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 A SHORT HISTORY OF 
 ENGLISH LAW
 
 A SHORT ;•; 
 
 HISTORY OF ENGLISH LAW 
 
 FROM THE EARLIEST TIMES TO THE 
 END OF THE YEAR 1911 
 
 BY 
 
 EDWARD JENKS, M.A., B.C.L. 
 
 OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW, PRINCIPAL AND DIRECTOR 
 OF LEGAL STUDIES OF THE LAW SOCIETY, ENGLAND 
 
 BOSTON 
 
 LITTLE, BROWN, AND COMPANY 
 
 1913
 
 Copyright, 1912, 
 By Edward Jenks. 
 
 All rights reserved. 
 
 rtftur^v 
 
 MO»<;3 ■ 
 
 8. J. PAEKII1I.L A Co., IJOSTON, U. S. A.
 
 TO 
 
 OLIVER WENDELL HOLMES 
 
 ASSOCIATE JUSTICE OF THE SUPREME COURT 
 
 OF THE UNITED STATES 
 FORMERLY CHIEF JUSTICE OF MASSACHUSETTS 
 AUTHOR OF "THE COMMON LAW " 
 THE AMERICAN EDITION OF THIS WORK 
 
 IS (with permission) 
 
 DEDICATED
 
 PREFACE 
 
 About ten years ago, Messrs. Methuen & Co. approached the 
 author with a proposal for a "History of English Law" in one 
 volume. The interest aroused in a long-neglected subject by 
 the brilliant work of the late Sir Fitzjames Stephen, of Sir 
 Frederick Pollock, of Mr. Justice Holmes, and, above all, of the 
 late Professor Maitland, to say nothing of others whose contri- 
 butions, though more fragmentary, were profoundly interesting, 
 had convinced most teachers of English Law that a rich field 
 of educational effort awaited development. L^nfortunately, the 
 scale on which the writing of these authors was planned, ren- 
 dered them unsuitable for the average student, whose time was 
 limited ; and it was felt that the subject could hardly take the 
 place which it deserved in the ordinary training of the lawyer, till 
 some more modest, but comprehensive, manual had appeared. 
 At the time when the approach referred to was made, the 
 author's time was deeply pledged in other directions; and he 
 doubted, also, whether the moment had then arrived at which 
 the state of. available knowledge rendered such a work possible. 
 He therefore suggested an application to his friend Dr. Holds- 
 worth. 
 
 As is well known, that application was not made in vain ; 
 and the world is to-day the richer by Dr. Holdsworth's three 
 volumes. But, in the hands of Dr. Holdsworth, the work has 
 proved to be something very difierent from what was at first 
 contemplated ; and the plan for a single volume has developed 
 into a scheme of which the first three volumes bring us down 
 only to the end of the sixteenth century. 
 
 Meanwhile, largely owing to the labours of Professor Maitland 
 and other contributors to the noble series of volumes produced 
 by the Selden Society, more material has become available; 
 while the recent pubHcation, the fruit of American enterprise, 
 of the three volumes of Select Essays in Anglo-American Legal 
 History, has further stimulated interest in the subject.
 
 viii PREFACE 
 
 It seemed, therefore, to the author, that the time had at last 
 arrived, at which ^Messrs. Methuen & Co.'s original idea might 
 be realized ; and he ventured to approach them with a sugges- 
 tion for a revival of the plan. It was, of course, obviously due 
 to Dr. Holdsworth that his concurrence should also be obtained. 
 In both quarters the response was prompt and cordial ; and Dr. 
 Holdsworth, with great generosity, further offered to read the 
 proof sheets of the intended work, and give the author the benefit 
 of his criticism. 
 
 Thus the way seemed clear ; and the present book is the 
 result. As space was limited, the author has touched lightly 
 upon that side of our legal history which has already been made 
 the subject of adequate treatment, viz. the origin and develop- 
 ment of the Courts, and the relations of the State towards its 
 subjects. These can be found conveniently 'summarized in 
 Professor Maitland's posthumously published Constiiiitional His- 
 tory of England, in the first volume of Dr. Iloldsworth's His- 
 tory of English Laic, and in Dr. Carter's English Legal Institutions, 
 as well as in the many other useful treatises on Constitutional 
 History. But with this exception, the present volume attempts 
 to cover the whole field of English legal history, from the earliest 
 times to the present day. 
 
 That this is a sufficiently ambitious attempt, no one can be 
 better aware than the author. Though he has made no state- 
 ment which he has not verified from original evidence, he has, 
 naturally, availed himself to the full of the work of previous 
 writers for the earlier part of his task. But, from the end of the 
 sixteenth century, he has sailed over an almost uncharted sea; 
 and his responsibility is great. He can only plead that he has 
 kept a careful look-out, and that he has striven faithfully to sail 
 the ship in the main current, without attempting to enter the 
 bays and inlets, which to have explored would either have pro- 
 longed the voyage to an undue length, or have neglected the 
 essential for the picturesque but less important. 
 
 One other word as to the plan of the book may be permitted. 
 An American correspondent, whose reputation as a teacher and 
 writer stands high, has urged upon the author the adoption of 
 what is known as the "vertical" method of writing history, 
 by which the development of each existing institution is sepa- 
 rately traced from its origin to its present form. After long
 
 PREFACE ix 
 
 reflection, the author felt it impossible to adopt the plan pro- 
 posed by this suggestion, because, in his view, it would either 
 involve almost endless repetition, or it would obscure one of 
 the most important lessons to be learnt from English legal 
 history. For, if there is one truth which that history makes more 
 clear than another, it is that the sharp division into distinct 
 subjects which is so familiar a feature of a modern and highly 
 complex system of law, finds no place in its early stages. Prop- 
 erty, contract, tort, crime, even the apparently fundamental 
 distinction between substantive law and procedure, are not rec- 
 ognized by primitive people. The germs of all these ideas may 
 be detected in early law by the microscope of the expert ; just 
 as the future stem, tendrils, leaves, flowers, and fruit, may be 
 detected in the seed of a plant. But one of the most valuable 
 lessons to be learnt from the study of the growth of a native and 
 independent system of law like the English, is an appreciation 
 of the processes by which these specialized ideas have slowly 
 detached themselves from those primitive notions of right and 
 wrong which are the kernel of all systems of law. So the author 
 has adhered to the old-fashioned plan ; dividing his subject into 
 historical periods, marked by events wdiich seemed to him to be 
 milestones on the ever-broadening path of legal development. 
 
 It remains only for the author to express his grateful thanks 
 to those whose labours have rendered his task possible of achieve- 
 ment (if indeed it has been achieved), and to commit his work 
 to the judgment of the public. To Dr. Holdsworth, who, as 
 has been stated, has been kind enough to spare the time to read 
 the proof sheets, his thanks are most especially due. It is 
 needless to say that he has benefited greatly by Dr. Holdsworth's 
 suggestions ; and, where he has not been convinced by them, he 
 has, doubtless, been wrong. As for the work, the author will 
 be more than satisfied if his attempt encourages others to do 
 better. He makes, of course, no claim to completeness; his 
 hope is only that he has shown some sense of proportion, and 
 an essential reverence for the truth, which will not be found 
 without their uses. In a word, his aim has been to stimulate, 
 not to satisfy. 
 
 London, April, 1912.
 
 CONTENTS 
 
 PAGES 
 
 Table of Statutes xvii 
 
 Table of Cases xxix 
 
 List of Abbreviations xxxvii 
 
 PERIOD I 
 
 BEFOEE THE NORMAN CONQUEST 
 
 CHAPTER I 
 
 OLD ENGLISH LAW 
 
 The Anglo-Saxon Laws — relation to Roman Law and Canon Law — People's 
 Ranks — the problem of serfdom — the thegn — the blood feud — the wer- 
 gild system — oaths and ordeals — the 'bot-leas' wrongs — the 'King's 
 rights ' — theft and the law of property — vouching to warranty — property 
 in land — folc-land and boc-laud — contract and tort — ' wed ' and ' borh ' 
 — 'the view of Sir Henry Maine 3-13 
 
 PERIOD II 
 
 THE CONQUEST TO THE DEATH OF HENEY III 
 (1066-1272) 
 
 CHAPTER II 
 
 SOURCES OF THE COMMON LAW 
 
 The ' common law ' — its elements — (A) the lex terrae — the Quadripartitus — 
 Leges Henrici Primi — Leges Willelmi — Leges Edwardi — (B) Roman Law 
 
 — revival in the eleventhaud twelfth centuries — the Corpus Juris Civilis 
 
 — Bracton and the Roman Law — (C) Canon Law — jurisdiction of the 
 Church courts — theory of the ' English Canon Law ' — (D) Charters and 
 similar documents — (E) Official Practice — (a) 'Assises ' — (b) Records — 
 Domesday — Feet of Fines — Rolls of the King's Court — Inquest of 
 Knights' Fees — Inquest of Tenants in Capite — (c) Text-books — Glan- 
 
 ville — Bracton — discovery of Bractou's Note Book 17-25 
 
 CHAPTER III 
 
 FEUDALISM AND LAND LAW 
 
 Government and property — chattel law and land law — the theory of tenure 
 
 — Domesday Book and the tenants — the Hundred Rolls — Knight service 
 
 — Villenage (serfdom) — Socage — Frankalmoign — the settlement of 1164 
 
 — Moi-tmain — incidents of tenure — general and local — fealty and hom- 
 age — suit of court — service — aids and reliefs — wardship and marriage 
 
 — inheritance — gavelkind (socage) and primogeniture — escheat — rights 
 
 and methods of alienation — sub-infeudation — substitution . . . 26-38 
 
 xi
 
 xii CONTENTS 
 
 CHAPTER IV 
 
 IMPROVED LEGAL PROCEDURE 
 
 PAGES 
 
 Rival jurisdictions — local moots — Church courts — feudal courts — courts 
 merchant — growth of royal justice — criminal procedure — Assises of 
 Clarendon and Northampton — felony and misdemeanour — forfeiture for 
 felony — civil procedure — 'appeals' — restrictions on — gradual disuser 
 of — the Avrit of summons — compulsion — definition — Glanville's forms 
 of writ — original and judicial — failure of ol<i methods of trial — wager of 
 law — ordeal — battle — introduction of trial by jury — a royal privilege — 
 the ' incpiest ' — tiscal — judicial — the (irand Assise — the Petty Assises — 
 importance of seisin — the Writs of Entry — juries in criminal cases — 
 peine forte et dure — the 'petty' jury — Trespass — triumph of the King's 
 Courts 39-54 
 
 CHAPTER V 
 
 THE LAW OF CHATTELS 
 
 Land law and chattel law — the Writ of Debt — mystery of its nature — no 
 ' real ' action to recover chattels — ' f ungibility ' of money — Debt and 
 Detinue — recovery of the thing or its value — the obvious explanation — 
 the current explanation — succession to chattels — vagueness of early Eng- 
 lish law — the ' reasonable parts ' — the will of chattels — influence of the 
 Church — liability for deceased's debts — at first on the heir — appearance 
 of the ' executor ' — statutory recognition — ' realty ' to the heir, ' person- 
 alty ' to the executor — appeai-ance of contract — Glanville's treatment — 
 torts still wanting 55-67 
 
 PERIOD III 
 
 EDWARD I TO THE COMMONWEALTH 
 
 (1272-16G0) 
 
 CHAPTER VI 
 
 THE TRIUMPH OF THE KING's COURTS 
 
 Disappearance of feudal jurisdiction — over freemen — over serfs — the popu- 
 lar courts — the Statute of Gloucester — the Church courts — the Reforma- 
 tion and the Civil War — the Courts Merchant — sources and authorities 
 of the Common I^aw — the theory of its antiquity — Acts of Parliament — 
 the Register of Writs — the Year Hooks — the medieval legend — exploded 
 by Maitland — the early 'nominate' reporters — the Books of Entries — 
 text-book writers — Littleton, Fortescue, Fitzherbert, Coke . • . 71-82 
 
 CHAPTER VII 
 
 NEW INTERESTS IN LAND 
 
 Seisin — reversions — remainders — vested and contingent — difficulties with 
 seisin — entails — De Donis — Tultarurn's Case — terms of years — the bail 
 of land —i)ossession and seisin — the Statute of (iloucester — recognition 
 of the U'ase-holder as a tenant — Covenants Act, 1540 — waste — guardians 
 — fermors — tenants for life — statutory provisions — ' equitable ' waste — 
 incorporeal hereditaments — their nature — Quod Permittat — Assise d'Ar- 
 rein Presentment — Action of Case for Nuisance — ' uses' of land — feof- 
 fees to uses — religious and economic objects — protection of Chancery — 
 gradual recognition of uses — the Statute of Uses — three kinds of uses 
 escape — re-appear as ' trusts ' 83-101
 
 CONTENTS xiii 
 
 CHAPTER VIII 
 
 EIGHTS AND METHODS OF ALIENATION 
 
 PAGES 
 
 Quia Emptores — freeholds — copyholds — terms of years — reversions and 
 remainders — devises of land — wills of uses — ' executory devises ' — Stat- 
 ute of Wills — partition of co-ownership — Mortmain — charitable uses — 
 feoffments — beneficial operation — tortious operation — warranty — ef- 
 fects of — vouching to M'arranty — estoppel — lineal and collateral war- 
 ranties — effect of De Don is — Common Recoveries — barring entails — 
 other contingent rights — Fines — advantages overCommon Recoveries — 
 restricti(uis on etticacy of Fines — jileiis ttfectual — proclamations — stat- 
 ute of 1540 — grant of incorporeal hereditaments — doubt as to reversions 
 on terms of years ^covenants to stand seised — bargains and sales — 
 future uses — Statutes of Uses and Inrolments — the Lease and Release 102-122 
 
 CHAPTER IX 
 
 THE LAW OF PERSONAL PROPERTY 
 
 Choses in action — mortgages — at first chattel interests — ditticulties about 
 seisin — statute of 1545 — mortgages by long terms — statutes merchant 
 and staple — bills of exchange — dangers of transport — inequalities of 
 exchange — money statutes of the fourteenth and fifteetith centuries — 
 Malynes' treatise — monopolies — statute of 1623 — copyright — the licens- 
 ing system — succession to personal property — statutes for and against 
 executors — recognition of the administrator — Reformation policy — 
 claim of the executor to the residue 123-131 
 
 CHAPTER X 
 
 CONTRACT AND TORT 
 
 The Writ of Debt — limitations — W^rit of Detinue — allegation of bailment — 
 superseded in fourteenth century — Writ of Covenant — ' simple contract ' 
 
 — the Consimilis Casus statute — the Action of Case — in the nature of 
 Trespass — in the nature of Deceit — 'valuable consideration' — Doctor 
 and Student — establishment of the doctrine — the Action of Assumpsit — 
 Case in Trover — supersedes Detinue — Malicious Prosecution — connec- 
 tion with Conspiracy — Champerty and Maintenance — Nuisance — ' abate- 
 ment ' — Defamation — Slander — local jurisdiction — ecclesiastical courts 
 
 — Libel — in the Star Chamber — in the King's Bench — first a criminal 
 offence only — award of damages — statutory torts — harbouring or entic- 
 ing of servant 132-148 
 
 CHAPTER XI 
 
 CRIMINAL LAW AND PROCEDURE 
 
 New crimes — development of criminal procedure — the Justices of the Peace 
 
 — magisterial and judicial authority — the works of Fitzherbert and Lam- 
 bard — the classification of crimes — felonies and misdemeanours — indict- 
 ment and summary prosecution — work of Justices in and out of sessions 
 
 — general and special sessions — were there ' petty sessions ' ? — borough 
 Justices — disappearance of 'appeals of felony' — statutes of 1486 and 
 1529 — ' benefit of clergy ' — reduced by Reformation statutes — privilege 
 of sanctuary — abjuring the realm — statute of 1530 — reduction in num- 
 ber of sanctuaries — abolition of the privilege 149-11 iO
 
 xiv CONTENTS 
 
 CHAPTER XII 
 
 CIVIL PROCEDURE IN THE LATER MIDDLE AGES 
 
 PAGES 
 
 Introduction of written pleadings — form of pleadings — ' giving colour ' — 
 Equity procedure — differences in principle from Common Law procedure 
 — formless complaint — inquisitorial proceedings — no jury — degree i?t 
 persona)!} — the Star Chamber proce.-s — resemblance to Chancery — DoC' 
 tor ami Stmh'ut on Chancery jurisdiction — differences in procedure of the 
 three Common Law Courts — process of the Common Bench — attachment 
 and distress — outlawry — Writ of Capias — ' ac etiam ' clause — Bill of 
 Middlesex — the Latitat — Quominus in the Exchequer — retaliation of 
 Common Bench — unity of jurisdiction and power of arrest — statute 
 of 1444 — ' special bail ' — action of Ejectment — recovery of possession — 
 extension of remedy to freeholders — decay of ' real' actions — Statutes 
 of Forcible Entry — fictitious action of Ejectment — RoUe's reforms — 
 Doe V. Roe — reform scheme of the Little Parliament .... 161-182 
 
 PERIOD IV 
 
 THE EESTORATION TO THE PRESENT DAY 
 
 (1660-1911) 
 
 CHAPTER XIII 
 
 MODERN AUTHORITIES AND THE LEGAL PROFESSION 
 
 Parliamentary sovereignty — Acts of Parliament — Statutes Revised — Orders 
 in Council — prerogative and parliamentary — Rules and Orders of Court 
 
 — at first prerogative, then parliamentary — judicial decisions — 'author- 
 ized reports' — new type of anonymous reports — 'The Law Reports ' — 
 Roman Law — Canon Law — text-books — precedents — the legal profes- 
 sion — Serjeants— King's Counsel — ' utter ' barristers — students — the 
 Inns of Court — Council of Legal Education — General Council of the Bar 
 
 — attorneys and solicitors — scriveners — Inns of Chancery — decay and 
 extinction — the Society of Gentlemen Practisers — the Law Society — its 
 functions 185-206 
 
 CHAPTER XIV 
 
 REFORM BY EQUITY 
 
 Legislative stagnation of the eighteenth century — Chancery — 'grace' — 
 ' conscience ' — the statesmen Chancellors — new type after Restoration — 
 ' ecjuity ' — other Chant'ery officers — Masters — ^the Master of the Rolls — 
 the literarj' quarrel of 172<)-7 — statute of 17;iO — development of equitable 
 doctrines — mortgages — 'tacking' and 'consolidation' — specific per- 
 formance of contracts — ' part performance ' — trusts — protection against 
 incidents of trustee's estate — assimilation to rules of law — provisions of 
 Statute of Frauds — Married Women's Property — Common Law rules — 
 'separate estate' recognized by Equity — 'equity to a settlement' — 
 powers of alienation — ' restraint on anticipation ' — administration of es- 
 tates — failure of the ecclesiastical tril)uiials — resort to Common Law — 
 'retainer' and 'preference' — growth of 'equitable assets ' — sujjcrior 
 attractions of Chancery — gradual acquisition of monopoly — new doctrines 
 
 — ' marshalling ' — ' conversion ' — ' satisfaction ' and ' performance ' — 
 'ademption' — 'election' — Exchequer jurisdiction in Equity — Lord 
 Mansfield and the Law Merchant — cl(«e of the reforming period of 
 Equity 207-236
 
 CONTENTS XV 
 
 CHAPTER XV 
 
 CHANGES IN LAND LAW 
 
 PAGES 
 
 The Act of 1660 — the Statute of Frauds — blank in the eighteenth century — 
 the reform period — freedom of alienation — Statute of Frauds — Wills 
 Act — Real Property Act — relief against forfeiture for breach of condition 
 
 — in Equity — under statute — alienation by ' limited owners ' — early pro- 
 visions — settlement system of Civil War — express powers — Act of 1856 
 
 — Improvement of Land Acts — Settled Estates Act, 1877 — Settled Land 
 Act, 1882, and its amendments — Haws in the statutes — statutory powers 
 of mortgagee and mortgagor — Lord Crauworth's Act — Conveyancing Act, 
 1881 — liability of land for payment of debts — (a) of deceased debtor — 
 (b) of living debtor — Inheritance Act — Locke King's Acts — changes in 
 the rules of contingent remainders — abolition of Fines and Recoveries — 
 corporeal hereditaments made to ' lie in grant' — other conveyancing re- 
 forms of the Real Property Act — registration of deeds and title — the 
 Bedford Level — the Yorkshire and Middlesex Registries — Lord West- 
 bury 's Acts — Lord Cairns' Act — Lord Halsbury's Act — compulsory regis- 
 tration — diiTerences of opinion as to value of system — registration of 
 charges — Acts of 1888 and 1900 — enclosure policy — Statutes of Merton 
 and Westminster ll — enclosures of sixteenth century — enclosures of 
 eighteenth and nineteenth — private Acts — general Inclosure Acts — 
 Commons Preservation Society — statutes restricting enclosure and facili- 
 tating dedication 237-265 
 
 CHAPTER XVI 
 
 NEW FORMS OF PERSONAL FROFERTr 
 
 Chattels corporeal — intestate succession — Statutes of Distribution — local 
 customs — the Intestates' Estates Act, IStK) — wills of i^ersonalty — Statute 
 of Frauds — exclusion of testimony — Act of 1752 — Act of 1837 — Lord 
 Kingsdown's Act — ' reputed ownership ' — Bills of Sale Acts — differences 
 between two classes of bills of sale — choses in action — when is a chose 
 in action? — earlier and later types — copyright — early statutes about 
 printed books — the Stationers' Company — action of the Commonwealth 
 
 — Licensing Act of 1662 — refusal of the Commons to renew —first Copy- 
 right Act —Do7i(dclson v. Beckett — Pope v. Curl — Copyright Act, 1842 — 
 international copyright — colonial copyright — Act of 1911 — ' patents ' — 
 extension to 'designs' — Act of 1852 — trade marks— Act of 1875 — Act 
 of 1883 — Trade Marks Act, 1905 — consolidating statute of 1907 — stock, 
 shares, and debentures — various forms of co-ownership — joint stock 
 companies — doubt as to ' monopolies ' — Sir John Barnard's Act — Acts 
 of 1825 and 1837 — introduction of limited liability — legislation of 1844-5 
 
 — Companies Act, 1862, and amendments — debentures and debenture 
 stock — legislation of 1890 — consolidating Act of liX)8 — ships — Naviga- 
 tion Acts— the registry system — the Merchant Shipping Acts — Act of 
 1894 — transfer of choses in action — evasion of common law rule — atti- 
 tude of equity — doubt as to valuable consideration — overruled by Lord 
 Hardwicke — Judicature Act, 1873 — statutory forms of transfer . 266-297 
 
 CHAPTER XVII 
 
 CONTRACT AND TORT IN MODERN LAW 
 
 Slacle's Case and the theory of simple contract — the Statute of Frauds — bail- 
 ments and consideration — action for ' breach of promise ' — contracts of 
 infants — Act of 1874 — married women — Acts of 1870, 1874, 1882, and 
 1893 — torts — Deceit — Defamation — Fox's Libel Act — Parliamentary 
 Papers Act, Lord Campbell's Act, Newspaper Libel Act, and Law of Libel 
 Amendment Act — Slander of Women Act — Negligence — labour organ- 
 izations and the law — history of the question — the Statutes of Labourers 
 — Elizabethan amendments — the industrial revolution of the eighteenth
 
 xvi CONTEXTS 
 
 century — appearance of Trade Unions — repeal of the Combination Laws 
 
 — doctrine of ' common employment ' — Employers' Liability Act — ' crim- 
 inal conspiracy' — Master and Servant Act — Trade Union Acts — Con- 
 spiracy and Protection of Property Act — 'civil conspiracy' — Mogul 
 Slecnnship Case and Teinpertoi) v. B'lfSfll — Tarl' Vale Caisfi andtbe Trade 
 Disputes Act — recent decisions — Workmen's Compensation Acts — Old 
 
 Age Pensions and Insurance Acts 298-331 
 
 CHAPTER XVIII 
 
 REFORM IN THE CRIMIXAL LAW 
 
 Habeas Corpus — history of — Act of 1079 — criminal informations — Treason 
 Act — transportation — Stipendiary Magistrates — penal servitude — 
 Peel's reforms in criminal law — Trials for Felony Act — Sir John Jervis' 
 Acts — consolidating statutes of IfSfJl — Criminal Procedure Act — aboli- 
 tion of public executions — establishment of Public Prosecutor — Criminal 
 Evidence Act — Poor Prisoners' Defence Act — Court of Criminal Ap- 
 peal 333-345 
 
 CHAPTER XIX 
 
 MODERN CIVIL PROCEDURE 
 
 •Acetiams' again — proceedings in English — Uniformity of Process Act- 
 Civil Procedure Act — Rules of Court thereunder — abolition of 'real' 
 actions — period of limitation for recovery of land — Prescription Act — 
 not a code — ' common law ' prescription — Chancery reform — Contempt 
 of Court Act — transfer of Equity jurisdiction from the Exchequer — con- 
 vergent statutes for common law and equity procedure — Common Law 
 Procedure Acts — Common Law Courts Act — Chancery Amendment Acts 
 
 — the Judicature Commission — five recommendations — (1) consolidation 
 of superior tribunals — question of the House of Lords and the Judicial 
 Committee — crisis of 1874 — restoration of these tribunals — conflicting 
 rules of law — distinction between law and equity not abolished — (2) short- 
 ening of pleadings — (3) partial abolition of the jury system — (4) oral 
 evidence — (5) abolition of ' Terms ' — proposals for re-arrangement of the 
 circuit system — establishment of County Courts — enlargement of juris- 
 diction — history of bankruptcy procedure 346-379 
 
 Index 381
 
 TABLE OF STATUTES 
 
 1215 
 
 PAGE 
 
 Magna Carta 33, 34, 35, 43, 48, 51, 61, 63, 91 
 
 1225 
 
 9 Hen. Ill c. 32 (Magna Carta) 
 
 . 103 
 
 1235-6 
 
 20 Hen. Ill (Statute of Merton) 
 
 22, 
 
 40, 201, 262 
 
 1258 
 
 Provisions of Oxford ' . 
 
 
 22 
 
 1267 
 
 52 Hen. Ill (Statute of iMarlborough) .... 
 
 
 22 
 
 
 c. 17 
 
 
 34, 91, 174 
 
 
 c. 22 
 
 
 51 
 
 
 c. 23 
 
 
 . 91, 92 
 
 
 C. 29 ....;. . 
 
 
 51 
 
 1275 
 
 3 Edw. I, St. I. (Statute of Westminster the First) . 
 
 
 76 
 
 
 c. 12 
 
 
 51 
 
 
 c. 15 
 
 
 . 333 
 
 
 c. 19 
 
 
 62 
 
 
 c. 21 
 
 
 91 
 
 
 c. 24 . . . . . 
 
 
 . 136 
 
 
 c. 25 
 
 
 . 143 
 
 
 c. 34 
 
 
 • 146 
 
 
 c. 36 
 
 
 34 
 
 
 c. 40 
 
 
 85, 110 
 
 1276 
 
 4 Edw. I, St. Ill, c. 6 (Statute of Bigamy) 
 
 
 . 1.09 
 
 1278 
 
 6 Edw, I (Statute of Gloucester) .... 
 
 
 . 72, 76 
 
 
 c. 3 
 
 
 12, 116, 117 
 
 
 c. 5 
 
 
 
 91 
 
 
 c. 8 
 
 
 
 73, 201 
 
 
 c. 9 
 
 . 
 
 
 . 154 
 
 
 c. 11 
 
 
 
 90, 91, 135 
 
 1279 
 
 7 Edw. I, St. II (Mortmain) 
 
 
 31, 105 
 
 1283 
 
 11 Edw. I (Statute of Acton Burnel) .... 
 
 
 . 126 
 
 1285 
 
 13 Edw. I (Statute of Westminster tlie Second) . 
 
 
 76, 172 
 
 
 c. 1 84, 
 
 87, 
 
 112, 117, 126 
 
 
 c. 3 
 
 
 
 . 113 
 
 
 c. 4 
 
 
 
 . 113 
 
 
 c. 11 
 
 . ' . 
 
 
 . 133 
 
 
 c. 12 
 
 
 
 . 155 
 
 
 c. 18 
 
 
 95, ] 
 
 126, 165, 250 
 
 
 c. 19 
 
 
 
 64, 131 
 
 
 c. 23 
 
 
 
 64, 131 
 
 
 c. 24 
 
 
 
 . 45, 77, 136 
 
 
 c. 25 
 
 
 
 94 
 
 
 c. 41 
 
 
 
 . 105 
 
 
 c. 46 
 
 
 
 . 262 
 
 
 c. 49 
 
 
 
 . 143 
 
 
 St. II (Statute of Winchester) 
 
 
 76 
 
 
 St. Ill {Cira 
 
 imspecte Af/atis) 
 
 
 . 74, 76
 
 XVlll 
 
 TABLE OF STATUTES 
 
 1 _.tO 18 Edw. I, St. I (Quia Emptores) 
 c. 1 - . 
 
 c. 3 
 
 Vm 20 Edw. I, St. II (Waste) . 
 l.".)2 20 Edw. I, St. I (Vouchers) 
 1_99 27 Edw. I, St. I {Finlb^is Lrvatis) 
 
 St. II (Liberties) 
 1 . )0 28 Edw. I, St. I (Articnli super Cartas) 
 28 Edw. I, St. II (Appeals) . 
 28 Edw. I, St. Ill (Conspiracy) . 
 l;:35 33 Edw. I, St. II (Conspiracy) . 
 St. Ill (Champerty) . 
 in06 34 Edw. I, St. Ill (Mortmain) . 
 1:315 9 Edw. II, St. I {Articnli Cleri) 
 
 c. 4 .... 
 
 c. 12 
 c. 15 
 1323 17 Edw. II, St. I (Homage and Fealty) 
 
 St. II, c. 7 (Pr(erogativa Begis) 
 1327 1 Edw. Ill, St. II, c. 12 (Tenants in capite) 
 
 c. 11 (Prohibition) 
 1330 4 Edw. Ill, c. 7 (Executors) 
 
 1335 9 Edw. Ill, St. II, c. 7 (Money) 
 
 1344 18 Edw. Ill, St. II, c. 6 (Coinage) 
 
 St. Ill, c. 3 (Mortmain) 
 l:;49 23 Edw. Ill (Labourers) 
 1350 25 Edw. Ill, St. I (Labourers) . 
 
 1352 25 Edw. Ill, St. V 
 
 c. 2 (Treason) 
 
 c. 3 (Jury) . 
 
 c. 5 (Executors) 
 
 c. 11 (Aids) . 
 
 c. 17 (Arrest on Mesne Process) 
 
 1353 27 Edw. Ill, St. II (Staple) 
 
 c. 9 
 
 c. 14 
 
 1360 34 Edw. Ill, c. 1 (Justices of the Peace) . 
 
 c. 1 (7) 
 
 cc. 9-11 (Labourers) 
 
 c. 16 (Continual Claim) . 
 ].;02 36 Edw. in, St. I, c. 15 (Pleadings) . 
 1 ;76 60 & 51 Edw. Ill, c. (Uses) 
 
 1377 1 Kic. II, c. !) (Maintenance) 
 
 c. 12 
 
 1378 2 Ric. II, St. I, c. 5 (ScnndaJum Mnrjnatum) 
 
 1379 3 Ric. II, c. 3 (2) (Bills of Exchange) 
 1381 5 Ric. II, St. I, c. 4 (Forcible Entry) 
 
 c. 8 
 
 1383 7 Ric. II, c. 12 (Uses) .... 
 
 ] 585 9 Ric. II, c. 3 (Recoveries) 
 
 1 ;88 VA Ric. II, c. 11 {tScandalum Magnatum) . 
 
 PAGE 
 
 . 102 
 102, 109, 238 
 105 
 91 
 . 110 
 . 117 
 105, 201 
 34 
 155, 321 
 . 144 
 142, 143, 321 
 . 143 
 . 106 
 
 . 145 
 . 159 
 . 159 
 32 
 . 103 
 . 103 
 143, 145 
 130, 301 
 127 
 . 127 
 . .106 
 147, 313, 314 
 147, 150, 314 
 
 149 
 52 
 
 130 
 34 
 
 172 
 
 . 126 
 . 128 
 . 150 
 . 152 
 147, 313 
 . 117 
 . 161 
 96 
 
 . 133 
 . 146 
 128 
 , 274 
 106, 175 
 97 
 
 140
 
 TABLE OF STATUTES 
 
 x.:z 
 
 14 Ric. 
 
 15 Ric. 
 
 II, c. 
 II, c. 
 
 16 Ric. 
 
 17 Ric. 
 
 1 Hen. 
 
 2 Hen. 
 
 4 Hen. 
 
 5 Hen. 
 
 11 Hen. 
 
 13 Hen. 
 
 2 Hen. 
 
 8 Hen. 
 11 Hen. 
 15 Hen. 
 23 Hen. 
 
 17 Edw. 
 
 1 Ric. Ill, c 
 
 3 Hen. 
 
 4 Hen. 
 
 11 Hen. 
 
 19 Hen. 
 
 6 Hen. 
 21 Hen. 
 
 22 Hen. 
 
 23 Hen. 
 
 25 Hen. 
 
 27 Hen, 
 
 2 (Money) 
 
 2 (Forcible Entry) . 
 
 c. 5 (Mortmain) 
 
 c. 12 (Private Courts) 
 [I, c. 2 (Private Courts) . 
 [I, c. 6 (Cliancery) . 
 IV, c. 14 (Appeals) 
 IV, c. 11 (Case) 
 IV, c. 18 (Attorneys) 
 IV, cc. 4, 5 (Maiming) . 
 
 c. 8 (Debt) 
 IV, c. 8 (Coinage) . 
 
 IV, c. 7 (Riots) 
 
 V, St. I, c. 7 (Heresies) . 
 St. II, c. 1 (Juries) . 
 
 VI, c. 9 (Forcible Entry) 
 VI, c. 5 (Uses) 
 VI, c. 4 (Chancery) 
 
 VI, c. 9 (Bail) 
 IV, c. 1 (Money) . 
 
 c. 4 (Tile making) . 
 1 (Trusts) 
 c. 3 (Bail) 
 
 7 (Proclamations) 
 
 9 (Customs) 
 
 1 (Appeals) 
 
 4 (Uses) 
 17 (Uses) . 
 
 c. 24 (Proclamations) 
 c. 20 (Warranty) . 
 c. 22 (Labourers) . 
 
 VII, c. 9 (Case) . 
 c. 15 (Uses) . 
 
 3 (Labourers) 
 
 5 (Church Courts) 
 7 (Embezzlement) 
 
 11 (Restitution) 
 15 (Common Recoveries) 
 36 (Common Recoveries) 
 
 VIII, c. 14 (Sanctuary) . 
 VIII, c. 1 (Benefit of Clergy) 
 
 c. 6 (Recognizances) 
 
 c. 9 (Wrongful suit) 
 
 c. 10 (Gilds^) . 
 VIII, c. 3 (Unnatural Offences) 
 
 c. 15 (Printing) 
 
 c. 19 (Canon Law) . 
 VIII, c. 10 (Statute of Uses) 
 
 c. 24 (Justices of the Peace) 
 
 c 27 ) 
 ■ [ (Court of Augmentations) 
 
 VII, 
 VII, 
 
 VII, 
 
 VIII, c. 
 VIII, c. 
 
 c. 
 
 c. 
 
 c. 
 
 c. 
 
 . 1; ■!. 
 
 175, 2, t 
 
 97, 99, 1( 'Ji 
 
 1< - 
 irh 
 1- ." 
 2( I 
 li • 
 1L> 
 li i 
 
 If ; 
 
 •; I 
 
 ( ; 
 
 106, 108, 11 :> 
 
 97, VA 
 
 ICL- 
 
 173, 34 ) 
 
 lii 
 
 221 
 15 > 
 
 11 r 
 
 27'; 
 
 155, 20 1 
 
 10! 
 
 116, 11 ; 
 112, ii:? 
 313, 31 1 
 
 313, 314 
 
 130, 2(i7 
 
 1-1 > 
 
 l:3r> 
 
 174 
 
 90 
 
 15') 
 
 74, 157 
 
 I2r; 
 
 147 
 
 lOG 
 
 14t) 
 
 27(; 
 
 19{> 
 
 99, 104, 119, 253 
 154 
 
 237
 
 XX 
 
 TABLE OF STATUTES 
 
 153G 
 
 27 Hen. VIII, c. 
 
 16 (Inrolments) 
 
 
 
 28 Hen. VIII, c. 
 
 1 (Henelit of Clergy) 
 
 1539 
 
 31 Hen. VIII, c. 
 
 1 (Partition) 
 
 1540 
 
 32 Hen. VIII, c. 
 
 1 (Wills) . . . . 
 
 
 c. 
 
 2 (Prescription) 
 
 
 c. 
 
 9 (Maintenance) 
 
 
 c. 
 
 12 (Sanctuaries) 
 
 
 c. 
 
 28 (Leases) 
 
 
 c. 
 
 31 (Recoveries) . 
 
 
 c. 
 
 34 (Covenants) . 
 
 
 c. 
 
 30 (Fines) . . . . 
 
 
 c. 
 
 40 (Court of Wards) . 
 
 1541 
 
 33 Hen. VIII, c. 
 
 1 (Embezzlement) 
 
 
 c. 
 
 6 (Shooting) 
 
 
 c. 
 
 8 (Witchcraft) . 
 
 
 c. 
 
 10 (Justices) 
 
 
 c. 
 
 23 (Juries) 
 
 1542 
 
 34 & 35 Hen. A^II, c. 4 (Bankruptcy) 
 
 
 c. 
 
 5 (Wills) . . . . 
 
 
 c. 
 
 20 (Fines) . 
 
 154:1 
 
 85 Hen. VIII, c 
 
 10 (Canon Law) 
 
 1645 
 
 37 Hen. VIII, c 
 
 7 (Justices) 
 
 
 c. 
 
 9 (Usury) . . . . 
 
 1547 
 
 1 Edw. VI, c. 
 
 12 (Treasons) 
 
 1548 
 
 2 & 3 Edw. VI, 
 
 c. 15 (Conspiracy) 
 
 1552 
 
 5 & G Edw. VI 
 
 c. 10 (Robbery) 
 
 
 c. 
 
 11 (Forfeiture) . 
 
 
 7 Edw. VI, c. 2 (Court of Augmentations) 
 
 1553 
 
 7 Edw. VI, c. 7 
 
 (.\ssise of Fuel) 
 
 
 1 Mary, St. II. 
 
 c. 5 (Limitation) 
 
 
 c 
 
 . 10 (Court of Augmentatioi 
 
 1554 
 
 1 & 2 Ph. & M. 
 
 c. 3 (Sedition) . 
 
 
 c 
 
 . 13 (Bail) . 
 
 
 1555 
 
 2 & 3 Ph. & M. 
 
 c. 10 (Bail) 
 
 
 
 c 
 
 . 10 (Watermen) 
 
 
 1558 
 
 1 Eliz. c. 6 (Sedition) 
 
 
 1562 
 
 5 Eliz. c. 4 (Apprentice.s) . 
 
 
 
 c. 14 (E 
 
 orgery) 
 
 
 
 c. 10 (Witchcraft) . 
 
 
 
 c. 18 (L 
 
 ord Keeper) 
 
 
 
 c. 20 (I 
 
 irolments) . 
 
 
 1505 
 
 8 Eliz. c. 4 (He 
 
 nefit of Clergy) 
 
 
 1570-1 
 
 13 Eliz. c. 5 (Fraud) . 
 
 
 
 c. 7 (H; 
 
 nkruptcy) . 
 
 
 
 c. 8 (Usury) . 
 
 
 1572 
 
 14 Eliz. c. 8 (Recoveries) 
 
 
 1570 
 
 18 Eliz. c. 7 (Re 
 
 nefit of Clergy) 
 
 
 1581 
 
 23 Eliz. c. 1 (Treason) 
 c. 3 (Fines) 
 
 
 1585 
 
 27 Eliz. c. (Fines) 
 
 
 1589 
 
 31 Eliz. c. 2 (Fines) 
 
 
 99, 
 
 104, 2 
 
 
 PAGE 
 
 , , 
 
 120 
 
 . 74, 
 
 157 
 
 
 105 
 
 227, 240, 
 
 209 
 
 . • 
 
 353 
 
 170, 
 
 241 
 
 
 159 
 
 117, 241, 
 
 243 
 
 
 115 
 
 90, 
 
 103 
 
 
 117 
 
 
 238 
 
 , , 
 
 149 
 
 , , 
 
 152 
 
 . 
 
 149 
 
 
 154 
 
 
 330 
 
 75 
 
 374 
 
 105 
 
 222 
 
 
 114 
 
 
 106 
 
 
 154 
 
 
 125 
 
 149 
 
 157 
 
 
 315 
 
 
 157 
 
 
 244 
 
 
 237 
 
 
 152 
 
 
 353 
 
 
 237 
 
 
 146 
 
 
 150 
 
 
 150 
 
 
 152 
 
 
 146 
 
 
 314 
 
 
 149 
 
 
 149 
 
 
 208 
 
 
 121 
 
 
 157 
 
 . 271 
 
 272 
 
 . 76 
 
 374 
 
 
 125 
 
 
 114 
 
 74, 
 
 157 
 
 . 
 
 149 
 
 , . 
 
 117 
 
 . 
 
 173 
 
 , , 
 
 117
 
 TABLE OF STATUTES 
 
 XXI 
 
 ue Vie) 
 
 129, 
 
 34 
 
 1597 39 Eliz. c. 3 (Poor Law) 
 
 c. 9 (Abduction) 
 1601 43 Eliz. c. 4 (Charities) 
 
 c. 7 (Vagabonds) 
 1603-4 1 Jac. I, c. 11 (Bigamy) . 
 
 c. 12 (Witchcraft) . 
 
 c. 15 (Bankruptcy) . 
 
 c. 26 (Statute Law Revision) 
 1605 3 Jac. I, c. 7 (Attorneys) . 
 
 1623 21 Jac. I, c. 3 (Monopolies) 
 
 0. 10 (Bankruptcy) 
 
 c. 15 (Forcible Entry) 
 
 c. 16 (Limitation) . 
 
 c. 19 (Bankruptcy) . 
 
 c. 28 (Sanctuary) 
 1627-8 3 Car. I, c. 1 (Petition of Right) 
 1640 16 Car. I, c. 10 {Habeas Corpus) 
 
 1660 12 Car. II, c. 18 (Navigation) 
 
 c. 24 (Tenures) 
 
 1661 13 Car. II, St. I, cc. 2, 12 (Church Courts) 
 
 1662 St. II, c. 2 (Arrest on Mesne Process) 
 
 c. 24 (Bankruptcy) 
 c. 33 (Licensing) . 
 
 1663 15 Car. II, c. xvii (Bedford Level) 
 1667 18 & 19 Car. II, c. 6 (or 11) (Cestui Q 
 1670 22 & 23 Car. II, c. 10 (Distribution) 
 1677 29 Car. II, c. 3 (Statute of Frauds) 
 
 239 
 1679 31 Car. II, c, 2 (Habeas Corpus) 
 1685 1 Jac. II, c. 17 (Distribution) 
 
 1688 1 W. & M. St. I, c. 21 (Lords Commissioners) 
 
 1689 1 W. & M. St. 11, c. 2 (Bill of Rights) 
 
 1691 3 W. & xM. c. 14 (Fraudulent Devises) 
 
 1692 4 W. & M. c. 2 (Wills) .... 
 4 & 5 W. & M. c. 18 (Criminal Information) 
 
 c. 20 (Judgments) 
 
 1694 5 & 6 W. & M. c. 20 (Bank of England) . 
 
 1695 7 & 8 W. Ill, c. 3 (Treason) 
 
 c. 22 (Ships) 
 
 1696 8 & 9 W. Ill, c. 11 (Bond) 
 
 c. 38 (Wills) .... 
 1700 12 & 13 W. Ill, c. 2 (Act of Settlement) 
 1703 2 & 3 Anne, c. 4 (Land Registry) 
 
 c. 5 (Wills) .... 
 
 1705 4 & 5 Anne, c. 3 (or 16) (Amendment of the Law) 
 
 c. 4 (or 17) (Bankruptcy) 
 
 1706 5 Anne, c. 9 (or 6) (Benefit of Clergy) 
 
 1707 6 Anne, c. 37 (or 3) (East India Company) 
 
 c. 72 (or 18) (Cestui Que Vie) 
 c. 62 (or 35) (Land Registry) 
 
 1708 7 Anne, c. 12 (Diplomatic Privileges) 
 
 153 
 
 157 
 
 106 
 
 153 
 
 149 
 
 149 
 
 75, 374 
 
 160, 189 
 
 . 201 
 
 207, 278, 283, 287 
 
 75 
 
 175 
 
 207, 351, 353 
 
 . 271 
 
 . 160 
 
 207, 334 
 
 207, 335 
 
 207, 292 
 
 83, 207, 237, 238, 240 
 
 74 
 
 207, 333, 347 
 
 . 376 
 
 129, 277 
 
 . 255 
 
 . 230 
 
 131, 207, 267, 268 
 
 105, 119, 207, 217, 221, 228, 
 
 254, 261, 269, 295, 299, 303, 308 
 
 207, 333, 335 
 
 131, 207, 268 
 
 211 
 
 207 
 
 207, 227, 240 
 
 . 268 
 
 . 336 
 
 . 261 
 
 . 287 
 
 207, 336 
 
 . 293 
 
 . 207 
 
 . 268 
 
 . 208 
 
 180, 256 
 
 . 268 
 
 112, 179, 207, 270 
 
 375 
 
 157 
 
 287 
 
 239 
 
 256 
 
 207
 
 XXll 
 
 TABLE OF STATUTES 
 
 1708 
 1709 
 
 1717 
 1718 
 1719 
 1724 
 1725 
 1729 
 1730 
 1731 
 1732 
 
 1733 
 
 1735 
 
 1737 
 1750 
 1752 
 1753 
 1707 
 1772 
 1773 
 1774 
 1779 
 178(3 
 1787 
 1792 
 
 1794 
 1799 
 1800 
 1801 
 
 1803 
 1807 
 1809 
 1813 
 1814 
 1815 
 1816 
 1819 
 1823 
 1824 
 
 1825 
 
 1827 
 
 Anne, c. 20 (Land Registry) . 
 
 Anne, c. 18 (or 14) (Landlord and Tenant) 
 
 c. 21 (or 19) (Copyright) 
 Geo. I, c. 11 (Transportation) 
 Geo. I, c. 19 (Soutli Sea Company) 
 Geo. I, c. 18 (Royal Exchange Assurance) 
 Geo. I, c. 18 (Wills) 
 Geo. I, c. 29 (Arrest on Mesne Process) 
 Geo. II, c. 23 (Attorneys) 
 Geo. II, c. 28 (Landlord and Tenant) 
 Geo. II, c. 26 (Proceedings in English) 
 Geo, II, 0. 27 (Small Debts) . 
 
 c. 30 (Bankruptcy) 
 Geo. II, c. 8 (Stock Jobbing) . 
 Geo. II, c. 6 (Land Registry) . 
 Geo. II, c. 36 (Charitable Uses) 
 Geo. II, c. 19 (Distress for Rent) . 
 Geo. II, c. 26 (Attorneys) 
 Geo. II, c. 6 (Witnesses) 
 Geo. II, c. 33 (Marriages) 
 Geo. Ill, c. 48 (Companies) 
 Geo. Ill, c. 20 (Pleading) 
 Geo. Ill, c. 26 (Ships) . 
 Geo. Ill, c. 78 (Life Assurance) 
 Geo. Ill, c. 70 (Arrest on Mesne Process) 
 Geo. Ill, c. 00 (Ships) . 
 Geo. Ill, c. 38 (Designs) 
 Geo. Ill, c. 53 (Stipendiary Magistrates) 
 
 c. 60 (Libel) . 
 Geo. Ill, c. 23 (Designs) 
 Geo. Ill, c. 81 (Conspiracy) . 
 & 40 Geo. Ill, c. 106 (Conspiracy) . 
 Geo. Ill, c. 107 (15ooks) . 
 
 c. 109 (Inclosures) 
 Geo. Ill, c. 46 (Payment into Court) 
 Geo. Ill, St. II, c. 74 (Debts) 
 Geo. Ill, c. 115 (Insolvent Debtors) 
 Geo. Ill, c. 24 (Vice-chancellor) . 
 Geo. Ill, c. 156 (Copyright) . 
 Geo. Ill, c. 192 (Will) . 
 Geo. Ill, c. 100 {Habeas Corpus) . 
 Geo. Ill, c. 46 (Trial by Battle) 
 Geo. IV, c. 41 (Shipping) 
 Geo. IV, c. 95 (Conspiracy) . 
 
 c. 26 (Bankruptcy) 
 Geo. IV, c. 91 (Companies) 
 
 c. 105 (Customs) . 
 
 c. 110 (Sliipjjjng) . 
 
 c. 129 (Con.spiracy) 
 & 8 Geo. IV, c. 28 (Benefit of Clergy) 
 
 c. 29 (Larceny) 
 
 PAGE 
 
 180, 256 
 133, 207 
 130, 278 
 337 
 287 
 287 
 268 
 348 
 204 
 207, 240, 242 
 348 
 348 
 375 
 288 
 2.56 
 207 
 207, 240 
 204 
 270 
 303 
 288 
 51 
 293 
 207, 311 
 348 
 293 
 283 
 337 
 309 
 283 
 315 
 315 
 279 
 264 
 348 
 2.50 
 370 
 214 
 279 
 241 
 335 
 55, 156 
 293 
 316 
 375 
 288 
 293 
 293 
 317 
 157, 338 
 . 339 
 
 43,
 
 TABLE OF STATUTES 
 
 XXlll 
 
 1827 
 1828 
 
 1829 
 1830 
 
 1831 
 1832 
 
 1833 
 
 1834 
 
 1835 
 
 1836 
 1837 
 
 1838 
 
 1839 
 
 1840 
 1841 
 1842 
 
 1843 
 
 1844 
 
 7 & 8 Geo. IV, c. 30 (Malicious Injuries) . 
 9 Geo. IV, c. 14 (Statute of Frauds Amendment) 
 c. 31 (Offences against the Person) 
 
 10 Geo. IV, c. 44 (Police) .... 
 
 11 Geo. IV and 1 Will. IV, c. 36 (Chancery) 
 
 c. 40 (Debts) . 
 c. 6(3 (Forgery) 
 c. 70 (Exchequer Chamber) 
 
 1 & 2 Will. IV, c. 56 (Bankruptcy) . 
 
 2 & 3 Will. IV, c. 34 (Coinage Offences) 
 
 0. 39 (Uniformity of Process) 
 c. 71 (Prescription) 
 
 3 & 4 Will. IV, c. 15 (Copyright) 
 
 c. 27 (Limitation) . 
 
 c. 42 (Civil Procedure) . . . 142, 
 
 c. 74 (Fines and Recoveries) 
 
 c. 94 (Chancery) . 
 
 c. 104 (Debts) 
 
 c. 100 (Inheritance) 
 
 4 & 5 Will. IV, c. 23 (Escheat of Trust Property) 
 
 c. 36 (Central Criminal Court) 
 c. 94 (Companies) 
 
 5 & 6 Will. IV, c. 76 (Municipal Corporations) 
 
 c. 83 (Patents) . 
 
 6 & 7 Will. IV, c. 114 (Trials for Felony) 
 
 7 Wm. IV & 1 Vict. c. 26 (Wills) 
 
 c. 73 (Companies) 
 
 c. 84 (Forgery) . 
 
 c. 85 (Offences against the Person) 
 
 c. 86 (Burglary) . 
 
 c. 87 (Robbery) . 
 
 c. 88 (Piracy) 
 
 c. 89 (Arson) 
 
 c. 90 (Transportation) 
 
 c. 91 (Capital Punishment) 
 
 1 & 2 Vict. c. 59 (Copyright) 
 
 c. 110 (Judgments) .... 250, 
 
 2 & 3 Vict. c. 17 (Designs) 
 
 c. 93 (Police) 
 
 3 & 4 Vict. c. 9 (Parliamentary Papers) 
 5 Vict. c. 5 (Chancery) 
 
 5 & 6 Vict. c. 45 (Copyright) . 
 
 c. 100 (Designs) 
 
 c. 103 (Chancery) . 
 
 c. 122 (Bankruptcy) 
 
 6 & 7 Vict. c. 65 (Designs) 
 
 c. 73 (Solicitors) 
 0. 85 (Evidence) 
 c. 96 (Libel) 
 
 7 & 8 Vict. c. 12 (Copyright) . 
 
 c. 76 (Conveyancing) 
 
 PAGE 
 
 . .339 
 299, 308, 355 
 339 
 339 
 356 
 131 
 339 
 169 
 376 
 339 
 349, 350, 351 
 . 355 
 . 280 
 55, 352 
 189, 307, 351 
 179, 243, 254 
 214 
 2.50 
 251 
 219 
 370 
 288 
 338 
 284 
 389 
 103, 241, 270 
 288 
 339 
 339 
 339 
 339 
 339 
 339 
 339 
 339 
 280 
 261, 348, 351 
 284 
 3.39 
 309 
 357 
 i79-281 
 284 
 357 
 376 
 284 
 201, 205 
 313 
 310 
 280 
 2.53, 254
 
 XXIV 
 
 TABLE OF STATUTES 
 
 
 
 
 
 
 PAGE 
 
 1844 
 
 7 &8 Vict. c. 85 (Railways) 289 
 
 
 c. 110 (Companies) . 
 
 
 
 289 
 
 
 c. Ill (Companies) . 
 
 
 
 . 289 
 
 
 c. 113 (Banks) 
 
 
 
 289 
 
 1845 
 
 8 & 9 Vict. c. 10 (Companies Clavises) 
 c. 20 (Railways Clauses) 
 c. 93 (Copyright) . 
 
 
 
 . 289 
 
 . 289 
 . 2S1 
 
 
 c. 101) (Real Property) . 
 
 103, 
 
 108, 1 
 
 22, 241, 253 
 
 
 c. 110 (Merchant Shipping) 
 
 
 
 . 294 
 
 
 c. 118 (Inclosures) . 
 
 
 
 . 264 
 
 1846 
 
 9 & 10 Vict. c. 62 (I)eodands) .... 
 c. 93 (Fatal Accidents) . 
 c. 95 (County Courts Act) 
 
 
 
 . 181 
 . 307 
 . 358 
 
 1847 
 
 10 & 11 Vict. c. 95 (Colonial Copyright) 
 0. 102 (Bankruptcy) 
 
 
 
 . 281 
 . 376 
 
 1848 
 
 11 & 12 Vict. c. 42 (Indictable Offences) 
 
 c. 43 (Summary Jurisdiction) 
 c. 44 (Justices' Protection) 
 
 
 
 . 340 
 . 340 
 . 341 
 
 1849 
 
 12 & 13 Vict. c. 106 (Bankruptcy) 
 
 
 
 . . 377 
 
 1850 
 
 13 & 14 Vict. c. 16 (Rules of Court) 
 c. 35 (Chancery) 
 
 
 
 
 . 190 
 . 190 
 
 1851 
 
 14 & 15 Vict. c. 83 (Chancery) . 
 c. 99 (Evidence) . 
 
 
 
 
 . 214 
 343, 300 
 
 1852 
 
 15 & 16 Vict. c. 24 (Will) . 
 
 
 
 
 . 271 
 
 
 0. 73 (Common Law Courts) . 
 
 
 
 . 359 
 
 
 c. 76 (Common Law Procedure) . 
 
 
 ] 
 
 90, 242, 358 
 
 
 c. 80 (Chancery) . 
 
 
 
 . 361 
 
 
 c. 83 (Patents) 
 
 
 
 
 . 284 
 
 
 c. 86 (Chancery) 
 
 
 
 
 . 362 
 
 
 c. 87 (Chancery) 
 
 
 
 
 . 363 
 
 1853 
 
 16 & 17 Vict. c. 22 (Evidence) 
 c. 78 (Oaths) . 
 c. 83 (Evidence) . 
 c. 98 (Chancery) . 
 c. 99 (Penal Servitude) 
 
 
 
 
 . 363 
 
 . 363 
 . 344 
 
 . 363 
 . 338 
 
 1855 
 
 17 & 18 Vict. c. 36 (Bills of Sale; 
 c. 113 (Mortgage) . 
 
 
 
 
 . 272 
 . 252 
 
 
 c. 120 (Merchant Shipping) . 
 
 
 
 294 
 
 
 c. 12-') (Common Law Procedure) 
 
 
 
 190, 360 
 
 1855 
 
 18 & 19 Vict. c. 41 (Church Courts) . 
 
 c. 43 (Infants' Settlements) . 
 
 
 
 145, 311 
 
 . 3;)4 
 
 1856 
 
 19 & 20 Vict. c. 47 (Companies) .... 
 c. 69 (Police) .... 
 c. 94 (Intestacy) 
 
 c. 97 (Mercantile Law Amendment 
 c. 120 (Settled Estates) . 
 
 ) 
 
 
 . 290 
 . 3)9 
 . 269 
 
 . 2;.9 
 
 244, 245 
 
 1857 
 
 20 & 21 Vict. c. 3 (Penal Servitude) . 
 c. 14 (Companies) . 
 
 
 
 . 338 
 
 . 2;n 
 
 1858 
 
 21 & 22 Vict. c. 27 (Chancery) . 
 c. 91 (Banks) 
 
 
 
 190, 3;)3 
 291 
 
 1859 
 
 22 & 23 Vict. c. 35 (Law of Property 1 
 
 ^mendmen 
 
 t) 
 
 
 242, 251
 
 TABLE OF STATUTES 
 
 XXV 
 
 1860 
 
 23 & 24 Vict. c. 126 (Common Law Procedure) . 
 
 PAGE 
 
 . 361 
 
 
 c. 145 (Powers of Mortgagees) 
 
 . 249 
 
 1861 
 
 24 & 25 Vict. c. 96 (Larceny) 
 
 . 341 
 
 
 c. 97 (Malicious Damage) .... 
 
 . 341 
 
 
 c. 98 (Forgery) 
 
 . 341 
 
 
 c. 99 (Coinage Offences) .... 
 
 . 341 
 
 
 c. 100 (Offences against the Person) 
 
 322, 341 
 
 
 c. 114 (Wills) 
 
 . 271 
 
 
 c. 121 (Domicile) 
 
 . 271 
 
 
 c. 134 (Bankruptcy) 
 
 . 877 
 
 1862 
 
 25 & 26 Vict. c. 53 (Land Registry) 
 
 . 257 
 
 
 c. 67 (Declaration of Title) .... 
 
 . 257 
 
 
 c. 89 (Comxjanies) 
 
 . 290 
 
 1864 
 
 27 & 28 Vict. c. 112 (Judgments) 
 
 250, 261 
 
 
 c. 114 (Improvement of Land) 
 
 . 246 
 
 1865 
 
 28 & 29 Vict. c. 18 (Criminal Procedure) .... 
 
 . 342 
 
 
 c. 72 (Wills of Seamen) .... 
 
 . 270 
 
 
 c. 78 (Mortgage Debentures) .... 
 
 . 291 
 
 1866 
 
 29 & 30 Vict. c. 122 (Metropolitan Commons) . 
 
 . 264 
 
 1867 
 
 30 & 31 Vict. c. 8 (Trade Unions) 
 
 . 321 
 
 
 c. 35 (Criminal Law Amendment) 
 
 . 340 
 
 
 c. 69 (Mortgages) 
 
 . 252 
 
 
 c. 74 (Trade Unions) 
 
 . 321 
 
 
 c. 141 (Master and Servant) . . . 321, 
 
 322, 323 
 
 1868 
 
 31 & 32 Vict. c. 24 (Capital Punishment) .... 
 
 . 342 
 
 
 c. 71 (County Courts Admiralty Jurisdiction) 
 
 . 373 
 
 1869 
 
 32 & 33 Vict. c. 46 (Debts) 
 
 231, 250 
 
 
 c. 61 (Trade Unions) 
 
 . 322 
 
 
 c. 62 (Debtors) 
 
 . 348 
 
 
 c. 68 (Evidence) 
 
 . 304 
 
 
 c. 71 (Bankruptcy) .... 272, 
 
 377, 378 
 
 1870 
 
 33 & 34 Vict. c. 20 (Mortgages) 
 
 . 291 
 
 
 c. 23 (Forfeiture) ...... 
 
 . 343 
 
 
 c. 93 (Married Women's Property) 
 
 . 305 
 
 1871 
 
 34 & 35 Vict. c. 31 (Trade Unions) . . . 322, 328, 
 
 329, 330 
 
 
 c. 32 (Criminal Law) 
 
 . 330 
 
 1873 
 
 36 & 37 Vict. c. 60 (Judicature) . 190, 199, 275, 297, 365-7 
 
 1, 373-80 
 
 1874 
 
 27 & 38 Vict. c. 50 (Married Women's Property) 
 
 306 
 
 
 c. 57 (Limitation) 
 
 . 354 
 
 
 c. 62 (Infants' Relief) 
 
 . 304 
 
 
 c. 78 (Vendor and Purchaser) 
 
 216, 255 
 
 
 c. 83 (Judicature) 
 
 . 366 
 
 1875 
 
 38 & 39 Vict. c. 77 (Judicature) 190 
 
 365-371 
 
 
 c. 86 (Conspiracy and Protection of Property) 
 
 321, 330 
 
 
 c. 87 (Land Transfer) . , . .216, 
 
 258, 259 
 
 
 c. 91 (Trade Marks) 
 
 . 285 
 
 1876 
 
 39 & 40 Vict. c. 22 (Trade Unions) 
 
 . . 328 
 
 
 c. 56 (Commons) 
 
 . 264 
 
 
 c. 59 (Appellate Jurisdiction) 
 
 190, 367 
 
 1877 
 
 40 & 41 Vict. c. 18 (Settled Estates) 
 
 . 246 
 
 
 c. 25 (Solicitors) 
 
 . 205
 
 XXVI 
 
 TABLE OF STATUTES 
 
 1877 
 
 40 & 41 Vict. 
 
 c. 
 
 33 
 
 Contingent Remainders) 
 
 
 
 c. 
 
 34 
 
 (Mortgaiies) .... 
 
 1878 
 
 41 & 42 Vict 
 
 c 
 
 31 
 
 (Bills'^of Sale) 
 
 1879 
 
 42 & 43 Vict 
 
 c 
 
 22 
 
 (Public Prosecutor) 
 
 
 
 c. 
 
 49 
 
 Sununary Jurisdiction) 
 
 
 
 c. 
 
 50 
 
 ^Civil Procedure Acts Repeal) 
 
 1880 
 
 43 & 44 Vict. 
 
 c. 
 
 42 ( 
 
 Employers' Liability) . 
 
 1881 
 
 44 & 45 Vict. 
 
 c. 
 
 41 
 
 Conveyancing) 
 
 
 
 0. 
 
 60 ( 
 
 Xevv.spaper Libels) 
 
 
 
 c. 
 
 68 ( 
 
 Judicature) .... 
 
 1882 
 
 45 & 40 Vict. 
 
 c. 
 
 38 
 
 [Settled Land) 
 
 
 
 c. 
 
 4.3 ( 
 
 Bills of Sale) 
 
 
 
 c. 
 
 To ( 
 
 Married Women's Property) 
 
 1883 
 
 46 & 47 Vict 
 
 c. 
 
 52 
 
 (Bankruptcy) . . 272 
 
 
 
 c. 
 
 57 
 
 Patents) .... 
 
 1884 
 
 47 & 48 Vict. 
 
 c. 
 
 54 
 
 Yorkshire Registries) . 
 
 
 
 c. 
 
 71 ( 
 
 Intestates Estates) 
 
 1885 
 
 48 & 49 Vict. 
 
 c. 
 
 63 
 
 Patents) .... 
 
 1886 
 
 49 & 50 Vict 
 
 c 
 
 33 
 
 International Copyright) 
 
 
 
 c 
 
 37 
 
 ^Patents) .... 
 
 1888 
 
 51 & 52 Vict. 
 
 c. 
 
 43 
 
 County Courts) 
 
 
 
 c. 
 
 50 
 
 Patents) .... 
 
 
 
 c. 
 
 51 
 
 Land Charges) 
 
 
 
 c. 
 
 59 
 
 Limitation) . . , . 
 
 
 
 c. 
 
 64 ( 
 
 Law of Libel Amendment) . 
 
 
 
 c. 
 
 65 ( 
 
 Solicitors) .... 
 
 1890 
 
 53 & 54 Vict. 
 
 c. 
 
 20 ( 
 
 Intestacy) .... 
 
 
 
 c. 
 
 62 ( 
 
 Company Formation) . 
 
 
 
 c. 
 
 63 ( 
 
 Winding Up) 
 
 
 
 c. 
 
 64 
 
 Directors' Liability) 
 
 
 
 c. 
 
 69 ( 
 
 Settled Land) 
 
 
 
 c. 
 
 70 ( 
 
 Housing of Working Classes) 
 
 
 
 c. 
 
 71 ( 
 
 Bankruptcy) 
 
 1891 
 
 54 & 55 Vict. 
 
 c. 
 
 51 
 
 Slander of Women) 
 
 
 
 c. 
 
 64 ( 
 
 Middlesex Registry) 
 
 1892 
 
 55 & 56 Vict. 
 
 c. 
 
 13 
 
 Conveyancing) . . 
 
 1893 
 
 56 & 57 Vict. 
 
 c. 
 
 53 
 
 [Trustees) .... 
 
 
 
 c. 
 
 57 
 
 Law of Commons Amendment) 
 
 
 
 c. 
 
 63 ( 
 
 Married Women's Property) 
 
 
 
 c. 
 
 66 ( 
 
 Rules Publication) 
 
 
 
 c. 
 
 71 ( 
 
 Sale of Goods) 
 
 1894 
 
 57 & 58 Vict. 
 
 c. 
 
 60 ( 
 
 Merchant Shipping) 
 
 1897 
 
 60 & 61 Vict. 
 
 c. 
 
 37 
 
 Workmen's Compensation) . 
 
 
 
 c. 
 
 65 ( 
 
 Land Transfer) . . 17( 
 
 1808 
 
 6l'& 62 Vict. 
 
 c. 
 
 36 ( 
 
 Witnes.ses) .... 
 
 1809 
 
 62 & 63 Vict 
 
 c 
 
 30 
 
 Commons) .... 
 
 1900 
 
 63 & 64 Vict. 
 
 c. 
 
 22 
 
 Workmen's Compensation) . 
 
 
 
 c. 
 
 26 
 
 Land Charges) 
 
 
 
 c. 
 
 48 
 
 Companies) .... 
 
 1903 
 
 3 Edw. VII, 
 
 c. 
 
 38 
 
 [Poor Prisoners' Defence) 
 
 
 
 c. 
 
 42 
 
 (County Courts) . 
 
 J73, 
 
 PAGE 
 
 . 253 
 . 252 
 273, 274 
 . 343 
 . 341 
 . 351 
 . 319 
 216, 226, 249, 255 
 . 310 
 190, 365 
 246, 248 
 . 273 
 . 306 
 378, 370 
 285, 280 
 256 
 131 
 285 
 280 
 285 
 372 
 285 
 261 
 354 
 310 
 205 
 269 
 201 
 201 
 291 
 248 
 247 
 378 
 310 
 256 
 243 
 220 
 265 
 305, 300- 
 188 
 2C0 
 204 
 330 
 >58-2(;0 
 343 
 2(i5 
 3::!0 
 2(il 
 201 
 344 
 
 226, 
 
 241, 
 
 250, •![
 
 TABLE OF STATUTES 
 
 XXVI 1 
 
 1905 
 1906 
 
 1907 
 
 5 Edw. VII, 
 
 6 Edw. VII, 
 
 7 Edw. VII, 
 
 1908 8 Edw. VII, 
 
 c. 
 c. 
 c. 
 c. 
 
 1909 9 Edw. VII, c. 
 
 c. 
 1911 1 & 2 Geo. V, c. 
 c. 
 c. 
 c. 
 
 c. 15 (Trade Marks) 
 
 c. 47 (Trade Disputes) . 
 
 c. 58 (Workmen's Compensation) . 
 
 c. 23 (Criminal Appeal) . 
 
 c. 28 (Patents) .... 
 
 c. 29 (Patents) .... 
 
 c. 15 (Costs in Criminal Cases) 
 
 28 (Agricultural Holdings) 
 
 40 (Old Age Pensions) 
 
 59 (Prevention of Crime) . 
 
 69 (Companies). 
 
 11 (Judicature (Rule Committee)) 
 
 49 (Insurance) .... 
 6 (Perjury) . . . 
 
 37 (Conveyancing) 
 
 46 (Copyright) .... 
 
 55 (National Insurance) 
 
 PAGE 
 
 . 285 
 327, 329 
 330 
 344 
 286 
 286 
 342 
 246 
 331 
 338 
 291 
 190 
 292 
 341 
 242 
 281 
 331
 
 TABLE OF CASES 
 
 Ackroyd v. Smithson (1780) 1 Bro. C.C. 503 
 
 A.-G. V. Hooker (1725) 2 P. Wms. 338 . 
 
 A.-G. V. Odell [1900] 2 Ch. 47 . 
 
 Allen V. Flood [1898] A. C. 1 . 
 
 Amalgamated Society v. Osborne [1910] A.C. 87 
 
 Anon. (1340) Y.B. (Record Series) 14 Edw. Ill, 104 
 
 Ano7i. Y.B. Ass. (1348) fo. 94, pi. 41 
 
 Anon. Y.B. 38 Edw. Ill (1364) fo. 26 
 
 Anon. Y.B. 43 Edw. Ill (1369) fo. 33, pi. 38 
 
 Anon. Y.B. 46 Edw. Ill (1372) fo. 19, pi. 19 
 
 Anon. Y.B. 48 Edw. Ill (1374) fo. 6, pi. 11 
 
 Anon. Y.B. 2 Hen. IV (1400) fo. 5, pi. 16 
 
 A7ion. Y.B. 9 Hen. VI (1431) ff. 23-25, pi. 19 
 
 Anon. Y.B. 14 Hen. VI (1435), fo. 18, pi. 58 
 
 Anon. Y.B. 19 Hen. VI (1440) fo. 56, pi. 19 
 
 Anon. Y.B. 19 Hen. VI (1441) fo. 49, pi. 5 
 
 Anon. Y.B. 20 Hen. VI (1442) fo. 34, pi. 4 
 
 Anon. Y.B. 33 Hen. VI (1454) p. 42, pi. 19 
 
 Anon. Y.B. 33 Hen. VI (1455) fo. 26, pi. 12 
 
 Anon. Y.B. 7 Edw. IV (1467) fo. 6, pi. 16 
 
 Anon. Y.B. 18 Edw. IV (1479) fo. 23, pi. 5 
 
 Ation. Y.B. 21 Edw. IV (1481) fo. 11, pi. 2 
 
 Anon. Y.B. 11 Hen. VII (1496) fo. 25, pi. 7 
 
 Anon. Y.B. 12 Hen. VII (1498) fo. 22, pi. 2 
 
 Anon. (1510) Keil. 160, pi. 2 . 
 
 Aiion. (1536) Dyer, 19a .... 
 
 Anon. (1567) Dyer, 264b .... 
 
 Anon. (;1584) 3 Leon. 119 , 
 
 Anon. (1675) 2 Freeni. Cha. 145 
 
 Anon. (1679) 2 Ch. Ca. 4 . 
 
 Archholdv. Scidly (1861) 9 H.L.C. 360 . 
 
 Ardierv. Morse (1686) 2 Vern. 8 
 
 Armitage v. Metcalf (1664) 1 Ch. Ca. 74 . 
 
 Ashhy V. White (1703) 2 Ld. Raym. 938 . 
 
 AsheomVs Case (1674) 1 Cha. Ca. 232 
 
 Asherv. Whitlock (1865) L.R. 1 Q.B. 1 . 
 
 Atkiris V. Daubeynj (1714) 1 Eq. Ca. Ab. 45 
 
 Atkins V. Hill (1775) Cowp., 287, 288 
 
 Awhry v. George (1600) Acta Cancellariae, 757-759 
 
 PAOB 
 
 232 
 131 
 259 
 326 
 330 
 
 88 
 137 
 
 85 
 137 
 137 
 137 
 162 
 
 86 
 138 
 174 
 137 
 138 
 174 
 142 
 174 
 141 
 174 
 143 
 145 
 141 
 145 
 227 
 135 
 296 
 231 
 354 
 230 
 231 
 312 
 296 
 354 
 296 
 229, 230 
 209, 229 
 
 Bacon's Will, Be (1881) 31 Ch.D. 460 . 
 Bain v. Fothenngill (1874) L.R. 7 H.L. 158 
 Bainbridge v. Firmstone (1838) 8 A. & E. 743 
 
 131 
 257 
 802
 
 XXX 
 
 TABLE OF CASES 
 
 Btrkerv. Tngall [1911^ 2 K.B.IS2 . 
 
 Banks v. Sutton (1732) 2 P. Wms. 700 . , . 
 
 Barker V. Kcat (1077) 2 Mod. 249 , 
 
 Barnesby v. Poicel (1748) 1 Ves. 119 
 
 Barrow v. Lleicellin (1616) Hob. 62 . 
 
 Bartonshill Coal Co. v. Beid (1858) 3 Macq. 326 
 
 Bates V. Dandy (1741) 2 Atk. 206 . 
 
 BattishiU v. Reed (1856) 18 C.B. 696 
 
 Bennet v. Davis (1725) 2 P. Wms. 315 
 
 Bertie v. Ld. Chesterfield (1723) 9 Mod. 31 
 
 Bevant v. Pope (1681) Freem. Cha. Ca. 43 
 
 Blackburn v. Graves (1675) 1 Mod. 102 . 
 
 Blades v. Higgs (1861) 10 C.B. (N.S.) 713 
 
 Blake v. Lanyon (1795) 6 T.R. 221 . 
 
 Bodmin V. Vandependy (1685) 1 Vern. 356; Shower, P.C. 
 
 Bothamley v. Sherson (1875) L.R. 20 Eq. 304 . 
 
 Bourne v. Dodson (1740) 1 Atk. 153. 
 
 Boxoen v. Hall (1881) 6 Q.B.D. 333 . 
 
 Bradley v. Carritt [1903] A.C. 253 . 
 
 Brandt v. Dunlop [1905] A.C. 454 . 
 
 Browne v. Bicards (1600) Acta Cancellariae, 761 
 
 Bruce, Be [1905] 2 Ch. 372 ... . 
 
 Bryant v. Herbert (1878) 3 C.P.D. 389 . 
 
 Burgess v. Burgess (1853) 3 De G. M. & G. 896 
 
 Burgess v. Wheate (1759) 1 Ed. 177 . 
 
 Burgh v. Francis (1670) 1 Eq. Ca. Ab. 321 
 
 Burke v. Amalgamated Society [1906] 2 K.B. 583 
 
 Butcher V. Stapley (1685) 1 Vern. 364 
 
 Butler's and Baker's Case (1591) 3 Rep., at 26b 
 
 Cadell V. Palmer (1833) 1 CI. & F. 372 . 
 
 Capital and Counties Bank v. Bhodes [1903] 1 Ch. 631 
 
 Cartaret v. Paschal (1733) 3 P. Wms. 198 
 
 Casborne v. Scarfe (1737) 1 Atk. 603 
 
 Case of Scandalous Libels (1605) 5 Rep. 124b . 
 
 Chancpy's Case (1717) 1 P. Wms. 408 
 
 Chandos {D. of) v. Talbot (1731) 2 P. Wms. 600 
 
 Chaplin v. Chaplin (1733) 3 P. Wms. 229 
 
 Charnock v. Court [1899] 2 Ch. 35 . 
 
 Cleymond v. Vincent (1520) Y.B. 12 Ken. VIII, fo. 11, pi. 
 
 Clifton V. Burt (1720) 1 P. Wms. 679 
 
 Coggs V. Bernard (1703) 2 Ld. Raym. 909 
 
 Cohen v. Mitchell (1890) 15 Q.B.D. 262 . 
 
 Cohen v. Tannar [1900] 2 Ch. 609 . 
 
 Coles V. Jones (1715) 2 Vern. 692 . 
 
 Cnllis V. Bate (1846) 4 Thornton, Notes of Cases, 540 
 
 Colls V. Home and Colonial Stores [1904] A.C. 179 
 
 Colthirst V. Bejushin (1550) Plowd. 21 . . , 
 
 Corbet's Case (1599) 1 Rep., at 87b . 
 
 Cork V. Baker (1725) 1 Stra. 34 ... . 
 
 Cornwall's Case (1683) 2 Ventr. 38 . 
 
 69 
 
 PAGE 
 
 330 
 220 
 121 
 230 
 147 
 318 
 297 
 144 
 219, 223 
 224 
 219 
 220 
 274 
 325 
 220 
 252 
 271 
 325 
 216 
 297 
 229 
 248 
 132 
 284 
 31, 219, 220 
 219 
 330 
 217 
 272 
 
 225 
 260 
 296 
 220 
 146 
 23,3 
 296 
 220 
 329 
 140 
 231 
 134, 302 
 379 
 242 
 296 
 311 
 95 
 86 
 122 
 303 
 219
 
 TABLE OF CASES 
 
 XXXI 
 
 Cotton V. Cotton (1G93) 2 Vern. 290 . 
 
 Conrtman v. Conyers (1600) Acta Cancellariae, 764 
 
 Croft V. Day (1844) 7 Beav. 43 . ' . 
 
 Croystonv. Banes (1702) Pre. Cha. 203 
 
 Cud V. Butter (1719) 1 P. Wms. 569 
 
 Cuenod v. Leslie [1909] 1 K.B. 880 . 
 
 D'Arcy v. Blake (1805) 2 Sch. & Lef. 389 
 Darcy v. Chute (1663) 1 Ch. Ca. 21 . 
 Davis V. Matthews (1655) Styles 455 . 
 Deeks v. Strutt (1794) 5 T.R. 090 . 
 Derry v. Peek (1889) L.R. 14 App. Ca. 337 
 Dickison v. Holcroft (1674) 3 Keb. 148 
 Doctor LeyfiekVs Case (1611) 10 Rep. 8 
 Donaldson v. Beckett (1764) 2 Bro. P.C. 136 
 Dudley v. Dudley (1705) Pre. Cha. 241 
 Du Pasquier v. Cadhury [1903] 1 K.B. 104 
 Dyer v. Dyer (1788) Cox, 92 . 
 Dyson v. Forster [1909] A.C. 98 
 
 Eales V. England (1702) Pre. Cha. 200 
 
 Eare v. Snoio (1578) Plowd. 504 
 
 Earl V. Kingscote [1900] 2 Ch. 585 . 
 
 Edimrd Seymor's Case (1613) 10 Rep. 95b 
 
 Edwardes v. Wootton (1607) Hawarde's Cases in the 
 
 (ed. Baildon), 343 
 Edwards v. Carter [1893] A.C. 360 . 
 Edwards v. Countess of Warwick (1723) 2 P. Wms. 171 
 Edwin V. Tliomas (1687)1 Vern. 489 
 EUenborough, Re [1903] 1 Ch. 699 . 
 Ellison V. Ellison (1802) 6 Ves. 656 . 
 Eloe V. Boyton [1891] 1 Ch. 501 
 Entick V. Carrington (1765) 19 St. Tr. 1030 
 Ethel, Be [1901] 1 Ch. 945 ... 
 
 Evelyn v. Evelyn (1728) 2 P. Wms. 659 . 
 
 Fashion v. Atwood (1680) 2 Cha. Ca. 6, 38 
 Fielding v. Morley (Corpn) [1899] 1 Ch. 1 
 Finch V. E. of Winchilsea (1715) 1 P. Wms. 2 
 Five Knights' Case (1627) 3 St. Tr. 1 
 Franklin v. Neate (1844) 13 M.& W. 481 . 
 
 Gawin Butler's Case, 20 Edw. I (1291) St. II 
 
 Geary v. Bearcroft (1666) Cart. 67 . 
 
 Giblan v. National Labourer's Union [1903] 2 K.B. 600 
 
 Gill V. Harewood (1587) 1 Leon. 61 . 
 
 Glamorgan Coal Co. v. 8. W. Miners [1905] A.C. 239 
 
 Gorge v. Chansey (1639) 1 Rep. in Cha. 6 
 
 Goss V. Tracy (1715) IP. Wms. 287 
 
 Gozney v. Bristol &c. Society [1909] 1 K.B. 901 
 
 Gregory v. D. of Brunsidck (1843) 6 M. & G. 205, 953 
 
 Star 
 
 PAGE 
 
 223 
 215 
 285 
 217 
 217 
 306 
 
 220 
 223 
 
 207 
 229 
 217, 291, 309 
 303 
 163 
 276, 279 
 220 
 132 
 221 
 255 
 
 218 
 114 
 
 306 
 121 
 Chamber 
 
 146 
 304 
 217 
 220 
 242 
 297 
 287 
 235, 335 
 255 
 252 
 
 295 
 187 
 219 
 334 
 274 
 
 91 
 
 218 
 326, 327 
 140 
 326 
 222, 223, 295 
 230 
 330
 
 XXXll 
 
 TABLE OF CASES 
 
 Man-is v. Buller (1798) 1 Ilagg. 4r).';n. 
 
 Harris v. Harris (1681) 1 Vein. 33 . 
 
 Harrison v. Cage (1698) 1 Ld. Raym. 386 
 
 Hartopp's and CocWs Case (1627) Ilutt. 88 
 
 Haiokes V. iS'aiinders (1775) Cowii. 289 
 
 Haymer v. Haijmer (1678) 2 Vent. 343 
 
 Heath v. Heath (1781) 1 Bro. C.C. 147 
 
 Hedicorth V.' Frimate (1662) Hardres, 318 
 
 Heme v. Heme (1706) 2 Vern. 555 . 
 
 Heydon's Case (1584) 3 Rep. 18 
 
 Heyvxird's Case (1595) 2 Rep. 35a . 
 
 Hicks' Case (1619) Hob. 215 . 
 
 Hoadly v. McLaine (1834) 10 Bing. 482 
 
 Holt V. Ward (1732) 2 Stra. 937 
 
 Home and Colonial Stores v. Colls [1904] A.C. 179 
 
 Hopkins v. Hopkins (1738) 3 Atk. 581 
 
 Horam v. Humfreys (1771) Lofft, 80 
 
 HoweWs Case (1588) 1 Leon. 71 
 
 Hulbert v. Dale (1909) 78 L.J. Ch. 457 
 
 Hulme V. Tenant (1778) Bro. C.C. 16 
 
 Hunt V. Bishop (1853) 8 Exch. 675 . 
 
 Himt V. Bourne (1703) 1 Salk. 339 . 
 
 Hurst V. Goddard (1670) 1 Cha. Ca. 109 
 
 Hutchinson v. York &c. By. (1850) 5 Exch. 351 
 
 Hyman v. Van den Bergh [1908] 1 Ch. 107 
 
 Hynde's Case (1591) 4 Rep. 70b 
 
 Income Tax Commrs. v. Pemsel [1891] A.C. 531 
 
 Jackson v. Hobhouse (1817) 2 Mer. 483 . 
 Jacobson v. Williams (1717) 2 P. Wms. 382 . 
 Jee V. Audley (1787) 1 Cox, 324 
 JemmetVs and Griesfs Contract [1907] 1 Ch. 629 
 Jenks' Case (1676) 6 St. Tr. 1189-1208 . 
 Jenks V. Holford (1682) 1 Vern. 61 . 
 Jocelynv. Skclton (1558) Benloe, 57 
 Jones V. Powell (1712) 1 Eq. Ca. Ab. 84 . 
 Joseph V. Lyons (1884) 15 Q.B.D. 280 
 
 Keech v. Sandford (1726) 2 Eq. Ca. Ab. 741 . 
 Jukeicich v. Manning (1851) 1 De G. M. & G. 176 
 Kerrich v. Bransby (1727) 7 Bro. P.C. 437 
 KHtleby v. Aticood (1684) 1 Vern. 298 
 Keyhoay v. Kcylway (1726) 2 P. Wms. 344 
 King v. Melling (1073) 2 Lev. 58 . . . 
 Knights v. Atkyns (1686) 2 Vern. 20 
 Kynaston v. Moore (1627) Cro. Car. 89 . 
 
 Lake\<t Case (1619) Calendar of State Papers (Dom 
 
 Lake V. Hittton (^^>^8) Uoh. •2'y2 
 
 Lake V. King (1668) 1 AVnis. Saund. ]3]b 
 
 )m. 
 
 19, 
 
 21 
 
 PAGE 
 311 
 
 215 
 303 
 93 
 229 
 223 
 225 
 210 
 
 233, 234 
 240 
 
 121, 122 
 147 
 300 
 305 
 356 
 100 
 303 
 334 
 356 
 
 224, 305 
 242 
 116 
 295 
 318 
 356 
 121 
 
 187 
 
 225 
 224 
 225 
 248 
 335 
 229 
 140 
 217 
 368 
 
 221, 236 
 297 
 230 
 232 
 268 
 114 
 232 
 141 
 
 146 
 
 147 
 147
 
 TABLE OF CASES 
 
 XXXlll 
 
 LampeVs Case (1612) 10 Rep. 46b , 
 Lane v. Capsey [1891] 3 Ch. 411 .. . 
 Leach v. Honey (1765) 19 St. Tr. 1001 
 Lechmere v. Lechmere (1735) Ca. temp. Talb. 80 
 Lingen v. Savray (1711) 1 P. Wins. 172 . 
 Llewellyn, Be [1911] 1 Ch. 451 
 Lloyd V. Spillet (1740) 2 Atk. 148 . 
 Luinley v. Gye (1853) 2 E. & B. 224 . 
 Lutwich V. Milton (1620) Cro. Jac. 604 . 
 Lyons v. Wilkins [1899] 1 Ch. 255 . 
 
 Macclesfield's (E. of) Case (1725) 16 St. Tr. 1388-1390 
 
 Manders v. Williams (1849) 18 L.J. Ch. 437 
 
 Mansell v. Mansell (1732) P. Wms. 678 
 
 Marais, Ex parte D.F. [1902] A.C. 109 
 
 March v. Lee (1070) 2 Ventr. 337 
 
 Harlow v. Pitfield (1719) 1 P. Wms. 558 
 
 Marriott v. Marriott (1725) 1 Stra. 666 
 
 3Iartin v. Bure (1002) Cro. Jac. 6 . 
 
 Maskell & Goldfinch's Contract [1895] 2 Ch. 525 
 
 Matthewman's Case (1866) L.R. 3 Eq. 781 
 
 Maxwell v. 3Iountacute (1719) Pre. Cha. 526 . 
 
 Mayor of Faversham v. Parke (1574) Acta Cancellariae, 410 
 
 Mercer v. Denne [1905] 2 Ch., at p. 586 . 
 
 3Iidd1eton v. Crofts (1726) 2 Atk. 650 
 
 Millington v. Fox (1838) 3 M. & Cr. 338 . 
 
 Mitchell V. Fades (1700) Pre. Cha. 125 . 
 
 Mogul Steamship Co. v. 31' Greg or [1892] A.C. 25 
 
 Morrice v. B. of England (1736) Ca. temp. Talb. 21' 
 
 Moses V. 3Iacferlan (1700) 2 Burr. 1005 . 
 
 3Iurray v. Barlee (1834) 3 My. & K. 209 . 
 
 National Phonograpth Co. v. Ball [1908] 1 Ch. 335 
 
 Nevil V. Saunders (1636) 1 Vern. 415 
 
 New Land Development Assocji. v. Gray [1892] 2 Ch. 1.38 
 
 Neiv Zealand Loan &c. Co. v. 3Iorrison [1898] A.C, at p. 357 
 
 Nicholas v. Nicholas (1720) Pre Cha. 546 
 
 Nicholson v. Sharman (1661) 1 Sid. 45 
 
 Noakes v. Bice [1902] A.C. 24 
 
 Noel V. Jevon (1678) Freem. Cha. Ca. 43 
 
 Noel V. Bobinson (1682) 1 Vern. 93 . 
 
 Norton v. Turvil (1723) 2 P. Wms. 144 . 
 
 Norwood V. Bead (1557) Plowd. 180 
 
 Noys V. 3Iordaunt (1706) 2 Vern. 581 
 
 Packer V. Wyndham (1715) Pre. Cha. 412 
 Palliserv. Gurney (1887) 19 Q.B.D. 519 . 
 Paquin v. Beauclerk [1906] A.C. 148 
 Parmiter v. Co^ipland (1838) 6 M. & W. 105 
 Parsons v. Freeman (1751) Ambl. 115 
 Paschall v. Eeterich (1557) Dyer, 151b 
 
 PAGE 
 
 294 
 144 
 235, 335 
 2.33 
 232 
 248 
 221 
 332 
 122 
 329 
 
 77 
 274 
 253 
 335 
 216 
 305 
 230 
 127 
 255 
 305 
 217 
 227 
 355 
 196 
 284 
 295 
 321, 326, 327 
 229 
 235 
 305 
 
 325 
 100 
 378 
 281 
 224, 229 
 130, 228 
 216 
 219 
 229 
 224 
 140 
 234 
 
 223 
 306 
 306 
 309 
 2.52 
 227, 229
 
 XXXIV 
 
 TABLE OF CASES 
 
 Pasley v. Freeman (1789) 3 T.R. 51 
 
 Pawlett V. A.-G. (1667) Hardres, 465 
 
 Peacock v. Monk (1750) 2 Ves. Sr. 190 
 
 Percival v. Wright [1902] 2 Ch. 421 
 
 Perry v. Clissold [1907] A.C. 73 
 
 Peske V. Bedman (1555) Dyer, 113 . 
 
 Peters v. Soame (1701) 2 Vern. 438 . 
 
 PJlilips V. D. of Bucks (1683) 1 Vern. 227 
 
 Pilcher v. Bawlins (1872) L.R. 2 Ch. App. 260 
 
 Pinchon's Case (1611) 9 Rep. 86b . 
 
 Pledge V. White [1896] A.C. 197 
 
 Plunket V. Holmes (1661) 1 Lev. 11 . 
 
 Pollock, Be [1906] 1 Ch. 146 . 
 
 Ponder v. Braddell (1079) Lilly, Modern Entries, 6 
 
 Pope V. Curl (1741) 2 Atk. 342 
 
 Pope V. Onsloio (1692) 2 Vern. 286 . 
 
 Priestley v. Fowler (1837) 3 M. & W. 1 
 
 Pusey V. Pusey (1684) 1 Vern. 273 . 
 
 Pybus V. Smith (1791;) 3 Bro. C.C. 340 
 
 Quinn v. Leathern [1901] A.C. 495 . 
 
 B. V. Bunn (1872) 12 Cox, Cr. Ca. 316 
 
 B. V. Duffield (1851) 5 Cox, Cr. Ca. 431 
 
 B. V. Jackson [1891] 1 Q.B. 671 
 
 B. V. Bowlands (1851) 5 Cox, Cr. Ca. 462 
 
 B. V. Selsby (1847) 5 Cox, Cr. Ca. 495 
 
 B. V. Thornton (1819) 1 B. & Aid. 405 
 
 B. V. Turner (1811) 15 East, 228 
 
 B. V. West Biding CC. [1906] 2 K.B. 67( 
 
 Badford v. Harhyn (1606) Cro. Jac. 122 
 
 Beard v. Stanford (1735) Ca. temp. Talb. 173 
 
 Bedgrave v. Hurd (1881) 20 Ch.D. 1 
 
 Beed v. Operative Stonemasons [1902] 2 K.B. 732 
 
 Bichardsv. Bertram (1909) 25 T.L.R. 181 
 
 Bichardson, Be [1904] 2 Ch. 777 
 
 Bohinson v. Bell (1690) 2 Vern. 146 . 
 
 Bogers v. Kennay (1846) 15 L.J. Q.B. 381 
 
 Bollasonv. Bollason (1887) 34 Ch.D. 495 
 
 Bussell V. Amalgamated Society [1911] 1 K.B, 606 
 
 Bussell V. Come (1704) 2 Ld. Raym. 1031 
 
 Samson, Be [1906] 2 Ch. 584 . 
 
 Savile v. Boberts (1098) 1 Salk. 13 . 
 
 Sayers v. Collier (1884) 28 Ch.D. 103 
 
 Scott V. Morley (1887) 20 Q.B.D. 120 
 
 Scriven v. Tapley (1764) Ambl. 509 . 
 
 Search's Case (1588) 1 Leon. 70 
 
 Seroka v. Kattenhurg (1886) 17 Q.B.D. 177 
 
 Sovenoaks By. Co. v. L. C. & D. Co. (1879) 11 Ch.D. 625 
 
 Shuttleworth v. Laycock (1684) 1 Vern. 244 
 
 308 
 219 
 224 
 236 
 354 
 140 
 296 
 217 
 368 
 140 
 216 
 114 
 248 
 278 
 279 
 216 
 318 
 209 
 225 
 
 327 
 
 323 
 320 
 324 
 
 320, 324 
 319 
 
 43, 156 
 320 
 187 
 163 
 222 
 217 
 326 
 329 
 247 
 229 
 274 
 274 
 330 
 324 
 
 227 
 143 
 363 
 306 
 224 
 334 
 306 
 328 
 216
 
 TABLE OF CASES 
 
 XXXV 
 
 FAGB 
 
 Sir W. Pelham's Case (1590) 1 Rep. 8 114 
 
 Six Clerks, Ux parte the (1198) 3 Yes. [>89 212 
 
 Six Members' Case (1629) 3 St. Tr. 235 334 
 
 Skapholme v. Hart, Ca. temp. Finch, 477 217 
 
 Skinner V. Gunton {IQQ9) \"Wms. ^axmi. 228 .143 
 
 Slade's Case (1603) 4 Rep. 02b 140, 298, 308 
 
 Smith V. Baker (1737) 1 Atk. 385 240 
 
 Smith V. Johns (1611) Cro. Jac. 257 228 
 
 Smith V. Kerr [1900] 2 Ch. 511 ; [1902] 1 Ch. 774 203 
 
 Socket V. Wray (1793) 4 Bro. C.C. 483 225 
 
 Somerset {D. of) v. Cookson (1735) 3 P. Wms. 390 209 
 
 Somerton's Case, 11 Hen. VI (1433) fo. 18, pi. 10; fo. 24, pi. 1 ; fo. 55, 
 
 pi. 26 1.38 
 
 Southcote V. Venner (1601) 4 Rep. 83 ; Cro. Eliz. 815 .. . 301, 302 
 
 Stanley v. Leigh (1732) 2 P. Wms. 686 225 
 
 Stephens v. Sole (1736) (unreported) 271 
 
 Stephens V. Stephens (1736) Ca,. temp. T&Yb. 228 225 
 
 Stockdale v. Hansard (1839) 9 A. & E. 1 309 
 
 Strangeways, Be (1886) 34 Ch.D. 423 248 
 
 Streatfield v. Streatfield (1735) Ca. temp. Talb. 176 .... 234 
 
 Stuart V. Wilkins (1778) 1 Doug. 18 141, 308 
 
 Suffolk {E. of) V. Greenvil (1641) 3 Rep. Cha. 50 . . . . 295, 296 
 
 Sutton V. Sutton {\882) 22 C^i.Tt.bM 187 
 
 Sweeney v. Coote [1907] A.C. 221 327 
 
 Sweetapple v. Bindon (1705) 2 Vern. 536 • 220 
 
 Sicift V. Pannell (1883) 24 Ch.D. 210 273 
 
 Sykes v. Sykes (1824) 3 B. & C. 541 284 
 
 Sykes v. Walls (1674) 3 Keb. 382 (3) 141 
 
 Taff Vale Case (1900) 70 L.J.K.B. 905; [1901] 1 
 
 A.C. 426 
 
 Tailby v. Official Beceiver (1888) L.R. 13 
 Talbot V. D. of Shrewsbury (1714) Freem 
 Tnltarum's Case (1473) Y.B. 12 Edw. IV 
 Tanfield v. Davenport (1638) Toth. 114 
 Tempertonv. Bussell [1893] 1 Q.B. 715 
 Theobald v. Duffry (1724) 9 Mod. 102 
 Thomas v. Sylvester (1873) L.R. 8 Q.B. .368 
 Tooke V. Fitz-John (1657) Hardres, 96 
 Trustees & Executors Co. v. Short (1888) 
 Tubervil v. Stamp (1697) 1 Salk. 13 
 Tullett V. Armstrong (1838) 1 Beav. 1 
 Tweddle v. Atkinson (1861) 1 B. & S. 393 
 Twyne's Case (1601) 3 Rep. 80 
 TyrreVs Case (1557) Dyer, 155 
 
 Vane v. Lord Barnard (1716) 2 Vern. 738 
 Vaughan v. Vanderstegen (1853) 2 Drew. 165 
 
 Wagioorth v. Halyday (1355) Y.B. 29 Edw. Ill, fo. 38 
 Wain V. Warlters (1804) 5 East, 10 . 
 
 App. Ca. 523 
 Cha. Ca. 394 
 fo. 19, pi 
 
 L.R. 13 App. Ca
 
 XXXVl 
 
 TABLE OF CASES 
 
 Walter v. Everard [1891] 2 Q.B. 369 
 Walter v. Yalden [1902] 2 K.B. 304 
 Walters v. Green [1899] 2 Ch. 096 . 
 Waricick v. Bruce (1813) 2 M. & S. 205 . 
 Wason V. Walter (1868) L.R. 4 Q.B. 73 . 
 Watts V. Ball (1709) 1 P. Wms. 108 
 Whitmores v. Stanford [1909] 1 Ch. 427 . 
 Wichals V. Johns (1599) Cro. Eliz. 703 . 
 Wilkes V. Wood (1763) 19 St. Tr. 1153 . 
 Wilson V. Merry (1868) L.R. 1 H.L. (Sc.) ; 
 Windham v. Clere (1589) Cro. Eliz. 130 . 
 Winsmore v. Oreenhank (1745) Willes, 547 
 Wright v. Black (1682) 1 Vern. 106 
 
 126 
 
 PAGE 
 
 . 304 
 
 . 354 
 
 . 329 
 
 . 304 
 
 . 309 
 
 . 220 
 
 . 356 
 
 . 140 
 235, 335 
 
 . 318 
 
 . 143 
 
 . 324 
 
 . 229 
 
 Young v. Peaduj (1741) 2 Atk. 254 
 
 221
 
 ABBREVIATIONS 
 
 A.S.L. 
 
 H.L.R. 
 L.Q.R.] 
 P. &M. 
 
 S.S. 
 
 "Anglo-Saxon Laws," including both the German versions of 
 Liebermann and Schmidt (Gesetze der Angelsachsen) and 
 Thorpe's Ancie7it Laws and Institutes of England (Record 
 Series) . 
 
 Harvard Law Beview. 
 
 Laio Quarterly Beview. 
 
 Pollock, Sir F., and Maitland, F. W. The History of English Law 
 Before the Time of Edward /, 2d edn. (Cambridge Uni- 
 versity Press, 1898, 2 vols.). 
 
 Publications of the Selden Society (London, Quaritch, 1887). 
 
 
 REPORTERS 
 
 
 A.C. . 
 
 . (Law Reports) Appeal 
 
 Cro. Car. 
 
 ) 
 
 
 Cases. 
 
 Cro. Eliz. 
 
 \ Croke. 
 
 A. &. E. 
 
 . Adolphus and Ellis. 
 
 Cro. Jac. 
 
 i 
 
 Ambl. . 
 
 . Ambler. 
 
 
 
 Atk. . 
 
 . Atkyns. 
 
 De G. M. 
 
 \ De Gex, Macnaghten, 
 J and Gordon. 
 
 
 
 & G. 
 
 B. & Aid. 
 
 . Barnewall and Alderson. 
 
 Doug. . 
 
 Douglas. 
 
 B. &C. 
 
 . Barne wall and Cresswell. 
 
 Drew. . 
 
 Drewry. 
 
 B. &S. 
 
 . Best and Smith. 
 
 
 
 Beav. . 
 
 . Beavan. 
 
 E. &B. 
 
 Ellis and Blackburn. 
 
 Bing. . 
 
 . Bingham. 
 
 Ed. . . 
 
 Eden. 
 
 Bro. C.C. 
 
 . Brown's Chancery Cases. 
 
 Eq. Ca. Ab 
 
 . Equity Cases Abridged. 
 
 Bro. P.C. 
 
 . Brown's Cases in Par- 
 
 Eq. . . 
 
 (Law Reports) Equity. 
 
 
 liament. 
 
 Exch. . 
 
 Welsby, Hurlstone, and 
 
 Burr. , 
 
 . Burrow. 
 
 
 Gordon. 
 
 C.B. . 
 
 . Common Bench. 
 
 Freem. 
 
 "1 Freeman's Chancery 
 J Cases. 
 
 C.B. (N.S 
 
 ) Common Bench (New 
 
 Cha.Ca. 
 
 
 Series) . 
 
 
 
 Cart. . 
 
 . Carthew. 
 
 H.L.C. . 
 
 Clark's House of Lords 
 
 Ch. Ca. or 
 
 \ Cases in Chancery. 
 
 
 Cases. 
 
 Cha. Ca. 
 
 Hagg. . 
 
 Haggard. 
 
 Ch.D. . 
 
 . (Law Reports) Chancery 
 
 Hob. . . 
 
 Hobart. 
 
 
 Division. 
 
 Hutt. . . 
 
 Hutton. 
 
 CI. & F. 
 
 . Clark & Finnelly. 
 
 
 
 C.P.D. . 
 
 . (Law Reports) Common 
 Pleas Division. 
 
 Keb. . . 
 
 Keble. 
 
 Cowp. . 
 
 . Cowper. 
 
 L.J.K.B. . 
 
 Law Journal, King's 
 
 Cox, 
 
 . Cox's Chancery Cases. 
 
 
 Bench. 
 
 Cox, Cr. Ca. Cox's Criminal Cases. 
 
 L.R. . . 
 
 Law Reports.
 
 XXXVlll 
 
 ABBREVIATIONS 
 
 L.R. Ch. "I (Law Reports) Chancery 
 
 App. J Appeal Cases. 
 L.R.H.L. . (Law Reports) House of 
 
 Lords. 
 L.R.Q.B. . (Law Reports) Queen's 
 
 Bench. 
 Ld. Raym. Lord Raymond. 
 Leon. . . Leonard. 
 Lev. . . Levinz. 
 
 M. & Cr. . Mylne and Craig. 
 
 JL & G. . ^Manning and Granger. 
 
 M. & S. . ISIaule and Selwyn. 
 
 M. & W. . Meeson and Welsby. 
 
 Macq. . . Macqueen (Scotch Ap- 
 peals) . 
 
 Mer. . . Merivale. 
 
 Mod. . . Modern Reports. 
 
 My. & K. . Mylne and Keene. 
 
 P. "Wms. . Peere Williams. 
 
 Plowd. . . Plowden. 
 
 Pre. Cha. . Precedents in Chancery. 
 
 Q.B.D. . (Law Reports) Queen's 
 Bench Division. 
 
 Rep. 
 
 Coke. 
 
 Rep. in Ch. \ jj ^g j,^ chancery. 
 Rep. Ch. J ^ ^ 
 
 Salk. . . 
 Sch. &. Lef. 
 
 Sid. . 
 St Tr. 
 Stra. 
 
 T.L.R. 
 T.R. 
 
 Toth. 
 
 Vent. 
 Vern. 
 Ves. Sr 
 
 Salkeld. . 
 
 Schoales and Lefroy 
 
 (Irish). 
 Siderfiu. 
 State Trials. 
 Strange. 
 
 Times Law Reports. 
 Durnford and East, 
 
 Term Reports. 
 Tothill. 
 
 Ventris. 
 Vernon. 
 Vesey, Senior. 
 
 "Wms. Sand. Sanders (ed. Williams). 
 Y.B. . . Year Books.
 
 PERIOD I 
 BEFORE THE NORMAN CONQUEST
 
 AUTHORITIES TEXT-BOOKS 
 
 Gesetze der Angelsachsen, ed. Liebermann Bigelow, M. M. History of Procedure in 
 (best). England, chapters v-x (Macmillan). 
 
 „ „ ed. Schmidt. 
 
 Holdsworth, W. S. A History of English 
 Ancient Laios and Institutes of England, Law, Vol. II, Book I (Methuen). 
 
 ed. Thorpe (Record Series). 
 
 Maitland, F. W. A Prologue to a History 
 
 Codex Diplomaticua Aevi Saxonici, ed. of English Law (Select Essays in 
 
 Kemble. Anglo-American Legal History, I, 
 
 7-33). 
 
 Diplomatarium Anglicum Aevi Saxonici, 
 
 ed. Thorpe. Pollock, Sir F. English Law Before the 
 
 Norman Conquest (Select Essays in 
 Anglo-American Legal History, I, 
 
 Handbook to Land Charters, Earle. 
 
 Pollock, Sir F., and Maitland, F. W. 
 The History of English Law Before 
 the Time of Edward 7, Book I, chap- 
 ters I and n (Cambridge Press).
 
 A SHORT HISTORY OF 
 ENGLISH LAW 
 
 CHAPTER I 
 OLD ENGLISH LAW 
 
 IT is the glory of English Law, that its roots are sunk deep into 
 the soil of national history; that it is the slow product of the 
 age-long growth of the national life. A few words, therefore, 
 albeit diffident and cautious, must be said in this book of that dim 
 period in which the foundations of the national character were laid. 
 As years go, it was a long period, lasting little less than six centuries. 
 During those long years, English men lived and died, married and 
 begot children, fought a good deal and brawled more, were con- 
 verted from heathendom to a rather secular Christianity, built 
 a few petty towns. But, for the most part, their lives were 
 occupied with clearing and tilling a fertile and well-watered country, 
 whose very fertility was a source of endless labour; for the English 
 settlers found vast forests to be cleared before the soil would begin 
 to yield corn or pasture. The record of those long years is in the 
 smiling fields of modern England, whose remotest village seems, 
 to the visitor accustomed to the rough farming of virgin lands, 
 like the garden of some lordly pleasure-house. Some few chronicles 
 of this dim time have survived to us. But of laws and institutes 
 we have little; and that little is obscure and untrustworthy. 
 
 The so-called Anglo-Saxon Laws date from a well-recognized 
 stage in the evolution of law. They reveal to us a patriarchal 
 folk, living in isolated settlements, and leading lives 
 Saxon'Laws regulated by immemorial custom. Whilst there are cer- 
 tain features common to all of them, showing us a society 
 to some extent homogeneous, they differ in detail from one petty 
 kingdom to another, almost from one village to another. There- 
 fore, it is very hard to base any general statements upon them. 
 More serious drawback still, the longer one studies them, the more 
 one suspects that they deal rather with the novel and uncertain.
 
 4 A SHORT HISTORY OF ENGLISH LAW 
 
 than uith the normal and undoubted rules of law. That is, after 
 all, natural; for, among primitive people, the process of law- 
 making, or law-declaring, is painful and laborious, only to be 
 resorted to under severe pressure. ^Vhy trouble to record that 
 which every village elder knows ? Only when a disputed point 
 has long caused bloodshed and disturbance, or when a successful 
 invader (military or theological) insists on a change, is it necessary 
 to draw up a code. That is practical sense; but it has its draw- 
 backs for the student of legal history. 
 
 Still, the student must be grateful for the Anglo-Saxon Laws. 
 In some respects they are unique. Some of them are very archaic 
 Their ^^ character, pointing to a society not far removed 
 
 Character from utter barbarism, whose women and slaves stand on 
 the same footing as cattle and sheep. Most of them seem to have 
 been drawn up in the vernacular; whereas the corresponding Leges 
 Barbarorum of the Continental Germans were, almost invariably, 
 recorded in Latin, probably by Italian scribes. Consequently, 
 the old English laws are more likely to be true pictures of life than 
 codes like the Lex Salica, which, as the famous " Malberg glosses " 
 suggest, was translated by its compilers from an uncouth tongue 
 which they failed to understand.^ 
 
 A much-debated question stands at the threshold of our story. 
 How far are we justified in assuming that our English law is of 
 Foreign English origin ? England was settled by other tribes 
 Influences before the English arrived. Those tribes had a civili- 
 zation of their own. They were conquered by the Romans, who 
 governed them for centuries. Those almost-prehistoric centuries 
 were the golden age of Roman jurisprudence; before the oldest of 
 the Anglo-Saxon codes was drawn up, Justinian's monumental 
 Corpus Juris had been given to the world. Wlien Edward Long- 
 shanks conquered the Welsh in the thirteenth century, his 
 officials held an inquest which revealed a highly organized system 
 of tribal land-ownership ; and this system may (though that is 
 by no means certain) have dated from very ancient British 
 times, and once have prevailed throughout Britain. Once more, 
 the Anglo-Saxon laws bear evident traces of ecclesiastical influ- 
 ence ; Aethelbirht's code was drawn up " on St. Augustine's 
 Day." Are we to suppose that nothing found its way into 
 
 ' Soo tho Notes in the synoptic edition of the Lex Salica by Hessela and Kern 
 (Murray, 1880).
 
 OLD ENGLISH LAW 5 
 
 them from decrees of Councils and Synods; though the days 
 of a refined Canon Law were yet to come ?^ 
 
 Each branch of this enquiry is matter for speciaHsts; and 
 none can safely yet dogmatize. Only it may be pointed out, 
 ^j^g that a rough and ignorant people like the English, 
 
 Question noted from of old for their sullen aloofness from the 
 wider world, would not be very amenable to foreign in- 
 fluences ; that they would hardly be likely to borrow much from 
 the conquered Welsh, from an Emperor at Constantinople, or 
 even from an Eastern Council. Such outside influences as did 
 penetrate into primitive England came, probably, from household 
 slaves, some of whom might be captives of superior education, 
 from provincial versions of the Theodosian Code, or from the 
 Penitentials of the mass priest. It is doubtful whether Justinian's 
 legislation was generally known in \Yestern Europe before the 
 Norman Conquest. 
 
 First we notice, that there is no ' equality before the law. ' 
 A man's rights depended, both on his social rank, and, in some 
 Peoples cases at least, on the custom of his neighbourhood. 
 Ranks jj^ various apocrj^phal documents drawn up after 
 
 the Norman Conquest,^ we see clear traces of a status system, 
 which, though it was giving way, long continued to dominate 
 English society. The noble by birth (eorl, aetheling, gesith), 
 natural product of pure patriarchal life, had almost disappeared. 
 He survives in the older laws as protected by a special wergild ; 
 probably, if analogy is to be trusted, he was maintained by 
 special gifts from his fellow tribesmen, entitled to feast at their 
 houses and to be clothed with the finest produce of their looms. 
 The ceorl is the typical farmer. If we call him ' free,' we import 
 modern ideas into primitive society. Probably he was not free 
 in the sense that he could throw up his calling and go where he 
 liked ; with equal probability he had no desire to do so. Prob- 
 ably he paid some tribute ; so does the modern ' free citizen.' 
 Certainly he was liable (or, should we say, entitled ?) to military 
 service. On the other hand, he had probably a substantial 
 claim, by the mere fact of his birth, to a share in the land of his 
 
 1 The oldest collection of Canons, that of Dionysius Exiguus, is also older than 
 the oldest English code. 
 
 * E.g. the Rectitudines Singularum Personarum and the De Veteri Consuetudine 
 Promotionum, both printed in the collections of Anglo-Saxon Laws.
 
 6 A SHORT HISTORY OF ENGLISH LAW 
 
 village ; and his life was protected by a wergild which was, almost 
 certainly, payable to his kindred, and not, even towards the end 
 of the period, to his lord.^ Below the ceorl came a class whom we 
 may fairly call ' unfree,' in the sense that they were treated more 
 as property than as persons. Doubtless (as some of the names 
 given them imply) they were not mere domestic slaves, herded 
 together in their lord's house, but were allowed to occupy cot- 
 tages and, probably, patches of land. But, in the period of 
 which this chapter treats, they were marked off from the ceorl 
 by the facts that they did not serve in the host, they had no place 
 in the moot, and that violence to their persons, though it was 
 punishable, brought them no personal compensation. The 
 mannbot of the unfree went to his lord. The many names 
 (theow, esne, laet, &c.) by which this class is described in the 
 Anglo-Saxon Laws, seem to point, not merely to differences of 
 race, but to differences of legal standing. Still, no conclusive 
 solution of these problems has yet appeared. 
 
 Most important, for legal purposes, is the class of thegns, 
 which, apparently unknown or little important in the earliest 
 days, from the end of the ninth century rapidly 
 acquired a prominent position. The origin of the 
 thegn is matter for general and constitutional history. But it 
 must be noticed that, from his earliest mention in the codes, 
 he is specially marked by signs which rapidly become character- 
 istic of later law. He is peculiarly connected with the royal 
 service.^ All thegns are servants, as their name implies;^ but 
 the " King's thegn" overshadow the others, and tend to exclude 
 them finally from a class which is rapidly becoming of special 
 importance. Service, with the thegns, at any rate with many 
 of them, was peculiarly associated with land-holding ; we shall 
 probably not be wrong in identifying the thegn with the land- 
 rica or land-hlaford, who appears as an established institution 
 from the time of Aethelstan, exercising jurisdiction in matter of 
 purchases, collection of tithes, accusing of criminals, and other 
 functions of local authority. Of his relation to land-ownership, 
 something more must be said when we come to deal with that 
 
 • Liebermann, p. 393 (Walreaf). The lord may have had an additional claim 
 against the murderer. 
 
 ' The " king's thegn" is mentioned as early as the code of Wihtraed (20), attrib- 
 uted to the year 695 a.d. 
 
 ' It is the modern German 'dienen' = 'to serve.'
 
 OLD ENGLISH LAW 7 
 
 subject. But we cannot here part from the thegn without 
 noticing, that through him the rule of forfeiture for misbehaviour 
 seems to have come into our law. The thegn who deems an 
 unjust doom is to lose his thegnship.^ It is a principle which 
 can be widely applied. 
 
 In matters more strictly legal than the organization of society, 
 we note at first, apparently, an almost entire absence of that 
 exercise of State authority which, at the present day, is regarded 
 as an essential of civilized life. This is specially remarkable 
 in that branch of law which to us seems the peculiar province of 
 the State, viz. the administration of justice. Nothing can be 
 clearer than that, in the earlier part, at least, of the Early English 
 period, the action of the State, or even of the local authorities, 
 in this matter, was only invoked in rare cases, and with great 
 reluctance. 
 
 The oldest form of redress for injuries suffered is personal 
 vengeance. In one sense it is, of course, illegal, because it 
 is not regulated or formally sanctioned by the State ; 
 in another it is not, for there is, in the earliest days, 
 no law against it. Moreover, whatever public opinion may 
 then have existed regarded it with toleration, if not with actual 
 approval. The first restriction comes with the feeling that 
 indiscriminate vengeance is intolerable. The man who has 
 been wounded by a chance arrow must not shoot at sight the 
 first man he happens to meet. He must make some attempt 
 to identify the aggressor. If the wound proves fatal, the rela- 
 tives of the slain may avenge the victim. But they, too, must 
 not slay indiscriminately ; they must restrict their vengeance 
 to the murderer, and his kindred, who may be supposed to be 
 FoUowing sheltering him. If an ox is stolen, there must be 
 the Trail some attempt to track it ; the trail must be followed 
 until it leads to the stall of the thief. It is not permissible to 
 seize the nearest beast to replace the loss. If the track leads 
 to the thief's stall, but the stolen ox cannot be found, the pursuer 
 may seize a beast belonging to the suspected thief, 
 to compel the return of the stolen ox. But he may 
 not make good his loss at the expense of his peaceful neighbour, 
 who has done him no wrong. 
 
 There is abundant evidence in the Anglo-Saxon Laws, that 
 
 » A. S. L., Edgar, III, 3 (Andover)
 
 8 A SHORT HISTORY OF ENGLISH LAW 
 
 the feud, the fresh pursuit, and the distress (nam) were per- 
 fectly famihar to the compilers of the codes. There is also 
 evidence that the wiser members of the community, supported 
 by the kings, were anxious to modify and, perhaps, ultimately 
 to suppress them. Not only do there appear numerous attempts 
 to restrict the feud to its narrowest limits — it is to be levied 
 only against the actual wrong-doer and his harbourers, the 
 right of sanctuary is to be respected, and on peace days hos- 
 tilities are to cease. But the Laws aim continually and ear- 
 nestly, with minute care, to persuade the aggrieved party to 
 accept the blood fine or wergild in lieu of corporal revenge ; 
 at any rate if the wrong-doer does not attempt further violence, 
 ' right ' must be demanded of him before the ancient claim 
 of vengeance is enforced.^ So also, even if the stolen beast is 
 tracked, the person with whom it is found must be given a 
 chance of proving his innocence ; he may have bought it in an 
 open market before proper witnesses. And so the picturesque 
 process of intertiatio, or anefang, is enjoined ; after a formal 
 claim has been made, the beast is lodged with a third person 
 to await the issue of the dispute.^ Only with the advent of a 
 strong monarchy was it possible to stamp out the extra-judicial 
 distress,^ or at least to confine it to claims by a lord against his 
 vassal. In later days, the process of vee de nam became one 
 of the most important in the legal armoury ; and the remedy 
 of replevin curbed even the privileges of a lord. 
 
 What exactly happened if, as the result of these attempts 
 Clearing ^^ substitute legal procedure for self-help, the hot blood 
 Oath and was cooled, and the parties made to swear the peace, it 
 is very difficult to say. Mr. Bigelow,^ arguing from 
 the evidence of the next period, and founding himself on 
 the very reasonable assumption that the Norman procedure 
 took over a good deal of the pre-Norman, has attempted to 
 construct a sort of general picture of a primitive English lawsuit. 
 But the subject is beset with difficulties ; for of contemporary 
 evidence there is little or none, if we except the few forms of 
 
 ' See especially Aelfred, 42; Aethelr. IV, 4 (London) ; Edmund, II, 1, 2 (Lon- 
 don) ; all in A. S. L. 
 
 ' Ine, 25, 1 ; 75 ; Aethelst. II, 9 ; Aethelr. II, 8. Apparently the native word 
 does not appear in the Laws. This suggests that the process was of foreign origin. 
 
 ' There is clear prohibition in the so-called Laws of William, 44 (A. S. L.). It 
 may or may not represent pre-Conquest law. 
 
 * History of Procedure in England, Macmillan, 1880.
 
 OLD ENGLISH LAW 9 
 
 oath and the fragments of the ordeal ritual which survive.^ 
 Generally speaking, it may be said that the formal proceedings 
 commenced with the pronouncement, by the elders of the moot, 
 of a doom which specified the penalties for the alleged offence, 
 and settled the very important question of the onus of proof, 
 or, as it ought, perhaps, according to the ideas of the day to be 
 called, the privilege of proof. And so we are not surprised to 
 find that ' denial is ever stronger than claim ' ; ^ for the ' proof ' 
 was not what we should understand by evidence at all, but merely 
 a general denial of the accusation by the accused and his oath- 
 helpers. Generally speaking, if the accused was of good charac- 
 ter, and the circumstances were not overwhelmingly against him, 
 a day was set for the performance of this ceremony ; and, if it 
 were successfully accomplished, with due number of helpers and 
 due observance of technicalities, the accused was acquitted. 
 But if the accused were ' tihtbysig,' i.e. of bad character, 
 or if he had been taken red-handed, he was put to the severer 
 test of the ordeal. 
 
 What happened in either case if the accused failed to clear 
 himself, is also a matter of no little doubt. Probably he or 
 his relatives paid, or gave security for, the proper wergild with- 
 out further dispute. If he or they were still obstinate, or too 
 poor, the feud which these proceedings had attempted to scotch, 
 revived ; and the injured party or his relatives, if sufficiently 
 strong, exercised the ancient right of corporal vengeance. Even 
 at the end of this period, the local moot seems to have had no 
 executive power whatever ; and the royal action, if it applied 
 at all to private lawsuits, was confined to the simple step of 
 compelling the accused to come before the moot in the first 
 instance. To secure his re-appearance, it was necessary to 
 take security from him; either by pledge (wed) or by bail 
 (borh). 
 
 In all this process, the action of the State, i.e. the central 
 government, was, as has been said, very small. But there are 
 Stat A ti signs that, even in this remote Early English period, 
 the royal officials were beginning to play a larger 
 part in the administration of justice. They probably approached 
 the matter, first from the side of revenue, then from that of police. 
 
 1 A. S. L. ; Liebermann, I, 396-429. 
 
 2 A. S. L. ; Aethelr. II, 9 (3).
 
 10 A SHORT HISTORY OF ENGLISH LAW 
 
 From the days of Ine, at least, the ceorl who neglected his mili- 
 tary service paid ' fyrdwite ' to the King ; ^ in the reign of Edward 
 the Elder ^ we see traces of the ' oferhyrnes,' or special fine to 
 the King for disobedience to the royal command, which was, 
 apparently, often used to support the authority of the local 
 moot in the adjustment of disputes. 
 
 But the claims of the King soon went still further. Doubt- 
 less the ordinary offence, even the violent offence, was looked 
 Bootless upon, primarily, as a wrong to the party specially 
 Wrongs injured, and his kindred. Yet there are traces, in 
 almost all primitive law, of peculiarly detested acts, which the 
 community takes upon itself to punish by some form of com- 
 munal vengeance. The interesting survival of the darrocade, 
 described by Mr. Round,^ in the communes of the twelfth 
 century, may or may not be primitive ; but it is clear that very 
 primitive people draw a distinction between a merely festive 
 murder or robbery, and an act aimed directly at the security 
 of the community, such as tampering with strangers against the 
 common interest, or putting a spell on the common fields. In 
 its modern form of ' Lynch law,' the same interest still manifests 
 itself where the State is weak. The vengeance of the community 
 is, however, slow and unorganized. A great step is gained when 
 the King takes its place. Not onl}^ are ' botleas ' offences 
 more promptly punished ; but the list of them can be in- 
 definitely extended. The change was clearly marked in England 
 by the time of Cnut;"* by the time of the Conquest the list 
 of the ' King's rights ' had greatly extended.^ Thus the land 
 saw the beginnings of a true criminal law. A man accused on 
 such a charge had no right to the elaborate privileges which stood 
 between the private accuser and his prey. Until the Assise of 
 Clarendon, in the next period, introduced something like a true 
 criminal procedure, he was lucky if he could obtain some sim- 
 ple and summary method of trial, probably by ordeal.^ It 
 was centuries before the person accused at the King's suit 
 
 ^ A. S. L. ; Ine, 51. (Note the difference between the punishment of the gesith 
 or thc'gii, and the ceorl.) 
 2 Edward, II, 2 (1). 
 ' Feudal England, pp. 552-562. 
 
 * A. S. L. ; Cnut, II, 12. 
 
 * Leges Henrici (Primi), c. X (1) (A. S. L. ; Liebermann, I, 556). 
 
 * Legea Henrici (Primi), c. XLVII, c. LX (17). This compilation probably 
 representa the law as it was supposed to be at the time of the Conquest.
 
 OLD ENGLISH LAW 11 
 
 secured what would now be considered the elements of a fair 
 trial/ 
 
 It is only indirectly, and through unintentional hints, that 
 we can detach from the heap of unsystematic ' dooms ' which 
 make up the Anglo-Saxon Laws, any hints of a 
 law of property. The existence of ideas which will 
 some day produce the notion of property, or at least of possession, 
 is to be found in the recognition of theft as an offence, and in 
 the reluctant allowance, under stringent safeguards, of the sale 
 of cattle. It is clear that, in fact, many other articles, e.g. 
 garments, armour, and weapons, and, presumably, threshed 
 corn, and ale, were known to our pre-Conquest ancestors. But 
 the fact that the word ' chattel ' has survived as the inclusive 
 legal term for all movable goods, points, not merely to the great 
 importance of cattle in primitive times, but to the importance 
 of the notion of sale or barter in generating the institution of 
 property. Apparently, the Laws do not regard other goods as 
 transferable; except, perhaps, for special purposes, such as the 
 satisfaction of wergilds.^ And, obviously, the man who was 
 found with a beast bred in another man's stall was, prima jacie, 
 a thief ; if he wished to clear his character, he had to name the 
 man from whom he bought it in open market, and this man must 
 take up the burden of the charge, or fight the man who has 
 * vouched him to warranty.' In this process of vouching to 
 warranty {team), there was much that influenced the law of 
 property in later days. In the oldest time, it was, primarily, a 
 means of escaping a charge of theft. 
 
 Still more reticent are the Anglo-Saxon Laws in anything 
 that relates to land-ownership. In one famous passage,^ land. 
 Property in regarded as a subject of property, is divided into 
 ^^^^ boc-land and folc-land. The division may or may 
 
 not be exhaustive. A curiously unfounded theory, which was 
 
 1 By the time of the Conquest, murder had, in theory, become one of the ' bot-leas 
 crimes.' But, so late as the year 1220, a survival of the old wergild system for 
 homicide was recognized by the King's judges on the plea of local custom. (See 
 Bracton's Note-Book, Vol. Ill, plea 1474.) But possibly the case was one of 'sudden 
 affray.' 
 
 2 It is clear that, on the Continent, the practice of satisfying wergilds by payment 
 in kind was recognized early, e.g. in the Lex Ribuaria or code of the Ripuarian 
 Franks (see the author's Law and Politics in the Middle Ages, pp. 198-9). There is, 
 possibly, a trace of the practice in England in Edgar's Ordinance of the Hundred (8), 
 printed among the A. S. L. 
 
 » A. S. L. ; Edward, I, 2.
 
 12 A SHORT HISTORY OF ENGLISH LAW 
 
 accepted for the best part of a century, identified it with the 
 distinction between private and pubHc ownership. The theory- 
 fell to pieces at the touch of Professor Vinogradoff ; ^ and now% 
 dark as the subject still is, it is generally accepted that Spelman 
 was right- when he identified folc-land with the holding of the 
 ordinary peasant. ]More recent researches have made it appear 
 probable that this holding was a share allotted by local custom 
 (' folc-riht ') in the common fields of the township, probably 
 not as a fixed, separate possession, but as a shifting interest. 
 Boc-land, as its name implies, is ' land ' which has been made 
 the subject of a written charter, or ' boc ' ; and the few genuine 
 charters of the period which profess to deal with alienation of 
 land probably refer to this kind of ownership. It seems to 
 have been specially connected with thegnship. The Recti- 
 tudines^ speak of the thegn's * boc-riht ' in close connection 
 with his land ; and it is not unlikely that what the thegn really 
 had was jurisdiction {socn) over a certain area, rather than 
 what would now be called ownership. The ceorl's folc-land, on 
 the contrary, w^as, probably, the land which he ploughed and 
 reaped by ancient customary rule. Thus, the same acre of 
 ground might be the folc-land of the ceorl and the boc-land of 
 the thegn who w^as his lord. If so, it is clear that, even before 
 the end of this period, a long step had been taken towards the 
 establishment of that principle of tenure which to-day dominates 
 our land law. For the thegn's right could hardly come, ulti- 
 mately, from any one but the King ; though it is possible that, 
 even so early as the tenth century, a King's thegn might have 
 had thegns under him. Apparently, folc-land could be alienated 
 'with shire w'itness.'^ Boc-land might well be forfeited;^ 
 probably it could not be alienated without the permission of 
 the donor. It was as much an office as pro])erty. 
 
 Finally, if it be asked whetlier, in this early period, there 
 was anything which, without abuse of terms, may be called a 
 Law of Contract, or a Law of Tort, it must be answered that, if we 
 
 ' The famous article appeared in the English Historical Review, VIII, 1-17. 
 
 * Fevds and Tenures, caps. V, IX ; Antient Deeds and Charters, in Posthumous 
 Works (od. 1723), pp. 12, 33, 233. Coke seems to have held the same view (Com- 
 pleate Copyholder, s. IV). 
 
 2 A. S. L. ; Liehorniann, I, 444. 
 
 * A. S. L. ; Cnut, 79 (perhaps, however, the passage refers only to a disputed 
 title). 
 
 ' lb. 77.
 
 OLD ENGLISH LAW 13 
 
 insist on modern distinctions, there was not. But if we are con- 
 tent to look for primitive practices which may afterwards give 
 Contract rise to these modern ideas, we shall not look entirely 
 and Tort '^^ vain. For in the practices of giving ' wed ' (pledge), 
 or security for the performance of some act, or ' borh ' (bail), 
 as surety for good conduct, we see undoubtedly the legal ancestors 
 of the ancient contracts of pledge and guarantee. At first, it 
 is probable, these practices were confined to the most urgent 
 necessities of primitive law, viz. the submission to legal process 
 and the maintenance of the peace. But we can hardly suppose 
 King Alfred to have placed in the forefront of his secular code 
 the supreme importance of 'holding one's wed'; unless the wed 
 had covered a wider range of duty than the mere delivery of 
 one's-self to justice. It is true that, along with breach of wed, 
 Alfred classes breach of oath ; but we know that, in later times, 
 whatever the practice of the Church, the Courts of the State 
 refused to punish the loesio fidei with a legal sanction. Of the 
 very modern distinction which separates a breach of a promise 
 from a ' wrong unconnected with contract,' there is in this 
 period no trace. Scarcely, as we have seen, are men beginning 
 to draw the much earlier distinction between offences which 
 merely involve the offender in a family feud, and those which 
 also draw down on him the wrath of the King, with its out- 
 lawry and forfeiture. Therefore the famous generalization of 
 Sir Henry Maine hardly fits the facts of the Old English Law, 
 if indeed of any primitive system. The ' penal law of ancient 
 England' is not, 'to use the Enghsh technical word,' a 'law 
 of Torts.' ^ It is a law which, with rare exceptions, recognizes 
 merely the root idea of a wrong; it does not distinguish between 
 crime, tort, and breach of contract. These sharp distinctions 
 will come later on ; but, even when they arrive, they will overlap 
 in a way which points conclusively to their common origin. 
 Even at the present day, one and the self-same act may be a 
 crime, a breach of contract, and a tort. 
 
 1 Ancient Law (ed. Pollock, 1906), p. 379.
 
 PERIOD II 
 
 THE CONQUEST TO THE DEATH OF HENRY III 
 
 1066-1272
 
 AUTHORITIES 
 Quadripartitus, ed. Liebermann (Halle, 1882). 
 
 1 Printed in the va- 
 rious editions of 
 The Anglo-Saxon 
 Laws (see Chap. 
 „ , -^ .-, I). 
 
 Leges Henrici Primi 
 Leges Willelmi 
 
 * Corpus Juris Civilis. 
 
 Digest ed. Mommsen"! 
 
 ^^^tutes: ""T" (Berlin. 1904-8.) 
 Novels „ „ J 
 
 * Corpus Juris Canonici, ed. Friedberg (Leipzig, 
 
 1879-1881). 
 
