Joseph Biancalana

The Origin and Early History of the Writs of Entry

The following abbreviations are used in the footnotes:	1
Beds. I—"Roll of the Justices in Eyre at Bedford, 1202," ed. G. H. Fowler, Bedfordshire Historical Record Society, vol. 1 (1913), 133–247. Beds. II—"Roll of the Justices in Eyre at Bedford, 1227," ed. G. H. Fowler, Bedfordshire Historical Record Society, vol. 3 (1916), 1–206. Berks.—The Roll and Writ File of the Berkshire Eyre of 1248, ed. M. T. Clanchy, Publications of the Selden Society, vol. 90 (1972–73). BNB—Bracton's Note Book, ed. F. W. Maitland, 3 vols. (London: C. J. Clay, 1887). Bracton—Bracton de Legibus et Consuetudinibus Angliae, ed. G. Woodbine, trans. S. Thorne, 4 vols. (Selden Society and Harvard University Press, 1968, 1977). CRR—Curia Regis Rolls, prepared under the superintendence of the Deputy Keeper of the Records, 19 vols. 1922–. Early Registers—Early Registers of Writs, ed. E. De Haas and G. D. G. Hall, Publications of the Selden Society, vol. 87 (1970). Glanvill—Tractatus de Legibus et Consuetudinibus Regni Anglie Qui Glanvilla Vocatur, ed. and trans. G. D. G. Hall (Selden Society, 1965). Gloucs.—Rolls of the Justices in Eyre for Gloucestershire, Warwickshire, and Staffordshire [Shropshire] 1221, 1222, ed. D. Stenton, Publications of the Selden Society, vol. 59 (1940). History of English Law—F. Pollock and F. W. Maitland, The History of English Law before the Time of Edward I, 2d ed., 2 vols. (Cambridge: Cambridge University Press, 1968). JUST1—Rolls of Itinerant Justices on Eyre, National Archives KB26—Curia Regis Rolls, National Archives Lincs.—The Earliest Lincolnshire Assize Rolls 1202–1209, ed. D. Stenton, Publications of the Lincolnshire Record Society, vol. 22 (1926). Lincs. & Worcs.—Rolls of the Justices in Eyre for Lincolnshire (1218–1219) and Worcestershire (1221), ed. D. Stenton, Publications of the Selden Society, vol. 53 (1934). Northants.—The Earliest Northamptonshire Assize Rolls 1202–1203, ed. D. Stenton, Publications of the Northamptonshire Record Society, vol. 5 (1930). PKJ—Pleas before the King or His Justices, ed. D. Stenton, 4 vols., Publications of the Selden Society, vols. 67, 68, 83, 84 (1948, 1949, 1966, 1967). 14 PRS—Three Rolls of the King's Court in the Reign of King Richard the First, ed. F. Maitland, Pipe Roll Society, vol. 14 (1891). 31 PRS—"Curia Regis Roll 5 (1196)" and "Curia Regis Roll 8B (1198)" in Memoranda Roll for the Tenth Year of King John, ed. R. Allen Brown, Pipe Roll Society, vol. 3, n.s. (1955), 69–118. RCR—Rotuli Curiae Regis, ed. F. Palgrave, 2 vols. (London: G. Eyre & A. Spottiswoode, 1835). Shrops.—The Shropshire Eyre Roll of 1256, ed. A. Harding, Publications of the Selden Society, vol. 96 (1980). Staff.—Staffordshire Suits extracted from the Plea Rolls, temp. Richard I and King John, ed. G. Wrottesley, Publications of the William Salt Archaeological Society, vol. 3 (1882), 25–163. Statutes—Statutes of the Realm, ed. A. Luders and others, 10 vols. (London, 1810–1828). Yorks.—Rolls of the Justices in Eyre for Yorkshire, 1218–1219, ed. D. Stenton, Publications of the Selden Society, vol. 56 (1937).
The writs of entry are of interest chiefly because they offer an example of how, in the first century of its history, the common law grew by the creation of new writs. The first writs of entry were among the earliest writs to be invented after the legal reforms of Henry II. Further writs of entry were created after 1217. The distinctive feature of a writ of entry was that it challenged what plaintiff thought was the basis of defendant's claim to the land in dispute. A writ of entry alleged that defendant "had no entry" into the land other than by a transaction or taking that did not authorize him to hold the land.	2
The writs of entry raise three questions of concern to legal historians. First, why did royal officials create writs of entry? What were they trying to achieve? Second, why were the writs of entry originally limited to three degrees? The three degrees of a writ of entry can be demonstrated by using the writ ad terminum qui preteriit (for a term of years that is over) as an example. In the first degree, the lessor sues the lessee and his writ says that the defendant had no entry other than by (per) the plaintiff who granted him a term of years now ended.¹ In the second degree the lessor's heir sues the lessee and his writ says that defendant has no entry other than by (per) the plaintiff's ancestor who gave him a term of years now ended. In the third degree the writ said that defendant had no entry other than through (per) his ancestor to whom (cui) plaintiff or his ancestor had leased the land for a term now ended. Thus a writ in the third degree could reach both the lessor's and the lessee's heir. There were no writs of entry beyond the third degree, beyond, that is, a writ with one per and one cui.² What was the purpose of this limitation on writs of entry? The third legal question raised by the writs of entry concerns Chapter 29 of the Statute of Marlborough, which in 1267 authorized writs of entry without regard to degrees.³ After the statute, if his claim fit a writ within the degrees, plaintiff had to use such a writ.⁴ But if his claim went beyond the three degrees, he could use a new writ of entry in the post. A writ of entry in the post for a term that has ended, for example, said simply that defendant had no entry save after ("post") a lease to the original lessee. What motivated the authorization of these new writs of entry?	3
Legal historians have offered answers to one or another of these questions. S. F. C. Milsom has offered an explanation of the origins of the writs of entry.⁵ Maitland suggested a reason for the three degrees, a suggestion amplified in this article.⁶ More recently, Robert Palmer has offered an explanation of the writs of entry.⁷ He is right to see the writs as extensions of the possessory assizes of novel disseisin and mort d'ancestor.⁸ He attributes the three degrees to the loss of jurisdiction by lords, but why that was a reason to limit the writs to three degrees remains unclear. Paul Brand has also taken up the writs of entry. Brand offers a simple explanation for the three degrees: the writs stopped just before they would become too clumsy.⁹ This is hardly an explanation, for it does not say why it was thought desirable to specify the relation between defendant and plaintiff or why an additional cui in the writ would be too clumsy. The reason for specifying the relation between defendant and plaintiff and restricting that relation to what could be expressed by the three degrees was to limit the substantive scope of the writ.¹⁰ Brand has also traced the making of Chapter 29 from the baronial demands for a change a decade earlier to the enactment and enforcement of the statute.¹¹	4
This article sees the answers to the three questions as related to each other. At the risk of oversimplification it might be useful to set forth the story that is the backbone of this article. The writs of entry were invented as supplements to the possessory assizes of novel disseisin¹² and mort d'ancestor.¹³ Plaintiffs whose claims did not fit a possessory assize were to bring a writ of right. Where, however, plaintiff's claim was close to a claim that could be made by possessory assize it was thought that he should not be made to bring a writ of right, which led to trial by battle or grand assize. He should have a new writ with trial by jury. The problem was how to design a writ for claims that were close to those redressable by a possessory assize without the new writ replacing, in effect, the writ of right. The most important basis for a claim of right to land was inheritance measured by generations of descent. If the new writs could be limited, as mort d'ancestor was limited, to one generation of descent, then the writ would be as possessory as mort d'ancestor. That was the purpose of the three degrees: to limit the writs of entry to, at most, one generation of descent. Beyond that plaintiff would have to use a writ of right.	5
Within a fairly short time the limitation to only three degrees became problematic in part because of changes in the legal world and in part because of changes in society. The relevant legal world changed as judges allowed the parties to a writ of entry to plead the right and when, in 1236, royal officials invented the writs of cosinage.¹⁴ That writ enabled plaintiff to claim land of which an ancestor more distant than those permitted by mort d'ancestor had died seised as of fee. These developments in the legal world meant that the old and simple differentiation between possessory assizes and writs of right was no longer sharp. More important, the social world changed with the development of markets for land in the first half of the thirteenth century. Alienations changed the use of the writs of entry. Where the three degrees were originally designed to limit the generations of descent from entrant to defendant, in the new world of land markets the three degrees in fact often functioned to limit the number of conveyances from entrant to defendant, which had nothing to do with the distinction between possession and right based on generations of descent. In that new world the limitation to three degrees could seem to be merely otiose, as it did to the barons in 1258. The authorization of writs of entry in the post made by Chapter 29 of Marlborough accommodated the writs of entry to the world of land markets.	6
Part I of this article shows how the writs of entry were invented as supplements to the possessory assizes of novel disseisin and mort d'ancestor. Part II explains the three degrees as originally designed to limit the kinds of inheritance claims that could be heard by writ of entry. Part III turns to the changes in the legal world that undercut the original purpose of the three degrees. Part IV takes up how the emergence of a land market led to the authorization of new writs of entry.	7

