.IT) ^^=^"1 k; =□ O^Sr^ - " SS^Br^ >^^^a= §-==rn S«: gg? the ppesence of this Book in the].m. kelly liBRapy has Been made possiBle thRouqh the qeneposity of Stephen B. Roman From the Library of Daniel Binchy * A HISTORY OF ENGLISH LAW f A HISTORY OF ENGLISH LAW IN SEVEN VOLUMES For List of Volumes and Scheme of the History, see p. vii. A HISTORY OF ENGLISH LAW BY W. S. HOLDSWORTH. KG., D.G.L. VINERIAN PROFESSOR OF ENGLISH LAW IN THE UNIVERSITY OF OXFORD; FELLOW OF ALL SOULS COLLEGE, OXFORD ; LATE FELLOW OF ST. JOHN'S COLLEGE, OXFORD ; FOREIGN ASSOCIATE OF THE ROYAL BELGIAN ACADEMY ; FELLOW OF THE BRITISH ACADEMY VOLUME III THIRD EDITION, REWRITTEN To say truth, although it is not necessary for counsel to know what the history of a point is, but to know how it now stands resolved, yet it is a wonderful accomplishment, and, without it, a lawyer cannot be accounted learned in the law. Roger North METHUEN & GO. LTD. 36 ESSEX STREET W.C. LONDON First Published .... May igoj Second Edition .... October igi4 Third Edition, Rewritten . . 1923 PRINTED IN GREAT BRITAIN TO The Right Honourable FREDERICK EDWIN EARL BIRKENHEAD SOMETIME LORD HIGH CHANCELLOR OF GREAT BRITAIN THIS WORK IS BY HIS lordship's PERMISSION RESPECTFULLY DEDICATED PLAN OF THE HISTORY (Vol. I.) BOOK I. — The Judicial System : Introduction. Chap. I. Origins. Chap. II. The Decline of the Old Local Courts and the Rise of the New County Courts. Chap. III. The System of Common Law Jurisdiction. Chap. IV. The House of Lords. Chap. V. The Chancery. Chap. VI. The Council. Chap. VII. Courts of a Special Jurisdiction. Chap. VIII. The Reconstruction of the Judicial System. (Vol. II.) BOOK II. (449-1066) — Anglo-Saxon Antiquities : Introduction. Part I. Sources and General Development. Part II. The Rules of Law : § i The Ranks of the People ; § 2 Criminal Law ; § 3 The Law of Property ; § 4 Family Law ; § 5 Self-help ; § 6 Procedure. BOOK III. (1066-1485) — The Medieval Common Law: Introduction. Part I. Sources and General Development: Chap. I. The Intellectual, Political, and Legal Ideas of the Middle Ages. Chap. II. The Norman Conquest to Magna Carta. Chap. III. The Reign of Henry III. Chap. IV. The Reign of Edward I. Chap. V. The Fourteenth and Fifteenth Centuries. (Vol. III.) Part II. The Rules of Law: Chap. I. The Land Law : § i The Real Actions ; § 2 Free Tenure, Unfree Tenure, and Chattels Real ; § 3 The Free Tenures and Their Incidents ; § 4 The Power of Alienation ; § 5 Seisin : § 6 Estates ; § 7 Incorporeal Things ; § 8 Inheritance ; § 9 Curtsey and Dower ; § 10 Unfree Tenure ; § ii The Term of Years ; § 12 The Modes and Forms of Conveyance ; § 13 Special Customs. Chap. II. Crime and Tort : § I Self-help ; § 2 Treason ; § 3 Benefit of Clergy, and Sanctuary and Abjuration ; § 4 Principal and Accessory ; § 5 Offences Against the Person ; § 6 Possession and Ownership of Chattels ; § 7 Wrongs to Property ; § 8 The Principles of Liability ; § 9 Lines of Future Development. Chap. III. Contract and Qua si-Contract. Chap. IV. Status : § i The King ; § 2 The Incorporate Person ; § 3 The Villeins ; § 4 The Infant ; § 5 The Married Woman. Chap. V. Succession to Chattels : § i The Last Will ; § 2 Restrictions on Testation and Intestate Succession ; § 3 The Representa- tion of the Deceased. Chap. VI. Procedure and Pleading : § i The Criminal Law ; § 2 The Civil Law. (Vol. IV.) BOOK IV. (1485-1700) — The Common Law and Its Rivals: Intro- duction. Part I. Sources and General Development: Chap. I. The Sixteenth Century at Home and Abroad. Chap. II. English Law in the Sixteenth and Early Seventeenth Centuries : The Enacted Law. (Vol. V.) Chap. III. English Law in the Sixteenth and Early Seventeenth Centuries : Developments Outside the Sphere of the Common Law — International, Maritime, and Commercial Law. Chap. IV. English Law in the Sixteenth and Early Seventeenth Centuries : Developments Out- side the Sphere of the Common Law — Law Administered by the Star Chamber and the Chancery. Chap. V. English Law in the Sixteenth and Early Seventeenth Centuries: The Development of the Common Law. (Vol. VI.) Chap. VI. The Public Law of the Seventeenth Century. Chap. VII. The Latter Half of the Seven- teenth Century : The Enacted Law. Chap. VIII. The Latter Half of the Seven- teenth Century : The Professional Development of the Law. (Vol. VII.) Partll. The Rules of Law. Chap. I. The Land Law :§ i The Action of Ejectment ; § 2 Seisin Possession and Ownership ; § 3 Contingent Remainders ; § 4 Executory Interests ; § 5 Powers of Appointment ; § 6 The Rules Against Per- petuities ; § 7 Landlord and Tenant ; § 8 Copyholds ; § 9 Incorporeal Things ; § 10 Conveyancing; § 11 The Interpretation of Conveyances. Chap. II. Chattels Personal : § i The Action of Trover and Conversion ; § 2 The Ownership and Possession of Chattels; §3 Choses in Action. Chap. III. Contract and Quasi- Contract : § i The Doctrine of Consideration ; § 2 The Invalidity, the Enforcement, and the Discharge of Contract ; § 3 Quasi-Contract. Chap. IV. The Law Mer- chant. I. — Commercial Law: §1 Usury and the Usury Laws; §2 Negotiable Instruments ; § 3 Banking; § 4 Commercial Societies ; § 5 Agency ; § 6 Bankruptcy. II. — Maritime Law. III. — Insurance. Chap. V. Crime and Tort. Lines of De- velopment. § I Constructive Treason and Other Cognate Offences ; § 2 Defama- tion ; § 3 Conspiracy, Malicious Prosecution, and Maintenance ; § 4 Legal Doctrines Resulting from Laws Against Religious Nonconformity ; § 5 Lines of Future Development; § 6 The Principles of Liability. Chap. VI. Status: § i The King and Remedies Against the Crown : § 2 The Incorporate Person ; § 3 British Sub- jects and Aliens. Chap. VII. Evidence, Procedure, and Pleading : §1 Evidence; § 2 Common Law Procedure ; § 3 Equity Procedure. CONTENTS PAGE Plan of the History vii List of Cases xxxvii-xli List of Statutes xliii-xlv BOOK III. (continued) PART II THE RULES OF LAW CHAPTER I The Land Law § I. The Real Actions 3-29 What is a real action ? 3.4 Importance of the real actions 4 Those by which rights to corporeal hereditaments of free tenure were asserted 5-14 (i) The writ of right group 5-8 Varieties 5-6 Magna Carta § 34 6 Survivals in them of old rules 6-7 Disuse of writs of right 7-8 Neglect to pass statutes of limitation — Legal memory . 8 (ii) The Assize of novel disseisin 8-11 Origins 8 Scope 9 Development 9-10 Used to protect title 10 Extended by the legislature 10 Extended by omission to pass statutes of limitation . . 10 The Assize of nuisance 11 (iii) The writs of entry sur disseisin 11-14 Principle of the writs of entry 11-12 Date when they originated 12 Reason for their invention 12-13 Their original scope 13 Entry in the per and cui 13 Magna Carta 13 Entry in the /05^ 13-14 Their position in relation to the other groups ... 14 They supersede the others 14 The other real actions 15-26 (i) The actions which lie as between lord and tenant . . . 15-17 Ne injuste vexes 15 De consuetudinibus et serviciis 15-16 Cessavit 16 ix CONTENTS PAGE Mesne * i6 Warrantia Cartae i6 Escheat i6 De recto Custodiae terrae et heredis 17 (ii) The actions which lie to protect the lord or tenant of parti- cular estates in the land 17-19 Estates tail 17-18 The writ of Formedon . . . * . . . 17 Its nature 17 Varieties 17 Did they exist before De Donis ? .... 18 Estates for life 19 Intrusion 19 Entry ad communem legem 19 Entry in casu proviso 19 Entry in consimili casu 19 Estates for life or years 19 Ad terminum qui praeteriit 19 Estates held in common 19 Partitione facienda 19 (iii) The actions which lie to protect incorporeal rights . . 19-20 Novel disseisin 19 Quod permittat 20 Quo jure 20 Secta ad molendinum 20 (iv) The action which lies to assert the right to a villein . . 20 Native habendo 20 De Libertate Probanda 20 (v) The actions which arise out of certain family relationships . 20-24 Husband and wife 20-22 Writs connected with dower 20-21 Writ of right of dower 20 Writ of dower under nihil habet 21 Admeasurement of dower 21 Developments made by Chancery in the eighteenth century 21-22 Cui in vita 22 Cui ante divortium 22 Causa matrimonii praelocuti 22 Ancestor and heir 22-24 Writs of right 22-23 Assize of Mort d'ancestor 23 Extensions of the assize 23 Ayel, Besaiel, Cosinage 24 (vi) The actions which arise out of the incapacity of persons . 24 Dum fuit non compos mentis 24 Dum fuit infra aetatem 24 Sine assensu capituli 24 (vii) The actions concerning ecclesiastical property . . . 24-26 The writ of right of advowson 24 Assize of darrein presentment 24-25 Quare impedit 25 Quare non admisit 25 Assize utrum 25-26 (viii) The actions which deal with abuse of the process of the court 26 Attaint 26 Quod ei deforceat 26 Redisseisin and post disseisin 26 Encroachments of the personal actions 26-29 Trespass and novel disseisin 27 „ „ wardship 27 „ „ replevin 27 CONTENTS Td PAGB Trespass and nuisance 28 „ „ Curia Claudenda, Cessavit, Secta ad Molen- dinum 28 ,, „ Annuities and Corodies .... 28 The real actions and real property 29 § 2. Free Tenure, Unfree Tenure, and Chattels Real . . 29-34 Free tenure and unfree tenure 29-34 The procedural test 29-30 Wide field covered by the free tenures 30 Comparison with French law 30 Survivals 30-31 What ideas underlie the procedural test ? 31 Their fluctuating nature 31 Incidents 31 Character of services 31 Analogy of servant and independent contractor . . . 31-32 Status 32 Control of lord over those holding in villeinage necessary for the working of the manor 32-33 The distinction remains after the causes for it disappear . . 33 The conveyancing test 33*34 Free tenure and chattels real 34 Denial of the real actions rests on no economic difference . . 34 Difference in future history 34 §3. The Free Tenures and their Incidents 34-73 The free tenures 34-54 (i) Frankalmoin 34*37 Definition ^4-^S Services 35 Jurisdiction 35 No secular service 36 Tenure by Divine Service 36 Effect of Edward I.'s legislation 36-37 (ii) Knight service 37-46 Knight service in Littleton 37 Had lost its original meaning in the fifteenth century . . 37-38 Knight service in the reigns of William I. and II. . . . 38-39 King, mesne, and tenant 39-40 Commutation for personal service 40 Uncertain fine as between king and tenant in chief . . 40-41 Scutage as between mesne lord and tenant ... 41 Effects on the development of the tenure of (a) royal policy . 42-44 Favours commutation 42 The enquiry of 1 1 66 43 Effects 43 Lords grant their scutages to the king .... 43 Tends to be levied as if a national tax .... 43 Quia Emptores 44 Uncertain fines paid to the king lost sight of . . . 44 Effects on the development of this tenure of (6) the growth of parliament 44-45 Magna Carta and scutage 44 Superseded by newer forms of national taxation . . 45 Tenure per baroniam 45-46 (iii) Serjeanty 46-51 Serjeantry and service 46 The "Servientes" of Domesday 46 Personal character of the service 46 Legal consequences of this 46-47 Non-military services 4748 The great officers of the kingdom 47-48 xii CONTENTS PAGE Domestic services 48 The magnates and their Serjeants 48 Military services 49-51 Supplied light auxiliary troops 49 Becomes a duty to supply small munitions of war ... 49 Causes of decay 49-51 Hired servants more efficient 49-5° Honourable and military services only left .... 50 Grand and petit serjeanty 50 Origin of technical distinction 50-5^ (iv) Socage 51-54 Negative characteristics of the tenure 51 " Soc " and " Socmen " 51 Villein and free socage 52 General characteristics 52 Socage and fee farm 52-53 Merger of the two classes 53 Socage falls in best with modern ideas of land-holding . . 53 Burgage 53-54 The incidents of the free tenures 54-73 (i) Homage and Fealty 54-57 Definitions 54 Original consequences of homage 55 Homage and felony 55 Importance diminishes 56 Homage and allegiance 56 Growth of jurisdiction of common law courts ... 56 Consequences become proprietary 56 Conclusions to be drawn from this history .... 57 (ii) Relief and Primer Seisin 57-61 Origin of the relief 57-58 Not payable on death of lord 58 At first a characteristic of tenure by military service . . 58 Spreads to the other tenures 59 Amount of the relief 59 Gradually fixed 59-60 The lord and primer seisin 60 The Statute of Marlborough 60-61 The king and primer seisin 61 (iii) Wardship and Marriage 61-66 Basis of these rights 61 Ancient and modern ideas 61-62 Vagueness of these rights after the Conquest .... 62 Glanvil 63 Magna Carta 63 Statute of Merton 63-64 Statute of Westminster I. 64 Regarded as chattels 64 Slight modifications 64 Conflict between the rights of different lords .... 64-65 Statute of Westminster H 65 Only exist in tenure by knight-service and grand serjeanty . 65 Guardianship in socage 65-66 (iv) Aids 66-67 Original vagueness 66 Magna Carta 66 Growth of fixity 66-67 Statutes of 1275 ^^^ i35o 67 (v) Escheat and Forfeiture 67-73 Definitions 67 Escheat and reversion 67-68 Escheat propter defectum sanguinis 68 CONTENTS xiii PAGE Escheat propter delictum tenentis 69 Felony and escheat 69 Magna Carta 69 Doctrine of corruption of blood 69 Year, day, and waste 69-70 The Act of 1870 70 Forfeiture 70 Forfeiture and treason 70-71 The Act of 1870 71 The application of escheat and forfeiture to equitable estates . 71-72 Law as to this in the Middle Ages 71 The Statute of Uses 71 Later equitable estates 71-72 (a) Escheat 71-72 (b) Forfeiture 72 General conclusions 73 4. The Power of Alienation 73-87 (i) Restrictions in the interest of expectant heirs .... 73-76 Glanvil 73-74 Effects of the rule of primogeniture on the older rules . . 75 Bracton 75 Heir compensated by prohibition of devise . . . . 75-76 (2) Restrictions in the interest of the maintenance of the rights and duties involved in the relation of lord and tenant . . 76-87 Vague ideas of the older law 76-77 Land-owning becomes a form of property .... 77 The royal courts favour freedom of alienation .... 77-78 Mortmain 78 Magna Carta 78-79 (i) Feudal restraints 79-86 (a) Mesne tenant and mesne lord 79-83 Alienation of land 79-8 1 Subinfeudation and substitution . . . . 79 80 Quia Emptores 80-81 It diminishes the importance of tenure ... 81 Did not apply to the king 81 Alienation of the seignory 81-83 Feudal difficulty 82 Legal difficulty 82 Attornment 82-83 (b) The tenant in chief and the king 83-85 Ordinance of 1256 83 The law as laid down accepted .... 83-84 Statute of 1327 84 Reasons for difference in treatment of tenants in chief 84 The principle of freedom of alienation ... 85 Public policy 85 Limited restraints allowed 85-86 Restrictions on tenants of smaller estates . . 86 No hint of a rule against remoteness ... 86 (ii) Restraints upon alienation to religious houses . . . 86-87 The Provisions of Westminster 87 De Viris Religiosis 87 Ancient and modern reasons for this legislation . . 87 \ 5. Seisin 88-101 Meaning 88 Ownership and possession 88-89 The contrast the mark of a mature system of law .... 89 English law has no theory of ownership like that of Roman law . . 89 Scope of the writ of right 89-90 Bracton's treatment of the subject 90 XIV CONTENTS Seisin and different rights thereto is all that English law recognizes Consequences (li The person seised has all the rights of an owner (2) The person disseised has none of these rights . Better protection of the right to seisin .... Rights of person seised not curtailed The Real Property Limitation Acts No usucapio because it is not wanted The logical consequences of this principle .... Originality of the common law theory The question why the law protects possession Application of these theories to the facts of land holding Two persons cannot possess at once the same thing . But applied to lord and tenant and to life tenant and reversioner An incorporeal thing cannot be possessed .... The idea of livery of seisin is applied to incorporeal things . ii) In respect of transfer and creation .... 2) In respect the way the law regards them {3) In respect of the way in which they are enforced and protected PAGE 91 91 91-92 92 92-93 93 93-94 94 94 95 95 96 96 96 96-97 97-101 98-99 99-100 100- 10 1 § 6. Estates estate tail Wide powers of landowners in the thirteenth century .... The " law " which could be imposed by the Forma Doni . Royal gifts Influence of Roman learning as to conditions Confused state of the law Thomas of Weyland's settlement Determinable fees Estates in possession The estate in fee simple The word *• heirs " a word of limitation .... This conclusion reached through the law as to warranty Was favoured both by the judges and the great landowners The word " assigns " . Becomes unnecessary . Origins of the rule in Shelley'' s Case Later history Why it has caused so many doubts The estate in fee simple conditional and the The maritagium .... The conditional gift The interpretation of these gifts . A fixed rule of interpretation grows up De Donis Conditionalibus The literal meaning of the statute . Bereford, C.J.'s, construction Its modern construction . Varieties of the estate tail Petitions for repeal of De Donis The legal profession evade it . Warranty .... Lineal and collateral warranty Warranty and collusive real action The common recovery . Antiquity of . Taltartini's Case The effect of a fine . Estates for life, pur autre vie, at will and at sufferance Old ideas as to the position of the tenant lor life Newer ideas — Waste The tenant for life is seised .... Results of this 101-137 ioi-ro2 102-103 103 103 103-104 104 105 105-132 105-111 105 105-106 106 106 106-107 107-108 108-109 109-111 111-120 III 111-112 112-113 113-114 114 114 "5 115-116 116 116-117 117-120 117 117-118 118-119 118 118 119 120 120-125 120 120 120 120-121 CONTENTS XV PAGE The Provisions of Westminster 121 The Statute of Marlborough 121 The Statute of Gloucester 121 The Statute of Westminster II 121-122 Later legislation 1^2 The year books and waste 122 Must be voluntary 122 Permissive waste 122-123 Ameliorating waste 123 " Without impeachment of waste " . . . . 123 Botes and estovers 123 The estate pur autre vie a chattel in the thirteenth century 123-124 Regarded as a freehold in the fourteenth century . 124 Occupancy 124-125 The tenancy at will 125 Originally regarded as a servitude .... 125 Emblements 125 Tenancy at sufferance 125 Co-ownership 126-128 The various kinds 126 Gradual evolution 126 Bracton and Britton 126-127 Partition 127 Tenancy in common 127-128 Tenancy by entireties 128 Estates created to secure money lent ; tenancies by Elegit, Statute Merchant, and Statute Staple . . . 128-132 Mortuum vadium and vivum vadium in Glanvil . . 128-129 Defects 129 They disappear 129 Three methods adopted 129-130 The form which prevailed 130 Reasons for this 130 Strictness of the common law 130 The Jews and the mortgage 130-131 Tenancy by Elegit 131 Statutes Merchant and Staple 131-132 Estates in expectancy 132-137 Reversions and remainders 132-133 The reversion 133 Reversion and escheat 133 The remainder 134-137 Vested or contingent 134 The latter cease to be valid 134 Littleton on Rickhill's settlement 135 Begin to be allowed in Henry VI. 's reign . . . 135-136 Not fully allowed till the following period . . . 136 A doubtful case in the Book of Assizes .... 136-137 Note upon Taltarum's Case 137 7. Incorporeal Things 137-171 Advowsons, Commons, Rents, and Easements 138-157 Advowsons 138-143 Definition 138 Historical importance . . 138 Origins 139 The older and the newer ideas 140 Treated like a piece of land 140 Why it gave rise to so much litigation 140-141 Helps towards the realization of incorporeal things . . 141-142 And towards their classification 142-143 VOL. III. — b xvi CONTENTS PAGE Commons . . .* 143-151 Classification of rights of common 143-144 Origins i44-i45 Rights of common and the village community . . . 146 Approvement 146-147 The Statute of Merton 147 The Statute of Westminster II 147 Causes which led to distinction between rights appendant and those appurtenant . . . • . • 147-150 Rights appurtenant become the most general . . 150-151 Rent service, rent sec and rent charge 151-153 Annuities 152 Corodies 152-153 Mediaeval realism 153 Easements I53-I57 Classification I53-I54 Number of easements not fixed Nature not clearly fixed 154 The easement and proceedings for nuisance .... 154-156 No clear distinction between easements and natural rights . 156 No easement in gross 156-157 Covenants annexed to the land 157-166 Easements and covenants 157-158 Origin in the obligation of warranty 158-159 (i) How far on a conveyance in fee simple can (i) the benefit and (ii) the burden of a covenant be made to run with the land 159-165 Modes of enforcing the obligation of warranty . . 159-160 Implied and express warranties 160-161 (i) The benefit of these covenants 161-163 The analogy of inheritance 161-162 The analogy of an easement 162 Pakenhani's Case 162 Privity of estate in assignor 162-163 Covenants for title 163 (ii) The burden of these covenants 163-165 Bracton 163 Cannot be annexed to land 164 This accords with the principles of modern law . 164-165 (2) How far could a covenant be made to run with the reversion 165 Prescription 166-171 Only applies to certain kinds of incorporeal things . . 166 What is legal memory 166 Bracton 166-167 Deed, custom, prescription 167-168 Special " law " created 168 Therefore prescription only for things against common right i68-i6g Franchises . . . i6g Communities prescribe 169 Change in the theory of prescription 169-170 Evidence of a grant made before memory . . . . 170 Effects of the old and nev^^ theories 170-171 §8. Inheritance 171-185 The rules of inheritance 171-172 (i) The preference of males to females 172 (2) The rules of primogeniture and coparcenary 172-175 Primogeniture the rule of the military fief .... 172 Parage 173 Spread of the rule 173-174 Coparcenary in Bracton 174 CONTENTS xvii PAGE Coparcenary and the incidents of tenure 174-175 (3) The rule of representation 175 Glanvil and Bracton 175 The " casus regis " 175 Settled in Edward I.'s reign 175 (4) The exclusion of ascendants 175-177 Blackstone's view 176 Maitland's view 176 Objections 176 Quia Emptores and Britton 177 (5) The inheritance of collaterals 177-183 The " gradual " and '* parentelic " schemes .... 177-178 The parentelic scheme in the Year Books 178-179 What about remote ascendants ? 179 " Paterna paternis, materna maternis " 179-180 This maxim and the law of procedure 180 Illustration 180-181 Case in Y.B. 49 Edward III 181 Father's ancestors preferred 181-182 How are we to decide between the father's ancestors ? . . 182 Clere v. Brook 182 Manwood C.B.'s dictum 182 Bacon and Hale 182 Plowden and Blackstone 183 The Inheritance Act 183 (6) The position of the half-blood 183-185 Uncertain in the thirteenth century 183-184 Growth of common law rule as to " possessio fratris " . . 184-185 Hardships of the rule 185 9. Curtesy and Dower 185-197 Curtesy . 185-189 Derivation of the term i86 Origins i86 The common law rule 187 De Donis 187 The wife's seisin 187-188 Birth of issue 188 Later history 188-189 Dower 189-197 The common law rule 189 Five kinds of dower known to Littleton 189 (i) The old order — dower created by the act of the parties . . 189-191 Glanvil and Bracton 189-190 Dower of chattels disappears 190 Limitation of amount disappears 190 Ad ostium ecclesiae 190 Ex assensu patris 191 Disappearance 191 (2) The new order — dower created by law 191-197 (i) The reasons for the change 192-193 Feudalism and the widow's rights .... 192 La pluis beale 192 The power of alienation and the widow's rights . . 192 Need for a fixed rule of law 192-193 (ii) The contents of the widow's right 193-195 The third 193 Thehusband's alienation does not affect it . . . 193 The technical reasons for this rule .... 193-194 A compromise 194 Relation to the named dowers 194-195 Becomes general 195 xviii CONTENTS PAGE (iii) The modes in which dower may be barred . . . 195-197 Joint tenancy I95 Elopement 195 Exchange 195 Fines 195-196 The Use 196 The Statute of Uses 196 Equitable bar 196-197 The devices of the conveyances 197 The Dower Act 197 10. Unfree Tenure 198-213 The common field mode of cultivation 198 The " farm " system 198 The labour-service system 198-199 The money-rent system 199 Thirteenth to fifteenth centuries — transition from labour-service to money-rent system 199 The composite class of villani 199-200 Services 200 Incidents • . . 200-201 Origins of these incidents are diverse 201 Fixity of the system 201 Gradual nature of the transition 201-202 The process of transition 202-206 Growing prosperity 202 Rent-paying tenants in the thirteenth century . . . 202-203 The Black Death 203 Breaks up the old economic conditions 203-204 The revolt of 1381 205 Spread of leases and commutation 205-206 Tenure by copy of the court roll 206 The effect of this transition on the land law .... 206-209 Increased protection for the copyholder 206-207 Need for this . 207-208 The Chancery and the Council 208 The common law courts follow 208-209 The settlement of the position of the copyholder .... 209-213 Not settled till the Tudor period 209 Increased need for regulation at this period .... 209-210 Statutes and royal commissions 210 Efforts of all the courts 21 r Nature of the settlement effected 211-212 Effect on the law of copyhold tenure 212 213 11. The Term of Years 213-217 The termor's right is a jus in personam 213-214 The Quare ejecit infra terminum 214 Statute of Gloucester Trespass — ejectio firmae 214 Why it remained a chattel interest . . . . . . . 214-216 The term becomes recoverable by ejectio firmae 216 Reasons for this 216-217 Real property and chattels real 217 12. The Modes and Forms of Conveyance 217-256 Existing conveyances show us the land law in motion . . . 218 The practice of conveyancers 218 Compared with the Responsa Prudentum 219 Of less authority in this period than later 219 These conveyances occupy a larger sphere owing to importance of the land law 219 CONTENTS xix PAGE The history of the forms of conveyance 219-249 Conveyancing in France and England 220 (i) Freehold interests in lands held by free tenure . . . 220-246 (i) Conveyances which take effect simply by the act of the parties 221-234 Feoffment with livery of seisin 221 Writing not needed 221 Ceremonies which evidence livery .... 221-222 Need to leave the land vacant 222 Tendency to confuse the livery with ceremonies which evidence it 222 Roman law 222-223 The delivery of a deed 223 In England the deed is not allowed to convey . . 223-224 The Jury 224 Conveyance not conceivable without a real trans- fer 224 Reasons for the long life of this principle . . . 224 Elimination of the lord's participation . . . 225 Deeds become common to show the intent with which seisin is delivered 225 Writ forms 226 Influenced by ecclesiastical ideas .... 226 The modern deed 226-227 Deeds poll and indentures 227 Parts of the deed and usual clauses .... 227-230 Date and ceremonies attending execution . . . 230-231 The Release 232 The Surrender 232 The Confirmation 232-233 The Exchange 233 Partitions 233 Deeds of Grant and incorporeal things . . . 233-234 Growing importance of Deeds of Grant . . . 234 (ii) Conveyances which depend for their efficacy on the machinery of the court 234-246 Conveyances made in the king's court . . . 235 Conveyances enrolled there 235 Effect of possession by order of the court . . . 235-236 Fines 236-245 Parts of the fine 236-238 The writ 236 The Licentia concordandi 237 The concord ....... 237 The note -37 The foot . . . . . . . . 237-238 Varieties of the fine 238 The two types 238 Sur done grant et render combines the advantages of both 239 Reverence with which the fine was regarded . . 239-240 Its effects 240-245 (i) Bars adverse claims 240-244 Fines and livery of seisin .... 240-241 Fines become a substitute for livery of seisin . 241-242 Effect of merely levying a fine . . . 242-243 Statute of non-claim 243-244 Richard III. and Henry VII.'s statutes . . 244 (2^ Guarantee against forgery 245 (3) Attornment of tenants 245 i^) The married woman's conveyance . . . 245 5) Useful for settlements 245 XX CONTENTS PAGE Recoveries 246 Not a regular mode of conveyance in this period . 246 {2) The Copyhold 246-248 Surrender and admittance 246 Effects various transactions 247 Reasons for the form 247 Lord becomes merely passive 247- 248 (3) The Lease for Years 248-249 Forms of conveyance similar to freehold interests . . 248-249 Need for entry 249 The modes in which landowners can deal with their land by these conveyances 249-254 Thirteenth century settlements 250 Elaborate conditions in leases 250 Growing fixity in forms 250 Many conveyances needed to effect a settlement .... 250 Feoffment and re-feoffment 250-251 Instance from 1348 251-252 Fines and settlements 252 Fines and the validity of dispositions thereby made . . . 252 Control by the judges 252 Advantages to the parties 253 Comparison with the law of pleading 253 Effects on the art of conveyancing 253-254 Mediaeval conveyancing and the development of the law . . . 254-256 The conveyances illustrate many branches of law . . . 254 Personal and human side of legal development .... 255-256 § 13. Special Customs 256-275 Survivals of an old order 256 Causes which made for their disappearance 257 Causes which made for the retention of such as survived . . . 257-259 Gavelkind 259-263 Derivation of the term 259 (i) The Kentish Custumal and its contents 260-262 Contents 260-262 Extent of application 262 (2) The reasons for the continued existence of these Kentish cus- toms 262-263 Ancient Demesne 263-269 Definition 263-264 The king a franchise holder 264 Peculiar tenure 264-265 Blackstone's account 265 The little writ of right 265-266 The writ of monstraverunt 266 The tenant's services 266 Survival from pre-Conquest days 266-267 Later law 267 Freeholders or not ? 267-269 31 George IL c. 14 . . 269 Disappearance of the peculiar remedies 269 The Borough Customs 269-275 Causes of divergence . . 269 (i) Rules arising from the fact that the borough customs were codified 270-271 Restraints on alienation 270-271 Inheritance 271 Borough English . . . • . . . . 271 (2) Rules arising from the commercial character of the borough . 271-273 Devise 271 Repair and waste 272 CONTENTS xxi PAGE The lessee for years 272 Wardship 272-273 The customs are influenced by and influence the common law . 273 Germs of later legal doctrines in some of the customs . . . 273-274 Survive only in isolated rules 274 Historical importance 274 Miss Bateson's summary 274-275 CHAPTER H Crime and Tort Characteristics of the criminal law in this period 276 The law encumbered by survivals 276 Judicial decisions and the criminal law 277 Statutes and the criminal law 277 Progress in the law of tort 277-278 § I. Self HELP 278-287 Self-help and the law of crime and tort 278 In defence of person or property 278-279 Recapture of goods 279-280 The crown's rights in case of felony 280 Re-entry on land 280 Distraint 281-287 Definition 281 Development of 281 Its various forms 281 (i^ Distraint damage feasant 281 (2) The landlord's right to distrain 281-287 Origin and development 28i-:?82 Regulation 282 Vetitum namii ^82-283 Things distrained in the custody of the law . . . 283 Replevin 283-284 History of the action 284 Procedure 284 De proprietate probanda 284 Replevin and trespass 285 Replevin and trover 285-287 § 2. Treason 287-293 The position of Edward III. 's statute 287 (i) Earlier ideas as to treason 287-291 (a) The idea of treachery 287-288 Alfred's law 287 Petit treason 288 (b) The idea of a breach of the feudal bond 288 Clauses due to this idea 288 Conspiracy to levy war 288 (c) The idea that duty to the king is higher than the feudal duty to the lord 288-289 Loss of England's continental possessions .... 288 Theories of the king's lawyers 289 (d) The Roman law of laesa mejestas 289 Elasticity of these ideas 289 Treason and felony 289-290 No clear distinction 290 Reason 290 Extensions of treason 290-291 Objects of the framers of Edward III. 's statute . . . 291 (2) Treason in the fourteenth and fifteenth centuries .... 291-293 xxii CONTENTS PAGE Treason in Richard II.'s reign 291-292 Henry IV ^ ^?2 No constructive extensions in the fifteenth century . . 292 Indications of the form that these extensions will take m later law 292-293 § 3. Benefit of Clergy, and Sanctuary and Abjuration . . 293-307 Benefit of clergy and sanctuary 293-294 Benefit of clergy 294-302 How it developed 294-295 Its mediaeval history 295-299 (i) The thirteenth century 295-297 (i) The procedure when clergy was claimed .... 295-296 (ii) How the church dealt with its criminals .... 296 (iii) Persons who could claim the privilege .... 296-297 (iv) Cases in which it could not be claimed .... 297 (2) The fourteenth and fifteenth centuries 297-299 (i) Extension of the privilege 297 (ii) Increased control of the royal courts .... 297-299 (iii) Exclusion of certain oiTences 299 Later history 299-302 Henry VII.'s and VIII.'s statutes 299-300 Modificationof Henry VIII. 's statutes 300 (i) Persons who could claim the privilege .... 300 (ii) Consequences of a successful claim 300-301 (iii) Further exclusion of offences 301 Results of this 301-302 Blackstone and Benefit of Clergy 302 Sanctuary and Abjuration • . 303"307 Nature of this institution 303 Principles underlying it 303 The principle that certain places are sanctuaries .... 303 The principle that the refugee must abjure the kingdom . . 303-304 What places were sanctuaries 304 Refusal to abjure 304-305 Effects of abjuration 305 Who could not take sanctuary 305 Crimes to which the privilege applied 305 Attempts to restrict it in the Middle Ages 305-306 Changes made in Henry VIII.'s reign 306-307 His legislation repealed in 1603 307 Its abolition 307 Later so-called sanctuaries 307 § 4. Principal and Accessory 307-310 The common law classification 307-308 Only important in felony 308 Reasons for this 308 Accessories at the fact 308 Accessories before or after the fact 308 The definition of principal and accessory ...... 309 Application of the rule that you cannot try the accessory till the. principal is convicted 309-310 Elaboration of the rules 310 Later changes 310 § 5. Offences against the Person 310-318 Homicide 310-316 The modern classification 310-311 Not reached in this period 311 Process of discrimination begun 311 Homicide always an offence . 311 CONTENTS XXlll Very few exceptions Pardons in cases of misadventure or self-defence Misadventure Self defence Various degrees of guilt in felonious homicide Murdrum and Murder Killing other than by malice — manslaughter Need for a voluntary act directly causing death Attempts Suicide Rape Definitions Statute oi Westminster II Mayhem Definition Ceases to be a felony Large extent of trespass .... Shows the need for extending the criminal law its criminal side sinks into the background . Later statutory misdemeanours . of detinue §6. Possession and Ownership of Chattels Law originates in the history of the personal actions The development of the personal actions . (i) Involuntary loss of possession Glanvil and Bracton .... (i) The appeals of robbery and larceny . (ii) Actions for res adiratae Relation between the two remedies Nature of the remedy . Origin of sale by operation of law . Decay of these remedies .... (i) The appeals and the action of Trespass Comparison between these remedies (ii) The action for res adiratae and the action Scope of detinue .... Detinue against other than bailees The count in trover (iii) Legal doctrines resulting from these developments These actions delictual in character The overlapping of these remedies Order of priority chronological Precedence of the indictment to Tresp This advantageous to the Crown . Effects on the law .... (a) "Property" ascribed to thieves (b) Torts which amount to felonies {c) The rule in Baker v. Bolton (2) Voluntary parting with possession The term bailment . Legal position of the bailee The bailor's ownership Liability of the bailee The law in Glanvil's day Influence of Roman ideas (i) Influence of the Roman idea of dominium Bailor gets increased rights . Bailee's rights based on his liability over Influence of Roman ideas of liability Idea that bailee's absolute liability should be These ideas do not materalize But some tendencies in this direction (ii) modified PAGE 3" 312-313 313 313-314 314 314 315 315 315 315-316 316 316 3i6 316-317 316 317 317 317 318 318 318-360 318-319 319-351 319336 319-320 320 320-322 321 321-322 322 322 322-324 323-324 324-327 324 324-326 327 328-336 328 328 329 329 329-331 331-336 331 331-333 333-336 336-350 336 336 336-337 337-338 338-339 339 339-341 339-340 340-341 341-347 341 341 341-342 xxiv CONTENTS PAGE Theory that he can sue because accountable accepted . 342-344 Hence no diminution in his liability .... 344 Is this historically true ? 344-345 An academic question in the Middle Ages . . . 345 Reasons in favour of this view ..... 345-346 Reasons for basing his right to sue on his possession . 346 A continuous tradition in its favour . . . 34^-347 In harmony with fundamental common law prin- ciples 347 Holmes's view correct 347 Continued extension of the Bailor's rights .... 347-348 Trespass 34^ Detinue 348-349 (3) The origins of the action of trover and conversion . . . 35o-35i Why necessary 350-35^ How it differed from Detinue 35 1 Summary 351 The Mediaeval theory of the ownership and possession of chattels . 351-360 Comparison between land and chattels 351 Differences 351-352 But fundamental similarity in principle 352-353 Need for a delivery to pass property 353-354 The two exceptions 354 The contract of sale 354-357 The deed 357*358 They elucidate the conception of ownership 358 Elucidated mainly by the increased powers of owners out of possession 359 Parallel between lands and chattels 359 Influence of the law of actions 359-3^0 § 7. Wrongs to Property 360-371 Larceny 360-368 Not originally a felony 360 Reason 360 A felony from Henry II. 's reign . , 360 Bracton 360-361 Subsequent history 361 (i) Larceny and the theory of possesssion 361-366 Physical change of possession 361 Asportation 361 Intention 361-362 Definition too narrow 362 Bailee cannot commit 362 Consent of owner got by fraud 362-363 Taker from a thief 363 In this period only extended in two ways .... 363-366 The servant 363-364 The licencee 364-365 Interpretation of these exceptions .... 365 The carrier who broke bulk 366 (2) The value of the thing stolen 366-367 Grand and petit 367 (3) Things not the subject of larceny 367-368 Robbery 368 Burglary 369 Coke 369 Britton 369 Fitzherbert 369 The rule as to commission at night later ..... 369 The intent ........... 369 Arson 370 CONTENTS XXV PAGE Coke 370 Anglo-Saxon law ^^o Later definition , 370 Only form of injury to property recognized as a felony in this period 370 The scope of trespass 370-371 18. The Principles of Liability 371-388 The old principles remembered 371 Criminal liability 372-375 Grounds of excuse ......... 372 Compulsion in time of war 372 Self-defence 372 Infancy 372 Madness 372 Damage done by animals .... .... 373 Femes covert 373 Act and intent 373 Felony and civil wrong . 374 Intent the chief but not the only test 374 The intent and the evidence of it 374-375 Civil liability 375-388 Old principles not mitigated in the case of civil liability . . 375 A man is liable for his acts 375 Illustrated from the Y.BB 375-376 Accident no defence 376 Nor infancy or lunacy 376-377 But some harm may be justifiably inflicted 377 In the public interest 377 Protection of private rights 377-378 The act causing damage is the plaintiff's 378 Origin of doctrine of contributory negligence . . . 378-379 Idea of proximate consequence 379 Negligence • . . 379-380 Act of God • . . . 380 Convenience amounting to necessity 380-381 Effects of those developments on old principle of liability . . 381 Effect of growth of actions on the case 381 Roots of a doctrine of negligence 381-382 Liability of a master for the acts of his servant .... 382-385 The older rules 382 Command and consent must be proved 382-383 Was the servant's act the act of the master ? . . . 383-384 Consequence of the prevailing principle of liability . 384 A question of agency simply 384 Practical results 384-385 Extensions of the strict theory on grounds of public policy . 385-387 Damage by fire 385 Innkeepers, etc 385-386 Work done badly under a contract 386 387 Statutes 387 Mercantile custom 387 The later rule 387 The mediaeval principles of liability and constitutional law . 387-388 9. Lines of Future Development 388-411 Public duties of communities, officials, and citizens .... 388-389 Growing laxity of the control of the common law .... 389-390 Offences against the machinery of justice ...... 390-391 (i) Contempts of the court and its process 39^-394 Fine and imprisonment 391-392 Statutory extensions 392 xxvi CONTENTS PAGE Control by the court of its officers and of jurors . . . 392 Contempts in the presence of the court 392-393 No power to punish summarily 392-393 Indictment . 393 Enlargement of the court's power to punish summarily . 393 Influence of Star Chamber 393 Later part of the seventeenth century .... 393-394 The King v. Almon 394 (2) Perversion of the machinery of justice 394-400 Prevalence of these offences 394*395 Evolution of certain specific offences 395 Champerty 395*396 Maintenance 396-399 Stat. West. 1 396 Stat. West. II 397 Ordinance against conspirators, 1293 .... 397 Statute of conspirators . 397 Later statutes 397-398 Coke's definition of maintenance and champerty . . 398 Mediaeval distinctions 398-399 Embracery and maintenance 399-400 {3) Off"ences against justice generalized in later law .... 400-408 Forgery and perjury 400-401 Conspiracy 401-407 Bracton and Britton 401 Effect of Edward I. 's legislation 401-402 (i) Edward I.'s statutes ....... 402-404 (ii) The writ of conspiracy and its development . . 404-405 Limitations on the writ 405 (iii) The action on the case in the nature of a conspiracy . 405-407 Deceit 407-408 Original scope 407 Extension in case of sales 407-408 Defamation 408-411 Scandalum Magnatum 409 Object of this legislation 409 Not effective 409-410 The ecclesiastical jurisdiction 410 The common law controls ecclesiastical jurisdiction . . . 410-411 Does not assume jurisdiction in this period 411 CHAPTER III Contract and Quasi-Contract Antiquities 412 " Cause " in French Law 412 English and Roman theories of contract 412-413 Consideration 413 Consideration and " cause " 413 Periods in the history of the law 414 The age of Glanvil and Bracton . . 414-417 Glanvil 414-415 Bracton 415-416 The real and formal principles predominate 416 The Use 416 The thirteenth, fourteenth and early fifteenth centuries .... 417-428 Covenant 417-420 Why a sealed writing was binding 417 Sealed writings evidencing a debt 418 Other agreements 418-419 The seal and consideration 419-420 Develops idea of an actionable agreement 420 CONTENTS xxvii Debt PAGE 420-424 Debt and detinue 420 Debt and contract 421 On what contracts debt lies ^21 Quid pro quo 421-422 Of what Quid pro quo may consist 422 Extensions of the idea of Quid pro quo 422-423 Historical importance of these extensions 423 Inconveniences of the action 423-424 Felt more as the common law became more common . . . 424 The idea of quasi-contract 424-428 Developed by the action of debt , 425-426 Developed also by the action of account 426-428 Evolution of this action , 426-427 Brings out idea of implied and quasi-contract . . . 427-428 Is superseded in later law 428 The fifteenth and sixteenth centuries 428-454 Extensions of delictual liability 428 Contract and tort 428-429 Case and Assumpsit 429 (i) Original application of the action — misfeasance .... 429-434 Liability in tort incurred by doing work badly in breach of an undertaking 429-430 Illustrations 430-431 Somerton's Case 431-432 Ground of liability is tort 432 No liability for non-feasance . 433-434 (2) Extension of action to remedy certain non-feasances . . . 