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The Law's Two BodiesSome Evidential Problems in English Legal History$

John Baker

Print publication date: 2001

Print ISBN-13: 9780199245185

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780199245185.001.0001

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(p.139) D. LINGUISTIC FICTIONS AND LEGAL PERSONALITY

(p.139) D. LINGUISTIC FICTIONS AND LEGAL PERSONALITY

Source:
The Law's Two Bodies
Publisher:
Oxford University Press

These examples are all drawn from readings, and therefore also illustrate the formulation of common learning in the inns of court.

1. Case at a reading in the Inner Temple (c.1490)

Brit. Lib. MS. Harley 1691, fo. 25v; 105 Selden Soc. 134.1

Effect of civil death on villeinage.

A villein enters into religion, and is then made abbot of the same place; then he brings an action in right of his house against the lord; may the lord disable him [i.e. plead villeinage]?

[The reader.] It seems that he may, for although the lord may not seize the abbot's person, because he has entered into religion, yet if he begins an action against his lord he may have his remedy and disable him; for though he is a monk he is still a villein …

Adgore to the contrary. I think that when someone demands anything in right of another, the defendant may not plead in disablement of his person, by pleading villeinage, outlawry, or other similar pleas, because he is not to recover the thing demanded to his own use …

Marow to the same intent. I think that when he is professed he is discharged for ever from villeinage, unless there is precontract or some such thing as nullifies the profession. Nor is the lord here put to any mischief, for he may have an action against the superior of the house and recover his damages. In my view there is a distinction between where a neif marries a free man and where a villein is professed; for in the case of the neif the villeinage is (p.140) only in suspense during the marriage, for a neif is able during the marriage to accept something to her advantage, whereas when my villein enters into religion he is a dead person in law and unable to take anything, whether to his advantage or not, in the way that the wife is. If a villein is professed and then degraded, the lord may not seize him, because he was once legally dead; but it is otherwise if he is deraigned,2 for the deraignment in effect disproves the profession. So long, however, as the profession is not disaffirmed, the lord may not seize him, because he was at one time legally dead. (Query whether the lord may seize him if he becomes apostate?) If, then, his villein status has been destroyed, the lord may not take advantage of anything arising from the villeinage; and so it seems that he shall not disable him.

Frowyk to the contrary. I think he shall disable him. It is not like the case of executors put by Adgore, because there (as has been said) they are not to recover to their own use but to the use of the testator … But it is otherwise in the case here, for when the abbot has recovered he may do with it what he pleases during his lifetime … There is a great difference between an abbot and an executor, for an abbot may forfeit the goods of the house by outlawry or other attainder, whereas an executor may not. And as soon as he is made abbot he is no longer legally dead, but is made an able person for every purpose. Also, if I shall not have this remedy now, I shall never have a remedy, for the remedy given to me is to have an action against his superior because he has accepted such a person, being my villein, as his monk; but I may not allege that here, because he himself is the superior, and I cannot complain that he himself has accepted himself. Now, I may no longer seize him, and therefore it is right that I shall disable him in an action. And, sir, an abbot or a bishop may be villeins—for example by confession in a court of record—and I may seize them as my villeins; but I may not force them to perform any villein services. If the parson is my villein and demands tithes from me, I may not deny them by reason of villeinage; but once they are in his possession I may seize them back …

(p.141) 2. Case at John Petit's reading in Gray's Inn (1518)

Brit. Lib. MS. Harley 5103, fo. 19.

Comparison of married women, monks and villeins.

A villein enters upon his lord and makes a feoffment: the feoffment is void, according to Petit, reader, because there is such a bond (liege) and privity between the lord and his villein that the villein cannot disseise his lord, any more than a man may disseise the king and make a feoffment …

Broke, serjeant, to the contrary. The lord and the villein are two distinct persons, and it is not like husband and wife; for the wife cannot disseise her husband and make a feoffment, as above. Nor can a monk disseise the abbot and make a feoffment, for he is a dead person in law. But a villein is the king's subject as well as his lord, and if the lord kills him it is murder in him and he shall be hanged. If the lord maims the villein, the villein shall not have an appeal of mayhem, for he would only recover damages and the lord might keep them; but he shall be indicted for it at the king's suit, because his maiming is a weakening of the kingdom. The lord and villein are two distinct persons; for the villein may rob his lord, whereas the wife cannot rob her husband, nor the monk his abbot, for there is such a privity between them; but there is not such between the lord and villein, for the villein may sue his lord and the lord may sue his villein (if he thinks it will be more advantageous to sue him than have him for his villein). And the king may sue one of his subjects well enough by quare impedit; but a man may not disseise the king, for the king is caput reipublicae 3 and can have nothing but by matter of record …

(p.142) 3. Case at John Spelman's reading in Gray's Inn (1519)

113 Selden Soc. 164.

Civil death.

