The roots of landowner and tenant rights in modern times rest in the feudal system imposed on England by William I. Beginning with the Coronation Charter of Henry I and culminating in the Magna Carta, signed by John and reiterated twice during the next century, the laws governing rights and privileges of landholders limited the absolute sway originally claimed by feudal overlords. Rights of due process, inheritance, and protection from excessive taxation are among the most significant which developed during this era. The importance placed on protection of these rights by the mesne lords is evidenced by the fact that more than 50 percent of the text in the Great Charter is devoted to ensuring their continuance.
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The English feudal system, from the Norman invasion in 1066 AD through the end of the Plantagenet dynasty in the fifteenth century, was a system based on the leasing of land from the owner to a holder in return for services rendered on a continuing basis.(1) Usually, but not always, this assistance was in some way related to military service. Reflecting upon the basis of this system, one might get the impression that the land owner would maintain absolute control over his property within the confines of the feudal contracts. However, a brief look at the history of the administration of real property during this time period will show that in many cases the overlords' authority was curtailed in order to protect the holder, much like the laws we have in the United States today. A short analysis of the selected time frame will also show how the laws changed from monarch to monarch in order to reflect society's, rather than the ruler's, desires. Lastly, we will see what influence the Magna Carta, or Great Charter of England, had on the governance of real property.
In 1066 AD, William Duke of Normandy enforced his claim to the English throne by defeating Harold II (Godwinson) of England at the Battle of Hastings. Along with Romanesque architecture and a love of battle, William I brought with him many Norman knights desiring landholdings of their own, and the feudal system of land management.
"The Conquest effected a social revolution in England. The lands of the Saxon aristocracy were divided up amongst the Normans, who by circa 1087 composed between 6,000 and 10,000 of the total population of one million. More important, each landowner had, in return for his land, to take an oath of allegiance to the king, and promise to provide him with mounted, armoured knights when required. The introduction of this so- called 'feudal system', a system of land-holding in return for military obligations, provided the whole basis for medieval English society."(2)
Henry I, fourth son of William the Conqueror and third Norman King of England, was the first to recognize and eschew the bias and partiality favoring the overlords that was built into the feudal system. He acknowledged that the system itself allowed the landowners, and ultimately the King, to take grievous advantage of the holders and workers of the land.(3) Immediately following his coronation, Henry I authored the Coronation Charter, also known as the Charter of Liberties. The text of this charter provided the basis for many of the legal decisions governing land ownership and land holding in the years to come. From the text of the Charter, many of the terms of governance from previous years can be derived. The Coronation Charter stated first, that with the concurrence of the barons, the King would retain ownership of all the forests (almost like our modern National Parks system).(4) The Charter also enumerated specific property rights of individuals. Among these were:
During the reign of Stephen of Blois, property rights were once again pushed aside at the whims of the lords. The "nineteen long winters" of Stephen's administration saw excessive taxation, land usurpation, and abuses of the Coronation Charter in order that the lords might take up sides in the struggle between Stephen and his cousin Matilda over the English throne.(11) Stephen was unsuited for rule, and during his reign "... the countryside was ravaged, crops were destroyed, cattle were driven off. It was, as a chronicler put it, a time when 'Christ and his saints slept'".(12)
The chief aim of the rule of Henry II was to put right all the wrongs committed under Stephen.
"His first concern was to restore order. Castles built by the rebellious nobles were demolished, royal castles were resumed, along with Crown lands... Henry was then able to plan for the future. He raised new taxes (scutage) from the landholders in lieu of their feudal military obligations... Royal justice was revived. Judges from the King's courts were...sent into the shires, where they now combined with twelve local men to administer the law... Gradually, trial by judges...replaced the barbarous trials by combat or by ordeal in both criminal and civil cases. By the end of Henry II's reign, the English had become accustomed to paying their taxes, co-operating in government and to expecting fair play in the law courts. His system was so fundamentally efficient, that it continued to work even under the weak rulers that followed him."(13)
Although Delderfield speaks very highly of Henry II's laws, Dietze's assessment of his property laws diverges slightly. Many of Henry II's policies regarding personal and real property were seen as an overcompensation for the ochlocracy of Stephen's tenure. Well-to-do property owners were taxed excessively in addition to the scutage in order to cover the costs of a mercenary militia force; and centralization of jurisdiction in the cases of property disputes literally robbed the lords of their authority over their own lands.(14) It is these laws and policies, continued over the next three kings and influencing policy for the next three hundred years, on which we shall concentrate our study.
