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Forms of Action at Common Law

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Internet History Sourcebooks Project
Medieval Sourcebook:
F. W. Maitland:
The Forms of Action at Common Law, 1909

Lecture I
Lecture II
Lecture II
Lecture IV
Lecture V
Lecture VI
Lecture VII
Select Writs

Lecture I.
I propose to begin by speaking briefly of the Forms of Action, with especial relation to those which
protected the possession and ownership of land. It may---I am well aware of it---be objected that
procedure is not a good theme for academic discussion. Substantive law should come first--adjective
law, procedural law, afterwards. The former may perhaps be studied in a university, the latter must be
studied in chambers. As to obsolete procedure, a knowledge of it can be profitable to no man, least of
all to a beginner. With this opinion I cannot agree. Some time ago I wished to say a little about seisin,
which still, with all our modern improvements, is one of the central ideas of Real Property Law; but to
say that little I found impossible if I could not assume some knowledge of the forms of action. Let us
remember one of Maine's most striking phrases, "So great is the ascendancy of the Law of Actions in
the infancy of Courts of Justice, that substantive law has at first the look of being gradually secreted in
the interstices of procedure." [Maine, Early Law and Custom, p. 389]. Assuredly this is true of our real
property law, it has been secreted in the interstices of the forms of action. The system of Forms of
Action or the Writ System is the most important characteristic of English medieval law, and it was not
abolished until its piecemeal destruction in the nineteenth century.
What was a form of action? Already owing to modern reforms it is impossible to assume that every law
student must have heard or read or discovered for himself an answer to that question, but it is still one
which must be answered if he is to have more than a very superficial knowledge of our law as it stands
even at the present day. The forms of actlon we have buried, but they still rule us from their graves.;  Let
us then for awhile place ourselves in Blackstone's day, or, for this matters not, some seventy years later
in 1830, and let us look for a moment at English civil procedure.

Let it be granted that one man has been wronged by another; the first thing that he or his advisers have
to consider is what form of action he shall bring. It is not enough that in some way or another he
should compel his adversary to appear in court and should then state in the words that naturally occur
to him the facts on which he relies and the remedy to which he thinks himself entitled. No, English law
knows a certain number of forms of action, each with its own uncouth name, a writ of right, an assize
of novel disseisin or of mort d'ancestor, a writ of entry sur disseisin in the per and cui, a writ of
besaiel, of quare impedit, an action of covenant, debt, detinue, replevin, trespass, assumpsit,
ejectment, case. This choice is not merely a choice between a number of queer technical terms, it is a
choice between methods of procedure adapted to cases of different kinds. Let us notice some of the
many points that are implied in it.
(i) There is the competence of the court. For very many of the ordinary civil cases each of the three
courts which have grown out of the king's court of early days, the King's Bench, Common Pleas and
Exchequer is equally competent, though it is only by means of elaborate and curious fictions that the
King's Bench and the Exchequer can entertain these matters, and the Common Pleas still retains a
monopoly of those actions which are known as real.
(ii) A court chosen, one must make one's adversary appear; but what is the first step towards this end?
In some actions one ought to begin by having him summoned, in others one can at once have him
attached, he can be compelled to find gage and pledge for his appearance. In the assize of novel
disseisin it is enough to attach his bailiff.
(iii) Suppose him contumacious, what can one do? Can one have his body seized? If he cannot be
found, can one have him outlawed? This stringent procedure has been extending itself from one form
of action to another. Again, can one have the thing in dispute seized? This is possible in some actions,
impossible in others.
(iv) Can one obtain a judgment by default, obtain what one wants though the adversary continues in
his contumacy? Yes in some forms, no in others.
(v) It comes to pleading, and here each form of action has some rules of its own. For instance the
person attacked---the tenant he is called in some cases, the defendant in others---wishes to oppose the
attacker---the demandant he is called in some actions, the plaintiff in others---by a mere general
denial, casting upon him the burden of proving his own case, what is he to say? In other words, what is
the general issue appropriate to this action? In one form it is Nihil debet, in another Non assumpsit, in
another "Not guilty", in others, Nul tort, nul disseisin.
(vi) There is to be a trial; but what mode of trial? Very generally of course a trial by jury. But it may be
trial by a grand or petty assize, which is not quite the same thing as trial by jury; or in Blackstone's day
it may still conceivably be a trial by battle. Again in some forms of action the defendant may betake
himself to the world-old process of compurgation or wager of law. Again there are a few issues which

are tried without a jury by the judges who hear witnesses.
(vii) Judgment goes against the defendant, what is the appropriate form of execution? Can one be put
into possession of the thing that has been in dispute? Can one imprison the defendant? Can one have
him made an outlaw? or can he merely be distrained?
(viii) Judgment goes against the defendant. It is not enough that he should satisfy the plaintiff's just
demand; he must also be punished for his breach of the law---such at all events is the theory. What
form shall this punishment take? Will an amercement suffice, or shall there be fine or imprisonment?
Here also there have been differences.
(ix) Some actions are much more dilatory than others; the dilatory ones have gone out of use, but still
they exist. In these oldest forms---forms invented when as yet the parties had to appear in person and
could only appoint attorneys by the king's special leave---the action may drag on for years, for the
parties enjoy a power of sending essoins, that is, excuses for non-appearance. The medieval law of
essoins is vast in bulk; time is allowed for almost every kind of excuse for non-appearance---a short
essoin de malo veniendi, a long essoin de malo lecti. Nowadays, all is regulated by general rules with a
wide discretion left in the Court. In the Middle Ages discretion is entirely excluded; all is to be fixed by
iron rules. This question of essoins has been very important---in some forms, the oldest and solemnest,
a party may betake himself to his bed and remain there for year and day and meanwhile the action is
These remarks may be enough to show that the differences between the several forms of action have
been of very great practical importance---a "form of action" has implied a particular original process, a
particular mesne process, a particular final process, a particular mode of pleading, of trial, of judgment.
But further to a very considerable degree the substantive law administered in a given form of action has
grown up independently of the law administered in other forms. Each procedural pigeon-hole contains
its own rules of substantive law, and it is with great caution that we may argue from what is found in
one to what will probably be found in another; each has its own precedents. It is quite possible that a
litigant will find that his case will fit some two or three of these pigeon-holes. If that be so he will have a
choice, which will often be a choice between the old, cumbrous, costly, on the one hand, the modern,
rapid, cheap, on the other. Or again he may make a bad choice, fail in his action, and take such comfort
as he can from the hints of the judges that another form of action might have been more successful.
The plaintiff's choice is irrevocable; he must play the rules of the game that he has chosen. Lastly he
may find that, plausible as his case may seem, it just will not fit any one of the receptacles provided by
the courts and he may take to himself the lesson that where there is no remedy there is no wrong.
The keynote of the form of action is struck by the original writ, the writ whereby the action is begun.
From of old the rule has been that no one can bring an action in the king's courts of common law
without the king's writ; we find this rule in Bracton: Non potest quis sine brevi agere [Bract., fo. 413b].
That rule we may indeed say has not been abolished even in our own day. The first step which a

plaintiff has to take when he brings an action in the High Court of Justice is to obtain a writ. But there
has been a very great change. The modern writ is in form a command by the king addressed to the
defendant telling him no more than that within eight days he is to appear, or rather to cause an
appearance to be entered for him, in an action at the suit of the plaintiff, and telling him that in default
of his so doing the plaintiff may proceed in his action and obtain a judgment. Then on the back of this
writ the plaintiff, in his own or his adviser's words, states briefly the substance of his claim: "The
plaintiff's claim is £1000 for money lent", "The plaintiff's claim is for damages for breach of contract to
employ the plaintiff as traveller", "The plaintiff's claim is for damages for assault and false
imprisonment", "The plaintiff's claim is to recover a farm called Blackacre situate in the parish of Dale
in the county of Kent". We can no longer say that English law knows a certain number of actions and
no more, or that every action has a writ appropriate to itself; the writ is always the same, the number of
possible endorsements is as infinite as the number of unlawful acts and defaults which can give one
man an action against another. All this is new. Formerly there were a certain number of writs which
differed very markedly from each other. A writ of debt was very unlike a writ of trespass, and both were
very unlike a writ of mort d 'ancestor or a writ of right. A writ of debt was addressed to the sheriff; the
sheriff is to command the defendant to pay to the plaintiff the alleged debt, or, if he will not do so,
appear in court and answer why he has not done so. A writ of trespass is addressed to the sheriff; he is
to attach the defendant to answer the plaintiff why with force and arms and against the king's peace he
broke the plaintiff's close, or carried off his goods, or assaulted and beat him. A writ of mort d 'ancestor
bade the sheriff empanel a jury, or rather an assize, to answer a certain question formulated in the writ.
A writ of right was directed not to the sheriff but to the feudal lord and bade him do right in his court
between the demandant and the tenant. In each case the writ points to a substantially different
In the reign of Henry III Bracton had said Tot erunt formulae brevium quot sunt genera actionum
[Bract. fo. 413b. A whole group of these forms is ascribed to Bracton's master, W. Raleigh--one might
well have spoken of actiones Raleighanae]. There may be as many forms of action as there are causes
of action. This suggests, what may seem true enough to us, that in order of logic Right comes before
Remedy. There ought to be a remedy for every wrong; if some new wrong be perpetrated then a new
writ may be invented to meet it. Just in Bracton's day it may have been possible to argue in this way;
the king's court and the king's chancery---it was in the chancery that the writs were made---enjoyed a
certain freedom which they were to lose as our parliamentary constitution became definitely
established. A little later though the chancery never loses a certain power of varying the old formulas to
suit new cases and this power was recognised by statute, still it is used but very cautiously. Court and
chancery are conservative and Parliament is jealous of all that looks like an attempt to legislate without
its concurrence. The argument from Right to Remedy is reversed and Bracton's saying is truer if we
make it run Tot erunt actiones quot sunt formulae brevium---the forms of action are given, the causes
of action must be deduced therefrom.

