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The Economic and Cultural Impact of the Origins of Property: 1180-1220

Published online by Cambridge University Press:  28 October 2011

Robert C. Palmer
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Extract

The development of property in England between 1176 and 1220 was the result of a complicated interaction between social mores made law and bureaucratic action. In the Assize of Northampton, Henry II undertook regular supervision of proprietary decisions to prevent his men from preparing a rebellion like that of 1173-74. The supervision assumed peacetime feudal norms, but in the hands of bureaucratic justices even prior to 1200 this supervision increasingly restricted lords' power to discipline their tenants, at a time when disciplinary power was far more important than proprietary decisions. By 1220, the relative importance of proprietary matters and disciplinary power had been reversed. But proprietary action by the lord was so attenuated that seisin—lawful possession—was possible now even without lordly acceptance. Such insulation of the tenant from his lord was a bond established between the tenant and his tenement: property.

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Articles
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Law and History Review , Volume 3 , Issue 2 , Fall 1985 , pp. 375 - 396
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Copyright © the American Society for Legal History, Inc. 1985

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References

1. The short forms for frequently cited works are the following:

Bolton, English Economy: Bolton, J.L., The Medieval English Economy, 1150–1500 (London, 1980)Google Scholar.

Glanvill. The Treatise on the Laws and Customs of the Realm of England Commonly Called Glanvill, Hall, G.D.G., ed. (Oxford, 1965)Google Scholar. The author will, as is customary, be referred to as ‘Glanvill’ for reasons of convenience.

Harvey, ‘English Inflation’: Harvey, P.D.A., ‘The English Inflation of 1180–1220’, in Peasants, Knights and Heretics, Hilton, R.H., ed. (Cambridge, 1976), 57–84Google Scholar.

Mayhew, ‘Frappes de monnaies’: Mayhew, Nicholas J., ‘Frappes de monnaies et hausse des prix en Angleterre de 1180 à 1220’, in Day, John, ed., Etudes d'histoire monétaire (Lille, 1984)Google Scholar.

Palmer, ‘Origins of Property’: Palmer, Robert C., ‘The Origins of Property in England’, 3 Law and History Review 1–50 (1985)CrossRefGoogle Scholar.

Spufford, ‘Le rôle de la monnaie’: Spufford, Peter, ‘Le rôle de la monnaie dans la révolution commerciale du xiiie Siècle’, in Day, John, ed., Etudes d'histoire monetaire (Lille, 1984)Google Scholar.

2. Harvey mentions once that prices doubled or trebled in the forty years (Harvey, ‘English Inflation’, 58), but several times about three-fold rises in prices (ibid., at 67, 69, 80). Bolton does not hazard an estimate at the total inflation involved, but characterizes it as ‘rapid’ (Bolton, English Economy, 21–22, 73, 76, 87). Both Mayhew and Spufford follow Harvey's estimate of the degree of the inflation. Mayhew, ‘Frappes de monaies’, 160; Spufford, ‘Le rôle de la monnaie’, 365–66.

3. Harvey, ‘English Inflation’, 58, 67, 69, 71. Bolton provides some figures for wheat (more than doubled over the period: Bolton, English Economy, 69), but characterizes the general price increase in grains and livestock only as ‘rapid’: ibid, at 72. The precise degree of inflation is not important. Given the legal changes, even the absence of an inflation would be significant as indicating radical deflationary pressures.

4. Carpenter, D.A., ‘Was There a Crisis of the Knightly Class in the Thirteenth Century?’, English Historical Review 95 (1980), 744–48Google Scholar, in response to Coss, P.R., ‘Sir Geoffrey de Langley and the Crisis of the Knightly Class in Thirteenth-Century England’, Past and Present, 68 (1975), 26–28CrossRefGoogle Scholar. For villeins, see generally Hyams, , King, Lords, and Peasants in Medieval England (Oxford, 1980), 221–65Google Scholar.

5. Harvey, ‘English Inflation’, 71; Reynolds, Susan, An Introduction to the History of English Medieval Towns, corrected reprint (Oxford, 1982), 46–51Google Scholar.

6. Harvey, ‘English Inflation’, 58–59; Bolton English Economy, 87–88. Bolton mentions the interesting phenomenon that lay estates seemed to lead the way in the introduction of bailiffs.

7. Harvey, ‘English Inflation’, 67, 73–79, summarized also in Bolton, English Economy, 76.

8. Bolton, English Economy, 73 (‘the rapid inflation of 1180–1220 which set off the thirteenth-century boom’); Mayhew, ‘Frappes de monnaies’, 172–74.

