A Curious Miscellany of Items Philosophical, Historical, and Literary

Manus haec inimica tyrannis.

Thursday, March 23, 2017

Ricardian Law (Part I)

The court of Common Pleas, 1450s
About a year ago I presented a paper to the Richard III Society of Canada on the subject of English law in the time of Richard. It was published in their newsletter in a somewhat shortened version, with footnotes removed.

I am publishing here the longer version of it (with scholarly apparatus). However, it will need to be done in two or three instalments, due to length.

Legal history is an intellectual interest of mine rather than a subject of academic expertise, nor am I a lawyer by profession. This, plus the nature of my original audience, means that the potted history I offer here is necessarily a highly simplified outline of the subject, with all the attendant misrepresentations that come with that. Nevertheless, I hope it may interest someone.

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The title of this paper promises a lot more than it will end up delivering. It should really be called something like “English Private Law in the Age of Richard III”, since it doesn’t deal with, for example, criminal law. Even then, the topic is an impossibly broad one. This pretends to be no more than the barest overview of the subject. Law can be a very technical subject, and medieval law is particularly so. In order to minimize technicalities, it has been necessary to simplify some things, perhaps even oversimplify them.

Even for real estate-obsessed Torontonians it is difficult to conceive of just how important land was in medieval society. So I propose to begin things with a discussion of feudalism and land tenures in medieval England.

I. Feudalism and Tenures

When we think of land ownership, we tend to think of it in its most clear and straightforward sense of allodial ownership. This is where one has full and complete ownership over land, owing no rents, duties, or services to any other person for it, and where one can do whatever one wishes with it. [1] It is strange that this is the kind of ownership that immediately comes to mind, since it is and always has been a fiction. It certainly never existed in England, except perhaps for the King.

In medieval England, one didn’t own land so much as one held it, which is why the concept of land tenure plays such a large part in medieval law. [2] Medieval deeds would grant lands “to have and to hold” rather than “to own”. And once held, it was held of someone else, and held under certain terms. [3] These terms could be incredibly various.

First, tenures could be characterized in terms of what the holder owed to the person from whom he held. Most central to the early feudal system were the military tenures, like knight service, by which the holder of lands had to serve his lord as a knight or to provide a certain number of knights. Because this was such an important service, units of land were characterized by how many knight’s fees they could support. By Richard III’s time, as the crown preferred to simply hire armies, and as lands had largely passed into the hands of tenants who were not trained warriors, knight service came to be commuted to scutage, which was a straightforward money payment in lieu of service. In effect, scutage became a form of direct taxation, and under Edward III came under the control of Parliament. Over time, even scutage fell into disuse, or else had become merely nominal. Besides knight service and scutage, there was grand serjeanty, which was the performance of some other service to the lord that the tenant was obliged to render in person. This was still military in nature, and might involve the provision of a helmet, or a certain number of arrows.

Lands held by knight service, scutage, or serjeanty were considered tenures in chivalry, due to their military origins. In addition to these was socage, which was the service or money owed by the ploughman or “sokeman”, who held lands in return for some service or a money rent. If service, it was called petty serjeanty.

All of these kinds of tenure by service — knight service, scutage, serjeanty, socage— were considered free (as opposed to base) tenures, meaning that it was a freehold and you were a freeholder. What made these various kinds of tenure free? Key to the idea was that the services or money owed were certain. Even poor Rolland, a tenant in Suffolk who “was obliged upon Christmas Day to make a leap, a whistle and a fart coram domino rege” was a freeholder, insofar as his rather embarrassing service was at least spelled out and rendered at a stated time. [4] Outside of Christmas Day, his time and labour were his own.

If the service you owed the lord of the manor was uncertain in nature and amount, or could be called on at any time the lord chose, then you held by an unfree or base tenure, since you could not be considered your own master. This was villeinage. Villeins had no right to sue in the King’s courts, and therefore they fell outside the common law. His only recourse was in the court of his lord. This began to change in the 15th century, with actions like ejectment, which were open to those who weren’t freeholders. This tenure was later known as copyhold, because it was held merely by the custom of the manor and an entry on the manor court roll, rather than by deed. Through legislation in the 19th century all copyhold lands were converted to freehold.

So much for tenures looked at through from the point of view of the services owed for them. To understand land law under the feudal system, it is also necessary to understand the incidents of tenure. The main difference between a service and an incident is that the latter was occasional rather than regular, usually made owing by some event. The most common incidents of tenure were aids, reliefs, wardships, marriages, escheats, and forfeitures. An aid was a levy of money of an extraordinary nature to assist the lord in a financial crunch, specifically (i) ransoming the lord from his captors, (ii) knighting his eldest son, and (iii) marrying his eldest daughter. Relief was a payment due upon the death of a tenant for the right of his heir to enter on the tenancy, typically amounting to a year’s produce of the land. Wardship was the lord’s right to administer and receive profits from the estate of a tenant under age, and marriage was the right to marry wards to whom he wished. Escheat occurred where a freehold tenant died without heirs or if he breached his obligation of service and fealty, and forfeiture occurred when the tenant committed treason. In the former case, lands would escheat to the lord, and in the latter case they were forfeit to the King.

