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Succession to Fiefs in Early Medieval England

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Succession to Fiefs in Early Medieval England SUCCESSION TO FIEFS IN EARLY MEDIEVAL ENGLAND PROFESSOR HOLT'S ARTICLE ON "POLITICS AND PROPERTY IN EARLY Medieval England"* raises many important questions about the Downloaded from history of English feudalism during the century following the Norman Conquest and throws light on all of them; but bis attempt to explain the Anglo-Norman "tenurial crisis" mainly in political terms is not entirely convincing. He has not proved that Anglo-Norman fiefs were heritable, or that Anglo-Norman law provided the holders of fiefs with adequate security of title. He has also made what may be http://past.oxfordjournals.org/ a somewhat anachronistic distinction between judgements made in accordance with "law" and judgements based upon "political" considerations. His article may therefore underestimate the extent to which intrinsic features of the law contributed to the Anglo-Norman tenurial crisis. I at Cambridge University on December 6, 2014 Professor Holt maintains that "the inheritance of feudal property was part of the natural order of things in Norman England",1 but his arguments in support of this position are at best inconclusive. He has shown that phrases like "by hereditary right [jure hereditario)"', "by hereditary succession (per hereditariam successionem)", "in fee to him and his heirs (in feodo sibi et heredibus suis)"2 and "in fee and inheritance (in feodo et hereditate)"3 sometimes occur in Anglo- Norman charters of enfeoffment. But he has not explained precisely what these phrases meant in this period, or proved that feoffments made under these terms, like thirteenth-century gifts to a man and his heirs, gave the feoffee the entire estate and nothing to his heirs.4 In • J. C. Holt, "Politics and Property in Early Medieval England", Past and Present, no. 57 (Nov. 1972), pp. 3-52. 1 "Politics and Property", p. 9. Professor Holt also suggests that a tenant's status may have determined the strength of his hereditary title (pp. 5-6, 32-7); but this qualification is a bit unclear, since he alludes sometimes to "social" status (p. 6, n. 21 and p. 33) and at other times to "tenurial" status (pp. 6, 21 and 33) without indicating how closely "social" and "tenurial" status coincided in Anglo-Norman England. 1 Ibid., p. 37. ' Ibid., p. 39. 4 See below, pp. 122-5. POLITICS AND PROPERTY IN EARLY MEDIEVAL ENGLAND 119 addition, his remarks about the feoffinents made by the Anglo- Norman kings are not clearly supported by two of the charters that he cites. Henry I's gift to the butler, William de Albini, did not create "hereditary tenure de novd", as Professor Holt claims.5 The charter that records it concludes with the phrase "as King William my brother gave and granted to him".8 Professor Holt may also be mistaken in stating that Henry I's gift to Roger nephew of Hubert created hereditary tenure at all.' The charter recording this gift Downloaded from reads: "Know that I have given and granted to Roger nephew of Hubert the land of 'Chelca'... at farm to him and his heir in fee and inheritance (infeodo et hereditate) for his service".8 Grants to a man and his heir do not seem to have been uncommon in the earlier twelfth century. The Burton and Ramsey cartularies http://past.oxfordjournals.org/ and the Register of St. Benet of Holme all contain a number of them.0 The earliest grant in fee recorded in the Burton cartulary, for example, is one made to a man and his heir in fee and inheritance: "I G[eoffrey] abbot and the monks of Burton with me grant to this Orm and his heir in fee and inheritance (infeudum et hereditatem) 6 bovates in Stretton . .".10 The monks later granted (? the same) six bovates to Orm's son Ralph and Ralph's heir in fee farm in fee and inheritance: 1 "Politics and Property", p. 41 and notes 187 and 188. at Cambridge University on December 6, 2014 • Regesta Regum Anglo-Normannorwn 1066-1154, vol. ii, Regesta Henrici Primi 1100-1135, ed. Charles Johnson and H. A. Cronne (Oxford, 1966), no. 911 at p. 322. ' "Politics and Property", p. 41 and note 187. • Regesta, vol. ii, no. 1256 at p. 340. ' An Abstract of the Contents of the Burton Chartulary, ed. G. Wrottesley, (Collections for a History of Staffordshire, Wm. Salt Arch. Soc, vol. v, part 1, 1884), pp. 31-8 passim; The Register of the Abbey of St. Benet of Holme, ed. J. R. West, 2 vols. (Norfolk Rec. Soc, ii-iii, 1932), i, nos. 121, 124, 126, 132-4; Chronicon Abbatiae Rameseiensis, ed. W. Dunn Macray (Rolls Series, 1886), nos. 242, 248, 254-5, 3°6. 