Subject to Time


The law has a long memory – forget elephants, it looks far beyond any ordinary mortal span. Technically speaking, its memory kicks in on 3 September 1189.[i] But even the best memories suffer from deterioration. With such a lengthy span to cover, it is an inevitable commonplace of legal history that facts become lost. Records of rules or events might never be made. Or, if records are made, these might not survive or survive only partially. Those versed in the law also pass on, and might be replaced by others who sing the verses rather differently.

Sometimes, though, knowledge can be lost surprisingly quickly, without any of the standard traumas of intervening centuries. And this sort of loss can occur even in the modern context.

Take sec. 184, Law of Property Act 1925. This provides that:

‘In all cases where … two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the court), for all purposes affecting the title to property, be presumed to have occurred in order of seniority …’

This frames what is known as a ‘commorientes rule’ – a provision to break the impasse where the law must (in particular for succession) know the sequence of two deaths, but the facts on the ground do not allow for that sequence to be known with sufficient certainty. Classic nineteenth-century examples of such scenarios in English law include families lost by shipwreck while emigrating,[ii] or killed as colonial occupiers in periods of violence.[iii] Section 184 looks to resolve such scenarios simply and clearly with an age-based, bright-line rule.[iv]

Within the section, however, the qualification ‘subject to any order of the court’ has caused a degree of difficulty, despite even now standing only around a century from the Act’s passage (and the rule’s slightly earlier first appearance as sec. 107(3), Law of Property Act 1922). In truth, this portion of the provision was already considered difficult within around 20 years.

In Hickman v Peacey, a seminal decision on sec. 184 and still our leading authority on the rule, Lord Simonds had ‘tried in vain to give any reasonable meaning and effect to the parenthetical words’.[v] They were ‘obscure’ per Viscount Simon LC;[vi] his Lordship ventured an attempt at their meaning ‘without any degree of confidence’ and conceded even then that the words wouldn’t be well suited.[vii] His Lordship’s idea was that the words account for situations where ‘sufficient evidence as to the respective ages of the deceased persons was not forthcoming’ – an issue which certainly had been discussed elsewhere for commorientes rules,[viii] but one of absolutely vanishing practical relevance given modern recording systems.[ix]

An interesting feature of this discussion is the confidence of the court as a whole that, though they none of them could claim to understand the words in question, none of the judges expressed any doubt over their irrelevance to the dispute before them.[x] To some extent, the words did potentially matter – arguments made by the parties suggested quite different effects.

For the appellant, it had been suggested that the words did no more than leave open recourse to the courts and a departure from the statutory presumption where an executor might not be sure that the facts were ‘uncertain’ in the required sense:

‘The words “subject to any order of the court” were put in because one of the objects of the Act was to facilitate the administration of estates. The legislature assumes that there are some cases when there is so much uncertainty that opinions may vary. If there is prima facie uncertainty the executors may proceed to administer on the footing of s. 184, but these words leave it open for persons interested to go to the court for its order.’[xi]

This draws on what is certainly the key reason for introducing sec. 184 in general (to prevent the costly need to apply to court for orders to administer estates in such situations of uncertainty[xii]) and is very similar to the terse explanation for the specific parenthetical words given in a leading 1932 commentary on the statute: ‘it is still open for the court to hold as a fact that the deaths were simultaneous, or occurred in any particular order’.[xiii] The interpretation is difficult, though, as it makes the words themselves pointless. If the court can determine a chronology, then the matter is simply not ‘uncertain’ and the statutory presumption is plainly inapplicable on its own terms. This is obvious without extra, indirect wording, as is the fact that an executor or interested party could seek the court’s ruling if applicability is unclear.

By contrast, for the respondent it was daringly said to be ‘impossible to explain the words … save that they confer a discretion on the court.’[xiv] This would do an awful lot to undermine the firmness of the age-based default sequence and the speeches of their Lordships are clear that no such broad discretion is suggested by the words (albeit of little else in relation to them). As with other areas of law dealing with instances of intractable factual uncertainty,[xv] it seems critical that the courts can facilitate a definitive answer to a dispute, and that the integrity and authority of the law not be depleted by an inevitable failure to deal with impossibly problematic circumstances.