There was much law surrounding all of these incidents, which we haven’t time to explore further. [5] However, two things should be noted about them. First, they were very lucrative for the landlord, potentially more so than rents and services. Second, because of this, it became very important to lords that they not be cheated of them, particularly through subinfeudation and mortmain. In subinfeudation, the tenant alienated lands to others by carving out new tenures, in effect inserting another person below them on the feudal chain. This was problematic because it often meant that incidents were evaded or diminished. For example, let’s say that Alfred is lord and Baldric is his tenant. Baldric enfeoffs lands to Clarence for a nominal yearly rent. Now Baldric is at the same time Clarence’s lord and Alfred’s tenant. Baldric then dies, leaving an heir who is a minor. Normally, Alfred would here be entitled to wardship, enjoying the land and its fruits during the minority. In reality, that enjoyment will now only consist of the less lucrative nominal rent owed by Clarence to Baldric and his heirs.

Mortmain occurred when lands were alienated to a corporation (like the Church) or to what we would call a trust. Here the problem is that corporations and trusts never die, they never get married, and they are never minors, thus cheating the lord of such incidents as relief, wardship, and marriage.

Subinfeudation and mortmain were addressed by legislation such as Edward I’s statute of Quia Emptores (1290), which made all lands alienable, subject to the restriction that all services and incidents owed remained due by the purchaser. [6] This had the inadvertent long-term effect of destroying the personal nature of the old feudal system and instituting the system of “bastard feudalism” characteristic of Richard’s time. [7]

Besides viewing tenures in terms of services and incidents, we can also understand them from the point of view of duration. Land granted “to Richard and his heirs” constituted a fee simple, which was the greatest estate the law allowed in lands. [8] This is the closest analogue to our modern idea of absolute ownership. [9] If, by contrast, the original grant of lands said merely “to Richard” without the words “and his heirs”, this could at most make Richard tenant for life. Upon his demise the estate would revert back to the grantor. Both the fee simple and the life interest were considered freeholds. There was also the fee tail — the entailed estate — which limited succession to certain persons, thereby making the estate non-alienable and giving these future “remaindermen” a vested interest in the property.

To the fee simple, life estate, and fee tail, we may add the fee pur auter vie (an estate held during the life of another), [10] and the lesser kinds of tenancy, including tenancy for term of years, [11] the tenancy at will (at the pleasure of the landlord), [12] and the tenancy at sufferance (adverse possession, based on the inaction of the owner).

Much more could be said about tenures and estates, but this should do for a brief overview. It should however be noted that the law distinguished between ownership and mere seisin or possession. For example, a tenant in fee tail owned the land, upon which he might have tenants for term of years; the latter merely had possession. Owners could vindicate their rights in the courts; those having mere possession could not, at least at first. Mention of courts and vindication of rights brings us to the topic of legal procedure, to which we now turn.

II. Procedure: The Courts and the Forms of Action
The Courts.

The great majority of private law actions, especially those involving property, would have been dealt with through the courts of King’s Bench, Common Pleas, and Chancery. It should be noted that all of these courts sat in different areas of the same place — Westminster Hall. Indeed, there were not even separate rooms for them, and proceedings in one court could often be heard in another. Litigants and their counsel would often have to shout to be heard over the noise of crowds, since besides housing the treasury and serving as a centre of administration, the Hall also served as a sort of shopping centre, lined with traders and stalls.

King’s Bench and Common Pleas (along with the Court of Exchequer) were common law courts, whereas Chancery was a court of equity — a distinction that will be explained shortly. Broadly speaking, Common Pleas dealt with actions arising from disputes between subjects, while King’s Bench dealt primarily with actions that concerned the King in some way, especially the criminal law. [13] Put another way, Common Pleas cases did not require the King’s presence, while King’s Bench cases did, at least in theory. By Richard’s time this was a fiction. In fact, in 1483, Richard III became the last English monarch to dispense justice in the King’s Bench in person.

Originally, the courts followed the King as he traveled throughout the kingdom. This caused much expense and inconvenience for litigants, since travel in the Middle Ages was not easy or cheap. And one could arrive at one’s destination only to find that the court had moved on to somewhere else. A travelling court of justice also posed problems and expenses for those administering it: it was an annoyance to empanel juries, only to have to empanel a new one when the court moved to a new location. Cumbersome records too would have to be moved with the court.

To make justice a little more accessible and less costly, it was decided that the court of Common Pleas should sit in one place, Westminster Hall. [14] Although most suitors would still have to travel to get there, they now at least knew where to go. However, King’s Bench cases, because they theoretically required the King’s presence, continued to follow his court up until the reign of Edward III, when it too settled in Westminster Hall. [15]

Another innovation, slightly later, made justice more accessible: Assizes would travel to the various counties to hear certain cases concerning land that originated in those counties. [16] For these cases, suitors didn’t have to travel; they simply waited until the next assize rolled into town.