10 Burton Chartulary, p. 31. For other grants to a man and his heir in fee and inheritance or in fee, see p. 33 ("the abbot granted to him, that is to Ralph himself and his heir in fee [infeudum] . ."),p. 34 ("The abbot granted to Edda himself and his heir in fee and inheritance [in feudum et hereditatem] . ."). See also Chronicon .. Rameseiensis, no. 248 ("Know that I have granted. .. to this William . .. that land in fee [in feodum] to him and his heir . .."), and nos. 255 and 306; and Register. of St. Benet, no. 126 (". .. to him and his heir in fee and inheritance [in feudo et hereditate] . .."), no. 133 (".. in fee and inheritance [in feudo et hereditate] to him and his heir. ."). See also Charters of the Earldom of Hereford, 1095-1201, ed. David Walker (Camden Misc., xxii, Camden 4th ser., i, 1964), no. 7: "And I have granted to him the land in which he resides in fee and inheritance (in feudo et hereditate) to him and his heir and by that service ...". It should be noted, however, that the grant to Roger de Girros and his heir by the monks of St. Benet was to have been held "by hereditary right in perpetuity (hereditario iure in perpetua)": Register .. of St. Benet, no. 131. 120 PAST AND PRESENT NUMBER 65 "... we grant to this Ralph the son that land in Stretton, that is 6 bovates in fee farm (in feufirmum).... We grant that is to say to him and his heir in fee and inheritance (infeudum et hereditatem) that land in Stretton that his father Orm held .. .".1X Reginald Lennard maintained that grants to a man and his heir may have created "fully hereditary tenure", particularly if they included phrases like in feodo et hereditate; but as he noted, Round regarded them as leases for two lives, even when they included such additional phrases. 12 If Round's Downloaded from interpretation is correct, then Professor Holt may be mistaken in suggesting that no charter which includes phrases like in feodo et hereditate leaves "the issue of inheritance in any doubt"13 and in con- tending that "a non-hereditary fief was a contradiction in terms".14 Professor Holt claims that the feudal aristocracy of Normandy (and http://past.oxfordjournals.org/ presumably of Norman England as well) had "a securely embedded concept of what inheritance was",16 and that "inheritance was the received legal doctrine of Norman England".16 He has not explained, however, what this Anglo-Norman concept of inheritance was, or elucidated the legal reasoning that lies behind the usage of words like hereditas and heres in Anglo-Norman texts. Although Henry I's charter of liberties may be consistent with "the whole structure of inheritance as it is later revealed in the records of the twelfth century", it does not necessarily assume it, as Professor Holt at Cambridge University on December 6, 2014 claims.17 The author of the Leges Henrici Primi refers to "inheri- tances (hereditates)" and can thus be said to accept the heritability of real property as "an established principle";18 but as Maitland pointed out,19 his treatment of the law of inheritance is quite peculiar. It neither assumes, nor is consistent with, later inheritance law. He 11 Burton Chartulary, p. 31. For grants to a man and his heir in fee farm (sometimes with additional phrases), see ibid., p. 31 ("... The abbot granted hi i f f [i ffi] h i Willi hilf d hi hi [i di] g , g 3$ y f Agrarian Conditions (Oxford, 1959), p. 173 and p. 174, n. 1; J. H. Round, "The Burton Abbey Surveys", Eng. Hist. Rev., xx (1905), p. 279. 18 "Politics and Property", p. 37. "Ibid., p. 7. "Ibid., p. 40. "Ibid, p. 8. 17 Ibid., p. 9. 18 Leges Henrici Primi, ed. and trans. L. J. Downer (Oxford, 1972), cap. 70, sects. 18, 20, 20b (pp. 224-5), and cap. 88, sects. 13, 13a, 14a (pp. 274-7). " Sir Frederick Pollock and Frederic William Maitland, The History of English Law before the Time of Edward I, 2nd edn., 2 vols. (Cambridge, 1923), reissued with a new introduction and select bibliography by S. F. C. Milsom (Cambridge, 1968), ii, p. 267. POLITICS AND PROPERTY IN EARLY MEDIEVAL ENGLAND 121 states that a man can succeed to his deceased son's "inheritance"80 and can make an heir,21 whereas Glanvill later maintains that "only God, not man, can make an heir",22 and that land "never normally ascends".23 These passages from the Leges (and some charter evidence as well24) suggest that the Anglo-Norman concept of inheritance may have differed significantly from that of later periods. Since Professor Holt wishes to show that Anglo-Norman fiefs were heritable, he naturally has to explain "why there were no enfeofifments Downloaded from in inheritance in the first generation after the settlement of England",26 but his ingenious answer to this question has little documentary support.
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