[375] The Norman Code divides Pledges into, simplices, and debiti retinentes. An example of the former kind is the following—Ego plegio A. quod reddat B. decem solidos. The effect of such a pledge was, that it ceased with the life of the person entering into it, and descended not upon his Heirs. Neither was there any difference, in this respect, if the pledge was given for the appearance of another in any suit. With respect to the latter kind of pledge, the Term was employed, when the person entering into it made himself answerable for the Debt, and thus stood in the twofold capacity of Debtor and pledge. The effect of this seems to have been, to release the original Debtor, and to render the Representatives of the person entering into it liable to answer it. (Le Grand Custum. de Norm. c. 60. 89. 90.)
[376] The same Rule is laid down in the Norman Code: but the subject is there treated far more diffusely. It seems, by that Code, to have been an obligation imposed upon the Homager, by his tenure, to become pledge for his Lord’s Debts to the extent of a year’s Rent—to become pledge for his person, if in prison—for his prosecuting a suit, or appearing to it, &c. &c. (Grand Custum. c. 60.)
[377] The Regiam Majestatem, on the contrary, lays it down, that he can recover, (L. 3. c. 1.)—a rule that is certainly more consistent with Justice. On the other hand, the Mirror coincides with the text. (c. 2. s. 24.)
[378] Mutuum—quia, ita a me tibi datur, ut ex meo tuum fiat. (Justin. Instit. L. 3. t. 15.) Vinnius terms this bella allusio, non vera vocis originatio. Dr. Wood observes, as to the Term itself, it hath no one particular name in the English language.
[379] With this explanation the Regiam Majestatem (L. 3. c. 2.) and the Grand Norman Custumary (c. 113.) literally coincide—though it differs from that given by Littleton, and followed by Coke, Craig, and Blackstone. (Co. Litt. 205. a. 2 Comm. Bl. 157. Craig Jus Feud. L. 2. D. 6. s. 27.) What is the more remarkable, Lord Coke expressly contrasts the mortuum vadium to the vivum vadium. Vivum autem dicitur vadium quia nonquam moritur ex aliquâ parte quod ex suis proventibus acquiratur. But assuredly, if the term mortgage is to be collected from its forcible contrast to these words, Glanville’s explanation is infinitely preferable to that given by Lord Coke.
[380] Existente termino. This is a palpably false reading—it should be, elapso termino, the term being expired, an expression familiar to Glanville. This suggestion is sanctioned by the Reg. Maj. “the day being bygone,” (L. 3. c. 3.)—by the expression of the text ad terminum in the sentence immediately preceding—by the words of the Writ in the next chapter, “a term which is past”—and, lastly, by a passage in the [Eighth Chapter of this Book], where our Author expressly lays it down, that, before the time fixed for payment, the Creditor cannot claim the Debt. Yet is the reading existente termino preserved in Mr. Houard’s Edition of Glanville, an Edition frequently, but not always, more correct than any of those printed in this Country.
[381] Sir Edward Coke, having been led by his subject to treat of conditions, refers to the present Chapter of our Author. From such plain and simple materials did the complicated doctrine of conditions draw its primary principles!! (Co. Litt. 201. b.)
[382] “In Glanville’s time,” says Sir Wm. Blackstone, “when the universal method of conveyance was by livery of seisin, or corporeal tradition of the Lands, no gage or pledge of Lands was good, unless possession was also delivered to the Creditor”—and, having referred to this part of our Author, he observes, “And the frauds which have arisen, since the exchange of these public and notorious conveyances for more private and secret bargains, have well evinced the wisdom of our ancient Law.” (2 Bl. Com. 159.)
[383] This may be accounted for by recollecting that Usury itself, though viewed in a criminal light, was not expressly prohibited. (Ante L. 7. c. 16.) Nor was it punished, if the party amended: but, if he died in the crime, the act had then reached the point of criminality—the offence was complete, and the punishment followed. But, until that moment arrived, Usury, in strictness, was an act rather approaching to a crime, than actually amounting to it. The reasoning was founded upon principles no less artificial than false—the death of the party being purely accidental, and the crime itself being complete, without any reference to such accident, the very instant the party received the usurious remuneration. The doctrine of the Regiam Majestatem, in unison with this reasoning, and contrary to the text of Glanville, expressly forbids a Mortgage, because it was a species of Usury. (c. 5. L. 3.)
The Reader will meet with some curious disquisitions in the Dial. de Scacc. (L. 2. s. 10.) where he will find the doctrine of the text illustrated in the true spirit of the times.