Edward I is widely recognized as a strong king and a great legislator who worked to increase the power of the Crown.  Yet historians who have examined his legislation and its effect on English politics and society have often attempted to categorize his means for achieving power by assessing him on a spectrum of feudal and anti-feudal — determining whether Edward sought to strengthen the Crown’s position within the feudal system or whether he sought to do so at the expense of the social ties that organized the aristocracy of his day.[1]  For some such as T.F.T. Plucknett, there was “no possibility of choice,” as the feudal system was part of “the very atmosphere which Edward and his advisers breathed”;[2] yet most historians, Plucknett included, have not found a lack of conscious awareness a barrier to judging the effect of Edward’s reign on the state of English feudalism.

The historians of the early part of this century who commented in depth on Edward’s statute Quia Emptores have generally been of the opinion that it was an act intended to conciliate the nobility that had the result of damaging, if not destroying, the social order that had been based on military service and land tenure.  Only in the last 35 years, especially with the work of J.M.W. Bean,[3] have historians sought to challenge this position, arguing for a more flexible and more compelling view of Quia Emptores as a reasonable measure in the context of a fiscally oriented English feudalism.  A narrow view of feudalism that places the highest emphasis on land tenure and military service will necessarily see Quia Emptores as a threat to the feudal order; but this model does not necessarily describe how English society was organized in this period, nor does it accurately encompass the interests of lords and tenants.  By refusing to impose a given model of feudalism and instead taking English society as they find it, by accepting monetary aids and incidents as a full and coequal part of tenurial obligations, historians can achieve a more accurate view of Quia Emptores and its effects on English patterns of landholding.

The problems that had confronted feudal organization in Edward’s day were not entirely new.  Despite the institution of primogeniture, some fractionalization of medieval estates was inevitable; though among sons property was often handed intact to the eldest, among daughters equal partition was a widespread custom, and Plucknett writes that division of land among a number of heiresses was “of daily occurrence.”[4]  Since this fractionalization could occur with each generation, the days when tenants owed obedience to a single lord — if there ever were such days — were long gone, and by the end of the thirteenth century the tenurial map of England was terribly confused.  With this pressure for division as well as the desires on the part of families to provide for younger sons, to exchange land for other goods, or to donate to the Church, tenants both great and small came to seek the freedom to alienate their lands as they saw fit.

There were also baser reasons for tenants to wish to alienate — namely, to avoid the so-called “incidents” of feudalism, the obligations beyond military or rent service that could be quite profitable for the lords.  Foremost among these was wardship; if the tenant died with an infant heir, the lord of whom he held would possess the land until the heir reached the age of majority, in the meantime taking the land’s revenues.  Lords were known to exploit this opportunity — Magna Carta in 1215 strove to restrict the king’s efforts at doing so[5] — and would occasionally choose to grant the land to someone else, a move that was illegal but nonetheless difficult for a child heir to defend against.[6]  Lords also could take possession of the land if the tenant committed a felony, and they had the highly remunerative rights to arrange the marriages of a deceased tenant’s infant children.

As a result, tenants attempted to shelter their lands from the lord’s control through subinfeudation.  When a tenant left an infant heir, his lord could only take in wardship what the original tenant had held directly.  This requirement therefore created an incentive for the tenant to enfeoff another with a portion of his lands; the new tenant would hold onto the portion of land even during an heir’s minority, though during this period he would hold of the original lord rather than of the heir.  As a result, the original lord could not exploit those lands in wardship.  Alternatively, a tenant could enfeoff the eldest son directly, which eliminated the need for a third party.[7]  These were not complicated loopholes in an otherwise well-drawn legal system:  the ability to enfeoff another with one’s lands was at the foundation of the landholding system, and only significant legal change could protect the interests of lords against their tenants.

