SUCCESSION TO FIEFS IN EARLY MEDIEVAL

PROFESSOR HOLT'S ARTICLE ON "POLITICS AND IN EARLY

Medieval England"* raises many important questions about the Downloaded from history of English 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 . 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 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 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 , Wm. Salt Arch. Soc, vol. v, part 1, 1884), pp. 31-8 passim; The Register of the 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 was a contradiction in terms".14

Professor Holt claims that the feudal 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. First, after examining "the surviving acts issued or attested by the of Normandy before 1066", he argues

that Norman scribes of this period never applied formulae of http://past.oxfordjournals.org/ inheritance expressing intention to newly created lay tenancies;26 in other words, that they never described new enfeoflfments as having been made "in inheritance". He then argues that early Anglo- Norman scribes generally followed the same practice.27 In support of his first argument, however, he does not cite a single eleventh- century Norman charter of enfeoffment. Nor does he refer to any passage from an eleventh-century charter in which it would have been necessary, appropriate or meaningful for formulae of inheritance expressing intention to have been applied to a lay tenancy, but in at Cambridge University on December 6, 2014 which no such formulae are actually used. Professor Holt also claims that the of toponyms by members of the Norman and Anglo-Norman aristocracy provides "a very rough and ready minimal measure of the development of inherited estate" in Normandy and England.28 This claim is based upon his assumption that Professor Duby and other French historians have shown that members of lignages must have held their lands heritably.29

10 Leges Henrici Primi, cap. 70, sect. 20 (pp. 224-5). 21 Ibid., cap. 88, sect. 15 (pp. 274-7). 11 The Treatise on the Laws and Customs of the Realm of England commonly called Glanvill, ed. and trans. G. D. G. Hall (London and Edinburgh, 1965), book VII, sea. 1 (p. 71). «• Ibid., book VII, sect. I (p. 73). 14 For cases of men appointing heirs, see Geoffrey de Mandeville's foundation charter to Hurley (quoted by Professor Holt in "Politics and Property", p. 16). See also Chronicon ... Rameseiensis, no. 245; and Charters of the Honour of Mowbray 1107-1191, ed. D. E. Greenway (Records of Social and Economic History, new ser., i, 1972), no. 3. " "Politics and Property", p. 40. "Ibid. " Ibid., pp. 40-2. " Ibid., p. 8. »Ibid., p. 5. 122 PAST AND PRESENT NUMBER 65

In his article on cultural diffusion, however. Professor Duby is not very precise about what system of property law accompanies family structure organized "on the basis of lineage". He only alludes to "everything connected with" this type of family structure, "such as matrimonial customs, , patronymic surnames, and heraldic signs".30 In two of his other articles which Professor Holt cites, Professor Duby argues that changes in aristocratic family structure, genealogical consciousness, and degree of political Downloaded from autonomy took place when counts, or mere knights began to transmit to their sons their fiefs, which were henceforth held hereditarily.31 Despite his references to the heritability of feudal property, however, Professor Duby is not at all concerned with the

way in which fiefs passed from one member of a lignage to another, http://past.oxfordjournals.org/ or with the nature or origin of the French heir's right to his ancestor's fief. His work only shows that by about 1050 the heir of a count, or knight generally succeeded to his ancestor's fief and had some sort of right to do so.

II Professor Holt has shown that Anglo-Norman tenants by military service, like their Northern French counterparts, often succeeded to at Cambridge University on December 6, 2014 their ancestor's fiefs, that they were generally thought of as having some sort of right to do so, and that this right was sometimes described as a "hereditary" one. He has not discovered exactly what sort of right they had, nor proved that the Anglo-Norman concept of inheritance closely resembled that of the early thirteenth century. He also fails to deal with one major objection to his thesis that Anglo- Norman fiefs were heritable. Maitland maintained that in order to prove this conclusively one had to show that in this period, as in the thirteenth century, a by X to "A and his heirs" gave A a heritable estate and gave nothing to A's heirs — that is, that the words "and his heirs" were not words of purchase but words of limitation.32 Maitland also perceived one major difficulty with such

