Bibliography

Discussion

The question of consents, assents and participation in grants and gifts raises a number of inter-related questions, legal and anthropological. Anthropological issues have been better considered for 'France', since gifts to religious houses are more expansive in these clauses (White).

For 'France', the discussion has been wide-ranging, involving several inextricable questions. If consent is considered from the perspective of legal norms, customs or rules, how far does it reflect rights of those other than the donor? There, restrictions on alienation and challenges and recoveries (the retrait lignager) represented property rights of the heir and the family. On a yet wider front, the question has been raised whether the decline of consents in France indicated a transformation from communitarian notions of landholding to more individualistic ones, the tardiness of which deferred the development of a land market. Consents in 'France' were wider at one time, raising the question of the nature of the family and the possibility of changes from notions of cognatic (wider, perhaps extended or clan) to agnatic (narrower or nuclear, affective) conceptions of the family. Concomitantly, the presence of the laudatio parentum (kin assent) has been considered to reflect family solidarity and the preservation of power blocks in land. The decline of the laudatio might then be perceived as a weakening of kinship ties and the rise of individual rights in land. The laudatio was at its zenith in France c. 1050-1150, declining from 1150, but lingering to c. 1200.

Consents in England assumed a much different form. Hudson suggests that consents clauses declined in English charters after c.1170 (although some evidence exists for their sporadic later persistence) and that no more than a third of English charters contained consents clauses. Moreover, consent was prudential rather than a legal requirement. Secondly, consents were always narrower in England, confined to immediate heirs (whether son(s) or brother(s)) and to wives (interest of dower). Consents in England, then, seem to reflect a prima facie narrower conception of the family and the principle of unigeniture (probably primogeniture).

In terms of legal rules, customs or norms, the principal questions for England are such as:

These questions are clouded by other considerations, the first of which is the evidence of gifts to the religious. Gifts to the religious confound the meaning of consents, for consents may be interpreted as participation. Participation here refers to participation in spiritual benefits accruing from gifts to the religious. The meaning of consent in such gifts may thus only partly relate to the diminution of the expected inheritance. On the other hand, gifts to the religious were in perpetuity and thus a permanent loss to the fee, and so perhaps engendered an urgency on the part of the religious to secure the gift by formal consents. Moreover, the notion was established that gifts for personal salvation, for the donor's soul, were entirely reasonable and thus consent may have been a formality.

It might be further adduced that the decline of consents reflected two developments:

Consents did not, however, stand on their own as a means to securing the gift; other precautions were available:

Seignorial consents are less frequent, but do occur, and share many of the values above (including participation in spiritual benefits), but they raise the further question of the balance of interests in the land between lord and tenant -- in other words the lord's interest in the land as well as in the services owed from it. If seignorial consent was a legal rule or custom rather than precautionary, then it must have implications for the continuing estate of lords in the land and thus affecting questions of inheritance and alienability of land in relationship to lords.

Consents by the free men of the lord must be assumed to be the advice of the honorial baronage and thus may reflect actions which took place in the lord's court.

Consents by wives is more straightforward and can be considered to reflect the grantee's desire to free the land from any encumbrances of dower in the future. Dower was complicated because its rules were not fully worked through until Magna Carta, in this sense: it was not certain whether dower should be reckoned on the basis of the husband's lands (a) at the time of the marriage or (b) during the marriage or (c) at his decease. Secondly, dower was complicated by the existence of two notions of apportionment:

By the early 13th century, customary dower ousted nominated. (Janet Loengard)