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

he stipulates that, should he ever retire from the world, he shall be admitted to the favoured monastery; sometimes he binds himself to choose no other place of retirement; often it is said that the donees receive him into all the benefits of their prayers.³³

Gifts to God and the saints.We have spoken as though gifts in frankalmoin were made to men; but, according to the usual tenour of their terms, they were made to God. As Bracton says, they were made primo et principaliter to God, and only secundario to the canons or monks or parsons.³⁴ A gift, for example, to Ramsey Abbey would take the form of a gift “to God and St. Benet of Ramsey and the Abbot Walter and the monks of St. Benet,” or simply “to God and the church of St. Benet of Ramsey,” or yet more briefly “to God and St. Benet.”³⁵ The fact that the land was given to God was made manifest by appropriate ceremonies. Often the donor laid the charter of feoffment, or some knife or other symbol of possession upon the altar of the church.³⁶ Clauses denouncing excommunication and damnation against all who should disturb the donee’s possession did not go out of use at the Norman Conquest, but may be found in charters of the twelfth century,³⁷ nor was it uncommon for a religious house to obtain a papal bull confirming gifts already made and thereafter to be made, and, whatever might be the legal effect of such instruments, [p.223] the moral effect must have been great.³⁸ We are not entitled to treat these phrases which seem to make God a landowner as of no legal value. Bracton more than once founds arguments upon them,³⁹ and they suggest that land given in frankalmoin is outside the sphere of merely human justice.

Free alms and forinsec service.In later days the feature of tenure in frankalmoin which attracts the notice of lawyers is a merely negative feature, namely, the absence of any service that can be enforced by the secular courts. But some distinctions must be drawn. The king might give land to a religious house “in free, pure, and perpetual alms,” and in that case not only would no secular service be due from the donee to the donor, but the land in the donee’s hand would owe no secular service at all. But tenure in frankalmoin is by no means necessarily a tenure in chief of the crown; indeed the quantity of land held in chief of the crown by frankalmoin was never very large. It will be understood that an ecclesiastical person might well hold lands, and hold them in right of his church, by other tenures. The ancient endowments of the bishops’ sees and of the greater and older abbeys were held by knight’s service; the bishop, the abbot, held a barony. Beside this, we constantly find religious houses taking lands in socage or in fee farm at rents and at substantial rents, and though a gift in frankalmoin might proceed from the king, it often proceeded from a mesne lord. In this case the mere gift could not render the land free from all secular service; in the donor’s hand it was burdened with such service, and so burdened it passed into the hands of the donee.⁴⁰ If the donee wished to get rid of the service altogether, he had to go to the donor’s superior lords and ultimately to the king for charters of confirmation and release. But, as between themselves, the donor and donee might arrange the incidence of this “forinsec service” as pleased them best. The words “in free, pure, and perpetual alms” seems to have implied that the tenant was to owe no secular service to his lord; but they did not necessarily imply that, as between lord [p.224] and tenant, the lord was to do the forinsec service. And so we find the matter settled in various ways by various charters of donation:— sometimes it is stipulated that the tenant is to do the forinsec service,⁴¹ sometimes the lord burdens himself with this,⁴² often nothing is said, and apparently in such case the service falls on the lord.

Pure alms.Another rule of interpretation appears, though somewhat dimly. In accordance with later books, we have spoken as though a gift in frankalmoin, in free alms, always implied that no secular service was due from the donee to the donor. But the words generally used in such gifts were “free, pure, and perpetual alms,” and in Bracton’s day much might turn on the use of the word “pure.”⁴³ Seemingly there was no contradiction between a gift in “free and perpetual alms” and the reservation of a temporal service, and many instances may be found of such gifts accompanied by such reservations. This will give us cause to believe that the exemption from secular service had not been conceived as the core of tenure in frankalmoin; and if we find, as well we may, that a donor sometimes stipulates for secular service, though he makes his gift not only in free but even in pure alms, our belief will be strengthened.⁴⁴

Free alms and ecclesiastical jurisdiction.The key to the problem is given by the Constitutions of Clarendon (1164). Freedom from secular jurisdiction rather than freedom from secular service has been the focus of frankalmoin. “If,” says the famous document, “a dispute shall arise between a clerk and a layman, or between a layman and a clerk, concerning any tenement which the clerk asserts to be elemosina and the layman asserts to be lay fee, it shall be determined by a recognition of twelve lawful men [p.225] and the judgment of the chief justiciar whether (utrum) the tenement belongs to elemosina or belongs to lay fee. And if it be found to belong to elemosina, then the plea shall go forward in the ecclesiastical court: but if it be lay fee, then in the king’s court, or, in case both litigants claim to hold of the same lord, then in the lord’s court. And in consequence of such a recognition, the person who is seised is not to lose his seisin until it has been deraigned by the plea.”⁴⁵ Let us observe how large a concession to the church the great Henry is compelled to make, even before the murder of Becket has put him in the wrong. This is all that those avitae leges, of which he talks so frequently, will give him, and he claims no more. The clergy have established this principle:—All litigation concerning land held in almoin belongs of right to the ecclesiastical courts. All that the king insists on is this: that, if there is dispute whether the land be almoin or no, this preliminary question must be decided by an assize under the eye of his justiciar. Thus the assize Utrum is established. It is a preliminary process; it will not even serve to give the claimant a possession ad interim; the possessor is to remain possessed; it decides not the title to land, but the competence of courts. Here then we find the essence of almoin as understood in the middle of the twelfth century:—the land is subject to no jurisdiction save that of the tribunals of the church. Even to maintain his royal right to decide the preliminary question of competence was no easy matter for Henry. Alexander III. freely issued rescripts which ordered his delegates to decide as between clerk and layman the title to English land, or at least the possessory right in English lands: he went further, he bade his delegates award possession even in a dispute between layman and layman, though afterwards he apologized for so doing. The avitae leges, therefore, were far from conceding all that the clergy, all that the pope demanded.⁴⁶

[p.226]The Assize Utrum. They conceded, however, more than the church could permanently keep. If as regards criminous clerks the Constitutions of Clarendon are the high-water-mark of the claims of secular justice, as regards the title to lands they are the low-water-mark. In Normandy the procedure instituted by Henry, the Breve de Feodo et Elemosina, which was the counterpart, and perhaps the model, of our own Assisa Utrum, seems to have maintained its preliminary character long after Henry’s son had forfeited the duchy: that is to say, there were cases in which it was a mere prelude to litigation in the spiritual forum.⁴⁷ In England it gradually and silently changed its whole nature; the Assisa Utrum or action Juris Utrum⁴⁸ became an ordinary proprietary action in the king’s court, an action enabling the rectors of parochial churches to claim and obtain the lands of their churches: it became “the parson’s writ of right.”⁴⁹ Between the time of Glanvill and the time of Bracton this great change was effected and the ecclesiastical tribunals suffered a severe defeat.⁵⁰

Defeat of the ecclesiastical claims.The formal side of this process seems to have consisted in a gradual