As to the textual mystery, though, one answer does seem to be available to give meaning and relevance to the words ‘subject to any order of the court’; one apparently lost to memory and well-hidden from any (frankly, normal) person not very intimately versed in commorientes scenarios and rules. Unfortunately, though, this answer is a little underwhelming in the mystery-solving stakes; a diminutive man behind the curtain, to whom Dorothy has indeed paid no attention.

To give purpose to the words, we need a provision conferring on the court a power to make an order, where that order might stand in conflict with a general resolution (based on the deceased’s ages) of an uncertainty as to a sequence of deaths in cases affecting title to property. Just such a power actually features in the same suite of property legislation from 1925. Section 44, Trustee Act 1925 (a provision apparently not cited in Hickman at all) allows for the court to make an order to vest (an interest in) land in any such person and manner as the court finds appropriate to deal with one of the several difficulties that the section contemplates. Those difficulties include, inter alia (at nr. iii), it being ‘uncertain who was the survivor of two or more trustees jointly entitled to or possessed of any interest in land’. Unlike the sec. 184 rule, this Trustee Act provision was not novel; such powers can be found earlier, e.g. in sec. 8, Executors Act 1830.[xvi]

Without the carve-out in sec. 184, this portion of sec. 44, Trustee Act would surely have been left devoid of any significance – the problematic uncertainty would have just been resolved by the new general rule and no discretion would have been reserved to the court in relation to a vesting order in the trustee context. (Our 1932 commentary unhelpfully just includes a cross-reference for its reader, giving no actual guidance as to application of these otherwise inconsistent sections: ‘As to the presumption of survivorship: L.P.A., 1925, s. 184.’[xvii])

Is there, though, aside the niche status of the sec. 44 rule (I myself have not found an instance of a sec. 44, nr iii situation), any reason why this possible role for the words in sec. 184 would have been lost to recall, and this as early as the 1940s? Well, consider the statutory regime. The sec. 44 rule to be accounted for featured in the Trustee Act. Its forerunner Executors Act rule was repealed at the same time, but through the Administration of Estates Act. Meanwhile, the general commorientes rule for property title had found a home in the Law of Property Act 1925. With none of the relevant single provisions cross-referencing each other, or explicitly drawing any framework together, a broader picture is inevitably more difficult to draw. This disparate framework for covering these commorientes issues in itself no doubt mattered, no doubt also reinforced by the attentions of property lawyers being drawn by more significant features of the revolutionary mass of new legislation. In perhaps the most ambitious example of codification in English law, and in the absence of a sophisticated commentary tradition in continental style (where even such intricate issues might be meticulously investigated), coherent understanding perhaps hit the limits of manageable practice.


Andrew J. Bell

University of Bristol Law School

January, 2023



[i] Statute Quo warranto (1290); J.H. Baker, Introduction to English Legal History, 5th edn (OUP 2019) p. 32.n. 92.

[ii] E.g. Wright v Sarmuda (1815) 2 Phil. Ecc. 266 n. c).

[iii] E.g. In the Goods of Ewart (1859) 1 Sw. & Tr. 258.

[iv] See further e.g.

[v] Hickman v Peacey [1945] AC 304, 346-47.

[vi] Ibid., 316.

[vii] Ibid., 316.

[viii] E.g., from France, C. Demolombe, Cours de Code Napoléon, vol. 13 (1879), §§ 104, 105.

[ix] A centralised registration system for births was first introduced by the Births and Deaths Registration Act 1836.

[x] See e.g. Hickman v Peacey [1945] AC 304, 316 (Viscount Simon LC), 328-29 (Lord Wright).

[xi] Ibid., 309.

[xii] Joint Select Committee of the House of Lords and the House of Commons, Report on the Law of Property Bill, House of Commons Papers 1920, vol. 7, p. 537.

