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CHAPTER 3: INHERITANCE AND ALIENABILITY - 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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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.
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.