434-441 Views of Paston and Juyn, J.J 434-435 Their principle too large 435 The test ultimately applied 435 Doight's Case 435-436 Reasons for this decision 436-437 Views of Newton and Prisot, C.JJ. 437*438 Their reasoning fallacious 438 Explanation of it 438-439 State of the law at the close of the Middle Ages . . . 439-440 Further extension — The Doctor and Student .... 440-441 Comparison with Quid pro quo 441 Wholly executory contracts not enforceable .... 441 (3) Absorption of the sphere of Debt, and extension to remedy the breach of executory contracts 441-446 Competition of the Chancery 442 Popularity of Assumpsit 442 (i) Absorption of the sphere of Debt 442-444 (ii) Extension to wholly executory contracts .... 444-446 Slade^s Case 445-446 Special Assumpsit and Indebitatus Assumpsit . . 446 (4) Extension of the action to implied contracts 446-451 Slade's Case and implied contracts 446 Assumpsit on a quantum meruit 446-447 The principle generalized 447 Competition with the Chancery 447 Encroachment on spheres of Debt, Account, and Case . . 447-448 (i) Applied to enforce the liability of innkeepers, etc. . . 448 (ii) Confusion of the spheres of tort and contract . . 448-450 Consideration 449-450 (iii) Effect on principles of liability 450 Extension to quasi-contractual obligations later . . . 450-451 Assumpsit becomes the contractual action of the common law . . 451 Application of the maxim actio personalis, etc 451-452 Measure of damages 452 xxviii CONTENTS PAGE Evolution of an original theory of contract 453 Why this was possible 453-454 Effect on the law as a whole 454 CHAPTER IV Status •' Status to Contract " — how far true 455-456 Complexity of the mediaeval law of status 456 The point of view of mediaeval law 457 Gradual growth of the idea of a normal person 457 Varieties of status in mediaeval law 457-458 § I. The King 458-469 Blackstone's account of the prerogative 458-459 Periods in the history of the prerogative 459 Double aspect of the prerogative in the Middle Ages .... 460 The feudal ideas 460-463 The king a feudal lord writ large 460 These feudal powers more frequently heard of in the courts . . 461 Consequences of this conception 461 Allegiance and homage 461-462 The king is a lord who cannot be sued 462 Not the sole fountain of justice 462 Proprietary and governmental rights 462 Descent of the kingdom 462 The king's property 462-463 The national ideas 463-469 The king the representative of the state 463 Subject to law 463 The king a natural man 463 The king can die 463-464 The king can be under age 464 The king can do wrong 464-466 No idea that the king has two capacities 466 The theory suspected 466-467 Can the king be seised to a Use ? 467-468 Henry VII. 's Statute of Treason 468 Effect of the decline of feudal ideas 468-469 § 2. The Incorporate Person 469-490 The earlier groups 469 The group and the corporation 469-470 The idea of a corporation is neither primitive nor native . . . 470 Why the idea was received by the common lawyers .... 470 The church 471 Earlier ideas and difficulties 471-474 The theory of the />^rso«a^i;^a . 474 The theory applied to other groups 474 The borough 474-475 Evolution of the consequences of this conception . . . . 475 Creation 475-479 Who can create 475-476 Corporation and franchise 476 Agreement of canon and common law 477 How reconciled with the existence of unincorporate groups . . 477-478 The trust concept 478 The point of view of public law 478-479 Classification 479-482 Corporations aggregate and sole 479 Corporations aggregate and the boroughs 480 The church and the corporation sole 480-481 CONTENTS xxix PAGE King and corporation sole 482 Idea imperfectly worked out 482-483 The nature of corporate personality 482-487 (i) Distinct from its members 482-483 (ii) Its property distinct from that of its members .... 483-484 (iii) Its property is not liable for the debts of its members . . . 484 Speculations as to its nature 484-485 Difficulties in the application of these speculations . . . 485 (i) Effect of duress applied to members of a corporation . . 483-486 (ii) Effect of death, etc., of the head of a corporation . . . 486-487 Powers, capacities, and liabilities ....... 487-489 Difficulties arising from the character of a corporation . . 487-488 Delictual liability 488 Proprietary and contractual capacity — the seal .... 488-499 Dissolution 489-490 How dissolved .......... 489-490 Fate of its property 490 Future development of the law ........ 490 3. The Villeins 491-510 A composite class 491 Theories borrowed from the Roman law of slavery .... 491 (i) Do not fit the facts of English life 491-493 No market in villeins 492 Protected by the custom of the manor 492 Facility of manumission ........ 492-493 (2) Do not fit the rules of English law 493-496 Public law 493 Public duties 493 Protected and punished by the criminal law .... 494 Modes of getting freedom 494 Private law 494 Liberty and the theory of seisin 494-495 Relativity of servitude 495 Results of this theory 495 Privileged position of the villein in procedure .... 495-496 (3) Do not fit the leaning of the royal lawyers in favour of liberty . 496-500 Legal theories 496-497 Procedure in questions of status 497-498 Status of children . 499 Prescription 499 Summary 500 Changes in the social and agricultural system 500 Legislation in favour of lords 500 Ineffective ............ 500-501 Gradual disappearance of the status 501 Still survived in a decadent condition 501 Hard lot of surviving villeins 501-502 Why it survived 502 (i) The status valuable for purposes of oppression and chicane . . 502-505 Illustrations 503-504 (2) The status might be valuable to the lord 505-507 The villein who rose in life 505-506 Payments for enfranchisement 506 Elizabeth's manumissions 506-507 Final extinction 507-508 Note on the terms " Regardant " and " In Gross " as applied to villeins 509-510 4. The Infant 510-520 (i) The age of majority 510-511 The general rule 510 Other ages for other purposes 510-51 1 XXX CONTENTS PAGE (2) Guardianship 511-513 No general rules as to guardianship 511 Various guardians for various purposes 511-512 The old and the new view of guardianship .... 512 Inadequate machinery of the common law .... 512-513 (3) The capacity of the infant 513-520 Difficulty when there is no adequate theory of guardianship . 513 Maintenance of the status quo 513-514 Demurrer of the parol 514 Long life of this conception 514 Compared with France 514 Modifications of the theory 514 Bracton 514-515 Applies chiefly to inherited rights and real actions ... 515 But applied to some personal actions in this period . . . 515-516 The infant has proprietary capacity 516 He is in some cases allowed to be made liable .... 516-517 In some cases allowed to act 517 But could disaffirm on majority 517 Evasion of this rule 517 The Guardian ad litem — common recoveries .... 517-518 Letters under the Privy Seal 518 Private Acts of Parliament 518 The infant's contracts 518-519 Could disaffirm on majority 519 Modifications 519 The " next friend " 519-520 Instead of a law of guardianship the capacity of the infant is defined 520 §5. The Married Woman 520-533 Difficulty of the problem of the married woman 520-521 Diverse solutions 521 Two systems recognized in Europe 521-522 But the division not very clear 522 Twelfth and early thirteenth centuries 522-524 The wife's land 522-523 The wife's chattels 523 The latter part of the thirteenth century 524 Community rejected — reasons 524 (i) The common law loses sight of the wife's right to chattels on her husband's death 524 (2) The common law makes the law of the nobles the law for all 524-525 (i) The wife's property 525-527 Freehold 525-526 Chattels 526-527 Paraphernalia 527 Choses in action 527 The Chattel real 527 (ii) The wife's contracts 528-530 No capacity 528 But can act as her husband's agent .... 528 Analogy of the monk 528-529 The rule of agency established 529 Fineux, C.J 529 Manby v. Scott' ........ 529 Agency by necessity 530 (iii) Criminal and civil liability 530-532 The wife's crimes 530 Idea of the husband's coercion 530-531 The wife's torts 531 Consequences of her proprietary disabilities . . 531 CONTENTS XXXI PAGE Ante-nuptial torts and debts 531 Post-nuptial torts 531-532 Distinction between post-nuptial torts and post-nuptial debts 532 Rigidity of the common law rules 532-533 Need for equitable rules 533 General tendency of these rules 533 CHAPTER V Succession to Chattels Peculiarities of this branch of the law § I. The Last Will of a will Intestacy in the Middle Ages Canon Law and Common Law . The making, revocation, and interpretation Eleventh and twelfth century wills The will with executors Testamentum and Ultima Voluntas Verbal or nuncupative wills . Variety of forms of written wills . Proof of the nuncupative will A will always revocable Modes of revocation ... The interpretation of the will The capacity to make a will Lyndwood The villein The married woman . Common law and canon law . Lyndwood .... Wills made by married women Victory of the common law . Fineux, C.J The infant Age for making a will fixed by canon law Some clauses found in the wills of this period Usual clauses .... Wills and the chantries Charitable bequests The specific legacies . Legacies of books Clauses relating to the executor . Importance of the executor . Powers conferred on him Extensive results achieved by the testator through him The human side of these wills § 2. Restrictions on Testation and Intestate Succession The rights of wife and children The writ de rationabili parte bonorum .... The evidence for the older scheme .... Wills Survivals It disappears in the South of England so far as it imposes restrictions on testation The reasons for the disappearance of the older scheme Want of evidence The meeting-place of lay and ecclesiastical jurisdictions No fixed rules in either common or canon law VOL. lll.—C. 534-535 535-550 535-536 536 536-541 536 536-537 537 537-538 538-539 539-540 540 540 540-541 541-545 541 542 542-544 542-543 543 543 543-544 544 544-545 545 545-550 545 545-546 546 546-547 546-547 547-548 548 548 548-549 549-550 550-563 550 550 551-554 551-552 552 552-554 554-556 554 554 554-555 xxxii CONTENTS PAGE The common law and the married woman .... 555 Effect on the old scheme . . . . • . . . 555 The common law and the children 555-556 Analogies from the land law 555 No court to superintend the administration of their shares . 555-556 The growth of the modern law 556-563 The administrator 556 No adequate control 556 Perkins 556-557 The Reformation 557 Antagonism of the common law 558 The case of Hughes v. Hughes 558-559 It causes a legislative change 559 The Bill of 1668 559-560 The Statute of Distribution . 560 Objects of the Statute 560 The effect of the Statute . 560-562 Survivals from the older law 562-563 §3. The Representation of the Deceased 563-595 Origins 563-572 (i) The executor 563-566 Executor and hceres 563 The •♦ Salman " 563-564 Becomes the testamentary executor 564 Comparison with his position abroad 565 Testamentary executor and Salman 565 Supervisors and coadjutors 566 Joint executors 566 The executor's title to the goods 566 (ii) The administrator 566-571 Swinburn 566 Special and limited grants 567 His position before 1357 567-568 The ordinary 568 The ordinary's delegate 568 His position after 1357 568-569 31 Edward III. st. i c. 11 569 Survival of older ideas 569 Devolution of the office . . . . . . . . 569 Title to the property 569 Graysbrook v. Fox 570 Hewson v. Shelley 571 (iii) The Executor de son tort 57^-572 Definition 571 Why so-called 571 His position 571-572 His position in harmony with common law principles . . 572 In harmony with principles of ecclesiastical law . . • 572 What will make a man such an executor 572 The mode in which and the extent to which executors and administra- tors have become the representatives of the deceased . . 572-595 Executor and heir 572-573 Bracton 573 Actions by and against executors in the royal courts . . . 573-574 New division of functions 574 Effect on the Ordinary and the administrator .... 574 (i) Restrictions on liability and rights of the heir . . . 574-576 TheY.BB 574-575 Causes 575 Inconveniences 575-576 (ii) The extent of the liability of the executor .... 576-583 CONTENTS xxxiii PAGE Actio personalis moritur cum persona .... 576 History of the maxim 576-578 Does not appear in the Y.BB 576 Was Coke its inventor ? 576 Bracton 577 Application to assumpsit 577*578 To Trespass and Case 578 Why principally confined to actions in tort . . 578 In thirteenth century applied to nearly all personal actions 578-579 Sherrington's Case 579 The principle in the Y.BB 579-580 Supersession of detinue by trover 580-581 Hambley v. Trott 581 Assumpsit an alternative remedy 581 Phillips V. Homfray 582 A reversion to the mediaeval common law .... 582 Inconvenience of the law 582 Mitigated in practice by testamentary directions . . 582-583 (iii) The right of the executor to the estate of the deceased . . 583-585 Chattels 583-584 Choses in action 584 Early modification of '• actio personalis," etc . . . 584 Reasons 584 13 Edward I. st. i c. 23 584 4 Edward III. c. 7 584 Extensions 584-585 The position of the representative at common law and in the Ecclesias- tical Courts 585-595 (i) At common law , . 585-591 Point of view of the common law 585 The fundamental principle 586 The sanction of personal liability 586 The order in which debts must be paid 586-587 Preference 587 Powers to trade 587-588 Debts due from the deceased to the representative . . . 588 Retainer — allowed even to a sole executor .... 588-589 Debts due from the representative to the deceased . . . 589 Extinguishment 589 Liability " de bonis propriis " 589-590 Inconveniences of the common law rules 590-591 Cause of these inconveniences 591 (ii) In the Ecclesiastical Courts 591-595 Historical position of these rules 591 The inventory 591-592 Executor treated as a trustee 592 His powers 592 Account 593 Illustration 593-594 Decay of the jurisdiction of the ecclesiastical courts . . . 594 Chancery 594-595 CHAPTER VI Procedure and Pleading Fundamental changes in this period 596 Permanence of the mediaeval principles 597 Divergence of criminal and civil procedure 597 § I. The Criminal Law 597-^23 Process 597-607 xxxiv CONTENTS PAGE (i) The arrest of persons not yet indicted 598-604 (i) Twelfth-fourteenth centuries — communal action . . . 598-599 (ii) Fourteenth-sixteenth centuries 599-601 The ordinary citizens and the official 599 Growing precision in the law 599-600 The constable 600 More liberal construction of powers of officials . . . 601 Obscurity of the law 601 (iii) Late sixteenth century 601-604 Increased power of officials 602 Hale 602-603 The constable and the private person 603-604 (2) The arrest of persons who have been indicted .... 604 The Sheriff's powers and immunities 604 (3) Process against persons evading arrest 604-607 Outlawry 604-605 Verbal accuracy in the process 605 Writs of error 605-606 Treason 606 Extension to trespass in a modified form 606-607 Procedure and Pleading 607-623 The normal procedure 607 Other forms of procedure 607 (i) Exceptional forms of procedure 607-611 The criminal caught in the act 608 The appeal 608-609 Arraignment on an appeal which failed . . . 6og Its influence on the indictment 609 Other exceptional modes of procedure 610 Arraignment on a jury's finding in a civil action . . 610-611 Presentment of a coroner's inquest .... 611 (2) The normal procedure of indictment 611-620 The old conception of a trial 612 Adapted to the jury 612-613 (i) The differences between the new and the old procedure . 613-615 The jury is not a mechanical test 613 The jury do not decide matters of law .... 613-614 Special pleas 614-615 (ii) Resemblances between the new and the old procedure . 615-620 Pleading adheres to the old oral forms .... 615-616 Question submitted to jury as to one of the older tests . 616 The formality of the indictment 616 (a) Illustrations of this 617-618 (b) Reasons for this 618-619 {c) Effects — bad and good 619-620 (3) The peculiarities of English criminal procedure . . . 620-623 The English and the continental development . . . 620-621 Accusatory not inquisitorial 621 An action between parties 622 Due to survival of old ideas . . . . . . 622 Its defects 623 Future history 623 §2. The Civil Law 623-656 Process 623-627 Its characteristics — slowness and technicality .... 623-624 Real actions 624-625 Personal actions 625 Impossible to avoid mistakes 625-626 Bad effect of these rules .' 626 Trespass vi et armis 626-627 Procedure and Pleading '. 627-656 CONTENTS XXXV (i) The origins and development of the new system The common law system of pleading . Why was this peculiar system developed ? Old idea of trial adapted to jury system The varieties of pleas Bracton and exceptiones .... The old rules and the new exceptiones Roman rules which survived Effect of cessation of Roman influence (i) Adaptation of new ideas of pleading to jury system Possible to submit complicated issues to the jury Rules as to way they must be submitted . Statements must be material, single, and certain No argumentative pleading .... Negative pregnant Double pleas — Protestations .... No departures in pleading (ii) Characteristics of the older system of pleading Oral Rules adapted to this system .... Its strong point — latitude allowed This necessitated by absence of law of evidence Illustrations of these points .... Colour and demurrer to evidence (2) The introduction of written pleadings .... The new system Large effects of the change (i) The change to written pleadings .... Series of small changes Old and new system intimately related (a) The beginnings of the change Growth in technical strictness Coke and Hale Change in mode of recording pleas . Reeves's summary Practice of leaving a note of the plea with the pro thonotary Disapproved by the judges Litigants appearing in person . Helped by the prothonotaries or their clerks Their clerks employed as attornies . First mention of " paper " pleadings in this nection Views of the court (&) Development of " paper " pleadings Growth of law of evidence Takes away old objections to these pleadings Example of the Chancery and Star Chamber Growth of complexity — the special pleader Attornies of the parties oust the prothonotaries Modern system reached . Survivals of the older practice (ii) The effects of these changes .... Effect on the mechanism of legal institutions Effect on the law report .... Effect on the law Conclusion clerks PAGE 627-639 627-628 628 628-629 629-630 630 630-631 631-632 632-633 633-634 633 633 633 633-634 634 634 634 634-639 634 635 635 635-636 636-638 638-639 639-656 639-640 640 640-653 640 640-641 641-648 641 641-642 642-643 643-644 644-645 645 645 645-646 646 646-647 647-648 648-653 648-649 649-650 650 650-651 651-653 653 653 653-656 653-654 654-655 655-656 656-658 APPENDIX I. Specimens of original writs from the Register . 659-664 (3) (4) xxxvi CONTENTS PAGE A. Real Actions — (i) Writs of Entry 659 (2) Writs of Formedon 659-660 Mesne 660 Customs and Services 660 (5) De scutagio habendo 660 (6) Cessavit 660 (7) Quod Permittat 660 (8) Cui in Vita 661 (9) Ayel, Besaiel, and Cosinage 661 (10) Dower unde nihil habet 661 (11) Quare impedit 661 (12) Little writ of right 661 (13) Monstraverunt 661 (14) Quare ejecit infra terminum 662 (15) Ejectio firmae 662 (16) De nativo habendo 662 (17) De libertate probanda 662 B. Personal Actions — (i) Debt 662 (2) Detinue 662 h) Covenant 663 (4) Account 663 (5) Trespass to the person 663 (6) Trespass to land and goods 663 {7) Trespass on the case 663-664 (8) Assumpsit (misfeasance) 664 (9) Assumpsit (non-feasance) 664 n. A manorial Extent 664-666 III. Early Conveyances (i) The Land Book 666-667 (2) The Laen 667 (3) Writ form of conveyance 667 (4) Transition between Anglo-Saxon and Anglo-Norman forms of conveyance 667-668 (5| Indenture form of conveyance 668-669 (6) Deed poll form of conveyance 669 (7) Fines 670 IV. Wills (i) Tenth century 670-671 (2) Fourteenth century 671 (3) Fifteenth century , . 672 V. Statutes Merchant and Staple . 672-673 VI. Grants of Wardship and Marriage 674 VII. The Law Terms and the Dies in Banco, or Return Days . . . 674-675 VIII. Some criticisms on the decision of the House of Lords in the case of The Admiralty Commissioners v. S.S. Amerika .... 676-677 Index 679-695 LIST OF CASES PAGE Abbot of Hulme's Case . . 484, 485 Abbot of Strata Marcella, Case of . 169 Abbots Ripton v. St. John . . 210 Abram v. Cunningham . . . 570 Ackroyd v. Smith . . . .156 Admiralty Commissioners v. S.S. Amerika . . 335, 336, 676-677 Agars V. Lisle .... 286 Alden's Case 265 Angus V. Clifford . . . -375 Anthony Ashley's Case . . . 601 Applegarth v. Sergeantson . . 439 Armstrong's Case .... 606 Arnold v. Jefferson .... 347 Atkinson and Horsell's Contract, m 94 72 72 Attorney-General v. Duke of Leeds Attorney-General v. Sands Austerberry v. Corporation of Old- ham 164 B Baily v. Birtles . . . .581 Bainbridge v. Postmaster-General . 388 Baker v. Bolton 330, 333, 334, 335, 676, 677 Balme v. Hutton .... 323 Banister v. Benjamin . . . 649 Banks V. Sutton .... 196 Barretry, Case of . . . . 397 Basset's Case 515 Basset v. Corporation of Torington 489 Beauchamp, in re . . . .531 Beauchamp v. Croft . . 409 Beddall v. Maitland . . . 280 Bernina, the 677 Bettisworth's Case .... 224 Beverley's Case .... 516 Bevil's Case 99 Bibithie's Case . . . 308, 310 Birkenhead Railway Company v. Pilcher 519 Birt V. Rothwell .... 643 Bishop V. Viscountess Montague 286, 287 Bishop of Winchester v. Knight . 268 Blackamore's Case .... 653 Blackborough v. Davis Blake v. Lanyon Blount's Case Bourne v. Keane Bovey v. Castleman Brediman's Case Brett v. Rigden Brewster v. Kitchell Britton v. Gradon Brown V. Hancock Bruistone v. Baker Buckler's Case Burgess v. Wheate Burton v. Eyre Butler and Baker's Case Butler V. Crouch Butts V. Penny Calvin's Case . 56, 290, 373, Carter v. Abbot of Malmesbury Carter v. Crawley . 558, 560, Casborne v. Scarfe . Cayle's Case .... Chamberlain v. Williamson Chawner v. Bowes . Chesterfield v. Harris Chudleigh's Case . Clapham v. Clapham Clark v. General Omnibus Co. Clark v. Thomson . Clarke v. Clarke Clere v. Brooke . . 178 Clowes V. Hughes . Cochrane v. Moore . Coggs V. Bernard . . 341 Colls V. Home and Colonial Stores . Colthirst V. Bejushin Combe's Case . Conolly V. Vernon . Constable's Case Cooke V. Danvers . Cooper's Case Cooper, in the goods of * Cooper V. Macdonald Cooper V. Witham . Corbet's (Miles) Case PAGE 561, 562 . 677 517, 518 . 677 . 446 100 . 108 . 164 . 630 . 418 . 394 . 224 72, 197 . 650 . 196 506, 508 . 507 461, 464 • 504 561, 562 188, 196 . 368 . 584 . 418 • 171 . 158 196, 197 . 335 . 452 560 183 286 354 449 156 253 268 268 65 268 312 544 i8g 334 144 182, 345: XXXVlll LIST OF CASES PAGE Corbet's Case 639 Core's Case . . 35i. 357. 4i7. 427 Corpus Christi College's Case . 486 Cotton's Case 87 Coulter's Case . . . -572 Cox V. Paxton 333 Coxe V. Wirrall . . . .407 Cranmer's Case . . . . 33° Cromwel's Case . . .84, ig6 Cromwell's Case . . . .409 CuUyer v. Knyvett . . . .212 Currie v. Misa .... 413 D Dalton V. FitzGerald Davidson v. lllidge Dawes v. Coveneigh Dean's Case . Dean of Exeter v. Trewinnard Debenham v, Mellon Dee V. Bacon . Derry v. Peek Despencers, Case of the Dockeray's Case Doight's Case Donald v. Suckling Dore V. Wilkinson . Dormer's Case Dowman's Case Drake, ex pte. Drury's Case . Dufour V. Pereira . Duke of Suffolk's Case Dunraven v. Llewellyn Dyke v. Kendall . 94 . 588 333. 334 • 393 • 587 • 530 . 216 . 408 . 290 . 358 . 435 . 322 . 286 . 119 614, 650 . 322 . 65 . 540 . 557 . 144 . 197 Eager v. Furnivall Eden v. Harris Edgcomb v. Dee . Edwards v. Burre . Edwards v. Freeman Edwick V. Hawkes Egles V. Vale . Ellis V. Ellis . Etriche v. An Officer of the Revenue Evelyn v. Evelyn .... 188 233 445 443 562 280 447 570 286 562 Farley v. Bonham . Fawcet v. Charter . Feather v. the Queen Fermor's Case Finlay v. Chirney . Fleir v. Southcot . Flud V. Rumcey Ford V. Hoskins Foreacre v. Fraunceys Forger v. Sales . 197 • 452 . 466 . 244 578, 579 • 571 . 589 . 211 210, 211, 501 . . 651 Forster v. Crachroode Foster v. Bates Fotherbie's Case Fouke V. Lewen Fouldes V. Willoughby Foxwell V. Van Grutten Frederick v. Holt . Freeman v. Bernard PAGE 569 287 109 567 447 Gale V. Noble Gate ward's Case . George v. Chambers Gerberge, Case of . Gibson and Johnson v. Hunter Goodman v. Mayor of Saltash Gower v. Capper Gray v. Briscoe Graysbrook v. Fox Green v. Goddard Greenwood, in re Greneley's Case Grenelife v. W. Griesley's Case Gylbert v. Fletcher 144. . 268 150, 170 . 285 . 291 • 639 . 171 • 445 . . . 163 567. 568, 570, 57a . 279 . 197 . 128 163, 230 391 518 H Hall V. Wright Hambley v. Trott . Hamington and Ryder's Hammersley v. de Biel Hampson v. Sydenham Harris v. Bervoir . Hartfoot v. Jones . Harvey v. Brydges . Hatchard v. Meg6 . Hayward v. Davenport Heming v. Brabason Heming v. Stoke Poges Henry Ferrers' Case Hensloe's Case Heskett v. Lee Hewer v. Bartholemew Hewson v. Shelley . Heydon's Case Heydon and Smith's Case Heyron v. Proute . Higgins v. Andrews Higgins V. Betts Higgins V. Butcher . Hills V. Mills . Holden v. Smallbrooke Holford V. Piatt Holmes's Case Holmes v. Seller . Holt V. Frederick . Hope V. Hope Howlet V. Osborne . Hudson V. Lee Hughes V. Hughes . Case 579 . 581 . 163 540 ■ 545 . 427 . 286 . 280 . 579 . 447 . 87 Golf Club . 280 . 617 . . 561 . . 518 • 427 567. 570, 571 . 209 . . 346 . 650 . 280 . . 156 I, 332, 334. 676 . 567 . . 96 . 575 . 370 . . 165 . 562 . 189 . 449 . 329 558. 559. 594 33 LIST OF CASES XXXIX PAGE PAGE Hulbert v. Watts . . . 518 Maylard v. K ester . 444 Hunt V. Burn . , . . 268 Melwich v. Luter . . 2og Hussey v. Cooke . , , . 400 Mennie v. Blake . . 287 Hutchings v. Strode • . 212 Mentney v. Petty . Mersey Docks Trustees v. Gibbs 561 . 388 I Merttens v. Hill . Middlemore v. Goodale . . 268 163 Inhabitants of Whitby v .York 207, 211 Middleton v. Spicer 72 Isaack v. Clarke . . 327 Midland Insurance Co. v. Smith ^^^ Israel v. Etheridge . . 286 Mildmay's Case ... 86, 117 Mingay v. Hammond 648 J Mires v. Solebay . 286 James v. Warren . Jesson V. Wright . • . 530 . 109 Mitchel V. Reynolds Montague v. Benedict . Moore v. Browne . 419 28 Jesus College v. Gibbs . John at Hill, Case of . John Imperial, Case of . John de Northampton, Case of . 87 . 291 . 291 390, 409 Mortimer, Roger, Case of Moseley v. Fosset . Mountford v. Catesby Mouse's Case .... Moyle Finch's Case 290 448 163 377 244 John St. Albans' Case Johns V. Rowe • . 518 553. 561 Johnson v. Clark • 245. 528 N K Nedham's Case .... 589 Kelly V. Metropolitan Railway ( :o. . 429 Netheway v. George 504 Kendal v. Fox . 118 Newport v. Mildmay 518 Kenicot V. Bogan . . 286 Newton v. Harland 280 Kent V. Seynt John , . 211 Nichols V. More 447 Keppel V. Bailey . . 164 Nichols V. Raynberd 445 Ketsey's Case 517. 519 North's Case 387 L Norwood V. Read . . 445, 45 1.452 Lane v. Cotton . 388 0 Le Mason v. Dixon 578, 580 Ocle, William, Case of . 128 Leicester Town, Case of . 265 Ognel's Case 561 Levanne's Case . 558 Osborn v. Gillett . . 334, 33 5.336 Lewes v. Ridge . 163 Oxenham v. Clapp .... 572 Ley, Viscount, v. Stephe IS . 409 Lincoln, Earl of, v. Rouj jhton . 409 P Lincoln v. Topliff . . 427 Lincoln College's Case . 230 Pakenham's Case .... 162 Lisle V. Grey . . 109 Palmer v. Allicock .... 558 L.S.W.R. V. Gomm . 164 Parker v. Alder .... 374 Long's Case . 617, 619 Partridge v. Strange 92 Lord V. Thornton . • 394 Patrick v. Stubbs .... 147 Lumley v. Gye . 677 Peachy v. Duke of Somerset . Pearne v. Lisle .... 72 508 M Pecke V. Redman .... Pelham's Case .... 445 119 Mackalley's Case . 602, 614, 619 Perrin v. Blake ... 10 3. iio Maleverer v. Spinke . 123 Perry v. Clissold .... 93 Manby v. Scott . 529, 530 Peters v. Hey ward . . . 322 Markal's Case 515. 517 Peters v. Leeder .... 572 Markham v. Cobb . 332, 333. 334 Pett's Case 562 Martyn v. Williams . 165 Phillips V. Homfray 582 Mary Portington's Case "7. 119, 518 Pigg V. Caley .... 508 Maskall and Goldfinch's Contract, | Piggot's Case . . . .51 f. 567 inre . . . 261 Pimb's Case 70 Master v. Miller . . • 333 Pinchon's Case . . 444, 452 J. 567 Matravers, Case of . . . 290 Plessington's Case .... 130 Maundrell v. Maundrell . . • 197 Plummer v. Whitchcroft 387 xl LIST OF CASES Portland, Duke of, v. Hill Postnati, Case of the Powlter's Case Prince's Case . Proud V. Turner . Pudsey v. Newsam 51 PAGE 268 461 302 562 163 R Raleigh v. Goschen Rangeley v. Midland Rly Ratcliff's Case Ravensworth, Adam de, Ray V. Pung . Read and Redman's Case Reeves v. Capper Rege Inconsulto, Case of Reniger v. Fogossa R. V. Almon . R. V. Berchet . R. V. Charnock R. V. Cooke . R. V. Daily Mail R. V. Davies . R. V. Johnson . R. V. Prince . R. V. Raynes . R. V. Rose R. V. Rosewell R. V. Tolson . R. V. Townley R. V. Tucker . Rhodes v. Swithenbank Riches v. Bridges . Robinson v. Duleep Singh Roddy V. Fitz Gerald Ross V. Hill . Rowbotham v, Wilson Rowlet's Case Rushden's Case Russel and Prat's Case Russell's Case Ryle's Case . Shipwick V. Blanchard . Shopland v. Ryoler Shrewsbury, Earl of, Case of the Six Carpenters' Case Skinner v. Gunton . . 388 Co. . 156 176, 5"» 557 Case of 390, 409 . 197 . 585 • 365 . 460 639, 648 392, 394 . 615 . 615 . 633 . 393 • 393 . 606 . 374 . 567 • 615 . 618 • 374 . 368 . 618 . 520 . 449 46, 148, 149 109 344 165 119 92 584 649 618 Slade's Case . 444, 445, 446, 45 Slawney's Case Smith V. Adams Smith V. Browne Smith V. Colgay Smith V. Cranshaw Smith V. Selwyn Smith V. Smith Somerton's Case . 431, Sommersett's Case . 498, Southcote V. Bennet Spencer's Case Spicer v Martin Stanley v. Powell Stan tons. Case of the Stapleton's Case Stapleton v. Sherwood Stavern v. Bouynton Stephenson v. Hill . Stokes V. Porter Stoneham v. Stoneham Stonehouse v. Bodvil Story V. Lord Windsor Stowel V. Lord Zouch 240, 241, 243, 244 PAGE 286 66 28 447 404 t. 452 558 197 507 584 401 676 • 515 432, 433, 434 499. 508, 509 343. 344. 346 162 102 382 242 518 552 649 268 572 354 422 244 Strangborough and Warner's Stroud's Case . Stubbings v. Rotheram Swayne's Case Syer's Case . Symons v. Darknoll 333 380, Case 445 392 451 168 310 448 576. 578, 119 527 Salter v. Butler . . . .286 Sanchar's Case . . . .310 Sanders v. Easterby . . -452 Saunders and Browne's Case . . 288 Scammel v. Wilkinson . . . 544 Scott, in re 562 Scott V. Tyler 586 Searle v. Williams .... 301 Segrave's Case .... 290 Serle v. Rosse . . . .451 Seymor's Case .... 230 Shannon v. Shannon . . .285 Sharington v. Strotton . . 419, 441 Shelley's Case 99, 107, 108, 109, no, III, 134, 242 Sherrington's Case . . 579, 580 Ship Money, Case of , , . 388 Talbot V. Frere Taltarum's Case Tasker v. Tasker . Tennant v. Goldwin Tey'sCase . Tharpe v. Stallward Thomas v. Quatermaine . Thomas v. Sylvester Thomas Buckler's Case . Throckmerton v. Tracy . Thorogood v. Bryan Tilford V. French . Tinkler v. Poole Tooker v. Loane Townsend, Lord, v. Hughes Trenchard v. Hoskins Tufton and Ashley's Case Twycross v. Grant . Tyrringhams Case . . 143, 1481 Vachell v. Jeffreys Vaux v. Brooke 588 137 544 168 236 569 429 28 617 224, 650 677 447 286 558 409 163 653 584 150 562 6x8 LIST OF CASES xli Vavassour v. Chadworth . Vivion V. St. Abyn Vynior's Case . W PAGE 594 649 540 Walker v. Woolaston . . . 567 Walpole V. Orford .... 540 Walsh V. Walsh .... 562 Wankford v. Wankford . . . 589 Warbrooke v. Griffin . . . 447 Warrick v. Queen's College, Oxford 144 Watt V. Crook .... 562 Weekly v. Wildman . . . 171 Wells V. Abrahams . . • 333 Weyland, Thomas, Case of . 104, 240 Wheatley v. Low . . . 449, 450 Wheler v. Huchynden . . . 436 Wickals V. Johns .... 445 Wilkin V. Wilkin .... 447 Wilkinson v. Coverdale . . . 449 Williams v. Thomas . 21, 22, 193 PAGE Williamson v. Norris . . .374 Willion V. Berkeley 18, 68, 108, 113, 120, 224, 253, 467 Winkfield, The . Wiseman v. Cotton Withers v. Iseham . Woodward v. Chichester Woodward v. Darcy Wotton V. Brinth . Wrotesley v. Adams Wyat Wyld's Case York, Mayor of, v. Towne Young's Case .... Young and Ashburnham's Case Young V. Englefield Zouch and Michel's Case 337. 345 260 170 590 589 433 132, 224 . 150 450 602 446 653 517 LIST OF STATUTES PAGE PAGE Magna Carta 6, 37, 41, 46, 59, 63, 64, 13] Edward I. St. i c. 16 . 65 192, 260, 329, 461, ,, ,. „ „ c. 18 • 131 464, 505, 535, 550 ,, ,, „ „ c. 19 . 568 20 Henry III. c. 4 • 147 .. ,, „ „ c. 21 . 16 ,, „ c. 6 . 17,63 „ „ „ „ c. 23 . 584 ,, „ c. 7 . 63 ,, ,, „ „ c. 24 II, 19 43 „ c. 3 . 26,38 ,, ,, „ „ c. 25 20, 100, 152, 52 „ cc. I, 2 . . 282 153 », „ c. 3 . 61, 282 ,, ,, „ „ c. 32 87, 117, 246 ,, „ cc. 4, 15 . . 282 ,, „ „ „ c. 34 . 316 ,, „ c. 16 . . 61 ,. ,, „ „ c. 35 • 17 „ „ c. 17. . 66 .» „ „ „ c. 39 • 392 ., „ C. 21 . . . 282 ,. ,, „ „ c. 40 • 515 ,, „ c. 25. . . 315 „ ,, „ ^^ „ c. 46 . 147 ,, „ c. 29. . . 13 ,, ,, „ St. 3 • 131 3 Edward I. St. i c. 13 . 316, 397 ,, ,, „ St. 4 c. I . 410 ., „ „ c. 15 . . 366 18 ,, „ C. I 68, 80, 87, ,, ,, „ „ C. 22 . . 64 160, 176 ,, .1 „ „ c. 36 . . 67 20 ,, „ St. 2 . 122 ,, ), „ „ c. 39 . 10 21 ,, ,, ,, . 312 », ,, „ C. 21 . . • 63 27 ,, „ St. I c. I . 241 ,, ,, „ c. 34 . . 409 28 ,, „ St. 3 c. 10 . 402 >. ,, „ c. 47. . . 515 „ ,, „ „ C. II . 397, 398 ,, „ „ C. 48 . . . 519 33 „ „ St. 2 398, 403 4 „ M St. 3c. 5 . • 297 34 ,, „ St. 3 . 87 ,, ,. „ „ c. 6 . . 160 9 Edward II. St. i c. 4 . 410 6 .1 . • 532 I Edward III. St. i c. 11 . 410 ,, ., „ c. 2. . . 515 .. „ cc. 12, I 3 . 84 „ ,» „ c. 3 . . 193 4 c. 7 . . 584 ,, ,, „ c. 4 . . 16 .. C. II . 397 ,, ,» „ c. 5 . 63 121, 122 5 c. 10 . • 399 ., ,, „ c. 6 . • 193 14 St. I c. 4 . 314 „ „ „ c. 7 . . 19 ,, „ c. 9 . 387 ,, ,, „ c. 9 . . 312 .. St. 4 c. 2 . . 141 .. .. „ c. ri I 17, 214 246, 272 20 cc. 4, 5, 6 . 398 7 >, 1, . 87 25 St. 3c. 4 . 296, 297 12 „ ,, . . 419 St. 5 c. 2 . 288 13 », „ St. I c. I 17, 18 , 68, 112, .» ,. c. 4 . 608 "3. 187, 373. 397. 403 „ c. 5 ,. c. 7 . . 565 . . 584 „ .. „ „ c. 2 . . 284 .. , „ C. II . 67 ,, ,, „ „ c. 3 "7. 121, 193, 246, 526 ». „ c. 18 „ c. 21 20, 500 . . 387 " ,» „ „ c. 4 26. 117. 193. 246 27 , St. 2 c. 9 „ c. 19 . 132 . 383, 387 .» », ,, », c. 5 25 100, 141 28 c. 3 . . 608 ,1 „ „ „ c. 6 10 31 „ St. I c. II . 565-568 ., ,, „ „ c. 14 . . 122 34 c. 8 . . 399 ,, „ „ „ c. 15 . . 519 »i „ c. 15 . . 84 xl iii xliv LIST OF STATUTES PAGE PAGE 34 Edward III. c. i6 . 243 6 Edward VI. c. 11 . 72 38 „ c. 12 . 399 5 Elizabeth c. 9 . 649 42 „ c. 3 . . 608 8 „ c. 4 . 301, 332 I Richard II. c. 4 . 398 13 1. c- 10 . . 487 »> ». c. 6 . 204, 500 18 „ c. 7 300, 301, 332 2 „ St. I c. 5 . .409 27 M c. 5 . 650 St. 2 c. 3 . .305 M C. 13 . . 482 9 „ c. 2 . 500 39 .» cc- 9, 15 . 301 12 „ C. II . 409 43 , 1. c. 8 . 557 15 » c. 5 . . 87 I Jac. I. c. 8 . 301 4 Henry IV. c. 18 . 392 „ „ c. 25 • 307 5 » c. 8 . 393 3 » c. 13 . 393 c. 14 . 236, 237 21 „ c. 6 . 300 I Henry V. c. 3 . . 400 „ « c. 13 . 650 2 Henry VI. c. 10 . . 387 ,, » c. 28 . 307 8 „ eg . 27 16 Car. I. c. 6 . . . 673 c. 10 . 404 12 Car. II. c. 24 44, 45, 51, 53, 56, 61, „ „ c. 12 . . . 368 65-67. 273 II n c. 5 . 122 22, 23 „ c. 10 . . 560-562 23 „ c. I . . . 387 29 M c. 3 . . 124, 561 I Edward IV. c. i . . 467 I Jac. II. c. 17 . 552, 561, 562 I Richard III. c. 5 . . . 468 3 William and Mary c. 9 . .302 c. 7 . 244 4 »» i» ^* 9 . -300 4 Henry VII. c. 24 . 120, 244 4.5 » .. c. 2 . .552 II » c. I . . . 468 6 „ „ c. 10 . . 273 12 „ c. 7 . 301, 315 7, 8 William III. c. 3 . . . 615 21 „ c. 7 . . 365 II ,1 c. 38 • 552 3 Henry VIII. c. 14 . 406 I Anne St. 2 c. 9 . 302, 310 4 » c. 2 . 299 2, 3 m c. 5 . 552 21 „ c. 2 . . 306 4i 5 » c. 16 • . . 578 c. 5 . . 569 5 M c. 3 . 100, 234 II ,. c. 7 • 362, 365 II M c. 6 . 300 C. II . 280, 320 II „ c. 31 . . . 363 22 „ c. 14 . . . 306 7 „ c. 18 . 100 23 „ C. I 299. 300, 315 12 „ St. 2 c. 6 . . . 482 II » C. 10 . . 546 4 George I. c. 11 . . 300 II » C. II . 299, 300 6 „ c. 23 . . 300 24 „ c. 5 . 312 9 11 c. 7. . . . 478 25 » c. 3 . 300, 302 II „ c. 18 . . 552 26 „ c. 13 • 70, 305 14 George II. c. 20 . 124 27 „ c. 10 . 196 24 .. c. 48 . . . 673 II » c. 17 . 300 30 II c. 24 . . . 363 11 » c. 19 . . . 306 31 11 c. 14 . . . 269 28 „ C. I . 300 39 George III. c. 85 . . . 365 31 .. c. I . 19, 127 39, 40 „ c. 88 . 72 32 „ C. I . 246, 273 41 » c. 23 . . . 478 II » C. 2 10, 93 1 508 54 » c. 14 . 70 II » c. 3 . 300 59 1. c. 94 . 72 II » c. 9 . 400 7 George IV. c 64 . 310 •1 » C. 12 . . . 306 7. 8 „ c. 28 . 302, 310 II II C. 21 • . . 673 .1 II c. 29 . 363. 367 II ,1 c. 30 . 650 9 11 c. 31 . 70 II » c. 32 . 19 II Geo. IV. and i Will. IV. c. 47. 514 c. 34 . . . 165 II II 1) c. 60 . 72 II II c. 36 . 120 II II 11 c. 70 . 673 33 » c. 20 . 72 I William IV. c. 47 . . . 576 I Edward VI. c. 12 • 195, 300, 305 2,3 » c. 39 . . . 674 2, 3 „ c. 12 . 212 3.4 M c. 42 . 576, 585 c. 33 . 300, 307 c. 74 . . . 269 5»6 „ c. 9 . 300 II II c. 104 . . 576 c. 10 . 300, 302 c. 105 . 197 II „ C. II . 195, 690 II I. c. 106 . 70. 183 LIST OF STATUTES xlv PAGE 4, 5 William IV. c. 23 . . 72 I Victoria c 26 . 124, 540, 541, 545 I, 2 „ 3. 4 M 4' 5 M 8. 9 „ 9. 10 M II, 12 ,, 13. 14 M 15. 16 .» 18, 19 „ 19. 20 „ 22, 23 „ c. 69 . C. 96 . C. 22 . c. 106 . c. 93 . c. 46 . c. 60 . c. 76 . c. 117 . c. 94 . c. 17 . . 72 . 482 . 302 92, 93, 160, 234 • 335 . 310 • 72 . 269 . 482 . 552 . 621 24, 25 Victoria c. 95 c. 100 33.34 36.37 39.40 44.45 47.48 50.51 51.52 53.54 56.57 60, 61 23 66 18 41 71 59 42 29 53 65 PACK . 310 70, 315 70, 71 673 482 72 72 410 87 561 72 565 ERRATUM P. 284, n. 5. For •' withernamio " read ** vetito namio.' BOOK III (1066-1485) THE MEDIi^VAL COMMON LAW {Continued) VOL. III. - I A HISTORY OF ENGLISH LAW PART II THE RULES OF LAW CHAPTER I THE LAND LAW I HAVE already described in outline the general features of the development of the land law during this period. Here I shall trace in somewhat greater detail the history of some of its more important doctrines. All through this period it holds the first place both for political and legal reasons. My arrangement of the subject will be as follows : § i. The Real Actions ; § 2. Free Tenure, Unfree Tenure, and Chattels Real ; § 3. The Free Tenures and their Incidents ; § 4. The Power of Alienation ; § 5. Seisin ; § 6. Estates ; § 7. Incorporeal Things ; § 8. Inherit- ance ; § 9. Curtesy and Dower; § 10. Unfree Tenure ; § ii. The Term of Years; § 12. The Modes and Forms of Conveyance; § 13. Special Customs. § I. The Real Actions In the developed common law a real action was an action in which the specific thing demanded could be recovered ; and, as, in the great majority of cases, it was only certain interests in or incorporeal rights over land,^ which were so recoverable, they could be defined with substantial accuracy by Blackstone as " actions whereby the plaintiff . . . claims title to have any lands or tenements, rents, commons, or other hereditaments, in fee simple, fee tail, or for term of life." ^ Any action, even an action of covenant, in which the land itself was recovered, was classed as a real action ; ^ while certain actions, such as the action of waste, in which both the land and damages could be recovered, were 1 Many incorporeal things, such as offices or corrodies were, from the point of view of remedies, and in some other respects, treated like land, vol. ii 355-357 ; below 97-101, 151-153. 2 Bl. Comm. iii 117-118. 3 For this action of covenant real, whereon fines were usually levied, see Maitland, Collected Papers i 448 ; Forms of Action 358. 4 THE LAND LAW classed as mixed ^ But when Bracton wrote, the common law had not attained this classification of actions ; and the term real action had not developed its modern meaning. Bracton, as Maitland points out,^ " knew too much of Roman law to call an action ' real ' merely because the successful plaintiff will thereby obtain possession of a specific thing. The novel disseisin, for example, is actio personalis ; it may be rei persecutoria, but it is personalis. . . . With him the test is rather the nature of the mesne than the nature of the final process. If the mesne process is against the thing, if e.g. the land is seised into the king's hand, the action is real, but if, as in the assize of novel disseisin, the process is attachment, then the action is personal." But long before the close of the mediaeval period the term " real action " had acquired its modern meaning. Bracton himself uses the term in this sense ; ^ and, when at the close of the thirteenth century, English lawyers ceased to know anything about the terminology and rules of Roman law,^ it was in this sense that they used the term.^ It is in this sense that I use it in this section. The learning of the real actions is the foundation of by far the greater part of the land law of the Middle Ages. The lead- ing divisions of our law of property at the present day — the divisions into realty and personalty, and into land held by free- hold tenure, by copyhold tenure, and for a term of years — can be traced ultimately to the rules which defined the scope of these real actions. Similarly, as we may see from Littleton's book,^ many of the doctrines of the land law, both of the Middle Ages and of the present day, took their shape, in the first instance, from the various real actions which protected many and various rights in the land. In order, therefore, to understand the mediaeval land law it is necessary to approach it from the point of view of the real actions, just as in Roman law it is necessary to approach the conceptions of " dominium ex jure Quritium," " bonitary owner- ship," and "possession" from the point of view of the various remedies which protect them. Moreover, in approaching the subject in this way we are placing ourselves at the point of view of our earliest authorities — Glanvil and Bracton. Littleton, it is true, does not approach the subject from this point of view ; but his treatise was a treatise primarily upon tenures and estates ; and, when he discusses the principles of the law, he assumes a knowledge of the real actions. The doctrines which he discusses cannot be understood without a knowledge of the law of real actions, any more than the doctrines discussed by Gaius and 1 Bl. Comm. iii ii8. ^Collected Papers i 448 ; Forms of Action 370-371 ; cf. vol. ii 261. 3 f. 159b. 4 Vol. ii 287.288. 5 P. and M. ii 568. « Vol. ii 582-588. THE REAL ACTIONS 5 Justinian in the second and third books of their Institutes can be understood without some reference to some of the topics discussed in their fourth books. In dealing with the real actions, I shall, in the first place, describe those by means of which a person could assert his right to the seisin of corporeal hereditaments held by free tenure ; and, in the second place, I shall enumerate some of the more important of the other real actions, or actions real in their nature,^ which protected other rights incident to land-holding. Their enumera- tion will show us the skeleton round which the largest part of the body of the mediaeval land law grew up. Tke Actions by which Rights to Corporeal He7'editanients of Free Tenure were Asserted These actions may be divided into three groups, (i) the writ of right group ; (ii) the assize of novel disseisin ; and (iii) the writs of entry sur disseisin. This division represents the chronological order of development. As in Roman law we see in the Legis Actio Sacramenti the most primitive form of real action, and in the new formulary procedure per sponsionetn and per formulam arbitrariam successive improvements upon the primitive form ; ^ so in English law the writs of right are our oldest form of real action, while the assize of novel disseisin and the writs of entry represent the new improvements effected by royal justice. In both systems the survivals of the older forms mark definite periods of historical development. (i) The writ of right group.^ There are three varieties of the writ of right — the writ of right patent, the praecipe in capite, and the little writ of right. The last named was the writ by means of which the tenant in ancient demesne could recover his land ; and I shall speak of it again when I discuss that tenure.