Broke, serjeant. The sheriff may well take notice of a spiritual matter. For instance, he may return that an abbot has been deposed—which is a spiritual matter—since by this deprivation or deposal the party cannot have execution of his writ; for he cannot answer, since so long as he is a monk he is under the obedience of his superior and not under the obedience of the law. For felony or treason, however, a monk shall be considered under the obedience of the king and his laws, and shall be taken out of his cloister, and the abbot shall not punish it. An abbot, on the other hand, is under the obedience of the law for all purposes. But when he is deposed he shall be a monk, as he was before, and under the obedience of the superior, and so the sheriff cannot in any way warn him …

4. Case at Walter Hendley's reading in Gray's Inn (1530)

Brit. Lib. MS. Harley 5103, fo. 24.

Unity of person and the presumption of coercion.

A lease is made to a married woman for term of life, remainder to the person whom the wife shall assign4 and his heirs; and afterwards she makes assignment to her husband, and dies …

Molyneux. This remainder is void for uncertainty, for it does not appear to whom the wife will make the assignment … But admit [that it is not void for uncertainty], and then it seemed to him that the assignment is good. For even though husband and wife are but one person etc., yet in some respects they are distinct persons in law. For instance, in the case where a woman is made a justice of the peace, and such like …

Hales, the king's attorney … This assignment ought to be void for another reason, because during the coverture the wife lacks free will (caret libero arbitrio), for she is under her husband's (p.143) power (sub potestate viri) and amenable to his pleasure. Therefore the law implies that this assignment is made through the husband's compulsion, and is of no effect, for this assignment ought to pass freely from the wife, which cannot be presumed (for the aforesaid reason) any more than if it had been by implication in fact. Similarly, if someone in prison becomes bound to another, this bond is void, because at the time of the delivery [of the bond] it appears that the obligor lacked liberty. That is the reason why, if someone makes a married woman his executrix and devises that his executrix should sell his land, and she makes the sale to her husband, the sale is void. The reason is not because the husband and wife are but one person in law, as it seemed to him. In various cases the husband shall be punished for the wife's act. For example, in the case where the wife commits some battery, or takes goods, an action shall be maintained against them both because it is the husband's foolishness. So it is of all things which are redeemable. But it is otherwise of other things which are criminal, such as treason and felony committed by the wife …

5. Reading on Magna Carta, c. 1 (early 1530s)

Brit. Lib. MS. Harley 4990, ff. 146–8.

The state as a corporation.

… The common-wealth of every country consisteth and dependeth upon three things, upon the king, the law, and the people. Upon the king as the chief governor; and upon the law by the which the king doth govern; and upon the people which under the king by the law are ruled and governed. Which commonalty, being a body politic, may very fitly be compared unto the natural body of a man, that is to say, the king unto the head,5 the law unto the heart, and the people unto all the rest of the parts of the body. For, as the heart—which is called primum vivens, the first that liveth, and hath in it blood which it distributeth amongst all the other members of the body, whereby they are quickened and do live—even so in this body politic the law is primum vivens, the first living thing, having within it public provision for the wealth and profit of the people, which it imparteth as well to the (p.144) head as to the other members of the same body, whereby the whole body is nourished and maintained. And even [as] by sinews the body of man is joined and knit together, even so by the law —which taketh his name a ligando, that is, binding together—the common wealth, being a publique body, is tied and bound together …

Notes:

(1) More briefly reported in Port's notebook, 102 Selden Soc. 103.

(2) Deraignment was a nullification of profession, usually at the suit of a woman alleging a precontract of marriage.

(3) Head of the common-wealth: cf. below, p. 143, no. 5.

(4) i.e. appoint.

(5) Cf. the king as caput reipublicae, above, p. 141, no. 2.