Throughout the twelfth and thirteenth centuries, the concept of rights versus privileges was one on which rested many a dispute. One basis for dispute was the concept of tenure. Defined freely, tenure is the concept on which feudalism is based: the idea that real estate is held in return for services rendered. Three types of tenure which existed in the twelfth and thirteenth centuries bear discussion. Military tenure was the concept of returning military service for landholding. This was also known as knight's fee and implied that land was granted directly from the King.(15) The Church was also granted tenure following Henry I under what was called free-alms. This granted the Church immunity from temporal dues and taxes, and held the incumbents liable only for spiritual guidance and labours in return for property rights.(16) Lastly was the practice of soccage, or lands held in return for service other than military service. Often, soccage lands were held in return for rents or as aspects of political dealings.(17) Each of these three conditions engendered different laws dealing with claims early in the post- conquest period.
Knight's fee tenure was a simple resolution. An armoured knight or noble was granted land in return for the promise of himself and an additional number of both armoured/mounted knights and infantry men-at-arms. The period of service was generally fixed at no more than forty days per year and was expected not to be exercised during planting or harvest except in the direst of emergencies.(18) Originally, the tenure of the knight was limited to his own life, and when he was no longer able to fulfill his obligations as a soldier, the lands reverted to the lord.(19) We might note here that traditionally, military service owed as a result of lands granted by a mesne lord(20) was owed directly to the King, in spite of other obligations owed to the mesne lord as part of the leasing agreement.(21) In this way, the concept of terra regis(22), or royal lands, was maintained.
Regarding free-alms, little else can be added. As stated in the beginning of the paper, the Church's immunity was written into the Coronation Charter of Henry I. This did not prevent future monarchs from holding Church lands in lieu of proper clergy.(23)
Soccage provided a fine line between the idea of a free tenant and a vassal. The basic difference between a soccage tenant and a military tenant is that soccage tenure is based on a service which "... must be fixed and certain: the most usual was a fixed payment of rent."(24) Soccage did not require an oath of fealty made necessary by military obligation, though many times soccage lands were held in fee. A good example of a soccage tenancy can be found in Domesday. "But of all the women mentioned in Domesday, perhaps the pleasantest note of all is in the story of Aelgar, who had enough land to live on from the Sheriff of Trent, so that she might teach his daughter gold embroidery."(25) Other services may include supplying foodstuffs or weaponry, devoting a certain number of man- hours to specific projects, or outright payment of cash.
Maintaining rights and privileges as a landholder in fee was tenuous at best during the eleventh century. It was during the reign of Henry II that the concept of due process was introduced into this tenure system. Previously, if a mesne lord claimed that services had not been rendered or dues had not been forthcoming, he could strip the holder of lands previously granted. This process would normally be dealt with in the lord's court where the holder would be summoned to answer the charges. Under Henry II, a process referred to as novel disseisin came into being.(26) With a writ of novel disseisin(27) the holder being stripped of his property claims that his property was taken without cause and/or without due process. The case is then forced out of the lord's court into the King's circuit court for determination. The case cannot be resolved until the defendant is adequately represented.(28) The basic presupposition of novel disseisin is that the defendant is always right. Even if the mesne lord gives proper notice and issues the required three summonses to appear in court to answer delinquency charges, the defendant's claim of ignorance is enough to generate a writ of novel disseisin. In addition, the concept of freedom of tenement states that a mesne lord must have proof and witnesses to support the claim of default before he can disseise the property.(29) In this way, Henry II took much of the power of determination out of the hands of his nobles and centralized it with the royal court; a process which contributed to the dissatisfaction of the nobility prior to Magna Carta.(30)
Due process under soccage tenancy was not much different from military tenancy. In this case, a mesne lord could not disseise the property without proof that the rent was delinquent, and without giving the soccage tenant the opportunity to answer the charges in court. Once again, the tenant could claim ignorance of the summons in order to generate a writ of novel disseisin, and force the case into the King's court.(31)
Tenure is but one aspect of the real property laws governing ownership and holding rights. Coupled with tenure is the right of an heir to a holder to inherit the feudal contract with all rights and obligations this may entail. As we saw above, the original obligation on both parts could be terminated when the tenant was no longer able to fulfill his obligations to the mesne lord. Although inheritance can be dated back as far as Edward the Confessor,(32) it wasn't until Henry II that the rights of the heirs were fully considered.(33) Royal writs demanding that the lord do right by the tenant's heirs are seen as early as the late twelfth century. By John's reign, hereditary concerns are part of the customary law.