 Select Charters and Other Illustrations of English 
 Constitutional History, ed. Stubbs (Oxford, 
 8th edition, 1905). 
 
 Red Book of the Exchequer, ed. Hall (Rolls Series, 
 3 vols. 1896). 
 
 Glanville, Tractatus de Legibus et Consuetudi- 
 nibus Angliae, ed. Rayner (1780, translation 
 by Beames, 1821). 
 
 TEXT-BOOKS 
 
 Brunner, H., Sources of Eng- 
 lish Law (Select Essays in 
 Anglo-American Legal His- 
 tory, II, 7-52, trans.). 
 
 Holdsworth, W. S., A History 
 of English Law, Vol. II, 
 Bk. II, Pt. I, chapters i and 
 II (Methuen). 
 
 Maitland, F. W., Materials for 
 the History of English Law 
 (Select Essays in Anglo- 
 American Legal History, 
 II, 53-95). 
 
 Pollock, Sir F., and Maitland, 
 F. W., The History of Eng- 
 lish Law Before the Time 
 of Edward I , Bk. I, chapters 
 iii-vi. Bk. II (all) (Cam- 
 bridge Press). 
 
 Stubbs, William, The History of 
 the Canon Law in England 
 (Select Essaj's in Anglo- 
 American Legal History, 
 
 I, 248-288). 
 
 Thayer, J. B., The Older Modes 
 of Trial (Select Essays in 
 Anglo-American History, 
 
 II, 367-402). 
 
 Vinogradoff, P., Villainage in 
 England (Clarendon Press). 
 The Growth of the Manor (Son- 
 
 nenschein). 
 English Society in the Eleventh 
 Century (Clarendon Press). 
 
 * Of course, editions of the Corpus Juris are almost innumerable. Those named 
 are good and easily accessible. 
 
 Bracton, De Legibus et Consuetudinibvs Anglice 
 (Tottell, 1569). 
 
 Scargill-Bird, Guide to the Various Classes of 
 Documents Preserved in the Record Office (3d 
 edition, 1908).
 
 CHAPTER II 
 SOURCES OF THE COMMON LAW 
 
 WHATEVER else the Norman Conquest may or may 
 not have done, it made the old haphazard state of 
 legal affairs forever impossible. The natural desire 
 of the conquerors to make the most of their new acquisition, 
 the exceptional administrative and clerkly skill of the Normans, 
 the introduction of Continental politics, the rapid growth of the 
 country in wealth and civilization, soon proved the old customs 
 to be inadequate. For some time, no one could tell what was 
 going to take their place. In the end, there emerged a new 
 national law ; some of it based on immemorial native usage, 
 some of it unconsciously imported from foreign literature, not 
 a little imposed by the sheer command of a new and immensely 
 stronger central government. The precise share attributable 
 to each of these sources will, probably, never be ascertained. 
 Here, at least, all that can be done, is, to give the reader some 
 general idea of the materials which went to make up the common 
 law. 
 
 A. The Lex Terrae 
 
 It was part of the policy of the Conqueror to persuade his 
 new subjects that he was heir to the kingdom of Edward the 
 Confessor by lawful succession. The fiction must have been 
 almost too gross for belief, even in an unlettered age ; but the 
 motive which prompted it led William to promise respect for 
 the ' law of the land,' i. . for the ancient customs of the people. 
 The trouble was, that these customs differed from place to place 
 and from class to class. No authoritative statement of them 
 existed. As we have seen, the so-called ' Anglo-Saxon Laws ' 
 were fragmentary and unsystematic. The old moots had kept 
 no records. There was no class of Enghsh legal experts, such 
 as those jurisconsults of the Roman Empire who had reduced 
 the usages of Republican Rome to order and method. 
 
 Not unnaturally, efforts were made to supply the gap. Various
 
 18 A SHORT HISTORY OF ENGLISH LAW 
 
 private compilations, one of them at least claiming (untruth- 
 fully) an official origin, appeared ; and a few of them have 
 survived. They throw comparatively little light on the subject ; 
 for their authors were utterly uncritical, by no means free from 
 local and political bias, and totally devoid of literary skill. 
 Quadripar- One of thcse Compilations is known as the Quad- 
 titus ripartitus, because (probably in imitation of the 
 
 Roman Institutes) it starts with the announcement that it 
 will comprise four books — the first containing a Latin transla- 
 tion of the old English Laws, the second certain contemporary 
 documents, the third a treatise on status and pleading, the 
 fourth a treatise on theft and its varieties. If it was ever com- 
 pleted, it must have been a curious production ; but only the 
 first two books have survived. The so-called ' English Laws ' 
 are a crudely modernized version of the dooms of Cnut, Alfred, 
 Athelstan, Edw^ard the Elder, Edmund, and Ethelred, in the 
 order named. Some of them are mere titles or rubrics; others 
 are translations more or less full. The second book begins 
 wdth a few official documents attributed to Henry I, and helps 
 us to date the compilation at about the year 1115 ; but it soon 
 trails off into a wordy argument on the subject of investitures, 
 with a special defence of Archbishop Gerard of York, who was, 
 apparently, the compiler's patron. 
 
 Slightly later (probably about the year 1118) comes the 
 compilation known as the Laws of Henry I, because it com- 
 mences with a charter of that monarch. But it 
 Henrici is principally occupied with a rather serious attempt, 
 
 (Primi) ^y ^ writer not well fitted for his task, to compile from 
 
 a multitude of local customs, of the existence of which he had, 
 somehow, become aware, a general statement of the principles of 
 English law. The task, as has been hinted, was beyond the 
 author's powers ; he was no Bracton. But his work is not without 
 value ; though it can hardly be used safely by any but an expert. 
 
 Passing by the two fragments known as Insiituta Cindi and 
 the Consiliatio Cnuti, both, as their titles imply, based on the 
 Leges legislation of Cnut, as well as the forged Forest 
 
 WiUeimi Laws scandalously foisted on the same monarch, 
 we may notice, chiefly to distinguish it from the genuine legis- 
 lation of the Conqueror, a work known in various editions as 
 the Laws of William the Conqueror, Leges Willelmi, or Leis
 
 SOURCES OF THE COMMON LAW 19 
 
 Willelme (or Williame). It seems, like its immediate prede- 
 cessor (for it is attributed to the first half of the twelfth 
 century) to have been an unofficial compilation by some one 
 who had access to a collection of Old English dooms, and who 
 was also more or less in touch with Norman and official usage. 
 Apparently, it was compiled both in Latin and in Norman- 
 French ; hence it is sometimes spoken of as the ' bilingual 
 code.' Its chief value is, perhaps, that it shows us a little of 
 that feudalizing process which converted the old system of 
 People's Ranks into the later system of tenure. At one point, 
 the compiler seems about to tell us a good deal concerning 
 this ; ^ but, apparently, he found it too difficult a subject, and 
 relapsed into a translation of Cnut's legislation, the general 
 refuge of the compiler of the day. 
 
 Finally, and perhaps the least trustworthy of all in this group 
 of sources, we have the so-called Laws of Edward the Confessor, 
 Laws of which profess to be an official collection, drawn up 
 Edward the jn 1070 from the mouths of local juries by wise and 
 skilful officials. Had such an inquest ever really been 
 taken, it would have been of priceless value. L^nfortunately, there 
 is no reason to suppose that it was; and, if it was, the result 
 is certainly not to be found in the Leges Edivardi. In the 
 opinion of good judges, this compilation is the least valuable of 
 all the group, for historical purposes ; though it seems to have 
 been popular in its day. 
 
 B. Roman Law 
 
 Almost contemporaneously with William's descent on Eng- 
 land, came the revival of the study of Roman Law in Western 
 Europe. Beginning, naturally enough, in Italy, in the schools 
 of Bologna and Pisa, it spread to Paris, and from Paris to Oxford. 
 This time, it was not the barbaric versions of the Code of Theo- 
 dosius which passed for Roman Law; but the great Corpus 
 Juris of Justinian, published on the shores of the Bosphorus 
 just before the final severance of the Eastern and Western 
 Empires. As the command of a ruler, it had no force west of 
 the Adriatic, save, perhaps, for some time, in the Exarchate of 
 Ravenna, where the Byzantine Empire maintained a precarious 
 
 1 Leis Willelme (Liebermann), 20-24.
 
 20 A SHORT HISTORY OF ENGLISH LAW 
 
 footing for about a century and a half. It was as a revela- 
 tion of the wisdom of the ancient world, not as the com- 
 mand of an imperial ruler, that the men of Western Europe 
 received the Digest, Code, Institutes, and Novels, and began, 
 with feverish haste, to apply their teaching to make good the 
 yawning gaps in the barbaric laws of their native countries. 
 Every ambitious youth studied eagerly the Corpus Juris; a 
 knowledge of its contents gave him a sense of power almost 
 intoxicating in its keenness. So fierce was the heat which 
 radiated from this new enthusiasm, that the more conservative 
 forces took alarm. In the yeaT^J.21Q, JPoge^Honorius^ni for- 
 Opposition bade the teaching of Roman Law m the schools 
 to Roman of Paris, then, and for long after, under clerical 
 sway. The pious Henry of England, in 1234, issued a 
 similar ordinance concerning the schools of London (i.e. of St. 
 Paul's). A still more effective antidote to the teaching of Vaca- 
 rius at Oxford, was the later settlement of the professors of the 
 Common Law in the Inns of Court, between the Palace of West- 
 minster and the cathedral. Soon the cleric, sheltered beneath the 
 coif which concealed his tonsure, was pleading and judging causes 
 in the new royal courts of the Common Law. But we may be 
 sure, even if we had no evidence, that he did not entirely forget 
 the law which he had learned at Oxford or Cambridge, that, 
 when the customs of the realm, faithfully searched, gave no 
 answer to a new problem, he fell back on the Digest and the 
 Code. The older view, that Bracton's great work was a mere 
 attempt to pass off Roman Law as English, is no longer tenable ; 
 but Bracton's familiarity with Roman Law, and the channels 
 through which he derived it, have been demonstrated by the 
 hand of a master.^ It is idle to suppose that such knowledge 
 was not used ; especially in the solution of those problems for 
 which the ancient customs made no provision. But the point 
 to be remembered is, that the influence of Roman Law became 
 in England secret, and, as it were, illicit 
 
 C. Caxox Law 
 
 Quite otherwise was it with the Law of the Church. The 
 famous ordinance of William the Conqueror, withdrawing 
 
 • Bracton and Azo. ed. Maitland (S. S. Vol. VIII, 1895).
 
 SOURCES OF THE COMMON LAW 21 
 
 spiritual pleas^JroiiijthejCourt of the^ Hundred,^ produced hy, 
 and co-operating with, that spirit of clerical separation which 
 had become the settled policy of the Papacy, soon produced a 
 hierarchy of Church courts — archidiaconal, episcopal, pro- 
 vincial. The business of these courts rapidly increased. They 
 dealt with all matters which, by any exercise of clerical ingeiiuity, 
 could be claimed as pertaining to the cure of souls. All matters 
 in which a cleric was interested, all offences against the divine 
 law, all claims of Church dues, all questions affecting matrimony 
 (a sacrament of the Church), all disputes concerning the validity 
 or meaning of wills (for these were usually made in articulo ) 
 mortis), or the distribution of property given for pious uses — 
 these and many other matters did the Church courts claim, in 
 this and other lands, though by no means with invariable success. 
 To solve_the_many problems thus arising, there had grown up, 
 as a riyal_of^ ^j^^^Sf VJ^? . ^ ^ris .Cimlis. a. Corpus Juris Canonici. 
 The ancient collection of Dionysius Exiguus had been swelled 
 by the forgeries of the so-called " Isidore " (ninth century), and 
 by the Decretum Gratiani (c. 1140). Later on, these were 
 followed by the collection of Papal decrees known as the Decre- 
 tales, issued by Pope Gregory IX (1234), by the Sext, or sixth 
 book, of Boniface VIII (1298), by the Clementines of Clement V 
 (1317), and, finally, on the eve of the Reformation, by the 
 Extravagantes (1500). It was formerly the orthodox view, 
 that these collections had no inherent force in English eccle- 
 siastical courts ; but received only such courteous acknowledg- 
 ment as was extended by the King's Courts to the masterpieces 
 of Roman jurisprudence. Perhaps, indeed, the theory of the 
 ' English Canon Law ' was really a reflection of the attitude 
 of the common lawyers towards the Romanists. Anyhow, it 
 can no longer be held.^ In matters properly cognizable by 
 ecclesiastical courts, the Canon Law sanctioned by the Popes 
 at Rome was binding on all persons in England — is, indeed, 
 to a certain extent, still binding. As for the small English 
 output of ecclesiastical legislation (the Canons of English Synods 
 and Councils), it held a very subordinate place, recognized as 
 of local operation only when the Corpus Juris Canonici was 
 silent or not inconsistent. 
 
 1 Select Charters, 85. 
 
 ' The old theory is finally disposed of in the work entitled Roman Canon Law in 
 the Church of England, published by Professor Maitland in 1898 (Methuen).
 
 22 A SHORT HISTORY OF ENGLISH LAW 
 
 D. Charters and Concordats 
 
 It was inevitable, in spite of all their professions of peaceful 
 inheritance, that the Norman kings should think, act, and even 
 speak, as conquerors. The fight at Senlac, and the harrying of 
 the north, were events not easily forgotten or misunderstood. 
 ^Villiam and his successors enjoyed immensely greater power than 
 any of the older English kings. It was natural that their subjects 
 should seek from them formal grants of rights, and recognitions of 
 claims. The ' charter,' in this sense, is a striking feature of the 
 period now under review.^ The Conqueror himself, his son 
 Henry, Henry's grandson Henry II, John, and John's son Henry 
 III, all issued charters, professing to grant or yield disputed 
 points on which the views of the nation differed from those of the 
 King. For the most part, they deal rather with matters of public 
 than of private law ; though the distinction was not then recog- 
 nized. Sometimes, in the later half of the period, when the royal 
 power was less overwhelming, these documents take the form 
 of agreements or ' concordats ' between the King and his subjects. 
 Such are the important Constitutions of Clarendon of 1164, the 
 short-lived Provisions of Oxford (125S), the Provisions of West- 
 minster of 1259 (afterwards embodied in the Statute of Marl- 
 borough of 1267) ; and even the earlier so-called ' statutes,' such 
 as the Statute of Merton, of 1236, are really of this type. The 
 true Parliamentary statute does not make its appearance until 
 the next period. Most of the documents referred to under this 
 head will be found in the useful Select Charters of the late Bishop 
 Stubbs. 
 
 E. Official Practice 
 
 Lastly comes a source of which it is hardly possible to exaggerate 
 the importance for this period. The striking feature of the Anglo- 
 Norman system was the activity of the official. The clerks 
 who followed in the train of the Conqueror swooped upon the 
 neglected resources of England as a hawk upon its prey. Prima- 
 rily, no doubt, their motives were not elevated. Men do not, as a 
 rule, engage in an enterprise such as that of William with purely 
 
 ' Of course the word 'charter' will cover any written document; especially if it 
 professes to transfer rights. When the ordinary medieval conveyance was written, 
 it was gcuerally known us a 'charter.'
 
 SOURCES OF THE COMMON LAW 23 
 
 disinterested objects. Still, it is unquestionably true, that the 
 Norman administrator contrasts honourably with the Norman 
 baron in his treatment of the conquered country. And if there 
 were, occasionally, glaring instances of corruption among the 
 royal officials, it is evident also that the standard of ability and 
 industry was, on the whole, admirably high. It will be conven- 
 ient to group the mass of evidence which the Norman officials 
 have left us, under three heads. 
 
 a. First" come the formal regulations, known generally as 
 Assises, which laid down general rules for the conduct of official 
 Assises business. Nominally, of course, these regulations 
 
 were made by the King for the direction of his officials ; 
 in all probability they were, like Orders in Council at the present 
 day, drawn up by the officials concerned, and issued with the 
 royal approval. In theory, they did not profess to affect the 
 conduct of the ordinary citizen ; and, therefore, by a modern 
 'jurist, they would hardly be ranked as part of the general law. 
 In practice, they had a substantial effect in that direction; 
 because the royal officials, in their dealings with private persons, 
 acted upon them, and took good care that they should control the 
 course of business. Among the most famous are the Assise of 
 Clarendon of the year 1166, which laid the foundations of modern 
 criminal procedure ; the Grand Assise and the Assise of Novel 
 Disseisin of about the same date, neither of which survive in 
 complete form, but the purport of which can be gathered from 
 the forms of procedure to which they gave rise ; ^ the Assise of 
 Northampton, of 1176, a sort of second edition of the Assise of 
 Clarendon; the Assise of Arms, of 1181, which is, however, 
 concerned rather with public than with private law ; and the 
 Assise of Woodstock, of 1184, dealing with offences against the 
 forest laws. All these (except the two which do not survive) 
 will be found in Dr. Stubbs' Select Charters. 
 
 h. The activity of the Norman officials showed itself no- 
 where more clearly than in the mass of records which began 
 „ ^ to accumulate in the royal offices soon after the 
 
 Records 
 
 Norman Conquest. So enormous was this mass, and 
 so great the confusion into which it fell in later times, that, even 
 
 ' So closely was this procedure connected with the Assises, that an action under 
 it is usually, to the confusion of the student, also called an 'assise.' The name was 
 even given to the jury which tried it, and, ultimately, to the court in which it was 
 tried.
 
 24 A SHORT HISTORY OF ENGLISH LAW 
 
 now, much remains to be done before its contents can be thor- 
 oughly classified and known. It is sufficient to mention such 
 famous collections as Domesday Book, drawn up at the very end 
 of the Conqueror's reign ; the great rolls containing the feet of 
 fines {i.e. the summary of the transactions effected by the 
 judicial process known as a 'fine '), which begin with the reign 
 of Richard I, and, after a short period of hesitation, run on for 
 more than six centuries ; ^ the rotuli curiae regis, or records of 
 the King's Court, which, beginning in 1194, mark the definite 
 establishment of new tribunals by throwing oft' the De Banco 
 rolls, or records of the Court of Common Bench, in 1234, and 
 the Exchequer (plea) rolls in 1268, till they themselves remain 
 as the Coram Rege rolls, the records of the King's (or Upper) 
 Bench.- Then, too, there are the returns made to the great 
 inquest of knights' fees, in 1166, and to the inquest of tenants 
 in capite in 1210.^ More is to be learnt from these records of 
 business than from formal statements of custom or law. 
 
 c. Finally, there survive from this period two text-books of 
 
 „ „ . first-class importance, both written by officials, 
 Text-Books , , „ • , \ • ^ i ^ t ^- ^• 
 
 and, thererore, m days which drew no sharp distinction 
 
 between public and private capacity, probably treated as authori- 
 tative. These are the treatise attributed to Glanville, chief 
 justiciar of Henry II, on the procedure of the then new royal 
 tribunals, which may be dated about 1187; and the great work 
 on the Laws and Customs of England, by Henry of Bracton or 
 Bratton, Justice of the Court of King's Bench, and Archdeacon of 
 Barnstaple, in the latter half of the reign of Henry III. Glan- 
 ville's little book confines itself strictly to procedure ; and its 
 chief value is that it gives us, on the highest authority, the forms 
 of that new writ-process which, as we shall see, was to revolution- 
 ize the administration of justice in England. Bracton's larger 
 work, though it is likewise based on procedure, is much more ; 
 for it deals extensively also with what we should now call sub- 
 stantive law. Moreover, as has been hinted above, though it 
 
 1 Certain extracts from these rolls have been published, e.g. by Sir T. D. Hardy 
 (Rotuli de Oblatis et Finibus, Record Series). But these are not confined to the 
 entries relating to the judicial conveyances which afterwards became so important. 
 
 ' The first six years have been printed as Rotuli Curiae Regis, and abstracts from 
 1194 to 1324 as Abbreviatio Placitorum; both in the Record Scries. 
 
 ' Both these are printed in the Record Series edition of the Red Book of the 
 Exchequer; the former at pp. 18G-445, the latter at pp. 469-574.
 
 SOURCES OF THE COMMON LAW 25 
 
 was at one time under suspicion as a theoretical work, adapted 
 from the Roman Law, its character has been triumphantly 
 vindicated by the discovery, by Professor Vinogradoff, among the 
 treasures of the British Museum, of the very materials from which 
 it was composed. And these turn out to be notes of actual 
 cases decided by the King's judges, made, in all probability, from 
 the official records themselves, to which Bracton, as a judge, 
 had special access. These materials have been edited, with 
 masterly skill, by the late Professor Maitland, under the title 
 of Bracton's Note Book. ^ Bracton seems not to have been able 
 to resist the temptation of embellishing his work with flourishes 
 which might impress his readers with his literary accomplish- 
 ments ; and so, as has been said, there is a good deal of Roman 
 phraseology on the surface of his book. But the sub-soil will 
 be found to be of native earth. A good modern edition of the 
 text of Bracton is much to be desired. The pretentious issue 
 in the Rolls Series cannot be trusted ; and the sixteenth and 
 seventeenth century editions are before the days of critical 
 scholarship. 
 
 ' Cambridge University Press, 3 vols., 1887.
 
 CHAPTER III 
 FEUDALISM AND LAND LAW 
 
 IT is a lesson which cannot be too thoroughly learned, be- 
 cause without it an understanding of history is impossible, 
 that distinctions which to us seem elementary were un- 
 recognized in earlier stages of society. Every educated man now 
 distinguishes clearly between government and property. No 
 one supposes, for example, that the King can deal with the land on 
 which London stands, in the way in which he can deal with Sandring- 
 ham or any other of his private estates. And yet, in a sense, both 
 ' belong ' to him. At the present day, the difference is easily 
 understood ; and we find no difficulty in explaining it. We say 
 that Sandringham is the King's property, but that London is 
 only part of his dominions. The one he owns, the other he 
 governs. 
 
 Such experienced administrators as the Norman officials must 
 have realized the distinction in practice. They must have been 
 aware that, except at the certain risk of revolution, the King 
 could not attempt to treat the whole of England as his private 
 possession. Other claims could not be denied. William's fol- 
 lowers, including the officials themselves, wanted their share of 
 the new conquest. Many of the English thegns had accepted 
 William's authority on promises of good treatment. The 
 Church expected to be rewarded for her support of the Norman 
 claims. Finally, even the peasantry could not be treated as 
 mere chattels ; for the bulk of them were firmly rooted in the 
 soil, and nothing could have been gained, while much would 
 have been lost, by attempting to move them. 
 
 Nevertheless, William and his officials were quite determined 
 not to ignore the obvious fact, that the country was his by the 
 universally admitted right of conquest. Prudence might counsel 
 him to reward his followers with gifts of good things, and to 
 allow those English who had made their peace with him to
 
 FEUDALISM AND LAND LAW 27 
 
 remain undisturbed in enjoyment of their ancient rights. But, 
 somehow or another, WilHam meant to be a rich king 
 instead of a poor duke ; though he fixed a steady eye on the 
 Danegeld and other items of the old revenue of his predecessors, 
 he meant to have much more than that. Moreover, his career 
 as Norman Duke had been made a burden to him by the inde- 
 pendence of his vassals ; just as he himself had been a thorn in 
 the side of his nominal suzerain, the King at Paris. It was the 
 business of his advisers to find a scheme which should bring him 
 wealth, and, so far as possible, guarantee him against rebellion. 
 
 The solution of the problem which William's advisers offered 
 him was the application of the already recognized principle of 
 
 lordship to the occupation of land. It is quite un- 
 Tenure . . -ii .... 
 
 true to say, as is sometimes said, that in primitive 
 
 times land is the only form of property which is of legal impor- 
 tance. The law of theft, for example, which clearly implies 
 property in chattels, is much older than any land law ; and not 
 unnaturally. For, in primitive times, the trouble is, not to get 
 land, but to find men willing to work it ; whereas cattle, slaves, 
 weapons, jewels, and other movables, are hard to come by, and 
 jealously guarded. It is only when the growth of population 
 begins to make land, especially land already cultivated, an 
 object of desire, and when the accumulation of improvements 
 has rendered men unwilling to leave the old homesteads, that 
 land law becomes really important, and that eviction means 
 ruin. 
 
 This stage had been reached by England, as well as other coun- 
 tries of Western Europe, by the eleventh century ; and William's 
 advisers determined to take advantage of the fact. Every man, 
 noble and simple alike, should hold his land as a pledge of good 
 behaviour. His duties, to King, lord, and neighbour, should 
 be settled once and for all ; and, if he failed in them, he should 
 be turned out of his home and left to starve. It was a drastic 
 scheme ; but a conqueror holding a conquered country by the 
 force of the sword cannot afford to be squeamish. 
 
 The scheme is embodied in Domesday Book. Much of its 
 details are, no doubt, obscure ; it may well be that we shall 
 Domesday never Understand them fully. But one thing is 
 ^°°^ clear. The universal formula : A tenet de B, expresses 
 
 the new bond of society. The great noble, the tenant in capi'e,
 
 28 A SHORT HISTORY OF ENGLISH LAW 
 
 holds his many manors of the King ; if he plots rebellion, or 
 Knight fails to account for the geld assessed on his manors, 
 
 Service ^^ neglects to render his due. service, he loses his fief. 
 
 So with his under vassals, down to the lord of a petty manor, 
 the successor of the thegn ' who to the King's host five hides had.' 
 
 Below him, again, comes the group of peasants who, 
 
 and whose forefathers, from time immemorial, have 
 ploughed and reaped the fields of the township within the manor. 
 What precisely may be their duties towards their lord, and, 
 through him, to the King who is lord paramount of all holdings, 
 may take long to settle ; Domesday concerns itself, in this 
 respect, with little beyond the Danegeld. But when another 
 The Hun- great inquest is taken, nearly two hundred years after 
 dred Domesday, we shall see that, during this long period, 
 
 the manorial lord has gradually acquired rights to' dues 
 and services ' from his peasants, which yield him a substantial in- 
 come, and which have converted his office of lord into what we 
 now understand by property. How exactly the process had 
 worked, we do not know ; though Professor Vinogradoff has told 
 us much in his brilliant studies of the period.^ At any rate, 
 it seems that, as the result of that process, the ceorl of Saxon 
 England had become, in a sense, an 'unfree man' ; because a 
 substantial part of his time had to be spent in labouring on his 
 lord's domain, because he could not sell his land, or even desert 
 it, without his lord's permission, because his rights as a land- 
 holder were protected only by custom and his lord's court, not by 
 the common law and the strong hand of the royal tribunals. 
 
 Outside this strictly feudal hierarchy, the Norman officials 
 
 who framed our land law had to find places for two classes of 
 
 I Socage persons who could not easily be fitted into the social 
 
 pyramid. The first of these comprised the socagers, 
 at first, apparently, few in number, but growing rapidly in later 
 times, until they became, at least in importance, the foremost 
 class of land-holders. Perhaps, originally, they were substantial 
 ceorls who, because they kept clear of rebellion, could not be 
 deprived of their lands, and who, because they were too wealthy, 
 could not be treated as serfs. They were probably persuaded to 
 go through some form of ' commendation,' or nominal surrender 
 
 ' Villainage in England (1892) ; The Growth of the Manor (1905) ; English Society 
 in the Eleventh Century (1908).
 
 FEUDALISM AND LAND LAW 29 
 
 of their land to the King or other lord, from whom they received 
 it back in terms which satisfied the principle of tenure, but left 
 the tenant very free. It was not inconsistent with socage tenure 
 that the tenant should render personal service to his lord ; but 
 such. service must not be of a military character, for that was 
 reserved for knightly tenure, nor must it be of a degrading 
 character, such as that which too often bound the serf. On 
 the other hand, it must be certain, not only in amount, but in 
 time and mode of render ; so that the socager may really be 
 his own man. Socage service seems, in most cases, to have been 
 early commuted for a fixed money rent ; which, with the fall in 
 the value of money which set in soon after the Norman Conquest, 
 and continued for centuries, ceased to be worth collecting, and 
 the socager became, as nearly as possible, an absolute owner 
 of his land. The word ' socage ' is an insoluble problem. JNIost 
 speculators connect it with socn (jurisdiction) ; and it may be 
 that attendance at his lord's court was almost the only badge of 
 service by which a socager could be recognized as a tenant. 
 Again, there seems no reason why the socager should not have 
 had tenants of his own, for whom he might hold a court. But 
 this would hardly distinguish him from those who held by 
 knightly service. 
 
 Hardest of all was it to persuade the Church to accept the new 
 doctrine of tenure. For one thing, the holder of Church lands 
 Frankal- was in a different position from that of the ordinary 
 ^°^^ layman. If he was an individual, a bishop or a parish 
 
 rector, he was rather what we should now call a * trustee ' than a 
 beneficial owner. After his death, the land would go, not to his 
 children, but to his successor. Over him was the power of the 
 Church, which would take care that he did not dispoil the Church 
 of her rights. But it was equally likely that the land would be 
 claimed, not by an individual, but by a community or group of 
 individuals, such as a monastery or a cathedral chapter, whose 
 members might die, but which, as a community, went on forever, 
 and which could not, without grave scandal, be dispossessed of 
 its lands. INIoreover, it could not be expected of the bishop, 
 the rector, or the religious house, that he or it should render 
 military service, or plough and reap a lord's domain. The growing 
 recognition of the sanctity of the priesthood rendered it difficult 
 for the King's officials to impose burdens upon the Church land.
 
 30 A SHORT HISTORY OF ENGLISH LAW 
 
 And so we find recognized a fourth kind of tenure, viz. the tenure 
 m frankalmoign, which is really not tenure at all, because there is 
 no definite ' service ' to be performed on pain of forfeiture, but 
 which can, with some difficulty, be made to square, in theory, 
 with the doctrine of tenure. 
 
 Naturally, the so-called * tenure in frankalmoign ' was ex- 
 ceedingly popular with those who were so fortunate as to hold 
 land by it. Equally clear is it, that the royal judges and tax- 
 collectors regarded it with dislike, as unprofitable to the royal 
 power and revenue. It was never admitted that all the lands 
 of the Church were frankalmoign. Where the possession was 
 so ancient that all trace of its origin had been lost, as in the case 
 of the ordinary parish glebe, or, perhaps, the chapter lands and 
 those of the long established religious houses, the claim might 
 be admitted ; in other cases, it was for the claimant to prove that 
 the land had been given to him or his predecessors in ' pure and 
 free alms,' without any stipulation for definite service. If even 
 a fixed number of masses had been promised, the land was not 
 held in frankalmoign, but by * divine service,' i.e. as a species 
 of socage. The King won a great triumph when it was finally 
 conceded that even the endowments of the bishops' sees were 
 held by knight service,^ not in frankalmoign ; and that therefore 
 the bishops sat as barons in the Council of the Magnates. It was 
 also clear, that if a religious house acquired land which was held 
 by the donor by knight service or socage, the land remained 
 liable to distress for failure to render the services due from the 
 donor ; even though the latter had given the land to the monas- 
 tery in ' free alms.' - The tenant in frankalmoign appeared to 
 win his greatest victory when it was admitted, by the Constitu- 
 tions of Clarendon,'' that if an estate was really proved to be 
 frankalmoign, it was beyond the jurisdiction of the royal courts 
 — all that the latter could claim was the trial of the preliminary 
 question whether such was in fact the case {Assisa Utrum). 
 But, in this respect, as in others, the settlement of 1164 was not 
 permanent ; and, ultimately, the royal courts succeeded in oust- 
 ing the Church courts from all pleas concerning land. Towards 
 
 'Constitutions of Clarrndon, cap. XI (S.C. 139). 
 
 'These scrvie^i's wore 'forinscc,' i.e. not rendered to the immediate lord. The 
 under-tenant who had been forced to render them had a claim to indemnity against 
 the 'mesne lord,' who ought to have satisfied them. 
 
 » Cap. IX (S.C. 139).
 
 FEUDALISM AND LAND LAW 31 
 
 the end of the period, the Church sustained an even greater 
 loss. The policy of Mortmain made it difficult for her to acquire 
 lands at all. But the full development of that policy belongs 
 to the next period.^ 
 
 Upon the principle of tenure, thus applied to all ranks of society, 
 the royal judges, and their imitators in the feudal courts, began 
 Incidents of to build up that elaborate superstructure which 
 Tenure ^^^ ^j^ centuries attempted to express, with ever 
 
 diminishing reality, the Englishman's notions of property in 
 land. At bottom it was, in theory, a cojitract system ; because, 
 in theory, the terms of each holding were fixed by the original 
 grant to the tenant himself, his ancestor or predecessor. In 
 practice, these terms, at any rate in the absence of express stipula- 
 tion, were settled by rules of ever increasing sharpness, which 
 prescribed the ' incidents of tenure ' in each case, i.e. those 
 mutual rights and duties of lord and tenant which attached to the 
 fact of their relationship. Some of these ' incidents' survive, 
 at least in theory, to the present day, and are among the first 
 things learnt by the student of real property law. Others have 
 become legally or practically obsolete ; but a brief mention of 
 them can hardly be omitted from any account of the history of 
 English law. 
 
 One preliminary caution, of great importance, should be 
 given. Tenures, as has been said, fall into two unequally 
 Common divided classes — the free and the unfree. For 
 Locaf ° the present purpose, the importance of the distinction 
 
 Custom \[qq ijj i\^Q fact, that the rules of the former were settled 
 
 by the decisions of the royal courts, which held good throughout 
 the realm ; and that they were, therefore, with rare exceptions, 
 uniform and universal. The tenant by knight service could not 
 devise his land, at least directly, whether it lay in Northumber- 
 land or Essex. When the rules of inheritance once became 
 settled, the eldest son of the socager succeeded to his father's land, 
 whether it was in Gloucestershire or Devonshire ; unless the 
 land were subject to some well-recognized exception, such as 
 that of gavelkind or burgage. But the tenant in villenage was 
 governed, in respect of his holding, by the local custom, which 
 differed from manor to manor ; and, despite modern legislation, 
 
 1 The first definite sign of the policy appears in the Charter of 1217, cap. 43 
 (S.C. 347). But the full principle is not enunciated till 1279 (7 Edw. I, st. II).
 
 32 A SHORT HISTORY OF ENGLISH LAW 
 
 his successor, the copyho lder, is, in the main, in the same position 
 to-day. Even the fact that the King's courts at last, towards the 
 end of the fifteenth century, began to protect the copyholder's 
 rights, did not alter this state of things ; for the royal judges, no 
 longer enjoying the freedom of their predecessors of the twelfth 
 and thirteenth centuries, deemed themselves bound by the mano- 
 rial customs, save where, in rare cases, those customs were so 
 opposed to all sense of fairness as to be held manifestly ' unreason- 
 able,' Consequently, whilst knight service, socage, and, in so 
 far as it was a tenure at all, frankalmoign, became ' common law 
 tenures,' villenage, or, as it was later called, ' copyhold^lJias 
 always been treated as a ' local and customary tenure.' Never- 
 theless, though with many differences of detail, the local tenures 
 were framed on the common law model ; and so it is possible, 
 wdth some reservations, to generalize about the incidents of 
 all. 
 
 Loyalty to one's lord was of the essence of the feudal tie of 
 tenure ; and it was symbolized in the oath_ of fe^alty exacted 
 Fealty and on the creation of all estates, save possibl}^, in frankal- 
 Homage moign. The form which it took at the beginning of 
 the next period is given in a document attributed to the year 
 1323, and printed among the Statutes of the Realm. ^ It is a 
 general promise to observe the terms of the relationship ; and 
 refusal to make it was, doubtless, treated as a renunciation of 
 the tie. The ceremony of homage was rendered only to the 
 lord of whom the tenant held his chief estate ; possibly only 
 when he held an estate of inheritance. It expressed a closer 
 and more personal tie ; ^ and comprised a special reservation 
 of loyalty to the King. 
 
 It was the symbol of lordly power to hold a court or assembly 
 of vassals; and the tenant who refused to minister to his lord's 
 Suit of pride by attending his summons was guilty of con- 
 
 ^°^^ tempt, if not defiance, of his lord. Into the vast 
 
 question of private jurisdiction in England, we cannot enter; 
 it ceased to be of importance in free tenure after the royal courts 
 were firmly established. But, for a similar reason, suit of court 
 remained, and still remains, a liability of copyhold tenure.' 
 
 The special importance of service was, as we have seen, that 
 the nature of it determined the nature of the tenancy. Any 
 
 ' 17 Edw. II (,Modus Faciendi Homagium et Fidelitatem). ' Ibid.
 
 FEUDALISM AND LAND LAW 33 
 
 liability to military service stamped the holding as tenure ])er 
 77nlitiani, and so on. As is well known, it was a marked 
 peculiarity of English tenure that all miHtary service 
 was rendered to the King alone, and could only be 
 demanded by the King's writ. But when military service, like 
 all other services, became commuted for a money rent (' scutage ' 
 or ' escuage '), it found its way into the pockets of the immediate 
 lord, and was distinguished from other money rents only as 
 entitling the lord to the specially profitable incidents of knight- 
 service tenure. 
 
 The most striking accompaniment of service is the right of 
 the lord to seize the chattels on the tenement to enforce render 
 ^. of it. We have seen,^ that this is a survival of a 
 
 Distress 
 
 once universal process of self-help, which has been 
 abolished in most other cases. In the period under review, it 
 was not a complete remedy ; for the lord could not sell the chattels 
 distrained to satisfy his claim ; as its name implies, ' distress ' was 
 merely a means of putting on pressure. But it was of peculiar 
 value to the lord ; for, to a certain extent, it made him indifferent 
 to the personal character of his tenant. If the latter chose to 
 * sub-infeudate ' the land to an under-tenant, the lord's remedy 
 was not, in theory, affected. The service due to him was 'forin- 
 sec,' so far as the under-tenant was concerned. But it could 
 be distrained for, all the same, because it attached to the land ; 
 and the remedy of the under-tenant whose beasts had been seized 
 for his immediate lord's default was to pay the over-lord's claim, 
 and deduct the amount from the ' intrinsec ' service which he 
 owed his immediate lord, or recover it by a Writ of Mesne. 
 Thus ' rent-service,' as distinct from other rent charged on land, 
 early acquired that peculiar security which it has never since 
 entirely lost. 
 
 In addition to his regular and stipulated service, the tenant, as 
 evidence of his loyalty, might be called upon to render occasional 
 Aids and assistance, under _tlm_jiaine- of aidSt, to his lord in 
 moments of urgency. As is well known, the number 
 of these moments, and the calls which they made on the tenant's 
 purse, were subjects of keen dispute. The former point, at 
 least so far as the royal example was concerned, was settled by 
 the well-known clause of the Great Charter ; ^ the latter by 
 
 1 Ante, p. 8 = Cap. XII (S.C. 29S).
 
 {»/ 
 
 34 A SHORT HISTORY OF ENGLISH LAW 
 
 statute early in the next period.^ The relief was payable on 
 the succession of an heir to his ancestor's estate ;ai^d is interest- 
 ing as a link in the obscure process by which the originally 
 personal relationship between lord and vassal developed into a 
 mere form of property. The tenant in villenage paid a ' fine on 
 descent ' ; while his lord was also usually entitled, under a claim 
 of ' heriot,' to seize the best beast or other chattel of the dead 
 ancestor. The amount of the relief in knight serviGe-Jtas fixed 
 ^*^ by the Great Charter ; ^ in socage it was said, by a so-called 
 statute of 1300,^ that the tenant, on succeeding, paid two years' 
 rent instead of relief. The fines paid by the heir in villenage were 
 either ' arbitrary,' or fixed by the local custom. 
 
 The most oppressive incidents of tenure were the right of 
 the lord to the custody of the person and estate of the infant 
 ^ , .. heir of his deceased tenant, and to the disposal of 
 
 Wardships , , . . . „...., 
 
 and such heir ni marriage. Originating in the reasonable 
 
 amag claim of the lord that his dues of service should not be 
 lost by the inability of an infant to render them, and that an in- 
 fant heiress should not, by marrying the lord's enemy, introduce 
 a foe into his household, these incidents rapidly developed into 
 means of extortion. The lord rendered no account, either of sur- 
 plus rents or of the money received for his ward's hand. By an 
 unfortunate wording of a clause in the Great Charter,^ intended to 
 control abuses, the claim of * marraige ' was actually extended be- 
 yond females to male heirs ; and the two incidents continued, in 
 theory at least, to disgrace the law, until they were abolished in 
 1660.^ They were peculiar, apparently, to knight-service tenure ; 
 7of~in socage the guardian (not the lord, but the next-of-kin who 
 could not inherit) was held strictly to account for all profits ; ^ 
 while there seems to be little trace of similar incidents in villen- 
 age.^ Of course, they had no parallel in frankalmoign. 
 
 Whether or not the strict theory of tenure recognized the claim 
 of the tenant's heir to succeed to his ancestor's estate, we may 
 
 > 3 Edw. I (1275) c. 36 (under-tenants) ; 25 Edw. Ill (1352) St. V, c. 11 (tenants 
 in capite). 
 
 «Cap. II (S.C. 297). 
 
 ' 28 Edw. I (Statute of Wards and Reliefs). 
 
 * Cap. 6 (S.C. 297). 
 
 « By the 12 Car. II c. 24. 
 
 « 52 Hen. Ill (Marlborough, 1267), c. 17. 
 
 ^ Perhaps the ' merchet,' or marriage fine of the villein's daughter, may be 
 regarded as a 'value of marriage.'
 
 FEUDALISM AND LAND LAW 35 
 
 be very sure that the socager and the villein would not have 
 submitted without a severe struggle to any legal rule which 
 . attempted to deprive them of the land which their 
 
 forefathers had ploughed from time immemorial. The 
 very wording of the custumal of 1299, before alluded to/ suggests 
 that the socage heir was with difficulty brought to recognize 
 the fitness of a ' relief ' ; and that, in his case, it was a question 
 of the rules to be followed, rather than any question of the right 
 of inheritance generally. There can be little doubt, that the 
 general English rule survives in the gavelkind principle of equal 
 division among males in the nearest degree; and Glanville 
 seems to regard it as in force for socage in his day.^ On the 
 other hand, no such antiquity consecrated the claim of the heirs 
 of military tenants ; and reason weighed somewhat heavily 
 against the transmission to heirs of military fiefs. Nevertheless, 
 it is clear that, at least by the time of the Great Charter, in- 
 heritance of such estates is fully recognized as normal. What 
 is more, the rule of primogeniture among males, not unreasonable 
 for military tenure, early succeeded in establishing itself also for 
 socage tenants, in lieu of the old rule of equal division among 
 males. Inheritance in villeinage remained, and remains, a 
 matter of local custom. But the rule that the grant of land 
 ' without words of inheritance ' confers only a life estate, a rule 
 which still prevails, is a significant reminder of the original 
 characteristics of tenure. 
 
 Escheat is rather an inevitable consequence, than an incident, 
 of the principle of tenure. When the interest, or ' estate ' 
 J. . granted, or supposed to have been granted, to the 
 
 vassal came to an end, the land would naturally 
 return to the lord. If the estate was for life, it came to an end on 
 the death of the man or men for whose lives it had been granted. 
 These, of course, need not have been the tenant or tenants 
 themselves ; the estate yur autre vie was quite common in this 
 period. Where the estate was inheritable by the tenant's heirs, 
 it came to an end when these failed. In either case, the lord 
 resumed the land ; it was said to ' escheat,' or fall back, to him. 
 Before estates of inheritance became common, and especially 
 among the great tenants in capite of the Crown, escheats were a 
 
 1 Ante, p. 34. 
 
 » Lib. VII, cap. 3.
 
 3G A SHORT HISTORY OF ENGLISH LAW 
 
 valuable source of revenue ; and the Crown employed regular 
 officials and held periodical enquiries, or ' inquests,' to discover 
 and enforce them. In later days, the term 'escheat' was em- 
 ployed strictly to designate the falling in of estates through actual 
 failure of heirs, or through the fictitious failure ca,used by the 
 doctrine of corruption of blood by attaint of felony. The land 
 which went back to the lord at the end of a life estate was said to 
 ' revert ' ; and the lord's interest during the running of that 
 estate was called a ' reversion.' But there is no difference, in 
 principle, between the two cases ; the difference of terms was 
 brought about by certain arbitrary changes in the law of aliena- 
 tion. 
 
 This brings us, in conclusion, to a question of first-rate im- 
 portance, to which this period gives no certain answer. Might a 
 tenant alienate his holding? At the present day, 
 such a question would appear to be absurd ; and the 
 man who ventured to suggest a negative would lie under a heavy 
 07U{S of proof. In the period with which we are dealing, the 
 presumption was all the other way. The peasant held his land as 
 a member of a. group ; perhaps, as has been hinted, it was not a 
 definite area of land at all, but a ' shifting severalty,' i.e. a share 
 which changed from year to year, or from ' course ' to ' course ' 
 of husbandry. His co-farmers would, naturally, object to the 
 introduction of a stranger, at any rate without the full agree- 
 ment of the group. This is the retrait coiniimnal. Also his 
 heirs, who looked forward to succeeding to the ancestral claims, 
 would object to alienation. This is the retrait lig^nager: prob- 
 ably it affected the socager as well as the villein. Finally, 
 and especially in the knightly tenures, the lord might strongly 
 object to a change of vassals ; there is even some presumption, 
 and, what is more, evidence, that the tenant might object to have 
 a new lord thrust upon him — ^ to be ' attorned,' or handed over, 
 to a strange lord. This is the retrait feodal. 
 
 Evidently these considerations puzzled the authorities a good 
 deal ; and their attitude was hesitating. 
 
 In spite of some doubts, the practice of subinfeudation rapidly 
 
 made its way. By this process the tenant did not, in theory, 
 
 Subinfeuda- impose upon his lord a new vassal, or deprive his 
 
 heir of a fief. He merely, as a modern lawyer would 
 
 say, ' sub-let ' the land, and drew the rents instead of cultivating
 
 FEUDALISM AND LAND LAW 37 
 
 t he s oil, or collecting the peasant's dues, on his own account. 
 The ver}^ structure of feudalism must have rendered this process 
 familiar ; and even the King seems to have regarded it as a 
 matter of course.^ Nevertheless, it was, in fact, open to objec- 
 tions, from the point of view of the original lord. It is one 
 thing to have a tenant who holds land ' in_d£in£siie ' ; he is 
 there, his doings and happenings are known, the ' incidents ' 
 of his tenancy can be promptly claimed. With a tenant who 
 holds ' in ser vice,' it is otherwise. True the land is there ; and 
 the beasts of the actual occupant can be distrained for 
 withholding of service. But if it comes to escheat or forfeiture, 
 the under-tenant may say that his estate w^as lawfully created, 
 and that, so long as he renders the services reserved on the crea- 
 tion of his tenancy, he cannot be disturbed. Now these services 
 may be considerably less than the services reserved on the original 
 grant — a fact which will also be productive of loss to the over- 
 lord in enforcing his claims of ' wardship ' and ' marriage.' ]\Iost 
 especially will this be the case if the sub-grant has been for an 
 estate of inheritance ; for the process may go on indefinitely, 
 and the original grantor may find himself further and further 
 divorced from the soil. Nevertheless, in spite of some evidence 
 of protest,^ the right of ' su^Hiif eudationj .a,pp£iars . to have been 
 generally admitted during this period. Bracton, in a well-known 
 passage,^ strongly denied that it was wrongful. 
 
 The total alienation of the tenant was regarded with more 
 disfavour. This was a complete rupture of the feudal tie, and, 
 in effect, deprived both lord and heir of valuable 
 rights. It was, probably, to this kind of alienation 
 that Glanville alluded, in the passage in which he lays down 
 somewhat severe restrictions on its exercise.* He distinguishes 
 between the hereditas,oT.inhQnted estate of the tenant, and his 
 questum or newly acquired estate. In respect of the latter, the 
 tenant has a fairly free hand ; in respect of the former, his rights 
 are much more limited. He can alienate a ' reasonable ' part 
 of it for proper purposes, such as the endowment of a son or 
 
 1 This appears to be a fair inference from the Inquest of Knights Fees in 1166 
 (Red Book of the Exechequer). But it is also implied in Domesday Book. 
 
 2 Great Charter of 1217, cap. 39 (S.C. 346). Possibly, however, the clause refers 
 to substitution. 
 
 ^Lib. II, cap. XIX (1,2), 
 * Lib. VII, caps. 1, 2.
 
 38 A SHORT HISTORY OF ENGLISH LAW 
 
 daughter, the rewarding of faithful service, or even the satis- 
 faction of the claims of religion or charity. But, in the latter 
 case, the alienation must be made when the tenant is^^m full 
 health ; Glanville has a strong suspicion of death-bed gifts. 
 Of course, the devise of lands, as we understand it, was not rec- 
 ognized in this period ; probably because the new doctrines about 
 * livery of seisin ' made it impossible to set up a title dependent 
 on an oral or merely written gift. But even the formal convey- 
 ance to take effect on death was regarded with suspicion, and 
 required confirmation by the heir.^ 
 
 1 Glanville, Lib. VII, 1. 'In extremis tamen.' The language suggests that 
 the rule may possibly be altered in the near future ('hactenus').
 
 CHAPTER IV 
 IMPROVED LEGAL PROCEDURE 
 
 THE second great triumph, not unworthy to rank beside 
 the creation of a land law, which the royal officials achieved 
 during this period, was the establishment of a new set of 
 royal tribunals, with a definite legal procedure. 
 
 In order to understand the greatness of this achievement, 
 we must once more put from us modern ideas, and remember that 
 the assumption, now everywhere prevailing, that the adminis- 
 tration of justice is the exclusive function of the Crown or State, 
 is the result of a long period of bitter struggle, nowhere better 
 illustrated than in English legal history. In so far as there was 
 any regular ' administration of justice ' at all in England in 
 the latter half of the eleventh century, it took place in the 
 local moots of the Hundred and the Shire, possibly, 
 
 Local Moots , • i i n i. i i o % c 
 
 in trmmg matters, m the hail or the thegn. bo tar from 
 desiring to abolish the jurisdiction of the local moots, the kings, 
 at first at any rate, were constantly insisting that they should 
 be held as of old.^ In the Laws of Cnut, it is formally laid 
 down that no one is to bother the King with his complaints, 
 so long as he can get justice in the Hundred.^ Even before the 
 Conquest, the land was covered with thegns, judices regis as 
 they are called in the Leges Henrici; ^ and the latter title 
 suggests that they exercised a certain amount of local jurisdiction. 
 Church After the Conquest, as has been said, the Church 
 
 Courts courts rapidly developed a large business, both 
 
 * criminal ' and ' civil ' ; they dealt with such offences as, not 
 being recognized as wrongs by the lay tribunals, were yet, in the 
 view of the Church, sins against the laws of God. Examples 
 are, perjury, fornication, usury, defamation, neglect to pay tithes 
 
 ^E.g. S.C. 84 (William I). 104 (Henry I). 
 
 *Cnut, II, 17 (Liebermann, 320). For an earlier enunciation of the same 
 principle, see Edgar, III, 2 (Liebermann, 200). 
 'Art. 29 (Liebermann, 563).
 
 40 A SHORT HISTORY OF ENGLISH LAW 
 
 and other dues of the Church ; the Church courts dealt also 
 with all questions (save one) ^ of legitimacy or divorce. Then too. 
 Feudal there were the feudal courts, which, feeble as they 
 
 Courts "svere beside some of their great models on the Con- 
 
 tinent, yet flourished in large numbers during the whole of 
 Courts this period. Finally, the charters granted to mer- 
 
 Merchant chant gilds and burgesses expressly or by implication 
 recognized the existence of market and other courts, in which the 
 Law Merchant and not the Common Law was administered.^ 
 Even the King's own judges had eventually to admit that to every 
 market a court of piepowders (pieds pouches) was appendant as of 
 common right. It was only in the face of keen rivalry that the 
 royal jurisdiction won its way ; and its ultimate triumph, com- 
 plete and unquestioned, over its many rivals, is the result of its 
 inherent superiority, and a striking proof of the ability of the 
 men who organized it. Again we need not suppose their motives 
 to have been very lofty. Legal business has, from the beginning 
 of time, been profitable — to those who have conducted it ; be- 
 cause it is concerned with things that touch men's passions very 
 deeply, and because men are willing to pay, and pay highly, for 
 wisdom and skill in the conduct of it. The real merits of the 
 Norman lawyers were, not altruism, but ability, energy, and 
 enthusiasm for their work. 
 
 One of the first definite steps taken was to develop that branch 
 of the royal claims which, as has been said,^ was the beginning 
 Criminal of criminal law in the modern sense. By the famous 
 rocedure Asslse of Clarendon,^ issued in 1166, there was 
 substituted for the ancient and somewhat casual ' hue and cry,' 
 a regular, formal ' presentation,' or indictment, before the 
 King's justices and sheriffs, by twelve sworn men from the 
 Hundred and four from the township, of robbers, murderers, 
 thieves, and their accomplices. Apparently, a very full shire- 
 moot was to be assembled for the purpose, and a sort of pre- 
 liminary enquiry held by the sheriff, who was to remand under 
 
 * The exception was the well-known 'plea of special bastardy,' which involved the 
 question of post-legitimated children. The King's Courts could not trust the 
 Church to accept the famous clause of the Statute of Mcrton (cap. 9). 
 
 * The records already edited by Professor Gross (S.S. Vol. 23) 1238 (Torksey 
 Piepowders. App. I), show that such courts were in working order as early as the 
 first half of the thirteenth century. 
 
 ' Ante, p. 10. 
 
 * Given in full in Stubbs, S.C, at p. 140.
 
 IMPROVED LEGAL PROCEDURE 41 
 
 custody or bail all against whom there seemed to be a priind 
 facie ease, to await the arrival of the justices. The accused 
 were then to be given a rough sort of trial. If they had been 
 hitherto of good repute, they were allowed to clear themselves 
 by the ordeal of water ; if they were of bad fame, or if they failed 
 at the ordeal, they were, apparently, mutilated and turned adrift, 
 their chattels being forfeited to the Crown. Ten years later, 
 after the Inquest of 1170^ had revealed the iniquities of the 
 sheriffs, the process was made more definite and severe by the 
 Assise of Northampton in 1 1 76.^ To the list of offences indictable 
 under the Assise, were added treason, arson, and false coining. 
 Even if the accused satisfied the ordeal, he was, nevertheless, to 
 give pledges for his future good behaviour ; if his character was 
 bad, he was even to abjure the realm, though he might take his 
 goods with him.^ If he failed at the ordeal, or was not entitled 
 to it, he was to lose both hand and foot, be banished the realm, 
 and, of course, forfeit his goods. As will shortly appear"* the 
 disuse of the ordeal introduced the modern method of trial by 
 jury for criminal cases, and thus completed the scheme of criminal 
 procedure in outline. But the Assises of 1166 and 1176 definitely 
 marked off the ' felony ' or public offence entailing forfeiture of 
 goods and banishment, not only from the mere private wrong, 
 but also from those minor misbehaviours, or misdemeanours, 
 which were punished in the local moots.^ These appear to have 
 remained in their old vague position until the later development 
 of the local Justices of the Peace, when they became subject to 
 true criminal prosecution. By the end of the twelfth century, 
 conviction of felony worked a forfeiture, not only of chattels but 
 of the offender's land. But, though King John had claimed 
 otherwise,^ the forfeiture of land did not, save in the case of 
 treason, go to the Crown, but, as an ' escheat,' to the tenant's 
 immediate lord ; subject to the royal right of ' year, day, and 
 waste.' ^ 
 
 1 S.C. 147. (Note the reference in art. 5 to the Assise of Clarendon.) 
 
 2 S.C. 150. 
 
 ' Art. 1. There is a puzzle here. If the accused was of bad fame, he ought not 
 to have been allowed to go to the ordeal at all. (See Assise of Clarendon, art. 12.) 
 
 *Post, pp. 51, 52. 
 
 * Assise of Clarendon, art. 5 (S.C. 144). 
 
 6 Magna Carta, cap. 32 (S.C. 300). 
 
 ^ I.e. the right of the Crown to wreak its vengeance on the offender by plunder- 
 ing his land for a year. The right was usually bought off by the lord who claimed 
 the escheat.
 
 42 A SHORT HISTORY OF ENGLISH LAW 
 
 In the matter of private disputes, the royal officials achieved 
 their revolution, partly by putting still further limits to extra- 
 CivU judicial procedure, partly by tempting the litigants, 
 
 Procedure with offers of superior remedies, to resort to the royal 
 jurisdiction. 
 
 The efforts of the later English kings appear to have been 
 successful in restricting the feud to cases of personal violence, 
 including theft. In such cases, not unnaturally, 
 the lust of vengeance was keenest ; and, under the 
 name of an appeal, the blood feud, reduced to order and system, 
 and limited to the parties immediately interested, remained, at 
 least until Bracton's day, the ordinary remedy.^ The introduc- 
 tion of true criminal procedure, just described, set up a very 
 powerful rival of the private ' appeal ' ; for, as will be remem- 
 bered, the ' felonies ' of the Assises of Clarendon and Northamp- 
 ton comprised just those very offences of violence which were 
 the ordinary subject of appeals. And, inasmuch as the conse- 
 quences of a successful appeal were much the same as those of a 
 criminal prosecution, viz. death or mutilation of the offender, 
 and forfeiture of his land and goods, it was obvious that appeals 
 and indictments tended to become alternative methods of proce- 
 dure for the same offences. In fact, the well-known expression 
 * appeal of felony ' is almost proof conclusive of the common 
 ground ; though whether the term ' felony ' itself originated 
 with the royal officials or in popular usage, seems to be an in- 
 soluble problem. 
 
 The chapters in Bracton's book, just alluded to, show pretty 
 clearly the steps taken by the royal judges to discredit appeals 
 Restrictions and substitute for them the newer process of indict- 
 on Appeals u^gnt. Here again, the motive is obvious. No doubt 
 it was a good thing to put down what was, in fact, private war ; 
 it was still better, from the point of view of the royal judge, to 
 secure the offender's goods for the Crown. And so the man who 
 was ' appealed,' or challenged, was encouraged to apply to the 
 royal judges on every kind of side issue. He might plead every 
 sort of objection, or exceptip, that he could think of, e.g. that the 
 ' hue and cry ' had not been properly conducted, that the ' words 
 of appeal,' or formal accusation, had not been pronounced, or 
 
 ' Lib. Ill, cap. 19-34. The appeals mentioned by Bracton arc those of homicide, 
 mayhem, false imprisonment, robbery, arson, rape, and larceny.
 
 IMPROVED LEGAL PROCEDURE 43 
 
 were wrong in some petty detail, that the accuser, or ' appellor,' 
 did not show his wounds to the coroner, that the demand was a 
 stale one, or, generally, that it had been put forward ' of hatred 
 an^ malice ' {de odio et atid). Thereupon the royal judges 
 would hold, by a process to be later alluded to, a sort of prelimi- 
 nary enquiry into the truth of the ' exception ' or excuse ; and if 
 the accused, or ' appellee,' was successful in this enquiry, the 
 appeal would be sternly put down by the King's officers. A 
 somewhat obscure passage in the Great Charter of 1215^ is now 
 generally construed as a promise by the King that an appellee 
 shall in the future be entitled, gratuitously and as a matter of 
 right, to an inquest de odio et atid. If this view be correct, and 
 the clause was observed, it is tolerably clear that, by the begin- 
 ning of the thirteenth century, an appellee who wished to avoid 
 battle could do so. Another significant passage in Bracton ^ 
 suggests, that if the King's itinerant justices came into the 
 county after the commission of the alleged offence and before 
 the raising of the appeal, the right of private vengeance was sus- 
 pended until the alleged offender had stood his trial at the King's 
 suit.^ If this was so, we can well understand that the * appeal,' 
 though in theory not abolished until 1819,^ was practically 
 becoming obsolete at the end of the thirteenth century. 
 
 The great alternatives offered to the litigant for the older 
 Alternative remedies of the popular tribunals were the writ of 
 Remedies summons and trial by jury. 
 
 The writ, or breve, as its names imply, is a short written 
 document ; but, pre-eminently and almost universally, a short 
 Writ of written command of the King. In the great majority 
 
 Summons yf early cases, it was addressed to a royal official, 
 and was merely, as we should say, an administrative order. 
 At first, it was used for all kinds of purposes, not specially 
 connected with litigation ; the King summoned his army and his 
 Great Council by writ, bade his officials levy taxes by writ, and 
 so on. But, very soon after the Conquest, we begin to see writs 
 issued from the royal Chancery for the purpose of influencing legal 
 
 'Cap. 36(S.C. 301). 
 
 2 Lib. Ill, cap. 24, 2 (fo. 145). 
 
 ' On the other hand, it is clear from later law that acquittal at the King's suit 
 was no bar to an appeal. 
 
 * After its well-known dramatic revival in Rex v. Thornton. The abolishing 
 statute is 59 Geo. Ill, c. 46.
 
 44. A SHORT HISTORY OF ENGLISH LAW 
 
 proceedings; and, what is even more snggestive, we find that 
 these writs are ' purchased ' (probably at substantial fees) 
 by litigants themselves. What were the attractions? 
 
 In the first place, they applied to the accused person a stronger 
 pressure than any that could be brought to bear without them. 
 The summons by the party aggrieved was probably 
 a very formal and complicated affair, delivered by 
 word of mouth in the presence of witnesses ; ^ and any flaw in 
 it probably justified the accused in treating the proceedings 
 with contempt. Even if it were correctly delivered, with proper 
 words and at a proper time and place, it might prove inefficacious ; 
 and the recent restrictions on the right of distress, previously 
 alluded to, rendered it dangerous for the accuser to take the law 
 into his own hands.' But the writ of summons, addressed to the 
 sheriff, bade that official relieve the accuser (or ' plaintiff ' as we 
 may now call him) of the fruitless task of trying to getjbbe de- 
 fendant before the court; and , directed ^m (the sheriff) to 
 summon the defendant ' by good summoners.' Now it is one 
 thing to disobey the summons of a private person ; and quite 
 another to disobey the summons of the King. And though, in 
 later times, the curious hesitation of a primitive tribunal to 
 proceed in the absence of a defendant still allowed much scope 
 for evasion, it is quite clear that the royal official had means 
 of compelling attendance which were not exerciseable directly 
 by the private litigant. 
 
 But a second and even greater service was performed by the 
 new writ-procedure. Hitherto, the definition of offences had 
 
 _ ^ . . been left to the ' doomsmen ' of the court, in whose 
 
 Definition i i- 
 
 memory was supposed to lie a store of mimemorial 
 
 wisdom. There were no written records ; nothing to which 
 
 the aggrieved party could turn, to see whether the court would 
 
 give him a remedy. Now, he knew that if he could get his 
 
 complaint described in a royal message, he could hardly be met 
 
 by the defence that such complaint ' disclosed no cause of action.' 
 
 Doubtless there would remain scope for discussion, as to whether 
 
 ' The causes of the formal and saero-sanct character of early legal procedure are : 
 
 (1) The nooessity for relying on the memory before the introduction of writing; 
 
 (2) the ignorance of primitive litigants, who cannot be trusted to distinguish be- 
 tween spirit and letter. 
 
 ' These restrictions culminated in the reign of Henry II, in the action of 'replevin.' 
 (Glanville, XII, 12, 15.) The date is significant.
 
 IMPROVED LEGAL PROCEDURE 45 
 
 the plaintiff could bring the defendant within the terms of the 
 writ. But it was a great step gained to have it declared, or at 
 least implied, that, if the facts were as alleged, the plaintiff had a 
 good ground of complaint ; and this result was achieved when it 
 was clear that any one could have, as of course, a writ of Debt, or 
 Trespass, or the like. 
 
 That this point had been reached before the end of the twelfth 
 century, is clear from Glanville's famous treatise. It is obvious 
 The Regis- that this book is speaking throughout of well-estab- 
 ter of Wnts \[^\^q^ procedure, open to any litigant on payment of 
 the proper fees. It is even possible to classify its examples. 
 They are either writs ' original,' i.e. writs destined to com- 
 mence legal proceedings,^ or ' judicial,' such as are merely 
 incidental to the carrying on of proceedings already begun.^ The 
 latter are, it may be said, ' mere machinery.' The former, when, 
 in course of time, they were collected into a Register, of which 
 more or less correct copies were in circulation, really became a 
 dictionary of the Common Law. Even the so-called * preroga- 
 tive ' writs, which were only issued by special leave of the court, 
 shared this character ; ^ because, if satisfied that a case has arisen 
 to which they are applicable, the Court would certainly allow 
 them to issue. The invention of writs was really the making of 
 the English Common Law; and the credit of this momentous 
 achievement, which took place chiefly between 1150 and 1250, 
 must be shared between the officials of the royal Chancery, 
 who framed new forms, and the royal judges, who either allowed 
 or quashed them. Before the end of the thirteenth century, 
 the stream of new writs began to run dry. As we shall see, 
 an attempt was made to revive it in a famous statute of 1285 ; ^ 
 but the effort was not wholly successful. Other methods of de- 
 claring new law took the place of the Register of Writs. 
 
 The need of a new method of trial was, at the beginning of 
 the twelfth century, quite as urgent as a new method of summons. 
 Old Roughly speaking, the old English courts knew of three 
 
 of Trial methods ; and all three were, obviously, unworthy of a 
 
 1 E.g. the 'Writ of Right' (Lib. I, 6). 
 
 ^E.g. the 'Writ of View' (Lib. II, 3). In later days, these were issued by the 
 court having charge of the case, not by the Chancery. 
 
 3 The distinction appears in the Provisions of Oxford (Chancellor's Oath, S.C. 
 389). 
 
 * Statute of Westminster the Second (13 Edw. I, c. 24).
 
 46 A SHORT HISTORY OF ENGLISH LAW 
 
 civilized system of justice. The accused against whom no 
 suspicion rested, was entitled to wage his law, i.e. to get a proper 
 number of his friends (the number varying with his social rank) 
 "to swear in a prescribed form, and ' with united hand and mouth/ 
 that he was innocent. This process, which probably dates 
 back to the days when the kindred of the accused were prepared 
 to fight the ' suit ' or supporters of the accuser, was rapidly 
 becoming a farce, as the reality of its meaning became lost. In 
 the next period, if a defendant could prove that he was entitled 
 to resort to it, his opponent usually gave up the case as hopeless. 
 There was, however, no direct attempt to abolish it in this period, 
 save in the case of a man indicted, under the Assises of Clarendon 
 and Northampton, at the King's suit. Such a person could not 
 wage his law.^ 
 
 Neither, in any case, could the man against whom lay a pre- 
 sumption of guilt, e.g. the man who was taken red-handed, or 
 on whom the stolen property was found, w^age his law. If such a 
 man were not prepared to fight his accuser, his only alternative 
 was a resort to the ordeal, i.e. to invoke a miracle ; and, inas- 
 much as the belief in miracles to order was dying out, even in the 
 twelfth century, it gradually became clear that, in the absence of 
 collusion, a resort to the ordeal practically meant certain con- 
 demnation. Moreover, the ordeal system could not be worked 
 without the active aid of the Church ; and the Church definitely 
 abolished the judicial ordeal at the Lateran Council of 1216. 
 
 There remained then, apart from some special cases, such 
 as trial by charters and trial by official witnesses,^ only the 
 ancient resort of trial by battle, the last formal survival of the 
 blood feud ; and this, as we have seen in the case of the * appeals,' 
 the royal judges were striving, might and main, to put down. 
 It is true that, in their famous procedure of the Writ of Right, 
 they virtually legalized it under the name of the duel, or judicial 
 combat ; ^ but, as we shall see, before very long, they found a 
 
 • The curious expression ' wager of law ' seems to be due to the fact that the 
 accused gave pledges (vadia) to appear with his 'oath-helpers' on a given day. 
 
 ' E.g. where the accused relied upon direct proof of title by royal gift, or whore 
 he had bought the disputed article in open market under the provisions of William's 
 Law (Liebermann, 487). 
 
 ' It appears to be orthodox to deny the connection between the feud and the 
 judicial combat. But may not the latter have been simply a later and more humane 
 stage of the former ? The fact that the Conqueror seems to have had some difficulty 
 in persuading his subjects to accept it (W'ill. I, 1 ; art. 6) seems merely to point to 
 the fact that the English clung to the rougher joys of a less formal scramble.
 
 IMPROVED LEGAL PROCEDURE 47 
 
 substitute for it, though the Writ of Right itself was not formally 
 abolished till the year 1833. This substitute was the still more 
 famous trial by jury. 
 
 A jury is, as the word implies, a body of sworn men. But 
 not all bodies of sworn men are juries, in the technical sense 
 of the word. The oath-helpers of the * wager of law,' 
 of which we have just spoken, were, obviously, sworn 
 men ; but they were not a trial jury, because they simply testified 
 to the truth of the accused's denial. Neither are witnesses, in 
 the modern sense, though they, too, are sworn, a trial jury ; 
 and for a similar reason. The doomsmen of the popular moots 
 may, very possibly, have taken some oath ; but they were a 
 tribunal, not a method of trial. To find the origin of trial by 
 jury, we must turn, not to ancient popular custom, but to royal 
 privilege. 
 
 In the later Roman Empire, the Imperial Treasury had often 
 found itself at a loss in dealing with fiscal questions in the prov- 
 inces. It was not unnatural that the imperial claims should 
 often be met, especially in districts remote from centres of 
 administration, with professions of ignorance very hard to dis- 
 prove. Was a particular farm, or was it not, part of the 
 property of a deceased person who had bequeathed all his belong- 
 ings to Caesar? To solve this and similar problems, the im- 
 perial officials used to seize upon a certain number of the most 
 responsible persons in the neighbourhood, and compel them to 
 find an answer. The privilege, under the name of ' inquest,' 
 passed to the Frankish emperors, Charles the Great and his 
 successors, from them to the Norman dukes who conquered an 
 outlying province of the Frank Empire, from the Norman dukes 
 to the English kings. It was at first intensely unpopular; 
 and not unnaturally, for it was used mainly as an engine to 
 extort information which, it was easily foreseen, would lead 
 to taxation. The ' inquests ' which resulted in the compilation 
 of Domesday Book made a vivid and unfavourable impression 
 on the country. A similar effect was produced by the inquests of 
 1166 and 1170, before alluded to.^ Even to this day, the word 
 ' inquisitorial ' bears the burden of historical unpopularity. 
 
 A new turn was given to the royal privilege when the royal 
 officials began to use it for the decision of private disputes, and 
 
 1 Ante, pp. 40, 41.
 
 48 A SHORT HISTORY OF ENGLISH LAW 
 
 especially for disputes about land. By the common law of feud- 
 alism, such disputes were settled in the court of the lord of both 
 The Jury in disputants. Properly speaking, the verdict ■ or judg- 
 Law Suits nient should have been found by the 'pares curtis, or 
 other vassals of the lord, and pronounced by the lord's mouth. 
 This plan was adopted in more than one of the big lawsuits of 
 the early twelfth century; and, in the famous clause of the 
 Great Charter, so long and so profoundly misunderstood, it 
 was again asserted as a fundamental principle of justice.^ 
 
 But in fact we find, from the earliest years of the twelfth 
 century, that the King was using another method to decide dis- 
 putes between his tenants in capite. In the year 1101, Rollo of 
 Avranches and the Abbot of Abingdon were disputing the title 
 to three virgates of land in Oxfordshire. The King, instead of 
 summoning his Great Council, sent a writ to Hugh of Buckland 
 (? sheriff of Berks) and the sheriff of Oxford, bidding the men 
 of the two counties, ' on the part of the King,' say the truth as 
 to the title to the three virgates.^ In the year 1122, a dispute 
 between the monks of St. Stephen of ' Brideton ' and the tenants 
 of the royal manor of Bridport was, on the King's command, 
 referred to a sworn jury of sixteen men of the neighbourhood, 
 who found that the land in dispute belonged to the manor 
 of Brideton, granted to the monks by William the Con- 
 queror. ^ 
 
 The judicial activity of the reign of Henry II comprised 
 a vast development of the jury trial. At some unknown date. 
 Reforms of the King, while admitting the principle of feudal 
 Henry II jurisdiction in land suits, added, as a new rule of 
 administration, that no suit touching a freehold should be 
 commenced, even in a feudal court, without the royal writ.* 
 There was, probably, some colour for this startling innovation 
 in the historic oath of Sarum, by which the Conqueror had 
 striven to make himself, not merely overlord, but direct lord, 
 of all land-holders in the kingdom. Obviously, it gave the 
 royal officials notice of all land suits, and thus provided them 
 
 ^ Cap. 39 (S.C. 301). The judgment by peers survives in the trial of a peer in 
 the House of Lords. 
 
 ' Bigelow, Placita, Anglo-Normannica, p. 74. 
 
 ^Ihid., p. 120. 
 
 * Glanville, Lib. II, cap. 15. There was an exception for a purely clerical 
 dispute about a frankalmoign estate.
 
 IMPROVED LEGAL PROCEDURE 49 
 
 with abundant opportunities of further interference, which they 
 were not slow to use. 
 
 One of the most famous and sweeping of these interferences 
 was that known as the Grand Assise. The defendant against 
 Grand whom a Writ of Right had been issued, might, if 
 
 Assise j^g pleased, instead of running the risks of battle, 
 
 apply to the King for a counter-writ which bade the sheriff 
 summon sixteen knights of the county wherein the disputed 
 land lay, to recognize, upon their oaths, which of the parties 
 had the greater right. ^ Thereupon, the proceedings towards 
 battle in the lord's court were peremptorily stopped by the 
 sheriff; and the dispute remitted to the jurj' of sixteen.^ 
 
 "Another innovation of the same reign was equally drastic. 
 The proceedings on the Writ of Right were apt to prove dilatory. 
 Petty by reason of the number of ' essoins,' or excuses 
 
 Assises allowed to the defendant, as well as by ' vouchers 
 
 to warranty.' It would have been unsportsmanlike to expect 
 a man to fight while he was in poor health, or to deprive him 
 of his land because, being absent on the King's business, he 
 failed to respond to the challenge. Again, it had been recognized 
 in England, from very early times, that one of the best ways 
 of defending a challenged title, either to goods or land, was to 
 call in the help of the person from whom the defendant had 
 received tliem. This person might either have expressly guar- 
 anteed the defendant's title ; or he might have been held by 
 the law to have done so. In either case, he was bound to inter- 
 vene and take up the burden of the defence ; unless he himself, 
 in turn, ' vouched to warranty ' his vendor, and so on. 
 
 But all this caused delay ; and, in the meantime, who was 
 to hold the land? This question the royal justices took upon 
 themselves to settle; presumably on the ground that the King 
 must know to whoni-to look for military service and taxes. 
 Accordingly, a brief inquest on some simple question of fact 
 was held bj^^sworn men ; and, according to the result, interim 
 possession was awarded. Generally speaking, the principle 
 adopted was that of the status quo. By the Assise of Mort 
 d'Ancestor,^ the heir of the person who had actually been in 
 
 * Glanville, Lib. II, cap. 11. Four knights were chosen directly by the sheriff; 
 and these elected the other twelve. 
 ^ Ibid., cap. 8. 
 » Ibid., Lib. XIII, capp. 2-18.
 
 50 A SHORT HISTORY OF ENGLISH LAW 
 
 possession at his death was given possession. By the Assise of 
 Novel Disseisin,^ the man who had but just ejected his peaceful 
 opponent was compelled to hand back the land. By the Assise 
 d'Arrein Presentment,- the patron who had presented„the last 
 incumbent was given power to fill the existing vacancy. All 
 was ' without prejudice ' (as a modern lawyer would say) to 
 the ultimate decision of the ' right ' or title ; but, in fact, the 
 delay and expense of trying the ' right ' or ultimate title, were 
 so great, that an award on a possessory assise frequently settled 
 the dispute for ever. This fact, naturally, tended to increase 
 the popularity of the possessory assises, and, through them, to 
 draw a sharp line between ' right ' and mere possession, or, as 
 it was called, ' seisin.' This again, led judges and lawyers to 
 insist on the importance of possession, or seisin, as evidence 
 and presumption of title, and thus to give to the seisin of land that 
 unique importance in English land law which it has ever since held. 
 The next stage in the story is the development of remedies 
 for the protection of seisin or possession, independently of a 
 Writs of Writ of Right. It soon became clear, that the 
 ^^^^ real essence of a ' novel disseisin' was the disturbance 
 
 of good order which had been caused by the unsuccessful party. 
 Let the idea be extended a little further ; and we get an inde- 
 pendent action based on disturbance of seisin as a wrong jjer se. 
 Thus appear the writs of entry, which, at first only available 
 between the ejector and the ejected, were gradually extended 
 in favour of persons deriving title through each of them»^ The 
 man who ' had no entry ' to the land in dispute, save by a 
 disseisin, was bidden to give up the land at once, or appear in 
 the King's court to show the reason why. If he appeared, the 
 simple question of disseisin, or disturbance of the King's peace, 
 was submitted to a jury ; and, according as the jury found, 
 so the seisin — in theory only pending the decision of the ' right,* 
 in substance for ever — was awarded. No wonder the' feudal 
 lords, who saw themselves deprived of their jurisdiction by this 
 novel procedure, protested vigorously, and, in form at least, 
 
 1 Glanville, Lib. Xlll.capp. 32-39. 
 
 * Ibid. capp. 18-21. 
 
 ' This is the meaning of the mysterious per, post, and cid, so often associated with 
 the Writs of Entry. The details are too long to give. All limits were removed by 
 the Statute of Marlborough in 1267 (cap. 29). The Writ of Entry thus became a 
 simple means of recovering seisin.
 
 IMPROVED LEGAL PROCEDURE 51 
 
 procured the abolition of the obnoxious ' Praecipe ' by the Great 
 Charter.^ But the tide was running against them. Under 
 cover of the glaring fiction that the ' lord of that fee had renounced 
 his court,' the King's judges granted, almost as of course, on the 
 issue even of a Writ of Right, a supplementary writ (the tolt) to 
 remove the case from the lord's court to the shire court, and 
 another (the 'pqne) to remove it from the shire court to the King's 
 court." In their despair, the feudal lords seem to have grasped 
 at royal privileges, and, at any rate during the troubled years of 
 Henry III, to have attempted to attract litigants to their own 
 courts by the offer of jury trial. But this was too much to be 
 borne ; and the claim was repudiated, after the royalist victories, 
 by the Statute of Marlborough.^ 
 
 We have seen that the jury of accusation, as distinct from 
 the jury of trial, was introduced into the new criminal procedure 
 The ^y *^^ Assise of Clarendon.'* But it is equally clear 
 
 Criminal from that document, that the trial jury formed no part 
 
 Jury • , . . , » 
 
 of its original plan. With the abolition of ordeals, 
 however, the machinery of the Assise threatened to break down. 
 Public opinion, even in the thirteenth century, would hardly 
 permit of a man of good character being condemned off-hand, 
 even on the accusation of a jury. Apparently, the judges who 
 found themselves called upon for a practical solution of the 
 difficulty got into the habit of asking the accused whether he 
 would submit to a trial by the 'country,' i.e. by a second jury, 
 chosen from the neighbours present. The purely voluntary charac- 
 ter of the submission is shown by the (to us) amazing fact that, 
 until the year 1772,^ a prisoner who refused to plead before 
 such a tribunal could not be tried at all ; he could merely be 
 subjected to the peine forte et dure — i.e. to judicial torture, to 
 compel him to plead.^ Apparently, the pressure literally 
 applied to the accused to 'put himself upon his country' was 
 successful in establishing thepetty juiy, or jury of trial in criminal 
 
 » Cap. 34. 
 
 -This process had begun in Glanville's day (Lib. I, capp. 4-6). The later forma 
 are given in Blackstone's Commentarus, Vol. Ill, Appx. I. 
 
 '52 Hen. Ill (1267) c. 22. 
 
 * Ante, p. 40-1. 
 
 5* 12 Geo. Ill, c. 20. 
 
 ® This barbaric means of introducing an amendment of legal procedure was 
 actually authorized by the Statute of Westminster the First (3 Edw. (1275) c. 12). 
 That it should have been necessary to resort to it, is a vivid illustration of the 
 difficulty of openly making changes in primitive law.
 
 52 A SHORT HISTORY OF ENGLISH LAW 
 
 cases, as an ordinary institution, soon after the close of the 
 thirteenth century. At any rate, a statute of the year 1352^ 
 makes a clear distinction between the jury of indictment (' grand 
 jury ') and the ' jury of deliverance,' by enacting that no member 
 of the former should be put upon the latter, if the accused ob- 
 jected. We may, therefore, not unfairly assume, though the story 
 is verj^ dark,^ that, by the middle of the fourteenth century, 
 the outlines of English criminal procedure, as we know it now, 
 had been definitely drawn.^ 
 
 Finally, in their determination to win all litigation for the 
 King's courts, the royal justices, at the very end of this period, ( 
 invented or adopted a new writ, destined to be of 
 enormous importance in all branches of our law. 
 This was the Writ of Trespass, which makes its appearance in 
 the middle of the thirteenth century, just at the outbreak of 
 the Barons' War. Doubtless, in those troubled times, offences 
 of violence w^ere unusually frequent ; whilst the old methods of 
 redress only tended to aggravate the disorder. The notion of 
 the ' peace,' or suspension of hostilities, was very familiar in 
 theory; whatever its rarity in practice. And, of all 'peaces,' 
 the peace of the King was the most powerful and best protected. 
 If^ the royal officials could once establish the rule, that any 
 interference with possession, however slight, was a breach of 
 the King's peace, and subjected the ofl'ender to be summoned 
 before the King's justices, the ultimate triumph of the royal 
 courts was secure. With a little ingenious straining, almost 
 any offence known in a simple state of society could be treated 
 as a breach of the peace. The notion of the sanctity of posses- 
 sion had, as has been seen, been growing by means of the pro- 
 tection afforded to * seisin ' by the ' petty (or ' possessory ') 
 assises ' and the Writs of Entry. But the notion of seisin was 
 becoming technical. It was, for special reasons, gradually 
 being restricted to the possession of land (as distinct from 
 chattels), and of land by a freeholder, or a man who claimed as 
 
 1 Printed as 25 Edw. Ill, st. V, c. 3. 
 
 ^ It may Ije studied in the work of the late Professor Thayer, Evidence at the 
 Common Law, cap. II. 
 
 * It seems also, though the story is not very clear, that the decision of those 
 'exceptions,' which, as wo have seen {ante, pp. 42, 43), were allowed by the royal 
 judges to evade an appeal of felony, was also referred to a jury of recognitors. If 
 this were so, the step by which the issue of guilt or innocence was referred to a 
 giniilar body would not be long or distant.
 
 IMPROVED LEGAL PROCEDURE 5^ 
 
 such. Moreover, the ^notion of ' disseisin ' washeld to imply 
 a deliberate attempt to assert a right of possession. Some- 
 thing simpler was wanted — some process which should make 
 the mere casual raid or blow punishable by sharp and speedy 
 process in the royal courts. 
 
 This is exactly what the Writ of Trepass did, as the following 
 form wiir^show. 
 
 " If A gives pledges to prosecute his complaint, then put 
 B by gage and pledge that he (B) be before our Justices 
 at Westminster (on such a day) prepared to show why with 
 force and arms he assaulted the said A at N (or broke the 
 close of A at N, or took and carried away the sheep of A) 
 and other enormities to him did, to the grave damage of the 
 said A, and against our peace." ^ 
 
 In somewhat later days, there appears to have been a second 
 form, in which the sheriff was bid to hear the plaint ; and the 
 allegations of ' force and arms ' and ' against our peace ' were 
 omitted. But it may be doubted whether the ' viscontiel ' 
 Writ of Trespass was known in the period under review.^ At 
 any rate, the great merit of the Writ of Trespass was, that it 
 offered to the injured party a tempting alternative of the some- 
 what unsatisfactory remedies previously open to him. Instead 
 of bringing a dangerous ' appeal,' in which his opponent might 
 complete his triumph by doing the complainant to death, in- 
 stead of resorting to a probably unavailing summons before 
 the Hundred moot, the complainant could bring his adversary 
 before the royal justices and get him fined and outlawed, while, 
 out of the offender's goods, compensation would be awarded 
 to the complainant in proportion to the extent of his loss. Almost 
 from the first, it would seem, the very simple question involved 
 in an action of Trespass (' Did or did not the defendant offer 
 violence to the plaintiff ? ') was referred to that new ' inquest' 
 tribunal which, as we have seen, was becoming the favourite 
 method of settling all short questions of fact. At any rate, 
 we know that, when Edward I, in 1284, was forcing English 
 
 ' Fitzherbert, Natura Brevium, I, 86. Of course Fitzherbert lived long after 
 the thirteenth century ; but the form may be traced back to 1254 (Abbreviatio 
 Placitorum, 141, &c.). 
 
 ^ This doubt is suggested by the curious name which, in later days, distinguished 
 the royal from the local Writ of Trespass. The former was said to be 'returnable.' 
 But are not all writs of summons 'returnable'?
 
 54 A SHORT HISTORY OF ENGLISH LAW 
 
 legal procedure on the conquered Welsh, he spoke of trial by 
 the patria (the technical name for a jury) as the almost inevitable 
 method of deciding a plea of Trespass ; ^ and he announced his 
 intention of standing no nonsense about refusal of consent.^ 
 The new Writ of Trespass would, therefore, present the double 
 merit of a speedy decision and a new remedy. It is true that 
 the complainant ran some risk. If his complaint turned out 
 to be unfounded, he was in misericordid regis — i.e. liable to 
 fine and imprisonment. But this was, after all, a smaller risk 
 than the risk of an ' appeal.' 
 
 By these and other means, of which no account can here 
 be attempted, the royal officials of the twelfth and thirteenth 
 centuries had accomplished the chief part of that heavy task 
 which lay before the State, if it was to justify its existence by 
 establishing order and justice in the land. They had not only 
 provided a machinery which would, in the not very distant 
 future, draw well-nigh all causes to the King's courts, and thus 
 prepare the way for one uniform system of law; they had, in 
 the process, almost of necessity brought into existence a whole 
 set of tribunals to deal with such causes. The steps by which 
 the old irregular progresses of the King and his oificers through- 
 out the land had developed into an elaborate system of circuit 
 courts for the trial of assises and gaol-deliveries and offences 
 against the peace, are matters of Constitutional Law, and 
 cannot here be traced ; so with the process by which the old 
 Curia Regis, sitting occasionally to settle disputes between 
 tenants in capite, had produced the regular tribunals of the 
 Upper Bench, Common Bench, and Exchequer of Pleas. These 
 Aveighty matters are for separate study.^ Here it has been 
 attempted only to show, how the royal justices, faced with 
 the duty of strengthening the authority and revenue of their 
 master, had, by silent innovation and subtle ingenuity, gone 
 far to bring about the day when that master should be ' over 
 all causes and in all matters within his dominions supreme.' 
 This was a great ideal ; for it meant, ultimately, one people 
 under one law. 
 
 • Statutum Walliae, cap. 11. ' Ihid. 
 
 ' They may be studied briefly in the late Professor Maitland's posthumously 
 published Conslitutiondl History, and in Book I, ehaptor VII, of the great History 
 of Pollock and Maitland ; at more length in volume I of Holdsworth's History of 
 English Law.
 
 CHAPTER V 
 
 THE LAW OF CHATTELS 
 
 IT is not due to carelessness that, in the arrangement of the 
 chapters deahng with this period, the subject of legal 
 , - procedure is placed between what a modern lawyer would 
 regard as two equally important branches of substantive law. 
 This is a work on history ; and such a work should follow his- 
 torical lines, which in the present connexion appear to fall in 
 the direction indicated. The feudal scheme of land law was 
 deliberately built up with a view of administering the newly 
 won country of England. The new procedure, which the last 
 chapter has attempted to describe, was very largely produced 
 by the desire to strengthen the feudal scheme of land law. 
 The common law of chattels, that is to say, the law ultimately 
 adopted by the King's courts for the regulation of disputes about 
 the ownership and possession of goods, was, to a substantial 
 extent, a by-product of that new procedure which had been 
 mainly introduced to perfect the feudal scheme of land law. 
 
 We have seen ^ that the foundation stone of the new royal 
 procedure for the decision of land suits was the Writ of Right. 
 
 Doubtless, as has also appeared, this primordial 
 Right and° but rather costly and dilatory remedy had, in prac- 
 DebT^"* °' tice, been largely superseded by newer and more speedy 
 
 remedies, which, originally intended to decide only 'in- 
 terlocutory ' questions, had come to be regarded as disposing of 
 final questions. Nevertheless, it remained an assumption, all 
 through the Middle Ages, that the claimant of land who was 
 really in earnest, could insist on the original remedy of a Writ of. 
 %ht.2 
 
 ' Ante, p. 49. 
 
 * Even the theoretical right to trial by battle was not abolished till 1819 (59 Geo. 
 Ill, c. 46, s. 2 — the statute which also abolished appeals). The Writs of Right 
 themselves (for there were several varieties) were not formally abolished till 1833 
 (3 and 4 WiU. IV, c. 27, s. 36).
 
 56 A SHORT HISTORY OF ENGLISH LAW 
 
 Now in that treatise attributed to Glanville, which tells us 
 most of what we know about the procedure of the royal courts 
 in the twelfth century, there is another writ, the Writ of Debt, 
 which strikingly resembles it, and, indeed, appears to overlap 
 it in certain cases. Let us put the two writs side by side. 
 
 Right Debt 
 
 ' The King to the Sheriff. Bid A ' The King to the Sheriff. Bid N 
 
 that to justly and without delay that he justly and without delay 
 
 render to B one hide of land in such render to R 100 marks which he 
 
 a vill, of which the said B complains owes him, as he (R) saith, and of 
 
 that the said A unjustly deforeeth which he (R) complains that he (N) 
 
 him. And unless he does it, sum- unjustly deforeeth him. And, un- 
 
 monhim,' &c. (Glanv. lib. I, cap. 5). less he does it, summon him,' &c. 
 
 (Glanv. lib. X, cap. 2). 
 
 This resemblance, already, as we have said, striking enough, 
 becomes all the more striking when we observe that there was 
 actually a form of the Writ of Debt applicable to the recovery 
 of land. This form ^ supposes that the land was given in pledge 
 by the plaintiff to the defendant, for a term of years which has 
 expired, and that the defendant refuses to give back the land. 
 This is a most interesting writ from other points of view also. 
 Something will have to be said of it when we speak of terms of 
 years, and also when we speak of mortgages. At present we 
 confine ourselves to asking why, contrary to all experience of 
 early legal systems, there should apparently be a double remedy 
 for the same grievance? 
 
 But, if we look a little more closely, we shall probably soon 
 discover that the grievance is not exactly the same in the two 
 Not Based cases. In the case of the Writ of Ri^ht, as in the 
 on Violence ^.^gg gf the popular 'appeal of larceny,' there is an 
 underlying assumption, that the thing sought to be recovered 
 has been taken from the claimant by force or fraud. Therefore, 
 if all other methods fail, the dispute must be decided by battle. 
 In the case of the Writ of Debt, it is not so ; though it is possible 
 that, incidentally, a question involving an appeal to arms may 
 arise in the course of an action of Debt — as, for example, if the 
 defendant from whom a chattel is claimed sets up a hostile title, 
 and ' vouches to warranty ' a third party who takes up the 
 challenge.^ In the ordinary way, the Writ of Debt assumes 
 
 1 Glanville, lib. X, cap. 9. ^ Ibid., cap. 17.
 
 THE LAW OF CHATTELS 57 
 
 that the thing sought to _^ be recovered has been voluntarily 
 handed over (or 'bailed') to the defendant by the plaintiff, 
 for a specific purpose, such as hiring, pledge, or loan, which 
 has now expired. According to the ideas of the day, refusal 
 to return a thing thus ' bailed ' was no very serious offence ; 
 probably, in spite of King Alfred's injunctions, the plaintiff 
 in such a case was looked upon as rather a fool for letting his 
 land or chattels go out of his hands. So the stern remedy of 
 battle was iiQt part of the proceedings. The defendant (even, 
 apparently, if the plaintiff has a tally or other record of the 
 transaction) was allowed to clear himself by the process of 
 * waging his law.' 
 
 Now, at this point, the student of English legal history ought 
 to begin to feel a serious difficulty. He has been taught to 
 A ' Real believe, on the great authority of Bracton,^ that 
 Action there never was, in English law, an action to recover 
 
 a specific chattel, a 'real' action to recover a movable; and 
 he knows that, until a very recent day, the defendant in an 
 action of Detinue (which was only a special form of Debt) 
 could always evade delivery of the subject matter by paying 
 its value. And yet it looks, if Glanville speaks the truth, as 
 though the earliest and, for some time, the only chattel action 
 known to the King's courts, was of the most thoroughly 'real' 
 
 type. 
 
 The difficulty is great ; but a fairly plausible solution may 
 be offered. 
 
 It seems quite clear, that the original notion of the Writ of 
 Debt was as 'real' as anything could possibly be. Even 
 when the subject of the action was a sum of money, as in the 
 first example given by Glanville,^ the mind of the framer of 
 the writ is evidently bent on getting back the specific coins 
 lent. There is no question of a ' debt ' in the wide modern 
 sense, which includes any liability to pay money. The de- 
 fendant is to restore the very coins lent. 
 
 But, even in the twelfth century, though, doubtless, the 
 'FungibiUty* quality of coins was very far from uniform, a plaintiff 
 of Money would have been unwise if he refused to accept 
 100 marks from a defendant, on the ground that they were 
 
 > Lib. Ill, cap. 3 (4). » Lib. X, cap. 2.
 
 58 A SHORT HISTORY OF ENGLISH LAW 
 
 not his identical coins. Naturally, the defendant had not 
 borrowed the money for the purpose of looking at it ; he had 
 borrowed it to trade with, or to pay his rent, or for some other 
 purpose which involved parting with it. What is technically 
 called the ' fungibility ' of money, is its chief value as an article 
 of commerce ; and this fact could not long remain unrecognized, 
 even by such a conservative class as legal officials. Accord- 
 ingly, it soon became clear, that an action of Debt based on a 
 loan of money was merely an action to recover money of a cer- 
 tain value. But the originally ' real ' character, even of a money 
 claim, survived, to the latest days of its history, in the rule that 
 a Writ of Debt could only be issued for a specific sum — the 
 
 * very debt itself ' was to be recovered. The action could not 
 be employed to recover ' unliquidated damages ' ; because 
 there was no jury to assess them. If the defendant was so 
 unlucky as to fail in his wager of law, he was liable for the whole 
 of the plaintiff's claim.^ 
 
 The change was by no means complete when the thing sought 
 to be recovered was, not money, but 'non-fungible' chattels. 
 Other The difference is marked by the appearance, just 
 
 Chattels ^t the end of this period, of the distinction between 
 
 * Debt ' and ' Detinue.' If the plaintiff is suing for a sum of 
 current money, he alleges that the defendant 'debet' — i.e. 
 ought to pay it ; and the Court, if the defence fails, will issue 
 a judicial writ {Fi. Fa.) to the sheriff, bidding him 'cause the 
 sum to be made' from the defendant's goods. But if the 
 plaintiff is seeking the recovery, say, of a horse or a plough, he 
 must say that the defendant 'detains' it {detinei) ; and then 
 he may be met by the simple denial, strictly in accordance 
 with ancient tradition- — non detinet. But that simple denial 
 opened up all sorts of questions, on some of which the law of 
 the thirteenth century was very vague. It may be quite true 
 that the defendant no longer ' detinet ' ; because he has sold 
 the article and pocketed the money. And yet, surely, he ought 
 not to get off. On the other hand, the horse may have died or 
 been killed without his (the defendant's) fault ; and then the 
 case would be different. 
 
 ' Professor Maitland has pointed out that this result was actually onihalniod in 
 a verse of medieval doggerel {The Court Baron, S.S. vol. 4, p. 17). 
 
 ' This was the 'twertutnay' or direct denial (word for word) which the primitive 
 moot expected from an accused.
 
 THE LAW OF CHATTELS 59 
 
 Accordingly, as Bracton informs us/ it was the business of 
 every plaintiff who sought to recover a chattel by action, to put 
 Alternative a price upon it; and then, even if the defendant 
 Remedy ^q longer held the chattel, he might be made liable 
 for the value. And thus the Court, unwilling to allow the 
 plaintiff to be tricked at the last moment by the defendant 
 destroying the chattel or allowing it to escape, seems to have 
 got into the habit of giving judgment for the return of the 
 article or its value, an alternative not unnaturally interpreted 
 by defendants in their own favour. 
 
 A much more interesting explanation of this apparently 
 stupid anomaly is so often given, that a word must be said 
 Another about it. It is alleged that the maxim or rule enun- 
 Expianation elated by Bracton is founded on a fundamental 
 principle of Teutonic law, usually expressed in the adage * Haiid 
 muss Hand wahren,' or, in French form, * meuhle n'a suyte.' 
 With great respect, the adage alluded to seems, in practice at 
 any rate, to have led to a result exactly the opposite of the rule 
 under consideration. Surely we see the primitive Teutonic 
 mind at work, if anywhere in legal procedure, in that ancient 
 'appeal of larceny' which the King's courts are, in this period, 
 trying to put down. But it is just in the appeal of larceny 
 that the successful appellor gets back his very goods. The 
 possessor may clear himself by ' vouching to warranty,' or 
 by showing that he bought the goods before formal witnesses ; 
 but he has to give them up all the same, if the plaintiff can 
 prove his allegations. If the appellee is worsted in battle, he 
 loses, not merely the article in dispute, but his other chattels as 
 well. In the picturesque language of an ancient Assise Roll, 
 * he (the appellor) gets his (the appellee's) chattels, for beheading 
 him.'^ It is suggested that this primitive right could not be 
 enforced if the claimant had voluntarily parted with the posses- 
 sion of the chattel sought to be recovered.^ It may be so; 
 though the reasoning is not obvious. It looks much more as 
 though, when money became common, and most things had 
 acquired a ' market value,' and when the new jury tribunal was 
 
 'Lib. Ill, cap. 3 (4) 'alioquin non valebit rei mobilis vindicatio, pretio non 
 apposite.' As Bracton goes on to point out, the necessity for valuation is still 
 greater where the object 'in pondere, numero, mensura, consistit.' 
 
 ^Assise Rolls of Northumberland (Surtees Society), p. 70. 
 
 ' See the question elaborately discussed by P. & M. (Vol. II, pp. 155-183).
 
 60 A SHORT HISTORY OF ENGLISH LAW 
 
 there to assess 'unliquidated damages,'^ it was found convenient 
 to substitute a money judgment for a decree of specific restora- 
 tion. But it was a singular and obvious gap in the legal pro- 
 cedure of the Middle Ages; and it worked a good deal of in- 
 justice. 
 f So far we have learned, incidentally, that, according to English 
 law in the thirteenth century, chattels might be stolen, aliened 
 Law of (finally or temporarily), and recovered by legal 
 
 Succession ppoccss. But it is also clear, though the rules them- 
 selves are far from certain, that chattels may be disposed of by 
 will, and that, if they are not so disposed of, they can be claimed 
 under rules of intestate succession. 
 
 The latter is obviously the older method ; and it is some- 
 what surprising to discover how long its first principles remained 
 unsettled. The Laws of Cnut give the undisposed 
 of possessions {cpJtfe) of a deceased person to his wife 
 and children; subject only to the just claims of his lord.- The 
 coronation charter of Henry I allots them to his wife, children, 
 or relatives, and his liege men ; to be divided for the good of his 
 (the deceased's) soul.^ The Custumal known as the Leges 
 WiUehii says that the goods of a deceased Intestate are to be 
 divided equally among his children.^ Glanville gives them to 
 his lord.^ The Great^harter supports the claims of the Qiurch I 
 to undertake the distribution ;^ and Bracton follows the Charter.^ 
 
 Thus the victory appeared to rest with the Church ; but 
 it is clear from Bracton's pages, that the Church was not allowed 
 The Reason- to carry off all the goods of a deceased intestate, 
 able Parts From whatever source derived, whether from Roman 
 Law or Teutonic custom, there was an ancient division which, 
 differing in detail from place to place,"is everywhere recognizable 
 in principle. The deceased's widow (unless sufficiently pro- 
 vided for by dower) gets one third of jthe_goods; one half if 
 
 1 In this connection, the new Writ of Trespass (de bonis asportatis) previously 
 alluded to, was important ; but it did not apply to chattels voluntarily bailed to the 
 defendant. 
 
 2 Cnut, II, 70. 
 
 3 S.C. 101. 
 
 * Liebermann, 514. 
 
 ' Lib. VII, cap. 16. (Possibly this passage refers only to the case of the bastard, 
 which Glanville has just been discussing. But the forty manorial courts which 
 claimed probate jurisdiction so late as the year 1831 (Report on Ecclesiastical Courts, 
 Appx. D, p. 509) suggest a formerly widespread claim.) 
 
 6 Cap. 27 (S.C. 300). ' Lib. II, cap. 26 (2).
 
 THE LAW OF CHATTELS 61 
 
 there are no children. The children get a third, or, if there is.no 
 widow, a half. The remaining third (or half) is the ' deads' 
 part ' ; and, if not disposed of by the deceased's will, goes to the 
 Church, or, possibly, if the deceased man was a serf, to his lord.^ 
 
 This brings us to an important question. Is the will (of 
 chattels) a primitive English institution? The passage above 
 The Testa- quoted from the Laws of Cnut refers to a man who 
 ment ^^j^g < civydeleas ' ; it suggests, therefore, that a man 
 
 might if he liked, make a will. But it seems to be the better 
 opinioi\^tli^t, befor e tlie twelfth ceuliiry, the only form of testa- 
 mentary disposition in England (except in the case of privileged 
 persons) was the ' post-obit gift,' i.e. the actual delivery of goods 
 to a trustee or executor, who undertook to distribute them after 
 the owner's death in accordance with the latter's wishes. 
 
 Now the Church disliked this way of doing business ; because 
 it left little scope for that practice of making death bed gifts 
 Influence of wliich, during the whole of the Middle Ages, brought 
 the Church g^ m^ch wealth to ecclesiastical coffers. And so we 
 find, everywhere throughout Western Europe,^ as one of the 
 most striking results of the establishment of separate ecclesiastical 
 courts, the introduction of the genuine will of chattels, i.e. the 
 purely ' ambulatory ' disposal, usually by mere word of mouth, 
 of the 'dead's part,' to take effect on his decease. Such wills, 
 being revocable and secret, were usually made in articulo mortis, 
 and were really part of the dying confession. Naturally, the 
 execution of these fell into the hands of the Church, which, also, 
 usually turned out to be chiei legatee. Naturally, also, the 
 Church insisted strenuously upon the duty of making a will, 
 and almost stigmatized as doomed to perdition the unlucky man 
 who omitted this duty — at least if he had fair warning of his 
 impending death. Naturally, in the last place, the Church 
 contended strongly, that such a lapse from duty should not 
 deprive her of property which should have been left for pious 
 uses; and, as has been seen, she seems to have made good her 
 claim by the end of the period under review. 
 
 Thus the Church in England acquired that unrivalled posi- 
 tion in the matter of wills of chattels which remained almost 
 
 > See Bracton, lib. II, cap. 26 (2), ff. 60 b-61 a. 
 
 ' See Caillemer, The Executor in England and on the Continent (Select Essays 
 in Anglo-American Legal History, III, 746-769).
 
 62 A SHORT HISTORY OF ENGLISH LAW 
 
 unbroken for six centuries. If the deceased's legatees set up a 
 will, they must prove its existence in the court of the 
 tary jurisdic- ' Ordinary of the diocese ; otherwise the Church's 
 claim to the 'dead's part' prevailed. Thus the 'pro- 
 bate' of the will. All questions of interpretation were naturally 
 referred also to the same tribunal. If intestacy were admitted, 
 the Church appointed an ' administrator ' ; and it was long before 
 the next-of-kin could make him answerable for the ' dead's part.' 
 Until tjie ' letters of administration ' were formally granted, 
 the goods were the property of the ' Ordinary.' No doubt 
 there were, in privileged places, e.g. chartered towns, special 
 customs which ousted the control of the Church courts.^ But, 
 speaking generally, the Church had, by the end of the thirteenth 
 century, established a monopoly of testamentary jurisdiction 
 in all matters not affecting land. The efforts of the royal 
 courts seem to have been confined to a vigorous defence of all 
 land jurisdiction against the Church, and to the enforcement, 
 in favour of the creditors of the deceased, of the payment of 
 the latter's debts. This last point is so important, that a 
 few words must be said about it. 
 
 Once more, the student familiar only with modern ideas 
 finds himself in a maze when he attempts to understand the 
 ^jjg attitude of primitive society towards the liabilities 
 
 Deceased's of a deceased person. To him it appears inevitable, 
 that the claims of a dead man's creditors should be 
 confined to his ' estate,' i.e. the proprety which the dead man 
 leaves behind him. Every student of English law is also familiar 
 with the fact that, until less than a century ago, it was with 
 difficulty, and only in exceptional cases, that the deceased's 
 land could be made available to satisfy his creditors. It may, 
 therefore, come upon him as a shock to find, that there are, 
 in English law of the twelfth century, unmistakable traces of 
 personal and unlimited liability on the part of the heir to satisfy 
 his ancestor's debts, irrespective of 'assets.' Glanvillc,- for 
 example, distinctly says that, if the goods of the deceased are 
 insufficient to pay his debts, the heir ' is held bound to make 
 up the deficiency out of his own estate, if he is of age.' As 
 late as the year 1275, the Statute of Westminster the First ^ 
 
 • See Gross, Mediaeval Intestacy (Select Essays in Anglo-American Legal History, 
 III, 723-736). « Lib. VII, cap. 8. ' 3 Edw. I, c. 19.
 
 THE LAW OF CHATTELS 63 
 
 re-afl5rmed this rule ; so far as Crown debts were con- 
 cerned. 
 
 The explanation seems to lie in the fact that, in early times, 
 the liabilities of a deceased person are not ' debts ' in the modern 
 Primitive Sense of the term, but, rather, sacred family responsi- 
 Notions bilities connected with religion and the blood feud, 
 
 which are indelible, and fall alike on all members of the kin. 
 It was only the recent and extraordinary change in the law 
 which, as we have seen, substituted primogeniture for equal 
 division among males, that, in England, made the liability of 
 the single heir look so grotesque. And so we are not surprised 
 to find that a great change took place also in the law of liability 
 for the dead man's debts. 
 
 The change is marked by the introduction of a new figure 
 into the scene. In the middle of the twelfth century, the heir 
 The is contemplated as the person who will succeed. 
 
 Executor j^^^ ^j^jy ^^ ^j-^g deceased's land, but to his chattels, 
 at any rate for purposes of distribution. 'If,' says the Assise 
 of Northampton,^ ' a free tenant dies, his heir shall continue in 
 the seisin ^ which his father had on the day when he (the father) 
 was alive and dead, as regards his fief; and he (the heir) shall 
 have the chattels that he may make the division of the deceased.' 
 
 But it was natural that the new practice of will-making 
 introduced by the Church should work a change in this rule ; 
 and, accordingly, we find that, by the early years of the thir- 
 teentL- century, the person entrusted with the distribution 
 of the chattels of the deceased is not his heir, but a new person 
 called an ' executorj^', i.e. a person specially appointed by the 
 deceased to execute, or carry into effect, his will.^ This person 
 may be, as is sometimes suggested, a survival of the old Treu- 
 hander or Salmann, to whom was entrusted, by post-obit gift, 
 the fulfilment of the deceased's wishes in primitive times.'* 
 But he is sufficiently accounted for by the desire of the Church 
 courts, jealously excluded from all control over the deceased's 
 land, but vested, as we have seen, with administration of his 
 chattels, to have a separate ' personal representative,' who should 
 
 'Art. 4 (S.C. 151). 
 
 * This is the famous doctrine : ' Le mort saisit le vif.' 
 
 ' ' The rest (of the deceased's chattels) shall be left to his executors for the per- 
 formance of his will' (Magna Carta of 1215, cap. 26, S.C. 300). 
 
 * Ante, p. 61.
 
 64 A SHORT HISTORY OF ENGLISH LAW 
 
 derive his authority entirely from them, and undertake to carry 
 out the administration under their supervision, and according 
 to their rules. In the case of intestacy, it was still more im- 
 portant for the Church courts to appoint an ' administrator,' 
 who would look sharply after the substantial claims of the 
 Church in respect of the undisposed of ' dead's part.' 
 
 But it was equally natural that the heir, thus deprived of 
 what was gradually growing, as commerce and industry devel- 
 Reiease of oped, to be a more and more important part of 
 the Heir j^jg ancestor's estate, should decline responsibility 
 for his ancestor's liabilities ; the more so as these also gradually 
 ceased to wear a religious and personal character, and became 
 mere commercial debts. The liability of the deceased's chattels 
 themselves to be employed for payment of his debts is clear; 
 even in the passage of Glanville which has been quoted to 
 show the ultimate liability of the heir at that date.^ By the 
 time of Bracton,^ we find that the heir's liability is limited to 
 the value of the deceased's property inherited by him. The 
 great Statute of Westminster the Second, in 1285, informs us, 
 incidentally, that the executors of a deceased person are bound 
 to pay his debts,^ and imposes a similar liability on the ' Ordi- 
 nary ' in the case of intestacy. The same statute ^ gives to 
 executors a Wxit^of Account against the debtors of the deceased ; 
 and thus relieves them from the necessity of resorting to the 
 Church courts for less efficient remedies. For the King's courts 
 did not allow the Church courts to entertain actions of Debt, 
 even fide interpositdJ' 
 
 In some such way as this appear to have arisen those two 
 fundamental rules of the Common Law which were, until recently, 
 and, to a considerable extent, are still, such striking features 
 of the English Law of Succession. Land^ goes to^th£_heir; 
 because the executor was appointed by a will, and the King's 
 courts would recognize no will of lands. And it wenf,^until 
 
 ^ Perhaps, however, at that date only when the testator had so expressly directed 
 (Lib. VII, cap. 8). 
 
 ' Lib. II, cap. 26 (2). 'But the heir of the deceased will be bound to pay the 
 debts of the deceased ... so far as the inheritance goes, and no farther' (fo. 61a). 
 
 3 13 Edw. I, St. I, c. 19. 
 
 * Cap. 23. 
 
 ' Glanville, lib. X, cap. 12. 
 
 ' It must, of course, be remembered that, for this purpose, 'land' does not 
 include terms of years ('leaseholds').
 
 THE LAW OF CHATTELS 65 
 
 lately, to the heir free of all the liabilities of the deceased ; except 
 such as could be enforced, under the law of warranty, against 
 the land itself ('specialities in which the heir is bound ')• If the 
 Church claimed the chattels, let her pay the debts. This 
 medieval quarrel is largely responsible for one of the most 
 characteristic and important rules of English property law, viz. 
 the distinction between ' real ' and ' personal ' property. 
 
 At first sight it looks as though the period before us did nothing 
 
 to develop that branch of the law which, to every modern lawyer, 
 
 is of supreme importance, viz. the Law of Contract. 
 
 Contract ^ \ . . , , i . , > 
 
 roT the modern lawyer mevitably thmks or a con- 
 tract as an accepted offer, or agreement; and Glanville lays it 
 down emphatically, in spite of the somewhat ambiguous wording 
 of the Constitutions of Clarendon^ (with which he must have 
 been familiar), that the King's court will not concern itself with 
 * private agreements.' ^ Bracton, who wrote at the very end of 
 our period, was, as a scholar and a student of Roman Law, 
 perfectly well aware of the hideous gap left in the structure of 
 the common law by the absence of a general theory of contract ; 
 and made a half-hearted attempt to fill it with bricks and mortar 
 from the Institutes.^ But, in the opinion of eminent critics, 
 his treatment of this topic is purely academic, and bears little 
 relation to the facts of his day.'* 
 
 Looking, however, again at Glanville, we seem to discover 
 that, under the disguise of 'diracionatio' or ' probatio,' ^ con- 
 Debt and tracts (for Glanville expressly uses the term)® are 
 Contract making their way, into the action of Debt. And this 
 ought not to surprise us ; for, as we have seen, ^ an action of Debt 
 was originally an action to recover a chattel ; and, as we also 
 know, both from general sources and Old English law in particu- 
 lar,^ the delivery or pledge of a chattel was one of the earliest 
 known means of securing the performance of an undertaking. 
 How does this apparently irrelevant treatment lead to anything 
 like a recognition of a Law of Contract ? Apparently, in this way. 
 
 The man who brings an action of Debt must show some ground 
 for his assertion that tlie defendant ought to render to him the 
 
 1 Cap. XV (S.C. 140). » Lib. X, cap. 18. 
 
 3 Lib. Ill, cap. 2 (ff. 99-101). 
 
 * Bracton and Azo (S.S. Vol. 8). See Introd. pp. xix, xx. 
 ' Lib. X, cap. 12. ' Ante, p. 57. 
 
 ^Ibid., cap. 18. ^ Ante, p. 13.
 
 66 A SHORT HISTORY OF ENGLISH LAW 
 
 sum of money or other thing that he is claiming.^ He must show 
 that he gave the article as a pledge, and that he has redeemed it, 
 or is prepared to redeem it.- He must allege that the defendant 
 gave himself as security for A's debt, and that A is in default;^ 
 or that he (the plaintiff) hired to the defendant the article 
 claimed ;^ or sold to him the chattel, the price of which he is seek- 
 ing to recover.^ Only in one case does Glanville, in his famous 
 Book on Debts, recognize anything that we should call a ' purely 
 executory contract.' This is when the plaintiff' produces in 
 court a charter bearing the defendant's seal. Then the defendant 
 'will be held to warrant without contradiction all that is con- 
 tained in that charter.' ^ But as to the kind of claim a charter 
 may be brought to enforce, Glanville says nothing ; and it is 
 quite possible that, at first, it was only in support of a common 
 claim for money lent, as we should say, 'on a bond,' that such 
 a proof could be adduced. The real difficulty for the modern 
 reader of Glanville's book is, that his author does not clearly 
 distinguish between the nature of a transaction and the proof of 
 it. If we take his words literally, he seems to demand that, for 
 every action of Debt, there must either be (a) pledge, (6) surety, 
 (c) causa — i.e. some well-recognized and familiar transaction, 
 such as sale, hiring, gratuitous loan of a chattel, and the like. 
 Illogical as this classification may sound, it is not at all unlike 
 the kind of classification which one meets with everywhere in 
 early law. Once more we must remember, that the sharp 
 •distinction of ideas with which we are familiar is a very modern 
 thing. 
 
 But if this view of Glanville's meaning is correct, we have the 
 beginnings of a Law of Contract. It is only necessary to increase 
 the list of causaej and we shall increase the list of contracts. 
 It is true, that a Law of Contract based on causae will always be 
 an arbitrary and inelastic law ; but it is a kind of law with which 
 
 ' It is true that the first example of the Writ of Debt Riven by Glanville (lib. X, 
 cap. 2) contains nothing but a bare demand of money. But this seems to be a mere 
 skeleton form. The statement in cap. 12 is explicit. 
 
 »Capp. 7, 9. 3 Cap. 4. " Cap. 18. ^ Cap. 14. " Cap. 12. 
 
 ' A very promising opening appears in the action of Debt on a sale (Glanville, 
 lib. X, cap. 14). In all probability, this action was at first given only when the 
 article or the price had already been handed over, and it would have been iniquitous 
 to allow the other party to refuse to fulfil his share of the bargain. But, when 
 Glanville wrote, the sale was 'perfected' as soon as the price was fixed — a rule 
 which will account for the 'passing of the property' without delivery. Bracton 
 protested against this conclusion (lib. II, cap. 17 (1)), but in vain.
 
 THE LAW OF CHATTELS 67 
 
 some great nations are satisfied at the present day. It is, in 
 fact, one of the unique pecuHarities of Enghsh law that, having^ 
 started on this unpromising road of causae, it should very soon 
 have abandoned it for the broad highway of ' innominate '' 
 contracts. But that is a story which belongs to the next period. 
 Finally, we may note that, to the very close of this period, 
 there is nothing that would satisfy the modern definition of a 
 Tort, as a purely civil wrong, not being a breach 
 of contract, and remediable only in damages. The 
 private citizen could (under difficulties) bring his ' appeal of 
 felony,' sue out his Writ of Right, Assise of Novel Disseisin, 
 or Writ of Entry, or even his Writ of Trespass. But even this 
 last remedy, though it is now classed as an action of Tort, is 
 anomalous in that connection. It aimed originally, and, to a 
 certain extent, aims still, at punishment, rather than compensa- 
 tion — at fine and imprisonment, rather than 'damages' in the 
 modern sense. It was not long before English Law took the one 
 step needed to produce the modern scheme of legal remedies. 
 And when it did, it used the W>it of Trespass as the starting 
 point. For, as our masters have told us, " the King's courts 
 were approaching the field of tort through the field of crime." ^ 
 
 1 p. & M. II, 530. The writer's reasons for thinking that this is a truer view of 
 the situation than that of Sir Henry Maine, will be found at p. 13, ante.
 
 PERIOD III 
 
 EDWARD I TO THE COMMONWEALTH 
 1272-1660
 
 AUTHORITIES 
 
 Statutes of the Realm (including Acts and 
 Ordinances of the Interregnum), ed. 
 Firth and Rait (Stationery Office, 
 1911, 3 vols.). 
 
 Registrum Brevium, ed. Fitzherbert. 
 
 Year Books. 
 
 (New edition proceeding in S.S. pub- 
 lications.) 
 
 Littleton. Tenures. 
 
 Fortescue. De Laudibus Legum Anglice. 
 
 Fitzherbert. (Novel) Natura Brevium. 
 
 Coke. Institutes. 
 
 I. Commentary on Littleton. 
 II. Commentary on certain statutes. 
 
 III. High Treason. 
 
 IV. Jurisdiction. 
 Compleate Copyholder. 
 Book of Entries. 
 
 Reports by various reporters (quoted in 
 footnotes) . 
 
 West. Symbolaeographia. 
 
 TEXT-BOOKS 
 
 Ames, J. B. Origin of Uses and Trusts 
 (Select Essays in Anglo-American 
 Legal History, II, 737-752). 
 History of Parol Contracts Prior to, 
 and of. Assumpsit (Select Essays in 
 Anglo- American Legal History, III, 
 259-319). 
 The History of Trover (Select Essays 
 in Anglo-American . Legal History, 
 III, 417-445.) 
 
 Caillemer, R. The Executor in Eng- 
 land (Select Essays in Anglo- Ameri- 
 can Legal History, III, 746-769). 
 
 Campbell. Lives of the Chancellors (not 
 entirely trustworthy in detail). 
 
 Gross, C. The Mediaeval Law of In- 
 testacy (Select Essays in Anglo- 
 American Legal History, III, 723- 
 745). 
 
 Holdsworth, W. S. A History of Eng- 
 lish Law, Book II, Part I, chapters 
 Ill-end, and Part II (Methuen, 
 1909). 
 
 Holmes. The Common Law (Macmillan, 
 1882). 
 
 Maitland, F. W. Canon Law in Eng- 
 land (Methuen). 
 
 English Law and the Renaissance 
 (Select Essays in Anglo-American 
 Legal History, I, 168-207). 
 
 The History of the Reji^ter of Original 
 Writs (Select Essays in Anglo- 
 American Legal History, II, 549- 
 596). 
 
 Scrutton. Land in Fetters (1886), Co7n- 
 7nons and Common Fields (1887). 
 
 Sedgwick, A. G.. and Wait, F. S. The 
 History of the Action of Ejectment 
 (Select Essays in Anglo-American 
 Legal History, III, 611-645). 
 
 Stephen. History of the Criminal Law 
 of England, chapters iv-x (Mac- 
 millan, 1883, 3 vols.).
 
 • \ 
 
 CHAPTER VI 
 
 THE TRIUMPH OF THE KING'S COURTS 
 
 THE long period which we must now attempt to survey 
 is, at first sight, lacking in unity. Politically and 
 constitutionally, it begins with a strong but progressive 
 monarchy, followed by a period of internal disturbance, 
 verging on anarchy, itself succeeded by a strong and brilliant, 
 but stern and somewhat unsympathetic autocracy, finally, by 
 a political convulsion which shakes the State to its foundations. 
 And yet, disjointed as the period is to the student of public 
 or constitutional law, to the student of private law it is marked 
 by a singular and steady unity, which makes it one period 
 for his purpose. The outstanding feature is the slow but relent- 
 less crushing out, by the King's courts, of those many rivals 
 which, as we saw, divided with them the administration of justice 
 at the close of the preceding period. The preceding chapters 
 have attempted to show how the way was prepared for this 
 achievement ; it will now be well to say a few words as to the 
 steps by which it was accomplished. 
 
 We have seen ^ how skilfully the royal officials of the Norman 
 and Angevin reigns, especially the reign of Henry II, had under- 
 The Feudal mined, whilst professing to respect, the fundamental 
 Courts feudal principle, that questions of land tenure are 
 
 for the decision of the lord of the disputants, of whom they hold 
 their lands. In some countries, this principle went far beyond 
 the bare claim to decide land suits ; it involved claims to High, 
 Middle, and Low Justice of all kinds. Thanks to the circum- 
 stances of the Norman Conquest, and to the virility and political 
 genius of the Norman and Angevin kings, such claims were never 
 successfully established in England, save in the rare cases of the 
 Palatinate earldoms ; the many judicial franchises claimed by 
 the Church and the lay barons in the thirteenth century were 
 
 1 Ante, pp. 48-51.
 
 72 A SHORT HISTORY OF ENGLISH LAW 
 
 rather appropriations of the old local moots than assertions of 
 independent feudal right. These were carefully regulated by 
 the Statute of Gloucester, passed in the year 1278, ^ after the 
 compilation of the Hundred Rolls, with a view to the holding 
 of the great ' Quo Warranto ' enquiry ; and though it was 
 certainly deemed necessary, so late as the years 1391 and 1392, to 
 enact that ' from henceforth none of the King's subjects be forced, 
 compelled, nor in an}' way constrained, to come or appear before 
 the Council of any Lord or Lady, there to answer concerning 
 his freehold,' ^ yet it may fairly be surmised, that this necessity 
 was due rather to the general disturbance of that period, than to 
 any serious revival of feudal jurisdiction. 
 
 But the final blow which destroyed the feudal courts did 
 not fall until the fifteenth century. Even the statutes of 1391 and 
 h Id "^'^^~ SP^^^ only of freeholders ; from which it may 
 be inferred, that there was as yet no suggestion of 
 interfering with a lord's feudal jurisdiction over his serfs, at any 
 rate in questions relating to their tenements. But we remember 
 that it was just precisely in the reign of Richard II that the 
 Peasants' War, following upon the changes wrought by the 
 visitations of the Great Plague, virtually destroyed serfdom as 
 a personal status. It is not, therefore, surprising to find that, 
 half a century later, the villein tenants, or copyholders as they 
 were by that time called, ^ had succeeded in obtaining the protec- 
 tion of the King's courts for their holdings. In language of 
 extreme caution, which marks the novelty of the proposition, 
 Littleton admits* that, though a tenant in villenage holds, 
 in theory, at the will of his lord, yet eminent authorities have 
 stated from the Bench that, if such a tenant, duly rendering his 
 services, should be ejected by his lord, 'he shall have an action 
 of trespass against him.' For some little time longer, the King's 
 courts hesitated to interfere when the dispute was merely between 
 rival claimants of the tenement, in which case the lord would, 
 
 > 6 Edw. I. 
 
 ' 15 Ric. II, c. 12; confirmed in the following year (16 Ric. II, c. 2). 
 
 ' Because the particulars of their holdings were entered on the rolls or records 
 of the manor, and copies of such entries were (and are) in practice used as title- 
 deeds. The practice of keeping such rolls became universal after the Inquest which 
 resulted in the compilation of the Hundred Rolls. 
 
 * Tenures, a. 77. Littleton's famous treatise was written in the last quarter 
 of the fifteenth century. (Dr. Holdsworth informs one that the passage alluded 
 to was not incorporated into it till 1530.)
 
 TRIUMPPI OF THE KING'S COURTS 73 
 
 presumably, be impartial. But, ultimately, by the indirect 
 method of a ' Mandamus,' or order to the lord to carry out the 
 view taken of such a dispute by the King's court, the royal judges 
 assumed control in such matters also; and, by the end of this 
 period, the law of copyholds had become part of the common law, 
 in the sense that it was recognized and enforced by the King's 
 courts, though an indelible mark of its origin still survives, in 
 the rule that each holding is governed by the local custom of 
 the manor, in all those points not deemed to be 'unreasonable.' 
 The change is marked in legal literature bj^ the appearance of 
 Coke's little treatise entitled TJie Comyleate Copyholder, WTitten 
 about 1630. The change virtually put an end to feudal juris- 
 diction in England. 
 
 The triumph of the royal jurisdiction over the old popular 
 courts was equally complete. We have seen^ that, according 
 The Popular to Fitzherbert, the new action of Trespass, which was 
 Courts iq work such a revolution in legal procedure, could be 
 
 heard before the sheriff in the County Court as well as before the 
 King's justices. After all, the sheriff was a royal officer; and, 
 in a way, the County Court was a royal court .^ INIoreover, 
 a chapter of the famous Statute of Gloucester, of 1278,^ expressly 
 affirms the jurisdiction of the sheriff in pleas of Trespass, and 
 enacts that such pleas shall not come before the royal justices, 
 unless the plaintiff will swear that he has lost goods to the value 
 of forty shillings — a large sum in 1278. But, somehow, this 
 clause was interpreted in a way exactly opposite to its apparent 
 intention ; and it became a maxim that no claim could be heard 
 in the County Court, if it were for more than forty shillings. 
 As the value of money steadily sank, this maxim steadily reduced 
 the scope of the County Court jurisdiction ; and, though that 
 court lingered until the eighteenth century, its vitality was 
 gone. The still more humble Hundred Court, having largely 
 fallen into private hands, went the way of the feudal jurisdictions ; 
 and, though it, like the County Court, lingered on until the 
 establishment of the new statutory ' County Courts ' in the 
 year 1848, it was rather as a 'franchise' or form of feudal prop- 
 
 » Ante, p. 53. 
 
 ' Not only did the early kings, as has been said, encourage the holding of the 
 Shire and Hundred courts; they described them in ofiRcial documents as 'our 
 courts' (see, for example, the Writ of Tolt, in Blackstone, Comm., Ill, Appx. I). 
 
 '6 Edw. I, c. 8 (1).
 
 74 A SHORT HISTORY OF ENGLISH LAW 
 
 erty, than as part of the system of administering justice. In 
 the form of property, it can be, and is, claimed at the present day. 
 The activity of the Church courts was great until the Reforma- 
 tion ; and, before that momentous change, the King's courts 
 Church found in them formidable rivals. At the very be- 
 
 °^'^^ ginning of the period, the so-called statute of Cir- 
 
 cumspecte Agatis,^ makes handsome admissions as to the com- 
 petence of ecclesiastical tribunals ; though it incidentally affirms 
 the hotly contested claim of the royal judges to issue Writs of 
 Prohibition when the Church courts are exceeding their juris- 
 diction. The famous Statute of Heresies, in 1414,- virtually 
 gave the ecclesiastical judge the power of life and death, as well 
 as forfeiture, over laymen. Even the Reformation, though it 
 affirmed the sovereign judicial supremacy of the Crown, and vir- 
 tually destroyed the legislative independence of the Church, did 
 not, at first, seriously curtail the jurisdiction of the Church 
 courts. It was not until the greatly abused privilege of ' benefit 
 of clergy ' was taken in hand by Parliament, that a serious breach 
 was made in ecclesiastical jurisdiction ; for the failure of the 
 royal judges to maintain the compromise laid down by the Con- 
 stitutions of Clarendon on the subject of ' criminous clerks,' ^ 
 is the one striking defeat in their history. But a statute of 1531 ■* 
 deprived all but genuine clerics of the privilege of exemption 
 from criminal liability, in serious charges, and, five years later, ^ 
 the deprivation was extended to genuine clerics. A statute of 
 Elizabeth^ effected a sweeping reform in this direction; and 
 thus the most scandalous of all ecclesiastical privileges tended to 
 disappear. The greatest changes were, however, brought about 
 by the Civil War. For, though the statute of the Long Parlia- 
 ment, which abolished episcopacy and ecclesiastical jurisdiction 
 in ' root and branch,' was formally repealed at the Restoration,^ 
 much of the work formerly done by the Church courts had, during 
 the Commonwealth, been performed by the secular courts ; and 
 the successors of these, though they paid lip-service to the restored 
 
 ' Now generally attributed to the year 1285, and printed as 13 Edw. I, st. IH. 
 
 2 Hen. V, c. 7. 
 
 ' Cap. Ill (S.C. 138). The failure was, doubtless, due to the horror excited by 
 the murder of Beeket. 
 
 < 23 Hen. VIII. c. 1. ^ 28 Hen. VIII, c. 1. « 18 Eliz. (1576) c. 7. 
 
 "> 13 Car. II (16G1) st. I, cc. 2, 12. (But the latter statute contains significant 
 restrictions.)
 
 TRIUMPH OF THE KING'S COURTS 75 
 
 Church, were resolutely bent on retaining their newly-acquired 
 jurisdiction. The wonder really is, not that the Church courts 
 should have lost, during the Interregnum, practically all their 
 jurisdiction in such matters as defamation, fraud, and perjury, 
 but that they should have succeeded in recovering jurisdiction 
 in matrimonial and testamentary matters. 
 
 Over the last of their serious rivals, the mercantile courts 
 of the borough and the gild, the royal jurisdiction won no com- 
 The Courts plete triumph in this period. The medieval line of 
 Merchant distinction between the merchant and the ordinary 
 citizen was breaking down ; though the restriction of the new 
 bankruptcy jurisdiction, set up by Henry VIII and developed 
 by Elizabeth and James I,^ to the merchant or trading class, 
 served to perpetuate it. The publication of Malynes' Lex 
 Mercatoria in the early seventeenth century, by revealing, to a 
 profession always eager to extend the sphere of its operations, a 
 new and profitable territory, must have done a good deal to 
 prepare the way for the change which took place in the next 
 period, under the auspices of Lord INIansfield. The break-down 
 of the old exclusive trading privileges, which followed on the 
 expansion of world-commerce after the great discoveries of the 
 fifteenth and sixteenth centuries, must have also laid open the 
 secret monopolies of the mercantile courts. But we should do 
 wrongly to suppose that, by the time of the Restoration, the 
 King's courts were thoroughly familiar with mercantile trans- 
 actions. 
 
