There is hardly a rule of our legal terminology better settled than that which is broken by the title of this paper. There is no such thing known to our law as the seisin of chattels; one may be seised of land, but of a chattel, real or personal, one shall be possessed, not seised. Of course, one may seize chattels, and between seizure and seisin the etymologist may see a close connection, but he that would commit a really bad blunder let him speak of the seisin of chattels.
Seemingly, it has been the general opinion that this distinction, now well marked, between possession and seisin is of very ancient date, an outline of immemorial common law, and could we accept one common description or definition of seisin this opinion would be forced upon us as inevitable. “Seisin,” said Lord Mansfield 2 , and his words have passed into the text-books, “is a technical term to denote the completion of that investiture by which the tenant was admitted into the tenure, and without which no freehold could be constituted or pass. Sciendum est feudum, sine investitura, nullo modo constitui posse. Feud. lib. 1, tit. 25; lib. 2, tit. I; 2 Craig. lib. 2, tit. 2.” Here seisin appears as a distinctly feudal notion, and the question why there is no seisin of chattels is answered at once:—There is no tenure of movables, and the termor has no fee or feud. But it will have occurred to many readers as a little strange that Lord Mansfield, instead of vouching some English writer, Glanvill or Bracton, Littleton or Coke, to warrant what he thus said about a word which, for many centuries, had been constantly in the mouths of English lawyers, should have appealed to certain ancient Lombards and a modern Scotchman. The truth seems to be that there was no old English authority available for the purpose. Seisin is possession; that is what Bracton says at the outset, that is what Coke says at the close of the mediæval period; one and the other would have been surprised to hear that any act or consent on the lord’s part is necessary to constitute seisin.
Now, it can, as I believe, be shown that the notion of seisin, so far from having any very close connection with those ideas and institutions which we call feudal, had not even any exclusive reference to land. From time whereof there is no memory until the fifteenth century was no longer very young, English lawyers often, and in some contexts habitually, spoke about and pleaded about the seisin of chattels. Attempt will here be made to prove this assertion. The question is not one barely about the use of words. The gulf between what we call real property, and what we call personal property, is so wide and deep and ancient that we are constantly tempted to overrate its width, depth, and antiquity, and thus, perhaps, we sometimes miss important points in the history of the law. We shall hardly understand all that may be understood of that history, if we steadily refuse to bring land and goods into any relation with each other. Especially is this true when we are dealing with possession or seisin. Seisin and disseisin seem so mysterious a matter that, in despair of rational explanation, we are glad to have so satisfactory a word as feudalism wherewith to hush the questioner. It may be possible, however, that some of the mystery might be even more effectually dispelled if we understood what our old law said about the possession of goods, and from possibility we might pass to probability, if we really found that it was once a common thing to be seised of goods.
Having to argue for a conclusion which, perhaps, runs counter to general belief, a considerable mass of evidence must be pleaded. The argument should be guarded against two objections. It must be made clear that we are not confusing seisin with seizure, seisin with being seised. It must be made clear that we have not fallen into a trap set for us by some pleader’s blunder, some reporter’s carelessness, or some text-writer’s whim, but are tracing an orthodox and habitual use of words. While, however, the reader’s patience is begged for a number of citations and references, he must be asked not to expect too much. The mass of our printed information concerning the treatment of chattels in the thirteenth and fourteenth centuries is small indeed, when compared with the vast bulk of materials for a history of real property, and for the more part we shall be forced to rely on replevin cases in which the possession of chattels is just mentioned, but the whole argument turns on the title to land or rent.
We will take just one step beyond the limit of legal memory in order to notice the Leges Henrici Primi. There we find two phrases which we shall meet elsewhere. The thief who is taken with the mainour is de furto seisiatus (cap. 26). When a man has been distrained he is to be allowed to replevy his goods, et seisiatus placitet , that is, as I understand, he need not plead until he is seised (cap. 29, § 2).
We pass from this instructive apocrypha to the first book in the orthodox canon. Glanvill twice has occasion to mention possession of goods; each time he calls it seisina . The pledgee of movables may have seisin of them— cum itaque res mobiles ponuntur in vadium ita quod creditori inde fiat seisina (lib. 10, cap. 6). The plaintiff in an assize of novel disseisin recovers seisin of the land and seisin of his chattels also, seisinam omnium catallorum (lib. 13, cap. 9).
In Bracton there is very much to be read of seisina and possessio , and to me it seems that he uses the two words as precisely equivalent, though, perhaps, for him seisina is the vulgar word, possessio the technical and correct Latin term to be found in the Roman law books. We shall return to this hereafter, when we speak of chattels real. Bracton has hardly ever occasion to mention the possession of movables, but with him, as with the writer of the Leges Henrici, the hand-having back-bearing thief is seisitus de latrocinio , and is in seisina (fol. 150 b, 154 b). Fleta (fol. 54, 62) copies, Britton (vol. I., p. 56) translates these phrases. There can be no prosecution in the court of a lord having franchise of infangthief, unless the accused de rebus insecutis fuerint seisiti ; in other words it is only over mesfesours trovez seisiz that such a lord has jurisdiction. Clearly, to say that a thief was taken seisitus de furto , or seisitus de latrocinio , was to use a technical phrase about an important point. It is used in the Assize of Clarendon—“si aliquis fuerit captus qui fuerit seisiatus de roberia vel latrocinio.” Bracton again (fol. 122) says that if the coroner hears of treasure trove he must inquire si aliquis inde inventus sit seisitus . Elsewhere (fol. 440 b) he discusses what is to be done if the defendant in an action of debt will not appear; his suggestion is, bonum esset adjudicare querenti ab initio seisinam catallorum secundum quantitatem debiti petiti .
Between Glanvill and Bracton we might have noticed an entry in the Placitorum Abbreviatio (p. 12) of Richard the First’s time. The roll of the King’s Court says that the wax in question has been replevied, and that he whose it was is seised of it ( cera illa fuit replegiata et ille cujus illa fuit est inde saisitus ). Just from Bracton’s time the same book gives a count in trespass, which charges the defendant with having sent his men to violently interrupt the proceedings of a jury, et de quodam juratore abstulerunt quemdam gladium et adhuc sunt in seisina de eodem gladio (p. 129, Mich. 37 38 Hen. III.).
An examination of rolls belonging to the first years of Henry the Third has supplied a dozen criminal cases in which the seisin (always seisina and never possessio ) of chattels is treated as a most important matter. It is just a question of life and death whether the thief was taken in seisin of the stolen goods ( seisitus de bonis furatis ), whether the manslayer was taken in seisin of the murderous weapon ( seisitus de cnipulo sanguinolento ). If he was seised he can be hanged offhand; if he was not seised, then, unless he will put himself upon his country, he cannot even be tried, he can only be kept in custody. Sometimes a phrase that is yet more “feudal” is found, the thief was “vested and seised” of the stolen goods. The Mayor and bailiffs of Wallingford took a man vested and seised of an instrument for clipping coins:—invenerunt ipsi predictum Johannem vestitum et seisitum de seisina illa; he of course denied the seisin, deffendit saisinam illam 1 . Another man had stolen tin at Bodmin; the appellor saw him vested and seised of the tin and burying it in the ground:—ipsum vidit vestitum et seisitum de stagno furato 2 . One other case 3 is noticeable for many reasons. The justices in eyre who went to Devonshire in 1218 hanged two men for receiving stolen goods. Their sons appealed to the king against the consequent forfeiture—“et quia videtur consilio domini regis et iusticiariis de banco quod male et iniuste suspensi fuerunt eo quod non fuerunt seisiti de aliquo furto vel roberia, nec aliquam roberiam cognoverunt, nec per dictum iuratorum potuerunt de iure dampnari, consideratum est quod heredes eorum non exheredentur, et ideo preceptum est vicecomiti quod eis terram suam habere faciat etc., et iusticiarii in misericordia”! Justices at this date had occasion to know something about the seisin of chattels. As to possessio and possideo , I have never yet found these words on any of these early rolls save in one context. The exception is instructive:—the parson possesses ( possidet ) the church. Here we touch the domain of the Canon Law; the fact of possession is to be established by the bishop’s certificate. But we will go back to the evidence already in print, which really is sufficient for our purpose 1 .
The recently printed Year Books of Edward the First give us several examples. I quote Mr Horwood’s translations.
21 22 Edwd. I, p. 10. Note, that in the Replegiari, the plea ought not to proceed while he who took the beasts is seised of what he took (est seysy de la prise).
21 22 Edwd. I, p. 20. Note, that where one complains that B tortiously took his chattels, such as corn or other chattels (except beasts), he ought to mention the value, but there is no need to mention the value of beasts, although the taker is still seised of the beasts (tut seyt le pernur uncore sessi de les avers).
21 22 Edwd. I, p. 56. Note, that where, in an action for taking of beasts, one counts against the lord, and the lord is seised of the beasts (e le seygnur seyt seysi de avers), and avows the taking, there is no need for the plaintiff to reply to the avowry until he has the deliverance made.
The rule laid down by the first and third of these passages is that which seems to be indicated by the seisiatus placitet of the Leges Henrici. If goods have been taken in distress they must be delivered to the claimant or security must be given for their delivery before he pleads to the avowry, and so seisiatus placitet . The second passage gives us the phrase uncore sessi , used to describe the distrainor when no deliverance has yet been made. That phrase will haunt us for some time to come.
21 22 Edwd. I, p. 589. Trespass for taking thirty swans. Plea the plaintiff himself is seised of the swans (seysy de synes).
32 33 Edwd. I, p. 197. Replevin; the plaintiff says that the defendant is still seised of the beasts (uncore seisi de nos avers).
It is only with the greatest caution that one may cite the Mirror of Justices . The author of that book, who probably wrote in Edward the First’s reign, was moved by a bitter hatred of the King’s judges, who, in his opinion, were distorting the ancient law and oppressing the people. Unfortunately, he was not content with stating his grievances, but chose to propagate a mass of fables about King Alfred and the old law. The book has never been carefully edited or thoroughly examined, and possibly its writer may hereafter be acquitted of that charge of wilful dishonesty which his would-be quotations from imaginary records very naturally provoke. But it is just worth notice that he speaks 1 , in one and the same breath, of seisin and livery of seisin of lands and goods, and argues that the purchaser of goods ought to be considered as seised of the goods so soon as the vendor has quitted them. Livery of seisin is seemingly necessary to perfect the sale of a horse; and the author, unless I have misunderstood him, complains that a brief but actual seisin by the purchaser has not been considered sufficient.
We have now to face the series of Year Books stretching, with some breaks, from Edward the Second to Henry the Eighth.
Hil., 14 Edwd. II, fol. 421. Count in replevin, the defendant has taken beasts et uncore est seisi .
Mich., 18 Edwd. II, fol. 561. Similar count, vous estes unqore seisi .
Hil., 10 Edwd. III, fol. 5, pl. 14. Similar count, et dit que il fuist uncore seisi des avers .
Hil., 21 Edwd. III, fol. 51, pl. 3. Similar count, et counta que il fut encore saisi del’ boef .
Mich., 38 Edwd. III, fol. 22. Trespass: the lord who has taken a heriot says, that because it was the best beast nous le seisimes apres la mort G. et fuimes seisis tanque vous , etc.
Hil., 39 Edwd. III, fol. 4. The king has been seized of an estray, ad este seisi , for a year and day.
Hil., 42 Edwd. III, fol. 6, pl. 18. Plaintiff counts that the defendant has arrested his wool et adhuc in arrestatione detinet . Plea, the plaintiff himself ceo jour est seisie de les biens .
Mich., 47 Edwd. III, fol. 23, pl. 55. Plea in trespass de bonis aportatis: un J. W. fuit seisie de mesmes les chateaux, et morust seisie, et fist mesme cestuy R. son executor, le quel seisist les chateaux . In the discussion, possession and seisin are used indiscriminately.
Mich., 6 Rich. II [Fitz. Abr. tit. Replication , pl. 60]. Nostre testatour morust seisi de mesme les biens apres que mort nous les happamus et de eux seisi fuomus tanque les defendants les pristrent hors de nostre possession . Three times in a brief note occurs this phrase— morust seisi de mesmes les biens . Must we not say, with the reporter, issint vide que moreant seisi de biens est material ?
Pasch., 7 Hen. IV, fol. 15, pl. 20. Il mesme est seisie de mesmes les biens .
Mich., II Hen. IV, fol. 2, pl. 4. Il detient uncore nos berbits et est seisie .
This phrase, still seised , with which we are now becoming familiar, occurs also in a petition to the King in Parliament of 1321–1322. The parson of Kippax, in Yorkshire, complains that certain persons have driven off his horses and sheep, and that the beasts have come to the hands of the Earl of Arundel’s bailiffs, who uncor sunt seisis de eux . ( Rot. Parl ., vol. I., p. 394, no. 41.)
I have not cited by any means all the instances in the books of Edward the Second and Edward the Third that have caught my eye, but I have probably cited quite enough to show that in the fourteenth century it was common to speak of a man as seised of movables. There is a long, and I think unbroken, line of cases which show that the usual form of a count in replevin, when the beasts had not yet been delivered, stated that the distrainor was still seised of the beasts. But some of our examples will prove that similar phrases were used in other contexts. It was quite right to say, for example, that a testator died seised of goods, and that afterwards his executors were seised.
But now there begins a change in the terms used in replevin cases. In Pasch., 7 Hen. IV, fol. II, pl. 2, we find il detient a tort , where, according to precedent, we should have expected uncore seisi . But the struggle between the two phrases is not yet over. Twice in the early years of Henry the Sixth we meet with the older term.
Mich., 3 Hen. VI, fol. 15, pl. 20. Nous vous disons que le defendant est uncore seisi de les avers .
Nous disons que vous mesmes estes seisis de eux .
Hil., 4 Hen. VI, fol. 13, pl. 11. Le defendant est uncore seisi del’ taure .
These are the last instances that I have at hand. From this time onwards uncore seisi seems definitely supplanted by uncore detient . Thus we have:—
Pasch., 21 Hen. VI, fol. 40, pl. 8. Il uncore detient nos bestes .
Hil., 1 Hen. VII, fol. 11, pl. 16. Il uncore detient .
Mich., 5 Hen. VII, fol. 9, pl. 21. Et le plaintiff counta sur un Uncore detient .
I have kept back to the last, perhaps the most striking piece of evidence, because of its somewhat uncertain date. The Novae Narrationes is a brief collection of precedents for counts or declarations in French. It was printed by Pynson without date 1 , and was more than once reprinted. Coke in one of his prefaces (3 Rep.) puts it into a class of old books along with Glanvill, Bracton, Britton, Fleta and Hengham, which he distinguishes from a class of newer books, comprehending the Old Tenures , the Old Natura Brevium and Littleton. In another of his prefaces (10 Rep.) he says that the Novae Narrationes was published “about the reign of King Edw. III.” The Latin version of the same preface has the more definite “juxta initium regni Regis Edw. 3 in lucem prodiit.” This date, however, is too early for the book as printed, for just at the end of it there is a declaration on the Statute of Labourers, which declaration is supposed to be made after the third year of Richard the Second. More about its date I cannot say. Near the end of Henry the Sixth’s reign 1 the judges treat Les Novels Tales as a very high authority. Coke says that the book to which they refer is the work now in question, the Novae Narrationes .
Now, this book contains a precedent for a count in replevin, which describes the distrainor as still seised, unquore seisi 2 . There is also a count in detinue by the purchaser of a cow, who has paid a penny in earnest ( en arras ), and it sets forth that cesty A. luy bailla un denier en arras, et del denier il fuit seisie 3 .
The appearance of such phrases in a book of precedents is strong evidence that they were at least permissible, but I am not sure that it is stronger evidence than that afforded by the Year Books. It should not be forgotten that some of the instances above cited come from a time when pleadings were jealously scanned, in the hope that some verbal flaw might be detected in them; but though it is easy to find examples of objections, and successful objections, which seem to us very captious and unreasonable, I have not met with any instance in which exception is taken to the use of this word seised in connection with chattels, personal or real.
Now, however, we must cite the decisive passage in Littleton’s Tenures (sec. 324), which proclaims once and for all that the differentiation between seisin and possession has taken place:—
“Also, when a man [in pleading 1 ] will show a feoffment made to him, or a gift in tail, or a lease for life of any lands or tenements, then he shall say, by force of which feoffment, gift, or lease, he was seised, etc., but where one will plead a lease or grant made to him of a chattel, real or personal, then he shall say, by force of which he was possessed, etc.”
