.  29,  §35. 


74.     CAILLEMER:    EXECUTOR  769 

the  creation  of  judicially  appointed  executors,  the  adminis- 
trators cum  testamento  annexo.  We  merely  wished  to  sketch 
the  fundamental  features  which  the  institution  presents  on 
the  common  law,  and  to  trace  their  development.  We  wished 
at  the  same  time  to  indicate  the  importance  of  the  executor- 
ship  in  the  English  law.  It  is  there,  what  the  institutio 
heredis  is  in  Rome,  caput  atque  fundamentum  totlus  testa- 
menti.  In  the  17th  century,  Swinburne  and  Godolphin  de- 
clare that  "  the  naming  or  appointment  of  an  executor  is 
said  to  be  the  foundation,  the  substance,  the  head,  and  is 
indeed  the  true  formal  cause  of  the  testament,  without  which 
a  will  is  no  proper  testament,"  but  only  a  codicil.  There  are 
even  some  decrees  that  say  that,  without  an  executor,  a  will 
is  "  null  and  void." 

Certainly,  the  evolution  of  the  institution  is  not  closed. 
The  Land  Transfer  Act  of  1897  has  given  the  executor  a 
new  function  in  committing  to  him  not  merely  the  personalty 
but  the  realty,  in  making  of  him  a  representative  of  the 
deceased  for  the  entire  succession.  The  future,  which  alone 
can  tell  what  the  consequences  of  such  a  reform  will  be,  may 
perhaps  yet  give  a  new  lease  of  life  to  the  old  mediaeval  insti- 
tution, which,  when  it  declined  on  the  continent,  retained 
such  vitality  in  the  English  law. 


75.     THE  RISE  OF  THE  ENGLISH  WILL1 

BY  MELVILLE  MADISON  BiGELow2 

AS  the  first  step  to  any  stable  theory  of  the  post-mortem 
disposition  of  property,  whether  by  testacy  or  by 
intestacy,  it  must  be  observed  that  the  idea  of  absolute  prop- 
erty forever  in  any  particular  owner,  as  in  the  case  of  an 
estate  to  a  man  and  his  heirs  forever,  is  a  fiction,  —  a  useful 
fiction  probably,  but  still  a  fiction.  A  grant  to  a  man  and 
his  heirs  forever  is  a  grant  to  each  grantee  forever;  the 
"  heirs  "  have  nothing  in  the  estate  granted.  The  grant 
therefore  is  to  the  grantee  as  if  he  might  live  forever,  which 
manifestly  is  impossible,  so  far  as  this  present  life  is  con- 
cerned; and  it  is  certain  that  no  man  can  take  his  property 
with  him  after  death.  There  can  be  no  such  thing  then  as 
absolute  property  forever,  in  the  true  sense  of  the  term. 

It  is  no  answer  to  say  that  a  man  may  be  considered  to 
live  in  his  posterity,  or  even,  to  put  the  case  still  stronger, 
that  a  man  holds  posterity  in  his  loins ;  for  either  form  of 
statement  is  as  much  a  fiction  as  the  one  first  mentioned.  The 
childless  man  is  conclusive  of  the  point.  Nor  is  it  an  answer 
to  say  that  the  owner  of  property  may  sell  or  exchange  it 

1This  Essay  was  first  published  in  the  Harvard  Law  Review,  1897, 
vol.  XI,  pp.  69-79,  under  the  title  "The  Theory  of  Post-Mortem  Dis- 
position; The  Rise  of  the  English  Will,"  and  subsequently  formed  part 
of  a  treatise  on  Wills. 

2  Professor  of  law  and  dean  of  the  faculty  of  law  in  Boston  Univer- 
sity Law  School.  Harvard  University,  Ph.  D.  1879 ;  Northwestern  Uni- 
versity, LL.  D.,  1896. 

Other  Publications:  Placita  Anglo-Normannica,  1879;  History  of 
Procedure  in  England  (Norman  Period),  1880;  Leading  Cases  on  Torts, 
1st  ed.  1875,  3d  ed.  1895;  Elements  of  Torts,  1st  ed.  1878,  8th  ed.  1907; 
Law  of  Estoppel,  1st  ed.  1872,  5th  ed.  1890;  Law  of  Fraud,  1st  ed.  1877, 
3d  ed.  1888;  Overruled  Cases,  1st  ed.  1873,  Supplement,  1887;  Cases  on 
the  Law  of  Bills,  Notes,  and  Cheques,  3d  ed.  1894;  Law  of  Wills,  1898. 


75.     BIGELOW:  RISE  OF  THE  ENGLISH  WILL  771 

for  things  consumable  (if  it  be  not  consumable  itself),  and 
then  consume  the  substitute;  for  in  the  case  in  hand  the 
property,  whether  consumable  or  not,  has  not  been  consumed. 
Though  it  or  some  substitute  might  have  been  used  up,  as 
a  matter  of  fact  it  has  been  left,  and  it  is  now  to  be  disposed 
of  at  death.  The  answer  supposed  confuses  the  notion  of 
"  absolute  "  property,  or  one's  power  over  things,  with  the 
duration  of  such  power.  As  a  mere  matter  of  power,  a  man 
may  certainly  own  property  "  absolutely." 

Considered,  however,  as  a  theory,  as  it  must  be,  how  is  the 
theory  of  ownership  forever  to  be  worked  out?  With  cases 
of  testacy  there  would  be  no  difficulty ;  the  testator  is  deal- 
ing with  his  own,  and  acting  in  person.  In  cases  of  intestacy 
the  theory  can  only  be  worked  out  upon  the  idea  of  an  im- 
plied agency  in  the  State ;  the  State  acting  for  the  owner 
in  case  of  his  failure  to  dispose  of  the  property.  But  it  is 
plain  that  such  an  agency  can  only  stand  upon  a  footing 
wholly  unique  and  unlike  any  other.  In  the  first  place  the 
supposed  agency  would  be  confined,  as  a  matter  of  fact  at 
least,  to  giving;  it  would  not  extend  to  selling  or  otherwise 
contracting.  In  the  second  place  the  supposed  agency  would 
go  into  operation  where  recognized  agency  ends,  with  the 
death  of  the  principal.  And  in  the  third  place  the  agency 
would  be  irrevocable.  Agency  cannot  be  stretched  to  such 
a  point.  And  the  same  will  be  found  true  of  any  other  term 
that  may  be  used  to  do  duty  for  the  idea  of  acting  for  one 
who  is  defunct. 

On  what  support  then  can  a  stable  theory  of  post-mortem 
disposition  be  placed?  Discordant  answers  have  been  sug- 
gested. 

One  answer  is,  that  the  title  to  property,  subject  to  life 
ownership  in  a  grantee,  is  in  the  State,  and,  but  for  the  fact 
that  the  State  has  thought  best  to  allow  such  grantee  to 
designate  the  course  of  the  property  after  his  death,  it  would 
always  revert  to  the  State  upon  the  death  of  the  grantee. 
This  view  of  the  case,  it  may  be  noticed,  has  nothing  to  do 
with  original  ownership  in  the  State,  except  inferentially ; 
it  proceeds  upon  the  notion  that  the  State  has  some  sort  of 
reversionary  right  upon  the  death  of  its  grantee  in  fee  and 


772         IX.     WILLS,  DESCENT,  MARRIAGE 

of  each  of  his  successors  in  ownership,  because  in  the  nature 
of  things  no  man  can  hold  property  forever.  The  theory 
of  perpetual  ownership  collapses  the  moment  it  is  put  to  the 
test,  according  to  this  view.  I  hold  to  myself  and  my  heirs 
forever,  the  grant  declares ;  but  after  my  death  the  prop- 
erty becomes  the  State's,  though  the  State  allows  me,  by 
some  sort  of  agency,  to  dispose  of  it.  That  fact,  however, 
has  no  bearing  upon  the  soundness  of  the  theory  of  State 
ownership. 

What  then  are  the  facts  upon  which  this  last  named  theory 
rests  or  derives  support?  And  how  does  the  theory  work  out 
its  result?  These  questions  in  order. 

Intestate  laws  strike  one  first.  The  State  regulates  the 
disposition  of  property  at  the  death  of  the  owner  if  the 
owner  fails  to  dispose  of  it.  And  it  may  be  noticed  that  the 
owner  may  so  fail,  not  merely  by  making  no  attempt,  but 
by  making  an  attempt  that  does  not  conform  to  law.  How, 
it  might  be  urged,  can  the  State  interfere  in  such  a  way 
except  upon  the  footing  of  ownership?  The  act  of  disposi- 
tion is  an  act  of  dominion.  If  the  State  does  not  become 
owner  at  the  time  of  the  State's  action,  then  the  State  can- 
not give  the  property,  except  by  an  exercise  of  arbitrary 
power,  which  means  robbery.  Again,  if  the  State  does  not 
acquire  ownership  at  the  death  of  the  grantee,  who  does? 
Not  ordinarily  the  next  of  kin,  in  the  case  of  personalty; 
in  most  cases l  the  State  hands  the  property  over  to  the 
executor  or  administrator.  Not  the  heir,  it  might  be  said, 
even  in  the  case  of  realty;  the  State  hands  the  property 
over  to  him.2  The  State  so  hands  the  property  over  even 
against  specific  legatees  or  devisees,  though  there  is  no  rea- 
son in  the  nature  of  things  why  the  legatees  or  devisees 
might  not  take  directly  subject  to  the  claims  of  creditors. 

1  Where,  in  the  absence  of  debts  against  the  estate,  the  property  is 
found,  after  the  late  owner's  death,  in  the  hands  of  one  who  would  be 
entitled  to  it,  one  need  not  take  out  letters  of  administration  in  order 
to  acquire  title.      That  is  probably  the  effect  of  English  statutes. 

2  The  State,  however,  hands  the  property  over  to  the  executor,  admin- 
istrator, or  heir  as  representing  the  deceased;  hence  the  State  cannot 
be  said  to  act  as  owner  in  the  transaction  except  in  so  far  as  interfering 
may  be  considered  an  act  of  dominion,  and  so  of  ownership;  with  which 
point  compare  the  law  of  trover.     The  suggestion  as  to  the  heir  is  of 
course  pure  assumption. 


75.     BIGELOW:  RISE  OF  THE  ENGLISH  WILL  773 

Another  fact  which  may  be  deemed  to  support  the  idea  of 
State  ownership  is  connected  with  what  is  called  title  by 
occupancy.  The  taking  of  really  vacant  property  would 
seem  to  give  to  the  taker  ownership  by  natural  right.  But 
we  are  told  that  "  this  right  of  occupancy,  so  far  as  it  con- 
cerns real  property  .  .  .  hath  been  confined  by  the  laws 
of  England  within  a  very  narrow  compass."  1  It  seems  to 
have  been  allowed,  in  real  property,  even  at  the  first  in  but 
a,  single  case,  namely,  in  an  estate  for  the  life  of  another 
("pur  autre  vie"),  the  tenant  dying  during  the  lifetime 
of  that  other  person  ("  cestui  que  vie").  In  such  an  event 
any  one  might  enter  upon  the  land  and  hold  it  during  the 
unexpired  period  of  the  estate,  that  is,  until  the  death  of 
"  cestui  que  vie."  But  this  right  was  reduced  almost  to 
nothing  in  the  seventeenth  century  by  statute.  That  is, 
according  to  the  view  of  State  ownership,  the  State  acted 
upon  the  principle  or  belief  that  the  ownership  had  never 
been  vacant;  the  entry  of  the  new  occupant  was  by  mere 
permission,  which  the  State  now  withdrew. 

A  more  particular  case,  looking  it  may  be  thought  towards 
State  ownership,  may  be  brought  forward.  Statutes  exist 
touching  any  right  of  adopted  children  to  inherit  property 
of  their  parents  by  blood.  Whether  such  children  can  so 
inherit  is  determined  by  statute;  the  State,  it  may  accord- 
ingly be  supposed,  gives  or  withholds.  To  the  suggestion 
that  adopted  children  have  no  "  natural  "  right  to  the  prop- 
erty of  a  deceased  parent  by  blood,  the  answer  has  been 
given  from  the  bench  that  the  suggestion  is  idle  "  for  the 
reason  that  the  statutory  right  is  perfect  and  complete"; 
lieirship  being  "not  a  natural,  but  a  statutory  right." 
Hence  the  State  may  increase  the  number  of  a  man's  heirs 
and  cut  down  the  shares  of  the  others  accordingly. 

These  are  a  few  out  of  many  like  instances  that  might  be 
mentioned;  but  all  may  be  comprehended  in  the  statement 
that  both  intestate  and  testate  disposition  of  property  is  a 
matter  of  statute;  in  other  words,  of  regulation  by  the 
State.  The  State,  it  may  therefore  be  thought,  must  be 

^lackstone,  II.  257. 

a  Wagner  v.  Wagner,  50  Iowa,  532;  Abbott's  Cases,  p.  123. 


774         IX.      WILLS,  DESCENT,  MARRIAGE 

the  owner;  and  besides,  the  State  lives  or  may  live  forever, 
or  at  any  rate  it  is  expected  to  outlive  the  life  of  individuals, 
and  therefore  fulfils  by  possibility  the  requisite  duration. 
And  the  State's  grantee  and  his  successors  have  permission 
or  appointment,  so  the  argument  would  run,  to  act  instead 
of  or  for  the  State  in  disposing  of  property  to  pass  at  their 
death.  We  have,  then,  according  to  this  theory,  State  own- 
ership, with  agency  in  the  holder  as  a  supplementary  theory 
by  which  disposition  post-mortem  is  worked  out.  Can  this 
doctrine  be  put  aside? 

The  question  may  be  answered  indirectly  in  the  course  of 
propounding  another,  and  what  appears  to  be  the  true,  the- 
ory of  law ;  which  may  be  put  thus :  In  the  case  of  intestacy 
the  State  acts  as  an  intermediary,  in  behalf  of  the  public 
welfare.  If  no  provision  for  the  disposition  of  the  property 
were  made,  the  property  at  the  death  of  the  owner  would 
become  vacant,  and  a  scramble  would  be  apt  to  follow,  the 
result  of  which  would  be  as  likely  to  be  undesirable  as  the 
contrary.  To  prevent  the  property  becoming  vacant,  the 
intestate,  accepting  a  virtual  offer  by  the  State  to  act  upon 
certain  established  terms,  to  wit,  the  intestacy  statutes,  — 
for  in  effect  these  are  only  an  offer,  —  commits  or  leaves 
the  property  to  the  State,  to  distribute  it  upon  those  terms.1 
In  this  view  the  intestate  has  a  well  founded  belief  that  the 
disposition  which  the  State  proposes  is  just  and  may  save 


1 " Occupancy,"  says  Blackstone,  II.  257,  "is  the  taking  possession 
of  those  things  which  before  belonged  to  nobody.  This  ...  is  the  true 
ground  ...  of  all  property.  .  .  .  But  when  once  it  was  agreed  that 
everything  capable  of  ownership  should  have  an  owner,  natural  reason 
suggested  that  he  who  could  first  declare  his  intention  of  appropriating 
anything  to  his  own  use,  and  .  .  .  actually  took  it  into  possession,  should 
thereby  gain  the  absolute  property  of  it;  ...  quod  nullius  est,  id 
ratione  natural!  occupanti  conceditur." 

Speaking  of  estates  pur  autre  vie,  Fry,  J.  says  that  when  such  an 
estate  "  is  given  to  a  man,  or  to  him  or  his  heirs,  the  most  he  can  take 
is  an  estate  for  his  own  life,  and  any  one  who  comes  in  after  him  takes, 
not  through  him,  but  as  occupant  of  the  estate.  Originally,  any  one 
who  pleased  was  allowed  to  scramble  for  the  occupancy  after  the  death 
of  the  first  taker,  but  this  was  found  to  be  so  inconvenient  that  he  was 
allowed  to  appoint  by  will  a  special  occupant.  But  still  every  one  who 
came  in  after  the  first  taker  came  in  as  an  occupant,  and  not  as  deriving 
title  through  him."  In  re  Barber,  18  Ch.  D.  624,  627. 

This  fairly  represents  the  state  of  things  which  the  laws  in  general 
concerning  postmortem  disposition  of  property  are  intended  to  prevent. 


75.     BIGELOW:  RISE  OF  THE  ENGLISH  WILL  775 

trouble,  and  possibly  embarrassment  and  failure;  and  expe- 
rience shows  that  in  point  of  fact  this  is  true  in  most  cases, 
where  attention  has  been  called  to  the  matter  at  all. 

In  the  case  of  testacy  it  would  seem  at  first  that  a  theory 
actually  prevails  that  the  testator,  in  disposing  of  property 
owned  by  him  absolutely,  is  disposing  of  his  own,  as  much 
as  when  he  gives  or  sells  to  take  effect  in  his  lifetime.  But 
looking  below  the  surface,  this  may  after  all  be  considered 
as  merely  concealing  a  distinction  between  ownership  and 
title.  The  idea  of  testate  disposition,  when  closely  exam- 
ined, appears  to  be  no  more  than  this,  that,  whatever  may 
be  true  of  ownership  in  the  sense  of  holding  and  enjoying, 
a  person's  title  may  run  on  after  the  death  of  the  person 
having  it,  wherever  the  grant  or  devise  is  to  him  and  his 
heirs.  Title  accordingly  means  authority  to  dispose  of;  in 
that  sense,  obviously  title  may  be  severed  from  ownership, 
and  indeed  have  no  connection  with  it. 

It  may  be  objected  that  this  is  using  the  word  title  in  a 
sense  out  of  the  ordinary,  and  making  it  do  duty  for  an  idea 
foreign  to  it.  But  that  is  not  true,  as  appears  from  the  legal 
phrase  "  right  and  title  to  convey  " ;  at  any  rate,  the  word 
is  easily  capable  of  the  meaning  given  to  it;  and  when  un- 
derstood accordingly,  it  is  consistent  with  the  fact  that  own- 
ership, in  the  sense  of  having  and  controlling  in  the  name 
of  ownership,  comes  to  an  end  with  the  owner's  death,  even 
though  he  holds  "  to  himself  and  his  heirs  forever." 

That  fact  should  be  emphasized;  one's  ownership  or  hav- 
ing necessarily  comes  to  an  end  with  death.  What  would 
then  happen  but  for  a  power  of  disposition  resting  some- 
where, where  it  could  and  ordinarily  would  be  exercised  so 
as  to  preserve  and  help  on  the  social  instinct  which  seeks 
to  draw  men  together  in  the  State,  —  that  has  already  been 
suggested.  The  property  would  become  vacant,  and,  ac- 
cording to  its  value,  a  thing  to  be  scrambled  for.  Society, 
the  very  purpose  and  product  of  the  social  instinct,  would 
be  pulled  apart  upon  the  death  of  the  first  man  having 
property  enough  to  excite  a  scramble.  To  prevent  such  a 
catastrophe  the  absolute  owner  has  "  title  "  or  authority  to 
make  a  will,  as  the  one  most  likely  to  act  in  accord  with 


776         IX.      WILLS,  DESCENT,  MARRIAGE 

the  social  instinct;  and  in  event  of  his  failure  to  act,  the 
State  exercises  the  authority. 

Thus  disposition  by  testacy  and  disposition  by  intestacy 
stand  upon  the  same  footing  and  are  expressions  of  the  same 
deep  purpose,  to  wit,  the  prevention  of  a  vacancy  and  the 
failure  of  what  is  the  very  foundation  of  society  and  order, 
the  social  instinct.  They  do  not  express  any  theory  of  State 
or  individual  ownership  of  property  forever.  The  individual 
in  the  case  of  testacy,  the  State  in  the  case  of  intestacy,  is 
an  intermediary. 

If  still  the  question  is  raised,  from  what  source  emanates 
the  authority  which  confers  ownership  upon  devisee,  legatee, 
or  distributee,  the  answer  is,  the  social  instinct.1  The  power 
of  disposition  is  conferred  upon  the  owner  or  upon  the  State ; 
it  does  not  emanate  from  either.  Nor  does  it  emanate  from 
the  social  instinct  as  fictitious  owner  of  the  property ;  the 
power  is  the  expression  of  the  social  instinct  as  a  social  and 
political  necessity.  Ownership  is  not  a  necessary  condition 
to  conferring  ownership.2  To  maintain  the  social  order, 
power  or  authority,  without  being  synonymous  with  robbery 
or  injustice,  may  act  and  confer  ownership.  So  it  does  act,, 
it  is  conceived,  in  the  matter  of  post-mortem  disposal  of 
property. 

It  does  not  make  against  this  theory  that  in  early  times,, 
among  our  Germanic  ancestors,  property  always  fell  to 
heirs  after  the  tenant's  death;  that  is,  that  a  property 
owner  could  not  make  a  will  having  any  force  or  effect  in 
regard  to  the  descent  of  the  property.  For,  to  put  the  case 
in  the  usual  way,  the  property  belonged  to  the  family,  as  a 
sort  of  corporation;  while  the  family  continued,  the  com- 
munity had  nothing  in  the  property.  It  is  a  different  way 
of  putting  it,  but  it  is  probably  true,  also,  to  say  that  the 
property  fell  from  father  to  child  rather  than,  through  a 
vacancy,  to  the  man  who  could  first  lay  his  hands  upon  it. 

1  There  lies  the  very  source  of  law;  law  is  only  the  drawing  and 
keeping  men  together  in  society,  —  the  fulfilling  of  the  social  instinct. 

2 That  was  a  "marvellous  thing"  in  the  fifteenth  century,  when  it 
was  first  seen  that  a  mere  direction  to  an  executor  to  sell  lands,  which 
belonged  by  descent  to  the  heir,  could  when  acted  upon  by  sale  confer 
ownership.  It  was  drawing  "fire  from  a  flint  when  there  was  no  fire 
in  the  flint."  Year  Book,  9  Hen.  VI.  24  b.  But  it  is  no  marvel  now. 


75.     BIGELOW:  RISE  OF  THE  ENGLISH  WILL  777 

It  was  better  that  the  late  tenant's  kin  should  have  it;  and 
the  only  interest  the  community  had  in  the  matter  was  to 
see  that  the  kin  did  have  it.  That  interest  on  the  part  of 
the  community  was,  however,  the  interest  of  self-preserva- 
tion; not  to  regard  it  would  be  to  invite  anarchy  to  tear 
society  to  pieces. 

It  is  obvious  that  the  same  was  true  in  feudal  England, 
when  the  right  to  make  wills,  admitted  and  practised  of 
goods  and  chattels,  was  cut  off  in  respect  of  land.1  Except 
as  original  source  of  right,  with  right  of  escheat  on  failure 
of  heirs,  the  State  was  not  deemed  owner,  resuming  its  own 
upon  the  death  of  the  tenant,  and  then  making  a  gift  of  the 
property  to  the  next  taker.  It  acted  then  as  before,  and  as 
at  the  present  time,  as  an  intermediary,  to  see  that  the  social 
fabric  should  not  perish.  The  transfer  made  was  a  transfer 
by  rightful  authority  or  power,  not  the  gift  of  an  owner. 

Such  appears  to  be  the  actual  theory  of  the  law.  Still 
it  is  probably  true,  as  has  already  been  observed,  that  in  the 
earlier  period  of  the  races  which  later  became  English,  wills 
were  not  in  use.  The  appearance  of  wills  in  the  Germanic 
codes  (the  Leges  Barbarorum)  of  a  later  time,  was  due  to 
contact  with  Roman  jurisprudence,  and  was  borrowed  from 
that  source  of  civilization.2  In  the  earlier  period  A's  cattle, 
upon  A's  death,  regularly  passed  to  A's  heirs,  if  he  had  any ; 
A  could  not  prevent  it.3  This  fact  directly  raises  another 
sort  of  question  which  the  theory  above  presented  naturally 
suggests,  namely:  Intestate  disposition  being  the  rule,  how 
did  disposition  by  will  come  about?  Whence  it  came  has 
already  been  noticed;  it  was  the  gift  of  Rome's  expiring 
civilization  to  Rome's  rude  conquerors,  awakened  at  last, 
by  closer  contact  with  that  civilization,  to  a  better  life.4 

1  Wills  of  land  were  lawful  and  in  constant  use  in  England  before  the 
Norman  conquest  (1066). 

2  See  Maine,  Ancient  Law,  c.  6,  p.  189 ;  Abbott,  p.  19. 

8 "When  the  phenomena  of  primitive  societies  emerge  into  light,  it 
seems  impossible  to  dispute  a  proposition  which  the  jurists  of  the  sev- 
enteenth century  considered  doubtful,  that  intestate  inheritance  is  a 
more  ancient  institution  than  testamentary  succession."  Maine,  Ancient 
Law,  c.  6,  p.  189;  Abbott,  p.  19. 

4  As  to  the  wills  in  the  Germanic  codes,  "  they  are  almost  certainly 
Roman.  The  most  penetrating  German  criticism  has  recently  been  di- 


778         IX.      WILLS,  DESCENT,  MARRIAGE 

But  how  did  the  making  of  wills  come  to  be  allowed?  Equal- 
ity, at  least  among  male  children,  and  indeed  among  daugh- 
ters in  the  absence  of  sons,  was  the  inveterate  principle  of 
the  Germans  in  their  original  abodes  north  and  east  of  the 
then  conquering  eagles  of  Rome. 1  Wills  necessarily  implied 
inequality. 

The  process  by  which  wills  came  to  be  recognized  appears 
to  have  been  as  follows.2  The  earliest  lawful  wills  of  our 
Germanic  ancestors  were  based,  it  seems,  (1)  upon  failure 
of  kindred  near  enough,  that  is,  within  the  family,  to  take 
by  the  regular  method,  intestacy;  or  they  were  (2)  gifts  of 
property  to  which  such  kindred  had  no  direct  claim.  To 
find  the  evidence  for  the  first  of  these  cases  would  take  us 
too  far  afield  into  early  Germanic  usage ;  for  evidence  of 
the  second,  it  is  not  necessary  to  go  back  to  the  earlier  home 
of  the  English  people.  It  is  still  true,  many  centuries  after 
the  migration,  in  Norman  England.  Lands  acquired  by 
inheritance  as  family  domain  were  considered  more  or  less 
like  entailed  property,  that  is,  property  in  which  the  "  heir  " 
had  a  legal  interest  in  the  lifetime  of  the  tenant,  so  that  the 
heir's  consent  was  necessary  to  any  transfer  even  inter  vivos.* 

The  words  of  inheritance  in  our  modern  deeds,  "  to  A  and 
his  heirs,"  4  were,  in  their  Latin  form,  "  et  suis  hagredibus," 
first  brought  into  use  in  England  in  the  twelfth  or  late  in 
the  eleventh  century,  following  upon  the  establishment, 
effected  towards  the  close  of  the  eleventh  century,  of  the 
(English)  feudal  tenures,  in  the  case  of  feoffments  or  gifts 
of  fiefs  or  feuds  by  lord  to  tenant.  At  the  same  time,  it  may 

rected  to  these  Leges  Barbarorum,  the  great  object  of  investigation 
being  to  detach  those  portions  of  each  system  which  formed  the  customs 
of  the  tribe  in  its  original  home  from  the  adventitious  ingredients  which 
were  borrowed  from  the  laws  of  the  Romans.  In  the  course  of  this 
process  one  result  has  invariably  disclosed  itself,  that  the  ancient  nu- 
cleus of  the  code  contains  no  trace  of  a  will.  Whatever  testamentary 
law  exists  has  been  taken  from  Roman  jurisprudence."  Maine,  ut  supra. 

1  Preserved  in   Kent   in   Gavelkind,  well   called   the   common  law  of 
Kent. 

2  See  Sir  H.  S.  Maine,  in  the  sixth  chapter  of  his  Ancient  Law;  also, 
Abbott's  Cases,  pp.  19  et  seq.,  where  Maine  is  quoted  at  length. 

3  It  is  possible,  though  but  barely  possible,  that  there  still  survived 
a  notion  of  the  family  as  a  corporation. 

*The  author  is  now  using  a  note  of  his  own  to  the  fifth  American 
edition  by  him  of  Jarman  on  Wills,  II.  332. 


75.     BIGELOW:  RISE  OF  THE  ENGLISH  WILL  779 

be  noticed,  in  immediate  connection  with  these  words  of  in- 
heritance, reciprocal  words  declaring  that  the  fief  or  feud 
was  to  be  held  of  the  feoffor  "  and  his  heirs  "  were  intro- 
duced into  the  (oral  or  written)  conveyance.  The  feoffment 
contemplated  a  relation  forever  between  the  donor  and  de- 
scendants and  the  donee  and  descendants. 

In  the  times  referred  to,  the  "  heir,"  as  we  have  said, 
deemed  himself  in  some  sort  included  in  the  original  gift 
of  the  lord,  either  as  quasi  tenant  in  tail,  or  as  having  some 
other  interest  of  which  he  ought  not  to  be  deprived  without 
his  consent.  In  other  words,  the  heir  considered  that  he 
took,  in  modern  phrase,  by  purchase.  But  the  case  was 
different  in  regard  to  lands  which  the  ancestor  had  himself 
added  to  his  estates  by  acquisition  of  his  own.1  With  prop- 
erty so  acquired  the  right  of  will-making,  in  regard  to  land, 
practically  begins. 

Testamentary  disposition  of  personalty  was  everywhere 
much  earlier,  though  not  in  western  Europe,  without  im- 
portant limitations.  In  the  latter  part  of  the  thirteenth 
century  Glanvill  tells  us  that  a  man's  goods  were  to  be  di- 

1  In  the  Custumal,  known  as  the  Laws  of  Henry  the  First,  a  book  of 
the  first  half  of  the  twelfth  century,  it  is  said  that  one  who  has  book- 
land  (land  of  inheritance  conveyed  by  writing)  from  his  "parentes" 
should  not  convey  it  away  from  his  family.  Henry  I.  c.  70,  §  21 ;  Placita 
Anglo-Normannica,  Introd.,  44,  45,  note.  In  the  reign  of  the  same 
king  (1100-1135)  a  son  confirms,  or  rather  makes  anew,  a  gift  of  land 
made  by  his  father  to  the  Church,  which  had  been  adjudged  good  against 
the  son.  Placita  Anglo-Norm.,  128,  129.  See  also  Hist.  Mon.  Abingdon, 
II.  136,  anno  1104.  About  the  year  1160  the  Abbot  of  Abingdon  sues 
a  tenant  named  Pain  "  cum  filio  quern  haeredem  habuit "  to  recover  fiefs 
forfeited,  as  alleged,  by  the  father.  Pain  "et  films  suus  "  entered  into 
a  concord  with  the  abbot,  and  so  terminated  the  suit.  These  were  cases 
of  gifts  to  the  donee  and  his  heirs. 

