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

creating new sub-tenancies, could not forget that he himself had a lord. The conflict of interests takes place within the mind of every magnate of the realm, and the result is that the development of definite law is slow.

      

      This premised, we turn to our history, and first to that part of it which lies within legal memory; of the earlier time we shall be better able to speak when we have seen its outcome. Now the main facts of which account must be taken are as follows: [p.313]

Glanvill.(1) Glanvill nowhere says that the tenant cannot alienate his land without his lord’s consent, though, as he speaks at some length of the restraints on alienation that are set by the rights of expectant heirs, he has an excellent opportunity for saying that the rights of the lord also must be considered.³⁸⁶

The Great Charter.(2) The Great Charter of 1217 is the first document of a legislative kind that expressly mentions any restraint in favour of the lord. It says—“No free man shall henceforth give or sell so much of his land as that out of the residue he may not sufficiently do to the lord of the fee the service which pertains to that fee.”³⁸⁷ This has all the appearance of being a rule which imposes a new or defines a preexisting restraint; to read it as mitigating a pre-existing restraint would do violence to its words. Coke speaks as though its only effect was to make the excessive gift voidable by the donor’s heir;³⁸⁸ but it certainly could be avoided by the donor’s lord; this we learn both from Bracton and from a decision on which he relies.³⁸⁹

Bracton.(3) Throughout his work Bracton shows a strong leaning in favour of free alienation. As regards subinfeudation, he argues laboriously that it does no wrong, though it may do damage, to the lords.³⁹⁰ The very earnestness of his argument shows that he has to combat a strong feeling, still we must take his opinion as that of the royal court. The rule laid down by the third edition of the Charter he mentions only in a very casual way, as though it were directed chiefly, if not solely, against gifts in frankalmoin;³⁹¹ collections of charters and collections of pleas from his time seem to show that it produced little effect.³⁹² The strength of Bracton’s inclination in favour of subinfeudation may be shown by a passage in which he goes so far as to question the justice of the rule which treated service as a burden on land. He supposes that A enfeoffs B to hold by [p.314] a certain service; and that B enfeoffs C to hold the whole or part of the tenement by a less service; the rigour of the law, he says, permits A to distrain C for all the service due from B, but this is against equity.³⁹³ Then as to substitutions, he holds that even when B has done homage to A, nevertheless B may give A a new tenant by enfeoffing C to hold of A, and C will then hold of A whether A likes it or no.³⁹⁴ Bracton does not even expressly allow A to object that C is his personal enemy or too poor to do the service, which is very remarkable, since he does allow that the lord cannot substitute for himself in the bond of homage a new lord who is the enemy of the tenant, or too needy to fulfil the duties of warranty.³⁹⁵ He does not even say that the tenant cannot give a fragment of the tenement to be holden of the lord by a proportional part of the service, though we may take it that in his opinion the inequitable rigour of the law³⁹⁶ would prevent the tenant and his feoffee from making an apportionment which would bind the lord.

Legislation as to mortmain.(4) Just in Bracton’s time alienations in mortmain were beginning to cause murmurs. The charter of 1217 had struck at certain collusive practices to which the churches had been privy.³⁹⁷ In 1258 at the Oxford parliament the barons prayed remedy, that men of religion may not enter the fees of earls and barons and others without their will, whereby they lose for ever their wardships, marriages, reliefs and escheats.³⁹⁸ In 1259 the Provisions of Westminster ordained that it shall not be lawful for men of religion to enter the fee of any one without the licence of the lord of whom the land is holden.³⁹⁹ These Provisions were now law, now not law, as the barons or the king obtained the mastery. Most of them were reenacted by the Statute of Marlborough in 1267, but not the provision now in question; from which we may gather that the clergy were influential enough with the king, who was enjoying his own again, to put [p.315] off the evil day. But not for long, for in 1279 the Statute De Viris Religiosis,⁴⁰⁰ after referring to the Provisions of Westminster as though they were or had been law,⁴⁰¹ put a check upon alienations in mort-main. No religious persons were to acquire land; if they did, the land was to be forfeited to the lord, and he had a brief term given him for taking advantage of the forfeiture; if he failed to do so, the lord next above him in the feudal scale had a similar opportunity; and so on up to the king. The statute does not merely condemn gifts in frankalmoin; the religious are not to acquire more land, even though they are willing to pay a full rent for it. However, the king and the other lords, if any, whose interests were concerned could bind themselves to take no advantage of the statute, and licences to acquire land in mortmain were somewhat easily obtained.

Alienation of serjeanties.(5) From a comparatively early date we learn that serjeanties were inalienable. Already in 1198 the itinerant justices were directed to make inquest touching the king’s serjeanties.⁴⁰² In 1205 John ordered an inquest as to the serjeanties, thegnages, drengages and other services and lands of the honour of Lancaster, which honour was then in his hands; the sheriffs were to seize all such as had been alienated since the coronation of Henry II. without licence from the king or other good warrant.⁴⁰³ This claim was steadily maintained by Henry III.⁴⁰⁴ Towards the middle of his reign it was enforced with retrospective rigour; Robert Passelew was sent through England to “arrent” the alienated serjeanties, that is to say, to change the tenure from serjeanty into knight’s service or socage. One instance out of a very large number will serve to show what was done. Walter Devenish held land by the serjeanty of finding three arrows when the king should hunt on Dartmoor; he had alienated parts of the tenement to subtenants, his services were now changed into a rent of three shillings, one-third of which [p.316] was to be paid to him by his subtenants.⁴⁰⁵ That many of the king’s tenants by serjeanty had alienated parts of their tenements by way of subinfeudation is instructive: we learn that a restraint on alienation might exist in theory and yet be much disregarded in practice. Our evidence chiefly concerns serjeanties held of the king; but we may guess that other lords thought that a similar rule might be applied to their serjeants; and the serjeants of the honour of Lancaster, whose alienations John attacked, were not tenants in chief of the crown.

Special law for the king’s immediate tenants.(6) Bracton nowhere says that any special restriction is imposed on the tenants in chief of the crown; the utmost that he does is to suggest, and this not very definitely, that the Charter of 1217 has been construed favourably to the king. The tenant in chief by knight’s service of the king may not make a gift in frankalmoin, or a feoffment which reserves a less service than that due to the king.⁴⁰⁶ But just about the time when Bracton was writing Henry III. issued an important ordinance. It takes the form of a writ dated the 15th of July, in the fortieth year of the reign (1256). The king asserts that it is an intolerable invasion of royal rights that men should without his special consent enter by way of purchase or otherwise the baronies and fees that are holden of him in chief. He declares that for the future no one is to do this, and bids the sheriff seize the land upon which any one enters in contravention of this decree. This writ, however, remained unknown to our historians until it was published in 1896, and, as we shall see hereafter, even the lawyers of the fourteenth century seem to have been ignorant of its existence.⁴⁰⁷ Perhaps the king did not wish or did not dare to enforce in all cases the broad rule that he had laid down; the Barons’ War was at hand. The apocryphal Statute Praerogativa Regis, which may represent the practice of the earlier years of