English Legal History
2/24/2009
Outline

 

I. SLIDES

 

 

 

 

 

 

 

 

 

 

 

 

 

  

II. THE CONSEQUENCES OF THE ASSIZES OF HENRY II

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

A Glimpse at Norman and Angevin Culture and
The consequences of the assizes of henry II

 

1.

The White Tower (London)

2.

Rochester

3.

Pevensey in Sussex

4.

Kilpek in Herefordshire

5.

Durham cathedral

6.

Salisbury cathedral (slide missing)

7.

Tracery from the chapter house (Lincoln)

8.

An image of the king

9.

An image of parliament

10.

Bracton’s tomb

 

1.

Some 15th century definitions:

 

a.

fee simple “to A and his heirs” the highest estate, freely alienable, not devisable, descendible generally

 

b.

fee tail “to A and the heirs of his body” it may descend only to A’s issue, freely alienable but the alienee takes subject to the interest in the heirs of A’s body

 

c.

dower is a life estate in the widow in 1/3 of all lands of which her husband was seized at any time during the marriage in fee simple or fee tail, which land the heir of the marriage, had there been any, could have inherited

 

d.

curtesy is a life estate in the widower in all of the lands of which his wife was entitled to be seized during the marriage in fee simple or fee tail, which the heir of the marriage could have inherited, so long as a child is born to the marriage who cries to the four walls.

2.

The operation of warranty: 

 

a.

Lord A seizes Tenant B of land and takes his homage. Then he seizes tenant C of the same land and takes his homage.

 

 

i.

Tenant B on the land Tenant C. brings a writ of right in Lord A’s court. If A tries to put C on the land novel disseisin. If A defaults, tolt and pon; C vouches A.

 

 

ii.

Tenant C on the land Tenant B brings writ right in Lord A’s court. Same possible two results. This means that Lord A can’t do right.

 

 

iii.

Lord A dies; fitz A held to the same thing

 

 

iv.

Tenant B dies; fitz B does the same with mort d’ancestor

 

 

Therefore, free alienability inter vivos is the consequence of warranty.

 

b.

Lord A leaves the land to Tenant B in his will.

 

 

i.

If B gets on the land before fitz A, fitz A sues him in mort d’ancestor.

 

 

ii.

If fitz A gets on the land before B, B sues a writ of right in fitz A’s court, but with a difference: Fitz A has no obligation to honor B’s claim, because there’s no warranty to B. Why? No homage. You can’t do homage to a dead man, and fitz A is not bound to warrant his ancestor’s will.

 

 

Therefore no devisability is a consequence of warranty.

 

c.

Tenant B seizes Subtenant C of the land and takes his homage. Lord A does not like Subtenant C.

 

 

i.

If Subtenant C is on the land, he is protected by novel disseisin; if he is not, he is protected by writ of right (this time brought in B’s court), and his heir is protected by mort d’ancestor unless Tenant B defaults in service.

 

 

ii.

If Tenant B tries to substitute Subtenant C for himself, then Lord A still has discretion; hence almost all conveyances are by subinfeudation.

 

d.

Prittlewell case

28:M04—Hugh Butler mort d’ancestor vs. C. de P., she essoins

29:M04—H. de P. essoins v. H. Butler in plea of homage

30:M04—H.B. vs. C. de P. the assize comes, she vouches H. de P.

 

e.

Walter de Grancurt’s case—no.46

 

 

i.

He gave the land to Hugh de Candos along with Ascelina; suppose Hugh had survived Ascelina; if W. took Hugh’s homage case proceeds as above; if he did not, Hugh is still entitled by the curtesy of England.

 

 

ii.

Now we’ll see why he may not take Hugh’s homage. Hugh de Candos and Ascelina die without heirs of their bodies—the land should revert to Wm. and his heirs, but if he’s taken Hugh’s homage what is to prevent Hugh’s heir general from claiming warranty? — thus the 3–generation maritagium—K Glanvill says in the church courts

 

 

iii.

Hugh and Ascelina convey to Sir Hugh Polstead and take his homage; then little Juliana tries to claim that she is H & A’s heir; she’s s.o.l. that’s Bracton’s rule->formedon

 

 

iv.

