History in Deed

Medieval Society & the Law in England, 1100-1600

Preface
Curator's Preface
Introduction

Preface

Shortly after my arrival at the Harvard Law School in 1988, I came across ten mysterious black boxes tucked away in a dark corner of the Treasure Room stacks. After wiping off a considerable accumulation of dust, I cautiously opened one of the boxes. Inside was yet another mysterious package wrapped in yellowed newspaper. Like an excited child on Christmas morning, I peeled back the several layers of newspaper and uncovered, to my great delight, the wonderful collection of deeds which is at last being exhibited to the public for the first time.

The collection has an uncertain provenance. We know that the items were collected by the English antiquarian Frederick Arthur Crisp over many years and sold by him to A.T. Butler of the Royal College of Arms from whom they were purchased by the Harvard College Library in 1923. They were later transferred to the Law Library in 1925. Seymour De Ricci in his Census of Medieval and Renaissance Manuscripts in the United States and Canada notes that Theodore F. T. Plucknett, Professor of Legal History at the Harvard Law School from 1923 to 1931, provided basic cataloging to the collection which was never presented in published form.

These materials are attractive on several levels. One does not need to know the language or read the sometimes cryptic writing to appreciate their primordial character. The exhibit aptly demonstrates the importance of the documents to understanding the story of this time, the place, and its people. The items tell us much about how classes of people survived in an agrarian monarchy, how the land provided their sustenance, how the family unit was composed, what place the church had in their lives, and what status women held.

I claim no special or specific knowledge of these items. I have been fortunate in leaving their care to the expertise of Carol Symes who has been meticulously cataloging the collection for their ultimate use by the research community. Her high level of scholarship is clearly demonstrated by the caliber of this exhibition and its catalog.

Thanks are extended to the Georges Lurcy Charitable & Educational Trust whose generous support made this exhibit possible. I am indebted to Professor Charles Donahue who contributed the introduction to this catalog. I am also indebted to David R. Warrington, Librarian for Special Collections, for his continued support of our work with these vital records; to Mala Conrad of the Harvard Map Collection; and especially to Ethan Thomas, Associate Director of Administrative Publications, for his artistic sense, good humor, and hard work.

This exhibition is dedicated to Samuel Thorne, Charles Stebbins Fairchild Professor of Legal History, Emeritus.

David de Lorenzo

Curator of Manuscripts and Archives

Harvard Law School Library

October 13, 1993

Curator's Preface

I have been spared the difficult task of composing an Introduction to this catalog by the kind offices of Professor Charles Donahue, whose knowledge of medieval English charters and of the law which gave them life far surpasses the modest familiarity which I have achieved through a year's perusal of the materials in this collection. Yet it must not be supposed that he is in any way responsible for the errors and misjudgments which may lurk in the following pages--they are my own. Notwithstanding the originality of my mistakes, I must acknowledge the debts I owe: to the staff of Special Collections, whose interest in the project I received with joy and verbosity; and to Gregory Pass, my colleague and husband, who listened to a thousand questions and answered as many as seemed reasonable.

Carol Symes

Introduction to the Exhibit Catalog

by Professor Charles Donahue, Jr.

Harvard Law School

Most of the documents in this exhibition are technically described as charters Our word charter is derived from Latin charta, which means simply a piece of reed-paper (papyrus). In northern Europe, where reed-paper was rare and parchment the normal medium for recording important writings (see Case II), the word charter came to mean, first, any single-sheet document, and, then, certain specific types of legal documents, such as royal grants (like Magna Carta) or agreements between individuals, frequently those involving the conveyance of land. It is in this last sense that the word is used in this exhibition.

The use of writing to record legal transactions is almost as old as writing itself. The same cuneiform syllabary that records the code of Hammurabi also records the most mundane of Mesopotamian legal transactions. As is the case with many other legal matters, the Romans made prodigious advances in recording legal transactions involving land. Even with the fall of the Roman Empire in the West, the art of committing ordinary land transactions to writing was never completely lost in the area around the Mediterranean. Italian charters from the period known as the dark ages show that surveyors and professional scribes (the ancestors of the modern notaries) were still practicing, and the fact that these charters were preserved shows that the concept of written muniments of title also survived.

Whether Roman practices with regard to land transactions survived in Northern Europe is a more controversial question. It has recently been argued that charters from as far north as modern Belgium from the seventh to the ninth centuries show traces of Roman conveyancing practices. In the case of England, however, we can be reasonably confident that all knowledge of Roman conveyancing practices was lost in the centuries that followed the Anglo-Saxon invasions (fifth and sixth centuries). When the Anglo-Saxons began to book land transactions in the seventh century, that practice represented a new beginning, although it may have been a beginning that was influenced by surviving Roman practices on the Continent.

