In lieu of an abstract, here is a brief excerpt of the content:

CHAPTER 5 THE RISE OF THE ENTAIL SUMMARY The Maritagium The Effect ofHomage on Mariiagium Evolution of the Entail Conditional Pees Bracton on Conditional Pees Maritagia become Alienable The Statute De Donis The Duration of an Entail The Nature of the Heir's Interest PAGE 546 547 548 549 550 550 551 552 554 As we have seen,l it was possible under Anglo-Saxon law to impose limitations upon bookland which resemble the entail rather closely. There is no evidence, however, that this practice survived much later than the Conquest, or that it was used to any considerable degree even in Anglo-Saxon times. We have also remarked that one of the most frequent occasions for alienating land was the establishment of a younger branch of the family, and particularly the endowment of a daughter. It is in this latter that the origin of the entail must be sought. THE MARITAGIUM The maritagium or " marriage" was a post-Conquest institution which in the course of time took fairly definite form as the result of many years of custom.2 The terms and incidents of a maritagium were perfectly well known and in many cases were not embodied in any written document. We do find a few examples, however, of deeds from the twelfth century which show us the principal characteristics of the gift in free marriage, and confirm Glanvill's words. In the twelfth century the gift in maritagium seems regularly to declare that the donor gives the lands in question together with his daughter to the donee in frank marriage-it is worth noting that the earliest forms are gifts to the husband alone and not to the wife nor the two jointly.3 From Glanvill we learn the conditions attaching to such a gift. He tells us' that if the marriage is " free ", the 1 Above, p. 525. • For the earliest known examples, see Pollock and Maitland, ii. 16 n. 2, and cf. Coronation Charter of Henry I (1100), c. 3. S Round, Ancient Charters (Pipe Roll Society), no. 6; Madox, ParmI/fare Angficanum, cxlv, cxlvi, cxlviii. t Glanvill, vii. 18. 546 THE RISE OF THE ENTAIL 547 feudal services will not be due (for it is clear that he contemplates the establishment of frank marriage by means of subinfeudation). Feudal services, however, will revive at the moment the third heir enters. The descent offrank marriage seems already in Glanvill's day to have followed the same canon as the thirteenth century would have expressed in the formula" to A. andB. and the heirs of their bodies". As soon as the third heir enters feudal services revive-and clearly the presumption is that by this time \three generations average one hundred years) the new family will become established and perfectly capable of performing feudal services. THE EFFECT OF HOMAGE ON MARITAGIUM Glanvill also tells us that the third beir is the first one who shall do homage \whether the marriage is free or not) which henceforth shall be due from all his heirs. The reason for this is that while homage has not been done there will always be the possibility of the land reverting to the donor upon the extinction of the donee's line. When, however, homage has been taken upon the entry of the third heir the lord becomes bound to warrant and his reversion is therefore destroyed.1 The evidence all goes to show that these feudal technicalities were imposed upon an older institution2 whose characteristics apparently were heritability by a limited class ofheirs, failing which there would be a reversion to the donor unless three heirs in succession had entered; in the latter case the gift became unrestricted and the reversion was destroyed. Glanvill does not say so, but it would rather seem that until the third heir had entered the maritagium could not be alienated;8 it is only by supposing some such rule as this that the provisions concerning feudal service and the reversion take a consistent shape. Glanvill furthermore assures us that until homage has been taken the tenants are in a particularly weak position, since the donor and his heirs are not yet bound to warrant. This seems to be a difficulty created by applying feudal rules to an institution which was really more ancient. In order to circumvent it the constitution of a maritagium was accompanied by a pledge of faith binding the donor and his heirs to maintain the arrangement. Now the pledge of faith was...

Share