#1673 - Seisin - History of English Law

‘Seisin’ and ‘the right’

‘Seisin’: Definition contested. No definitive answer. Must see what best fits surviving evidence. More or less resembles Roman possession – a factual relation with a corporeal thing.

+ Williams (1910): ‘To be seised of a thing is to be possessed thereof, the word seisin meaning possession’.

‘Right’: More or less a claim to ownership. In the developed common law ‘the right’ (the claim to the right – writ of entry) resembled Roman dominium, the ultimate legal title above which there is no other (though in contrast to dominium ‘the right’ was always relative). It was a relationship between a person and a thing.

Debate: But did ‘seisin’ and ‘the right’ always mean these things?

+ Maitland: Yes. Thought (late 19^th c) they did not change definition. Felt that from beginning (once land could be subinfeudated) Ts had a right in rem, and Ls had a proprietary right to services and a future right of enjoyment of the land if the tenancy terminates. So Maitland said there was a concept very like ownership from early on as Ts could exercise their right against their lord and third parties. Says seisin is possession – ‘cardinal’ in our law.

In Maitland’s view, if his seisin was challenged by a 3^rd party, D would be asserting a horizontal, abstract entitlement. L is only relevant as the dispute may end up in his court. This is about abstract ownership.

+ Milsom: No. Seisin, he argues, began not as a relationship between a person and a thing (it was not a possessory relationship between a person and their land), but as a relationship between two persons about a thing – a relationship between the lord and T about the land. Essentially it was just a contractual relationship which did not relate to the outside world. If the relationship broke down T could do nothing in relation to the land. The was a different understanding of T’s right to property. Argues that it is only when the common law intervened and created the real actions that T had an enforceable right in rem.

One had to say ‘I am seised of Blackacre by X’. The lord seises the T of the land, so seisin is a contractual relationship between lord and T – lord accepts the tenant. He argues seisin cannot exist in the abstract; it requires a lord who can confirm it. The lord accepts T as tenant of the land and T homages.

A claim ‘to the right’ would not be a claim to ownership; it would be a claim against the lord that the lord is obliged to seise the tenant of Blackacre. It is to claim the benefit of obligation binding the lord.

Milsom’s view is vertical. D is claiming the benefit of an obligation by the lord – the lord must recognise me, D, not T, as your tenant. T will make an opposing claim upwards (vertically) against L. Both are claiming the lord should accept them as the tenant. ‘Tenure is the crux’; the lord is intimately involved and not merely somebody with jurisdiction over land disputes. Double booked theatre ticket is Milsom’s analogy; same tickets, there has been a mistake, same seats sold twice. Each make a claim against the manager (L).

Controversy: Milsom thought Maitland was thinking in horizontal terms because he had been reading the treaties in Bracton, which were familiar with Roman concepts, thereby assuming the abstract concepts of ownership and possession could be applicable to the common law in the century after the Conquest. Milsom argues this view is too advanced and out of context in the early common law – the common law was not advanced enough to include Roman Law. He believes Maitland was misled.

+ Hudson: Middle of the road view. Believes that Ts did not have a fully realised right in rem before the common law actions. However, the relationship was not fully contractual because, because Henry II’s reign, examples can be found where the king intervened for ecclesiastical Ts who had charters. Sees Henry II’s changes as part of a gradual development. Did not just come from nowehere.

+ Baker: Recognises the role of local custom as binding the lord to act in a particular way, even if it went against his ‘contract’ with T. Sees the Henry II innovations as a stark change from the earlier situation.

Seisin - ‘The Feudal State in Miniature’

+ Milsom: Central to Milsom’s view is the concept of the manor or the honour as originally a feudal state in miniature, free from outside intervention – derived from Stenton. Stenton refers to an agreement made in the middle of the 12^th c. made between two Lincolnshire barons in the present of their lord – saw lord...