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only the chance of a gap existed because the future interest was so limited after a particular estate of freehold that it might take effect by way of succession or interruption the common law recognized it as valid, provided it took effect by way of succession. It was then valid but destructible. Thus it remained when limited by way of use or devise. In short, where the logical effect of the gap in the seisin was overcome by the common law itself, the Statutes of Uses and Wills did not change the rule regarding the validity of the future interest. When the common law was unable to save the gift at all, its limitation by way of use or devise made it not only valid, but indestructible.

Consistently with this course of treatment what results were to be obtained where a contingent interest after a term was involved ? It was familiar law that a non-contingent future interest after a term was valid where livery of seisin was made to the tenant for years?. To this extent there was a perceptible relaxation of the principle, that a gap in the seisin would invalidate the future interest. There was a further relaxation where a future interest after a term subject to a condition precedent in fact was held valid provided it was bound to take effect, if at all, by way of succession. This was true not only where the condition precedent in fact was expressed as subsequent in form, but in one case at least, when it was expressed as in form precedent? These relaxations were, in

?. their way, while they did not go so far, not unlike the rule which allows the contingent interest after a freehold to be valid if it took effect in fact by way of succession. There was, therefore, this ground for drawing a distinction between a freehold in futuro unpreceded by any interest at all, and one where it was preceded by a term for years. In the former, the future interest was wholly invalid at common law because of the certainty of a gap in the seisin. In the latter, the common law devised means by somewhat artificial reasoning for overcoming the objection that there would gap

in the seisin. The reliance upon such a principle for continuing the common law or feudal restrictions on the creation of future interests was doubtless unprogressive, if not reactionary. But it is believed, it has not always been observed that the position of Holt and Powell, in Adams v. Savage, has as much in its favour as has here been indicated.

CONCLUSION. The principal objection to the usual classification of future interests is that it is not undertaken enough from the point of view of their validity, and that so far as it is, the discussion is a catalogue of cases, which have certain conventional or

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be a

1 Lit. sec. 60.

? Supra, pp. 256, 257.

historical names that have to be explained. The endeavour here has been to meet these objections by attempting to describe mutually exclusive classes of future interests in terms of the characteristics which furnish the reason for their being held valid or invalid by the common law. It is believed that no one will quarrel with the object of this task. The question will be : Has it been accomplished ? It is hoped that no departure from recognized results of the authorities has been indulged in. The whole question, then, is : Are the characteristics which have been selected for the description of the mutually exclusive classes of future interests the proper ones? Are they the essentials' or the accidentals'?

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ALBERT MARTIN KALES.

(To be continued.)

266

THE YEAR BOOKS.

I.

THE

HE Year Books are the Law Reports of the Middle Ages,

written by lawyers for lawyers. From the reign of Edward I to the reign of Richard III they stretch in a series which is almost continuous. In the reigns of Henry VII and VIII they become more and more intermittent; and the last printed Year Book is of the Trinity term 27 Henry VIII. During the terms and years of these centuries they give us an account of the doings of the King's Courts which are either compiled by eye-witnesses or from the narratives of eye-witnesses. They are the precursors of those vast libraries of reports which accumulate wherever the common law, or any legal system which has come under its influence, is studied and applied. If we except the plea rolls they are the only first-hand account we possess of the legal doctrines laid down by the judges of the fourteenth and fifteenth centuries, who, building upon the foundations which had been laid by Glanvil and Bracton, constructed the unique fabric of the mediaeval common law. Because they are contemporary reports they are of the utmost value, not only to the legal historian, but also to the historian of any and every side of English life. Just as the common law is a peculiarly English possession, so these reports of the doings of the Courts which constructed this common law are a peculiarly English source of mediaeval history. No other nation has any historical material in any way like them. Yet, until well on into the last century, they existed only in black letter books, published in the seventeenth century, and printed in contracted law French so carelessly as to be in many instances unintelligible; and the greater part of them are still in this condition. No one had cared to study the manuscripts upon which these printed books were based ; and the tale told by tradition as to their origin was accepted without question and without verification. For about the last forty years their unique historical importance has been gradually arousing some interest in them. The work done upon them by the late Mr. Horwood and by Mr. Pike for the Rolls Series, and, above all, the work done upon them by Professor Maitland for the Selden Society, has taught us much of their origin, of the language in which they are written, and of their meaning and importance in the history of England and of English law. It is proposed in this paper to say something of the results which have been reached in ascertaining the position which the Year Books hold among the sources of English legal history, and to indicate the manner in which they illustrate certain aspects of the development of English law.

We shall consider (1) the manuscripts and printed editions of the Year Books, (2) the origin and characteristics of the Year Books, and (3) the Year Books and the development of English law.

