This development which is going on in the law was brought to the attention of all not long ago by a striking decision of the Supreme Court of the United States in N. Y. N. H. & H. R. R. v. Interstate Commerce Commission.1 That case may go no further than to decide that a railroad company which is engaged in dealing in coal must charge itself its regular schedule rates or it will be guilty of illegal discrimination; but much of the reasoning of the court, if carried to the logical conclusion, would seem to forbid the railroads from taking the inconsistent positions of carriers and dealers. And in Illinois the court long since has taken that further step in Central Elevator Company v. People,3 and held that it is inconsistent with the public duty which a grain warehouseman as a public servant owes its various patrons, for it to engage in the grain business and utilize its own elevator facilities in carrying it on.*

These are radical views that are expressed in these last decisions, but serious situations require bold solutions. It may be regarded as already conceded that if a public service company is engaged in two kinds of business, it may not do what might be done in private enterprises, give itself preference over its rivals. Indeed it may very probably turn out that it will be decided that there is no way in which the situation can be safeguarded. When the public company has two activities, it will be content if need be with the one profit in its serving capacity, and sell its goods at cost if it must, a sort of competition which its competitor in business cannot meet. Such being the case, it may be established that it is necessary for the maintenance of the highest type of public service to forbid entangling alliances between public services and private businesses, whenever their interests might come in direct conflict with the interests of those whom they have undertaken

to serve.

1 200 U. S. 361.

2 The Interstate Commerce Commission has several times taken occasion to animadvert upon the practices of some railways in conducting collateral business. Re Grain Rates of Chicago Great Western Ry., 7 I. C. C. Rep. 33; McGrew v. Missouri Pacific Ry., 8 I. C. C. Rep. 630.

8 174 Ill. 203.

4 In accord is Hannah v. People, 198 Ill. 77, a much more extreme case, holding a statute passed to permit warehousemen to store grain in their own elevators, unconstitutional because against the general clauses in the Illinois constitution declaring grain elevators public in character.

In Attorney General v. Great Northern Ry., 29 L. J. Ch. 794, this public policy was instrumental in causing the court to declare the coal business ultra vires of a railroad company.

IX.

That those who profess a public employment owe the utmost public service should be generally accepted as the fundamental principle upon which the law governing public employment is to be based. It is not agreed, however, how far this principle should be pressed; there is a clash of interests here, and there is an inclination on the part of those who conduct the public services to contest every issue. This is hardly an enlightened selfishness; for it seems to many who appreciate the temper of the public, that the time has come when extension of the law and enforcement of it should be the avowed attitude of all conservative persons who wish the perpetuation of the present condition of individual enterprise; indeed, the announced radical program is for government ownership of all public utilities, with its unknowable consequences. It would be well, therefore, if the restless and the doubting who see many abuses and many wrongs in the conduct of our public services without prompt remedy or adequate redress, might be relieved and heartened by being shown that the common law is adequate to deal with all real industrial wrongs, and that with the aid of remedial statutes the administration of the law can be relied upon. And it should be sufficiently emphasized at all times in all situations that public servants may not adopt to the prejudice of their public various profitable policies, and then justify them as inherent rights which other men in ordinary business may use in the advancement of their interests.

Bruce Wyman.

TRANSFER OF LAND IN OLD ENGLISH LAW.

ONE

NE of the difficulties which ancient law has to master in its growth is the opposition offered by tribal custom to the alienation of land. Land is not originally regarded as a conveyable or transferable commodity: even after it has been appropriated by separate households some time elapses before the occupiers of the different plots and holdings acquire the right to dispose of them in the market, to give, sell, exchange, mortgage, and bequeath them. The property remains vested in the social group from which individual tenants draw the title and guarantee of their occupation. This view is the natural one in an age when the occupation of the land was effected for the purpose of hunting or pastoral pursuits, but it is maintained for some time even when the tribe, as it were, strikes root in the soil through agriculture. The claim of kinsmen to keep strangers out as to land coming from the kindred and which ought to go back to the kindred is asserted in the primitive legal customs of various tribes, and, to speak only of European nations, we find individual ownership making way against it with some difficulty in the laws of the Greeks and of the Romans, of Celts, Teutons, and Slavs.1

One of the most powerful agencies which helped to overthrow tribal notions on this subject in medieval Europe was the influence of the law of civilized Rome when brought to bear on barbarian communities. With the help of the Church and of kings, who in consequence of their exalted position were quicker to realize the advantages of the new order, Roman ideas and forms made their way against ancient custom, and in the struggle in regard to the right of alienating land one of the most important steps was the introduction of written instruments framed on Roman patterns to convey title. The history of bócland in England is one of the varieties of the gradual transformation of land law in this direction,2 and it finds its parallels on the continent in the use of "formula"

1 I will content myself with referring to P. Viollet, Histoire du Droit Civil Français, 3e éd., 555 ff.; Brunner, Deutsche Rechtsgeschichte, 2 ed., i. 281; Blumenstock, Entstehung des Immobiliareigenthums.