9. Harvey, ‘English Inflation’, 79.

10. Ibid, at 80; Bolton, English Economy, 75–77; Mayhew, ‘Frappes de monnaies’, 167–68.

11. Harvey, ‘English Inflation’, 81–82.

12. Mayhew, ‘Frappes de monnaies’, 160–68. The quantity of silver involved is far from certain. Mayhew's figures show a definite increase. The quantity involved is rendered uncertain by his necessary reliance on estimated figures for the percentage of total production of the various coins based in two small provincial mints (Carlisle and Lincoln). An important factor in the estimate (necessary for purposes of comparison to other statistics) is that each die produced 20,000 coins. The proper estimate of production from each die, as he explains at the beginning of his piece, is from 15,000 to 20,000. Ibid., at 63. For the purpose of calculating actual increase in silver, therefore, the figures must be reduced, possibly by 20%.

13. Harvey, ‘English Inflation’, 58; see the coinage figures in Mayhew, ‘Frappes de monnaies’, 165.

14. Bolton, English Economy, 73–78.

15. Mayhew, ‘Frappes de monnaies’, 167.

16. Ibid, at 165–67.

17. The polarization between the monetarists and the demographers is well-known. See Mate, Mavis, ‘High Prices in Early Fourteenth Century England: Causes and Consequences’, Economic History Review second series, 28 (1975), 6–8Google Scholar; Mayhew, N.J., ‘Numismatic Evidence and Falling Prices in the Fourteenth Century’, Economic History Review, second series, 27, (1974), 1–2CrossRefGoogle Scholar.

18. Lloyd, T.H., The English Wool Trade in the Middle Ages (Cambridge, 1977), 6–9CrossRefGoogle Scholar. He emphasizes that it was in part a resumption of the wool trade interrupted by the Anarchy. His account suggests that the Flemings were very much involved in the trade, so that Bolton's caveats about the recipients of the major profits may be well founded. Infra note 23. Likewise, although there was a rough correspondence between a temporary slowing in the inflation in the early 1190s, antagonism toward the Flemings, and interruption of the wool trade, the primary cause of the slowing of the inflation was the collection of Richard's ransom. Payment of the ransom would normally have resulted in massive deflation; the lack of substantial deflation indicates substantial inflationary pressures at work.

19. Harvey, ‘English Inflation’, 80–81. Mayhew does not address the gold:silver ratio.

20. Mayhew, ‘Frappes de monnaies’, 160–65.

21. Bolton, English Economy, 76.

22. Ibid. at 77. The evidence is that on the Winchester manors the piece rates for winnowing grain ‘were virtually the same in 1281–90 as they had been in 1201-10'. This may well indicate nothing, as Bolton admits. (See his table of comparative rates between manors for the high degree of variation possible. Ibid, at 71.) Or it may indicate that increased liquidity of resources might not be exactly equivalent to an increase in specie in relation to certain kinds of activities subject to modest control.

23. Ibid. at 77.

24. Harvey, ‘English Inflation’, 61. Bolton does not comment on the comparative question. Mayhew suggests a Continental parallel, but admits that the margin of error is very wide; moreover, the probability is that elsewhere inflation was much less drastic and peaked somewhat later. Mayhew, ‘Frappes de monnaies’, 167–72. Spufford emphasizes the severe nature of the English inflation evidenced by the change in English agricultural management from longterm leases to bailiffs and emphasis on labor services instead of money rents, whereas Continental agriculture reacted to a much milder inflation by changing labor services to money rents. Spufford, ‘Le rôle de monnaie’, 365–66.

25. See supra note 24.

26. Lopez, Robert S., The Commercial Revolution of the Middle Ages, 950–1350 (Englewood Cliffs, 1971), 27–30Google Scholar.

27. One of the more perplexing aspects of economic historians’ reluctance to treat law as a possible source of economic and social change is that they are perfectly ready to treat law as an instrument of oppression. See Harvey, ‘English Inflation’,77; R.H. Hilton, ‘Freedom and Villeinage in England’, in Peasants, Knights and Heretics, supra note 1 at 184–190. Perhaps the explanation is the supposition that law as an instrument of oppression expresses accurately and without distortion the desires of its makers.

28. Ibid, at 73–78; for a better evaluation, see generally Hyams, Kings, Lords, and Peasants, supra note 4 at 221–65.

29. Palmer, R.C., The Whilton Dispute, 1264–1380: A Social-Legal Study of Dispute Settlement in Medieval England, (Princeton, 1984), 15–17Google Scholar.

