Monday 2 March 2020

The Oldest Laws

The English legal system can credibly claim to have a continuity that is almost unsurpassed in the world. An actual 'start date' for it all is fiendishly difficult to pin down, but unlike many other legal systems, it has never had a reform so drastic that the established order was upended and many or all prior laws were invalidated.

Consequently, a small number of extant laws are of incredible vintage. The classic example of this is the Treason Act 1351 [1], which still today provides about three-quarters of the definition of High Treason in English Law.

But to find the truly oldest statute [2] we need to go back nearly a century further.

I apologise for the extraordinary depth of this article. Whilst it transpires the truly oldest English law is quite simple, the third and fourth oldest are laws of unusual and baffling complexity requiring fairly extensive explanations.

Disclaimer: I am not a lawyer (and certainly not a land lawyer) so a) don't rely on this article and b) if I have erred in something (quite likely) let me know and I will issue an erratum.

Second disclaimer: I am incapable of reliably spelling either subinfeudation or feoffee correctly; so, sorry. Those who know what is coming in the fourth statute in this article will already be shivering in terror...

As a bonus, at the end we will quickly cover the oldest extant Scottish and Irish laws.

(Yes the footnote numbering went wonky, I know...)

The Statute of Marlborough 1267

This isn't the oldest statute you will find in Statutes of the Realm [3]. That would be the repealed Provisions of Merton [4], which seemed to still be finding utility in the 16th century in litigation regarding enclosing commons, if this newsletter by the Merton Historical Society is anything to go by.

This is, however, the oldest extant statute. It is twelfth in Statutes of the Realm. Editorially today it appears on as two distinct 'Acts', viz. Statute of Marlborough 1267 [Waste] and Statute of Marlborough 1267 [Distress]

One assumes this division dates from the later editions of the Revised Statutes [4A] (I've only been able to check volume one of the first edition), but in any case it makes practical sense. At the time of Henry III a 'statute' was really a collection of disparate matters that were all treated of at the same council or assembly. The modern practice of first dating statutes by regnal year and chapter, and latterly calendar year and chapter, essentially derives from this.

The first of the two deals with restrictions on 'distress', i.e. the almost obsolete practice of taking distress for rent [5] [5A]. This comprises what were original chapters 1, 4 and 15 of the original Act, and provides [6]

I. Of wrongful Distresses, or Defiances of the King’s Courts. Punishment for unlawful Distresses. 
Whereas at the time of a Commotion late stirred up within this Realm, and also sithence [a], many great Men, and divers other, refusing to be justified [b] by the King and his Court, like as they ought and were wont in Time of the King’s noble Progenitors, and also in his Time; but took great Revenges and Distresses of their Neighbours, and of other, until they had Amends and Fines [c] at their own Pleasure; and further, some of them would not be justified by the King’s Officers, nor would suffer them to make Delivery of such Distresses as they had taken of their own Authority [d]; It is Provided, agreed, and granted, that all Persons, as well of high as of low Estate, shall receive Justice in the King’s Court; and none from henceforth shall take any such Revenge or Distress of his own Authority, without Award of our Court, though he have Damage or Injury, whereby he would have amends of his Neighbour either higher or lower. 
And upon the foresaid Article It is Provided and granted, that if any from henceforth take such Revenges of his own Authority, without Award of the King’s Court as before is said, and be convict thereof, he shall be punished by Fine, and that according to the Trespass; and likewise if one Neighbour take a Distress of another without Award of the King’s Court, whereby he hath Damage, he shall be punished in the same wise, and that after the Quantity of the Trespass; and nevertheless sufficient and full Amends shall be made to them that have sustained Loss by such Distresses.
[a] 'sithence', thereupon, since, subsequently.
[b] more in the sense of 'judged' than the modern meaning 
[c] at this time 'fines' were a great deal more voluntary than they subsequently became; compare with 'amerce' 
[d] i.e. they haven't co-operated with the King's courts who were trying to straighten things out 
IV. Distresses shall not be driven out of the County. Distresses shall be reasonable.
None from henceforth shall cause any Distress that he hath taken, to be driven out of the County where it was [taken] [e]; and if one Neighbour do so to another of his own Authority, and without Judgment [f], he shall make Fine [g], as above is said, as for a Thing done against the Peace; nevertheless, if the Lord Presume so to do against his Tenant, he shall be grievously punished by Amerciament. 
Moreover, Distresses shall be reasonable, and not too great; and he that taketh great and unreasonable Distresses, shall be grievously amerced for the Excess of such Distresses.
[e] sic. square brackets are in Statutes of the Realm 
[f] sic. Statutes of the Realm was either secretly American or ahead of its time 
[g] vide [c] supra 
XV. In what Places Distresses shall not be taken. 
It shall be lawful for no Man from henceforth, for any manner of cause, to take Distresses out of his Fee [h], nor in the King’s Highway, nor in the common Street, but only to the King or his Officers, [having special authority to do the same] [i]
[h] an estate in land, cf. estates in fee simple absolute, estates it fee tail; see also 'feu' &c. or keep reading this article until Quia Emptores
[i] sic. vide [e] supra 

