Landholding in England/Chapter 3

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"Homage is the most honourable service, and most humble service of reverence, that a frank tenant may do to his lord. For when the tenant shall make homage to his lord, he shall be ungirt, and his head uncovered, and his lord shall sit, and the tenant shall kneel before him on both his knees, and hold his hands jointly together between the hands of his lord, and shall say thus: I become your man (Jeo deveign vostre home) from this day forward of life and limbe, and of earthly worship and unto you shall be true and faithfuU, and beare to you faith for the tenements that I claime to hold of you, saving the faith that I owe unto our soveraigne lord the king; and then the lord so sitting shall kisse him.

"But if an abbott, or a pryor, or other man of religion, shall doe homage to his lord, he shall not say, I become your man, etc. for that he hath professed himselfe to be onely the man of God. But he shall say thus : I doe homage unto you, and to you I shall be true and faithfull, and faith to you beare for the tenements which I hold of you, saving the faith which I doe owe unto our lord the king.

"Also, if a woman sole shall doe homage, she shall not say, I become your woman; for it is not fitting that a woman should say that she will become a woman to any man, but to her husband, when she is married. But she shall say, I do you homage, and to you shall be faithful and true, and faith to you shall bear for the tenements I hold of you, saving the faith I owe to our soveraigne lord the king."—Littleton, "Of Homage."

THE reign of Edward I. is most important in the history of landholding in England. It was the period of the consolidation of the feudal system; it was the beginning of legislation on the transfer of land.

Military service was the foundation of the Norman land system. When there was no standing army, military service was a great part of the rent paid for land. The system was not without its compensations. As the term of service was strictly limited (forty days was the usual time), wars, though frequent, were not so continuous as they became when they were carried on by men whose sole occupation was fighting. But besides this the Norman system was a system of fines, most useful when taxation was more or less spasmodic. The sums exacted for recoveries, and the great profit a feudal lord made out of his wards and their marriages, enabled him to pay the sums demanded of himself by the King. Church lands were exempt from all these burdens,[1] so the first attempts of tenants to evade feudal burdens were by sham surrenders to religious houses. The tenants received their lands back at a nominal rent, to hold as Church vassals, and thus not only escaped military service, but were exempt from fines and recoveries. By the feudal theory, all land reverted to the "chief lord" at his vassal's death, and had to be recovered by the heir, for which of course the heir had to pay. Sometimes this payment was called "a relief," because it relieved the lord;[2] or a "recovery," because it recovered the land. An ecclesiastical community was a continuous corporation; it never died, so its lands never reverted, and therefore never paid recoveries.

When about one-fourth of the lands of England was held by the Church in frankalmoigne, the exemption of Church lands from military service began to make a serious difference in the number of fighting men liable to be called out for the wars in France, Normandy, or Scotland, especially in France, where for nearly 500 years the kings of England tried to retain their ancient possessions. So in 1279, when Edward I. was conquering Wales, and meditating the conquest of Scotland, he enacted the Statute of Mortmain, or the "Dead Hand."[3]

The object of this, as of all statutes of Mortmain, was to prevent the loss of feudal service by ensuring that land should never be transferred except upon the original conditions, and subject to the original burdens.[4] The Statute of Mortmain did not produce the desired effect—it was evaded by fictitious transfers and recoveries,[5] and in 1285 was passed the famous Statute of Westminster the Second[6]—more often called the Statute De Donis Conditionalibus, or "Concerning Conditional Gifts"; a statute which is said to have caused more discussion than any other on the Statute Book. Its effects were tremendous, and remain to this day. Before it, all inheritances in land were fee-simple[7]—which meant that the holder could leave his land to his heirs. It had always been the law of England, even in Saxon times, that on failure of the heirs specified in the original grant of the land, the land must revert to its original proprietor—called the "donor." But this was only as long as the donee had no child; the birth of a child gave him the power of "alienating" the land, and then he could repurchase it in "fee-simple absolute." He could do this, even if the child died before him, or if he wished to disinherit the child. The "condition" was held to have been fulfilled by the birth of an "heir," though that heir might never inherit; and as a fee-simple absolute, the land could descend to the holder's heirs in general, or to legatees, in accordance with the Common Law. Until the birth of a child to the donee, the donor was said to be invested with the "fee-simple expectant," and the expectant estate was called the "reversion."