"If anyone dies holding a free tenement, his heir shall remain in such seisin as his father had on the day that he died...; and afterwards he shall seek out his lord and do what he should concerning his relief and other dues. And if the heir is within age, the lord of the fee shall accept his homage and hold in wardship as long as is right... And if the lord of the fee denies to the heir the seisin of the dead man which he claims, the king's justices shall inquire by twelve lawful men what seisin the dead man had on the day that he died, and shall restore it to the heir in accordance with what is found. And if anyone disobeys this and is convicted of it, he shall remain at the king's mercy."(34)
Along with the right of the heirs to inherit feudal obliga- tions comes a profusion of laws governing claims to property. We will discuss these laws under two broad and distinct categories: simple claims and multiple claims.
Immediately following the passing of a tenant in fee simple, the heirs could make their claims against the estate for rights to the property. For the immediate heirs (children of the tenant in most cases) a writ was not required, provided the heir was warranted by the lord.(35) When two or more claims were made against the property, the judgment was made in favor of the individual with the greater claim. There are three common cases where multiple claims may be made: a widow or sibling vs. a child, two siblings when a widow or child is absent, and an heir who surfaces after the property has been reclaimed and reissued by the mesne lord.
In cases where the widow or sibling and an adult child of the tenant both claimed property rights, the claim went to the child unless the widow or sibling was warranted,(36) even if the adult child was carrying a writ patent justifying his claim. Many times in these circumstances the mesne lord would be required to grant the heir compensation for his loss. Claims by minor children are addressed later under wardship.
In the second case, where there was no widow or issue, the heir is recognized as being the next sibling in line. This is known as in feudo paternis, and came about in the latter half of the thirteenth century.(37) When both an older brother and a younger brother survived the tenant, the older brother would inherit. During the reign of Edward I, this distinction was carried a step further. The law during this period indicated a difference in legitimacy of a claim by the method in which the property was obtained. If the property was purchased outright by the holder, then the claim of the elder brother was honored. If held by fee or acquired through descendance, then the claim of the younger brother was recognized.(38) Land held in fee could never ascend.
The last case involving multiple claims arises when, in the absence of an heir altogether, the mesne lord reclaims and delivers the land to another tenant. Some time later, an heir surfaces, claiming his rights to the property. In this instance, the pretender to the claim must bear a writ charging his claim to the property. If the new holder is warranted by his lord, this dispute would undoubtedly be settled in the King's court. More often than not, the current holder would be able to keep his property, but the mesne lord would be required to compensate the heir with money equal to the land's total annual value, or property of equal worth.(39)
The question arises, what if there exists a legitimate heir to the property, but he is a minor? There are two considerations here. First is the question of whether or not an adult relative exists other than the direct heir. The second is the concept of wardship. The question of adult siblings versus minor children is not a simple question. Succession to the throne of England itself was sometimes in question over this issue. The history of succession dates back to the reign of Edward the Confessor. Under Edward, all progeny shared equally in the inheritance, dividing the lands between all heirs. This philosophy survived until Henry I who maintained that individual tracts of land had to remain whole, although multiple tracts could be divided among multiple surviving heirs. Henry II instituted the concept of primogeniture which asserted that only the eldest son could inherit the property. If there were no sons, then the eldest daughter would inherit. Somewhere between Henry II and Magna Carta, the exclusion of minors made its way into customary law. The concept of exclusion of minors basically stated that a brother of majority age would inherit property over a minor son.(40) Point in fact, John used this convention to take the throne on the death of Richard I, even though Richard's son Arthur was alive.(41)
