In a previous post, we described the ancient customs that led to the modern deed—what we might call the “magic” that still lies at the heart of modern legal practice. In the second installment in our little series about the history and magic of real estate law, we will look at another ancient custom that still impacts the way we practice real estate law today: the “beating of the bounds,” a practice of walking the parish bounds to instill them in the memory of the community.
Modern legal practice in the United States, even in a latecomer state like California, finds its roots in the complex history of English common law. Even after the practice of writing became relatively widespread, Europe remained a memorial culture: memory was the art and science of establishing truth (called the “ars memoria” in Latin). With few maps and little literacy, ancient cultures required practices that kept a “living memory” through actions and deeds. The practice of beating the bounds, which survives in a few places today, was one such method. (Just to cite the United States, vestiges of the practice remain in New Hampshire, Massachusetts, and Connecticut.)
Private ownership or “possession” as we think of it today is primarily a Roman concept (from possessiō). Anglo-Saxons conceived of land primarily in terms of the right to use and enjoy the land, with land being basically held in common under a complex system of tenure. So in a sense, you can think of legal title being more akin to Roman practice and equitable title as more akin to Germanic practice (see “Real Estate Transactions: Legal vs. equitable title.”)
This notion of community property explains the communal nature of the beating of the bounds: superimposed on Christian practice, the beating of the bounds was led by the priest of the parish, along with other officials of the church, accompanied by the inhabitants of the community. The parade would walk to each boundary marker, literally “beating” the boundary line, and especially specific boundary markers, with willow or birch branches, stones, or sticks. Despite the ritual and religious nature of the event, with hymns sung and prayers intoned, there is an impression that it was a raucous affair—with no movie theaters and in the absence of a good public execution, walking around your parish with your whole community hitting things with sticks was about as good as a party could get. Afterwards, there would be a “parish ale,” a feast…which included much ale. As Monty Python would put it, “And there was much rejoicing.”
However, the boundary lines weren’t the only thing being beaten. Young boys were at the heart of the ritual, because the boundaries needed to be instilled in the next generation, protected in the memories of those likely to live the longest. These unfortunates were turned upside down, their heads bumped on the boundary markers, or whipped at the markers, or sometimes tossed into the streams that marked boundaries. It was a brutal albeit effective mnemonic activity. As an explicitly misogynistic culture, men were at the heart of the ritual, but women also participated, and “fathers taught their daughters about property lines” (Brady 2019).
The beating of the bounds served a purpose that is still at the heart of real estate law today: ensuring that property lines are respected and preventing encroachment. To settle boundary disputes, land owners and their lawyers still sometimes “walk the wall,” following the surveyed bounds to resolve easements or lot line disputes, an air of mistrust and silent hostility pervading the activity. If I Dream of Jeannie star Larry Hagman and the religious group Meher Mount had walked their boundary line at some time after 1987, for instance, a great deal of hassle and courtroom drama could have been avoided. To be honest, beating the bounds sounds much more fun (although without the child abuse). So next time you need to do some maintenance to your boundary fence or settle a boundary dispute, consider bringing a six-pack and singing some hymns. It might keep you out of court.