Of course we must not for one moment imagine that seventy years ago or in Blackstone's day litigation
was really and truly carried on in just the same manner as that in which it was carried on in the days of
Edward I. In the first place many of the forms of action had become obsolete: they were theoretically
possible but were never used. In the second place the words "really and truly" seem hardly applicable
to any part of the procedure of the eighteenth century, so full was it of fictions contrived to get modern
results out of medieval premises: writs were supposed to be issued which in fact never were issued,
proceedings were supposed to be taken which in fact never were taken. Still these fictions had to be
maintained, otherwise the whole system would have fallen to pieces; any one who would give a
connected and rational account of the system was obliged---as Blackstone found himself obliged---to
seek his starting point in a very remote age.
We will now briefly notice the main steps by which in the last century the forms of action were
abolished. First we must observe that there was a well-known classification of the forms: they were (1)
real, (2) personal, (3) mixed. I shall have to remark hereafter [See below Lecture V] that this
classification had meant different things in different ages; Bracton would have called some actions
personal which Blackstone would have called real or mixed. But at present it will be sufficient if we
note Blackstone's definitions [Bl. Comm. III, 117, 118].
Real actions, which concern real property only, are such whereby the plaintiff, here called the
demandant, claims title to have any lands, or tenements, rents, commons, or other hereditaments in
fee simple, fee tail or for term of life.
Personal actions are such whereby a man claims a debt, a personal duty, or damages in lieu thereof;
and likewise, whereby a man claims a satisfaction in damages for some injury done to his person or
Mixed actions are suits partaking of the nature of the other two, wherein some real property is
demanded, and also personal damages for a wrong sustained.
Now in 1833 the real and mixed actions were swept away at one fell swoop by the Real Property
Limitation Act of that year, 3 and 4 Will. IV, c. 27, sec. 36. That section sets out the names of 60 actions
and says that none of these and no other action real or mixed---except a writ of right of dower, a writ of
dower, unde nihil habet, a quare impedit, or an ejectment---shall be brought after 31 December 1834.
Practically for a very long time past the action of ejectment, which in its origin was distinctly a personal
action, had been made to do duty for all or almost all the actions that were now to be abolished. The
quare impedit had become the regular action for the trial of all disputes about advowsons, and, as
ejectment was here inapplicable, this had to be spared. There were special reasons for saving the two
writs of dower, since the doweress could not bring ejectment until her dower had been set out. But they
were abolished in 1860 by the Common Law Procedure Act of that year (23 and 24 Vic., c. 126, sec. 26),
and a new statutory action of a modern type was provided for the doweress. By the same Act, sec. 27,
the old quare impedit was abolished and a new statutory action was put in its place.

Meanwhile in 1832 a partial assault had been made on the personal forms. The principal personal
forms were these---Debt, Detinue, Covenant, Account, Trespass, Case, Trover, Assumpsit, Replevin.
By 2 Will. IV, c. 39 (1832) "Uniformity of Process Act"---the process in these personal actions was
reduced to uniformity. The old original writs were abolished and a new form of writ provided. In this
writ, however, the plaintiff had to insert a mention of one of the known forms of action. Another heavy
blow was struck in 1852 by the Common Law Procedure Act, 15 and 16 Vic., c. 76. It was expressly
provided (sec. 3) that it should not be necessary to mention any form or cause of action in any writ of
summons. But still this blow was not heavy enough---the several personal forms were still considered
as distinct.
The final blow was struck by the Judicature Act of 1873 and the rules made thereunder, which came
into force in 1875. This did much more than finally abolish the forms of actions known to the common
law for it provided that equity and law should be administered concurrently. Since that time we have
had what might fairly be called a Code of Civil Procedure. Of course we cannot here speak of the details
of that Code; but you will not misunderstand me if I say that the procedure which it enjoins is
comparatively formless. Of course there are rules, many rules.
We cannot say that whatever be the nature of the plaintiff's claim the action will always take the same
course and pass through the same stages. For instance, when the plaintiff's claim falls within one of
certain classes he can adopt a procedure [Commonly called (from the Order which precedes this
procedure) "Going under Order XIV"] whereby when he has sworn positively to the truth of his claim
the defendant can be shut out from defending the action at all unless he first makes oath to some good
defence. So again there are cases in which either party can insist that the questions of fact, if any, shall
be tried by jury; there are other cases in which there will be no trial by jury. Again, I must not allow you
to think that a lawyer cannot do his client a great deal of harm by advising a bad or inappropriate
course of procedure, though it is true that he cannot bring about a total shipwreck of a good cause so
easily as he might have done some years ago. The great change gradually brought about and
consummated by the Judicature Acts is that the whole course of procedure in an action is not
determined for good and all by the first step, by the original writ. It can no longer be said, as it might
have been said in 1830 that we have about 72 forms of action, or as it might have been said in 1874 that
we have about 12 forms of action. This is a different thing from saying that our English law no longer
attempts to classify causes of action, on the contrary a rational, modern classification of causes of
action is what we are gradually obtaining---but the forms of action belong to the past.
Since the Judicature Acts there are, of course, differences of procedure arising out of the character of
the various actions, whether for divorce, probate of a will, specific performance of a contract: such
differences there must be, but they can now be regarded as mere variations of one general theme-procedure in an action in the High Court of Justice. It was entirely otherwise in the Middle Ages, then
lawyers say very little of the procedure in an action, very much of the procedure in some action of a

particular kind, e.g. an assize of mort d'ancestor or an action of trespass. Knowledge of the procedure
in the various forms of action is the core of English medieval jurisprudence. The Year Books are largely
occupied by this. Glanvill plunges at once into the procedure in a writ of right. Bracton, with the
Institutes scheme before him, gives about 100 folios to Persons and Things and about 350 to the law of
We can now attempt to draw some meagre outline of the general history of these forms of action,
remembering, however, that a full history of them would be a full history of English private law.
Now I think that our first step should be to guard ourselves against the notion that from the very
beginning it was the office of the king's own court or courts to provide a remedy for every wrong. This
is a notion which we may but too easily adopt. In the first place it seems natural to us moderns,
especially to us Englishmen, that in every decently governed country there should be some one
tribunal, or some one definitely organized hierarchy of tribunals, fully competent to administer the
whole law, to do right to every man in every case. In the second place it is true that in England such a
scheme of centralised justice has existed from what, having regard to other countries, we may call a
very remote time; it has existed for some five hundred years. Ever since Edward I's time, to name a
date which is certainly not too recent, the law of England has to a very large extent been the law
administered by the king's own courts, and to be without remedy in those courts has commonly been to
be without any remedy at all. A moment's reflection will indeed remind us that we must use some such
qualifying words as "to a very large extent" when we lay down these wide propositions. Think for one
moment of the copyholder, or of his predecessor the tenant in villeinage; he was not protected in his
holding by the king's court, still to regard him as without rights would be a perversion of history. And
then think of the ecclesiastical courts with their wide jurisdiction over matrimonial and testamentary
causes; at least until the Reformation they were not in any sense the king's courts; their power was
regarded as a spiritual power quite independent of the temporal power of the state. But in the third
place we may be led into error by good masters. So long as the forms of action were still in use, it was
difficult to tell the truth about their history. There they were, and it was the duty of judges and text
writers to make the best of them, to treat them as though they formed a rational scheme provided all of
a piece by some all-wise legislator. It was natural that lawyers should slip into the opinion that such
had really been the case, to suppose, or to speak as though they supposed, that some great king (it
matters not whether we call him Edward I or Edward the Confessor, Alfred or Arthur) had said to his
wise men "Go to now! a well ordered state should have a central tribunal, let us then with prudent
forethought analyse all possible rights and provide a remedy for every imaginable wrong." It was
difficult to discover, difficult to tell, the truth, difficult to say that these forms of action belonged to very
different ages, expressed very different and sometimes discordant theories of law, had been twisted and
tortured to inappropriate uses, were the monuments of long-forgotten political struggles; above all it
was difficult to say of them that they had their origin and their explanation in a time when the king's
court was but one among many courts. But now, when the forms of action are gone, when we are no

longer under any temptation to make them more rational than they were, the truth might be discovered
and be told, and one part of the truth is assuredly this that throughout the early history of the forms of
action there is an element of struggle, of struggle for jurisdiction. In order to understand them we must
not presuppose a centralised system of justice, an omni-competent royal or national tribunal; rather we
must think that the forms of action, the original writs, are the means whereby justice is becoming
centralised, whereby the king's court is drawing away business from other courts [As an example of the
theory against which it is necessary to protest see Blackstone's account of Alfred's exploits, Comm. IV,
411: "To him we owe that masterpiece of judicial polity, the subdivision of England into tithings and
hundreds, if not into counties; all under the influence and administration of one supreme magistrate,
the king; in whom as in a general reservoir, all the executive authority of the law was lodged, and from
whom justice was dispensed to every part of the nation by distinct, yet communicating ducts and
channels; which wise institution has been preserved for near a thousand years unchanged from Alfred's
to the present time."].
Lecture II.
At the beginning of the twelfth century England was covered by an intricate network of local courts. In
the first place there were the ancient courts of the shires and the hundreds, courts older than
feudalism, some of them older than the English kingdom. Many of the hundred courts had fallen into
private hands, had become the property of great men or great religious houses, and constant
watchfulness was required on the king's part to prevent the sheriffs, the presidents of the county
courts, from converting their official duties into patrimonial rights. Then again there were the feudal
courts; the principle was establishing itself that tenure implied jurisdiction, that every lord who had
tenants enough to form a court might hold a court of and for his tenants. Above all these rose the king's
own court. It was destined to increase, while all the other courts were destined to decrease; but we
must not yet think of it as a court of first instance for all litigants; rather it, like every other court, had
its limited sphere of jurisdiction. Happily the bounds of that sphere were never very precisely
formulated; it could grow and it grew. The cases which indisputably fell within it we may arrange under
three heads.
In the first place there were the pleas of the crown (placita coronae), matters which in one way or
another especially affected the king, his crown and dignity. All infringements of the king's own
proprietary rights fell under this head, and the king was a great proprietor. But in addition to this
almost all criminal justice was gradually being claimed for the king; such justice was a profitable source
of revenue, of forfeitures, fines and amercements. The most potent of the ideas which operated for this
result was the idea of the king's peace. Gradually this peace---which at one time was conceived as
existing only at certain times, in certain places, and in favour of certain privileged persons, covering the
king's coronation days, the king's highways, the king's servants and those to whom he had granted it by
his hand or his seal---was extended to cover all times, the whole realm, all men. Then again when
Henry II introduced the new procedure against criminals by way of presentment or indictment---