 Not unnaturally, we find it easier to describe the sources of 
 this unified Common Law than it was to range the scattered 
 materials for the previous period. For now^ the canons 
 of legal authority were becoming firmly settled ; and 
 judges and pleaders no longer considered themselves justified 
 in clutching at any text which would serve their purpose. In 
 other words, the meaning of the term 'source,' always ambiguous 
 in legal literature, undergoes a change in this period. We-jnust 
 not think now of * authorities ' as being the origin of legal rules, 
 but merely as the indisputable evidence of their existence. 
 For the King's courts have by now adopted the celebrated theory 
 
 » 34 and 35 Hen. VIII (1542) c. 4 ; 13 Eliz. (1570) c. 7 ; 1 Jac. (1603) c. 15 ; 21 
 Jac. (1623) c. 10. The first of these statutes is not in terms confined to traders ; but 
 the last three are. Their whole machinery was worked through the royal judges. 
 It must have done much to familiarize them with mercantile law.
 
 76 A SHORT HISTORY OF ENGLISH LAW 
 
 of the immemorial antiquity of the Common Law; and are 
 loth to admit that it can be changed or created by liuman 
 agency, even by Parliamentary statutes. But they will admit 
 that there are certain records or monuments whose testimonj^ is 
 unimpeachable. Where these are silent, it is the duty of the 
 judges themselves to apply existing principles to the new facts. 
 The famous theory was, perhaps, on the whole, the wisest that 
 could have been adopted. If it led to a somewhat oppressive 
 conservatism, it served as a strong barrier against arbitrary 
 despotism. 
 
 Foremost among the sources of this period, are the Acts of 
 Parliament, which, from the establishment of the great scheme 
 statutes of of Edward I in 1295, increase in volume and number, 
 the Realm gome, however, of the most important statutes in the 
 Book, such as those of Westminster (I and 11),^ Gloucester,- and 
 Winchester,^ come before the definite and final Parliamentary 
 scheme of 1295 ; and, at least until the end of the reign of Edward 
 II, there was a good deal of difficulty in distinguishing technically 
 between a true Act of Parliament, an Ordinance of the Council,* 
 a Writ of general import issued by the King,^ and even a privately 
 compiled report which had commended itself to people in au- 
 thority.^ Perhaps this is the reason why, on the introduction 
 of printing, the compilers of the first printed editions of the Statute 
 Book began their collections with the accession of Edward III ; ^ 
 later editions produced the older and omitted documents, under 
 the title of Antiqua Statuta.^ There is not even agreement as 
 to the authoritative form of such documents. Perhaps the 
 orthodox view is, that everything which appears on the Chancery 
 Statute Rolls (which run from 1278 to 1469) is authoritative; 
 and nothing else for that period.^ But, from the year 1290, it 
 was the practice also to record statutes on the Rolls of Parliament, 
 
 1 3 Edw. I (1275) ; 13 Edw. I (1285) st. I. 
 
 *6 Edw. I (1278). 
 
 ' 13 Edw. I (1285) St. II. 
 
 * E.g. the 'Statute of Merchants,' or 'Acton Burnel' (1283). 
 ^ E.g. ' Circumspecte Agntis,' attributed to 1285. 
 
 *E.g. 'Modus Levandi Fines' (printed as 18 Edw. I (1290) st. IV). 
 ' Afterwards called the Nova Statuta. 
 
 • The first attempt (by Pynson) wa.** incomplete. It was supplemented by Ber- 
 thelet in his Securida Pars Veterum Statutorum. 
 
 ' From 1407 onwards, the Acts so(>m to have been engrossed separately and re- 
 tained in the custody of the Clerk of the Parliaments. Certified transcripts are, 
 however, sent to the Record Office.
 
 TRIUMPH OF THE KING'S COURTS 77 
 
 which contain matter of all kinds; and it has been judicially 
 assumed that the Rolls of Parliament are also authoritative.^ At 
 first the statutes were recorded indifferently in French and Latin ; 
 from the accession of Henry VII, they appear to have been passed 
 and recorded in English. 
 
 Of hardly less importance than the Statute Book, as an author- 
 ity for the law of this period, is the so-called Registrum Brevium, 
 The ^^^ collection of the writs used for beginning or carry- 
 
 Register ing on legal proceedings. Of the origin of this collection, 
 something has previously been said ;^ but its origin is far 
 easier to understand than its character. The perverse thing about 
 it (to modern ideas) is, that there was no official or absolutely 
 conclusive edition or text of the Register ; no standard to which 
 copies could be referred if their accuracy was questioned. It is 
 easy to understand that such a compilation would require, as 
 we should say, re-editing from time to time; as additions and 
 corrections were rendered necessary by legislation and judicial 
 decision. But that is not the point. The point is that, even 
 though what purported to be an authoritative copy of the Register 
 was sent to Ireland in 1227,^ on the introduction of English Law 
 into the Pale, yet, in truth, no official edition ever existed. Many 
 copies were in the hands of the Chancery officials ; but there is 
 no reason to suppose that they were identical — the probability 
 is all the other way. Many copies found their way into private 
 hands ; they would be precious possessions for pleaders and liti- 
 gants. But whether a form of writ found in any copy of the 
 Register was authentic, would depend upon the view taken by 
 the clerk to whom application was made for its issue, and, 
 ultimately, on the attitude of the Court which tried the action. 
 
 As is well known, an important statute, dating from the very 
 commencement of this period, professed to lay it down that 
 Consimiiis new writs were to be framed whenever occasion for 
 
 *^"^ them arose.^ It is easy to exaggerate both the im- 
 
 portance and the failure of this celebrated Consimiiis Casus clause. 
 A study of the statute, which is evidently concerned with minor 
 
 ' Earl of Macclesfield's Case (1725) 16 St. Tr. pp. 1388-1390. 
 
 * Ante, pp. 45-6. 
 
 ' On this and all other points connected with the early history of the Register, 
 students should consult the brilliant series of articles by the late Professor Maitland, 
 published in the Harvard Law Review for 1889, and reprinted in the Select Essays 
 in Anglo-American Legal History (II, 549-596). 
 
 < Statute of Westminster the Second (13 Edw. I (1285) c. 24).
 
 78 A SHORT HISTORY OF ENGLISH LAW 
 
 technical objections rather than with defects of principle, may 
 well cause us to doubt whether the Parliament of 1285 intended 
 to place in the hands of the Chancery clerks ^ what appears, at 
 first sight, to be practically an unlimited power to make new law. 
 On the other hand, the great and undeniable development of 
 the Action of Case, which followed swiftly upon the passing of 
 the statute, seems to suggest that, though the inventive vigour 
 and bold spirit of innovation which had characterized the judges 
 of Bracton's day, had been replaced by the more timid and con- 
 servative attitude of their successors in the fourteenth century, 
 yet that the Register of Writs remained a flexible and expanding 
 document until the commencement of the sixteenth century. 
 By that time, the invention of printing had come to revolutionize 
 the world ; and editions of the Register promptly appeared 
 in the new stereotyped form. Then the days of expansion were 
 really over. Rastell's edition of 1531 was made by Fitzherbert 
 the basis of his celebrated commentary ; ^ but Theloall's edition 
 of 1579 seems ultimately to have been accepted as the quasi- 
 official version. 
 
 Hardly less anomalous than the Register of Writs, and still 
 more mysterious, are the celebrated Year Books, which profess 
 to be reports of cases decided in the King's courts between the 
 middle of the thirteenth and the middle of the sixteenth cen- 
 The Year turies. They are entirely anonymous, and, as their 
 ®°°^^ popular title implies, are grouped under the regnal 
 
 years of the various kings with whose reigns they deal. It was, 
 apparently, these two facts which, supported by certain mis- 
 understood words of Plowden, Coke, and Sir Francis Bacon, begot 
 the extraordinary legend that the Year Books are official com- 
 pilations, drawn up by the prothonotaries or other officials of 
 the various courts, appointed and paid for the purpose. That 
 such a belief should be held by intelligent men who had actually 
 
 * This statutory provision produced a yet further classification of Writs Original 
 into (a) De Cursu, or writs of course in the strictest sense, issued by the Cursitors 
 on payment of the ordinary fee, and (h) Magistralia, i.e. those issued by the Clerk 
 or Masters in Chancery under the Statute of 1285. 
 
 ^ New Nalura Brevium. Many editions, of which the most convenient for students 
 is that which appeared in English in the eighteenth century, with notes attributed 
 to Sir Matthew Hale and Sir W adhani Windham. The word " New " in Fitzherbert's 
 title is due to the fact that, as he himself says in his brief Preface, a previous com- 
 mentary (generally described as the Old Nalura Brevium) had appeared, and had 
 been vulgarized by being translated into English. In the early sixteenth century, 
 it was still heretical to write in English.
 
 TRIUMPH OF THE KING'S COURTS 79 
 
 made acquaintance with the Year Books, seems well-nigh im- 
 possible ; nothing more unlike an official publication can well be 
 imagined. And yet, that it was the accepted view of the eight- 
 eenth century, seems proved by the well-known passage in 
 Blackstone's Commentaries,^ in which that great writer states 
 it without a shadow of suspicion or comment. Perhaps the 
 true explanation is, that the Year Books had ceased to be read 
 in their original form by the end of the seventeenth century ; 
 having been superseded by the Abridgements of Fitzherbert, 
 Brooke, Rolle, Hale, and other eminent and industrious analyists. 
 For this fact, if it be a fact, there was every excuse. If the 
 editions of the Register are confusing, the older printed editions 
 of the Year Books ^ are a weltering mass of inaccuracies and 
 contradictions, through which none but a specially trained expert 
 can make his way. It is one of the many reasons for which the 
 student of English legal history laments the untimely death of 
 Professor Maitland, that it cut him off from the completion of 
 the taslT which, at the instance of the Selden Society, he had 
 undertaken, of editing an intelligible and trustworthy edition 
 of the Year Books. That great scholar was, however, happily 
 permitted to live until he had given to the world three instal- 
 ments of his projected enterprise ; ^ and in the first of these, in 
 the early pages of a masterly Introduction, the editor disposes 
 for ever of the ancient legend, and convinces us that in the Year 
 Books we have, not a dry official publication (for why, indeed, 
 duplicate that magnificent series of records which was every 
 year accumulating in the royal archives ?), but a series of informal 
 notes, very human, very gossipy, probably not free from gross 
 inaccuracy, but, on the whole, extraordinarily vivid and realistic, 
 compiled by the students and apprentices of the law, who haunted 
 the King's courts, and jotted down things worthy of remembrance 
 by themselves and those who should come after them. Slowly 
 these note-books were accumulated by the practitioners of the 
 law;^ and, by the end of the period, were regarded with almost 
 
 ' I, 72. 
 
 ' The best known is that printed in 1679. But there are fragmentary printed 
 editions scattered all over the latter half of the sixteenth century. 
 
 ^ These are vols. 17, 19, and 20 in the S.S. series. Two other volumes (22, 24), 
 partly by other hands, have since appeared. 
 
 * The most famous of the later collectors was the great Serjeant Maynard. The 
 story told by Roger North of his passionate fondness for the Year Books is well 
 known, and is reprinted on the title-pages of the Selden Society's volumes.
 
 80 A SHORT HISTORY OF ENGLISH LAW 
 
 superstitious reverence. Whether they can safely be treated 
 as trustworthy, is a problem which each student must solve 
 for himself. 
 
 A few other accounts of the decisions of the King's courts 
 in the earlier part of this period are available. The new Court 
 other of Chancery which acquired an independent existence 
 
 Reports g^g g^ judicial tribunal in the fourteenth century, and 
 took up the task of expanding the common law^ when the Register 
 of Writs was inclined to drop it, was not likely to be deficient in 
 the matter of records ; and some of these have been published 
 by the Selden Society.^ The Court of Star Chamber had a 
 great and permanent influence in the development of the Common 
 Law; and, fortunately, some accounts of its proceedings have 
 been preserved and published.^ For the later part of the period, 
 we have the works of the ' nominate ' reporters — Dyer, Leonard, 
 Plowden, Coke, Croke, and others. Some of these are of high 
 merit ; almost all of them are infinitely easier for a student to 
 understand than the grotesque language of the Year Books. 
 The Books of Entries, or forms of pleading, which appeared soon 
 after the introduction of printing, are really in the nature of 
 reports ; for the precedents which they give us are, obviously, 
 those, and only those, which have stood the fire of judicial 
 criticism. ^ 
 
 Finally, a word must be said about the text-books of this 
 period; for, whatever may have been their reception by their 
 contemporaries, some of them, at least, were accepted 
 as gospel by the succeeding generation. Passing by 
 the epitomes of Bracton's great work, known under the titles of 
 Fleta and Britton, and the picturesque but untrustworthy Mirror 
 of Justices, attributed to Andrew Horn, Town Clerk of London in 
 the late thirteenth century,^ we must mention the names of 
 
 ' To the practitioner. Equity, the rules of the Court of Chancery, is contrasted 
 with the Common Law, or doctrines developed by the older royal tribunals. 
 But, in the historical sense, Equity is part of the Common Law, the law administered 
 by the King's courts, and common to all the land. 
 
 ^Select Cases in Chancery, edited by W. P. Baildon (S.S. vol. 10). There is 
 an older volume in the Record Series {Calendar of the Proceedings in Chancery, 
 edited by J. Bayley, 3 vols. 1827-1832) . 
 
 ' Select Pletis of the Court of Star Chamber, edited by I. S. Leadam (S.S. vols. 16, 
 25) ; Les Reportes del Cases in Camera Stellata (Hawarde MS.) edited by W. P. 
 Baildon (1894, priv. print.). 
 
 « Early compilers are Smythe (1546), Rastell (1564), Coke (1614). 
 
 'Edited by Whittaker and Maitland (S.S. vol. 7).
 
 TRIUMPH OF THE KING'S COURTS 81 
 
 Littleton, Fortescue, Fitzherbert, and Coke. The first was 
 
 ,. , , the author of the treatise to which Coke has given im- 
 
 Littleton . . '^ 
 
 mortality, viz. The New Tenures, probably composed 
 in Norman French about the year 1475, but speedily translated 
 into English, and printed in both languages.^ As with Fitz- 
 herbert 's Natura Brevium, it had been preceded by an 
 anonymous treatise on Tenures, which still survives, and, to 
 distinguish it from its famous successor, is known as The Old 
 Tenures. Littleton's treatise is written in the form of letters 
 to the author's son, supposed to be a student at Cambridge; 
 and, if, as family correspondence, it appears to be a trifle heavy, 
 we may console ourselves with the reflection that, as legal litera- 
 ture, it is unusually clear and brief. Separated from Coke's 
 ponderous commentary, it is a mere pamphlet ; but a pamphlet 
 of which every word has been weighed with scrupulous accuracy. 
 Fortescue, whose work De Laiidihus Legum Angliae,'^ 
 may be mentioned, was a contemporary of Littleton ; 
 a Lancastrian, while Littleton was a Yorkist. Fortescue was, 
 however, a politician rather than a lawyer ; and his treatise is 
 
 useful rather for its general observations than as a 
 Fitzherbert . c i i i t-i- i i 
 
 precise statement oi legal rules. J^ itzherbert, whose 
 
 Neiv Natura Brevium has already been mentioned, lived half a 
 century after Littleton, was, like him, a Justice of the Common 
 Pleas, and was the author also of an Ahridgement of the Year 
 Books, as well as of treatises on The Diversity of Courts 
 and The Justice of the Peace. To him is also attributed, 
 though he modestly laid no claim to it,, a deeply interesting 
 Treatise on Husbandry, in which we see the beginnings of the 
 great dispute between the old-fashioned open field (or 'cham- 
 paign ') farming, and the new ' several ' or enclosed system. 
 
 Coke's weighty volumes are known to most students of 
 Coke . 
 
 law. His chief work was his Institutes of the Laws of 
 England, in four parts ; the first consisting of the famous 
 commentary on Littleton's treatise, the second of an Exposition 
 of Many Ancient and Other Statutes, the third of a treatise on 
 Pleas of the Crown, and the fourth of the Jurisdiction of Courts. 
 The first two parts were published in Coke's lifetime (about 
 
 * Printed copies appear dated from 1516. Editions supposed to reach back to 
 14 Si, but undated, are extant. 
 ' Ed. Lord Clermont.
 
 82 A SHORT HISTORY OF ENGLISH LAW 
 
 1628) ; the last two, somewhat disfigured by the heat of the 
 poHtical combat into which Coke was drawn, after his death 
 (about 1644). Beyond the Institutes, Coke wrote another book, 
 previously referred to, of first-class importance, viz. The 
 Compleate Copyholder, first published in 1630, The list of his 
 works includes also the Little Treatise on Bail and Mainprize 
 (1635). 
 
 Finally, reference should be made to William West's valuable 
 Symholaeographia, or collection of forms used by notaries and 
 scriveners at the end of the sixteenth century, published by 
 Tothill in 1590. These have, of course, no oflEicial value; but 
 they throw great light on the conveyancing practice of the day. 
 It is interesting to note that, although attorneys were apparently 
 excluded from conveyancing (at least in London) till the seven- 
 teenth century, the author of this collection was himself an 
 attorney.
 
 CHAPTER VII 
 
 NEW INTERESTS IN LAND 
 
 THE broad outlines of English real property law had been 
 drawn in the scheme of tenures described in a previous 
 chapter ; ^ and they remained substantially unaltered, in 
 theory at least, for a period of four hundred years. Even the 
 Act of Abolition of Military Tenures,^ with which the next period 
 opens, though it removed a part of the ancient fabric and some 
 picturesque details of the remainder, left the building per- 
 fectly recognizable. It may be claimed, indeed, that even the 
 sweeping legislation of the nineteenth century has not affected the 
 ground-plan of the edifice ; though it has revolutionized the 
 internal arrangements. At this stage, therefore, we have 
 but to fill in the chief details added to the original scheme by 
 the later medieval judges and conveyancers. 
 
 The original idea of the scheme of tenures was, as we have 
 seen, based upon the seisin or possession of land by the tenant. 
 Future This seisin might be for life only (' freehold ')» or 
 
 Interests f^j. ^j^ hereditary interest (' fee ') ; but, in either 
 case, the tenant was seised ' in his demesne,' i.e. as actual oc- 
 cupant or ' terre-tenant,' responsible to the State for military 
 service and other dues, and, therefore, entitled to claim the pro- 
 tection of the royal tribunals. 
 
 But it will be remembered, that the principle of tenure is 
 essentially relative. If it implies possession in the tenant, it 
 Reversions ^^^^ implies lordship, with its attendant rights to 
 fealty, service, and other profits, in the lord. So 
 long also as the tenant's interest was limited by existing lives, 
 the lord had a substantial prospect of resuming possession of 
 the land after its expiry ; and, even after hereditary estates 
 had come to be recognized, in days when the extinction of whole 
 
 ^ Ante, pp. 27-31. 
 
 * 12 Car. II (1660) c. 24. The credit of the measure belongs, of course, to the 
 Long Parliament, whose Act the Restoration Parliament adopted .
 
 84 A SHORT HISTORY OF ENGLISH LAW 
 
 families by war was no uncommon event, there was the ultimate 
 
 prospect of an ' escheat ' on failure of the tenant's heirs, or 
 
 corruption of his blood by attaint. 
 
 It is quite impossible to imagine that, in the later years of 
 
 the preceding period, this valuable interest of the lord was 
 
 not recognized as a legal institution. We are, in fact, expressly 
 
 told by the famous Statute De Donis,^ that, in 1285, the royal 
 
 Chancery was familiar with a writ framed for the purpose of 
 
 protecting a much more shadowy interest, viz. the right of the 
 
 lord to recover the land after the expiry of an hereditary estate 
 
 limited to the issue of the tenant — of which more presently. 
 
 We may, therefore, fairly assume that, under the names of 
 
 'lordship,' 'seignory,' 'reversion,' and other equivalents, the 
 
 interest of the lord, and particularly his right that the land should 
 
 'revert' to him after the expiry of the tenant's interest, was 
 
 fully recognized by law, even before the commencement of 
 
 the period now under discussion. Moreover, it was not in 
 
 the least necessary that any express claim to the right should 
 
 have been made when the tenure was created. A reversion 
 
 has always been 'an estate which arises by operation of law.' 
 
 Any express reservation was merely redundant, and, before 
 
 modern legislation, purely inoperative. 
 
 j A different idea began to develop when the creator of a 
 
 tenancy was allowed to name a succession of tenants, instead 
 
 ^ . , of creating an hereditarv estate — to say that after 
 Remainders i i i i i i "^i i t^ i tt 
 
 A was dead the land should go to B, and so on. Here 
 
 would arise a difficulty which, to a primitive tribunal, is always 
 formidable, but, to tribunals which were beginning to attach a 
 special value to seisin or possession, was peculiarly formidable, 
 viz. the difficulty of recognizing a claim not evidenced by posses- 
 sion. During A's lifetime, what was the position of B ? He was 
 merely a person who might, if he chanced to survive A, put in 
 a claim to the land. But such a claim must, in the days when 
 most tenures were created by word of mouth, have appeared 
 to be very shadowy, very likely to lead to quarrels between the 
 claimant and the lord who desired to resume possession after 
 the first tenant's death. In any case, it was not an estate, but 
 a 'mere right.' Nevertheless, there is some reason to believe 
 
 ' 13 Edw. I, c. 1 (4). It seems to have been a Writ of Entry. Professor Maitland 
 has traced it back to the year 1219 {Bracton'a Note Book, Vol. II, 54).
 
 NEW INTERESTS IN LAND 85 
 
 that even a remainder after an estate of inheritance was be- 
 ginning to be recognized by the authorities before the death of 
 Henry III ; though we must remember that Bracton, from whom 
 we learn most about it/ is always inclined to anticipate the 
 slow development of practice. At least we can say that, at the 
 very beginning of our present period, the technical distinction 
 between a 'reversion' and a 'remainder' appears to be familiar 
 to the framers of a first-class statute.^ 
 
 But, when the notion of the future estate is once admitted, 
 there is no reason why it should stop at the simple limitations of 
 Contingent the early remainders. The real difficulty had been, 
 Remainders ^q persuade the courts that an interest in land could 
 be conferred otherwise than by way of corporal investiture or 
 delivery — a mode of creation obviously inapplicable to a 
 future interest. That difficulty once overcome, it was certain 
 that, in course of time, conveyancers would claim to be able to 
 dispose of future interests in favour of persons unknown or 
 unascertained at the date of the conveyance. If, on the expiry 
 Abeyance of the preceding estate, such persons were not in a 
 of Seisin position to claim seisin of the land, of course their 
 rights would vanish. The land would either go to the claimant 
 next in succession, or revert to the lord ; for the seisin could 
 not be allowed to fall into abeyance. For a similar reason, the 
 donor could not, in naming the order of succession, interpolate 
 the slightest interval between the expiry of one interest and the 
 succession of the next. For that also would have been a deliber- 
 ate provision for abeyance of seisin. 
 
 Apparently, this further development was struggling to ob- 
 tain recognition in the middle of the fourteenth century; for 
 Contingent we find it elaborately discussed at that time by 
 Remainders ^^^ ^^^ Court of Chancery, or at any rate by the 
 Chancellor.^ The earliest form in which it was attempted to 
 create contingent remainders seems to have been that of a limi- 
 tation to the heirs of a living person. Now a living person 
 cannot, of course, ha ve^n lieiflnemo est haeres viventis) ; whence 
 
 ' Lib. II, cap. 6 (1). Bracton describes such a remainder as an estate on con- 
 dition. Later on (lib. II, cap. 31 (3), he announces his intention of setting out 
 the special writ which will enable the remainder-man to get the land when his turn 
 comes. Bracton does not, however, fulfil his promise. 
 
 ' 3 Edw. I (1275) c. 40 ('lands or tenements . . . which ought to descend, revert, 
 remain, or escheat')- 
 
 »Y.B. 38 Edw. Ill, Mich. (1364) fo. 26.
 
 86 A SHORT HISTORY OF ENGLISH LAW 
 
 it follows that, unless the person in question dies before the 
 right of the remainderman to claim possession arises, the latter's 
 right, for the reason given above, is gone. But, in 1364, the 
 Chancellor said that such a limitation would be void from the 
 beginning ; and though, more than half a century later,^ it 
 seems to have passed as good, the later case was one of a devise 
 under local custom, and so does not count for very much. Little- 
 ton, who was as inclined to be conservative, as Bracton had been to 
 take the enterprising line, says boldly, that 'every remainder 
 which beginneth by deed, it behoveth that the remainder be 
 in him to whom the remainder is entailed by force of the same 
 deed, before the livery of seisin is made to him which shall have 
 the freehold';- which, obviously, could not be the case if the 
 remainderman were then unascertained. By Coke's time, 
 however, the law had completely changed ; ^ and, subject to 
 certain rules about remote or improbable contingencies, the 
 lawfulness of contingent remainders was then fully admitted. 
 One of the earliest and best cases is that of Colthirst v. Bejushin, 
 in 1550. * By that time, also, the distinction between a remainder 
 and a conditional estate had become clearly marked by the adop- 
 tion of the rule, that no condition could be made enforceable by 
 a third party; a rule which was probably dictated by fear of 
 'maintenance,' or stirring up of lawsuits, but which was con- 
 nected also with another event, of which a brief account must 
 now be given. 
 
 We have seen,^ that Bracton was familiar, in theory at least, 
 with the estate of inheritance confined to the actual issue of 
 ^ the original tenant, and that he assumed that it 
 
 was even possible to limit a remainder after it. Such 
 an estate seems generally to have been gi\'en as a inarita- 
 (jium, or endowment on the marriage of one of the donor's 
 children. It was naturally assumed by the donor that, on the 
 failure of the donee's issue, the land would revert to the family 
 stock ; but, apparentl}^ led away by the idea of ' conditional 
 gifts,' the King's courts had come to hold, in the early thirteenth 
 century, that a gift *to A and the heirs of his body' was a gift 
 which, on the birth of issue to A, became an absolute gift of an 
 estate of full inheritance in A, to do what he liked v;ith. 
 
 'Y.B. 9 Hen. VI, Trin. (1431) pi. 19. 23. 721. 
 
 » Co. Litt. 378a. ■• Plowd. 21. ^ Ante, v>. S5.
 
 NEW INTERESTS IN LAND 87 
 
 Naturally, such doctrine was extremely unpalatable to the 
 great landowners, who had created appanages out of their 
 . family estates, and who saw these appanages now 
 finally split away from the main stock. Signs of 
 their wrath appear during the previous period ; ^ but their great 
 triumph was not achieved until 1285, when the first chapter of 
 the Statute of Westminster the Second,^ the famous chapter 
 De Donis Conditionalihus, enacted that, on failure of the donee's 
 issue, the land should revert to the donor or his heirs ; not- 
 withstanding any intervening alienation. The statute, how- 
 ever, went far bej'ond the demand of the donors ; and, perhaps 
 unconsciously, in its anxiety to justify its policy, proceeded 
 to protect, not only the donors and their heirs, but the issue 
 of the donee himself, from unauthorized alienation^ and to pro- 
 vide a special remedy (the Writ of Formedon in the Descender) 
 for this object. Thus the statute created a new kind of in- 
 heritable estate, differing from the older ' fee simple,' not only 
 in the fact that it could only be inherited by the direct lineal 
 issue of the original donee, but in the fact that no alienation,- 
 howev'er solemn,^ by the holder for the time being, could avail 
 against the rights of the * issue in talk' Such an interest, though 
 an estate of inheritance, was manifestly inferior, from the point 
 of view of the holder, to the wider ' fee simple ' ; it went back 
 on history, and deprived the holder of that right of free alienation 
 which, as we have seen,"* he had gradually won against his lord 
 and his heirs. His fee was taUiatum, or cut down, into a 'fee 
 tail.' It is true that, by somewhat later doctrine, he could, even 
 by a common foefTment, put the issue in tail to some inconven- 
 ience, by depriving them of, their right of entry on his death, 
 and compelling them to resort to their statutory right of action 
 (forniedon) .^ 
 
 But this was probably not until after, with the connivance 
 of the courts, and by clever use of the doctrine of warranty, 
 the tenant in tail had achieved the far completer triumph 
 
 1 Provisions of Oxford of 1258, art. 27 (S.C. 386). 
 
 2 13 Edw. I, c. 1. 
 
 ' The statute (s. 4) expressly provides that a Fine (of which something later) 
 shall be ineffectual to alienate the new estate. 
 
 < Ante, pp. 37-39. 
 
 ^ Litt. s. 597. To the layman, the inconvenience might appear to be slight. In 
 fact, it caused the heir in tail considerable expense and delay. He could not use 
 the simple process of 'Ejectment,' to be hereafter explained.
 
 88 A SHORT HISTORY OF ENGLISH LAW 
 
 of defeating entirely the claims of lord and issue alike, by the 
 Common process afterwards known as a Common Recovery. 
 Recovery q^j^g date usuallv quoted for this complete defeat 
 of the statute De Donis is 1473, the date of the celebrated de- 
 cision in TaUarum's Case; ^ but the device can easily be traced 
 back for nearly a century,- and is even suggested by a case of 
 the year 1340.^ Thus it would appear, that the inalienable 
 inheritance, the ideal of every feudal aristocracy, was in fact 
 realized in England for little longer than half a century. Its 
 abolition is the classical justification of the somewhat clumsy 
 reforming agency known as the ' legal fiction.' Of the nature 
 of Fines and Recoveries, somewhat will be said in the next 
 chapter. 
 
 A third, and, for the future, highly important interest, must 
 next be noticed. The term of years was already familiar to 
 Terms of Glauville, who gives '' a form of writ to recover land 
 ^^"^ which has been pledged to the defendant 'ad ter- 
 
 ininum qui praeteriit ' ; and this will suggest to us, that the 
 early holders for terms of years were creditors who, unable by 
 reason of the laws against usury, to charge interest openly, had 
 bargained to be allowed to hold their debtor's land until, out of 
 the rents and profits, they had repaid themselves with inter- 
 est.^ 
 
 Such a transaction is treated by Glanville as a mere 'contract' 
 or 'cause.' It did not give the creditor seisin of the land which 
 had been ' bailed ' or pledged to him ; in all probability he was 
 merely entitled to secure himself by acting as the lord's bailift* 
 or manager of the land, in which capacity rents in money and 
 kind would come into his hands. It is conceivable, also, that, 
 even in those early days, a lord w^ho was starting oft' on a Crusade 
 might think it safer and more convenient to give his steward a 
 promise of a fixed term of office, in return for a promise of a ferm, 
 or fixed annual rent, instead of an account of the actual receipts 
 and outgoings. 
 
 But, by the time of Bracton, it becomes obvious that the 
 
 1 Y.B. 12 Edw. IV. fo. 19, pi. 25. 
 
 * 9 Ric. II (1385) c. 3. As the statute alludes to 'tenant in tail after possibility,' 
 it can hardly have overlooked the case of the ordinary tenant in tail. 
 
 3 Y.B. (Record Series) 14 Edw. Ill, 104. 
 
 * Lib X, cup. 9. 
 
 ^ This was vif gage, a more merciful form than the morl gage, in which the rents 
 did not go to reduce the capital debt.
 
 NEW INTERESTS IN LAND 89 
 
 creation of terms of years is proceeding apace, and with objects 
 Bractons other than providing security for debts. Bracton^ 
 ^'®^ treats the ' donee for term of years ' as acquiring 
 
 property; not, he is careful to explain, a free tenement, but 
 still, something a good deal more than a mere pledge. He 
 cannot deny that the termor has possession ; and thereupon 
 arises a question, which evidently causes Bracton much perplex- 
 ity. What about the lessor's seisin? If you deprive the lessor 
 of his seisin, he will not be able to protect his interests, should 
 these be assailed by a stranger, by using the possessory assises, 
 or even the Writs of Entry. This is a heavy penalty ; so Bracton 
 cannot bring himself to impose it. On the other hand, if the 
 lessor has seisin, what about the termor? Obviously, there 
 cannot be two independent seisins of the same land. So, prob- 
 ably as the result of Bracton's reasoning, the historic question 
 was settled ; and it was decided that the interest of the termor 
 was a chattel interest, which could be bequeathed by will even 
 though it was an interest in land, could be seized by a judgment 
 creditor as part of tlie debtor's goods, and could be created and 
 transferred by mere word of mouth or WTiting, without livery of 
 seisin. 
 
 But the view that the termor had not a free tenement left 
 him somewhat naked against attack. If, as became common in 
 Seisin and the later thirteenth century, his term had been 
 Possession created by a sealed covenant, he could protect him- 
 self by the appropriate Writ of Covenant against his lord. 
 But, in the first place, such an action, even if successful, would 
 only entitle the termor to damages, ^ not to delivery of the 
 land itself. In the second, if the disturbance of the termor 
 had been by a stranger, he (the termor) could sue neither the 
 stranger, for the stranger was no party to the covenant, nor 
 the lessor, for the latter had not interfered ; while, in Bracton's 
 day, a lease for years implied no warranty of title.^ Appar- 
 ently, Bracton considered that the termor was amply protected 
 
 1 Lib. I, cap. 9. 
 
 » At least, this was so in later days. But see Statute of Gloucester (6 Edw. I 
 (1278)) c. 11 ('recovery by Writ of Covenant')- And note the explicit statement 
 attributed to Belknap, C.J., by Bellewe, in his Les Ans du Roy Richard Le Second 
 at p. 159, under the year 1382. The 'covenant real,' as a common law remedy, 
 probably died out with the improvement in the remedy by Ejectment, to be after- 
 wards explained (Post, pp. 175-177). 
 
 ' Lib. II, cap. 9, ad fin.
 
 so A SHORT HISTORY OF ENGLISH LAW 
 
 by a special Writjof Qware Ejecit infra Terminum; ^ but, for 
 some unknown reason, the later law refused to allow this action 
 to be brought against any but the lessor and the latter's feoffees. 
 Ultimately, the termor found salvation in the Writ of ej actio 
 firmae, a variety of that Writ of Trespass, which, as we have 
 seen," was so striking a feature of the last quarter of the thir- 
 teenth century, and which protected, not merely seisin, but 
 any physical possession. It is true that, until the middle of 
 the fifteenth century, only damages could be recovered by the 
 Writ of Ejectment ; but, as we shall later see, a momentous 
 step was then taken, which made the term of years the best 
 protected of all interests in land. Meanwhile, the Statute of 
 Gloucester^ had enabled the termor to defeat the lessor who 
 was endeavouring to get rid of him by suffering a ' Common 
 Recovery,' by showing the real facts ;^ and this statute, which 
 seems to have applied only to London, was made general in 
 1529.^ Before this latter date, however, the termor had defi- 
 nitely established his footing in the scheme of tenure ; for 
 Littleton ^ treats him as a tenant, and even compels him, though 
 wdth evident hesitation, to do fealty to his lessor ; ^ while, 
 shortly after, the Covenants Act of 1540,^ by making conditions 
 and covenants in leases enforceable against purchasers of the 
 reversion, must have added greatly to the stability and value of 
 terms of years. But the curious history of the term of years 
 remains, to the present day, vividly impressed upon its present 
 position ; it stands midway between real and personal property 
 — neither wholly real, nor wholly chattel, but a ' chattel real.' 
 The gradual definition of the various estates in land which, 
 as we have seen, took place in the thirteenth century, was, 
 without doubt, responsible also for the appearance 
 of the lg,w of waste. A man who has but a tempo- 
 rary interest in a piece of land cannot be allowed to treat it as 
 if he were absolute owner. His natural tendency is to make 
 
 > Lib. IV, cap. 36. The form of the writ is given. Bracton, forgetful of his 
 former distinction, here makes the termor recover his 'seisin.' 
 
 « Ante, pp. 52-54. ^ g Edw. I (1278) c. 11. 
 
 * The fiction appears to have been, that the title of the collusive plaintiff was 
 deemed to have accrued before the date of the termor's lease. Thus, if the collusive 
 plaintiff had recovered judgment against the true lessor, he could have ejected the 
 lessee, and handed the land back to the lessor. 
 
 *21 Hen. VIII, c. .36. « Ss. 58-60. 
 
 ' S. 132. 8 32 Hen. VIII, c. 34.
 
 NEW INTERESTS IN LAND 91 
 
 the most of his brief opportunities, regardless of the interests 
 
 of his successors. But, equally naturally, these latter will 
 
 seek to be protected against unfair treatment. 
 
 As a matter of fact, the appearance of an express Law of 
 
 Waste begins, not with ordinary tenants, but with guardians. 
 
 ^ .. As we have seen, ^ the custody of the infant heir 
 
 Guardians » , • i • i "^ i 
 
 of a deceased tenant m chivalry belonged, on feudal 
 
 principles, to his lord, and was accompanied by custody of 
 
 the ward's inheritance. This position was frequently abused 
 
 by guardians, who treated their positions simply as opportunities 
 
 for plunder ; and particularly in the numerous guardianships 
 
 which fell to the Crown as supreme lord of every fief, and direct 
 
 lord of the tenants in capite. Accordingly, the Great Charter 
 
 of John contains strict promise of amendment in this respect ; 
 
 the guardian is to take from the land nothing more than the 
 
 customary issues, and he is to maintain the buildings and other 
 
 plenishings of the estate in good condition." The Charter 
 
 of 1215 apparently applied only to guardians in chivalry; but 
 
 the prohibition against waste was extended by the Statute of 
 
 Marlborough^ to guardians in socage. The same statute* 
 
 also enacted that ' termors, during their terms, shall not make 
 
 waste, sale, nor exile, of houses, woods, or men ' ; and the Statute 
 
 of Gloucester,^ enumerating the persons against whom a Writ 
 
 of Waste will lie, includes also tenants for life, whether by act 
 
 of the parties or by operation of law.^ The Writ of Waste 
 
 entitled the successful plaintiff to forfeiture of the place wasted 
 
 and three-fold damages ; but, though a solemn decision of the 
 
 King in Parliament in Gmvin Butler's Case ^ laid it down, that 
 
 the heir of the reversioner or remainderman in whose lifetime the 
 
 waste had been committed should be entitled to the Writ of 
 
 Waste, yet there remained other technicalities which made the 
 
 Writ of Waste a somewhat imperfect remedy, and its place was 
 
 largely taken by the new action of Trespass on the Case, to be 
 
 hereafter described.^ According to later law, the tenant for 
 
 years (though not the tenant for life) is responsible, not merely 
 
 1 Ante, pp. 34-35. 
 
 * Magna Carta, capp. 4, 5 (S.C. 297). The prohibition was re-enacted by the 
 Statute of Westminster the First (3 Edw. I (1275) c. 21). 
 
 3 52 Hen. Ill (1267) c. 17. ^ Cap. 23. ^6 Edw. 1 (1278) c. 5. 
 
 * E.g. a dowress, or a tenant 'by the curtesy.' 
 
 7 Printed among the statutes as 20 Edw. I (1291) st. II. » Post, pp. 136-144.
 
 92 A SHORT HISTORY OF ENGLISH LAW 
 
 for ' active ' or ' positive ' waste, but for mere failure to keep 
 the premises in repair ; the thirteenth century statutes, how- 
 ever, afford no authority for such a proposition. The Statute 
 of ^Marlborough also clearly recognizes ^ the right of the creator 
 of the estate to release his tenant from liability for ' waste ' ; 
 and the ' tenant for life without impeachment of waste ' became 
 a very common figure in the books of later daj's. So full an 
 advantage, indeed, did such persons take of the liberty thus 
 accorded to them, that, early in the succeeding period,^ they 
 had to be curbed by the introduction of the doctrine of equitable 
 waste, i.e. waste so outrageous, that even a tenant ' without 
 impeachment ' would be restrained by a Court of Equity from 
 committing it. 
 
 At the very beginning of our present period, the King's courts 
 were faced with the peculiarly difficult task of applying the 
 Incorporeal j^ew and highly popular possessory remedies to a 
 ments class of interests ill fitted to receive them. These 
 
 were the 'incorporeal hereditaments' of later times, i.e. those 
 limited and strictly defined rights over land which do not in- 
 clude possession of the soil, but merely the power to do certain 
 definite acts which the possessor of the soil would otherwise 
 be entitled to resent, or to restrain the possessor of the soil 
 from doing something which he would otherwise, as a matter 
 of common right, be entitled to do. Such limited rights are 
 especially suitable for philosophic analysis; and the terms 
 'jura in re aliena,' 'servitudes,' 'fractional rights,' applied 
 to them by jurists, are useful as impressing upon students 
 their peculiar characteristics. Historically, however, they 
 appear to have arisen in an entirely haphazard way ; partly 
 by the gradual conversion of oflScial functions into property 
 rights ('franchises'), partly by the change in the conditions of 
 agriculture which was slowly transmuting communal usages 
 into individual privileges, partly by economic restrictions, such 
 as the Usury Laws, which compelled people to resort to indirect 
 methods, like rent-charges, to disguise the fact that they were 
 lending money at interest. 
 
 It might appear natural to a modern lawyer to treat such 
 rights as choseg^gMion, i.e. as personal claims by one individual 
 
 152 Hon. Ill (1267) r. 2.3 (2). 
 - 8 Vane V. Lord Barnard (1716) 2 Vcrn. 738.
 
 NEW INTERESTS IN LAND 93 
 
 against another. But^o^the men of the twelfth and thirteenth 
 Not Choses centuries, such a course would have seemed fraught 
 in Action ^,j^}^ danger. Whilst the personal remedies of that day, 
 at any rate in the King's courts, were few and imperfect, the 
 remedies based on ' real ' or proprietary claims were rapidly 
 becoming scientific and effectual ; and the royal judges did not 
 shrink from the task of including incorporeal hereditaments in 
 their scope. Already in Glanville's day, the Writ of Right, 
 the great proprietary action, had been adapted to the case of 
 servitudes by the modification known as the Writ of Quod Per- 
 mittat. ^ The owner of woods and pastures is ordered to permit 
 the plaintiff to have the easements therein which he claims 
 that he ought to have ; and the King's officer, the sheriff, would 
 even be ordered to take upon himself the task of measuring the 
 meadows of a township, to see whether any of the commoners 
 ■yvere putting in an undue number of beasts, and thus 'overloading 
 the pasture.'^ But, apparently, in all these cases, the strict 
 question of title had to be tried before any redress could be 
 actually given ; and, as we have seen, ^ such a trial might involve 
 long delay. 
 
 It will not, however, have escaped the reader's memory, 
 
 that the more speedy remedy of the 'petty' or 'possessory' 
 
 assises had been applied, so far back as the reign of 
 
 aUVOWSOIIS J. X -' •- 
 
 Henry II, to one very important kind of interest which 
 we now class as an 'incorporeal hereditament.' This was the 
 advowson, or right of presentation to an ecclesiastical benefice, 
 with regard to which a speedy remedy was given by the Assise 
 d'arrevnj^esentment^ It is true that an advowson was, by the 
 lawyers of the medieval period, regarded almost as much as a 
 'corporeal' as an 'incorporeal' hereditament. It could be 
 made the subject of tenure;^ though it could not be transferred 
 by corporeal investiture or livery of seisin/ Still, it obviously 
 differed from the ordinary estate of which the owner was 'seised 
 in demesne as of his fee ' (or ' freehold ') ; and the existence of the 
 Assise d'arrein presentment must have rendered a speedy remedy 
 for disturbance of incorporeal interests desirable. Unfortunately, 
 
 I Glanville, lib. XII, cap. 15. » Ibid., cap. 14. ' Ante, pp. 49-50. 
 
 * Glanville, lib. XIII, capp. 18, 19. It was also protected by the powerful 
 remedy of the Quare impedit. 
 
 * Co. Litt. 85a ; Hartopp's and Cock's Case (1627) Hutt. 88. 
 *Co. Litt. 332a, 335b.
 
 94 A SHORT HISTORY OF ENGLISH LAW 
 
 both the Writs of Entry and the Writ of Trespass were obviously 
 inappHcable to interests which did not confer seisin or possession ; 
 and, though the highly popular Assise of Novel Disseisin had 
 been applied, as early as Glanville's time, ^ to protect pasturage 
 rights, the difficulty of extending it to other incorporeal here- 
 ditaments seemed to be insuperable. In the year 1285, however, 
 the Statute of Westminster the Second, by a chapter which 
 incidental!}^ reveals the existence of many of our most familiar 
 modern 'easements and profits,'^ extends the remedy to 'estovers* 
 and other profits of woods, toll, tronage, passage, pontage, 
 offices, and commons of all kinds. The position of rents charge 
 was altogether anomalous. Though they could not, unlike 
 rents service, be distrained for (unless an express power of distress 
 had been granted), they could virtually be treated as land for 
 purposes of litigation. If the person seised of the land (terre- 
 tenant) refused to pay the rent,, he could be regarded as disseising 
 the rent-charger of the land itself; if a stranger procured pay- 
 ment of the rent instead of the lawful claimant, he could be 
 similarly treated.^ So closely was the rent, even the rent charge, 
 identified with the land, that, in later days, when the Assise of 
 Novel Disseisin had dropped out of use, it could be gravely 
 argued that there was no personal remedy for the recovery of a 
 rent charge.^ 
 
 For the various 'easements and profits' not protected by the 
 Assise of Novel Disseisin, a speedy remedy was soon found in 
 the Action of Case, the development of which must, in its 
 proper place, be traced wdth some care.^ Here it is sufficient to 
 say, that the method of the Action of Case was to take some 
 ancient remedy, the value of which was impaired by technical 
 restrictions, and cut away those restrictions, by making the 
 remedy universally applicable under the guise of analogy, or 
 'like case.' In the matter of incorporeal hereditaments, the 
 ancient Assise of Nuisance, given by Glanville,^ at first only 
 available for freeholders, was, by means of the Action of Case, 
 rendered generally available to recover damages for actual 
 interference with the enjoyment of such rights. And, so popu- 
 lar did the Action of Case become, that the older remedy of the 
 
 > Lib. XIII, cap. 37. 2 13 Edw. I (1285) c. 25. ^ Litt. ss. 233-40. 
 
 * Thomas v. Sylvester (1873) L. R. 8 Q. B. 368. 
 
 » Pout, pp. 136-144. « Lib. XIII, capp. 35-38.
 
 NEW INTERESTS IN LAND 95 
 
 Assise, even where it was available, soon tended to disappear. 
 Nevertheless, it is possible that, in the original distinction of 
 remedies, we have the key to the apparently anomalous dif- 
 ference between those rights, the mere technical disturbance 
 of which is a ' cause of action, ' and those other rights which are 
 only infringed when actual damage occurs.^ 
 
 Finally, in the period now under review, we note the appearance 
 of an entirely novel and modern conception of interests in 
 Uses of land, the introduction of which threatened to shake 
 
 ^^^^ to its foundations the whole fabric of feudal land law. 
 
 That this fabric succeeded ultimately, in spite of almost over- 
 whelming difficulties, in incorporating into itself the new and 
 revolutionary features of the 'use,' without depriving those 
 features of their essential value, is a striking tribute both to 
 the tenacity and to the adaptability of the medieval system of 
 tenure. 
 
 The use of lands was, originally, a device for enjoying the 
 benefits of landownership without incurring any of its legal 
 responsibilities. As we have seen, one of the fundamental 
 principles of tenure is, that the position (the status or 'estate') 
 of the tenant is burdened with various services and 'incidents 
 of tenure.'^ Regarded as a means of achieving certain politi- 
 cal objects, these liabilities were essential. Regarded as a 
 condition of the enjoyment of the profits of the land, they 
 were mere encumbrances, to be got rid of if possible. More- 
 over, they were liabilities which, in many cases, could not 
 actually be performed by certain classes of persons. Thus, 
 an infant, a woman, or a religious house, could not in person 
 perform military service ; though, doubtless, in such cases, a 
 substitute could be sent. On the other hand, a certain class 
 of person was only too liable to commit treason or felony, and 
 thus incur a forfeiture of his estate, or to run into debt, and 
 have his land seized by his creditors under the new remedy of 
 Elegit provided by the Statute of Westminster the Second.^ 
 Finally, the desire to extend to land that power of testamen- 
 tary disposition which, as we have seen,^ had been acquired for 
 
 ' The reader familiar with modern English law will not need to be reminded oi 
 the famous decision in Colls v. Home and Colonial Stores [1904] A.C. 179. It turned 
 entirely on the distinction referred to in the text. 
 
 *Ante, chap. III. ^ 13 Edw. I (1285) c. 18. * Ante, p. 61.
 
 9Q A SHORT HISTORY OF ENGLISH LAW 
 
 chattels in the twelfth and thirteenth centuries, grew stronger 
 
 with each generation. 
 
 The method of the 'use,' as distinguished from its objects, 
 
 was, to vest the seisin of the land in some person who would, 
 
 ^ ^ J for all public and legal purposes, be the tenant of the 
 Feoffee and , , ,^ ,.,,•, , • , 
 
 Cestui que land, but to DHid him by a solemn promise or oath, 
 
 to permit another person to enjoy the benefit (Use) 
 of the land, after satisfaction of the claims of the State and 
 the lord. So far as these authorities were concerned, the only 
 person was he who was vested with the seisin, the 'feoffee to 
 uses,' as he came to be called. Upon his death, felony, infancy, 
 marriage, and the like, the usual incidents of tenure arose ; 
 against him were made the claims for all services, though, it is 
 hardly necessary to say, the right of distress gave the lord a still 
 more powerful remedy against the land itself. As for the 
 beneficiary, the cestui que use, he was out of the picture ; so far 
 as the State and the lord were concerned. 
 
 The popularity of the famous device of the use of lands into 
 England is said to be largely due to the mendicant friars of 
 Origin of the then new Orders of St. Dominic and St. Francis, 
 Uses who, arriving in this country in the first half of 
 
 the thirteenth century, found themselves hampered by their 
 own vows of poverty, no less than by the growing feeling against 
 'Mortmain,'^ in acquiring the provision of land absolutely 
 necessary for their rapidly developing work. Churches, schools, 
 and hospitals were their material stock-in-trade; and these 
 required sites, even if the brethren themselves were prepared 
 to lodge in poverty and obscurity. But the device soon found 
 imitators with inferior motives. A statute of 1376- is aimed 
 at persons who, having inherited tenements and borrowed 
 chattels, give such tenements and chattels to their friends, 
 ' by collusion to have the profits thereof at their will,' and then, 
 fleeing to sanctuary, waste these profits * with an high counte- 
 nance,' in defiance of their long-suffering creditors. Other 
 statutes allude to the practice of covering defective titles by 
 transferring them to powerful men against whom the lawful 
 claimants can make no way,^ to the evasion of the Mortmain 
 rule and the rule against alien incumbents, by the same de- 
 
 • Ante. p. 31. « 50 & 51 Edw. Ill, c. 6. 
 
 ' 1 Ric. II (1377) c. 9.
 
 NEW INTERESTS IN LAND 97 
 
 vice/ and to the practice of alienating lands on a similar under- 
 standing, in order to be able to commit waste with impunity.^ 
 
 But here it will not unnaturally be asked, with what assur- 
 ance could the adopters of this device expect, from those to 
 Protection whom they had confided such enormous power, 
 of the Use ^j^y better faith than they themselves had shown ? 
 What was there to prevent a feoffee to uses denying the claim 
 of his cestui que use to the profits of the land? According to 
 law, he (the feoffee to uses) was the tenant, the owner of the 
 estate. What was to prevent him taking the profits for his 
 own use, instead of leaving them for the use of another ? 
 
 Probably, in the earlj^ days of the use of lands, nothing at all ; 
 save the popularity of the friars, and the general scandal which 
 The Court a breach of ecclesiastical confidence would have 
 of Chancery occasioned. The Church courts, which would, doubt- 
 less, have been only too eager to interfere for the protection 
 of the cestui que use, had been excluded in advance from en- 
 forcing promises, even when a breach of them amounted to a 
 laesio fidei; they were still more strictly prohibited by the 
 royal judges from holding plea of lands. But, in the latter 
 half of the fourteenth century, a powerful champion of the 
 cestui que use arose in the Court of Chancery ; and, from the 
 end of the fifteenth century^ (probably long before) we find the 
 Court issuing its powerful Writ of subpcena against the man 
 who, having received land to hold for the use of another, refuses 
 to allow that other to enjoy it. After this, it is merely a ques- 
 tion of time when the 'equitable ownership' of land shall 
 assume the character of a definite and recognized system along- 
 side of the older system of legal estates. The details of the 
 story are too long to be told here. Suffice it to say that, by 
 gradually assimilating the interest of the cestui que use to that 
 of the legal tenant, by imposing, not merely on the original 
 feoffee to uses, but on all persons who acquired his estate in 
 circumstances which rendered them morally bound to respect 
 the claims of the cestui que use, the liability to do so, ^ above all, 
 
 • 7 Ric. II (1383) c. 12 ; 15 Ric. II (1391) c. 5. (The latter statute put an end 
 to this particular evasion of the Mortmain rule.) 
 
 "^ 11 Hen. VI (1433) c. 5. 
 
 'See the precedents in Select Cases in Chancery, ed. Baildon (S.S. vol. 10). 
 
 ^ See this process worked out in detail in Maitland's Equity, pp. 117-121 ; also 
 in the author's Modern Land Law, at pp. 141, 142, where the decisions are referred 
 to. They range from 14S5 to 1589.
 
 98 A SHORT HISTORY OF ENGLISH LAW 
 
 by raising implied or constructive uses from circumstances 
 which, in the opinion of the Court, rendered the legal owner 
 bound in conscience to act as a trustee for the cestui que use, 
 the Court of Chancery, powerfully aided by Parliament,^ had, 
 even before the passing of the statute of 1535, in effect created 
 a dual system of land-ownership in England. Unlike the older 
 system or estates, which was based on the conspicuous fact of 
 seisin of possession of the land, the new system was based on 
 conscience, i.e. on the moral duty of the person seised (the 
 feoffee to uses) to allow the beneficial owner, or cestui que use, 
 to enjoy the profits of the land. This moral duty was not rec- 
 ognized by the older royal tribunals, the Benches and the Ex- 
 chequer,- which, indeed, with their jury-process, were ill-fitted 
 for the decision of moral questions.^ But the ne ^w Co urt of 
 Chancery, with its ecclesiastical Chancellor, well versed in the 
 mysteries of theological casuistry, and unhampered by the 
 presence of a secular jury, set itself with eagerness to defend 
 the cestui que use against the tenant of the legal estate. Only 
 where such tenant had acquired his estate as a bond fide pur- 
 chaser, without knowledge of the trust affecting it, was the 
 Chancery powerless to protect the equitable ownership; for 
 in that case there was no ' equity ' that could be set up against 
 the legal tenant. In all other cases, the equitable interest 
 dogged the heels of the legal tenant like an inevitable shadow ; 
 a shadow which, from the standpoint of pecuniary value, was 
 worth more than the substance of the legal estate. Even 
 Littleton, though he represents the strictest orthodoxy of the 
 older feudal law, was obviously familiar with the use of lands; 
 for he admits^ that the cestui que use is put on assises and inquests 
 under the Jury Act of 1414,^ and his will shows that he had lands 
 of his own in ' use. ' 
 
 But the peaceful development of the use of lands was threat- 
 
 ' Soe 11 Hen. VI (1433) c. 5 {cestui que use liable for waste) ; 4 Hon. VII (1488) 
 c. 17 (heir of c.q.u. to be in ward and pay relief, and to have action against guardian) ; 
 19 Hen. VII (1503) c. 15 (use of land liable to be taken in execution on judgment, 
 &c. ; heriots, reliefs, &c. to apply). 
 
 « It is, of course, well known that, in later times, the Court of Exchequer exercised 
 equitable jurisdiction. But it was evidently borrowed from Chancery. 
 
 3 Fitzherbert {Natura Brevium, 117 A) does indeed state that the cestui que use 
 may have a Writ of Account against the feofTce. But he gives no form ; and the 
 statement is of doubtful authority. Anyhow, the Writ of Account was never a great 
 success. 
 
 * Ss. 462-464. ^ 2 Hen. V, st. II, c. 3.
 
 NEW INTERESTS IN LAND 99 
 
 ened with violent interruption in the first half of the sixteenth 
 The statute centurv. The King's advisers had in immediate view 
 of Uses ^j^g dissolution of the monasteries, and the confiscation 
 
 of their lands. It was known that a vast quantity of these lands 
 were held for the monasteries under the convenient protection 
 of uses, presumabl}^ created before the mortmain statute of 
 1391.^ The royal advisers were determined that these lands 
 should not escape forfeiture under the disguise of mere equitable 
 interests ; such a result would merely have benefited the feoffees 
 to uses, whereas the King's advisers destined the lands for quite 
 other persons. Accordingly, the famous Statute of Uses, passed 
 at the close of the year 1535,^ in effect enacts (for the language is 
 unspeakably involved and obscure) that, whenever A is or shall 
 hereafter be 'seised' to the use of B, of any interest in land, B 
 shall be deemed to have a corresponding legal estate; A dis- 
 appearing altogether from the scene. ^ One of the popular titles 
 given to the statute, viz. ' An Act for the Transmutation of Uses 
 into Possession,' perhaps hits, as clearly as any brief formula, 
 the intention of the measure; for, though it was afterwards 
 held,^ that mere trespassory possession was a question of fact 
 which could not be disguised, even by the words of a statute, 
 yet all that the recognition of the legal seisin could do for the 
 cestui que use would be done. 
 
 The fate of the Statute of Uses is one of the most curious 
 in legal history. Its' secret and unavowed purpose, of securing 
 Effects of the estates of the monasteries for the Crown, it 
 the statute accomplished. Its ostensible purpose, fortified by 
 a wealth of hypocritical justification,^ it entirely failed to achieve. 
 Not only were devises of lands, after a brief interval, put on 
 a legal footing ; ^ but, as is well known, uses of lands, as dis- 
 tinguished from legal estates, soon re-appeared in full vigour. 
 Whilst, in unforeseen directions, the statute worked havoc in 
 the medieval system of conveyancing; and gradually modern- 
 ized it out of existence. At this point we are concerned to 
 notice only the failure of its avowed object. This failure took 
 
 1 15 Ric. II, c. 5. 
 
 2 27 Hen. VIII, c. 10. 
 
 ' This seems to be a fair summary of the long first section. 
 
 * Lutwich V. Milton (1620) Cro. Ja.c. 604 ('not to have trespass without entry and 
 actual possession'). 
 
 ^ See the long list of supposed grievances quoted in the preamble. 
 « 32 Hen. VIII (1540) c. 1.
 
 100 A SHORT HISTORY OF ENGLISH LAW 
 
 the form of a discovery that three important classes of uses of 
 land did not fall within the operation of the statute. 
 
 In all probability, the framers of the Act had never contem- 
 plated the inclusion within it of 'active trusts' — i.e. arrange- 
 ments under which the feoffee to uses did not merely lend his 
 Uses not name as a cover for the cestui que use, but genuinely 
 
 wiihin the conducted himself as manager and administrator of the 
 statute , T 1 n 1 
 
 estate, handmg over the net pronts to the cestui que use. 
 
 At any rate, such active trusts were soon treated as being outside 
 
 the statute ; ^ although, owing to the important fact that no 
 
 technical words were ever essential to the creation of a use, it 
 
 was sometimes difficult to discover whether an 'active' or a 
 
 ^passive' use or trust was intended. 
 
 Another loophole was discovered in the employment of the 
 word 'seised' by the framers of the statute. For, as we have 
 seen, ^ the word ' seised, ' and its analogues, had long been reserved 
 for the free tenement ; the owner of a term of j^ears was not 
 seised. Consequently, an assignment of a term of years to A 
 to the use of B was not ' executed ' by the statute, so as to make 
 B legal owner ; though a feoffment to A and his heirs to the use 
 of B for the same number of years, would have that effect.^ 
 
 Finally, by what can only be regarded as sheer quibbling, 
 it was resolved, in a famous decision of the Court of Wards, ^ 
 that if the donor of lands has placed an use upon an use {e.g. has 
 enfeoffed A, to the use of B, to the use of, or in trust for, C), 
 the second use is not ' executed ' by the statute ; for that ' an 
 use cannot be engendered of an use.' It was not long before 
 the ingenuity of conveyancers saw in this decision a simple means 
 of evading the statute in any case ; and so we get the common 
 formula of a conveyance 'into and to the use of A,' in trust 
 for B, which, as was said in a w^ell-known case,^ merely added 
 three (? five) words to the conveyance, and, at the same time, 
 entirely excluded the operation of the statute. 
 
 Thus, after a temporary check, the development of the doc- 
 trine of uses resumed its full course. The Court of Chancery, 
 aided from time to time by Parliament, imposed upon the 
 interest of the cestui que use the incidents of the legal estate, 
 
 1 Xevil V. Saunders (1686) 1 Vcrn. 415. ^ ^^^g^ pp_ 52, 53, 89. 
 
 3 This is expressly enacted by the statute (s. 1). 
 
 * Tyrrel's Case (1557) Dyer, 155. 
 
 * Hopkins V. Hopkins (1738) 1 Atk., at p. 591.
 
 NEW INTERESTS IN LAND 101 
 
 and vested him with its powers; while, on the other hand, it 
 
 relieved the estate of the trustee from the legal liabilities 
 
 . which, owing to the default or incapacity of the trus- 
 
 History of tee, threatened to endanger the beneficial interest, 
 
 Trusts ' r> } 
 
 though not, of course, from the ordinary incidents of 
 
 tenure. Thus, by a series of steps, the course of which will 
 be traced in the history of the next period, the 'use, trust, or 
 confidence of lands,' which the good friars of the thirteenth cen- 
 tury adopted to enable themselves to reconcile the enjoyment of 
 property with their vows of perpetual poverty, has developed 
 into a new form of ownership which, to all but trained eyes, 
 completely resembles the older feudal form of tenure.
 
 CHAPTER VIII 
 
 RIGHTS AND METHODS OF ALIENATION 
 
 IT has been shewn, in a previous chapter/ how that right 
 of ahenating property in land which, to a modern student, 
 seems an inevitable feature of every civilized system 
 of law, but which primitive society long declines to recognize, 
 had won substantial victories during the preceding period. 
 Just at the close of the thirteenth century, was passed a famous 
 statute which is the charter of free alienation in England. This, 
 the so-called Quia Emptores, from its opening words, appears 
 Quia as the Statute of Westminster the Third ; - and from 
 
 Emptores j^^ wording We may gather that it was something 
 in the nature of a diplomatic move in the struggle between the 
 conservative forces which opposed free alienation and the 
 progressive forces which favoured it. Apparently, the great 
 feudal landowners had complained that their tenants had 
 ' subinfeudated ' their lands in such a way that the benefits 
 of the overlordship were lost, and had prayed relief. The King, 
 assuming sympathy, had, with the advice of his Parliament, 
 and 'at the instance of the great men, of the realm,' enacted 
 that such subinfeudation should no longer be lawful ; but, at 
 the same time, that 'it shall be lawful to every free man to 
 sell at his own pleasure his lands and tenements, or part thereof ; 
 so nevertheless that the feoffee shall hold the same lands or 
 tenements of the same chief lord of the fee, and by the same 
 services and customs as his feoffor held them before.' Thus 
 the famous rule, which has ever since governed English convey- 
 ancing, was laid down : a fee simple may be transferred, it 
 cannot be created, by a subject. The statute is expressly 
 limited^ to estates in fee simple. It was not intended to affect 
 the entails just made inalienable by De Donis;* nor to prevent 
 
 ' Ante, pp. 36-38. ' Cap. 3. 
 
 * 18 Edw I (1290) at. I. « Ante, pp. 86-88.
 
 METHODS OF ALIENATION 103 
 
 the creation of such Hmited fees or of hfe estates. Moreover, 
 according to a well-known rule of Constitutional Law, it does 
 not bind the Crown, which can accordingly, and does, create 
 fee^sTrnple estates at the present day. But, so far as the right 
 of alienation by tenants in capite of the Crown was concerned, 
 that was tacitly granted by a statute of the year 1327,^ which 
 substituted a reasonable fine for the previous forfeiture incurred 
 by such alienation.- 
 
 Thus, by the end of the thirteenth century, slightly later 
 for immediate tenants of the Crown, the right of alienation 
 of land had been established as a general principle, at least 
 for free tenants. How far the claims of servile tenants to 
 similar privileges had progressed at that date, it is difficult 
 to say. \^Tien copyholds come within the juris- 
 diction of the King's courts, we find the practice 
 of alienation by surrender of the tenant's interest to "Mb lord 
 and the admittance of his alienee in his place, so firmly estab- 
 lished, that the King's courts treat it as part of the general 
 law of copyholds.^ The form of the process suggests a com- 
 promise between seignorial and tenant rights. Nq_ doubt 
 appea rs to haxa-fcven Leen raised as to the alienability of terms 
 of years, in spite of the fact that contractual rights were, in 
 general, long inalienable. But there were certain rules about 
 the enforcement of conditions of forfeiture which, until the 
 passing of the statute of 1540,^ must have rendered the aliena- 
 tion of reversions somewhat difficult ; and, though vested 
 remainders probably fell within the provisions of Quia Empiores, 
 it was long before the possibility of alienating contingent estates, 
 by ordinary conveyance inter vivos, was openly admitted.^ 
 As has been before stated,^ the statutory prohibition against 
 alienating entailed estates, was evaded by the use of fictions, 
 probably before the end of the fourteenth century. 
 
 1 lEdw. Ill.st. II, c. 12. 
 
 * It would seem, from the wording of the Prcerogativd Regis (17 Edw. II, st. II, 
 c. 7) that, even before 1327, the tenant in capite was allowed to alienate a portion 
 of his fee ; in other words, the matter was governed by cap. 32 of the charter of 
 1225 (9 Hen. III). 
 
 ' Coke, Compleate Copyholder, s. xx.xvi. 
 ——^1^2 Hen. VIII, c. 34. 
 
 ^ Statutory recognition was not accorded until 1845 (8 & 9 Vic. c. 106, s. 6). 
 As a matter of fact, the rule had long been relaxed for wills ; and this fact was 
 formally recognized by the Wills Act of 1837 (7 Will. IV & 1 Vic. c. 26, s. 3). 
 
 « Ante, pp. 37, 38.
 
 104 A SHORT HISTORY OF ENGLISH LAW 
 
 The next great step in the progress of free alienation was 
 the result of the introduction of uses of land, described in the 
 Wills of l^st preceding chapter. Though the older King's 
 
 Uses courts, the Benches and the Exchequer, adhered 
 
 sternly to the rule, that the legal estate in lands was not devisable, 
 the Court of Chancery freely recognized the right of ihe.CiLsiui 
 que use to dispose of his equitable interest by will — provided, of 
 course, that such interest was capable of continuing after his 
 death. Accordingly, it was every-day practice in the fifteenth 
 and early sixteenth centuries, for a landowner, who felt his end 
 approaching, to enfeoff a trustworthy person or persons ' to the 
 uses of his will ' ; and those uses would, after his death, be 
 enforced against his feoffees by the Court of Chancery.^ It was, 
 probably, in this way that * future uses,' i.e. uses not to take 
 effect, or possibly not even to be declared, until the happening of 
 some future and uncertain event, acquired their first recognition. 
 By this means, undoubtedly, our law gained acquaintance with 
 those * executory devises ' which still, on some points, defy the 
 rules of ordinary conveyancing. For, inasmuch as the will of 
 uses could by no means affect the seisin of the land, which still 
 remained peacefully vested in the feoffee to uses, the Court of 
 Chancery saw no harm in allowing free disposition of the use 
 itself. It is worthy of notice, too, that the practice of surrender- 
 ing to the uses of the tenant's will, obviously framed on the 
 analogy of the Chancery model, had acquired a footing in copy- 
 holds by the beginning of the seventeenth century. 
 
 The Statute of Uses avowedly aimed at putting an end to 
 devises of land, by converting uses into legal estates.^ But 
 p. such a result was so repugnant to a generation which 
 
 Statute of had become familiar with testamentarv dispositions of 
 
 Wills . "^ . . . 
 
 land through the medium of uses, that public opinion 
 compelled the passing, in the year 1_54P,^ of ^-^tatutewhicli openly 
 sanctioned the devise of legal interests ; excepting only, for the 
 benefit of reversioners, one third of knight-service estates. 
 So wide, indeed, was the wording of the statute of 1540, that it 
 was found necessary to correct it, two years later, by an explana- 
 
 ' A statutory recognition of this practice may be found in 1488 ( 4 Hen. VII, c. 4). 
 '27 Hen. VIII (1535) c. 10 ('Where(as) by the common laws of this realm, 
 lands, tenements, and hereditaments be not devisable by testament '). 
 » 32 Hen. VIII, c. 1.
 
 METHODS OF ALIENATION 105 
 
 tory statute,^ which re strict ed the operation of devises t o fee 
 simple^estates. The restriction was, probably, intended to 
 exclude only estates tail ; but it had the effect of shutting out 
 estates pur autre vie, which remained, accordingly, undevisable 
 until the passing of the Statute of Frauds,^ in the next period. 
 On the other hand, the explanatory statute of 1542 ^ withdrew 
 at least some of the restrictions which had been placed by the 
 principal statute on devises of estates held in capife of the 
 Crown,"* and expressl}^ allowed undivided shares of devisable 
 estates to be devised.^ This last provision completed the policy 
 of allowing all co-owners to demand a 'partition,' or breaking 
 up into severalty of their lands, which had been begun by the 
 Partition Act of 1539,^ and must be regarded as the 
 climax of the movement in favour of free alienation 
 brought about by the Reformation statutes. 
 
 On the other_liand7- Parliament, in this period, clung firmly 
 to the rule against alienation in mortmain, which, as we have 
 . seen,^ had begun to establish itself in the preceding 
 period, and even extended its scope. A statute 
 of the year 1279,^ devoted entirely to the subject, laid it down 
 that the immediate lord should, in the event of a breach of the 
 rule, be entitled to enter the land and claim it as forfeited at 
 any time within a year after the breach ; if he failed to do so 
 his right passed for six months to his next overlord, and so, ulti- 
 mately, to the Crown, The Statute of Westminster the Second 
 introduced two new writs specially concerned with enforcing 
 the rule.^ Quia Emptores is careful to explain ^° that the recogni- 
 tion of the free right of alienation does not extend to gifts in 
 mortmain. The Crown was not bound by the statute of 1279. 
 But the King promised, in the year 1299,^^ that no license to 
 acquire lands in mortmain should be granted until an enquiry 
 had been held as to its effect upon the interests of 'mesne' 
 or intervening lords ; and this promise was renewed in 1306.^^ 
 
 » 34 & 35 Hen. VIII (1542) c. 5. ' 29 Car. II (1677) c. 3, s. 12. 
 
 = 34 & 35 Hen. VIII (1542) c. 5. " Ibid., ss. 5-8. * Ibid., s. 4. 
 
 ^ 31 Hen. VIII, c. 1. (Co-heirs were entitled to partition by the older law.) 
 ''Ante, p. 31. * Printed as 7 Edw. I, st. II. 
 
 ' 13 Edw. I, c. 41. (The writs are: Contra Formam CoUationis and Cessavit in 
 Biennium.) 
 
 »» 18 Edw. I (1290) c. 3. 
 
 " 27 Edw. I, St. II. (This is the writ of Ad Quod Damnum.) 
 
 " 34 Edw. I, St. III.
 
 106 A SHORT HISTORY OF ENGLISH LAW 
 
 A statute of 1344^ shows some weakness ; but the statute of 
 1391 - is memorable, not merely as being the Mortmain Code of 
 tTiree centuries, but as extending the rule of mortmain Xo all 
 bodies, religious and secular alike, having perpetual succession. 
 For this extension marks the definite recognition by English 
 Law of the corporation, or, as it is sometimes called, the ' fictitious 
 person ' — ■ the legal personality which is not restricted to the 
 limits of individual life. The gradual evolution of this institution 
 is one of the most fascinating chapters in legal history ; but 
 space forbids any attempt to describe it here.^ The Reformation 
 statutes still further strengthened the policy of mortmain by 
 declaring void (though not a cause of forfeiture) all gifts of lands 
 to parish churches, chapels, or religious gilds,^ and by defining 
 the scope of lawful charitable gifts.^ 
 
 Passing now from the right of alienation to the forays by 
 which that right was exercised, we find it everywhere assumed, 
 in the earlier years of this period, that an alienation of land, 
 w^hether by way of 'subinfeudation' or 'substitution,' will be 
 Feoffments effected by a 'feoffment w^tli livery of seisin,' i.e. 
 by a physical transfer of possession. Analytically, 
 this process is two-fold. The present possessor vacates posses- 
 sion, indicating to the intending acquirer that he (the purchaser) 
 may now take peaceful possession of the land so left vacant. 
 Thereupon, the purchaser enters and takes possession of the 
 land. Usually, however, the process is effected by a single 
 ceremony which disguises the dual character of the transaction 
 ('livery in deed'). It is possible, however, that a considerable 
 interval may elapse between the retirement of the transferor 
 and the entry of the transferee. In that case, until the latter 
 event has taken place, the delivery of possession is imperfect 
 ('livery in law^'). In any case, it is essential to the transaction 
 that the possession shall be vacant when the transferee enters; 
 otherwise his act is a disseisin, it may be a forcible disseisin, 
 which will subject him to criminal punishment.^ That is why 
 entry must take place in the lifetime of the feoffor;^ before 
 
 ' 18 Edw. Ill, St. Ill, c. 3. 2 15 Hie. II, c. 5. 
 
 ' The reader should refer to the account given in P. & M. (Vol. II, pp. 486-511.) 
 * 23 Hen. VIII (1531) c. 10. There was an exception for interests not exceeding 
 twenty years (s. 3). 
 
 ' 43 Eliz. (1601) c. 4, 8. 1. 
 
 « Statutes of Forcible Entry (5 Ric. II (1381) st. I, c. 8; 8 Hen. VT (1429) c. 9). 
 
 ' Co. Litt. 48 b.
 
 METHODS OF ALIENATION 107 
 
 the latter's seisin descends to his heir in pursuance of the rule : 
 le mort saisit le vif. During the whole of the period under 
 review, no written evidence of the feoffment was required ; 
 though, for convenience of record, 'charters of feoffment' 
 became common before the end of the fifteenth century. But 
 the form of such documents tells its own tale. It is recitative 
 only, not operative — 'I have given and granted,' not, 'I give 
 and grant.' 
 
 Around this primitive type of conveyance an almost supersti- 
 tious atmosphere of reverence had accumulated before the close 
 of our period ; and, in addition to what a modern lawyer would 
 esteem the proper and normal effect of a conveyance, viz., the 
 transfer of undisputed rights, the feoffment was marked by at 
 least three qualities which, to a modern lawyer, seem grotesque. 
 
 The first of these is what may be called (though the expression 
 Beneficial is not orthodox) its ' beneficial operation. ' Provided 
 pera ion only that the entry of the feoffor to make livery be 
 lawful, the feoffment 'cleareth all disseisins, abatements, in- 
 trusions, and other wrongfull or defeasible estates ' ; ^ in other 
 words, it starts the feoffee again with a clear title, unhampered 
 by any previous defects caused by unlawful claims. That was 
 one reason why the ^right of entry ' was so jealously guarded ; 
 and why, therefore, a ' discontinuance ' by a tenant in tail, 
 which, though it did not deprive the heir in tail of his estate, 
 robbed the latter of his ' right of entry,' and so rendered it im- 
 possible for him to alienate until he had recovered the land by 
 action, was so serious a step.^ The doctrine of beneficial opera- 
 tion was justified by the subordinate and very difficult principle 
 of 'remitter,' i.e. the rule whereby a man who has two titles, 
 one older and better, the other younger and more disputable, 
 if he comes to the land by the latter, will be deemed by the law 
 to be 'in' by force of the former.^ In the days of disturbed 
 titles, it was of great importance, and is so treated, both by 
 Littleton and Coke.'* 
 
 The second peculiar quality of a feoffment is officially described ^ 
 as its 'tortious operation.' For, a livery in deed being an 
 
 ' Co. Litt. 9a. An 'abatement' is the entry of a stranger between the death of 
 an ancestor and the entry of the heir ; an ' intrusion ' a similar entry between the 
 death of a tenant for life and the entry of the remainderman (Co. Litt. 277a). 
 
 2 See ante, p. 87. s Ljtt. s. 659. * Co. Litt. 347 b-364 b. 
 
 ' E.g. in the Real Property Act, 1845, s. 4.
 
 108 A SHORT HISTORY OF ENGLISH LAW 
 
 undeniable fact, it at least transferred seisin to the feoffee — 
 Tortious not necessarih^ a rightful seisin, but, if tlie feoffor 
 Operabon professed to transfer njore than he himself had, a 
 wrongful ^ r 'torti ^s' seisin. An3^, iiiasinuch as there could 
 only be one seisin of the land, it followed that this tortious feoff- 
 ment might work disastrous results to lawful interests. Thus, 
 for example, if made a lessee for years, it deprived the lessor of 
 the seisin which, as we have seen,^ remained in him, notwith- 
 standing the grant of the term. If made by a tenant for life, 
 it 'devested' the remainders or reversion on his estate. In 
 both cases, the estates of the remainderman or reversioner were 
 reduced to mere rights of entry, which, if exercised at all, must 
 have been exercised promptly, or the 'disseisor' would have 
 acquired a seisin protected by the possessory assises, and the 
 claims of the injured party would then have been reduced to 
 mere rights of action, which were liable to perish by lapse of 
 time, and which could not be alienated.^ If the wrongful 
 possessor succeeded in holding possession until the death of 
 the rightful claimant of the seisin (the 'disseisee'), the latter's 
 heir was likewise restricted to a mere right of action ; the ' descent 
 cast tolled the entry.' ^ Naturally, such a grievous wrong was 
 not committed with impunity ; a tortious feoffment by a feoffor 
 who had no fee worked a forfeiture of his estate, and entitled 
 the next vested remainderman or reversioner to enter and claim 
 the land at once.^ But this very righteous rule itself ultimately 
 became an engine of fraud ; for, by means of it, tenant for life 
 in possession could, by collusion with the next vested remainder- 
 man, cause a forfeiture of his (the tenant for life's) estate, and 
 thus destroy the intervening contingent remainders. It was this 
 device which led to the institution of 'trustees to preserve con- 
 tingent remainders ' — necessary parties to every family settle- 
 ment, until the Real Property Act, 1845, abolished altogether 
 the tortious operation of a feoffment.^ 
 
 Thirdly, a feoffment might involve a warranty by the^feoffor 
 
 « Ante, p. 89. 
 
 * If the disseisor could hold possession for three years, even though his entry had 
 been forcible, he could not be turned out by the summary remedy given by the 
 8 Hen. VI (1429) c. 9 (see s. 7). Of this more in a later chapter. 
 
 ' Litt. s. .386. The Note of Hargraves and Butler appended to this section in 
 their edition of Coke's Commentary on Littleton gives an excellent summary of the 
 eflTects of disseisin. 
 
 «Co. Litt. p. 251. * 8 & 9 Vic. c. 106, s. 4.
 
 METHODS OF ALIENATION 109 
 
 of the feoffee's title — i.e. a liability, in the event of the feoffee 
 losing the lands by a claim mconsistent with the 
 
 Warranty ^ - - * 
 
 title of the feoffor, to make up to him the loss out of 
 his (the feoffor's) other lands. This liability is, historically, 
 of such importance, that a few words must be devoted to it. 
 
 The feudal warranty is, doubtless, derived from the ancient 
 duty of the feudal lord to protect his liege man ' with fire and 
 sword against all deadly.' It was of the essence of the feudal 
 bond, that the vassal should be under his lord's protection. 
 But, with the gradual transmutation of the feudal tie into a mere 
 symbol of property, we notice a desire on the part of the State 
 to restrict the operation and frequency of a liability so dangerous 
 to social order. For, even when the ancient military protection 
 had degenerated into the mere liability to replace the lost estate, 
 the fact that a vassal was known to be ' warranted ' by a powerful 
 lord, might well prejudice the just claims of humble claimants of 
 his land. 
 
 Accordingly, we are not surprised to find, that one of the 
 earliest statutes of the period under review proceeds to discuss 
 the question of the liability of feoffors to warranty. In the so- 
 called Statute of Bigamy, passed in the year 1276,^ it is laid 
 down that', where the technical words ' dedi et concessi ' have been <^ 
 used, and a tenure created between the Teoffee^nd the feoffor, 
 then the latter and his lieirs are bound to warranty ; even 
 though no homage is rendered, nor any express warranty given. 
 But where the feoffment is by way of 'substitution,' i.e. where 
 the feoffee is to hold, not of the feoffor, but of the chief lord or . . 
 some other person, then, although the feoffor will be bound to 
 warranty during his own life, ' by force of his own gift, ' yet his 
 heirs will not be bound, without express words. 
 
 Now it will be remembered that, fourteen years after the 
 passing of the Statute of Bigamy, the statute Quia Emptores ^ 
 put an end to the practice of subinfeudation in fee simple ; thus 
 bringing the most important class of conveyances within the 
 restricting clause of the older statute. In other words, after 
 1290, the ordinary feoffment in fee simple would not impose 
 any warranty upon the feoffor's heirs, because it created no 
 
 ' 4 Edw. I, st. Ill, c. 6. (The statute takes its name from its 5th chapter, 
 which deals with a certain theological prejudice against second marriages.) 
 * 18 Edw. I (1290) c. 1. (See ante, p. 102.)
 
 110 A SHORT HISTORY OF ENGLISH LAW 
 
 tenure between him and the feoffee ; it would merely, as a 
 modern lawyer would say, impose a personal liability on the 
 feoffor himself. Of course, if the feoffment were accompanied 
 by a charter containing an express clause of warranty, the case 
 might be otherwise. 
 
 But now the question has to be asked : How was a warranty in 
 fact enforced? And to this question only a general answer can 
 be given ; for the subject bristles with difficulties and obscu- 
 rities. 
 
 Let us take, in the first place, what may be called the 'active' 
 enforcement of a warranty ; i.e. the feoffee, being threatened 
 Vouching to with a hostile claim to the land by a third party 
 Warranty ' vouches to warranty' the feoffor ('warrantor') 
 or his heir. The latter is then summoned by Writ of Warranty, 
 to appear in the proceedings which have been commenced against 
 the feoffee, and make good his warranty. Four courses are 
 open to the warrantor. He can either deny the warranty ; in 
 which case he subjects himself to a kind of interlocutory lawsuit, 
 possibly ending in a duel, with the feoffee.^ Or he ma.y take up 
 the feoffee's defence, and carry on the original action brought 
 by the hostile claimant ; thus either securing the land to the 
 feoffee, or, if the action goes against him, replacing the lost estate. 
 Or, thirdly, he'may admit his liability at once, in which case the 
 original plaintiff gets judgment against the feoffee, and the^latter 
 judgment against the feoffor for an equivalent estate. Or,_finally, 
 the feoffor may himself 'vouch to warranty' his feoffor; in 
 which case the proceedings turn against the latter. Naturally, the 
 original plaintiff would find this dilatory procedure very annoy- 
 ing; and the possibility of numerous warranties was, in fact, 
 one of the great reasons for the unpopularity of the old real 
 actions, though the plaintiff was, by the Statute of Westminster 
 the First, to a certain extent relieved against abuse of the pro- 
 cess. ^ Subject, however, to this statutory restriction, the practice 
 of 'vouching to warranty,' already well known in Glanville's 
 
 ' If the feoffee was sued by Writ of Right, he could vouch the feoffor; and the 
 main action was then suspended until the side issue between him and the feoffor 
 was settled. If the feoffee had been turned out by a possessory assise, in which 
 a warranty could not have been pleaded, he could have a separate Writ of Warrantix 
 Carlae against the feoffor. 
 
 * 3 Edw. I (127.5) c. 40. It will be observed, that the relief given by the statute 
 only applied to 'Writs of Possession,' not to the Writ of Right. It was .slightly ex- 
 tended, however, by the 20 Edw. I (1292) st. I, the so-called Statute of Vouchers.
 
 METHODS OF ALIENATION 111 
 
 time/ seems to have lasted until the practical disappearance of 
 real actions ; and, as we shall shortly see, it formed an essential 
 part of the fiction of the Common Recovery.^ Further than 
 this, the strict doctrine was, that the liability to satisfy the 
 warranty was not merely personal, but extended to all the lands 
 belonging to the warrantor at the date when the warranty was 
 entered into, even after they had passed into the hands of innocent 
 purchasers for value. So that, not merely the original warrantor 
 and his heirs, but all purchasers from him, could be ' vouched to 
 warranty, ' 
 
 In early times, when ancestral liabilities were regarded as 
 indelible, and the possibility that an heir might be called upon to 
 undertake inherited responsibilities irrespective of inherited 
 assets, was treated as natural, this extreme operation of the 
 doctrine of warranty might be tolerated. But, with the change 
 in the law of inheritance which, as we have seeu,^ took place in the 
 twelfth and thirteenth centuries, and especially after the sepa- 
 ration between-lhalieiT and the executor, we notice a distinct 
 modification of the liability on warranty. Briefly _put, the 
 change was from active to passive liability. The 
 heir of the feoffor was no longer liable to replace 
 the estate conveyed by his ancestor ; but he was ' barred, ' or, 
 as a modern lawyer would say, ' estopped, ' ^ at any rate in 
 certain cases, from claiming, through his ancestor, the estate 
 which that ancestor had conveyed 'with warranty.' In all 
 probability, this liability had a good deal to do with breaking 
 down the ancient retrait lignager, i.e. the right of the heir to 
 set aside his ancestor's alienation;^ probably, also, it was the 
 origin of the rule that, even after the introduction of the exec- 
 utor, the heir was liable (at least to the extent of assets) for 
 specialty debts in which he was expressly bound. But, at the 
 very beginning of our period, we find the doctrine of 'bar' 
 further cut down by a famous distinction. If the right to the 
 estate claimed descended to the heir from the same ancestor, and 
 by the same course, as the liability to warranty, then the liabil- 
 ity was a bar to the claim to the estate, assets or no assets; 
 
 ' See lib. Ill of Glanville's work. « Post, pp. 113, 114. ' Ante, pp. 64-65. 
 
 * The technical difference between a bar by warranty and an estoppel is pointed 
 out by Coke (Co. Litt. 365b). 
 
 * Ante, p. 36.
 
 112 A SHORT HISTORY OF ENGLISH LAW 
 
 for this is 'lineal warranty.' If, on the other hand, the liability 
 to warranty came to the heir from an ancestor different from him 
 from whom he inherited the estate, then the heir.^ wilL. only 
 be bound to the extent of the assets he had received from the 
 ancestor who ^mposed on him the liability to warrant; for this 
 is 'collateral warranty.' Thus, if A, tenant in fee simple, 
 enfeoffs B with warranty and dies, A's heir is bound by the 
 warranty, and cannot claim the estate against B ; even though 
 he has received no assets from A. But if A is merely tenant 
 by the curtesy of his (A's) wife's estate, and enfeoffs B with 
 warranty, then, though A's heir probably inherits the estate and 
 the warranty, he will not be barred from claiming the estate, 
 unless, and to the extent to which, he has inherited land from 
 A. For the warranty descended on him from his father; while 
 the estate came to him from his mother. This is the very 
 case put by the Statute of Gloucester ;^ but it seems to have been 
 quickh' generalized into a principle. And thus we get the fa- 
 mous rule : ' lineal warranty without assets is a bar ; collateral 
 warranty without assets is no bar.' The passing of the Statute 
 De Bonis ^ caused some little difficulty ; for the statute made 
 no express provision against lineal warranty. But by the 
 time of Littleton,^ it was admitted that even lineal warranty 
 did not bind the heir in tail, except to the extent of assets re- 
 ceived from the warrantor.^ A warranty by a tenant for life or 
 years did not usually bind the heirs of the feoffor, because such 
 warranty ' commenced by disseisin ' ; ^ for a tenant for life or 
 years could not convey- a lawful fee. It might, however, con- 
 ceivably have that effect ; until such warranties were wholly 
 abolished by statute, in the next period.^ 
 
 The subject of warranties brings us naturally, though with 
 some possible violation of strict chronological order, to the form 
 Common of conveyance known as a Common Pa-covery. This 
 
 Recoveries , • •■ • • • < i • j.' • „ „ 
 
 was, ni its origni, a genunie real action, i.e. an 
 action to recover seisin ; but, in its application as a form of 
 conveyance, was a collusive proceeding between the parties, 
 
 >6 Edw. I (1278) c. 3. ^S. 708. 
 
 M.3 Edw. I (128.5) c. 1. < Litt. ss. 711-712. 
 
 ' Ihid., s. 698. Where such warranty did not 'commence by disseisin,' e.g. in the 
 cases of tenant by the curtesy or in dower, who were lawfully seized, the effect of the 
 warranty was, as has been said, nullified by statute (6 Edw. I (1278) c. 3 (curtesy) ; 
 II Hen. VII (1494) c. 20 (dower)). 
 
 »4 & 5 Anne (1705) c. 3, s. 16.
 
 METHODS OF ALIENATION 113 
 
 entered into forthie purpose of barring the lawful claims of 
 strangers!^ We"have seen already^ that use was made of it to 
 defeat the rights of lessees for years ; and from the statute 
 which gave protection to the lessee, we infer that the collusive 
 recovery had been used also to defeat the claims of dowresses, 
 tenants by the curtesy, reversioners, and heirs. In other words, 
 any person being actually seised of land could, by 'making de- 
 fault' in any 'real' action brought against him by a collusive 
 plaintiff, practically defeat all claims which had arisen since 
 the date at which the collusive plaintiff's fictitious title was 
 supposed to have accrued. 
 
 The Statute of Westminster the Second appeared,^ by allow- 
 ing any person injured by a collusive action of this kind, to 
 'falsify' or show the fraudulent character of the proceedings, 
 to have put an end to the practice. But, as was natural, the 
 statute did not expressly safeguard the rights of contingent 
 remaindermen and donees of powers ; for such interests were 
 not, at the time of its passing, yet invented. It is, however, a 
 little surprising, that it did not expressly safeguard from de- 
 struction by such means the interest of the issue and remainder- 
 man in and after the new estate tail introduced by the statute 
 itself. This omission led directly to the most famous applica- 
 tion of the fictitiQiia_mal action_as % ' common^ssuranoe^ 
 
 For, although it would have been too bold for the courts to 
 have allowed the tenant in tail to 'bar' or destroy the rights 
 As Bar of of the issue in tail and remaindermen or reversioner, 
 EntaU ^y ^jjg simple process of making default in a collusive 
 
 action brought against him by a stranger who claimed to be 
 seised in fee simple, by a title older than the date of the creation 
 of the fee tail, yet, under the disguise of a recompense in warranty, 
 this was just what the courts, probably before the end of the 
 fourteenth century,^ permitted him to do. The tenant in tail 
 did not himself defend the action ; before it commenced, he 
 created a 'tenant to the praecipe,' i.e. a defendant to the action, 
 by transferring the seisin with warranty to a collusive nominee. 
 Upon being sued, the nominal defendant 'vouched to warranty' 
 the tenant in tail, who himself vouched to warranty another 
 
 1 Ante, p. 90. 2 13 g^w. I (1285) cc. 3. 4. 
 
 ' The reasona which have led Sir Howard Elphinstone to this conclusion will be 
 found in his article in L.Q.R. VI, 280.
 
 Hi A SHORT HISTORY OF ENGLISH LAW 
 
 collusive person, and he again, it may be, others ; until at last 
 some 'man of straw, ' usually a petty court official, was vouched, 
 and the process of vouching ceased. But then the collusive 
 plaintiff 'craved leave to imparl,' or talk matters over, with 
 the 'common vouchee'; and, on leave being granted by the 
 court, the two withdraw for the imaginary conference. In due 
 course, the collusive plaintiff re-appeared ; but the common 
 vouchee made default. Whereupon the judgment of the court 
 was given in favour of the collusive plaintiff against the common 
 vouchee, who was condemned, in pursuance of his imaginary 
 warranty, to recompense the issue in tail and the other parties 
 under the settlement, with lands of equivalent value. Needless 
 to say, the latter part of the judgment was purely illusory ; 
 but the earlier gave to the collusive plaintiff a title to the land, 
 guaranteed by the judgment of the court. If the plaintiff were 
 intending to purchase the land, he thus acquired an exceptionally 
 good title ; if he were merely acting to oblige the tenant in tail, 
 he re-conveyed to the latter, as soon as possible, an estate in fee 
 simple, clear of the claims of the issue in tail and remainder- 
 men. 
 
 Revived for the purpose of barring entails, the Common 
 Recovery was also applied to defeat other interests not ex- 
 other pressly protected b}' statute, e.g. contingent re- 
 Purposes mainders and executory interests, and powers appen- 
 dant or in gross. ^ This effect seems to have been produced, at 
 least in the case of a tenant for life, by the doctrine that the 
 suffering of a Common Recovery Avorked a forfeiture, in the 
 same manner as a feoffment in fee.- The process was also fre- 
 quently used to bar claims to dower; but only with the con- 
 sent of the dowress, whose rights had been, as we have seen, 
 expressly protected by statute.^ Statutory restrictions pre- 
 vented its operation against Crown reversions;'* and threw 
 some doubt upon its efficacy when employed by a tenant for 
 life.^ A statute of the year 1540 also expressly made it void, 
 at least so far as a bar of the entail was concerned, in the hands 
 
 ^Plunkel V. Holmes (1661) 1 Lev. 11 ; King v. Melling (1673) 2 Lev. 58. 
 *Sir W. Pelham's Case (1590) 1 Rep. 8. 
 ^ Ante, p. 113; Bare v. Snow (1578) Plowd., at p. 515. 
 
 ♦34 & 35 Hen. VIII (1542) c. 20. In such cases the Conirmii Recovery did 
 not even bar the heirs in tail (ss. 2, 3). 
 » 14 Eliz. (1572) c. 8.
 
 METHODS OF ALIENATION 115 
 
 of a 'tenant after possibility,' i.e. a tenant in tail under a limita- 
 tion which cannot continue after his death. ^ 
 
 The Fine is a still older form of fictitious lawsuit employed 
 as a ' common iiSiiuciiuce ' : and may, conceivably, 
 
 Fines — — — — ""^ — *^ 
 
 be traced back in origin to the 'shire witness' of 
 pre-Conquest times. As a process in the royal courts, it is 
 certainly as old as the twelfth century ; and records of Fines 
 in the Court of Our Lord the King are extant from the year 
 1179. In the year 1195, an important official regulation with 
 regard to their formalities was issued ; and from that day until 
 their abolition by statute in 1833, the records of Fines are com- 
 plete. 
 
 Unlike the Common Recovery, the Fine waSi_in„foxm, a per- 
 sonal action ; though it ' savoured of the realty. ' It was usually 
 commenced by a Writ of Covenant (Quod ei teneat conventionem) 
 founded on a real or imaginary contract under seal to do the 
 act which was the object of the intended conveyance. In later 
 days, the intending alienor actually covenanted to levy a Fine to 
 the specified uses. The intending alienee, or 'conusee' (as he 
 was later known) was the plaintiff in the fictitious action, which, 
 instead of being carried through all its stages (as was the Common 
 Recovery), was speedily compromised, with the permission 
 of the Court, on the terms arranged between the parties (the 
 'concord'), which were then embodied in the judgment of 
 the Court, and entered on the record.^ Thus the alienee secured, 
 not merely unimpeachable evidence of his title, but judicial 
 authority for its validity. The form which the proceedings 
 assumed at the end of the thirteenth century is described, prob- 
 ably with accuracy, in a document known as Modus Levandi 
 Fines, which is printed among the Statutes of the Realm.^ 
 
 The Fine was a much more flexible instrument than the Com- 
 mon Recovery. The latter, being a 'real' action, could only be 
 Advantages employed by, or with the concurrence of, the person 
 of a Fine actually seised of the land ; because he alone could 
 defend the action. Consequently, it was unsuitable for the trans- 
 
 1 32 Hen. VIII, c. 31. The familiar example is, when land has been given to 'A 
 and the heirs of his body by his wife B.' B dies leaving no issue, or only issue who 
 die in A's lifetime without issue. A is then said to be 'tenant in tail after possi- 
 bility of issue extinct ; ' because no issue of A and B can now possibly exist. 
 
 2 These terms frequently included a 'warranty' of title by the conusor; which 
 seems inconsistent with the fiction that the concord is the judgment of the Court. 
 
 ^ As 18 Edw. I (1290).
 
 116 A SHORT HISTORY OF ENGLISH LAW 
 
 f er or release of ' mere rights, ' such as reversions, rights of dower, 
 claims of easements, and the like. Moreover, in practice, it 
 was only used to pass an estate in fee simple ; because it was 
 difficult, in a judgment in a real action, to make any more elab- 
 orate limitations. The Fine suffered from no such restric- 
 tions ; and, as a fact, was as often used to effect an elaborate 
 settlement {sur don, grant, et render) as to convey an absolute, or 
 at any rate a simple interest^ (come ceo qu'il a de son don) or 
 release a right (droit tantum)? Moreover, the process gave 
 an opportunity for the 'separate examination' of a married 
 woman ; and was thus specially suited for binding her interests. ^ 
 Not unnaturally, these fictitious conveyances, and especially 
 the Fine, were open to abuses. There was not so much danger 
 
 _ , J in the case of the Common Recovery: on account 
 Safeguards , . 
 
 of the rule which made the person actually seised 
 of the land a necessary party. But, as we have seen,^ even in 
 the case of a Common Recovery, it was necessary to provide, 
 in certain events, for the 'falsification' by a party interested. 
 The danger with Fines was much greater ; for what was to pre- 
 vent any pair of enterprising strangers arranging that one 
 should convey to the other by Fine an interest in the land of 
 a third party? The Court would pass the transaction as of 
 course, on payment of the fees ; and the number and value of 
 these rendered every official of the Court anxious to facilitate 
 the levying of Fines. Then the conusee would appear to have 
 an indefeasible title by record to an estate to which he had not, 
 in truth, the remotest claim. 
 
 So obvious was this danger, that certain pleas appear to 
 have early been allowed when a title depending on a Fine was 
 set up in a law court. Thus the party sought to be ousted could 
 plead that the conusor of the, Fine nil habuit in tenementis, 
 when he levied it;^ or that he (the defendant), and his ances- 
 tors, semper fuervMjeisiti of the land, from a date prior to 
 the levy of the Fine. Again, it was expressly provided by 
 statute, that Fines levied by certain persons, such as husbands 
 
 ' Hunt V. Bourne (1703) 1 Salk., at p. 340. 
 
 ' See the differences explained by Blackstone, Comm. II, pp. 352-3, and forms 
 in Appendix IV. There was a fourth form (sur concessit) which did not acknowledge 
 the justice of the fictitious claim, but, for the sake of peace, conveyed the estate. 
 
 '.Statute of Gloucester (6 Edw. I (1278) c. 3). * Ante, p. 90. 
 
 ' This plea was expressly preserved by the statute of 1487 (4 Hen. VII, c. 24).
 
 METHODS OF ALIENATION 117 
 
 holding their wives' lands by 'curtesy,'^ and tenants in tail,^ 
 should not be effective to bar the rights of other persons. More- 
 over, it seems to have been a rule of the Common Law (probably 
 dating back to the old 'court days' of the popular moots), that 
 the so-called 'preclusive' effect of a Fine should not begin till 
 a year and a day after the levy ; ^ and, even then, could be 
 staved off by regular protest or 'continual claim. '^ But the 
 best protection was, probably, afforded by the practice of 'pro- 
 clamations.' 
 
 This practice seems to have begun with the statute of 1299' 
 {De Finihus Levatis),^ which must not be confused with the 
 Prociama- Modus LevaiuU Fines, before alluded to. By the 
 °°^ statute of 1299, the plea of seviper fuerunt seisiti was 
 
 abolished, or at least restricted ; but it was enacted that Notes 
 and ( ? of) Fines levied in the King's Court, should be read openly 
 and solemnly, two days in the weeks, at the discretion of the 
 Justices; all pleas ceasing for the purpose. Apparently, these 
 proclamations only bound 'parties and privies,' i.e. persons 
 related in blood to the persons levying the Fine.^ But a later 
 statute of 1483^ (repealed but substantially re-enacted by 
 another of 1487),^ increased the number of the proclamations,^ 
 and provided that any one, privy or stranger, who did not, by 
 action or lawful entry, dispute the Fine within the next five 
 years, or, in the case of infancy, coverture, or other disability, 
 within five years after the cesser of the disability, should be 
 for ever bound, or 'concluded' by the Fine. But the greatest 
 increase in the popularity of Fines occurred, when a statute of 
 1540,^° reversing the policy of De Bonis, ^^ enacted that a Fine 
 levied by a tenant in tail, with proclamations under the statute 
 
 ' 6 Edw. I (1278) c. 3 ; 32 Hen. VIII (1540) c. 28, s. 6. 
 
 2 13 Edw. I (1285) c. 1 (De Bonis). 
 
 ^Modus Levandi Fines (18 Edw. I, 1290) ad fin. i 
 
 * The actual necessity for repeated claim seems to have been abolished by 
 statute in 1360 (34 Edw. Ill, c. 16). 
 
 6 27 Edw. I, c. 1. 
 
 ^ This view seems inconsistent with the express language of Modus Levandi 
 Fines ; but it is difficult to explain otherwise the necessity for the statutes of 1483 
 and 1488. 
 
 ^ 1 Ric. Ill, c. 7. 84 Hen. VII, c. 24. 
 
 ^ The Act of Richard had provided for proclamations at Quarter Sessions as well 
 as in the Common Pleas. But this provision was not adopted by the statute of 
 1487. The details of these proclamations were subsequently modified by statute (23 
 Eliz. (1581) c. 3, s. 7; 31 Eliz. (1589) c. 2). 
 
 10 32 Hen. VIII, c. 36. " 13 Edw. I, c. 1, ad fin.
 
 118 A SHORT HISTORY OF ENGLISH LAW 
 
 of 1487, should bind the issue in tail. Thus a Fine became an 
 alternative means of barring an entail ; and it had this ad- 
 vantage over a Common Recovery, that it could be levied b}' a 
 tenant in tail in remainder, because a Fine, not being a 'real'' 
 action, did not require the concurrence of the person seised of 
 the land. On the other hand, it did not bar the estates in 
 remainder after the estate tail ; for the words of the statute of 
 1540 only extended to persons claiming ' by force of any such 
 entail.' Lastly, it may be remarked, that it was found necessary 
 to enact expressly that neither a Common Recovery nor a Fine 
 should enable a widow to convert her dower estate into a fee 
 simple.^ P 
 
 The tenacity with which the Common Law clung to the 
 principle that only b\' transfer of seisin could an estate, or 
 corporeal hereditament, in land be alienated, is shown by the 
 fact that even a Common Recovery and a Fine required, to 
 complete their effect, a Writ of Seisin, directed to the sheriff, 
 bidding him put the recoveree or conusee into actual. possession 
 of the land.^ But, as we have seen,^ the Common Law had, 
 from the very beginning of our period, recognized certain in- 
 terests, such as reversions, remainders, and 'hereditaments . 
 purely incorporeal,' which did not admit of seisin ; and, 
 though these could, no doubt, often be created or transferred 
 by Fine, still it would have been oppressive to have compelled a 
 resort to that costly process for every simple case. 
 
 Accordingly, we find it well established by the time of Little-^ 
 ton, that any interest in land which does not confer seisin may 
 be created and transferred by simple deed, or writing 
 under seal,'* apparently without any notarial or 
 other public sanction. Thus, true reversions, remainders, 
 rents, advowsons, easements, and profits^ 'lay in grant' — i.e. 
 could be created or transferred by deed. There was some doubt 
 as to the so-called reversion on a term of years. For, it will be 
 remembered,^ no term of years confers seisin ; and, therefore, 
 the reversioner remains seised of the land. Yet, in fact, the 
 
 ' 11 Hen. VII (1495) c. 20; 32 Hen. VIII (1540) c. 36, s. 2. 
 
 ' After the passing of the Statute of Uses, this writ became unnecessary, if the 
 vendor were seised at the time when the proceedings commenced, and the Recovery 
 were suffered or the Fine levied, to uses. But Cruise (II, 134) seems to deny this as 
 to Recoveries. 
 
 ^ Ante, pp. 83-86; 92-95. ■• Litt. s. 1; Co. Litt. 9a. 
 
 ' Litt. 83. 627-628. « Ante, p. 89.
 
 METHODS OF ALIENATION 119 
 
 termor is probably in possession; and, therefore, feoffment, 
 which impHes vacant possession, is hardly appropriate. In the 
 end, it seems to have been settled, that either feoffment (with 
 the tenant's consent), or Fine (where the process of the Court 
 had to b6 invoked to compel the tenant to attorn), was appro- 
 priate ; while merely the services of the tenant, as distinct 
 from the lordship, could be transferred by deed of grant. ^ It 
 must be remembered, that for the creation and transfer of terms 
 of years themselves, no deed, or even writing, was required 
 before 1677;^ whilst, on the assumption by the Common Law 
 Surrender Courts, towards the end of the fifteenth century, of 
 and jurisdiction in copyholds, the King's judges found the 
 
 system of conveying these interests by surrender and ad- 
 mittance duly recorded on the manorial rolls, fully established. 
 This process, being thoroughly in accordance with feudal prin- 
 ciples, they did not seek to change ; on the contrary, they 
 enforced it by Writs -of Mandamus directed to_ manorial lords. 
 But the passing of the Statute of Uses^ rapidly disintegrated 
 the strict feudal theory of transfer. It will be remembered, that 
 the ostensible object of this statute was to get rid of the alleged 
 evils attendant upon the practice of creating 'uses,' or beneficial 
 interests in land. Inasmuch as these interests did not confer 
 seisin, and were recognized only by the Court of Chancery, 
 there seem to have been no rules of form as to their creation 
 and transfer. Originally, they were created by way of supple- 
 ment to feoft'ments ; and it might have been in the highest 
 degree inconvenient to record their nature in writing. Secrecy 
 was of the essence of the transaction. Later on, the feoffment 
 was seen to be unnecessary ; if the donor^^coyenanted to stand 
 seised to the use of ' the donee, that was quite sufficient for the 
 Court of Chancery, which could as well make the donor and his 
 heir, as any third party, a trustee. In this last case, no doubt, 
 the uses were expressed in the deed ; but the Court of Chancery 
 would equally hold that if A had 'bargained and sold,' or 
 agreed to sell, land to B, and B had paid the purchase money 
 to A, A was seised 'to the use of B. And, in such a case, 
 there need have been no writing at all before 1535. 
 
 1 Bracton, fo. 82 ; Co. Litt. 48b, 49a. 
 
 2 29 Car. II, c. 3 (Statute of Frauds), as. 1-3. 
 » 27 Hen. VIII (1535) c. 10, S3. 1-3.
 
 120 A SHORT HISTORY OF ENGLISH LAW 
 
 But it was not only in matters of evidence that the Court 
 of Chancer^;_was, according to Common Law principles, deplor- 
 g J.. . ably lax. That Court would enforce all kinds of 
 
 and Shifting 'future' or 'executory' uses, quite inconsistent with 
 Common Law theories about remainders. Thus, a man 
 might be seised of land to the use of A's unborn children, with- 
 out any prior use. Such a 'springing' use would have been 
 impossible as a Common Law estate ; for it made no provision 
 for the seisin before the birth of the children. Again, a man 
 might be seised of land to the use of B and his heirs, with a 
 provision that if B died childless the use should 'shift' away to 
 C and his heirs. Such an interest as C's would have been im- 
 possible at Common Law ; being, in effect, either a right to 
 take advantage of a condition imposed by a stranger, or a re- 
 mainder after a fee simple. 
 
 The passing of the Statute of Uses had a revolutionary effect 
 on this system ; for it converted all these hitherto ' equitable ' 
 interests into legal limitations. We have seen^ how this result 
 was evaded, by the collusion of the Courts, in the case of trusts. 
 The legislature itself attempted to avert the unforeseen and un- 
 desired consequences in the matter of alienation. 
 
 Apparently it was determined to tolerate the 'covenant to 
 stand seised.' For, by some process of reasoning, it had been 
 held by the Courts, that such an instrument was 
 to stand only applicable to settlements intended to ' build up a 
 family,' and only valid when based on 'natural love and 
 aifectipn. ' Moreover, by its very nature it involved a deed. 
 And so, seemingly to this day, a legal estate can be created by 
 means of a covenant to stand seised through the medium of a 
 use ; provided only that it is part of a marriage or family settle- 
 ment. But it was impossible to allow a sale of land to be effected 
 by mere word of mouth through a ' bargain and sale ' ; and so 
 the Statute of Inrolments^ was hastily passed to prohibit such 
 a catastrophe. 
 
 The Statute of Inrolments provided that no 'estate of inheri- 
 statute of tance or freehold should be made or take effect in any 
 Inrolments pgrsons, or any use thereof be made, by reason only 
 of any bargain and sale thereof, except the same bargain 
 and sale were made by writing indented sealed and enrolled' 
 
 ^ Ante, pp. 100 101. » 27 Hen. VIII (1536) c. 16.
 
 METHODS OF ALIENATION 121 
 
 (in one of the King's Courts at Westminster, or with the Custos 
 Rotulorum of the county in which the lands lay), within six 
 months after the date of the indenture. 
 
 Whatever the obscurities of style of this famous enactment, 
 it was, obviously, intended to prevent, not merely oral, but 
 secret dealings in land. Apparently, it was really operative 
 for about seventy years ; for we can trace a recognition of it 
 in statute,^ text-book,^ and decision,^ down to about 1615. 
 But then a daring evasion by a leading conveyancer, known 
 as the Lease and Release, received judicral' sanction ; and com- 
 menced a successful career of more than 200 years. The Lease 
 and Release, attributed to Serjeant Moore, was based on the 
 fact that the Statute of Inrolments did not apply to terms 
 of years.^ Probably the permission was intentional ; for, 
 as we have seen,^ neither the making nor the transfer of leases 
 for years was attended by any formality at the common law. 
 But certainly the framers of the Act did not foresee the extent 
 of the loop-hole. For, by making an oral bargain and sale for 
 one year, at a money price,® the intending vendor could raise 
 a use for a year in favour of the purchaser ; and this use would 
 be 'executed' by the Statute of Uses, and become a legal estate. 
 Then, by a well-established common law practice, a simple 
 deed of Release would enable the vendor to transfer his reversion 
 to the bargainee, without the latter even taking possession.^ 
 Thus, by this dual process, when once formally recognized by 
 the Courts,^ it was possible at last for a conveyance of a freehold 
 to be made, not, it is true, without a deed, but without transfer 
 of seisin. Thus the country lost the chance of establishing, 
 not indeed a Register of Titles, but a Register of Sales, which 
 might have done much to obviate the uncertainty of later titles. 
 
 ^ 5 Eliz. (1562) c. 26, extending the principal Act to the palatine counties of 
 Chester, Lancaster, and Durham. 
 2 Co. Litt. 35b. (pub. 1628). 
 ^Hynde's Case (1591) 4 Rep. 70b; Edward Seymor's Case (1613) 10 Rep. 95b. 
 
 * This fact had been pointed out in Heyward's Case (1595) at fo. 36a. 
 '^ Ante, p. 118. 
 
 ^Perhaps at first the price was actually paid; but in 1677 it was decided {Barker 
 V. Keat, 2 Mod. 249) that nominal consideration was sufficient. 
 
 ^ Apparently, Serjeant Moore, like every other inventor, had predecessors ; for 
 a common law process of Lease and Release was known. But it had this disad- 
 vantage, that the lessee was obliged to take possession, in order to convert his 
 interesse termini into an estate. For the reversioner could not convey to the owner 
 of a mere interesse termini by way of Release (Litt. s. 459). 
 
 * The leading case is Lutwich v. Mitton (1620) Cro. Jac. 604.
 
 122 A SHORT HISTORY OF ENGLISH LAW 
 
 Incidentally, also, the simple theory of feudal seisin became 
 greatly complicated by the grafting upon it of the new statutory 
 seisin of the Statute of Uses. For, though the Courts would 
 not admit that a mere legal seisin, unaccompanied by posses- 
 sion, w^ould entitle the person seised to the protection of the 
 Writ of Trespass,^ they were obliged to hold him seised for 
 other purposes, e.g. to make him a stock of descent, or to entitle 
 him to use the possessory assises and Writs of Entry. The use 
 of the words 'bargain and sale,' as applied to the creation of a 
 term of years, had previously been sanctioned by judicial deci- 
 sion ;^ and, a few years later, judicial dictum laid it down, that 
 the use of 'words of inheritance' was necessary to pass a fee by 
 bargain and sale, as well as by feoffment.^ Thus assimilated 
 to an ordinary conveyance, the Lease and Release became 
 practically the normal method of transfer of lands until the 
 passing of the Real Property Act, 1845,^ in the next period. 
 In addition to the merit of secrecy, it had the further merits 
 of avoiding the necessity for attornment of the tenant on a 
 transfer of a reversion,^ and of being free from the peculiar 
 consequences attending the use of a feoffment. For all con- 
 veyances by deed were 'innocent' conveyances, i.e. they passed 
 nothing but what the conveying party had ; while a J^Qfl^jnent, 
 as we have seen,^ might, until 1845, have a 'toituius^ operation.' 
 Thus the period we are studying is remarkable for achieving, 
 not merely the right of free alienation of land, but also the right 
 of alienation by secret conveyance. The latter achievement 
 we may sometimes regret ; but it was, probably, necessary for 
 the complete emancipation of land from its ancient tribal and 
 feudal bonds. 
 
 1 'Not to have trespass without entry and actual possession' {Lulwich v. Mitton, 
 vbi sup.). 
 
 ^Heyward's Case (1595) 2 Rep. 35a. 
 
 3 Corbet's Case (1599) 1 Rep., at 87b. 
 
 * 8 & 9 Vic. c. 106. (A statute of the year 1840 had allowed a deed of Release, 
 expressed to be made under it, to take the place of the former 'Lease and Release.') 
 
 ' Heyward's Case (1595) 2 Rep., 34b. « Ante, p. 108.
 
 CHAPTER IX 
 
 THE LAW OF PERSONAL PROPERTY 
 
 A SHORT chapter will suffice to deal with the law of per- 
 sonal property in this period ; not, as has been sug- 
 gested, because personal property was of small value 
 in the eyes of the law, but for other and more interesting 
 reasons. No doubt it is true, that the King's Courts had for 
 their original and primary purpose the protection and adjust- 
 ment of seisin and property in land. But, long before our 
 period ends, they had developed a very elaborate procedure for 
 the protection of that movable wealth which was increasing so 
 rapidly in England with the discoveries of the fifteenth and 
 sixteenth centuries, and the growth of international commerce. 
 Only, so far as chattels corporeal, or 'goods' were concerned, 
 they did not build up this law as a code relating to proprietary 
 interests. They approached it through the Law of Tort, by 
 means of the new writs of Trespass and Trover, and the modi- 
 fication of the old writ of Detinue. It will be convenient, 
 therefore, to postpone our examination of it till we come to 
 the discussion of the Law of Tort, in the following chapter. 
 TTprp^wpjTPpd (jp^l "Til y -tYith ^ c hnttnln iwoorp oreal. or, as they 
 are more commonly called, ' cho^es_jii_j-ction,' which, though 
 the}^ were at first regarded by the Courts with some suspicion, 
 became active towards the end of our period, and, in modern 
 times are, of course, of vast importance. 
 
 First in point of time and interest comes the mortgage debt, 
 i.e. the claim_f(pr_ the return of money lent on the security 
 
 „ , of some tangible object. Such claims are among 
 
 Mortgages . ^ . „ .,..,.. j 
 
 the earliest fruits of a commercial civilization, and 
 
 are nearly always effected in the same way, viz. by the deposit 
 
 or pledge of the security with the creditor, to be redeemed or 
 
 returned on the payment of the debt. We have seen ^ that, 
 
 ^ Ante, p. 66.
 
 124 A SHORT HISTORY OF ENGLISH LAW 
 
 even in Glanville's time, this process was applied indiscrimi- 
 nately to land and chattels corporeal ; and, with regard to the 
 latter, there is really very little more to say, for the contract of 
 pledge of chattels, though in recent times regulated by the 
 Pawnbrokers' Acts, is still, substantially, what it was in Glan- 
 ville's day. 
 
 But the pledge or 'gage' of land, though it remained, as a 
 debt, the personal property of the creditor, yet, owing to its 
 connection with the 'realty,' was, almost inevitably, drawn by 
 the powerful influence of feudalism within the orbit of land 
 law. For though, as has been said,^ Glanville did not treat the 
 pledgee of land as an owner or tenant, yet, in fact, the pledgee 
 was probably put in possession of the land, in order that he 
 might take the profits, either as interest {mortgage) or in reduc- 
 tion of the debt (vifgage). Without some such protection, 
 he would have had little by way of security ; - and so it could 
 hardly be denied that he had an interest, of some sort, in the 
 land. Glanville^ called this interest 'seisin'; and though, 
 as we have seen,^ seisin came ultimately to be regarded as an 
 improper description of the possession of the termor, yet the 
 increased protection given in the thirteenth century to the 
 lessee for years must have tended to strengthen the position 
 of the mortgagee of land, so long as mortgages were effected 
 by mere pledge, or delivery of possession. 
 
 Apparently, however, this way of effecting a mortgage came 
 to be regarded by conveyancers as dangerous. The growing 
 importance of seisin, the special remedies open to the person 
 seised, induced them to demand that their clients, the mort- 
 gagees, should obtain a freehold in the land. Possibly, also, 
 as has been suggested by learned writers,^ there was a technical 
 difficulty in the practice which arose later, of making the pledge 
 forfeitable if the debt was not paid by a certain day. This 
 was, in itself, a natural arrangement ; though the Court of 
 Chancery did its best to nullify it by establishing and develop- 
 ing its famous maxim : ' Once a mortgage, always a mortgage.' 
 But the Common Law Courts did not like the idea of a term of 
 years enlarging automatically into a freehold ; for one thing, 
 
 ' Ante, p. 88. 
 
 ' Glanville expressly says that the King's Courts would not, in his day, interfere ; 
 unless the land was actually in the 'seisin' of the creditor (Lib. X, cap. VIII, ad fin.). 
 ' Ibid. * Ante, p. 89. * P. & M. II, 122.
 
 THE LAW OF PERSONAL PROPERTY 125 
 
 the process was an evasion of the rule that a freehold could 
 only be transferred by feoffment with liverj^ of seisin. So, 
 by Littleton's day/ it appears to have become the practice for 
 mortgages of land to be effected bj^ way of feoffments on condi- 
 tion. The mortgagor (borrower) enfeoffed the lender (mort- 
 gagee) in simple, but attached a condition that, upon repayment 
 of the money, the mortgagor might re-enter the land, and avoid 
 the estate of the mortgagee. Of course this arrangement threw 
 upon the mortgagor the whole risk of omitting to make the 
 payment on the prescribed day; and it was the severity with 
 which the Common Law Courts enforced the condition, that 
 led to the high-handed interference of the Court of Chancery 
 in mortgage transactions. The Chancery, as is well known, 
 insisted in regarding the mortgage simply as a security for the 
 payment of the money, and would allow the borrower to recover 
 his land by payment of the principal and interest at any time, 
 making the creditor account rigidl}- for any profits derived from 
 his occupation, if he had been in possession of the land. But 
 the formal recognition of the lawfulness of taking moderate 
 interest in mortgage transactions, which occurred in 1545,^ 
 seems to have speedily substituted for the old mortgage, under 
 which the creditor took possession of the land at once, some- 
 thing like the modern arrangement, in which the debtor cove- 
 nants to pay a fixed interest, and, so long as he does so regularly, 
 the creditor does not take possession. The substitution for the 
 old Feoffment of the new conveyance by Lease and Release ^ 
 would, obviously, facilitate such a change, by rendering actual 
 transfer of seisin unnecessary. Nevertheless, in spite of the 
 efforts of Chancery, the freehold mortgage retained serious 
 defects till quite recent times ; one of the most serious being 
 that, whereas the debt itself was personalty, and went to the 
 mortgagee's executor on his death, the estate in the land was 
 realty, and went to his heir.'^ Accordingl}-, we ar^ not surprised 
 to find it stated by a learned conveyancer of later days, that, 
 at the end of the sixteenth century, there was a revival of the 
 
 ' Ss. 332-344. Apparently the vifgage was still known in Littleton's day (s. 327), 
 but rather as a supplement to the right of distress than as a substantive transaction. 
 
 2 37 Hen. VIII, c. 9, s. 4 ; 13 Eliz. (1570) c. 8. (The maximum rate was 10 per 
 cent.) 
 
 ' Ante, pp. 121-122. 
 
 * There were other drawbacks, e.g. the claim of the mortgagee's widow to dower.
 
 126 A SHORT HISTORY OF ENGLISH LAW 
 
 practice of effecting mortgages by creating terms of years.^ 
 But these were effected by deed, not by delivery of the land in 
 pledge, as in the days of Glanville. 
 
 It must not be supposed, however, that the formal mort- 
 gage was the only ' real ' sepurity known to the English creditor 
 
 in the later Middle Ages. The famous statute of 
 Statvtes ^ 
 
 }j ^\ ^ctQCL Burnel ^^enabled a merchant to enter^into a 
 
 '''^ sealed recognizance, or acknowledgment of debt, before the 
 mayor of a chartered borough ; and empowered the creditor, 
 on default, to seize the body of the debtor. If, after three 
 months further delay, the debt were still unpaid, the lands 
 and goods of the debtor were deli\'ered by the sheriff to the 
 creditor ' by a reasonable extent ' (i.e. estimate) ; the creditor 
 being entitled to hold them until his debt was satisfied out of 
 the profits, and having his possession of the land protected by 
 the then highly popular Assise of Novel Disseisin.^ The great 
 Statute of the Staple, in 1353,^ extended a similar protection 
 l;o recognizances entered into before the mayors of staple towns ; 
 and, so popular did the new form of security become, that, under 
 cover of fictions, it was resorted to by persons who were neither 
 merchants nor staplers. " Accordingly, in the year 1531,^ the 
 ' recognizance in the nature of a statute staple ' was formally 
 sanctioned by the legislature ; and the ' statute ' appears in 
 Elizabethan literature, among such other treasures as bonds, 
 mortgages, and bills, as part of the normal equipment of the 
 grasping money-lender. The Acts of Parliament authorizing 
 statutes merchant and staple were not repealed till 1863 ; ^ but 
 the ' statutes ' themselves had then long been obsolete. Never- 
 theless, they are interesting as the nearest approach to a 
 ' hypothec,' or real charge, of land, which English Law has 
 known. 
 
 Of still greater historical and practical importance are bills 
 of exchange, cases about which do not begin to come into the 
 
 ' Barton, Modern Precedents, V, 133. There was certainly the form of absolute 
 conveyance (bargain and sale) accompanied by deed of defeasance (West, Sym- 
 bolaographia, s. 269). 
 
 2 11 Edw. I (1283), amended by the Statute of Merchants (13 Edw. I (1285) c. 1). 
 In the latter year, a similar remedy (but restricted to half the debtor's land), was 
 given to judgment creditors by the Statute of Westminister II (13 Edw. I, st. 1 
 (1285) c. 18). 
 
 ' This was anomalous ; for the Assise was, properly, a freeholder's remedy. 
 
 * 27 p:dw. Ill, St. II, c. 9. * 23 Hen. VIII, c. 6. 
 
 • Statute Law Revision Act of that year.
 
 THE LAW OF PERSONAL PROPERTY 127 
 
 King's Courts till towards the end of our present period/ 
 BUis of though they were probably famihar, long ere that 
 
 Exchange date, to the courts administering the Law Merchant. 
 The subject has never been satisfactorily investigated, so far 
 as England is concerned ; but it is clear that such documents 
 were known on the Continent from a very early date,- and it 
 is unlikely that they remained long unknown in this country 
 after the beginning of the thirteenth century. Probably they 
 were first introduced to overcome the risk and expense of the 
 actual transport of coins. European roads were very unsafe 
 in the Middle Ages ; and a merchant of Paris, who owed a debt 
 to a London merchant, would hesitate long before trusting the 
 money to the perils of the journey between Paris and London. 
 If, as was not unlikely, a second London merchant owed him 
 (the Paris merchant) a similar or larger sum, he w^ould save 
 much risk and expense by simply directing the second London 
 merchant to pay over the sum to the first ; and the letter, or 
 * bill,' containing this request would, naturally, be sent to 
 the first London merchant for presentation to the second. 
 If the latter did not admit that he was indebted to the writer 
 or drawer of the letter or bill, he refused to accept, or 'dis- 
 honoured,' the request; but, at any rate, the dishonoured 
 missive served as an acknowledgment by the merchant at Paris 
 of his indebtedness. 
 
 Probably, also, letters or bills of exchange were used at an 
 early date to get over the difficulties of foreign exchange. In 
 the days when the coinage of Western Europe was in a thor- 
 oughly unsatisfactory condition, the terms of exchange were 
 a matter of the highest importance for international trade. 
 Accordingly, we find Edward III, in his Statute of Money,* 
 providing that Tables of Exchange shall be set up at Dover 
 and other places approved by the Council, and exchanges there 
 effected by Wardens under the inspection of Royal Comptrollers. 
 In all probability, this statute contemplated the actual exchange 
 of coins at a physical table ; but this clumsy method must, one 
 
 1 The earliest reported is said to be Martin v. Bure, in 1602 (Cro. Jac. 6). The 
 Court seems to be perfectly familiar with the document. 
 
 2 See the author's Early History of Negotiable Instruments (Select Essays in 
 Anglo- American Legal History, III, 51-71). 
 
 ^ 9 Edw. Ill, St. II (1335) c. 7. The enactment was repealed in 1344, on the 
 issue of the new gold coinage (18 Edw. Ill, st. II, c. 6).
 
 128 A SHORT HISTORY OF ENGLISH LAW 
 
 would think, have soon given way before a documentary sj'stem 
 of notes based on a schedule, or ' table,' of rates of exchange. 
 It is also probable, that the protectionist policy of the later 
 fourteenth century, which aimed at preventing the export of 
 English coin,^ did a good deal to encourage the use of negotiable 
 paper. At any rate, we get a definite mention of 'letters of 
 exchange' in a statute of 1379.- In the year 1390, Richard II's 
 Parliament enacted that every foreign merchant who sent 
 English money abroad should give a bond to the Chancellor 
 to buy within three months staple English goods of the same 
 value, which must, presumably, have been paid for in English 
 coin.^ What more likely than that this rule should induce 
 merchants to conduct their transactions by means of letters 
 of credit, easily transportable?"* The elaborate Money Statute 
 of 1477^ expressly provides that the foreign merchant, before his 
 departure, shall prove his compliance with the policy of Richard's 
 statute, by a ' writing ' to the merchants to whom he sold his 
 goods, or by other sufficient proof. An Act of 1487,^ aimed at 
 eradicating a species of 'new Chevisaunce' called 'dry exchange,' 
 speaks of ' buying any obligation or bill ' ; and INIalynes, who 
 wrote in 1622,^ expressly says, referring to this statute, that 
 this process of 'dry exchange' was carried on by means of 
 bills of exchange. It is obvious that such documents were 
 familiar to jMalynes, who, in his Lex M creator ia, incorporated 
 a treatise on them by John Marius, a notary public. 
 
 A more notorious, and equally valuable, form of personal 
 property appeared also as a lawful institution at the end of 
 the period we are now discussing ; but it had an 
 earlier, and somewhat stormy career, as a chartered 
 libertine. The powers claimed for the prerogative in the Middle 
 Ages in the matter of the regulation of trade and commerce 
 were extensive and vague; and, with the expansion of trade 
 which took place in the early sixteenth century, it was not 
 unnatural that the Crown, always suspicious of international 
 
 1 E.g. 27 Edw. Ill, st. II (1353) c. 14. «3 Ric. II, c. 3 (2). 
 
 ' 14 Ric. II, c. 2. A note (or 'estreat') of these bonds had to be sent to the 
 Exfhequer every fifteen days (11 Hen. IV (1409) c. 8). 
 
 * The statute of 1353 provides that the searchers at the ports shall give the foreign 
 merchant a 'writing' showing the amount of foreign money brought into the realm 
 by him. 
 
 <■ 17 Edw. IV. e. 1. 6.3 picn. VII, c. 6. 
 
 ^ Lex M creator ia, Part III, ch. 1 (p. 201).
 
 THE LAW OF PERSONAL PROPERTY 129 
 
 dealings which it did not itself supervise, should attempt to 
 regulate foreign trade by granting the monopoly of dealing 
 with various countries to different companies of merchants. 
 So long as any respectable English merchant who wished to 
 join the company could do so, there was nothing opposed to 
 the spirit of the age in such an arrangement. But when it came 
 to granting monopolies of articles like soap, playing cards, 
 silver lace, and so forth, not to adventurous companies, but 
 to Court favourites, who simply made use of their privileges 
 to sweat the public, popular feeling began to rise. As is well 
 known, the question of the legality of Letters Patent conferring 
 such monopolies slumbered uneasily, or awoke but fitfully, 
 during the reign of Elizabeth ; but with the advent of her 
 successor, it arose to vigorous life. At length, by the Statute 
 of Monopolies of 1623,^ it was enacted that all monopolies, 
 however granted, should be absolutely void; with the excep- 
 tion of Letters Patent and grants of privileges for terms not 
 exceeding fourteen years, for the working or making of new 
 manufactures within the realm, in favour of the true and first 
 inventors thereof. This exception is still the basis of our 
 Patent Law ; though, as we shall see, in considering the next 
 period, the simple provision of 1623 has expanded into a great 
 Patent Code. 
 
 The last form of personal property to which reference need 
 be made under this period is copyright. No formal recognition 
 Copyright ^^ ^^ author's right to secure the profits of his pub- 
 lications appears to have been accorded. But it 
 seems to have been the practice to regard a license to publish 
 as conferring something in the nature of exclusive rights ; and 
 there are traces of such rights having been made the subject 
 of Letters Patent.- As is well known, it was the policy of the 
 State, from the time of the introduction of printing, to keep a 
 tight hand on the operations of the press. Again, the action 
 of the State must not be hastily condemned. The appearance 
 of the printing-press speedily revolutionized politics, and at first 
 rendered the task of government enormously difficult. It was 
 against the abuses of the licensing system, especially in the later 
 days of the Star Chamber, more than against the system itself, 
 that popular feeling rose. Still, the appearance of Milton's 
 
 1 21 Jac. I, c. 3. « Licensing Act of 1662 (13 Car. II, c. 33, s. 6).
 
 130 A SHORT HISTORY OF ENGLISH LAW 
 
 splendid Areopagitica: or Speech for the Libert i/ of LnJicensed 
 Printing, in the year 1644, showed which way the tide was 
 turning; and, as we shall see, in discussing the next period, 
 the licensing system did not, in England, survive the seven- 
 teenth century. Unfortunately, when it fell, it left the hapless 
 author unprotected; and it was not until 1709^ that the first 
 statutory recognition of copyright was granted. 
 
