Fees, Honours and Estates
| Author | Christopher Jessel |
| Pages | 363-380 |
Chapter 22
Fees, Honours and Estates
22.1 FEUDALISM
The manor existed in the context of the country as a whole, not just alongside the vill, parish and town. This chapter considers a legal structure that was so closely bound in with the manor that it cannot be separated. It must, however, be distinguished. It is the fee, and what is traditionally called the feudal system of which it formed part.
The ramifications of lordship, homage and allegiance governed what we would call foreign policy, the relations between the rulers, great and small, of Western Europe, their alliances in war and their support in peace. That is beyond the scope of a book about manors, but it should be borne in mind that the lord in his manor house knew himself to be part of a legal structure that bound kings and emperors. The King of Scotland owed homage to the King of England for Huntingdon, the King of England owed it to the King of France for Normandy or Aquitaine, and the status of Brittany or Burgundy was unfathomable.
The word ‘feudal’ is a late coinage and was not used at the time the feudal system is supposed to have existed in the eleventh and twelfth centuries. The Latin word was feudum anglicised as feu, fee or fief. It was used to describe
1 There is substantial literature on the feudal system: Bloch, M, Feudal Society (English translation by LA Manyon) (Routledge Kegan Paul, 1961) is much cited and is clear and readable; Poly, J-P and Bournazel, E, The Feudal Transformation 900–1200 (Holmes and Meier, 1991) covers developments in France from a traditional viewpoint. For a contrary interpretation, see Reynolds, S, Fiefs and Vassals (Oxford University Press, 1994).
364 The Law of the Manor
something granted in return for services, the fee as we would say. It usually took the form of land but could be money or other rights. Fiefs developed as part of a way of government, incorporated by the relationships of homage and fealty (discussed in 18.1), but this was simply part of the law of the land. In England it was far from being any sort of separate system. On the Continent the perception was different. In the middle of the twelfth centuries a number of treatises, later collectively known as the Libri Feudorum, were written in northern Italy,
setting out rules of tenure; these eventually led over much of Europe to a distinct set of legal rules known as feudal law, but this did not extend to England which by then already had its own legal system.
The word ‘feudal’ in English is encountered in the sixteenth century; and in the seventeenth century appears in the Tenures Abolition Act 1660 as ‘feodal’ (referring to the right of peers to sit in the House of Lords). An instance of the use of the word by a judge occurs in 1695 in The Lord Gerard v The Lady Gerard
It should be appreciated that the words are employed in a variety of very loose senses. For instance, politicians often describe the nineteenth-century system of landlord and tenant as feudal. Thus, in October 1995 the Labour Party issued a paper entitled An end to feudalism proposing leasehold reform in blocks of flats.
After the election of the Labour Government, the proposals led to the Commonhold and Leasehold Reform Act 2002. That Act also created a new form of freehold ownership and the relationship between the owner of a unit in a commonhold and the commonhold association in some respects corresponds to
2 See generally Reynolds op cit 215 ff.
3 (1695) 1 Salk 253, 91 ER 222.
4 Dobson, F and Rainsford, N, An End to Feudalism – Labour’s new leasehold reform programme, Labour Party, October 1995.
a form of tenure, including, in s 49(3), an equivalent to a right of escheat if the commonhold is redeveloped. It therefore created a new type of fee rather than ending such arrangements. That can hardly be what the authors of the paper had in mind.
Having said that, the words ‘feudal’ and ‘feudalism’ and the expression ‘the feudal system’ are widely used, including by some judges, and it will be convenient to do so here. The law has, over the years, developed and been interpreted in the light of what lawyers believed had happened and the way they thought previous generations had understood their rights at earlier times. It is therefore necessary to recognise the accepted account, however mistaken it may have been. It should not be taken as describing what modern historians think happened, or how people who lived in the eleventh century saw matters, but as a legal description of how later generations understood the past in order to justify their later rights (se 27.4). It was developed in periods up to the eighteenth century by lawyers who had little understanding of history in the modern sense and who based their explanation of then contemporary systems of landholding on what they understood or misunderstood of ideas worked out in the Middle Ages.
22.2 DEVELOPMENT AND INTRODUCTION OF FEUDALISM
The feudal system is said to have emerged out of the collapse of the Carolingian Empire. Carolingian ideas were themselves derived from those of the late Roman Empire. Emperors had as their senior assistants men with the title comes or companion. The companions of the emperor were available for any important task – to command an army, govern a province or run a department of state. The title survived and when Charlemagne revived the empire he used such men, called comte in French or Graf in German, to govern his realms. Charlemagne gave a count jurisdiction over an area known as a county and made him responsible for justice and local defence. Originally counts were men from another part of the empire and were moved on every few years; but later the office became hereditary in local aristocratic families. To support the costs of his administration a count received the revenues from royal lands in the county. This was known as a benefice. The concept seems to have originated in a grant of Church lands at the request of the king to a secular lord for a limited time, but later it came to have a wider meaning. The benefice was held as a fief from the emperor (or later a king or another lord) in return for performing these governmental services. Lands in benefice were distinguished from his inherited family lands which the count owned outright or allodially (24.3).
366 The Law of the Manor
Thus, a count had two types of land: his allodial property and his benefice held from the king by service. He would need little of either for his own direct exploitation and both were occupied by tenants who paid rents or gave services in labour and produce. Around his lands, but within the county, were other allods, some being the estates of other aristocrats, others being the farms of smallholders. The count ran his county on the same model as the empire. He granted land as fiefs to his followers or vassals as benefices to be held in fee in return for services. Some of the land was granted out of his allod, some out of his benefice. He held courts for his tenants to take their advice and decide disputes between them. As royal or imperial representative he held courts for people generally. As lord he held separate courts for his vassals. In much of the Continent these two originally distinct jurisdictions tended to become confused, much as the court leet and court baron did in English manors.
In the ninth century Europe suffered invasions by Saracens, Vikings and Magyars. Any might strike without warning. There was not the wealth or the administrative structure to organise a common defence on the lines of the Roman legions which had guarded the frontiers. Instead, defence was in depth and every valley and settlement had its strong point, which became a castle. No region was exempt from attack – some were vulnerable to two or all three of the invaders. Furthermore, in uncertain times counts and other lords became effectively independent rulers and fought their neighbours. When an attack came the count would gather his vassals who held from him and owed him services and protect and defend them and their lands. Each of them likewise called on their own subtenants. Allodial holders were protected, if at all, secondarily. A man without a lord was...
To continue reading
Request your trial