CHAPTER III. FEUDAL LAND LAW. ALTHOUGH the germs from which a feudal system, or one in which the organization of society is based upon the tenure of land, might develope certainly existed in England before the Conquest, the Feudal System as it grew in England after the coming of William was undoubtedly of Norman introduction. The essential features of feudalism are tenure of land by each landowner of a superior to whom he is bound by a tie of personal fealty, from whom he receives protection and security, and to whom he owes services, usually military, as the consideration for his enjoyment of the land. The English system shows in addition a personal tie of fidelity to the king as supreme landowner, which overrides the vassal's fealty to his immediate lord, and which tends to counteract the disruptive effects of the continental feudalism, in which the great tenants in capite were each an almost independent potentate over whom the king, his nominal lord, had practically no control. The justification of the system is the organization for national defence which it provides at a time when nations and lands were only safe in the possession of the strong man armed. For agricultural purposes there was no advantage except comparative security of tenure: the reason of the system was not so much the efficient, as the safe, tilling of land. It cannot be truly said that feudalism was imposed on England at one time or by one measure. Its greatest effects were seen among those who owned the land; the condition of the cultivators was at first but little changed. The Folc-land of before the Conquest became the Terra Regis of the Norman kings; the large estates of the principal English nobles were confiscated by William and distributed by feudal tenure among his leading followers, who in their turn rewarded with grants of land to be held of them by military service the armed men in their train. But it is not probable that the cultivating portion of the nation was much affected in tenure by the Conquest, except in those counties whose fyrd fought for Harold at Hastings, or which King William laid waste in the north, or in the case of the smaller freemen whose land was too insignificant to confiscate, and whose very insignificance led them to commend themselves and their land to a lord'. According to many writers, the period of the Conquest was marked by the rapid conversion of independent village communities into manors dependent on a lord, but Mr Seebohm's investigations have gone far to disprove this theory, and if this is so, if communities in form manorial were widely prevalent before the Conquest, the tenure of land from the point of view of its cultivators was practically unchanged, though the tenure of the owners of the land became more definitely feudal, and the services they rendered more precise. The English feudal system grows rapidly into completeness: Ranulf Flambard, the justiciar of William Rufus, is the first to give it definiteness, by developing its incidents on a logical basis in the interests of the superior lords. Such legislation as we find is in the interests of the greater landowners, and the complaints as to the working of the system are of the uncertainty of the incidents of its tenure, which enables tenants to be oppressed by extortionate demands. When the commutation of personal service for money payments, which dates from the institution of scutage by Henry II. in 1159, sets in, the system becomes rather a financial boon to the lords than a system of national defence, and from the region of finance we shall be brought to consider the commercial aspect of the land question. Of the Saxon tenures of land Folc-land, as we have seen, became the Terra Regis; the land of free communities, if any 1 v. supra, pp. 9, 26. such existed, was probably converted in manorial form into the property of a lord, the tenure of its cultivators changing for the worse, though their dependence ensured their protection. The land of manorial communities was not affected as regards its cultivators, though its lord held by a definite feudal tenuré. Heir-land, as a tenure, and so far as large proprietors were concerned, was probably entirely superseded by the feudal tie, though traces of its incidents remained in the restraints on alienation noticed by Glanvil, probably also among the smaller proprietors who did not hold their lands by military service, and in the free tenants of manors; this survival would be helped by the abolition of wills of land. Book-land, in the sense of a tenure continuing under the Anglo-Saxon "books," entirely disappeared, though the grants of land made by charter were of a similar nature, with the addition of the annual services and rents. Tenures, from the landowner's point of view, were much simplified, as landowners fell into two classes; those holding of the king or of mesne lords by military tenures of various kinds, a class which comprised the great mass of feudal tenants, and those holding by free and peaceful services, the free tenants in socage. From the cultivator's point of view we have still the free tenants of the manor holding by free and certain services, contrasted with the villani, and lesser manorial tenants, holding, though