Littleton, it is supposed, wrote between 1474 and 1481. We have brought down our series of counts in replevin containing the words uncore seisi to 1426. The series containing uncore detient begins in 1443. Of course very little stress should be laid on these dates, for many cases may have been overlooked, and it would be easy to draw false inferences from the casual use of a phrase. Still the evidence tends to show that there had been a change in the terms used in pleading, just long enough before Littleton’s day to make his express statement intelligible.
We have not yet spoken of chattels real, and will in this instance reverse our procedure and work from the latest authority to the earlier. And here the first witness to be called is Littleton himself, for he says (sec. 567), “Also if a man letteth tenements for term of years by force of which lease the lessee is seised,” thus himself using the very phrase that he has condemned as incorrect. We shall easily pardon this slip if we look to the older authorities, for at worst it was an archaism.
What we should expect in such a context of course is “by force of which he is possessed,” or, in the orthodox law Latin, “virtute cujus possessionatus est.” Just about Littleton’s time we find this phrase in the Year Books.
Mich., 21 Edwd. IV, fol. 10, pl. 1. Par force de quel il fuit possesse . But some seventy years earlier the other phrase occurs.
Pasch., 1 Hen. V, fol. 3, pl. 3. Count in Ejectione firmae: lease for twenty years, par force de quel il fuit seisie .
In the earlier Year Books there are very few instances in which a leaseholder pleads his title; but, skipping a century, we have
Mich., 6 Edwd. II, fol. 177. Count in Quare ejecit: lease for ten years, par quel lese A. fuist seisi .
Mich., 3 Edwd. II, fol. 49. Count in Covenant by lessee; lease for 10 years to A., par quel lees il fuist seisi ii aunz .
Instances from the reign of Edward the First are still plainer:—
32 33 Edwd. I, p. 529. Covenant; count by a lessee on a lease for five years of the provostship of Derby; the count, as enrolled in Latin, states that the lessees were seisiti .
30 31 Edwd. I, p. 142. Covenant; count that J. leased the land to Roger for eight years par quel lees il fut seisy for a certain time, and that then Roger leased to Robert par queuz lees il fut seisy for four weeks.
21 22 Edwd. I, p. 23. Count in covenant by lessee of a rent; lease for ten years par queu les yl fut seysy de cele par deus anz .
20 21 Edwd. I, p. 254. Covenant by lessee; defendant says that by virtue of a lease for twenty years the plaintiff fut sesy .
20 21 Edwd. I, p. 278. Covenant by lessee’s son; lease for twenty years to my father, par quel les yl fut seysy un an .
It will occur to the reader, that the value of this evidence depends on the comparative frequency of the words seised and possessed in counts by leaseholders; I must say therefore, that while I can produce, from the Year Books of the two first Edwards, seven examples of pleadings which describe the termor as seised, I have not found one in which he pleads that he is possessed. Certainly, my investigations have been far from exhaustive, and have consisted rather in following the references given in indices and abridgements under hopeful headings, than in fairly reading from cover to cover, but unless, round about the year 1300, it was strictly and technically correct to plead that a termor is seised by force of his lease, I have had a very strange run of bad luck.
Lastly, we may again refer to the Novae Narrationes and there find several precedents of Covenant, Quare ejecit, and Ejectione firmae, in which the termors are made to say that they are seised. Thus, Hubert Mappe leased a messuage to Adam Pye for a term of years not yet ended, per qui le dit Adam fuit seisy del mees avaundit . On the other hand, in one of the precedents the termor is said to have been in peaceable possession . It is noticeable that this is a precedent in Ejectione firmae, a specialised form of trespass vi et armis, and a newer remedy for the termor than the Quare ejecit, or the still older writ of covenant. This would lead us to believe that it did not become definitely wrong to speak of the termor as seised until after the end of the fourteenth century, and we have seen one precedent which contains the objectionable phrase in the Year Book of 1413.
Here again, then, our evidence points to the fifteenth century as the time when the distinction was first firmly established. But probably the differentiation was a gradual process. At first possessio and seisina are the same thing. Take two very old maxims with which all lawyers are still well acquainted. If we ask why possessio fratris de feodo simplici facit sororem esse haeredem, the answer is because seisina facit stipitem. But gradually, as it seems to me, the words become appropriated, and the lawyers in the Year Books, though, in pleading, they will speak of a man as seised of chattels, begin to talk of possession directly they begin to argue. It looks as if seised was becoming an antiquated word to use of chattels, a word which one might still have to use in formal pleading, but one which struck the ear as antiquated, or, perhaps, even incorrect. But what flaw could be seen in it? The answer will probably be found in the curious history of leaseholds, for the beginning of which we may look in Bracton’s book.
Now Bracton, as already said, has to mention possessio and seisina a very large number of times, and always treats them as interchangeable; as Dr Güterbock has well said 1 , beide Worte werden promiscue gebraucht. His definition of possessio is founded on the Roman authorities, but is taken directly from the Italian lawyer Azo. Possessio est corporalis rei detentio, i.e. corporis et animi cum juris adminiculo concurrente (fol. 38 b). Now, whatever Azo may have meant by this requirement of juris adminiculum (and he seems to have thought it necessary in order to include certain cases of constructive possession), seemingly Bracton meant no more than that there are certain persons and things, such as free men and things sacred, of which there can be no possession (fol. 44 b). In general, he remains quite faithful to the notion that seisin or possession is pure matter of fact, the detention by body and mind of a corporeal thing. Nor is this mere Roman ornament, which can be stripped off without damage to the fabric of English law as reared by Bracton, for on this depends his whole learning about the scope of that commonest of all actions the assize of novel disseisin. Lord Mansfield’s theory that seisin implies some act or concurrence on the lord’s part most certainly is not Bracton’s theory. Seisin with him is simply possession, and has little to do with homage or fealty 1 .
It is, of course, possible that Bracton’s very rational account of seisin is just a little too rational, but we have the clearest proof that it is not mere romance, and we may doubt whether on any other part of our law the Latin learning of the thirteenth century made so practical and so permanent an impression. We have, happily, now in print a considerable collection of assizes taken during that period, and they constantly put before us seisin as simply and merely possession, a matter of fact independent of feudal relationships and institutions. When the question is whether a certain person was seised, if there be any mention at all of homage or fealty, of suit or service (and such mention is comparatively rare), these matters are treated, not as constituting seisin, but as being evidence of seisin, evidence tending to prove that this man or that was really possessor. Roger Clifford, for example, in the 36th of Henry the Third, brings an assize of mort d’ancestor against his younger brother, Geoffrey. Geoffrey pleads a gift made to him by their father, John, in his lifetime. Roger replies that the gift is naught, because John never really gave up possession to Geoffrey. The words are remarkable: quia quamvis Johannes pater ipsorum terram illam ei [Galfrido] dedisset per cartam, nunquam se dimisit de terra illa corpore nec animo . Then the assize finds the facts at length, and, among them, that John went on doing suit for the land after the gift. This is put before the court, not as conclusive, but as one of many facts which prove that John never ceased to possess, though he went through the idle form of going off the land and sleeping somewhere else for a night. ( Placit. Abbrev ., p. 128 1 .) This is a type of a considerable class of cases. Having no testamentary power, land-owners will try both to give and to keep. The court deals with such cases in a most reasonable way; full statements of the relevant facts are obtained from the assize, and the decisions are really no more dictated by feudalism, in any sense of that hard-worked word, than are modern decisions about voluntary settlements. Doubtless, there was a constant tendency to make seisin a matter of forms and ceremonies, of sacramental acts with rod or twig or hasp of door. So long as possession has legal consequences some persons will always be trying to substitute mummery for the real thing. “Of which goods and chattels, I, the said T. A., have put the said F. C. in full possession by delivering to him one chair”; the date of this formula is not 1268 but 1868 1 . But the thirteenth century decisions on the question, seised or not seised, show a remarkable disregard for formalities, a remarkable determination to make that seisin which the law protects just a real and actual possession.
But this by the way; Bracton, though he does not distinguish between seisin and possession, has another distinction which is noteworthy. He repeatedly distinguishes between being in seisin and being seised, between being in possession and possessing. One who possesses or is seised has, if ejected, the assize of novel disseisin, but a person may be in seisin or possession nomine alieno, and if he be ejected the possessory remedy belongs not to him, but to that other on whose behalf he was in possession. Thus, in one place he turns our modern terminology just upside down; the farmer is in seisin, but he does not possess (fol. 165); quia longe aliud est esse in seisina, quam seisitus esse, sicut longe aliud est esse in possessione quam possidere 2 (fol. 206). In the view that he generally takes the termor does not really possess, he only holds possession for his landlord, and this is the reason why he has not the possessory remedy, the assize of novel disseisin.
We are familiar with the saying that, of old, the termor was little more than his landlord’s servant or bailiff. Now, it is a very natural thing indeed to say that a servant does not possess his master’s lands or goods, though he has sole charge of them. Mr Justice Holmes, in his lecture on possession, has well remarked how freehanded our old law was of its possessory remedies, how it attributed possession of goods to bailees whom the civilians would not have accounted possessors; still it drew the line above the servant who, in his master’s house, has custody of his master’s goods. Now, in Bracton’s opinion, the termor is denied the assize, not because he has a less estate than becomes a free man (is there really any record of a free man saying that a term of years was beneath his dignity?), but because tenet nomine alieno ; in this he resembles the custos, procurator, usurarius, hospes, servus (fol. 165, 167 b, 168, 206).
Bracton’s adoption of this phraseology prepared a difficulty for him which he had to meet (fol. 220) when explaining how, after all, the termor has a possessory remedy against some ejectors, and a remedy which will restore him to possession, the Quare ejecit infra terminum. But it seems from Bracton’s own words that the difficulty was quite new, because this remedy had but recently been invented by the court (de consilio curiae), as a more efficient protection than the old writ of covenant. In later days tradition ascribed the invention of the new writ to Bracton’s contemporary, Walter of Merton ( Old Natura Brevium , fol. 122 b), and more than once in the Year Books the writ is noticed as an innovation. Now, so long as the writ of covenant was the termor’s one remedy, it was very natural and proper to deny that he possessed; he had not a possession which the law protected, he had merely a contractual right. But the newly invented remedy had given him a sort of possession; it enabled him to recover his term if ejected, at least if the ejector was a purchaser from his lessor, and, whatever may have been the rule at a later date, Bracton apparently thought 1 that this writ would enable the termor to recover his term even if ejected by a stranger. In describing this remedy he has to allow the termor a sort of possession, or rather, as it happens, a sort of seisin (fol. 220 b). His Roman authorities suggest to him that the termor has a usufruct, that a usufruct is but a servitude, something like a right of way. This, perhaps, should have led him to say that the termor has not possession of the land, but only quasipossession of a servitude over land possessed by another (iuris quasi possessio), but I do not think that he quite accepts this doctrine, and the most explicit statement to be had from him is that both lessor and lessee are in seisin of the tenement, the one as of his term, the other as of the freehold, quia istae duae possessiones sese compatiuntur in una re quod unus habeat liberum tenementum et alius terminum (fol. 13 b). Elsewhere (fol. 264) he can casually speak of tenant for years as seisitus .
Very probably Bracton’s verbal distinction between being in seisin and being seised, between being in possession and possessing, was a little too subtle to catch the English ear; and certainly the suggestion that a termor’s interest is a servitude over another’s land, so that the termor is quasi-possessed of a servitude, but not possessed of land, did not take root in this country. It would have been difficult to work that suggestion into a system of law which, from the outset, most unhesitatingly gave seisin to the tenant for life. A student, fresh from Roman law or “general jurisprudence,” may be puzzled when he finds Mr Joshua Williams treating an estate in remainder or reversion as an incorporeal hereditament to be contrasted with that corporeal hereditament an estate of freehold in possession, but in our old law this seems an elementary idea of first importance; the tenant for life is not a usufructuary with only a servitude and no land; on the contrary, he has the land, it is the reversioner who has an incorporeal thing. So, I take it that for some considerable time after Bracton’s day it was a matter of much uncertainty how the termor’s interest should be conceived; and lawyers were free to say, and did actually say, that the termor is seised of the land as of his term, while his lessor is seised of the land as of freehold. There was no great need for the decision of an almost metaphysical question. During the thirteenth and fourteenth centuries the termor played but a very insignificant part in English law. Gradually, however, he forced himself upon the notice of the courts, and acquired one remedy after another for the protection of his term. It became necessary to fix his position. What could be said of him? It was quite impossible to regard him any longer as one who holds possession on behalf of another; on the other hand, it was important to mark the fact that his remedies were very different from the old possessory remedies of the freeholder. He had never had, he never acquired, the assize of novel disseisin, though we may note by the way that the author of the Mirror , in several passages, declared that it is an abuse of the law to deny this assize to the termor and to the tenant in villenage 1 . A word to describe the termor’s situation was wanted, and possession (a term comparatively free of technical implications) lay vacant and unappropriated. The termor, then, is possessed, not seised.
It is rather the verbal solution of the difficulty than the difficulty itself that is peculiar to England. In the yet unromanized law of mediaeval Germany Gewere (a word which we can only translate by seisin ) plays, as I understand, very much the same part that seisin plays in England and in France; not quite so important a part, because Henry the Second’s institution of definitely possessory remedies gave to possession a peculiar prominence in English and in Norman law, but still an important part. Now those who have of late studied the vast stores of old German law say that the German notion of Gewere differs from the Roman notion of possessio in this, that at one and the same time lord and tenant, or lord, mesne and tenant may have possession. The cultivator who is sitting on the land is seised of the land, but the lord also to whom he pays rent in money or kind is seised of the land. In a dispute between tenant and lord seisin and its procedural advantages are with the former, but in relation to outsiders each is seised. As Bracton says, istae duae possessiones sese compatiuntur in una re . It would indeed have been hard to force the wonderfully variegated phenomena of mediaeval land tenures into the pigeon-holes of a theory which will ascribe possession to but one person at a time, and say of all others, Non possident. And this, it is said, is what obscures the discussion of the Roman possessio by commentators and glossators, by Azo, for example. With the facts of their own time before them they could not hold the faith unitarian and Roman of one dominium and one possessio ; the lord has dominium directum , the vassal dominium utile , the lord possesses civiliter , the vassal possesses naturaliter , but none the less possesses for himself, and not for the lord: hence some wonderful confusions which Savigny had to clear away. We in England were fortunate in finding a second word at our disposal; so the termor is possessed and the freeholder is seised 1 .
From this it would be no long step to the assertion that there is no seisin of chattels, neither of chattels real nor of chattels personal. For why is not the termor seised? The ready answer would be because he has but a chattel. The origin of this strange saying “a term of years is a chattel” is not very certain, but seemingly it meant that the term could be bequeathed; for testamentary purposes it was quasi catallum . Bracton says (fol. 407 b) that the ecclesiastical court is not to be prohibited from entertaining a suit touching the bequest of a term, quia ususfructus inter catalla connumeratur . It was catallum as contrasted with that laicum feodum with which no Court Christian may meddle. The necessity for this fiction would in course of time be forgotten. The obvious facts would be that the termor is not seised and that the termor has a chattel; an inference would lie ready to hand. The time had long gone by when it could truly be said of the termor that he held nomine alieno, leases for years were becoming common and valuable, and it was easier to lay down as one of the final inexplicabilities of the law that of chattels, whether real or personal, there is no seisin, than to rake up an old story. It may seem a far-fetched doctrine that the reason why we cannot now be seised of a horse, or of a book, is because there was a time when the tenant of land for term of years had only a contractual right, but far-fetched though it be, it is fetched from England, not from Lombardy.
However, what has just been said is no better than guesswork, and is only submitted as such to the reader, who will easily discriminate what is stated as fact from inferences and conjectures. But he will notice that such evidence as has been produced tends to prove that the distinction between seisin and possession became a settled distinction just about the time when the termor’s remedies against all men were finally perfected. The early history of the special writ of trespass known as Ejectione firmae is still in some respects obscure. It became the termor’s remedy against a stranger to the title who ejected him. Now, at the very end of the fourteenth century, it seems perfectly settled that this writ (unlike the Quare ejecit which will lie against a purchaser from his lessor) will only give him damages, and will not restore him to the land 1 . On the other hand, about the middle of the fifteenth century lawyers certainly speak as though possession might be recovered by this writ 2 . It is usual to refer to a decision in Henry the Seventh’s reign as having finally settled the question in favour of restitution. May we not, therefore, conjecture that the daily increasing necessity of distinguishing the title to bring Ejectione firmae from the title to bring an assize, forced upon the courts the verbal distinction between possession and seisin?