If the tenant did not "aliene" the land, the course of descent was not altered by the birth of issue, for if the issue afterwards died, and then the tenant died, without making any alienation, the land, by the terms of the grant, could descend to none but the heirs of his body, and therefore, in default of them, must revert to the donor. "For which reason, in order to subject the lands to the ordinary course of descent, the donees of these conditional fees-simple took care to aliene as soon as they had performed the condition by having issue; and afterwards repurchased the lands, which gave them a fee-simple absolute, that would descend to the heirs general, according to the course of common law. And thus stood the old law." Blackstone adds that probably the inconvenience of these "fettered inheritances" induced the judges to "give way to this subtle finesse (for such indoubtedly it was) in order to shorten the duration of the conditional estates. But, on the other hand, the nobility, who were willing to perpetuate their possessions in their own families, to put a stop to the practice procured the Statute of Westminster the Second (commonly called the statute de donis conditionalibus) to be made; which pays a greater regard to the private will and intentions of the donor, than to the propriety of such intentions, or any public considerations whatsoever. … And hence it is that Littleton tells us, that tenant in fee-tail is by virtue of the Statute of Westminster the Second."[8]

The Statute De Donis made tenements given "conditionally" revert to the donor, if the tenant had no issue. Most of the questions about land which was not "common land" (to be considered later), concerned its transference. De Donis was devised to prevent the turning of "fee-simple" into "fee-simple absolute," by collusive recoveries. Religious communities were now forbidden to obtain lands by recovery. A jury was to try each case; if the jury decided against the religious person or community, the land in question was to be forfeit to the lord of the fee—that is, it was at once to revert to the donor. There were other provisions in the statute against the devices adopted to hold land exempt from feudal burdens. Tenants are forbidden to "set up crosses in their land, to defend themselves against the chief Lords of the fee," alleging "the privileges of Templars and Hospitallers." Such lands were to be forfeited to the chief lord, or to the King, as by the Statute of Mortmain.

Pigot calls De Donis "the family law." Both Coke and Blackstone agree in condemning it. Coke, writing in the reign of James I., says of it:[9] "The true policy of the common law was overturned by this statute. … But the truth was that the Lords and Commons, knowing that their estates in tail were not to be forfeited for felony or treason as their estates of inheritance were before the said act, and finding that they were not answerable for the debts and incumbrances of their ancestors … always rejected such Bills" (as were "exhibited" against it). And he says again: "When all estates were fee-simple, then were purchasers sure of their purchases, farmers of their leases, creditors of their debts, the king and lords had their escheats, forfeitures, wardships, and other profits of their seigneuries: and for these and other like cases, by the wisdom of the Common Law all estates of inheritance were fee-simple ; and what contentions and mischiefs have crept into the quiet of the law by these fettered inheritances, dailie experience teacheth us."[10]

And Blackstone, writing in the reign of George III.,[11] says: "Children grew disobedient when they knew they could not be set aside; farmers were ousted of their leases made by tenants-in-tail, for if such leases had been valid, then under colour of long leases, the issue might have been virtually disinherited; creditors were defrauded of their debts, for if tenant-in-tail could have charged his estate with their payment he might have also defeated his issue by mortgaging it for as much as it was worth. Innumerable latent entails were produced to deprive purchasers of the lands they had fairly bought; of suits in consequence of which our ancient books are full. … But, as the nobility were always fond of this statute, because it preserved their family estates from forfeiture, there was little hope of procuring a repeal by the legislature; and therefore, by the connivance of an active and politic prince, a method was devised to evade it."

Another most important statute was enacted five years later (1290). It is sometimes called the "Statute of Westminster the Third," but more often, Quia Emptores.[12] Its object was to prevent the "conditions" under which lands were sold from changing the tenure. Before the Statute of Quia Emptores, the King's greater barons frequently granted out smaller manors to inferior persons, who in their turn granted out still smaller estates in the same way, and this "subinfeudation" was going on indefinitely, until the great barons saw that they were losing all their feudal profits of escheats,[13] wardships and marriages, which fell into the lands of these "mesne" or middle lords, the immediate superiors of the actual tenant. The preamble of the statute very frankly says that "great men and other lords" thought it "very hard and extreme" that they should thus lose their profits, so henceforth all feoffees must hold of the chief lord (lord paramount), and not of the feoffer, or person who transferred the holding. And all lands must be sold subject to the same "service or customs," to which it had been subject by the original tenure. Quia Emptores "abolished all subinfeudations, and gave liberty for all men to alienate their lands to be holden of the next immediate lord" (Blackstone). This did not authorise alienation in Mortmain.

Before the Conquest, land could be left by Will. This almost ceased at the Conquest, and by the Common Law lands could be transferred only by "solemn livery of seizin" (delivery of possession), by matter of record, or sufficient writing. But Quia Emptores allowed freeholders (except the King's tenants in capite) to leave lands by Will.

For three hundred years, the legal history of English landholding is in great part the history of devices to obtain land free from feudal burdens, and of counter-devices to defeat these attempts. It must not be supposed that these feudal burdens constituted the whole of the demands made upon the people. The fifteenths and tenths granted by Parliament for the needs of the King and country were not included in the feudal burdens—which represented rent, as the fifteenths and tenths represented taxes.

As rent began to be substituted for personal service, the feudal system degenerated more and more into a mere system of extortion, described by Blackstone in a passage which shows the seamy side of the system. Those who have read the "Paston Letters" will remember instances of the abuses as to wards.

