By the feudal law failure of the tenant to perform the services results in a forfeiture of the land; but only after the tenant has been adequately warned and after judgment of the lord's court. If the tenant be summoned three times without responding, the feudal law enables the court to put the lord into possession for a year. Should the tenant redeem within the year, possession is restored to him; but should he not redeem, he loses the land.1 Forfeiture may also be enforced by writ of cessavit per biennium, introduced by statute in the reign of Edward I. If the tenant fail to perform his services or pay his rent for two years, and if there be insufficient chattels for a distraint, the lord may obtain a writ of cessavit out of chancery. This writ enables the lord, if the tenant still fail to redeem by tendering his arrears and damages before judgment, to recover the land or fee itself in demesne. The land thus adjudged to the lord is forfeited for ever, for the tenant has now no right to redeem.2

What practically amounts to forfeiture is also found in the Kentish custom of gavelet. If the tenant of land held in gavelkind falls into arrears with his services and rents, the lord is to get permission of his own Three-Weeks-Court to distrain the chattels of his tenant found upon the tenement; and the lord in thus seeking to distrain is to be accompanied by good witnesses. This attempt to distrain is to be continued for four sessions of this court of the lord, and if before the fourth court sufficient chattels cannot be found, the court then awards that the lord may take the tenement into his hands en noun de destresse ausi cum boef ou vache. The lord may keep the land in his hands a year and a day, but without fertilizing it; and within. this period the tenant may, if he pay his arrears and make reasonable amends for the withholding, enter once more into his land. If, however, the tenant do not thus redeem, the lord may then make all the proceedings public at the next county court, and in the session of his own court following this public declaration it is finally awarded that the lord may enter into the tenement and

1 See 2 Chron. Abingd. 128; Wright, Tenures 197-199; Gilbert, Rents 3, 4; Robinson, Gavelkind 195; 2 Reeves, Hist. Eng. Law 186; 1 Pollock and Maitland, Hist. Eng. Law 354. See also Placita Ang.-Norm. 97.

2 See Stat. Glouc., 6 Ed. I. c. 4; Stat. West. II, 13 Ed. I., c. 21; F. N. B. f. 208 H, 209, 210 A.; Coke, 2 Inst. 295, 400, 460; 3 Blackstone c. 15, § I; Co. Lit. 47a, n. 4; Co. Lit. 142a, n. 2; Co. Lit. 143b, n. 5; Booth, Real Actions 133-135; Wright, Tenures 202; Robinson, Gavelkind 193-195; 1 Pollock and Maitland, Hist. Eng. Law 353.

cultivate it, taking the profits as in his own demesne (si come en son demeyne).1

If now the tenant comes after this award of the lord's court and wants to get back the tenement, thus treating the whole transaction as in effect a mere pledge quousque, he is obliged, before this can be done, to perform the services and pay the rent, and must in addition make proper amends to the lord for the withholding of the services or rent.2

The copies of the custumal differ, however, as to just what amends the tenant must make, a good deal depending apparently upon an old Kentish by-word printed in the custumal; and owing, it would seem, to this uncertainty as to the proper reading of this byword, it has always been a mooted question whether the Kentish gavelet was intended as a continuing security, with a right of redemption even after adjudication to the lord, or whether there was an absolute forfeiture. According to the generally accepted reading of the by-word, the tenant seems to have a theoretical right to redeem by paying the arrears nine- or eighteen?-times over, and in addition a wergild of £5. As legal scholars have pointed out, this is practically an impossible condition, and there is in reality a forfeiture of the tenement, though the ancient law in its forbearance is loath to say so.3

Our sources leave us in no doubt, however, that in London the medieval procedure by gavelet may result in absolute forfeiture. According to the Statute of Gavelet, usually attributed to the tenth year of Edward II.'s reign, if the rents be in arrear, the lord shall first distrain all the chattels on the land, and then, if these be insufficient, he may begin proceedings in gavelet by a writ de consuetudinibus et servitiis. If the tenant deny the fact that he owes services or rents, the lord must then prove in court by witnesses that he is seised of the services or rents now in arrear; and if this be proved, the lord shall then recover his tenement in demesne by

1 Consuetudines Cantiae, 1 Statutes of the Realm 224a, 225; Lambarde, Perambulation of Kent 498, 499, 526–528; 2 Reeves, Hist. Eng. Law 186, 187; Robinson, Gavelkind 195, 196. Compare Co. Lit. 142a, n. 2.