The Normans who conquered England in the mid-eleventh century adopted many Anglo-Saxon governmental and legal practices, and there may be some continuity between the forms of the charters that we find after the Norman invasions and those that had been used immediately before the invasions. Practices with regard to land tenure, however, changed substantially in this period. The Anglo-Saxon Land book was not well adapted to the Anglo-Norman forms of feudal tenure. For these forms of tenure, the critical thing was what lord had seised what man of what land for what services. Thus, although the matter is controverted by specialists, it would seem that the Norman methods of recording land transactions in writing represent another new beginning, a beginning that was probably more influenced by practices in Normandy than by practices in England before the Conquest.

The Harvard Law School collection of charters contains examples close to this new beginning of English charter-writing. From this beginning we can trace in the same collection the development of the forms of land transaction right down to the present day. This exhibition begins with some of the earliest examples and follows the forms into the early modern period, when they display characteristics which, though different from those in use today, are recognizably the ancestors of those in use today. The question, then, is not how we get from the seventeenth century to the forms in use today, or at least to those in use in the nineteenth century--that story is relatively easily told. The question is how do we get from the strange and cryptic forms that we see in Case I to those of the seventeenth century?

If we pause for a moment at the first charter in Case I (No. 1, c. 1180), much about it should seem strange. William del Turp is granting about fifteen acres of land to Simon son of Robert. But the grant has already taken place; indeed, it may have taken place many years previously, when William granted the land to Simon's father Robert. But even though William granted the land to Robert, he was still very much concerned with it. The grant was by way of subinfeudation (as almost all grants in this period were). William remained lord of the land. Simon was required to discharge The free external service (liberum forense servicium) for this amount of land. The precise meaning of the phrase Free external service is unclear. It probably refers to the services that William owed to his lord for the land. Not only did William remain lord of the land; he also remained vitally concerned about who was on the land. When Robert died, his son Simon ought to have inherited. Everyone would have agreed to that. But the inheritance does not take place automatically. Simon must do homage to William (something that is assumed and not stated in the charter), and the fact that William has accepted Simon as Robert's heir is sufficiently important that a charter will be made memorializing the event. In all probability in this period, William will also seise Simon of the land, i.e., put him in physical possession of the land. It is this act, and not the charter, that gives Simon title.

The events described in the charter would have taken place in William's court. William's other tenants would have been present. (They may be among those named as witnesses, although we should be cautious about this statement until more work is done with the difficult place-names by which the witnesses are identified.) The seisin of Simon would have been noted by all in the village. If a dispute had arisen at a later date, the memory of the tenants and of the other villagers would have been just as important, if not more important, for proving what had happened. Many such transactions would not have been memorialized in writing at all.

Some of the transactions in Case I, however, are of a kind where it was particularly important that there be a written memorial. The lease of the land in charter No. 2 (12th c.), for example, is one such transaction. Here the service is not the customary one but the payment of a money rent. Memories are likely to be particularly defective when it comes to remembering a sum agreed to at the time and set without relation to custom. Similarly, the reservation of the easement (iter, a misuse, in this context, of a Roman technical term for a type of right of way) in Charter no. 3 is also particularly important to memorialize in writing. The seisin of the land has been transferred from Robert to Richard. The charter constitutes the only visible evidence of the reservation.

The thirteenth century sees parallel developments in the land law and in the writing of charters. We noted that in 1180 (No. 1) it was important to memorialize the fact that the lord of the land had accepted the tenant's heir. In 1180, the central royal courts were already intervening in the affairs of the lords' courts to ensure that lords performed their obligations to their tenants, including accepting the tenants' heirs. By 1280, such intervention had become routine. The lords courts no longer had any discretion whether to accept the tenant's heir or not. If the heir met the legal requirements of heirship, he (or she if there were no he) must be accepted. At the same time the services owed by free tenants increasingly came to be expressed in terms of money payments. Once established these money payments became fixed, and hence tended to decrease in value with inflation (a process that was sufficiently gradual in the Middle Ages that it was not consciously perceived). The process of subinfeudation led to ever longer chains of feudal tenures and had the tendency to deprive the original grantors of land of the incidents of tenure (still measured in kind) that were due the lord when the property passed from ancestor to heir. In 1290, the statute Quia Emptores abolished subinfeudation. Transfers from then on would take place by way of substitution, the new tenant moving in to take the place of the old tenant in the feudal hierarchy. Lords gave up their right to object to new tenants, but were made more secure in their possession of the feudal incidents.