30. Palmer, ‘The Origins of Property’, 1–47.

31. Mayhew, ‘Frappes de monnaies’, 160–72; Spufford, ‘Le rôle de la monnaie’, 357–60. The economic situation of England was determined by the coincidence of the two major sources, interacting but with separate origins: the greater control by tenants of the land as an economic resource (resulting from the common law and political decisions) and the availability of silver to facilitate the easy use of the land as an economic resource (resulting from the new German silver mines and passing through England via, among other things, the wool trade).

32. Bolton, English Economy, 73. See the cautions on the Fisher equation in Mate, ‘High Prices’, supra note 17 at 6–8.

33. Harvey, ‘English Inflation’, 68.

34. Mayhew, ‘Frappes de monnaies’, 160–65.

35. Bolton and Mayhew assert that little can be known concerning V for the late twelfth and early thirteenth centuries. Bolton, English Economy, 73–74; Mayhew, ‘Frappes de monnaies’, 174). That may be true in general, but not in this particular instance.

36. The increase in alienability is not a matter of dispute, but has been a matter of consensus among legal historians since Pollock, Maitland. F. and Maitland, F. W., The History of English Law Before the Time of Edward I, 2nd. ed. with introduction by Milsom, S.F.C. (Cambridge, 1968), 1:329–37Google Scholar. The only issue is whether the change occurred intentionally or by juristic accident. Palmer, R.C., ‘Feudal Framework of English Law’, 79 Michigan Law Review 1132 (1981)Google Scholar.

37. Alienation might have been quite significant, in that a tenant might well have been willing to sell a small portion of a tenement or the whole of a tenement held of other than his main lord. Usually, however, tenants tended to want to retain the fee and resist complete alienation. In such a society, less drastic options for tenants assume greater importance.

38. Pollock and Maitland, History of English Law, supra note 36 at l:332n; Milsom, S.F.C., The Legal Framework of English Feudalism (Cambridge, 1976), 103–104CrossRefGoogle Scholar.

39. Glanvill, IX. 1.

40. Ibid, at VII.i.

41. Thorne provides a chronology that (1) prior to 1166 homage had to be renewed at the death of either party, (2) after 1166 homage did not have to be renewed as long as either party survived, and (3) after 1176 the homage bar subsisted even to benefit the tenant's heir. The date of 1166 depended, apparently, on the supposition that the assize of novel disseisin became a general remedy at that time. It is thus better to use 1176 as a major changing point until it is clear how novel disseisin really developed. Thorne, S.E., ‘English Feudalism and Estates in Land’, 17 Cambridge Law Journal 200–201 (1959)CrossRefGoogle Scholar.

42. Glanvill, VII. 1. This statement applies only to the inherited land. The sociological explanation for the greater acceptance of grants from acquired lands (in feudal relations) is that lords preferred such arrangements: it tended to reduce the number of tenants with multiple lords.

43. Ibid.

44. Ibid. See Palmer, Whilton Dispute, supra note 29 at 28–60.

45. Glanvill, VII. 1. By Glanvill's time, the necessity for the heir's consent to ordinary grants to strangers had been superseded by the emphasis on warranty, leaving only certain categories of suspect grants particularly requiring the heir's consent: grants to younger sons, death-bed grants, and perhaps a few others. Otherwise, the heir's opposition was ineffective.

46. Ibid, at VII.2.

47. Palmer, ‘Origins of Property’, 21–24.

48. The Assize of Northampton identified the lord as the primary person responsible for keeping an heir out of the tenement, so that his approval was not presumed. Palmer, ‘Origins of Property’, 13–17; Milsom, S.F.C., Historical Foundations of the Common Land, 2nd. ed. (London, 1981), 134–37Google Scholar.

49. Palmer, ‘Origins of Property’, 8–11, 24. The grand assize asked the sworn panel who had greater right. The comparative nature of that issue meant that the panel, if so disposed, could consider all those discretionary values that lords and their courts had properly considered, although now less effectively because transposed from their natural setting. Thus transposed, those discretionary considerations seem largely to have died out in favor of strict rules of law, only partly because the grand assize declined in use.

50. Glanvill, III. 1. The language about a homage perishing conies from Glanvill and indicates the almost surreal quality that homage had taken on. Ibid, at VII. 12.

51. The lord and heir rule mandated that relatives play musical chairs with the tenement to prevent the lordship and tenancy from collapsing, regardless of whether the results were at odds with the intent of the donor. Once a homage had been established, it was not allowed to perish unless for complete lack of possible heir.