The Law Commission (I lost the citation to it, but Google should have it somewhere) have noted that the Tribunals, Courts, and Enforcement Act 2007 have made parts of this obsolete. Specifically, chapter 15, which prohibits taking distresses away from a debtors place of business or residence is unnecessary because of the effective abolition of almost all forms of distress, and the prohibition of taking goods on the highway is essentially abolished by regulations made under the 2007 Act as well.

In addition, the same Act made almost all of chapter 4 otiose since the prohibition on taking goods 'out of the county' doesn't make a lot of sense where there are no longer jurisdictional issues between counties [7] and in any case the regulations require the goods so seized be stored within a reasonable distance.

However, they recommended keeping the final part of chapter 4 (that which provides someone who takes excessive distress will be 'amerced' [8] ) since at least two enactments still provide for a form of distress or a cognate proceeding: the Harbours, Docks, and Piers Clauses 1847 [9] and the Markets and Fairs Clauses Act 1847.

Chapter 1 is of arguably more general and less niche import, though. Although quite prolix, it does provide a legal basis for saying that it is not permitted for people to just 'take the law into their own hands' and to seize goods from other people without some sort of court process. In a way, it's an early example of the idea that due process is necessary before someone can be deprived of something.

One can perhaps see chapter 1 as a sort of legal backstop. While it would be highly unusual to see it pleaded today as a reason to obtain damages, it essentially means that were there to be a loophole or omission in the more modern approach, this can't be exploited by someone to obtain 'justice' outside of the courts of justice. The state, obviously, would be required by the Human Rights Act 1999 to behave; but unless a charge of theft or otherwise could be substantiated, this old enactment might prove necessary for an action between two private citizens.

What of the second part of the Statute? This is the 'waste' bit, at chapter 23

XXIII. Remedy against Accountants [a]. Farmers shall do no Waste. Remedy thereon.
Also Fermors [b], during their Terms [c], shall not make Waste, Sale, nor Exile of House, Woods, Men, nor of any Thing belonging to the Tenements that they have to ferm [d], without special Licence had by Writing of Covenant [e], making mention that they may do it; which thing if they do, and thereof be convict, they shall yield full Damage, and shall be punished by Amerciament [f] grievously
[a] that bit was repealed by the Statute Law Revision and Civil Procedure Act 1881 (44° & 45° Vict. cap. 59) and would have appeared immediately before the text here. [11]
[b] farmers
[c] term, i.e. time, of their lease or tenancy, not the specific terms of the covenant itself. 
[d] farm, vide [b]  
[e] cf. [c]
[f] cf. footnote [8] infra  

Waste, here, means managing, or mismanaging, or just plainly not managing one's farm which one leases in such a way as to ruin it and cause a loss of value. I was told a while back by someone who worries about these things for a day job that even today this isn't merely a theoretical issue in agricultural land law, albeit this particular enactment isn't used directly.

What this provision basically means is that tenant farmers are liable for any damages (i.e. losses) their landlord (or lessee, it doesn't really matter all that much) suffers as a result of their poor management of their farm. By virtue of the final sentence it seems to envisage a punishment above and beyond mere damages too, but I strongly suspect modern courts would see that as obsolete and at the very best a bad idea.

So, there we have it. If you're a farmer who somehow causes your leased lands to be unfarmable, or someone who wants to just seize goods without a court order, there is a seven-hundred and fifty-two year old statute stopping you. By way of comparison, the United States Constitution is only two-hundred and thirty-one years old; meaning the Statute of Marlborough is over three times older!