* The writ of right patent was the original form of the writ of right. "It is," says Booth, "the general writ of right;" "and it hath the greatest respect and the most assured judgment." ^ This form of the writ was used when the land was held of a mesne lord. It was directed to the lord of whom the land was held, and ordered him to do full right to his tenant. If the lord waived his right to his court, a special variety of the writ, known as the writ of right " quia dominus remisit curiam," was directed to the sheriff", and proceedings thereon were had in the king's court.^ It was ^ Booth, Real Actions 86, 87, 125. ^Qirard, Droit Romain 327-332. 3 For the forms see vol. i App. V a, b, and c. 4 Vol. ii 378, 578; below 265-266; Booth, Real Actions 116, 117; App. Ia (12). 5 Booth, op. cit. 87, Booth treats separately the writ of right in London ; but, as he says, " it is of the same nature with the writ of right patent, only different as to the place where the lands lie, i.e. concerning lands in London," ibid 117. "Vol. i 178. 6 THE LAND LAW thus essentially a feudal and not a royal plea, so that it is not surprising to find that such pleas were not stopped, as most royal pleas were stopped, by the coming of the Eyre.^ The praecipe in capite directed to the sheriff was the proper writ when the land was held in chief of the king. By it the sheriff was directed to order the tenant to restore to the demandant the land in question, and if he did not so restore it, to summon him to show why he had not done so. The proceedings upon it took place in the king's court. If it be true that originally a writ of right was so called because it ordered a lord to do full right to the demandant, this form of the writ cannot properly be classed as a writ of right. But, as Maitland has pointed out,^ " when possessory actions had been established in the king's court ' right ' was contrasted with * seisin,' and all writs originating proprietary actions for land, including the praecipe in capite, came to be known as writs of right." The praecipe in capite ought only to have been allowed when the land in dispute was held of the king in chief But Henry II., pursuing the policy of attracting to the king's court jurisdiction over all cases concerning land held by free tenure, had extended the scope of the praecipe in capite from the cases where the land was held in chief to cases where it was held of a mesne lord. It was this extension which the Barons effectively checked by the thirty-fourth clause of Magna Carta.^ As the result of this clause a plea begun by the writ praecipe in capite could, even at the last stage of the action, be stopped by showing that the land was not held of the king.^ These writs of right carried with them to the end many marks of their great antiquity. We see a survival of the days when litigants could buy procedural advantages of the crown ^ in the tender of the demi mark. If the tenant tendered this sum at the proper time (what was the proper time was "a great question in law " ^) he could defeat the demandant, if the demandant was not seised in the reign of the king alleged in his count; otherwise the Grand Assize '^ could find for the demandant if his ancestor had been seised at a time more remote.^ We see a survival of the old ^ " The third cry was that no court or count}' court should be holden within the said county during the continuance of the Eyre save by reason of some plea of land, and that by writ of right patent, or for appeals in the county court," Eyre of Kent (S.S.) i 7 ; for this effect of the coming of the Eyre see vol. i 266-267. 2 Collected Papers ii 129 n i ; Forms of Action 318. ^ Vol. i 58-59 ; see McKechnie, Magna Carta (2nd ed.) 346-355 ; Maitland, Forms of Action 317-318. 4 Eyre of Kent (S.S.) ii 86-87 ; cp. Y.B. 20, 21 Ed. I. (R.S.) 72-74. ^ Vol. i 57-58 ; there are some illustrations of this step in the proceedings in Y.B. 5 Ed. II. (S.S.) (1312) 26, 44; it was probably because its object was to buy a pro- cedural advantage that it could not be tendered as against the king, Y.B. 20 Ed. III. (R.S.) i 416. ^ Booth, Real Actions 98. "^ For the Grand Assize see vol. i 327-329. 8 Litt. § 514, " Herle, Justice, said to the Grand Assize after that they were charged upon the mere right, You good men, Reynold [the tenant] gave half a mark THE REAL ACTIONS 7 rule that a defendant must deny the plaintiffs case in every detail with minute accuracy.^ Trial by battle was possible till 1819.''' The tenant need not make use of any pleas open to him : he might submit the whole case to the battle or the Grand Assize — " he can insist that the whole question of better right, involving, as it may, the nicest questions of law, shall be left all in one piece to the knights of the neighbourhood ; if he fears their verdict he can trust to the god of battles ; he can force the demandant to a probatio divina which is as much to be dreaded as any probatio diabolica of the canonists."^ The proceedings decided the question of better right only as between the parties. The mere judgment bound no one else. A stranger was only bound if, being under no disability, he did not claim within a year and a day after execution of the judg- ment.* Success in the writ of right therefore did not depend upon absolute right, but upon majusjus. We shall see that the tenant could not defend himself by setting up 2. jus tertii, through which he did not claim, in order to disprove the demandant's title.^ If the demandant's title was better than the tenant's he would re- cover. At the same time the action is a real action, brought to assert the demandant's right to the land. It is no mere delictual action in which the demandant accuses the tenant of ouster forcible or otherwise. But in this fact that success depends, not upon absolute title, but upon majusjus, we may see one more trait of its ancient origin. It goes back to the time when the chief con- cern of the law was to adjudicate upon a dispute between litigants — when it had not as yet begun to analyse the conceptions of ownership and possession.^ We have seen that Magna Carta secured for lords of tenants their right to try actions begun by writ of right.'' It thus pre- served for centuries this piece of feudal jurisdiction. But, as we have seen, it had come to be of little value to these lords as early as Edward I.'s reign.^ In fact, the procedure was too primitively cumbersome. This was recognized in a register of writs of the to the king for the time, to the intent that if you find that the ancestor of John [the demandant] was not seised in the time that the demandant hath pleaded, you shall inquire no further upon the right; and, for this, you shall tell us whether the ancestor of John was seised in King Henry's time as he hath pleaded or not. ... If Reynold had not tendered the half mark to inquire of the time, etc., then the Grand Assize ought to be charged only to inquire of the mere right, and not of the possession, etc. ; " cp. Y.B. 20, 21 Ed. I. (R.S.) 292. ^ Booth, Real Actions 94, 95 ; vol. ii 106 ; below 629, 630-631. 2 Vol. i 309-310, and App. XXVII. ^ p. and M. ii 63. * Booth, Real Actions loi, '* Judgment after the niise joined binds all strangers that make not their claim within a year and a day : but this is to be after execution ; " Y.B. ir, 12 Ed. III. (R.S.) 306. ' Below 90. ^ Vol. ii 79. ' Above 6. ^ Hengham, Magna c. 3, cited vol. i 59 n. 2 ; for a case of this sort which had been removed into the Bench see Y.B. 6, 7 Ed. II. (S.S.) 67-68. 8 THE LAND LAW early years of Edward I.'s reign ; ^ and in 1338 the court admitted that the writ of right involved too much delay. ^ Newer remedies were invented which met all the ordinary needs of litigants ; and these newer remedies were only available in the royal courts.^ It was a rare case in which recourse to a writ of right was necessary.* Finally it should be noted that the writ of right, in common with the other real actions, suffered from the neglect of the legis- lature to pass statutes of limitation. " Before 1237 claimants had been allowed to go back to a seisin on the day in 1 1 3 5 when Henry I. died ; then they were restricted to the day in 1 1 54 when Henry H. was crowned; in 1275 the boundary was moved for- ward to the coronation of Richard I. in 1 189, and there it remained during the rest of the middle ages." ^ The fact that it remained there so long was the decisive cause of the length of legal memory. Legal memory in the Middle Ages naturally refused to go behind the period of limitation fixed for the writ of right ; but because it went back to this date in the Middle Ages it continued to do so, even after new statutes of limitation were passed.*^ And we shall see that this practice, traceable ultimately to the negligence of the legislature, has had a permanent influence on the law of prescription.^ (ii) The assize of novel disseisin. I have already said something of the origin and purpose of the assize of novel disseisin.^ Unlike the writ of right, which bears upon it the traces of a very primitive antiquity, it was a new royal remedy founded on positive ordinance. It was invented, not to decide which of two litigants had a better right to the property in dispute, but to protect the person who is seised or possessed of property; and not only will the person seised and disseised be restored to his seisin, but the disseisor will be punished.^ " There can be no doubt that this action was suggested by the canonists' actio spoilt, which itself had its origin in the Roman interdict uiide vi. But when once adopted, English law very speedily made it her own. It soon became an exceedingly popular action. The plea rolls of Richard's reign and John's are covered with assizes of novel disseisin, many of which are brought by very humble persons and deal with minute parcels of land." ^^ It was popular because it was both speedy and effective. It will be seen by a 1 H.L.R. iii 215 ; vol. ii App. Vd (14), " quia propter . . . discrimina brevis de recto vitandum ab omnibus consiliariis et justiciariis domini Regis." 2Y.B. 12, 13 Ed. III. (R.S.)98. 3 Y.B. 2, 3 Ed. II. (S.S.) 202 n. I. 4 P. and M. ii 70. « Ibid 81. «Bk. ivPt. I. c. 2. 7 Below 166 ; Bk. iv. Ft. II. c. i § g. ^ Vol. i 275, 329 and App. IIIa ; see Maitland, Forms of Action 321-323. 9 Eyre of Kent (S.S.) iii 138. " P. and M. ii 47. THE REAL ACTIONS 9 reference to the Appendix ^ that the question which the assize was to settle was formulated in the writ which called the assize to- gether ; there need not therefore be any pleadinf^. There could be no vouching to warranty and no essoin ; and it could be taken though the defendant made default in appearance. The assize, in fact, protected seisin — whether rightful or wrongful. It pro- tected the man in possession from attack ; and it restored a person disseised if he took proceedings at once.- But if the person dis- seised was on the land he must take such proceedings within four days.^ Otherwise the disseisor was seised and the only remedy for the person disseised was, before the invention of the writs of entry, the writ of right. Such was the assize of novel disseisin when it first made its appearance. But in course of time it gradually lost those char- acteristics of speediness and effectiveness which made it so useful a remedy in the twelfth and thirteenth centuries. In the first place, the growing elaboration of the law was giving to the terms of the question put to the jurors by the assize — Did B unjustly disseise A of his free tenement? — special and technical meanings.^ This meant that the number of incidental questions of law or fact which must be answered before the main question was reached was growing, and that, therefore, a large scope was given to the new arts of the pleader; for, as we have seen, it had become possible to plead many " exceptiones ; " ^ and these " exceptiones " might involve the decision of many questions of law by the court, or of fact by a jury into which the assize must be turned for this purpose.^ In the second place, the maintenance of the assize as a remedy for the person seised — seised rightly or wrongly — re- quired a large measure of the " lawyerly courage " "^ which will prevent hard cases from making bad law. The judges did not always possess this courage. They could not withstand the temptation of doing substantial justice. Consequently the scope ;voi. i App. iiiA. - p. and M. ii 52, " Besides serving as ' an interdict for the recovery of posses- sion,' it will often serve as 'an interdict for the retention of possession.' To consti- tute an actionable disseisin a successful ejectment of the possessor is not indispensable ; an unsuccessful attempt, a repelled invasion, will be enough," ^ Vol. ii 263, 583 ; L.Q.R. iv 29 — if he is away from the land a further reasonable time is allowed ; " the reasonable time is in several cases determined by the parallel rules about essoins ; " as to the four days Bracton, f. 163, says, " Quia si primo die rejicere non potuit, potest tamen in crastino vires resumere, arma congerere et auxilia amicorum invocare." ^Vol. ii 354; L.Q.R. iv 28; P. and M. ii 48, "The ideas answering to the terms * injuste,' ' disseisivit,' ' libero tenemento ' are being developed and defined, and it is becoming rather rash for laymen over whose heads an attaint is pending to swear that B has unjustly disseised A of his free tenement ; " for the later developments of the law which centered round these conceptions see Bk. iv Pt. II. c. i § 2. ^Vol. ii 251 ; below 630-632; for illustrative cases see Y.BB. 4 Ed. II. (S.S.) 126-128; 5 Ed. II. (S.S.) (1312) 9-11. •* Vol. i 330-331. ■- P. and M. ii 52. 10 THE LAND LAW of the assize was modified. In Bracton's day, if A disseised B and enfeoffed X, B could proceed against A and X, provided that A was still alive : A was punished for the disseisin ; X must re- store the land. But the assize did not lie either for the heir of the disseisee or against the heir of the disseisor, or, if the disseisor was dead, against his feoffee or disseisor.^ But in allowing it under any circumstances against the disseisor's feoffee it is clear that the law was extending the scope of the assize. It not only protected actual seisin, but also enabled a person entitled to seisin to recover it. But its original scope and purpose was so far re- membered that the question whether the disseisee could recover from the disseisor's feoffee depended upon the question whether the disseisor was alive or dead. It is clear that this will soon appear to be a very arbitrary limitation. In the third place, this tendency to introduce considerations of title was strengthened by two other circumstances, (i) The great usefulness of the assize induced the legislator to extend still further its capacity to pro- tect the owner. The Statute of Westminster II. enabled it to be used by an owner against a tenant for years and a guardian who had aliened in fee, and also against their feoffees.^ Here, again, therefore, a plaintiff could recover on the strength of his title against a person who had got peaceable seisin. (2) The period of limitation, i.e. the time within which the assize must be brought, gradually lengthened. Short periods of limitation were at first fixed by royal ordinance. These periods gradually ceased to be fixed.^ 1242 was the date fixed by the Statute of Westminster I. ;^ and 1242 the date remained till the year 1540.^ " If," says Maitland, " I be permitted to demand restitution of land on the ground that you ejected me eighty or even twenty years ago, whatever we may call this complaint, it will be difficult to think of it as other than a demand that you should restore to me what is mine, difficult to think of it as based not on proprietary right, but on injured possession, and difficult because substantially un- just to prevent your pleading whatever title you may have." ^ Thus we are not surprised to find that the plaintiff in the assize gradually relied more and more on title.''' The cases in which ^P. and M. ii 55 — we may note that if A had enfeoffed X during the time allowed to B for self-help, both A and X could be punished as disseisors. 2 13 Ed. I. St. I c. 6, *' In case also when any holding for term of years or in ward alieneth the same in fee and by such alienation the freehold is transferred to the feoffee, the remedy shall be by writ of Novel Disseisin, and as well the feoffor, as the feoffee shall be had for disseisors, so that during the life of any of them the said writ shall hold l^ce." In Bracton's day these cases were met by writs of entry, P. and M. ii 54 n. i ;"^.B. 3, 4 Ed. II. (S.S.) 112, 113. 3 P. and M. ii 50, 51. ^3 Edward I. st. i c. 39. ^ 32 Henry VIII. c. 2. 6 L.Q.R. iv 293. ' See the cases cited by Maitland from the Y.BB. of Edward I. and III., L.Q.R. iv 287-289 ; as he says, they show that the requirement of title is growing more THE REAL ACTIONS 11 the true owner could not recover by its means on the strength of his title became fewer and fewer ; and those which remained — the cases of Descents Cast and Discontinuances ^ — soon began to be regarded as anomalies. The result was fatal to the assize of novel disseisin. More and more scope was allowed to the subtleties of pleaders en- deavouring to evade the main question to be decided by raising points of law or incidental questions of fact.^ " And so the assize falls into the ruck of the real actions." ^ Before passing from the assize of novel disseisin to the newer forms of action which took its place, we must glance at the As- size of Nmsance, which was, in a manner, supplementary to it. It lay, says Fitzherbert,^ " where a man levieth a nuisance to my freehold which I have for my life, in tail, or in fee simple." The novel disseisin was directed to secure an undisturbed possession : the assize of nuisance to secure its free enjoyment.^ Being a real action it only lay for or against freeholders who had suffered by or who had caused the nuisance.^ For a more general remedy against other persons unconnected with the land there was no remedy till the rise of actions of trespass on the case.'^ (iii) The writs of Entry sur disseisin. These writs of Entry begin, like the PrcBcipe in capite, with the words " Praecipe quod reddat ; " but they do not leave at large, as between the parties, the question of better right. They go on stringent; cp. the Eyre of Kent (S.S.) ii 192-193; iii 143-144; Y.B, 8 Ed. II, (S.S.) 2g per Bereford, C.J. 1 Vol. ii 585-586. 2 See e.g. Y.BB. 5 Ed. II. (S.S.) (1312) 112-113; 20 Ed. III. (R.S.) ii 128-138; 12 Rich. II. 114-115. ^ L.Q.R. iv 295, " The formulation in the original writ of the question for the jurors was a device only suitable to an age whose law was as yet but meagre. As such terms as • freehold ' and ' disseisin ' become more and more technical, the pleader of one litigant becomes more and more anxious that the question so formu- lated shall not be answered, and the justices take that pleader's side, for they hold that matter of law is for the court and only purest fact for the laymen. The plead- ings in assizes become at least as complicated and as colourable, because there is a fixed question for the jurors which has to be evaded. And so the assizes fall into the ruck of the real actions." ^F.N.B. 183I-184B; for the writ see Bracton f. 233; for another specimen see Eynsham Cart, i no. 504. ^ P. and M. ii 53. A writ which was directed to a somewhat similar object is the Curia Claudenda; "This writ," says Booth (Real Actions 242), " lies for him who is tenant for life, or has other estate of freehold in land, and he who has land next ad- joining, ought to inclose his land and will not, to the nuisance of the plaintiff." « Y.B. 20 Ed. III. (R.S.) ii 148-150 ; F.N.B. 185 G. ; Bl. Comm. ii 222 ; the scope of the assize was slightly extended by the celebrated clause 24 of the Stat. West. II. which empowered the issue of writs on the case — indeed, the narrow scope of the as- size is given as an illustration of the kind of evil the statute was meant to remedy ; for the effect upon substantive law of this limitation in the scope of the assize see below 156-157. 7 Below 28. 12 THE LAND LAW to suggest that the tenant, or his predecessors in title, " had no entry into the land claimed " except by some means stated in the writ, which means will give no right to the land. The question to be tried, therefore, is limited to the question. Did or did not the tenant come to the possession of the land in the manner sug- gested by the demandant ? Though these writs do not appear in Glanvil's book, we can see an approach to them in the writ provided for the debtor, who, having gag^d his land to a creditor for a term of years, wishes to redeem it. The writ commands N that he restore to R certain land, which R gaged to N for lOO marks for a term which has elapsed, -^nd that he (N) receive his money.^ As Maitland has pointed oiit ^ this is a writ Prcecipe for land, assigning as a special reason why the tenant should restore, the fact that the term has expired. " The change of a few words would turn the writ now before us into one of the commonest of the writs of entry, the writ of entry ad terminum qui praeteriit. Here i& the first germ of a great institution."^ The institution was not long in making its appearance ; for some of these writs are known in the first years of the thirteenth century/ The reason for the invention of these writs is to be found primarily in the cumbersome character of the writ of right and the limitations of the original scope of the novel disseisin. It was felt to be hard to drive a man, who might perhaps have a recent and long-continued seisin on his side, to prove his title by means of a writ of right. ^ He was allowed, therefore, to suggest a par- ticular fault in the tenant's title, and to recover if he could show that the tenant entered by the faulty title suggested. This being the reason for the invention of these writs, we are not surprised to find that some of the earliest of them are the " writs of entry sur disseisin." At first perhaps they were only allowed where either disseisor or disseisee had died pending the trial of the assize ; ^ 1 " Precipe N quod juste et sine dilatione reddat R totam terram, vel terram illam in ilia villa, quam ei invadiavit pro centum marcis ad terminum qui preteriit ut dicit, et denarios suos idem recipiat," Glanvil x 9. 2 Forms of Action 333. 3 Ibid. ^ Vol. ii 193 ; P. and M. ii 64 ; a writ of entry for the disseisee against the heir of the disseisor was made a writ of course in 1205, Rot. CI. John 32, cited P. and M. loc. cit. n. I ; in the Eyre of Kent (S.S.) iii 41 Spigurnel, J., puts the converse case of a writ of entry for the heir of the disseisee against the disseisor ; for specimens see App. Ia (i). ^ For a similar development based on similar reasons in the canon law see P. and M. ii 66. 6 Bracton, f. 219b, puts the following clause in the writ, " Et unde assisa novae disseisina; summonita fuit coram justiciariis nostris ad primam, etc., et visus terra captus, et remansit assisa capienda eo quod praedictus C. obiit ante captionem illius assisae ; " but ibid 2i«b he says, " In omni casu tenet, sive incepta fuerit in vita ante- cessoris sive non et quoad restitutionem, et secundum quosdam tenet quoad poenam, si assisa fuerit incepta, et quoad restitutionem, et aliter non "—the law was clearly in an uncertain state; and cp. Y.B. 3, 4 Ed. II. (S.S.) 112 per Herle. THE REAL ACTIONS 13 but this soon ceased to be a condition of obtaining them. Indeed, the justice and expediency of limiting in some way the enquiry as to better right was obvious ; and, as we have seen, the right to get this advantage by the tender of the demi mark was even ad- mitted in the writ of right itself.^ Once having allowed the principle of these writs, two questions naturally arise, (i) Can the disseisee or any of his heirs sue? (2) Can the tenant be sued if a faulty entry by any of his prede- cessors in title at any distance of time in the past be suggested ? The first question was answered in the affirmative from the early years of the thirteenth century.^ The second cjuestion was answered in the negative until the Statute of Marlborough (1267).^ Before 1 267 the demandant might suggest that the tenant had no entry save per A, which A had disseised the demandant or his an- cestors {writ of entry in the per) ; or he might suggest that the tenant had no entry sdiVQper A to whom (cut) B demised the land, which B had disseised '^the- demandant or his ancestors (writ of entry in the per and cut). It was only " within these degrees " that a writ of entry lay.^ But there was no logical reason for this limitation, and perhaps no legal reason. Probably the reason was political. All these writs of entry began, as we have seen, with the words " Praecipe quod reddat ; " and Magna Carta had con- ceded to the feudal lords that the writ Praecipe should not issue so that a man shall lose his court. ^ It is true that the clause in the Charter was probably directed to the praecipe in capite ; but it is equally clear that if the demandant was allowed to allege a flaw in the tenant's title, at any period however remote, in a form of action which could only be brought in the king's court, the clause in the Charter would be rendered nugatory. In 1267, however, the king was again master in his realm ; and in that year the view for which Bracton had argued ^ became law. A de- mandant was allowed to bring the writ of entry in the post ; that is, he could allege that the tenant had no entry save after (post) a disseisin that one A had committed against the demandant or some one of his ancestors.'' In other words, the writ was allowed to be 1 Above 6. '^ P. and M. ii 64, 70. ^ 52 Henry III. c. 29. , \V. and M. ii 64, 65 ; App. Ia (i) ; Bracton f. 2igb; it is suggested ibid f. 318 that the limit originated in the fact that the entry should ht. proved by the testimony of living witnesses, " non enim excedit tertium gradum nee tempus quod excedit testimonium de visu et auditu;" 318b— so the writ of entry maybe turned into a writ of right " propter longissimum ingressum; " below 14 n. 2. , °(i2i5) c. 34; vol. i 58-59; above 6. i "f. 219b, " Et si hujusmodi tenementum ulterius quam ad tertiam personam iranslatum non fuerit, locum non habebit breve de ingrespu, nisi sit qui dicat quod sine mentione de ingressu fieri possit breve hoc modo." ' 52 Henry III. c. 29, " Habeat conquerens breve de recuperanda seisina sine \mencione graduum, ad cujuscunque manus per hujusmodi alienaciones res ilia de- venerit, per brevia originalia per consilium domini Regis providenda ; " as Maitland 14 THE LAND LAW brought " out of the degrees ; " and when the writ was so brought there was no need to show how the land had passed from A the disseisor to the tenant. It is clear that these writs of entry occupy a middle position between the summary possessory remedy of the novel disseisin and the lengthy proprietary remedy of the writ of right. It is clear too that, as between the various writs of entry, some partake rather of the nature of possessory, some of the nature of pro- prietary remedies. Bracton is not quite clear in his own mind as to their nature. He sometimes speaks of them as if they were merely supplementary to the assize of novel disseisin ; ^ but he ad- mits that other species of writs of entry are proprietary; and some of them have such close affinity with the writ of right that they can be turned into a writ of right by the pleading of the parties to the action.^ This double aspect — partly possessory, partly proprietary — they retained to the end.^ The popularity of these writs was due to the flexibility of the principle upon which they were based. New writs could easily be formed on this model to protect the various rights recognized in the land. Though the older remedies survived, and were sometimes used, their work and sphere were for the most part usurped by writs of entry of one sort or another. A writ of entry in the post could do most of the work of the writ of right, and a writ of entry in the nature of an assize'* came in practice to be substituted for the assize of novel disseisin. In fact, the various writs of entry were, during this period, made to do for the land law what the various developments of the writs of trespass and deceit were made to do for the law of tort,^ because, in both cases, the flexibility of the form of action made it capable of the most diverse applications. has said, Forms of Action 336, '* the Statute of Marlborough, which in many ways marks the end of feudalism, in effect abolished the restrictions on the formation of writs of entry — but it only did this by adding to their number ; " apparently a writ in the post was abateable if a writ within the degrees could have been brought, Y.B. 6 Ed. II. (S.S.) i 61. ^ f . 220, ♦' Tale breve de ingressu naturam sapit assisae novae disseisinae ad omnia quoad restitutionem licet non quoad pcenam." 2f. 318b, "Nisi breve de ingressu per narrationem vertatur in breve de recto, propter longissimum ingressum, qui probari non poterit per visum proprium alicujus et auditum sed ahenum ; " this doctrine became obsolete, P. and M. ii 74 n. 2. Was this owing to the invention of writs of entry in the post ? The entry in such a writ could not be proved per visum et auditum proprium. 3Y.BB. 33-35 Ed. I. (R.S) 421; 3 Ed. II. (S.S.) 160, "I wish all of ycu to understand that no writ of entry is a writ of right, but it lies in the possession coloured by right ; for that only is a writ of right which takes issue in the right," per Bereford, C.J. 4 F.N.B. igiC-ig2F ; Booth, Real Actions 174 seqq. It is sometimes called a writ of entry in the Quibus, and as Booth says, 172, ** differs not from an assize of novel disseisin in the cause of action, but in the proceedings and process ; " for a case in which such a writ was brought see Y.B. 12 Rich. II. 172. "* Vol. ii 455-456; below 350-351, 429-451. i THE REAL ACTIONS 15 The other Real Actions We must now consider the other real actions which protected the diverse interests which various persons might have in the land. It would be impossible to describe them all in detail ; but, as I have said, their enumeration will serve as a useful guide to the mediaeval land law regarded from the mediaeval point of view. In thus enumerating them I shall divide them into the following groups : — (i) The actions which lie as between lord and tenant, (ii) The actions which lie to protect the lord or tenant of particular estates in the land. (iii) The actions which lie to protect incorporeal rights, (iv) The action which lies to assert the right to a villein, (v) The actions which arise out of certain family relation- ships, (vi) The actions which arise out of the incapacity of persons. (vii) The actions concerning ecclesiastical property, (viii) The actions which deal with abuse of the process of the court. In the various forms of action falling within these groups we can see the various stages in the development of the real actions. There are the actions which fall within the writ of right group, e.g. the ne injuste vexes, and the writ of right of dower. There are actions which belong to the possessory assize group, e.g. the assize of mort d'ancestor, and darrein presentment. The most numerous class of actions are those begun by writs of entry, in the per^ cut, ^.ndpost, devised to protect the many new relations which gradually came into being with the growing elaboration of the law. (i) The actions which lie as between lord and tenant. Ne injuste vexes} This writ lay where the tenant and his ancestors held the land of the lord and his ancestors by certain services, and the lord, by the hand of his tenant, got seisin of more or greater services and distrained for them ; in such a case the tenant by this writ could assert his freedom from such services. De consuetudinibus et serviciis} This writ lay for the lord against the tenant who withheld his due services. It is a writ ^ Booth, Real Actions 126, 127 ; cp. Y.B. 3, 4 Ed. II. (S.S.) ^^y Scrope, J., for various alternative remedies ; for the cases in which the lord might use an assize of novel disseisin, or mort d'ancestor, or a writ of right sur disclaimer see Bl. Comm. iii 232, 233. 2 Booth, Real Actions 132; cp. Y.BB. i, 2 Ed. II. (S.S.) 116; 11, 12 Ed. III. (R.S.) ig8 ; App. Ia (4). 16 THE LAND LAW of right in its nature — in the debet and solet when the lord counts of his own seisin ; in the debet when he counts of the seisin of his ancestor. Being a writ of right in its nature, the procedure upon it was slow and cumbrous. The lord, if successful, established his title to the services, and could distrain for them; but he could not regain possession of the land. If there was nothing on the land to be distrained it was a remedy of small value. ^ In fact, after the decay of the feudal courts, the lord had no effective remedy against a tenant who left his services unperformed and his land uncultivated. In such a case a remedy was required by which the lord could regain possession of the land itself.^ Such a remedy he obtained by means of the writ of Cessavit. Cessavit} This writ was introduced by the Statutes of Gloucester (1278) and Westminster II. (1285)^ in order to enable the lord to get the land itself in default of the due performance of the services. It was derived, through the canon law, from Justinian's legislation.^ But Miss Bateson has shown that the action differs from the Roman model, and resembles the rules laid down in some of the borough customs in its requirements (i) that the land must have lain fresh for two years; (2) that there must be no distrainable goods on the land ; and (3) that the landlord must have got judgment^ According to Roman law it was only necessary that the rent should be in arrear for the required period. Probably here as in other cases a Roman idea has been naturalized and adapted to native requirements. The writ could be brought in the per^ cui^ or post. Mesne? This writ lay where there was lord, mesne, and tenant, and the mesne did not perform his services, so that chattels on the land held by the tenant were distrained. The tenant re- covered damages from the mesne, and got judgment that the mesne acquit him by performing his services. Warrantia Car tee} This writ lay against the feoffor or his heirs where a man was enfeoffed by deed with warranty, and was impleaded in an action (e.g. an assize) in which he could not vouch to warranty. There were also other remedies for breach of warranty of which I shall speak later. ^ Escheat}^ The lord had this writ to recover the land when his tenant in fee simple died without heirs. 1 P. and M. i 333. 2 ibid i 335. 3 Booth, Real Actions 133; Y.B. 11, 12 Ed. III. (R.S.) 196; App. Ia (6). ^6 Edward I. c. 4 ; 13 Edward I. st. i c. 21. ^ P. and M. i 334 n. 2 ; Bl. Comm. iii 334. fi Borough Customs (S.S.) ii Ixiv, 7 Booth, Real Actions 136; for instances see Y.BB. 3, 4 Ed. II. (S.S.) 130; 4 Ed. II. (S.S.) 71 ; App. lA (3). ^ Booth, Real Actions 240. ' Below 159-161. 1° Booth, Real Actions, 135. THE REAL ACTIONS 17 De Recto CustodicB terrce et heredis} This was a writ of right by which the lord could assert his right to the wardship of the land and of the body of the infant heir. Of the remedies for waste I shall speak later ; ^ and with the action of replevin which arose out of the lord's right of distraint I shall deal with when I come to the subject of self-help.^ (ii) The actions which lie to protect the lord or tenant of particular estates in the land. Estates tail. The writ of Formedon {fonna doni\ though originally regarded as being possessory in character,* came to be regarded as so distinctly proprietary that it was called the writ of right for the tenant in tail.^ In the developed common law there were three varieties of the writ. Formedon in reverter. This variety of the writ could be brought by the donor or his heirs when the issue of the donee in tail failed. Formedon in descender. This variety of the writ could be brought by the issue in tail against the alienee or disseisor of the donee in tail after the death of such donee. Formedon in remainder. If the tenant in tail alienated, or was disseised, and died without issue, the remainder-man had this writ to recover the land.^ The question whether some or all of these writs were known to the common law before the passing of the Statute de Donis Conditionalibus (1285),'' or whether, like the estate tail, they were created by this statute, has been the subject of some controversy. It seems to me that this controversy can only be settled by considering the object with which the Statute de Donis was passed. We shall see ^ that before this statute a gift to a man and the heirs of his body created a fee simple con- ditional. It was a gift to a man and his heirs conditionally upon the birth of issue. Hence if no issue was born, the condition was not fulfilled, and the donor could recover the land ; but, if issue was born, the condition was fulfilled, and the donee got in substance a fee simple, which he could alienate as he pleased. If, however, he did not alienate, and died without issue, the estate reverted, ^ Booth, Real Actions 132 ; for the writs of ejectment and ravishment of ward (20 Henry III. c. 6; 13 Edward I. st. i c. 35) see F.N.B. 1391-1400 ; Reeves, H.E.L. ii 117, 118; Y.BB. 33-35 Ed. I (R.S.) 174; 13, 14 Ed. III. (R.S.) 146; 17, 18 Ed. III. (R.S.) 392 ; they are writs in the nature of trespass, and they are an early, probably the earliest, instance in which such a writ was employed to protect rights for which there was a real action, below 27 ; it was the easier to protect these rights in this way because they were regarded as chattels, below 215. 2Below 121-123. 3 Below 283-287. 4Y.B. I, 2 Ed. II. (S.S.) 159. 5 Booth, Real Actions 139 ; App. Ia {2). ^ Co. Litt. 326b. ' 13 Edward I. c. i, Stat. Westminster II. 8 Below 111-114 ; cf. vol. ii 349-350. VOL. in.— 2 18 THE LAND LAW just as if no issue had been born. This being the case, it is not surprising to find that there is a practically uni\'ersal consensus of opinion that the first form of the writ — Xh&fonnedon in reverter existed at common law.^ On the other hand, it seems to me that the weight of the evidence is in favour of the view that the formedon in descender was introduced by the statute. Before the statute the issue had no remedy if his ancestor alienated ; and one of the objects of the statute was to give him a remedy in such a case.^ It is true that if his ancestor was disseised he had a remedy ; but it was probably not by writ of formedon, but by assize of mort d'ancestor.^ This, it seems to me, is the view of the law accepted in the Year Books ; and, having regard to the words and scope of the statute, the view which is a priori the most probable. The writ of formedon in remainder is not given by the statute ; nor is there any positive evidence that it existed at common law. Estates in remainder were certainly limited to take effect after conditional fees ; ^ but as yet we have no evidence that any writ was devised for their protection.^ However that may be, it is quite clear that such a writ was introduced shortly after the passing of the Statute de Donis.^ ^ " Breve per quod donator habet recuperare suum, deficiente exitu satis est in usu in cancellaria," 13 Edward I. c. i ; cf. Y.BB. i, 2 Ed. II. (S.S.) 3 ; 3, 4 Ed. II. (S.S.) 41 ; 8 Ed. II. (S.S.) 60 ; 18, 19 Ed. III. (R.S.) 202 ; Willion v. Berkeley (1561) Plowden at p. 235 ; Coke, Second Instit. 336 ; Booth, Real Actions 140 ; Challis, Real Property (3rd ed.) 84; according to one not improbable view, Plowden at p. 247, cited below 115 n. 4, it did not lie after three descents from the donee ; see below 115 for an explanation of this view. It would seem, however, that before De Donis the donor's right was not a reversion, but merely a possibility of reverter, below 68 n. 5. 2" Et quia in novo casu novum remedium est apponendum fiat impetranti tale breve "—then follows the writ, 13 Edward I. c. i. 3 Y.BB. 3, 4 Ed. II. (S.S.) 112-113 ; 2 Rich. II. 48-49 ; Willion v. Berkeley (1561) Plowden at p. 239; Coke, Second Instit. 336; Booth, Real Actions 140. On the other hand, the existence of the writ at common law is thought to be probable by Maitland from a consideration of a MS. register of writs of Edward I.'s reign, cited vol. ii 615 App. Vd note 4 ; and this view is supported by Co. Litt. 19a ; an intermediate opinion is that of Serjeant Bendloe who thought that a formedon in descender lay at common law where an assize would not serve the issue ; thus if a man married a first wife and had a son, and he then married a second wife and land was given to him and the heirs of his body by the second wife, and he had a son by her— then, as the assize would not meet the case of the son by the second wife, because he was not heir, this son had a formedon in descender, Plowden at p. 239 ; but there is no evidence that such a writ was ever brought before the statute in such a case. 4 P. and M. ii 23-25 ; Maitland, Remainders after Conditional Fees, Coll. Papers ii 174 ; Challis's reply to this paper will be found in his Real Property (3rd ed.) App. II. 5 Co. Litt. 280b ; Booth, Real Actions 151, says, " This writ is partly grounded upon the equity of the Statute de Donis Conditionalibus ; " it is true that Bracton, f. 69, says that there was such a writ, and that he will give it, but he fails to do so ; see P. and M. ii 24. 6 It is mentioned in Y.B. 33-35 Ed. I. (R.S.) 20 ; and there is a case turning on such a writ in Y.B. i, 2 Ed. II. (S.S.) 166-168. THE REAL ACTIONS 19 Estates for life. Intrusion} This was a writ of entry (in the/^^, cui or post) which lay for the reversioner when the tenant for life, in dower, or by the curtesy died seised, and after his death one intruded upon the land. Entry ad communem legem} This was a writ of entry (in the per^ cui or post) which lay for the reversioner after the death of the tenant for life, in dower, or by the curtesy when such tenant had aliened. Entry in casu proviso} This was a writ of entry (in the/e?r, cui ox post) given by the Statute of Gloucester (1278). It lay when the tenant in dower aliened in fee, in tail, or for life ; and by it the reversioner could recover the land even during the life of the tenant in dower. " The statute," said Bereford, CJ., "was provided to supply a deficiency in the common law; for under the common law there could have been no recovery during A's [the tenant's] lifetime ; and the statute was made in remedy of that hardship." * Entry in consimili casu} By the Statute of Westminster II. (1285) the last mentioned writ was extended to the cases of the tenant for life and tenant by curtesy. Estates for life or years. Ad terminmn qui prceteriit} This was a writ of entry (in the pery cui, or post) which lay for the lessor or his heirs, when such lessor had leased for life or years, and the lessee, after the ter- mination of the lease, held on, or where a stranger entered, so that the land was detained from the lessor or his heirs. Estates held in Common. Partitione Facienda} This writ lay at common law for coparceners (whether at common law or under the custom of gavelkind) to compel a division of the land. It was not extended to tenants in common and joint tenants till Henry VIII.'s reign. ^ (iii) The actions which lie to protect incorporeal rights. The Assize of novel disseisin lay if a man were disturbed in his possession of certain incorporeal things, such as rents or J Booth, Real Actions i8i. "^WAA. 190; Y.B. 3, 4 Ed. II. (S.S.) 22, 23. 3 Booth, Real Actions 197; 6 Edward I. c. 7; Y.B. 3 Ed. II. (S.S.) 16. *Y.B, 6, 7 Ed. II. (S.S.) 60; see ibid, xxi-xxiii for the manner in which the writ was used instead of a formedon in order to avoid being barred by the ancestor's warranty ; as to this effect of warranty, see below 117-118. 