I. Inventing the Writs of Entry
The writs of entry were invented as supplements to novel disseisin and mort d'ancestor. Milsom has shown how litigants on a writ of right entered special issues or mises that mimicked the writs of entry and that were tried by jury rather than by battle or grand assize.¹⁵ It thus could seem that writs of entry developed out of the precipe writ of right. But in a legal world in which the only relevant writs were the possessory assizes and the writs of right, a litigant who wanted to go beyond the possessory assizes but did not want the ultimate judgment of battle or grand assize had two choices: try to reduce the writ of right to a jury issue with a special mise or try to extend the possessory assize with a special mise. Milsom has explored the former strategy. But litigants also used the latter. The fact that litigants used both strategies helps us to see the writs of entry not only as extensions of novel disseisin and mort d'ancestor but also as staking out a precarious position between the possessory assizes and the writs of right.	8
The parties to novel disseisin and mort d'ancestor could offer a special mise for jury decision.¹⁶ They could make assertions about the entry of their opponents or the ancestors or grantors of their opponents in language that mimicked writs of entry.¹⁷ For example, in novel disseisin defendant could attack plaintiff's seisin by saying that plaintiff had no entry other than by a gage.¹⁸ In mort d'ancestor, defendant could attack the decedent's seisin by saying he had no entry other than in right of his wife.¹⁹ In both assizes an assertion about the opponent's entry could become the special mise for the jury.²⁰ In 1199 one Joscelyn brought mort d'ancestor on the death of his father against one Wlviva, whose son warranted her and claimed the land as his inheritance from his father.²¹ Plaintiff said that the warrantor's father had no entry other than through Wlviva, who held the land when he married her. That issue went to a jury which found for plaintiff.	9
The entry clause could be put in a writ that was not quite mort d'ancestor, nor a usual writ of entry, nor yet a writ of right. In 1200 one Hawise brought such a writ against one Agnes.²² Hawise claimed that her father Reginald had died seised in fee and that she was her father's closest heir. Her claim would fit mort d'ancestor, but Agnes claimed the land in right of her son who, she said, was Reginald's son and heir. Mort d'ancestor did not lie between siblings.²³ According to Hawise, her mother Emma had been Reginald's true wife and Agnes had been his concubine. Instead of bringing mort d'ancestor, in which Agnes's answer might derail the assize or the jury might be confused, Hawise brought a writ in which she claimed as Reginald's heir the land in which Agnes had no entry other than that Reginald had taken her into his house and had had a son by her who she claimed was Reginald's heir. The entry clause supplemented mort d'ancestor and made the issue clear. The cases of novel disseisin and mort d'ancestor with special mises and the cases with strange writs of entry that go right to the issue of defendant's entry show how litigants sought to go beyond the possessory assizes without resorting to a writ of right. Their efforts were answered by the creation of writs of entry.	10

