The intent of this paper is to demonstrate a trend towards increasing abstraction in the English common law during the twelfth, thirteenth, and fourteenth centuries. This was the period in which English law as the legal student now knows it took shape: a period which began with the reforms of Henry II and ended as the reforms of Edward I, "the English Justinian", began to take effect. The case of the two parallel structures of the maritagium and the "gift in tail", the former being a customary gift under the common law and the latter being a further development designed to work within an increasingly abstract system of law, demonstrates the growth of abstraction in the law during this period. To attribute this to the intentions of the actors in the legal system of the period would be anachronistic; Frederick Pollock and F. W. Maitland have said that during the thirteenth century, "there is no definite theory as to the relation between enacted and unenacted law, the relation between law and custom, the relation between law as it is and law as it ought to be". Rather, this trend is discernible with the always sharp vision of hindsight, which shows the modern scholar a clear road which could not be seen by those who were quarrying it from the mass of custom.
The maritagium did not die out solely because changes in the law and its conception; rather, it died as result of a number of changes in English society and the English economy which merit a brief discussion. The general trend towards abstraction will be explained next. Finally, the role of abstraction in the demise of the maritagium and its replacement by the gift in tail will be explained.
It is initially important to define the terms "maritagium" and "gift in tail". Maritagium was a customary provision for daughters (who had no inheritance rights under primogeniture if there was even one son) which was granted to the daughter and her husband upon marriage. The land was intended to pass only to the heirs of the woman's body with a reversion to the donor or his heirs if the line or lines of heirs of the prescribed class (the descendants of the daughter) failed. The gift in land was free (liberum) when services were not required. For neither free nor unfree maritagia was homage required to the donor or his heirs. This fact allowed the land to be reabsorbed; but without homage, only custom forced the heirs of the donors to maintain the gift. It had become the custom that the third heir of the donee would do homage to the donor or his heir, which provided for a reasonable number of heirs of the prescribed class, and allowed those heirs to gain the protection of homage to preclude revocation of the grant.
The gift in tail had grown from the custom of granting maritagium and could be described equally well as a generalized case of it. The gift in tail or "entail" was a gift made to a person and the donee's heirs of a prescribed class (generally heirs of the body) which would revert to the donor or the donor's heirs if the prescribed heirs failed. It was designed to provide for younger sons, remitting the hardships of primogeniture, while preventing the hazards of partible inheritance and without permanently detaching a grant from the central inheritance by homage.
K. B. McFarlane has stated that the custom of granting frankmarriage (the free maritagium) had died out among the nobility by the end of the thirteenth century and had been replaced by marriage gifts of money. A lack of royal court records for frankmarriage cases would seem to at least partially bear him out; Robert Palmer has pointed out that records of disputes over such chattel and money settlements are not found in the royal court records, but rather in the records of the ecclesiastical courts. The abandonment of land gifts as marriage portions to daughters was not restricted to the magnates; Judith Bennett, in her work on the town of Brigstock during the late thirteenth and early fourteenth centuries, has reported that settlements on a couple at their marriage there were usually divided along gender lines, with men contributing land and women contributing chattels.
There were a number of reasons why the tradition of settling land on daughters failed as a general practice. The primary factor was the subordination of daughters to sons in dynastic strategy during a period of economic change. However, as it shall be demonstrated later in this paper, a tendency towards abstraction in law also played a crucial role.
During the economic changes of the thirteenth century, there were a number of factors which combined to put the position of the "minores" or lesser men, the forerunners of the landed gentry, at risk. A steady inflation rate dramatically increased prices during the thirteenth century. Even though moments of peak inflation were often abated by recoinage, the overall rise of prices is clear from the records. Inflation decreased the value of rents and increased the prices for demesne produce, making it more profitable for lords to convert rented lands to demesne production. The profitability of demesne land brought on a desire for more land, which caused new settlement throughout England. Land hunger was also reflected in an active land market in which all social and economic groups, such as members of the royal family, great magnates, governmental officials, Jews, and even villeins, participated.
Gentry who were unable to adopt strategies of balancing their demesne production and rent incomes were forced to sell out, providing increased land and hence flexibility for the survivors. The land market was not necessarily a desperate resort; Edward Miller has theorized that the economic changes of the thirteenth century were based in the increasing confidence of landlords rather than their desperation. Whether or not a particular landholder was forced into selling land or was able to buy it, the existence of the land market reinforced a need for tighter seigniorial control of land resources which in the end was detrimental to daughters.
There was also a change in the understanding of familial relationships towards a consciousness of lineages during this period. The lineage has been defined by David Herlihy as a unilinear filiation group with a consciousness of descent from a specific ancestor through a line of same-sex descendants, sharing insignia such as names, heraldic devices, battle cries, and a common mythology. Primogeniture, the chief inheritance custom of England and the sole inheritance custom for knight's fees, clearly supported the dynastic view of the family suggested by lineage ideology; such an ideology emphasized the role of males and de-emphasized the role of females in family strategy. Daughters were important in forging links with other dynasties, but their children were considered to be members of another lineage.
