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PART 3: REAL PROPERTY - Theodore Frank Thomas Plucknett, A Concise History of the Common Law 
A Concise History of the Common Law (Indianapolis: Liberty Fund, 2010).
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Real property law has been the battle-ground in most of the great struggles in our history. One of the bitterest conflicts between Church and State arose out of Henry II’s determination that patronage was “lay fee”, that is to say, real property amenable to the jurisdiction of the royal courts. Even earlier, the great social revolution which created feudalism, created thereby the foundations of the law of real property, and when the equally great revolution, late in the middle ages, replaced feudalism by the beginnings of modern society, we find corresponding changes in the law of land. Public law, too, owes much to the principles first worked out in connection with land. The barons won a notable victory against King John when they established the inviolability of the freeholder’s land, and the law of freehold served the cause of freedom centuries later.
It is in terms of real property law that such social factors as the rise, and still stranger decline, of serfdom must be expressed, while the emergence of a mercantile community had important results which even went so far (as we have already seen) as the creation of peculiar mercantile estates in land. The long and obscure story of settlements and disentailing devices reflects not only social problems and the difficulty of expressing the family itself in terms of real property law, but also illustrates the growth of land as a commodity with a market value, and shows that land (especially in the eighteenth century) was now the object of intensive exploitation which required the sinking of considerable capital sums—and often this could only be achieved by selling or charging settled land. Corresponding difficulties existed even on the purely physical side, and so there came the enclosure movement which rapidly changed the face of the countryside. An economic history of the law of real property has not yet been written, and this is not the place to attempt so difficult a task; nevertheless, some reference to economic and social factors must be made in the pages that follow, even if they fail to receive all the weight to which they would be entitled in a fuller discussion.
It is universally admitted that the great historical feature of our law of real property is its feudal character, and that in order to understand the reasons which brought about a good many doctrines of real property law it is necessary to regard the matter from the feudal point of view. Something, therefore, must be said as to the origin and characteristics of feudalism.1
If we had to sum up the social characteristics of the present age in one word, that word would probably be “capitalism”. If, on the other hand, we wish to describe the early middle ages in a similar way, we shall have to say that they were feudal. “Feudalism”, in fact, is merely a vague and general word describing the social structure of Western Europe from the tenth century onwards. It is beyond doubt that the word “feudalism” is just as vague and occasionally inaccurate as is the word “capitalism”. Society at the present day contains a number of different characteristics, some of them being inconsistent with a complete capitalism. When we speak of the present age as capitalistic it is perfectly easy to make all the obvious exceptions which are necessary in order to make the statement approximately true. There is no difficulty in doing this because we are perfectly familiar with the conditions of our own age. When we come to mediaeval times, however, the same problem arises in a more difficult form. At no time were the middle ages completely and consistently feudal, any more than our own age is thoroughly capitalistic. The difficulty, of course, is to trace the exceptions to the more general feudalism in view of our unfamiliarity with mediaeval conditions. It must be constantly remembered, therefore, that “feudalism” is a vague word of modern origin which was completely unknown in the ages to which we apply it, and that it is nothing more than a rough generalisation upon the character of mediaeval society. It must likewise be remembered that mediaeval society varied considerably in different years and in different places, and that it is very difficult to find a state which continued for an appreciable length of time under strictly feudal conditions.
FEUDALISM: LORD AND MAN
There are a few characteristics which remain fairly constant through the feudal age, and which may be regarded as typically feudal. In the first place a prominent feature of it is the relationship of the lord and man. In its personal aspect this was felt to be a solemn and sacred bond; it was accompanied by an impressive ceremony called homage, and once that ceremony was performed it was hardly possible to dissolve the relationship. The obligations of mutual aid and support which grew out of it may perhaps owe their sacred character to the fact that they were so absolutely necessary to the preservation of society at the time when the institution arose. With a small and scattered populace, organisation became difficult, especially with the absence of all the modern mechanical devices which have made the power of the State paramount. Where a modern nation in a week or two can mobilise an army of millions of conscripts, the feudal age had to rely upon the relationship of homage to secure the attendance of its military forces. Society depended to a very great degree upon the fulfilment of the obligations arising out of homage, and therefore surrounded the ceremony with every available religious and social sanction. Even then, under some circumstances, a vassal could dissolve the relationship binding him to his lord if he gave proper notice in a form which was technically called “defiance”. The feudal relation of lord and man was therefore on its practical side decidedly weak; it was only while the religious and social sanctity attaching to homage endured that a lord could have any reasonable dependence upon the armed assistance of his vassals. Where so much hung upon the good faith of undertenants it is only natural that the power of the State should be very weak.
FEUDALISM AND LAND
The relationship of lord and man was most usually accompanied by a peculiarity in the law of land. In the days when feudalism was at its height, the vassal held his land of the lord. Originally the vassal’s interest was not large. He might forfeit his land for any great breach of the homage-relationship such as was described by the shameful word “felony”; in any case his interest was only for life, and whether the lord regranted the land after the tenant’s death to any of his descendants or kindred was a matter which rested in the lord’s discretion. It will therefore be seen that feudalism implied land holding rather than land owning, save in the case of those few great lords and princes who had no superior, and therefore owned their lands, both those they retained and those which they granted out, by absolute right.
FEUDALISM AS A MILITARY SYSTEM
A third characteristic of feudalism was the fact that to the combination of these two relationships of lord and man, landlord and tenant, was added a system of military organisation. The vassal who held land of his lord was bound by his tenure to provide a certain amount of military assistance, and for this purpose the land was organised into units, each one of which was charged with the provision of a certain number of knights armed and mounted and attended by the requisite number of subsidiary arms in squires and sergeants. This system of military service lasted as long as the knight himself continued to be the basis of military organisation. As time went on, the knight, who at first had been an extremely mobile unit, gradually became more cumbersome. His growing social importance necessitated measures for his protection, and these took the form of heavy armament both for the horse and his rider. This reduced his mobility, and when in the end the long bow was invented the knight ceased to be of practical importance in warfare. Nevertheless, the organisation of the land into knight’s fees and the exaction of military service still survived, together with many other elements of feudalism. Consequently we have in the later middle ages the perpetuation for legal and fiscal purposes of a feudalism which had long since ceased to represent current conditions. In England the fiscal side of knight-service was in fairly frequent operation until it was abolished in 1660, four hundred years after it had ceased to be the working foundation of the military system. Other aspects of feudalism, such as dependent tenure, have never been abolished in England, and are presumed to exist still in some jurisdictions even in America.
Feudalism arose largely out of military necessity and was a measure to cope with a grave military situation—the invasion of Europe by the Norse. Consequently in all fields of life the military expert was predominant, and for a time even overshadowed his great mediaeval rival, the religious expert. Between the two of them, the military and the clergy, there was little room for anything else. So grave was the crisis that populations willingly (and wisely) accepted the domination of the knights and the clergy as the only means of saving Europe and its culture from barbarian invaders, and both of them did their duty. But the social consequences of this were serious and showed how high a price had to be paid for such precarious security as feudalism could afford. Towns and city life were hard put to it to find a place in the feudal system, while the peasantry had no alternative but to accept serfdom.
FEUDALISM AS A CONSTITUTION
Finally, all these elements so combined that they served the place of public law and a constitution. The defence of Europe had to be carried out throughout the length of its coast line at very widely scattered points; there were no railways and no telegraphs. It would therefore have been impossible for a government in Paris, for example, to defend France from attacks which might take place at any point upon the Channel, the Atlantic or the Mediterranean. It was therefore necessary to go to extreme lengths of decentralisation, and so we find another element of feudalism which consists in allowing each lord to assume governmental powers over his tenants. Whatever military defence is undertaken must be carried out by local forces organised and led by local leaders, and consequently it is necessary that those leaders should exercise powers of government within their locality. The tenant, therefore, owes to his lord fidelity, military service and counsel (which is expressed as an obligation to attend his lord whenever summoned, whether it be for services in the field or at the council table), and is subject to his lord’s jurisdiction. And so the dogma will arise that every lord can hold a court for his tenants, compel their presence in it, and do justice to them in matters arising within the fee.
It will therefore be seen that the feudal age denied a good many things which in our own day are taken for granted. Feudalism implies the absence of anything corresponding to the State; each lord has jurisdiction over his tenants, and they in turn over their undertenants, and allegiance is owed to the lord to whom homage has been done. So, too, property in land as we know it to-day is inconsistent with thoroughly feudal conditions; while even the waging of war was not a national concern but was left to be the occupation of those whose tenure obliged them to undertake it.
All these characteristics of feudalism which we have described in general terms are subject to infinite variation in every quarter of Europe, and although we, at a distance of nearly a thousand years, can survey them all together as aspects of one social structure which we call feudalism, yet it must be remembered that to contemporaries it may very well have been the diversity rather than the unity which seemed most striking. The word “feudalism”, once again, is merely a modern generalisation about mediaeval society.
CONTINENTAL ORIGINS OF FEUDALISM
A few indications may be given concerning the origins of feudalism, especially on the continent, for English conditions were apt to reproduce, and even to imitate, society abroad. Although some of the main lines of development which finally produced feudalism have now become fairly established, there still remains a great deal of controversy upon innumerable points, and upon the relative influence which different institutions had in the development of the final product. Feudalism, in fact, is not only the sum-total of a number of different institutions existing at the same time, all of which contributed to promote the same end, namely, the government and defence of the land, but is also the product of many different lines of development, some of them coming from widely separated places, which have converged and finally given rise to the state of society called feudalism.
There is, for example, the comitatus, of which we first hear in Caesar and in Tacitus, both of whom describe the Germanic tribes as having a social custom whereby a great chief would surround himself with a band of chosen warriors and enter into a close personal bond with them. They formed a fraternity for military adventure and seem to have lived upon the spoils of war. The comitatus steadily increased in importance, and when finally many of the barbarians peacefully settled within the Roman Empire, they found there a Roman institution of somewhat similar character whereby a general or an Emperior would engage a band of soldiers (often barbarians) for his personal service, such soldiers being called bucellarii; it seems that the general provided a military outfit for each of the men, which reverted to him after their death. In the history of the fifth and sixth centuries we find a great deal about the doings of such bands of warriors. The points of contact with later feudalism seem to be the performance of a ceremonial oath of fidelity, and the obligation, upon the man’s death, to give or return to his lord a varying amount of military equipment. It is fairly clear that a similar institution existed in England, where we read of thegns and gesiths. With the gradual settlement of society both the chief and his train became more fixed; the chief became something like a provincial governor and his followers then settled down with him and became his household and official staff. In France there was such a class of court officials called sejones, and in England, especially under the Danish kings, we find a group of “huscarls” who not only fought around King Harold as his bodyguard, but could also be sent around the country as administrative officials to collect taxes. Later still these officials tended to leave the court and settled in the country, supporting themselves upon grants of land from the King, who, however, still obliged them to serve him upon demand.
Another line of development which finally mingled with the former was that of patronage—and here we have not a Germanic, but a Roman, institution.1 Its general outline somewhat resembled the comitatus, except that it never had the marked military character of the Germanic institution. Patronage had a long history under the Republic and later under the Empire. As early as the year 122 it had become in some cases hereditary, but this, of course, was merely a matter of custom; patronage was no part of Roman law and was not an element of the political constitution, although it was a most powerful social institution. Many patrons had hundreds of clients, and here again we find the word “faith” closely connected with the relationship. Quite frequently a whole town would put itself in the faith of one person, such clients being described as commending themselves to their patron, the significance of which seems to have been that the client delivered himself over to the patron relying upon the patron’s faith.2 There were several ranks among clients and their principal obligation seems to have been to give service and counsel to their chief—in plainer words, they acted very much like a political “machine” as the expression is understood in America. The patron in turn defended his clients in litigation, and we may easily imagine that the support of a powerful patron was a great advantage.
In the Theodosian code (438) we find an attempt to prevent clients commending their lands as well as themselves; but it is equally clear that this attempt was unsuccessful and that nothing could prevent the spread of the practice of patrons getting control over the land as well as the persons of their clients. It would seem that this development was prompted by the rigours of the taxation system. The one sphere of government in which Rome was inefficient was that of taxation, and this defect contributed very largely to the distintegration of Roman society. The taxation fell heaviest on the smaller propertied class and their inability to support the burden eventually depressed that class into the condition of dependent tenants. The practice of commending land, as well as oneself, to a patron was an important step in this direction. At first it was merely a device whereby the patron assumed responsibility towards the State for taxes due, in return spreading the burden of taxation more evenly for the client. We also find patronage transferred to France, where it is clear that the French patronage is a direct descendant from the Roman. In France it sometimes took the name of a “trust”.3 By this time the Church had acquired extremely wide property in land, and bishops and abbots were among the most powerful people in the country, and consequently we find a good deal of commendation to great ecclesiastics.
An important part in this development was played by a legal institution called the precarium, which we must now consider. The precarium has a very long history in Rome, where it was closely associated with patronage, although for a long time the law took no notice of it save to attempt to abolish it. Roman lawyers had made certain categories into which property interests could be divided; there were ownership, possession, and usufruct. But the precarium could not be placed under any of these heads. Our first legal definition of it is by Ulpian at the beginning of the third century, who says that “a precarium is granted to a petitioner in answer to his prayers, for his use and for as long as the grantor pleases”.1 It is the prayer or petition which is the characteristic of the precarium. The recipient gets the land as an outcome of his urgent petition. The characteristics of the precarium were, therefore, that it conveyed only the enjoyment of the property. The arrangement was terminated by the death of either party, the grantor (rogatus) or grantee (rogans). More than that, it was technically an act of charity and could therefore be revoked at any moment. Its legal position was anomalous; in one respect it was superior to the lease, for it conferred possession, but in others it was inferior, since it was not based upon contract. Gradually the praetor protected the precarium against third parties, although, of course, not against the rogatus. This arrangement was frequently used by embarrassed debtors, who would surrender their lands to their creditor and receive them back as a precarium, for in this way the debtor was assured of his immediate future while the creditor in the end received a good deal more than the original debt.
The combination of patronage and the system of precaria was inevitable, and the two together played a large part in the establishment of the latifundia or immense landed estates worked finally by slave labour, if at all. The precarium continued in use with increasing influence; late in the fifth century we find it described by Salvianus, who observes that it is revocable at will, that it confers a tenancy and not ownership, that the tenant owes gratitude to the donor, being bound to him in good faith, and that the breach of this faith will make him ingratissimus and infidelissimus—two of the most serious reproaches which could be made.
In the sixth century and onwards it is clear that the Church is a lavish grantor of precaria, and so the precarium passes to France and mingles with the general stream of influences which were finally to create feudal society. At the same time a number of changes take place. The precarium may be for life, or even for a number of generations; on the other hand, it may be merely for five years, although renewable on paying a very moderate rent, and this latter was generally called a precaria instead of a precarium.1 Its origin seems to lie in a different quarter from the true precarium.2
GRANTS BY THE CROWN
This brings us to the deliberate attempt made by the French monarchs to remodel these institutions. The sixth and seventh centuries are occupied in French history by the Merovingian dynasty, which made a great attempt to establish a national government under almost impossible conditions. Their main difficulty was that of finance, for the Roman system of taxation was now unworkable and the Crown domain was fast becoming exhausted by the number of grants which the Crown had to make to reward its faithful servants. The solution which the Merovingians found was only partially successful. They seem to have rewarded their public servants by grants of land which in form were unqualified, but in practice were subject to vague conditions. The succession of the donee’s heirs was a matter of favour rather than right; the donee could not alienate, and the grant was revoked if the donee incurred the grave displeasure of the King. The grant might also be conditional upon continued service, as well as a reward for past services.
THE CAROLINGIAN POLICY
This policy was not drastic enough to rescue the Merovingian kings from their financial difficulties, and their increasing powerlessness finally prepared the way for a new royal house, the Carolingians, which sprang from their own Mayors of the Palace. Under these vigorous statesmen the problem was attacked anew and at its centre, the Church. At first it was proposed to confiscate ecclesiastical lands outright and grant them to royal nominees; or as an alternative wealthy monasteries might be compelled to support a certain number of soldiers, while we occasionally find that some lay official will be provided for by appointing him abbot of a monastery. These unseemly3 measures in the end gave way to a compromise reached by Pepin the Short in 743, according to which the Church granted lands to royal nominees to be held as precariae, owing services to the Crown and a very moderate rent to the Church.
There were other forces, too, which were making the Church the overlord of land. A great deal of its wealth came not from the great nobles but from the much smaller landowners who hoped to atone for their crimes and win spiritual favours by surrendering to the Church free land and receiving it back by precarious tenure. It will be noticed that by this time the precaria, instead of being sought, is rather offered, and so we get an institution whose name is really a contradiction in terms—the precaria oblata. Churches would frequently have scattered estates, some of them quite remote from the bulk of the Church’s interests, and in order to secure a revenue from these outlying lands the precaria was used once again as a means of letting them to tenants who would work them and pay a moderate rent. All these different types of precariae, together with the various forms of royal grant, had one element in common—the good will of the grantor; it is not surprising, therefore, that in time they are classified together, whatever their origin, under the name “benefices”. The word “benefice” has in fact been traced back to the particular sort of “benefit” whereby a precaria was granted for life, and gratuitously.1
To these developments was soon to be added the factor of military service. It would seem that before the middle of the eighth century military service had become an obligation of those precarious tenures which had been instituted in response to the King’s request. Charles the Great at the beginning of the ninth century had established the rule that all were liable to military service and not merely those who held of the Crown in chief, and consequently he had to make arrangements whereby the poorer men could join together in meeting the expenses of one of their number. By the end of the Carolingian period military service was becoming systematised, and early in the eleventh century the knight’s fee appeared as a definite institution in Normandy. Indeed, the division of land into districts, each with an allotted quota of men and material, is a simple and obvious device; we find, for example, in 1679 that an act in Virginia required each district to provide one man armed and mounted for service in the Indian wars.2
We have now to consider the connection between land holding and jurisdiction. The factors which made for this development were to be found in both German and Roman institutions. Under Germanic custom every freeman had jurisdiction over his household, and this jurisdiction frequently took the form of holding him responsible for certain police measures. At the same time there was a tendency for large landed estates to be organised as separate concerns by their owners with little or no reference to the ordinary public jurisdiction; a striking example of this is the persistence of the ancient demesne of the Crown in England, which for some centuries held a position outside of the common law. On the Roman side there were even stronger tendencies in this direction. In the fifth and sixth centuries we find immunities granted to landowners, sometimes including an exemption from the visits of imperial justices, while at the same time the frequent grants of the profit of jurisdiction naturally led to the exercise of that jurisdiction by the grantee in an endeavour to make the most of his profits.
THE FEUDAL COURT
In Germany it seems clear that there were two different types of feudal court, each of which had its special history. Of these one was based directly upon the relationship between lord and vassal, while the other seems to have been originally a communal court which later fell under the control of some neighbouring landowner. It has recently been suggested1 that the rise of feudal jurisdiction in France followed rather different lines, and that these two types of feudal court are not at first distinguished. The question therefore arises as to whether the origin of French feudal jurisdiction must be sought in the relationship of lord and vassal or in the appropriation of once public courts by private owners. There is reason to believe that French feudal jurisdiction did in fact derive from the old public courts, and in some cases it has been possible to trace the stages by which the transition was made. The Frankish equivalent for the county court was the mallus, in which, as in our own communal courts, judgment was given by suitors (often called échevins) who very frequently were obliged to fulfil this office because they were the holders of particular pieces of land. The office of these échevins, therefore, became hereditary in many cases. It has been shown, however, that the mallus at times begins to consider cases which are really feudal in character while simultaneously the échevins become rarer and finally disappear, for their duties must have been very burdensome and their attendance at court difficult to enforce. The count, on the other hand, had his band of vassals who were bound to attend him on demand, and so it is only natural that when the count discovered that it was difficult to secure échevins he should use his feudal connections and compel his vassals to take their place. In this way an old public court will become a private feudal jurisdiction.
FEUDALISM IN ENGLAND
These, then, were the general features of feudal development on the continent, subject, it will be understood, to an infinite variety in detail as one passes from district to district. Life was as varied then as now, perhaps even more so, and every local territory pursued its own history and followed its own destiny in accordance with conditions which in many cases must have been local and peculiar, although in the end the result was apt to be roughly analogous to that which had been reached by many other communities in different parts of Europe. In raising the question how far all this history of European feudalism applies to England there are many difficulties. Our sources seem somewhat less informative than those on the continent, and although the general outlines of feudal development in England can be traced, much of the detail must be left to conjecture. A good deal can be ascribed to conscious imitation, for English kings were naturally tempted to look for their model to the continent, where the new type of organisation was undoubtedly more advanced.
In general terms it may be confidently stated that the Anglo-Saxon period had already developed before the Norman Conquest the principal features of feudalism, although the means by which this development took place are not always apparent.1 On the eve of the Conquest we find a good deal of dependent land tenure which was subject to rents and services, and even to military service as well. The Anglo-Saxon bookland may in its earlier days have been a grant of full ownership, but in the later period it resembles more closely the continental benefice in spite of the fact that its history was somewhat different. The Anglo-Saxon sources also tell us about “laen land”, which seems half-way between the benefice and a lease for three lives. Private and personal jurisdiction played a prominent part in the police system; lordless men were compelled to find a lord. At the same time immunities of varying extent were lavished upon the Church and later upon laymen, and by the end of the period it seems to be assumed that landowning involves some elements of lordship. The old hundred court not infrequently fell into private hands and it is to be presumed (at least in law) that this was in consequence of a royal grant. The origins of the greater jurisdictions can in many cases be traced, but the great mystery in Anglo-Saxon institutions is the development of the small private franchise. Upon this we have very little light at all.1
THE RESULTS OF THE CONQUEST
The effect of the Norman Conquest in England2 was to introduce a body of administrators who were familiar with the more highly organised type of feudal society existing on the continent, and the result of their presence must have been to give a definite form to institutions which in England were thus far somewhat vague. From this point of view Domesday Book must be regarded as an attempt by those administrators to express English conditions in the technical terminology of continental feudalism. It may be said, perhaps, that although the Norman Conquest did not introduce feudalism into England, yet it may very well have largely contributed to the development of a feudal system in England, for there can be no doubt that, as far as the law of land is concerned, England became the most thoroughly and consistently feudal of all the European states. In particular, it has recently been shown that William the Conqueror exercised a degree of control over subinfeudation which would certainly not have been any longer possible on the continent, and the Salisbury oath, already mentioned, may be taken as a further illustration.3 In assessing the Norman contribution to English feudalism the unique opportunity of a complete conquest must be allowed to account for many things; it permitted much more rapid development, the importation of a technical terminology, and the more precise definition of relationships. The Norman introduction of the knight’s fee is a well-known example. But the general outlines of feudal society with its seignories, services and franchises cannot have been so very novel to eleventh-century England.
When we come to examine the Anglo-Saxon law of land we find three terms in use, “bookland”, “folkland” and “laen land”. Of these bookland is by far the most frequently mentioned in the sources, and necessarily so, for bookland is peculiar in being held by a written document.1 Many documents constituting bookland are to be found in the large collections of Anglo-Saxon charters which still survive. Even in the form of the document we can see continental and papal influence; the wording of the charters is frequently florid and full of religious and moral commonplaces, which seems to show that these documents were not yet in ordinary everyday use; it is upon exceptional and solemn occasions that a charter has to be drawn up, and the grantee (who normally seems to have been the draftsman) lavished his literary skill upon a charter which was to be the symbol of exceptional privileges. During most of the Anglo-Saxon age the grantees of these charters are almost always churches, and it is therefore to be expected that continental influences should play their part. In spite of their length it is not always clear exactly what an Anglo-Saxon charter purports to convey. It will say, with a great deal of precise Roman terminology, that it conveys the ownership of land, but this very term is not free from ambiguity. In many cases it is clear that what passes under the charter is not land but rather rights and privileges over land which is, in fact, occupied by others. Such rights consist of tributes or farms payable to the lord; then, too, there are various immunities which will exempt the grantee from nearly all public burdens (especially a heavy liability to purveyance)—and it seems that these rights over freemen were numerous and profitable; to them must be added forest and hunting rights, together with the profits of jurisdiction—and as Anglo-Saxon law exacted money payments for all sorts of faults, trivial or grave, the profits of jurisdiction must have been considerable. This does not mean that property in land (as distinguished from jurisdiction over other people’s land) could not be conveyed by charter; no doubt it was, but the significant feature is that the same form serves for both purposes. This feature long survived, and even in the classical common law the same form of words will pass a piece of land, or a manor, which is not entirely land, or an honour, which is not land at all but merely feudal jurisdiction over land.
When we come to the later bookland we find that it is no longer peculiarly ecclesiastical. Laymen seem pleased to obtain it on account of certain legal advantages, notably devisability, which seems to have been a characteristic which the Church at first valued highly, since bookland could be left by will, and so one bishop was able to provide for his successor, for as yet prelates did not have perpetual succession. Another advantage which undoubtedly contributed to its popularity was the fact that litigation concerning bookland took place before the king and the witan; the folk courts of the hundred and the shire had no jurisdiction over it. In addition to this, we can see in the procedure of such cases that the holder by book or the claimant by book, was in a very privileged position.1 Then, as for a thousand years to come, no oath could be given against a charter—just as no wager of law lay against a deed. Finally, bookland, besides being devisable, was also alienable (unless, as sometimes happened, the grantor set up a sort of entail in the book), and so was free from the family restrictions which lay upon ordinary land.
A word must be said about folkland. The word only occurs three times in the whole of Anglo-Saxon legal literature, but nevertheless a vast edifice of supposition and conjecture has been built upon it. It has been alleged that folkland was the public property of the State, and so the Anglo-Saxon nation has been credited with vast possessions in its own right, completely distinct from the property of the kings. This theory was demolished by Sir Paul Vinogradoff, who established that the meaning of folkland is simply land which is held according to customary law by folk right, which therefore constitutes its great contrast to bookland.2 As Maitland has said:
“Land, it would seem, is either bookland or folkland. Bookland is land held by book, by a royal and ecclesiastical privilegium. Folkland is land held without book, by unwritten title, by the folk-law. ‘Folkland’ is the term which modern historians have [erroneously] rejected in favour of the outlandish alod. The holder of folkland is a free landowner, though at an early date the King discovers that over him and his land there exists an alienable superiority. Partly by alienations of this superiority, partly perhaps by gifts of land of which the King is himself the owner, bookland is created.”3
As for laen land, we have here perhaps the closest English analogy to the continental precaria. We even find some curiously close parallels between the position of the Church in England and its position on the continent; thus, we find the Church being called upon by the English kings to grant laen land to royal nominees.4 One of the great difficulties in studying this laen land is the confusion which often exists between the laen (which strictly should be nothing more than a loan) and an absolute gift; “the loan is a gift for a time”.1 Then, again, although laen land is sometimes constituted by written charter yet it is perfectly clear that a good many grants must have been made without charter. In a few cases where we find the incidents of laen land set out the similarities with later feudalism are most striking. Thus we find that the tenants are bound to ride upon the lord’s errands, transport his goods, pay rent, and perhaps fight. Then, too, laen land is within limits inheritable. The limit seems to have been for three lives,2 each of the two inheritors paying relief. Under normal circumstances the three generations would cover a period of about eighty years, but it is not at all clear how the Church proposed to secure its reversion after so long a period. Indeed, it is known that the Church of Worcester had a good deal of trouble in this matter, and there is certainly a very strong tendency for such land to become perpetually inheritable, although subject to relief. We even find in the year 983 an indication that the widow of a tenant of laen land might be under pressure to marry one of the lord’s subjects, and in the days of Edward the Confessor this has grown into the right of granting an heiress and her lands to the nominee of the lord.3 If laen land were at all common in England it would seem that we had in it the most remarkable link between English and continental feudalism; but unfortunately the chances of time have only left us documents in any considerable quantity from one church, the Cathedral of Worcester, and it is uncertain how far they represent conditions generally throughout the country, and how much they owe to the originality of the great Bishop Oswald, who ruled the see towards the close of the tenth century.
INHERITANCE AND ALIENABILITY
Numerous attempts have been made to discover the origin of property in land, but unfortunately they have in many cases been prompted by political or economic prepossessions, with the result that the discussions upon this subject are by no means always good examples of scientific research. The age-long instinct of the human race which would imagine an ideal state of perfection in some remote age of the past has been very influential in directing men’s studies to the early history of property.
THE MARK THEORY
Early in the nineteenth century a school of German historians, of whom von Maurer was one of the greatest, discovered something like an earthly paradise in the condition of the Germanic tribes in the days of Caesar. They were even prepared to assert that as late as the seventh century the Germanic peoples practised communism in land, and that the idea of private property in land did not prevail among them until they had been corrupted by the influence of Roman law. The ancient Germanic village community from this point of view consisted of a highly socialistic state, very small, but very compact, which held the title to all the land in the community, allowing individuals only a right of user. This hypothesis is known as the mark system.1 In 1887 a brilliant and searching criticism of this theory was made by one of the greatest of modern historians, Fustel de Coulanges, who demonstrated the falseness of this position. For some strange reason there has been great reluctance to accept the results of Fustel; by an unfortunate fate his disinterested scholarship became entangled both with party politics in France, and with national historical tradition in Germany, with the result that it is only at the present moment that his work is beginning to receive the attention which it deserves.1 The results, however, are beginning to be silently adopted even in Germany, where historians have long resisted his influence.
AGRARIAN ORIGINS IN ENGLAND
The older English historians, notably Stubbs, accepted the mark system in its entirety until Maitland demonstrated in 1897 that it was inconsistent with the English documents. The results he reached are similar to those of Fustel de Coulanges although he differed from him on points of detail. Into the complicated controversy surrounding the village community we cannot enter.2 The most we will say is that the English sources show us individual ownership which as time goes on steadily becomes more intense. There was, however, a great deal of co-operation between neighbouring villagers, and then as now they would combine their resources in order to secure some particularly costly piece of agricultural equipment—the team of oxen which drew the heavy plough, for example—to arrange the rotation of crops and fallow, and other matters where united action was an advantage. This does not mean, of course, that there never was any communism in land at some remote period in England; but it does mean that we have no evidence of such a condition, and that as far as history is concerned the sources indicate individual ownership. The organisation of the village community in prehistoric times is an investigation which cannot be handled by the methods of the historian, and the theories which have been suggested on the subject must be taken subject to the reservations necessarily applicable to speculations in prehistory.
There is some historical reason for believing that in early times land was owned by families rather than by individuals, but the antiquity of this arrangement, its origins and its significance, have been much disputed; indeed, it has been suggested by Ficker and Maitland that this apparent family ownership is in fact only the product of the working of various rules of individual inheritance. This may very well be, for a similar process can be observed in other periods of legal history. The results produced by a strict settlement in the eighteenth century, for example, might easily produce the impression upon an historian of a thousand years in the future, who had no access to the deeds, that land was held by the family, and yet a history of real property law would show clearly that such a settlement was in fact the outcome of an ingenious arrangement of very individualistic rules of property and inheritance. Then, again, good reasons have recently been shown for believing that another body of rules, in themselves individualistic, combined to produce in France the system of community property between husband and wife.1 These considerations will serve as a warning that there is no absolute necessity in the nature of things why property should first have been ascribed either to the community or the family before it became individual. Generalisations of this sort cannot be used as aids to research; they are in fact useless for all purposes, until independent research has established their truth.
HERITABILITY OF MILITARY LAND
In tracing the history of the heritability of land we are faced by two problems. The first is comparatively easy; the practice, and later the law, relating to the descent of great military fiefs, are fairly clear. A number of documents have survived relating to these matters, for they were of great political importance. But, as we have seen, the vast properties which were granted as benefices to nobles and rulers consisted only in part of land for use and occupation; the major portion of these immense holdings certainly consisted of superiorities and fiscal rights superimposed upon the humbler orders of society who occupied and worked the land according to customs which in all probability were considerably older. Moreover, vast as they were, these holdings consisted almost always in an accumulation of scattered units, and the difference between a great landed magnate and a small one was simply the difference in the number of these units held by each. Whatever law was developed for the succession of great estates must therefore necessarily apply to small ones too, for the great estate was but a congeries of small units such as any minor landowner enjoyed. The result was of great importance. Socially, it meant that there was not a special law relating to nobles and great landowners, and a different one for the rest of the free landed classes. Legally, it meant that the developments of the law which took place primarily with reference to great tenants in chief, came to be applied to all free tenancies.
It is therefore the law relating to fiefs which we must consider. By the time of Bracton it is settled law that the word “fee” connotes inheritability and indeed the maximum of legal ownership. At the time of the Conquest this was certainly not the case. We have already seen that the feudal benefice on the continent assured little beyond a life tenure in its early days, and so it is not surprising to find the same state of affairs in England when the Conqueror repeated history in his grants of fiefs to his followers, and they in turn subinfeudated.1 More often, English charters immediately after the Conquest seem careful to avoid saying whether the donee is to take an estate for life, or whether his heir is to have any rights.2 Indeed, at this very moment in France itself (which was generally in the front rank of feudal development) the question of the quantum of a feudal tenant’s interest was uncertain. There is abundant English evidence after the Conquest of lords refusing to regrant on any terms to a deceased tenant’s heir.3
We have already mentioned the fact that the heir of a military tenant who wished to obtain a regrant of his ancestor’s lands had to treat with the feudal lord, who might or might not decide to admit the heir. The decisive argument was generally a sum of money, and it is possible to trace the gradual changes of attitude towards this payment. At first it is clearly no more than a payment to persuade the lord to make a grant of a benefice. Later it came to be an arbitrary due payable when an heir succeeded his ancestor, i.e. the succession of the heir has become normal, although the “relief” may be so heavy that it was equivalent to “buying back” the fief; hence a tenant might hesitate whether he would pay, or forgo the lands. In 1100 the charter of Henry I contained this clause:
“If any of my earls, barons or other tenants in chief die, his heir shall not redeem his land as he did in the time of my brother (i.e. William II), but shall take it up with a just and lawful relief.