It was in this environment of threatened lordship that Edward I issued his great statute on subinfeudation, Quia Emptores.  The statute began by noting the damage the chief lords had experienced when their tenants enfeoffed others with land; they had “many times lost their Escheats, Marriages, and Wardships of Lands and Tenements belonging to their Fees,” a thing that seemed to them “very hard.”[8]  The statute then offered in response a two-part exchange:  every free tenant would be allowed to alienate lands at his pleasure, but only under the condition that the feoffee would hold of the chief lord rather than of the tenant and be responsible to that lord for services.[9]  In other words, purchasers of land could enter only through substitution, at the same level in the feudal chain as the sellers; the lengthening of that chain through subinfeudation was prohibited.

Viewed as a response to the danger posed to the feudal order by unrestricted subinfeudation, Quia Emptores can hardly be considered a success.  Far from protecting English feudalism, it has been viewed by most historians of this century as marking its end, preventing the creation of new ties of dependence and causing the feudal structure to ossify. To T.F. Tout, Quia Emptores represented a “deadly blow” dealt “to the feudal principle itself”; without the creation of new ties, “feudal obligations became gradually relaxed, and finally sank out of sight altogether.”[10]  To Maurice Powicke, the statute’s “unexpected results” deprived the relationship of lord and man of a “tenurial basis.”[11]  Yet to Plucknett, in what is perhaps the harshest assessment, Quia Emptores “slowly dissolved the nexus of tenures which constituted a manor” — so that when in the fifteenth century the relationship of lord and man again became a potent force, it was prevented from becoming aligned with land tenure, and so was channeled into “what is customary to call ‘bastard feudalism.’”[12]

There can be no question that Quia Emptores, at least in theory, fundamentally altered the way Englishmen held land.  But before one accuses it of bastardizing feudalism, it is necessary to have a clearer idea of what “feudalism” is understood to mean. Tout, Harding and Plunckett do not entirely agree, but each emphasizes the centrality of military service.  Tout argues that English feudalism survived Quia Emptores only where local and border warfare required the regular summons of levies, and that by and large “the empty obligation of fealty. . . . soon fell into oblivion.”[13]  Harding sees feudalism’s “decay” as military service was commuted to scutage and feudal aids replaced by national taxation; yet he also sees primogeniture as fundamental, arguing that feudalism was “giving way” to the desire of men to alienate or entail lands for their children.[14]  And Plucknett sees feudalism as a “vast edifice” with “military, social, and psychological” supports.[15]

To these historians, services are the core of the tenurial obligation and aids merely a side issue.  This is the position that Bracton took:  “if the lord have only a relief, let him be content therewith, although wardship and marriage of the heir are more valuable . . . .  [T]he fee is not the property of the lord but the tenant, and the lord has nothing in the fee except the services due to him.”[16]  Plucknett follows him and argues that these aids were the “natural expression of duty and deference,” perhaps “mingled with social solidarity between lord and tenant” — in other words, statements of “genuine and spontaneous” feeling and in no way central to the feudal contract.[17]  Indeed, Plucknett sees the decline of feudalism as beginning when these aids were commercialized,  considered as “casual windfalls in the lord’s account” and “occasional bonuses to cheer the investor in seignories.”[18]  The fixing of aids in the Statute of Westminster had indicated that “feudal institutions were no longer capable of running under their own power,”[19] and Plucknett twice uses a phrase similar to “robbed feudalism of its meaning”[20] to describe the effects of fixed aids and the division of holdings among multiple lords.

In this context, it is all the more ironic — and puzzling — that a statute that apparently destroyed the military, social, and psychological bonds of English feudalism would have been issued, as Powicke describes, “at the instance of the magnates” who were at the top of that social order.[21]  Despite Maitland’s claim that the king was the “one person who had all to gain and nothing to lose” from Quia Emptores,[22]  Tout points to Edward’s common interest with the magnates, and Plucknett argues that one should not even separate the magnates and the other lords:  “the problem of subinfeudation was exactly the same for any lord, be he great or small.”[23]  After all, Edward had attempted such a rule for his own domains in 1260 while earl of Chester.[24]  It may well be that to conciliate “the great Men of the Realm,”[25] as the statute states, Edward had (in Harding’s words) “unintentionally petrified feudalism,” preserving the financial value of old social bonds by halting the system’s development and eliminating the lords’ ability to create new ones.[26]