placed this method of public or communal accusation by the side of the old private accusation or
appeal---he very carefully kept this new procedure in the hands of his justices and his sheriffs.
Subsequent changes diminished even the power of the sheriffs, and before the twelfth century was out
all that could be called very serious criminal justice had become the king's, to be exercised only by his
justices or by a few very highly privileged lords to whom it had been expressly granted. With the history
of criminal law we have here no great concern; only let us notice that it is in this field that the
centralising process goes on most rapidly and that the idea of the king's peace is by no means
exhausted when all grave crimes are conceived as committed against the peace of our lord the king; the
same idea will in course of time bring within the cognizance of the royal court every, the slightest,
wrongful application of physical force.
Secondly, even had feudal theory and feudal practice gone unchecked, the king as the ultimate lord of
all lords, would have been able to claim for his own court a certain supervisory power over all lower
courts. If a man could not get justice out of his immediate lord he might go to that lord's lord, and so in
the last resort to the king. We must not here introduce the notion of an "appeal" from court to court,
for that is a modern notion. In old times he who goes from court to court does not go there merely to
get a mistake put right, to get an erroneous judgment reversed; he goes there to lodge a complaint
against his lord or the judges of his lord's court, to accuse his lord of having made default in justice
(propter defectum justiciae), to accuse the judges of having pronounced a false judgment; he
challenges his judges and they may have to defend their judgment by their oaths or by their bodies. Still
the king has here an acknowledged claim to be the supreme judge over all judges, and this claim can be
pressed and extended, for if it profits the king it profits the great mass of the people also.
Thirdly, even the extremest theory of feudalism would have to allow the king to do justice between his
own tenants in chief; however little more a king may be he is at the very least a feudal lord with
tenants, and may hold, and ought to hold, a court of them and for them.
Had the worst come to the worst the king might have claimed these things, jurisdiction over his own
immediate tenants, jurisdiction when all lower lords have made default, a few specially royal pleas
known as pleas of the crown. To this he might have been reduced by feudalism. We ought not indeed to
think that in England his justice was ever strictly pent within these limits; the kingship established by
conquest was too strong for that, still he could not exceed these limits without a struggle. That his court
should fling open its doors to all litigants, should hold itself out to be a court for all cases great and
small, for all men, whosesoever men they be, is a principle that only slowly gains ground. Despite all
that was done by Henry II, despite the ebb of feudalism, we can hardly say that this principle is
admitted before the coronation of Edward I. In the middle of the thirteenth century, Bracton, a royal
judge, whose work constantly displays strong anti-feudal leanings, who has no mean idea of his
master's power, who holds the theory that all justice is in the last resort the king's, that it is merely lack
of time and strength that prevents the king from hearing every cause in person, is none the less forced
to make something very like an apology for the activity of the king's court---one class of cases must

come before it for one reason, another for another, but some reason, some excuse there must be; it
cannot yet be assumed as an obvious rule that every one whose rights have been infringed can bring his
case before the king's justices.
A little must be said about the constitution and the procedure of these communal and feudal courts. In
the courts of the shire and the hundred the judgments were made by the suitors of the court, those
freeholders who were bound to attend its periodic sittings. The court was presided over by the sheriff,
or if the hundred was one that had fallen into private hands, by the lord's steward; but the judgments
were made by the suitors; they were the judicatores of the court; it is not improbable that
in English they were called the dooms-men of the court. So in the feudal courts, the lord's steward
presided, but the tenants who owed suit of court were the dooms-men. It was for them to make the
judgments, and it is probable that if they differed in opinion the judgment of the majority prevailed.
But this judgment was not like a modern judgment. In modern German books dealing with ancient
procedure we find the startling proposition that judgment preceded proof; it was a judgment that one
party or the other to the litigation was to prove his case. Now when in our own day we speak of proof
we think of an attempt made by each litigant to convince the judge, or the jurors, of the truth of the
facts that he has alleged; he who is successful in this competition has proved his case. But in old times
proof was not an attempt to convince the judges; it was an appeal to the supernatural, and very
commonly a unilateral act. The common modes of proof are oaths and ordeals. It is adjudged, for
example, in an action for debt that the defendant do prove his assertion that he owes nothing by his
own oath and the oaths of a certain number of compurgators, or oath-helpers. The defendant must
then solemnly swear that he owes nothing, and his oath-helpers must swear that his oath is clean and
unperjured. If they safely get through this ceremony, punctually repeating the right formula, there is an
end of the case; the plaintiff, if he is hardy enough to go on, can only do so by bringing a new charge, a
criminal charge of perjury against them.
They have not come there to convince the court, they have not come there to be examined and crossexamined like modern witnesses, they have come there to bring upon themselves the wrath of God if
what they say be not true. This process is known in England as "making one's law": a litigant who is
adjudged to prove his case in this way is said to "wage his law" (vadiare legem), when he finds security
that on a future day he will bring compurgators and perform this solemnity; then when on the
appointed day he comes and performs that ceremony with success, he is said to "make his law" (facere
legem). An ordeal is still more obviously an appeal to the supernatural; the judgment of God is given;
the burning iron spares the innocent, the water rejects the guilty. Or again the court adjudges that
there must be trial by battle; the appellor charges the appellee with a crime, the appellee gives him the
lie; the demandant's champion swears that he saw the demandant seised of the land, and is ready to
prove this by his body; the wit of man is at fault in presence of a flat contradiction; God will show the
truth. It is hard for us to say how this ancient procedure worked in practice, hard to tell how easy it was

to get oath-helpers who would swear falsely, hard to tell how much risk there was in an ordeal. The
rational element of law must, it would seem, have asserted itself in the judgment which decided how
and by whom the proof should be given; the jurisprudence of the old courts must have been largely
composed of the answers to this question; and some parts of it are being recovered, for example we can
see that even before the Norman Conquest the man who has been often accused has to go to the ordeal
instead of being allowed to purge himself with oath-helpers. But the point now to be seized is that the
history of the forms of action presupposes this background of ancient courts with their unprofessional
judges, their formal, supernatural modes of proof.
In its constitution and in its procedure the king's court is ahead of the other courts. Theoretically, from
the Conquest onwards, it may be a feudal court, one in which all the king's tenants in chief, or such at
least of them as are deemed barons, are entitled and bound to sit under the presidency of the king, his
high steward or his chief justiciar. To this day the king's highest court of all is the assembly of the lords
spiritual and temporal. But practically a small knot of trained administrators, prelates and barons,
becomes the king's court for ordinary judicial purposes. The reforms of Henry II, the new actions
invented in his reign, brought an ever-increasing mass of litigation before the royal court. It became
more and more a group of men professionally learned in the law. Gradually, as is well known, this
group breaks up into three courts, there are the three courts of common law, the King's Bench,
Common Bench, and Exchequer. This process is not complete until Edward I's reign; but we may say
that for a century before this the king's court for ordinary judicial purposes has been no feudal court of
tenants in chief, but a court of professional justices; the justices of Henry III's time are often men who
have had a long education in the subordinate offices of the court and the chancery.
As to procedure, all the old formal modes of proof have been known in the king's court. It made use of
the ordeal until that ancient process was abolished by the Lateran Council of 1215. Trial by battle, as we
all know, was not abolished until 1819 [59 Geo. III, c. 46], and wager of law was not abolished until
1833 [3 & 4 Will. IV, c. 42, sec. 13]. For a very long time before this any practical talk of these
barbarisms had been very rare, and for a still longer time pent within ever-narrowing limits; still, if we
are to understand the history of the forms of action, we must be mindful of these things; a long chapter
in that history might be entitled Dodges to evade Wager of Battle, a still longer chapter, Dodges to
evade Wager of Law. We must not suppose that the unreasonableness of these archaic institutions was
suddenly perceived; the cruelties of the peine forte et dure had their origin in the sentiment that trial
by jury is not a fair mode of trial save for those who have voluntarily consented to it; the remembrance
of the ordeal was dear to the people; they would "swim a witch" long centuries after the Lateran
Council; so late as 1376 we find that wager of law is still popular with the commons of England, they
pray that there may be wager of law in the Exchequer as in the other courts [Rot. Parl. III, 337]. But to
a very great extent the early history of the forms of action is the history of a new procedure gradually
introduced, the procedure which in course of time becomes trial by jury. It would be needless to repeat
here what has been sufficiently said elsewhere about the first germs of the jury. The Frankish kings,

perhaps assuming to themselves the rights of the Roman fiscus, had placed themselves outside the
ancient formal procedure of the popular courts, had sought to preserve and enforce their royal rights
by compelling the inhabitants of the district, or a representative body of such inhabitants, to swear that
they would tell the truth as to the nature and extent of these rights. Further, they gave or sold this
privilege to specially favoured persons, especially to the churches which were under their patronage.
The favoured person, if possessions were attacked, need not defend them by battle, or ordeal, or any of
the ancient modes of proof, but might have an inquest of neighbours sworn to tell the truth about the
matter in hand. Immediately after the Norman Conquest we find that this procedure has been
introduced into England, and it is employed on a magnificent scale. Domesday Book is the record of
the verdicts of bodies of neighbours sworn to tell the truth, and its main object is the ascertainment
and preservation of the king's rights. Very soon after this we find the inquest or jury employed in the
course of litigation; for instance, in a suit touching the rights of the Church of Ely the Conqueror
commands that those who best know how the lands lay in the days of the Confessor shall be sworn to
tell the truth about them; so a number of the good folk of Sandwich are sworn to tell the truth about a
certain ship, and they testifying in favour of the Abbot of St. Augustine's, the abbot is "re-seised" of the
ship. The right to a jury makes its appearance as a royal prerogative, a prerogative, the benefit of which
the king can give or sell to those who obtain his grace. We see traces of this origin even at a very late
time; it is an established maxim that one cannot wage one's law against the king. In an action for debt
upon simple contract, were the plaintiff a subject, the defendant would be allowed to purge himself
with oath-helpers in the ancient way, but when the king is plaintiff he must submit to trial by jury.
In the competition of courts, therefore, the king's court has a marked advantage; to say nothing of its
power to enforce its judgments it has, for those who can purchase or otherwise obtain such a favour, a
comparatively rational procedure. As yet, indeed, trial by jury is far from being what it became in later
times; the jurors are not "judges of fact", they are witnesses; but they are not like the witnesses and the
compurgators of the old procedure; they are not brought in by the party to swear up to a set form of
words in support of his case, they are summoned as impartial persons by a royal officer, and they swear
to tell the truth, whatever the truth may be. This is the procedure, far more rational than battle, or
ordeal, or wager of law, which the king's court has at its command when it begins to bid against the
communal and feudal courts. If for a moment we may refer to Roman law, we may say that the history
of English law does not begin with the formulary system---that is the product of the twelfth and
thirteenth centuries---at the back of the formulary system are legis actiones.
Lecture III.
This morning I shall attempt a sketch in brief outline of the order in which the different forms of action
are developed. But first I ought to say that I do not know that any such attempt has yet been made, and
that, as I must be very brief, I shall be compelled perhaps to state in too dogmatic a fashion some
conclusions that are disputable. To this I must add that some things that I say this morning may seem
unintelligible. I hope to make my meaning clearer in subsequent lectures. We must break up our

