Front Page Titles (by Subject) A CONVEYANCER IN THE THIRTEENTH CENTURY 1 - The Collected Papers of Frederic William Maitland, vol. 2
A CONVEYANCER IN THE THIRTEENTH CENTURY 1 - Frederic William Maitland, The Collected Papers of Frederic William Maitland, vol. 2 
The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University Press, 1911). 3 Vols. Vol. 2.
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A CONVEYANCER IN THE THIRTEENTH CENTURY
Among the monuments of the legal industry of the great age which saw English law becoming a science, the age of Edward I, there are, I am assured, many collections of precedents in conveyancing, which await an editor. Lately, while looking for other things, I happed on three in our Cambridge Library: they are contained in the MSS. Ee. i. 1 (f. 225), Dd. vii. 6 (f. 55), Mm. i. 27 (f. 78). The first and third of these seem to belong to the period before the Statute Quia Emptores; the second is a little later. Of the first I may be allowed to say a few words. The book in which it is found belonged to the monks of Luffield Priory, which stood on the border between the counties of Buckingham and Northampton. It purports to be a work composed by one John of Oxford, and we may gather from its contents that John of Oxford became a monk at Luffield. It begins with a short preface touching the desirability of having written evidence of legal transactions—“Cum humana condicio vergat ad decliue et generaliter loquendo proniores sunt homines ad malum natura carnea quam ad bonum,” and ends thus: “Explicit modus, et ars componendi cartas, cyrograffa, convenciones, obligaciones, testamenta, litteras presentacionum ecclesie, et institucionum, suspencionum, certificacionum, edicionum et literarum dimissoriarum et litterarum pro pecunia patri a scolari destinatarum secundum Johannem de Oxonia et similiter quietarum clamacionum et manumissionum. Explicit expliciat, ludere scriptor eat.” Let us see what forms this ancestor of our Jarmans and Davidsons thought profitable for mankind, and let us not omit to notice any dates that occur:—
- 1. Charter of feoffment in fee simple “tenendum de me et heredibus meis.”
- 2. Alia carta que tangit condiciones utiles emptori. Charter of feoffment “tenendum dicto J. et heredibus suis vel cuicumque vendere legare vel assignare voluerit.”
- 3. Charter of feoffment for life.
- 4. Charter of feoffment in frank almoign.
- 5. Carta de domo religiosa seculari concessa. Brother J. Master of the Hospital of S. John of Oxford and the brethren of the said place make a feoffment of land in the parish of All Saints, Oxford, to R. F. his heirs and assigns save Jews and any other religious house.
- 6. Carta de libero maritagio: to the husband and the heirs that he shall have by my daughter whom I have given him to wife, and in case she shall die without an heir de se, the land shall return from the husband to me, my heirs or assigns.
- 7. Carta de dote libera. I have given certain land to my wife by way of dower for her life.
- 8. Quitclaim to W. et heredibus suis et cuicumque vendere, dare, legare, vel assignare voluerit in perpetuum.
- 9. Another quitclaim supposed to be made by J. of Oxford.
- 10. Carta de maritagio. Feoffment of a burgage in municipio Oxonie to hold to husband and wife and their heirs proceeding from the wife. If the wife dies without an heir de se I will that the land revert to me my heirs and assigns without any contradiction on the part of the husband.
- 11. Carta de empcione redditus et servicii.
- 12. Carta specialis de vendicione terre...tenendum de me et heredibus meis sibi et heredibus suis et cuicumque et cuilibet dare vel legare vel assignare et quandocunque et ubicumque dimittere voluerit tam in prosperitate quam in egritudine excepto loco religionis et judeissmo.
- 13. Carta de confirmacione vicarie.
- 14. Sale of a villain for the purpose of manumission. I have granted and quitclaimed to H. my “native” R. with his progeny (sequela) and all his chattels for ever, for 10 marks of silver.
- 15. Consequent manumission. H. now manumits R. whom he purchased from A. B., and for further assurance hands over the deed of purchase.