2 Consuetudines Cantiae, 1 Statutes of the Realm 225; Lambarde, Perambulation 528; Robinson, Gavelkind 196.

3 For details as to this question see De Wandlesworth's Case, reported in Robinson, Gavelkind 197; 1 Statutes of the Realm 225, n. 1; Lambarde, Perambulation 449; Robinson, Gavelkind 196-202; I Pollock and Maitland, Hist. Eng. Law 355, n. I. Compare 2 idem 591-593.

• Statutum de Gaveleto in London, 1 Statutes of the Realm 222; Robinson, Gavelkind 194; Co. Lit. 142a, n. 2; 2 Reeves, Hist. Eng. Law 186, 187.

judgment of court. If, however, the tenant acknowledge the services or rents and the arrears, then by judgment of court the arrears shall be doubled, and the tenant must also pay a fine to the sheriff for the wrongful withholding of the rents. If the tenant do not come, after due summons, to render the doubled arrears and to pay the fine, either because he is unwilling or unable to make satisfaction, the land shall be delivered to the lord by the court to be kept in his hands for a year and a day. Within this period the tenant may redeem his land by rendering the doubled arrears and paying the fine. But if he fail thus to redeem within the year and day, the land shall then by judgment of court be forfeited to the lord for good and all. The land shall then be called forschoke, because, for default in the services, it shall remain to the lord for ever in demesne.1

The common law will not allow forfeiture of the land for default of the tenant in performing his services or paying his rent; to effect a forfeiture it is necessary to introduce from the Roman system the writ of cessavit per biennium, which we have just adverted to. All that the king's court in the days of Glanvill and Bracton will permit is a simplex namium of the land. The lord must first distrain the chattels of the tenant; and only after this has been done may the lord get a judgment from his seignorial court permitting him to distrain the tenant by his land. By virtue of this judgment the lord is able to seize the land and to hold it as a simplex namium, as a means, that is, of compelling the tenant to render the arrears. The lord cannot obtain the land as a forfeiture, and he has even no right to take the profits. The tenant retains his right to redeem; and whenever he is willing and able to satisfy the claim of the lord, the lord must give back the land.2

In the law set forth by Littleton and Coke it is sometimes possible for the one entitled to rent to satisfy his claim out of the profits of the land thus, where a feoffment is made reserving a certain rent, upon the condition that, if the rent be in arrear, the feoffor or his heir may enter and hold the land until he be satisfied or paid

1 Cowel, Interpreter (1727), s. v. Foreschoke: "Foreschoke (Direlictum) signifies originally as much as forsaken in our modern language."

2 Glanvill, IX, 8; Bracton, f. 205b, 217, 218; Bracton's Note Book, pl. 2, 270, 348, 370; Wright, Tenures 199-201; Co. Lit. 142a, n. 2; 1 Pollock and Maitland, Hist. Eng. Law 352-355. Compare Gilbert, Rents 3, 4. It is true that feoffors and feoffees may expressly agree that, on default, the feoffor may by re-entry get back the land; but such agreements are, before the middle of the thirteenth century, very rare indeed. I Pollock and Maitland, Hist. Eng. Law 352.

the arrears. In this case, says Coke, "when the feoffor is satisfied either by perception of the profits or by payment or tender and refusal or partly by the one and partly by the other, the feoffee may re-enter into the land.” 1

The history of gages to secure loans where the debtor remains in possession of the gaged land until default, begins with the coming in of the Jews and of foreign merchants from Italy and other countries. In the centuries that immediately follow the Norman Conquest it is English policy to foster industry and commerce. Foreigners are induced to visit the realm, and it is sought to make up for deficiencies in English production by bringing in the goods of other countries. Systems of banking and insurance take root. In the interest of creditors new and more efficient processes of judicial execution are established. The Exchequer of the Jews is set up as a branch of the Great Exchequer. A system of registering debts owing to Jewish creditors and the gages that secure them is perfected, this system allowing a free buying and selling of Jewish obligations and efficient execution on default.2 The needs of other creditors are supplied by giving them, on judgments or enrolled recognizances of debt, new writs of execution in addition to the old common law writs of fieri facias and levari facias; these new writs enabling the creditor to reach the lands and chattels and body of the debtor. The writ of elegit is introduced by the Statute of Westminster the Second for creditors generally. Merchant creditors, if they get their debtors to make recognizances of debt before courts of record or certain public officials, may obtain, on the default of their debtors, even more effective remedy. Merchant creditors may reach, among other things, not only half the land, as under the Statute of Westminster the Second, but all the land of the debtor. These merchant securities are known as "statutes merchant" and "statutes staple," the former being introduced by the Statute of Acton Burnel and the Statute of Merchants in the reign of Edward I., the latter by the Statute of the Staple under Edward III. The advantages of the merchant securities are given to all creditors by the Statute 23 Henry VIII.,