The exclusion of minors was often overcome by the principle of wardship. As we saw above in the Assize of Northampton of 1176, under wardship, a lord would hold the land in the name of a minor heir, reaping all the benefits and profits associated with normal ownership. In addition, the warder collected a fine from his charge when the heir came of age. This began as a token payment, but was a major source of revenue for the lord warder by the reign of John. The practice of warding was often used by the King to reward someone, as wardship was seen as a lucrative prize.(42) In cases where the minor heir was a female, the right to decide on a suitable marriage usually accompanied the privilege of wardship, often making the female a pawn in a political chess game. An exception to the practice of wardship: when the ward was a soccage tenant rather than a holder in fief, all expenditures regarding the warded lands had to be accounted for and used to the benefit of the ward.(43) In addition, tenants in soccage, as opposed to tenants in fief, were exempt from the oppressive practice of forced marriage.(44)
Inherent with land ownership, however, was the lord's right to deny permission to marry. Because custom dictated that the heirs were recognized immediately upon the death of the ancestor, and the heir could be a wife or husband with loyalties elsewhere, the mesne lord gained the right of permission over the marriage of any of his vassals. Marriage without this permission could result in total forfeiture of all rights to the property. However, by the time of Edward II, the need for revenue was so great that dues and penalties could be paid the Crown in lieu of permission or forfeiture.(45)
Property inheritance or transfer were by no means tax-free endeavors. Payments known as aids and reliefs were both responsibilities of landholders, and reliefs were most often due upon accession to an inherited grant of land.(46) During the late twelfth and early thirteenth centuries, the relief due upon inheritance was equal to an additional year's rent.(47) Excessive taxation for succession to property under John was a factor contributing to the creation of Magna Carta.(48) Under Edward I, the common law in practice was that, in addition to the relief payment, the annual rent doubled upon the death of an ancestor.(49)
Other situations in which reliefs played a part were the alienation of property,(50) and the escheat of property.(51) In England, vassals of the Crown were required to pay a year's rent upon alienation.(52) Also in England, if land escheated, it was held by the sovereign for "...a year and a day..." prior to the lord re-assuming his rights to the land.(53) The mesne lord could avoid this deferral of property rights by paying the King rent equivalent to the detainment period. This became a major source of income for the Crown.
It's appropriate to note here that prior to Henry II, property taxes were almost non-existent. The King's income was almost solely from Crown lands. William I held approximately seventeen percent of the total land in England as Crown demesne, and used the income from these lands to support himself and his endeavors.(54) However, the sale of Crown lands by future sovereigns led to a decrease in property income and a corresponding increase in the need for property taxes. From 1087 to 1154, William II, Henry I, and Stephen all considered Crown demesne a source of funds, and indications of alienation are "...met on every hand".(55) By the time of Edward I, the loss of Crown lands made taxation the only possible way for the sovereign to raise revenue. This led to a law limiting the King's ability to do so without specific approval from Parliament.(56)
Finally, we must discuss the laws of conveyance. Conveyance is "the transfer of title to property from one person to another",(57) and was a complicated issue during this period, depending on how the title was acquired. As we have already seen, title could be secured by feudal obligation, lease, or outright grant. In all of these cases, land could be conveyed in part or in whole, with some limitations.
If a tenant holds land in fee, his obligation is to his mesne lord. In some cases the holder could convey a sub-feudal tenement to another holder who would then be obligated to him as he was to his lord. An example of this type of arrangement would be where one lord owed fealty to a mesne lord for a tenement. The lord then sublets to several knights who each owe the lord service. This arrangement continued until 1290 when the law of quia emptores was passed. Quia emptores essentially did away with the sub-feudal method of land conveyance by stating that if a holder delivered land to a sub-tenant, the sub-tenant owed service direct to the mesne lord, and had no obligation to the intermediate holder.(58) Soccage tenancy carried basically the same privileges and restrictions.
