#1665 - Disciplinary Jurisdiction For Failure To Perform Services - History of English Law

Disciplinary Jurisdiction: the consequences of failure to perform services

The advent of the common law turned the entitlement to services into a common-law right. Lords could no longer enforce the feudal contract in their own courts.

1. Dispute over quantum:

If there is a dispute as to quantum that is a proprietary matter requiring a writ. Two were available:

1. the writ of customs and services for the lord, and

2. the writ ne vexes for the tenant (stops proceedings in the lord’s courts and obliges him to proceed in county courts).

2. Dispute where T is in arrears:

Dispute: Here we concentrate upon knight’s service, and upon what Milsom has called ‘the disciplinary aspect’ of the lord’s jurisdiction, in other words upon cases where the T does not dispute the quantum of services due but is simply in arrears. Lord’s remedy against T in arrear is distress (act of seizing goods/land to compel payment).

Old remedy: Distrain the tenant, by seizing his chattels, and then his land, to make him attend the lord’s court and answer, with the ultimate possibility of disseisin by judgment.

By second half of 12^th c: With the decline of the court’s authority, distraint against the land itself (per feodum) was no longer possible, a consequence of royal interference in the form of novel disseisin. Distraint became a measure of extra-judicial self-help, confined to chattels and reviewable in the royal courts. Lord would keep the chattels until T paid up or disputes in court.

Also in 13^th c. distress was no longer limited to the original parties to the lord-tenant relationship (a subinfeudation) – if T subinfeudates when he owes L outstanding services, Lord could distrain against T1 or T2’s chattels. So T1 has a remedy against T because he does not owe the service.

+ Milsom: Links the development of extra-judicial distraint to the appearance of artificial lords without courts. He links this to artificial lords – the possibility of a lord who is not powerful enough to distrain his tenant (uses Glanvill as support), i.e. Ts could be more powerful than lords; or a lord may not have a feudal court if he only has one tenant. He argues the lord distrains the T to come to the lord’s court to answer for the services.

- Jones: Milsom may overemphasise the link between distress and the processes of the lord’s court. Glanvill does not say there is a judgment of the lord’s court before the distress is exercised. If Milsom was right, distress would be too slow. So evidence suggests there was not a requirement of judgment before distrant – overemphasised judical aspect of distraint.

New remedy: The usual method of review by the time of Edward I (1272-1307) was replevin.

‘Replevin’: Required the lord, through the intervention of the sheriff, to restore the tenant’s goods on the tenant giving surety (plevine) to bring an action and the return the goods if he lost, and the lord ‘avowed’ (made his claim) for the services.

T would give security (L gives back the cows) action goes to the county court. T accuses L of taking cows so the lord uses the defence of services. If T lost he would give the land back.

The lord’s avowry had to be based on seisin of the services; originally by performance to himself or his immediate ancestor, after 1285 by any performance within a limitation period.

If a tenant subinfeudated, and then failed to perform his services, the lord could distrain on the under-tenant, who then had to seek his remedy – by writ of mesne – against the intermediate lord, both for restitution and to compel the latter to perform in future.

= Services ceased to be contractual in reality or theory, and became as much a property right as the tenant’s right to the land. They were themselves the subject of seisin, acquired when the tenant performed.

Thus, if the lord could not use self-help, he was driven to use a writ of right for customs and services, or the assize of novel disseisin. These actions only enabled him to recover services.

The Statute of Gloucester (1278): Gave the lord the better remedy of recovering the land itself (by a writ of cessavit) where the tenant ceased to perform for at least two years.

= Lord by common law could do what he had done in the past by his own court.

= Proprietary right/not contractual services

Litigated in royal courts – writ of right available to lord to prove his right to the services, or novel disseisin to show right to the services.

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Dangers of Subinfeudation - Why did artificial lords arise?

1. Subinfeudation for no temporal (as oppose to spiritual) service.

2. Subinfeudation for a money price without the reservation of a substantial service.

Two dangers to feudal lords in these two situations:

(1) A danger to services; and

(2) A danger to incidents.