A. Writs of Entry Created before 1215
Four writs of entry were created before 1215: the writs of entry sur disseisin, ad terminimum qui preteriit, cui in vita, and in custodia.²⁴	11
Sur disseisin. The writ was obviously a supplement to novel disseisin. The writ could be used by a disseisee against the first generation heir of his disseisor, by a disseisee's first generation heir against his ancestor's disseisee, and in cases in which the disseisor or his heir alienated the land.²⁵ Restrictions, however, limited the use of the writ to a narrow class of situations. The background rule was that novel disseisin had to be brought by the person disseised against his disseisor.²⁶ If the person disseised died, his heir could not bring the assize because he had never been seised or disseised. His claim was by inheritance. For Bracton the question was whether the heir could bring mort d'ancestor. If the person disseised died so soon after the disseisin that his disseisor had not established his own seisin while his victim was alive, then the disseised person had in fact died seised and his heir had mort d'ancestor.²⁷ Otherwise, the heir had to bring a writ of right. Where, however, the disseised had brought novel disseisin but had died before the case had concluded, the heir could use the writ of entry to "perpetuate" the assize.²⁸ The writ included a clause that said that the disseisee had begun an assize that had stopped because the plaintiff had died. In the few recorded cases in which plaintiff brought a writ of entry, the plea roll records that plaintiff's father had brought the assize which stopped because of his death.²⁹ The use of the assize jury in actions on the writ sur disseisin seems to have been the norm. Bracton's speaking of the writ of entry as perpetuating the assize was not wholly figurative.	12
If the disseisor died, novel disseisin did not lie against his heir, because the heir had not disseised plaintiff and the heir was in by inheritance. There are odd cases in which the assize was allowed to proceed against the disseisor's heir or successor, but these cases are exceptional.³⁰ For the writ of entry to be used against the disseisor's heir, plaintiff must have brought the assize against the disseisor during his life and proceedings must have ended because of the disseisor's death.³¹ In 1204, a writ of entry sur disseisin for this type of case was said to be thenceforth a writ of course.³² The writ of course included a clause that said that plaintiff had brought the assize during the disseisor's life and that the assize had stopped because of the disseisor's death.³³ Reference to this clause is found in the records.³⁴	13
In the 1240s Chancery began to issue sur disseisin writs without the clause stating that an assize had been brought by plaintiff or his father but had stopped because one of the parties had died.³⁵ Writs in this less restricted form were challenged in two cases on the 1248 Berkshire Eyre.³⁶ The justices set both cases over for judgment. The judgment must have been in favor of the writs because there was an explosion of such writs in the 1250s.³⁷ The new model sur disseisin writ came in the usual three degrees.	14
Ad terminum qui preteriit. The writ of entry ad terminum qui preteriit developed from the writ of gage. Glanvill provided a writ for a debtor to recover land gaged for a term that had ended.³⁸ A gage of land secured the repayment of a debt as could a lease for a term of years. The differences between a gage and a lease do not concern the writ of entry ad terminum qui preteriit. The writ of gage had variations for the lessor's heir to sue the lessee,³⁹ for the lessor to sue the lessee's heir,⁴⁰ and for the lessor's heir to sue the lessee's heir.⁴¹ In all three types of cases involving inheritance, unless the writ was pleaded into the right, the plaintiff's ancestor was his brother, father, or uncle and the defendant's ancestor was his father. The writ of gage was also adapted for a conveyance from the lessee to defendant.⁴² In those cases, plaintiff was the lessor's son and there was one alienation.	15
Glanvill's writ of gage did not use the phrase about defendant's entry by which writs of entry came to be known. The writs of entry reformulated the writ of gage and its variants. By 1199 the writ of entry ad terminum qui preteriit in the first degree was available.⁴³ Also by 1199 there were writs of entry in the second and third degrees.⁴⁴ For a few years the writ of gage with its variants and the writ of entry in the three degrees existed side by side until the writ of gage faded away. A case in 1205 shows how one plaintiff dealt with the transition between the two writs.⁴⁵ Plaintiff's claim was that her father had gaged the land to defendant's father for a term now ended. Plaintiff first stated the claim in the terms of the writ of gage and then restated it in terms of a writ of entry. Perhaps she brought a writ of gage and pleaded as if it were a writ of entry.⁴⁶ The last action on a writ of gage without words of entry I could find was in 1209.⁴⁷	16
A lessor used the writ of entry in the first degree to sue his lessee for the term that had ended. The writ supplemented novel disseisin and mort d'ancestor. Bracton wrote that ad terminum qui preteriit lies where the assize of novel disseisin does not lie because he [plaintiff] is not disseised wrongfully and against his will. Nor does the assize of mort d'ancestor, because his ancestor did not die seised in his demesne as of fee....⁴⁸ Novel disseisin would not lie because the lessee's remaining beyond the term was not a disseisin for which the lessor could bring the assize.⁴⁹ Defendant's entry when made was lawful. His peaceful coming on to the land precluded the use of novel disseisin by the lessor or his heir.⁵⁰ A lessor who took matters into his own hands ran the risk of himself being sued in novel disseisin.⁵¹ The writ of entry offered a safer course of action.	17
A writ in the second degree could be used by the lessor's heir against his ancestor's lessee. Whether the lease expired during the ancestor's life or after his death the lessor's heir did not have mort d'ancestor because his ancestor had not died seised. The writ of entry provided a remedy analogous to mort d'ancestor for the heir of the lessor. In some of the early cases in the per and the per-and-cui forms of the writ the connection to mort d'ancestor remained visible. The writ spoke of the plaintiff as the lessor's closest heir (propinquior heres), a phrase borrowed from the mort d'ancestor writ.⁵² The writ in the third degree could be used by the lessor against the lessee's heir. The writ said that defendant had no entry other than through (per) his ancestor to whom (cui) plaintiff had leased the land. Whether the term had ended during the lessee's life or after his death, once the lessee's heir was in, the lessor could not eject him without committing a disseisin. The writ of entry gave the lessor a remedy.	18
Cui in vita. The writ of entry cui in vita enabled a widow to recover her inheritance or maritagium granted away by her late husband. A widow could also use the writ to recover dower received from one husband and granted away by a later husband.⁵³ The writ was analogous to the writs of dower, invented shortly after 1176, in that in both cases a widow could recover land impermissibly granted away by her late husband.⁵⁴ The logic of both the dower writs and the writ cui in vita resembled that of ad terminum qui preteriit because a husband's grant of his wife's dower, inheritance, or maritagium was, barring divorce, valid during the husband's life. The similarity to the ad terminum qui preteriit writs helps us to see the cui in vita writ as a supplement to novel disseisin. The husband's grantee who remained on the land after the husband's death did not commit a disseisin against the widow remediable by the assize.⁵⁵ But if a widow ousted her late husband's grantee, she committed a disseisin.⁵⁶ Having lost the assize, she could relitigate the matter with a writ of cui in vita.⁵⁷ The cui in vita writ was invented by 1200⁵⁸ and the writ in the third degree was in use by 1202.⁵⁹	19
In custodia and dum fuit infra etatem. The writ of entry in custodia said that defendant had no entry other than through plaintiff's guardian who held the land when plaintiff was underage and in wardship (in custodia). Glanvill wrote that a lord as guardian could not alienate permanently any of his ward's inheritance.⁶⁰ A lord could transfer the wardship of the ward's land only for the duration of the ward's minority. The writ of entry was invented by 1200 and undid permanent alienations.⁶¹ At least an attempt at the writ in the third degree was available by 1206.⁶² The in custodia writ was similar to the writs ad terminum qui preteriit and cui in vita in that it also dealt with grants the validity of which had expired. In a number of cases, plaintiff alleges that his mother was his guardian.⁶³ From the records of these cases it is frequently impossible to tell whether plaintiff's father held by military tenure and his lord granted the mother wardship or, what is more likely, whether plaintiff's father held by socage tenure, in which case the mother had wardship as the closest relative unable to inherit the land.⁶⁴	20
The writ made up for limitations in novel disseisin and mort d'ancestor. Someone who entered under a grant by a guardian did not commit a disseisin against the ward even if the grantee remained after the ward came of age.⁶⁵ There were two reasons why the guardian's grant did not disseise his ward. First, the grantee entered without forcing anyone off the land.⁶⁶ Second, it was not clear that the ward was seised of the land while he was in wardship. Not being seised, he could not be disseised. Chapter 4 of the Assize of Northampton in 1176 had provided that a lord was to take the homage of his tenant's heir even if the heir was underage.⁶⁷ There is no reason to assume that lords took the homage of their wards. But even if they did so frequently, the lord's having taken homage need not mean that the ward was seised. Bracton wrote that a child could receive seisin but could not maintain seisin.⁶⁸	21
Whether the child was seised while in wardship was unclear, and that lack of clarity affected the availability of mort d'ancestor. If the ward was seised after the death of his ancestor, he could not bring mort d'ancestor.⁶⁹ A writ of entry would overcome that obstacle to the assize. Where the ward had paid relief while underage, although precisely how he did so is not obvious, he was disqualified from mort d'ancestor and might bring the writ of entry.⁷⁰ Where the ward had granted the land by charter, and later brought mort d'ancestor against his grantee, defendant might produce plaintiff's charter at which point plaintiff could take the special mise that he had been underage when he made it.⁷¹ A writ of entry in custodia here would make little difference. In a 1219 case brought on a writ of entry, defendant answered that plaintiff had been seised after his ancestor's death and had conveyed to defendant by charter.⁷² Plaintiff denied the validity of the charter as having been made while he was underage. In a 1232 case, where plaintiff admitted that he had made a charter but sought to deny the validity of charter by saying that he had made it while he was underage, plaintiff lost.⁷³ Defendant had entered not by the guardian but by plaintiff himself. By the 1240s, however, plaintiffs could go right to the point: their writ asserted that defendant had no entry save through plaintiff himself when he was underage.⁷⁴ In these cases plaintiff alleged that he made his underage grant to his guardian and the defendant was the guardian or his grantee. By 1250 a separate writ—dum fuit infra etatem—had been invented to set aside a grant by someone underage.⁷⁵	22
The view that a ward was seised while underage, if taken seriously and systematically, would have precluded the use of mort d'ancestor in many cases for which it was intended: to recover against the lord who withheld the inheritance from his tenant's heir.⁷⁶ Given that the ward was not seised while underage, mort d'ancestor and the writ of entry overlapped, and in a number of cases brought on the writ of entry, it is hard to see why plaintiff did not use mort d'ancestor. One reason might have been that the writ of entry enabled plaintiff to state his specific claim: that defendant had entered by inheritance or conveyance from the guardian. In mort d'ancestor plaintiff would have to make that clarification in response to defendant or his warrantor.⁷⁷ That clarification about defendant's entry could be put in a writ of entry. In 1194, Walkelin son of Engelard sued Geoffrey son of Elias for land that his father was seised of when he went to Jerusalem, in which voyage he died, and in which land Geoffrey had no entry except through Silvester who had wardship of Walkelin while he was underage.⁷⁸ As in the writ of mort d'ancestor, Walkelin's writ of entry described him as Engelard's closest heir (propinquior heres).⁷⁹ At some point it became a requirement that plaintiff's father must have died seised of the land. In a 1240 case defendant answered that plaintiff's father had not died seised.⁸⁰ But an assize of mort d'ancestor between the same parties had determined that plaintiff's father had in fact died seised and plaintiff recovered. It is not clear why plaintiff brought both an action of mort d'ancestor and a writ of entry against the same defendant. In 1241 a plaintiff made a point of pleading that both his grandfather and his father had died seised.⁸¹ The writ of entry appears to have replaced mort d'ancestor where the defendant was the guardian or someone in by inheritance or conveyance from the guardian. In 1259 the Provisions of the Barons provided that mort d'ancestor be available for such cases even though there was a writ of entry.⁸²	23
The writ of entry also enabled plaintiff to overcome other obstacles to mort d'ancestor. If plaintiff and defendant were of the same lineage down which the land was to descend, plaintiff could not use mort d'ancestor but could use a writ of entry.⁸³ Where plaintiff was the heir of the ward, he could not bring mort d'ancestor because his ancestor had not died seised. He could use a writ of entry in the third degree.	24

