#1676 - The Doctrine Of Tenure - History of English Law

The Doctrine of Tenure – The relationship between lord and man

Land as Wealth and Jurisdiction

Wealth: Importance of land as wealth is apparent as a major form of capital wealth, though not to be over-estimated. More important in this period as there were no shares etc.

Jurisdiction: Land was not only property; it was also jurisdiction and power. Rights of land holders were rights over the people on the land, or over lessor lords, not just over the land itself.

Feudal Structure:

• Top: The King (always lord, never a tenant).

• The honour: Tenants in chief (direct tenants of the king). Lord of the honour.

• The manor: Lowest level of jurisdiction. Lowest unit of lordship. Lord of the manor.

• Peasants: Hold the land of the lord of the manor.

Writ of Henry I in 1108: If in future there should arise a dispute concerning the allotment of land, or concerning its seizure, between tenants in chief, let this be tried in the king’s own court. If the dispute is between barons let it be held in the court of their common lord. It is a communal court, like the county council, which collectively makes decisions. The lord, or his steward, presides over the court as the sheriff, but he is not the judge.

+ Milsom: Sees the honour and the manor as ‘feudal states in miniature’. Milsom derived from work of Stenton. Within the honour, or the manor, the lord was the supreme authority, and disputes in the manor or honour court were determined according to the custom of the manor/honour by the collective suitors of the court, not by the common law. Court is exclusively concerned with land holding. Free from external interference - sovereignty.

+ Megarry and Wade: There are … two fundamental doctrines in the [English] law of real property:

1. Doctrine of tenures: All land is held of the Crown, either directly or indirectly, in one or other of the various tenures. Concerned with the terms upon which land is held; and

2. Doctrine of estates: Land held in tenure is also held for an estate for some period of time. The estate determines for how long.

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‘Tenure’: Name given to the relationship whereby a tenant ‘holds’ of the land of a lord. Initially a social fact, rather than a legal concept. Underpinned the Anglo-Saxon feudal system.

After Conquest subinfeudation produced a chain of dependent tenures.

King

Tenants in chief

Tenants

Peasant

Relationship – King seen as lord of all land, though not as owner. The creation of the relationship between feudal lord and tenant was often sealed by homage. Lord and tenant were bound by mutual obligations of warranty and service/loyalty.

+ Glanvill: ‘The bond of trust arising from lordship and homage should be mutual, so that the lord owes as much to the man on account of lordship as the man owes to the lord on account of homage, save only reverence’ = Almost a contractual obligation – land as pay for services.

• Lord’s obligation: From 1120 (Henry I) lords were routinely expected to warrant his man’s tenure. Warranty had both a positive aspect, to maintain the grant of land against outside challenge or, if this proved impossible, to provide compensation (escambium) in the event of a successful challenge; and a negative aspect, an obligation not to take back the land granted having warranted his T.

Issue: How far were the bond/obligations of warranty regarded as irrevocable?

• Tenant’s obligations: Tenant was obliged to perform services, the nature of which varied widely – lord determined these. In feudal logic the land was the pay for the services. If services could not be rendered, as if a tenant died leaving an infant heir, no pay should be provided. The land fell into the lord’s hands during the minority. Such wardship was not fiduciary.

+ Baker’s broad classification of feudal service/obligations – within free tenure there are 3 service types:

1. Military – e.g. garrison duty, chivalrous service (knight service – provision of soldiers. This is socially superior and was originally the means by which the king obtained an army. Limits as there was limit of no. of days of knight service per year. No provision for training.)

2. Agricultural – Form of labour law in production units, e.g. customs regulated agrarian routines.

3. Spiritual – e.g. saying of masses, distribution of alms to the poor, for the good of the soul of the lord.

In feudal logic the land was the pay for the services – what are the consequences?

• Military tenure/ knight service – What happens when the current tenant dies?

1. T dies leaving an adult heir –At common law the heir of your real property was determined for you by law; usually eldest son (primogeniture). If you have no son, then daughter. If several daughters then they are jointly your heir (Statutum decretum). If no children, then heir is another relative, brother or nephew, not your parents. Cannot at common law make a will of your freehold land. The freehold land descends to heir. Adult heir is ready to take over and perform service instead of ancestor. But the heir is required to make a payment upon taking up the land, known as relief, for taking up the land again.

2. T dies with an infant heir – Valuable feudal incident -...