Writing  some  twenty-five  years  later,  Glanvill  says  that  a  man  may 
make  a  will  in  his  last  sickness,  "  with  the  consent  of  his  heir  " ;  that  he 
cannot  "without  his  heir's  consent"  give  any  part  of  his  inheritance  to 
a  younger  son;  and  that  he  cannot  disinherit  "his  son  and  heir"  even 
as  to  land  which  he  (the  father)  has  bought,  though  if  he  have  no  heir 
of  his  body  he  may  do  as  he  will  with  such  land.  But  he  may  convey 
a  reasonable  part  of  purchased  property  without  consent  of  his  bodily 
heir.  Lib.  7,  c.  1. 

This  special  relation  of  the  heir  to  his  father's  fief  did  not  long  sur- 
vive the  twelfth  century,  though  traces  of  it  appear  in  Bracton,  who 
wrote  in  the  reign  of  Henry  the  Third.  See  Lib.  2,  c.  6,  fol.  17  b.  The 
word  "  assigns,"  —  to  the  feoffee,  his  heirs  and  assigns,  —  which  greatly 
helped  alienation,  was  introduced  into  the  feudal  gift  early  in  the  thir- 
teenth or  late  in  the  twelfth  century. 


780         IX.     WILLS,  DESCENT,  MARRIAGE 

vided  into  three  equal  parts,  one  for  his  heir,  another  for  his 
widow,  the  third  to  be  at  his  own  disposal. l  If  he  died  with- 
out a  wife,  he  might  dispose  of  one  half,  the  other  half  go- 
ing to  his  children  if  any;  if  he  had  no  children,  his  wife, 
if  he  had  a  wife,  was  to  have  half;  and  if  he  died  without 
wife  or  children,  he  might  dispose  of  the  whole.  Subject  to 
differences  of  local  custom,  this  continued  to  be  true  until 
the  time  of  Charles  the  Second.2  By  this  time  personalty 
might  be  disposed  of  by  will  freely  in  the  greater  part  of 
England,3  the  claims  of  the  widow  having  continued,  how- 
ever, after  those  of  the  children  had  disappeared.  4 

The  rise  of  primogeniture  under  feudalism  in  the  Middle 
Ages  appears  to  have  created  the  occasion  and  demand  for 
testamentary  disposition.  Originally,  that  is,  before  the  fall 
of  the  Roman  Empire,  children  among  the  German  races,  as 
we  have  seen,  took  equally;  primogeniture,  which  of  course 
destroyed  all  equality,  was  a  thing  of  slow  and  gradual 
growth,  beginning  here  and  there  with  the  feudal  tie  among 
the  conquerors  of  Rome,  and  finally  spreading  over  Europe ; 
though  not  without  admitting  in  various  places  some  dif- 
ferent custom,  such  as  borough  English,  the  converse  of 
primogeniture,  but  equally  fatal  to  the  idea  of  equality 
among  the  children.  And  now,  "  as  the  feudal  law  of  land 
practically  disinherited  all  the  children  in  favor  of  one,  the 
equal  distribution  even  of  those  sorts  of  property  which 
[still]  might  have  been  equally  divided  ceased  to  be  viewed 
as  a  duty."  5  And  the  way  to  carry  out  the  owner's  wishes, 

1Glanvill,  Lib.  7,  c.  5.  See  Magna  Charta  of  John  (A.  D.  1216),  c. 
26,  of  Henry  III.,  1216,  c.  21,  121 T,  c.  22,  1224,  c.  18;  Bracton,  60  b; 
Fleta,  Lib.  2,  c.  57,  §  10.  So  some  fifteen  years  before  Glanvill,  in  the 
Constitutions  of  Cashel,  c.  6  (A.  D.  1172),  introducing  English  law  into 
Ireland;  but  saying  "children"  where  Glanvill  says  "heir."  Giraldus 
Cambrensis,  Conquest  of  Ireland,  Lib.  1,  c.  xxxiv.  Magna  Charta,  Brac- 
ton and  Fleta,  ut  supra,  and  Regiam  Maj.,  Lib.  2,  c.  37,  also  say  "chil- 
dren" instead  of  "heir."  This  casts  a  doubt  upon  the  text  of  Glanvill; 
is  it  likely  that  primogeniture  made  such  a  great  advance  as  that  indi- 
cated by  Glanvill,  within  a  few  years,  and  then,  within  another  short 
time,  fell  back  to  its  old  position? 

8  See  Blackstone,  II.  491. 

8  The  older  usage  of  the  common  law,  in  favor  of  the  widow  and 
children,  prevailed  longer  in  Wales,  in  the  province  of  York,  and  in 
London.  Ibid. 

4  Maine,  Ancient  Law,  c.  7,  p.  217;  Abbott,  p.  26. 

6  Maine,  c.  7,  p.  217. 


75.     B1GELOW:  RISE  OF  THE  ENGLISH  WILL   781 

as  a  practical  matter  of  method,  was  pointed  out  by  Roman 
jurisprudence  and  usage.  The  clergy  produced  the  Roman 
will,  and  used  it  as  a  model  for  the  purpose  in  hand.  The 
will  has  accordingly  been  called  "  an  accidental  fruit  of 
feudalism." 

It  should  be  added  that  primogeniture  did  not  come  into 
full  operation  in  England  until  after  the  Norman  conquest. 
On  the  Continent,  however,  it  had  gained  full  sway  much 
earlier;  hence  we  must  turn  to  the  Continent,  as  we  have 
done,  to  find  the  statement  true  that  testamentary  disposi- 
tion was  due  to  primogeniture.2 

1Ibid.  On  the  various  stages  of  the  English  will,  see  Pollock  and 
Maitland's  History  of  the  English  Law,  II,  312-353.  That  subject  is 
beyond  the  present  purpose. 

8  Wills  still  appear  to  have  a  close  connection  in  England  with  the 
position  of  the  eldest  son.  It  is  stated  that  wills  are  frequently  used 
there  to  aid  or  imitate  that  preference  for  the  eldest  son  and  his  line 
which  is  a  general  feature  in  marriage  settlements  of  land.  Maine,  ut 
supra.  For  the  process  and  stages  by  which  primogeniture  came  about, 
the  reader  is  referred  to  the  passages  in  the  chapter  in  Maine's  Ancient 
Law,  above  cited,  and  to  the  extracts  from  the  same  in  Abbott's  Cases, 
pp.  26-28. 


76.     MARRIAGE    AND    DIVORCE    UNDER    ROMAN 
AND    ENGLISH    LAW1 

BY  JAMES  BRYCE  2 

I.  Introductory 

IN  all  communities  that  have  risen  out  of  the  savage  state, 
no  legal  institution  is  at  once  so  universal,  and  also  so 
fundamental,  a  part  of  their  social  system  as  is  Marriage. 
None  affects  the  inner  life  of  a  nation  so  profoundly,  or  in 
so  many  ways,  ethical,  social,  and  economic.  None  has  ap- 
peared under  more  various  forms,  or  been  more  often  modi- 
fied by  law,  when  sentiment  or  religion  prescribed  a  change. 
In  a  famous  passage  which  has  been  constantly  quoted,  and 
often  misunderstood,  Ulpian  takes  marriage  as  the  type  of 
those  legal  relations  which  are  prescribed  by  the  Law  of 
Nature,  and  extends  that  Law  so  far  as  to  make  it  govern 
the  irrational  creatures  as  well  as  mankind.  If  then  the 
relation  be  so  eminently  natural,  one  might  expect  it  to  be 
also  uniform.  Yet  it  so  happens  that  there  is  no  relation 
with  which  custom  and  legislation  have,  in  different  peoples 
and  at  different  times,  dealt  so  differently.  Nature  must 
surely  have  spoken  with  a  very  uncertain  voice  when,  as  the 
jurist  says,  she  '  taught  this  law  to  all  animals.'  Nor  does 
this  infinite  diversity  show  signs  of  disappearing.  While  in 
most  branches  of  law  the  progress  of  parallel  development 
in  various  civilized  states  is  a  progress  towards  uniformity, 

lfThis  Essay  was  published  in  "Studies  in  History  and  Jurispru- 
dence," 1901  (London  and  New  York:  Oxford  University  Press),  pp. 
782-833,  856-859,  being  part  of  Essay  XVI  in  that  work. 

2  A  biographical  note  of  this  author  is  prefixed  to  Essay  No.  10,  in 
Volume  I*  of  this  Collection. 


76.     BRYCE:  MARRIAGE  AND  DIVORCE    783 

so  that  the  commercial  law,  for  instance,  of  the  chief  Euro- 
pean countries  and  of  the  United  States  is,  as  respects  nine- 
teen-twentieths  of  its  substance,  practically  identical,  the 
laws  of  these  same  countries  are,  in  what  relates  to  the  forms 
of  contracting  marriage,  the  effect  of  marriage  upon  prop- 
erty rights,  the  grounds  for  dissolving  and  modes  of  dis- 
solving marriage,  extremely  different,  and  apparently  likely 
to  remain  different.  Even  within  the  narrow  limits  of  the 
United  Kingdom,  England  and  Scotland  have  each  its  own 
system.  Ireland  has  a  different  law  from  England  in  respect 
of  the  mode  of  solemnization ;  while,  as  respects  divorce, 
the  divergence  goes  so  far  that  grounds  are  recognized  as 
sufficient  for  divorce  in  Scotland  which  are  not  admitted  in 
England,  while  in  Ireland  a  divorce,  except  by  private  Act 
of  Parliament,  cannot  be  obtained  at  all.  And  the  efforts 
to  assimilate  these  three  diverse  systems  made  by  reformers 
during  two  or  three  generations  have  been  followed  by  so 
little  practical  result  that  they  have  been  of  late  years  alto- 
gether dropped. 

Out  of  the  long  and  obscure  and  intricate  history  of  the 
subject,  and  out  of  the  many  still  unsolved  problems  it  pre- 
sents, I  propose  to  select  one  subject  for  discussion,  viz. 
the  history  of  the  Roman  law  of  the  marriage  relation,  as 
compared  with  the  English  law,  and  particularly  with  some 
of  the  later  developments  of  English  law  in  the  United 
States.  On  the  antiquities  of  the  matter,  and  in  particular 
on  the  interesting  and  difficult  questions  relating  to  primi- 
tive forms  of  marriage,  and  to  the  polyandry  which  is  sup- 
posed to  have  marked  the  earlier  life  of  many  peoples,  I 
shall  not  attempt  to  touch.  Neither  can  I  do  more  than 
glance  at  the  ecclesiastical  history  of  the  institution,  impor- 
tant as  the  church  has  been  in  influencing  civil  enactments 
and  moulding  social  sentiment. 

To  elucidate  the  Roman  system,  some  few  technical  details 
must  be  given,  but  I  shall  confine  myself  to  those  which  are 
needed  in  order  to  facilitate  a  comparison  between  it  and 
that  of  England,  and  to  show  how  essentially  the  later 
Roman  conception  of  the  relation  differed  from  that  which 
Christianity  created  in  mediaeval  Europe. 


784         IX.     WILLS,  DESCENT,  MARRIAGE 

II.  Character  of  Marriage  in  Early  Law 

When  clear  light  first  breaks  upon  the  ancient  world 
round  the  Mediterranean  Sea  we  find  that  the  relation  of 
the  sexes  exists  in  three  forms.  The  most  savage  tribes, 
such  as  those  which  Herodotus  saw  or  heard  of  in  Libya 
and  Scythia,  have  no  regular  marriage  at  all.  Some  lived 
in  a  kind  of  promiscuity ;  some  were  probably  polyandrous. 
The  Eastern  peoples  —  Persians,  Lydians,  Babylonians,  and 
so  forth  —  are  polygamous,  as  was  Israel  in  the  days  of 
Moses  and  Solomon,  though  in  a  much  lesser  degree  after 
the  Captivity,  and  as  was  the  Trojan  Priam  of  the, Homeric 
poems.  The  Western  peoples,  and  especially  the  Greeks 
and  the  Italians,  were,  broadly  speaking,  monogamous,  al- 
though concubinage  superadded  to  lawful  marriage,  espe- 
cially among  the  Greeks,  was  not  unknown.  The  contrast 
of  the  East  and  the  West  was  marked;  and  this  particular 
difference  was  not  only  characteristic  but  momentous,  since  it 
presaged  a  different  course  for  the  social  development  of  the 
two  regions.1  So  when  the  Teutonic  and  Celtic  peoples  came 
later  on  the  stage,  they  too  were  generally  monogamous, 
though  among  the  heathen  Celts  the  tie  seems  to  have  been 
somewhat  looser  than  among  the  Teutons,  and  a  plurality 
of  wives  may  have  been  not  uncommon  in  heathen  times. 
Tacitus,  while  dwelling  on  the  sanctity  of  German  marriages, 
observes  that  occasionally  the  chieftains  had  more  than  one 
wife,  owing  to  the  wish  of  other  families  for  alliance  with 
them.2  Polygamy  slowly  died  out  of  the  East  under  Roman 
rule,  though  possibly  never  quite  extinguished,  for  we  find 
prohibitions  of  it  renewed  by  the  Emperors  down  to  Dio- 
cletian, before  whose  time  all  subjects  had  become  citizens. 
It  maintained  itself  in  the  Oriental  court  of  the  Sassanid 
kings  of  Persia,  and  was  indeed  one  of  the  features  of  Per- 
sian life  which  most  shocked  the  philosophers  of  the  later 
Roman  Empire.  As  there  is  no  trace  of  it  in  the  Roman 


1  Euripides  (Androm.  w.  173-180)  contrasts  the  marriage  usages  of 
barbarians  and  Greeks,  and  dilates  (cf.  v.  465  sqq.)  on  the  evils  of 
polygamy. 

»Tac.  Germ.  c.  xvii. 


76.     BRYCE:  MARRIAGE  AND  DIVORCE    785 

law,1  it  need  not  concern  us  further,  since  it  has  never,  ex- 
cept in  the  singular  instance  of  the  Mormons,  reappeared 
in  any  of  the  communities  which  have  been  regulated  either 
by  Roman  or  by  Teutonic  law.2 

Before  describing  the  Roman  system,  let  us  note  three 
general  features  which  belong  to  the  marriage  customs,  not 
indeed  of  all,  but  certainly  of  most  peoples  in  the  earlier 
stages  of  civilization.  They  are  worth  noting,  because  they 
constitute  the  central  threads  of  the  history  of  the  relation 
during  civilized  times. 

(1)  The  marriage  tie  has  more  or  less  of  a  religious  or 
sacred   character,   being   generally   entered   into   with   rites 
or  ceremonies  which  place  it  under  supernatural  sanctions. 
This  is,  of  course,  more  distinctly  the  case  where  monogamy 
prevails. 

(2)  In   the   marriage   relation   the  husband   has   a   pre- 
dominant position  both  as  regards  control  over  the  person 
and  conduct  of  the  wife,  and  as  regards  property,  whether 
that  which  was  hers  or  that  which  was  brought  into  common 
stock  by  her  and  by  him. 

(3)  The  tie  is  comparatively  easy  of  dissolution  by  the 
husband,  less  easily  dissoluble  by  the  wife.     This  is  a  natural 
consequence  of  the  inferior  position  which  she  holds  in  early 
society. 

Although  these  three  features  are  generally  characteristic 
of  the  earlier  stages  of  family  law,  they  are  not  universally 
present;  and  their  presence  or  absence  in  any  given  com- 
munity does  not  necessarily  coincide  with  a  lower  or  higher 
scale  of  civilization  in  that  community.  The  temptation  to 
generalize  in  these  matters  is  natural,  but  it  is  dangerous. 
True  as  may  seem  the  general  proposition,  that  the  higher 
or  lower  position  of  women  in  any  society  is  a  pretty  good 
index  to  the  progress  that  society  has  made,  there  are  too 
many  exceptions  to  the  rule  for  us  to  take  it  as  a  point  of 


1  Although  Julius  Caesar,  if  we  may  credit  Suetonius,  caused  a  meas- 
ure to  be  drafted  for  enabling  him  to  marry  as  many  wives  as  he  liked 
for  the  sake  of  having  legitimate  issue  (Suet.  Julius,  c.  52). 

2  Among  the  Jews  it  was    (though  forbidden  by  Roman  law)    not 
formally  abolished  till  the  tenth  century. 


786         IX.     WILLS,  DESCENT,  MARRIAGE 

departure  for  inquiry.     Nor  can  these  exceptions  be  always 
accounted  for  by  any  one  cause,  such  as  race  or  religion. 


III.  The  Earlier  Form  of  Roman  Marriage  Law 

Now  let  us  come  to  the  Romans,  of  whom  we  may  say 
that  it  is  they  who  have  built  up  the  marriage  law  of  the 
civilized  world,  partly  by  their  action  as  secular  rulers  in 
pagan  times,  partly  by  their  action  as  priests  in  Christian 
times.  The  other  modifying  elements,  and  particularly  the 
Hebrew  and  Teutonic  influences,  which  have  worked  upon 
the  marriage  laws  of  Christendom,  are  of  quite  inferior 
moment. 

Roman  law  begins  with  two  phenomena  which  seem  at 
first  sight  inconsistent.  One  is  the  complete  subjection  of 
the  wife  to  the  husband  on  the  legal  side,  as  regards  both 
person  and  property.  The  other  is  her  complete  equality 
on  the  social  and  moral  side,  as  regards  her  status  and  the 
respect  paid  to  her. 

In  describing  the  nature  of  this  subjection,  one  must 
make  it  clearly  understood  that,  strictly  speaking,  it  was 
not  by  the  mere  fact  of  marriage,  that  is  to  say,  by  the  legal 
act  necessary  to  constitute  marriage,  that  a  woman  entered 
that  position  of  absolute  absorption  into  the  legal  personal- 
ity of  her  husband  which  is  so  remarkable  a  feature  of  the 
old  law.  Whatever  may  have  been  the  case  in  prehistoric 
times,  we  find  that  at  the  time  when  the  Twelve  Tables  were 
enacted  (B.  c.  449)  a  marriage  could  be  contracted  without 
any  forms  or  ceremonies  whatever,  by  the  sole  consent  of 
the  parties ;  and  that,  where  this  was  the  case,  the  husband 
did  not  acquire  any  power  over  the  wife,  and  the  latter  re- 
tained whatever  property  she  previously  possessed.  It  was 
therefore  not  marriage  per  se  that  created  the  power  of  the 
husband,  for  a  woman  might  be  legally  married  and  not 
be  under  the  marital  power.  But  although  this  '  free  mar- 
riage,' as  we  may  call  it  (the  term  is  not  Roman,  but  in- 
Tented  by  modern  jurists),  was  legally  possible,  the  custoi 
and  in  old  days  the  almost  invariable  custom,  of  the  peopl 
was  to  add  to  the  marriage  a  ceremony  not  essential  to  its 


76.     BRYCE:  MARRIAGE  AND  DIVORCE    787 

validity  as  a  marriage,  but  one  which  had  important  legal 
consequences.  We  may  safely  assume  that  there  was  orig- 
inally no  true  marriage  without  the  ceremony,  but  at  the 
time  of  the  Twelve  Tables  this  was  no  longer  the  case.  The 
ceremony  created  a  relation  which  the  Romans  called  Hand 
(manus),  and  brought  the  wife  into  her  husband's  power, 
putting  her,  so  far  as  legal  rights  went,  in  the  position  of 
a  daughter  (filiae  loco).  It  gave  the  husband  all  the  prop- 
erty she  had  when  she  married.  It  entitled  him  to  all  she 
might  acquire  afterwards,  whether  by  gift  or  by  her  own 
labour.  It  enabled  him  to  command  her  labour,  and  even 
to  sell  her,  though  the  sale  neither  extinguished  the  mar- 
riage nor  made  her  a  slave,  but  merely  enabled  the  purchaser 
to  make  her  work,  while  still  requiring  him  to  respect  her 
personal  rights.1  In  compensation  for  these  disadvantages 
the  wife  became  entitled  to  be  supported  by  her  husband, 
and  to  receive  a  share  of  his  property  at  his  death,  as  one 
of  the  'family  heirs'  (sui  heredes),  whom  he  could  disin- 
herit only  in  a  formal  way.  She  had  by  coming  under  his 
Hand  passed  out  of  her  original  family,  and  lost  all  right 
by  the  strict  civil  law  to  share  in  the  inheritance  of  her 
father. 

There  were  two  forms  of  ceremony  by  which  this  power 
of  the  Hand  could  be  created.  One,  probably  the  older,  had 
a  religious  character.  It  took  place  in  the  presence  of  the 
chief  pontiff,  and  its  main  feature  was  a  sacrifice  to  Jupiter, 
with  the  eating  by  the  bride  and  bridegroom  of  a  cake  of 
a  particular  kind  of  corn  (far),  whence  it  was  called  con- 
farreatio.  It  was  originally  confined  to  members  of  the 
patrician  houses.  The  other  was  a  purely  civil  act,  and 
consisted  in  the  sale  by  the  bride  of  herself,  with  the  approval 
of  her  father  or  her  guardian  (as  the  case  might  be),  to 
the  bridegroom,  apparently  accompanied  (though  there  ist 
a  controversy  on  this  point)  by  a  contemporaneous  sale  by 
the  bridegroom  of  himself  to  the  bride.  The  transaction 
was  carried  out  with  certain  formal  words  and  in  the  pres- 

1Some  writers  doubt  whether  this  power  of  sale  existed,  and  refer 
to  a  supposed  'law  of  Romulus'  mentioned  by  Plutarch  which  devoted 
to  the  infernal  gods  whoever  sold  his  wife.  But  the  balance  seems  to 
incline  in  favour  of  the  existence  of  the  power. 


788         IX.     WILLS,  DESCENT,  MARRIAGE 

ence  of  five  witnesses  (being  citizens),1  besides  the  man  who 
held  the  scales  with  which  the  money  constituting  the  price 
was  supposed  to  be  weighed.  The  price  was  of  course  nom- 
inal, though  it  had  in  very  early  times  been  real. 

These  two  forms  have  been  frequently  spoken  of  as  if  they 
were  indispensable  forms  of  marriage,  so  that  marriage  had 
always  the  Hand  power  as  its  consequence.  But  this,  though 
it  may  probably  have  been  the  case  in  very  early  days,  was 
not  so  in  those  historical  times  to  which  I  must  confine  my- 
self. And  the  proof  of  this  may  be  found  in  the  fact  that  if 
a  woman  was  married  without  either  of  the  above  forms, 
she  did  not  pass  into  the  Hand  of  her  husband  unless  or  until 
I/  she  had  lived  with  him  for  a  year,  and  not  even  then  if  she 
had  absented  herself  from  his  house  for  three  continuous 
nights  during  that  year.2  And  where  the  Hand  power  had 
not  been  created,  the  property  rights  of  the  wife,  whatever 
they  were,3  remained  unaffected  by  the  marriage.  The 
period  of  three  nights  is  fixed  in  the  Twelve  Tables,  possibly 
as  a  precise  definition  of  a  custom  previously  more  uncertain. 

This  was  the  old  Roman  system,  and  a  very  singular 
system  it  was,  because  it  placed  side  by  side  the  extreme 
of  marital  control  as  the  normal  state  of  things  and  the 
complete  absence  of  that  control  as  a  possible  state  of  things. 
Doubtless  the  marriages  with  Hand  were  in  early  days  prac- 
tically universal,  resting  upon  a  sentiment  and  a  social 
usage  so  strong  that  women  themselves  did  not  desire  the 
free  marriage,  which  would  put  them  in  an  exceptional  posi- 
tion, outside  the  legal  family  of  the  husband.  Nor  can  we 
doubt  that  the  wide  power  which  the  law  gave  to  the  hus- 
band was  in  point  of  fact  restrained  within  narrow  limits, 
not  only  by  affection,  but  also  by  the  vigilant  public  opinion 
of  a  comparatively  small  community. 

1  There  has  been  much  dispute  as  to  this  ceremony:  I  give  what  seems 
the  most  probable  view.     It  may  descend  from  a  more  ancient  sale  of 
the  wife  by  her  relatives  to  the  husband,  similar  to  that  which  we  find 
in  some  primitive  peoples. 

2  This  was  in  pursuance  of  the  general  rule  that  rights  over  a  movable 
Tvere  acquired  by  a  year's  continuous  holding:  'usus  auctoritas  fundi 
biennium,  caeterarum  rerum  annuus  esto.' 

3  If  she  was  in  the  power  (potestas)  of  her  father,  she  had  no  pi 
<erty  of  her  own.    If  she  was  sui  iuris,  she  was  under  guardianship. 


76.     BRYCE:  MARRIAGE  AND  DIVORCE    789 

IV.  Change  from  the  Earlier  to  the  Later  System  at  Rome 

Before  the  close  of  the  republican  period  the  rite  of  con- 
far reatio  practically  died  out,  or  was  referred  to  as  an  old- 
world  curiosity,  much  as  a  modern  English  lawyer  might 
refer  to  the  power  of  excommunication  possessed  by  ecclesi- 
astical authorities.  The  patrician  houses  had  become  com- 
paratively few,  and  the  daughters  of  those  that  remained 
evidently  did  not  wish  to  come  under  the  Hand  power.1  The 
form  of  coemptio,  which  all  citizens  might  use,  lasted  longer, 
and  seems  to  have  been  not  infrequently  applied  in  Cicero's 
time.  Two  centuries  later  it  also  was  vanishing,  and  Gaius 
tells  us  that  the  rule  under  which  uninterrupted  residence 
created  the  husband's  power  of  Hand,  and  might  be  stopped 
by  the  wife's  three  nights'  absence,  had  completely  disap- 
peared (Gai  Inst.  i.  111).  So  we  may  say  broadly  that  from 
the  time  of  Julius  Caesar  onwards  the  marriage  without 
Hand  had  become  the  rule,  while  from  the  time  of  Hadrian 
onwards  the  legal  acts  that  had  usually  accompanied  mar- 
riage, which  placed  the  wife  under  the  husband's  control, 
were  almost  obsolete. 

This  was  a  remarkable  change.  The  Roman  wife  in  the 
time  of  the  Punic  Wars  had,  with  rare  exceptions,  been 
absolutely  subject  to  her  husband.  She  passed  out  of  her 
original  family,  losing  her  rights  of  inheritance  in  it.  Her 
husband  acquired  all  her  property.  He  could  control  her 
actions.  He  sat  as  judge  over  her,  if  she  was  accused  of 
any  offence,  although  custom  required  that  a  sort  of  council 
of  his  and  her  relatives  should  be  summoned  to  advise  him 
and  to  see  fair  play.  He  could  put  her  to  death  if  found 
guilty.  He  could  (apparently)  sell  her  into  a  condition 
practically  equivalent  to  slavery,  and  could  surrender  her 
to  a  plaintiff  who  sued  him  in  respect  of  any  civil  wrong 
she  had  committed,  thereby  ridding  himself  of  liability.  One 

1  Nevertheless  it  was  retained  in  a  few  families  for  the  purpose  of 
providing  persons  who  could  hold  four  great  priestly  offices,  since  by 
ancient  usage  none  save  those  born  from  a  marriage  with  confarreation 
were  able  to  serve  these  priesthoods.  But  its  operation  seems  to  have 
been  restricted  by  a  decree  of  the  senate  so  as  to  apply  only  so  far  as 
Religious  rites  were  concerned  (quoad  sacra)  (Gai  Inst.  i.  136). 


790         IX.      WILLS,  DESCENT,  MARRIAGE 

can  hardly  imagine  a  more  absolute  subjection  to  one  person 
of  another  person  who  was  nevertheless  not  only  free  but 
respected  and  influential,  as  we  know  that  the  wife  in  old 
Rome  was.  It  would  be  difficult  to  understand  how  such  a 
system  worked  did  we  not  know  that  manners  and  public 
opinion  restrain  the  exercise  of  legal  rights. 

Such  was  the  old  practice.  Under  the  new  one,  universal 
in  the  time  of  Domitian  and  Trajan,  which  is  also  the  time 
of  Tacitus,  Juvenal  and  Martial,  the  Roman  wife  was  abso- 
lutely independent  of  her  husband,  just  as  if  she  had  re- 
mained unmarried.  He  had  little  or  no  legal  power  of  con- 
straint over  her  actions.  Her  property,  that  which  came 
to  her  by  gift  or  bequest  as  well  as  that  which  she  earned, 
remained  her  own  to  all  intents  and  for  all  purposes.  She 
did  not  enter  her  husband's  family,  and  acquired  only  a  very 
limited  right  of  intestate  succession  to  his  property. 

This  striking  contrast  may  be  explained  by  the  fact  that 
the  disabilities  which  attached  to  the  wife  under  the  old 
system  were  not  in  legal  strictness  the  consequence  of  mar- 
riage itself,  but  of  legal  acts  which  an  almost  universal  sen- 
timent and  custom  had  attached  to  marriage,  though  in 
themselves  acts  distinct  from  it.  A  perfectly  valid  marriage 
could  exist  without  these  legal  acts,  and  so  far  back  as  our 
authorities  carry  us,  we  find  that  a.  few,  though  probably 
originally  only  a  very  few,  marriages  did  take  place  without 
them.  Accordingly  when  sentiment  changed,  and  custom  no 
longer  prescribed  the  use  of  confarreation  or  coemption, 
the  power  of  Hand  vanished  of  itself  and  vanished  utterly. 
Had  it  been  an  essential  part  of  the  marriage  ceremony,  it 
would  doubtless  have  been  by  degrees  weakened  in  force 
and  accommodated  to  the  ideas  of  a  new  society.  But  no 
legislation  was  needed  to  emancipate  the  wife.  The  mere 
omission  to  apply  one  or  other  of  the  old  concomitants 
gave  the  marriage  relation  all  the  freedom  the  partic 
could  desire  and  perhaps  more  than  was  expedient  foi 
them. 

We  may  now  dismiss  these  ancient  forms  and  address  oui 
selves  to  the  position  of  the  wife  under  the  normal  marria^ 
of  later  times  —  the  so-called  '  free  marriage,'  since  this 


76.     BRYCE:  MARRIAGE  AND  DIVORCE    791 

the  form  in  which  the  Roman  institution  descended  to  and 
has  affected  modern  law.1 

V.  Later  Marriage  Law:   Personal  Relation  of  the  Consorts. 

The  following  points  deserve  to  be  noted  as  characterizing; 
the  Roman  view. 

The  act  whereby  marriage  was  contracted  was  a  purely- 
private  act.  No  intervention  of  any  State  official,  no  regis- 
tration or  other  public  record  of  any  sort  was  required.  The 
two  parties,  and  the  two  parties  only,  were  deemed  to  be  con- 
cerned. 2 

The  act  was  a  purely  civil  act,  to  which  no  religious  or 
ecclesiastical  rite  was  essential  either  in  heathen  or  in  Chris- 
tian times.  There  were  indeed  what  may  be  called  decorative 
ceremonies,  some  of  which  we  find  mentioned  in  poems  like 
the  famous  Epithalamium  of  Catullus,  but  they  had  no  more 
to  do  with  the  legal  nature  and  effect  of  the  matter  than  has 
the  throwing  of  old  shoes  or  rice  at  a  modern  English  wed- 
ding. 