But the description of the effects of Quia Emptores as equally drastic and unintended seems strange.  Why did this class seek legislation that reduced its power?  Why would none of the magnates or lesser lords realize that their interests were being compromised? A more satisfying answer may be provided by Bean:  the reason why the lords did not view themselves as tearing down the social structure is that they were not.  Bean argues that historians should not be limited by a preexisting conception of what the feudal order should look like:  the “feudalism” of England at this time already placed an emphasis on fiscal rather than military aspects, and the reforms of Quia Emptores were designed to protect incidents perhaps more central to tenure than service.

Bean speaks strongly against the view in which military service was “the core of the relationship between the feudal lord and his tenant,” with the incidents merely provisions to guide otherwise complicated successions.[27]  Instead, he argues that the incidents “were at least as important as military service in the creation of feudal tenures”; theoretically, they worked against entirely hereditary tenure and stood to show that the land still belonged to the lord, however long it had been granted through the generations to the tenants. [28]  Tenure was indistinguishable from ownership if the land did not at some point revert back to the lord’s control.  Furthermore, on a practical and historical level, the payments were treated since the days of William Rufus and Henry I as a substantial and central form of feudal revenue.[29]  There was no evidence of a feudal golden age in England in which land tenure was exchanged solely for military service; Bean argues that English feudalism was “in its origins as much a fiscal as a military institution” and was thus in no way dealt a death blow by Quia Emptores or the monetization that Tout, Harding, and Plucknett decry.

In fact, one can find reason to believe that incidents were of increasing importance in the thirteenth century.  One piece of evidence is the development of new techniques to reduce lords’ income, combined with the new statutes or other provisions that were created to check their use. Because a religious corporation never died, married or committed felonies, instead holding on to its lands with a “dead hand” (“mortmain”), religious houses were natural foils to evade the obligations to one’s lord.  A tenant might enfeoff a religious house with his lands, in which case the lord would be unable to obtain any benefit from his rights of wardship, marriage, and felony; the religious house would then grant the lands back to the tenant on relaxed terms.[30]  This practice was found to be so effective that it was explicitly banned by the barons in clause 43 of the 1217 reissue of Magna Carta.[31]  A similar subterfuge involved renting lands to straw buyers at rates far exceeding its actual value; the parties would agree that the service had been satisfied in advance until the end of a certain term, which happened to coincide with the majority of the heir.  When the original tenant died, the original lord would have no land to take in wardship but would instead be due all of the rent-service that was not paid in advance — that is, nothing.  When the heir reached majority and the term finally ended, the buyers would have no desire to pay the large rent-service and would end their agreement, leaving the heir fully in control of his property.[32]  This technique survives for historians mainly because it was prohibited in clause 6 of the 1267 Statute of Marlborough.  How effective these prohibitions were cannot be measured exactly; however, the text of the Statute of Marlborough indicates the difficulty the courts faced in determining “whether such Feoffments were made bona fides, or by Collusion.”[33]

It is clear that the mechanisms for evading feudal incidents were perceived as a significant threat to lords’ income in the thirteenth century.  It might well have been an equally great threat before that period: we should not always expect that conflicts newly resolved by statute are therefore also new.  For instance, the death of tenants who held of multiple lords often gave rise to multiple claims to marriage rights and physical custody of the infant heir; this issue was settled by the second Statute of Westminster in 1285, but the issue must have been at least as old as the institution of wardship itself.[34]  Lords had long had to worry about loss of military or knight service through subinfeudation — though responsibility for such service was in theory ‘viral’ and passed down from tenant to tenant, in practice the long chains of tenure that separated the chief lord from those who actually held the land tended to reduce his ability to collect, and tenants who held small amounts from many lords were more likely to be willing to risk default.[35]

Yet there are reasons to consider the loss of incidents through subinfeudation, as opposed to the loss of services, a substantially more pressing problem in this era than previously.  Due to inflation and changes in economic and military organization, the value of personal knight service as an obligation for land had decreased, as had the importance of scutage among other taxes the Crown had imposed.  Additionally, many of the various reliefs and aids that could be demanded of a tenant — for inheritance, ransom, the marriage of a daughter or the knighting of a son — had been fixed in monetary terms and would decay in value as time went on.  Escheats and incidents were now among the most valuable aspects of a lordship, and attempts to divert them must have weighed heavily on the minds of lords.[36]  The use of subinfeudation to deprive lords of their incidents could not be checked without substantial legal change, and it was this change that Quia Emptores provided.