52. Palmer, ‘Origins of Property’, 12–23.

53. de Bracton, Henry, De Legibus et Consuetudinibus Angliae, Woodbine, G.E., ed. and Thorne, S.E., trans. (Cambridge, Mass, and London, 1968), 4:196, 215, 235Google Scholar.

54. Milsom, Historical Foundations, supra note 48 at 179.

55. Palmer, ‘Feudal Framework’, supra note 36 at 1133–34.

56. Text supra at note 53. Use of the grand assize had certainly declined between 1200 and 1220, but the grand assize was hardly an infrequent phenomenon still in 1220, because the writs of entry had not by that time taken hold of a large body of litigation: they were still used in only a few situations and then not very frequently.

57. Carpenter, ‘Was There a Crisis’, supra note 4 at 728.

58. Pollock and Maitland, The History of English Law, supra note 36 at 2:14, note 2: ‘Generally in a collection of charters we shall find two changes occurring almost simultaneously soon after the year 1200:—(1) the donor's expectant heirs no longer join in the gift; (2) the donee's “assigns” begin to be mentioned.’ Bailey found a few mentions of assigns in grants prior to 1200, in 1196 and 1199, but concluded that ‘There is no indication yet [in the reign of Richard I], however, that the bond of warranty can ordinarily extend further to mere assigns'. Bailey, S.J., ‘Warranties of Land in the Reign of Richard I’, 9 Cambridge Law Journal 197–98 (1945)Google Scholar.

59. Plucknett, T.F.T., Legislation of Edward 1 (Oxford, 1962), 136–61Google Scholar.

60. Ad terminum qui preteriit was not only the earliest, but also the most frequently used writ of entry. Early in the thirteenth century, the writ changed from mentioning a gage to mentioning a term. The difference is substantial, because that enabled the writ to protect a life tenancy also and not merely commercial arrangements. The motivation behind the change, however, is not clear, unless it was explicitly to make the writ more versatile. One would like to find a better reason.

61. Diceto, Ralph de, Ymagines Historiarum in The. Historical Works of Master Ralph de Diceto, Stubbs, William, ed., Rolls Series, vol. 68b (London, 1884), 74Google Scholar.

62. Palmer, ‘Origins of Property’, 25–39.

63. Ibid, at 37–39.

64. The beginnnings of the use (‘use’ here defined not only as one party holding for the benefit of another, but also holding in such a way that there is a divergence between co-existing legal title and moral entitlement: Palmer, Whilton Dispute, supra note 29 at pp. 200–208, 278) enabled tenants to treat their land like chattels, avoiding various burdens and facilitating the payments of debts even after the tenant's death. It is unlikely that that greater facility had such an enormous impact, however, because the relative increase in liquidity would not have been as great as that between 1180 and 1220.

65. Milsom, Legal Framework, supra note 38 at 183–86.

66. Bolton, English Economy, 82–84, 88–90. Investment in this way, of course, produces deflation in the shortrun, although it would contribute to exports within a relatively short time. The investment cycle emphasizes the inflationary pressure.

67. See text supra at notes 18–20.

68. This statement is equivalent to the normal historical statements that authority was becoming centralized, that loyalty was beginning to move from local (or lordly) affairs to the king's government.

69. Palmer, ‘Feudal Framework”, supra note 36 at 1133.

70. Bolton, English Economy, 73.

71. Warren, W.L., King John (Berkeley and Los Angeles, 1978), 190–91, 257–59Google Scholar.

72. Ibid, at 96–99, 102–105.

73. Ibid, at 154–73.

74. Ibid, at 174–80; Stenton, Doris M., English Justice Between the Norman Conquest and the Great Charter, 1066–1215 (Philadelphia, 1964), 88–114Google Scholar; Holt, J.C., Magna Carta (Cambridge, 1965), 38Google Scholar.

75. John's attention to the courts together with the discretion acknowledged to reside in the king in person as distinct from his ministers made his presence a worrisome matter, quite apart from his personality. D. Stenton, English Justice, supra note 74 at 93–114.

76. Milsom, Legal Framework, supra note 38 at 25. The perception that the king's prerogative was in large part not something extraordinary but merely a maintenance of old right explains why the royal prerogative did not receive much attention as such until the reign of King John. Lyon, Bryce, A Constitutional and Legal History of Medieval England, 2nd. ed. (New York, 1980), 496Google Scholar.

77. In this context, it is particularly interesting to note that one of the precursors of Magna Carta (1215), c. 39 was the protest against disseisins made by the mere will of royal ministers. The resolution in 1191 was that free tenants would be treated by judgment in the king's court ‘according to the lawful customs and assizes of the realm or by the mandate of the lord king’. Holt, Magna Carta, supra note 74 at 103. Magna Carta (1215), c. 39 is pointed precisely against royal disseisins by will, previously thought acceptable.