[xiii] B. Cherry, D. Parry & J. Maxwell, Wolstenholme & Cherry’s Conveyancing Statutes, 12th edn (1932), p. 548.

[xiv] Hickman v Peacey [1945] AC 304, 311.

[xv] Cf. e.g. and

[xvi] 11 Geo IV & 1 Wm IV, c 60. This seems to represent the earliest statutory regulation for commorientes in England and Wales. See also e.g. secs 25, 26 (iii), Trustee Act 1893 – repealed by sec. 70, Trustee Act 1925 (via Sched. 2 to that Act).

[xvii] Wolstenholme & Cherry (above, n. 13), p. 1353. No cross-reference goes the other way, however, to alert a sec. 184 reader to sec. 44.


Courtesy, curtesy and houses of cards

In a few weeks, I will be amongst the speakers at an online launch for the collection of papers by the late David Sellar, edited by Hector MacQueen. My job is to give some thoughts about the importance of Sellar’s work and ideas, from the perspective of English legal history.[i] There is a great deal in the book which would be of relevance to this theme, but the first thing which leapt out at me, looking over the collection, was an old friend – his article on courtesy.[ii] Courtesy, or ‘tenancy by the courtesy of Scotland’ was the life interest (liferent) which a widower might acquire in land brought to a marriage by his wife, on certain conditions, and was part of Scots common law from the medieval period onwards (only finally being removed in the twentieth century). A very similar institution existed in the common law of England: ‘tenancy by the curtesy of England’. The reason this Sellar article is an ‘old friend’ is that it is something I have consulted in at least two different projects of my own. The first of these was work leading to an article on medieval English curtesy; the second a very recent project  – a chapter on intractable factual uncertainty in the early stages of life, for a collection on intractable factual uncertainty more generally. Sellar’s article was very useful for both of these. I think that it also has implications for the way in which those working on English legal history conduct their research.

The central focus of the article is a particular dispute at the highest levels of fourteenth-century Scots society, and, as one would expect from an expert on the genealogy and heraldry of Scotland, we get a good account of the characters involved.  The opposing parties were James Douglas and Thomas Erskine. James Douglas (JD), one of the many holders of that name who crop up in the history of Scotland, would later be known as Sir James Douglas of Dalkeith. He was nephew and heir-male of William Douglas of Liddesdale (WD: there are quite a few William Douglases to deal with as well, our William was killed by another William Douglas, one who would later be first earl of Douglas). The fact that JD was heir-male meant that on WD’s death, he acquired the lands which were limited to the male line. The other lands went to WD’s daughter, Mary. Mary’s marital history is quite interesting (there was an annulment in there) but the key fact for these purposes is that she was married to Thomas Erskine (TE), at some point before 1367. Mary died giving birth to their child, and the child – to put it neutrally – did not survive. JD was Mary’s nearest heir (and if this took full effect, he would ‘scoop the pool’, taking all of the land previously held by WD. TE, however, had different ideas.

TE claimed to be entitled to a life interest in the unentailed lands, which Mary had held, on the basis of tenancy by the courtesy of Scotland. This claim could only succeed if TE passed the test of having produced a child with his wife, Mary, the child having been born alive. TE said that this had happened; JD said it had not. The case, then, came down to a dispute over whether a child, now dead, and certainly dead soon after its birth,  had ever been alive. This was not an easy matter to determine – what was ‘alive’, and how could the presence or absence of life be proved? You can see why this sort of question has featured in my contribution to the ‘intractable factual uncertainties’ project. Different legal systems came up with different answers to this question, if it could not be avoided, but the way that Scots law dealt with this one is both unusual and more exciting than one might expect: the thing was to be tried by judicial combat, and this was ordered in 1368.

Trial by battle has long been a favourite topic for my undergraduate (English) Legal History classes. It garnered even more attention than usual, recently, as a result of the film The Last Duel. Generally, it is discussed most often in the ‘criminal’ context, but it was also a possibility in relation to certain land actions. The idea, of course, was that the truth of a matter was submitted to the judgment of God: God would favour the person[iii] with the just cause.

