#1672 - Introduction To History Of Land Law - History of English Law

History of Land Law

Writ of right patent:

Assize of Windsor and Magna Carta

Petty assizes:

1. Novel disseisin

2. Mort d’ancestor

Writs of entry:

Replevin: Lords enforcing rights to services

Incidents of Tenure

1. Aids

2. Fines on alienation

3. Relief and primer seisin

4. Escheat

5. Customary dues

6. Wardship and marriage

Issues:

1. Mortmain

2. Method of conveyance - substitution and subinfeudation

Solutions:

1. Statute de Viris Religiosis (1279)

2. Quia Emptores

Fee Simple

Protection of widows

1. Dower

Protection of younger sons and daughters

1. Entail

2. Maritagium

Entail

1. Statute de Donis – protects intentions of donors

2. Attempts to bar entails:

• Warranty Conveyance

• Right of re-entry

• Common recovery

• Final concord

3. Perpetual settlements not possible

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Pre-Conquest: Anglo Saxon

The Conquest

Conquest made little change at peasant level – Normans came to exploit the peasantry. However, at upper levels of society (regional kings and barons) the Conquest makes a break. They were all displaced and replaced by Lords. Only a few Anglo-Saxon people remained significant land holders and William the Conqueror rewarded people with land, not money.

Bookland

Bookland provided for a grant of land from the king in perpetuity to one who would be liable for military service, and to forfeiture of the land for failure to perform that service. The book was a royal charter recording the grant, which can be contrasted with folk land, held on customary terms.

What was the influence of bookland on the higher class after the invasion? Merges in Norman feudal tenure and the term disappears. The importance of bookland:

1. Bookland was subjected to and protected by royal authority; so if (as some argue) in decades immediately after Conquest there was significant royal influence in relation to land holding, that may have its roots in the pre-conquest period. The Norman conquerors happy not to treat their new acquisition as a clean slate. The proprietary of royal involvement in land holding was carried across into the Anglo-Norman period.

2. Bookland appears to approach ‘property’ even in a strict legal sense. Given the fulfilment of limited and specific requirements (i.e. military service) the holding of bookland was clear. It could be alienated and inherited. And could be left by will. Look like lawyer’s property ownership of land.

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Post Conquest: 1066 - 1290

Political Developments

• Last Anglo-Saxon Wessex king was Edward the Confessor who died childless in 1066. Was succeeded by brother in law, Harold Godwinson. Defeated in October 1066 by William Duke of Normandy.

• William I (the Conqueror), reigned from 1066 until 1087. Claimed throne by rightful grant. Upon his death he was succeeded by his son William II (‘Rufus’), who died in 1100.

• William II was succeeded by his younger brother Henry I, who died in 1135. Henry I wished to be succeeded by his daughter Matilda, widow of the Emperor Henry V. He failed to grant her lands or castles or crown her.

• The Anarchy - Within weeks of Henry I’s death the throne had been seized by Matilda’s cousin, Stephen, son of Henry I’s sister Adela. Stephen’s kingship was shortly confirmed by the pope, but ‘[f]rom then on it was steadily down hill’ (+ David Carpenter, The Struggle for Mastery, Britain 1066-1284), and there followed a period of disorder (‘the anarchy’) as Stephen and Matilda and their respective supporters struggled for the throne. Intermittent civil war. War ended in stalemate.

• Under the Treaty of Winchester 1153, Henry II, Matilda’s son, came to the throne upon Stephen’s death in 1154. Treaty provided Stephen retain the throne for life and then be succeeded.

• Henry II came to the throne in 1154 against a background of anarchy. The Great Statute 1290.

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Appendix

Substitution vs. Subinfeudation - Not just alternative forms of conveyance, but different kinds of arrangement:

• ‘Subinfeudation’: A ‘vertical’ transaction by which original tenant remains in place as lord’s tenant and creates a new tenure so the grantee will hold of him. Describes transaction whereby a grantee of land was admitted to hold it as tenant of the grantor – to ‘enter in the fee’ ofgrantor. Does not disturb relationship between the vendor and his lord on alienation. Alienation by subinfeudation was ended in 1290.