B. New Writs after 1217
The judicial business of royal government came to a halt in 1215 because of the civil war between King John and the barons and did not resume until late 1217 or early 1218.⁸⁴ The first decade or so after the resumption of judicial business saw new writs of entry created and litigation on writs of entry, mostly on the older writs ad terminum qui preteriit, cui in vita, and in custodia, increase substantially. Those older writs probably at this time became writs of course and readily available from Chancery.	25
Unauthorized conveyances. The new writs for unauthorized conveyances by a farmer, by a villein, by a head of a religious house, or by a wife without the consent of her husband appeared in the first decade or so after the resumption of judicial business.⁸⁵ The new writ to set aside unauthorized conveyances by bailiffs or other officials appeared somewhat later.⁸⁶ These new writs supplemented novel disseisin in much the same way as the earlier writs of entry had supplemented the assize. Neither the grantor nor his grantee committed a disseisin because the entry of the grantee did not physically oust anyone.⁸⁷	26
As Milsom has shown, before the invention of the new writs against unauthorized conveyances plaintiff had to use a precipe writ of right and could focus the issue with a special mise.⁸⁸ The creators of the new writs took the already established writs of entry of ad terminum, cui in vita, and in custodia as their models. The writ to challenge a grant made by the head of religious house without the consent of the monks easily followed the pattern in that the grant was valid during the incumbency of the grantor and became invalid thereafter. The new writs to challenge the alienation of a free tenement by a farmer or villein, by a bailiff or other administrative official, or by a wife without the consent of her husband applied the principle of the earlier writs of entry more strictly in that these grants were invalid when made.	27
Non compos mentis. The writ of entry non compos mentis did not appear until the late 1230s or early 1240s. Before that time, plaintiffs used a writ of right sometimes with a special mise that defendant had no entry other than by a grant made by plaintiff's ancestor when he was in his last illness and, what is implied, disoriented.⁸⁹ A grantor's mental capacity could also be the special mise in an assize of novel disseisin.⁹⁰ Plaintiff might bring a quo warranto proceeding to challenge the mental capacity of the grantor under whose grant defendant held the land.⁹¹	28
The problem of dower and intrusion. The new writs of entry invented to deal with land held in dower were a little complicated owing to the variety of situations that seemed to call for a writ of entry. A widow's dower could be the location of three difficulties to be dealt with by writ of entry: (1) the widow or her later husband might alienate the dower lands, (2) if the widow remarried, her husband might survive her and he and his heirs might treat the dower lands as their own, and (3) her husband's heir, from whom she held dower, might convey the dower lands with the reversion to a third party and when the widow died the grantee of the reversion might lose the race to take possession of the dower lands.	29
Before 1215 there were cases in which plaintiff claimed that the widow of his ancestor had held the land as dower, that the land should descend to plaintiff, but that defendant was on the land. Plaintiffs brought their claims on quare intrusit writs,⁹² on quo warranto writs,⁹³ as plaints,⁹⁴ and on writs of right.⁹⁵ Plaintiff's ancestor might be his father,⁹⁶ grandfather,⁹⁷ great-grandfather,⁹⁸ his great-uncle,⁹⁹ or his great-great-grandfather.¹⁰⁰ The pleadings, perhaps because plaintiff was focused on establishing his own claim, seldom reveal how defendant came to be on the land, whether an ancestral widow had alienated, or whether she had remarried and her new husband and his heirs had remained on the land.	30
After the resumption of judicial business in 1217 the use of a writ of right in the first situation—alienated dower—continued,¹⁰¹ but by 1221 there was a writ of entry for that case.¹⁰² The comparatively early appearance of a writ for this situation, in contrast with the writs of intrusion, might be owing to its similarity to the other writs of entry that challenged grants.	31
For (Case 2) in which a widow's later husband and his heirs remained on the land and (Case 3) in which the husband's heir granted the reversion, there developed writs of entry that said that defendant had no entry other than by an intrusion into the lands as dower. Although before 1215 plaintiff in (Case 2) could bring a writ of right and plead a special mise,¹⁰³ the intrusion writ of entry owed a good deal to the quare intrusit writ and its variants. On those writs, which appear in the late twelfth century,¹⁰⁴ defendant was summoned or attached to explain why (quare) or by what right (quo warranto) he intruded himself (intrusit se) or entered (ingresum est or intravit) into defendant's fee. Sometimes the writ looks like a trespass writ in that defendant is said to have intruded with force or with force and arms.¹⁰⁵ Sometimes the plea roll record says only that plaintiff complained of defendant's intrusion or entry.¹⁰⁶ And sometimes plaintiff alleges defendant's intrusion as a way of bringing his plea on a writ of right to a point.¹⁰⁷ The situations in which quare intrusit and its variants could be used were very various.¹⁰⁸	32
One situation for the quare intrusit writ was intrusion into dower lands after the death of the widow. In early cases, a quo warranto writ challenged defendant's entry or intrusion.¹⁰⁹ The dispute was over which party had the right to inherit the land after the widow's death. From about the same time, plaintiffs complain that defendants intruded into dower lands and here, too, the dispute is over inheritance of the dower lands.¹¹⁰ In the 1220s, the quare intrusit writ was used to lodge claims that went to inheritance after dower.¹¹¹	33
In the 1230s the writ of entry appears: defendant has no entry except because (quia) he intruded or by (per) intrusion into the dower lands. The quare intrusit writ was recast into the form of a writ of entry: that defendant had no entry except through an intrusion (nisi per intrusionem) after the widow's death. The writ for the husband's heir (Case 2) and the writ for the grantee of the reversion after dower (Case 3) appear at about the same time. Where the assignment of the reversion was involved, plaintiff was the alleged grantee or his son, defendant was the alleged grantor's son, and the dispute frequently was whether defendant's ancestor had indeed granted the reversion.¹¹²	34
Life Estates. Similar to the writs of entry to recover land held in dower there were writs of entry to recover land held by life tenants; and, as in the case of the dower writs of entry, there were writs of entry that mentioned an intrusion after the life tenant and there were writs that did not speak of an intrusion. By the early 1220s, a writ of entry without mention of an intrusion was available to recover against the life tenant's grantee.¹¹³ As in the case of land held in dower, there were writs of entry for intrusion after the death of a life tenant. This writ developed from the quare intrusit writ and its variants. The quare intrusit writ continued to be used against intruders after life estates into the 1240s.¹¹⁴ Whereas in the case of dower, the intrusion writ was for the later husband and his heirs who remained on the dower lands, in the case of other life tenants the intrusion writ could be used against the life tenant's grantees¹¹⁵ and a writ of entry without words of intrusion, appropriate against the life tenant's grantee, could be used against the life tenant's heir.¹¹⁶ Plaintiff might be someone who had been assigned the reversion after the life tenant's death.¹¹⁷	35