5 Booth, Real Actions 199 ; 13 Edward I. st. i c. 24 ; Y.B. 17, 18 Ed. III. (R.S). 440 seqq. ^ Booth, Real Actions 195 ; for the evolution of the writ see P. and M. ii 68, n. 2, ^ Booth, Real Actions 244 ; Litt. § 247. 831 Henry VIII. c. i ; 32 Henry VIII. c. 32. 20 THE LAND LAW rights of common.^ Its scope in this direction was extended by the Statute of Westminister lU Quod Permittat} This was a writ which might be in the nature either of a writ of right or of a writ of entry. It lay for the disturbance of rights of common or other incorporeal rights ; and could be brought by the heir of the disseisee against the disseisor, his heir, or feoffee. In some cases the question whether it or a Praecipe quod reddat was the appropriate writ gave rise to controversy ; ^ and in other cases it was coextensive with the assize of novel disseisin as extended by the Statute of West- minster II. Its scope was extended to remedy many various nuisances to incorporeal hereditaments by the provision of c. 24 of the same statute, which permitted the making of writs in consi- mili casu. Quo ]ure} This writ lay for a tenant seised in fee simple against one who claimed common over his land. Secta ad Molendinum.'^ This writ lay for a man to whose mill another owed suit, if that suit were withdrawn. (iv) The action which lies to assert the right to a villein. Nativo habendo? This was a writ directed to the sheriff ordering him to deliver to the lord his villein who has run away from his manor. The villein could, before 1350,^ stop all pro- ceedings on this writ, till the itinerant justices came into the county, by suing out the writ de libertate probanda!^ (v) The actions which arise out of certain family relationships. Husband and wife. The writs connected with dower. The law provided several writs to enable a woman to recover her dower. ^^ The first of these writs is the Writ of right of dower. '^^ This was a writ of right patent directed to the heir of the husband ordering him to do the wife right in his court. ^^ But, because it was a writ of right patent triable in the lord's court, it came in course of time to be 1 P. and M. ii 130, 131, 139. 2 j^ Edward I. st. i c. 25. 8 Booth, Real Actions 237; F.N.B. 123F-125A ; App. Ia (7). ^The Eyre of Kent ii 131, 132, 133, 134, 135, 136; it seems to have been thought that if the disturber of the right was the owner of the soil of the servient tenement this writ lay ; and if the disturber was a stranger a Praecipe quod reddat lay. ^ Booth, Real Actions 129. « Ibid 137 ; see Y.B. 12, 13 Ed. III. (R.S.) 122 for a specimen. ' Booth, Real Actions 127 ; App. Ia {16). 8 25 Edward III. c. 18. » Booth, Real Actions 128 ; App. Ia (17). ^° For the law as to dower, see below 189-197. 1^ Glanvil vi 5; Booth, Real Actions 118; Maitland, Forms of Action 330. 12 If he had no court the writ was directed to the sheriff and was returnable in the Common Pleas, Booth, op. cit. 118. THE REAL ACTIONS 21 superseded by the writ of dower unde nihil habet} This was a writ of right brought in the king's court ; and, as its name im- plies, only lay when the woman had received no part of her dower. The explanation given by Bracton ^ of the reason why the action lay in the king's court in such a case is as follows : — It is possible that the widow has not got any part of her dower because the heir denies that she was married. But this question, being a matter of ecclesiastical law, can only be tried by the bishop ; and the bishop can only be compelled to certify as to this by the king's court.^ " It follows that if there is any chance of a denial of the marriage the widow must go to the king's court. " * Because this writ lay in the king's court it eventually superseded the writ of right of dower, " wherein sometime great delays are used." ^ Booth speaks of it as the "ordinary writ," and explains that generally, when a wife sues for dower, she has no part of her dower assigned to her.*' The writ of Admeasure- ment of dower lay when " the heir when he is within age endoweth the wife of more than she ought to have dower of: or if the guardian endow the wife of more than the third part of the land of which she ought to have dower."" In these cases the heir, when he attained his full age, could sue for admeasurement, and the restoration of the surplus. As the result of a judgment in a writ of dower the widow could not enter, but she must get a writ to the sheriff to assign her dower ; ^ and, in a writ of dower unde nihil habet, the statute of Merton gave her damages against the heir for its detention ; ^ but her right to damages was lost if the heir died before they were assessed. ^^ The inconvenience of this procedure for the recovery of dower induced the court of Chancery to interfere in the eighteenth century. ^^ That court not only gave a better remedy, but actually enlarged the scope of the widow's right. It gave her a third of the rents and profits from the date of her husband's death till ^ Glanvil vi 15 : Booth, Real Actions 166 ; Bl. Comm. iii 183 ; Maitland, Forms of Action 330-331 ; App. I a (10). 2 Ff. 106, 296b. 3 See vol. i 121. ^ Maitland, Forms of Action 331. ^ Co. Litt. 32b. " " This writ is of little use or practice because of the ordinary writ of dower (unde nihil habet) ; for ordinarily now the wife has no part of her dower assigned to her when she sues for dower, and unless she have some part of her dower in the same town, and of the same person, and sues for the residue, she needs not bring a right of dower, but the other, unde nihil habet," Booth, Real Actions 118; and see 3 Edward I. st. i c. 49. ' F.N.B. 148F; Bracton ff. 314-315. 8 Co. Litt. 34b. » Ibid 32b ; 20 Henry III. c. i. ^° Williams v. Thomas [1909] i Ch. at p. 720 ; cf. Fitz., Ab. Damages pi. 119. ^^ See the judgment of Cozens-Hardy, M.R., in Williams v. Thomas at pp. 720- r23 ; apparently Somers, L.C., refused to give any relief to a dowress in 1699, 2 Eq. "i^as. Ab. 386 ; but Cowper, L.C., in 1710 allowed a dowress a third of the profits ifore the assignment of dower, ibid. 386-387, 22 THE LAND LAW dower was assigned, not only as against the heir, but also, if the the heir was dead, against his representatives. Thus the widow got in equity "two distinct rights, namely first a right to one third of the rents and profits from the death, and next a right to have dower assigned to her ; " ^ and her right of action to get an assignment, though it may be barred by laches, does not fall within the Real Property Limitation Act.^ Cui in vita.^ This was a writ of entry (in the per, cui, or post) which could be brought by the wife, after her husband's death, to recover the wife's freehold aliened by the husband. If the wife died before she brought this writ, the heir had a writ of entry sur cui in vita if the estate was in fee simple : a formedon if the estate was an estate tail. Cui ante divortiurn} This was like a cui in vita, substituting the divorce for the death of the husband. Causa matrimonii prcelocuti.^ This was a writ of entry (in the per, cui, or post) which lay to enable a woman to recover land from a man to whom she had given it in consideration of a contemplated marriage with him, which had not taken place. Ancestor and heir. The three different varieties of the real actions — the writ of right, the assizes, and writs analogous to the writs of entry in that they extend the scope of the assize — can be seen in the actions provided to protect the interests of the heir. The writs of right, (a) If there were two claimants to the estate, both of whom claimed to be descended from the same ancestor, and the rival pedigrees were not disputed, the matter was tried by writ of right as a pure question of law on the pleadings. There was neither battle nor the grand assize.^ (J)) The writ of right de rationabili parte? If an ancestor seised in fee simple made a lease for life and died, and after- wards the lessee died, and then one of two or more coparceners deforced the other or others, they could bring this writ to recover their share. As in case {a) the question was tried on the pleadings, ic) Nuper obiit.^ This writ was not properly a ^ Williams v. Thomas [1309] i Ch. at p. 721. 2 " In my opinion the statute applies to an action at law or suit in equity to gain possession of a definite piece of land as distinguished from a proceeding to obtain a delimitation of parcels under which for the first time a title to a definite piece of land will be obtained," ibid, at p. 722 per Cozens-Hardy, M.R. 2 Booth, Real Actions 185 ; for the evolution of this writ see P. and M. ii 68 n. 2, and Y.B. 20 Ed. III. (R.S.) i 428 per Hillary, J. ; App. Ia (8). 4 Booth, Real Actions 188. 5 Ibid 197 ; vol. ii 594 n. i ; Y.BB. i, 2 Ed. II. (S.S.) 32-34 ; 13, 14 Ed. Ill (R.S.) 226. «P. and M. ii 61. ' Booth, Real Actions 119. ^ Ibid 204 ; for cases which illustrate its scope see the Eyre of Kent (S.S.) iii 147-151. 153-159' THE REAL ACTIONS 28 writ of right at all. But, as Booth says, it had great affinity with the last-mentioned writ. Both lay for the recovery of land by one coparcener against another. The difference was that the writ of right de rationabili parte might be brought if the ancestor was seised at any time, whereas for the purpose of this writ the ancestor must have died seised. The assize of mort d' ancestor. I have already said some- thing of the scope of the assize of mort d'ancestor.^ The assize was summoned to answer the following definite questions — "the points of the assize " : (i) Was A seised in his demesne as of fee on the day on which he died? (2) Did he die within the period of limitation allowed by the writ ? (3) Is the claimant A's nearest heir ? ^ The need for this assize arose because, as Maitland has pointed out, " seisin is not conceived of as a descendible right." ^ In the age of Bracton the law did not, as in the days of Littleton,^ attribute a seisin in law to the heir.^ Seisin had not in the former period acquired that connotation of title which it was acquiring in the latter.^ If the law had conceived of seisin as a descendible right " there would have been no place for the mort d ancestor, for its sphere would have been covered by the novel disseisin."^ The assize did not lie in respect of lands which were devisable.^ It followed that when, as the result of the legislation of Henry VIII.'s and Charles ll.'s reigns, all land became devisable, this remedy became obsolete.^ Extensions of the assize. The assize of mort d'ancestor lay not only against the original abator, but against anyone holding the land however remotely, from that abator ; ^^ but it could only be brought by the father, mother, brother, sister, uncle, aunt, nephew, or niece of the deceased ancestor. ^^ The reason for this limitation was probably the same as the reason for which the scope of the writs of entry were formerly limited — an extension would have taken business from the feudal lords and their courts. ^^ These lords do not seem to have objected 1 Vol. i 275-276, 329 ; P. and M. ii 56-62. 2 Booth, Real Actions 207. 3 Forms of Action 324 ; P. and M. ii 59. 4 § 448 ; Bk. iv Pt. II. c. I § 2. ' P. and M. ii 60. ^ Above 10 ; vol. ii 354, 584. ■^ Forms of Action 324 ; P. and M. ii 59. 8 " If the tenements be devisable the mort d'ancestor does not lie, and I will tell you why. In respect of devisable tenements the demandant may aver the points of his writ . . . yet, though he have all the points, he cannot recover against the devisee ; wherefore the mort d'ancestor does not lie," the Eyre of Kent (S.S.) iii 42 per Spigurnel, J. ; but this did not apply to the other ancestral writs aiel, besaiel, and cosinage, Y.B. 3 Ed. II. (S.S.) 198-199. 9 Bl. Comm. iii 187. 10 P. and M. ii 61. ^^ Booth, Real Actions 206 ; P. and M. ii 56. ^2 Above 13 ; MaitUnd, Forms of Action 325. 24 THE LAND LAW to its extension by means of the writs of Aiel and Besaiel} by- means of which heir got a remedy when the deceased was his grandfather or great-grandfather. But they did object to the writ of Cosinage ^ by means of which the heir got a remedy where the deceased was his collateral relative, however remotely related ; and, in support of their objection, they contended that such an extension was contrary to the clause of Magna Carta which limited the right to issue the writ Praecipe.^ Bracton argued that this extension was no infringement ; and the writ was upheld.^ Thus we get a set of writs of entry which were supplementary to the assize of mort d'ancestor in the same manner as the writs of entry sur disseisin were supplementary to the assize of novel disseisin. (vi) The actions which arise out of the incapacity of persons. Dum fuit non compos mentis} This was a writ of entry (in the per, cut, or post) by which a person, or his heir, who had aliened his land in fee simple, fee tail, for life, or years, while he was of unsound mind, could recover the land. Dum fuit infra cetatem} This was a similar writ in the case of alienation during infancy. Sine assensu capituli} This writ lay in the per, cui, or post for the successor of a dean, bishop, prebendary, abbot, prior, or master of a hospital where the predecessor had alienated the lands belonging to the house or office without the consent of their convent or chapter. (vii) The actions concerning ecclesiastical property. These actions were a very important branch of the law of real actions, and we can see here, as in other cases, the same distinct varieties. The writ of right of advowson? This was a writ analogous to the writ of right for land by which a person seised in fee simple of an advowson could recover the advowson. It very early came to be superseded by the two following writs. The assize of darrein presentment.^ This assize was sum- moned to answer the question, who presented on the last 1 For these writs see Booth, Real Actions 200 ; F.N.B. 221 D-O ; App. Ia (9). 2 Bracton f. 281a; Bracton's Note Book, case 1215. "See Y.B. 6 Ed. II. (S.S.) 212 where the proprietary character of the writ comes out in the remark of Bereford, C.J., to the effect that "this is a writ of cosinage in which you can take your title as high as you want to as long as you can make yourself cousin to him from whom you take your title." * Booth, Real Actions 189. ^ Ibid 193. « F.N.B. 194I-195B. ' Booth, Real Actions 121. 8 Vol. i 276, 329; Booth, Real Actions i2r, 224; P, and M. ii 136, 137; see Y.B. 3, 4 Ed. II. (S.S.) 47 for an instance. THE REAL ACTIONS 25 vacancy of a church, the advowson of which A is claiming against B. " The act of successfully presenting a parson to a church was regarded as a seisin, a possession of the advowson," ^ so that if A or his ancestors presented on the last occasion, A will probably 2 be adjudged to be entitled to present on this vacancy. Quare impedit? This writ was an extension of the assize of darrein presentment. If A presented to a church on the last vacancy, and, in the meantime, conveyed his right to B, B could not assert his right by the assize ; but he could sue by this writ any one who hindered his right. Originally, if the wrongdoer presented before action brought, B had no remedy whatever; but the Statute of Westminster 11. (1285) allowed him a period of six months from the vacancy within which to assert his right. The same statute also preserved the rights of infants, married women, and reversioners by allowing them to bring the assize or this writ, in spite of a usurpation made while they were under disability ; and gave damages to the plaintiff. It was for this reason that, in Richard II.'s reign, it was regarded as being rather delictual than proprietary in its character.* Supplementary to these writs was the Quare non admisit. It lay when a man, having recovered his advowson, and having got a writ to the bishop to admit his clerk, the bishop refused to admit him.^ The assize utrum was directed to a different purpose. Its original object was, as we have seen, to determine whether land was held by spiritual or by a lay tenure, in order that the case might go before the proper tribunal, spiritual or lay.^ But in spite of the clause of the Constitutions of Clarendon,'^ which stated that all cases concerning land held in frankalmoin should go to the ecclesiastical courts, the king's courts had obtained jurisdiction over all land held by this tenure. The ^ Maitland, Forms of Action 326 ; below 98, 100. 2 A might have granted the advowson to B, and B could plead this by an exceptio, P. and M. ii 137. 3 Ibid 137, 138; 13 Edward I. st. i c. 5 ; Booth, Real Actions 223 seqq. ; App. Ia (ii). 4 Y.B. 12 Rich. II. ^•^ per Charlton, CJ. '" F.N.B. 47C ; for a case in which such a writ was brought see the Eyre of Kent (S.S.) iii 162 ; for other supplementary writs relating to these matters see F.N.B. 36G-39G. ^ Vol. i 276, 329-330 ; Glanvil, xiii 2, mentions other recognitions " utrum," e.g. " utrum aliquis seisitus fuerit de aliquo libero tenemento die quo obiit ut de fcedo vel ut de vadio ; utrum aliquis sit infra astatem vel plenum habuerit aetatem ; utrum aliquis obierit seisitus de aliquo libero tenemento ut de foedo vel ut de warda ; " but these never developed into definite legal processes for beginning £( litigation. ^ c, ix ; below 35. 26 THE LAND LAW ordinary tenant in frankalmoin, therefore, had the ordinary free- holder's remedies, possessory and proprietary ; and he was denied any others. But the land belonging to a parish church was regarded as a gift to the church and not to the rector and his successors. The rector was regarded simply as the guardian of the church ; and though he might have a possessory remedy, e.g. the assize of novel disseisin, he had no proprietary remedy. The assize utrum came in the thirteenth century to be so used that it gave him, in right of his church, a proprietary remedy. This writ, said Scrope arguendo in 1 3 12-13 1 3, " is a writ of right, in which the parson can try the right of his church as highly as by any other writ that there is ; " and to this argument Bereford, C. J., assented.^ Thus the writ came to be " the parson's writ of right." ^ (viii) The actions which deal with abuse of the process of the court. Some of the actions which were given to remedy these abuses had a peculiar reference to the real actions. The writ of Attaint lay originally only against the assize.^ The writ Quod ei deforceat^ was given by the Statute of Westminster II. (1285) to enable a tenant of the particular estate of freehold to recover land which he had lost by default in a real action. The writ of Redisseisin was given by the Statute of Merton (123 5- 1236), and lay when a man who had recovered in an assize and had had execution was again disseised by the same disseisor. The writ of Post disseisin was given by the same statute after a recovery in any real action. The disseisor was sent to prison, and the injured party was by the Statute of Westminster II. awarded double damages.^ I have already mentioned the statutes which gave special remedies in the case of forcible entries.^ At the beginning of the mediaeval period the sphere of the real actions was kept quite distinct from the sphere of the personal actions ; ^ but, as we have seen, the action of trespass and its offshoots showed, at the end of this period, a tendency to encroach upon the sphere of the other personal actions.^ It was hardly possible that its expansion should leave the real actions wholly unaffected. The old stringency was being somewhat re- laxed. The forms of action were no longer divided from one lY.B. 6Ed. II. (S.S.)70, 71. 2 P. and M. i 226-228 ; the parson is not yet regarded as a corporation sole, below 480-481. 3 Vol. i 337. * Booth, Real Actions 253 ; 13 Edward I. st. i c. 4. •^ Booth, Real Actions 260, 261 ; 20 Henry III. c. 3. " Vol. ii 453 ; below 27 n. 5. 7 Vol. ii 261 ; below 27 n. 4. » Vol. ii 455-456. THE REAL ACTIONS 27 another by compartments which were completely watertight.^ From an early date trespass was regarded as being in some cases supplementary to the assize of novel disseisin. In the assize the plaintiff could only recover damage to the actual freehold, and not damages for injury to the chattels thereon/ unless the injury to the chattels and the disseisin were all part of one transaction.^ In other cases it was possible to make trespass do the work of the novel disseisin;^ and Henry VI. 's statutes of forcible entries, by giving actions of trespass, encroached on the sphere of the assize of novel disseisin.^ But it is not to be expected that trespass will make serious advances in this direction, in spite of the greater convenience of its procedure, till something more than damages can be recovered by its means. It was used at the end of this period to protect the copyholder^ and the lessee for years ; ^ and, when it has become possible by its means to restore to the lessee his term, it will become by easy fictions a serious rival not only to the novel disseisin, but also to many other real actions.® But this is as yet in the future. There are, however, other cases in which some forms of the action of trespass were making inroads upon the outlying frontiers of the field of the real actions. I have already noted that what was in substance a variety of the writ of trespass could be used to do the work of the writ of right of ward.^ In Edward III.'s reign another variety of the same writ became concurrent with the action of replevin. ^*^ But trespass was chiefly used, or attempts were made to use it, in the cases where the specific restitution given by the real actions was not so clearly superior to the damages given by the personal action. It is clear that encroach- ments upon the free enjoyment of some of that miscellaneous collection of incorporeal things known to the mediaeval common 1 Vol. ii 454-455. 2 Eyre of Kent (S.S.) iii 63, 73-74. ^ This is Mr. Bolland's explanation of the cases cited, ibid xx. ^Bracton's Note Book case 378; Y.B. 11, 12 Ed. III. (R.S.) 186 Stonore, C.J., says, " In a plea of trespass, by plea of the defendant the plea may be turned out of the nature of the writ, by pleading in the Right ; but let the plaintiff take care for himself that he do not plead out of the nature of the writ; " ibid 516 Trewith says, " It is not decided whether a writ of trespass lies for a disseisin ; " see Y.BB. 14 Ed. III. (R.S.) 230, 232 ; 14, 15 Ed. III. 104 seqq. for cases in which trespass was brought where an assize might have lain. ^8 Henry VI. c. g; Hale, H.C.L. 210, 211, "Many titles of land were deter- mined in personal actions ; and the reasons hereof seem to be . . . 3rdly, because the statute of 8 Henry VI. had helped men to an action to recover their possessions by a writ of forcible entry ; even while the method of recovery of possessions by ejectments was not known or used." ^ Below 208-209 ; vol. ii 578. "^ Below 216 ; vol. ii 581. « Bk. iv Pt. II. c. I § I. *• Above 17 n. i ; and the writ of Deceit and a Cui in vita might be concurrent, Y.B. 20 Ed. III. (R.S.) i 428, ^« Below 285. 28 THE LAND LAW law might easily be remedied by some form of this action.^ In Henry IV. 's reign an attempt was made to bring this action for an obstruction to a right of way ; but it was laid down that the case was one for the assize of nuisance, and the writ abated.^ But though, both in this period ^ and later,^ there was some re- luctance to interfere with the sphere of the real actions, the opinion was expressed that as against persons against whom the assize did not lie, or for minor disturbances, not amounting to total obstruction, the action might lie.^ As early as Richard II.'s reign it was allowed to do the work of the writ Curia Claudenda ; ^ and in Henry VI. 's reign there are several cases in which trespass on the case was used either as a substitute for or a supplement to a Cessavit, '^ or a Secta ad Molendinum.^ It was in respect to such rights as annuities and corodies,^ which lie on the borderland between property and contract, that the most definite encroach- ments were made in this period. In Richard II.'s reign it was allowed that the infringement of a customary right of the bedell of a hundred to claim, as incident to his office, certain gallons of beer, could be remedied by action of trespass on the case ; ^^ and, in Edward IV.'s reign, " Moyle and other justices and some of the Serjeants resolved that, if a man grants me that I shall have yearly for my life hay and straw in my house sufficient for the keep of two cows during the winter season, and if I am seised of this right and disseised, I shall have action on my case." ^^ These precedents were cited by Coke in the Earl of Shrewsbury s Case}'^ in which the modern rule was established that, in such cases, the parties might sue either by an assize or by action of trespass on the case. 1 Vol. ii 355-356. ^Fitz., Ab. Accion stir le Cas pi. 24, Markham said, " Si home leve un fosse ou molin a travers de mon chymin, j'avera assise de nusans etnul auter brief; " cp. Y.B. 19 Hy. VI. Mich. pi. ^g per Paston, J. (p. 29). ^Y.B. 20 Hy. VII. Mich. pi. 18, '• A ce que Kingsmill dit que ou Nusance gist, la ne gist Action sur le cas jeo agre bien : car I'un est real, et I'autre mere personel, et tiels actions ne peuvent estre ensemble ; " this idea survived till the abolition of the real actions in the rule that the action of debt would not lie to recover a freehold rent, so long as the freehold on which it was charged existed, Thomas v. Sylvester (1873) L.R. 8 Q.B. at p. 371 per Blackburn, J. ** See Anon. (1566) Dyer 248b; Moore v. Browne (1573) ibid 319b. 5Y.BB. 19 Hy. VI. Mich. pi. 49; 33 Hy. VI. Trin. pi. 10 per Prisot, C.J., and Moile, J. "Fitz., Ab. Accion sur le Cas pi. 50. 'Y.B. 22 Hy VI. Hil. pi. 36 (p. 47). 8 Ibid Mich. pi. 33. 9 Below 152-153. ^^ Fitz., Ab. Accion sur le Cas pi. 51 — this indulgence was put on the ground that the man could hardly be said to have a freehold ; as Thirning said, " Paraventour il n'ad riens mes pur cause de son office pour le temps, et, come un clerke cieins, il n'ad rien forsque un occupacion pour le temps ; uncore, si ascun luy fait tort a chose que afifectira a son office, il avera brief de trespass." " Ibid pi. 17 = Y.B. 4 Ed. IV. Pasch. pi. 2. 12 (161 1) 9 Co. Rep. atf. 51a, FREE AND UNFREE TENURE 29 In these directions, therefore, certain small inroads had been made upon the sphere of the real actions by the action of trespass on the case. When a variety of trespass on the case came to be regarded as a contractual action,^ we can see one road by which some of these miscellaneous incorporeal things of mediaeval law lost their character of things and became rights arising out of contract. We can see, too, one of the roots of the later doctrines as to covenants running with the land. The rights conferred by these covenants were in many cases things which issued out of the land, the right to which could be enforced against the holder of the land for the time being by real action.^ Some of them did not lose this characteristic when they came to be regarded as rights which rested upon the agreement of the parties. But, as I have said, the supremacy of this organized system of real actions was not seriously threatened during this period. That supremacy it had held for three hundred years, so that it was inevitable that the rights which were protected by it should assume a form different from those which were not so protected. In fact, the determination of the question whether any given right fell within its sphere has in many cases affected the whole subse- quent history of that right by placing it in one or other of the two great categories known to English law, real or personal property. We do not meet the term "real property" in the mediaeval common law; but the foundations of that conception were laid in the rules which determined the sphere of these real actions. So marked were the peculiarities impressed upon the rights which fell within that sphere that, though the real actions have disappeared, real property remains. In the ensuing sections we shall see what rights in the land were included within the sphere of influence of the real actions and what were not ; and we shall see that their inclusion or exclusion has given rise to large differences in the substantive law relating to them. § 2. Free Tenure, Unfree Tenure, and Chattels Real The distinctions between free tenure, unfree tenure, and chattels real are fundamental in the land law. I have already lid something of these distinctions.^ Here I must say something I little more in detail about their origins and the principles which iderlie them. Free Tenure and Unfree Tenure In the thirteenth century the legal effect of deciding that land is held by free or unfree tenure was clear. If the land was i Below 429-453. 2 Cp. Holmes, Common Law 388-390 ; below 161-165. 3 Vol. ii 260-262, 576-578, 581-582. 30 THE LAND LAW held by free tenure the tenant was protected by the courts of common law and by the real actions. If it was held by unfree tenure the tenant was protected neither by these courts nor by these actions. What was the principle which underlay this pro- cedural test, and what were its effects upon the law ? The free tenures cover a wide field, comprising many kinds of relationship between many different classes of persons ; ^ and the conception of tenure covers a yet wider field.^ But all those who held by these free tenures were protected by the same courts and by the same forms of action. It was only those who held by unfree tenure who escaped their direct^ influence. Now, this extension of the jurisdiction of the royal courts effected a great simplification in the land law. To see how great it was we need only look across the Channel. In France the laws relating to the military fiefs, to the lands of the roturier (a person answering in some respects to the socage tenant), and to the lands of the villein, all differed from one another;^ jurisdiction over land held by these different kinds of tenure was parcelled up among many feudal lords ; ^ and, as we have seen, the franc alien was still known. ^ It is clear, therefore, that the royal judges, in making this great simplification in the land law, must have been obliged to ignore many old distinctions, and to draw their lines through many different classes of tenure and classes of persons which, in the old days of customary law, shaded off into one another.^ Certain cases decided in the thirteenth century, when these great distinctions were being drawn, afford an illustration. These cases apparently lay down the rule that the lord cannot eject a free man holding by unfree tenure so long as he duly performs his services.^ But in later law, so soon as it was admitted that the services were villein services, the courts of common law would have enquired no further. These cases are in fact a survival from the days before all land-holding had been neatly divided into two classes upon the principle of protected or not protected by the king's court. ^ They cannot be regarded as foreshadowing the copyhold tenure of later law.^*^ It is true that some of the customs observed by the unfree tenants within the manor, and ^ Vol. ii 200, 260 ; below 34-54. ^ Ibid 199-201. 'As to their indirect influence see vol. ii 380-381. "^Esmein, Histoire du Droit Frangais (nth ed.) 215-248. 5 Ibid 294-301. fi Vol. ii 75 n. 8. 7 P. and M. i 389. ^Bracton's Note Book cases 70 and 88 (1220); case 1103 (1225); a decision of William Raleigh cited Bracton f. 200; for these cases see Vinogradoff, Villeinage 78-81 ; the Mirror tries to distinguish the villein from the serf (cp. Vinogradoff, op. cit. App. III.), and the book sometimes represents conservative opinion, vol. ii 332-333- ^ P. and M. i 340 n. 3. 1** For this view see Leadam, L.Q.R. ix 351. FREE AND UNFREE TENURE 31 that some of the exceptional modes of land-holding recognized by the common law, supply striking evidence of old resemblances ignored by the clear-cut distinctions of the royal judges ; ^ but copyhold tenure was the product of later influences, such as the growth of fixed customs created by the working of the manorial courts, and changes in the economic system.^ What then were the tests adopted by these judges if it became necessary to decide whether a giv^en piece of land was held by one tenure or another, and what were the social or economic facts at the back of this distinction ? The tests which the judges applied were somewhat fluctuating and uncertain. They sometimes took some particular incident and treated it as presumptive evidence of unfree tenure. The incident most usually taken is Merchet — the fine paid for leave to give a son or daughter in marriage.^ Other incidents were the liability to tallage,^ and the fact that the land descends to the youngest child. ^ But none of these tests based upon the incidents of tenure were decisive, because such incidents were found in the case of lands held by free tenure as well as in the case of lands held by unfree tenure.*^ A more satisfactory test was found in the character of the services themselves. In employing this test the judges sometimes dwelt upon the certainty or the uncertainty of the services," sometimes upon the nature of the services. When the judges talked of services which were uncertain they did not mean that the tenant's work was not fixed. As a rule it was very elaborately fixed in the manorial extent. They meant that the lord could order the tenant to do one of several things.^ The distinction which they had in their minds really corresponds to the distinction drawn in later law between the servant and the independent contractor.^ The one has the order- ing and control of the work which he is doing, the other has not. So with these different classes of tenant — the free tenant may have to perform various agricultural services not very different in kind from some of those required of the unfree tenant ; ^^ but as ^ Below 256-275 ; and see vol. ii 72-73, 376. ^ggiow 202-213. 2 Vinogradoff, Villeinage 153 ; Braction f. 208b, " Talliari autem potest ad voluntatem domini ad plus vel ad minus. Item dare merchetum ad filiam maritandam, et ita semper tenebitur ad incerta, ita tamen quod si liber homo sit, hoc faciat nomine villenagii et non nomine personas, nee etiam tenebitur ad merchetum de jure, quia hoc non pertinet ad personam liberi, sed villani." •* Vinogradofif, Villeinage 83, 163 ; P. and M. i 354-356. 5 Vinogradoff, Villeinage 157. ^Ibid 155; P. and M. i 355. ■^ Bracton f. 208b, " lUe qui tenet in villenagio, sive liber sive servus, faciet de villenagio quicquid ei praeceptum fuerit, nee scire debeat sero quid facere debeat in crastino, et semper tenebitur ad incerta; " cp. Ramsey Cart iii no. 680, and ibid pp. 283, 289, 295 for some cases of services of a mixed character. 8 P. and M. i 353, 354 ; for a specimen of a Manorial Extent see App. II. 9 Pollock, Torts (5th ed.) 75. ^^ See Eynsham Cart, i nos. 409, 467 ; Ramsey Cart, i no. 226. 32 THE LAND LAW a rule the free tenant is, subject to the necessity of performing certain definite duties, more completely the master of his time and labour. Moreover, we must not forget that, though the royal courts drew a clear distinction between holding by an un- free tenure and being personally unfree,^ in a large number of cases unfreedom of tenure and personal unfreedom went together. The villein is not master of his own time or his own person. Tenure of land in return for services which put a large part of a man's time and the ordering of his life at the disposal of another may well have seemed to connote unfree tenure. The man himself, if personally free, could throw up his holding and depart ; but while he remained he lived the life of a villein.^ The same principle is at the back of the distinction based upon the nature of the services due. A tenant whose chief services were labour services held by an unfree tenure ; a tenant who paid rent — though he performed some labour services — held by a free tenure.^ In the former case the tenant was but a unit in the agricultural organization of the manor. He was simply one of the hands by means of which the lord's demesne was cultivated. In the latter case the tenant was in the position of a man who is engaged on a venture of his own. It is true indeed that even from the free tenant the system of agriculture in vogue demanded much communal action.^ It is true that the jurisdic- tional and police powers sometimes annexed to the manor increased a communal feeling which came very naturally to a feudal age.^ But if we look simply at the facts of land tenure we can see, as Sir Paul Vinogradoff has said, that " the tenants in villeinage generally appear arranged into large groups, in which every man holds, works, and pays exactly as his fellows ; so that when the tenements and services of some one tenant have been described we then read that the other tenants hold similar tene- ments and owe similar services. On the other hand, the free- holds seem scattered at random without any definite plan of arrangement, parcelled up into unequal portions, and subjected to entirely different duties. One man holds ten acres and pays 3s. for them; another has eight and a half acres and gives a pound of pepper to his lord ; a third is possessed of twenty-three acres, pays 4s. 6d., and sends his dependants to three boon-works ; a fourth brings one penny and some poultry in return for his one 1 Vol. ii 264-265, 577. 2 Bracton f. 208b, " Si autem villanus fuerit, omnia faciat et incerta tarn ratione villenagii quam personas, nee liber homo, si sic tenuerit, contra voluntatem domini villenagium retinere poterit, nee ipse compelli quod retineat nisi velit," 3 P. and M. i 354 ; in the eleventh century we get a similar distinction betweoi socmen and villeins, Vinogradoff, English Society 439. 4 Vol. ii 56-61, 376-377. 5 Vol. i 184-186; vol. ii 381-384. FREE AND UNFREE TENURE 33 acre. The regularity of the villein system seems entirely opposed to the capricious and disorderly phenomena of free tenure." ^ The royal courts had confined the political influence of feudal jurisdiction within the narrow bounds of the manor.^ When they had assumed jurisdiction over all lands held by free tenure they may well have thought that enough had been done. It may well have seemed that to extend this jurisdiction further would, by depriving landowners of proper control over the working of their estates, have created great difficulty in their management ; and the disputes between tenants and their lords on the manors of the ancient demesne prove that such a view would not have been groundless.^ Even in the nineteenth century the legislature thought that it was " much too delicate a matter " to interfere as between the stewards of manors and their lords.* For these reasons we can see that at the back of the vague and sometimes contradictory criteria applied by the royal courts to distinguish free from unfree tenure there was, in the thirteenth century, a broad basis of social and economic fact. This fundamental division in the economic ordering of society in the thirteenth century was given a prominence and a per- manence by the procedural rule which the royal courts based upon it. Consequently its effects on the land law lasted long after the facts upon which it was originally based had changed. Labour services were commuted for money payments. Tenants who held by an unfree tenure got the protection of the royal courts. A definite body of law relating to land held by unfree tenure — not wholly unaffected by the common law relating to lands held by free tenure — gradually emerged. Tenure in villeinage was replaced by copyhold tenure ; ^ and with the disappearance of the older tests, the conveyancing test of our modern law makes its appearance. But, owing to this procedural rule made in the thirteenth century, lands held by unfree tenure had remained outside the sphere of the real actions, and only came under the ^ Villeinage 334, 335 ; Bracton's Note Book case 1210 gives a very good illustration of the various tests employed to distinguish free from unfree tenure. In that case the jurors found that Roger paid 2S. a year, did two works in the autumn, the lord finding food, and gave two fowls at Christmas, " et manducabit cum domino suo ; " and that neither he nor his ancestors had paid merchet nor tallage. Thomas (the lord) admitted that other tenants did all manner of villein services. Therefore " Quia nullum servicium facit nisi predictos denarios et servicia nominata nee dat merchetum pro filia nee talliatus est, ideo consideratum est quod tenuit libere." 2 Vol. i 179-180. 2 Vol. ii 378 ; below 204. ^Watkins, Copyholds (4th ed. 1828) ii 454, tells us that, "Some few years ago there was a design of bringing a Bill into Parliament for regulating the fees of Stewards of Manors, but the Legislature thought it much too delicate a matter to interfere in, and the design was dropped " (cited Webb, Local Government, Manor and Borough 71 n. i). ^ Below 206. VOL. III.— 3 34 THE LAND LAW direct influence of the royal courts two centuries later than lands held by free tenure. The resulting differences in substantive law have made the distinction between free and copyhold tenure fundamental in our modern land law. Free Tenure and Chattels Real The real actions were denied alike to the unfree tenant and to the man who held for a term of years ; and therefore the interest of the lessee for years, like the interest of the unfree tenant, falls apart from the law relating to the free tenures. But the ground upon which these remedies were denied to the lessee for years was very different from the ground upon which they were denied to the unfree tenant. The denial of these remedies to the lessee for years was not, in the first instance, founded upon any great social or economic division. It was founded, as we have seen, upon an arbitrary and unfortunate application of Roman doctrines of possession.^ We shall see that the subse- quent history of the lessee for years is very different from that of the unfree tenant The interest of the latter is gradually absorbed into the law of real property under the name of copy- hold tenure. The interest of the former becomes a chattel real and remains personal property. § 3. The Free Tenures and their Incidents The Free Tenures (i) Frankalmoin. " Tenant in frankalmoin is, where an abbot or prior, or another man of religion, or of holy church, holdeth of his lord in frankal- moin, that is to say in Latin, in liberam elemosinam, that is, in free alms."^ The word eleniosina means simply charity; and in Domesday Book land given for a charitable motive, e.g. to a blind man, is said to be given in elemosina.^ But, as we have seen, by far the most frequent donees of land given out of charit- able motives were churches and monasteries.^ A gift, therefore, in elemosina comes to mean a gift to a religious person or body.^ But the land, though given directly to the religious person or 1 Vol. ii 205. 2 Litt. § 133 ; cp. Y.B. 30, 31 Ed. I. (R.S.) 484 for a curious case of a gift to an individual for life, remainder to the church. The land was not held in frankalmoin till the life dropped. 3 P. and M. i 219, 220, citing D.B. i 293, and iv 466. 4 Vol. ii 68-69. ^ P. and M. i 220, 221, ♦' In the twelfth century, the century of new monastic jOTders, of lavish endowments, of ecclesiastical law, the gift in free, pure, and perpetual alms bas a well-known meaning." THE FREE TENURES 85 body, was regarded as given, through it, to God and the saints.^ The donor no doubt expected spiritual benefits from the prayers of the donees ; but as the land was primarily regarded as given through them to God, no very definite enumeration of the services expected could be made, and no oath of fealty could be required. It did not, however, always follow that the land in the hands of the donees owed no services of a secular, tangible sort Land so given might be, and in many cases was, given by a mesne lord.