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CHAPTER 4: TENURES AND INCIDENTS - 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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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 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.