 It now remains only to point out, that succession to personal 
 property after the death of its owner receiAed some further 
 WiUs and treatment in this period on the lines described in 
 Intestacies ^^-^ earlier chapter. The Statute of Westminster 
 the Second,- as we have seen, clearly recognizes the responsi- 
 bility of the executor for the deceased's debts, to the amount 
 of his personalty, and extends it to the * Ordinary ' of the Church 
 on intestacy. It likewise gives the executor a remedy by Writ 
 of Account against the deceased's debtors. A statute of 1330 
 set aside the maxim : actio poenalis moritur cum persona, to the 
 extent of allowing executors to sue for trespasses de bonis asporia- 
 iis committed against their testator during his lifetime;^ and 
 another, of 1352,^ puts the executor's executor in the same posi- 
 tion, both as regards rights and liabilities, as the original exec- 
 utor. This last Act, also, tells us incidentally, that statutes 
 merchant and recognizances were enforceable b}^ executors. 
 Seven years later, the 'Ordinary' is compelled to appoint, as 
 'administrator' of the intestate's goods, 'the next and most 
 lawful friends of the deceased,'^ who are to have the rights and 
 liabilities of executors in respect of the estate. The fees de- 
 manded by the ecclesiastical courts for probates and grants of 
 administration were severely regulated by statute at the Refor- 
 mation ; ^ but, as we have said, the jurisdiction in testamentary 
 matters was not taken away from them, and even survived the 
 Civil War and the Commonwealth. Nevertheless, the latter pe- 
 riod was disastrous to it ; for, during the Interregnum, the King's 
 courts began to entertain suits for the payment of legacies ; ^ 
 and the King's courts rarely gave up any jurisdiction which 
 they had once acquired. The most startling development of 
 the law of succession to personalty in this period is, however, 
 
 ' 8 Anne, c. 19. * 25 Edw. Ill, st. V, c. 5. 
 
 2 1.3 Edw. I (1285) cc. 19, 23. '/.e. his nearest relatives. 
 
 3 4 Edw. Ill, c. 7. 6 21 Hen. VIII (1529) c. 5. 
 ' Nicholson v. Sharman (1661) 1 Sid., at p. 46.
 
 THE LAW OF PERSONAL PROPERTY 131 
 
 the claim of the executor to keep for his own benefit any prop- 
 erty not disposed of by the will ; unless the testator had, 
 directly or by implication, excluded him. How this remark- 
 able doctrine came to be accepted, it is not easy to discover.^ 
 It is true, that the executor had always distributed the 'dead's 
 part,' and that the rule of 'legitim'^ seems to have largely 
 disappeared in the sixteenth and seventeenth centuries, leaving 
 scope for the familiar residuary bequest. But the rules of 
 intestate succession were settled by the Statutes of Distribution 
 in 1670 and 1685;^ and j-et the rule in favour of executors, 
 despite judicial criticism,^ lingered until 1830, when it was 
 partially, but not entirely, altered by the Executors Act.^ Even 
 now it prevails against the claim of the Crown ;^ and this is 
 the more remarkable, that the Crown has long claimed, as 
 bona vacantia, personal property in the hands of a trustee, where 
 the trusts have failed and there are no representatives of the 
 settlor. In the case of land, the theory of tenure gave the 
 beneficial interest, in similar circumstances, to the trustee;^ 
 but even this rule has lately been altered by statute.^ 
 
 J See on this point the essay of Caillemer, previously referred to (Select Essaya 
 in Anglo- American Legal History, III, 746-769). 
 
 2 Ante, pp. 60, 61. s 22 & 23 Car. II, c. 10 ; 1 Jac. II, c. 17, ss. 6, 7. 
 
 ^A. G. V. Hooker (1725) 2 P. Wms. 338 (King, C). 
 
 6 11 Geo. IV & 1 Will. IV, c. 40. 
 
 « Re Bacon's Will (1881) 31 Ch. D. 460. 
 
 ' Burgess v. Wheate (1759) 1 Ed. 177. 
 
 * Intestates Estates Act, 1884, s. 4.
 
 CHAPTER X 
 
 CONTRACT AND TORT 
 
 IT has previously been pointed out in this book, in more 
 than one passage, that one of the most striking lessons 
 to be learned from a study of legal history is, that ideas 
 which to us now seem absolutely distinct, and even opposed, 
 are found originally to have been blended in a common stock, 
 from which they have subsequenth^ split off by a process of 
 specialization. No better example of this truth could be found 
 than in the history of Contract and Tort. To us, these two 
 institutions seem wholly distinct ; separate books are written 
 about them, and Acts of Parliament treat them as mutually 
 exclusive. We regard an action of Contract as an action to 
 prevent or compensate for a breach of a promise ; an action 
 of Tort as an action to punish or compensate for a wrong, such 
 as assault or defamation, which has not any necessary connec- 
 tion with a promise. An ordinary defence to an action of 
 Contract is, in effect : ' I did not promise.' What should we 
 think if a defendant in an action for libel defended himself on 
 the ground that he had not promised not to libel the plaintiff? 
 It is true that, occasionally, a case arises which causes some 
 difficulty ; ^ and it would hardly be possible to throw a more 
 effective apple of discord into a company of lawyers, than by 
 starting a discussion on the question whether Detinue was an 
 action of Contract or of Tort. But we are apt to regard these 
 difficulties as inseparable from any legal classification ; whereas 
 a little knowledge of history would enable us to trace them to 
 their true source. As a matter of historical fact, the simple con- 
 tract and the ordinary tort spring from the same stock ; and the 
 wonder would be if they did not, in some points, betray signs 
 of their common origin. 
 
 1 E.o. Bryant v. Herbert (1878) 3 C.P.D. 389; Du Pasquier v. Cadbury [1903] 1 
 K.B. 101.
 
 CONTRACT AND TORT 133 
 
 We have seen that, in the previous period, the only remedy 
 of a general nature for anything like what we understand by 
 Pg^^ a contract, was the Action QL .Debt.^ This action 
 
 was, at first, in truth an action to recover a specific 
 object ; usually a moveable, because actions to recover land 
 were conducted by other and more elaborate machinery. By 
 Bracton's time, as we have seen, it had specialized into two 
 forms, the Writ of Debt, strictly, in which a fixed sum of money 
 was sought to be~recovered, and the Writ of Detinue, in which 
 a specific chattel was the object pursued- 
 
 In the period we are now discussing, the Writ of Debt speedily 
 lost its original character as an action to recover money lent 
 or bailed, and was applicable to any case in which the plaintiff 
 sought to recover a fixed sum of money, due to him on grounds 
 which the law considered to be adequate. Thus, for example, 
 if a tenant failed to pay his rent (though he had not expressly 
 covenanted to do so),- if a sheriff,^ or the Warjden of the Fleet,'* 
 allowed a debtor to escape, if a sum was found due from a debtor 
 on account stated,^ all these were liable to an Action of Debt. 
 In some cases, e.g. the case of rent, there had, no doubt, been 
 something very like a contract ; where the Action of Debt was 
 brought on a bond, we should consider it strictly contractual. 
 Still, the old rule of Glan^ille, that in an^Action for Debt the 
 
 King's Courts would not enforce a-xnere ' private agreement,' .. 
 
 held good throughout the whole history of the Action of Debt ; 
 and so that action can only be held to have contributed in 
 a very minor degree to the development of the Law of Con- 
 tract. Moreover, it rapidly became unpopular in this period, 
 owing to the fact that unless the plaintiff could show excep- 
 tionally good proof of his claim, e.g. a sealed charter, the 
 defendant could get off by ' waging his law.' It was, there- 
 fore, in spite of the provisions of the Statute of Westminster 
 the Second,^ very unsuitable for use against executors ; and in 
 fact, it could not be brought against them in cases in which their 
 testator, had he lived, would have been entitled to' wage his law.' 
 
 ^Ante pp. 56-58. 
 
 ^ 8 Anne (1709) c. 14, s. 4. (This statute merely extended the liability to tenant 
 for life. The tenant for years was liable at common law.)- 
 
 3 Statute of Westminster II (13 Edw. I, st. I (1285) c. 11). 
 
 ^ 1 Ric. II (1377) c. 12. (The sheriff or warden was liable for the sum owed by 
 the debtor.) 
 
 <• 5 Hen. IV (1403) c. 8. « Ante^'p. 64.
 
 134 A SHORT HISTORY OF ENGLISH LAW 
 
 The Action of Detinue, as we have said/ lay where a specific 
 
 chattel belonging to the plaintiff was in the hands of the defend- 
 
 ^ ^ ant, who refused to give it up. But it behoved the 
 
 Detinue ' . , . . , 
 
 plaintiff to be icautious m stating in what manner 
 
 he alleged the chattel to have come into the defendant's hands. 
 He had to be careful to avoid ' words of felony,' i.e. anything 
 that might sound like a charge of theft or robbery ; for, if he 
 did not, he laid himself open to being met by the argument 
 that his proper procedure was an ' appeal of larceny,' upon 
 which he was obliged to offer battle. So it appears to have 
 been the practice in the early Writs of Detinue for the plaintiff 
 to allege (what was, no doubt, in many cases, the strict truth), 
 that he had himself ' bailed ' or delivered the chattel to the 
 defendant in the first instance. Thus the form of action known 
 as ' Detinue sur bailment ' became the orthodox form ; and thus 
 Detinue appeared to be an action founded on contract.^ For 
 a voluntary delivery or bailment of a chattel, accepted by the 
 defendant, is something very like an agreement, from which 
 a promise to return the chattel can well be implied. Neverthe- 
 less, the promise is only implied ; and it is very doubtful whether, 
 to the mind of Glanville or Bracton, Detinue was really regarded 
 as a contractual action. In the middle of the fourteenth cen- 
 tury,^ the plaintiff was allowed to substitute for the allegation 
 of bailment the wider allegation that the goods ' came to the 
 hands' (devenerunt ad manus) of the defendant, without saying 
 how ; and thus the Action of Detinue lost whatever contract- 
 ual character it may once have had. How it acquired its 
 tortious character, we shall see later on. At any rate, there 
 was no possibility of a general theory of contract developing 
 out of the Action of Detinue. 
 
 A third possible source of contract at the beginning of the 
 period was the Action of Covenant, about which, unfortu- 
 nately, we know very little. We have seen* that 
 Glanville treats a deed or charter as one of the causae 
 or grounds of Debt ; and it is very significant that Debt and 
 
 1 Ante, p. 57. 
 
 ' This is the viow taken by the late Professor Ames, whose brilliant studies of 
 the history of Contract and Tort are reprinted in Select Essays in Anglo-Ameri- 
 can Legal History Vol. Ill, pp. 259-.319, 417-44.5. But the difficulties of trying 
 to build a theory of contract on bailment are well illustrated by the famous case 
 of Coggs v. Bernard (170.3) 2 Ld. llaym. 909. 
 
 3 Wagworth v. Halyday, Y.B. 29 Edw. Ill (1355), fo. 38b. * Ante, p. 66.
 
 CONTRACT AND TORT 135 
 
 not Covenant remained the proper form of action on a common 
 money bond until quite late in this period.^ This curious 
 fact may be accounted for by assuming (as we are warranted 
 in doing) that in early times the sealed bond was looked upon 
 rather as the symbol than as the ground of the debtor's liability ; 
 in other words, that the debtor was regarded as the object pledged, 
 or bound,^ the document being given as a security for his return 
 to captivity if he failed to pay the debt. Nevertheless, the 
 language of Glanville, that, if the defendant acknowledges the 
 genuineness of the charter, he is bound to warrant its terms, 
 and to observe the compact expressed in it, points to the fact 
 that, even in the twelfth century, the sealed charter was assum- 
 ing a wider form than the mere acknowledgment of a debt. 
 Indeed, we know independently' that at least two very impor- 
 tant transactions, viz. a lease for years and an agreement to 
 levy a Fine, were being made b\' deed before the end of the 
 thirteenth century. But both these were rather in the nature 
 of ' covenants real ' than personal contracts ; and the remedy for 
 breach of them seems to have been more in the nature of specific 
 performance than a money compensation.^ 
 
 Nevertheless, it is clear that, before the end of the fourteenth 
 century, the Writ of Covenant enabled an action to be brought 
 for * unliquidated damages ' on breach of any of the terms of a 
 sealed instrument. And this rule has prevailed to the present 
 day ; giving us our ' specialty ' or ' formal ' contract, which 
 includes any lawful promise made under seal. 
 
 By far the greater number of contracts entered into in ordi- 
 nary life are, however, not embodied in sealed documents. 
 Simple They are either contained in ordinary correspond- 
 
 Contracts ^^^^ ^j. j^qj.^ ^^-pitten memoranda, or they are made 
 solely by word of mouth or conduct. These are all now, by 
 English Law, termed ' simple ' or ' parol ' contracts ; and our 
 problem is, to discover how they obtained a foothold in the 
 common law, despite the attitude of the King's Courts so clearly 
 stated by Glanville. To do this, we must turn aside entirely 
 from the realm of Debt and Covenant, and enter what seems, 
 at first sight, a very unlikely quarter. 
 
 ^ Thus in 1584 (Anon. 3 Leon. 119) it was doubted if covenant lay on a specialty 
 promise to pay a fixed sum. 
 
 ^ The word points to the original physical bondage of the debtor. Early legal 
 liistory is full of such cases. 
 
 3 6 Ed. I (1278) c. 11 (1), ' recover by Writ of Covenant.'
 
 13G A SHORT HISTORY OF ENGLISH LAW 
 
 Apparently, the inventiveness of the Chancellor and judges 
 in the matter of making new writs had come to an end in the 
 latter half of the thirteenth century. At any rate, 
 ^^* there were complaints in Parliament of suitors being 
 
 turned away empty-handed because there was no writ to suit 
 their cases. Accordingly, the great Statute of Westminster 
 the Second ^ sought to provide a remedy by enacting, that .'when- 
 soever from henceforth it shall fortune in the Chancery, that 
 in one case a writ is found, and in like case falling uiicler like 
 law, and requiring like rehiedy, is found none, the Clerks of 
 the Chancery shall agree in making a writ ' (and, if they don't 
 there is to be an appeal to Parliament). 
 
 This enactment, though it appears only at the end of a chapter 
 on special cases, seems to have been taken as a general authority 
 for the expansion of legal remedies ; and under it were formed 
 many new writs on the analogy of the older writs found in the 
 Register. These new writs were all grouped together under the 
 name of ^ Case ' ; apparently from the words used in the Statute 
 of Westminster the Second — in consimili casu. Another feature 
 common to them all was, that each was framed on the model of a 
 specific older writ ; enlarging its scope by omitting one or more 
 of the technical requirements of the older document. 
 
 One of the first, if not the very first model made use of for this 
 purpose was the famous Writ of Trespass, which, as we have 
 Trespass on seen," had been introduced into the Register at the 
 the Case gj^j ^f ^}^g preceding period, and which speedily 
 became very popular. The gist of the Writ of Trespass was 
 an allegation that the defendant had, ' with force and arms,' 
 {vi et armis) and ' against the peace of our Lord the King ' 
 {contra yacem domini regis) interfered with the plaintiff's 
 possession of his body, Jand, or goods. No doubt at first the 
 ' force and arms ' were taken seriously ; but the writ speedily 
 came to cover every interference with possession, however 
 trifling and accidental. Nevertheless, the Courts held fast to 
 the technical point, that, to- amount to a trespass, there must 
 have been interference with the plaintiff's possession by some 
 voluntary act of the defendant, his servants, or his cattle. 
 
 It speedily came to be perceived, however, that there were 
 many circumstances in which the plaintiff had suffered serious 
 
 J 13 Edw. I, St. I (1275) c. 24 (2). ^ Ante, pp. 52-54.
 
 CONTRACT AND TORT 137 
 
 loss by the defendant's action, though the latter had not, tech- 
 nically, been guilty of trespass. Thus, in the middle of the 
 fourteenth century, a Huniber ferryman so overloaded his 
 boat, that the plaintiff's horse, which was on board, was drowned.^ 
 There was no trespass ; because the plaintiff had voluntarily 
 parted with the possession of his horse when he put him on the 
 defendant's boat. Similarly, when a smith lamed a horse 
 entrusted to him to be shod,^ or a leech so negligently did his 
 cure, that the horse died,^ or a surgeon mismanaged the plaintiff's 
 hand which he undertook to cure.^ In all these cases, though 
 there was no trespass, there was actual malfeasance or wrong- 
 doing in respect of a physical object by the defendant, from 
 which the plaintiff suffered loss; and so the analogous action 
 of ' Case,' or ' Trespass on the Case,' ^ was allowed. For some 
 time, the action was restricted to cases in which the defendant 
 pursued a ' common calling ' — i.e. that of a smith, or ferryman, 
 or surgeon, in which he was bound to attend all comers. But, 
 by the middle of the fifteenth century, for the general ' holding 
 out ' implied in the assumption of a common calling, the alter- 
 native of a 'special assumption,' or undertaking, might be 
 pleaded. One or the other was necessary.'' And so we find 
 the allegations : assumpsit super se, emprist sur lui, manucejnt, 
 and other forms, appearing in the Writs of Case. Now these 
 allegations do not, perhaps, necessarily imply promises ; but 
 they are very near it. Perhaps if we say that a man ' takes 
 upon himself ' to do a thing, we do not necessarily allege that 
 he promises to do it. But what if we say ' he undertakes ' to 
 do it? The difference is not great. Still, in Trespass on the 
 Case, the stress was laid on the physical damage, rather than on 
 the breach of undertaking. 
 
 Half a century after the full recognition of the Trespass 
 
 class of cases, we find another model followed, viz. the Writ of 
 
 Deceit on Deceit. The old Writ of Deceit was very techni- 
 
 ^^® cal ; it could, practically, only be used where the 
 
 defendant had been guilty of trickery in legal proceedings in the 
 
 1 Y.B. 22 Ass. (1348) 94, pi. 41. 
 * Y.B. 46 Edw. Ill (1372) fo. 19, pi. 19. 
 ^Y.B. 43 Edw. Ill (1369) fo. 33, pl.38. 
 <Y.B. 48 Edw. Ill (1374) fo. 6, pi. 11. 
 
 ' The proper title is: 'Action on the Case in the Nature of Trespass.' But the 
 form in the text is the more usual. 
 
 « Y.B. 19 Hen. VI (1441) fo. 49, pi. 5, per Paston, J.
 
 138 A SHORT HISTORY OF ENGLISH LAW 
 
 King's Courts.^ But, before the end of the first half of the 
 fifteenth century, we get two cases, at least, in which the plain- 
 tiff was allowed to recover, because, although there had been 
 no physical damage to the plaintiff or his goods, he had suffered 
 loss by the deliberate fraud of the defendant in breaking his 
 undertaking. In Somertons Case, three times reported,- and 
 so, presumably, regarded as of great interest, the defendant 
 had been employed by the plaintiff to buy a manor, and had 
 ■persuaded some one else to buy it over the plaintiff's head. In 
 •a slightly later case,^ the defendant had agreed to sell the plain- 
 •tiflf a manor, and subsequently enfeoffed a third person. In 
 •each case the plaintiff suffered damage, though not of a physical 
 kind. The second case is called a ' Bill of Deceit ' ; but, as 
 it was brought in the King's Bench, this probably only meant 
 that the fiction of the marshal's custody was employed.^ Any 
 .w^ay, these two cases bring us a step nearer to a law^ of contract. 
 
 ■ We may call them the Deceit or misfeasance cases. 
 
 • Lastly, we come to the non-feasance group. Here the sole 
 , ground of alleged liability is the failure to fulfil a promise ; and, 
 -Non- when this group is established, we have clearly a 
 feasance jg^^, q£ simple contract. Unfortunately, at this stage, 
 "another and more obscure question arises. . 
 
 So early as the year 1424, we find a case which looks very 
 much like one of mere non-feasance. It was an action against a 
 mill-maker for failing to build a mill according to his promise.^ 
 The action seems to have been allowed, with some hesitation. 
 Professor Ames strongly urges that this and a slightly later 
 
 • case to the same effect ^ were premature freaks, due to the idiosyn- 
 
 ■ crasy of a particular judge, and that it is not till the very end 
 of the sixteenth century, that we get a definite legal recognition 
 
 , of the truth that a man may be just as much harmed by his 
 . neighbour's mere non-fulfilment of his promise, as by his active 
 fraud or deceit.^ But by this time it had been perceived, that 
 •to allow an action to be brought for the non-fulfilment of any 
 . promise would be to open the door too wide ; and accordingly we 
 
 • Fitzhorbert, Natura Brevium, 95 E. 
 
 « Y.B. 11 Hen. VI (1433) fo. 18, pi. 10; fo. 24. pi. 1 ; fo. 55, pi. 26. 
 
 3 Y.B. 20 Hen. VI (1442) fo. 34, pi. 4. * Post, p. 171. 
 
 ' Y.B. 3 Hon. VI (1424) fo. 36, pi. 33. 
 
 «Y.B. 14 Hen. VI (1435) fo. 18. pi. 58. 
 
 ' Select Essays in Anglo-American Legal History, III, 270.
 
 CONTRACT AND TORT 139 
 
 find, that only those promises_were actionable which had been 
 given in return for some recompense recei\ed b}' the promisor, 
 or some detriment suffered by the promisee. 
 
 This is the famous doctrine of ' consideration,' without 
 which no simple contract is valid. How it exactly arose, we do 
 Considera- "ot know. The writer suggests that it is a com- 
 ^^°°^ pound doctrine, of which the positive side (recompense 
 
 or benefit to the promisor) is a reflection from the original 
 character of the older action of Debt, while the negative side 
 (detriment to the promisee) is merely a slight ante-dating of 
 the damage which was necessary to support an action of ' Case .' The 
 action of Debt, as we have seen, was, originally, an action 
 to recover something of the plaintiff's which had been bailed 
 to the defendant (quid pro quo) . Strictly speaking, the damage to 
 the plaintiff' should have been that which he suffered by breach 
 of the defendant's promise ; but it is not difficult to see how this 
 requirement could be changed into damage suffered in exchange 
 for the promise. ^Yhateve^ be the explanation, the doctrine 
 itself was clearly known by the beginning of the sixteenth cen- 
 tury ; for it was made the basis of an elaborate discussion in the 
 Dialogues between a Doctor of Divinity and a Student of the Laws 
 of England, published in 1523, and attributed to St. Germain. 
 The parties are debating the respective merits of the Canon and 
 English Laws ; and they come into sharp conflict over the theory 
 of the simple contract. The Doctor wishes to make the enforce- 
 ability of a contract depend on the occasion on which it was 
 made, and the intention of the promisor.^ This is the old doc- 
 trine of causae, with a new touch of casuistry added. The Stu- 
 dent maintains the doctrine of English Law; though, oddly 
 enough, he does not, in that place, employ the word 'considera- 
 tion.' Ex nudo pacto nan oritur actio, he alleges, with a trium- 
 phant quotation from the Institutes ; but then he goes on to 
 explain, that a ' nude contract ' is one made without any ' rec- 
 ompence ' appointed for it — an explanation which would 
 have sounded strange to a Roman lawyer. It is the Doctor 
 who uses the word 'consideration' in the chapter; and, with 
 him, it obviously means merely 'motive' or 'object,' in which 
 sense it is also adopted by the Student in another passage,^ 
 when he says that the 'consideration' of the Statute of Fines 
 
 1 Dialogues, II, cap. 25. ' Dialogues, I, cap. 26.
 
 140 A SHORT HISTORY OF ENGLISH LAW 
 
 was to ensure the certainty of titles. But the word had become 
 appropriate to the new doctrine by the middle of the sixteenth 
 century, and appears in the Reports shortly afterwards.^ By 
 that time, it was admitted that the consideration to support a 
 simple promise might itself be a promise ; - and so the purehy 
 executory contract became a recognized institution. After 
 that, it was not difficult to clear away the surviving vestiges of 
 its origin, and allow it to appear as a substantive and distinct 
 institution. In 1520,^ the Court had allowed Assumpsit to be 
 brought against executors, in spite of the fact that it was tlien, 
 in form, clearly an action of Tort ; but this decision had been 
 scoffed at by Fitzherbert.^ In 1557,^ however, and again in 
 1611,^ the Court allowed Assumpsit against executors, and thus 
 removed a substantial grievance ; for, as has been pointed out, 
 Debt could not be maintained against them where the deceased 
 could have 'waged his law.' Finally, it was resolved, 'm_Slade's 
 Case,'' that 'every contract executor^' imports in itself an 
 a ssump sit ' ; and thus the necessity of suing in Debt,^ which 
 let m the 'wager of law,' was abolished, practically in all cases. 
 This case gave rise to the well-known sub-division of contractual 
 actions into indebitatus assumpsit (where the defendant was really 
 liable apart from express promise, e.g. for rent), and social 
 assumpsit, where the promise was the true cause of action. 
 Thus freed entirely from its early restrictions, the Action of 
 Assumpsit took its place in the legal armoury as the typical 
 action of contract ; though, as we have seen, it was, historically, 
 an action founded on a tort. Thus it became possible, also, 
 to classify personal actions into actions of Contract and actions 
 of Tort. 
 
 It must not be supposed, however, that the Action of Case 
 had exhausted its possibilities when it had given birth to Assump- 
 sit ; for, though, for a long time, the action founded on Deceit 
 
 1 Jocelyn v. Skelton (1558) Benloe, 57 ; Gill v. Harewood (1587) 1 Leon. 61. 
 
 * Peske V. Redman (1555) Dyer, 113. The point was discussed in Wichals v. Johns 
 (1599) Cro. Eliz. 703. 
 
 ^Cleymond v. Vincent, Y.B. 12 Hen. VIII, fo. 11, pi. 3. 
 
 <Y.B. 27 Hen. VIII (15.35) fo. 23, pi. 21. 
 
 ' Norwood V. Read, Plowd. 180. 
 
 « Pinchon's Case, 9 Rep. 86b. ' (1603) 4 Rep. 92b. 
 
 * This necessity was not merely due to the absence of an express promise, but 
 also to the old theory that a man who had a 'higher' remedy, might not resort to a 
 lower.
 
 CONTRACT AND TORT 141 
 
 lingered on only as a special and peculiar remedy for breach 
 of warranty/ we soon find a new and highly popular form of 
 Case in the variety known as trover. 
 
 As we have seen, the Action of Detinue had jts drawbacks ; 
 for, though it was no longer restricted to the case of the bailee, 
 it was obviously jinsuitable when the defendant, though willing 
 to give up the chattel, liad wilfully or carelessly damaged it, or 
 where he had parted witli tlie possession of it. True, Trespass 
 might have come in here, if the original taking had been unlawful ; 
 but, if the plaintiff had, in fact, parted voluntarily, or, perhaps, 
 unconsciously, with his chattel. Trespass, which implies at least 
 some degree of violence, was unsuitable. JMoreover, Trespass 
 itself was risky ; for the unsuccessful party was, at least in theory, 
 liable to pay a fine to the King. Again, Detinue suffered from 
 the drawback of being open to the antiquated ' wager of law.' 
 
 Accordingly, we are not surprised to find that, before the end 
 
 of the fifteenth century,- the Court considered that the Action 
 
 of Case might well be held to cover a bailee who 
 
 Trover . . 
 
 had wilfully misused the chattel bailed to him ; 
 and that, a few years later ,^ the new action was stretched to 
 cover a case in which he had sold it. The former case was 
 very like Trespass ; the latter, luckily for the defendant, just 
 escaped being larceny. By Coke's time,^ the pleaders had 
 agreed upon a form which alleged that the plaintiff* ' casually 
 lost the chattel from his hands and possession^ and afterwards 
 ... it came to the hands and possession of the defendant by 
 finding {trojierX, w'ho nevertheless put and converted it to his 
 ownjise,' This form anticipated and guarded against two ob- 
 jections by the defendant, viz. (i) ' I did not take it ' (Tres- 
 pass), and (ii) 'I have not got it' (Detinue). But, later on, 
 these fine distinctions were ignored ; and, in 3LG2.Z,JjXLYer_was 
 allowed as a substitute for Trespass,^ where the defendant took 
 the chattel in the presence of the plaintiff, and, in 1674, for 
 Detinue,*" where there was a mere demand and refusal. Before 
 this time, moreover. Detinue had been held to cover cases in 
 
 1 Stuart V. Wilkins (1778) 1 Doug. 18. 
 
 2 Y.B. 18 Edw. IV (1479) fo. 23, pi. 5. 
 
 3 (1510) Keil. 160, pi. 2. 
 
 * Entries, 37d, 40c, 41d, &c. 
 
 ^ Kynaston v. Moore, Cro. Car. 89. 
 
 ^Sykes v. Walls, 3 Keb. 382 (3).
 
 142 A SHORT HISTORY OF ENGLISH LAW 
 
 which there had been no bailment. This was regarded as a 
 novelty in 1455;^ but by 1510 Detinue sur trover had^jtaken 
 its place as common form alongside Detinue sur bailment.^ 
 Thus the three forms of action largely overlapped, as alternative 
 actions of Tort; though there were still cases which could only 
 be brought under one of them. Their later history may be 
 quickly disposed of. In 1833,^ the abolition of ' wager of law ' 
 caused a revival of Detinue, which was fostered by a judicious 
 alternation of the rules of pleading in the action. In 1852, the 
 Common Law Procedure Act ^ rendered allegations of bailment 
 and finding unnecessary, whilst they had long been ' untrav- 
 ersable — i.e. undeniable ; and thus the essence of the action of 
 Trover, viz. the conversion to the use of the defendant, became 
 more clear, and the na me con version is now more common tlian 
 Trover, whilst the action, in spite of some difficulties, tends more 
 and more to be regarded as one of Tort. Of course, the necessity 
 for choosing a special form of action has long since disappeared. 
 
 Independently of the desire to protect chattels, many new 
 forms of Tort made their appearance during this period, and 
 have survived to the present day. Various causes are to be 
 assigned for their introduction, among which the most promi- 
 nent are : (i) the necessity for abolishing some of the technical 
 restrictions of the older writs ; (ii) the absorption of other juris- 
 dictions by the King's Courts ; and (iii) the passing of legislation 
 intended to meet the exigencies of special occasions. Of these 
 in their order. 
 
 The new forms of Tort which came into existence as varieties 
 of the action of Case, because the older writs dealing with similar 
 Malicious offences were unavailable, were, notably, INIalicious 
 Prosecution Prosecution and Nuisance. Malicious Prosecution 
 was an adaptation of the old Writ of Conspiracy, which was itself 
 based on a statute and ordinance of the years 1300 and 1305 
 respectively.^ These enactments, however, only applied to 
 cases where ' two, three, or more persons of malice and covin do 
 conspire and devise to indict any person falsely, and afterwards 
 he who is so indicted is acquitted.' The old writ was, conse- 
 quently, confined to such cases ; and subsequent judicial rulings 
 
 lY.B. 33 Hen. VI, fo. 26, pi. 12. 
 
 ^ Liber Jntralionum (cd. 1546) fo. Ixxxiv (B). 
 
 'Civil Procedure Act, 1833, s. 13. ♦ S. 49. 
 
 '28 Edw. I, St. Ill, c. 10; 33 Edw. I, st. II.
 
 CONTRACT AND TORT 143 
 
 seem to have restricted it still further, to cases of false indict- 
 ments for treason or felony, whereby the accused's life was en- 
 dangered.^ Obviously, there were many other cases in which 
 oppression could be used, not merely by a group of persons acting 
 together, but even by a single unscrupulous person, through the 
 medium of baseless prosecutions. And so, after the Church 
 Courts had tried to acquire jurisdiction in such cases through 
 proceedings for defamation,- we find in the King's Courts, by the 
 end of the fifteenth century,^ an action of Case in the Nature of 
 Conspiracy, which applied against single individuals and on 
 false indictments for mere misdemeanours. This new form of 
 action gradually acquired the name of Malicious Prosecution,^ 
 and was further extended to cover the malicious procuring of 
 search warrants against the plaintiff.^ It should be observed, 
 however, that, unlike strict Conspiracy, the gist of _ the action 
 of Malicious Prosecution is damage to the plaintiff, not the 
 mere conspiring of the defendants ; though, if a false and mali- 
 cious prosecution is brought, damage to the party prosecuted 
 will be presumed. Apparently, though the closely related 
 Writ of Champerty (against persons buying shares in lawsuits 
 with a view of aiding in carrying them on) retained the form 
 given to it by statute,^ the Action of Maintenance (against per- 
 sons taking part in lawsuits in which they had no interest) 
 was also a typical example of Case ; being an enlargement of the 
 narrower statutory remedy against royal officials.^ 
 
 Equally clear is the widely popular Action of Nuisance, 
 devised to protect immovable rights of all kinds from physical 
 „ . disturbance. There was an old Assise of Nuisance ; 
 
 but this, as a real action, could only be used by and 
 against freeholders, while the action of Case framed upon the 
 analogy of it was open to all persons having an interest in posses- 
 
 1 Skinner v. Gunton (1669) 1 Wms. Saund. 228. 
 
 « 1 Edw. Ill (1327) c. 11. 
 
 3Y.B. 11 Hen. VII (1496) fo. 25 pi. 7. 
 
 * The transition appears clearly in the leading case of Savile v. Roberts (1698) 
 1 Salk. 13. 
 
 6 Windham v. Clere (1589) Cro. Eliz. 130. 
 
 * 33 Edw. I (1305) st. Ill, cap. 2. Champerty had been made a criminal offence 
 by 3 Edw. I (1275), c. 25; 13 Edw. I, st. I (1285) c. 49; 28 Edw. I, st. Ill (1300) 
 c. 11. 
 
 ' 33 Edw. I (1305), cc. 28, 33. (The latter statute also made Maintenance a 
 criminal offence.) The form of the writ is not, apparently, given in Fitzherbert's 
 Natura Brevium.
 
 144 A SHORT HISTORY OF ENGLISH LAW 
 
 sion, against all persons causing a physical injury to their land. 
 A curious and not altogether commendable survival of the 
 right of self-help marks the transition. Under the old Assise 
 of Nuisance, and the still older Writ of Quod Permittat, the 
 successful plaintiff was entitled to have the nuisance ' abated,' 
 or. taken away by the sheriff and the power of the county.^ 
 The judgment in the action of Case in the Nature of Nuisance 
 was merely for damages ; but the complainant was, apparently, 
 permitted to abate the nuisance himself, and the right survives 
 to the present day, though the exercise of it has been largely 
 superseded by the issue of mandatory injunctions.- 
 
 The second group of new torts produced in this period was 
 that which sprang from the absorption by the King's Courts of 
 other jurisdictions. Of this group by far the best example is 
 Defamation. 
 
 As is well known. Defamation is of two kinds, viz. li beLC syjiere 
 the defamatory publication is printed or written, or is contained 
 Defamation ^^ pictures or other permanent record), and sland.er, 
 where the defamation is by spoken words only. 
 There are many legal differences between the two. For instance, 
 libel may be punished both criminally and civilly ; and, even 
 in the civil action, no special damage need be alleged, while, in 
 the criminal proceedings, it need not always be proved that the 
 defamatory matter was published to a third person. On the 
 other hand, slander, except in certain cases, is not actionable 
 unless special damage is shown ; and it is never punishable 
 criminally. Moreover, the period for bringing an action of 
 Slander, where the words are ' actionable ;p.er se,' is limited to two 
 years after the commission of the oft'ence ; while libel and ordinary 
 slander can be pursued, even civilly, at any time within six 
 years after the commission of the offence, or, in the case of slander, 
 after the occurrence of the damage. 
 
 It is natural to surmise, that such differences of character 
 proceed from differences of historical origin ; and we find, as a 
 fact, that slander and libel, as legal offences, have had different 
 sources. 
 
 It seems clear that cases of oral slander were, in early times, 
 
 ' Blackstone, Comm. Ill, 222. The forms of the Assise and the Quod Permittat 
 are given in Fitzherbert, op. cit., 183, K; 124 H. See remarks of Cresswell, J., 
 in Battishill v. Reed (1856) 18 C.B., at p. 715. , 
 
 ^ Lane v. Capscy [1891] 3 Ch. 411.
 
 ' CONTRACT AND TORT 145 
 
 matter for the local moots. In the records of feudal courts 
 recently published by the Selden Society/ we find 
 precedents and forms in slander going back to the 
 thirteenth century ; and it can hardly be doubted that this branch 
 of feudal jurisdiction resulted from the absorption of the popular 
 authority of the leet court of the Hundred. In the cases given 
 in the publications referred to, the charges of slander are fre- 
 quently supplementary to charges of trespass and other offences 
 against good order ; ^ but there seems little reason to doubt that 
 slander alone, at any rate if damage followed, was a generally 
 recognized cause of action,^ though, probably, in such matters, 
 each court had its own rules. 
 
 With the decay of the feudal courts, previously referred to,^ 
 the jurisdiction in slander appears to have passed, not at first 
 to the King's Courts, but to the Courts of the Church. A clause 
 of the statute of 1315,^ commonly known as Articuli Cleri, 
 fully recognizes the authority of the bishop in defamation ; and 
 we find the King's Bench, in the year 1498,^ declaring that 
 actions for slander are matter for the spiritual tribunals. It is 
 not until after the crucial years of the Reformation, viz. in the 
 year 1536,^ that we find an action of slander reported in the 
 King's Courts;* and, as is well known, the jurisdiction of 
 the ecclesiastical tribunals in defamation lingered on, though 
 with diminished vigour, until 1855.^ From the middle of the 
 sixteenth century, however, it is clear that the action of Case for 
 spoken words becomes increasingly frequent in the King's 
 Courts ; and, in the year 1647, a special text-book on the subject 
 was published by John March, the reporter, and attained con- 
 siderable favour. Before the end of our present period, the 
 action of Slander had virtually assumed its modern form. In 
 this example, as elsewhere, it may well be, that the action 
 of Case was framed on an older model ; and we think, naturally, 
 
 1 Select Pleas in Manorial . . . Courts (Maitland) S.S. Vol. 2 ; The Court 
 Baron (Maitland and Baildon), S.S. Vol. 4. The former volume is a record of 
 actual cases ; the latter a collection of court forms. 
 
 2 Court Baron, 28, 30, &c. (The language is picturesque.) 
 
 3 Ibid., 40, 48 ; Manorial Courts, 19, 36, 82, &c. * Ante, pp. 71-73. 
 6 9 Edw. II, St. I, c. 4. 6 Y.B. 12 Hen. VII, fo. 22, pi. 2. 
 
 ^ Anon. Dyer, 19a. 
 
 ^ There was, however, a disposition earlier to check excess of ecclesiastical 
 jurisdiction, e.g. where the Church courts entertained actions for defamation against 
 preferrers of indictments (1 Edw. Ill (1327) c. 11). 
 
 ' Ecclesiastical Courts Acts (18 &19 Vic. c. 41).
 
 146 A SHORT HISTORY OF ENGLISH LAW 
 
 in this connection, of the statutory offence of Scandalum Magna- 
 tum, which appears in the Statute Book on several occasions, 
 from 1275 to 1558.^ But, if we look at these statutes, we 
 shall find that they are of a purely criminal character; and it 
 is not easy to see how any writ of Case could be framed upon 
 them. 
 
 Very different was the history of libel. Probably, in the days 
 before the invention of printing, there were not many oppor- 
 tunities of committing this offence ; though there 
 seems little reason to doubt that the ecclesiastical 
 courts, even then, entertained suits for written defamation. 
 But the appearance of the printing press, as has been pointed out 
 in another connection, brought the subject into prominence ; 
 and the Court of Star Chamber, though it declined to trouble 
 itself about slander,- soon became an active centre of criminal 
 prosecutions for libel. Apparently, however, the jurisdiction 
 of the Star Chamber did not exclude the more open jurisdiction 
 of the King's Bench ; for, in the well-known Case of Scandalous 
 Libels,^ which came before the former tribunal in the year 1605, 
 it was resolved, that ' a libeller shall be punished either by 
 indictment at the common law, or by bill, if he deny it, or ore 
 tenus on his confession, in the Star Chamber.' The strongly 
 criminal character of the proceedings in libel at that time is 
 also emphasized by the ruling, that the truth of the libel is 
 no justification for its issue ; while a slightly later case in the 
 Star Chamber ^ added the well-known distinction^^ between 
 criminal and civil libel, viz. that the former may be committed 
 without publication to a third party. 
 
 It appears, however, that the Star Chamber itself, at any 
 rate in its later years, adopted the practice of awarding damages 
 to the party injured by a libel, as well as punishment for the 
 criminal offence; ^ and this practice naturally led to the growth 
 of the idea that libel might be treated also as a civil offence. 
 References to a possible action of Case for libel appear in the 
 
 >3 Edw. 1 (1275) c. 34; 2 Ric. II, st. I (1378) c. 5 ; 12 Ric. II (1388) c. 11; 
 1 & 2 Ph. & M. (1554) c. 3; 1 Eliz. (1558) c. 6. 
 
 ' Select Cases . . . in the Star Chamber (SS. vol. 16) 28-45. 
 
 ' 5 Rep. 124b. 
 
 ■• Edwardcs v. Wootton (1007) reported in Hawardc's Cases in the Star Chamber, 
 ed. by Baildon, and privately printed, 343-344. 
 
 ^ Edwardes v. Wootton, ubi sup.; and Lake's Case (1619), reported in Calendar 
 oj State Papers (Dom.) Ill, 19, 21.
 
 CONTRACT AND TORT 147 
 
 Reports from the beginning of the seventeenth century ; ^ and, 
 on the aboHtion of the Court of Star Chamber by the Long 
 Parhament in 1G41, civil actions for Hbel begin, though far 
 more slowly than might have been expected, to be reported.^ A 
 marked survival of the criminal origin of libel is to be found 
 in the rule that, to succeed, even in a civil action, no actual 
 damage need be proved ; though the action is, historically, one 
 of Case. 
 
 Finally, more than one new tort was created by express statute 
 statutory during the period at present under review. Of these, 
 Torts some were of little permanent importance ; such as 
 
 the offences created by the statute of 1400,^ which gave a defend- 
 ant wrongfully sued in the Admiralty Court an action against 
 his adversary, and another of the year ISSl,"^ which gave a 
 similar remedy to a person aggrieved by the irregularity of an 
 ecclesiastical official. But the offences created by the series of 
 Labour statutes and ordinances ^ which followed on the occurrence 
 of the Black Death and the Peasants' Revolt, have left a per- 
 manent mark oji our law. It was part of the policy of that code 
 to compel all persons under a certain rank to serve any one who 
 was willing to employ them, at the statutory rate of wages ; 
 and severe penalties were imposed upon a servant who refused 
 to serve or departed from his service. Naturally, the Courts 
 regarded any attempt to seduce a servant from his employment 
 as violating the spirit of the Acts ; and, accordingly, the action 
 of Case for the_ seduction or harbouring of a servant made its 
 way into-Jthe books. The form of the writ is given by Fitz- 
 herbert,^ who expressly bases it on the statute of 1349, and says 
 that it lies against both enticer and servant. By a well-meaning, 
 but rather clumsy analogy, this action was, later on, extended to 
 cover the case of debauching a woman ; but the many anomalies 
 of that form of action show how ill-fitted is the machinery to 
 achieve its object. The Statutes of Labourers, and their amend- 
 ment in the reign of Elizabeth, ultimately gave birth to another 
 important branch of the Law of Tort, viz. the actions for procur- 
 
 ^ Barrow v. Lewellin (1616) Hob. 62; Lake v. Hatton (1618) ibid., 252; Hicks' 
 Case (1619) ibid., 215. 
 
 2 One of the earliest is Lake v. King (1668) 1 Wms. Saund. 131, b, on Parlia- 
 mentary privilege. 
 
 3 2 Hen. IV, c. 11. ^23 Hen. VIII, c. 9, s. 3. 
 
 ' 23 Edw. Ill (1349) ; 25 Edw. Ill, st. II (1351) ; 34 Edw. Ill (1360) cc. 9-11. 
 « Natura Brevium, 167-168.
 
 148 A SHORT HISTORY OF ENGLISH LAW 
 
 ing breach of contract, and civil conspiracy. But this develop- 
 ment belongs to a later period. It is not diflficult to see how a 
 social upheaval such as that of the late fourteenth century, 
 which virtually abolished serfdom and profoundly affected the 
 policy of the State, would naturally be reflected in a legal system 
 which was, above all things, a mirror of the ideas of the ruling 
 classes.
 
 CHAPTER XI 
 CRIMINAL LAW AND PROCEDURE 
 
 THERE is not much to be said about the substantive Law 
 of Crime in this period. The Law of Treason was codi- 
 fied in the year 1352 by the great Statute of Treasons/ 
 which is still the foundation of the law on the subject ; for, 
 though a good many new treasons were introduced in the reign 
 of Henry VIII, they were, together with most of the new felonies 
 created by the Reformation statutes, swept away on the accession 
 of his son.- The progress of the nation in wealth and refinement, 
 however, naturally brought with it an increase in the number of 
 crimes, as the old definition of offences became inadequate. 
 . Among the new crimes may be mentioned that of 
 maiming by cutting out the eyes or tongue, made a 
 felony by a statute of 1403,^ the unauthorized multiplication of 
 gold and silver, by the same statute,"* the recognition of embezzle- 
 ment and obtaining goods by false pretences as but variations 
 of the ancient crime of theft, ^ unnatural offences,^ forgery,^ 
 and bigamy (in the modern sense) .^ Witchcraft with evil 
 intent was made felony by statute in 1541 ; ^ and this statutory 
 recognition of one of the very oldest of social offences looks some- 
 what reactionary. It may well be, however, that a regular prose- 
 cution before the King's judges rescued many a wretched outcast 
 from the terrors of Lynch law. 
 
 The really important changes in criminal justice during this 
 
 1 25 Edw. Ill, St. V. c. 2. 
 
 ^ 1 Edw. VI (1547) c. 12, s. 2. (It must be admitted, however, that even this 
 statute, in its later sections, introduced or continued one or two newfangled treasons, 
 and was followed by the 23 Eliz. (1581) c. 1.) 
 
 3 5 Hen. IV, cc. 4, 5. * Ihid. 
 
 6 21 Hen. VIII (1529) c. 7; 33 Hen. VIII (1541) c. 1. But obtaining goods 
 by false pretences was not made felony ; and embezzlement was not felonious unless 
 it amounted to fortv shillings. 
 
 « 25 Hen. VIII (1533) c. 3. 
 
 ' 5 Eliz. (1562) c. 14, s. 8 (felony on second offence ; but no corruption of blood). 
 
 « 1 Jac. I (1604) c. 11. 
 
 s 33 Hen. VIII, c. 8; succeeded by 5 Eliz. (1562) c. 16; 1 Jac. I (1603) c. 12,
 
 150 A SHORT HISTORY OF ENGLISH LAW 
 
 period are, however, not the new crimes introduced by statute, 
 but the alterations in classification and procedure brought 
 about by the growth in importance of the jurisdiction of the 
 Justices of the Peace, and the virtual abolitions of ' appeals ' 
 and clerical privileges. 
 
 All students of English Constitutional History will be aware, 
 that, after a tentative introduction as * Conservators ' at the 
 end of the thirteenth century, the Justices of the Peace were 
 definitely accepted and organized as part of the nor- 
 the^Peict ™^' scheme of government in the fourteenth. The great 
 statute of 1360 ^ recognizes that dual character of the 
 Justices' office with which we are now familiar — the magisterial 
 and the judicial. The Justices are to have power to ' restrain ' 
 offenders, rioters, and other barrators ; they are to make enquiries 
 and arrest and imprison all suspicious persons ; these, and the 
 numerous duties imposed upon them by the Statutes of Labour- 
 ers, previously alluded to, belong to them as magistrates or 
 keepers of the peace. But, in their judicial capacity, they 
 may ' hear and determine at the King's suit all manner of felonies 
 and trespasses done in the same county.' A slightly earlier 
 statute^ had already established the General or Quarter Sessions 
 of the Justices as a regular institution. A statute of 1483^ con- 
 ferred upon the Justices the important power of granting bail ; 
 and, though this power was somewhat restricted by a later 
 statute,^ yet the last Act, and its amendment ^ in the following 
 year, by directing the Justices to examine the accused and 
 transmit the information of his accusers to the next gaol-delivery, 
 really regularized and strengthened the magisterial side of the 
 Justices' powers. Two books dealing with the jurisdiction of the 
 Justices of the Peace were published in this period, and point 
 to a growth of interest in the subject. These are L'Ofice et 
 Audhorite de Justices de Peace, a posthumous work attributed 
 to Sir Anthony Fitzherbert, and published with ' enlargements ' 
 by Crompton in 1583,^ and Eirenarcha, or the Office of the Justices 
 of the Peace, by William Lambard, published in 1619 ; and they 
 are of great value for a study of criminal procedure during this 
 period. 
 
 ' 34 Edw. Ill, c. 1. '25 Edw. Ill, st. II (1351) c. 7. M Rio. Ill, c. 3. 
 
 < 1 & 2 Ph. & M. (1554) c. 13. »2 & 3 Ph. & M. (LVw) c 10. 
 
 ' There is said to be an earlier edition extant; but the author lias not seen a 
 copy of it.
 
 CRIMINAL LAW AND PROCEDURE 151 
 
 The first thing that we note from them is, that an important 
 distinction is growing up between those crimes which are punish- 
 . able with deatli, forfeiture of goods and lands, and 
 
 and corruption of blood, and a newer class of offences, 
 
 respasses j;j-^Qg^}y statutory, for which are prescribed merely fine 
 and imprisonment. It is possible, by a reference to the valuable 
 collection of indictments given as a supplement to Fitzherbert's 
 book, to form a tolerably accurate idea of how this classification 
 stood when his work was published, i.e. it must be remembered, 
 not in the author's lifetime, but in 1583.^ According to these 
 forms, the classification of crimes in the last quarter of the six- 
 teenth century would be somewhat as follows : — 
 
 Treasons and Felonies 
 
 High Treason 
 
 Rebellion 
 
 Counterfeiting Letters Patent 
 
 False Coining 
 
 Clipping of gold coin 
 
 Murder 
 
 Homicide 
 
 Arson 
 
 Bm-glary 
 
 Larceny above 12 pence 
 
 Purse-cutting 
 
 Rape 
 
 Unnatural Crime 
 
 Conniving at escape of felon 
 
 Witchcraft resulting in death 
 
 Maiming 
 
 Suicide 
 
 Trespasses ('Misdemeanors') 
 
 'proditorie' 
 
 'felonice et 
 proditorie ' 
 
 'felonice' 
 
 Breach of safe conduct 
 
 Extortion 
 
 Forcible entry 
 
 Riot 
 
 Assaults of various kinds 
 
 Brawling in certain places 
 
 Unlawful hunting 
 
 Not following hue and cry 
 
 Barratry {i.e. stirring up of 
 
 strife) 
 Nuisance 
 
 Forgery ( ? 1st offence) 
 Religious offences 
 Seandalum Magnatum 
 Shooting in prohibited places 
 Stealing heiresses 
 Perjury 
 Rescue 
 Maintenance 
 Embracery 
 Offences against Statute of 
 
 Liveries 
 Conspiracy 
 
 It will be seen at once, by a glance at the above lists, that 
 there had been very little disposition to extend the class of 
 capital offences, or felonies, since the days of the Assise of 
 Northampton ; ^ only three or four really new felonies had been 
 added, for the statutory felony of cutting out eyes or tongue, for 
 which the form of indictment is given, is really only a statutory 
 definition of the old offence of ' mayhem,' (which was certainly 
 
 1 This is quite clear from the dates used in the forms, e.g. ' anno regni Reg. 
 Eliz. XV,' in the indictment for forcible entry (fo. 183b). 
 
 2 Ante, p. 41 .
 
 152 A SHORT HISTORY OF ENGLISH LAW 
 
 felonious, because an 'appeal' lay for it), while suicide is, of 
 
 course, only a variety of homicide. The minor offences, usually 
 
 described in the statutes of the period as ' trespasses,' but just 
 
 beginning to be known also as 'misdemeanors,'^ were nearly all 
 
 statutory ; though, again, failure to follow the ' hue and cry ' is 
 
 a very ancient offence, which was merely defined and strengthened 
 
 by statute. 
 
 But another point should not escape attention. All the 
 
 offences above enumerated were indictable, i.e. could only be 
 
 prosecuted by accusation of the grand iury and 
 Indictments ^ . i . i xx • t\ ■ +U- • ^ 
 
 conviction by the petty jury. During this period, 
 
 the widest interpretation was evidently put upon the section of 
 
 the statute of 1360,^ which empowered the Justices of the Peace 
 
 to hear and determine felonies ; and, if we may judge by the 
 
 attitude of Fitzherbert's editor, there was no limit to the exercise 
 
 of this jurisdiction. Apparently the most serious felonies, even 
 
 High Treason itself,^ could be tried at Quarter Sessions, no less 
 
 than before the itinerant Justices of the Benches. It must not 
 
 be supposed, however, that the authority of the Justice of the 
 
 Peace was confined to his work in sessions. At the close of the 
 
 second Book of Lambard's Eirenarcha will be found a formidable 
 
 list of things 'which one Justice of the Peace may doe out of 
 
 the Sessions' ; and from this we learn that, not merely what we 
 
 should consider strictly magisterial acts, such as taking sureties 
 
 for good behaviour, arresting and committing to prison, and 
 
 searching for stolen goods, but acts of at least a quasi-judicial 
 
 character, could be performed by the Justice in the privacy of 
 
 his own hall. Thus, he could decide controversies between 
 
 masters and servants,^ hear and determine offences against the 
 
 Ordinance relating to Tile-Making,^ punish offences against the 
 
 Assize of Fuel,^ hear disputes under the Statute of Watermen,^ 
 
 examine for breaches of the statute against illegal shooting,* 
 
 and try and punish hedge-breakers and robbers of orchards and 
 
 1 There is a title of ' Misdemeanors' in the index to Fitzherbert's book, or, rather 
 the edition of Crompton. But the reference to the text cannot be traced. 
 *34 Edw. Ill, c. 1 (7). 
 
 'Lanibard, Bk. II. cap. 7 (p. 226) seems to be a little doubtful on this point. 
 *Lanibard, 190. (The authority was the Statute of Labourers.) 
 *Ihid., 193-104. (The Ordinance is 17 Edw. IV. (1477) c. 4). 
 ^IhicL, H»G-197 (7 Edw. VI (1553) c. 7). 
 ^Ibid., 203 (2 & 3 Ph. & M. (1555) c. 16). 
 ^Ibid., 296 (33 Hen. VIII. (1541) c. 6).
 
 CRIMINAL LAW AND PROCEDURE 153 
 
 gardens.^ Other powers were expressly conferred on two or 
 
 more Justices, to be exercised out of sessions; notably under 
 
 the Riot Act of 1411,^ and the Elizabethan Poor Law.^ It 
 
 will be noted, that all these powers are statutory ; because the 
 
 Justices themselves are statutory officials, having no traditional 
 
 or 'common law' powers. But it is hardly going too far to 
 
 suggest that, in many cases, these statutory offences were really 
 
 mere recognitions of ancient communal misdoings, which, in the 
 
 earliest times, would have been the subject of fine or other 
 
 punishment in the Hundred Court, and, somewhat later, in the 
 
 Leet sessions of the High Constable. Just in the same way as 
 
 the new Justices had succeeded to the position of the sheriff' as 
 
 apprehender and custodian of persons charged w^th serious 
 
 offences, so they had succeeded to the jurisdiction of the decaying 
 
 popular moots in the punishment of petty offences. 
 
 Before leaving them, a passing reference must be made to a 
 
 General question whicli has later become of importance. Was 
 
 and Special ^}jg modern distinction between Quarter (or Gen- 
 Sessions i 
 
 eral) and Petty Sessions recognized in the period 
 under review? 
 
 It is easy to make a mistake on this point. The modern 
 lawyer thinks of Quarter Sessions as a Court by which more 
 serious offences are tried, and as a court of appeal from Petty 
 Sessions, which decides, in a ' summary ' manner (i.e. without a 
 jury) on accusations of petty offences. But w^e have seen that, 
 in the sixteenth century, petty offences were, to a large extent, 
 tried and disposed of ' out of sessions ' ; and this practice con- 
 tinued, to the great discredit of ' Justices ' justice,' until the 
 passing of Sir John Jervis' Acts, in the nineteenth century. 
 So there appears to be no room for any sessions but Quarter or 
 General Sessions. 
 
 Nevertheless, it is quite clear that Lambard, at least, if not 
 Fitzherbert, was familiar with 'special' as distinct from 'general' 
 sessions. He tells us,^ that they are holden 'at other times, 
 when it shall please the Justices themselves, ... to appoint 
 them,' and, usually, only for special business, such as the delivery 
 of gaols in populous towns. It appears to have been a moot 
 point between Fitzherbert and Lambard whether at ' special ' 
 
 1 Lambard, 303 (43 Eliz. (1601) c. 7). '39 Eliz. (1597) c. 3, s. 3. 
 
 2 13 Hen. IV, c. 7. * Book IV, cap. 20.
 
 154 A SHORT HISTORY OF ENGLISH LAW 
 
 session the Justices were at liberty to ' give in charge ' all the 
 statutes alluded to in their Commission; and the matter was 
 complicated, for a particular reason. Just after Fitzherbert's 
 death in 1538, a statute had been passed ^ for the institution of 
 what were known as ' six weeks' sessions,' being, in fact, very 
 much like the modern Petty Sessions, for the trial of minor 
 offences in limited divisions of the county. But this statute, 
 having been found oppressive, had been repealed in 1545 ; ^ 
 and the business of 'the six weeks' sessions' had, thereupon, 
 reverted to the Justices out of sessions. It was possible, there- 
 fore, to argue, that ' special sessions ' were an attempt to revive 
 an abolished institution, and therefore invalid. 
 
 Finally, on the subject of Justices, it may be remarked, that, 
 speaking generally, the Commission of the Peace, of which a 
 Borough specimen appears in Fitzherbert,^ is a commission 
 Justices fQj. ^]^g county ; but that Commissions of the Peace 
 for boroughs were, evidently, not unknown in the sixteenth 
 century.^ During the Commonwealth period, indeed, some of the 
 boroughs developed an elected magistracy ; but this practice, 
 except as regards the Mayor (who was not, necessarily, a Justice 
 of the Peace) was put down with a strong hand after the Res- 
 toration. Save for these exceptions, however, it has been statute 
 law since 1535,^ that the appointment of Justices of the Peace, 
 even in counties palatine, is an exclusive right of the royal prerog- 
 ative. 
 
 Next in importance, in changing the character of criminal 
 procedure in this period, to the appearance of the peace juris- 
 diction, was the practical disappearance of the ancient procedure 
 byway of appeal of felony. The nature of this procedure has been 
 discussed at an earlier stage ; and we have seen how, by means 
 of the new jury-system, the King's judges had succeeded in re- 
 stricting the use of it.^ 
 
 Nevertheless, it is clear that, at the commencement of our 
 
 present period, the appeal of felony was regarded, if not with 
 
 favour, at least with toleration, by the State. For 
 
 the Statute of Gloucester^ abolished the necessity 
 
 for ' fresh suit ' in conducting an appeal ; and enacted 
 
 > 33 Hen. VIII (1541) c. 10. « 37 Hen. VIII, c. 7. ' Op. cit. ff. 1, 2. 
 
 * Ihul. fo. 77a. 8 Ante, pp. 51, 52. 
 
 ' 27 Hen. VIII, c. 24, s. 2. ^ 6 Edw. I (1278) c. 9.
 
 CRIMINAL LAW AND PROCEDURE 155 
 
 that an appeal brought within a year and a day of the 
 commission of the alleged offence should not abate for 
 delay. But the tide quickly turned. The Statute of West- 
 minster II ^ provides for the punishment of persons bringing 
 unsuccessful appeals. The Statute of Appeals of 1300 ^ allows 
 any person appealed by an 'approver' (i.e. an accomplice 
 turning King's evidence) to put himself upon his country, i.e. 
 claim to be tried by a jury. A statute of 1399^ forbade the 
 hearing of appeals in Parliament — a rule which practically 
 put a stop to appeals of treason. But the two steps which did 
 most towards abolishing appeals were taken in the years 1486 
 and 1529 respectively, and were both of an indirect nature. 
 
 Nothing is more characteristic of the sacredness with which 
 the ancient right of revenge was regarded, even so late as the 
 fourteenth century, than the rule which grew up as the result of 
 the clause of the Statute of Gloucester, above alluded to. We 
 have seen^ that, when indictments were first introduced by the 
 Assises of the twelfth century, there was considerable doubt as 
 to the respective priorities of the Crown and the persons en- 
 titled to prosecute an offence by way of appeal. The Statute of 
 Gloucester, which, as just stated, gave the appellor a year and a 
 day from the commission of the offence in which to bring his 
 appeal, seems to have been taken as creating a 'close time' in the 
 appellor's favour. During that time, accordingly, the public 
 prosecution was suspended ; with, probably, the result that, 
 in many cases, the offender made good his escape entirely. 
 This rule was, however, abolished by statute in 1486, so far as 
 appeals of murder were concerned.^ 
 
 Again, one of the drawbacks to a prosecution by indict- 
 ment, from the injured person's point of view, was that, a con- 
 victed felon's chattels being forfeited to the Crown, no restitu- 
 tion of stolen property could be claimed by the prosecutor. 
 Naturally in such circumstances, a prosecutor who was a powerful 
 man of his hands preferred an appeal of larceny. But, in the 
 year 1529,^ it was enacted that whenever a person was convicted 
 of felonious robbery or larceny, ' by reason of evidence given 
 by the party so robbed, or owner,' the latter should be entitled to 
 
 ' 13 Edw. I, St. I (1285) c. 12. * Ante, pp. 42, 43. 
 
 2 28 Edw. I. 6 3 Hen. VII (1486) c. 1 (14). 
 
 n Hen. IV, c. 14 (4). '21 Hen. VIII, c. 11.
 
 156 A SHORT HISTORY OF ENGLISH LAW 
 
 a writ of restitution of his goods, ' in like manner as though any 
 such felon or felons were attained at the suit of the party in 
 appeal ' ; thus removing one of the chief inducements to bring 
 an appeal of robbery or larceny. This provision had a substan- 
 tial effect on the civil as well as the criminal law ; for it overrode 
 the rule that purchase in market overt by a bond fide purchaser 
 conferred a valid title, and the exception prevails to the present 
 day. It is not to be supposed, that even these changes in the law 
 caused the immediate and total disappearance of the appeal of 
 felony; and it is quite worthy of notice that the Appendix to 
 Fitzherbert's work on the Justice of the Peace, published in 
 1583, contains a full set of forms of ' appeals,' and there are 
 several references to ' appeals ' in Dyer's reports. On the other 
 hand, it is equally fair to point out, that the later Lambard, who 
 wrote at the beginning of the seventeenth century, though 
 he closely follows Fitzherbert's order, does not think it 
 necessary to give forms of appeals. He gives, however, the 
 form of the Writ of Restitution.^ As is well know^i, the ap- 
 peal of murder was revived, with dramatic effect, in Thorn- 
 ton's Case, in 1819; but the total abolition of appeals im- 
 mediately followed." 
 
 Finally, criminal procedure was rendered greatly more effective 
 in this period by the severe restrictions placed upon the absurd 
 Benefit of privileges known as ' benefit of clergy ' and ' sanctu- 
 ciergy ^^j-y ' ^g ^^^ have said,^ the former arose out of 
 
 the struggle between State and Church in the twelfth century, 
 on the subject of ' criminous clerks ' — i.e. jurisdiction to try 
 clerks accused of crime. The compromise arrived at in the 
 Constitutions of Clarendon^ was not kept, mainly owing to the 
 indignation felt for the murder of Becket ; and it was well 
 understood, that the handing back of the accused to the clerical 
 tribunal on the plea of privilege, was a mere formality precedent 
 to his liberation. Moreover, in the twelfth century, the line 
 between cleric and lay was very vaguely drawn, owing to 
 the existence of a number of ' minor orders ' ; while the 
 rough and ready test adopted by the royal judges enabled 
 practically any man who could get up the small quantity of 
 Latin necessary to enable him to repeat a well-known verse of 
 
 ^ Processes, ad fin. ^ Ante, p. 74. 
 
 259 Geo. III. c. 46, 8. 1. *Cap. Ill S.C. 138.
 
 CRIMINAL LAW AND PROCEDURE 157 
 
 Scripture, to escape a conviction by ' pleading his clergy.' ^ The 
 only merit of the privilege was, that it served as a mitigation 
 of a rather savage criminal law. But, even in this respect, it 
 was defective ; for no woman could be a cleric, and, therefore, 
 no woman could plead benefit of clergy. 
 
 The privilege was one of the first attacked by the Reforma- 
 tion statutes. In 1531,^ all persons below the rank of subdeacon 
 were excluded from the benefit of it in the case of the more serious 
 felonies ; and even those who were admitted to it were to be kept 
 in prison by the Ordinary, or made to find sureties for good 
 behaviour. The exclusion was extended to persons in higher 
 or genuine holy orders in 1536.^ Forty years later, a still more 
 stringent statute was passed,^ Where the privilege was allowed, 
 the layman pleading it was to be branded in the hand ; and, in- 
 stead of being delivered over to the Ordinary, to undergo imagi- 
 nary purgation, he was to be at the disposal of the Justices, who 
 might either set him free at once, or imprison him for any period 
 not exceeding a year, while no one was to be allowed to plead his 
 clergy a second time. But the most effective reduction of the 
 privilege resulted from the practice, which began in the six- 
 teenth century, of enacting that certain offences should be ' with- 
 out benefit of clergy ' ; and, as new crimes were thus created, 
 and older ones passed through the sieve of legislation,^ the privi- 
 lege became of less and less value. In 1706, the farce of applying 
 the reading test was abolished ; ^ but in 1827 the privilege itself 
 was entirely swept away.^ 
 
 The privilege of sanctuary was, originally, a notable achieve- 
 ment in the crusade waged by the Church in the Dark Ages 
 against violence and disorder. Whilst unable, as has 
 been before pointed out,^ wholly to repress the waging 
 of the blood-feud, the Church did succeed in establishing the 
 doctrine, that the feud should be suspended during certain seasons 
 and in certain places. The former restriction is the origin of 
 the legal holidays (i.e. ' holy days ') and vacations, when no 
 legal process was possible. The latter gave rise to the privilege 
 
 ' The mechanical way in which the privilege was exercised may be guessed at by 
 the fact, that the copy of the Gospels kept in Court for the purpose of administering 
 the test was officially known as 'The Clergy.' (Somers Tracts, VI, 235.) 
 
 «23 Hen. VIII, c. 1. ^ 28 Hen. VIII, c. 1. " 18 Eliz. (1576) c. 7. 
 
 6 E.g. 1 Edw. VI (1547) c. 12, s. 10 ; 5 and 6 Edw. VI (1552) c. 10 ; 8 Eliz . (1565) 
 c. 4; 18 Eliz. (1576) c. 7, s. 1 ; 39 Eliz. (1597) c. 9. 
 
 » 5 Anne, c. 6, s. 4. ^ 7 & 8 Geo. IV, c. 28, s. 6. « _4„;g_ p §_ 
 
 Sanctuary , , p • ^ i ^ g
 
 158 A SHORT HISTORY OF ENGLISH LAW 
 
 of sanctuary, which we are now discussing. If the accused 
 could succeed in reaching some place which was sheltered by 
 the protection of the Church, before the avenger of blood caught 
 him, he could, practically, evade the challenge to battle ; for 
 the thunders of the Church would have blasted the daring ' ap- 
 pellor ' who had ventured to drag the fugitive from the sacred 
 precincts. But the privilege was confined, strictly, to the local- 
 ity ; and worked a suspension, only, not an extinction of the feud. 
 
 The situation was, however, at that, intolerable to both 
 parties. The fugitive was, virtually, condemned to perpetual 
 imprisonment ; ^ for, the moment he left the place of sanctuary, 
 he could be attacked. The accuser was, virtually, condemned 
 to perpetual watching outside the sacred spot ; unless he was 
 prepared to allow his adversary to escape. No doubt, advan- 
 tage was often taken of the delay to arrange some kind of a 
 compromise between the parties, i.e. generally, the payment of 
 the blood-fine or ' wergild.' But, as has been explained in an 
 earlier chapter,^ there seems to have been no power, at any rate 
 in the earliest days, to compel the acceptance of ' wer ' or ' wite.' 
 
 Apparently, however, a way had been found out of the diffi- 
 culty, before the close of the jNIiddle Ages, in the practice of 
 ' abjuring the realm,' which we find fully recognized in the 
 Assises of Clarendon and Northampton.^ The accused, in the 
 presence of the coroner, took the oath of abjuration, became, in 
 fact, an outlaw, and was then given a safe-conduct, under shelter 
 of which he was passed from constable to constable to the sea, 
 where he took ship for a foreign clime, and was seen no more 
 in his native land. 
 
 Perhaps the most remarkable fact in the history of ' sanctuary ' 
 is that, as the evidence abundantly shows, it was incorporated, 
 apparently without question, into that new royal criminal pro- 
 cedure by indictment which, as we have seen,^ was introduced 
 in the twelfth century. It was quite natural, according to 
 our ideas, that the wild justice of revenge should be curbed by 
 some such restriction as that afforded by the privilege of sanctu- 
 ary ; but it is somewhat startling to find what we should consider 
 
 ' The inconveniences attendant on this state of affairs are detailed, with more 
 directness than elegance, in the Arliculi Cleri of 1315. 
 « Ante, pp. 8, 0. 
 
 ' Clarendon, cap. 14; Northampton, cap. 1 (S.C. 145, 151). 
 * Ante, pp. 40, 41.
 
 CRIMINAL LAW AND PROCEDURE 159 
 
 to be the passionless justice of the State subjected to a similar 
 control. Perhaps the impartiality of the State was not so com- 
 plete as in modern times ; perhaps the idea (which we have traced 
 in other quarters)/ that the King ought not to have any unfair 
 advantage over the private prosecutor, was responsible for 
 the incorporation of the privilege into true criminal law. At any 
 rate, the adoption is beyond question ; for we find the Articuli 
 Cleri of 1315,^ not merely providing remedies for some of the 
 minor defects of the situation, but exempting clerics altogether 
 from the necessity of abjuring the realm after taking sanctuary.^ 
 
 It was not, apparently, until the sixteenth century, that the 
 mischief of the privilege began to be realized ; and, even then, 
 the first thought of the reformers seems to have been in a direction 
 which to us appears quaint enough. The advisers of Henry 
 VIII seem to have regretted the loss to the kingdom, by the 
 process of abjuration, of so many active spirits, who, though 
 not exactly modelled after a Sunday school pattern, had in them, 
 doubtless, the making of ' expert mariners,' and ' very able and 
 apt men for the wars.' ^ Accordingly, the person who has fled 
 to sanctuary, was not, after taking the oath of abjuration, 
 to avoid the realm, but to remain a perpetual prisoner under the 
 control of the authorities of his chosen sanctuary, whence he 
 could, doubtless, be released by the royal officers anxious to secure 
 recruits for army and navy. He was not, however, allowed to 
 disport himself in his former lawless manner ; for the commission 
 of felony after abjuration was to involve loss of the privilege of 
 sanctuary. 
 
 But, a few years later, probably under the double influence 
 of the decay of appeals and the feeling against Church privileges, 
 we find a stringent statute ^ on the subject, which, whilst not 
 reversing entirely the policy of 1530, in effect renders it of less 
 importance. A large number of sanctuaries are abolished ; and, 
 in fact, only parish, cathedral, and collegiate churches, together 
 with eight other specially favoured places, are to retain what 
 was, doubtless, a very lucrative privilege. Moreover, persons 
 committing murder, rape, burglary, highway robbery, house- 
 
 > Ante, p. 155. 2 9 Edw. II, st. I, cc. 12, 15. 
 
 ' This provision (c. 15) clearly demonstrates that the compromise of the Constitu- 
 tions of Clarendon, on the subject of criminous clerks, had broken down. Clerical 
 immunity from lay jurisdiction is openly admitted by the statute. 
 
 < 22 Hen. VIII (1530) c. 14. ' 32 Hen. VIII (1540) c. 12.
 
 160 A SHORT HISTORY OF ENGLISH LAW 
 
 breaking, or arson, are excluded entirely from privilege of sanctu- 
 ary; and the number of fugitives which may be sheltered in 
 any one sanctuary is restricted to twenty. All this legislation 
 was repealed by a statute of James I, passed in the year 1G04,^ 
 which is noteworthy as an early example of what would now be 
 called a ' Statute Law Revision Act.' But, whatever may have 
 been the object of this apparently retrograde step, it was of no 
 great importance ; for, in a statute of the year 1623,^ the privilege 
 of sanct«uary was entirely abolished. 
 
 1 1 Jac. I, c. 26, s. 34. 2 21 Jac. I, c. 28, s. 7.
 
 CHAPTER XII 
 
 CIVIL PROCEDURE IN THE LATER MIDDLE AGES 
 
 THE gradual severance of criminal from civil proceedings 
 which, as has been explained in the preceding chapter, 
 resulted from the introduction of indictments and the 
 gradual abolition of ' appeals,' paved the way for the develop- 
 ment, on scientific lines, of purely civil procedure, i.e. of pro- 
 cedure in actions between citizen and citizen for the vindication 
 Written of private rights. For, whilst the direct connection 
 ings between true criminal procedure and the ancient 
 right of vengeance lingered long in the public mind, and produced 
 that intense conservatism which retained, in criminal procedure, 
 the archaic oral pleadings and the minute correctness of detail 
 which characterized the appeal of battle ; in the less heated 
 atmosphere of civil procedure, convenience and legal science were 
 allowed freer play. Thus it seems quite clear, though the exact 
 dates elude us, that, by the beginning of the sixteenth century, 
 the ancient oral pleadings in open court, uttered by the ' Serjeant ' 
 or ' counter ' of the parties, had given way to the more convenient 
 written pleadings which, after being exchanged between the 
 parties, were enrolled on the records of the tribunal. At any 
 rate, it seems impossible to believe that the elaborate and lengthy 
 ■pleadings set forth in the Liber Intrationuin of 1510, and the 
 other early ' Books of Entries,' ^ were really intended to be 
 delivered by word of mouth ; ^ though the perpetual recurrence 
 of the phrase ' comes and says ' reminds us of the earlier practice. 
 These books show us also, that the sequence of steps so familiar 
 to the later pleaders was already established in the sixteenth 
 century. After the narratio or ' declaration ' of the plaintiff, 
 
 1 The most famous of these in the period now under discussion are those of 
 Rastell (1564), Coke (1614), and Brownlow (1652). 
 
 2 On the other hand, the statute of 1362 (36 Edw. Ill, st. I, c. 15) which required 
 pleadings to be in the English tongue, appears to assiune that they were delivered 
 orally in Court by the 'sergeants and other pleaders.'
 
 162 A SHORT HISTORY OF ENGLISH LAW 
 
 comes the ' bar ' or ' plea ' of the defendant, followed by the 
 replicatio or ' reply ' of the plaintiff, and this again, if necessary, 
 by the rejoinder of the defendant ; till, at last, the parties 
 attain their desired end, viz. the joinder of issue on some definite 
 question which can be submitted to the jury. But this process 
 was rendered even more artificial and complicated than it need 
 otherwise have been, by a curious reaction which seems to have 
 taken place quite early in this period, and which led to the 
 development of the highly technical process known as 'giving 
 colour.' 
 
 We have seen ^ that, as a result of a series of procedural re- 
 forms extending over part of the twelfth and the whole of the 
 thirteenth centuries, the jury had gradually ousted the 
 older methods of trial as the ordinary procedure in 
 civil as well as criminal cases. Though the details of this impor- 
 tant development, especially in the later stages, are still among 
 the unsolved mysteries of English legal history,^ we may take 
 it as settled that, at any rate by the middle of the fourteenth 
 century, the ordinary civil action at common law was tried by a 
 jury of twelve men. 
 
 But, apparently, the defects of the jury system had already 
 made themselves felt ; and from the beginning of the fifteenth 
 century, and especially in those very proceedings, e.g. assises, 
 entries, and trespasses, to which the jury-system had from the 
 first been essential, we notice a curious plan adopted for the 
 purpose of mitigating its defects. Thus, in a case of the year 
 1400,^ the parson of Saltash brought a Writ of Trespass for 
 goods taken in Saltash. Now there can be little doubt that the 
 defendant had taken the goods ; and, therefore, that if he had 
 contented himself with a simple denial, or, in the words of later 
 days, ' pleaded the general issue ' of * not guilty,' the jury would 
 infallibly have found against him. But the defendant believed 
 himself able to justify his proceedings as servant to the Dean of 
 Windsor, who was ' parson ' or rector of Saltash ; and so he 
 alleged a taking in that capacity and an attempted seizure by 
 the plaintiff. Thus he raised a question of law, the decision of 
 which was for the Court, not for the jury ; and though, in that 
 
 • Ante, pp. 46-52. 
 
 * The most notable contribution to the subject is Thayer's Treatise on Evidence 
 at the Common Law (London and Boston, 1898). 
 
 » Y.B. 2 Hen. IV, fo. 5, pi. 16.
 
 CIVIL PROCEDURE IN MIDDLE AGES 163 
 
 particular case, the point of law went against the defendant, the 
 propriety of the fictitious story was not questioned. The illus- 
 tration given in Doctor and Student ^ is an Assise of Novel Dis- 
 seisin brought against an occupant of land by a stranger of whose 
 title the defendant knows nothing. If the defendant were to 
 plead simply ' no wrong nor disseisin,' i.e. the general issue, he 
 might find himself defeated by a hostile verdict on some techni- 
 cal disseisin committed by a predecessor in title. Even if he 
 were to put his own title in evidence, that would not help him ; 
 for that would be a plea ' amounting to the general issue,' and, 
 therefore, going to the jury as a whole. But, by giving the 
 plaintiff a ' show,' or ' colour,' i.e. by imagining a fictitious title 
 for the plaintiff, specious, but inferior to his own,^ and asking 
 the judgment of the Court upon it, he avoided the general issue. 
 Naturally, the plaintiff, unwilling to have an inferior title thus 
 ' surmised ' or put upon him, replied with his real title ; and 
 thus the question came before the Court as one of law. In the 
 report of the leading case on the subject of ' colour,' viz. Doctor 
 Leyfield's Case, decided in 1611,^ it is said by Coke, that every 
 * colour ' ought to have four qualities, viz. : — 
 
 1. It ought to be a doubt to lay people (or, as it is some- 
 
 times put, to ' the lay gents ') ; 
 
 2. It ought to have continuance, i.e. it must feign a state 
 
 of things existing at the date of the cause of action ; 
 
 3. It ought to be such as, if it were of effect (i.e. true) it 
 
 would maintain the action ; 
 
 4. It should be given by him who is in by the first convey- 
 
 ance, i.e. has apparently the older title ; because he is 
 
 the true defendant, the presumption being in his 
 
 favour. 
 
 It must, of course, be remembered that, during the latter 
 
 part of the period now under discussion, there was growing up. 
 
 Equity alongside this common law, technical, ' litigatory ' 
 
 roce lire procedure, another system of civil procedure of a 
 
 wholly different character. This was the procedure of the 
 
 * Dialogue, II, chap. 53. 
 
 • The example in Doctor and Student is that the plantiff claims ' by colour of a 
 deed of feoffment,' which, without livery, would not have passed seisin. This appears 
 to have become common form ; for in 1606 an ignorant pleader actually applied it 
 to goods, with disastrous results, for goods did pass by deed without livery (Radford 
 V. Harbyn, Cro. Jac. 122). 
 
 » 10 Rep. 88.
 
 1G4 A SHORT HISTORY OF ENGLISH LAW 
 
 Court of Chancery, which, at least from the end of the fourteenth 
 century,^ had become a tribunal of resort for suitors whose 
 cases were not covered by the common law Register of Writs. 
 Chancery procedure differed in almost ever}' conceivable respect 
 from the procedure of the Common Law courts. In the first 
 place, it did not treat the parties as equal rivals, coming for a 
 decision of strict right ; but as petitioner and respondent in a 
 matter of grace. Accordingly, the proceedings in a Chancery suit 
 did not begin with the issue of a Writ Original, in a stereotyped 
 form, but with an informal petition, or Bill, in which the com- 
 plainant set forth his grievance in artless language. Then, 
 if the petition disclosed a prima facie case for the interference 
 of Equity, the Chancellor issued a judicial Writ of Subptjena - 
 against the respondent, or defendant, bidding him, under pain 
 of =£100, appear and answer on oath the petitioner's complaint. 
 No doubt, at first, as in the Common Law courts, the pleadings 
 in Chancery were oral ; but, by the beginning of the seventeenth 
 century at the latest, it is clear that a regular succession of 
 written pleadings — bill, answer or plea, and replication or 
 reply — had been established.^ Only, it must be remembered 
 again, these pleadings were not, like those of the Common Law 
 courts, technical and often imaginary arguments drawn out to an 
 issue ; but merely statements of facts. Even the ' demurrer,' ■* 
 which at Common Law was a highly technical step, raising a 
 
 1 The earliest Chancery reports that are conveniently accessible are those printed 
 in the Record Commission's Calendars of Proceedings in Chancery (1827), and in the 
 Seidell Society's Select Cases in Chancery (Vol. 10), together with occasional examples 
 in Bellewe's Les Ans du Roy Richard Le Second. These cases show that the Equity 
 jurisdiction of the Court was well established in the latter half of the fourteenth 
 century. 
 
 2 The Subpoena ad respondendum, which must be carefully distinguished from 
 the Subpoena ad testificandum (to compel the attendance of a witness), is attributed 
 to the invention of John Waltham, Master of the Rolls, 1381-138G. It is said, but 
 with doubtful truth, by the Serjeant in his comment on Doctor and Student (Appen- 
 dix, Part II), to be the process alluded to in a statute of 1393 (17 Ric. II, c. 6). 
 It is, however, certainly pointed at by the 15 Hen. Yl (1436) c. 4 ; and the increas- 
 ing power of the Chancery jurisdiction at the commencement of the sixteenth cen- 
 tury is obvious from the Appendix to Doctor and Student. The Serjeant maliciously 
 points out, that the Writ of Subptena will not be found in Fitzherl)crt {Natura 
 Brevium), obviously the classical treatise on writs of that peroid, i.e. about 
 1520. 
 
 'See Bacon's celebrated Ordinances, published in his Law Tracts (ed. 1737). 
 Bacon became Lord Chancellor in 1618. 
 
 ■* \ demurrer was a plea by which the person demurring admitted the facts 
 stated by his opponent, but denied that they warranted the legal conclusion drawn 
 from them. It was a highly dangerous step; for, if the; demurrer was overruled, 
 the other party got judgment at once, on the admitted facts.
 
 CIVIL PROCEDURE IN MIDDLE AGES 165 
 
 technical question of law, was, in Chancery, merely a suggestion 
 that the plaintiff was already provided with a legal remedy, and 
 had no need, therefore, to resort to the aid of Equity. 
 
 Again, the Court of Chancery was by no means content to 
 play the part of indifferent umpire in a judicial duel ; its business 
 was to examine the defendant and purge his conscience of its 
 burden of guilt. Its proceedings were ' inquisitorial,' in the 
 strict sense. They involved the administering of a searching 
 examination to the respondent ; and, though the course of this 
 examination was, doubtless, suggested by the plaintiff', it was, 
 in theory, administered by the Court. ^ Thirdly, there was no 
 jury, for whose sake the pleadings had to be worked up to a 
 definite issue of ' aye ' or ' no ' ; it was for the Court to pro- 
 nounce a decree on consideration of the whole facts. Therefore, 
 though Equity pleadings in later times often assumed portentous 
 length, they were free from the technical rules of Common 
 Law pleading. Finally, in its decree, the Court of Chancery 
 proceeded in personam, by imprisoning the defendant until 
 he obeyed the order of the Court, or even, if necessary, issuing 
 a ' commission of rebellion ' against him ; whereas the Common 
 Law judgment either directly bound the property in rein, or was 
 restricted to the award of damages, to be ' made ' by sale of 
 the defendant's chattels or body {Ca. Sa.), or, at the option 
 of the plaintiff', by seizure of half his lands, under the new remedy 
 of Elegit introduced by the Statute of Westminster the Second.^ 
 It will, of course, not be forgotten, that, towards the end of 
 the period under discussion, the superiority of the Equity juris- 
 diction in cases of conflict between it and the Common Law courts 
 was vindicated in the well-known dispute between Chief Justice 
 Coke and Lord Chancellor Ellesmere, in which, Coke having 
 procured the indictment at the ^Middlesex Sessions of two de- 
 fendants in Common Law actions who had applied to Chancery 
 for injunctions to stop the plaintiff's proceeding, the Grand 
 
 ^ The defendant is not to be examined upon interrogatories, except "it he in very 
 special cases, by express order of the Court" (Bacon, Ordinances, No. 70). 
 
 2 13 Edw. I, (1285) st. I. c. 18. Of course, by means of arrest on mesne process, 
 the Common Law courts had also considerable powers against the person of the 
 defendant. But that is a different matter, to be explained later. No doubt, on the 
 other hand. Chancery had invented the process of sequestration, by which property 
 in dispute could be seized into the hands of officials appointed by the Court, to put 
 pressure on a contumacious defendant. But Lord Chancellor Hatton's attempt to 
 make a Chancery decree bind the legal estate directly, like a Fine, was not successful.
 
 166 A SHORT HISTORY OF ENGLISH LAW 
 
 Jury ignored the indictment, and, the matter having been taken 
 up by the Law Officers, the King decided (though in somewhat 
 ambiguous terms) in favour of the Chancellor.^ 
 
 It is hardly possible to leave this part of the subject, without 
 pointing out, that the procedure of the Court of Chancery re- 
 Chancery sembled that of the Court of Star Chamber, almost 
 and star as completely as it differed from that of the Common 
 Law courts. So striking, indeed, is the resemblance, 
 that the Star Chamber is sometimes called a ' court of criminal 
 equity' ; and suggestions of a common origin are frequently met 
 with. The latter raise a constitutional, rather than a legal ques- 
 tion ; but the resemblance between Chancery and Star Chamber 
 in the matter of procedure is indisputable. Like the Chancery, 
 the Star Chamber began with a Bill, followed by arrest and 
 examination of the defendant. As became the criminal char- 
 acter of the proceedings, the examination was more stringent 
 than in Chancery ; sometimes, it is to be feared, leading to actual 
 torture. But the principle was the same. So too, the fact that 
 the accuser and the accused were not on equal terms. The 
 accuser was merely the informant, on whose evidence the Court 
 might, if it thought fit, act, but who was not brought face to 
 face with the accused. There was no jury, as there was none 
 in Chancery, to decide between the parties. Finally, the decree 
 of the Court of Star Chamber, like that of the Chancery, was 
 against the person of the defendant ; though, doubtless, a heavy 
 fine might also be levied from his goods. So striking are the 
 resemblances and differences between the procedures of the 
 three jurisdictions that it may be of interest to set them out in 
 tabular form. (See page 1G7.) From this it will be seen, that 
 the procedure of the Court of Chancery agrees with that of the 
 Court of Star Chamber in no less than seven points, and 
 differs from it only in two ; while, conversely, it differs from 
 the Common Law courts in seven points, and agrees only in two. 
 
 Finally, on this point, it is not unworthy of mention, that when, 
 in accordance with somewhat later practice, it became common 
 to appoint a Lord Keeper, or Commissioners for executing the 
 office of the Great Seal, instead of a Chancellor, the commissions 
 of these officials, until the abolition of the Court of Star Chamber, 
 specially empowered them to hear causes in that tribunal. 
 
 * Bacon alludes to the royal decree (26 July, 1616) in hia Ordinances (No. 33).
 
 CIVIL PROCEDURE IN MIDDLE AGES 167 
 
 [The Period is supposed to be about the Year 1500] 
 
 
 Common Law Courts 
 
 Star Chamber 
 
 1. 
 
 Right. 
 
 Grace. 
 
 2. 
 
 Writ {i.e. special form 
 of action). 
 
 Bill (no form of action) . 
 
 3. 
 
 Pleadings ( ? oral) to 
 
 Written pleadings (no 
 
 
 issue. 
 
 issue). 
 
 4. 
 
 No examination of 
 parties. 
 
 Defendant on oath. 
 
 5. 
 
 Precedents. 
 
 Discretion. 
 
 6. 
 
 Jury. 
 
 No jury. 
 
 V. 
 
 In rem. 
 
 In personam. 
 
 8. 
 
 Open accusation. 
 
 Accuser unknown. 
 
 9. 
 
 Reasons given for 
 judgment. 
 
 No reasons given. 
 
 Chancery 
 
 Grace. 
 
 Bill (no form of action). 
 
 Written pleadings (no 
 
 issue). 
 Defendant on oath. 
 
 Discretion. 
 No jury. 
 In personam. 
 Open accusation. 
 Reasons given. 
 
 With regard to the topics specially dealt with by the Court 
 of Chancery at the beginning of the sixteenth century, a very 
 useful summary will be found in a criticism of the work known 
 as Doctor and Student, previously alluded to. This is supposed 
 to be a commentary, by a * Serjeant of the laws of England,' 
 on certain subjects dealt with in the two Dialogues which com- 
 pose the main treatise ; and though, being obviously written 
 from the point of view of a common lawyer, it must be regarded 
 with some suspicion, its temperate and reasonable tone, together 
 with the verifiable truth of many of its allegations, forbid us 
 to treat it as a mere party squib. In Part II. of his criticism, 
 the Serjeant enumerates the following cases' in which it is ad- 
 mitted that a Subpoena will lie, viz. : — 
 
 1. Discovery of documents ; 
 
 2. Perfecting of imperfect conveyances for valuable con- 
 
 sideration (where there was an express promise, the 
 Action of Case lay at the common law) ; 
 
 3. Recovery of rents reserved in conveyances of the whole 
 
 estate of the grantor ; ^ 
 
 4. Defence against unconscionable claims, e.g. when the 
 
 plaintiff has been sued at common law on a bond 
 
 1 These were void at Common Law, because, as the grantor had no reversion 
 after the execution of the conveyance, he could not 'reserve' anything to himself. 
 Of course by using the proper forms he could have given himself a rent charge, for 
 which an assise would have lain.
 
 168 A SHORT HISTORY OF ENGLISH LAW 
 
 which he has really discharged. (This was, probably, 
 an early case of the ' common injunction ') ; 
 5. Performance of ' uses.' ^ 
 
 This list agrees fairly well with the doggerel summary attributed 
 
 to Sir Thomas More — 
 
 ' Thi-ee things are to be judged in Court of Conscience, 
 Covin (fraud), accident, and breach of confidence.' 
 
 But it is noteworthy that, as the Serjeant has no difficulty in 
 showing,'^ there were many other hard cases for which no remedy 
 lay, either in the Common Law courts or in Chancery; as, for 
 example, that of the man in respect of whose land a Fine with 
 proclamations had been levied by another who knew perfectly 
 well of his opponent's title, and yet took no steps to make him 
 aware of the proceedings, or, a still more glaring case, when a 
 man had bought goods on credit and died, and the creditor 
 could not bring Debt against the debtor's executors, because the 
 debtor would have been entitled to ' wage his law.' Thus it is 
 clear that there was ample scope, despite the efforts of the 
 Chancellors, for the enterprising law reformer, in the first half 
 of the sixteenth century. 
 
 Apart from these general features, the period is marked by 
 three events of first-class importance in the history of civil 
 procedure, viz : (i) The establishment of a common jurisdiction 
 in the three Common Law courts at Westminster by means of 
 legal fictions ; (ii) the introduction of arrest on mesne process 
 as an ordinary step in civil proceedings ; and (iii) the perfection 
 of the Action of Ejectment as a general process for trying title 
 to land. A few words must be said about each of these events ; 
 but the first two are so closely interwoven, as reciprocal cause 
 and eft'ect, that it will be necessary to treat of them together. 
 
 It will be known to all students of Constitutional History, 
 that, of the three ' Courts of Common Law at Westminster,' 
 which, for nearly six centuries, administered the Common Law 
 in the name of the King, only one was, in origin, a court of 
 general jurisdiction for civil causes. This was the Court of 
 Common Bench, attributed to the action of Henry II, Avho, 
 according to Benedict of Peterborough, selected, in the year 
 
 ' Chaps. II-VI. , 2 Chaps. VII and VIII.
 
 CIVIL PROCEDURE IN MIDDLE AGES 169 
 
 117S, five persons from his household, and directed that they 
 'should not depart from the King's Court, but there remain to 
 hear all the complaints of the kingdom, and do right ' ; cases 
 of peculiar difficulty being reserved for the hearing of the King 
 himself, with the advice of his wise men.^ Thus arose the Court 
 held before ' Our Justices at Westminster,' the ' certain place ' 
 chosen in obedience to article XVII of the Great Charter. In 
 theory, the King's or Upper Bench, the Curia ad placita coram 
 Rege tenenda, only exercised the reserved jurisdiction described 
 above, for cases of peculiar difficulty,- and dealt with matters 
 in which the Crown was peculiarly interested, e.g. the 'prerog- 
 ative' writs of Certiorari, Prohibition, and the like, and the 
 prosecution of criminal offences. So too, the Exchequer of 
 Pleas, which, as we have seen,^ dates from 1268, at first dealt 
 only with matters really arising in the course of the collection 
 of and accounting for, the revenue, as described in the Dialogue 
 cf ihe Exchequer.'^ 
 
 The Common Bench, or Common Pleas, then, was the normal 
 
 and proper court for the commencement of ordinary civil process ; 
 
 and, in the absence of special circumstances, the 
 
 Process m 
 
 the Common forms of writ assume that the defendant will be 
 ^^'^ ordered to appear ' before Our Justices at West- 
 
 minster.' It was not, however, very easy to compel the defendant 
 to obey a writ of summons ; for, as we have previously seen, early 
 tribunals find themselves in the greatest possible difficulty 
 in the face of a contumacious defendant. Apparently, during 
 the earlier part of our period, in an ordinary civil action in the 
 Common Bench, after the service of the summons by the sheriff's 
 officers, and the failure of the defendant to appear, the sheriff 
 could then 'attach' the defendant, i.e. order him to find sureties 
 ('gages and pledges') to appear; and, if he refused, or broke 
 his pledges, could then by various degrees of seizure, distrain 
 him by all his lands and chattels to appear.^ But if these steps 
 proved unavailing, there was, apparently, no power to proceed 
 
 iS.C. 131. 
 
 ^ This was, probably, the origin of the jurisdiction in appeals from the Common 
 Pleas, which was exercised by the Court of King's Bench until the re-organization of 
 the Exchequer Chamber in 1830 (11 Geo. IV and 1 Will. IV, c. 70). 
 
 = Ante, p. 24. ^ S.C. 168-248. 
 
 * These various forms are given in the Registrum Brevium {Judicialium) of 1687, 
 at p. 1. In their somewhat later shape they may be seen in Blackstone Comm. Vol. 
 Ill, Appx. III.
 
 170 A SHORT HISTORY OF ENGLISH LAW 
 
 in the defendant's absence ; and the only thing to be done was 
 to go through the cumbrous and dilatory process of * outlawing ' 
 the defendant, after which, if he appeared in public, he could 
 be arrested by the Writ of Capias utlagatum. But the process 
 of outlawry was laborious and costly, involving no less than 
 five ' exactions ' at successive monthly County Courts, inter- 
 spersed with proclamations, before the issue of the Capias 
 utlagatum. 
 
 It was, in all probability, this helplessness of the Common 
 Pleas in the face of a contumacious defendant, that gave the 
 ^ . rival Courts of the King's Bench and Exchequer 
 their opportunity of stealing some of the business 
 normally belonging to the first-named tribunal. For these 
 latter courts, being specially concerned with enforcing the 
 King's claims, were armed with the powerful weapon of a Capias 
 ad respondendum, i.e. a writ directed to the sheriff, bidding 
 him arrest the defendant at once to answer the plea of our 
 Lord the King. For it was not to be tolerated, that a person 
 accused, for example, of force and arms against the King's peace, 
 should be allowed to defy the tribunal before which he was 
 called to account. 
 
 The King's Bench, therefore, if the plaintiff wished to enforce 
 a debt, offered him a cunning device. He issued a writ based 
 on a wholly fictitious trespass alleged to have been 
 committed by the defendant. This trespass, had it, 
 in fact, taken place, would have given the King's Bench genuine 
 jurisdiction ; for all Trespass, as has been said, involves, techni- 
 cally, a breach of the King's peace, and subjects the offender 
 to fine and imprisonment. But, as it had not, in the case sup- 
 posed, really taken place, and, moreover, was not the object of 
 the action, the plaintift' was allowed to add {'ac efiam') to his 
 claim in Trespass, a claim in Debt for his real demand ; and, 
 thus, as the action was nominally Trespass, the plaintiff could 
 secure the defendant's arrest by a Capias ad respondendum. 
 When the proceedings came before the court, the allegation of 
 a trespass was quietly dropped, and the case proceeded as though 
 the action had originally been in Debt. Thus the plaintiff 
 obtained the benefit of the superior process, while the Court of 
 King's Bench secured the profitable jurisdiction in Debt. But 
 a simpler expedient was soon devised.
 
 CIVIL PROCEDURE IN MIDDLE AGES 171 
 
 The right of the King's Bench to proceed in Debt on a Writ 
 of Trespass was based on the old estabhshed doctrine, that that 
 BUI of Court could take summary proceedings to regulate 
 
 Middlesex ^j^g affairs of all prisoners in the custody- of the King's 
 officers. Having been arrested for Trespass, the defendant was, 
 de facto, in the custod}' of the sheriff, and, therefore, came 
 within this principle. 
 
 But it was easier still, and less costly, to avoid the necessity 
 for the actual issue of a Writ of Trespass, and simply to assume 
 that the defendant was already in the custody of a royal officer. 
 This, of course, could only be done with the connivance of the 
 Court ; but, this connivance being secured, the plaintiff then 
 simply presented a petition or Bill, called an 'English Bill' 
 from the fact that it was in English (whereas a writ was in Latin), 
 and, more usually, a 'Bill of Middlesex,' from the fact that tl>e 
 King's Bench usually sat in Middlesex. This Bill stated/ that 
 the defendant was in the custody of the Marshal of the King's 
 Bench on a plea of Trespass within the verge,- and that the King 
 was petitioned to make him pay a debt due to the plaintiff. 
 Thereupon a precept was issued to the sheriff of Middlesex, 
 bidding him produce the defendant to answer to the plea of 
 Trespass ' and also ' (ac etiam) to the plea of debt ; and, in the 
 highly probable event of his not being found within the county 
 of Middlesex, a further writ, known as the Latitat, was issued 
 to the sheriff of the county where he was really believed to be, 
 or where, in the picturesque language of the writ, ' it is sufficiently 
 attested that the aforesaid R. lurks {latitat) and runs about.' 
 Thus the defendant would be arrested ; and the proceedings 
 would continue in the King's Bench. 
 
 The Exchequer acquired jurisdiction in ordinary cases by 
 an equally ingenious device. The normal process in the Ex- 
 The chequer was by ' suggestion,' or ' information,' i.e. 
 
 Quonunus giving notice to the royal officials of a possible claim 
 on behalf of the royal revenue. This process was apt to be 
 abused ; and, as will be seen later, ^ special precautions were 
 afterwards taken to prevent it being adopted as a means of 
 oppression. A particular variety of suggestion, however, known 
 
 > The form is given in Blackstone Comm. Vol. Ill, Appx. III. 
 
 * I.e. assault within the verge of the Court, a peculiarly heinous offence. 
 
 ' Post, pp. 335, 336.
 
 172 A SHORT HISTORY OF ENGLISH LAW 
 
 as the Writ of Qiiominiis,' seems to have been used for no more 
 harmful purpose than the acquiring of jurisdiction by the Court 
 of Exchequer in ordinary civil cases. The fiction was, that the 
 plaintiflF owed money to the King, and the defendant to the 
 plaintiff ; so that the delay of the defendant to pay the plaintiff 
 caused the latter to be in default to the King — 'whereby (the 
 plaintiff) is the less {quominus) able to satisfy Us the debts 
 which he owes Us in Our said Exchequer.' Here, too, as a claim 
 of the King was involved, arrest b}' the sheriff followed as a 
 matter of course ; and then the proceedings continued in the 
 Exchequer. 
 
 It is not to be supposed, that the Court of Common Bench 
 would peaceably stand by, and allow its monopoly to be in- 
 ' Ac Etiam' fringed in this glaring manner, without making an 
 Again effort to retaliate. Accordingly, that Court seems 
 
 to have claimed original jurisdiction in Trespass from a very 
 early date,^ and, also by means of an ' ac etiam ' clause, to have 
 allowed suitors to add to a plea of Trespass a claim of debt or 
 any other civil claim, ^ with the consequent advantage of being 
 able to secure the arrest of the defendant on mesne process. 
 No doubt at first the plaintiff also went through the form of 
 issuing the ordinary process of ' attachment ' and ' distringas ' 
 also ; but, as Blackstone informs us,^ these steps were ultimately 
 dropped, and the issue of the writ of summons (or 'original') 
 was followed immediately by that of a Capias ad respondendum. 
 It should be observed, also, that, by direct legislation, the power 
 of arrest on mesne process had been extended, in 1352, to the 
 actions of Debt, Detinue, and Replevin,^ and, in 1503, to the 
 comprehensive action of Case,^ which, as we have seen,^ by that 
 
 ' The form is given in Blackstone Comm. Vol. Ill, Appx. III. It seems to have 
 been founded on the practice described in Sect. XV of Part II of the Dialogue of 
 Exchequer (S.C. 237). 
 
 ' By Fitzhorbert's time Trespass lay indifferently in the King's Bench and the 
 Common Pleas (Natura Brevium, 86 I) ; and see the statement of Hale, C. J., in 
 his posthumous Discourse Concerning the Courts of King's Bench and Common Pleas, 
 reprinted in Hargravc's Law Tracts, Vol. I, p. 367. 
 
 ' Blackstone, Comm. Vol. Ill, 281. (Blackstone docs not quote any authority; 
 but his statement is borne out by the wording of the statute of 1661, to be de- 
 scribed in next period.) 
 
 * Ihid. 
 
 ^ 25 Edw. Ill, c. 17. Blackstone Comm. Ill, 281, says that it was also extended to 
 the action of Account, by the Statutes of Marlbridpo and Westminster the Second. 
 But the passages rjuoted do not bear out his contention. 
 
 « 19 Hen. VII, c. 9. ' Ante, pp. 136-148.
 
 CIVIL PROCEDURE IN MIDDLE AGES 173 
 
 time included the action on the simple contract, as well as many 
 actions of Tort, and which certainl}^ lay in the Common Bench. 
 Thus, not only did the three Common Law courts practically 
 acquire an identical jurisdiction in civil cases,^ but, incidentally, 
 the power of arrest on mesne process became firmly fixed as 
 a normal step in civil procedure. It was mitigated only by the 
 clause in a statute of 1444,^ which enacted that the sheriff and 
 other officers should let out of prison on 'reasonable' bail, all 
 manner of persons being in their custody by force of any writ, 
 bill, or warrant in any action personal. And even this mitigation 
 was soon severely restricted by evasions, which ultimately 
 established, that not merely 'common' or reasonable, but 
 Special 'special' bail might be demanded as of right for the 
 
 ■^ defendant's appearance in actions of Debt, Detinue, 
 
 Trespass to goods, or Case (other than slander), if the debt or 
 damages claimed exceeded twenty pounds, and that it might 
 be insisted on by the Court, at its discretion or on a specific 
 application, in other cases such as Covenant, Battery, Con- 
 spiracy, and False imprisonment.^ Apparently Slander (not 
 being 'slander of title,' which was not defamation at all, but an 
 ordinary action of Case) was the one instance in which 'special 
 bail' could not be exacted."* 
 
 The third great change in the civil procedure of this period 
 is the invention and gradual development of the action of 
 Ejectment. 
 
 As was previously pointed out, in dealing with the early history 
 of terms of years,^ the Writ of Ejectio Firmae was, originally, 
 Ejectio ^ mere variety of the great Writ of Trespass, and, 
 
 Firmae therefore, sounded in damages only, not in specific 
 
 recovery. As such, however, it remained, substantially, the only 
 
 1 It is clearly assumed by the statute of 1585 (27 Eliz. e. 9, s. 2) which made 
 appeals from the King's Bench lie to the Court of Exchequer Chamber, that actions 
 of Debt, Detinue, Account, and Case, as well as Ejectment and Trespass, even when 
 between private persons, are within the jurisdiction of the 'King's Bench.' (It is 
 odd that, even in Elizabeth's reign, the term 'King's Bench' is retained.) 
 
 2 23 Hen. VI, c. 9 (5). 
 
 ^ Rules and Orders for the Common Pleas, made in Michaelmas Term, 1654 
 (Cooke, Rules, Orders, and Notices, Sect. XII). Apparently this Rule was originally 
 made in 1582 (24 Eliz.). There was an exception when the defendant was sued 
 as heir or personal representative. 
 
 * This was, probably, because of its recent adoption from the ecclesiastical courts 
 (see ante, pp. 145, 146). 
 
 ' Ante, p. 90.
 
 174 A SHORT HISTORY OF ENGLISH LAW 
 
 remedy open to the lessee for years/ against a mere stranger, 
 until the middle of the fifteenth century; and, so long as its 
 original limitations remained, the lessee for years could hardly 
 be said to have an estate in the land. But, about the middle of 
 the fifteenth century,^ the Courts began to toy with the notion 
 that not merely damages, but the term itself (i.e. possession 
 of the land) could be recovered by the Writ of Ejectio Firmae. 
 In an important case, which came before both the Benches in 
 1467,^ for Debt on a lease made by a man and his wife, Catesby 
 and Fairfax, two eminent counsel who soon afterwards became 
 judges, argued without protest from the assumption that, in 
 an action of Ejectment, the plaintiffs could have recovered their 
 term. By the year 1481, the doctrine had become, apparently, 
 unquestionable ; for in that year we find it uttered by no less a 
 person than the Chief Justice of the King's Bench. ^ The first 
 actual decision, however, is said to have been in the year 1499, 
 when judgment was given in Ejectment, not only for damages, 
 but for the recovery of the house and appurtenances.^ Fitzher- 
 bert, who wrote in the first half of the sixteenth century, states 
 the new rule without hesitation f and by the second half of the 
 sixteenth century it was in full working order. ^ Thus the lessee 
 for years acquired full status as a tenant, and was able to recover 
 his term, both as against a stranger, as well as against the lessor 
 and the latter's feoffees.^ 
 
 But the action of Ejectment would not have fulfilled its 
 
 ' He had, of course, the remedy of Covenant and Quare Ejecit; and by those 
 could recover his term. But the Quare Ejecit only lay against the lessor and the 
 lessor's feoffee (Y.B. 19 Hen. VI (1440) fo. 56, pi. 19) ; and the Covenant only 
 against the lessor and his heirs, and when the lease was under seal. 
 
 ^ The doubt is mooted by Choke (afterwards a judge) in 1454 (Y.B. 33 Hen. VI, 
 p. 42, pi. 19). 
 
 3 Y.B. 7 Edw. IV, fo. 6, pi. 16. 
 
 ^Y.B. 21 Edw. IV, fo. 11, pi. 2. 
 
 ^ The case is not reported ; but a full copy of the pleadings, with a reference to 
 the record, is given in Rastell's Entries, at ff. 252-253. A suggestion has been made, 
 by Finlason, the editor of Reeve's History (III, p. 31 n.), that the dicta in the older 
 cases mentioned above have been misunderstood; and that the remedy of recovery 
 or the term is much older than 1499. But the case of 1499 was evidently regarded 
 as a leading authority ; and, if Bellewe may be trusted (p. 169), Sir Robert Belknap, 
 Chief Justice of the Common Pleas, in 1382, expressly stated it, as a matter of 
 general knowledge, and with the approval of the whole Court, that nothing but 
 damages could be recovered by a Writ of Ejectio Firmae. 
 
 ' Natura Brevium, 220 H (referring to the case of 1499). 
 
 ^ See, for examples, the cases reported by Dyer. 
 
 * It will be remembered that in the year 1529 the lessee had been given complete 
 statutory protection against fictitious recoveries suffered by his lessor (21 Hen. VIII, 
 c. 15).
 
 CIVIL PROCEDURE IN MIDDLE AGES 175 
 
 destiny, had it remained merely a remedy for lessees for years. 
 The important thing about it is, that it became, as we have said, 
 a general action to try title to land, not only for termors, but 
 also for freeholders. We have now to see how this result came 
 about. 
 
 In theory, of course, the freeholder was amply protected by 
 the numerous 'real' remedies at his disposal. Owing to the 
 
 care with which the Assises and the Writs of Entry ^ 
 the Real had been worked out, provision had been made for 
 ctions every possible case. But, apparently, early in the fif- 
 
 teenth century, these 'real' remedies had become unpopular, 
 statutes of Probably this result was due to their great technical- 
 Forcible ity, and the consequent danger of choosing the wrong 
 
 procedure. According to Sir Matthew Hale,^ they 
 were largely superseded in the later fifteenth century by proceed- 
 ings under the Statutes of Forcible Entry .^ These statutes were, 
 primarily, of a criminal character ; but the elaborate Act of 1429 
 provided ^ that the Justices should not merely punish the offender, 
 but should restore possession to the party grieved. Inasmuch as 
 this Act applied not merely to persons making forcible entry, 
 but to persons (wrongfully) entering without force and after- 
 wards holding possession by force, and inasmuch, moreover, as 
 it provided that if the ejected party chose to bring an Assise 
 or Trespass, he might recover treble damages against the offender, 
 it will be seen that a fairly complete remedy, of a summary 
 nature, was offered by the statutes to the ejected freeholder ; ^ 
 though it should be observed that, in the case of peaceable entry 
 forcibly held, the remedy on the statutes was barred after three 
 years. ^ 
 
 Possibly it was the last-named fact that rendered proceedings 
 
 under the Statutes of Forcible Entry ultimately un- 
 
 Fictitious popular, as the ' real ' actions had also become. At any 
 
 jectment ^^^^ j^ j^ clear that, just as proceedings under the 
 
 statutes were the favourite remedy for the recovery of land in the 
 
 ' Ante, pp. 49-51. ^ History of the Common Law (ed. 1794), p. 301. 
 
 ' 5 Ric. II, St. I (1381) c. 8; 15 Ric. II (1391) c. 2; 8 Hen. VI (1429) c. 9. 
 
 ^8 Hen. VI, c. 9, s. 3 (2). 
 
 5 8 Hen. VI, c. 9, s. 7; confirmed by 31 Eliz. (1589), c. 11. 
 
 ^ The benefit of the statutes was extended to lessees for years, copyholders, 
 guardians in chivalry, and tenants by Elegit, Statute Merchant, and Statute Staple, 
 by the 21 Jac. I (1623) c. 15. The decision in TaUarum's Case was given on an 
 entry against the statute of Richard II.
 
 176 A SHORT HISTORY OF ENGLISH LAW 
 
 sixteenth century, so the action of Ejectment was the favourite 
 remedy in the seventeenth. The machinery which adapted it to 
 the requirements of the freeholder was ingenious. At first, the 
 intending plaintiff made an actual entry on the land, to avoid 
 the risk of being proceeded against on a charge of Maintenance, 
 to which he would have been liable if he had attempted to aliene 
 whilst actually out of possession.^ His entry was only momen- 
 tary ; but, during its continuance, he handed a lease of the 
 premises to a person who had agreed to act as nominal plaintiff 
 in the action. The latter made entry upon the premises under 
 the lease, and thereby acquired an estate for years in the land. 
 He was then ejected, or ' ousted,' either by the genuine defendant, 
 or by a friendly person who had agreed to act as such. In the 
 former event, the nominal plaintiff immediately commenced 
 an action of Ejectment against the true defendant, founded on 
 the actual ouster. In the latter, he commenced it against the 
 fictitious defendant, or 'casual ejector.' In either event, the 
 validity of the lease to the nominal plaintiff necessarily came in 
 issue; and as this could not be lawful unless the claim of the 
 lessor (the real plaintiff) were valid, a judgment for the plaintiff 
 implied that the Court was in his favour. Only, it will be 
 observed, that such judgment merely affirmed the claimant's right 
 to grant the lease; and therefore, in theory, his title could still 
 be disputed on any ground that did not involve this right. 
 Thus, it might be argued, in a later proceeding, that the true 
 plaintiff had only an estate for life. But, in effect, the judgment 
 in Ejectment was treated as conclusive of title ; because the 
 plaintiff in that action took care to set up his full claim. ^ The 
 difficulty that, when the nominal defendant was only a ' casual 
 ejector,' the whole proceedings might be conducted without 
 the knowledge of the true defendant, was got over by a Rule of 
 Court, ^ to the effect that no judgment should be given against 
 
 > 32 Hen. VII (1540) c. 9, s. 2. This provision was not formally repealed until 
 1897 (Land Transfer Act, 1897, s. 11). There had been several earlier statutes 
 to a similar effect. 
 
 ' And Chancery would, probably, have granted an injunction against repeated 
 attempts to try the same title. 
 
 ' Messrs. Sedgwick and Wait, to whoso admirable Essay on Ejectment (Select 
 Essays in Anglo-American Legal History, III, PP- 611-645) all students of English 
 legal history are deeply indebted, say, that this Rule was made in 1662, and refer to 
 Cooke's well-known Rules and Orders. But the writer cannot 6nd the Rule there. 
 It is clear, however, that such a Rule was observed in practice before the close of 
 the period.
 
 CIVIL PROCEDURE IN MIDDLE AGES 177 
 
 a casual ejector ; unless due notice of the action had been given 
 to the actual tenant in possession of the land, to enable him to 
 offer a genuine defence, if he wished to do so. 
 
 In the event of the tenant in possession wishing to defend 
 the action, he was admitted as of course to do so, upon indemnify- 
 improve- "^» ^^^^ 'casual ejector' for his costs ; and, at first, he was 
 ment by then able to raise any objection to the form, though, pro- 
 bably, not to the genuineness, of the fictitious plaintiff's 
 story. Quite at the end of our present period, however, a great 
 saving of time and expense was eflfected by a practice, said to 
 have been introduced by Chief Justice Rolle, of compelling the 
 genuine defendant, as a condition of being allowed to defend, 
 to 'confess lease, entry, and ouster.' ^ These three proceedings 
 thereupon became really unnecessary, and were, in fact, omitted ; 
 being merely recited in the plaintiff's statement of his case, or 
 'Declaration.' Thus, in theory, every action of Ejectment was 
 between fictitious or, at least, nominal parties ; the proper title 
 being 'Doe on the demise of X (the true plaintiff) against Roe' 
 (the casual ejector) or, more shortly, 'Doe v. Roe' ; though, 
 for the sake of reference, the name of the real defendant was 
 often substituted in the report for that of the casual ejector. 
 
 Clumsy as it seems to modern eyes, this curious procedure 
 appears to have been the universal method of trying title to 
 land from the close of the present period, until the great reforms 
 of 1833 and subsequent years; in other words, for a period of 
 nearly two centuries. Not only did it take complete possession 
 of the Courts in England ; but, as we are informed,^ the name, 
 at least, of the action of Ejectment passed, with other institu- 
 tions of more value, to the English colonies in America, where, 
 however, the necessities of practical life, combined with the 
 stern Puritan dislike of fictions, soon caused great modification 
 in the forms used. 
 
 It is hardly possible to leave the period which ended at the 
 Restoration of Charles II, without saying a few words about 
 
 > The early stages of this practice may be traced in a Note in Style's Reports (p. 
 368) under the year 1652. The difference between the Upper (or King's) Bench and 
 the Common Pleas should be noted. Manifestly, the action could be brought in 
 either Court. By the end of the seventeenth century, the admission of the true de- 
 fendant by the 'consent rule' had, apparently, become universal {The Pradick Part 
 of the Law, 3d ed. 1702, p. 156). 
 
 " By Messrs. Sedgwick and Wait, in the Essay before alluded to (Select Essays in 
 Anglo-American Legal History, III, pp. 611-645).
 
 178 A SHORT HISTORY OF ENGLISH LAW 
 
 one of the most remarkable documents in English legal his- 
 tory which dates from the close of that period, 
 the Little The ' Little ' or ' Barebones ' Parliament, summoned 
 ar amen ^^^ Oliver Cromwell to meet at Westminster on 4th 
 July, 1653, after the dissolution of the remains of the Long 
 Parliament, may have been an unpractical bod}', so far as the 
 task of administration in troublous times was concerned. But it 
 seems quite possible that the wealth of contumely and scorn 
 which has been poured upon it was, originally, due quite as 
 much to the fierce anger of vested interests against outspoken 
 criticism, as to any real vagueness or want of practical wisdom 
 in the plans of the House itself. At any rate, the scheme of 
 reform prepared by the Committee 'to consider of the Licon- 
 venience. Delay, Charge, and Irregularity in the Proceedings of 
 the Law,' and ordered to be printed on 12th July, 1653,^ reads 
 like a revelation of the future ; and if it be really true that it 
 was prepared in the course of a week, even with the assistance 
 of eminent lawyers outside the House, it is a striking testimony 
 to the capacity, or at least to the intelligence, of those members 
 of the House who adopted it. For, of the long series of changes 
 which it recommends, more than two thirds have since become 
 law, practically in the shape forecast by the Committee ; and, 
 if it appears somewhat out of place to give a brief account of 
 this scheme at the end of a chapter on Civil Procedure, it will 
 probably be admitted, that no more fitting place for it could 
 be found than between the close of the period of which it was, 
 in a sense, the final act, and the commencement of that in 
 which, after long delay, so many of its proposals were at last 
 adopted. 
 
 After a brief preamble, in which the Committee proposes to 
 abrogate fines on the commencement of ci^■il proceedings, the 
 Marriage scheme proceeds to a draft of a measure of marriage 
 ^^^ law reform, which recommends the establishment 
 
 of a system of registries in which notices of intended marriages 
 shall be given, as essential preliminaries of valid celebration. 
 Then follows a proposal for universal civil marriage, not before 
 the registrar, but before a Justice of the Peace. Not only 
 marriages, but births and deaths, are to be entered in the local 
 register. No person under twenty-one is to marry without the 
 
 > It will be found in full in the Somers Tracts, Vol. VI, pp. 177-245.
 
 CIVIL PROCEDURE IN MIDDLE AGES 179 
 
 consent of parents or guardian ; and the age of consent is fixed 
 at seventeen for men and fifteen for women. 
 
 The Marriage Bill, the proposals of which, as will have been 
 noticed, have only b en partially realized, is succeeded by the 
 Fines and draft of an Act for the suppression of extrajudicial 
 Recoveries oath, and, immediately afterwards, by another of 
 an Act for cutting off entails and providing for 'acknowledg- 
 ments' in conveyances by married women. This draft, which 
 most strikingly resembles the measure actually passed into 
 law with the same object nearly two centuries later, ^ was framed, 
 of course, with the object of abolishing the costly and cumbrous 
 conveyances known as Fines and Recoveries.^ It concludes 
 with certain useful provisions on the subject of the liability of 
 lands for payment of their deceased owner's debts, which had, 
 likewise, to wait nearly two centuries for their realization. 
 
 This remarkable draft is succeeded by a short Bill for ascer- 
 taining 'arbitrary' fines on copyholds, which, unfortunately, 
 has never been passed, a second for abolishing certain technical 
 details in the law of tenure which made it difficult to transfer 
 reversions,^ and a third, excluding members of Parliament from 
 acting as counsel on private lawsuits during the session, and 
 Small Debts regulating pleaders' fees. Then follows a wide 
 Courts scheme for the establishment of Small Debts courts 
 
 throughout the country, under lay Commissioners appointed 
 jointly by the Grand Jury and Justices of the Peace in each 
 county ; a scheme which was carried out piecemeal by the 
 erection, usually by private Acts of Parliament, of local Courts 
 of Requests during the eighteenth and early nineteenth centuries, 
 and, more effectively, by the later County Courts Acts. 
 
 After this come short Bills for making void voluntary con- 
 veyances as against creditors, for recovery of debts owing by 
 corporations, and for enabling debts, or ' choses-in-action ' to 
 be assigned ; interspersed with more distinctly Puritanic pro- 
 posals for prohibiting traffic in offices, duels, bribery, drunken- 
 ness, swearing, and Sabbath-breaking. Many, though not all, 
 of these proposals have since been carried into effect. 
 
 The draft code, for such in effect it is, concludes with a thorough 
 
 1 3 & 4 Will. IV (1833) c. 74. ^ Ante, pp. 112-119. 
 
 ' Some of these recommendations were carried into effect in the eighteenth 
 century by the Act for the Amendment of the Law (4 & 5 Anne (1705) c. 16, s. 9), 
 and the Landlord and Tenant Act, 1730.
 
 180 A SHORT HISTORY OF ENGLISH LAW 
 
 overhauling of the machinery of legal procedure, judicial and 
 Procedural extra-judicial, treated under jfive heads. Under the 
 Reforms first, whicli deals with conveyancing, the Committee 
 proposes to set up a universal Register of Titles, in which every 
 incumbrance affecting land, and every conveyance dealing with 
 Register it, is to be entered. As is well known, the latter of 
 of Titles these objects was partially achieved in the early 
 eighteenth century, by the establishment of county registers 
 in Yorkshire and Middlesex ; ^ while general registers of judg- 
 ments, executions, and other incumbrances were set up under 
 p various statutes ranging from the Revolution to the 
 
 end of the nineteenth century. Under the second 
 head, the whole scheme of the probate of wills and administra- 
 tion of estates is to be removed from the jurisdiction of the 
 ecclesiastical courts, and transferred to county officials, acting 
 under the control of the county jurisdictions proposed to be set 
 up for the conduct of higher civil litigation. 
 
 Under the third, a drastic reform of Chancery procedure, 
 and under the fourth, of that of the Common Law courts, is 
 Chancery proposcd ; and, though these are, in many respects, 
 mon Law ^'^^ technical for discussion here, it may be stated 
 Procedure broadly that, while some of their more moderate 
 suggestions were, almost immediately, brought into operation 
 by Regulations issued by the Keepers of the Great Seal and the 
 common Law Judges,^ the whole course of procedural reform 
 during the last two centuries has been in the direction indicated 
 by their proposals. These proposals are by no means confined 
 to procedure in the strict sense ; but comprise suggestions for 
 the abolition of survivorship in joint-tenancy (especially among 
 partners), the recognition of the right to bar dower, the power 
 of excluding the principle of merger, by which a smaller and a 
 larger im-mediately succeeding interest cannot be separately 
 held by the same person in the same land, the abolition of ' col- 
 
 1 2 & 3 Anne (1703) c. 4 (Yorkshire) ; 7 Anne (170S) c. 20 (Middlesex). 
 
 2 A great reforming Order for the Common Bench was issued directly after 
 the fall of the Little Parliament. It is given in Cooke's Rules Ac. in the Common 
 Pleas (not paged). The Chancery reforms were longer in arriving; but a com- 
 prehensive set of Orders was issued l)y Lord Clarendon (Chancellor) and Sir Har- 
 hottle Grimston (Master of the Rolls) shortly after the Restoration. These 
 were published separately by Pawlet in 1GG9; and are included in the general 
 collection of Rules and Orders in the High Court of Chancery, issued by Worrall in 
 1739.
 
 CIVIL PROCEDURE IN MIDDLE AGES 181 
 
 lateral warranties,'^ the admission of the half-blood heirs to 
 inheritance, and the modification of the rule of primogeniture. 
 In no direction, however, is the foresight of the Law Com- 
 mittee of the Little Parliament more strikingly vindicated. 
 Criminal than in its proposals for the reform of criminal pro- 
 Procedure cedure. It proposed to substitute for the barbaric 
 peine forte et dure ^ a simple admission of guilt,^ to allow prisoners 
 to be defended by counsel (at least when counsel appeared 
 against them), and to have their witnesses examined on oath, 
 to abolish all penalties when death occurred by misadventure,^ to 
 modify the feudal doctrine of corruption of blood by attaint 
 of felony, to set convicted thieves to work with the object of 
 compensating the persons from whom they have stolen, to do 
 away with the capital punishment of burning,^ to make com- 
 pensation to poor prosecutors for loss of time and trouble, and, 
 in the case of a few most serious crimes, to reward persons 
 coming forward to prosecute ; finally, to make provision for 
 the spiritual needs of prisoners in gaol.^ Incidentally, it dis- 
 posed, in a sentence of four lines, of a question which, even to 
 the present day, is in a state of disgraceful uncertainty, viz. 
 the question whether a person who has suffered loss by the 
 felonious conduct of another, may bring a civil action for redress 
 before criminal proceedings have been taken. Historically, 
 as we have seen,^ there was much justification for the doubt; 
 practically, the question could be settled satisfactorily at any 
 time by a single section of an Act of Parliament. And we have 
 waited, in vain, two centuries and a half for its enactment ! 
 
 » Ante, p. 112. ' Ante, p. 51. 
 
 ^ The modern practice, as will appear, is to substitute a plea of 'not guilty,' 
 which requires a trial. 
 
 * One of the most curious survivals in English law was that of the 'deodand,' 
 or article which caused death by misadventure. Thus, if a man was killed by a 
 falling beam, it was the duty of the coroner's jury to find the value of the beam, 
 in order that the Crown might claim it as a forfeiture. In spite of the recommenda- 
 tion of the Little Parliament, deodands were not formally abolished until 1846 
 (9 & 10 Vict. c. 62). 
 
 ^ This, practically, was confined to women convicted of treason, high or petty. 
 
 ^ It must not be supposed, however, that the Committee showed itself to be 
 entirely free from the superstitions of its age or the special defects of Puritanism. 
 The punishment of death is freely distributed; and mutilation of the face and 
 head is prescribed for perjury. But the sense of mercy, as well as of justice, shows 
 itself in the proposal to abolish the death penalty for horse-stealing and pocket- 
 picking, and in the provision that no accused person shall be called upon to pay 
 any fee until conviction, and no acquitted person at all. 
 
 ' Ante, pp. 155, 156.
 
 182 A SHORT HISTORY OF ENGLISH LAW 
 
 All the procedural reforms projected by the Committee were 
 accompanied by a rigid tariff of fees, issued with the object 
 of reducing the cost of legal proceedings ; and it may be 
 Failure of ^^^^ ^^^^ hostility aroused by its Report, and the obliv- 
 the Report ^qj^ j^^q which it soon fell, were due, more than to any 
 other cause, to the official hostility aroused by this feature. 
 Whatever the cause or causes, the fact remains that, after a few 
 spasmodic efforts at reform in the reigns of William and his 
 immediate successor, of which some account will be given in their 
 proper order, Parliament settled down, so far as legal questions 
 were concerned, to the almost unbroken slumber of the eighteenth 
 century, and the first quarter of the nineteenth. Then indeed, 
 as we shall see, law reform came like a river ; and has never 
 since ceased to flow. As has been previously said, the almost 
 complete failure of the scheme of the Little Parliament is generally 
 attributed to its unpractical character. But it is difficult to 
 suppose that suggestions which have, almost unconsciously, 
 been adopted by the most enlightened reformers of modern 
 times, could ever have been really unpractical. It is far more 
 likely, that the profound hostility produced by the more extreme 
 manifestations of the Puritan movement re-acted against the pro- 
 posals of the wiser and better members of the party, and con- 
 demned them to two centuries of ostracism.
 
 PERIOD IV 
 
 THE RESTORATION TO THE PRESENT DAY 
 1661-1911
 
 AUTHORITIES 
 Statutes of the Realm. 
 
 Statutory Rules and Orders (prior to 1890 
 revised, afterwards in full). 
 
 Reports of judicial decisions (see post, 
 pp. 190-195). 
 
 Rules and Orders of the Supreme Court 
 (annually published with full notes). 
 
 Books of Entries (see p. 197). 
 
 TEXT-BOOKS 
 
 Blackstone. Commentaries on the Laws 
 of England (Clarendon Press, 1765). 
 [This work has been re-edited from 
 time to time ; and its best known 
 form is that now appearing under 
 the name of the late Judge Stephen 
 (Butterworth, 15th edition, 1908) .] 
 
 Bowen, Lord. Progress . . . in the Vic- 
 torian Period (Select Essays in Anglo- 
 American Legal History, I, 516-557). 
 
 Dicey, A. V. Law and Public Opinion 
 in England (Macmillan, 1905). 
 
 Scrutton, T. E. History of the Law Mer- 
 chant (Select Essays in Anglo-Amer- 
 ican Legal History, III, 7-15). 
 
 Stephen. History of the Criminal Lawl 
 of England, chapters xi-end (Mac- 
 millan, 188.3, 3 vols.). 
 
 Underhill, A. Changes in the Law of Real 
 Property (Select Essays in Anglo- 
 American Legal History, III, 673- 
 719). 
 
 Veeder, Van V. A Century of English. 
 Judicature (Select Essays in) (Anglo- 
 American Legal Plistory, I, 730-836). 
 The English Reports, 1537-1865 
 (Select Essavs in Anglo-American 
 Legal History, II, 123-168). 
 
 Wilson, Sir R. K. History of Modern 
 English Law (Rivingtons, 1875).
 
 CHAPTER XIII 
 
 MODERN AUTHORITIES AND THE LEGAL 
 PROFESSION 
 
 THE process of specialization tends, almost inevitably, to 
 narrow the sources from which the rules of any science 
 are drawn ; and English law is no exception from this 
 rule. We have seen that, in its earlier stages, judges and lawyers 
 borrowed freely from all sorts of authorities which appeared 
 to have any bearing on the subject under discussion. Ancient 
 customs, maxims of the wise, royal decrees, oflBcial regulations, 
 text-books, even foreign systems such as those of the Corpus 
 Juris Civilis and the Corpus Juris Canonici, were called in aid; 
 no less than Acts of Parliament and formal judicial decisions. 
 