The Statute of Westminster 1275

No, no that Statute of Westminster. This one [12]. This is my favourite old statute for reasons that will readily become apparent. It is often called the 'First' Statute of Westminster. Not because of the one made six-hundred and fifty-six years later, but because of something else which we will come to shortly. Since I like to think of all Statutes of Westminster being created equal, mostly because I'm odd, I will not call it the first.

Like the Statute of Marlborough, this was a bit of an omnibus enactment containing such delights as regulation of what is and isn't wreck [13]; the selection of coroners [14]; something about stealing 'tame beasts' from parks [15]; and banning champerty [16]. However, chapter 5 [17] is still extant, and reads [18]
V. Freedom of Election
AND because Elections ought [a] to be free, the King commandeth upon great Forfeiture, that no Man by Force of Arms, nor by Malice, or menacing, shall disturb any to make free Election. 
[a] ought, in earlier English, really had a meaning more akin to must or shall 
In other words, the idea that elections should not be decided by violence or threats. Now, as it is trite to observe, English and later British elections would hardly meet the modern definition of free and fair for essentially the next six-hundred years. But this short sentence provided the basic underpinning for all the abortive, and later successful, attempts to provide for open and fair elections in Britain.

I'm not really persuaded it does anything now, but it is nice to leave it around as a reminder of the importance of at least the concept of democracy. This being essentially the second or third (depending on how you want to count it) oldest extant law in England and Wales.

De donis conditionalibus 1285

Let's start with the text of the extant part of the 'second' Statute of Westminster 1285 [19], with apologies for its impenetrable length

I. Several Sorts of Gifts of Lands upon Condition; In such Gifts the Donor’s Will shall be observed. Writs of Formedon in Descender. A Fine shall not bar the Heir in Tail. 
FIRST, Concerning Lands that many times are given upon Condition, that is to wit, Where any giveth his Land to any Man and his Wife, and to the Heirs begotten of the Bodies of the same Man and his Wife [a], with such Condition expressed that if the same Man and his Wife die without Heirs of their Bodies between them begotten, the Land so given shall revert to the Giver or his Heir: In case also where one giveth Lands in free Marriage, which Gift hath a Condition annexed, though it be not expressed in the Deed of Gift, which is this, That if the Husband and Wife die without Heir of their Bodies begotten, the Land so given shall revert to the Giver or his Heir: In case also where one giveth Land to another, and the Heirs of his Body issuing; it seemed very hard, and yet seemeth to the Givers and their Heirs, that their Will being expressed in the Gift, was not heretofore, nor yet is observed: in all the Cases aforesaid, after Issue begotten and born between them, to whom the Lands were given under such Condition, heretofore such Feoffees [b] had Power to aliene [c] the Land so given, and to disherit their Issue of the Land, contrary to the Minds of the Givers, and contrary to the Form expressed in the Gift: And further, when the Issue of such Feoffee is failing, the Land so given ought to return to the Giver, or his Heir, by Form of the Gift expressed in the Deed, though the Issue, if any were, had died: Yet by the Deed and Feoffment of them, to whom Land was so given upon Condition, the Donors have heretofore been barred of their Reversion [d], which was directly repugnant to the Form of the Gift: Wherefore our Lord the King, perceiving how necessary and expedient it should be to provide Remedy in the aforesaid Cases, hath ordained, That the Will of the Giver, according to the Form in the Deed of Gift manifestly expressed, shall be from henceforth observed; so that they to whom the Land was given under such Condition, shall have no Power to aliene [e] the Land so given, but that it shall remain unto the Issue of them to whom it was given after their Death, or [shall revert] [f] unto the Giver or his Heirs, if Issue fail whereas there is no Issue at all, or if any Issue be, and fail by Death, or Heir of the Body of such Issue failing. Neither shall the second Husband of any such Woman, from henceforth, have any thing in the Land so given upon Condition [g], after the Death of his Wife, by the Law of England, nor the Issue of the second Husband and Wife shall succeed in the Inheritance, but immediately after the Death of the Husband and Wife, to whom the Land was so given, it shall come to their Issue, or return unto the Giver, or his Heir, as before is said. . . .  [h] And it is to wit that this Statute shall hold place touching Alienation of Land contrary to the Form of the Gift hereafter to be made, and shall not extend to Gifts made before [i]. And if a Fine be levied hereafter upon such Lands, it shall be void in the Law; neither shall the Heirs, or such as the Reversion belongeth unto though they be of full Age, within England, and out of Prison, need to make their Claim. [j]
[a] this would appear to exclude illegitimate children, &c.
[b] the arcane term feoffee means one whom a freehold estate in land has been demised to; or something along those lines anyway.
[c] aliene = alienate, i.e. enfeoff (yes, I know I know) someone else into the same parcel of land
[d] this basically means that while if the estate had not been alienated and the donee's children all predeceased the donee, the estate would revert to the donor,  but having been alienated it will instead not so revert. [20]
[e] vide [c] 
[f] sic. as in Statutes of the Realm, but unlike last time we have a reason for them, viz. "Some words illegible on the Tower Roll are supplied from the entry of this Statute in fo. 260, etc. of Register A, in the Chapter House at Westminister, of which the Various Readings are also given. The words defective are distinguished by being included in brackets without any figure of reference."
[g] This excludes the following sequence of events (i.e. it provides for a reversion, not inheritance): a donor grants to a donee and his wife a parcel of land; the donee dies either sans issue or with issue who all predecease him; the wife remarries. By this provision, neither the wife's second husband, nor the issue of their marriage (nor if the wife should now predecease her second husband, his second wife...) have any interest in the estate [21]
[h] repealed by the Statute Law Revision Act 1887
[i] even mediæval jurists were uncomfortable with ex post facto laws! 
[j] I have not a clue what this final provision is angling at, and every text I've read on this enactment omits to discuss the final sentence.
I suspect my annotations have actually reduced everyone's understanding. So to explain this statute we are going to tell a story. Imagine a Lord Lewis [22]. He has a parcel of land, a farm perhaps. He decides to grant this farm — the freehold that is, not a lease — to a Mr. and Mrs. Jones, but he attaches a condition: the farm must descend to the Jones' children, and if the Jones' don't have children it will revert to his Lordship. If this condition is met, however, under the law at the time the estate would become fee simple absolute.