From the common law courts, we now turn to equity. It was a maxim that the law ought not to be used to work injustice. But as the common law developed and its procedures became more rigid, injustices often did arise from the regular workings of the common law. When such difficulties arose, the doctrine was that the justices, who were at that time appointees at the King’s pleasure, had no mandate to substantively change the King’s law. In such cases, one could turn to equity, the justice administered in the Lord Chancellor’s court. The Chancellor was the King’s minster charged with ensuring that justice was dispensed throughout the kingdom. He therefore was empowered to offer remedies that the common law courts could not, and to do justice where the common law’s hands were tied. This law was known as “equity”, and was often described as the “conscience of the common law”, being more concerned with substantive justice than with formalities. Eventually, this came to be looked on as a bad joke, in later times when equity became more rigid and Chancery procedure became even more complicated and slow than the common law was. [17] But for awhile it worked.

What were the differences between equity law and common law? One fundamental difference lay in the fact that most medieval chancellors were clergymen. Besides conveying to their office a spiritual element, it also meant they were trained in Roman law (via Canon Law) and hence were familiar with legal concepts of which common lawyers were largely ignorant. For example, the Romans had well-developed law around what we would call trusts (fideicommissa), whereas the common law was ill-equipped to enforce promises made to dead promisees. It was thus no accident that legally enforceable trusts in England — known as “uses” — developed in Chancery. As we’ll see, it was also no accident that they developed in the late 15th century.

Another difference was in procedure: Whereas in the common law courts trial was by jury, in Chancery there was no jury. Also, unlike common law procedure, Chancery procedure was inquisitorial, much as in civil law systems today. What this means is that where a common law judge was supposed to be an impartial referee between plaintiff and defendant, only to intervene on points of law, the Chancellor in his judicial capacity actively investigated the facts of a case and could himself interrogate witnesses and examine parties.

Perhaps the most important difference between common law and equity was in the remedies offered by the latter. For example, in common law, the only remedy for breach of contract was compensation, to return both parties to the position they were in before the contract was made. Only in Chancery might specific performance be ordered, forcing the party in breach to uphold his end of the contract. Or take the case of nuisance: If my neighbour ran a tannery emitting noxious fumes that interfered with my enjoyment of my land, at common law the only remedy I had was, again, a monetary compensation for damages suffered; in theory, my neighbor could continue to pollute all he wanted, so long as he could afford to keep paying me damages every time I went to the considerable trouble of suing him. [18] He could treat a common law court’s judgment as simply a cost of doing business. What I really needed was an injunction requiring him to stop emitting, and it was only Chancery that could issue such injunctions.

Besides acting as a court of (equitable) justice, Chancery played a more important role in the legal system, as we’ll see now, as we turn to the forms of action.

The Forms of Action.

Let us say that Baldric is currently occupying Blackacre, which Alfred believes is rightfully his. How does Alfred go about bringing a lawsuit — an “action” — against Baldric to recover his land? How does he set the wheels of justice in motion? [19]

To answer this question, it is helpful to go back to the time of Henry II’s predecessors. At that time, most cases of this nature would be conducted in the local court of the lord from whom Alfred and Baldric claimed to hold Blackacre. Hopefully, Alfred could obtain justice there. But just in case, he could strengthen his case by obtaining a writ from the royal Chancery (for a price), which came in the form of a demand from the King to the local lord (or to the sheriff, if Alfred held Blackacre of the King) demanding that he do right to Alfred with respect to Blackacre, so that he (the King) will hear no more of lack of justice. Appearing in the local court with such a writ would lend his cause a certain prestige, since a command from one of the fierce Norman kings was not something to be taken lightly.

So long as Alfred duly paid the required fee for the writ, the King was not in the habit of enquiring into the actual merits of a given case. Assuming that Baldric believed his claim to Blackacre to be just, what option did he have at this point? Well, he too could go to the Chancery, pay his fee, and obtain a writ demanding that justice be done to him with respect to Blackacre. Now we have two competing and contradictory writs, one demanding that Blackacre be given to Alfred, and another that it be given to Baldric.

Too many of these “wars of writs” were occurring and were understandably making the King’s justice look a little ridiculous. So at some point it became the practice that words would be added to the writ to the effect that justice was to be done to Alfred with respect to Blackacre unless after some process it was determined that the command ought not to be executed. Thus, there now had to be some kind of trial to determine the merits of Alfred’s case. Baldric must be given his opportunity to refute Alfred’s claim and demonstrate his own title.

By the time of Henry II, things had gone a step further: Now, since the King had become so involved in the case, and since his reputation was at stake, it only made sense that the case be removed entirely from the local court and tried by his own justices. Thus we have the development of two of the so-called original writs, the writ of praecipe and the writ of right. The former was named after the Latin opening words of the writ, “Command [Praecipe] X that he…” and applied to cases begun in the King’s court, i.e. involving the King’s own tenants. The writ of right applied to cases begun in a lord’s court, but their intents were basically the same. In full, a sample writ of right read as follows:

The King to K [the local lord] greeting. We command you that without delay you do full right to A of one messuage with the appurtenances in Trumpington which he claims to hold of you by free service of [so much] per annum for all service, of which X deforceth him. And unless you will do this, let the sheriff of Cambridge do it that we may hear no more clamour thereupon for want of right. [20]

The writ of right ended up defining the concept known as “legal memory”. In order to give security to title and to curb excess litigation, it was decided to fix a time of limitation before which one needn’t prove his title in a writ of right. By a statute of 1275, this time was fixed as 1189, the first year of the reign of Richard I. [21] This meant that so long as one could trace one’s lawful title back to 1189, one need go back no further and no challenger was allowed to claim an older title. Thus, anything before that year was considered “time immemorial”, beyond the reach of legal memory.

