commonly treated as a wapentake. The varying designation of the division by a Saxon and a Scandinavian term, it may be said in passing, is in itself characteristic of a district which had been strongly held by the Danes, and where Scandinavian influence. manifests itself in a number of facts.1 Combined moots of three hundreds are mentioned twice. One of these was held at a place called Withred's Cross, and, to judge by the village where the land was sold and the names of the witnesses, it must have been a court held jointly by the hundreds of Naresford, Wilebroc, and Pochebroc.2 The same court was seemingly meant in the case of the purchase of one hide and a half in Swift (?). It is said to have met at Oundle, in the hundred of Pochebroc.3 Oundle is mentioned in two other cases as the seat of a moot of eight hundreds. This moot is also said to have been assembled once at Wermington in the hundred of Wilebroc. The jurisdiction over eight hundreds is one of the great features of the franchise of Peterborough in feudal times. The abbey held a court for the hundreds of Wilebrook, Pochbróc, Naresford, Hocheslau, Ordinbarrou, and the double hundreds of Næsseburgh and Neveslund." The "eight hundred" franchise is insisted on in the spurious charter of Edgar entered in the MS. of the Chronicle, and there may be some doubt whether the references to the eight hundreds may not be misplaced corrections of the twelfth century copyist in instances where his authority, the original memorandum, spoke of moots of three hundreds, as in one of the Oundle cases (VIII instead of III). But similar combinations of several hundreds occur elsewhere, quite apart from any ecclesiastical franchise. The matter must be left to antiquarians to decide: for our purpose the courts of three hundreds are as characteristic as a court of eight. 1 It is noteworthy that the numerals presenting combinations are often expressed in the Northamptonshire geld roll according to the Danish and not the English system. Spelhoh hundred, e. g., is said to contain "foursydene tuenti hydes — firsindstyve," or "firs," as a Dane would say nowadays. The Old English would have been hundeahtatig or, shortened, eahtatig. Upton grene is numbered as "fifsydene twenti hides"-"fems." Ellis, Introduction to Domesday, 184 ff. 2 Cart. Sax., iii. 370. 8 "Ib. Ealdulf ab and Alfuold bohton oder healfe hyde æt Swifte mid eahte pundun. ponne sind festermen . . . on peræ preora hundred gewytnesse into Undelum." P. 369 (Beringafeld); p. 371 (Badingtun; Lundingtun). 5 Cf. Bridge, Hist. of Northamptonshire, ii. 489 a. 6 E. g., a moot of ten wapentakes in Lincolnshire. Bracton's Notebook, pl 1730. Cf. Chadwick, Studies on Anglo-Saxon Institutions, 249 ff. In one remarkable case the witnessing body is the shiremoot assembled at Northampton under the designation calles heres gemót on Hamtone, the moot of the whole here at Hampton. The Scandinavian couleur locale of Northamptonshire is drastically expressed in these words. The Danish here, though subdued by Edgar, had still retained its peculiar cast and name, and it is only natural that many features of legal custom within its jurisdiction should receive their explanation rather from Scandinavian than from Mercian or West Saxon law. Once the memorandum gives the text of a notice as to an exchange of lands between Bishop Æthelwold and Wlstan "Uccea," in consequence of which Peterborough Abbey got an estate at Ailsworth in the hundred of Næsseburgh. The transaction was witnessed by the king and his witan, and recorded in a written declaration (swutelung) of a kind which is not uncommon at that time.1 The action of these assemblies is described sometimes as "witnessing," but in two cases, namely those of the shiregemot and of the wapentake, the moots "stand pledge" (boruhhand) to the transfer of land. The combination of standing witness and standing security reminds us of a similar accumulation of legal features in the case of written deeds, in which the witnesses (testes) appear usually as consenting and corroborating parties.3 It is not merely an "insinuation" as required by later Roman law, a registration by an assembly wielding local government power. The publicity of the proceeding and its committal to the memory of the members of the court were certainly an important feature. But the shiregemot is distinctly said to vouch for land being "clean," and this shows that it decided as to the title itself. This is easily explained by the fact that the public moots were the ordinary centres of voluntary jurisdiction, and at the same time had to lay down the law in case of litigation. The best way to be on the right side in case of the latter was to obtain from the very beginning a declaration of the moot.5 1 Cart. Sax., 371, n. 1131. 2 P. 369: "and he bohte æt Orme XII æceras and was Vlf borhhand, and Eincund and sidoon eal wepentac." 3 Cf. Maitland, Domesday and Beyond, 250. 4 Girard, Manuel de Droit Romain, 937. 5 An interesting example of such a preliminary declaration is afforded by the case described in King Alfred's will, Cod. Dipl., 314: “Ɖa lædde ic Aðulfes cinges yifegewrit on úre gemót æt Langandene, and hit arædde beforan eallum Westsexna Towards the close of Anglo-Saxon history it appears as a rule that any change of land ownership should be made known to the county or to the hundred. The hundred gemóts and the shires at the time of the Domesday Survey constantly refer to their having received, or not received, writs, or signet, or message, in regard to the tenure of such and such an estate, and some of these references apply to the reign of King Edward. This means that even books and royal commands had to be produced before the shire or the hundred gemót in order to secure title. The inference would be that folk right transactions were even more bound up with formal acts and declarations in public courts. In this connection it is impossible to disregard the fact that publication at a thing, "tinglysing," was one of the requirements for the validity of all transactions conferring land ownership in