Quia Emptores - The Statute

The Statute

Quia Emptores was a kind of legislative afterthought meant to rectify confusion in:

• land tenure
• frankalmoign
• subinfeudation
• mesne lords
• petty serjeanty
• substitution
• apportionment
• economic delution

It indirectly affected the practices of:

• distraint (also called: distress or districtio), previously legislated for in the Statute of Marlborough (1267)
• escheat
• wardship
• marriage
• socage

Statute Quia Emptores is one of a long list of legislative acts from the reign of Edward I of England which had the purpose of concentrating power in the monarchy. England had a plethora of courts and varying legal traditions. Some direction toward order had been laid down in the Magna Carta, the Provisions of Oxford, and in the scanty legislation of Simon de Montfort, 6th Earl of Leicester. Edward I set about to rationalize and modernize the law. He reigned for thirty-five years. The first period, from 1272–90 consisted of the enactment of Statute of Westminster 1275 (1275) and the Statute of Gloucester (1278), and the incorporation of recently conquered Wales into the realm. These were followed by the Statute Quo Warranto and the Statute of Mortmain (1279). The latter was designed to stop the increasing amount of lands which were ending up in Church ownership. The Statute of Westminster 1285 (1285) contained the clause De Donis Conditionalibus which shaped the system of entailing estates. The Statute of Winchester was passed in 1285. This was followed by the Statute Quia Emptores (1290), which was only about 500 words in length. It was meant to deal with various unsettled complications. It provided that subtenants could not be allowed to alienate land to other persons while retaining the nominal possession and feudal rights over it. The seller had to relinquish all rights and duties to the new buyer, and retained nothing. This was the end of subinfeudation. The middle lords or mesne lords (who could be common persons) and had granted land for service to those lower on the social scale could no longer exist. The old feudal sequence was: the King granted land to a great lord, who then granted to lesser lords or commoners, who in turn repeated the process, becoming lesser lords (mesne lords) themselves. This was subinfeudation. The effect was to make the transfer of land a completely commercial transaction, and not one of feudalism. There were no provisions placed upon the Crown.

Quia Emptores ended the ancient practice of frankalmoign whereby lands could be donated to a Church organization to be held in perpetuity. Frankalmoign created a tenure whereby the holder (the Church) was exempt from all services, except trinoda necessitas. Quia Emptores allowed no new tenure in frankalmoign, except by the Crown. The issues arising from frankalmoign had been addressed by the Statute of Mortmain. Quia Emptores took Mortmain one step further by banning outright, the formation of new tenures, except by the Crown.

The questions inevitably arise about the Statute Quia Emptores: was it proactive or reactive? And who benefited: King, lords or free tenants? Historians are still divided. But it is logical to conclude that Quia Emptores attempted to formalize practices of exchanging money for land, which had been going on for some centuries. There were other problems in inheritance which had festered since the time of William I. In a proclamation from 1066, William swept away the entire tradition of familial or allodial inheritance by claiming that "every child be his father's heir." The reality was different, and resulted in primogeniture inheritance. The reorganization of the country along the lines of feudalism was both shocking and difficult. Traitors forfeited their land to the Crown. This principle was designed to weaken opposition to the Crown. Frequently, it punished innocent members of the traitor's family. This was not popular. There was a saying from Kent: "Father to the bough, son to the plough (the father hanged for treason, the son continues to work the land)." The rule in Kent was that confiscated lands would be restored to the innocent family members. Seized lands throughout England were often restored to the family, despite what royal decrees may have indicated. It is arguable that the institution of inheritance and subsequent alienation rights by tenants ended feudalism in England. Quia Emptores only formalized that end. In essence, feudalism was turned on its head. The ones with the apparent rights were the tenant class, while the great lords were still beholden to Crown.