Mr. and Mrs. Jones are actually looking to make a quick buck, not provide for their children. So, on the birth of their child Master Charles Jones, they sell the farm (so here they are grantor) to someone else (the grantee). Before they had a child, this would have been impossible, but after by a legal fiction they can since the 'condition' is met [23].

The effect of the statute, which should now make at least some sense, is that this sort of schadenfreude is no longer possible: any attempt to defeat the donee's condition will fail. Although the Law of Property Act 1925 [24] abolished all the estates in land except for fee simple absolute and a lease for term of years in law; what is effectively fee tail could still be created in equity. Hence this statute survived. The Trusts of Land and Appointment of Trustees Act 1996 at paragraph 5 of Schedule 1 seems to have abolished the last remnants of this (and converted any attempt to do so into a 'conventional' trust [25]), but I can imagine there are all sorts of lurking oddities that mean keeping this venerable statute around is necessary.

I await the actual land lawyers to tell me I have this all backwards, because, to be very honest, mediæval land law makes even me question my own sanity at times!

However, after a two sentence diversion, this sets us up for some even more exciting mediæval land law...

Commons Act 1285

Another part of the 'second' Statute of Westminster survived until very recently, namely chapter 46. But since it was repealed by the Commons Act 2006, we will simply move on.

Quia Emptores 1290

For our final 'old law' (the next one would be the re-issue of Magna Carta so this feels like a good place to stop) we find some mediæval land law par excellence. This is the 'third' Statute of Westminster, the extant part of which is invariably known by its Latin incipit Quia Emptores [26] ('because the buyers'). Once again, let's start with the text.