We should never underestimate the extent to which bureaucracy and the needs of administration shaped the development of substantive law. This point is well-illustrated by the development of the writ system and the forms of action. We have seen that a legal action at common law was initiated by obtaining a writ from Chancery in the name of the King, commanding someone — a sheriff or a lord — to do justice to a plaintiff with respect to some matter. It was only natural that similar situations would come up repeatedly, and it was equally natural that the bureaucrats in Chancery would wish to save themselves some time and effort by keeping a record of these writs so that they could be re-used, rather than reinventing the wheel with each case: “The clerks of Chancery, who wrote hundreds of the various types of Common Law writs, must quickly have felt the need for a formulary, from which to copy the stereotyped phrases. This also acquired legal significance, for no understanding of the Common Law and its procedure was possible without knowledge of its writs.” [22] Anyone familiar with bureaucracy can attest to how administrative procedure, however rational and well-intentioned at the beginning, too easily becomes procedure for procedure’s sake. Rather than expending effort to frame a new writ for cases that did not quite fit the old ones in the register, rigidity and formalism set in: it became very difficult to obtain a writ unless one could fit one’s case to the existing writs. Throughout much of the Middle Ages the forms of action at common law were more or less fixed. However, as we’ll see when we look at actions like trespass and ejectment, this rigidity was breaking down in Richard’s time. Courts were willing to entertain suits “on the case”, whereby legal fictions were used to extend the use of old writs to new facts. [23]

The subject of the registry of writs brings up a figure who may be of incidental interest to Ricardians. Sir Anthony Fitzherbert (1470-1538) was the author of the New Natura Brevium (1534), a compendium, with commentary, of all the writs then in existence. It became a standard legal text and is still cited occasionally by courts. Anthony was the sixth son of Ralph Fitzherbert (d. 1483), lord of the manor of Norbury, in Derbyshire, which Anthony eventually inherited after the deaths of all his elder brothers. A plaster cast of Ralph Fitzherbert’s beautiful alabaster effigy is on display in the Victoria and Albert Museum. The effigy is of interest because Ralph’s figure bears the Yorkist livery collar of alternating suns and roses, with the white boar livery badge of Richard III as a pendant. Since the wooden effigy of Ralph Neville (d. 1484) at Brancepeth in County Durham was destroyed by fire in 1998, this is the only surviving representation of a boar pendant. [24]

Let’s return to the writ of praecipe and the writ of right. Now this process, in its developed form, sounds reasonably just and efficient. This perception is quite mistaken, for there were difficulties. First, it must be noted that the actions begun by these original writs are called real actions: they tried ownership of land, not seisin. Thus, if Alfred held Blackacre for a term of years only, or by any lesser tenure than freehold, this action was not open to him.

Another problem had to do with the sorry state of the law of evidence in the post-Conquest period. Once Alfred had brought his action to the lord’s court (with a writ of right) or to the King’s court (with a writ of praecipe), he had to prove his title. But this was normally done in manorial courts through trial by battle, plaintiff and defendant fighting either in person or by champion. [25] Thus, the outcome favoured not necessarily the party with the just title, but rather the party who had military training or was rich enough to hire a very good champion. Woe to Alfred if Baldric was a knight and he was not. If he wasn’t killed, Alfred might beg mercy (a humiliating choice), but nevertheless he would be amerced (fined) for bringing the suit in the first place. [26]

Another form of trial, common in manorial courts as well as in certain common law actions, was the “wager of law”: Alfred would bring a certain number of people to the court, usually eleven, to swear to the truth of his claim. It was not expected that these oath-helpers actually knew anything about the facts of the case. It merely meant that they could swear to Alfred’s trustworthiness. Now, ideally, in a small manor where everyone knew each other, Baldric, if he was a known scoundrel, would have difficulty finding as many men willing to vouch for him (especially since oath-helpers on the losing side were subject to fine). But if Baldric was not a known scoundrel, or could pay enough to hire the requisite oath-helpers, Alfred was out of luck and was, again, amerced for his trouble. Too often wager of law led to palpable injustice. As Chief Justice Coke (1552-1634) remarked, wager of law tempted men too easily to perjure themselves, serving as the devil’s trapdoor that led men to hell. [27]

Finally, the process was slow and lengthy, since it allowed of many “essoins” or delays. Indeed, one who reads the early treatise writers on the common law, such as Glanvill or Bracton, is struck by the amount of space devoted to discussing the elaborate law surrounding these essoins. Sir John Fortescue (c. 1394-1479), Chief Justice of the King’s Bench under Henry VI, saw them as a peculiarly English practice, and as such, a matter for praise. [28] However, English plaintiffs who actually had to rely on English courts for legal redress saw little to praise in them. One example of how dilatory an action could become due to essoins is the practice of what was called “fourching in essoins”:

If two joint tenants were sued, say by writ of right, each could tender excuses… for non-appearance. They could both be ill in bed for a year and a day, but after that they must appear to answer the action. The ingenious idea occurred to somebody of contriving that each be ill alternately, and the courts accepted this practice. In one case the two tenants keep at it for eight years, and we never find out if they ever stopped until the death of one caused the writ to abate, and the demandant had to begin all over again. [29]

In short, the original real actions were slow, they were risky to initiate, and they could be far from just in outcome, so it is no surprise that they fell into disuse and were replaced by the so-called “possessory” actions, of which the two most important for our purposes were mort d’ancestor and especially novel disseisin. [30] Mort d’ancestor was an action by which an heir recovered seisin of his inheritance, where someone entered into possession before the heir did.