- 16. Sale and manumission of a villain effected by a single deed. B. grants to W. one R. with his chattels and a virgate of land held by him in servitude in order that W. may manumit R. and make him free, “so that he with his whole suit and all the things aforesaid may remain a free man, rendering to me and my heirs 10 shillings a year.” For this grant B. has received 10 marks from W.
- 17. Lease dated 1272. A conventio by which A. demises to W. all his land at Preston with the manor thereto belonging, to hold to him his heirs and assigns for 10 years at a rent of a pair of gloves or 6d., W. having given to A. £30 to deliver his land from the Jews. The lessee is to repair.
- 18. Alius modus cyrographi. Dated 1274. Lease for ten years of land with a manor and farming stock, which is valued; tenendum to the lessee his heirs and assigns for the said term; rent of ten shillings; £100 paid by lessee to lessor for this lease. The lessee finds pledges for the fulfilment of his obligation. Both parties pledge faith. Instrument executed in duplicate.
- 19. Cyrographum de acris terre. Dated 1274. Lease of an acre of arable land and half-acre of meadow for ten years. In the parcels the “aqua que vocatur Charewelle” is mentioned.
- 20. Cyrographum de burgagio dimisso ad firmam. Dated 1274. Demise of a burgage in the High Street (magna strata) and the parish of All Saints, Oxford; tenendum by the lessee his heirs and assigns for twenty years; rent twenty shillings. Lessor is to do the repairs; if the house falls down he will rebuild it; if lessee has to spend money on repairs he may hold the premises until he has been satisfied for his expenditure according to the view and award of good and lawful men.
- 21. Forma obligacionis de pecunia mutuata. In respect of certain loans and purchases which took place in 1274, I am bound in certain sums to W., “vel suis certis procuratoribus vel heredibus suis vel executoribus hoc scriptum presens habentibus si de eo, quod absit, humanitus contigerit,” to be paid by certain instalments, under penalty of twenty shillings to be paid to the fabric of the church of S. Mary at Oxford, and of twenty shillings to the said W. the principal creditor, and of the twenty pence “suo certo nuncio vel procuratori hanc literam defferenti,” for their expenses. I have bound myself to this “fide media,” and have found sureties A., B., C., who have constituted themselves principal debtors along with me for the said monies. We submit ourselves to the judgment of any court, whether spiritual or civil, chosen by the creditor. We submit to be excommunicated by the bishop or to be distrained in all our movables and immovables by the king's bailiffs; any goods taken in distress may be sold in our absence; the bailiff making the distress may have twenty shillings for his pains; the custodian of the crusaders in such a bishopric for the time being shall have twenty shillings of our goods for the aid of the Holy Land if we make default in payment of any instalment. We renounce the privilege of crusaders and every cavil, more especially the king's prohibition. We grant that the creditor or his proctor shall be believed without making oath.
- 22. Obligation by the Prior of Luffield and his Convent. We have sold to Alexander le Riche of Brakele all our wool, to be delivered to him or his attorney at the shearing in 1272. If we make default we subject ourselves to the jurisdiction and coercion of the Archdeacon of Northampton or of Buckingham, whichever Alexander may prefer, that he may compel us from day to day by ecclesiastical censure, until we satisfy Alexander by delivering the wool and paying costs and damages. Dated Luffield, 1st Aug., 1271. Note that two witnesses with the tabellio or notary are enough for a bond; for a chirograph there should be four; for a charter seven or nine, but at any rate an uneven number.
- 23. Forma obligacionis de ecclesia dimissa ad firmam. Dated 1272. Lease by rector to chaplain of land and tithes in Preston for four years. Lessee submits to ecclesiastical jurisdiction and renounces divers privileges, including royal prohibition.
- 24. Obligacio denariorum. Short bond. I am bound to R. in sixty shillings to be paid to him or his certain attorney bringing these letters, within a fortnight after 1st Aug., 1274, and I am bound to pay any damages and expenses to which he shall be put.