I. Freeholders may sell their Lands; so that the Feoffee do hold of the Chief Lord.
FORASMUCH as Purchasers of Lands and Tenements of the Fees [a] of great men [b] and other Lords, have many times heretofore entered into their Fees, to the prejudice of the Lords, to whom the Freeholders of such great men have sold their Lands and Tenements to be holden in Fee of their Feoffors [c], and not of the Chief Lords of the Fees [d], whereby the same Chief Lords have many times lost their Escheats [e], Marriages [f], and Wardships [g] of Lands and Tenements belonging to their Fees; which thing seemed very hard and extream [h] unto those Lords and other great men, and moreover in this case manifest Disheritance: Our Lord the King, in his Parliament at Westminster after Easter, the eighteenth year of his Reign, that is to wit, in the Quinzime [i] of Saint John Baptist, at the instance of the great Men of the Realm, granted, provided, and ordained, That from henceforth it shall be lawful to every Freeman to sell at his own pleasure his Lands and Tenements, or part of them; so that the Feoffee shall hold the same Lands or Tenements of the Chief Lord of the same Fee, by such Service and Customs as his Feoffor held before.
[a] vide [h] in cap. XV of 20° Hen. III supra [27] 
[b] in a future blog, we're going to discuss the term 'great men' in a totally unrelated context
[c] scroll up a bit 
[d] this will become important in a moment, the 'Chief Lord' is essentially the superior landlord in a chain of landlords, lessees (or freeholders), sublessees (is that even a word?), and so on. [27A]
[e] reversion when an estate had no one to descend to, this concept still survives today, but the differences between bona vacantia, and property which escheats into Her Majesty's demesne as paramount Lord is, amazingly, outwith this blog
[f] not a clue, sorry
[g] important, this one: if a feofee died whilst their heir had not yet reached their majority, they would become a ward of the Chief Lord [28]
[h] archaic spelling of extreme, here it means something along the lines of 'excessive' 
[i] the fifteenth day after the festival, which I make to be the 9th July
II. Sale of Part. Apportionment of Services.
AND if he sell any part of such Lands or Tenements to any, the Feoffee shall immediately hold it of the Chief Lord, and shall be forthwith charged with the Services, for so much as pertaineth, or ought to pertain to the said Chief Lord for the same parcel, according to the Quantity of the Land or Tenement [so] sold: And so in this case the same part of the Service shall remain to the Lord, to be taken by the hands of the Feoffee, for the which he ought to be attendant and answerable to the same Chief Lord, according to the Quantity of the Land or Tenement sold, for the parcel of the Service so due.
III. Mortmain prohibited. [j]
. . . [k] And It is to wit, that this Statute extendeth but only to Lands holden in Fee Simple [l]; and that it extendeth to the time coming [m]; and it shall begin to take effect at the Feast of Saint Andrew the Apostle next coming [n]. [Given the eighteenth year of the Reign of King Edward, Son to King Henry.] [o]
[j] this marginal note is wrong; this section is really concerned with extent and commencement since the other part has been repealed.
[k] repealed by the Charities Act 1960; mortmain is something we will worry about another time 
[l] i.e. freeholds, and I suspect this meant it does not apply to fee tail lands (as to which, see de donis conditionalibus, supra
[m] i.e. forever 
[n]  30th November
[o] sic. brackets as in Statues of the Realm 
The Wikipedia article on this statute is very extensive, and I could never do justice to the whole thing here. So here is a very simple (and probably somewhat wonky) summary.

In the feudal system, land was granted by the King to Lords, who then regranted parcels to lower Lords, who may do likewise, and so on. A peculiarity of land law at the time was that leases were not inheritable, but that equally freeholds would come with duties (petty serjentry or socage) to the superior Lord. Over time, Lords realised that their tenants would look after land and buildings better with a guaranteed right of inheritance [29].

So, tenants were increasingly granted estates in fee simple as opposed to leases (we ignore entirely the type of estate called a copyhold, this is already complex enough). But one of the incidents of an estate in fee simple is that it is capable of subinfeudation; that is, the feoffee can themselves enfeoff persons into parcels of — or indeed the whole of — the land as their landlord (and likewise demand duties of them). These 'intermediary' landlords are termed mesne Lords, being landlords who have vassals but are themselves vassals.

The result: an impossibly confusing web of multiply subinfeudated land where not only was it unclear who owned what, it was equally unclear who owed what duties to whom. Or even what should happen (well it was sometimes clear; but not always) if a mesne Lord should forfeit or die intestate and thus their estate escheated. Isn't this verbiage wonderful?

Anyway, to sort this all out, and generally to check the growth of this 'middle class' of mesne Lords; the statute Quia Emptores was passed. Its effects are not immediately obvious from the text but they are profound. The key line, in my opinion, is
so that the Feoffee shall hold the same Lands or Tenements of the Chief Lord of the same Fee, by such Service and Customs as his Feoffor held before.

Remember in that note above I said the words 'Chief Lord' are important? Well this is why. That phrase means that yes, a landowner can sell portions of land, but they can't then interpose themselves as a mense Lord. Instead, they have to provide for the buyer to assume their position relative to their Lord, a process called substitution. With a stroke, this statute abolished (except for the Crown, which could still infeudate [29A] at will) the whole process of the feudal system.

