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

tenant’s life; the heirs male of his body, if competent to perform the lord’s service, acquired first a claim, then a right to succeed him; female heirs, collateral heirs, were slowly admitted; even an infant heir has a claim to succeed, a claim to succeed hereafter when he shall be able to serve the lord; meanwhile the lord will hold the land and train the heir. As to female heirs, if they are to be admitted at all, it is certain that they must not marry without their lord’s consent. Gradually tenants at will are making themselves absolute owners. The English and Norman law of the twelfth century represent a particular stage in this process. In the duchy, in the island kingdom, under pressure of strong government, customs have crystallized at an early time, while the financial necessities of the king, the wealth of his subjects, the early development of commercial ideas, give to the law its most repulsive features:—if any one has a right in England, that right must be a saleable commodity. When French and German law become definite in the thirteenth century they represent a later stage in the transformation of the beneficium; yet further encroachments have been made upon the lord’s rights, though of their once wider compass there are many memorials. The lord has a certain influence on the choice of the heir’s guardian; he confers the fief upon the guardian and sees that his own rights are not thereby impaired; if no kinsman is forthcoming, then he keeps the fief in his own hands; he has also a word to say about the marriage of his female tenants. These French and German phenomena find their best explanation in the law of England and Normandy.³⁷³

      [p.309]The precarious beneficium. How far this hypothetical history can be verified in the scanty annals of the Norman duchy is a question about which we dare say no more than has been said above.³⁷⁴ There seems however to be just enough evidence to show that the Conqueror both in Normandy and in England expected that he would be consulted before any of his female tenants in chief—he had but few—took to herself a husband, and, as already remarked, the inheritance of great fiefs, at least where an office was bound up with the land, was not altogether beyond his control.³⁷⁵ There were cases in his own family which might support such a claim; had not Richard the Fearless been in ward to his lord King Louis: had not William himself been claimed by King Henry? Men said so.³⁷⁶ If the kings of the French had been compelled to abandon all hopes of contesting the heritability of the great fiefs, they had yielded slowly and reluctantly, and perhaps had hardly yet brought themselves to acknowledge the full import of the unpleasant facts.³⁷⁷ The king of the English was to be not less of a king than the king of the French, and rights of wardship and marriage were necessary to him if he was to keep any hold upon his feudatories. The use or abuse of such rights for merely fiscal purposes may begin at a later time; but there the rights were. As to the mesne lords, they seem to have taken the first opportunity that occurred of asserting similar rights; in the reign of Rufus the Abbot of Abingdon was already claiming the wardship of an infant tenant.³⁷⁸ On the whole it seems to us that the old is the true story, and that the rights of wardship and marriage are, if we [p.310] look at Europe as a whole, the outcome of a process which is benefiting the feudatory at the expense of his lord, though it may also be reducing to the level of feudatories men whose predecessors had no landlords above them. Unfortunately in England feudalism itself becomes commercial.

§ 9. Restraints on Alienation

Historical theories about the power of alienation.In the middle of the thirteenth century the tenant enjoyed a large power of disposing of his tenement by act inter vivos, though this was subject to some restraints in favour of his lord. About the history of these restraints different opinions have been held. The old English tradition, represented by Coke, regarded it as a process by which limits were gradually set to ancient liberty.³⁷⁹ On the other hand, the cosmopolitan “learning of feuds,” which Blackstone made popular, assumed the inalienability of the fief as a starting point:—gradually the powers of the tenant grew at the expense of the lord.³⁸⁰ Of late years a renewed attention to the English authorities has occasioned a reaction in favour of Coke’s doctrine.³⁸¹ The evidence deserves a patient examination, the result of which may be that we shall see some truth in both of the rival opinions, and come to the conclusion that the controversy has been chiefly occasioned by an attempt, common to all parties, to make the law of the Norman reigns more definite than really it was.

Modes of alienation.Some distinctions must first be drawn. The tenant may desire to alienate the whole, or only some part of the tenement, by substituting for himself some new tenant who will hold the tenement, or the part so alienated, of his, the alienator’s, lord; or again, he may desire to add a new rung to the bottom of the scale of tenure, to have a tenant who will hold the whole or part of the land of him, and in this case the services for which he stipulates may be different from those by which he himself holds of his lord;—we have to contrast “substitution” and “subinfeudation.”³⁸² Now each of these [p.311] two processes may harm the lord, but the harm done by the one will, to a lawyer’s eye, be different from that done by the other. First, however, we have to notice that nothing that the tenant can do without his lord’s concurrence will remove from the land the burden of that service which is due to his lord from him and from it. The tenement itself owes the service; the “reality,” if we may so speak, of the burden can be brought home by means of distress to any one into whose hands the land may come. But though this be so, an alienation of any kind may make against the lord’s interest. If a new is substituted for an old tenant, a poor may take the place of a rich, a dishonest that of an honest man, a foe that of a friend, and the solemn bond of homage will be feeble if the vassal has a free power of putting another man in his room. If the substitution affects part only of the tenement, the lord may suffer in another way, and it is hardly to be supposed that he can be bound by an apportionment of the service effected without his concurrence, so that instead of being able to look to one man and six hides for his scutage or rent, he can be compelled to look to one man and four hides for two-thirds of it, to another man and two hides for the residue.³⁸³ The harm done by subinfeudation is of a different kind. There will still be the old tenant liable as before; on his death the lord will get a relief or possibly a wardship and marriage, on his death without heirs, an escheat. These rights will not be destroyed by the subinfeudation, but their value may be seriously lessened. Suppose that A enfeoffed B to hold by knight’s service, and that B enfeoffed C to hold at a rent of a pound of pepper; B dies leaving an heir within age; A is entitled to a wardship; but it will be worth very little: instead of being entitled to enjoy the land itself until the heir is of age, he will get a few annual pounds of pepper. And so in case of an escheat, instead of enjoying the land for ever he may have but a trifling rent.³⁸⁴ Obviously the case is at its worst when [p.312] the tenant makes a gift in frankalmoin; a wardship will now be of no value at all; an escheat will give but a nominal seignory over a corporation which pays no rent, which never dies, nor marries, nor commits felony. Still, it is plausible to say with Bracton, that the lord is not injured; his rights remain what they were, though their value is diminished; he suffers damnum, but there is no iniuria.³⁸⁵

Preliminary distinctions.Also in our investigation we must keep our eyes open to differences between the various tenures. As just said, a gift in frankalmoin, though a very common, is yet an extreme case; it reduces the value of the feudal casualties to nothing. Tenure by serjeanty again may require special treatment, for is a servant to alienate the fund which should sustain him in his lord’s service? Lastly, though pure feudal theory can draw no distinction between the king and other lords, still we have already seen that the English king has very exceptional rights within the feudal sphere. Even if no exceptional rules were applied to him, still his position would be unique. Too often in discussions of questions about feudal law we are wont to speak of lords and tenants as though they were two different classes of persons with conflicting interests. Therefore it is necessary to remember that the king was the only person who was always lord and never tenant; that his greatest feudatories had one interest as lords, another as tenants; that the baron, who