often freemen themselves, by servile tenure and uncertain services. The history and incidents of the tenure of the landowners however concern us most here. I. Alienation during life. This might affect two interests in the land, those of the heir of the alienor to whom the lands should otherwise descend, and those of the lord of the alienor to whom the services from the land were due, to whom the lands might escheat, and who might have limited his grant by prescribing a line of descent for the land. To deal first with the case of a simple estate of inheritance, or a grant in fee by the lord, we find in Glanvil, writing about 1180, restraints in the interests of the heir, of which no traces are found afterwards. These appear to be derived from the incidents of Heir-land, though the statement of them is not 40 POWERS OF ALIENATION very precise. According to Glanvil', a landowner may during his life alienate a certain portion of his land (quaedam pars terrae) with or without the consent of his heir, and he instances grants in maritagium to his daughter, or in eleemosynam to the church. He defines this quaedam pars terrae a little more precisely as rationabilis pars terrae. But this alienation is restrained by the condition that it must not deprive his sons of their share of the inheritance. Thus if he possesses land acquired by inheritance, and also land acquired by purchase (per questum), he may alienate the whole of his purchased land, without the consent of his heirs; but in the case of his lands acquired by descent, if he has heirs, he may only alienate the "reasonable part," an alienation which his heirs will be bound to warrant. Of his socage lands he cannot grant to any of his sons during life a share of his hereditary land, larger than would descend to that son on his father's death. If he has only acquired land by purchase, the strict rules as to alienation apply to that also; he has only free power of alienation over his purchased land, when he has inherited land with which to satisfy the claims of his children. These restrictions seem framed in the interests of the heir; a similar distinction between inherited and purchased lands appears in the customs of some manors3. This passage in Glanvil receives some confirmation from two passages in that part of the unofficial compilation, known inaccurately as the "Laws of Henry I.," which purports to treat of the "Customs of Wessex," viz. “Primo patris feudum primogenitus filius habeat; emptiones vero, vel deinceps acquisitiones suas det cui magis velit. Si bocland habeat quam ei parentes dederint, non mittat eam extra cognacionem suam." "Et nemo forisfaciat feudum suum legitimis heredibus suis, nisi propter feloniam vel reddicionem spontaneam; et 1 Gl. vi. 1. 2 The Mirrour of Justice, c. 1, § 3, speaks of it as "one fourth," but the Mirrour is hardly reliable. e. g. Brigstock in Northampton shire, where lands acquired by descent nulli liceat forismittere hereditatem suam de parentela sua datione vel venditione...maxime si parentela contradicat1. These extracts point to the relics of Heir-land, limited in descent to the family, and protected from alienation, and to its distinction from land acquired by purchase. It would seem to follow from the feudal theory of a personal and territorial tie between lord and vassal, protection and property granted for service and fidelity, that the tenant under the grant could not substitute another in his place without the consent of his lord. Such was, we know, the rule of continental feudalism, and it is stated by Sir Martin Wright to have been the law of England'. It is all but certain however that this rule did not prevail in England; that alienation by a tenant of the whole of his land, so that his feoffee should hold in his place of the chief lord, could not be prevented by his lord, except in the case of tenants in capite, for whose alienations the king's license became requisite about the year 1236. But while this was so, the tenant could not alienate part of his land to be held directly of the lord, for thereby the lord would be deprived of his right to distrain on the whole seigniory for the whole of the services. The tenant could however alienate part of his land to be held of himself as mesne lord until the passing of the statute Quia Emptores. Bracton states the law in accordance with this; he says that in cases where there is no special restriction in the donation, the tenant may alienaté to whom he will, for though there may be a damnum to the chief lord yet there is no injuria, or legal wrong. He denies, “salva pace et reverentia capitalium dominorum," that the lord loses his services; for the lord, he says, cannot claim more of right than the certas 1 L. 88, § 14. 2 Wright on Tenures, pp. 154-167. 3 The chief passage of Bracton on the subject, besides that cited in the text, is, f. 81-si tenens...se dimiscrit ex toto de haereditate sua et alium feoffaverit tenendum de domino capitali, ex quo casu tenens absolvitur ab homagio et extinguitur homagium, velit nolit dominus capitalis, et incipit in persona feoffati. The whole subject has been carefully discussed by the Lords' Committee of the Dignity of a Peer, 1st Report p. 398; see also Coke, 11. 66. |