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More generally, the ideas and specific concerns, the customs and practices that Magna Carta mentions were rooted in earlier English practice and circumstance.
Suggesting that all it really did was either (A) building on existing royal concessions, or (B) codify traditional aspects of earlier English law
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- Apr 2024
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Tenure
The focus of tenure within this book, is primarily the system which was brought in by the Normans post 1066. In this system there was the king, who owned the land, followed by his tenancies in chief, which were his main lords that held massive parcels of land, and below these were a linked system of lords and tenants. In order for a lord to subinfeud their land, someone would have to (A) perform homage to the lord, and (B) promise to perform a service for the lord in order to retain and live on the land. This. could be seen as the contractual relationship under which someone could acquire land.
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homage or merely from the grant of land
Could it be that homage was simply a necessity in attaining the grant of the land, whilst the service performed for the lord was in return for the grant,
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Land is a place to live, and a source of food and other commodities, including – if one has enough to let to others – money
Essentially, at this point in time the possession of land would basically provide everything else that was essential to living, and then some. Without land, you could not truly have a place within society.
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cessation of arbitrariness
This being the ending of decisions being made based on a whim or personal bias in relation to property disputes
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This suggests that contemporaries regarded physical injuries as a species of insult; just as lying with a man’s female slave was an affront to his honour, so too was breaking his rib.28
So rather than having offences within Æthelberhts code. it would be more proper to refer to them as being insults, for which a compensatory sum was attached.
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eighth century
given that the roman legal customs of objection to written law appeared to persist, it's a fair assumption that this assembly existed before 700 AD and at the time of the creation of the code
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promoted peace without compromising pride. It was also more consistent with Christian teaching than revenge-killing.
which was a key aspect ins regards to insuring that the code was actually used in practice, given the significant role that honour and reputation played within Kentish society at the time
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A more uniform influence from the same period was that of the Christian Church, which after the arrival of St Augustine’s mission from Rome (597 ad)
An event which would directly influence/encourage the inception of Æthelberhts code
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our first glimpses of ancient British customs are obtained through Roman eyes. The learned men among the Britons passed on their traditions by word of mouth and thought it inappropriate to commit them to writing. Most of the people were held in servitude to a native military nobility, but there was a caste of priest-judges, called druids, who spent years learning the old Celtic customs by rote (in verse-form) and were called upon to decide controversies both public and private
This remained very much the same even after the decline of the Roman Empire. Priests would be responsible for delivering legal processes as a means of saving disputes, and for the most part - it is assumed - that rather than relying on a written body of law, the sources of law related only to knowledgable men who would pass down their knowledge and dispense it orally
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- Mar 2024
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nd so on, until an affirmative was negatived. All assertions which were not denied had to be treated by the court as if they were true, because their truth could not come into question if the parties themselves did not make an issue of them
this sentence itself outlines the process of pleading, it is simply the activity of outlining the facts that have given rise to an action, waiting for the response of the other as to how these facts actually were, and then following the same process, until you reach they key issue that is in dispute.
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the plaintiff had to reply to the avoidance (the defendant’s new facts), using the same four logical choices
So, it would be routine for the parties to simply state the facts of the case, and wait for the reply of the other, before choosing one of four ways to reply, as outlined above, until this produced an issue for the court to decide on.
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One was for the parties to deny that in law the facts as agreed amounted to a case against him; this was a demurrer, and it produced an issue of law. The other was to introduce further facts to explain away the agreed facts; this was a confession and avoidance
The options available to a defendant that accepts the plaintiffs account of facts as being true
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‘count’
The process through which pleading began, a 'count' whereby the plaintiff would 'amplify'/ draw notice to the matter outlined in the writ, and also explain the factual details of the cause of action.
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royal courts was wager of law,16 or compurgation, which was regularly used in actions of debt and detinue until the beginning of the seventeenth century.17 The defendant took an oath that he did not owe the money, or withhold the chattels, and produced eleven compurgators to testify to his credibility.
continuance of the proof by oath
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The classical form of trial jury (or ‘petty jury’) appeared first in criminal suits around 1220, as a direct result of the decision of the Church in 1215 to stop participation in ordeals.
So in part, the rise of the jury is directly related to the church prohibiting members of the clergy from participating in any more trials by ordeal.
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Resort was had instead to ‘proof’ by oath, which might have to be backed up by a physical test (an ‘ordeal’).
Judgement was as explained not based on weighing up facts or evidence, but rather either the honour based system of the oath, or a psychical trial, of which the outcome would decide the outcome of your dispute.
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It would be anachronistic to regard it, when the dim rays of history first fall upon it, as a court of law. It was an open-air meeting of the populace to discuss local affairs under the presidency of an ealdorman,13 or his deputy, assisted in some places by a group of ‘doomsmen’. The community issued no writs and kept no records, and in consequence little is known about its doings.
The 'court' system prior to the establishment of a formal court system.