^ That lord might owe military service, or rent, or labour services for the land. The mere gift could not free the land from liability to perform these services. To effect this there would be need of the consent of the donor's lord. Therefore for land held in frankal- moin secular services were often due, and might be performed either by the donor or by his donee in frankalmoin according to the bargain made between them at the time of the gift.^ More- over, it was not impossible that even as between donor and donee some secular service might be reserved if the gift was only in " free and perpetual alms," and not in " free, pure, and perpetual alms."* In the twelfth and thirteenth centuries the characteristic which distinguished tenure in frankalmoin from other tenures was, not so much the absence of secular service, as the fact that jurisdiction over land so held belonged to the ecclesiastical courts. But we have seen that by the end of the thirteenth century this test was no longer applicable.^ The jurisdiction of the ecclesias- tical courts over land was limited to consecrated land or buildings.^ The king's courts had assumed a jurisdiction over land held in frankalmoin as exclusive as that assumed by them over land held by any other free tenure. What then was the distinguishing feature of this tenure? It was the tenure by which religious persons or bodies held land ; but the fact that land was so held afforded no proof of its existence, because such persons or bodies held land by many different tenures. A better test was found in 1 Bracton f. 12, " Primo et principaliter fit donatio Deo et ecclesiae . . . secundario canonicis vel monachis vel personis ; " the saint is a landowner and in that capacity may be guilty of trespass — so it is written in Domesday Book concerning Sanctus Paulus, D.B. ii 13, cited Ballard, Domesday Inquest 92. 2 P. and M. i 223, 224. 3 Ibid i 224 n. i ; cp. Y.B. 12 Rich. II. 178 — a prior holding of W. in frankalmoin Compels W. by writ of mesne to acquit him of the services which W. owes to his lord the Earl of Salisbury. ^Bracton's Note Book case 21, land was demised to a parson, reserving twelve pence of rent, three ploughings and ditchings, and twenty-one shillings' worth of scutage; the court of Common Pleas says, "plures terrae datae sint in elemosinam ecclesiis quarum quadam datae sunt in liberam puram et perpetuam elemosinam, ilia scilicet que nullum faciunt servicium, alia in liberam elemosinam tantum, scilicet ilia que faciunt servicium quod ad terram illam pertinet ; " Eynsham Cart, i no, 25 (1213-1225) reservation of half a pound of cumin, '♦ salvo servitio domini regis." ^ Vol. ii 305. " Vol. i 630. 36 THE LAND LAW the fact that it was land held with no obligation of fealty, in return for services of a general character due to God — services which, not being capable of enforcement by ordinary processes of law, were only capable of enforcement by spiritual censures ; and this absence of secular service is the test adopted by the law and stated by Littleton.^ But there was one difficulty about adopting this test. What was to be the position of lands in which some definite service was reserv^ed ? If the definite service was of a secular kind, like that mentioned in the case cited from Bracton's Note Book,^ the tenure would no doubt be classed as one of the other free tenures — probably socage. If it was of a spiritual kind it was called tenure by Divine Service} In this case fealty was due to the lord, and he could distrain if the services were not done, " because the divine service is put in certain by their tenure which the abbot or prior ought to do." "* The effect of Edward I.'s legislation was to make tenure in frankalmoin a tenure of diminishing importance, (i) The Statutes of Mortmain ^ prevented indiscriminate grants of land to the re- ligious. (2) If a religious house alienated land to a secular person the land ceased to be held by this tenure, because no secular person could hold by it.^ On the other hand, the Statute of Quia Emptores ^ prevented any person from granting lands in fee simple so that the lands were held of him. If therefore a tenant by knight service got a licence in mortmain and made a grant to a religious house, that house held, not of the grantor in frankalmoin, but of the grantor's lord by the same knight service as that upon which the grantor had formerly held.^ (3) In the instance just given the grantee could not hold of the grantor's lord in frankalmoin, even if the lord were willing that he should so hold ; for it was laid down that lands could only be held in frankalmoin of the grantor or his heirs.® Thus, if an abbot held by this tenure of a mesne lord, and the mesne lord died without heirs, the abbot could not hold by this tenure of the lord para- mount. He held of such lord by fealty.^" As Littleton says," 1 Litt. §§ 135, 136 ; Y.B. 33-35 Ed. I. (R.S.) 206 per Bereford ; " libere et quiete sicut elemosinam decet," Eynsham Cart, i nos. 85a, 87, 2og. 2 Above 35 n. 4. ^ Litt. § 137, «« Such tenure shall not be said to be tenure in frankalmoin, but is called tenure by divine service. For in tenure in frankalmoin no mention is made of any manner of service ; for none can hold in frankalmoin, if there be expressed any manner of certain service that he ought to do, etc. ; " cp. Y.B. 13, 14 Ed. III. (R.S.) 282, 284. 4 Litt. § 137. 5 Vol. ii 348-349 ; below 86-87. « Litt. § 139. 7 Vol. ii 348 ; below 80-81. 8 Litt. § 140 ; Y.B. 12 Ed. IV. Pasch. pi. 7 (p. 4). '♦Y.B. 3 Ed. XL (S.S.) i6g, 170, "Frankalmoin is of such a nature that the tenant can never attorn away from the feoffor nor from his heirs ; " Y.B. 13, 14 Ed. in. (R.S.) 266, 268. 10 Litt. § 141 and Y.B. 13, 14 Ed. III. (R.S.) 282. " § 140. THE FREE TENURES 37 except in the case of a grant by the king, " none can hold in frankalmoin, unless it be by title of prescription, or by force of a grant made to any of his predecessors before the same statute (Quia Emptores) was made." This stamps it as a stationary and a gradually decaying tenure. (ii) Knight Service. It is possible that a person who had not read anything about tenure by knight service except the account given by Littleton would wonder how the tenure got its name. He would read much of such incidents of the tenure as wardship and marriage ^ — but nothing of military service. He would learn indeed that such tenants paid " escuage " if they did not perform in person the duty of castle guard ; ^ but he might wonder why this pay- ment of escuage was treated differently from the payment of rent which was due from the socage tenant. It is true that if he turned to Littleton's chapter on Escuage he would learn that it was a money payment connected with the Latin Scutagium, and that it was " commonly said " to represent the personal military service originally due from the tenant to the crown. But he would also learn that the amount which could be levied as escuage was dependent upon parliamentary assessment ; and, seeing that the military service was due to the king, he might wonder why escuage was apparently a payment made by the tenant to his mesne lord.^ The difficulties which arise in understanding Littleton's account of tenure by knight service show that by the fifteenth century it had lost its original meaning. In fact, it had become merely a part of the law of property. But it had once been far more than this. Tenure by knight service was the typical tenure of the feudal system, and, as we have seen, the feudal system was far more than a system of land tenure.^ In the twelfth century a tenant holding by this tenure often filled a public position of no mean importance. His military service (in theory) protected the state. ^ He was entitled to a voice in the commune concilium.^ He had or claimed to have jurisdiction over his tenants.'' But the development of the art of war, the growth of a centralized iLitt. §§ 103-111, 114, ii6. 2 §111. ^ § 95, " Escuage is called in Latin scutagium, that is service of the shield ; and that tenant which holdeth his land by escuage holdeth by knight service ; " § 97, " It is commonly said that the escuage shall be assessed and put in certain ; scil. a certain sum of money, how much every one which holdeth by a whole knight's fee, who was neither by himself nor with any other with the king, shall pay to his lord of whom he holds the land by escuage ; " see also §§ 100, 10 1. •»Vol. i 17, 18. 5 See Vinogradoff, English Society 190, 191 for the old idea that land held by such persons in demesne was not liable to geld. ^ Magna Carta {1215) c. 14. ' Vol. i 25-26, 176-178. 38 THE LAND LAW government, and the successful competition of the royal courts had gradually diminished the importance of this tenure in public law. The inefficiency of the feudal levy for any prolonged campaign had soon become apparent, and tenure by barony ceased to be a title to a seat in the House of Lords. ^ The tenant by knight service found his remnant of jurisdiction of little avail, and was often glad to avail himself of the superior processes of the courts of common law. The same causes which destroyed the political influence of feudalism necessarily destroyed the old meaning of tenure by knight service. The old state of society in which it had once flourished had disappeared, leaving, as we have seen, a few archaic survivals in our public law,^ and in our private law leaving this tenure in the position described by Littleton. It had been reduced to this position by complicated and still ob- scure processes, the outlines of which I must now endeavour to trace. It is fairly clear that William I. enfeoffed his followers with tracts of English land, and placed them under the obligation of performing in return a certain amount of military service. This military service was the service due {servitium debitum) for the land so granted.^ The arrangement thus made was the origin of tenure by knight service in the form in which that tenure was known to the common law. Existing records show that the large landowners, both lay and ecclesiastical, owed for their lands a definite quota of knights. The time for which the knights were required to serve seems to have been early fixed at the period of forty days.* But as to the exact number of the knights which each must produce there was often some uncertainty. "The amount," says Mr. Round, "of the servitium debitum was a matter of custom and tradition, and could not usually be deter- mined by reference to written grants or charters." ^ In a great many of these cases the tenant had been enfeoffed since the Conquest, perhaps without charter.^' But as a rule the number of knights due is found to be some multiple of five or ten. The ^Vol. i 357 and n. ii. - See vol. i 179-187 for the manorial jurisdiction of later law. ^ Vol. ii 169. ^ For a possible explanation of the " forty days " see below 40 ; as Maitland says, it existed " rather in theory than practice, and its theoretic existence can hardly be proved for England out of any authoritative document; " but it was known in Normandy both before and after the Conquest, Haskins, Norman Institutions 20, 21. ° Feudal England 257, citing some returns made to the inquest of 1166, e.g. William fitz Alan's tenants assert " that his Norfolk fief non debet domino Regi nisi i militem . . . ut antiqui testantur ; that his Shropshire fief non debet Regi nisi x milites in exercitu . . . sicut antiqui testantur ; and that, as to his Wiltshire fief, non sumus certi quod servitium debeat Regi de hoc tenement©. " 8 Provisions of Westminster 1259 § i (Stubbs, Sel. Ch. 401) ; Round, loc cit. 258 ; Vinogradoff, English Society 227. I I THE FREE TENURES 39 reason for this is, Mr. Round thinks, that the unit of the feudal army in England was a constabularia of ten knights. This unit appears in the reigns of Stephen and Henry II., and was familiar to the Normans in Normandy.^ Thus by the deliberate acts of the first Norman kings the vague conditions of land-holding prevailing in the country were given a new and a definite form. Tenants in chief now held of the crown by a definite military service, and all the incidents of that tenure familiar to the Normans were introduced, as Henry I.'s charter shows. At the same time it is probable that, just as feudal jurisdiction was nothing very new to the older inhabitants, so land-holding on such conditions did not appear to them to be a very strange thing. They were, as we have seen, accustomed to connect with land ownership both military service and the right to exercise private jurisdiction. What was new was the substitution of one definite principle for the older confusion caused by lack of such one definite principle.^ The king's relation was solely with his tenants in chief. It was no concern of his what they did with their land so long as they produced their knights when liable to do so. It was, of course, the policy of the Norman kings to emphasize the fact that they were not only the lords of tenants, but also the kings of subjects.^ Thus they insisted, and insisted successfully, that military service was due to no one but the king, though no such rule as this was known in Normandy.* But, as we might expect, it is their capacity of lords of tenants that appears to predominate in their relations to their tenants by knight service. This is very clearly put by Mr. Round. " Making every allowance," he says, " for the policy of the Conqueror in insisting on the direct allegi- ance of the under-tenant to the crown . . . the fact remains that what we may term the * military service ' bargain was a bargain between the crown and the tenant in chief, not between the crown and his under-tenants." ^ The tenant in chief was responsible to the king for his service, which he could perform either by ' Feudal England 259, 260. ^Vol. ii 74, 169-170; vol. i 24-25. 3 P. and M. i 249. ^Ibid 243 ; hence military service was par excellence "forinsec" (vol. ii 200) — it was always due to the crown. 5 Feudal England 248 ; cp. Ramsey Cart, ii nos. 474, 476 for the arrangements made by the abbot for the performance of his military service in 1244 and 1243 ; for the number of knights enfeoffed by him in 1184-1189 see ibid iii nos. 548, 581; it appears (no. 548) that with the knights there were enfeoffed, " Multi frankelarmi, quorum quidam tenent dimidiam hidam, quidam plus, quidam minus, et debent et Solent adjuvare milites ad servitium faciendum;" the knights themselves served in turn, cp. ibid ii nos. 474, 476, and ibid iii no. 550, " secundem consuetudinem ab- batiae ; " for a statement of this custom see ibid iii no. 556 ; for the procedure to elect the knights to serve see Select Pleas in Manorial Courts (S.S.) 61, 63, 64, 77, 78, 80, 84. 40 THE LAND LAW enfeoffing mesne tenants, or by hiring knights, or in any other way he chose. Probably in the first years after the Conquest this military tenure was really military. The Normans were a small army of soldiers in a hostile land, and it was to the tenants in chief and to their Norman mesne tenants that the king looked to put down English insurrections. But even when tenure by knight service really was a military tenure it is probable that the tenant could perform his service either by paying a substitute or by making a money payment to the person to whom the service was due. This payment is known as scutage^ in later law. Mr, Round tells us that " payment in lieu of military service, which was the essential principle of scutage, was (in Henry II.'s reign) no new thing. The two forms which this payment might assume — pay- ment to a substitute or payment to the crown — both appear in Domesday as applicable to the fryd. . . . From the very com- mencement of knight service the principle must have prevailed, for the ' baron ' who had not enfeoffed knights enough to dis- charge his servitium debitum must always have hired substitutes to the amount of the balance. ... It should be noted as a suggestive fact that the forty days of military service, though bearing no direct proportion either to the week or to the month, do so to the marc and to the pound. The former represents 4d. and the latter 6d. for each day of the military service." ^ If there is any connection between the " forty days " and the marc or pound it would seem that from a very early date military service was regarded as capable of expression in terms of money. If it were necessary to consider only the relations between the king and his tenants in chief the commutation of military service for money would present fewer difficulties. But we must consider also the relation of the tenant in chief to his mesne tenants. The tenant in chief owed his service to the crown ; the mesne tenants owed their services to their lord. The former must produce his quota of knights or pay the king ; the latter must serve or pay their lord. It is possible that if a tenant in chief enfeoffed more knights than the quota he owed to the king, he could pocket the amount they paid him in commutation of the military service which they owed to him and he did not owe to the crown.^ It is certainly clear that we must distinguish the ' Scutage is sometimes used to cover other payments, e.g. the aids (below 66-67) to which the lord was entitled, 2 Feudal England 270; see Vinogradoff, English Society 15, 16 for the current rates of pay at different dates. 3 Red Book of the Exchequer (R.S.) ii clviii, "In extreme cases, indeed, as in that of the military service prevalent in Normandy, the tenant in chief would be en- titled to receive a contribution from his own men of much greater value than that which he tendered to the crown ; " P. and M, i 244. THE FREE TENURES 41 service due by the tenant in chief to the crown, or the money paid in commutation of this service, from the money paid by the mesne tenant to his lord in commutation of similar service. The first is a fine of an indeterminate amount,^ to which tenants in chief of the crown ut de corona ^ were liable. The second is the fixed sum due from mesne tenants to their lord ; and it is this sum which comes to be known as scutage. Madox ^ saw this distinction. It is perhaps most clearly brought out by Mr. Hall- in his introduction to the Red Book of the Exchequer.* " The real meaning of scutage," he says, " is derived from the appear- ance of the tenant in the king's army, as certified by the Scutage Rolls of the Marshal, in order to qualify himself by force of the king's writ ' to have his scutage ' ^ on his return, by way of an authorized levy upon his own sub-tenants. In this aspect the great bulk of scutage was actually collected by the tenant and not by the crown, and there is really no evidence that the current scale of one marc or two marcs [on the knight's fee] . . . was assessed for the purpose of receiving the commuted service of the lord, rather than to enable the latter to ascertain the amount that he would be authorized in levying from his sub-tenants. . . . The constitutional doctrine prevailed, unshaken by any lax excep- tions, that the tenant in chief must perform his due service, the v^alue of which far exceeded in all times the average value of scutage. Indeed, when personal service really fell into disuse in the thirteenth century, the value of the equivalent is seen in the immense fines paid by the military tenants *ne transfretent.' . . . The proper view to take of the whole question would seem to be this : (i) That the tenants in chief rendered personal service, or a more or less real equivalent in the shape of payment of a deputy, promissum, donum, fine, or simply ' scutage,' but not necessarily the latter alone as a sufficient commutation in all cases. (2) That the tenant in chief who had thus satisfied the requirements of the crown might or might not obtain in turn facilities for recouping himself by the levy of scutage from his sub-tenants at a proportionate rate." Of the manner in which many pressing questions of practical politics were intimately bound up with the various problems and the rival interests involved in tenure by knight service we may ^ P. and M. i 247; see Ramsey Cart, iii no. 510 for a list of these sums paid by the abbot in 1313 and 1314. -A tenant " ut de corona" held by direct grant from the crown : a tenant "ut de honore " held of the crown, but only because the lands of his mesne lord had come to the crown by escheat ; generally speaking such a tenant, though holding in capite, was in the same position as a mesne tenant, Magna Carta (1215) c. 43 ; Challis, Real Property 4 n. ^Exchequer i 652, 657. ^ii clviii, clix ; see E.H.R. xxxvii 321-324. ^ See App. Ia (5) for the writ. 42 THE LAND LAW read at large in our constitutional histories. We are here in- terested in the effects which the policy pursued by the king and by the greater tenants in chief produced upon this tenure. It is to such political or constitutional events that we must look for an explanation of the curious form which, as we have seen, it ultimately assumed. These events can be conveniently grouped under the two heads of royal policy and the growth of Parliament. (a) Royal policy. Henry II. dreaded, not national rebellions, but feudal disorder. In consequence his policy was, in all de- partments of government, anti-feudal. We have already seen that his royal courts began the process of subtracting jurisdiction from the feudal courts ; and it is clear that to suppress disorder he needed a disciplined band of paid soldiers. It was therefore to his interest to push much further than had been done before the policy of commuting military service for money payments. For other reasons the tenants in chief themselves found it to their interest also to accept money payments from their mesne tenants instead of military service. In a more orderly state of society money was more useful than armed retainers. Moreover, the free dealing with land which, as we shall see, was encouraged by the royal courts ^ was making personal service impossible. Knights' fees were so split up that the service due could only be expressed in terms of money. ^ Both the king and the tenants in chief therefore favoured commutation. The tenant in chief paid the king a sum which neyer seems to have been definitely fixed.^ The king allowed the tenant in chief who had paid to levy scut- age from his mesne tenants.^ As we might expect, Henry II. was careful that, in the process of commutation, the king's in- terests did not suffer. We have seen that if the tenant in chief enfeoffed more knights than he owed he might make a profit out of a levy of scutage.^ From Henry II.'s point of view such a profit was a diversion to private uses of money which should have ^ Below 77-78. 2 P. and M. i 235, "Already in Henry II.'s reign we hear of the twelfth, the twenty-fourth part of a knight's fee; in John's reign of the fortieth ; " cp. Y.B. 11, 12 Ed. III. (R.S.) 64 — knight service might be combined with the service of plough- ing and still be knight service. 3 Red Book of the Exchequer (R.S.) ii clix, "What the nature of the service or what the equivalent that was rendered by the tenant in chief to the crown we have absolutely no clear information." ^ Ibid clx, " Scutage was a contribution paid by the tenants whose service was neither expected nor desired by their lord, and had little to do with his personal service or with any special bargain with the crown for commutation thereof. In this aspect the lord appears as a sort of middleman in connection with the assess- ment of a scutage. He kept the crown informed of the exact liabilities of his sub- tenants, and contracted as it were by payment of personal service, or of a donum, ^ne, promissum, or 'scutage' for their scutages, which were thereupon recognized as his scutages." ^ Vol. ii 183-184 ; above 40. ll THE FREE TENURES 48 helped to defray the cost of national defence. It was for this reason that in 1 166 he required all tenants in chief to inform him (i) how many knights had been enfeoffed before the death of Henry I. ; (2) how many had been enfeoffed since ; (3) how many remained to be enfeoffed to satisfy the service due for the land. When the returns were sent in the king could see whether his tenants had enfeoffed more knights than were required to fulfil the service due for the land. If he found that they had enfeoffed more, he increased the service due to that extent.^ Though, therefore, the king had no direct interest in the scutages due from the mesne tenant to the mesne lord he was determined that the mesne lord should not appropriate to himself all the increase in profits — all the ** unearned increment " — of the land ; and it is easy to see that such a policy tended to stop the growth of this tenure, because it meant that the mesne lord could get no profit out of either the military service or the scutage taken in lieu thereof.^ In course of time the direct interest of the king in the scutages payable by the mesne tenants tended to increase. From Henry III.'s reign onwards the tenants in chief sometimes granted to the king the scutage of their tenants.^ The king then levied the scutage through the sheriff" just as if it had been a national tax. In fact, the decay of feudal jurisdiction made it increasingly diffi- cult for a lord to collect his scutage without the aid of the sheriff".^ If lands escheated to the crown, the tenant held these lands from the crown ut de honor e} The scutages formerly payable to the mesne lord were now payable to the king.^ If the king made a grant of a manor to be held of himself by knight service, the grantee was answerable for scutage ; but he could not exact such scutage from the tenants of the manor if they had not rendered military service to the king when part of his demesne.^ The ^ Round, Feudal England 236-246; to take an example at p. 242, Walter de Aincurt returns 24 fees de veteri, 5 de novo, and 11 super dominium. In 1168 the Exchequer records him as paying on 35 fees de veteri and on 5 de novo. =^Red Book of the Exchequer (R.S.) ii ccxxxv, vi, " In Normandy, as elsewhere on the continent, this custom [of enfeoffing more knights than were needed to perform the servitium debitum] receives its chief encouragement from the prevalence of private warfare. In England it seems to have been used chiefly as a means of seignorial ex- tortion, which was practically interdicted in the reign of Henry II. by the simple device of rendering the tenant in chief liable for scutage on one and all of his impro- vident enfeoffments, . . . We have in the next century the strange spectacle of a distraint of knighthood to restore the shrunken proportions of military service." s Ibid clx ; Stubbs, C.H. ii 64 n. 2. ^ Madox, Exchequer i 675, 679, 680 n. m ; in a note in Y.B. 33-35 Ed. I. (R.S.) 234 the need for such a writ in all cases seems to be assumed ; similarly the lord could take proceedings in the king's courts to collect his aids, below 66. ^ Above 41 n. 2. ^ Madox, Exchequer i 652, citing two cases of Edward II.'s reign. ' Ibid 678 n. i. 44 THE LAND LAW ultimate effect of the statute Quia Emptores was to increase the number of persons who held directly of the king — to increase therefore the number of cases in which the king was directly entitled to scutage. For these reasons scutage becomes far more important than the fines payable by the original tenants in chief for not performing their servitiuni debituni. Scutage is mentioned specifically by Littleton, and by the Act which abolished tenure by knight service in Charles II.'s reign ; ^ whereas there is hardly a hint in either place of the fines payable by the tenant in chiefs One of the last references to the personal liability of tenants in chief seems to be in an Act of i 503 which provided that persons having lands of the king's gift should forfeit them if, with- out reasonable excuse, they omitted to " geve theyr dayly attend- aunce in their persones upon his Highnesse when he shall fortune to goo in Warres within this his Realme or elsewhere ... in his personne." ^ But this was a different and a less onerous liability, as it did not apply to tenants who had purchased their lands of the king.^ It is no doubt for these reasons that it came to be thought that scutage had always been merely the sum paid by all tenants by knight service — ^whether tenants in capite or mesne tenants — as commutation for their military duties. As we have seen, this came to be substantially true by a very gradual process, but we shall now see that even before this process was complete, scutage had ceased to be levied for reasons now to be considered. {U) The growth of Parliament. The inquest of 1 166 showed, as we have seen, that the king wished to share any surplus profits made by his tenants in chief The Charter of 1215^ introduced a clause which limited the king's rights in this respect. For the future no scutage was to be imposed, " nisi per commune concilium." This clause was not repeated in the reissue of the charter in 1216 ; but in 1 217 it was provided that scutage should be taken " sicut capi consuevit tempore Henrici regis avi nostri." ^ But in fact consent to a levy of scutage was usually asked ; ^ and when the constitution of Parliament became fixed, Parliament claimed to exercise the same control over the levy of scutage as it claimed to exercise over the other forms of direct taxation.^ As a result ^ 12 Charles II. c. 24. ^ § 2 of the statute mentions " tenure by homage, escuage, voyages royal, and charges for the same ; " it may be that the term " voyages royal " is a reminiscence of these payments ; cp. Litt. § 95. 3 R.P. vi 525-526 (19 Hy. VII no. 4). * Ibid 526. " § 12. « § 44 ; Stubbs, C.H. ii 28 n. 2. ' Ibid 28 n. 2, 32 n. i, 64. « Ibid 569, "The scutages so frequent under John and Henry III. had ceased to be remunerative. The few taxes of the kind raised by Edward I. seem to have been collected almost as an afterthought, or by a recurrence to the old idea of scutage as commutation for personal service . . . The scutages of the 28th, 31st, and 34th years of the reign appear so late in the reign of Edward II. as to seem nothing better than a lame expedient for pecuniary exaction ; " see E.H.R. xxxvii 324 seqq. THE FREE TENURES 45 scutage seems to have been superseded by other and newer forms of taxation. There is one instance of its levy in Edward II.'s reign, and another in Edward III.'s reign. ^ It was remitted in 1385 by Richard 11.^ After that we hear no more of it except its formal abolition in 1660.^ Thus by the fourteenth century tenure by knight service had ceased to provide either soldiers or their pay. The armies which fought in the Hundred Years' War were armies of paid soldiers, raised by contracts made between the crown and the great nobles.'* The money payments for which the actual military service had been commuted had come to depend on parliamentary grant. Their amount was not sufficient to keep on foot an army for foreign war ; and Parliament preferred, and in fact was obliged, to raise the money required for such an army in other ways. " If," says Maitland, " tenure by knight service had been abolished in 1 300 the kings of the subsequent ages would have been deprived of the large revenue that they drew from wardships, marriages, and so forth ; really they would have lost little else." ^ The history of tenure by knight service is, as I have said, a history of the gradual disappearance of the elements in it which once gave it importance in public law, and of its gradual conver- sion into a form of land-holding and nothing more. It is because its history has taken this course that English law, although it knows a barony or an honour, knows no tenure by barony.^ The baron paid a higher relief ; ^ but except in that one point there is nothing to distinguish his tenure from tenure by knight service. From the first it was not the quality but the size of the holding which distinguished the baron from other tenants in chief of the crown. No doubt a holding of a certain size in 1 2 1 5 entitled the baron to an individual summons to the commune concilium. But as tenure of land came to be more and more a matter of private law merely, the barony by tenure came to look more and more anomalous, and as we have seen, it finally disappeared.^ From this point of view its disappearance is a phenomenon of the same kind as the disappearance of the military duties involved in tenure ^ See P. and M. i 232 n. for a list of scutages levied. ^^ Stubbs, C.H. ii 569. 3 12 Charles II. c. 24 § 2. * Stubbs, C.H. iii 582, 583. ^ p_ and M. i 256. " Ibid 259 ; on the whole subject see Tait, Manchester 182-197 5 ^^^ the honour " see Vinogradoff, English Society 348, 349. ' Below 60. ^ Vol. i 357 and n. 11. In early days the honours and baronies were kept intact :ause, as Challis says, to have severed them '• would have disarranged both the )litical and the military organization of the kingdom," Real Property 5 n. How- ler, this was occasionally done ; see instances from the reigns of Henry II. to Edward I., Madox, Bar. Angl. 44-50. In later days, when this reason ceased to ^pply, when such tenure became merely a matter of land-holding, " land-baronies ^ere divided and subdivided till at length they were brought to nought," ibid 59. 46 THE LAND LAW by knight service. Both illustrate the passing of the feudal ideas which connected the government of the state with the holding of land. (iii) Serjeanty. Serjeanty means service. The serjeant means primarily one who serves. As we have seen, those who follow and serve the law are the serjeants-at-law. Tenure by serjeanty means, there- fore, tenure by service. All the tenures imply service of some sort. Indeed, the whole of mediaeval society is held together by the services of tenants — the church is endowed, the kingdom is defended, the land is cultivated. But that which distinguishes the service of one who holds by serjeanty from the service of one who holds by the other tenures is the fact that the service of the Serjeant is a pre-eminently personal service. We at the present day sometimes use the term " service " to mean the calling of the domestic servant — we talk of going into service — though we know well that all employment involves service. When we use the term " service " in this restricted sense we mean to emphasize the same personal or domestic character of the employment as the lawyer of the twelfth and thirteenth century emphasized when he talked of tenure by serjeanty.^ The tenants by serjeanty are no doubt the descendants of the servientes of Domesday Book, who held land in many counties as the servants, in many capacities, of the king and the great nobles ^ — in so many capacities that Domesday Book rarely states the precise nature of their services.^ By the end of the twelfth cen- tury we can see from Glanvil that the tenure of the serviens has become the special tenure by serjeanty ; ^ and, even when the personal service due from other tenants had become a thing of the past, the personal character of the service due from the Serjeant, or serviens, remained, and accounted for many of the peculiar features of the tenure as it existed in the thirteenth cen- tury. Thus the service could not be commuted for a money payment, and therefore no scutage was due.^ The land held by serjeanty, because it was held in return for personal service, used ^ P. and M. i 262, 267. 2 Ibid 268, 269, " Among the Wiltshire Servientes are three chamberlains (camerarii), a hoarder [granatarius), and a cross-bowman (arbalistarius) ; else- where are an archer, an usher, a goldsmith, a baker, a bedchamber man . . . there can be little risk in finding the ancestors in law of Bracton's rod knights, and the abbot of Ramsey's ridemanni in the radchenistres and radmanni of Domesday Book." 3 Ballard, Domesday Inquest 105 ; cp. Vinogradoff, English Society 60-62 ; see ibid 72-74 for the " Francigenae " class of servientes, who were chiefly of the military sort. ^ Vol. ii 201. ^ Litt. § 158 ; cp. McKechnie, Magna Carta 55-56. THE FREE TENURES 47 to go back to the donor when the tenant died ; and though in the thirteenth century such land descended to the heir, we can see a reminiscence of the older idea in the fact that the relief was arbitrary.^ When hereditary succession was allowed, the land was never partitioned — even when daughters inherit — because such personal service cannot be partitioned.^ Though the tenants of lands held by other tenures acquired the right to alienate, lands held by serjeanty long remained inalienable.^ In such rules as these we see not only striking illustrations of the meaning and character of this tenure, but also the survival of older ideas which once shaped some of the incidents of the other tenures — especially tenure by knight service — in the days when the services due for land were really personal services, and not merely the perform- ance of duties which could be performed by deputy or commuted for a money payment. In the twelfth and thirteenth centuries tenure by serjeanty still covered a wide field. Lands were held by this tenure both of the crown and of mesne lords,^ and the services reserved were very various. We may divide these services into two main classes — those which were not military and those which were military. The non-military class. Of the non-military serjeanties we must place first the various species of service owed to the king by his tenants in chief holding by this tenure. Among these tenants the great officials of the kingdom or the royal household, who held the great hereditary serjeanties, take the first place. " Tenant by Grand Serjeanty is where a man holds his lands or tenements of our sovereign lord the King by such services as he ought to do in his proper person to the King, as to carry the banner of the King, or his lance, or to lead his army, or to be his marshal, or to carry his sword before him at his coronation, or to be his sewer at his coronation, or his carver, or his butler, or to be one of the chamberlains of the receipt of his Exchequer, or to do other like services, etc." ^ ilready in the thirteenth century they were regarded rather as >nferring dignity than as involving service. In 1236, when [enry III.'s queen was crowned, there was much dispute among le magnates as to who was entitled to bear a sword before the ^ Bracton f. 84b ; it had become fixed by 1410, Y.B. 11 Hy. IV. Trin. pi. 9, cited and M. 270 n. 3 ; Litt. § 154. 2 P, and M. i 270 n. 4. sjbid 315, 316. *Ibid 265; Bracton f. 35b, "Item poterit quis feoffare alium per serjanteriam lae quidem multiplex esse poterit et unde quaedam pertinent ad ipsum dominum iffantem, et quaedam ad ipsum regem," 6 Litt. § 153. 48 THE LAND LAW king, and as to who was entitled to act as his seneschal.^ We see the causes at work which will give to these honourable services a longer life than the actual tenure. Besides these great Serjeants many tenants held by the tenure of doing an almost infinite variety of humbler services. There are serjeanties con- nected with hawking and hunting, with the forests, with carrying duties, with bee-keeping, with agricultural duties, with eating and drinking, with the washing and drying of clothes, with various branches of the civil service.^ In fact, the list of serjeanties com- prises most of the needs of the royal household, and many of the needs of the government of the state. What the king does the magnates imitate. Their personal needs, and the staff required to administer their estates, were supplied by letting lands to be held by serjeanty. There were the servants who looked after the household accounts, the ward- robe, the kitchen, and the person of the lord ; there were the servants who looked after the agricultural arrangements of the estate ; and there were the servants who looked after the juris- dictional rights involved in the manor. ^ The importance of this class of tenants by serjeanty was very great. It is difficult at the present day, as Sir Paul Vinogradoff has pointed out, to realise this importance. "We live in a time of free contract, credit, highly mobilized currency, easy means of communication, and powerful political organization. . . . Every feature of the mediaeval system which tended to disconnect adjoining localities, to cut up the country into a series of isolated units, contributed at the same time to raise a class which acted as a kind of nervous system, connecting the different parts with a common centre, and establishing national intercourse and hierarchical relations. The libertinihdid to fulfil kindred functions in the ancient world, but their importance was hardly so great as that of mediaeval Serjeants or ministeriales. . . . The first cook and gatekeeper of a celebrated abbey were real magnates who held their offices by hereditary succession, and were enfeoffed with considerable estates. ... At every step we find in the cartularies of Glastonbury Abbey proofs of the existence of a numerous and powerful * serjeant ' class." ^ 1 Red Book of the Exchequer (R.S.) ii 756, 757 — •* Factae sunt contentiones magnae de servitiis ministerialium domus Regis et de juribus pertinentibus ad eorum ministeria." 2 Ibid 451-468, De Serjantiis in Diversis Comitatibus Angliae. * Vinogradoff, Villeinage 317-320; cp. Bracton f. 35b, " Servitia tenendi placita dominorum suorum, vel portandi brevia infra certa loca, vel pascendi leporarios et canes, vel mutandi aves, vel inveniendi arcus et sagittas, vel portandi, et de iis serjantiis non poterit certus numerus comprehendi ; " cp. Eynsham Cart, i, nos. 32S, 360, 365. 391, 453. 496, 542, 544. ^Villeinage 323, 324; for this class of ministeriales in Germany see Schulte, Histoire du Droit D'AUemagne (Tr. Fournier) 269-272. THE FREE TENURES 49 The military class. In the twelfth and thirteenth centuries the military serjeanties were as important as those which were non-military. They sup- plied the feudal army with light auxiliary troops, with attendants upon the fully-armed knights, with material for war, with " the means of military transport."^ Such services as these were due, not to the king only, but also to the mesne lord. The lord, when he went to war in person, needed Serjeants to attend upon him ; and at all times the want of an adequate police force necessitated a retinue of followers to protect person and property.^ The military service of these humbler members of the feudal army had perhaps a longer life than the military service of the tenant by knight service ; but it too disappeared. " Such a tenant ought not to go, nor do anything in his proper person touching the war." ^ It became merely a duty to supply certain small munitions of war.^ For all that the tenure retained, even then, a slightly more direct connection with war than tenure by knight service; and in the popular language of modern times the Serjeant, unlike the knight, is still connected with the army. We must now turn to the causes which led to the decay of this tenure. The system of paying servants by granting them land to be held by serjeanty was in many ways inconvenient and costly. The office and the land became hereditary. We get that confusion between office and property which was long an effectual hindrance to efficiency and reform both in the judicial and in many other departments of the state. ^ This confusion can be seen not only among the serjeanties held of the crown, but also among those held of mesne lords. "John of Norwood, abbot of Bury St. Edmunds, had to resort to a regular coup d'etat in order to displace the privileged families which had got hold of the offices and treated them as hereditary property." ^ We were not surprised, therefore, to find that in the fourteenth century there is a growing tendency to substitute the contract with the hired servant for the status of the tenant who holds by serjeanty ; and in many cases the tenure by serjeanty is turned ^ P. and M. i 264, 265 ; Bracton f. 36, " Per servitium inveniendi domino regi . . . unum hominem et unum equum et saccum cum brochia pro aliqua necessitate vel utilitate exercitum suum contingente." 