II. The Rule of Three Degrees
Before 1267, if plaintiff's claim fit a writ of entry he could avoid using a writ of right. Writs of entry thus took cases away from writs of right. Paul Brand has provided evidence of the transfer of cases from writs of right to writs of entry: after the invention of writs of entry in the post the use of writs of right declined by half.¹¹⁸ The inference to be drawn is that limiting the writs to three degrees had prevented the writs of entry from taking even more cases from writs of right.	36
That evidence provides a clue to the reason for limiting writs of entry to three degrees. The limitation was intended to differentiate writs of entry from writs of right and to keep writs of entry for possessory claims as opposed to claims in the right. If royal officials from the beginning had made all writs of entry writs in the post, they would have, in effect, invented another type of writ of right. By instead inventing writs of entry in three degrees and no more than three degrees, royal officials meant to limit the kinds of claims that could be made by writ of entry to claims that involved no more than one generation of inheritance. This explanation of the three degrees elaborates Maitland's idea that the writs of entry were to operate between the possessory assizes and the writ of right.¹¹⁹	37
Maitland realized that, if the writs of entry were to be kept separate from writs of right, the writs of entry had to remain possessory.¹²⁰ That meant two things. First, plaintiff to a writ of entry could not be permitted to make the same kind of plea based on the seisin of a distant ancestor as he could make on a writ of right. Second, the party who lost an action on a writ of entry had to be able to relitigate the matter on a writ of right much as a party who lost in novel disseisin or mort d'ancestor could relitigate the matter in an action on a writ of right.¹²¹ Maitland, puzzled by the three degrees,¹²² did not see them as the mechanism that was intended to achieve those two things. But that was their purpose. The degrees were designed to restrict plaintiff to one generation of inheritance (a) from plaintiff's ancestor, on whose seisin plaintiff based his claim, to plaintiff or (b) from the unlawful entrant to defendant, or both. The limitation to three degrees would secure the come-back proprietary action for the losing party. A party who lost an action on a writ of entry could relitigate the matter on a writ of right and there base his claim on the seisin of a more distant ancestor. This feature of the degrees would make writs of entry like mort d'ancestor in that mort d'ancestor also allowed no more than one generation of descent from plaintiff's ancestor who had died seised—his parent, uncle, aunt, or sibling—to plaintiff. Thus limiting pleas based on inheritance would situate writs of entry in a rough hierarchy of writs between the possessory assizes of novel disseisin and mort d'ancestor and the writs of right.¹²³	38
How well the rule of three degrees served the intended purpose of keeping writs of entry as possessory as mort d'ancestor can be learned from the records of cases on the plea rolls. In almost all cases for which there are records, pleading on writs of entry as writs of entry remained within one generation of inheritance. The degrees thus achieved their purpose in most cases by far. Unfortunately, the peculiarities of each writ makes unavoidable an examination of each relevant writ.	39
When in the 1240s the new writ of entry sur disseisin was formulated in three degrees, the writ in the first degree had neither a per nor a cui. It said that defendant had disseised plaintiff's ancestor, his father,¹²⁴ mother,¹²⁵ brother,¹²⁶ or sister.¹²⁷ In this form the new writ replaced one use of the old writ. In the second degree the writ had a per. Most frequently by far this form of writ said that defendant had entered by a third party who had disseised plaintiff.¹²⁸ In these cases the disseisor had alienated the land to defendant. The writ in the second degree could also be used where defendant's ancestor, usually his father, had disseised plaintiff.¹²⁹ In these cases the writ replaced the other use of the old writ. The new writ could further be used where defendant's ancestor, usually his father, had disseised plaintiff's ancestor,¹³⁰ and where a third party had disseised plaintiff's ancestor, usually his father, and then had conveyed the land to defendant.¹³¹ In the third degree, the per and cui were most often used to trace two alienations from plaintiff's disseisor¹³² or two alienations from the disseisor of plaintiff's parent.¹³³ The writ was also used to trace an alienation from the disseisor to defendant's ancestor, husband, or predecessor abbot.¹³⁴ I have found only two cases in which plaintiff used a writ of entry sur disseisin to go beyond the range of mort d'ancestor. In both cases plaintiff alleged the disseisin of his grandmother.¹³⁵ One case was dismissed when plaintiff conceded that he brought his writ beyond the period of limitations.¹³⁶	40
In the second case Baldwin de Insula claimed that defendant had no entry other than by Isabel, Countess of Aumale, who had disseised Margaret, Countess of Devon, plaintiff's grandmother and Isabel's sister-in-law.¹³⁷ Margaret had died shortly before 29 September 1252.¹³⁸ Her son, plaintiff's father, had already died on 15 February 1245.¹³⁹ Plaintiff had been born by 1235.¹⁴⁰ He was, then, ten years old when his father died and it is unlikely that his father had ever been seised or had even a right to be seised during his mother's life. Where plaintiff's parent had died during the life of plaintiff's grandparent Chancery was willing to make an exception and to allow plaintiff to use a writ of entry based on the disseisin of his grandparent.	41
The writ ad terminum qui preteriit in the first degree enabled plaintiff to recover from his own lessee.¹⁴¹ In the second degree, plaintiff could recover from his ancestor's lessee. In most by far of the cases, plaintiff claimed that defendant had been his father's lessee.¹⁴² In other cases plaintiff's ancestor came within the limits of mort d'ancestor.¹⁴³ In four cases, plaintiff claimed that his consanguineus had leased to defendant.¹⁴⁴ I found six cases in which the lessor was plaintiff's grandparent,¹⁴⁵ one of which was pleaded into the right.¹⁴⁶ Three cases are rather early and their records do not take the form of later cases brought on the writ.¹⁴⁷ Perhaps they reflect some early experimentation with the writ. In at least two cases plaintiff, the lessor's heir, used a writ in the second degree to sue the lessee's heir.¹⁴⁸ The writ said that defendant had no entry save through (per) plaintiff's parent who had leased to defendant's parent.	42
In the third degree the writ could be used by the lessor against the lessee's heir. The writ could also be used by the lessor's heir against the lessee's heir. In the vast majority of cases, the descents on the plaintiff's and on the defendant's side came within the limits of mort d'ancestor.¹⁴⁹ The lessor or his heir could also use a writ in the third degree to recover from the lessee's grantee.¹⁵⁰ In virtually all the cases in which plaintiff is heir to the lessor, plaintiff is the lessor's child, sibling, or nephew.¹⁵¹	43
A few cases do not appear to fit the limitation to one generation of inheritance. The records of some of these cases do not exclude the possibility that plaintiff brought a writ of right or brought a writ of entry and pleaded into the right.¹⁵² I have found seventeen cases beyond one generation of inheritance, fifteen on plaintiff's side¹⁵³ and two on defendant's side.¹⁵⁴ One case was dismissed because plaintiff exceeded the period of limitations.¹⁵⁵ In another case plaintiff pleaded into the right.¹⁵⁶ In thirteen of the remaining fifteen cases the lease or gage was made either by plaintiff's grandfather or to defendant's grandfather.¹⁵⁷ It might have been the case that in actions involving grandparents the intervening generation had either died before the grandparent or before the term had expired. The latter could well have been the case where the term had been for several years or for the life of the grantee.¹⁵⁸ Unfortunately, the record seldom includes the duration of the lease. Those facts would discourage strict enforcement of the one-generation reason for the degrees. The same facts led to the expansion of mort d'ancestor by the writs of cosinage in 1236.¹⁵⁹ In at least two cases, both from the 1240s, plaintiff said that his cousin (consanguineus) gave the lease or gage.¹⁶⁰ In these cases plaintiff mimicked the writs of cosinage. Perhaps royal officials entertained the idea that the writs of entry should expand as mort d'ancestor itself expanded with the writs of cosinage. In the fourteenth century, the limit on the writs of entry in the post was the limit of the writs of cosinage.¹⁶¹	44
A widow used a cui in vita writ in the per form against her husband's grantee.¹⁶² She used a writ in the per-and-cui form against the heir of her husband's grantee, his child or sibling.¹⁶³ Whether a widow's heir could use the cui in vita writ to recover her inheritance or maritagium that was to descend to him was a difficult question for Bracton and the royal justices.¹⁶⁴ Although, when it came to giving escambium for failing to warrant his father's grant, it was clear that the heir's obligation was limited to assets he had received by inheritance from his father, Bracton refused to recognize a similar limitation when his ancestor's warranty would bar the heir.¹⁶⁵ Before 1220, there were a few cases by a widow's heir brought with a writ cui in vita.¹⁶⁶ After that date, they are very rare.¹⁶⁷ The writ was simply not readily available to the widow's heir.¹⁶⁸ In many cases widows used the per-and-cui form against the grantee of the husband's grantee.¹⁶⁹	45
The writ of entry in custodia in the first degree lay against the guardian himself or his wife claiming dower.¹⁷⁰ In the second degree, the writ lay against the guardian's heir, who turns out to be his child or brother.¹⁷¹ The ward's heir could also use the writ in the second degree.¹⁷² In most cases, the writ in the second degree was used against the guardian's grantee.¹⁷³ The writ in the third degree, the per-and-cui form, was used against the heir of the guardian's grantee and that heir was the grantee's child or sibling.¹⁷⁴ The writ, however, could also be used by the ward's child against the guardian's grantee,¹⁷⁵ by the ward's child against the child of the guardian's grantee,¹⁷⁶ and by the ward against the grantee of the guardian's son.¹⁷⁷ There thus could be one generation of inheritance whether from ward, from guardian, or from guardian's grantee. The per-and-cui form of writ also fit the grantee of the guardian's grantee.¹⁷⁸	46
The infra etatem writ in the first degree lay against plaintiff's grantee.¹⁷⁹ In the per form the writ could be used by the infant's heir against the infant's grantee.¹⁸⁰ The per-and-cui was used against the heir of plaintiff's grantee¹⁸¹ and against the grantee of plaintiff's grantee.¹⁸² The heir of the infant could use the writ against the grantee of the infant's grantee.¹⁸³	47
The litigation on the writs to retrieve unauthorized conveyances were similar to the pattern of litigation on the writs of cui in vita and in custodia. In the per form, defendant was the grantee under the challenged conveyance.¹⁸⁴ The per form could accommodate grants made by the villein or bailiff of plaintiff's parent¹⁸⁵ and grants made to defendant's parent.¹⁸⁶ The per-and-cui form was the more appropriate for the latter case. In the per-and-cui form, there could be one generation of inheritance on plaintiff's side, on defendant's side, or on both sides.¹⁸⁷ The per-and-cui form also fit one alienation by the initial entrant.¹⁸⁸	48
In the per form of the non compos mentis writ defendant was almost always the grantee and plaintiff's parent, uncle, or sibling had made the challenged conveyance.¹⁸⁹ In one case plaintiff's grandfather had made the challenged grant.¹⁹⁰ This might be an instance of the intervening generation not surviving the grandfather. In another case involving a grant by plaintiff's grandfather, plaintiff pleaded into the right.¹⁹¹ Occasionally, after 1236, the grantor was plaintiff's consanguineus.¹⁹² In the per-and-cui form there was one generation of descent from or one conveyance by the initial grantee.¹⁹³	49
Litigation on the writs for alienated dower was a little more complicated. In the per form, plaintiff is the heir of the widow's husband and defendant is the widow's grantee. In many cases brought on this writ the widow's husband is plaintiff's parent, uncle, or sibling.¹⁹⁴ In a few cases the widow's husband was plaintiff's grandfather¹⁹⁵ or his consanguineus.¹⁹⁶ The per-and-cui form of writ enabled plaintiff's to sue the heir¹⁹⁷ or the grantee of the widow's grantee.¹⁹⁸ Here, too, in most cases, the widow's husband was the father, uncle, or sibling of plaintiff.¹⁹⁹ Where the writ reached the grantee's heir, that heir was the grantee's son.²⁰⁰ There were also cases in which the alienating widow was plaintiff's grandmother or the wife of plaintiff's grandfather.²⁰¹	50
The entries for two cases in which plaintiff used a writ of entry and pleaded the dower of his grandfather's widow help to understand what was going on. Maud, the daughter of Peter Bavill claimed land against Juwetta daughter of Roger.²⁰² Her writ said that Juwetta had no entry except through Margery who had been Roger Bavill's widow holding dower. Roger was Maud's grandfather. Juwetta answered that Peter Bavill, Roger's son, had granted her the land and she had committed it to Margery. Maud responded that Peter, who appears to have been her father, could not have done so because Peter died during Margery's life and was never seised.²⁰³ From plaintiff's point of view, Margery's grant was good during her life, Margery had outlived plaintiff's father, so the descent from Margery to plaintiff should count as one generation. In another case plaintiff lost because the grandfather's widow was still alive.²⁰⁴ She had clearly outlived plaintiff's father. As in the sur disseisin and ad terminum qui preteriit cases in which plaintiff's grandparent outlived plaintiff's parent, where the grandfather's widow outlived the father, the descent was probably counted as one generation. Before Chapter Seven of the Statute of Gloucester a widow's grant from her dower was valid for her life.²⁰⁵ The earliest point in time at which the heir of the widow's husband could claim the dower land from the widow's grantee was at her death. This consideration militated toward treating descent from grandfather's widow to grandchild as one descent where the grandfather's widow survived the intervening generation.	51
In the cases in which the dispute was over the inheritance of the dower lands the writ and pleadings sometimes ignored the limitation to one generation of inheritance.²⁰⁶ In a 1233 case, plaintiff alleged that defendant had no entry except by (per) an intrusion made after the death of Cristine widow of Gervaise.²⁰⁷ Gervaise was plaintiff's grandmother's brother. Defendant was the grandson of Gervaise's brother. In a 1250 case, in which plaintiff said, in the manner of a writ of cosinage, that the widow's husband was his "cousin" (consanguineus), both plaintiff and defendant were cousins of the widow's husband.²⁰⁸ In 1256 when a plaintiff sought the inheritance after the death of his grandfather's widow, the widow might have outlived plaintiff's father.²⁰⁹	52