“The men of my barons shall likewise take up (relevabunt) their lands from their lords with a just and lawful relief.”4
By 1100 it therefore appears that the hereditary principle was admitted by the king in favour of his tenants in chief, and by them in favour of their sub-tenants. Having gone that far, it must rapidly have spread all through the feudal network.
HERITABILITY OF NON-MILITARY LAND
The second problem, and one of much greater difficulty, is the question of what law governed the descent of land in the middle and lower classes. These people were of no great political importance; their pedigrees are almost always lost. The succession of owners of the more modest estates is difficult to establish and the records of their litigation only begin at dates much later than the critical period which we should like to examine. Only occasionally do we find surviving collections of deeds which throw some light upon the law under which they held their land. This is particularly true of the Anglo-Saxon age.
We have, of course, a good deal of evidence (although it is by no means easy to interpret) relating to bookland, but it is obvious that bookland was a luxury for the wealthy; much of it was held by churches and monasteries and so the question of inheritance does not arise. There is good ground for believing, however, that bookland was alienable and devisable. It would seem from a passage in the Laws of Alfred that it was possible to insert in the charter constituting bookland limitations upon its descent, and that those limitations would be upheld in law.1 In this way Anglo-Saxon society of the ninth century acquired a device very closely resembling the entail of the late thirteenth century. Judging from surviving sources, however, no very great use was made of these powers. It is when we come to folkland that we reach the difficult problem of how land descended by common custom among the mass of the middle-class population, and here it is extremely difficult to reach a conclusion.
THE RELATION OF HERITABILITY TO ALIENABILITY
It may be helpful to consider the problem of inheritance in connection with that of alienation. Land was certainly not yet a commodity of commerce. The buying and selling of land on a large scale can hardly have existed. The population was very small and there was enough land to meet its requirements many times over, and it would seem that the land worked by a family in those days, as now, was worked by the labour of every member of the family. One of the striking features of peasant life is that every member of the family works, from the oldest to the youngest. The death of the head of the family can hardly have made very much difference beyond the substitution of a new head to control the general working of the estate; the other members of the family must surely have continued their old tasks. Under such circumstances there was little room for inquiry as to the exact canon of descent, as to where precisely the legal title was, or as to the exact nature of the interests enjoyed by junior or collateral members of the family. Under the new head as under the old, the whole family was supported by the whole of the land, living most probably together at one table. While such conditions lasted, even quite a vague custom would have been sufficient to regulate the family patrimony. Questions as to ownership and restraints upon alienation and the nature of heritable rights would begin to arise in only a few situations. The most important of these, no doubt, was created when one member of the family attempted to alienate a substantial portion of the property to a church. It is in this situation that family rights are brought to the fore on the continent, and we find the Church taking every possible precaution in order to secure its title. How far these precautions were absolutely necessary and how far they were merely politic, it is impossible to say. In any case, it is clear that on the continent an alienation to a church was accompanied by a confirmation by several members of the family who were deemed to have an interest in the land. This does not mean that the land was owned by all the family and that all must join in a conveyance. It seems rather that the Church felt it necessary or prudent to obtain the ratification of those who had expectations in the land. We find, for example, that when a gift was made to a church the donor would be required by ecclesiastical discipline to obtain the consent of his kinsmen, if necessary, by paying them a substantial sum of money. In England we find presumptive heirs joining in a conveyance in the eleventh and twelfth centuries but how much older this requirement is can hardly be stated—evidence discussed by Sir Paul Vinogradoff from the tenth century leaves us in doubt whether such consent was absolutely necessary.1
FAMILY RESTRAINTS IN GLANVILL
After the Norman Conquest, by means unknown, it became the regular form in conveyances to mention the consent of expectant heirs, while when we come to Glanvill we find this statement:2
“Every freeman, therefore, who holds land can give a certain part of it in marriage with his daughter or any other woman whether he has an heir or not, and whether the heir is willing or not, and even against the opposition and claim of such an heir. Every man, moreover, can give a certain part of his free tenement to whomsoever he will as a reward for his service, or in charity to a religious place, in such wise that if seisin has followed upon the gift it shall remain perpetually to the donee and his heirs if it were granted by hereditary right. But if seisin did not follow upon the gift it cannot be maintained after the donor’s death against the will of the heir, for it is to be construed according to the accustomed interpretation of the realm as a bare promise rather than a true promise or gift. It is, moreover, generally lawful for a man to give during his lifetime a reasonable part of his land to whomsoever he will according to his fancy, but this does not apply to deathbed gifts, for the donor might then (if such gifts were allowed) make an improvident distribution of his patrimony as a result of a sudden passion or failing reason, as frequently happens. . . . However, a gift made to anyone in a last will can be sustained if it was made with the consent of the heir and confirmed by him.
“Moreover, when anyone alienates his land in marriage or otherwise, he has either inherited land only, or acquired land only, or some of both sorts. If he has only inherited land he can give a certain part of it, as we said before, to whomsoever he will. If, however, he has several legitimate sons, it is not at all easy without the consent of the heir to give any part of the inheritance to a younger son, because if this were allowed the disinheritance of elder sons would often occur, on account of the greater affection which fathers most frequently have for their younger sons. But can a man who has a son and heir give a portion of his inheritance to his bastard son? If this were true then a bastard is in a better condition than a legitimate son—and nevertheless this is the case.
“If, however, a man has nothing but acquired property then he can alienate it, but not all of it because he cannot disinherit his son and heir.”
Glanvill continues to give several more pages to the same effect. It would seem that he is anxious to frame general and reasonable rules, but that English law had not yet reached the concrete and definite provisions such as are to be found in various continental systems. Glanvill is unable to tell us plainly that a man can alienate one-third or one-half of his patrimony or his conquest; such rules existed on the continent and Glanvill would surely have told us if there were similar rules in England; but all he says is that a man must be “reasonable”, that he must not disinherit his heirs, and that he can only alienate “a certain part”. Glanvill also distinguished between patrimony and conquest, but this soon dropped out of English law.1 It would almost seem that the vague rules which Glanvill mentions were only insecurely established, for not only were they indefinite on the vital question of how much land could be alienated, but also, when we come to Bracton two generations later, we find no trace of them left.
Still, there can be no doubt that Glanvill is good evidence of a feeling that alienation ought to be restricted and that expectant heirs should not be disappointed. Starting from this fact we may say that the situation was probably something like this. Under ordinary circumstances, just after the Conquest, land was equally divided among all the sons, and it was considered improper—Glanvill would say illegal as well—for a father to alienate during his lifetime more than a reasonable portion of his patrimony, and particularly reprehensible if he advanced one son to the disadvantage of another.2 The policy of the rule seems to be to maintain absolute equality among all the sons, and Glanvill even asserts that the rule was pushed to such an extremity that a man could advance a bastard son (who, not being in the family, is not limited as to the amount which he can take) although he cannot show the same favour to a legitimate son. In short, the restrictions upon alienation have as one of their principal objects the maintenance of equality among the legitimate sons.
We now come to the development of another rule which was to cause considerable difficulty, the rule of primogeniture. Under this system the whole inheritance descends entire to the eldest son, his younger brothers receiving nothing.
This form of descent first appears in military fiefs, where there was obvious justification for the policy of keeping the fief entire. It was long an opinion that primogeniture was introduced into England at the Norman Conquest, but Maitland felt uncertain whether primogeniture in Normandy had in fact proceeded any further than in England, and therefore concluded that we could not blame the Normans for “our amazing law of inheritance”. It would seem that in the eleventh century there were two tendencies in Normandy struggling for supremacy, the first being primogeniture and the maintenance intact of the whole patrimony, and the second being an attempt to compromise between this and equal partition through the device of parage, whereby each brother had his share but held it feudally of the eldest, who represented the whole inheritance. It has been suggested that—
“it is the will of the father which first of all determined how his property should descend, and the practice of primogeniture grew into a custom of primogeniture.
“As for the date, it seems that of our two Norman systems, the one of absolute primogeniture, and the other of partition and parage, the former is the more ancient. It was already dominant, if not in exclusive use, in the eleventh century. The second system which in the end was to become the general custom only began to prevail at a more recent date.”1
It may well be that Norman example played a considerable part in imposing primogeniture upon English military fiefs.
Although in England and Normandy primogeniture grew up as a matter of custom, that was not the case everywhere. It was imposed upon Brittany in 1185 by an assize of Count Geoffrey,2 and upon the town of Leicester by its lord, Simon de Montfort, at the request of the inhabitants who preferred it to their custom of borough-English (ultimogeniture).3
PRIMOGENITURE AND FREE ALIENATION
It will be evident that, with the spread of primogeniture to land which was originally partible, some modification will have to be introduced into the rule, which Glanvill mentions, restraining alienation. Glanvill tells us that a father has no right to alienate his land unreasonably, or in any way which would benefit one son more than another. But could these restrictions be maintained after the advent of primogeniture? Would it be reasonable to maintain the restrictions upon alienation whose original object was to maintain equality among the sons, now that recent changes have abolished that equality and the whole inheritance goes to the eldest? The force of these objections seems to have been felt, and the rise of primogeniture inevitably brought with it freedom of alienation. Henceforward the eldest son will inherit the whole of the father’s property existing at his decease, but during his lifetime the father can make any provision which he sees fit for the younger sons without requiring the consent of his heir. These great changes occurred just about the year 1200, but how they were carried out is a mystery. It may perhaps have been a few decisions of the King’s Court which sufficed to enforce the new rule—or rather to turn the balance definitely in favour of one of the two competing systems of succession. Perhaps freedom of alienation was partly achieved through the doctrine of warranty. It began to be the custom for an alienor to bind himself and his heirs to warrant the alienee against all men. An obvious result of this obligation is that no person who is bound to warrant can claim the land; he is barred by his warranty. As soon as the rule is established that a man’s heir is his eldest son, then that eldest son will inherit the burden of warranty and be barred by it. In this way a deed with warranty will be sufficient to bar whatever claim the grantor’s eldest son might have. In 1225 the King’s Court refused its help to an heir who had been completely disinherited1 and left, it would seem, with the burden of military service but with no land to support it.
SOME ILLUSTRATIVE CASES
Lest the passage quoted above from Glanvill should seem too vague, it will be prudent to look at some cases on the early plea rolls, which date from shortly after Glanvill’s day.
Thus we find the distinction between conquest and heritage clearly made in a case of 1200 in which Robert Fitz Nigel demanded a house and land against his brother Richard Battle.2 Robert claims as “eldest brother to whom that land ought by law to descend”. The demandant is setting up the rule of primogeniture, but the tenant takes a more conservative position. True, he relies upon a gift by their common father to him, the younger son, but he does not state the full rule of freedom of alienation; he is content to rest on the older principle—“Richard comes and says that their father . . . of his conquest gave him that land during his lifetime”. So far, then, Richard only claims freedom of alienation in respect of conquests, but his case was in fact even stronger, for he adds that in the court of the chief lord of the fee Richard did homage to his eldest brother, the demandant. Here, then, we have the situation which was soon to develop into the rule that warranty will operate as a bar, for the fact that Richard did homage to Robert will soon be regarded as bringing into their relationship the obligation of warranty. That moment has not yet come (or rather, Richard has not yet heard of the new development) for instead of confidently pleading the homage as a bar, he concludes by praying the grand assize to recognise “whether he has more right to hold that land of Robert, by the gift of their father, and by the consent of Robert, than Robert has to hold it in demesne”. The case neatly illustrates the points which we have mentioned.
PRIMOGENITURE BECOMES GENERAL
Besides appearing in the highest classes of society among the nobles and military tenants, impartible succession also appears among the villeins. The economic basis of this practice is clearly the endeavour to maintain the villein’s holding intact and therefore sufficient to sustain the whole of his family and to meet the heavy burden which it owes to the lord. The rest of the freeholders in England continued what is assumed to be their former practice of equal partition among sons. For a time this was the general rule in all free non-military tenures (which are compendiously referred to as socage). It was inevitable, however, that the steady pressure of the royal courts should tend to eliminate exceptions and peculiarities, and as time goes on primogeniture gradually spreads to socage as well. The exceptions were the boroughs, which held to their custom of burgage, the county of Kent, which retained its ancient practices under the name of gavelkind, and numerous small landowners in villages where partibility persisted as a custom.1
TENURE AND ALIENABILITY
So far we have only discussed freedom of alienation from the point of view of the family. Fresh problems were created by the systematisation of feudal tenures, services and incidents, and the result was the imposition of a new type of restraint upon alienation in the interests of the lord of the fee. The history of their rise and abolition will form part of the next chapter, when tenures and incidents will be discussed.
TENURES AND INCIDENTS
As feudalism progressed, attempts were made to introduce some sort of order into the immense variety which had so far prevailed, and so a large number of different characteristics which owed their rise to local or peculiar circumstances were finally classified, with the result that there were established a few categories which covered the greater number of tenures.
Knight service was clearly the principal feudal tenure, and its history in England, according to Maitland, falls into three periods.1 In the first, from the Conquest in 1066 to about the year 1166, it was a living institution. The tenant did military service in the King’s host accompanied by the number of knights required by his tenure. In theory he was only bound to serve forty days and never outside of the kingdom. Great lords were usually assessed in multiples of five or ten knights, since ten knights formed a military unit called a constabularia; the lord in turn secured himself the services of the requisite number of knights by subinfeudating to other tenants who assumed the burden.
Military service of a sort had been attached to land even under the Anglo-Saxon régime, but it was of a different character, and designed to fit in with a different style of warfare. The Conqueror was one of the greatest military experts of the day, and he insisted on highly trained knights who were adept in the latest developments of military science. When St Anselm sent his old-fashioned “drengs” in answer to a feudal levy, William II threatened him with the judgment of the King’s Court.1 Heavy assessments of knight service were therefore made against the tenants in chief, but it is clear that they bore no relation to pre-Conquest dues, and that they were in no sense proportional to the size or value of the tenant’s lands.2 Political and personal considerations seem to have been uppermost.
The tenant in chief could take whatever measures he saw fit for providing himself with the requisite number of knights. Some simply kept the necessary number of knights in their household, like other domestic servants;3 an alternative was to settle them on pieces of land, which they would thus hold as a knight’s fee from the grantor.4 And, of course, a combination of the two was possible. The obligations of the tenants in chief to the Crown were fixed by the Conqueror in or very near the year 1070,5 but almost a century later it was found that by no means all the service due had been assured by subinfeudating knights.6
The first known occurrence of the word is in 1100,7 and for a while it only seems to have applied to the knight service owed by the great ecclesiastical fiefs.8 Later in the century it became an important question affecting all sorts of tenants, and in 1159 and again in 1166 we find prominent mention of scutage; this introduces the second stage in the history of knight service. The knight is becoming less important and professional mercenaries (as King John discovered) are more effective in the field. And so the lord paid to the king a sum of money instead of bringing his knights with him; this payment was called scutage, and the lord, of course, was allowed to recover the sum from those of his undertenants who otherwise would have been liable to serve in person.
At the same time, it is clear that some tenants, instead of paying scutage at the normal rate, made a composition with the Crown which cost them even more than the scutage; why this should be is still a debatable question.1 That the system was breaking down there can be no doubt. Even the Crown realised that the increased cost of equipping knights made the burden impossible for many tenants, and so only exacted a fraction of their due service. On the other hand, scutage having become a fixed rate, steadily declined in value. It is not surprising, therefore, that many tenants preferred to send for personal service the reduced number of knights which the Crown was now willing to take instead of the heavy assessments fixed in 1070. Hence in the reign of Henry III there is a marked increase in the number of tenants who actually sent knights.2 Under Edward I it became a purely fiscal device.3
THE DECLINE OF KNIGHT SERVICE
The third stage is marked by the decline of scutage in or about 1266, and from this date for four hundred years (1266-1660) knight service remained as only a troublesome but lucrative anachronism. It was a very heavy burden upon certain of the landowners, and when it was finally abolished at the Restoration the landed interest succeeded in shifting it on to the nation at large by giving to the Crown instead of its feudal dues an excise on beer—an example of “the self-interest which so unhappily predominated even in representative assemblies”, as Hallam indignantly expressed it.
The incidents of knight service were numerous and important. In the first place there was homage, an ancient and very solemn ceremony which established a strong and intimate relationship between lord and tenant.
“He who has to do homage . . . ought to go to his lord anywhere he can find him within the realm or even elsewhere if he can conveniently get there; for the lord is not bound to seek out his tenant. And he ought to do his homage thus. The tenant ought to put both of his hands between the hands of his lord, by which is signified on the lord’s side protection, defence and warranty, and on the tenant’s side, reverence and subjection. And he ought to say these words: I become your man for the tenement which I hold of you, and I will bear you faith in life and member and earthly honour against all men, saving the faith due to the lord King.”4
In the Leges Henrici we find the highest expression of homage. The tenant is to be faithful to his lord even under trying circumstances; if the lord seizes the tenant’s land or deserts his tenant in mortal peril he ought to lose his lordship,1 but the tenant must be longsuffering and must support the lord’s ill-treatment for thirty days in war time, and for a year and a day in time of peace;2 the lord must warrant and defend his man, while if the man kills his lord he is guilty of blasphemy against the Holy Ghost, and will be skinned alive, so it seems. Later still, Glanvill will observe that difficult situations may arise when a tenant has done homage to two lords and those two lords declare war upon each other. Homage was abolished in 1660,3 but the simple oath of fealty which accompanied it is still in existence. In the thirteenth century clerks, narrators, champions, serjeants and others took oaths of fealty to their lords (i.e. employers), but it was necessary to make it clear that such an oath of fealty did not bind the employee to do suit of court.4
Another incident of knight service is relief, which was originally the price paid in order to secure a regrant of one’s ancestor’s land in times when the hereditary principle was hardly established in military tenures. At first it was arbitrary, but a series of charters and statutes regulated it in proportion to the number of knight’s fiefs.5 If the tenant held of the King in chief, the King had prerogative rights and had the primer seisin of all the tenant’s lands, not only those held of the Crown but also those held of other lords—and it is in these intenser forms of feudal right claimed by the Crown that we first find the word “prerogative”.
Wardship means two things, wardship of the land, and wardship of the body; for the lord has the custody of the tenant’s land until the tenant comes of age, and retains the profits, subject to a liability to educate the ward in a manner befitting his station, and this wardship of the land may be separated from wardship of the body. It was, in fact, a very important example of what was later called a “chattel real”.
It is tempting to conjecture that its origin lies in the time when hereditary succession in military fiefs was subject to the discretion of the lord, who might as a favour act as, or appoint, a guardian, until the heir came of age, instead of granting the fief to a stranger. Thus, the ancient custumal of Normandy defends the institution on the grounds that homage is a more sacred bond than merely blood relationship:
“A fatherless heir must be in ward to someone. Who shall be his guardian? His mother? No. Why not? She will take another husband and have sons by him, and they, greedy of the heritage, will slay their first-born brother, or the stepfather will slay his stepson. Who then shall be the guardian? The child’s blood kinsmen? No. Why not? Lest, thirsting for his heritage, they destroy him. For the prevention of such faithless cruelty, it is established that the boy be in ward to one who is bound to his father by the tie of homage. And who is such an one? The lord of the land who never can inherit that land in demesne; for heirs of a noble race always have many heirs. Besides they should be brought up in good houses and honourably educated. Those who are brought up in their lords’ houses are the apter to serve their lords faithfully and love them in truth; and the lords cannot look with hatred on those whom they have reared, but will love them and faithfully guard their woods and tenements and apply the profits of their land to their advancement.”1
Its early history is not, in fact, so simple as that. In the days of high feudalism, the charter of Henry I (1100) shows that “the widow or other kinsman . . . shall be guardian of the land and of the children” of a deceased baron, “and I order that my barons conduct themselves similarly towards the sons or daughters or widows of their men”.2 We first hear of the general principle of the lord’s right of wardship in 1176.3
Even in the tenth century, we find Bishop Oswald of Worcester taking an interest in the re-marriage of the widows of his tenants, and in the Confessor’s day, apparently, another bishop of Worcester gave the daughter of his tenant and her land to one of his knights.4 By 1100 the King requires his barons to consult him (without fee) when marrying their daughters; if the baron is dead, the King may marry his daughters and dispose of their lands.5 The same rule is stated under Henry II.6 A vast extension of this practice took place soon after Glanvill’s day (c. 1188-1189), for in 1193 we find the King selling the marriage of male heirs.7 So marriages were added to wardships and terms of years in the category of “chattels real”. Since this particular example was an interest in young people who might elope, and were often “ravished” (i.e. kidnapped), the attempts of the law to deal with the problem produced some interesting results.
Then, too, the tenant in knight service owed aid to his lord. The emergencies under which a lord could call for aid were at first numerous; it might be to pay his debts,1 to stock his land, to help him pay a fine to the King. But in the end aids are only due (unless by voluntary consent) to ransom the lord’s person, to knight his eldest son, and to marry his eldest daughter. Scutage, aids and similar payments were passed on from tenant to sub-tenant, until ultimately even the agricultural tenant was brought under contribution.2 The long struggle for the principle that taxation must be by consent was finally fought out in connection with the parliamentary taxation of personal property, but all the same it has a very early counterpart in the struggle to make aids limited in extent and occasion, unless freely voted by the consent of the tenants.
ESCHEAT AND FORFEITURE
Finally, we come to the incidents of escheat and forfeiture. Escheat is due to the lord of the fee on the death of a tenant without an heir, or upon his committing felony. It is important to note that escheat is not necessarily to the Crown; even in very recent times, if a mesne lordship be proved, an escheat might go to the lord and not to the Crown.3 The value of escheat to lords has depended a great deal upon the meaning of the word “felony”. In early times the felonies were few, but among them was the important one of deliberately refusing to do the services due to one’s lord; this being a felony, escheat followed upon conviction and the lord resumed the land. Soon, however, cesser of services ceased to be a felony, and the lord in many cases had no remedy against a tenant who wilfully withheld services until the Statute of Gloucester (1278). Moreover, in cases of felony the Crown established its right to year, day and waste, holding the land for a year and a day and wasting it before it went to the lord as an escheat. In the case of treason the whole of the traitor’s lands, of whomsoever they were held, were forfeited to the Crown and the lord got nothing unless the Crown granted the escheated land away; in that case the mesne tenancies revived.4
Another species of tenure is described as serjeanty and may be either grand or petty; in the former case it will resemble knight service. It is of little historical importance, although several serjeanties still survive in connection with coronation services.5
We now come to the tenure of socage, which really consists of a great variety of tenancies whose only common factor is that they are not servile nor military; sometimes homage may be due but not scutage, wardship1 or marriage. The services are sometimes purely nominal, being the result of gifts to younger members of the family or to servants, or of a sale effected by subinfeudation. Sometimes we find a moderate rent, especially where a church is the lord; sometimes labour services are due, some of them so numerous and heavy that it is not easily distinguishable from villeinage. It is clear that socage is gradually becoming more free and of higher social status, until in the end it becomes the one free non-military tenure, for the statute abolishing chivalry in 1660 converted it into free and common socage. As we have already mentioned, the rule of primogeniture was soon applied to socage land.
The guardian in socage was a near relative, and he was accountable to the heir for all the profits (less the heir’s expenses); he might indeed sell the heir’s marriage, but the price had to be accounted for to the heir.2 Nevertheless, lords sometimes tried to assert a right of guardianship even over socage tenants, but generally failed in the end.3
Tenure in burgage was peculiar to towns, although it varied considerably from place to place. A study of burgage will soon make it clear that a borough in the middle ages was still an agricultural unit, being in fact a village or a manor which has acquired a certain measure of self-government. Burgage tenure was not subject to aids, marriage or homage and only rarely to relief. Wardship, however, had been developed in the course of a different history from that of military tenures, and usually pertained to the kinsmen of the ward or to town officials. Frequently land was devisable by local custom, and if a tenant wished to alienate, his relatives often had the right to the first option (retrait lignager) while a second option may go to the lord (retrait féodal).4 Boroughs were liable to a form of taxation called tallage and to a variety of money rents.
Of tenure in free alms, or frankalmoign, it is only necessary to say that it was for the most part peculiar to the Church and that it owed feudal services unless it were of that sort which is called “free, pure and perpetual”, in which case it only owed spiritual services.1
Finally, a word must be said about villeinage, for we shall not obtain a true picture of the common law in the middle ages if we neglect the large mass of population which was excluded from many of its benefits. As we have already remarked, in the early thirteenth century the common law was hesitating whether to take cognisance of unfree land. It soon decided not to, and we have already mentioned the results which this had upon the villein’s legal position. It was not until the close of the fifteenth century that courts of equity and prerogative were prepared to give protection, cautiously and timidly, to villeins, principally in cases where intervention could be justified as sustaining a manorial custom, and not until the sixteenth century can we be sure that the common law would follow this example, while it remained for Coke at the beginning of the seventeenth century to establish the villein’s rights on the common law itself, under the name of copyhold. As for his personal status, Bracton assures us that a serf is free against all men except his lord, against whom the only protection he receives is that of life and limb. The law was never consistent in dealing with the villein’s personal property; in theory all a villein’s chattels were deemed to belong to his lord, but in practice we find the villein doing business, being fined, and paying taxes exactly like other men. His unfree status was hereditary, but a villein who ran away and was de facto free was spoken of as being “seised of his liberty”, and this seisin might become the basis of a reasonably good title to freedom, subject only to the condition that he keep away from the manor to which he belonged, for if ever he returned to his “villein nest” the lord can seize him and put him in irons to prevent him leaving the manor again (as many of them must have discovered).
TENURE AND ALIENABILITY
Moreover, it must be remembered that the existence of tenure of any sort added another complication to the question of freedom of alienation. We have already mentioned this subject from the aspect of the family, and now it must be considered from the point of view of feudal law. Alienation may be effected in two ways. The grantor may substitute the grantee in his own place in the feudal pyramid; or else he may subinfeudate by creating a new tenure between himself as lord and the grantee as tenant. By the time the feudal formula had been applied to all land, it became clear that either of these two methods of alienation might work hardship to the grantor’s lord. In the case of substitution the incoming tenant might be poor, dishonest, or unfriendly, and in either case the lord might find it more difficult to exact his services. In the case of subinfeudation the situation is different. Although the grantor may have disposed of the whole of his holding to the grantee, yet the feudal relationship between the grantor and his lord still continues, the only change being that the grantor, instead of being tenant of the land in demesne, is now only tenant in service, and instead of an estate in possession in land he has an incorporeal hereditament. Whatever services he owes to his lord are still due, and the lord can exact them by distraining any tenant who holds the land—in the present case, the grantee, the law allowing the grantee a remedy over against the grantor who must “acquit” or reimburse him. In the case we have put, the lord’s principal loss through his tenant’s subinfeudation is in respect of wardships, relief, marriage and escheat.
Let us call the lord A. and his tenant B. and suppose that B. holds of A. by substantial services, and that the tenement is large and productive of a good revenue. As long as this relationship lasts the lord A. derives a regular income from the services and has the expectation of important profits at irregular intervals. Upon B.’s death he may have the wardship and marriage of his heir, and if the heir is young the profits will be considerable; if the heir is already of age he can expect a substantial relief; if there is no heir at all, B.’s tenement will escheat, and the lord will therefore enjoy a very considerable windfall; so, too, if the tenant commits felony. Let us now suppose that B. sells his land. He receives a large sum of money from the purchaser, which, of course, is quite beyond the lord’s reach. B. then enfeoffs C., the purchaser, to hold of him by the nominal service of a rose at midsummer. As a result of this arrangement B. only retains a seignory of which the nominal service is the symbol. We have now to consider how this arrangement will affect A. The regular services due from B. to A. are still secure, but the occasional profits of A.’s lordship are seriously impaired. Relief which is based upon the value of the tenement will no longer be considerable, for B.’s tenement produces nothing but a rose at midsummer. The wardship and the marriage of B.’s heir are likewise worthless, for the tenement is actually of negative value and under the most favourable circumstances the guardian could only collect a few roses in the course of a minority of twenty-one years; if B. commits felony the lord’s escheat once again will only consist of the nominal services which B. reserved. It is clear that we have here a very difficult situation, which, moreover, must have very frequently arisen. The lord’s position is even worse when B. alienates to a church, for then the seignory which B. reserved would merely be a lordship over a corporation which never dies, never marries, and never commits felony.
FEUDAL RESTRAINTS ON ALIENATION
In Normandy this difficulty was met by the regular requirement of a confirmation of any tenant’s alienation by his lord and by all superior lords up to the duke himself; this enabled a lord to safeguard his interests.1 In England, however, this fairly simple requirement was not much developed, and for a long time there was doubt as to the extent to which a feudal lord could restrain alienation by his tenants. Glanvill makes no mention whatever of any feudal restrictions, which may be interpreted as meaning only that the King’s Court will not enforce them; there was a very remarkable case in 1203, however, when a plaintiff summoned his tenant to the King’s Court to show why he had sold his tenement to the plaintiff’s overlord (thus destroying the effectiveness of the plaintiff’s seignory). Unfortunately no result is enrolled.2 It is quite probable that such restrictions existed in some form and that they were enforceable through the lord’s feudal court. In the third Great Charter (1217) we find that a complaint by the barons evoked the following provision (c. 39):
“No freeman henceforward shall give or sell so much of his land that the residue shall be insufficient to support the service due in respect thereof to the lord of the fee.”
This is the first express limitation of a feudal character upon alienation in English legal history. When we come to Bracton he assures us that the arrangements we have just described may very well work to the financial loss of the lord, but nevertheless he has suffered no injury which can be remedied at law; if Bracton is reduced to this paradox we may be sure that it is because under contemporary law the lord was completely helpless in such a case, and that the provision in the Great Charter was nothing more than the expression of an unenforceable principle.
It was not until 1290 that the Statute Quia Emptores afforded a solution.3 By this statute subinfeudation was absolutely forbidden in the case of fee simple;4 alienation was henceforth to be by substitution with an equitable apportionment of the services. The statute expressly stated that alienation was to be free,5 and consequently the Crown had everything to gain through the enactment of the statute. No new tenures could be created, although in the inevitable course of events many old tenures became extinct, escheated to the lord above, or were forfeited to the Crown. The Crown was therefore gradually becoming less separated by intermediate tenures from the tenant in demesne. The reasons for the statute are clearly set out in the preamble, and there are no grounds for believing that the King had a deep-laid or far-seeing motive;1 on the contrary, it is expressly stated that the statute was made “at the prayer of the magnates”. Nor could its operation increase the amount of land subject to the special burdens of tenure in chief. Indeed, the great charter contained elaborate provisions to prevent that happening in any case,2 and the common law developed rules to protect mesne tenancies against the Crown as far as possible.3
During the reign of Henry III the grant of land to churches was becoming very frequent; more than that, tenants practised collusion with churches in order to defeat feudal services. The Great Charter of 1217 contains the first direct provision against this practice also:
“It shall not be lawful for anyone henceforward to give his land to any religious house in order to resume it again to hold of the house; nor shall it be lawful for any religious house to accept anyone’s land and to return it to him from whom they received it. If anyone for the future shall give his land in this way to any religious house and be convicted thereof, the gift shall be quashed and the land forfeit to the lord of the fee.”4
Here we have the serious sanction of forfeiture provided, and yet it was ineffectual to prevent these practices. At the very moment when Bracton was writing, the barons in their petition of 1258 gave as one of their grievances “that religious persons ought not to enter the fees of earls and barons and others against their will, whereby they lose forever wardships, marriages, reliefs and escheats”. As long as the barons were in the ascendancy they were able to secure legislation in this direction by c. 14 of the Provisions of Westminster (1259). At the final settlement after the Barons’ War embodied in the Statute of Marlborough this provision, however, was omitted—perhaps we may see here an effect of Henry III’s conspicuous favour to the Church which characterised the whole of his reign. It was under his son and successor, Edward I, that the problem was finally settled by the Statute of Mortmain (1279) which re-enacted in broader terms the provision of the Great Charter of 1217, again imposing forfeiture to the lord as a penalty for unauthorised alienations in mortmain.5 The most remarkable feature of this statute, however, is one which does not appear in the text. There is no provision in the statute for licences to alienate in mortmain; nevertheless, immediately after the statute was passed, such licences were lavishly granted by the Crown. It will be observed that the Crown dispensed from the statute and received fines for doing so without any statutory authority, and even in cases where the loss occasioned by the alienation fell not upon the Crown but upon a mesne lord.
TENANTS IN CHIEF
Tenants in chief of the Crown, on the other hand, were being subjected to increasing restrictions. Before they could alienate they had to satisfy the Crown that it would suffer no less thereby, and from 1256 onwards1 we find an increasing number of restrictions upon tenants in chief; which were soon set forth in an unofficial tract called Prerogativa Regis, which later ages sometimes mistook for a statute.2 As for the freedom of alienation granted by the Statute Quia Emptores, it was held that this could not be construed as restraining the Crown in the absence of express words to that effect.
In this and the preceding chapters we have therefore traced the development of the freedom of alienation (except into mortmain), and the removal of the somewhat vague restrictions based on ideas of family interest and the interests of the feudal lord. Even the Statute of Mortmain was easily dispensed with, and we may therefore assume that by the close of the thirteenth century land was freely alienable by all except tenants in chief of the Crown.