2 See Bracton's Note Book case 758 — the case of the abbess of Barking, who had thirty tenants who •* solent ire cum Abbatissis vel cum senescallis suis quo ipse voluerunt ad maneria sua." As Sir Paul Vinogradoff points out, some of the "milites" mentioned in D.B. were probably tenants by serjeanty of later law, English Society 77-79 ; the Anglo-Saxon thane — the predecessor of the " miles " — really occupied this double position, ibid 403, 404. ^ Litt. § 160 ; if the duty was to find a man to go to war or to go in person the tenure was grand serjeanty, ibid § 157. *§ 159. " Small things belonging to war." ^Vol. i 246-250, 424-425. * Vinogradoff, Villeinage 325. VOL. ni.--4 50 THE LAND LAW into tenure by socage.^ Both the king and the mesne lord found it paid better to take rent for their lands and to hire servants than to enfeoff tenants to hold by serjeanty.^ It is clear that this change in the economic ordering of society tends to destroy the largest and perhaps the most powerful class of the tenants by serjeanty. As a result little was left of tenure by serjeanty except the tenure of those who held by the dignified serjeanties of perform- ing various ceremonial services for the king on solemn occasions, and the tenure of those who held by doing some service pertain- ing to war. Already in Britton's day serjeanty was specially but not exclusively connected with war ; ^ and when once this con- nection had been established it is easy to see how the idea arose that all tenure by serjeanty must be tenure in chief."* Such warlike services could, according to the established principles of English law, only be rendered to the crown. ^ Britton, who connects the services involved in serjeanty with war, seems to hint that tenure by serjeanty must be tenure in chief.^ Both these ideas had hardened into fixed rules when Littleton wrote.'' It is clear that there is a broad social line between these two surviving cases of tenure by serjeanty. This difference is ex- pressed by the use of the terms "grand" and "petit." These terms are used both by Bracton^ and by Britton.^ But they are not yet technical terms which express two settled varieties of the same tenure ; they express rather the substantial difference be- tween the nature or kind of the services due.^*^ That they came to have a technical meaning was probably due to the need for settling the question whether tenure by serjeanty gave rise to the incidents of wardship and marriage.^^ In the charter of 12 15 John had promised that he would not claim wardship on account of any " small serjeanty." ^^ As the greater number of the older ^ P. and M. i 315 — Serjeanties which had been ahenated were arrented, i.e. changed into knight's service or socage; cp. Ejoisham Cart, i, no. 459. 2 See below 205, for a similar process in the case of the villein tenants; Madox, Form. nos. 176, 183, gives specimens of deeds by which men were retained for a fixed sum. ^ii 5 and n. a from MS. A^; cp. ibid 10 — "to be keeper of our goshawks" is given as an illustration of grand serjeanty. ^Litt. §161. 5 Above 39. ^ii 10 and n. g; cp. Bracton f. 35b, "Sunt et alia genera serjantiae quae ad dominum capitalem non pertinent sed ad dominum regem pro exercitu regis ad patriae tuitionem." '^§§ 158, 161. *ff35b, 87b; cp. P. and M. i 304. " ii 5, 10. ^0 The great " secundum quosdam " are worth loos. ; the small are worth half a marc, or 5s. " P. and M. i 304. 12 § 27, " Nos non habebimus custodiam heredis vel terras alicujus, quam tenet de alio per servitium militare, occasione alicujus parvas sergenterias quam tenet de nobis per servitium reddendi nobis cultellos, vel sagittas, vel hujusmodi ; " the clause is repeated in subsequent re-issues. THE FREE TENURES 51 serjeanties dropped out, leaving only the serjeanties performed by the great nobility on state occasions, and the smaller military serjeanties, it would be natural to refer the words of the charter to the latter class, and to infer that they did not apply to the former class. Thus tenure by the latter class of serjeanty came to be " but socage in effect ; " ^ while tenure by the former class came to be similar to tenure by knight service, till it too was turned into tenure by socage.^ The honorary services due from the tenant by grand serjeanty were preserved by the Act of Charles 11.,^ and are the last traces of a tenure which once covered many diverse relationships — political, social, and economic. (iv) Socage. At the end of this period free socage has become the tenure by which all freehold lands are held if they are not held by frankalmoin, knight service, or serjeanty. This negative char- acteristic of the tenure is clearly brought out by Littleton.'* It is clear from his account that we can say much as to the services and incidents which are not due from the socage tenant ; but that we can say little about the services which are due. Military service or scutage is not due ; ^ and above all there is no wardship and marriage,^ Generally a money rent is due,'' and occasionally agricultural services.^ This rent may be nominal or substantial ; ^ it may consist in the gift of some thing of real value, e.g. a pound of pepper, or of merely nominal value, e,g. a rose. Sometimes no rent at all, but only fealty, is due.^^ But it is only gradually that tenure by socage has attained these characteristics. The term " soc " is, as we have seen, connected with the word " seek." ^^ That which the socman must seek is his lord's soke or jurisdiction. He is therefore a man who, because he must seek his lord's court, is dependent in some manner upon him. These socmen appear in Domesday in the Danish districts ; and socage describes their tenure. Often they were bound to perform agri- cultural services ; and this no doubt led both Bracton ^^ and Little- ton ^^ to the erroneous belief that the word " socage " was connected with the French soc^ a ploughshare. 1 Litt. § i6o ; cp. Bracton f. 87b. - 12 Charles II. c. 24. ^ Ibid § 7. ^§ 117, " Tenure in socage is where the tenant holdeth of his lord the tenancy by certain service for all manner of services, so that the service be not knight service." 5 §§ 120, 211. 6 §§ 123-125. 7 § 117. ^ § iig, " And in divers places the tenants yet do such services with their ploughs to their lords." » P. and M. i 274. ^» Litt. §§ 128, 129, 130, 131. ^^ Vol. i 20 ; Vinogradoff, Villeinage ig6 ; English Society 125 n. i. ^2 f. 77b, " Et dici poterit sockagium a socko et inde tenentes qui tenent sockagio sockemanni dici poterunt eo quod deputati sunt, ut videtur, tantummodo ad culturam." ^'^i 119. 52 THE LAND LAW In the days before the royal courts had created the four great types of free tenure the variety of the classes of these socmen was very great. In fact, we have socmen of all kinds, from the substantial rent-paying tenant to the tenant bound to perform labour services and perhaps personally unfree.^ It is for this reason that the great dividing line between free and unfree tenure cuts through this class. The law retained traces of the fact that the line had been drawn through it in the existence of both villein socage and free socage.^ Primarily then the tenant by free socage is a dependent tenant ; and his services are generally connected with agriculture.^ He pays rent for land which he cultivates, or he performs labour services, or he does both. We can see from Glanvil that the conditions of his tenure are not yet assimilated to the conditions of the other free tenures. The succession to his land is still governed by local custom ; the period when he attains full age is not fixed ; ^ and we can still see traces of these differences in the time of Bracton.'* At the end of the thirteenth century it is clear that the rights and powers of a tenant holding by free socage have come into line with the rights and powers of the tenants holding by the other free tenures. But because it is not a tenure which is connected with war no military service is due, and no scutage.^ For the same reason the lord cannot assert that he has that paramount interest in the wardship and marriage of the infant heir of his socage tenant which, in the days when tenure by knight service was really a military tenure, gave him these rights over the infant heir of his military tenant^ Whatever doubts there may have been as to this latter principle, it is by implication asserted in the Charter of 1 2 1 5. ^ In the twelfth and thirteenth centuries the tenant who held simply at a rent would not necessarily have been called a tenant in socage. He might have been called a tenant in fee farm. " To hold in fee farm means to hold heritably, perpetually, at a rent; the fee, the inheritance, is. let to farm." ^ Tenure by fee 1 Vinogradoff, Villeinage 196-203 ; cp. Bracton ff. 7, 7b as to the different classes on the royal demesne. 2 Ibid ff. 77b, 78. 3 Ibid f. 86b, speaking of the different ages at which different classes of tenants attain majority, he says that the heir of the socman is of full age when he has the strength and knowledge needed " ea exercere quae pertinent ad agriculturam." ^ viii c. 3 ; vol. ii 201 ; below 510 ; as Sir Paul Vinogradoff says (English Society 40), •* Socage tenure proceeded from an older stratum of law than the feudal one." 5 E.g. ff. 86, 86b. ^ There is a small exception in favour of " escuage certain," i.e. a sum fixed once for all, and not assessed on each occasion by Parliament, Litt. § 120. ' Below 65-66. 8 § 37, above 50 n. 12. ^ P. and M. i 273, 274. THE FREE TENURES 58 farm appears as a separate tenure in Magna Carta/ in Bracton,^ in Britton/ and in the Old Tenures."* Probably such tenants would be a higher class of rent-paying tenants — men who had nothing to do with agricultural work. In the course of the four- teenth and fifteenth centuries fee farm becomes merged in socage. The cause possibly was the fact that the agricultural services of the socage tenant were being generally commuted for money payments.^ The same cause which was fatal to the military duties of the tenant by knight service, which destroyed the most important class of tenants by serjeanty, which played some part in the substitution of the copyholder for the villein, operated to destroy any real distinction between the tenant by fee farm and the tenant by free socage. It was the most important class of the socmen, the class which were least burdened with labour services, which thus became the tenants by free socage.^ In many cases they had always paid some rent, and very probably they would be the first to feel the effects of the movement in the direction of commutation. Thus tenure by free socage comes to embrace not only the class of well-to-do farmers, but also all the classes who hold at a rent — whether that rent be onerous or merely nominal. It includes not only " tenants holding merely under lease at a rent," but also the great landowners of the kingdom. So wide a tenure can only be described, as Littleton described it, by negative characteristics ; ^ and it is exactly these negative characteristics which caused it to be highly valued, for they gave the tenant exemption from scutage and wardship and marriage. It was the least encumbered of all the tenures with obsolete and oppressive incidents, reminiscent of an older day when land-holding involved public rights and duties as well as private rights of ownership. It was because it fitted in best with the newer ideas which regarded land-holding simply as a form of property that it finally superseded all the other free tenures.^ Tenure in burgage is only a variety of tenure in free socage. It is the tenure of those who hold land freely in the boroughs.^ In many cases its incidents have been affected by the particular custom of the borough in which it is situate. ^^ It sometimes 1(1215) §37. -f. 86. 3ii II. '•At p. 92. ^Vinogradoff, Villeinage 178-181 ; below 205. ^ Vinogradoff, Villeinage 308, 309. "^ As early as Britton (ii 11) it is so described — " Sokemanries are lands and tenements which are not held by knight service, or by grand or petty serjeanties ; " we may note that he thinks that they are " enfranchised " lands — they are held "by simple services, as lands enfranchised by us or by our predecessors of our ancient demesnes." ^ 12 Charles II. c. 24. ^ P. and M. i 275, 276 ; Litt. § 162, " Such tenure is but tenure in socage." 1" Litt. § 165, " AJso for the greater part such boroughs have divers customs and usages which be not had in other towns," 54 THE LAND LAW contains survivals and reminiscences of old rules and ideas which have disappeared in the country at large because the country at large is subject to the common law alone. Some of these pecu- liarities I shall notice when I deal with certain variations from the general rules of the land law.^ The Incidents of the Free Tenures The services due from the tenant mark out the guiding lines of the different types of tenure. We must distinguish from these different services the incidents which are dependent upon them.^ Blackstone ^ enumerates as the incidents of tenure aids, relief, primer seisin, wardship, marriage, fines for alienation, and escheat. I shall deal with the whole subject of freedom of alienation in the next section. Here I shall deal with the other incidents of tenure as enumerated by Blackstone, and also with some of its other consequences in the following order : (i) homage and fealty ; (ii) relief and primer seisin ; (iii) wardship and marriage; (iv) aids; (v) escheat and forfeiture. (i) Homage and fealty. Homage is the ceremony which makes the tenant the man of his lord.* The oath of fealty is the oath which the tenant swears to be faithful to his lord.^ "Fealty," it is said in a Year Book of Edward I.'s reign, "does not make the tenant ; for that is only an acknowledgment of the services : but homage makes the tenant."'' If a tenant holds several pieces of land of different lords he can only perform unconditional or liege homage, he can only swear unconditional fealty, to one of these lords. That lord is called the liege lord. He is usually the lord who or whose ancestors made the most ancient of these feoffments. When homage is done or fealty is sworn to the other lords a saving must be made of the duty to the liege lord.''' All free tenants must take an oath of fealty to their lords ; and such an oath might be exacted at the present day. Homage, on the other hand, when we first read of it, was a ceremony only performed by the military tenant,^ and it could not be performed 1 Below 269-275. 2Y.B. 20, 21 Ed. I. (R.S.) 132 per Tiltone arguendo, " Relief is not a service, but dependent on a service ; " cp. 3, 4 Ed. II. (S.S.) 96, 99 per Scrope avg. ^Comm. ii 63. 4 For the ceremony see Bracton f. 80; Britton ii 37 ; Litt. § 85 ; Y.B. is Ed. III. (R.S.) 446. ^Bracton f. 80; Britton ii 39, 40; Litt. § 91 ; it tells us nothing of the services which may be due, Y.B. 18 Ed. III. (R.S.) 318. "Y.B. 21, 22 Ed. I. (R.S.) 240. "' P. and M. i 279 ; Glanvil ix c. i ; Litt. § 89. 8 Bracton ff. 77I), 78 ; but in Bracton's day the socage tenant often performed it, P. and M. i 286, 287. INCIDENTS OF FREE TENURES 55 by a woman. ^ Its performance brought into existence many- important rights and duties. Its history, like that of the military tenures, is a history of decay ; and the cause of its decay is that elimination from the land law of the public elements originally contained in it which has already been noted in dealing with th^ history of the free tenures. In the older law, represented in the Laws of Henry I., the ceremony of homage put the military tenant under the duty of aiding and protecting his lord, with his life it may be, of honouring him, and of faithfully serving him against all men. Such a tenant was a member of the lord's court and council, and as such had a share in the government of the fief. On the other hand, the lord was under the duty of protecting the tenant, and of defending him with his name and power against attacks, whether those attacks took the form of legal proceedings or of open force.^ The lord is far more than a landlord. The tenant owes many other and different duties than a mere tenant. Lord and tenant are related rather as ruler and subject. The state is weak. The man wants protection and the lord retainers.^ The ceremony of homage cements those associations of lords and men which, in the days of the weakness or the infancy of the state, of necessity assume many public duties, and cause landowning to be a matter of public law. It is for this reason that the breach of the obligations involved in homage is the most heinous offence known to the law.* It is the essence of felony, in the earliest sense in which that term was used ; ^ and it is, as we shall see, one of the most primitive of all the different ideas which have gone to the making of our law of treason, because these obligations are the bond which knits the feudal state.® In England we must look to old compila- tions like the Laws of Henry I., or to continental analogies, if we would understand the significance of homage, because in England the rise of the common law necessarily involved a diminution in its importance. But in spite of the activity of the common law we can see from the disorder of the fifteenth century that the political ideas which underlay the old conception of homage still lived on. Legal rules, which run counter to the prevalent ideas ^ Glanvil ix c. 2. 2 P. and M. i 280, 281, and passages from the Leges Henrici there cited, 287 ; French law, because feudalism was stronger, gives us the best idea of the older con- sequences of homage, see Esmein, Histoire du Droit Fran^ais 218-224; the mutual obligations of lord and man are well brought out in Glanvil's definition (ix c. 4), " Mutua quidem debet esse dominii et homagii fidelitatis connexio, ita quod quantum homo debet domino ex homagio, tantum illi debet dominus ex dominio praeter solam reverentiam; " cp. Y.B. 3, 4 Ed. II, (S.S.) 7 per Bereford, C.J. •'* Maitland says of the ceremony, " Everything seems done to tell us that the man has come helpless to the lord and has been received into the lord's protection," P. and M. i 278. ■'Leg. Henr. 75. i. ^Vol. ii 357-358. « Below 287-288. 56 THE LAND LAW of the age, must be rigidly applied for many years before they bring about a reform of these prevalent ideas, and create an instinctive preference for different ideas in harmony with them- selves. During the whole of this period this change was gradually and silently taking place. The public element in the land law was being reduced to the lowest dimensions ; and thus homage was becoming a mere ceremony of constantly diminishing importance. The causes and stages of this process may be summarized as follows : (i) With the increase of the power of the state, the duty to the king as supreme lord — the duty of allegiance — takes pre- cedence of the duty to the lord. William I. insisted on the recognition of this principle,^ and his successors more than main- tained his claims.^ Thus the worst crimes — the felonies and treasons of our later law — come to be offences not against the lord but against the king. They are breaches of the tie of allegiance, not of homage.^ But, as we shall see, some traces of the older ideas were long preserved in the existence of the crime of petty treason, and in the lord's right of escheat if his tenant committed felony.^ (2) As we have seen, the supreme control asserted by the courts of common law over all disputes as to the possession of or right to lands held by a free tenure tended to break up the solidarity of the feudal group ; and so the bond which once united this group necessarily lost its meaning. (3) As the land law comes to be merely property law the consequences of homage become merely proprietary. It gives rise to duties to warrant the title ; ^ and, as its older significance decayed, and as the differences between the free tenures began to fade, the ceremony ceased to be confined to the military tenant. It could be and was expressed in terms borrowed from the Roman law of obligations ; ^ and, when the duties of warranty came to be based rather on express covenants than upon the ceremony of homage,'' it really ceased to have any meaning at all, and was appropriately abolished in 1660 ^ with the military tenures themselves. ^ Saxon Chronicle s.a. 1086, "After that he went about so that he came at Lammas to Salisbury, and there came to him his witan, and all the landowning men of property there were over all England, whose soever men they were, and all bowed down to him and became his men, and swore oaths of fealty to him that they would be faithful to him against all other men." 2 In all the forms of the ceremony (above 54 n. 4) the faith owed to the king is saved. 3 P. and M. i 284-286 ; Calvin's Case, 7 Co. Rep. at pp. 4b-6 ; Bl. Comm. i 369. 4 Below 69, 288. f^Glanvil ix. c. 4; Britton ii 26; Litt. §§ 143-145; below 160. ^Bracton, f. 78b, defines it as, " Juris vinculum quo quis astringitur ad warranti- zandum, defendendum, et acquietandum tenentem suum in seisina versus omnes per certum servitium in donatione nominatum et expressum ; et etiam vice versa quo tenens re obligatur et astringitur ad fidem domino suo servandam et servitium debitum faciendum ; " cp. above 55 n. 2. ■^ Below 161, 8 12 Charles II. c. 24, INCIDENTS OF FREE TENURES 57 In the history of homage and fealty we may see in little the history of two important tendencies of our land law. Homage represented the public element in feudal law. Because it did so, it decayed, and disappeared together with the tenures and those of their incidents which were characteristic of that older state of society of which it had once been the bond. Fealty represented the bond between lord and tenant Its retention bears witness to that universality of tenure ^ in our land law which was secured by the very cause which was fatal to homage — the existence of a central court strong enough both to repress the elements in feudalism which were hostile to the development of the state, and to make the feudal conception of land tenure the common law of the land. (ii) Relief and Primer Seisin. The dependency of the man upon his lord was, as we have seen, the result of many different causes. The various types of tenure known to the law represented many different kinds of bargain between the contracting parties.^ According to the nature of the bargain the right of the heir of the tenant to succeed to the land of his ancestor will be stronger or weaker. In the eleventh and twelfth centuries the heir of the tenant by knight service has, as a rule, the right to succeed to the lands of his ancestor — but upon terms. With the development of the common law the rules for the military tenant are extended to all free tenants, and the terms attain fixity. These terms become the incidents of tenure known as relief and primer seisin. I shall discuss here the origin of the relief, the spread of the 11 relief to all free tenures, the manner in which its amount came to i be fixed, and the manner in which the rights of the lord and the ; heir were adjusted. In dealing with the origin of the relief we must at the outset i distinguish the relief from the heriot. We have seen ^ that, at the i time of the Conquest, the man was expected to give his lord an i heriot at death. This heriot — the arms of the thegn, the stock of I the peasant, perhaps the gift to the lord that he may recognize I the will of his tenant * — represent in theory the return to the lord I of the capital which he has advanced to his tenant The relief, on ! the other hand, represents the sum paid by the heir to the lord that he may succeed to the property of his ancestor.^ In the case ^ Vol. ii 199. 2 Ibid 200; vol. i 21-23, ^ Vol. ii 75. ^ Ibid ; Bracton f. 86. ° Ibid f. 84, when homage and fealty have been taken, the " hsereditas, quae jacens fuit per eorum decessum, relevetur in manus heredem, et propter talem releva- tionem, facienda erit ab heredibus quaedam praestatio, quae dicitur relevium ... fit \ '■ quaedam praestatio, quae non dicitur relevium, sed quasi, sicut heriettum; " cp. Y.B. J j 17, 18 Ed. III. (R.S.) 322, where it is said that relief should be taken before homage ; I for relief in D.B. see Vinogradoff, English Society 224, 243. 58 THE LAND LAW of the greater military tenants there can be no question of the advance of arms or stock. Their lands have been granted to them in return for public services past and future. From the time of the Conquest it has been recognized that these lands will descend to the heir of the tenant. But the heir must pay a relief in recognition of the lord's sefgnory. The land was originally given by the lord to the tenant ; but the lord does not want to seek a new tenant whenever an old tenant dies. The heir is the obvious person to take the land. He is willing to pay something to be allowed to succeed. The outcome is the recognition of hereditary right in return for the payment of the relief It may perhaps be said that, if this is the origin of the relief, we should expect to find that when a remote heir succeeds a larger sum is charged than when a near heir succeeds. It is not so much to the advantage of the lord to allow a remote heir, whom perhaps he does not know, to become his tenant, as to allow a son, with whom perhaps he has grown up, to have the land. He might be better off if he enfeoffed a stranger. In France there are traces that the relief varied upon this principle.^ That we have no trace of such varia- tion in England is due, perhaps, to the fact that the centralized administration of the law made for simplicity in its rules. And the view that it is these conflicting, but not adverse, interests of lord and tenant which supply the key to the origin of the relief gains perhaps additional probability by the fact that a relief was never payable by the tenant on the death of the lord. It may be that in the past, when the tenant's holding was regarded as entirely precarious, and before there was much fixed law on these matters, the new lord exacted such a payment.^ But in the reign of William II. the claim to make this exaction was regarded as wholly illegal.^ In such a case, indeed, it was really to the interest of the new lord — himself liable to pay a relief and perhaps to pay some of his ancestor's debts — to respect the existing interests of his tenants. He might perhaps induce his tenants to help him pay his relief'^ — but this is an aid,^ a sum paid by an existing tenant It is no relief, no payment for the recognition of his status as tenant. It is with reference to the tenants by military service that we first hear of the relief. Socage shades off into villein tenure ; 1 Esmein, Histoire du Droit Fran9ais 227, says that by the thirteenth century relief was paid as a rule only by collaterals, " sans aucun doute, les textes du droit romain, sur les siii heredes et la contimiatio dominii k leur profit exercerent ici une grande influence." 2 P. and M. i 298. 3 Ibid 299; Bracton, f. 84b, says distinctly that it must be paid, " non nisi semel tantum id est quamdiu heres duraverit qui semel relevavit." 4 Glanvil ix 8. ^ Below 66 ; Bracton, f. 85, seems to deny that such an aid can be demanded. INCIDENTS OF FREE TENURES 59 and it was at first perhaps doubtful whether the socage tenant paid relief at all — whether his payment was not rather in the nature of the heriot.^ But both in Glanvil and in Henry III.'s reign we hear of socage tenants paying reliefs ; ^ and, though some of them still paid heriots, it is coming to be thought that this payment should be made only by those who hold by a villein tenure.^ Probably from the beginning of the fourteenth century onwards it was recognized that the socage tenant paid a relief. In the case of serjeanty the peculiarly personal services due from the tenant hindered, as we have seen, the growth of the idea that lands so held should descend to the heirs.* There could be no thought, therefore, of a relief. We shall see that it was not till some time after the reliefs of other tenants had been fixed that any rule was arrived at in the case of tenants by serjeanty. A case decided in 1410^ implies that they paid a relief; and this is definitely stated by Littleton.*^ In early days the amount of the relief was no doubt left to be fixed by individual bargaining; and bargaining in that age was generally conducted, not by reference to the abstract law of supply and demand, but rather by reference to the effective fighting force of the contending parties.'^ The growth of a settled system of law, and the need for setting some limit to the avarice of the crown, seem to have been the two causes which led to the definite fixing of the amounts payable. William II. had stretched the rights of the crown to the utmost. We are not surprised, there- fore, to find that the first attempt to fix the relief is made in the charter which Henry I. issued at the beginning of his reign. He promised that the heirs of tenants in chief and the heirs of mesne tenants should not be compelled to buy back their lands, but should only be obliged to pay a just and lawful relief.^ Glanvil ^ ^ Glanvil, ix 4, and Bracton, f. 84b, talk as if the payment made by a socage tenant was a relief; Bracton, f. 85b, and Britton, ii 50, seem to confine the relief to grand ser- jeanty or knight's service — the payment made by the socage tenant Britton calls a recognition of seignory. In a case reported Y.B. 33-35 Ed. I. (R.S.) 350-355 it was argued that tenancy in fee farm (above 52) carried no relief — but the case vv^ent off on another point. 2 Below n. 9 ; Excerpta e Rot. Fin. (R.C.) i 409 (28 Hy. III.). ' Britton ii 51. ^ Above 46-47. 5 Y.B. II Hy. IV. Trin. pi. 9 cited P. and M. i 270. ^§ 154. 7 p^ and M. i 297 citing Burton Cart. 30. ^ § 2, " Si quis baronum, comitum meorum sive aliorum qui de me tenent, mor- tuus fuerit, haeres suus non redimet terram suam sicut faciebat tempore fratris mei, sed justa et legitima relevatione relevabit earn. Similiter et homines baronum meorum justa et legitima relevatione relevabunt terras suas de dominis suis." ^ ix 4, " Dicitur autem rationabile relevium alicujus, juxta consuetudinem regni de fcedo unius militis, centum solidi ; de socagio vero quantum valet census illius socagii per unum annum ; de baroniis vero nihil certum statutum est . . . idem est de serjanteriis ; " some commentators think that these rates were not binding on the crown, so that all tenants in chief were liable to arbitrary reliefs, McKechnie, Magna Carta 197 n. i ; but see Round, Magna Carta Commemoration Essays 53-59 ; those 60 THE LAND LAW and the Dialogus de Scaccario^ tell us that the relief of the knight's fee is fixed at lOOs., but that the relief of baronies and serjeanties is not fixed. The charter of 1215 fixed the relief of the barony at ;^ioo, and that of the knight's fee at lOOs. ;2 but at some period before the revision of the charter by Edward I. the ;^ioo had been reduced to 100 marks. ^ Towards the end of the thirteenth century the payment made by the heir of the socage tenant — which, as we have seen, came to be called a relief — was finally fixed in the mode stated by Glanvil at one year's addi- tional renf* At some period before the beginning of the fifteenth century the relief of the tenant by serjeanty was fixed at one year's additional value of the land.^ It is one thing to fix the amount of the relief payable : it is another thing to secure a peaceable succession to the heir on pay- ment of that relief. The lord's interest is to get payment, and he will naturally contend that he has the right to take possession of the land and exclude the heir till payment is made. The heir's interest is to enter upon his inheritance, and he will naturally con- tend that he has the right to take and keep possession of the land which is his, paying his relief. Both Glanvil and Bracton allow the lord to take a " simple seisin" — such a seisin as will not dis- turb the heir.*^ But obviously, till an heir appears, the lord has the right to take possession of what is his, if there is no heir.'^ It appears from the Petition of the Barons (1258) that the lords had gone beyond their rights. They had taken possession of and wasted the land, though an undoubted heir existed who was ready to pay his relief.^ In 1267 the Statute of Marlborough settled the law in the sense in which it had been laid down by Bracton. It enacted that if there was a person clearly entitled who paid reliefs to the crown were, till 1258, liable for a further sum called " Queen's Gold," payable to the queen, McKechnie, op. cit. 198. Mi x(p. 135). 2 c. 2 ; Mr. Round has shown that the line drawn in this chapter between baronies and knights' fees for the purposes of relief, has nothing to do with the line drawn in chapter fourteen between the greater barons and the other tenants in chief. Magna Carta Commemoration Essays 46-53 ; as he points out, ibid 77, " the line drawn in the second chapter was in practice sharply defined, because the relief payable to the crown could only be determined by it ; the line drawn in the fourteenth was, on the contrary, vague, and remained in practice undefined." 2 P. and M. i 289, " And thus the notion that a barony consists of 13^ knights' fees was engendered." ^ Glanvil ix 4 ; Bracton f. 85b ; P. and M. i 290 n. i. ^ Above 47 n. i . ^ Glanvil vii 9, ix 4 ; Bracton ff. 252, 252b. Glanvil's words (vii 9) are, *' Haeredes vero majores statim post decessum antecessorum suorum possunt se tenere in haeredi- tate sua, Hcet domini possint foedum suum cum hasrede in manus suas capere ; ita tamen moderate id fieri debet, ne aliquem disseisinam haeredibus faciant : possunt enim haeredes, si opus fuerit, violentiae dominorum resistere, dum tamen parati sunt relevium et alia recta servitia eis inde facere." '' Glanvil ix 6. s § j (gel Ch, 382), INCIDENTS OF FREE TENURES 61 as heir in possession, " the chief lord shall not put him out, nor take, nor remove anything there, but shall take only simple seisin, that he may be known as lord ; and if the lord ousts the heir, the heir shall recover damages as in assize of novel disseisin." ^ It was only if no heir appeared, or if there was a dispute as to the inheritance, that the lord could take more than " simple seisin." But in this branch of the law, as in many others, " the king was prerogative." On the death of the tenant in chief he was always and under all circumstances entitled to first seisin — primer seisin!^ Being so seised he issued the writ diem clausit extre- mum ^ to the escheator, who held an inquisitio post mortem. When the heir had done homage and paid his relief, he might then, and not till then, sue the tenements from out of the king's hand {ouster le main) and get seisin. This right of the king was recognized by the Statute of Marlborough * and the Prserogativa Regis. ^ Reliefs are in theory still payable. The royal right to primer seisin was abolished in 1660.® (iii) Wardship and marriage. We have seen that the interest of the tenant only gradually became hereditary, and that when it had become hereditary the obligation to pay a relief still reminded the heir of the lord's rights. It is clear that when the hereditary principle was still struggling for recognition the lord's claim to take back the land on the death of his tenant would be most strongly felt when the tenant's heir was an infant or a woman. The lord, it would be argued, must be allowed to educate the infant heir, so that he may become a worthy tenant, and he must have some say in the marriage of the woman, lest he be forced to accept as a tenant his personal enemy. ^ We have seen that these ideas were making themselves felt in England, as in other parts of Europe, in the Anglo-Saxon period.^ After the Conquest new point was given to these rights of the lord by the rigid theory of tenure, by the centralized administration of the law, and by the power of the crown. The rights of wardship and marriage became definite rights of great pecuniary value both to the king and to the mesne lords. ^ To modern minds such rights seem to be very fiduciary 1 52 Henry III. c. i6 ; cp. Britton ii 52. 2 Glanvil ix 6 ; Bracton f. 252b. ^ For this writ see F.N.B. 252K ; in its final form the writ is not known till the end of Henry III.'s reign; we have incidental uses of the phrase "diem clausit extremum " in the 27th and 29th years; but at first various forms of words were used, Excerpta e Rot. Fin. (R.C.) ix, x. '*52 Henry III. c. 16. "c. 3 ; for this document see vol. i 473 n. 8. " 12 Charles II. c. 24. ' See Glanvil vii 12. "^ Vol. ii 75. ^ See e.g. Bl. Comm. ii 76, 77 ; but as Maitland says (P. and M. i 304), '♦ To speak of the English lords as groaning under the burdens of wardship and marriage is hardly permissible ; we do not hear their groans." 62 THE LAND LAW in their nature. None of the incidents of tenure are more ah'en to our ideas, and none have been more execrated. That they were beginning to be repugnant to the current morahty even of the thirteenth and fourteenth centuries there are some signs. In the French law of the thirteenth century the right of wardship is not simply a valuable right of the lord ; ^ and in England, unlike the other incidents of tenure, they were always incidents of the military tenures only — they never became common to all the free tenures. We may well believe that these rights originally as- sumed the extremely commercial form which they took in Eng- land, because the land law in England was reduced to a set of definite rules at an early period ; and that they retained this form, because they formed an increasingly valuable asset of the royal revenue. It should be remembered also that it is not only in England that early law regards as a right that which a more mature system of law regards as a duty. The tutela of Roman law supplies an analogy. All varieties of tutelce were originally valuable rights. The tutela impuberum developed into an onerous trusteeship ; but the perpetua tutela mulierum was incapable of this development. Just as it gradually became an anomaly and an anachronism because it could only represent the primitive idea, so these incidents of wardship and marriage were gradually felt to be more and more oppressive and finally disappeared. But in their case there could be no such gradual modification and gentle decay as we see in Roman law, because they were not only valu- able rights, but valuable rights in which the king had come to be chiefly interested. As was the case with the other incidents of tenure, so with wardship and marriage, their extent was at first vague. There can be no doubt that they were exploited to the utmost by William II. ;^ and, as in the case of the relief, Henry I. was ob- liged to promise some reform. If any of the king's tenants, he says, wishes to marry his female relative to any one he is to speak with the king ; the king will not take anything for giving his licence, nor will he forbid the match, unless it is proposed to marry the lady to his enemy. A female heiress the king will marry after taking counsel with his barons. A widow shall not be compelled to marry against her will. If she has children their lands and persons shall be entrusted to the widow or to their lEsmein, Histoire du Droit Fran^ais 236, "Dans la plupart des coutumes la garde seigneuriale fut, de bonne heure, remplac^e par le hail, qui forme le droit commun au xiiie siecle. II consista en ce que la jouissance du fief, au lieu de retour- ner au seigneur, pendant la minority de I'heretier, resta k la famille de celui ci ; un parent, en qualite de baillistre, eut la jouissance du fief, a charge d'en faire les ser- vices ; " we see a similar development in the guardianship in socage, below 65-66 ; for guardianship in general see below 511-513. 2 P. and M. i 306, 307. INCIDENTS OF FREE TENURES 63 nearer relatives. The barons shall observe the same law with respect to their tenants.^ These promises were certainly not fulfilled. Probably both the king and the mesne lords were loath to abandon valuable rights. Glanvil ^ lays it down that until majority the lord has the custody of the sons and heirs of his military tenants, and also of their estates, "so as to have com- plete power of disposing of both." He has the marriage of his female wards and " can manage their affairs generally in the same way as he is accustomed to manage his own." He cannot, how- ever, alienate the inheritance ; he must properly maintain the heir ; and, to the extent of the value of the inheritance, he must pay the deceased's debts ; he must also restore the inheritance in good condition. Glanvil, therefore, recognizes both wardship and marriage as valuable rights belonging to the lord. It is true that he also recognizes that the lord has duties to perform ; and that when he talks of the right of marriage he only mentions the marriage of female wards. These characteristics may be due to a growing feeling — perhaps derived from Roman law — that guardianship involved duties as well as rights, and to reminiscences of the original ground for the right of marriage which fitted in with these newer ideas. However that may be, Maitland has shown that these newer ideas ran counter to the practice of the time.^ At the time when Glanvil was writing the wardships and marriages both of male and of female wards were regarded simply as valuable rights to be bought and sold ; and it is clear from Magna Carta that the barons were not disposed to give them up. The charter asserted them in large terms. The guardian must not waste the lands of his ward ; the ward must not be married to one of lower social rank. Subject to this the guardian has a free hand.^ TheStatuteofMerton^ (123 5- 1236) still further emphasized the lord's right by giving to the lord new remedies if his ward 1 Henry I.'s Charter §§ 3 and 4, '• Et si quis baronum vel aliorum hominum meorum filiam suam nuptum tradere voluerit sive sororem, sive neptim, sive cognatam mecum inde loquatur ; sed neque ego aliquid de suo pro hac licentia accipiam neque defendam ei quin earn det, excepto si earn vellet jungere inimico meo. Et si mortuo barone sive alio homine meo filia haeres remanserit, illam dabo consilio baronum meorum cum terra sua. Et si mortuo viro uxor ejus remanserit et sine liberis fuerit, dotem suam et maritationem habebit, et eam non dabo marito nisi secundum velle suum. " Si vero uxor cum liberis remanserit, dotem quidem et maritationem habebit, dum corpus suum legitime servaverit, et eam non dabo nisi secundum velle suum. Et terrae et liberorum custos erit sive uxor sive alius propinquiorum qui justius esse debebit. Et praecipio quod barones mei similiter se contineant erga filios vel filias vel uxores hominum suorum." 2 vii 9, 12. 3 P. and M. i 305, 306. ^cc. 4, 5, 6, 37; see McKechnie, Magna Carta 206-209; the provisions against waste were re-enacted by 3 Edward I. c. 21, and damages were in some cases given to* the heir by 6 Edward I. c. 5. ^ 20 Henry IH. cc. 6 and 7. 64 THE LAND LAW were abducted ; and by providing that, if the child married with- out licence, double the value of the marriage should be forfeited, and the land should be held by the lord till that sum was paid. The lord could not compel his ward to marry ; but the same statute provided that if he declined the match his lord proposed he must pay its value, " quia maritagium ejus qui infra aetatem est mero jure pertinet ad dominum foedi." The provisions of this statute were re-enacted and extended in 1275.^ In particular it was enacted that if the lord, wishing to keep the land, did not marry his female ward at fourteen, he should keep the land till the ward was sixteen, and after that should lose his rights to wardship and marriage.