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• Preface to the Fifth Edition
• Table of Mediaeval Cases
• Table of Modern Cases N.b. the Report References, Which Appeared In This Table In Earlier Editions, Will Be Found Incorporated In the Footnotes In the Text.
• Table of Laws and Statutes
• A Concise History of the Common Law
• Book One: a General Survey of Legal History
• Part 1: The Crown and the State
• Summary
• Chapter 1: The Anglo-saxon Period: Races and Religion
• Chapter 2: The Conquest to Henry II: The Beginnings of Administration
• Chapter 3: The Great Charters: Law Separates From Administration
• Chapter 4: Edward I to Richard II: Statutes and Social Revolution
• Chapter 5: The Fifteenth Century: the Problem of Enforcement
• Chapter 6: The Tudors: Renaissance, Reformation and Reception
• Chapter 7: The Stuarts: Struggle For the Supremacy of Law
• Chapter 8: The Eighteenth Century: Industrial Revolution
• Chapter 9: The Nineteenth Century: Liberalism and Reform
• Part 2: The Courts and the Profession
• Summary
• Chapter 1: The Communal Courts
• Chapter 2: Seignorial Jurisdiction
• Chapter 3: The Crown and Local Courts
• Chapter 4: The Jury
• Chapter 5: The Origins of the Central Courts
• Chapter 6: The Elaboration of the Judicial System: 1307-1509
• Chapter 7: The Tudors and the Common Law Courts
• Chapter 8: The Rise of the Prerogative Courts
• Chapter 9: Prerogative, Equity and Law Under the Stuarts
• Chapter 10: Parliament and the Privy Council
• Chapter 11: The Courts In the Nineteenth Century
• Chapter 12: The Legal Profession
• Chapter 13: The Growth of the Judiciary
• Chapter 14: Professional Literature
• Part 3: Some Factors In Legal History
• Summary
• Chapter 1: The Civil Law of Rome
• Chapter 2: The Canon Law of the Church
• Chapter 3: Custom
• Chapter 4: Legislation
• Chapter 5: The Principle of Precedent
• Book Two: Special Part
• Part 1: Procedure
• Summary
• Chapter 1: The Forms of Action
• Chapter 2: Civil Procedure
• Chapter 3: Pleading
• Part 2: Crime and Tort
• Summary
• Chapter 1: Criminal Procedure
• Chapter 2: The Felonies
• Chapter 3: Misdemeanours, Trespass and Tort
• Chapter 4: Liability, Civil and Criminal
• Chapter 5: Defamation
• Part 3: Real Property
• Summary
• Chapter 1: Feudalism
• Chapter 2: Feudalism In England
• Chapter 3: Inheritance and Alienability
• Chapter 4: Tenures and Incidents
• Chapter 5: The Rise of the Entail
• Chapter 6: The Common Law Estates Down to 1540
• Chapter 7: Uses and the Statute
• Chapter 8: The Later Law of Real Property
• Chapter 9: The Mortgage
• Chapter 10: Conveyances
• Part 4: Contract
• Summary
• Chapter 1: Origins
• Chapter 2: The Fourteenth Century
• Chapter 3: Assumpsit to Slade’s Case
• Chapter 4: Contract After Slade’s Case
• Chapter 5: Law Merchant and Admiralty
• Part 5: Equity
• Summary
• Chapter 1: The Early History of Equity
• Chapter 2: The Formative Period
• Chapter 3: The Work of the Chancellors
• Part 6: Succession
• Summary
• Chapter 1: Inheritance
• Chapter 2: Intestacy
• Chapter 3: Wills

CHAPTER 1

FEUDALISM

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.

THE COMITATUS

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.

THE PATROCINIUM

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.

THE PRECARIA

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

MILITARY SERVICE

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

JURISDICTION

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.

[1]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.

[1]See F. de Zulueta, Patronage in the Later Empire (Oxford Studies in Social and Legal History, vol. i), 1909.

[2]Note the contrast between the comitatus and feudal custom, where the lord demanded faith from the man.

[3]See Du Cange, Glossarium (1887), s.v. “Trustis”.

[1]Dig. 43.26.1.

[1]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.

[2]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.

[3]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.

[1]Esmein, Histoire du droit français (ed. Génestal), 127 n. 302.

[2]Virginia Statutes at Large, ii. 434, 435.

[1]Ganshof, Contribution à l’étude des origines des cours féodales, Revue historique de droit (1928), 644.