the fourteenth century: the rules were well known and well understood. Unfortunately, the rules did not always result in clear and obvious decisions about who actually possessed seisin to land, particularly in complicated inheritance cases in which previous generations created a patchwork of claims through conditional alienations and grants in fee tail. When ambiguity about title to land mixed with a patronage network built around military service and a court system subject to influence and intimidation, the outcome was not rule of law in any modern sense.

Land wars within the aristocracy occasionally broke out into civil war and overt violence. However, the continuing conflicts over land between aristocrats were often carried out within the courts. There the social persona of the individual lords affected the outcome. Control over land meant control over local government. Land remained a major marker of success and indicator of relative status within the dominant coalition.

3.5 Bastard Feudalism and the Impersonalization of Property

Two aspects of bastard feudalism illuminate how control of resources and functions within a natural state can be used to structure a coalition. One is the heart of the nineteenth-century Whig criticism: that the use of money to structure relationships was inherently corrupting. The other goes back to the fundamental point that no states are single actors, that all states are organizations of organizations. The English story is not just the king versus the barons. In the case of English feudalism, organizations started with landholding and powerful individuals identified as landowners after the Norman Conquest, but steadily moved to more complicated organizational forms within and outside of the state.

Traditional Whig history makes the struggle to constrain the arbitrary power of one man central to the development of representative institutions by which the governed grant their consent to be governed. The privilege of holding court was valuable in post-Conquest England. When the king moved into the business of adjudicating land disputes in the twelfth century when he gave freeholders access to the royal courts, the manorial lords suffered a loss of revenue in the form of fines and court costs from cases that left their courts and moved to the royal courts. In traditional terms, this was a struggle between the aristocracy and the crown. As Coss argues (1989, p. 41), for example, the loss of revenue was potentially just the tip of the iceberg: royal incursion into local affairs threatened the social position of the nobility and gentry: “If certain latent possibilities had been allowed to

develop and crystalize, they [the nobility and gentry] would have been faced with the prospect of social extinction.” The reaction of the lords against the king to defend their privileges strengthened the lords at the expense of the king.

As McFarlane pointed out, this way of thinking about the problem was not productive. When armies were no longer raised through feudal levies, but instead through personal military contracts with powerful subjects financed through more general taxation and scutage, the balance between royal and baronial interests was no longer maintained solely by the land. With the rise of bastard feudalism, lords began to substitute monetary payments for direct military service. The increasing importance of other sources of power and rents, including trade and commerce, meant that land became less central and less critical as a measure of power within the dominant coalition. As conditions changed in English society, the allocation of power within the coalition had to change as well. It was a fiction to focus solely on the land as the stabilizing and balancing interest in the coalition, except perhaps in the relatively short period immediately after the Conquest when England was a fragile natural state.

Most of these changes were reallocations of power within the dominant coalition, for example in the form of land wars. The adjustments took place constantly whether the crown was involved or not. Given the institutions of medieval English society, political order depended on the formation of a durable organization, an alliance of interests that usually included the king. On some occasions, however, the king was a relatively weak and ineffectual member of the ruling coalition; at other times, the king was eliminated altogether.

Going beyond McFarlane and his students, we can see that England in the Middle Ages was a basic natural state governed by a dominant coalition whose rents were generated by limiting access to land, prayer, fighting, and justice. Elites held the coalition together through an interlocking set of personal relationships based on land but bolstered by relationships based on monetary exchange. This is the essence of bastard feudalism. To repeat, the significant organizations of production, governance, and salvation were all tied to the feudal manor: control over land amounted to control over manors. Control over the fundamental organizations of English society was all vested within the structure of the state. Powerful lords controlled more than one hundred manors apiece, and some of the most powerful lords were bishops. The hundred men at the top of the dominant coalition continuously worked out the arrangements that held English society together. Through

its fascinating complexity, English land law enabled limited access to land at the higher and politically more important levels of aggregation and moved toward more open access at the level of small individual tenants who held alienable tenures from greater lords, then gradually lost their conditions of feudal service and moved to cash transactions.