And when the middle ages are past and over, and Coke is summing up their learning, though he has many surprising things to tell us about the consequences of seisin, he can tell us no more about its meaning than that it is possession, but appropriated to freeholds. These are his sayings:—
Seisin or seison is common as well to the English as to the French, and signifies in the common law possession, whereof seisina a Latin word is made, and seisire a verb (Co. Lit. 153 a).
Seisin is a word of art, and in pleading is only applied to a freehold at least, as possessed , for distinction sake, is to a chattel real or personal (200 b).
Seised, seisitus , cometh of the French word seisin , i.e . possessio, saving that, in the common law, seised or seisin is properly applied to freehold, and possessed or possession properly to goods and chattels; although sometime the one is used instead of the other (17 a).
Nothing about investiture or admission of a tenant into the tenure, nothing feudal, simply possession, “ i.e . possessio.” The distinction has no mysterious basis in the eternal fitness of things; it is a distinction which exists “for distinction sake.” And, after all, of these two words, “sometime the one is used instead of the other.” Probably this last phrase does not so much refer to the usage of Coke’s own day (for the interpretation set upon several important Statutes, in particular the Statutes of Forcible Entry and the Statute of Uses, had by that time made it definitely incorrect for one to write of a termor as seised), as to the usage of an earlier day well known to Coke from his old books. Probably, he would indeed have thought scorn of the meagre list of examples which has been set forth above. In his day it was still too soon for an English Chief Justice to be severely and intelligently feudal. In course of time it became easier to read the Libri Feudorum than to read the Year Books, and “the total silence of Sir Edward Coke on the general doctrine of fiefs” became “a matter of some surprise.” Therefore, seisin shall be deemed a “technical term to denote the completion of that investiture by which the tenant was admitted into the tenure.”
We have been dealing, perhaps, too much with words, too little with rules; but a recognition of the fact that the lawyers of the thirteenth, and even of the fourteenth century, saw no harm in pleading about the seisin of chattels is of some importance, if the history of seisin, “ i.e . possessio,” is to be understood. It, at least, warns us away from an untrue explanation of that history. However strange may be the legal consequences which we find annexed to the seisin of land, they are not the result of a military policy, or anything of the sort, they are what were once considered the natural consequences of possession; and there is good reason for believing that, if we look closely enough at our comparatively few and scattered authorities for the early history of personal property, we shall find very much the same consequences annexed to the seisin of chattels.
It is very unfortunate that the passage (f. 220 b) in which Bracton most definitely faces the question as to the nature of the termor’s possession has become mere nonsense in the printed books. He is speaking of freeholder and termor and of the action Quare ejecit. This is what his latest editor makes him say; but the bracket [] is mine.
Poterit enim quilibet illorum sine praejudicio alterius, [quia rectè dicimus totū nostrum fundum esse, et cum usus fructus alienus sit, quia nō dominii pars est usufructus, sed servitus fit vel via etc. 1 Nec falsò dicitur meum esse, cujus non potest pars dici 2 alterius esse] in seysina, esse ejusdem tenementi, unus ut de termino et alius ut de feodo et libero tenemento 3 . Et datur ista actio haeredibus et competit contra haeredes ut supra in assisa novae disseisinae.
This of course is utter rubbish, and the translation of it given by Sir T. Twiss is neither better nor worse. I think it fairly certain that the bit of romanesque reasoning which I have placed within brackets is one of those marginal notes or glosses which, as Prof. Vinogradoff showed in the last number of this Review , have forced their way into the text. I have looked at twenty-one MSS. Six were indecisive, either because the whole passage had been abridged, or because it was missing or displaced. Five supported the printed text. Two others had done so when first written, but an attempt had been made to set the matter straight. Five give the bracketed passage after the words “et libero tenemento.” Three and the printed Fleta give it after “in assisa novae disseisinae.” Both of these last-mentioned arrangements make sense and the former makes good sense, but when there is so much doubt as to the place in the text at which some forty words should be introduced, the most natural inference is that they should not be in the text at all. Probably we ought to read the passage thus:—
Text . | Note . |
Poterit enim quilibet illorum sine preiudicio alterius in seisina esse eiusdem tenementi, unus ut de termino et alius ut de feodo vel libero tenemento. Et datur ista actio heredibus et competit contra heredes ut supra in assisa nove disseisine. | Quia recte dicimus totum fundum nostrum esse et cum ususfructus alienus sit, quia non dominii pars est ususfructus sed servitus sicut via vel iter, nec falso dicitur meum esse cuius non potest ulla pars dici alterius esse. |
What I take to be the gloss is not quite in harmony with the text. The text says boldly that each is in seisin of the tenement; the note suggests that the termor has only a servitude and no seisin of land. To harmonize English and Roman ideas was no easy task.
Any one who came to the study of Coke upon Littleton with some store of modern legal ideas but no knowledge of English Real Property Law would, it may be guessed, at some stage or another in his course find himself saying words such as these:—“Evidently the main clue to this elaborate labyrinth is the notion of seisin. But what precisely this seisin is I cannot tell. Ownership I know and possession I know, but this tertium quid , this seisin, eludes me. On the one hand when Coke has to explain what is meant by the word he can only say 2 that it signifies possession, with this qualification however that it is not to be used of movables and that one who claims no more than a chattel interest in land can not be seised though he may be possessed. But on the other hand if I turn from definitions to rules then certainly seisin does look very like ownership, insomuch that the ownership of land when not united with the seisin seems no true ownership.”
The perplexities of this imaginary student would at first be rather increased than diminished if he convinced himself, as I have convinced myself and tried to convince others, that the further back we trace our legal history the more perfectly equivalent do the two words seisin and possession become, that it is the fifteenth century before English lawyers have ceased to speak and to plead about the seisin (thereby being meant the possession) of chattels 1 . Certainly as we make our way from the later to the older books we do not seem to be moving towards an age when there was some primeval confusion between possession and ownership. We find ourselves debarred from the hypothesis that within time of memory these two modern notions have been gradually extricated from a vague ambiguous seisin in which once they were blent. In Bracton’s book the two ideas are as distinct from each other as they can possibly be. He is never tired of contrasting them. In season, and (as the printed book stands) out of season also, he insists that seisina or possessio is quite one thing, dominium or proprietas quite another. He can say with Ulpian, Nihil commune habet possessio cum proprietate 2 .
There are some perhaps who would have for the student’s questionings a ready and brief answer, satisfactory to themselves if not to him. If, they would say, you are thinking of ownership and applying that notion to English land, you indeed disquiet yourself in vain; dismiss the idea; it is not known, never has been known, to our law; land in this country is not owned, it is holden, holden immediately or mediately of the king. The questioner might be silenced; I doubt he would be convinced. In the first place he might urge, and it seems to me with truth, that the theory of tenure, luminous as it may be in other directions, sheds no one ray of light on the strangest of the strange effects which seisin and want of seisin had in our old law. In the second place he might appeal to authority and remark that Coke, who presumably knew some little of tenures, speaks freely and without apology of the ownership and even the “absolute ownership 1 “of land, while as to Bracton, who lived while feudalism was yet a great reality, for lands and for chattels he has the same words, to wit, dominium and proprietas .
But it may well be said, and this brings us to more profitable doctrine, that English law knew no true ownership of land because the rights of a landowner who was not seised fell far short of our modern conception of ownership. Deprive the tenant in fee simple of seisin, and he is left with a right of entry. Even now this would be the most technically correct description of his right. Until lately his right might undergo a still further degradation; from having been a right of entry it might be debased into a mere right of action.
Now it is to the nature of these rights, whether we call them ownership or no, or rather to one side of their nature, that I would here draw attention. To simplify matters as much as possible we may for the moment leave out of account all estates and interests less than fee simple. The question then becomes this, what is the nature of the rights given by our old law to a person who is lawfully entitled to be seised of land in fee simple when as a matter of fact some other person is seised? or (to use words which will not be misunderstood though they are not the proper words of art) what is the nature of the rights of an absolute owner when some stranger is in possession?
Such a student as I have imagined might well be prepared to find that possession by itself, or possession coupled with certain other elements such as good faith and colour of title, or possession continued for a certain period, would have certain legal effects, effects which would consist in protecting the possessor against mere trespassers, in entitling him to recover possession if ejected by a stranger, in depriving the true owner of any right to obtain possession save by recourse to the courts, in at last depriving that owner of all right whatever and conferring on the possessor a title good against all men. He might expect too that in a system rich in definite forms of action, some possessory some proprietary, the outcome of different ages, these effects would be very complicated; and certainly he would not be disappointed. He would, for example, find the ousted owner gradually losing his remedies one by one, first the remedy by self-help, then the possessory assizes, then the writs of entry, lastly the very writ of right itself. He would here find much to puzzle him, for the rules as to the conversion of a right of entry into a right of entry into a right of action seem to us quaint and arbitrary. Still all these manifold and complex effects of possession and dispossession, seisin and want of seisin, are of a kind known and intelligible, partly due to formalities of procedure and statutory caprices, but tending in the main to protect the possessor in his possession and uphold the public peace against violent assertions of proprietary right; analogies may be found in other systems of law modern as well as ancient.
But this is far from all. Seisin has effects of a quite other kind. The owner who is not seised not only loses remedies one by one but he seems hardly to have ownership, and this, not because all lands are held of the king, but because as regards such matters as the alienation, transmission, devolution of his rights he seems to be in a quite different position from that in which we should expect to find a person who, though he has not possession, has yet ownership. Let a few rules be repeated that were law until but a short while since. They are well known, but it may be worth while to put them together, for they make an instructive whole.
(1) Until the 1st of October 1845, a right of entry could not be alienated among the living 1 . In other words, the owner who is not seised has nothing to sell or to give away.
An explanation of this rule has been found in the law’s dislike of maintenance. It may be given in the words of Sir James Mansfield:—“Our ancestors got into very odd notions on these subjects, and were induced by particular causes to make estates grow out of wrongful acts. The reason was the prodigious jealousy which the law always had of permitting rights to be transferred from one man to another, lest the poorer should be harassed by rights being transferred to more powerful persons 1 .” This bit of rationalism is of respectable antiquity; it is certainly as old as Coke’s day 2 ; and true it is that at one time our laws did manifest a great, but seemingly most reasonable 3 , jealousy of maintenance and champerty, of bracery and the buying of pretenced titles. But still the explanation seems insufficient. Its insufficiency will be best seen when we pass to some other rules. In passing, however, let us notice how deeply rooted in our old law this rule must be. We come upon it directly we ask the simplest question as to the means of transferring ownership. What is the one “assurance,” the one means of passing ownership, known to the common law? Why, if we leave out of account litigious proceedings real or fictitious, it is the feoffment, and there must be livery of seisin, that is, delivery of possession. One cannot deliver possession to another when a third person is possessing; so a right of entry cannot but be inalienable. Or put it this way: our old law has an action which is thoroughly proprietary, which raises the question of most mere right, the writ of right, the only hope of one who cannot base his claim on a recent possession. Yet even in the writ of right the demandant must count upon his own seisin or on the seisin of some ancestor, and thence deduce a title by descent; he cannot count on the seisin of a donor or vendor, “for the seisin of him of whom the demandant himself purchased the land availeth not 1 .” This is a rule which can be traced from Coke to Bracton 2 , a rule of procedure, be it granted, but a rule which shows plainly that he who has no seisin has nothing that he can give to another. But to this matter of alienation inter vivos we will return.
(2) Before the 1st of January 1838 3 a right of entry could not be devised by will. About devises of course we cannot expect much ancient common law. The question depended on the meaning of the statutes of 1540 4 and 1542 5 ; but the manner in which these statutes were interpreted is worthy of note. Throughout the verb used of the person who is empowered to make a will is the verb to have . The person who has any manors, lands, tenements or hereditaments may dispose of them by will. But though some modern judges did not much like the interpretation, still the old interpretation was that the disseised owner has not any land, tenement, or hereditament, and therefore has nothing to leave by his will 6 . A case from the year 1460 shows plainly that before the statutes a similar rule prevailed; to give validity to a devise under local custom it was essential that the testator should die seised, though it was doubted whether he need be seised when making the will 1 .
(3) Until the 1st of January 1834 2 seisina fecit stipitem . Now this when duly considered seems a very remarkable rule, for it comes to this, that a land-owner who has never been in possession has no right that he can transmit to his heir, or in other words, that ownership is not inheritable. Such a person may be (to use a venerable simile) the passive “conduit-pipe” through which a right will pass, but no one shall ever get the land by reason that he was this man’s heir; a successful claimant must make himself heir to one who was seised. But what explanation have we for this? A fear of maintenance very obviously fails us, and as it seems to me feudalism must fail us, and as it seems to me feudalism must fail us also, unless we are to suppose a time when seisin meant not mere possession but possession given, or at least recognized, by the lord of the fee. But for imagining any such time we have no warrant. It seems law from the first that the rightful tenant can be disseised, though the lord be not privy to the disseisin, and that the disseisor will be seised whether the lord like it or no.
And to constitute a new stock of descent a very real possession was necessary. The requisite seisin was not a right which could descend from father to son; it was a pure matter of fact. Even though there was no adverse possessor, even though possession was vacant, the heir was not put into seisin by his ancestor’s death; an entry, a real physical entry, was necessary. We all know the old story of the man who was half inside half outside the window, and who was pulled out by the heels. It was certainly a nice problem whether he possessed corpore as well as animo ; but at any rate on this depended the question whether he had been seised and could maintain the novel disseisin against those who extracted him 1 .
(4) The Dower Act of 1833 2 for the first time gave a widow dower of a right of entry; but for that statute the widow of one who has not been seised goes unendowed. It is true that in this case “a seisin in law or a civil seisin” would answer the purpose of “a seisin in deed 3 .” But this “seisin in law” only existed when possession was in fact vacant. A man was seised neither in fact nor yet in law if some other person had obtained and was holding seisin. If such an one did not get seisin during the coverture his wife would get no dower.
Here it may be remarked that seisin did to some extent become a word with many meanings or rather shades of meaning. The seisin which is good enough for one purpose is insufficient for another. “What shall be said a sufficient seisin” to give dower, to give curtesy, to constitute a stock of descent, to maintain a writ of right 4 —each of these questions has its own answer. But I believe that the variations are due (1) to the treatment of cases in which no one has corporeal possession of the lands, and (2) to the application of the idea of possession to subjects other than lands, namely, the incorporeal hereditaments, an application which must necessarily be difficult and may easily be capricious. No fictitious seisin in law was, so far as I am aware 1 , ever attributed to one who however good his title was clearly dispossessed, to one whose land was being withheld from him by a stranger to the title. And the “seisin in law” may well set us thinking. When we hear that A is B in law we can generally draw an inference about past history:—it has been found convenient to extend to A a rule which was once applied only to things which were B in deed and in truth; in short, there was a time when A was not B even in law. For a few but by no means all purposes we may say with the old French lawyers, “le mort saisit le vif”; the seisin in law would, e.g . give dower, but it would not make a stock of descent.
(5) To give a husband curtesy seisin during the coverture was necessary. This rule has never yet been abolished, though it has been somewhat concealed from view both by Equity and by statutes.
So far we have been concerned with rules which are still generally known, and one of them, the rule about curtesy, has not yet become a matter for the antiquary. It now becomes desirable to glance at some obscurer topics. Since we are sometimes assured that in one way or another the strange effects of seisin and want of seisin are due to feudalism, we ought to ask how the rights of a lord were affected by the fact that “the very tenant,” the true owner, was out of seisin and some other person in seisin.
Suppose tenant in fee simple is disseised and then dies without an heir, what can be plainer on feudal principles (feudal principles as understood in these last times) than that the land will escheat to the lord, that the lord will be able to recover the land from the disseisor or from any person who has come to the land through or under the disseisor? But such was not the law even in the last, even in the present century, and if it be law now, a point about which I had rather say nothing, this must be the result either of the statutes which have deprived feoffments and descents of their ancient efficacy or else of a convenient forgetfulness. In Coke’s day it seems to have been settled that from the original disseisor the lord could obtain the land either by entry or by action (writ of escheat), provided that he had not accepted the disseisor as tenant. If however before the death of the disseisee the disseisor made a feoffment in fee, or died seised leaving an heir, there was no escheat at all, “because the lord had a tenant in by title”; he had, that is, a tenant who could not personally be charged with any tort. Of a right of action, as distinguished from a right of entry, there was no escheat; “such right for which the party had no remedy but by action only to recover the land is a thing which consists only in privity, and which cannot escheat nor be forfeited by the common law 1 .” What is more, it had been held that the most sweeping general words in acts of attainder would not transfer such rights to the crown; they were essentially inalienable, intransmissible rights.
