Page:The Green Bag (1889–1914), Volume 04.pdf/308

 Short Studies in the Early Common Law.

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SHORT STUDIES IN THE EARLY COMMON LAW. II. By William G. Hammond. RENTS-CHARGE. THE careful and experienced editor of the Rolls edition of Year Books was shocked a year or two ago to find one of the sages of the fourteenth century talking about the feoffment of rents. His frank account of the effect is worth quoting : — '.The idea which naturally presented itself at first was that the reading was wrong, and must be corrected. But the more the readings were at tacked, the more stubbornly they held their own; and in the end they assumed the aggressive, and carried the war into the whole field of incorporeal hereditaments." 1 Of course he soon found that this was by no means an isolated phenomenon; that rents had long been treated as capable of seisin and disseisin and entry, as subjects of all the assizes applicable to land, and that Bracton himself had talked of rents in demesne?- He found also that rents were not the only form of incorporeal hereditaments so treated; that commons and advowsons also were consid ered then in the same way, as subject to liv ery instead of grant, etc. His discoveries were stated and discussed in the very inter esting article on " Livery of Incorporeal Things," referred to in a preceding note. In concluding this, he mentions the wellknown ambiguity existing in all systems of law, between the terms that express rights and those designating the objects of rights, and appears to explain the difference be1 Livery of Incorporeal Hereditaments, by L. Owen Pike, Law Quart. Rev, v. 29-43, Jan., 1889; and see Introd. to Y. B. 14 Edw. III. p. xlvii (Rolls ed.). 2 Fo. 263 a, ed. Twiss, iv. 196. Perhaps few of the younger bar now attach a meaning to this word sufficiently definite to see how much more incongruous with the con ception of an incorporeal hereditament it was than even the others. But a glance at Blackstonc, 2 Comm. 106, will show it.

tween this earlv usage of seisin, etc., and ours by the want of any real distinction between corporeal and incorporeal hereditaments.1 Without risking a controversy on a point rather of metaphysics than of law, I venture to suggest that it is hardly needful to destroy a distinction which has rendered such good service alike in Roman and in English law to account for this change of usage. The possession or seisin of land has always been determined more by the fact of lawful control over it than by any mere evidential fact. If our ancestors uniformly spoke of it as vested in the lord or the chargee rather than in the tenant, and consistently allowed the former all the possessory and proprietary remedies, while we have grown to consider him a mere incumbrancer or even an obligee, it is much easier and simpler to accept the change of view as an historical fact, than to make it the basis for overthrowing a wellsettled classification. In this paper, therefore, first prepared to present some dissent from the current view of the mediaeval rents-charge, I have assumed that from the earliest time down to the four teenth century, if not later, when our ances tors used all the terms of land-ownership to describe the rights of the chargee, they really regarded him as in some sense own ing the land, or what would now be called the corporeal hereditament. To understand rents properly, we must remember that what we know to-day most commonly under the 1 " No one can really deliver to any one else a corpo real hereditament, any more than he can deliver an in corporeal hereditament. . . . But when the words arc carefully weighed, there does not appear to be any suffi cient reason why they [livery of seisin] should not be used in relation to one just as much as in relation to an other " (p. 43).