The Legal Framework of English Feudalism: The Maitland Lectures Given in 1972

Out of Print

Professor Milsom works out a fresh view of the beginnings of the common law concerning land. The received picture depends upon progressive assumptions:-

• key words began with their later meanings;
• the law began with abstract ideas of property;
• a tenant's title to his tenement was never subject to his lord's control;
• the lord had no discretion, only the power to decide disputes according to external criteria;
• jurisdiction in that sense was all the lord lost as royal remedies developed;
• and all the tenant gained was better protection of unaltered rights.

It is a picture of procedural changes taking place against an unchanging background, with the feudal structure at the beginning almost as insubstantial as it was to be at the end.

This book sees a world in which that structure was real. It was reduced to formality, and legal ideas were transformed, by a juristic accident. At first there were only the reciprocal obligations of lord and tenant, existing by custom but enforced in the lord's own court.

The earliest royal remedies were not alternative to that court, but controls to be invoked if it had not followed the customs. But when the lord's court could be overridden, it became unimportant; and what had been obligations enforceable there, if at all, became property rights having an absolute existance in the law of the king's court. The process is traced in the contexts of sanctions against a defaulting tenant, of claims to the tenement, of grants and of inheritance.

Preface
With some expansion in detail, this book consists of lectures given in Cambridge in 1972 at the invitation of the Managers of the Maitland Memorial Fund; and it is now published with the aid of a generous grant from the Fund.

To the Managers, to Mr David Yale, and to those historians and lawyers who so bravely listened, I am deeply grateful. There were power cuts at the time, and the lecturer peered from a wavering patch of candle-light much as his lectures tried to make out what sort of world lies in the darkness behind our earliest legal records.

These are lights that canntt come on again; and we may never be sure of the answers to many individual questions. I shall be content if it is agreed that the questions arise, and therefore that the world cannot have been quite as we have supposed.

S.F.C.M.