The increased emphasis on aids and incidents is also largely compatible with the story told by the concern for mortmain.  The Church was a highly undesirable tenant, both because it failed to pay incidents but also because it was often given land in exchange for spiritual services, such as masses for the dead, that did not help fulfill the tenant’s obligations for knight service. Indeed, clause 39 of the 1217 reissue of Magna Carta prevented a tenant from alienating so much of his land that he would be unable to maintain the services to his lord; this provision has been interpreted as referring especially to gifts given in frankalmoign, free alms to the Church.[37]  But by 1279, when gifts to the Church were restricted by the Statute of De viris religiosis, or Mortmain, the concern over the loss of services in the preamble is coupled with that over the loss of escheats.[38]  Furthermore, in what Plucknett calls a “remarkable concession,”[39] lords were allowed to keep their services as well as “their Wards and Escheats” from lands reclaimed from the Church, even if the king had reclaimed them.  Ignored in the 1217 charter, in the 1279 statute incidents and services are treated as equally central aspects of land tenure.

Given this view on the centrality of aids and incidents, one can see Quia Emptores as an attempt to preserve rather than destroy the social system.  The preamble of the statute mentions the loss of “Escheats, Marriages, and Wardships” as “manifest Disheritance” with not a word on services.[40]  Indeed, its effects would be relatively neutral on services; the lord had the right to distrain a sub-tenant’s goods, meaning that subinfeudation was not especially threatening except in its tendency to multiply the number of tenants and decrease their reliance on any one lord.[41]  Yet the multiplication of tenants through substitution would pose the same problems, by decreasing tenants’ reliance on individual lords and making collection of services more time-consuming.  Incidents, not services, were endangered by subinfeudation and its related subterfuges, and no explanation need be manufactured for why feudal lords acted to undermine feudalism in attempting to protect their rights.

Finally, one cannot accuse Quia Emptores of having killed feudalism without considering its actual effects.  Pollock and Maitland portray the statute as a two-part move: it provides for free alienation, but bans subinfeudation — tending to expand the feudal map horizontally, as it were, but preventing its vertical expansion.  Yet its impact on patterns of landholding should not be overestimated.  First, the restriction on subinfeudation did not apply to the Crown, which was a lord but not a tenant and could make new tenures at will.  Second, the permission to alienate by substitution was not granted to the tenants-in-chief, who were still required by an ordinance of 1256 (and custom that extended back further) to seek royal license before alienating lands, even by substitution.[42]  Third, the prohibition on subinfeudation was not complete, but was subject to the king’s license, since the Crown claimed the profitable right to free anyone from obligations under the statutes.  This license was widely granted, meaning that there was still a significant degree of subinfeudation after the statute’s enactment.[43]  Fourth, new means of diverting feudal incidents that did not rely on subinfeudation were already available and had been employed.[44]  Finally, the statute applied only to lands held in “fee simple”; lands held in tail or for a term of years were exempt, meaning that creations of new tenures were still possible and could be widely used.[45]

As a result, Quia Emptores did not change as much in practice as it seemed to do in theory, and it cannot be seen as a drastic end to feudal arrangements of landholding.  Many previous trends were allowed to continue under the statute, and its theoretical changes would serve to protect lords’ interest in the land rather than remove it.  The statute arose out of the balancing of a number of interests in a complex social environment, and cannot be seen as a concession to feudal lords that resulted in feudalism’s destruction.[46]  Nor is there reason to blame Quia Emptores (if blame be deserved) for the onset of “bastard feudalism.”  If one takes a narrow view of English feudalism that hinges on military service, by the time Quia Emptores was issued in 1290, feudalism was already well on its way out and the seeds for “bastard feudalism” already planted; mercenaries had been used on the island since before the Conquest, and Bean notes that subinfeudation in return for military service “had virtually ceased” before the close of the twelfth century.[47]