(1) The manuscripts and printed editions of the Year Books. Until the publication of some of the unpublished Year Books in the Rolls Series practically no attention at all had been paid to the MSS. of the Year Books. The legal profession and even the legal historians never went beyond the printed books, or the Abridgements which had been published in the sixteenth century. No doubt many of these MSS. are lost, superseded by the printed page?. Like the works of the lawyers who lived before the age of Justinian they became useless and disappeared. But when in the last half of last century the work of editing the Year Books began again it appeared that many still survived.

Mr. Horwood, describing a large MS. in the Cambridge University library, from which he took the text of the Year Book 20 & 21 Edward I, tells us that, besides the reports of those years, there

' is a large body of cases illustrative of pleadings in various writs, and nearly forty consecutive folios (370-409) of cases which, from the names of the judges, must have occurred in or before 18 Edward I’ (1290)? Fitzherbert also used for his Abridgements not only Bracton's Note Book, but also reports which came from 12 & 13 Edward I (1284-5), as well as a number of undated cases of the time of Edward I 3. Professor Maitland says that there are numerous cases which come from a period before the dismissal of the judges in 1289; 'and,' he says, 'we may add that one of our manuscripts contains a few cases which, unless we are much mistaken, belong rather to the seventies than to the eighties of the thirteenth century : cases decided by men who were on the bench in Henry III's day, and who must have known Bracton *.' Some of these MSS. give very concise notes of cases. They are rather head notes than reports. Altogether the number of MSS. containing reports of cases of the reign of Edward II and earlier which have come before Professor Maitland is thirteen ; they all present striking differences from each other. We are tempted,' he says, 'to say that whereas an investigator of manuscript literature can generally assume that every codex has only one parent, the ordinary laws of procreation hold good among these legal volumes, and that each of them has had two parents—two if not more. We could not explain this intimacy, were it not that we have before us the work of men who live in close fellowship with each other 3: The number of MSS. which Mr. Pike has used is smaller ; but here again the differences between the MSS. is very considerable, and no one MS. can be considered as pre-eminent 4. The marginal notes which their owners have fixed to them show that they have been extensively used 6.

See Y. B. 1, 2 Ed. II (S. S.), xxx, and Ed. II (S. S.), xvi-xxi for a MS., described by Selden in his Dissertatio ad Fletam, which is now lost; and Y. B. 17, 18 Ed. III (R. S.), xix for a MS. used by Fitzherbert, which has also disappeared. ? Y. B. 20, 21 Ed. I (R. S.), xv.

8 Y. B. 2, 3 Ed. II (S. S.), ix, x. 4 Ibid. x.

Ibid. xiv.

Until we get a modern edition of the whole of the Year Books it is impossible to say much of the MSS. of later years. Perhaps these MSS. will tell us something of the mode in which the later reports were made, and the manner in which they were circulated among the members of the legal profession--matters about which we are still very ignorant. For the present we have only the old printed editions, in which the whole of the reign of Richard II and some of the years of Henry V and VI's reigns are omitted 6 ; and the new printed editions of some of the years of the three Edwards, published in the Rolls Series and by the Selden Society. Of these printed editions, old and new, we must now say something.

It was not till seven or eight years after the introduction of printing into England that the Year Books began to get into print?; and it was only gradually and by degrees that some of the many existing MSS. attained to this dignity. From the end of the seventeenth century to the middle of the nineteenth century no new MSS. were printed.

Probably the earliest printer of Year Books was William de

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1 Y. B. 2, 3 Ed. II (S. S.), xiv.
* Y. B. 1, 2 Ed. II (S. S.), xc; 3 Ed. II (S. S.), xii, xxxii-xli.
3 Y. B. 3 Ed. II (S. S.), xli.

· Y. B. 12, 13 Ed. III, xix; cp. II, 12 Ed. III, x-xviii, 13, 14 Ed. III, xvii-xxi, xxiv, 17 Ed. III, xxx, xxxi.

20, 21 Ed. I (R. S.), xviii ; 13, 14 Ed. III (R. S.), xxV; 16 Ed. III, (R. S.), i, xxi. "It is probable that in the multiplication of copies by hand, for the use of the profession, various remarks originally made in the margin became incorporated in the text .::

It is difficult to account otherwise for the occasional interpolation of a query, with the answer Credo quod non, and for various observations, complimentary or otherwise, or statements of law by particular persons.'

Hale, Hist. Comm. Law, 201, says that he saw the entire years and terms of Richard II's reign in MS. ; there are a few cases in Fitzherbert, Jenkins, Keilway and Benloe ; these have been collected by Bellewe, Reeves H. E. L. ii. 487, Cooper, Public Records, ii. 392, 393.

? On this subject see Soule, Year-Book Bibliography, Harv. Law Rev. xiv. 557 seqq.

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