Statutes of Mortmain - Bracton On Alienation

Bracton On Alienation

Bracton gives several examples of escheat occurring by a mesne lord (middle lord in the feudal structure): A enfeoffs B at a rent of 10 shillings. B enfeoffs C at a rent of 5 shillings. B dies without an heir. Is A entitled to 5, 10 or 15 shillings a year? While it can be argued that A is entitled to 15 shillings, it was Bracton’s opinion that A should only be awarded 10 shillings. A enfoeffs B at a rent of 5 shillings. B enfoeffs C at a rent of 10 shillings. B dies without an heir. Bracton thinks A is entitled to 10 shillings. Bracton held this problem to be without solution: Is A entitled to the wardship of C’s heir, if C held of B in socage, and B, whose rights have escheated to A, and held of A by knight’s service.

The worst case occurred when the tenant made a gift of frankalmoin - a gift of land to the Church. A wardship would be of no value at all. An escheat of the land (a reclamation of the land by the overlord) would allow the owner to take control of the land. But the act of placing the land in frankalmoin left it in the hands of a group of lawyers or others who allowed the use of the land by a Church organization. The overlord would have nominal control of the corporation which had never entered into a feudal homage arrangement. The corporation owed nothing to the overlord. Bracton was sympathetic to this arrangement. According to him the lord is not really injured. His rights to the land remain unscathed. It is true they have been significantly diminished. He had suffered damnum, but there had been no iniuria. Bracton was of the opinion that a gift of land to the Church could be voided by the heirs, but not the lord.

Throughout his work, Bracton shows a prejudice in favor of free alienation. Concerning subinfeudation, he argues that it does no wrong, though it may clearly do damage to the lords on occasion. It has been difficult to determine how much of this opinion is based on Bracton’s prejudice, and how much it corresponded to actual practice.

Bracton considers this problem: A enfoeffs to B to hold by a certain service and that B enfoeffs to C to hold the whole or part of the tenement by a less service. The law permits A to distrain C for the service due from B, but this violated equity. Then as to substitutions, even when B has done homage to A, nevertheless B may give A a new tenant by enfoeffing C to hold of A, and C will then hold of A whether A is agreeable to it or not. Bracton does not even expressly allow A to object that C is his personal enemy, or too poor to do the service. Pollock and Maitland consider this remarkable since Bracton does allow that the lord cannot substitute for himself in the bond of homage a new lord who is the enemy of the tenant, or too needy to fulfill the duties of warranty. The Statute Quia Emptores, 1290, ended subinfeudation.