The  act  required  no  prescribed  form.  It  consisted  solely 
in  the  reciprocally  expressed  consent  of  the  parties,  which 
might  be  given  in  any  words,  or  be  subsequently  presumed 
from  facts.  '  Marriage  is  contracted  by  consent  only  * 
(nuptiae  solo  consensu  contrahuntur)  is  the  invariable 
Roman  maxim.  Even  the  conducting  of  the  bride  to  the 
bridegroom's  house,  which  has  sometimes  been  represented  as 
necessary,3  seems  to  have  been  regarded  rather  as  evidence 

1 1  pass  by  the  distinction  between  iustae  nuptiae,  which  could  be 
contracted  only  between  Roman  citizens,  and  the  so-called  '  natural ' 
marriage,  or  matrimonium  iuris  gentium,  which  was  created  by  the 
marriage  of  a  full  citizen  to  a  half  citizen  or  an  alien  (peregrinus), 
because  the  latter  is  of  no  consequence  for  our  purpose,  and  practically 
disappeared  when  all  Roman  subjects  became  citizens.  It  was  a  per- 
fectly valid  marriage,  and  the  children  were  legitimate.  As  to  their 
status,  see  Gaius,  Inst.  i.  78,  79. 

2  Where  either  party  was  subject  to  the  paternal  power  of  his  or  her 
father  (or  grandfather),  the  consent  of  the  father  (or  grandfather) 
(or  both)  was  required,  though  in  a  few  specified  cases  it  might  be 
either  dispensed  with  or  compelled.  This  was  a  consequence  of  the 
Roman  family  system.  It  was  irrespective  of  the  age  of  bride  or  bride- 
groom. 

8  The  Emperor  Majorian  (A.  D.  455-461)  is  said  to  have  issued  a  con- 
stitution for  the  Western  Empire,  making  the  creation  of  a  dos  essen- 


792         IX.     WILLS,  DESCENT,  MARRIAGE 

needed  in  certain  cases  than  as  essential  to  the  validity  of 
the  act.1  A  generally  prevalent  usage  made  a  formal  be- 
trothal (sponsalia)  precede  the  actual  wedding.  But  the 
betrothal  promise  created  no  legal  right.  No  action  lay 
upon  it,  such  as  that  which  English  and  Anglo-American 
law  unfortunately  allows  to  be  brought  for  breach  of  prom- 
ise of  marriage.  In  early  times  formal  and  binding  stipu- 
lations seem  to  have  been  often  made  on  each  side  between 
the  bridegroom  and  the  father  (or  other  male  relative)  of 
the  bride  for  the  giving  and  receiving  of  the  bride;  and  if 
the  promise  were  broken  without  sufficient  cause,  an  action 
lay  against  the  party  in  fault  for  the  worth  of  the  marriage. 2 
This,  however,  disappeared.  Under  the  influence  of  a  more 
refined  sentiment,  not  only  could  no  promise  of  marriage 
be  enforced,  but  if  the  parties  made  a  contract  whereby  each 
bound  him  or  herself  to  the  other  in  a  penal  sum  to  become 
payable  in  case  of  breach,  such  a  provision  was  held  to  be 
disgraceful  (pactum  turpe)  as  well  as  invalid.  This  was 
the  law  of  later  republican  and  imperial  times.  Betrothal 
had,  however,  some  legal  effects.  It  entitled  either  of  the 
betrothed  parties  to  bring  an  action  for  an  injury  (of  an 
insulting  nature)  offered  to  the  other.  It  rendered  any  one 
infamous  who  being  betrothed  to  one  person  contracted  be- 
trothal to  another.  It  entitled  either  party,  if  the  espousal 
was  broken  off  before  marriage,  to  reclaim  whatever  gifts 
he  or  she  might  have  bestowed  upon  the  other. 

As  regards  personal  status,  the  wife  acquired  that  of  her 
husband  (unless  either  had  been  formerly  a  slave),  and  his 
domicil  became  hers.  In  the  old  days  of  Hand  power  she 
had  taken  the  name  of  his  gens,  but  now  she  retained  her 

tial  to  the  validity  of  a  marriage;  but  this  provision,  which  can  hardly 
have  been  intended  to  be  general,  seems  to  have  never  taken  effect. 
The  Western  Empire  was  then  in  the  throes  of  dissolution. 

1  See  Paul.,  Sent.  Precept,  xix.  8 ;  Dig.  xxii.  2.  5.  The  suggestion  which 
may  be  found  in  some  modern  writers  that  Marriage  fell  within  the 
class  of  the  contracts  created  by  the  delivery  of  an  object  (the  so-called 
Real  Contracts),  has  no  Roman  authority  in  its  favour,  and  is  indeed 
based  on  a  misconception  of  the  nature  of  those  four  contracts,  in  all 
of  which  the  obligation  created  is  for  the  restoring  of  the  object  de- 
livered. Marriage  is  assuredly  not  a  bailment. 

2 This  was  at  any  rate  a  usage  among  the  Latins;  but  how  far  in 
Rome  seems  doubtful. 


76.     BRYCE:  MARRIAGE  AND  DIVORCE    793 

own,  besides  her  personal  '  first  name '  (praenomen)  (e.  g. 
Tertia).1  Each  spouse  being  interested  in  the  character  and 
reputation  of  the  other,  he  could  sue  for  damages  if  any 
insult  was  offered  to  her,  she  for  insult  to  him.  He  is  bound 
to  support  her  in  a  manner  suitable  to  their  rank,  whatever 
her  private  means  may  be.  Though  each  can  bring  an  ac- 
tion against  the  other,  the  action  must  not  be  one  which 
affects  personal  credit  and  honour  (actio  infamans),  and 
hence,  though  each  has  his  and  her  own  property,  neither 
can  proceed  against  the  other  by  a  civil  action  of  theft,  even  if 
the  property  seized  was  seized  in  contemplation  of  a  divorce.2 
It  need  hardly  be  added  that  if  the  wife's  father,  or  grand- 
father, were  living,  she  would  remain,  unless  she  had  been 
emancipated,  subject  to  the  paternal  power,  being  for  all 
legal  purposes  a  member  of  her  original  family  and  not  of 
her  husband's.  But  the  person  in  whose  power  she  is  can- 
not (at  least  in  imperial  days)  take  her  away  from  her  hus- 
band. Antoninus  Pius  forbade  a  happy  marriage  to  be 
disturbed  by  a  father;  and  in  the  third  century  (perhaps 
earlier)  the  husband  could  proceed  by  way  of  interdict  to 
compel  a  father  to  restore  his  wife  to  him.3 

VI.  Later  Law.     Pecuniary  Relations  of  the  Consorts 

This  curiously  detached  position  of  the  two  consorts  ex- 
pressed itself  in  their  pecuniary  relations.  Each  had  com- 
plete disposal  of  his  or  her  property  by  will  as  well  as  during 
life,  though  the  wife  needed,  down  to  a  comparatively  late 
time,  the  authority  of  her  guardian. 4  Neither  had  originally 
any  right  of  succession  to  the  other  in  case  of  intestacy,  nor 
had  the  wife  any  right  of  intestate  succession  to  her  chil- 

1  Under  the  Empire  we  usually  find  women  using  two  names,  from 
their  father's  gens  and  family    (e.g.  Caecilia  Metella).     Sometimes,  it 
would  seem,  the  name  of  the  father's  gens  was  followed  by  one  taken 
from  the  mother  (e.g.  lunia  Lepida,  Annaea  Faustina").     The  subject 
is  fully  discussed  by  Mommsen,  in  his  Romisches  Staatsrecht. 

2  A  special  action  (rerum  amotarum)  was  given  in  this  case.     Some 
jurists  held  that  the  joint  enjoyment  of  household  goods  made  the  con- 
ception of  Theft  inapplicable  to  a  wife's  dealings,  however  unauthorized, 
with  her  husband's  property.     Dig.  xxv.  2.  1. 

8  Dig.  xliii.  30.  2. 

*  The  guardianship  of  women  of  full  age  seems  to  have  died  out  after 
women  received  power  to  select  a  guardian  for  themselves,  a  change 
which  of  course  made  his  action  purely  formal. 


794         IX.      WILLS,  DESCENT,  MARRIAGE 

dren  nor  they  to  her,  except  that  which  the  Praetor  gave 
them  among  the  blood  relatives  (cognati)  generally,  after 
the  agnates  (persons  related  through  males).  A  state  of 
things  so  inconsistent  with  natural  feeling  could  not  how- 
ever always  continue,  so  the  Praetor  created  a  rule  of  prac- 
tice whereby  each  consort  had  a  reciprocal  right  of  succes- 
sion to  the  other.  But  even  in  doing  so,  he  placed  this 
succession  after  that  of  other  blood  relations,  as  far  as  the 
children  of  second  cousins.  This  postponement  of  a  consort 
to  blood  relatives  was  carried  even  further  by  Justinian's 
legislation,  for  that  emperor  extended  the  category  of  rela- 
tives who  could  succeed  in  case  of  intestacy,  and  made  no 
provision  for  the  wife  (beyond  that  which  the  Praetor  had 
made),  except  to  some  small  degree  in  case  of  a  necessitous 
widow.  The  relationship  of  mother  and  child  received  a 
somewhat  fuller  recognition,  for  laws  (Senatus  Consultum 
T  ertullianum,  Sc.  Orphitianum)  of  the  time  of  Hadrian  and 
Marcus  Aurelius  gave  the  mother  and  the  children  recip- 
rocal rights  of  inheritance,1  which,  finding  a  place  in  the 
general  scheme  of  succession  based  on  consanguinity  which 
Justinian  established,  have  passed  into  modern  law. 

Distinct  as  were  the  personalities  of  the  two  consorts  in 
respect  of  property,  the  practical  needs  of  a  joint  life 
recommended  some  plan  under  which  a  provision  might  be 
made  for  the  expenses  of  a  joint  household.  This  sprang 
up  as  soon  as  marriages  without  the  concomitant  creation 
of  the  Hand  power  had  grown  common.  It  became  usual 
for  the  wife  to  bring  with  her  land  or  goods,  either  her  own, 
if  she  were  independent,  or  bestowed  by  her  father  or  other 
relative.  This  property,  which  was  destined  for  the  support 
of  the  married  pair  and  their  children,  was  called  the  Dos, 
a  term  which,  since  it  denotes  the  wife's  contribution  to  the 
matrimonial  fund,  must  not  be  translated  by  our  English 
word  Dower,  for  that  term  describes  the  right  of  a  wife  who 
survives  her  husband  to  have  a  share  in  his  landed  estate. 
Many  rules  sprang  up  regarding  the  Dos,  rules  probably 
due  in  the  first  instance  to  custom,  for  as  the  instruments 

1The  mother's  succession  was  originally  granted  only  where  she  had 
borne  three  children  (if  a  f reed-woman,  four). 


76.     BRYCE:  MARRIAGE  AND  DIVORCE    795 

of  marriage  contracts  were  usually  drawn  on  pretty  uniform 
lines,  these  lines  ultimately  became  settled  law.1  The  gen- 
eral principle  came  to  be  that  property  given  from  the  wife's 
side,  whether  by  her  father,  or  by  herself,  or  by  some  of  her 
relatives,  became  subject  to  the  husband's  right  of  user 
while  the  marriage  lasted,  as  enabling  him  to  fulfil  his  obli- 
gation to  support  wife  and  children,  but  at  the  expiry  of 
the  marriage  by  the  death  (natural  or  civil)  of  either  party, 
or  by  divorce,  reverted  to  the  wife  or  her  heirs.2  If,  how- 
ever, the  property  had  been  given  by  the  wife's  father,  he 
might,  if  still  living,  reclaim  it.3  The  Dos  is  said  by  the 
Romans  to  be  given  for  the  purpose  of  supporting  the  bur- 
den of  married  housekeeping,  and  therefore  the  administra- 
tion and  usufruct  of  it  pertain  to  the  husband,  while  the 
ultimate  ownership  remains  in  the  wife,  or  in  the  father 
who  constituted  it,  as  the  case  may  be.  In  the  later  imperial 
period  a  sort  of  second  form  of  matrimonial  property  was 
introduced,  called  the  gift  for  the  sake  of  marriage  (donatio 
propter  nuptias).  It  was  made  by  the  husband,  and  re- 
mained his  property  both  during  and  after  the  marriage. 
So  far,  as  it  was  only  theoretically  separated  from  other 
parts  of  ohe  husband's  estate,  it  might  seem  to  have  no 
importance.  But  if  he  became  insolvent,  it  did  not,  like  the 
rest  of  his  property,  pass  to  his  creditors,  but  went  over  to 
the  wife,  just  as  the  Dos,  although  administered  by  the  hus- 
band, remained  unaffected  by  his  insolvency.  And  just  as 
the  husband  was  entitled,  where  a  divorce  was  caused  by 
the  wife's  fault,  to  retain  a  part  of  the  Dos,  so  if  a  divorce 
was  caused  by  the  husband's  fault,  the  donatio  propter  nup- 
tias, or  a  part  of  it,  might  be  claimed  by  the  injured  wife. 
The  similarity  of  some  of  these  arrangements  to  the  prac- 

1The  *  custom  of  conveyancers'  has  worked  itself  into  English  law 
in  a  somewhat  similar  way. 

2  This  was  the  rule  as  settled  by  Justinian.  Before  his  time,  the 
husband  took  the  Dos  at  the  wife's  death  unless  it  had  been  given  by 
her  father. 

8  There  are  many  less  important  rules  regarding  the  extent  of  the 
husband's  interest  and  the  form  in  which  the  property  is  to  be  restored 
at  the  end  of  the  marriage,  which  it  is  not  necessary  to  set  forth,  as 
they  do  not  affect  the  general  principle.  Indeed  generally  through 
these  pages  I  am  forced,  for  the  sake  of  clearness  and  brevity,  to  omit 
a  number  of  minor  provisions. 


796         IX.     WILLS,  DESCENT,  MARRIAGE 

tice  of  English  marriage  settlements  will  occur  to  every 
one's  mind,  though  in  England  settlements  are  always 
created  and  governed  by  the  provisions  of  the  deeds  which 
create  them,  whereas  in  Rome,  although  special  provisions 
were  frequently  resorted  to,  there  arose  a  general  legal  doc- 
trine whose  provisions  were  applicable  to  gifts  made  upon 
or  in  contemplation  of  marriage. 

One  further  point  needs  to  be  mentioned.  It  was  a  very 
old  customary  (or,  as  we  should  say,  common  law)  rule  of 
Roman  law  that  neither  of  the  wedded  pair  could  during 
the  marriage  bestow  gifts  upon  the  other,  the  reason  as- 
signed being  the  risk  that  one  or  other  might  by  the  exer- 
cise of  the  influence  arising  from  their  relation  be  deprived 
of  his  or  her  property  to  his  or  her  permanent  damage  (ne 
mutuato  amore  invicem  spoliarentur) .  This  principle,  which 
protects  the  wife  from  being  either  wheedled  or  bullied  out 
of  her  separate  property,  and  may  be  compared  with  the 
English  restraint  on  alienation  or  anticipation  applied  to  a 
wife's  settled  property,  was  also  held  to  be  occasionally 
needed  to  protect  the  husband's  interests,  and  those  of  the 
children,  from  suffering  at  the  hands  of  a  grasping  wife. 
It  issues  from  the  view  which  the  Roman  jurists  enounce 
that  affection  must  not  be  abused  so  as  to  obtain  pecuniary 
gain;  and  one  jurist  adds  that  if  either  party  were  per- 
mitted to  make  gifts  the  omission  to  make  them  might  lead 
to  the  dissolution  of  the  marriage,  and  so  the  continuance 
of  marriages  would  be  purchasable.1  Such  gifts  were  ac- 
cordingly held  null  and  void,  the  only  exception  being  that 
where  property  actually  given  had  been  left  in  the  donee's 
hands  until  the  donor's  death,  the  heir  of  the  donor  could  not 
reclaim  it  from  the  surviving  donee.  Needless  to  say  that 
the  rule  only  covered  serious  transfers  of  property,  and  did 
not  apply  to  gifts  of  dress  or  ornaments  or  such  other 
tokens  of  affection  as  may  from  time  to  time  pass  between 
happy  consorts. 

14Sextus  Caecilius  et  illam  causam  adiciebat,  quia  saepe  futuruM 
esset  ut  discuterentur  matrimonia  si  non  donaret  is  qui  posset  atque  ea 
ratione  eventurum  ut  venalicia  essent  matrimonia.'  This  view  was  sanc- 
tioned by  the  Emperor  Caracalla  in  his  speech  to  the  senate,  which 
introduced  the  exception  next  mentioned  in  the  text;  Dig.  xxiv.  1.  2. 


76.     BRYCE:  MARRIAGE  AND  DIVORCE    797 

VII.  General  Character  of  the  Roman  Conception  of  Mar- 
riage 

Reviewing  the  rules  which  regulated  marriage  without 
the  Hand  Power,  the  sole  marriage  of  the  classical  times  of 
Roman  law,  we  are  struck  by  three  things. 

The  conception  of  the  marriage  relation  is  an  altogether 
high  and  worthy  one.  A  great  jurist  defines  it  as  a  partner- 
ship in  the  whole  of  life,  a  sharing  of  rights  both  sacred  and 
secular.1  The  wife  is  the  husband's  equal.2  She  has  full 
control  of  her  daily  life  and  her  property.  She  is  not  shut 
up,  like  the  Greek  wife,  especially  among  the  lonians,  in  a 
sort  of  Oriental  seclusion,  but  moves  freely  about  the  city, 
not  only  mistress  of  her  home,  but  also  claiming  and  receiv- 
ing public  respect,  though  so  far  placed  on  a  different  foot- 
ing from  men,  and  judged  by  a  standard  more  rigid  than 
ours,  that  it  was  deemed  unbecoming  for  her  to  dance  and 
shocking  for  her  to  drink  wine. 

The  marriage  relation  is  deemed  to  be  wholly  a  matter 
of  private  concern  with  which  neither  the  State  nor  (in 
Christian  times)  the  Church  has  to  concern  itself.  This 
was  so  far  modified  under  the  Emperors,  that  the  State, 
from  the  time  of  Augustus,  began  to  try  to  discourage  cel- 
ibacy and  childlessness  in  the  interests  of  the  maintenance 
of  an  upper  class  Roman  population,  as  opposed  to  one 
recruited  from  freed  men  and  strangers.  But  these  efforts 
were  not,  as  we  shall  see,  incompatible  with  adherence  to  the 
general  principle  that  the  formation  and  dissolution  of  the 
tie  required  no  State  intervention,  nor  even  any  form  pre- 
scribed by  State  authority. 

The  marriage  relation  rests  entirely  on  the  free  will  of 
the  two  parties.3  If  either4  having  promised  to  enter  it 
refuses  to  do  so,  no  liability  is  incurred.  If  either  desires 
to  quit  it,  he  or  she  can  do  so.  Within  it,  each  retains  his 

1 '  Nuptiae  sunt  coniunctio  maris  et  feminae  et  consortium  omnis 
vitae,  divini  et  humani  iuris  communicatio ; '  Modestinus  in  Dig.  xxiii. 
2.  1. 

2  This  was  expressed  in  the  phrase  which  the  bride  anciently  used 
when  brought  to  the  husband's  house:  '  Ubi  tu  Gaius,  ego  Gaia.' 

"Libera  matrimonia  esse  antiquitus  placuit,-'  says  the  Emperor 
Severus  Alexander  in  the  third  century.  Cod.  viii.  38.  2. 


798         IX.     WILLS,  DESCENT,  MARRIAGE 

or  her  absolute  freedom  of  action,  absolute  disposal  of  his 
or  her  property. 

Compulsion  in  any  form  or  guise  is  utterly  opposed  to  a 
connection  which  springs  from  free  choice  and  is  sustained 
by  affection  only. 

These  principles  have  a  special  interest  as  being  the  latest 
word  of  ancient  civilization  before  Christianity  began  to  in- 
fluence legislation.  They  have  in  them  much  that  is  elevated, 
much  that  is  attractive.  They  embody  the  doctrines*  which, 
after  an  interval  of  many  centuries,  have  again  begun  to  be 
preached  with  the  fervour  of  conviction  to  the  modern  world, 
especially  in  England  and  the  United  States,  by  many  zeal- 
ous friends  of  progress,  and  especially  by  those  who  think 
that  the  greatest  step  towards  progress  is  to  be  found  in 
what  is  called  the  emancipation  of  woman. 

VIII.  Divorce  in  Roman  Law 

Let  us  now  see  how  the  Roman  principles  aforesaid 
worked  out  in  practice  as  regards  domestic  morality  and  the 
structure  of  society,  that  structure  depending  for  its  health 
and  its  strength  upon  the  purity  of  home  life  at  least  as 
much  as  it  does  upon  any  other  factor. 

The  last  of  the  above-stated  three  principles  is  the  deriva- 
tion of  all  the  attributes  of  the  marriage  relation  from  the 
uncontrolled  free  will  of  the  parties.  This  principle  is  ap- 
plied to  the  continuance  of  the  relation  itself.  With  us 
moderns  the  tie  is  a  permanent  tie,  which,  though  freely 
formed,  cannot  be  freely  dissolved,  whether  by  one  of  the 
parties  or  by  both.  Very  different  was  the  Roman  view. 
To  them  it  is  even  less  binding  than  an  ordinary  business 
contract.  Take  for  instance  a  bargain  made  between  A 
and  B  for  the  sale  and  purchase  of  a  house.  Such  a  bargain 
creates  what  the  Romans  call  an  obligation,  a  bond  of  law 
(vinculum  iuris)  which  enables  either  of  the  contracting 
parties  to  require  the  other  to  fulfil  his  promise,  or  to  pay 
damages  in  case  of  default.  In  Roman  law  the  act  of  enter- 
ing into  marriage  creates  no  such  bond.  The  business  con- 
tract can  be  rescinded  only  by  the  consent  of  both  the  parties 


76.     BRYCE:  MARRIAGE  AND  DIVORCE    799 

to  it.  The  marriage  relation  can  be  terminated  by  the  will 
of  one  only.  Each  party  in  forming  it  promised  only  that 
he,  or  she,  would  remain  united  to  the  other  so  long  as  he, 
or  she,  desired  so  to  remain  united.  This  is  the  logical  con- 
sequence of  the  principle  that  marriages  should  be  free; 
this  was  how  the  Romans  understood  that  principle. 

Accordingly  divorce  can  be  effected  by  either  party  at 
his  or  her  pleasure,  the  doctrine  of  equality  between  the  sexes 
being  impartially  applied,  so  that  the  wife  may  just  as 
freely  and  easily  divorce  her  husband  as  the  husband  may 
divorce  his  wife. 

The  early  history  of  the  matter  is  somewhat  obscure,  and 
need  not  detain  us.  It  would  seem  probable  that  in  the  old 
days  when  marriage  was  accompanied  by  the  Hand  power1, 
a  husband  might  put  away  his  wife  if  she  had  been  convicted 
before  the  domestic  council  of  certain  grave  offences ; 1  and 
we  gather  that  in  such  cases  she  was  entitled  to  demand  her 
emancipation,  i.  e.  the  extinction  of  the  Hand  power,  by  the 
proper  legal  method  thereto  appointed.  Such  cases  were, 
however,  extremely  rare.  When  marriage  unaccompanied 
by  Hand  power  became  frequent,  we  do  not  at  first  hear 
of  any  divorces.  Our  authorities  declare  that  the  first  in- 
stance of  divorce  at  Rome  (they  probably  mean  the  first 
where  no  crime  was  alleged)  was  furnished  by  a  certain 
Spurius  Carvilius  Ruga,  who  in  B.  c.  231  got  rid  of  his  wife, 
although  warmly  attached  to  her,  on  account  of  her  sterility. 
Universal  displeasure  fell  upon  him  for  his  conduct:  and 
when  L.  Antonius  put  away  his  wife  without  summoning 
a  council  of  friends  and  laying  the  matter  before  them,  the 
Censors  removed  him  from  his  tribe.  But  before  long  other 
husbands  were  found  to  imitate  Spurius  Carvilius.  In  the 
second  century  B.  c.  divorce  was  no  longer  rare.  In  the 
days  of  Julius  Caesar  it  had  become  common,  and  continued 
to  be  so  for  many  generations.  The  fragrance  of  religious 
sentiment  had  ceased  to  hallow  marriage,  and  in  the  general 

1  A  so-called  '  law  of  Romulus '  is  said  to  have  enumerated  poisoning 
the  children,  adultery,  and  the  use  of  false  keys  as  grounds  justifying 
the  husband  in  divorcing  his  wife,  no  parallel  right  being  granted  to 
her.  And  there  seems  to  have  been  a  provision  regarding  divorce  in 
the  Twelve  Tables. 


800         IX.      WILLS,  DESCENT,  MARRIAGE 

decline  of  morals  and  manners  it  was  one  of  the  first  institu- 
tions to  suffer  degradation.  Not  only  Cn.  Pompey,  but 
such  austere  moralists  as  Cato  the  younger  and  the  philo- 
sophic Cicero  put  away  their  wives:  Cato  his  after  thirty 
years  of  wedded  life,  Cicero  two  in  rapid  succession. 

How  far  this  decline  had  gone,  even .  before  the  days  of 
Cato  and  Cicero,  appears  from  the  singular  speech  delivered 
by  Q.  Caecilius  Metellus,  Censor  in  B.  c.  131,  in  which  he 
recommended  a  law  for  compelling  everybody  to  marry,  ob- 
serving that  if  it  were  possible  to  have  no  wives  at  all,  every- 
body would  gladly  escape  that  annoyance,  but  since  nature 
had  so  ordained  that  it  was  not  possible  to  live  agreeably 
with  them,  nor  to  live  at  all  without  them,  regard  must  be 
had  rather  to  permanent  welfare  than  to  transitory  pleas- 
ure.1 We  are  told  that  both  men  and  women,  especially  rich 
women,  were  constantly  changing  their  consorts,  on  the  most 
frivolous  pretexts,  or  perhaps  not  caring  to  allege  any  pre- 
text beyond  their  own  caprice.  Nothing  more  than  a  decla- 
ration of  the  will  of  the  divorcing  party  was  needed:  and 
this  was  usually  given  by  the  husband  in  the  set  form  of 
words,  '  keep  thy  property  to  thyself  '  (tuas  res  tibi  lidbeto). 
Little  or  no  social  stigma  seems  to  have  attached  to  the 
divorcing  partner,  even  to  the  wife,  for  public  opinion,  in 
older  days  a  rigid  guardian  of  hearth  and  home,  had  now, 
in  a  rich,  luxurious,  and  corrupt  society,  a  society  which 
treated  amusement  as  the  main  business  of  life,  come  to  be 
callously  tolerant.  There  were  still  pure  and  happy  mar- 
riages, like  that  of  Cn.  Julius  Agricola  (the  conqueror  of 
Britain)  and  Flavia  Domitilla;  nor  is  it  necessary  to  sup- 
pose that  conjugal  infidelity  was  the  chief  cause  why  unions 
were  so  lightly  contracted  and  dissolved,  for  the  mere  whims 
of  self-indulgent  sybarites  account  for  a  great  deal.2  Still 

1 '  Si  sine  uxore,  Quirites,  possemus  esse,  omnes  ea  molestia  carere- 
mus,  sed  quoniam  ita  natura  tradidit  ut  neque  cum  illis  commode  nee 
sine  illis  ullo  modo  vivi  possit,  saluti  perpetuae  potius  quam  brevi  volup- 
tati  consulendum.'  Aul.  Cell.  Noct.  Att.  i.  6:  cf.  Liv.  Epit.  Book  lix, 
and  Sueton.  Vit.  Aug.  Augustus,  according  to  Gellius  and  Suetonius, 
caused  this  speech,  delivered  a  century  before,  to  be  read  aloud  in  the 
Senate  in  support  of  his  bill  De  Maritandis  Ordinibus,  as  being  one 
which  might  fitly  have  been  made  for  their  own  times. 

8 '  Aut  minus  aut  certe  non  plus  tricesima  lux  est 
Et  nubit  decimo  iam  Thelesina  viro.'    Mart.  vi.  7. 


76.     BRYCE:  MARRIAGE  AND  DIVORCE    801 

the  main  facts  —  the  prevalence  of  divorce,  the  absence  of 
social  penalties,  and  the  general  profligacy  of  the  wealthier 
classes  —  admit  of  no  doubt. 

The  Emperor  Augustus,  though  by  no  means  himself  a 
pattern  of  morality,  was  so  much  alarmed  at  a  laxity  of 
manners  which  threatened  the  well-being  of  the  community, 
as  to  try  to  restrict  divorces  by  requiring  the  party  desir- 
ing to  separate  to  declare  his  or  her  intent  in  the  presence 
of  seven  witnesses,  being  all  full  Roman  citizens.  This  rule, 
enacted  by  the  lex  lulia  de  adult er Us,  and  continued  down 
till  Justinian's  time,  does  not  seem  to  have  reduced  the  fre-  < 
quency  of  divorces,  though  it  would  tend  to  render  the  fact 
more  certain  in  each  case  by  providing  indubitable  evidence. 
Martial  and  Juvenal  present  a  highly  coloured  yet  perhaps 
not  greatly  exaggerated  picture  of  the  license  of  their  time ; 
and  Seneca  truly  observes  that  when  vice  has  become  em- 
bodied in  manners,  remedies  avail  nothing  (Desinit  esse 
remedio  locus  ubi  quae  fuerant  vitia  mores  sunt). 

IX.  Influence  of  Christianity  on  the  Roman  Divorce  Law 

But  a  force  had  come  into  existence  which  was  to  prove 
itself  far  more  powerful  than  the  legislation  of  Augustus 
and  his  successors.  The  last  thing  that  these  monarchs 
looked  for  was  a  reformation  emanating  from  a  sect  which 
they  were  persecuting,  and  from  doctrines  which  their  phi- 
losophers regarded  with  contempt.  Christianity  from  the 
first  recognized  the  sanctity  of  marriage,  and  when  it  be- 
came dominant  (though  for  a  long  time  by  no  means  omnip- 
otent) in  the  empire  a  new  era  began.  The  heathen  emperors 
might  probably  have  been  glad  to  check  the  power  of  capri- 
ciously terminating  a  marriage,  but  public  opinion,  which 
clung  to  the  principle  of  freedom,  would  have  been  too 
strong  for  them.  All  they  did  was  to  impose  pecuniary 
penalties  on  the  culpable  party  by  entitling  the  husband  to 
retain  one-sixth  of  the  Dos  in  case  of  the  wife's  infidelity, 
one-eighth  if  her  faults  had  been  slighter,  to  which,  if  there 
were  children,  one-sixth  was  added  in  respect  of  each  child, 
but  so  as  not  to  exceed  one-half  in  all.  (The  custody  of  the 


802         IX.     WILLS,  DESCENT,  MARRIAGE 

children  belonged  to  the  father  in  respect  of  his  paternal 
power.)  If  the  husband  was  the  guilty  party,  he  was 
obliged  to  restore  the  Dos  at  once,  instead  of  being  allowed 
a  year's  grace. 

