Archive for the ‘Legal history’ Category

A History Lesson on the Development of Cash Rents

Friday, April 27th, 2012

In early English society, rent was paid by way of labor or other services.  Only gradually did rent became an item paid in money.  Consider this analysis by Oxford Prof. A. W. B. Simpson.

“At the time of the Conquest [in 1066] large parts of the country were not cultivated, and those that were, were not farmed by individual farmers acting independently of each other, each relying on his own resources, but by a communal system of agriculture which depended for its success upon the co-operation of all the members of a small village community, formed an economic unit which was largely self-supporting.”

“The lands occupied by such a community would be partly cultivated and partly waste land … In this arable land the inhabitants of the manor had individual holdings, often consisting of scattered strips, each unfenced from those of his neighbor. The great open fields which were the result of this practice were cultivated and cropped uniformly in accordance with local custom.”

Comment – Note how joint tenancies, which carry with them the joint right of possession of property, fit neatly into this ancient system.

“Feudalism [ ] imposed upon each lord the duty to administer justice to his tenants, and to hold a court in which they might litigate … The Royal justices, when, in Glanvil’s time [he died 1190] were working out the embryonic land law, took a momentous decision. They decided that the Royal courts would concern themselves only with persons who held their lands by free tenure.”

“If we are to understand who these unfree tenants were, and what were the marks of their curious status, we must look at the history of that manorial system of economy which prevailed over a large part of England in the Middle Ages, and which, in some isolated instances, has lasted even up to the present day.”

“Before 1066 a high proportion of these communities had fallen under the domination of powerful individuals, but the precise relationship between such lords and the inhabitants of the manors varied enormously … A large proportion of the humbler cultivators were men who were personally free, but who were bound by custom [ ] to perform services of an agricultural nature or supply produce to the lord.”

The agricultural services would usually take the form of a duty to cultivate the lands which the lord farmed as his own – the demesne lands, as they came to be called … After the Conquest the personal status of many of these landholders tended to be depressed, and many of those whose ancestors in Anglo-Saxon times had been free men came to be reduced to some form of personal subjection to their lord.”


“Such men, the villeins of medieval law, came to occupy a curious position in consequence of the way in which the early lawyers worked out the legal implications of their status.  Broadly speaking they became only relatively unfree.”

“In most manors there was to be found a class of tenants who were undoubtedly free men. Some such men might hold their lands by services obviously appropriate to free men alone – by knight service for example.”

“In many cases, however, they might be bound to perform services which did not differ noticeably from those owed by villeins … In the end this forced the courts to alter their attitude to such tenants, but this was not to happen until the very end of the fifteenth century.”

“Though there would be oppressive lords, and villeins whose complaints have not come down to us, yet in general the services due from a villein tenant were as rigidly
fixed and probably as generally observed as those due from free tenants.  They were defined by local custom, which was thought to be binding on lord and tenant alike.”

“In practice the villein tenant was frequently as well off as the tenant who held by free tenure.  His services were fixed and recorded, and so were the various incidents of his tenure … In the course of the fourteenth century the practice of commuting rents and services in kind for money payments became widespread, and the process continued in the fifteenth and sixteenth centuries.  Various factors have been selected by historians as being the causes of this phenomenon.”

“In some manors commutation was probably introduced because it led to more efficient estate management …The Black Death destroyed a large proportion of the villein tenants of manors, and the ensuing competition for labour amongst manorial lords brought into being a class of labourers prepared to hire out their services to the highest bidder they could find.”

By the middle of the fifteenth century the mass of villein tenants no longer laboured for their lords, but paid him a fixed rent for their holdings in lieu of personal service … The commutation of services naturally enhanced the social status of tenants in villeinage, and, at the same time as it becomes common, we find the name villein tenure giving way to the more modern name of copyhold tenure … The court roll itself became a sort of register of titles to copyhold land, for since all transactions were recorded upon the roll, it provided conclusive evidence of a copyholder’s rights.”

“Throughout the course of the Middle Ages the number of villeins declined, and the class became extinct by the beginning of the seventeenth century: the law tended to encourage liberty, and there were many ways in which a villein could become free …The last reported case is Pigg v. Caley (1618). The disappearance of villein status is still rather a mystery; there were still a considerable number in Elizabeth’s reign.  The status of villeinage was never formally abolished.”

A. W. B. Simpson, An Introduction to the History of the Land Law (Oxford University Press 1961), pages 146-151.

A. W. B. Simpson on English Wills in the 12th and 13th Centuries

Sunday, April 22nd, 2012

A study of the ancient English common law begins, for many points, with the law that developed after 1066.  The history of inheritances of land is certainly curious, as we inevitably find it tied to the duties owed in a feudal, agricultural society.