THE ALIENABILITY OF SEIGNORIES
There remains to consider the point where the alienation is not that of a tenement held in demesne but of one held in service. How far can a lord alienate his seignory and compel his tenant to accept the new lord? It would seem that in general he can do so, the sole difficulty arising where the bond of homage exists between the old lord and the tenant. In such a case the tenant is entitled to object if the incoming lord is his mortal enemy or too poor to be able to sustain the burden of warranty which is such a valuable outcome of homage. Consequently we find that the King’s Court will compel a tenant to attourn all services to a new lord save only homage, and as to this it seems to have hesitated.1
THE EFFECTS OF TENURE
Occasionally attempts have been made to estimate the effects of tenure upon English law, but it is curious that the subject has been so little explored.2 A comparison between English and continental law in this respect should be fruitful, for on the continent the feudal lawyers admitted that tenure divided the ownership of the land between the lord and the tenant.3 English law refused to admit this proposition. Instead of regarding lord and tenant as dividing between them the ownership of one thing, it looked upon each of them as a complete owner of two different things, the tenant being the owner of the land in demesne and the lord being owner of a seignory, which, although incorporeal, was treated in every way as property. One result, therefore, of the doctrine of tenure as it was developed in England, was not to divide ownership between lord and tenant but to add the lord’s seignory to the growing list of incorporeal hereditaments which mediaeval law was particularly fond of handling on exactly the same lines as real property.
The Statute Quia Emptores did much to create a great gulf between the fee simple and the lesser estates; a fee simple could not be subinfeudated, but the lesser estates were expressly removed from the operation of the statute. Tenure continues to be created, therefore, by means of sub-infeudation in a case of life estates and estates tail;4 particular tenants all hold feudally of the reversioner or the remainderman in fee. It is important to remember that English law treated these two types of tenure in different ways. The tenant of a fee simple by virtue of a subinfeudation (which must have dated from a time earlier than 1290) was regarded as an unrestricted owner and the interest of his lord was no limitation upon his own; the tenant held the land and the lord held the seignory, both of them in complete ownership.
When we come to the tenure of estates less than a fee, we find a very different scheme of things. The tenants in this case are consistently treated in the mediaeval cases as something less than owners, and it soon becomes the theory that the total of the interests of all the tenants, together with that of their lord (the reversioner or remainderman in fee), constitutes the ownership of the land in question. Moreover, since reversions (and sometimes remainders) in fee were seignories, the law could treat them as vested estates, and not merely as expectations. We therefore find that in the case of the entail, ownership is very successfully divided between the parties, while in the case of the fee simple, lord and tenant both have the fullest interest recognised by the law, the one in the land and the other in the seignory. This division of ownership in the case of the entail is certainly the origin of the common law system of estates and has therefore played an enormously important part in shaping the law of real property, but there is no reason to believe that this division of ownership is the result of tenure; if tenure involved divided dominium, then we ought to find ownership divided between a lord and his tenant in fee simple, but, as we have seen, this is not the case. It is less easy to see how the existence of horizontal hereditaments can be regarded as a result of tenure, as has been suggested by Mr Hogg.1
Direct results of tenure are hardly to be expected, therefore; as the system was worked out by the courts the seignory was regarded as an incorporeal hereditament which was “real property” in the person who held it. There was the curious rule that one cannot be both lord and heir, but the immense complications it engendered could be fairly well avoided by refraining from taking homage, and (later) by making a gift in tail instead of in fee; after Quia Emptores the rule could not be extended.2
The indirect results were more serious. The burden of the feudal incidents bore so heavily on tenants that the history of real property law is largely concerned with attempts to evade them. On the one hand lay the possibility of separating the enjoyment of land from the legal title to it—hence the long history of the use. On the other lay various devices to ensure that he who was really the heir should take not as heir but as purchaser, so avoiding the relief; this gave us the contingent remainder and the Rule in Shelley’s Case. In short, the persistence of a system which had long ceased to correspond with the real social structure of the country, although it continued to be an important source of revenue to large numbers of landowners as well as to the Crown, inevitably drove tenants to devise evasions, with the result that the law was warped beyond endurance.
WARDSHIP AND THE FAMILY
The complete feudalisation of the common law is well illustrated by the law of wardship. Henry I in 1100 had indeed recognised the right of the widow or relatives to have the wardship of the land and children of a deceased tenant.1 Very soon, however, feudal interests prevailed over family ties. The orphaned infant was treated as an adjunct to his lands: if he had lands held of several lords, the wardship of his body went to the lord of the oldest tenure, the lands being in the wardship of their respective lords.2 The feudal guardian, however, was in no sense a Roman curator and there is nothing in the common law corresponding to that institution. A guardian did not represent an infant in court or out of court, and his concurrence added nothing to the validity of an infant’s acts. Infants litigated freely and needed no formal intervention of guardians or even of “best friends”.3 For feudal heirs the courts were sufficient protection, with their rules on the demurrer of the parole (suspending most important actions during minority), and the writ of entry dum fuit infra aetatem (emabling him to recall gifts made during infancy). It was the infant burgess who really needed legal help, but the common law was not concerned with him, for the city of London and other jurisdictions were accustomed to manage infants’ businesses and watch their investments—matters in which local knowledge and constant attention were essential.
Even family solidarity made little resistance to the feudal conception of wardship. The feudal lord regularly took an infant from his mother (we often see her buying him back), but a lord cannot take an infant from his father.4 The father’s right to his own heir is protected by law, and by an action which is typically feudal.5 Indeed, not infrequently a father will “sell” his own heir,6 and as late as 1558 a statute against abducting children from their parents will only apply to heirs or heiresses.7 Such other rights as parents may acquire over children not their heirs seem to be based on the singular fiction that they are “servants” within the scope of the old labour law.
THE RISE OF THE ENTAIL
As we have seen,1 it was possible under Anglo-Saxon law to impose limitations upon bookland which resemble the entail rather closely. There is no evidence, however, that this practice survived much later than the Conquest, or that it was used to any considerable degree even in Anglo-Saxon times. We have also remarked that one of the most frequent occasions for alienating land was the establishment of a younger branch of the family, and particularly the endowment of a daughter. It is in this latter that the origin of the entail must be sought.
The maritagium or “marriage” was a post-Conquest institution which in the course of time took fairly definite form as the result of many years of custom.2 The terms and incidents of a maritagium were perfectly well known and in many cases were not embodied in any written document. We do find a few examples, however, of deeds from the twelfth century which show us the principal characteristics of the gift in free marriage, and confirm Glanvill’s words. In the twelfth century the gift in maritagium seems regularly to declare that the donor gives the lands in question together with his daughter to the donee in frank marriage—it is worth noting that the earliest forms are gifts to the husband alone and not to the wife nor the two jointly.3 From Glanvill we learn the conditions attaching to such a gift. He tells us4 that if the marriage is “free”, the feudal services will not be due (for it is clear that he contemplates the establishment of frank marriage by means of subinfeudation). Feudal services, however, will revive at the moment the third heir enters. The descent of frank marriage seems already in Glanvill’s day to have followed the same canon as the thirteenth century would have expressed in the formula “to A. and B. and the heirs of their bodies”. As soon as the third heir enters feudal services revive—and clearly the presumption is that by this time (three generations average one hundred years) the new family will become established and perfectly capable of performing feudal services.
THE EFFECT OF HOMAGE ON MARITAGIUM
Glanvill also tells us that the third heir is the first one who shall do homage (whether the marriage is free or not) which henceforth shall be due from all his heirs. The reason for this is that while homage has not been done there will always be the possibility of the land reverting to the donor upon the extinction of the donee’s line. When, however, homage has been taken upon the entry of the third heir the lord becomes bound to warrant and his reversion is therefore destroyed.1 The evidence all goes to show that these feudal technicalities were imposed upon an older institution2 whose characteristics apparently were heritability by a limited class of heirs, failing which there would be a reversion to the donor unless three heirs in succession had entered; in the latter case the gift became unrestricted and the reversion was destroyed. Glanvill does not say so, but it would rather seem that until the third heir had entered the maritagium could not be alienated;3 it is only by supposing some such rule as this that the provisions concerning feudal service and the reversion take a consistent shape. Glanvill furthermore assures us that until homage has been taken the tenants are in a particularly weak position, since the donor and his heirs are not yet bound to warrant. This seems to be a difficulty created by applying feudal rules to an institution which was really more ancient. In order to circumvent it the constitution of a maritagium was accompanied by a pledge of faith binding the donor and his heirs to maintain the arrangement. Now the pledge of faith was a purely ecclesiastical affair—a ceremony whereby the promisor put into pledge or pawn his hopes of future salvation as security for the performance of his obligations. Over such matters the Church courts had competence, and so litigation concerning a maritagium which involved the relationship between the donor and the donee could take place in ecclesiastical as well as in royal courts. It may be remarked that here as at many other points the Church exercised a powerful influence in insuring the stability of the family by securing an adequate economic foundation for each new family. As we shall see later on, the Church also used its influence to secure proper dower rights for the sustenance of widows. Finally, Glanvill informs us that “when a man has received lands with his wife in marriage” they shall revert to the donor after the death of the wife unless issue has been born alive; it is not necessary that it should have survived. This rule bears an obvious resemblance to the more general rule of “curtesy”, but for our purpose its importance lies in the fact that until the birth of issue the husband’s estate is very slender; it would be quite easy for a husband to get the impression that as far as he was concerned the gift only became a really valuable one upon the birth of issue. From this it would be a very short step to the theory that such a gift was really conditional upon the birth of issue—and this idea was to play an important part in the future.
EVOLUTION OF THE ENTAIL
In the period between Glanvill and Bracton we get an increase in the use of written documents and considerable variety in their forms. Instead of conveying an interest which is described simply as a maritagium, donors set out in detail the principal points of the arrangement. We therefore find gifts to the man alone, or to the woman alone, or to both of them jointly, and the descent limited to the heirs or to the heirs of the body of either or both, according to the fancy of the donor. It is during the same period, moreover, that we find the appearance of some other forms of gifts which we believe must be regarded as derived, or imitated, from the maritagium. The maritagium was the first institution (other than life estates) in which a reversion was saved, and it may very well be that donors would wish to devise some other means whereby a reversion could be saved, which could be used in other circumstances than those under which the maritagium was normally constituted. This is the explanation for the rise and early history of the entail. The most striking feature of the maritagium was the reversion to the donor upon the failure of the descendants of those whom he wished to benefit,1 and the entail was an attempt to extend this characteristic to gifts which were not to be confined within the traditional bounds of the maritagium, and, indeed, which might be entirely unconnected with any marriage.
Numerous difficulties arose. The only body of rules then in existence had been developed in connection with the maritagium. They were admirably devised for the purpose of governing property given to a new household in the expectation that it would become a permanent family, but when they were applied to these other situations they worked confusion and mischief. In the midst of this confusion Bracton was writing, and it must be said that he did nothing to make it clearer. He begins by stating an excellent principle; all the limitations expressed in the gift (which taken together he calls the modus) must govern the gift, “for the modus will override common law because a modus and a covenant restrain the law”.1 If this principle had been observed, then the newer forms of gifts which we have described would have presented little difficulty. A gift to A. and the heirs of his body would have been construed along simple and fairly obvious lines. But Bracton immediately vitiates his principle by introducing implied conditions, and consequently the modus will not prevail in actual practice, for the law will presume a number of implied conditions which the donor did not express and probably did not contemplate.
There is no doubt that in this passage Bracton has had in mind certain portions of Roman law on the matter of conditional gifts. It would be unfair, however, to accuse Bracton, personally, of using his Roman learning in a place where it did not belong. If Bracton treated these gifts as conditional it is because he had some grounds for doing so in contemporary opinion, and there is no evidence that Bracton was the originator of the doctrine.2 We have already suggested that such an opinion might easily arise in connection with the maritagium, for the husband’s estate under this arrangement depended to a very large degree upon the birth of issue, and he might very naturally have regarded it as being conditional upon that event. So, too, the donor might likewise have imagined that his gift was in a sense conditional, for it is natural that he should intend the gift to be the foundation of a new family, and if that family did not become established, then the gift should revert to the donor. To him, also, the maritagium may therefore have looked very much like a gift conditional upon the birth of issue. Then, too, it must be remembered that in practice the donor may often have remained in possession, so that the donees did not get seisin until later. This was convenient, no doubt, but risky;3 but once again, donors might easily get the impression that a maritagium was not a complete gift unless the donees founded a family. In view of all this Bracton not unnaturally looked to his Roman books for light upon the treatment of conditional gifts, for in Bracton’s day the English law was evidently very unsettled; the traditional maritagium was undergoing numerous variations and donors were devising all sorts of fancy limitations, while many gifts containing limitations of this sort could hardly be described as maritagia at all.
BRACTON ON CONDITIONAL FEES
Bracton begins his discussion by the somewhat fruitless classification of practically every sort of gift which is not in fee simple as a conditional gift, throwing together in one category the maritagium, gifts to religious houses, to bastards, gifts for life, for years and fee farm.1 This, of course, is not very helpful. He then proceeds to say that the modus will control the line of descent and exclude heirs of any class except those named in the modus, while upon the failure of the prescribed class of heirs there will be a reversion to the donor, which if it is not expressed in the deed will be based upon an implied condition—which is Bracton’s way of saying in Roman terms that as a matter of custom there always has been a reversion in such cases, and that it is part of the legal institution of the maritagium and need not be set forth specially in the deed. He then proceeds to develop this curious theory: a gift to A. and the heirs of his body by a particular wife (an example of a maritagium) gives to A. a life estate only until the birth of an heir; upon that event the life estate swells to a fee simple; if the heir predeceases the donee that fee simple will shrink to a life estate. On the other hand, a gift to “A. and his heirs if he have heirs of his body”, once it has become a fee simple upon the birth of an heir,2 will never shrink to a life estate again on the failure of that heir; the reason for this, it seems, lies in the fact that the former gift must be construed as a maritagium whose aim is to endow an enduring family, while the second is expressly conditional. Consequently, the eventual failure of issue in the case of a maritagium reduces the donee’s estate to a life interest, thereby assuring the reversion after the death of the wife and of the husband (who will be entitled to a sort of curtesy even although the issue has failed).
MARITAGIA BECOME ALIENABLE
Bracton’s most striking remarks are on the subject of the alienability of the maritagium. The donee has only a life estate until issue is born; but then—
“if heirs of the prescribed class are born, they only are called to the succession; and if the feoffee has alienated to someone else, that alienation is good and his heirs will be bound to warrant, since they can claim nothing save by succession and descent from their parents—although some people think that they were enfeoffed at the same time as their parents, which is not true.”1
It certainly seems that Bracton here lets technical rules defeat the modus whose power he so highly praised on this very page, for he uses the rule that “heirs” is a word of limitation to enable the donee to alienate so as to disinherit the heirs. This clearly defeats the intention of the donor and flouts the modus. Bracton’s Romanism is not to blame, for it is clear that his learned language is merely expressing the state of contemporary English law.2 At the moment he was writing, the insurgent barons had drawn up a list of grievances (called the Petition of the Barons, 1258), c. 27, in which we have this complaint:
“The barons pray remedy concerning the alienation of maritagia in such cases as this: If one give a carucate of land with his daughter or sister in marriage to have and to hold to them and the heirs issuing of the said daughter or sister in such wise that if the said daughter or sister die without heir of her body the land shall wholly revert to the donor or his heirs, although the said gift is not absolute but conditional, yet women after the death of their husbands give or sell the said maritagium during their widowhood and make feoffments thereof at their will although they have no heirs of their body, nor have such feoffments so far been in any way revocable (by the donor). Wherefore the barons pray remedy that out of the equity of the law there be provided a remedy to recall such feoffments by reason of the said condition either by a writ of entry or in some other competent manner and that in such cases there should be judgment for the demandant.”3
From this it will be seen that the barons’ protest was against the rule which allows the donee (who by this time was often the woman as well as the man) to alienate in spite of the failure of issue. Their suggestion of a writ of entry clearly refers to the writ of entry at common law whereby a reversioner could recover land against the alienee of a tenant for life. The barons had to wait nearly a generation before they got a remedy.
THE STATUTE DE DONIS
The Statute De Donis, which is the first chapter of the Statute of Westminster II (1285), examines the whole situation and enacts:
“Concerning tenements which are often given on condition, viz. when one gives his land to a man and his wife and the heirs begotten of that man and woman, with an express condition added that if the man and woman die without heir begotten of that man and woman the land thus given shall revert to the donor or his heir; in the case moreover when one gives a tenement in free marriage (which gift has a condition annexed although not expressed in the charter of gift, to the effect that if the man and woman die without an heir begotten of the man and woman the tenement thus given shall revert to the donor or his heir); in the case moreover when one gives a tenement to one and the heirs of his body issuing, it seemed (and still seems) hard to donors and their heirs that the intention expressed in the gift so far has not been (and still is not) observed for in all such cases after the birth of issue to the donees of such a conditional gift, the feoffees have so far had the power of alienating the tenement so given and disinheriting thereof their issue against the will of the donors and against the express form of the gift; and moreover whereas on the failure of issue of such feoffees a tenement so given ought to revert to the donor or his heir according to the expressed form in the charter of the gift, nevertheless donors have been thus far excluded from the reversion of their tenements on account of the deed and feoffment of the donees of the conditional gift, although the issue (if there were such) had died—which was manifestly against the form of the gift.
“Wherefore our lord the King perceiving how necessary and useful it is to appoint a remedy in the aforesaid case, has established that the will of the donor according to the form manifestly expressed in the charter shall henceforth be observed, in such wise that those to whom a tenement is thus given upon condition shall not have power of alienating it and preventing it from remaining to their issue after their death, or else to the donor or his heir if issue shall fail, either by reason that there was no issue at all or if there were, that the heir of such issue had failed.”1
The preamble mentions the three cases of a gift (a) to husband and wife and the heirs of their bodies, with a reversion expressly reserved, (b) in “free marriage” (which will be construed in law as containing by implication analogous provisions), and (c) a gift in the form merely of “to X. and the heirs of his body”. It states the mischief of the existing rules to be that on the birth of issue the donees can alienate and so (a) disinherit their issue and (b) destroy the reversion, and (c) when there has been issue which has failed, the donee can defeat the reversion. For remedy, the statute enacts the general rule that the form of the gift is to be observed so that a donee cannot prevent the tenement either descending to his issue if such there be, or reverting to the donor, if there be no issue. As the machinery for its application, the statute gives the forms for a writ of formedon in the descender (“because in a new case, a new remedy must be provided”): it remarks that formedon in the reverter is already sufficiently common. It neither mentions nor implies any remedy for remaindermen.2
THE DURATION OF AN ENTAIL
An examination of the use of the word “issue” in the statute will show that its meaning was not an indefinitely long line of descendants of the prescribed class, but only the first generation; this is clear, for the statute speaks of “issue or the heir of such issue”.3 It therefore follows that the statute only assures the inheritance to the issue of the donee, that is to say, his heir in the first generation. The statute imposes no restraint upon an alienation by the issue. This point was raised in 1311 when the famous Chief Justice Bereford admitted that this was the literal meaning of the statute, “but”, he said—
“he that made the statute meant to bind the issue in fee tail as well as the feoffees until the tail had reached the fourth degree, and it was only through negligence that he omitted to insert express words to that effect in the statute; therefore we shall not abate this writ.”1
According to another reporter Bereford’s words were these:
“Herle. That case was one of free marriage and in naught similar to the present one.
“Bereford, C.J. I take the law to be the same in both cases, for in both cases the tail continueth until after the fourth degree; and you are to know that we will not abate the writ in these circumstances.”
From this passage we can clearly see the state of affairs in 1311. The Statute De Donis had been in operation for a quarter of a century and it is not surprising to find that so distinguished a lawyer as Herle (who afterwards became Chief Justice of the Common Pleas) should venture the opinion that there were now two forms of gift less than a fee simple, the maritagium and the fee tail. It is just as significant, however, that Bereford indicates the historical relationship between the two. So strong does he feel that connection to be that he applies to the estate tail (which by now is beginning to be regarded as the creation of the Statute De Donis) a characteristic which was once peculiar to the maritagium. Back in Glanvill’s day a gift in free marriage remained free until the third heir had entered, and this in the canonical way of counting was the fourth degree.2 Bereford applies and extends this rule; the fee tail like the maritagium is to retain its peculiar characteristics until the third heir (or the fourth degree) enters. (As we have already observed, Glanvill does not tell us expressly that the maritagium in his day was inalienable,3 but we may well believe that until the end of the twelfth century it was rarely, if ever, disposed of.) True, the statute did not say this, but Bereford had a ready explanation. Chief Justice Hengham who drew the statute had done it carelessly; as he worded it the entail only lasted two degrees, but his intention was to make it last for four. This information Bereford, no doubt, derived from tradition, and there was no rule at that time to prevent him from setting aside the clear words of a statute when he had private information that the draftsman really meant something else. It is curious to observe that one of the greatest pillars of real property law had been erected so carelessly.
Bereford’s exposition of the statute, like many others of his striking contributions to the law, was not followed, and in the middle of the fourteenth century it was still an open question how long an entail was inalienable—the real test of Bereford’s doctrine could not, of course, be made for some time, for four degrees would normally last nearly a century. Indeed, in 1344 it was not certain that an entail would last even as long as four degrees—a very long discussion on this point was inconclusive.1 As to what happened after the fourth degree we have no indication until the year 1410 when we are told2 that “after the fourth degree frank marriage becomes formedon”—in other words, it is already the doctrine that an entail will endure as long as there are heirs of the prescribed class, and this doctrine is now transferred to the maritagium so that the maritagium now becomes of indefinite duration.
THE NATURE OF THE HEIR’S INTEREST
In discussing Bracton, we have seen that his difficulty was due to the application to entails of the doctrine that the word “heirs” is a word of limitation and not of purchase. This doctrine left no basis for the expectation of the heir in tail until the Statute De Donis gave him a legal estate and a form of action for its protection. This statutory reform, however, made it difficult to retain Bracton’s dogma; as things stood after the statute a gift to A. and the heirs of his body gave to the heir an interest which was protected by the writ of formedon in the descender; how, then, could it be said that the heir takes nothing by purchase? An examination of the attempts to resolve this difficulty would yield interesting results which we can only briefly indicate here.3 Shortly after the statute a case of formedon in the descender arose in which the demandant was under age.4 On principle the infant heir of an ancestor who died seised could sue at once for his inheritance, but as the ancestor had alienated this rule did not apply. The demandant therefore turned to the rule that an infant can sue as to his own purchase, and argued thus:
“After the gift was made to John our father and Alice our mother and the heirs of their two bodies, John and Alice had only a freehold before they had issue, for the fee and the right remained in the donor until they had issue; immediately thereafter the fee and right began to be in the person of the issue, and was out of the person of the donor, and then for the first time the issue became purchaser together with the others. Since he became a purchaser under age, judgement whether he ought not to be answered although still under age.”
This ingenious point was open to much criticism; the demandant had counted upon his descent, not upon his purchase, and Howard pursued the theory until it became an absurdity:
“If his father and mother were now alive and were impleaded in respect of the tenements and were to say that the tenements were given to them and the heirs of their bodies, and that they had a son named William begotten between them who was a purchaser equally with them who were in possession, and were to pray aid of him—would they delay the plea until their issue should come of age? No, by God.”1
Bewildered by these arguments the court took refuge in the fact that the demandant was nearly twenty-one, anyhow, and so he might as well be allowed to sue. The question of the heir’s interest continued to arise, however, and the proposition which Howard had regarded as absurd was soon put forward in all seriousness. The machinery of aid-prayer worked in this way: when a tenant for life was defendant in an action where the title to the fee simple was in dispute, he was unable to proceed alone. The proper thing for him to do was to “pray aid of the reversioner in whom the fee resides” in order that the reversioner could come and defend his own title. It sometimes happened, however, that there was collusion between the plaintiff and the tenant for life, in consequence of which the tenant for life omitted to pray aid of the reversioner and instead defaulted or “pleaded faintly” so as to allow the plaintiff to recover by judgment. In order to prevent the reversioner losing his rights through the dishonesty of his tenant for life in refusing to pray aid of him, a number of rules were evolved, many of them statutory,2 which allowed the reversioner to intervene and “pray to be received to defend his right”. Thus in 1307 Agnes, widow of Thomas Picot, was the surviving donee in tail, and upon her default in a real action her son and heir prayed receipt on the ground that his mother had only a freehold. His prayer for receipt was granted.3 In 1308 Bereford, J., recognised that the issue (“in whom the fee and right repose”) might have to be joined with the tenant in frank marriage for some purposes,4 and about 1311 we have a case on these facts: tenements were given in frank marriage, and the husband (who had survived his wife) attempted to alienate them fraudulently by having his alienee bring an action against him which he suffered to go by default. The heir intervened and prayed to be received, and his prayer was granted.5
Two of these cases, it will be noticed, involve what was later called a “tenant in tail after possibility of issue extinct” and clearly this situation directed attention to the peculiarities of such an estate.1 The doctrine we are concerned with was not to be confined, however, to the receipt of an heir in tail on the default of a tenant in tail after possibility, for in 1314 we get a formal theory of the entail announced by Serjeant Toudeby in these words: “In the case where tenements are granted in fee tail and the grantee has issue, the fee is severed from the freehold, and the fee is in the issue while the freehold only is in the father.”2 This time the court rejected the theory that the fee was in the issue. If this remarkable theory had prevailed long enough to combine with the development of the idea that an entail endured indefinitely as long as there were heirs, the law would have reached a very different result, for a tenant in tail in possession would always be a life tenant only, while his heir apparent held a fee—the books do not venture to say, however, that this would be a fee simple. By the middle of the fourteenth century this doctrine is extinct. Perhaps it was felt that if even the issue in tail had a fee, it would be difficult to describe what the reversioner had.3 As late as Richard II, we occasionally find hints of uncertainty, even among the learned. Thus in 1387 Holt, J., suggested that if land is given to A. and the heirs of his body, it will descend to such heirs born after the gift, and not to issue already in existence when the gift was made. The serjeants ventured to dissent from this view.4 From the middle of the fourteenth century onwards we can clearly see the growth of the dogmas which are to be fixed in the middle of the fifteenth century in the great treatise of Littleton where we find the classical doctrine, and can appreciate the length of time which separates it from the desperate attempt of Bracton to maintain that the maritagium and similar so-called conditional gifts were no more than fees simple subject to a peculiar line of descent or to a condition as to the birth of issue. Attempts to identify the fee tail and the fee simple had failed, whether they be Bracton’s attempt to place the fee in the donee or Toudeby’s attempt to place it in the issue, and the inevitable conclusion was at last reached that an entail in fact divides the fee among different people. The use of the word “tail” curiously illustrates this. Coke and all the old books are correct when they say that it is derived from the French verb tailler which means “to carve”. But this word “carve” has two senses. In the first place it may mean to give a particular shape to a thing as an artist does to marble; illustrations of this sense are common. Thus, when counsel indulged in some wishful thinking about law, Bereford, C.J., remarked, “Vous taillez la leiauxicom vous le volez”—“You fashion the law as you like it”.1 This was the original meaning of the fee tail, for the descent of the fee was limited—taillé—to preordained lines. But in the view of Coke, tailler takes the second sense of the word “carve”, for to him a fee tail consists of a fee which is cut up and partitioned among the various parties to the entail;2 in Coke’s thought to carve an entail was analogous to carving a joint—a certain amount is cut off and a certain amount is left; adding them together we have exactly one fee simple.
THE COMMON LAW ESTATES DOWN TO 1540
In the preceding chapters we have seen that a fee simple was inheritable by primogeniture since about 1200; that it was alienable without the consent of presumptive heirs since about the same date; and that nearly a century later it became freely alienable without the lord’s consent as a result of the Statute Quia Emptores of 1290. The first two of these advances had already been made by the time of Bracton, and from his day, too, we have a large number of surviving charters which attest the frequency with which land was transferred.1
THE FEE SIMPLE
Bracton has some interesting observations upon the nature of a fee simple, and one of the most remarkable things about them is the fact that he approaches the subject from the point of view of current conveyancing forms. This is somewhat unfortunate, for those forms grew up as a matter of convention and were not settled by men who were particularly concerned in defining the nature of a fee simple, their main care being only to use a form of words which had a conventional meaning; whether that form, literally interpreted, would have expressed the exact nature of the operation involved was of less importance. The thing that mattered was to use a form of words which had a recognised legal effect. However, when Bracton discusses the nature of a fee simple he does so by means of a commentary upon the conventional charter of feoffment.1 In his day a fee simple could be granted by a deed which said that the donor gave and granted and by his charter confirmed to the donee and his heirs the land in question, to have and to hold by specified services either of the lord of the fee or of the donor, and that the donor bound himself and his heirs to warrant the donee and his heirs against all men. Bracton’s discussion centres around the word “heirs”. A gift to A. and his heirs was the conventional form for conveying the maximum legal interest, a fee simple, and Bracton first of all has to explain that in spite of the words such a charter conveys the whole estate to A. and nothing at all to his heirs; as we should say to-day, “heirs” is a word of limitation, but not of purchase. As the discussion proceeds more difficulties appear. A gift to A. and his heirs gives the full estate to A. and nothing to his heirs, but neither does it give anything to the assigns of A. If the donee A. alienates over, can this alienee claim the benefit of the warranty which the donor bound himself to give only to A. and his heirs? Bracton thinks not, and apparently this opinion was widespread, for we find about this time numerous charters in favour of the donee, his heirs and assigns, evidently drawn to meet this situation. Under such a charter the donor would be bound to warrant A., his heirs and his alienee. By the time we get to the beginning of the fourteenth century the word “assigns” ceases to be necessary—at least such was Maitland’s opinion, adding that “on the whole we cannot doubt that the use of this term played a large part in the obscure process which destroyed the old rules by which alienation was fettered”.2
In Coke’s words “a reversion is where the residue of the estate doth always continue in him that made the particular estate”. Applying to ancient cases the doctrines of his own time, Coke, and following him Challis, set forth the proposition that there could be no reversion after a conditional fee.3 This is completely erroneous. De Donis expressly tells us that there was already a writ to secure reversions, and there are cases on the Plea Rolls to confirm this. The result of the statute was, however, to strengthen the position of the reversioner very considerably by providing that the donee’s alienation should no longer be a bar to such an action, while at the same moment that De Donis was passed, another portion of the Statute of Westminster II clarified the law of receipt in favour of the reversioner (c. 3). Consequently there are two great characteristics of reversions during the middle ages. In the first place, they are not future estates, but present estates of which the reversioner is “seised”—not in demesne, certainly, but in service. Expressed in other terms, a reversion is a seignory over the tenants for life and the tenants in tail, and like other seignories in the middle ages was regarded with a good deal of concreteness. Secondly, there resulted from this attitude that liberal measure of legal protection which was due to “him in whom reside the fee and the right”, as the Year Books constantly put it. Hence the elaboration of the law of aid, receipt and voucher which had the object, and the result, of protecting the reversion against any machinations by the tenants of inferior estates. In the classical common law the reversion was, therefore, indestructible.
Estates in remainder were much longer in acquiring a definite legal standing. Here, again, the modern student must beware of the deduction on theoretical grounds by Challis that there could be no remainder after a conditional fee. This deduction is based upon the view that a conditional fee before the Statute De Donis was in fact a fee simple conditional; this is taking Bracton’s dogma too seriously, and Maitland easily showed from surviving documents that about one-half of the conditional fees of which we have record contain remainders limited after them.1 It is, of course, to the maritagium that we must look for our earliest indications. In the year 1220 we find a case involving a maritagium where this defence was pleaded: Geoffrey had two sisters, Beatrice and Matilda, and gave land in maritagium with Beatrice to Reginald fitz Ursy with this covenant, that if the said Beatrice should die without heir of her body, or if her heirs should die without heir of their body, the land should revert (sic) to the said Matilda and her heirs.2 Unfortunately, the decision in this case was made upon a point of pleading and so we do not get a full discussion of this “covenant”. It will be seen, however, that it is a clear example of a gift in maritagium to one sister with remainder in fee to the other. The fact that the word “revert” is used instead of “remain” is of little consequence, for the use of these words was far from settled.3
Bracton tells us that there is a writ for the use of remaindermen (or “substitutes” as he calls them) and that he will give us its form;1 but he does not do so. The frequent occurrence of remainders in thirteenth-century conveyancing seemed very strange when it was noted that no writ of formedon in the remainder was in existence for their protection, until after the statute. The inconclusive debate between Maitland and Challis was settled just fifty years later, when (in 1940) a writ of formedon in the remainder was discovered in a manuscript register of writs which can be dated 1282—a few years, that is to say, before the statute De Donis.2
As we have already noticed, the Statute De Donis itself does not say anything about remainders although it uses the word “remain” in the senses of “descend” and “revert”. The position of the remainderman was always less secure than that of the reversioner, particularly because he was unable to use the writ of right; this grave disability resulted from the fact that a remainderman could not say that he himself, or his ancestors, had ever been seised. Consequently, there were obvious advantages in creating remainders by fine instead of by deed.3 In 1311 a remainderman in fee successfully prayed receipt upon the default of a tenant for life.4 A generation later the point was argued afresh, and the same decision reached, in 1345; in this case a long discussion, no doubt heated, concluded with the oft-quoted words:
I think you will do as others have done in the same case, or else we do not know what the law is.
It is the will of the justices.
No, law is reason.”
In this case it was again held by the court that the remainderman was receivable, but it is significant how vigorously this opinion was contested, considering that it is the simplest possible case in which the question could be raised.5 Indeed, as late as 1472 it was possible to put forward some speculative doubts as to the possibility of even a vested remainder after a fee tail.6
EARLY CONTINGENT REMAINDERS
A still more difficult problem was the contingent remainder.1 The very earliest examples seem to have aroused little comment; for example, a fine (a particularly solemn form of conveyance) was drawn in this form according to a Year Book of 1304:2
“He granted and rendered the same tenements to the aforesaid man and his wife, to have and to hold to them, and to the heirs of their bodies begotten, and if they died without such heirs the tenements should remain to the right heirs of the man.—This, however, is strange seeing that the remainder was not granted to any certain person.”
In 1309 we get another fine which the Year Book reports thus:3
“B grants the tenements to Robert and renders them to him in this court, to have and to hold to Robert for his whole life of the chief lord of the fee; and after the decease of Robert the tenements are to remain to C and the heirs of his body begotten, to hold of the chief lord of the fee; and if C die without heir of his body, the tenements are to remain to the right heirs of Robert to hold of the chief lord of the fee.