But if we go behind Coke we find that so far from the law having been gradually altered to the detriment of the lords, if altered at all it had been altered to their profit. We come to a time when there seems the greatest uncertainty whether the lord can get the land from the very disseisor. The writ of escheat, his only writ, distinctly says that his tenant has died seised. I do not wish to dogmatize about a very obscure history, but it will be enough to say that under Henry VII Brian C. J. denied that the lord could enter or bring action against the disseisor 1 .
It was so with the other feudal casualties. Coke says 2 that if the disseisee die having still a right of entry and leave an heir within age the lord shall have a wardship. Doubtless the law was so in his day, but the earliest authority that he cites is from the reign of Edward III and to this effect—“In a writ of ward it is a good plea that the ancestor of the infant had nothing in the land at the time of his death; for if he was disseised the lord shall not have a wardship, neither by writ of ward nor by seizing him [the heir], until the tenancy is recontinued 1 .” But at all events of a right of action there was no wardship. On the other hand, if the disseisor died without an heir the lord got an escheat, if the disseisor died leaving an infant heir the lord got a wardship, though in either case his rights were defeasible by the disseisee. In short, the lord must take his chance; it is no wrong to him if his tenant be disseised; he cannot prevent this person or that from acquiring seisin, yet thus he may be a great loser or a great gainer. The law about seisin pays no regard to his interests.
There is another side to the picture we have here drawn. He who is seised, though he has no title to the seisin, can alienate the land; he can make a feoffment and he can make a will (for he who has land is enabled to devise it by statute), and his heir shall inherit, shall inherit from him, for he is a stock of descent; and there shall be dower and there shall be curtesy, and the lord shall have an escheat and the king a forfeiture, for such a one has land “to give and to forfeit.” This may make seisin look very much like ownership, and in truth our old law seems this (and has it ever been changed 2 ?) that seisin does give ownership good against all save those who have better because older title. Nevertheless we err if we begin to think of seisin as ownership or any modification of ownership; after all it is but possession. A termor was not seised, but certainly he could make a feoffment in fee and his feoffee would be seised. This seems to have puzzled Lord Mansfield 1 , and puzzling enough it is if we regard seisin itself as a proprietary right, for then the termor seems to convey to another a right that he never had. But when it is remembered that substantially seisin is possession, no more, no less, then the old law becomes explicable. My butler has not possession of my plate, he has but a charge or custody of it; fraudulently he sells it to a silversmith; the silversmith now has possession: so with the termor, who has no seisin, but who by a wrongful act enables another to acquire seisin.
But, it will be urged, the termor’s feoffee (here is the difficulty) acquires an estate in fee simple and no less estate or interest. Certainly, and what of the silversmith who buys of the fraudulent butler? He has possession, and in a certain sense he possesses as owner; he claims no limited interest, such as that of a bailee, in the goods. How his rights would best be described at the present day we need not discuss, but it seems plausible to say that at least if an innocent purchaser, he has ownership good against all save those who have better because older title 2 . Regarded from this point of view the termor’s tortious feoffment is no anomaly. It is true that in our modern law there may be nothing very analogous to the process whereby an infirm title gained strength as it passed from man to man, the ousted owner losing the right to enter before he lost the right of action; still it is conceivable that in the interests of public peace law should, for example, permit me to take my goods by force from the thief himself, but not from one to whom the thief has given or sold them, nor from the thief’s executor. Thus would my entry be tolled and I should be put to my action 1 .
But this by the way, for the position of the nonpossessed owner is more interesting and less explicable than that of the possessed non-owner. Now we seem brought to this, that ownership, mere ownership, is inalienable, intransmissible; neither by act of the party nor by act of the law will it pass from one man to another. The true explanation of the foregoing rules will I believe be found in no considerations of public policy, no wide views of social needs, but in what I shall venture to describe as a mental incapacity, an inability to conceive that mere rights can be transferred or can pass from person to person. Things can be transferred; that is obvious; the transfer is visible to the eye; but how rights? you have not your rights in your hand or your pocket, nor can you put them into the hand of another nor lead him into them and bid him walk about within their metes and bounds. “But,” says the accomplished jurist, “this is plain nonsense; when a gift is made of a corporeal thing, of a sword or a hide of land, rights are transferred; if at the same time there is a change of possession, that is another matter; whether a gift can be made without such a change of possession, the law of the land will decide; but every gift is a transfer of ownership, and ownership is a right or bundle of rights; if gift be possible, transfer of rights is possible.” That, I should reply, doubtless is so in these analytic times; but I may have here and there a reader who can remember to have experienced in his own person what I take to be the history of the race, who can remember how it flashed across him as a truth, new though obvious, that the essence of a gift is a transfer of rights. You cannot give what you have not got:—this seems clear; but put just the right accent on the words give and got , and we have reverted to an old way of thinking. You can’t give a thing if you haven’t got that thing, and you haven’t got that thing if some one else has got it. A very large part of the history of Real Property Law seems to me the history of the process whereby Englishmen have thought themselves free of that materialism which is natural to us all.
But it will be said to me that this would-be explanation is untrue, or at best must take us back to a merely hypothetical age of darkness, because from time immemorial there were rights which could be transferred from man to man without any physical transfer of things, namely, “the incorporeal hereditaments which lay in grant and not in livery.” In truth however the treatment which these rights receive in our oldest books is the very stronghold of the doctrine that I am propounding. They are transferable just because they are regarded not as rights but as things, because one can become not merely entitled to, but also seised and possessed of them, corporeally seised and possessed. Seisin, it may be, cannot be delivered; I cannot put an advowson into your hand, nor can an advowson be ploughed and reaped; nevertheless the gift of the advowson will be far from perfect until you have presented a clerk who has been admitted to the church. In your writ of right of advowson you shall count that on the presentation of yourself or your ancestor a clerk was admitted, nay more, that your clerk exploited the church, took esplees thereof in tithes, oblations and obventions to the value of so many shillings 1 . But we may look at a few of these things incorporeal a little more closely.
And first then of seignories, reversions, remainders. These, it is said, lie in grant. But for all that the tenant of the land must attorn to the grantee; the attornment is necessary to perfect the transfer of the right. Such was the law in 1705 2 . Whence this necessity for an attornment?
It may be replied:—Here at all events is a feudal rule. Just as (before the beginning of clear history) the tenant could not alienate the land without the lord’s consent, so in the reign of Queen Anne the lord could not alienate the seignory without the tenant’s attornment. There was a personal bond between lord and vassal; the need of attornment is to start with the need of the tenant’s consent, though certainly in course of time he could be compelled to give that consent.
Now it may not be denied that in this region feudal influence was at work. To deny this one must contradict Bracton. But the sufficiency of the explanation should not be admitted until some text of English law is produced which says that the tenant can as a general rule refuse consent to an alienation. Bracton does say that except in exceptional cases there can be no transfer of homage unless the tenant consents; on the other hand he says that all other services can be transferred and the tenant shall be attorned velit nolit 1 . It is of course possible to regard this state of things as transitional, to urge that in Bracton’s day the tenant had already lost a veto on alienation that he once had; but before we adopt this theory let us see how much less ground it covers than the rules which have to be explained.
( a ) The doctrine of attornment holds good not only of a seignory and of a reversion but of a remainder also 2 ; but between the remainderman and the tenant of the particular estate there is no tenure, no feudal bond.
( b ) Much the same doctrine holds good when what has to be conveyed is the land itself (immediate free-hold) but that land is in lease for years. Here the transfer can be made in one of two ways. There may be a grant and then attornment will be necessary 1 , or there may be a feoffment. But if there is to be a feoffment, either the termor must be a consenting party or he must be out of possession 2 . If the termor chooses to sit upon the land and say “I will not go off and I will not attorn myself,” there can be no effectual grant, no effectual feoffment; recourse must be had to a court of law. But surely it will not be said that in the days of true feudalism, when, as we are told, the termor was regarded much as his landlord’s servant, he had a legal right to prevent his landlord from selling the land?
( c ) The doctrine of attornment holds good of rents not incident to tenure 3 . The terre-tenant will not hold of the grantee of the rent, nevertheless he must attorn if the grant is to have full efficacy. Indeed the learning of rents as it is in Coke 4 , and even as it is at the present day, seems to me very suggestive of an ancient mode of thought. The rent is regarded as a thing, and as a thing which has a certain corporeity (if I may so speak); you may be seised, physically possessed of it; you have no actual seisin until you have coins, tangible coins, in your hand. On getting this actual seisin much depended; in modern times a vote for Parliament 5 . An attornment would give you a fictitious “seisin in law”; nothing but hard palpable cash would give you seisin in fact. Such an incorporeal hereditament as a rent can be given by man to man just because it occasionally becomes corporeal under the accidents of gold or silver; this seems the old theory.
Now as to attornment, a valuable analogy lies very near to our hands. Suppose that we shut Coke upon Littleton and open Benjamin on Sales. Describing what will be deemed an “actual receipt” of sold goods within the meaning of the Statute of Frauds, Mr Benjamin writes thus:—“When the goods, at the time of the sale, are in the possession of a third person, an actual receipt takes place when the vendor, the purchaser, and the third person agree together that the latter shall cease to hold the goods for the vendor and shall hold them for the purchaser. . . . All of the parties must join in the agreement, for the agent of the vendor cannot be converted into an agent for the vendee without his own knowledge and consent 1 .” This is familiar law, and surely it explains much. Baron Parke used a very happy phrase when he said that there is no “actual receipt” by the buyer “until the bailee has attorned, so to speak” to the buyer, a happy phrase for it explained the obscure by the intelligible, the old by the modern 2 .
Without transfer of a thing there is no transfer of a right.
Starting with this in our minds, how, let us ask, can a reversioner alienate his rights when a tenant for life is seised, how can a tenant in fee simple alienate his rights when there is a termor on the land? There is but one answer. The person who has the thing in his power must acknowledge that he holds for or under the purchaser. If he does this, then we may say (as we do say when construing the Statute of Frauds) that the purchaser has “actually received” the thing in question. It is I admit difficult to carry this or any other theory through all the intricacies of our old land law. The fact that in course of time there came to be two legally recognized possessions, first the oldfashioned possession or seisin which no termor can have ( possessio ad assisas ), and then the new-fashioned possession which a termor can have ( possessio ad breve de transgressione ), complicates what, to start with, may have been a simple notion 1 . But the clue is given us in some words of Britton:—tenant in fee wants to alienate his land, but there is a farmer in possession; until the farmer attorns there can be no conveyance, car la seisine del alienour sei continue touz juirs par le fermer, qui use sa seisine en le noun le lessour 2 ; the seisin is held for the alienor until the farmer consents to hold it for the alienee. So when the person on the land is tenant in fee simple, here doubtless he is seised on his own behalf, seised in demesne, but the overlord also is seised, seised of a seignory, or, as the older books put it, he holds the land in service ( non in dominico sed in servicio ); he holds the land by the body of his tenant; he can only transfer his rights if he can transfer seisin of the seignory; he transfers seisin when the tenant admits that he is holding under a new lord 1 . So with a rent which “issues out of the land”; we cannot make a rent issue out of land, or turn the course of a rent already issuing, unless we can get at the land; if some one else has possession of the land, it is he that has the power to start or to divert the rent. This phrase “a rent issuing out of land” would seem to us very wonderful and very instructive, had we not heard it so often. What a curious materialism it implies!
Bracton’s whole treatment of res incorporales shows the same materialism, which is all the more striking because it is expressed in Roman terms and the writer intends to be very analytic and reasonable. Jura are incorporeal, not to be seen or touched, therefore there can be no delivery ( traditio ) of them. A gift of them, if it is to be made at all, must be a gift without delivery. But this is possible only by fiction of law. The law will feign that the donee possesses so soon as the gift is made and although he has not yet made use of the transferred right. Only however when he has actually used the right does his possessio cease to be fictiva and become vera , and then and then only does the transferred right become once more alienable 2 .
Of all these incorporeal things by far the most important in Bracton’s day and long afterwards was the advowson in gross, and happily he twice over gives us his learning as to its alienability with abundant vouching of cases 1 . To be brief:—If A seised of an advowson grants it to B , and then the church falls vacant, B is entitled to present. Thus far have advowsons become detached from land. But if before a vacancy B grants to C , and then the parson dies, who shall present? Not C , nor B , but A . Not C , for though B had a quasi-possession when he made the grant he had no real possession, for he had never used the transferred, or partially transferred, right; he had nothing to give; he had nothing. Not B , for whatever inchoate right he had he has given away. No, as before said, A shall present, for the only actual seisin is with him. One has not really got an advowson until one has presented a clerk and so exploited one’s right.
We may take up the learning of advowsons some centuries later. The following comes from a judgment not unknown to fame, the judgment of Holt in Ashby v. White 2 . He is illustrating the doctrine that want of remedy and want of right are all one. “As if a purchaser of an advowson in fee simple, before any presentment, suffer an usurpation and six months to pass without bringing his quare impedit he has lost his right to the advowson, because he has lost his quare impedit which was his only remedy; for he could not maintain a writ of right of advowson; and although he afterwards usurp and die and the advowson descend to his heir, yet the heir cannot be remitted, but the advowson is lost for ever without recovery.” So, as I understand, stood the law before the statute 7 Ann. c. 18. It comes to this, that if the grantee who has never presented suffers a usurpation, and does not at once use a special statutory remedy 1 , his right, his feeble right, has perished for ever. Writ of right he can have none, for he cannot count on an actual seisin. Very precarious indeed at Common Law was the right of the grantee who had not yet acquired what could be regarded as a physical corporeal possession of a thing. Indeed when we say that these rights lay in grant we use a phrase technically correct, but very likely to mislead a modern reader.
Space is failing or I would speak of franchises, for even to negative franchises, such as the right to be quit of toll, does Bracton apply the notion of seisin or possession; and the more the history of the incorporeal hereditaments is explored, the plainer will it be that according to ancient ideas they cannot be effectually passed from person to person by written words: there is seisin of them, possession of them, no complete conveyance of them without a transfer of possession, which, when it is not real must be supplied by fiction. But now if we put together all the old rules to which reference has here been made (and I will ask my readers to fill with their learning the many gaps in this brief argument), does it not seem tahat these “very odd notions” of our ancestors, which Sir James Mansfield ascribed to “particular causes,” were in the main due to one general cause? They point to a time when things were transferable and rights were not. Obviously things are transferable, but how rights?
And here let us remember the memorable fact that the chose in action became assignable but the other day. The inalienability of the benefit of a contract, like the inalienability of the rights of the disseised owner, has been set down to that useful, hard-worked “particular cause,” the prodigious jealousy of maintenance. The explanation has not stood examination in the one case 1 , I doubt it will stand examination in the other. According to old classifications the benefit of a contract and the right to recover land by litigation, stand very near each other. The landowner whose estate has been “turned to a right” (a significant phrase) has a thing in action, a thing in action real. There is a contrast more ancient than that between jus in rem and jus in personam , namely, that between right and thing. Of maintenance there is, I believe, no word in Bracton’s book, but that there can be no donatio without traditio is for him a rule so obvious, so natural, that it needs no explanation, though it may be amply illustrated by cases on the rolls. What the thirteenth century learned of Roman law may have hardened and sharpened the rule, but it seems ingrained in the innermost structure of our law.
I am far from saying that within the few centuries covered by our English books it has ever been strictly inconceivable that a right should be transferred without some transfer of a thing, or without some physical fact which could be pictured as the use of a transferred incorporeal thing. Should it even be proved that the Anglo-Saxon charter or “book” passed ownership without any transfer of possession, this will indeed be a remarkable fact, but far from decisive, particularly if the proof consist of royal grants. The king in council may have been able to do many marvellous feats not to be done by common men, and we know that ages before the year 1875 the king could assign his chose in action. But old impotencies of mind give rise to rules which perdure long after they have ceased to be the only conceivable rules, and then new justifications have to be found for the wisdom of the ancients, here feudalism, there a dread of maintenance, and there again a hatred of simony. So long as the rules are unrepealed this rationalizing process must continue; judges and text-writers find themselves compelled to work these archaisms into the system of practical intelligible law. Only when the rules are repealed, when we can put them all together and look at them from a little distance, do they begin to tell their true history. I have here set down what seems to me the main theme of that history. For this purpose it has been necessary to speak very briefly and superficially of many different topics, about every one of which we have a vast store of detailed and intricate information. Before any theory such as that here ventured can demand acceptance, it must be stringently tested at every point and other systems of law besides the English should be considered. But it seemed worth while to draw notice to many old rules of law which we do not usually connect together, and to suggest that they help to explain each other and are in the main the outcome of one general cause 1 .
