Article by C.M.A. McCauliff
Real property law in England was the most sophisticated and best documented branch of the law during the Middle Ages. It has, therefore, long attracted the attention of legal historians interested in exploring early legal approaches to property rights and disputes. Legal historians have concentrated on mapping out the substantive law of real property in great detail. More recently, social historians have studied the ways that property law accommodated, on the one hand, the needs of professional military and economic interests imposed on the land during the Norman Conquest, and, on the other hand, the pressures of family concerns.
After the Norman Conquest in 1066, lands were parcelled out in return for the military service that a knight, as the tenant of the land in question, was to provide to his lord in return for holding the land. This military relationship between lord and man put a definite stamp on early twelfth-century real property law. As military service became organized differently and not so closely associated with land tenure, the lord grew less interested in the military service of his tenant. The feudal incidents of military tenure nevertheless remained important to the lord, but then only as a lucrative source of income rather than as a method of supporting professional military service. As time went on, the tenant's family concerns also contributed to the character of real property law. Some of these concerns are indirectly reflected in surviving legal documents. Current historians have become increasingly interested in the light these documents might shed on the role women played in society and, more particularly, in the legal rights women enjoyed in their own real property.
It is important, nevertheless, to remember the social context in which these developments took place. It is tempting to look back at the twelfth and thirteenth centuries from our own perspective of individual and personal career fulfillment and attempt to measure in our terms how much each family member achieved this fulfillment. Individual personal and career fulfillment during that time period, however, whether for men or women, probably tells us less about the dreams and aims of that society than it does about ours. Demographers tell us that war, disease, and the limited ability to produce sufficient food carried off so many people that society thought more in dynastic and family terms than in individual terms. On the average, it took four children to ensure the passage of land to the next surviving generation. Even the personal career ambitions of men at court might be examined in terms of dynastic ambitions. Furthermore, the rules that had developed for transmission of land at death required a legitimate heir. Thus, not unlike marriage pressures on the princes of Wales in the twentieth century to choose unmarried, undivorced, and otherwise unemcumbered women to prevent doubts about the parentage of the heir, every person with land and had to consider marriage in order to produce a legitimate heir eligible to inherit that land. As Jane Austen described,“ it is a truth universally acknowledged, that a single man in possession of a good fortune must be in want of a wife.” By operation of the law, illegitimate children could not succeed to land at the parent's death; any land such a child was to receive had to be provided during the parent's lifetime.
With these differences from our own society firmly in mind, we may examine what the surviving legal records tell us about the origin of the doctrine of estates in land and about the rights the various parties had. The families wished to provide for children who would not inherit land at the death of their parent. These provisions existed in the context of primogeniture, inheritance by the first-born son at the death of his father. Younger brothers and sisters had to be provided for during their father's lifetime. If we remember the dynastic impulse, we realize that the father also wished to provide a way for the land to return to his heir if the father's younger child did not himself or herself produce heirs.
The form that these gifts took, therefore, had to be fashioned to meet these objectives in the face of requirements such as homage and warranty, which were controls that considerations of lordship had already imposed on the succession to land. When the lord enfeoffed his tenant and took homage, the lord in return warranted the land to his tenant. If the father gave land to his younger child in return for homage and that child died without heirs, the father (or his eldest son after the father died) was barred by the homage from getting that land back. As a consequence, fathers had to fashion gifts around homage: for girls, marriage portions given in liberum maritagium (frank marriage), meaning free from homage; and, for younger sons, gifts of land later known as entails. The evolving attitudes toward alienability of land reflected different balances of power within familial interests and between lord and man. This Article will set forth the substantive law on marriage portions and entails, and trace their development using published and unpublished cases from the twelfth and thirteenth centuries. The differences in social aims and in the aspirations and opportunities of women from our own society will also become apparent as we examine the means available to the donee to transmit wealth from her generation to the next.
About the Author
C.M.A. McCauliff.
Citation
66 Tul. L. Rev. 919 (1992)