“Bereford, J., asked who was to do homage.”4
In both of these cases it must be remembered that the rule in Shelley’s Case had not yet been formulated, and so we have in both cases a feudal difficulty which will weigh heavily upon contingent remainders in the beginning of the fourteenth century: when the remainder in fee is contingent, who is the person to do the feudal services pertaining to a fee simple? Whatever arrangement the tenant may make, it must not destroy the right of the lord to have some certain tenant all the time who will be responsible to him for the feudal services. A very curious case occurred in 1336.5 Lands were granted by fine to Osbern and Florence his wife for life, remainder to Geoffrey his son in tail, remainder to Austin the brother of Geoffrey in tail, remainder to the right heirs of Osbern. In a real action brought against her, Florence made default after default, whereupon one John prayed to be received, as right heir of Osbern. When it was objected that there were still in existence the two remainders in tail to Geoffrey and Austin, prior to his own remainder in fee, John urged that they were void on the ground that at the time the fine was levied neither Geoffrey nor Austin was in existence,6 and that it was only after the fine that Osbern and Florence achieved the requisite two sons to take the names assigned to them in the fine. The court held that the remainders to Geoffrey and Austin were bad but allowed John to be received as right heir of Osbern. It thus appears that although these remainders to named persons not in esse at the time of the gift were bad,1 yet as early as 1336 the court supported a remainder, contingent at first, which had subsequently vested.
Later still in 1388 a party brought detinue to obtain possession of a charter, alleging that he was entitled to the land to which the charter referred. It appeared that one W. gave the land to A. C. in tail, the remainder to the right heirs of A. S.; A. C. enfeoffed one B. with warranty and his executor (after his death without heir) gave W.’s charter to B. as a document of title. A. S. is also dead, and the plaintiff is suing as his right heir. Cherlton, C.J., observed: “You think that although A. S. was alive when the remainder was limited, yet since he was dead when the remainder fell in and had a right heir, that therefore the remainder is good.” The plaintiff was successful.2 The case is therefore consistent with the view which is to be found in other cases from 1336 onwards that if a contingent remainder in the course of circumstances subsequently becomes vested, then it is good enough. These decisions, however, were not reached without a good deal of discussion. In 1410 a determined attack on such a remainder was made, but it was finally held good.3 In 1431 Martin, J., upheld such a remainder, although Paston, J., remarked that it could not be proved by reason, i.e. was not defensible on principle; counsel added that the point had been argued in the moots.4
Littleton does not seem to discuss the question, but he does make it clear that in his opinion there were other sorts of contingent remainder of which he personally did not approve. Thus, in discussing the settlement alleged to have been made by Rickhill, J., in the reign of Richard II, Littleton argues against the validity of the remainders limited in it.5 According to what Littleton had heard, there were successive entails to the judge’s sons, with a proviso that if one of the sons should attempt to break the entail his estate should cease and the land should pass to the one next entitled. Such a proviso, in Littleton’s view, was a condition, and while he agreed that a reversioner could enter for the breach of a condition, a remainderman could not. Whether Littleton’s views represent what a court would have decided either in Littleton’s day or (seventy years earlier) in Rickhill’s day, it is impossible to say; nor is there any satisfactory proof that Rickhill ever made such a settlement. Even the enthusiastic Coke places it no higher than “those things that one hath by credible hearsay” which “are worthy of observation”.1
We may conclude from this evidence that, during most of the fourteenth and fifteenth centuries, the courts were willing to recognise remainders to the right heirs of a living person, in cases where that person died before the remainder fell in. Other types of contingent remainder seem hardly to have arisen in litigation.
It is noteworthy, however, that as early as 1431 it was recognised that there was a difference between grants by deed and devises.2 There were places (particularly boroughs) where land was devisable by local custom, and it was recognised that remainders (and other dispositions) which would be void in a deed might be good in a devise. It is therefore clear that the differences between dispositions by deed and those in a devise are at least a century older than the statutes of wills made by Henry VIII, and that the common law was considering these problems as they were presented by local customs long before those statutes permitted the devise of lands held by common law tenures. It is likewise clear that the peculiarities permitted in a devise do not derive from the freedom associated with the use, but were part of the tradition of local customs.
The difficulties connected with seisin in limiting remainders we have already mentioned. In part they were avoided by the device of giving seisin to the particular tenant, which seisin was held to enure to the benefit of the remainderman. This doctrine, however, had the important corollary that the remainder was dependent upon the life estate, and that the destruction of the life estate would involve the destruction of the remainder too. This doctrine was worked out in connection with vested remainders by Littleton, and was destined to have important results in later law.
THE RULE IN SHELLEY’S CASE
In spite of Bracton’s doctrine, attempts were still made from time to time to use the word “heirs” as a word of purchase. We have seen this in the history of the contingent remainder, while here we may note a series of cases which anticipate by two hundred years the famous rule in Shelley’s Case.3 In the reign of Edward II a few obscure references occur, and in the reign of Edward III we find some clear discussions of the problem involved. Thus in 1350 we find that lands were conveyed by fine to D. for life, remainder to K. for life if she survived D., remainder to the right heirs of D. The question was whether D. by his deed could have permitted K. (who was to succeed him as life tenant) to commit waste. As a mere life tenant he could not, but in the course of the discussion, Willoughby, J., observed that “according to some people, when the fee is limited to the right heirs of a certain person then the fee is in the ancestor”. To this proposition Serjeant Seton agreed, and the court held that the deed ought to be answered, whereupon issue of non est factum was joined.1 Again, in 1366 a case arose upon the following facts:2 land was given to J. for life, remainder in tail to his eldest son, remainder in fee to the right heirs of J. After the death of the life tenant and the extinction of the entail, Richard Sutton, second son of J., entered as the right heir. Thereupon the provost of Beverley distrained Richard for relief which would be due if Richard entered as heir, but not if he entered as purchaser. This discussion took place:
If the lease was made to your father for life with remainder to his right heirs then the father had the fee . . . and if you were under age the lord would have wardship and consequently relief.
He cannot avow upon us for relief as heir of the tenant in special tail, because we are not in as his heir.
I know very well what you want to say. You have pleaded that you ought not to have to pay relief since you are in as purchaser, being the first in whom the remainder takes effect according to the words of the deed; but you are in as heir to your father . . . and the remainder was not entailed to you by your proper name but under the description of heir; and so it was awarded by all the justices that the lord should have return of the distress.”
From this it is clear that there is very strong mediaeval precedent for the rule in Shelley’s Case, and that the foundation of it was the hardship to lords if their tenants were allowed to limit remainders to their heirs, and thus make them purchasers.3 This rule, therefore, like many others, once had a perfectly rational basis (while feudalism lasted) in protecting lords against serious loss through conveyances of this kind, which in those days would have seemed almost fraudulent. As with so many other troublesome rules, confusion was increased by the attempts which have been made by the courts to restrict its operation, and especially by the endeavours of Lord Mansfield to lessen its importance.4 As a result, doubt was thrown upon it, and a vast mass of litigation was needed to establish it anew.
We now come to dower, whose early history is singularly obscure.1 Ancient forms insist that it is a voluntary gift of a portion of his property made by the husband to the wife. Such seems to have been the law as late as Bracton’s day, although as early as Glanvill it was thought that church and lay law compelled the husband to make the gift. The gift might take place at the time of the marriage, although in some cases on the continent we find dower constituted many years after the marriage. In England the royal courts only recognised dower which was constituted at the church door, that is to say, at the moment of the solemnisation of the marriage; it naturally followed, therefore, that a husband could only grant dower out of land which he actually held at the time of the marriage. Informal or clandestine marriages did not confer legal protection upon dower constituted on such irregular occasions, for the marriage must be “solemnised”—although it would seem there was no need for the nuptial Mass. In this we see very clearly the hand of the Church, which was fighting a hard battle to make marriage a precise, definite and public ceremony, although it is curious to observe that the common law was (for a moment) ready to move faster in this direction than the Church.2 The common law also showed especial distrust of death-bed endowments—as also of death-bed marriages hastily contracted in the hope of legitimising the offspring. In England, the King’s Court refused to recognise dower constituted at any moment save at the marriage ceremony.
This is, generally speaking, the position of dower down to the time of Bracton. Shortly afterwards, very important changes took place whose progress has not been traced in detail. Under the new order dower consists of one-third of the land held by the husband at the time the marriage was made, unless he has specified less. By the time of Edward I dower also attached to land acquired by the husband subsequent to the marriage,3 while an endowment of less than one-third soon ceased to be a bar to a widow’s demand of a full third. On the other hand, an endowment of more than one-third would be reduced by the court at the instance of the heir. In this way dower ceases to be a gift and becomes an estate arising by operation of law. Britton expressed the change very clearly: “Since the usage of dower is become law, a wife is sufficiently endowed although her husband say nothing.”1 If the husband alienated after the marriage the widow could recover one-third—and this is protected by statute2 against the husband’s warranty and against a collusive recovery, although it had long been possible to convey free of dower by fine, if the wife came into court and expressed her assent to it.
The forfeiture or escheat incurred by the husband’s treason or felony (which may be regarded as involuntary alienation) raised interesting problems. At the time of the Conquest at least one local custom held that forfeiture did not always exclude dower.3 By the thirteenth century, however, we find that the felon’s widow loses her dower.4
In England the widow’s interest has always been for her life only, but in some continental customs it was absolute, and so it sometimes played a part in the development of community.
It will be seen that dower is likely to interfere considerably with strict feudal notions; it reduces the resources of the incoming heir by one-third, and if that heir is a minor, it reduces the quantity of land which will be in the lord’s wardship by the same proportion. It is significant that the widow of a military tenant is endowed less liberally than the Kentish free-bencher; boroughs, too, often gave dower of one-half, and villein widows so frequently had the whole tenement in dower that there arose a sort of presumption that if a tenement was subject to dower of the whole, it was a villein tenement.
There were, however, mitigations in the strict rule. Dower obviously could not attach to joint estates (and for centuries this rule was a boon to joint feoffees to uses and to trustees). The relation of dower to entailed estates caused some difficulty for a time, until it was settled that the widow was endowable of an entail if, under the limitations, any issue of hers could have inherited. Thus a widow will have dower of lands which her husband held to himself and the heirs of his body: but a second wife is not endowable of lands held by the husband to himself and his heirs by the first wife.5 The greatest difficulty of all was naturally the risk to purchasers, who after the vendor’s death might have to answer an action of dower by his widow. At a comparatively early date, therefore, it became possible to avoid this situation by taking a conveyance by fine. In order to bar dower effectually, the wife was brought into court and examined, whereupon she could of her own free will resign her dower rights.1
With the close of the middle ages the increasing efficiency of settlements made dower less important and the rule appears in the Statute of Uses that a jointure will bar dower;2 at the same time equity refused dower out of a use, and the eighteenth-century Chancellors would not allow dower out of a trust. Since the Dower Act3 in England, dower ceased to be of practical importance, but that policy has not been adopted universally in America. The later distrust of dower is reflected in the fact that there was a tendency among some of the American colonies to enable a husband to defeat dower simply by deed or will, but later the stricter rule of the common law was received.
Tenancy by the curtesy of England is the husband’s right to hold his wife’s lands for the remainder of his life after her decease, if issue has been born alive,4 although it is not necessary that it should survive. Glanvill5 tells us this curious rule but gives it no special name; Bracton6 calls it “tenancy by the law of England”, while in the earliest Year Book7 it is described as “the curtesy of England”, which, as Maitland8 suggests, may be a name applied to it by appreciative husbands. In Normandy such a right only lasted until remarriage,9 but in England curtesy was for life, and even went so far as to allow a second husband’s curtesy to postpone the entry of an heir by the first husband, and thus to defeat the lord’s wardship.10 There is an old tradition, so far unconfirmed, that curtesy owed its origin, or at least its more striking features, to a royal concession.1 According to more modern views it seems to have developed from a wardship, first over the wife and next over the children.2
“To this, so we think, points the requirement that a child capable of inheriting from the wife shall be born—born and heard to cry within the four walls. This quaint demand for a cry within the four walls is explained to us in Edward I’s day as a demand for the testimony of males—the males who are not permitted to enter the chamber where the wife lies, but stand outside listening for the wail which will give the husband his curtesy. In many systems of marital law the birth of a child, even though its speedy death follows, has important consequences for husband and wife; sometimes, for example, the ‘community of goods’ between husband and wife begins, not with the marriage, but with the birth of the first-born. These rules will send back our thoughts to a time when the sterile wife may be divorced, and no marriage is stable until a child is born.”3
A good deal of legislation from Edward I’s reign4 was necessary to prevent the abuse of curtesy rights, and the Year Books contain many cases where husbands attempted to exceed their powers in dealing with their wives’ lands. In equity a husband could have curtesy out of his wife’s separate uses, which, however, she could easily defeat, and modern legislation giving married women control over their separate property reduced curtesy to a minimum, long before it was finally abolished.
THE LIFE ESTATE
The tenant by curtesy owed his estate to the operation of law, and soon the doweress also acquired a legal right independent of her husband’s act. Both of them, moreover, were asserting rights in the land of someone else—the heir. Both of those estates were for life, destined to assure the economic independence of their owners within the framework of the family fortune. Naturally they were regarded as freeholders, as seised of a free tenement, and as protected by the petty assizes. With the new system of primogeniture and free alienation, however, such provision became necessary for others besides widows and widowers, and so we find life estates created by act of the parties, and following in general the same pattern. This development (if our hypothesis is true) is closely paralleled by the development of the entail from the old maritagium.
The implications of the life tenant’s seisin were numerous and important. Its earlier sense included wide discretion in the use, and indeed, the abuse of the tenement. Thus Bracton1 describes an elaborate law of waste by doweresses, but the tenant for life can use the land as his own within reason; indeed, he has a case to show that the court will not take notice of his waste unless it was considerable.2 The guardian in chivalry, like the doweress, is clearly dealing with someone else’s land, and is heavily penalised if he commits waste.3 In Bracton’s day the remedy was still of a discretionary nature. The reversioner obtained from the king a prohibition, and if the tenant still continued to waste, he could be attached for breach of the prohibition. In 1267 there was a statute4 prohibiting waste generally, but the proceedings were still based upon the prohibition (now general instead of individual), until in 1285 summons was made to replace the prohibition; the reason given for abolishing the prohibition was that many people mistakenly thought that waste was not actionable unless it was committed after a prohibition.5
A further result of the life tenant’s seisin was the capacity to deal with the land in ways which were admitted to be wrongful. Out of his seisin he could enfeoff a stranger and create a tortious fee simple,6 nor could the reversioner have any remedy until after the life tenant’s death, when he could bring entry ad communem legem against the alienee. By statute7 in 1278, however, a doweress who acted thus forfeited her dower and the heir recovered immediately by entry in casu proviso, and the warranty of a tenant by curtesy was made less effectual. Alienations in fee by tenants by curtesy and tenants for life did not incur forfeiture until 1310.8 Besides a tortious feoffment, a collusive recovery against a tenant for life would also create a fee simple in the alienee, and a complicated mass of rules, largely statutory, endeavoured to minimise the mischief.9
THE TERM OF YEARS
The term of years has a long and peculiar history. In the early days of the common law the position of the termor was remarkably weak. In the early thirteenth century his only remedy was an action of covenant against the lessor, which was in effect an action for specific performance.10 As against strangers the termor had no protection, and so had to content himself with enforcing an express warranty (if he had one) of quiet possession against his lessor.1 Later, such a covenant will be implied. The disadvantages of a term of years were numerous; if the lessor died leaving an infant heir the term was suspended until the heir came of age, when the term was resumed;2 the lessor’s widow was entitled to one-third of the tenement for life as dower, and so the term had to be lengthened to compensate;3 again, if the lessor alienated he could (for a time) convey free of the term.4
About the year 1235 the great judge Raleigh invented a new form of action called quare ejecit infra terminum which Bracton assures us was meant to protect the termor against all disturbers and to give him the recovery of his term.5 This action would therefore be equivalent to an assize of novel disseisin. Such a remedy, however, was too drastic, and seems almost immediately to have been reduced to an action against those only who claimed under the feoffment from the original lessor.6 Although the lessor’s feoffment would not henceforth defeat a term, there were still other methods available, and until the Statute of Gloucester, c. 11 (1278), it was possible by means of a collusive recovery to convey free of the term; under the statute the termor was now allowed receipt.7 Meanwhile the termor acquired another remedy. This was an action of trespass de ejectione firmae which by the time of Edward II was available against all disturbers, but this time the termor only got damages and not the recovery of his term.
THE ECONOMIC ROLE OF THE TERM
In order to explain this curious history we shall have to examine the function which the term of years performed in the thirteenth-century economic system. The great problem, of course, is why the termor was not protected by the petty assizes. It is certainly not because the term of years was only held by unimportant people: bishops, monasteries and great lords are to be found holding terms of years. Nor can it be said that a term of years was non-feudal, for there was little appreciable difference between a life estate which did fealty only and a term of years which also involved fealty in many cases. Indeed, as a result of the real remedies devised by Raleigh and extended by the Statute of Gloucester, it was clear that the lessee had a tenement,1 and in Raleigh’s own day it was said that he was seised.2 For centuries it remained the law that if the lessor makes a release of the fee to a termor in possession, then the termor is seised of the fee without receiving a livery of seisin—indeed, the common assurance of a Lease and Release is only explicable on the ground that a termor was seised. But the great distinction was that although the termor was seised of a tenement, yet he was not seised of a free tenement, which alone would entitle him to protection by the petty assizes. Why, then, is a term of years not treated as a free tenement? Maitland’s solution ascribed this to the influence of Roman law which would reduce the term of years to an usufruct.
“In an evil hour the English judges, who were controlling a new possessory action, which had been suggested by foreign models, adopted this theory at the expense of the termor. He must be the conductor who does not possess, or he must be the usufructuary who does not possess the land but has ‘quasi-possession’ of a servitude. But they cannot go through with their theory. In less than a century it has broken down. The termor gets his possessory action; but it is a new action. He is ‘seised’, but he is not ‘seised of free tenement’, for he cannot bring an assize. At a somewhat later time he is not ‘seised’ but is ‘possessed’. English law for six centuries and more will rue this youthful flirtation with Romanism.”3
Against this theory must be placed the important criticisms of Joüon des Longrais, who first of all establishes the economic history of the term of years.4 The term of years was used for purposes which were immoral and speculative, largely to avoid the Church’s prohibition of usury. It seems that the principal object of the term of years was to enable money to be lent on the security of land at considerable profit to the lender. A capitalist would give to an embarrassed landowner a sum of money down; in return he took a term of years sufficiently long to enable him to recover the capital, together with his profits, out of the revenues of the land. On the face of it this transaction was merely the sale of a lease in return for a lump sum, and technically it would seem to avoid the objection of usury. The termor, therefore, is not unnaturally placed in popular literature in very bad company among usurers and other scoundrels who prey upon society.1 A termor was no doubt seised in Bracton’s day, but there was every reason for not calling his tenement a free tenement. Joüon des Longrais has shown that the free tenement of which the estates for life, in dower, by curtesy, in tail, or in fee simple are examples, is a very different thing. The free tenement which the petty assizes protected consists of “family property which is up to a point permanent, productive of revenue”. The essence of the free tenement is that it should be the permanent and normal economic basis of the family. Herein lies the importance of giving it full and speedy protection, and for this purpose the petty assizes were invented. Contrasted with the free tenements the estate of the termor is merely a speculative arrangement, calculated to evade the law against usury, made between a grasping money-lender on the one hand, and on the other a man whose difficulties temporarily compel him to part with his patrimony—and it must be remembered that during the middle ages a very wealthy landowner would usually find it difficult to produce a comparatively small sum of money at short notice. There was, therefore, no reason whatever for protecting the termor by those assizes whose object was to fortify the family and its means of subsistence against wrongdoers of another type. Viewed in this light there is ample explanation for the refusal of the common law to allow the termor to use the assizes.
“The object of the assizes is to protect the real property of the family which is the source of a constant revenue assuring the maintenance of a person at least for his whole life, all of which is implied in the words ‘seisin of a free tenement’; but the tenure of land by lease for a few years has none of these characteristics.”2
The law could not continue indefinitely to be governed by the social policy of a bygone age, and under Edward I it became necessary to give the lender of money a security in land much more solid than the term of years; of the statutory freeholds by which this was effected we have already spoken.3
THE HUSBANDRY LEASE
The term of years was not exclusively concerned with providing a form of financial security. Already in the late twelfth century land was granted for a term of years, sometimes with the accompanying agricultural stock, to tenants who farmed the land.4 Here, as in a number of other cases, we have to take account of the results of the Black Death and the economic revolution which followed it.1 One of these results was a slow increase in the number of people who took their lands under leases for terms of years, and so during the fourteenth century we find the rise of the husbandry lease as it exists to-day in England. At the same time, other and more effective methods were devised for rendering land a security for debt, and so the termor was no longer associated with the worst aspects of money-lending. For the future the termor will be regularly a freeman whose capital is insufficient to purchase much land, although he is active and enterprising enough to work the land of other owners. At the same time there was a tendency for the quantity of land under cultivation to increase somewhat since a good deal of waste was being reclaimed; such reclaimed land was frequently let out on lease. Small landowners of the yeoman class also seem to have found it often desirable to take an additional quantity of land under lease. The termor is, therefore, in every way deserving of the law’s protection. As early as 1383 it was clearly stated that the unexpired term could not be recovered when an attempt was made to use trespass de ejectione for this purpose.2 In 1454 it was again stated that this was impossible and that damages only were obtainable.3 In 1467 and again in 1481 we find the opinion (although not a decision) that this action might give recovery of the term;4 in 1498 or 1499 we get the first clear decision to that effect.5 The termor was very slow in getting a real action, but in the end he got the most useful and practical of all the real actions. While freeholders had to be content with assizes and writs of entry, the termor could recover his term by the swift and simple action of trespass. So great a convenience was this that freeholders began to try to secure the same advantage. Finally they succeeded by means of the device called the action of ejectment.6 In this way a good deal could be done without resorting to the older forms of action. This development took place during the sixteenth century and the finishing touches to the edifice of fiction were the work of Lord Chief Justice Rolle during the Commonwealth, but already at the beginning of the seventeenth century the action was so commonly used that Coke lamented the fact that the old real actions were becoming very rare. And so by a curious twist of history, the freeholder was glad in the end to avail himself of remedies originally designed for the protection of the humble termor.
USES AND THE STATUTE
English lawyers are apt to believe that the use, and later the trust, are the peculiar inventions of English law. It is perfectly true that they were developed independently and along original lines, but it is interesting to observe that other legal systems have reached something like the same result by a different road. As early as the Salic Law in the fifth century we find the salman, whose position partly resembles that of a trustee and partly that of an executor, but it is in Mohammedan law of the present day that we find a most striking resemblance to the trust in an alien system.
“In the wakf they invented a legal concept which equals if not excels in originality and practical utility the Anglican trust; it combines the ideas of trust, family entail, and charitable foundation. The grantor transfers the bare legal title to God and appoints an administrator to manage the property for the beneficiary; thus there are four parties to the transaction. This expedient has proved so flexible and so popular that in the Ottoman Empire three fourths of the city lands were held by this tenure.”1
THE HISTORY OF THE WORD “USE”
As for the origins of the English use, several suggestions have been made, and for a long time the favourite was to seek it in some aspect of Roman law, either the usufructus or the fideicommissum. It is now possible to state with some certainty that neither of these two institutions has any practical bearing upon the development of the English use. As Mr Justice Holmes observes, the existence of the salman in the Salic Law is proof enough that Germanic law was capable of developing from its own resources the idea of a feoffee to use.1
The English word “use” in this connection is in fact derived not from the Latin usus but from opus, the phrase being A. tenet ad opus B.—A. holds for the benefit of B. The use first occurs, as might be expected, in connections which are informal and non-technical.2 The Latin phrase ad opus occurs as early as Merovingian times in France and appears in England in the ninth century, where it is used to express the purpose of a gift or the object to which it is to be devoted. The phrase ad opus is to be found on the continent in much the same context as in England.3 In this connection it must be observed that chattels as well as land could be held by one person to the use of another, and that in some cases the beneficiary had a remedy at common law by detinue or debt, and in the case of money by the action of account.4 These, however, were personal actions and we had no analogous actions for land; consequently, in enforcing uses of land the common law did not have the necessary machinery for acting in personam.5 Besides this the common law seems to have adopted the policy of discouraging attempts to separate the enjoyment of land from the legal title, and for this attitude there was some justification; land was the basis of numerous public burdens as well as the source of those varied and valuable feudal incidents which we have had occasion to mention so often. The interposition of feoffees to uses between the beneficiary and his feudal lord would introduce endless complications into the feudal incidents and might, indeed, completely destroy them—and as we have seen on more than one occasion the common law was determined to maintain these incidents to the best of its ability.
EARLY HISTORY OF USES
Nevertheless, circumstances combined to promote the development of the use. The Crusades drew a large number of landowners from their homes to distant parts leaving their affairs in the greatest uncertainty, and we find frequent examples of crusaders and others, before their departure for the Holy Land or some other hazardous journey, conveying their lands to a friend upon various conditions which are sometimes cast in the form of a use.1 So, too, religious houses, following a practice which was common in every type of financial administration, would appropriate regular sources of revenue to specific purposes. When we come to the time of Bracton we find that he regards several of these questions as open to discussion. He even suggests that by means of a “condition” land could be made devisable.2 The problem of the use reappeared in connection with the controversy whether the Franciscan Friars were entitled to hold property by the rule of their order,3 while sokemen and villeins can only convey by surrendering their land to the lord “to the use of” the purchaser. As early as 1279 the papacy decided that it was lawful for friars to be the beneficiaries of property held by others to their use, and in other ways which upon the continent effected a similar result. In 1275 a statute ordained that when a guardian has proved to be fraudulent, the wardship shall be committed to a friend “to hold to the use of” the infant.4
FEOFFMENT AND RE-ENFEOFFMENT
A further element, which has not received sufficient emphasis, is the fact that a landowner could not change his estate without the intervention of strangers. For example, if he wished to make his wife a joint-tenant with himself, the only method available was to convey the land to a feoffee (or, more prudently, to several feoffees), who would then reconvey to the husband and wife jointly. A tenant in fee simple could create an entail for himself and a particular class of heirs and limit remainders only by first of all conveying to feoffees, who would then reconvey on the limitations agreed upon.5 Nor was the estate of these feoffees a mere fiction; the validity of the settlement depended upon their having a real and effective seisin, and if the settlor remained on the land, the settlement could be subsequently upset. He was, therefore, very much at the mercy of his feoffees during the interval between the two transactions.1 Much depended on their good faith, which will explain why clergy were often entrusted with these dangerous powers. It will be seen that the distinction between such feoffees and the feoffee to uses is very fine, and it seems highly probable that the connection between the two is close. The later feoffee to uses may easily have developed from feoffees of this sort when their duty to reconvey was postponed for a long interval, and in later times it would be easy to describe such feoffees as feoffees to uses.2
EARLY LEGISLATIVE INTERVENTION
By the close of the fourteenth century the use of lands must have been somewhat common. In 1377 the lands of fraudulent debtors, held by others for their benefit, are made liable to execution3 —and so begins the long association of the use with fraud. In 1391 a statute declared that uses in favour of corporations fell within the statute of mortmain,4 and in 1398 uses were declared forfeitable for treason.5 So far, the cestui que use had no legal protection—indeed, all these statutes were directed against him; but at length he also appealed to the legislator, and so we find in 1402 the Commons in Parliament praying for a remedy—
“Since rent charges and also feoffments of tenements in demesne are made to dishonest persons by way of confidence to perform the wishes of the grantors and feoffors, which dishonest persons fraudulently grant the said rents to other persons in respect whereof the tenants attorn and such feoffees also charge the tenements in demesne without the assent of their grantors and feoffors, who have no remedy in such case unless one be ordained by this Parliament.
“Let this petition be committed to the King’s council, for their consideration until the next parliament.”6
Already, however, the Council had begun to intervene in such cases; in 1350 we find the first case concerning a use before the “chancellor, treasurer, and others of the king’s council, being then in the chancery”. From this case it appears that a tax collector, who by virtue of his office was deeply indebted to the Crown, on his death-bed granted his lands, goods and chattels to one Thomas for the purpose of selling them in order to pay his debts to the Crown. Unfortunately the records of the case are extremely incomplete and all we have is a deposition containing these facts. From other sources it would appear that the matter may have got into the Council as the result of an attempt by his widow to compel the feoffee to hand over the balance of the proceeds after the payment of the debts.1
We may therefore conclude that although the cestui que use was often suspected of fraud and collusion, yet it was recognised that there was a legitimate place for the use. The case of 1350 possibly illustrates this; the petition of 1402 clearly argues this point of view, and during the fifteenth century cases become steadily more numerous.
It must be remembered that the earliest evidence, such as the statutes noted above, shows us a situation rather than an institution. As we have already suggested, the situation might be created in different ways and for different objects;2 it is only in the fifteenth century that these situations are for the first time grouped together under the one legal concept of the use.
THE GROWTH OF A STATUTORY POLICY
Time only added to the possibilities of fraud when unscrupulous persons employed the use, and we can trace the gradual development by the legislature of a policy. For example, it was long ago discovered that a wrongful tenant of lands could prevent the rightful owner from bringing his action, or greatly delay him, by conveying the land to feoffees to his own use, and so a statute of 1485 gave a remedy by allowing the writ of formedon to be brought against anyone who was receiving the profits of the land3 —it will be noticed that this statute adopts the momentous principle, already implied in the statutes of Edward III and Richard II, of treating the cestui que use as though he were the legal owner. All uses were not fraudulent, however, and Parliament recognised the fact by trying to remove one grave disadvantage which weighed upon cestuis que use, namely, that they could not convey a legal estate; and so another statute, in 1484, conferred this power upon them.4 This statute, too, treated the cestui que use as a legal owner, and so foreshadowed the policy of Henry VIII in the great Statute of Uses. This time the policy was not so fortunate. The feoffee still had the power to make a legal estate, and the grant of this power to the cestui que use concurrently could only add to the confusion since there were now two persons entitled to convey.
Under the Tudors the stream of legislation gathered speed and boldness. All trusts and uses of chattels to the use of the settlor were declared void1 in 1487; still more significant was an act of 1489 enacting that wardship and relief shall be due from heirs who are cestuis que usent of military lands;2 and in 1504 it was enacted that execution should lie against lands held in use, and that the cestui que use should enjoy all rights and defences in such proceedings as if he had the legal estate.3 Clearly, there was a policy steadily pursued for over a century and a half before the great statute of uses, the main object of which was to treat the cestui que use as having the legal estate. The most significant of all the acts, however, was one which dealt with a personal problem created by Richard III’s accession. As Duke of Gloucester he had several times been enfeoffed to uses by his friends; now that he was King it was evidently anomalous for this situation to continue. A statute therefore enacted “that such lands whereof he was sole seised for the use of others shall vest in the cestui que use”. For the first time Parliament ventured to transfer seisin from one person to another by its mere fiat.4
THE ESTABLISHMENT OF THE USE
By the end of the fifteenth century a fair body of law had been settled which gave a definite form to the use.
The commonest way of creating a use was by conveying the land to a number of joint-tenants; the advantage of this was greater security, since it was less likely that several feoffees would all turn out to be dishonest, while at the same time the rule of survivorship was a great convenience since neither dower nor feudal incidents attached upon the death of a joint-tenant—indeed, in the present day, the only reason for retaining the rule is its usefulness as between trustees. At the same time a joint feoffment eliminated complications due to dower. The uses might be declared at the time of the feoffment by writing or verbally, or it might be agreed that the uses should be those to be declared in the feoffor’s will. The fact that the uses might not be declared fully, or even at all, at the time of the feoffment, gave rise to the rule that a gratuitous feoffment of land of which the feoffor continued in possession presumed a use in favour of the feoffor, and from the reign of Edward IV we find a formal doctrine of “resulting” uses.5 Then, too, a bargain and sale from the reign of Henry VII onwards was taken as implying that the vendor who has received the purchase money, but who still remains in possession, will hold to the use of the purchaser;1 and this rule played a large part in the later development of conveyancing.
It was decided fairly soon that a corporation could not be a feoffee to the use of any other person,2 largely because the sanction which applied to relationships arising out of uses was the personal process of the Court of Chancery, and this was hardly effective against a corporation which had no body which could be coerced and no soul to be damned in consequence of a breach of confidence. It is clear, however, that a corporation could be a cestui que use.3 The interest of the cestui que use at this time strictly followed the corresponding legal estates—a married woman, for example, until the seventeenth century, had no separate use, her interest under a use being exactly the same as it would have been in land at common law, save that neither dower nor curtesy attached to uses.4 It was also a rule at this time that the feoffee must have a fee simple. The reasons for this were in a sense feudal, for it was stated in the form that tenure was so solemn a fact that the law would not allow even an expressed declaration of use to override it.5 Thus if A. enfeoffs B. in fee-tail, B. will hold of A. (for the Statute Quia Emptores does not apply to fees tail); the existence of this tenure between A. and B. is so solemn a matter that the law will prevent A. from imposing upon B. any further use. As the older books put it, A. has enfeoffed B. to hold to the use of B. and any subsequent declaration of use is “repugnant” and void. A little later we shall see the importance of this rule.
The effects of a feoffment to use were to place the legal title in the feoffees, and, consequently, they may, and indeed must, defend that legal title. Moreover, the heirs6 of the feoffees are bound by the use, but not purchasers for value without notice of the use, disseisors, abators, lords taking by escheat, or those who take by a title paramount. The law of forfeiture for treason had to be specially modified in particular cases (e.g. the rebel Earl of Northumberland in 1404) to ensure that the traitor lost lands settled to his use, and to prevent the forfeiture of legal estates held by him to the use of other persons.7
The interest of the cestui que use is best described as being at first just one more of a large variety of titles, weak or defective in varying ways and to various extents. The complication of the common law of real property by the early days of the sixteenth century must have familiarised people with the fact that a good many held by titles which fell short of perfection, and were not so very much the worse for it.
