Popular Science Monthly/Volume 44/April 1894/An Illustrative Chapter on Legal Development


THE evidences are abundant that primitive man had no conception of ownership as distinguished from or as subsisting independently of possession. He recognized, no doubt, that one in possession of an object had a right to defend and maintain his advantageous position. If, however, the possession were lost, whether by accident, violence, or theft, the result, in the primitive judgment, was the permanent extinguishment of all relation between the object possessed and its former possessor, unless there was an immediate reseizure; somewhat as now one's claim upon wild animals, birds, or bees in his possession is forever lost by their escape, unless saved by prompt pursuit and immediate recapture. Even after the establishment of courts and the reinstatement of dispossessed persons by their authority, the relief was afforded, not upon any theory of subsisting ownership in the person dispossessed, but by way of redress for the personal grievance which he was perceived to have suffered—as now, even in the acknowledged absence of proprietary rights, we justify a person in recovering an eligible position in a street or other public place from which he has been rudely crowded by another. The legal protection of property is, historically considered, a mere extension of the protection afforded by law to the person, every wrong having been originally thought of as in the nature of a personal injustice only. The conception of ownership, instead of being the cause or historical basis of remedies for the recovery of possession, is in fact the tardy outgrowth of impressions produced upon the mind by the habitual application of those remedies as a mode of relief against injuries long regarded as purely personal.

It might be supposed that if men were ever unacquainted with the idea of ownership apart from possession it must have been in such prehistoric ages as now scarcely to admit of verification. On the contrary, no circumstance in history, perhaps, has been more prolific of legal doctrine. No finer instance can be found of that strange gift of immortality, by virtue of which the crudest of barbaric notions may live, eternal in their effects, in the polished doctrines of the most refined systems of law; no more instructive example of the evolution of the most abstruse legal refinements from the simplest germs of thought; no more impressive exhibition of the enormous inherent difficulties of legal progress, which arise from the fact that the advanced ideas of later generations, can from the nature of the case, take effect only through an adaptation of the rude and intractable forms and proceedings inherited from a remote past. As we proceed along these lines of observation we shall incidentally fall in with interesting evidence that much of the legal complexity which we are wont to ascribe to the dark and crooked casuistry of lawyers is in the nature of an inevitable survival of customs, methods, and institutions born of the excusable mental incapacity of our foremost fathers.

So plentiful in the history of our own land are the materials for a short study of this peculiarity of early thought and its sequences that recourse will be here had to these alone, although the subject is susceptible of similar though perhaps less striking illustration from the land law of the Romans, and indeed to some extent from almost any system of law, with reference to either real or personal property.

Lawyers of a later day have experienced no little difficulty in appreciating that Britton, St. Germain, and others of our earliest legal writers spoke advisedly when they defined a freehold interest in land (which bore to our early law the relation occupied in modern law by the word ownership) as meaning the "possession of the soil." Yet the accuracy of this definition at the date of its origin finds the most ample and varied attestation in our authentic legal history. The word "owner" was unknown to our early land law. That one who wrongfully dispossessed another of his land, succeeded to the estate or interest in the land, was one of the most deeply rooted doctrines of the common law from the time when the idea of an estate in lands was first conceived. The dispossessor acquired that which he could sell and transfer, and that which upon his death would descend to his heirs. On the other hand, the person dispossessed had nothing left which any one could buy or which in the event of his death his heirs could inherit. It was almost the middle of the present century before in England this ceased to be the law. The natural effect of this doctrine, as the reader will no doubt be prepared to believe, was to make the law of dispossession one of the most interesting and prolific branches of our earlier jurisprudence. It became directly and indirectly the subject matter of a surprisingly large proportion of judicial decisions, and of a correspondingly large part of the early legal commentaries, and, of course, continued to be expounded and developed in its detailed applications long after the disappearance of the mental and social conditions that gave it birth. Among the common-law applications of the rule were the following:

A wrongful usurper of the possession was considered to take in every case the entire title, or, in legal parlance, the fee, even though he disclaimed an intention to take more than a life estate, for it was said that he could not qualify his own wrong. If appurtenant to the land seized there were easements or rights of enjoyment over other adjacent lands, the intruder by his possession of the principal estate became legally entitled to enjoy such easements. The estate of the person dispossessed was in the language of the law "turned into a right." This "right," although untransferable to any one else, could be released to the intruder, and by such release the estate of the intruder, which was tortious or wrongful, became rightful. But, although words of inheritance were generally necessary to convey more than an estate for life, no such words were necessary in a release to a dispossessor, since the fee or entire estate was already in him, though wrongfully. For the same reason a release to the intruder for a year, or even for a day, was as good as though to him and his heirs forever, since the fee, or entire title, which he already had, though wrongfully, could not, it was said, be curtailed by a deed without entry—that is, without a transfer of the possession. And upon the ground that the estate was already in the intruder, an instrument executed to him by the person ousted, although it purported to give and grant the described premises, was held to operate only as a confirmation of the estate already vested in the usurper. So, while the intruder was in possession, no action could be maintained against him for trespass, or for the value of crops harvested by him, or for other similar profits; nor could such actions be maintained even after the rightful claimant had recovered possession, except by recourse to a legal fiction (invented to avert such injustice), by which for such purposes a temporarily dispossessed person was, after recovery, construed to have been continuously in possession.

The right to dispose of lands by will was first introduced in the reign of Henry VIII by a statute which declared that "all persons having any manors, lands, or tenements may give and dispose of them by last will." In construing this statute, it was held, in harmony with the foregoing doctrines of the common law, that only those persons had lands who were in possession of them, and that dispossessed persons, therefore, had nothing upon which a will could operate. Such was the law in England until changed by statute in 1838. Such also had been the recognized law before the statute of Henry VIII in those counties where by local custom the power to will had previously existed.

But, although a person by being ejected from his lands lost all his estate in them, he was not without rights of redress. If he acted promptly he was entitled to recover his lost ground, and, until prohibited by the statute of Richard III, he might enlist and employ whatever forces were necessary for that purpose. The time within which this right of personal recovery, or, as it was called in the law, right of entry, could be exercised was at first very short.

In the time of Bracton (thirteenth century) it was only four days, that being deemed sufficient time within which to arouse the neighbors and organize an invading force. The right was afterward recognized as continuing a year and a day. Still later it might be exercised during the lifetime of the intruder. Originally entry could be made only as against the intruder personally, not against one claiming under him. Afterward it could be made against the intruder's first successor, then against his second successor, still later against others still more remote, etc. It was about the time of Lord Bacon before a re-entry could be made after the lands, by death of the intruder, had passed into the possession of his heir. It was the wrongful character of the intruder's estate that was supposed to justify re-entry, and it was deemed inadmissible to treat the estate as wrongful in the hands of the heir, upon whom it had been cast by operation of law without any wrongdoing on his part.

The legal effect of a re-entry was to reinvest the ousted person with his lost estate. Originally it was no doubt necessary for him to eject the wrongdoer and resume complete control. It was soon perceived that where two persons were upon the same piece of ground, each claiming possession, he should be deemed to have the possession who had the right to it, and this principle was variously applied with salutary effects. The law was still further mitigated by considering that the effects of re-entry were attained and the estate of the intruder divested by even a temporary entrance of the ousted person upon the land under a claim of right, provided such entry was repeated at least once a year, thus keeping up publicly a continual claim to the land. And it came to be deemed sufficient as an entry if, when the ousted person could not go upon the land for fear of violence, he went as near to it as he safely could and publicly claimed it in the presence of witnesses. By these acts of re-entry and continual claim the person dispossessed could revive and keep alive his estate in the land, so as to have a conveyable and inheritable interest, although the intruder still remained in the actual possession; for, by construction of law, the entry and continual claim were treated as amounting to a recovery of the possession. The law also came to be so relaxed that where one, by the same intruder, was dispossessed of several tracts of land in one county, a re-entry upon one, in the name of all, was treated as a good entry upon all.