The issue of alienation of serjeanty had been settled long before Quia Emptores. In 1198 the itinerant justices were directed to make an inquiry into the nature of the King's serjeanties. This was repeated in 1205 by King John who ordered the seizure of all Lancaster serjeanties, thegnages and dregnages that had been alienated since the time of Henry II of England. These could not be alienated without a royal license. The Charter of 1217 reaffirmed this doctrine. Henry III of England issued an important ordinance in 1256. In it the King asserted that it was an intolerable invasion of royal rights that men should without his special consent, enter by way of purchase or otherwise, the baronies and fees that were holden to him in chief. Anyone who defied the decree was subject to seizure by the sheriff. Later case law indicates jurists remained largely ignorant of this decree, which suggests the Crown was reluctant to enforce it.

Quia Emptores addressed the question of outright sales of land rights. It declared that every freeman might sell his tenement or any part of it, but in such a manner that the feoffee should hold the same lord and by the same services, of whom and by which the feoffor held. In case only a part was sold, the services were to be apportioned between the part sold and the part retained in accordance with their quantities.

The Statute was considered a compromise. It allowed a continuance of the practice of selling (alienating) land, tenancy, rights and privileges for money or other value, but by substitution. One tenant could be replaced by many. In this, the great lords were forced to concede to the right of alienation to the tenants. They had been at risk of losing their services by apportionment and economic dilution. This practice had been going on for some time. Quia Emptores merely attempted to rationalize and control these practices. The great lords gained by ending the practice of subinfeudation with its consequent depreciation of escheat, wardship and marriage. History would indicate the great lords were winners as well as the Crown, since land bought from lowly tenants had a tendency to stay within their families, as has been noted supra.

Nothing in Quia Emptores addressed the King's rights. No-one seemed to have imagined that the tenants in chief of the crown were set free to alienate without royal license. On the contrary, at the time the right of alienation by substitution was being set in Statute, the King's claim to restrain any alienation by his tenants was strengthened. In the opinion of Pollack and Maitland, it is a mistake to conclude that Quia Emptores was enacted in the interest of the great lords. The one person who had all to gain and nothing to lose was the King.

The process of escheat was affected by Quia Emptores. In Glanvill's day, there was an occasional mention of ultimus heres; the land escheats (excadere) to the lord in the absence of a clear tenant heir. If a tenant was outlawed or convicted of a felony the King could exercise the ancient right of wasting the criminal's land for a year and a day. After that, the land returned to the lord. There was a distinction between felony and treason. One guilty of treason forfeited all lands to the King. John and his heirs frequently insisted on seizing terrae Normannorum, "lands of the Normans", the English land of those who preferred to be Frenchmen rather than Englishmen when the victories of Philip Augustus forced a proclamation of allegiance. Frequently, disavowal of a feudal bond was considered a felony. In this, the lords could escheat land from those who refused to be true to their feudal services. On the other hand, there were tenants who were sluggish in performing their duties, while not being outright rebellious against the lord. Remedies in the courts against this sort of thing, even in Bracton's day, were available. But they were considered laborious, and frequently ineffectual in compelling the desired performance. The commonest mechanism would be distraint, also called distress (districtio): the lord would seize some chattel, and hold it until performance was achieved. This practice had been dealt with in the 1267 Statute of Marlborough. Even so, it remained the most common extrajudicial method applied by the lords at the time of Quia Emptores.

Expulsion of tenants from the land for failure to perform was always a difficult idea, and usually necessitated a lengthy court battle. The lord who escheated could not profit from the land, and had to hold it open for the tenant who could fulfill the obligation at a future date. Quia Emptores laid out, with some definition which had previously been lacking in the issue of tenures. In a sense, the old stereotypes were locked in place. Every feoffment made by a new tenant could not be in frankalmoign, since the donee was a layman; it would be reckoned by the laws of socage. Socage grew at the expense of frankalmoign. Subinfeudation was ended. The tenant in chief could not alienate without the license of the King. Petty serjeanty came to be treated as "socage in effect".