ADVANTAGES OF USES
There were, indeed, numerous countervailing advantages enjoyed by the cestui que use. In the first place he had the valuable privilege of being able to dispose of his land after his death by will, which was impossible in common law except in the case of certain lands (often burgages) which had been subject to the custom of devisability from of old. Then, too, settlements could be drawn with much greater freedom by handling uses than by handling common law estates, which by this time had hardened into an inflexible system. So, too, feoffees could be directed to sell portions of the land to pay the debts of a testator, which was impossible at common law. Then, also, there was the advantage of not having to use technical forms, for so long as the intention of the settlor was clear it was unnecessary to be as precise as in defining common law estates. It was soon discovered, also, that the use could be employed in order to secure the benefits of ownership to unincorporated bodies such as guilds, parishes and so on.1 And so by the beginning of the sixteenth century—
“it was a wholly unique form of ownership which the Chancellor had thus developed from a conscientious obligation of a very personal kind. It was not a true jus in rem because it was not available against the whole world. There were or might be many persons as against whom it could not be asserted. Then although it rested on the Chancellor’s power to proceed against the person whose conscience was affected by notice of the use, it was far more than a mere jus in personam.”2
There were, however, on the other hand, some good reasons for interference by the legislature, for in no other way was there much likelihood of removing several abuses attendant upon the development of the use; we have seen already that even in the fourteenth century the use was employed to defraud creditors, on whose behalf Parliament several times intervened.3 At the same time since unincorporated bodies could take as cestuis que use it was possible to place land into mortmain in spite of the statute. Then, also, during the disorders of the fifteenth century lands were frequently given to great lords to the use of the donor, who thereby secured the support of a great magnate in defending the title—thus raising the old problem of maintenance.
USES AND FEUDAL REVENUE
Finally, from the standpoint of national finance and politics, the most important aspect of uses was the impossibility of fitting them into the feudal system. Their effect was usually to defraud the lord of the incidents of wardship, marriage and relief. This was not so serious a matter for the great nobility, for to some extent they could obtain the same advantage by the same means against the Crown. But it will be observed that whoever gains by the arrangement the Crown is sure to lose, and this aspect of the situation was already apparent to Henry VII. In the next reign the matter became still more urgent. The great Reformation Parliament had accomplished a tremendous amount of epoch-making legislation, especially in carrying out the religious settlement. This settlement was viewed without enthusiasm by a large part of the populace, and Parliament itself was none too well disposed towards the Crown. Henry VIII felt that it would be unwise and perhaps unavailing to seek from Parliament a further grant of taxes, and was therefore left to depend upon the hereditary revenues of the Crown. Of these only the feudal incidents seemed capable of any great expansion,1 and here the situation was complicated by the existence of uses. Having just carried out the Reformation settlement and assumed the headship of the Church, it is not surprising that Henry VIII was ready to apply heroic remedies. He contemplated nothing short of a drastic revision of the common law along lines which would suit the interests of the Crown. In 1529 a proposal was drawn up in the form of a draft bill based on a treaty between the Crown and the peerage with this end in view.2 The King and the lords proposed this arrangement: there was to be only one estate in land and that a fee simple, except that peers of the realm were to have the privilege of entailing their lands; uses were only to be valid if registered in the Court of Common Pleas, and elaborate provisions were drafted to ensure the utmost publicity; the lands of peers were to be subject to feudal dues in respect to equitable as well as legal estates; they could also be entailed, devised and settled, but elaborate provisions ensured that none of these devices should defeat the feudal rights of the Crown; and finally, in return for the heavy burden of feudal duties it was proposed that the land of peers of the realm should be inalienable save by royal licence. This bargain, if it could have been carried out, was eminently satisfactory to the King and to the peers, for the latter in return for their liability to inescapable feudal duties acquired the privilege of having their fortunes assured to them by inalienable rights.1
THE KING’S DEFEAT
It has always been a feature of English society that there was no deep line drawn between the peerage and other classes. There were plenty of great landowners as wealthy and as influential as the peers, who were in fact untitled, and it was this large and powerful class which, combined with the common lawyers, defeated the 1529 compromise. The large landowners who did not happen to be peers found themselves deprived by these proposals of the right to entail or to make secret settlements or alienations; all the details of their family arrangements were to be proclaimed in the parish church, confirmed by the parish priest, and sealed by the mayor of the county town. Feudal incidents were to be rigorously exacted from them as from the peers, only the commoners got nothing in return. As for the common lawyers they saw in this arrangement the ruin of their profession; it left them no more interesting topic of study than a fee simple, save in the very few cases of peers, and at this moment there were but fifty peers of the realm. The use still remained and was to be the means of effecting settlements, and the common lawyers secured a provision for registering them in the common pleas instead of in Chancery, but the capture was of little value after the publicity clauses had robbed the use of its chief attraction. A combination of great landowners and common lawyers, therefore, defeated these proposals in the House of Commons and convinced the King that an alliance with the peerage had no chance of success. He therefore had to seek support elsewhere and that support would have to be in the House of Commons.
THE KING’S NEW TACTICS
It seemed clear that the common lawyers might very well turn out to be the key to the situation; in any case whatever settlement was eventually made would depend for its working upon the machinery of the law. And so, first of all, the lawyers had to be reduced to a tractable frame of mind, and to this end Henry VIII received with marked sympathy a petition complaining of the delays of the common law, its expense and its failure to do justice. This gesture gave the common lawyers to understand that the Crown might demand from them some very radical reforms, and once again the profession felt that its existence was at stake. At the same time numerous commissioners were conducting searching examinations into the affairs of the landed gentry, suspecting that the King’s rights were being defeated by the common lawyers’ allies. Various proposals were made in the course of the next few years, and gradually the attack now centred against the use.
“The list of grievances suffered by the realm from uses is long and detailed. It is written in two hands and there is a certain amount of repetition. In some cases it gives particular instances of inconveniences suffered, and at the end there is a summary statement of the various fraudulent purposes which uses had been made to serve. The writers insist much on the disadvantages of uses from the point of view of the cestui que use, of the public at large, of the King and lords, and of the law. The cestui que use is at the mercy of a fraudulent bailiff or feoffee; nor can he take action against a trespasser. He loses his curtesy, and his wife her dower. The King loses his forfeitures, and King and lords lose their incidents of tenure. The public at large is defrauded because no man can tell against whom to bring his action, nor is anyone secure in his purchase. The law is wholly uncertain—‘the openyons of the Justices do chaunge dely apon the suertyez for landes in use’. The use is ‘but the shadowe of the thyng and not the thyng indeyd’. It causes the law to be double, and to sever the real from the apparent ownership, ‘which is a grett disseytt’. ‘Where per case some one man takyth esyngler welth their be a hundrioth against one that takyth hurt and losse theirby, is yt a good law?’ the writer asks. He thinks that it would be a good thing if uses were ‘clene put out the lawe’. The document is an able statement of the case against uses; and it may well have been the raw material upon which those who drew the preamble to the statute worked.”1
THE STATUTE OF USES
Of these various schemes, one finally became the famous Statute of Uses (1536).2 Under this arrangement the King secured his feudal dues, but the price he paid was to the common lawyers instead of to the nobility and Chancery. Indeed, it was the common lawyers who gained most by the Statute of Uses. After a great deal of difficulty and some concessions from the Crown the statute finally passed.
“Maitland3 has truly said that the Statute of Uses ‘was forced upon an extremely unwilling Parliament by an extremely strong-willed King’. But I think that the evidence shows that this strong-willed King was obliged first to frighten and then to conciliate the common lawyers in order to get the statute through the House of Commons; and that probably their opposition caused the failure of his well-considered scheme for the registration of conveyances. If this be so the action of the common lawyers has had a large effect upon the form which the Statute of Uses and the Statute of Enrolments finally assumed, and consequently upon the whole of the future history of the law of real property.”4
The statute carried to its logical conclusion the policy begun by Richard III, whose statutes had allowed the cestui que use to be treated for certain purposes as though he were the legal owner. Under the Statute of Uses the cestui que use becomes the legal owner for all purposes, and is invested by the statute with the benefits of the mysterious seisin which is the essence of a common law estate. This transformation operated by the statute converting a use into a legal estate is described in the Act itself (s. 10) as “executing the use”. It is clear that professional opinion was ready for this transformation, for even before the statute we find common layers loosely describing the cestui que use as being “seised” of the uses.1 As for the King, he was to receive all his feudal dues unimpaired, for the uses will be executed and feudal incidents will attach to the legal estates created by the statute.
As for the common lawyers, they won a great victory over Chancery; under the statute they not only retained the entail but obtained jurisdiction over all matters arising out of uses, since under the statute they were executed and became common law estates. The landowners had less cause for satisfaction. They retained the entail and the use, but after the statute, uses could no longer be employed as a machinery for the devise of land,2 while at the same time the Statute of Enrolments3 (which was a part of the scheme) enacted that a bargain and sale of freeholds and fees must be by deed enrolled. The bargain and sale was a very popular form of conveyance depending upon the use for its operation, and so the statute in substance compelled publicity of conveyance—until a way was found to evade it by means of the lease and the release. Finally, if we are to consider the nation at large, it was they who paid the heaviest price, for the complicated diplomacy which ensured the passage of the statute depended upon the understanding that there should be no more talk of reforming the common law.
After a long and argumentative preamble—“the sixteenth-century equivalent of a leading article in a government newspaper upon a government measure”4 —the statute proceeds to enact that cestuis que usent shall be seised of legal estates corresponding to the estates they had in use. Then we come to the provision that a jointure shall be a bar to dower.5 It must be remembered that the statute did not propose to abolish uses, for in more than one place it contemplated the creation of uses in the future. Its object was to avoid the inconveniences which were caused by having two forms of ownership, one legal and the other equitable, by declaring that the beneficiary shall have a complete legal estate and that the feoffee to use shall have none at all. This altered the character of the use, but did not destroy it. The statute did not apply to active uses, nor to uses out of chattels real or personal. The great merit of the arrangement was that the greater freedom in conveyancing by means of the use was preserved and made available to common lawyers.
COMPLETION OF THE STATUTORY SETTLEMENT
To the landed gentry the Statute of Uses seemed a calamity, and in the rebellion of 1536, which described itself as the “Pilgrimage of Grace”, we find among numerous other grievances—the dissolution of the monasteries, the religious changes, the divorce question—a demand for the repeal of the Statute of Uses, particularly because it abolished the powers of devise hitherto enjoyed by landowners. Henry VIII was well aware of the seriousness of opposition when it came from so important a class as the country gentry. By this time the enforcement of any government policy (and Henry VIII’s revolutionary policies needed a good deal of enforcement) depended very largely upon the co-operation of the local gentry, who as justices of the peace were responsible for local government. He felt that the time had come for a concession to the landed gentry, and this took the form of the Statute of Wills1 (1540), which conferred complete powers of devise over socage lands, and over two-thirds of land held by knight-service, accompanied by the usual provisions (based on the principle that a devisee was to be deemed as in by inheritance) to safeguard feudal dues. Three years later the statute was amended in numerous points of detail.2 In 1540, following the usual Tudor policy of erecting administrative courts for special business, Henry VIII established the Court of Wards, whose duties were to be the supervision of the King’s feudal revenue especially as it was affected by the Statutes of Uses and Wills.3
THE LATER LAW OF REAL PROPERTY
AFTER THE STATUTE OF USES
Bacon, in a well-known passage, declared that the Statute of Uses was “the most perfectly and exactly conceived and penned of any law in the book . . . the best pondered in all the words and clauses of it of any statute that I find”. Anyone who reads the statute will be led to the same conclusion. An act of wide-sweeping scope, it is worded with care; after the fashion of the time, it contains a clear exposé de motifs in the preamble indicating its general objects; the first section enacts a clear and general rule, based on a tendency long apparent in legislation; this rule is unencumbered with exceptions and provisos, and (unlike previous acts) extends to all uses possible at that time, and executes them for all purposes; succeeding clauses foresee, and provide for, the situations arising under the operation of clause one. No statute before 1536 shows such evident signs of thoughtful care, and such clear and logical arrangement.
The objects of the act were obvious. First, it aimed at combining equitable and legal ownership and abolishing the screen of feoffees to use. In this it succeeded. No use, at this time, could subsist save upon the seisin of feoffees, and the statute successfully executed all uses. Secondly, it aimed at restoring publicity in dealings with land. The Statute of Enrolments1 was passed because it was realised that the use on a bargain and sale in favour of the bargainee who had paid the purchase money would be executed by the statute; to prevent this being employed as a secret conveyance, such bargains and sales were to be enrolled. Other conveyances were at common law and required livery of seisin. It is true that under the statute it was possible for legal estates to spring and shift in various ways but the general aim of publicity was attained, for it was no longer possible for a person in apparent enjoyment of land to escape the legal consequences of ownership by saying that the legal title was elsewhere. Once again, the statute attained its object. Two other aims were also realised, although later legislation decided that they were in fact undesirable. The virtual prevention of the devise of land was in fact an attempt to put the clock back a century or more, and the statute of wills soon recognised that this was impossible. The preservation of the incidents of tenure, achieved by the statute, had over a century of extended life; they, too, were abandoned in 1660.1
THE ATTITUDE OF THE COMMON LAWYERS
The common lawyers had a difficult situation before them, but one rich with possibilities. For something like a century after the statutes of uses and wills they could draw upon several bodies of law, and had the opportunity of welding them into a coherent and reasonable system. It was the great disaster of the sixteenth century that they failed to do so. The long reign of Elizabeth was occupied by a succession of judges who had great gifts of dialectic, and a taste for artificial refinement. The sweeping victory of the profession, as exemplified in the Statute of Uses, put them above the reach of criticism. The flood of new wealth released by the dissolution of the monasteries created a new and prosperous landed class, closely attached to the Crown, which could afford to tolerate a mass of real property law which steadily grew more fantastic. The legal profession became even more deeply entrenched in the House of Commons, and the excitement of religious and political controversy seems to have left no desire to raise the issue of law reform.
The materials available were, first of all, the common law itself. Littleton’s immortal work shows clearly that the mediaeval law of land was comparatively simple, reasonable and capable of expression in concise and orderly form. The one disturbing factor was the feudal incidents and the attempts to escape them. The law of estates was, apart from this, clear and simple. Secondly, there was the law of uses. The creation of uses was perfectly simple in 1536; its chief defect was the possibility of creating a use by words only—a difficulty which reappeared later in connection with trusts, and was easily removed by requiring all declarations of trust relating to land to be in writing.2 There was as yet very little law to decide whether any particular scheme of uses was valid or invalid. Thirdly, there was the institution of the devise. The Statute of Wills required that this should take effect as a legal estate, and at the moment it seems that there was little law to restrain testators in the disposition of their lands as they pleased.3
The common lawyers, therefore, had in their hands a vastly augmented mass of law, much of it comparatively new, and much of it in an amorphous condition. No doubt it was too vague in some places; no doubt, too, the fancy of settlors and testators needed restraint at times; but did the situation demand all the subtleties and complications which the sixteenth and early seventeenth centuries imposed?
LEGAL CONTINGENT REMAINDERS
As we have seen, the common law at the close of the middle ages recognised only one type of contingent remainder as valid.1 The doctrine was often stated in the form that there must be no interruption of seisin, but the real reason at first was the difficulty which ensued in the matter of feudal services, particularly if the contingent remainder is in fee, thereby leaving the lord without a tenant, and an interest without an owner.
To the middle ages, a lord deprived of a tenant seemed the greater difficulty. In the sixteenth century, however, the interest without an owner appeared more remarkable. Fortunately, the middle ages had refused to be troubled by this point,2 and so sixteenth-century lawyers were able to take comfort from the fact that all through history the law had tolerated the gap in ownership between the death of one parson and the appointment of his successor. Relying on this curious circumstance, they ventured to admit the possibility of such a gap between the moment when the grantor parts with his fee, and the moment when the contingent fee is ready to take effect.
Colthirst v. Bejushin (1550)3 is a sign of the changing view. Littleton’s discussion of Rickhill’s settlement4 was cited to the court in support of the traditional view that the death of a living person was the only contingency recognised by the law, but Montague, C.J., brushed it aside and stated that it was now settled law that a remainder may commence upon a condition, provided that the condition was not illegal or “repugnant”; the remainders limited by Rickhill he regarded as bad, not because they were conditions, but because they were “repugnant” conditions.5 The result of this case was, therefore, the recognition of an increasing variety of contingent remainders.
Even if a contingent remainder was valid, however, it might be destroyed in a number of ways. There was a rule, to which the common law courts clung tightly, that a contingent remainder must be supported by a precedent estate of freehold or by a right of entry.1 A contingent remainder to a posthumous son will therefore fail,2 for there is an interval between the death of the father and the birth of the son during which there is no freehold to support the remainder. This common difficulty was often avoided by limiting a freehold to the mother, but was still more satisfactorily removed by statute.3 Similarly, destruction might result from a tortious alienation by the tenant for life, or if he were disseised.4 Furthermore, if the estate of the tenant for life became merged with a subsequent vested estate, the result will be the destruction of any intervening contingent remainder. Such merger might take place owing to conveyance between the parties, or by descent, or by the operation of the rule in Shelley’s Case. During the Commonwealth a device was invented by Sir Orlando Bridgman and Sir Geoffrey Palmer (if tradition is correct) which consisted in limiting a remainder to trustees for the life of the life tenant. If the life tenant were to make a tortious feoffment, there would still be this vested remainder ready to support subsequent contingent remainders. This solution was generally accepted, in spite of theoretical objections.5 Meanwhile, the doctrine of merger created so many difficulties that some of it had to be abandoned. So a distinction was drawn between merger effected by means of conveyances between the parties, and merger resulting from the disposition of estates in the settlement. The latter type was so common in practice that the public had to be relieved of the results which flowed from a strict application of legal doctrine, and so it was held that the merged estates might “open and let in” the intervening contingent remainder.6
From the middle of the sixteenth century, therefore, the tendency was to enlarge the class of contingent remainders which the law would recognise, although still emphasising their destructibility. It has been suggested that there was a conscious policy behind this—the prevention of “perpetuities”. By the close of the middle ages the common law had, in fact, come to the conclusion that an entail could be barred;7 soon it proceeded to the further proposition that all entails ought to be barrable, and that this characteristic was inseparable from entails. Whether this paradox was maintained out of a deliberate policy of furthering freedom of alienation (as is often suggested), or merely out of reluctance to abandon the supposed logical results flowing from a particular combination of technicalities, it is difficult to determine. In any case, the courts seem conscious of the fact that if contingent remainders were allowed to become indestructible, the result would be to impede the alienation of land. In fact, entails could be devised which would be unbarrable for a considerable period.
The rules on the validity and destructibility of contingent remainders were drastic, and modifications had to be made, but the swing-back of the pendulum was assisted by the fact that the problem of perpetuities was now to be attacked from a more reasonable standpoint. With the establishment of a rule against perpetuities1 the danger was removed, and contingent remainders began to be viewed with less suspicion. The use of trustees to preserve them was sanctioned by the courts by the beginning of the eighteenth century,2 and no legislation became necessary until the nineteenth century. The abolition of large masses of technicalities then gave parliament the opportunity of restating the law in simpler and less artificial language.3
USES EXECUTED AND EXECUTORY
Besides the traditional common law, however, the courts now controlled a second system of property law, namely, that which had been transferred to them by the Statute of Uses. Before the statute, considerable latitude was permitted in the limitation of uses; certainly Chancery did not insist upon the observance of the common law rules on the derivation of estates. After the statute, there immediately arose the question as to how far the common law courts would continue this policy now that the uses were executed (or in the future might be executed) by the statute. There was, moreover, a further question. Besides the various cestuis que usent there were the feoffees to uses, and their position since the statute was at first uncertain, and later was expressed in very metaphysical terms. At first sight, this second question would seem settled by the statute: the feoffees have nothing, for the policy of the act was clearly to eliminate them from the situation. This was certainly the case in the simplest possible situation, where A. holds to the use of B. and his heirs. Under the statute A.’s seisin passes wholly to B. More complicated limitations, however, raised a difficulty which the sixteenth-century lawyers felt to be acute. If the feoffee had only a life estate, it was held that any uses limited would cease at his death;4 soon afterwards, in a case of a use for life, followed by a contingent use, a dilemma was discovered. The seisin of the feoffees passed by the statute to the cestui que use for life; was there anything left which could support the contingent use? The court felt that whatever the statute said, if there is a use, then there must be someone who is seised to that use. It therefore followed that the feoffees, although their seisin was already exhausted, still had something which would support the subsequent use. This something Dyer christened with the picturesque name of scintilla juris.1
Before the statute, no doubt, a use did require a feoffee for its creation and for its continuance, but the statute clearly aimed at eliminating the feoffee altogether. There were some lawyers who had a trust in legislation sufficiently strong to accept this drastic change as a mystery to be received in faith; others felt the need of rationalising the seeming miracle, and so attributed this scintilla juris to the feoffee.2 For three hundred years the controversy lasted; Coke against Bacon, Booth against Fearne, Sanders against Sugden, the House of Commons (it seems) against the House of Lords. Not until 1860 was the scintilla at last extinguished after a stubborn legislative struggle.3
It was, however, the prevailing theory, and so for practical purposes the position of the feoffees was material to the question whether any particular contingent use was or was not good. A most important result was the rule that “if the estate of the feoffees, which is the root of the uses, be destroyed by the alienation of the land before the uses have their being, no use can afterwards rise”;4 but, conversely, there were circumstances in which the feoffees could enter in order to preserve contingent uses from destruction by those who had vested estates.5
A further question was whether the derivation of estates by way of use should or should not be bound by common law rules. Before the statute, uses were the most flexible means of effecting settlements, and hardly any restrictions were imposed in Chancery. Thus, even a shifting fee was possible by means of a use. The statute gives no hint of any dissatisfaction with this state of affairs, and so we may conclude that the framers of it were ready to tolerate this liberty in limiting uses, however shocking the results might be to common lawyers. The courts were not so sure, however, and sometimes went so far as to suggest that no limitations by way of use were valid unless they would have been valid in a deed at common law. This would have prevented springing and shifting uses and most types of “contingency”, and is hardly distinguishable from the proposition that the statute abolished uses.6 This extreme doctrine was slowly abandoned, but only in part. A most important relic of it is the rule which became firmly settled that if an executory use (or devise) could be construed as a contingent remainder, then it must be so construed.1 Fear of “perpetuities” probably made for the acceptance of this doctrine, which, of course, resulted in making many types of contingent use as destructible as contingent remainders.
The Statute of Wills allowed land to be devised, and the devise operated under the statute as a new means of conveying land. This therefore constitutes the third body of property law at the disposal of the common law courts. At the same time, some testators, remembering pre-statute days, preferred the old method of the use, and so we find devises of land to persons who were to hold to various uses; the devisees therefore took under the Statute of Wills, and the beneficiaries took under the Statute of Uses.2 At first there was a feeling among some judges that devises, as well as uses, ought to be subjected to the common law of estates; this movement proceeded no further with devises than it did with uses, and so was checked as soon as it was established that executory devises, like executory uses, which were capable of being construed as contingent remainders, must be so construed.3 This left a remarkable class of executory devises which did not fall under the rule, but they, too, were somewhat precarious until the last years of Elizabeth, when opinion began to change as a result of recent developments both in common law and Chancery.
These novelties were concerned with terms of years. As we have seen, the term of years was always viewed with some suspicion, particularly when it was employed merely as a conveyancing device. It was old doctrine that uses could not be declared on a term—there had to be feoffees seised of a fee. If uses were declared upon a term, they were certainly not executed by the statute, and for a long time they received little sympathy from the Chancellor, on the ground that they constituted a device to evade feudal incidents. It was equally certain in the sixteenth century that a remainder could not be created in a term by deed. Whether it could be so created by devise, however, was a question on which opinion fluctuated. In 1536 it was held that if a term was devised to A. in tail, remainder to B., the remainder was bad.4 In 1542 the view was that such a remainder after a life interest only, was good5 but destructible by the first taker; and to the end of the century cases sometimes assert and at other times repudiate these principles.1 The question was not settled until Manning’s Case2 and Lampet’s Case3 decided that an executory devise in a term after a life interest was not only good, but indestructible, “and although these decisions have been grumbled at, they have never been overruled”.4 The common law attitude was the old dogma that a term of years, however long, was of less consideration than an estate for life, but Lord Nottingham many years later claimed that Chancery had helped the common lawyers to reach “the true reason of the thing” instead of “the vulgar reason of the books” by allowing the remainderman to compel the devisee for life to give security in Chancery not to destroy the remainder, and that the change of view of the law courts was largely due to their desire not to send litigants to Chancery.5
By the end of the sixteenth century, therefore, executory devises of terms in remainder after a life interest were in substance indestructible as Chancery would take measures to preserve them: shortly afterwards, the common law itself adopted this changed view in Manning’s Case. Why then should destructibility continue to attach to executory devises of freeholds? The logic of the situation was certainly felt, and the common law courts began to retreat cautiously from their extreme position. Already in 1600 (even before Manning’s Case) they held in a case of an executory devise of a freehold in the form “to A. in fee, but if A. fails to pay certain annuities, then to B.,” that the executory devise to B. was indestructible if it was to an ascertained person.6 This decision helped a great deal in the frequent cases where the enjoyment of land was made conditional on paying annuities to junior members of the family. Twenty years later a slightly different type of conditional limitation was sanctioned. In Pells v. Brown7 a fee was devised to A. and his heirs, but if A. died without issue in the lifetime of B., then to B. It was held that B. is not barred by a recovery suffered by A. As an eminent writer has said, it is difficult to over-estimate the influence of this decision on the subsequent history of conveyancing.8
THE RULE AGAINST PERPETUITIES
By this time, therefore, executory interests in freeholds or in terms were indestructible unless they could be construed as contingent remainders, or were limited after an entailed interest.1 This result represented a considerable change from the doctrine prevalent in the early days of Elizabeth, and it has been very plausibly suggested that competition from Chancery had much to do with the change: Pells v. Brown certainly came at a moment—1620—when the common law had most to fear from the rival system. But Chancery and the common law courts were in consequence both faced by the problem of perpetuities, and so combined their forces in devising a solution, for it must be remembered that chancellors frequently consulted the common law judges in difficult cases.
The word perpetuity was for a long time vaguely used: it first becomes precise when it is used to designate attempts to produce an unbarrable entail, of which Rickhill’s settlement is an early example.2 A bill against “perpetuities” which passed its first reading in the Lords on 19 January, 1598, was directed against uses arising in one person when another person attempts to alienate.3 The term was then extended to analogous situations where the employment of contingent remainders, springing and shifting uses, and executory devises resulted in making the fee inalienable for a considerable length of time. An early instance of the word is in Chudleigh’s Case,4 but the problem itself may be regarded in one sense as very much older, and indeed as being a continuation of the history of freedom of alienation which we have treated in earlier pages. Old rules thus came to be justified on newer grounds. Thus the rule in Shelley’s Case was devised in mediaeval times for a feudal purpose,5 but its continuance was assured because it rendered the creation of perpetuities more difficult. The rule in Purefoy v. Rogers,6 whatever its technical justification, likewise owed its survival to similar considerations.
The first attempts to prevent perpetuities took the form of the complicated rules which we have briefly described. It was hoped that rules limiting the creation and derivation of interests, coupled with rules permitting their destruction, would make undesirable settlements impossible. They probably did; but at the cost of upsetting many others which were perfectly harmless and even convenient. The ponderous machinery was, therefore, reversed and soon gathered alarming speed in the opposite direction. An acute dilemma presented itself between the two dangers of permitting perpetuities and upsetting reasonable arrangements, and slowly it was being realised that the sort of rules then being developed would inevitably cut both ways. The first gleam of light appears in an argument by Davenport (later C.B.) when Child v. Baylie1 came into the Exchequer chamber. He argued that since in this case the contingency must be determined in the lifetime of a living person, then there could be no fear of a perpetuity. The argument was unsuccessful, but slowly attention began to fasten on the life in being, helped at first by the settlement of the rule that an executory devise of a term after an entailed interest was bad, although it would be good after a life interest.2
A line of hesitating decisions culminated in the Duke of Norfolk’s Case3 in which Lord Nottingham laid the foundations of the rule against perpetuities, not so much by defining its content, as by settling the lines upon which it was subsequently to develop. In that case, the Earl of Arundel had conveyed a long term in trust for B., his second son in tail male; but if his eldest son, A., should die without male issue in B.’s lifetime, or if the title should descend to B., then in trust for the third son, C. In fact, A. died without issue during B.’s lifetime, and the validity of the executory trust for C. was the principal point of the case.4 Lord Nottingham, the Chancellor, called into consultation Pemberton, C.J., K.B., North, C.J., C.P., and Montagu, C.B. All three heads of the common law courts advised against the settlement, but Nottingham was not bound to accept their view, and decreed in its favour. On Nottingham’s death, his old friend North succeeded him on the woolsack,5 and in view of his dissent, it is not surprising that a bill of review was brought before him whereupon he reversed Nottingham’s decree. A further appeal to the House of Lords resulted in another reversal and the restoration of Nottingham’s decree (1685). In the course of his decision, Nottingham went fully into the history of the subject, and poured scorn on the mass of artificialities with which the common lawyers had encumbered it. The suggestion that the settlement could be better effected by means of a trust on a new term to C. instead of a new trust on the original term drew from him the famous words:6
“Pray let us so resolve cases here, that they may stand with the reason of mankind when they are debated abroad. Shall that be reason here that is not reason in any part of the world besides? I would fain know the difference why I may not raise a new springing trust upon the same term, as well as a new springing term upon the same trust; that is such a chicanery of law as will be laughed at all over the Christian world.”
Such language must have been profoundly shocking to the common lawyers, and the House of Lords no doubt relished the opportunity of restoring Nottingham’s decree. The basis of his decision was that since the trust to C. must arise, if at all, within the lifetime of a person then in being it could in no wise be properly called a perpetuity. It was true that B. had a fee-tail, but it was likewise true that his interest was determinable on one or the other of two events which could only happen in his lifetime. For two centuries the rule has continued to develop on that broad and reasonable basis, although Nottingham himself refused to be enticed into the discussion of hypothetical difficulties; to the question where would he stop in such cases he retorted:1
“I will tell you where I will stop: I will stop where-ever any visible inconvenience doth appear; for the just bounds of a fee simple upon a fee simple are not yet determined, but the first inconvenience that ariseth upon it will regulate it.”
Inconveniences have arisen, and the growing rule received its due measure of complexities and difficulties, but it is thanks to Lord Nottingham’s courage and perception that the rule has as its basis a reasonable and simple proposition, instead of the artificial complications which the common law courts had been devising in order to meet the problem.
Such is the history, in brief outline, of the three systems of real property law controlled by the common law courts in the sixteenth and seventeenth centuries—the common law itself, uses executed under the Statute of Uses, and devises of freeholds and of terms under the Statute of Wills. Obviously they were faced with a bewildering situation, but it is difficult to show that they did anything to clarify it. All three systems raised the problem of perpetuities, but the common lawyers seemed to lack the courage, if not the penetration, to state a general solution. The rule was first adumbrated in Chancery, and to Chancery we must now turn for the fourth system of real property law in force during our period—the trust.
THE RISE OF THE TRUST
The Statute of Uses deals with the situation where A. is seised to the “use, confidence or trust” of B. It is clear that the statute operates wherever that situation exists, irrespective of the terms in which it is expressed, neither use, confidence nor trust being technical terms. Indeed, even a use implied in law (as on a bargain and sale) is equally within the statute, although none of these words is employed, and indeed no words at all. Nevertheless, a convention soon arose of confining the word “use” to those relationships which fell within the statute, and of describing those outside of it as “trusts”. The word “trust” had a more general meaning, however, and this vaguer sense has had great influence in the establishment of the modern trust; this broader sense seems to apply to any case where one person was under a moral duty to deal with property for another’s benefit. We have already mentioned the fact that feoffees to uses could re-enter in order to preserve certain executory uses. In Brent’s Case1 Dyer and Manwood state this fact, and give as the reason that the feoffees “were the persons put in trust by the feoffor”. The uses involved in that case were, of course, executed by the statute, but there still remained a “trust”—a duty to take certain steps in order to further the intentions of the settlor.
The origin of the modern passive trust seems to lie in the regular enforcement by Chancery of a duty to convey arising in a few situations of common occurrence; as time goes on it becomes evident that the duty will be enforced with such mechanical regularity that there is no need to pursue the remedy, and the person entitled came to be treated as though he had already received a conveyance. It was in fact a repetition of a process which had already taken place much earlier in the history of the use. It is well known that a purchaser of land who had paid the price could compel the vendor to convey by a suit in Chancery. This rule became so well established that it could be expressed in the now familiar form that a vendor who has been paid, but who remains in seisin of the land, is seised to the use of the purchaser. The purchaser’s right to be put into seisin thus became a “use”—something very like a property right—and after the statute, became a true legal title. The same process was repeated in the history of the trust. There were circumstances, often involving fraud or mistake, in which Chancery would compel a conveyance to the party who in conscience was entitled; this right to have a conveyance, we suspect, gradually acquired the character of a trust.