78. Note that the forty-day period was the same as the notice to be given for a meeting of the magnates to render counsel. Magna Carta (1215), c. 14.

79. Sayles regards the clause as a ‘legalization of war’ and in the end does not distinguish between the intent of the clause itself (first qualified by the correct comment that ‘there was no thought of deposing the Lord's annointed’) and the effect of the rebellion that followed on the royal intransigence toward distraint (‘Magna Carta… put down in black and white… that, if he abused his power, he forfeited his authority and position’. Sayles, G. O., The Medieval Foundations of England (New York, 1961), 406–407Google Scholar. Jolliffe imports into the clause the idea of diffidation, so that the clause legitimated feudal rebellion. Jolliffe, J.E.A., The Constitutional History of Medieval England from the English Settlement to 1485, 4th ed. (New York, 1961), 258–59Google Scholar. But the barons were supposed to distrain only, and the clause contains no hint of diffidation. McKechnie relates the clause likewise to diffidation and feudal rebellion and raised further the question of sovereignty: ‘If it had been possible to put so violent an expedient into practice, the “sovereignty”, or supreme power in England, would have been split in two. John would have held the sceptre only until his opponents declared that he had broken the Charter, when, by his own previously-granted mandate, it would pass to the twenty-five barons.’ McKechnie, William S., Magna Carta: A Commentary on the Great Charter of King John, 2nd. ed. (New York, 1914), 468Google Scholar. Holt's treatment is more accurate, but does not treat the clause's relationship to the common law. Holt, Magna Carta, supra note 74 at 239–40.

80. Holt, Magna Carta, supra note 74 at 206–211.

81. See Milsom, S.F.C., ‘Inheritance by Women in the Twelfth and Early Thirteenth Centuries’, in Arnold, Morris S., Green, Thomas A. et al. , On the Laws and Customs of England: Essays in Honor of Samuel E. Thorne (Chapel Hill, 1981)Google Scholar.

82. Milsom, Legal Framework, supra note 38 at 25; Palmer, ‘Feudal Framework’, supra note 55 at 1163.

83. Glanvill, 1.6; Palmer, Robert C., The County Courts of Medieval England, 1150–1350 (Princeton, 1982), 165Google Scholar.

84. Early Registers of Writs, Haas, Elsa de and Hall, G.D.G., eds. Selden Society, vol. 97 (London, 1970), 36–37Google Scholar (CC. 8, 10). I am inclined to reject the suggestions that Magna Carta, c. 34, precipitated the inclusion of entry words as jurisdictional clauses, because I cannot see any major change in writs of entry immediately after Magna Carta. Palmer, ‘Origins of Property’, 39.

85. Milsom, Historical Foundations, supra note 48 at 125–26.

86. See Holt, Magna Carta, supra note 74 at 226–29.

87. McKechnie, Magna Carta, supra note 79 at 381.

88. Milsom, Historical Foundations, supra note 48 at 410–11.

89. Holt casts doubt on the decisive influence of Stephen Langton in the drafting of the charter, and proposes instead the influence of judges, officials, and clerks. Holt, Magna Carta, supra note 74 at 175–200. The problem with that suggestion is that they were John's appointees. More likely drafters would be the baron's seneschals, who were both lawyers and administrators. They had both the sense of technicality and the responsiveness to baronial desires, as well as a wider perspective concerning the ‘free tenant'. See Palmer, R.C., ‘Origins of the Legal Profession in England’, 11 Irish Jurist 126–46 (1976)Google Scholar; Palmer, County Courts, supra note 83 at 113–38.

90. Milsom, Legal Framework, supra note 38 at 10–11.

91. Superiority or inferiority cannot be determined by the locus of the power to render judgments. Medieval courts often had the tenants rendering judgments, both early on in the king's court and routinely in county and feudal courts. The power to render judgments only establishes a group as superior if that corresponds also with social perceptions and politics. The barons, however, could well have perceived themselves as merely rendering judgments on the lord of the court, without denying (or concluding anything concerning) his superiority.

92. Milsom, Legal Framework, supra note 38 at 10.

93. Magna Carta was not a statute, but a grant. Such a royal grant was not subject to interpretation as strict rules of law by the court against the king: Magna Carta, like coronation charters, was a serious undertaking, taken seriously by all, but not rigid. This became even more so after c.61 was deleted from the document.

94. Milsom, Legal Framework, supra note 38 at 25.