 So long as such practices prevailed, the liberty of choice 
 open to a tribunal, and the doubt prevailing as to the com- 
 parative weight of these rival authorities, must have left much 
 to the discretion or idiosyncrasy of the Court in each case. 
 Parliament- ^^^^ ^^^^ ^^ ^^^^ great changes which took place in 
 ary Sov- the last century of the period last considered was the 
 rapid sweeping away of all rival authorities, and the ulti- 
 mate concentration of the power of the State in the King in 
 Parliament. In the earlier stages of the struggle, indeed, it 
 seemed as though the Crown would emerge sole victor ; but 
 the effect of the Civil War was to bring about a compromise, 
 in which sovereign authority ultimately vested, not in the 
 Crown alone, nor in the Houses alone, but in the Crown and 
 Parliament acting together. And, though subsequent develop- 
 ments have shown that, when the sovereign is a composite 
 body, there may, and, indeed, generally will, be a struggle for 
 supremacy within that body itself, yet, for legal purposes, the 
 verdict of the Civil War, which decided the sovereignty to be 
 in the Crown and Parliament, is still undisturbed. At the 
 present day, the only ultimate source of law is the King in 
 Parliament ; though, by force of a tradition which is older than
 
 186 A SHORT HISTORY OF ENGLISH LAW 
 
 Parliament itself, the Crown, within certain well-defined limits, 
 and the Courts, within limits less well defined, still exercise 
 their ancient prerogative of declaring, formulating, and, we 
 might almost say, making, new law. No one doubts, however, 
 that the action of the Crown and of the Courts in this respect 
 is liable to be overruled by the action of Parliament ; and, in 
 fact, not a few modern statutes have been passed expressly for 
 the purpose of altering the law as laid down by judicial decisions. 
 
 Obviously, therefore, the chief authority for the law of the 
 period we are now approaching is the Statute Book; and a 
 Acts of glance at the shelves of any law library will show 
 
 Parliament j^q^^ enormously this source of authority has increased 
 in bulk in recent years. Roughly speaking, the whole of the 
 public statutes passed in the period which lasted from the 
 birth of Parliament, in the late thirteenth century, dow^n to the 
 restoration of Charles II (a period of about 400 years) occupy 
 less than three quarto volumes in the common edition of the 
 Statutes at Large. The statutes from 1660 to 1868 (a period 
 of about half that length) occupy rather more than forty-three 
 volumes of the same edition. Of this vast bulk, as well as of 
 the numerous Acts of Parliament passed since 1868, every word 
 which has not been expressly or by implication repealed by 
 a later statute, is binding law of the highest authority. What- 
 ever doubts may have existed in the mind or language of Coke 
 and his contemporaries, with regard to the limits of Parliamen- 
 tary authority, disappeared in the Civil War ; and Blackstone, 
 no worshipper of representative institutions, in his immortal 
 work,^ fully, though not without reluctance, accepts the doctrine 
 that, however apparently absurd and unjust an Act of Parlia- 
 ment, yet if the words are clear, 'there is no court that has 
 power to defeat the intent of the legislature.' 
 
 Happily for the student of existing law (though the historian 
 is less relieved by the practice). Parliament freely, and, of 
 recent years systematically, by means of Statute Law Revi- 
 sion Acts, has repealed much of its former enactments ; and a 
 convenient edition of The Statutes Revised, issued by the Statute 
 Law Revision Committee, enables the practitioner to distinguish 
 readily between dead and living statutes. Be it observed, 
 also, that though the ipsissima verba of an unrepealed statute 
 
 1 Comm., Vol. I, p. 91.
 
 MODERN AUTHORITIES 187 
 
 are binding, even on the Crown if the Crown be expressly named 
 therein, it is not permissible for legal purposes, to go behind 
 a statute to the discussions in Parliament which preceded its 
 passing.^ This tempting addition to the possibilities of forensic 
 argument has always been sternly repressed by the Courts, 
 which have also laid it down, that the side notes usually appear- 
 ing in the authoritative or King's Printer's editions of the 
 statutes, are of no authority, even for the interpretation of a 
 statute.^ On the other hand, the preamble, and the title, are 
 now parts of a statute ; ^ and are, indeed, often valuable guides 
 to the policy of the enactment. 
 
 Midway between purely Parliamentary and purely judicial 
 legislation, come the various Orders in Council, Proclamations, 
 Orders in and other formal legislative and administrative 
 °^^^ enactments issued by the executive authority in 
 
 the State. These are capable of simple and instructive classi- 
 fication. In the first place, they are either (a) prerogative 
 p . or (6) issued under Parliamentary authority. The 
 
 former, now rare in number, were at one time, as 
 every student of English Constitutional History knows, the 
 source of much debate and feeling. They played no incon- 
 siderable part in the differences of opinion which led to the 
 Civil War; they were conspicuous in the Revolution of 1688. 
 The net result of those two important events is : (1) That any 
 purely prerogative Order or Proclamation inconsistent with or 
 derogating from the express terms of an Act of Parliament, is 
 wholly void; but, (2) that, subject to this rule, the Crown's 
 ancient rights, in so far as they have actually been exercised 
 with fairly definite continuity, still remain. In fact, a certain 
 number of Prerogative Orders are from time to time published.^ 
 But, even where the rights still exist, as, for example, in the 
 case of the government of the navy, the army, and the ' Crown 
 Colonies,' and the summoning and dissolution of Parliament, 
 
 > For a recent statement of this rule, see R. v. West Riding C.C. [1906] 2 K.B. 
 at p. 716. Of course the rule does not prevent consideration of the circumstances 
 which led to the passing of a statute. 
 
 2 This at any rate was the older view. But it appears that the recent (but not 
 uniform) practice of printing the marginal notes on the Parliament Roll, has given 
 rise to some doubts (Sutton v. Sutton (1882) 22 Ch. D., at p. 513). 
 
 ' Income Tax Commrs. v. Pemsel [1891] A.C., at p. 543 (preamble) ; Fielding v. 
 Morley {Corpn.) [1899] 1 Ch., at pp. 3, 4 (title). 
 
 * They now appear as an Appendix to the Statutory Rules and Orders. This 
 has been the practice since 1893.
 
 188 A SHORT HISTORY OF ENGLISH LAW 
 
 they are often now exercised under express Parliamentary 
 authority — a fact which much diminishes their 'prerogative' 
 character. It is, also, highly improbable, that any exercise 
 of this prerogative authority in new directions would now be 
 tolerated by Parliament ; even though that exercise did not 
 conflict with the express provisions of an Act of Parliament. 
 
 The second, and far larger group, of Executive 'Orders' 
 which, in their operation, resemble Acts of Parliament, are 
 Pariia- tliose which are made under the express authority 
 
 mentary ^f Parliament. Owing partly to the necessity for 
 leaving the application of discretionary legislation to the Execu- 
 tive, but still more to the impossibility of discussing details 
 in an overworked Parliament, it has become increasingly common 
 for Parliament to delegate, either to the Crown (i.e. the Execu- 
 tive as a whole) or even to the jMinister at the head of the de- 
 partment charged with carrying out the Act, the power of 
 making Rules or Orders under it. These Rules and Orders 
 are, in effect, so long as they keep within the authority pre- 
 scribed by their respective Acts, themselves Parliamentary 
 statutes, and are enforced by the Courts as such. It is, of 
 course, in theory, possible to raise against any of them the 
 plea of ultra vires; but they are usually drawn with sufficient 
 skill to render such an attack hopeless. They are now pub- 
 lished periodically by royal authority ; ^ and their bulk bids 
 fair soon to rival that of the Statute Book. Like the statutes, 
 they are also periodically revised by authority. The difference 
 between Orders made by the Crown in Council and those made 
 by a single Minister, is more apparent than real. For, in the 
 former case, as in the latter, the form and contents are virtually 
 settled by the departments concerned ; the approval by the 
 Privy Council is a pure formality. 
 
 Technically on the same legal footing as the modern Statutory 
 Orders in Council, but in fact, and historically, inclining some- 
 Rules and what heavily towards judicial legislation, are the 
 Orders of various Rules and Orders affecting the practice of the 
 Courts, which have from time to time been published. 
 These go back for a long period in English legal history ; and it 
 is impossible, without further research into the archives of the 
 fourteenth century, to state definitely when they began. Among 
 
 ' Pursuant to the Rules Publication Act, 1893, s. 3.
 
 MODERN AUTHORITIES 189 
 
 the oldest are the General Orders (as distinct from decrees 
 affecting only particular cases) made by the Chancellors for the 
 regulation of Chancer}' procedure ; and it may have been that, 
 until this example of prerogative legislation had been set by the 
 holders of the Great Seal, the judges of the Common Law 
 courts did not venture to exercise similar powers. At any rate, 
 while the known Chancery Orders go back to 1388,^ the oldest 
 Common Law Rules (viz. those of the Common Pleas) - date 
 only from 1457 ; but the oldest of these latter refers clearly 
 to still older Rules, which seem to have disappeared. The 
 oldest published Rules of the King's Bench appear to be of 
 1604;^ but it is more than probable that these are not in fact 
 the first made. The oldest Exchequer (Plea) Rules known to 
 the writer date from 1571 ; but these were issued by the Lord 
 Privy Seal, not by the Barons.'* Other Exchequer Orders, 
 undated, were published in 1698.^ 
 
 As has been suggested, these Rules and Orders appear to 
 have been for long issued by the Chancellor and Justices on 
 their own responsibility, as controllers of the business of their 
 courts ; and, so long as they stood in that position, they be- 
 longed entirely to the judicial branch of legal authority. But, 
 as with the Crown, so with the judges. Parliament began 
 to look with more and more jealousy on any rival in the busi- 
 ness of legislation ; and, as it was clearly advisable not to with- 
 draw in fact from the judges the very necessary function of 
 issuing Rules of Practice, Parliament, in the first half of the 
 nineteenth century, began definitely, as in the case of the Crown, 
 to authorize the judges to exercise it. A beginning was made 
 with the Civil Procedure Act, 1833,'' which authorized any 
 eight of the Common Law judges (including the three Chiefs) 
 to make Rules for the reform of pleading ; and the step, having 
 
 1 These are collected in Orders of the High Court of Chancery, by G. W. Sanders 
 (Chief Secretary at the Rolls), and published in 1845 (Maxwell). 
 
 2 The Rules and Orders of the Common Pleas, from 1457-1743, were published 
 anonymously in the latter year (Lintot) ; but an earlier collection, from 1457 to 1741, 
 was annexed to Sir George Cooke's Reports and Cases of Practice in the Court of 
 Common Pleas, published in 1742. 
 
 ' Published by the anonymous compilers of the Rules of the Common Pleas, and 
 bound up with them in the edition of 1747. 
 
 * These Orders were confirmed by statute in 1604 (1 Jac. I, c. 26). 
 
 ^ These Orders are bound up with the Ordines Cancellariae of 1698. They deal 
 chiefly with Equity business. 
 
 « 3 & 4 WiU. IV, c. 42, s. 3.
 
 190 A SHORT HISTORY OF ENGLISH LAW 
 
 been found beneficial, was repeated, with wider reach, in the 
 year 1850.^ These two statutes, which were temporary in 
 their effect, were incorporated, with many additional powers, 
 into the Common Law Procedure Acts of 1852 and 1854.- Mean- 
 while, in the year 1850, a similar provision, with a limited 
 scope, had been introduced into the Chancery Amendment 
 Act of that year;^ empowering the Chancellor, with the con- 
 currence of the Master of the Rolls and one of the Vice-Chancel- 
 lors, to make General Rules and Orders for carrying out the 
 objects of the Act. Li the Chancery Amendment Act of 1858, 
 this power was extended to cover virtually the whole procedure 
 of the Court ; '^ the Rule-making body being enlarged to include 
 the newly created Lords Justices of Appeal in Chancery. Under 
 this power, the great Consolidated Orders of 18G0 were issued ; 
 and thus the way made easier for the reform undertaken by the 
 Judicature Act of 1873. An account of this measure must be 
 reserved for a future chapter ; ^ here it is sufficient to say, that 
 it contains provision ^ for a judicial Council consisting of the 
 judges of all the tribunals incorporated into the new Supreme 
 Court of Judicature, with powers to issue Rules and Orders 
 regulating the practice of all branches of the Court. This 
 power has been full}' and constantly exercised ever since the 
 Judicature Acts came into force in 1875 ; and now the Rules 
 and Orders of the Supreme Court, annually republished with 
 copious notes and comments, are as necessary for the practitioner 
 as the Statutes of the Realm or the Law Reports. 
 
 Mention of the Law Reports brings us naturally to the last 
 of the great sources of legal authority at the present day. We 
 Judicial have seen '^ that the doctrine of judicial precedent 
 had been fully established in the preceding period, 
 through the agency of the Year Books, those anonymous com- 
 pilations in which the decisions, and even the dicta, of the Courts 
 
 > 13 & 14 Vict. c. 16. 2 Act of 1852, ss. 223-225; Act of 1854, ss. 97-98. 
 
 ' 13 & 14 Vict. c. 35, ss. 30-32. « 21 & 22 Vict. c. 27, ss. 11-12. 
 
 ' Post, pp. 364-371. 
 
 * 36 & 37 Vict. c. 66, ss. 68-74, repealed before coming into operation by s. 33, 
 and replaced by ss. 17-21 of the Judicature Act, 1875, itself subsequently amended by 
 B. 17 of the Appellate .Jurisdiction Act, 1876, and by s. 19 of the .Judicature Act, 
 1881. The present authority is the Judicature (Rule Committee) Act, 1909, by 
 virtue of which statute the Rule Committee now includes (in addition to eight 
 judges) two members of the General Council of the Bar, one member of the Coun- 
 cil of the Law Society, and one other solicitor. 
 
 ' Ante, pp. 78, 79.
 
 MODERN AUTHORITIES 191 
 
 were stored up, by unknown hands, for reference and quota- 
 tion in the argument of cases. We have seen also, how these 
 anonymous reports gave way, in the middle of the sixteenth 
 century, to the nominate works of Dyer, Leonard, Plowden, 
 Coke, Croke, and others.^ Nor can there be any serious doubt 
 that, with due allowance for the somewhat lax canons of criti- 
 cism which prevailed until a recent date, it was fully admitted 
 before the end of the last period, that a decision of a Court 
 of co-ordinate or highdr jurisdiction was binding on its successors 
 and inferiors. Probably, too, the three superior Courts of 
 Common Law, though technically independent of one another, 
 respected one another's decisions ; while, if there was no inter- 
 change of authority between the Common Law and the Equity 
 tribunals, this was because, in theory at least, there could be 
 no common ground between them. 
 
 The flow of nominate reports continued with unabated vigour 
 after the Restoration ; the only official restriction on the output 
 The ' Au- ®^ rival volumes being that imposed by the Licensing 
 thorized^ Act of 1662. With this statute, which plays an impor- 
 tant part with the history of copyright, we shall have 
 to deal in a later chapter.^ Here it is sufficient to say that, 
 by its provisions, all law books required the license of the Lord 
 Chancellor or one of the Chiefs of the superior Courts of Common 
 Law ; and whoever is familiar with the Reports of the later 
 seventeenth century in the original editions will recognize the 
 solemn Imprimatur prefixed so conspicuously to them, and 
 will note also, that the prudent reporter did not confine himself 
 to the express directions of the Act, but took care to get the 
 signatures of as many as possible of the judges of the tribunals 
 whose decisions he reported. 
 
 It is a curious testimony to the conservatism of the legal 
 profession, that, long after the refusal of Parliament, in 1695, 
 to renew the Licensing Act, it continued to be the practice of 
 the reporters to obtain judicial authority for their efforts. The 
 volumes of Vernin, Levinz, and Lutwyche, all published after 
 1695, are still adorned by the judicial license ; and, long after 
 the formal license had disappeared, the race of ' authorised 
 
 1 The older tradition of anonymity lingered in the publications known familiarly 
 as Reports in Chancery, Cases in Chancery, and Equity Cases Abridged. But these 
 were, in some cases at least, mere abstracts of nominate reports. 
 
 " Post, pp. 277, 278.
 
 192 A SHORT HISTORY OF ENGLISH LAW 
 
 reporters' continued to flourish. It must not be supposed, 
 however, that the judicial Hcense or authority afforded any 
 official guarantee of the accuracy of the reports which it adorned. 
 Save for a very small exception, hereafter to be noticed, there 
 never has been in England any official publication (in the strict 
 sense) of law reports. But it was well understood that the 
 'authorised reporters' enjoyed in a special way the favour of 
 the courts to which they were attached ; and it is obvious to 
 every lawyer that judge and reporter, if harmonious, could 
 be useful to one another in many ways which would tend to 
 improve the quality of the reporter's work.^ 
 
 It was not until the beginning of the nineteenth century that 
 there was any apparent break in this individualist system. 
 Anonymous ^^t from the year 1823 onwards, and at frequent 
 Series intervals, there appeared, usually as a publisher's 
 
 enterprise, a series of anonymous, or, at least, quasi-anonymous 
 reports, the chief raisons d'etre of which seem to have been the 
 length and prolixity of the 'authorised' reports, and the delay 
 w^hich occurred in their appearance. The first of these series 
 was the Law Journal Reports, which, with a literary supplement 
 entitled The Law Advertiser (afterwards known as The Law 
 Journal), made its appearance in 1823, and continues to flourish 
 to the present day.^ It was followed by the Jurist, which, 
 starting as half magazine, half gazette, in 1837, became, from 
 1841 till its decease in 1866,^ purely a reporter. iVlmost con- 
 temporaneously with the Jurist, viz. in 1837, appeared The 
 Justice of the Peace, a combination of magazine and reporter 
 which, as its name implies, deals exclusively with magisterial 
 business. The decisions reported by it are, however, not, 
 as might be rashly supposed, those of the Justices of the Peace, 
 which are, of course, of no judicial authority, but of the superior 
 Courts reviewing magisterial decisions, or deciding on matters 
 of special interest to Justices. 
 
 ' Useful information regarding the various nominate reporters will be found in 
 Wallace's The Reporters Arranoed and Characterized (4th edn. Boston, U.S.A., 1882). 
 A summary of dates and chronological lists under the various Courts will be found in 
 a handy form in Sweet & Maxwell's Lawyers' Reference Book (1907), and Stevens & 
 Haynes' Alphabetical Catalogue of the Reports of Cases (1875). These little works 
 contain also lists of abbreviated citations, regnal years, &c., which will be found 
 indispensable to the student of legal history. Soule's Lawyer's Reference Manual 
 (Boston, U.S.A., 1883) is a larger work with similar objects, which includes the 
 American reporters. 
 
 * A 'New Series' began in 1832. ' A 'New Series' began in 1855.
 
 MODERN AUTHORITIES 193 
 
 Then came the Law Times in 1845, at first with reports and 
 general matter mixed, but, since the commencement of its 
 'New Series' in 1859, in separate volumes. It still flourishes. 
 The Weekly Reporter, first published in 1852, with a view of 
 giving brief and speedy notes of current decisions, was incor- 
 porated in 1857 into the newly-founded and still flourishing 
 Solicitors' Journal and Reporter. Finally, in 1884, commenced 
 the excellent series of Times Law Reports, which, published weekly 
 during the sittings of the Courts, give a rapid and yet careful 
 account of current legal business, and, also in 1884, the solitary 
 example of official law reporting known to English legal history, 
 viz. the Reports of Patent Cases, issued as a supplement to The 
 Journal of the Board of Trade. But the greatest event in the 
 modern history of English law-reporting has, undoubtedly, 
 been the foundation, in the year 18G4, of the series known as 
 The Law Reports. 
 
 It appears from the interesting account of this movement, 
 written by Mr. Daniel,^ one of its most active promoters, that 
 The ' Law ^^^^ multiplicity, inconsistency, want of authen- 
 Reports' tlcity, delay, and expense of the many competing 
 reports published in the middle of the nineteenth century, had 
 for some time given rise to a feeling in favour of reform. The 
 difficulties in the way were obvious. Not merely did the whole- 
 some independence of the English Bar react strongly against 
 any proposals for an official system ; but the subject bristled 
 with vested interests (always tenderly regarded by lawyers), 
 of reporters, publishers, and printers. Nevertheless, so great 
 were the practical inconveniences of the unregulated condi- 
 tion of affairs, that a memorial was numerously signed by 
 members of the Equity Bar, less numerously (but sufficiently) 
 by their brethren of the Common Law, suggesting the summon- 
 ing of a general meeting of the Bar to consider the whole subject. 
 This memorial was presented, in November, 1863, to Sir Roundell 
 Palmer (afterwards Lord Selborne), who was then, as Attorney- 
 General, at the head of the legal profession ; and he, after 
 some little hesitation, acquiesced in its prayer. The meeting 
 was duly held on 2d December, 1863 ; and a Committee 
 appointed to draw up a definite scheme. The scheme was 
 produced at a meeting held on 1st July, 1864, and then dis- 
 
 ^ The History and Origin of the Law Reports (Clowes, 1884).
 
 194 A SHORT HISTORY OF ENGLISH LAW 
 
 cussed. Objections of detail were taken ; but it was obvious 
 that the sense of the majority was strongly in favour of a reform 
 on the lines broadly indicated by the report of the Committee. 
 On only two points does there appear to have been any serious 
 division of opinion among the supporters of the proposal. One 
 of these was whether the new reports were to be official in the 
 strict sense, or at least in the sense that no others could be 
 quoted in Court. The affirmative of this proposition, though 
 supported by eminent names, was ultimately rejected without 
 a division at the adjourned meeting, held on 28th July, 1864, at 
 which the reform proposals were finally carried.^ A similar fate 
 befell a proposal to maintain the old individual responsibility 
 of the reporters by rejecting the proposals of the Committee 
 in favour of editorial supervision.- These points of principle 
 having been cleared up, objections resolved themselves into 
 matters of financial detail ; and the latter were finally overcome 
 by generous offers on the part of three of the Inns of Court 
 and the Council of the Law Society (then known as the ' Incor- 
 porated Law Society ' ) to guarantee the expenses of the first 
 year's publication. Vested interests were conciliated, where 
 possible, by the offer of posts on the reporting staff of the newly 
 created Council of Law Reporting, and by liberal offers of 
 remuneration to publishers and booksellers. 
 
 The new series, which, as every lawyer knows, comprises 
 reports of moderate length of cases decided in all the various 
 branches of the Supreme Court, as well as in the House of 
 Lords, the Judicial Committee of the Privy Council, the Court 
 of Criminal Appeal, and the old Court of Crown Cases Reserved, 
 commenced its career in November 1865, and has, in the general 
 opinion, been an unqualified success, both literary and financial. 
 An indication of its achievements in the latter direction may 
 be gathered from the fact that whereas, in the estimate of Mr. 
 Daniel, a complete set of the reports current in 1863 could not 
 be obtained for a less annual expense than £45, the annual 
 subscription to the complete series of Law Reports is now only 
 £4, which includes, not merely the Reports proper, but such 
 useful appendages as The Weekly Notes, The Quarterly Current 
 Index of Cases, and The Consolidated and Decennial Digests 
 which are from time to time published by the Council. The 
 
 ' Daniel, op. cit., p. 225. * jud.^ pp. 224-245.
 
 MODERN AUTHORITIES 195 
 
 Council itself consists of two representatives of each of the four 
 Inns of Court, the General Council of the Bar, and the Law 
 Society, and of three ex-officio members, viz. the Attorney- 
 General, the Solicitor-General, and the President of the Law 
 Society for the time being. It is, therefore, thoroughly repre- 
 sentative of both branches of the legal profession ; whilst at the 
 same time, through the Law OjBBcers, just sufficiently in touch 
 with the State to enable it to be assured of adequate considera- 
 tion for its views, should occasion arise for it to express an 
 opinion on official matters. Despite their success, however, 
 the Law Reports are still faced by wholesome competition. 
 Not only do the Law Journal Reports continue to appear in 
 volumes which for trustworthiness and convenience are hardly, 
 if at all, inferior to the Laio Reports; but, as we have seen, 
 several other series, not professing to give such complete reports 
 as the two series named, continue to attract sufficient public 
 support. 
 
 It is, perhaps, not strictly true to say, that the sources of 
 authority previously described in this chapter are the 
 Sources of only possible authorities for the guidance of English 
 *^ Courts at the present day. For the ecclesiastical 
 
 courts, though, as we have seen,^ shorn of much of their dignity 
 and profit by the Reformation and the Civil War, were not 
 finally deprived even of their temporal jurisdiction in matters 
 matrimonial and testamentary until 1857 ; while they exercise, 
 of course, some jurisdiction in purely ecclesiastical matters to 
 the present day. Again, the Court of Admiralty was not 
 merged into the Supreme Court until 1875 ; and, when it was 
 so merged, it took over with it, like the ecclesiastical courts of 
 Probate and Divorce, its existing law, subject, of course, to 
 statutory and judicial modifications. In theory, therefore, both 
 the Canon and the Roman Civil Law may be quoted as author- 
 ities in the English Courts ; when these are exercising what 
 was formerly ecclesiastical or Admiralty jurisdiction. But 
 the legal positions of the two are not precisely the same. So 
 
 _ , far as Roman Law is concerned, it stands where 
 Roman Law . , , i • i i • p • • 
 
 it did, as the admitted basis of testamentary juris- 
 diction, and a considerable authority in Admiralty law, subject 
 only (though this is a considerable admission) to any statutory 
 
 ' Ante, pp. 74, 75.
 
 196 A SHORT HISTORY OF ENGLISH LAW 
 
 alterations, and to any decisions of the King's Courts from 
 „ J time to time issued or delivered. But the Canon 
 
 Canon Law 
 
 Law was subjected to somewhat remarkable treat- 
 ment at the time of the Reformation. As it then stood, it 
 received express Parliamentary sanction, so far as matters 
 properly within its scope were concerned, and so far as it was 
 not inconsistent with the 'Laws, Statutes, and Customs of this 
 Realm, (n)or to the Damage or Hurt of the King's Prerogative 
 Royal,' by the so-called Act for the Submission of the Clergy ; ^ 
 and, therefore, the Canon Law as it existed in 1533, is binding, 
 within its proper sphere, and subject to the exceptions just 
 mentioned, both on clergy and laity. On the other hand, no 
 additions subsequently made by Papal or other Roman authority 
 are of any validity in English courts, ecclesiastical or civil ; 
 while additions made by the English Convocations under Royal 
 license, though they bind the clergy of their respective provinces, 
 do not bind the laity, because they have not received Parlia- 
 mentary sanction.^ 
 
 It is sometimes said that, even so late as the period now 
 under discussion, the text-books of certain very eminent writers 
 Text-Book have been treated as authorities by English Courts, 
 and should therefore be regarded as sources of modern 
 English Law. But this is true only in a modified sense. Doubt- 
 less such works as Blackstone's Commentaries, Dalton's Country 
 Justice, and Hawkins' Pleas of the Crown, may be fairly treated 
 by the historian as statements, jjrimd facie correct, of the law 
 at the time when they were written. It may even be that, 
 having regard to the great reputation of such writers, English 
 judges will allow advocates to quote from them, and will e\en 
 themselves, in delivering judgments, allude with respect and 
 approval to these works. But it cannot be seriously contended, 
 that these works are authorities in the sense in which Bracton, 
 Littleton, and even Coke, are authorities for the law of their 
 respective periods. The difference between the weightiest 
 passage of a modern text-book writer and the most ordinary 
 judgment of a Court of First Instance, or an unimportant 
 
 • 25 Hen. VIII (1533) c. 19, s. 7. This arrangement was intended to last only 
 until a contemplated revision had taken place (ibid., s. 2 and see 35 Hen. VIII (1543) 
 c. 16). But the revision has never been effected. 
 
 ' See the position learnedly discussed by Lord Ilardwicke, C. J., in the case of 
 Middleton v. Crofts (1730) 2 Atk. 650.
 
 MODERN AUTHORITIES 197 
 
 section of an Act of Parliament, is quite clear. The advocate 
 may show that the passage in question is inconsistent with 
 statute or judicial decision ; and, if he succeeds, its so-called 
 'authority' is at once gone. He may attempt to show the 
 unwisdom, absurdity, or inconsistency, of the judicial decision 
 or the section of the Act of Parliament ; but, until these have 
 been overruled by a later statute, or (in the case of the judicial 
 decision) by a superior tribunal, they remain binding in 'pari 
 materia, and, even if the advocate is not pulled up for irrele- 
 vance, his argument will be of no avail. Even Blackstone, 
 one of the greatest of text-book writers, admits freely the truth 
 of this view.^ Text-book writers, whatever they once were, 
 are now guides only, and not authorities, for English Law. 
 
 The only exception from this last rule is more apparent than 
 real. It consists of the various volumes of precedents which. 
 Practice without any formal official sanction, are compiled 
 Books \yy private authors, and accepted by the profession as 
 
 guides in practice. These fall, generally speaking, into two 
 classes. The first, formerly known as Entries, or Books of 
 Entries,^ but latterly as Precedents of Pleading,^ contain speci- 
 mens or forms of the various documents used in the conduct 
 of litigation. In a very real sense, they are 'authorities' 
 for the law of the period under discussion ; but that is because, 
 with barely an exception, all the precedents given are copied 
 from documents which have actually been used in legal pro- 
 ceedings, and have thus passed through the fire of judicial 
 criticism. In other words, such works are really judicial deci- 
 sions in a somewhat unusual form. The second class of Prece- 
 dent Books are those concerned with non-litigious business, 
 commonly called 'conveyancing.' By their very nature, they 
 cannot claim the direct authority which belongs to forms which 
 have been treated by the Courts as sufficient for their purposes. 
 But the known unwillingness of the Courts to disturb the public 
 confidence in forms which have been made the vehicles for 
 transferring interests of, perhaps, great value, or to unsettle 
 titles based upon that confidence, tends to give these forms, 
 
 1 Comm. I, 72-73. 
 
 2 Among these may be quoted, more or less in chronological order, the works of 
 Aston (1661), Brown (1670), Winch (1680), Robinson and Vidian (16S4), Hansard 
 (1685), Levinz (1702), Clift (1703), Lilly (1723), Mallory (1734). 
 
 ' Examples are the works of Chitty, Mitford, Daniell, and BuUen and Leake. ,
 
 198 A SHORT HISTORY OF ENGLISH LAW 
 
 when they have been extensively used, something like a negative 
 judicial authority. Obviously, however, a tribunal cannot 
 refuse to condemn a conveyancing precedent which has never 
 really received judicial or parliamentary approval ; if it con- 
 siders it to be in fact insufficient, or based on a misconception 
 of the law. Such precedents are not, therefore, 'authorities' 
 in the strict sense. 
 
 Though strictly irrelevant to the main subject of the present 
 chapter, it may be convenient to say here a few words about 
 Legal t^6 organization of the legal profession. As we 
 
 Profession have seen, the earliest lawsuit was a fight ; and, in 
 primitive times, deputies or agents are not at first allowed in a 
 fight, for obvious reasons. Even in Trial by Battle, however, 
 the 'champion,' or professional pugilist, appears in English 
 legal history at an early date,^ at any rate in civil causes ; and 
 he may be said to combine in himself the functions of counsel, 
 attorney, and witness, possibly even of the jury, of later times. 
 At any rate, he may fairly be claimed as one of the direct ances- 
 tors of the legal profession. No sooner, however, is the system 
 of the common law, with its regular courts and pro- 
 cedure, fairly under way, than we note a specializa- 
 tion of functions which has continued to the present day. The 
 champion gradually disappeared, with the disappearance of 
 Trial by Battle ;^ and his place was filled by the serjeant at law 
 (serviens ad legem) and apprentice, and by the responsalis or 
 attorney. All these were under official license ; indeed, in 
 one well-known instance, the law of supply and demand having 
 failed, the royal justices were bidden (in 1292) to scour the 
 the country for persons suitable for enrolment as attorneys and 
 apprentices.^ The Serjeants were a close Order by the end of 
 the thirteenth century, and received their patents direct from 
 the Crown — in later days with much ceremony. They had 
 their own Inns or colleges.'* Till 1834, they had exclusive audi- 
 ence in the chief civil court, the Court of Common Bench ; and 
 
 ' See, for examples, the cases transcribed into Bradon's Note Book, Vol. II, 
 cases 116 (1220), 104 (1222), 243 (1227), 328 (1229), &c. 
 
 2 Ante, pp. 42, 43. 
 
 ' Rot. Par. I, 84. (The early Parliament Rolls are full of the privileges and sins 
 of attorneys.) 
 
 * The names at least of two survive ; one behind Chancery Lane, the other 
 behind Fleet Street, in Loudon.
 
 MODERN AUTHORITIES 199 
 
 though, In that year, their monopoly was formally abolished 
 by royal warrant directed to the Chancellor,^ yet, in 1840, 
 this warrant was declared by the Chief Justice of the Court 
 to be invalid, and the Order was only finally shorn of its forensic 
 monopoly by the slow process of extinction. Its still greater 
 judicial monopoly lasted, in theory, till 1875 ;^ though in recent 
 years it had become a mere formality, the judge designate 
 being made a Serjeant as a preliminary to being sworn into his 
 judicial office. But for centuries it was the firmly established 
 tradition, that all the Justices of both Benches and all Com- 
 missioners of Assise ^ should be chosen from among the Serjeants ; 
 the Serjeants sat within the 'bar' or boundary of the Court, 
 and were addressed by the judges as ' brothers.' In the eigh- 
 teenth century, their place in the legal world began to be taken 
 by the King's Counsel Extraordinary, or, simply, 'King's 
 Counsel,' i.e. the officially retained representatives of the Crown 
 other than the Law Officers.^ 
 
 These new 'patent counsel' were, however, though entitled 
 to precedence over their undistinguished brethren of the Outer 
 King's Bar,^ and to seats within that magic boundary, 
 
 Counsel ^^^^^ |j],g ^^le Serjeants, of a different Order from them. 
 They mingled freely in the society of the 'apprentices' or, as 
 they were later called, 'students'; especiall}^ in those great 
 Inns of colleges of legal learning, the Inns of Court, which. 
 
 Court founded in antiquity, reached their zenith at the end 
 
 of the sixteenth century. These represented, as has been said,^ 
 the revolt against Romanism and the triumph of the common law 
 in the thirteenth century, and the consequent severance from 
 
 1 A full copy is given in PuUing's Order of the Coif, p'. 100. 
 
 ' Judicature Act, 1873, s. 8. 
 
 ^ The author cannot trace Mr. Pulling's reference {op. cit., p. 4, n.) to the statute 
 '4 Edw. Ill, c. 16,' which he quotes for a statutory monopoly. 
 
 * Of course there were earlier examples, of whom Bacon at the beginning, and 
 Francis North at the end, of the seventeenth century, are well known. The King's 
 Counsel have disabilities, as well as privileges. Thus they cannot appear for a 
 prisoner against the Crown without royal permission, which, at one time, was only 
 obtainable on payment of a fee. It must be remembered, however, that, when 
 King's Counsel were first created, prisoners had no right to be defended by counsel, 
 except on points of law. 
 
 ^ This, and its analogue, the Inner Bar, are orthodox but curious expressions. 
 There is but one bar in each Court ; and some advocates are entitled to plead 
 within it, whilst the rest must plead from without. But such inaccuracies are 
 common in every professional language ; and the attempts to justify them are of tea 
 more amusing than the inaccuracies themselves. 
 
 " Ante, p. 20.
 
 200 A SHORT HISTORY OF ENGLISH LAW 
 
 the classical learning of the universities. At an unknown date, 
 they seem to have acquired a monopoly of that privilege of 'call- 
 ing to the Bar,' i.e. of licensing 'apprentices' to pursue their 
 calling, which, as we have seen, was entrusted by Edward I to 
 his Justices ; but the right of appeal from their decisions to 
 the assembled judges, which still survives, and is occasionally 
 exercised, marks the privilege of the Inns of Court as a delega- 
 tion, not as an original authority. Each Inn of Court has long 
 had its own internal organization of Benchers (or ruling body), 
 in whose ' Parliaments ' the affairs of the Inn are managed, ordi- 
 nary barristers (for inside the Inns King's Counsel have, as such, 
 no official rank) and students,^ i.e. those who are Cjualifying for 
 call to the Bar, but are not yet entitled to audience in the Courts. 
 The glorious buildings and gardens of the Inns of Court, their 
 libraries, pictures, and plate, testify to their ancient wealth 
 and importance ; and Coke's enthusiastic account of them is 
 well known." In the eighteenth century, they seemed to have 
 fallen into sloth and decay. Their buildings became ruinous, 
 their readerships and exercises mere formalities,^ their libraries 
 dispersed or deserted, their accounts often confused, or worse. 
 But at length the spirit of reform reached them. Though 
 changes in social conditions, especially the outward march of 
 the suburbs, have almost deprived them of their residential 
 character, they have re-constituted themselves as the professional 
 centres of forensic life, and, though hardly yet to an extent 
 commensurate with their resources and opportunities, as centres 
 of legal study. The establishment, in the year 1852, of the 
 Council of Legal Education, consisting of representatives of 
 the Benches of the Four Inns, marked a great step in advance ; 
 and the formation, in the year 1894, of the General Council of 
 the Bar, charged with the guardianship of professional etiquette, 
 though in itself somewhat of a reflection on the activity of the 
 Benches, has provided a wholesome criticism and incentive 
 of the bodies with whom the executive authority still rests. In 
 addition to its purely critical functions, the General Council of 
 the Bar appoints representatives on various important bodies, 
 
 ' The reader must remember that, in the sixteenth century, the term 'student' 
 or 'apprentice' still included members of the Outer Bar, who were entitled, or at 
 l<a!st permitted, to speak in Court. The change to modern usage seems to 
 have taken place about the time of the Civil War. 
 . * 3 Rep. pref. pp. xxxv-xxxviii. ^ Blackstone, Comm. Vol. I, p. 25.
 
 MODERN AUTHORITIES 201 
 
 e.g. the Rule-making committees under the Judicature Acts, the 
 Land Transfer Acts, and the Criminal Appeal Act, and to the 
 Council of Law Reporting. 
 
 The earliest attorneys were, in all probability, simple non- 
 
 professional agents, whose duty it was to represent their 
 and employers in legal proceedings. Such persons would 
 
 be very necessary in days when litigation was rapidly 
 increasing ; but when facilities for travel were in an elementary 
 stage. ^ We must, however, again remember how primitive 
 tribunals cling to the view that no proceedings can be taken in 
 the absence of the parties; this will account for the reluctance 
 shown by early law to recognize the existence of agency or 
 attorneyship. It is not till 1235 that 'suitors' (who would 
 probably include both plaintiffs and persons bound to attend 
 the Court as part of the homage) were allowed generally to be 
 represented by attorneys ; and then only in the local courts.^ In 
 1278, by the Statute of Gloucester,^ the privilege was extended 
 to defendants, in cases which could not lead to battle. After the 
 great diminution in the prosecutions by way of appeal had taken 
 place, as previously explained,^ even appeals of homicide could be 
 presented and defended by attorney ; if, for any reason, trial 
 by battle could not follow.^ 
 
 The professional character of attorneys begins to make itself 
 felt in the statute of 1402,^ which speaks with regret of the number 
 of attorneys 'ignorant and not learned in the law,' and requires 
 all candidates for admission to the roll {'en rolle ')^ to be examined 
 by the Justices ; and a statute of James I ^ repeats this require- 
 ment in other terms. JNIeanwhile, the new jurisdiction of the 
 Court of Chancery had produced another similar body of prac- 
 titioners. At first, apparently, the ]\Iasters in Chancery were 
 supposed to look after the Equity suitors' interests ; but the 
 natural desire of litigants to have agents specially charged with 
 furthering or 'soliciting' their causes, led to the recognition 
 of a special body of semi-attached officials, known as 'solicitors,* 
 who are treated by the statute of 1605 as on the same footing with 
 
 * This is specially mentioned as a ground for appointing an attorney in the so- 
 called Ordinance of Liberties, printed as 27 Edw. I (1299) c. 5. 
 
 2 Statute of Merton (20 Hen. Ill) c. 10. =* 6 Edw. I, c. 8. 
 
 * Ante, pp. 155, 150. ^3 Hen. VII (1486) c. 1, s. 91. M Hen. IV, c. 18. 
 
 ' This must mean 'the rolls' (i.e. of the various Courts). It was not until the 
 passing of the Solicitors Act, 1843, that a single Roll of Solicitors came into existence. 
 » 3 Jac. I (1605) c. 7.
 
 202 A SHORT HISTORY OF ENGLISH LAW 
 
 attorney's. A third class of non-forensic practitioners who made 
 their appearance before the end of the sixteenth century were the 
 'scriveners,'^ who concerned themselves only with chamber or 
 non-litigious business, chiefly borrowing and lending of money. 
 Milton's father was a scrivener ; and the Scriveners' Company or 
 Gild, which received a charter from James I, survives, in a some- 
 what attenuated form, to the present day." 
 
 So far as the social and educational side of the non-forensic 
 branch of the profession was concerned, attorneys and solicitors 
 Inns of appear, until the close of the sixteenth century at 
 
 Chancery Jeast, to have been, in many cases, members of the Inns 
 of Court, above alluded to. But the overflow of these founda- 
 tions, in the days of their strength, seems to have resulted in the 
 formation of a number of minor or preparatory Inns, known as 
 Inns of Chancery, in the neighbourhood of the greater founda- 
 tions. Some of these, such as Thavie's Inn and Barnard's 
 Inn, suggest, by their titles, that they were originally founded 
 by private proprietors; but there is a well-established tradition 
 to the effect that each was affiliated to one or other of the Inns 
 of Court ; ^ and the tradition has been acted upon at least in 
 one modern case.'* Apparently, it was to these Inns of Chancery 
 that attorneys and solicitors chiefly resorted ; and though, again 
 and again, in the latter part of the seventeenth century, it 
 was laid down by judicial Order,^ that all attorneys of the 
 Common Pleas should join some Inn of Court or of Chancery, 
 it is evident, from the wording of the later Orders,^ that some 
 opposition to the injunction was being experienced from the 
 
 J These had probably originated in the humble guise of writers of court hand in 
 very early times (Freshfield, Records of the Society of Gentlemen Practisers, Intro- 
 duction, p. xii). 
 
 ^ The ancient monopoly of the Scriveners' Company, at any rate in the City of 
 London, was finally defeated, after lengthy ligitation, by the decision in Harrison v. 
 Smith, in the year 1760 (Freshfield, Records, Introd., p. Ixvi). Since that date, 
 conveyancing has been recognized as a proper part of the solicitor's professional 
 work. Of course members of the Bar are entitled also to draw and settle convey- 
 ancing documents ; and, at one time, there was a middle rank of ' conveyancer 
 under the bar,' now practically extinct. 
 
 ' See the preface to Coke's 3d volume of Reports, p. xxxvi, before alluded to. 
 
 ■* In the division of the large sum of money obtained by the sale of the site and 
 buildings of Now Inn, in the year 1901, a substantial portion was allotted to the 
 Middle Temple in respect of its overlordship. 
 
 * Orders of Michaelmas 1654, Trinity 1677, Michaelmas 1684, and Michaelmas 
 1705, in Cooke's Rules, Orders, arid Notices. 
 
 * See Orders of 1684 and 1705, uhi sup. ('if those Honorable Societies shall please 
 to admit them').
 
 MODERN AUTHORITIES 203 
 
 larger foundations. Ultimately, at some uncertain date, prob- 
 ably at the beginning of the eighteenth century, the Inns of 
 Court succeeded in excluding from their membership all attorneys 
 and solicitors, who thereupon seem to have retired to the Inns 
 of Chancery ; thus establishing, in addition to the division of 
 functions between the two branches of the profession, which, 
 as we have seen, existed in the thirteenth century, a division 
 of education and discipline, which was no part of the original 
 system.^ It is worthy of notice that, according to Roger North,^ 
 personal intercourse with the lay client, which had formerly 
 been shared between both branches of the profession, became 
 confined to the non-forensic branch in the last half of the seven- 
 teenth century, i.e. at the very time when the completion of 
 the severance between the two branches was becoming imminent. 
 The natural consequence of the change was, that the business 
 and reputation of individual barristers came to depend largely 
 on the favour of attorneys and solicitors. 
 
 The decay which characterized the Inns of Court in the 
 eighteenth century was shared to the full by the Inns of Chancery. 
 _ , Already in the Order of 1705 ^ we find the judges of the 
 Inns of Common Pleas lamenting the intermission of ' commons,' 
 
 ancery ^^ social gatherings, in the Chancery Inns, with the 
 consequent decay and detriment of those societies, and attempt- 
 ing to revive them. It was, however, too late to save the Inns 
 of Chancery, which gradually sank into the position of mere 
 dining and perquisite clubs for the benefit of a few ' ancients ' 
 or benchers, recruited on a closely co-optative principle. The 
 lowest stage of degradation was reached when, in the nineteenth 
 century, the ancient sites and buildings of the Inns of Chancery 
 were taken for public purposes ; and the large sums paid by 
 way of compensation were pocketed by the members of their 
 governing bodies. This scandalous procedure, after prevailing in 
 several cases, was at length put a stop to by the decision of Mr. 
 Justice Cozens-Hardy (now Master of the Rolls) in the case of 
 Clifford's Inn ; ^ and the considerable amount realized by the sale 
 of the property of that Inn and New Inn was ear-marked for the 
 
 > See further on this point L.Q.R. XXVI, pp. 137-145, by H. H. L. Bellot. 
 
 ^ Lives of the Norths (Bohn) III, par. 175. 
 
 ' Cooke, Rules, Orders, and Notices. (The only drawback of this deeply interest- 
 ing and well-printed volume is, that it is not paged.) 
 
 * Smith V. Kerr [1900] 2 Ch. 511 ; confirmed [1902] 1 Ch. 774.
 
 204 A SHORT HISTORY OF ENGLISH LAW 
 
 purposes of legal education. A bold and comprehensive scheme 
 for the utilization of this and other funds, a scheme in some 
 degree worthy of the capital of the greatest Empire in the world, 
 was presented by the Attorney-General of the day (Sir Robert 
 Finlay), in his capacity of official guardian of charitable funds, 
 but was blocked, temporarily at least, by the refusal of the 
 Benchers of the Inner Temple to concur. 
 
 Meanwhile, the status of attorneys and solicitors, as officers 
 of the Courts, had been regulated by more than one statute 
 Voluntary of the eighteenth century, of which perhaps the 
 most important is that of 1729,^ which introduced 
 the requirement of five years' apprenticeship, under written 
 articles, to a practising solicitor, as a condition precedent of 
 being admitted to the rolls, and virtually abolished the distinc- 
 tion between attorneys and solicitors, by allowing any duly 
 qualified attorney to be sworn also as a solicitor.^ But by far 
 the most important step in the interests of the profession was 
 taken, in the year 1739, b\^ the formation, on a purely voluntary 
 basis, of the Society of Gentlemen Practisers in the Courts of 
 Law and Equity.^ Though the records of this Society are not 
 complete, there is every reason to believe that it continued 
 to flourish, as a private society, until the year 1831, when, with 
 other societies having a briefer history, it was merged in the 
 chartered body known from 1831 to 1903 as ' The Incorporated 
 Law Society,' ^ and from 1903 onwards as 'The Law Society.' 
 
 One of the most striking features of this body is its dual 
 character — public and private. Membership of the Society 
 The Law (uow amounting to about 9000) is purely volun- 
 Society -^^ry ; and the voluntary subscriptions of members 
 
 go towards the social side of the Society's activity, its public 
 rooms, library, and entertainments, and the expenses incurred 
 in the protection of the professional interests of solicitors. But, 
 in its public capacity, the Society acts as the registrar, educator, 
 
 '2 Geo. II, c. 23, ss. 5 (attorneys), 7 (solicitors). 
 
 * Ihid., s. 20. Reciprocity was established in 1750 (23 Geo. II, c. 26, s. 15). 
 
 ^ See the Records of this Society, published by The (Incorporated) Law Society 
 in 1897, with Introduction by Dr. Edwin Freshfield. 
 
 * This was not its official title, which was ' The Society of Attorneys, Solicitors, 
 Proctors, and others, not being Barristers, practising in the Courts of Law and 
 Equity of the United Kingdom.' (See the charters at length in tlie Handbook of 
 The Law Society, pp. 32-41.) Proctors were ecclesiastical agents. They were 
 abolished as a distinct body in 1857, when the Courts of Probate and Divorce were 
 established.
 
 MODERN AUTHORITIES 205 
 
 examiner, and discipliner, of present and future solicitors ; 
 either as delegate of the State, or as an autliority recognized by 
 the State. In the year 1843, though the admission of sohcitors 
 to the Roll is still the exclusive prerogative of the Master of the 
 Rolls, the custody of the official Roll, containing the names of 
 solicitors entitled to practise, was entrusted to the Law Society.^ 
 In the year 1877, the sole control of the examinations qualifying 
 for admission to practise was entrusted to the Society,^ which was 
 already charged with the education of articled clerks in the theory 
 of their intended profession.^ From the year 1833 onwards, this 
 function had been more or less completely performed by the 
 holding of lectures and classes; but, in the year 1903, a new and 
 comprehensive system was instituted, which not only provides 
 for articled clerks' complete legal education in London, but 
 substantially assists similar efforts made by provincial Law 
 Societies in large towns, in many cases in conjunction with 
 the newly founded universities and colleges, which sprang up in 
 the latter half of the nineteenth century. The administration 
 of this scheme, subject to the general control of the Council of 
 the Society, is vested in a mixed Committee, annually appointed 
 by the Council, and consisting of a majority of representatives 
 of that body, of representatives of provincial Law Societies, and 
 of two solicitors nominated by the members of students' societies. 
 The examinations are conducted by an ordinary committee of 
 the Council, annually appointed by that body. 
 
 Finally, the disciplinary functions of the Law Society, formerly 
 of a purely critical character, assumed a new and important 
 phase when, in the year 1888, the preliminary investigation of 
 charges of professional misconduct against solicitors was en- 
 trusted to a committee of the Council of the Society (known 
 as the ' Discipline Committee '), appointed by the Master 
 of the Rolls.'* This committee, sitting as a court of discipline, 
 but in private, hears charges, and reports to the Court thereon ; 
 whereupon the Court, with which executive action still ex- 
 clusively remains, makes such order as it considers to be just ; 
 either dismissing the complaint as unfounded, or suspending the 
 solicitor inculpated from practice for a longer or shorter time, 
 
 ^ Solicitors Act, 1843, s. 21. The process was not completed till 1SS8 (Solicitors 
 Act, 1888, ss. 5-6). 
 
 2 Solicitors Act, 1877. ^Ibid., 1877, s. 8. * Ibid., 1888, s. 13.
 
 206 A SHORT HISTORY OF ENGLISH LAW 
 
 or, in grave cases, striking his name off the Roll. The statute 
 expressly reserves ^ to any complainant the right to proceed 
 by direct application to the Court ; and, presumably, the 
 right to bring a civil action against a solicitor for negligence, 
 and, certainly, the power of the Crown to prosecute for criminal 
 offences, are not affected by its provisions. But the advantage 
 to the Court of being relieved of long and wearisome enquiries 
 into details, and the obvious gain to justice, by allowing charges, 
 which may be reckless or unfounded, to be investigated without 
 the odium necessarily attendant on a public enquiry, are abund- 
 ant justification of the policy of the Act. 
 
 1 S. 13, ad fin.
 
 CHAPTER XIV 
 REFORM BY EQUITY 
 
 IT has often been remarked, that the history of Enghsh legis- 
 lation during the eighteenth century, at least so far as 
 private law is concerned, is almost a blank. If we put 
 aside the Act for the Amendment of the Law passed in 1705,^ 
 the Diplomatic Privileges Act of 1708, the Land Registry Acts 
 Legislative of 1706 and 1708, the Landlord and Tenant Acts of 
 stagnation 1709 and 1730, the Charitable Uses Act of 1735, 
 the Distress for Rent Act, 1737, the Inclosure Act of 1773, and 
 the Life Assurance Act of 1774 (none of which measures are 
 really of first-class importance), we shall hardly find a single Act 
 of Parliament of those momentous years, from 1700 to 1800, 
 which has left a permanent mark on the body of English civil law. 
 Apparently, the reaction which followed upon the agitation of 
 the Civil War, combined with the feeling of uncertainty pro- 
 duced by a disputed succession to the Crown, rendered the nation 
 unwilling to allow the laborious and disturbing machinery of 
 Parliamentary reform to tamper with the ancient institutions of 
 the country. At any rate, the striking fact remains, that the 
 century which witnessed the passing of the Statute of Monopolies,^ 
 the Limitation Act,^ the Petition of Right, ^ the Star Chamber 
 and Habeas Corpus Acts,^ the Act for the Abolition of Feudal 
 Tenures,^ the Navigation Acts,^ the Act for abolishing Arrest on 
 Mesne Process,^ the Statute of Frauds,^ the Statutes of Distribu- 
 tion," the Bill of Rights," the Statute of Fraudulent Devises,^^ ^j^g 
 Treason Act,^^ the Bond Execution Act,^^ and the Act of Settle- 
 
 ' 4 & 5 Anne, c. 3 (or 16). It seems a little strange, that this useful statute, much 
 of which is still live law, should not have an official short title. 
 
 * 21 Jac. I (1623) c. 3. 3 Ibid., c. 16. ^ 3 Car. I (1627) c. 1. 
 
 5 16 Car. I (1640) c. 10, and 31 Car. II (1679) c. 2. 
 
 6 12 Car. II (1660) c. 24. ' Ibid., c. 18, &c. 
 
 8 13 Car. II, St. II (1661) c. 2. '29 Car. II (1677) c. 3. 
 
 i»22 & 23 Car. II (1670) c. 10; 1 Jac. II (1685) c. 17. 
 " 1 W. & M. St. II (1689) c. 2. 12 3 W. & M. (1691) c. 14. 
 
 " 7 & 8 W. Ill (1695) c. 3. 
 
 " 8 & 9 W. Ill (1696) c. 11. (This statute also ought to have an official short 
 title.)
 
 ^08 A SHORT HISTORY OF ENGLISH LAW 
 
 ment/ was followed by the century whose chief legislative out- 
 put was the meagre crop of statutes mentioned above. And 
 from this fact it might be hastily concluded, that the eighteenth 
 century was a stagnant period in the history of English Law. 
 In fact it can hardly be described as revolutionary ; but it would 
 be a great mistake to suppose that it witnessed no legal reform. 
 The explanation is, that the chief engine of law reform during 
 that century was the judicial action of the Courts, proceeding 
 chiefly under the guise of Equity, and chiefly, though by no 
 means exclusively, in the Court of Chancery. 
 
 The successive watchwords of the Chancellor's equitable juris- 
 diction will give us the best key to the historical explanation of 
 the notion of 'Equity,' as understood by English 
 lawyers. At first the Chancellor's equita})le juris- 
 diction was confined to matters of 'grace,' i.e. matters requiring 
 special indulgence or provision. It was thought suitable in the 
 fourteenth century (the exact dates are still obscure) to entrust 
 the exercise of this branch of the prerogative to one who, as the 
 Custodian of the Great Seal, w^as already a great administrative 
 official, charged with the custody of the Register of Writs, and 
 having also some rather undefined Common Law, or 'Latin' juris- 
 diction ^ in matters of sci. fa. and other strictly legal proceedings. 
 It was, doubtless, the 'grace ' foundation of Chancery jurisdiction 
 which gave rise to the popular idea expressed in Selden's Table 
 Talk,^ that ' Equity is a roguish thing,' for that it varies as the 
 length of the Chancellor's foot. Nor can it be denied, that this 
 original characteristic long served the Chancellor in good stead ; 
 when he desired to depart somewhat widely from tradition. 
 
 Nevertheless, long before Selden's day, ' conscience ' had al- 
 most superseded ' grace ' as the working foundation of the 
 
 , Chancellor's equitable jurisdiction. This was but 
 
 Conscience' ^ ** • i /-, o i 
 
 a natural consequence of entrustmg the Great Seal 
 
 to ecclesiastics, whose leanings tovrards casuistry, and peculiar 
 
 means of probing the minds of their penitents, caused them to 
 
 lean heavily on the inward intent of the parties, rather than on 
 
 those external forms beloved of the Common Law. The contrast 
 
 between the two principles is, as we have seen,'* strongly brought 
 
 1 12 & 13 W. Ill (1700) c. 2. 
 
 ^ So called, to distinRuish it from the jurisdiction by 'EnRlish Bill' in Equity. 
 
 ^ Ed. Reynolds, xxxvii, 2. ■• Ante, pp. 1:39, 140.
 
 REFORM BY EQUITY 209 
 
 out in the Dialogues of Doctor and Student, in the middle of the 
 sixteenth century. To the appHcation of the doctrine of 'con- 
 science' the Court owed its vast jurisdiction in Trusts and 
 Fraud. 
 
 But now, before the period we are approaching, the long line 
 of ecclesiastical chancellors had ended with Wolsey and Stephen 
 Gardiner,^ and had been replaced, for a short period, by a line 
 of statesmen of the type of More, Nicolas, and Francis Bacon, 
 men more familiar perhaps with the Council Board than the 
 judgment seat. They it was, doubtless, who had given to Chan- 
 cery that forcible character in personam, which was so powerful 
 a weapon in its armory. It was natural that the direct wielders 
 of the royal prerogative, men who sat in the Star Chamber and 
 the Privy Council, who knew the secrets of State and the neces- 
 sity for prompt action, should despise the merely declaratory 
 character of a good deal of Common Law process. To them we 
 doubtless owe those four great pillars of Chancery jurisdiction, 
 the injunction, the decree, the sequestration," and the commis- 
 sion of rebellion. The first of these forbade the defendant, on 
 pain of imprisonment, to continue his existing or contemplated 
 course of action ; and we have seen how,^ under a thin disguise, 
 the Chancellor, by means of this process, had, in the year 1618, 
 won a decisive victory over the Common Law courts, and prac- 
 tically enabled the Chancery to control their proceedings. The 
 decree, or positive order, bidding the defendant do some act, was 
 not confined to the mere carrying out, or ' specific performance,' 
 of contracts ; though that was its commonest application. As 
 is well known, it was used, though sparingly, to remedy that 
 serious defect in Common Law procedure, which permitted a de- 
 feated defendant in Detinue or Trover, to retain the subject 
 matter of the action, on paying its value.'* It was, probably, 
 
 ' Of course even Gardiner was not absolutely the last ecclesiastical chancellor. 
 He was succeeded by Archbishop Heath of York ; and Bishop Williams of Lincoln 
 was Lord Keeper from 1621 to 1625. But these two were of little note. 
 
 -Roger North, in his amusing but inaccurate work, Lives of the Norths (Vol. I, 
 p. 295), attributes the invention of the sequestration to Lord Keeper Coventry 
 (1625-1640). But it is certainly much older. It was, for example, applied for in 
 Awtry V. George (1600) Acta Cancellariae, 757-759 ; and, though the Court was reluc- 
 tant to grant the application, it did not regard it as unprecedented. 
 
 ' Ante, p. 166. 
 
 * See this point discussed, ante, p. 59. (The leading cases on the equitable juris- 
 diction are Pusey v. Pusey (1684) 1 Vern. 273; D. of Somerset v. Cookson (1735) 
 3 P. Wms. 390.)
 
 210 A SHORT HISTORY OF ENGLISH LA^^' 
 
 also the origin of the Chancery jurisdiction in partition ; for the 
 award of the Court could not convey the legal estate, it merely 
 directed the parties to make mutual conveyances. The seques- 
 tration was a far superior process of Distress, which enabled a 
 plaintiff whose opponent refused to appear or to obey a decree, 
 to seize the latter's property, and pay himself out of the pro- 
 ceeds ; instead of proceeding laboriously to outlawry, or, through 
 the sheriff, by Fi. Fa. or Elegit} The commission of rebellion 
 enabled him to supersede the somewhat dilatory officers of tlie 
 Marshalsea and other civil prisons, by the prompter methods 
 of the Tower.^ With these weapons in his hands, the Chancery 
 suitor was in a position far superior to that of his brother at 
 Common Law ; at least until the cumbrous processes of Attach- 
 ment and Distress had been superseded by the fictions which 
 enabled a Capias to be employed to arrest the defendant in al- 
 most all Common Law cases.^ 
 
 But, with the commencement of the seventeenth century, 
 the statesmen Chancellors begun to be superseded by a more 
 , specialist class — men like Pickering, Egerton (after- 
 wards Lord Ellesmere) and Coventry, who were 
 law.yers first and last ; and, after the retirement of Lord Claren- 
 don in 1667, the change became practically permanent. It is 
 marked by frequent variations of title, which seem to indicate 
 that the Crown was hardly yet prepared to endow the new 
 type of custodian of the Great Seal with all the powers of his 
 medieval predecessors. The title of 'Lord Keeper' appears 
 frequently in the place of that of ' Lord Chancellor ' ; and in 
 1562 it was deemed necessary to enact,^ that the Lord Keeper 
 had, 'and of right ought to have, the same and like Place, 
 Authority, Preheminence, Jurisdiction . . . Commodities, and 
 Advantages' as a Lord Chancellor. The chief difference 
 between a Lord Keeper and a Lord Chancellor was, in fact, 
 that the former was seldom, or at least not necessarily, made 
 a peer, and was, therefore, not a member of, though he pre- 
 
 1 There seems to have been some little doubt whether a sequestration could be 
 issued of any property other than that in dispute in the cause (see Practice of the 
 Hiah Court of Chancery, 1672, p. 2G). 
 
 ' The form of a Commission of Rebellion is given in The Clerk's Tutor in Chancery 
 by W. Brown, 2d edition, 1694, at p. 276. The practice goes back at least to 1594 
 (see the form of that year given in Crompton's Authoritie et Jurisdiction des Courts 
 (ed. 1637, fo. 47)). 
 
 * See this development explained, ante, pp. 170-172. * 5 Eliz. c. 18,
 
 REFORM BY EQUITY 211 
 
 sided over, the House of Lords. ^ Later still, the even more 
 cautious title of Lord Commissioner (or Commissioners) of the 
 Great Seal was frequently employed ; and again, in 1688, it 
 was found necessary to define by statute" the powers of these 
 ofiicers. Finally, these latter officials must be distinguished 
 from the less important 'Lords Commissioners to Hear Causes ' 
 who appeared during the Commonwealth and after; for these 
 last had no power to affix the Great Seal, which, during their 
 tenure of office, was usually retained by the monarch himself. 
 But these makeshifts gradually gave way before the long 
 succession of distinguished Equity judges who adorned the 
 Court of Chancery during the century which followed the 
 Restoration. Clarendon's immediate successor. Sir Orlando 
 Bridgman, was, perhaps, more famous as a common lawyer and 
 a conveyancer, than as an exponent of equity. jNIost of the 
 royalist estates which escaped confiscation during the Civil 
 War had owed their escape to his ingenious drafting of family 
 settlements. But he was followed by Lord Nottingham, one 
 of those ' black, funereal Finches,' who had played a somewhat 
 doubtful part in the troubled years of Charles I ; and Lord 
 Nottingham's well-known title, ' Father of Equity,' indicates 
 the respect which his decisions inspired. Among the Chan- 
 cellors of the period w^ere inen of high birth, like Simon, Earl 
 Harcourt, who traced descent from a companion of the con- 
 queror of Normandy, and from a cadet of that house who had 
 accompanied the conqueror's descendant in 1066, and like 
 Talbot, whose family had given warriors, statesmen, and bishops, 
 to his country. But there were also, no less famous and up- 
 right, men of humbler birth, like Somers, the great lawyer of 
 the Revolution, and Philip Yorke, afterwards the great Earl 
 of Hardwicke. It is to the work of these men that the term 
 'equity' is peculiarly appropriate. For, while they did not re- 
 nounce the ideals of their predecessors — either that 'grace ' which 
 enabled them to insist that all their remedies were discretionary, 
 not of strict right, or that 'conscience' which enabled them to 
 administer, and justified them in administering, the severest of 
 interrogatories — they added a new ideal, of equality. For, 
 
 ^ The writer believes it to be still the technical rule, that the woolsack, on which 
 the President sits, is not within the sacred limits of the House of Lords. 
 2 1 W. «fe M. St. I, c. 21, s. 2.
 
 212 A SHORT HISTORY OF ENGLISH LAW 
 
 of course, in its origin 'equity' is simply equality or likeness; 
 and the maxim 'equality is equity,' if it is not a mere identical 
 proposition, reads just as well either way. Particularly in the 
 great new department of Equity, which was concerned with the 
 administration of the assets of deceased persons, did the Chan- 
 cellors apply this new ideal of equality. 
 
 But, before proceeding to sketch the developments of equi- 
 table doctrine which took place between the Restoration and 
 Other Chan- ^hc end of the eighteenth century, it may be well 
 eery Officials ^q realize that this task was not effected by the 
 occupants of the woolsack alone. Long before the end of the 
 sixteenth century, the Chancery had gathered to itself a vast 
 staff of administrative officials ; some, like the Cursitors and 
 the Clerks of the Hanaper and Petty Bag, concerned more with 
 the common law and revenue, than the equitable side of the 
 Chancery jurisdiction, others, like the Masters, the Registrars, 
 and the Six Clerks (the latter of whom were actually made a 
 corporation in 1635 ^) occupied mainly with equity business. 
 The great growth of the latter class (the Six Clerks are said to 
 have had sixty clerks under them-) was due to the development 
 of the administrative, as opposed to the litigious side of the 
 equitable jurisdiction ; to the taking of accounts, the execution 
 of commissions for partition, the guardianship of infants, and, 
 most of all, to the management of the estates of deceased per- 
 sons. It was in connection with the high officials known as 
 Masters,^ that there occurred the second great judicial scandal 
 within a century.^ In accordance with a practice eminently 
 characteristic of the period, administration suits were treated 
 as the private property of the ]\Iasters to whom they were 
 allotted ; and, as these suits often lasted for many years, the 
 Masters had, in effect, the custody of the whole of the funds 
 involved during that period, and made large profits by invest- 
 ment of them. The inevitable result followed. At the time 
 of the South Sea Bubble, in 1720, the IMasters speculated heavily 
 in South Sea Stock ; and, when the crash came, there was a huge 
 
 ' Ex parte the Six Clerks (1798) 3 Vcs. 580. (But the validity of the incorpora- 
 tion was disputed.) 
 
 2 Scargill-Bird, Guide to the Documents in the Public Record Office, p. 8. 
 
 ' Specimens of the early work of the Masters in Chancery may be seen in the 
 Acta CanceUariae, liy Cecil Munro (1847). 
 
 ■■ The first was, of course, the impeachment of Francis Bacon for corruptixm 
 in 1621.
 
 REFORM BY EQUITY 213 
 
 deficit. The chief odium fell upon the Chancellor, Lord Mac- 
 clesfield. He was impeached, and made to pay a heavy fine, 
 which went in partial reparation of the suitors' wrongs. It 
 fell to Lord King, Lord Macclesfield's successor, to make pro- 
 vision against the recurrence of such a scandal ; and the meas- 
 ures which he took to originate the office of Accountant-General 
 in Chancery, produced so much friction in the purlieus of the 
 Court, that from the heated atmosphere sprang the most inter- 
 esting, if not the most picturesque quarrel in the judicial history 
 of the eighteenth century. An added flavour is given to the 
 affair by the fact that the gladiators in the struggle concealed 
 their identity under a veil of anonymity which has at least 
 succeeded in puzzling posterity. 
 
 In the year 1726, less than two years after the fall of Lord 
 Macclesfield, appeared a small anonymous History of the Chan- 
 Master of cery,^ which made certain reflections on pretentions 
 the Rolls alleged to have been put forward by the most impor- 
 tant of all the Chancery officials, the Master of the Rolls, to 
 a share in the judicial authority of the Court of Chancery. 
 The whole subject bristled with delightful possibilities. On 
 the one hand, it was undeniable, that the Master of the Rolls, 
 who, by virtue of his duties as custodian of the priceless records 
 of the Chancery, was certainly' at the head of its administrative 
 staff, had in fact exercised, for at least a century, judicial duties, 
 though of a subordinate kind. Masters of the Rolls had, in 
 quite recent years, been appointed Commissioners to Hear 
 Cases in Chancery;^ and, in days further back, had even been 
 given temporary custody of the Great Seal.^ Further, and this 
 was the strongest practical argument of all, it was manifestly 
 impossible for the Chancellor, with his multifarious duties, to get 
 through the whole judicial work of Chancery unaided. These 
 facts were duly pointed out in the anonymous answer to the 
 History of the Chancery, viz. the Discourse of the Judicial Author- 
 ity of the Master of the RoIIs,^ which quickly followed, and which 
 is attributed to the pen of the witty and accomplished Sir Joseph 
 Jekyll, then Master of the Rolls. But it was argued, with 
 
 1 London of that date. Published by Walthoe. 
 
 2 E.g. Sir Julius Caesar in 1621, and Sir Joseph Jekyll himself in 1725. 
 
 ' E.g. John de Waltham in 1383, Simon Gaunstede in 1422, and Robert Jurkham 
 in 1463. 
 
 ^London (Williamson), 1728 (2d edition).
 
 214 A SHORT HISTORY OF ENGLISH LAW 
 
 great force, in a really learned reply, The Legal Judicature in 
 Chancery Stated, which appeared in 1727/ and, like its pred- 
 ecessor, the History of the Chancery, was attributed to Sir 
 Philip Yorke, afterwards Lord Hardwicke,^ that the desirability 
 of a state of things does not prove that such a state exists, that 
 all the alleged instances of the exercise of supreme judicial 
 authority by Masters of the Rolls were to be accounted for by 
 the fact that, at the times in question, the Masters had been 
 enjoying special privileges by virtue of their custody of the Great 
 Seal or their special Commissions, and that, in law, the whole 
 executive power of the Chancery lay in the Great Seal, which, 
 save in the exceptional cases noted above, was the sole posses- 
 sion of the Chancellor or Keeper. 
 
 Whatever may have been the historical merits of the quarrel, 
 the obvious result was to demonstrate the necessity for regu- 
 statute of larizing the position of the Master of the Rolls, 
 ^^^° and to afl'ord judicial assistance to the Chancellor. 
 
 Accordingly, in the year 1730, a statute was passed giving formal 
 authority to the Orders and Decrees, past and future, of the 
 Rolls, to the extent warranted by practice ; ^ but with a proviso 
 that they should not be enrolled of record before being signed 
 by the custodian of the Great Seal, by whom they could, accord- 
 ingly, be reversed or amended without formal appeal.^ Even, 
 however, when the new office of Vice-Chancellor was created 
 in 1813,^ the judicial position of the Master of the Rolls was 
 still left in its anomalous position ; and, though his jurisdiction 
 was extended by the Chancery Reform Act of 1833 to the hear- 
 ing of motions, pleas, and demurrers,^ he still remained, until 
 the establishment of the Court of Appeal in Chancery in the 
 year 1851,^ not merely a subordinate judge, but, in theory, a 
 
 ' London of that date. Published by Walthoe. 
 
 * A curious legend persists in attributing the authorship of the Legal Judicature 
 to Sir Joseph Jekyll, and the Judicial Discourse to Sir Philip Yorke. Sir Joseph 
 was a noted wag ; but he would hardly have written a book to belittle the office 
 which he held for 21 years. 
 
 ' The Act docs not specify what this extent was ; but, apparently, little difficulty 
 was felt on the point. 
 
 ■* When once enrolled, a decree could not be altered without an appeal to the 
 House of Lords. 
 
 =• 53 Geo. Ill, c. 24. « 3 & 4 Will. IV, c. s. 94, 24. 
 
 ^ 14 & 15 Vic. c. 83. Inasmuch as that statute (s. 5) invested the new Lords 
 Justices with all the jurisdiction of the Chancellor, it might be argued that it still 
 left the Master of the Rolls and Vice-Chancellors in the unstable position of mere 
 reporters. But the Judicature Acts definitely placed these officers and their sue-
 
 REFORM BY EQUITY 215 
 
 mere preliminary hearer, whose orders were of no judicial author- 
 ity till confirmed by the Chancellor. As a matter of fact, his 
 house on the east side of Chancery or Chancellor's Lane, the 
 ancient foundation for converted Jews, which had been con- 
 firmed to his great predecessor John de Waltham in 1383,^ 
 had become the centre of Chancery business; and though the 
 'Rolls Court' was moved, on the opening of the new Royal 
 Courts of Justice, to that building, the stately pile of the Record 
 Ofiice, rising on the site of the ancient garden of the Masters of 
 the Rolls, preserves the historic continuity of the scene. 
 
 We pass now to a sketch of some of the leading equitable 
 doctrines established in the last half of the seventeenth and 
 the eighteenth centuries ; and this process will illustrate, better 
 than any other means, that peculiar attitude of Equity towards 
 Common Law which is, juristically speaking, at once the great 
 mystery and the great interest of reform by equity. 
 
 We begin, then, by remembering, that this is not the creative, 
 but the developing period of equitable doctrine. As has been 
 pointed out, the new type of Chancellor was essentially a 
 lawyer, with all a lawyer's caution and respect for precedent. 
 One great exception there is, no doubt, from this principle; 
 and to that exception attention will be paid later. But for 
 the most part, in the period now under review, it is not the 
 extension, but the intension of jurisdiction, which is the striking 
 feature of the history of Equity. 
 
 No better illustration of this cautious attitude can be chosen, 
 than the subject of mortgages. In 1681 Lord Nottingham, 
 in the leading case of Harris v. Harris,^ firmly laid 
 down the principle : * once a mortgage, always a 
 mortgage ' ; a doctrine which not only rendered all agreements 
 in a mortgage for forfeiture of the right to redeem invalid, but 
 also rendered invalid all incumbrances of or dealings with the 
 property by the mortgagee, as against a mortgagor coming to 
 redeem. In some respects, this doctrine was pushed to an 
 
 cessors in the rank of judges of First Instance ; though the Master of the Rolls has 
 since become a member of the Court of Appeal exclusively. 
 
 1 Calendar of Patent Rolls (1897) p. 269. 
 
 2 (1681) 1 Vern. 33. The earliest case known to the writer as illustrating the 
 doctrine, is Courtrnan v. Conyers (1600) Acta Cancellariae, 764. And there the 
 mortgagee was alleged to have purposely absented himself on the day fixed for 
 redemption, in order to avoid receiving payment. In other words, it was a case of 
 fraud.
 
 216 A SHORT HISTORY OF ENGLISH LAW 
 
 extreme length ; with the result, that both parties were preju- 
 diced by the inability of either to make binding dispositions 
 of the property as a whole. But the principle has been pro- 
 ductive of fruit even in recent years ; and the recent applica- 
 tions of the doctrine of 'clogging the equity'^ will be familiar 
 to modern lawyers. 
 
 On the other hand, Equity in this period laid down rules 
 in fa^■our of the mortgagee, or owner of the legal estate, which 
 show, in the opinion of modern legislators, an almost excessive 
 respect for legal doctrine. Thus in Hedworth v. Primate,^ in 
 1662, and March v. Lee,^ in 1670, Equity tribunals established 
 the rule of Tacking, by which the owner of a second or later 
 equitable charge, who buys up the legal mortgage of the first 
 mortgagee, may squeeze out any intervening (equitable) incum- 
 brancer, of whose existence he had no notice when he lent his 
 money on the equitable charge.^ Again, in Shuttleicorth v. 
 Layrock,^ in 1684, and Pojje v. Onsloic,'' in 1692, Courts of Equity 
 formulated the doctrine of Consolidation; by which a mort- 
 gagor who has mortgaged two estates to the same mortgagee 
 cannot, after the day fixed for re-payment has gone by, compel 
 the mortgagee to allow one mortgage to be redeemed without 
 the other. ^ It is, however, quite worthy of note, that both 
 these rules were founded by judges who, though they were 
 then sitting in Equity tribunals, were, in fact, rather common 
 lawyers than equity judges.^ 
 
 Again, in the attitude of Equity towards the law of contract, 
 we notice a profound respect for the Common Law, tempered 
 g ^.g by equitable considerations. Not only did Equity 
 
 Perform- refusc to cuforcc Contracts invalid at Common Law ; 
 but, in one case, in its dislike of mere formalities, it 
 went beyond the strictness of the Common Law. Thus, a 
 contract under seal, in fact made without consideration, could 
 be enforced by an action at law, for historical reasons; but 
 
 ' Noakes v. Rice [1902] A.C. 24 ; Bradley v. Carritt [1903] A.C. 253. 
 
 2 Hardres, 318. ^2 Ventr. 337. 
 
 ■* The rule of tacking was abolished in 1874 by the Vendor and Purchaser Act 
 of that year (s. 7), but re\aved by the Land Transfer Act of 1875 (s. 129). 
 
 ^ 1 Vorn. 244. » 2 Vern. 286. 
 
 ^ The doctrine of consolidation is now applicable only where it has been expressly 
 reserved (Conveyancing Act, 1881, s. 17). It has been extended far beyond its 
 primitive simplicity {Pledge v. White [1896] A.C. 197). 
 
 ** The rule of tacking was laid down by Chief Baron Hale, Lord Keeper Bridg- 
 man, and Baron Rainsford ; the rule of consolidation by Lord Keeper Bridgman.
 
 REFORM BY EQUITY 217 
 
 Equity would not aid it by a decree of specific performance. 
 And though Equity admitted that 'any bond was good enough, 
 against an executor,'^ yet it would not allow a voluntary bond 
 to be paid out of assets until all creditors for value had been 
 satisfied.^ Moreover, courts of Equity early adopted the 
 principle, that specific performance would not be ordered where 
 damages were an adequate remedy ; and Lord Macclesfield 
 carried this restraint so far as to refuse a decree for transfer 
 of South Sea Stock, though at the time only a limited quantity 
 was procurable.^ Once more, the ' conscience ' element in 
 Equity refused to enforce the performance of an ' unreasonable,' 
 though not, technically, an illegal or oppressive contract ; * 
 and the later developments of the doctrine of ' equitable fraud,' 
 as applied to contracts, are well known.^ But the most valuable 
 of all the remedies of Equity, in such cases, was, not the mere 
 refusal to assist in oppression, but the active assistance afforded 
 to the oppressed by compelling the holder of an oppressive 
 document to deliver it up to be cancelled. This remedy was 
 applied by Lord Nottingham in 1680.^ Only in one respect 
 did Equity relax the law of contract. Generally speaking, 
 though professing themselves not to be strictly bound by the 
 words of the Statute of Frauds, equitable tribunals refused to 
 enforce contracts for which the statutory evidence of writing, 
 required by that statute,'^ was not forthcoming. But if the 
 defendant had fraudulently prevented the proper evidence 
 being used,^ or had admitted in his pleadings the terms of the 
 contract,^ or if, in reliance on the contract, the plaintiff had 
 incurred loss or liability in part performance of it,^° then a Court 
 of Equity would decree specific performance ; even though no 
 action lay at law. It will be observed, however, that even the 
 
 1 Edwards v. Countess of Warwick (1723) 2 P. Wms., at 176. 
 
 2 Jones V. Powell (1712) 1 Eq. Ca. Ab. 84 (Lord Harcourt). 
 
 3 Cud. V. Rutter (1719) 1 P. Wms. 569. 
 
 * Philips V. D. of Bucks (1683) 1 Vern. 227 (Lord Keeper Guilford). 
 
 ^ Notwithstanding Derry v. Peek (1889) L.R. 14 App. Ca. 337, the doctrine of 
 ' equitable fraud ' is still law. By virtue of it, the Court constantly refuses to decree 
 specific performance, and even orders the contract to be cancelled, where there has 
 been innocent misrepresentation {Redgrave v. Hurd (1881) 20 Ch. D. 1). All that 
 Derry v. Peek decided was, that no action of Tort could be based on ' equitable 
 fraud.' 
 
 ^ Skapholme v. Hart, Ca. temp. Finch, 477. '' 29 Car. II (1677) c. 3, s. 4. 
 
 ^Maxwell v. Mountacute (1719) Pre. Cha. 526 (Lord Macclesfield). 
 
 ^ Croyston v. Banes (1702) Pre. Cha. 208 (Sir John Trevor, M.R.). 
 
 ^'^ Butcher v. Stapley (1685) 1 Vern. 364 (Lord Guildford).
 
 218 A SHORT HISTORY OF ENGLISH LAW 
 
 Statute of Frauds does not in such cases make void the contract ; 
 it merely renders it unenforceable, i.e. creates a procedural, 
 not a substantial difficulty. 
 
 We have seen/ in dealing with the preceding period, that 
 the Court of Chancery had succeeded, without much trouble, 
 in escaping the threatened extinction of its impor- 
 tant jurisdiction in trusts. By common consent, 
 as has been pointed out, three classes of 'uses,' viz. (a) active 
 uses, (6) uses of leaseholds, and (c) 'uses upon uses,' had escaped 
 the meshes of the Statute of Uses, and, under the popular name 
 of 'trusts' (though there is no technical value in the word) had 
 completely re-established the doctrine of equitable interests, 
 which indeed, so far as 'pure' personalty was concerned, had 
 never been touched by the statute. It remained only for the 
 Chancellors of the Restoration and the eighteenth century to 
 fill up the outline sketched by their predecessors. 
 
 This task they performed b}' the application of several prin- 
 ciples which were, indeed, not new, but had not previously 
 been carried out to their logical consequences. 
 
 The first of these was the protection of the trustee's estate 
 against claims, founded on his delinquencies or acts, which 
 . would have been inconsistent with protection of the 
 of Trustee's beneficiaries. Obviously this doctrine could not be 
 ^ * ^ pushed too far, if the whole system of tenures were 
 
 not to go by the board ; the lord must have his rents, reliefs, and 
 other ordinary 'incidents.' But there were other liabilities of 
 the legal estate which stood on a different footing ; liabilities 
 in which the claimant occupied more or less the position of a 
 volunteer, or at any rate of a person seeking an unexpected 
 benefit. Thus, for example, it seemed hard that the cestui que 
 trust should lose his interest through the escheat or forfeiture 
 of the trustee's estate by the failure of the latter's heirs, or his 
 conviction or attainder for treason or felony. So far as escheat 
 was concerned, Chief Justice Bridgman was, indeed, though on 
 rather doubtful evidence, reported to have said, in Geary v. 
 Bearcroft,"^ that the trust would be enforced against the lord 
 taking by escheat ; and this view was repeated by Sir John 
 Trevor, M.R., in Eales v. England.^ But these were mere 
 
 ' Ante, pp. 100, 101. ^ (lOfiC) Part. 67 (felony). 
 
 ' (1702) Pre. Cha., at p. 202 (failure of heirs).
 
 REFORM BY EQUITY 219 
 
 dicta, and were opposed by dicta of equally eminent judges, 
 especially in the famous case of Burgess v. Wheate,^ afterwards 
 to be referred to ; and eminent text-book writers, who were 
 also judges,^ also expressed a contrary opinion. With regard 
 to forfeiture for treason, though Sir INIatthew Hale gave relief 
 to a mortgagor in 1G67, yet he guarded himself carefully against 
 being assumed to rule that the relief would be given in the 
 case of trusts ; ^ and Sanders,'* though he inclines in favour of 
 relief, can give no authority for his view. In fact it w^as not 
 settled until 1834,^ that neither the crime nor the failure of 
 heirs of the trustee should endanger the interest of the cestui 
 que trust. 
 
 With regard to the claims of a trustee's widow to dower, 
 the action of the Courts was more prompt, though, perhaps, less 
 logical. For, though it has always been recognized that a 
 wife is a purchaser for value. Lord Nottingham said, as early 
 as 1678,^ that it was the constant practice to relieve against 
 such claims ; and the rule was extended to claims of freebench 
 by the widows of copyhold trustees in 1681.^ Until quite 
 recently, women were so rarely made trustees, that the question 
 of claims to curtesy of trust estates does not appear to have 
 arisen. 
 
 An even more important protection for the interest of the 
 cestui que trust was gained when Lord Keeper Finch (afterwards 
 Lord Nottingham) in 1670,^ clearly enunciated the principle 
 that the debts of the owner of the legal estate cannot be en- 
 forced against the interest of the beneficiary ; and this rule was 
 definitely applied to trust estates by Lord Cowper, in 1715.^ 
 But the safety of the beneficiary from this danger was not 
 complete, until it had been ruled, that even the bankruptcy of 
 the trustee did not affect the cestui que trust's interests. This 
 protection was, howeyer, definitely secured in the year 1725, 
 by the case of Bennet v. Davis}^ 
 
 1 (1759) 1 Ed. 177. 
 
 ^ E.g. Gilbert, C. B., Law of Uses and Trusts (2d. edition), p. 10, followed by 
 Lord St. Leonards (Sugden) in the 3d. edition. (1811). 
 
 ' Pawlett V. A. G., Hardres, 465. (It must be recollected, that, even in the case of 
 treason, copyholds were forfeited to the lord of the manor, not to the Crown {Corn- 
 wall's Case (1683) 2 Ventr. 38).) 
 
 * Essay on Uses and Trusts, 253. ^ 4 & 5 Will. IV, c. 23. 
 
 * Noel V. Jevon, Freem. Cha. Ca. 43. ^ Bevant v. Pope, ibid., 71. 
 
 8 Burgh v. Francis, 1 Eq. Ca. Ab. 321. 
 
 9 Finch V. E. of Winchilsea, 1 P. Wms. 277. " 2 P. Wms. 316 (Jekyll, M. R.).
 
 220 A SHORT PIISTORY OF ENGLISH LAW 
 
 A second principle, early adopted by Chancery, consisted of 
 applying the rules of the legal estate, so far as possible, to equi- 
 table interests; with the result of making the resemblance 
 between the two so close, as sometimes to deceive the super- 
 ficial observer. Whether the adoption of this principle did not 
 destroy an opportunity of introducing desirable reforms into 
 land law, may well be doubted ; but it would, perhaps, have 
 been unreasonable to expect that even Courts of Equity in the 
 eighteenth century should show much boldness in that direc- 
 tion. Thus, though a widow was not allowed until 1833 to 
 claim dower out of her late husband's equitable interest of 
 inheritance,^ yet a husband was held entitled to curtesy in 
 the equitable interests of his wife;- and, generally speaking, all 
 rules as to inheritance,^ quantity of interest, limitation, and 
 rights of limited owners,^ which applied to legal estates, except 
 in so far as these depended directly on the maintenance of 
 seisin or possession of the land,^ were applied by analogy to 
 equitable interests. It was, however, laid down, in the well- 
 known case of Burgess v. Wheate,^ that there could be no escheat 
 of an equitable interest ; but that, on failure of the heirs of 
 the owner of an equitable fee simple, who had died intestate, 
 his interest should not be enforceable against the owner of the 
 legal estate. 
 
 No account of the law of trusts in this period would, of course, 
 be adequate without a reference to the Statute of Frauds; 
 statute of ^^^^ ^his reference is not so irrelevant as it might 
 Frauds appear in this chapter, for it is generally agreed 
 
 that the framing of the statute was left in judicial hands.^ 
 
 1 It appears that at one time there was considerable doubt on this point. In 
 Bodmin v. Vandependy (1685) 1 Vern. 356; Shower, P. C. 69, it was held that a 
 widow could not enforce her claim against the inheritance, when an active term was 
 outstanding ; but, where the term was satisfied, it was held (Dudley v. Dudley (1705) 
 Pre. Cha. 241) that relief would be granted to her. These were, however, legal 
 claims ; and though it was hold by Sir Joseph Jekyll, M.R., in 1732 (Banks v. Sutton, 
 2 P. Wms. 700), that a widow might be endowed out of an equity of redemption, this 
 decision was overruled in the following year by Lord Talbot, in the case of Chaplin 
 V. Chaplin (3 P. Wms. 229). The reasons are explained by Lord Redesdale in 
 D'Arcy v. Blake (1805) 2 Sch. & Lcf. 387. 
 
 2 Sweetapple v. Bindon (1705) 2 Vcrn. 536; Casborne v. Scarfe (1737) 1 Atk. 603. 
 ^Blackburn v. Graves (1675) 1 Mod. 102; Edwin v. Thomas (1687) 1 Vern. 489. 
 ■* See the general principle laid down by Lord Cowper in Watts v. Ball (1709) 1 
 
 P. Wms. 108. 
 
 ' E.g. failure of contingent remainders. ' (1759) 1 Ed. 177. 
 
 ' The credit is diversely and variously attributed to Lord Nottingham, Sir 
 Matthew Hale, and Sir Leolinc Jenkins.
 
 REFORM BY EQUITY 221 
 
 The Statute of Frauds had two substantial effects on the 
 law of trusts. In the first place, by requiring all creations of 
 trusts of lands to be evidenced by writing/ and all assignments 
 of trusts whatsoever, to be in writing,- the statute practically 
 elevated the creation and transfer of trusts to the dignity of 
 professional conveyancing, and, incidentally, dispelled the last 
 lingering doubt, which had even survived the statute of Richard 
 III,^ as to the assignability of trust interests. In the second, 
 by making equitable interests in land available for payment of 
 "the debts both of living and deceased cestids que trustent,^ it 
 fostered the view" that such assets were ordinary property. 
 Incidentally, by excepting from the requirement of written 
 evidence all trusts arising, 'by the implication or construction 
 of la w,'^ the statute revived a vexed question as to the proper 
 inference to be drawn from a voluntary conveyance of land, in 
 which no use was expressed. The Court of Chancery had been 
 strongly inclined to hold, that such a conveyance, where the 
 donee was not in loco filii to the donor, raised an implied use 
 in the donor's favour ; and this tendency, which was wholly 
 opposed to common law principles, was rather favoured by the 
 words of the statute. But by two useful decisions given by 
 Lord Hardwicke in 17-iO and the following year,^ it was at 
 length established, that a voluntary conveyance, even to a 
 stranger, does not of itself import a secret trust for the donor. 
 The rule is, of course, quite different where there is a purchase 
 in the name of a stranger. In that case, there is clearly a 
 presumption of a trust for the person who actually finds the 
 money. '^ 
 
 Finally in connection with the subject of trusts, it may be 
 mentioned that it was Lord King, not otherwise very eminent 
 as an Equity judge, who laid down, in the leading case of Keech 
 v. Sandford,^ decided in 1726, the great principle, that any 
 profit, direct or indirect, made by a trustee out of his position 
 as trustee, should be held by him on behalf of his cestuis que 
 trustent. In that case, the lord of a market refused to renew 
 an expired lease, w^hich had been held on trust, either to the 
 trustee as such or to the beneficiaries. He was willing, however, 
 
 1 Statute of Frauds (1677) s. 7. ^ Ibid., s. 9. ^ 1 Ric. Ill (1483) c. 1. 
 
 * Statute of Frauds (1677) s. 10. = Ibid., s. 8. 
 
 ^ Lloyd V. Spillet (1740) 2 Atk. 148; Young v. Peachy (1741) ibid., 254. 
 
 ^ Dyer v. Dyer (1788) Cox, 92. ^2 Eq. Ca. Ab. 741.
 
 222 A SHORT HISTORY OF ENGLISH LAW 
 
 to grant a renewal to the trustee personally. It was held that 
 the renewed lease formed part of the trust estate. 
 
 No account of Equity in this period would be in the least 
 adequate, which did not refer, however briefly, to the action of 
 ^ . . Chancery in building up the doctrine of the separate 
 Women's estate of a married woman. For, though the reports 
 show that, even before the Civil War, the doctrine 
 was recognized,^ yet it was the Civil War itself, with its 
 attendant cloud of family settlements, which ine\itably left 
 to the Restoration Chancellors the task of elaborating the 
 system. 
 
 At the common law, a wife's corporeal chattels passed to 
 her husband absolutely. He could, if he pleased, enforce, 
 Common o^ reduce into possession, her choses in action; 
 Law Rules ^^j^, if he did not do so, and predeceased her, they 
 survived to her. By virtue of this doctrine, he could also 
 collect the rents of her lands from the day of the marriage ; 
 but he did not obtain a ' real ' interest, or estate, in her lands 
 of inheritance, until the birth of issue by her capable of in- 
 heriting. On the birth of such issue, however, if the wife were 
 actually seised of a present estate of inheritance, the seisin 
 passed to the husband for his life, under the name of 'tenant 
 by the curtesy.' The wife, from the day of the marriage, 
 ceased to have any contracting power ; her contracts, if they 
 were valid at all, were only valid as the contracts of her hus- 
 band, and he alone (if any one) was liable on them. He was 
 also liable for her ante-nuptial debts, whether he received 
 any property with her, or not ; - and for her torts committed 
 before or during the marriage. In a word, her legal personality 
 (but not that of her heirs) was merged in his ; to such an extent 
 that, though the husband could not affect the inheritance of her 
 land, yet the wife could not dispose of it otherwise than by 
 Fine. She had no power at all to make a will without his con- 
 sent ; and he could not even authorize her to make a will of 
 land."^ 
 
 It was against the common law doctrine which gave all the 
 
 ' Gorge v. Chansey (1639) 1 Rep. in Cha. 67 (Lord Coventry). 
 
 ^ It was ruled, even in Equity, after some doubt, that the husband's liability did 
 not continue after the wife's death ; even though he had received a large property 
 with her (Reard v. Stanford (1735) Ca. temp. Talbot, 173). 
 
 ' 34 & 35 Hen. VIII (1542) c. 5, s. 14.
 
 REFORM BY EQUITY 223 
 
 wife's personalty to her husband absohitely, that the first 
 ' Separate revolt occurred. The case before the Civil War/ 
 
 ^® above alluded to, was that of a married woman 
 
 separated from her husband, and may, on that account, be 
 regarded as exceptional. Moreover, it only affected personalty. 
 But from the Restoration onwards, it is clear that Chancery 
 would protect any gift to a married woman for her * separate 
 use,' or ' sole and separate use,' and would, to carry out the 
 donor's intention, effectually protect such gift from the debts, 
 control, or engagements of the husband.^ For some time there 
 lingered a doubt whether the gift could be made before mar- 
 riage ; ^ and, for some less time, whether it could be made with- 
 out the intervention of trustees.^ But these two doubts were 
 ultimately settled in the affirmative ; though, as the story of 
 Roger North's brother Dudley's marriage shows,^ a direct gift 
 of chattels to a married woman for her separate use is of little 
 value. By the time of Addison, the practice of limiting a sepa- 
 rate estate had grown so far as to call for protest. 
 
 But Equity did not content itself with merely protecting 
 property settled upon a married woman ; in certain cases it 
 Equity to a interfered to procure a settlement of her property. 
 
 et ement rpj^^ converse of the husband's right to his wife's 
 personalty was his liability to maintain her ; and, if he had 
 manifestly shown himself incapable of performing this liability, 
 or been guilty of misconduct. Equity would not allow him or his 
 creditors to claim property coming to the wife, without making 
 some provision for her. The first instance of the exercise of 
 this jurisdiction appears to have been in the case of Packer v. 
 Wyndham,^ where a man had clandestinely married a wealthy 
 lunatic. The ecclesiastical court pronounced in favour of the 
 marriage ; but Chancery refused to allow the wife's fortune, 
 which, happily, was in its possession, to be paid to the husband, 
 until he had made a suitable settlement on his wife. This 
 
 1 Gorge v. Chansey (1639) 1 Rep. in Cha. 67. 
 
 2 Early examples are Darcy v. Chute (1663) 1 Cha. Ca. 21 (showing the limits of 
 the doctrine) ; Haymer v. Haymer (1678) 2 Vent. 343 ; Cotton v. Cotton (1693) 2 
 Vern. 290. 
 
 ^ Finally set at rest by the leading decision in Tullett v. Armstrong (1838) 1 Beav. 1. 
 
 *Bennet v. Davis (1725) 2 P. Wms. 315. 
 
 6 Lives of the Norths, II, par. 185. (The lady was the daughter of the great Sir 
 Robert Cann, of Bristol.) 
 
 ® (1715) Pre. Cha. 412. The date of the order decreeing a settlement is not 
 given ; but it must have been a good deal before 1715.
 
 224 A SHORT HISTORY OF ENGLISH LAW 
 
 * equity to a settlement' soon became a settled doctrine of the 
 Court, and was enforced not only against the husband himself, 
 but his creditors claiming through him ; ^ though, somewhat 
 narrowly, the Court refused to extend the equity in favour of 
 children, after the death of their mother.^ It is to be observed, 
 that the doctrine was, in a sense, negative. Where the hus- 
 band's title was legal, the Court could not interfere ; it was 
 only where he was obliged to resort to a Court of Equity (in- 
 cluding an ecclesiastical court) ^ that the opportunity for impos- 
 ing terms arose. 
 
 Naturally, there was some little doubt as to the wife's powers of 
 dealing with this new kind of property. The Common Law was so 
 ^,... , unfamiliar with the notion of alienation bv a married 
 
 WlIC S 111 1 • *^ ft 
 
 Powers of woman, except through the formality of a Fine, 
 isposi 10 ^1^^^ .^ ^^j^ ^^ Equity to build up the new doctrine. 
 
 From the earliest cases, it appears that, with regard to pure 
 personalty, a married woman's right to dispose of her separate 
 estate, even by will, was unquestioned ; in the middle of the 
 eighteenth century, Lord Hardwicke laid it down, that she 
 might 'dispose of it by an act in her life or will,' without taking 
 the trouble to quote an authority.'* But, with regard to land, 
 there was more hesitation. Li the case last referred to, Lord 
 Hardwicke, though he inclined to think that the married woman 
 might dispose of separate real estate by the medium of a power 
 of appointment,^ or, of course, bj^ a Fine, thought that she could 
 not defeat the expectations of her heirs by an ordinary will. 
 Again, it had been held as early as 1723, by Sir Joseph Jekyll, 
 INI.R., that the bond debt of a married woman was payable out 
 of her separate personalty ; "^ but it was not until 1778, in the 
 well-known case of Hulme v. Tenant,^ that the liability was 
 extended to her separate land. When this point was reached, 
 however, the alienability of the separate estate had proceeded 
 
 ^Jacobson v. WiUia?ns (1717) 2 P. Wms. 382 (Lord Cowper). 
 
 ^ Scriven v. Tapley (1704) Anibl. 509 (Lord Xorthington). 
 
 ' Nicholas v. Nicholas (1720) Pre. Cha., at p. 548. There is a note in Tothill's 
 Reports of a case of Tanfield v. Davenport (1638) p. 114, which, if correct, would 
 make the doctrine of 'equity to a settlement' date back to Charles I's time. But it 
 is too vague to he trustworthy. 
 
 * Peacock v. Monk (1750) 2 Ves. Sr., at p. 191. Perhaps Lord Hardwicke for- 
 got the exception of reversionary personalty. 
 
 ' This had been previously admitted in Bertie v. Lord Chesterfield (1723) 9 Mod. 
 31. 
 
 « Norton v. Turvil, 2 P. Wms. 144. " Bro. C.C. 16 (Lord Thurlow).
 
 REFORM BY EQUITY 225 
 
 so far, that there was danger lest the whole elaborate structure 
 reared for the protection of the married woman should fall by 
 its own weight. 
 
 For it is not difficult to see that, to place a married woman 
 in the legal position of a man, as regards her separate property, 
 is to afford her very little real protection. A married woman 
 Restraint on needs to be protected, not only against her hus- 
 Anticipation band, but against herself. It is idle to secure to 
 her separate property ; if the first use she makes of her security 
 is to alienate the property. Accordingly, but not until the 
 limits of Equity reform had been nearly reached, Lord Thurlow, 
 the last of the reforming Chancellors, made an attempt to save 
 the situation, by inserting the 'restraint on anticipation' clause, 
 i.e. the provision in a settlement which makes the separate 
 estate (either capital, or income, or both) of a married woman, 
 incapable of alienation or anticipation, direct or indirect, so long 
 as she remains a married woman. Those readers who have 
 followed the history of the earlier periods of English law, will 
 readily realize how strongly the new clause was opposed to the 
 current of judicial decisions, which had been all for breaking 
 down restraints on alienation. More than that. Just at the 
 very time when the Court of Chancery was adopting the 're- 
 straint on anticipation,' it was actually formulating the Rule 
 against Perpetuities,^ designed to prevent the tying up of prop- 
 erty. It is not to be wondered at, therefore, if Lord Thurlow's 
 project should at first have met with little sympathy in the 
 Courts. Even Lord Thurlow himself, in Pyhus v. Smith,^ 
 was compelled to uphold the alienation of settled property by a 
 wife 'while the wax was yet warm upon the deed.' But the 
 evils revealed by that case set the Chancellor upon devising an 
 improved clause ; and at length, in 1817,^ even the cautious 
 Lord Eldon admitted the validity of the restraint. Whether 
 such very exceptional treatment of the property of a married 
 woman can be justified at the present day, is an open question ; 
 and modern legislation has allowed the restraint to be removed 
 
 1 E.g. Stanley v. Leigh (1732) 2 P. Wms.,at p. 689 (Jekyll, M.R.) ; Stephens v. 
 Stephens (1736) Ca. temp. Talbot, 228; Heath v. Heath (1781) 1 Bro. C.C. 147 
 (Lord Thurlow) ; Jee v. Audley (1787) 1 Cox, 324 (Kenyon, M.R.) ; finally settled 
 in Cadell v. Palmer (1833) 1 CI. & F. 372. 
 
 2 (1791) 3 Bro. C.C. 340. 
 
 3 Jackson v. Hobhouse, 2 Mer. 483. Perhaps the credit of the first actual decision 
 is due to Lord Alvanley (Socket v. Wray (1793) 4 Bro. C.C. 483).
 
 226 A SHORT HISTORY OF ENGLISH LAW 
 
 in certain cases.^ But it is indubitable, that the original intro- 
 duction of the clause is one of the most striking efforts of judicial 
 law reform in the eighteenth century. 
 
 We come lastly to the greatest of all the achievements of Equity 
 in this period, viz., the acquisition of that jurisdiction in the 
 Admnstra- Euinistration of the estates of deceased persons, which 
 tion of has brought so much grist to the mills of Chancery. 
 
 The history of that acquisition has, perhaps, never 
 been adequately told ; certainly it is instructive and interesting. 
 
 At the end of the sixteenth century, the jurisdiction in matters 
 of the estates of deceased persons was in a thoroughly unsatis- 
 factory state. Owing to the jealousy with which the King's 
 Courts had for centuries excluded the ordinary testamentary 
 tribunals from any question concerning land, all disputes con- 
 cerning the validity and construction of devises, and all ques- 
 tions of inheritance, had to be decided in the courts of Com- 
 mon Law. Similarly, to the very limited extent to which the 
 creditor of a deceased person could enforce payment of his 
 debt out of the real estate of his debtor, he had to sue the 
 heir in a Common Law tribunal. In the same wa}', the 
 recovery of debts by and against personal representatives 
 could, in effect, only be carried on in the Common Law courts; 
 for, if the Church courts had ever afforded adequate process in 
 such cases, the contempt into which they had fallen since the 
 Reformation, and the increasing efficiency of Common Law 
 remedies, had virtually robbed them of their jurisdiction. To 
 this necessity of resorting to the formal tribunals of the Com- 
 mon Law, the administration of assets owes two at least of its 
 most marked and unsatisfactory features at the present day, 
 viz., the rights of Retainer and Preference. Liasmuch as an 
 executor could not sue himself in a Common Law court, he was 
 allowed to retain any debt due to him from the testator, in 
 priority to all other creditors of the same degree ; the argument 
 being, that he ought not to be in a worse position than a stranger, 
 who could have sued the executor at once and compelled him 
 to pay.^ The last consideration gave rise to the equally un- 
 
 * Conveyancing Act, 1881, s. 39; Married Women's Property Act, 1893, s. 2; 
 Trustee Act, 1893, s. 45. 
 
 - In the case of administrators, the Courts of Probate (not very effectively) 
 framed their bond of security in such a way, that it prevented, or was supposed to 
 prevent, the operation of these technical rules.
 
 REFORM BY EQUITY 227 
 
 satisfactory right which the personal representative still has, of 
 paying one creditor before others of the same, or (now) even of a. 
 higher degree.^ For, if the executor had been sued by the creditor^ 
 his only defence would have been ' lAene administravit' ; and 
 ♦ this defence he could not, obviously, support, as long as assets 
 remained. 
 
 On the other hand, for authority to deal with the personal 
 property of his testator or intestate, the personal representative 
 was obliged, as we have seen,^ to resort to the ecclesiastical 
 tribunal, which still retained all probate and administrative 
 jurisdiction. In such a tribunal alone could the personal rep- 
 resentative be compelled to account to the beneficiaries for 
 his administration ; and in it alone lay any process to compel 
 the payment of a legacy, or share of an intestate's estate. 
 
 Finally, in the event of any creditor or beneficiary requiring 
 the aid of any extraordinary help in securing payment of his 
 debt or legacy, he had to resort to an Equity tribunal for assist- 
 ance. Particularly, if he wished to enforce payment out of the 
 real estate of the deceased. According to Common Law rules, 
 the simple-contract creditor and the legatee had no claim against 
 the land of their deceased debtor; while the Statute of Wills of 
 1540, by enabling the debtor to devise the bulk of his lands, had 
 enabled him also to defeat his specialty creditors, by devising away 
 his land to strangers.^ For, until the passing of the Statute of 
 Fraudulent Devises, in 1691,^ no action lay by the creditor 
 against the devisee. But, since the passing of the Statute of 
 Wills, it had become increasingly common for testators to charge 
 their real estate, directly or indirectly, with the payment of 
 debts and legacies ; and as neither the Common Law nor the 
 ecclesiastical tribunals had any adequate machinery for en- 
 forcing such charges,^ the claimant naturally resorted to Chan- 
 
 « Re Samson [1906] 2 Ch. 584. 
 
 2 Ante, p. 62. An attempt to invoke the jurisdiction of Chancery to decide as 
 to the validity of a will seems to have been made, with some success, as early as 
 1574 (Mayor of Faversham v. Parke, Acta Cancellariw, 410). But perhaps this 
 was a will of lands. 
 
 ' Note that a devise to the heir would not be effective for this purpose. For, 
 by Common Law rules, a devise to an heir is nugatory. 
 
 43 W. & M. c. 14. 
 
 ^ Of course there was also the objection, that ecclesiastical courts could not 
 touch land. It is interesting to note, that for some time after the passing of the 
 Statute of Wills it was regarded as doubtful whether there could be a suit in the 
 Church courts for a legacy charged on land (cf. Paschall v. Keterich (1557) Dyer, 
 151b, with an anonymous case of 1567 {ibid., 264b)).
 
 228 A SHORT HISTORY OF ENGLISH LAW 
 
 eery, which, with its elaborate organization of Masters, Clerks, 
 Registrars, and the like, would proceed to take the accounts of the 
 deceased's property, and, if necessary, direct a sale of his 
 land, and payment out of the proceeds. Thus arose, in distinc- 
 tion from Legal Assets, or estate for which an executor would have 
 to account in a common law action by the creditor, before he 
 could secure a verdict of phne administravit, a new category 
 of Equitable Assets, or property which could only be reached 
 through the medium of a Court of Equity ; and, even though 
 statutes like the Statute of Frauds occasionally removed items 
 from the latter to the former category,^ sufficient of the latter 
 remains to the present day to preserve the distinction. To 
 these 'equitable assets' the Court of Chancery applied equitable, 
 not legal principles ; and, so far as they were concerned, the doc- 
 trines of retainer and preference, and the elaborate degrees of 
 priority of different classes of debts, had simply no existence. 
 
 With the commencement of the seventeenth century, we 
 
 notice a change, which may fairly be described as a movement 
 
 towards unity of iurisdiction. Though, as has been 
 
 Competition . o , Vw i. • i- i i 
 
 for the pomted out," the Reformation did not deprive the 
 
 Church courts of their testamentary jurisdiction, it 
 had undoubtedly lowered their prestige ; and we find attempts, 
 in the early years of the seventeenth century, to bring before 
 lay tribunals matters which at one time unquestionably belonged 
 to the Church courts. The tendency was not confined to matters 
 like defamation and perjury. Thus, in 1611, a plaintiff sued for 
 a legacy in the King's Bench ;^ and, though he was unsuccessful, 
 no objection was raised to the jurisdiction. It is interesting to 
 note, that the form of action was Assumpsit ; on the (fictitious) 
 promise to pay, alleged to have been given in consideration that 
 the plaintiff' would forbear to sue. This ingenious device was 
 pushed forward during the period of the Commonwealth, when, 
 of course, the Church courts were suspended;^ and, after the 
 Restoration, it made good its footing,^ though there was a serious 
 objection to the form of the action in the possible plea of want of 
 consideration for the alleged promise to pay. Of course there 
 
 ■ E.g. by making trust estates in foe simple assets for payment of debts (29 Car. 
 II n077) f. ;i, ss. 10-11). 
 
 2 Ante, pp. 74, 75. ' Smith v. Johns, Cro. Jac. 257. 
 
 * The critical moment may be seen in Tooke v. Fitz-John (1657) Hardres, 96. 
 
 ' Nicholson v. Shirman (1661) 1 Sid. 45.
 
 REFORM BY EQUITY 229 
 
 was no real consideration ; and, though Lord Mansfield, with 
 his usual breadth of view, refused to allow the technical objection 
 to prevail,^ Lord Kenyon, a quarter of a century later,^ closed 
 the doors of the Common Law courts against such actions. 
 
 Long before that time, however, the superior machinery of 
 Chancery had practically succeeded, not only in depriving the 
 ecclesiastical courts of their monopoly, but in preventing actions 
 for legacies becoming really frequent in the Common Law courts. 
 Lord Mansfield, frankly, though with regret, in the case of 
 Atkins V. Hill,^ explains the position. It was at least doubtful 
 if the Common Law court could make an executor account ; 
 for the common law Writ of Account only lay, properly speaking, 
 against bailees, and the legatee had not bailed the goods to the 
 executor.^ Again, the weapon of 'discovery,' or interrogatories, 
 peculiar to Chancery, was especially valuable in such cases. ^ 
 Again, by the use of injunctions, vexatious suits against 
 personal representatives could be stopped, and the assets 
 administered properly and leisurely.^ It is, in fact, abundantly 
 clear, that, by means of these and other attractions, the 
 Court of Chancery had, not merely acquired a share of 
 administrative jurisdiction before the end of the seventeenth 
 century,^ but had, by the end of the eighteenth century, practi- 
 cally secured the lion's share of that jurisdiction.^ Li this some- 
 what invidious position, it at first maintained a delicate affec- 
 tation of respect for the ecclesiastical tribunals which it had 
 plundered ; ^ but, inasmuch as this profession was accompanied 
 by the inconsistent practice of entertaining suits even when pro- 
 ceedings had already been commenced in the Church courts,^'' 
 and, finally, of actually pronouncing on the validity of a will 
 
 1 Haiokes v. Saunders (1775) Cowp. 289. 
 
 2 Decks V. Strutt (1794) 5 T. R. 690. 
 
 ' (1775) Cowp., at p. 288. (The writer has traced back the Chancery jurisdic- 
 tion in actions for legacies to the year 1600 (Awbry v. George, Acta Cancellarice, 
 757; Browne v. Ricards, ibid., 761). But in the second of these cases, the Court 
 admitted that questions as to the validity of wills were for the ecclesiastical tribunal.) 
 
 * This objection was taken as early as 1557 (Paschall v. Keterich, Dyer, 151b, 
 note). 
 
 ^ Morrice v. B. of England (1736) Ca. temp. Talbot, 217. (In this case the 
 Chancellor fully admits the concurrent jurisdiction of the Common Law courts.) 
 
 ^Robinson v. Bell (1690) 2 Vern. 146. 
 
 ''Noel V. Robinson (1682) 1 Vern. 93; Jenks v. Holford (1682) 1 Vern. 61 (Lord 
 Nottingham). 
 
 8 Atkins V. Hill (1775) Cowp., at p. 288 (Lord Mansfield). 
 
 9 Nicholas V. Nicholas (1720) Pre. Cha. 546. 
 " Wright V. Black (1682) 1 Vern. 106.
 
 230 A SHORT HISTORY OF ENGLISH LAW 
 
 itself,^ it is probable that the judges and officials of the ecclesiasti- 
 cal tribunals derived scant satisfaction from the lip reverence of 
 their successful rivals. 
 
 So far as the new jurisdiction of Chancery involved the de- 
 cision of purely testamentary questions, it took over the existing 
 ecclesiastical law, which was, in effect, Roman Law.^ The 
 attitude of the Court towards the doctrines of the Common Law 
 has partly appeared from the account already given of the 
 growth of the new jurisdiction ; but a better idea of it will be 
 gained by a brief statement of the four great and novel principles 
 evolved by the Chancellors of this period in dealing with the 
 administration of assets. 
 
 The doctrine of marshalling, which is really an application of 
 the great Roman principle of subrogation, was not confined in 
 its scope to the assets of deceased persons ; but it is in that 
 connection that its chief importance lies. As we have said, the 
 Common Law recognized different classes of debts, having various 
 priorities. Broadly speaking, simple-contract creditors could 
 
 , onlv claim to be paid out of personaltv ; creditors 
 
 by specialty in which the heirs were bound could also 
 claim to be paid out of real estate descended (and, after 1G91, 
 devised). If a specialty creditor chose to sue the executor and 
 get paid out of personalty. Chancery could not, or would not, 
 prevent him ; but if he failed to get payment in full out of the 
 personalty, and then came to Chancery for help in making the 
 realty liable, the Court would not help him until he had allowed 
 the simple-contract creditors to take out of the land an amount 
 equal to that which he (the specialty creditor) had taken out of 
 the personalty.^ Or again, in the above circumstances, if, 
 
 1 Gofss V. Tracy (1715) 1 P. Wms. 287. It is true that this was a wall of lands, 
 with which the eeclesiastical court could not concern itself, and that, for sonic time, 
 it was held that, in a ease of pure personalty. Chancery could not pronounce on the 
 validity of the will (Archer v. Morse (1686) 2 Vern. 8; Kcrrich v. Branshy (1727) 
 7 Bro. P.C. 4.'j7). But, ultimately, under cover of deciding on the validity of 
 particular provisions in a will. Chancery acquired the power of pronouncing on the 
 will as a whole {Marriott v. Marriott (1725) 1 Stra. 666). In Barnsley v. Powel 
 (1748) 1 Yes. 119, Lord Ilardwicke took the bold course of decreeing the executors 
 under a will actually admitted to probate, to consent to a revocation of probate in 
 the next term. After this, it would have been idle to deny the practical power of 
 Chancery to decide on the validity of wills ; though Lord Mansfield could still deny 
 it in theory {Atkins v. Hill (1775) Cowp., at p. 287). 
 
 * Atkins V. Hill, uhi sup., at p. 287 (Lord Mansfield). 
 
 ' Of course, if the specialty creditor had a legal claim against the devisees (e.g. 
 after 1691), he could satisfy it by an action at law; and the Chancery doctrine 
 would not apply.
 
 REFORM BY EQUITY 231 
 
 after all debts paid, there was a balance of personalty, this would 
 go, not to the legatees, but to the devisees of the real estate ; 
 for, in view of Equity, which in this respect agreed with the 
 Common Law, the real estate ought not, as between the bene- 
 ficiaries, to have been resorted to for payments of debts, until 
 the personalty was exliausted. The former was a case of 'mar- 
 shalling ' as between creditors ; the latter a case as between 
 beneficiaries. Owing to recent changes in the law,^ marshalling 
 between creditors is now virtually extinct ; ^ but marshalling as 
 between beneficiaries is still quite common. It is, therefore, 
 interesting to note that this doctrine, though foreshadowed in a 
 case of 1664, decided by Lord Clarendon,^ is virtually the creature 
 of Lord Nottingham.^ It is obvious that it involves an elaborate 
 foundation of rules as to the 'order of resort,' i.e. of the order in 
 which, apart from any intention of the deceased, the different 
 classes of his assets shall be made available for payment of 
 debts, or, which amounts to the same thing, the order of priority 
 in which the different classes of beneficiaries may claim. These 
 rules were also the work, mainly, of the Chancellors of this 
 period ; but to go into details would make this chapter too long. 
 Briefiy, they depend on three principles — (a) that personalty is 
 the primary fund for payment of debts, (b) that the devisee or 
 legatee of a specific thing is preferred {quoad that thing) to a 
 general legatee, (c) that any express beneficiary is preferred to 
 the heir or next-of-kin, who only take in default of disposition. 
 
 The second of the peculiar doctrines of Equity evolved in 
 connection with the administration of assets in this period, is 
 the doctrine of conversion, which must, of course, be carefully 
 distinguished from the Common Law tort of that name.^ By 
 the equitable doctrine of Conversion, land directed 
 by its owner to be sold, i.e. directed in a binding 
 settlement which duly takes effect, will be regarded as personalty, 
 not as realty, from the delivery of the settlement ; whilst, 
 on the other hand, money or other personalty directed to be 
 invested in the purchase of freehold or copyhold lands, will be 
 regarded as real estate from the date of the direction. To the 
 
 1 E.g. Administration of Estates Act, 1869. 
 ^ I.e. in administration of assets. It can easily arise inter vivos. 
 ' Armitage v. Metcalf, 1 Ch. Ca. 74. 
 
 ^ Anon. (1679) 2 Ch. Ca. 4. The leading case is Clifton v. Burt (1720) 1 P. Wms. 
 679. 5 ^J^te, p. 142.
 
 232 A SHORT HISTORY OF ENGLISH LAW 
 
 layman, the doctrine appears to be highly artificial and academic. 
 Its practical result, in the cases puti is to cause the property to 
 pass under the will (or intestacy, as the case may be) of the 
 beneficiary for whom it is destined, as personalty, or as realty, 
 whether the direction of the settlor has actually been carried out, 
 or not. Obviously, so long as the distinction between realty and 
 personalty is recognized by English law, it is of great importance 
 to know into which category a particular fund falls ; and it would 
 hardly be fair, that the beneficial destination of a fund should 
 depend upon whether third parties, usually trustees, had or had 
 not promptly carried out the settlor's directions. It was, un- 
 doubtedly, this last consideration which led Lords Harcourt and 
 Cowper, in the leading case of Lingen v. Savray, in 1711,^ to 
 accept the doctrine, which had previously been hinted at by 
 Lord Guilford^ and Lord Jeffreys.^ But it must be confessed that 
 a somewhat doubtful qualification was added by Lord Thurlow 
 in the famous case of Ackroyd v. Srnithson, in 1780,^ when the 
 Chancellor decreed that conversion directed by a will was ' for 
 the purposes of the will only.' In that case John Scott, after- 
 wards Lord Eldon, acquired fame by persuading the Court that, 
 notwithstanding a direction in a will to sell the whole of the 
 testator's real estate, and notwithstanding an actual realization, 
 any surplus remaining after the performance of the purposes for 
 which realization was directed, would go, not to the residuary 
 legatees or next-of-kin, but to the residuary devisee or heir. 
 
 The third of the special equitable doctrines we are now con- 
 sidering is that known as satisfaction or performance. It pro- 
 ceeds on the assumption, that if a man has entered into an obli- 
 gation to perform a certain act, or, in one case, has expressed 
 an intention to confer a benefit, any subsequent benefit conferred 
 by him on the obligee or intended beneficiary, which substan- 
 g . . tially, though not technically, fulfils the obligation, 
 
 or may be regarded as an execution of the intended 
 benefit, will have that effect. But there is, of course, this differ- 
 ence between the two cases. If a man enters into a legal ob- 
 ligation, the obligee or creditor is entitled to say that he will 
 take nothing less than literal performance. Therefore, in such 
 a case, all that Equity can do, is to prevent him claiming the 
 
 1 1 P. Wms. 172. 2 Keltlehy v. Atwood (1684) 1 Vern. 298. 
 
 ^ Knights v. Alkyns (1686) 2 Vern. 20. " 1 Bro. C.C. 503.
 
 REFORM BY EQUITY 233 
 
 substitute as well, if he insists on his legal right to exact fulfil- 
 ment. Where the intended benefit is a pure gift, which, being 
 executory, can be revoked, e.g. a legacy, the latter provision 
 will, if considered by the Court to be intended as a substitute, 
 actually 'adeem,' or take away, the first. 
 
 It is in connection with legacies that we trace the begin- 
 nings of the doctrine of satisfaction at the commencement of 
 the eighteenth century. In the case of Heme v. Heme, decided 
 in 1706 by Lord Cowper, a husband had, in his marriage articles, 
 agreed that his wife should, at his death, over and above her 
 'widow's third,' have a legacy of £800 and certain furniture and 
 jewels, and that such provision should not debar her from any- 
 thing which he should give her ' by will or writing.' The husband 
 died, having bequeathed his wife a legacy of £1000 ; which she 
 claimed in addition to the £S00. But the Court held, that the 
 legacy was a ' satisfaction ' of the articles ; and compelled the 
 widow to choose between them. Similar cases, of ordinary 
 debts satisfied by legacies, appear immediately in the books ; ^ 
 and though there is, in some directions, an apparent reluctance 
 to accept the rule, yet, after the decision by Lord Talbot, in 
 1735, of the leading case of Lechmere v. Lechmere,'^ in which the 
 property agreed to be settled was merely left to descend to an 
 heir of the beneficiary, there could be no question as to its 
 orthodoxy. It is, however, an important qualification to bear 
 in mind, that it is much easier to raise a case of satisfaction 
 against a person in loco filii to the person from whom the benefit 
 proceeds, than against a stranger. For Equity ' leans against 
 double portions ' ; though it will only allow the other persons 
 in loco filiomm to object to them. 
 
 The fourth and last of the great doctrines of Equity on the 
 subject of the administration of assets is the doctrine of election. 
 It grows naturally out of the doctrine of satisfaction ; and is, 
 indeed, foreshadowed in the early case of Heme v. Heme, before 
 alluded to.^ As was said above. Equity has no power, as a 
 general rule, to compel a man to forego a legal right ; it can only 
 refuse to help him if he claims the equitable substitute for it. 
 
 ^E.g. Talbot v. D. of Shrewsbury (1714) Pre. Cha. 394 (Lord Harcourt); 
 Chanceys Case (1717) 1 P. Wms. 408. 
 
 2 Ca. temp. Talb. 80. 
 
 ' (1706) 2 Vern., at p. 556. ' If she will take the benefit of the will, she must 
 suffer the will to be performed throughout.'
 
 234 A SHORT HISTORY OF ENGLISH LAW 
 
 In other words, he is entitled to choose whether he will abide by 
 his legal right, or take the benefit offered in exchange. 
 The same principle governs the later and more familiar 
 application of the doctrine of 'election.' If a settlor pro- 
 fesses to give A's property to B, and to give some of his own (the 
 settlor's) property to A, A can, of course, refuse to part with his 
 property to B. But, on the other hand, if he refuses to carry out 
 the settlor's intention with regard to B, at least to the extent of 
 compensating him out of his own (A's) property, he cannot claim 
 the benefit proffered by the settlor. He cannot 'approbate and 
 reprobate'; he must 'elect for or against the settlement.' As 
 has been said, the first application of the doctrine is clearly fore- 
 shadowed in Heme v. Herne;^ the second is explicitly adopted 
 in another case of the same year, viz. Noys v. Mordaunt.^ In 
 the last case. Lord Cowper seems to restrict the doctrine to the 
 case of rivalries between brothers and sisters ; and there can 
 be little doubt that the Roman doctrine of collatio bonorum 
 (known in the vernacular as 'hotchpot') had a good deal to do 
 with originating the doctrines of Satisfaction and Perform- 
 ance. But in the slightly later case of Streatfield v. Streatfield, 
 decided in 1735,^ Lord Talbot stated the principle in perfectly 
 general terms ; and it is now generally admitted to apply in all 
 cases. 
 
 It is not, of course, pretended for a moment, that the whole of 
 the work of judicial reform, in the century following the Restora- 
 ^ ^ tion, was effected bv the Court of Chancerv. That the 
 
 Other . ' . 
 
 Sources of largest share is to the credit of the Chancellors and 
 *""' ^ Master of the Rolls, can hardly be denied ; and 
 
 therefore the bulk of this chapter has been devoted to their 
 achievements. But, as is well known, the jurisdiction by ' English 
 Bill ' was exercised by the Court of Exchequer from early times 
 until 1841 ; and, in the hands of men like Sir Matthew Hale, 
 the Atkins', Eyre, and Gilbert, that jurisdiction was not likely 
 to be unproductive. 
 
 Nor should the splendid services of Lord Mansfield, in a 
 slightly later period, be forgotten. Not only did he and Lord 
 Camden vigorously uphold the liberty of the subject in days 
 
 1 (1706) 2 Vern. 555. 2 (1706) ibid., 581. 
 
 3 Ca. temp. Taib. 176.
 
 REFORM BY EQUITY 235 
 
 when that libert}" was only too likely to suffer ; ^ but he widened 
 the jurisdiction of the King's Courts by adopting the principles 
 of the Law Merchant into the Common Law, and thus rendering 
 it suitable to deal with the great commercial expansion which was 
 taking place. Finally, by his well-known decision in Moses v. 
 Macferlan," delivered when he had been onh' four years upon the 
 Bench, Lord Mansfield laid down the great and truly equitable 
 principle which is the parent of the whole modern doctrine of 
 Quasi-contract: that where the defendant is 'obliged by the 
 ties of natural justice and equity,' ^ to pay or repay money, no 
 technical objections as to the form of action, or the absence of 
 consideration, will be allowed to defeat the plaintiff's claim. But 
 if this chapter has not succeeded in proving the thesis with which 
 it started : that to judicial reform was due whatever of legal 
 progress there was in the century following the Restoration, 
 it is already too long, and must now close. 
 
 Only, in conclusion, the reader can hardly spare a regret, that 
 this beneficent process of adjusting the law to the development 
 of social needs, should have come to an abrupt termination in the 
 last quarter of the eighteenth century. But, with Lord Eldon 
 on the woolsack and Lord Kenyon on the King's Bench, the 
 channels of Equity became choked with the stones of precedent 
 and the weeds of form ; and the fountains of justice ran slowly 
 and painfully, till the sweeping hand of Parliamentary Reform 
 released the flow again. Lest it should be said that this criticism 
 is vague and unfounded, the writer may be permitted to mention 
 two obvious and gross evils, which the legislature could hardly 
 have been expected to anticipate, but which a free application of 
 judicial discretion might have nipped in the bud. One is the 
 evil of 'tied' public-houses, under which brewers, publicans, 
 and the public alike groan, but which could have been stopped 
 at once by a liberal interpretation of the established principle of 
 'restraint of trade,' exercised by the Court of Chancery in its 
 mortgage jurisdiction. Had the Courts boldly declared, that 
 the liquor license was a monopoly supposed to be conferred for 
 the public good, and, therefore, not capable of being restricted 
 by private contract, the 'tied house' system could- never 
 
 ^Wilkes V. Wood (1763) 19 St. Tr. 1153; Entick v. Carrington (1765) ibid., 1030; 
 Leach v. Money (1765) ibid., 1001. 
 
 ^ (1760) 2 Burr. 1005. 3/Wd.,at p. 1030.
 
 236 A SHORT HISTORY OF ENGLISH LAW 
 
 have come into existence. The second example is that of 
 the company promoter or director, who shields himself from 
 liability towards his real beneficiaries, the shareholders, behind 
 the artificial protection of that purely legal entity,^ the company. 
 With a reasonable application of equitable principles, the 
 monstrous doctrine : that ' the directors of a company are not 
 trustees for individual shareholders,' would never have been 
 adopted ; and directors who are secretly negotiating a profitable 
 sale of their company's assets would not be allowed to go about 
 buying up shares with a view to profiting at the expense of their 
 own shareholders.^ The Court which decided Keech v. Sa7idford 
 would have made short work of a claim such as that. 
 
 1 The writer has no wish to fall foul of recent theories on the nature of a corpora- 
 tion. Whatever may be the position as regards the outside world, it is tolerably 
 clear that, as regards its own members, a corporation is a very artificial conception. 
 
 ^Percival v. Wright [1902] 2 Ch. 421.
 
 CHAPTER XV 
 
 CHANGES IN LAND LAW 
 
 THE structure of English land law has been compared in 
 these pages ^ with a medieval building, of which the 
 original idea has been transformed, and to which additions 
 have, from time to time, been made, with a view of adapting 
 it to modern requirements, but which, in spite of all, retains its 
 medieval outlines and many of its medieval features. The Civil 
 War, as has been hinted, made a severe breach in the medieval 
 scheme ; and, indeed, it may be said to have destroyed, not 
 merely a wing, but the very centre and omphalos of the ancient 
 fabric, the nucleus from which all the rest has sprung. So that 
 the modern student of English land law has to begin by grasping 
 a medieval principle, which (he is told) is the basis of the present 
 scheme ; only to learn, somewhat later, that the principle itself 
 has ceased to have much practical application. Is it surprising 
 that modern English land law should resemble a chaos rather 
 than a system ? 
 
 The breach effected by the Civil War is, of course, embodied 
 in the Act for the Abolition of Military Tenures, ^ passed by the 
 Abolition first Restoration Parliament in its first session. 
 Tenures But, equally of course, that statute, though it formally 
 embodied the change effected, did not of itself effect the change. 
 The military system intended to be maintained by knight-service 
 tenure had long passed away ; the mailed knight, with his 
 esquires or men-at-arms, had disappeared before the battles of 
 Crecy and Agincourt, and, with him, the last real justification of 
 military tenure. Since his disappearance, that tenure had been 
 used mainly as an engine of oppressive taxation by the Crown. 
 The Court of Augmentations,^ and the Court of Wards and 
 
 ^Ante, p. 83. = 12 Car. II. (1660) c. 24. 
 
 ^Set up by 27 Hen. VIII (1535) cc. 27 and 28; re-instituted by 7 Edw. VI 
 (1553) c. 2; abolished by 1 Mary, st. II (1553) c. 10.
 
 238 A SHORT HISTORY OF ENGLISH LAW 
 
 Liveries, ^ had been set up by the Tudor monarchs to keep the 
 system alive for financial purposes. So searching was their 
 machinery, that the great bulk of the landed gentry, who, owing 
 to the operation of Quia Emptores,^ had ceased to share in the 
 plunder of infant heirs, endeavoured, on the accession of the 
 Stuarts, to buy up the Crown's rights. But the Great Con- 
 tract of 1610 had failed, because of the greed of James; and 
 James' son, in his desperate attempt to govern without a Parlia- 
 ment, had revived the oppressions of the Tudor monarchs. 
 
 It is not, therefore, surprising to find that, during the Civil 
 War, in February 1646, the two Houses had passed a sweeping 
 Ordinance^ abolishing the oppressive feudal incidents, and even 
 the military tenures themselves, or that this Ordinance was con- 
 firmed and enlarged by a second Ordinance of the Protector 
 and his Parliament, in the autumn of 1656.^ Although the valid- 
 ity of these Ordinances could not be admitted by a Restoration 
 Parliament which dated the accession of Charles II from the 
 execution of his father, there was not the least desire, even on 
 the part of the enthusiastic royalists of the Restoration, to re- 
 vive the feudal claims of the Crown ; and, as has been said, one 
 of their first works was to pass the statute of 1660.'^ The wording 
 of that enactment is peculiar ; but its meaning is tolerably clear. 
 Not only are all military tenures swept away, and the estates 
 held by them converted into estates held by ' free and common 
 socage ' ; ^ but even the distinctively feudal incidents of the 
 last-named tenure (e.g. ' aids ') are abolished, as well as the peculiar 
 features, e.g. fines for license to alienate'^ and payments for 'ous- 
 terlemain,' which still distinguished estates held direct from the 
 Crown, or in capite, from estates held of mesne lords,^ and the 
 other prerogative claims of 'purveyance' and 'pre-emption.'^ 
 On the other hand, the purely financial items of rents, heriots, 
 and reliefs, are expressly saved ; ^" as are also the non-military 
 tenures of frankalmoign and copyhold. ^^ Finally, with charac- 
 teristic Stuart notions of justice, the loss to the Crown entailed 
 
 ' S-t up by 32 Hen. VIII. (1540) c.46; abolished by 12 Car. II (1660) c. 24, s. 3. 
 
