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

(at least in some cases) by seizing the land itself. But A and B on the occasion of the feoffment, though they cannot destroy the king’s right or free the land from the military service, may none the less, as between themselves, settle the incidence of that service: A may agree that he will do it, or the bargain may be that B is to do it, besides paying his money rent to A. The terminology of Bracton’s day and of yet earlier times neatly expresses the distinction between the service which the tenant owes to his immediate lord by reason of the bargain which exists between them, and the service which was incumbent on the tenement whilst it was in the lord’s hand.Intrinsec and forinsec service. The former is intrinsec service, the latter forinsec service; the former is the service which is created by, which (as it were) arises within, the bargain between the two persons, A and B, whose rights and duties we are discussing; the latter arises outside that bargain, is “foreign” to that bargain; nothing that the bargainers do will shift it from the land, though, as between themselves, they can determine its incidence. Suppose that A has undertaken to discharge this burden, then if the king attacks the land in B’ s hand, B will have a remedy against A; there is a special form of action by which such remedy is sought, the action of mesne (breve de medio), very common in the thirteenth century; A who is mesne (medius) between the king and B is bound to “acquit” B of this “forinsec service,” to hold him harmless against the king’s demands.¹⁶ And then, [p.217] if B enfeoffs C, the problem will reappear in a more complicated shape; some new service will perhaps be created; for instance C, who is a parson, is to pray for the soul of B’ s ancestors; but there are two other services incumbent on the land, the rent that B owes to A, the military service that A owes to the king, and in one way or another those services must be provided for. As between themselves, B and C can settle this matter by the terms of their bargain, but without prejudice to the rights of A, and of the king. It is no impossibility that Edward should hold in villeinage of Ralph, who holds in free socage of the Prior of Barnwell, who holds in frankalmoin of Earl Alan, who holds by knight’s service of the king.¹⁷ Just as at the present day one and the same acre of land may be leasehold, copy-hold and freehold—for there is no land without a freeholder—so in the past one and the same acre might be holden by many different tenures. It owed many and manifold services, the incidence of which, as between its various lords and tenants, had been settled by complicated bargaining.¹⁸

[p.218]Classification of tenures. Little more could at this moment be said of tenure in general—an abstraction of a very high order. Efforts, however, had been made to classify the tenures, to bring the infinite modes of service under a few heads, and before the end of the twelfth century the great outlines which were to endure for long ages had been drawn, though neither in Glanvill, nor even in Bracton, do we find just that scheme of tenures which became final and classical. In particular, “fee farm” and “bur-gage” threaten to be coordinate with, not subordinate to, “free socage”; “tenure by barony” is spoken of as something different from “tenure by knight’s service”; and in the north there are such tenures as “thegnage” and “drengage” which are giving the lawyers a great deal of trouble. Still, subject to some explanations which can be given hereafter, we may say that in Bracton’s day tenures are classified thus:—they are either free or not free; the free tenures are (1) frankalmoin, (2) military service, (3) serjeanty, (4) free socage. In this order we will speak of them.¹⁹

§ 2. Frankalmoin

Frankalmoin.At the beginning of the thirteenth century an ever-increasing quantity of land was held by ecclesiastics, regular and secular, in right of their churches by a tenure commonly known as frankalmoin, free alms, libera elemosina. The service implied by this tenure was in the first place spiritual, as opposed to secular service, and in the second place it was an indefinite service. Such at least was the doctrine of later days.²⁰ We may take the second characteristic first. [p.219] At all events in later days,²¹ if land was given to a churchman and there was a stipulation for some definite service albeit of a spiritual kind (for example a stipulation that the donee should sing a mass once a year or should distribute a certain sum of money among the poor), the tenure thus created was called, not frankalmoin, but tenure by divine service; the tenant might perhaps be compelled to swear fealty to his lord, and the performance of the service might be exacted by distress or by action in the king’s courts.²² On the other hand, if the tenant held in frankalmoin, that is, if the terms of the gift (as was often the case) said nothing of service or merely stipulated in a general way for the donee’s prayers, then no fealty was due; and only by ecclesiastical censures could the tenant be compelled to perform those good offices for the donor’s soul that he had impliedly or expressly undertaken. Perhaps this distinction was admitted during the later years of the period with which we are now dealing; but we shall hereafter see that in this region of law there was a severe struggle between the temporal and the ecclesiastical courts, and very possibly an attempt on the part of the former to enforce any kind of service that could be called spiritual would have been resented. The question is of no great importance, because stipulations for definite spiritual services were rare when compared with gifts in frankalmoin.²³

Meaning of “alms.”Here, as in France, the word elemosina became a technical word, but it was not such originally. At first it would express rather the motive of the gift than a mode of tenure that the gift creates. And [p.220] so in Domesday Book it is used in various senses and contexts. In some cases a gift has been made by the king in elemosina, but the donee is to all appearance a layman; in one case he is blind, in another maimed; he holds by way of charity, and perhaps his tenure is precarious. To hold land “in charity” might well mean to hold during the giver’s pleasure, and it may be for this reason that the charters of a later day are careful to state that the gift has been made, not merely in alms, but “in perpetual alms.”²⁴ Then, again, in some parts of the country it is frequently noted that the parish priest has a few acres in elemosina; in one case we learn that the neighbours gave the church thirty acres in alms.²⁵ There are, however, other cases in which the term seems to bear a more technical sense: some religious house, English or French, holds a considerable quantity of land in alms; we can hardly doubt that it enjoys a certain immunity from the ordinary burdens incumbent on landholders in general, including among such landholders the less favoured churches.²⁶ And so again in the early charters the word seems to be gradually becoming a word of art; sometimes we miss it where we should expect to find it, and instead get some other phrase capable of expressing a complete freedom from secular burdens.²⁷ In the twelfth century, the century of new monastic orders, of lavish endowments, [p.221] of ecclesiastical law, the gift in free, pure, and perpetual alms has a well-known meaning.²⁸

Spiritual service.The notion that the tenant in frankalmoin holds his land by a service done to his lord seems to grow more definite in course of time as the general theory of tenure hardens and the church fails in its endeavour to assert a jurisdiction over disputes relating to land that has been given to God. The tenure thus becomes one among many tenures, and must conform to the general rule that tenure implies service. Still this notion was very old.²⁹ In charters of the twelfth century it is common to find the good of the donor’s soul and the souls of his kinsfolk, or of his lord, or of the king, mentioned as the motive for the gift: the land is bestowed pro anima mea, pro salute animae meae. Sometimes the prayers of the donees are distinctly required, and occasionally they are definitely treated as services done in return for the land:³⁰ thus, for example, the donor obliges himself to warrant the gift “in consideration of the said service of prayers.”³¹ Not unfrequently, especially in the older charters, the [p.222]donor