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(1) Subinfeudation for a spiritual service

Magna Carta, c.32: T subinfeudated to monasteries. So T only has a little bit of land. L cannot distrain to get services so L loses out.

‘Mortmain’: Grants to corporations, mostly religious houses. Subinfeudation for spiritual service. T subinfeudates to a monastery – service is that the monastery will pray for T.

• Problematic for the grantor:

  1. He had impoverished himself – given away his land freely; and

  2. He would never become entitled to any of the incidents of tenure because his tenant would never die.

  • Problematic for the grantor’s lord:

1. Danger to services – If T has 3 acres and owes 3 knights. He subinfeudates 1 acre to M. 2 acres was not enough to give L 3 knight. T reduces his resources. Lord loses his good tenant – monastery would be unsuitable for military tenure. The lands of some religious bodies were immune from distraint.

2. Permanent nullification of lord’s incidents – If military tenure tenant dies with an infant heir the land falls back into L’s hands until H comes of age. But if before death T subinfeudated to a monastery for prayers, what T now has is a lordship over the monastery, which is the value of the service, not the land. The wardship is not of the land, but of the wardship. So the L is entitled to prayers for the dead tenant’s soul. If S is a monastery there is no prospect of wardship by reason of wardship, so L would get both lands. Put property is ‘dead hand control’.

The 13^th century response:

Magna Carta 1217, c. 39: Attempted to protect against danger to services: ‘No free man shall henceforth give or sell to anyone more of his land than will leave enough for the full service due from the fee to be rendered to the lord of the fee.’ = There shall not be subinfeudations which leave tenants without the resources to perform services owed to lord. Passed by gov as King Henry III was an infant.

Issue: Difficult to enforce, as that turned upon litigation of how much land was needed; uncertain. This provision was in practice confined to grants to religious houses, known as alienations into mortmain because it was hard to distrain the church.

Provisions of Westminster 1259, c.14:

Statute of Mortmain, De Viris Religiosis 1279: All alienations into mortmain were forbidden whatever the purpose, without consent. Ended subinfeudation for prayers/grants of land to the church. There were practical limits to the amount of land which would be given away in return simply for prayers. Gave lords back the power to take lands back which had been granted to religious bodies without their consent. The legislation could be avoided by royal licence.

Issue: Pragmatic limits might not apply where I subinfeudate for a lump sum payment.

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(2) Subinfeudation for a lump sum payment without reservation of a substantial service (nominal service)

Situation: L has T1, and T1 subinfeudates to T2 (a natural person). If TI owes military service to L and subinfeudates to T2 for a lump sum payment and a nominal service. Nominal service is ‘a red rose at midsummer’. The knightservice that T1 owed to L is now fixed in money and so is effectively nominal in comparison with the value of the land. Knight service is worth 100 shillings, not as valuable as the land. So L gets nominal service and 100 shillings (less than land is worth).

Maybe substitution would be better as this is in fact a sale of the land. So T1 would drop out of the picture. Would seem a more natural way to sell land. Substitutions were not common in the 13^th until after 1290. There was many subinfeudations for nominal service and a lump sum.

Why are there these sales by subinfeudation in the 13^th c. for a lump sum and nominal service?

• + Milsom: Suggests that for substitution T1 requires the consent of L. L may not dare consent to a substitution because, if he takes on T2 as a new tenant, T2 does homage and so L is obliged to warrant T2. If some descendent of T1 comes later with a royal writ claiming land, and if H succeeds, L must provide T2 with alternative land. So T1 cannot substitute. By 13^th subinfeudation did not require L’s consent. T2 may be worried too about H coming as he may have to assert his entitlement.

• More a question of the commercial interests of the parties. If T1 substitutes he drops out of the picture. But if T1 subinfeudates he becomes T2’s lord. When T2 dies with an infant heir, T gets wardship, so he gets lump sum payment and...