" G. Duby, "The Diffusion of Cultural Patterns in Feudal Society"5 Past and Present, no. 39 (April 1968), p. 6. " G. Duby, "Structures deparenteet noblesse. France du nord. IXe-XIIe siecles", in Miscellanea Medievalia in memoriam Jan Frederik Niermeyer (Gronin- gen, 1967), pp. 164-5 > and "Structures familiales aristocratiques en France du XIe siecle en rapport avec les structures de l'Etat", in T. Manteuffel and A. Gieysztor (eds.), L'Europe aux IX'-XI'siecles, aux origines desEtats nationaux (Warsaw, 1968), p. 60. *• See A. W. B. Simpson, An Introduction to the History of the Land Law (Oxford, 1961), p. 49. POLITICS AND PROPERTY IN EARLY MEDIEVAL ENGLAND 123

an interpretation of Anglo-Norman charters of enfeoflment. In this period, A was apparently unable to alienate part of his fee in perpetuity without the consent of his heirs;33 and the existence of this restraint at least suggested that X's feoflFment to A and his heirs gave something to A's heirs. This in turn implied that on A's death, his heir B succeeded to A's fief by the form of X's gift and did not inherit from A. Maitland claimed that only by the early thirteenth century, when restraints on the tenant's power of alienation had disappeared, did it Downloaded from become "plain" that the words "and his heirs" did not give the heir any rights, did not decree that the heir must have the land. They merely showed that the donee had "an estate" that would endure at least so long as any heir of his was living. If on his death his heir got the land, he got it by inheritance and not as a 34 person appointed to take it by the form of the gift. http://past.oxfordjournals.org/ Maitland, of course, ultimately took the position that fiefs were heritable from the time of the Conquest,36 but in the passage quoted above he laid part of the foundation for Professor S. E. Thome's later claim that "the military fief was not heritable until about the year 1200 and [previously] its tenant held merely an estate for life".36 Professor Holt devotes several pages of his article to the problem of the alienability of the fief, but he only discusses rules governing a tenant's alienations to his younger sons and the gradual disappearance of the distinction between his "inheritance" on the one hand, and his at Cambridge University on December 6, 2014 "acquisitions", "purchases" or "conquests" on the other.37 Two of his remarks about this aspect of the problem of alienability seem questionable. First, it is hard to see how the passage that he cites from the Leges Henrici Primi can be regarded as an "official" statement of a distinction between inherited and acquired property.88 This treatise had no "official" status; it contains only one truly "official" document (Henry I's charter of liberties); and it is the work of a man

83 On these restraints, see Pollock and Maitland, History of English Law, ii, pp. 13-14 and 308-13. See also S. E. Thorne, "English Feudalism and Estates in Land", Cambridge Law JL, new ser., vi (1959), pp. 193-209. On family restraints on alienation in northern France, see Louis Falletti, Le retrait lignager en droit coutumier francais (Paris, 1923), esp. chapter i; and J. de Laplanche, La riserve coutumiire dans I'anden droit franfais (Paris, 1925). 84 Pollock and Maitland, op. cit., ii, pp. 13-14. 35 Ibid., p. 314. For a discussion of Maitland's views on the problem of the heritability of the fief, see Thorne, "English Feudalism", pp. 193-5. 3e Ibid., p. 195. Professor Milsom's writings on twelfth-century property law tend to support Professor Thome's position. See S. F. C. Milsom, Historical Foundations of the Common Law (London, 1969), pp. 88-93 ond 103-19, and his "Introduction" to Pollock and Maitland, op. cit., i, pp. xxvi-xlix. " "Politics and Property", pp. 12-21 and 41-4. 38 Ibid., p. 12: italics mine. 124 PAST AND PRESENT NUMBER 65 whose official status and legal training are unknown.39 Second, Professor Holt may be wrong in claiming that this distinction between a tenant's "inheritance" (which had to pass to his eldest son) and his "acquisitions" (which he could give to whomsoever he wished) was "certainly current in northern and western France at the time of the conquest of England".40 Louis Falletti maintained that the principle that acquisitions were freely alienable was known but not well- established in eleventh-century northern France.41 Downloaded from More importantly. Professor Holt's discussion of alienability is open to criticism because it is incomplete. Since he says nothing directly about restraints on a tenant's power to alienate to people other than his sons, or about the disappearance of these restraints in the later twelfth century, he is unable to rebut Professor Thome's contention http://past.oxfordjournals.org/ that Anglo-Norman law recognized succession by hereditary right, but not inheritance.42 As Professor Holt points out,43 Professor Thome's article on "English Feudalism and Estates in Land" is not concerned with the practice of inheritance, but the distinction that he makes between succession and inheritance may have some practical ramifications. If an heir (2?) succeeds to the fief of his ancestor (A) and does not inherit it, then he takes it from A's (X) free of any gifts that A had made.44 If B is then legally bound to renew any feoffments made by A, the distinction between succession at Cambridge University on December 6, 2014 and inheritance may not be of major practical significance — at least with respect to feudal tenures.45 But it seems quite possible that in the Anglo-Norman period B was not always automatically bound to recognize A's feoffments (not to mention A's gifts in free alms) and that as a result the position of A's feoffees was not very secure in certain cases. First, suppose that A alienates most of his fief to P in perpetuity without S's consent and takes P's . After A's death, can B claim all or part of the land now held by P? By the early thirteenth century, he can make no such claim, or if he does he will fail; and in the later twelfth century, the homage that A had taken from P will bar B from entering on P.46 It is not clear, however, that this so-called "homage-bar" existed in the Anglo-Norman period. Nor is it clear