III. Changes in the Legal World
Two changes in the legal world contributed to the decline of the three degrees. First, complications in pleading weakened the ability of the three degrees to maintain a boundary between claims to seisin and claims of right. Second, the division between mort d'ancestor as possessory and writs of right as proprietary was blurred with the invention of the writs of cosinage in 1236.²¹⁰	53
Although the purpose of the degrees was to restrict writs of entry to one generation of inheritance, there was a complication in practice that hindered the degrees from clearly and cleanly achieving its purpose. The complication was that plaintiff or defendant, as Bracton wrote, could transform a writ of entry into a writ of right by his pleadings.²¹¹ Bracton's statement raises the question of what was the boundary between a writ of entry and a writ of right, between a possessory and a proprietary claim. The answer to that question is complicated because the division between writ of entry and writ of right, between seisin and right, was made along two dimensions.	54
One dimension was the source of the right. Plaintiff's claim of right could have two sources. First, plaintiff's claim could go beyond seisin into right if plaintiff claimed that his ancestors held in fee and the right descended to him. If plaintiff based his claim on ancestral seisin beyond one generation of descent, the limit on mort d'ancestor, he was pitching his claim into the right. Thus Bracton spoke of plaintiffs turning a writ of entry into a writ of right by going beyond the three degrees, by basing their claim on the seisin of a more remote ancestor.²¹² Bracton thus accommodated the vicissitudes of practice by marking the conceptual difference between the two types of writ while conceding that the difference was not always maintained in practice. Such cases are found on the plea rolls.²¹³ The somewhat unusual flexibility that allowed plaintiffs to plead a writ of entry into the right reflects the precarious position of the writ between the possessory assizes and the writs of right. The most important reason to bring a writ of entry and plead into the right was that, although it came within the limitation period, plaintiff's claim exceeded the degrees. Thus in 1200 a plaintiff brought a writ of entry ad terminum qui preteriit and pleaded that in Henry II's reign his great-grandmother had been seised and had gaged land for a term now over.²¹⁴ By the same token, defendant's answer could be a claim of right based on the seisin of an ancestor more remote than one generation.²¹⁵ In one case brought on a writ of entry in custodia plaintiff alleged that his guardian's son had conveyed the land to defendant.²¹⁶ Defendant began his defense with the seisin of his great-grandfather. Plaintiff, however, said that he did not wish to argue about the right but demanded his seisin.²¹⁷ The ability of plaintiffs to plead beyond the degrees into the right and yet use a writ of entry weakened the neat division between claims to seisin and claims of right. In a legal system in which plaintiff's count or pleading was to accord with his writ, it was probably hard to understand why a plaintiff who was going to plead beyond the degrees should not be given a writ beyond the degrees.	55
The second source of right was, as Milsom has emphasized, seigneurial.²¹⁸ If plaintiff or his ancestor had taken defendant's homage, or the homage of defendant's warrantor, then the defendant had a claim of right.²¹⁹ For Bracton, defendant's answer that he held the fee of plaintiff as plaintiff's man turned the writ of entry into a writ of right.²²⁰	56
The second dimension along which claims of seisin were divided from claims of right was the mode of trial and proof. Trial by battle or by grand assize were modes of trial appropriate for claims of right. Thus where plaintiff or defendant based their claim on the seisin of an ancestor more remote than one generation of descent and where defendant claimed to hold the fee because plaintiff had taken his homage, trial could be by battle or grand assize.²²¹ A claim to seisin, as opposed to right, could be tried by a jury, as in novel disseisin and mort d'ancestor. Actions on writs of entry were ordinarily tried by jury. The association between claims in the right and trial by battle or grand assize went both ways so that, if battle or the grand assize were used to decide a case, the case was thus decided in the right. According to Bracton, the question whether someone was seised a long time ago was a question suited to battle or the grand assize because the juror-witnesses of an ordinary jury could not be expected to have seen and heard the facts.²²² Grand assize jurors sometimes based their decisions on events in a past so remote that one wonders how they knew the details of those events.²²³ Thus pleading facts long past, even within one generation of inheritance to the parties, made a claim one of right, rather than of seisin, triable by battle or grand assize. In 1199, plaintiff brought a writ of gage and alleged that his father had gaged the land for a term that had ended.²²⁴ He offered battle as proof "ut de longo tempore" ("as of a long time"). In a case in 1226, defendant to a writ of entry ad terminum qui preteriit alleged that his father had been seised of the land for forty years.²²⁵ He put himself on the grand assize.	57
If the passage of time alone could turn a writ of entry into a writ of right, then if writ of entry were to be kept separate from writs of right, a temporal boundary between claims to seisin and claims of right had to be drawn. The period of limitations for writs of entry, the period within which the allegedly unlawful entry had occurred, fixed that temporal boundary; and the period of limitations for the writs of entry was the period of limitations for mort d'ancestor. Although the earliest judicial enforcement of that limitations period appears in the surviving records in 1222, the period had probably been in place much earlier.²²⁶ When the new sur disseisin writ appeared in the 1240s and 1250s, the period of limitations for that writ was the period of limitations for novel disseisin.²²⁷	58
The limitation period could re-enforce the three degrees. Bracton, focusing on the 1220s and 1230s, spoke of the degrees and the limitations period of mort d'ancestor as twin limits to the writs of entry.²²⁸ In 1222 a plaintiff brought a writ of entry ad terminum qui preteriit in the third degree for land gaged for a term by his grandfather.²²⁹ Defendant answered that he and his father had held the land during Richard's reign and beyond the limitation for mort d'ancestor. Plaintiff conceded as much and defendants were sent without day. Similarly, in 1255 a plaintiff brought sur disseisin and claimed that defendant had no entry other than through a conveyance by the man who disseised plaintiff's grandmother.²³⁰ Defendant vouched to warranty his grantor who answered that plaintiff's grandmother could not have been disseised within the period of limitation because she died one hundred years ago. That was the issue for the jury until plaintiff conceded that her grandmother died before the period of limitations. Defendant was sent away.	59
The invention of the writs of cosinage in 1236 also played havoc with the once simple differentiation between claims to seisin and claims of right. The writs of aiel, besaiel, and the like allowed plaintiff to go beyond mort d'ancestor and base his claim on the fact that a more remote ancestor had died seised of the land. The writs of cosinage were analogous to mort d'ancestor in that plaintiff's ancestor must have died seised, but they were analogous to writs in the right in that plaintiff could base his claim on the seisin of an ancestor more remote than those permitted in mort d'ancestor. There was no longer a clear middle ground between the possessory and the proprietary for writs of entry to occupy. Writs of entry as supplements or extensions of mort d'ancestor could expand as mort d'ancestor itself was enlarged by the writs of cosinage. After 1236, there appear cases on writs of entry in which plaintiff refers to the ancestor on whose seisin he bases his claim as his cousin ("consanguineus") in a fairly clear imitation of the cosinage writs.²³¹ By the fourteenth century, plaintiff to a writ of entry in the post could go to no ancestor more remote than he could in a writ of cosinage.²³²	60