These developments in the law and in the writing of charters are both illustrated by the first charter (No. 36, c. 1290) in Case III, which may be dated on the basis of its handwriting to the late thirteenth century. William Miller (or, perhaps, William the miller) is making a family property settlement, granting a house and adjacent land to his son Simon (perhaps on the occasion of his son's marriage). William technically remains lord of the land. But the son is substituted in his place in all but name. The charter tells us that the son is to render the annual fixed money payment to the Chief lord of the land and to attend two courts held by the chief lord each year. The charter thus comes from the period just before the statute Quia emptores, or it comes from just after the statute when conveyancing practice had not yet caught up with the requirements of the statute. In further contrast to the charters of the twelfth century, the language of charter No. 36 is dry, precise and routine. It says everything that needs be said and nothing more. Charter-writing has become professionalized. This is the period, as one legal historian has somewhat inelegantly put it, of the Emergence of the flat-arsed conveyancer.

In the latter Middle Ages conveyancing took an odd turn, dictated by the practice of making feoffments to uses. We noted above that lords retained the right to substantial payments in kind when the land was transferred from ancestor to heir. Further, for a complicated series of reasons also related to lordship, it was not possible to devise (convey by will or testament) most types of English land (land in boroughs and cities being the major exception). The feoffment to uses, nicely illustrated in charter No. 31 (Case II, 1483) avoided the payment to the lord and permitted, in effect, the devise of land. Charter No. 31 begins as if it were a grant in fee simple to three men, John, Thomas and Robert. On the fold for the seal tag, however, in English, the grantor, probably in his own hand, says that Thomas and Robert are to Make estate to John and Margaret for their joint lives and then to the heirs of Margaret. John, Thomas and Robert are the feofees to uses. (The fact that the grantor attorns Thomas, i.e., transfers his services to the new grantees, suggests that Thomas was also a tenant of the land under a lease.) It is understood that John, Thomas and Robert will not have any beneficial interest in the land as a result of the grant. In all probability, the grantor will retain the beneficial interest in the land throughout his lifetime. Upon his death, Thomas and Robert will then convey their moieties to John and his wife Margaret (who is probably the grantor's daughter) and to the heirs of Margaret (the grantor's grandchildren, if all goes well). None of this is stated in the instrument with the precision with which we just stated it. The arrangement is not so much illegal as extra legal, although by 1483, it will be enforced in the chancellor's court. (Charter No. 30 is a more complicated example of the same type of transaction.)

The last major development in conveyancing illustrated in these charters is best seen in the large instrument (No. 35, 1611) in Case II. In 1536, the statute of uses declared that the legal ownership of property must follow the beneficial. Hence, the grant in No. 31, if it had been executed after 1536, would have given the grantor the legal as well as the beneficial interest in the land, and his arrangements for his daughter and son-in-law would not have taken place. Rather, his heir (who may well have been someone other than his daughter) would have taken the land upon his death, and the lord of the land would have been entitled to the feudal incidents. The inconvenience of this result from the point of view of the grantor was mitigated by the fact that in 1540 parliament passed a statute allowing the devise of most English land. The consequences of the statute of uses, however, soon came to be exploited by conveyancers. Since the passage of the beneficial interest would bring the legal interest along with it, it became possible to transfer ownership of land without the accompanying livery of seisin. Note that in charter No. 31, the grantor is careful to appoint an attorney actually to transfer the seisin of the land to the three men. Otherwise they would not have had the legal interest, and the whole deal would have collapsed. After the statute of uses, a simple bargain and sale deed would effectively transfer the beneficial interest to the grantee, and by the statute the legal interest would follow automatically. Hence, livery of seisin was not longer necessary. The statute, then, marks, in some sense, the first time in which the charter itself conveys a freehold in the land, rather than simply memorializing something that has happened or will happen elsewhere. It was not until the statute of frauds in 1677, that a charter was required to transfer a freehold interest in land, although by this time very few people were still conveying land by means of livery of seisin.

This collection of documents, then, illustrates in a quite dramatic way the major changes that took place in English land law and conveyancing practice over the course of five centuries. It illustrates, however, much more than that. As Ms. Symes' arrangement of the material shows, a group of documents like this tells us much about social life, about the history of families, about the relationship of town and countryside, about religion, and about a wide variety of concerns of the people of the time. As is, I hope, fitting for a introduction to an exhibition in a law school, we have focused here on the line of legal development. I must say in closing, however, that without the context into which Ms. Symes has put the documents, the legal development appears disembodied and mechanical. The legal development does have a life of its own, but that life makes little sense unless we put it into the context that our group of grantors and grantees give it.

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