IX. The Statutes of Edward I
The origins of the common law came between 1176 and 1215. For decades thereafter the common law grew, whether by chancery action, judicial action, or legislative activity. By the second half of the thirteenth century the social and legal anomalies produced by piecemeal growth had become serious. The problems were such as to focus attention on the central government. Parliament became an institution in 1258, acting to answer petitions from people experiencing difficulties with the law, legislating general answers to difficulties, responding to demands for taxation. Parliament, it should be noted, was centered on the king's council, although the enduring elements that would soon constitute Parliament were king, the magnates (soon the House of Lords) and representatives of both the counties and boroughs (soon the House of Commons). The king was absolutely essential to Parliament, and Parliament exercised only the king's authority. Those who were elected, were selected to enter into that sphere of governance that the king had constituted to help him exercise his powers of governance. That he would solicit such help was the contribution of feudalism: a strong lord acted with the consultation and advice of his men. Still, there was no notion of popular sovereignty, that the ultimate responsibility for governance was in the people and they conferred their authority to govern to their representatives. They were subjects, not citizens. There is important substance in those different terms. The following are some of the more important statutes of King Edward's Parliaments.
IX.A. Quia Emptores (="Because Purchasers") [8 July 1290]
Because purchasers of lands and tenements belonging to the fees of magnates and others have often in times past entered into their fees to the prejudice of those magnates and others, in that their free tenants have sold their lands and tenements to the purchasers to be held in fee by them and the heirs of their feoffors and not of the chief lords of the fees, whereby the same chief lords have very often lost escheats, marriages and wardships of lands and tenements belonging to their fees, a thing which seemed to those magnates and other lords exceedingly hard and hard to bear and tantamount in this case to manifest disinheritance, the lord king in his parliament at Westminster after Easter in the eighteenth year of his reign, namely on the quindene of St. John the Baptist, at the instance of the magnates of his kingdom, granted, provided, and enacted that henceforth it is to be lawful for each free man to sell at will his land or tenement or part thereof, so, however, that the feoffee shall hold that land or tenement of the same chief lord and by the same services and customs his feoffor previously held them by.2 And if he sells some part of those lands or tenements of his to anyone, the feoffee shall hold it immediately of the chief lord and be charged at once with as much service for that portion as pertains or ought to pertain to the same lord in accordance with the amount of land or tenement sold; and so in this case, that part of the service which is exactable by the feoffor shall fall to the chief lord, since the feoffee ought to be intendant and answerable to the same chief lord, according to the amount of land or tenement sold, for that portion of the service so due. And it is to be understood that by the aforesaid sales or purchases of lands or tenements, or any part of them, those lands or tenements can in no way, in part or wholly, come into mortmain, by art or artifice, contrary to the form of the statute ordained on this some time ago etc. And it is to be understood that the present statute is applicable only to lands sold to be held in fee simply and that it applies to the future; and it will begin to take effect at the next feast of St. Andrew etc.
1. Was the perceived problem resulting from grants by substitution or by subinfeudation? What was the damage being caused?
2. Worry about what have been called the "feudal incidents" (wardship, marriage, relief, etc., instead of service) is interesting, in that the heart of the relationship has been eaten out, so that what lords are concerned with in the feudal relationship with land (not with other patronage relationships) is increasingly with those incidental matters that had served to secure the relationship.
3. What does this statute do? Can one subinfeudate anymore? What will happen as knightly families die out? Do you see why historians point to Quia Emptores as the last possible date at which one can talk about the decline of land-oriented feudal relationships? Does this give rise to sales of land, free alienation, relatively as we know it?
4. What is mortmain? why is it a problem here?
5. The statute is said to apply only to land given "in fee simply"; remembering that a fee is heritable, read the following statute, "De Donis", to figure out what a fee not given simply is.
