BURGAGE TENURE IN MEDIAEVAL ENGLAND BY MORLEY DE WOLF HEMMEON, PH.D. SOMETIME AUSTIN TEACHING FELLOW IN HARVARD UNIVERSITY CAMBRIDGE HARVARD UNIVERSITY PRESS LONDON: HUMPHREY MILFORD OXFORD UNIVERSITY PRESS 1914 COPYRIGHT, 1914 BY HARVARD UNIVERSITY PREFACE THE following monograph was first prepared under the guid­ ance and inspiration of the late Professor Charles Gross and was accepted in partial fulfilment of the requirements for the degree of Doctor of Philosophy in Harvard University in 1908. It was also awarded the Toppan Prize in the same year. Summaries of many of its conclusions were printed in the Law Quarterly Review, July and October, 1910, and January, 1911; but the present work contains much which did not appear there or in the essay as first submitted for the Doctorate. For careful revision of the manuscript and proof, for the preparation of the index, and for verification of matters of detail, the Department of History and the writer desire to express their sincere gratitude to Mr. G. W. Robinson, Secretary of the Graduate School of Arts and Sciences, to whom, in the absence of Dr. Hemmeon, these matters have been entrusted. CONTENTS PAGE INTRODUCTION 3 CHAPTER I THE INCIDENTS OF BURGAGE TENURE THE THREE AIDS: RANSOM, KNIGHTING, MARRYING 11 MARRIAGE 12 WARDSHIP 15 RELIEF 18 HERIOT 22 ESCHEAT 24 FORFEITURE 33 FEALTY 45 HOMAGE 49 MILITARY SERVICE 51 RETRAIT FEODAL 52 ALIENATION FEES 54 INPENNY AND OUTPENNY 57 SUIT OF COURT 58 SUMMARY 59 CHAPTER II BURGAGE RENTS LANDGABLE AND HAWGABLE 62 LIST OF LANDGABLES 67 RENTS AND SALES OF MESSUAGES 80 THE NATURE OF THE BURGAGE 92 FOREIGN TENURES WITHIN THE BOROUGH BOUNDS 102 CHAPTER III MOBILITY DIVISIBILITY 108 FREE SALE 110 RESTRICTED SALE 114 INPENNY AND OUTPENNY 127 vii Viii CONTENTS PAGE FREE DEVISE 130 RESTRICTED DEVISE 135 THE RIGHTS OF THE FEMME COVERT 144 MORTGAGE 146 ACCUMULATION OF BURGAGES 148 CHAPTER IV ACCOMPANIMENTS AND COMPARISONS THE FIRMA BURGI 154 BURGAGE TENURE IN DOMESDAY 158 ENGLISH BURGAGE TENURE AND THE LAWS OF BRETEUIL .... 166 URBAN TENURE IN NORMANDY, THE NETHERLANDS, AND GERMANY . 172 CONCLUSION 183 APPENDIX URBAN TENURE IN GERMANY THE INCIDENTS OF WEICHBILD 193 GROUND RENTS 199 MOBILITY 201 BIBLIOGRAPHY 209 INDEX 219 ABBREVIATIONS C. A. D. Great Britain. — Public Record Office. A Descriptive Calendar of Ancient Deeds in the Public Record Office. C. C. R. Calendar of the Charter Rolls Preserved in this Office, 1226-1344. C. J. M. Calendar of Inquisitions post Mortem and other Anal­ ogous Documents. C. P. R- Patent Rolls, 1216-32; Calendar of Patent Rolls, 1232-1485. D. B. Domesday-Book. H. M. C. Royal Commission on Historical Manuscripts. P. R. 0. Public Record Office. R. C. Record Commission. R. H. Illingworth, William, editor. Rotuli Eundredorum. R. S. Rolls Series. 0. anno or annis. c. or cir. circa. m. membrane. t. or temp, tempore or temporibus. ix BURGAGE TENURE IN MEDIAEVAL ENGLAND BURGAGE TENURE IN MEDIAEVAL ENGLAND INTRODUCTION IN the feudal ocean which once rolled over northern and western Europe appeared many islands, relics of a submerged and ante-feudal continent. These islands, some of which were artificial and imitative, were the urban communities. The waves of feudalism might wash their walls; in towns of artificial founda­ tion the spray might be flung into the narrow streets, but there their course was stayed. For the borough, Stadt, or ville had a tenure of its own, the tenure en bourgage of Normandy, the Weichbild of Germany, the Burgage Tenure of England. In view of its importance as presenting economic and legal conditions of land-holding almost the same as those of modern days, it seems fitting that the tenure of the English mediaeval boroughs should be treated as a subject in itself; and it is perhaps peculiar that no attempt to do so should have heretofore been made. In Germany urban tenure has been, and is yet to some extent, a question which has aroused much controversial dis­ cussion by which the literature of origins has been greatly en­ riched and the sum of human knowledge slightly increased. In Normandy and the Netherlands the tenure has been adequately treated. In England the tenure of land in the boroughs has received some attention from writers on burghal institutions in general, though usually in a way which indicates that, in their opinion, the tenurial side of borough development is hardly as important as the political side. This may be so, yet it seems as if the burgess's influence in shaping the political destiny of any­ thing except his own particular borough is almost a negligible quantity in English mediaeval history, while on the other hand the legal and economic