Those working on the history of English common law are familiar with the idea that trial by battle might apply in the old, formal writ of right, though there was a generally-more-palatable alternative in the grand assize. It does not seem entirely surprising that it was thought that the solemn question of entitlement to land could be decided by battle – after all, land disputes in a non-judicialised setting would quite probably be sorted out in this way. The use of battle to determine a more limited factual question, such as whether a child was ever alive, is, however, unfamiliar. Evidence relating to such determinations in English common law comes from the less solemn ‘petty’ or ‘possessory’  assizes, which did not purport to make a holistic decision about the ‘right’, but to resolve a more limited dispute. This English evidence  shows the use of groups of jurors, perhaps drawing on the expertise or observation of those present at the birth (who might even be – shock, horror – women!). The Scots difference – the late resort to battle – is, therefore, really interesting. For those looking forward to clashing armour and swords, I am afraid that the case was a little anti-climactic: although there was serious preparation, and purchase of all manner of warlike equipment, in the end the dispute was settled. Nevertheless, the fact that battle was even in the running as a way of deciding such a delicate question of newborn life is fascinating.[iv]

As well as this big difference between systems on the matter of battle, the similarities between the English and Scots law in this area should be borne in mind. The structure of courtesy/curtesy was broadly similar in both jurisdictions, both named it in ways which ascribed particular generosity to their own system, and both made the widower’s right depend on having fathered a live, legitimate, child. Furthermore, in both cases, the test for live birth was expressed in terms of hearing the newborn cry ‘within four walls’. This does not come up directly in the Erskine-Douglas documentation, but there is a splendid quotation in Sellar’s article, from Skene, which mentions the need for the child to make a sound, using some fantastic language – ‘cryand’, ‘brayand, squeiland, or loudlie cryand’.[v] I particularly like ‘squeiland’.

Such similarities point to a common origin, and a degree of borrowing. Questions of origin of rules and institutions are certainly important and interesting, but comparison beyond the point of origin is at least as crucial. In the area of c[o]urtesy, as in many other areas, there are large gaps in our knowledge. Despite the relative wealth of records of practice for England as opposed to Scotland, my study on curtesy still left me with substantial uncertainties as to what was going on between the end of the thirteenth century and the early modern period. In particular, what was the status of the sound test during this period: at what point did a less prescriptive requirement for evidence of such signs of life as would satisfy the jury become usual? Where there is an analogous piece of law in Scotland, as is the case here, in a case of insufficient evidence, it seems not inappropriate to consider it as something which can help us to ‘fill in the gap’. In doing this, we must, of course, be alive to differences in social and legal context, and the task of using two less-than-secure sets of evidence to hold one another up can be a delicate task, reminding me of the process of creating a house of cards (a favourite childhood activity of mine), leaning one card against the other so that both stay up, at least for a while. For those of us with a lack of training in Scots law, it can feel a bit of a risk to venture into this sort of comparison (and I am fully prepared for some friendly correction of my understanding of matters from ‘North of the Border’). Nevertheless, there are good books and articles enough on Scots legal history to put a decent understanding within the reach of the most insular (if England was an island …’precious stone set in the silver sea’ and all that)[vi] English common lawyer. Not making the effort is not only ‘missing a trick’, in terms of getting at the best possible understanding of both systems, but, frankly …



Gwen Seabourne



Image – c/o Wikimedia Commons.




[i] I confess to enjoying the fact that the person invited to talk about English law is, in fact, a bit of a Cymraes. For England, see Wales, for once …

[ii] W.D.H. Sellar, ‘Courtesy, Battle, and the Brieve of Right, 1368’, in H. MacQueen (ed.), Continuity, Influences and Integration in Scottish Legal History (Edinburgh, 2022), c. 14, originally ‘Courtesy, battle and the brieve of right, 1368: a story continued’, in W.D.H. Sellar (ed.), Miscellany II (Stair Soc. vol 35, 1984) 1–12.

