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

Still we find the latter at an early date, if not in charters, at least in fines levied before the king’s court. Not unfrequently in John’s reign one party to the transaction grants a tenement to the other party to hold “of the [p.326] chief lords of the fee.”⁴⁴⁵ It is not always possible for us to discover the real meaning of such a transaction, as we cannot always tell whether the fine is the settlement of a genuine dispute, or a mere piece of conveyancing machinery; but it seems clear that fines were levied with little, if any, regard for the lord’s interest, and that their effect often was to give him a new immediate tenant of the whole, or even (for so it would seem) of part only of the tenement. As regards modes of conveyance less solemn than a fine, had it not been for Bracton’s distinct assertion, we should probably have come to the opinion that a new tenant, even of the whole tenement, could not be forced upon an unwilling lord. Whether we look to collections of charters or to collections of pleadings, we find the lord’s consent frequently mentioned;⁴⁴⁶ indeed sometimes the transaction takes the form of a surrender by the old tenant to the lord and a feoffment by the lord of the new tenant. When about the middle of the twelfth century Reginald Puer sells land to Whitby Abbey, he resigns all his right into the hand of Roger Mowbray to the use (ad opus) of the monks, to whom Roger gives it, putting them in seisin by the same rod (lignum) by which the resignation had been made.⁴⁴⁷ When Alexander Buddicombe sells that fifth part of a knight’s fee which he holds of Hawise Gurney to Thomas FitzWilliam, he “demises himself” in Hawise’s court and renders the land to her by the branch of a tree, whereupon she gives seisin to Thomas by the same branch.⁴⁴⁸ Still there are Bracton’s plain words:—albeit the tenant has done homage (and this of course makes the case extreme) he may put a new tenant in his place, and the lord must accept him, will he, nill he.⁴⁴⁹

General summary as to alienation by the tenant.To sum up the whole of a lengthy argument, the sound conclusion seems to be that, in treating the matter as one of purely English history, we must start not from the absolute inalienability of “the fief,” nor from the absolute alienability of “the fee simple,” but from something much less satisfactory, an indeterminate right of the lord to prevent alienations which would seriously impair his interests, a right which might remain in abeyance so long as there [p.327] was plenty of scope for subinfeudation and the liberty of endowing churches was not abused, a right on which the king’s court was seldom if ever called upon to pronounce, since the lord could enforce it in his own court, a right which was at length defined, though in loose terms, by the charter of 1217. But very probably the king’s legal position was from the first exceptional, and it certainly became exceptional in the course of the thirteenth century; with no text of law to rely upon but the charter, he succeeded, under stress of pecuniary troubles, in gradually establishing a right which could not be justified by the terms of that instrument.

Gifts made by a lord with the consent of his court.That we may be right in taking as the starting point of our law principles so vague as those just stated, may appear from this, that if we often find a lord confirming his tenants’ gifts, we sometimes find a lord consulting or professing to consult his tenants before he makes a feoffment. When Aubrey de Vere gives land to the Abbey of Abingdon, “all his knights” are said to join in the grant;⁴⁵⁰ Earl Hugh of Chester speaks with “his barons” before he makes a similar gift;⁴⁵¹ Roger de Merlay when he endows Newminster does so with the consent of “his men”;⁴⁵² “the knights” and the “good men” of the Abbot of Abingdon give their consent to an exchange which he is making with one of his tenants,⁴⁵³ and so the Abbot of Ramsey by the counsel of his barons retains the homage of Robert Foliot at the cost of two thousand eels a year.⁴⁵⁴ Each feudal group strives to be a little state; its ruler and his subjects alike have an interest in all that concerns its territory. Still this notion, that the lord ought to hold a parliament before he makes a feoffment, never hardens into law.

Alienation of a seignory.But now another question arises. Can a lord dispose of his rights over a tenant and his tenement without that tenant’s consent? We will suppose that A has enfeoffed B who has enfeoffed C, and ask whether B can, without C’ s concurrence, either put X in his (B’ s) place, so that C will hold of X who will hold of A, or place X between himself and C, so that C will hold of X, who will hold of B, who will hold of A. Now here we have to consider two different difficulties. First there is what we may call the feudal difficulty, that [p.328] of giving C a new lord, of holding him bound to serve X when he has contracted to serve B. Secondly there is a difficulty that is quite unconnected with the nature of the feudal bond but may be thus stated:—Every gift, every transfer of rights, involves a transfer of seisin, of possession. When a tenant is to be enfeoffed as a tenant in demesne, then in order to complete the feoffment it is absolutely necessary that the feoffor should deliver possession of the land to the feoffee, and this act is performed on the land; the feoffor solemnly puts the feoffee in seisin and then quits the land. But there can be no such delivery of possession in the case that is under our notice; C is tenant in demesne; it is not intended that X shall become tenant in demesne; B and X have no business to go onto the land and disturb C in his possession; what is to be given to X is not the right to take the fruits of the land but the right to C’ s services. We cannot in this place discuss this notion that a gift or a transfer of rights involves a transfer of possession; but it is deeply engrained in the law of the thirteenth century. It would seem then, that the only mode in which B can complete his gift to X, is by persuading or compelling C to recognize X as his lord. When such a recognition has taken place, then we may say that X possesses the object of the transfer; he is seised of C’ s services, he is also seised of the land “in service” (seisitus in servitio). The two difficulties then, though in a given case they may conspire, are essentially different; the difference is brought out by the question: Has B any legal process for compelling C to accept X as his lord?

Law of attornment.According to Bracton, we must distinguish. If C has done homage to B, then C may, for good cause, object to having his homage made over to X. He may object that X is his enemy—a light enmity says Bracton is not a sufficient cause—or that X is too poor to fulfil the duty of warranty, or again that homage is indivisible, and that he cannot be bound to do homage to X for part of the tenement, while he still holds the other part of B; but unless such cause is shown, C’ s homage can be transferred to X. As regards the service due from the tenement, as distinct from homage, this can always be transferred, even against the tenant’s will; the court has a process for compelling the tenant to acknowledge that he holds of the new lord; [p.329] it has a process for “attorning,” i.e. turning over, the tenant to the new lord.⁴⁵⁵ He gives a case from 1223:— X demanded homage from C, saying that B had attorned C’ s homage and service to him, X; thereupon C said that he held nothing of X and that he would not depart from B who was his lord; then B was summoned and stated that he had made the gift to X; but C still objected that he held two tenements of B by a single homage and service, only one of which tenements had been given to X, and that he would not divide his homage; whereupon the court adjudged that X should have seisin of C’ s service, but that C could not be compelled to do homage to X. Service, says Bracton, can always, but homage cannot always be attorned.⁴⁵⁶

      Objections to attornment.It is somewhat curious, as noticed above, that Bracton should allow the tenant to object to his homage being transferred, for he does not allow, at least expressly, any similar objection on the part of a lord whose tenant desires to put a new tenant in his place. Possibly the necessity for an attornment, which really rested on quite other grounds, kept alive one side of an ancient rule while the other side had withered.