example which he set in the matter of transfer of real property has its results in the modern land law of the realm. Even from the personal side there is reason for 3 4 BURGAGE TENURE IN ENGLAND investigating the tenure, for the close connection between tenure and status was a matter of great importance in the middle ages, a period when the former often determined the latter. Possibly one reason why writers on English burghal institutions have neglected the tenurial side of borough development is because they have commonly defined burgage tenure when they knew any law, or have had it defined for them when they knew none, as that species of the free or common socage tenure which was peculiar to cities and boroughs. Perhaps Coke should bear as much responsibility as any one for this definition; it is not at all satisfactory. The framers of the Great Charter would not have accepted it; they drew a clear line between holding in socage and holding in burgage.1 If one tenure be derived from the other this definition should be reversed, for burgage tenure shows greater age in the survival of at least one archaic custom.2 It is more logical as well as nearer in line with fact to regard each as the descendant of a common ancestor, the ante-feudal system of land-holding. But this is the entrance to the jungle of 'ori­ gins,' which might be less of a jungle were its so-called explorers to cease for a space from internecine strife. As feudalism becomes systematized, the burgage and the socage tenure resemble each other less and less. Their resemblance lies in freedom from the feudal incidents.3 Where they differ is in mobility; the land in the boroughs can be devised, sold, and divided. It is true that land held in socage might be trans­ ferred among the living. It was often sold and divided, but sale and division were attained only by permission, or payment therefor, or by circumventions of the law such as fines and re­ coveries;4 devise the socage tenure never knew. Within the boroughs the leading feature of the land, its mobility, was the leading feature of the land law; there was no need of resorting 1 Magna Carta, cap. 37. 1 Military heriot. 3 Socage tenure, however, was subject to aids and reliefs, and sometimes to wardship. 4 True also in the main of land held in feudal tenure even before 1290. The term circumvention is used advisedly and only as an expression of legal means of change. INTRODUCTION 5 to collusion when land was to be sold or divided. The need was the other way; there must be true deliverance made in respect to a sale; there must be publicity, else the sale might be invalid. The peculiar and distinguishing characteristic, however, of the borough land law, that feature which marked it off so sharply from the land law of the country, was ' freedom of devise.' Says Glanvill, " God alone and not man can make an heir." Yet even in Glanvill's day man could do in many boroughs what only God could do without the borough bounds. Burgage tenure then may be denned as a form of free tenure peculiar to boroughs, where a tenement so held might be alienated by gift, sale, or devise to a degree regulated only by the custom of the borough, unburdened by the incidents of feudalism or villeinage, divisible at pleasure, whose obligations began and ended in the payment of a nominal quit-rent, usually to an elected officer of the borough.1 The scanty literature of our subject may be said to begin with Glanvill's law-book, though there is little to be learned therefrom except that its author knew what burgage tenure was.2 Bracton gives it a little more attention. To him freedom of devise seemed to be its leading feature;3 Littleton saw the same aspect.4 The appended quotations show that the writers of these older law books had only a derived interest in the tenure of the boroughs and used its customs for illustration of or comparison with certain customs of the common land law. The reason for this is that pleas of land in the boroughs were nearly always held in the borough courts, than which few privileges were more highly valued by the English burgesses. As royal judges therefore, these earlier law writers seldom had the tenure brought within their purview; only in case of default of judgment or like ground 1 True only at a very early period of burgbal history; at a later period most tenements paid no quit-rents, possibly some had never paid any. 1 Treatise, bk. vii, ch. io et pass. ' De Legibus, i, p. 164: "si forte Iegatum fuerit, sicut in burgagiis"; ibid., i, p. 388: " cum laicum feodum legari non possit nisi in rebus specialibus, sicut burgagiis." * Coke, Commentary upon Littleton, sec.