THE USE UPON A USE
Unfortunately there is very little material available in print from which to construct a history of equity, more especially for the critical reign of Elizabeth. Such scraps as have survived are therefore apt to stand out in undue prominence. This is certainly true of the famous “use upon a use”. The common belief that this was originally, as well as ultimately, a device to evade the Statute of Uses and to create a purely passive trust in spite of the statute, seems unlikely. The origin of the situation, we suspect, was a misunderstanding of the effect of the Statute of Uses upon a bargain and sale, which by now had become so common a conveyance that the true mechanism of it was sometimes forgotten by careless attorneys, with the result that even before the statute we find cases, such as arose in 1532, where it was stated2 that land cannot be given to the use of A. where the rent is reserved to B. and that one cannot bargain and sell to A. for valuable consideration moving from A. to the use of B. Both the first and the second of these propositions turn upon the rule (already discussed)3 that uses must be clear, and not conflicting with other uses or with other duties. Thus, uses cannot be declared upon terms or fees tail, for they would be repugnant to the duty owed to the reversioners; and in the second proposition, the use expressed is void, for it is repugnant to the implied use raised by the consideration. Such was the law even before the statute.1 After the statute, some people seem to have thought that the implied use having been executed by the statute, a bargain and sale was henceforth merely a device for transferring legal seisin from vendor to purchaser, and that it was therefore equivalent, for these purposes, to a feoffment. Attempts were therefore made to bargain and sell to A. to the use of B. hoping that the use to B. would be executed by the statute, just as it would have been if there had been a feoffment of A. to the use of B.2
That seems to have been the situation in Tyrrel’s Case.3 Jane Tyrre bargained and sold her lands to George her son and his heirs for ever, in consideration of £400 paid by him to have and to hold to him and his heirs for ever, to the use of Jane for life with divers limitations over. An attempt to support the limitation of uses by reference to the Statute of Enrolments seems to indicate that some people were under the impression that bargains and sales were now equivalent (for these purposes) to a feoffment. The whole bench of the Common Pleas (sitting in the Court of Wards) held that the Statute of Enrolments did nothing to change the nature of a bargain and sale, and that the uses limited were void. The reason for their invalidity is clearly stated to be the same as that expressed in the case before the statute—the bargain for money implies one use, and the limitation of a further is “merely contrary”. Several cases contain the same decision.
This was the view not only of the common law courts, but of Chancery as well; A. bargained and sold to B. to the use of A.—Chancery just as firmly declined to help A.4 Again, A. enfeoffed his sons to the use of himself for life, and after to the use of the sons and their heirs for the performance of his last will. Here also the uses to the last will are repugnant to the use in fee to the sons.5 These decisions were no doubt harsh, defeating the manifest intentions of the parties, who had to suffer for the unskilfulness of their advisers. Those old rules about repugnant uses were clearly working mischief when applied to deeds drawn by unlearned attorneys. Could the old rules be abandoned in view of this tendency to mistake them? Clearly we need not ask such a question of the common lawyers. Even Chancery was stubborn, until in the last years of Elizabeth and during the reign of James I, the idea of enforcing trusts of various sorts began to expand. Here there seemed a way out of the difficulty. Not that the Chancery was tempted to restore the passive use—there was no thought of that, but at least it might be possible to compel the parties to carry out the intention of the settlors, which had only failed through imperfect draftsmanship. Particularly, favour was now being shown to charitable trusts and trusts to convey. The former were favoured no doubt on grounds of public policy; the latter could be regarded as active trusts and so not within the Statute of Uses. To give effect to them the trustee had actually to convey and Chancery would compel him to do so. In Sir Moyle Finch’s Case1 it is implied that a bargain and sale of lands by A. to B. on trust for the payment of A.’s debts might be enforceable in equity. A trust for the payment of debts was regarded as a charitable trust, and although technically a bargain and sale was not the correct form of conveyance in such a case, yet Chancery seemed ready to overlook the use upon a use, and to compel the bargainee to carry out the trust.
SAMBACH v. DALSTON
Chancery was therefore prepared to tolerate a charitable trust limited upon a use in spite of the technical repugnancy. A generation later Sambach v. Dalston2 seems to have revived the old difficulty of a bargain and sale by A. to B. to the use of C. Tyrrel’s Case had held that since B. had a use, the further use to C. was void. By 1634 the influence of Chancery’s care for charitable trusts and trusts to convey is now evident. It is felt to be unconscionable for B. to retain land which he well knows was meant for C. and it was doubtless on these grounds that Chancery decreed that B. must convey to C. The decision was not an attempt to settle the nature of C.’s interest, and it said nothing of trusts; its sole concern was to order B. to convey to C. who, he knew perfectly well, was the intended beneficiary.
It must not be imagined that this case created the modern trust. Active trusts have a continuous history from modern times back to the middle ages, for they were not affected by the Statute of Uses. The passive trust, on the other hand, makes no appearance in Sambach v. Dalston, nor for some years afterwards. That case merely decided that a bargain and sale by A. to B. to the use of C. should no longer have the curious effect of giving all to B. and nothing to C.; in other words, that B., having the legal title of land which ought to be C.’s, can be compelled to convey it to C. This is a long way from the trust of modern times in which B. retains legal ownership and C. has equitable ownership. Although this case did not create the modern passive trust, however, it did provide a curious, but convenient, way of creating it when later on passive trusts were recognised. The practice of deliberately limiting a use upon a use in order to create a trust seems to have been established early in the eighteenth century; it is referred to as something of a novelty as late as 1715.1
The line of development from Tyrrel’s Case to Sambach v. Dalston is, therefore, only a minor factor in the history of the trust. More significant elements in that history seem to be the development of Chancery’s policy to compel conveyance by legal owners who were put under an express trust to convey (such as the trust which appears in Sir Moyle Finch’s Case and was voluntarily carried out by the trustees making a conveyance), and secondly, by compelling legal owners to convey to those who in conscience were better entitled. It has often been remarked that the right in equity to receive a conveyance only needs a slight change of emphasis to become equitable ownership, thus growing imperceptibly into a passive trust.
Trusts of personal chattels were undoubtedly recognised in Chancery as they had been for a century and more. Terms of years presented a difficult problem. Chancery finally took steps to preserve executory interests in terms, at least in those normal cases where a testator was making limitations in a term which was already in existence; the creation of terms merely as a conveyancing device was a different matter, and for some time Chancery refused to give any assistance, especially where they concerned lands held in chief of the Crown. With the abolition of knight-service in 1660 this objection was removed, and so Chancery was free to consider terms as capable of supporting trusts, as well as of being limited in remainder.
EARLY FORMS OF GAGE
The development of the mortgage is an interesting example of the interplay between legal doctrine and conveyancing custom. The gage, which is the root idea of the transaction, is really a relic of the days when credit was not yet in existence.1 It has been conjectured that in its oldest form the gage (in Latin vadium, and in modern English pledge2 ) was payment, subject only to the option of the purchaser to substitute at a later time payment in a different kind. Under this arrangement the handing over of the gage settled the debt; the creditor could not demand the substitution of a different kind of payment, and the debtor had no way of recovering any excess value in the gage over the price which he could substitute later. According to this hypothesis, the primitive gage was capable of development in two directions: first, the gage may become a slight object whose transfer is treated as a binding form in a contract for future payment; or, the transaction may take its modern aspect of security only for the future payment of the principal debt. Procedure, judicial and extra-judicial, probably assisted this transformation. The royal courts soon make a practice of taking gages of litigants and security for their obedience, and the long history of the law of distress is really concerned with the compulsory taking of gages.3
Here we are particularly concerned with the gage of land, which appears in England as early as Domesday Book. A century later Glanvill describes it,4 first of all stating that if the king’s court is to take notice of a gage it is essential that the gagee be in possession; otherwise, he says, the same land might be engaged to successive creditors, creating a situation much too complicated for royal justice to unravel.1 The gagee may hold in several different ways. For example, the land may be given for a term of years with a covenant that at the end of the term the debt must be paid; on default the gagee will be entitled to hold the property henceforth as his own. Or, on the other hand, the gift may be for a term of years without containing a covenant releasing the title to the creditor on default; in such a case it will apparently be necessary to obtain the judgment of the court before the creditor’s title becomes complete. Another possibility was a charter accompanied by an indenture which imposed conditions upon its effectiveness.2 As we have seen, the gagee is always in possession and receiving the profits of the land. If those profits are applied to the reduction of the debt, Glanvill tells us the transaction is just and lawful; if, however, the profits do not reduce the debt but are taken by the gagee, then the proceeding is usurious, dishonest and sinful, and is therefore called mortuum vadium, a mortgage.3 The mortgage is, nevertheless, legal as far as the king’s court is concerned, but if the mortgagee dies, his property will be forfeit, like that of other usurers.
This type of gage as described by Glanvill finally fell into disuse. Its obvious disadvantages were that the debtor was always out of possession; that although the gagee was in possession yet he was not protected by the petty assizes, and so if he were ejected he had no means of recovering his security; and worse still, the debtor himself might eject the gagee and thereby reduce him to the position of an unsecured creditor.4
THE GAGE IN BRACTON’S DAY
When we come to Bracton we see attempts to fit the gage into the scheme of estates. Gages may therefore be effected by selling a term of years for a sum down; the advantage of this is that there is no debt at all, and, therefore, no usury, and no gage, while the termor is now protected against the lessor.5 An alternative arrangement was a true gage for a term of years with the condition that if the debt is not paid at the end the lessee shall hold over in fee. This shifting fee for a time raised no technical difficulties.6 It is obvious that several forms were used, and sometimes in combination. Thus the Year Book of 1314 tells of a lease for five years “by way of mortgage” whereof indentures were made, but accompanied by a deed of feoffment in fee simple with warranty in common form. Bereford, C.J., compelled the tenant (who relied on the feoffment) to answer to the indenture.1 The very next case was one of a mortgage by feoffment, with a covenant in a separate deed for the defeasance of the feoffment and the “reversion” of the land.2 One early case even allowed a charter of feoffment to be governed by a parol condition.3
Britton makes the significant remark that there is no equity of redemption although some people think there ought to be.4 Furthermore, a common law judge in 1314 used these remarkable words: “When a man pledges tenements his intention is not to grant an estate of inheritance, but to secure the payment of the money which he borrowed promptly, and to get back the tenements when he had paid the money.”5 If the common law had kept to this doctrine it would have anticipated by several centuries the achievements of Chancery; very soon, however, the common law courts lost the equitable spirit which distinguished them in the reign of Edward II, and construed the terms of a mortgage strictly according to the letter.
While the Jews were in England matters were in a much more satisfactory state. They had their own law and customs and the Crown maintained a special court (a division of the Exchequer) for their enforcement. Among these customs was the possibility of a gage in which the gagee was not bound to take possession; gages to Jews were, however, subject to a system of registration established by Richard I.
“Very early in the thirteenth century we may see an abbot searching the register, or rather the chest, of Jewish mortgages at York in quite modern fashion. A little later an abbot of the same house, when buying land, has to buy up many encumbrances that had been given to Jews, but has difficulty in doing so because some of them have been transferred. The debts due to Israelites were by the King’s licence freely bought and sold when as yet there was no other traffic in obligations. We may guess that, if the Jews had not been expelled from England, the clumsy mortgage by way of conditional conveyance would have given way before a simpler method of securing debts, and would not still be encumbering our modern law.”1
From the fourteenth century onwards we therefore find the common law courts construing mortgages strictly—so strictly, that for practical purposes other and more convenient devices had to be invented under statutory authority, such as the elegit and obligations under the statutes of merchants and staples.2 The great advantage of these forms was that they were statutory, enacted with a careful explanation of their real nature as securities, and with an express repeal of such common law principles as would have impeded their operation. The old common law mortgages, on the other hand, suffered from the incurable defect that they employed formulas which contradicted the true nature of the operation—they spoke of feoffments in fee, and leases for years, when the transaction was really neither—and such forms inevitably attracted several doctrines of seisin and the derivation of estates, which tended to defeat their purpose.
LITTLETON ON MORTGAGES
The fifteenth-century type of mortgage is described by Littleton, who incidentally gives a novel reason for the word:
“If a feoffment be made upon such a condition that if the feoffor pay to the feoffee at a certain day forty pounds of money, that then the feoffor may re-enter; then the feoffee is called tenant in mortgage, which is as much as to say in French mort gage and in Latin mortuum vadium. And it seemeth that the reason why it is called mortgage is that it is doubtful whether the feoffor will pay at the day limited such sum; and if he doth not pay, then the land which is put in pledge upon condition for the payment of the money is taken from him for ever, and so dead to him on condition. And if he doth pay the money, then the pledge is dead as to the tenant.”3
He goes on to state that the feoffee may take for years, for life or in tail, instead of in fee; that if no date is limited, that then the redemption can only be made by the feoffor, and that his heir cannot redeem; if a date is fixed, however, and the feoffor die before it, then his heir can redeem on the day. He states in rather less confident tones his view that if the feoffee die within the term, tender should be made to his executors although his heir will have the land; if the feoffor die, his executors should render.4
The general scheme is therefore a feoffment in fee, with a provision for re-entry upon a condition subsequent. Such an arrangement in the early fourteenth century was certainly invalid;1 attempts to express the situation in terms of reversions or remainders after a fee simple, or in defeasance of a fee simple, were no more satisfactory,2 and so Littleton had no alternative but to classify it as an “estate upon condition”. The courts certainly had a long-standing distrust of such devices. Littleton assumes that in his day the forms he gives were valid, but the scanty annotations suggest that there was little authority for his statement, and it may be conjectured that the common law mortgage was not much used; it is clear, on the other hand, that the statutory forms of security were popular, and very widely employed.
THE CLASSICAL COMMON LAW MORTGAGE
There is great obscurity over the history of mortgages in the fifteenth and sixteenth centuries. At what date it became usual to effect them by the newer device of a feoffment with a covenant for re-conveyance (instead of a condition of defeasance or of re-entry) it seems impossible to say.3 The law of conditions, defeasance and entry was certainly growing steadily more unsatisfactory, and this may account for the preference for a covenant to re-convey which would be actionable by a writ of covenant. Perhaps the greatest factor of the change was the growing strength of equity, which concurrently with common law would compel re-conveyance on payment (which many creditors were loth to do), and was already drawing the whole transaction, and not merely certain aspects of it, within its jurisdiction. The covenant, however, would be enforced by the common law courts strictly as it stood. In this respect it closely resembled the widely used bond for £10 defeasible on payment of £5 on a certain date. In both cases it was the mission of Chancery to give relief against penalties which were enforceable at law.4 In the present state of knowledge, it seems that the classical form of mortgage was actually established subsequent to equity’s entry into the field, and with a definite recognition that mortgages were to come before Chancery rather than the common law courts.5
A further obscure point is the slow change in practice by which the mortgagor was allowed to remain in possession. This is certainly postmediaeval, and, indeed, as late as the middle of the seventeenth century it seems that mortgagors generally gave up possession to the mortgagee.1 It is significant that some curious forms of mortgage, devised by the eminent conveyancer, Sir Orlando Bridgman, were effected by giving the mortgagee a long term of years (to which conditions and provisos were more easily attached than to fees), and that among the provisos was a clause permitting the mortgagor to retain possession.2
In the sixteenth century Chancery began to give relief against penalties and it may be that it was partly on this basis that Chancery also intervened in mortgage transactions at the close of the sixteenth century, and developed its doctrine of the equity of redemption. Another factor, possibly of equal importance, may well have been Chancery’s insistence that man, who ought in conscience to convey land to another, could be compelled to do so. This principle, applied to one type of situation, made possible the development of the later trust;3 applied to the mortgage, it made possible the equity of redemption. It is, however, from the close of the seventeenth century, when Sir Orlando Bridgman was Lord Keeper, and after him Lord Nottingham, that equity began to elaborate a considerable body of law,4 some of which modified the common law mortgage, while the rest applied to types of mortgages which were peculiar to equity, such as second and subsequent mortgages, and the remarkable equitable mortgage effected by merely depositing title deeds—which was clearly contrary to the words and the policy of the Statute of Frauds.5 Conveyancers themselves made the valuable addition (which the legislature subsequently developed) of the power of sale which has made the modern mortgage so effective an instrument, originally prompted, it seems, by a desire to avoid the slow and costly foreclosure proceedings in Chancery.
STATUTES MERCHANT, STATUTES STAPLE, ELEGIT
The fact that the mortgage was not a very satisfactory institution is shown by the continued use of the mediaeval statutes merchant and staple. There was much legislation6 and both merchants and landowners made much use of them. By means of a “statute” a debtor could voluntarily make his land a security for debt. If judgment was given against him, the judgment creditor could reach his land by the writ of elegit. A creditor in possession by either method had a “freehold” and (by statute) was protected by the assize of novel disseisin. Thus a great breach was made in the ancient principle that the sacred freehold was not liable to creditors—but at the expense of much complication in the law of land.
The Anglo-Saxon form of conveyance was at first extremely elaborate and was imitated from continental models.1 Whether, like them, it acted as a conveyance, that is to say, transferred the complete title without the requirement of any further ceremonies, it is very difficult to say.2 Of the transfer of folkland it is even less possible to speak with confidence, since in the ordinary course of events it seems to have been effected without charter or written document. Such traces as we have seem to indicate a ceremonial transfer accompanied by great publicity, sometimes in the county court and more frequently in the hundred court. At the same time we find the appearance of festermen, whose function is particularly obscure.3 If we may venture a guess, it would be that they partly represent the borh or surety whose presence so frequently rendered an Anglo-Saxon contract a three-cornered affair.
Towards the end of the Anglo-Saxon period the elaborate charter is replaced by a simpler form which modern historians call a “writ-charter”. This is derived from the administrative writ and was originally merely a letter of instructions sent by the king to some official. This brief and convenient form was soon used for all sorts of purposes. From this single ancestor are derived the charter and letters patent which are the form of a good many grants of property and privileges, including the Great Charter; so, also, the letters close which were the great administrative instrument in the middle ages; likewise the original writs on which the forms of action were based; and so, too, the conventional forms of conveyance used by private persons.
When we come to the Anglo-Norman age we find that already the law had made a great decision. It is clearly recognised that a deed does not operate as a conveyance, but is simply evidence. With the decline of the Anglo-Saxon charter, according to one view,1 we therefore reach the end of a brief period during which a document was capable of transferring rights, and a return to the more ancient native practice which insisted upon an actual delivery of chattels or livery of seisin of land. We have already remarked, however, that the existence of this momentary aberration has not yet been clearly established.2 In any case, the importance of the deed is much reduced, and in the Anglo-Norman age there can be no doubt that a great deal of land was transferred without deed. The essence of the transaction was a complete and public change of the occupancy of the land in question; even the symbolic transfers of the previous age are no longer effective (if, indeed, they ever were); instead, we find the purchaser entering upon the land and expelling from it the previous owner and his family, his servants, beasts and chattels, all of which is done in the most public way. The deed is at first a sort of memorandum in the form of a writ-charter recounting the transaction in the past tense. The document usually begins in the name of the vendor in such words as these, in the thirteenth and later centuries:
“Know all men present and to come, that I, A. B., have given and granted and by my present charter confirmed to C. D., his heirs and assigns forever, all that land of mine . . .”
—and here the boundaries are set out with some particularity. Then comes the following clause:
“To have and to hold to C. D., his heirs and assigns, of me and my heirs rendering therefor annually. . . .”
At this point (called the habendum) the nature of the donee’s interest is stated, and if the gift is in fee-tail the limitations will be specified. In deeds executed after the Statute Quia Emptores the tenendum will have to be in the form “to hold to C. D., his heirs and assigns, of the chief lord of the fee by the services rightfully and customarily due”, and if the grantor reserves any rights (such as rent on a lease) a clause beginning reddendo will specify them. We then come to the very important clause of warranty in this form:
“And I, my heirs and assigns will warrant the said land to C. D. and his heirs and assigns against all men forever. . . .”
This warranty clause1 was a great protection to the purchaser, for if his title was subsequently attacked he could call upon his warrantor to come into court and defend it, and, if he lost, the warrantor was bound to recompense him with land of equal value in the same county; at the same time the warranty acted as a bar to any claim by the donor and those whom he bound. As we have already said, at the beginning of the thirteenth century the clause of warranty served to bar the claims of heirs who might otherwise try to recall their ancestor’s gift.2 The clause of warranty was followed by a clause announcing that the deed was sealed, in forms that varied considerably; it is not infrequent to find even something like this:
“And in order that this gift, grant and confirmation may remain forever good and valid, I have appended to this present writing my seal (or the seal of E. F. because I have not one of my own). In the presence of these witnesses . . .”3
In the fourteenth century the charter frequently omits to mention the seal, although it remained the law that no deed was valid without a seal. Before the reign of Edward I it is unusual to find the deed dated, but from the fourteenth century onwards the sealing and witness clauses are replaced by a dating clause announcing the time and place. In the fifteenth century livery of seisin degenerates into a ceremony, and frequently the vendor and purchaser made attorneys to give and receive livery of seisin; a memorandum of the due performance of this was endorsed upon the deed. We do not commonly find signatures on deeds before the sixteenth century, and they did not become generally necessary until the Statute of Frauds. Sometimes as a greater security the deed was written in duplicate (particularly if it were a lease containing elaborate covenants) upon the same piece of parchment, and the two deeds were then separated by an indented cut passing through the word chyrographum. Such a deed was called an indenture or a “writing indented”, although it is only later that we find the appearance of the modern form beginning, “This indenture made at such a date witnesses that . . .” At first the form of an indenture was merely a precaution,4 but soon this precaution was felt to be so valuable that the indenture acquired a special position in law by creating an estoppel, and as being equally the deed of all the parties.
VARIETIES OF DEEDS
This general framework could be used for a variety of transactions besides the gift or grant. Thus a release could be used where the donee was already in possession, and the owner released his rights; under such circumstances livery of seisin was unnecessary. The release was commonly used when a lessor released the fee to his lessee, or a disseisee conveyed his rights to the disseisor. The converse of a release is the surrender whereby a tenant for life or years surrenders his interest to the reversioner. The charter must be carefully distinguished from the feoffment; the former is a document, the latter a ceremony which alone gives validity to the transaction, for it includes the formal livery of seisin. Gradually a distinction is drawn between the feoffment of land where livery of seisin was obviously possible, and in fact, sufficient without a charter (until the Statute of Frauds), and the grant of reversions, advowsons, rents and other incorporeal things which (in later theory) only “lie in grant and not in livery”. As soon as it is established that livery cannot be made of such things, then a deed will be necessary to pass them.
A second type of deed used the machinery of the law courts. We have already mentioned that in Anglo-Saxon times transfers of lands were frequently made in court, and in the early Norman period we find numerous attempts to obtain some sort of official record of a transaction. In consideration of a fee a private deed might be enrolled upon the pipe rolls, while soon after it became a frequent practice to enrol private deeds on the back of the close roll. This practice had a curious history, for in the course of time the official documents upon the close rolls gradually became fewer while the private deeds enrolled upon the back became more numerous, with the result that the modern close rolls (they extend in unbroken series from 1204 to 1903) consist entirely of deeds enrolled and contain no official business whatever.
FINAL CONCORDS: RECOVERIES
Another attempt in the same direction took the form of litigation which was brought into court solely for the purpose of being compromised upon terms which the court approved and recorded.1 This became so frequent2 that a new procedure was set up on the fifteenth of July, 1195, and this was observed until 1833. The immediate cause seems to have been a complaint by Jews that their bonds were abstracted from the chests in which the royal officials ought to have kept them. To remedy this the tripartite indenture was devised, one part only being put in the chest, the others being held by the parties. That was in 1194; the system apparently worked so well that it was adopted for the preservation of final concords in the next year.
The compromise was called a fine or final concord, and the essential parts of it are the praecipe or original writ commencing the action, the licence to compromise, the note or memorandum of the terms,1 and the final document in which those terms were solemnly set forth.2 This document was in fact a tripartite indenture, three copies being written on the same sheet of parchment, one for each party and one at the bottom for preservation in the royal archives. This was called the foot of the fine. There is an almost unbroken series of these feet of fines in the Record Office constituting an extraordinary mine of information for local history and for the history of real property law. As times goes on, the procedure by fine becomes complicated and a number of different sorts of fines are invented, each with its peculiar properties. The effect of a fine was much more powerful than that of a deed. To begin with, its authenticity is usually beyond dispute. It is very rare indeed that parties succeeded in corrupting government clerks to tamper with a foot of the fine, and even then discovery was inevitable.3
In the middle ages it was commonly used to convey reversions and remainders, because there was a rapid process (by writs of per quae servicia and quid juris clamat) for compelling particular tenants to state what interest they claimed or to attorn, and as a means for a married woman to convey her land so absolutely as to bar actions of cui in vita and sur sui in vita; for this purpose she was brought into court and examined by the judges in order to be sure that she freely consented to the conveyance.4 Land could also be conveyed free of dower by fine if the wife joined with her husband in levying it. An additional advantage was that litigation to enforce the fine later on could be conducted expeditiously by a writ of scire facias instead of a costly and expensive real action.5 The fine is therefore the highest and the most solemn form of conveyance known in the middle ages. In its early days, after a short period of limitation a fine operated as a bar to all the world. The period was at first twelve months, and the only exceptions were in favour of minors, lunatics, prisoners and people beyond the seas. A fine, like other judicial proceedings, could be set aside by a writ of error and, in general, was not effective unless the conusee took seisin under it1 —herein resembling the charter, which was useless unless the grantee was given livery of seisin. The statutory changes which were made were chiefly important as affecting the efficacy of the fine as a disentailing device, and of this we shall speak later.2
Collusive recoveries were also used in a variety of forms during the middle ages, but in almost every case they seem to be tainted with fraud. It can hardly be said that a recovery becomes a common assurance and a strictly legitimate proceeding until the sixteenth century. In the middle ages it was used to convey land free of a term, to bar dower, by a husband to alienate his wife’s land and to defeat her heirs, and to alienate into mortmain. A stream of legislation checks first one and then another of these practices.
All the forms which we have so far considered were typically mediaeval in the sense that they were not operative in themselves, but depended upon an actual change of seisin. A charter was accompanied by livery of seisin effected by the parties themselves or their attorneys; fines and recoveries were both incomplete until seisin had been given to the conusee or the recoveror by the sheriff under a writ from the court.
BARGAIN AND SALE
In the fifteenth century Chancery held that a vendor of land who had received the purchase price, but who remained in seisin of the land, was seised thenceforward to the use of the purchaser. Already, it would seem, sixteenth-century purchasers had such confidence in this rule that they were content with this equitable title, especially since it was a secret one. The Statue of Uses, however, executed this implied use and made it a legal estate, and the Statute of Enrolments was immediately passed to prevent legal estates being conveyed with the same secrecy. The act only applied to bargains and sales for an estate of freehold or inheritance, but upon them it imposed the condition that the bargain must be “in writing indented,1 sealed, and enrolled” within six months. The statute contains words which seem to imply that no use shall arise on the bargain if it is not enrolled. The object apparently was to prevent Chancery finding equitable estates arising from bargains which did not comply with the act. If so, the act was successful; but the words had also the effect of obscuring the nature of a bargain and sale, for some people were led to believe that the act had somehow abolished the implied use altogether, and so were tempted to limit further uses on a bargain and sale. As we have seen,2 confusion lasted for a long time, until finally the profession came to the conclusion that a bargain and sale was a dangerous instrument if it was used to effect settlements.3
LEASE AND RELEASE
The Statute of Enrolments did not affect bargains for a term, and so these were left to the combined operation of the Chancery rule and the Statute of Uses; the bargainor is therefore seised to the use of the termor, and the termor acquires the legal term under the statute, without having to enter. Hence it was possible to convey secretly by using two deeds—a bargain and sale for a term, followed by a release of the fee to the termor. Neither had to be enrolled, and neither needed actual entry for its completion. This ingenious device is ascribed to Sir Francis Moore, and was sanctioned4 by the courts in 1621. By the end of the century, in spite of some doubts, it was in general use, for besides its secrecy it had the additional advantage over the bargain and sale enrolled, that uses could be limited in the deed of release.
Since the Statute of Wills these documents must be considered as conveyances, and until a century ago they were treated on strictly conveyancing lines. For example, a will would only pass such lands as the testator was seised of both at the time of making the will and at the time of his death, which perpetuates the situation existing before the Statute of Uses when land was devised by conveying it to feoffees to the uses of the feoffor’s will. The rule is therefore older than the statute of 1540, although certainly consistent with it; Coke delighted to attribute the rule to the words of the act which authorise a testator to devise such land as he “has”.5 Henry VIII’s statutes made no requirements as to the form of a will save that it be in writing, and it was not until the Statute of Frauds that this and a good many other matters were required to be expressed in writing, signed, and in the case of wills witnessed. The Statute of Frauds also required written documents for the creation of trusts of land, and for the assignment of all sorts of trusts, and therefore contributed a great deal towards the treatment of these equitable interests as though they were property. A mass of very unsatisfactory law, mainly the work of the seventeenth and eighteenth centuries, was swept away by the Wills Act, 1837.1
DISENTAILING DEVICES: WARRANTIES
We have already seen2 that when a tenant in fee simple alienated, binding himself and his heirs to warrant the alienee and his heirs, the warranty operated as a bar which peremptorily excluded the donor and his heirs from any claim to the land in question. This principle probably played a part in establishing the alienability of fees simple, free from family restraints.
It now remains to consider the effect of warranties created by those who were not tenants in fee simple. The problem first became acute when doweresses and tenants by the curtesy resorted to tortions feoffments coupled with warranties. When there was issue of the marriage it would normally happen that the issue would be heir to both parents; hence as heir to his father’s warranty he would be barred from claiming lands to which he was entitled as his mother’s heir, and as heir to his mother’s warranty (created while she was doweress) he would be barred from claiming lands which were his paternal inheritance.3 Such practices struck at the root of the common law scheme of family relationships, and in 1278 the legislature intervened. The Statute of Gloucester, c. 3, enacted that an heir, who has inherited nothing from his father, shall not be barred from demanding lands inherited from his mother, although the father had alienated them with warranty. If he has inherited from his father, but not enough (assetz) to fulfil the warranty completely, then he is barred to the extent that “assets” had descended to him. The statute only deals with warranties created by tenants by curtesy.4
What of warranties by a tenant in tail? A simple feoffment (without warranty) by a tenant in tail will give a fee simple to the alienee, but will not bar actions by the heir in tail, remaindermen or reversioners; DeDonis itself provides that even a fine by the donee in tail will not bar his issue or the reversioner. Experiments were therefore made with the deed with warranty and some very curious results followed, for the Statute De Donis made no provision for this case. The simplest case was when a father, being a tenant in tail, alienated with warranty and the warranty descended together with the entail to his heir. This warranty, it would seem, barred the heir from his recovery, and so in this way an entail might be effectively barred as against the heirs in tail: of course it did not affect remainders or reversions. This did not last very long, for the Statute of Gloucester, c. 3 (which, as we have seen, expressly applied only to warranties created by tenants by curtesy) was extended by judicial interpretation to warranties created by tenants in tail, in a case of 1306.1 The result was that if the issue in tail had inherited from his ancestor “assets by descent”2 he was barred to the extent of those assets, otherwise not. Consequently from 1306 onwards it is a growing opinion that a deed with warranty might not be a bar if there were no assets by descent.
By the time of Littleton, an attempt had been made to generalise these rules and to classify warranties. Some were described as lineal warranties because the burden of the warranty and the title both descended by the same line; but this was not always the case, for a warranty might be collateral, and it was held that collateral warranties were always a bar.3 Normally, a warranty was created by one who was seised of the land, and was about to enfeoff an alienee. Soon, however, it was admitted that anyone could bind himself and his heirs to warranty, whether he had any interest in the land or not.4 This afforded opportunities for a good deal of ingenuity. It was not always easy to use collateral warranties, for it needed the co-operation of other members of the family and also depended upon relatives dying in the proper order, conditions which were not always available. When they were, a collateral warranty was a very effective bar to the issue in tail:
“If land be given to a man and the heirs of his body begotten, who taketh a wife and have issue a son between them, and the husband discontinues the tail in fee and dieth, and after the wife releaseth to the discontinuee in fee with warranty, and dieth, and the warranty descends to the son, this is a collateral warranty.”5
Sometimes even remainders could be barred. Thus suppose that the eldest of several sons is a tenant in tail, with successive remainders to his brothers in tail. If the eldest discontinue with warranty and die without issue, then the second son will be heir to the warranty; the remainder, however, is his by purchase and not by inheritance from his elder brother. The warranty is therefore collateral to him, and he is barred.1 Protests were made in Parliament against the collateral warranty rule2 during the reign of Edward III, but it was not until the reign of Queen Anne that the bar by collateral warranty was abolished; curiously enough the statute did not abolish the bar by lineal warranty with assets descended.3 The effect of both of these warranties upon remainders and reversions was very much dependent upon circumstances and in order to bar these estates more effective devices had to be invented.4
DISENTAILING BY FINE
Among these was the fine. By De Donis a fine was no bar to the issue in tail.5 Fines of fees simple, however, were a bar to all the world after a year and a day. In 1361 this old principle was completely reversed by statute,6 and for over a century fines ceased to be a bar to any claimants except the parties themselves. This, however, introduced so much uncertainty and permitted the assertion of so many remote and dormant titles that Richard III by a statute which was re-enacted by Henry VII7 (who usually got the credit for Richard III’s reforms) enacted that a fine should be a bar after certain proclamations and the lapse of five years, while remaindermen and reversioners were to be barred by a fine with proclamations unless they claimed within five years of the time when their estates accrued. Once again the fine becomes “a piece of firm ground in the midst of shifting quicksands”.8 A case, and later a statute,9 made it clear that a fine with proclamations was a complete bar to the issue in tail since they are deemed to be privy to it. A fine, consequently, after the statute will bar the issue, but not remainders or reversions save in the unlikely case where they let their rights go by default.
THE COMMON RECOVERY
The problem of barring remainders and reversions was finally settled by means of the recovery. Of the earlier history of recoveries we have already spoken; in the fifteenth century a number of forms were tried with the evident object of barring entails,1 but it seems always assumed that the recovery could be “falsified” if fraud or collusion were proved.