In assessing the impact of Quia Emptores on English feudalism, we might well follow the earlier advice of Plucknett and that of Michael Prestwich, who argues that “attempts to categorize the legislation of Edward I in class terms, or as ‘feudal’ or ‘anti-feudal’[,] are doomed to failure.”[48]  Attempts to fit English society into preconceptions of feudalism will necessarily distort the past.  The social order of England in 1290 was one very compatible with the desire for Quia Emptores; if it was not one that we wish to label “feudal,” we cannot blame the statute for that result.  Quia Emptores did not represent a dramatic social change in the ownership of English land; rather, it was one more in a line of attempts to protect the institutions of wardship, marriage, and felony — institutions central to the social order — against the dangers to that order that unrestricted subinfeudation posed.

Works Consulted

J.M.W. Bean, The Decline of English Feudalism (Manchester: Manchester University Press, 1968).

G.R.C. Davis, Magna Carta (London: British Library, 1989); excerpt available online at http://www.bl.uk/diglib/magna-carta/magna-carta-text.html.

Alan Harding, A Social History of English Law (Baltimore: Penguin, 1966).

F.W. Maitland, The Constitutional History of England, 1908 (Cambridge: Cambridge University Press, 1968).

T.F.T. Plucknett, Edward I and Criminal Law (Cambridge: Cambridge University Press, 1960).

---, Legislation of Edward I (Oxford: Clarendon, 1949).

Frederick Pollock and F.W. Maitland, The History of English Law Before the Time of Edward I, vol. 1, 1895 (Cambridge:  University Press, 1952).

Maurice Powicke, King Henry III and the Lord Edward, 2 vols. (Oxford: Clarendon, 1947).

---, The Thirteenth Century (Oxford: Clarendon, 1953).

Michael Prestwich, Edward I (New Haven:  Yale University Press, 1988).

---, War, Politics, and Finance under Edward I (London: Faber, 1972).

Statutes of the Realm, Vol. 1,  1810 (London:  Dawsons of Pall Mall, 1963).

G. Templeman, “Edward I and the Historians,” Cambridge Historical Journal, 10:1 (1950): 16-35.

T.F. Tout, Edward the First (London: Macmillan, 1896).

[1] G. Templeman, “Edward I and the Historians,” Cambridge Historical Journal, 10:1 (1950): 29.

[2] T.F.T. Plucknett, Edward I and Criminal Law (Cambridge: Cambridge University Press, 1960):  22.

[3] J.M.W. Bean, The Decline of English Feudalism (Manchester: Manchester University Press, 1968).

[4] Plucknett, Legislation pp. 88-9.

[5] The charter provided that “The guardian of the land of an heir who is under age shall take from it only reasonable revenues, customary dues, and feudal services,” and this was to be done “without destruction or damage to men or property” (G.R.C. Davis, Magna Carta (London: British Library, 1989); excerpt available online at http://www.bl.uk/diglib/magna-carta/magna-carta-text.html).

[6] Plucknett notes that the heir had no common-law remedy against such a practice until he came of age, when he could file a lawsuit; a new cause of action was created in the first Statute of Westminster to correct this (Plucknett, Legislation pp. 81-2).

[7] Plucknett, Legislation p. 79.

[8] Quia Emptores, 18 Edw. I (1290), Statutes I, p. 106.

[9] Statutes I, p. 106.

[10] T.F. Tout, Edward the First (London: Macmillan, 1896): 133-4.

[11] Maurice Powicke, The Thirteenth Century (Oxford: Clarendon, 1953):  379-80.

[12] Plucknett, Legislation p.108.

[13] Tout, p. 133.