- 25. Modus componendi testamentum. Anno gracie 1274 coram domino Willelmo presbitero ecclesie Omnium Sanctorum, A. de B. et B. de C. vicinis meis et coram aliis ibidem existentibus, et hoc audientibus et videntibus, ego J. de N....condo testamentum in hunc mundum [corr. in hoc modo]. Various pecuniary legacies to pious uses, to the poor, &c., to marry my daughter, to my servant, for the repair of bridges. All my household utensils to be divided between my heir and my wife. Appointment of A., B., C., D. executors. “Et ut hoc firmum sit et stabile tam ego quam predicti executores mei scriptum istud sigillorum nostrorum munimine roboravimus.” Schedule of debts owed to and by the testator. (Note that the executors are present when the will is made and seal it.)
- 26. Alius modus testamenti. I., J. of Oxford, clerk, on Tuesday next, after the feast of S. Edmund A.D. 1274, make my testament. Pecuniary legacies to pious uses, and six marks to my mother. No residuary gift. Reference to the last precedent for the concluding formula.
- 27. Litera presentacionis ecclesie per patronum episcopo.
- 28. Presentacio ab episcopo ad decanum. R. bishop of Lincoln in the fifteenth year of his pontificate addresses the Dean of Oxford, directing him to see whether a certain church is vacant.
- 29.Litera patens institucionis by R. bishop of Lincoln in the fourteenth year of his pontificate.De episcopo ad decanum pro eodem.Litera patens de decano pro eodem.
- 30. Litera certificacionis super ordinibus.
- 31. Litera citacionis by the Official of the Archdeacon of London. Dated 1271 in the church of S. Mary at Oxford.
- 32. Litera certificacionis super eodem; testifying that a citation has been made.
- 33. Litera suspencionis ab ingressu ecclesie.
- 34. Litera absolucionis.
- 35. Adam Prior of Luffield and his convent appoint “our beloved in Christ John of Oxford commonachum nostrum” to be our procurator; giving him large and general powers.
- 36. Adam Prior of Luffield and his convent appoint their fellow monk, brother John of Oxford, to be their proctor in proceedings before the bishop of Lincoln. Given at Luffield on Tuesday next after the feast of S. Lucy A.D. 1273.
- 37. Litera procuracionis.
- 38. Litera edicionis. Ecclesiastical plaint of C. against N.; C. has been transcribing a book for N.; he was to be paid according to the estimate of good men; N. has broken the agreement; C. seeks justice.
- 39. Precedent for a letter by an Oxford student to his father.
- 40. Litera warantizacionis. The Master of the Temple announces that R. de F. the bearer of these letters, “our merchant and tenant,” is travelling for our business and is therefore to be quit of tolls and tallages.
- 41. Litera acquietacionis. Release for a bailiff who has rendered his accounts.
- 42. Adam Prior of Luffield and his convent pray Oliver bishop of Lincoln to admit to priest's orders the bearer, namely, Walter of Mursele, deacon.
- 43. Adam Prior of Luffield excuses himself to the Archdeacon of Buckingham for not attending a synod at Aylesbury.
In its present form the treatise cannot be older than the year 1280, for it mentions Oliver bishop of Lincoln. This must be Oliver Sutton, who was consecrated in that year. The document in which Prior Adam is supposed to appoint John of Oxford proctor for the convent may cause us some little difficulty, for it is dated in 1273, while the only Prior Adam of whom we can hear presided over the monastery from 1279 to 1287 . But many of the instruments are supposed to bear a somewhat earlier date, and at any rate I think it clear that the book belongs to the earlier years of Edward I's reign:—the Jews are still in England, and Quia Emptores is still in the future.