It is not surprising that under these circumstances there were few branches of our early law which experienced a more luxuriant growth than those that related to rights of entry, to descents that took away rights of entry, and to the making of continual claim.

If re-entry was not made within the time limited by law, the right to make it became derelict and was extinct; but there still remained the right of recovery by action at law. These actions and their procedure, and the amount of proof exacted, varied according to the length of time the intruder had remained in possession, whether and how many times the possession had been sold or transferred by or under the intruder, and so forth. Into their details it would be unprofitable to go. One who had simply a right to recover lands by action was not only destitute of anything transmissible to his heirs or to a purchaser, but had nothing which could be reached by an act of attainder. It is a noteworthy fact in this connection that our common law has never provided, either as to real or personal property, any form of action for litigating title or right of property independently of possession—a curious circumstance, unmistakably attesting that our legal remedies took form before the conception of property as distinct from possession had received practical recognition in our law.

It was, however, indirectly through its bearing upon modes of conveyance that the primitive view of property right made its deepest impression upon our law. It is manifest that when men dealt in possession only, there could not be two opinions as to the mode of effecting a sale or transfer of it. The only conceivable way was for the purchaser to take the seller's place as actual custodian; hence the universal prevalence in early societies of this mode of conveyance. Even when the theory was well advanced that the possessor of an object had an interest or estate in it, or a title to it, such interests were regarded as inherent in the possession and as inseparable from it, and therefore as passing with it and as being otherwise intransmissible. How, then, could such rights be transferred except by the manual delivery of the object? Even though there were a deed or a written or oral contract, its only function was to evidence an intent to abandon the possession in favor of another, and it was still only through the assumption of the actual possession by such other that he succeeded to the advantages resigned by the maker of the deed.

It is possible, but not certain, that during the later Anglo-Saxon period of our history this mode of conveyance had already been outgrown, and that property was then transferred by deed or charter alone, perhaps by reason of contact with Roman civilization. Be this as it may, the original mode of conveyance was, as a feature of the feudal law, so effectually resumed or continued upon the advent of the Normans that, except by means of judicial proceedings, real or feigned, the common law of England has never provided any other mode of directly transferring the entire estate in land than the solemn and public delivery of possession in the presence of the assembled neighbors, known in legal phrase as the "livery of seisin" the word "livery" meaning delivery, and the word "seisin" meaning possession.

Although from a comparatively early day delivery was, from evidential considerations, usually accompanied by a deed, no writing was necessary until so made by the statute of Charles II; and the livery of seisin, though gradually simplified and softened into a symbolic ceremony, was indispensable to a common-law transfer of complete title until abolished by the statute of Victoria.

As already pointed out, this exclusive mode of conveyance was the natural result of the failure of early society to recognize any estate in lands which did not rest upon subsisting possession.

There are occasions upon which the possessor of lands desires to at once invest another with an estate in them which shall not commence in enjoyment or possession until a future day, as by now conveying A an estate in lands to take effect in possession when he shall become of age or marry, or upon the death of his father.

The tendency to create such future estates, representing as it does a natural desire which has always operated with more or less force since the idea of estates in land first obtained, has at times been greatly stimulated by English social and political conditions. Nor have such estates ever been deemed objectionable from the standpoint of public policy. It will be observed, however, that they are hard to reconcile with the doctrine that there can be no estate without possession, and hence no transfer of estate without transfer of possession. If, for example, in the case above supposed, possession were withheld from A, he would, in the light of that doctrine, fail to acquire any estate wh tever. If, on the other hand, possession were immediately delivered, he would get a present estate rather than a future. To what extent, then, was it possible to create future estates consistently with the ancient notion that without possession there could be no estate? This apparently simple question proved to be of almost incredible difficulty. Centuries of forensic discussion and adjudication were required for such a solution of it as the interests of society seemed to require. The answer, when complete, constituted the bulk of the marvelously complex law of remainders and executory devises.