Land granted outright implied ownership, allowing absolute conveyance, inheritance, and litigation.(59) This allowance could lead to some difficulties if the owner attempted to convey property to someone hostile to or in enmity with the mesne lord. In order to prevent this situation from occurring, Parliament passed the law of De Donis in 1285 which restricted the tenant from alienating land to the prejudice of issue or grantor. Attempting to transfer land to a third party entailed the land, preventing the tenant from taking further action.(60) We might draw a parallel here to the modern practice of restrictive covenant, where a property owner in a development is prevented from modifying the property in certain ways by virtue of restrictions in the sales agreement.
Despite the fact that these laws were designed to protect the mesne lord or grantor, beginning in the reign of Henry III, the act of substitution against the mesne lord's will became the prerogative of the King. Substitution is the placement of someone other than the legitimate heir or rightful owner on the property.(61) As we have seen previously, the rightful owner or heir has certain rights to the property, and the mesne lord has certain obligations to the holders. However, by use of a variation of the charter of feoffment and payment of a fine to the mesne lord, the King could place someone other than the rightful holder on the land. This is similar to the practice today of condemning property and paying the rightful owner a fair market value for the purpose of building new roads or some such. Although this was allowed, it was a very rare case.(62)
What effect did the signing of Magna Carta by John in 1215 have on property rights in England? Dietze states emphatically that the importance of land laws in the Charter can be measured by the number of chapters in the Charter devoted to them.(63) As discussed previously, many of the laws governing inheritance, tenure, widows' rights, reliefs, and forfeiture were modified or changed outright as a direct result of Magna Carta. In addition to those already addressed, the following are specified:(64)
"Considering all three categories, we find that as many as thirty-eight chapters are concerned in one way or another with property. By contrast, only a few chapters deal with the rights of the individual. The liberty of the Church is protected in only two chap- ters... The right of marriage is protected in two chapters..., a maximum of services due in two..., protection from being put to one's trial without witnesses to support the accusation in one..., protec- tion from arrest and exile in five..., freedom of movement in two..., freedom from removal in three..., the protection of life in one. 'Liberties' in general are protected by nine chapters... Thus, out of the Charter's sixty-three chapters, as many as thirty-eight deal with property rights, whereas only twenty- three... protect other rights."(65)
Perhaps the second largest indication of the importance of Magna Carta is the fact that it was reiterated twice over the next century,(66) and that many of the principles therein are still in evidence today.
It goes without saying that the laws of medieval England governing real property changed significantly from the time of William the Conqueror to the beginning of the fourteenth century. Variations of these statutes can be seen in the text of modern property laws in Europe and the United States. The Duke of Normandy's contribution to the military capability of England through the land laws in effect over three centuries was certainly an enormous one. His edicts laid the foundation for fair and reasonable statutory governance of property while securing the positions of those he placed in power. As we have seen, regardless of the level of responsibility or the amount of power possessed by the Crown or the mesne lord's, property rights always seemed to favor the tenants. When this system was abused or ignored, the tenants (noble and freeman alike) took steps to rectify the situation, and Magna Carta was the ultimate result. The importance of property rights can be seen in the amount of verbiage dedicated to them in the Great Charter, as well as in the fact that the Charter was reiterated twice after its initial endorsement. No one should argue that Magna Carta played an overwhelming role in creating the constitutional monarchy in England, and contributed heavily to the doctrine on which modern republican governments throughout the world are based. Henry I provided a sound basis for the rights of tenants in his Coronation Charter which, as we have discussed, affected property laws and rights for three centuries. Furthermore, even the misappropriation and disparagement of these laws under specific sovereigns could not defeat the system as a whole.
In summation then, I would say that the medieval English system governing property was innately a good one. Time is the best test of any legal character.
Aid - A voluntary payment made to a feudal lord by a vassal, in addition to normal feudal obligations, for the purpose of funding a specific action or project.
Alienation - The act of transferring property or property title from one individual to another.
Baron - A generic term used to represent titled, landed nobility.
Chattel - An article of personal, movable property.
Charter of Liberties - The charter drafted by Henry I upon his ascendancy to the throne guaranteeing personal rights including rights with respect to property and real property.
Conveyance - The transfer of title to property from one person to another.
Coronation Charter of Henry I - See Charter of Liberties
De Donis - A law passed by Parliament in 1285 restricting a tenant from alienating land to the prejudice of issue or grantor.