Scandinavian law. The main point in conveyancing in Denmark, Norway, and Sweden was to bring the matter through the popular court in order that there should be a chance for the assertion of any interests hostile to the proposed transactions, and that its ultimate conclusion should be witnessed and declared to be according to law by popular authority. In a sense this form presents the exact counterpart of the action of the public notary in countries where there existed the institution of the public clerk, watching over the regularity and soundness of transactions. In this case the place of the authorized notary is characteristically taken by the gemót or thing and by its presiding officer, the hövding, to whom the sheriff or hundredman would correspond in English practice. It would be impossible to say, however, on the strength of our evidence, how far the co-operation of the moot was obligatory in England in the second half of the tenth century. The Medhamstead memoranda would, if construed strictly, speak against its necessity, because, although they evidently lay great weight on the presence of the court, they mention it expressly only in nine cases out of thirty-four. It might be pleaded perhaps that the witum. Da hit aræd waes, da bæd ic hy ealle, for minre lufan, and him min wedd beád Sæt ic hyra næfre nænne ne oncuðe forðon de hy on riht spræcon, and dæt hyra nán ne wandode ni for minum lufan ne for minum ege, dæt hy ðæt folcriht árehton . . . and hy ða ealle tó rihte gerehton and cwadon, dæt hy nán rihtre riht gepencan ne mihtan, ne on dam yrfe-gewrite gehyran. Nu hit eall ágán is on dæron oð dine hand: Jonne du hit becwede and sylle swá gesibre handa swá fremdre, swaðer de leófre sy." 1 Dom. B. i. 50, a (Tederleg); 59, b (Spersolt); 60, d (Ollantune). 2 E. g., Amira, Nordg. Oblig., i. 401 ff.; ii. 331 ff. only courts spoken of are the extraordinary and more important ones, a single wapentake being referred to only once, while all the other cases refer either to moots of double or treble hundreds and even to larger bodies. But even should we waive such a special pleading, which, after all, would only open the way to a possible solution, but not establish it as the only possible one, there remains the analogy with the Scandinavian customs which admit of publicity and legal confirmation in cases where the thing was not present. A very Norwegian law empowered people to make valid transactions before a ship of at least thirteen benches of oarsmen. common substitute for a thing was a gathering at a banquet; in sparsely populated Iceland five men were deemed to be a " flock,”1 and were empowered to witness transactions. Altogether the fastar and official witnesses acted as sufficient representatives of the neighborhood, and of the thing when this last was not present. In later law the lysing had to be gone through apart from, and often after the performance of the transfer itself. But at an earlier stage the festermen evidently acted as a substitute for the official ring of the moot, a very useful contrivance at a time of bad roads and rare sittings of the popular courts. When we collect all the features and assign its right value to the evidence of the Anglo-Scandinavian customary process supplied by the Medhamstead memoranda, hardly a doubt is left that the different customary practices observed in transferring land proceeded from very ancient roots. They are characterized in various degrees by three main traits: symbolic tradition on the part of the principal; proclamation of the validity of the transfer by sureties; and occasional confirmation of the proceedings by the popular court, the gemót or thing. And the foregoing observations, if accepted, can hardly fail to impress on the mind a sense of the close affinity between Old English and Scandinavian law. When both elements met, as they did in Northamptonshire, they reacted powerfully on each other just because they were based on very similar fundamental conceptions. OXFORD. Paul Vinogradoff. 1 Gulathing's Lov, 71; cf. Amira, ii. 335. CONSTRUCTIVE TRUSTS BASED UPON THE BREACH OF AN EXPRESS ORAL TRUST OF LAND. Dedicated to Professor Langdell. N express trust may arise in any one of three ways: AN 1. The owner of property may undertake to hold it in trust for another. 2. The owner of property may transfer it to another, either in his lifetime or by will, to hold upon trust for a third person, or for the grantor himself if the conveyance is inter vivos. 3. A purchaser may procure the conveyance by the seller of the property purchased to a third person to hold upon trust either for the purchaser or for some other person. If the trust is of land and oral, and the trustee, after undertaking the trust in good faith, declines to perform it, what are the legal relations of the trustee, the cestui que trust, and the creator of the trust? In the face of the statute of frauds, which provides that in the absence of a writing the trust shall be "only void and of none effect," equity, it is clear, cannot compel the performance of the express trust. But does it follow from this that the trustee, who has broken his promise, is subject to no legal obligation whatever? In answering this question it will be helpful to consider separately each of the three classes of express trusts already described. I. Declarations of trust by the owner. The owner of land, who orally declares himself a trustee of it, may make this declaration gratuitously, or for value received. If the declaration of trust is gratuitous, and the trustee repudiates the trust, sheltering himself under the statute of frauds, that is the end of the matter. The express trust being invalid, the cestui que trust fails to make the expected gain, and the trustee does not suffer the anticipated loss. The old status quo being unchanged, there is no basis for any other claim against the trustee. If, on the other hand, the declaration of trust is for money received or other consideration, the situation is different. In this case, as in the other, by force of the statute the cestui que trust |