So great was the social pressure in favor of future estates that there were doubtless points at which the reasoning was somewhat strained in order to overcome the almost insuperable resistance of the old notions respecting possession—slight deflections from the true line of logic being one of the indispensable agencies for adapting early law to the exigencies of later society. Yet the intention was to recognize future estates only so far as they were compatible with the established doctrine that an estate unsupportedby possession was impossible; and the question of compatibility was so closely reasoned through all its possible ramifications that there are few minor topics in any science that have elicited a more searching analysis, or which present a greater mass of subtle distinctions.

Of the body of abstruse rules thus evolved, it will be impossible within the limits of this paper to convey any adequate conception. It may be explained, however, that the door through which future estates were admitted into our law was the theory that the perpetual right of enjoyment implied from possession was an entire estate, which, by words used at the time of delivery, could, in point of time, be carved up into a number of fractions, to be successively enjoyed by different persons; and that as all these persons combined took only one entire estate, a single delivery would suffice for all, the taker of the first fraction being construed to receive the possession on behalf of all. Thus if delivery of land to A were accompanied by declaration or deed to the effect that A should have it for a term of years, then B for his life, the remainder of the estate after B's death to go to C and his heirs forever, these future estates to B and C were deemed valid, because B and C were regarded as in on the possession delivered to A.

This theory was countenanced only upon the ground that the total of the several fractional estates, thus created by a single act, was precisely equivalent to the one perpetual and uninterrupted right of enjoyment, which could be conferred upon one person by a single delivery. Any proposed future estate which could not be justified by a strict application of this theory was legally impossible. Hence, if by the terms of the delivery, or by reason of any subsequent contingency, the several fractions were not, or ceased to be, the exact equivalent of one entire estate, the future estates either never arose, or forthwith collapsed. There could, therefore, be no future estate, unless supported by a prior and present estate created by the same act; and each fractional estate must be such as to take effect in possession immediately upon the determination of the next preceding estate; otherwise it was void, and necessarily involved all succeeding estates in the ruin.

This stringent limitation arose into great importance, and indeed became the source of a large part of the law of future estates, when at a later day, upon grounds unnecessary and perhaps difficult to reproduce, it was held permissible to create future estates, doubtful or contingent as to the time when, or persons in whom, they should vest. Thus delivery might be made to A for his life, then to go for life to B's eldest son (not yet born), then forever to C and his heirs. Here it was a matter of contingency when, if ever, B would have a son. If A died before the birth of such a son, all the subsequent estates collapsed, because, upon the ground already noticed, there could be no intermission, however short, between the successive estates. So, in the case supposed, it was possible for A, at any time, by his own act in voluntarily surrendering his own life estate, to destroy the future estates supported by it.

The great injustice and confusion of titles which flowed from this feature of the law finally led to the device of designating in cases of contingent future estates, trustees, in whom it was provided the estate should vest for the time being, in the event of the determination of a prior estate, before the contingency had happened, upon which the next succeeding estate was to take effect.

It was the livery of seisin which also set in motion and gave direction to that curiously complicated succession of ideas and legal devices which, during a period of more than four hundred years, made up the eventful and withal romantic history of uses, or, as they are now called, trusts—a history which at one time or another has had vital points of contact with nearly all the legal, political, religious, and domestic relations of life. That which made the use the nondescript but marvelously popular and mercurial thing that for centuries it was, was the tenacity with which the common-law courts adhered to their doctrine that, because the livery of seisin was not made to the beneficiary of a use, he took nothing which could be regarded as property, or which could be charged with the burdens or liabilities of property; that in fact "he had no more to do with the land than the merest stranger in the world"; while at the same time his every claim of control over the land was regularly enforced by courts of equity. Again, to the entanglement of the common law of possessions with the equitable law of uses, which was brought about in the middle of the sixteenth century through certain expressions in the statute of uses, and which gave rise to such obscure questions as the character of the seisin which was necessary under the statute to feed or serve uses, are directly traceable the most subtle distinctions of the law of springing and shifting uses and powers, words which, though the unprofessional reader may not fully understand, he may safely assume to stand, together with remainders, for all that was and is most abstruse and intricate in our law.