Demesne - Lands retained by a feudal lord for his own use.
Descendence - Process dictating that the heir to property could not be senior to the holder on his own family tree.
Disseise - To dispossess unlawfully of real property.
Dowry - Property brought by a bride to her husband at marriage. In this text, it is used to describe real property owned by the wife prior to her marriage, and to which she may lay claim again upon her husband's death.
Due Process - Legal system by which all disputes between the mesne lord and the land holder must be settled. Due process is the sequence of events which must be followed prior to taking action against a delinquency.
Entail - To limit inheritance of property to a specified, unalterable succession of heirs.
Escheat - The reversion of land held under feudal tenure to the manor in the absence of legal heirs or claimants, or in the event of delinquency on the part of the land holder.
Exclusion of Minors - The policy preventing minor children from inheriting real property when a sibling or secondary relation of legal age is present.
Feudal System - A political and economic system based on the relation between a lord and his vassal as a result of land being held on condition of homage or service.
Fief - A feudal estate.
Free-alms - System laid down initially by Henry I in his Coronation Charter under which the Church lands were exempt from temporal dues and services.
Freedom of Tenement - The right of enjoying all the privileges of holding real property even though the property is owned by another.
Great Charter - See Magna Carta
In Fee - Holding land from a lord on condition of homage or service.
In Feudo Paternis - The law stating that the next sibling in line inherits property in the absence of children.
Knight's Fee - Holding land from a lord on condition of military service.
Magna Carta - The charter of rights and privileges signed into law by King John in 1215 under duress of his barons.
Mesne Lord - A feudal lord intermediate between a superior lord and his own vassals or tenants.
Novel Disseisin - Term indicating a previously undisclosed case of unlawful dispossession of real property.
Ochlocracy - Government by mob rule.
Primogeniture - The right of the eldest son to inherit the entire estate of one or both parents.
Quia Emptores - The law passed by Parliament in 1290 eliminating the practice of sub-feudalism. Quia emptores stated that a sub-tenant owed service only to the original grantor of the land, and not to the individual from whom he leased.
Relief - A payment made by the heir of a deceased tenant to a lord for the privilege of succeeding to the tenant's estate.
Scutage - A tax paid to the lord in lieu of military service.
Seisin - Legal possession of land, or the act of taking such possession.
Soccage - Land tenure in return for payment or service other than military.
Substitution - The act of removing the current land holder or heir, and putting another in his place.
Tenant - One who holds or possesses lands, tenements, or personal property by any kind of title.
Tenure - The holding of real estate and/or the terms under which it is held.
Vassal - A person who holds land from a lord and who receives protection in return for homage or service.
Wardship - The state of being in the charge of a guardian.
Warrant - The act of a lord guaranteeing clear title to property to a tenant or heir of a tenant. In many cases, this involved public decree.
Writ - A written order issued by a court commanding the person to whom it is addressed to perform or cease performing some specified act.
Writ of Novel Disseisin - A writ issued by the King's court to a mesne lord commanding the lord to either reinstate property to the bearer of the writ, or ordering the bearer of the writ and the mesne lord to appear before the King's court to settle a claim of disseisin.
Writ of Right - A writ issued by the King's court giving the bearer permission to seize property.
Writ Patent - A writ issued by the King's court which is open to general inspection.
Challis's Law of Real Property: Chiefly in Relation to Conveyancing, Butterworth and Co., London, 1911.
Cruise, William, A Digest of the Laws of England Respecting Real Property, Saunders and Benning, London, 1835.
Dalrymple, John, Feudal Property in Great Britain, A. Millar, London, 1757.
Delderfield, Eric R., Kings and Queens of England and Great Britain, David and Charles, London, 1986.
Dietze, Gottfried, Magna Carta and Property, University Press of Virginia, Charlottesville, 1965.
Digby, Kenelm Edward, An Introduction to the History of the Law of Real Property, Clarendon Press, Oxford, 1875.
Green, E. Swinfren, Land Law, Sweet and Maxwell, London, 1970.
Howarth, William, Land Law in a Nutshell, Sweet and Maxwell, London, 1987.
