The History of English Law before the Time of Edward I. Frederic William Maitland

Arrangement of this book.How best to arrange a body of medieval law for the use of modern [p.207] readers is a difficult question. Of the two obvious methods each has its disadvantages. On the one hand, if we were to adopt the arrangement which would be the best for a code or digest of our modern law, though we might possibly succeed in forcing the old rules into new pigeon-holes, we should run a great risk of ignoring distinctions which our ancestors saw, and a yet greater risk of insisting on distinctions which for them had no existence. On the other hand, were we to aim at such an arrangement as a medieval lawyer would have adopted, the result would be to hide those matters which interest us behind the intricate mass of procedural rules which interested him. The nature of both these dangers may be explained by a few words.

Possible methods of arrangement. (1) The medieval scheme of law. The arrangement of Bracton’s treatise will for a moment seem one that is familiar enough to every lawyer; it is the most famous of all schemes. Following the Institutes, he treats of Persons, Things, Actions. But if we may take the number of folios given to each of these topics as an indication of its importance in his eyes, we find that the relation between them may be expressed by the figures 7: 91: 356.¹ Nor is this all. It is to his “law of actions” that we must often look for substantive English law. To a high degree in his treatment of “persons,” to a less, but marked, degree in his treatment of “things,” he is dependent on Azo and Roman Law. It is only as he approaches the law of “actions” that we begin to know that he is giving [p.208] us practicable English law and not speculative jurisprudence. As to Glanvill, the whole of his book is, we may say, devoted to the law of actions; he plunges at once into an account of the writ of right; and such arrangement as the Leges Henrici have, puts jurisdiction and procedure in the forefront. That characteristic mark of ancient jurisprudence, the prominent place given to what we sometimes speak of as “adjective law,” the apparent subordination of rights to remedies, is particularly noticeable in our own case, and endures until modern times: and naturally, for our common law is the law of courts which gradually acquired their jurisdiction by the development and interpretation of procedural formulas. Still, though we shall have to say much about the “forms of action,” we need not introduce the rules of property law as though they were but subsidiary to the law about assizes, writs of right and actions of trespass.

(2) The modern scheme.The danger that would be run were we to follow the other of the two courses may be illustrated by reference to that division of law into “public” and “private” which seems eminently well suited to be among the first outlines of any institutional work on modern law. Bracton knew of the distinction and could notice it as a matter of scholastic learning; but he makes little use of it.² He could hardly have used it and yet dealt fairly with his materials. Feudalism, we may say, is a denial of this distinction. Just in so far as the ideal of feudalism is perfectly realized, all that we call public law is merged in private law: jurisdiction is property, office is property, the kingship itself is property; the same word dominium has to stand now for ownership and now for lordship. Again, the theory urged by a [p.209] modern writer,³ that “public law” is but a department of the “law of persons,” however inapplicable to modern states, may sometimes be applied with advantage to the middle ages. Any such conception as that of “the state” hardly appears on the surface of the law; no line is drawn between the king’s public and private capacities, or it is drawn only to be condemned as treasonable. The king, it is true, is a highly privileged as well as a very wealthy person; still his rights are but private rights amplified and intensified. He has greater rights than any other lord; but it is a matter of degree; many lords have some “regalities”; the Earl of Gloucester has many, and the Earl of Chester more. Certainly it would be easy for us to exaggerate the approach made in any country, more especially in En gland, to the definite realization of this feudal ideal; but just in so far as it is realized, “public law” appears as a mere appendix to “real property law” modified in particular cases by a not very ample “law of persons.”

Our own course.Now albeit we cannot adopt either of these two methods to the neglect of the other and must consider both medieval lawyers and modern readers, we need not work without a plan. In any body of law we are likely to find certain ideas and rules that may be described as elementary. Their elementary character consists in this, that we must master them if we are to make further progress in our study; if we begin elsewhere, we are likely to find that we have begun at the wrong place. Only some experience of the particular body of law that is in question will direct us to the proper quarter; but as regards the law of the feudal time we can hardly do wrong in turning to the law of land tenure as being its most elementary part. We shall begin therefore by speaking of land tenure, but in the first instance we shall have regard to what we may call its public side; its private side we may for a while postpone, though we must not forget that this distinction between the two sides of property law is one that we make for our own convenience, not one that is imposed upon us by our authorities. From land tenure we shall pass to consider the law of personal condition. The transition will be easy, for the broadest distinction between classes of men, the distinction between freemen and men who are not free, is intricately connected with land tenure, in so much that the same word villenagium is currently [p.210]used to denote both a personal status and a mode of tenure. Then we shall turn to the law of jurisdiction, for this again we shall find to be intertwined with the land law; and along with the law of jurisdiction we must examine “the communities of the land.” Having dealt with these topics we shall, it is hoped, have said enough of political structure and public affairs, for those matters which are adequately discussed by historians of our constitution we shall avoid. Turning then to the more private branches of our law, we shall take as our chief rubrics, “Ownership and Possession,” “Contract,” “Inheritance” and “Family Law,” while our two last chapters will be devoted, the one to “Crime and Tort,” the other to “Procedure.” We are well aware that this arrangement may look grotesque to modern eyes; since, for example, it thrusts the law of persons into the middle of the law of property. Our defence must be that, after many experiments, we have planned this itinerary as that which will demand of us the least amount of repetition and anticipation, and therefore enable us to say most in the fewest words. We shall speak for the more part of the law as it stood in the period that lies between 1154 and 1272. This will not prevent us from making occasional excursions into earlier or later times when to do so seems advisable, nor from looking now and again at foreign countries; but with the age of Glanvill and the age of Bracton, we shall be primarily concerned. Again, we shall be primarily concerned with the evolution of legal doctrines, but shall try to illustrate by real examples some of the political and economic causes and effects of those rules that are under our examination. We have not to write a practical hand-book of medieval law, nor, on the other hand, have we to describe the whole of medieval life.—But an abstract discourse about method is seldom very profitable. Therefore, without more ado, we turn to the law of land tenure and begin with its fundamental dogma.

§ 1. Tenure in General

Derivative and dependent tenure.Every acre of English soil and every proprietary right therein have been brought within the compass of a single formula, which may be expressed thus:— Z tenet terram illam de . . . domino Rege. The king himself holds land which is in every sense his own; no one else has [p.211] any proprietary right in it; but if we leave out of account this royal demesne, then every acre of land is “held of” the king. The person whom we may call its owner, the person who has the right to use and abuse the land, to cultivate it or leave it uncultivated, to keep all others off it, holds the land of the king either immediately or mediately. In the simplest case he holds it immediately of the king; only the king and he have rights in it. But it well may happen that between him and the king there