E.g. The tenant-in-chief wishing to provide himself with a fighting man to satisfy his obligations to the king will make a subinfeudation.

A subinfeudation can be made without the participation of the grantor’s lord. However, the lord does have an interest in the matter because there could be impairment in either his services or his incidents.

• ‘Substitution’: A ‘horizontal’ transaction by which the grantee is substituted as the lord’s tenant and the original tenant just drops out of the picture. Alienation of the land by replacing one tenant with another. On feudal principle this could never be done without the lord’s consent. It was common for unfree tenures (the lord’s consent could be paid for), but rare for free tenures.

E.g. A tenant who has acquired lands elsewhere, perhaps by marriage, may prefer to sell his present tenement outright for a capital sum rather than subinfeudate it for rent or services.

+ Milsom: Argued that in reality this was not one ‘horizontal’ transaction, but two ‘vertical’ ones: Tom who is now Harry’s tenant must surrender the tenement to Harry, and Harry must make a new grant to Dick.

Distinction: Note distinction between subinfeudation (downwards – creates a relationship of lord and tenant) and substitution (horizontal – steps into T’s shoes, T drops out of picture) is significant: they are not merely alternative modes of conveyance. These two are different, one more appropriate than another in given situations.

Subinfeudation – If this causes impairments in the lord’s services or his incidents the lord could then distrain. Subinfeudation might only be for a portion of the land. Lord generally had no problem with it.

Substitution – Lord picked tenants for their particular skills in a service – tenant could not just foist a new tenant onto the lord who might not be as good fines for alienation.

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Incidents of Tenure

‘Incidents of tenure’: Represented what was left to lords after feudalism (and lord’s powers and jurisdiction) was subjected to the control of the king’s courts (common law). Seigniorial powers were restricted and defined by law.

In the 13^th c. they became another species of property (the casual side effects of tenure): a charge on the tenant’s land, protected first by distraint and then (in the alternative) by another range of praecipe actions introduced in the course of the century.

1. Aids – Lord could exact financial contributions (‘aids’) from his tenants to assist him in meeting any financial difficulties.

By Magna Carta, aids were limited to three cases; where the lord needed money to:

• ransom himself from captivity;

• knight his eldest son; or

• provide a dowry for his eldest daughter.

Such aids were to be reasonable – in 1275 the last two were fixed at 20 shillings per knight’s fee or per 20 of socage land (Magna Carta, cl. 12). The king was not to levy other aids without the consent of the great council of the realm.

2. Fines on alienation – As tenure was a personal relationship, alienation of the land by substitution (replacing one tenant with another) required the consent of the lord. Real consent could be charged for: the fine for licence to alienate.

3. Relief and primer seisin – In the absence of legal restraint, lords might the profits from a deceased tenant’s land for themselves until the heir bought back the land by paying ‘relief’; unscrupulous lords might even frustrate inheritance by demanding excessive relief. This ‘primer seisin’ entitled the lord to the profits during the feudal limbo, and was also security to ensured the tenant paid relief. Relief had to be reasonable. Primer seisin was abolished in 1267.

4. Escheat – The greatest gain was made for the lord if the tenant died without any heir. In that case the obligation flowing from the homage ended, and the lord could take the land back again at his free disposal. The same thing happened if the tenant was convicted of a felony; the felony so corrupted his blood that he could have no heirs.

5. Customary dues – Customary obligations had to be performed on the death of either the lord or the tenant. The most widespread was the custom of heriot, which entitled the lord to seize the best beast or chattel of a deceased tenant.

6. Wardship and marriage – If a deceased tenant’s heir was underage he was subject to wardship. The land reverted back to the lord so that he could be compensated out of the income for the loss of services. In return the lord had to raise the ward, and Magna Carta prohibited them from committing waste in their wards’ lands. Guardian received the heir’s body too and so was entitled to select a suitable marriage – this could be highly valuable as it involved substantial transfers of wealth. If a ward declined a suitable marriage he...