2 On bócland see a paper of mine in a forthcoming volume of essays dedicated to Professor Fitting.

of Roman origin which provided the models for Frankish, Germanic, and Lombard conveyancing.

On the continent we notice, however, that by the side of the deeds of Romanistic origin other forms of transfer are developed, which remain in closer touch with native legal custom and are evidently more suited for country life than the elaborate and costly productions of royal chanceries and ecclesiastical scribes. In Frankish law, for instance, although the Salian Code does not even mention written deeds like those illustrated by Marculf or executed by Merovingian kings and bishops, it describes at some length a ceremonial process by means of which a person could pass over his household property to another. This was done in a solemn way, in the presence of neighbors, by the act of throwing a stick into the lap of a middleman, who entered into possession and acted as the master of the house by treating guests to a meal of porridge. Ultimately he delivered the house by throwing the stick into the lap of the intended donee. The procedure described is not merely a quaint local custom; it gave rise to a continuous tradition of legal formalities which seems reflected, among other things, in the surrender and admittance practices of English manorial courts.2 Evidently there was frequent occasion for the use of such ceremonial acts in every-day practice.

There can be hardly a doubt that similar customs obtained in Old English law by the side of the book-right conveyances initiated by royal privilege. It cannot be assumed that alienations and transfers of land were carried on exclusively by means of written documents in the case of the small freemen of Lincolnshire or East Anglia, who, according to Domesday evidence,3 had power to do with their land what they pleased. As, however, our materials are almost exclusively drawn from books, we need not wonder that we hear very little about the less "bookish" forms of transfer. They consisted probably in ceremonial actions before popular courts, among which the handing over of a sod must have played a prominent part. But otherwise there is a good deal of uncertainty as to the proceedings, and to this uncertainty part of the confusion

1 Lex Salica, 46. I do not see sufficient reason for limiting the meaning of the "affatomia" to donations mortis causa.

2 Villainage in England, 371.

3 Cf. Maitland, Domesday and Beyond, 257.

✦ Brunner, Zur Rechtsgeschichte der Urkunde, 188; Heusler, Institutionen des deutschen Privatrechts, 67 ff.

in the doctrines as to title in Anglo-Saxon law may perhaps be ascribed.

It is unfortunate under these circumstances that an interesting Old English document throwing light on the customary mode of transfer of land and suggesting obvious comparisons with the legal practices of neighboring nations should have been as good as overlooked by students. The document I mean belongs to the Peterborough evidence, to which we owe so much valuable information about Saxon and Norman antiquities, especially the Northamptonshire Geld Inquest, published by Ellis, and the Survey of 1125, published by the Camden Society. The same Codex 60 of the Society of Antiquaries in London, which contains these historical materials, gives an account of some dealings of the Bishop Æthelwold of Winchester directed towards the restoration of the Mercian monasteries, destroyed by the Danes, at some time about 963-972. Kemble published only one of the entries of this account,2—the picturesque story of the land confiscated by the king after the drowning at London Bridge of a woman guilty of practising pin-sticking charms. Another fragment from the same source had been given in the 1817 edition of the Monasticon Anglicanum. It treated of the resumption for Medhamstead of the old site of the monastery and one or two other estates. But the bulk of the account was published by W. de Gray Birch.1 In any case all the statements of this account have been before the public since 1893, and the fragments printed in the Monasticon and by Kemble since 1817 and 1848; but, unless I am much mistaken, their legal contents have never been commented on, although they have an evident bearing on several problems which have been lately much discussed by lawyers and antiquarians."

I do not think such complete neglect would have been justified, even if the document in question were proved to be a forgery. Some of the early forgeries are quite as valuable for institutional inquiries as genuine documents, because the falsifiers had to conform to existing legal rules and established formulæ in order to achieve their purpose. And, after all, it is not the particular

1 Introduction to Domesday, 184; Camden Society Publications, 1849, vol. xlvii.

2 Cod. Dipl., 591. Cf. Thorpe, Diplomatarium, 229.

3 Monasticon Anglic., i. 382; Thorpe, 243.

4 Cart. Sax., iii. 1128, 1129, 1130, 1131.

5 Al. Bugge has lately referred in passing to the shiremoot in Northampton. Vikingerne, ii. 315.