[14] The second Statute of Westminster — 13 Edw. I (1285) — had regulated conditional gifts only five years before Quia Emptores, emphasizing the principle that “the Will of the Giver . . . shall be from henceforth observed” (Statutes I, p. 69).

[15] Plucknett, Legislation p. 78.

[16] Bean, p. 45.

[17] Plucknett, Legislation p. 78.

[18] Plucknett, Legislation p. 78.

[19] Plucknett, Legislation p. 78.

[20] Plucknett, Legislation pp. 78, 88-9.

[21] Powicke, p. 357.

[22] Frederick Pollock and F.W. Maitland, The History of English Law Before the Time of Edward I, vol. 1, 1895 (Cambridge:  University Press, 1952):  337. Maitland argues that the Quia Emptores was in essence a victory for the Crown; in exchange for an end to subinfeudation, the great lords had had to concede the free ability of their tenants to alienate through substitutes, while they themselves were often prevented from doing so by royal ordinance.

[23] Plucknett, Legislation p. 103.

[24] Plucknett, Legislation p. 5.

[25] Statutes I, p. 106.

[26] Harding, p. 88.

[27] Bean, p. 2.

[28] Bean, p. 5

[29] Bean, p. 5.

[30] If one assumes that the value of the land is roughly equal to that of the service and the incidents together, the religious house had profited by obtaining the lands without being obliged to pay the incidents, and the tenant had profited by receiving his own lands at a lower rate of service.

[31] Bean, p. 50.

[32] 52 Hen. III (1267), Statutes of the Realm, Vol. 1,  1810 (London:  Dawsons of Pall Mall, 1963):  21.

[33] Plucknett argues that the category of “bona fides” was a  foreign one to English law at this time, and that its first introduction in this statute, given that it is not invoked again for centuries, is another indicator of the fact-finding difficulties enforcement of the statute would cause juries (Plucknett, Legislation p. 80).

[34] Bean, p. 15.

[35] Bean, p. 41.

[36] Bean, p. 48.

[37] Bean, p. 42.

[38] 7 Edw. I (1279), Statutes I, p. 51.

[39] Plucknett, Legislation pp. 97-8.

[40] Statutes I, p. 106.

[41] Pollock and Maitland I, p. 333.

[42] A royal ordinance of 1256 (which may merely have codified past practice) had noted the loss of wardships and escheats due to subinfeudation, as well as the inability of tenants-in-chief to fulfill their service obligations; it therefore banned all alienation of lands held in chief without the king’s license, and ordered sheriffs to seize any lands thus alienated in the future (Bean, p. 67).  This raises the question whether the tenants-in-chief would have agreed with Tout’s assessment that the exact chain of tenure was without “any political bearing” and even in its legal aspects was “rapidly becoming a matter of archaeological rather than practical interest” (Tout 133-4).

[43] The grants of licenses became far more frequent after 1294, when Edward I was struggling with finances and the campaigns in Gascony and was likely seeking both revenues and support from the lords (Bean 76).

[44] When mesne tenants were allowed to alienate freely, any control their chief lords had over their alienations was removed.  The tenants could therefore engage in such practices as enfeoffing themselves jointly with their wives, so that if the husband committed felony the wife would receive the lands and support him, as in the case of Thomas of Wayland (Bean, pp. 87-8).  A ban on subinfeudation would have no effect on this procedure so long as substitution were available.  Similarly, tenants could also enfeoff a straw man who would then enfeoff them jointly in turn, so that when the husband died the wife would receive the property and a wardship would be avoided (Bean, p. 88).  In an attempt to rein in these practices, many lords attempted to reinterpret Quia Emptores, arguing that while the tenant has the unlimited freedom to sell, the purchaser is guaranteed no right to enter without a license; this interpretation was denied by Parliament in 1315 (Bean, pp. 90-1).

[45] Statutes I, p. 106.

[46] Bean, pp. 94-7.

[47] Bean, pp. 306-7.  Additionally, Bean argues that the institutions of retainers and of livery and maintenance were more a result of lengthy wars that required the availability of knights on call rather than lords’ inability to grant land tenure as payment.

[48] Prestwich, War 229.