So it was the livery of seisin which, either directly, or indirectly through the law of uses, gave color and form to all the methods of conveyance, which through common-law devices or statutory provision were by strangely circuitous methods gradually substituted for it in the transfer of lands. The impossibility of compressing into this paper an adequate review of the developments which our subject underwent in connection with uses and conveyancing makes it necessary to reserve that interesting chain of events for future consideration.

That the early law took no cognizance of ownership apart from possession was strikingly exhibited in the view which it took of inheritances. The estate of a possessor in lands was palpably terminated by his death. Yet his heir acquired no estate in the lands except by entering into the possession. If the heir died before entry, the lands went, not to his heir, but to the next heir of the ancestor who died in possession. In like manner, though one had received a deed of lands, yet if he died before entering into possession, he was deemed not to have acquired any estate, and consequently left nothing which his heirs could inherit, or of which his widow could have dower. And so it was, although he had actually entered into the possession under a deed, unless he had been publicly invested by the ceremony of livery of seisin.

It was among the miscellaneous corollaries of the livery of seisin that it was impossible for a landlord to sell his interest in the land without the concurrence of his tenant. The tenant being in possession, the landlord could only make livery of seisin to the purchaser by arranging with the tenant to temporarily retire, so that he, the landlord, could take the possession and deliver it, after which the tenant would resume possession under the new owner. In this and a variety of other ways the livery of seisin entered into the law of attornment.

We have remaining space only for casual reference to some of the processes, in addition to those already mentioned, by which the old notions and customs, which have been our theme, were gradually displaced or assimilated by modern legal conceptions. The idea of possession was gradually enlarged, so that one who had been in the actual possession was deemed to continue in it until it was seized by another, even though the property were in fact vacant.

Delivery, which at first must be made on the land, was afterward permitted to be made in presence of the neighbors at any place in sight of the land, and later at public places even more remote; and delivery of one tract might be made for several tracts in the same county; but in none of these cases did the estate pass until, in pursuance of such constructive deliveries, possession had been actually taken. So it became the custom to substitute a symbolic for an actual delivery, as by delivering a turf from the land or a key of the house. And so there came a time when, if one had bought and paid for land from another, who then refused to make livery of seisin, courts of equity would specifically enforce the agreement by compelling the delivery.

The celebrated statute of uses, 27 Henry VIII, opened up the way for conveyances without delivery. Into these newly opened channels the conveyancing of the kingdom largely flowed, and the livery of seisin dropped into comparative desuetude. By later statutes, principally of the present reign, the ceremony and many of its related rules have been finally abolished. It was never practiced to any considerable extent in this country, which was not colonized until after the statute of uses.

Although the idea that there could be no estate in land without possession was so inextricably interwoven with the doctrines of the common law that escape from its meshes was impossible except by resort to legislation, the popular conceptions upon the subject, being comparatively unhampered, underwent necessarily a much more rapid change, so that in the popular sense or judgment interests in land, independently of the possession, existed centuries before it was possible for them to receive legal recognition. Finally, even to the most technical of lawyers, the old view came to seem like scarcely more than a legal fiction. In its direct applications it has now almost disappeared from our law. Its effects are simply ineffaceable. The time will never be when the legal doctrines of the English-speaking race will not still present numberless peculiarities of structure inherited from this prolific old juristic root.