a penny in earnest (en arras), and it sets forth that cesty A. luy bailla un denier en arras, et del denier il fuit seisie1.

The appearance of such phrases in a book of precedents is strong evidence that they were at least permissible, but I am not sure that it is stronger evidence than that afforded by the Year Books. It should not be forgotten that some of the instances above cited come from a time when pleadings were jealously scanned, in the hope that some verbal flaw might be detected in them; but though it is easy to find examples of objections, and successful objections, which seem to us very captious and unreasonable, I have not met with any instance in which exception is taken to the use of this word seised in connection with chattels, personal or real.

Now, however, we must cite the decisive passage in Littleton's Tenures (sec. 324), which proclaims once and for all that the differentiation between seisin and possession has taken place:

'Also, when a man [in pleading 2] will show a feoffment made to him, or a gift in tail, or a lease for life of any lands or tenements, then he shall say, by force of which feoffment, gift, or lease, he was seised, &c., but where one will plead a lease or grant made to him of a chattel, real or personal, then he shall say, by force of which he was possessed, &c.'

Littleton, it is supposed, wrote between 1474 and 1481. We have brought down our series of counts in replevin containing the words uncore seisi to 1426. The series containing uncore detient begins in 1443. Of course very little stress should be laid on these dates, for many cases may have been overlooked, and it would be easy to draw false inferences from the casual use of a phrase. Still the evidence tends to show that there had been a change in the terms used in pleading, just long enough before Littleton's day to make his express statement intelligible.

We have not yet spoken of chattels real, and will in this instance reverse our procedure and work from the latest authority to the earlier. And here the first witness to be called is Littleton himself, for he says (sec. 567), Also if a man letteth tenements for term of years by force of which lease the lessee is seised,' thus himself using the very phrase that he has condemned as incorrect. We shall easily pardon this slip if we look to the older authorities, for at worst it was an archaism.

What we should expect in such a context of course is by force of which he is possessed,' or, in the orthodox law Latin, virtute cujus possessionatus est.' Just about Littleton's time we find this phrase in the Year Books.

1 Fol. 68.

2 The words in brackets are in some very old editions.

Mich., 21 Edwd. IV, fol. 10, pl. 1. Par force de quel il fuit possesse. But some seventy years earlier the other phrase

occurs;

Pasch., 1 Hen. V, fol. 3, pl. 3. Count in Ejectione firmae: lease for twenty years, par force de quel il fuit seisie.

In the earlier Year Books there are very few instances in which a leaseholder pleads his title; but, skipping a century, we have Mich., 6 Edwd. II, fol. 177. Count in Quare ejecit: lease for

ten years, par quel lese A. fuist seisi.

Mich., 3 Edwd. II, fol. 49. Count in Covenant by lessee; lease for 10 years to A., par quel lees il fuist seisi ii aunz.

Instances from the reign of Edward the First are still plainer:32 & 33 Edwd. I, p. 529. Covenant; count by a lessee on a lease for five years of the provostship of Derby; the count, as enrolled in Latin, states that the lessees were seisiti. 30 & 31 Edwd. I, p. 142. Covenant; count that J. leased the land to Roger for eight years par quel lees il fut seisy for a certain time, and that then Roger leased to Robert par queuz lees il fut seisy for four weeks.

21 & 22 Edwd. I, p. 23. Count in covenant by lessee of a rent; lease for ten years par queu les yl fut seysy de cele par deus anz.

20 & 21 Edwd. I, p. 254. Covenant by lessee; defendant says that by virtue of a lease for twenty years the plaintiff fut

sesy.

20 & 21 Edwd. I, p. 278.

Covenant by lessee's son; lease for twenty years to my father, par quel les yl fut seysy un an. It will occur to the reader, that the value of this evidence depends on the comparative frequency of the words seised and possessed in counts by leaseholders; I must say therefore, that while I can produce, from the Year Books of the two first Edwards, seven examples of pleadings which describe the termor as seised, I have not found one in which he pleads that he is possessed. Certainly, my investigations have been far from exhaustive, and have consisted rather in following the references given in indices and abridgements under hopeful headings, than in fairly reading from cover to cover, but unless, round about the year 1300, it was strictly and technically correct to plead that a termor is seised by force of his lease, I have had a very strange run of bad luck.

Lastly, we may again refer to the Novae Narrationes and there find several precedents of Covenant, Quare ejecit, and Ejectione firmae, in which the termors are made to say that they are seised. Thus, Hubert Mappe leased a messuage to Adam Pye for a term of years not yet ended, per qui le dit Adam fuit seisy del mees avaundit.

On the other hand, in one of the precedents the termor is said to have been in peaceable possession. It is noticeable that this is a precedent in Ejectione firmae, a specialised form of trespass vi et armis, and a newer remedy for the termor than the Quare ejecit, or the still older writ of covenant. This would lead us to believe that it did not become definitely wrong to speak of the termor as seised until after the end of the fourteenth century, and we have seen one precedent which contains the objectionable phrase in the Year Book of 1413.

Here again, then, our evidence points to the fifteenth century as the time when the distinction was first firmly established. But probably the differentiation was a gradual process. At first possessio and seisina are the same thing. Take two very old maxims with which all lawyers are still well acquainted. If we ask why possessio fratris de feodo simplici facit sororem esse haeredem, the answer is because seisina facit stipitem. But gradually, as it seems to me, the words become appropriated, and the lawyers in the Year Books, though, in pleading, they will speak of a man as seised of chattels, begin to talk of possession directly they begin to argue. It looks as if seised was becoming an antiquated word to use of chattels, a word which one might still have to use in formal pleading, but one which struck the ear as antiquated, or, perhaps, even incorrect. But what flaw could be seen in it? The answer will probably be found in the curious history of leaseholds, for the beginning of which we may look in Bracton's book.

