Legal and Reputed
| Author | Christopher Jessel |
| Pages | 143-157 |
Chapter 8
Legal and Reputed
8.1 CREATION OF MANORS
The manor was a complex of lands, tenures, jurisdictions and services. Some of these could be separated from the manor without prejudicing the continued existence of the whole, but if too much was taken away the manor itself ceased to exist. Even if the manor was regarded by laymen as continuing, the law considered that it continued by reputation only. Rights could still belong to a reputed manor, but they were more fragile than the full rights of a legal manor. Manors cannot now be created and most (perhaps all) former legal manors have become reputed manors. To understand how this happened it is necessary to consider how manors first came into existence, what their vital features are, and how, by losing those features, they dissolve. This chapter discusses history back to Anglo-Saxon times but, as pointed out in the Introduction, this may bear little connection to what people then thought; it is a later interpretation with later ideas of what from that perspective was seen to have happened.
One key legal concept is the distinction between allodial land and land held by tenure. Some historians consider this was not particularly important in the eleventh century and only became so on the Continent later
Allodial land is land held outright and absolutely. A holder may, of course, have owed duties as a citizen. He had to pay taxes, perhaps serve in the army, and may have been responsible for local administration, for the repair of roads, bridges and so on, but the land was conceived as being his and that of his family after him. Land held by tenure, by contrast, is granted by a superior on specific terms (5.1). The terms may be similar, such as to serve as knight or repair town walls, but these were seen not so much as duties of a citizen as consequences of
1 Reynolds, S, Fiefs and Vassals (Oxford University Press, 1994).
144 The Law of the Manor
a bargain which, if broken, meant that the superior, often the king but sometimes a mesne lord, could take the land back. The relationship between lord and vassal was initially seen to be personal so that the holder, the tenant, may not have been able to pass the land on to his son, or only with consent, or subject to making a payment to the lord and offering homage.
It is not clear whether land in the early Anglo-Saxon kingdoms was held allodially or by tenure, and contemporaries may not have seen a distinction. The kingdoms were small, about the size of a shire, and relationships were personal. It seems that most land, at least that of the more prominent holders, was initially folcland, that is land held by folk custom. The holder was bound to render to the king certain services, either in person, such as fighting in the army, or in kind, such as providing corn, or beer or honey. Later, kings granted – first to the Church and then to lay lords – the right to receive customary dues and, in return, the lords rendered to him the trinoda necessitas of service in the fyrd or army, burgh defence and bridge repair. The grant was made by a written charter or bok and is known as bookland (2.2). Titles guaranteed by a written document were safer than traditional titles based on custom and therefore holders tended to ask for a charter. As the bok was issued by the king or under his authority it seems to have become accepted that all land was in some, possibly undefined, sense, derived from the king. Sometimes whole hundreds were granted in this way
(19.2), but more often, especially in later times, grants were smaller and resembled what became manors,
In theory land could become held in one of three ways. First, the king could grant to a lord the right to receive the services of a group of cultivators, or a lord’s predecessors may have had such rights since earlier times. Secondly, the king could grant a lord vacant land or waste, which the lord could then allow a farmer to occupy as tenant. Thirdly, an allodial landholder could voluntarily (or otherwise) accept the protection of a lord by a process known on the Continent as ‘commendation’. King Athelstan, who was the first effective king of all England, made a law
2 Maitland, FW, Domesday Book and Beyond (Cambridge University Press, 1987; first published
1897) 244.
3 2 Athelstan c 2 (c 930) s 1-2; Abels, RP, Lordship and Military Obligation in Anglo-Saxon England (University of California Press, 1988) 87, n 44; Stubbs, W, Select Charters from the beginning to 1307 (Oxford University Press, 9th edn, 1913) 74.
In practice, the first of these ways of holding land was how most arrangements worked or were understood to work. There can have been little vacant land suitable for a wholly new settlement. While something like commendation no doubt existed, in practice it would be a bold landholder who would say to an existing lord ‘I do not want you as my lord any longer and I am going to another’. To the extent that he could, and still retain the land, it might be seen as allodial. There are several references in Domesday Book to alodiarii but these are regarded as still holding from a lord and the expression may refer to some feature of tenure such as inheritance rights.
English law did not develop in total isolation from the Continent but it appears that, after the Conquest, ideas were at least clarified and a new terminology, in French or Latin, brought with it new ideas. By the end of William the Conqueror’s reign all land not part of the royal demesne ceased to be allodial (if it had been) and was held in fee by tenure. Manors could be held directly of the Crown, as part of an honour or as sub-manors of a greater manor. Indeed, a sub-manor could be held by copyhold
At the time of Domesday Book in 1086 nearly all land was in a manor and most manors were grouped in honours (22.4). This assumes a similar state of affairs before 1066 since it describes the situation in the time of King Edward the Confessor in the same terms as its own account of the position in 1086. There was some non-manorial land, held by the occupier direct from the king, in which case it was said to be held ut de corona, as from the Crown; but even then where possible Domesday assumed a manor even of only a few acres. Within a manor or honour, land which belonged to or was occupied by a tenant was held from the lord. If the manor or honour was itself held in demesne by the king (and perhaps as much as a quarter of England was so held) then the land was said to be held from the Crown ut de honore, as from an honour, which here includes a manor, although the expression ut de manerio was sometimes used. If the king then granted that honour (or part of it) to a subject, all those who had held their land ut de honore held from the new lord. That did not apply to land held ut de corona, which could only come into a manor if added to it or if a new manor was created (so long as that was possible). Such land was said to be held in capite, that is in chief. The distinction became important in relation to the seigniorial dues which could be taken by the Crown on the death of a tenant
(24.5).
4 Maitland op cit 153–4.
5 Sir Henry Nevill’s Case (1613) 11 Co Rep 17a, 77 ER 1166; but see R v Stafferton (1610) 1
Bulst 54, 80 ER 756: ref Aylesham Norfolk.
146 The Law of the Manor
A manor or honour could itself be held from a mesne lord or from the Crown and, if the latter, it was held either ut de corona or ut de honore. The greatest honours were held by the leading men of the country – lay nobles or churchmen – as tenants in chief ut de corona and this entitled them to advise the king in his council or later to receive a writ to attend the House of Lords. The expression ‘chief lord’ refers to any superior lord, so that where a tenant held from the lord of a sub manor, the lord of the head manor was chief lord; but the expression ‘tenant in chief’ applies only to barons and other great lords.
In theory, new manors could still arise after 1066 in one of two ways. One undoubted way was out of an existing manor either by grant by subinfeudation of a sub-manor of which it was then held or by division of a manor. The sub-lord or lord of part received the benefit of the services of some of the tenants, part of the demesne and waste and the right to hold a court. A new manor could also arise where a lord granted land, possibly former waste, to occupiers to hold...
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