Constantine  and  his  successors  had  a  somewhat  easier 
task,  because  the  Church  had  during  several  generations 
given  to  marriage  a  religious  character,  surrounded  its 
celebration  with  many  rites,  and  pronounced  her  benediction 
upon  those  who  entered  into  it.  A  new  sentiment,  which 
looked  on  it  as  a  union  permanent  because  hallowed  was 
growing  up,  and  must  have  to  some  extent  affected  even 
heathen  society,  which  remained  for  a  century  after  Con- 
stantine both  large  and  influential.  Nevertheless,  even  the 
Christian  emperors  did  not  venture  to  forbid  divorce.  They 
heightened  the  pecuniary  penalties  on  the  party  to  blame 
for  a  separation  by  providing  that  where  the  misconduct 
of  the  wife  gave  the  husband  good  grounds  for  divorcing 
her,  she  should  lose  the  whole  of  the  Dos,  and  where  it  was 
the  husband's  transgressions  that  justified  the  wife  in  leav- 
ing him,  he  should  forfeit  to  her  the  property  he  had  settled, 
the  donatio  propter  nuptias.  In  both  these  cases  the  ulti- 
mate ownership  of  these  two  pieces  of  marriage  property 
was  reserved  to  the  children,  if  any,  the  husband  or  wife, 
as  the  case  might  be,  taking  the  usufruct  or  life  interest. 
If  there  was  no  Dos  or  Donatio,  then  the  culpable  party 
forfeited  to  the  innocent  one  a  fourth  part  of  his  or  her 
private  property.  The  definition  of  misconduct  included 
a  frivolous  divorce,  so  that  capricious  dissolutions  were  in 
this  way  discouraged. 

If  there  were  no  fault  on  either  side,  but  one  or  other 
partner  desired  to  put  an  end  to  the  marriage  for  the  sake 
of  entering  a  convent,  or  because  the  husband  had  been  for 
five  years  in  foreign  captivity,1  or  because  there  had  never 
been  any  prospect  of  offspring,  such  a  divorce  was  allowed, 
and  carried  no  pecuniary  penalty  with  it.  It  was  called 
divortium  bona  gratia. 

Finally,   if   both   the    parties    agreed    of   their    own    free 

1The  older  doctrine  had  been  that  foreign  captivity  destroyed  mar- 
riage ipso  facto. 


76.     BRYCE:  MARRIAGE  AND  DIVORCE    803 

wills  to  separate  — -  the  divortium  communi  consensu  —  they 
might  do  so  without  assigning  any  cause  or  incurring  any 
liability.  This  rule,  which  prevailed  from  first  to  last,  and 
is  recognized  even  in  the  Digest  and  Code  of  Justinian,  was 
only  once  broken  in  upon.  In  an  ordinance  issued  by  Jus- 
tinian in  his  later  years  (Novella  Constitutio  cxxxiv)  the 
pious  austerity  of  the  reformer  broke  out  so  vehemently  as 
to  enact  that  where  husband  and  wife  agreed  to  divorce  one 
another  without  sufficient  ground,  both  should  be  incapable 
of  remarriage  and  be  immured  for  life  in  a  convent,  two- 
thirds  of  their  property  going  to  their  children.  Even 
then,  however,  the  emperor  did  not  venture  to  pronounce 
the  divorce  legally  invalid.  The  will  of  the  parties  prevails, 
and  they  die  unmarried,  though  they  die  in  prison.  This 
violation  of  the  established  doctrine  was,  however,  too  gross 
to  stand.  It  excited  general  displeasure,  and  was  repealed 
by  Justin  the  Second,  the  nephew  and  successor  of  Justinian. 
So  the  divorce  by  consent  lasted  for  some  centuries  longer, 
till  in  an  age  which  had  forgotten  the  ancient  Roman  ideas 
and  was  pervaded  by  the  conception  of  the  marriage  rela- 
tion which  religion  had  instilled,  the  Emperor  Leo  the  Phi- 
losopher declared  this  form  of  separation  to  be  invalid. 

Through  the  whole  of  this  legislation  on  the  subject  of 
divorce,  which  is  far  more  minute  and  intricate  than  the 
briefness  of  the  outline  here  presented  can  convey,  it  is  to  be 
noted  that  the  Romans  held  fast  to  two  principles.  One 
was  the  wholly  private,  the  other  the  wholly  secular,  char-  * 
acter  of  wedlock.  There  is  no  legal  method  prescribed  for 
entering  into  a  marriage,  nor  any  public  record  kept  of 
marriages.  There  is  no  suit  for  divorce,  no  public  registra-  ix 
tion  of  divorce.  The  State  is  not  invoked  in  any  way. 
Neither  is  the  Church.  Powerful  as  she  had  grown  before 
Justinian's  time,  even  that  sovereign  does  not  think  of  re- 
quiring her  sanction  to  the  extinction  of  the  marriage  which 
in  most  cases  she  had  blessed.  Either  party  has  an  absolute 
right  to  shake  off  the  bond  which  has  become  a  fetter.  He 
or  she  may  suffer  pecuniarily  by  doing  so,  but  the  act  itself 
is  valid,  valid  against  an  innocent  no  less  than  against  a 
guilty  partner,  and  valid  to  the  extent  of  permitting  remar- 


804         IX.     WILLS,  DESCENT,  MARRIAGE 

riage,  except  (as  observed  in  the  last  paragraph)  for  a  few 
years  at  the  end  of  Justinian's  reign. 

Religion  had  consecrated  the  patrician  marriage  with  the 
sacred  cake  in  early  days,  and  there  had  been  a  public  char- 
acter in  the  so-called  plebian  marriage  with  the  scales  and 
five  witnesses.  But  the  marriage  of  the  Christian  Empire 
was  (so  far  as  law  went)  absolutely  secular  and  absolutely 
private. 

X.  Some  other  Features  of  Roman  Marriage  Law 

Before  leaving  this  part  of  the  subject,  a  few  minor  curi- 
osities of  the  Roman  marriage  law  deserve  to  be  mentioned. 
From  the  time  of  Augustus  there  were  in  force,  during  some 
centuries,  various  provisions  1  designed  to  promote  marriage 
and  the  bearing  of  children  by  attaching  certain  burdens  or 
disabilities  to  the  unmarried  and  childless.  Most  of  these, 
being  opposed  to  the  new  sentiment  which  Christianity  fos- 
tered, were  swept  away  by  the  Emperor  Constantine  and  his 
successors.  Others  fell  into  desuetude,  so  that  before  Jus- 
tinian's time  few  and  slight  traces  were  left  of  statutes  that 
had  exerted  a  great  influence  in  earlier  days,  though  it  may 
be  doubted  whether  they  did  much  to  promote  morality.  The 
tendency  of  Christian  teaching  rather  was  in  favour  of  celi- 
bacy, when  adhered  to  from  ascetic  motives ;  and  the  passion 
for  a  monastic  life  which  marked  the  end  of  the  fourth  cen- 
tury told  powerfully  in  this  direction,  especially  in  the  east- 
ern half  of  the  empire. 

Similar  sentiments  worked  to  discourage  second  marriages, 
which  earlier  legislation  had  favoured,  though  the  widow 
who  remarried  within  the  year  of  mourning  (originally  of 
ten,  ultimately  of  twelve  months)  suffered  infamy,  by  a  very 
ancient  custom,  as  did  the  person  who  wedded  her.  The 
marriage  was,  however,  valid.  The  Christian  emperors 
punished  the  consort  who  married  again  by  debarring  him 
or  her  from  the  full  ownership  of  any  property  which  came 
to  him  or  her  through  the  first  marriage  (lucra  nuptialia), 
while  leaving  him  (or  her)  the  usufruct  in  it.  But  this 

1  Especially  those  contained  in  the  lex  lulia  et  Papia  Poppaea. 


76.     BRYCE:  MARRIAGE  AND  DIVORCE    805 

applied  only  where  there  were  children  of  the  first  marriage 
living,  and  was  mainly  prompted  by  a  desire  to  protect  their 
interests  against  a  step-parent.  The  ancient  world  was 
singularly  suspicious  of  step-mothers. 

The  rules  with  regard  to  prohibited  degrees  of  matri- 
mony varied  widely  from  age  to  age.  In  early  Rome  even 
second  cousins  were  forbidden  to  intermarry.  There  was 
in  those  days  a  usage  permitting  near  relatives,  as  far  as 
second  cousins,  to  kiss  one  another  without  incurring  cen- 
sure (ius  osculi).  Plutarch  oddly  explains  the  permission 
as  grounded  upon  the  right  of  the  male  relatives  to  satisfy 
themselves  in  this  way  that  the  ladies  of  the  family  had  not 
tasted  wine.  But  obviously  the  wholesome  habits  of  a  simple 
society  allowed  a  familiar  intercourse  among  kinsfolk  just 
as  far,  and  no  farther,  as  the  prohibition  of  marriage  be- 
tween them  extended.1  Towards  the  end  of  the  republican 
period,  however,  we  find  that  even  first  cousins  might  marry, 
probably  by  custom,  for  we  hear  of  no  specific  enactments. 
Tacitus  (Ann.  xii.  6)  refers  to  the  practice  as  well  estab- 
lished. This  freedom  lasted  till  the  Emperor  Theodosius  the 
First,  who  forbade  their  marriage  under  pain  of  death  by 
burning.  Though  the  penalty  was  subsequently  reduced, 
marriages  of  first  cousins  continued  to  be  forbidden  and 
punishable  in  the  western  half  of  the  empire,  while  in  the 
eastern  they  were  made  permissible,  and  remained  so  in  the 
system  of  Justinian.  The  marriage  of  uncle  or  aunt  with 
niece  or  nephew  had  been  prohibited,  though  apparently  by 
no  statute,  until  the  Emperor  Claudius,  desiring  to  marry 
his  brother's  daughter  Agrippina,  obtained  a  decree  of  the 
Senate  declaring  such  a  marriage  legal.2  So  it  remained 
for  a  time,  though  the  marriage  of  an  uncle  with  a  sister's 
daughter,  or  of  an  aunt  with  a  nephew,  was  still  deemed 
incestuous.  Christianity  brought  a  change,  and  the  law 
of  Claudius  was  annulled  by  the  sons  of  the  Emperor  Con- 


1  It  is  a  curious  instance  of  the  variance  of  custom  in  this  respect, 
that  after  it  had  in  England  become  unusual  for  cousins  of  different 
sexes  to  kiss  one  another,  the  practice  remained  common  in  the  simpler 
society  of  Scotland  and  still  more  in  that  of  Ireland. 

*Tac.  Ann.  xii.  5-7. 


806 


IX.     WILLS,  DESCENT,  MARRIAGE 


stantine.  It  was  also  by  these  sovereigns  that  marriage 
with  a  deceased  wife's  sister,  or  a  deceased  husband's 
brother,  which  had  previously  been  lawful,  though  appar- 
ently regarded  with  social  disapproval,  was  expressly  for- 
bidden.1 This  rule  was  adopted  by  Justinian,  in  whose  Co- 
dex  it  finds  a  place.2 

Besides  the  full  lawful  marriage  of  Roman  citizens,  to 
which  alone  the  previous  remarks  have  referred,  there  were 
two  other  recognized  relations  of  the  sexes  under  the  Roman 
law.3  One  of  these  was  the  marriage  of  a  citizen,  whether* 
male  or  female,  with  a  non-citizen,  i.  e.  a  person  who  did  not 
enjoy  that  part  of  citizenship  which  covered  family  rights 
and  was  called  connubium.  This  was  called  a  natural  mar- 
riage (matrimonium  naturale,  matrimonium  iuris  gentium) 
as  existing  under  the  Law  of  Nature  or  Law  of  the  Nations 
(ius  gentium),  as  contradistinguished  from  the  peculiar  law 
of  Rome  (ius  civile).4  It  was  a  perfectly  legal  union,  and 
the  children  were  legitimate:  as  of  course  were  the  children 
of  two  non-citizens  who  married  according  to  their  own  law. 
When  Roman  citizenship  became  extended  to  all  the  sub- 
jects of  the  empire,  the  importance  of  this  kind  of  marriage 
vanished,  for  it  could  thereafter  have  been  applicable  (with 
some  few  exceptions)  only  to  persons  outside  the  Empire, 
and  marriages  with  such  persons,  who  were  prima  facie 
enemies,  were  forbidden. 

The  other  relation  was  that  called  concubinage  (concu- 
binatus).  It  was  something  to  which  we  have  no  precise 
analogue  in  modern  law,  for,  so  far  from  being  pro- 
hibited by  the  law,  it  was  regulated  thereby,  being 
treated  as  a  lawful  connexion.  It  is  almost  a  sort  of  un- 
equal marriage  (and  is  practically  so  described  by  some  of 


1Many  other  prohibitions  of  marriages  applying  to  persons  holding 
official  relations,  or  to  persons  of  widely  different  rank,  or  to  cases 
where  adoptive  relationships  come  in,  need  not  be  mentioned,  as  they 
have  no  longer  any  great  interest. 

2  Cod.  Theod.  iii.  12,  Q  sqq.;  Cod.  lustin.  v.  5.  5  and  8. 

3  The  connexion  of  two  slaves,  called  contubernium,  was  not  deemed 
a  legal  relation  at  all,  and  children  born  from  it  were  not  legitimate. 
So  also  a  free  person  could  not  legally  intermarry  with  a  slave. 

4  See  Essay  XI,  p.  570,  in  the  Studies   from  which  this  chapter  is 
taken. 


76.     BRYCE:  MARRIAGE  AND  DIVORCE    807 

the  jurists)  existing  between  persons  of  different  station — • 
the  man  of  superior  rank,  the  woman  of  a  rank  so  much 
inferior  that  it  is  not  to  be  presumed  that  his  union  with 
her  was  intended  to  be  a  marriage.  It  leaves  the  woman 
in  the  same  station  in  which  it  found  her,  not  raising  her, 
as  marriage  normally  does,  to  the  husband's  level.  The 
children  born  in  such  a  union  are  not  legitimate ;  but  they 
may  require  their  father  to  support  them,  and  are  even  al- 
lowed by  Justinian,  in  one  of  his  later  enactments  (Novella 
Ixxxix),  a  qualified  right  of  intestate  succession  to  him. 
They  of  course  follow  their  mother's  condition,  and  they 
have  a  right  of  inheriting  her  property.  Even  here  the 
monogamic  principle  holds  good.  A  man  who  is  married 
cannot  have  a  concubine,  nor  can  any  man  have  more  than 
one  concubine  at  a  time.  Though  regarded  with  less  indul- 
gence by  the  Christian  emperors  than  it  had  been  by  their 
predecessors,  it  held  its  ground  in  the  Eastern  Empire,  even 
under  Justinian,  who  calls  it  a  '  permitted  connexion  '  (licita 
consuetude),  and  was  not  abolished  till  long  after  his  time 
by  the  Emperor  Leo  the  Philosopher  in  A.  D.  887.  In  the 
West  it  became  by  degrees  discredited,  yet  doubtless  had 
some  influence  on  the  practice  of  the  clergy,  the  less  strict 
of  whom  continued  to  maintain  irregular  matrimonial  rela- 
tions for  a  great  while  after  celibacy  had  begun  to  be  en- 
forced by  ecclesiastical  authority. 

Children  born  in  concubinage  may  be  legitimated  by  the 
subsequent  marriage  of  their  parents,  according  to  a  rule  ^ 
first  introduced  by  Constantine,  and  subsequently  enlarged 
and  made  permanent  by  Justinian  (Cod.  v.  27,  5  and  6; 
Nov.  xii.  4 ;  Nov.  Ixxxix.  8)  ;  a  rule  of  great  importance, 
which  was  long  afterwards  introduced  into  the  Canon  Law 
by  Pope  Alexander  III  in  A.  D.  1160,  and  has  held  its  ground 
in  the  modern  Roman  law  of  continental  Europe,  as  it  does 
in  the  law  of  Scotland  to  this  day.  The  bishops,  prompted 
by  the  canonists,  tried  to  introduce  it  in  England,  but  were 
defeated  by  the  opposition  of  the  barons,  who  at  the  great 
council  held  at  Merton  in  20  Henry  III  (A.  D.  1235-6)  re- 
fused their  consent  in  the  famous  words,  '  We  will  not  change 
the  laws  of  England  which  hitherto  have  been  used  and  ap- 


808         IX.     WILLS,  DESCENT,  MARRIAGE 

proved.' l  Nevertheless  such  power  of  legitimating  the 
children  of  a  couple  born  before  their  legal  marriage  seems 
to  have  been  part  of  the  ancient  customs  of  England  before 
the  Conquest.  The  children  were  at  the  wedding  placed 
under  a  cloak  which  was  spread  over  the  parents,  and  were 
from  this  called  in  Germany,  France,  and  Normandy,  '  man- 
tle children.'2 

1  have  already  dwelt  upon  the  most  striking  feature  of 
the  branch  of  legal  history  we  have  been  tracing,  the  com- 
paratively sudden  passage  from  a  system  of  extreme  strict- 
ness —  under  which  the  wife's  personality,  with  her  whole 
right  of  property,  became  absolutely  merged  in  that  of  her 
husband  —  to   a   system  in  which  the  two  personalities   re- 
mained quite  distinct,  united  only  by  the  rights  which  each 
had   in   matrimonial   property,    rights   which   were   however 
not  rights  of  joint-management,  but  exercisable  (subject  to 
limitations)   by  the  husband  alone  so  long  as  the  marriage 
lasted,  while  the  reversion  was   secured  to  the  wife  or  her 
relatives.     It  is  hardly  less  noteworthy  that  these  two  con- 
trasted systems  did  for  a  considerable  time  exist  side  by  side ; 
and  for  a  century,  or  perhaps  more,  must  both  have  been 
in  full  vigour,  though  the  freer  system  was  obviously  gain- 
ing ground  upon  the  older  and  more  stringent  one. 

Another  fact,  though  more  easily  explicable,  is  also  worth 
noting.  In  its  earlier  stages  the  Roman  marriage  bore  a 
religious  character,  for  we  can  hardly  doubt  that  in  primitive 
times  Confarreation,  the  old  patrician  form  with  the  sacri- 
fice and  the  holy  cake,  was  practically  universal  among  the 
original  citizens,  before  the  plebs  came  into  a  separate  and 
legally  recognized  existence.  Hence  perhaps  it  is  that  mar- 

14  Ad  breve  Regis  de  bastardia  utrum  aliquis  natus  ante  matrimo- 
nium  habere  poterit  hereditatem  sicut  ille  qui  natus  est  post.  Respon- 
derunt  omnes  Episcopi  quod  nolunt  nee  possunt  ad  istud  respondere, 
quia  hoc  esset  contra  communem  formam  Ecclesie.  Ac  rogaverunt 
omnes  Episcopi  Magnates  ut  consentirent  quod  nati  ante  matrimonium 
essunt  legitimi  sicut  illi  qui  nati  sunt  post  matrimonium  quantum  ad 
successionem  hereditariam  quia  Ecclesia  tales  habet  pro  legitimis;  et 
omnes  comites  et  barones  una  voce  responderunt  quod  nolunt  leges 
Anglic  mutare  que  usitatate  sunt  et  approbate.'  20  Henr.  Ill,  Stat. 
Mert. 

2  Pollock  and  Maitland,  vol.  ii.  p.  397.     I  have  heard  of  the  cloak 
custom  as  existing  in  Scotland  down  almost  to  our  own  time. 


76.     BRYCE:  MARRIAGE  AND  DIVORCE    809 

riage  is  described,  even  when  that  description  had  ceased 
to  have  the  old  meaning,  as  a  '  sharing  of  all  rights,  both 
religious  and  secular.'  In  its  middle  period,  which  covers 
some  five  centuries,  it  was  a  purely  civil  relation,  not  af- 
fected, in  its  legal  aspects,  by  any  rules  attributable  to  a 
theological  or  superstitious  source.  But  when  Christianity 
became  the  dominant  faith  of  the  Empire,  the  view  which  the 
Gospel  and  the  usages  as  well  as  the  teaching  of  the  Church 
had  instilled  began  thenceforward  to  influence  legislation. 
These  usages  did  not  indeed,  down  till  the  eighth  century, 
transform  the  fundamental  conception  of  marriage  as  a  tie 
formed  solely  by  consent,  and  needing  the  intervention 
neither  of  State  nor  of  Church.  But  they  worked  them- 
selves into  the  doctrines  of  the  Church  in  such  wise  that, 
in  later  days,  they  succeeded  in  making  matrimony  so  far 
a  sacred  relation  as  to  give  it  an  indissoluble  character,  and 
not  only  restricted  the  circle  of  persons  between  whom  it 
could  lawfully  be  contracted,  but  abolished  the  power  of 
terminating  it  by  the  mere  will  of  the  parties. 

XI.  Marriage  under  the  Canon  Law 

When  direct  legislation  by  the  State  came  to  an  end  in 
Western  Europe  with  the  disappearance  of  the  effective 
power  of  the  Emperors  in  the  fifth  and  sixth  centuries,  the 
control  of  marriage  began  to  fall  into  the  hands  of  the 
Church  and  remained  there  for  many  generations.  To  pass 
from  the  civil  law  of  Rome  to  the  ecclesiastical  law  of  the 
Dark  and  Middle  Ages  is  like  quitting  an  open  country,  in- 
tersected by  good  roads,  for  a  tract  of  mountain  and  forest 
where  rough  and  tortuous  paths  furnish  the  only  means  of 
transit.  It  would  be  impossible  within  the  limits  of  this 
Essay  to  describe  that  law,  which  is  copious,  and  embar- 
rassed by  not  a  few  controverted  points.  All  that  it  seems 
necessary  to  say  here  is  that  the  Canon  Law,  which  was 
collected  and  codified  in  the  thirteenth  and  fourteenth  cen- 
turies, so  far  adhered  to  the  established  Roman  doctrine  as 
to  recognize,  down  till  the  Council  of  Trent,  the  main  prin* 
ciple  that  marriage  requires  nothing  more  than  the  free 


810          IX.      WILLS,  DESCENT,  MARRIAGE 

consent  of  the  parties,  expressed  in  any  way  sufficient  to 
show  that  the  union  which  they  contemplate  is  to  be  a  per- 
manent and  lawful  union.  Marriage  no  doubt  became,  in 
the  view  of  the  mediaeval  Church,  as  of  the  Roman  Church 
to-day,  a  sacrament,  but  it  is  a  sacrament  which  the  parties 
can  enter  into  without  the  aid  of  a  priest.  Their  consent 
ought,  no  doubt,  in  the  view  of  the  Church  and  of  Canon 
law,  to  be  declared  before  the  priest  and  to  receive  his  bene- 
diction. It  is  only  marriages  '  in  the  face  of  the  Church  ' 
that  are  deemed  '  regular '  marriages,1  and  the  Fourth  Lat- 
eran  Council  under  Innocent  the  Third  directed  the  publi- 
cation of  banns.  But  the  irregular  marriage  is  nevertheless 
perfectly  valid.  It  is  indissoluble  (subject  as  hereinafter 
mentioned),  and  the  children  born  in  it  are  legitimate.  A 
good  ground  for  this  indulgence  may  be  found  not  only  in 
Roman  traditions,  but  also  in  the  fact  that  the  Church  was 
anxious  to  keep  people  out  of  sin  and  to  make  children  legiti- 
mate, so  that  it  always  presumed  everything  it  could  in 
favour  of  lawful  matrimony. 

This  view  prevailed,  and  may  be  said  to  have  been  the 
common  law  of  Christendom,  as  it  had  been  of  the  old  Roman 
Empire,  down  till  the  Council  of  Trent.2  That  assembly, 
against  the  strong  protests  of  some  of  its  members,  passed 
a  decree  (Sessio  XXIV,  cap.  i,  De  Reformatione  Matri- 
monii)  which,  after  reciting  that  clandestine  marriages  had 
been  held  valid,  though  blameworthy,  declared  that  for  the 
future  all  should  be  deemed  invalid  unless  they  took  place 
in  the  presence  of  a  priest  and  of  two  or  three  witnesses. 
Apparently  it  was  not  so  much  for  the  sake  of  securing  the 
blessing  of  the  Church  upon  every  marriage  as  in  order  to 
prevent  scandals  which  had  arisen  from  the  breach  of  a  tie 
contracted  in  secret  that  the  change,  a  grave  and  memorable 
change,  was  made.  This  great  Council,  which  was  intended 
to  secure  the  union  of  Christendom  under  the  See  of  Rome, 

1See  Lord  StowelPs  famous  judgment  in  Lindo  v.  BeUsario  (Consist. 
Cases,  p.  230),  where  he  examines  in  an  interesting  way  the  requisites 
of  marriage  under  the  '  law  of  nature.' 

2  Canon  VII  of  Session  XXIV  anathematizes  those  who  deny  the 
teaching  of  the  Church  that  the  adultery  of  one  spouse  does  not  dis- 
solve the  vinculum  matrimonii,  and  Canon  X  those  who  deny  that  it  is 
better  and  happier  to  remain  in  a  state  of  virginity  or  celibacy. 


76.     BRYCE:  MARRIAGE  AND  DIVORCE    811 

really  contributed  to  intensify  the  separatist  forces  then  at 
work:  and  from  it  onwards  one  can  no  longer  speak  of  a 
general  marriage  law  even  for  Western  Europe.  Custom 
and  legislation  took  thenceforward  different  courses,  not  only 
as  between  Protestant  and  Roman  Catholic  nations,  but  even 
as  between  different  Protestant  nations,  there  being  no  com- 
mon ecclesiastical  authority  which  Protestant  States  recog- 
nized. Thus  the  era  of  the  Reformation  is  an  era  as  marked 
in  the  history  of  marriage  law  as  was  the  era  of  Constantine, 
when  Christianity  began  to  be  dominant  in  the  Roman  Em- 
pire. And  we  shall  see,  when  we  return  to  the  subject  of 
divorce,  that  this  is  even  more  strikingly  the  case  as  regards 
the  dissolubility  of  marriage  than  as  regards  the  mode  of 
contracting  it. 

Before  passing  on  to  sketch  the  legal  history  of  the  insti- 
tution in  England  —  since  it  is  impossible  to  find  space 
here  for  an  account  of  its  treatment  in  the  laws  of  other 
European  States  —  it  is  well  to  note  what  had  been  the 
general  tendency  of  the  customary  law  of  the  Middle  Ages  • 
upon  the  character  of  the  marriage  relation. 

One  may  sum  up  that  tendency  by  saying  that  it  had 
virtually  expunged  the  free  and  simple  marriage  of  the 
Romans  under  the  later  Republic  and  the  Empire,  and  had 
substituted  for  it  a  system  more  closely  resembling  that  of  the 
religious  marriage  with  Hand  power  of  early  Rome.  The 
ceremony  had  practically  become  a  religious  one,  though 
till  the  Council  of  Trent  a  religious  service  was  not  abso- 
lutely essential  to  its  validity.  The  relation  had  become 
indissoluble,  except  by  the  decree  of  the  Pope,  who  in  this, 
as  in  some  other  respects,  practically  filled  the  place  of  the 
old  Roman  Pontifex,  though  of  course  both  confarreation  * 
and  the  pontiff  had  been  long  forgotten.1  It  carried  with 
it  an  absorption  of  the  personality  of  the  English  wife  into 
that  of  the  husband,  whereby  all  her  property  passed  to 
him  and  she  became  subject  to  his  authority  and  control. 
These  conditions  were  the  result  partly  of  Teutonic  custom, 

1The  pontifices  had  a  certain  oversight  over  the  sacred  marriage  by. 
confarreatio,  and  their  action  was  needed  to  effect  a  di/arreatio,  when 
it  was  desired  to  extinguish  the  manus  of  the  husband  over  a  divorced 
wife. 


812         IX.      WILLS,  DESCENT,  MARRIAGE 

partly  of  the  rudeness  of  life  and  manners ;  and  such  check 
as  was  imposed  on  them  came  from  the  traditions  of  the 
Roman  law,  and  from  the  favour  which  the  Canon  law,  much 
to  its  credit,  showed  to  the  wife.  Of  this  favour  some  have 
found  a  trace  in  the  phrase  that  occurs  in  the  '  Form  for  the 
Solemnization  of  Matrimony  '  in  the  liturgy  of  the  Church 
of  England,  where  the  bridegroom  is  required  to  say  to  the 
bride,  '  with  all  my  worldly  goods  I  thee  endow  ' ;  although, 
in  point  of  fact,  the  law  of  England  gives  to  the  bride  only 
a  very  limited  (and  now  easily  avoidable)  right  to  one- 
third  of  the  husband's  real  estate  after  his  death. l 

XII.  The  English  Law  of  Marriage 

The  influence  of  the  Roman  system  was,  of  course,  less  in 
England  than  in  countries  where,  as  in  France  and  Italy,  the 
Roman  law  had  maintained  itself  in  force,  either  as  written 
law  or  as  the  basis  of  customary  law.  But  now  that  we  come 
to  consider  the  course  .which  the  English  law  of  marriage 
has  taken,  let  us  note  that  this  law  has  flowed  in  two  distinct 
channels  down  till  our  own  time.  So  much  of  it  as  pertained 
to  the  marriage  relation  itself,  that  is  to  say,  to  the  capacity 
for  contracting  marriage  (including  prohibited  degrees), 
to  the  mode  of  contracting  it,  and  to  its  dissolution,  com- 
plete or  partial,  belonged  to  the  canon  or  ecclesiastical  law 
and  was  administered  in  the  spiritual  courts.  So  much  of 
it  as  affected  the  property  rights  of  the  two  parties  (and 
especially  rights  to  land)  belonged  to  the  common  law  and 
was  administered  in  the  temporal  courts.  This  division, 
to  which  there  is  nothing  parallel  in  the  classical  Roman  law, 
was  of  course  due  to  the  fact  that  mediaeval  Christianity, 
regarding  marriage  as  a  sacrament,  placed  it  under  the  con- 
trol of  the  Church  and  her  tribunals  in  those  aspects  which 
were  deemed  to  affect  the  spiritual  well-being  of  the  parties 

1  Others  think  that  this  expression,  which  would  seem  to  refer  not 
to  real  property  but  to  chattels,  is  a  relic  of  ancient  Teutonic  custom. 
As  is  observed  by  Messrs.  Pollock  and  Maitland  (History  of  English 
Law,  vol.  ii.  p.  401),  we  must  not  assume  that,  from  the  days  of  sav- 
agery down  to  our  own,  all  changes  have  been  in  favour  of  women. 
They  had  apparently  more  power  over  their  own  property  in  Anglo- 
Saxon  times  than  in  the  thirteenth  century. 


