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What was a Right of Entry?

Published online by Cambridge University Press:  16 January 2003

S.F.C. Milsom
S.F.C. Milsom*
Affiliation:
University of Cambridge, Fellow of St John's College, Cambridge
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Abstract

For five centuries most lawsuits claiming land hinged on the exercise of a right of entry whereby the claimant had become instantly seised. Historians have assumed that he had previously been disseised, the disseisor’s wrongful possession not having matured into a protected seisin. But the mechanism, not confined to reversing disseisins, was the alternative to a real action and therefore claimed title by inheritance. Inheritance did not start as the automatic devolution of a non-existent ownership. On each death the lord made a new grant to the heir and put him in seisin, which was not an abstraction like possession but by definition conferred by the lord. Changes beginning in the 12th century eroded the lord’s part in inheritance: instead of putting heirs in seisin lords athorised them to put themselves in; and finally one had the right of entry if a supposed lord could have given authority.

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Articles
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The Cambridge Law Journal , Volume 61 , Issue 3 , 11 December 2002 , pp. 561 - 574
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Copyright © Cambridge Law Journal and Contributors 2002

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References

1 There was no choice for one who had made a conditional grant. The condition gave him no right of action: if it was broken his only remedy was to enter; and the only other person who could enter was the grantor's heir.

2 Below, n. 12.

3 F. Pollock & F.W. Maitland, History of English Law (2nd edn. 1898), II, 52. Cf. F.W. Maitland, The Forms of Action at Common Law (edn. 1936), 28.

4 Bracton, f. 163, ed. Thorne, esp. at III, 22.

5 Unlike Maitland, the historian of novel disseisin gave no credence at all to the four-day limit itself. But he did not dissent in principle; he still assumed that what mattered was lapse of time, but thought the length of time was a matter of discretion: Sutherland, D.W., The Assize of Novel Disseisin (Oxford 1973), esp. 97–104Google Scholar.

6 “The Beatitude of Seisin” (1888 Law Quarterly Review), Collected Papers, I, 407-457.

7 F. Pollock & F.W. Maitland, History of English Law (2nd edn. 1898), chapter 4, II, 1-183.

8 Milsom, S.F.C., The Legal Framework of English Feudalism (Cambridge 1976)Google Scholar; “Maitland and the Grand Assize” (1995) Haskins Society Journal, vol. 7 (Woodbridge & Rochester NY 1997), 151-177.

9 There are clear statements in Glanvill IX 1, IX 8; and cf. VII 12, VII 17. These scattered statements could hardly have been overlooked if Glanvill had brought them together in a focussed discussion. But the matter was peripheral for one expressly focussing on the king's court, especially since this was the routine business of lords’ courts—unlike the exceptional cases begun by the king's writ (cf. the frequent claim by a tenant that he owed suit of court only when a thief was to be judged or the king's writ heard). Not only was it peripheral for Glanvill: it was among the assumptions of everyday life shared by the writer and his readers, but altogether lost to historians.

10 The most obvious correspondences between the words of the writ and the process of lords’ courts are:- “unjustly and without judgment” (n. 3 above); the provision about the defendant's bailiff; and the order for the chattels to be put back (the courts could resort to the land only after a series of distraints by chattels). Historians have suggested other (and rather strained) explanations for each of these points one by one, without regard for the debt being run up with coincidence, e.g., Brand, P.A., “Milsom and After” in The Making of the Common Law (London & Rio Grande 1992), 203 esp. at 222-223Google Scholar; D.W. Sutherland, The Assize of Novel Disseisin (n. 5 above) esp. at 30-31. For cases in the early rolls in which the defendant to an assize was indeed the plaintiff's lord who expressly relies on the due process of his court (which he must recite, and which his court has to attest) see Legal Framework (n. 8 above), 8-15.

11 Magna Carta (1215) c. 39, (1225) c. 29. The puzzle was itself a result of novel disseisin. One effect of the assize was that lords’ courts ceased to push their process beyond the taking of chattels (which in turn came to be seen as a self-help remedy independent of any judgment), so that the conditional “tenure” of tenants began indeed to look like unconditional “ownership”, and the old due process invoked by the Charter lost its meaning. Thorne noted a similar effect of mort d’ancestor on the perception of inheritance, n. 24 below.