history into periods.
I. 1066-1154.
The first of these periods would end with the great reforms of Henry II. Litigation of an ordinary kind
still takes place chiefly in the communal and feudal courts; even the king's court may be considered as
a feudal court, a court of and for the king's tenants-in-chief, though a professional element is apparent
in it since the king keeps around him a group of trained administrators. His court is concerned chiefly
with (1) the pleas of the Crown, i.e. cases in which royal rights are concerned, (2) litigation between the
king's tenants-in-chief; for such tenants it is the proper feudal court, (3) complaints of default of justice
in lower courts. From time to time he interferes with ordinary litigation; at the instance of a litigant he
issues a writ commanding a feudal lord or a sheriff to do justice, or he sends out some of his officers to
hear the case in the local courts, or again he evokes the case before his own court. Such interferences
cannot be secured for nothing; they may be considered as luxuries, and men may be expected to pay for
them; the litigant does not exactly buy the king's justice, but he buys the king's aid, and the king has
valuable commodities for sale; the justice that he does is more peremptory than the justice that can be
had elsewhere, and the process of empanelling a body of neighbour-witnesses, the process which in
course of time will become trial by jury, is a royal monopoly. The writs of this period, so far as we can
judge from the specimens that have been preserved, were penned to meet the particular circumstances
of the particular cases without any studious respect for precedent. We do indeed come upon writs
which seem as it were to foretell the fixed formulas of a later age; we are sometimes inclined to say
"This is a writ of right, that a writ of debt, that a writ of trespass"; but we have little reason to suppose
that the work of issuing writs had as yet become a matter of routine entrusted to subordinate officers
whose duty was to copy from models. Perhaps no writ went out without the approval of the king
himself or the express direction of his justiciar or chancellor; and probably every writ was a
purchasable favour.
II. 1154-89.
The legislative activity of Henry II's reign marks a second period. Under Henry II the exceptional
becomes normal. He places royal justice at the disposal of anyone who can bring his case
within a certain formula. From the end of his reign we have Glanvill's book, and we see already a
considerable apparatus of writs which are at the disposal of litigants or of such litigants as will pay for
them; they have assumed distinct forms, forms which they will preserve until the nineteenth century,
and probably the issue of them is fast becoming a matter of routine; each writ is the beginning of a
particular form of action. Let us look at some of these writs.
First the Writ of Right. There is good reason to believe that Henry, in some ordinance lost to us, laid
down the broad principle that no man need answer for his freehold without royal writ. Everyone
therefore who demands freehold land must obtain a writ; otherwise his adversary will not be bound to

answer him. This principle of vast importance is laid down clearly enough in the book ascribed to
Glanvill. On the other hand it seems to be a new principle; we have little cause to believe that it was in
force before Henry's day or that it ever was law in Normandy; more than once we find it connected with
another rule which we also ascribe to Henry, a rule of which much must be said hereafter, namely, that
no one is to be disseised of his freehold unjustly and without judgment, that every one so disseised has
an action (called an Assize of Novel Disseisin) before the king's own justices. In 1207 King John sent a
writ to the people of Ireland in which he coupled these two rules: "We will that none shall disseise you
of your free tenements unjustly and without a judgment, and that you shall not be impleaded for your
free tenements without our writ or that of our justiciar" [Rot. Pat. 76; Select Pleas in Manorial Courts,
I, liv]. We find Bracton again coupling these two principles: no one shall be disseised of his free
tenement without a judgment, nor need he answer for it without the king's command and writ [Bract.
fo. 161: "Nemo debet sine judicio disseisiri de libero tenemento suo, nec respondere sine praecepto
domini Regis nec sine brevi."]. Of these two principles the one is that of the great possessory action, the
Assize of Novel Disseisin, the other is of wider import, no action for freehold can be begun without the
king's writ, or if it be so begun the person who is in possession need not answer. But let us observe that
there is a close connection between the two: both can be represented as measures for the protection of
possesion, of seisin of free tenement; such possession is to be protected against extrajudicial force; but
this is not enough, it is to be protected also against irresponsible justice; he who is seised shall remain
seised until some judgment is given against him in accordance with the king's writ. Henry did not
ordain, could not have ordained, that all litigation respecting free tenements should take place in the
king's court; such a measure would have been too open an abrogation of the first principle of
feudalism. It seems very possible that he was able to represent the great step that he took as no
interference with proprietary rights but a mere protection of possession, while the protection of
possession was intimately associated with the maintenance of the king's peace which was now
conceived as surrounding all men.
At any rate this principle took firm root in English law: no one need answer for his freehold without the
king's writ. This does not mean that every action for freehold must be begun in the king's court; far
from it. Suppose that A claims land that B holds, and that it is common ground between them that the
land ought to be held of C; then undoubtedly C's court is the proper tribunal. But B need not answer
unless A obtains a writ. The writ which A will obtain if he is asserting title to the land will be a writ
addressed by the king to C in this form: "I command you that without delay you hold full right to A (i.e.
do full justice to A) concerning a virgate of land in Middleton which he claims to hold of you by such
and such a free service, and unless you do it my sheriff of Northamptonshire shall do it, that I may hear
no further complaint about this matter for default of justice." Such a writ is called a writ of right (breve
de recto tenendo), and because it is an open writ and not sealed up, as some writs are, it is a writ of
right patent (breve de recto patens) [The Writ of Right Patent and the Praecipe quod reddat are
printed among the Select Writs after these lectures]. If, however, the demandant claims to hold the
land of the king as tenant in chief such a writ is out of place; there is no mesne lord to whom it can be

directed; the proper tribunal is the king's own court. So the writ takes a different form. It is directed to
the sheriff: "Command B that justly and without delay he render to A a hide of land in Middleton,
whereof A complains that B unjustly deforces him, and if he will not do it, summon him that he be
before my justices at such a place and time to answer why he has not done it"; the tenant of the land
must give it up to the demandant or answer in the king's court. In saying that this simple writ, this
Praecipe quod reddat, was only used when the demandant claimed to hold of the king as tenant in
chief, we have been guilty of some inaccuracy. Glanvill tells us that such a writ is issued when the king
pleases; Henry II was not very careful of the interests of mesne lords and would send a Praecipe quod
reddat to the sheriff when a Writ of Right addressed to the lord would have been more in harmony
with feudal principles. But this was regarded as a tyrannical abuse and was struck at by a clause of the
Great Charter [Magna Carta (1215), c. 34: Breve quod vocatur Praecipe non fiat alicui de aliquo
tenemento unde liber homo amittere possit curiam suam]---the writ called Praecipe shall not be
issued for the future so as to deprive any free man of his court; a proprietary action for land must be
begun in the lord's court; the Praecipe quod reddat is only in place when the demandant claims to hold
in chief of the king, in other words when it is a Praecipe in capite. We have therefore to distinguish
between two forms of the proprietary action for land, that begun in the lord's court by Writ of Right,
that begun in the king's court by Praecipe in capite; but in course of time the term "Writ of Right" gains
a somewhat extended sense and is used so as to include the Praecipe in capite. This is due to the
contrast between possession and property, or, to use the terms then current, between "seisin" and
"right". The Praecipe in capite is the beginning of a proprietary action, one in which the demandant
relies on right, not merely on seisin, and so it may be called a writ of right.
Now the action commenced by Writ of Right was an extremely slow and solemn affair---so at least it
was considered in after ages when it could be compared with more rapid actions. It involved a great
number of delays (dilaciones), of adjournments from term to term. Among the causes which in course
of time have rendered justice more rapid we must reckon not merely good roads, organised postal
service, railways, electric telegraphs, but also the principle that men can hand over their litigation and
their other business to be done for them by agents, whose acts will be their acts. Rapid justice may
nowadays be fair justice, because if a litigant cannot be present in court in his own person, he may well
be there by his attorney and his counsel. But this principle that every suitor may appear in court by
attorney is one that has grown up by slow degrees, and, like so many other principles which may seem
to us principles of "natural justice", it first appears as a royal prerogatlve; the king can empower a man
to appoint an attorney [Fitz. Nat. Brev. 25: Bl. Comm. III, 25. Blackstone adds "This is still the law in
criminal cases, and an idiot cannot to this day appear by attorney, but in person, for he hath not
discretion to enable him to appoint a proper substitute: and upon his being brought before the court in
so defenceless a condition, the judges are bound to take care of his interests, and they shall admit the
best plea in his behalf that anyone present can suggest."]. But so long as litigants have to appear in
person justice must often be slow if it is to be just; the sick man cannot come, so one must wait until he
is well; one must give the crusader a chance of returning. But one cannot wait for ever; that would be