76.     BRYCE:  MARRIAGE  AND  DIVORCE    813 

to  it.  Nevertheless  the  line  of  demarcation  between  the  two 
sides  was  not  always,  and  indeed  could  hardly  be,  sharply 
or  consistently  drawn.  The  ecclesiastical  courts  had  a  cer- 
tain jurisdiction  as  regards  property.  The  civil  courts  were 
obliged,  for  the  purposes  of  determining  the  right  of  a 
woman  to  dower  and  the  rights  of  intestate  succession,  to 
decide  whether  or  no  a  proper  and  valid  marriage  had  been 
contracted.  Their  regular  course  apparently  was  to  send 
the  matter  to  the  bishop's  court,  and  act  upon  the  judgment 
which  it  pronounced.  But  this  was  not  always  done.  They 
often  had  to  settle  the  question  for  themselves,  applying, 
no  doubt,  as  a  rule  the  principles  which  the  bishop's  court 
would  have  followed,  and  (as  has  been  explained  by  the  latest 
and  best  of  our  English  legal  historians  l )  they  often  evaded 
the  question  of  whether  there  had  been  a  canonically  valid 
marriage  by  finding  that,  as  a  matter  of  fact,  the  parties 
had  been  generally  taken  to  have  been  duly  wedded,  and  by 
proceeding  to  give  effect  to  this  finding. 

The  ecclesiastical  lawyers  were  not  successful  in  their 
treatment  of  such  questions  as  fell  within  their  sphere.  The 
effort  to  base  legal  rules  on  moral  and  religious  principles 
leads  naturally  to  casuistry,  and  away  from  that  common- 
sense  view  of  human  transactions  and  recognition  of  prac- 
tical convenience  which  ought  to  be  the  basis  of  law.  They 
multiplied  canonical  disabilities  arising  whether  from  pre- 
contract, a  matter  to  which  they  gave  a  far  greater  impor- 
tance than  had  previously  belonged  to  it,  or  from  relation- 
ship, either  of  consanguinity  or  of  affinity;  and  they  indeed 
multiplied  these  impediments  to  such  an  extent  as  to  make 
the  capacity  of  any  two  parties  to  enter  into  matrimony 
matter  of  doubt  and  uncertainty,  giving  wide  opportunities 
for  chicane,  and  an  almost  boundless  scope  for  the  interpo- 
sition of  the  Roman  Curia,  whose  sale  of  dispensations  be- 
came a  fertile  and  discreditable  source  of  revenue.  Their 
treatment  of  divorce  will  be  presently  examined.  In  their 
zeal  to  keep  Christian  people  out  of  sin  they  recognized  many 
clandestine  unions  as  valid,  though  irregular,  marriages, 

1  Messrs.  Pollock  and  Maitland,  in  their  admirable  History  of  Eng- 
lish Law,  to  which  the  reader  curious  in  these  matters  may  be  referred. 


814         IX.     WILLS,  DESCENT,  MARRIAGE 

while  at  the  same  time  applying  strict  rules  of  evidence 
which  practically  withdrew  much  of  the  liberty  that  had  been 
granted  by  the  lax  theory  of  what  constituted  a  marriage. 
These  tangled  subtleties  regarding  pre-contracts  and  pro- 
hibited degrees  were  at  the  time  of  the  Reformation  swept 
away  by  a  statute  of  1540  (32  Henry  VIII,  c.  38),  which 
declared  that  all  marriages  should  be  lawful  which  were 
'  not  prohibited  by  Goddis  lawe,'  and  that  '  no  reservation 
or  prohibition,  Goddis  lawe  except,  shall  trouble  or  impeche 
any  marriage  without  the  Levitical  degrees.' 

Two  principles,  however,  remained  unaffected  by  the  legis- 
lation of  this  period  in  England.  The  one  was  the  indissolu- 
bility  of  marriage,  a  topic  to  which  I  shall  presently  return. 
The  other  was  the  freedom  of  entering  into  it,  consent,  and 
consent  alone,  being  still  all  that  was  necessary  to  make  a 
marriage  valid.1  England,  of  course,  did  not  recognize  the 
decrees  of  Trent,  so  the  old  law  continued  in  force  after  that 
Council,  though  motives  like  those  which  had  guided  the 
Council  induced  the  ecclesiastical  courts  to  lean  strongly  in 
favour  of  the  almost  universal  practice  of  marrying  before 
a  clergyman,  and  to  require  in  all  other  cases  very  strict 
evidence  that  a  true  consent.,  directed  to  the  creation  of  law- 
ful matrimony,  had  in  fact  been  given.  Moreover,  where  the 
marriage  had  been  irregular,  the  spiritual  courts  might 
compel  its  celebration  in  the  face  of  the  Church.  So  things 
went  on,  with  much  uncertainty  and  some  confusion  between 
the  act  needed  to  constitute  marriage  and  the  evidence  of 
that  act,  till  the  middle  of  the  eighteenth  century,  when  a 
statute  was  passed  in  A.  D.  1753  (26  Geo.  II,  c.  33)  which 
required  all  marriages  to  be  celebrated  by  a  clergyman  and 
in  a  church  (unless  by  dispensation  from  the  Archbishop  of 
Canterbury),  and  prescribed  other"  formalities.2  These  pro- 
visions remained  in  force  (except  as  to  Jews  and  Quakers) 

1  The  House  of  Lords  was  equally  divided  upon  this  point  in  the  case 
of  Reg.  v.  Millis,  in  1843:    but  historical  inquiry  tends  to  confirm  the 
view  of  Lord  Stowell,  that  the  presence  of  a  clergyman  was  not  essen- 
tial  (see  Dalrymple  v.  Dalrymple,  2  Haggard,  p.  54). 

2  The  English  Dissenters  soon  began  to  complain  of  this  Act,  as  they 
were  thenceforth  (until  1836)  obliged  to  be  married  in  church.     Charles 
James  Fox  used  to  denounce  the  Act  as  'contrary  to  the  Law  of  Na- 
ture.' 


76.     BRYCE:  MARRIAGE  AND  DIVORCE    815 

until  1836,  when  a  purely  civil  marriage  before  a  Registrar 
was  permitted  as  an  alternative  to  the  ecclesiastical  cere- 
mony. 1  During  the  Commonwealth  marriages  had  been  con- 
tracted before  justices  of  the  peace,  but  the  Restoration 
legislation,  while  validating  the  marriages  so  formed,  abol- 
ished the  practice.  The  old  law  remained  in  Ireland,  and 
that  was  how  the  question  what  kind  of  marriage  ceremony 
was  required  by  the  common  law  came  before  the  House  of 
Lords  in  the  famous  case  of  Reg.  v.  Millis,  which  was  an 
Irish  appeal,  and  the  decision  in  which,  declaring  that  by 
the  common  law  the  presence  of  a  clergyman  was  required 
to  make  a  marriage  valid,  seems  to  have  been  erroneous. 


XIII.  Property  Relation*  of   the  Consorts  under  English 

Law 

Now  let  us  turn  to  the  effect  of  marriage  in  the  law  of 
England  upon  the  property  and  the  personal  rights  of  the 
wife. 

That  effect  has  generally  been  described  as  making  the 
two  consorts  one  person  in  the  law.  Such  they  certainly 
were  for  some  purposes  under  the  older  Common  Law  of 
England.  The  husband  has  the  sole  management  of  all  the 
property  which  the  wife  had  when  married,  or  which  she 
subsequently  received  or  earned  by  her  exertions.  In  ac- 
quiring all  her  property  he  becomes  also  liable  for  the  debts 
which  she  owed  before  marriage,  but  after  marriage  he  has 
not  to  answer  for*  any  contract  of  hers,  because  her  agree- 
ments do  not  bind  him  except  for  necessaries.  He  is,  more- 
over, liable  for  wrongs  done  by  her.  He  cannot  grant  any- 
thing to  her,  or  covenant  with  her;  and  if  there  was  any 
contract  between  him  and  her  before  marriage,  it  disappears 
by  her  absorption  into  his  personality.  She  can  bring  no 
action  without  joining  him  as  plaintiff,  nor  can  she  be  sued 

*A  civil  marriage  is  not,  however,  compulsory  in  England  as  it  is  in 
France  and  some  other  continental  countries.  In  Scotland  it  has  now 
become  fashionable  for  Presbyterians  to  be  wedded  in  church,  but  the 
Scottish  law,  as  every  one  knows,  does  not  prescribe  either  a  clergy- 
man or  a  registrar. 


816         IX.      WILLS,  DESCENT,  MARRIAGE 

without  joining  him  as  defendant.  She  cannot  give  evidence 
for  or  against  him  (save  where  the  offence  is  against  her- 
self) ;  and  if  she  commit  a  crime  (other  than  treason  or  mur- 
der) along  with  him,  she  goes  unpunished  (though  for 
.crimes  committed  apart  from  him  she  may  be  prosecuted), 
on  the  hypothesis  that  she  did  it  under  his  compulsion.  So 
in  a  case,  in  the  thirteenth  century,  where  husband  and  wife 
had  produced  a  forged  charter,  the  husband  was  hanged 
and  the  wife  went  free,  '  because  she  was  under  the  rod  of 
her  husband'  (quia  fuit  sub  virga  viri  sui1). 

But  this  theory  of  unity  is  not  so  consistently  maintained 
as  was  the  similar  theory  of  the  Romans  regarding  the  mar- 
riage with  Hand  power.  For  the  wife's  consent  to  legal  acts 
may  be  effectively  given  where  she  has  been  separately  ex- 
amined by  the  Court  to  ascertain  that  her  consent  is  free; 
and  even  the  fact  that  she  must  be  joined  in  legal  proceed- 
ings taken  by  or  against  her  shows  that  she  has  a  personality 
of  her  own,  whereas  under  the  Roman  manus  she  was  wholly 
sunk  in  that  of  her  husband.  Thus  it  is  better  not  to  at- 
tempt to  explain  the  wife's  position  as  the  result  of  any  one 
principle,  but  rather  to  regard  it  as  a  compromise  between 
the  three  notions  of  absorption,  of  a  sort  of  guardianship, 
and  of  a  kind  of  partnership  of  property  in  which  the  hus- 
band's voice  normally  prevails. 

As  respects  her  personal  safety,  she  was  better  off  than 
the  Roman  wife  of  early  days,  for  the  husband  could  punish 
the  latter  apparently  even  with  death,  after  holding  a  domes- 
tic council,  whereas  the  English  husband  could  do  no  more 
than  administer  chastisement,  and  that  only  to  a  moderate 
extent.  The  marital  right  of  chastisement  seems  to  have 
been  an  incident  to  marriage  in  many  rude  societies.  A  trav- 
eller among  the  native  tribes  of  Siberia  relates  that  he  found 
a  leather  whip  usually  hung  to  the  head  of  the  conjugal  bed, 
almost  as  a  sort  of  sacred  symbol  of  matrimony;  and  he 
was  told  that  the  wife  complained  if  her ;  husband  did  not 
from  time  to  time  use  the  implement,  regarding  his  neglect 
to  do  so  as  a  sign  of  declining  affection.  And  it  would  seem 

1  Pollock  and  Maitland,  vol.  ii.  ch.  vii.  p.  404  (quoting  Bracton,  429  b)c 


76.     BRYCE:  MARRIAGE  AND  DIVORCE    817 

that  this  notion  remains  among  the  peasantry  of  European 
Russia  to  this  day.1 

Everybody  has  heard  of  the  odd  habit  of  selling  a  wife 
which  still  occasionally  recurs  among  the  humbler  classes  in 
England;  and  most  people  suppose  that  it  descends  from  a 
time  when  the  Teutonic  husband  could  sell  his  consort,  as 
a  Roman  one  apparently  could  in  the  days  of  Hand  power. 
There  is,  however,  no  trace  at  all  in  our  law  of  any  such 
right, 2  though  a  case  is  reported  to  have  arisen  in  A.  D. 
1302,  when  a  husband  granted  his  wife  by  deed  to  another 
man,  with  whom  she  thereafter  lived  in  adultery.  3 

The  compensation  given  to  the  English  wife  for  the  loss 
(or  suspension  during  the  marriage)  of  her  control  over  her, 
property  is  to  be  found  in  her  right  of  Dower,  that  is,  of 
taking  on  her  husband's  death  one-third  of  such  lands  as  he 
was  seised  of,  not  merely  at  his  death,  but  at  any  time  dur- 
ing the  marriage,  and  which  any  issue  of  the  marriage  might 
have  inherited.  As  this  right  interfered  with  the  husband's 
power  of  freely  disposing  of  his  own  land,  the  lawyers  set 
about  to  find  means  of  evading  it,  and  found  these  partly  in 
legal  processes  by  which  the  wife,  her  consent  being  ascer- 
tained by  the  courts,  parted  with  her  right,  partly  by  an 
ingenious  device  whereby  lands  could  be  conveyed  to  a  hus- 
band without  the  right  of  dower  attaching  to  them,  partly 
by  giving  the  wife  a  so-called  jointure  which  barred  her 
claim.  The  wife  has  also  a  right,  which  of  course  the  hus- 
band can  by  will  exclude,  of  succeeding  in  case  of  intestacy 
to  one-third  of  his  personal  property,  or,  if  he  leave  no  issue, 
to  one-half. 

This  state  of  things  hardly  justifies  the  sleek  optimism 
of  Blackstone,  who  closes  his  account  of  the  wife's  position 
by  observing,  '  even  the  disabilities  which  the  wife  lies  under 
are,  for  the  most  part,  intended  for  her  protection  and  bene- 
fit. So  great  a  favourite  is  the  female  sex  of  the  laws  of 

1  Kovalevsky,  Modern  Customs  and  Ancient  Laws  of  Russia,  p.  44. 

2  My  friend  Mr.  F.  W.  Maitland,  whose  authority  on  these  matters 
is  unsurpassed,  informs  me  that  he  knows  of  no  such  trace.     The  prac- 
tice, however,  seems  to  have  been  not  uncommon.     Several  instances  of 
the  sale  of  a  wife  by  auction,  sometimes  along  with  a  child,  are  reported 
from  Kent  between  1811  and  1820. 

'See  Pollock  and  Maitland,  vol.  ii.  p.  395. 


818         IX.     WILLS,  DESCENT,  MARRIAGE 

England.'  The  Romans,  although  they  allowed  to  women 
a  fuller  independence,  were  more  candid  when  they  said: 
*  In  many  points  of  our  law  the  condition  of  the  female  sex 
is  worse  than  that  of  the  male.' 


XIV.  Gradual  Amendment  of  the  English  Matrimonial  Law 

However,  the  Courts  of  Equity  ultimately  set  themselves 
in  England  to  improve  the  wife's  condition.  They  recog- 
nized some  contracts  and  grants  between  husband  and  wife. 
They  allowed  property  to  be  given  to  trustees  for  the  sole 
and  separate  use  of  a  wife;  and  if  it  was  given  to  her  with 
an  obvious  intent  that  it  should  be  for  her  exclusive  benefit, 
they  held  the  husband,  in  whom  by  operation  of  the  general 
law  it  would  vest,  to  be  a  trustee  for  the  wife.  When  dur- 
ing marriage  there  came  to  a  wife  by  will  or  descent  any 
property  of  which  the  husband  could  obtain  possession  only 
by  the  help  of  a  Court  of  Equity,  they  required  him  to  settle 
a  reasonable  part  of  it  upon  the  wife  for  her  separate  use. 
And  in  respect  of  her  separate  property,  they  furthermore 
permitted  the  wife  to  sue  her  husband,  or  to  be  sued  by  him. 
While  these  changes  were  in  progress,  there  had  grown  up 
among  the  wealthier  classes  the  habit  of  making  settlements 
on  marriage  which  secured  to  the  wife,  through  the  instru- 
mentality of  trustees,  separate  property  for  her  sole  use, 
and  wherever  a  woman  was  a  ward  of  Court,  the  Court  in- 
sisted, in  giving  its  consent  to  the  marriage,  that  such  a 
settlement  should  be  made  for  her  benefit. 

By  these  steps  a  change  had  been  effected  in  the  legal 
position  of  women  as  regards  property  similar  to,  though 
far  more  gradual,  and  in  its  results  falling  far  short  of,  the 
change  made  at  Rome  when  the  marriage  without  Hand 
power  became  general.  But  in  England  a  recourse  to  the 
Courts  has  always  been  the  luxury  of  the  rich;  and  as  the 
middle  and  poorer  classes  were  not  wont  to  go  to  the  Courts, 
or  to  make  settlements,  it  was  only  among  the  richer  classes 
that  the  wife's  separate  estate  can  be  said  to  have  existed. 
At  last,  however,  the  gross  injustice  of  allowing  a  selfish  or 
wasteful  husband  to  seize  his  wife's  earnings  and  neglect  her 


76.     BRYCE:  MARRIAGE  AND  DIVORCE    819 

was  so  far  felt  that  several  Acts  were  passed  (the  first  in 
1857),  under  which  a  woman  deserted  by  her  husband  may 
obtain  from  a  magistrate  a  judicial  order,  protecting  from 
him  any  property  she  may  acquire  after  desertion.  By  this 
time  an  agitation  had  begun  to  secure  wider  rights  for  mar- 
ried women.  It  had  great  difficulties  to  overcome  in  the 
conservative  sentiment  of  lawyers,  and  of  those  who  are  led 
by  lawyers,  and  more  especially  of  members  of  the  House  of 
Lords.  Not  till  1870  did  the  British  Parliament  take  the 
step  which  the  Romans  had  taken  long  before  the  Christian 
era,  and  which  many  American  States  had  taken  in  the  first 
half  of  the  nineteenth  century.  A  statute  of  that  year, 
amended  and  extended  by  others  of  1874  and  1882,  swept 
away  the  old  rule  which  carried  all  the  wife's  property  over 
to  the  husband  by  the  mere  fact  of  marriage ;  so  that  now 
whatever  a  woman  possesses  at  her  marriage,  or  receives 
after  it,  or  earns  for  herself,  remains  her  own  as  if  she  were 
unmarried,  while  of  course  the  husband  no  longer  becomes 
liable  by  marriage  to  her  ante-nuptial  debts.  By  these  slow 
degrees  has  the  English  wife  risen  at  last  to  the  level  of  the 
Roman.  The  practice  of  making  settlements  on  marriage 
still  remains,  especially  where  the  wife's  property  is  large, 
or  where  there  is  any  reason  to  distrust  the  bridegroom; 
for  though  the  interposition  of  trustees  is  no  longer  needed 
to  keep  the  property  from  falling  by  operation  of  law  into 
the  husband's  grasp,  he  may  still  press  or  persuade  her  to 
part  with  it,  since  she  now  enjoys  full  disposing  power,  and 
if  she  does  part  with  it,  she  and  the  children  may  suffer. 
Thus  custom  sustains  in  England,  and  perhaps  will  long 
sustain,  a  system  resembling  that  of  the  Roman  Dos.  Yet 
the  number  of  persons  possessing  some  property  who  marry 
without  a  settlement  increases,  as  does  the  number  of  women 
whose  strength  of  will  and  knowledge  of  business  enables 
them  to  hold  their  own  against  marital  coaxing  or  coercion. 
It  need  hardly  be  said  that  the  personal  liberty  of  the 
wife  was  established  long  before  her  right  to  separate  prop- 
erty. Says  Blackstone  (writing  in  1763)  :  — 

'  The  husband  by  the  old  law  might  give  his  wife  moderate 
correction.     For  as  he  is  to  answer  for  her  misbehaviour,  the 


820         IX.     WILLS,  DESCENT,  MARRIAGE 

law  thought  it  reasonable  to  entrust  him  with  his  power  of  re- 
straining her,  by  domestic  chastisement,  in  the  same  moderation 
that  a  man  is  allowed  to  correct  his  apprentices  or  children,  for 
whom  the  parent  is  also  liable  in  some  cases  to  answer.  But 
this  power  of  correction  was  confined  within  reasonable  bounds, 
and  the  husband  was  prohibited  from  using  any  violence  to  his 
wife  aliter  quam  ad  virum,  ex  causa  regiminis  et  castigationis 
uxoris  suae,  licite  et  rationabiliter  pertinet.  But  in  the  politer 
reign  of  Charles  the  Second  this  power  of  correction  began  to 
be  doubted,  and  a  wife  may  now  have  security  of  the  peace 
against  her  husband,  or,  in  return,  a  husband  against  his  wife. 
Yet  the  lower  rank  of  people,  who  were  always  fond  of  the  old 
common  law,  still  claim  and  exert  their  ancient  privilege;  and 
the  Courts  of  Law  will  still  permit  a  husband  to  restrain  a  wife 
of  her  liberty  in  case  of  any  gross  misbehaviour/  * 

This  touching  attachment  to  their  old  common  law  still 
survives  among  '  the  lower  rank  of  people  '  in  the  form  of 
wife  beating.  But  among  the  politer  classes  the  right  to 
restrain  a  consort's  liberty  (except  under  very  special  cir- 
cumstances) may  be  deemed  to  have  become  exploded  since 
the  case  of  Reg.  v.  Jackson  in  189 1.2  So  that  now  the  Eng- 
lish wife,  like  the  Roman,  may  quit  her  husband's  bouse 
when  she  pleases,  and  the  suit  for  restitution  of  conjugal 
rights,  whereby  either  could  compel  the  other  to  live  in  the 
common  household,  is  falling  into  disuse,  if  indeed  it  can  still 
be  described  as  in  any  sense  effective  since  the  Act,  passed 
in  1884,  which  took  away  the  remedy  by  attachment. 

The  interest  which  belongs  to  these  changes  in  the  law, 
changes  generally  similar  in  their  result  in  the  English  and 
in  the  Roman  systems,  though  far  more  gradually  made  in 
the  former  than  in  the  latter,  is  the  interest  of  observing 
the  methods  whereby  custom  and  legislation  have  sought  to 

1  Blackstone,  Commentaries,  vol.  i.  bk.  i.  chap.  15. 

21  Q.  B.  p.  671  (in  the  Court  of  Appeal).  The  judgments  are  in- 
structive. The  Master  of  the  Rolls  goes  so  far  as  to  doubt  whether  the 
husband  ever  had  a  legal  power  of  correction,  a  curious  instance  of  the 
way  in  which  the  sentiment  of  a  later  time  sometimes  tries  to  force 
upon  the  language  of  an  older  time  a  non-natural  meaning,  the  new 
sentiment  being  one  which  the  older  time  would  have  failed  to  under- 
stand. It  would  have  been  simpler  to  admit  th£t  what  may  well  have 
'been  law  in  the  seventeenth  century  is  not  to  be  taken  to  be  law  now, 
^manners  and  ideas  having  so  completely  changed  as  to  render  the  old 
rules  obsolete. 


76.     BRYCE.  MARRIAGE  AND  DIVORCE    821 

work  out  different  possible  theories  of  the  marriage  relation. 
There  are  usually  said  to  be  two  theories,  that  of  Mastery, 
and  that  of  Equality.  On  the  former  the  husband  is  lord 
of  the  wife's  property  as  well  as  of  her  person.  The  law  puts 
her  at  his  mercy,  trusting  that  affection,  public  opinion,  and 
a  regard  for  domestic  comfort  will  restrain  the  exercise  of 
his  rights.  On  the  other  theory,  each  consort  is  a  law 
to  him-  or  herself,  each  can  dispose  of  his  or  her  prop- 
erty, time,  and  local  presence  without  the  assent  of  the 
other.  The  law  allows  this  freedom  in  the  hope  that  af- 
fection, respect,  and  the  opinion  of  society  will  prevent  its 
abuse.  Yet  these  two  theories,  that  with  which  both  Rome 
and  England  began,  that  with  which  both  Rome  and  Eng- 
land have  ended,  do  not  exhaust  the  possibilities  of  the  rela- 
tion. For  there  is  a  third  theory  which,  more  or  less  con- 
sciously felt  to  be  present,  has  influenced  both  the  one  and 
the  other,  creating  a  sort  of  compromise  between  them.  It 
is  the  theory  of  a  partnership  in  social  life  and  in  property 
similar  to  the  partnership  which  necessarily  exists  as  re- 
gards the  children  of  a  marriage.  This  idea  is  expressed 
by  the  form  which  the  Mastery  theory  took  when  it  declared 
husband  and  wife  to  be  '  one  person  in  the  law,'  and  in  the 
Anglican  marriage  service  where  the  wife's  promise  to  obey  * 
is  met  by  the  husband's  declaration  that  he  endows  her  with 
all  his  worldly  goods.  It  also  qualifies  the  theory  of  Equality 
and  Independence  by  the  practice  of  creating  a  settlement 
in  England,  and  a  Dos  (and  Donatio  propter  nuptias)  at 
Rome,  in  which  each  of  the  married  pair  has  an  interest. 

Any  one  can  see  that  the  Mastery  theory,  against  which 
modern  sentiment  revolts,  was  more  defensible  in  a  time  of 
violence,  when  protection  for  life  and  property  had  to  be 
secured  by  physical  force  as  well  as  by  recourse  to  the  law, 
than  it  is  to-day.  Any  one  can  also  see  that  there  are  even 
to-day  households  for  which  the  Mastery  theory  may  be  well 
suited,  as  there  also  are,  and  always  have  been,  even  in  days 
of  rudeness  and  in  Musulman  countries,  other  households 

1This  promise  does  not  appear  in  the  forms  of  marriage  service 
commonly  used  by  the  unestablished  churches  of  England,  or  most  of 
them. 


1 
822         IX.      WILLS,  DESCENT,  MARRIAGE 

where  the  wife  was,  and  rightly  was,  the  real  head  of  the 
family.  Those  moreover  who,  judging  of  other  times  by 
their  own,  think  that  the  position  of  the  wife  and  of  women 
generally  must  have  been,  under  the  Mastery  theory,  an  in- 
tolerable one,  need  to  be  reminded  not  only  that  the  practical 
working  of  family  life  depends  very  largely  on  the  respective 
characters  of  the  persons  within  the  family,  and  on  the 
amount  of  affection  they  entertain  for  one  another,  but  also 
that  it  is  profoundly  modified  by  the  conception  of  their 
relations  which  rules  the  minds  of  these  persons.  Law,  itself 
the  product  and  the  index  of  public  opinion,  moulds  and 
solidifies  that  conception,  and  the  wife  of  the  old  stern  days 
of  marital  tyranny  saw  no  indignity  or  hardship  in  that 
position  of  humble  obedience  which  the  independent  spirit 
of  our  own  time  resents. 

XV.  Divorce  under  the  Canon  Law 

There  is  one  more  point  in  which  opposite  theories  of  mar- 
riage have  to  be  contrasted,  and  in  which  the  contrast  ap- 
pears most  strikingly.  This  is  the  point  which  touches  the 
permanence  of  the  relation. 

We  have  already  seen  what  were  the  provisions  of  the 
Roman  law  upon  the  subject  of  Divorce.  Those  provisions 
continued  to  prevail  in  Western  Europe  after  the  fall  of  the 
Empire,  until,  apparently  in  the  eighth,  ninth,  and  tenth 
centuries,  new  rules  enforced  by  the  Church  superseded  them 
in  the  regions  where  the  imperial  law  had  been  observed.  A 
similar  change  occurred  later  in  other  countries  such  as 
England  and  Germany,  where  the  ancient  customs  of  the 
barbarian  tribes  had  allowed  the  husband,  and  apparently 
in  some  cases  the  wife  also,  to  dissolve  the  marriage  and  de- 
part. From  the  twelfth  century  onwards  the  ecclesiastical 
rules  and  courts  had  undoubted  control  of  this  branch  of  law 
all  over  Christian  Europe.  Now  the  Church  held  marriage 
to  be  a  sacrament  and  to  be  indissoluble.  Divorce,  therefore, 
in  the  proper  sense  of  the  term,  as  a  complete  severance  of 
a  duly  constituted  matrimonial  tie,  was  held  by  the  Church 
inadmissible.  This  view  was  based  on  the  teaching  of  our 


76.     BRYCE:  MARRIAGE  AND  DIVORCE    823 

Lord  as  given  in  the  Gospels,1  and  was  enforced  on  every 
bridal  pair  in  the  liturgical  form  employed  at  marriage,  as 
indeed  it  is  in  the  English  liturgy  to-day.  Nevertheless,  the 
Church  recognized  two  legal  processes  which  were  popu- 
larly, though  incorrectly,  called  divorces.  *n 

One  of  these,  called  the  divorce  from  the  bond  of  mar- 
riage (a  vinculo  matrimonii) ,  was  in  reality  a  declaration 
by  ecclesiastical  authority  —  that  of  the  Pope,  or  a  deputy 
acting  under  him  —  that  the  marriage  had  been  null  from 
the  beginning  on  the  ground  of  some  canonical  impediment, 
such  as  relationship  or  pre-contract.  As  already  observed, 
the  rules  regarding  impediments  were  so  numerous  and  so 
intricate  that  it  was  easy,  given  a  sufficient  motive,  whether 
political  or  pecuniary,  to  discover  some  ground  for  declaring 
almost  any  marriage  invalid.  The  practice  of  granting 
divorces  of  this  class,  which  was  constantly  made  a  means 
of  obliging  the  great  ones  of  the  earth  and  augmenting 
papal  revenues,  may  sometimes  have  been  really  useful  for 
the  purpose  of  dissolving  the  ill-assorted  unions  of  those 
who  could  secure  a  decree  from  the  ecclesiastical  authorities. 
Technically,  however,  it  was  not  a  dissolution  of  marriage,  but 
a  declaration  that  no  marriage  had  ever  existed,  and  there- 
fore it  rendered  children  born  in  the  relation  illegitimate.2 

The  other  kind  of  divorce  was  that  called  '  from  board 
•and  bed  '  (a  mensa  et  thoro).  It  was  a  regular  part  of  the 
jurisdiction  of  the  Church  Courts,  and  effected  a  legal  sepa- 
ration of  the  two  parties  from  their  joint  life  in  one  house- 
hold, while  leaving  them  still  man  and  wife,  and  therefore 
unable  to  marry  any  other  person.  The  status  of  the  chil- 
dren was  of  course  not  affected. 

XVI.  The  Later  Law  of  Divorce  in  England  and  Scotland 

This  law  prevailed  over  all  Europe  till  the  Reformation, 
and  continued  to  prevail  in  all  Roman  Catholic  countries 

1  Messrs.  Pollock  and  Maitland  refer  to  the  dooms  of  Aethelbert  as 
showing  the  permissibility  of  divorce  in  early  English  law  (History  of 
English  Law,  vol.  ii.  p.  390). 

2  But  canonical  ingenuity  discovered  methods  by  which  in  some  cases 
the  legitimacy  of  the  children  might  be  saved  though  the  marriage  was 
declared  void. 


