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

may without the king’s licence alienate the greater part of his land so that the residue is not sufficient to do the service, “but this is not wont to be understood of members or parcels of the said lands.” It adds that the king has been accustomed to set to rent (arrentare) serjeanties that have been alienated.⁴⁰⁸ In 1290 a petitioner says that the king has a prerogative that those who hold of him in chief cannot give or alienate their lands without his licence; certainly they cannot alienate all that they so hold.⁴⁰⁹ Britton states that earls, barons, knights and serjeants who hold of the king in chief cannot without his licence alienate their fees, but the king may eject the purchasers, no matter how ancient the alienation, since time does not run against the king.⁴¹⁰ Fleta states broadly that no tenements holden of the king can be given without his assent.⁴¹¹ This becomes the law of [p.317] after times. Before the end of Edward’s reign both theory and practice draw a marked distinction between the king and other lords, and the king is making a considerable revenue out of licences to alienate and fines for alienations effected without licence.⁴¹²

Growth of the prerogative right.(7) The growth of the royal right may be traced also in the articles delivered to the itinerant justices. Already in Richard’s reign they are to inquire “of the king’s serjeanties, who has them, and through whom, and how much, and what they are worth.”⁴¹³ A similar inquiry is found among the articles of Henry III.’s reign; but, though there were divers other inquiries about royal rights, wardships, escheats and the like, there seems to have been none as yet into alienations of lands not holden by serjeanty.⁴¹⁴ But in or about 1254 a special commission was issued,⁴¹⁵ which was a forerunner of the more famous Quo Waranto inquiry of Edward I.’s reign, and among the articles, besides that about serjeanties, there seems to have been one “of knights, freeholders, men of religion or others, holding land on the king’s demesne by gift or sale of the sokemen or by provision of the warden or bailiffs,” and another “of men of religion who have entered the king’s fee so that the king loses wards, reliefs and tallage.”⁴¹⁶ The right asserted is growing more ample; and two years later the king issued the decisive writ. And so the inquiry becomes more extensive. In 1274 it runs thus:—“of the fees of the king and of his tenants, who now holds of him in chief, and how many fees each holds, and what fees were wont to be holden of the king in chief but now are held through a mesne lord (per medium), and what mesne lord, and when they were alienated, and how and by whom.”⁴¹⁷ Thenceforth this is one of the usual articles of the eyre, and as such it is given by Fleta and Britton;⁴¹⁸ it formed one of the Nova Capitula which were distinguished from the more ancient articles.

[p.318]Quia emptores. (8) The famous statute of 1290, the Quia Emptores Terrarum,⁴¹⁹ lies outside our limits, but a word must be said of it. It declared that every freeman might sell his tenement or any part of it, but so that the feoffee should hold of the same lord and by the same services, of whom and by which the feoffor held. In case only a part was sold, the services were to be apportioned between the part sold and the part retained according to their quantities; this apportionment was binding on the lord. The statute is a compromise; the great lords had to concede to their tenants a full liberty of alienation by way of substitution—substitution even of many tenants for one tenant—and thus incur a danger of losing their services by the process of apportionment; on the other hand, subinfeudation with its consequent depreciation of escheats, wardships and marriages was stopped. Nothing was said about the king’s rights and no one seems to have imagined that the tenants in chief of the crown were set free to alienate without royal licence; on the contrary, it is just at the moment when all other tenants are gaining perfect freedom, that the king’s claim to restrain any and every alienation by his tenants in chief attains its full amplitude.⁴²⁰

Disputed origin of the prerogative right.(9) What was the legal basis of this prerogative right? Already in the middle of the fourteenth century the lawyers had no certain answer for this question. The writ of 1256 they seem to have forgotten or but vaguely remembered and incorrectly dated; also their speculations are obscured and vitiated by the belief that the Praerogativa Regis was a statute. Already in Edward II.’s day it was clear that the royal claims were too extensive to be covered by the clause in the Charter of 1217. In 1325 complaint was made in parliament that the rule applicable to tenants in chief of the crown was being extended to tenants who held of honours which had fallen into the king’s hands; the king acknowledged the distinction; as lord of an honour he had only such rights as were given to all lords by the Charter.⁴²¹ In 1327 a statute was required to settle that, on an alienation without licence, the king was entitled only to a reasonable fine and not to a forfeiture of the land.⁴²² In 1341 it was suggested [p.319] in court that before the thirtieth year of Henry III. a tenant in chief might alienate without licence.⁴²³ In 1346 it was asserted and denied by pleaders that before the twentieth year of Henry III. a tenant in chief of the crown could alienate like any other tenant. The reporter apparently has his doubts and tells us to consider the date of the Praerogativa Regis.⁴²⁴ In 1352 the question was discussed whether in Henry III.’s reign the tenant in chief could subinfeudate without licence, and apparently the decision was to the effect that he could.⁴²⁵ In 1355 the lawyers are once more debating whether something happened in the twentieth year of Henry III. to prevent the tenant in chief from subinfeudating.⁴²⁶ Why do they single out the twentieth or thirtieth year (1235–36, 1245–46) of Henry III. as important? To say with Coke⁴²⁷ that in the twentieth (or rather in the following) year Magna Carta was confirmed, is not satisfactory; the same might be said of so many years, and the Magna Carta of the lawyers’ statute books was the charter of 9 Henry III. (1225), confirmed by Edward I. To say that they referred the Praerogativa Regis to the twentieth or thirtieth year of Henry seems impossible, since that enigmatical document mentions King Edward. Probably they were thinking of the writ of the fortieth year (1256). The discussion, however, was taken up in parliament, and there the king’s right was treated as the outcome of the Praerogativa Regis, and was said to have had its beginning in the reign of King Edward I.⁴²⁸ A declaration of the law was demanded; but the king desired further information. The question was of practical importance, for it came to this:—Could the king attack a possessor of land on the ground of an alienation made without licence in the days of King Henry—or, more generally, was there any limit of time that could be set to this prerogative right? In 1360 a statute confirmed all subinfeudations made by the tenants in chief under Henry III. and earlier kings.⁴²⁹ As we can [p.320] hardly believe that Edward III. gave up any right to which he considered himself justly entitled, we may infer that the result of repeated discussions in the courts and in parliament was to date the change in the law at the accession of Edward I. in 1272, about sixteen years after what we may now regard as the decisive ordinance.⁴³⁰

Summary as to law after the date of the Charter.On the whole then, we may be inclined to accept, with some modification, Coke’s theory of this episode. We may believe that the only restraint on the alienation of tenements holden of mesne lords that existed after the year 1217 was the somewhat vague restraint imposed or defined by the charter of that year; that, apart from this, the tenant might alienate the whole or any part of the land by way of subinfeudation, and the whole, though perhaps not a part of it, by way of substitution; that the king’s prerogative right gradually grew out of the right allowed to all lords by the charter, though it exceeded the words of that compact; that it was first asserted in all its breadth in the writ or ordinance of 1256, and may not have been stringently enforced until the accession of Edward I.⁴³¹ But as to an earlier period, there is much to be said on the other side; there are the once fashionable arguments drawn from “the learning of feuds,” while more solid arguments may be derived from English and Norman deeds.

Older law.As regards “the original constitution of feuds”