" See Downer's "Introduction" to the Leges Henrici Primi, pp. 2-5 and 37-44. 40 "Politics and Property", p. 14. 41 Falletti, Retrait lignager, p. 22. 41 Thorne, "English Feudalism", p. 198. " "Politics and Property", p. 3. 44 Thome, "English Feudalism", p. 197. 46 On gifts free of service, see ibid., pp. 204-6. 41 Ibid., pp. 200-4. POLITICS AND PROPERTY IN EARLY MEDIEVAL ENGLAND 125 that the homage-bar was always absolute — that is, that the homage that A had taken from P would bar B from reclaiming a gift to which he had not consented, which was unreasonable, and which could be thought of as disinheriting him. It seems possible, therefore, that in the early twelfth century B might complain that he had not consented to A's gift to P and that the gift was unreasonable and/or disinherited him, and he might have been able to reclaim at least part of P's land. Secondly, suppose that A alienates most of his fief to P in Downloaded from perpetuity with B's consent and takes P's homage. Then, in the Anglo-Norman period and in later times, B can claim nothing from P after A's death. If he is not barred from doing so by the homage that A took from P, he will almost certainly be barred by his own

consent. But suppose that B predeceases A and that A is succeeded http://past.oxfordjournals.org/ either by his second son (B1) or by B's son (C). Can either B1 or C claim anything from P? In the early thirteenth century, neither can47 but in the earlier twelfth century, B's consent may not bar B1 or C from making a claim against P.48 In these cases, early thirteenth-century law probably gave tenants like P greater security than Anglo-Norman law and thus may have given them greater legal protection in periods of tenurial instability. This greater security can be seen as stemming, at least in part, from the fact that the thirteenth-century heir's rights differed from those at Cambridge University on December 6, 2014 of his Anglo-Norman counterpart. Whereas the former clearly had a right to inherit from his ancestor, the latter may have had a right to succeed to his ancestor's fief under the form of the gift to his ancestor. In the early thirteenth century, therefore, a donee may have been better protected against the claims of his donor's heirs than he was in the Anglo-Norman period.49