Now Bracton, as already said, has to mention possessio and seisina a very large number of times, and always treats them as interchangeable; as Dr. Güterbock has well said', beide Worte werden promiscue gebraucht. His definition of possessio is founded on the Roman authorities, but is taken directly from the Italian lawyer Azo. Possessio est corporalis rei detentio, i. e. corporis et animi cum juris adminiculo concurrente (fol. 38 b). Now, whatever Azo may have meant by this requirement of juris adminiculum (and he seems to have thought it necessary in order to include certain cases of constructive possession), seemingly Bracton meant no more than that there are certain persons and things, such as free men and things sacred, of which there can be no possession (fol. 44 b). In general, he remains quite faithful to the notion that seisin or possession is pure matter of fact, the detention by body and mind of a corporeal thing. Nor is this mere Roman ornament, which can be stripped off without damage to the fabric of English law as reared by Bracton, for on this depends his whole learning about the scope

1 Henricus de Bracton, p. 59.

Lord

of that commonest of all actions the assize of novel disseisin. Mansfield's theory that seisin implies some act or concurrence on the lord's part most certainly is not Bracton's theory. Seisin with him is simply possession, and has little to do with homage or fealty 1.

It is, of course, possible that Bracton's very rational account of seisin is just a little too rational, but we have the clearest proof that it is not mere romance, and we may doubt whether on any other part of our law the Latin learning of the thirteenth century made so practical and so permanent an impression. We have, happily, now in print a considerable collection of assizes taken during that period, and they constantly put before us seisin as simply and merely possession, a matter of fact independent of feudal relationships and institutions. When the question is whether a certain person was seised, if there be any mention at all of homage or fealty, of suit or service (and such mention is comparatively rare), these matters are treated, not as constituting seisin, but as being evidence of seisin, evidence tending to prove that this man or that was really possessor. Roger Clifford, for example, in the 36th of Henry the Third, brings an assize of mort d'ancestor against his younger brother, Geoffrey. Geoffrey pleads a gift made to him by their father, John, in his lifetime. Roger replies that the gift is naught, because John never really gave up possession to Geoffrey. The words are remarkable: quia quamvis Johannes pater ipsorum terram illam ei [Galfrido] dedisset per cartam, nunquam se dimisit de terra illa corpore nec animo. Then the assize finds the facts at length, and, among them, that John went on doing suit for the land after the gift. This is put before the court, not as conclusive, but as one of many facts which prove that John never ceased to possess, though he went through the idle form of going off the land and sleeping somewhere else for a night. (Placit. Abbrev., p. 1282). This is a type of a considerable class of cases. Having no testamentary power, landowners will try both to give and to keep. The court deals with such cases in a most reasonable way; full statements of the relevant facts are obtained from the assize, and the decisions are really no more dictated by feudalism, in any sense of that hard-worked word, than are modern decisions about voluntary settlements. Doubtless, there was a constant tendency

1 See Butler's note to Co. Lit. 330 b. Dr. Heusler (Die Gewere, p. 441), whose work I had not seen when I wrote the above, says that Bracton's seisin is Besitz einfach und schlechtweg. This seems to me perfectly true. I am happy in being able to add that in the last number of this Review Mr. Robert Campbell (p. 186) and Mr. Justice Holmes (p. 168) have written what makes for the same end.

2 I have seen this case on the roll. It was heard by Bracton himself, and perhaps the romanesque tag (corpore nec animo) may come from him.

to make seisin a matter of forms and ceremonies, of sacramental acts with rod or twig or hasp of door. So long as possession has legal consequences some persons will always be trying to substitute mummery for the real thing. Of which goods and chattels, I, the the said T. A., have put the said F. C. in full possession by delivering to him one chair;' the date of this formula is not 1268 but 18681. But the thirteenth century decisions on the question, seised or not seised, show a remarkable disregard for formalities, a remarkable determination to make that seisin which the law protects just a real and actual possession.

But this by the way; Bracton, though he does not distinguish between seisin and possession, has another distinction which is noteworthy. He repeatedly distinguishes between being in seisin and being seised, between being in possession and possessing. One who possesses or is seised has, if ejected, the assize of novel disseisin, but a person may be in seisin or possession nomine alieno, and if he be ejected the possessory remedy belongs not to him, but to that other on whose behalf he was in possession. Thus, in one place he turns our modern terminology just upside down; the farmer is in seisin, but he does not possess (fol. 165); quia longe aliud est esse in seisina, quam seisitus esse, sicut longe aliud est esse in possessione quam possidere2 (fol. 206). In the view that he generally takes the termor does not really possess, he only holds possession for his landlord, and this is the reason why he has not the possessory remedy, the assize of novel disseisin.

We are familiar with the saying that, of old, the termor was little more than his landlord's servant or bailiff. Now, it is a very natural thing indeed to say that a servant does not possess his master's lands or goods, though he has sole charge of them. Mr. Justice Holmes, in his lecture on possession, has well remarked how freehanded our old law was of its possessory remedies, how it attributed possession of goods to bailees whom the civilians would not have accounted possessors; still it drew the line above the servant who, in his master's house, has custody of his master's goods. Now, in Bracton's opinion, the termor is denied the assize, not because he has a less estate than becomes a free man (is there really any record of a free man saying that a term of years was beneath his dignity?), but because tenet nomine alieno; in this he resembles the custos, procurator, usurarius, hospes, servus (fol. 165, 167 b, 168, 206).

Bracton's adoption of this phraseology prepared a difficulty for

1 L. R., 9 Eq. 511.

2 Aliud est enim possidere, longe aliud in possessione esse. Ulpian, Dig. de acquir. vel amitt. possess. (41. 2) 10.