IV. The Growth and Effect of Markets for Land
The developing market for land in the thirteenth century meant that the writs of entry had to deal with the world of conveyancing. The land market put pressure on the writs of entry in three ways. First, it revealed severe shortcomings with the writ of entry sur disseisin. Second, it forced the justices to control defendant's vouchers to warranty, calls upon defendant's seller to defend the action. Third, the limitation of writs of entry to cases in which there had been no more than one or two conveyances linking the unlawful entrant and defendant came to be viewed as the salient feature of the writ and a pointless constraint.	61
The early thirteenth century saw the development of a market, or of localized markets, for land. From the second quarter of the century there was increasing activity on that market. The evidence for the growth of markets for land has been collected by a number of historians.²³³ Although it is clear that a land market developed in the thirteenth century, the reasons are not very clear. Various factors were at work. The increased monetization of the English economy and the concomitant increase in the money supply facilitated and supported markets for land.²³⁴ Economic growth brought a great deal of new land into cultivation, which fueled the market.²³⁵ Great abbeys, able to take advantage of the new prosperity, were major purchasers of land.²³⁶ At the same time, there was growing indebtedness beginning in the late twelfth century.²³⁷ Debtors were sellers of land on the market. Studies of the fortunes of knightly families take a developing land market for granted.²³⁸ Families overwhelmed by debts often had to sell at least some of their lands. Rising families established or enhanced their positions by purchasing land. Social mobility in both directions fed the land market. Growth in royal government also contributed to the growth of a land market as royal officials went into the market as purchasers.²³⁹	62
The legal reforms of Henry II's reign contributed to the creation of a land market by rendering land alienable free from the grantor's heirs and free from his lord. Glanvill wrote that a man could make only reasonable grants of land.²⁴⁰ Traditionally, a man had less freedom to alienate land that he had inherited than land he had acquired.²⁴¹ Traditional restraints on alienation were removed by mort d'ancestor. After the assize was invented, if a man granted land during his life so that he did not die seised of the land, his heir had to warrant the grant, which prevented him from undoing the grant.²⁴² There are cases on the early plea rolls in which an heir complains, to no avail, that his father had granted away all his lands.²⁴³ The assizes of novel disseisin and mort d'ancestor weakened the legal ability of lords to control or prevent their tenants from conveying their lands. If a tenant conveyed his land, his lord could not take that land or drive out the buyer without committing a disseisin. When the new tenant died seised in fee, the lord had to accept the new tenant's heir as tenant. Chapter 39 of the 1217 Magna Carta sought to control the emerging land market by prohibiting tenants from conveying land if the land they retained was insufficient to do the services they owed their lord.²⁴⁴ Within this restriction, Bracton wrote, a lord could not legally prevent his tenant from transferring land.²⁴⁵ Bracton here was merely accepting the new realities of a land market.	63
A land market requires conveyances of land and conveyances by the initial entrant posed problems for writs of entry. Where land was granted with warranty, and it almost always was so granted, if the grantee were sued for the land he could vouch his grantor to warrant the land. If the grantor warranted the land, he would take over the defense of the action for the land. Vouchers to warranty raised difficulties for the writs of entry, because it was not expected that there would be many conveyances between the original entrant and defendant, as there could well be in a world of land markets. The courts severely limited vouchers to warranty in actions on the writs of entry.	64
In one passage Bracton wrote that defendant to the writ ad terminum qui preteriit could not vouch anyone not named in the writ.²⁴⁶ Here Bracton anticipated Chapter 40 of the Statute of Westminster I that prohibited defendants to writs of entry within the degrees from vouching "out of the line" drawn by plaintiff from the original entrant to defendant.²⁴⁷ The rule requiring defendants to vouch within the line helped to prevent an action on a writ of entry from becoming an action on the right. Vouchers within the line led back to the initial entrant. In an action of ad terminum qui preteriit, for example, vouchers led back to the alleged termor. He might allege that his entry was not by plaintiff or his ancestor or that plaintiff or his ancestor had granted the land in fee, not for a term of years; and in either case the issue did not go beyond plaintiff's writ. It is easy to find cases in which defendants vouch within the line.²⁴⁸ In at least two cases plaintiff successfully objected to defendant's vouching out of the line.²⁴⁹	65
Bracton treats a voucher out of the line as presenting two questions. If defendant asserts an entry other than that attributed to him by plaintiff (1) must he vouch his grantor and (2) may he vouch his grantor?²⁵⁰ Bracton answers that defendant need not, but may vouch his grantor. This latter position contradicts his earlier statement that defendant may not vouch out of the line. But Bracton is more concerned that the first warrantor not vouch a second warrantor and so on—lest there be, in his phrase, a thousand vouchers to warranty—than he is concerned with a single voucher to warranty out of the line. Bracton argued for the conclusion that one, and only one, voucher out of the line was permissible. That conclusion accords with what appears on the plea rolls. Ordinarily the justices allowed a single voucher by defendant out of the line.²⁵¹ The willingness of the justices to allow one voucher out of the line is exemplified by a 1268 case of sur disseisin in the first degree.²⁵² When defendant vouched a warrantor plaintiff, pointing out that his writ had mentioned no conveyance, objected to defendant's vouching anyone. The justices nevertheless allowed the voucher.	66
Three reasons for permitting one voucher out of the line come to mind. First, defendant's voucher, if his vouchee entered into the warranty, supported his claim that his entry was other than that alleged by plaintiff. It might have been for this reason that some, as Bracton wrote, would require defendant to vouch in this situation: it put defendant to a test. Second, defendant should be given the opportunity to benefit from his grantor's warranty, and his voucher saved him a separate action. Third, a single voucher where the vouchee disputed plaintiff's allegation as to defendant's entry would not threaten the limited nature of the writ of entry. When defendant vouched out of the line ordinarily his warrantor denied that defendant had entered as alleged by plaintiff.²⁵³ Sometimes, however, defendant's warrantor denied a different predicate of plaintiff's writ. In a 1258 case, on a writ to undo conveyance by a villein, defendant's warrantor denied that the alleged villein was indeed a villein.²⁵⁴ In some cases in which defendant vouched out of the line his warrantor vouched someone named in plaintiff's writ, usually the initial entrant.²⁵⁵ In these cases the initial voucher out of line did not lead beyond the scope of plaintiff's writ. What is more, the voucher out of line refuted the chain of conveyances from initial entrant to defendant alleged by plaintiff and, if sustained, was a reason for plaintiff to lose his action.²⁵⁶ In a few cases it seems that defendant vouched, not his grantee, but his lord.²⁵⁷ Perhaps because they understood that vouchers out of the line were unwelcome, defendants, in lieu of vouching to warranty, produced charters as evidence of their claim of title different from that alleged by plaintiff without vouching the grantor who gave them the charter.²⁵⁸	67
In addition to creating the problem of multiple vouchers to warranty, the new world of land markets transformed the writ of entry sur disseisin and changed the use of the other writs of entry. The original writ of sur disseisin included a clause that plaintiff or his father had initiated an action of novel disseisin that had to end because either plaintiff's father or defendant's father had died before the action had reached its conclusion.²⁵⁹ A problem arose when the disseisor alienated the land. Early in the thirteenth century plaintiff to novel disseisin could bring the assize against his disseisor even if he had alienated the disputed land.²⁶⁰ Common practice at this time was to include both the disseisor and the current tenant in the writ of novel disseisin.²⁶¹ In about 1212, the common practice developed into a rule.²⁶² If, however, the disseisor had died, he could not be named in the writ of novel disseisin. That was a case for the writ of entry. But if the disseisor had conveyed the land and had died before an assize was brought against him and his grantee, the person disseised could not use sur disseisin but would have to bring a writ of right. The new writ of entry sur disseisin began to appear in the 1240s and was frequently used beginning in the 1250s.²⁶³ In most cases by a large margin the new writ in the per form was used where plaintiff's parent, sibling, aunt or uncle had been disseised and the disseisor had subsequently alienated the land. In most cases the writ in the per-and-cui was used where there had been two conveyances from the disseisor to defendant. The new writ of entry sur disseisin thus accommodated a world in which conveyances of land were common, indeed were so common that they could be made in order to take the cases out of scope of a writ of entry.²⁶⁴ If the new writ of entry sur disseisin, which became popular in the 1250s, could reach two conveyances, why not have a writ of entry that could reach more conveyances? That question lay behind the move to authorize writs of entry in the post.	68
Operating in a society with a developing market for land, the function of the three degrees changed as did the perception of its function. The main and original purpose for that form and the limit it imposed on writs of entry was to keep the case within one generation of inheritance from the wrongful taking or bad grant. The form also limited the number of conveyances from the initial unlawful entrant and defendant. A writ in the third degree, the per-and-cui form, allowed only one conveyance from entrant to defendant where the entrant himself had come to the land by conveyance. Where the entrant had come to the land by an unlawful taking, the per-and-cui form allowed two conveyances from entrant to defendant.²⁶⁵ What had been the consequence of the three degrees became, and came to be seen as, its main purpose and function: to trace the conveyances from the unlawful entrant to defendant. After 1230 in most cases by far the per-and-cui form of writs of entry was used to link defendant to the initial entrant by conveyance, rather than by inheritance. Plaintiffs adapted the use of the writ to the new market for land.	69
The change in the use of the writ explains why reformers of 1259, 1263, and 1267 saw the per-and-cui limitation as a limitation on the number of alienations from entrant to defendant. Clause 25 of the Provisions of Westminster in 1263 and 1264 and Chapter 29 of the Statute of Marlborough in 1267 focused on the degrees as a limitation on the number of conveyances between entrant and defendant.²⁶⁶ The provision of the barons in 1259 said that the action or writ of entry should no longer be limited by the degrees but should lie at whatever degree included defendant.²⁶⁷ The 1263 version was more clear: plaintiff was to have a writ of entry even if "alienations for which the writ of entry is customarily given passed through so many degrees that the writ is unavailable in the form previously in use.²⁶⁸ Chapter 29 of the Statute of Marlborough repeated those words.²⁶⁹	70
When writs of entry in the post were introduced, plaintiffs used the new writs not to reach more distant generations of inheritance than allowed by writs within the degrees but rather to reach more numerous conveyances. In cases of ad terminum qui preteriit plaintiffs allege leases granted by themselves or by their parents.²⁷⁰ In cases of sur disseisin plaintiffs used the writs similarly.²⁷¹ Where a plaintiff bases his claim on the fact that he or his parent had been seised the reason for using a writ in the post must have been on the defendant's side of the writ: the connection between defendant and the initial entrant had more steps than permitted by a writ within the degrees. It is also unlikely that the greater number of steps were generations of inheritance.	71