Hoyt, Robert S., The Royal Demesne in English Constitutional History: 1066-1272, Greenwood Press, New York, 1968.
Lawson, F.H., Introduction to the Law of Property, Clarendon Press, London, 1958.
Milsom, S.F.C., The Legal Framework of English Feudalism: the Maitland lectures given in 1972, Wm. W. Gaunt and Sons, Holmes Beach, Florida, 1986.
Platt, Colin, The Atlas of Medieval Man, Peerage Books, London, 1985.
Pollock, Frederick, The Land Laws, 3rd Ed., Fred B. Rothman and Co., Littleton, Colorado, 1979.
Ridall, J.G., Introduction to Land Law, Butterworths, London, 1988.
Shaw, Malcolm N., International Law, 3rd Ed., Grotius Publications Ltd., Cambridge, 1991.
Simpson, A.W.B., A History of the Land Law, 2nd Ed., Clarendon press, Oxford, 1986.
The American Heritage Dictionary of the English Language, New College Ed., 1976.
The Domesday Book: England's Heritage Then and Now, edited by Thomas Hinde, Hutchinson, London, 1985.
1 The American Heritage Dictionary of the English Language, New College Edition, 1976, p.486. Although the source cites the ninth century as the beginning of the feudal system in Europe, I state in the next paragraph how that system was carried to England by William I. The system in use by the Saxon and Danish kings prior to 1066 AD, while providing a pyramidical structure similar to that of the feudal system, was not designed to provide land for service, but to grant ownership of the land outright, generally for past service.
2 Eric R. Delderfield, Kings and Queens of England and Great Britain, David & Charles, London, 1986, p.26.
3 Ibid, pp. 31-2. William Rufus, who came between William I and Henry I, was known for abusing his rights as King. He often raised money by taking property outright from the owners and diverting the income from those properties directly into his own coffers. He was terribly disliked, and some say murdered by some of his own nobles rather than killed accidentally.
4 Gottfried Dietze, Magna Carta and Property, University Press of Virginia, Charlottesville, 1965, p. 10. The clause indicating the 'common agreement of the barons' indicates that the nobility at this time was already flexing their muscles against oppressive overlordship; a prelude to the events leading up to Magna Carta, which we shall enumerate later.
5 Ibid. This clause was probably included to appease the Church after the reign of William II. William often kept bishops' sees vacant in order to divert income to the royal coffers. This activity would eventually contribute to the difficulties the Plantagenet kings would have with the struggle between the authority of the Church versus the authority of the King over the next three centuries.
6 From The American Heritage Dictionary, p. 1098, "... a payment made by the heir of a deceased tenant to a lord for the privilege of succeeding to the tenant's estate". This definition would imply that the succession was a privilege rather than a right. Later, we will see that proprietary law considered this a fundamental right, and in fact provided a claim for the succeedant to the property in question.
7 Dietze, p. 11. Again, we are seeing this granted as a 'right' rather than a 'privilege', implying that the heirs of a tenant have a claim to the property.
8 Ibid. A Crown tenant is one who has received his property directly from the King. This would be the dukes, earls, and other direct relations to the throne, who would in fact own their land by grant rather than holding it through a feudal oath.
9 S.F.C. Milsom, The Legal Framework of English Feudalism: the Maitland lectures given in 1972, Wm. W. Gaunt and Sons, Holmes Beach, Florida, 1986, p. 32.
10 Dietze, p. 12.
11 Ibid, p. 17.
12 Delderfield, p. 33.
13 Ibid, pp. 36-7. It's important to note here that many of the laws instituted by Henry II were in existence in England from the time of William I. However, Henry's reign is the first time that we see these laws consistently applied over an entire generation, and therefore accepted even after he was deposed by Richard I.
14 Dietze, pp. 17-19.
15 Kenelm Edward Digby, An Introduction to the History of the Law of Real Property, Clarendon Press, Oxford, 1875, p. 30. While Digby asserts that the land is granted directly by the King, we will show that the land grant may be from any overlord. The military service returned is ultimately due the King, regardless of the source of the grant.
16 Ibid. While Digby emphasizes the freedom from temporal dues, Dalrymple indicates the commonality of the practice of diverting funds from Church properties by keeping the seat of the See vacant upon the death or removal of the incumbent. In this manner, the King could collect a great deal of revenue which would ordinarily not be taxed.