 2 18 Edw. I. (1290) c. 1. See ante, pp. 102, 103. 
 
 ' Acts and Ordinances of the Commonwealth, I, 833. 
 
 Ubid., II., 1043. 6 12 Car. II (1660) c. 24. « Ss. 1,2. 
 
 ' For the nature of these liabilities, see ante, p. 103. 
 
 8 12 Car. II (1660) c. 24, ss. 1, 4. Ubid., ss. 12-14. ^° Ibid., 6. 6. 
 
 >' 12 Car. II (1660) c. 24, s. 7.
 
 CHANGES IN LAND LAW 239 
 
 by this statute was compensated for by an hereditary annual 
 payment, or excise, on beer, ale, spirits, and other strong liquors, 
 as well as on coffee, chocolate, sherbet, and tea.^ In other words, 
 the royalist landowners of the Restoration Parliament gaily 
 lifted the burden from their own shoulders, and laid it on those 
 of the general public. This part of the measure was entirely 
 their own ; but the origin of the reforming part of the statute is 
 placed beyond doubt by the fact, that the statute is expressly 
 made ^ to operate retrospectively from 24th February, 1646, the 
 day of the passing of the Ordinance of the Long Parliament. 
 
 Closely following upon the Act for the Abolition of Military 
 Tenures, came the Statute of Frauds,^ which, though it was not 
 The statute entirely concerned with land law, contained, as is 
 of Frauds ^yg}| known, several provisions relating to that subject. 
 As has already been pointed out,^ it imposed the requirement 
 of writing on the creation of trusts of lands, and the assignment 
 of all trusts, and made a trust estate in fee simple assets for pay- 
 ment of its owner's debts, both in his lifetime and after his de- 
 cease. But, in addition to these provisions, the statute dealt a 
 further blow at the principles of medieval conveyancing, by 
 requiring ^ the ceremony' of writing for the creation and transfer 
 of all legal estates (including estates for years) save the smallest, 
 and, in the case of devises, the additional ceremony of the pres- 
 ence of three witnesses. INIoreover, it must be observed, those 
 requirements, unlike those affecting contracts in the same stat- 
 ute, which will be hereafter referred to,*" were not evidentiary 
 only, but essential ; i.e. the statute declared that, in their absence, 
 nothing should pass but, at the most, a mere estate at will. 
 Further, the statute dealt ^ with the tricky ' estate i^ur autre vie ' 
 {i.e. an estate held for the life of a person other than the tenant) 
 by making it liable for the payment of its owner's debts, and, 
 subject thereto, giving him liberty to dispose of it by his will. 
 
 From the passing of the Statute of Frauds, in 1677, to the 
 assembling of the first Reformed Parliament in 1832, we have, 
 as has been previously pointed out,^ hardly a single statute of first- 
 class importance dealing with land law. If we except such minor 
 enactments as the Cestui Que Vie Acts,^ the Landlord and Tenant 
 
 ^lUd., ss. 15-27. '^Ibid., s. 1 (5). ^ 29 Car. II (1677) c. 3. 
 
 * Ante, p. 221. ^ gg i_^ 5 6 p^^i^ pp_ 298, 299. " S. 12. 
 
 ^Ante, pp. 207, 208. « 18 & 19 Car. II (1667) c. 6; 6 Anne (1707) c. 18 (or 72).
 
 240 A SHORT HISTORY OF ENGLISH LAW 
 
 Acts/ and the Statute of Fraudulent Devises,^ the legislative 
 history of the period is almost a blank ; for the development of 
 land law in that period, we must look to the work of the Courts 
 of Equity, of which the last chapter endeavoured to give some 
 account. But with the passing of the Reform Act, the flood-gates 
 were opened ; and the rush of waters which followed renders it 
 necessary, in order to make the picture clear, to abandon the 
 purely chronological for a partially analytical method. What 
 have been the achievements of the nineteenth century and its 
 successor in the reform of land law ? 
 
 First we may note the complete realization of a tendency 
 
 which had long been manifest, and which had, in substance, 
 
 successfullv established itself by the close of the 
 
 Complete '■ i t i i i • i •? i 
 
 Freedom of preceding period. It has been explained "* how 
 
 freedom of alienation, especially of alienation of 
 land, is abhorrent to early stages of law ; while as the social 
 organism casts its patriarchal and military sloughs, and 
 emerges into the commercial stage of development, im- 
 patience of all restraints on alienation manifests itself, and, 
 ultimately, achieves the victory. 
 
 Incidentally, the Act of 1660, which abolished Military Tenures,* 
 gave an impetus in this direction; for, the Statute of Wills in 
 1540,^ which introduced freedom of testation, so far as land was 
 concerned, expressly restricted that freedom as two thirds of the 
 landowner's knight-service estates. The abolition of knight- 
 service tenure, then, completed the work of the statute of 1540. 
 But there had always been considerable doubt whether that 
 statute applied to copyholds ; or, rather, according to the doctrine 
 of Hey don's Case,'' it was assumed that the statute, which clearly 
 derogated from the rights of lords, but did not expressly mention 
 copyholds, did not apply to the latter tenure. It is true, that, 
 by the somewhat clumsy machinery of a ' surrender to the use 
 of the will,' a custom to devise established itself, doubtless in 
 imitation of the statute, in many manors ; ' but when the necessity 
 
 M Geo. II (1730) c. 28; 11 Geo. II (1737) c. 19. 
 
 2 3 & 4 W. & M. (1691) c. 14. 
 
 3 Ante. pp. 36-38. ^ 12 Car. II, c. 24. 
 532 Hen. VIII, c. 1. ^ (1584) 3 Rep. 18. 
 
 ' There is also some trace, during that period, of Courts of Equity allowing the 
 equitable fee simple of a copyhold to be devised, even when the custom did not 
 authorize a surrender of the legal estate to the use of the tenant's will (Smith v. 
 Baker (1737) 1 Atk. 385).
 
 CHANGES IN LAND LAW 241 
 
 for this device was abolished in 1815,^ the statute aboHshing 
 it was careful to except all cases in which copyhold tenements 
 were not devisable at all by custom. The Wills Act of 1837, 
 however, completely swept away an}^ doubts existing on the 
 subject, and made all copyhold interests of a heritable nature 
 devisable ; while at the same time it authorized the devise of all 
 contingent, executory, and future interests in land, about which 
 there had also been some uncertainty.^ In fact, so sweeping are 
 the words of the Act, that a literal acceptance of them would even 
 bestow the power of devise on a tenant in tail ; ^ but it is unques- 
 tioned law, that an estate tail cannot be affected, though one 
 can be created, by devise. 
 
 There remains, in truth, only one interest in land, as to the 
 transferability of which there can be any real doubt. This is 
 Hights of the possibility or chance of recovering an estate 
 or eiture owing to the breach of a condition by the tenant. The 
 Common Law disliked all traffic in such contingencies, fearing 
 lest it should provoke ' maintenance,' or stirring-up of strife. 
 So the benefit of conditions w^as, at common law, inalien- 
 able by act of the parties.^ At the time of the Reformation, 
 this restriction was broken down, so far as conditions in leases 
 only were concerned, by the statute ^ which permitted the 
 benefit of them to be assigned with the land or the reversion. 
 The rule, however, still applied to conveyances of the inheritance, 
 and to conditions of forfeiture of the inheritance. But the Wills 
 Act of 1837 expressly extends^ the power of devise to 'all rights of 
 entry for condition broken ' ; and the Real Property Act, 1845,^ 
 contains a similar or even more sweeping provision ^ with regard 
 to alienation by deed. Nevertheless, in spite of the express words 
 of these statutes, it seems to be the better opinion, that a right of 
 forfeiture arising from the actual breach of a condition is not 
 
 ^ 55 Geo. Ill, c. 192, s. 3. (Before this time, however, some of the more pro- 
 gressive judges had suggested that a custom which made copyholds not devisable 
 would be bad, as 'unreasonable.') 
 
 ' Wills Act, 1837, s. 3. 
 
 ^ 'All real estate . . . which, if not so devised, . . . would devolve upon the 
 heir at law or customary heir' (of the testator or his ancestor). 
 
 * I.e. by act in pais. In all probability, such rights could pass by Fine, with the 
 approval of the Court. In the case of land, dealing in such rights was expressly for- 
 bidden by statute (32 Hen. VIII (1540) c. 9), which has only recently been repealed 
 (Land Transfer Act, 1897, s. 11). 
 
 5 32 Hen. VIII (1540) c. 28. « S. 3, ad fin- ^ 8 & 9 Vict. c. 106 s. 6. 
 
 * 'A right of entry, whether immediate or future, and whether vested or con- 
 tingent.'
 
 242 A SHORT HISTORY OF ENGLISH LAW 
 
 transferable.^ And a mere syes successionis is not assignable at 
 law ; though an assignment of it may be enforced in Equity, if 
 made for valuable consideration.^ But the power of assigning 
 the benefit of future breaches of conditions in a lease has been 
 rendered yet more effectual by the Law of Property Amendment 
 Act, 1859,^ which allows ' severance ' of a condition of re-entry 
 on non-payment of rent, and by the Conveyancing Act, ISSl,'* 
 which allows severance of all conditions in leases, made for the 
 benefit of the lessor. 
 
 The relief against forfeitures incurred by breach of condition 
 is, perhaps, only indirectly concerned with freedom of alienation ; 
 Relief and yet the possibility of obtaining such relief cer- 
 
 Forfefture taiuly tends to make property more freely alienable, 
 of Leases Accordingly it may be noted, that Equity had quite 
 early, as a branch of its doctrine of relief against penalties, 
 assumed the practice of restraining landlords from ejecting their 
 tenants for breach of conditions in their leases, when such breaches 
 had merely consisted in failure to make punctual payments of 
 money, e.g. rent, and had not inflicted irreparable injury on the 
 landlord. In such cases. Equity would decree restitution to 
 the tenant on payment of arrears and interest. To such an ex- 
 tent had this practice been carried, that, in the Landlord and 
 Tenant Act of 1730,^ the power of Equity to relieve, in such cases, 
 was restricted to a period of six months after the landlord had 
 recovered the premises in ejectment ; and this provision, being 
 incorporated into the Common Law Procedure Act of 1852,^ 
 is the basis of the law on the subject of relief against non-pay- 
 ment of rent at the present day. The Law of Property Amend- 
 ment Act of 1859^ allowed a Court of Equity to relieve once 
 against failure to insure ; provided that no injury by fire had 
 actually happened. But by far the most sweeping change was 
 effected by the Conveyancing Act, 1881,^ which, as amended by 
 
 1 Hunt V. Bishop (1853) 8 Exch., at p. 680 per Pollock, C. B. ; Cohen v. Tannar 
 [1900] 2 Ch. 009. The Conveyancing Act, 1911, s. 2, has made an alteration as 
 regards conditions in leases. 
 
 '^ Re Ellenhorough [1903] 1 Ch. 699. 
 
 ' 22 & 23 Vict. c. 35, s. 3. (By 'severance' is meant the dividing of the reversion 
 between two or more owners. At the Common Law, the benefit of conditions was 
 indivisible by act of the parties.) 
 
 ^ Ss. 10-12. It will be observed that the Act says nothing about severance of 
 conditions for the benefit of the lessee. 
 
 ' 4 Geo. II, c. 28, s. 2. ? 22 & 23 Vict. c. 35, ss. 4-9. 
 
 « 15 & 16 Vict. c. 76, s. 210. « 44 & 45 Vict. c. 41, s. 14.
 
 CHANGES IN LAND LAW 243 
 
 the Act of 1892/ substantially allows relief to be given against 
 breach of any condition in a lease (except one against alienation) 
 in the case of the lessee himself, and in all cases of an under- 
 lessee who has been reasonably diligent. Moreover, the Act of 
 1881^ forbids an action of ejectment for breach of a lessee's 
 condition even to be commenced before the service of a notice, 
 giving particulars of the breach complained of, and allowing 
 opportunity for reparation. 
 
 It had, however, early been observed, that the full benefits 
 of free alienation of land could not be obtained ; unless, in 
 Limited some cases at least, a landowner were able to alienate, 
 Owners j^^^ merely his own interest, but those of other persons. 
 At first this may sound to be a somewhat revolutionary doctrine ; 
 but the apparent injustice of it disappears when it is understood, 
 that all such suggestions imply the fundamental condition, that 
 in any such disposition, a 'limited owner,' i.e. an owner of 
 anything less than the interest sought to be disposed of, must act 
 honestly for the benefit of all parties concerned in that interest. 
 The matter then becomes, simply, one of safeguards. 
 
 The first step taken in the direction of entrusting powers of 
 disposition to limited owners was by a statute of the year 1540.^ 
 Tenants By that time, as we have seen,^ it had become clearly 
 in Tail established, that a tenant in tail could alienate the 
 
 estate in fee simple, by merely observing the proper formalities. 
 It was not, therefore, a very revolutionary step to provide, as the 
 statute of 1540 did, that leases for twenty-one years or three 
 lives by a tenant in tail, to take effect in immediate possession, 
 with due safeguards against waste by the lessees, and reservation 
 of at least the existing rent, should be binding on the lessor's 
 successors in the entail, notwithstanding the Statute De Bonis. 
 The real enterprise of the Act is, that it gives the same powers 
 to a husband seised of lands in right of his wife, i.e. to a person 
 whose interest was really only a life estate.^ A less compre- 
 hensive alternative provision, affecting tenants in tail only, was 
 contained in the Fines and Recoveries Act, 1833,^ of which 
 
 1 55 & 56 Vict. c. 13, ss. 2-4. - S. 14. 
 
 '32 Hen. VIII, c. 28, s. 1. * Ante, pp. 113, 114. 
 
 * Doubtless the statute uses the expression 'having an estate of inheritance. 
 But the context makes it clear, that if the wife had an estate of inheritance, the 
 husband, tenant by the curtesy, might exercise the statutory power. 
 
 « 3 & 4 Will. IV, c. 74, s. 41.
 
 244 A SHORT HISTORY OF ENGLISH LAW 
 
 some explanation will shortly be given ; but the powers of the 
 statute of Henry VIII remained legally unafl'ected, until the 
 passing of the Settled Estates Act, 1856/ to which reference 
 must now be made. 
 
 The more complicated forms of family settlement introduced 
 by the conveyancers of the Civil War, soon rendered the simple 
 provisions of the statute of 1540 inadequate. For the dangers of 
 forfeiture, and other evils of disturbed times, could not have 
 ' Family been avoided by the simple process of entailing the 
 Settlements' family estate. Not merely would the tenant in tail, 
 in a fit of enthusiastic loyalty, have been able to bar the entail, 
 and pour the purchase money into the royal coffers ; but, after 
 the establishment of the Commonwealth, he would have been 
 liable to forfeit the whole estate for engaging in correspondence 
 with the exiled Pretender.^ So it was necessary, that the head of 
 the family should be sternly restricted by settlement to a life 
 interest in the family land, followed by an estate for protection 
 of his wife's pin-money and jointure, and another for the portions 
 of younger children, before the first estate tail was limited to his 
 eldest unborn son. By this means there would, in most cases, 
 be, for at least twenty-one years after the marriage, no persons 
 able, even by united action, to make a binding lease of any of the 
 land, much less dispose of it entirely. 
 
 The latter result was, no doubt, exactly what the framers of 
 the settlement desired ; but it was a result wholly inconsistent 
 with that freedom of alienation which the Common Law courts of 
 the preceding period had striven to uphold. Nevertheless, the 
 tribunals of the Restoration period seem to have accepted it 
 with equanimity' ; doubtless relying upon the liability of the 
 ' contingent remainders ' ^ of the sons of the marriage to failure as 
 safeguarding the limitations of the settlement from the dangers 
 of a ' perpetuity.' Further than this, the Chancellors of the 
 seventeenth and eighteenth centuries, in framing the Rule against 
 Perpetuities to restrict those interests which did not come under 
 the risk of failure attaching to contingent remainders (such, for 
 
 1 19 & 20 Vict. c. 120. 
 
 ^ It was for some time an open question whether entailed estates were forfeitable 
 for troason, bfyoiid the life of the actual traitor. But the better opinion was, that 
 the risht of the Crown prevailed under 5 & G Edw. VI (1552) c. 11, s. 9. And it 
 was tolerably certain that the Long Parliament would not l)e more merciful to 
 'delinquents' or 'malignants' than the Crown officials had been to traitors. 
 
 ' Ante, pp. 85, 8G.
 
 CHANGES IN LAND LAW 245 
 
 example, as the future uses, or executory interests, now become 
 legal estates by virtue of the Statutes of Uses and Wills, and 
 limitations of personalty), actually adopted the principle of the 
 family settlement, by restricting all such limitations to a life 
 or lives in being at the date of the settlement (father and mother) 
 and twenty-one years afterwards (majority of any child). ^ 
 
 But the evils of the system, in tying up land, soon made 
 themselves felt ; and some attempt to relieve against them was 
 Express found in the practice of conferring upon the trustees 
 Powers of settlements express powers of leasing and sale, as 
 
 well as ordinary powers of management.^ Unfortunately, these 
 powers were nearly always very restrictively worded, often con- 
 fided to trustees, and generally hedged about with consents; 
 with the result, that they were only to a limited extent effective. 
 At last the legislature took up the matter, in the Leases and Sales 
 of Settled Estates Act, 1856, which gave power to the Court of 
 A t f 8 6 Chancery to authorize leases for occupation, mining, or 
 building purposes,^ and even to delegate similar power 
 to the trustees of the settlement,'* and to sell the settled estate out 
 and out ; the proceeds arising from any disposition to be settled 
 upon the same limitations as the property sold.^ But the provi- 
 sions of the Act are timid. They require for their exercise the con- 
 sent of all persons beneficially interested in the estate up to the 
 first tenant in tail of full age ; if there is no such person, then the 
 consent of- all persons beneficially interested, including trustees 
 for unborn children.*^ Apparently, they can only be exercised 
 on the petition of the first life tenant;^ and, worst of all, they 
 can be excluded from the settlement by express provision.^ Li 
 other words, the Act only operated to avoid the necessity of in- 
 serting express provisions in a settlement intended to be liberally 
 drawn ; it did nothing to override the conservatism of settlors. 
 But it is only fair to say, that one section^ (which had, however, 
 no retrospective effect) enabled a tenant for life in possession 
 (unless forbidden by the settlement) to make an ordinary lease 
 for twenty-one years, without any one's consent ; though this 
 
 ^ See the cases quoted, ante, p. 225, n. 1. 
 
 ^ See forms in Barton, Modern Precedents in Conveyancing (3d edition, 1824) pp. 
 248, 351 et seq., 462 et seq. 
 
 3 19 & 20 Vict. c. 120, s. 2. « S. 7. ^ g 23. « S. 17. ^ S. 16. 
 
 * S. 26 (even 'manifest intention' to exclude is enough). ' S. 32.
 
 246 A SHORT HISTORY OF ENGLISH LAW 
 
 power did not extend to authorize a lease of the mansion house 
 or demesne. 
 
 The Act of 1856 was followed by a series of ' Public Money 
 
 Drainage Acts,' by which limited owners were authorized, 
 
 subiect to restrictions, to pledge the inheritance of 
 
 Improve- , • , , i • i • i i 
 
 ment of their lands to repay by nistalments monies borrowed 
 
 for the purpose of effecting permanent improvements ; 
 and these spasmodic efforts culminated in the Improvement of 
 Land Act, 1864, and its various amendments, by which this 
 policy is made permanent. Broadly speaking, a limited owner in 
 possession is entitled, with the approval of the Board of Agricul- 
 ture, to borrow money for various kinds of permanent im- 
 provements,^ and secure it on the corpus of his estate bj^ a 
 terminable rent-charge extending over twenty-five years. Such 
 a rent-charge even takes priority of ordinary incumbrances of 
 earlier date." A useful provision of the later Settled Land Act 
 of 1882,^ also authorizes the improvements sanctioned by the 
 Improvement of Land Act and the Settled Land Acts to be 
 paid for out of capital arising under the latter Acts ; and similar 
 provisions are contained in one or two other modern statutes.* 
 But a ' tenant for life ' under the Settled Land Acts cannot 
 mortgage under these Acts for the purpose of effecting improve- 
 ments. 
 
 The Settled Estates Act of 1856 was superseded in 1877 by 
 another Act with a similar title and scope, which seems to have 
 
 , „ been very little improvement on its predecessor. It 
 Act of 1877 . , . ,. ^ PI • P- 
 
 IS true that it dispenses, tor the exercise or its statutory 
 
 powers, with the consent of persons subsequent to the infant 
 tenant in tail, and some other persons with very remote interests ; ^ 
 but it adopts the radical defects of the older measure in making 
 the consent of the Court essential to the exercise of the statu- 
 tory powers, and entrusting the exercise of them chiefly to 
 the trustees of the settlement — persons naturally and pro- 
 verbially disinclined to undertake responsibility. It is, in fact, 
 not easy to see how the Act of 1877, which is still in force, is 
 
 ' These will be found enumerated in s. 9 of the Improvement of Land Act, 1864, 
 and in s. 30 of the Settled Land Act, 1882. 
 
 - Improvement of Land Act, 1864, s. 63. ' S. 21 (iii). 
 
 ■• E.g. the Housing of the Working Classes Act, 1890. s. 74, and the Agricultural 
 Holdings Act, 190S, s. 20. 
 
 * Settled Estates Act, 1877, s. 25, 27.
 
 CHANGES IN LAND LAW 247 
 
 any improvement on its predecessor. But it is occasionally 
 resorted to for special purposes, e.g. when a dowress, who is 
 not a ' tenant for life ' under the Sett'ed Land Act, 1882,^ de- 
 sires to make a lease. ^ 
 
 A sweeping change was, however, brought about by the policy 
 of the Settled Land Act, 1882,^ and its various amendments. 
 The Settled The great statute is conceived on bold and successful 
 Land Acts lines. Treating all limited owners in possession as 
 virtually entitled to control, not merely the management and 
 administration of the land, but the form which the investment of 
 the settled capital shall take, the statute, and its amendments,"* 
 in effect empower any such person to sell, exchange, enfran- 
 chise, partition, lease, or effect permanent improvements in any 
 part of the settled land, by dispositions which will bind, not 
 merely the person making them, but all the interests comprised 
 in the settlement.^ ^Moreover, the exercise of these powers is in 
 the absolute discretion of the ' tenant for life ' ; except in certain 
 special cases, such as the disposal of the mansion house and 
 demesnes, or the heirlooms, or the cutting of timber. In such 
 cases, the consent of the Court or the trustees is required.^ Fur- 
 ther still, no alienation of his own personal interest is to deprive 
 the ' tenant for life ' of his statutory powers ; ^ except to the extent 
 to which it is necessary to protect a purchaser for value from him. 
 Most important of all, no expression or device in the settlement, 
 direct or indirect, can deprive the tenant for life of his statutory 
 powers, or even restrict him in the exercise of them ; ^ though, 
 needless to say, the ' tenant for life' is bound, as between him- 
 self and the other persons interested, to act in a quasi-fiduciary 
 manner, for the benefit of all parties concerned.^ Not only, 
 however, may the ' tenant for life ' convert the estate or any 
 part of it into money ; he has within the provisions of the 
 Acts, control over the re-investment of the money produced by 
 
 ^ See enumeration in s. 58 of that Act. 
 
 ^ Which she can do under s. 46 of the Act of 1877. 
 
 M5 & 46 Vict. c. 38, s. 1. 
 
 ^ Amending statutes were passed in 1884, 1887, 1889, and 1890. 
 
 = Act of 1882, s. 2 (2), s. 3. 
 
 ^ Act of 1882, ss. 35, 37 ; Act of 1890, s. 10. (The consent of the Court is essential 
 to the sale of heirlooms.) 
 
 ' Act of 1882, s. 50. » Re Richardson [1904] 2 Ch. 777. 
 
 ^Act of 1882, s. 53. This section actually invests him with the 'duties and 
 liabilities of a trustee.' But, in spite of these express words, it is doubtful whether 
 the 'tenant for life' is, technically, a 'trustee.'
 
 248 A SHORT HISTORY OF ENGLISH LAW 
 
 such a conversion/ and may employ it in effecting improve- 
 ments, paying-off incumbrances, or converting copyholds or 
 leaseholds into freeholds.- He may even mortgage for the two 
 latter purposes ^ though not for the former. But the actual 
 custody of capital monies arising under a settlement is with the 
 trustees or the Court, not with the tenant for life ;^ and the trustees 
 are bound to look after the interests of all parties concerned. 
 
 Such vigorous action has been taken under the Settled Land 
 Acts, and this action has been so beneficial, that it seems almost 
 Flaws in the ungracious to point out that time has revealed at least 
 the Acts three ways in which the policy of the Acts can be 
 substantially evaded. In the first place, it is possible for a 
 settlor to vest the immediate income of the land in trustees, with 
 a purely discretionary trust to make an allowance to the person 
 who would otherwise be tenant in possession, and even to allow 
 such person, if they think fit, to occupy the mansion house. 
 There will then be no ' tenant for life ' for the purposes of the 
 Acts ; for the trustees are not ' beneficially entitled ' to the 
 income, and the beneficiary is not ' entitled.' ^ Second, though 
 the circumstance that in fact (owing to the existence of incum- 
 brances or other causes) the first life tenant under the settlement 
 receives no income, will not prevent him exercising the statutory 
 powers ; ^ yet, a person whose interest is actually postponed during 
 the operation of a trust for accumulation, is not a ' tenant for 
 life ' under the Acts, and so cannot exercise the powers.^ Fi- 
 nally, by the device of an assignment for value, a tenant for life 
 can always, in effect, deprive himself of the right to exercise at 
 least some of his statutory powers without the consent of his 
 purchaser,^ which cannot be compelled. 
 
 A few words, but they must be few, should be said about the 
 analogous case of mortgagee and mortgagor. The persistent 
 Statutory cfforts of Equity, previously described,^ to protect 
 Powers of ^j^g interest of the mortgagor against the unfair exer- 
 
 Mortgagees •11 o f^ o 
 
 and Mort- CISC by the mortgagee of his legal powers, had m 
 gagors effect, by the end of the eighteenth century, produced 
 
 a deadlock ajmost equivalent to that of the settlement sys- 
 
 > Act of 1882, ss. 21, 22 (2). - Re Bruce [1905] 2 Ch. 372. 
 
 ' Act of 1882, s. 18; Act of 1890, s. 11. " Act of 1882, s. 22. 
 
 ^ Jemmett's and Guest's Contract [1907] 1 Ch. 629. * Re Pollock [1906] 1 Ch. 146. 
 
 ' Re Strangways (1886) 34 Ch. D. 423 {Non obstante Re Llewellyn [911] 1 Ch. 451). 
 
 » Act of 1882, 8. 50 (3). (But see Act of 1890, s. 4.) » Ante, pp. 215, 216.
 
 CHANGES IN LAND LAW 249 
 
 tern. No third party could safely deal with the mortgagee ; 
 because such dealing might be set aside by Equity after re- 
 demption. The mortgagor, of course, had no legal powers ; his 
 alienees could be treated by the mortgagee as mere tenants at 
 will. Unless mortgagee and mortgagor could agree (which 
 was but seldom) nothing could be done. The property was 
 under a curse. 
 
 It is true, that many mortgagees endeavoured to get over 
 the difficulty by reserving in the mortgage deeds express powers 
 of sale, leasing, and management, exerciseable without the mort- 
 gagor's consent ; but there was always the fear lest Chancery 
 should quash these powers as oppressive, or as attempts to ' clog 
 the equity.' It was a case for the legislature ; and at last the 
 legislature intervened, and by the Law of Property Amendment 
 Act of 1860 (commonly known as Lord Cran worth's Act)^ 
 conferred upon every mortgagee, after default in payment of 
 principal or interest, the power to sell the mortgaged land and 
 pay himself out of the proceeds, and to insure any insurable 
 property, and to appoint a receiver of the rents and profits. 
 But these powers did not include any power to lease ; and they 
 could all be excluded by the express terms of the mortgage.^ 
 
 More drastic was the policy of the Conveyancing Act, 1881, 
 which not only re-enacted the powers of sale, insurance, and 
 appointing a receiver,^ but conferred upon either mortgagee 
 or mortgagor, when in possession, power to make binding leases,* 
 substantially of the same nature as those subsequently authorized 
 by the Settled Land Act for the tenant for life, and also conferred 
 upon the mortagor the valuable rights of demanding, on re- 
 demption of the mortgage, a transfer thereof instead of a re- 
 conveyance,^ and, even before redemption, of inspecting and 
 taking copies of the title-deeds.^ It also entitles a mortgagee in 
 possession to cut ordinary timber (of course subject to account), 
 and even to make a binding twelve-months' contract for such 
 cutting.^ It is noteworthy that, while the powers of the mortgagee 
 may be waived by express provision in the mortgage,^ those in- 
 serted for the special benefit of the mortgagor cannot be restricted.^ 
 It is noteworthy also that, by empowering the Court to order 
 
 1 23 & 24 Vict. c. 145, ss. 11-24. - S. 32. ^ Act of 1881, s. 19. 
 
 ^ S. 18. (But there is no provision for anything in the way of a mining lease.) 
 ^ S. 15. (This power cannot be exercised if the mortgagee has been in possession.) 
 «S. 16. 'S. 16 (iv). ^Ihid., (3). ^ Ss. 15 (3), 16 (2.)
 
 250 A SHORT HISTORY OF ENGLISH LAW 
 
 a sale, instead of a foreclosure or reconveyance, in any action for 
 foreclosure or redemption,^ and by providing that all mortgage 
 estates, even though of a freehold nature, shall pass to the mort- 
 gagee's personal representatives on his death," the Act alleviated 
 many of the difficulties and hardships formerly attendant upon 
 the realization of mortgages. 
 
 In one other direction the same tendency towards freedom of 
 alienation may be observed; though, again perhaps, working 
 Liability of indirectly. As has been previously pointed out,^ 
 satisfy" feudal principles were opposed to making land liable 
 
 Debts iq seizure for the debts of its owner. True that one 
 
 of the great thirteenth century statutes^ had allowed the judg- 
 ment creditor to ' extend ' one half his debtor's lands, in lieu of 
 taking his body and goods, and that the specialty debts of a 
 deceased landowner were enforceable against his heirs. Early 
 in the present period, also, as we have seen, trust estates of 
 inheritance were added to the list of ' real assets,' and the remedy 
 of specialty creditors was extended from heirs to devisees.^ 
 But it was not until 1807 ^ that simple contract creditors, and then 
 only when the debtor was a trader, were entitled to be paid out 
 of the land of a deceased debtor. In 1833, however,^ this liability 
 was extended to the lands (including copyholds) of all debtors; 
 and in 1838,* all the lands of a living debtor (also including 
 copyholds) were made available to satisfy the claims of his 
 judgment creditors. Improved remedies were added in 1864^ 
 for the purpose of giving effect to these claims ; and a statute of 
 1869,^° commonly known as ' Hinde Palmer's Act,' by abolishing 
 the priority of specialty debts, greatly simplified the distribution 
 of the assets of a deceased person among# his creditors. Finally, 
 the earlier sections of the Land Transfer Act, 1897,^^ by vesting the 
 real estate of a deceased person (other than legal copyholds) 
 in his personal representatives, the ordinary distributors of his 
 property, greatly facilitated the machinery for obtaining pay- 
 ment of debts out of such property. 
 
 » S. 25. 2 s 30. 3 ^nle, pp. 36, 37. 
 
 * Statute of Westminster II (13 Edw. I, 1285) c. 18. 
 
 ^ Ante, pp.220. 221. M7 Geo. Ill, st. II, c. 74. 
 
 » Administration of Estates Act (3 & 4 Will. IV, c. 104). 
 
 « Judgments Act (1 & 2 Vict. c. 110, s. 11). 
 
 'Judgments Act (27 & 28 Vict. c. 112, ss. 4-6). 
 '"Administration of Estates Act (32 & 33 Vict. c. 46). 
 " 60 & 61 Vict. c. 65 sa. 1-4.
 
 CHANGES IN LAND LAW 251 
 
 The Act to Amend the Law of Inheritance, passed in the year 
 1833/ though it cannot be overlooked entirely, in any work 
 Rules of professing to deal with the history of English law, 
 Inheritance -g j^g^j-jiy g, matter of first-rate importance. Owing to 
 the fact that a landowner rarely dies without leaving a will, its 
 provisions are but seldom resorted to. Moreover, unlike the 
 Wills Act of four years later, it is not a code, but merely, as its 
 title implies, a statute designed to remedy certain defects in the 
 Common Law. That law had, as we have seen,^ become fixed 
 in outline by the end of the thirteenth century. But in one 
 important respect the later Common Law had departed from 
 fundamental principles. By those principles, no one could inherit 
 a fief unless he was descended from, or at least of the blood of, the 
 first acquirer, or ' purchaser ' of the fief. But the great 
 importance attached by medieval law to 'seisin,' or corporal 
 possession of the land, had virtually substituted the ' person last 
 seised ' for the original donee of the fief, except in the case of 
 estates tail ; though the rule that the heir must be ' of the blood ' 
 of the first purchaser was in theory preserved.^ The Act of 1833 
 restored the ancient rule ; dispensing with the requirement of 
 seisin in the stock of descent, and making descent in every case 
 traceable from the last purchaser,^ i.e. the person who last 
 acquired the estate otherwise than by inheritance. Further, the 
 Act made a substantial change^ by admitting, next after the 
 issue of the purchaser, his nearest ancestor to succeed, and collat- 
 erals only through ancestors, and by allowing the claim of the 
 half-blood collaterals to prevail, next after the claims of collaterals 
 of the whole blood of the same degree, and their issue. ^ The pref- 
 erences given by the common law to males over females and to an 
 elder male over a younger in the same degree, were not, however, 
 altered ; and the peculiar local customs of copyhold and gavelkind 
 were, save as to the rule of descent from the purchaser, also left 
 untouched. 
 
 Far more important, really, in the law of succession than the 
 Inheritance Act, has been the series of short statutes known as 
 ' Locke King's Acts,' ^ designed to mitigate the preference given 
 
 1 3 & 4 Will. IV, c. 106. 2 Ante, pp. 34-36. ^ Blackstone, Comm., II, 221. 
 
 * Inheritance Act, 1833, s. 2. (An amendment of 1859 admitted the heirs of the 
 person last entitled, (not, necessarily, 'seized'), after failure of the heirs of the 
 purchaser.) ^ Ss. 5, 6. ® S. 9. 
 
 'Officially styled the 'Real Estates Charges Acts, 1854, 1867, and 1877.'
 
 252 A SHORT HISTORY OF ENGLISH LAW 
 
 both by Law and Equity to beneficiaries interested in land over 
 Locke King's tliose having claims only on personalty. By the 
 Acts older law, if a testator had mortgaged his freehold 
 
 estate, and then died, leaving a will under which his real estate 
 went to A and his personalty to B, A would have been entitled 
 to demand that the mortgage debt should be paid off out of 
 the testator's personalty, for the purpose of clearing the real 
 estate ; and a similar principle applied if the owner of the estate 
 had died intestate, leaving A as his heir and B as his next-of-kin. 
 If the testator or intestate had, in fact, used the mortgage 
 money to pay his general debts, there was little hardship in this 
 rule.^ But if, as commonly happened, the mortgage money had 
 been actually borrowed to enable the deceased to purchase the 
 real estate, the hardship was obvious. Accordingly, in 1854, it 
 was enacted,^ that in such a case, neither devisee nor heir should 
 be entitled to claim payment out of the personal estate ; but 
 that, as between the different beneficiaries, each estate should 
 bear its own burdens. And, by later statutes,^ the new rule 
 has been extended to liens for unpaid purchase-money and to 
 leasehold interests. It does not, however, apply to pure person- 
 alty ; a specific legatee of which is still entitled to have any in- 
 cumbrance cleared out of the general personal estate.* Of 
 course both old and new rules are subject to any expression of 
 intention by the deceased, contained in his will or other docu- 
 ment ; but a mere general direction for payment of debts out 
 of personal estate is not such an expression.^ Finally, it may be 
 mentioned that the old rule of preference for the beneficiaries 
 of the real estate never applied where that estate was already 
 mortgaged before it was acquired by the deceased (' mortgage 
 ancestral ').^ Needless to say, Locke King's Acts in no way affect 
 the right of a mortgagee to resort to his mortgagor's personal 
 estate, either before or after exhausting his security. The matter 
 is put right between the beneficiaries by the process of * mar- 
 shalling,' previously described.^ 
 
 ' Except that, in case of an intestacy, the result might be to favour a very distant 
 heir at the expense of much nearer next-of-kin. 
 
 2 17 & 18 Vict. c. 113. 
 
 3.30 & 31 Vict. (1867) c. 69; 40 & 41 Vict. (1877) c. 34. 
 
 * Bolhamley v. Sherson (1875) L. R. 20 Eq. 304. 
 
 '.30 & 31 Vict. c. 69, s. 1. 
 
 « Evelyn v. Evelyn (1728) 2 P. Wms. 659 (Lord King) ; Parsons v. Freeman 
 (1751) .\mbl. 115 (Lord Hardwicke). ^ Ante, pp. 230, 231,
 
 CHANGES IN LAND LAW 253 
 
 Attention should also be given to the extremely important 
 Real Property Act of 1845/ which, though its efforts were 
 Contingent mainly directed to sweeping away the technicalities 
 Remainders Qf medieval conveyancing, also made one important 
 change in substantive law. A statute of the preceding 
 year ^ had endeavoured to abolish altogether contingent re- 
 mainders ; but this somewhat extreme step was recalled in 
 1845, and a provision enacted which prevented the ' failure ' 
 or destruction of the interests of remaindermen by collusion of 
 other parties to the settlement. Owing to the rule, previously 
 alluded to,^ that if a contingent remainder was not ready to take 
 effect in possession on the expiry of the preceding estate, it 
 ' failed,' or disappeared entirely, it was possible for the tenant for 
 life under a settlement, prior to the birth or conception of the 
 first remainderman in tail, by procuring a forfeiture of his 
 estate, or a surrender of it to the next vested remainderman, to 
 destroy his (the tenant for life's) estate, and thus, with it, the 
 contingent remainders dependent upon it. This practice, which 
 was the more reprehensible that the persons for whom the contin- 
 gent remainders were intended were usually the tenant for 
 life's own children, was largely resorted to ; and the only way by 
 which it could be prevented was by the rather clumsy device of 
 appointing ' trustees to preserve contingent remainders,' i.e. to 
 hold for the residue of the natural life of the tenant in possession. ^ 
 But the Act of 1845^ rendered this device unnecessary, by provid- 
 ing that the contingent remainder should be capable of taking 
 effect in due course ; notwithstanding such prior artificial 
 destruction of the preceding estate. The year 1877 ^ saw an ex- 
 tension of this policy, in the Act which rendered contingent 
 remainders indestructible, notwithstanding the natural expiry of 
 the preceding estate ; provided that they did not violate the Rule 
 against Perpetuities.^ This provision, which is, however, only 
 applicable to settlements made after the passing of the Act, 
 virtually assimilated Common Law remainders to the newer 
 executory interests limited by way of use, and operating under 
 the Statute of Uses.^ 
 
 » 8 & 9 Vict. c. 106. 2 7^8 Vict. c. 76. » Ante, p. 85. 
 
 ^Mansell v. Mansell (1732) 2 P. Wms. 678. ^ S. 8. 
 
 ^Contingent Remainders Act (40 & 41 Vict. c. 33). ''Ante, pp. 244, 245. 
 8 27 Hen. VIII (1535) c. 10.
 
 254 A SHORT HISTORY OF ENGLISH LAW 
 
 But a few words must also be said about the changes in the 
 methods of con\cyancing introduced during this period. 
 
 One of the early efforts of the reformed Parliament was directed 
 towards doing away with the necessity for resorting to the 
 Abolition of cumbrous Conveyances known as Fines and Recoveries. 
 
 Fines and t i i ' • i i • i i i • i • 
 
 Recoveries it has been previously explained how, m early times, 
 these costly fictions performed the useful task of covering the 
 introduction of reforms which could not be openly effected. But 
 these times were long past ; and now Fines and Recoveries were 
 merel}^ means of exacting fees from persons dealing in land. 
 In the year 1833, accordingly, they were entirely superseded by 
 simple conveyances enrolled in Chancery ; ^ the additional 
 ceremony of examination by the Court or independent com- 
 missioners being imposed in the case of married women who were 
 disposed to alienate their lands. 
 
 It will be remembered that,^ soon after the passing of the 
 Statute of Uses, the ingenuity of conveyancers had at last 
 overcome the medieval principle that freehold estates 
 veyances °' ^^^ possession could only be created or transferred by liv- 
 ery of corporal seisin, or ' feofi'ment.' The common law 
 principle had never been applied to equitable interests, which were 
 merely subject to the formality of writing, prescribed by the Statute 
 of Frauds.^ But, until nearly the middle of the nineteenth century, 
 the common law rule prevailed, in theory, for legal estates ; and 
 was only evaded by the clumsy device of the Lease and Release.^ 
 In 1845, however, the Real Property Act,^ by providing that 
 ' all corporeal tenements and hereditaments shall, as regards the 
 conveyance of the immediate freehold thereof, be deemed to lie 
 in grant as well as in livery,' virtually made a simple deed of 
 grant effectual to convey any interest in land inter vivos, and 
 thus at last formally recognize the validity of secret conveyances 
 of corporeal hereditaments. Furthermore, the statute made a 
 complete destruction of the medieval theory, by providing, not 
 merely that a deed should be effective for all purposes without 
 a livery, but by enacting,^ that livery without a deed or writing 
 should not be effective at all ; and by abolishing all those peculiar 
 
 ^ Ante, pp. 112-118. 
 
 2 Finos and Itocoveries Act (3 & 4 Will. IV, c. 74). ' Ante, pp. 121, 122. 
 
 * 29 Car. II (1677) c. 3, ss. 7-9. ^ Ante, pp. 121, 122. 
 
 * S. 2. The amondinont had, in substance, been made by an Act of the previous 
 year (7 & 8 Vict. c. 76, s. 2). ' S. 3.
 
 CHx\NGES IN LAND LAW 255 
 
 virtues of a feoffment which depended upon its ' tortious ' opera- 
 tion.^ Naturally the medieval feoffment, now a mere superfluous 
 luxury, has disappeared from modern conveyancing ; save in 
 those rare cases in which a person, though incapable of making a 
 binding deed, is, by local custom, able to convey by feoft'ment.^ 
 The statute further emphasizes the importance of deeds, in modern 
 conveyancing, by enacting ^ that all transfers required by the 
 Statute of Frauds to be in writing must be made by deed, in 
 order to pass the legal estate. This provision, however, does not 
 affect the passing of equitable interests, nor the conveyance of 
 copyholds by surrender and admittance.'* A little noticed, but 
 really important section of the statute,^ to which effect has 
 recently been given by a decision of the House of Lords,^ abolished 
 the former technical rule that a man could not acquire an im- 
 mediate interest, or take the benefit of a covenant or condition, 
 under an indenture to which he was not a party. 
 
 The scope of this work does not permit of reference in detail 
 to the important provisons of the Vendor and Purchaser Act, 
 1874,^ and the Conveyancing Act, 1881,^ which aim at reducing 
 the expense of conveyancing by limiting the rights of a purchaser 
 under an open contract in the matter of demanding evidence of 
 the vendor's title, and at diminishing the risk of mistakes, by 
 shortening the forms of deeds and allowing alternatives in the use 
 of technical words to pass heritable estates.^ Space remains 
 only for a very brief sketch of the history of the attempts made 
 to realize that cherished dream of law-reformers, which, as we 
 have seen,^° haunted the minds even of the members of the 
 Little Parliament, viz. the registration, in a public and accessible 
 form, of all dealings with land. 
 
 With the exception of the experiment tried at the passing, 
 in 1663, of the Act for regulating the affairs of the great ' Bedford 
 Level ' of the eastern fen country,^^ then recently reclaimed, 
 
 ^ S. 4. Certain other changes of minor importance were made by this section. 
 (As to the 'tortious operation' of a feoffment, see ante, pp. 107-109.) 
 
 ^ E.g. an infant holding land subject to the custom of gavelkind. But the only 
 case of recent years reported on this point shows the danger of relying on such a 
 feoffment {Maskell's and Goldfinch's Contract [1895] 2 Ch. 525). 
 
 3 S. 3. " Ibid. 6 s. 5. 
 
 ^ Dyson v. Forster [1909] A.C. 98. ^ 37 & 35 Vict. c. 78, ss. 1, 2. 
 
 844 & 45 Vict. c. 41, ss. 3-9, 51, &c. 
 
 » Conveyancing Act, 1881, ss. 6-9, and 51. The case of Re Ethel, &c. [1901] 
 1 Ch. 945, shows, however, that the new words of inheritance are just as technical as 
 the old. 10 Ante, pp. 178-182. " 15 Car. II, c. xvii.
 
 256 A SHORT HISTORY OF ENGLISH LAW 
 
 after many unsuccessful attempts, by the Earl of Bedford, 
 it was not until the beginning of the eighteenth century that any 
 definite step was taken to carry out the suggestions of the Little 
 Parliament. In the first decade of that century, however, 
 Land Reg- ^lie West and East Ridings of Yorkshire, and the 
 istration Couutv of Middlesex, as the result of genuine popular 
 movements, adopted schemes of registration; and the North 
 Riding of Yorkshire followed suit in 1735.^ But the reader should 
 be cautioned against assuming that the Yorkshire and INIiddlesex 
 schemes are of the same character as the Torrens system of the 
 British colonies, or the English experiments of the latter half 
 of the nineteenth century. The Yorkshire and INIiddlesex 
 schemes aimed only at the registration of documents ; i.e. they 
 were simply directed against the evils arising from the existence 
 of concealed conveyances. All that they did was to protect a 
 purchaser from being deprived of his purchase through the effect 
 of some secret document, of the existence of which he was unaware 
 when he paid his money. They did not pretend to guarantee the 
 positive validity of the title on the faith of which he bought. 
 Thus, to take a very simple example, if B professed, as devisee of 
 A, to sell land in Yorkshire to X, and X duly searched the registry 
 of the appropriate Riding and found everything apparently in 
 order, he would be protected against a claim by a previous pur- 
 chaser from B, who had not registered his conveyance. But 
 he would lose his land if A's alleged will turned out to be a forged 
 document, or if B, the supposed devisee under it, were not really 
 the devisee, but a person passing himself off as the devisee. 
 Still less would he be protected, if A's title (for any cause other 
 than a concealed document) was defective. Thus, though the 
 protection afforded by the acts was considerable, it was not 
 sufficient to arouse enthusiasm ; and, in fact, no serious steps 
 were taken to extend it, X>t any other system of registration, to 
 the rest of England, until the middle of the nineteenth century. 
 ^Moreover, it was held that, notwithstanding the unqualified 
 words of the old Middlesex Registry Act, the City of London 
 (which, so far as the value of land is concerned, is probably equal 
 
 ■ The statutes are, 2 & 3 Anne (1703) c. 4 (West Riding), 6 Anne (1707) c. 35 
 (East Riding), 7 Anne (1708) c. 20 (Middlesex), 8 Geo, II (1735) c. 6 (North 
 Riding). These have been superseded by the Yorkshire Registries Act, 1884, and 
 the Middlesex Registry Act, 1891, in their respective spheres.
 
 CHANGES IN LAND LAW 257 
 
 to the whole of the rest of the county) was excluded from the 
 provisions of the Act. 
 
 But, soon after the middle of the nineteenth century, the wave 
 of legislative reform, which, as we have seen, had been busy 
 , . on questions of land law, reached the subject of regis- 
 
 Westbury's tration of title ; and two statutes, generally associated 
 with the name of Lord Westbury, were passed in 1862 to 
 deal with it. By the former of these, the Land Registry Act, 1862,^ 
 provision was made for the establishment of a Registry, appli- 
 cable to the whole kingdom, which should not merely profess to 
 give a purchaser notice of documents affecting his title, but 
 should actually provide a State guarantee of the validity of all 
 titles appearing on the register. Naturally, however, the State 
 declined to assume this very serious liability in the case of any 
 title which had not been carefully investigated, before registra- 
 tion, by its own officials ; and, as this process involved consider- 
 able expense, and might have the very serious result to the land- 
 owner of advertising the defects of his title, it is not surprising, 
 perhaps, that few landowners consented to submit to it. As a 
 matter of fact, there were, in the 'sixties, probably very few 
 important estates in England the titles to which were technically 
 perfect ; and so notorious was this fact,- that the average pur- 
 chaser and his legal advisers allowed their rights of investigation 
 to be cut down in their contracts of purchase, and, unless they 
 wished to be off their bargain, deliberately shut their eyes 
 to remote contingencies. Landowners were, in a vague way, 
 aware of this ; and, not unnaturally, refused to incur the expense 
 and risk of a scientific investigation of their titles, for the prob- 
 lematic advantage of obtaining a slightly higher price when they 
 desired to sell. A little use was made of the Act in the earlier 
 years of its existence ; but very soon the Registry Act itself, 
 as well as the Declaration of Title Act passed in the same year,^ 
 became a dead letter. 
 
 In the year 1875, however, the matter was again taken up 
 Lord by Lord Cairns ; and the Land Transfer Act of 
 
 Cairns' Act i\i{it year came into existence. In some ways it 
 was a great improvement upon its predecessor. It no longer, 
 
 ' 25 & 26 Vict. c. 53. (The Act is still in force for the few titles remaining 
 registered under it.) 
 
 2 See the remarks of Lord Hatherley on this point, and the rule with regard to 
 damages for breach of a contract to sell land deduced therefrom, in Bain v. Fothergill 
 (1S74) L.R. 7 H.L. 158. 3 25 & 26 Vict. c. 67.
 
 -258 A SHORT HISTORY OF ENGLISH LAW 
 
 required all applicants for registration to submit to the costly 
 and embarrassing enquiry necessary to establish an ' absolute * 
 title. It allowed any applicant to register with a ' possessory ' 
 title only, i.e. a title which merely asserted that the registered 
 proprietor was in fact in possession of the land on the day of 
 registration, under Si t\t\e i^rimd facie vdXid.^ Naturally, in such 
 cases, the State took no reponsibility in respect of the past 
 history of the title ; but it did guarantee to a purchaser that, 
 in respect of subsequent transactions, the title appearing on the 
 Register should be unimpeachable.^ Thus, as time went on, 
 even a merely ' possessory ' title would acquire a tolerable secur- 
 ity ; for the operation of the Statutes of Limitation would 
 gradually eliminate the possibility, or at least the probability, 
 of any claims arising prior to registration being really enforced. 
 Moreover, even if the applicant for registration with ' absolute ' 
 title could not show a theoretically perfect title, it was made 
 possible for the Registry to accept his title as ' qualified,' i.e. 
 subject only to one or more specified blots, as to the importance 
 of which a purchaser could judge for himself.^ 
 
 In other respects, however, the Act of 1875 was as unsatis- 
 factory as its predecessor. It left it optional with the existing 
 owner or future purchaser of land to register or not, as he pleased ; 
 and, though a few landowners were attracted by the more 
 elastic provisions of the statute, yet, after the first few years of 
 existence, very little use was made of it. Moreover, the scheme 
 suffered from one great blot, in that it made no effort to com- 
 pensate innocent sufferers who might, by reason of abuse of the 
 register, or inaccuracies or omissions in or from it, incur loss. 
 It might, perhaps, have been thought that this defect would not 
 have weighed much with persons acute enough to secure the 
 protection of the Act for doubtful titles ; but in fact it tended to 
 make the scheme unpopular. 
 
 Accordingly, registration of title once more languished ; 
 until a vigorous reform of the scheme of 1875 was set on foot 
 and carried out, mainly through the efforts of Lord Halsbury, 
 the third Conservative Lord Chancellor to champion the system. 
 
 By Lord Halsbury's Land Transfer Act of 1897, or rather 
 by the Rules made under the almost unprecedented power con- 
 
 « Act of 1875, s. 6, and Land Transfer Rule, 1908, Part II. 
 2 Act of 1875, s. 8. 3 Ibid., s. 9.
 
 CHANGES IN LAND LAW 259 
 
 ferred upon the Lord Chancellor and his advisers by the 
 provisions of the two statutes/ yet a fourth kind of 
 Haisbury's title may now be registered, viz. a * good leasehold ' 
 title.- A ' good leasehold ' title is, in effect, an absolute 
 title to the interest professed to have been created by a lease, if 
 and so far as that interest was validly created. In other words,, 
 such a title only guarantees the purchaser of a registered lease 
 against defects in the title to the lease itself, not against defects in 
 the title of the lessor.^ The Act of 1897 also provides "* a fund for 
 compensating persons who may have suffered from any omission 
 or error in the register, or from the procurement of any registra- 
 tion by fraud or mistake ; and, if the only reported decision ** 
 on that section is not very favourable to such claimants, still the 
 compensation provisions of the Act are manifestly necessary to 
 prevent injustice. 
 
 But by far the most radical change effected by the Act of 
 1897, so far as registration of title is concerned, is contained 
 in the section^ which provides for compulsory registration. 
 Compulsory Tliis change, however, which takes the form of enacting 
 Registration ^}^g^^^ qj^ ^]^g occasion of any future transfer by way of 
 sale, the title to the land shall be registered, only affects certain 
 special areas ; and the provisions on this point are remarkable. 
 The Act itself does not create any ' compulsory area ' ; but gives 
 the Crown, by Order in Council, power to do so, under certain 
 conditions. In the first instance, the power of the Crown was 
 limited only by the fact, that the provisions of the first Order 
 to be made should not include more than one administrative 
 county, and by the fact that the County Council of the area 
 proposed to be aft'ected might, by a majority of at least two- 
 thirds of its members, veto its coming into operation. After 
 the making of the first Order under the Act, however, no further 
 Order was to be made for at least three years after the date 
 of the first Order, and, even then, not until the County Council 
 of the area contemplated should express a wish for the intro- 
 duction of the compulsory system. No such wish has been 
 expressed by any County Council ; and, therefore, outside the 
 County of London, which has been prescribed as a compulsory 
 
 1 Act of 1875, s. Ill ; Act of 1897, s. 22. 
 
 2 Land Transfer Rules, 1903, No. 52. 
 
 3 76wi.., No. 56. 6 a. G. v. Odell [1906] 2 Ch. 47. 
 
 ^Ss. 7, 21. 6S. 20.
 
 260 A SHORT HISTORY OF ENGLISH LAW 
 
 area by Orders dated between 1897 and 1903/ registration of 
 title is still purely voluntary, and is, in fact, seldom resorted to. 
 
 It sliould be mentioned, of course, that the avowed objects 
 of the Land Transfer Acts include, not merely the guarantee or 
 security of titles, but the diminution of the expense and com- 
 plexity of conveyancing, and the improvement of the remedies 
 of creditors. \Yith the former object in view, the Acts pro- 
 vide that no ' abstract of title,' other than the land certificate 
 and liberty to inspect the register, can be demanded by a pur- 
 chaser in respect of title guaranteed by the State ; - with an 
 eye to the latter, the Act of 1897, by vesting all the heritable 
 freeholds of a deceased person in his personal representatives,^ 
 and causing all dealings between them and the beneficiaries, 
 so far as relates to registered land, to be entered in the register, 
 aims at providing simple and speedy remedies for the recovery of 
 their claims by creditors. 
 
 It is notorious that the policy of land registration has given 
 rise to acute differences of opinion in England, and that the 
 system is still on its trial. On the one hand, it is said that the 
 slight increased security afforded by the State guarantee is more 
 than outweighed by the limited operation of the scheme, and 
 by the fact that, as the beneficial interest in registered land, even 
 in ' compulsory areas,' can be conveyed by unregistered instru- 
 ments,'' the Acts have practically substituted a double for the 
 previous single title to each ownership within those areas. On 
 the other, it is urged, that there is a systematic conspiracy of 
 interests to stifle and misrepresent the scheme, and to throw 
 difficulties in the way of its execution, and that, as ' possessory ' 
 titles virtually become, by lapse of time, absolute, and it becomes 
 possible to relax the severity of the conditions of registration with 
 ' absolute ' title, the drawbacks inevitably attendant upon the 
 introduction of a new scheme of conveyancing will disappear. 
 The sul)ject has recently been under the consideration of a Royal 
 Commission, whose report was published only in 1911 ;^ and the 
 
 » The first Order (18th July, 1908) covered the whole County of London; but 
 made the Order applicable to different pdrts at different dates. These dates were 
 subser4uently altered. 
 
 'Act of 1897, 8. 16. 'Act of 1897, ss. 1-4. 
 
 * The only legal penalty for non-registration in a compulsory area is that the 
 legal estate does not pass (Act of 1897, s. 20 (1)). As to the effect of unregistered 
 dealings with registered land, see Capital and Counties Bank v. Rhodes [1903] 
 1 Ch. 631. 6 P.P. 1911, Cd. 5483.
 
 CHANGES IN LAND LAW 261 
 
 author must, therefore, leave the question, with the bare histori- 
 cal observation that, but for the passing of the Statute of Uses, it 
 would have been comparatively easy, at any time in the sixteenth 
 or seventeenth centuries, to substitute for the somewhat com- 
 plicated scheme of registration of title, a much simpler, but 
 sufficiently effective scheme of a Register of Sasines, or seisins, 
 i.e. a bare register of the changes of the legal estate. It may be 
 that the solution of the problem will be found in that direction, as 
 it has been in Scotland. 
 
 In dismissing the subject of registration, a mere reference is 
 all that can be allowed for that branch of it which relates to 
 
 Registration -^j^e registration of certain adverse claims, such as 
 
 of Hostile . ° . . . ' 
 
 Claims judgments, recognizances, annuities or rent-charges, 
 
 deeds of arrangement with creditors, and other possible flaws 
 in title. These registries are, of course, on the lines of the old 
 Yorkshire and Middlesex Registries, with which they are, in 
 fact, incorporated in those counties. They merely aim at warn- 
 ing the purchaser of dangers, without in any way guaranteeing 
 their extent or probability. The practice commenced with the 
 Statute of Frauds, in 1677,^ and was embodied in numerous 
 statutes of the next two centuries.^ It is now governed by the 
 Land Registration and Searches Act, 1888,^ and the Land Charges 
 Act, 1900 ; ^ the chief recent change being the provision^ that no 
 judgment can in the future be registered without leave of the 
 Court, or have any effect as regards the land of the debtor, until 
 a writ of execution upon it has been delivered or put in force, 
 and duly registered. This provision has, perhaps inadvertently, 
 reopened a serious question. By the common law, a personal 
 representative was deemed to have notice of all unsatisfied 
 judgments obtained against his deceased; and if he paid lower 
 claims without making provision for them, he did so at his own 
 peril. It was to remedy this danger, among others, that the 
 statutory provisions for the registration of judgments were in- 
 troduced. Now that judgments can no longer be registered 
 without special leave, will the judgment creditor's preference 
 still remain ? And, if it does, how is the personal representative 
 to protect himself? 
 
 1 29 Car. II, c. 3, s. 18. 
 
 2 E.g. 4 & 5 W. & M. (1692) c. 20 ; Judgments Act, 1838, s. 19 ; Judgments Act 
 1864, ss. 1-3. 
 
 ' 51 & 52 Vict. c. 51, ss. 5, 6. ^ 63 & 64 Vict. c. 26. ^ Ibid., s. 2.
 
 262 A SHORT HISTORY OF ENGLISH LAW 
 
 This chapter cannot conclude without at least a brief reference 
 to one of the most important reforms in land law effected during 
 Enclosures the latter half of the nineteenth century, viz. the 
 restriction of the right to enclose common fields and manorial 
 wastes. In form this was a change in procedure ; in substance 
 it effected a profound revolution in the powers of landowners. 
 
 It has been pointed out, in an earlier chapter,^ that the typical 
 manor of the later Middle Ages was formed by the super-position 
 of a ' lord ' holding by feudal tenure upon a village which culti- 
 vated its lands under a communal system of immemorial an- 
 tiquity. To this communal system the feudal principle of tenure 
 was also applied, though with indifferent success, by the Norman 
 lawyers; so that, in theory, the villagers, whose names and 
 holdings were recorded on the manorial rolls, were technically 
 described as ' holding of ' the lord, though ' according to the 
 custom of the manor.' 
 
 It was natural that, as population increased, and tenants became 
 more plentiful, the manorial lords should desire the power of 
 taking in more land from the waste which was a normal feature of 
 every village ; and equally natural that the villagers, who had, 
 from time immemorial, treated the waste as a treasure-house from 
 which valuable stores of grass, faggots, acorns, gravel, peat, 
 water, and the like, could be drawn to supplement their holdings, 
 should resent any claim which threatened to trench upon their 
 store. Traces of the struggle are visible as early as the thirteenth 
 Statute of century ; when, by the Statute of IVIerton," * magnates ' 
 Merton -^-j^q \^q^^ ' enfeoffed their knights and freeholders of 
 
 small tenements in their great manors' were exonerated from 
 actions brought by such tenants against them (the magnates) 
 for ' making their profit of the residue of their manors, to wit 
 of wastes, woods, and pastures ' ; i)rovided that the complain- 
 ants were left ' so much pasture as should suffice for their tene- 
 ments.' 
 
 This provision, which was extended by the Statute of West- 
 minster the Second ^ to cover the case of persons claiming common 
 of pasture by express grant, seems to have been the foundation 
 of the common law rule, that, in the absence of proof to the con- 
 trary, the soil of the manorial waste, or ' common,' is vested in 
 the lord. The immense importance of this rule will appear later ; 
 
 ' ArUe, pp. 27, 28. * 20 Hen. Ill (1235) c. 4. » 13 Edw. I (1285) c. 46.
 
 CHANGES IN LAND LAW 263 
 
 here it is sufficient to point out that there is nothing in the words 
 of the statutes to justify it, and that nothing is said in either 
 statute about the rights of copyholders, which depend, and have 
 all along depended, not on feoffment or grant, but on immemorial 
 custom. 
 
 After the thirteenth century, the question seems to have 
 slept until the sixteenth, when the growth of a reform movement 
 ^"^} in favour of ' several ' or enclosed husbandry, as 
 
 Enclosure , n i i ^ i 
 
 Movement opposed to common, open-neld, or champaign 
 farming,^ resulted in the wholesale enclosure of common fields, 
 especially in the West of England, and to the consequent riots 
 in the time of the Protector Somerset, This movement, it 
 will be noticed, was concerned mainly, if not solely, with the 
 methods, not with the matter, of agriculture ; and the manorial 
 * waste,' or common, continued to be a normal feature of the 
 English countryside for two centuries more. 
 
 Then, indeed, with the genuine prosperity of agriculture 
 in the eighteenth century and the artificial prosperity pro- 
 Second duced bv the French wars and the Corn Laws in the 
 
 Enclosure , ." i i < i 
 
 Movement early nineteenth, the enclosure movement took 
 on a new and acuter phase. This time the manorial lords aimed, 
 not merely at securing a free hand for their improvements in the 
 soil already under the plough, but a largely increased area of 
 private land, which they could either use for agriculture, or sell 
 or lease for building or mining purposes. Then was seen the 
 enormous importance of the rule deduced from the Statute of 
 Merton. For, with mineral discoveries and the rapid growth of 
 manufacturing towns, the value of some of the manorial wastes 
 rose to fabulous heights ; and, after the commoners or tenants 
 had been compensated on the basis of the value of their ancient 
 rights, the whole of the residue went into the pockets of the lords. 
 One circumstance alone rendered this process of appropriation 
 difficult. Owing to the immutable character of manorial custom, 
 Inciosure ^^^^ 'th© certainty that, among the many persons 
 ^'^^^ claiming common rights in a waste, there would be 
 
 some whose title was imperfect or doubtful, it was practically 
 necessary, in almost every case, to obtain a private Act of Parlia- 
 
 ^ The academic champion of the movement was Thomas Tusser, whose rhymed 
 tract Five Hundred Points of Husbandry (ed. Mavor, 1812) is an amusing and racy, 
 but somewhat one-sided, picture of the agricultural life of his day.
 
 264 A SHORT HISTORY OF ENGLISH LAW 
 
 ment to effect a safe enclosure. But Parliament, in the eigh- 
 teenth century largely composed of landowners, was anxious to 
 facilitate the process; and Inclosure Acts passed with extreme 
 rapidity. ]Moreover, in the year 1801, a statute known as the 
 Inclosure (Consolidation) Act^ established a common form which 
 could be incorporated by reference into any private Inclosure 
 Actj and thus still further simplified the process. Finally, in the 
 year 1845, Parliament determined to dispense with the necessity 
 of special legislation altogether. By the Inclosure Act of that 
 Inclosure ycar^ was set up a Board of Inclosure Commissioners, 
 Commis- who wcrc entitled to issue provisional schemes for the 
 carrying out of enclosures. These schemes were then 
 to be embodied in Provisional Orders, which, in the form of a 
 Schedule to a short annual Act, should go, more or less auto- 
 matically, through Parliament. 
 
 Such vigorous progress was made under these encouraging 
 auspices, that in the early 'sixties, England suddenly awoke to 
 the fact that she was being deprived of one of her chief national 
 assets and threatened with asphyxiation in her rapidly grow- 
 ing towns. The Commons Preservation Society was 
 
 Commons i • i c i r» c • 
 
 Preservation formed ui the year 1865 ; and one of the first fruits 
 ocie y ^^ .^^ vigorous propaganda was the Metropolis (Com- 
 
 mons) Act of the following year,^ which virtually put an end 
 to enclosures within the metropolitan area, and, incidentally, 
 saved for London such priceless possessions as Wimbledon Com- 
 mon and Hampstead Heath. The policy of that Act was to 
 favour dedication to public uses at the expense of enclosure. It 
 did not, in form, repudiate the historical claim of the manorial 
 lords ; but it facilitated a compromise for the benefit of the 
 public. 
 
 Encouraged by the success of its first attempt, the Commons 
 Preservation Society pushed its campaign into the country ; 
 and, ten years later, secured the passing of the Commons Act, 
 ISVO,"* which virtually did for the provinces what the Act of 1806 
 had done for London. A most important clause ^ declared 
 any encroachment on a defined village green to be a public 
 nuisance, and authorized proceedings to be taken in respect 
 of it, not merely before the magistrates, who were supposed to 
 
 "41 Geo. Ill, c. 109. » 8 «fe 9 Vict. c. 118. « 29 & 30 Vict. c. 122. 
 
 * 39 «fe 40 Vict. c. 56. ' §_ 29.
 
 CHANGES IN LAND LAW 2Q5 
 
 be far too lenient towards offences of that kind, but before a 
 county court judge. ^ Even the individual right of isolated 
 enclosure cannot now be exercised without the approval of the 
 Board of Agriculture ; ^ and enclosure schemes have virtually 
 ceased to be practicable. On the other hand, considerable prog- 
 ress has been made with the principle of securing open spaces 
 for the purposes of public recreation ; ^ and the latest general 
 enactment on the subject, the Commons Act, 1899, practically 
 authorizes any District Council, urban or rural, with the 
 approval of the Board of Agriculture, to make a scheme for 
 regulating and managing any common within its district.* 
 
 ^ S. 30. - Law of Commons Amendment Act, 1893, s. 2. 
 
 ' The story of these successful efforts may be read in the volume recently published 
 by Lord Eversley, entitled Commons, Forests, and Footpaths (Cassell, 1910). 
 * 62 & 63 Vict. c. 30, s. 1.
 
 CHAPTER XVI 
 
 NEW FORMS OF PERSONAL PROPERTY 
 
 IT has been previously remarked ^ that, owing to the ap- 
 parently arbitrary decision of the old Common Law Courts 
 not to allow a ' real ' or proprietary action for the re- 
 covery of chattels, there has never been very much of what 
 may be called ' objective ' law of chattels corporeal in England. 
 Whether the apparently arbitrary refusal to which allusion has 
 been made was really due to a belief in the relative unimpor- 
 tance of chattels as compared with land, or to that excessive 
 respect for possession which almost refused a recognition to 
 property unaccompanied by possession, or to the existence of 
 ancient remedies deemed to be adequate for the protection of 
 chattel interests,^ or to some other cause, is a fascinating prob- 
 lem ; but it cannot be further pursued here. It is sufficient to 
 say that, historically speaking, the law of chattels corporeal 
 in England was developed first through the Law of Theft, later, 
 as we have seen,^ through the Law of Tort, and, finally, as will 
 be explained in the succeeding chapter,^ through the Law of 
 Contract. Such slender traces of a Law of Chattels Corporeal 
 as remain after these large branches have been shorn away, will 
 be found in connection with the Law of Succession, and the 
 small if important part of the law which deals with ' reputed 
 ownership,' i.e. ownership severed from possession. A few 
 words on these two heads must suffice for the subject of chattels 
 corporeal in this period ; and we must then turn to the striking 
 development of the law of chattels incorporeal, or ' choses in 
 action.' 
 
 The subject of succession on intestacy was the first aspect 
 of the Law of Succession to receive attention during the period 
 Intestate HOW Under review. As we have seen,^ it was in 
 Succession ^^j^ auomalous position. Properly speaking, the 
 ecclesiastical courts ought to have followed the clearly defined 
 
 * Ante, p. 123. 2 ggg^ for suggestions on this point, ante, p. 59. 
 
 3 Ante, pp. 141, 142. . * Post, pp. 300-303. ' Ante, pp. 60, 61.
 
 NEW FORMS OF PERSONAL PROPERTY 267 
 
 rules of Roman Law on the subject. As a matter of fact, they 
 largely followed vague and fragmentary local customs ; with the 
 inevitable result, that a good deal of irregularit}^ and plunder- 
 ing went on. Where the case was one of pure intestacy, the 
 administrator was, no doubt, compelled by the ecclesiastical 
 court to enter into a bond to distribute the estate among the 
 next of kin.^ But there was very grave doubt whether such a 
 bond was valid when the administrator claimed the grant by 
 virtue of a statutory right," as, for example, under the 21 Hen. 
 VIII (1529) c. 5, which ^ compelled the Ordinary to grant ad- 
 ministration to the widow or next of kin of a deceased who 
 left no will, or whose executors renounced. And when it was 
 merely a question of intestacy as to a residue, it is to be feared 
 that the all-powerful executor generally obtained the lion's 
 share of it. 
 
 Very soon after the Restoration, however, an important 
 statute was passed with the object of controlling the action of 
 statutes administrators, and settling the law of intestate 
 tion succession. This was the Statute of Distribution 
 
 of 1670,^ which required all administrators to enter into bonds 
 before taking up their duties, and subjected them to a process 
 of account in the ecclesiastical courts.^ It then settled the 
 order of succession,^ by providing that the widow of the intestate 
 should be entitled, after payment of the intestate's debts, to 
 one-third of the surplus, if the intestate left children or remoter 
 issue ; to one-half, if no issue survived the intestate. After 
 the widow is provided for, the residue (or the whole estate, if 
 there is no widow) is to be divided equally among the intestate's 
 children ; the representatives of deceased children standing 
 in their parents' shoes, but all issue (except the heir-at-law 
 in respect of land) bringing into ' hotchpot,' or account, all 
 advances made to them by the intestate during his lifetime.^ 
 If there are no issue who survive the intestate, then the whole 
 estate (or the half if there is a widow) is to be divided equally 
 among the blood relations of the intestate in the nearest degree ; 
 
 ' Godolphin, Orphan's Legacy (ed. 1685) 255. 
 * Davis V. Matthews (1655) Styles, 455. 
 
 3S. 3(6). ^ Ibid., S3. 2-4. 
 
 < 22 & 23 Car. II, c. 10. « Ibid., ss. 5-7. 
 
 ' Though the wording of the section (3) is quite general, it is probable that the 
 'hotchpot' clause only applies to the distribution of the estate of a father.
 
 268 A SHORT HISTORY OF ENGLISH LAW 
 
 deceased brothers and sisters, but no other collaterals, being 
 represented by their surviving issue. Finally,^ the Act lays 
 it down that, for the protection of creditors, no distribution is 
 to be made for at least a year after the intestate's death ; and, 
 even then, that the beneficiaries receiving shares shall give 
 bonds to refund in the event of new debts appearing.^ 
 
 The Act of 1670, which was at first only temporary, was 
 made perpetual in 1685,^ in which same year, however, it was 
 amended by a provision"* that, in the event of no issue of the 
 deceased surviving him, his personalty, subject to the claims of 
 his widow, ^ if any, should be shared equally between his sur- 
 viving mother and his brother and sisters (including their 
 representatives) ; though, of course, the mother is in a nearer 
 degree to the intestate than the brothers and sisters.^ Thus 
 amended, the statute of 1670 has settled the modern law of 
 intestate succession ; but it is noteworthy that it did not come 
 into universal operation throughout England for nearly two 
 hundred years. For the Act itself expressly disclaimed^ all 
 interference with the special customs of London and the Pro- 
 vince of York. It was accordingly deemed necessary, in 1692, 
 to pass a special statute^ enabling the inhabitants of the Province 
 of York (other than freemen of York and Chester), and in 1696 
 another enabling the inhabitants of Wales,^ to dispose of their 
 personalty freely by will, notwithstanding local claims of legitim ; 
 and this liberty was extended in 1703,^'' at their own request, 
 to the freemen of York. Finally, by two sections of an Act 
 dealing with the general government of London, passed in the 
 year 1724,^^ free liberty of testation was given to the citizens 
 of the capital. But, so far as intestate succession was concerned, 
 the City of London and the Province of York remained governed 
 
 ' 22 & 23 Car. II, c. 10, s. 8. 
 
 ' Presumably also the next of kin would have to refund in the event of a will 
 being discovered. 
 
 3 1 Jac. II, c. 17, s. 5. " Ibid., s. 7. 
 
 ' It was expressly ruled in Kcylway v. Keylway (1726) 2 P. Wms. 344, that the 
 section held good for the residue, even if the intestate left a widow. 
 
 * It seems clear from the wording of s. 7 of the Act of 1685, that the widow of a 
 deceased child can claim her part of her deceased husband's share in the intestate's 
 personalty. 
 
 ' S. 4. » 8 & 9 Will. Ill, c. 38. 
 
 « 4 W. & M. c. 2. "'2 «fe 3 Anne, c. 5. 
 
 "11 Geo. I, c. 18, ss. 17-18. (The restriction had only applied to 'freemen,' not 
 to mere residents.)
 
 NEW FORMS OF PERSONAL PROPERTY 269 
 
 by their own local rules until the year 1856/ the eve of the trans- 
 fer of testamentary jurisdiction to the new Court of Probate. 
 IMoreover, a statute of the year 1890- gives a preferential and 
 additional claim of £500, payable rateably out of realty and 
 personalty, to the widow of an intestate who leaves no issue. 
 
 On the other side of succession, viz. the making of wills, 
 the period of the Restoration was also important. For the 
 Wills of ecclesiastical courts, though again they should have 
 
 ersona^ty followed the severe rules of Roman Law, made, 
 apparently, no stipulations whatever on the subject of the 
 form of wills ;^ the only formal requirement being that of writ- 
 ing introduced by the Wills Act of 1540,^ which only applied 
 to devises of land. But the Statute of Frauds, which, as has 
 already been mentioned,'' added, for wills of land, the further 
 requirement of three witnesses, did something, though not 
 much, to amend the scandalous laxity permitted by the eccle- 
 siastical courts in cases of personalty. Parliament, unfortu- 
 nately, did not venture to abolish entirely the ' nuncupative,' 
 or verbal will ; but, if the value of the estate exceeded £30, it 
 required that it should be attested by three witnesses, whose 
 testimony could not be received after six months from the 
 making of the will, unless it had been committed to writing 
 within six days from that event. ^ Moreover, the statute pro- 
 vided that no written will of personalty should be revoked or 
 altered by word of mouth ; unless the words were committed to 
 writing in the testator's lifetime, and approved by him in the 
 presence of three witnesses.'^ 
 
 On the other hand, though the Church courts were criminally 
 lax in the matter of testamentary forms, they positively dis- 
 Exciusion of couragcd the employment of witnesses, by laying 
 
 estimony ^Jqwu all sorts of restrictions with regard to their 
 impartiality, or ' interest.' The ecclesiastical tribunals refused 
 to accept, in proof of a will, the testimony of any person who 
 might be interested, directly or indirectly, in its establishment. 
 Thus no executor, legatee, or even creditor of the deceased,^ 
 
 1 19 & 20 Vict. c. 94. 
 
 253 & 54 Vict. c. 29 (Intestates' Estates Act, 1890). • 
 ^ Godolphin, Orphan's Legacy, p. 9, ad fin. 
 ^32 Hen. VIII, c. 1, s. 1. ^ Ante, p. 239. 
 
 « 29 Car. II, c. 3, sa. 19, 20. ' Ibid., s. 22. 
 
 ^ The objection to creditors only applied where the testator had, by his will, 
 charged his lands with payment of their debts, and thus improved their position.
 
 270 A SHORT HISTORY OF ENGLISH LAW 
 
 could be admitted as a witness of his will ; and, unfortunately^ 
 these absurd exclusions were expressly made to apply to the 
 witnesses required by the Statute of Frauds for the proof of 
 a nuncupative will.^ A useful statute of the year 1752,^ however, 
 did much towards the alleviation of the position, by admitting 
 the testimony of a creditor, even though the will contained 
 a charge of debts on land, and of all beneficiaries ; with a proviso 
 that no beneficiary who was also a witness should be able to 
 take any benefit under the will, except that legatees who had 
 actually been paid their legacies, should not be deprived of 
 them, even though called upon to give evidence, in the event 
 of the will being upset. But the common sense rule, that all 
 testimony shall be admitted for what it is worth, was not finally 
 Wills Act adopted till the passing of the Wills Act of 1837.^ 
 1837 This last statute, in addition to requiring all wills 
 
 (other than those of soldiers and sailors on active service)^ to 
 be made in writing signed by the testator in the presence of two 
 witnesses,^ expressly enacted that no will should be invalidated 
 on the ground of incompetency of any witness, and that 
 beneficiaries, creditors, and executors should be admitted to 
 prove the execution of a will ; ^ the penalty imposed by the 
 statute of 1752, however, remaining upon the beneficiaries, 
 including the husband or wife of any witness.^ The Wills Act 
 of 1837 also formulated the rules as to the revocation ^and revivaP 
 of wills ; provided that a general devise or bequest, if otherwise 
 appropriately worded, should pass not merely property belong- 
 ing to the testator at his decease, but property over which he 
 has a general power of appointment ; ^^ and abolished the old 
 perverse rule, that a gift over after the death of a person ' with- 
 out issue ' must be construed, in the absence of counter-expres- 
 sions, as applying to an indefinite failure of issue, not merely 
 a failure at the death of the person named." Finally, the Act 
 prevents a ' lapse ' or failure of a gift, whether of real or per- 
 sonal estate, by the death of the beneficiary in the lifetime of 
 the testator, if the intended beneficiary is a descendant of the 
 
 ^ 4 -\nne (1705) c. 16, s. 14 ('Act for the Amondnient of the Law')- 
 2 25 Geo. II, c. 6. ^7 ^yjn jy & 1 Viet. c. 26. 
 
 * Ss. 11, 12. WilLs of these persons are now regulated by a statute of the yc;ir 
 1865, the Navy and Marines (Wills) Act (28 & 29 Vict. c. 72). 
 
 * S. 9. (The requirement attaches also to the exercise of a testamentary power 
 of appointment — s. 10.) 
 
 «S8. 14-17. 'S. 15. 8 Ss. 18-21. ^S. 22. " S. 27. "S. 29.
 
 NEW FORMS OF PERSONAL PROPERTY 271 
 
 testator and has left issue who have in fact survived the testator.^ 
 In such a case, the gift goes as though the beneficiary had sur- 
 vived the testator, and died immediately after. 
 
 The Wills Act of 1837 has been explained in one particular 
 (the position of the testator's signature) by a statute of the 
 year 1852 ; ^ in other respects it is practically intact. But 
 an important statute of the year 1861,^ commonl}^ known as 
 Lord Kingsdown's Act, has mitigated the harshness of the rule 
 of private international law which requires wills of movables 
 to be executed in accordance with the formalities prescribed by 
 the law of the testator's domicile at the time of his death.'' 
 Most of this Act only applies to British subjects. An attempt 
 was made in the same year to establish with foreign States 
 reciprocal agreements as to the requisites of domicile for testa- 
 mentary purposes ; but the Act embodying this attempt ^ has 
 remained a dead letter, no convention under it having been made. 
 
 The other change in the law of chattels corporeal which 
 deserves a word of notice, is concerned with ' reputed ownership.' 
 In spite of the fact that bailments of all kinds were well known 
 in the Middle Ages, and, as we have seen,^ were early recog- 
 nized by English law, that law always looked with suspicion 
 upon any attempt to separate possession and ownership. Thus, 
 Transfer soon after the famous statute of 157F had been 
 Possession passed to invalidate dispositions made with intent 
 to defraud creditors, it was laid down, in Twyne's Case,^ that 
 retaining of possession by a person who conveyed away the 
 property in goods was one of the ' badges of fraud ' which 
 would go far to upset the disposition. In 1623, one of the 
 earliest Bankruptcy Acts^ laid it down, that goods in the pos- 
 
 ' S. 33. (S. 32 makes a corresponding provision in the case of any devise of an 
 estate tail, where the issue in tail survive the testator.) 
 
 2 15 & 16 Vict. 0. 24 ('Wills Act Amendment Act')- 
 
 3 24 & 25 Vict. c. 114 ("Wills Act, 1861'). 
 
 ^ The will of a British subject is good as to form, if it is made according to the 
 forms of the law of the place (a) where it is made, or (b) of the testator's domicile at 
 the time of making the will, or (c) of the testator's domicile of origin, being in the 
 British Dominions (s. 1). If the will is made in the United Kingdom, it may be 
 made according to the law of the place where it is made (s. 2). And no subsequent 
 change of domicile by the testator affects a will (s. 3). 
 
 5 24 & 25 Vict. c. 121. '' 13 Eliz. c. 5. 
 
 6 Ante, p. 1.34. « (leoi) 3 Rep. 
 
 ^21 Jac. I, c. 19, s. 11. (According to Lord Hardwicke in Bourne v. Dodson 
 (1740) 1 Atk., at p. 157, this section was not acted upon until the unreported case of 
 Stephens v. Sole in 1736.)
 
 272 A SHORT HISTORY OF ENGLISH LAW 
 
 session, order, and disposition of the bankrupt, as reputed 
 
 owner, with the consent of the true owner thereof, at the time 
 
 of the adjudication in bankruptcy, should pass to the bankrupt's 
 
 creditors ; and this provision, in a sHghtly modified form,^ has 
 
 appeared in every succeeding Bankruptcy Act. 
 
 But the most striking development of the principle : en 
 
 jait de meuhles, possession vaut litre, appears in the successive 
 
 „... , „ , Bills of Sale Acts passed since the middle of the 
 Bills of Sale . t • p i p i i i- 
 
 nineteenth century. In spite or the tact that delivery, 
 
 or transfer of possession, was long considered by the common 
 
 law as the only satisfactory evidence of transfer of chattels 
 
 corporeal, the doctrine was admitted in theory, before the end 
 
 of the sixteenth century,^ that the property in goods would pass 
 
 by assignment under seal, without delivery. Here again, the 
 
 transaction was, after 1571, always subject to impeachment 
 
 under the statute of that year ; ^ but if in fact it was made bond 
 
 fide, either as an absolute transfer or as a mortgage, it would 
 
 be good, at any rate as against individual creditors. 
 
 In the year 1854, however, the evils attendant on this state 
 
 of the law evoked a statute ^ designed, somewhat on the lines 
 
 of the earlier Land Registry Acts, to enable any person who 
 
 might be thinking of giving credit to another, to ascertain 
 
 whether the latter was really owner of his stock-in-trade of 
 
 furniture. This statute provided,^ that every bill of sale or 
 
 document (other than marriage settlements and ordinary 
 
 commercial documents of title) transferring the property in, 
 
 or authorizing a stranger to take possession of, goods in the 
 
 * possession or apparent possession ' ^ of the transferor or licensor 
 
 as security for debt, should be void against the assignees in 
 
 bankruptcy and the execution creditors of the apparent owner 
 
 of the goods, unless it, or a true copy of it, with an affidavit 
 
 as to the time of its execution, were filed with an official of the 
 
 Court of Queen's Bench, within twenty-one days after the 
 
 ^ The later provisions, e.g. Acts of 1869 (s. 15 (5)) and 1883 (s. 44 (iii)) are con- 
 fined to goods apparently owned by the bankrupt in the way of his trade. 
 
 ^ See Butler's and Baker's Case (1591) 3 Rep., at 26b (2d resolution of the 
 Court). 
 
 ' 13 Eliz. c. 5. Apparently, it was immaterial whether or not the transaction 
 ■was for value. 
 
 M7 & 18 Vict. c. 36. * S. 1. 
 
 * The writer has been unable to discover what 'apparent possession' may be. 
 'Apparent ownership' has a meaning ; but what is 'apparent possession,' as distinct 
 from any other ' possession ' ?
 
 NEW FORMS OF PERSONAL PROPERTY 273 
 
 making. The officer of the Court was to keep a book ^ in which 
 particulars of all such documents were to be entered ; and this 
 book was to be open to inspection at any time, on payment of 
 a small fee. 
 
 The Act of 1854 was considerably amended in detail, and 
 rendered more efficacious, by a statute of the year 1866,^ which, 
 Modern among other things, required renewal of registra- 
 
 Cills of , „ nil 
 
 Sale Acts tiou every nve years. But both statutes were re- 
 pealed and replaced by the Bills of Sale Act, 1878,^ which 
 has itself been severely amended by the Bills of Sale Act (1878) 
 Amendment Act, 1882.^ The relations to one another of these 
 last two statutes are not very clear ; but the short result appears 
 to be, that bills of sale given by way of absolute transfer are 
 governed only by the provisions of the former ; ^ whilst bills of 
 sale given by way of security are governed mainly by the latter, 
 but also by such provisions of the Act of 1878 as have not, in 
 the case of bills given by way of security, been repealed by the 
 later statute. 
 
 The chief differences between the two classes of documents 
 are as follows. While each must contain a true statement 
 of the consideration, and be registered within seven days of 
 execution, and re-registered every five years, ^ the attestation 
 of an absolute bill of sale must be by a solicitor, who must 
 state that he has explained the effect to his client,^ but the 
 bill of sale by way of security need only be attested by one cred- 
 ible witness, not a party. ^ On the other hand, the security 
 bill must be in the precise form prescribed in the Act of 1882, 
 which comprises a schedule of the goods included in it ; ^ and, 
 in the case of the security bill, also, the creditor can only seize 
 the goods on the happening of one of the five events specified 
 in the Act of 1882.^° Finally, the security bill is totally void 
 as a bill of sale if it is given in consideration of less than £30, 
 or if it fails to comply with the requirements of the Act of 1882 ^^ 
 (except in the matter of the schedule^") ; and in anv case it does 
 
 IS. 3. 2 29 & 30 Vict. c. 96. 3 41 & 42 Vict. c. 31. 
 
 Mo & 46 Vict. c. 43. ^ Swift v. Pannell (1883) 24 Ch. D. 210. 
 
 ^ Act of 1878, ss. 8, 10, 11. (In the case of the security bill, it is sufficient if it 
 is registered within seven clear days after the earliest time at which it could arrive in 
 England. Act of 1882, s. 8.) 
 
 ^Act of 1878, s. 10 (1). 8 Act of 1882, s. 10. 
 
 9 Act of 1882, s. 9. 1" Act of 1882, s. 7. " Ibid., ss. 4, 8, 9, 12. 
 
 ^- Here it is only void as regards the omitted goods {ibid., s. 4).
 
 274 A SHORT HISTORY OF ENGLISH LAW 
 
 not protect the grantee against the grantor's trustee in bank- 
 ruptcy.^ While an absolute bill, if properly registered, and 
 correct in form, is a complete protection against all creditors 
 except the landlord ; - and an informality only lets in the trustee 
 in bankruptcy and execution creditors, i.e. as between the parties, 
 it is good.^ 
 
 But it is in that great and growing domain of personal property 
 which consists of choses in action, that the great revolution of 
 the latest period in the history of English law has taken place ; 
 and to that revolution we must now turn our attention. 
 
 As its name implies, a chose in action was, originally, a claim 
 which could only be enforced by legal proceedings, as contrasted 
 ' Choses in with a right or interest which could be enforced by 
 '^ ^°°^ actual seizure or possession of a tangible object. In 
 
 early days, the precise situation of the border line between a 
 chose in possession and a chose in action evidently depended 
 on the extent to which self-help was permitted. And, though 
 the rules on the subject of ' forcible entry ' of lands have long 
 been severe,^ there is warrant for saving that the law on the 
 subject of the seizure of chattels is deplorably lax.^ Thus, in 
 cases like bailment, delicate questions might easily arise. Say 
 that I pawn a watch with C. Whilst it is still unredeemed, is 
 it, as regards me, a chose in possession, or in action ? Obviously, 
 I have no right to take it from C ; but it has been held^ that I 
 can sell it to B, not as a chose in action, but as an ordinary chattel 
 corporeal. And yet, the execution creditor of the pawnbroker 
 can seize it for his debt,^ whilst my creditor cannot seize it for 
 his.^ On the other hand, if the bailment be merely of a per- 
 missory character, terminable at the option of the bailor, it 
 seems but reasonable to treat him as still in possession of the 
 chattel ; and he is so treated.^ For, probably, he would be 
 
 1 Act of 1878, ss. 8, 20 ; repealed, as to security bills, by Act of 1882, s. 15. 
 
 2 Act of 1878, ss. 8, 20. 3 ji^^j 
 
 * Statutes of Forcible Entry (5 Ric. II, st. 1 (1381) c. 4 ; 15 Ric. II (1391) c. 2 — 
 both still in force). 
 
 6 Cf. Blades v. Higgs (1861) 10 C. B. (N.S.) 713, where the bailiff of a landowner 
 was allowed to seize rabbits shot by a poacher on his employer's land, and found 
 at a railway station. 
 
 « Franklin v. Neate (1844) 13 M. & W. 481 (but against the opinion of that very 
 learned judge. Baron Parke). ' Rollason v. Rollason (1887) 34 Ch. D. 495. 
 
 » Rogers v. Kennnu (1846) 15 L. J. Q. B. 381. 
 
 » Mandera v. Williams (1849) 18 L. J. Ch. 437.
 
 NEW FORMS OF PERSONAL PROPERTY 275 
 
 allowed to seize the chattel by force. But, obviously, there are 
 difficulties. 
 
 It is not, in fact, till we depart still further from the notions 
 both of a mere right of action, and of a concrete object to be 
 reached by means of it, that we arrive at the most important 
 classes of modern choses in action. Doubtless the bills of 
 exchange which, as we have seen,^ were familiar to English 
 eyes before the end of the sixteenth century, were popularly 
 regarded as ' property ' from an early date ; but the Common 
 Law^ persisted in treating them as mere rights of action, alien- 
 able only by reason of their inheritance from the Law jNIerchant. 
 It was not till the advent of patents, copyright, stock, and 
 shares, that the true importance of choses in action appeared. 
 For these interests could not possibly be regarded as mere rights 
 of action ; they were far too positi^'e and comprehensive, though 
 the French term for a share (' action ') suggests that in one 
 country, at least, the idea of procedural rights clung tenaciously. 
 To take a juristic test, these interests are clearly jura in rem, 
 rights enforceable against all and sundry ; while bills of exchange, 
 and rights of action generally, are, as a rule, only jura in 'per- 
 sonam, i.e. rights enforceable against specific persons. And 
 we remember the ancient rule of English law : that chattels 
 personal cannot be recovered by any form of real action. 
 
 On the other hand, these new interests were certainly in- 
 capable of possession ; nobody could bring the action of Trespass 
 for injury to them. And so they fell, almost inevitably, by 
 reason of their ' incorporeal ' character, into the class of * choses 
 in action.' But it is obvious that there is a wide difference 
 between such interests, and, say, the right to recover damages 
 for a breach of contract or a tort ; and a statute which lumps 
 them all together, or, at least, uses the phrase ' legal chose in 
 action,' or ' things in action,' without explanation, will need a 
 deal of interpretation.^ 
 
 With these preliminary remarks, we turn to examine the his- 
 tory of four leading groups of choses in action of the modern type, 
 viz. copyright, patents, stock and shares, and interests in ships. 
 
 It has been already pointed out,"^ that the disciplinary action 
 
 1 Ante, pp. 126-128. 
 
 -Judicature Act, 1873, s. 25 (6); Bankruptcy Act, 18S3, s. 44 (iii). (For a 
 
 discussion of the scope of 'choses in action' see L. Q. R. Vol. ix, pp. 311-315; x, 
 143-157 ; xi, 223-240.) ^ _4^^g_ pp_ i29, 130.
 
 276 A SHORT HISTORY OF ENGLISH LAW 
 
 of the Court of Star Chamber, combined with the express grants 
 of patents or monopohes by the Crown, had, in effect, 
 created a hterary property in pubhshed works long 
 before the end of the last period. But the point is so interest- 
 ing, and has been so much debated, that a brief summary of 
 its history will not be out of place here. 
 
 The alarm created by the introduction of the art of printing 
 was immediately reflected on the Statute Book. So early as 
 the year 1483,^ the protectionist statute of Richard III had 
 expressly exempted printed books from its general exclusion 
 of foreign merchandise ; but this clause was repealed by a 
 statute of 1533," which totally forbade the sale of books im- 
 ported from beyond the seas, while at the same time empowering 
 the Lord Chancellor, Treasurer, and two Chief Justices, to 
 abate the ' enhanced ' prices of native works. 
 
 As has been said before, the control of the press, from the 
 time of its invention, was exercised by the Privy Council, work- 
 The ing through the Star Chamber. The Star Chamber, 
 
 Company again, used as its agent the Stationers' Company, 
 which is said ^ to have received its first charter from Philip and 
 Mary in 155G, and a confirmation from Elizabeth two years 
 later. No one was entitled to exercise the art of printing unless 
 he was a member of this company ; and the company was vested 
 with the usual disciplinary powers of craft gilds, for the double 
 purpose of preventing any infringement of its monopoly and 
 controlling its own members. Further than that, no book could 
 be published without an express license of some high State 
 official. It is obvious, therefore, that any infringement of the 
 monopoly de facto created by the grant of a license to publish, 
 could only be effected with the collusion of the government ; 
 even though no express grant of a monopoly were made. And 
 it is said, that this fact was explicitly recognized by a decree of 
 the Star Chamber in 1637.^ 
 
 It might have been supposed that the withdrawal of the 
 Crown from Parliamentary proceedings at the outbreak of the 
 Common- Civil War, would have led to a relaxation of this 
 
 wealth . T^ 1 T T-» !• 1 
 
 Ordinance rigid system. But the Long Parliament proved to 
 be no more liberal on this point than the statesmen of Eliza- 
 
 > 1 Ric. Ill, c. 9, s. 12. - 25 Hen. VIII, c. 15. 
 
 3 Donaldson v. Beckett (1764) 2 Bro. P. C. 13G. * Ibid., ubi sup., at p. 136.
 
 NEW FORMS OF PERSONAL PROPERTY 277 
 
 beth and James; and, by an Ordinance of the year 1643/ 
 the system was substantially confirmed, with the necessary 
 adaptations. No books were to be printed without hcense of 
 the ParHamentary Commissioners, and entry in the Stationers* 
 Register ' according to ancient custom.' Moreover, no un- 
 authorized person was to print or import copies of books Ucensed 
 and duly registered as belonging to a member of the company ; ^ 
 and the most drastic powers of search and seizure, extending 
 even to arrest of the person, were given to the company. 
 
 In spite of the indignant protest of Milton, before referred 
 to, this system appears to have continued during the rest of 
 Licensing ^^c Interregnum. Immediately after the Restora- 
 Act tion, it was revived and intensified by the Licensing 
 
 Act of 1662,^ which not only confirmed the monopoly of the 
 Stationers' Company and its drastic powers'* as well as the 
 rule against unlicensed printing,^ but extended the right of search 
 to King's Messengers, armed with warrants of a Secretary of 
 State, who ' for the better discovering of printing in corners 
 without license,' are empowered to take with them constables 
 or such other assistance as they shall see fit, and, at any time 
 they shall think fit, to search all houses and shops where they 
 shall know, or on some probable reason suspect, any unlicensed 
 printing to be going on.^ This drastic clause was probably 
 the origin of those ' general warrants ' which played such a 
 conspicuous part a century later ; but the Act of 1662 is also 
 important as introducing the rule,^ that free copies of all pub- 
 lished works are to be sent to the King's Library and the two 
 older English universities, whose peculiar privileges are expressly 
 preserved. ^ 
 
 It is again obvious, that the Licensing Act, though not in 
 form creating any positive copyright, in effect would make it 
 impossible, without a breach of law or the connivance of the 
 State, for any unauthorized person to infringe the negative 
 monopoly conferred by the licensing system on the printer of 
 a duly licensed and registered book. And, in fact, there are 
 substantial traces, so early as the year 1679, of the recognition 
 
 ^ Acts and Ordinances of the Commonwealth, I, 184-7. 
 
 ^ This is a clear recognition of copyright, though rather in the printer than the 
 author. 3 JS & 14 Car. II, c. 33. 
 
 ''Ss. 3, 10 (the number of printers was also severely restricted). 
 »S. 3. «S. 15. 'S. 17. 8S. 18.
 
 278 A SHORT HISTORY OF ENGLISH LAW 
 
 of a right of action, a variety of the Action of Case, for such 
 infringement;^ while, from the year 1681 onwards, Chancery 
 seems to have granted injunctions to prohibit similar offences.^ 
 
 But, as is well known, the Licensing Act, which was from 
 the first treated as temporary, was, after various short renewals, 
 finally cast out by Parliament in the year 1695;^ and there- 
 upon the whole licensing system, together with a large part of 
 the monopoly of the Stationers' Company, fell to the ground. 
 Unfortunately, the indirect protection afforded to authors by 
 the system fell with it ; and, though Chancery seems to have 
 continued to give them some trifling assistance,^ it is doubtful 
 whether this assistance extended to any but ' prerogative ' 
 rights, such as those connected with the sale of Bibles and 
 almanacs. It was, of course, difficult, if not impossible, in face 
 of the Statute of Monopolies, to revive the practice of granting 
 patent rights. 
 
 At length, however, in the year 1709,^ the first direct statu- 
 tory creation of copyright took place. By the statute of Anne, 
 First Copy- ^^le exclusive right of publishing was conferred upon 
 right Act the author and his assigns for a period of fourteen 
 years from publication ; provided that the work in question 
 were registered before publication at Stationers' Hall.^ The 
 period of fourteen years was probably due to the reflex action 
 of the Statute of INIonopolies of 1G23 ; but a relaxation of it 
 was found in a clause giving the author an extension to another 
 period of fourteen years, if he should be living at the expiry of 
 the first period.^ The former licensing authorities were still 
 allowed to regulate, to a certain extent, the prices of books ; ^ 
 
 1 Lilly, Modern Entries (ed. 1723) p. 67, whore the Declaration in Ponder v. Braddell 
 lor the unauthorized printing of Bunyan's Pilgrim's Progress, ia given ; but the fate 
 of the action is not stated. The plaintiff is described as 'proprietor of the copy of 
 a certain book.' Needless to say, the plaintifT was not the author. 
 
 - Particulars are given in the report of Donaldson v. Beckett (1774) 2 Bro. P. C, 
 at pp. 137-8. 
 
 ' This fact is not so obvious as it might be ; owing to the peculiar history of the 
 Licensing Act. The statute was renewed in 1692 by the Expiring Laws Continuance 
 Act (4 W. & M. c. 24, s. 14) for one year from 13th February, 1692, and thence until 
 the end of the next session of Parliament. The next session after 13th February, 
 1693, began on 12th November, 1694, and ended on 3d May, 1695. By that time 
 the Commons had definitely refused to include the statute in the Expiring Laws Con- 
 tinuance Act of the year 1695 (6 & 7 Will. IIL c. 14). The Licensing Act, there- 
 fore, ceased to be in force on 3d May, 1695. (I owe these facts to the kindness of 
 Master Romer.) 
 
 " See particulars in Donaldson v. Beckett, ubi sup., at p. 137. 
 
 ^H Anne, c. 19 (or 21). « Ss. 1, 2. ^ S. 11. » S. 4.
 
 NEW FORMS OF PERSONAL PROPERTY 279 
 
 and the policy of prohibiting the importation of English books 
 printed abroad was continued, doubtless in the supposed interests 
 of authors themselves.^ The list of free copies was extended to 
 nine; for the purpose of including the Scottish Universities, 
 Sion College, and the Faculty of Advocates.^ 
 
 So far as literary copyright is concerned, the period between 
 the passing of the Act of Anne and the Copyright Act of 1842, 
 was marked chiefly^ by the settlement of two important ques- 
 tions. One of these was precisely that which has presented 
 itself in these pages. Was there or not, apart from the Act of 
 Anne, any ' common law ' copyright in published works ? This 
 question was decided, for legal purposes, in the negative, by 
 the House of Lords, in the famous case of Donaldson v. Beckett, 
 in the year 1774.'* The case is interesting, for literary as well 
 as for legal reasons; for it was concerned with the proprietor- 
 ship of Thomson's charming poem The Seasons, and his much 
 less valuable tragedy Sophonisba.^ The other question related 
 to the property in unpublished writings, such as letters and 
 diaries. Could any person into whose hands such documents 
 lawfully came print and publish them for profit ? This question 
 was answered in the negative by Lord Hardwicke, in the case of 
 Pope V. Curl, decided in 1741,^ in which, it is interesting to 
 note, the author of the letters in question was himself plaintiff. 
 Lord Hardwicke's Order lays it down, that the fact that letters 
 are written to A, does not make them the property of A, in 
 the sense that he may publish them. They are his to read, 
 not to publish. 
 
 In the year 1842, the second great Copyright Act^ made 
 a liberal extension of the period of copyright, by providing 
 Copyright ^hat it sliould continue for forty-two years from 
 Act, 1842 publication, or, if the author were then living, till 
 the expiry of seven years from his death ; and this extension 
 applied to works then in existence of which the copyright had 
 
 IS. 7. (This policy was not abandoned tiU 1801 (41 Geo. Ill, c. 107, s. 7).) 
 
 ^ S. 5. (It will be remembered that the Union with Scotland had taken place two 
 years before the passing of the Act of 1709. On the Union with Ireland in 1801, an 
 Act (41 Geo. Ill, 0. 107) was passed to extend the rules of the Act of 1709 to that 
 country.) 
 
 ^ There was a statute in 1814 (54 Geo. Ill, c. 156) which extended the author's 
 copyright to the period of his life, when that exceeded 28 years from publication 
 (s. 4). 4 9 Bro. P. C. 129. 
 
 ^ Again, it is perhaps needless to say, the author was not the plaintiff. 
 
 ^2 Atk. 342. 7 5 & 6 Vict. c. 45.
 
 280 A SHORT HISTORY OF ENGLISH LAW 
 
 not expired, and was still vested in the author or his family.^ 
 The Act settled a somewhat burning question, by providing^ 
 that the contributions to encyclopaedias and periodical works 
 or works published in series, should belong to the proprietor 
 who had commissioned and paid for them ; but, in the case of 
 a contribution to a periodical, the Act provided^ that the con- 
 tributor might republish after twenty-eight years, during which 
 time the proprietor of the periodical should not be entitled to 
 publish in separate form without the author's consent. The 
 right to forbid reproduction of their work in dramatic form, 
 which had been conferred upon authors for a period of twenty- 
 eight years or life by a statute of the year 1833, ■* was, by the Act 
 of 1842,^ placed on the same footing as to duration as literary 
 copyright, and extended to musical works. 
 
 Meanwhile, an attempt had been made^ to extend the pro- 
 tection afforded by the copyright law to the works of English 
 Interna- authors in foreign countries, on terms of reciprocity 
 Copyright which should equally protect the works of foreign 
 authors here ; and this attempt was repeated in a statute of the 
 year 1844,^ which empowered the Crown, by Order in Council, 
 to grant protection to foreign authors in whose countries English 
 authors received similar consideration. Obviously, however, 
 such an attempt, in the absence of international co-operation, 
 was not likely to go very far, or be very satisfactory ; and 
 accordingly, the friends of literature bent their efforts to secure 
 such co-operation. At length, in the year 1885, a conference 
 took place, which produced a document known as the ' Berne 
 Convention,' setting forth a basis of an international copyright 
 code for the civilized world. Obviously, this document is of 
 no legal validity in any country which has not accepted it. 
 But Great Britain immediately gave in her adhesion ; and, in 
 the year 1886, the Imperial Parliament passed a short Act^ to 
 enable the Crown, and all persons interested, to give its pro- 
 visions the force, not merely of international, but of national law. 
 
 ' Ss. 3, 4. 2 S. 18. 3 7^^_ 
 
 ^ 3 & 4 Will. IV, c. 15, s. 1. (It is to be observed, that the period of protectioa 
 given to dramatic works by this Act, and to dramatic and musical works by the Act 
 of 1842 (s. 20) ran from publication (or representation), and that it obviouslj' only 
 applied to dramatic and musical works composed as such, i.e. not to the right of 
 adaptation.) * S. 20. « By 1 & 2 Vict. c. 59. 
 
 ' International Copyright Act (7 & 8 Vict. c. 12). 
 
 * International Copyright Act (49 & 50 Vict. c. 33).
 
 NEW FORMS OF PERSONAL PROPERTY 281 
 
 One other point remains to be noticed, before we proceed 
 to a brief summary of the statute which, just as this book goes 
 Colonial ^o press, has remodelled English copyright law. 
 Copyright Acts of the Imperial Parliament do not affect the 
 colonies ; unless ' either by express words or necessary implica- 
 tion (they) extend to the colonies.'^ No such expression or 
 implication is to be found in the early copyright statutes, as 
 regards the general purview of copyright ; but in those statutes, 
 and especially in the Act of 1842, will be found certain pro- 
 visions- prohibiting the import into any part of the British 
 Dominions of copies of British copyright works printed abroad, 
 e.g. the well-known ' Tauchnitz ' editions. And so, until the 
 passing of the Colonial Copyright Act, 1847,^ there appears 
 to have been no prohibition (other than the expense involved) 
 against the printing and selling in the British colonies of British 
 copyright books; even against the wishes of the proprietors 
 of the British copyright. By that statute, however, the Crown 
 was empowered, on the passing in any colony of a proper copy- 
 right statute, affording due protection to British authors, to 
 exempt that colony from the operation of the prohibitory clauses 
 of the Acts of 1842 and 1845; and, though this does not seem 
 to be a great inducement, in fact the good sense and loyalty 
 of the great self-governing colonies, have caused them, in most 
 cases, to enact proper copyright legislation. Accordingly, 
 after an Act relating specially to Canada had been in operation 
 for eleven years, the Imperial Parliament, in the International 
 Copyright Act, 1886,^ boldly extended the law (with certain 
 slight exceptions) both of national and international copyright, 
 to the whole of the British dominions. 
 
 The Copyright Act, 1911, deals with all aspects of the ques- 
 tion — national, colonial, and international ; also, in addition 
 
 to books and other printed matter, with dramatic 
 Act of 1911 , . . 1 / • 1 11. 
 
 work, artistic work (pictures, sculptures, and archi- 
 tectural drawings),^ engravings, and photographs.^ The chief 
 
 ^ New Zealand Loan, &c. Co. v. Morrison [1898] A. C, at p. 357, per Lord Davey. 
 
 2 Copyright Act. 1842, s. 7 ; 8 & 9 Vict. (1845) c. 93, s. 9. 
 
 3 10 & 11 Vict. c. 95. *S. 8. 
 
 * The protection extends, not merely to the reproduction of the dra-wnngs, in 
 similar form, but to application of the ' character or design ' on other buildings (s. 35) . 
 
 ^ The Act does not, however, give protection to industrial designs intended to 
 be multiplied by industrial process (s. 22). These may be protected under the 
 Patent Act.
 
 ^82 A SHORT HISTORY OF ENGLISH LAW 
 
 changes introduced by it are, to fix a uniform period for copy- 
 right of the author's hfe, and fifty years further/ or, where 
 the work is posthumously pubhshed, of fifty years from publi- 
 cation.^ In the case of photographs, however, the protection 
 only runs for fifty years from the making of the original nega- 
 tive from which the photograph is taken ; ^ and, in the case 
 of gramophone and similar records, for a like period from the 
 making of the original plate. ^ But, though copyright remains 
 generally assignable, no assignment (otherwise than by will) 
 by an author, who is also the first owner of any copyright, 
 will operate to pass any copyright beyond twenty-five years 
 from his death ; on the expiration of which period the copy- 
 right will pass to the author's personal representatives.^ There 
 are, however, important provisions in the iVct to prohibit the 
 suppression of an author's works after his death.® 
 
 The practice of requiring delivery of free copies to public 
 institutions, which began, as we have seen,^ in 1662, and has 
 since undergone so many fluctuations, is now settled by re- 
 quiring the publisher to deliver one copy of the best and most 
 complete form of every book published by him to the British 
 Museum, and entitling five other libraries, those of Bodley, 
 Cambridge University, the Faculty of Advocates at Edinburgh, 
 Trinity College, Dublin, and the National Library of Wales- 
 (the latter with certain reservations) to claim copies of the 
 most numerous edition.^ 
 
 A somewhat startling feature of the Act is, that it professes ^ 
 to abolish entirely the so-called ' common law ' or proprietary 
 rights of an author or any one else, in both published and un- 
 published material ; but this apparent revolution in the law 
 affecting unpublished material is substantially explained by the 
 fact that, under the new statute, copyright in literary, dramatic, 
 musical, and artistic work will run, not from the date of pub- 
 lication, but from that of creation. ^° The change will, however, 
 doubtless affect the date of publication of political memoirs 
 and the like ; though, presumably, so long as these remain 
 
 ' S. 3. (Generally speaking, the extension applies to existing copyright (s. 24) 
 in the manner specified in Sched. I of the new Act.) ^ S. 17. 
 
 ' S. 21 I In these cases, the owner of the original negative or plate is deemed to 
 ^ S. 19 I be the author of the work. » S. 5 (2). 
 
 * S. 4. The Act retains the generally discredited 'compulsory license' system. 
 ''Ante, p. 277. « S. 15. » S. 31. 
 
 ^^ Ss. 1 (1), 3. (This fact is not made so clear as it might be.)
 
 NEW FORMS OF PERSONAL PROPERTY 283 
 
 in the actual custody of the persons entitled to publish them, 
 the ownership of the material will be protected by the ordinary 
 law of property. With regard to copyright in work which 
 first appears in an oral form, the Act in effect gives no exclusive 
 right to the reproduction of political speeches ; ^ but, as respects 
 other oral deliveries, such as lectures, addresses, non-political 
 speeches, and sermons, it treats the first authorized delivery 
 in public as the creation, and gives the authors the general 
 period of life and fifty years as the period of copyright.^ 
 
 Finally, the new statute substantially incorporates the pro- 
 visions of the existing International Copyright Acts, by em- 
 powering the Crown ^ to extend their operation to such countries 
 as shall have made due provision for reciprocal treatment of 
 British authors ; but the operation of such an Order will not 
 extend to a self-governing colony, unless that colony volun- 
 tarily adopts it.'* Similarly, the Copyright Act itself, though 
 generall}^ operative throughout the Empire, will not apply 
 to a self-governing colony ; unless either such colony has enacted 
 satisfactory provisions for the protection of British authors 
 within its boundaries, or unless the legislature of such colony 
 has expressly adopted it.^ But, until the new Act does apply 
 to a self-governing colony, the previous law will be in force 
 there; ^ although, for most purposes, the Act of 1911 has super- 
 seded all previous legislation on the subject of copyright.'^ 
 
 The modern system of monopoly rights in the reproduction 
 
 and distribution of newly invented articles of manufacture, 
 
 commonlv known as ' patents,' had also, as we 
 Patents *" . 
 
 have seen,^ established itself during the preceding 
 
 period, under the exempting clause of the Statute of Monopolies, 
 
 passed in 1623.^ Apparently, this simple provision served the 
 
 needs of the country for more than two hundred years ; except 
 
 that the so-called ' copyright in designs,' i.e. the exclusive right 
 
 to reproduce articles of a particular design, was acquired by 
 
 those interested in the Manchester soft-goods trade in the 
 
 eighteenth century. ^° But in the year 1835, the Crown was 
 
 empowered, in special cases, to extend the duration of a patent 
 
 1 S. 20. Apparently, only a newspaper may publish unauthorized reports (Qu. 
 any time limit?). 
 
 2Ss. 1 (3), 35 (1). 'S. 29. ^S. 30. ^g. 25(1). 
 
 6S. 26 (2). 'S. 36. ^Ante, pp. 128, 129. 9 21 Jae. I, c. 3, s. 6. 
 
 1° 27 Geo. Ill (1787) c. 38 ; 34 Geo. Ill (1794) c. 23.
 
 284 A SHORT HISTORY OF ENGLISH LAW 
 
 for seven years; and the unauthorized use of the name of a 
 holder of a patent was prohibited under penalties.^ In the 
 year 1839, ' copyright in design ' was made appHcable generally 
 to all manufactures, or, at least, widely extended to include, not 
 merely printed patterns, but models of solid fabrics, and the 
 shape of any article of manufacture not included in the statutes, 
 previously alluded to, of the eighteenth century.^ The pro- 
 tection given by this statute was brief, covering only a period 
 of twelve months ; ^ but this period was extended to three years, 
 and the scheme considerably amended, by statutes of the 
 years 1842 and 1843.^ 
 
 The great increase of inventiveness in mechanical processes 
 which attended the industrial revolution of the first half of the 
 nineteenth century, soon outgrew the primitive machinery by 
 which the Statute of ^Monopolies had been worked. Accord- 
 ingly, in the year 1852,^ the present Patent Office was established 
 by Act of Parliament ; and a regular process of application, with 
 provisional and complete specifications, reference to Law 
 Ofiicer, advertisement, and objections, much as it now exists,^ 
 was set up. This Act also introduced the system of periodical 
 payment of stamp duties, first fixed at the amounts of £50 and 
 £100, payable at the end of the seventh and tenth years re- 
 spectively of the currency of the patent.^ The x\ct also provided 
 for the establishment of a Patent Register, in which inventors 
 desirous of ascertaining whether their ideas had been anticipated 
 might make effective search.^ 
 
 For some time prior to the year 1875, Courts of Equity, in the 
 exercise of their jurisdiction in the matter of fraud, had been in 
 the habit of issuing injunctions ^ against the false use of trade 
 names, practised for the purpose of ' passing off ' goods as those 
 of some well-known firm of high reputation. Not unnaturally, 
 this protection had greatly added to the value of a ' trade name ' ; 
 and, in spite of the protests of some distinguished judges, it was 
 at length too plain to be ignored, that a new form of property 
 had in fact arisen. Accordingly, it was determined to put this 
 
 > 5 & 6 Will. IV, c. 83, S3. 4, 7. , 2243 yict. c. 17, s. 1. ' Ihid. 
 
 * 5 & 6 Vict. c. 100 ; 6 & 7 Vict. c. 65. ^ \h h \& Vict. c. 83. 
 
 * Ss. 6, 13. t S. 17. 8 S. 34. 
 
 '^ Well-known cases are MillinQion v. Fox (1838) 3 M. & Cr. 338; Croft v. Dmj 
 (1844) 7 Beav. 43; Burgess v. Burgess (1853) 3 Do G. M. & G. 896 (where the in- 
 junction was refused). The Common Law Courts also recognized the right to relief 
 {Sykea v. Sykes (1824) 3 B. & C. 541).
 
 NEW FORMS OF PERSONAL PROPERTY 285 
 
 new property on a statutory footing ; and, by the Trade Marks 
 Registration Act of 1875,^ a person who claimed that a certain 
 Trade name or style (not necessarily his own) had become 
 
 Marks Reg- SO closely associated in the public mind with a par- 
 ticular class of goods sold by him, that it would, in 
 effect, be fraudulent in any rival to sell other goods under it, was 
 authorized to register his claim in a public register.^ At first, 
 this registration was only to be 'prima facie evidence of title ; ^ 
 but if, after a period of five years' registration, no one had suc- 
 ceeded in procuring its removal from the register, the registered 
 proprietor's title would become absolute, and would be assign- 
 able and transmissible with the good-will of his business,"* while, 
 in any case, he would be unable to take proceedings for an al- 
 leged infringement, until his claim was registered.^ Apparently, 
 once his title completed, the proprietor would be able to hold or 
 transmit it in perpetuity. 
 
 An important statute of the year 1883, the Patents, Designs, 
 and Trade Marks Act,^ introduced several alterations into the 
 Patents Act 1^^^- ^^ allowed the fees due to the Crown to be paid 
 of 1883 by yearly instalments,^ extended the maximum period 
 
 of duration of a patent to twenty-eight years, ^ made patents bind 
 the Crown (with due safeguards for the right of Government 
 departments to use them on payment of compensation),^ pro- 
 vided for the issue of compulsory licenses where the patent was 
 not being adequately worked in the United Kingdom, ^° and even 
 made some attempt towards establishing Imperial and inter- 
 national patent rights. ^^ Moreover, it extended the so-called 
 ' copyright in designs ' from three to five years ; ^^ and provided 
 for the re-registration of a trade-mark at the end of fourteen 
 years from its first registration.^^ 
 
 Statutory amendments of minor importance followed in the 
 
 years 1885, 1886, and 1888 ; ^^ and, in the year 1905, the subject 
 
 of trade-marks was definitely severed from Patent 
 Acts of 1907 / . 1 1 • 1 • 1 ii" 1- 1 • N 1 
 
 Law (with which it has, really, little m common) by 
 
 the consolidating Trade Marks Act of 1905.^^ A far more im- 
 
 1 38 & 39 Vict, c, 91. ^ S. 2. 7 Sched. II. 
 
 2 S. 1 6 S. 1. 8 S. 25. 
 5 S. 3. 6 46 & 47 Vict. c. 57. ^ g 27. 
 ^0 S. 22. " Ss. 103, 104. 12 g 50. 13 g 79 
 
 " 48 & 49 Vict. c. 63 ; 49 & .50 Vict. c. 37 ; 51 & 52 Vict. c. 5n. 
 " 5 Edw. VII, c. 15.
 
 286 A SHORT HISTORY OF ENGLISH LAW 
 
 portant statute was that of the year 1907, which contains ^ the 
 famous clause authorizing the Comptroller of Patents - (subject to 
 any appeal to the Court) to revoke any patent after the expiration 
 of four years from its issue, on the ground that it is being worked 
 wholly or mainly outside the United Kingdom. The same Act ^ 
 contains a provision to the effect that the unintentional infringer 
 of a patent shaJl not be liable to damages, but only to an injunc- 
 tion, and another making a renewal of the copyright in a design 
 obtainable as of course for a period of five years, with a dis- 
 cretionary renewal of a second similar period, or a maximum of 
 fifteen years.^ One of the most useful amendments introduced 
 by this Act is that ^ which substitutes the High Court for the 
 Privy Council as the tribunal concerned with petitions for ex- 
 tension of patents ; the substitution of a petition to the Court 
 for the ancient process of Sci. Fa., in the matter of the revocation 
 of a patent, having been effected by the Act of 1883.^ Finally, 
 the whole law on the subject of Patents and Designs was con- 
 solidated by a statute of the year 1907J 
 
 A third and even more important new form of ' incorporeal ' 
 personal property, which acquired definite recognition in this 
 Stock and period, is that which consists of stock, shares, and 
 Shares debentures in or of various forms of joint enterprise. 
 
 Some day, it is to be hoped, the History of Association in Eng- 
 land will be adequately written ; certainly it is well worth writ- 
 ing. Meanwhile, we can only here give a brief sketch of the 
 legal aspect of the subject. 
 
 The medieval forms of co-operation, such, especially, as the 
 village-community, the trade and craft gild, and the * regulated ' 
 company,^ had virtually done their work by the end of the six- 
 teenth century ; though some of the gilds survived, and some of 
 the companies actually did business for some time after. These 
 associations had left as a heritage to modern English law the 
 various forms of co-ownership (joint tenancy, tenancy in common, 
 and parcenary) still recognized by that law, and, above all, the 
 
 * Patents and Designs Amendment Act (7 Edw. VII, c. 28) s. 15. 
 
 ^ This official of the Board of Trade had been substituted in 1883 (Act of 1883, 
 8. 83 (1)) for the Patent Commissioners set up by the Act of 1852. 
 
 'S. 27. *S. 31. 6S. 17. eg 26. 
 
 " 7 Edw. VII, c. 29. The amending Act of that year (c. 28) was thus really 
 etificd at its birth ; but its provisions were, of course, incorporated into the consoli- 
 dating Act. 
 
 «See ante, p. 129.
 
 NEW FORMS OF PERSONAL PROPERTY 287 
 
 priceless conception of the 'corporation,' or juristic person. But 
 co-ownership, as understood by EngHsh law, is far too limited 
 in its scope, and crude in its rules, to afford a satisfactory basis 
 for great commercial enterprises; and the corporation was 
 still in an undeveloped condition, which required much care to 
 render it a really flexible instrument of economics. 
 
 The practice of creating chartered joint-stock companies of a 
 modern type seems to have begun at the commencement of the 
 Joint stock seventeenth century ; and the formation of the East 
 Companies j^^ia Company is one of the earliest, if not the very 
 earliest, examples. At first, it appears, the ' joint stock ' of the 
 company was separately made up for each ship ; perhaps for 
 each voyage. But, in the year 1612,^ the Company made the 
 momentous resolve to have one joint stock for the whole of its 
 affairs, and thus inaugurated a new epoch. The East India 
 Company, or Companies, (for there were two of them), were 
 followed by the Hudson's Bay Company (1670), the existence 
 of which was recognized by statute in 1707,^ and by the Bank of 
 England and the notorious South Sea Company. Owing to the 
 practice which had hitherto connected such companies with the 
 monopoly of a particular trade, there were grave doubts whether, 
 after the passing of the Statute of Monopolies in 1623,^ the Crown 
 had power to create any such companies ; and it is said,^ that it 
 was through fear of this statute that the Royal African (or 
 ' Guinea ') Company abandoned its monopoly. The Bank of 
 England and the South Sea Company were, of course, established 
 by Act of Parliament ; '" but a simpler solution of the difficulty 
 was found by omitting from charters of incorporation all grants 
 of monopoly rights. It was under this new practice, presum- 
 ably, that the numerous 'bubble' companies which precipitated 
 the disaster of 1720 were formed. Still, however, when any 
 enterprise of great magnitude was to be undertaken on a ' joint 
 stock,' it was the practice to procure incorporation under powers 
 conferred by Act of Parliament. A notable example occurs in 
 the statute of 1719,^ under which the London Assurance and the 
 
 ' Cunningham, Growth of English Industry and Commerce, II, 27. 
 2 6 Anne, c. 37, s. 23. ^ 21 Jac. I, c. 3. 
 
 * Cunningham, op. cit. II, 125. 
 
 ' Bank of England Act, 1694 (5 & 6 W. & M. c. 20) ; 5 Geo. I (1718) c. 19, s. 31. 
 ' 6 Geo. I, c. 18. The two corporations were amalgamated for borrowing pur- 
 poses in 1831, and consolidated in 1853. (See Eloe v. Boyton [1891] 1 Ch. 501.)
 
 288 A SHORT HISTORY OF ENGLISH LAW 
 
 London Fire Assurance Corporations were founded. By an 
 important section of that Act/ all unauthorized joint under- 
 takings formed since 1718 were declared illegal ; but not to the 
 prohibition of any legitimate partnership ' in such manner as 
 hath been hitherto usually.' ^ 
 
 The passing of Sir John Barnard's Act of 1733 against stock- 
 jobbing,^ and of the statute of the year 1767,'* which forbade a 
 stockliolder to vote at any meeting unless he had held his stock 
 for at least six months, shows that the practice of dealing in 
 stocks and shares was growing ; but it was, apparently, not till 
 the year 1825, that a new departure of first-rate importance was 
 made. In that year, however. Parliament completely reversed 
 the policy of 1719, by abolishing all restrictions on joint-stock 
 trading,^ and authorizing the Crown, in grants of future charters, 
 Limited ^^ provide that the members of the corporation should 
 LiabUity [jg ' individually liable, in their persons and property, 
 for the debts, contracts and engagements of the corporation, to 
 such extent, and subject to such regulations and restrictions, as 
 His Majesty . . . may deem fit and proper ' (to be expressed 
 in the charter).^ This clause virtually gave the Crown power 
 to establish the principle of ' limited liability ' ; but it is not 
 quite clear whether in favour of shareholders or creditors. The 
 old rule : quod ah universitate debetur, ah omnibus non dehetur, 
 would have relieved shareholders of all liability. On the other 
 hand, doubtless, the members of an unincorporated association 
 would have been each individually liable to the full extent of 
 the association's engagements. 
 
 A distinct advance towards modern conditions is seen in the 
 Act of 1837'^ which (repealing and substantially re-enacting a 
 slightly earlier statute of 1834^) definitely authorizes 
 the Crown to restrict the liability of members of even 
 an unincorporated association, to a fixed maximum for each 
 share.^ But the Act provides,^" that every association to which 
 this i)rivilege is granted must have a registered deed of partner- 
 
 > S. 18. 
 
 * S. 25. (The framcrs of the section made no attempt to distinguish legally 
 between such a partnership and an unauthorized association. Probably any such 
 attempt would have failed.) 
 
 3 7 Geo. II, c. 8. '7 W' ill. IV & 1 Vict. c. 73. 
 
 *7 Geo. Ill, c. 48. M & 5 Will. IV, c. 94. 
 
 ' 6 Geo. IV, c. 91, s. 1. n Will. IV & 1 Vict. c. 73, a. 4. 
 
 • S. 2. 10 S. 5.
 
 NEW FORMS OF PERSONAL PROPERTY 289 
 
 ship, in which the capital is divided into ' a certain number of 
 shares ' ; and members are to remain Hable until transfers of 
 their shares are registered.^ This important statute, which, 
 apparently, started the Register of Joint Stock Companies,^ 
 also provided for the incorporation of companies for a limited 
 period ; ^ but its chief curiosity is the machinery provided for 
 enabling creditors to assert their rights, and for liabilities to be 
 apportioned among shareholders. The association, in its deed 
 of partnership, names two or more officers by whom it may sue 
 and be sued;^ but, in the latter case, the judgment creditor 
 may, apparently,^ issue execution against any shareholder up 
 to the amount of his liability. The latter must pay ; but he may 
 then claim repayment from the association.^ 
 
 The year 1844-5 may, however, with justice be regarded as 
 laying the foundation of the modern company system. No 
 Legislation less than six great statutes^ were passed within that 
 of 1844-5 period for the purpose ; and these establish certain 
 fundamental principles of classification. In the first place, 
 they distinguish between what may be called ' public com- 
 panies ' in a special sense {i.e. companies formed to execute 
 undertakings of a public nature under special Parliamentary 
 sanction) and ordinary commercial companies, formed simply 
 for profit. The former, though usually incorporated by special 
 Act of Parliament, are governed, in the absence of legislation 
 to the contrary, by the Companies Clauses Act of 1845.^ The 
 latter are, practically, incorporated as of course,^ on fulfilment 
 of the statutory requirements, by registration under the Com- 
 panies Acts, and are governed by their Memorandum and 
 Articles of Association. Again, these latter companies are now, 
 for the first time, definitely distinguished from unincorporated 
 enterprises, by the provision that no association of more than six 
 persons may carry on the business of banking, ^'^ and (with cer- 
 
 1 S. 21. 2 S 16. 
 
 ' S. 29. This clause is probably due to the survival of the medieval idea that a 
 corporation is a body 'having a perpetual existence.' 
 
 <S. 5. 5S. 24. «Ss. 11, 12. 
 
 'These are the Railway Regulation Act, 1844 (7 & 8 Vict. c. 85), the Joint 
 Stock Companies Act, 1844 (7 & 8 Vict. c. 110), the Winding Up Act, 1844 (7 & 
 8 Vict. c. Ill), the Joint Stock Banks Act, 1844 (7 & 8 Vict. c. 113), the Com- 
 panies Clauses Act, 1845 (8 & 9 Vict. c. 16), and the Railways Clauses Act, 1845 
 (8 & 9 Vict. c. 20). 
 
 * See preamble of the Act. ' Ss. 7, 25. 
 
 1" Joint Stock Banks Act, 1844, s. 1.
 
 290 A SHORT HISTORY OF ENGLISH LAW 
 
 tain exceptions) not more than twenty-five any other business, 
 except as a duly incorporated company under the Acts.^ The 
 Companies Act of 1844 also introduced the familiar scheme of 
 directors, general and extraordinary meetings of shareholders, 
 production of balance sheet, audit and other features of the 
 present day.^ 
 
 . Apparently, the principle of limited liability was not made a 
 matter of general right until the year 1855, when a statute ^ 
 (repealed but substantially re-enacted by a statute of the fol- 
 lowing year '*) definitely adopted it as part of the normal system, 
 except for insurance companies and banks. The Act of 1856 
 reduced the maximum limit of non-incorporated partnerships 
 to twenty,^ made calls upon shareholders recoverable as debts 
 due to the company,^ and drew the present well-known distinc- 
 tion between compulsory and voluntary winding-up.^ In the 
 following year,^ a limited company was empowered to convert 
 its fully paid shares into unnumbered stock ; and, a year later 
 still,^ the principle of limited liability was extended, for the first 
 time and with special precautions, to banks. 
 
 In the year 1862, was passed the great consolidating statute,^" 
 which for so long served as the basis of company law. Inciden- 
 Companies tally, it introduced" an alternative method of limita- 
 Act, 1862 ^Jqi^ Qf liability, viz. limitation by guarantee, and 
 defined the liability of past shareholders in the event of a wind- 
 ing-up, by providing ^^ that they should be liable to contribute 
 towards payment of the company's debts only for one year after 
 the transfer of their shares, and, even within that period, only 
 for debts contracted before the registration of the transfer, and 
 in default of shareholders existing at the commencement of the 
 winding-up. 
 