In the year 1222, Archbishop Stephen Langton held at Oxford a provincial council, and of this council one result was that a deacon was burnt, burnt because he had turned Jew for the love of a Jewess.
I propose here to set in order the scattered evidence that we have for this story. This, so far as I am aware, has not yet been done, and it seems worth doing. The story became famous, for the passage in which Bracton made mention of it became the main, almost the only, authority for holding that, without help from any statute, English law can burn a heretic or, at least, an apostate. We have indeed no warrant for saying that from the death of this deacon until the death of Sautre in 1400 (whether Sautre was burnt under the statute of that year or under the common law, must not here be asked), no one in England was burnt for heresy, but we may say with some confidence that during this long period, near two hundred years, if English orthodoxy had a victim, there is no known record of his fate 2 .
Now for just so much of the tale as is told above we have testimony ample in quantity and excellent in quality. But I have purposely used a loose phrase:—the apostate’s death was a “result” of the council. If we strive to be more precise and ask by what authority he was committed to the flames, who passed, who executed the sentence, we have before us a problem difficult but interesting. Not only in course of time did the solid tragic fact attract to itself some floating waifs of legend and miracle, but even our best witnesses have not been so careful of their words as doubtless they would have been had they known that they were writing for an ignorant nineteenth century. We must collate their testimonies, mark what they say, also what they do not say. So doing we shall be drawn into noticing another story about a man and a woman who were immured (whatever “immured” may mean), and this story also deserves being brought to light, for it is very curious.
That the council was held is quite certain. The scene and time we can fix exactly. The scene was Oxford, or, to be more particular, the conventual church of Osney 1 . The day is variously described, the day on which one reads in the gospel, “I am the good Shepherd,” the day on which one sings in the introit, “The earth is full of the mercy of the Lord”; but all descriptions come to this, it was the 17th of April, and the Second Sunday after Easter, in the year 1222. The canons which the council published we have 2 . Naturally enough, being general ordinances, they say nothing of the deacon; but there are two of them which claim brief attention.
It was ordained that no beneficed clerk, or clerk in holy orders, should take any part whatever in the judicial shedding of blood 1 . This, even if it stood by itself, would assure us that no sentence of death was pronounced by the council. It may be that this canon was habitually disobeyed, or obeyed only according to its very letter. At this time, and for many years afterwards, the regular judges in our King’s Court (to say nothing of abbots and even bishops sent out as justices in eyre) were for the more part ecclesiastics, and the judicial bench was often a step to the episcopal throne. But this seems to have been a scandal to churchmen of the straiter sort, and it would be quite one thing for this or that ordained clerk to hold pleas of the Crown, leaving to some lay associate the actual uttering of the fatal suspendatur , quite another for an ecclesiastical council to break while in the very act of publishing a law for the church 2 .
Also the council had something to say about the mingling of Jews with Christians, something which suggests, what indeed seems the truth, that at this time the Jews in England, despite the exactions of their royal protector, and despite occasional outbursts of popular fury, were a prosperous thriving race. Jews are not to have Christian servants, it being contrary to reason that the sons of the free woman should serve the sons of the bond 1 . Again, there being unfortunately no sufficiently visible distinction between Jews and Christians, there have been mixed marriages or less permanent unions; for the better prevention whereof, it is ordained, that every Jew shall wear on the front of his dress tablets or patches of cloth four inches long by two inches wide, of some colour other than that of the rest of his garment 2 . We might guess that the council was moved to this decree by the then recent and shameful crime of the apostate deacon. But there is no need for any such supposition, for in this and in most of its ordinances the Oxford Council was but endorsing and re-enforcing the acts of a still more august assembly, the Fourth Lateran Council held by Pope Innocent the Third in the year 1215.
The Lateran Council had prohibited the clergy from taking part in judgment of blood 3 , also it had ordained that Jews and Saracens should wear some distinctive garb 4 , lest under cover of a mistake there should be an unholy union of those whom God had put asunder. But this was but bye-work; the suppression of flagrant heresy had been the main matter in hand. Of heresy England indeed had known little, almost nothing. It is true that in 1166 some heretics, Publicani or the like, had been condemned by an ecclesiastical council (this council also was held at Oxford), had been handed over to the secular power, and then by the king’s command whipt, branded, and exiled; some of them, it seems, perished very miserably of cold and hunger 1 . But even these were foreigners, Germans, and the writer who tells us most about them boasts that though Britain was disgraced by the birth of Pelagius, England, since it had become England, had been unpolluted by false doctrine. He boasts also, and apparently with truth, that well-timed severity had been successful 2 . Only one other case is recorded, and of this we know next to nothing. In 1210 an Albigensian was burnt in London; we are told just this and no more 3 . It must not surprise us therefore if English law had no wellsettled procedure for cases of heresy; there had been no heretics. But of course it was otherwise elsewhere. When the Lateran Council met the Albigensian war had been raging for some years, and it had been a serious question whether a considerable tract of France would not be permanently lost to the Catholic Church. So one great object of the council was to impress upon all princes and potentates the sacred duty of extirpating heretics. A definite method of dealing with them was ordained 4 . They were to be condemned by the ecclesiastical powers in the presence of the secular powers or their bailiffs ( saecularibus potestatibus praesentibus aut eorum baillivis ) and delivered to due punishment, clerks being first deprived of their orders. Also it was decreed that if the temporal lord, when required and admonished by the church, neglected to purge his land of heresy, he should be excommunicated by the metropolitan and the other bishops of the province. If then for the space of a year he should still be contumacious, that was to be signified to the Pope, who would thereupon discharge his subjects from their allegiance. It was from taking part in such legislation as this that the English bishops had but lately returned when they met at Oxford. The council at Oxford, having recited and republished the Lateran canons, can have had little doubt as to how it ought to deal with a deacon who had turned Jew.
It will hardly be a digression, and indeed may lead us to the right point of view, if we notice that this same Lateran Council made (or if the word made be objectionable, then let us say caused ) a great change in English criminal law. It abolished the ordeal, or rather it made the ordeal impossible by forbidding the clergy to take part in the ceremony 1 ; no more remained for the council of the English king (the king himself was yet a boy) than to find some substitute for a procedure which was no longer practicable 2 . We may respect the motives which urged Blackstone to protest that no change in English law could be made by a body of prelates assembled at Rome 3 ; but we shall scarcely understand the history of the time unless we understand that the exclusive power of the church to rule things spiritual,—and the ordeal, the judgment of God, was a thing spiritual,—was unquestioned. It may be difficult now to grasp the old theory of Church and State, the theory of the two swords; a distinction between things spiritual and things temporal may seem to us vain and impossible; still we must reverence facts, and the theories of a time are among its most important facts. Our own doctrine of sovereignty, our modern definitions of law, are out of place if we apply them to the middle ages. They will bring us but to some such unprofitable conclusion as that there were no sovereigns, no political communities, no law, nothing but “dormant anarchy.”
Though it may delay us from our story, there is yet one question which should be asked and answered before we can fully comprehend the evidence that is to come before us. Who at Oxford in the year 1222 was the natural and proper representative of temporal power, who was the manus laicalis ? Doubtless the sheriff of Oxfordshire. Now it happened that the sheriff of Oxfordshire was one of the most notable men in England; more than king in England (“plusquam rex in Anglia”) some said 1 . He was Fawkes of Breauté, just at the full height of his power, a man not unlikely to act in a high-handed imperious way without much regard for forms and precedents, a man who very likely was already plotting revolt and civil war, a man somewhat given to disseising and otherwise pillaging the clergy, and therefore, it may be, not unwilling to do the church a service if that service would cost him nothing. He was soon to find that the church could be a terrible enemy, that of all his foes Langton was the most resolute.
These things premised, we may call the witnesses, and first of all Bracton, not that his testimony is the earliest but because it is perhaps the best and certainly the best known. A lawyer writing for lawyers, he would be likely to see the case in its legal bearings and to speak of it carefully. We cannot assign any very precise date to his evidence, and he may well have given it between thirty and forty years after the event. Still it is from round about the year 1222, the year of the Oxford Council, that he collected the great mass of his case law. That was the great time when there were great judges whose judgments were worthy of record. Of their successors, his own contemporaries, he seems for some reason or another to have thought but meanly. It was to the examination of old judgments, as he himself expressly says, that he had given his mind 1 . He is speaking then, if not of his own time, yet of a time that he has studied. He has been telling us that a clerk convicted of crime is to be degraded by the Court Christian 2 . He is to undergo no further punishment, degradation is punishment enough, “unless indeed he is convicted of apostasy, for then he is to be first degraded and then burnt by the lay power ( per manum laicalem ), as happened at the Oxford Council holden by Stephen Archbishop of Canterbury of happy memory, touching a deacon who apostatised for a Jewess, and who, when he had been degraded by the bishop, was at once ( statim ) delivered to the fire by the lay power.” Two things we remark. In the first place there is no talk of any sentence of death being pronounced by any court, temporal or spiritual; the miscreant was burnt at once, on the spot, so soon as he has been degraded: there is no talk even of any royal writ. Secondly, the case is good law; it is a precedent to be followed when occasion shall require.
But Bracton does not stand alone. If he did, we should perhaps have some cause for doubting his testimony. It was an age very fertile of chroniclers and annalists, and there are some dozen books in which we may hope to find a trustworthy and early, if not quite contemporary, account of an event which took place in 1222, an event which, though neither very marvellous nor of first-rate importance, was still picturesque and unprecedented. Some of these books are silent. The silence most to be regretted is that of Roger of Wendover. We would gladly have had an account from one so careful and so well informed. But he is taken up with more momentous matters, the loss of Damietta and a serious riot in London, not suppressed without the aid of Fawkes and his soldiery. Beyond this he tells of nothing but terrible tempests. And, indeed, the weather this year was abominably bad; about this all our authorities are agreed. It is the only fact that the annalist of Margan in Glamorgan found worthy of remark. The annals of Burton, of Worcester, and of Bermondsey do not even mention the council; those of Winchester and Tewkesbury tell us that the council was held, but tell us no more. The annals of Osney, to which we look hopefully, say merely that the council was held, and held at Osney. But all this silence cannot, I believe, be reckoned as negative evidence. The monastic annalist, working with no definite plan, with no consistent measure for the greatness of events, jotted down what might interest his house or had struck his fancy, making sometimes what seems to us a very capricious selection of facts. He could pass by the fate of the perverted deacon, but he could also pass by very many things which, tried by any test, were much better worth recording.
But from the Cistercian house of Waverley in Surrey we have this 1 :—“In this council an apostate deacon who had married ( duxerat ) a Jewess was degraded and afterwards burnt. Also a countryman ( rusticus ) who had crucified himself was immured for ever.” A somewhat longer version comes from Dunstable 2 , and it seems to be the version of one who likely enough was an eye-witness, Prior Richard Morins, who was describing events as they happened year by year 3 . He had certainly been at the Lateran Council 4 , and I suppose that it was his duty to be at the Oxford Council also. He must have been a careful man of business, for these Dunstable Annals are a long detailed record of litigation and legal transactions described in technical legal language. What he says is this:—“In this council there was condemned to the flames, after his degradation, a deacon who for the love of a Jewess had been circumcised; and he was burnt with fire outside the town by the king’s bailiffs who were present on the spot ( ibidem praesentes ). There also another deacon was degraded for theft. Also a woman who gave herself out to be Saint Mary and a youth who had given himself out to be Christ and had pierced his own hands, side and feet, were immured at Banbury.” The prior certainly says that the pervert was condemned to the flames in (not by ) the council. Could we now draw his attention to these words he would, I think, say (after a grumble about hypercriticism) that of course the council did not in so many words pronounce a sentence of death, but would add that it did what was for practical purposes the same thing, it convicted the man of apostasy and handed him over to the secular power; he might add, too, that no one for whom he wrote would have imagined that a judicium sanguinis was uttered by this assembly of ecclesiastics. Of any temporal court he says nothing, and nothing of any royal writ, but the king’s bailiffs were present on the spot, as required by the Lateran Council, and they burned the convict.
The account which comes to us from the Abbey of Coggeshall in Essex is yet fuller 1 . It is contained in a very valuable chronicle, and in all probability was written within some five years after the event. Archbishop Stephen held a council at Oxford, and there “degraded an apostate deacon, who for the love of a Jewess had circumcised himself. When he had been degraded he was burnt by the servants of the lord Fawkes. And there was brought thither into the council an unbelieving youth along with two women, whom the archdeacon of the district accused of the most criminal unbelief, namely that the youth would not enter a church nor be present at the blessed sacraments, nor obey the injunctions of the Catholic Father, but had suffered himself to be crucified, and still bearing in his body the marks of the wounds had been pleased to have himself called Jesus by the aforesaid women. And one of the women, an old woman, was accused of having long been given to incantations and having by her magic arts brought the aforesaid youth to this height of madness. So both being convicted of this gross crime, were condemned to be imprisoned between two walls until they died ( jussi sunt inter duos muros incarcerari quousque deficerent ). But the other woman, who was the youth’s sister, was let go free, for she had revealed the impious deed.” We notice the appearance of Fawkes of Breauté, or rather of his underlings, remembering however that the ministri domini Falconis would also be the ballivi domini Regis mentioned by the Prior of Dunstable. We notice also that here there is no sentence of death, no royal writ.
Of about equal value and of about even date must be the account which, according to Dr Stubbs, comes from some nameless canon of Barnwell, the account which is preserved in the Memoriale of Walter of Coventry 1 . “A priest and a deacon were there degraded inside the church before the council by the lord of Canterbury, the priest for homicide, the deacon for sacrilege and theft. But another deacon had sinned enormously; he had renounced the Christian faith; blaspheming and apostatising, he had caused himself to be circumcised in imitation of the Jewish rite. He was degraded by the lord of Canterbury outside the church and before the people. Relinquished by the clergy, he was as a layman and captured apostate delivered over to be condemned by the judgment of the lay court, and being at once ( statim ) delivered to the flames he died a miserable death. In degrading the priest and the deacons, when the lord of Canterbury had stripped off the chasuble, or stole, or whatever it might be, by lifting it with the end of his pastoral staff, he made use of these words, ‘We deprive you of authority’ ( Exautoramus te ). There was brought into the council a layman who had allowed himself to be crucified, and the scarred traces of the wounds might be seen in his hands and feet and his pierced side and his head. There was brought also a woman who, rejecting her own name, had caused herself to be called Mary Mother of Christ. She had given out that she could celebrate mass, and this was manifested by some proofs which were found, for she had made a chalice and patten of wax for the purpose. On these two the council inflicted condign punishment, that enclosed within stone walls ( muris lapideis inclusi ) they should there end life.” One peculiarity of this life-like account is that it says nothing about the Jewess. But we have also to note the mention of the lay court, for of this we have hitherto heard nothing. The deacon was delivered over to be condemned by its judgment. These are the important words: “velut laicus et apostata captus traditur judicio curiae laicalis condemnandus.” Nevertheless we do not read that he was in fact condemned by or brought before any secular tribunal; on the contrary, he was forthwith committed to the flames.