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Alienation by substitution could harm the lord in a different way, for instance if an old tenant substituted a young man with a long life-expectancy
A brief example of the issues with alienation
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But if the tenant had in his lifetime subinfeudated for a worthless service such as a peppercorn,109 taking the purchase price in ready money, the lord had wardship only of the seignory – that is, a peppercorn once a year
So this issue with subinfeudination is that, should the tenant of the original lord, provide the tenancy to another for something relatively worthless, and the lord was to take possession of that land post death through something such as escheat or wardship, then the profits repeated from that land would be whatever the deal was between the tenant, and the person they subinfeudinated their land too
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(substitution)
Otherwise known as alienation
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The lord’s autonomy was evaporating in the process. We may even dare to say that the law had begun to recognize something like ownership, belonging to the person with ‘right’
So, the developments within the kings court meant the verdicts of the lords courts could now be challenged and overturned.
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Should there be a dispute, the question who should have seisin was now determined by applying uniform rules of common law
So under Henry II and his attempts to resolve disputes arising from the years of unrest, uniform procedures on determining the outcome of property disputes were created
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On either view, however, the working of the common-law remedies brought about a substantial change of legal thought. The exigencies of the situation had required the dispossession of those who had gained seisin unjustly between 1135 and 1154, and it followed that assuring plenum rectum to those who were to be restored necessarily gave them a ‘right’ which was legally superior to seisin.
This right being, if displaced in time of unrest, you have the right to inherit the land of your ancestor/ dead family member, even if the land is under the possession of someone else
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pone
This would move a dispute over the tenancy of land from the county to the kings court
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tolt,
This would move a dispute between a lord and tenant from the manorial court to the county court
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writ of right patent, ordering the lord to do the right thing, and thereby impliedly authorizing him to unseat the present tenant
In favour of the heir was was displaced
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Henry made an ordinance forbidding informal action in the form of disseisin without judgment
So unless it was allowed by a court, some one could not be dispossessed of land without the judgment of a court
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writ of right ‘patent
So this was a mechanism through which someone could obtain the tenancy of land that was owed to them due to prior connection to said land
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When legal logic took over, and the origins of tenures faded into the past, there was no incongruity in a knight holding land in villeinage, or a villein by knight-service.
So by the 13th century it was not unusual for someone of a specific title to hold tenure for land which did not match the title in question
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vassal
A person in a subordinate position to another
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No more was heard of bookland and folkland, or of allods.
The Norman overthrow completely did away with the previously established systems
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Bookholders themselves made ‘loans’ of land to their own men in return for services, the performance of which was enforceable by forfeiture of the loan
Meaning if specific conditions were not met, or specific services not performed, the occupier would forfeit the land
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Land ‘books’ were perhaps first used to make grants in perpetuity to the Church, but by the ninth century they were also used for grants to laymen
So the land ,books, would specify who holds a piece of property, and under what conditions.
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by the tenth century thegns and royal ministers owed service in return for their lands, and the king’s thegns had their own thegns to perform services for them
So by this time the concept of tenure had become intertwined with the relationship between lord and man, however how this happened is not readily explainable.
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Most Anglo-Saxon men seem to have had a lord, though the seignorial relationship could exist independently of the tenurial
So it was not always the case that a relationship existed between a lord and anglo Saxon men purely because of the tenure of property, it was possible for something else to support this relationship
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Littleton indeed governed legal thinking about the land law for three centuries. But Littleton’s system of tenures and estates was not living feudalism even in his own time
Is what is being said here, that he did not live within feudalism because it was not recognised as being a specific concept/structure, but just how things were?
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English feudalism had undergone a legal distortion. Its features had been systematized by the lawyers of the thirteenth and fourteenth centuries, whose constant engagement with the land law had turned earlier social assumptions into doctrine and thereby created an intricate ‘law of tenures’
This was the turning of social doctrine into the body of law called 'law of tenures'. However this hinders understanding of feudalism as this was not a recognised legal concept, which creates complexity in understanding the development of the law of tenures.
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Tenure is the name given to the relationship whereby a tenant ‘holds’ land of a lord.
basic summary of the concept.
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‘owner’ does not seem to have been much used by medieval lawyers
This could perhaps be because, under a feudal system the concept of ownership/right of ownership is reserved to the king, who simply allows lords to occupy the land, who then allow those beneath them to occupy sections of that land. Anyone under the king would be in possession, not an owner of the land
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he was undertaking, for himself and his own heirs, an obligation to receive the homage of the tenant’s heir (and the heir’s heirs in turn) so that they would become seised.
So, assuming the tenant could pay the relief, the lord would be obligated to accept the tenants homage, and hold their fee
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The earliest forms merely characterized the tenancy as hereditary in nature,4 but by the thirteenth century it had become usual to mention heirs – ‘to A and his heirs’ – and the final formula, which remained in use until 1925, was ‘to A and his heirs for ever’
So, free hold would mean upon the death of the tenant, the lord would take possession of the land. By comparison it could be a hereditary tenure, if specified within the grant
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