Here is an excellent analysis from Oxford Prof. A. W. B. Simpson.

The medieval law did not recognize the validity of a will of lands. In Anglo-Saxon times [i.e., before the Norman invasion in 1066] it is clear that ‘bookland’ – land held by written charter – could be devised [i.e., transferred at death by way of a will], and this power of devise was the chief peculiarity of such land.”

“After the Conquest a power of testamentary disposition of land continued to be recognized for a while in the post obit gift.  In the twelfth century this power was discountenanced by the Royal court.”

Pause here.  Prof. Simpson states, and he is supported by many learned writers, that the courts in the 12th century did not recognize the transfer of real property at death by way of a will.  Consider also that jurisdiction over wills and testaments was found in the ecclesiastical courts, to wit, the courts organized under the auspices of the Catholic Church, then the predominant religion in England.

Comment – A “testament” is a written document that transfers ownership of personal property at death.  In contrast is a “will,” which is a written document that transfers ownership of real property at death.

Jasper National Park, Alberta, Canada

Prof. Simpson continues.  “Once it became clear that (in general) a gift of land required a delivery of seisin, a gift to take effect upon the donor’s death and not before could hardly be accepted, for the gift lacked the essential requirement of livery of seisin. Thus the post obit gift as such was doomed by ordinary principle.”

“But the line between a deathbed gift (perhaps accompanied by livery), a gift inter vivos to take effect on death (the post obit gift), and a will which ‘makes an heir’ is not easy to draw, and it does not seem that the Royal court in the twelfth century indulged in any subtle analysis; rather it condemned anything in the nature of a testamentary disposition, whatever form it took.”

So we find the law in England, at least into the time of Henry II, the king who helped establish the great tradition of the common law.

Adds Prof. Simpson, “In the thirteenth century the attitude changed …Quite why it was adopted is a difficult question; perhaps a desire to prevent disherison of heirs, coupled with a desire to prevent the loss of feudal incidents, influenced the Royal judges.”

Two more points from Prof. Simpson.  First, the desire to avoid taxes runs deep in English legal history.  Notes Prof. Simpson, “Consider a gift to A, with a remainder to his heir in fee simple. The remainder is contingent, but this is not the only possible objection to such a limitation …”

“This is simply a tax-dodging trick, and early contingent remainders were often tainted by connexion with evasion of this kind. One can well see that the courts were predisposed to treat them with caution, and the learned Littleton regarded them as always invalid, though Littleton’s view was hardly law in his own day, and did not prevail after his time.”

And a final comment on the power of the courts, which was as true in the year 1300 as it is today:

“But this need not surprise us, for the loss which is suffered when a judgment goes unsatisfied through the defendant’s lack of means is not in the nature of things remediable by the courts.  It would be odd in any branch of the law to question the validity of a judgment simply upon the ground that the losing party was penniless or landless.”

A. W. B. Simpson, An Introduction to the History of the Land Law (Oxford University Press 1961), pages 96-131.

L.S. Sealy – Categories of Fiduciary Duties

Tuesday, January 10th, 2012

In a law review article published 50 years ago, Cambridge law professor L.S. Sealy reviewed two centuries of English case law on fiduciary relationships.  He concluded, correctly, that different relationships give rise to different duties.

As a starting point, “Fletcher Moulton L.J. once warned against what he called ‘the danger of trusting to verbal formulae’ in this way. After illustrating a number of fiduciary situations and describing the ways in which the courts had interfered to grant relief in these cases, he said:

“Thereupon in some minds there arises the idea that if there is any fiduciary relation whatever any of these types of interference is warranted by it.  They conclude that every kind of fiduciary relation justifies every kind of interference.  Of course that is absurd.

“The nature of fiduciary relation must be such that it justifies the interference.  It is obvious that we cannot proceed any further in our search for a general definition of fiduciary relationships. We must define them class by class, and find out the rule or rules which govern each class.”

AustriaSuch statement is too often ignored by lawyers and judges alike.  Consider this further analysis:

“Fry J.’s definition emphasises the essential quality of all fiduciary relationships: every remedy which can be sought against a fiduciary is one which might be sought against a trustee on the same grounds.  But it is really not a definition at all: although it describes a common feature, it does not teach us to recognise a fiduciary relationship when we meet one.

“Still less does it assist us when we are faced with a particular relationship and asked the practical question: does a certain principle of the law of trust and trustee apply?  John is my agent and is therefore, on good authority, in a fiduciary position towards me.  Does this mean that he must not mix with his own money the sums which he holds on my account?  Is there a presumption of undue influence if I make him a gift?  Is he disqualified from becoming the lessee of land formerly held by me, after I have failed to secure a renewal of the lease for myself?  Do all the trust principles apply to this fiduciary situation?