This does still have a continuing effect today, in that it is this enactment which stops someone who owns an estate in fee simple absolute from purporting to demise a parcel of it to someone else as a fee simple whilst maintaining (things like restrictive covenants and so on aside) some rights to it themselves.

For completeness, section II simply extends section I, with the necessary pro rating of feudal duties, to substitutions of parcels of land rather than the whole thing. Section III since the mortmain bits have been repealed is of limited present day importance, except that it makes clear that this enactment does not apply to leases for terms of years — i.e. sub-leasing, the leasehold equivalent of subinfeudation, is still possible.

It is certainly possible to argue that Quia Emptores is the start of all modern land law — and it is generally acknowledged to be part of the common law of all US states with a small number of exceptions [30], too. Quite something for a seven-hundred and twenty-nine year old statute, who's initial purpose was to stop the feudal system getting out of control and put the small number of powerful lords back in the driving seat!

Scotland and Ireland

This will be brief, I promise.

The oldest Scottish statute, i.e. the oldest extant Act of the Old Scottish Parliament, seems to be the Royal Mines Act 1424 [31], which in the original language reads

Of mynis of golde and silver
Item gif ony myne of golde or siluer be fundyn in ony lordis landis of the realme and it may be prowyt that thre halfpennys of siluer may be fynit owt of the punde of leide The lordis of parliament consentis that sik myne be the kingis as is vsuale in vthir realmys
This provides for the Scottish equivalent of what in England were known as 'Mines Royal' [32]. That is, that all gold and silver in the ground, and the right to work it, belonged to the Crown. By this Act, gold and silver in Scotland became part of the inter regalia, the property inherently belonging to the Crown; where they remain to this day.

The oldest Irish statute, in the sense of the oldest Act of the Old Irish Parliament still in force in Northern Ireland [33] is one part of "Poyning's Law". Without getting too deeply into the thorny issues surrounding this, the part that remains is simply that which provides that the existing English statutes (including De donis conditionalibus and friends) extend to Ireland, viz.

An Act confirming all the Statutes made in England. 
Forasmuch as there been many and diverse good and profitable statutes late made within England by great labour, studie, and policie, as well in the time of our sovereign lord the King, as in the time of his full noble and royal progenitors, late Kings of England, by the advise of his and their discreet counsail, whereby the said realm is ordered and brought to great wealth and prosperity, and by all likelyhood so would this land, if the said estatutes were used and executed in the same:
Wherefore all estatutes, late made within England, concerning or belonging to the common and publique weal of the same, from henceforth be deemed good and effectuall in the law, and over that be acceptyd, used, and executed within Ireland in all points at all times requisite according to the tenor and effect of the same; and over that they and every of them be authorized, proved, and confirmed in Ireland. And if any estatute or estatutes have been made within this said land, hereafter to the contrary, they and every of them be adnulled, revoked, voyd, and of none effect in the law.

The only real necessity for this Act since the Acts of Union in 1800 is to preserve any residual effect in Northern Ireland [34] of statutes of the English, and later British, Parliaments. It has, for example, been repealed in the Republic of Ireland as being entirely unnecessary. But it remains the cause of some residual quirks of Northern Irish Law where the underlying "English" statute has been repealed in England.

End note

I hope this particular dive into four very old laws hasn't scared everyone away. Normally I write esoteric but simple things, but sometimes with the interesting comes the complex.

When the inevitable errata are added they will appear here :-)


The enactments quoted here are so clearly out of copyright — I mean they predate it as a modern concept by about four centuries — it would be farcical to say anything.