In Littleton’s day their effect was restricted. Thus if a tenant in tail suffered a recovery (without voucher, and therefore not a “common” recovery), and the recoveror was duly put in seisin by the court, it would nevertheless be possible to destroy its effects, for if the erstwhile tenant in tail disseised the recoveror, died seised, and his issue inherited, then the issue is remitted to the entail.2 It was perfectly clear that a recovery by a tenant for life could have little effect; remaindermen and the reversioner after him could intervene, and even if they did not, they might treat his suffering a recovery as a forfeiture; at the most, failing any entry on their part, it seems that remainders and reversions were only thereby discontinued, and not barred.3
A statute of Henry VIII cleared up this situation by making the recovery absolutely void unless it was made with the consent of the remainderman or reversioner.4 It seems, however, that the statute was evaded by tenants for life alienating to a stranger who then suffered a recovery in which he vouched the tenant for life, “to the great prejudice” of those in remainder or reversion: hence an act of Elizabeth5 avoided all recoveries by a tenant for life, including those where the tenant for life came in as vouchee, unless the consent of the remainderman or reversioner appeared on the record. Clearly, then, the statute preserves the situation (long since established) of a recovery by a tenant for life who vouches the remainderman or the reversioner in fee.
A tenant for life in possession is therefore powerless unless the tenant in tail will join him. So we must now consider the powers of a tenant in tail in possession. If he suffered a collusive recovery (not a “common” recovery) the reversioner could intervene immediately,6 or could recover by action of formedon when his estate fell in. There was therefore little to be done by any mechanism whereby the tenant in tail actually lost the land. Eventually this difficulty was met by a very ingenious device whereby the tenant in tail could part with the land without suffering any technical loss. On being impleaded, he vouched to warranty a stranger, a man of straw, who then defaulted. The recoveror had judgment against the tenant in tail (and so got the land), but the tenant in tail had judgment against the “common vouchee” (who in later times was the crier of the court) for recompense in land to the value of that which had been lost. The success of this device depended on the rule that subsequent remaindermen and the reversioner have still their rights and remedies, but that they are available only against the land which the tenant in tail received as recompense—and as the common vouchee carefully refrained from landownership, there was never any possibility of recompense being actually enforced. The right to it subsisted, however, and so remaindermen and reversioners suffered loss but no injury. And, of course, the device could not have worked unless the courts were determined to close their ears to the obvious charge that the whole proceeding was a barefaced fraud. As we have seen, the courts had long tolerated the creation of collateral warranties by deed by persons who had no interest in the land, and it was but a step further to allow the voucher to warranty of persons who likewise had no real interest in the proceedings, and who had no means of fulfilling the heavy obligations which they undertook.
In its classical form, the common recovery was suffered, not by the tenant in tail, but by a “tenant to the precipe” to whom an estate had been made, either by bargain and sale or by fine, for the express purpose of suffering the recovery. The precipe or original writ issues against this person, who vouches the tenant in tail to warranty: the tenant in tail then vouches the common vouchee, who enters into the warranty and then defaults. The recoveror then has judgment against the tenant, the tenant has judgment to the value against the tenant in tail, and he against the common vouchee. The proceedings were always surrounded with a certain amount of mystery, and the precise reason for their effectiveness was not always clearly apprehended. The author of the Touchstone1 could think of nothing better than that communis error facit jus; one of his annotators convicts Hale of misunderstanding the nature of a recovery;2 another speculator thought that the entail would continue (by a fiction) for ever and ever in the recoveror, his heirs and assigns, and consequently remainders and reversions would never fall in;3 Willes, C.J., thought it best not to inquire.4
If the theory of the recovery is obscure, its history is even more so. Under the common law system, everything ought to have a history, and so a singularly obscure case came to be conventionally regarded as the historical foundation for common recoveries. This was Taltarum’s Case,5 1472. Within the succeeding century there can be no doubt that the common recovery rapidly became a regular part of the law, and of the law of entails—it thus became part of the nature of an entail that it could be barred.
Out of the depths of the eighteenth century, whose tortuous learning on this subject is assembled in Cruise on Fines and Recoveries (1783-1786), comes the prophetic voice of Blackstone.1 Having first given a very lucid exposition of these devices, Blackstone proceeds to call for the abolition of “such awkward shifts, such subtle refinements, and such strange reasoning”. He examines several possible methods. The repeal of De Donis might cause trouble by reviving the conditional fee; it might be enacted that every tenant in tail of full age should be deemed to be tenant in fee simple absolute (but this might seem hard on reversioners); or better still, a tenant in tail might be empowered to bar the entail by a solemn deed enrolled, “which is . . . warranted by the usage of our American colonies”. To have suggested the abolition of fines and recoveries in 1766 was an achievement; to have cited American example for it in the years of the Stamp Act is surely notable, too; nor should Blackstone’s remarks on vested interests be overlooked. Fines and recoveries brought handsome revenues by way of fees to numbers of court officials, and there is no doubt that this circumstance made reform difficult. Blackstone was ready to suggest a higher necessity, at least in a protasis:
“And if, in so national a concern, the emoluments of the officers concerned in passing recoveries are thought to be worthy of attention, those might be provided for in the fees to be paid upon each enrolment.”
In fact, Blackstone lived in the early stages of an historical movement which he discerned and appreciated. He remarks that for a century and a half bankrupt tenants in tail had been empowered to bar their entails by deed enrolled, so that their commissioners in bankruptcy could sell them.2 Moreover, Elizabeth’s statute of charitable uses3 was construed as “supplying all defects of conveyances” so that a tenant in tail could devise, and even settle, entailed land to charitable uses, without fine or recovery.4 Already, then, some cases needed no fine and recovery, but merely a deed. Blackstone’s suggestion was carried out by the Fines and Recoveries Act, 1833, which enabled a tenant in tail who is of full age, with the consent of the tenant for life, to bar the entail by his deed enrolled.
In the common form of settlements, however, a considerable period might elapse before there was a tenant in tail of full age, and during this period the tenant for life could not deal with the land to any great extent. In the middle of the eighteenth century it became a common, though costly, practice to secure a private act of Parliament to disentail in such cases; the close of the century saw the great outburst of canal construction, to be followed soon by railway and dock undertakings, and in the acts authorising the compulsory purchase of land for these purposes, tenants for life of settled land were given powers to sell without having recourse to separate private estate acts. As such enterprises became more frequent, these powers were made permanently available by various acts, but were still confined to sales to certain types of public undertakings, until the Settled Land Act, 1882, placed them at the disposal of tenants for life generally, transferring the limitations of the settlement to the proceeds of the sale.
Two great classics have illuminated this subject: (1) F. L. Ganshof, Qu’est-ce que la Féodalité? (1944, 1947), translated by Philip Grierson as Feudalism (1952), and (2) Marc Bloch, La Société féodale, 2 vols., 1939, 1940). The Cambridge Economic History and the Cambridge Medieval History contain several valuable chapters.
See F. de Zulueta, Patronage in the Later Empire (Oxford Studies in Social and Legal History, vol. i), 1909.
Note the contrast between the comitatus and feudal custom, where the lord demanded faith from the man.
See Du Cange, Glossarium (1887), s.v. “Trustis”.
The Church had so much more land than she could use, that when she took an estate and gave it back as a precaria she usually added to it from her own estates; the rogans thus generally got twice as much as he had surrendered.
There has been much controversy over this (and most other matters connected with the early history of feudalism). See Esmein, Histoire du droit fran ais (ed. Génestal), 122, for a summary.
In the view of some historians the Crown had a legal right to mobilise the wealth of the Church in grave national emergencies. See Esmein, Histoire du droit français (ed. Génestal), 126.
Esmein, Histoire du droit français (ed. Génestal), 127 n. 302.
Virginia Statutes at Large, ii. 434, 435.
Ganshof, Contribution à l’étude des origines des cours féodales, Revue historique de droit (1928), 644.
On Anglo-Saxon feudalism there has been considerable controversy; see especially Maitland, Domesday Book and Beyond, 80-107, 150-172, 258-292, and notably 293-318; Adams, Origin of the English Constitution, 44-54; the criticism of Maitland’s views by Stenton, English Feudalism, 122 ff., is based on a very special definition of feudalism as embodied in the knight and the castle, and so cannot have much effect on the wider question (see, however, the comment of Douglas, Feudal Documents, civ. n. 2); Jolliffe, Constitutional History; Goebel, Felony and Misdemeanour; Stenton, Anglo-Saxon England. Note especially the summary of the controversy by D. C. Douglas, The Norman Conquest and English Feudalism, Economic History Review, ix. 128.
See Corbett in Cambridge Medieval History, iii. 405-408.
Douglas, Norman Conquest and English Feudalism, Economic History Review, ix. 128, sums up recent work.
Douglas, Feudal Documents, xcix-c; c, n. 1; above, p. 13.
For a brief survey of the controversy on this subject, see Plucknett, Bookland and Folkland, Economic History Review, vi. 64-72.
These two points are made by Jolliffe, English Book-Right, English Historical Review, l. 1-21.
Vinogradoff, Collected Papers, i. 91, 92. The recent attempt by Turner, “Bookland and Folkland”, Historical Essays in Honour of James Tait, 357-386, to reinstate folkland as State property has not been supported by other scholars; see the summary in Economic History Review, vi. 64-72.
Maitland, Domesday Book and Beyond, 257.
Maitland, op. cit., 302; Douglas, Feudal Documents, xcix.
Maitland, Domesday Book and Beyond, 299. It is also worth noting that the Anglo-Saxon laen is cognate with the German Lehn, a fief.
This may be a reminiscence of Justinian, Nov. vii. 3.
Maitland, Domesday Book and Beyond, 310.
The theory is stated briefly in Stubbs, Constitutional History (1875), i. 49.
Fustel de Coulanges, Les Origines du système féodale (1900); Recherches sur quelques problèmes d’histoire (1913). For his life see Pierre Gaxotte in the Criterion (1928), 258, and for his work see Professor de Blécourt’s article in Tijdschrift voor Rechtsgeschiedenis (1929) 150. Cf. Dopsch, European Civilisation (London, 1937), 20-26.
For a summary, see Vinogradoff’s article, “Village Communities”, in the Encyclopaedia Britannica (1911) and Peake, “Village Community” in Encyclopaedia of Social Sciences.
See Lemaire, Les Origines de la communauté de biens entre époux, Revue historique de droit français et étranger (1928), 584-643. Cf. Y.BB. Edward II (Selden Society), x. 240, for a wife’s will of half the total chattels of husband and wife.
Galbraith, An Episcopal Land Grant of 1085, English Historical Review, xliv. 355.
Douglas, Feudal Documents from the Abbey of Bury St. Edmunds, ciii, where the matter is admirably illustrated.
Chew, Ecclesiastical Tenants-in-Chief (1932), 118.
Printed in Stubbs, Select Charters, and annotated in Robertson, Laws of the Kings of England, 276, 370. Relief was fixed at a rate per fee by Magna Carta (1215), c. 2.
Vinogradoff, The Transfer of Land, Collected Papers, i. 157. The transactions there discussed come from a district where there was Danish influence, which had a leaning towards freedom of alienation, see above, p. 10.
Glanvill, vii, 1.
It is to be seen in the king’s court as late as 1203, however: Select Civil Pleas, no. 167.
But see the case cited above, n. 1.
Génestal, La Formation du droit d’aînesse, Normannia, i. 157, 174.
Planiol, L’Assise au comte Geoffroy, Nouvelle revue historique de droit , 117, 652 (it remained in force from 1185 until 1791); cf. Émile Chénon, L’Ancien Droit dans le Morbihan (Vannes, 1894), 10 ff.
Mary Bateson, Records of Leicester, 49. A French chronicler, on the other hand, asserted (Grandes Chroniques de la France, ed. Paulin, iv. 380) that an English parliament about 1263 wanted to abolish primogeniture. As to this compare Pollock and Maitland, ii. 274 n. 1, with Bémont, Simon de Montfort, 201 n. 6 (tr. E. F. Jacob, 202 n. 1).
Bracton’s Note Book, no. 1054.
Select Civil Pleas (ed. Maitland, Selden Society), no. 56.
Homans, Partible Inheritance, Economic History Review, viii. 48.
The following passages are based on Pollock and Maitland, i. 252-253, modified in the light of the later work mentioned in the footnotes.
Stenton, First Century of English Feudalism, 148.
Chew, Ecclesiastical Tenants in Chief, 6.
Stenton, op. cit., 135 ff.
Chew, op. cit., 3.
Some had enfeoffed more knights than they owed; see the tables in Chew, 19-20; a few figures for lay tenants will be found in Stenton, 138.
Stenton, op. cit., 178.
Chew, op. cit., 38.
Chew, Ecclesiastical Tenants in Chief, 46 ff.
Bracton, f. 80.
For an interesting judgment in which a lord who had used undue influence over a ward, and by collusion with a prior had deprived her of her land, was condemned to lose the seignory, see Bracton’s Note Book, no. 1840.
For a tenant who surrendered his fee and his homage to a harsh lord, see Eyre Rolls (Selden Society, vol. lix), no. 1450 (1222).
Stat. 12 Car. II, c. 24; Pound and Plucknett, Readings, 653-655.
Brevia Placitata (Selden Society), 135-136.
Above, p. 524.
Pollock and Maitland, i. 326 (translating from the Très ancien coutumier (ed. Tardif); the date of composition is c. 1200—a little later than our Glanvill). Génestal, La Tutelle (Caen, 1930). For some lurid light on feudal family life which seems to confirm the custumal’s argument, see Marc Bloch, Société féodale, i. 208 ff.
Henry I, coronation charter (1100), c. 4 (in Subbs, Select Charters). This was the general Anglo-Saxon practice: D. Whitelock, Beginnings of English Society, 94.
Assize of Northampton (1176), c. 4 (in Stubbs, Select Charters).
Above, p. 520.
Henry I, coronation charter (1100), c. 3.
Glanvill (ed. Woodbine), vii. 9, 10 and ix. 4; he only mentions the marriage of daughters, not of sons.
Pollock and Maitland, i. 324.
See e.g. Law Quarterly Review, xlviii. 423.
Stenton, Feudalism, 182-183.
Escheat is now abolished, and real property left without an heir goes to the Crown as bona vacantia (Administration of Estates Act, 1925, ss. 45, 46).
Pollock and Maitland, ii. 500.
Much interesting material is to be found in J. H. Round, The King’s Serjeants and Officers of State, E. G. Kimball, Serjeanty Tenure in Mediaeval England, and A. L. Poole, Obligations of Society.
Sometimes the heir is in ward to a near relative, who is accountable on the ward’s coming of age.
Statute of Marlborough (1267), c. 17.
See the royal declaration, for use in Ireland, printed in Sayles, King’s Bench, iii. p. xxx n. 5; in effect it applies the Statute of Marlborough, c. 17, to Ireland.
There is nothing particularly “mercantile” in burgage tenure; it is best regarded as a survival of early forms of socage which (owing to the borough’s customary status, or its charter) did not undergo the changes which the common law wrought in other unprivileged places; on this, see Tait, The Medieval English Borough, 100 ff.
Above, p. 17; Bracton’s Note Book, no. 21 (1219).
Possible examples of this sort of transaction occur in Eyre Rolls (Selden Society, vol. lix), no. 1459, Y.B. 30 & 31 Edward I (Rolls Series), 378 (1303) and in Y.BB. Edward II (Selden Society), x. 281.
Select Civil Pleas (Selden Society), no. 148; cf. Eyre Rolls (Selden Society, vol. lix), no. 173; Flower, Introduction to the Curia Regis Rolls (Selden Society, vol. lxii), 195, 216-217; for the effect of a purchase by a lord from his immediate tenant, see Y.BB. Edward II (Selden Society), xi. 85. Sayles, King’s Bench, i. 45; Y.BB. Edward II (Selden Society), i. 119.
Text in Stubbs, Charters.
The hazardous suggestion of [Ellesmere], Discourse upon Statutes (ed. S. E. Thorne), 168 n. 204, that a new tenure can be created by the consent of the parties, even after Quia Emptores, is not supported by F.N.B. 210 D.
For a lord who exacted 1000 marks from his tenant’s alienee “to have his good-will”, see Y.B. 21 & 22 Edward I (Rolls Series), 274.
For the contrary view, see Pollock and Maitland, i. 337 n. 5.
Magna Carta (1225), c. 31.
Cf. the effect of forfeiture for treason on mesne tenancies, above, p. 536.
Cf. the case of 1227 in Bracton’s Note Book, no. 1840, Pleas of the Crown for Gloucester, no. 50 (1221), and Eyre Rolls (Selden Society, vol. lix), no. 1450. The exceptional position of the king enabled him to forbid his own tenants to alienate churches held of him “in perpetuum” (into mortmain, apparently) without his assent: Constitutions of Clarendon (1164), c. 2. Cf. Sayles, King’s Bench (Selden Society), iii. pp. xxxix, 125.
All these documents are in Stubbs, Charters. For some observations on the working of the law, and some curious attempts to evade it, see Wood-Legh, Church Life under Edward III, 60-88. For the long conflict on the relation of the statute to the customs of the city of London, see H. M. Chew, Mortmain in medieval London, English Historical Review, lx. 1, and Sayles, King’s Bench, iii. pp. xxxix, 125.
For the text of an important legislative writ of this year, see G. J. Turner, A newly discovered ordinance, Law Quarterly Review, xii. 299.
Statutes of the Realm, i. 226. It is ascribed to the early years of Edward I by Maitland, Collected Papers, ii. 180, and “before 1279” by Sayles, King’s Bench (Selden Society), iii. p. lii n. 5. There is printed in Sayles, King’s Bench, iii. p. cxxii, a cutting letter from the king to Chief Justice Brabazon (which can be dated 1314) which accompanied a memorandum of prerogatives used in the chancery, for his information, since he had confessed his ignorance of the matter. If this memorandum was the tract De Prerogativa Regis—a tempting conjecture—then the tract may have had an official origin.
This is perhaps the explanation of a transaction which is noticed in Stenton, Feudalism, 220, wherein a sub-tenant paid a sum to the King, asking him to ensure that the tenant’s lord should not alienate the lordship without the tenant’s consent.
See F. Joüon des Longrais, La tenure en Angleterre au moyen age, Recueils de la Société Bodin, iii. 165; cf. Hogg, The Effect of Tenure on Real Property Law, Law Quarterly Review, xxv. 178-187.
From this arose the theory of dominium directum and dominium utile, the history of which is elucidated by E. Meynial in Mélanges Fitting, ii. 409-461. Cf. Armand Piret, La Rencontre chez Pothier des conceptions romaine et féodale de la propriété foncière (Paris, 1937).
An entail by substitution caused trouble: Y.BB. Edward II (Selden Society), ii. 21, and cf. ibid., p. 5.
Much historical material is collected by S. S. Ball, Division into Horizontal Strata of the Landspace above the Surface, Yale Law Journal, xxxix. 616-658. Horizontal hereditaments were common in mediaeval Oxford (H. E. Salter, City of Oxford in the Middle Ages, History, xv. 101) and in Tudor London in the Temple (Ball, u.s.). On the maxim Cujus est solum ejus est a coelo usque ad inferos see H. Goudy in Essays in Legal History (ed. Vinogradoff), 229 ff., and F. Ashe Lincoln in Starrs and Jewish Charters (Jewish Historical Society), ii. pp. lxxii ff.
The rule is discussed in Pollock and Maitland, ii. 289-294.
Coronation Charter of Henry I (1100), c. 4.
Westminster II, c. 16.
Westminster I, c. 48; II, c. 15.
Y.BB. Edward II (Selden Society), i. 137 and xxii. 146; Littleton, Tenures, s. 114.
Y.BB. Edward II (Selden Society), xix. 28; Y.B. 12 Richard II (Ames Foundation), 71 (1388).
Wm. Salt Society, Collections , 13-14, Bracton’s Note Book, i. p. xvi, correcting ii. p. 534 n. 8 (case no. 695).
4 & 5 Phil. & Mar., c. 8.
Above, p. 525.
For the earliest known examples, see Pollock and Maitland, ii. 16 n. 2, and cf. Coronation Charter of Henry I (1100), c. 3.
Round, Ancient Charters (Pipe Roll Society), no. 6; Madox, Formulare Anglicanum, cxlv, cxlvi, cxlviii.
Glanvill, vii. 18.
Bracton’s Note Book, no. 241 (1227) is a good illustration of some of these rules. Cf. S. J. Bailey, Warranties of Land in the Thirteenth Century, Cambridge Law Journal, ix. 82 at 88 ff. On the absolute failure of heirs, the lord could still take by escheat, but on the failure of the heirs of the body of the donee the lord’s reversion (while it lasted) would exclude the heirs general.
For the additional complication caused by discussing this situation in terms of Roman law, see the controversy between Bulgarus and Martinus over dos profectitia: H. Kantorowicz and W. W. Buckland, Studies in the Glossators, 98.
Cf. Bracton’s Note Book, no. 566; Pollock and Maitland, ii. 16. The maritagium in Normandy became inalienable as a result of Roman influence; see its history in Génestai, L’Inaliénabilité dotale normande, Nouvelle revue historique de droit, 1925.
The reversion after a maritagium was imposed by common law even although the deed does not provide for it; but the reversion after a fee tail is not effective unless expressly saved in the deed: Y.B. 30 & 31 Edward I (Rolls Series), 250 (1302), 384 (1303); contra, Bracton, f. 47; Holdsworth, iii. 113 n. 2. A gift in maritagium which limits a remainder will be construed as a fee tail: Y.B. 17 & 18 Edward III (Rolls Series), 342 (1343). For an early example of a remainder after a maritagium, see Bracton’s Note Book, no. 86 (1220).
Modus enim legem dat donationi, et modus tenendus est contra jus commune et contra legem, quia modus et conventio vincunt legem: Bracton, f. 17 b.
There are a score of cases listed under “Fee, conditional” in Maitland’s index to Bracton’s Note Book.
Cf. Glanvill, vii. 1 (ed. Woodbine, p. 97), who says that in such a case there is no gift, but only the promise of a gift.
Bracton, f. 17 (c. vi. § 1). Selections (with translation) will be found in Digby, History of the Law of Real Property (5th edn., 1897), 164 ff.
Note that there is so far no dogma saying that one cannot be heir of a living person; cf. Plucknett, Statutes and their Interpretation, 45; Pollock and Maitland, ii. 44; Y.BB. Edward II (Selden Society), ix. 28, where the point was contested.
Bracton, f. 17 b. For a great lady who under Henry II alienated some of her maritagium, see S. J. Bailey, The Countess Gundred’s Lands, Cambridge Law Journal, x. 89.
A maritagium seems to be alienated by fine in Eyre Rolls (Selden Society, vol. lix), no. 100 a (1221). The pleadings in a case of the next year (ibid. no. 1479) on the other hand imply that a maritagium is properly inalienable.
Text in Stubbs, Charters.
Stat. Westminster II, c. 1; Pound and Plucknett, Readings, 658-660.
On the question whether these remedies existed even before the statute, see below p. 561, and for De Donis generally, see Plucknett, Legislation of Edward I, 125 ff.
See Updegraff, The Interpretation of “Issue” in De Donis, Harvard Law Review, xxxix. 200-220. With this compare the curious rule that a bond binding “A. and his heirs” binds the son only, and not the son’s heir: Davy v. Pepys (1573) Plowd. 441, and p. 720, below.
Y.BB. Edward II (Selden Society), xi. 177; xii. 226.
Four degrees (or thereabout) are a common limit for all sorts of purposes. Writs of entry in the per and cui comprise four degrees, after which only writs in the post will serve. The peculiarities of parcenry ceased after four degrees, and the third warrantor of the title to goods could vouch no further in Anglo-Saxon law. At the fourth generation Anglo-Saxon rank became hereditary (J. E. A. Jolliffe, Constitutional History, 2); so too, four degrees may be the limit of a family settlement in Malta, thus carrying us back to Code of Rohan (1784) and ultimately to Justinian’s Novel 159 (as to which see D. T. Oliver, Roman Law in Modern Cases, in Cambridge Legal Essays, 255).
For alienations of maritagia in the time of Glanvill and Henry II, see Sir Christopher Hatton’s Book of Seals, nos. 68, 146, and cf. S. J. Bailey, The Countess Gundred’s Lands, Cambridge Law Journal, x. 89.
Y.B. 18 & 19 Edward III (Rolls Series), 201. Cf. Rot. Parl. Inediti, 227, 230 (1333); Rot. Parl., ii. 142 no. 47 (1343); 149, 150 no. 10 (1344); Sayles, King’s Bench, iii. pp. xxxv, cxx.
Y.B. 12 Henry IV, 9.
Since the above was written, some interesting matter has been collected by A. D. Hargreaves, Shelley’s Ghost, Law Quarterly Review, liv. 73.
Y.B. 20 & 21 Edward I (Rolls Series), 58 (1292).
Cf. Y.BB. Edward II (Selden Society), x. 269.
The peculiar wording of Westminster II, c. 3, was a disturbing factor.
Y.B. 33 & 35 Edward I (Rolls Series), 496.
Y.BB. Edward II (Selden Society), i. 117.
Y.BB. Edward II (Selden Society), i. 70 (1308), s.c. xi. 160. For a new-born child who came to court in his cradle, and successfully prayed to be received on the default of both his parents (purchasers in tail), see ibid. i. 72 per Toudeby.
There was naturally an increasing desire to equate it with the life estate; attempts dating from 1348 (Rot. Parl., ii. 170 no. 46) to make the tenant in tail after possibility impeachable for waste were unsuccessful.
Eyre of Kent (Selden Soc.), iii. 44.
The point is well made in Willion v. Berkley (1562), Plowden, 223 at 247 ff.
Y.B. 11 Richard II (Ames Foundation), 71-72.
Y.BB. Edward II (Selden Series), x. 114. Littleton, Tenures, s. 18, seems to take this view.
So, too, even earlier, Willion v. Berkley (1562), Plowden, 225 at 251.
On the subject of this chapter see the articles by Percy Bordwell in the Iowa Law Review, volumes xxxiii, xxxiv, xxxvi and xxxvii, and by G. L. Haskins in Harvard Law Review, lxii, Boston University Law Review, xxix, University of Pennsylvania Law Review, xcvii. 6.
Bracton, f. 17.
Pollock and Maitland, ii. 14 n. 4. As an alternative to his deduction from Y.B. 33 & 35 Edward I (Rolls Series), 362, it may be suggested that all that Bereford meant when he said that “there is no force in that word ‘assigns’, but simply in the word ‘heirs of Agnes’ ”, was that the word “assigns” was indeed repugnant in a deed establishing a maritagium; wherefore he would construe the deed as if the word “assigns” were absent and the gift were in the common form establishing a maritagium. The necessity of mentioning assigns in a conveyance of a fee simple is not discussed in the case (but see Percy Bordwell, The Running of Covenants—II, Iowa Law Review, xxxvi. 484, n. 2). The point did arise, however, in Y.B. 20 & 21 Edward I (Rolls Series), 232-233 (1292).
Challis, Real Property, 83. The idea goes back to the late fifteenth century. For the thirteenth-century view see the case reported in Casus Placitorum (Selden Society), 121, 124.
The following articles deserve careful study: Elphinstone, Notes on the Alienation of Estates Tail, Law Quarterly Review, vi. 280; Maitland, Remainders after Conditional Fees, ibid. vi. 22; Challis, Real Property (ed. Sweet), 428; cf. Percy Bordwell, The Common Law Scheme of Estates and the “English Justinian”, Iowa Law Review, xxxiii. 449, 466 n. 96.
Bracton’s Note Book, no. 86.
As late as 1472 a remainder was referred to as a “reversion”: Y.B. Pasch. 12 Edward IV, no. 7, f. 2 (which contains some highly speculative matter on the nature of a fee tail).
Bracton, f. 68 b, who treats the remainderman as a “quasi-heir who takes by substitution according to the form of the gift”. For a short outline of the substitution, see Viollet, Histoire du droit français, 757 ff. The language of “substitution” may even occur in early private deeds: Cartulary of St. Mary Clerkenwell (ed. W. O. Hassall), 46 no. 66 (before 1182), at least in an ecclesiastical context.
W. H. Humphreys, Formedon en Remainder at Common Law, Cambridge Law Journal, vii. 238. But see now S. J. Bailey, Warranties of Land in the Thirteenth Century, Cambridge Law Journal, viii. 275 n. 9, where point (ii) seems cogent; the initials in mediaeval registers, however, are rarely right.
Cf. Y.BB. Edward II (Selden Society), x. p. xl; Y.B. 18 & 19 Edward III (Rolls Series), 374-378 (1345).
Y.BB. Edward II (Selden Society), x. 98. Here the remainder was limited by indenture.
Y.B. 18 & 19 Edward III (Rolls Series), 378. It was strongly contended that the old doctrine laid down by Bereford and Herle was that a remainder could entitle to receipt only if it were created by fine. This tradition was inaccurate, for the case in 1311 shows Bereford granting receipt to a remainderman by deed. The tenant’s attornment made a reversion a fact ascertainable by a jury, but a remainder was “mere words”.
Y.B. 12 Edward IV, Pasch. no. 7.
On this, see generally, Percy Bordwell, The Common Law Scheme of Estates and the Remainder, Iowa Law Review, xxxiv. 401, 413 ff.
Y.B. 32 & 33 Edward I (Rolls Series), 328.
Y.BB. Edward II (Selden Society), ii. 4.
For a somewhat similar argument suggesting the abeyance of the fee, see Y.BB. Edward II (Selden Society), xx. 142 (1316).
Y.B. 10 Edward III, Michs. no. 8.
Professor A. D. Hargreaves has suggested to me that the parents gave to their third and fourth sons (born after the fine) the names of the original remaindermen who had died without issue. For a case in 1373 of a fine to “Robert and William his son”, where it appears that Robert had two sons both called William, see Y.B. 47 Edward III, Michs. no. 16, and the comment in Lord Cheyney’s Case (1591), 5 Rep. 68 b.
Cf. 39 Ass. 20 (1365).
Detinue, 46. This case admirably illustrates the need for combining all available sources in the study of Year Book material. In the first edition of this work we stated (as the text in Fitzherbert’s Abridgement expressly says) that the plaintiff was unsuccessful, and hazarded the opinion that nevertheless the case might not be inconsistent with those already discussed. The case has now been re-edited in Y.B. 11 Richard II (ed. Thornley, Ames Foundation), 283-288. It now appears that the best MS. has a blank where the others state that the defendant had judgment, and the plea roll records judgment in the plaintiff’s favour. In consequence of the discovery of the correct decision of this case, and a re-examination of the other cases, it would seem that the recognition of this type of remainder took place a century earlier than the date suggested in Holdsworth, iii. 135.
Y.B. 11 Henry IV, 74 no. 14.
Y.B. 9 Henry VI, 23 no. 19 at p. 23.
Littleton, s. 720.
Co. Lit. 377 b. Cf. below, p. 590.
Y.B. 9 Henry VI, 23 no. 19, where Babington observed that a devise is “marvellous”.
1 Rep. 88 b (1581). For discussions, see Challis, Real Property (ed. Sweet), 154; Holdsworth, iii. 107; Hargreaves, Shelley’s Ghost, Law Quarterly Review, liv. 75, casts doubt on the view expressed above.
Y.B. 24 Edward III, 70 no. 79. An interesting case in 1353 shows a gift to husband and wife in special tail, remainder to the right heirs of the husband; they had no issue, and the husband devised the fee simple. Held, that the devisee has sufficient title to bring the assize: 27 Ass. 60.
Y.B. 40 Edward III, f. 9 no. 18. Unhappily the text of the black-letter edition leaves the precise state of the pedigree in doubt.
In the previous century tenants pursued the same object by simply enfeoffing their eldest sons, until 52 Hen. III, c. 6, made the device ineffective.
Fifoot, Mansfield, 167-180.
In Anglo-Saxon times a husband covenanted with his wife’s family to make her a satisfactory “morning-gift”. His widow would forfeit this if she remarried (Canute II, 73 a); cf. the Kentish “Free-bench”, Pollock and Maitland, ii. 418. That seems also to have been the common law rule at the opening of the twelfth century: Henry I’s Coronation Charter (1100), c. 4. The fullest history of dower in the middle ages is in F. Joüon des Longrais, La Saisine, 315-441.
The policy of requiring an unmistakable public ceremony for a marriage conflicted with the policy of freeing marriage from complicated formalities, and with the desire to construe relationships as matrimonial whenever possible.
This rule seems implied in the pleadings of a case as early as 1221: Eyre Rolls (Selden Society, vol. lix), no. 1080, and was later regarded as the result of the language of Magna Carta (1217), c. 7.
Britton, ii. 236 ff., Harvard Law Review, xl. 925 at n. 13.
Exposition of the Statute of Gloucester, 6 Edw. I (1278), c. 3; Westminster II, 12 Edw. I (1285), cc. 3 and 4. For an earlier case in which dower was defeated by alienation, see Eyre Rolls (Selden Society, vol. lix.), no. 257 (1221). In no. 1159 (also dated 1221) a claim was bought out, and in no. 1433 (1222) a doweress got judgment against an alienee.
Domesday Book, i. 154 b; Pollock and Maitland, ii. 457.
Bracton’s Note Book, no. 1334 (1217); Eyre Rolls (Selden Society, vol. lix), no. 1023 (1221). So, too, the escheat on the death of a bastard deprives his widow of her dower: Y.BB. Edward II (Selden Society), x. 12.
The history of this has recently been explained by Sir William Holdsworth in his introduction to Y.B. 10 Edw. II, 1316-1317 (52 Selden Society), xvii. Cf. Casus Placitorum (Selden Society), 26 no. 68; Y.B. 11 Richard II (Ames Foundation), 158; Y.B. 13 Richard II (ibid.), 52.
This appears in Bracton, f. 95 b, who includes a recovery also.
Statute of Uses, 27 Hen. VIII, c. 10, s. 6. If the whole of the husband’s property was in uses, the wife was unprotected, for there could be no dower out of a use, but it was customary to make her a jointure of part of the property. As the statute executed all the uses, dower would arise out of the husband’s separate uses which had become legal estates; the statute foresaw this and enacted that the jointure should be a bar to dower.