IX.B. De Donis (="Concerning Gifts")[Statute of Westminster II, c. 1, 1285]
First, concerning tenements which are often given upon condition, that is, when someone gives his land to some man and his wife and the heirs begotten of the same man and woman with the added condition expressed that, if the man and woman should die without heir begotten of them, the land so given should revert to the donor or his heir; also in the case when someone gives a tenement to somebody and to the heirs issuing of his body:
it seemed, and still seems, hard to such donors and heirs of donors that their wish expressed in their gifts has not heretofore been observed and still is not observed. For in all these cases, after offspring begotten and issuing from those to whom the tenement was thus conditionally given, these feoffees have hitherto had power to alienate the tenement so given and to disinherit their own issue contrary to the wish of the donors and the form expressed in the gift. And further, when on the failure of the issue of such feoffees the tenement so given ought to have reverted to the donor or his heirs by the form expressed in the deed of such a gift, notwithstanding the issue, if any there were, had died, they [the donors] have heretofore been barred from the reversion of the tenements by the deed and feoffment of those to whom the tenements were thus given upon condition, which was manifestly against the form of their gift. Wherefore, the lord king, perceiving that it is necessary and useful to provide a remedy in the aforesaid cases, has enacted that the wish of the donor, according to the form manifestly expressed in his deed of gift, is henceforth to be observed, in such wise that those to whom the tenement was thus given upon condition shall not have the power of alienating the tenement so given and thereby preventing it from remaining after their death to their issue, or to the donor or his heir if issue fail either because there was no issue at all or because if there was issue it has failed by death, the heir of such issue failing. Neither shall, henceforth, the second husband of such woman have anything by the curtesy after the death of his wife in a tenement so given upon condition, or the issue of the woman and second husband have hereditary succession, but instead immediately after the death of the man and woman to whom the tenement was so given, it shall revert after their death either to their issue or to the donor or his heir as is aforesaid. And because in a new case a new remedy must be provided, the following writ [formedon] is to be made as required:
Command A. to render to B. justly etc., such and such a manor with appurtenances which C. gave to such and such a man and such and such a woman and the heirs of the bodies of that man and woman, OR which C. gave to such and such a man in free marriage portion with such and such a woman and which after the death of the aforesaid man and woman ought, by the form of the aforesaid gift, as he says, to descend to the aforesaid B., the son of the aforesaid man and woman OR which C. gave to so and so and the heirs of his body and which after the death of the same so and so ought by the form etc., to descend to the aforesaid B., the son of the aforesaid so and so.
The writ whereby the donor has his recovery when issue fails is in common use in the chancery. And it is to be understood that this statute applies to the alienation of a tenement contrary to the form of a gift made after this, and does not extend to gifts made before it. And if a fine is levied hereafter on such a tenement, it is not to be legally binding, and the heirs or they to whom the reversion belongs will not be bound to lay their claim even if they are of full age, within England, and not in prison.
People had started giving grants not only in the form "to x and his heirs" but also in the form "to x and the heirs of his body begotten." This was not strange, in that it bore a great resemblance to the traditional marriage portion or maritagium, only now it was given also to sons in an attempt to found a cadet line. The courts had to figure out what to make of that different formulation. In the form "to x and his heirs" the heirs received nothing, because x could sell the land leaving the heirs with nothing to inherit. Thus "and his heirs" only designated what x received by the grant: it took those words to convey to x a fee simple. But if "and his heirs" meant nothing for the heirs, then what could the justices construe that "and the heirs of his body begotten" meant? They concluded that it had to operate similarly, giving the heirs nothing, but only designating what x received. The exact construction was that those words would give x a fee simple conditional, that is, x got possession and, if he had children, then his estate became a fee simple. Once he had had children, then, he could alienate the land. The heirs got nothing.
Before the statute, then, a grant in the form "to x and the heirs of his body" kept a reversion in the grantor with a fee going to x that would become a fee simple in x on the birth of issue, such that x could then defeat the reversionary interest of the grantor merely by granting away the fee simple.
The statute deplored that result. It speaks in terms of "issue." Modern law regards the term "issue" as decisively different from "children": children refers to a person's sons and daughters, whereas issue refers to the whole of the descendant class, including not only sons and daughters but also grandchildren, great-grandchildren etc. Regardless, to the lawyers at this time, "issue" looked plausibly like "children". Most explicitly, the statute only spoke about the grantee being restrained (that is, the original recipient, not his/her children), with the issue being sure to receive the land. It was thus not implausible for lawyers to conclude that only the grantees were restrained. The result was that instead of the birth of issue increasing the estate that x received, the lawyers concluded that x's estate was much more like a life estate (although not a life estate). On birth of issue, nothing at all happened to x's estate, but the fee then resided in the issue, who, on reaching majority, could cut off the reversionary interest in the grantor merely by granting a fee simple. Thus the lawyers interpreted the statute merely to have put off the defeat of the reversionary interest for one generation.
