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Home The Charter and its Guardian, Parliamen Edward I and the Law; Part 5 |
Edward I and the Law; Part 5A feudal owner's power and wealth, whether he were king, tenant-in-chief, or mesne-tenant, depended largely on his sub-tenants. While they lived they paid certain services and dues; when they died their heirs paid fines, such as heriots and reliefs, before they succeeded to the estates of the dead. The overlord, then, was interested that during their lives they should be men of substance, able to discharge their duties punctually, and that their deaths should occur with normal frequency. At first sight one might be disposed to think that the last matter might be left to nature, that all tenants would die; but this is not so. There was a class of tenants who never died. If land were granted to a corporation, or to a corporation sole - that is to say, for example, to any monastery, or to "the abbot", or "the vicar", or "the mayor" of such and such a place - these never died: men came and went, but the institution or office lasted. Thus land granted to churchmen never changed tenant; it passed into the "dead hand", into Mortmain, and the superior lost for ever all dues coming from its change of owner. "The Abbot of Glastonbury", for example, never died, never was a minor, and never could be assigned in marriage. Land granted to him paid neither heriot, relief, wardship nor marriage dues. Further, as churchmen and monks were anxious to swell the estates of their order, and as a grant of land was the general way of securing those masses for the soul which were intended to help it in its passage through purgatory, deathbed grants of land to religious houses were common. Beyond this, however, there was a fraudulent practice of handing over land to a religious house and getting it regranted on easy terms. Edward I's statute of Mortmain forbade the buying, selling, or acquiring of land in any fashion so that it could pass into mortmain; if any such bargain were made, the grant was void, and the land passed to the immediate superior.The nobles were with the king in this matter, since they were always jealous of the churchmen, who had been the chief holders of land in mortmain. They also mostly approved the statute Quia Emptores. This was designed to check what was called sub-infeudation, that is to say, the practice of a feudal-tenant granting away to a sub-tenant part of the land granted to him. The reason why it was tempting to subinfeud was that thereby the granter got more men under him and thus more power. An ambitious man would make a number of grants - often very petty ones - to his less pushing neighbours, in order that he might have a call on them in case of need; they would accept, since they would expect his protection in return. For two reasons the great landowners and the king (who was the greatest landowner of all) disliked this. To begin with, it involved all feudal ties in a tangle. It often happened that a man would hold land from three or four different people. He might be a tenant-in-chief from the king for one piece, and sub-infeuded to, say, the Earl of Gloucester for another piece, and to Sir Roger, who was himself a tenant of the Abbot of Tewkesbury, for a third. King, Earl, Knight, and Abbot would all have claims on him. Secondly, the tenant, in his anxiety to extend his feudal power over a large array of vassals, might grant away so much of his holding that he would be unable to perform his own due services to his overlord. Hence the statute Quia Emptores provided that, if a tenant granted land in this way, the receiver of it would hold, not from the granter, but from the granter's overlord. This statute, like Mortmain, favoured the tenants-in-chief, but still more the king, as feudal superior of all land. By increasing the number of tenants-in-chief and diminishing the average size of their holdings, it decreased their social dignity and helped to destroy feudal power. One more measure, also of lasting importance in our history, was that known as De Donis Conditionalibus, which enabled land to be left to a man and his heirs in such a way that he was forbidden to part with it. This set up what is called "entail". As many estates were thus entailed, much land was secured in the possession of great houses. But it was secured to the heir, the eldest son; save where means of evading the statute were found, the younger sons of the house could get none. Thus, though a small number of landowners were kept great, there was no establishment of a landowning caste, who would regard themselves as noble, being inheritors of land, and despise all landless men as socially inferior; the younger sons of great families had to seek fortune in the world, either in arms, in the Church, or in the law. Thus, as these professions were constantly recruited from the younger sons of landed families, no severance grew up between the landed "noble" and the rest. It was not so in France, where all "nobles" remained "nobles", and the immense gap between them and the people was one of the great causes of the Revolution of 1789. |
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