17 John Dalrymple, Feudal Property in Great Britain, A. Millar, London, 1757, p. 30.
18 Colin Platt, The Atlas of Medieval Man, Peerage Books, London, 1985, p. 24. The limits that an agrarian culture placed on the use of the militia in fact may have aided William I in his victory over Harold, since nearly one-third of Harold's troops returned home after the victory at Stamford Bridge, their period of service at an end and their harvest approaching. See Delderfield's notes on the invasion in Kings and Queens...
19 Dalrymple, pp. 42-3.
20 A mesne lord is a noble granted lands by the King who in turn grants parts of the lands to others, in effect becoming an overlord while maintaining his position as vassal of another.
21 A.W.B. Simpson, A History of the Land Law, 2nd Ed., Clarendon Press, Oxford, 1986, p. 29. Bracton's treatise on land law written during the reign of Henry III also documents this fact.
22 Terra regis is the concept that ultimately all lands in England were property of the King. The King's requirements for service were the basis of all landholding agreements, with the requirements of the mesne lord being added onto this foundation.
23 Dalrymple, p. 28. See the reference in footnote 16.
24 Simpson, p. 39.
25 The Domesday Book: England's Heritage, Then and Now, edited by Thomas Hinde, Hutchinson Group, London, 1985, p. 25.
26 Milsom, p. 11.
27 A writ of any kind is a written order issued by a court commanding the person to whom it is addressed to perform or cease performing a specified act (The American Heritage Dictionary, p. 1477). In the case of the writ of novel disseisin, the writ was issued by the King's court to the mesne lord in question.
28 Ibid, pp. 14-15.
29 Ibid, p. 15.
30 Digby, p. 44.
31 Milsom, p. 20.
32 Dalrymple, p. 194.
33 Milsom, p. 41.
34 Milsom, p. 164, an excerpt from the Assize of Northampton of 1176.
35 Dalrymple, p. 194. By warranting the heir, the lord publicly stated that he recognized the heir's right to hold the property in return for the feudal obligations previously held by the ancestor.
36 Milsom, p. 43.
37 Dalrymple, p. 206.
38 Ibid, p. 210.
39 Milsom, pp. 49-52. In instances where the new holder is not warranted by his lord, he is considered an interloper. A mesne lord could not remove an interloper without writ, and could not demand service without acknowledging the interloper's claim. The lord can only wait for the true heir to sue (pp. 54-5).
40 Dalrymple, pp. 194-200.
41 Delderfield, p. 39.
42 Frederick Pollock, The Land Laws, 3rd Ed., Fred B. Rothman & Co., Littleton, Colorado, 1979, p. 63.
43 Ibid.
44 Digby, p.39.
45 Dalrymple, pp. 43-44.
46 Pollock, pp. 62-3. Aids were voluntary payments equal to 1/20 of tax due and were used for a specific purpose, such as when the lord was trying to raise money for a war, marriage, or celebration. Reliefs are a one-time tax or penalty due for anything such as inheritance, conveyance, alienation, or escheat of property.
47 Dalrymple, p. 55.
48 Dietze, p. 22.
49 Ibid.
50 Digby, pp. 112-113. Alienation of the property is the act of transferring or conveying the property from one individual to another. See The American Heritage Dictionary.
51 Dalrymple, pp. 62-4. Escheat is the return of the property to the lord upon the death of the holder without heirs. Dalrymple also states that if a vassal commits a delinquency, the property will escheat, and the heirs have no recourse.
52 Ibid, p. 57.
53 Ibid.
54 The Domesday Book: England's Heritage, Then and Now, p. 24.
55 Simpson, p. 85.
56 Dalrymple, pp. 60-1.
57 The American Heritage Dictionary, p. 292.
58 Pollock, pp. 70-1.
59 Milsom, p. 103.
60 Ibid, pp. 67-8.
61 Ibid, pp. 104-5.
62 Ibid, p. 105.
63 Dietze, p. 33.
64 Ibid, pp. 32-36.
65 Ibid, p. 37.
66 Simpson, p. 305.