1. Given the severely logical nature of thirteenth century lawyers, remember to read the statute carefully.
2. The statute speaks of gifts made in the form "to H. and W. his wife and the heirs of their bodies begotten" and in the form "to X and the heirs of his body" when the condition was made for reversion on default of such heirs descendant.
3. What is the problem with alienation here? What did a grant "to x and his heirs" give the heir if x sold? What is the logical conclusion about the nature of a grant to "x and the heirs of his body": does this just defer the heritable interest until x has a child? And after that, was it any different from any other fee?
4. Are such grants new? Remember a grant of a marriage portion, for which husband did not give homage so that the land would revert to donor on default of heir, with homage being given by the fourth tenant descendant? Since there was no homage, what would be done if the tenants sold? That is, how was the reversion secured earlier, say early thirteenth century? What changed that situation? Are the grants covered in this statute exactly the same as the marriage portion?
5. Pay careful attention to the language in the statute. It speaks of donors, donees, and the issue. Who is protected here? Now try the hard questions.
6. Before the statute, when the donee could alienate after the birth of an heir, who had the fee before the birth of the heir? Who has the fee after the birth of the heir?
7. After the statute, the land will descend to the heir. Who had the fee before the heir's birth? When the heir is born, who has the fee? Can you conceptualize all this in terms of a fee and a life estate?
8. Now for a difficult question. Half-blood siblings do not inherit. Robert receives a grant to him and the heirs of his body. He marries and has a daughter. Who has the fee? His wife dies. He remarries. He has a son from his second marriage. Daughter dies. Who has the fee?
9. The Fee Tail is a cut-down fee, that is, a heritable interest that is limited both in terms of the power of alienation and also as to the class of those who can inherit. This means that the current tenant has not just a life estate, but a cut-down fee in himself. Do you see how that was the necessary solution to the problem in "8"? If once the fee simple rested in the issue, then parts of the grantor's intent failed. The only reasonable solution was to invent an entirely new kind of fee that each successive possessor would possess in its entirety, so that no longer could the interests be conceptualized as something like a life estate and a fee simple. The issue then had absolutely nothing until his ancestor died. Do you likewise see how the drafters of the statute did not set out to create a second different kind of fee, but did set in motion the process by which that was the inevitable result?
10. The writ in the statute is the writ of formedon (= "form of the gift"). It came soon in three forms, depending on whether claimant was claiming as a descendant (for any descendant of the original grantee), a reversioner (for the grantor's line), or a remainderman (for a secondary grantee). The three forms were known respectively as formedon in the descender, reverter, or remainder.
11. A grantor created a remainder in the following grant form: "to x and the heirs of his body, then to y and the heirs of her body." Note that Y's line will only receive after x's line dies out. Note also that if Y's line dies out as well as A's line, then the general heirs of X and Y (that is, their cousins etc.) will still have nothing: the grant was only to those two individuals and their blood descendants. Thus the grantor still retained a reversion. A remainder is called a remainder because the land stays out for a further time from the grantor after the first grant takes effect. Note that it is still called a remainder even when the grantor does not retain a reversion (to x and the heirs of her body, then to y and her heirs).
IX.C. Brok v. Westwyk [1290-1294]
BL Add. 31826, fol. 59
This report shows the way in which the law in the 1290s thought about the distribution of interests in land that followed a grant in the form of "to x and y and the heirs of their bodies". Whereas before De Donis one had a fee simple conditional (the grantee's interest would become a fee simple on the birth of issue), after the statute for a few decades the law considered that the grantee continued to have something like a life estate, and on birth of issue the fee passed to the issue from the grantor. Work your way through this report (it is not easy) and see how the serjeants' argument demonstrate that perception of the fee tail in the years immediately after De Donis.