I believe that I have now stated what may be called the first-rate evidence, and that it is far more than sufficient to establish the chief facts. It will not escape the reader’s notice that all these early accounts of the matter are very sober, strikingly sober when the nature of the story and its subsequent fate are considered. We come to witnesses of a somewhat less trustworthy kind. And first there is Matthew Paris, who died in 1259. Roger of Wendover, as already said, does not even mention the Oxford Council. When Paris was absorbing Wendover’s work into his own Chronica Majora , he inserted a notice of the Council and of the deacon’s death. A more elaborate tale he set forth in his Historia Minor or Historia Anglorum , and to this we will turn first since there he cites his authority, and this authority an eye-witness, one Master John of Basingstoke, Archdeacon of London 1 . Of any such Archdeacon of London nothing is said elsewhere, but a John of Basingstoke was Archdeacon of Leicester 2 . Paris seemingly knew him well, and doubtless he is the person meant. He was a friend of Simon de Montfort and died in 1252. Paris, on the occasion of his death, speaks of him as a very learned man 3 . He had been to Greece and had learnt Greek, had learnt it from a young Greek girl of whose wonderful accomplishments he had strange things to tell; she could foresee eclipses, pestilences and even earthquakes, and had taught the archdeacon all that he knew. Perhaps while seated at her feet the archdeacon not only learnt but forgot; perhaps as a traveller he acquired a habit of telling good stories. At any rate the story that he told to Paris was this:—“An English deacon loved a Jewess with unlawful love, and ardently desired her embraces, ‘I will do what you ask’ said she ‘if you will turn apostate, be circumcised and hold fast the Jewish faith.’ When he had done what she bade him he gained her unlawful love. But this could not long be concealed, and was reported to Stephen of Canterbury. Before him the deacon was accused; the evidence was consistent and weighty; he was convicted and then confessed all these matters, and that he had taken open part in a sacrifice which the Jews made of a crucified boy. And when it was seen that the deacon was circumcised, and that no argument would bring him to his senses, he solemnly apostatised before the archbishop and the assembled prelates in this manner:—a cross with the Crucified was brought before him and he defiled the cross 1 , saying, ‘I renounce the new-fangled law and the comments of Jesus the false prophet,’ and he reviled and slandered Mary the mother of Jesus, and made a charge against her not to be repeated. Thereupon the archbishop, weeping bitterly at hearing such blasphemies, deprived him of his orders. And when he had been cast out of the church, Fawkes, who was ever swift to shed blood, at once carried him off and swore, ‘By the throat of God! I will cut the throat that uttered such words,’ and dragged him away to a secret spot and cut off his head. The poor wretch was born at Coventry. But the Jewess managed to escape, which grieved Fawkes, who said, ‘I am sorry that this fellow goes to hell alone.’”
Eye-witness and archdeacon though Master John of Basingstoke may have been, we cannot believe all that he said. In the first place, he will have the deacon’s head cut off, while all our best witnesses agree about the burning. In the second place, either the charge of crucifying a boy is just the mere “common form” charge against the Jews (the Jews were always crucifying boys, as every one knew, and were now and again slaughtered for it), or else the archdeacon has muddled up the history of the deacon with that of the labourer who was immured for crucifying himself. Nor does it seem likely that the assembled prelates gave the apostate an opportunity for manifesting his change of faith in a fashion at once very solemn and very gross. But what is said of Fawkes of Breauté does deserve consideration. Fawkes when this story was told was long since banished and dead, and it may well be that he had become a bugbear, a mythical monster to whom, under Satan, mischief of all sorts might properly be ascribed. But what mischief, what evil doing had there been? Why should a perfectly lawful execution be converted into a hurried and secret act of this cursing and bloodthirsty enemy of mankind, this Fawkes of Breauté, “ever swift to shed blood,” with imprecations about the throat of God? Certainly the impression left on the archdeacon’s mind seems to have been that of a deed which, though perhaps lawful, was indecently hasty.
What Paris says in his Chronica Majora 1 is briefer, but it has a new marvel for us, and shows that we are already on treacherous ground. He introduces us to a hermaphrodite. A man has been apprehended who has in his hands, feet and side the five wounds of the crucifixion; he and an accomplice, a person utriusque sexus, scilicet, Ermofroditus , confess their offences and are punished by the judgment of the Church. “Likewise also a certain apostate, who being Christian had turned Jew, a deacon, he too was judicially punished ( judicialiter punitus ); and him Fawkes at once snatched away and caused to be hanged ( quem Falco statim arreptum suspendi fecit ).” The poor deacon who has been already burnt and beheaded is now hanged; this we may pass by, nor will we discuss the question how the old woman who called herself St Mary became a hermaphrodite, but we again notice that the slaying of the apostate is due to Fawkes, and seems a lawless or at least irregular act. Doubtless the Abbey in which Paris wrote was just the place in which stories discreditable to Fawkes would be readily believed and invented, and Paris himself seems to have cherished a bitter hatred for “the great enemy and despoiler of St Alban’s 2 .” But again we have to ask, whether and why there was anything reprehensible in putting to death this degraded clerk, and, if not, why that evil principle, Fawkes of Breauté, should be invoked to account for what was perfectly natural and right?
Another ornate version is given by Thomas Wykes, who, it is believed, wrote near the end of the thirteenth century and in the monastery of Osney, the scene of the council 1 . “In this council there was presented a deacon who, some time ago, had for the love of a Jewess rejected Christianity, apostatised, and been circumcised according to the Jewish rite. Being convicted of this he was first degraded, then condemned by a secular judgment ( saeculari judicio condemnatus ) and burnt by fire. It was said that this same apostate, in contempt of the Redeemer and of the Catholic faith, had even dared to throw away in an ignoble place ( in loco ignobili ) the Lord’s body which had been stolen from a church. A Jew revealed this, and in corroboration of the Christian faith the Lord’s body was found unpolluted, uncorrupted, in a fair vessel, prepared for it, as one may well believe, by angel hands. And there was brought into the same council a country fellow ( rusticus ) who had come to such a pitch of madness that, to the despite of the Crucified One, he had crucified himself, asserting that he was the Son of God and the Redeemer of the world. He was immured by the judgment of the Council, and shut up in prison he ended his life, fed on water and hard bread.” This is, I think, the first and only account which states that the deacon was condemned by a lay court, and I believe that it comes from too late a time to be trusted; the legend about the consecrated wafer shows that the story was already being improved by transmission.
There is not much more to be said. Later writers repeat with more or less accuracy what we have already read. Just one new ornament is added, and a pretty ornament too. Having learnt how the rusticus (such is the stereotyped description of the miserable man, and it well may mean that he was a villein) crucified himself, and how the deacon assisted at the crucifixion of a Christian boy, we may read in the pages of Holinshed and elsewhere how the council crucified a hermaphrodite, a version of the tale which good Protestants must think very proper and probable 1 .
Such being the evidence, were I to venture a guess as to what really happened it would be this:—No one in England doubted for one moment that this deacon ought to be burnt, except, it may be, the deacon himself and his fellow Jews. It is not necessary here to assume that had his offence been mere heresy, his fate would have been the same, though I believe that of this there can be little doubt. But his crime was enormous, he had piled sin on sin. A deacon of the Christian Church he had turned Jew, turned Jew for love and for the love of a Jewess. Excommunication would have awaited the king, interdict the nation, if mere heresy had gone unpunished, and England had lately had some sad experience of interdicts. But in such a case as this no ecclesiastical threat would be needed; every one would agree that this self-made Jew must be burnt, that his death was demanded by all laws human and divine. It was the duty of the council to degrade him, to demand that he should be punished, to see that he was punished; but the council could not pronounce upon him any sentence beyond that of degradation. He was degraded then, not inside the church like the manslayer and the thief, but outside the church, before the people, and he was then handed over to the sheriff or his bailiffs. He was at once burnt; most of our witnesses bring out this fact that he was burnt at once and without any further formality. Possibly it was intended that there should be some further formality, some sentence pronounced by a lay tribunal; one of our best witnesses, the canon of Barnwell, seems to say as much, and the story about the indecorous haste of Fawkes points the same way. Possibly, then, Fawkes or his subordinates did act with unexpected promptitude; Fawkes, unless he is maligned, was not much given to waiting for orders. One writer at the end of the century says that the man was condemned by the lay court. I take this to prove that by that time, when the relation between Church and State had undergone some change, it was thought that there ought to be, assumed that there must have been some sentence by a lay tribunal, at least some writ from the king. But whatever was expected and omitted was but a bare formality, the registration by the king’s court of a foregone conclusion. By an informality the deacon gained a speedier release from a painful world. Any notion that he would have been saved had he been brought before the king’s justices we may dismiss as idle. Those justices, almost to a man, would have been ecclesiastics, and among laymen he would assuredly have fared no better. There was no statute, there may perhaps have been no precedent to the point; such a case is not foreseen in advance, and when it happens it is of course unprecedented; but that a deacon who turns Jew for the love of a Jewess shall be burnt, needed no proof whatever. Bracton, as I think, knew that there had been no judgment of any lay court (“qui cum esset per episcopum degradatus, statim fuit igni traditus per manum laicalem”), and he fully approved of what had been done and so far generalized the case as to state for law that an apostate clerk (a layman would have been in no better plight, but Bracton, as it happens, is discussing clerical privileges) is to be delivered to the lay power and burnt.
The fate of the man and woman who were immured, fanatics, lunatics, impostors, enthusiasts, or whatever they were, is really quite as remarkable as the fate of the deacon. The notion that for breach of monastic vows persons were sometimes bricked up in walls was once current and may still be entertained by some who take their Marmion too seriously. Scott indeed sanctioned it not only by verse but by a solemn prose note. Very possibly the main foundation of this notion is some version of the story that has here been before us, for I believe that this is almost all that is to be found about immuration in any English records or chronicles. We see plainly (and this might, I take it, be fully proved from foreign books) that our witnesses do not mean that two persons were suffocated in brick or stone. They were imprisoned for life and fed on bread and water. Doubtless the imprisonment was very close and strait, otherwise we should not have this same immuratus from writer after writer when incarceratus and imprisonatus lay ready to hand, and one writer says that they were enclosed between two walls, not between four; but still they were fed, though water and hard bread were their fare. But what most deserves attention is that they were sentenced to imprisonment, life-long imprisonment, by an ecclesiastical council, and that the sentence was carried out. What is more, they were lay folk. The sentence here was no judicium sanguinis , and by pronouncing it the council broke no canon of the Church. But what of the common law? At common law could the ecclesiastical court send a man to prison? This seems to me a vain question; every question about what was “the common law” is vain that does not specify some date. But suppose that the year 1222 be mentioned, then apparently our answer must be this:—In that year two persons were sent to imprisonment for life by the judgment of an ecclesiastical council, and, in the absence of evidence to the contrary, the natural presumption is that they were imprisoned lawfully.
The subject of this essay is an episode in the history of English law, which has hardly received all the attention that it deserves. It is in itself curious and interesting, and a full understanding of it might lead to the understanding of some other passages in our legal history, which are not very intelligible. It concerns the protection which our law of the middle ages cast over seisin, and more especially the protection of seisin against proprietary right.
Now a doctrine of possession and a system of possessory remedies seem to find their most critical test in the question—How, and in what circumstances, is possession protected against ownership? It may well be, as some think, that to protect possession against ownership has not been the object of those by whom possessory remedies have been instituted and developed. In protecting possession they may have had chiefly in their view possession by those who have right; they may have wished to facilitate proof in favour of owners; and it may have been but an accident in their schemes, though an inevitable accident, that they were forced to maintain the sanctity of possession even against ownership. But though this may be so, still it is hard to determine whether, or in what sense, a remedy is “possessory,” until we have seen it conceded or denied in cases in which it would act as a limit to proprietary rights. When the contest is merely between a possessor and one who claims no right in the thing, then it is often possible to dispose of the question by saying that “possession is evidence of ownership,” or again, to contend that possession engenders title of a sort—title good against all who have no better, because older, title. When however we see the possessor protected against one who admittedly is the owner, or against one who is ready and willing to prove his ownership, then we know for certain that possession itself is protected by law, and protected for its own sake. By this phrase, “for its own sake,” I mean not to stir any question about the ultimate reason for protecting possession, but only to point out that when we see an owner succumbing to a possessor, forced to deliver up what is his own, or forced to pay damages for having touched what is his own, then there can be no doubt that the law really does protect possession, and does not merely regard it as affording evidence of title, or as giving a title good against those who have no better. Thus it becomes an important inquiry as regards any system of law, whether and how the rights of owners are limited by the rights of possessors. To such an inquiry let us subject our medieval law.
Looking then at the state of affairs at the end of the middle ages,—the accession of Henry VII will be a good moment to fix, and we can turn to Littleton’s Tenures as to a very recent book,—we may be inclined to think for one moment that the common law (as distinct from statute law of no great antiquity) never protects either the old-fashioned seisin or the more modern “possession” against ownership, against the entry and even the forcible entry of “him that right hath.” The statutes to which reference has just been made are of course the Statutes of Forcible Entry, of which the earliest is no older than 1381 1 , and of which for the present we will take no further notice. It has been the general opinion that nothing but those statutes stood in the way of a forcible entry on the part of one who had a right to enter. But then stress must be laid on the phrase “a right to enter”: it at once reminds us that a person might well be owner of land and as such be entitled to be seised and possessed of it, and yet might have no right whatever to enter upon it. The methods whereby this state of things might be brought about were those which we are wont to group under the two heads of Descent Cast and Discontinuance. To put the matter very briefly:—If a disseisor (or the alienee of a disseisor) died seised and the ousted owner had not by continual claim kept alive his right to enter, then he could not enter upon the heir of him who had thus died seised; “the descent cast had tolled his entry,” his entry was no longer congeable . Then, again, if an abbot seised in right of his monastery, a husband seised in right of his wife, or a tenant in tail made a feoffment in fee simple, this was a discontinuance, and the successor, wife, issue, might not enter on the feoffee. In these scattered cases, which we need not at this moment define more accurately, seisin was protected against ownership; and very effectually protected; the true owner, the person who of all the world had the best right to be possessing the land, might not set foot upon it.
We can hardly think of these rules otherwise than as rules which exist for the protection of seisin,—not indeed of every seisin, or even of every seisin that has colour of title, but of seisin acquired under certain particular titles. But the scope of these rules is so narrow and (as it must seem to us) so capriciously defined, that we have great difficulty in conceiving them as forming part of a rational coherent theory of possession; we are tempted to pronounce them quite unintelligible, and therefore presumably “feudal.” The explanation which I shall here hazard is that they are the last relics, somewhat casually preserved, of a coherent theory of possession, of an extremely rigorous prohibition of self-help, of a system of possessory remedies which was once a simple and effective system, but which fell to pieces in the course of the fourteenth century. The main outline of this historical explanation is suggested by a passage in Coke upon Littleton 1 ; but to fill up some part of that outline seems a reasonable purpose; for really the treatment of seisin in our oldest common law must be understood if ever we are to use the vast store of valuable knowledge that lies buried in the Plea Rolls and the Year Books. If we were free to write history out of our own heads, it would be a plausible doctrine that gradually and steadily the right of a dispossessed owner to right himself, to take what is his own, is curtailed by law; that in the law of the later middle ages, the law of Littleton’s time, we may see the first tentative and clumsy advances towards a protection of possession against ownership. But such a doctrine would be quite untrue; the sphere allowed to self-help by the law of the twelfth century is almost infinitely narrower than that allowed by the common law of the fifteenth. This seems to me an important fact, and I shall here attempt to collect some proofs of it.
We have every reason to believe that our possessory actions, the three assizes of novel disseisin, mort d’ancestor and darrein presentment, were not developed out of ancient folk-law but were of positive institution, that they were established by ordinance early in the reign of Henry the Second. Their very name “assizes,” the express testimony of Glanvill 1 and Bracton 2 , to say nothing of later tradition 3 , the equally clear testimony of the Norman books as to the origin of the Norman assizes 4 , all point the same way, and it is even possible that we have “the text of the law on which the assize of mort d’ancestor was founded 5 .” We may add to this that a definitely possessory remedy does not seem native to the law of our race; that when it appears in England or in Germany or in France, it bears witness to the influence of alien jurisprudence, of Roman law working either directly, or through the medium of the Canon Law. At the same time we must not think of the Norman or the English assizes as copies of the interdicts or of the actio spolii. It would be easy for us to exaggerate the amount of Roman law that can have been known in the court of Henry the Second. Much more had become known by Bracton’s time; but Bracton had great difficulty in finding the assizes in the Roman books 1 . They were not pedantries, but lively, effective institutions, well suited to the Normandy and the England of Henry’s day, and they struck deep root and flourished. A century after Henry’s death the Novel Disseisin was still “festinum remedium,” the most summary proceeding known to the Chancery 2 .
If we ask for the motive of this new institution, we ought perhaps to distinguish between motives which are and those which are not avowed. Henry’s main object may have been to strike a heavy blow at feudalism, to starve the feudal courts, to weaken the tie between man and lord, to strengthen the tie between subject and king, to make every possessor feel that he owed the blessedness of possession to a royal ordinance, to the action of a royal court. Also it is not to be disguised that he made money out of his assizes 1 . But he could not have succeeded had there not been a strong feeling that a possessory action was a right and good thing, that the peace ought to be maintained, that proof should be easier, that the dilatory processes of the old actions were working injustice. The avowed motive for the new institution was, at least according to Norman tradition, the protection of the weak against the mighty, the poor against the rich; along with this we have the homely thought, that the plough must not be disturbed, that he who sows should also reap 2 . Perhaps at the base of the new remedies there was no one clearly thoughtout principle, but rather several different ideas, which, though for a while blent and harmonious, would in course of time become separate and discordant.