unfair to the other party; so a great deal of law is evolved as to the excuses for non-appearance, in
technical language the essoins, that a man may proffer. This is one of the causes which raise high the
barriers between the various forms of action. In the action begun by Writ of Right, which will finally
deprive one of the parties of all claim to the land, the essoins are manifold; a litigant can generally
delay the action for a year and a day by betaking himself to his bed [Some care was taken to see that his
excuse was not too unreal. Four knights were sent to visit him, to award whether he had malum
transiens or a languor---which was what he needed---after consideration of whether they found him
vagantem per rura or "in bed as befits a man making such excuse, unbooted, unbreeched and ungirt,
or even naked which is more" (decalceatum, et sine braccis et decinctum, vel forte nudum, quod plus
est). Bracton, fo. 356b.]; in other actions so many essoins are not admissible.
It is worthy of notice that the Praecipe for land, the Writ of Debt, and many other writs afterwards
invented, are not in the first instance writs instituting litigation; that, according to their tenor, is not
their primary object. The king through his sheriff commands a man to do something, bids him give up
the land that he wrongfully withholds, or pay the debt that he owes. Only in case of neglecting to obey
this command is there to be any litigation. May we not say then that the "cause of action" in the king's
court is in theory not the mere wrong done to the plaintiff or demandant by keeping him out of his land
or neglecting to pay money due to him, but this wrong coupled with disobedience to the king's
command? There can I think be little doubt that such a conception was operative in the growth of royal
jurisdiction. If we look back at the Leges Henrici we find that among the rights which the king has over
all men, among the pleas of the crown, stands the placitum brevium vel praeceptorum ejus
contemptorum, any action we may say founded on a contempt of his writs or commands [Leg. Hen.
Prim. c. 10]. The wrong done to the plaintiff or demandant is a breach of law and a wrong which should
be redressed somewhere; but it is the contempt of the king's writ which makes it a wrong which should
be redressed in the king's court; in the language of the old English laws there has been an
"overseeness" or "overhearness" of the king which must be emended; the deforciant of land or of a debt
has not merely to give up the land or pay the debt, he is at the mercy of our lord the king and is
amerced accordingly.
The mode of trial appropriate to the Writ of Right has been trial by battle. We may reckon as the
second of Henry's reforms in civil procedure that he gave to the tenant the option of another mode of
trial; instead of the judicial combat he might put himself upon the grand assize of our lord the king.
The text of this ordinance, this grand assize (magna assisa) we have not got. Glanvill's account of it is
well known---"The grand assize is a royal boon conceded to the people by the clemency of the prince on
the advice of his nobles whereby wholesome provision is made for the lives of men and the integrity of
the state, so that in defending the right which every one possesses in his free tenement they may refuse
the doubtful issue of battle . . . This institution proceeds frorn the highest equity; for the right which
after many and long delays can hardly be said to be proved by battle is more rapidly and more fitly
demonstrated by this beneficent ordinance" [Glanv. II, 7; Stubbs, Const. Hist. I, 615]. If the tenant

(that is, the party attacked by the Writ of Right) claims the benefit of this ordinance, puts himself on
the grand assize of our lord the king, the action is removed out of the lord's court and is brought before
the king's justices; four knights of the neighbourhood are summoned to choose twelve other knights
who are sworn to say, to "recognise" (recognoscere), whether the demandant or the tenant has the
greater right to the land. The name "grand assize" is transferred from the ordinance to the institution
that it creates; these twelve recognitors are "a grand assize". It is best not to call them a "jury", for
though we see here one stage, and a very important stage, in the growth of trial by jury, still in many
respects trial by the grand assize to the last day of its existence---and such a trial was possible in 1834
[3 and 4 Will. IV, c. 27, sec. 36.]---remained a distinct thing from trial by jury. We observe for instance
that the recognitors were sworn to tell the truth not about mere facts---the separation of questions of
fact from questions of law belongs to a later day---but to tell the truth about rights, to say whether A or
B has the greater right (jus majus). We may notice also that here again the king is interfering in favour
of possession; it is not either party that can claim this royal boon, it is only the tenant, the man in
possession; no such grace is shown to demandants, they can be compelled to stake their claims on the
issue of a combat.
Now the possessory assizes: In sharp contrast to the action begun by Writ of Right there now stand
three possessory actions, the three Assizes of Novel Disseisin, Mort d'Ancestor, and Darrein
Presentment. There can, I suppose, be but little doubt that the notion of a definitely possessory action
may be traced to the Roman interdicts, through that actio spolii which the canonists were gradually
developing. But the English and Norman assizes---for we find these actions in Normandy as well as
in England, and there is some reason for thinking that they are a little older in Normandy than in
England---have many features which are distinctly not Roman and not Canonical. Roman law and
Canon law may have afforded suggestions but hardly models. We will look at these three assizes.
(a) The principle of the Novel Disseisin is this, that if one person has unjustly and without a judgment
disseised another of his free tenement, and the latter, the disseisee, at once complains of this to the
king he shall be put back into seisin by the judgment of the king's court. The procedure is this, the
plaintiff lodges his complaint, at once a writ is issued bidding the sheriff summon twelve good and
lawful men of the neighbourhood to "recognise" (recognoscere) before the king's justices whether B
unjustly and without a judgment disseised A of his free tenement within the time limited for the
bringing of an assize. If this body of recognitors, this assize---for the procedure is called an assize and
the twelve neighbours are called an assize---answers "yes" to the question thus formulated in the writ,
then the plaintiff, the disseisee, will be put back into seisin.
The formula of the Novel Disseisin contains terms which in course of time will give birth to a great deal
of law; the successful plaintiff must have been disseised of his free tenement unjustly; but what is
seisin, what is a free tenement, when is a man disseised unjustly? Postponing any discussion of these
terms we can still notice that the action has a narrow definite scope. It can be brought only by a

disseisee against a disseisor. It cannot, for example, be brought by the heir of the disseisee, or against
the heir of the disseisor. Again, disseisin implies more than a wrongful assumption of possession, it
implies a turning of some one out of possession; to enter on land of which no one is seised is no
disseisin; if, for example, on the death of a rightful tenant a stranger enters before the heir enters, that
stranger is no disseisor. This Assize of Novel Disseisin is no remedy for the recovery of land to which
one is entitled; to speak roughly it is an action competent to a person who has been turned out of
possession, and competent against the person who turned him out. It decides nothing as to proprietary
right. In a Writ of Right the demandant claims the land as his right and inheritance (ut jus et
hereditatem suam); he has to allege that he or some ancestor of his was seised as of right (ut de jure);
no such allegation is made by the plaintiff in the Novel Disseisin; it is enough that he has been seised
and disseised, and of right there is no talk. Consequently this action, if the plaintiff be successful, in no
way decides that the plaintiff has better right than the disseisor; the plaintiffis put back into seisin, but
after all the disseisor may be the true owner; he may at once bring a Writ of Right against his hitherto
successful adversary; the court will help him to his own though it has punished him for helping himself.
Then again this action must be brought within a limited term; the complaint must be one of recent
dispossession (de nova disseisina). In England this term was fixed from time to time by royal
ordinance. When Glanvill wrote the action had to be brought since the king's last passage to
Normandy, an event which must have been quite recent. In Normandy we find a rule which has a
curiously archaic sound; the plaintiff must have been seised when the last harvest was reaped. The
principle of the Novel Disseisin if it has one root in the Interdicts seems to have another in the ancient
notion, very prominent in Norman law, that the man engaged in agricultural operations enjoys a
special peace.
Then again the Novel Disseisin was a very summary action, ut per summariam cognitionem absque
magna juris solemnitate quasi per compendium negotium terminetur [Bract. fo. 164b] says Bracton.
In course of time these assizes became very bywords for dilatoriness; but I see no reason to doubt that
in the twelfth century their procedure was quite as rapid as was compatible with the elementary rules
of justice [See: Glanv. XIII, 38]. No essoin was permitted; no pleading was necessary; the question for
the recognitors was formulated in the writ which summoned them; there could be no voucher to
warranty of any one not named in the writ; the first process against the defendant was not a mere
summons but an attachment; it was even enough to attach his bailiff. When Bracton tells us that the
invention of this action had cost pains, that it was multis vigiliis excogitata et inventa [Bract. fo. 164b],
we can believe him; a splendid success awaited it.
(b) The principle of the Assize of Mort d'Ancestor (assisa de morte antecessoris) is this, that when a
person has died seised as of fee---ut de feodo---his heir ought to be seised, and that if any other person
obtains seisin before the heir, that person shall be turned out by the judgment of the court in favour of
the heir. The procedure is somewhat like that of the Novel Disseisin, though not so summary. The
questions for the recognitors are formulated in the original writ and are these, "Whether M, the father,

mother, brother, sister, uncle or aunt of A, the plaintiff, was seised in his demesne as a fee of the land
in question now held by X, whether M died within the time limited for bringing the action, and whether
A is M's next heir." If all these questions are answered in the plaintiff's favour then he is put in seisin.
The action is regarded as distinctly possessory in this sense that it decides nothing about proprietary
right. It is necessary that the plaintiff's ancestor should have been seised, that he should have been
seised "as of fee", that is to say, that he should not have been seised as a mere tenant for life or the like,
that he should have been seised "in demesne", that is that he should, in our modern terms, have been
seised of the land itself and not merely of a seignory over lands held of him by another; but it is by no
means necessary that he should have been seised as of right; of right there is no talk at all. It follows A
may recover from X in a Mort d'Ancestor, while X having better right than A will recover from him in a
proprietary action, in a Writ of Right.
Seisin, we may observe, is not conceived as a descendible right. The heir of one who died seised is not
at once in seisin; he must enter on the land before he will be seised. If during the interval a stranger
enters, that stranger will be no disseisor. Had seisin been considered as a descendible right there would
have been no place for the Mort d'Ancestor, for its sphere would have been covered by the Novel
Disseisin. On the other hand seisin (unless the person seised claims but a temporary estate as tenant
for life or the like) does found or generate a descendible right---a person who dies seised ought to be
succeeded by his heir and by no other, and if any other person obtains seisin, he shall be put out of it; if
he thinks that he has better right than the heir because better right than the ancestor, let him bring his
action; help himself he shall not. In course of time (but this as I think belongs to a later period) it is
even said that on the death of one who dies seised as of fee, his heir is at once "seised in law" though he
is not "seised in deed" until he enters; this means that during the interval he has some, though by no
means all, of the advantages of seisin. The older notion seems to be that though seisin is not
descendible it does beget a descendible right, and at any rate the Mort d'Ancestor gives us this
important principle that the heir of one who dies seised ought to be put in seisin and remain seised
until some one else proves a better right in due course of law.
But we have mis-stated the rule implied in this assize in a point worth mentioning. In order that the
plaintiff may be successful, it is essential not merely that he should be the heir of the dead person, but
that he should be the son, daughter, brother, sister, nephew, niece of that person. The Mort d'Ancestor
lies only on the death of a father, mother, brother, sister, uncle or aunt. The dead man's heir happens to
be his grandson; that grandson cannot bring an assize. Why so? We must, as I think, answer that the
limitation is quite unprincipled; that legislators deal with obvious cases and leave rarer cases
unprovided for, either because they are forgotten or because they are troublesome. The remark is
worth making for there are many things in the history of our law, and, I should suppose, in the history
of every body of law, which can only be explained by that vis inertiae which makes against legal
reforms. And let us observe what happens. The formula of the Mort d'Ancestor is never enlarged; but
new actions are invented to meet the omitted cases. This happened it would seem under Henry III in or