When we examine the authorities, we learn – perhaps with some surprise – that this is not so. The word ‘fiduciary,’ we find, is not definitive of a single class of relationships to which a fixed set of rules and principles apply.  Each equitable remedy is available only in a limited number of fiduciary situations; and the mere statement that John is in a fiduciary relationship towards me means no more than that in some respects his position is trustee-like; it does not warrant the inference that any particular fiduciary principle or remedy can be applied.”

And he elegantly explains why banks do not owe fiduciary duties to their borrowers: “No trust can, of course, exist where there is a debtor-creditor relationship: In equity, restitution stopped where repayment began.”

L. S. Sealy, Fiduciary Relationships, 1962 Cambridge L.J. 69 (1962)

The Long-Standing Connection Between Real Estate Law and Probate

Monday, October 31st, 2011

I am reading a series of lectures delivered in 1972 by S.F.C. Milsom and collected in The Legal Framework of English Feudalism (Cambridge University Press 1976).  The text is difficult, as it frequently refers to rights, remedies, and procedures that long ago ceased to be relevant in the law of English-speaking nations.

Still, as I read along, I can see contours develop that explain how the law evolved from the year 1200 forward.  The lecturer concentrates on legal writings from the early 1200s, when England was still operating under a feudal system.

Scholars tell us that the law of real property and the law of descent (i.e., succession to real property) were closely connected, at least through 1850.  So intimately connected that both topics were covered in one treatise, which focused on grants in real property.

Disney Cruise Line's DreamConsidering the feudal roots of English law, this connection makes sense.  The feudal system was dependent on duties and obligations owed by the holder of a tenement to his lord.  (Note that I did not say “tenant” – this word implies a more modern relationship.)

Feudal duties were greater than those relating to (i) payment of rent and (ii) the maintenance and use of the real property, which are the predominant issues in contemporary landlord-tenant relationships.

Obviously, the lord wanted to have control over the person in possession of his property, so that he could obtain proper satisfaction of the obligations owed in connection with the land.

Listen to Prof. Milsom’s explanation.  “Conveyance, inheritance, litigation:  for us these are distinct processes transferring or determining abstract rights.  The ancient reality, preserved into later times only in the formalities of copyhold, saw all three as preliminaries to what mattered: the lord’s acceptance of this tenant …

“The lord must consent lest he be forced to receive homage for his fee from an enemy or some otherwise unsuitable person … Only the lord’s acceptance can make a tenant.”

When you consider the feudal obligations, and the impact that the death of the tenement holder would have on the discharge of these obligations, you can understand why real property law and the law of inheritances were closely connected.  

Another matter of interest is the shift from trial by combat to trial by jury.  Again, with consideration to the substantial impact of the law real estate law as it pertains to a feudal society, the procedural shift (who is the trier of fact?) makes sense.  In a dispute between a tenant and his lord, the lord always could be expected to produce a better, stronger champion for his cause.  Thus, the deck was stacked against the tenant, and preservation of fairness required that the dispute be resolved by recourse to peaceful means, such as a jury.

Tracing the Origin of the English Trust to the Year 1350

Sunday, August 21st, 2011

Here is the clearest explanation I have found to date regarding the rise of trusts in English law.  Bear in mind that England was still a feudal system in the year 1350.  Also bear in mind that a court of law could not enforce a trust – such jurisdiction lay within the court of equity, which was still developing.

Profs. Maitland and Montague take the stage with the following concise statement of legal history.

“From the field of the common law the chancellor was slowly compelled to retreat … It seems possible that this nascent civil jurisdiction of the chancellor would have come to naught but for a curious episode in the history of our land law.

“In the second half of the fourteenth century many causes were conspiring to induce the landholders of England to convey their lands to friends, who, while becoming the legal owners of those lands, would, nevertheless, be bound by an honorable understanding as to the uses to which their ownership should be put. There were feudal burdens that could thus be evaded, ancient restrictions which could thus be loosened.”

There it is.  The wealthy landowners sought to avoid the feudal burdens owed to their lords.  The Chancellor, acting on behalf of the king, recognized these arrangements.

“The chancellor began to hold himself out as willing to enforce these honorable understandings, these ‘uses, trusts, or confidences,’ as they were called, to send to prison the trustee who would not keep faith.”

Normandy coast

Add Maitland and Montague, “It is an exceedingly curious episode.  The whole nation seems to enter into one large conspiracy to evade its own laws, to evade laws which it has not the courage to reform.  The Chancellor, the Judges, and the Parliament seem all to be in the conspiracy.”