Of all the possessory assizes the Novel Disseisin is by far the most interesting; and since everything depends upon the words of its formula, that formula, the question which the recognitors were summoned to answer, must here be set forth:—
Si B injuste et sine judicio disseisivit A de libero tenemento suo in X post [ultimam transfretationem domini Regis in Normanniam—or other the time of limitation].
Glanvill speaks but very briefly of this assize, and gives us no information as to the precise meaning of the terms used in its formula 1 . Again, Palgrave’s Rotuli Curiae Regis give us but little help. We may indeed see that in Richard’s reign and John’s the new remedy had become very popular; it was doing a great work. But just because it was working well, the records of its working are uninstructive. In case after case there is no pleading at all, and the jurors answer the question put to them with almost monosyllabic brevity—“disseisivit eum”—“non disseisivit eum”; they well understand what is meant and do not pray the aid of the justices. During Henry the Third’s reign special pleas (exceptiones) become not very uncommon, and special verdicts become still commoner. 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. Then from the middle of the thirteenth century we have Bracton’s book with an elaborate doctrine about the scope of the assize.
Before we turn to that account it will be well to remember how summary an action this Novel Disseisin was, how sharp was the contrast between it and other actions 2 . To begin with, “personal service” (to use a modern term) was unnecessary; to attach the defendant’s bailiff was enough; there could be no essoin; there could be no vouching to warranty of any one not named in the writ; the assize could be taken by default; no pleading to issue was necessary; the question for the recognitors was defined in the writ. Lastly, this was the only action in which one could recover both land and damages. It is not, in Bracton’s view, a real action; it is a personal action founded on tort 1 .
Now in order that we may understand the spirit of this assize as administered in Bracton’s day, we had better at once put the extreme case, which is also the simplest case:— A is the true owner, or very tenant in fee simple, of land and is seised of it; he lives on it and cultivates it himself; there comes one B who has no right whatever; he casts A out and keeps him out, by force and arms. When, we must ask, does A cease to be seised and when does B begin to be seised? Doubtless in one sense or for one purpose, A is disseised so soon as he is put off the land; he can at once complain to a court of law that B has disseised him. Indeed to found such a complaint no actual ouster was necessary; had he repulsed B he might still have complained of a disseisin. The assize serves the purpose of an interdict for retaining, as well as that of an interdict for recovering possession; had B but entered with an intent to assume possession this would have been disseisin enough. In many cases the mere troubling of possession is a sufficient disseisin, if the person seised choose to complain of it as such 2 . But even when A has been extruded from the land, B is not at once seised (at least as regards A ), that is to say, he is not protected by the assize (at least as against A ); if within a certain limited time A returns and ejects B , B will have no ground of complaint. Bracton sometimes expresses this principle in a romanesque form, derived from what is now held to be a misinterpretation of a famous sentence in the Digest 1 ; one can retain possession animo solo. The ejected A so soon as he has been de facto ejected has ceased to possess corpore, but he has not ceased to possess animo; he has lost possessio naturalis, he has not lost possessio civilis. When however we come to ask what this really means, we find that the talk about a man retaining seisin animo solo—apart from any objection about the misuse of Roman terms—is somewhat misleading. Really there seems to be a set of hard and fast rules about the matter. A must turn B out within four days; otherwise B will have a seisin protected by the assize. Such is the case if A was actually on the land and was himself cast out. If however he was away from the land when the disseisin took place, then a longer time will be allowed him. In the first place, he will not be disseised until the act of disseisin is brought to his knowledge. In the second place, he will then have a reasonable time within which to come to the land, and after that he will have his four days. The “reasonable” time is in several cases determined by the parallel rules about essoins. Thus the man who is in Gascony or on a pilgrimage to Compostella has forty days, two floods and an ebb, fifteen days and then the four days. Bracton, if I understand him rightly, seems to think that for a man in England fifteen days would always be reasonable, but says that at the present time this rule is not observed. The four days he tells us are allowed a man for the purpose of collecting friends and arms 1 . Fleta 2 and Britton 3 repeat, though not very clearly, this curious doctrine; four days seems still the fixed time within which a person who has himself been cast out of the land may lawfully enter upon and eject his ejector.
Mr Nichols in his fine edition of Britton has supplied a gloss from a Cambridge MS., which there is some reason for attributing to John of Longueville, a justice of Edward the Second’s time 4 . The first words of it are very interesting:—“Where the disseisin is done in the presence of the disseisee, the disseisor must be ejected within five days; because the law of ancient time granted that the disseisee should go one day to the east, the second day to the west, the third day to the south, and the fourth day to the north, to seek succour of his friends all the country round.” This same MS. contains a Bracton as well as a Britton, and in the margin of the Bracton I have found a Latin note, to the following effect:—” A being at London is disseised of his free tenement in York, for his family is ejected; if it be asked within how long a time he may lawfully re-eject his ejector by his own force, I am safe in saying ( dico secure ), within fourteen days, or fifteen; for in five days a messenger may come from York to London to give him notice; then A himself can go thither in other five days, and four days being spent in obtaining the aid of friends, he can re-eject the ejector on the fifth. And so wheresoever he be, by computing the days reasonably necessary for coming and going (the allowance being more or less liberal according to the discretion of the justices) and four days for getting the help of friends, one can decide whether time has run against him or no 1 .” It would seem then that in the opinion of some lawyer of the fourteenth century this rule about the four days was still law. We shall have some difficulty in reconciling this with the testimony of the Year Books; but we know how legal texts are haunted by the ghosts of dead doctrines.
If a somewhat close attention is paid to Bracton’s words, we shall find that a period of four days is mentioned more than once in connexion with the acquisition of seisin; some attention is necessary, because, as it seems to me, he was inclined to speak vaguely of it and to rationalize it away. Thus if A , who has been ejected, die without having purchased a writ, his heir will not have the mort d’ancestor against the ejector, unless A die within four days after the ejectment 2 If he die within the four days then he “dies seised” within the meaning of the writ of mort d’ancestor 3 . Again, a case is put in which I enfeoff you to the intent that you marry my daughter; you marry some one else; I may eject you, but must do so infra triduum vel quartum diem, vel aliquantulum ulterius, sed cum causa . Seemingly this means that I must enter within four days, but that a longer time will be allowed me if there be cause, if e.g. I am not on the spot 1 . Then, again, Bracton considers personal liberty and personal villeinage as the subjects of a sort of possession or seisin. A runaway serf must be captured infra tertium vel quartum diem , otherwise he will be in possessione libertatis , will be statu liber , and the lord will be put to his action 2 . This term of four days must be carefully distinguished from the term of year and day, by dwelling for which in a privileged place a villein may gain the right of liberty. It will take him a year to gain a right to his freedom; but in four days he may get possession, legally protected possession, of it.
A term of four days seems therefore the time during which one who has ousted the owner must de facto hold the land in order that he may have a seisin of it, legally protected against the owner. On the other hand, if one comes to the land by good title, no lapse of time is necessary; the feoffee is seised so soon as the feoffor has delivered seisin. But even within the region of conveyance, we in one case meet with a requirement of a four days’ seisin. If a man is going to enter religion and to endow the religious house with his land, he must deliver seisin per tres dies vel quatuor before he becomes professed 3 . Bracton speaks rather casually about this point, and it would be rash to lay much stress upon what he says; but it deserves remark that we here come across something not unlike the “sessio triduana” of German medieval law.
In certain cases, German law of Bracton’s time required of a man that he should remain in a very actual and obvious possession of land—should steadily sit upon the land—for three days and three nights. In what cases and to produce what legal results this was required, have been controverted questions. At one time it was maintained that the purchaser of land would not have acquired a legally protected possession, until he had held the land for the three days 1 . Recent writers have come to a different opinion. The commonest of all the “common assurances” of Germany was the “Auflassung,” a proceeding closely akin to our own Fines and Recoveries. It took the form of a fictitious action between seller and buyer, in which the land was adjudged to the latter. Having been put into possession, it seems to have been required of him that he should abide on the land three days and three nights. The object however of this requirement, according to modern authorities, was not the acquisition of a legally protected seisin, but rather the preclusion of any claim on the part of the seller or of any one else who was present in court when the Auflassung was made 2 . The origin of this period of three days, it is said, was this:—In old times a Ding (“a judicial session,” I suppose we must say, unless we prefer “a moot”) lasted three days, and the person who acquired land by a judgment was not safe until the Ding was over, until court and suitors were dispersed 3 . So the English suitor must await his adversary four days in court. I know not whether the rule that we find in Bracton that a disseisor may be ejected infra quartum diem has any direct connexion with the German rule; very possibly not, for I believe that in Germany the disseisee would have been allowed at least a year and day for the re-ejectment of his disseisor. But Bracton’s rule has all the appearance of being very ancient. We may perhaps detect its origin in yet older law. In the Lex Salica it makes a great difference to the man who is following the trail of stolen cattle, whether he comes upon them before or after three nights have elapsed. On this depends, what is all important in ancient law, the burden, or rather the benefit of the proof 1 . The idea at the base of this distinction seems to be that after three nights a theft is no longer flagrant; the malefactor will not be caught in the act. It is not impossible that in the Judicia Civitatis Londoniae , the statutes of the London peace-guild, which seemingly belong to the reign of Athelstan, we may find a trace of the same idea. He whose cattle have strayed must announce the loss to his neighbours “infra tres noctes,” otherwise the guild will not make good the loss 2 . So in the law of Bracton’s day a disseisin ceases to be flagrant “infra quartum diem.” A curious confirmation of this rule, and of the fact that before the end of the thirteenth century it was no longer observed, occurs in The Mirror . The writer, who is a conservative and an antiquary, complains that “force holds in disseisins after the third day of peaceable seisin.” This, he says, is an abuse, “forasmuch as he is not worthy of the law’s help who contemns judgement and uses force 1 .”
But be the origin of the rule about the four days what it may, this allowance of a certain time for re-ejectment becomes of considerable importance. That there should be some such allowance, more or less precisely defined, is of course, according to our modern ideas, very natural, especially if there is to be a possessorium so strict that it will protect even a vicious possession against the self-help of the owner. The disseisor who has forcibly turned the owner out, or who has come upon the land during the owner’s absence, cannot be protected directly he is the only person on the land, at all events he cannot be protected against the owner. “A mere trespasser,” says modern authority, “cannot, by the very act of trespass, immediately and without acquiescence, give himself what the law understands by possession against the person whom he ejects, and drive him to produce his title, if he can without delay reinstate himself in possession 2 .” It was held in the case just cited that a trespasser who had been occupying a house for eleven days had not acquired “what the law understands by possession.” A trespasser, it is said, “does not gain possession until there has been something like acquiescence in the physical fact of his occupation on the part of the rightful owner 3 .” The writer who says this thinks also that until there has been something like acquiescence on the part of the rightful owner, the trespasser who is on the land will have no possession legally protected even against outsiders, supervening trespassers. This, for anything that I know, may be the modern law. If so, any one who now wishes to make a theory of possession has an easier task than that which was set before Bracton; for clearly it was law in his day that in the very moment of the ejectment the wrongful ejector gained a seisin protected against persons in general 1 . To account for this out of the theoretic materials ready to his hand was difficult. He had to hold that a man may be seised as regards some, not seised as regards others, and to speak of the disseisor obtaining a naturalis possessio which is protected against those who have no right, before he acquires the civilis possessio which is protected even against those who have right.
However, the main point which needs attention is this, that when once the short period of four days (or it may be a little longer) has elapsed, the disseisor has acquired a seisin which is protected against all men. If ejected even by the rightful owner, he will have the assize and he will be reinstated in his possession. If we are to use the terms of later law, we must say that the disseisee’s entry is already tolled. There is no need for any descent cast, there is no need for any alienation by the disseisor to a third person, there is no need for any such lapse of time as can have (at least to our minds) a prescriptive effect: all that is needful is that the disseisor shall have really obtained possession of the land, and that he has done so is sufficiently manifested if he has remained undisturbed for four days, the disseisee being in the neighbourhood and cognizant of the disseisin.
But what a most rigorous possessorium have we here! It protects even a “vicious” possession. If A , having been cast out by B , lets four days elapse, and then has recourse to self-help, B will bring the assize against him, and it will be useless for A to except that B obtained his possession by force, and by force used against him, A . This extreme rigour is so remarkable and yet has so seldom been remarked, that were not Bracton’s text very clear I should doubt whether I had understood it; but I think that if others will read the whole book on the Novel Disseisin they will come to the conclusion that has here been stated. It is necessary to read the whole book, because Bracton has a way of speaking about time which is very apt to lead modern readers astray. He constantly speaks as though lapse of time were necessary in order to give the disseisor a seisin protected against the true owner:—he must have time on his side, a long time, a long interval, a long and peaceable seisin; and again, the true owner loses the right of self-help when he has ceased to have the mind to possess, when he has dissimulated the injury, when he has acquiesced. The truth that such words as “long” and “short” are very vague words will be forcibly brought home to us when we discover that by “a long time” in this context Bracton means four days.
Distinct from the case of the disseisor is that of the intruder, of one who enters on a vacant possession, on a possession, for example, left vacant by the death of a tenant for life. He may be ejected antequam habuerit longum tempus et pacificum ; but then this longum tempus is to our minds not very long; it is but year and day—at least such is one opinion 1 . Britton remarks that an intruder ejected by the true heir within year and day cannot recover his possession. To this the Cambridge glossator objects, “because it seemeth to me that an intruder should not be in a worse condition than a disseisor would be 2 “; a remark which shows once more that, in his opinion, a disseisor would gain protection in less than a year. Probably the explanation for this seeming favour shown to a disseisor as contrasted with an intruder, is that (albeit a disseisin is a much more serious injury than an intrusion) the person who is really entitled to be in possession is much more likely to get speedy notice of a disseisin than of an intrusion; he may well not know that a right to enter has accrued to him until the intruder has been upon the land for some months.
Bracton of course has no doctrine about discontinuances or descents cast. He has no need of any, because he has a comprehensive doctrine of possession. Even the disseisor himself in a very short time, at least in what seems to us a very short time, will have a seisin protected against the disseisee, and as to alienees of the disseisor, or disseisors of the disseisor, the question whether the original disseisee may eject them will be the question whether he has stood by for four days since the original disseisin.
All this seems to me so plainly written on page after page of Bracton’s book, that I should have said that there could be no doubt about it whatever, were it not that Mr Justice Holmes has written something which seems to contradict it. “English law,” he says, “has always had the good sense to allow title to be pleaded in defence to a possessory action. In the assize of novel of disseisin, which was a true possessory action, the defendant could always rely on his title 1 .” Now in a certain sense, though not as it seems to me a very precise sense, this is true of days much later than Bracton’s, and very possibly the word “always” was not intended to comprehend so remote a time as the thirteenth century; but as some of the many readers of one of the best of books may suppose that this sentence refers to the law of Bracton’s time, I am bound to controvert it, and that too in Bracton’s own words.
In the following passage we have perhaps his fullest statement of the principle that possession is to be protected even against ownership:—
Si autem verus possessor negligens erit post disseisinam, et negligens impetrator, patiens et dissimulans injuriam, impotens omnino, vel de potentia sua desperans, ut praedictum est, ita quod utramque amisit possessionem, naturalem videlicet et civilem, non succurritur ei nisi per assisam. Et si forte assisam contemnat, et possessionem suam (viribus utens non judicio) sibi usurpare praesumat, competit spoliatori propter usurpationem assisa , non quia “injuste” disseisitus sit, sed quia “sine judicio,” et quia per negligentiam veri domini utramque habere incepit possessionem, naturalem videlicet et civilem. Et si verus dominus habere velit regressum, vix aut nunquam audietur, nisi tantum super proprietate; si autem velit ad assisam recurrere, quae ei primo competebat, non poterit: quia assisam demeruit et gratiam juris, et quia frustra legis auxilium invocat qui in legem committit 2 .