 Apparently, the power to issue debentures and debenture 
 stock is part of the general borrowing power conferred upon 
 most commercial companies by their Memorandum or Articles 
 of Association, and did not, originally, spring from special leg- 
 
 * Companies Act, 1844, s. 1. (The section is involved; but that, apparently, 
 18 its meaning.) 
 
 2Ss. 21. 27. 29, 35. 36. 39. and Sched. A. 
 
 » 18 & 19 Vict. c. 133. 8 20 & 21 Vict. (1857) c. 14. S3. 5-9. 
 
 * 19 & 20 Vict. c. 47, s. 3. »21 & 22. Vict. (1858) c 91. 
 ' S. 4. 10 25 & 26 Vict. c. 89. 
 
 " S. 22. 11 S. 9. 
 
 ' Ss. 67, 102. u S. 38.
 
 NEW FORMS OF PERSONAL PROPERTY 291 
 
 islation.^ But the Companies Act, 1865,- authorized the crea- 
 tion of a special class of 'mortgage debentures,' i.e. debentures 
 charged on certain specific assets of the company, as opposed 
 to a mere floating charge on the assets for the time being created 
 »by an ordinary debenture. The provisions of the Act of 1865, 
 which are only applicable to companies entitled to lend money 
 on land, and only to certain registered securities, were substan- 
 tially modified by an Act of the year 1870.^ 
 
 Various other amendments of company law followed, in the 
 years 1867, 1870, 1877, 1879, 1880, and 1883 ; but the next year 
 of great importance in this connection is 1890, which witnessed 
 the passing of three company statutes. The first of these, the 
 Companies (Memorandum of Association) Act, 1890,^ enabled a 
 company, with the leave of the Court, and after a special resolu- 
 tion of its shareholders, to alter the provisions of its fundamental 
 document of incorporation, viz. its jMemorandum of Association 
 or Deed of Settlement. The second, the Companies (Winding 
 Up) Act, 1890,^ made considerable alterations in the procedure of 
 winding up a company then in existence. The third, the Direc- 
 tors Liability Act, 1890,^ passed in consequence of the decision 
 in Derry v. Peek,'^ rendered directors of a company or prospective 
 company issuing a prospectus containing untrue statements, 
 responsible, in certain circumstances, to persons applying for 
 shares on the strength of them ; even though they (the directors) 
 were ignorant of the untruth of their statements, or even of 
 their issue. 
 
 The year 1900 also witnessed the passing of an important 
 statute * dealing with the formation of companies,^ and pre- 
 scribing certain strict conditions with regard to the first or ' statu- 
 tory ' meeting of a new company,^" the registration of mortgages 
 affecting the assets of a company,^^ and the audit of companies' 
 accounts ; ^- and, in the year 1908, these and all other legislative 
 provisions at present affecting ordinary commercial companies, 
 were consolidated in the Companies (Consolidation) Act, 1908,^* 
 which at present comprises the law on the subject. Insurance 
 
 I Lindley, Companies, I, 300. " 28 & 29 Vict. c. 78. 
 
 ' 33 & 34 Vict. c. 20. (These provisions are not affected by the Act of 1908.) 
 
 ^53 & 54 Vict. c. 62. Ubid., 63. ^ Ibid., 64. 
 
 ' (1889) L.R. 14 App. Ca. 337. 
 
 « Companies Act, 1900 (63 & 64 Vict. c. 48). 
 
 » Ss. 1-11. i» S. 12. " S. 14. >2 ss. 21-23. ^^ 8 Edw. VII, c. 69.
 
 292 A SHORT HISTORY OF ENGLISH LAW 
 
 companies, however, are the subject of a separate consoHdating 
 statute passed in the following year, the Assurance Companies Act, 
 Consoiidat- 1909;^ and banks, and companies specially incorpo- 
 1908 rated by Act of Parliament for carrying out public 
 
 undertakings, do not fall within the scope of either of these 
 Acts. 
 
 The fourth and last kind of personal property to which refer- 
 ence can here be made, is property in ships. Ships, in the widest 
 sense of the term, including both ocean-going and 
 coastal or inland vessels, were, of course, familiar to 
 the Courts, as chattels corporeal, long before the close of the 
 previous period. The facts that a ship on a distant ocean can 
 hardly be said to be under the direct control of her home-sitting 
 owner, and that, in a storm, even the master may be said to be 
 controlled by, rather than in control of, his ship, did not deter 
 the Courts from applying to ships the ordinary possessory rem- 
 edies ; for are not cattle and sheep, the oldest kind of ' chattels,' 
 liable to similar accidents? But the system of registration and 
 partition of ships introduced by the Navigation Acts of Charles 
 II and his successors,^ combined with the later enormous in- 
 crease in the cost of ships, did undoubtedly change the character 
 of ship-owning to such an extent as to give to it much of the 
 Navigation character of that ' ideal property ' which is usually 
 ^^^^ classed as a chose in action. As such, a word must 
 
 be said about it, regarded as a product of the period now under 
 review. 
 
 The Navigation Act of 1660,^ as incidental to its policy of 
 requiring all non-European goods to be imported in English 
 ships, and especially of keeping the colonial carrying trade as a 
 close preserve, required all foreign-built ships, claimed as the 
 property of Englishmen, to be registered in an English or Irish 
 port, with oath as to true ownership, before being allowed to 
 ply between the mother-country and her colonies. The amend- 
 ing Act of 1696'* extended this provision to all vessels taking part 
 in British or inter-colonial trade, and required ^ that whenever 
 
 ^9 Edw. VII, c. 49. 
 
 ^ These were, like so much of the Restoration policy, a legacy from the Common- 
 wealth. The principles of the Navigation policy arc clearly laid down in an 
 Ordinance of the 9th October, 1651. (Acts and Ordinances of the Commonwealth, 
 II, 559-502.) 3 Car. II, c. 18. " 7 & 8 Will. Ill, c. 22, s. 17. * S. 22.
 
 NEW FORMS OF PERSONAL PROPERTY 293 
 
 any alteration of property should take place ' by the sale of one 
 
 or more shares in any ship after registering thereof, such sale 
 
 shall always be acknowledged by indorsement on the Certificate 
 
 of the Register.' A slight relaxation took place in 1773, by a 
 
 statute ^ which, by implication, allowed a foreigner to acquire 
 
 a share in a registered British sliip with the consent of the owners 
 
 of three-fourths of the shares, indorsed on the Register. But 
 
 this concession was probably due to the exigencies of the American 
 
 War; and, on the reconstruction of national policy which took 
 
 place after the loss of the American colonies, the old rule was 
 
 renewed in full vigour by a drastic Act of the year 1786.^ That 
 
 , „^ statute lays it down, that no foreign-built ship (except 
 Act of 1786 . . " . . , T^ . . , , . \ , 
 
 a prize; may be registered as a British ship ; "^ that 
 
 every British ship having a deck or being of fifteen tons burden, 
 must be registered in Great Britain, the Channel Islands, or a 
 British colony, at the port to which she belongs; ^ that no ship 
 may be registered as a British ship unless an affidavit is made 
 that all her owners are British, even British subjects resident 
 abroad (other than members of ' factories ') being excluded ; ^ 
 and, finally, that, whenever property in a British ship is trans- 
 ferred, the certificate of registry must be ' truly and accurately 
 recited .... in the bill or other instrument of sale thereof.' ^ 
 
 A new code of shipping law was contained in an Act of 1823,'^ 
 which, besides making the system of registration universal and 
 compulsory, as a condition of claiming privileges as a British 
 ship,^ introduced one or two new legal features. The customary 
 division of the property in a ship into sixty-four shares was made 
 statutory, with a provision that no more than thirty-two owners 
 should be registered ; ^ while it was also provided,^*' that transfer 
 of a share in a British ship should only take place by bill of sale 
 or other instrument in writing entered on the Registry, the trans- 
 fer, in the event of a later sale to a bond fide purchaser, dating from 
 the endorsement on the certificate of registry. On the gigantic 
 overhauling of the Customs Laws which took place in 1825,^^ a 
 new Registry Act,^" repealing but virtually re-enacting the statute 
 of 1823, was passed. 
 
 The year 1845 witnessed the passing of the first of the great 
 
 » 13 Geo. Ill, c. 26. ' 26 Geo. Ill, c. 60. ' S. 1. ^ Ss. 3, 4. 
 
 ^S. 10. 6g i7_ M Geo. IV, c. 41. « S. 1. » S. 30, i" Ss. 29, 35. 
 
 ^^ The 6 Geo. IV, c. 105, repealed no less than 119 statutes. 
 »2 6 Geo. IV, c. 110.
 
 294 A SHORT HISTORY OF ENGLISH LAW 
 
 modern Merchant Shipping Acts,^ which deal, not merely with 
 
 Merchant the ownership and transfer of British keels, but 
 Shipping -11 1 . « 1 ., 
 
 Acts with the many other mterests or the mercantile 
 
 marine. It would be impossible, in the limits of space at our 
 disposal, to attempt a summary of the legislation on this sub- 
 ject. But it may be pointed out, that the INIerchant Shipping 
 Act of 1854 ^ definitely abandoned the policy of compulsory 
 British building, which had been part of British navigation 
 policy for so long ; ^ and, by allowing ^ five persons to be registered 
 as undivided owners of a share in a British ship, and requiring 
 a special form of transfer to be used and registered,^ practically 
 put the law with regard to the ownership of British vessels on its 
 present footing. After many amendments, the Act of 1854 
 was repealed, and the whole law of merchant shipping re-stated 
 in the great Merchant Shipping Act of 1894,^ which has itself 
 been frequently amended. 
 
 Finally, a word must be said about the transferability of this 
 new kind of property, and of choses in action generally ; for, 
 with regard to the latter subject, there has been a misunderstand- 
 ing which ought never to have arisen. 
 
 It has been, on more than one occasion,^ previously pointed 
 
 out, that the medieval common law had the greatest dislike to 
 
 the assignment of rights which could onlv be enforced 
 Transfer , , , t i /-, i • i 
 
 of Choses by legal proceedings ; the Courts taking the view 
 
 that such a transaction was, in effect, transferring a 
 
 lawsuit, and thus encouraging maintenance, barratry, and other 
 
 evils. This dislike extended to the attempted assignment of 
 
 possibilities, or even future interests of any kind ; which were 
 
 looked upon in much the same light as choses in action. The 
 
 attitude of the Common Law Courts is well summed up in the 
 
 leading Lampet's Case, decided by the full Court of Common 
 
 Pleas in the year 1612,^ which was not definitely overruled until 
 
 the decision of the House of Lords in Theobalds v. Duffry, in 
 
 1724.9 
 
 Meanwhile, however, the completeness of the common law 
 
 ^8 & 9 Vict. c. 116. *S. 55. 
 
 " 17 & 18 Vict. 0. 120. 8 57 & 58 Vict. c. CO. 
 
 » S. 18. ' Ante, pp. 175, 176, 240, 241, 275. 
 
 * S. 37. 8 10 Rep. 46b. 
 
 »9 Mod. 102.
 
 NEW FORMS OF PERSONAL PROPERTY ^95 
 
 rule had been broken down in more than one direction. It is 
 Break-down ^^^^^> ^^^ example, that choses in action were rec- 
 of Common ognized as being devisable by will early in the seven- 
 teenth century ; for, in the case of Gorge v. Chancey,^ 
 decided in the year 1639, it was freely admitted, that even a 
 married woman could bequeath a chose in action which formed 
 part of her separate estate. Obviously, in such a case, for reasons 
 previously given, the Common Law courts would have very little 
 opportunity of interposing their veto ; for, if they refused to 
 recognize the title of the legatee, the Court of Chancery could 
 be appealed to. 
 
 Again, the strictness of the common law rule had been cir- 
 cumvented by the practice of appointing the intended assignee of 
 a chose in action the attorney of the assignor, and thus enabling 
 him to sue the debtor in the assignor's name. That this device 
 was known as early as 1641, is shown by the judgment of the 
 Lords Commissioners in E. oj Suffolk v. Greenvil,^ decided in that 
 year. But the drawback to it was, that the death of the assignor 
 revoked the power of attorney, and destroyed the assignee's 
 title, at least at law.^ 
 
 But the most hopeful way of escape was through the doors 
 of a Court of Equity ; and, soon after the middle of the seven- 
 Equitable teenth century, it becomes clear that the common 
 ssignments |^^ ^^j^ prohibiting alienation is being set at nought 
 by Chancery. The case of Hurst v. Goddard ^ shows a slight 
 inclination to restrict the help of the Court to cases in which the 
 alleged assignment was really made to complete an informal 
 title ; as where a husband sued as his wife's administrator, or 
 where the alleged chose in action was in fact a trust. But the 
 passing of the Statute of Frauds, which clearly recognized the 
 assignability of trusts,^ must have rendered the Court's assistance 
 of little value in such cases ; and, in fact, it becomes clear, as 
 early as 1680, that Chancery will recognize even verbal assign- 
 ments of legal choses in action, such as bond debts,^ or, at length, 
 even simple contract debts,^ and that it will treat such assign- 
 
 ^ 1 Rep. in Cha. 67. ^ 3 Rgp. Cha. 50. 
 
 ' Mitchell V. Eades (1700) Pre. Cha. 125. (The report in 2 Vern. 391 is defective 
 on this point.) 
 
 * (1670) 1 Cha. Ca. 169. ^ 29 Car. II (1677) c. 3, s. 9. 
 
 6 Fashion v. Atwood (1680) 2 Cha. Ca. 6, 38. (Lord Nottingham.) 
 ' Mitchell V. Eades (1700) Pre. Cha. 125.
 
 296 A SHORT HISTORY OF ENGLISH LAW 
 
 ments as binding, even on the creditors in the subsequent bank- 
 ruptcy of the assignor.^ At the same time, Chancery is fully alive 
 to the risks of the proceeding, and lays it down repeatedly,^ that 
 the assignee takes subject to all 'equities,' i.e. claims by the party 
 liable against the assignor, arising before notice of the assignment 
 was received by the debtor. Subject, however, to this reservation, 
 Equity will, if the chose in action is enforceable in Chancery, 
 allow the assignee to sue as plaintiff there ; or, if it is ' legal,' 
 i.e. enforceable only in a Common Law court, compel the as- 
 signor to allow the assignee to sue in his (the assignor's) name, 
 on proper indemnity for costs. 
 
 But the equitable doctrine of the assignability of choses in 
 action was at one time subject to the alleged limitation, that it 
 Valuable ^r^s only effectual, even in Equity, when made for 
 tion valuable consideration. The limitation is stated 
 
 by the Lords Commissioners, in E. of Suffolk v. Greenvil,^ and 
 repeated by Lord Keeper Bridgman in an anonymous case of 
 1675.'* The argument in favour of the limitation seems to 
 have been, that a so-called assignment in equity operated only 
 as an agreement to assign, and that, according to its well-known 
 doctrine, Equity would not enforce a voluntary agreement, even 
 under seal.^ But the fallacy of this reasoning at least as pretend- 
 ing to general application, was soon apparent. Where the assign- 
 ment was of a contingency or possibility, then, no doubt, accord- 
 ing to current ideas, there could be nothing more than an agree- 
 ment to assign, and the doctrine of valuable consideration applied.'^ 
 But where the debt or other liability was actually due, the 
 reasoning did not apply ; and it is doubtful if the requirement of 
 valuable consideration was ever enforced in such a case. At 
 any rate, if it was, it soon ceased to be ; for in Atkins v. Daubeny, 
 decided in 1714,^ the voluntary assignment of a bond was sup- 
 ported, and in Carteret v. Paschal,^ it was admitted by all parties, 
 though it was vital to the decree, that ' if a man in his own right 
 
 ^Peters v. Soame (1701) 2 Vern. 438. 
 
 2 Ashcomb's Case (1674) 1 Cha. Ca. 232 ; Coles v, Jones (1715) 2 Vern. 692. (For 
 this reason it was usual, in Equity, to make the assignor a party, in case questions 
 between him and the debtor should arise.) 
 
 M1641) 3 Rep. Cha. .50. *2 Freem. Cha. 145. ^ Ante, p. 217. 
 
 « D. of Chamlos v. Talbot (1731) 2 P. Wms., at p. 610. (This was the whole 
 point in Tailhy v. Official Receiver (1888) L.R. 13 App. Ca. 523, sometimes quoted 
 in support of the exploded doctrine.) 
 
 -• 1 Eq. Ca. Ab. 45. 8 (1733) 3 p Wms. 198.
 
 NEW FORMS OF PERSONAL PROPERTY 297 
 
 be entitled to a bond, or other chose en action, he may assign it 
 without any consideration.' At length, in Bates v. Dandy, ^ 
 Lord Hardwicke gave the finishing stroke to the doubt by laying 
 it down, that, though a husband may not dispose of his wife's 
 chose in action without a valuable consideration (because his 
 right is only a possibility) ' yet he may release the wife's bond 
 without receiving any part of the money.' A similar doubt arose 
 later on the subject of ' imperfect declarations of trust ' ; ^ but 
 it should have been seen that the same distinction applied there, 
 viz. that such a disposition can only be enforced as an agreement 
 to make a proper settlement, and, as such, it requires a valuable 
 consideration. Thus the framers of the Judicature Act,^ in 
 making debts and other legal choses in action assignable at law, 
 without requiring a valuable consideration, were following sound 
 historical precedent. Had they adopted the opposite course, 
 and required a valuable consideration, it would have been im- 
 possible to make a valid legal gift inter vivos of any chose in action 
 for which a special form of transfer had not been provided. 
 
 This last exception is, no doubt, a wide one ; for, in fact, many 
 of the most important choses in action are subject to special 
 rules in this respect. Thus, negotiable instruments are trans- 
 ferable, according to the rules of the Law Merchant, adopted into 
 English Law, by delivery or indorsement.^ Copyrights, patents, 
 shares and stock, were at early dates made transferable at law 
 by special statutory forms. Probably, however, they are all 
 (with the exception of negotiable instruments) assignable in 
 Equity (i.e. as against all persons but purchasers for value without 
 notice) by mere word of mouth. ^ 
 
 1 (1741) 2 Atk., at p. 208. 
 
 2 Ellison V. Ellison (1802) 6 Ves., at p. 662, per Lord Eldon ; Kekewich v. Manning 
 (1851) 1 De G. M. & G., at p. 187, per Knight Bruce, L.J. 
 
 ^Judicature Act, 1873, s. 25 (6). 
 
 * It seems to have been Lord Somers, in an anonymous case of 1697 (Comyns, 
 43) who refused to disturb the mercantile rule of negotiability, as distinct from mere 
 assignability, by issuing an injunction against a bond fide holder for value. 
 
 ^ Brandt v. Dunlop [1905] A.C., at p. 462, expressions of Lord Macnaghten.
 
 CHAPTER XVII 
 CONTRACT AND TORT IN MODERN LAW 
 
 THE decision in Slade's Case, explained in a previous chapter,^ 
 to the effect that ' every contract executory imports in 
 itself an assumpsit,' seemed to have put the coping stone 
 on the edifice of the law of simple contract, which, as we 
 have seen, had been reared with so much pains in the fifteenth 
 and sixteenth centuries. Now it appeared to be beyond question, 
 that every promise of a lawful character, given in exchange for a 
 valuable consideration, by a person of full legal capacity, amounted 
 to a legally enforceable contract. Whatever view may be taken 
 of the suitability of 'consideration' as the test of simple contract, 
 it cannot be denied that it has the singular merit of appealing to 
 the average man, and, further, of being remarkably easy for a 
 Court mainly concerned with material interests to apply. It 
 avoids all difficult and unsatisfactory enquiries about intention 
 and other mental elements ; and substitutes a broad external 
 standard of the kind beloved by the Common Law. There was 
 at one time a theory, that valuable consideration owed its origin 
 to the influence of Equity. Anything more unlike an equitable 
 doctrine it would be impossible to conceive ; although, as we 
 have also seen,^ Equity did not refuse to adopt it in cases to 
 which it had already been applied by the courts of Common 
 Law. To have done otherwise would have been to open a feud 
 between the two jurisdictions upon a fundamental principle of 
 wide application. 
 
 It was, doubtless, the rapid increase «j the popularity of the 
 action of Assumpsit, following upon the decision in Slade's Case, 
 Statute of that led to the enactment of the celebrated provisions 
 with regard to the evidence for simple contracts con- 
 tained in the Statute of Frauds. By the terms of that statute, no 
 action is to be brought on any contract or promise falling under 
 
 > (1603) 4 Rep. 92b. Ante, p. 140. " Ante, pp. 216, 217.
 
 CONTRACT AND TORT IN MODERN LAW 299 
 
 any one of five important classes of transactions ; unless such 
 transaction has been embodied (not necessarily at the time of 
 entering into it) in some writing signed by the party sought to 
 be charged, or his agent. These five classes of transactions are — 
 (1) promises by executors or administrators to be personally 
 responsible for the obligations of their deceased, (2) promises in 
 the nature of guarantees, (3) agreements made in consideration 
 of marriage, (4) contracts 'or sales' of land, tenements, or heredit- 
 aments or any interest in or concerning them, and (5) agreements 
 not to be performed within the space of one year from the making 
 thereof.^ Further, in a later section,^ the Act laid it down, that 
 no contract for the sale of any goods, wares, or merchandizes 
 for the price of £lO sterling ^ or upwards should be ' allowed to be 
 good,' unless there should be acceptance and receipt of at least 
 part of the goods, or giving of earnest or part payment by the 
 buyer, or some memorandum in writing of the kind just described. 
 Owing to the difference in the wording of the two sections, it was 
 at one time thought that the later (s. 16) actually nullified con- 
 tracts not conforming to its provisions ; while it has always 
 been admitted that the earlier (s. 4) is procedural only, i.e. that 
 a contract not conforming to it is merely unenforceable by 
 action, and not invalid altogether.^ But this doubt has been 
 finally resolved by the substituted section 4 of the Sale of Goods 
 Act, 1893,'' which, in repealing section 16 of the Statute of Frauds, 
 adopts the wording of section 4 of that statute. In order to 
 comply with the requirements, of the sections, all the essential 
 features of the contract must be expressed in the writing ; ^ 
 except that, (1) by virtue of the Mercantile Law Amendment 
 Act, 1856,^ the consideration for a contract of guarantee need 
 not be embodied in it (though of course there must be a considera- 
 tion unless the contract is under seal), and (2) the price need not 
 
 1 29 Car. II, c. 3, s. 4. 2 Ibid., s. 16. 
 
 3 By the Statute of Frauds (Amendment) Act, 1828, s. 7 (9 Geo. IV, c. 14) 
 value was substituted for price, and the section made to apply to 'future goods,' i.e. 
 goods not in existence, or not ready for delivery, when the contract of sale was 
 made. It had formerly been suggested, that such a contract was a contract of 
 employment, not of sale. These alterations are now embodied in the Sale of Goods 
 Act, 1893, s. 4. 
 
 * E.g. it may cause the property in goods to pass, or be used as a defence or 
 set-off. 
 
 6 56 & 57 Vict. c. 71. 
 
 « Wain V. Warlters (1804) 5 East, 10. 
 
 ' 19 & 20 Vict. 0. 97, s. 3.
 
 300 A SHORT HISTORY OF ENGLISH LAW 
 
 appear in the note of a contract of sale, unless it was actually 
 expressed in making the contract.^ 
 
 The provisions of ss. 4 and 16 of the Statute of Frauds have 
 been the subject of much litigation ; but the story of that liti- 
 gation, which is mainly concerned with pure details, cannot find 
 a place in a condensed history like the present. A far more 
 interesting, if less easily intelligible chapter in the development of 
 the simple contract, now demands some attention ; for, with its 
 conclusion, the theory of the simple contract may be said to 
 have become virtually complete. 
 
 A substantive reform which has, like so many legal reforms, 
 been accomplished by the indirect machinery of legal procedure, 
 is always liable to the danger of being defeated by some slight 
 imperfection of that machinery, or some trifling defect in the 
 logic of technical process. This danger threatened the law of 
 simple contract when it was turned on to the subject of bailments, 
 one of the very oldest and most important branches of the Com- 
 mon Law. 
 
 The word ' bailment' is one of the numerous words which, 
 originally used in a wide and general sense, have gradually 
 acquired a special technical meaning. Originally, 
 a ' bailment' was simply a delivery or handing over 
 of any kind {hailler, whence our word 'ball'), whether of body, 
 land, or goods. In connection with land, it retains its signifi- 
 cance in the country of its birth, where the hail a cens is a common 
 interest at the present day. In England, for reasons alluded to 
 elsewhere,^ it had first been confined to the subject of movables, 
 and then to a particular kind of delivery of movables, viz. the 
 delivery on condition of return. As we have seen,^ it was, in 
 this capacity, fully recognized as an important legal transaction 
 in the fourteenth century ; when the remedies of Detinue and 
 Trover were invented to protect it. 
 
 The late Professor Ames, in those articles of his to which we 
 owe so much, insisted ^ that Detinue was really a contractual 
 action ; because it was brought on the promise to return the 
 goods. Now, apart from the fact that the remedy of Detinue 
 is far older than the recognition of simple contract by the King's 
 
 » Hoadly v. McLaine (1834) 10 Bing. 482. 
 
 'Ante, pp. 123-126. ^ Ante, pp. 134, 141. 
 
 * Select Essays in Anglo-American Legal History, III, 433, &c. ,
 
 CONTRACT AND TORT IN MODERN LAW 301 
 
 Courts, and that its connection, through the action of Debt, 
 with the real action to recover land, can easily be traced,^ it 
 seems difficult, in the face of the controversy now to be described, 
 to hold the view that, even in the seventeenth century. Detinue 
 was regarded as an action of contract. It was, in fact, simply 
 an action to recover the goods of the plaintiff in the hands of the 
 defendant, who refused to give them up. 
 
 The truth of this view appears nowhere more clearly than in 
 the famous case of Southcote v. Venner,'^ decided in 1601. In 
 Southcote's t^^^t case, the plaintiff brought Detinue for goods 
 Case delivered to the plaintiff to keep safely. The de- 
 
 fendant pleaded that he had been robbed of them by J. S. But 
 the Court set aside the plea as irrelevant to a claim in Detinue ; 
 * for he (the defendant) hath his remedy over, by Trespass, or 
 Appeal, to have them again.' In other words, the action was 
 not on an implied promise of a modified nature (or, as the 
 Court put it, ' a special bailment ') ; it was a strict action 
 of right. 
 
 Southcote s Case, which was in the highest degree favourable 
 to bailors, would, it may be imagined, have definitely conse- 
 crated the action of Detinue as the proper remedy in bailment. 
 But in fact, there were weighty counter-reasons why plain- 
 tiffs, despite its apparent attractions, should turn from it to 
 the newer remedy of Assumpsit, if the latter could possibly be 
 mioulded to meet the facts. For, at this time. Detinue was 
 looked upon as an action of Tort ; and the maxim actio pomalis 
 moritur cum persona would rule it out in many cases.^ More 
 serious still, the defence of ' wager of law ' was, as we have seen,"* 
 open to the defendant in Detinue ; and that defence was rapidly 
 becoming a farce. In fact. Detinue was a discredited form of 
 action by the end of th^ sixteenth century. 
 
 It is hardly surprising, therefore, to find a distinct effort on the 
 part of bailors, at the very commencement of the eighteenth 
 century, to seek a remedy by the new and highly popular 
 action of Assumpsit. The form did not, at first sight, present 
 any serious difficulty. It was easy to allege an imaginary 
 promise by the bailee to return the goods ; a promise which a 
 
 ^ Ante, pp. 55-57. 2 4 Rgp. 83; Cro. Eliz. 815. 
 
 ^ Of course the statute of 1330 (4 Edw. Ill, c. 7) would not help the bailor's 
 executor in the event of the bailor's death ; because that only referred to Trespasses. 
 * Ante, p. 141.
 
 302 A SHORT HISTORY OF ENGLISH LAW 
 
 jury could imply from the mere fact of the bailment. The 
 difficulty came in when the question arose as to the precise nature 
 of the implied promise. Had the bailee promised to return in all 
 events : i.e. to insure ? Or had he merely promised to do his 
 best, to avoid negligence, or what? And, finally, how was the 
 new doctrine of ' valuable consideration ' to be applied to this 
 iniaginary promise? In some kinds of bailments, e.g. bailments 
 in fact made for the benefit of the bailee, it might not be difficult 
 to imply a promise for valuable consideration. But what if the 
 bailment were solely for the benefit of the bailor ? 
 
 It was precisely these questions which gave rise to the well- 
 known judgments in the leading case of Coggs v. Bernard, de- 
 Coggs V. cided in 1703,^ which was an action of Assumpsit, 
 Bernard ^^^ ^^ Detinue; and, though Lord Holt's laudable 
 effort to dispose of them all at once was hardly successful, yet 
 the case is memorable as establishing two points. In the first 
 place, it clearly adopts the doctrine of the implied promise, 
 based (if on nothing else) on the detriment suffered by the 
 plaintiff in parting with his goods. In the second, it decides 
 that the extreme rule of liability laid down in SoidJicote's Case 
 cannot be imported into the new doctrine of contractual bailment. 
 The first conclusion has since been decisively affirmed in the 
 ease of Bainhridge v. Firvistone^ and other decisions. The 
 latter is being slowly applied by the numerous decisions which, 
 from time to time, settle the various rules of a bailee's liability 
 in differing circumstances ; ^ thus fulfilling Lord Holt's modest 
 suggestion, that he had ' stirred these points, which wiser heads 
 in time may settle.'* And thus, in effect, the action on the 
 simple contract once more enlarged its boundaries, by incorporat- 
 ing the important subject of bailments. But it is worthy of 
 notice that, even so late as 1781, Sir William Jones, in his famous 
 Essay on the Law of Bailment, could define ^ a bailment as a 
 * delivery of goods,' not on a promise, but * on a condition.' 
 The difference between a promise and a condition is, of course, 
 familiar to all lawyers. 
 
 But, though the theory of the simple contract may be said to 
 
 1 2 Ld. Raymond, 909. « (1838) 8 A. & E. 743. 
 
 ' These, so far as they have at present gone, will be found set out in the Digest of 
 English Civil Law, edited by the author; see Bk. II, Pt. II (by R. W. Lee, §§ 434, 
 439, 449, 550-554, 562). 
 
 * 2 Ld. Raymond, at p. 920. * 1st edition, p. 1.
 
 CONTRACT AND TORT IN MODERN LAW 303 
 
 have been now complete, another enlargement of the practical 
 ' Breach of scope of the doctrine was effected by the adoption of 
 romise ^j^^ action for breach of promise of marriage. This, 
 again, was, virtually, an incursion into the province of the 
 ecclesiastical courts. Even after the Reformation, the proper 
 remedy for the aggrieved swain was a suit in the spiritual court, 
 causa matrimonii proelocuti. Upon satisfactory proof of the 
 facts, the spiritual tribunal would order the defendant to celebrate 
 the marriage in the face of the Church, and even, if necessary, 
 dissolve a marriage with another person contracted subsequently 
 to the promise. But, in the fatal epoch of the Interregnum, 
 when the Church courts were closed, and the ecclesiastical remedy 
 thereby suspended, disappointed plaintiffs began to resort to 
 the secular tribunals, and to bring the action of Assumpsit, as 
 on an ordinary contract. At the Restoration, there was some 
 little hesitation on the part of the Common Law judges about 
 recognizing the new action ; but at length, in Dickison v. Hol- 
 croft,^ decided in 1674, the Court of King's Bench, despite the 
 strenuous opposition of Chief Justice Vaughan, held the action, 
 even when founded merely on mutual promises, to be good. 
 
 Almost immediately^ after this decision, the new action was 
 threatened from two quarters by the provisions of the Statute of 
 Frauds. Was it founded on an 'agreement made upon con- 
 sideration of marriage,' or was it an 'agreement that is not to be 
 performed within the space of one year from the making thereof ' ? ^ 
 In either case, it was not actionable unless written evidence was 
 forthcoming. The last alternative was not seriously discussed ; 
 but it seemed at first a strong thing to say that an action on a breach 
 of promise to marry was not an ' agreement made upon considera- 
 tion of marriage.' Lord Holt, however, appears to have taken a 
 decided view, that the statute only ' intended agreements to pay 
 marriage portions ' ; ^ and, in effect, after a little hesitation, it was 
 clearly decided that its provisions did not apply to mutual 
 promises to marry."* The passing of Lord Hardwicke's Marriage 
 Act of 1753, which, as part of its poHcy of insisting on the validity 
 only of formal marriages, expressly abolished the ecclesiastical 
 suit causa matrimonii proelocuti,^ rendered the civil remedy of 
 
 1 3 Keb. 148. - 29 Car. II (1677) c. 3, s. 4. 
 
 ' Harrison v. Cage (1698) 1 Ld. Raym. 386. 
 
 * Cork V. Baker (1725) 1 Stra. 34; Horam v. Humfreys (1771) Lofft, 80. 
 
 * 26 Geo. II, c. 33, s. 13.
 
 S04 A SHORT HISTORY OF ENGLISH LAW 
 
 Assumpsit still more popular ; and to the present day it plays 
 a large part in the business of the courts. Among its other pe- 
 culiarities may be noticed the requirement of Lord Denman's 
 Evidence Act, 1869/ that an oral proof of the promise to marry 
 given by the plaintiff, must be supported by independent evidence. 
 
 The passing of the Infants Relief Act, in 1874" may perhaps be 
 said to have restricted, to a certain extent, the scope of simple 
 Contracts Contract. By the common law, the contracts of 
 of Infants q^^ infant were, generally speaking, voidable by 
 him, i.e. he could himself sue on them, but they could 
 not be enforced against him.^ He could even repudiate, on 
 coming of age, contracts of a 'continuing nature,' such as tenan- 
 cies and partnerships, entered into by him during infancy ; but 
 if he wished to do so, he must exercise his right within a reason- 
 able time after attaining his majority.'* On the other hand, there 
 were some contracts, such as contracts to pay a reasonable price 
 for necessaries, and contracts clearly beneficial to his interests, 
 which were binding on an infant, in spite of his nonage ; ^ and a 
 statute of the year 1855, the Infants Settlements Act,^ had en- 
 abled male and female infants to make valid settlements, with 
 the approval of the Court, on their marriage. 
 
 The Infants Relief Act, 1874, however, makes absolutely 
 void all contracts by an infant for repayment of money lent or 
 to be lent, or for goods supplied (other than necessaries), and 
 all accounts stated with infants.^ Presumably, therefore, 
 neither the infant nor the other party can sue on such contracts ; 
 and their effect in passing property is 7iil. But the Act goes 
 further, and makes it impossible for a person to be sued on any 
 ratification made after he comes of age, of a promise given or debt 
 incurred by him while an infant ; even, though there is new con- 
 sideration for the ratification.^ At the same time, the statute 
 is careful not to invalidate such contracts as by the common law 
 were binding on an infant, e.g. contracts for necessaries ; ^ and 
 it has, apparently, no effect on the position of contracts voidable 
 at common law, but not expressly made void by the statute, 
 
 1 32 & .33 Vict. c. 68, s. 2. - 37 & 38 Vict. c. 62. 
 
 ' Warwick v. Bruce (1813) 2 M. & S. 205 (affd. in Exch. Ch.). This rule applied 
 even to contracts to marry (Holt v. Ward (1732) 2 Stra. 937). 
 
 * Edxvards v. Carter [1893] A.C. 360. 
 
 * Walter v. Everard [1891] 2 Q.B. 369. 
 
 « 18 & 19 Vict. c. 43. ' S. 1. 8 S. 2. » S. 1.
 
 CONTRACT AND TORT IN MODERN LAW 305 
 
 except that no alleged ratification of them after majority will 
 have any operation. If the contract would have been binding 
 without ratification, it will still be valid, despite the Act ; if not, 
 no ratification will affect it. It may be noted that, although a loan 
 to an infant to purchase necessaries would be void under the express 
 terms of the Act of 1874, there seems no reason to doubt that the 
 lender, according to the equitable doctrine of subrogation, rec- 
 ognized to apply to such a case as early as 1719,^ would still 
 be able to stand in the shoes of the person supplying the necessa- 
 ries, and sue the infant for so much of the loan as had been actually 
 expended in necessaries. 
 
 Finally on the subject of the scope of simple contract, it may 
 be mentioned that, during the nineteenth century, the courts 
 Married and the legislature between them completed that eman- 
 Women cipation of married women from the medieval theory 
 of contractual incapacity, which, as we have seen,^ had already 
 been broken in upon by the Chancellors of the preceding century. 
 Thus, the cautious doctrine of Hulme v. Tenant,^ which made 
 the bonds or other solemn engagements of a married woman 
 enforceable in Equity against her actual separate estate, was 
 extended, by the middle of the nineteenth century, to her general 
 engagements ; ^ though the Court still refused to apply it to 
 property over which she had merely a general power of appoint- 
 ment.^ And in 1866, a married woman's separate property was 
 made liable for calls on shares held by her.^ Obviously, after 
 this, the medieval theory had become untenable ; but, on the 
 passing of the first Married Women's Property Act, in 1870,^ the 
 only change effected in this direction was to make the separate 
 property of a married woman liable for her ante-nuptial debts, 
 thus relieving her husband from liability on that head. This 
 Act, which greatly extended the separate property of married 
 women^ secured to them their separate earnings,^ all personal 
 property coming to them under intestacy and all sums not ex- 
 ceeding £200 by deed or will ^ and the rents and profits of in- 
 herited land,^° and allowed them to hold, as their separate estate, 
 deposits in savings banks, stock in the funds, shares and other 
 
 1 Marlow v. Pitfield, 1 P. Wms. 558. ^ ^^^^^ p_ 224. 
 
 3 (1778) 1 Bro. C.C. 16. < Murray v. Barlee (1834) 3 My. & K. 209. 
 
 ^ Vaughan v. Vanderstegen (1853) 2 Drew. 165. 
 
 « Matthewman's Case (1866) L.R. 3 Eq. 781. 
 
 7 33 & 34 Vict. c. 93, s. 12. » S. 1. »S. 7. ^°S. 8.
 
 306 A SHORT HISTORY OF ENGLISH LAW 
 
 benefits in companies and benefit societies, and policies of insur- 
 ance.^ It was slightly amended by a statute passed in the year 
 1874,- which re-imposed on the husband a modified liability for 
 both the ante-nuptial contracts and torts of his wife, to the 
 extent of any property which he might have acquired through her. 
 But these cautious advances were quite overshadowed by the 
 passing, in the year 1882, of the present Married Women's 
 Property Act.^ That statute not merely makes all the property 
 of a woman married after 31st December 1882,^ and the property 
 of a woman previously married accruing to her after that date,^ 
 her separate property ; but it completely emancipates her from 
 her medieval incapacities with regard to alienation and contract,® 
 and gives her all legal remedies for the protection of her rightsJ 
 It is true, that her contractual and tortious liabilities can only be 
 enforced against her to the extent of her separate estate ; * 
 and only to that extent in so far as such estate is not ' restrained 
 from anticipation,' ^ in manner previously explained. ^'^ But 
 her personal capacity is complete ; and a narrow construction 
 which restricted it to cases in which she had separate estate 
 at the time of incurring the liability, ^^ has been definitely over- 
 ruled by an amending statute.^- On the other hand, her husband 
 still remains liable, to the extent of property which he may have 
 acquired through her, for his wife's ante-nuptial liabilities (con- 
 tractual and tortious) ; ^^ and his medieval liability for the torts 
 of his wife committed during marriage, has not been removed 
 by the Acts.^^ Apparently, however, his former personal liability 
 for her ante-nuptial torts is abolished by the express provisions 
 on that subject of the principal Act.^^ As for a husband's liability 
 for his wife's contracts entered into during marriage, that stands 
 where it did, viz. on the footing of agency. And so a trades- 
 man who in fact gives credit to the husband or the wife, may 
 find himself unable to recover from either. ^^ 
 
 ^Ss. 2-5, 10. 237 ^ 3g Vict. c. 50. ^ 45 & 46 Vict. c. 75. 
 
 * S. 2. 5 S. 5. 6 s 1, 7 ss. 1 (2), 12. 
 
 » Scott V. Morley (1887) 20 Q.B.D. 120. » S. 19. ^^ Ante, p. 225. 
 
 » PalHser v. Gurney (1887) 19 Q.B.D. 519. 
 
 " Married Women's Property Act, 1893 (56 & 57 Vict. c. 6.3) s. 1. 
 
 " M.W.P. Act, 1882, s. 14. 
 
 ".S'erofca v. Kattenburg (1886) 17 Q.B.D. 177; Earl v. Kingscote [\9QQ] 2 Ch. 
 585. But the liability only continues during the marriage, and is even discharged 
 by a judicial .separation (Cuenod v. Leslie [1900] 1 K.B. 8S0). " S. 14. 
 
 ^* Paquin v. Beauclerk [1906] A.C. 148. (This case went even to the length of 
 deciding that the knowledge of the tradesman is immaterial. Thus, if a tradesman
 
 CONTRACT AND TORT IN MODERN LAW 307 
 
 Apart from the important subject reserved for the end of 
 this chapter, there is not much to record of the Law of Tort 
 during the period under review. The general scope of the action 
 was enlarged by the provision of the Civil Procedure Act of 
 1833/ which enabled the personal representatives of a deceased 
 person to sue in Trespass or Case for any injury committed 
 against the deceased in respect of his real estate within six 
 months before his death, and a similar action to be brought 
 against them in respect of any wrong committed by their deceased 
 against the plaintiff in respect of the latter 's property, real or 
 personal. And it was still further extended by the provisions 
 Accidents ^^ ^^^^ Fatal Accidents Act, 1846,^ commonly known 
 Act as Lord Campbell's Act, which, for the first time in 
 
 English legal history, allowed a civil action to be brought for the 
 death of a human being. The statute declares that the death of 
 the party injured through the act or default of another shall not 
 exonerate that other from any liability which would have rested 
 on him for such act or default had the victim lived ; and the 
 statute applies even to felonious injuries. It is further note- 
 worthy for the fact, that the damages recovered do not form 
 part of the deceased's estate (which would make them liable 
 to his debts), but are to be divided, according to the decision of 
 the jury trying the case, among his nearest relatives, regardless 
 whether such relatives were in fact dependent upon the deceased's 
 exertions, or not.^ But only one action will lie in respect of the 
 same subject-matter; and it must be brought within a year of 
 the deceased's death,^ 
 
 Only one really new action of Tort, viz. the action of Deceit, 
 made its appearance in this period ; if we except the development 
 
 of Civil Conspiracy, to be afterwards dealt with. 
 
 The action of Deceit is an example, like Maintenance 
 and Malicious Prosecution, of the extension to ordinary persons 
 
 gives credit to Mrs. X believing either (1) that she is a single woman, or (2) that she 
 is acting as her husband's agent, he cannot recover from either husband or wife, if, 
 in fact, Mrs. X intended to contract as her husband's agent, but had no authority 
 to do so.) 
 
 ^ 3 & 4 Will. IV, c. 42, s. 2. (The action by the representatives must be brought 
 within one year of their deceased's death ; the action against the representatives 
 within six months from their having taken up the administration.) 
 
 - 9 & 10 Vict. c. 93. (There was a procedural amendment in 1864.) 
 
 'S. 2. 
 
 * S. 3. (It was in connection with the difficulties caused by this rule, that the 
 amending statute of 1864 was passed.)
 
 808 A SHORT HISTORY OF ENGLISH LAW 
 
 of a remedy originally devised for the benefit of the Crown. 
 There was a very old Writ of Deceit at the common law ; ^ but 
 it was confined, in substance, to acts amounting to persona- 
 tion or trickery in legal proceedings. It is clear, however, 
 that liability for deceit, or fraud, was making its way into 
 purely civil actions in the fifteenth century ; for, as we have seen,^ 
 it was frequently alleged, as was also negligence, in early actions 
 of Assumpsit. When the necessity for such allegations dis- 
 appeared with the definite recognition of ' consideration ' as 
 sufficient ground for Assumpsit, the action of Deceit still lingered 
 on in connection with warranties, which it seemed difficult to class 
 as ' contracts executory ' within the meaning of Slade's Case? 
 Even so late as 1778, it could be doubted whether Assumpsit lay 
 for breach of warranty.^ Ultimately, however, these scruples 
 disappeared, and with them the action of Deceit ; until it was 
 revived, with great effect, as a purely tortious action, in 
 the case of Pasley v. Freeman, in 1789.^ In that case, the 
 defendant appears (for his actual words are not given, the 
 case being decided on the pleadings) to have assured the plaintiff, 
 that one Falch was a person who could be trusted to pay for 
 certain goods which the plaintiff was asked to deliver to him on 
 credit. This was, of course, very like a guarantee; but the 
 plaintiffs, unfortunately, could not sue on contract, as they had 
 no written evidence to satisfy the Statute of Frauds.^ So they 
 framed their action in pure tort ; alleging that the defendant 
 'falsely, deceitfully, and fraudulently' asserted and affirmed the 
 solvency of Falch, knowing him to be untrustworthy ; that he 
 thereby caused the plaintiffs to give credit to Falch ; that Falch 
 had failed to pay ; and that the plaintiffs had thereby lost their 
 money. The Court, after much hesitation, allowed the validity 
 of the action, which immediately became immensely popular as a 
 means of evading the Statute of Frauds. In the year 1828, 
 however, the statute known as Lord Tenterden's Act ^ restrained 
 its activities in that direction, by imposing the requirement of 
 written evidence on alleged statements of credit used to found 
 
 1 Old Natura Brevium, ff. 50-52. - Ante, pp. 137-138. 
 
 ' Ante, p. 140. If I warrant a horse as sound at the time of sale, I really promise 
 to pay damages if he turns out to have been unsound at that time. But in form I 
 merely make an assertion. 
 
 * Stuart V. Wilkin.% Doug. 18. ^ 3 T. R. 51. "29 Car. II (1677) c. 3, s. 4. 
 
 ' Statute of Frauds (Amendment) Act, s. 6. (The wording of the section is 
 notoriously peculiar.)
 
 CONTRACT AND TORT IN MODERN LAW 309 
 
 actions; and in Derry v. Peek,^ before alluded to, the House of 
 Lords further clipped its wings by refusing to allow it to be 
 applied to a mere innocent, though untrue, misrepresentation, 
 or, as it was often absurdly called, ' equitable fraud.' Still, 
 despite these limitations, the action of Deceit can still be brought 
 to recover damages suffered as the result of credence placed in a 
 written statement deliberately false and fraudulent, made with 
 intent that the plaintiff should act upon it. 
 
 The action of Defamation, which, as we have seen,^ had 
 definitely become a branch of the Law of Torts at the end of 
 _ . the preceding period, has undergone considerable 
 
 modification in the eighteenth and nineteenth centuries. 
 Towards the close of the former was passed, after much agitation, 
 the famous Libel Act^ connected with the name of Fox; and, 
 though the statute itself is confined to criminal proceedings, it 
 appears to have been extended by analogy to civil actions for 
 defamation.^ As is well known, the dispute was, whether a 
 jury, in a criminal prosecution for libel, was entitled to consider, 
 not merely the question of publication, but the question of the 
 libellous character of the document on which the prosecution was 
 based. The judges stoutly contended that this last was a ques- 
 tion of law, not of fact. Their opponents urged that, apart from 
 statements obviously defamatory, it was impossible to say, with- 
 out knowledge of the surrounding facts, whether a particular 
 statement suggested a particular innuendo, or whether such in- 
 nuendo, if really suggested, was defamatory. The Libel Act of 
 1792^ definitely gave the jury power to find a general verdict of 
 ' guilty ' or ' not guilty,' which would, in effect, entitle them 
 to acquit the accused, even though he had clearly published the 
 document upon which the prosecution was based. 
 
 In the year 1840, in consequence of the well-known proceed- 
 ings connected with the case of Stockdale v. Hansard,^ was passed 
 the Parliamentary Papers Act,^ exempting absolutely from all 
 proceedings for defamation the publishers of any reports, papers, 
 votes, or proceedings ordered by either House of Parliament to 
 be published ; and, in 1868, a decision of the Court ^ extended a 
 
 1 (1889) L.R. 14 App. Ca. 337. 2 ^^^g^ pp_ 144-147. 
 
 3 32 Geo. Ill, c. 60. 
 
 *-Parmiter v. Coupland (1838) 6 M. & W., at p. 108. 
 
 «S. 1. 6(1839) 9 A. & E. 1. ^3 & 4 Vict. c. 9. 
 
 « Wason V. Waller (1868) L.R. 4 Q.B. 73.
 
 310 A SHORT HISTORY OF ENGLISH LAW 
 
 qualified ^ privilege to independent reports of Parliamentary 
 proceedings. Lord Campbell's Act of 1843 - allowed an apology 
 to be pleaded by way of mitigation of damages in any action of 
 defamation ; and statutes of the years 1881 and 1888 did a good 
 deal to mitigate the hardships caused to the newly developing 
 energies of the newspaper press by the survival of medieval rules 
 on the subject of responsibility for defamatory statements. The 
 former of these statutes, the Newspaper Libel Act, 1881,^ though 
 mainly dealing with criminal prosecutions, provided that a fair, 
 accurate, and unmalicious newspaper report of the proceedings 
 at a lawfully convened public meeting should be privileged, 
 notwithstanding that it contained defamatory reflections, unless 
 the editor refused to insert, in his next issue, a reasonable ex- 
 planation by the party reflected upon. The latter statute, the 
 Law of Libel Amendment Act, 1888,^ goes considerably further. 
 It gives absolute protection ^ to fair and accurate reports of judi- 
 cial proceedings, and qualified privilege, on conditions similar 
 to those of the Act of 1881, to similar reports of any meeting of 
 a local government body which is open to press or public,^ or of 
 proceedings before Justices at Quarter Sessions, and to publi- 
 cations of notices and reports issued by Government depart- 
 ments, and published at the request of such departments. But 
 in neither case does the statute authorize the publication of 
 blasphemous or indecent matter. 
 
 Finally, a statute of the year 1891, the Slander of Women 
 Act,'^ enables a woman to recover damages for spoken words 
 imputing to her unchastity, without proof of 'special' damage. 
 This statute points, of course, to one of the great differences 
 between libel (written or printed defamation) and slander (oral 
 defamation). The former always carries a right to damages; 
 whether the plaintiff can prove actual loss or not. Slander 
 (except where it imports certain specific accusations) does not ; 
 unless actual loss can be proved. This proof is, by the nature of 
 things, sometimes very hard to come by ; especially where the 
 accusation is against moral, rather than material, character. 
 
 ^ The difference between an 'absolute' privilege (such as that given by the Act 
 of 1840) and a 'qualified' privilege, is, that the former is complete bar to proceedings, 
 ■while the latter is only a bar if the plaintiff cannot prove (or, in some rare cases, the 
 defendant cannot disprove) actual malice in fact in the publication of the defamatory 
 statement. 
 
 2 G & 7 Vict. c. 96. ' 44 & 45 Vict. c. 60. ■'51 & 52 Vict. c. 64. 
 
 *S. 3. ^S.4. '54 & 55 Vict. c. 51.
 
 CONTRACT AND TORT IN MODERN LAW 311 
 
 The Act of 1891, then, simply places an accusation, made against 
 a woman, of imchastity, in the list of slanders 'actionable yer se,' 
 i.e. without proof of special damage. The statute has redressed 
 a grievance peculiarly hard. Before the virtual suppression of 
 the Church courts such actions as those contemplated by the 
 statute could be brought there ; and the Church would not 
 demand proof of special damage, because an accusation of 
 incontinence was an accusation of sin, which was punishable 
 with penance and fine.^ But incontinence is not a civil offence; 
 and, when the Common Law courts robbed the Church courts 
 of their jurisdiction in defamation, they virtually left women 
 without a remedy for this kind of slander. In theory, such 
 suits could be maintained in the ecclesiastical courts until the 
 year 1855, when they were expressly abolished by statute.^ 
 In practice, they ceased to be common after the beginning of 
 the nineteenth century.^ 
 
 A few very simple words must here be said about the much- 
 disputed subject of the alleged Action of Negligence.' With 
 the exception of the action for * negligently guarding of 
 his fire,' ^ there never has, in form, been such an action 
 in English Law ; and the fact is significant. The individualism 
 or the cautiousness of the Courts in early times declined to 
 admit that one person could be legally liable to another for mere 
 omissions ; unless he had expressly or by implication ' under- 
 taken ' to do the omitted acts. We have seen ^ how this 
 latter exception was, ultimately, made the basis of the law of 
 simple contract. About the same time, the Court of Chancery, 
 especially in the matter of trusts, acted on the higher standard 
 of morality which requires, in certain cases, the performance of 
 positive duties, independently of express contract ; though, of 
 
 ^ The ordinary remedies in an ecclesiastical court for defamation were (1) public 
 retractation, (2) penance (usually remitted), and (3) payment of costs. For the 
 general doctrine of jurisdiction, see Harris v. Buller (1798) 1 Hagg. 463 n. 
 
 2 Ecclesiastical Courts Act (18 & 19 Vict. c. 41). 
 
 ' The last case known to the author is Collis v. Bale (1846) 4 Thornton, Notes of 
 Cases, 540 (in the Arches Court) . They were more numerous in the country districts 
 than in London {Report on Ecclesiastical Courts, 1831, Appx. D, p. 596). 
 
 * This was a very striking exception ; for, by the common law, a man was liable 
 for all damage done by fire which spread from his premises ; whether he caused it to 
 be lit, or it had come from other sources (Tubervil v. Stamp (1697) 1 Salk. 13) . But 
 a statute of 1774 (14 Geo. Ill, c. 78, s. 86), still in force, exempts from liability the 
 person on whose premises a fire may ' accidentally begin. ' Blackstone gives a curious 
 version of the statute {Comm. I, 419). 
 
 ^ Ante, pp. 137, 138. 
 
 Negligence , . ^ , ^
 
 312 A SHORT HISTORY OF ENGLISH LAW 
 
 course, a trust, voluntarily undertaken, is not unlike a contract. 
 Once more, criminal law, slowly and cautiously, began to hold 
 people responsible, in certain exceptional cases, for mere non- 
 feasance.^ But the Common Law courts remained content with 
 repressing active wrong-doing ; and, in all their long record, 
 there is hardly a single case of Tort founded on mere omissions, 
 before the end of the eighteenth century,^ unless we count the 
 well known, but really unimportant, decision in Ashby v. White,^ 
 as an exception. That decision, which was certainly not free 
 from party prejudice,'* laid it down, that when an individual was 
 entitled, by statute or common law, to demand of a public offi- 
 cial the performance of a ministerial duty, wilful refusal by the 
 official to perform the duty is a ground of action by the individual, 
 though no special damage is proved. x\pparently very sweeping 
 in its scope, the decision has really been barren of results ; only 
 some eight subsequent decisions involving the principle laid 
 down being reported.^ 
 
 With the appearance of the nineteenth century, however, the 
 introduction of new methods of transit, new methods of manufac- 
 ture, and other novel conditions, compelled a revision of the laissez- 
 faire attitude of the Courts ; and gradually they began to hold 
 people responsible in Tort for mere omissions, where such persons 
 had placed themselves in positions inviting confidence, or in- 
 duced others to handle dangerous materials, or take part in 
 dangerous processes. But the limits of tortious responsibility 
 for mere omissions are still extremely narrow ; ^ and by far the 
 greater part of the vast number of cases under the head of ' neg- 
 ligence ' in textbooks and Digests, will be found to be cases of 
 contract and trust. 
 
 Beyond all question, however, the most important develop- 
 ment of the Law of Tort in this period is connected with the 
 
 ^ Examples are to be found in the early Poor Law statutes ; and the Courts, in- 
 dependently of statute, began to hold 'wilful neglect' as equivalent to act in homicide 
 cases. 
 
 - L.Q.R. xxix, pp. 159-166, by the author. 
 
 ' (170;3) 2 Ld. Raym. 938. 
 
 '' The facts were, that a returning officer wrongfully refused to record the plaintiff's 
 properly tendered vote at a Parliamentary election. 
 
 * These are collected in Digest of English Civil Law, § 1019. For actions in 
 respect of special damage caused by failure to perform statutory duties, see § 726 of 
 the same work. 
 
 * They are set out, with tolerable completeness, in the Digest of English Civil Law, 
 §§ 727-734 (by J. C. Miles). At the end of Bk. II will be found a brief Excursus on 
 the subject.
 
 CONTRACT AND TORT IN MODERN LAW 313 
 
 attitude of the State, especially as represented by the Courts, 
 Labour towards artizaiis and labour organizations during 
 
 tionsand'the the last century. For reasons which will shortly 
 ^^^ appear, it is impossible, in dealing with such a 
 
 subject, to avoid including, not merely the Law of Contract 
 and Tort, but Criminal Law; for the three branches are in- 
 extricably mixed up together. Unhappily, the subject is one 
 which has aroused much feeling; and nothing beyond a bare 
 statement of the facts would be advisable. 
 
 The system of servile or forced labour which had existed 
 in England from the time of the Norman Conquest until the 
 middle of the fourteenth century, was definitely broken up by 
 the occurrence of that cardinal event in medieval history, the 
 visitations of the plague known as the ' Black Death,' followed 
 as they were, throughout almost the whole of Western Europe, 
 by armed risings of the peasantry. The latter, whose value 
 had risen to a premium, owing to the frightful ravages of the 
 Plague, burst the bonds of the manorial system, and refused to 
 work except for high wages. 
 
 In England, the answer of the State to what was, in effect, 
 a social and political revolution of the first magnitude, was 
 The statutes Comprised in a series of ordinances known as the 
 of Labourers g^atutes of Labourers.^ These, in effect, set up 
 what may be called a system of State Regulation, to replace 
 the old customary system of feudal lordship. The chief features 
 of the new system were — (1) the fixing of the wages of each 
 class of servant by statute,^ (2) the compulsion of every able- 
 bodied man and woman under the age of sixty, not being a 
 merchant or skilled artificer,^ nor living on his own land, to 
 serve any one who might require his or her services at the ac- 
 customed or statutory rate of wages,^ (3) the placing of the 
 enforcement of these provisions, with all their attendant regula- 
 tions, in the hands of the Justices of the Peace,^ thus making 
 
 123 Edw. Ill (1349) cc. 1-8; 25 Edw. Ill (1351) st. II; 34 Edw. Ill (1360) cc. 
 9-11. 
 
 2 25 Edw. Ill (1351) St. II, c. 1 ; 11 Hen. VII (1494) c. 22, ss. 1-4 ; 6 Hen. VIII 
 (1514) c. 3, ss. 1-3. 
 
 ' The language of the statute of 1351 shows that this exception must have been 
 very strictly construed. Probably only master-craftsmen were exempted. At 
 any rate, carpenters, masons, tilers, and plasterers were included in the system of 
 Btatutory wages. (25 Edw. Ill (1351) st. II, c. 3.) 
 
 ^23 Edw. Ill (1349) c. 1. ^25 Edw. Ill (1351) st. II, c. 7.
 
 314 A SHORT HISTORY OF ENGLISH LAW 
 
 the law of master and servant, in effect, a branch of the criminal 
 law as summarily administered. This system was substantially 
 modified in the middle of the sixteenth eentur;s'-, by the Eliza- 
 bethan statute which replaced the statutory regulation of 
 wages by a periodical assessment by the Justices in Quarter 
 Sessions,^ and introduced a carefully regulated system of ap- 
 prenticeship for skilled trades.^ But the essential features 
 of the sj'stem were not altered ; and it was actually a criminal 
 offence under the statute of Elizabeth,^ as it had been under 
 the statute of Edward III,^ for a master to give, or a servant 
 to receive, more than the statutory or assessed rate of wage. 
 
 There seems little reason to suppose that, after the first 
 excitement of a depleted labour market had passed away, the 
 system of State Regulation was, as a whole, unpopular with 
 masters or servants. It comprised provisions regarding prices ^ 
 which, if they gave more protection to the rich than the poor, 
 were not without benefit to the poor, and rules as to meals and 
 hours of work, which were certainly a substantial protection 
 to the labourer.^ In the days when the Law of Contract was 
 in its infancy, and when competition was considered to be 
 unfair, it was deemed inevitable that some authority should 
 control the relationship of employer and employed ; and, after 
 the breakdown of one status-system, it was natural to set up 
 another. But the regulation of the labour system by the State 
 implied, of course, that any attempt to infringe that system, 
 was an offence against the State ; and especially any concerted 
 attempt to throw the system out of gear. Accordingly, we 
 are not surprised to find that, in addition to the penalties pre- 
 scribed by the earlier statutes for individual offences, a statute 
 of the year 1548 makes it an offence, punishable with much 
 heavier penalties, for the sellers of victuals to ' conspire ' to 
 raise prices, or for any artificers, workmen, or labourers to 
 * conspire, covenant, or promise together, or make any oaths, 
 that they shall not make or do their works but at a certain 
 price or rate, or shall not enterprize or take upon them to finish 
 
 1 5 Eliz. (1562) c. 4, es. 14-17. ^ /^^-^^^ gg. 25-37. ' Ibid., ss. 18-19. 
 
 "23 Edw. Ill (1349) cc. 4, 5, 8. 
 
 6 23 Edw. Ill (1349) c. 6 (victuals); 25 Edw. Ill (1350) c. 4 (shoes, &c.). 
 
 6 11 Hen. VII (1494) c. 22, s. 4 ; 6 Hen. VIII (1514) c. 3, s. 4; 5 Eliz. (1562) 
 c. 4, 8. 9. (In spite of the fact that these provisions arc generally couched in re- 
 etrictive language.)
 
 CONTRACT AND TORT IN MODERN LAW 315 
 
 what another hath begun, or shall do but a certain work in a 
 day, or shall not work but at certain hours and times.' ^ This 
 statute, however, aims^ at breaking down the medieval system 
 of close corporate towns, by forbidding any molestation of 
 * foreign,' i.e. outside, labourers. 
 
 But the system of State Regulation set up in the fourteenth 
 century, good or bad, broke down hopelessly before the in- 
 dustrial revolution of the later eighteenth century, and the new 
 factory system which it rendered inevitable. Most of the old 
 The Factory skilled trades, with their elaborate apprenticeship 
 
 ystem organizations, rapidly became relics of a bye-gone 
 
 day, and their organizations mere social clubs or benefit societies. 
 The vast crowds of artizans drawn into the manufacturing 
 towns were, on the other hand, wholly unorganized, and fluc- 
 tuated between reckless prosperity and sudden destitution. 
 Prices, and, consequently, wages, were continually disturbed 
 by the events of the Napoleonic wars, and by bad harvests. 
 When times were good, the workmen could make their own 
 terms; though most of them were far too unused to town life 
 to make them to advantage. When times were bad, or the 
 labour market overstocked, employers had it their own way, 
 and were not always very scrupulous in turning their advantages 
 to the best account. 
 
 It is by no means certain, that the workmen were not the 
 last of the parties concerned to abandon the old system.^ But 
 Trade it ultimately became clear that a continuance of it 
 
 °^°°^ was impossible. Naturally, the workmen, in course 
 
 of time, were led to form organizations of their own ; and thus 
 Trade Unions, if they had ever really died out after the passing 
 of the statute of 1548, revived again with great vigour. Equally 
 naturally, the employers, who regarded such organizations as 
 dangerous to their interests, appealed to the State for protec- 
 tion ; and the State, scared by the excesses of the French Revo- 
 lution, replied with a vigorous series of Combination Laws,^ 
 intended to stamp out the new organizations. It is not neces- 
 
 1 2 & 3 Edw. VI (1548) c. 15, s. 1. "^ Ibid., s. 4. 
 
 ^ There is a petition of labourers as late as 1796, asking for legislative regulation 
 of wages and prices. (Cunningham, op. cit. II, 498.) 
 
 * The most important were 39 Geo. Ill (1799) c. 81, repealed and replaced in the 
 following year by the 39 and 40 Geo. Ill (1800) c. 106. But there had been many 
 earlier.
 
 316 A SHORT HISTORY OF ENGLISH LAW 
 
 sary to go into particulars of these statutes, which were of 
 great severity. It is sufficient to say that, instead of allay- 
 ing, they merely inflamed the passions of masters and servants, 
 who resorted to extreme and even violent measures against one 
 another, and against such of their competitors as disagreed with 
 their methods. In particular, the method of ' boycott ' was 
 used, with cruel effect, both by masters and men ; ^ and the 
 * black list ' was a familiar document both in employers' count- 
 ing houses and workmen's clubs. 
 
 In the year 1824, chiefly owing to the labours of Joseph Ilume 
 and Francis Place, aided by the favourable attitude of Huskis- 
 son and Sir Robert Peel, members of Lord Liverpool's Govern- 
 ment, but opposed to the repressive policy of Eldon 
 the Combi- and Sidmouth, a great victory in the cause of labour 
 nation aws ^^^^^ achieved by the passing of the Act for repealing 
 the Combination Laws. The statute formally wiped out of 
 existence the repressive code which had grown up since 1548,'^ 
 and expressly enacted,^ that no workman should be ' subject 
 or liable to any indictment or prosecution for conspiracy, or to 
 any other criminal information or punishment whatever, wider 
 the common or statute laiv,' for ' entering into any combination 
 to obtain an advance, or to fix the rate of wages, or to lessen 
 or alter the hours or duration of the time of working, or to 
 decrease the quantity of work, or to induce another to depart 
 from his service before the end of the time or term for which 
 he is hired, or to quit or return to his work before the same shall 
 be finished, or, not being hired, to refuse to enter into work or 
 employment, or to regulate the mode of carrying on any manu- 
 facture, trade, or business, or the management thereof.' 
 
 It has been necessary to specify the terms of this enactment 
 at length, partly because they show, beyond question, that the 
 familiar objects and methods of modern Trade Unionism, 
 on its militant side, were equally familiar when the Act of 1824 
 was passed, and partly because of an event which immediately 
 happened, and which is apt to puzzle the student. 
 
 It appears that even such champions of the workmen's cause 
 as Place thought that Trade Unions were simply the reflex 
 
 ' Francis Place, though a thoroughly capable and responsible workman, was boy- 
 cotted by the master breeches-makers of London for taking part in a strike, and 
 nearly starved in consequence. He was saved by the intercession of his wife (.Life 
 of Francis Place (Wallas), p. 9). ^ 5 Geo. IV (1824) c. 95, s. 1. = Ibid., a. 2.
 
 CONTRACT AND TORT IN MODERN LAW 317 
 
 action of the Combination Laws, and that, with the repeal of 
 those laws, they too would disappear. The event completely 
 falsified their expectations. Times were good in 1824 ; and 
 the Trade Unions, released from their legal shackles, made use 
 of the fact to claim higher wages. Strikes followed ; the manu- 
 facturers, and the wealthy classes generally, became alarmed ; 
 the Government, divided in opinion, inclined in favour of strong 
 . ^ , _ measures. In the session of 1825, a new Bill, to 
 
 Act 01 1025 , , . 1 « 1 
 
 be substituted for the Act of 1824, was introduced, 
 with a view of reviving the old restrictions. But it was fought 
 gallantly by the friends of labour ; clause after clause dis- 
 appeared ; the new Bill began to look more and more like the 
 measure it was intended to replace. Finally, it appeared on 
 the statvite-book in such a form that no eye but that of an 
 expert could tell wherein it differed from its predecessor. But 
 that difference proved, none the less, vital. For whereas the 
 Act of 1824 not only repealed the Combination statutes, but 
 went on expressly to exempt from punishment, either under the 
 common or statute law, all combinations for the purposes named, 
 the Act of 1825,^ while continuing the repeal of the statute law,- 
 followed with the creation of a fresh series of offences for the 
 exercise of force in achieving the objects of combination,^ and 
 only then provided that, for acts of much less gravity, there 
 should be no prosecution or penalty, ' any law or statute to 
 the contrary notwithstanding.' ^ In spite of this ominous 
 modification, however, there can be little doubt that the legis- 
 lation of 1824-5 radically altered the position of the labourer, 
 by lifting him from a status to a contract system. But it should 
 be carefully noted, that neither the Act of 1824, nor that of 
 1825, repealed that part of the old system which referred the 
 decision of all disputes between master and servant, relative 
 to the contract of service, to the Justices of the Peace — in 
 other words, brought them under the criminal law. 
 
 The next event of first-rate importance in the history of our 
 topic, is the appearance and rapid development of the doctrine 
 ' Common ®^ ' common employment,' viz. that, in the absence 
 Employ- of statutory provision or personal negligence, an 
 employer is not responsible to his workman for injuries 
 caused to him (the workman) by the act or neglect of a fellow- 
 
 ' 6 Geo. IV, c. 129. * S. 2. ^ S. 3. « S. 4.
 
 318 A SHORT HISTORY OF ENGLISH LAW 
 
 employee in the course of the employer's business. This doc- 
 trine is universally admitted to date from the decision in Priestly 
 v. Fowler,^ in the year 1837. In that case, a butcher's man 
 sought to recover against his employer for injuries caused by 
 the over-loading by a fellow-workman of a van upon which the 
 plaintiff was travelling in the course of his duty. Very wisely, 
 the plaintiff's advisers avoided resting his case on any implied 
 term in the contract of service ; fearing that they might be 
 referred by the Court to the magistrates. They laid it as a 
 simple claim in Tort, based on the maxim : respondeat superior. 
 There can be no doubt that, had the plaintiff been a mere stranger 
 who had been run over by the negligent driving of the defen- 
 dant's servant, the defendant would have been liable. But the 
 Court of Exchequer held that he was not liable to the plaintiff, 
 his workman. It is a little difficult to follow Lord Abinger's 
 reasoning ; for his lordship rests the decision of the Court ^ 
 on the ground of the inconvenience which would follow if a 
 plaintiff in a similar case were to be able to sue on the negli- 
 gence of the coach-maker, the harness-maker, the servants 
 at an inn at which the plaintiff might be called upon to stay 
 in the course of his work, the upholsterers who made the bed, 
 etc. The short answer to these objections is, that none of 
 such persons are servants of the employer. But the some- 
 what later cases which adopted the decision in Priestly v. Fowler, 
 confined it strictly to common employment,^ which, however, 
 included persons in such very different positions as a common 
 labourer and an overseer, or even a mining engineer or manager.* 
 The ground usually adopted was that chosen by Alderson, 
 B., in Hutchinson v. York, &c. Railicay,° viz. that the plaintiff 
 must be held to have consented to run the risk of negligence by a 
 fellow-servant. There were certain conditions of exemption, e.g. 
 that the employer should have done his best to employ proper 
 servants, and not have exposed the plaintift* to unreasonable 
 risks. Nevertheless, the working of the doctrine of 'common 
 employment' deprived the artizan classes of most of the benefits 
 of the Fatal Accidents Act, 1846,^ and continued to work great 
 
 13 M. & w. 1. "^-i M. & w., at p. 6. 
 
 ^Hutchinson v. York, etc., Railway (1850) 5 Exch. 351 ; Bartonshill Coal Co. v. 
 Reid (1858) 3 Macq. 326 (extending the doctrine to Scotland). 
 
 ♦Sec last case, and Wilson v. Merry (1868) L.R. 1 H.L. (Sc.) 326. 
 ' Ubi sup., « Ante, pp. 307, 308.
 
 CONTRACT AND TORT IN MODERN LAW 319 
 
 hardship, until its partial modification by the passing, by Mr. 
 Gladstone's Government, of the Employers Liability Act, 1880.^ 
 It still applies to the injury caused by the negligence of an 
 ordinary adult fellow-servant of the plaintiff, not due to the 
 directions of the employer, or to the defective working of a 
 railway. But its importance has been greatly lessened by the 
 passing of the Workmen's Compensation Acts, to be hereafter 
 referred to.^ 
 
 Almost concurrently with the definite adoption of the doc- 
 trine of 'common employment,' another danger threatened 
 the aspirations of the working-classes, especially 
 Law ' Con- those expressed by the labour organizations. These 
 spiracy bodies had prospered greatly since the acquisition 
 
 of the modified protection given to them by the repeal of the 
 Combination Laws, and were now, in many cases, in a highly 
 flourishing condition. In addition to their earlier objects, 
 they had adopted a system, or, rather, various systems, of 
 provision for old age, sickness, loss of employment, and other 
 contingencies. Sometimes these benefits were secured by 
 the agency of a society exclusively concerned with them, and 
 known, generally, as a 'Friendly Society.' In other cases, 
 the older type of organization, known as a Trade Union, origi- 
 nally formed principally to protect and assist its members in 
 trade disputes, had extended its objects, and included the 
 functions of a Friendly Society. Moreover, about the year 
 1850, a very formidable movement was started for the federa- 
 tion of the numerous local Trade Unions in a particular trade, 
 which had hitherto existed independently throughout the 
 kingdom. One of the earliest and most important results was 
 the formation of the great Amalgamated Society of Engineers. 
 Thus greatly strengthened, both in funds and membership, the 
 new bodies felt their power, and used it. The capitalist classes, 
 equally naturally, felt alarmed ; and prosecutions followed. 
 
 But it was a little difficult for the prosecutors to know how 
 to proceed. It was generally supposed, that the statute of 
 1825 had repealed all the old laws against labour organiza- 
 tions, and that, so long as Trade Unions kept within the terms 
 of that Act, they were safe. Baron Rolfe, in a case tried in 
 1847,^ had actually ruled to that effect. Accordingly, one of 
 
 M3 & 44 Vict. c. 42. ^ p^^i^ pp. 329-331. ' Reg. v. Selsby (1847) 5 Cox, 495.
 
 320 A SHORT HISTORY OF ENGLISH LAW 
 
 the prosecutions of 1851^ was especially based on the third 
 section of the Act of 1825, which forbade, on pain of three 
 months' hard labour, any attempt to force, by violence, threats, 
 or intimidation, any workman to leave his employment, return 
 his work unfinished, or refuse to enter any employment, or to 
 join or remain a member of any society, or any employer to 
 alter his methods of carrying on his business. But it is to be 
 observed, that the defendants were charged, not with an actual 
 breach of the section, but merely with a conspiracy to cause a 
 breach of it ; the Court holding, in spite of an express decision 
 to the contrary by Lord Ellenborough, forty years before,^ 
 that an agreement or combination to procure the commission 
 of a statutory offence, is itself a criminal conspiracy, punishable 
 by fine and imprisonment, at the common law. The prosecu- 
 tions of 1851 went further still, and procured the ruling of 
 Mr. Justice Erle,^ to the effect that, quite independently of 
 statute, or the use of illegal means,^ a combination of workmen 
 for the purpose of 'obstructing' an employer in his business, 
 and so of forcing him to agree to a certain schedule of prices, 
 by 'persuading' 'free men '^ to leave the employer's service, 
 w^ould be 'a violation in point of law.' Thus was born the 
 doctrine of ' common law conspiracy ' in its criminal aspect. And 
 now the vital importance of the change of language between 
 1824 and 1825'' became apparent; for it would have been prac- 
 tically impossible for Mr. Justice Erie to have delivered his 
 celebrated ruling in face of the language of the statute of 1824. 
 That ruling, in effect, declared, that any combination to obtain 
 even a perfectly lawful object, e.g. a rise of wages or prices, 
 by means of a strike, was a criminal offence at the common law. 
 For such a doctrine it is difficult to find historical warrant. 
 Every offence against the State Regulation systems of the 
 fourteenth and sixteenth centuries had been carefully created 
 and defined by statute ; and, with the repeal of those statutes, 
 
 ^ R. V. Rowlands. (This part of the case will be found at pp. 466-495 of 5 Cox.) 
 
 ^ R. V. Turner (1811) 15 East, 228. 
 
 ^ R. V. Rowlands (1851) 5 Cox, at p. 462. See also a similar ruling of the same 
 learned judge in R. v. Duffield (1851) ibid., at p. 431, where the object was to raise 
 wages. 
 
 '' ' There are no threats or intimidations supposed to have been used towards the 
 ■worlcmcn' (Erie, J., at p. 4.31). 
 
 * By 'free men' the learned judge apparently meant men not under a legally 
 binding engagement (see p. 431). 
 
 ^ Ante, p. 317.
 
 CONTRACT AND TORT IN MODERN LAW 321 
 
 had fallen to the ground. The common law offence known as 
 Conspiracy (which was itself founded on statute ^) was directed 
 to a totally different class of offences, viz. the procuring of 
 false indictments. In the Elizabethan books on criminal law, 
 the cases of Conspiracy are entirely confined to this latter 
 type ; and there is no suggestion that it includes strikes or 
 boycotts.^ Indeed, it is a little difficult to see how such a 
 crime could have existed, unless we suppose it to have been 
 reserved exclusively for trial by the King's judges ; for the 
 jurisdiction of the Justices of the Peace was entirely statutory. 
 It is true that the English Courts refuse, and have long refused, 
 to enforce contracts made ' in restraint of trade ' ; but, as Lord 
 Halsbury carefully pointed out in a case to be afterwards more 
 particularly alluded to,^ such contracts were never 'unlawful,' 
 in the sense that they were 'contrary to law,' i.e. punishable 
 either criminally or civilly. It is true also that certain ancient 
 offences against the medieval system of markets, e.g. 'forestal- 
 ling,' 'regrating,' and 'ingrossing' still lingered on the statute 
 book. But from these it was a long step to the formidable 
 doctrine of criminal conspiracy. 
 
 As might have been expected, this new doctrine caused great 
 ill-feeling among the working classes ; and the next few years 
 Legislation after 1851 were filled with strikes. The Trade 
 of 1867 Unions throve on the resentment thus created ; 
 and it is to be feared that the officials of some of them, unduly 
 exalted, were guilty of grave excesses and crimes. But the 
 Royal Commission which sat in 1867, with statutory powers,* 
 was totally unable to discover the existence of any general 
 criminal features in Trades Unionism ; and the action of Lord 
 Derby's Government, in bringing in a Bill to revive the neglected 
 jurisdiction of the magistrates in dealing with questions arising 
 out of the contract of service, was deeply resented. Never- 
 theless, it passed into law as the Master and Servant Act, 1867,^ 
 and remained in force till 1875.^ The net result of it was, 
 that breaches of contract, which, by anyone but a workman, 
 would have been matter for a civil action, were punishable by 
 
 1 28 Edw. I (1300) c. 10 ; 33 Edw. I (1304) st. II. 
 
 ^ See Fitzherbert, L'Office, &c. : Lambarde, Eirenarcha, sub tit. ' Conspiracy.' 
 
 ^ Mogul Steamship Co. v. McGregor [1892] A.C., at p. 39. 
 
 4 30 & 31 Vict. cc. 8, 74. ^ Ibid., c. 141. 
 
 * Conspiracy and Protection of Property Act, 1875, s. 17.
 
 3^22 A SHORT HISTORY OF ENGLISH LAW 
 
 fine and imprisonment. It is true that the civil rights of the 
 parties were not taken away,^ and that the section empowering 
 the magistrates to inflict fine and imprisonment might conceiv- 
 ably have been applied to an employer ; ^ but it was so worded 
 as to render it doubtful if that was the intention of its framers, 
 and, in any case, the alternative of a fine (limited to £20) always 
 aftorded a door of escape to the capitalist. ^Meanwhile, the 
 new doctrine of 'common law conspiracy' had been quietly 
 incorporated into statute law by that section of the great Of- 
 fences against the Person Act of 1861,^ which speaks of 'any 
 unlawful combination or conspiracy to raise the rate of wages.' 
 But the tide soon turned in favour of the workmen. In 
 the year 1871, Mr. Gladstone's Government introduced and 
 The Trade passed the first Trade Union Act, by far the most 
 Union cts important victory up to that time achieved by 
 the champions of labour organizations. By that statute,'* 
 it was expressly provided, that the purposes of a Trade Union 
 should not, merely because they were ' in restraint of trade,' be 
 deemed criminal, nor should they render void any agreement 
 or trust. But the Act went further ; and provided that any 
 Trade Union which chose to register itself might vest its prop- 
 erty in trustees,^ who should be capable of suing and being 
 sued on all matters touching the ' property, right, or claim 
 to property,' of the Union. Moreover, the treasurer and other 
 officials of a registered Trade Union were compelled to account ; ® 
 and persons embezzling or improperly obtaining possession 
 of the funds or other movable property of a registered Union, 
 were made liable to criminal prosecution.'' This was an enor- 
 mous benefit to the Unions, which, hitherto,^ as bodies not 
 recognized, or even suspect, by law, had no remedy for crimes 
 committed at their expense. On the other hand, the Act of 
 1871 is careful to deny a legal personality to Trade Unions, 
 by enacting that no Union may register as a company under the 
 Companies Acts,^ and that no legal proceeding may be insti- 
 tuted to enforce any agreement entered into for the direct pur- 
 
 1 Master and Servant Act, 1867, s. 18. - Ibid., 9. 
 
 * 24 & 25 Vict. c. 100, s. 41. 
 
 ••34 & .35 Vict. c. 31, ss. 2, 3. ^g g eg n - g_ 12. 
 
 * A ver>- partial and inadequate protection had been given by the Trades Unions 
 Funds Protection Act, of the year 1869 (32 & 33 Vict. c. 61). 
 
 9 S. 5 (.3).
 
 CONTRACT AND TORT IX MODERN LAW 323 
 
 pose of carrying out any of the objects of the Union, or any 
 bond for securing performance of such agreement.^ 
 
 It may seem a little surprising, that the passing of such a 
 statute as that of 1S71 should have been almost immediately 
 followed by a fresh appearance of the doctrine of ' common 
 law conspiracy ' ; but such in fact was the case. For, in the 
 celebrated trial of R. v. Buiui,- !Mr. Justice Brett (afterwards 
 Lord Esher) directed the jury that (1) an agreement of workmen 
 to ' control the will ' of masters, and (2) an agreement to in- 
 duce men to break their contracts with a view to secure the 
 re-instatement of a fellow-workman, were common law criminal 
 conspiracies, even though no violence was used, and, further, 
 that the former, at least, was ' molestation and obstruction ' 
 within the meaning of the Criminal Law Amendment Act, 1871,^ 
 passed concurrently with the Trade Union Act. This con- 
 struction seemed to the workmen to be simple defiance of the 
 plain intention of the legislature ; and they did not rest till 
 they had persuaded Mr. Disraeli's Government to pass the 
 Conspiracy and Protection of Property Act, 1875. That 
 ConsDiracy important statute, repealing the Master and Ser- 
 and Pro- vant Act, 1867, the Criminal Law Amendment 
 Property Act, 1871, and the whole of the old legislation ' mak- 
 ing breaches of contract criminal,' ^ expressly enacted 
 that ' an agreement or combination by two or more persons to do 
 or procure to be done any act in contemplation or furtherance 
 of a trade dispute ' shovdd ' not be indictable as a conspiracy 
 if such act committed by one person would not be punishable 
 as a crime ' ; unless such combination were expressly made a 
 conspiracy by statute.^ ^Moreover, to restrain still further 
 the doctrine of ' conspiracy to commit a crime,' the Act pro- 
 vided,^ that nothing in this connection should be deemed a 
 'crime ' which was not punishable, at least as an alternative, 
 with imprisonment, and that when the ' crime ' was only pun- 
 ishable on summary conviction, the maximum sentence on 
 the conspirator should be three months' imprisonment. Finally, 
 and this was, perhaps, the most highly-prized victory of all, 
 the statute, though making such acts as the use of force or 
 
 1 S. 4. 2 (ig72) 12 Cox, 316. ^ 34 & 35 Vict. c. 32, s. 1 (3). 
 
 * The few breaches, invohnng danger to life or property, which are still criminal, 
 ■were provided for bv new legislation in ss. 4-7 of the Act. 
 s S. 3. « Ibid.
 
 324 A SHORT HISTORY OF ENGLISH LAW 
 
 threats, ' shadowing,' ' rattening,' ' watching and besetting.' 
 and bullying, punishable on summary conviction, expressly 
 provides ^ that * attending at or near a house where a person 
 resides, or works, or carries on business, or happens to be . . . 
 in order merely to obtain or communicate imformation, shall 
 not be deemed a watching or besetting within the meaning 
 of the section.' Thus the right of ' peaceful picketing ' was 
 definitely established by statute. 
 
 After 1875 we hear nothing more of the * criminal conspiracy 
 at the common law ' ; but the workmen were much mistaken if 
 they thought that the right of combination was threatened 
 with no further dangers. The next development seems to 
 have been suggested by the words of Mr. Justice Erie, in the 
 case of Reg. v. Rowlands,^ previously referred to ; and it is de- 
 cidedly interesting. 
 
 It appears that, even by the common law, there was a very 
 ancient action for depriving a master of his servant. This 
 was natural in days when a servant was regarded as his master's 
 property. Moreover, the Statutes of Labourers would, ob- 
 viously, have been rendered futile, if employers, in the fierce 
 competition for labourers produced by the ravages of the Plague, 
 had been allowed to draw away their neighbour's servants. 
 This fact was fully recognized ; and Fitzherbert, in his well- 
 known book, gives ^ the form of writ devised as a remedy for 
 employers whose servants were ' seduced,' or enticed away, 
 by rivals, or even merely ' retained ' by third parties after 
 unlawfully leaving their former masters. 
 
 This writ was not highly popular for the purposes for which 
 it was immediately invented ; but it became the parent of 
 Deprivation other more or less remotely analogous actions. From 
 of Services -^ ^^.^ derived the action for debauching a woman, 
 now technically known as the ' action for seduction,' ■* the action 
 for ' stealing a wife,' or for 'loss of consortium,' '" and the action 
 
 1 S. 7 ad fin- ' (1851) 5 Cox, at p. 462. 
 
 ^Natura Brevium, ff. 167 B-168 B. 
 
 * This application of the writ is as old as 1704 {Riissell v. Come, 2 Ld. Raymond, 
 1031) ; and to the form of action the remedy for seduction owes most of its un- 
 fortunate peculiarities. 
 
 '•' Winsmore v. Greenbank (1745) Willes, 547. It is probable, regard being had 
 ■to the decision in R. v. Jackson [1891] 1 Q.B. 671, that this action now only lies 
 where the wife has been involuntarily injured by the defendant, e.g. by negligent 
 driving. But, in such cases, it is common enough.
 
 CONTRACT AND TORT IN MODERN LAW 325 
 
 for harbouring a servant who has improperly left his employer's 
 service.^ But, so far as the writer is aware, it was never used 
 by an employer against workmen before the middle of the 
 nineteenth century. 
 
 It so happened, however, that, in the year 1853, attention 
 had been called to the existence of the old remedy by the well- 
 known case of Lumley v. Gye,^ in which an opera impresario 
 had successfully maintained an action against a rival who 
 had knowingly engaged a singer while she was under exclusive 
 engagement to sing for the plaintiff. The decision provoked 
 much difference of opinion; and it obviously extended the 
 action for deprivation of services beyond the scope originally 
 contemplated. Nevertheless, it was followed in the year 1881 
 in the case of Bowen v. Hall;^ and still more recent decisions 
 have shown a tendency to extend it to wilful procurement of 
 breaches of all kinds of contracts.^ This is really a wide de- 
 parture from the older theory of contract, which strictl}^ con- 
 fined actions on a contract to the parties themselves.^ But 
 that objection is met by the argument that the new action is 
 not for breach of the contract, but for procuring a breach of 
 contract — i.e. an independent tort, which treats the contract, 
 not as the cause, but as the mere subject-matter of the offence. 
 
 Of the boundless horizon opened up by this new kind of 
 action, it is not possible here to speak. The point in the narra- 
 tive is, that it was taken up by the employers as yet another 
 weapon against the claims of labour organizations. 
 
 Accordingly, in the case of Temperton v. Russell,^ the plaintiff, 
 a builder at Hull, sued the members of the joint committee 
 ' CivU Con- of three Trade Unions for damages for inducing, 
 spiracy ' under threat of a strike, various tradesmen, who 
 had contracted to supply him with goods, to break their con- 
 tracts, and, further, for damages for inducing such persons 
 not to enter into contracts with him (the plaintiff). The cause 
 of the dispute was the alleged non-observance by the plaintiff of 
 certain trade rules- laid down by the Unions for their members. 
 
 With regard to the first claim, there was, after the recent 
 decisions in Lumley v. Gye and Bowen v. Hall,^ very little hope 
 
 1 Blake v. Lanyon (1795) 6 T.R. 221. 2 2 E. & B. 224. ' 6 Q. B. D. 333. 
 
 ^National Phonograph Co. v. Ball [1908] 1 Ch. 335. 
 
 <■ Tweddle v. Atkinson (1861) 1 B. & S. 393. 
 
 ';[1893] 1 Q.B. 715 (C.A.). ' Ubi sup.
 
 326 A SHORT HISTORY OF ENGLISH LAW 
 
 of resistance. But in the way of the second, there was a pecul- 
 iarly awkward obstacle. For, no later than the previous 
 year, the House of Lords had solemnly decided in Mogul Steam- 
 ship Co. V. McGregor,^ that a ring of shipowners, who, in order 
 to secure a monopoly of a certain trade, had not merely com- 
 bined to underbid all rivals in the matter of freights, and offered 
 a rebate of 5 per cent, to all shippers who should ship only with 
 members of the ring, but actually threatened with dismissal 
 agents of members who should act for such rivals, had committed 
 no breach of the law. What they had done was in the pursuit 
 of legitimate trade competition. 
 
 But, in the case of Temperton v. Russell, the Court of Appeal, 
 in spite of the decision of the House of Lords in the previous 
 year, boldly adopted the doctrine, hitherto unknown to English 
 tribunals,- that a combination of persons, if not a single person, 
 who knowingly induced others not to enter into contracts with 
 A, would be liable to an action by A, if the latter actually suffered 
 loss in consequence of the defendants' conduct. Instead of 
 explaining away the Mogul Case, the Court of Appeal used 
 expressions of the learned Lords in that case as the justification 
 of its conclusion ; despite the fact that, as the Mogul Case was 
 decided in favour of the defendants, these expressions must 
 have been mere obiter dicta.^ 
 
 Nevertheless, both branches of the decision in Temperton v. 
 Russell were fully acted upon by the Courts. Though the 
 case of Allen v. Flood * failed, on the ground that there was no 
 evidence of actual breach of contract by the employers, the 
 principle that the inducing either of masters or workmen to 
 break existing contracts is actionable, either by the workmen 
 discharged or the master deprived of his servant, has been upheld 
 in Reed v. Operative Stonemasons,^ Gihlan v. National Labourers' 
 Union, ^ Glamorgan Coal Co. v. S. W. Miners' and other cases. 
 And the doctrine, that a combination to induce third persons 
 
 « [1892] A.C. 25. 
 
 * There was a faint authority claimed for ihe thoroughly untrustworthy case 
 of Gregory v. D. of Brunswick (1843) 6 M. & G. 205, 953. In this case, though 
 actual violence was alleged against the defendants, they obtained a verdict; and the 
 question of law was never really discussed. 
 
 ' It is a little difficult to trace the passages to which Lord Esher, in [1893] 
 1 Q.B., at p. 729 refers. 
 
 * [18981 A.C. 1. 
 
 ^[1902] 2 K.B. 732. (Here the action was by the dismissed workman.) 
 M1003] 2 K.B. 600. '[1905] A.C. 239.
 
 CONTRACT AND TORT IN MODERN LAW 327 
 
 not to enter into the employ of, or supply goods to, the plaintiff, 
 though no actual breach of contract occurs, is, if it occasions 
 loss to the plaintiff, a cause of action, is fully upheld by the 
 leading decision of Quiiin v. Leathern^ (the ' Belfast Butchers' 
 Case '), in spite of the fact that two of the learned Lords who 
 decided that case had taken part in the unanimous judgment 
 in the Mogul Case? Thus came into existence the new doctrine 
 of civil conspiracy, to replace the doctrine of ' common law ' 
 criminal conspiracy, which had been extinguished by the Act 
 of 1875.^ It is a far-reaching doctrine, the end of which it is 
 difficult to foresee;^ despite the fact that it has, by recent 
 legislation, been deprived of its application to industrial dis- 
 putes.^ It must be carefully noted that, as explained by Lord 
 Esher in Tem'perton v. Russell,^ ' civil conspiracy ' differs from 
 criminal, in that, in the case of the former, damage to the plain- 
 tiff is essential to the action ; while, in the case of criminal 
 conspiracy, it is the conspiracy which is the gist of the prose- 
 cution. The suggestion that a single person might be held 
 liable for similar conduct has not been adopted.^ 
 
 A far more serious matter, however, even than the develop- 
 ment of the doctrine of civil conspiracy, was the decision given 
 _. . by Mr. Justice Farwell in the well-known Taff Vale 
 
 Unions and Case,^ whicli after being reversed by the Court of 
 orpora ons ^pp^g^j 9 ^^^ confirmed by the House of Lords. ^° By 
 this celebrated decision, which really worked a revolution in Eng- 
 lish law, it was held that a Trade LTnion, registered under the 
 Act of 1871,^^ might be made a defendant in an action founded 
 
 1 [1901] A.C. 495. 2 Ante,V>. 326. 
 
 ^ Ante, pp. 323, 324. (The notion that an action for civil conspiracy, of the kind 
 alleged, was known to the common law, is still more baseless than the view that the 
 common law knew a doctrine of criminal conspiracy. The action of Conspiracy 
 on the old statutes had given birth in the sixteenth century (Fitzherbert, Natura 
 Brevium, fo. 116 A) to the action of Malicious Prosecution ; and there it had ended. 
 Of course, Malicious Prosecution cannot be brought for inducing people not to 
 enter into contracts.) 
 
 " There has been some suggestion that the doctrine is confined to cases of injury 
 to the plaintiff's trade, business, or profession. But see Sweeney v. Coote [1907] 
 A.C. 221. 
 
 6 Trade Disputes Act, 1906, s. 1. « [1893] 1 Q.B., at p. 729. 
 
 ' It was favoured by Lord Lindley in Quinn v. Leathern [1901] A.C, at p. 537, 
 and by Romer, L. J., in Giblan v. National Labourers [1903] 2 K.B., at pp. 619-20. 
 Obviously, if it were adopted, it would render s. 1 of the Trade Disputes Act inopera- 
 tive in this important class of cases. 
 
 " (1900) 70 L.J.K.B. 905. » [1901] 1 K.B. 170. 
 
 1" [1901] A.C. 426. " Ibid.
 
 328 A SHORT HISTORY OF ENGLISH LAW 
 
 on torts alleged to have been committed by its officials on its 
 behalf, and the Trade Union funds be made liable to pay the 
 damages awarded. There was no historical authority for such 
 a proposition. As Mr. Justice Farwell admitted/ ' a corpora- 
 tion and an individual or individuals ' were ' the only entity 
 known to the Common Law who can sue or be sued ' ; yet he 
 held, and was followed by the House of Lords, that, by impli- 
 cation (for it was common ground that the Acts contained no 
 expressions to that effect) the Trade Union Acts of 1871 and 
 1876,^ by conferring upon Trade Unions many valuable rights 
 in connection with the protection of their funds, had rendered 
 them liable to be sued for torts, quite unconnected with prop- 
 erty, but alleged to have been committed by their officials 
 acting on their behalf. If the Court had held that the trustees 
 of the Union, in a matter ' concerning the real or personal prop- 
 erty of such Trade Union,' could be sued, it would, of course, 
 have been merely following the wcr"ds of the Act of 1871 ; ^ but 
 that course would not have suited the plaintiffs, who, probably, 
 could not prove any complicity by the trustees. All the learn- 
 ing and ingenuity of the Court and the House of Lords could 
 not discover more than a dozen quotable precedents ; and one 
 of these was so remote "^rom the point as that of Sevenoaks Ry. 
 Co. V. L. C. & D. Co.,^ which merely decided that a statute 
 might, by implication, authorize a lease in perpetuity. Apart 
 from such attenuated analogies, there was no attempt to meet 
 the common sense argument, that the framers of the Trade 
 Union Acts, who expressly gave to the trustees of the registered 
 Unions limited powers of suing and being sued, could not possibly 
 have omitted, by mere forgetfulness, to confer similar powers on 
 the Unions themselves. They did not confer such powers; 
 because they did not think it wise to do so. The decision 
 of the Lords in the Taff Vale Case was pure legislation ; and 
 it threatened to ruin Trade Unionism, by making huge drafts 
 upon its funds. The House of Lords had first invented a new 
 civil offence ('civil conspiracy'), and had then created a new 
 kind of defendant against whom it could be alleged. 
 
 But this decision, combined with certain severe decisions 
 
 » [1901] A.C., at p. 429. 
 
 2 The Act of 187G (39 & 40 Vict. c. 22) had amended the Act of 1871 {ante, pp. 
 322) in various minor points. 
 
 » S. 9. * (1879) 11 Ch. D., at p. 635.
 
 CONTRACT AND TORT IN MODERN LAW 32^ 
 
 given about the same time in connection with the much-disputed 
 
 Trade point of ' peaceful picketing,' ^ seems to have con- 
 
 Disputes , '-. 1 • , . , 
 
 Act vmced the Unions that it was hopeless, in the exist- 
 
 ing state of the statute law, to attain what they conceived to 
 be their just rights. They accordingly bent their whole energies 
 towards obtaining an alteration of the statute law ; and, after 
 the General Election of January 1906, as one of the first meas- 
 ures of the new Parliament, they succeeded in procuring the 
 passing of a short but drastic Act, the Trade Disputes Act, 
 1906.^ The first thing to note about this important statute is, 
 that the first three of its four enactments are by express words,^ 
 and the fourth by judicial interpretation,* confined to acts done 
 * in contemplation or furtherance of a trade dispute.' Sub- 
 ject to this qualification, however, the Act expressly renders 
 non-actionable — 
 
 1. Any act done by a combination of persons which would 
 
 not be actionable if ione without such combination (s. 1). 
 
 2. Any act which merel}" induces a breach of a contract 
 
 of employment, or interferes with trade, business or 
 employment, or the right of some other person to 
 dispose of his capital or labour as he wills (s. 3). 
 
 3. Any alleged responsibility by a Trade Union, as a body, 
 
 for the tortious acts of its officials or members (s. 4). 
 And the Act expressly authorizes^ representatives of a Trade 
 Union or employer to ' attend at or near a house or place where 
 a person resides or works or carries on business or happens 
 to be, . . . merely for the purpose of communicating infor- 
 mation, or of peacefully persuading an}" person to work or 
 abstain from working.' This new definition of 'peaceful picket- 
 ing' is substituted for the older definition given in the Con- 
 spiracy and Protection of Property Act, 1875.^ 
 
 Thus the labour organizations appeared to have suddenly 
 turned the whole fortunes of war in their favour. But their 
 Recent opponents are resourceful ; and, even since the 
 
 Decisions passing of the Trade Disputes Act, 1906, have re- 
 covered a certain amount of ground. Thus, it has been held 
 
 1 Lyons v. Wilkins [1899] 1 Ch. 255; Charnock v. Court [1899] 2 Ch. 35; Walters 
 V. Green, ibid., 696. 
 
 * 6 Edw. VII, c. 47. ' Ss. 1-3. 
 
 * Richards v. Bertram (1909) 25 T.L.R. 181. 
 
 » S. 4. « S. 3.
 
 330 A SHORT HISTORY OF ENGLISH LAW 
 
 that, though a workman is precluded by the express words of 
 the Trade Union Act, 1871,^ from bringing an action to recover 
 sick pay alleged to be due to him under the rules of the Union,^ 
 yet a member of a registered Trade Union may obtain an injunc- 
 tion against the Union, restraining it from applying its funds for 
 purposes beyond the proper objects of the Union,^ and, further, 
 may secure protection against a Union which threatens to expel 
 him for not subscribing to such funds.^ Again, while the Court 
 of Appeal has confirmed the jurisdiction of the Court to pro- 
 nounce, at the instance of a member of a registered Trade Union, 
 upon the validity or invalidity of any rule of the Union, ^ it has, 
 just as this book goes to press, refused to enforce, at the instance 
 of a Union, a bond entered into by one of its members with it 
 for return of a large sum of money paid to him by the Union 
 as sick benefit, upon events which had happened.® Obviously, 
 the rights and liabilities of Trade Unions, and, therefore, by 
 analogy, of other unincorporated bodies, are in a somewhat 
 uncertain condition, in which every kind of surprise is possible. 
 In concluding this long and somewhat painful story, it is 
 pleasant to refer to the beneficent provisions of the Workmen's 
 Compensation Acts 1897, 1900, and 1906,^ which have enabled 
 a workman who has suffered injury in the course of his employ- 
 ment, or the dependents of a workman who has been killed in 
 such course, to recover compensation from his employers by 
 arbitration proceedings in the County Court, quite apart from 
 any question of negligence by employer or fellow-workman.^ 
 Doubtless these statutes have given rise to much litigation ; 
 and doubtless they are sometimes abused. But the general 
 adoption of the system of insurance against liability had prac- 
 tically deprived the measures of all terrors for ordinarily prudent 
 employers ; while the same system has guaranteed compensa- 
 
 iS. 4 (3). 
 
 ^ Burke v. Amalgamated Society [1906] 2 K.B. 583; Russell v. Amalgamated 
 Society [1910] 1 K.B. 506. 
 
 '^Amalgamated Society v. Osborne [1910] A.C. 87. * Id., (No. 2). 
 
 <• Gozney v. Bristol, &c.. Society [1909] 1 K.B. 901. (This case is valuable as con- 
 taining a repudiation by Fletcher Moulton, L.J., at p. 919, of the doctrine that every 
 Trade Union is an 'illegal association at the common law.') 
 
 ^ Baker v. Ingall [1911] 2 K.B. 132. 
 
 ' 60 & 61 Vict. c. 37 ; 63 & 64 Vict. c. 22 ; 6 Edw. VII, c. 58. 
 
 * Thus the Acts have, incidentally, almost abolished the operation of the doctrine 
 of 'common employment' {ante, pp. 317-319) so far as 'workmen' are concerned. 
 But in some cases even workmen may have to resort to the common law ; and, in 
 the case of other employees, the doctrine ia still important.
 
 CONTRACT AND TORT IN MODERN LAW 331 
 
 tion to thousands of deserving workmen who would otherwise 
 have been dependent on charity. Bare allusion may also be 
 made to the Old Age Pensions Act, 1908, and the Insurance 
 Act, 1911, which will, in the future, still further alleviate the 
 hardships of the poorer classes of the community. But these 
 measures hardly come within the scope of the present survey.
 
 CHAPTER XVIII 
 
 REFORM IN THE CRIMINAL LAW 
 
 WE have seen ^ that, broadly speaking, the Law of Crime 
 had, by the end of the preceding period, definitely 
 separated itself, both from the older procedure by way 
 of revenge (the 'appeal of felony') and from the civil procedure 
 of the King's Courts. This fact, however, only resulted at 
 first in bringing out, more clearly than before, its barbarous 
 character. Not only did it recognize, in theory, but one 
 punishment for all serious offences, viz. death with confiscation 
 of property, but it clung to the original idea that a criminal 
 prosecution did not really begin until the accused had been found 
 suspect by the Grand Jury, and that, therefore, there was very 
 little likelihood of his innocence. Historically speaking, as we 
 have also seen,- the petty jury, or Jury of Inquest, was a mere 
 after-thought, designed to fill the gap left by the abolition of the 
 ordeal ; and the presumption was heavily against the accused. 
 Naturally, therefore, he was not given much liberty in his defence. 
 He was not allowed to see a copy of the ' indictment ' or accusation 
 preferred before the Grand Jury ; nor to obtain a list of the Crown's 
 witnesses. It is doubtful whether he could call witnesses on his 
 own behalf. If he could, they were not allowed to testify on 
 oath ; and the rules as to ' interested ' witnesses excluded, in all 
 probability, the very persons upon whose testimony he most 
 relied. He was not allowed to have counsel to speak for him ; 
 unless a point of law arose at the trial. It may be that the 
 requirement of a preliminary approval by the Grand Jury, of all 
 accusations of a serious nature, justified the boast that a man 
 was presumed to be innocent until he was 'found' guilty; 
 but that presumption certainly ceased to have practical applica- 
 tion, so soon as the Grand Jury had returned a 'true bill.' 
 
 ' Ante, chap. xi. ' Ante, pp. 50, 52.
 
 REFORM IN THE CRIMINAL LAW 333 
 
 Happily, the record of the period now under review, save in 
 the stationary period of the eighteenth century, is one of steady 
 progress towards enhghtenment and humanity in the treatment 
 of criminals. 
 
 The first great reform was the passing of the statute which 
 guaranteed the citizen against arbitrary arrest on a criminal 
 Habeas charge — the Habeas Corpus Act of 1679. The 
 
 Corpus history of the famous remedy of 'Habeas Corpus' 
 
 is one of the quaintest and most characteristic in English legal 
 literature ; but it can only be briefly summarized here.^ In 
 the thirteenth century, the ' Habeas Corpus ' was merely an or- 
 dinary judicial writ, the necessary incident of every criminal 
 trial, bidding the sheriff or other person charged with the custody 
 of an accused person, 'have his body' before the Court for the 
 purpose of trial. Such a person might be either in actual custody, 
 in which case the direction was merely formal, or he might be 
 at large 'on bail,' i.e. on security to give himself up for trial.^ 
 In that event, it would be, practically, the duty of the sheriff 
 to see that the accused was available on the day of trial.^ 
 
 But, in the fourteenth and fifteenth centuries, there arose 
 the practice of applying this judicial writ for the purpose of 
 Writ of carrying out the objects of another and more com- 
 
 Priviiege prehensive writ, the Writ of Privilege. This latter 
 remedy was the process by which, in the way so characteristic 
 of the Middle Ages, each tribunal protected its own officials 
 from unfair treatment by jealous rivals. Any official of one 
 Court, who was sued or prosecuted in another, was entitled to 
 a Writ of Privilege to remove him to his own tribunal, where he 
 was supposed to be wanted to carry on official business."* If 
 he succeeded in establishing his right to this writ, his own tri- 
 bunal would send a writ of Habeas Corpus to the rival tribunal 
 by which he was detained, bidding the responsible official of 
 that tribunal 'have the body' (of the privileged person) 'before 
 
 1 It will be found at greater length in Select Essays in Anglo-American Legal 
 Histo^J^ II, pp. 531-548, by the author. 
 
 2 The right to bail was at this time carefully regulated by the Statute of West- 
 minster I (3 Edw. I (1275) c. 15). 
 
 3 A very late survival, or revival, of this use of the Habeas Corpus is that provided 
 by the statute of 1661 against vexatious arrests (13 Car. II, st. II, c. 2, s. 5), in 
 actions against prisoners in the Fleet prison. 
 
 * This hypothesis accounts for one of the defects in the process of Habeas Corpus 
 prior to 1679, viz. that the writ could not be obtained in vacation, when the Courts 
 "were closed.
 
 334 A SHORT HISTORY OF ENGLISH LAW 
 
 us' (on such a day) 'together with the cause' of his deten- 
 tion.^ 
 
 A century later, we find this writ of 'Corpus cum causa' 
 used by the old-estabUshed ' superior ' Courts to test the vaHd- 
 Corpus ity of imprisonment by their newer 'prerogative' 
 
 cum causa rivals, or the exercise of irregular authority by execu- 
 tive officials. The latter was the more serious danger ; and 
 the successful claim to the protection afforded by the writ es- 
 tablished in two cases of the year 1588,^ is a landmark in the 
 history of the struggle between liberty and prerogative. In the 
 latter case, the applicant had been arrested by virtue of a warrant 
 signed by a Secretary of State ; and the issue of the writ assumed 
 the inadequacy of the authority. On the trial, the Court re- 
 luctantly admitted the power of the Privy Council, as a body, to 
 arrest without reason assigned ; but, four years later, the judges 
 adopted a famous resolution,^ to the effect that, even in such 
 cases, the gaoler must produce the prisoners when required to 
 do so by Habeas Corpus. All pretence that the applicant was 
 an official of the tribunal applied to had by this time been aban- 
 doned ; and there is some little evidence to show that the Court 
 of Chancery had even made use of the remedy in its struggle 
 with the Common Law Courts at the beginning of the seven- 
 teenth century.^ 
 
 But the weakness of a remedy resting on a series of historical 
 fictions appeared in the struggle between Charles I and his 
 Parliament. In the famous Case of the Five Knights 
 and Habeas in 1627,^ the Court of King's Bench remanded the 
 ""^^"^ applicants to the Fleet ; and, in spite of the express 
 
 words of the Petition of Right in 1628,® it even refused to order 
 the production of the six members of Parliament arbitrarily 
 imprisoned under royal warrant in 1629.^ 
 
 One of the first acts of the Long Parliament, however, on its 
 assembling in November, 1640, was to pass a sweeping statute 
 dealing with the abuses of prerogative jurisdiction ; and, in that 
 
 • Even 80 recently as the eighteenth century, the great case between the scriveners 
 and the attorneys in London (ante, p. 202, n. 2) was fought out on a Writ of Privilege. 
 (See a full account in Report of the Proceedings, Williams, 1768.) 
 
 "Search's Case, 1 Leon. 70; Howell's Case, ibid., 71. 
 ' Anderson's Reports, p. 298. 
 
 * If the Common Law Court committed a defendant to prison for applying for 
 an injunction to stay proceedings at law. Chancery would get him out by a Habeas 
 Corpus. 6.3 St. Tr. pp. 1-235. 
 
 ' 3 Car. I, c. 1, bb. 5, 10. ^ Six Members Case, 3 Str. Tr. pp. 235-294.
 
 REFORM IN THE CRIMINAL LAW 335 
 
 statute, it was provided that every person imprisoned by such 
 authority should be entitled as of right to his Habeas Corpus.^ 
 Unfortunately, in the heat of debate, the clause was badly 
 worded ; and, in the later days of Charles II, it was practically 
 set at defiance by venal judges acting in the interest of the 
 Court. At length, however, chiefly as the result of the oppressive 
 proceedings in Je?iks' Case,^ tried in 1676, the great statute 
 of the year 1679^ was passed. Its provisions are well known. It 
 gives every prisoner an absolute right to have the validity of his 
 imprisonment speedily raised and discussed by a superior Court in 
 his presence, whether in Term time or vacation. If the authority 
 under which he is imprisoned is lawful, as in the ordinary case of 
 a prisoner committed for trial, with bail lawfully refused, the 
 applicant will, of course, simply be remanded to prison.^ But 
 save in the rare case of an absolutely friendless man suddenly 
 carried off to gaol, or an arrest so secretly effected that no one 
 but the prisoner and his custodians are aware of it, it is absolutely 
 impossible for any irregularities in arrest or imprisonment now 
 to take place in this country.^ The most striking feature of 
 the statute (which has since been amended to include arrest on 
 civil process) ^ is that which imposes a heavy pecuniary penalty ^ 
 on any judge refusing the application for the writ. This statute, 
 re-inforced as it was by the civil remedies applied in the well- 
 known * General Warrant ' cases at the end of the eighteenth 
 century,^ may be said to have definitely established in England 
 that ' Rule of Law ' which is the chief guarantee of English 
 liberty. For both statute and decisions are based upon the 
 principle, that even an official acting under the authority of the 
 Crown must show definite legal authority for any act which 
 interferes with the personal freedom or domestic privacy of the 
 ordinary citizen. 
 
 One of the first reforms in the criminal law which took place 
 Criminal after the Revolution was aimed at the abuse by which 
 tions the process of criminal information was employed 
 
 by private plaintiffs in civil cases, to vex and oppress their 
 
 1 16 Car. I, c. 10, s. 8. '6 St. Tr. pp. 1189-1208. 
 
 3 31 Car. II, c. 2. < Ss. 2, 10. 
 
 ' The case of Ex parte D. F. Marais [1902] A.C. 109, which is not binding on 
 English courts, makes it doubtful whether this statement is true of the colonies. 
 
 « 56 Geo. Ill (1816) c. 100. ' 31 Car. II (1679) c. 2, s. 10. 
 
 8 Wilkes V. Wood (1766) 19 St. Tr. 1153; Entick v. Carrington (1765) 19 St. Tr. 
 1030 ; Leach v. Money (1765) 19 St. Tr. 1001.
 
 336 A SHORT HISTORY OF ENGLISH LAW 
 
 opponents. The criminal information was, in theory, a 
 process by which one of the King's officials, e.g. a coroner, in- 
 formed His Majesty of the existence of claims enforceable by the 
 Crown. It was made through the Master of the Crown Office, 
 the Chief Coroner of the Kingdom ; and that official ought not, 
 of course, to have allowed private suits to be converted into 
 criminal prosecutions by this means. Most abuses could be 
 practised for adequate consideration in the reign of Charles II ; 
 but the framers of the Bill of Rights determined to suppress this 
 scandal, and, though the clause was struck out of their draft, 
 a statute ^ was devoted to the subject in 1G92. By that Act, the 
 Clerk of the Crown in the King's Bench is forbidden to receive 
 any such information ; except under an order pronounced in open 
 Court, or on the security by the informer in £20 for prompt 
 prosecution, and payment of costs if unsuccessful. To this 
 statute we probably owe the rule that a common trespass is not 
 now a criminal offence, and that the words so frequently to be 
 seen disfiguring the country-side — ' Trespassers will be prose- 
 cuted ' — are, as has been wittily said, a ' wooden falsehood.' 
 
 If William of Orange had no other claim to the gratitude of 
 the Englishman of his day, he would have been entitled to 
 Trials for ^^ ^^r assenting to the noble Treason Act of 1695.^ 
 Treason gy that statute, the procedure on trials for that very 
 offence which is most apt to inspire severity in rulers, was brought, 
 almost at one step, to the modern plane of humanity and justice. 
 All persons prosecuted for treason, or misprision {i.e. conceal- 
 ment) of treason, are. to have a copy of the indictment delivered 
 to them five days, and a copy of the ' panel ' or jury list two 
 days,^ at least, before their trials ; they may be represented by 
 counsel at their trials, and may call witnesses who shall give 
 evidence on oath. If the accused is too poor to retain the 
 services of counsel, the Court must assign him two of his own 
 choice, free of expense.^ No prosecution for treason or misprision 
 committed in England (except a direct design on the life of the 
 King) is to be commenced more than three years after the date 
 
 ' 4 & 5 W. & M. c. 18. 2 7 & 8 Will. Ill, c. 3. 
 
 ' S. 7. The right of a person accused to 'challenge' or reject jurors, was reg- 
 ulated by 33 Hen. VIII (1541) c. 23, s. 3, which forbade 'peremptory' challenges 
 for treason. But the right of the accused to challenge 'for cause' had been also 
 rendered nugatory by the secrecy preserved as to the composition of the list. 
 
 * S. 1.
 
 REFORM IN THE CRIMINAL LAW 337 
 
 of the alleged commission.^ Finally, by what is, perhaps, the 
 most striking provision of all, no one may be tried for treason or 
 misprision except on the oaths of two witnesses, who, though 
 they need not speak to the same precise act or acts, must testify 
 to the same kind of treason.^ 
 
 The later years of the seventeenth century were also memorable 
 for the introduction of the system of ' transporting ' offenders 
 Transporta- beyond the seas to the newly-acquired possessions 
 ^°°^ of the Crown, where the scarcity of labourers rendered 
 
 them welcome immigrants. As a stage in the evolution of 
 criminal law, the practice was eminently humane, and beneficial 
 for both the parties to the transaction. But, as it involved com- 
 pulsory exile, it could at first only be applied to persons who 
 voluntarily accepted it as an alternative of capital punishment. 
 There was no power to transport a convict, if he preferred to be 
 hanged. But, in the year 1717,^ this scruple was overruled by a 
 statute which allowed sentence of transportation to be passed 
 upon all offenders entitled to ' benefit of clergy,' ^ for a period 
 of seven years, and upon other convicted offenders for twice that 
 period. 
 
 Again, the thick darkness of the eighteenth century descended 
 upon the criminal law ; but at the very end of that century we 
 stipendiary g^t an important statute,^ connected with the im- 
 Magistrates mortal name of Fielding, which sets up a small body 
 of skilled and salaried ^Metropolitan magistrates, in place of 
 the old ' trading justices,' paid only by fees, whose conduct was 
 a disgrace to the administration of the criminal law. These 
 ' trading ' Justices, mostly uneducated men, of no morality but 
 considerable natural parts, ignoring the ' watch ' or official 
 guardians of the peace, had employed a semi-professional body 
 of ' runners,' devoted to their masters' interests, and entirely 
 unscrupulous in the exercise of their special knowledge. Accord- 
 ingly, if the prosecutor made it worth while for the Justice to 
 exert his powers, the criminal was speedily brought to book ; 
 while, if the latter outbid his adversary, he enjoyed practical 
 immunity. Any prospect of a falling off in the magisterial 
 income had been promptly remedied by a raid among prostitutes, 
 
 » S. 5. 2 sg 2, 4. 
 
 '4 Geo. I, c. 11. * Ante, pp. 156-158. 
 
 * 32 Geo. Ill, c. 53. (Of course it is not suggested that Henry Fielding lived 
 until 1792. But the suggestion was due to him.)
 
 338 A SHORT HISTORY OF ENGLISH LAW 
 
 gamblers, cut-purses, and other habitual offenders ; upon whom 
 an extra arrest or two made little impression, but who could be 
 made to yield fines. The new system worked so well, that it 
 was extended to other municipalities, which chose to apply for it, 
 in 1835.^ 
 
 IVIeanwhile, the loss of the American colonies had practically 
 put a stop to the process of transportation, which had grown 
 Penal by leaps and bounds since its legalization in 1717; 
 
 Servitude .^^-^^ ^j^g difficulty had been met by the substitu- 
 tion of the new form of punishment known as * penal servi- 
 tude,' i.e. imprisonment — no longer, as in the old days, mere 
 stupid, aimless confinement, but restriction of liberty accom- 
 panied by compulsory labour. At first the process was carried 
 out in ships moored in the Thames and other rivers, known 
 popularly as ' the hulks ' ; and there can be no doubt that, at 
 first, it was very imperfectly administered. Moreover, the 
 practice of sending convicts to the newly-acquired colonies in 
 Australia for a time rendered its development less urgent. But 
 when the outflux to Australia was also closed,^ as that to America 
 had been, the ' penal servitude ' system, greatly improved by 
 the introduction of 'ticket-of-leave,' ^ good-conduct marks, 
 police supervision, the 'Borstal system' for juvenile offenders,* 
 and other modern developments of scientific criminology, has 
 become the chief engine for the enforcement of the criminal law 
 in the more serious classes of cases. The power to add 'hard 
 labour' and solitary confinement to a sentence of imprisonment 
 was conferred in 1827.^ 
 
 But it was not sufficient to improve the mere machinery of 
 the criminal law, while the substance of that law remained in 
 Peel's Acts ^^^ barbarous condition. Accordingly, even before the 
 passing of the Reform Act, a series of statutes, con- 
 nected with the name of Sir Robert Peel, was passed with the 
 object of moderating that sanguinary code. By the Act of 
 1827,® previously referred to, the tendency which, as we have 
 seen,^ had formerly manifested itself, to distinguish between 
 
 1 Municipal Corporations Act (5 & 6 Will. IV. c. 76, s. 99). 
 
 2 In the year 1853. The process was prohibited by statute in 1857 (20 & 21 
 Vict. c. 3. s. 2). 
 
 ' Penal Servitude Act, 1853 (16 & 17 Vict. c. 99) ss. 9-11. 
 
 * Prevention of Crime Act, 1908 (8 Edw. VII. c. 59) ss. 1-4. 
 
 » 7 & 8 Geo. IV, c. 28, s. 9. « 7 & 8 Geo. IV, c. 28. 
 
 ' Ante, pp. 151-153.
 
 REFORM IN THE CRIMINAL LAW 339 
 
 capital and non-capital felonies, was given a wide extension. 
 No longer was the mere declaration by a statute that certain 
 acts should be 'felonious' to render them capital offences; no 
 new offence was to be capital unless expressly declared so to 
 be. And, as a fact, opportunity was taken, in the almost con- 
 temporary group of statutes known as 'Peel's Acts,'^ to remove 
 the death penalty in many cases ; though it was still allowed to 
 figure far too frequently in the statute-book. 
 
 The passing of the Reform Bill was speedily followed by 
 renewed efforts in this, as in other directions. Spurred on by 
 the energies and reputation of the veteran jurist Jeremy Bentham, 
 and of his enthusiastic disciples, a Royal Commission went 
 thoroughly through the whole of the criminal law, and produced 
 a crop of amending statutes, which passed into law in the year 
 1837,^ shortly after the accession of the youthful Queen Victoria. 
 It is impossible to go into details of them ; but attention may be 
 especially drawn to the last of the group,^ which abolished the 
 death penalty in the case of a large number of offences, such as 
 riot, rescue, seducing from allegiance, administering unlawful 
 oaths, prison-breach, slave-trading, and certain forms of smug- 
 gling. On the other hand, it should not be forgotten that the 
 system of trained and disciplined police, introduced by Sir Robert 
 Peel into London in the year 1829,^ was extended to the munici- 
 pal boroughs by the Reform Act of 1835 ; and that thus the 
 criminal law, if it had become more lenient, was infinitely better 
 enforced, than in the old days of the watch and parish constable. 
 The system of police in the boroughs, however, and in the counties, 
 where it was introduced in 1839,^ was not made compulsory till 
 the year 1856.^ It should, moreover, be remembered in this 
 direction, that, if the skill and certainty of prosecutions had 
 been increased, the chances of a successful defence had also 
 been largely increased by an important statute, the Trials for 
 Felony Act, passed in the year 1836,^ which extended to the 
 accused in all cases, whether tried by indictment or summarily, 
 the right to be defended by counsel, and gave to all prisoners 
 
 ^ The chief subjects affected were— (1) larceny and malicious injuries to prop- 
 erty (1827) ; offences against the person (1828) ; forgery (1830) ; the coinage (1832). 
 
 - The chief are 7 Will. IV & 1 Vict. c. 84 (forgery), c. 85 (offences against the per- 
 son), c. 86 (burglary), c. 87 (robbery and theft from the person), c. 88 (piracy), 
 c. 89 (arson), c. 90 (transportation), c. 91 (capital punishment). 
 
 » 7 Will. IV & 1 Vict. c. 91. * 10 Geo. IV, c. 44. 
 
 ^2 & 3 Vict. c. 93. « 19 & 20 Vict. c. 69. ' 6 & 7 Will. IV, c. 114,
 
 840 A SHORT HISTORY OF ENGLISH LAW 
 
 the right to have copies of the depositions of the Crown witnesses, 
 or to inspect such depositions at their trial. 
 
 The next important year in the history of the Criminal Law 
 is 1848, the year of European revolutions. In that year was 
 Sir John passed the important trio of statutes known as * Sir 
 jervis' Acts Jq}^j^ Jervis' Acts.' These are concerned with the 
 jurisdiction of the Justices of the Peace, which, with the enormous 
 increase in the population, had become of ever-growing im- 
 portance. The statutes distinguish clearly between the merely 
 preliminary, and the judicial work of the magistrates. In the 
 former,^ the sole object of the Justices is to see whether there is 
 such a prima facie case against the accused as will justify them 
 in committing him for trial. But it is recognized, that even 
 mere committal for trial is a heavy blow to an innocent man ; 
 and, accordingly, the accused is to have the opportunity, if he 
 desires it, of cross-examining the witnesses for the prosecution, and 
 to be represented by counsel or solicitor.^ Moreover, to prevent 
 groundless accusations, he may only be arrested, in the first 
 instance, if a sworn information has been laid against him ; on a 
 mere summons, he cannot be arrested unless he fails to appear 
 and make his defence.^ And, all through the preliminary pro- 
 ceedings, the accused is entitled to bail; except on the heavy 
 accusations in which the magistrates are entitled to refuse bail, 
 or even unable to grant it.^ Moreover, it is expressly provided,^ 
 that the room in which the preliminary examination takes place, 
 shall not be deemed an open Court, and that the magistrates 
 may exclude the public, if they think that such a course will best 
 serve the ends of justice. 
 
 The second of Sir John Jervis' Acts, the Summary Jurisdic- 
 tion Act, 1848, deals with the final or judicial work of the Justices. 
 This had also grown enormously in recent years ; especially in 
 its 'summary' aspect, i.e. when the magistrates sat without a 
 jury to dispose of minor accusations. Here again arose the 
 question which, as we have seen,^ was left in a somewhat un- 
 certain condition at the close of the preceding period. Techni- 
 cally, all such 'summary jurisdiction' was still exercised 'out 
 
 1 11 & 12 Vict. c. 42. 
 
 * 11 & 12 Vict. c. 42, 8. 17. The right of the accused to call witnesses at this 
 Btage was not conferred till 1867 (Criminal Law Amendment Act, 30 & 31 Vict. 
 c. 35, s. 3). 
 
 »S. 9. *S. 21. ^S. 19. M«<e, pp. 151-154.
 
 REFORM IN THE CRIMINAL LAW 341 
 
 of sessions,' i.e. Quarter Sessions. But more and more it was 
 coming to be regarded as unsuitable work for the Justice's private 
 room ; and, though the decisive enactment which made all such 
 business matter only for a Court of two ordinary Justices or one 
 Stipendiary, sitting in an open Court House, was postponed 
 till 1879,^ yet the Act of 1848, which, moreover, clearly recognizes 
 a right of appeal in every case to Quarter Sessions," goes far in 
 that direction.^ 
 
 Finally, the third of Sir John Jervis' Acts, the 'Justices' 
 Protection Act,' ^ by a very rare exception from the ' Rule of 
 Law,' granted in recognition of the unpaid services of the bulk 
 of the magistracy, mitigates, to a certain extent, the sharpness 
 of the common law rule, that even for a mere technical breach 
 of the law, innocently committed in the exercise of his functions, 
 a magistrate is personally liable to the injured party. 
 
 Another Royal Commission on the Criminal Law, which sat 
 for several years prior to 1861, was responsible for an important 
 Consoiida- group of consolidating statutes which, though not in 
 tion of i86i themselves amounting to a Criminal Code, gave fair 
 promise of the appearance of such a code in the future. These 
 are the five great enactments of the year 1861,^ which deal respec- 
 tively with larceny, malicious damage to property, forgery, false 
 coinage, and offences against the person. They still regulate, to 
 a great extent, the everyday business of the criminal courts; 
 and, in the opinion of so well-qualified a critic as the late Sir 
 Fitz-James Stephen,^ have been productive of immense good. 
 An attempt was made to add a Homicide Act in 1874 ; ^ but the 
 times were not propitious, and the effort was unsuccessful. A 
 very recent enterprise in another direction has been more 
 fortunate ; and the value of the consolidating Perjury Act of 
 1911^ may be gathered from the suggestive fact, that it repeals, 
 in whole or in part, no less than 131 other statutes, among 
 which the statutory law of perjurj^ had previously been dispersed. 
 
 The remaining events to be recorded in the history of the 
 Criminal Law have been mainly concerned with procedure; 
 
 1 Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49) s. 20. 
 
 2 S. 27. 3 s_ 12. Ml & 12 Vict. c. 44. 
 
 ^ 24 & 25 Vict. c. 96 (larceny), c. 97 (malicious damage), c. 98 (forgery), c. 99 
 (coinage), and c. 100 (offences against the person). 
 ^ Digest of the Criminal Law, Preface, p. xvi. 
 ' Ibid., p. 1. 8 1 & 2 Geo. V, c. 6.
 
 342 A SHORT HISTORY OF ENGLISH LAW 
 
 although, in this branch of the law, the connection between 
 substance and procedure is exceptionally close. 
 
 An important statute passed in the year 18G5, the Criminal 
 Procedure Act,^ by avow^edly setting up, as a model of a criminal 
 trial the practice followed in civil cases between private persons, 
 gave to English criminal procedure its most striking features. 
 The Crown steps down from its prerogative pedestal, and enters 
 the lists as an ordinary litigant, abandoning the formidable 
 prerogative weapons which, for so long, as the outcome of histori- 
 cal causes, had been at the disposal of its representatives. The 
 speeches of counsel are regulated with strict impartiality, as 
 between prosecution and accused ; ^ the prosecution may not 
 discredit its own witnesses if they are favourable to the accused ; ^ 
 w^hile all witnesses may be confronted with previous statements 
 made by them relative to the subject-matter,^ and may even be 
 cross-examined on such of them as are in writing.^ Moreover, 
 either side is entitled to show that a witness produced by the 
 other has previously been convicted of a criminal offence;^ 
 though whether this provision, at the present day, works in 
 favour of accused persons, may be considered doubtful. In 
 former times, when the evidence of 'common informers' was 
 much more relied upon than at present, it would have been of 
 great value to them in many cases. The assimilation of a 
 criminal to a civil trial w^as rendered yet more complete, by 
 the passing of the Costs in Criminal Cases Act, 1908,^ which 
 enables any Court by which an indictable offence is tried, or 
 proceedings preliminary to the trial of such case conducted, to 
 award costs to the prosecution or the defence. The analogy, 
 however, breaks down in the method of securing fulfilment of the 
 award ; for, in cases covered by the statute, the costs are first 
 paid out of public funds, and then recovered (if possible) by the 
 public authority from the imsuccessful party. 
 
 The procedural reform of 18G5 was rapidly followed by the 
 abolition of public executions for felony,^ and of the barbarous 
 system of escheat and forfeiture which reduced to beggary the 
 families of men of substance who had strayed from the paths of 
 
 1 28 & 29 Vict. c. 18. 
 
 ^ S. 2. (The privilege of the reply, which can be claimed by the Attorney- 
 General, even when the prisoner calls no evidence, is, however, not abolished.) 
 » S. .3. " S. 4. 6 S. 5. « S. 6. 
 
 ' 8 Edw. VII, c. 15. 8 31 & 32 Vict. (1868) c. 24.
 
 REFORM IN THE CRIMINAL LAW 343 
 
 virtue.^ In the year 1879, the ancient connection between 
 private vengeance and pubUc prosecution was finally severed, or, 
 at least, reduced to the slenderest proportions, by the establish- 
 ment of a Public Prosecutor, or Director of Public Prosecutions, 
 charged with the institution and carrying on of criminal proceed- 
 ings in the interests of justice, and of giving advice and assistance 
 to police officers, magistrates' clerks, and other persons, official 
 or private, concerned in criminal proceedings.^ The right of a 
 private person to take up, or insist on continuing, a prosecu- 
 tion, is strictly preserved ; ^ but, as the special scandal which the 
 Act was directed to meet was the unwillingness of private prose- 
 cutors to undertake costly proceedings, and the consequent 
 immunity of well-known offenders, it may, perhaps, be safely 
 predicted, that this part of the statute is not likely to prove the 
 most valuable in practice. The establishment of the new official, 
 whose functions were, until quite recently, combined with those of 
 the Solicitor to the Treasury and the King's Proctor, of course 
 in no way derogates from the long-established tradition, which 
 makes the Attorney-General the mouthpiece and adviser of the 
 Crown in all criminal matters. In fact, the statute creating 
 the office places it under regulations made by the Attorney- 
 General with the approval of the Lord Chancellor and a Secretary 
 of State. ^ The Director of Public Prosecutions is, however, 
 appointed by the Secretary of State, not by the Attorney- 
 General.^ 
 
 In the year 1898, was passed the important Criminal Evidence 
 Act,^ which put the crown on the long series of statutes passed 
 Criminal in the nineteenth century, with the object of liberalizing 
 the law of evidence. We have seen ^ how this move- 
 ment began with the subject of testamentary witnesses. In the 
 year 1843, Lord Denman's Act^ had admitted, generally, the 
 advisability of hearing all witnesses, whether interested or not, 
 in both criminal and civil proceedings ; but it had stopped short 
 of the admission of parties, their husbands or wives. In 1851, 
 the second of Lord Brougham's Evidence Acts ^ had departed from 
 
 1 33 & 34 Vict. (1870) c. 23. 
 