824         IX.      WILLS,  DESCENT,  MARRIAGE 

till  a  very  recent  time.  In  some  it  still  prevails,  at  least 
so  far  as  Roman  Catholics  are  concerned.  But  in  most 
Protestant  countries  it  received  a  fatal  shock  from  the  denial, 
in  which  all  Protestants  agreed,  of  the  sacramental  character 
of  marriage,  and  from  the  revival,  in  some  of  such  countries, 
of  the  view  of  marriage  as  a  purely  civil  contract.  Thus  in 
Scotland  the  courts  began,  very  soon  after  the  Roman  con- 
nexion had  been  repudiated,  to  grant  divorces ;  and  in  A.  D. 
1573  a  statute  added  desertion  to  adultery  as  a  ground  for 
divorce.  In  England,  however,  where  the  revulsion  against 
the  doctrines  of  mediaeval  Christianity  was  less  pronounced, 
and  where  the  Ecclesiastical  Courts  retained  their  jurisdic- 
tion in  matrimonial  causes,  the  old  law  went  on  unchanged, 
save  that  after  the  abolition  of  many  of  the  canonical  im- 
pediments, mentioned  above,  divorces  a  vmculo,  declaring 
marriages  to  have  been  originally  invalid,  became  far  more 
rare.  Nevertheless,  attempts  had  been  made  by  some  of  the 
more  energetic  English  Reformers  to  assert  the  dissolubility 
of  marriage.  A  draft  ecclesiastical  code  (called  the  Refor- 
matlo  legum  ecclesiasticarum)  was  prepared,  but  never  en- 
acted; and  Milton  argued  strongly  on  the  same  side  in  his 
well-known  but  little  read  book.  About  his  time  cases  begin 
to  occur  in  which  marriages  were  dissolved  by  Acts  of  Par- 
liament; a  practice  which  became  more  frequent  under  the 
Whig  regime  of  the  early  Hanoverian  kings,  and  ultimately 
ripened  into  a  regular  procedure  by  which  those  who  could 
afford  the  expense  might  secure  divorces.  The  party  seek- 
ing divorce  was  required  to  first  obtain  from  the  Ecclesias- 
tical Court  a  divorce  a  mensa  et  thoro,  which  obtained,  he 
introduced  his  private  Bill  for  a  complete  divorce.  It  was 
heard  by  the  House  of  Lords  as  a  practically  judicial  mat- 
ter, in  which  evidence  was  given,  and  counsel  argued  the 
case  for  and  (if  the  other  party  resisted)  against  the  di- 
vorce. It  was  usually  by  the  husband  that  these  divorce 
Bills  were  promoted,  and  indeed  no  wife  so  obtained  a  divorce 
till  A.  D.  1801.1 

1  There  had  also  sprung  up  the  practice  of  effecting  private  separa- 
tions between  a  husband  and  a  wife  by  means  of  a  deed  executed  by 
each  of  them,  and  such  a  deed  presently  came  to  be  recognized  as  a 
defence  to  a  suit  by  either  party  for  the* restitution  of  conjugal  rights. 


76.     BRYCE:  MARRIAGE  AND  DIVORCE    825 

This  characteristically  English  evasion  of  that  principle 
of  indissolubility  for  which  such  immense  respect  was  pro- 
fessed lasted  till  1857,  long  before  which  time  the  existence 
of  a  law  which  gave  to  the  rich  what  it  refused  to  the  poor 
had  become  a  scandal.1  In  that  year  an  Act  was  passed, 
not  without  strenuous  opposition  from  those  who  clung  to 
the  older  ecclesiastical  theory,  which  established  a  new  Court 
for  Divorce  and  Matrimonial  causes,  empowered  to  grant 
either  a  complete  dissolution  of  marriage  (divorce  a  vinculo 
matrimonii)  or  a  'judicial  separation'  (divorce  a  mensa  et 
thoro).  This  statute  adhered  to  the  rule  which  the  practice 
of  the  House  of  Lords  had  established,  and  under  it  a  hus- 
band may  obtain  a  divorce  on  proof  of  the  wife's  infidelity, 
whereas  the  wife  can  obtain  it  only  by  proving,  in  addition 
to  the  fact  of  infidelity  on  the  husband's  part,  either  that 
it  was  aggravated  by  bigamy  or  incest,  or  that  it  was  ac- 
companied by  cruelty  or  by  two  years'  desertion.  To  pre- 
vent collusion  a  public  functionary  called  the  Queen's  Proc- 
tor is  permitted  to  intervene  where  he  sees  grounds  for  do- 
ing so.  Misconduct  by  the  husband  operates  as  a  bar  toe 
his  obtaining  a  divorce.  Thus  the  law  of  England  stands 
to-day.  Attempts  have  been  made  to  alter  it  on  the  basis 
of  equality,  so  that  whatever  misconduct  on  the  wife's  part 
entitles  a  husband  to  divorce  shall,  if  committed  by  the  hus- 
band, entitle  her  likewise  to  have  the  marriage  dissolved. 
But  these  attempts  have  not  so  far  succeeded.2 

The  law  of  Scotland  is  more  indulgent,  and  not  only  per- 
mits a  wife  to  obtain  divorce  for  a  husband's  infidelity  alone, 
but  also  recognizes  wilful  desertion  for  four  years  as  a 
ground  for  divorce.  In  other  respects  its  provisions  are 
generally  similar  to  those  of  the  English  law.  Ireland,  how- 
ever, remains  under  the  old  pre-Reformation  system."  There 

1  Probably  the  English  Jews  were  permitted  to  exercise  in  the  seven- 
teenth and  eighteenth  centuries  the  right  of  divorce  which  their  own  law 
gave  them.  But  in  those  days  the  Jews  were  so  cut  off  from  the  gen- 
eral English  society  that  the  phenomenon  passed  almost  unnoticed. 
They  were  a  very  small  community,  living  practically  under  their  per- 
sonal law,  as  the  Parsis  do  in  Western  India  to-day. 

2 The  Act  of  1857  (amended  in  some  points  by  subsequent  statutes) 
contains  provisions  intended  to  prevent  collusion  between  the  parties, 
and  empowers  the  Court  to  regulate  the  property  rights  of  the  divorced 
persons  and  the  custody  of  the  children  (if  any)  of  the  marriage. 


826         IX.     WILLS,  DESCENT,  MARRIAGE 

is  no  Divorce  Court,  and  no  marriage  can  be  dissolved  save 
by  Act  of  Parliament.  The  bulk  of  the  people  are  Roman 
Catholics,  and  among  Protestants  as  well  as  Roman  Catho- 
lics the  level  of  public  sentiment  and  of  conjugal  morality 
has  apparently  been  higher  than  in  England,  nor  have  at- 
tempts been  made,  at  any  rate  in  recent  years,  to  obtain 
the  freedom  which  England  and  Scotland  possess.  The 
United  Kingdom  thus  shows  within  its  narrow  limits  the 
curious  phenomenon  of  three  dissimilar  systems  of  law  regu- 
lating a  matter  on  which  it  is  eminently  desirable  that  the 
law  should  be  uniform.  England  has  a  comparatively  strict 
rule,  and  one  which  is  unequal  as  between  the  two  parties. 
Scotland  is  somewhat  laxer,  but  treats  both  parties  alike. 
Ireland  has  no  divorce  at  all.  So  little  do  theoretical  consid- 
erations prevail  against  the  attachment  of  a  nation  to  its 
own  sentiments  and  usages. 

I  reserve  comments  on  these  systems  till  we  have  followed 
out  the  history  of  the  English  matrimonial  law  in  the  widest 
and  most  remarkable  field  of  its  development,  the  United 
States  of  America. 

XVII.  The  Divorce  Laws  of  the  United  States 

When  the  thirteen  Colonies  proclaimed  their  separation 
from  Great  Britain  in  1776,  they  started  with  the  Common 
Law  and  all  such  statute  law  as  had  in  fact  been  in  force  at 
the  date  of  the  separation.  Accordingly  they  had  no  pro- 
vision for  dissolving  marriages,  nor  any  Ecclesiastical 
Courts  to  grant  dissolutions,  seeing  that  such  tribunals  had 
never  existed  in  America,  where  there  had  been  no  bishops. 
Presently,  however,  they  began  to  legislate  on  the  subject, 
and  the  legislation  which  they,  and  the  newer  States  added 
to  the  Union  since  1789,  have  produced  presents  the  largest 
and  the  strangest,  and  perhaps  the  saddest,  body  of  legis- 
lative experiments  in  the  sphere  of  family  law  which  free, 
self-governing  communities  have  ever  tried.  Both  mar- 
riage and  divorce  belong,  under  the  American  Constitution, 
to  the  several  States,  Congress  having  no  right  to  pass  any 
laws  upon  the  subject,  except  of  course  for  the  District  of 


76.     BRYCE:  MARRIAGE  AND  DIVORCE    827 

Columbia  and  the  Territories.  Thus  every  one  of  the  (now) 
forty-five  States  has  been  free  to  deal  with  this  incomparably 
difficult  and  delicate  matter  at  its  own  sweet  will,  and  the 
variety  of  provisions  is  endless.  As  it  would  require  a  great 
deal  of  space  to  present  these  in  detail,  I  shall  touch  on  only 
some  salient  points. 

Originally,  the  few  divorces  that  were  granted  were  ob- 
tained, following  the  example  of  England,  by  means  of  Acts 
of  the  State  legislature.  The  evils  of  this  plan  were  per- 
ceived, and  now  nearly  all  the  States  have  by  their  Consti- 
tutions forbidden  the  legislature  to  pass  such  Acts,  since 
Courts  have  been  provided  to  which  application  may  be 
made.  These  are  usually  either  the  ordinary  inferior  Courts 
of  the  State,  or  the  Chancery  Courts  (where  such  survive). 
No  State  seems  to  have,  like  England,  erected  a  special 
Court  for  the  purpose.  One  State  only,  South  Carolina, 
does  not  recognize  divorce  at  all.  In  1872,  under  the  so- 
called  '  carpet-bagger  government,'  set  up  after  the  War 
of  Secession,  a  statute  was  passed  in  that  State  authorizing 
divorces  for  infidelity  or  desertion,  but  in  1878,  when  the 
native  whites  had  regained  control,  this  statute  was  repealed, 
so  that  now,  if  a  divorce  is  obtained  at  all,  it  must  be  ob- 
tained from  the  legislature  outside  the  regular  law.  South 
Carolina  has  the  distinction  of  being  to-day  probably  the 
only  Protestant  community  in  the  world  which  continues  to 
hold  marriage  indissoluble.  No  State  has  fewer  Roman 
Catholic  citizens:  Presbyterians  and  Methodists  are  the 
strongest  religious  bodies. 

The  causes  for  which  divorce  may  be  granted  range  down- 
wards from  the  strictness  of  such  a  conservative  State  as 
New  York,  where  conjugal  infidelity  is  the  sole  cause  recog- 
nized for  an  absolute  dissolution  of  the  marriage,  to  the 
laxity  of  Washington,  where  the  Court  may  grant  divorce 
'  lor  any  cause  deemed  by  it  sufficient,  and  when  it  shall  be 
satisfied  that  the  parties  can  no  longer  live  together.'  De- 
sertion is  in  nearly  all  States  recognized  as  a  ground  for 
dissolution.  So  is  cruelty  by  either  party,  or  the  reasonable 
apprehension  of  it  by  either.  So  in  many  States  the  neglect 
of  the  husband  to  provide  for  the  wife,  habitual  intemper- 


828         IX.      WILLS,  DESCENT,  MARRIAGE 

ance,  indignities  or  insulting  treatment,  violent  temper,  and 
(in  a  smaller  number)  the  persistent  neglect  of  her  domestic 
duties  by  the  wife,  grave  misconduct  before  marriage  un- 
known to  the  other  party,  insanity,  an  indictment  for  felony 
followed  by  flight,  vagrancy,  are,  or  have  been,  prescribed 
as  among  the  sufficient  grounds  for  divorce.  In  some  States 
a  sentence  of  imprisonment  for  life  ipso  iure  annuls  the  mar- 
riage of  the  prisoner,  permitting  the  other  partner  to  re- 
marry, and,  in  most,  conviction  for  felony  or  infamous 
crime  is  a  ground  on  which  the  Court  may  decree,  and  pre- 
sumably will  decree,  the  extinction  of  the  marriage.  More- 
over, there  are  still  a  few  States  where  over  and  above  the 
judicial  process  open  to  a  discontented  consort,  the  State 
legislature  continues  to  grant  divorces  by  special  statutes. 
Delaware  is,  or  very  recently  was,  such  a  State;  and  in 
the  twenty  years  preceding  1887  it  would  seem  that  four- 
fifths  of  its  divorces,  not  indeed  very  numerous  (289  for 
twenty  years),  were  so  obtained.  The  laws  of  most  States 
also  provide  for  what  the  Americans  call  a  '  limited  divorce,' 
and  the  English  a  '  judicial  separation,'  equivalent  to  the 
old  divorce  a  mensa  et  thoro.  'It  leaves  the  marriage  still 
valid,  but  relieves  the  parties  fmm  any  obligation  to  live 
together;  and  in  some  States  the  Court  in  pronouncing  a 
decree  of  divorce  may  change  the  name  of  the  wife  (in  Texas 
and  Arizona  the  name  of  either  party),  while  in  Vermont 
it  may  also  change  the  names  of  the  children  who  are  minors. 
Not  less  remarkable  than  the  multiplication  of  grounds 
for  divorce  in  the  American  States  is  the  ey^eme  laxity  of 
procedure  which  has  grown  up.  The  Courts^ having  Jjris 
diction  are  usually  the  Courts  of  the  county  tribunals  of  no 
great  weight,  whose  ill-paid  judges  are  sei»  ™\en  of  pro- 
fessional eminence.  The  terms  of  residence  a  State 
which  are  required  before  a  petitioner  can  ap  •  .."  di- 
vorce are  generally  very  short.  The  provisions  for  :>or 
notice  on  the  respondent  or  defendant  to  the  div?  ;ce  suit 
are  loose  and  seem  to  be  carelessly  enforced.  Som-  Rl 
allow  service  to  be  effected  by  publication  in  the  newspapers,' 
if  the  other  party  be  not  found  within  the  State,  and  this 
of  course  often  happens  when  the  applicant  has  recently 


76.     BRYCE:  MARRIAGE  AND  DIVORCE    829 

come  to  the  State,  most  likely  a  distant  one,  from  that  in 
which  he  or  she  lived  with  the  other  consort.  Frequently 
he  comes  for  the  express  purpose  of  getting  his  marriage 
dissolved.  Although  most  States  declare  collusion  or  con- 
nivance by  the  other  party  to  be  a  bar  to  the  granting  of 
a  divorce,  and  some  few  States  provide  that  a  public  official 
shall  appear  to  defend  in  undefended  petitions,  the  pro- 
visions made  for  detecting  these  devices  are  inadequate ;  and 
in  not  a  few  cases  the  proceedings  do  little  more  than  set  a 
judicial  seal  upon  that  voluntary  dissolution  by  the  agree- 
ment of  the  two  consorts,  which  was  so  common  at  Rome. 
It  is  doubtless  a  point  of  difference  between  the  Roman  law 
and  that  of  modern  American  States  that  in  the  former  the 
parties  could  by  their  own  will  and  act  terminate  the  mar- 
riage :  in  the  latter  the  Courts  must  be  invoked  to  do  so. 
But  where  the  Courts  out  of  good-nature  or  carelessness 
made  a  practice  of  complying  with  the  application  of  one 
party,  unresisted  or  feebly  resisted  by  the  other,  this  differ- 
ence almost  disappears.  The  facilities  which  some  of  the 
more  lax  States  hold  out  to  those  who  come  to  live  in  them 
for  the  requisite  period,  and  who  then  procure  from  the 
complaisant  Court  a  divorce  without  the  knowledge  of  the 
other  consort,  constitute  a  grave  blot  on  the  administration 
of  justice  in  the  Union  generally,  for  a  marriage  dissolved 
in  one  State  (where  jurisdiction  over  the  parties  has  been 
duly  created)  is  prima  facie  dissolved  everywhere ; 1  and  al- 
though the  decree  might  conceivably  be  reversed  if  evidence 
could  be  giver  that  it  had  been  improperly  obtained,  it  is 
usua,  ly  so  dif  _ult  to  obtain  that  evidence  that  the  injured 
party,  esper  Ally  an  injured  wife,  must  perforce  submit. 


XX^V.  General  Reflections:    Changes  in  Theory  and 

in  Sentiment  regarding  Marriage 

A  fe  '  words  more  to  sum  up  the  general  result  of  our 
survey.  We  have  seen  that  the  relations  of  the  wife  to  the 

aln  two  or  three  States  the  law  provides  that  when  an  inhabitant 
goes  into  some  other  State  for  the  purpose  of  getting  a  divorce  for  a 
cause  arising  within  the  State,  or  fo*  a  cause  which  the  law  of  the 


830         IX.     WILLS,  DESCENT,  MARRIAGE 

husband  have  been  regulated  sometimes  by  one,  sometimes  by 
the  other  of  two  systems,  which  have  been  called  those  of 
Subordination  and  Equality.1  In  all  countries  custom  and 
law  begin  with  the  system  of  Subordination.  In  some,  the 
wife  is  little  better  than  a  slave.  Even  at  Rome,  though  she 
was  not  only  free  but  respected,  her  legal  capacity  was 
merged  in  her  husband's. 

This  system  vanishes  from  Rome  during  the  last  two  cen- 
turies of  the  Republic,  and  when  the  law  of  Rome  comes  tb 
prevail  over  the  whole  civilized  world,  the  system  of  Equality 
(except  so  far  as  varied  by  local  custom)  prevails  over  that 
world  till  the  Empire  itself  perishes. 

In  the  Dark  Ages  the  principle  of  the  subordination  of 
the  wife  is  again  the  rule  everywhere,  though  the  forms  it 
takes  vary,  and  it  is  more  complete  in  some  countries  than 
in  others.  It  was  the  rule  among  the  Celtic  and  Teutonic 
peoples  before  they  were  Christianized.  It  finds  its  way, 
through  customs  conformable  to  the  rudeness  of  the  times, 
into  the  law  of  those  countries  which,  like  Italy,  Spain,  and 
France,  were  only  partially  Teutonized,  and  retained  forms 
of  Latin  speech.  It  holds  its  ground  in  England  till  our 
own  time,  though  latterly  much  modified  by  the  process 
which  we  call  the  emancipation  of  women,  a  process  which, 
under  the  influence  of  democratic  ideas,  has  moved  most 
swiftly  and  has  gone  furthest  among  the  English  race  in 
North  America.  But  in  our  own  time  the  principle  of  equal- 
ity has,  in  most  civilized  countries,  triumphed  all  along  the 
line,  and  so  far  as  we  can  foresee,  has  definitely  triumphed. 
One  must  imagine  a  complete  revolution  in  ideas  and  in  social 
habits  in  order  to  imagine  a  return  to  the  system  of  Subordi- 
nation as  it  stood  two  centuries  ago. 

As  there  have  been  two  systems  determining  the  relations 

State  would  not  authorize,  a  divorce  granted  to  him  shall  have  no  effect 
within  the  State. 

xBy  Equality  I  do  not  mean  any  recognition  of  Identity  or  even 
Similarity  as  respects  capacity  and  practical  work  (though  the  ten- 
dency is  in  that  direction),  but  the  equal  possession  of  private  civil 
rights  and  the  admission  of  an  individuality  entitled  to  equal  respect 
and  an  equally  free  play  of  action.  Such  Equality  is  perfectly  com- 
patible, given  sufficient  affection,  with  a  complete  identification  of  the 
consorts  in  the  harmony  which  comes  of  the  union  of  diverse  but  com- 
plementary elements. 


76.     BRYCE:  MARRIAGE  AND  DIVORCE    831 

of  husband  and  wife  in  respect  of  property  and  of  personal 
control,  so  also  have  there  been  throughout  all  history  two 
aspects  of  the  institution  of  marriage,  one  in  which  the  sen- 
sual and  material  element  has  predominated,  the  other  in 
which  the  spiritual  and  religious  element  has  come  in  to  give 
a  higher  and  refining  character  to  the  relation.  In  this  case, 
however,  it  is  not  possible  to  make  the  relative  importance 
of  these  two  aspects  synchronize  with  the  general  progress 
of  civilization,  nor  even  with  the  elevation  of  the  position  of 
women.  It  is  true  that  among  barbarous  and  some  semi- 
civilized  races  the  physical  side  of  the  institution  is  almost 
solely  regarded,  and  that  we  may  suppose  a  remote  age 
when  primitive  man  was  in  this  respect  not  much  above  the 
level  of  other  animals.  But  there  have  been  epochs  when 
civilization  was  advancing  while  the  moral  conception  of 
marriage,  or  at  any  rate  the  popular  view  of  marriage  as 
a  social  relation,  was  declining.  The  tie  between  husband 
and  wife  in  the  earlier  days  of  Rome  was  not  only  closer 
but  more  worthy  and  wholesome  in  its  influence  on  the  lives 
of  both  than  it  had  become  in  the  age  of  Augustus.  Chris- 
tianity not  only  restored  to  the  tie  its  religious  colour,  but 
in  dignifying  the  individual  soul  by  proclaiming  its  immor- 
tality and  its  possibility  of  union  with  God  through  Christ 
gave  a  new  and  higher  significance  to  life  as  a  whole,  and  to 
the  duties  which  spring  from  marriage.  The  greatest  ad- 
vance which  the  Christian  world  made  upon  the  pagan  world 
was  in  the  view  of  personal  purity  for  both  sexes  which  the 
New  Testament  inculcated,  a  view  absent  from  the  Greek 
and  Italian  religions  and  from  Greek  and  Latin  literature, 
though  there  had  been  germs  of  it  in  the  East,  where  habits 
of  sensual  indulgence  more  degrading  than  those  of  the  West 
were  opposed  by  theories  of  asceticism,  which  passed  into 
and  tinged  primitive  and  mediaeval  Christianity. 

The  more  ennobling  view  of  love  and  of  the  marriage  re- 
lation held  its  ground  through  the  Middle  Ages.  There  was 
plenty  of  profligacy  —  as  indeed  the  ideal  and  the  actual 
have  never  been  more  disjoined  than  in  the  Middle  Ages. 
But  in  spite  of  profligacy  on  the  one  hand,  and  the  glori- 
fication of  celibacy  on  the  other,  and  notwithstanding  the 


832         IX.     WILLS,  DESCENT,  MARRIAGE 

subjection  of  women  in  the  matter  of  property  and  even  of 
personal  freedom,  the  conception  of  wedded  life  as  recognized 
by  the  law  of  the  Church  and  enshrined  in  poetry  remained 
pure  and  lofty.  That  the  Reformation  took  away  part  of 
the  religious  halo  which  had  surrounded  matrimony  may  be 
admitted.  Whether  this  involved  a  practical  loss  is  a  diffi- 
cult question.  It  may  be  that,  in  their  anxiety  to  be  rid 
of  what  they  deemed  superstition,  and  in  their  disgust  at  the 
tricky  and  mercenary  way  in  which  ecclesiastical  lawyers  had 
played  fast  and  loose  with  the  intricate  rules  of  canonical 
impediment,  the  Reformers  of  Germany,  Scandinavia,  and 
Scotland  forgot  to  dwell  sufficiently  on  the  fact  that  though 
marriage  is  a  civil  relation  in  point  of  form  and  legal  effect, 
it  ought  to  be,  to  Christians,  essentially  also  a  religious 
relation,  the  true  consecration  of  which  lies  not  in  the  cere- 
monial blessing  of  the  Church,  but  in  the  solemnity  of  the 
responsibilities  it  involves.  Yet  it  is  not  clear  that,  in  point 
of  domestic  happiness  or  domestic  purity,  the  nations  which 
have  clung  to  the  mediaeval  doctrine  stood  a  century  ago, 
or  stand  now,  above  those  which  had  renounced  it.  General 
theories  regarding  the  influence  of  particular  forms  of  re- 
ligion, like  theories  regarding  the  influence  of  race,  are  apt 
to  be  misleading,  because  many  other  conditions  have  to  be 
regarded  as  well  as  those  on  which  the  theorist  is  inclined  to 
dwell. 

Whoever  regards  the  doctrines  of  the  Roman  Catholic 
Church  respecting  marriage  and  realizes  her  power  over 
her  members  will  expect  to  find  a  higher  level  of  sexual 
morality  in  Roman  Catholic  countries  than  he  will  in  fact 
find.  So  on  the  other  hand  will  he  be  disappointed  who  ac- 
cepts that  view  of  the  superiority  in  social  virtues  of  peoples 
of  Teutonic  stock  which  finds  so  much  favour  among  those 
peoples,  for  dissolutions  of  the  marriage  tie  have  latterly 
grown  more  frequent  than  they  formerly  were  among  Prot- 
estant and  Teutonic  nations,  and  are  apparently  less  con- 
demned by  public  opinion  than  was  the  case  in  older  days. 

The  material  progress  of  the  world,  the  mastery  of  man 
over  nature  through  a  knowledge  of  her  laws,  the  diffusion 
of  knowledge  and  of  the  opportunities  for  acquiring  it,  are 


76.     BRYCE:  MARRIAGE  AND  DIVORCE    833 

themes  which  ceaselessly  employ  the  tongues  of  speakers  and 
the  pens  of  journalists,  while  they  swell  with  pride  the  heart 
of  the  ordinary  citizen.  But  they  are  not  the  things  upon 
which  the  moral  advancement  of  mankind  or  the  happiness 
of  individuals  chiefly  turns.  They  co-exist,  as  the  statistics 
of  recent  years  show,  with  an  increase,  over  all  or  nearly  all 
civilized  countries,  of  lunacy,  of  suicide,  and  of  divorce. 


INDEX   TO   VOLUMES    I -III1 


Abridgements  of  Year-books,  II.  112 

Accident,  I.  223 

Account,  action  of,  III.  295,  811;    and  third  person  beneficiary, 

III.  343-351 

Accursius,  Francis,  I.  649 
Administration  of  states,  ecclesiastical  jurisdiction  over,  II.  303- 

310;  equity  jurisdiction  over,  II.  308-310 
Admiral,  first  mention  of,  I.  304 
Admiralty,  court  of,  I.  304-326,  534;  jurisdiction  of,  I.  308-326; 

jurisdiction,  in  English  Colonies,  I.  454;  Courts,  Reports 

of,  III.  154;  jurisdiction,  history  of,  II.  312-364 
Adoption  of  common  law,  I.  425 
Advowson,  III.  607-608 
Aethelbert  of  Kent,  I.  18;  laws  of,  II.  9 
Aethelred,  laws  of,  II.  11 
Aethelstan,  laws  of,  II.  11 
Agency,  history  of,  III.  368-4M;  and  the  law  of  partnership, 

III.  187  and  tortious  responsibility,  III.  520-537 
Agistor's  lien,  III.  290 
Agricultural  holdings  acts,  III.  701-702 
Alaric,  law  of,  I.  15,  22 
Alfred,  code  of,  II.  10 
Alien  merchants,  III.  18,  78 
Aliens  and  mixed  jury,  I.  303 
Amendment  of  pleas,  II.  628 
American  Colonies,  English  law  in,  I.  367-463;  sources  of  law 

of,  II.  164-168;  courts  of  chancery  in,  II.  779-809 
Anglo-Norman  law,  II.  20-40 
Anglo-Saxon  law,  I.  88-107;  sources  of,  II.  1-20;  material  for 

history  of,  II.   62-68;  of  slander,  III.   449;   testamentary 

dispositions  in,  III.  751 
Animals,  harm  done  by,  III.  489-495;  liability  for,  III.  512-516 

1  Prepared  by  Professor  ERNST  FREUND,  of  the  Editorial  Committee. 


836  INDEX 


Appeal,  from  Colonies  to  England,  I.  439;  of  felony,  II.  405- 

427,  479;  of  robbery,  III.  418-422 
Appellate  jurisdiction,  I.  522-523 
Archdeacon,  court  of,  II.  275 
Archdeaconries,  I.  256 
Arches,  court  of,  I.  274;  II.  277 
Arms,  assize  of,  II.  445 
Arrest,  law  of,  II.  452 
Articuli  Cleri,  I.  272;  II.  262 
Arundel,  Earl  of,  I.  640 

Assizes,  of  Henry  II.,  II.  25,  72;  Book  of,  II.  109,  215 
Assumpsit,  history  of,  III.  259-303,  325-328 
Assumption  of  risk,  doctrine  of,  I.  779 
Attachment,  process  of,  in  admiralty,  II.  350 
Attorney  and  law  of  agency,  III.  395-397 
Attornment,  III.  603 
Attwood,  Chief  Justice,  I.  384,  393 
Audience,  court  of,  II.  277 
Azo,  I.  644 

Bacon,  Lord,  I.  696-698;  plans  for  revising  statute  law,  II.  169- 

170 

Bail,  II.  472-479 

Bailment,  analogy  to  uses,  II.  743 
Bankruptcy,  I.   543-548 
Banks,  early  in  America,  III.  247 
Barbarorum  Leges,  I.  19-20,  34-40,  64;  and  slander,  III.  448; 

and  tort  responsibility,  III.  484-485 
Barcelona,  ordinances  of,  III.  53,  106 
Bargain  and  Sale,  II.  744 
Barnardiston,  Reporter,  II.  126 
Battle,  trial  by,  I.  94,  116;  II.  396-402,  480 
Bearer  clauses  in  negotiable  instruments,  III.  62-65 
Becket,  I.  636 

Bedford  Levels,  registration  system  for,  I.  487 
Beneficiaries,  action  in  assumpsit,  III.  339-367 
Beneficium  inventorii,  I.  220 
Benefit  of  clergy,  II.  289 
Bentham,  Jeremy,  I.  353,  492-515,  716,  720-722;  II.  645-649; 

and  law  of  evidence,  II.  697 
Bereford,  William,  I.  653 
"  Best  evidence  "  rule,  II.  695 
Betrothal,  in  Roman  law,  III.  792-793 
Bill,  proceeding  by,  in  chancery,  II.  237 
Bills  of  Exchange,  in  common  law  courts,  1.  304,  III.  17,  51; 

and  the  law  merchant,  I.  329-330 
Black  book  of  the  admiralty,  I.  232,  306;  II.  326 


INDEX  837 


Blackburn,  Judge,  I.  771-775 

Blackstone,   Commentaries,   I.    204,   715;    II.    49;    and   law   of 

evidence,  II.  695 

Body  of  Liberties,  Massachusetts,  I.  373 
Bologna,  Law  School  of,  I.  590 
Bookland,  I.  106 

Boroughs,  III.  162;  law  of  intestacy  in,  III.  729-736 
Bottomry,  I.  243;  bonds,  III.  103 
Bowen,  Lord,  I.  817-824 
Bracton,  I.  165,  643;  II.  35;  Treatise  on  Laws  of  England.  II. 

83 

Bramwell,  Judge,  I.  778-785 
Breviarium  Alarici,  I.  15,  346;  II.  156 
Bridgeman,  Orlando,  I.  700 
Bristol,  Red  book  of,  I.  292 ;  staple  of,  III.  26 
Britton,  I.  659;  II.  37;  Law  Treatise,  II.  84 
Brougham,  Lord,  I.  723 
Bulstrode,  Reporter,  II.  125 
Burchard  of  Worms,  I.  254 

Burgundionum  Lex  Romana,  I.  15,  346;  II.  156 
Burnel,  Robert,  Chancellor,  I.  649 
Burrow's  Reports,  II.  143-145 
Business  companies,  in  Colonies,  III.  243-248 
Business  corporations,  history  of,  III.  195-235;  in  U.  S.  III.  234 
By-laws  of  corporations,  III.  213-215 
Byron,  Sir  John,  I.  663 

Caesar,  Sir  Julius,  I.  202 

Cairns,  Lord,  I.  789-796 

Calais,  staple  of,  III.  25 

Camden,  Lord  Chancellor,  I.  715 

Campbell,  Lord,  I.  725,  739,  743 

Canon  Law,  I.  46-47,  175,  248-288;  degrees  at  universities,  I. 