Ill Professor Holt proposes three ways of reconciling the "apparent contradiction" between the fact that "the inheritance of feudal property was part of the natural order of things in Norman England" "See Pollock and Maitland, History of English Law, ii, p. 311. " See ibid., pp. 310 and 312-13. In his discussion of the laudatio parentum in northern France, Falletti states that by giving his consent to a relative's gift, a man barred only himself: Retrait lignager, pp. 25 and 41. " Professor Milsom adopts a similar view. He maintains that a feoffment to a man "and his heirs" gave "a legal right of some son to the heirs, and this was not the same as giving 'ownership' to the tenant. The difference comes over an alienation; and it was only indirectly that the tenant for the time being at length acquired a power to alienate without regard to the claims of his heirs". Historical Foundations of the Common Law, p. 92. 126 PAST AND PRESENT NUMBER 65 and the fact that "even the greatest in the land might suffer disposses- sion, and his family disinheritance".60 1. "No law governing title and inheritance" existed in this period. 2. Such law existed but kings (and possibly other ) "flouted it". 3. Such law existed, but kings (and possibly other lords) encountered and created "difficulties ... in applying it".61 Professor Holt argues for the third position,62 and claims that "the Downloaded from separation of England and Normandy in 1087"53 led to the "intrusion" of political considerations into legal decisions.64 He has ignored, however, two other ways of accounting for his "apparent contradiction": first, Anglo-Norman law may not have given adequate security to tenants like P in the cases discussed above, or in other http://past.oxfordjournals.org/ cases like them; and secondly, Anglo-Norman courts may have taken legal notice of facts whose consideration he regards as political intrusions. Confronted by the "important legal problem" posed in book vn of Glanvill, for example, the members of an Anglo-Norman court might not have decided the case as "those learned in the law of the realm" of Henry IPs court apparently did (or tried to) — by debating the proper application of the "general rule .. . that no man can be both heir and lord of the same tenement".65 Instead, they might have at Cambridge University on December 6, 2014 taken notice of the personal qualities of the disputants, their feudal ties with other lords (such as the of Normandy), and their relative abilities and willingness to pay a substantial relief— all issues which Glanvill's discussion ignores and of which the possessory and proprietary actions would have taken no notice. A decision by an Anglo-Norman court based upon such considerations need not be regarded as an illegal or extra-legal one which resulted from the "intrusion" of political or personal considerations into a legal judge- ment. Rather, it may reflect the fact that Anglo-Norman law generally recognized the legal rights of the heirs of a deceased tenant by military service, as later law did, but that unlike later law, it sometimes recognized the right of the deceased tenant's lord to decide, in consultation with his , which of these rights, if any, to recognize and upon what terms.

0 "Politics and Property", p. 9. 1 Ibid., p. 44. 'Ibid. Ibid., p. 37. 4 Ibid., p. 20; cf. pp. 21 and 22. 5 Glanvill, book VII, sect. 1 (pp. 72-3). POLITICS AND PROPERTY IN EARLY MEDIEVAL ENGLAND 127

IV If Anglo-Norman law gave military tenants less security of property in some cases than later English law and sometimes took legal notice of what would later seem to be extra-legal issues, then Professor Holt's conclusions about the causes of the Anglo-Norman tenurial crisis may require some slight modification, so as to allow for the possibility that

inherent features of Anglo-Norman law may have heightened, if they Downloaded from did not create, that tenurial crisis. Harvard University Stephen D. White

POLITICS AND PROPERTY IN EARLY http://past.oxfordjournals.org/ MEDIEVAL ENGLAND: A REJOINDER

I USED THE WORD "CRISIS" QUITE PRECISELY AS A SHORTHAND description of a situation many of the features of which have been well known to historians from Ordericus Vitalis on to J. H. Round, his successors and critics. To summarize: succession to estates in

the Anglo-Norman realm involved a distinction between inheritance at Cambridge University on December 6, 2014 and acquisition, the application of which depended on the number of male children and the policy of particular families; this distinction was applied to the royal/ducal house in 1087, so that political loyalty was at odds with the way in which tenancies-in-chief had descended, and influenced, sometimes determined, the way in which such estates were to descend; necessarily the conflict affected the law of property and had a prolonged aftermath. That, very baldly, was the crisis. It began in 1087 after some preliminary symptoms. It ended in 1106 with recurrent complications and minor outbreaks thereafter. It recurred under Stephen because of a genealogical accident con- sequent upon a shipwreck. I am at a loss to understand how Dr. King can claim that what I say about the Anarchy is central to my argument. I happened to illustrate some of the disputes of the first half of the twelfth century by examples chosen from the time of Stephen.1 My intention was to indicate the variety and complexity of family claims. I also stated that they played an important part in the politics of the Anarchy, which is correct. That some of them were resolved by agreement 1 "Politics and Property in Early Medieval England", Past and Present, no. 57 (Nov. 1972), p. 22, n. 99.