Heritability

Inheritance and heritability

are considerably complex issues about which much has been written and there are diverse and opposing perceptions. Consequently, it is suggested that you might read two classic statements which suggest that inheritance/heritability was achieved later rather than sooner in the 12th century, and, by contrast, the most recent arguments for an earlier development of inheritance.

Bibliography

S. E. Thorne, 'English feudalism and estates in land' in idem, Essays in English Legal History (1985), 13-29.
S. F. C. Milsom, The Legal Framework of English Feudalism (1976), 154-86.
J. Hudson, 'Life-grants of land and the development of inheritance in Anglo-Norman England' in M. Chibnall, ed., Anglo-Norman Studies XII Proceedings of the Battle Conference 1989 (1990), 67-80.
idem, Land, Law and Lordship in Anglo-Norman England (1994), 65-153.
S. Reynolds, Fiefs and Vassals. The Medieval Evidence Reinterpreted (1994), 342-95 [a general critique of Milsom rather than specifically on inheritance].
J. Hudson, 'Anglo-Norman land law and the origins of property' in G. Garnett and J. Hudson, eds, Law and Government in Medieval England and Normandy. Essays in Honour of Sir James Holt (1994), 198-222.

[For a comparative perception, it's worth reading S. D. White, 'The discourse of inheritance in twelfth-century France: alternative models of the fief in Raoul de Cambrai', ibid., 173-97].

Discussion

The disagreement over inheritance, heritability and 'inheritance language' (Hudson) is so profound and complex that it will not be possible here to do more than suggest major points of comparative debate. The tide has tended to be against Milsom on most fronts, at least in published work, but most still acknowledge the depth of his thinking about these questions. Perhaps White's essay is closer to Milsom than the other recent writings, presenting a more nuanced picture. Disagreement with Milsom has tended to form on two fronts:

how far was the first half of the 12th century a 'truly seignorial world' and its concomitant discretionary lordship? and
were Henry II's actions inadvertent in creating the common law and supplanting seignorial procedures, or a deliberate policy?

For the purposes of inheritance and heritability, the first criterion is most important: how far was the early 12th century a 'truly seignorial world' in Milsom's adaptation of Stenton's paradigm.

Milsom re-created the 12th century principally from study of the plea rolls and the assizes in a retrospective way; references to charters in his work can be found, but are sparse. Basically, he relied on Stenton, the foundation of whose work was a quite intimate study of charters. Recent revision of Milsom/Stenton, such as Hudson's, has investigated the charter material again in extenso.

Milsom's basic premise was that, before the impact of the assizes of Henry II, inheritance was deferred. Discretionary lordship meant that the 'heir' had only an expectation of succession, a promise by the 'good' lord to his tenant about the future of the fee.

The debate thus centres on the interpretation of succession de facto, which most acknowledge: did succession de facto equate with the principle of heritability, suggested by Holt et al., or was it simply de facto succession?

Milsom's proposals may be illustrated by two quotations:

early 12th century: 'The heir does not succeed to his ancestor's property: he has a customary claim against the lord to be accepted as tenant; but only when he is so accepted, when his homage is taken and he is seised, does the tenement become in any sense his';
late 12th century: 'Inheritance becomes an automatic succession to what is clearly the ancestor's property. When the ancestor dies, the heir is at once entitled under abstract rules of law and enters without anyone's authority ... so that he [the lord] has no control over inheritance'.

Thus in the seignorial world, the lord's court decides succession by reference to custom, but its decision is conclusive and final; the lord has the discretion to accept or reject. After Henry II's assizes, succession is automatic by established rules without reference to the lord.

Inheritance language

The core of the matter is then the meaning of words purporting inheritance in charters, which occur in grants to lay tenants from the 1130s: sibi et heredibus suis; iure hereditario; hereditarie; hereditabiliter; in feudo et hereditate -- promise, expectation or rule? More particularly, what is the significance of grants to a tenant and one heir (sibi et heredi suo) which occurred in charters in the early 12th century? What too should we make of those early charters which are silent as to the nature of tenure? Finally, it should be noted that Tabuteau maintains that language of inheritance was common in Norman charters before the Conquest.

Re-grants

Some charters (even into the 1170s), when an heir succeeded, were confirmation charters issued by lords to acknowledge that inheritance/succession. In many cases, the verb reddere was employed -- what is its significance? Does a succession require the consent of the lord or is this merely a convention?

Hudson makes much of events on the estates of the religious, where, although canon law prohibited alienation and a grant in fee and inheritance was tantamount to alienation, fees became hereditary in the early 12th century. He suggests that this paradigm, the tendency to heritability on the lands of the Church, suggests heritability more widely. Perhaps the following questions may be raised:

were the lands of the Church vulnerable at this time?;
what was the status of the laymen to whom inheritance was ceded on these lands?;
would lay tenants-in-chief be in a similarly vulnerable position as the Church?