12 Commentaries, III, 174-175 (cf. II, 209): “the party entitled may make a formal, but peaceable, entry thereon, declaring that thereby he takes possession; which notorious act of ownership is equivalent to a feodal investiture by the lord”. Maitland rejected the feudalism in Blackstone as a matter of history, but nevertheless saw it as largely responsible for the clarity and coherence of Blackstone's account of property law; Collected Papers, I, 480 at 488-489; “Two Lectures …” (1889) printed in [1966] Cambridge Law Journal, 54 at 65-70. For references showing Maitland's contempt for feudalism see “The History of English Law: Centenary Essays on ‘Pollock and Maitland’”, (1996) 89 Proceedings of the British Academy at 246.

13 Milsom, S.F.C., The Legal Framework of English Feudalism (Cambridge 1976), 92–93Google Scholar.

14 Magna Carta 1215 c. 34; 1225 c. 24.

15 G.D.G. Hall, “The Early History of Entry sur Disseisin”, Tulane Law Review, xlii (1968), 584; S.E. Thorne, “Translator's Introduction”, Bracton, III, xxiii-xxix; Milsom, S.F.C., “Maitland and the Grand Assize” (1995) Haskins Society Journal, vol. 7 (Woodbridge & Rochester NY 1997), 151 at 171-175Google Scholar.

16 Maitland was clear that early substitutions were made by fine; and had it not been for a single statement in Bracton he would have regarded “private” substitution without the lord's consent as virtually unthinkable before Quia emptores. It now seems clear that Maitland misunderstood Bracton's statement. The waters were further muddied by Plucknett, who took Magna Carta (1217) c. 43, (1225) c. 36 as showing that already by 1217 a tenant could substitute even a religious house without his lord's consent. For discussion and references see Milsom, S.F.C., The Legal Framework of English Feudalism (Cambridge 1976)Google Scholar chapter 4, especially at 103-104 and 146-153. When Maitland referred to substitutions being made by fine, he of course had in mind the classical fine in the king's court as a known conveyancing device. But it is likely that “fines” were first made in lords’ courts, with a substitution being validated by the peers of the fee and taking written form (if any) in a charter witnessed by them.

17 Milsom, S.F.C., The Legal Framework of English Feudalism (Cambridge 1976), 88–102Google Scholar; “Maitland and the Grand Assize” (1995) Haskins Society Journal, vol. 7 (Woodbridge & Rochester NY 1997), 151 at 170-175.

18 But (as original writs) the writs of entry were not a sudden invention. They seem to have evolved from essentially judicial writs summoning juries to pronounce on special issues reached in writs of right. See The Legal Framework of English Feudalism (preceding note) at 95-102.

19 F. Pollock & F.W. Maitland, History of English Law (2nd edn. 1898), II, 64: F.W. Maitland, The Forms of Action at Common Law (edn. 1936), 85.

20 Historical Foundations of the Common Law, 2nd edn., 143.

21 Bracton's Note Book, no. 1792, translated in Baker, J.H. & Milsom, S.F.C., Sources of English Legal History (London 1986), 33Google Scholar. Because of the complexity of the issues which might be hidden in a general verdict, and of the fear of an attaint with its ruinous consequences, the Statute of Westminter II in 1285 by c. 30 was to give recognitors a statutory right to insist on a special verdict in novel disseisin. Before that it was in the discretion of the justices.

22 The second daughter might still have had a claim for the whole of the 41/2 acres as “hearth-child” or for a half of the 6 acres as parcener with her sister. But having gone in without the lord's warrant she and her husband were not now seised. Cf. Curia Regis Rolls, XVIII, no. 1958.

23 This homage was the basis of “curtesy”, the widower's right to hold his dead wife's land so long as he lived even if there was an heir of full age.

24 Assize of Northampton, c. 4, text in Stubbs’ Select Charters (9th edn. reprinted 1946), 179–180. For the ultimate effect of mort d’ancestor on the perception of inheritance, see S.E. Thorne, “English Feudalism and Estates in Land” (1959 Cambridge Law Journal) reprinted in Essays in English Legal History (London & Ronceverte 1985), 13-29. The assumption that this assize was another possessory remedy has hidden its original role in protecting tenants against their lords.

