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English Feudalism and Estates in Land*

Published online by Cambridge University Press:  16 January 2009

S. E. Thorne
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Extract

It is fitting for a lecturer to pay his tribute to the man under whose auspices, so to speak, he lectures. That sometimes is a difficult matter, requiring the closing of an eye to many things, but in this case I am happily absolved from any such necessity, for there can be no doubt that Maitland was a man of genius. I hardly need say this in Cambridge, or in any other place where scholars come together, for his reputation has been long and securely established. It is now more than half a century since his death, and longer since his books were written, yet they are today more widely read than ever. The intensive researches of the last fifty years have made only the smallest alterations in the conclusions they reached. He himself was perhaps not quite as sure of them as we are. The most honest of men, he was always careful to reveal his doubts, and it is to a subject on which he had many doubts that I address myself today. I shall talk about the ownership and heritability of land in the twelfth century, in other words, about the emergence of the fee simple as an estate in land. I shall begin by setting before you Maitland's own account.

Type
Research Article
Information
The Cambridge Law Journal , Volume 17 , Issue 2 , November 1959 , pp. 193 - 209
Copyright
Copyright © Cambridge Law Journal and Contributors 1959

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References

1 Pollock and Maitland, History of English Law (2nd ed.), i, 314–316.

2 P. & M., ii, 293–294.

3 P. & M., i, 315–316.

4 P. & M., ii, 13, 309–311.

5 P. & M., i, 340 et seq., 345.

6 P. & M., ii, 13, 15, 17.

7 P. & M., ii, 309, 312.

8 P. & M., i, 332, 343.

9 P. & M., ii, 308–309, 311, 313.

10 P. & M., ii, 20, 308–309, 312.

11 P. & M., i, 344.

12 P. & M., ii, 5, 6.

13 P. & M., i, 314.

14 Feudalism (1952), 120–121.Google Scholar

15 Concise History of the Common Law (5th ed.), 524. But p. 360: “The assize of mortdancestor (1176) played a large part in the final establishment of the hereditary principle.”

16 English Feudalism (1932), 160.Google Scholar

17 Ganshof, Feudalism, 96, 121.

18 Ibid. 38.

19 Ibid., 121.

20 Ibid., 122.

21 Ibid., 38, 39, 42, 124.

22 Ibid., 124–125.

23 Douglas, Feudal Documents from Bury St. Edmunds (1932), cii-ciii; Plucknett, Concise History, 524; P. & M., i, 316: “the truth is that men gave lands and took lands and left the terms of the tenure to be decided by the course of events and their own strong wills.”

24 See the charter of 1122 in Stenton, English Feudalism, 154–155; Sir Christopher Hatton's Book of Seals (1950)Google Scholar, No. 528.

25 This long remained true of the king and his tenants in chief: Book of Seals, No. 174. His position was not from the first exceptional: P. & M., i, 312, n. 2.

26 Stenton, English Feudalism, 271, Nos. 24 and 25; 272, No. 26; 282, No. 43; Stenton, Documents Illustrative of the Danelaw (1920), Nos. 457, 518; Book of Seals, Nos. 50, 374.

27 Here again the king's position is not at first exceptional: P. & M., i, 311.

28 Stenton, English Feudalism, 271, No. 24; Book of Seals, No. 513.

29 S. J. Bailey in Camb.L.J., viii, 278–280; ix, 88–93, 194.

30 Stenton, English Feudalism, 159, 274, No. 31.

31 Ibid., 161, n. 2, 277, Nos. 34 and 35 (the word “patre” is omitted in line 5: “de meo patre”); Book of Seals, Nos. 88, 330.

32 Glanvill, vii, 9; P. & M., i, 310.

33 P. & M., i, 310–311.

34 Stenton, English Feudalism, 161.

35 Bailey in (1958) 9 Camb.L.J. 194.

36 P. & M., i, 237, n. 1.

37 Glanvill, vii, 1; P. & M., ii, 286, 289–291, 292–295.

38 P. & M., ii, 13, 329.

39 Ibid., ii, 14.

40 Cf. van Caenegem, Royal Writs in England (Selden Soc.), 322.

41 P. & M., i, 346; Stenton, English Feudalism, 89–90.

42 P. & M., i, 340–343. Maitland did not distinguish sufficiently between gifts for service and gifts free of service; he saw the problem only in general terms: the tenant's capacity to alienate.

43 Book of Seals, Nos. 107, 196, 199, 218, 354, 413, 507.

44 Ibid., Nos. 518, 519.

45 Ibid., Nos. 153, 507, 510.

46 P. & M., ii, 329, n. 2; Stenton, Gilbertine Charters, xxxiii; Douglas, Feudal Documents, 179; Stenton, English Feudalism, 37–89.

47 Stenton, English Feudalism, 278, No. 36; 279, No. 38; Book of Seals, No. 143.

48 Ibid., 284, No. 46.

49 P. & M., ii, 309–311.

50 Stenton, Gilbertine Charters, xix, xxix; Book of Seals, No. 196n.

51 P. & M., ii, 4–6.

52 Ibid., ii, 308–309.

53 Ibid., ii, 311.

54 Book of Seals, No. 455; Curia Regis Rolls, viii, 138–139.

55 P. & M., i, 345.