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

per biennium was invented; if the tenant allowed his services to fall into arrear for [p.334] two years, the lord might claim the land in demesne.⁴⁷⁹ There can, we think, be little doubt that this new action was borrowed immediately from the canon law and mediately from the legislation of Justinian. It is one of the very few English actions that we can trace directly to a foreign model.⁴⁸⁰

Distress.(2) The lord’s handiest remedy is that of distraining his tenant to perform the services that are in arrear. This means that, carefully observing certain rules as to when and where and what he may seize, he takes the chattels that are found upon the tenement and keeps them until the tenant either tenders the arrears or finds security to contest in a court of law the justice of the seizure. The idea of distress (districtio) is that of bringing compulsion to bear upon a person who is thereby to be forced into doing something or leaving something undone; it is not a means whereby the distrainor can satisfy the debt that is due to him. He may not appropriate the namium, the thing that he has taken, nor may he sell it; he must keep it as a gage (vadium) so that the person from whom it has been taken may be constrained to perform his duty. This right to distrain for services in arrear is in the latter half of the thirteenth century a right that is freely exercised by every landlord, and he exercises it although he has as yet taken no judicial proceedings of any kind against his tenant. Nevertheless, we may see much to make us think that this power of extra-judicial distraint is not very old. Bracton speaks as though it were still usual for a lord to obtain a judgment in his own court before he distrains a tenant into the performance of his services; and we may see that in his day some lords were still taking this course.⁴⁸¹

[p.335]Proceedings in the lord’s own court.(3) This leads us to speak of the possibility of proceedings being taken in the lord’s own court for the exaction of the rent or the expulsion of the defaulting tenant. It is possible that at one time the non-performance of services was regarded as a sufficient cause of forfeiture. Against any disseising of the tenant “without a judgment,” there had for a long time past been a strong feeling; it finds utterance in the most famous words of the Great Charter. But probably the lord who kept a court was entitled to demand of it a judgment “abjudicating” from the tenement a tenant who, after sufficient warnings, would not render his due service.⁴⁸² However, it seems that our king’s court will not sanction so strong a measure. The most that it permits the lord to do is this:—after distraining the tenant by his chattels, the lord may obtain from his seignorial tribunal a judgment authorizing him to distrain the tenant by his land. This obtained, he can seize the land into his own hand, but only by way of distress, only as a mere gage (simplex namium), and as a mode of coercing the tenant into the path of duty. He may take no fruits from the land, he may make no profit of it, he must ever be ready to give it up if the tenant will satisfy all just demands.⁴⁸³ Even this is possible only to the lord who is great enough to keep up an efficient court for his freeholders. In England the aboriginal weakness and rapid degeneration of the feudal tribunals, and the dominance of a royal court which does not love seignorial justice secure to the freeholding tenant a very tight grip on the land. At the end of Henry III.’s reign he is too well off. If he chooses to let the land “lie fresh,” to keep no distrainable chattels on it, his lord is powerless. An action must be borrowed from the canonists in order that he may be constrained to fulfil his engagements or be turned out of his tenement.⁴⁸⁴

      However, in the thirteenth century the possibility, never very [p.336] remote, that the land would escheat, was, when coupled with the power of distress, a quite sufficient manifestation of the idea that the land, though it was the tenant’s, was also the lord’s. The tenant’s interest in it might at any time expire and leave the lord’s interest subsisting.

Survey of the various tenures.We are now in a position to foresee that of the four great free tenures one is destined to grow at the expense of the rest. For a moment it might be thought that the trenchant statute of 1290, the Quia emptores terrarum, would stereotype the tenures for ever. To some extent this is true in law but only to some extent. Even after the statute a new tenure might sometimes be created. Every feoffment made by a tenant in frankalmoin in favour of a layman would create a tenure between the donee and the donor’s lord which could not be frankalmoin, since the donee was a layman, and which was reckoned a tenure in socage; thus in a perfectly regular way socage would grow at the expense of frankalmoin.⁴⁸⁵ We have seen also that in the course of the thirteenth century many of the serjeanties were deliberately commuted for less archaic tenures, in some cases by the consent of both parties, still more often against the tenant’s will: he had put himself into the wrong by alienating without the king’s licence, and the king exercised the right of “arrenting the serjeanty.”⁴⁸⁶ But we will here speak of changes less definitely made. When once it was established that the little serjeanties gave the king no prerogative wardship, “petty serjeanty” came to be regarded as but “socage in effect.”⁴⁸⁷ A similar cause gave rise to the doctrine that tenure of a mesne lord is never tenure by serjeanty;⁴⁸⁸ the rights of a mesne lord to the wardship and marriage of his tenant by serjeanty seem to have become doubtful, and to have finally [p.337] disappeared, and by this time the term socage already covered so heterogeneous a mass of tenures that it could be easily stretched yet a little further so as to include what Bracton would certainly have called serjeanties.⁴⁸⁹ Again, there can be little doubt that a very large number of military tenures became tenures in socage, and this without anyone observing the change. In Bracton’s day the test of military tenure is the liability to scutage, and, as already said, the peasant or yeoman very often had to pay it; if he had not to pay it, this was because his lord had consented to bear the burden. In Edward I.’s day scutage was becoming, under his grandson it became, obsolete. There was nothing then in actual fact to mark off the services of the yeoman who was liable to pay scutage as well as to pay rent, from those of the yeoman who was free even in law from this never collected tax. The one was theoretically a military tenant, the other was not; in the one case the lord might have claimed wardship and marriage, in the other he could not; but then we have to observe, that, if the tenant held at a full or even a substantial rent, wardship and marriage would be unprofitable rights. The lord wanted rent-paying tenants; he did not want land thrown on his hands together with a troop of girls and boys with claims for food and clothing. Thus, scutage being extinct, wardships and marriages unprofitable, mere oblivion would do the rest; many a tenure which had once been, at least in name, a military tenure would become socage. Thus socage begins to swallow up the other tenures, and preparation is already made for the day when all, or practically all, tenants will hold by the once humble tenure of the sokemanni.

§ 12. Unfree Tenure

Freehold tenure.The tenures of which we have hitherto spoken are free tenures. To free tenure is opposed villein tenure, to the free tenement the villein tenement, to the freeholder (libere tenens) the tenant in villeinage. This is the contrast suggested by the word “free”; but the terms “free tenement” and “freeholder” are becoming the centre of technical learning. We may well find that a man holds land and that [p.338] there is no taint of villeinage or unfreedom in the case, and yet that he has no freehold and is not a freeholder. These terms have begun to imply that the tenant holds heritably, or for life. Perhaps we shall be truer to history if we state this doctrine in a negative form:— these terms imply that the tenant does not hold merely at the will of another, and that he does not hold for some definite space of time: a tenant at will is not a freeholder, a tenant for years is not a freeholder. Such tenancies as these are becoming common in every zone of the social system, and they imply no servility, nothing that is inconsistent with perfect freedom. Thus, for example, King John will provide for his foreign captains by giving them lands “for their support in our service so long as we shall think fit,” and in such a case this tenancy at will by a soldier is from some points of view the