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

frankalmoin, a denial which was justified by the statement that they had other remedies for the recovery of their lands. If a bishop or an abbot thought himself entitled to lands which were [p.227] with-holden from him, he might use the ordinary remedies competent to laymen, he might have recourse to a writ of right. But one class of tenants in frankalmoin was debarred from this remedy, namely, the rectors of parish churches. Bracton explains the matter thus:— When land is given to a religious house, though it is in the first place given to God and the church, it is given in the second place to the abbot and monks and their successors, or to the dean and canons and their successors; so also land may be given to a bishop and his successors. If then a bishop or an abbot has occasion to sue for the land, he can plead that one of his predecessors was seised of it, just as a lay claimant might rely on the seisin of his ancestor. But with the parish parson it is not so; we do not make gifts to a parson and his successors; we make them to the church, e.g. “to God and the church of St. Mary of Dale.”⁵¹ True, that if the parson is ejected from possession, he may have an assize of novel disseisin, for he himself has been seised of a free tenement; but a proprietary (as opposed to possessory) action he cannot bring. He can have no writ of right, for the land has not been given to a parson and his successors, it has been given to the church; he cannot therefore plead that his predecessor was seised and that on his predecessor’s death the right of ownership passed to him; thus the assize Utrum is his only remedy of a proprietary kind.⁵²

      The parson and his land.In another context it might be interesting to consider the meaning of this curious argument; it belongs to the nascent law about “corporations aggregate” and “corporations sole.” The members of a religious house can already be regarded as constituting an artificial person; the bishop also is regarded as bearing the persona of his predecessors; the vast temporal possessions of the bishops must have necessitated the formation of some such idea at an early time. But to the parish parson that idea has not yet been applied. The theory is that the parish church itself is the landowner and [p.228] that each successive parson (persona ecclesiae) is the guardian and fleeting representative of this invisible and immortal being.⁵³ It has been difficult to find a “subject” who will bear the ownership of the lands appropriated to parish churches, for according to a view which is but slowly being discarded by the laity, the landowner who builds a church owns that church and any land that he may have devoted to the use of its parson.⁵⁴ However, our present point must be that legal argument takes this form—(1) No one can use the assize Utrum who has the ordinary proprietary remedies for the recovery of land; (2) All or almost all the tenants in frankalmoin, except the rectors of parish churches, have these ordinary remedies; (3) The assize Utrum is essentially the parson’s remedy; it is singulare beneficium, introduced in favour of parsons.⁵⁵ This argument would naturally involve a denial that the assize could be brought by the layman against the parson. According to the clear words of the Constitutions of Clarendon, it was a procedure that was to be employed as well when the claimant was a layman as when he was a clerk. But soon the doctrine of the courts began to fluctuate. Martin Pateshull at one time allowed the layman this action; then he changed his opinion, because the layman had other remedies; Bracton was for retracing this step, because trial by battle and the troublesome grand assize might thus be avoided.⁵⁶ One curious relic of the original meaning of this writ remained until 1285, when the Second Statute of Westminster gave an action to decide whether a piece of land was the elemosina of one or of another church.⁵⁷ The assize had originally been a means of deciding disputes between clerks and laymen, or rather of sending such disputes to the competent courts temporal or spiritual, and the Constitutions of Clarendon contain a plain admission that if both parties agree that the land is elemosina, any dispute between them is no concern of the lay courts.

Meaning of frankalmoin in the thirteenth century.We have been speaking of the formal side of a legal change, but must not allow this to conceal the grave importance of the matters that were at stake. The argument that none but parochial rectors have need of the Utrum, and the conversion of the Utrum from a [p.229] preliminary procedure settling the competence of courts, into a proprietary action deciding, and deciding finally, a question of title to land, involve the assertion that all tenants in frankalmoin (except such rectors) can sue and be sued and ought to sue and be sued for lands in the temporal courts by the ordinary actions. And this, we may add, involves the assertion that they ought not to sue or be sued elsewhere. The ecclesiastical courts are not to meddle in any way with the title to land albeit held in frankalmoin. To prevent their so doing, writs are in common use prohibiting both litigants and ecclesiastical judges from touching “lay fee” (laicum feodum) in the courts Christian; and in Bracton’s day it is firmly established that for this purpose land may be lay fee though it is held in free, pure, and perpetual alms.⁵⁸ The interference of the spiritual courts with land has been hemmed within the narrowest limits. The contrast to “lay fee” is no longer (as in the Constitutions of Clarendon) elemosina, but consecrated soil, the sites of churches and monasteries and their churchyards, to which, according to Bracton, may be added lands given to churches at the time of their dedication.⁵⁹ The royal court is zealous in maintaining its jurisdiction; the plea rolls are covered with prohibitions directed against ecclesiastical judges;⁶⁰ and it is held that this is a matter affecting the king’s crown and dignity—no contract, no oath to submit to the courts Christian, will stay the issue of a writ.⁶¹ But the very frequency of these prohibitions tells us that to a great part of the nation they were distasteful. As a matter of fact, a glance at any monastic annals [p.230] of the twelfth century is likely to show us that the ecclesiastical tribunals, even the Roman curia, were constantly busy with the title to English lands, especially when both parties to the litigation were ecclesiastics. Just when Bracton was writing, Richard Marsh at the instance of Robert Grosseteste was formulating the claims of the clergy:—“He who does any injury to the frankalmoin of the church, which therefore is consecrated to God, commits sacrilege; for that it is res sacra, being dedicated to God, exempt from secular power, subject to the ecclesiastical forum, and therefore to be protected by the laws of the church.”⁶² It is with such words as these in our minds that we ought to contemplate the history of frankalmoin. A gift in free and pure alms to God and his saints has meant not merely, perhaps not principally, that the land is to owe no rent, no military service to the donor, but also and in the first place that it is to be subject only to the laws and courts of the church.⁶³

§ 3. Knight’s Service

Military tenure.We now turn to military tenure, and in the first place should warn ourselves not to expect an easy task. In some of our modern books military tenure has a definiteness and a stability which it never had elsewhere. An army is settled on the land, is rooted in the land. The grades in “the service” correspond to, and indeed are, the grades of landholdership; the supreme landlord is commander-in-chief; each of his immediate tenants is the general of an army corps; the regiments, squadrons, companies, answer to honours or manors or knight’s fees. All is accurately defined; each man knows his place, knows how many days he must fight and with what arms. This “feudal system” is the military system of England from the Norman Conquest onwards throughout the middle ages; by means of it our land is defended and our victories are won in Wales and in Ireland, in Scotland and in France.—When however we look at the facts, all this definiteness, all this stability, vanish. We see growth and decay: we see decay beginning before growth is at an end. Before there is much law about military tenure it has almost ceased to [p.231] be military in any real sense. We must have regard to dates. Every one knows that the military tenure of Charles I.’s reign was very different from the military tenure of Edward I.’s; but this again was very different from the military tenure of Henry I.’s or even of Henry II.’s reign.

Growth and decay of military tenure.Soon after the Conquest a process begins whereby the duty of service in the army becomes rooted in the tenure of land. This goes on