Thus, during the thirteenth century the following dynastic (lineage) strategy developed in England. In order to maintain the family holding a sacrifice of the traditional gift in land made to a daughter on her marriage was made; land was a valuable commodity, and daughters were the least important of the offspring. Distribution of lands to daughters was a family strategy which ceased to make sense; it was a means of detaching land from the patrimony and granting it to another lineage, from which it was unlikely to return. Further, it has been correctly stated that "medieval England did not have even a lurking suspicion that women as persons might be equal to men". This lesser status meant that in times of scarcity daughters were likely to lose their claims to the family's lands before sons. Younger sons still shared in the land resources of the patrimony; their exclusion would not occur until the sixteenth century. It was at least partially in their interest that the gift in tail was developed.
Having discussed the role of economics and dynastic strategy in the passing of the maritagium, it is now important to examine the public function of land and its place in the development of an abstract legal system in preparation for an examination of the role of abstract law in its demise. A brief discussion of the development of the alienability of land and the role of the public forum of the court in the establishment of alienability will aid in demonstrating the development of an abstract relations of the legal system from the failure of the personal relations of the feudal system.
In the late twelfth century the legal scholar Ranulf de Glanvill held that a man's inherited land could not be distributed to his younger sons, but that land acquired by the man during his lifetime could be alienated freely (unless the man had no inherited lands, in which case some had to be left for the heir). Henri de Bracton, two generations later, held that, conversely, a man might alienate any and all of his land and that the heir would inherit only what was left on the man's death.
T. F. T. Plucknett has stated that the change between Glanvill's view and the view held later by Bracton was caused by the imposition of primogeniture as an inheritance custom on lands which had previously been partibly inherited. Plucknett has dated this change at about 1200, but was unsure of the reasons behind the change, or even whether there was a deliberate policy of favoring primogeniture; he theorized that a few decisions by the king's court might have tipped the balance in favor of one of two competing inheritance customs.
Frederick Pollock and F. W. Maitland have also noted a change in inheritance customs, although they place it slightly earlier. They have stated that the judiciary of Henry II adjudged that testamentary alienation of land was prejudicial to the heir and that the same judges or their immediate successors decided that the consent of the heir would no longer be necessary for an inter vivos gift.
These developments were not a result of the workings of the feudal system; rather, they were counter to the feudal world view. The feudal relationship was originally envisaged as a relationship between a man (the lord) and another man (the vassal or tenant); it was an exchange of capital wealth (land) for services. Even the development of a right of inheritance, which interfered in the lord's legitimate choice of tenant, was counter to the original feudal exchange; there was no guarantee that a man's heir would be able to adequately perform the services which the man had owed. But by the thirteenth century the feudal relationship had fallen by the wayside, as the evidence for a market in which land was bought and sold clearly indicate. The land market helped to further break the personal bonds between lord and tenant by introducing artificial links into the feudal chain. These artificial links were established by subinfeudation.
The facts that the tenant held the land and that the tenant owed rents and services to the lord had become detached from each other by the thirteenth century. It had become possible for a tenant to grant the land to a subtenant for a nominal rent, such as the traditional rose at Midsummer. When this nominal rent was accompanied by an up-front lump sum which the new subtenant paid to the old tenant, the subinfeudation was to all intents and purposes a sale. In a true feudal system, a lord had every right to stop a tenant from subinfeudating a land grant; this was especially true of a subinfeudation for nominal rent, which damaged the tenant's ability to maintain the obligations of rents and services which were owed to the lord. As a final resort, the lord could disseise a disobedient tenant, withdrawing the seigniorial approval which allowed the tenant to hold the land. However, the royal court had long since interfered in the feudal relationship between lord and tenant, and it was only in court that the lord could legally attempt to stop the tenant from alienating (in this case, selling) the land.
Even when a tenant's entire holding was subinfeudated, the tenant, not the subtenant, remained responsible for rents and services to the lord. Ideally, the lord would have allowed a substitution of tenants rather than artificial subinfeudation, where the responsibility for rents and services became detached from the person actually using the land. However, because of the custom of warranty, by which the lord might have been prevailed upon by a court to supply the old tenant or that tenant's heirs with lands of equivalent value to the original holding in certain circumstances, substitution was not adopted for many years.
It was only with the statute Quia Emptores in 1290 that substitution became viable; lords were now legally protected from the deleterious effects of the warranty. However, the statute also represented a complete failure of seigniorial control, as tenants were allowed to alienate freely after the statute, and lords had no control over who the actual tenant of a holding might be. Quia Emptores can be seen as the legal acceptance of the facts of land as a commodity and the final failure of the feudal relationship.
The breakdown of the feudal relationship occurred in a time when the enforcement of law in court was being removed from the realm of seigniorial authority to that of royal authority. The process of removing suits from the seigniorial court into the royal court had begun during the twelfth century, but there can be no doubt that the land market of the thirteenth century, by increasing the number of nominal lords who had no courts, furthered the process.
The royal court, unlike the seigniorial court, in which the participants were united by common bonds and oaths, and often by common knowledge as well, had to enforce standards of objective proof. It was not intention, but action, that had to serve as evidence to the royal justices.