The point of novel disseisin was simple: to put the unjustly dispossessed back in possession of lands. There were several key differences between this and the original writs of right and praecipe. First, it protected possession (seisin) only; it did not interest itself in the question of title. This is why it is classed as a “possessory” action, as opposed to a “real” action. The effect of the action was to privilege possession and to shift the burden of proving title to the disseisor, who would now have to launch a real action, with all the risk and delay that entailed.

Second, the action was tried in King’s Bench rather than Common Pleas. This is because the King took very seriously the idea that everyone ought to be able peaceably to enjoy his property, and that if you have a dispute over title, you ought to sue out a writ of right rather than take the law into your own hands and disturb someone’s quiet possession. This was especially the royal attitude after the disturbances of the anarchy under King Stephen. A disseisin was therefore regarded as a disturbance of the King’s peace and, as such, had a criminal element to it.

Third, as the adjective “novel” implies, the dispossession (disseisin) had to be recent — usually the writ would contain a qualification that it had to have occurred, say, since the last return of the King out of Normandy.

Fourth, the process was less risky and was faster. The trial was by jury rather than by combat, and it did not allow essoins.

Fifth, the action was tried by assize, which meant that litigants didn’t have to travel to wherever the King was, or to Westminster.

The writ ran thus:

The King to the sheriff greeting. A hath complained unto us that X unjustly and without judgment hath disseised him of his freehold in Trumpington after the last return of our lord the king from Brittany into England. And therefore we command you that, if the aforesaid A shall make you secure to prosecute his claim, then cause that tenement to be reseised and the chattels which were taken in it and the same tenement with the chattels to be in peace until the first assize when our justices shall come into those parts. And in the meantime you shall cause twelve free and lawful men of that venue to view that tenement and their names to be put into the writ… [31]

There were two main drawbacks to novel disseisin, leading to its eventual disuse: One was that it only restored possession; it did not award damages. The other was that it only protected those who held by free tenure (in fee simple or for life). If you held for term of years you had no action. This unsatisfactory situation changed in the 15th century, a period when the leasehold for term of years was becoming increasingly common. [32]

There was a certain writ of trespass, known as trespass quare clausum fregit that was open to termors. However, this action had two shortcomings. First, it only gave damages; it did not put the termor back in possession. Second, as the Latin name implies, the disseisin in question had to have occurred through some manner of unlawful forcible entry (“breaking one’s close”). [33] Sometime in Henry VII’s reign it came about that one could regain possession through an action for trespass, and around the same time the action of ejectment became available to all who lost possession, with or without violence or forcible entry.

Because they were faster and more flexible, ejectment and trespass became the preferred methods of trying title to land, not just for termors but also for freeholders, and the real actions (praecipe and writ of right) and the possessory ones (novel disseisin, mort d’ancestor) fell into disuse. [34] This process was just getting underway in Richard’s time and accelerated under the Tudors.


[1] Sometimes expressed as the ius utendi, ius fruendi, and ius abuteni: the right to use, fruits, and abuse or waste. To which we might add the ius alieni, or right to alienate. See Lawson and Rudden, The Law of Property (1982), p. 8n.

[2] From the Latin tenere, “to hold”.

[3] Blackstone, Commentaries, II.59: “Almost all the real property of this kingdom is by the policy of our laws supposed to be granted by, dependent upon, and holden of some superior or lord, by and in consideration of certain services to be rendered to the lord by the tenant or possessor of this property.”

[4] See Simpson, An Introduction to the History of the Land Law, p. 6. Rolland’s service was eventually commuted to a money payment.

[5] See ibid. pp. 15-20.

[6] Quia emptores, literally, “because the buyers”.

[7] In bastard feudalism, personal service and incidents were replaced with direct money payments into a treasury, which the nobles used to buy and maintain their own standing forces of retainers. Hence, the primary allegiance of such retainers was to their lord rather than to the King. Bastard feudalism has been partly blamed for the Wars of the Roses.

[8] See Littleton, 1a ff.

[9] Though it must be kept in mind that under feudalism, lands were not devisable by will as they are today. If you wanted your lands after death to pass to someone other than your heir in law, you would have to set up a “use” or trust for the purpose. Uses will be discussed below.

[10] An estate pur auter vie was the best estate a life tenant could pass on: he could convey an estate that lasted for the duration of another’s life, namely his own. See Simpson, Introduction, pp. 67 and 86-87.

[11] Coke on Littleton, 7.58.

[12] Ibid. 8.68ff.

[13] There were exceptions. For example, cases involving the King’s revenue were in the jurisdiction of the Exchequer court rather than King’s Bench. And as we’ll see, there were certain actions between subjects not directly involving the King that were heard before King’s Bench, for reasons to be explained.

