The Cornell Law Quarterly Volume IV APRIL, 1919 Number 1. ,2 ARY Seisin FRANCIS M. FINCH1 During the darkness and confusion of two centuries, from the coming of Duke William to the reign of the first Edward, there is prevalent one legal idea which seems to permeate everything and dominate the whole field of right and remedy. About it cluster a very large part of the medieval rules and customs, and a study of it may serve as a guiding thread through a labyrinth in which everybody loses his way, and no two scholars agree upon the true direction. That legal idea is the large conclusiveness of actual and open and obvious possession as the evidence of ownership and the occasion of remedies, but taking a peculiar form and becoming what the English law knew as the doctrine of seisin. The word has been derived from two different sources, and has taken color from its derivation. It approaches so nearly to our words "seize" and "seizure" as to indicate a violent or forcible occupation of land; but that meaning is quite too narrow, for much the most common use of the word describes a possession taken peaceably and lawfully and with the consent of the parties engaged in the transfer. The better derivation is from sedeo or sedes. The occupant sits down upon the land; comes to stay. We express the same idea when we speak of the "seat" of war, or describe a legislator as "seated" or "unseated," or buy a "seat" in a stock exchange. The underlying thought is one of possession, of occupation more or less permanent, and arrogating to itself some real or pretended right. We are struck in almost every age and in every historic field with the prominence and wide sway of a rule which invariably requires as the foundation of all efficient rights some open and obvious public act, 1. Judge of the New York Court of Appeals from 1880 to 1896, and Dean of the Cornell College of Law from 1891 to 1903. This was one of a series of lectures delivered by Judge Finch under the title "The History and Evolution of the Law". Since Judge Finch's death many of the alumni have suggested that these lectures be printed. The present article, which has been selected for publication at this time, is typical of the series. I some visible and suggestive ceremony which the transaction witnesses can see, which they can accurately and readily remember, and which supplies the want of records and of writings. It was a rule of necessity. Ancient law was largely unequal to abstractions and saw everything in the concrete. The idea of ownership came slowly and late, for it was an impalpable thought, a purely mental product, which had to wait for its creator. The older ages at times and on occasion dimly realized it, but we find no clear conception of absolute ownership in the period with which we are now busy. The extreme conception seems to have been of a right good till a better one appears, but never wholly excluding such last possibility. We shall see most easily the nature of this right, and its dependence upon the fact described as seisin, if we watch in Anglo-Norman times the process by which land was transferred. Let us take the simple case of the transfer of an estate of freehold which was always a fee or a life estate, and not a term of years or at the will of the lord. We know that the old Germanic way required the parties with their witnesses to go upon the land itself, that the donor cut a sod or twig and handed it to the donee, saying that he thereby gave him the land. The knife used would be preserved with its point broken or blade twisted or words engraved on the haft as a material evidence of the transaction. Pollock and Maitland tell us, that at an earlier date the donor on the land took off his war-glove or gauntlet, and gave it to the donee who drew it on, and with it took the sod or twig, perhaps the "festuca," the symbol rod, and thus obtained investiture of the land; the word meaning that he was clothed with the power of maintaining by battle a defense of his possession. Often the donor was required to depart from the land at once, making some gesture of renunciation, and leaving the donee in evident and plain possession. The method admitted of less decisive acts in process of time because of some troublesome necessities. Land given for the use of a church was often given to the saint whose shrine it held. The dead martyr or devotee was the expressed donee, and it was not quite easy for him to go in his bones to the land, though the consecrated relics were sometimes carried thither. In such cases there was often a symbolic investiture. The twig or sod was laid upon the altar, the rod passed to the abbot, and the whole affair was completed in the church. The Roman system in time depended more upon a written charter or grant, but that had to be formally delivered to the donee. Even now it is not the mere execution of the deed which passes the title but its actual delivery, and we continue to talk about "vested" estates, often unconscious that the word came down from the old form of investiture which clothed the donee's hand with the war-glove for his defense. But in England the ancient habit strongly prevailed through the tenth and eleventh centuries, and took the form of livery of seisin. While it is true that there seem to have been occasions when the transfer was away from the land and more or less symbolic, yet in the Norman period and under the