 242 & 43 Vict. c. 22, s. 2. ' Ss. 6, 7. 
 
 * Prosecution of Offences Act, 1879, s. 8. * S. 2. 
 
 « 61 & 62 Vict. c. 36. ' Ante, p. 270. 
 
 8 Evidence Act, 1843 (6 & 7 Vict. c. 85, s. 1). 
 
 'Evidence Act, 1851 (14 & 15 Vict. c. 99, s. 2).
 
 344 A SHORT HISTORY OF ENGLISH LAW 
 
 the last exclusion, and admitted the evidence of parties ; ^ but, 
 again, it had expressly excluded the evidence of an accused person 
 in a criminal trial, and his or her wife or husband." At length, 
 however, after considerable hesitation, this ancient disability was 
 swept away by the enactment of 1898, which makes the accused, 
 and his or her wife or husband, competent witnesses in a 
 criminal prosecution,^ and even allows the wife or husband to 
 be summoned in a few special cases without the consent of the 
 accused.^ But, generally speaking, neither can the accused 
 himself be compelled to give evidence, nor can his or her wife 
 or husband be called, except upon the application of the accused.^ 
 Moreover, the fact, that the accused has not volunteered testi- 
 mony, may not be commented on by the prosecution ; ^ though, 
 apparently, there is nothing to prevent the Court making such a 
 comment. 
 
 A more decided benefit was conferred upon accused persons 
 by the Poor Prisoners' Defence Act of 1903,'^ by which the 
 Poor magistrates committing a prisoner for trial, or the judge 
 
 Prisoners' before the hearing of the trial, mav certifv for legal aid : 
 
 Defence . > . i- o ' 
 
 whereupon the prisoner becomes entitled to have 
 solicitor and counsel assigned to him at the public expense.^ But 
 the most striking evidence of the sensitiveness of the public 
 conscience in the administration of the criminal law was the 
 establishment, in the year 1907, of the Court of Criminal Appeal, 
 consisting of the Lord Chief Justice and eight King's 
 Criminal Bench judges, of whom three, or any greater uneven 
 ^^^ number, constitute a quorum.^ Under the statute 
 
 establishing this tribunal, any prisoner, convicted on indictment, 
 may, with the leave, either of the tribunal itself or the Court 
 which tried him, appeal on grounds of fact, or mixed law and fact, 
 or any other ground, against his conviction ; while, with the 
 leave of the appellate tribunal, he may even appeal against the 
 amount of his sentence, unless that is fixed by law.^" The Court 
 of Criminal Appeal, on the hearing of an appeal, may totally 
 quash the conviction, or alter the sentence (not necessarily in the 
 
 ' Apparently not their husbands or wives. But this omission was rectified (with 
 certain precautions) by the Evidence Amendment Act, 1853 (16 & 17 Vict. c. 83, 
 e. 1). 
 
 ^^S. 3. 3 61 & 62 Vict. c. 36, s. 1. 
 
 * S. 4. (But not against the will of the witness.) 
 
 *S. 1 (a) (c). ^Ihid., (h). 7 3Edw. VII, c. 38. 
 
 « S. 1. 97 Edw. VII, c. 23, s. 1. " S. 3.
 
 REFORM IN THE CRIMINAL LAW 345 
 
 appellant's favour) ; ^ but, if it thinks the appellant was rightly 
 convicted, it is not bound to decide in his favour on a technical 
 point,- and, even though the appellant succeeds in upsetting 
 the conviction on one charge in an indictment, or in showing that 
 he has been found guilty of an offence which he did not commit, he 
 may yet be made to serve a proportionate sentence in respect of 
 a charge on which he was properly found guilty, and be sentenced 
 as for conviction on the offence which he really did commit.^ 
 The Court of Criminal Appeal has, however, no power to direct 
 a new trial. The statute affects neither the prerogative of 
 mercy ^ nor the former right of the accused to appeal on a point 
 of law.^ But, in the event of the latter being exercised, the appeal 
 will be heard by the new tribunal, which has taken over the 
 duties of the old Court for Crown Cases Reserved.^ 
 
 1 S. 4. 2 s_ 4_ 
 
 ^ S. 5. (Of course it must be clear that the jury were satisfied of facts sufficient 
 to justify the amended conviction.) 
 
 ^S. 19. sg. 3 (a), eg^ 20 (4).
 
 CHAPTER XIX 
 MODERN CIVIL PROCEDURE 
 
 IMMEDIATELY after the Restoration, steps were taken 
 to modify what, as we have seen in a former chapter,^ had 
 become the most striking abuse of civil process in per- 
 sonal actions, viz. the power of the plaintiff to arrest the de- 
 fendant on mesne process, before proving his claim, and either 
 to hold him in prison till the trial of the action, or to compel him 
 to give heavy bail to secure his freedom. We have seen, also, 
 how this abuse had been the means by which the rival Courts of 
 Common Law had stolen one another's jurisdiction, and how, 
 therefore, in spite of the enactment passed in the fifteenth 
 century to modify it," it speedily revived again and flourished 
 with all its old vigour. 
 
 It is to be feared, however, that the Restoration attempt at 
 reform was hardly due to the purest of motives. If the testi- 
 . ^ monv of the time can be trusted,^ it was due to the 
 
 Arrest on , ' 
 
 Mesne jealousy of the judges and officials of the Court of 
 
 Common Pleas, who saw with anger their once flour- 
 ishing and (as they, not unfairly, alleged) proper business, filched 
 away by the King's Bench, with its cheaper processes of Bills of 
 Middlesex and Latitats. 
 
 The first effort made by the Common Pleas was through 
 the Chancellor, Lord Clarendon, who, as will be remembered, 
 in his capacity of Custodian of the Great Seal, was supposed to 
 authorize the issue of all the Writs Original, the proper process 
 with which to commence an ordinary civil action. The Chan- 
 cellor, accordingly, in his Orders in Chancelry of 1660,^ forbade 
 the Cursitors to issue writs returnable in the King's Bench 
 containing the famous ac etiam clause ; ^ on the ground that they 
 
 ^ Ante, pp. 169-174. '23 Hen. VI (1444) c. 9 (5). 
 
 ' See, for example, Hale, Discourse, &c., Hargrave's Law Tracts, Vol. I, pp» 
 367-368 ; North, Lives of the Norths. I. uar. 146. 
 
 «Pp. 80-82. ^Ante, pp. 170, 171.
 
 MODERN CIVIL PROCEDURE 347 
 
 were * to the great damage of the subject . . . and of His 
 Majesty's Revenue for the casual fines due and payable on the 
 proper Original Writs.' But, in the following year, the Common 
 Pleas achieved a still more striking victory in Parliament, by 
 securing the enactment of a statute ^ which provided, that no 
 A t f 66 ^^^^' bailable under the statute of 1444, should be kept 
 in prison, by colour of any writ, bill, or process, 
 issuing out of the King's Bench or Common Pleas, in which the 
 certainty and true cause of action was ' not expressed particu- 
 larly,' but that any one so arrested should be entitled to his 
 immediate freedom, on giving security in a sum not exceeding 
 £40 for his appearance. 
 
 This statute, though speciously worded to cover both Courts, 
 was thought, at the time, by both to have inflicted a deadly blow 
 upon the Court of King's Bench, whose writs of Latitat and Tres- 
 pass quare clausum f regit, did not specify the precise nature of the 
 cause of action, or the amount of damage claimed by the plaintiff. 
 Indeed, they could not well do so, inasmuch as the trespass in 
 question was wholly fictitious. But the Court of King's Bench 
 quickly recovered from its temporary defeat, by the simple ex- 
 pedient of adding to its formal Latitat or Trespass an amended 
 ac etiam clause, in which the cause of action was stated to be a 
 plea of Debt or Case in the sum of £200, or whatever it might be.^ 
 The object of this change is freely admitted by Sir Matthew 
 Hale,^ who, with statesman-like impartiality, reviews the whole 
 dispute on the merits, i.e. the merits of the Courts, and proposes 
 various compromises. The Court of King's Bench also took care 
 that the new process should not be abused, by forbidding its 
 application to heirs or personal representatives.^ 
 
 But the Court of Common Pleas was in no mood to listen to 
 proposals of compromise ; and, under the guidance of its new 
 Chief, Sir Francis North, afterwards Lord Chancellor Guilford, it 
 retorted by once more making use of the Writ of Trespass quare 
 clausum f regit, which was, apparently, ' not finable,' ^ and, by 
 another ac etiavi clause, tacking on to it the true cause of action.^ 
 
 1 13 Car. II, St. II, (1661) c. 2, s. 2. 2 Hale, op. cit., p. 368. 
 
 Ubid. 
 
 ^Orders of the King's Bench in 1663 (ed. 1796, p. 48). 
 
 ^ This was, probably, yet another peculiarity of the Writ of Trespass. The 
 King could hardly demand a big fee for enforcing his own peace. 
 * North, op. cit., I. par. 147.
 
 348 A SHORT HISTORY OF ENGLISH LAW 
 
 Thus the Common Pleas was able to offer as equally cheap a 
 remedy as the King's Bench, combined with an equally potent 
 power of arrest on special bail. And thus the whole ostensible 
 purpose of the statute of 1661 was apparently defeated ; al- 
 though, owing to the obscurity of the quarrel, we cannot be quite 
 certain what happened.^ It is, however, satisfactory to find, 
 that repeated attempts were made by the legislature, even in 
 the eighteenth century, to ensure that the power of arrest should 
 not be exercised in trifling cases," that, in others, the plaintiff's 
 cause of action should be genuine,^ and that the defendant should 
 really understand the matter of the claim made against him.^ 
 The defendant was also, ultimately, allowed to pay money into 
 Court to abide the trial of the action, instead of giving bail.^ 
 Nevertheless, in spite of these mitigations, the oppressive power 
 of arrest on mesne process went on, without substantial check, 
 until the year 1838, when it was abolished in all cases,^ except 
 those in which it appears that the defendant is about to leave the 
 country to avoid meeting the claim against him.^ Meanwhile, 
 however, the ancient remedy of seizing the debtor's body in 
 satisfaction {Ca. Sa.) of a debt actually adjudged to be due, 
 remained untouched ; except so far as it was mitigated by al- 
 ternative remedies against the debtor's property. It was not 
 until the year 1869, that, on the overhauling of the Bankruptcy 
 laws, the power of imprisonment on civil process was entirely 
 swept away ; except in cases in which the debtors are deemed 
 to have been * fraudulent,' ^ or to be contemptuously resisting an 
 order to pay which they can, if they choose, obey.^ 
 
 Again, amid the thick darkness of the eighteenth century, 
 we see a point of light in the statute of the year 1731,^° which 
 English in enacted that the proceedings in all Courts in England 
 t e ourts gJ^Q^l^ \yQ conducted in English, and such of them as 
 were written should be written in ordinary legible hand, and not 
 in the medieval character known as ' court hand.' Needless to 
 
 ' North (ibid., par. 48) says that his brother left a MS. dealing with the whole 
 subject. So far as the writer knows, it has not been published. 
 
 2 12 Geo. I (172.5) c. 29, s. 1 (amended by 19 Geo. Ill (1779) c. 70). 
 
 3 Ibid., s. 2. ■• 5 Geo. II (1732) c. 27, s. 1. ' 43 Geo. Ill (1803) c. 46, s. 2. 
 ' .Judgments Act, 1838 (1 & 2 Vict. c. 110) s. 1. This section was re-enacted by 
 
 the Debtors Act, 1869, s. 6. ' Judgments Act, 1838, ss. 3, 4. 
 
 » Debtors Act, 1869 (32 & 33 Vict. c. 62) s. 4. 
 ' S. 5. (2). The 'contempt' is too often fictitious. 
 '"4 Geo. II, c. 26, s. 1.
 
 MODERN CIVIL PROCEDURE 349 
 
 say, there were not wanting in those days great men who foresaw 
 in the change the downfall of all things, including the legal 
 profession ; and who brought forward the quaintest arguments in 
 opposition to the proposal, one of the best known being the 
 contention, that the absence from legal documents of the quaint 
 barbarisms of the neo-Latin of the Year Books, would injure the 
 study of classical literature. When such arguments are gravely 
 put forward, one can hardly help indulging in an equally grave 
 doubt, whether those who adopt them have really any acquaint- 
 ance, either with classical literature or with legal forms. 
 
 Once again, and for the last time, we note in our survey of 
 legal history, the almost dead blank of the eighteenth century 
 Silence of ii^ the history of civil procedure. Save for the small 
 the Eight- reforms before noticed, the statute-book from 1710- 
 
 eenth _ ' _ 
 
 Century 1S30 yields scarcely a grain of harvest ; while the 
 Rules and Orders of Court, though they appear with some regu- 
 larity, are confined to small points of no special importance. A 
 Royal Commission to examine the scandalous abuses of the 
 Court of Chancery was appointed in 1826 ; but, as it was pre- 
 sided over by Lord Eldon, it is not, perhaps, surprising that it 
 should have developed into something like an apologia for that 
 nest of hoary abuses. Not until the year 1831 was any serious 
 attempt made to reform the Court of Chancery. But it will, 
 perhaps, be well to adhere to the order hitherto followed, and deal 
 first with the important changes in Common Law procedure 
 which took place in the years 1832-3. During those two years, 
 four important statutes dealing with the procedure of the Com- 
 mon Law Courts were passed, and must receive a few words of 
 notice. 
 
 The first of these, the Uniformity of Process Act, 1832,^ was 
 aimed at abolishing a very grievous scandal which had grown 
 Uniformity up from historical causes, but which now remained 
 of Process ^^ ^ ^^^^ oppression of the suitor, and a source of 
 profit to the unscrupulous official and practitioner. As we have 
 seen,' the gradual introduction of the various common law reme- 
 dies, and their distribution among the three Common Law Courts, 
 had given rise to great differences of procedure. Not only had 
 each action its appropriate process ; but, where the action might 
 
 1 2 Will. IV, c. 39. 2 Ante, pp. 169-174.
 
 350 A SHORT HISTORY OF ENGLISH LAW 
 
 be commenced in more than one court, this appropriate process 
 might be still further specialized by the Rules of the court actu- 
 ally chosen. The consequence was, that the way of the litigant 
 was beset with various traps ; some of them meaning death to 
 his action if he fell into them, others merely involving him in 
 expense to recover his lost ground. At one time, no doubt, these 
 differences had all had meanings ; but these meanings had long 
 disappeared and been forgotten, with the result, that the most 
 successful practitioner in the Common Law Courts was not the 
 man with the greatest grasp of principle, or the strongest sense 
 of justice, but the man with the memory for irrelevant details, 
 and the least scruple in making use of them. The practical 
 over-lapping of jurisdictions of these courts, which, as we have 
 also seen,^ was chiefly brought about by the manipulation of 
 these peculiarities of procedure, made it all the greater scandal 
 that the conduct of a Common Law action should resemble an 
 obscure game of chance, in which the rules were determimed by 
 forgotten authorities. 
 
 The Uniformity of Process Act, 1832,^ then, attempted to 
 provide that, with a few necessary exceptions, every Common 
 Law personal action should follow, mutatis mutandis, the same 
 steps, at least in all its initial stages. The first step was to be 
 a simple writ of summons stating briefly the nature of the action, 
 and requiring an appearance to be entered by the defendant 
 within a limited time. This writ was to be served personally on 
 the defendant;^ but, if personal service could not be effected, 
 the defendant might be distrained by the sheriff to compel his 
 appearance.'* Then came a momentous change from the old 
 superstitious rule that proceedings could not continue in the 
 defendant's absence. If the sheriff returned non est inventus and 
 nulla bona to the Distringas, the Court might allow the plaintiff 
 to enter an appearance for the defendant,'' instead of resorting to 
 the old cumbrous process of outlawry. Thus, the result of the 
 defendant's contumacy would be, that judgment would be given 
 against him in his absence. And thus the process of civil out- 
 lawry became reserved, practically, for cases on which the plain- 
 tiff was entitled to proceed to arrest the defendant for failure to 
 appear; and, as we have seen,® these cases were swept away by 
 
 > Ante, pp. 169-174. « 2 Will. IV, c. 39, s. 1. ' S. 3. 
 
 *Ibid. ''Ibid. '^ Ante, p. 348.
 
 MODERN CIVIL PROCEDURE 351 
 
 the Judgments Act, 1838.^ The Act of 1832 made special 
 provision ^ for the cases of defendants really (not fictitiously) 
 in custody in the Marshalsea or the Fleet, and for members of 
 Parliament entitled to privilege from arrest on civil process. 
 Various minor regulations connected with writs were added ; 
 and, as we have seen,^ a very useful Rule-making power was 
 conferred on the judges, for the purpose of giving effect to the 
 Act. It should, however, be carefully noted, that the statute 
 makes no attempt to abohsh ' forms of action ' ; i.e. as appears 
 by the Schedule of forms annexed to the Act, the plaintiff was 
 still bound to name his proper writ, and, if he chose the wrong 
 one, he was, presumably, non-suited as before. 
 
 The reform begun in the year 1832, in the initiatory proceed- 
 ings at common law, was carried much further with regard to 
 ^,.^y the later stages by the Civil Procedure Act of the 
 
 Procedure following year.^ Beginning ^ with a frank recognition 
 ^ ' ^ ^^ of the fact that the amendment of a subtle and com- 
 plicated piece of machinery, like the 'special pleading' system, 
 could not be undertaken by laymen, the legislature empowers 
 and requires the Common Law judges,^ within five years from the 
 passing of the Act, to produce a set of Rules and Orders, to be 
 approved by Parliament, for regulating common law pleadings, 
 especially with a view to diminishing delay, formalities, and ex- 
 pense. It then proceeds to abolish a number of surviving pro- 
 cedural anomahes, such as 'wager of law,'^ ' venue,' ^ and close 
 days,^ or holidays, on which no procedural steps could be taken, 
 to some of which reference has previously been made. It lays 
 down the rule^*^ limiting actions on sealed contracts (or 'special- 
 ties ') to a period of twenty years, penal actions to two years, and 
 several other kinds of claims to six years ^^ after the cause of 
 action arises. Finally, various procedural difficulties, which 
 really amounted to deprivation of rights, were specially abolished. 
 Thus, the rule that a right of action in Tort perished with the 
 
 ' 1 & 2 Vict. c. 110, s. 1. (Civil outlawry was formally abolished by the Civil 
 Procedure Acts Repeal Act, 1879, s. 3.) 
 
 2 Ss. 8, 9. 3 Ante, pp. 189, 190. ■« 3 & 4 Will. IV, c. 42. 
 
 ^S. 1. 6 Ibid. 'S. 13. 
 
 * S. 22. Before this time, 'a local' action (i.e. an action relating to land) could 
 only be tried in the county where the land was situated. 
 
 8 S. 43. 10 Ss. 3-5. 
 
 '* This was the normal time fixed for personal action by the Limitation Act, 1623 
 (21 Jac. I, c. 16). But the wording of that statute left many loop-holes.
 
 352 A SHORT HISTORY OF ENGLISH LAW 
 
 death of either party, was partially modified by the sections 
 allowing executors or administrators to sue^ in respect of recent 
 damage to the land of their deceased, and to be sued - for similar 
 damage done by their deceased or on simple contracts entered 
 into by him. Juries were allowed to award interest, in addition 
 to the principal debt, in certain cases ; even where it was not 
 specially stipulated for.^ The personal representatives of a 
 lessor were empowered to distrain, within six months of the de- 
 cease, for arrears falling due in the deceased's lifetime.'* 
 
 The judges of the Common Law Courts made some use of the 
 authority conferred on them by the Civil Procedure Act, 1833 ; 
 and, in the year 1834, produced a set of General Rules and Orders 
 for the conduct of pleadings in the superior Courts of Common 
 Law.^ They contain some reports of importance, of too tech- 
 nical a nature to be dealt with here. But they probably failed 
 to satisfy the ardent hopes of the reformers who framed the Act 
 of 1833 ; and it is with some suspicion that we read, in the pref- 
 ace to Mr. Joseph Chitty's edition of the following year, the 
 triumphant claim, that the new Rules have 'not occasioned any 
 material alteration either in the principles or the forms of plead- 
 ing.'^ A somewhat more drastic method of reform, though, as 
 the author of the book just referred to suggests, it might have 
 been 'annoying to an aged author,'^ would have been welcome 
 in the interests of justice. 
 
 The other two statutes referred to are mainly concerned with 
 a matter which is alwaj's of first-rate importance in legal pro- 
 cedure, and which has a direct effect on substantive law, viz. 
 restriction on the pursuit of ancient claims. We have seen 
 already, in this chapter,^ how the subject had been touched by the 
 Civil Procedure Act, 1833 ; but the provisions of the Real 
 Property Limitation Act, 1833, and the Prescription Act, 1832, 
 were found more sweeping. We take the former first, as dealing 
 with more familiar topics. 
 
 Theoretically, by far the most important clause of the Real 
 Property Limitation Act, 1833, is that which abolishes,^ at one 
 
 >S. 2. 
 
 2 S. 14. This was the last surviving shred of the 'tortious' character of Assump- 
 sit. As we have seen {ante, p. 140) it had really been abolished by judicial decision. 
 
 'Ss. 28, 29. «Ss. 37, 38. 
 
 ' Given in the Appendix to A Concise View . . . of Pleadings (2d ed. 1835), 
 by Joseph Chittv, pp. 39-58. 
 
 « P. iii ' Ibid. » Ante, p. 351. » 3 «t 4 Will. IV, c. 27, s. 36.
 
 MODERN CIVIL PROCEDURE 353 
 
 fell swoop, almost the whole ^ of the 'real' and 'mixed' actions 
 to recover land, which once were the pride and boast of English 
 Abolition lawyers. In fact, these actions had almost entirely 
 of Real ' disappeared, long before 1833;^ and when, in the 
 
 Actions , 
 
 period of grace allowed for the taking effect of the 
 Act, an attempt was made to revive them, the most eminent 
 practitioners displayed the grossest ignorance, even of the com- 
 mon terminology of the subject. Their true connection with the 
 main purport of the statute was, that the period within which 
 they could be brought had been limited by all sorts of conditions, 
 not necessarily effluxion of time ;^ while their disappearance left 
 the more modern procedure by Ejectment or Chancery action 
 without fixed limits of time. It is true, that the statute of 1623,* 
 formerly referred to, had prohibited any entry upon land after 
 twenty years from the time at which the right accrued ; but, as 
 the entry in Ejectment was purely fictitious, it could easily 
 be dated as at any time. 
 
 The main purport of the Real Property Limitation Act, 
 1833, is to be found in the second section, which provides that 
 New Time ^^ person shall make an entry or distress, or bring 
 Limit an action, or suit in Equity,^ to recover any land or 
 
 rent, after twenty years have elapsed since his right to do so 
 first accrued. Various special provisions are added for special 
 cases ; as where the claimant is under disability,^ or his interest 
 is by way of remainder or reversion,'^ right, and to meet the 
 difficulty occasioned by' tenancies of uncertain duration.^ 
 Even for cases of disability, however, the extreme limit is 
 forty years from the accrual of the right to bring an 
 action ; ^ except that patrons or incumbents of ecclesiastical 
 benefices are to have two incumbencies,^" or sixty years, and 
 that advowsons can be recovered at any time within three 
 incumbencies or sixty years. ^^ Two points should, however, be 
 
 1 The exceptions are the Writs of Right of Dower, Dower unde nihil habet, 
 Quare Impedit, and Ejectment. 
 
 2 They had been, of course, superseded by the action of Ejectment (ante, pp. 
 173-177). 
 
 5 The most general enactments on the subject appear to have been the 32 Hen. 
 VIII (1540) c. 2, and the 1 Mary, st. II (1553) c. 5. These statutes generally fixed 
 a limit of sixty years. 
 
 * 21 Jac. I, c. 16, s. 1 (3). ^ S. 24. 
 
 « S. 16. If the period has once commenced to run, a supervening disability 
 will not suspend it. ' S. 3. » Ss. 7, 8. » S. 17. 
 
 10 S. 29. " S. 36. (There is an extreme limit of 100 years.)
 
 354 A SHORT HISTORY OF ENGLISH LAW 
 
 carefully noted on the Act. The first is, that ' rent,' in the 
 main section,^ does not include the most common rent of all, 
 viz. rent-service ; it being the steady doctrine of the Courts that 
 no failure to enforce his rights can bar the right of a landlord 
 during the continuance of a term, or cause the statute to run 
 against him till its expiry.- The second is, that though, logically, 
 the Act is purely procedural, yet, in fact, adverse possession of 
 land for twenty years will, save in exceptional cases, confer a 
 positive title on the possessor. This result is due to section 34 
 of the Act, which provides that, with the expiry of the period 
 during which he has the right to bring an action, the title itself 
 of the claimaint shall be extinguished. For, if the former 
 owner may not disturb the possessor, the latter is, to all in- 
 tents and purposes, owner ; even though the Court may hesi- 
 tate to force his title on an unwilling purchaser. It should be 
 remembered, however, that, by a well-known decision of the 
 Judicial Committee, though an adverse possessor may hand on 
 his possession, even before maturity, by assignment, devise, or 
 inheritance,^ yet, if he abandons his possession, the right of 
 the true owner, and, consequently, the period of limitation, 
 begins de novo.^ 
 
 The period of limitation laid down by the Act of 1833 has 
 been further cut down by the amending Act of 1874 ° from 
 twenty years to twelve ; but the general scheme of the Act of 
 1833 remains untouched.^ 
 
 The Prescription x\ct, 1832, is concerned with those ' incor- 
 poreal hereditaments,' "^ which, not being susceptible of posses- 
 sion, cannot be acquired by entry. For the benefit of 
 persons who had de facto exercised such rights 
 without formal evidence of title, the common law had in- 
 vented the doctrine of ' immemorial user,' i.e. it allowed such a 
 claim to be raised either by a plaintiff or a defendant, by an 
 
 >s. 2. 
 
 2 Archhold v. Scully (1861) 9 H. L. C, at p. 375, per Lord Cranworth ; Walter v. 
 Yalden [1902] 2 K.B. 304. (Of course, s. 42 limits recovery of arrears of rent- 
 service.) 
 
 3 Asher v. Whitlock (1865) L.R. 1 Q.B. 1 ; Perry v. Clissold [1907] A.C. 73. 
 " Trustees and Executors Co. v. Short (1888) L.R. 13 App. Ca. 793. 
 
 ' 37 & .38 Vict. c. 57. 
 
 * A rather important recent amendment of s. 25 is s. 8 of the Trustee Act, 1888 
 (51 & 52 Viet. c. 59), which allows even trustees to plead the Statutes of Limitation 
 in certain cases. 
 
 ^ Ante, pp. 92-95.
 
 MODERN CIVIL PROCEDURE 355 
 
 allegation that the plaintiff (or defendant) and his ancestors, or 
 ' those whose estate he hath, had openly, peaceably, and of 
 right,' exercised the right claimed ' from the time whereof 
 the memory of man runneth not to the contrary.' But,, 
 inasmuch as, by the common law, such an allegation 
 meant, strictly, a claim of continuous user since 1189,^ 
 and as it became manifestly impossible to bring actual 
 evidence of such user the Courts used to allow a proof 
 of user for twenty years to raise a presumption of title. 
 This presumption was, at different periods, put in differ- 
 ent forms ; either as that of immemorial user, or that of a 
 ' lost grant.' But, in the former case, it was liable to be defeated 
 by equally artificial evidence, e.g. that, at some period after 
 1189, but more than twenty years before the action, the dom- 
 inant and servient tenements had been vested in one person, 
 who could not, of course, exercise a true servitude over his own 
 land, while juries sometimes shrank from declaring, on oath, the 
 existence of a grant which they knew did not, in fact, exist. 
 It was to remedy these defects, and not to do away with com- 
 mon law prescription, that the Prescription Act of 1832 - was 
 passed. Like another Act associated with the name of Lord 
 Tenterden,^ it is not free from verbal inaccuracies ; but its general 
 scheme is simple. It does not affect tithes, rents, or services,^ 
 nor (it is believed) franchises or customary rights.^ Advowsons, 
 too, as we have seen,^ fall under the Real Property Limitation 
 Acts, and not under the Prescription Act. With these exceptions, 
 however, the Prescription Act deals with easements and profits 
 under three heads, and provides that proof of continuous user 
 for certain periods, in the course of legal proceedings, shall have 
 certain definite legal consequences. Proof of the enjoyment of 
 the access of light to a building for twenty years, gives the claim- 
 ant an absolute title to the light as against all persons but 
 the Crown ; unless the objector can prove that the claimant 
 enjoyed it by virtue of a written agreement.^ Similar proof as 
 
 1 The date of the accession of Richard I, taken as the 'comniencement of legal 
 memory.' 2 2 & 3 Will. IV, c. 71. 
 
 3 Statute of Frauds Amendment Act, 1828 (9 Geo. IV, c. 14). * S. 1. 
 
 * Franchises are not mentioned. It is a little doubtful whether customary rights 
 are included (Mercer v. Denne [1905] 2 Ch. at p. 586). 
 
 ^ Ante, pp. 353-355. 
 
 ^ S. 3. (Presumably a written agreement consistent with the claim would not 
 invalidate it.)
 
 356 A SHORT HISTORY OF ENGLISH LAW 
 
 to any other easement, raises a presumption of title which cannot 
 be defeated merely by showing a commencement at some prior 
 period since the commencement of legal memory, though it may 
 be defeated in any other way.^ Proof of similar enjoyment of 
 such a right for forty years, will confer a title as against all 
 persons (including the Crown) ; unless there is a written agree- 
 ment against it.- As regards profits a inendre, these stand on 
 the same footing as easements other than lights ; except that the 
 respective periods of enjoyment are thirty and sixty years.^ 
 The recent decision of the House of Lords in Home and Colonial 
 Stores V. Colls, '^ has cut down the 'enjoyment' of light claimable 
 under the statute to the amount necessary for reasonable con- 
 venience ; though this conclusion is exactly contrary to the 
 words of the section. The Act can only be relied upon in sup- 
 port of enjoyment continued until within one year^ 'immediately 
 prior to the commencement of the suit or action in which it is 
 questioned ' ; enjoyment without litigation, therefore, confers no 
 title under the Act. For this, and other reasons stated, 'common 
 law prescription ' is by no means extinct ; and is, in fact, not 
 infrequently resorted to.^ Apparently, however, the Act of 
 1832 has abolished the necessity for suing in the name of the 
 owner of the fee, in all cases. ^ 
 
 In the year 1830, the very modest result of the Chancery Com- 
 mission of 1826, appeared in the shape of an Act to deal with 
 Chancery Commitments for contempt in not answering bills in 
 Reform Equity.^ The Court of Chancery had had the same 
 
 difficulty with contumacious defendants as the Courts of Common 
 Law; and, though it had dealt with them in a somewhat more 
 effective way than by the clumsy process of outlawry, it had 
 manifested the same tenderness, amounting almost to timidity, 
 in dealing with absentees. The elaborate provisions of the 
 Contempt of Court Act, 1830, seem really to amount mainly to 
 this : that if the Court is quite satisfied that the defendant has 
 either been served with the subpoena, or is deliberately evading 
 
 ' S. 2. 2 Ibid. 3 S. 1. 
 
 * [1904] A.C. 179. The foundation of the action is declared to be Nuisance, 
 not diminution of actual enjoyment. 
 
 '8. 4. (Interruption for lesH than a year does not count.) 
 
 « E.g. Hyman v. Van den Beryh [1908] 1 Ch. 167; Hulhcrt v. Dale (1909) 78 L.J. 
 Ch. 4.57 ; Whitmores v. Stanford [1909] 1 Ch. 427. 
 
 ' S. 5. 8 11 Geo. IV & 1 Will. IV, c. 36.
 
 MODERN CIVIL PROCEDURE 357 
 
 service, and is not labouring under any of the usual disabilities, 
 he may be proceeded against in his absence.^ There are also 
 elaborate rules for making the process of the Court effectual ; ^ 
 and the time for petitioning for a rehearing of a cause is limited 
 to six months.^ But nowhere in this Act, nor in the Act of 
 twelve years later,^ whereby, after the transfer to the Court of 
 Chancery of the equity jurisdiction of the Exchequer,^ certain 
 minor changes in the Chancery offices were made, is there any 
 evidence of a strong reforming hand. In fact, a good deal 
 of these last two statutes is taken up with providing liberal 
 compensation for the few dispossessed officials, and with creating 
 new offices. 
 
 The real period of reform in the superior Courts does not 
 begin until the year 1850, when, as the result of two Royal 
 Commissions, serious steps were taken to amend the procedure of 
 the higher tribunals. From that year onwards, we notice two 
 converging streams of statutes, having for their objects, not 
 merely the improvement, on existing lines, of the procedure of 
 the respective Courts, but the breaking down of what was, both 
 theoretically and practically, the greatest blot on the system of 
 English civil procedure, viz. the conflict of, or, at least, the separa- 
 tion between, Law and Equity. We have seen how this conflict 
 arose,^ and how, after some centuries of cautious preparation for 
 hostilities. Equity won a decisive victory at the commencement 
 of the seventeenth century.^ After the latter event, there was no 
 substantial doubt that, if the Court of Chancery determined to 
 alter a rule of law, it would succeed in doing so. But the manner 
 of doing it might be grievously slow, and intolerably costly to 
 the suitor. 
 
 Broadly speaking. Equity jurisdiction fell under three heads. 
 Under the first, it was 'exclusive,' i.e. Chancery (or the Ex- 
 chequer on its Equity side) dealt with the matter from beginning 
 'Exclusive' ^o end. This was the least vexatious, though not, 
 Equity perhaps, the least costly form of equity. It covered 
 
 such cases as trusts and (after the close of the seventeenth cen- 
 tury) the administration of the estates of deceased persons. 
 Under the second head. Equity's jurisdiction was ' concurrent,' 
 i.e. the suitor could get one class of remedies in Equity, and an- 
 
 iS. 3. 2S. 15. 'S. 6. <5 «& 6 Vict. (1842) c. 103. 
 
 *5 Vict. (1841) c. 5 « Ante, pp. 80, 163-166. ^ Ante, pp. 165, 166. ,
 
 358 A SHORT HISTORY OF ENGLISH LAW 
 
 other at Common Law ; but not both from either. He had, 
 therefore, to bring two processes, if he wished to obtain all his 
 'Concurrent' remedies. Or, again, it might be that a defendant, 
 Equity sued at law, would rely on a defence only available in 
 
 Equity. It would be necessary for him to file a separate bill in 
 Chancery, to restrain the proceedings at Common Law. Obvi- 
 ous examples would be in a case of contract ; in which the plain- 
 tiff sought both damages (the common law remedy) and a decree 
 of specific performance (the remedy of Equity) ; or in which a 
 defendant, sued at law, wished to set up the equitable defence 
 of 'undue influence.' Finally, under the third head, Equity 
 jurisdiction was ' auxiliary,' to that of Common Law ; as where 
 ' Auxiliary ' ^ plaintiff, unable to secure the right to inspect his 
 Equity opponent's documents in a common law action, filed 
 
 a supplementary ' bill of discovery ' in Equity. This was, of 
 course, a dilatory and costly process. 
 
 Thus the two streams of legislation to which reference has been 
 made had for their secondary objects (a) the bestowal of equi- 
 table powers on the Common Law Courts, (/;) the bestowal of 
 common law powers on the Court of Chancery ; in order to 
 prevent the waste and delay caused by the necessity of recurring 
 to rival jurisdictions. The former stream is represented by the 
 Common Law Procedure Acts of 1852, 1854, and 1860; the 
 latter by the Chancery Amendment Acts of 1852 and 1858. 
 Probably the successful establishment of the County Court sys- 
 tem, with its cheap and rapid procedure, in the year 1840,^ had 
 something to do with the progress of the transformation. 
 
 The Common Law Procedure Act, 1852,- is an enormously 
 long statute ; and only one or two of its leading provisions can 
 be alluded to. But these will serve to show that the spirit 
 of reform had got to work at last. The danger of being de- 
 Common f eated by the choice of a wrong ' form of action ' was 
 Procedure definitely abolished by the clause^ which provides, 
 ^^^^ that all personal actions shall be commenced by a 
 
 simple writ of summons, in common form, making no mention 
 in the body of it of any particular cause of action.'* But, further, 
 where the claim is for a mere debt or 'liquidated' sum of money, 
 the plaintiff, by endorsing 'special' ])articulars of his claim, 
 
 • 9 & 10 Vict. c. 95. * 15 & 16 Vict. c. 7C. 
 
 ' S. 2. * See form lu ached. A.
 
 MODERN CIVIL PROCEDURE 359 
 
 may save himself the costs of formal pleadings, by dispensing 
 with further particulars of demand ; and may, in the event of 
 the defendant not appearing, obtain summary judgment for 
 the amount of his claim. ^ The power of amendment, all through 
 the proceedings, is to be almost unlimited;^ and all kinds of 
 venerable technical rules, as to joinder of parties and claims,^ 
 'abatement' of writs,^ fictitious averments in pleadings, formal 
 production of documents (e.g. ' projert' and 'oyer' of bonds) ,^ 
 'express colour,'® form of pleadings in Contract and Tort respec- 
 tively,^ pleading of inconsistent pleas,^ and including several 
 matters in one plea,^ are abolished. With a view to saving 
 of expense, many unnecessary forms, such as the 'rule to 
 plead,' ^° and the elaborate steps taken to get together a jury,^^ 
 are declared unnecessary, and forbidden. The time for appealing 
 by way of ' error apparent on the record ' is reduced to six years.^^ 
 The action of Ejectment, which, as will be remembered, ^^ es- 
 caped the abolition of the 'real' actions in 1S33, is simplified; 
 only such differences from the ordinary personal action being 
 allowed as are rendered necessary by the fact that the proceedings 
 'savour of the realty.' Finally, with a view to rendering more 
 effectual injunctions and orders to stay proceedings, it is pro- 
 vided ^^ that the tribunal in which the proceedings sought to be 
 stopped are pending, shall take direct notice of the injunction 
 or order, by staying all further proceedings ; instead of keeping 
 up the fiction that the injunction or order is addressed merely 
 to the plaintift* and not to the court itself. 
 
 Contemporaneously with the Common Law Procedure Act, 
 1852, was passed another statute almost equally important. So 
 long as the Common Law officials were numerous, and paid by 
 fees, it was hopeless to expect that statutes having for their ob- 
 ject the simplification and cheapening of Common Law procedure 
 would have a fair field. Accordingly, by the Common Law 
 Courts Act, 1852,^^ the whole staffs of the King's Bench, Common 
 Pleas, and Exchequer were reorganized. Useless and hereditary 
 oflSces, such as those of the Marshals of the Court,^® the Chief 
 Proclamator of the Common Pleas, and the Usher of the Ex- 
 
 » Ss. 34-41. * Ss. 38-39. 
 
 T s. 74. '■ 8 S. 80. 
 
 "S3. 104-113. »*S. 146. 
 
 " 15 & 16 Vict. c. 73. " S. 1. 
 
 1 Ss. 25, 27. 
 
 « S. 36. 
 
 5 S. 55. 
 
 « S. 64. 
 
 » S. 81. 
 
 "Ss. 62, 82, 
 
 ^^ Ante, p. 353, n. 1. 
 
 " S. 226.
 
 360 A SHORT HISTORY OF ENGLISH LAW 
 
 chequer/ with the patronage attaching to them,- were aboHshed^ 
 and their nominal duties transferred to working officials.^ The 
 performance of duties by deputy,'' except in cases of actual dis- 
 ablement,^ was forbidden. Payment by fees was suppressed ; 
 and fixed salaries substituted for the officials retained.^ Finally, 
 the bad habit, which had clung like a pestilence to the adminis- 
 tration of justice for centuries, whereby officials of the courts 
 acted as the private advisers of litigants, was entirely forbidden ; ^ 
 this time, at last, with success. Perhaps the best testimony to 
 the effectiveness of the reforms of 1852 is the fact, that men of a 
 slightly later generation, familiar with the working of the courts 
 half a century after, find it difficult to believe that such abuses as 
 are plainly described by the legislation of that year, should 
 really have existed in the middle of the nineteenth century. 
 
 Considerable further progress in the reform of common law 
 procedure was made by the long Common Law Procedure Act, 
 1854 ;^ especially in facilitating the conduct of arbitrations under 
 the supervision of the Court,^ and the drawing up of agreed 
 statements of fact ('special cases') bj^ the parties or by an 
 inferior tribunal, for the opinion of the superior Court on the 
 questions of law involved.^° But the great merit of the Act of 
 1854 is, that it makes a decided advance in the direction pre- 
 viously described, of drawing together the jurisdictions in Law 
 and Equity. It will be recollected that, by Lord Brougham's 
 Act of 1851,^^ the parties to an action had recently been rendered 
 competent and compellable witnesses, with certain exceptions. 
 The new statute, accordingly, virtually introduces ^^ the machinery 
 of 'discovery' and 'interrogatories' into Common Law pro- 
 cedure, and thus renders the filing of a ' bill of discovery ' in 
 Equity unnecessary. The old and rather cumbrous remedy by 
 Mandamus, or positive order for the fulfilment of a quasi-public 
 duty, is extended to ordinary private liabilities ;^'' and the historic 
 unwillingness of the Common Law courts to order specific de- 
 livery up of a chattel claimed by the plaintiff, instead of merely 
 awarding damages, is at last swept away.'^ The power of the 
 Common Law courts to issue prohibitory injunctions at any 
 
 ' S. 22. s S. 23. 3 S. 32. " S. 30. ^ s. 6. « Ss. 12, 21. 
 
 'S. 11. ? 17 & 18 Vict. c. 125. ' Rs. 3-17. i» Ss. 4, 5. 
 
 " 14 & 15 Vict. c. 99, s. 2. •' .'^s. 46-55. 
 
 " Ss. 68-73. (This reform has not been particularly successful.) 
 " S. 78.
 
 MODERN CIVIL PROCEDURE 361 
 
 stage of the proceedings is declared in the most general terms ; * 
 and, perhaps most important of all, the defendant is empowered, 
 subject to the discretion of the Court, to plead, in a Common Law- 
 action, any defence which he might have set up in a Court of 
 Equity.- Thus, instead of having to resort to a separate suit 
 in Equity to restrain the Common Law^ action, the defendant in 
 that action gets a decision of the point, at much less expense, in 
 the original proceedings. 
 
 The Common Law Procedure Acts of 1852 and 1854 were 
 carried still further by the Common Law Procedure Act, i86o;^ 
 the two most noteworthy provisions of which were, that which 
 extended to the Common Law courts the powers long enjoyed 
 by Equity of giving relief against forfeiture of leases owing to non- 
 payment of rent or insurance premiums,"* and that which abolished 
 the few remaining ' real actions ' of Right of Dower, Dower 
 uncle nihil habet, and Quare impedit,^ and substituted for them 
 ordinary personal actions commenced by Writ of Summons. 
 But it is time that we turn now to the contemporary reforms in 
 Chancery procedure. 
 
 The first of these required the passing of no less than four 
 statutes in the year 1852. By the Court of Chancery Act,^ the 
 Ch c r venerable office of * Master in Ordinary ' was sw^pt 
 Amendment away,^ and provision made for the speedy winding 
 up of causes which hiad long slept in the security of 
 the Masters' chambers.^ ]Most of the more important duties 
 which had hitherto fallen to the disestablished officials were to 
 be performed by the Chancery judges ^ themselves, sitting in the 
 privacy of ' chambers ' ; ^^ and the rest by ' chief ' and sub- 
 ordinate clerks attached to each of the Chancery Courts. To the 
 layman, it might seem that this great change merely amounted 
 to the substitution of a Chief Clerk for a Master. Li reality, it 
 meant the entire abolition of a subordinate but semi-independent 
 jurisdiction; for the Chief Clerks,^^ though they perform rc- 
 
 I Ss. 79-82. 2 S. 83. ' 23 & 24 Vict. c. 126. " Ss. 1, 2. 
 
 5 S. 26. (The action of Quare impedit was brought to try the right to present to 
 a vacant ecclesiastical benefice.) 
 
 M5 & 16 Vict. c. 80. " S. 1. « Ss. 8, 10. 
 
 ' These had been recently increased to five, by the appointment of two additional 
 Vice-Chancexlors. '" Ps. 11-15. 
 
 " The ancient style of 'Master' has, in quite modern days (22nd February. 1S97) 
 been restored to these officials. But the ancient powers of the Masters have not 
 been revived. The title was, apparently, restored by mere administrative direction;
 
 362 A SHORT HISTORY OF ENGLISH LAW 
 
 sponsible duties, requiring the exercise of great technical skill, 
 are, avowedly, only the judges' deputies, and will readily give 
 any party desiring it an opportunity of taking the judges' opinion 
 on any point, however trifling. Even the expert opinion of a 
 new class of Chancery officials, the Conveyancing Counsel of 
 the Court, may be questioned by suitors, and referred to the 
 Court itself.^ Though the conduct of business under the new 
 system is not made the subject of detailed enactment in the 
 statute, the latter contains a section ^ requiring the Chancellor, 
 with the advice of two of the other Chancery judges, to make 
 General Rules and Orders for the conduct of 'chamber' business; 
 and this enactment was carried into effect on the 16th October, 
 1852.3 
 
 Meanwhile, however, the practice of the Court had been 
 made the subject of a long statute, the Chancery Amendment 
 Act, 1852.^ Its provisions are too technical to be set out here. 
 The most important changes made by the Act are the substitu- 
 tion of simple service of a copy of the bill, or initiatory complaint, 
 for the elaborate machinery of 'subpoena' and 'claim' which 
 had grown up around it,^ the abolition of the formal process of 
 'obtaining leave' to answer a bill,^ the power given to the plain- 
 tiff to move for a summary decree on facts admitted or not denied 
 by the defendant,^ and the corresponding power given to the 
 defendant to apply to dismiss a bill not duly prosecuted,^ the 
 introduction of oral testimony at the request of any party, in 
 place of the purely written interrogatories and depositions 
 hitherto used by the Court,^ the cutting down of objections for 
 * want of parties,' ^^ the power conferred on the Court, in a fore- 
 closure action, to order a sale of the mortgaged property instead 
 of a foreclosure,^^ and generally, to order a sale of any real estate 
 the subject of a suit,^^ and, finally, the abolition of the necessity 
 for sending a case for the opinion of a Common Law court, on a 
 point of common law which has arisen incidentally in the suit.^^ 
 
 and, presumably, it will have no effect on the statutory qualifications for the office 
 of MasLer of the Supreme Court, formerly attached exclusively to the Queen's 
 Bench Division. i Ss. 40-41. 2 g. 3^. 
 
 'Order entitled 'Proceedings at Judges' Chambers.' M5 & 16 Vict. c. 86. 
 
 ' Ss. 2-5. 6 s. 1.3. 7 S. 15. « S. 27. 
 
 ' S. 30. (But the evidence is to be taken by 'examiners,' not at the actual 
 hearing of the cause.) »o S. 42. " S. 48. ^^ S. 55. 
 
 '^ S. 61. (This provision was strengthened and made compulsory by a statute 
 of the year 1862.)
 
 MODERN CIVIL PROCEDURE 363 
 
 The Chancery reform legislation of 1852, comprised 'also 
 the Suitors' Funds Act/ containing elaborate rules for the 
 administration of the vast funds under the control of the Court, 
 and abolishing a host of offices with weird titles ; and, in the year 
 following, the legislation of 1852 was supplemented by three 
 additional statutes,^ only one of which, that which substituted 
 ordinary Commissioners for Oaths for the old Masters Extraordi- 
 nary in Chancery, is worthy of special reference. But the Chan- 
 cery Amendment Act, 1858,^ made an important change in the 
 direction of 'fusion' by empowering the Court of Chancery^ to 
 award damages in any case of contract or tort in which it had 
 power to give an equitable remedy by way of injunction or 
 decree of specific performance,'' and either in substitution for, or 
 in addition to, those equitable remedies. Inasmuch as practically 
 all civil actions are either actions for breach of contract or actions 
 on torts, and inasmuch as the Court of Chancery had long been 
 able, by virtue of its discretionary power, to grant injunctions 
 and decrees for specific performance, to deal with all actions on 
 contracts and torts, the Act might incautiously be read, or might 
 even, perhaps, have been fairly interpreted, to confer on the Court 
 of Chancery co-ordinate jurisdiction with the Courts of Common 
 Law in all common law actions. In fact, the statute was not so 
 interpreted. The Court of Chancery steadily declined to enter- 
 tain ordinary actions for damages on the ground that it had the 
 power (if it chose to exercise it) of granting injunctions and de- 
 crees of specific performance in such cases. In practice, it con- 
 tinued to entertain only suits substantially brought to obtain 
 equitable remedies ; and only in such cases, where the right, 
 or quasi-right, to an equitable remedy was clear, but there was 
 some special inconvenience in granting such remedies, did it 
 fall back on its statutory powers and award damages instead. 
 By a somewhat rash exercise of the revising broom, the statute 
 has been lately repealed ; ^ but it has since been judicially held 
 that the powers conferred by it on the Court of Chancery and 
 its successor, the High Court of Justice, still remain.^ To close 
 
 ' 15 & 16 Vict. c. 87. (The title is not official.) 
 
 2 16 & 17 Vict. c. 22 (examiners), 78 (Commissioners for Oaths), 98 (Suitors' 
 Funds). 
 
 3 21 & 22 Vict. c. 27. ^ S. 1. * S. 2. 
 
 ® Statute Law Revision Act, 1883, s. 3. 
 
 ' See the position of the statute, and the use to be made of it, elaborately dis- 
 cussed by the learned judges in the case of Sayers v. Collier (1884) 28 Ch. D. 103.
 
 364 A SHORT HISTORY OF ENGLISH LAW 
 
 this brief account of the reforms of the years 1850-60, it may be 
 mentioned that, in the latter year, an elaborate set of Con- 
 solidated General Orders of the High Court of Chancery,^ ranging 
 from 1556 to 1895, was issued by Lord Campbell, with the con- 
 currence of all the other Chancery judges. 
 
 Thus, at long last, as a visible emblem of unity was daily 
 growing in the new Palace of Justice then being erected in the 
 ^, Strand, half wav between the historic site of West- 
 
 The . *^ . . 
 
 Judicature minster and the historic centre of the commercial capi- 
 tal of the world, there began to grow up, in the minds 
 of reformers, the vision of a great and united Supreme Court of 
 Justice, with uniform principles, uniform law, and uniform pro- 
 cedure. With a curious indifference to the facts of history, some 
 of the most distinguished leaders of the new movement appeared 
 to draw their inspiration from the past, rather than the future. 
 Much was heard of an imaginary Curia Regis of ancient times, 
 which was supposed to have been a court of supreme and universal 
 jurisdiction, in which all the grievances of the subject were 
 redressed ; and earnest appeals were addressed to the world to 
 return to primitive simplicity and uniformity. Those who have 
 read the earlier chapters of this work will realize that, if those 
 chapters are at all a faithful picture, the facts were the exact 
 opposite of those imagined by the reformers who framed the 
 Judicature Acts ; that anomaly, privilege, multiplicity, and 
 narrowness of jurisdiction, not uniformity and simi)licity, were 
 the marks of the medieval system of justice. But it is not 
 the first time that the baseless visions of an imaginary Golden 
 Age have worked practical good ; and we need not be the 
 less grateful to the reformers of 1870, that their \iews of legal 
 history- were unsound. 
 
 It was in the year 1867 that a Royal Commission was appointed 
 ' to enquire into the operation and effect of the present con- 
 The Royal stitution of ' (the various Superior Courts in England 
 Commission ,^,^j Wales) . . . 'and into the operation and effect 
 of the present separation and division of jurisdictions between 
 the said several Courts.' The Commission made two reports. 
 The first is dated Lady Day, 1869. It is an admirably clear 
 and concise document, dealing with the organization of business 
 
 1 Published by Stevens & Sons, 1860.
 
 MODERN CIVIL PROCEDURE 365 
 
 and the procedure of the Superior Courts. The second, dated 3rd 
 July, 1872, made after an enlargement of the scope of the Com- 
 mission's enquiry, to include the Courts of Quarter Sessions and 
 the inferior courts, is marked by great differences of opinion, 
 whereas the first Report is almost unanimous. The recommen- 
 dations of the majority in the second Report virtually amounted 
 to a proposal for the incorporation of the County Courts as 
 inferior branches of the High Courts of Justice, the first or lower 
 stage of the proposed Supreme Court, and the consequent virtual 
 suppression of civil business at the local sittings, or Assises, of 
 the Superior Courts. These recommendations have never been 
 acted upon ; and need not here be further discussed. 
 
 The chief recommendations contained in the first Report of the 
 Royal Commission were five in number ; and they have since 
 been substantially carried out by one or more of the numerous 
 Judicature Acts ^ which have since been passed. 
 
 The first and most important recommendation was the union 
 of all the existing superior tribunals into one Supreme Court of 
 Judicature, organized into two stages, of first instance 
 Supreme and appeal. As we have previously seen, practically 
 the whole of the Superior Courts had become directly 
 royal tribunals ; there was, therefore, no question of abolishing 
 independent jurisdictions. But, owing to their history, they had 
 developed different procedures, and, to a substantial extent, actual 
 differences of law, and had, consequently, not infrequently 
 come into conflict with one another. In any case, it was some- 
 thing approaching a scandal, that different tribunals of co- 
 ordinate jurisdiction, professing to administer the same law and to 
 derive their authority from the same source, should thus differ ; 
 and the only way to conciliate rivalries was to incorporate them 
 in one body. This plan is actually carried out by sections 3-5 
 of the Judicature Act, 1873 ; " and the signs and symbols of the 
 union thus effected are to be found in the two cardinal rules 
 of the new system, that no objection for want of jurisdiction 
 can be taken in any branch of the Supreme Court,^ and that no 
 
 Judicature Acts of 1873, 1874, 1875, 1877, 1879, 1881, 1884, 1890, 1891, 1894, 
 1899, 1902, 1909, 1910. 
 
 ^ 36 & 37 Vict. c. 66. The position of the Palatinate Courts of Common Pleas 
 at Lancaster and Durham is a little peculiar. These courts are not incorporated 
 into the Supreme Court (s. 3) ; but their jurisdictions are transferred to the High 
 Court (s. 16). ^ S. 16.
 
 366 A SHORT HISTORY OF ENGLISH LAW 
 
 injunction or prohibition shall issue from any tribunal of that 
 Court to restrain any proceeding pending in any other.^ Thus, 
 though, to a superficial observer, the appearance of the names of 
 the old tribunals, as titles of the ' Divisions ' of the new High 
 Court of Justice, may appear to indicate a mere change of 
 name, the truth is very different. Though the Chancery Division 
 in practice still retains most of the business which would have 
 fallen to it had it continued to be the High Court of Chancery,^ 
 it does so only as a matter of convenience. Any branch or tribunal 
 of the High Court can exercise, not merely all the old powers of 
 Chancery, but also all the old powers of all the other tribunals 
 incorporated into the High Court ; so that, in words which are 
 the keynote of the statute, ' all matters so in controversy between 
 the said parties respectively may be completely and finally de- 
 termined, and all multiplicity of legal proceedings concerning 
 any of such matters avoided.' ^ 
 
 With one matter the Royal Commission dealt delicately ; 
 the first Judicature Act, boldly. It was not quite clear whether 
 The House ^^^" scope of the Commission's enquiry extended to the 
 of Lords highest appellate tribunals, viz. the House of Lords 
 Judicial and the Judicial Committee of the Privy Council, 
 
 ommittee rpj^^ Commission made it fairly clear, however,^ that 
 it would welcome the abolition of that surviving feature of medie- 
 valism which linked legislative and executive bodies to the judi- 
 cature. The statute of 1873 accordingly provided,^ that no 
 appeal should in the future be brought from any judgment or 
 order of any of the tribunals incorporated into the Supreme Court, 
 to the House of Lords or the Judicial Committee. But the Judi- 
 cature Act, 1873, did not take effect till November, 1875.® In 
 the interval, a change of Government occurred ; and an 
 amending Act of the latter year ^ restored the threatened juris- 
 dictions. The reversal of the policy of 1873 has been productive 
 of important results. Nearly all the decisions which, in recent 
 years, have provoked strong feeling, have been decisions either of 
 the House of Lords or of the Judicial Committee, which latter 
 tribunal is composed, practically, of the same persons as those who 
 
 1 S. 24 (5). 2 S. 34. 3 S 24 (7). * First Report, pp. 20-21. "* S. 20. 
 
 * It waa intended originally, to take effect in November, 1874 (s. 2) ; but this 
 clause was repealed by the Supreme Court of Judicature (Commencement) Act, 
 1874, s. 1. 
 
 ' Judicature Act, 1875 (38 & 39 Vict. c. 77) s. 2.
 
 MODERN CIVIL PROCEDURE 367 
 
 de facto exercise the appellate jurisdiction of the House of Lords.^ 
 These persons are not technically ' judges ' ; but ' lords of appeal ' 
 or members of the Judicial Committee, i.e. persons whose functions 
 are, at least partially, legislative and executive. It is not known 
 how far their lordships regard themselves as bound by the strict 
 rules of law in dealing with appeals ; certainly their position in 
 such matters, inherited as it is from remote history, is nowhere 
 legally defined in documents accessible to the public. 
 
 One other important point was involved in the first great propo- 
 sal of the Royal Commission. Though, doubtless, most of the 
 Conflicting differences in the rules administered by the different 
 Rules of courts incorporated by the Judicature Act had grown 
 out of differences of procedure, some of them had, in 
 effect, hardened into rules of law. Still, if different legal rules 
 are concerned with different subjects, the differences, though 
 ' inelegant ' (as a Roman jurist would have said) are not fatal 
 to practical harmony. Different rules of succession to real 
 and personal property have worked for ages in the same country 
 without serious inconvenience. But when difterent tribunals 
 apply different rules of law to the same subject-matter, then 
 the fate of a litigant obviously depends on his choice of tribunal ; 
 and, when all tribunals are fused, there must be some means of 
 deciding which rule is to prevail. 
 
 This was the object of the famous section 25 of the first Judi- 
 cature Act. It dealt with the chief cases in which the rules 
 of the incorporated courts differed on the same subjects ; and 
 decided between them. Thus, the rules of the Court of Bank- 
 ruptcy differed from those of the Court of Chancery in the 
 administration of insolvent estates; the rules of the Court 
 of Bankruptcy were, at least partially, adopted.^ The rules of 
 the Court of Chancery differed from those of the Common Law 
 Courts in many matters in which there was ' concurrent ' juris- 
 diction; the rules of the Court of Chancery were preferred.^ 
 
 ' Any member of the House has a right to attend and vote at the hearing of 
 appeal. But appeals may not be 'heard and determined' unless three Lords of 
 Appeals are present at the hearing and determination (Appellate Jurisdiction Act, 
 1876, s. 5). No lay peer has taken part in an appeal since 1883. 
 
 2 S. 25 (1), amended by s. 10 of the Act of 1875. Strictly speaking, there was no 
 conflict ; for the Court of Bankruptcy at that time only dealt with the estates of 
 living debtors, Chancery only with those of deceased debtors. But the ditTerences 
 were a scandal. 
 
 3 S. 25 (2)-(8).
 
 368 A SHORT HISTORY OF ENGLISH LAW 
 
 In the principle on which damages for collision between ships 
 were assessed, the rule of the Court of Admiralty differed from 
 that of the Common Law Courts ; the rule of Admiralty was 
 adopted.^ Finally, the section contains a general enactment ^ 
 that, in any conflict between the rules of Equity and those of 
 Common Law, ' with reference to the same matter,' the former 
 shall prevail. 
 
 Before leaving this central change of the judicial system, it is 
 necessary, even at the risk of being accused of boredom, for the 
 Law and historian to point out, that the Judicature Acts have 
 Equity still not dcstroved the distinction between Law and Equitv, 
 
 distinct . * . , ^ . ^ 
 
 even in relation to the same matters. Jbor obvious 
 instance, legal estates and equitable interests in the same land 
 can subsist comfortably side by side, and be governed by common 
 law and equitable rules respectively. Legal remedies are 
 still due ex debito justiticp, equitable remedies only ex gratia. 
 It is even true that, where no considerations of Equity forbid, 
 or, as it is put, ' where the equities are equal,' the strict rule of 
 Law is even superior to the rule of Equity.^ It is only where, 
 owing to a conflict between the rules of Law and of Equity, in 
 the same matter, it is necessary, if the equitable rule is to pre- 
 vail, that the common law rule should be set aside, that the 
 concluding clause of section 25 applies. 
 
 Only a few words can be given to the remaining, and less 
 important, recommendations of the Royal Commission. The 
 second aimed at the shortening of pleadings ; and 
 suggested, in effect, that, without the special leave 
 of the Court, these should never exceed three in number, viz. 
 (1) a brief statement of the plaintiff's claim, setting out the 
 material facts, but neither the evidence nor the arguments, (2) a 
 similar brief statement of the facts on which the defendant relies, 
 and (3) a reply, or joinder of issue, by the plaintiff. If the defend- 
 ant has any ground of action against the plaintiff, this should be 
 made the subject of a counter-claim, delivered with the defence. 
 Thus both claims could be tried in one action.^ This recom- 
 mendation was, virtually, adopted by the Act of 1873;^ and has 
 
 »S. 25 (9). «S. 25 (11). 
 
 3 Pitcher V. Rawlins (1872) L.R. 7 Ch. App. 260 (land) ; Joseph v. Lyons (1884) 
 15 Q.B.D. 280 (chattels). 
 
 < First Report, pp. 11-12. » S. 69 and Schedule, 18-24.
 
 MODERN CIVIL PROCEDURE 369 
 
 since been made the subject of Rules enacted in pursuance of 
 the statutory authority conferred by the Acts themselves.^ 
 
 The third recommendation of the Commission was the aban- 
 donment of the jury system as the sole, or, at least, the ideal 
 Jury method of trial of questions of fact. The Report 
 
 System pointed out that, owing to the increasing complexity 
 
 of legal business, there were many cases in which a decision of 
 fact by a judge, or, in complicated matters of account, by a 
 referee, was far preferable to the verdict of a jury. The Com- 
 mission proposed, in effect, that the plaintiff should be allowed 
 to choose, among these three, his own method of trial ; sub- 
 ject, in the case of objection by the defendant, to the discretion 
 of the Court.^ This recommendation was substantially adopted 
 by the Act of 1873 ; ^ and has been the subject of careful con- 
 sideration by the Rules. But the unfettered choice originally 
 proposed for the plaintiff has been, in effect, substantially re- 
 stricted by the last named authority.'* The plaintiff or the de- 
 fendant may insist on a trial by jury in cases of slander, libel, 
 false imprisonment, ' seduction,' or breach of promise of marriage ;^ 
 but the Court may direct a trial without a jury of any question of 
 fact which, before the Act, could have been tried without a jury, 
 as well as any matter requiring any prolonged examination of 
 documents or accounts, or any scientific or local investigation.® 
 As a matter of practice. Chancer}', in spite of statutory powers, 
 rarely employed the jury system ; and this practice is confirmed 
 by the Rules, which forbid the trial by jury of any matter as- 
 signed by the Act of 1873 to the Chancery Division — except 
 upon a judge's order. "^ 
 
 The fourth recommendation of the Royal Commission con- 
 templated little change in the existing practice. Owing to the 
 enactments previously noticed,^ almost all testimony 
 (including that in the Probate, Divorce, and Admiralty 
 Courts) was, in 1869, given orally at the trial. Only in Chancery 
 the practice "of taking evidence out of Court before ' Examiners ' 
 continued. It was proposed to adapt the Equity practice to 
 
 1 O. XIX. The Rules have also introduced the practice of obtaining summary- 
 judgment without pleadings, on a 'specially endorsed' writ (O. XIV). 
 
 2 Report, pp. 12-13. ' g. 56. ^R. S. C. XXXVI. ''R. 1. 
 « R. 3. These matters are usually tried by the Official Referees attached to the 
 
 Court under ss. 57 and 83 of the Act of 1875. 
 
 7 R. 3. 8 jinte, pp. 343, 344.
 
 370 A SHORT HISTORY OF ENGLISH LAW 
 
 that of the other Courts ; ^ and this proposal was accepted by 
 Parhament, subject to the reservation, that evidence on inter- 
 locutory application might continue to be given by affidavit. 
 The Act of 1873, however, contained a provision that, even on 
 such occasions, a witness might, on the application of either 
 party, be ordered to attend for cross-examination.^ 
 
 The fifth recommendation of the Royal Commission vras 
 concerned with the sittings of the Court. Originally these were 
 Terms and confined to four short 'Terms,' fixed by the ecclesias- 
 Sittings ^j^^al calendar. But, as legal business grew, more 
 
 and more cases were disposed of outside these strict limits ; 
 and thus the ' sittings ' of the Courts became much more ex- 
 tensive than the legal 'Terms.' IMoreover, it was one of the 
 few advantages of the cumbrous and antiquated system of 
 Commissions, under which ordinary jury cases were tried, that 
 there were no time limits to these trials ; the King, though he 
 was bound by statute to send judges or commissioners on circuit 
 at least so many times a year, could (within wide limits) choose 
 his own time for sending them. 
 
 The Royal Commission in effect proposed,^ that the sittings 
 of the Court should constitute Terms ; in other words, that all 
 kinds of legal business should be capable of transaction at any 
 time when the Courts were sitting. Further than that, the 
 Commission made a most important recommendation, to the 
 effect that, as regards the heavy business of the metropolitan 
 area, in place of the existing system by which each of the three 
 Common Law Courts held separate Nisi Prius sittings in London 
 and Middlesex three times a year, there should be a common 
 system of continuous sittings throughout the legal year for the 
 Home Counties, in which all common law actions should be 
 entered on a single list, and disposed of in rotation by as many 
 judges as should be necessary, or could be spared, for the purpose. 
 Even during the holding of the circuits, there were to be at least 
 two Nisi Prius Courts sitting in London. Finally, the Commis- 
 sion recommended that the Home Circuit, as a separate entity, 
 should be abolished altogether ; its criminal work being absorbed 
 by the Central Criminal Court established in 1834,"* and its 
 
 » Report, p. 14. ^ Ss. 36, 37. ^ Yhst Report, pp. 15-16. 
 
 * By the Central Criminal Court Act, 1834 (4 & 5 Will. IV, c. 36) for a metro- 
 politan area carved out of the Home Counties. It sits twelve times a year for the 
 decision of heavy criminal cases.
 
 MODERN CIVIL PROCEDURE 371 
 
 civil business being absorbed by the Nisi Prius Courts for INIiddle- 
 sex. 
 
 Most of these recommendations were adopted by Parliament, 
 and appear in the Judicature Act, 1873. By that Act, the year 
 is divided into Sittings and Vacations ; and, for purposes of 
 Court work, 'Terms' cease to exist. ^ Continuous sittings in 
 London and ^Middlesex are provided for ; and the formerly inde- 
 pendent and fleeting Courts created by the opening of circuit 
 commissions are, in effect, made branches of the Supreme Court.^ 
 But the ancient system of issuing special commissions for each 
 sitting on assise or circuit is not disturbed ; ^ and the proposal 
 to abolish the Home Circuit is not adopted. A greater flexibility 
 in the circuit system was rendered possible by the amending 
 Judicature Act of 1875, which ■* empowered Her Majesty, by 
 Order in Council, to fix the dates, seasons, and places for the 
 holding of assise cases. But the somewhat hesitating sugges- 
 tions of the Commission ^ for a re-arrangement of the basis of the 
 circuit system were not adopted ; and the reform of that system 
 remains one of the most pressing needs of the present day. 
 
 Mention has, incidentally,^ been made of the 'County Courts' 
 established in the nineteenth century for the local decision of 
 County disputes in small matters. The need for such tri- 
 
 Courts bunals had been felt ever since the virtual disappear- 
 
 ance of the ancient local courts of the shire and the Hundred, 
 and the Courts Merchant of the chartered boroughs, at the close 
 of the Middle Ages. These ancient courts had, as we have 
 seen, been virtually destroyed by the rivalry of the circuit- 
 system. But the machinery of the circuit-system was alto- 
 gether too costly for the settlement of small disputes ; and, 
 w^hen business of this kind increased, with the increase of wealth 
 and population, in the eighteenth century, the corresponding 
 need for cheap and speedy justice was met by the establishment, 
 as occasion or urgency demanded, of special local tribunals, 
 usually by virtue of private Acts of Parliament.'^ But this 
 system, if system it can be called, was thoroughly bad. In 
 
 ' S. 26. (There are still a few dates regulated by the old Terms ; and thej' are 
 enshrined in the prandial arrangements of the Inns of Court.) 
 
 2 S. 29. 3 Ibid. ■• 38 & 39 Vict. c. 77, s. 23. 
 
 6 First Report, p. 17. « Ante, p. 365. 
 
 ' A list of the tribunals will be found in the Schedule to the County Courts Act 
 of 1846.
 
 372 A SHORT HISTORY OF ENGLISH LAW 
 
 spite of a hesitating attempt in the year 1754 ^ to introduce 
 something like uniformity, these 'Courts of Request' or 'Con- 
 science,' as they were commonly called, remained, for nearly 
 another century, a mass of anomalous and isolated units, each 
 governed by its own rules, and strictly limited in scope to a 
 particular area. 
 
 In the year 1846, however, a great and successful attempt 
 at reform was made. By a statute of that year,^ and Orders in 
 
 , „ ^ Council thereunder, the whole of England and Wales 
 Act of 1846 , . ( . . , r . , , 
 
 was mapped out into circuits, each provided with 
 
 one (or, in rare cases, two), professional judges, and subdivided 
 into 'districts,' each provided with a Court for the decision of 
 cases involving limited amounts. Each judge visits the Courts 
 within his circuit at frequent intervals, and disposes of cases 
 awaiting trial, in a summary manner.^ Generally speaking, 
 though subject to certain exceptions, a case must be tried in 
 the district in which it arises, or in which the defendant lives. 
 The jurisdiction of the County Court, which was limited by the 
 statute of 1846 to £50 for ordinary 'Common Law' business, 
 and £500 in 'Equity' matters, has, by a later statute of 1903,* 
 been increased to a limit of £100 in the former class; and there 
 is power in the High Court to remit compulsorily any action 
 within this limit for trial in a County Court, and even, if the 
 plaintiff will not give security for costs, to remit any action of 
 Tort where the defendant is prepared to swear that the plaintiff, 
 if defeated, cannot pay costs. ^ Certain special kinds of cases, 
 e.g. libel, slander, seduction, and 'breach of promise,' are ex- 
 cluded from the jurisdiction of the County Court.® On the 
 other hand, subject to these exceptions^ any Common Law case, 
 however important, may, by consent of the parties, be tried in a 
 County Court.^ 
 
 ' 27 Geo. II, c. 16. (The act is an admirable example of the 'omnibus' type 
 of the eighteenth century. It deals with the destruction of turnpikes, the exten- 
 sion of the powers of the Trustees of the British IMuseuin, the fees of Justices' 
 Clerks, the offences of waggoners, and other miscellaneous matters.) 
 
 ' 9 & 10 Vict. c. 95. (It has been repealed, but largely re-enacted, by the County 
 Courts Act, 1888, at present the chief authority on the subject.) 
 
 ' It is possible for the judge to order, either upon or without the request of a 
 party, a trial by jury. But such cases are rare ; antl, in any event, there are no 
 pleadings. 
 
 * 3 Edw. VII, c. 42 (County Courts Act, 1903). 
 " Act of 1888, 83. 65, 66. 
 
 • S. 56. 7 S. 64.
 
 MODERN CIVIL PROCEDURE 373 
 
 In addition to its ordinary 'Common Law' and 'Equity'' 
 business, a County Court specially selected by Order in Council 
 Admiralty ^^ ^^^ ^^ Parliament for the purpose, may exercise 
 ^^d^Bank- Admiralty jurisdiction up to £300 (if the claim is for 
 Jurisdiction towage, necessaries, or wages, only up to £150),^ and 
 bankruptcy jurisdiction up to any amount.^ Moreover, there 
 has been a tendency in recent years to throw upon the County 
 Court judges a large amount of quasi-judicial or administrative 
 business. Thus, they may be called upon to decide disputes 
 under the Friendly Societies Act, and to assess compensation 
 as arbitrators under the Agricultural Holdings Acts and the 
 Workmen's Compensation Act. Li the latter respect, their 
 functions are of great and growing importance. 
 
 Finally, a few words must be said about the uninteresting 
 but important subject of bankruptcy jurisdiction, or the process 
 Bankruptcy ^y which the property of an insolvent debtor is 
 Procedure realized for the benefit of his creditors, in proportion 
 to their proved claims. 
 
 Whether or not any informal bankruptcy process existed at 
 the common law, or was practised in any of the old local courts 
 administering the Law Merchant, it seems impossible at present 
 to say ; but the former alternative, at least, is unlikely. The 
 essence of bankruptcy proceedin-gs is, that all creditors shall be 
 paid rateably ; and, with the machinery for enforcing individual 
 debts which was available in the King's Courts from the thir- 
 teenth century onwards, it is unlikely that any customary process 
 would have sufficed to restrain the individual creditor from 
 Statutes of stealing a march upon his fellows. But the statutory 
 Henry VIII process begins so far back as the year 1542, when 
 an ' Act against such persons as do make Bankrupt ' was passed 
 by Henry VIH's Parliament.^ This statute adopts a sharp 
 way with offenders ; empowering a quorum of certain high 
 officials (Chancellor, Treasurer, President of the Council, Privy 
 Seal, and the Chief Justices) to ' take such order ' with their 
 bodies and property (lands as well as chattels) as shall be neces- 
 sary to pay all their debts in full, or, at least, rateably. Of the 
 familiar features of modern bankruptcy process, we notice 
 
 ' County Courts Admiralty Jurisdiction Act, 1868, ss. 2, 3, 5. (By consent 
 the amount may be unlimited.) 
 
 2 Bankruptcy Act, 1883, ss. 92, 95-100. 3 34 & 35 Hen. VIII, c. 4.
 
 374 A SHOUT HISTORY OF ENGLISH LAW 
 
 already, in the Act of Henry VIII, the power to summon and 
 examine persons beheved to be conceahng property of the bank- 
 rupt,^ to deal with fictitious or collusive claims against the 
 bankrupt,- and to punish absconding debtors.^ But the remedies 
 of the creditor were only to be suspended, not extinguished, by 
 the bankruptcy. The debtor was to remain legally liable, as 
 before, for the unpaid balances of all his debts."* 
 
 The statute of Henry VIII was not, in terms, confined to 
 merchants. But it appears to have been so regarded in prac- 
 And Eliza- ^^^^ ' ^^^ ^^^^ ^^ ^^^ ^^^^ cares of the statute of Eliza- 
 beth beth is to define the class of merchants capable of 
 being made bankrupt.'' This statute marks a great advance in 
 the development of bankruptcy procedure. It carefully enu- 
 merates^ 'acts of bankruptcy,' i.e. such acts of a debtor as will 
 justify the Court in commencing bankruptcy process against 
 him. It provides "^ that the bankrupt and his property shall 
 be handed over to a body of 'Commissioners' appointed by 
 the Lord Chancellor under the Great Seal, who are to realize 
 the property for the benefit of the creditors, and are, for that 
 purpose, invested with large powers, both over the bankrupt 
 himself, and persons suspected of colluding with him.^ Property 
 acquired by the bankrupt after the commencement of the bank- 
 ruptcy is likewise to be made available, through the Commis- 
 sioners, for the payment of his debts.^ A bankrupt failing to 
 surrender himself to his Commissioners after due proclamation, 
 is to be deemed an outlaw ; and any one sheltering him is to be 
 liable to fine or imprisonment.^" 
 
 An amending statute of the year 1603 introduced ^^ the now 
 important feature of the formal 'examination' of the bank- 
 rupt as to the conduct of his affairs, and made an important 
 relaxation in the medieval rule against the assignment of choses 
 in action,^- by allowing debts due to the bankrupt to be sold by " 
 his Commissioners.^^ In 1662 it was deemed necessary, in con- 
 sequence of the decision in Sir John Wolstenholme's Case, de- 
 livered by the Upper Bench in 1653, to pass a statute ^^ declar- 
 ing that shareholders in the privileged East India and Guinea 
 
 1 34 & 35 Hen. VIII, c. 4, s. 2. « Ibid., ss. 3, 4. ' Ibid., a. 5. 
 
 *Ibid.,s.6. M3 Eliz. (1570) c. 7, 3. 1. ^ Ibid. ^ S. 2. « Ss. 5, 6. 
 
 • S. 11. " S. 9. " 1 Jac. I, c. 15, s. 6. " Ante, p. 294. 
 
 w 1 Jac. I, c. 15, s. 13. " 13 & 14 Car. II, c. 24.
 
 MODERN CIVIL PROCEDURE 375 
 
 joint-stock Companies should not, merely as such, be liable to 
 
 become bankrupt. 
 
 The early eighteenth century is remarkable for the first sign 
 
 of any relenting from the pitiless severity of its predecessors 
 
 . , . . towards the unfortunate merchant. A statute of the 
 
 Act of Anne _ , . 
 
 year 1705 '■ permits an allowance for mamtenance to 
 
 be made to a bankrupt who duly surrenders, and, even more 
 
 important, grants him his 'discharge' from all debts owing at 
 
 the commencement of his bankruptcy.^ A significant provision 
 
 of the same statute also forbids any allowance for 'eating or 
 
 drinking' of the Commissioners or other persons at meeting of 
 
 creditors.^ 
 
 Apparently, however, this leniency was not without its dan- 
 gers ; for we notice a distinctly severer tone in the next great 
 Statute of bankruptcy statute, passed in 1732.^ This Act 
 1732 seems even to hint that people deliberately 'brought 
 
 on' their own bankruptcies for the sake of getting rid of their 
 liabilities ; and it both increases the list of bankruptcy offences,^ 
 and extends the definition of persons liable to be made bank- 
 rupt.^ The bankrupt is not to obtain his discharge, unless a 
 certificate of due compliance with the law is furnished b}^ his 
 Commissioners, with the consent of four-fifths of the creditors, 
 to the Lord Chancellor.^ The Act of 1732 is also interesting as 
 introducing^ the institution of the 'assignee,' appointed at 
 first by the Commissioners, afterwards by the creditors, to give 
 closer attention to the affairs of the bankrupt than was possible 
 for the Commissioners. 
 
 The consolidating and amending Bankruptcy Act of 1825 ^ 
 does not contain any features of startling novelty ; though 
 mention may be made of the preferential payment 
 of workmen's wages,^° the power given to the Com- 
 missioners to 'bar' the estates tail of the bankrupt,^^ and to 
 nine-tenths in value of the creditors to accept a 'composition' 
 from the debtor in lieu of continuing the bankruptcy proceed- 
 ings,^^ and the limitation of the landlord's right to distrain on 
 
 '4 & 5 Anne, c. 4 (or 4 Anne, c. 17). " S. 8. 3 s. 21. 
 
 ^ 5 Geo. II, c. 30. » S. 1. « S. 39 (bankers, brokers, and factors). 
 
 ' S. 10. 8 S. 30. 9 6 Geo. IV, c. 26. i" S. 48. 
 
 1' S. 65. The preceding section seems to contain a foreshadowing of the policy 
 afterwards adopted in the Act for the Abolition of Fines and Recoveries. 
 12 S. 133.
 
 376 A SHORT HISTORY OF ENGLISH LAW 
 
 the bankrupt's goods to one year's arrears of rent.^ But a 
 radical change in the machinery of bankruptcy administration 
 took phice in 1831,- when the formerly independent groups of 
 Commissioners gave way to a Court of Bankruptcy with a 
 Chief and three * puisne ' judges, of whom three were to act as 
 a Court of Review or appeal, and a staff of subordinate ' Com- 
 missioners ' acting under the 'fiat' of the Court.^ There can 
 be little doubt that the system of independent Commissioners 
 was thoroughly bad ; but it may be doubted whether the scheme 
 of 1831 was a great improvement upon it. For the Act of 1831 
 saddled upon the country not merely the judicial staff of the 
 new Court, and the London and country Commissioners, but a 
 staff (not to exceed thirty) of ' official assignees,' ^ to assist the 
 * creditors' assignees ' appointed under the statute of 1732. 
 However, in 1842,^ the country Commissioners were abolished, 
 and country bankruptcies removed to the local District Courts 
 set up under the Act. The same statute ^ took away the power 
 of the creditors to veto the grant of the debtor's discharge, and 
 left the latter entirely to the discretion of the Court. 
 
 In the year 1847 came a curious and, apparently, inconsistent 
 statute.^ On the one hand, it abolished^ the ' Court of Review * 
 set up in 1825, as well as the office of Chief Judge ; 
 *^ ° ^ transferring its jurisdiction to a Vice-Chancellor to 
 
 be designated by the Lord Chancellor for the purpose.^ It 
 also transferred the jurisdiction of the ' District ' or local Bank- 
 ruptcy Courts set up under the Act of 1842 to the new^ly-estab- 
 lished County Courts. ^° On the other hand, it established a 
 new Court for the Relief of Insolvent Debtors,^^ i.e. for the 
 benefit of those insolvent non-mercantile persons who, though 
 incapable of being made bankrupt, were yet able, by surrender- 
 ing their property, to escape imprisonment for debt, under the 
 provisions of an Act of the year 1809.^^ 
 
 ' S. 74. M & 2 Will. IV, c. 56. 
 
 3 1 & 2 Will. IV, c. 56, s. 1. * S. 22. 
 
 ' 5 & 6 Vict. c. 122, ss. 46, 59. « S. 39. 
 
 MO & 11 Vict. c. 102. 8 Ss. 1, 2. 
 
 ' On the establishment of the Court of Appeal in Chancery, in the year 1851, 
 the appellate jurisdiction in Bankruptcy was transferred to the Lords Justices 
 then created (14 & 15 Vict. c. 83, s. 7.) 
 
 >« 10 & 11 Vict. c. 102, s. 4. 
 
 " Ibid. 
 
 " 49 Geo. Ill, c. 115. The process had been improved by the Judgments Act, 
 1838.
 
 MODERN CIVIL PROCEDURE 377 
 
 In 1849 came another great consolidating statute,' without 
 substantial change in principle. True that it continues the 
 Act of 1849 J^endencyr previously begun, of eliminating quasi- 
 independent Commissioners. But in other respects 
 it does not seriously depart from the scheme of 1S25 ; though 
 it further enlarges the definition of a ' trader,' ^ adds failure to 
 comply with a (Debtor's) Summons to the list of ' acts of bank- 
 ruptcy,' ^ and introduces ^ the rule by which the creditors' 
 representative is entitled to ' disclaim ' a lease or other con- 
 tinuous obligation of the bankrupt, so as to capitalize at once 
 all claims in respect of it. 
 
 The first of the modern Bankruptcy codes may be said to be 
 that of 1861.^ It abolished the fundamental distinction, which 
 had existed so long, between the trader and the non- 
 trader, and made every adult person (other than a 
 married woman) liable to be declared bankrupt.^ As a natural 
 consequence, it also abolished the Court for the Rehef of Insol- 
 vent Debtors ; ^ and put the crown on a tendency, long manifest, 
 by doing away with ' Commissioners ' and transferring the con- 
 trol of the creditors' assignees to the Registrars of the Court.^ 
 It added a further safeguard against abuse of bankruptcy process 
 by placing conditions on the grant of an order of discharge. '° 
 
 The Bankruptcy Act, 1869, however, manifested a distinct 
 
 reaction against the tendency to keep a tight official hand on 
 
 the administration of a bankrupt's estate. The policy 
 
 Act,ofi869 p ^„^^ ,. , ,. / 
 
 or l5b9 was to entrust every thmg to the creditors m 
 
 the belief that motives of self-interest would produce efficiency. 
 The ' official assignee ' of the Court was entirely abolished,'^ in 
 favour of the creditors' assignee, or * trustee,' who was to be 
 supervised by a Committee of Inspection, elected by the credi- 
 tors from among their own number.'- To prevent undue leniency, 
 however, further restrictions and limitations were placed'^ on 
 the grant of the bankrupt's discharge. The Act of 1869 is, 
 further, important as introducing the well-known 'voluntary 
 settlement' clause,''* by virtue of which voluntary dispositions of 
 property, even though perfectly bond fide, are set aside as of 
 course, if the settler's bankruptcy follows within a limited time. 
 
 > 12 & 13 Vict. c. 106. 2 S. 7. ' S. 65. * S. 78. 
 
 5 S. 145. « 24 & 25 Vict. c. 134. ' S. 69. « g. i. 9 S. 4. 
 
 i°S. 159. " 32 & 33 Vict. c. 71, s. 14 (1). ^'^ Ibid. (3). " s_ 43, 14 s. 91.
 
 378 A SHORT HISTORY OF ENGLISH LAW 
 
 In that Act, however, the settlement clause only applied to a 
 trader. The Act also contained ^ an elaborate scheme of volun- 
 tary ' liquidation by arrangement,' by which creditors might, if 
 they pleased, dispense entirely with the assistance of the Court, 
 as well as a renewal of the policy of 1825, by which, after the 
 passing of an ' extraordinary ' resolution, duly confirmed, the 
 creditors might simply accept a ' composition ' offered by the 
 debtor, without further process.^ 
 
 Unfortunately, however, the confidence in enlightened self- 
 interest manifested by the Act of 1869, did not prove to be 
 entirely justified. In fact, the psychology of its framers was at 
 fault. They failed to realize, that a busy tradesman or pro- 
 fessional man would far rather ' write off ' a moderate loss, and 
 have done with it, than waste time in attending creditors' 
 meetings or investigating his debtor's accounts. The inevitable 
 consequence of this fact was, that, under the Act of 18G9, bank- 
 ruptcy proceedings tended to fall entirely into the hands of 
 lawyers and accountants, whose zeal for despatch and economy 
 was apt to wane, in the face of indifference on the part of those 
 who should have been their constant critics. Accordingly, in 
 the year 1883, INIr. Joseph Chamberlain, then President of the 
 Board of Trade, determined upon a radical change of policy ; 
 and the statute of that year is as remarkable for its insistence 
 on State control as was its predecessor of 1869 for its confidence 
 in laissez-faire. 
 
 By virtue of the Bankruptcy Act, 1883,^ and its amendment 
 of 1890,'* as soon as a bankruptcy petition is presented against a 
 Acts of 1883 debtor, a ' receiving order ' may be made by the 
 and 1890 Court, which wdll entitle the Official Receiver of the 
 Board of Trade to assume control, in the interest of the credi- 
 tors, of all the debtor's property.^ Of course, if, on the hearing 
 of the petition, it is dismissed, the receiving order will be can- 
 celled ; but its value to the creditors, as a precaution, can 
 hardly be over-estimated. On adjudication, the property (pres- 
 ent and future) of the bankrupt (as he now is) vests in the 
 OflBcial Receiver,® unless and until a trustee is appointed by the 
 
 1 S. 125. * S. 126. 3 46 & 47 Vict. c. 52. 
 
 * 53 & 54 Vict. c. 71. ' Act of 1883, s. 5. 
 
 ' Owing to a series of somewhat inconsistent decisions of the Courts, while free- 
 hold property coming to the bankrupt {New Land Development Assocn. v. Gray
 
 MODERN CIVIL PROCEDURE 379 
 
 creditors ; and the summoning and direction of creditors' meet- 
 ings, and the conduct of the debtor's examination, are largely 
 in the hands of the same official, acting under the supervision 
 of the Registrar of the Court. ^ Further, the Board of Trade is 
 charged, not only with the appointment and control of Official 
 Receivers, who are its servants, but with the audit of trustees' 
 accounts,^ the removal of incapable, defaulting, or misbehaving 
 trustees,^ and the appointment of trustees in those cases in 
 which the creditors fail to appoint.^ Other noticeable features 
 of the Act of 1883 are, the provision for the expeditious con- 
 duct of ' small bankruptcies,' ^ and, of the Act of 1890, that 
 for the actual winding up in bankruptcy of the estates of deceased 
 insolvents,^ and severe restrictions on the granting and opera- 
 tion of an order of discharged Notwithstanding all these pre- 
 cautions, the working of bankruptcy procedure still leaves much 
 opening for criticism; and new legislation is believed to be 
 contemplated. 
 
 [1892] 2 Ch. 138) vests at once in his trustee, leaseholds and other property do not, 
 until claimed by the trustee, at any rate in favour of bond fide purchasers for value 
 from the bankrupt (Cohen v. Mitchell (1890) 15 Q.B.D. 262). 
 
 1 Act of 1883, s. 99. (The old Court of Bankruptcy was, by the Act of 1883 
 (s. 93 (2) ) merged in the Supreme Court of Judicature; and its jurisdiction is 
 exerciseable by a Judge of the High Court 'assigned' for the purpose.) 
 
 2 Act of 1883, s. 78. 
 
 3 S. 86 ; Act of 1890, s. 19. 
 * Act of 1883, s. 21. 
 
 'S. 121. 
 
 ' S. 22. (The rules of administration applicable in bankruptcy had been partly 
 extended to the administration of insolvent estates in Chancery by s. 10 of the 
 Judicature Act, 1875). 
 
 ^S. 8.
 
 INDEX 
 
 Abatement, 107, 
 
 and see ' Nuisance.' 
 Abjuring the realm, 41, 158. 
 Accountant General in Chancery, 213. 
 'Ac eliams; 171-173, 346,347. 
 Actio paenalis moritur cum persona, 301. 
 Administrator, of intestate's goods, 64, 
 
 130. 
 Advowsou 93. 
 ^theling, 5. 
 Aids, 33, 238. 
 Alfred, King, and 'wed,' 13. 
 
 dooms of, 18. 
 Alienation, 
 
 choses in action, of, 294. 
 
 forms of, 106. 
 
 right of, 36, 87, 102-122, 240-243. 
 Ames, on Contract and Tort, 134, 138. 
 Ancient Law (Maine), 13. 
 Anefang, 8. 
 Anglo-Saxon laws, 
 
 landownership in, 11. 
 
 law of property in, 11. 
 
 origin and character, 3-5. 
 
 state of, 17. 
 Antiqua Staiuta, 76. 
 Appeals, 
 
 Common Pleas, 169. 
 
 criminal cases in, 344, 345, 353. 
 
 felony, of, 42, 55, 59, 152, 154-156. 
 Apprentices, 198-200. 
 Areopagitica (Milton's), 130. 
 Arms, Assise of, 23. 
 Arrest, 
 
 arbitrary, 334. 
 
 on mesne process, 168-173, 346-348. 
 Articled clerks and Law Society, 205. 
 Articuli Clcri, 145, 158, 159. 
 Assets, administration of, 226-233, 379. 
 Assises, 23-25. 
 
 petty or possessory, 93, 122. 
 Assumpsit, 140, 228, 298, 301. 
 
 and bailment, 301, 302. 
 
 and 'breach of promise,' 303. 
 
 and deceit, 307, 308. 
 
 and warranty, 308. 
 Athelstan, dooms of, 18. 
 Attachment, 172, 210. 
 Attaint, 84. 
 
 and corruption of blood, 36, 181. 
 
 Attorneys, 82, 201-206. 
 'Authorised Reports,' 191, 192. 
 
 Bail, 150, 173. 
 
 Bailment, 58, 88, 271, 274, 300-302. 
 
 Bank of England, 287. 
 
 Bankruptcy, 
 
 doctrine of 'reputed ownership' in, 
 271,272. 
 
 history of, 373-379. 
 Banks, and limited liability, 290. 
 'Barebone's Parliament,' see 'Little 
 
 Parliament.' 
 Bargain and sale, 120. 
 Barnard's Act, 288. 
 Bar of entail, 113, 118. 
 Barristers, 198-201, 337. 
 Battle, trial by, 46, 55, 198. 
 Bedford Level, 255. 
 Benefit of clergy, 156, 157. 
 Berne Convention, 280. 
 Bill of Middlesex, 171, 346. 
 Bills of Exchange, 126-128. 
 Bills of Sale, 272, 273, 
 
 and see ' Ships.' 
 Blackstone, views on statute law, 186. 
 
 on text-books, 197. 
 Blood feud, 7, 8, 13, 42, 46, 63. 
 Boc-land, 11, 12. 
 Books of Entries, 80. 
 Bootless offences, 10, 11. 
 Borh, 9, 13. 
 
 Boroughs, justices in, 154. 
 Bracton, 
 
 appeals of felony, 42, 43. 
 
 debt, 133. 
 
 relation to Roman Law, 20. 
 
 right to alienate, on, 37. 
 
 terms of years, on, 89. 
 
 work of, 11, 25, 196. 
 'Breach of promise,' 303. 
 Breve, see 'Writ.' 
 Burgage tenure, 31. 
 
 Cairns, Lord, 257. 
 Canon Law, 5, 20, 21, 195. 
 Capias ad Respondendum, 170. 
 
 ad Satisfaciendum, 348. 
 
 Utlagatum, 170. 
 Case, action of, 78, 94, 137-139.
 
 382 
 
 INDEX 
 
 Casual ejector, see 'Ejectment.' 
 Causa, of contract, 66. 
 Ceorl, 5, 10. 
 
 folc-land, 11, 12. 
 Cestui que trust, 218. 
 Cestui que use, 96. 
 Champerty, 143. 
 Chancellors, Lord, 209-212. 
 Chancery, see ' Court.' 
 
 officials, 210-212. 
 Charters, public, 22. 
 
 private, see ' Feoffment.' 
 'Chattel real,' 90. 
 Chattels, 
 
 origin of term, 11. 
 
 development of law of, 266. 
 
 seizure of, 274. 
 Chester, law of succession in, 268, 269. 
 Chevisaunce, 128. 
 
 Choses in action, 92, 123-130, 266, 274, 
 275. 
 
 transfer of, 294-297. 
 Church, and 
 
 debts of deceased, 65. 
 
 intestate succession, 60-64. 
 
 judicial ordeals, 46. 
 
 property of, 29-31. 
 Church Courts, see 'Courts.' 
 Circuit system, reform of, 370, 371. 
 Civil Conspiracy, see 'Conspiracy.' 
 Civil Procedure, see Table of Contents. 
 Civil Procedure, Act of 1833, 351. 
 Clarendon, Assise of, 23, 40, 41, 42, 46, 
 
 51, 158. 
 Clarendon, Constitutions of, 22, 30, 65, 
 
 74, 156. 
 Clearing oath, see 'Oath helpers.' 
 Clementines, 21. 
 Clifford's Inn, 203. 
 'Clogging the equity,' 249. 
 Cnut, legislation attributed to, 18, 39, 
 
 60. 
 Coke, Sir E., 
 
 authority of Parliament, on, 186. 
 
 quarrel with EUesmere, 165. 
 
 works of, 81,82, 196. 
 'Colour,' 162, 163, 359. 
 Combination Laws, repeal of, 315-317. 
 Commission of rebellion, 208. 
 Commissioners of Great Seal, 211. 
 Common Bench (or Pleas), see 'Courts.' 
 Common employment, doctrine of, 317- 
 
 319. 
 Common Law, 
 
 contracts, o£, 216, 217. 
 
 inheritance, of, 251. 
 
 Law Merchant, and, 235. 
 
 married women's property, of, 225. 
 
 origin and growth of, 17-25. 
 
 register of writs, in, 45. 
 
 sources of, 75-82. 
 
 tenures in, 32. 
 'Conmion law' conspiracy, 
 
 civil, 332-337. 
 
 criminal, 320-323. 
 Common Law Procedure Acts, 358-360. 
 Common Recovery, 88, 90, 111-115, 118. 
 Commons preservation, 264. 
 Commons, see 'Enclosures.' 
 Commonwealth, 
 
 attitude towards Church courts, 228, 
 303. 
 
 printing, 277. 
 Companies, 
 
 Act of 1862, 290. 
 
 Act of 1908, 292. 
 
 debentures of, 290, 291. 
 
 directors' liability, 291. 
 
 introduction of limited liability, 
 288, 289. 
 
 joint stock, 287-292. 
 
 legislation of 1900, 291. 
 
 monopolies, 287. 
 
 public and private, 289. 
 
 regulated, 129. 
 
 winding-up of, 291. 
 Compleate Copyholder (Coke), 12, 73. 
 Consideration, 139, 140, 273, 296-298. 
 Consiliatio Cnuti, 18. 
 Consimilis Casus, see 'Case.' 
 Consolidation (of mortgages), 216. 
 Conspiracy, 142, 143, 148, 307, 319-327. 
 Constitutions of Clarendon, 22, 30, 65, 
 
 74, 156. 
 Contingent remainders, 85, 86, 103, 253. 
 
 trustees to preserve, 108. 
 Continual claim, 117. 
 Contract, 
 
 Ijailment and, 300-302. 
 
 de\elopmcnt of, 65-67. 
 
 early stages of, 13. 
 
 infants, of, 304. 
 
 later history of. 88, 132-140, 298-307. 
 
 married woman, 222, 223, 305. 
 " procuring breach of, 147, 148. 
 - specific performance of, 209, 216. 
 Conversion (equitable doctrine), 231, 232. 
 
 (tort), 142. 
 Conveyancing precedents, 197, 198. 
 
 copyholds, 32, 33, 103, 179, 238. 
 
 copyholders and King's Courts, 72, 
 119. 
 
 debts, liability for, 250. 
 
 forfeiture for treason, 219. 
 
 Statute of Wills, 240, 241. 
 Copyright, 129. 
 
 history of, 276-283. 
 
 Licensing Act, 191. 
 
 statutory recognition, 130. 
 Coram Rcgc Rolls, 24. '
 
 INDEX 
 
 383 
 
 Corporation, 
 
 recognition of, 106. 
 
 Trade union not, 322, 327-329. 
 Corpus cum Causa, see 'Habeas Corpus.' 
 Corpus Juris Canonici, 21, 185. 
 Corpus Juris Civilis, 4, 20, 185. 
 Corruption of blood, 84. 
 Costs in criminal cases, 342. 
 Council of Law Reporting, 194, 201. 
 Council of Legal Education, 200. 
 Council of the Magnates, 30. 
 Counsel, see 'Barristers.' 
 Countor, 161. 
 Courts, 
 
 Admiralty, 147, 195. 
 
 Augmentations, 237. 
 
 Chancery, 80, 97, 104, 201. 
 
 administration of assets by, 229- 
 
 230. 
 mortgages and, 124, 125. 
 procedure of, 163-182. 
 reform of, 356-358, 361-363. 
 uses and, 97-99. 
 
 Church, 21, 39, 40, 74, 75, 145, 195, 
 223-229, 269. 
 
 Common Bench (or Pleas), 117, 169— 
 173. 
 
 County, 73, 179, 371-373, 376. 
 
 Divorce, 204. 
 
 Exchequer, 169, 234. 
 
 Feudel, 40, 71-73. 
 
 Hundred, 21, 73-74, 153. 
 
 Merchant, 40, 75. 
 
 Probate, 180, 269. 
 
 Requests, 179. 
 
 Rolls, 215. 
 
 Shire, 73. 
 
 Sipall Debts, 179. 
 
 Star Chamber, 80, 146, 147, 166, 167, 
 209, 276. 
 
 Wards, 100, 237. 
 Covenant, see 'Writ.' 
 Covenant to stand seised, 120. 
 Criminal informations, 336. 
 Criminal law and procedure, 40, 52, 150- 
 160, 340. 342. 
 
 consolidation of statutes, 341, 342. 
 
 new crimes, 149. 
 
 reforms in, 332-345. 
 Criminous clerks, 157, 159. 
 Curia Regis, 54. 
 
 unhistoric theory of, 364, 365. 
 Curtesy, 220-223, 243. 
 
 Damages, 
 
 general and special, 95, 311. 
 
 liquidated and unliquidated, 60. 
 Danegeld, 27, 28. 
 
 D'arrein presentment, assise of, 50, 93, 94. 
 Darrocade, 10. 
 
 De Banco Rolls, 24. 
 Debentures, see 'Companies.' 
 Debt, 56-58, 133, 173. 
 
 and detinue, 301. 
 
 and wager of law, 140, 168. 
 Debts of deceased persons, 62. 
 
 liability of land (or heir) for, 62, 63, 
 250, 251. 
 Deceit, 138, 140, 308, 309. 
 Decretales, 21. 
 Decretum Graiiani, 21. 
 DeDonis, 87, 102, 112, 117. 
 Deeds, and conveyancing, 255. 
 Defamation, 144-147, 309-312. 
 Demurrer, 164. 
 Deodand, 181. 
 
 Deprivation of services, 324, 325. 
 Descent cast, 108. 
 Designs, see 'Patents.' 
 Detinue, 58, 132-135. 
 
 arrest on mesne process in, 172. 
 
 sur. bailment, 142, 300-302. 
 
 sur trover, 142. 
 Devesting of remainders, 108. 
 Dialogue of the Exchequer, 169. 
 Director of Public Prosecutions, see 
 
 'Public Prosecutor.' 
 Directors (company), 236, 291. 
 Discipline Committee, 205, 206. 
 Discontinuance, 107. 
 Disseisin, 107, 108. 
 Distress, 8, 33, 44, 208. 
 Distribution, Statutes of, 131, 267-269, 
 
 and see 'Succession.' 
 Distringas, 172. 
 Doctor and Student, 139, 140, 163, 167, 
 
 168, 209. 
 Domesday Book, 24, 27. 
 Domicile (wills), 271. 
 Dower, 114, 125, 220,221. 
 
 Easements, 94. 
 
 East India Co., 287. 
 
 Edmund, dooms of, 18. 
 
 Edward the Confessor, Laws of, 19. 
 
 Edward the Elder, dooms of, 18. 
 
 Ejectment, 87, 90, 168, 173-176, 242, 359. 
 
 Eldon, Lord, 225. 
 
 Election, doctrine of, 234. 
 
 Elegit, 95, 165, 208. 
 
 Ellesraere, Lord, 165. 
 
 Enclosures, 262-265. 
 
 English language in the Courts, 348. 
 
 'English Laws,' see ' Quadripartitus.' 
 
 Entails, 
 
 bar of, 113, 118, 243, 384. 
 
 introduction of, 86-87. 
 Entries, Books of, 81. 
 Entry, right of, 108. 
 
 writs of, see 'Writ.'
 
 384 
 
 INDEX 
 
 Equitable fraud, 309. 
 Equitable waste, 92. 
 Equity, 
 
 alleged author of 'valuable considera- 
 tion,' 298. 
 
 development of, 211. 
 
 early history of, 208-210. 
 
 mortgages, and, 216. 
 
 procedure, 164. 
 Equity to a settlement, 224, 225. 
 Escheat, 36, 41, 84, 85, 218, 219. 
 Esne, 6. 
 
 Estate pur autre vie, 105, 239. 
 Estoppel, 111, 112. 
 Estovers, 94. 
 Etheling, see '^theling.' 
 Ethelred, dooms of, 18. 
 Evidence, 
 
 oral, see 'Witnesses.' 
 
 written, see 'Statute of Frauds.' 
 'Exceptions,' 43. 
 Exchange, bills of, 126-128. 
 Exchequer, Court of, see ' Court.' 
 
 Equity jurisdiction of, 235. 
 
 Orders of, see 'Rules and Orders.' 
 Exchequer of Pleas, see 'Courts.' 
 Exchequer (Plea) Rolls, 24. 
 Execution, public, 342. 
 Executor, 
 
 administration of assets by, 226. 
 
 appearance of, 63, 64, 111. 
 
 and heir. 111. 
 
 liability for debts of deceased, 130, 
 299. 
 
 remedies by and against, 130, 301, 307. 
 
 takes residue undisposed of, 131, 267. 
 Executory devises, 104. 
 Extravagantes, 21. 
 
 Factory System, introduction of, 315. 
 
 Family Settlements, see 'Settlements.' 
 
 Fatal Accidents Acts, 307, 308. 
 
 Fealty, 32. 
 
 Fee simple, 87, 103. 
 
 Fee tail, see ' Entails.' 
 
 Feet of Fines, see ' Fines.' 
 
 Felony, 
 
 appeal of, 42, 155. 
 
 appearance of, 41. 
 
 classification, 151. 
 Feoffee to uses, 96. 
 Feoffment, 106, 255. 
 
 beneficial operation of, 107. 
 
 charters of, 107. 
 
 deed of, 163. 
 
 mortgage bj', 125. 
 
 tortious operation of, 107, 122, 255. 
 
 transfer by, 254. 
 Ferni, 88. 
 Fermors, and waste, 91. 
 
 Feud, see 'Blood feud.' 
 Fines (lawsuits), 
 
 abolition of, 254, 255. 
 
 Feet of, 24, 115. 
 
 generally, 87,88, 115-117. 
 
 Little Parliament, and, 178. 
 
 Proclamation of, 117. 
 
 tenant in tail, by, 118. 
 Fines (penalties), 
 
 in copyholds, 179. 
 
 on alienation, 238. 
 
 on descent, 34. 
 Fire, liability for damage done by, 311. 
 Fitzherbert, 81, 82, 151. 
 
 and Justices of the Peace, 156. 
 
 and sessions, 154. 
 Five K?iights' Case, 334. 
 Folc-land, 12. 13. 
 Following the trail, 7. 
 Forcible Entry, Statutes of, 175, 176. 
 Forfeiture, civil, 103, 108, 219, 241-243, 
 342. 
 
 for felony, 41. 
 Formedon, see ' Writs.* 
 Fortescue, works of, 81. 
 Franchises, 92. 
 Frankalmoign, 29-31. 
 Frauds, Statute of, 105, 220-222, 239, 
 295, 298, 299, 303, 304, 308. 
 
 Amendment Act, 308. 
 Friars and uses of land, 96. 
 'Fusion' of Law and Equity, 357-369. 
 Future interests in land, 83. 
 Fyrdwite, 10. 
 
 Gage, see 'Pledge.' 
 
 Gavelkind, 31, 35. 
 
 General Council of the Bar, 200. 
 
 General Sessions, see 'Quarter sessions.' 
 
 ' General Warrants,' 277, 335. 
 
 Gesith, 5, 10. 
 
 Glanville's treatise, 24.- 
 
 Action of Debt, 133. 
 
 contracts, 65, 66, 135. 
 
 covenant, 135. 
 
 pledge of land, 124. 
 
 right to alienate, 38. 
 
 terms of j^ears, 89. 
 'Grace,' 208-212. 
 Grand Assise, 23, 49, 163. 
 Grand (or accusing) Jury, see 'Jury.' 
 Grants, 118, 254, 255. 
 Guardians, and Waste, 91. 
 
 Habeas Corpus, 333-335. 
 
 Halsbury, Lord, and registration of title, 
 
 258-260. 
 and contracts in restraint of trade, 
 
 321. 
 Hand muss Hand wahren, 59.
 
 INDEX 
 
 385 
 
 Harbouring, 147. 
 
 Hardwicke, Lord, 211, 214, 279, 297, 304. 
 
 Heir, 
 
 and executor, 111. 
 
 liability for deceased's debts, 62-64. 
 Henry I, Laws of, 18. 
 Henry II, reforms of, 48, 49. 
 Hereditas, 37. 
 Heriots, 34. 
 Holt, Lord, 302, 303. 
 Homage, 32, 109. 
 
 'Hue and Cry,' see 'Bootless Offences.' 
 Hundred, and Grand Jury, 40. 
 Hundred, Ordinance of the, 11. 
 Hundred Rolls, 28, 72. 
 Husband, and wife's property, see 
 ' Married Women.' 
 
 Implied trusts, 221. 
 Improvement of land, 246. 
 Inclosures, see 'Enclosures.' 
 Incorporated Laws Society, see 'Law 
 
 Society.' 
 Incorporeal hereditaments, 92-95. 
 Indictments, 151, 158. 
 Infants, 
 
 contracts of, 304, 305. 
 
 settlements of, 304. 
 Inheritance, 35, 87, 219, 220. 
 
 change in law of, 64, 65, 111, 251. 
 Injunction and Chancery jurisdiction, 
 144, 166, 209, 284. 
 
 Common Law Courts, 360. 
 Inns of Chancery, 
 
 decay of, 203. 
 
 history of, 202. 
 Inns of Court, 
 
 later history of, 199-201. 
 
 settlement of common lawyers in, 
 20. 
 Inquests, 
 
 knights fees, 24, 37 n., 48. 
 
 sheriffs, 40. 
 
 tenants in capite, 24. 
 Inrolments, Statute of, 120. 
 Instituta Cnuti, 18. 
 Insurance (National) Act, 331. 
 
 companies and limited liability, 290. 
 Interest, see 'L^sury.' 
 Intertiatio, 8. 
 
 Intestacy, see ' Succession, Law of.' 
 Intrusion, 107. 
 'Isidore,' ps, 21. 
 
 Jekyll, Sir Joseph, 214. 
 Jervis' Acts, 340,341. 
 Joint Stock Companies, see 'Compa- 
 nies.' 
 Jones, Sir William, 302. 
 Judicature Acts, 364-372. 
 
 Jury, 
 
 composition of, 47, 162. 
 
 copy of 'panel,' 336. 
 
 of accusation (Grand Jury), 51, 152, 
 179, 332. 
 
 origin of, 48, 162. 
 
 partial abolition of, 369. 
 
 petty jury, 51, 152, 332. 
 
 trial by, 43, 45-54, 162. 
 Justices of the Peace, 150. 
 
 appointment of, 153. 
 
 marriage before, 178. 
 
 powers of, 152-154. 
 
 Sir John Jervis' Acts, 340, 341. 
 
 small debts courts, 179. 
 
 special privileges of, 340. 
 
 Keeper, Lord, 208. 
 Kenyon, Lord, 229. 
 King, and 
 
 criminal law, 10, 11. 
 
 feudal jurisdiction, 48. 
 
 land law, 13, 26-38. 
 
 local moots, 39. 
 
 trial by jury, 48. 
 
 writ of summons, 43. 
 King's Counsel, 199-200. 
 Knight service, 29. 
 
 Labour, regulation of, see 'Trade 
 
 Unions.' 
 Labourers, Statutes of, 147, 148, 150, 313. 
 LcEsio fidei, 13. 
 Laet, 6. 
 
 Lambard, 1.50, 152. 
 Land charges, registration of, 261. 
 Land-hlaford, 6. 
 Land-rica, 6. 
 Lapse, see 'Will.' 
 Larceny, appeal of, see 'Appeals.' 
 Latitat, see 'Writs.' 
 Law Merchant, 40, 127, 235, 297. 
 'Law Reports,' the, 193-195. 
 Law Society, The, 204-206. 
 'Lease, entry, and ouster,' 177. 
 Leases, 
 
 by limited owners, 247. 
 by mortgagees and mortgagors, 248-9. 
 Leet sessions of High Constable, 153. 
 Legacies, in the Common Law Courts, 
 
 229. 
 Legal profession, history of, 198-206. 
 Leges Barharorwn, 4. 
 Leges Edwardi, 19. 
 Leges Henrici (Primi), 18. 
 Leges Willelmi, or Leis Willelme, or 
 
 Leis Williame. 18, 19, 60. 
 Le mart saisit le vif, 107. 
 Letters Patent, see 'Patents.' 
 Lex Mercaioria (Malynes), 75, 128.
 
 386 
 
 INDEX 
 
 Lex Rihuaria, 11. 
 
 Lex Salica, 4. 
 
 Lex Tcrrae, 17. 
 
 Libel, see ' Defamation.' 
 
 Liber Intrationum, 1(52. 
 
 Licensing Act and copyright, 191 , 277, 278. 
 
 Limitation of Actions, 
 
 land, 353, 354. 
 
 personalty, 351. 
 
 and see ' Prescription.' 
 'Little Parliament,' law reform scheme 
 
 of, 178-182. 
 Liverj- of seisin, see 'Feoffment.' 
 Local custom and copyholds, 31, 32. 
 Locke King's Acts, 251, 252. 
 London, law of succession in, 268, 269. 
 Lords, House of, judicial functions 
 
 abolished, 366. 
 Lordship, recognition of, 84. 
 Lynch law, 10. 
 
 Magna Carta, 
 
 intestate succession, 60. 
 
 mortmain, 31. 
 
 trial bj^ jury, 48. 
 Maintenance, 86, 143, 144, 176, 241. 
 
 a criminal offence, 143. 
 Malberg Glosses, 4. 
 Malicious Prosecution, 142. 
 Mandamus, 73, 360. 
 Mannbot, 6. 
 
 Mansfield, Lord, 230, 234. 
 Market overt, 156. 
 
 Marriage law, scheme of Little Parlia- 
 ment, 178. 
 Marriage, right of, 34. 
 Married women, 
 
 contracts of, 222, 305, 306. 
 
 equity to a settlement, 223, 224. 
 
 powers of disposition, 224, 305, 306. 
 
 property of, 222-226, 305, 306. 
 
 restraint on anticipation, 225, 300. 
 
 torts of, 222, 306. 
 Marshalling, doctrine of, 230, 252. 
 Master and Servant Act, 1867, 321, 322. 
 Master of the Rolls, 
 
 controversy as to jurisdiction of, 
 213, 214. 
 
 office of, 213. 
 
 solicitors, and, 205. 
 
 statutory enlargement of jurisdiction, 
 214. 
 Masters in Chancery, 212, 213, 361. 
 Merchant Shipping Acts, 294. 
 Merchet, 34. 
 
 Mcrton, Statute of, 22, 262, 263. 
 Mesne, writ of, 33. 
 Meuhle n'a suyte, 59. 
 Middlesex, registration of title in, 256. 
 Military tenures, abolition of, 237-239. 
 
 Misdemeanours, 41, 151. 
 Modus Levandi Fines, 76, 115. 
 Monoplies, 129, 
 
 and see 'Patents.' 
 Mort d' Ancestor, assise of, 49. 
 Mortgage ancestral, 252. 
 Mortgages, 56,- 123-126, 215, 216, 248- 
 
 250, 252. 
 Mortgages and mortgagors, statutory 
 
 powers of, 248. 
 Mortmain, 31, 96, 105, 106. 
 
 Nam, see 'Distress.' 
 
 Narratio, 161. 
 
 Navigation Acts, 292, 293. 
 
 Negligence, see 'Non-feasance.' 
 
 Negotiable Instruments, 297. 
 
 New Inn, 203. 
 
 Newspaper Libels, 309, 310. 
 
 Nil habuit in tenementis, 116. 
 
 Non-feasance, liability for, 138, 139,312, 
 
 313. 
 North, Roger, on 'ac etiams,' 347, 348. 
 barristers and attornej-s, 203. 
 his brother's settlement, 223. 
 Northampton, Assise of, 23, 41, 42, 46, 
 
 63, 158. 
 Novel Disseisin, Assise of, 23, 50, 67, 
 
 94, 126, 163. 
 Nuisance, 94, 143. 
 
 Oath-Helpers, 9, 47, 
 
 and see 'Wager of Law.' 
 Odio et Atid, writ of, 43 
 Oferhyrnes, 10. 
 Official Referees, 369. 
 Old Age Pensions Act, 331. 
 'Once a mortgage,' etc., 215. 
 Ordeal, trial by, 9, 10, 41, 46. 
 Orders in Council, 187, 188. 
 Ousterlemain, 238. 
 Outlawry (civil), 170. 
 
 Parliament, sovereignty of, 185. 
 Parliamentary Papers, 309. 
 Partition, 105. 
 
 Passing off, see 'Trade names.' 
 Patents — 
 
 Act of 1883, 285. 
 
 Acts of 1907, 285. 
 
 history of, 283-287. 
 
 origin of, 128. 
 
 Register of, 285. 
 'Peaceful picketing,' 323, 324, 329. 
 Peasants' War, consequences of, 72, 147, 
 
 313. 
 Peel's Acts, 338, 339. 
 Peers, tried by, 48 n. 
 Peine forte et dure, 51. 
 Penal servitude, 338.
 
 INDEX 
 
 387 
 
 Performance see 'Satisfaction.' 
 People's Ranks, 5, 19. 
 Perpetuities, see 'Rule against Per- 
 petuities.' 
 Petty Assises, see 'Assises.' 
 Petty sessions, 153. 
 Pleadings — 
 
 Equity, 163, 164. 
 
 form of, 162, 163. 
 
 in English, 161 n, 348, 349. 
 
 oral, 161. 
 
 reform of, 368, 369. 
 
 written, 161. 
 Pledge, 13, 19, 56, 124. 
 Police, modern, 339. 
 Pone, writ of, see 'Writs.' 
 Poor Prisoners' Defence Act, 344. 
 Possession — 
 
 and seisin, 89, 99, 100. 
 
 'apparent possession,' 272. 
 
 transfer without possession, 271. 
 Possessory assises, see 'Assises.' 
 Practice-books, 161, 196, 197. 
 Preference, 226. 
 Prescription, 354-356. 
 Primogeniture, 35. 
 'Private agreements,' 133. 
 Privilege, see 'Writs.' 
 Probate procedure, 182. 
 Procedure, reforms suggested by Little 
 
 Parliament, 181. 
 Proclamations, 117, 118, 187. 
 Proctors, 204. 
 Procuring breach of contract, 147, 148, 
 
 325. 
 Provisions of Oxford, 22. 
 
 Westminster, 22. 
 Public Prosecutor, 343. 
 Purveyance, 238. 
 
 Quadripartitus, 18. 
 Quare impedit, 93 n. 
 Quarter Sessions — 
 
 establishment of, 150. 
 
 jurisdiction of, 152. 
 
 proclamations at, 117. 
 Quia Emptores, 102, 105, 109, 238. 
 Quod Permittat, see ' Writs.' 
 Quominus, see 'Writs.' 
 Quo Warranto, 72. 
 
 Ratification, see 'Infanta.' 
 Reading-test, 157. 
 Real Actions — - 
 
 abolition of, 353, 361. 
 
 decay of, 175. 
 
 establishment of, 47, 49-51, 57, 93, 
 112, 113. 
 Reasonable parts, see 'Succession, law of.' 
 Recovery, see ' Common Recovery.' 
 
 Register of Writs, 45, 77. 
 Registration of Bills of Sale, 273. 
 Registration of titles, ISO, 255-261. 
 Release, 121, 122. 
 
 statutory 122. 
 Relief against forfeiture, 242. 
 Reliefs, 33. 
 
 Remaindermen, interests of, 253. 
 Remainders, 84-86. 
 Remitter, 107. 
 Rent charge, 94. 
 
 service, 33, 94. 
 Replevin, 9, 44, 172. 
 Replicalio, 162. 
 
 Reports (of cases), 80, 190-195. 
 Reputed ownership, 271. 
 
 and see 'Bankruptcy.' 
 Restitution, see 'Writs.' 
 Restraint on anticipation, 225. 
 
 of trade, 235. 
 Retainer, 226. 
 Retrait, 36. 
 
 Reversions, 83, 84, 90. 
 Right, Writ of, see 'Writs.' 
 RoUe, C. J., and the Action of Eject- 
 ment, 177. 
 Roll of solicitors, 201, 205. 
 Rolls, Master of the, see ' Master of the 
 
 Rolls.' 
 Roman Law — 
 
 and the Common Law, 19. 
 
 as an authority in English Courts, 
 195. 
 
 Corpus Juris of Justinian, 19. 
 
 influence in England secret, 20. 
 
 opposition to in England and France, 
 20. 
 
 spread to England, 19, 20. 
 Rotuli Curiae Regis, 24. 
 Royal Commissions on — 
 
 civil procedure, 357. 
 
 courts (Judicature), 364. 
 
 criminal law, 338, 341. 
 Rule against Perpetuities, 225, 244. 
 Rules and Orders of Court, 188-190, 351, 
 352. 
 
 Sanctuary, privilege of, 158-160. 
 
 Satisfaction, doctrine of, 232. 
 
 Scandalum Magnatum, 146. 
 
 Sci. Fa., abolished as to patents, 286. 
 
 Scriveners, 202. 
 
 Scutage, 33. 
 
 'Seduction,' action of, 147. 
 
 Seisin — 
 
 abeyance of, 85. 
 
 advowsons and, 93. 
 
 Bracton and terms of years, 89. 
 
 petty assises and, 49. 
 
 pledges and, 124.
 
 ;s8 
 
 INDEX 
 
 Seisin — 
 
 possession and, 89, 99, 100. 
 
 protection of, 90. 
 Selden Society publications, 145. 
 Semper fuerunt seisiti, 117. 
 Separate use, see 'Married Women.' 
 Sequestration, 210. 
 Serjeants, 161, 198, 199. 
 Service, and tenure, 33. 
 Servitudes, 92. 
 Sessions — 
 
 Petty, see 'Petty Sessions.' 
 .Quarter, see 'Quarter Sessions.' 
 Settled Estates Acts, 244, 245. 
 Settled Land Acts, 247-249. 
 Settlements, 244-251. 
 Severance of reversion, 242. 
 Sext, 21. 
 
 Shares, see 'Companies.' 
 Sheriff — 
 
 preliminary enquiry in criminal pro- 
 cedure, 40. 
 
 writ of summons, and, 44, 169. 
 Ships — 
 
 bills of sale of, 293, 294. 
 
 division into shares, 293. 
 
 Merchant Shipping Acts, 294. 
 
 Navigation Acts, 292, 293. 
 
 register of, 293. 
 Sittings (of the Courts), see 'Terms.' 
 Six Members' Case, 334. 
 Slander, see ' Defamation.' 
 Small Debts Courts — 
 
 set up in 18th century, 38. 
 
 suggested by Little Parliament, 179. 
 Socage, 28. 
 
 conversion of military tenures into, 
 238. 
 
 rights and duties of socagers, 28, 29. 
 Society of Gentlemen Practisers, 204. 
 Solicitors, see 'Attorneys.' 
 South Sea Bubble, and Chancery funds, 
 
 212. 
 South Sea Company, 287. 
 Specific Performance, 209, 216, 217. 
 Specific recovery of chattels, 57-60, 209, 
 
 360. 
 Spelman, on 'folc-land,' 12 n. 
 Staple, Statute of the, 126. 
 Star Chamber, see 'Court.' 
 State action — 
 
 absence of in early society, 7, 9. 
 
 beginnings of in criminal law, 9. 
 Stationers' Company, history and pow- 
 ers, 276-279. 
 Status system of early England, 5. 
 Statutes (generally), 22, 76, 186, 187. 
 Statutes, Merchant and Staple, 126. 
 Stipendiary Magistrates, 337, 338, 341, 
 
 and see 'Justices of the Peace.' 
 
 Stock, see 'Companies.' 
 Subinfeudation, 33, 36, 37, 102, 106. 
 Subpoena, see 'Writs.' 
 Subrogation, see 'Marshalling.' 
 Substitution, 37, 106, 109. 
 Succession, law of, 60-65, 266-271. 
 Suit of Court, 32. 
 Summary Jurisdiction, see 'Justices of 
 
 the Peace.' 
 Supreme Court, establishment of, 365. 
 Surrender and admittance, 119. 
 Symbolceographia, 82. 
 
 Tacking, 216. 
 
 Taff Vale Case, 327, 328. 
 
 Tail 
 
 estate, see 'Tenant in tail.' 
 
 tenant in, 'Tenant in tail.' 
 ' Tnltarum's Case,' 88, 175 n. 
 Tenant — 
 
 for life, and warranty, 112. 
 and waste, 91. 
 
 mortgage, and improvements by, 
 248. 
 
 for years, 83-101. 
 
 and warranty, 112. 
 
 in capite, and alienation, 103. 
 and waste, 91. 
 
 in tail, 107, 113, 118, 241, 243, 244. 
 Tenure — 
 
 abolition of military, 237-240. 
 
 advowsons held by, 93. 
 
 appearance of principle, 12. 
 
 common and local, 32. 
 
 conversion of People's Ranks into, 
 19. 
 
 free and unfree, 31. 
 
 incidents of, 31, 95, 218. 
 
 under William the Conqueror, 27, 32. 
 Terms (Court), 370, 371. 
 Terms of years, 88-90. 
 
 assignment of, 100, 103. 
 
 Bracton's view of, 89. 
 
 Glanvillc's view of, 88. 
 
 mortgages by', 126. 
 
 recovery in Ejectment, 173-175. 
 Testament, see 'Will.' 
 Text-books — 
 
 as authorities in English courts, 196. 
 
 early, 23, 80, 121. 
 Thogn, 6, 7, 10. 
 
 connection with land, 12. 
 
 local jurisdiction, 39. 
 Theodosian Code, 5. 
 Thcow, 6. 
 
 Thurlow, Lord, 225. 
 'Tied houses,' 235. 
 Tiht-hysig, 9. 
 
 Timber, mortgagee in possession and, 
 249.
 
 INDEX 
 
 389 
 
 Tolt, 51. 
 
 Torrens system, 256. 
 
 Tortious operation, see 'Feoffment.' 
 
 Torts — 
 
 development of, 67. 
 
 early notion of, 12. 
 
 history of, 132-148, .307-313. 
 
 law of personal property and, 123. 
 
 married women, of, 305. 
 
 statutor.v, 147. 
 Trade Disputes Act, 329. 
 Trade marks — ■ 
 
 Registration Acts, 285, 286. 
 Trade names, 284. 
 Trade Unions, 315-317, 319-331. 
 Trail, following the, see 'Following the 
 
 Trail.' 
 Transportation, 337. 
 Treason, Law of, 149, 151. 
 
 appeals of, 155. 
 
 forfeiture of copyholds for, 218. 
 
 forfeiture of entailed estates, 244. 
 
 trials for, 336, 337. 
 Trespass, see 'Writs.' 
 Trover, 141, 142, 209. 
 Trusts — 
 
 after Restoration, 218-222. 
 
 Statute of Frauds, and, 220. 
 
 Statute of Uses, and, 100, 101, 218. 
 
 Undertaking, see 'Assumpsit.' 
 Uniformity of Process, 349-351. 
 Uses of land, 95-101, 218. 
 
 origin of, 95. 
 
 protection of, 97. 
 
 recognition of future uses, 104. 
 
 springing and shifting, 120. 
 
 upon uses, 100. 
 
 wills of, 104. 
 Uses, Statute of, 99-101, 104, 118, 119, 
 218. 
 
 effects of, 99. 
 
 uses not within Statute, 100. 
 Usury, 125. 
 Utrum (Assisa), 30. 
 
 Valuable consideration, see 'Consid- 
 eration.' 
 Vee de Nam, see 'Distress.' 
 Vendor and Purchaser Act, 255. 
 'Venue' abolished, 351. 
 Vifgage, see ' Mortgage.' 
 Villengage, 28, 35 
 Vinogradoff, P., 
 
 discovery of Bracton's Notebook, 
 25. 
 
 on 'folc-land,' 12. 
 
 on villainage, 28. 
 Vouchers, Statute of, 110. 
 Vouching to warranty, see 'Warranty.' 
 
 Wager of law, 46, 58, 133, 140-142, 
 
 168, 301, 351. 
 Wages, fixed by law, 31.3-315. 
 Warranty, 11, 50, 56, 59, 87,89, 109- 
 113, 308. 
 
 commencing by disseisin, 112. 
 Waste, 90-92. 
 
 equitable, 92. 
 Wed, 10, 13. 
 Welsh Laws, 5. 
 Wergilds, 5, 8, 9, 11, 158. 
 West, William, see ' Symbolceographia.' 
 Westbury, Lord, 262. 
 Westminster, Provisions of, 22. 
 
 Statute of, 262. 
 
 and see ' De Donis.' 
 William the Conqueror, 'Laws' of, 
 
 18, 19. 
 Wills — 
 
 Act of 1837, 270. 
 
 Chancery jurisdiction in, 227. 
 
 domicile, 271. 
 
 form of, 270. 
 
 land of, 64, 104, 105. 
 
 lapse under, 270. 
 
 personal property of, 61, 62, 130, 
 269, 295. 
 
 revocation and revival of, 270. 
 
 uses of, 104. 
 Winding-up, see 'Companies.' 
 Witc, 158. 
 Witnesses — 
 
 bills of sale, to, 273. 
 
 civil cases, 343, 360, 370. 
 
 confirmation of, 304. 
 
 criminal cases, 332, 337, 341, 342. 
 
 trial by, 47. 
 
 wills, to, 269, 270. 
 Women, slander of, 310. 
 Woodstock, Assise of, 23. 
 Workmen's Compensation Acts, 330, 331. 
 Writs — ■ 
 
 Account, 64, 229. 
 
 Capias ad respondendum, 170. 
 
 Capias Utlagaturn, 170. 
 
 Certiorari, 169. 
 
 Champerty, 143. 
 
 Conspiracy, 142, 143. 
 
 Convenant, 89, 115, 135. 
 
 Debt, 56, 133, 347. 
 
 Deceit, 137, 307. 
 
 Detinue, 57-60, 123, 134. 
 
 Ejectment, 90, 173. 
 
 Entry, 50, 52, 67, 84, 89, 94, 122, 
 175. 
 
 Fi. Fa., 59, 210. 
 
 Formedon, 84, 87. 
 
 Latitat, 171, 347. 
 
 Ma nda tnus, 119. 
 
 original or judicial, 45, 78, 164.
 
 390 
 
 INDEX 
 
 Vrrits — (continued) 
 Pone, 51. 
 Possession, 110. 
 Prerogative, 45. 
 Privilege, 333, 334. 
 Prohibition, 74, 169. 
 Quare Ejecit infra Terminum, 90. 
 Quod Permittat, 93, 144. 
 Quominus, 172. 
 Register of, 45, 77. 
 Restitution, 156. 
 
 Right, 40, 49, 55, 67, 93, 110, 111. 
 . Seisin, 118. 
 
 Subpoena, 97, 98, 164. 
 
 Summons, 43-45. 
 
 Toll, 51, 73. 
 
 Trespass, 52, 53, 67, 90, 94, 122, 123, 
 
 136, 162, 171, 347. 
 Trover, 123. 
 Warrantia Carta, 110. 
 Warranty, 110. 
 Waste, 91, 92. 
 
 Year Books, 78, 79, 190. 
 
 York, law of succession in, 268, 269. 
 
 Yorkshire, registration of title in, 256.
 
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