Document Type

Book Chapter

Publication Date

2019

Abstract

According to F. W. Maitland, ‘the treatment of seisin in our oldest common law must be understood if ever we are to use the vast store of valuable knowledge that lies buried in the plea rolls and the Year Books’. In The History of English Law, Maitland stated firmly that ‘Seisin is possession’, and that ‘When we say that seisin is possession, we use the latter term in the sense in which lawyers use it, a sense in which possession is quite distinct from, and may be sharply opposed to, proprietary right.’ He added that ‘The idea of seisin seems to be closely connected in our ancestors’ minds with the idea of enjoyment. … Seisin of land … is not the enjoyment of the fruits of the earth; it is rather that state of things which in due time will render such an enjoyment possible.’ His discussion rests to a considerable degree on his reading of the thirteenth-century lawbook Bracton , which adopted a significantly Roman law framework, although Maitland did not simply accept Bracton’s views but questioned and modified them in various ways. Published three decades after Maitland’s History, Joüon des Longrais’s La Conception Anglaise de la Saisine du XIIe au XIVe Siècle also drew heavily on Bracton . However, his emphasis was upon seisin as enjoyment penetrated by right. This he saw as the old notion of seisin, which continued in England after the influence of Roman and canon law brought a sharper division between possession and property in France. For S. F. C. Milsom, such treatments were misconceived, in part because of the influence of Bracton and its Romanism. Rather, lordship was central to seisin, particularly until the late twelfth century: ‘seisin itself connotes not just factual possession but that seignorial acceptance which is all the title there can be’. This basic structure of feudal tenure left its mark even after Angevin reforms had diminished the importance of the seignorial dimension of landholding.

The purpose of the present paper is not to arbitrate between these positions, but to look more carefully at the language of the evidence upon which the arguments rest. It assesses use of the word ‘seisin’ in the sources of the nascent English common law, in the late twelfth and early thirteenth centuries. Normally the word was used with reference to a tenement, but it could also be used, for example, with reference to chattels. How far was ‘seisin’ a technical term with a defined meaning, how far did other usages continue? How far was ‘seisin’ a term employed with explicit association to a particular person or tenement, how far without such an explicit association, including as a more free-standing abstraction? How did it relate to ownership or right, how far did it involve an element of title, how far actual enjoyment of profits? I then move on to developments designed to refine the word’s technical meaning. First I consider Bracton’s distinction between being ‘in seisin’ and being ‘seised’. Next I examine statements as to what the person was seised of, for example free tenement or gage. Then I move on to the use of adjectives applied to seisin, for example ‘simple’ and ‘full’. Finally I turn to capacity to alienate and protection of tenure.

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Available from DOI: https://doi.org/10.1017/9781108672542.005

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