ruling of the king's court an actual and formal delivery of possession became indispensable; and this was necessary in order to fit in with the judgment of the recognitors. These were the twelve men of the vicinage, chosen for their probable knowledge of the facts, and expected to give a true verdict upon them, and for this medieval jury there was no means of knowledge unless there were visible acts. And so in the transfer of land livery of seisin and its open and obvious ceremonies became the one essential element. How it has clung to the disposition of real estate even in its rude and barbaric form is shown in some recently unearthed Connecticut records in which land was said to have been acquired and transferred "by Turf and Twig," and in the survival in our practice of the possessory action of ejectment and of the rules which yet attend seisin in law and seisin in deed. Obviously, in times when land was generally transferred without a writing, some public and visible change of possession was the only possible evidence and the one decisive fact. And so it is not strange that livery of seisin became firmly imbedded in the English doctrine, and even though it grew to be needless was not abolished until 1845. But this seisin, so necessary and important, had to be in some manner protected; for behold the sweeping consequence of a disseisin. Bracton and the court-rolls tell us that the disseisor,-the man who ejects the occupant and gains possession,-gets almost everything from his successful force. He becomes seized in fee. He has the jus disponendi, and may sell the land or devise or lease it. It will descend to his heir, it may escheat to his lord, it may be taken on execution for his debt. His wife will have dower in it, and if his possession is disturbed he may have a remedy by action or entry. On the other hand the disseised owner, the person put out of possession, not only loses the power of present enjoyment but has left only a right of action, and that, in Bracton's time, was neither assignable nor devisable, and would not descend, for it had become a mere chose in action. Surely the intruder into the land has become practically owner, and possession is very close to ownership. The tenant disseised had a remedy by the writ of right which in the end determined who should lawfully possess, but this action was difficult and dilatory, and might end in battle. With its almost interminable essoins and the difficulty of proof it was a very inadequate remedy for the owner summarily dispossessed. He therefore was given the two writs of novel disseisin and mort d'ancestor which Pollock and Maitland, who never enlarge the debt of the common law to Rome, frankly concede were founded upon "the canonists actio spolii which itself had its origin in the Roman interdict Unde vi." These writs operated wholly upon the possession, and the judgment favored priority of seisin. The earlier seisin gave the better right, and the only questions asked or answered were, was the demandant in possession of the land and did the defendant disseise him? If the recognitors said yea the demandant was put in and the defendant put out. The latter might in truth be the real and honest owner but was not allowed to make that defense. Judge Holmes asserts the contrary, but his statement has been shown to be only true of a much later period. The possession as it stood must first be reinstated, and the disseisor ousted of possession must go to his writ of right, and leave his adversary choice of the assize or the battle. Seisin thus was a vital thing and vigorously protected. But the writ of novel disseisin might not always suffice. We have said that the heir of the disseisor would inherit. Suppose that he did. He had disseised nobody. He entered as of right and without wrong of his own. The novel disseisin would not touch him. There must be another writ to fit the emergency, and the King's Chancery could always frame one if paid for it; but that Chancery was merely the clerk of the growing morality. The facts made the writs and they grew, one after another, out of emergencies actually arising. Thus came the writ of entry sur disseisin. This was the first of an active group of writs depending upon an entry by the claimant. There were some curious and some complicated rules about that entry, especially when and how it could be tolled or barred. The claimant had to go upon the land and assert his right. If there was a house upon it he had to go to the front door. A claim at the back door would not suffice. It made no difference whether the disseisor was present or not. If the latter barred the claimant's path, obstructed his entrance, put him in danger of life or limb, he could stand outside in view of the land and make an effective claim there. Apparently, the process was a collision of two seisins, and on the issue of the writ it was determined which of the two had a priority and so which had the better right. It charged the heir with an entry under a disseisin, and that heir could not go back of his entry. Did your ancestor diseisse the complainant and did you enter as heir under that disseisor? If yea, leave the premises. There is no other question. And so seisin will be upheld even as against the heir of the disseisor coming in by inheritance and guiltless of any personal wrong. But observe the principle of this writ and how certain it was to breed a |