History, culture, and institutional inheritance mattered enormously. The origins of the land law in the fragile natural state created after the Conquest created opportunities, difficulties, and contradictions. When land reverted to the lord on the death of the tenant – whether a tenant in chief or a minor freeholder – the redistribution of land could be used to maintain the coalition at the national and local level. However, once a measure of stability had been attained, no one had a distinct interest in maintaining the reversion system. If tenants were willing to pay for more secure land rights, the landlords could also be better off by granting them those rights in return for more service. Over the course of the twelfth century, inheritance through lineal descendants became the rule. However, heritability came in the form of strict settlement on lineal heirs. Seisin was not devisable by will. Moreover, at the very top of the hierarchy, the king never surrendered his right to take the lands of the tenants in chief back into his hand at their death. Land was only one of the many valuable assets and functions that English society used to consolidate and order their basic natural state, but it was a central one.

Secure and transferrable property rights in land were valuable for their own sake. At the very least after 1295 and Quia Emptores, part of the institutions of English land law were moving toward secure ownership of land. More secure property rights in land, however, developed in a manner that still left ambiguity about exactly who owned what property at times of death and transfer. From our modern-day perspective, the ambiguity appears as a flaw in the system. Yet from the perspective of England as a basic natural state, ambiguity facilitated the dominant coalition’s need to use control over land to structure and adjust the distribution of political and economic power as circumstances changed. Landownership in the medieval English system was not only inherently personal but it also embodied the personal relationships that held the dominant coalition together. To reallocate power within the dominant coalition, the system required some flexibility to transfer control over land among members of the elite as individuals gained or lost power. Who controlled power in the English state was most visibly apparent by who controlled land, particularly as the control of land translated directly into control of government functions at the local level. If elite property rights in land had been defined without ambiguity – and

therefore if land distribution could be altered only by sale or grant – then the English system of government would have lost an important degree of flexibility. The irregular reallocations of land through land wars (with or without violence) within the system of English land law reflected the changing political power of individuals within the coalition and were an integral part of what made the system work. Unfortunately, the system did not always work smoothly and, on several occasions, broke down into civil war. These wars were over more than just land; they typically concerned power, prestige, honor, and revenge as well. Nevertheless, control of land was the central mechanism by which power was attained and exercised (Bellamy, 1989, p. 35). The greatest of these, the Wars of the Roses, occurred in the latter half of the fifteenth century (Pollard, 1988).

This complicated history illuminates why no teleology or inevitable forces move societies toward more mature institutions. The complexity of land transfer at time of death, including the costly possibility of wardship if the male heir was a minor, created incentives for the lords to work around the legal problem. No inevitable forces moved to make this system more rational and transparent. De Donis was as logical a development for powerful landowners as Quia Emptores. Whereas Quia Emptores clarified ownership, De Donis enormously complicated ownership.

Whether the development of the use and trust to evade death duties was a positive or negative innovation depended on your position, and here as well there was no inevitable movement toward more efficient arrangements. Although the king suffered a loss of revenue from uses so did the major lords because they too held rights of wardship with their own tenants (Bell, 1953, p. 1). As individuals, lords (major or minor) had incentives to avoid the death charges by creating uses. However, as a group, the king and parliament suffered a reduction in revenues as uses sapped a revenue source of the king and the tenants in chief.23 In 1536, the crown and parliament together supported an attempt to suppress uses in the Statute of Uses. As we have seen, the attempt failed. However, the act’s passage suggests that both the royal and aristocratic elements of the dominant coalition of England in 1536 were quite willing to suppress what appears to us to be a fundamental

23Because the Chancery courts were willing to enforce use agreements in equity and because the crown derived revenues directly and indirectly from the Chancery, the king had another competing set of fiscal incentives to allow uses to develop. The fiscal interests of the king and the major lords were not symmetric, however. How much a transfer of feudal obligations in tax obligations affected individual lords depended on their relationship with the king and with their tenants.

organizational improvement in English society. Likewise, the failure of the Statute of Uses cannot be laid at the feet of a penurious parliament unwilling to grant the king his revenues. Many members of the House of Lords had similar fiscal interests in abolishing uses as the king.