The case of the attempted transfer of Whilton manor in 1264 is a clear demonstration of the failure of intention in the face of insufficient action. In this case, which is known to modern scholars because of the series of lawsuits which followed it, an attempt to conform to certain standards of proof was made, and failed. There was no charter recording the transfer; a charter would not have been necessary, but would have been helpful in court. The seisin of Nicholas de Whelton, the putative recipient of the land, was insufficient; though he received livery of seisin from his father, William, and his elder brother Roger quitclaimed the land to Nicholas, Nicholas failed to use the land as its lord. Nicholas never worked the land; he did not replace the bailiff; he never freed any of the unfree tenants. By failing to meet these external standards of proof of seisin before allowing his father to return and take up a life tenure, Nicholas allowed his seisin of the manor to be called into question.
Another example of the effects of intention and action can be found in Bracton. He discussed the case of Godfrey of Crowcombe, who gave land to Robert of Mucegros so that after Godfrey's death Robert might convey the land to Godfrey's widow. This transaction should have been, in Bracton's opinion, invalidated by the court, as a sleight of hand by which a ban on gifts between marital partners was evaded. However, the court accepted the transfer of land between Godfrey and Robert at face value. It was the action of the transfer which was valid; the intention that the land would ultimately (illegally) be transferred to Godfrey's wife was of no consequence.
The tendency towards abstraction in the legal arena is also apparent in the compilations of laws and customs that began to appear during the late twelfth century, such as the treatise attributed to Glanvill, Bracton's On the Laws and Customs of England, and Britton. These compilations were an attempt to codify custom and to interpret it as a single cohesive body of law. This tendency is especially apparent in Britton, a late thirteenth century compilation, which purported to be a royal enactment. The royal legislation of the thirteenth century, especially that of Edward I, also acted to make the law into an abstract body, with objective rules, rather than a flexible body of custom maintained by memory and changing with circumstance.
Thus the thirteenth century could be described as a time of abstraction. Law became an abstract body of rules rather than a flexible body of customs; land became an abstract commodity to be bought and sold rather than an integral part of the feudal relationship; personal feudal relations were replaced by a contractual relationship between a vendor and a buyer of land. It is in light of this abstraction that the case of the maritagium and the gift in tail reappears.
The specific form of the maritagium was unsuitable as a method of land conveyance in an era of increasing legal abstraction. In the late twelfth century, Glanvill was able to provide the legal historian with a clear definition of maritagium and how it was to be administered. As a customary gift, which everyone understood, it was a sufficient method of conveying land in Glanvill's time. By the time that Bracton wrote, the consensus on what a maritagium was had already eroded, as the following description of the maritagium demonstrates:
A maritagium sometimes reverts to the donor by tacit condition or express ... It is clear that land sometimes is given before espousals and because of marriage, by the father or other relative of the woman to the husband with such woman, or which has the same effect, to them both together, that is to such a man and his wife with their heirs, or to a woman to facilitate her marriage ... If marriage is mentioned the land so given may be called a maritagium. A gift of this kind is made before the marriage, sometimes at the marriage, sometimes after the marriage ... It is land given propter nuptias that is called a maritagium.
Although his description matched Glanvill's in some particulars, Bracton was clearly confused about what might be called a maritagium. By his time, two generations after Glanvill, the inexplicit maritagium was already in the process of being replaced by the gift in tail: a broad form of gift which was governed by general rules under which a specific gift might be made. Bracton recognized the gift in tail and defined it as follows in his treatise:
Just as the class 'heirs' may be enlarged... so it may be restricted by the modus of the gift, so that all heirs generally are not called to the succession ... as where it is said, 'I give to such a one so much land with the appurtenances in such a vill to have and to hold to him and his heirs born of his body and that of his wedded wife' or 'I give to such a one and to such a one his wife (or '{to such a one} with such a one, my daughter) to have and to hold to him and his heirs of the body of such wife (or '{and the heirs } issuing from (or 'born and to be born to') such daughter'). Then, since only certain heirs are specified in the gift, it is evident that the descent is only to them, [and] their common heirs ... because that was the donor's intention.
Bracton's gift in tail clearly encompasses certain types of gift propter nuptias; it would clearly be possible to give a marriage-portion to one's daughter as a gift under these rules.
The gift in tail might be characterized as the thirteenth century improvement upon the maritagium. The gift in tail not only performed the functions that the maritagium had previously performed, it also was useful for giving land to those to whom maritagia could not have been given, such as younger sons. Gifts in tail could even be made to those to whom the donor was completely unrelated. Also, there were phrases associated with a gift in tail which specifically limited the heirs in the tail; this was not true of the maritagium. These phrases were useful both for verbal gifts and for the writing of charters which might be presented as proof of the gift in court at a later day, perhaps long after the death of the parties to the gift and the witnesses.
These qualities of the gift in tail made it suitable to survive in the increasingly abstract legal system of the thirteenth and fourteenth centuries. The maritagium, which had served a purpose in the days when courts were local and intentions could be discerned and followed by a court, became obsolete, and its offspring, the gift in tail, replaced it. The versatility and specific nature of the gift in tail ensured its survival long after the maritagium had fallen out of use.
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