[1] 25° Edw. III Stat. 5 cap. 2, "A statute made at Westminster; In the Parliament holden in the Feast of Saint Hilary; In the Twenty-fifth Year of the Reign of King Edward the Third"; all parts of this except "Statute the Fifth" having long since been repealed. Interestingly the statute itself was amended very recently in 2013 by the Succession to the Crown Act!
[2] Some parts of the Common Law will predate even this, and obviously the original version of Magna Carta did.
[3] A wonderful series of volumes containing every English then British statute out to 1714, and every Private Act from 1514 onwards.
[4] I guess the citation would be something like 20° Hen. III for the whole thing. What became known as the Commons Act 1236 (and was the last surviving part until Statute Law Revision Act 1953 (2° Eliz. II cap. 5) repealed it) was usually cited as 20° Hen. III cap. 4. You'll find it on page 1 of volume 1 of Statutes of the Realm, unsurprisingly.
[4A] The Revised Statutes were a re-issue of Statutes of the Realm, updated to cover things after 1714, with amendments and repeals applied; later morphing into Statutes in Force, it is the spiritual predecessor of
[5] Although, as we shall see, neither totally obsolete, nor made obsolete all that long ago...
[5A] Distress is also known as distraint; they're identical concepts but I prefer distress
[6] This is the text from Statutes of the Realm, lovingly copy and pasted from because I'm lazy. If you want to read the original Latin, in record type, you can go there and have a nose, however. I've removed the footnotes about variant readings because even I often don't care about those, but have added footnotes explaining some fiddly words.
[7] This hasn't really been true for quite a while, and certainly not since the latter part of the 19th century.
[8] What that word means could be a blog of its own. Imagine it as a fine or damages for now.
[9] Section 44; 10° & 11° Vict. cap. 27
[10] Section 38; 10° & 11° Vict. cap. 14
[11] This originally provided that "It is provided also, That if Bailiffs, which ought to make account to their Lords, do withdraw themselves, and have no Lands nor Tenements whereby they may be distrained; then they shall be attached by their Bodies, so that the Sheriffs, in whose Bailiwick they he found, shall cause them to come to make their account.", see Statutes of the Realm, volume one, page twenty-four.
[12] Found at Statutes of the Realm, volume one, page 26. Amazingly, there are no repealed statutes intervening between it and the Statute of Marlborough eight years prior.
[13] 3° Edw. I cap. 4
[14] 3° Edw. I cap. 10; repealed as late as the Coroners Act 1887 (50° & 51° Vict. cap. 71)
[15] 3° Edw. I cap. 20; repealed by 7° & 8° Geo. IV cap. 27
[16] 3° Edw. I cap. 25; repealed by the Criminal Law Act 1967 which also abolished the offence altogether.
[17] 3° Edw. I cap. 5
[18] The marginal note, inserted here, in Statutes of the Realm is inexplicably missing on
[19] 13° Edw. I cap. 1; the remaining forty-nine chapters treat of such matters as wardship (cap. 16); conserving salmon (cap. 47) and that perennial nuisance, mortmain (cap. 32)
[20] Look, I'm trying to be as simple as possible here...
[21] I'm really trying....
[22] That's me pretending to be important!
[23] This is a gross oversimplification of an otherwise extraordinarily complex topic, and isn't quite right, but you get the gist.
[24] citation here please
[25] in so far as trusts ever make a lot of sense or seem to follow obvious conventions!
[26] 18° Edw. I cap. 1
[27] Yes, I enjoyed making this note as difficult to read as possible. Got to challenge the reader just a little bit!
[27A] It has been pointed out to me that Chief Lord here may actually mean those who were tenants of the King alone — the Latin has de capitali domino feodi; which may very well be related to the term tenere de capite. However, unless one reads it as applying to any superior landlord, the statute doesn't really seem to work in practice, in my highly not-a-lawyer opinion.
[28] Who could be the King, and the fees for redeeming such wardships were an esoteric yet important source of revenue at times
[29] This isn't to say that de facto inheritance didn't happen, just that it was not guaranteed — and although it required payment of money or goods, so could inheritance of a freehold so require. Indeed, at the time it was possible to add as an incident to an estate in fee simple requirements called socage which are not altogether dissimilar to a ground rent.
[29A] Explicitly not subinfeudate. The Crown's demesne is held (and continues to be held) by paramount right, consequently a grant from it is an infeudation, not a subinfeudation. It is this distinction that causes this Act to not bind the Crown. It also causes lasting subtleties with the way The Queen's Most Excellent Majesty demises land to this day.
[30] Pennsylvania springs to mind, where I think all titles are allodial; but let's not worry about adding yet another term to this already overlong article.
[31] I don't know how Scottish Acts are cited, but every printed edition I've seen says this is 1424 cap. 13, but note that one place has it as cap. 12.
[32] It was later established, although it had always been averred to be the case, in the 'Case of Mines', R. vs. Earl of Northumberland (75 ER 472) that in England all gold and silver mines belonged to the Crown by prerogative right; this was not true in Scotland hence an Act was needed to establish it.
[33] The situation in the Republic is left as an exercise for the reader.
[34] For example, there is a note on that Quia Emptores as presented there might not be in the form in which it has effect in Northern Ireland.

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