275;  II.  257;  in  England,  II.  74-76,  269 
Capias  excommunicatum,  I.  271 
Capital  punishment,  I.  550-551 
Capitula  Itineris  of  Richard  I.,  II.  25 
Capitularies,  I.  23,  40-42 

Caracalla,  unification  of  law  through  grant  of  citizenship,  I.  586 
Carolina,  North  and  South,  early  law  in,  I.  407-410 
Carrier,  liability  of,  III.  148-160 
Carta  Mercatoria,  I.  301 
Cases  Cited 

Acton  v.  Blundell,  I.  213 

Ashford  v.  Thornton,  II.  401,  484 

Blankard  v.  Galdy,  I.  41 9 

Bligh  v.  Brent,  III.  218 


838  INDEX 


Brocke  v.  Maynard,  III.  110 

Bromwich  v.  Lloyd,  III.  78 

Calvin's  case,  I.  417 

Cavalchant  v.  Maynard,  III.  110 

Cawdry's  case,  I.  281 

Chandelor  v.  Lopus,  III.  268 

Chat  v.  Edgar,  III.  83 

Clarke  v.  Martin,  III.  89 

Clark  v.  Tousey,  I.  462 

Coggs  v.  Bernard,  III.  158,  264,  333 

Crane  v.  Bell,  III.  112 

Dalton  v.  Angus,  III.  695 

Dartmouth  College  case,  III.  253 

Dunlop  v.  Silver,  III.  72 

Dutch  West  India  Co.  v.  Van  Moses,  III.  206 

Eaglechild's  case,  III.  73 

East  India  Company  v.  Sandys,  I.  330 

Edgar  v.  Chut,  III.  83 

Edie  v.  East  India  Co.,  III.  74 

Emerson  v.  Sallanova,  III.  110 

Five  Knights'  case,  II.  544 

Forward  v.  Pittard,  III.  159 

Grant  v.  Vaughan,  III.  83 

Hals  v.  Hyncley,  II.  724 

Hawkins  v.  Cardy,  III.  86 

Home  v.  Ivy,  III.  205 

King  v.  Lake,  III.  471 

Liardet  v.  Johnson,  III.  144 

Lickbarrow  v.  Mason,  III.  47 

Lowe  v.  Paramour,  II.  400 

Luke  v.  Lyde,  III.  14,  46 

McCulloch  v.  Houston,  III.  95 

Morse  v.  Slue,  III.  156 

Phillips  v.  Savage,  I.  462 

Pillans  v.  Van  Mirop,  III.  74 

Pinnell's  case,  II.  132 

Queen  v.  Jackson,  III.  820 

Queen  v.  Millis,  III.  815 

Quo  Warranto  Case  v.  London,  I.  705 

Rex  v.  Bigg,  III.  212 

Russell  v.  Men  of  Devon,  III.  167 

Salmon  v.  Hamburg  Co.,  III.  230 

Sheldon  v.  Hentley,  III.  84 

Ship  Money  case,  I.  699 

Six  Members'  Case,  II.  546 

Southcote's  Case,  III.  152 

Sutton's  hospital,  case  of.  III. 


INDEX  839 


Thorley  v.  Lord  Kerry,  III.  472 
Tyrrel's  case,  II.  747-748 
Williams  v.  Lloyd,  III.  154 
Williams  v.  Williams,  III.  84 
Winthrop  v.  Lechmere,  I.  445 
Winton  v.  Wilks,  III.  179 
Woodward  v.  Rowe,  III.  74 

Causa  and  consideration,  III.  279 

Cavendish,  Chief  Justice,  I.  668 

Censorship  of  press,  III.  462 

Certiorari,  writ  of,  II.  538 

Chancellor  and  the  English  law,  I.  349;  jurisdiction  regarding 
foreigners,  I.  296 

Chancery,  court  of,  I.  214;  reforms  during  Commonwealth,  I. 
471 ;  court  of,  I.  523-531 ;  early  records,  II.  93;  reports,  II. 
149-153;  history  of  court  of,  II.  219-54;  ordinary  juris- 
diction, II.  234-236;  jurisdiction  of,  recognized  by  statute, 
II.  244;  courts  of,  in  American  Colonies,  II.  779-809;  and 
law  merchant,  III.  50 

Charles  L,  trial  of,  II.  518-519 

Charter,  as  form  of  legislation,  I.  53;  of  the  Forest,  II.  26; 
and  corporateness,  III.  171-172 

Chartered  companies,  III.   194,  199-201 

Chelmsford,  Lord,  I.  738 

Chief  Justiciar,  office  of,  II.  211 

Choke,  Judge,  I.  674 

Choses  in  action,  transfer  of,  III.  609-610 

Christianity,  influence  of,  upon  Roman  law  of  divorce,  III.  801- 
804 

Church,  law  of,  and  defamation,  III.  450-53 
See  also  CANON  LAW 

Cinque  Ports,  I.  295 

Citations,  law  of,  I.  344 

Civil  law,  study  of,  I.  285 

Civil  procedure,  code  of,  II.  664 

Clarendon,  Assize  of,  I.  128;  constitutions  of,  I.  259,  II.  288; 
assize  of,  II.  444-445 

Clementines,  I.  264 

Cnute,  code  of,  I.  28;  II.  12;  laws  of,  II.  17 

Cockburn,  Judge,  I.  766-771 

Code,  civil  and  ecclesiastical,  I.  190;  early,  for  Virginia,  I.  404; 
meaning  of,  II.  643-647;  pleading,  development  of,  II.  643- 
690;  states,  II.  646-647,  672;  civil,  in  America,  II.  670-671 

Codification,  I.  58;  in  Germany,  I.  36l,  592;  in  American  Colo- 
nies, I.  410;  demand  for,  during  Commonwealth,  I.  481, 
511-515,  564-568;  in  France,  I.  592;  for  India,  I.  603- 
604 


840  INDEX 


Coemptio,  marriage  by,  III.  787 

Coke,  Sir  Edward,  and  admiralty,  I.  314,  696-699;  II.  47; 
Reports,  II.  130-134 

Coleridge,  Lord  Chief  Justice,  I.  744,  807 

Collatio  bonorum  and  Hotchpot,  I.  212 

Collatio  Hibernica,  I.  253 

Colonies,  American,  English  law  in,  I.  367-463;  appellate  juris- 
diction over,  I.  383;  appeals  from,  to  England,  I.  383-387; 
American,  and  laws  of  England,  I.  435;  and  corporate 
autonomy,  I.  452;  theory  of  extension  of  English  law  to, 
I.  450;  laws  of,  contrary  to  laws  of  England,  I.  457; 
American,  sources  of  law  of,  II.  164-168;  American,  courts 
of  chancery  in,  II.  779-809;  law  of  corporations  in,  III. 
236-255. 

Color  in  Pleading,  II.  630 

Commenda,  III.  183 

Commercial  courts,  I.  298-304 
See  also  MERCHANT,  LAW 

Common  carrier,  liability  of,  III.  148-160 

Common  law,  I.  50;  relation  of  early  Mass,  law  to,  I.  379-380; 
and  equity,  I.  517-518;  in  Anglo  Saxon  period,  II.  67;  pro- 
cedure acts,  II.  675-678 

Common  pleas,  court  of,  I.  519;  II.  210;  reports,  II.  146-7 

Common  recovery,  I.  147;  III.  677 

Commons,  House  of,  opposition  to  jurisdiction  of  chancellor,  II. 
241-244;  rights  of,  III.  697 

Communitas,  III.  163 

Complaint  and  proof,  in  early  procedure,  II.  370-375 

Comyns,  II.  49 

Concubinage,  III.  806-808 

Confarreatio,  marriage  by,  III.  787 

Confessions,  II.  497-498 

Conflict  of  laws,  I.  22 

Confrontation  with  witnesses,  II.  499 

Connecticut,  early  laws  of,  I.  386,  431-463;  chancery  jurisdic- 
tion in,  II.  790-792 

Connubium,  III.  806 

Conquest,  extension  of  law  through,  I.  419-424 

Conscience,  in  chancery,  II.  722-736 

Conservators  of  the  Peace,  I.  154 

Consideration,  II.  746;  III.  278;  executed,  III.  288;  doctrine 
of,  III.  327-330;  doctrine  of  and  third  beneficiary,  III.  343 

Consimili  casu,  writs  in,  II.  723 

Consistory  Court,  II.  275 

Consolato  del  Mare,  I.  290;  II.  339-342;  III.  106 

Constantine,  reign  of,  I.  335 

Contingent  remainders,  recent  history  of,  III.  684-685 


INDEX  841 


Contract,  in  Anglo  Saxon  law,  I.  104;  in  early  English  equity, 

II.  716-721;  history  of,  III.  320-338;  agency  in,  III.  390- 
398          See  also  ASSUMPSIT 

Contractor,  and  the  law  of  agency,  III.  405 

Contracts,  use  of  term,  III.  306 

Conveyancing,  beginning  of  modern,  I.  23;  law  of,  III.  703-719 

Convocation,  I.  274;  II.  279 

Coparceners,  I.  142 

Copyhold,  law  of,  III.  696-697 

Coroner,  office  of,  II.  410;  inquest,  II.  457 

Corporate  by-laws  and  colonial  self-government,  I.  452 

Corporations,  history  of  law  of,  III.  161-182;  and  combinations, 

I.  570 

Corpus  Juris  Canonici,  I.  46-47;  II.  257 
Corpus  Juris  Civilis,  I.  160 
Cottenham,  Lord,  I.  736-737 
Council,  jurisdiction  concerning  foreigners,  I.  296;  in  American 

Colonies,  jurisdiction  of,   I.   393-399;   jurisdiction  of,   II. 

225-230 

Counsel  in  criminal  cases,  II.  504,  527 
County  Court,  I.  91,  542 
County,  crimes  committed  out  of,  I.  297 
Court,  of  High  Commission,  I.  279;  of  Appeal  in  Chancery,  I. 

800-803 ;  of  Appeal,  I.  809-824 
Coutumiers,  I.  57 
Covenant,  action  of,  III.  324 
Craft  guilds,  I.  326 
Cransworth,  Lord,  I.  738 
Crime,  in  Anglo  Saxon  law,  I.  99-101 ;  early  Mass,  law,  I.  375- 

376 
Criminal  jurisdiction,  of  admiralty,  I.  310-313;  of  ecclesiastical 

courts,  II.  288-291;  in  admiralty,  II.  316,  354 
Criminal  law,  Reforms  of,  during  Commonwealth,  I.  483 ;  reform 

since  1826,  I.  548-556 

Criminal  procedure,  history  of,  II.  443-530 
Croke's  Reports,  II.  135 
Cromwell,  Protector,  I.  700 
Cross-examination,  II.  443,  694 
Crown,  cases  reserved,  court  of,  I.  549 
Curia  Regis,  I.  123;  II.  209 
Custom,  local,  in  King's  court,  II.  116;  of  merchants,  proof  of, 

III.  11;  proof  of,  III.  13 
Customary  duty,  assumpsit  for,  III.  293 

Damages,  and  law  of  agency,  III.  412-414 
Death,  devolution  of  property  on,  III.  770-781 
Debentures,  to  bearer,  III.  17 


812  INDEX 


Debt,  action  of  and  third  beneficiary,  III.  351-60 

Decedents,  estates,  claims,  and  liabilities,  III.  756-763 

Decemviral  legislation,  I.  334 

Declaratory  legislation,  I.  63 

Decree  and  judgment,  II.  731 

Decretum  Gratiani,  I.  47,  258;  II.  257 

Defamation,  ecclesiastical  jurisdiction  over,  abrogated,  II.  297; 
history  of,  III.  446-473 

Delaware,  chancery  jurisdiction  in,  II.  801-802 

Delegates,  high  court  of,  I.  742;  II.  279;  to  hear  appeals  from 
admiralty,  I.  308;  high  court  of,  II.  279 

Denman,  Lord,  I.  532,  743 

Deodand,  I.  133;  III.  515 

Dependencies,  binding  force  of  law  in,  I.  381;  theory  of  exten- 
sion of  law  to,  I.  417-430 

Descent,  common  law  of,  in  American  Colonies,  I.  431-463;  III. 
690 

Determinable  fee,  I.  674 

Detinue,  III.  312;  as  remedy  on  bailment,  III.  432-437 

Dialogue  of  the  Exchequer,  II.  33,  74 

Digest  of  Justinian,  I.  31 

Dilatory  pleas,  II.  760 

Diocletian,  reign  of,  I.  335 

Dionysius  Exiguus,  I.  16,  252 

Diplomatic  Age,  I.  27 

Dissolution  of  corporations,  III.  231-34 

Distribution,  statute  of,  I.  230 

Divorce  and  matrimonial  causes,  court  for,  I.  536-537 

Divorce,  in  ecclesiastical  courts,  II.  299-300;  Roman  law  of,  III. 
798-801;  canon  law  of,  III.  822-23;  history  of  law  of,  in 
England  and  United  States,  II.  823-829 

Doctor  and  Student,  II.  46 

Doctors'  Commons,  I.  534-535 

Documents,  Anglo  Saxon,  II.  64-65 

Dogs,  liability  for,  III.  515 

Dooms,  I.  19,  96-98;  Anglo  Saxon,  I.  42;  II.  64 

Domesday  Book,  II.  23,  76-77 

Dos,  III.  794-795 

Dower,  III.  690,  817 

Droits,  admiralty,  I.  321 

Duel,  as  substitute  for  action  for  defamation,  III.  460 

Duke  of  York's  laws,  I.  391 

Dunsaete,  law  of,  II.  13 

Dyer,  Judge,  I.  692;  Reports,  II.  134 

Easements,  under  land  title  registration,  III.  713 
Eastern  and  Western  Empire,  separation  of,  I.  18 


INDEX  843 


Ecclesiastical  Courts,  I.  534-535;  reports  of,  II.  154,  255-311; 
statutes  of  19th  century  regulating  jurisdiction  of,  II.  284- 
287;  criminal  jurisdiction,  II.  288-291;  corrective  juris- 
diction, II.  291-297;  and  feoffee  to  uses,  II.  740;  pleading 
in,  II.  767 

Ecclesiastical  jurisdiction,  I.  154-155,  271;  and  law  of  mar- 
riage, III.  812-815 

Ecclesiastical  law,  I.  24-26,  127,  225,  248-288 

Edictum  Theodorici,  I.  16 

Edward  the  Confessor,  laws  of,  II.  17 

Edward  I.,  legislation  of,  I.  55;  and  the  common  law,  I.  349; 
statutes  of,  II.  27;  establishment  of  courts,  II.  209-218 

Edward  III.,  and  the  common  law,  I.  349 

Edward  VI.,  legislation  concerning  canon  law,  I.  277 

Ejectionae  firmae,  III.  617-622 

Ejectment,  action  of,  I.  520;  history  of,  III.  611-645 

Eldon,  Lord,  I.  494,  499,  724,  732-736 

Election  petitions,  I.  537-538 

Elizabeth,  Queen,  legislation  concerning  canon  law,  I.  279 

Ellenborough,  Lord,  I.  741 

Ellsmere,  Lord  Chancellor,  I.  698 

Enclosure  act,  1845,  III.  698 

English  language  in  legal  proceedings,  I.  480 

Enquete  par  tourbe,  I.  43 

Entry,  writs  of,  III.  638-639 

Equity,  natural,  as  rule  of  decision,  I.  418,  437,  451,  600;  II. 
221-240;  in  common  law,  I.  517-518;  early  English,  II. 
705-721;  ethical  standard  of,  II.  738;  and  parol  promises, 
III.  308;  fusion  of  law  and,  III.  702 

Equity  jurisdiction,  in  New  York,  I.  394 

Equity  pleading,  II.  742-778 

Erie,  Judge,  I.  744 

Esher,  Lord,  I.  814-815 

Essoins,  II.  616 

Evidence,  in  early  Massachusetts,  I.  378;  exclusion  on  account 
of  interest,  I.  521;  history  of,  II.  443,  691-701;  in  law 
merchant,  III.  39 

Examination,  of  parties,  II.  754-761 ;  of  witnesses,  II.  761 

Exchequer  Chamber,  I.  742,  754-756 

Exchequer,  Court  of,  I.  519;  II.  212-215;  dialogue  of  the,  II. 
33,  74;  rolls,  II.  32;  reports,  II.  147-148 

Excommunication  as  process  of  ecclesiastical  courts,  II.  310-311 

Executor,  history  of  law  of,  III.  737-769;  limitation  of,  to  chat- 
tels, III.  752-756;  representation  by,  III.  756-763;  right 
to  residue,  III.  764-768 

Ex  officio  procedure,  II.  500-507 

Expansion  of  law,  I.  355-357;  theory  of,  I.  417-430,  574-621 


844  INDEX 


Extension  of  law,  I.  574-621 
Extradition  statutes,  I.  550 
Extravagants,  I.  262 
Eyre,  justices  in,  II.  216,  414,  446 

Factor,  assumpsit  against,  III.  291 ;  and  the  law  of  agency,  III. 

394,  397-398 
Fairfax,  Sergeant,  I.  675 
Fairs,  courts  of,  I.  298-299;  III.  9 
Fees,  payment  of  magistrates  by,  II.  470 
Feoffee  to  uses,  liability  of,  III.  435-436 
Formedon,  writ  of,  III.  639 
Feudal  tenures,  abrogation  of,  I*  351 
Fideicommissa,  I.  218 
Fidei  laesio,  II.  714 
Fides  in  equity,  II.  720 
Finch,  Sir  Thomas,  I.  674 
Fines,  I.  131 

Fineux,  Chief  Justice,  I.  687 
Fire,  liability  for,  III.  511 
Fitzherbert,  II.  44;  Abridgment,  II.  47,  98 
Fitzpeter,  Geoffrey,  I.  639 
Five  Knights'  case,  II.   544 
Fixtures,  law  of,  III.  702 
Flambard,  Ranulf,  I.  629 
Fleta,  II.  37;  law  treatise,  II.  84 
Folkland,  I.  105 

Foreign  merchants  and  charter  privileges,  I.  301 
Foreign  trade  and  law  merchant,  I.  327 
Forest  law,  Cnute's,  I.  113;  II.  18 
Forfeiture  gage,  III.  652-656 
Fortescue,  John,  I.  678-680;  II.  45 
Frank  pledge,  view  of,  I.  129;  II.  448;  III.  379 
France,  history  of  law  in,  I.  360-362 ;  codification  in,  I.  592 
Franchises,  corporate,  III.  252;  transfer  of,  III.  608 
Frankish  law,  I.  40-42 
Fraud  and  the  law  of  agency,  III.  408 
Freedom  of  trade,  I.  330 
French  Revolution,  and  the  law,  I.  358;  and  the  English  law, 

I.  498 

Fundamental  law,  conception  of,  I.  377,  397 
Fundamental  constitutions  of  the  Carolinas,  I.  407 
Fusion  of  law  and  equity,  II.  678 

Gage,  of  land,  III.  646-672 
Gascoigne,  Chief  Justice,  I.  671 


INDEX  845 


Gavelet,  custom  of,  III.  661 

General  average,  I.  241 

Gentilis,  Albericus,  I.  182 

Georgia,  chancery  jurisdiction  in,  II.  808-809 

Germanic  laws,  oldest  written,  I.  19 

Germany,  history  of  law  in,   I.   360-362;  reception  of  Roman, 

law  in,  I.  591;  codification  in,  I.  592 
Gild  merchant,  I.  300;  III.  176-179 
Glanville,  I.  636;  treatise,  II.  34,  73 
Godolphin,  treatise  on  admiralty,  III.  41 
Goldsmiths  as  bankers,  III.  82 
Grand  jury,  origin  of,  II.  488 
Gratian's  Decretum,  I.  32,  258 
Great  Assize,  I.  125 
Guaranty,  III.  267 
Guests,  liability  for,  III.  384 


Habeas  corpus,  II.  531-548 

Haddon,  Dr.  Walter,  I.  191 

Hale,  Sir  Matthew,  I.  699;  II.  48,  56 

Halsbury,  Lord,  I.  834-835 

Hannen,  Judge,  I.  808 

Hardwicke,  Lord  Chancellor,  I.  715 

Harvard  College,  incorporation  of,  III.  241 

Hawkins,  Wm.,  II.  48 

Hengham,  Ralph,  I.  651;  Summa,  II.  38 

Henry  I.,  laws  of,  II.  16 

Henry  II.,  and  the  common  law,  I.  347-348;  laws  of,  II.  24-26 

Heresy,  writ  concerning^  I.  284;  II.  292-295 

Herschell,  Lord,  I.  831-834 

High  Commission,  court  of,  II.  271,  282-284 

Hilary  Rules,  II.  654 

Hindu  law,  I.  597-599 

Historical  school  of  jurisprudence  in  Germany,  I.  572 

Holmes,  O.  W.,  common  law,  II.  58 

Holt,  Lord,  and  the  law  of  promissory  notes,  III.  72-97 

Homine  Replegiando,  writ  de,  II.  476-533 

Hotchpot  and  collatio  bonorum,  I.  212 

Hotman,  Francis,  I.  181 

House  of  Lords,  court  of,  I.  756-763,  824-835;  reports  of,  II. 

154 

Howard,  William,  I.  641 
Hundred  Court,  I.  90 
Husband  and  wife,  property  relation  of,  in  Roman  law,  III.  793- 

796;   gifts  between,   III.   795-796;   property   relations   of, 

in  English  law,  III.  815-822 


846  INDEX 


Implied  assumpsit,  III.  280-298 

Imprisonment  for  debt,  I.  543-548 

Improvement  of  land  act,  III.  679 

Incorporation  laws,  general,  III.  255 

Indebitatus  assumpsit,  III.  276-280 

India,  English  law  in,  I.  597-619;  code  of  civil  procedure  in, 

II.  686-690 

Indian  Codes,  I.  603-604;  working  of,  I.  607-612 

Ine,  Code  of,  II.  9 

Infants,  chancery  jurisdiction  over,  I.  220;  torts  of,  III.  510; 
real  estate  of,  III.  688-689 

Inheritance,  Anglo  Saxon  law  of,  I.  106;  law  of,  in  Massachu- 
setts, I.  374;  act  of  1833,  III.  691 

Injunctions,  I.  193;  and  interdicts,  I.  223 

Injuries,  in  Anglo  Saxon  law,  I.  102 

Inns  of  court,  I.  199,  266;  during  Commonwealth,  I.  477>  646, 
681-684,  701;  exclusion  of  attorneys  from,  II.  639 

Inn-keepers,  law  of,  III.  155;  liability,  III.  385 

Inquests,  I.  116 

Inquisition,  II.  367;  procedure  by,  in  chancery,  II.  728 

Insolvency,  I.  543-548 

Inspection  of  merchandise,  III.  22 

Instance  jurisdiction,  I.  310 

Insurance  companies,  in  America,  III.  247 

Insurance  law,  history  of,  I.  242,  329;  III.  98-116 

International  law,   and   the   admiralty   courts,   I.    325,   562-564 

Intestacy,  English  law  of,  in  American  Colonies,   I.   431-463; 

III.  690;  mediaeval  law  of,  III.  723-36 
Invention,  disclosure  of,  III.  141 
Inventor,  true  and  first,  III.  139 

Ipswich,  maritime  court,  I.  291;  Domesday  of,  I.  292;  Domes- 
day book  of,  III.  11 
Ireland,  English  law  in,  I.  356 
Irnerius,  law  teacher,  I.  31 
Issues  in  pleadings,  II.  621-622 

Italian  law,  influence  of,  upon  negotiable  instruments,  III.  53-56 
Itinerant  Justices,  I.  51;  II.  216 

Jamaica,  law  of,  I.  419 

James  I.,  legislation  concerning  canon  law,  I.  282 

James,  Judge,  I.  802 

Jeffreys,  Judge,  I.  705 ;  trials  by,  II.  520 

Jerusalem,  Assizes  of,  I.  45 

Jessel,  Sir  George,  I.  810-813 

Jews,  exchequer  of,  and  Jewish  obligations,  III.  664-668 

Joint  stock  companies,  III.  192,  200 

Judge  and  jury,  I.  767-769 


INDEX  847 


Judges,  non-professional,  in  American  Colonies,  I.  388;  pay- 
ment of,  I.  478 

Judgment,  in  ancient  law,  I.  96;  and  decree,  II.  731 

Judicature,  act  of  1873,  I.  805;  acts,  II.  679-681 

Judicial  Committee  of  Privy  Council,  I.  835-836 

Judicial  writs,  II.  559 

Judiciary  law,  I.  52 

Junius,  letters  of,  I.  240 

Jurists,  development  of  law  through,  I.  361 

Jury,  I.  116,  126;  in  early  Massachusetts,  I.  378-379;  in  early 
American  law,  I.  386;  in  American  Colonies,  I.  393;  trial, 
I.  708;  development  of,  II.  408-416;  punishment  for  ver- 
dict, II.  494;  special,  for  mercantile  cases,  III.  14,  28 

Jus  Gentium,  I.  340-341,  584 

Justices  of  the  Peace,  II.  217,  411,  449 

Justinian,  I.  16-18;  codification  of,  I.  345 

Kent,  James,  Law  Studies  of,  I.  837-847 

Kenyon,  Chief  Justice,  I.  719 

King,  court  of,  I.  50,  123;  peace  of,  I.  101 ;  jurisdiction  ofj  oy§? 

crimes,  II.  404;  peace  of,  inJV&£dle^Ag5s,~  II.~1<03-417 
Kingsmill,  Richard,  I.  687, 
Knight-Bruce,  Justice,  I.  800: 

Laesio  fidei,  III.  307 

Land,  distribution  of,  in  New  England,  I.  434 

Land  Books,  Anglo  Saxon,  II.  64 

Land  companies,  early  in  America,  III.  244-249 

Land  law,  as  nucleus  of  English  law,  I.  354-355 

Landlord  and  tenant,  III.  699-702 

Land  transfer,  III.  707-719;  act,  1897,  III.  691,  707 

Lanfranc,  Archbishop  of  Canterbury,  I.  628;  II.  75 

Langdale,  Lord,  I.  501,  740 

Language,  of  the  law,  I.  480,  714;  of  charters  and  statutes,  II. 

198-202;  legal,  II.  421,  610 
Law  merchant,  see  Merchant,  law 
Law  reform,  committee  of,  1653,  I.  470,  482 
Law  schools,  at  Pavia,  I.  30,  197,  262,  590,  646,  684,  701 
Law  studies,  revival  of,  I.   590,  681-684;  of  Chancellor  Kent, 

I.  837-847 
Lawyers,  absence  of  trained,  in  American  Colonies,  I.  369-370; 

in  early  Massachusetts,  I.   385 ;  in  American  Colonies,  I. 

403,  406-409,  412 
Lease  and  release,  III.  705 

Leasing  powers,  under  settled  land  acts,  III.  683 
Legacies,  I.  220 
Leges  Barbarorum,  I.  19-20,  34-40;  II.  156 


848  INDEX 


Leges,  private  collections  under  names  of,  II.  16-18,  72-73 
Legislation,  I.  40-42,  54-58;  in  Massachusetts,  I.  373;  function 

of,  in  extension  of  law,  I.  583-585 
Letchford,  Plain  Dealing,  I.  382 
Lex  and  jus,  III.  40 
Libel,  early  law  of,  III.  447 
Liens   on  land,   III.   656-660;   by  warranty,   III.   657-658;   by 

dower,   III.   658-660;    of   feudal   service   and   rent   service, 

III.  660 

Limitation  act,  1874,  III.  693 
Limitation  of  liability,  III.   192,  229-231 
Limitations,  statute  of,  1833,  III.  693;  statute  of,  under  land 

title  registration,  III.  715 
Lindley,  Lord,  I.  816 
Litis  contestatio,  II.  757-760,  768 

Littleton,  Sir  Thomas,  I.  169,  676;  II.  46;  Tenures,  II.  94 
Liverpool,  court  of  passage,  I.  300 
Livingston,  Edward,  and  the  codes   for  Louisiana,  I.   508-509; 

II.  657 

Local  community  unincorporated,  III.   165    166 
Local  courts,  in  13th  century,  I.  561 ;  den     id  for,  during  Com- 
monwealth, I.  475-476 
Local  law  and  common  law,  I.  60 

Lombards,  laws  of,  I.  19;  and  history  of  insurance,  III.  110 
Lombard  jurists,  influence  of,  upon  negotiable  instruments,  III. 

59-70 

London,  White  Book  of,  I.  292,  300;  Judicia  Civitatis,  II.   11 
Lord  and  Man,  I.  98 

Louisiana,  Livingston's  Codes  for,  I.  508-509 
Lowther,  Hugh,  I.  656 
Lucy,  Richard,  Chief  Justiciar,  I.  637 
Lunatics,  torts  of,  III.  509;  real  estate  of,  III.  699 
Lushington,  Judge,  I.  753 
Lyndhurst,  Lord,  I.  725 
Lyndwood,  Provinciale,  I.  265;  II.  258 

Magna  Charta,  II.  26,  80 

Malynes,  Gerard,  on  the  law  merchant,  III.  8,  77 

Manor,  III.  165 

Mansfield,  Lord,  I.  716;  and  the  law  merchant,  III.  13-15,  75; 

and  insurance  law,  III.  116;  and  patent  laws,  III.  144 
Manus  marriage,  III.  786-788 
Marine  insurance,  III.  107 

Maritime  courts,  I.  294-297;  during  Commonwealth,  I.  474-475 
Maritime  law,  I.  230-236,  292;  II.  321-328 
Marriage,  civil,  in  early  Massachusetts,  I.  374;  law  of,  during 

Commonwealth,  I.   484;  in  Roman  and  English  law,  III. 


INDEX  849 


782-833;  prohibited  degrees  in,  III.  805-809;  canon  law  of, 

III.  809-812;  disabilities  regarding.  III.  813-814;  form  of, 

in  England,  III.  814-815 
Married  women,  property  rights,  III.  686-688;  in  equity,  III. 

818-819;  legislative  changes,  III.  819 
Mary,  Queen,  legislation  concerning  canon  law,  I.  278 
Maryland,  early  law  of,  I.  400-403;  chancery  jurisdiction  in,  II. 

