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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 2

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.

ANGLO-SAXON FEUDALISM

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.

BOOKLAND

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.

FOLKLAND

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:

LAEN LAND

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.

[1]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.

[1]See Corbett in Cambridge Medieval History, iii. 405-408.

[2]Douglas, Norman Conquest and English Feudalism, Economic History Review, ix. 128, sums up recent work.

[3]Douglas, Feudal Documents, xcix-c; c, n. 1; above, p. 13.

[1]For a brief survey of the controversy on this subject, see Plucknett, Bookland and Folkland, Economic History Review, vi. 64-72.

[1]These two points are made by Jolliffe, English Book-Right, English Historical Review, l. 1-21.

[2]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.

[3]Maitland, Domesday Book and Beyond, 257.

[4]Maitland, op. cit., 302; Douglas, Feudal Documents, xcix.

[1]Maitland, Domesday Book and Beyond, 299. It is also worth noting that the Anglo-Saxon laen is cognate with the German Lehn, a fief.

[2]This may be a reminiscence of Justinian, Nov. vii. 3.

[3]Maitland, Domesday Book and Beyond, 310.