William son of Lawrence de Brok brought his writ of formedon against John de Westwyk and claimed three parts of the manor of Burton by the reason that A., B., C. gave the three parts of this manor to Lawrence de Brok his father and to Maud his wife and to the heirs of these two engendered, of whom he is the issue and thus he claims the tenements by the form of the gift, etc.
Warwick [D]. Put forth some specialty [=deed under seal] which attests the form of the gift.
Mutford [P]. We want to aver it etc. [aver=submit to verification by jury]
Warwick [D]. You ought not arrive at the averment without specialty, because where a man claims by the "to descend" or by the "to remain", it behoves him to have something to show the form etc., but that is not necessary in the reverter, because the donor is able to aver his own seisin or the seisin of his ancestor etc.
Mettingham, [J]. If I will be received to the averment when the form is not plain, a fortiori will I be received when the form is sufficiently plain. But if it were such that those to whom the gift was made by this condition die without issue engendered of their bodies and the donor claim the reversion by the form of the gift, he would be received to the averment. Likewise here, inasmuch as the condition is sufficiently plain in form, etc.
Warwick [D]. If those to whom the gift was made by such a form were impleaded and they prayed aid of their issue, they would not be received to this prayer without putting forward a deed which attests that the fee and the right repose in his person, in the same way here.
Mutford [P]. Sir, we tell you that those who entered the tenements by this form so held their feoffment against them that the issue was not able to be party to guarding this deed, because he was then an infant. And he asks judgment etc.
Warwick [D]. If those to whom the gift was made in this manner by condition were impleaded and they vouched their feoffor to warranty, they would not be received to the voucher if they did not show a deed which attested the form of the gift in the same manner etc.
Mettingham [J]. In this case whereas the tenant would be received to answer in form of an exception, so if he were demandant he would be received to put forward a response in the form of an action. Wherefore, if it were thus that such a one was in tenancy and his vouchee or another bring his mort dancestor, it will rebut the demandant from his action to say that he had entered by the form of the gift and aver without specialty, to which averment he would be well received. And by that much it suffices to attain his averment for his action, because he is descendant.
Warwick [D]. One can have many exceptions and many answers as tenant which he will not have as demandant.
Higham [D]. If I bring my writ of debt etc., and was asked what I had to show the debt and I had nothing etc., I would not be answered. And so here.
Warwick [D]. (ad idem). If those who were thus enfeoffed by condition, later but before they had issue purchase a quitclaim from their feoffor and then have issue and alienate these tenements to a stranger and bind themselves and their heirs to warranty, and then the feoffee is impleaded and vouch the issue as heir of his feoffors who enfeoffed him, as well he might, because they had fee and right by their second purchase, now comes the above issue and says that he ought not warrant because he has an action to claim the same tenements by the form of the gift etc., wherefore he ought not warrant and on this he tenders averment without specialty and thus unburdens himself of the warranty, so would ensue great duress and inconveniences, etc.
Mutford [P]. In that case there is no duress, because the feoffee will have the quitclaim of his feoffors, which deed he ought to warrant and which will forebar him from the averment.
Hertford [J]. If he were not received, there would ensue great duress, because where a man thus enfeoffed by condition will fully intend to disinherit his issue, he will do nothing else than put his feoffment in the flame or otherwise so that the issue will never get it. And thus it would follow that the will of the donor would be frustrated by the malice of the feoffee. That would be a great inconvenience, if he could not be received to the averment.
Higham [D]. From two great hardships, one ought to choose the lesser. But if he is received to the averment without specialty, it would follow that I myself could pursue all the land in England and say that it descended to me by the form of a gift made to such and such, whose issue I am and on this tender the averment etc.
Hertford [J]. It would be less duress that he be received to aver the form of the gift than that he be disinherited forever, because we ought to suppose that the jury will say the truth. Because it is possible that where the tenements are given in such form and they have issue and one of the [grantees] dies and the other purchases from the feoffor the fee, by that he would defeat the first purchase to the disinheritance of the heir if he cannot be received to the averment, wherefore etc.
