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The Forms of Action at Common Law: A Course of Lectures
The forms of action are a part of the structure upon which rests the whole common law of England and, though we may have buried them, they still, as Maitland says, rule us from their graves. The following extract is taken from the editors' 'The evasion of the burden of archaic procedure and of such barbaric tests of truth as battle, ordeal and wager of law, by the development of new forms and new law out of criminal or quasi criminal procedure and the inquest of neighbour-witnesses has never been described with this truth and clearness. He makes plain a great chapter of legal history which the learners and even the lawyers of today have almost abandoned in despair. The text of the chief writs is given after the lectures …'
- GenresLaw
75 pages, Paperback
First published January 3, 1936
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About the author
Frederic William Maitland
201 books8 followersFrederic William Maitland, FBA was an English historian and lawyer who is generally regarded as the modern father of English legal history.
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Displaying 1 - 4 of 4 reviews
December 14, 2017
A short and lucid explanation for the evolution of common law procedure. (Long out of copyright, full text available here: https://sourcebooks.fordham.edu/basis... )
Maitland was professor of legal history at Cambridge and this short book was adapted from his lectures.
Maitland is a medievalist and his main theme is how the quirks of medieval history resulted in quirks of the common law, even as late as the 19th century. (Maitland was writing late in the Victorian era.)
Here's an example, and one of the most important. Henry II issued a decree, the Assize of Novel Disseisin, to efficiently safeguard real property. The way it works is, if somebody takes your land, you go to the Chancellor, who issues an order to the sheriff, commanding the sheriff to summon 12 locals and ask them "did X unjustly and without judgment disseise Y of land Z?" And if the say yes, Y gets the land back, right away.
There's an awkwardness. What if X has already resold the land, or leased it, or otherwise isn't currently holding it? In that case the facts don't quite match and the assize fails. So later kings and chancellors created additional processes to cover those cases -- the so-called writs of entry. These writs, because newer, have many procedural advantages for plaintiffs, particularly a jury brought in to clarify disputed facts, rather than a pre-charged panel with a fixed question. But those newer writs, on their face, only apply to cases where the Assize of Novel Disseisin doesn't.
The legal solution to this problem is one of the most famous stories in all English law -- the fictional lessee John Doe and his ejector, William Stiles. The story goes like this (and Maitland's is the best explanation of this I have seen.)
The real plaintiff tells the court "gosh, I wanted to lease my land to John Doe, and the plaintiff's lessee, William Stiles, ejected him from the land, and I'm suing Stiles on behalf of my tenant Doe." The plaintiff then sends a letter to the real defendant, nominally from Stiles, saying "hey dude, I'm being sued for that land you leased me, and you'd better appear in court to defend your title."
The defendant can't say "Stiles, who's that?" The court won't let him start talking unless he has some connection to the case; there's no opportunity to say "yeah Stiles is being sued and didn't show up, that's because he's fictional." The court doesn't want strangers telling it that named defendants are fictional. So the defendant can't challenge the made-up bits and has to engage in the real question at issue, the title to the land.
The judges of course are former lawyers who know perfectly well it's a story. But they'd rather wink at the fibs than admit to breaking the rules about which remedies apply in which case. I suppose you could imagine a different situation in which the court says "we know what you're trying to pull, sorry, you can't, it's the assize or nothing." But for real title disputes, the courts were prepared to allow the procedural finesse.
Maitland was professor of legal history at Cambridge and this short book was adapted from his lectures.
Maitland is a medievalist and his main theme is how the quirks of medieval history resulted in quirks of the common law, even as late as the 19th century. (Maitland was writing late in the Victorian era.)
Here's an example, and one of the most important. Henry II issued a decree, the Assize of Novel Disseisin, to efficiently safeguard real property. The way it works is, if somebody takes your land, you go to the Chancellor, who issues an order to the sheriff, commanding the sheriff to summon 12 locals and ask them "did X unjustly and without judgment disseise Y of land Z?" And if the say yes, Y gets the land back, right away.
There's an awkwardness. What if X has already resold the land, or leased it, or otherwise isn't currently holding it? In that case the facts don't quite match and the assize fails. So later kings and chancellors created additional processes to cover those cases -- the so-called writs of entry. These writs, because newer, have many procedural advantages for plaintiffs, particularly a jury brought in to clarify disputed facts, rather than a pre-charged panel with a fixed question. But those newer writs, on their face, only apply to cases where the Assize of Novel Disseisin doesn't.
The legal solution to this problem is one of the most famous stories in all English law -- the fictional lessee John Doe and his ejector, William Stiles. The story goes like this (and Maitland's is the best explanation of this I have seen.)
The real plaintiff tells the court "gosh, I wanted to lease my land to John Doe, and the plaintiff's lessee, William Stiles, ejected him from the land, and I'm suing Stiles on behalf of my tenant Doe." The plaintiff then sends a letter to the real defendant, nominally from Stiles, saying "hey dude, I'm being sued for that land you leased me, and you'd better appear in court to defend your title."
The defendant can't say "Stiles, who's that?" The court won't let him start talking unless he has some connection to the case; there's no opportunity to say "yeah Stiles is being sued and didn't show up, that's because he's fictional." The court doesn't want strangers telling it that named defendants are fictional. So the defendant can't challenge the made-up bits and has to engage in the real question at issue, the title to the land.
The judges of course are former lawyers who know perfectly well it's a story. But they'd rather wink at the fibs than admit to breaking the rules about which remedies apply in which case. I suppose you could imagine a different situation in which the court says "we know what you're trying to pull, sorry, you can't, it's the assize or nothing." But for real title disputes, the courts were prepared to allow the procedural finesse.
August 18, 2013
Beginners guide to common law procedure with a touch of humour and lots of style. If you only read lecture one; 'Why Obsolete procedure has importance'; you'll still learn something. Maitland makes no bones about his opinions on the reckless abandon shown by the legal profession when it comes to legal History. If you're interested in process development, and qualitative change - Forms of Action won't be a waste of research.
Please don't read this book purely to quote the constitution to anyone in Latin. Especially me.
Note of course, that like the author, I am English. And refer to the version published in 1951.
Please don't read this book purely to quote the constitution to anyone in Latin. Especially me.
Note of course, that like the author, I am English. And refer to the version published in 1951.
February 1, 2013
Since I read this book on my commute from home to law school, I didn't get to consult the dictionary for words I didn't know. Also, I am not really an English history buff. Still, I found this book comprehensive and clear.
May 11, 2017
The author writes with such self-evident authority and such a classic style that even if tomorrow his research were refuted I would still want to believe every word.
Displaying 1 - 4 of 4 reviews