Now there are a good many points in this book on which at a proper time and place a commentary might be hung. Thus there is the attempt to make freehold land devisable “per formam doni,” that is to say, to give the donee a power of devising it by making the gift to him his heirs and devisees. I am persuaded by Bracton's vacillating language , by a precedent that I have found in another collection, and by several actual deeds that I have seen, that this attempt very nearly succeeded, that the power of devise given by the Statutes of Henry VIII and Charles II was very nearly won in the middle of the thirteenth century. Then again when a lease of land is made for a term of years, it is made to the lessee “his heirs and assigns”; this however will surprise nobody who has looked at the earlier Year Books. Then again the manumission by way of sale is very interesting; this also I have seen in another collection. But on the whole the most curious documents are the bonds, the most curious because as yet no one has thought worth while to investigate the mercantile law of this period. The ordinary mercantile bond of the thirteenth century, if the transaction is a big one, is often a very elaborate affair, and in order to understand it we ought to know something of three different systems of law, the English Common law, the mediaeval Roman law, and the Canon law, for the obligor is made to submit himself to every conceivable jurisdiction English and foreign, temporal and spiritual. He has to renounce all manner of “exceptiones” given by Roman or given by Canon law, besides renouncing the writ of prohibition and submitting to extra-judicial distraint by the sheriff. Very curious too are the manifold devices by which the sin of usury is evaded, penal stipulations in favour of the relief of the Holy Land, or in favour of the building of Westminster Abbey, and agreements to accept the creditor's unsworn estimate of the “damages and costs” that he has been put to by being kept out of his money. The conveyancer of Henry III's day ought to have known a little of several kinds of law. When he drew a will he drew a document the validity and interpretation of which would be a matter for the ecclesiastical courts, and when he drew a bond he drew a document which he hoped would hold good by whatever law it might be tested. This leads me to venture a guess: Had Brother John been studying or teaching the art of draftsmanship in the learned city whence (perhaps not until he got to Luffield) he took his name? At Oxford of course Roman and Canon law were being read, and the latter at all events was not studied merely as a scholastic exercise but as a matter of practical importance, a “bread-and-butter science” if you will. Also it must have been almost necessary for every large monastery to have among its members some one who could readily draw all the documents of common use in the management of large estates and the transaction of mercantile affairs. Some houses were deeply engaged in the wool trade, constantly making elaborate bargains with Lombard merchants; all must have been glad of a brother who at short notice would draw a charter of feoffment, a will, a lease, a mortgage, besides being familiar with those “briefs, citations, and excommunications” of which our Prayer Book still speaks. People must have been taught these things, and why not at the great seat of learning?
But I am keeping to the last by way of plum the most striking testimony to the connection of this book with University life. I have said that among the precedents there is one for a letter to be written by a student to his father—a letter asking for money, an old, old form of “common assurance,” perhaps the oldest and the commonest. Once more I place it at the disposal of the studious but impecunious youth, premising that here and elsewhere the scribe of this Cambridge MS. has shown himself to be a careless workman.
Metuendo patri suo domino R. de B.—P. filius suus studens Oxonie pro salute famulatum in omnibus filialem. Precepit mihi vestra paternitas reverenda in discrecione mea ut statum meum et eventus mihi contingentes quam cicius possem vobis propallare. Quare vestre paternitati tremende post deum unico refugio, singulari me[e] miserie fulcimento parens, breviter ad presens significo me in optimo statu tam sanitatis anime quam corporis existere quod de vobis et karissima genitrice mea et domina, sororibus et aliis amicis meis plus corporeis oculis intueri quam audire desidero. Cum autem honestum sit studentis propositum, et artes liberales ejus intencio intendat adipissi [sic], pro hoc a patre largius meretur subveniri, unde paternitatem vestram, de qua non modicam reporto fiduciam, dignum duxi deprecandam et ea qua possum devocione attencius supplicandam quatinus mihi vestro indigenti, numismate carenti [Angl. in want of coin,] studium exercenti, nihil quid temporale lucranti, consilio et auxilio destituto, nisi vestra mihi solita cicius suspiraverit benivolencia ad erudicionis mee sustentacionem, quod sederit vestro beneplacito conferre dignemini, in presenti facto taliter provisuri ne pro tali defectu scolas relinquere, tempus amittere, domumque redire compellar. Vivite, gaudete semper sine fine, valete.