"By the degenerating of knight-service, or personal military duty, into escuage, or pecuniary assessments, all the advantages (either promised or real) of the feudal constitution were destroyed, and nothing but the hardships remained. Instead of forming a national militia … the whole of this system of tenures now tended to nothing else but a wretched means of raising money to pay an army of occasional mercenaries. In the meantime the families of all our nobility and gentry groaned under the intolerable burthens, which (in consequence of the fiction adopted after the Conquest) were introduced and laid upon them by the subtlety and finesse of the Norman lawyers. For besides the scutages … which however were assessed by themselves in Parliament, they might be called upon by the king or lord paramount for aids, whenever his eldest son was to be knighted, or his eldest daughter married; not to forget the ransom of his own person. The heir, on the death of his ancestor, if of full age, was plundered of the first emolument arising from his inheritance, by way of relief and primer seisin; and, if under age, of the whole of his estate during infancy. And then, as Sir Thomas Smith very feelingly complains, 'when he came to his own, after he was out of wardship, his woods decayed; houses fallen down, stock wasted and gone, lands let forth, and ploughed to be barren,' to make amends; he was, yet to pay half a year's profits as a fine for suing out his livery; and also the price or value of his marriage, if he refused such wife as his lord and guardian had bartered for, and imposed upon him; or twice that value, if he married another woman. Add to this, the untimely and expensive honour of knighthood, to make his poverty more completely splendid. And when by these deductions his fortune was so shattered and ruined, that perhaps he was obliged to sell his patrimony, he had not even that poor privilege allowed him, without paying an exorbitant fine for a licence of alienation."—"Commentaries," II. 75-76.

Blackstone well calls this a "complicated and extensive slavery." Palliatives were applied from time to time by successive Acts of Parliament, but what was wanted was to abolish the system altogether.

The legislation of Edward I., in the three great Statutes of Mortmain, De Donis, and Quia Emptores, had the same ultimate object of keeping the land as a nursery of fighting men. Mortmain ensured that no more lands should be exempt from feudal service, by forbidding landowners to alienate, or allow those who held under them to alienate lands to the Church. Quia Emptores by empowering freemen to sell—as long as they sold under feudal tenure—virtually made the smaller estates Crown fiefs, and turned the old "udall" freeholders into feudal vassals. These small landholders, whose lands were "udall" from time immemorial, and had been guaranteed to them by the Conqueror, could now sell, upon the sole condition that he to whom they sold should hold the lands of the "chief lord"—the King or other—"by such customs" as the seller had held them. There was now freedom of sale, but not of conditions. And as all "udall" lands were held under an obligation to defend the King, "alienation from service" was rendered impossible.

  1. The tenure of Church lands was in "frankalmoigne," or "free alms." Tenants in frankalmoigne had only to perform the "three necessities"—to keep up highways, build castles, and repel invasions. When the King wanted money, the clergy gave him so much in the £ of their revenues, taxing themselves separately from the rest of the kingdom.
  2. "The relief on a knight's fee was £5, or one quarter of the supposed value of the land; but a soccage relief is one year's rent."—Blackstone.
  3. "For that a dead hand yieldeth no service."
  4. This was not the first statute of Mortmain; there was another in 9 Henry III. (1225). It said that "religious men" could not acquire land from a tenant without the consent of the chief lord. The Statute of 1279 enacted that land transferred except on the original conditions of service should revert to the lord; or to the King himself, if the lord were "negligent," and did not resume possession within one year.
  5. "A feigned recovery was a device invented to break an English entail."—Chalmers' Encyclopædia.
  6. Statues were often named from the place where Parliament sat.
  7. "Tenant in fee simple is he which hath lands or tenements to hold to him and his heirs for ever."—Littleton. "'To have and to hold' meant to have an estate of inheritance, and to hold it of some superior lord."— Coke. "Land holden was distinguished from land allodial."—Notes to " Coke upon Littleton."

    Blackstone says: "Tenant in fee-simple is he that hath lands, etc., to hold to him and his heirs for ever; generally, absolutely, and simply; without mentioning what heirs, but referring that to his own pleasure, or to the disposition of the law."

    That is, a fee-simple is land which can be left, as money can be left, according to the wishes of a testator, and fee-tail is land which the testator cannot leave as he wishes. It is therefore often spoken of as "tied-up."

  8. "Commentaries," Bk. II. 112.

    Tail, from the French, "to cut," meant an estate "docked, cut off, or abridged"—a limited inheritance, "what issue shall inherit, and how long the inheritance shall endure." Tail may be general or special—to a man's issue by any wife, or only by the wife mentioned in the grant.

  9. Coke on Nevil's Case, 7th Report, 34.
  10. Coke upon Littleton, "Of Fee Tails."
  11. "Commentaries," II. 116.
  12. Quia Emptores terrarum. "Whereas the Buyers of lands of the fees of great men," etc.
  13. "Escheat," from échoir, to fall in, meant the falling in of an estate to the lord or donor, by the death of the tenant, or otherwise.