Warwick [D]. If my ancestor lease land at term of years and his heir bring his writ ad terminum qui preteriit and the tenant answer that he has the fee, he will not be received to the averment unless he puts forward some specialty which attests this fee. Likewise here etc.
Warwick's long hypothetical allows one to analyze the nature of the grant "to x and the heirs of his body": at this time, what did a donee have, and what did the donor have, until the heir was born? What are the competing problems about the descendant: whether or not he should be required to have written evidence of the form of the gift?
IX.D. John v. Anon [circa 1290s]
BL. Add. 31826, fol. 169
This is the only document I know of that gives a detailed view of what happened when one went into chancery to purchase a writ. In this case, the appropriateness of the respected writ was unclear, so inquiries had to be made. Chancery controlled the granting of writs, seeking from the plaintiff or the attorney the factual situation to make sure that the writ was appropriate. What does this case say about the nature of the fee tail in the 1290s?
A tenement was given to C. and to D. and to the heirs engendered of their two bodies. It happened then that they survived so long that the issue of their issue had issue, one John by name, while the abovesaid C. and D. were still living and to whom the gift had been made. Their first issue died, and then their second. Afterwards, C. and D., the common ancestors, died. On whose death the abovesaid John who was thus in the fourth degree as to the common ancestor wanted to have had a writ of formedon in the descender.
Chancellor. How did it happen that those in the third degree or in the second never sued for these tenements?
John. Because C. and D. survived them.
[King's] Council. By what you say they did not attain an estate. Now, if the tenements had been given simply, neither you nor your father before you could have had the mort d'ancestor. Wherefore you fall short of this writ in tailled form.
And he had concerning their death a writ of cosinage.
IX.E. Belyng v. Anon (1312)
SS. vol. 31:176 (YB 5 Edward II)
This is the point at which the original conception of the fee tail, as demonstrated above, definitively changes into a distinctly new kind of fee that resides completely in the possessor, but is cut down in terms of (a) who can inherit [heirs special instead of heirs general] and (b) alienability.
John of Belyng brought his writ of formedon etc. [And the writ ran] "[lands and tenements] which after the death of the aforesaid Henry and Joan and John the son of that same Henry and Joan ought to descend to the aforesaid John of Belyng as son and heir of the aforesaid John."
Scrope [D]. Whereas in his writ he has made John the son and heir of John, he ought to have made John of Belyng grandson and heir of Henry and Joan to whom the tenements were given. Judgment of the writ.
Wiluby [P]. There is no need to do that, for John survived Henry and Joan and acquired estate, and therefore we ought to make the claimant heir to him and not to those to whom the tenements were given etc.
Spigurnel. [J]. What estate did he acquire?
Wiluby [P]. He survived [Henry and Joan] and was seised.
Scrope [D]. You have admitted that the issue was seised, and so the gift had effect in his person. Judgment whether you can use this writ against us.
Wiluby [P]. That exception strikes at our right of action, for if you oust us from this writ you prevent us from taking action, for we cannot use the mort dancestor. And you must take this as our answer.
Herle [D]. This exception does not go to the action, for if you come within the circumstances contemplated by the statute, you can have your recovery by the common law, for the issue, before the statute, could use the writ of mort dancestor or entry dum fuit infra etatem, and so the common law is open to you; and we ask judgment of this writ that follows the words of the statute but is not warranted by the statute.
Scrope [D](ad idem). By the common law when the feoffees had issue they had an estate of inheritance and could alienate, and now by the statute the only persons restrained are the original feoffees. And the statute shows as much: "so that they to whom the tenement was so given shall not have the power of alienating it." But in the case where the original feoffees have no children, or, if they have, such children die without issue, then by the words of the statute, the reversion is preserved [to the donor]; but the statute does not say that the descent is preserved to the issue, but only that the feoffees cannot alienate. Judgment etc.
Bereford [CJ]. He that made the statute meant to bind the issue in fee tail as well as the feoffees until the tail had reached the fourth degree; and it was only through negligence that he omitted to insert express words to that effect in the statute; and therefore we shall not abate this writ etc.
Herle [D]. The donor did not give to Henry, the grandfather of John, nor to Joan his wife, ready etc.