“And yet there is really no conspiracy: men are but living from hand to mouth, arguing from one case to the next case, and they do not see what is going to happen. Too late the king, the one person who had steadily been losing by the process, saw what had happened. Henry VIII put into the mouth of a reluctant Parliament a statute [the Statute of Uses, enacted in 1535[ which did its best – a clumsy best it was – to undo the work.”

“But past history was too strong even for that high and mighty prince.  The statute was a miserable failure.  A little trickery with words would circumvent it.  The chancellor, with the active connivance of the judges, was enabled to do what he had been doing in the past, to enforce the obligations known as trusts.”

How fascinating is this history to our current law of trusts.  The “traditional” trust arose during a 50-year period, as the wealthy sought to avoid the obligations of feudal society.  They employ an exceedingly flexible device, which accomplishes its purpose, but only because many learned people look away during this period.

So also it is with our current law of “living trusts.”  These estate planning trusts came to prominence during the last 50 years.  They suffer from an intellectually deficient legal platform; it makes little sense to contend that one person can simultaneously serve as trustor, trustee, and beneficiary.

Such trusts exist solely to transfer property at death, and solely to avoid the jurisdiction of the probate court.  And yet, with a collective nod, we in the legal profession have said, “Yes, this quasi-will should be valid, and we should honor it, notwithstanding its failure to comply with centuries of law relating to wills.”

The old is new again.

Maitland and Montague, A Sketch of English Legal History (G. P. Putnam’s Sons 1915)

Historic Roots of the English Legal System

Tuesday, April 12th, 2011

Scholars trace the creation of the English common law to the second half of the 12th century, at the time of Henry II.  Explains Belgian scholar Raoul Van Caenegem in The Birth of the English Common Law (Cambridge Univ. Press 1973), “the Common Law of England – so different from the jus commune or common learned law of the European universities – is the oldest national law in Europe.  It is the oldest body of law that was common to a whole kingdom and administered by central court with the nation-wide competence in first instance.  In the rest of Europe, law was either European or local, not national.”

Prof. Van Caenegem continues.  “The breakthrough of a centralized and modernized legal system took place exceptionally early in England (and Normandy), before Roman law was in a position to exert any profound influence . . .

“If the modernization of law came exceptionally early in England, it was also remarkably systematic.  The activity of the justices at Westminster and in eyre and the various actions with which they dealt formed a coherent whole and were grasped and described as such.  This new law and its judicial apparatus were national and royal.  Not local magnates, but the king and his central justices were the bearers of the whole system and application was nation-wide.  This was very unlike the Continent, were local and regional custom reigned supreme . . .

“The breach came during the momentous modernization of European society in general, and the law in particular, that took place in the 12th and 13th centuries, a watershed of the greatest importance . . .

The professor traces these developments to William the Conqueror’s invasion of England in 1066.  After losing control over Normandy at the beginning of the 12th century, the English rulers (of Norman descent) began to centralize the legal system in England.

“English law prefers precedent as a basis for judgments, and moves empirically from case to case, from one reality to another.  Continental law tends to move more theoretically by deductive reasoning, basing judgments on abstract principles; it is more conceptual, more scholastic and works with more definitions and distinctions.”

Holyrood Palace in Edinburgh

Twenty years of chaos during the first half of the 12th century gave Henry II a footing on which to establish binding legal precedent in a society that had been sorely lacking therein.  “It was a coincidence again that Henry II ruled after Stephen and Matilda had created such chaos that the country was ripe for the stern, nation-wide clean-up of the Assizes and the liquidation of judicial contradictions and uncertainties through centralization in the royal courts.”

“This Anglo-Norman law only became English after the loss of Normandy, nurtured (while it withered away in Normandy) by a state that had turned from the Anglo-Norman into an English state, with English instead of French kings, justices of English descent on the benches, and with an aristocracy that had in the end become so English that the conquest was viewed with distaste by men who were French in speech and habits, and who owned their whole family fortune to William I and his successors.  It was in the 13th century the diffusion of Norman and English into one nation took place in that, and Common Law, which bound together for freemen of every descent, became truly English.”

Who created the English Common Law?  Not surprisingly, it was initially established to protect the upper class.  “The Common Law took no interest in the unfree peasants who were harshly excluded and amerced if they tried to use its benefits.  The man who created it were members of a small aristocracy and it was accessible to them and the free minority of the natives [ ] and they created it in order to preserve harmony among the free, landowning top class.”

(The professor notes that French was the language of the English legal system from the late 13th century until 1731, when English was established as the official language of the law in England by an act of Parliament of George II.)