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

of Hastings. Very generally the continental vassal could not substitute a new vassal for himself without his lord’s consent; but commonly he had some power of subinfeudation.⁴³² Wherever we look in the twelfth century [p.321] we see differences of practice and in some cases the law is becoming more favourable to the lords, less favourable to the tenants.⁴³³ In this instance however we have no need to look beyond England and Normandy. For the period between 1066 and 1217 we have hundreds of English charters,Anglo-Norman charters. and at first sight they seem to go the full length of proving that from the Conquest onward no tenant could alienate his land without his lord’s consent. It so happens also that in Normandy we can trace this restraint on alienation back to the time when the duke of the Normans was not yet king of the English.⁴³⁴ The chronicle of Orderic is full of gifts made to the Abbey of St. Evroul, and in case after case the chronicler is careful to tell us how the gift was confirmed by the donor’s lord or lords; in seeking confirmation the monks ascend the scale of tenure and do not stop until they reach the duke.⁴³⁵ Then, after the Conquest, they acquire lands in England; for instance, they acquire lands from some of the men of the Earl of Chester; they seek the earl’s confirmation and the king’s. The abbot journeys to England and obtains from the Conqueror a liberal charter confirming the gifts and confirmations of his barons.⁴³⁶ This is no solitary phenomenon. Every collection of monastic charters tells the same tale. No gift is considered safe until it has been confirmed by the king and all who stand between the king and the donor.⁴³⁷ Often the donor’s lord joins in the gift itself; it is made annuente domino meo, concedente domino meo; still more often he confirms it after it has been made. What is more, he sometimes confirms prospectively whatever gifts any of his men may make to the favoured monastery. For a while [p.322] we do not hear much of money being paid for such confirmations; lands are plentiful and lords are pious; but already in Henry I.’s day men are paying for confirmations,⁴³⁸ and now and again we read stories which seem to show that a lord would sometimes call in question a feoffment to which he had not consented.⁴³⁹

Discussion of the charters.But considerable care is necessary in drawing inferences from these documents. Most of the very early charters that we possess relate to gifts in frankalmoin, and, when examined, they will often appear to be confirmations and something more. In royal confirmations it is common to find words that are not merely confirmatory. Sometimes the king denounces a penalty, a forfeiture of £10, against any who shall disturb the donees; often he wills that the donees may enjoy “sake and soke” and other liberties, which, at least in his opinion, none but he can grant. Then again, words which look merely confirmatory, demand a careful criticism. For instance if B holds of A by knight’s service and enfeoffs the abbot of C in free alms, then, when A confirms the gift, we must be diligent to observe whether he reserves his right to exact the service from the land, or uses words importing that the land is to be frankalmoin, not merely as between B and the abbot, but even as regards the confirmer himself. Thus, to take a real example, when Robert Earl of Gloucester confirms a gift which one of his tenants has made to St. Peter’s Abbey, he adds “I will that the said monks hold the same [p.323] freely, quietly and honourably in frankalmoin for ever.”⁴⁴⁰ Such words, which are very commonly found, will in all likelihood debar the earl and his heirs from ever exacting any service from this land. Indeed in Bracton’s day a lord confirming a tenant’s gift had to be extremely cautious if he wished to retain the service due from the land; if B who held of A at a rent of a hundred shillings enfeoffed C at a rent of one shilling, the mere word confirmo used by A might, if unexplained, deprive him of ninety-nine shillings a year.⁴⁴¹ Again, at least in Norman documents, there is much to suggest that a subinfeudation effected without the lord’s consent was neither void nor voidable by the lord so long as the mesne seignory of the donor endured; the donee’s danger lay in this, that by the donor’s felony or want of heirs this seignory would escheat and the donor’s lord would then be able to avoid the gift.⁴⁴² Again, we must remark that in this context little stress can be laid on confirmations when the confirmer is the king, for, quite apart from all feudal theory, a royal charter was a very efficient protection against litigation. When once such a charter was produced by the person in possession, the king’s justices would stay their hands; they would proceed no further rege inconsulto.⁴⁴³ We find too that religious houses are not content with [p.324] one royal confirmation; they obtain a fresh charter from each successive king, for, be the law what it may, no prudent man will trust to the king’s respect for his ancestor’s promises. Lastly, to complete the picture, we may add that the usual practice of the monasteries was, not to apply to the king whenever they received a gift, but to wait until they had a considerable number of gifts and then get all of them confirmed by one instrument.

Conclusions as to the law of the Norman time.In the teeth however of the long series of diplomata stretching back to the Conquest, and in Normandy beyond the Conquest, some of which deal with cases in which the donee is a layman and the confirming lord is not the king, it is quite impossible for us to hold that the restriction expressed in the charter of 1217 was a new thing, or that the free alienability of “the fee simple” is the starting point of English law. We must be content with a laxer principle: with some such idea as this, that the tenant may lawfully do anything that does not seriously damage the interests of his lord. He may make reasonable gifts, but not unreasonable. The reasonableness of the gift would be a matter for the lord’s court; the tenant would be entitled to the judgment of his peers. The charter of 1217 is a fair, though a vague compromise of conflicting claims. That it should have been so favourable to the tenants as it was, may fairly surprise us, if we have regard to other countries, and to the extreme severity of our English law about reliefs, primer seisins, wardships and marriages.⁴⁴⁴ But the Norman Conquest must for a while have favoured “free trade in land.” William, when he conferred the forfeited estates of English earls and thegns on his French followers, must have known and intended that there should be some reasonable amount of subinfeudation. This was absolutely required by the new military system; the count or baron was to have knights to follow his banner, and the services of knights could only be secured by feoffments. For a long time it would be possible for the vassals to endow sub-vassals, [p.325] for the sub-vassals to endow other sub-vassals, without any loss being inflicted on the great lords or on the king. We must add to this that for a full century after the Conquest, despite occasional quarrels, the king was in close league with the church; as against his too rebellious barons he relied on the prelates, and the prelates of course desired that men should be free to make gifts to pious uses. And just when the interests of the church as an acquirer of land were beginning to come into serious conflict with the needs of the state, the function of declaring the law of England was being committed to a group of professional lawyers who for several reasons were likely to favour free alienation. Often they were ecclesiastics; always they were the king’s servants, and as such inclined to loosen the feudal bond whenever this could be done without prejudice to their master’s rights. But, besides all this, it seems clear that merely as jurists, and all considerations of political expediency apart, they were disposed to concede to every tenant the fullest possible power of dealing with his land. Just when they were deciding that the common law put no restriction on this power in favour of the lord, they were rapidly and finally destroying the restrictions which had existed in favour of the tenant’s expectant heirs. This process will come before us hereafter, but should be noticed in this context. If the English lawyers are shutting their ears to the claims of the lords, they are shutting their ears to the claims of the kindred also, and this just at a time when in Normandy and other countries the claims of the lord and the claims of the expectant heir are finding a formal recognition in the new jurisprudence. Whether we ascribe this result to the precocious maturity of our system of royal justice, or to some cause deep-seated in our national character, we must look at these two facts together:—if the English law knows no retrait féodal, it knows no retrait lignager.

Usual form of alienation.As