^ Wardship and marriage, therefore, were valuable proprietary rights. They were chattels which could be sold, which could be bequeathed, which would pass to the guardian's executors or administrators.^ In two respects only did this final settlement of the law curtail the rights of the lords, (i) Apparently they lost the right, which perhaps they once had, to control the marriage either of a female tenant of full age or of the daughter of a military tenant.^ It was only the king who ultimately retained something of these rights in his power to control the marriage of widows who held of him in chiefs (2) The heir who had been in wardship need pay no relief/' but in spite of this the king still retained his right to half a year's profits of the land as a fine for suing out livery — i.e. obtaining the livery of seisin of the lands from the king.'^ We have seen that one man may hold of many different lords. If he died, leaving an infant heir, who was entitled to the ward- ship and marriage ? If the king was one of these lords there was no question. He was entitled to the wardship both of all the lands, of whomsoever they were held, and of the person of the heir, and to his marriage, to the exclusion of all others.^ A clause of Magna Carta was needed to prevent the king from exercising his right when the land held of the king by the tenant was socage, fee farm, burgage, or petit serjeanty, and when the king held 1 3 Edward I. st. i c. 22 ; Y.B. 18, 19 Ed. III. (R.S.) 370, 372. 2 See Litt. § 103; and for a discussion of these statutes cp. Y.B. 35 Hy. VI. Hil. pi. 17. ^ P. and M. i 303; cp. Y.B. 30, 31 Ed. I. (R.S.) 312; for grants of wardship see Madox, Form. nos. 519, 573-575 ; Eynsham Cart, i no. 572 ; App. VI. ^ Glanvil vii c. 12. "* Magna Carta c. 8 reserved this right to the king and other lords ; but it came to be important only in the case of the king ; for instances see Excerpta e Rot. Fin. (R.C.) i 7, 204 ; the latter entry runs, •' Stephanus de Sedgrave finem fecit cum rege centum libris pro habendo maritagio Emmae de Canz quae fuit uxor Johannis de Sedgrave ad maritandum earn cui ipse et haeredes vel assignati sui voluerit absque disparagatione ; " cp. Y.B. 20 Ed. III. (R.S.) i 544, 546. ^ Magna Carta c. 3. ■^ Bl. Comm. ii 76. s Bracton f. 87. INCIDENTS OF FREE TENURES 65 merely ut de honore and not ut de corona} If the king was not one of these lords each lord got the wardship of the land held of him. It was ultimately settled in 1285 that the wardship of the heir's body and the right to his marriage were given to the lord of whom the heir held by the oldest feoffment.^ But these rules as to mesne lords, which were often complicated, tended to fall into disuse, partly because of the extent of the king's right of prerogative wardship, partly because of the effect of Quia Emptores.^ When the court of Wards and Liveries was estab- lished in the sixteenth century, the rights to wardship and mar- riage were almost exclusively the king's rights, and he alone was compensated when these rights were abolished.^ These rights of wardship and marriage were confined to the tenures by knight service and grand serjeanty. They were never extended to socage and petty serjeanty.^ The rule as to wardship which ultimately prevailed in the case of such tenants is that stated by Glanvil.^ " The heirs of socage tenants shall on the death of their ancestor be under the guardianship of their nearest relations, provided, however, that if the inheritance has descended from the father's side the wardship belongs to the relations on the mother's side, but if the inheritance has descended from the mother's side, then it belongs to the relations of the father. For the wardship is never by law placed in the hands of any one of whom any suspicion can be entertained that he may or will claim any right to the inheritance." At first the wardship of socage tenants, no less than the wardship of military tenants, was re- garded as a valuable right, to be bought and sold.*" But in the thirteenth century the idea that wardship imposed duties was growing. The Statute of Marlborough (1267) enacted that the heir, when he attained majority, should have an action of account against his guardian, and that the guardian should not give or sell the marriage of the heir " but to the advantage of the foresaid ^ cc. 37 and 43 ; above 41 n. 2. ^Bracton ff. 87, Sg-gib; 13 Edward I. st. i c. 16; Y.BB. 21, 22 Ed. I. (R.S.) 10 ; 6 Ed. 11. (S.S.) 180 ; 6, 7 Ed. II. (S.S.) I4g seqq. ; in Y.B. i, 2 Ed. II. (S.S.) 60 it is said by Herle that before the statute " he who can snap up the body of the heir shall have the wardship, and the other shall have no recovery ; " for a case where this procedure had apparently been followed see 6 Ed. II. (S.S.) 31. ^ The disregard of the interests of mesne lords is illustrated by the ruling in Sir Drew Drury's Case (1608) 6 Co. Rep. at f. 74b, that if the king makes the heir a knight in the life of his father he is out of wardship, though he is under age ; see also Sir Henry Constable's Case {1601) 8 Co. Rep. 173a. 4 TO Ch3.rlcs II c 2a *Y.BB. 20, 21 Ed. I. (R.S.) 240; 21, 22 Ed. I. (R.S.) 180; Bracton, f. 85b, says that they were extended to socage in the bishopric of Winchester— of this Bracton disapproved ; for other similar instances cp. P. and M. i 301, 302. "viic. 11; cp. Litt. §§ 123, 124. ■'' Bracton f. 8g, cited P. and M. i 303 n. 4. VOL. III. — 5 66 THE LAND LAW heir." ^ Thus guardianship in socage developed into a trusteeship.^ It became the model to which all forms of guardianship ultimately conformed/ just as socage tenure itself became the tenure in which all the other free tenures were merged. (iv) Aids. In the days when the feudal group was a little state associated for mutual help and protection the lord might call upon the tenant to assist him in emergencies.^ In early days these emergencies were not strictly defined. It was only possible to give leading instances, such as the knighting of an eldest son or the marriage of an eldest daughter. Glanvil declines to give an exhaustive list, and says nothing as to their amount except that they must be proportionate to the value of the fee.^ The charter of 1 2 1 5 lays it down that, except with the consent of the com- mune concilium, they may only be taken on three occasions — to ransom the lord's person, to make his eldest son a knight, and to marry his eldest daughter.® This clause did not appear in later editions of the charter, and, in fact, aids were taken by lords for many other purposes — e.g. to enable a lord to pay his debts, or even to stock his land.''' Bracton speaks as if the grant of aid was always a favour granted by the tenant to help his lord out of difficulties and never demandable as of right^ But, as Maitland points out, though there may be historical truth in this theory, it was be- coming obsolete.^ A contribution which will be sued for in the king's courts if it is refused cannot be said to depend altogether on the favour of the tenant. ^^ In England, as in France, the tendency was to fix the amount of the aid and the occasions on 1 52 Henry III. c. 17 ; at that time the writ of Account was a new writ, P. and M. i 303 n. 6. 2 Litt. § 125, " The guardian in chivalry hath the wardship to his own use, and the guardian in socage hath not the wardship to his own use, but to the use of the heir ; " cp. Plowden 293 ; but the guardian could do certain acts in his own name, e.g. grant copyholds, Shopland v Ryoler (1606) Cro. Jac. 98. 3 12 Charles II. c. 24 § 9. ^As Blackstone says (Comm. ii 63), "Aids were originally mere benevolences granted by the tenant to his lord in times of difficulty and distress." ^ ix c. 8, " Postquam vero convenerit inter dominum et haeredem tenentis sui de rationabili relevio dando et recipiendo, poterit idem haeres rationabilia relevia de hominibus suis inde exigere, ita tamen moderate secundum quantitatem foedorum suorum et secundum facultates, ne nimis gravari inde videantur, vel suum contene- mentum amittere. Nihil autem certum statutum est de hujusmodi auxiliis dandis vel exigendis, nisi ut praedicta forma inviolabiliter observetur." ^c. 12. 7 See instances cited P. and M. i 331. ^ f. 36b, •' Nunquam igitur exigitur auxilium, nisi praecedat necessitas, nee tenetur aliquis ad hujusmodi auxilium prasstandum, nisi ex indigentia domini sui capitalis, et ex eo quod est liber homo suus." ^ P. and M. i 331. 'oy.B. 6, 7 Ed. II. (S.S.) 237; cp. Y.B. 33-35 Ed. I. (R.S.) 134, where in an avowry it is stated that " when the vill of B is assessed at 20s. at each creation of a bishop [clearly a form of aid] the lady shall pay i6Jd., and when at more, more, etc." INCIDENTS OF FREE TENURES 67 which it could be demanded, and thus to create a legal obligation to pay it.^ In 1275 the rate of the aid for knighting the lord's eldest son and for marrying the lord's eldest daughter was fixed ,^ and in 1350^ the rates so fixed were made binding upon the crown. These statutes seem, in effect, to have fixed not only the amount of the aid, but also the occasions on which it could be demanded. Aids as so fixed were abolished in 1660.'* But it is interesting to note that as early as i 503 the commons had imposed a tax on all lands — freehold, copyhold, or ancient demesne — part of the consideration for which was the release of the king's rights to the two aids then due for the marriage of his eldest daughter and the knighting of his eldest son. The reason assigned for taking this course was that " if the same Aides shuld be of them levyed and had by reason of their tenures, accordyng to the Auncient Lawes of this Land, shuld be to theym doubte- full, uncerteyn and great inquietness, for the serche and non knowledge of their severall Tenures, and of their Landes chargeable to the same " ^ — a reason which makes it clear that the older theory underlying these payments had by that time completely disappeared. The plan then adopted of commuting them for a Parliamentary grant foreshadows the course which a century and a half later will be adopted with respect to all these incidents of tenure. (v) Escheat and forfeiture. All land is held of some lord. That lord or some one of his predecessors in title is supposed to have given the land to the tenant or some one of his predecessors in title. Therefore, if the tenant die without heirs it is only right that the lord should have back again that which he gave to the tenant. This is escheat propter defectum sanguinis. Similarly, if the tenant commits any gross breach of the feudal bond — commits, that is, a " felony " in the original sense of that term ^ — the lord may take again that which he gave. This is escheat propter delictum tenentis. The right of escheat was thus a tenurial right wholly de- pendent upon the fact that the freehold had no tenant. There- fore it could only arise when a tenant in fee simple died without heirs or committed felony. If the estate was a life estate it obviously disappeared when the tenant died ; and if the tenant committed felony, the reversioner or the remainder man became ^ In France we find the same three aids as are fixed by Magna Carta, with a fourth to assist the lord who is going on crusade, Esmein, Histoire du Droit Fran9ais 220. ■^3 Edward I. st. i c. 36. ^25 Edward III. st. 5 c. 11. * 12 Charles II. c. 24. » R.P. vi 532 (19 Hy. VII. no. 11). "Vol. ii 357-358. 68 THE LAND LAW entitled. Similarly, if the estate was an estate tail, the reversioner or remainder man could bring his formedon and recover the land if the tenant died without issue or committed felony before the birth of issue.^ But, in these cases, it was the operation of the Statutes de Donis ^ and Quia Emptores ^ which clearly differen- tiated this right of the reversioner or remainder man to succeed on the expiration of a particular estate, from the tenurial right of the lord to take the fee simple by escheat. Before the passing of De Donis there were no estates tail. Gifts which, after De Donis, gave an estate tail, then gave an estate in fee simple conditional.* Before the passing of Quia Emptores estates in fee simple, as well as other estates, were held of the donor. It followed that if the donee of an estate in fee simple died without an heir, or if the donee of an estate in fee simple conditional died without having had an heir of his body, the lord took the estate. Whether he took it as a reversion or as an escheat it was neither possible nor necessary to say. Thus it is not surprising to find that at this period the words "revert" and "escheat" are used indis- criminately ; for it was not till the passing of these two statutes that it was possible to draw the modern distinction between them.^ It is not till then, therefore, that the incidents of the modern estate in reversion were clearly ascertained. *" The history of the two varieties of escheat — escheat propter defectum sanguinis and escheat propter delictum tenentis — has been dissimilar. Escheat propter defectum, sanguinis is still part of the law. But in practice, owing to the operation of the statute Quia Emp- tores ^ in destroying mesne tenure or the evidence of its existence, it gradually came to be a right more valuable to the crown than to any one else ; and even to the crown it came to be of little value when all free tenants acquired the right to devise freely their estates.^ The change in the conception of felony which made it mean, ^ F.N.B. 144A. 2 13 Edward I. st. i c. i- 3 18 Edward I. c. i. * Below 111-114. ^ See Willion v. Berkeley (1562) Plowden at pp. 247-248 per Anthony Browne, J.; P. and M. ii 22-23; H.L.R. iii 170, where it is pointed out that, in a MS. Register of Henry III.'s reign, a writ, which answers the purpose of a writ of formedon in the reverter, is called a writ of escheat. 8 Below 133. 7 Vol. ii 348 ; below 81. ^Glanvil vii 17 thus expresses the rule, *' Ultimi heredes aliquorum sunt eorum domini. Cum quis ergo sine certo haerede moritur, quemadmodum sine filio, vel filia, vel sine tali haerede de quo dubium non sit ipsum esse propinquiorem haeredem et rectum, possunt et solent domini foedorum feoda ilia tanquam escaetas in manus suas capere et retinere ; quicunque sint domini, sive rex, sive alius ; " to the same effect Britton ii 326, " the lord shall stand in place of the heir ; " Glanvil and Britton do not mean necessarily that the lord's position was in all respects the same as that of the heir, cp. Bracton f. 297b ; they are using a figurative expression to describe the title of the lord who takes by escheat. INCIDENTS OF FREE TENURES 69 not the breach of the feudal bond, but serious crime, was no doubt at first profitable to the lord. He obtained an escheat propter de- lictum tejientis whenever his tenant had committed one of a grow- ing number of felonies.^ No doubt, too, this change in the mean- ing of the term " felony " caused escheat to the lord for this reason to be somewhat destitute of meaning. If a felony is a crime against the state, and if it is desirable to confiscate the property of criminals, one would think that the state should benefit. But this would have been too serious a departure from feudal conceptions to be insisted on. The establishment of an effective criminal law was difficult enough. It would have been well-nigh impossible if it had diminished the proprietary as well as the jurisdictional rights of the landowner. At all events, whatever may have been the wishes of the crown, the will of the great landowners was clearly and decisively expressed in the clause of Magna Carta in which the crown renounced any claim to forfeiture on the ground of felony.^ In the thirteenth century, then, a conviction for felony entailed the escheat of the lands of the felon to the lord ; and the conviction related back to the moment of the commission of the crime, so that all intervening dealings with the property were avoided.^ As the newer conception of felony prevailed it was sup- posed to have this effect because the felon's blood was attainted or corrupted. He could not own any property himself, nor could any heir born before or after the felony claim through him.^ The same consequences followed upon an abjuration of the realm,^ and upon a judgment of outlawry upon an indictment for felony.^ In all such cases of escheat the lord's right was subject to the right of the crown to "year, day, and waste." This is an old right — it appears in Glanvil ^ — but its origin is obscure. The wite of Anglo-Saxon law shows us that the king was regarded as having some interest in the enforcement of criminal justice.^ This 1 P. and M. i 285. '^ (1215) § 32, " Nos non tenebimus terras illorum qui convicti fuerint de felonia, nisi per unum annum et unum diem, et tunc reddantur terrae dominis foedorum." 3 Bracton ff 30b, 130a ; at f. 30b he cites for the rule Dig. 39, 5, 15 ; P. and M. i 460 ; but in the case of conviction on an appeal of felony there was no relation back, Co. Litt. 13a, b, 390b. * " Et sicut non valet donatio post feloniam perpetratam, ita nee valebit generatio quoad successionem, quantum ad hereditatem paternam et maternam, cum sit pro- genita talis ex testiculo et sanguine felonis," Bracton f. 130a ; Y.B. 20, 21 Ed. I. (R.S.) 352 ; Co. Litt. 8a. 5 P. and M. ii 588, 589 ; Coke, Third Instit. 217; below 303-30^. ^Bracton f. 130a ; Coke, Third Instit. 212 ; below 604-605. ■^ vii c. 17, " Terra quoque per unum annum remanebit in manu domini regis, elapso autem anno, terra eadem ad rectum dominum, scilicet ad ipsum de cujus foedo est, revertetur, verumtamen cum domorum subversione et arborum extirpatione ; " if a lord disregarded the right of the crown the land was seized, and the lord was made liable for mesne profits, the Eyre of Kent (S.S.) i 58-59 ; in later law the right to waste was always in practice compounded for by the lord, Challis, Real Property 35. ^ Vol. ii 47. 70 THE LAND LAW right of the crown may be a new way of expressing that interest. Continental analogies, however, would lead us to suppose that the property was regarded as in some way under the king's ban — per- haps because it was regarded, like the deodand, as tainted with guilt.^ This cause for escheat has almost disappeared from the law. The doctrine of abjuration, with the right of sanctuary to which it was appendant, was abolished in 1624.^ The doctrine of cor- ruption of blood, as far as it prevented any descent from being traced through the convicted felon, was abolished by the Inherit- ance Act in 1834^ and, after being modified in other ways by several statutes,* the whole law of escheat for felony, together with the king's right to year, day, and waste, was abolished in 1870.^ All that remains of QschQdX propter delictum tenentis is escheat as a consequence of outlawry upon an indictment for felony. The right of forfeiture in no way depends upon tenure. It was the prerogative right of the king as king to all the lands of a person convicted of high treason.^ Land thus forfeited was, if granted out by the crown, held ut de corona, unlike land escheated for felony which, if granted out again, was held ut de honored But forfeiture resembled escheat propter delictum tenentis in that the crown's right related back on conviction to the time when the offence was committed.^ It can be traced as far back as John's reign. Probably at that time the crown was attempting to en- force a right to the land of all felons. But, as we have seen, Magna Carta distinctly stated that the crown had no such right in the case of ordinary felony.® In the case of high treason the crown had a stronger claim to override the claim of the feudal lord. Treason is an offence against the king and the state. It is a breach of the bond of allegiance, whereas felony had once been a breach of the feudal bond of homage ; and no doubt it seemed 1 Maitland, Coll. Papers ii 61, Possession for a year and a day, where the various effects which possession for this period might have in different circumstances are col- lected. We may perhaps see in this right to year, day, and waste some reminiscence of the missio in bannum regis of the Prankish kings— the administrative sequestration of the property of a contumacious defendant, Borough Customs (S.S.) ii xvii, xviii, 1. 2 21 James I. c. 28 § 7 ; for abjuration and sanctuary see below 303-307. 33,4 WiUiam IV. c. 106 § 10. ^ 54 George III. c. 14 ; 9 George IV. c. 31 § 2 ; 24, 25 Victoria c. 100 § 8. ^ 33i 34 Victoria c. 23 § i — the king's right to year, day, and waste does not seem to be specifically noted. 8 P. and M. i 332. ' Hale, P.C., i 253-254 ; for this distinction see above 41 n. 2. 8 Challis, Real Property 36, citing Pimb's Case {1585) Moore 196 ; in the case of estates tail the effect of De Donis was to limit the forfeiture to the life interest of the traitor ; but 26 Hy. VIII. c. 13 § 5 extended the right of the crown to the time during which issue existed who might have inherited, "^ Above 69. INCIDENTS OF FREE TENURES 71 like robbery to take lands from the feudal lord for offences called by a name which was still used to signify an offence against the relationship of lord and man. The crown made good its claim in cases of high treason. The lands of a convicted traitor were for- feited to the crown, of whatsoever lord they were held, and the lord thereby lost all claims to an escheat. As we have seen, it was largely this conflict of interest between king and lord which led to the definition of high treason in Edward III.'s reign. ^ Forfeiture upon conviction for treason was abolished in 1870 by the same statute which abolished escheat for felony.^ It still exists as a consequence of outlawry upon an indictment for treason.^ The rise of the Use in the Middle Ages,* and the subsequent growth of equitable trusts in the sixteenth and seventeenth centuries,^ naturally raised the problem of the relation of the lord's right of escheat, and of the king's right of forfeiture to these new interests in the land. In the Middle Ages this problem was settled upon clear and logical principles. These rights attached only to the legal estate. Therefore the estate of the cestuique use was unaffected by them, just as it was unaffected by any of the other incidents of tenure. On the other hand, the estate of the feoffee to uses was subject to them, so that if a sole feoffee died without heirs, or committed felony or treason, the lord or the king could claim the land as an escheat or a forfeiture ; "^ and as the lord or the king was in ** in the post," '^ i.e. was in by title paramount, they were not bound by the trust. ^ We shall see that it was a principal object of the Statute of Uses to restore to the crown the revenue arising from the right of forfeiture and from escheat and the other incidents of tenure ; and that it succeeded in restoring this revenue, because, when it applied, it transferred the legal estate of the feoffees to uses to the cestuique use.^ In later law the liabilities of the new equitable estates arising after the Statute of Uses to the rights of escheat and forfeiture respectively diverged, and therefore they must be considered separately. (i?) In the case of escheat the law formerly applicable to the use was followed. If the cestuique use died without heirs and intestate or committed felony, there was no escheat. The trustee 1 Vol. ii 449-450, 475-476. ^ 33» 34 Victoria c. 23 § r. ^L.Q.R. xviii 297, Outlawry, Is it Obsolete ? ^ Bk. iv. Pt. I. c. 2. 5 Ibid, and cc. 4 and 8. «Bk. iv. Pt. I. c. 2. ' This expression, which is always used to denote that the person's title is not de- rived from the former holder, but is paramount to it, is obviously derived from the use of the same expression in connection with the writs of entry, above 13. 8 Bk. iv. Pt. I. c. 2. 9 Ibid. 72 THE LAND LAW held for his own use.^ Lord Mansfield, it is true, dissented from this view of the law, and contended that in such a case there was an escheat to the crown.^ This view always had its supporters ;^ but it was not till 1884 that the legislature adopted it in respect to the only important case of escheat which had survived — escheat propter defectum sanguinis^ On the other hand, if a sole trustee died without heirs and intestate or committed felony there was an escheat and the crown or other lord was not bound by the trust. ^ Statutes of the nineteenth century were passed to obviate the hard- ships resulting from this state of the law.^ At the present day escheat for felony has been abolished, and the Conveyancing Act, 1881,^ provides that such estates shall devolve upon the trustee's personal representatives notwithstanding any testamentary dis- position; and the Trustee Act, 1893,^ gives the court power to vest the trust estate in the person entitled thereto. {U) In the case of forfeiture for treason statutes of Henry VIII.'s and Edward VI. 's reigns provided that the crown should acquire the estates held to the use of a person who had committed high treason ; ^ and these statutes were, after a little hesitation, held to apply to equitable trusts. ^^ In other cases in which the crown was entitled to land by virtue of its prerogative, whether, as in the case of chattel interests, because the property was bona vacantia^^ or, as under the older law, because land was held by or on trust for an alien,^^ it was entitled to both legal and equitable interests. Treason committed by a sole trustee originally meant the forfeiture of the estate ; but the law on this point was changed by the same series of statutes as applied to escheat for felony. ^^ ' Attorney- General v. Sands (1668) Hardres 488 ; Hale, P.C. i 249 ; Burgess v. Wheate (1757-1759) i Eden 177 ; a good account of the last-named case will be found in an article on the Law of Escheat by F. W. Hardman, L.Q.R. iv 330-332. "^ I Eden at pp. 215-239. 3 L.Q.R. iv. 33^-335. ^47, 48 Victoria c. 71 § 4. ** Peachy v. Duke of Somerset (1722) i Stra. at p. 454; Burgess v. Wheate 1 Eden at p. 203 ; Attorney-General v. Duke of Leeds (1833) 2 My. and K. 343 ; Sanders, Uses (5th ed.) 305 ; exactly the same principle appHed when a mortgagee died without heirs and intestate ; the lord took free from the mortgagor's equity of redemp- tion ; see L.Q.R. iv 329-330. ^39, 40 George IH. c. 88 § 12; 59 George IIL c. 94; 11 George IV. and I William IV. c. 60; 4, 5 William IV. c. 23 § 2 ; i, 2 Victoria c. 69; 13, 14 Victoria c. 60. ' 44, 45 Victoria c. 41 § 3. ^ 56, 57 Victoria c. 53 §§ 26, 29. » 33 Henry VIII. c. 20 ; 5, 6 Edward VI. c. 11 ; Hale, P.C. i 240-244. 10 Ibid i 248-249. ^^ Middleton v. Spicer (1783) i Bro. C.C. 201 ; cp. note to Burgess v. Wheate, I Eden at pp. 259-260. ^2 Attorney- General v. Sands (1668) Hardres at p. 495 /^r Hale, C.B. ; cp. Sanders, op. cit. 308-311 ; L.Q.R. iv 324. ^3 Above n. 6 ; Sanders, op. cit. 305. { POWER OF ALIENATION 73 The history of these incidents and consequences of tenure bears witness to the same tendencies as those which have been noted in the history of the free tenures themselves. Incidents like homage, primer seisin, wardship, marriage and aids being inconsistent with the new conception of landowning as a form of property merely, became rapidly meaningless, and only sur- vived because they conferred valuable rights upon the crown. Forfeiture and escheat propter delictum teneniis survived longer on grounds of public policy. On the other hand, incidents like fealty, relief, and escheat propter defectum sanguinis still survive, partly because their abolition might have disturbed the rights of private persons, but chiefly because it would have been difficult to destroy them without rooting up the whole conception of tenure. Though the different tenures and all their incidents lasted on till 1660, it cannot be doubted that most of them had existed as burdensome anomalies for at least three centuries. The land law had become property law pure and simple by the beginning of the fourteenth century. The public elements once contained in it, to which the different tenures and their incidents bore witness, had evaporated. This fact will be more clearly brought out in the following section, in which 1 shall trace the process by which at an early date all free tenants had gained almost complete freedom of alienation. § 4. The Power of Alienation The power to alienate land freely was in the twelfth century affected by two sets of causes. In the first place, there were certain restrictions imposed in the interest of expectant heirs. In the second place, there were certain restrictions imposed in the interest of the maintenance of the rights and duties involved in the relation of lord and tenant. Restrictions Imposed in the Interest of Expectant Heirs We have seen that in the Anglo-Saxon period it was only over his bookland that a man had free powers of disposition. Over the land held by folk right his powers were more limited.^ In the future the rules as to bookland, so far as concerns trans- actions inter vivos, were to be the rules of the common law. But this was not clearly settled when Glanvil wrote. In his book we can still see the traces of the old rules ; and what he tells us upon these matters is confirmed by the conveyances of this period. The consent of the heir is obtained ; and it is 1 Vol. ii 68. 74 THE LAND LAW sometimes thought worth while to pay a price to obtain it.^ Glanvil tells us that we must draw distinctions between land acquired by purchase and that acquired by inheritance ^ and between the different purposes for which the alienation is made. A man may freely give a marriage portion to his daughter, or indeed to any other woman, or gifts to those who have served him, or gifts to the church.^ He cannot, as a rule, make gifts when he is dying, because of such gifts there can be no livery of seisin.* As we shall see, such livery of seisin is beginning to be regarded by the king's court as the first essential of a valid conveyance.^ But even these gifts may stand if the heir does not object.^ On the other hand, a man must not so alienate as to deprive his heir, or his heirs, if the land is partible, of his or their reasonable portions ; and though he has, as a rule, more power over acquired than inherited land, he cannot alienate even the acquired land if this is needed to secure these reasonable portions to the heirs. ^ Gifts to one child which will deprive the others of their due share are es- pecially prohibited.^ The severity of this prohibition may well be due to the antiquity of the rules. At an early period, when there was no trade in land, it would be favouritism as between the children rather than alienation to strangers which would chiefly call for express prohibition. But, seeing that gifts to daughters on their marriage or to retainers or to the church were allowed, it was easier to make such gifts as these than to make gifts to a child which might diminish the shares of ^ P. and M. ii 307-309 and references there cited ; cp. Madox, Form. nos. 426, 427. '^ Glanvil vii i, " Aut habet hereditatem tantum aut questum tantum ; " *' Sin autem et hereditatem et questum habuerit, tunc indistincte verum est quod poterit de questu suo quantumlibet partem sive totum cuicunque voluerit dare ; " Somner, Gavelkind 40, and Charter of 1204, cited P. and M. ii 307, n. 3. •' " Potest itaque quilibet liber homo terram habens quandam partem terrae suse cum filia sua, vel cum aliqua alia qualibet muliere, dare in maritagium sive habuerit heredem sive non, velit heres vel non, imo et eo contradicente vel reclamante. Quilibet etiam cuicunque voluerit potest dare quandam partem sui liberi tenementi, in remunerationem servitii sui, vel loco religioso in elemosina." * " Si vero donationem talem nulla sequuta fuerit seisina, nihil post mortem donatoris ex tali donatione contra voluntatem heredis efficaciter peti potest." ^ Below 221-222, 224 ; vol. ii 352-353. ^ " Tamen hujusmodi donatio in ultima voluntate alicui facta ita tenere si cum consensu heredis fieret, et ex suo consensu confirmaretur." ' " Si vero questum tantum habuerit . . . non totum questum non potest filium suum heredem exheredare." ^ " Si autem plures habuerit filios mulieratos non poterit de facili preter consensum heredis sui filio suo postnato de hereditate sua quantam libet partem donare. Quia si hoc esset permissum accideret inde frequens prius natorum filiorum exheredatio, propter majorem patrum affectionem quam saepe erga post natos filios suos habere solent; " cp. Britton ii 245, when the ancestor has agreed to give his wife dower he cannot increase it to the heir's prejudice — this may be a survival. POWER OF ALIENATION 75 the other children ; and this anomaly became the more striking as the rule of primogeniture was extended from lands held by military tenure to lands held by the other kinds of free tenure. The eldest son was the heir. Without his consent nothing could be given to the younger sons, whereas something could be given to a stranger — in fact, the position of a bastard was preferable to that of a legitimate child. ^ The rule thus reduced to an absurdity had disappeared from English law by the time of Bracton.^ As Maitland puts it, " Free alienation without the heir's consent comes in the wake of primogeniture."^ The word " heirs " in a deed of gift comes to be merely a word of [limitation and not a word of purchase — it marks the extent of the gift and gives nothing to the heirs. The common law from the thirteenth century onwards knows no retrait lignagner. \ The heir was in some degree compensated by the prohibi- Ition of the devise of land. The question whether or no these jdevises should be allowed was an open question when Bracton |wrote; and his opinion as to their validity fluctuated.* As jMaitland points out, we can find at least one case in the latter half of the thirteenth century in which a large estate passed junder such a devise ; ^ and, in books of precedents, forms for jthese devises are given. ^ Probably the decision to prohibit itheqi was caused chiefly by the fact that to permit them would lower the value of the incidents of tenure, and enormously {diminish the lord's chance of an escheat. Partly, perhaps, it pay have been felt that something was due to the heir ; partly jthat to allow land to pass by will would have created a large exception to the rule that land cannot pass without a genuine I ^ •' Sed nunquid filio suo bastardo potest quis filium et heredem habens de (lereditate sua donate ? Quod si verum est tunc melioris conditionis est in hoc aastardus filius quam mulieratus postnatus — quod tamen verum est." £ 2 Bracton's Note Book case 1054, " Et Radulphus [the plaintiff] venit et e ;ognoscit cartam patris sui [i.e. the charter conveying the landj . . . sed petit : udicium si pater suus potuit dare totam terram quam tenuit per servicium militare ;, luUo retento servicio sibi vel heredibus suis " — ^judgment is given for the defendant, • quia Radulphus cognoscit cartam patris sui." I ' P. and M. ii 307. *ff. i8b, 19 bethinks that "though this is unheard of," a writ might well be termed to meet the case; but ff. 49, 60b, 412b are opposed to this; cp. also I iGlanvil vii i and 5. j '^ P. and M. ii 27 — in 1262 Henry III. allowed Peter of Savoy to bequeath the !i. Iionour of Richmond ; when he died the honour passed under his will ; " it is |30ssible that the discussion of this famous case convinced the king and the great IS Teudatories that they would lose a great many wardships and marriages if land eij pecame devisable per for mam doniy ijj "L.Q.R. vii 67, 68 Maitland says, "I am persuaded by Bracton's vacillating 4 anguage, by a precedent that I have found in another collection, and by several ::i ictual deeds that I have seen, that this attempt very nearly succeeded, that the { x)wer of devise given by the statutes of Henry VIII. and Charles II. was very jiearly won in the middle of the thirteenth century." 76 THE LAND LAW livery of seisin.^ However that may be, from the end of the thirteenth century the law was settled. The ancestor could alienate as he pleased in his lifetime. He could not prevent the heir from inheriting what he had left at his death. The Feudal Restrictions imposed in the Interests of the Mainten- ance of the Rights and Duties involved in the Relation of Lord and Tenant The history of the free tenures has shown us that, to a greater or a less degree, landowning in the eleventh and twelfth centuries was a matter of public law. We at the present day would consider it anomalous if we were told that offices which involved the performance of public duties were freely alienable. As we have seen, such offices were often alienable in the past.^ The proprietary element in feudalism was so strongly developed in this country that it was sometimes improperly extended to things which should never have been regarded as property at all. Probably something of the modern feeling against the alienability of public offices was in the twelfth and thirteenth centuries directed against the free alienation of land ; and probably that feeling was stronger in the higher ranks of the feudal hierarchy than in the lower. Such dignified persons as earls, barons, or tenants by grand serjeanty were expected to fill very public positions and to perform very onerous duties. We shall see that restrictions upon the power of free alienation lasted longer in the case of the tenants in chief than in the case of other tenants.^ It is possible that the very generality of this feeling that free alienation was " contrary to public policy " prevented any very definite statement of it as a principle. There is no mention of it in Glanvil, though he mentions, as we have seen, the analogous subject of the restriction upon free alienation in the interest of the heir.* But there is, as Maitland has shown, plenty of evidence from charters of conveyance that the lord's consent to a gift by a tenant was thought desirable ; ^ and there is a little evidence ^ Vol. ii 352-353 ; P. and M. ii 326, 327. 2 Vol. i 19, 250-251, 259-260, 425, 439, App. XXX. 3 Below 83-84. •* Above 73-74. ''P. and M. i 321-327 and authorities there cited; Madox, Form. nos. 71, 73> 74. 77. 83, 98, 676; below 228; at p. 324 Maitland says, "It is quite imposs- ible for us to hold that the restriction expressed in the charter of 12 17 was a new thing, or that the free alienability of the fee simple is the starting-point of English law ; we must be content with a laxer principle, with some such idea as this, that the tenant may lawfully do anything that does not seriously damage the interests of his lord. He may make reasonable gifts, but not unreasonable. The reasonableness ol the gift would perhaps be a matter for the lord's court; the tenant would be entitled to the judgment of his peers; " cp. Wright, Tenures 154-157, and Gilbert, Tenures 51, 52, who affirm that the licence of the lord was needed for alienation, with Coke. FEUDAL RESTRICTIONS 77 that lords sometimes consulted their tenants before they made a conveyance of their own land.^ As we shall see, one aspect of the law as to the necessity for the tenant's attornment on the I alienation of a seignory was based upon the wrong done to a tenant if his lord, by alienating his seignory, substituted for him- jself a personal enemy of the tenant, or one incapable of fulfilling Ithe duties of a lord.^ Though, therefore, we get in Glanvil no [definite statement as to restraints upon alienation based on the feudal principle, such as we get in the law of France of the same period, and even later,^ we should probably not be far wrong if Ave concluded that such principles were generally recognized in England — so generally recognized that there was little need to make definite statements about them. In the thirteenth century both in France and England land- pwning was tending to become more and more exclusively a branch of the law of property. Just as ideas drawn from Roman law helped to build up the conception of the state, so they helped ^o define and strengthen the legal conception of ownership. The )\vner of land is an owner of property; he has the dominium, :hough it is land of which he is dominus. Thus we find that both n England and in France these old restraints on the freedom of ilienation tend to disappear. The process and the final result jire different ; but the general tendency is the same. We can see :hat in England this general tendency was welcomed and strongly promoted by the judges of the royal courts. In fact, they sympathized with it on two separate grounds — on technical grounds because it gave to the owner a power which, according .0 Roman law, all owners ought to have,* on grounds of public policy because it reduced landowning to mere property law, and hereby broke up the solidarity of the feudal group. ^ But the )kl ideas, though never expressed in definite rules, died hard, >econd Inst. 65, who thought that as a rule the tenant could alienate ; probably all hese earlier authorities are inclined to give too sharp an edge to vague customary ,ules ; Esmein, Histoire du Droit Fran^ais 238-240, comes to a conclusion somewhat limilar to that of Maitland ; but in France the original restrictions on alienation were more definitely expressed than in England, and the freedom ultimately acquired less omplete. ' P. and M. i 327 ; cp. Esmein, op. cit. 240 ; ibid n. 3 he notes that several lords siti Languedoc in 1360 refused to comply with the treaty of Bretigny on this ground. J 2 Below 82. 'I 'Esmein, op. cit. 238, citing Lihri Feudorum i 13, ii 9, 34, 39, 40, Grand Koutumier de Normandie (thirteenth century), and Uancienne coutume de Bourgogne cjlfourteenth century). ^1 * Bracton f. 46b, " Est autem libertas, naturalis facultas ejus, quod quique facere 'Pibet, quod voluerit, nisi quod de jure vel vi prohibetur. . . . Cum igitur donatio pura , jit et perfecta sine conditione vel servitute imposita, dici possit libera, et cum donatio '/ em faciat accipientis, et sit libera, et ex libertate sequatur, quod donatorius de re ^i.ata facere possit, quod voluerit, si rem ulterius dederit, domino suo non injuriatur, ■'1 um totum habuerit quod ad ipsum pertinuerit." 5 Vol. 187-88. 78 THE LAND LAW because they represented very general and very deeply rooted traditional ideas as to the ordering of society. How general and how deeply rooted these ideas were we can see from the fact that during the mediaeval period a recrudescence of feudal ideas was always ready to occur, weakening the state and perverting the law.^ Thus we are not surprised to find that Bracton, when he lays it down that an owner of land can freely or almost freely alienate his land, is conscious that he is laying down a new and an unpopular doctrine ; and that therefore his statement of the law is both argumentative and apologetic.^ Though the newer ideas as to the rights of owners and the position of the land law were undermining the feudal restraints on alienation, changed social conditions were demanding the im- position of another restraint based upon other grounds. As in the days of Bede,^ so in the thirteenth century, the evils of gifts of land to the religious in mortmain were beginning to be felt. Lords were deprived of the incidents of tenure ; ^ and the land itself was rendered inalienable. Such gifts therefore were opposed to the interests of the lords and offended the prejudices of the lawyers. In some respects Magna Carta reflects very well the state of public opinion at the beginning of the thirteenth century.^ In no respect does it do so more faithfully than in the clauses which deal with this question of freedom of alienation. The barons resented the tendency to do away with all restraints upon aliena- tion by their tenants. This, no doubt, was the cause for enacting that, *' No freeman from henceforth shall give or sell any more of his land, but so that of the residue of the lands the lord of the fee may have the service due to him which belongeth to the fee." * All classes of lay lords saw their interests endangered by the acquisitive capacity of the religious houses. This no doubt was the cause for enacting that, ''It shall not be lawful from hence- forth to any to give his lands to any religious house, and to take the same again to hold of the same house. Nor shall it be law- ful to any house of religion to take the lands of any, and to lease ' Vol. ii 408, 415-416. 