[14] This was further guaranteed in Magna Carta, sec. 17 (A. E. Dick Howard, editor). See also Coke, Institutes, Second Part, ch. 11 (in Coke, Selected Writings, Vol. 2, p. 800); Blackstone, Commentaries, III.38. For a more detailed history of the development of the common law courts, see van Caenegem, The Birth of the English Common Law (1973).

[15] Coke, Institutes, Fourth Part, ch. 7 (in Selected Writings, Vol. 2, p. 1174).

[16] Howard (ed.), Magna Carta, sec. 18. See also, Coke, Institutes, Second Part, ch. 12 (Selected Writings, Vol. 2, p. 805). Coke derived the term “assize” from the Latin assideo, to sit together.

[17] Dickens gave a grim picture of the slow wheels of 19th-century Chancery justice in Bleak House, through the fictional case of Jarndyce v. Jarndyce, which had dragged on for generations. For a brief description of the Chancery’s jurisdiction, see Blackstone, Commentaries, III.46ff. On equity, see Maitland, Equity: A Course of Lectures (1947).

[18] This is not entirely true. There was an assize of nuisance that allowed for abatement rather than damages, but it only applied to cases where the nuisance in question interfered with the plaintiff’s seisin. Also, the action was only available to freeholders and not, for example, to termors. See Blackstone, Commentaries, III.220-221.

[19] The development of the original writs outlined here can be read in more detail in Caenegem, The Birth of the English Common Law, pp. 26-30. See also Maitland, The Forms of Action at Common Law, pp.17-20; Pollock and Maitland, The History of English Law before the Time of Edward I, vol. II, pp. 65-66.

[20] The example is from Maitland, The Forms of Action, p. 67. He adapted it from one found in Fitzherbert, New Natura Brevium, 1G.

[21] Hale, The History of the Common Law of England, pp. 3-4.

[22] Caenegem, The Birth of the English Common Law, p. 30.

[23] Archaic as they seem, these “originating” writs, with their “The King to the sheriff of X greeting”, were only officially abolished in 1980! See Baker, “The Abolition of Original Writs,” p. 284. They have been replaced by a summons, directed to a defendant, ordering her to appear in court to answer to the plaintiff’s claim.

[24] The Fitzherberts had possessed Norbury since the twelfth century and continued to do so until they sold it in 1881. The family remains Catholic to this day.

[25] Simpson, An Introduction to the History of the Land Law, p.26.

[26] The last known trial by battle in England occurred in 1446. Megarry, A New Miscellany-at-Law, p. 65. It was not formally abolished until 1819.

[27] Coke, Reports, Fourth Part, Slade’s Case (in Selected Writings, Vol. I, p. 123).

[28] Fortescue, In Praise of the Laws of England, ch. 53.

[29] Simpson, Introduction, p. 41.

[30] Maitland, Forms of Action, pp. 22-26; Pollock and Maitland, II.48-65.

[31] Maitland, The Forms of Action at Common Law, p. 68; Fitzherbert, New Natura Brevium, 177E.

[32] This was a result of the labour shortage that followed the Black Death, which led to an increase in the number of free tenants (as opposed to villeins).

[33] For this reason, it was tried at the King’s Bench, due to the implication that the King’s peace had been broken. See Blackstone, Commentaries, III.42. See also Hale, The History of the Common Law of England, p. 111: “Because the Statute of 8 Hen. 6. had helped Men to an Action to recover their Possessions by a Writ of Forcible Entry, even while the Method of Recovery of Possessions by Ejectments was not known or used.”

[34] Where a nuisance or trespass involved interference with plaintiff’s enjoyment of his property, the plaintiff obviously had to establish that it was his property. Hence trespass became a convenient method of trying title.

Tuesday, March 14, 2017

Fishing Tales and Clickbait

Sea monsters, according to the National Post
Once upon a time, coming out of high school, my plan was to become a journalist. I applied to a journalism program, but when the acceptances came, I went with a second pick instead, and became an English major. Even way back then, I somehow felt that journalist was, if not pure hackery, at least a not quite respectable profession. That opinion has only solidified over time. Now I tend to think of journalism as a profession for people who are clever with words but plodding of thought. And as time goes on, I think the former trait is no longer a job requirement.

The more appropriate label for the practitioner of the journalist’s trade seems now to be “content provider”. And the purpose of content is not to inform; it’s to entertain, and to manipulate people into clicking the left button on their mouse or tap their phone in such a way as to please advertisers.

One Canadian newspaper of note seems to have found its own remarkable strategy for generating these clicks and taps. It seems that the National Post has decided that running stories about sea creatures are the royal road to page views. Take this gem from July 23, 2015 headlined “Fisherman on hunt for cod reels in a more fearsome catch in rare Newfoundland shark encounter”. Fearsome catch! Rare encounter! Indeed. Someone in Newfoundland fishing for cod hooked a porbeagle shark. Then they cut it loose. That’s pretty much the story. In this case, the porbeagle was 2 metres long. The article is accompanied by a sidebar containing facts about porbeagles. One of these helpfully informs us that the maximum length of a porbeagle is 2.5 metres. There is also a map showing the porbeagle’s geographical range. Newfoundland is within this range. Stop the presses! A common species of shark of around average size was caught in its home waters!

