Quia Emptores (1290)
Bill Long 12/23/04
The Common Law's Most Famous Land Law
This is the first of (I hope) many mini-essays I will write on the land law of the common law tradition. Law is interested in justice, at times, but is mostly proccupied with following the money. In 13th century England the money was in land. Merchants and craftspeople were relatively minor players. The church was a major influence because it not only possessed land from previous ages but was a very attractive legatee in wills because once land came to a church it would be spared the "feudal incidents" of inherited lands. That is, land in medieval England was held in a variety of "tenures" that required the "holder" to render some kind of service, or pay a tax, to a lord when the land changed hands or when something of importance happened in the life of the holder. When land was given to churches, the monetary and service duties to lords often stopped.
Most land, however, was held by barons/dukes/counts/and other aristocrats, and they let it out to people of lesser economic and social status to work the land. It is here that we need to introduce a few terms and state our problem.
This essay is not about feudalism, that medieval concept invented by 17th century lawyers and historians to describe a pattern of loyalty and land-owning from about the 10th - 15th centuries in sections of Europe. I need, however, to say a few things about it. The term is really up for grabs in scholarly discourse today, primarily because it has become loaded with as many levels of meaning as the phenomenon it was attempting to describe. On the one hand, the term can be used very narrowly, to describe the military service owed a lord by a vassal in exhange for the ability to farm land and reap some of the profits (the "usufruct") of the land.
On the other hand, the most famous treatment of feudalism of the last generation (Marc Bloch's account), tried to look at it much more broadly--as a social arrangement of interdependence that caught most medieval people in its net. So, we will lay aside the concept for now, even though our explanation of Quia Emptores requires us to use some of the language of feudalism.
The Problem behind Quia Emptores
Land was not "owned" in medieval England, as we think of the concept of ownership today. It was primarily "held," meaning that it was "occupied" by someone who held it and worked it for himself but also for a lord to whom he owed homage and fealty. The medieval concept of seisin expressed this notion of possession or occupation. Someone was "seized of the land." Actually, several people could be seized of the same parcel of land at the same time, with each owing a kind of service to the next person up the food (and land-owning) chain until it all came to rest in the King, the chief "holder" of all the land. It is seemingly much more complicated than this, but this is a picture that gets us started.
One of the points that is most unclear to me but needs eventually to be understood in order to comprehend medieval English land law is the extent to which land could be alienated by people who "held" the land. The term "alienation" in property law has nothing to do with Marxist philosophy of the relationship of workers to the bosses and to the means of production, but refers to the ability to "sell" the land, or, more precisely, to "convey" it to someone else. Who could do so and under what terms? On the one hand, there was a great deal of interest in a family being able to keep the land in the family (hence the development of the idea of primogeniture--inheritance to the first-born male), which would work against the concept of free alienation of land--since the "highest bidder" would no doubt not be a family member. On the other hand, in pre-Quia Emptores England there was an ability to alienate land if the terms of the grant of land had been fulfilled.
What I mean by this last sentence is that when land was given intergenerationally, through what was called an "intervivos transfer" (where the one seized of the land was still alive), the usual form of this transfer was "to X and his heirs" or similar language. This so called "estate in land" is known to property law professors as the "fee simple determinable," but the terminology is problematic since the concept of "fee simple" for us suggests absolute ownership whereas that idea was not present in medieval England (when did it come in, however?) In any case, the grant "to X [the son] and his heirs" represented a grant of land that attempted to keep the land in the family. However, as the law developed in the 13th century, this grant was interpreted to mean that as long as a heir to the son (the grandson) was born and his cries "were heard in the four walls," then the terms of the grant were fulfilled. Then, if the child died or, more gruesome, was killed, the grant, being fulfilled, would be of no effect. There would be nothing binding on the land to prevent it from being further conveyed.
And so we come to the issue provoking Quia Emptores ("Forasmuch as purchasers"). The son, with the terms of the grant having been fulfilled, was free to convey the land to someone else. He could do so in any way that he wanted, such as asking for a big "selling price" and then requiring minor services throughout the year, or more traditionally, asking for the same kind of services that he had to render to his "lord." He would therefore create an "under tenure." The word subinfeudation to describe this is first attested in English in 1611 in Randle Cotgrave's A Dictionarie of the French and English Tongues. The entry for the French term subinfeudation reads as follows: "French word--a subinfeoffing; the creating of an under tenure, or tenancie in fee." Let's continue to use the term.
So, the 12th -13th centuries increasingly saw subinfeudation as the social reality in England. Questions arise, however, as to why this might have been so disadvantageous to the overlords. Most scholarship says that the process of subinfeudation prevented the overlords from receiving their feudal incidents from the subinfeudee because his duty was only a mesne one--i.e., an "intermediate one", that is to the son who had conveyed the land to him in the first place and not to the overlord. But, why should this matter? Wasn't the son still charged with the same feudal incidents to his lord? I guess I don't fully understand the problem that subinfeudation presents. Nevertheless, it was this problem of cheating the overlords out of their rightful feudal incidents that led to the passage of Quia Emptores. Now we can get to that!
Copyright © 2004-2008 William R.Long