Bracton afterwards treats at very great length the possible pleas in bar to the assize. The defendant can only prevent the assize being taken by excepting to some of the words of the writ. The writ inquired “whether B unjustly and without a judgment disseised A of his free tenement in X .” If it was found that B had done this, then A recovered his seisin. Now there may seem to us to be two terms in the writ which might be attacked by the true owner who, after some delay, had ejected his disseisor. He might plead that what he did was not done “unjustly,” or again he might plead that the tenement from which A was ejected was not A ’s free tenement. At either point however the law of Bracton’s day would meet him and defeat him. As to the “unjustly,” Bracton almost explains this word away by saying that every disseisin done “without a judgment” is done “unjustly,” injuste quia sine judicio ; the only force of the word seems this, that a disseisin may be unjust even when there has been a judgment.
Quamvis verus dominus jus habeat in re et “juste” ejiciat, tamen “injuste” ejicit, quia “sine judicio,” et quia propriis viribus reposcit quod per judicem [ corr . judicium] reposcere debuit, ideo per judicium restituat quod sibi sine judicio viribus usurpavit ; nunquam postmodum, nisi vix tantum super proprietate, erit audiendus; et hoc si post tempus ejiciatur quod sufficere possit pro titulo ad hoc quod sine brevi non teneatur tenens respondere; secus autem esset si incontinenti rejiciat disseisitorem 1 .
It would be difficult to say in plainer language than this that the true owner, despite his title, may be compelled by a court of law to yield possession to a disseisor. Then as to the term “freehold” or “free tenement” in the writ. It is competent for the defendant to except that the plaintiff was not seised of a free tenement, and in this form divers objections can be made. It may be asserted that the tenement was held of the defendant in villeinage, it may be asserted that the plaintiff was merely in as bailiff or as termor. Such pleas as these are beside our point. But suppose that B with no sort of title but his own strong arm put A out of the land, and that A let some time go by without doing anything, but then returned and cast B out; A has disseised B of B ’s free tenement; and the Court not heeding, not permitting any talk about ownership, will put B back again.
In hoc autem quod dicitur in brevi “de libero tenemento” competit exceptio tenenti contra quaerentem; sed ad omnes non pertinet exceptio, quia licet “juste” ejicere possunt, tamen non possunt “sine judicio,” licet jus habeant ejiciendi. Jus tamen habet recenter, post tempus autem nequaquam; unde si verus dominus allegaverit quod “juste,” replicari poterit quod “injuste” quia “sine judicio.” Et unde si verus dominus excipiat quod jus habeat et liberum tenementum, et “injuste et sine judicio” ejectus sit, et quod quaerens qui injuste ejecit feodum et liberum tenementum habere non possit, replicare poterit de tempore, quod verus dominus liberum tenementum amisit, per cursum temporis, per patientiam sive negligentiam vel per impotentiam. Patientia enim longa trahitur ad consensum, et negligentia sive dissimulatio obolent injuriam. Et unde disseisitor cum tempus habeat pro se et quasi liberum tenementum, sine brevi et sine judicio disseisiri non potest. Et unde si fuerit sine judicio disseisitus et portaverit assisam, non obstabit ei quod liberum tenementum non habuit quaerens, propter usurpationem sine judicio quantum ad verum dominum, et propter tempus quantum ad disseisitum 1 .”
It must certainly be admitted—or rather let us particularly observe—that Bracton does here and elsewhere account for the law’s protection of the disseisor partly at least by referring to the disseisee’s delay; he has acquiesced, he has dissimulated, he has been negligent—this very probably is an important moment in the history of our possessory actions; but of the owner’s being able to rely on his ownership there is no talk. On the next page we have these conclusive sentences:—
Videamus quae poena teneat eos qui seisinam suam in causa spoliationis [ corr . teneat eos in causa spoliationis qui seisinam suam] post tempus viribus usurpaverint: intrusor vel disseisitor erit restituendus non obstante aliqua exceptione proprietatis . Et si obstare non debeat exceptio proprietatis in persona veri domini, ut si dicat “Juste disseisivi vos, quia tenementum meum est et ego dominus, et tu nullum liberum tenementum habere potes quia non habes ingressionem nisi per intrusionem vel disseisinam,” ita exceptio non valebit ei, quamvis “juste” se ponat in seisinam quantum ad jus, “injuste” tamen hoc facit quia “sine judicio,” ut supra dictum est. Prius enim cognoscendum est de vi quam de ipsa proprietate.
An examination of the records of Bracton’s time will I believe fully bear out his doctrine. But still I think we can see both in them and in Bracton’s own pages a certain growing doubt as to whether “seisin of free tenement” does not imply title, not of course good title, but title good or bad. He occasionally hesitates about saying that the disseisor acquires “liberum tenementum,” and allows him only “quasi liberum tenementum”; and he is inclined to base the requirement of “tempus” on the necessity for some acquiescence, or negligence, or dissimulation on the part of the disseisee. Seemingly it was a further reflection upon and development of this idea of “liberum tenementum,” which set at work that great change which makes the law as it is in Littleton so very different from the law as it is in Bracton. Very probably these words in the writ—“de libero tenemento suo”—were originally intended merely as a denial of the assize to the tenant in villeinage; the obvious, primary opposite to “liberum tenementum” is “villanum tenementum.” To have given every villein a possessory remedy in the king’s own court would have been too daring an infringement of the manorial system even for Henry the Second; to give such a remedy to every possessor of land not burdened with villein services was a sufficiently high-handed invasion of the first principle of feudalism. But in course of time new contrasts are found for the “liberum tenementum.” The assize is denied to the termor; according to Bracton because he holds merely on behalf of his land-lord; tenet nomine alieno; so the termor has no free tenement. Then there slowly creeps in the idea of “an estate of freehold”; “freehold” begins to imply a certain kind of proprietary right. Parallel with this process is the growth of special pleading. In Henry the Third’s reign pleas in bar of the assize are becoming frequent. Even if we regard the assize as still in the very strictest sense a possessory remedy, such pleas have their proper place. The defendant’s view is that he has committed no disseisin, that he has ejected nobody, that he obtained his possession under some judgment, fine, feoffment, covenant; he specially pleads this matter, because he is naturally anxious that delicate questions of law shall not be left in a lump to a dozen laymen. Such pleas go to the question of possession and dispossession, and I have seen no instance of a plea which, admitting the disturbance of a settled possession, justifies that disturbance as an exercise of proprietary right. But still the development of pleading begins (in a manner which should be familiar to us) to turn matter of fact into matter of law.
But not to anticipate what must come before us hereafter as belonging to a later age. Bracton’s doctrine as to the scope of the assize seems in brief this:—it protects possession, untitled possession, even “vicious possession.” As to this last point, he expressly accepts the words of the Institutes which describe the scope of the interdictum unde vi as it was in Justinian’s day. If O , the owner, turns P , the possessor, out, P will recover his possession even though he obtained that possession from O vi vel clam vel precario. A wrongful ejector however does not acquire possession directly he is the one person on the land, or rather he does not at once acquire possession as against the owner whom he has ejected. Such an ejector will at once be protected against mere outsiders, but he will not be protected against the owner until some days, or it may be months, have elapsed. How to account by a rational theory for this state of things is the difficulty. Bracton is unfortunately, but very pardonably, misled into supposing that according to Roman theory a person who has ceased to possess corpore can go on possessing animo solo. This brings him to lay stress upon acquiescence, to speak as though it were the owner’s acquiescence (for four days or so) that gives the ejector a claim to protection, as though this acquiescence were equivalent to “title,” or were itself a sort of title. It is but a short though an important step forwards from this position to say that what the law protects is not possession, but titled possession, to hold that the “seisin of freehold” which the plaintiff in an assize must prove, is seisin acquired by some lawful title, some act in the law, or else seisin fortified by lapse of time.
Dr Heusler, to whose excellent account of Bracton’s theory of possession 1 I owe whatever is good in this paper, says that the assize of novel disseisin gradually becomes a sort of Publiciana, and that in Britton’s book the process is complete, “die Besitzklage ist eine förmliche Publiciana.” We do not, as it seems to me, find much change in the actual rules of law as we pass from Bracton to Britton; we still hear, though somewhat indistinctly, of the four days; but there is a change of theory. In great part this is just a change from clear thought to muddled thought. The grip of possession which a few years ago seemed so assured has been relaxed. By his definition Britton goes so far as to make “property” an essential element of possession:—“possessioun proprement est seisine et tenir de acune chose par cors et par volonté oveke la propreté 2 .” No comment on this is possible, except that the writer was too stupid to understand Bracton 3 . Still we can make out that “title” has now become essential to “free tenement.” The plaintiff in the assize must have had “title de fraunc tenement.” This he may have got by inheritance, by feoffment or the like, or again by peaceable seisin after a vicious entry 1 . The law therefore no longer endeavours to protect possession against ownership; but it will protect, even against ownership, something that stands as it were midway between possession and ownership, some tertium quid , that can only be described as “title de fraunc tenement.” It is attempting to steer a very difficult course. Of its subsequent adventures hereafter 2 .
By a previous paper I have tried to draw attention to a great and very remarkable change which came over our law in the course of the later middle ages. Does the law protect possession against property? If we ask this question in Bracton’s day, the answer must be: Yes, it protects possession, untitled and even vicious possession; if O , the owner, has been ousted by P , he must reeject P at once or not at all; should he do so after a brief delay, then P will bring the Novel Disseisin against him and will be put back into possession. But if we ask this question in the days of Littleton, the answer must be: No, the common law does not protect possession against ownership, except in those comparatively rare cases in which there has been a descent cast or a discontinuance, one of those acts in the law (their number is very small) which have the effect of tolling an entry. In the present paper I propose to collect some cases which illustrate this change, and then to say a little about its causes.
The fourteenth century produced no great textwriter, and we have therefore to rely upon the Year Books. It may be well therefore to observe that the Year Books are for this or any similar purpose very unsatisfactory material, because they are chiefly concerned with points of pleading, and by the middle of the fourteenth century pleadings had become very unreal things. Often the whole object of the defendant’s pleader is delay, and the elaborate story that he tells has in all probability but little connexion with fact; he is just trying to puzzle the court and his adversary, and so no wonder if he puzzles us. A good selection from the Plea Rolls would be much better material; because at least occasionally we should find in it some real facts, some cases in which the assize was taken, in which special verdicts were returned and judgments given upon those verdicts. Even in the fourteenth, even in the fifteenth century, some real justice was done, but as it is we can hardly see the justice for the chicane.
It will be remembered that the Novel Disseisin lies if B unjustly and without a judgment has disseised A of his free tenement. The plaintiff therefore must have been “seisitus de libero tenemento.” What does this imply? This is the question which successive generations have to answer. We have heard Bracton’s answer, and Britton’s. The latter requires that the plaintiff shall have had “title de fraunc tenement,” but peaceable seisin for a long time after a vicious entry is enough to give “title de fraunc tenement 1 ,” that is to say the disseisor himself may acquire a possession protected against the disseisee. In the following notes of cases we may, I think, see this requirement of “title” growing ever more and more stringent: the assize is gradually denied to any one who has himself been party to a disseisin, then to the alienee of a disseisor, then to the alienee of the alienee of a disseisor, until at last the cases in which the true owner is debarred from entering are quite few and very anomalous. All the while the theory, so far as there is one, remains this, that one who is “in by title” (as contrasted with one who is “in by tort”) ought not to be ejected without process of law; but as to what “title” is, we get no clear statement.
1292. (Y. B. 20 21 Edw. I, p. 221.) M is tenant for years, A tenant in fee; M enfeoffs X ; A suffers X to remain in possession for a quarter of a year and then turns him out, the term not having yet expired; X brings the assize against A and succeeds. Otherwise would it have been if A had ejected X at once; as it is, A has suffered X to continue his seisin “e entant granta le franc tenement estre le seu.”
1292. (Y. B. 20 21 Edw. I, p. 267.) M is tenant for years, A tenant in fee; M dies during the term; his wife N remains in possession for a quarter of a year, and then enfeoffs X , who remains in possession for a quarter of a year and is then ejected by A ; X recovers seisin against A in an assize. It is said of A that “par sa suffraunce demeyne si acrut franc tenement a le feffe.” Counsel for A says that if a termor alien in fee, yet even if the feoffee continue his estate for half a year, he may be ejected by the reversioner after the end of the term; “quod non credo verum generaliter,” says the reporter.
1302. (Y. B. 30 31 Edw. I, p. 123.) Land is settled on husband and wife and the heirs of their bodies; they have a son A ; the husband dies; the wife marries X ; the wife dies; X claims curtesy and remains in possession for ten years; A ousts X ; X recovers seisin against A in an assize. Even if X was not entitled to curtesy, still he entered claiming a freehold and ought not to have been ejected after ten years. The case is a good illustration of possessory procedure, for A at once brings a formedon against X . In this he fails; but only because the conditional gift was made before the Statute De donis , and so X really was entitled to curtesy.
1318. (Y. B. II Edw. II, f. 333–4.) It is said by counsel that if tenant for life alienates, and the reversioner does not assert his right for three or four years, the feoffee will be able to recover his seisin against him in an assize.
1327. (1 Ass. f. 2, pl. 13, and Y. B. I Edw. III, f. 17, 22, Trin. pl. 1, 10.) Land is recovered from A the true owner by one X whom A had ejected; such title as X had was derived (without any descent cast) from a grant made by M who had no title, but whom A had suffered to occupy the land; A had stood by while the land had been dealt with by M and persons claiming under M . Counsel urges that it is “inconvenient” to award seisin to one who has no estate; but the judgment shows the true possessory spirit, “quod licet A jus habeat ut videtur . . . tamen de facto suo proprio sine judicio intrare non potuit; ideo X recuperet seisinam suam.” Brooke (Abrid. Entre Congeable , 48) notices that this case, and that last cited, imply a doctrine which in his day was no longer law. He rightly remarks that in cases of this date stress is laid on the fact that the person who has come to the land by a feoffment, will, in case he be ejected without action, lose the benefit of vouching his feoffor to warranty.
1334. (8 Ass. f. 17, pl. 25.) On the death of tenant for life, M who has no right enters and enfeoffs X ; A who is the reversioner enters and is ousted by X ; A recovers from X in an assize. The reporter calls on us to note that X was in by feoffment, but that A entered immediately on the livery of seisin.
1344. (17 Ass. f. 53, pl. 27; Y. B. 18 Edw. III, f. 35, Mich. pl. 16.) M is tenant for life, A has the remainder by fine; M enfeoffs X in fee; M dies; A may not enter on X .
1347. (21 Ass. f. 86, p. 23.) It was said that a man may enter on the feoffee of his disseisor even though the feoffee has continued his estate for ten years. “Tamen quaere,” says the reporter.
1348. (22 Ass. f. 93, pl. 37.) M doweress, A heir; M demises to X for years and dies within the term; X holds on after the term; A may enter on X ; but it is argued that he may not: the decision is based upon the fact that X was “party to the tort.” Counsel for X says that after the death of M “nous continuamus nostre possession ans et jours”: of which phrase notice must be taken hereafter.
1368. (Y. B. 42 Edw. III, f. 12, Pasch. pl. 18.) It seems assumed that a disseisee may enter on the alienee of a disseisor and on the alienee’s alienee, but may not enter on the disseisor’s heir; the question is raised, Why should this be so, as both heir and alienee are in by title?—but no answer is found.
1369. (43 Ass. f. 273, pl. 24.) Tenant in tail after possibility of issue extinct makes a feoffment in fee and dies; the reversioner may enter on the feoffee even after the lapse of six years; but the justices of assize had doubted this and adjourned the case to Westminster.
1369. (43 Ass. f. 280, pl. 45.) A tenant for life, B tenant in remainder; A enfeoffs X in tail, remainder to Y ; X dies without issue, Y enters; may B enter on Y ? Yes, he may; but the case is discussed at length and the decision is put upon the ground that Y by entering has made himself a party to the forfeiture and a disseisor, and it still seems the opinion of the justices that one may not enter upon a person who is “in by title.” Brooke (Abrid. Entre Congeable , 85) comments on this case thus, “In those days one could not enter on him who was in by title, except in a special case (such as this was) where he was party to the tort, and one could not enter on one who was seised for a long time (que fuit seisie ans et jours), as appears frequently in the Book of Assizes. But otherwise in these days, for a man may enter on the twentieth alienee if there has been no descent to toll the entry, or something of the sort.”
1376. (Y. B. 50 Edw. III, f. 21, Mich. pl. 3.) M tenant for life; A reversioner; M enfeoffs X for life with remainder to Y in fee; M dies; X dies and Y enters; A or A ’s heir may enter on Y . This is decided after much debate. It is however asserted by counsel that a reversioner cannot enter on the feoffee of the feoffee of the tenant for life; at all events if he is to enter he must do so at once.