about 1237. The actions known as actions of Aiel, Besaiel and Cosinage; if the dead man was the
grandfather (aiel), or great-grandfather (besaiel), or cousin of the heir, that heir was to have an action
which would do for him what the Mort d'Ancestor would have done had the degree of kinship between
them been closer. But there was difficulty about giving these actions; the feudal lords resisted the
endeavour on the ground that business which properly belonged to their courts was thus attracted to
the king's court. Bracton has to argue that the new actions are purely possessory, that they are mere
necessary supplements of the Assize of Mort d'Ancestor and that they do no wrong to the lords
[Bracton's Note Book, pl. 1215; Bract. fo. 281]. The story is instructive; it illustrates what I may call the
irrational element in the history of the forms of action, the element of chance in legal history. The
result is that a mere accident of no juristic value, the mere accident that the degree of kinship between
heir and ancestor is near or remote, decides whether the heir shall have a twelfth century remedy by
Assize of Mort d'Ancestor or a thirteenth century remedy by a Writ of Cosinage; the procedure in tnese
two actions is substantially different, the one is more archaic than the other and yet the same principle
of law covers them both.
(c) The third of the possessory Assizes is that of Darrein Presentment or last presentation (de ultima
presentatione). It deals with a matter which was of great value in the middle ages and which gave rise
to an enormous amount of litigation, the advowsons of churches. If a man claimed property in an
advowson his remedy was by a Writ of Right closely resembling the Praecipe in capite for lands. The
king had asserted successfully both as against the feudal lords and as against the ecclesiastical
tribunals that all litigation about the right to present to churches must take place in his court. The Writ
of Right of Advowson was the proprietary remedy; but here also a possessory action was needed and
was instituted. The procedure closely resembled that of the two other possessory assizes though it was
not quite so summary as that of the Novel Disseisin. Its principle was this: if a church is vacant the
person who last presented or his heir is entitled to present; if any other person conceives that he has
better right, he must bring his action and recover the advowson, but until he has done this it is for the
person who last presented, or his heir, to present again. The question addressed to the recognitors is
this---Who was the patron who in time of peace presented the last parson to this church? The act of
successfully presenting a parson to a church was regarded as a seisin, a possession of the advowson;
the man who has performed that act is seised of the advowson and when the church again falls vacant,
it is for him or, if he be dead, his heir to present another parson, provided that in the meantime he has
not been deprived of his seisin by judgment. The need of some rapid procedure to meet cases in which
two persons claimed the right to present to the same church was great; while an action by Writ of Right
of Advowson was dragging on its wearisome length, the parishioners would be left as sheep without a
shepherd or the bishop would step in and deprive both litigants of the coveted piece of patronage;
therefore let him who has presented once present again until some one has proved a better right in due
course of law.
(d) A fourth Assize must here be mentioned, the Assize Utrum or Writ Juris Utrum. It reminds us that

in the twelfth century royal justice had to contend not only with feudal justice, but also with
ecclesiastical justice. If land has been dedicated to ecclesiastical purposes, has been given in free alms,
in frankalmoign (libera elemosyna) the church claims cognisance of all disputes relating to that land.
The question is what to do when one party to the litigation asserts that the land is held in free alms,
and so within the sphere of the ecclesiastical tribunals, while the other asserts that it is lay fee. This
difficulty gave occasion for one of the very earliest applications of what in a loose sense we may call
trial by jury. One of the Constitutions of Clarendon (1164) [Cap. 9] is to this effect: "If a dispute arises
between a clerk and a layman, or a layman and a clerk about any tenement which the clerk asserts to
belong to free alms, the layman to lay fee, it shall be decided on a recognition of twelve lawful men by
the judgment of the king's chief justiciar, whether (utrum) the tenement belongs to free alms or to lay
fee. And if it be >recognised' to belong to free alms, the plea shall proceed in the ecclesiastical court,
but if it be lay fee then the plea shall proceed in the king's court, unless both parties claim to hold of the
same bishop or baron, in which case it shall proceed in the (feudal) court of that bishop or baron. And
the person who is in seisin shall not lose his seisin on account of that >recognition' until the plea be
tried out." We see here a preliminary procedure; it is to settle nothing about right, nothing even about
seisin, it is merely to settle the competence of tribunals, to decide whether the action shall proceed
before a spiritual or a temporal tribunal. But it had a very peculiar history. Subsequent changes in the
relation between church and state, changes which in this instance extended the sphere of the lay courts
at the expense of that of the Courts Christian, gave this assize a new turn. Still keeping its old form of
an assize it became a proprietary remedy in the king's court for a parson who wished to recover the
lands of his church; it became "the parson's writ of right". We have constantly to remember this, that
an action instituted for one purpose in one age comes to be used for another purpose in another age
[Très Ancien Coutumier, c. 57; Const. Clarend. c. 9; Glanv. XIII, 23; Bract. fo. 285b; Fitz. Nat. Brev.
49; Bl. Comm. III, 252; Brunner, Schwurgerichte, p. 324].
These were all the actions which in England permanently took the name and form of assizes. By saying
that they took the form of assizes I mean that the original writ directed the summoning of a body of
recognitors to give sworn answer to a particular question formulated in that writ. In Normandy there
were some other assizes, and these may for a short while have been used in England; but the germ of
trial by jury having once been introduced in these formal assizes, it began to spread outside their limits,
to take a new shape and become susceptible of free development. We learn from Glanvill that certain
incidental questions may be raised in an action which will be decided by the oath of twelve men. For
example, A brings an Assize of Mort d'Ancestor against B, who is an infant; now it is a rule of law that
an infant during his infancy need never answer for land of which his ancestor died seised as of fee; if
the infant has come to the land as heir of one who died seised as of fee, then the action against him
must stand over until he is of full age. Now in this case the infant asserts that his ancestor died seised
as of fee, and that therefore he need not answer; the demandant asserts that the infant's ancestor was
not seised in fee, he was seised merely as guardian in chivalry. To settle this question a body of twelve
men can be summoned. The question that they are to be asked is not the question formulated by the

original writ, which concerns the alleged seisin of A's ancestor; it is quite another question relating to
the alleged seisin of B's ancestor, and Glanvill is inclined to regard it as a "prejudicial" question, that is
to say an affirmative answer will not prove that A is entitled to recover, it will merely prove that B,
albeit an infant, must answer A [Glanv. XIII, 14, 15]. So again, to put another case, C may bring against
D an action for land, claiming that he, C, mortgaged, or rather we must say "gaged", the land to D for a
sum of money which C now offers to pay; D, however, alleges that the land is his own, that he is seised
in fee and not in gage; to decide this issue a body of recognitors is usually summoned, and if it declares
that D holds in gage then D loses the land and loses the debt also, for he has chosen a particular mode
of defence to the action, and has failed in it [Glanv. XIII, 26-31]. Glanvill seems half inclined to treat
the questions that can thus be raised by pleading and answered by jury, as numerable and nameable;
there is the recognition utrum quis sit infra aetatem an non, the recognition utrum de feodo vel de
warda, the recognition utrum de feodo vel de vadio; he even casually speaks of the body of recognitors
thus called in to answer a question raised by pleading as an assisa [Glanv. XIII, 1, 2, 13, 31]. Our law
we see might conceivably have taken this shape, that only certain particular issues, of which a list might
be made are to be decided by the new mode of trial, that in all other cases proof must be given in the
old ways, by formal testimony, by compurgation, ordeal, battle. But really the questions which litigants
can raise, which might well be decided by the oath of their neighbours, are innumerable. It becomes
more and more a recognised principle that a defendant need not confine himself to a bare denial of the
charge brought against him, that he may allege facts that disprove this charge, that if these facts be
denied, the best way of deciding the dispute is to call in a set of twelve neighbours who will be likely to
know and sworn to tell the truth. Such a body called in, not by the original writ, but in the course of the
action, to determine a question of fact raised by the pleadings, gets the name of a jury (jurata) as
contrasted with an assize (assisa); the assisa is summoned by the "original" writ issued out of the
chancery before there has been any pleading; the jurata is summoned by a "judicial" writ issuing out of
the court before which the action is proceeding, and it comes to answer a question raised by the
pleadings. Any considerable development of this principle, however, lies in the future; in Glanvill's
book we see no more than this, that the practice of referring a disputed question to a body of
"recognitors" is beginning to extend itself outside the limits of the assizes.
We have now enumerated those actions begun by royal writ which were common in Glanvill's day.
When from some seven years later (1194) we get the oldest roll of the king's court that has been
preserved, we see that by far the greatest part---quite nine-tenths---of the litigation there recorded falls
under the heads that we have already mentioned; Writs of Right, Assizes of Novel Disseisin, Mort
d'Ancestor, and Darrein Presentment, these are common; other civil actions are rare. Still Glanvill
knew some other civil actions. By attending to these for a while we may be able the better to
understand the manner in which the king's justice grows, and the obstacles that impede its growth.
Claims for dower are not uncommon. According to the general principle which is now part of the law,
the widow who wishes to bring an action for her dower must obtain a writ from the chancery; but