Conclusion
Justice Holmes once said that ignorance is a great law reformer. Over time people forget the original reason for a rule. They apply the rule in new ways or in new circumstances. They change the rule or abandon it. The original reason for writs of entry as supplements to novel disseisin and mort d'ancestor and the original reason for limiting the writs to three degrees—to keep the dispute within the scope of mort d'ancestor—did not survive the changes in the legal and social worlds in which the writs of entry were to operate. The cosinage writs as extensions of mort d'ancestor blurred the distinction between the possessory assizes and a writ of right, the distinction that the three degrees was to maintain for writs of entry. The more active land market changed perceptions as to the function of the three degrees. Originally conceived as a limitation on generations of inheritance the three degrees came to be perceived as a limitation on the number of conveyances. There was no good reason to limit the number of conveyances from entrant to defendant. The Statute of Marlborough brought the writ up to date.	72
Joseph Biancalana is a professor of law at the University of Cincinnati College of Law. He is grateful to Paul Brand, Susan Reynolds, and the anonymous reviewers for commenting on drafts of this article. Notes ^1. G. J. Turner thought that in the first degree the writ did not have words of entry. G. J. Turner, introduction to Brevia Placitata, ed. G . J. Turner, Publications of the Selden Society, vol. 66 (1947), lxxvi. There were, however, two forms of the writ in the first degree: one with words of entry, 4 CRR, p. 204 (T 1206); Gloucs., No. 657 (1221); 13 CRR, No. 162 (P 1227); Beds. II, 223 (1227); 13 CRR, No. 2073 (P 1229), and one without words of entry, Early Registers, pp. 95 (cc 193), 288 (R 76); 11 CRR, No. 680 (M 1223); 12 CRR, No. 1544 (M 1225). The two forms of writ might have been the reason for the two methods of counting degrees. See below, note 2. ^2. There were in fact two methods of counting the degrees or classifying writs of entry in terms of the number of degrees. The writ of entry ad terminum qui preteriit provides the easiest example. One method is the method explained in the text and counts three degrees. On the other method the writ used by lessor against lessee is not counted as in a degree; there are then only two degrees. The matter is well explained by Milsom in S. F. C. Milsom, introduction to Novae Narrationes, ed. E. Shanks and S. F. C. Milsom, Publications of the Selden Society, vol. 80 (1963), cxxxv. One wonders whether the two forms of writ for a lessor to use against a lessee motivated two methods of counting degrees. See above, note 1. At any rate, whichever method one used, the writ could have only one per and cui. ^3. 1 Statutes 25. ^4. St. Westminster I, c. 40, 1 Statutes 36; JUST1/1062, m.29d (1280). ^5. S. F. C. Milsom, The Legal Framework of English Feudalism (Cambridge: Cambridge University Press, 1976), 88–102; S. F. C. Milsom, Historical Foundations of the Common Law, 2d ed. (London: Butterworths, 1981), 143–49. ^6. 2 History of English Law, 62–75. ^7. Robert C. Palmer, "The Origin of Property in England," Law and History Review</

The Origin and Early History of the Writs of Entry

JOSEPH BIANCALANA

I. Inventing the Writs of Entry

A. Writs of Entry Created before 1215

B. New Writs after 1217

II. The Rule of Three Degrees

III. Changes in the Legal World

IV. The Growth and Effect of Markets for Land

Conclusion

Notes