25 Cf. Glanvill IX 1, IX 4.

26 Glanvill IX 6. For a related fossil see Glanvill VII 10, discussed in Milsom, S.F.C., “The Origin of Prerogative Wardship” in Law and Government in Medieval England and Normandy, ed. Garnett, G. and Hudson, J. (Cambridge 1994), 223–244Google Scholar. There are various incongruities in Mr. Hall's translation which follows that of Bearnes. They partly arise from adherence to the normal grammatical rule referring a personal pronoun to the person last named. But that rule may always be overridden when it is obvious that the person denoted was the subject of the passage as a whole (in this case obvious even without the rubrics “The wardship of chief lords”).

27 Dialogus de Scaccario, ed. C. Johnson 1950, 94.

28 Stat. Marlborough c. 16; Provisions of Westminster, c. 9.

29 Bell, H.E., The Court of Wards and Liveries (Cambridge 1953)Google Scholar.

30 Statute of Marlborough, c. 16, following Provisions of Westminster, c. 9. For examples of a lord's action on the death of his tenant appearing in early plea rolls, sometimes in appeals of felony, see Milsom, S.F.C., The Legal Framework of English Feudalism (Cambridge 1976), 168–170Google Scholar.

31 Curia Regis Rolls, V, p. 169 (simplex contrasted with plenaria seisina); Bracton's Note Book, no. 348.

32 Curia Regis Rolls, VII, pp. 168-73; cf. Rolls of the Justices in Eyre for Lincolnshire 1218-19 and Worcestershire 1221, 53 Selden Soc. (1934), no. 256.

33 VII 9.

34 Cf. Roll & Writ File of the Berkshire Eyre of 1248, 90 Selden Society (1973), no. 388.

35 Glanvill IX 6. Cf. VII 9 where the same is prescribed if there is doubt whether the heir is of age.

36 Curia Regis Rolls, XVII, no. 213.

37 When Richard died his next brother Geoffrey of Brittany was already dead but had left a daughter Eleanor and a posthumous son Arthur. John was Geoffrey's younger brother.

38 Glanvill VII 3.

39 Cf. the surprising omission by historians to pay any attention to the scattered statements in Glanvill about the power of a lord in his own court without writ to take the tenement in case of default, above, n. 9.

40 Curia Regis Rolls, XII, no. 2182; Brocton's Note Book, no. 1731.

41 Brocton's Note Book, III, p. 568, n. 3.

42 Curia Regis Rolls, XVI, no. 1173.

43 Curia Regis Rolls, XVII, no. 1013.

44 “Consuetudines diuersarum curiarum” in Select Cases of Procedure without Writ under Henry III, 60 Selden Society (1941), cxcv-cciii at cxcix-cc.

45 YB 32 & 33 Ed.I (R.S.), 518. The note is in Latin and one of a group of instructional notes included among transcripts of enrolments in a year book manuscript.

46 Curia Regis Rolls, XVIII, no. 1966.

47 E.g. YB 44 Lib. Ass. pl. 34, f. 293. This disseisee had not made “continual claim” in the six years before disseisor died.

48 Curia Regis Rolls, XVII, nos. 148, 263. It is possible that similar reasoning lay behind the other common event which “tolled” a right of entry, namely a “discontinuance”. At common law if tenant in tail or husband seised in right of his wife or abbot seised in right of his house made a grant not expressly limited to his own life, the person next entitled could do nothing until the grantor died; and then he could not enter but must bring formedon or writ of entry. At any rate in the usual case in which the discontinuing grant purported to be in fee simple, the grantee would by Quia emptores immediately (and rightly so long as the grantor lived) become as much tenant of the grantor's lord as if he had come in by inheritance.

49 E.g. YB 20 & 21 Edw. I (R.S.), 80-82 (elder son trying to undo father's se demisit to younger son); ibid., 112.

50 This probably flowed from the institution of novel disseisin itself, creating a need for changes of holding to be known to men of the countryside and not just to peers of the fee. Symbolic livery, often in the lord's court, seems previously to have been common and perhaps general, Thorne, S.E., “Livery of Seisin” (1936 Law Quarterly Review), Essays in English Legal History (London & Ronceverte 1985), 31–50Google Scholar.

51 YB 20 & 21 Edw.I (R.S.), 8-10.

52 YB 33-35 Edw.I (R.S.), 52-54. Had the mother not died she could have recovered in novel disseisin. Had she not been disseised the plaintiff could have recovered as her heir in mort d’ancestor.