2f. 45b, " Sed posset aliquis dicere, quod ex hoc, quod donatorius ulterius dat et transfert rem donatam ad alios, quod hoc facere non potest, quia per hoc amittit dominus servitium suum, quod quidem non est verum, salva pace et reverentia capitalium dominorum. . . . Cum enim quis tenementum dederit, certum dat tene- mentum tali modo, ut certas consuetudines recipiat et certum servitium. . . . Et unde de jure plus petere non poterit, si habuerit quod convenit, et sic tollat quod suum fuerit, et vadat." 3 Vol. ii 68. 4 Vol. ii 348-349; cp. Y.B. 30, 31 Ed. I. (R.S.) 62. s Vol. ii 208. ^(1217) c. 39 ; Bracton's Note Book case 1248, where the clause was applied to prevent a gift in frankalmoin. FEUDAL RESTRICTIONS 79 the same to him of whom they were received to be holdea If any from henceforth so give his lands to any religious house, and thereupon be convict, the gift shall be utterly void, and the land shall accrue to the lord of the fee."^ Both these clauses are vague, because both attempt to deal with problems upon which as yet there had been no need for definite rules. Both demand that some control shall be placed upon freedom of alienation ; but the principles upon which that control is demanded are very different. The first represents the desire to maintain the older feudal conception of land-holding; the second the desire to maintain the rights of landowners and to guard the state against a public danger. Both clauses show that the vague customary practices no longer sufficed — that the time had come for positive law to deal expressly with this question of freedom of alienation. They form, therefore, a convenient starting-place for the history of that law. I shall deal (i) with the feudal restraints upon free- dom of alienation, and (ii) with the restraints upon alienation to the religious houses. (i) Feudal restraints upon freedom of alienation. We must at the outset distinguish the case of the mesne tenant and the mesne lord from the case of the tenant in chief and the king. {a) The mesne tenant and the mesne lord. How far could the mesne tenant alienate his land without the consent of his lord? How far could the mesne lord alienate his seignory without consulting his tenant ? These two questions are obviously parts of the same problem, but they involved somewhat different considerations and were answered in different ways. In answering the first question — how far could the mesne tenant alienate his land without the consent of his lord? — we must begin by noting that alienation might take the form either of subinfeudation or of substitution.^ If B is A's tenant, B may either enfeoff C of part of his land so that he, B, is C's lord and remains A's tenant ; or he may put C in his, B's, place, so that C is now A's tenant, and he, B, drops out entirely. The first is a case of subinfeudation, the second a case of substitution. In the first case Bracton argued strongly that no legal wrong {injuria) was done to the lord, though in fact the lord was damaged. B was still his tenant. A could still distrain for B's services on the whole of B's fee. A's incidents of tenure might be diminished in value, but of this the law would take no account. Incidents of tenure were only incidents. If A got his services he must be ^ (1217) c. 43. 2 p^ and M. i 310, 311. 80 THE LAND LAW content.^ The second is a much weaker case for the tenant. Here B drops out, and it would seem that the lord might rightly object to having C, a poor man perhaps, or his personal enemy, imposed upon him as his tenant instead of B. In Edward III.'s reign some thought that in such a case the lord could, before the statute Quia Emptores, have declined to accept the feoffment^ Nevertheless Bracton argues that even in this case B has full power to substitute without consulting A.^ There is a slight hint, perhaps, in one passage that the lord should be allowed to exercise a right of pre-emption ; but it is little more than a hint ; ^ and in other passages Bracton is clearly in favour of giving to the tenant the fullest powers of substitution.^ English law has never permitted a '' retrait feodaiy The question was finally settled by the statute Quia Emp- tores^ (i2go). As we have seen, the incidents of tenure were at that date more important to the lords than the services reserved/ The tenant wanted the power of free alienation. The lord did not want to lose his incidents. A compromise was made by this statute ; and it was a compromise which it was the more easy to make seeing that lords and tenants did not form two exclusive classes. Many, perhaps most, free tenants were both lords and tenants in respect of different parts of their possessions. The statute enacted that " from henceforth it shall be lawful to every freeman to sell at his own pleasure his lands or tenements or part of them, so that the feoffee shall hold the same lands or tenements of the chief lord of the same fee, by such service and customs as his feoffor held before." If part of the land were conveyed the services were to be apportioned. The statute was to apply only to conveyances in fee simple.^ It was settled in Edward II.'s reign that the lord could not evade the statute by ^ f. 45b, •' Non enim fit donatio tali modo, quod habeat custodiam terras et heredis et maritagium, sed quod habeat homagium et servitium." 2Y.B. 17, 18 Ed. III. (R.S.) 324 per R. Thorpe, arguendo, "Before the statute Quia Emptores, even though my tenant aliened in fee simple no law compelled me to accept the feoffment ; then my avowry was good upon my former tenant and upon his heirs, and I should avow upon the heirs for a relief, notwithstanding the con- veyance." 3f. 81, " Si tenens cum homagium fecerit domino suo, se dimiserit ex toto de haereditate sua et ahum feoffaverit, tenendum de domino capitali, et quo casu tenens absolvitur ab homagio et extinguitur homagium, velit nolit dominus capitalis." * ff. 46, 46b— in a case where there is a feoffment with a condition against aliena- tion, if the feoffee has aUenated, and the lord does not immediately eject the alienee, but only ejects him after an interval, he should restore the land to the feoffee, " nisi forte dare voluerit valorem vel precium." 5 Above 77, 78. G 18 Edwatd I. c. i. ' Vol. ii 348-349. 818 Edward I. c. i § 3 ; Y.B. 21, 22 Ed. I. (R.S.) 641, "The statute Quia Emptores terrarum, etc., is understood of the case of one enfeoffing another in fee simple, and not in fee tail;" see Y.B. 3, 4 Ed. II. (S.S.) for an illustration of the effect of its working. FEUDAL RESTRICTIONS 81 charging fines upon alienation.^ The result was to give to the tenant in fee simple full power of alienation by way of substitu- tion, but to stop all subinfeudation when a grant was made in fee simple. If a mesne lord has at the present day a tenant in fee simple of lands of free tenure, that tenure must have been in existence before the year 1290. There are two features of this settlement of the question of the freedom of alienation to which it is necessary to call attention at this point. Firstly, because the statute stopped all subinfeuda- tion when a grant was made in fee simple, it set in motion a process by which in course of time the importance of merely tenurial principles has been immensely decreased. " It is," says Challis,^ " the general effect of the statute of Quia Emptores, so often as a mesne tenure for a fee simple is extinguished by union of the land and the lordship in the same hands, to prevent the mesne tenure from being ever again revived by any act of the parties. Thus, by the gradual extinction of the mesne tenures, the seignory of all freehold lands held for a fee simple tends to become con- centrated in the crown." The principle and consequences of tenure tend to become simplified; and that means the removal of a great obstacle to the conception of the land law merely as property law. This, as we shall see, is illustrated by the history of the law as to land which is held by copyhold tenure. To this day the consequences of tenure form a real hindrance to its pro- fitable user. Secondly, the statute did not extend to the crown. ^ The king was the one person who was always lord and never tenant. He could freely alienate already, and could therefore gain no advantage by the statute. By insisting on his right to prevent his tenants in chief from alienating he could derive some pecuniary benefit ; and, as the statute bound them, he would still be assured of his incidents of tenure if he allowed them to sell their lands. Moreover, as we shall see, the public position of the king and his tenants in chief to some extent differentiated them from the mesne lords and their tenants. We must now turn to the second question — how far could the mesne lord alienate his seignory without consulting his tenant ? There are, as Maitland has pointed out,* two difficulties involved ^ R.P. i 298 (8 Ed. II. no. 36) ; for later cases which declared void all attempts to restrict alienation see 33 Ass. pi. 11 ; Y.BB. 14 Hy. IV. Mich. pi. 6 (at p. 3) ; 21 IHy. VI. Hil. pi. 21 ; 8 Hy. VII. Hil. pi. 3 ; 13 Hy. VII. Pasch. pi. 9 ; in the last cited case Brian, C.J., at p. 23 interrupted Keble, who was trying to argue that a tenant in fee simple could be bound by condition not to alienate, and said, " que ils ne vouloient luy ouir a arguer a cest conceit, pur ceoque il est merement incontre f nostre comon erudition, et est or in manner un principal ; " for Littleton's classical exposition of this principle, see below 85. 2 Real Property 22. ^ ibij 20, 21. * P. and M. i 328. VOL. III.— 6 82 THE LAND LAW in the alienation by the lord of his seignory. (i) There is the difficulty in giving to a tenant, who has contracted to serve one lord, another. This, it will be observed, is a precisely similar difficulty to that which is involved in allowing a tenant to sub- stitute another for himself. It is, as Maitland calls it, "a feudal difficulty ; " and if it had stood alone probably it would not have been allowed to stand in the way of a free alienation of the seignory. Mere feudal difficulties were, as we can see from the converse case, apt to be disregarded by royal judges.^ But (2) there was another difficulty — a legal difficulty, which in the eyes of those same royal judges was naturally treated with more respect. How could a lord, who was not seised of the land in demesne, deliver seisin of the land which he held only in service?^ The answer was that he could not do so unless the tenant attorned to the new lord, i.e. recognized him as his lord. Perhaps he might at one time have refused to attorn ; but in the thirteenth century a writ was invented, called per quce servitia, by which the tenant could be compelled to attorn when the seignory was con- veyed by fine.^ It is true that a tenant who had done homage to his lord could object to having his homage transferred* — though the lord could not, as we have seen, prevent the tenant from abandoning his land, and so freeing himself from the duties imposed upon him by the ceremony of homage.^ ''A lord," it was truly said, ''cannot so lightly get rid of his tenant as a tenant can of his lord. "^ This seeming unfairness to the lord may be due to the fact that the lord's duties were regarded as contractual in their nature — as a sort of chose in action which could not be assigned ; '^ whereas the tenant's duties were bound up with the land, and, so to speak, ran with it, so that they were assignable with the land.^ However this may be, it is clear that the rule preventing a transfer of the tenant's homage placed no serious impediment on the assignment of a seignory. On such a transfer the tenant's services could always be transferred by attornment whether the tenant consented or not ; ^ and when ^ Above 78 ; Madox, Form. no. 512 (a deed of Hy. II. 's time) in which a tenant makes an exchange with his lord, and confirms the lord's grant in frankalmoin of the land originally belonging to him. 2 Below 100. 3 P. and M. i 330 ; Bracton's Note Book cases 948 and 1622 ; Y.B. 33-35 Ed. I. (R.S.) 314. It seems that the recognition could take the form either of the oath of fealty or payment of rent, Y.B. 3, 4 Ed. II. (S.S.) 17, 157. ^Bracton ff. 8ib, 82. ^ Above 79-80. 6 Y.B. 3 Ed. II. (S.S.) 171. ' Bracton, f. 78b, defines homage in the terms of the Roman definition of obligatio ; as to the non-assignability of choses in action at this period see below 92 ; Bk. iv Pt. II. c. 2 § 3. ** Y.B. 14 Hy. IV. Mich. pi. 6 (p. 4) " un chose que passa ove la terre." * Bracton f. 82, " Homagium dividi nee attornari non potuit contra voluntatem tenentis, licet servitium dividi posset et attornari, et sic videtur quod servitium FEUDAL RESTRICTIONS 83 the ceremony of homage ceased to be performed the limitation itself became obsolete. {b) The tenant in chief and the king. Magna Carta, as we have seen, drew no distinction between the capacity of the mesne tenant and the tenant in chief to alienate their lands. ^ But between 12 17 and the end of Edward I.'s reign a wide distinction in respect of freedom of alienation was drawn between them. In 1256^ the king issued an ordinance which forbade all tenants in chief to alienate without his licence, and ordered the sheriff to seize all lands so alienated. The reason assigned for the ordinance was that by reason of such alienations the king lost his incidents of tenure, and that his tenants were so impoverished that they could not perform their due services. Britton,^ Fleta,* the so-called statute Praerogativa Regis, ^ the Quo Warranto enquiries,^ the articles of the Eyre '^ and the Year Books,^ all assume that this is the law. These authorities all make it clear that land held by serjeanty (which, as we have seen, was always held directly of the crown ^) could not be alienated at all.^^ Land held in chief by knight service, and probably all land so held by any free tenure, either could not be alienated at all, or could not be alienated so that the tenant was disabled from performing his due services. In the fourteenth century the traditional view held in the law courts was that this difference between the position of the tenant in chief and other tenants arose in Henry 1 1 I.'s reign. ^^ Having regard to the ordinance of 1256, this view was probably substantially correct. There was certainly more truth in it than in the view held by Parliament that the king's right was based on the apocryphal statute Praerogativa Regis. ^^ However, whatever was the basis of the king's right, he clearly had an indefinite right at the beginning of the fourteenth century to prevent his tenants in attornari poterit in omni casu, et contra voluntatem tenentis ipsius, licet homagium non possit." 1 Above 78. 2 L.Q.R. xii 299-301 ; it is perhaps this ordinance to which Hankford referred, when he said, Y.B. 14 Hy. IV. Mich. pi. 6 (at p. 4), " Jeo die expressement que en temps de roi Henry le tenant le Roy purra avoir aliener auxy frank tenement come le tenant d'ascun auter sans ascun fine." ^i 222. ^p. 178. ^ As to this document see vol. i 473 n. 8. ^ Vol. i 662 articles 24. ' Britton i 71. 8 Y.BB. 32, 33 Ed. I. (R.S.) 38 ; 33-35 Ed. I. (R.S.) 306. ^ Above 50. ^" Praerogativa Regis cc. 6 and 7 only mentions land held by serjeanty and knight's service ; Y.B. 14 Ed. III. (R.S.) 144, 146. ^lY.B. 15 Ed. III. (R.S.) 156-158; 20 Ass. pi. 17; 26 Ass. pi. 37; 29 Ass. pi. ig ; Y.B. 14 Hy. IV. Mich. pi. 6. ^'^R.P. ii 265; a view also propounded by Willoughby, J., in Y.B. 20 Ed. III. (R.S.) ii 232. 84 THE LAND LAW chief from freely alienating their lands. The extent of the right was gradually settled by statute. It was enacted in 1327 that lands held of the king ut de honore should be freely alienable, and that, if lands held of the king ut de corona were alienated without the king's licence, he would not hold the lands forfeit, but would exact only a reasonable fine.^ One reason for this distinction between the position of the tenant in chief and the mesne tenant may perhaps be found in the more or less public position which many tenants in chief held ; and in this connection it may be noted that the Praerogativa Regis mentions the case of tenants by knight service and ser- jeanty,^ and that Britton specially mentions earls, barons, knights, and Serjeants.^ As between mesne lord and mesne tenant the land law had become property law ; but this was not altogether the case as between the king and his tenants in chief. The king's court and the common law had no doubt sapped the political strength of the feudal baron ; but that court was itself organized and staffed by officials whose names and duties recalled the days of feudalism. The state which had sapped the strength of feudalism was still organized on a feudal model. This naturally tended to emphasize the older view that the high officials of the state held both their official estates and their offices by the same tenure ; and that the king was therefore entitled to exercise some control over all alienations either of land or of office. A rule applied to one class of tenants in chief was easily applied to all ; and thus the very cause which promoted the free alienation of land in the case of the mesne tenant, may have hindered it in the case of the tenant in chief. Moreover, as we have seen, the king, who was always lord and never tenant, had not the same interest as other lords in allowing freedom of alienation on the terms settled by the statute Quia Emptores.* But such a rule, when applied to all tenants in chief, became more and more inconvenient, as, owing to the operation of the statute Quia Emptores, more and more land came to be held directly of the crown. The law as settled in Edward III.'s reign gave to the crown one more feudal incident — the fine for ^ I Edward III. st. r cc. 12 and 13 ; cp. 33-35 Ed. I. (R.S.) 306 — perhaps a case of land held ut de honore, and Hengham's doubt as to whether the tenant could or could not alienate may be based on this. In Y.B. 20 Ed. III. (R.S.) i 90 it is stated in argument that then no tenant in chief could subinfeudate. By the statute 34 Edward III. c. 15 all subinfeudations made by tenants in chief under Henry III. and his predecessors were confirmed ; the statute of 1327 was always taken to apply to tenure by serjeanty, Cromwel's Case (1601) 2 Co. Rep. at ff. 80b, 8ia. 2 Above 83 n. 10. 3 i 222, " Neither can earls, barons, knights, or Serjeants who hold in chief of us, so dismember our fees without our leave as that we may not lawfully eject the purchasers." ^ Above 80. FEUDAL RESTRICTIONS 85 alienation ; but it left all tenants free to alienate their lands. Restraints on alienation based upon feudal principles had ceased to exist. We shall see, when we come to trace the history of the estate tail, that the courts were astute to prevent the creation of of any new restraints upon this freedom of alienation.^ The result of these developments was so to strengthen the bias in favour of freedom of alienation which the common law had always possessed, that it came to be regarded as a fixed principle depending upon " reason " or public policy. This feeling comes out very clearly in many of the Year Books,^ and was stated in its final form by Littleton.^ "If a feoffment be made upon this condition that the feoffee shall not alien the land to any, this condition is void ; because when a man is enfeoffed of lands and tenements he hath power to alien them to any person by the law : for if such a condition should be good, then the condition should oust him of all the power which the law gives him, which should be against reason ; and therefore such a condition is void." To which Coke adds that such a restraint would, in the case of a chattel, be " against trade and traffic and bargaining and contract- ing between man and man."* Thus it is clear that Bracton and Littleton and Coke all regarded these restraints upon the power of a tenant in fee simple to alienate freely as contrary to public policy ; but if they had been asked to give concrete reasons for so regarding them, they would all have assigned somewhat differ- ent causes. Bracton would have said that they were contrary to the conception of dominium, and would also have emphasized the importance of breaking up the solidarity of the feudal group. Littleton would have emphasized the importance of maintaining the principle of freedom of alienation because it was a principle of the common law. Coke would have had in view the attempt of the landowners to create perpetuities,^ and he emphasized, as we have seen, the commercial advantage of a free circulation of property. Though the reasons assigned by these three lawyers would have been different, all had in their minds the impolicy of a general restriction on the power of the tenant in fee simple to alienate. It followed from this that both a condition restraining aliena- tion, not generally, but to a particular person,^ and a condition that the feoffee shall reconvey to the feoffor, and that if he does not, the feoffor should have a right to re-enter,"^ were valid, because such conditions did not impose either a general or an indefinite ^ Below 117-120. 2 Above 8i n. i. ^§ 360; see Sweet, Restraints on Alienation L.Q.R. xxxiii 242-243. "» Co. Litt. 223a. 5 Bk. iv Pt. II. c. i § 6. « Litt. § 361. ' These conditions were very common at this period as they generally formed part of the mediaeval family settlement, below 250-251 ; cp. L.Q.R. xxxiii 248-249. 86 THE LAND LAW restraint upon the freedom of alienation. The same reasoning applied also to a restriction upon a tenant of a smaller estate than an estate in fee simple. To such tenants the statute of Quia Emptores had no application, so that there was not the same opportunity for a feeling against restraining alienation by such tenants to grow up. But, right down to the end of the mediaeval period, some of the judges were inclined to disallow such restraints even upon these tenants ; ^ and it was not till the beginning of the seventeenth century that it was finally decided to allow, in favour of a reversioner, the imposition of a restriction upon the freedom of alienation of a tenant for life or years,^ but to refuse to allow such a restriction to be imposed upon a tenant in tail.^ In later law: the courts have allowed other forms of modified restraint upon freedom of alienation. But the law relating to them has been confused by a failure to distinguish between restrictions which are invalid because they impose an undue restriction on freedom of alienation, and limitations which fail because they are limited to vest at too remote a date — i.e. because they infringe the rules against perpetuities.^ Though the mediaeval land law had thus evolved rules which protected the freedom of alienation it had evolved no rules against remoteness of limitation. Such rules were not then needed, be- cause, as we shall see, landowners had very limited powers of creating future estates in the land.^ Therefore the danger that landowners would use their powers to alienate freely to destroy freedom of alienation had not yet arisen ; and it was not till it arose in the latter half of the sixteenth century that rules against perpetuities became necessary. But we shall now see that an analogous danger had arisen during this period owing to the desire of landowners to make gifts to religious houses ; but that this danger had been adequately met, even before it was completely realized, by the legislation which prohibited such gifts. (ii) Restraints upon alienation to religious houses. 1 have already said something of the loss of all the incidents of tenure which necessarily followed a gift to a religious house — a gift iSee Y.BB. 21 Hy. VI. Hil. pi. 21; 8 Hy. VII. Hil. pi. 3; 13 Hy. VII. Pasch. pi. 91, where Fineux, C.J., at p. 23, and Townshend and Vavisor, J.J., at p. 24 were in favour of the restriction, and Brian, C. J., at p. 23 was against it ; Bk. iv. Pt. II. c. i §7. 2 Bk. iv Pt. II. c. I § 7 ; L.Q.R. xxxiii 243. 3 Mildmay's Case (1606) 6 Co. Rep. at f. 43a ; though he might be restrained from alienation by feoffment or fine because these conveyances had a tortious operation, Y.BB. cited below 119 n. 9 ; L.Q.R. xxxiii 244. ^Gray, Perpetuities (2nd ed.) Introd. ; L.Q.R. xxxiii 236-237; on restraints against alienation see Gray's book on this subject, and Mr. Sweet's two articles, L.Q.R. xxxiii 236, 342 ; on the history of the rules against perpetuities see Bk. iv Pt, II. c. I § 6. ''Below 134-136. i ALIENATION IN MORTMAIN 87 in mortmain.^ The clause of Magna Carta was enforced by the Provisions of Westminster ^ in 1259. This clause of the Provisions of Westminster was not re-enacted in 1267; but in 1279^ the statute De Viris Religiosis — the first Statute of Mortmain — put a stop to all sales or gifts of land to religious houses without the king's licence ; ^ and this prohibition was extended to all corporate bodies in Richard II.'s reign. ^ Though modern statutes have created some exceptions to the general law,*' the prohibition has been maintained from the thirteenth century to the present day. It is true that the reasons for the law are no longer the same. The incidents of tenure are things of the past. The law is now maintained because to give land to a corporation is to render it wholly, or almost wholly inalienable. Though a restriction on the freedom of alienation, it is a restriction in name only ; for, like the modern rule against perpetuities, it is maintained in order to promote the freedom of alienation. The history of the elimination of the older restraints upon alienation points to the same conclusion as the history of the free H tenures and their incidents — the land law is fast becoming a branch ^L^of the private law of property. Thus we find that legal interest ^Bin the land law tends to centre rather upon the nature of the estates ^Rwhich persons may have in the land than upon the tenures by ^B which it is held. Littleton's book is a treatise upon tenures; but K he deals first, as we have seen, with estates. I must now say HL something of some of these estates ; but before describing them I ^■•must first say something of the doctrine of seisin, upon which ^Kdepends not only much of the learning as to estates, but also the ^» learning as to many other branches of the land law. 1 Vol. ii 348-349. ^c. 14, •' Viris autem religiosis non liceat ingredi foedum alicujus sine licentia capitalis domini, de quo scilicet res ipsa immediate tenetur." 3 7 Edward I. ; vol. ii 348 ; attempted evasions of the statute were always met by fresh statutes, 13 Edward I. st. i c. 32 (collusive recoveries), 34 Edward I. st. 3 ; 15 Richard II. c. 5 (preventing conveyances in mortmain by way of use). In the statute Quia Emptores it is stated that nothing in the Act is to enable gifts to be made in mortmain. With respect to leases for years the courts seem to have held that a lease, e.g. for 80 years, which was obviously likely to exceed the duration of a life estate, was hit by the statutes, Y.B. 4 Hy. VI. Hil. pi. i ; but that a lease for 20 or 40 years might be good, Y.B. 3 Ed. IV. Mich. pi. 8 (p. 13) per Nele arg. ; and this view seems to have been approved, see Cotton's Case (1613) Godbolt at p. 192 ; Heming v. Brabason (1660) O. Bridg. at p. 7; Jesus College v. Gibbs (1835) i Y. and C. (Ex.) at p. 147; but it is doubtful whether this distinction is now applicable in viewof the definition of "assurance" in the Mortmain Act of 1888, 51, 52 Victoria c. 42 § 10 (i) (ii) ; see Halsbury, Laws of England viii 367 n. (^), where all the authorities are collected. 4 See Y.BB. 30, 31 Ed. I. (R.S.) 535-536; 32, 33 Ed. I. (R.S.) 499 (a licence in mortmain) ; i, 2 Ed. II. (S.S.) 14 (an enquiry as to a collusive evasion of the statutes) ; 14 Ed. III. (R.S.) 1 ii 1 iii (an apparently successful evasion by means of collusive litigation). ^ 15 Richard II. c. 5. ^51, 52 Victoria c. 42, 88 THE LAND LAW § 5. Seisin Seisin means possession. It is derived from the same root as the Roman possessio and the German besitz. " The man who is seised is the man who is sitting on land ; when he was put in seisin he was set there and made to sit there." ^ If we except those parts of the land law which deal exclusively with the nature of the free tenures and the definition of their incidents, it would be true to say that this branch of the law is dominated by the conception of seisin. The meaning and consequences of seisin constitute the background of principle which gives colour and unity to its various rules. We have seen that it was just about the time when Littleton was writing his Tenures that the term " seisin " was appropriated to describe the possession of freehold estates in land, while the term " possession " was appropriated to chattels.^ This separation shows that the seisin of freehold estates in land, which was protected by the real actions, had come to differ from the possession of chattels, protected only by personal actions. I have said also something as to the meaning and conse- quences of seisin at different periods in the history of the law.^ Here I shall attempt to sum up the history of the development of the doctrine, and to estimate the position which it held in the law at the end of this period. But before I endeavour to explain the mediaeval doctrine upon this matter it may conduce to clearness if I recall what may be called the modern — the " general juris- prudence " — point of view. Ownership and possession are sufficiently familiar topics in mature systems of law. Such systems of law regard ownership as the relation of a person to a thing which gives to the person indefinite rights enforceable at law to or over the thing. When considering a question of ownership we attend not so much to the physical relation between the person and the thing, as to the question whether the relation between them has been so constituted that the law will annex to it these indefinite rights ; for ownership is pre-eminently a right. Possession, on the other hand, expresses the physical relation of control exercised by a person over a thing. The possessor may or may not be owner, according to whether or not this physical relation of control has been constituted under conditions to which the law annexes the rights of ownership. If in all cases where such physical control existed the law annexed the right of ownership, the law relating to possession would merge in the law relating to ownership. But this is not the case. For many causes arising both ex contractu and ex delicto the owner ^ P. and M. ii 29, 30. '^ Vol. ii 581 and n. 2, 3 Ibid 205, 262, 353-355. S^i, 582-588. SEISIN 89 of property is not the possessor. The relationships between persons and things grow more complex with the growing com- plexity of social relations ; ^ and the law must define the many kinds of subordinate control excercised by persons over things which co-exist together with or in opposition to the principal control which it calls ownership. Thus we get a law of possession which, both in Roman and in English law, covers many species of subordinate control, and exists side by side with a law of ownership. This general theory is, of course, a generalization from the rules of mature systems of law. Primitive systems of law have no such abstract conceptions as those of ownership and possession. They are concerned rather with the invention and maintenance of rules for the settlement of disputes.^ Here I must trace the history of the process by which the common law attained a theoiy about the ownership and possession of land. The history of that process is, in relation to the land law, the history of the development of the doctrine of seisin. We have seen that the common law has not, and never has had, any theory of ownership like that of the Roman law. It had no action like the Roman vindication which protected an abstract right of dominium. The writ of right simply decided the question of better right to possession as between the demandant and the tenant. In other words, it was a form of action directed, not to establish the abstract right of the demandant, but to settle a dispute between two litigants.^ No doubt when Henry II.'s reform allowed the question of better right to be tried by the grand assize* instead of by battle, more consideration could be given to the title of the parties. It is true that Bracton, using Roman terms, talks of the action as establishing t\\Q proprietas of the successful party.^ But that the majusjus established by the writ of right was not the proprietas of Roman law we may see by asking what the demandant must plead and prove in order to substantiate his claim, and what the tenant can plead in order to substantiate his defence. The demandant must plead and prove that he or his ancestors had a better right to the possession than the tenant or his ancestors at some period within the existing statutes of limitation.^ This he will do by showing that he has been in possession or has done such acts — e.g. collected the rents from tenants or made livery of seisin — as only a possessor could do. The tenant must deny the 1 See the passage from Bentham cited Pollock and Wright, Possession 6-10. 2 Vol. ii 78-79. 3 Above 7. * Vol. i 328. ^f. 434b, " Est etiam jus proprietatis quod dicitur jus merum." It is probable that this "j/zs merum " is a mistaken translation of the Anglo-French mere dreit, i.e. majcur droit, P. and M. ii 77 ; cp. Bracton's Note Book case 240. « Above 7, 8 ; L.Q.R. ii 484. 90 THE LAND LAW demandant's claim and prove any facts he alleges to show that he has the better right to possession. But he cannot say to the demandant, '' You have not proved your case because X, a third person, through whom neither of us claims, has a better right than either of us, and this I am prepared to prove." ^ Seeing that the demandant need only prove a better right to possession and not an absolute dominium^ the tenant cannot rely upon a jus tertii through which he does not claim.^ The question at issue is the better right of the parties to possession ; and if this be the issue such a jus tertii is merely irrelevant.^ This, it would seem, is a principle which is common to many bodies of Germanic law.^ Even the writ of right, therefore, did not decide the abstract question of ownership. Still less was such a question at issue in the newer forms of action — the assizes and the writs of entry — which, as we have seen, superseded the writ of right. ^ The question at issue in these forms of action was simply the question of seisin. " Did A disseise B ? " " Did A enter on the land through {per) X, which X disseised B ? " An answer is required to a question of fact. No question of law is directly suggested ; though, as we have seen, many such questions might incidentally arise. No doubt in describing the nature and incidents of seisin, and the modes in which it could arise and terminate, Bracton borrowed much substantive law from Rome.*^ No doubt he was almost bound to do so, because the novel disseisin (the most summary of the actions which protected seisin, because it excluded all questions as to the right to seisin) was borrowed from Roman sources. No doubt he often talks as if the right to seisin protected by the writ of right could be compared with the dominium protected by a vindication just as truly as the seisin protected by ^ But in Y.B. 6 Ed. II. (S.S.) 244-245 a third person, not a party to the plea, was allowed to intervene to prove that he was the person really entitled ; this, however, is a very different matter to allowing one of the parties to invoke in his defence the right of an absent third person. 2 P. and M. ii 75, 76 ; the principle may also be illustrated from the pleadings in cases of inheritance, see below 180-181. Note that the rules as to the conditions under which the ju^ tertii may be pleaded as a defence by the tenant in possession were different in the later action of ejectment, and therefore in modern law, Bk. iv Pt. II. c. I § 2. 3 This principle is illustrated by Y.B. 20 Ed. III. (R.S.) ii 248-252; in that case a gift was made to E. and the heirs of her body by W. ; a writ of formedon in the descender was brought by J., and it was said in the writ that the land ought to descend to J. " post mortem praedictorum W. et E. ; " the writ was abated because, the gift being to E., there was no need to recite the death of W. in the writ ; to the argument that it was necessary to recite it because he might have been entitled to an estate by the curtesy, Willoughby, J., said, " Although you would not have an action against him (W,), or against anyone who had his estate, at any rate your action would be maintainable against a stranger who could not claim anything of his estate." *Schulte, Droit de L'Allemagne (Tr. Fournier) 448-453, 467-468, and the authorities there cited. ''Above 8-14, ^Vol. ii 282, J SEISIN 91 the novel disseisin could be compared with \hQ possessio protected by the interdicts. But the position in English law of the seisin protected by the novel disseisin or the writs of entry differs from the position of the ^omdi\-\ possessio because the English law knows no dominium with which it can be compared. English law only knows various rights to seisin, some more recent, some less recent, which can be asserted by different forms of action.^ In Roman law dominium, and possessio can be and are sharply contrasted. In English law we can only compare seisin with seisin, the seisin protected by the writ of right with that protected by the writ of entry, the seisin protected by the writ of entry with that protected by the novel disseisin — the older, in short, with the more recent. English law protects seisin and various rights to seisin of varying dates by different forms of action.^ It is seisin therefore, or the right thereto, which the law protects ; and the law follows out rigidly the consequences of this conception, (i) The person seised is the person who can exercise all the rights of an owner. (2) The person not seised may have a right of entry or action ; but till he has entered or recovered seisin by action he has none of the rights of an owner. Let us look at the results which flow from these two principles.^ (i) The person seised may make a feoffment and convey an estate in fee simple — a tortious estate, it may be, but still an estate in fee simple.* " The disseisor claimeth fee and right and freehold till his tort be proven." '^ " Every tenant by disseisin has a fee until his estate be defeated." ^ ** A feoffment de facto made by them that have such interest or possession [as a lessee for years or a tenant by elegit] is good between the parties and against all men, but (i.e. except) only against him that hath a 1 Bracton ff. 434b, 435, is discussing the case where, after the death of an ancestor, a younger son gets seisin, dies seised, and transmits the land to his heirs ; in that case, '* transmittit ad hasredes suos cum jure possessionis quod ipse habuit quasi in foedo quoddam jus proprietatis cum jure possessionis ipsius, quod sequi debeat primam proprietatem, et sic de haerede in hasredem usque in infinitum, et sic erunt ibi duo jura proprietatis per diversum descensum et diversas personas et gradus. Sed unus eorum majus jus proprietatis habebit propter prioritatem, sicut frater antenatus et ipsius haeredes, et illi minus jus qui descendunt de fratre postnato . . . plura possunt esse jura proprietatis, et plures possunt habere majus jus aUis." 2Y.B. 14, 15 Ed. III. (R.S.) 218, "Every one who is named in the writ of assize can deny the //aiwfi^'s title, that is to say, the seisin; " Lightwood, Possession of Land 150, truly says that in English law " there is no marked distinction between ownership and seisin. Seisin is the source of a right of property which is always valid as against persons with an inferior right. It may be defeasible because some one else has a better right, but as against a stranger at any rate it is good." 2 See Maitland's article on " The Mystery of Seisin," L.Q.R. ii 481 seqq. ; and cp. H.L.R. iii 25-28. ^Bracton f. 11; Litt. § 611; ChalHs, Real Property (2nd ed.) 371; Williams, Seisin 7. 5 Y.B. 6, 7 Ed. II. (S.S.) 89 per Scrope, J. « Y.B. II, 12 Ed. III. (R.S) 202. 92 THE LAND LAW right." ^ This principle was followed out logically. The heir of the person seised will succeed to his property ; ^ and it is only a person seised who can be a stock of descent.^ His widow is entitled to dower.* The husband of a woman seised as of wrong is entitled to curtesy.^ Rights appendant to the estate belong to the disseisor.^ The fact that there is a person seised of the land will prevent that land escheating to the lord, even though the disseisee — the person entitled — has died without heirs.''' Similarly, it seems that all the ordinary incidents of tenure affect the tenant seised as of wrong just as if he had been the rightful tenant.^ (2) The position of the person disseised is the exact converse of this. He has nothing which he can alienate. To alienate effectually he must make livery of seisin.^ Not having seisin, he has only a right of entry or action — a chose in action, which, till 1845, was inalienable.^*^ At common law, said Mount- ague, C.J., in 1553, "he who was out of possession might not bargain, grant or let his right or title, and if he had done it, it should have been void." ^^ His right of action may, it is true, descend to his heir ; but the time will come when, owing to the operation of statutes of limitation, even that right of action will be lost. His wife is not entitled to dower. He, if married to a woman disseised, is not entitled to curtesy. Of a mere right of action, and in the Middle Ages of a right of entry, there could be no escheat ; nor did such rights render those entitled thereto liable to any of the other incidents of tenure. ^^ Now we have seen that at the end of this period the rights of the disseised tenant as against the disseisor were so far extended that he had in most cases a right of entry ; ^^ and that his rights 1 Co. Litt. 367a. 2 Bracton f. 435 ; 15 Ed. III. (R.S.) 330 ; cp. 5 Ed. II. (S.S.) {1311-1312) 204-207. 3Y.B. 20 Ed. III. (R.S.) ii 12-16; below 172. *Y.B. 13, 14 Ed. III. (R.S.) 314. 316; cp. Y.B. 5 Ed. II. (S.S.) (1312) ijj per Spigurnel, J. 5L.Q.R. ii 488; cp. Litt. §§ 393, 394. «Y.B. 14 Ed. III. (R.S.) 24; but see Y.B. 8 Ed. II. (S.S.) 196-197 where a doubt is expressed as to an advowson appendant. ' L.Q.R. ii 486, 487 and references there cited, especially Y.B. 6 Hy. VII. Mich. pi. 4 (p. 9) per Brian ; for the later modification of the law on this point see Bk. iv Pt. II. c. I § 2. 8 L.Q.R. ii 487, 488 ; Y.B. 17, 18 Ed. III. (R.S.) 324. » Below 221-222, 224. 1° Up till 8, 9 Victoria c. 106 § 6 ; see Ames, H.L.R. iii 337, " The rule that a chose in action is not assignable was a rule of the widest application. A creditor could not assign his debt. A reversioner could not convey his reversion, nor a re- mainderman his remainder. A bailor was unable to transfer his interest in a chattel. And . . . the disseisee of land or chattels could not invest another with his right to recover the res or its value ; " cp. Y.B. 3, 4 Ed. II. (S.S.) 9 where to a writ of for- feiture of marriage it was pleaded that the plaintiff was never seised of the ward. 11 Partridge v. Strange (1553) Plowden at p. 88. ^2 Rushden's Case (1533) Dyer at f. 5a ; L.Q.R. ii 485-488 ; for later modifications of these rules see Bk. iv Pt. II. c. i § 2. i3Vol.ii 583-585. i SEISIN 93 of action were similarly extended by the omission to pass any effective statutes of limitation.^ We have seen that such cases as the cases of descents which tolled entries, or discontinuances, where the true owner's right of entry could not be