according to the feudal principle the action should be begun in the court of him of whom the widow will
hold her dower, that is to say, the court of her husband's heir, in the common case the court of her own
son. We therefore find a Writ of Right of Dower, whereby the king commands the heir to hold full right
to the widow concerning the hide of land which she claims to hold of him as her reasonable dower
[Glanv. VI, 5]. If the heir's court makes default then the action may be removed, like any other Writ of
Right, to the county court, and thence it may be removed to the king's court. The appropriate mode of
trial, if the widow's right be contested, is battle. But then we find this rule, which goes far to interfere
with the feudal principle: If the woman has already got some part of her dower, then, as already said,
her action must be begun in the feudal court, the heir's court; but if she has as yet got no part of her
dower, then she must begin her action in the king's court. In order to do this she can obtain a Writ of
Dower, unde nihil habet, which bids the sheriff to command the holder of the land to deliver to the
widow her reasonable dower, "whereof she complains that she has nothing" (unde nihil habet ut dicit),
and in default of his so doing the sheriff is to summon him to the king's court, that he may state why he
hath not done it [Glanv. VI, 15]. Glanvill gives no explanation of this curious rule; but Bracton does,
and the explanation is quite as curious as the rule. As the widow has not as yet got any part of her
dower it is still possible that the holder of the land may deny the fact of the marriage. Now the fact of
the marriage can only be proved by the bishop's certificate, marriage being a matter for the law
ecclesiastic, and the only person who can compel the bishop to certify whether the woman was married
or no is the king; to the mandate of the mere lord of a feudal court he would pay no heed. It follows that
if there is any chance of a denial of the marriage the widow must go to the king's court [Bract. fo. 106,
296b]. Such is the pretext for the Writ of Dower unde nihil habet. Blackstone, looking at the matter
from a modern point of view, turns the story topsy-turvy (Comm. III, 182, 183). It is an ingenious if
rather flimsy excuse for allowing widows to sue in the king's court: Blackstone could hardly conceive
that any such excuse could ever have been necessary. We have thus two forms of action concerning
dower, and there is yet a third, namely the writ of Admeasurement of Dower, which lies when the
widow has got more than she ought to have; this directs the sheriff to admeasure the land and allot to
each party what is right [Glanv. VI, 18; Bract. fo. 314].
We turn to a matter of importance in social and economic history. There is a writ for the recovery of a
serf, a "nativus". This writ, de nativo habendo, is directed to the sheriff, and bids him deliver to the
claimant his fugitive bondman X, unless he has taken refuge on the royal demesne [Glanv. XII, 11]. If,
however, the person thus claimed asserts that he is free, and gives the sheriff security for the proof of
his assertion, then the sheriff's power ceases, and the would-be free man obtains a writ de libertate
probanda, which bids the sheriff put the case before the king's justices and summon the would-be lord
to set forth his claim [Glanv., V, 2]. Why cannot this matter be tried in the county court? Glanvill gives
no reason; Bracton says "I can assign no reason unless it be in favour of liberty, which is a thing
inestimable and not lightly to be trusted to the judgment of those who have but little skill" [Bract. fo.
105b]. Whether then we prefer to suppose that we have here some relic of ancient times, of the time
before feudalism, or to believe that Henry, who interfered in favour of the seisin of freehold, interfered

also in favour of personal freedom, we have here a notable fact, the man who is claimed as a serf may
go to the king's court and prove his liberty there.
As regards those claims which in after days give rise to the personal actions, those actions which, as we
say, are founded on contract or founded on tort, Glanvill has but little to tell us; they are seldom
prosecuted in the king's court. But the action of Debt is known there. As against the ecclesiastical
courts the king has successfully asserted that actions for debt or for the detection of chattels, if they in
no way concern marriage or testament and are brought against laymen, belong to the temporal not to
the spiritual tribunals, and an action of Debt is occasionally brought in the king's own court [Glanv., X,
1. Observe the words si placitum illud ad curiam Regis trahere possit"]. The writ of Debt given by
Glanvill [Glanv. X, 3] is of great interest for it seems to imply a very archaic conception. It is almost an
exact copy of the Praecipe in capite, a certain sum of money being substituted for a certain piece of
land. "The king greets the sheriff. Command X that justly and without delay he render to A one
hundred marks which he owes him, so he says, and of which he (A) complains that he (X) deforces him;
and if he will not do so summon him by good summoners to be before me or my justices on such a day
to show why he has not done it." The non-payment of a debt seems regarded as a "deforcement", an
unjust and forcible detention of money that belongs to the creditor. We are tempted to say that Debt is
a "real" action, that the vast gulf which to our minds divides the "Give me what I own" and "Give me
what I am owed" has not yet become apparent [That there is a close connexion between the verbs owe
and own is certain. Dr. Skeat gives: "Owe, to possess; hence to possess another's property, to be in
debt, be obliged."]. In this action of debt the old modes of proof still prevail; there may even be trial by
battle as there may be in a Writ of Right and there is no mention of any jury, of anything comparable to
the grand assize [Glanv. X, 5].
In connexion with debts Glanvill speaks of mortgages of lands and of goods, or rather we must say of
gages, for the term mortgage has at this time a very special sense. These gages occasionally give rise to
actions in the royal court. Thcre is already a writ for the gage creditor calling on the debtor to pay;
there is another for the debtor calling on the gage creditor to receive his debt and give up the gaged
land [Glanv., X, 7, 9]. This latter writ is of interest, because it is the ancestor of a large family of writs.
The commonest mode then in use of making land a security for the payment of money was to demise it
to the creditor for a fixed term of years. The writ now in question is brought by the debtor who has
made such a demise for a term that has expired, and who is now desirous of paying the debt and
getting back the land: "The king to the sheriff greeting. Command X that justly and without delay he
render to A all the land in such a vill which he gaged to him for a sum of 100 marks for a term now
past, as he says (quam ei invadiavit pro centum marcis ad terminum qui praeteriit ut dicit), and to
receive his money, and if he will not do this summon him before our justices to show why he hath not
done it." Here we see is a Praecipe for land, but not a simple Praecipe; it is a Praecipe with a special
reason assigned; A is not simply claiming the land as his own, he is claiming it as having been demised
to X for a term that has expired; the writ assigns a reason why X should no longer hold the land; he has

come to it by a title which no longer holds good. Now such writs for land, Praecipes with a reason
assigned why the tenant's title is invalid, are going to play a great part in future history. The change of a
few words would turn the writ now before us into one of the commonest of the "Writs of Entry", the
Writ of Entry ad terminum qui praeteriit. Here is the first germ of a great institution. We learn also
that in this action, if the tenant affirms that he holds the land in fee, either party can have a
"recognition" to decide the question utrum ut feodum suum vel vadium suum. This is an important
step; the action is not "an assize"; the original writ says nothing about recognition, nothing about the
mode of trial, but either party can, if he pleases, have twelve neighbours called in to answer the
question "fee or gage". If neither cares for this new-fangled procedure then the case is treated as
though it were one of Writ of Right, and there may be battle or grand assize to decide, not this narrow
question, but the wider question whether A or X hath the greater right to this land [Glanv. X, 9]. We
seem to catch the thought that when there has been some recent gage of the land easily provable by the
testimony of the neighbours, it is hard on A that X should be allowed to raise the whole question of
greater right, and force A to stake all on the issue of a battle. But still in this region of debt and gage,
battle reigns as a normal mode of proof. Suppose that the creditor has a charter, a deed as we should
say, if the debtor acknowledges the seal as his, well and good, he must pay even if he never put the seal
there, for he ought to have taken better care of his seal; but if he denies that the impression on the wax
is that of his seal, then there may be battle, though he may be debarred from this by a collation of the
disputed document with other charters which admittedly bear his seal [Glanv. X, 12]. In another case
relating to the loan of chattels Glanvill leaves us an unanswered query as to the mode of proof that is
applicable, and makes no suggestion that the question should go to a jury [Glanv. X, 13].
Lecture IV.
III. 1189-1272.
This, our third period, extending from the death of Henry II to the accession of Edward
I, is a period of rapid growth, as we learn from Bracton's treatise. New writs are freely
invented, though towards the end of Henry III's reign this gives rise to murmurs and the
barons seek to obtain a control over the king's writ-making power. There is now a large
store of original writs which are writs of course (brevia de cursu), that is to say, they
may be obtained from the subordinate officers of the royal chancery on payment of fees,
the amount of which is becoming fixed. A Register of these writs of course has been
formed and is kept in the chancery. The earliest Register known to me is one of 1227. In
the Cambridge University Library we have two other Registers of Henry III's reign;
Registers of Edward I's reign are common in MS. The size of the Register is rapidly
Litigation about land is still chiefly conducted by the proprietary action begun by writ of
right, and the two possessory actions of Novel Disseisin and Mort d'Ancestor. When the