[iii] Well, ‘man’ – this was a ‘men only’ procedure.

[iv] It is important to bear in mind, also, that the high social status of the parties contributed to what was seen as the acceptability of trial by battle. As Sellar noted, this combat was to take the form of a ‘duel of chivalry’, albeit over a question of land rights.

[v] Sellar, 301-2; Skene, De Verborum Significatione (1597)  sv “Curialitas”. Quite fascinatingly, the Skene quotation makes mention of non-human noises, just as a passage in Bracton IV:361 does, but, while Bracton distinguishes the sound of a human child and a monster quite clearly, Skene muddies the waters a little, musing that the same word is used for both children and horses, harts ‘and uther beastes’.

[vi] Shakespeare, Richard II, Act II, Scene I.

Considering the appeal of mayhem

At the moment, I have the great privilege of a year’s research leave from my job in the Law School.  It is wonderful to be able to make some progress on a number of projects which have been gathering metaphorical dust during the last couple of years, during the constraints of the pandemic and the challenges of life and teaching in this period. So far, I have spent time working on ‘bastardy’ and ‘petty treason’, and will be writing up that work more formally later in the year. Now, though I am turning my research energies in another direction, looking at the medieval appeal of mayhem.  As I do so, I thought it might be appropriate to write a quick blog post giving an outline of the area, and a few thoughts on why I think this is something worth examining.

So … explain the appeal of mayhem

Well, the appeal of mayhem was a legal action like this one, from a 1491 legal record, in which (to summarise) Walter Chapman prosecuted Thomas Preston and three others for having attacked him with staves and ‘clubbes’, hitting his legs (specifically his lower legs) and causing him to ‘lose the use’ of them. Assuming that there was such an attack, Walter, clearly, survived it (he alleged that it had happened ten years before). Now, he was seeking compensation for his injuries.[i]

The appeal of mayhem was a particular sort of legal procedure, for a particular sort of non-fatal injury. It was not an attempt to overturn a decision (a more modern understanding of ‘appeal’), but an individual prosecution. This appeal procedure was available in relation to serious criminal offences, including mayhem. The consequence of a successful appeal of mayhem was, a financial penalty, and a compensation payment to the successful accuser, though sources from the thirteenth century onwards are rather fond of noting that, in even earlier law, the principle of ‘member for member’ applied, condemning the convict to a mutilation fitting the crime.

So much for ‘appeal’; what is ‘mayhem’? It is now a word with a broad scope. It can suggest general violent disorder. Sometimes it is also used in a slightly softer sense, to indicate fictitious and twee transgression (see the sneering term ‘Mayhem Parva school’ for rural murder mysteries). Moving even further to the unthreatening end of its spectrum of meaning, it doesn’t strike us as inappropriate for use in the naming of the house band on The Muppet Show (Dr Teeth and the Electric Mayhem for anyone not versed in high culture), or a contestant on RuPaul’s Drag Race (one Mayhem Miller – thank you, internet). For the legal historian, however, the word also has a very specific meaning – a particular sort of non-fatal injury.


Welcome to our new blog

Hello and congratulations on finding the new blog of the Centre for Law and History Research! Based in the School of Law, University of Bristol, we are academics specialising in different aspects of the history of law, both as teachers and as researchers. We are interested in  the study of law in particular eras, but also in the development of legal ideas and practices over long periods, and in matters from contractual interpretation to conscientious objection, flogging to frustration, patents to petty treason.

The Centre had its launch event early in 2020, and shortly afterwards, life and work took an unexpected turn, with the onset of the global pandemic. The extended lockdowns and restrictions have made us conscious of the importance of online communication between like-minded scholars, and we have decided to set up this blog to report on our work and activities. We have some interesting things in the pipeline, including an exciting joint venture with colleagues at the Universities of Cardiff and Exeter. All will be revealed in due course …


Gwen Seabourne (Centre Director, 2020-21).