1 Lit. § 327; Co. Lit. 202b, 203a. See Co. Lit. 205a, and marginal note (d).

2 See, further, 3 Hoveden 266, 267; Bracton, f. 13, 386b; 2 Blackstone, c. 20; Plowden, Usury 95-98; Horwood, Y. B. 32-33 Ed. I., pp. xii, xlii; Jacobs, Jews of Angevin England; Gross, Exch. of the Jews (printed in 1 Publications of AngloJewish Hist. Exhibition); I Pollock and Maitland, Hist. Eng. Law 468-475, 2 idem 123, 124; Rigg, Jewish Exch. (Seld. Soc.) ix-lxii; Exch. of the Jews, 18 L Quart. Rev. 305-309.

introducing the security known as a "recognizance in the nature of a statute staple." 1

A gage of land with possession of the debtor to secure money obligations is therefore rendered necessary and possible by this development of credit and of processes of judicial execution; and, very largely for the benefit of the mercantile classes, an hypothecation of land may now be created by judgment and by the registration or enrolment of contracts under seal. The publicity essential to this form of gage is thereby obtained; but it should be well observed that the new security breaks in upon the old law with its restraints on alienation and its requirement that livery of seisin is necessary to the conveyance of rights in land. The old feudal polity is attacked and attacked successfully by commercialism.

The gage of lands and tenements to Jewish creditors who do not take possession arises, then, on the registration of a written contract under seal before public officials at the Jewish Exchequer or in certain towns.2

3

To secure principal and interest the debtor may thus hypothecate certain specific lands; and lands of any tenure are chargeable until the year 1234, when the Crown's demesne estates held in socage or villeinage are exempted.

1 See, further, preambles to Stat. Act. Burnel, 11 Ed. I., and Stat. Merchant, 13 Ed. I.; Coke, 2 Inst. 677-680, 4 Inst. 237, 238; Bac. Abr. tit. Execution; Comyn, Digest, tit. Obligation (K); Wright, Tenures 170-171; 2 Blackstone, c. 10, § V, c. 20, § 2, 3 idem c. 26, § 5, 4 idem c. 33, § III; 2 Reeves, Hist. Eng. Law 71, 72, 276-279, 3 idem 289; Coote, Mortgage, 2 ed., 66; Rogers, Indus. and Com. Hist. Eng. (1892) 71, 72; Cunningham, Eng. Indus. and Com. during Early and Middle Ages, (1896) 222, n. 3, 281-283, 290, 316, 317 ; Cunningham and McArthur, Eng. Indus. Hist.; 2 Pollock and Maitland, Hist. Eng. Law 203, 204, 596, 597; Brodhurst, Merchants of the Staple, 17 L. Quart. Rev. 62-74; Carter, Eng. Legal Institutions (1902) 250-270.

The forms of gage described by Glanvill and Bracton seem to be, as we have already explained, securities with immediate possession of the creditor. For the view that the gage with possession of the debtor may be found in these writers, see, however, 2 Phillips, Eng. Reichs- und Rechtsgeschichte 239, 240; 2 Glasson, Histoire du droit et des institutions de l'Angleterre 313-316; Chaplin, Story of Mortgage Law, 4 HARV. L. REV. 6 et seq.

2 See on this system of archae and rotuli the authorities cited in n. 2, p. 43. supra. Compare Rigg, Jewish Exch. (Seld. Soc.), pp. xiii, xxxvii, 136 (s. v. stallare). On the enrolment of documents in the Great Exchequer see I Hall, Red Book of Exchequer, pp. xix-xxxv.

8 See Jacobs, Jews 57, 66, 67, 70-72, 99, 215, 216, 220, 221, 234; Jewish Exch. (Seld. Soc.) 45. On the gaging of rents and chirographs of debt see Jacobs 99; Jewish Exch. (Seld. Soc.) 28, 29, 33, 34, 43-45.

Rigg, Jewish Exch. (Seld. Soc.) p. xiii.