tenement in question is held in chief of the Crown, instead of a writ of right there is a
Praecipe in capite---but the lords have succeeded in getting a provision inserted in
Magna Carta to the effect that such a writ as this, which at once summons the tenant
before the king's court, shall not be used if the tenement is held of a mesne lord who has
a court---in that case the action must be by writ of right (breve de recto tenendo)
commanding the lord to do justice. But this victory of feudalism is illusive. Between the
proprietary action and the possessory assizes there is growing up a large and popular
group of brevia de ingressu--- "Writs of Entry". The characteristic of a writ of entry is
that it orders the tenant to give up the land or answer the demandant's claim in the
king's court---thus far following the form of the Praecipe in capite, but goes on to add
that there is some specified and recent flaw in the tenant's title---he only had entry into
the land, e.g. by the feoffment of a husband who was alienating his wife's inheritance, or
by the feoffment of an infant, or by the feoffment of an abbot without consent of the
monks, or by the feoffment of one who had disseised the demandant. This flaw, this
recent flaw, in the tenant's title is suggested in order to take the case outside the rule
that litigation about proprietary rights in land should be begun in the lord's court. The
flaw must be recent. If the land has changed hands several times since the unlawful
entry then no writ of entry is applicable and there must be a writ of right. The various
writs of entry therefore are very numerous---there is one applicable to almost every
conceivable case in which a tenant has come to the land by some title in which a recent
flaw can be pointed out---we hear, for example, of a form of action as a writ of entry sur
disseisin in the per, a writ of entry sur disseisin in the per and cui [For the form of these
writs of entry see the Select Writs, below]. In 1267 the Statute of Marlborough, which in
many ways marks the end of feudalism, in effect abolished the restrictions on the
formation of writs of entry--but it only did this by adding to their number. If since the
unlawful entry the land had passed through several hands a writ of entry in the post
might be used---the demandant might allege that the tenant only had entry post (after) a
disseisin committed by someone without showing how the land had passed from the
disseisor to the tenant.
The words of the Statute (cap. 29) were as follows: Provisum est eciam, quod si
alienaciones illae, de quibus breve de ingressu dari consuevit, per tot gradus fiant,
quod breve illud in forma prius usitata haberi non possit, habeat conquerens breve de
recuperanda seisina, sine mentiona graduum, ad cujuscunque manus per hujusmodi
alienaciones res illa devenerit, per brevia originalia per consilium domini Regis
"It is provided also, That if those alienations (whereupon a writ of entry was wont to be
granted) hap to be made in so many degrees that by reason thereof the same writ cannot

be made in the form beforetime used, the plaintiffs shall have a writ to recover their
seisin, without making mention of the degrees, into whose hands soever the same thing
shall happen to come by such alienations, and that by an original writ to be provided
therefor by the council of our lord the King [This is the translation given in the Statutes
at Large].
We are accustomed to regard the English real actions as a hopeless tangle---this is the
result of the writs of entry. If we place ourselves at the death of Henry II the situation is
really very simple. Let us review the position. If a proprietary action is to be brought for
land it must be begun by Praecipe quod reddat (after Magna Carta, 1215, this is only
permissible where the demandant claims to hold in chief of Dominus Rex) or by Breve
de recto tenendo. In either case thc demandant will have to allege that the land is jus et
haereditatem suam---will have, i.e. to rely upon proprietary right. He will have a
proprietary, petitory, droiturel action, in the language of the Roman Law a vindicatio
rei. Besides this there are two possessory actions, each of narrow scope and analogous
to the possessory interdicts: (1) The Novel Disseisin, which is the English counterpart of
the Roman Interdict Unde Vi and is probably derived from that source immediately
through the actio spolii of the Canon Law.
It has a narrow limit; A complains that X has disseised him---that this very X has ousted
this very A from seisin. If that be so then, without any discussion of "right", A ought to be
put back into seisin--- salvo jure cujuslibet. (2) The Mort d'Ancestor: B has died seised
as of fee---not necessarily "as of right"---he had, or behaved as having, heritable rights, A
is his next heir, but, before A could enter, X entered. If this be so, X is to be turned out of
seisin and A placed in seisin of that land. As I understand there was a good Roman
analogy for this too, the haereditatis petitio possessoria, but it is doubtful whether this
was known to the lawyers of Henry II.
These possessory assizes are marked off from the proprietary action, first by a summary
royal procedure, in which essoins are reduced to a minimum, and secondly by their
short periods of limitation.
Then come the writs of entry invented in the tirne of Richard, John, and Henry III. A
writ of entry is, as we have seen, a writ of praecipe suggesting a recent flaw of a
particular kind in the tenant's title. Their object seems to have been to evade feudal
jurisdiction, probably on the theory that they are in a certain sense possessory and
therefore do not fall to the lords. The demandant relies on a recent seisin, hence these
writs are confined within "the degrees", that is to say they are competent only if the
tenant is first, second or third faulty possessor [Here Professor Maitland has in mind
the writs of entry sur disseisin or on intrusion; in other instances, "the degrees"

stretched only to the second faulty possessor, e.g. where the tenant C is alleged to have
entered per B cui A the husband (cui invita) or the idiot (dum con compos) or the
doweress or life tenant (ad communem legem etc.). In these cases A cannot be said to be
a faulty possessor, in that of the idiot or infant he may even be thc demandant himself--it would perhaps be more accurate in the text to say "if the tenant is first,
second or third from the creator of the flaw in the title".]. Even this limit is removed by
the Statute of Marlborough after which a writ of entry can be used if it can be said that
the tenant came to the land after some faulty or wrongful entry.
It is these writs which make the history of our forms of action so very complex and
unintelligible. Are they proprietary, are they possessory? The answer seems to be that in
their working they are proprietary, in their origin possessory or quasi-possessory, since
the justification for litigation in the king's court lies in the notion that the demandant
has recent seisin on his side.
The result of this, as to substantive law, is that we seem to get a tertium quid between
property and possession, between jus and seisina. To this I shall recur.
In what I have just said I have been compelled to contradict Blackstone. He treats the
writs of entry as older than the assizes. "In the times of our Saxon ancestors, the right of
possession seems only to have been recoverable by writ of entry [Comm. III, 184]. "Thus
Henry II probably in the twenty-second year of his reign gave the assizes of novel
disseisin and mort d'ancestor." In this last statement there is I think a small mistake.
Blackstone refers these two assizes to the Council held at Northampton in 1176. Now it is
very possible that the Mort d'Ancestor was created on that occasion, and that we have
the words which created it in an instruction to the itinerant justices, some words of
which Bracton cites in a note and the whole of which will be found in the Select Charters.
But the Novel Disseisin seems about ten years older---we have not got the text of the
ordinance which created it, but on the Pipe Roll for 12 Henry II we begin to have entries
of fines inflicted pro disseisina super assisam Regis. There can I think be little doubt
that the ordinance was made at the Council of Clarendon in 1166. But this mistake is
small compared with that of supposing that the writs of entry are older than the assizes,
and I need hardly say that it is nonsense to suppose that our Saxon ancestors knew
anything about writs of entry. As to their date, we must start with the fact that Glanvill
gives no writ of entry, though (X, 9) he has got just one writ which might easily be
converted into a writ of entry ad terminum qui praeteriit. The Registers of the early
years of Henry III give two such writs, the writ of entry ad terminum qui praeteriit and
the writ cui in vita, and on a Patent Roll of 1205, there is a writ of entry sur disseisin, a
writ for the disseisee against the heir of the disseisor, followed by a writ which directs

that this henceforward shall be a writ of course (Rot. Pat. i. 32); before the middle of the
century we find almost all the writs of entry in use, except those which were afterwards
given by statute. The truth is that the writs of entry presuppose the assizes. Suppose that
X has disseised A and that X is still in seisin, there is no writ of entry applicable to this
simple case, because it is a case for an Assize of Novel Disseisin. If X dies and his heir Y
enters then there is a writ of entry for A against Y, because there cannot be an assize, for
an Assize of Novel Disseisin can only be brought against a disseisor. It is true that very
late in the day we do find a writ of entry covering the ground of the Assize of Novel
Disseisin, "the writ of entry in the nature of an assize"; but I do not believe that this writ
appears until very late times, until Richard II's reign, when the procedure by way of
assize has become more clumsy than the procedure by writ of entry---more clumsy
because more antiquated. I have been compelled to insist on this point, because
Blackstone's theory turns the whole history of seisin upside down.
Meanwhile a number of other gaps are being filled up with new writs. For instance, the
Assize of Mort d'Ancestor, as we have seen, lies only when the claimant can assert that
the person who has just died in seisin, and whose heir he is, was his father, mother,
sister, brother, uncle, aunt. It had been sufficient to provide for the common cases; if the
dead person was the claimant's grandfather or cousin the assize could not be used. Thus
gap was filled up in 1237 by the action of Aiel, Besaiel and Cosinage, though the lords
resisted these new inventions. So again the group of writs relating to advowsons has
received additions, and there is another group relating to wardships and marriages.
Here again we see the line between proprietary and possessory actions; besides the
proprietary writ of right of ward there is the possessory action of ejectment of ward.
There are also writs for settling disputes between lord and tenant---writs relating to
easements, writs relating to rights of common. Very frequently there is one writ which is
deemed possessory and one which is deemed proprietary or droiturel---thus there is an
assize of nuisance and a writ quod permitrat prosternere for the abatement of nuisances
which cannot be brought within the terms of the assize. The group of actions relating to
land and to the so-called incorporeal hereditaments is a very large one---but the forms
which hereafter will deserve attention are the possessory assizes, the writs of entry, and
the writ of right. They form a sort of hierarchy of actions---the writs of entry seem to
bridge the gulf between possession and property, between seisin and right. This, as we
shall hereafter see, is a very remarkable feature of English Law.
An illustration of the important results of the invention of new writs may be found in the
remedies granted to termors. Slowly a practice has arisen of letting land for terms of
years. At first the termor's right is regarded as a merely contractual right---his only
remedy is an action of covenant against his lessor---indeed in the first half of the

thirteenth ccntury we seldom find the action of covenant used for any other purpose. If
ejected by his lessor, the termor can recover; the land by action of covenant; if disturbed
or ejected by anyone else his one remedy is to obtain by the same action damages from
the lessor who has contracted that he shall enjoy the land during the term. He is not
regarded as having any right in the land, or any seisin, i.e. possession, of the land, he has
only, as we should say, jus in personam. But about 1237, as it would seem, a new writ
was given him, the quare ejecit infra terminum which would enable him to recover the
land from any person who ejected him, at least if that person claimed under the lessor.
Bracton thought that it would enable him to recover against any ejector; but the form
which came into use supposed that the defendant was a purchaser from the lessor, and it
seems to have been held that it could not be brought against a mere stranger to the title.
We are even told who invented this writ; it was William Raleigh, the chief justice. There
is no legislation, no intention to give a new right, merely a new remedy; but as you see
the character of the old right is being changed, it is ceasing to be a merely contractual jus
in personam. In a few years we have Bracton discussing the problem whether the termor
is not seised of the land. Undoubtedly his lessor is seised, and if the termor be ejected by
a third person the lord can recover the land from that third person