So, the “rare encounter” in the headline can charitably be called misleading. How about the descriptor “fearsome”? The sidebar says “Attacks on humans: 3 (2009)”. Now, does this mean that there were three porbeagle attacks in 2009? If so, the number is perhaps non-negligible. Or, does it rather mean that there have been three attacks cumulatively in the records as of 2009? If the latter is the case, then it doesn’t seem like much. It is not made clear which meaning is intended, and this vagueness was likely intentional. For when we turn to the Wikipedia page for the porbeagle shark, we are told that “Only a few shark attacks of uncertain provenance have been attributed to the porbeagle.” This would seem to indicate that the three attacks are cumulative. Further on, the same source says that “[t]he porbeagle has very rarely, if ever, bitten swimmers or boats. As of 2009, the International Shark Attack File attributes three bites to this species, one provoked and none fatal, and two on boats.” So it is not so fearsome after all.

Nevertheless, using porbeagles as clickbait (pardon the pun) must have been effective enough, for within a year the National Post decided to give it another try. On July 5, 2016 it ran an article headlined “Newfoundland fisherman was jigging for cod, but he came across a shark instead”. The fisherman’s name was Jim Mansfield. Again, the shark was a porbeagle, of about average size. At least this time around the article had the honesty to note that “[p]orbeagles are not uncommon in Newfoundland waters”. Unfortunately, unable to sell the incident to the reader on its rarity, it instead pitched the fearsomeness angle (pardon the pun): “Officials confirmed it was a porbeagle shark — a smaller relative of the Great White. Still, Mansfield says the shark was just as aggressive as its famous, feared cousin.”

The article mentions nothing that this particular porbeagle did that was so remarkably aggressive, other than get itself hooked. It did not attack the boat or the fisherman. Perhaps Mr. Mansfield meant that porbeagles in general are aggressive? If so, as we’ve seen, it just doesn’t hold water (pardon the pun). As noted above, a grand total of three historical attacks on humans can be credited to porbeagles. As for the Great White, according to Wikipedia, “[o]f all shark species, the great white shark is responsible for by far the largest number of recorded shark bite incidents on humans, with 272 documented unprovoked bite incidents on humans as of 2012.”

Facts are stubborn things. Sometimes, it would seem, the National Post prefers to avoid them altogether.

A couple of months before that second porbeagle article was published, on May 4, 2016, the selfsame National Post ran a story headlined “Bizarre prehistoric fish washes ashore at beach in North Carolina”. Now, with words like “bizarre” and “prehistoric”, how could I stop myself from clicking on it? The journalistic “credit” for this fish tale goes to some kid name Justin Dallaire. In any case, I realized that I had been suckered right away, because upon clicking it, the first thing I was presented with was a picture of what is clearly a sturgeon.

Dinosaurs are prehistoric. A sturgeon is not “prehistoric”, because it exists today. Yes, it evolved millions of years ago. But so did the porbeagle shark, and we don’t call porbeagles “prehistoric”, do we? Let us be charitable and assume that “prehistoric” was a simply a poor choice of words and was not in any way employed sensationally to generate clicks or bring Jurassic Park to the reader’s mind. Let us grant that Mr. Dallaire or the headline writer intended to write “primitive” instead. Or perhaps “ugly”.

To be specific, the fish in question was an Atlantic sturgeon, and last I checked, North Carolina has a coast on the Atlantic. Again, just as in the cases of the above-mentioned porbeagles, this particular fish washed ashore in a place that was well within its species’ range. So the word “bizarre” cannot refer to where it was found. Again, though a sturgeon may appear to be “ugly” to some people, it is not some kind of sea monster, as the sensational headline might suggest. (Hint to Mr. Dallaire: sturgeons are where caviar comes from.)

Granted, there is one sense in which an Atlantic sturgeon is “bizarre”: due to the sad fact that it is endangered, it has become relatively rare.

Speaking of which, it seems that if you’re a fish, being endangered is a good thing, because if you’re a common species (“plentiful” seems to be the preferred term), the National Post will run articles about how you’re the “new thing” to eat, accompanied by interesting recipes. As an instance of this, take Laura Brehaut’s January 10, 2017 piece in the Food and Drink section of the National Post, headlined “Why now is the time for you to develop a taste for dogfish”. The general drift of this article is that, with so many other species nearly fished out, we should make dogfish the new codfish. Apparently, with dogfish being so plentiful, we’re missing out on an opportunity to rethink this species’ status as “trash fish”. Even David Suzuki, the celebrity eco-warrior and supreme hypocrite, is recommending it. (Sorry, I refuse to be lectured to about my carbon footprint by a man with five children.)

Yum, yum. Count me in…

Except that dogfish is not a sustainable choice. In North America, the Marine Stewardship Council has suspended the species’ sustainability certification, not because dogfish numbers are declining — they have officially been declared recovered from previous overfishing (but for how much longer, once Brehaut, Suzuki et al. get their way?). Rather, there is concern about by-catch, specifically of Atlantic cod. And in Europe, the EU has dogfish on its list of species that have seen 95% or more decline.