In response to the failure of the Statute of Uses, parliament passed the Statute of Wills in 1549. The continued ability to employ uses meant that most major landholders would evade wardship.24 Allowing tenants in chief to devise their land by will clarified the state of land title on the death of a magnate. No longer did the Byzantine inheritance rules alone govern the descent of most land. Property rights in land suddenly got much clearer in the sixteenth century, and the incentives and opportunities for land wars were proportionately reduced.25 Parliament did not intend the crown to lose revenues by the Statute of Wills; in the same year they endorsed the formation of the Court of Wardship and Livery to enforce the crown’s right to wardship, an issue we return to shortly.

Similarly, the shift in the common way of defending title from novel disseisin to ejectment in the late fifteenth and sixteenth centuries had profound implications. Property rights for freeholders and copyholders became better defined and much more easily defended. The extension of similar rights to copyholders was equally important in clarifying ownership.

No one understood these implications at the time. Changes in the land law were not part of an overall scheme to improve the quality of property rights in land; they were the result of ongoing dynamics within English society. Simpson argues that the royal common law courts saw a possibility to capture some cases from the equity courts, which were willing to hear copyhold cases on the basis of equity (Simpson, 1986, pp 163–4). Again, it is a fiscal interest argument that led one set of courts to change its rules to capture some business from another set of courts.26

More secure and transparent ownership and transfer of land meant land became less useful as a tool for balancing interests within the dominant coalition. The changes in land law that began in the 1540s substantially reduced the fiscal advantages to kings and magnates from owning and holding land directly and enjoying their feudal incidents. Perhaps we should

24Simpson (1986, p. 191). It is interesting that Simpson falls back for his explanation on why events occurred to the fiscal situation of the king.

25Bellamy (1989, pp. 123–6). Suggests that cases of maintenance and forcible entry had declined in number and, more importantly, in the status of the defendants by the early seventeenth century. By then, the major lords had stopped using the courts to obtain land.

26For a more general analysis of the fiscal impact of jurisdictional competition on English law see Klerman (2007).

not be surprised, therefore, that this period witnessed a marked decrease in the amount of land owned by the crown. Although Henry VIII seized church lands, he also followed a policy of progressively selling the royal landholdings, and Elizabeth continued divesting royal land. Historians almost invariably attribute this policy to fiscal crises facing the crown, but it seems clear that changes in fiscal returns to crown lands were also involved.27

The logic of the natural state suggests that the crown lands, while an important source of revenue, would be used in ways that stabilized the coalition beyond simple revenue maximization. Despite the focus on revenues and the idea that the sixteenth-century crown was using “a revived fiscal feudalism [that] squeezed wealth out of the landed classes” (Stone, 2002, p. 61), the issue of wardship that has arisen throughout this chapter and the Court of Wards and Livery under Henry VIII and Elizabeth provide a clear example of how rulers can create rents to coordinate the coalition rather than to maximize fiscal revenue. The court was established in 1540 and administered as a natural state institution: creating rents by limiting entry and then using the rents to secure the stability of the dominant coalition by giving the major players an incentive in maintaining the regime that generates the rents. Rents were not taken from the court in cash, however. When an estate passed into wardship and came under the purview of the court, the court sold the right to wardships, usually to friends and allies of the king. They then often sold the wardship to the mother of the ward. Because the prices of both sales were recorded, we can observe both the price that the court received for the wardship and the amount that the ultimate customer actually paid for the wardship.

Hurstfield investigated the operation of the Court of Wards and Liveries and came up with a surprising conclusion: the court was never run in a way that maximized revenue from wards and liveries. The king received only a quarter of the price paid for wardships.28 Lord Burghley was master of the court from 1561 until his death in 1591, and he actually administered the court to benefit members of the king’s coalition rather than to maximize revenues: “The significance of the feudal revenues in the Tudor period lies not in their direct yield to the state but as a method of payment, albeit indirectly and capriciously, to ministers and civil servants” (Hurstfield,

27For the Crown Estates see Hoyle (1992); for the aristocracy in general see Stone (1965, 2002); and for royal finances see Dietz (1964).

28“The profits of fiscal feudalism were, in essence, ambivalent . . . that the unofficial profits from fiscal feudalism, taken as a whole, were at least three times as high as the official ones. Contemporaries thought the disparity was much higher than this” (Hurstfield, 1955, p. 58); see also Hurstfield (1949, 1953).