803-804 
Massachusetts,  early  law  of,  I.  372-386;  distinctive  doctrines  of 

early  law,  I.  374;  chancery  jurisdiction  in,  II.  779-786 
Masters  in  Chancery,  I.  215 
Matrimonial  jurisdiction,  I.  226;  of  ecclesiastical  courts,  II.  298- 

301 

Maule,  Judge,  I.  745 
Merchant,  law,  I.  47-48,  104,  220,  237-246,  289-331;  custom  of, 

I.  246;  law  in  relation  to  internal  and  foreign  trade,  I.  327; 

law,  distinctive  doctrines,  I.  20,  327-329;  contributions  to 

common  law,  III.  34-50;  history  of,  III.  7-15;  and  master's 

liability,  III.  382;  proof  of,  III.  44,  74 
Merton,  statute  of,  I.  260;  provisions  of,  II.  26 
Mettingham,  John,  I.  652 

Mining  companies,  early  in  America,  III.  244 
Mirror  of  Justices,  II.  38,  85 
Misadventure,  responsibility  for,  III.  483-489 
Mistake,  I.  223 
Modern  reports,  II.  138 

Money,  had  and  received,  I.  241 ;  III.  295-297 
Montague,  Chief  Justice,  I.  690 
Moore's  Reports,  II.  134 

Morals,  offenses  against  ecclesiastical  jurisdiction,  II.   295-297 
Mortgages,  I.  218;  history  of,  III.  646-672;  on  registered  land, 

III.  717 

Mortmain,  statute  of,  I.  154;  III.  175 
Moslem  law,  I.  597-599 
Municipal  corporations,  III.  162 


Napoleon,  Codification  of,  I.  361 
Natura  Brevium,  II.  44 
Natural  equity,  as  rule  of  decision,  I.  600 
Natural  law,  as  rule  of  decision,  I.  418,  437,  451 
Nature,  law  of,  and  law  merchant,  III.  28,  42,  45 
Negotiable  instruments,  early  history  of,  I.  304,  329;  III.  51-71 
Negotiable  paper  and  the  staple,  III.   17 

New  England,  popular  law  in,  I.  370;  Agrarian  system,  I.  432 
New  Hampshire,  early  law  of,  I.  387;  chancery  jurisdiction  in, 
II.  785-786 


850  INDEX 


New  Jersey,  early  law  in,  I.  395-396;  chancery  jurisdiction  in, 
II.  795-797 

New  York,  early  law  of,  I.  390-395;  codification  in,  II.  657-661, 
670;  chancery  jurisdiction  in,  II.  792-795 

Nisi  prius  rulings  on  evidence,  II.  696 

Norfolk,  trial  of,  II.  495-96 

Norman  Conquest,  effect  of,  I.  49-53 ;  element  in  English  peo- 
ple, I.  625;  law,  sources  of,  II.  68-71;  influences,  II.  213 

Northampton,  Assize  of,  I.  136;  II.  445 

North  Carolina,  chancery  jurisdiction,  II.  806 

Nottingham,  Lord,  I.  674,  702 

Novelty  in  patents,  III.  145 

Nudum  pactum,  III.  334 

Numerical  system  of  evidence,  II.  693 

Oath,  I.  92;  trial  by,  II.  383-392 

Odio  et  atia,  writ  de,  II.  476,  534 

Oleron,  laws  of,  II.  325 

Ordeal,  I.  93,  116;  trial  by,  II.  392-396,  486-488 

Ordinances  and  statutes,  II.  180 

Outlawry,  I.  95 

Oyer  and  Terminer,  commissions  of,  II.  253 

Pannormia,  I.  254 

Park,  Sir  James,  on  law  of  insurance,  III.  116 

Parke,  Baron,  I.  747 

Parliament,  I.  157;  Rolls,  II.  90,  178-180,  191-192;  relief  by 

on  petition,  II.  230-231 

Parliamentary  commission,  on  pleading,  II.  652 
Parol  contracts,  early  history  of,  III.  304-319 
Parol  evidence  rule,  II.  694 
Partners,  law  of,  in  law  merchant,  III.  48 
Partnership,  I.  221;  history  of  law  of,  III.  183-194 
Patents,  history  of  English,  III.   117-147;  summary  of  grants 

of,  III.  138 
Pateshull,  I.  642 
Patteson,  Judge,  I.  744 
Peace,  King's,  in  Middle  Ages,  II.  403-417 
Peculiar,  court  of,  II.  276 
Pecunia  trajectitia,  I.  243 
Penal  servitude,  I.  555-556 
Penitentials,  I.  252 
Pennsylvania,  early  law  of,  I.   396-400;   chancery  jurisdiction 

in,  II.   797-801,  810-823;   equity  jurisdiction  in,  II.   797- 

801,  810-823 

Peregrini,  in  Roman  law,  I.  339-340 
Perpetuities,  rule  against,  I.  703,  III.  685 


INDEX  851 


Personal  laws,  system  of,  I.  20,  38-40 

Petty  jurisdiction,  in  Massachusetts,  I.  377 

Piepoudre,  court  of,  I.  237,  298;  III.  9,  35 

Pipe  Rolls,  II.  77 

Pipe  Roll  Society,  II.  60 

Piracy,  I.  296,  297,  305,  312;  admiralty  jurisdiction  over,  IT, 
320 

Pleading,  in  early  Massachusetts,  I.  377,  658-659;  develop- 
ment of,  II.  614-642;  and  law  of  agency,  III.  410-412 

Plowden,  Reporter,  II.  128-130 

Poland,  law  of,  I.  594 

Pole,  Reginald,  I.  172 

Police,  organization  of,  I.  552-555;  history  of,  II.  454-456 

Pollock,  Baron,  I.  746 

Popular  law,  in  New  England,  I.  370;  in  New  Jersey,  I.  395 

Positions  in  civil  law  pleading,  II.  762 

Powers,  under  settled  land  acts,  III.  682-683 

Praemunire,  statute  of,  I.  272;  II.  261 

Praetors  and  chancellors,  I.  216 

Praetor  Peregrinus,  I.  340,  581 

Praetors,  Roman,  II.  220-223 

Praetorship  in  Rome,  I.  235 

Precedents,  authority  of,  repudiated,  I.  388;  authority  of,  in 
American  Colonies,  I.  409;  use  of,  II.  Ill 

Prerogative  court,  I.  230;  II.  278 

Prerogative,  royal,  and  confirmation  of  colonial  law,  I.  458 

Prescription,  act,  1833,  III.  694;  law  of,  III.  694-696 

Presentment,  I.  129;  by  grand  jury,  II.  415 

Press,  censorship  of,  III.  462 

Presumption  of  innocence,  II.  514 

Primogeniture  and  wills,  III.  780 

Primogeniture,  in  New  England,  I.  436 

Printing  of  law  books,  I.  687 

Prison  reform,  I.  555-556 

Prisoners'  Counsel  act,  II.  469 

Private  bills,  I.  538 

Privilege  from  legal  process,  II.  539 

Privy  Council,  and  law  of  American  Colonies,  I.  383,  763- 
764;  jurisdiction  regarding  patents,  III.  146;  reports  of, 
II.  154;  ecclesiastical  jurisdiction  of,  II.  282 

Prize  jurisdiction,  I.  323;  of  admiralty,  II.  361 

Probate,  divorce,  and  admiralty  courts,  I.  798-800 

Probate  jurisdiction,  I.  228;  II.  301 

Procedure,  ancient,  I.  92-96;  in  American  Colonies,  I.  377-379, 
386-389,  392,  397,  405;  technicalities  of,  I.  520;  in  high 
court  of  admiralty,  II.  343 ;  of  law  merchant,  III.  35-39 

Process,  in  ancient  law,  I.  95-96;  in  real  actions,  II.  6l6 


852  INDEX 


Profession,  legal,  division  into  barristers  and  attorneys,  I.  646; 

III.  756 

Prohibition,  writ  of,  I.  155,  314;  II.  260 
Promissory  notes,  history  of,  III.  72-97 

See  also  NEGOTIABLE  INSTRUMENTS 
/Proof,  in  ancient  law,  I.  92-94 
Provinces,  of  Rome,  and  Roman  law,  I.  578-585 
Provinciale  of  Lyndwood,  I.  265 
Provisions  of  Merton,  II.  26 
Provisors,  statutes  of,  II.  26 1 

Prynne,  Lawyer,  I.  703;  animadversions,  III.  43 
Pseudo-Isidore,  I.  24-25 
Public  Record  Office,  II.  60 
Pulton,  edition  of  statutes  by,  II.  173-176 
Pynson,  printer  of  Year-books,  II.  99 

Quadripartitus,  Law  book,  II.  15 
Quare  ejecit  infra  terminum,  III.  619-622 
Quarter  Sessions,  II.  217 
Quasi-contracts,  III.  292-298 

Raleigh,  I.  642;  trial  of,  II.  498 

Ratification,  doctrine  of,  III.  400-404 

Real  actions,  III.  637-639 

Real  property,  history  of  the  law  of,  in  19th  century,  III.  673- 

718 

Real  writs,  III.  612-616 
Reception,  of  Roman  law,  I.  59;  of  laws,  I.  290;  of  common  law 

in  America,  I.  368,  408 
Rechtsbiicher,  I.  56;  II.  156 
Rectitudines  Singularum  Personarum,  II.  63 
Recognition,  I.  116 
Record  Commission,  II.  59 
Records,  Judicial,  II.  29-30,  78,  81 
Record,  matter  of,  in  ecclesiastical  courts,  II.  776 
Reeves,  John,  History  of  English  Law,  II.  56 
Reformation  of  ecclesiastical  laws,  I.   191 
Reformation,  and  English  Law,  I.  350;  and  the  canon  law,  II. 

264-268 

Reform  Bill  of  1832,  I.  352 
Register  of  Writs,  II.  86,  549-596 

Registration  system  during  Commonwealth,  I.  474,  485 
Registration  of  title,  III.  708-719 
Regulated  companies,  III.  199 
Renaissance,  English  law  and,  I.  168-207 
Rent,  transfer  of,  III.  604-05 
Replevin  and  distress,  III.  428,  431-432 


INDEX  853 


Reporters,  II.  44 

Reports,  II.  31-32,  86,  123-154;  license  for  printing,  II.  124; 
and  Records,  II.  597 

Requests,  court  of,  I.  202,  694 ;  court  of,  II.  252 

Respondeat  superior,  III.  380-382,  532 

Restraint,  of  Trade,  I.  671 ;  on  Alienation,  I.  670 

Retainer,  right  of,  III.  743 

Reversion,  transfer  of,  III.  605-607 

Review,  commission  of,  II.  281 

Rhode  Island,  early  law  of,  I.  388-390;  chancery  jurisdiction  in, 
II.  787-790 

Rhodian  law,  I.  231 

Robbery,  appeal  of,  III.  418-422 

Roger  of  Salisbury,  I.  631 

Roman  law,  as  subsidiary  law,  I.  30;  position  of,  I.  59-65;  re- 
ception of,  I.  l6l ;  influence  upon  the  law  of  England,  I. 
208-247;  extension  to  provinces,  I.  578-585;  reception  of, 
in  Germany,  I.  591 ;  reception  of,  in  Scotland,  I.  591 ;  proc- 
ess of  expansion,  I.  612-613;  in  England,  II,  74-76;  plead- 
ings in,  II.  754-758;  trial  in,  II.  757-758;  and  agency,  III. 
373-374 

Roman-Dutch  law,  in  New  York,  I.  393 

Rome,  history  of  legal  development,  I.  332-364 

Romilly,  Samuel,  I.  500-501,  722 

Royal  Legislation,  I.  61 

Rules  of  court,  procedure  by,  II.  682-686 

Russia,  law  of,  I.  593 

Sale,  in  Anglo-Saxon  law,  I.  103 

Salica,  lex,  I.  35 

Salman,  in  German  law,  II.  707 

Saltonstall,  and  surrender  of  Connecticut  charter,  I.  444 

Sampson,  Abbott,  I.  638 

Saunders,  Edmond,  I.  704;  Reports  of,  II.  137 

Scandalum  magnatum,  III.  453 

Scandinavian  countries,  law  of,  I.  56,  594 

Scope  of  employment,  doctrine  of,  III.  406 

Scotland,  reception  of  Roman  law  in,  I.  197,  591 ;  law  of,  I. 

English  law  in,  I.  356 

Scriptures,  authority  of,  I.  396;  in  American  Colonies,  I.  411 
Scroggs,  Chief  Justice,  I.  704 
Seal,  corporate,  requirement  of,  III.  209-213 
Seisin,  III.  591-610 
Selborne,  Lord,  I.  826-828 
Seldon  Society,  II.  60 

Self-Crimination,  privilege  against,  II.  693;  III.  505 
Self-defense,  III.  508 


854  INDEX 


Serjeants,  II.  118 

Servants,  liability  for,  III.  520-537;  liability  for  torts  of,  III. 
495-503 

Settled  estates  act,  1877,  III.  680 

Settled  land  act,  1882,  III.  681;  recent  development  in  English 
law  of,  III.  674-686;  repairs  of,  III.  686 

Seven  Bishops,  trial  of,  I.  707 

Shareholders,  rights  of,  III.  217 

Shares,  nature  of,  III.  217-224 

Sheriff,  liability  for  deputy,  III.  386-387 

Ship-Money  case,  I.  699 

Shire  Court,  I.  114 

Siete  Partidas,  -I.  161,  263 

Six  Members  case,  II.  546 

Skrene,  lawyer,  I.  673 

Smith,  Sir  Thomas,  I.  176;  II.  47 

Somers,  Lord  Chancellor,  I.  713 

Sources  of  Law,  I.  36;  of  mediaeval  law,  II.  155-163;  of  Amer- 
ican colonial  law,  II.  164-168 

South  Carolina,  chancery  jurisdiction  in,  II.  807-808 

Southcote's  case,  III.  152 

Special  assumpsit,  III.  260-276 

Special  pleading,  I.  747,  779;  II.  638 

Specialty  debts,  III.  322 

Specification  in  patents,  III.  143-144 

Spiritual  courts,  during  Commonwealth,  I.  473 
See  also  ECCLESIASTICAL  COURTS 

Staple,  the  merchants  of  the,  III.  16-33 

Staple  courts,  III.  25;  appeal  from,  III.  38;  disappearance  of, 
III.  43 

Staple,  statute  of,  III.  30,  37 

Staple  Towns,  I.  302 

Star  Chamber,  substitutes  for,  I.  468;  II.  251;  trials,  II.  500- 
507;  procedure  in,  II.  501-507,  529;  jurisdiction  of,  in 
mercantile  cases,  III.  28;  and  sedition,  III.  454-456;  and 
law  of  libel,  III.  463-470 

Stare  decisis,  rule  of,  II.  Ill 

Statute  Rolls,  II.  80,  183-187,  196 

Statutes,  interpretation  of,  I.  273;  of  English  church,  I.  286; 
English  in  America,  I.  402 ;  English,  in  American  Colonies, 
I.  408,  416-430,  436,  455;  early  English,  II.  26;  and  ordi- 
nances, II.  42;  English,  historical  survey,  II.  167-205; 
public  and  private,  II.  182;  drafting  of,  II.  188-190;  pro- 
mulgation of,  II.  202-205;  merchant,  security  by,  III.  665 

Statutes  Cited 

Acton  Burnell,  Statute  of,  I.  140;  III.  19 
Edward  I.,  statutes  of,  II.  27 


INDEX  855 


Kent,  statutes  of,  II.  9 

Limitations,  statute  of,  1833,  III.  693;  statute  of,  tinder  land 
registration,  III.  715 

Mortmain,  statute  of,  I.  154;  III.  175 

Praemunire,  statute  of,  I.  272;  II.  261 

Provisors,  statutes  of,  II.  261 

Staple,  statute  of,  III.  30,  37 

Statute  of  Acton  Burnell,  I.  140 

Statute  De  Donis,  I.  145 

Statute  of  distribution,  I.  230 

Statute  of  Frauds,  I.  351 

Statute  of  Mortmain,  I.  154 

Statute  of  Praemunire,  I.  272 

Statute  of  promissory  notes,  III.  92-94 

Statute  of  Staple,  I.  292 

Statute  of  Uses,  I.  66,  694 

Statute  of  Westminster  the  Second,  I.  145-155 

Statute  of  Wills,  I.  695 

Statute  of  Winchester,  I.  153 

Statutes  of  Appeals  and  Submission,  I.  275 

Westminster,  statute  of,  the  second,  I.  145-153 

Winchester,  statute  of,  I.  153;  II.  447 
Staunforde,  Sir  William,  Pleas  of  the  Crown,  II.  47 
Staunton,  Hervey,  I.  654 
Stock,  transfer  of,  III.  219-224 
Stoppage  in  transitu,  III.  49 
Stowell,  Lord,  I.  244,  749-753 
Strict  settlement,  III.  675 
Study  of  law,  I.  348,  646,  681-684;  at  Inns  of  Court,  I.  477; 

revival  of,  I.  590 
Submission,  contract  of,  III.  290 
Subpoena,  writ  of,  I.  193;  II.  245 
Subsidiary  law,  common  law  as,  I.  372,  400,  411 
Suit,  debts  provable  by,  III.  323 

Summary  jurisdiction,  I.  550;  in  early  Massachusetts,  I.  374> 
Supremacy,  act  of,  II.  269 
Supreme  Court  of  Judicature,  I.  516,  539-542 
St.  John,  Oliver,  I.  699 
St.  Leonards,  Lord,  I.  737 
Suretyship,  development  of,  II.  718 


Talbot,  Lord  Chancellor,  I.  715 
Technicalities  of  procedure,  I.  520 
Tenterden,  Lord,  I.  742 
Term  Reports,  II.  145-146 
Territorial  law,  I.  42-49 


856  INDEX 


Testamentary  jurisdiction,  I.  259;  of  ecclesiastical  courts,  II. 

301-310 

Thelluson  Act,  III.  685 
Theodorici  Edictura,  I.  16,  346;  II.  156 
Theodosius,  code  of,  I.  344,  589 
Theological  questions  in  litigation,  I.  276 
Thornton's  Summa,  II.  37 
Throckmorton,  trial  of,  II.  490-495 
Thurlow,  Lord  Chancellor,  I.  715 
Tithes,  III.  699 

Title,  registration  of,  III.  708-719 
Tolzey,  court  of  Bristol,  I.  300 
Torts,  master's  liability  for,  III.   377-389;  responsibility   for, 

III.  474-537 

Torture,  absence  of,  in  England,  II.  462 
Tottell,  printer  of  Year-books,  II.  100 
Transportation  for  crime,  I.  555-556 
Trent,  Council  of,  and  law  of  marriage,  III.  810 
Tresilian,  Chief  Justice,  I.  668 
Trespass,  writ  of,  II.  412-579,  582,  618;  de  Bonis  Asportatis, 

III.  422-30;  to  try  title,  III.  543-645 
Trials,  older  modes  of,  II.  367-402;  in  17th  century,  II.  512- 

517 

Trover,  history  of,  III.  417-445 
Trust  and  third  beneficiary,  III.  360-367 
Trusts,  II.  247;  origin  of,  II.  747-752 
Twelve  Tables,  law  of,  I.  338 
Tyrrel's  case,  II.  747-748 

Undisclosed  principal,  III.  390 

University  degree,  in  civil  and  canon  law,  I.  280-285 

Unjust  enrichment,  III.  295 

Use  and  occupation,  III.  299-303 

Use  upon  use,  II.  748 

Uses,  doctrine  of,  in  equity,  II.  706-716;  and  trusts,  origin  of, 

II.  737-752 
Utility  in  patents,  III.  146 

Vacarius  and  Roman  law  in  England,  II.  75 

Vengeance  and  liability  for  tort,  III.  480 

Vere,  Alberic  de,  I.  631 

Victoria,  Queen,  progress  of  law  during  reign  of,  I.  516-557 

Virginia,  early  law  of,  I.  403-407;  chancery  jurisdiction  in,  II. 

805-806 

Visigothorum,  Lex  Romana,  I.  15,  346;  II.  156 
Vivum  vadium,  III.  668 


INDEX  857 


Vocational  duty,  III.  265-268 

Vote  of  share-holders  in  corporation,  III.  224-226 

Wager  of  law,  excluded  in  law  merchant,  III.  35;  II.  387-392 

Warranty,  III.  266-267 

Watson,  Lord,  I.  828-830 

Wergild,  I.  98 

Wessex,  laws  of,  II.  9 

Westbury,  Lord,  I.  787-789 

Westminster  Hall,  I.  629 

Westminster,  statute  of  the  second,  I.  145-153 

Wightman,  Judge,  I.  744 

Wills,  history  of  law  of,  in  England,  III.  704-705,  770-781 

Willes,  Judge,  I.  775-777 

William  the  Conqueror,  laws  of,  II.  22-24 

Willoughby,  Chief  Justice,  I.  664 

Winchester,  statute  of,  I.  153;  II.  447 

Wisby,  laws  of,  I.  231,  291 

Withernam,  capias  in,  II.  476-533 

Witnesses,  trial  by,  II.  376-383;  in  criminal  cases,  II.  528-526; 
compulsory  process  for,  II.  636;  employment  of,  and  the 
law  of  evidence,  II.  692-694;  competency  of,  II.  693;  com- 
pulsory attendance  of,  II.  693 

Wolsey,  Cardinal,  I.  694 

Writs,  in  consimili  casu,  I.  151;  II.  28-29;  register  of,  II.  86, 
549-596;  original  and  judicial,  II.  559;  de  cursu,  II.  56l ; 
groups  of,  II.  583-586;  list  of,  II.  567-569,  572-578,  591- 
593 

Wyclif,  I.  178 

Wykeham,  William,  I.  665 

Yale  College,  charter  of,  III.  242 

Year-books,  I.  192,  649-651 ;  II.  42,  86,  91-92,  96-122 

Yelverton,  Judge,  I.  675 

Zouch,  on  admiralty  jurisdiction,  III.  42 


LIST    OF   AUTHORS    CONTRIBUTING 


AMES,  JAMES  BARR. 

43.  The  Origin  of  Uses  and  Trusts II,  737-752 

59.  The  History  of  Assumpsit Ill,  259-303 

60.  The  History  of  Parol  Contracts  prior  to  As- 

sumpsit     .Ill,  304-319 

64.  The  History  of  Trover Ill,  417-445 

67.  The  Disseisin  of  Chattels Ill,  541-590 

ANDREWS,  CHARLES  McLEAN. 

13.  The  Influence  of  Colonial  Conditions,  as  Illus- 
trated in  the  Connecticut  Intestacy  Law.  .  .1,  431-463 
BALDWIN,  SIMEON  EBEN. 

58.  History  of  the  Law  of  Private  Corporations. Ill,  236-255 
BEALE,  JOSEPH  HENRY,  JR. 

17.  The  Development  of  Jurisprudence  during  the 

Nineteenth     Century I,  558-573 

54.  The  History  of  the  Carrier's  Liability Ill,  148-160 

BIGELOW,  MELVILLE  MADISON. 

75.  The  Rise  of  the  English  Will Ill,  770-781 

BOWEN,  BARON   (CHARLES  SYNGE  CHRISTOPHER). 

16.  Progress  in  the  Administration  of  Justice  dur- 
ing the  Victorian  Period I,  516-557 

BRODHURST,  BERNARD  EDWARD  SPENCER. 

48.  The  Merchants  of  the  Staple Ill,  16-33 

BRUNNER,  HEINRICH. 

23.  The  Sources  of  English  Law II,  7-52 

BRYCE,  JAMES. 

10.  A  Comparison  of  the  History  of  Legal  Devel- 
opment at  Rome  and  in  England I,  332-366 

18.  The  Extension  of  Roman  and  English  Law 

throughout  the  World I,  574-621 

76.  Marriage  and  Divorce  under  Roman  and  Eng- 

lish  Law Ill,  782-833 

BURDICK,  FRANCIS  MARION. 

49.  Contributions   of  the   Law   Merchant   to   the 

Common  Law Ill,  34-50 

CAILLEMER,  ROBERT. 

74.  The  Executor  in  England  and  on  the  Con- 
tinent      Ill,  746-769 


860       LIST    OF    AUTHORS    CONTRIBUTING 

CARR,  CECIL  THOMAS. 

55.  Early  Forms  of  Corporateness Ill,  161-182 

CRANCH,  WILLIAM. 

51.  Promissory  Notes  before  and  after  Lord  Holt.  .Ill,  72-97 
DILLON,  JOHN  FORREST. 

15.  Bentham's    Influence   in   the    Reforms    of   the 

Nineteenth     Century I,  492-515 

FISHER,  SIDNEY  GEORGE. 

46.  The  Administration  of  Equity  through  Com- 
mon Law  Forms  in  Pennsylvania II.  810-821 

GREEN,  ALICE  STOPFORD   (MRS.  JOHN  RICHARD). 

4.  The    Centralization   of   Norman   Justice   under 

Henry     II I,  111-138 

GROSS,  CHARLES. 

72.  The  Mediaeval  Law  of  Intestacy Ill,  723-736 

HALL,  HUBERT. 

33.  The  Methods  of  the  Royal  Courts  of  Justice 

in  the  Twelfth  Century II,  418-442 

HAZELTINE,  HAROLD  DEXTER. 

70.  The  Gage  of  Land  in  Mediaeval  England.  .  .Ill,  646-672 
HENING,  CRAWFORD  DAWES. 

62.  History    of   the    Beneficiary's    Action    in   As- 

sumpsit    Ill,  339-367 

HEPBURN,  CHARLES  McGuFFEY. 

39.  The  Historical  Development  of  Code  Pleading 

in  America  and  England II,  643-690 

HOLDSWORTH,    WlLLIAM    SfiARLE. 

9.  The  Development  of  the  Law  Merchant I,  289-331 

24.  The  Year  Books II,  96-122 

29.  The  Ecclesiastical  Courts  and  Their  Jurisdic- 
tion     II,  255-311 

38.  The  Development  of  Oral  and  Written  Plead- 
ing     II,  614-642 

HOLMES,  OLIVER  WENDELL,  JR. 

41.  Early  English  Equity II,  705-721 

63.  The  History  of  Agency Ill,  368-414 

73.  Executors  in  Earlier  English  Law.  . . , Ill,  737-745 

HULME,  EDWARD  WYNDHAM. 

53.  The    Early    History    of    the    English    Patent 

System     Ill,  117-147 

INDERWICK,  FREDERICK  ANDREW. 

27.  The  Courts  as  Established  under  Edward  the 

First     .' II,  209-218 

JENKS,  EDWARD. 

2.  The  Development  of  Teutonic  Law I,  34-67 

5.  Edward  I,  the  English  Justinian I,  139-167 


LIST    OF   AUTHORS    CONTRIBUTING       861 

2  5  A.  List   of   Sources    for   Continental   Mediaeval 

Law   II,   156-163 

35.  The  Story  of  the  Habeas  Corpus II,  531-548 

50.  Early  History  of  Negotiable  Instruments Ill,  51-71 

KENT,  JAMES. 

21.  An    American    Law    Student    of    a    Hundred 

Years    Ago I,  837-847 

LANGDELL,  CHRISTOPHER  COLUMBUS. 

44.  The   Development   of   Equity   Pleading   from 

Canon   Law   Procedure II,  753-778 

MAITLAND,  FREDERIC  WILLIAM. 

I.  A  Prologue  to  a  History  of  English  Law I,  7-32 

6.  English  Law  and  the  Renaissance I,  168-207 

23.  Materials  for  the  History  of  English  Law II,  53-97 

36.  The    History    of    the    Register    of    Original 

Writs    II,  549-596 

68.  The  Mystery  of   Seisin Ill,  591-610 

MEARS,  THOMAS  LAMBERT. 

30.  The  History  of  the  Admiralty  Jurisdiction.  .II,  312-364 
MITCHELL,  WILLIAM. 

56.  Early  Forms  of  Partnership Ill,  183-194 

PIKE,  LUKE  OWEN. 

37.  An    Action    at    Law    in    the    Reign    of    Ed- 

ward   III II,  597-613 

42.  Common  Law  and  Conscience  in  the  Ancient 

Court   of   Chancery II,  722-736 

POLLOCK,  SIR  FREDERICK,  BART. 

3.  English  Law  before  the  Norman  Conquest I,  88-107 

32.  The  King's  Peace  in  the  Middle  Ages II,  403-417 

REINSCH,  PAUL  SAMUEL. 

II.  English  Common  Law  in  the  Early  American 

Colonies I,  367-415 

25B.  List  of  Sources  for  American  Colonial  Law. II,  164-168 
ROBINSON,  R. 

14.  Anticipations    under    the    Commonwealth    of 

Changes  in  the  Law I,  467*491 

SALMOND,  JOHN  WILLIAM. 

61.  The  History  of  Contract Ill,  320-338 

SCRUTTON,  THOMAS  EDWARD. 

7.  Roman    Law    Influence    in    Chancery,    Church 

Courts,  Admiralty,  and  Law  Merchant I,  208 

47.  General   Survey  of  the  History  of  the   Law 

Merchant Ill,  7-15 

SEDGWICK,  ARTHUR  GEORGE. 

69.  The  History  of  the  Action  of  Ejectment III,  611-645 

SIOUSSAT,  ST.  GEORGE  LEAKIN. 


862      LIST    OF    AUTHORS    CONTRIBUTING 

12.  The    Extension    of    English    Statutes    to    the 

Plantations    I,  416-430 

SPENCE,  GEORGE. 

28.  The  History  of  the  Court  of  Chancery II,  219-254 

STEPHEN,  SIR  JAMES  FITZJAMES. 

34.  Criminal   Procedure,   from   the   Thirteenth  to 

the   Eighteenth  Century II,  443-530 

STUBBS,  WILLIAM. 

8.  The  History  of  the  Canon  Law  in  England.  .  .  .1,  248-288 
THAYER,  JAMES  BRADLEY. 

31.  The  Older  Modes  of  Trial II,  367-402 

UNDERBILL,  ARTHUR. 

71.  Changes   in   English   Law  of   Real   Property 

during  the  19th  Century Ill,  673-719 

VANCE,  WILLIAM  REYNOLDS. 

52.  The  Early  History  of  Insurance  Law Ill,  98-116 

VEEDER,  VAN  VECHTEN. 

20.  A  Century  of  English  Judicature I,  730-836 

25.  The  English  Reports,  1537-1865 II,  123-155 

65.  The  History  of  the  Law  of  Defamation III,  446-473 

WAIT,  FREDERICK  SCOTT. 

69.  History  of  the  Action  of  Ejectment Ill,  611-645 

WIGMORE,  JOHN  HENRY. 

40.  A  General  Survey  of  the  History  of  the  Rules 

of    Evidence.  . .- II,  691-701 

66.  Responsibility  for  Tortious  Acts;  its  History. Ill,  474-537 
WILLISTON,  SAMUEL. 

57.  The  History  of  the  Law  of  Business  Corpora- 
tions   before    1800 Ill,  195-235 

WILSON,  SOLON  DYKE. 

45.  Courts  of  Chancery  in  the  American  Colonies. II,  779-809 
ZANE,  JOHN  MAXCY. 

19-  The  Five  Ages  of  the  Bench  and  Bar  of  Eng- 
land    I,  625-729 


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