3 & 4 Will. IV, c. 105 (1833).
The child must have been heard to cry, according to a decision of the king and council: Sayles, King’s Bench, i. 32-33 (1277).
Glanvill, vii. 18; it should be noted that Glanvill only mentions the rule in connection with the maritagium, and gives no indication whether it applied to the wife’s fees simple. (See, however, Pollock and Maitland, ii. 420 n. 1.)
Bracton, f. 438.
Y.B. 20 & 21 Edward I (Rolls Series), 39, 55 (1292).
Pollock and Maitland, ii. 417.
Summa de Legibus Normannie (ed. Tardif), cxix. 1. It was there called viduitas, or veufté. Remarriage was immaterial in England (except in Kent). See, however, Eyre Rolls (Selden Society, vol. lix), no. 1090 (1221).
It was also settled in 1226 that a second husband’s curtesy would take priority over the entry of an heir of full age to the previous husband. Patent Rolls (1225-1232), 96; cf. the case in the previous footnote. By De Donis a second husband had no curtesy in land entailed to the wife.
Mirror of Justices (Selden Society), 14. The object of the concession, according to an old, but plausible tradition, was to ease the lot of poor Normans who married English heiresses, and lost their fortunes when the wife died. “There are a number of cases, few but significant, in which there is reason to think that one of the Conqueror’s barons has acquired his fief by marriage with the heiress of an Old English family”: Stenton, English Families and the Norman Conquest, Transactions of the Royal Historical Society , 5.
For a reference to this “wardship” see Eyre Rolls (Selden Society, vol. liii), no. 908 1219); vol. lix no. 559 (1221).
Pollock and Maitland, ii. 418. In 1277 the issue was to be “seen, heard and baptised”: Sayles, King’s Bench, i. 32.
Statute of Gloucester (1278), c. 3; Westminster II, c. 3.
Bracton, ff. 315, 316.
Ibid. 316 b; Bracton’s Note Book, no. 607 (1231).
Bracton, f. 317; Magna Carta (1225), c. 4; 3 Edw. I (1275), c. 21; 6 Edw. I (1278), c. 5.
52 Hen. III, c. 23.
13 Edw. I, c. 14.
So, too, could a guardian in chivalry; 3 Edw. I (1275), c. 48.
6 Edw. I, c. 7.
Y.B. 3 Edward II, 16; for entry in consimili casu, see above, p. 362.
The reversioner may “pray to be received to defend his right” if the tenant omits to “pray aid” of him. Receipt existed in Bracton’s day on the default of a doweress (Bracton, f. 393 b) and was extended by Westminster II, c. 3 (1285), to reversioners after a tenant by curtesy, in dower, for life, or in tail. The procedure was amended by the Statute De Defensione Juris (20 Edw. I), 1292.
The judgment on a writ of covenant will be “that the covenant be held”; Bracton’s Note Book, no. 1739 (1226).
To eject a lessee was a disseisin to the lessor, however: Eyre Rolls (Selden Society, vol. lix), no. 102 (1221).
Bracton, f. 30. For a termor’s defence to an assize of mort d’ancestor see Y.B. 20 & 21 Edward I (Rolls Series), 228-230 (1292).
Bracton, f. 312 (citing two cases not in the Note Book). For doubts on the rule, see Casus et Judicia, no. 50 and (in the same volume) Casus Placitorum, 28-81; Brevia Placitata, 117.
See, however, the curious passage in Bracton, f. 30 b.
Bracton, f. 220 (who does not mention Raleigh’s name); the attribution is found in certain manuscript registers: Pollock and Maitland, ii. 108 n. 2. It is important to remember that terms of years in the thirteenth century fulfilled the same functions as feudal wardships and marriages, i.e. they were bought and sold as investments. The action of quare ejecit infra terminum is therefore closely related to various forms of quare ejecit for holders of wardships.
The writ as finally settled is directed against a purchaser from the lessor. There were some doubts for a while, however, as to whether the writ went even this far: Pollock and Maitland, ii. 108 n. 3. Cf. the note in Y.BB. Edward II (Selden Society), xiv (pt. 1), xv.
In 1529 he was allowed to “falsify” a recovery: statute 21 Henry VIII, c. 15.
See contra Challis, Are Leaseholds Tenements? Law Quarterly Review, vi. 69 (reprinted in his Real Property, ed. Sweet, 424).
Thus Bracton, f. 268, describes a plea that “if A. had seisin, it was only for a term”, and as late as 1389 the Year Books will speak of a termor’s seisin, e.g. Y.B. 13 Richard II (ed. Plucknett, Ames Foundation), 89. The suggestion in Pollock and Maitland, ii. 109, that a termor could sue for the breach of “his close” is not supported by mediaeval authority; the writs available for termors carefully avoided this expression for some time; the termor begins to talk about “his close” in the time of the Commonwealth: Bacon, Abridgement (1832), viii. 657.
Pollock and Maitland, ii. 115.
F. Joüon des Longrais, La Conception anglaise de la saisine, 141-148.
See the extracts from songs and sermons in Joüon des Longrais, 120, and in Harvard Law Review, xl. 924. Cf. Page, Estates of Crowland Abbey, 112 ff., who shows that lessors were generally poor or improvident.
Joüon des Longrais, 143.
Above, pp. 390 ff.
See the examples in H. G. Richardson, Oxford Law School under John, Law Quarterly Review, lvii. 319 at 327 n. 35. Early thirteenth-century rolls also mention the “loan” or “bailment” of land; the true nature of these transactions is rarely ascertainable: Eyre Rolls (Selden Society, vol. lix), nos. 127, 272 (1221); in no. 1018 it seems to mean a royal grant during pleasure; cf. Plucknett, The Mediaeval Bailiff, 16 ff.
The changes were not everywhere immediate or catastrophic: Page, op. cit., 120-129; Levett, The Black Death (Oxford Studies, vol. 5).
It was further suggested that the damages were limited to the past, and did not extend to the future of the term: Fitz. Ejectione Firme, 2. This action was in fact appropriated at first to cases brought after the lease had expired; quare ejecit, on the other hand, could only be brought during the term.
Y.B. 33 Henry VI, Michs. no. 19. The passage is merely a note of uncertain origin; there is no trace of any decision to this effect.
Y.B. 7 Edward IV, Pasch. no. 16, fo. 6; 21 Edward IV, Michs. no. 2, fo. 11.
There is no year book report, and so the sole authority for the statement is F.N.B. 220 H.
Above, p. 373.
Wigmore, Panorama of Legal History, ii. 565.
Holmes, Collected Legal Papers, 4 (reprinted from Law Quarterly Review, i. 162). Cf. Ames, Lectures on Legal History, 235.
Numerous examples will be found in Pollock and Maitland, ii. 233-239. The beneficiary was cestui a que use le feoffment fuit fait; when shortened to cestui que use it seemed that use was a verb, hence the plural cestuis que usent and, later, the forms cestui[s] que trust[ent]. Maitland Collected Papers, iii. 343. The phrase might later take such bizarre shapes as Setikki.
See, for example, Philippe Godding, Actes relatifs an droit régissant la propriété foncière à Bruxelles au Moyen Aze (Bulletin de la Commission Royale des Anciennes Lois et Ordonnances de Belgique), xvii. 88-164, nos. 2 (1303), 4 (1358), 6 (1397), 13 (1289), etc.
Some examples are collected in Ames, 238.
For what seems to be the enforcement of a use of land through common law forms, see Y.B. 11 Richard II (ed. Thornley, Ames Foundation), 119 (1387). The question has been asked why uses were not enforceable by assumpsit: Pollock, The Land Laws, app. E; Maitland, Equity, 115. The principal reason must have been that assumpsit can only afford damages and not specific performance. So, too, the cetique could have account (a personal action only) against a feoffee: Fitzherbert, New Natura Brevium, 117. For another guess see O. W. Holmes, Collected Papers, 11-12.
Sometimes this was expressed in terms of guardianship, as in Eyre Rolls (Selden Society, vol. lix), no. 257 (1221). Cf. below, n. 4.
The case in the previous footnote was decided upon a condition. Soo, too, was the case of 1409 discussed by Professor Hargreaves, Equity and the Latin Side of Chancery, Law Quarterly Review, lxviii. 487-488. The rule was that only the reversioner could enter for breach of condition, and so it was rarely of any help to beneficiaries.
Pollock and Maitland, ii. 237-239. There have been misunderstandings here. Friars could, and did, own their convents; but they could not hold revenue-producing investments: A. G. Little, Franciscan Papers, 56-57; no “uses” appear in the documents printed by Little in Essays in Honour of James Tait, 179. For a use held by Franciscans which they construed as a tenancy at will, see Y.BB. Edward II (Selden Series), ii. 76 (1308) where the plea seems closely modelled on that of a villein “who has nothing save at the will of his lord”.
Westm. I, c. 48. From this the conclusion was drawn that since the friend entered to the use of the infant, therefore the freehold was in the infant and he could bring novel disseisin: 8 Ass. 28 (1334). For the close similarity of the ideas of wardship and use, see Eyre Rolls (Selden Society, vol. lix), nos. 200, 257, 1013 (1221); Bracton’s Note Book, 754 (1233); Y.BB. Edward II (Selden Society), iii. 185 (1310).
See the entertaining arguments in Y.B. 41 Edward III, Michs. no. 2 ff. 17-19. Licences to alienate were needed if the land was held in chief: cf. Nicolas, Proceedings of the Privy Council, iv. 336 (1436).
In some cases re-entry was a sufficient remedy: Y.B. 21 Edw. III. Pasch. no. 2 (1347).
From Chichele’s Register ii. (ed. E. F. Jacob) it is clear that testators usually ordered their feoffees to convey legal estates rather than declaring new uses.
51 Edw. III, c. 6, several times re-enacted.
15 Rich. II, c. 5.
21 Rich. II, c. 3.
Rot. Parl., iii. 511; no legislation resulted.
Select Cases in Council (Selden Society), 33-34.
This attitude is neatly expressed by Montague in an argument in 1536: “to prove that uses were at common law, there is a writ in the Register called causa matrimonii prelocuti which lies when a woman enfeoffs a man with a view to a marriage between them, and the man then refuses to marry her, and she demands the land back; that writ is founded solely on the confidence which the woman placed in the man, and so it is clearly proved that confidence (and therefore the use) existed at common law”. How nearly common lawyers came to accepting the use can be seen from another remark of Montague (who next year became C.J., K.B.) in the same case: “the common law is nothing else than common reason, and common reason demands that one can put one’s trust in others, and a use is a trust between feoffor and feoffee” (Y.B. 27 Henry VIII, Pasch. 22, fo. 10).
1 Hen. VII, c. 1 (repeating the policy of 1 Rich. II, c. 9, and 4 Hen. IV, c. 7). For a petition on this subject temp. Edward III, see Sayles, King’s Bench, iii. p. cxxi (o)—in line 5 reading covyn for comyn and in line 15 averer per paiis for aver par pairs.
1 Rich. III, c. 1.
3 Hen. VII, c. 4.
4 Hen. VII, c. 17. For a curious argument that this statute takes away prerogative wardship, see Y.B. Michs. 13 Henry VII, f. 4 or Cases in Exchequer Chamber (Selden Society) ii. 161 (1497); the case explains the failure of the statute, and gives a long and informative debate on uses, conscience, prerogative and the like.
19 Hen. VII, c. 15.
1 Rich. III, c. 5.
Littleton, ss. 463, 464.
Y.B. 21 Henry VII, Hill. 30 (1506), where sale is distinguished from covenant.
Bro. Feoffment al uses, 40 (1532).
Subject, of course, to having a licence in mortmain; 15 Rich. II, c. 5.
The absence of these complications was much valued; early in the eighteenth century, however, curtesy was allowed out of a trust; Holdsworth, iii. 188.
Bro. Feoffment al uses, 40 (1532); Co. Lit. 19 b; Lord Cromwell’s Case, 2 Rep. 78 note 51. For the same reason, a term of years would not support a use according to the common lawyers, although the Chancery later allowed them; Holdsworth, iv. 471, 472. (For a clear early example of a use upon a term, see Y.B. 11 Richard II (1388), 240-242.)
See the interesting recollections of Hussey, C.J., in Y.B. Pasch. 22 Edward IV, f. 4 no. 18 (1482) and cf. Cases in Exchequer Chamber (Selden Society), ii. 13.
Titles depending on the earl were still obscure as late as 1439; see the documents in Rot. Parl., v. 11-12.
By 23 Henry VIII, c. 12 (1532) such uses hereafter to be made, whether active or passive, are declared void unless they are limited to endure twenty years or less.
Holdsworth, iv. 433-434.
Above, pp. 578-580.
It will be remembered that Henry VII’s ministers, Empson and Dudley, earned their ill-fame by their enforcement of these dues through the common law side of Chancery. Brodie, Edmund Dudley, (1932) Trans. R. Hist. Soc., 149, 157.
Stubbs first drew attention to these documents, and Maitland, English Law and the Renaissance, 45 note 11, printed an extract from Starkey’s England in which similar views are ascribed to Cardinal Pole. The documents were first printed and fully discussed in Holdsworth, iv. 572 ff., 449 ff.
The idea of peerage becomes prominent in this reign; cf. 31 Hen. VIII, c. 10 (1539), which is the first act to settle precedency among the nobility and official classes. Attempts were made to include similar provisions in the Act of Settlement, and in Stanhope’s Peerage Bill of 1719.
Holdsworth, iv. 455, 456; the text of the memorandum on uses is printed in Holdsworth, iv. 577-580.
27 Hen. VIII, c. 10. The text is in Digby, History of the Law of Real Property, 347-354. (His history must be taken subject to correction by Holdsworth.)
Maitland, Equity, 35.
Holdsworth, iv. 461.
Y.B. 21 Henry VII, Hill. 30 (1506).
The exercise of a power of appointment in certain circumstances has been suggested as a possibility which survived the statute: R. E. Megarry, The Statute of Uses and the power to devise, Cambridge Law Journal, vii. 354.
27 Hen. VIII, c. 16. Text in Digby, op. cit. 368.
Holdsworth, iv. 460, who adds, “it is far from being a sober statement of historical fact”. The language is certainly colourful, but the substance of the preamble is undoubtedly true.
Above, p. 568 n. 2. Originally the jointure was (as its name implies) an estate for life jointly with the husband, but it soon came to mean also a sole life interest.
32 Hen. VIII, c. 1.
34 & 35 Hen. VIII, c. 5 (1543).
Above, p. 174.
27 Hen. VIII, c. 16 (1536).
12 Car. II, c. 24.
Statute of Frauds (1677), 29 Car. II, c. 3, s. 7.
Cf. p. 564, above
Above, pp. 562-564.
Littleton, Tenures, s. 646.
Plowden, 21. Two “conditions” were discussed—a remainder to C. if B. die living A.; and to C. for life if he reside at Barton.
Littleton, Tenures, s. 720; above, p. 563.
The discontinuance put the fee in the alienee; this is “repugnant” to the proviso that the next remainderman should take.
Butler v. Bray (1561), Dyer, 189 b, at 190 b; Archer’s Case (1597), 1 Rep. 66 b.
Reeve v. Long (1695), 3 Lev. 408; 1 Salk. 227; 4 Mod. 282. The reversal of this decision by the Lords carried little weight at this time with the profession.
10 Will. III, c. 22 (1699); cf. the comment in Challis, Real Property (ed. Sweet), 140.
This point is put forward as early as 1317 in the very interesting discussion in Y.BB. Edward II (Selden Society), xxii. 15.
See the discussion in Holdsworth, vii. 112.
Archer’s Case (1597), 1 Rep. 66 b; Purefoy v. Rogers (1669), 2 Wms. Saunders, 380 at 387.
Below, p. 620.
Below, p. 596.
Duncomb v. Duncomb (1697), 3 Lev. 437; Dormer v. Parkhurst (1740), 6 Bro. P.C. 351.
See, in general, Challis, 138-141, and Holdsworth, vii. 114-115; Contingent Remainders Act, 1877.
Anon. (1561), Dyer, 186 a (note that the old rule that the feoffee must have a fee simple is already disappearing).
Brent’s Case (1575), Dyer, 339 b at 340. The expression occurs in Bracton, f. 160, 183 b (last line).
In spite of vigorous opposition the scintilla was recognised by a majority in Chudleigh’s Case (1595), 1 Rep. 113 b, after an entertaining controversy.
23 & 24 Vict. (1860), c. 38, s. 7; see the references in Holdsworth, vii. 140.
Brent’s Case (1575), 2 Leo. 14 at 18; Dyer, 339 b.
Chudleigb’s Case (1595), 1 Rep. 113 b at 137. The feoffee’s entry might also serve to evive vested uses: Delamere v. Burnard (1568), Plowden, 346.
Coke’s argument and the judgment of Popham, C.J., in Chudleigh’s Case are examples.
The classical statement of the rule is in Purefoy v. Rogers (1669), 2 Wms. Saund. 380 at 388, by which time the rule was about eighty years old (Holdsworth, vii. 127); cf. below, n. 3.
Examples are collected in Holdsworth, vii. 120-121.
There are hints of the rule in Chudleigh’s Case (1595), and it was applied to an executory devise even earlier in Challoner and Bowyer’s Case (1587), 2 Leo. 70; cf. above, n. 1.
Anon. (1536), Dyer, 7 a.
Anon. (1542), Br. Chattels 23; Bro. N.C. 33. Sometimes the gift was not expressed simply as for life (which might have swallowed up the whole term, to the detriment of the remainderman) but as “to A. for as many years as she shall live”: Weleden v. Elkington (1578), Plowden, 516.
The cases are listed in Gray, Rule against Perpetuities, 120-121.
(1609), 8 Rep. 94 b.
(1612), 10 Rep. 46 b.
Gray, op. cit., 122.
Duke of Norfolk’s Case (1681), 2 Swanst. 454 at 464; quoted in Holdsworth, vii. 131.
Purslowe v. Parker (1600), 2 Rolle, Abridgement, 253 no. 2, 793 no. 2; cited in Pells v. rown (1620), 2 Rolle Rep. 216 at 218-219.
(1620), Cro. Jac. 590. 2 Rolle Rep. 216.
Gray, Rule against Perpetuities, 128.
Child v. Baylie (1623), Cro. Jac. 459, confirmed previous opinions that such limitations were void.
Above, p. 563.
Printed in Holdsworth, vii. 546.
(1595), 1 Rep. 120, “commonly called the Case of Perpetuities” (1 Rep. was published in 1602).
Above, p. 564.
Above, pp. 593-594.
(1618-1623), Cro. Jac. 459; 2 Roll. R. 129; Palmer, 334; it was a devise of a term to A. and his assigns, but if A. die without issue living at his death, then to B. Both courts held that the devise over to B. was bad. Note, however, that while this was pending it was held in Pells v. Brown that corresponding limitations in a devise of a freehold were good. As Gray, Perpetuities, 119, remarks, the courts were especially suspicious of settlements of terms, and it was in connection with terms that the rule against perpetuities was first developed.
Above, p. 595.
(1681), 3 Cas. in Ch. 1; 2 Swanst. 454.
As the law stood after Child v. Baylie it was invalid.
Later becoming Lord Guilford.
3 Cas. in Ch. at 33.
3 Cas. in Ch. 49.
(1575), 3 Dyer, 339 b at 340.
Anon., Bro. Feoffement al Uses, 40, 54.
Above, p. 581.
Hence a bargain and sale (of the fee) before the statute was followed in practice by a feoffment. Similarly, a cestui que use in the late fifteenth century would give notice of his intention to the feoffee to uses, who would thereupon make a legal estate accordingly: Cases in Exchequer Chamber (Selden Society), ii. 12 no. 7.
In this and the succeeding cases it is clear that the parties hoped that the second use was executed by the statute, and that they had no thought of evading it, still less of creating a trust. They only turned to Chancery when they discovered their failure to come within the statute.
(1557), Dyer, 155 (and in Digby, Real Property, 375); 1 And. 37.
Anon., Cary, 14 (undated).
Girland v. Sharp (1595), Cro. Eliz. 382 (and in Digby, Real Property, 375).
(1600) 4 Inst. 86; for an analysis, see Holdsworth, v. 307.
(1634). “Because one use cannot be raised out of another, yet ordered and the defendant ordered to pass according to the intent” (Tothill, 188).
Ames, op. cit. 247 n. 2; Daw v. Newborough, Comyns, 242.
See Wigmore, The Pledge-Idea, Harvard Law Review, x. 321, 389, ibid., xi. 18; and Hazeltine, Geschichte des englischen Pfandrechts; Hazeltine, The Gage of Land, Essays in Anglo-American Legal History, iii. 636.
Remember that the mediaeval “pledge” (plegius) is almost always a person, not a thing. The Teutonic wed has come down to us by various routes as “gage”, “engagement”, “wage”, “wager”, and “wedding”.
Distress is at least as old as II Cnut, 19 (1027-1034), and the distrainor held as a gagee only; the right of selling a distress to satisfy a debt occurs in a few late local customs, but did not enter the common law until 2 Will. & Mary, sess. 1, c. 5 (1690).
Glanvill, x. 6-12.
Glanvill, x. 8.
For an example of the difficulty caused by this sort of transaction, see Y.BB. Edward II Selden Society), xviii. 36, 46. Cf. below, p. 605 n. 1.
The corresponding vifgage is a term of Norman law, but does not appear in English documents; Pollock and Maitland, ii. 119 n. 2.
Glanvill, x. 11.
Above, p. 572.
Bracton, f. 268 b; it will be remembered that such springing and shifting fees were common in connection with the fee conditional, already mentioned.
Y.BB. Edward II (Selden Society), xviii. 35 (1314). The charter was delivered to the neutral custody of a friar. Bereford’s practice in his private investments seems to reflect the equitable spirit of his judgment. See Sir Christopher Hatton’s Book of Seals (ed. D. M. Stenton), no. 251.
Y.BB. Edward II (Selden Society), xviii. 36, 50 (1314).
Y.B. 30 & 31 Edw. I (Rolls Series), 210 (1302). The case has many interesting features. The mortgagee refused the money when tendered, so the mortgagor paid it into the county court, re-entered the land, and was seised for a day and a night. This slight seisin, aided by her good title, enabled her to succeed in novel disseisin against the mortgagor who had ejected her and pleaded the charter of feoffment. For lengthy arguments in a similar but more complicated case (where also the mortgagee refused a tender) see Y.BB. Edward II (Selden Society), xi. 169-181 (1318).
Britton (ed. Nichols), ii. 128; the hope came from the heirs of improvident ancestors, but Britton replies that alienation is free, and so the heirs have suffered no wrong.
Eyre of Kent (Selden Society), iii. 85; below, p. 607.
Pollock and Maitland, ii. 124. Much detail is available in Select Pleas of the Jewish Exchequer (ed. Rigg, Selden Society); Calendar of Plea Rolls in the Exchequer of Jews (ed. Rigg and Jenkinson, Jewish Historical Society); Starrs and Jewish Charters (ed. Loewe, Jewish Historical Society).
Above, pp. 390-394. Elegit may also have Jewish affiliations; Pollock and Maitland, i. 475.
Littleton, s. 332. For a charter in fee simple, with livery “to hold until payment”, see Y.B. 21 Edward III, Pasch. no. 2 (1347).
Littleton, ss. 333, 337, 339.
Eyre of Kent (Selden Society), iii. 85, 132 (1314), where the rule about livery of seisin on different terms from those in the deed is the opposite of that in Littleton, s. 359.
On this, see H. D. Hazeltine’s valuable introduction to R. W. Turner, Equity of Redemption, xxxviii.
Exceptionally, there is an early example in Bracton’s Note Book, no. 458 (1230).
Some lurid examples of the unconscionable use of these instruments by a man whom even Chancery and Star Chamber failed to reach, in consequence of his influence at the court of Elizabeth, will be found in the valuable documents appended to Leslie Hotson, Shakespeare and Shallow.
This is the conclusion of Professor Hazeltine, loc. cit. xli.
Turner, Equity of Redemption, 90.
Holdsworth, vii. 365.
Above, p. 602.
For a valuable history of this period in considerable detail, see Turner, op. cit. The Prolegomena of Chancery and Equity, by Lord Nottingham, will appear in the “Cambridge Studies in Legal History”, and his own notes of his decisions will come from the Selden Society; both works are edited by D. E. C. Yale.
Fitzjames v. Fitzjames (1673), Finch, 10, is the earliest example (and is a little earlier than the statute); Russel v. Russel (1783), 1 Bro. C.C. 269, stated the subtle reasons for taking the case out of the Statute of Frauds.
See Hubert Hall, Select Cases in Law Merchant (Selden Society) for a list of the statutes (iii. 126), and the whole of vol. iii for illustrative cases.
For a brief collection of typical forms, see Holdsworth, iii. 666-673, iv. 568-572, vii. 547-559; the classical repertory is still Madox, Formulare Anglicanum (1702). The diplomatic (or formal) aspect is stressed in Hubert Hall, Studies in Official Historical Documents, and Formula Book (2 vols.); the best brief account is the introduction of F. M. Stenton, Gilbertine Charters (Lincoln Record Society) and his recent Latin Charters of the Anglo-Saxon Period (1955).
Plucknett, Bookland and Folkland, Economic History Review, vi. 64-72.
Vinogradoff, Transfer of Land, Harvard Law Review, xx. 532; Collected Papers, i. 149.
Pollock and Maitland, ii. 87.
See the impressive criticism by Galbraith, Foundation Charters, Cambridge Historical Journal, iv. 205.
In early charters the warranty may be secured by a pledge of faith: Stenton, Gilbertine Charters (Lincoln Record Society), xxix.
If the donee in fee was to hold of the donor by homage, then he was entitled to warranty as an incident of homage; tenants in tail are likewise entitled to warranty by the reversioner as an incident of tenure. Where there was substitution instead of subinfeudation and no express warranty, the Statute of Bigamists, 1276 (4 Edw. I), c. 6, imposed certain implied warranties. For a rich collection of material and a very valuable discussion, see S. J. Bailey, Warranties of Land in the Reign of Richard I, Cambridge Law Journal, ix. 192, and Warranties of Land in the Thirteenth Century, ibid., viii. 274, ix. 82.
Even the royal acts of the infant Henry III were sealed with William Marshall’s seal “because we have no seal”.
For the Anglo-Saxon and remoter origins, see Hazeltine, introduction to Whitelock, Anglo-Saxon Wills, xxiv n. 2.
Not necessarily a royal court. Cf. the remarkable example of a fine (between 1162 and 1166) in the court of William, earl Ferrers, printed in Stenton, English Feudalism, 51, 262. It contains a remainder after an estate tail, among other notable provisions.
See the lists (extending from 1175) in Maitland, Select Pleas of the Crown (Selden Society), xxvii; Round, Feudal England, 509; Round, The Earliest Fines, English Historical Review, xii. 293; Richardson, An Early Fine, Law Quarterly Review, xlviii. 415; Hazeltine, in Whitelock, Anglo-Saxon Wills, xxiii.
Later, there developed in addition a fuller form of the note called the “concord”, which in practice was the first of the documents prepared; Tey’s Case (1592), 5 Rep. 38 at 39; Sheppard, Touchstone (ed. Atherley), 3 n. f.
For an example of the later and more elaborate forms, see 2 Bl. Comm., App. iv. The whole procedure is called “levying” a fine. The supposed litigation is between the “querent” and the “deforciant”; when the terms of the fine are settled, the grantor is referred to as the “conusor”, and the grantee as the “conusee”.
H. G. Richardson, The Forgery of Fines, English Historical Review, xxxv. 405-418. There was a scandal in 1404; Rot. Parl., iii. 543 (82); 5 Hen. IV, c. 14.
For a suggested Jewish origin of this practice, see F. Ashe Lincoln in Starrs and Jewish Charters, ed. Loewe (Jewish Historical Society of England), II. lxxii.
The old writ was de fine facto, which was in the form praecipe quod reddat; the use of scire facias was much helped as a result of Westminster II, c. 45.
The fine sur conusance de droit come ceo q’il ad de son done contains an implication that the conusee is already seised; this may or may not have been true, but as it is matter of record it thus is practically equivalent to seisin, and the whole operation resembles a disseisee’s release to his disseisor. In other fines the sheriff delivers seisin. Since the statute de finibus levatis, 1299 (27 Edw. I), parties and their heirs were forbidden to deny the seisin, but strangers could continue to do so. For an early discussion of theory, see Sayles, King’s Bench, iii. 167. For the necessity of seisin even after a judgment, see Pollock and Maitland, ii. 101-102, and the cases collected in Holdsworth, iii. 241 n. 2. The procedure and technicalities of fines are elaborately explored in the introductions of G. J. Turner, Huntingdon Feet of Fines (Cambridge Antiquarian Society, octavo publications, vol. xxxvii) and C. A. F. Meekings, Surrey Feet of Fines (Surrey Record Society, nos. xlv, xlvi). For an important discussion of theory, see Y.BB. 21 & 22 Edward I (Rolls Series), 404.
Below, p. 619.
Hitherto even a parol bargain and sale would raise the use.
Above, p. 600.
Sheppard, Touchstone (ed. Atherley), 225 n.
Lutwich v. Mitton, Cro. Jac. 604. Common law leases followed by releases occur as early as 1260: R. Stewart-Brown, Chester County Court Rolls, 5.
Butler and Baker’s Case (1591), 3 Rep. 25 at 30 b.
7 Will. IV & 1 Vict., c. 26.
Above, p. 529.
For the denial of these propositions by Bracton, ff. 349b-350, see the comments by Lady Stenton in Yorkshire Eyre Rolls (Selden Society, 56), xvi.
It says nothing of the parallel situation of warranties by a doweress. There were petitions for a similar enactment to cover these also in 1315 (Rot. Parl., i. 336 no. 3, which arose out of a case in 1313, Y.BB. Edward II (Selden Society), xv. 118 ff.) and again a few years later (Sayles, King’s Bench, iii. p. cxvi g), but no remedy was given until the statute 11 Henry VII, c. 20 (1495). Another aspect of collateral warranty was raised in parliament in 1376, but again without result: Rot. Parl., ii. 334 no. 77. For the pre-statutory rules of assets by descent (which affected the excambium only, and not the duty to warrant), see J. S. Bailey, in Cambridge Law Journal, viii. 293.
Y.B. 33-35 Edward I (Rolls Series), 388 (by this time the rule was so well established that the court frustrated the father’s attempt to evade it by conveying assets to his heir in such wise that they did not “descend”: cf. Bracton’s Note Book, no. 1683 (1225)). In 1292 (Y.B. 20 & 21 Edward I (Rolls Series), 302) the bar was pleaded unsuccessfully—if one can trust the very obscure report. The principle of assets by descent was admitted in Y.BB. Edward II (Selden Society), x. 36 (1311), and ibid. xii. 133 (1312).
The old books use the French expression assetz par descent—which seems to be the origin of the modern English “assets”.
These words were ill-chosen, and do not in themselves assist in the classification of warranties. The clearest exposition of this very tangled subject is Charles Butler’s note to Co. Lit. 373 b, n. 2 (1823).
For very early attempts, see Richardson, Law Quarterly Review, xlviii. 422 (1181), and Bracton’s Note Book, no. 77 (1219); the point is clearly decided in 1316 in Y.BB. Edward II (Selden Society), xx. 99 ff.; Littleton, s. 712.
Littleton, s. 713.
Littleton, s. 716. But see Y.BB. Edward II (Selden Society), xx. 280 (1318), where issue is taken on the descent of assets; Littleton’s rule was not yet in existence.
Rot. Parl., ii. 334 no. 77 (1376). London had already taken the matter into its own hands by abolishing the rule in 1365 (Liber Albus, 496; Letter Book G, f. 154) in terms closely resembling the act of 1706.
4 & 5 Anne, c. 3, s. 21 (1706).
For a reversion barred by a collateral warranty, see Rot. Parl., ii. 195, no. 81 (1347).
It was suggested (but not seriously maintained) that since De Donis exempts the issue from the effects of a fine, but says nothing of remainders, that therefore a fine would bar remainders: Y.BB. Edward II (Selden Society), xxii. 18 (1318).
34 Edw. III, c. 16.
1 Rich. III, c. 7 (1484); 4 Hen. VII, c. 24 (1490).
Pollock and Maitland, ii. 102.
Anon. (1527), Dyer, 2 b; 28 Hen. VIII, c. 36 (1536).
Much historical matter on recoveries is collected in Pelham’s Case (1590), 1 Rep. 14.
Littleton, s. 689.
Co. Lit., 362 a.
32 Hen. VIII, c. 31 (1540).
14 Eliz., c. 8 (1572).
Westminster II, c. 3 (1285), and De Defensione Juris, 20 Edw. I, c. 1 (1292); the right was later lost, Registrum Brevium, f. 235; 2 Inst. 345.
Sheppard, Touchstone, 40. The first edition was in 1641; there is a general opinion that so good a book could not have been written by Sheppard, and a late tradition ascribes it to Dodderidge, J., K.B., 1612-1628; Holdsworth, v. 391-392.
Touchstone (ed. Atherley), 38 n. b; Hudson v. Benson (1671), 2 Lev. 28.
Pigott, Common Recoveries (1739), 13 ff.
Adding, “Mr Pigott has confounded himself and everybody else who reads his book”; Martin d. Tregonwell v. Strachan (1744), 1 Wils. 73.
Y.B. 12 Edward IV, 19 (translated in Digby, Real Property, 255-258). For comments see Elphinstone, Alienation of Estates Tail, Law Quarterly Review, vi. 280; Maitland, Taltarum’s Case, ibid., ix. 1; G. J. Turner, Taltarum’s Case, ibid., xii. 301; Challis, Real Property (ed. Sweet), 309; Holdsworth, iii. 119, 137.
2 Bl. Comm., 358-361.
21 James I, c. 19, s. 12 (1624).
43 Eliz., c. 4 (1601).
2 Bl. Comm., 376.