In fact, this is just another junk fish being sold to us as the “new thing” because we’ve fished all the old “new things” out of existence. Live long enough and the list of these “new things” becomes depressing, such as tilapia, Chilean sea bass, and some other new fish I saw last week in the grocery store, the outlandish name of which presently escapes me.

Furthermore, part of Brehaut's sales pitch is that the only drawback to eating dogfish is that you need to peel its skin. True enough. But what is not mentioned is that the flesh also requires several hours’ worth of soaking. Being a type of shark, it stores its urine in its flesh. Unless you like your fish smelling and tasting like ammonia, this problem must be dealt with in order to make it edible. Probably a fact worth mentioning. But again, facts are stubborn things…

Bon app├ętit.

Friday, March 10, 2017

A Bed of Ashes

In Homer’s Odyssey, 18.327-328, Odysseus has returned to his hall in Ithaca, disguised as a scruffy, aged beggar, and is plotting his revenge upon Penelope’s suitors. In a conference with Penelope, he is addressed thus by Melantho, one of Penelope’s faithless handmaids:

“Wretched stranger, you must be out of your mind, unwilling to go to a smithy to sleep, or to a place of public resort…”

Now, at first sight, one might think this a bit odd. Obviously, a beggar is presumably too poor to find accommodation at an inn, even assuming such a thing to exist in Homeric Greece. But why a smithy of all things?  Would we not expect him to resort to a barn or manger, as did the parents of our Saviour? However, after a moment’s thought, one is sure to come up with the answer: a blacksmith’s workshop was likely to be warm. But another question then arises: Why should a ragged beggar be any more welcome in a blacksmith’s abode than he was in the hall? The answer is that he wouldn’t be. We must not assume that the beggar would be inside, sleeping by the forge.

We get clarity on this passage from Daniel Defoe. Exhibit A is the following passage from Defoe’s Colonel Jack (1722):

Those who know the Position of the Glass-houses, and the Arches where they Neal the Bottles after they are made, know that those Places where the Ashes are cast, and where the poor Boys lye, are Caveties in the Brick-work, perfectly close, except at the Entrance, and consequently warm as the Dressing-room of a Bagnio...(p. 16)

For the homeless children of Defoe’s London, a glass manufactory was similar to a smithy in ancient Greece, in that it relied on the constant operation of a furnace burning at high heat, and it used a lot of fuel, the spent remains of which would require to be regularly scooped out and disposed of. Homeless children would sleep in these still-warm piles of ashes, especially in the wintertime:

“in Winter we got into the Ash-holes and Nealing-Arches in the Glass-house, call’d Dallows’s Glass-house, near Rosemary-Lane, or at another Glass-house in Ratcliff-high-way.” (p. 9)

Actually, in these passages we see that it was not so much the ashes themselves, but rather the way they heated the surrounding brick enclosure, that created the ambient warmth. Although it’s not made entirely clear in the way Defoe describes it, it might be possible to surmise that the brickwork in question comprised the outer wall backing the forge itself, also providing warmth.

These homeless children in 18th- and 19th-century London came to be called “blackguard children” or simply “blackguards”. Consulting the OED and other sources, there seems to be some uncertainty around the origins of the term. It dates to the early 16th century, and seems originally to have been applied to the lower sort of servants who worked as scullions and kitchen knaves. But these sources also mention — without offering any evidence — that it may have originated from some military unit that wore black uniforms. That is taking the term too literally. More likely it was a mock-military term, which also had reference to servants’ livery.

The “black” part of the term “blackguard” should by now be obvious: kitchen knaves were grimy and sooty from being around fires, and homeless children would have been blackened by the ashes in which they slept. In the case of the latter, it also pointed to the fact that so many of them supported themselves as shoe blacks. Both of these reference points come together in this passage from Colonel Jack:

“As for my Person, while I was a dirty Glass-Bottle House Boy, sleeping in the Ashes, and dealing always in the Street Dirt, it cannot be expected but that I look’d like what I was, and so did we all; that is to say, like a Black your Shoes your Honour, a Beggar Boy, a Black-Guard Boy, or what you please…” (p. 7)

Of course, it was not just children that slept rough. We know from Samuel Johnson’s Life of Savage (1744) that the poet Richard Savage also slept in the ashes of glass-houses during his creditor-dodging rambles and frequent bouts of homelessness:

“He lodged as much by Accident as he dined and passed the Night, sometimes in mean Houses, which are set open at Night to any casual Wanderers, sometimes in Cellars among the Riot and Filth of the meanest and most profligate of the Rabble; and sometimes, when he had no Money to support even the Expences of these Receptacles, walked about the Streets till he was weary, and lay down in the Summer upon a Bulk, or in the Winter with his Associates in Poverty, among the Ashes of a Glass-house.” (p. 97)

Here, in the words “meanest and most profligate of the rabble” we have the makings of the primary meaning of “blackguard” as it was typically used in the 19th century: “a low, contemptible person; a scoundrel.”


DEFOE, Daniel. Colonel Jack. Samuel Holt Monk (ed.). London: Oxford University Press, 1965.

HOMER. Odyssey (2 vols.). A. T. Murray (trans.). Cambridge, MA: Harvard University Press, 2004.

JOHNSON, Samuel. Life of Savage. Clarence Tracy (ed.). Oxford: Clarendon Press, 1971.