What happened here?  Walter tries to take the land back and is sued in mort d’ancestor—the real issue is are Ceclia and Juliana entitled—possible that Walter thought the land limited to male heirs

 

f.

Thus, the logic of warranty made for a system in which all free holdings were freely alienable but not devisable. The logic of warranty came to attach to the endowment at the church door leaving the heir compelled to warrant both his mother/stepmother and the gifts of his ancestor, and curtesy can be seen as the almost inevitable consequence of the fact that the lord normally took the homage of the husband of the heiress. Already by the beginning of Henry III’s reign the lord’s relation to the land has become considerably more tenuous than what it had been fifty years earlier.

3.

What’s left for the lord?  Knights’ fees commuted to money early—wardship, marriage, relief, escheat—let’s go back to example (2)(c))

 

a.

Tenant B has a younger brother Subtenant C whom he seizes and takes his homage for a rose at midsummer; Tenant B than dies and his heir is a minor; Lord A gets a lot of roses at midsummer.

 

b.

Suppose Subtenant C dies and leaves a minor heir; he’s in his grandfather’s wardship and Lord A is s.o.l. —> Quia Emptores

4.

Now we’re ready to look at the statutes (Mats. pp. V-12 to V-13):

 

a.

De Donis —> formedon in the descender

 

b.

Quia Emptores —> end of subinfeudation

5.

What we suggested gives us the answer to some very curious aspects of all of these:

 

a.

The fee simple is freely alienable and not devisable because of the logic of warranty. The development had already taken place around the beginning of the 13th century. The statute Quia Emptores simply put an end to a practice whereby lords were being deprived of the feudal incidents, the only thing about lordship that was worth much any more; it did so by abolishing subinfeudation. All conveyances of the fee must be by way of substitution. The lords gave up their now nominal right to object to new tenants.

 

b.

De Donis is the product of a much more complicated development, that begins with the gift in maritagium. Because no warranty is taken in such gifts, the law must develop rules shorn of the key element that it has used in other areas. First comes curtesy, what would have happened if the lord had taken his son-in-law’s warranty. Then comes the curious rule that upon the birth of issue the couple have the right to alien the fee simple. This is reversed by the statute De Donis that says that if this happens the heirs of the body of the couple may bring a new form of action called formedon in the descender to get it back. The statute also confirms the practice of allowing actions of formedon in the reverter, for the father to get the land back if the issue die out, and formedon in the remainder, to allow the father’s alienee to get the land back if the issue die out.

 

c.

Dower and curtesy are seen as rather old consequences of the logic of warranty, the first from the extension of warranty to benefit the dowager and the second the logical consequence of the fact the lord will normally take the homage of the husband for the wife’s land.

6.

There may not be time for this in class, but it’s certainly worth thinking about:

 

a.

According to Plucknett (Legislation, pp. 131–5) the statute De Donis is perfectly clear up to ‘henceforth observed’. At this point it descends into a total mess that seems to confine formedon in the descender to the first generation of issue in tail. It then proceeds to talk about ‘such woman’, though no woman has been previously mentioned. To Plucknett this suggested that the statute was amended to take out a phrase that dealt with women and to substitute a phrase that was intended, clumsily, to limit the tail to the first generation. Hengham who was the draftsman of the statute could not have been responsible for this, and Edward I and his council, concerned about dynasties (compare E’s dealings with his own son-in-law), may have been. Be that as it may, Beresford’s dictum 25 years later is amazing, but it does correspond to what we know about the 4 generation entail. According to Plucknett it is not until 1410 that we get a clear indication of the unbarrable entail. He does not add, though he might have, that by 1410 ways were being found that were to culminate in the common recovery to bar entails by clever manipulation of warranties.

 

b.

Aumeye’s Case (1305), Y.B. 33–35 Edw. 1, p. 82: Hengham, CJ: “Do not gloss the statute, for we understand it better than you; we made it.”

 

c.

Belyng v. Anon. (1312), Y.B. 5 Edw. 2, SS vol. 31, p. 176 (C.P.), Sources: pp. 52–3: “Bereford: He that made the statute meant the issue in tail to be within the statute as much as the feofees until the tail should [become fee simple] in the fourth degree. And it was only by his oversight that he did not bring the issue by express words in the statute. So we shall not abate this writ.”

 

 

 

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