1. What kind of statutory construction is being exercised by Bereford?
IX.F. Anon (1410)
YB 12 Henry IV, fol. 9, pl. 15
Once the statute was made to mean that not just the first child, but the first three generations were bound, so that only the third heir (the fourth generation) would finally take the land as a fee simple, the limitation becomes discretionary. Why the third heir? Historically the answer is clear. The maritagium or marriage portion became a fee simple at the fourth generation because they were then considered not family: that was the point at which marriage again became possible with the main line without special church permission. But the statute, on which the fee tail was now based, gave no warrant for drawing a line between second and the third heir (between the third and fourth generations). In 1340, then, the court could discern any difference and extended the restrictions on the possessors of a fee tail in perpetuity. Not only the fourth generation, but all succeeding generations would be bound by the form of the grant until the grant expired for lack of heirs. Once that had happened, however, a strange reverse logic operated on the old marriage portion: would it continue to become a fee simple at the fourth generation?
A writ of formedon in the descender was brought and the writ was "that one such gave in free marriage portion" and the demandant made the descent to himself by many degrees.
Skrene said that the land was alienated before the statute. Ready etc.
And the others to the contrary.
Hill, J. It is proved by the descent that the free marriage portion is destroyed by the many degrees beyond and has become a common tail. In which case the writ ought to be general as of a common tail. Wherefore the writ is abateable.
Hankford, J. The free marriage portion is destroyed having regard to the donor, because he will have such service from the issues as he does further to his lord. But still the issue will vouch and will have a writ of mesne for the same reason. And furthermore, since the form of the gift begins by the free marriage, which is the title of this action, the writ will encompass the form, wherefore.
Hill, J. In a common tail the issue will have a writ of mesne without a deed; and the first form, which was free marriage portion, is terminated. Wherefore, by the form of this gift, it cannot descend to the issue, inasmuch as the first matter was to hold quit of all services and so it [the first matter] will not be to him who is demandant, even if he were in. Wherefore.
Colepeper, J. After the free marriage is destroyed, the issue will not have a writ of mesne as tenant in the free marriage.
And afterwards Skrene held himself to the issue.
IX.G. Doctor and Student (1523-8)
SS. 91:156 (modernized)
Doctor. I have heard say that, when a man who is seised of lands in tail sells the land, that it is commonly done that he who buys the land -- for his own security and to avoid the tail in that respect -- will cause some of his friends to recover the said lands against the tenant in tail. Which recovery, as I have been credibly informed, shall be in this manner: the claimants shall suppose in their writ and declaration that the tenant has no entry but by such a stranger as the buyer shall want to name and appoint, whereas indeed the claimants never had possession thereof, nor yet had the stranger. And thereupon the said tenant in tail shall appear in the court and by covin and by assent of the parties shall vouch to warranty one that he knows well has nothing to yield in value. And that vouchee shall appear and the claimants shall declare against him and thereupon he shall take a day to imparl in the same term. And at that day by assent and covin of the parties, he shall make default, upon which default -- because it is a default in contempt of court -- the claimants shall have judgment to recover against the tenants in tail, and he over in value against the vouchee; and this judgment and recovery in value is taken for a bar of the tail forever.
How may it therefore be taken that that law stands with conscience that as it seems allows and favors such feigned recoveries?
Consider that, although the vouchee here had nothing to do with the land, in theory he was the person who granted the fee tail to the tenant or the tenant's ancestor. Thus in the eyes of the court, the vouchee has the reversion in fee simple, and it is the fee simple that supports the fee tail: if the title to the fee simple was faulty, then so too was the fee tail. The grantor of a fee simple cannot give good title if he does not have good title to begin with. This case provides a court judgment that the fee simple interest was faulty, in favor of the Buyer, so that the issue of the tenant in fee tail will be barred from bringing an action of formedon to claim the fee tail. Thus the perpetuity can be defeated, and the land can be disentailed.
This procedure was developed from the middle of the fifteenth century and is normally associated with Taltarum's Case (1472). This seems patently unfair to the issue. The proliferation of the common recovery to disentail lands, however, made possible further extension of the use, which will be covered below.